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[2011] ZAGPPHC 68
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Mondlane and Others v Minister of Safety and Security (05/27921) [2011] ZAGPPHC 68; 2011 (2) SACR 425 (GNP) (29 April 2011)
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG DIVISION)
CASE
NO: 05/27921
DATE:29/04/2011
In
the matter between:
JORDAN
A.
MONDLANE
.....................................................................................
1st
PLAINTIFF
AUGUSTINO
S.
BANZE
.....................................................................................
2nd
PLAINTIFF
JEREMIA
BANNY.
................................................................................................
3rd
PLAINTIFF
DANITO
NKUNA
.................................................................................................
4th
PLAINTIFF
And
MINISTER
OF SAFETY AND
SECURITY
........................................................
DEFENDANT
JUDGMENT
ZONDO,
J
Introduction
[1]
The four plaintiffs instituted action against the defendant for
damages for unlawful arrest, detention and malicious prosecution.
In
addition the first and second plaintiffs also sued the defendant for
damages suffered by them as a result injuries they sustained
when a
certain police officer shot and wounded them. The defendant has been
sued on the basis that as the Minister responsible
for the police he
is vicariously liable for the conduct of the police in arresting the
four plaintiffs, detaining them and shooting
and wounding the first
and second plaintiffs. At the trial that followed, the claim for
damages for malicious prosecution was not
pursued. It probably had
been withdrawn earlier.
The
witnesses
[2]
At the trial three of the plaintiffs gave evidence. Those were the
first, second and fourth plaintiffs. By agreement between
the parties
the evidence of the fourth plaintiff was confined to the issue of the
motor vehicle in which the plaintiffs were travelling
on the day when
they were arrested. The parties agreed that no adverse inference
should be drawn against the fourth plaintiff or
against all the
plaintiffs because of this. The defendant called two witnesses. They
were Sgt Andries Kleynhans who at the time
of the incident was a
member of the Crime Prevention Unit in Sylverton, Gauteng, and Mr Jan
Kleynhans, who is Sgt Andries Kleynhans
brother, and was employed by
ADT Security at the time of the incident.
Evidence
about the events giving rise to the Court action
[3]
In the early hours of 21 May 2004 Inspector Spies and Sgt Kleynhans
of the Crime Prevention Unit of the South African Police
Service in
Silverton, Gauteng received a report over the radio from a member of
the ADT Security that there had been an incident
of housebreaking at
a music shop called Music Mate in Boardwalk Lakeside in Hans Strydom
Drive, Faerie Glen.Sgt Kleynhans' brother,
Jan
Kleynhans,
was employed by ADT Security and he was the one who conveyed the
report to Sgt Kleynhans. ADT Security requested back-up
from the
Crime Prevention Unit. The information that was relayed to Sgt
Kleynhans was that the people responsible for the housebreaking
in
the music shop were four black men who were travelling in a yellow
Toyota Corolla. It would appear that at the time that ADT
Security
asked the Crime Prevention Unit for a back-up , they i.e ADT Security
were chasing the Toyota Corolla in question along
Hans Strydom Drive.
[4]
Subsequent to receiving the request from ADT Security, Inspector
Spies and Sgt Kleynhans proceeded to Hans Strydom Drive via
the N4
Highway. While they were on the N4 Highway, Spies and Kleynhans saw a
Toyota Corolla with four occupants which, according
to them, matched
the description that ADT Security had given them. According to them,
the Toyota Corolla was travelling at a high
speed on the N4 Highway
towards Pretoria. Spies and Kleynhans then chased the Toyota Corolla
on the N4 Highway towards Pretoria
and into the N1 Highway (South)
towards Johannesburg.
[5]
According to the defendant's witnesses the vehicle that Spies and
Kleynhans used to chase the Toyota Corolla was fitted with
a loud
hailer and blue lights. Sgt Kleynhans testified that the blue lights
on their car were flashing as they were chasing the
Toyota Corolla.
He said that the Toyota Corolla was travelling at a very high speed.
He said that at times they (i.e he and Spies)
were driving at about
160km/h as they were chasing the Toyota Corolla. He testified that
they used a loud hailer to ask the driver
of the Toyota Corolla to
stop but the driver would not stop. The plaintiffs' witnesses, namely
the first, second and fourth plaintiffs,
all denied that their car
was at any stage being chased by the police or by anybody. They also
all denied any involvement in housebreaking
at the music shop
concerned. Their evidence was that the first, third and fourth
plaintiffs had gone to Witbank to fetch the second
plaintiff who was
coming from Mozambique and they were using the fourth plaintiff's car
and their destination was Rustenburg but
they were to use a route
that went via Krugersdorp because they did not know any other route.
According to them, coming from Witbank,
they joined the N1 (South)
towards Johannesburg at some stage. They testified that they never
noticed any motor vehicle, let alone
a police vehicle, chasing them.
They admitted that their vehicle was travelling at a high speed most
of the time including when
they were on the N1 Highway (South). The
second plaintiff testified that he was the only one in the car who
was not drunk. He said
that all the other plaintiffs were drunk.
[6]
According to the evidence of the first, second and fourth plaintiffs,
while on the N1 Highway (South) towards Johannesburg,
they passed
police vehicles which were parked on the side of the road and, soon
after they had passed the police cars on the side
of the road, shots
were fired at them and two of them, namely, the first and second
plaintiffs were shot and wounded. According
to the second plaintiff
he asked the driver of their vehicle to stop the car after he had
been shot and also because he thought
that the police, which, on the
version of the plaintiffs, were on the side of the road, had
signalled that the car should stop.
Sgt Kleynhans testified that he
must have fired about five to seven shots at the Toyota Corolla that
he and Spies were chasing.
In the process he also shot at the tyres
of the Toyota Corolla and that is how the Toyota Corolla stopped.
[7]
The first plaintiff testified that he was shot in the right hand
shoulder blade. He said that the bullet went through his shoulder
blade exited in the right hand side of his chest - just almost below
the shoulder. The second plaintiff was hit by two shots. The
one
bullet hit him on his right upper leg. Another one hit him in the
middle of the right side of his back. As a result of the
shots or as
a result of one of the shots the second plaintiff can no longer walk
and uses a wheelchair. Before the incident, he
could walk on his own.
[8]
After the vehicle in which the plaintiffs were travelling had
stopped, Sgt Kleynhans and Spies came to the car. After they realised
that two of the occupants of the vehicle had been injured, they
called paramedics. The police found music equipment in the boot
of
the Toyota Corolla. Although the first and second plaintiffs
testified that they had not seen any music equipment in the Toyota
Corolla, the fourth plaintiff admitted that there was music equipment
in the vehicle and that the police found it. The first and
second
plaintiffs were taken to hospital as they were injured. While they
were in hospital, they were guarded by the police. In
the meantime
the third and fourth plaintiffs were kept in police custody and
appeared in court. After the first and second plaintiffs
had been
discharged from hospital, they were also charged and joined the third
and fourth plaintiffs in the criminal matter then
pending in court.
The plaintiffs were not granted bail and remained in custody for
about a year. They were charged with housebreaking
with the intent to
steal and theft but were discharged at the end of the State case in
terms of sec 174 of the Criminal Procedure
Act, 1977 (Act 51 of 1977)
("the CPA") on the 5th May 2005. The charge of
housebreaking with intent to steal referred
to housebreaking at the
music shop and the charge of theft referred to theft of music
equipment in that shop.
Consideration
of the matter
[9]
Subsequently the plaintiffs instituted the present action against the
defendant. The parties agreed to separate the merits from
relief.
This judgment relates to the issue of liability only. Although
Counsel for the plaintiffs did not expressly abandon the
plaintiffs'
claim for unlawful arrest and detention he, very wisely, refrained
from making any submissions in support of those
claims. He only made
submissions on the claim for damages arising out of the shooting
incident. Only the first and second plaintiffs
suffered injuries in
that shooting. Accordingly, only the two plaintiffs are affected by
the claim in respect of which Counsel
for the plaintiffs made
submissions.
[10]
The plaintiff's claim for unlawful arrest and detention depended for
their success on the police not having had reasonable
grounds to
believe that the plaintiffs were the four occupants of a Toyota
Corolla who had broken into the music shop referred
to earlier or
that the police did not have reasonable grounds for believing that
they had committed a crime. The people who had
broken into the music
shop were alleged to have stolen some music equipment and had fled in
a yellow Toyota Corolla. The evidence
of different witnesses with
regard to the colour of the motor vehicle in which the plaintiffs
travelled differed. Some testified
that the motor vehicle was white
whereas others testified that it was yellow. The evidence of those
plaintiffs who testified was
also not to the same effect in this
regard. The second plaintiff testified that it was a yellow Toyota
Corolla whereas the fourth
plaintiff insisted that it was a white
Toyota Corolla. The first plaintiff testified that it was a white
Toyota Corolla. Counsel
showed the first plaintiff a piece of white
paper and the first plaintiff said that the Toyota Corolla in which
the plaintiffs
travelled was as white as that piece of paper.
However, Sgt Kleynhans, testified that the vehicle was yellow in
colour. Mr Jan
Kleynhans' evidence corroborated that of Sgt Kleynhans
in this regard.
[11]
When the fourth plaintiff testified that the Toyota Corolla was white
and that he knew it well because it was his car, it was
put to him
that the second plaintiff had testified that it was yellow. His
answer to this was that the second plaintiff did not
know his car
well. On the probabilities, the Toyota Corolla was yellow. I cannot
rely on the evidence of the fourth plaintiff because
in his evidence
relating to an issue that I will deal with shortly he clearly lied to
this court. I find that the evidence given
by the defendant's
witnesses was reliable, logical and sound. Accordingly, the case must
be decided on the basis that the Toyota
Corolla in which the four
plaintiffs were travelling was yellow. However, even if it was not
yellow, this would not change anything
material. I say this because
what Mr Jan Kleynhans from ADT Security informed Sgt Kleynhans that
the car in which the people who
had broken into the music shop were
travelling was a Toyota Corolla which had four black males in it and,
indeed, the car in which
the four plaintiffs were travelling was a
Toyota Corolla, and it had four occupants who were male and black.
[12]
The police had been informed that some music equipment had been
stolen from the music shop by four people travelling in a yellow
Toyota Corolla. Sgt Kleynhands testified that during their chasing of
the plaintiffs' car, they switched on their sirens, used
a loud
hailer that was fitted into their car to ask the plaintiffs to stop
but the plaintiffs did not stop. In this regard Sgt
Kleynhans said
that in chasing the plaintiffs' car, their car i.e. the police car
was sometimes as close as five and even three
meters behind the
plaintiffs' car. The plaintiffs who testified all said that they did
not see any car that was chasing their car
nor did they hear any
siren or loud hailer. I accept the version of the defendant's
witnesses that the police chased the plaintiffs'
car and that, in
chasing it, their car was sometimes as close as five and even three
meters behind the plaintiffs' car. I reject
as highly improbable the
plaintiffs' evidence that they did not hear the loud hailer and the
police siren when these were used
by the police to try and stop them.
The probabilities are that the plaintiffs heard the loud hailer and
the siren and were aware
that they were being followed by the police
but they continued to flee. In this regard I must also point out that
the evidence
of the police about them chasing the plaintiffs' car and
using the siren is corroborated by Mr Jan Kleynhans who confirmed
having
initially chased the plaintiffs' car alone but to also having
done so with the police once the police had also seen the plaintiffs'
car. Mr Jan Kleynhans testified that he heard the loud hailer and the
siren being used by the police to try and stop the Toyota
Corolla. Mr
Jan Kleynhans testified that the plaintiffs' car never went out of
his sight throughout the chasing.
[13]
Sgt Kleynhans said in his evidence that he must have fired between
five and seven shots at the plaintiffs' car. He said that
he aimed at
the tyres of the car. When one has regard to the fact that one bullet
hit one of the plaintiffs in his shoulder blade
it is difficult to
accept that, in firing all the shots that he fired, Sgt Kleynhans'
target was the tyres of the plaintiffs' car.
It cannot be. To that
extent that part of his evidence must be rejected.
[14]
It is common cause between the fourth plaintiff and the defendant
that there were items of music equipment that were found
in the boot
of the plaintiffs' car. In his evidence the fourth plaintiff
testified that the music equipment belonged to a man called
Bob. He
did not provide Bob's surname. He testified that Bob hired music
equipment out to people who had functions. He said that
Bob had
called him during the evening of 20 May 2004 and asked him to collect
his music equipment from someone and he had done
that during the
evening of the 20th May before he had gone to Witbank after 21h00
where, he said, he went to fetch the second plaintiff.
The first and
second plaintiff testified that they did not see any music equipment
in the car that night / morning. This is strange
because the fourth
plaintiff testified that he collected the music equipment on their
way from Tembisa Township to Witbank. One
would have thought that at
least one of the other plaintiffs would have witnessed the loading of
the music equipment into the boot
of the car.
[15]
When the fourth plaintiff gave his evidence, he confirmed that there
was a criminal case that he and the other plaintiffs faced
in the
Regional Court in Pretoria where they were charged with housebreaking
with the intent to steal and theft. The housebreaking
related to the
music shop referred to earlier and the charge of theft related to the
music equipment. In the criminal case the
plaintiffs were represented
by an attorney. As already indicated, they were discharged at the end
of the State case in terms of
section 174 of the CPA. That means that
they were discharged without having taken the witness stand or called
any witness to refute
the allegations against them.
[16]
The basis upon which the Regional Court discharged the plaintiffs was
this: There had been a number of break-ins in the music
shop
concerned. The owner of the shop who gave evidence to identify the
music equipment as belonging to the music shop had not
done a proper
inventory of items stolen during the various break-ins. There was too
much confusion about which items were taken
during which break-in and
the identification was based simply on a general appearance of the
items and not, for example, on serial
numbers. This did not make it
possible for the Regional Court to conclude that the music equipment
had been stolen from the music
shop concerned.
[17]
The basis of the plaintiffs' defence against the charge of the
alleged theft of the music equipment found in the car in which
they
were travelling was not that the music equipment was Bob's property
and the fourth plaintiff had been requested by Bob to
collect it from
somebody on the evening of the 20th May 2004 and he was to take it to
Bob in due course. Obviously if, as far as
the fourth plaintiff was
concerned, the music equipment belonged to Bob who had asked him to
collect it from someone and bring
it to him, that is the first thing
one would have expected the fourth plaintiff to say to the police
when they accused him and
the other plaintiffs of having stolen the
music equipment from the music shop in question. One would have
expected the fourth plaintiff
to have said to the police: "I
have not stolen this property. It belongs to Bob, my friend. He asked
me to collect it from
someone who had hired it and I was going to
take it to Bob in due course. I can take you to Bob's residence!"
The fourth plaintiff
did not say this to the Police. In case the
fourth plaintiff had some or other understandable reason for not
saying this to the
police, for example, if he chose to exercise his
right to remain silent, surely he should have told his attorney this
version when
he instructed him to defend him or the plaintiffs
against the charge. He did not.
[18]
Under cross examination the fourth plaintiff was asked why he had not
told his attorney in the criminal trial that the music
equipment for
which he was charged with theft belonged to his friend, Bob. His
answer was that his attorney told him to accept
that the music
equipment was stolen property. He could not explain how and why his
attorney would have said that he must accept
that the music equipment
was stolen property without first giving him an opportunity of giving
him his version. At this stage Counsel
for the defendant put it to
the fourth plaintiff that the true reason why he, the fourth
plaintiff, had not told his attorney in
the criminal trial that the
music equipment belonged to Bob was not that the attorney had told
him to accept that the music equipment
was stolen property but that
this story was a recent fabrication. The fourth plaintiff denied
this.
[19]
The fourth plaintiff admitted that, after he had been acquitted and
released from police custody, he did not go to the police
to ask for
the return to him of the music equipment. This was despite the fact
that he had been acquitted in the criminal court
where one of the
charges he had faced was that of theft of the music equipment. He and
the other plaintiffs had stayed in Police
custody for close to a
year. He could not explain why, if the music equipment belonged to
Bob, he did not, after his acquittal,
approach the police to recover
the music equipment. In fact, if, indeed, the music equipment
belonged to Bob, one would have expected
that, as soon as possible
after his arrest, the fourth plaintiff would have sent a message to
Bob that his music equipment had
been taken by the police when he,
i.e. the fourth plaintiff was arrested and he should visit him in
Police custody to discuss the
matter. The fourth plaintiff did not do
this. Even if the fourth plaintiff had not sent a message to Bob, Bob
would have either
telephoned the fourth plaintiff or gone to the
latter's residence to find out where his equipment was and he would
then have been
told that the fourth plaintiff was in police custody
and he would have visited the fourth plaintiff in police custody to
get an
explanation of what had happened. Thereafter Bob would have
approached the police to demand the return of his equipment. This
also
did not happen. It is undisputed that the music equipment in
question was very expensive. Lastly, when the fourth plaintiff was
asked whether, after his release from police custody, he went to see
Bob. He said that he did after two or three weeks or so. He
certainly
did not go there immediately after his release. He said that, when he
came to Bob's residence, Bob was not there and
he was told that Bob
no longer lived there. He said that the person or people he found in
the residence did not know where Bob
lived then.
[20]
The first and second plaintiffs testified that they did not see any
music equipment in the car. If the plaintiffs are the people
who
broke into the music shop called Music Mate and fled in a Toyota
Corolla that was described as a yellow Toyota Corolla, then
the first
and second plaintiffs gave untruthful evidence when they testified
that they did not see any music equipment in the car
because, in that
event, they were all party to stealing that music equipment from the
music shop. Their evidence that they came
from Witbank where they had
fetched the second plaintiff who was coming from Mozambique was
unsatisfactory in a number of respects.
One such respect was that,
although according to the second plaintiff, he had left South Africa
for Mozambique in December 2003
and was, therefore, returning to
South Africa after about five months, he was not carrying any
suitcase or bag containing some
of his clothing. His explanation that
the reason for this was that he had another set of clothes in South
Africa was not satisfactory
because he was carrying absolutely
nothing.
[21]
The evidence of the defendant's witnesses that the report was that
the people who had broken into the music shop were four
black men in
a yellow Toyota Corolla was unchallenged. Mr Jan Kleynhans' evidence
that he spotted a Toyota Corolla which matched
the description given
to him as the Toyota Corolla in which the four suspects were
travelling and that he chased that Toyota Corolla
until he came to
where the plaintiffs' Toyota Corolla had stopped and that it had
never gone out of his sight as he chased it must
be accepted. The
evidence of Sgt Andries Kleynhans that he and W/O Spies spotted the
Toyota Corolla in Hans Strydom Drive and it
went to N4 and later N1
south in the direction of Johannesburg must also be accepted. After
the police had chased the Toyota Corolla
for some distance without
the occupants of the Toyota Corolla stopping even though the police
used a loud hailer and a siren to
try and stop them, the police fired
shots at the Toyota Corolla and it stopped. Music equipment was found
in the boot of the Toyota
Corolla. The Toyota Corolla fitted the
description of the Toyota Corolla that had been used by people who
had broken into the music
shop and the occupants of the Toyota
Corolla were not able to satisfactorily account for the music
equipment found in the car in
which they were travelling. They were
arrested, detained and charged with house breaking with the intention
to steal into the music
shop in question with the intent to steal
music equipment. Although they were acquitted, they did not go to the
police after their
acquittal to ask for the return of the music
equipment.
[22]
What is strange is that the first plaintiff's evidence about the
music equipment differed from that of the fourth plaintiff.
One would
have expected that the first plaintiff would have given evidence that
would have given some credence to the fourth plaintiff's
evidence
that the music equipment was collected from someone at Bob's request
on the 20th May 2004 before the first, third and
fourth plaintiffs
went, on their version, to Witbank to fetch the second plaintiff. The
first plaintiff gave no such evidence.
He gave his evidence as if he
did not even know that the police had found music equipment in the
boot of the Toyota Corolla. The
second plaintiff also gave evidence
as if he too did not know this. Assuming that, as the two of them
were already seriously injured
when the police came to the car after
it had stopped and they were taken to hospital, they did not see the
music equipment being
taken out of the boot, the position cannot be
that, even after their acquittal, the fourth plaintiff would not have
told them that
the police had found music equipment in the boot of
his car. That is if their evidence that they did not see any music
equipment
in the car was true. It cannot be that, if they really had
not seen the music equipment in the car, the fourth plaintiff would
not since May 2004 to the date of the trial, have told them that
music equipment had been found in the boot of the car by the police
and told them how such equipment had come to be in the car. At least
once the plaintiffs were charged with the theft of that music
equipment they would have asked the fourth plaintiff about it and he
would have told them his version concerning it. That is, indeed,
if
they had known nothing about it prior to their arrest. Why then did
they testify as if they were never aware that music equipment
was
found in the car? They must have decided that their story was simply
going to be that they never saw any music equipment in
the car no
matter what the consequences of that version were.
[23]
When all of the above is taken into account, I do not have the
slightest hesitation in concluding that the fourth plaintiff
was a
dishonest and unreliable witness and that his story that the music
equipment belonged to Bob and he had collected it from
someone on
Bob's request on the night of the 20th May 2004 was a fabrication.
If, indeed, the fourth plaintiff's story was true,
he would have told
the other plaintiffs that the music equipment in respect of which
they were charged with theft was Bob's property
and it had been in
the car at the time of their arrest in May 2004. The fourth plaintiff
has had many years to tell the other plaintiffs
this if, indeed,
there was any truth in the story. If the fourth plaintiff had told
them this version, they probably would have
testified that that is
what the fourth plaintiff told them about the music equipment. They
did not say this.
[24]
When all of these factors are taken into account, the probabilities
are overwhelming that the plaintiffs were the four black
men who
broke into the music shop and fled in a yellow Toyota Corolla. This,
therefore means that all four the plaintiffs knew
of the presence of
the music equipment in the car, because all of them had been party to
breaking into the music shop from which
they had stolen the music
equipment. Therefore, the evidence of the first and second plaintiffs
that they did not see any music
equipment in the car was given
dishonestly and was untrue. In the light of all the above I find that
the music equipment that was
found in the Toyota Corolla was stolen
property and, on a balance of probabilities, was stolen from the
music shop in question.
This finding is at variance with the finding
of the Regional Court in the criminal trial. This can be explained on
the basis that
the Regional Court made its decision without the
benefit of the fourth plaintiffs' evidence about the equipment
belonging to Bob.
In the light of this, this matter must then be
decided on the basis that the plaintiffs' broke into the music shop
referred to
earlier, stole the music equipment and fled in a yellow
Toyota Corolla, were chased by the police and ADT Security, refused
to
stop when the police tried to stop them by using a loud hailer and
a siren and their car ultimately stopped after Sgt Andries Kleynhans
had fired shots at the car some of which hit the tyres of the car.
[25]
In my view, the police had reasonable grounds to believe that the
plaintiffs had committed an offence or two and were entitled
to
arrest them. Their arrest was, therefore, lawful and valid. The
police were entitled to keep them in custody for 48 hours. Beyond
that their continued detention was dependent upon them being granted
bail by the court. They were not granted bail by the court
and that
decision was never set aside on appeal or review. Their detention was
therefore also lawful.
Accordingly,
the plaintiffs' claims of damages arising out of their arrest and
detention fall to be dismissed.
The
claim relating to the shooting [26] I now turn to consider the first
and second plaintiffs' claim that the police acted unlawfully
in
firing shots and wounding them as they did. The defendant accepts
that the police acted within the course and scope of their
employment
when they fired the shots which wounded the first and second
plaintiffs. Accordingly, he will accept liability for their
actions
if it is established that they acted unlawfully in firing the shots
which injured the first and second plaintiffs. The
only question that
I must decide is whether or not Sgt Andries Kleynhans was entitled to
shoot and wound the first and second plaintiffs
in the circumstances
which prevailed. That is the question to which I turn.
Was
Sgt Andries Kleynhans entitled to shoot and injure the first and
second plaintiffs?
[27]
The first and the second plaintiffs testified that, just before shots
were fired at them, they saw certain police vehicles
which were
parked on the side of the road. They said that they believed that the
shots came from the police officers who were either
in those police
cars or who were standing outside those police vehicles. Both Sgt
Andries Kleynhans and Jan Kleynhans testified
said that there were no
police vehicles on the side of the road. Sgt Andries Kleynhans'
evidence that he was the one who fired
shots at the Toyota Corolla is
probably the correct version. He would have no reason to say he fired
shots at the Toyota Corolla
and seriously wounded two of the
occupants if in fact he was not the one who had fired shots at the
Toyota Corolla. Furthermore,
since the Toyota Corolla stopped not far
from where, according to the two plaintiffs, the police cars were
parked on the side of
the road, it is highly unlikely that such
police Officers would not have come to where the Toyota Corolla
stopped to see whether
they could not be of assistance to their
colleagues who had been chasing that car.
[28]
During his evidence Sgt Andries Kleynhans either did not testify as
to what the purpose was of his firing the shots that he
fired
including the ones which injured the two plaintiffs or, if he did
testify as to such purpose, he must have said that the
purpose
thereof was to stop the Toyota Corolla so that he and W/O Spies could
apprehend the plaintiffs whom they were suspecting
of having
committed the offences of housebreaking and theft. In the defendant's
plea the defendant alleged that the police officers
who fired the
shots were peace officers as defined in section 1 of the CPA who
reasonably suspected the plaintiffs of having committed
an offence
referred to in Schedule 1 of the aforesaid Act, namely, robbery,
alternatively housebreaking with intent to steal and
theft. The
defendant alleged that the plaintiffs had fled when it was clear that
an attempt was being made to arrest them and in
order to effect an
arrest and / or to prevent the plaintiffs from fleeing, the police
had fired shots at the vehicle. The defendant
also averred that the
force that was used was reasonable and necessary in order to effect
the arrest of the plaintiffs / or to
prevent them from fleeing. It
was also alleged that the relevant members of the South African
police Service had acted in the bona
fide belief that they were
justified in firing the shots at the vehicle to effect the arrest of
the plaintiffs and / or to prevent
the plaintiffs from fleeing.
Counsel for the defendant relied upon the provisions of sec 49(1) and
(2)(b) of the CPA to justify
the conduct of the police in this
regard.
[29]
Section 49 (1) and (2) of the CPA reads as follows: "(49) Use of
force in affecting arrest. -
(1)
For the purposes of this section-
(a)
'arrestor' means any person authorised under this Act to arrest or to
assist in arresting a suspect, and
(b)
'suspect' means any person in respect of whom an arrestor has or had
a reasonable suspicion that such person is committing or
has
committed an offence.
(2)
If any arrestor attempts to arrest a suspect and the suspects resists
the attempt, or flees or resists the attempt and flees,
when it is
clear that an attempt to arrest him or her is being made, and the
suspect cannot be arrested without the use of force,
the arrestor
may, in order to effect the arrest, use such force as may be
reasonably necessary and proportional
in the circumstances to
overcome the resistance or to prevent the suspect from fleeing:
Provided that the arrestor is justified
in terms of this section in
using deadly force that is intended or is likely to cause death or
grievous bodily harm to a suspect,
only if he or she believes on
reasonable grounds -
(a)
that the force is immediately necessary for the purpose of protecting
the arrestor, any person lawfully assisting the arrestor
or any other
person from imminent or future death or grievous bodily harm;
(b)
that there is a substantial risk that the suspect will cause imminent
or future death or grievous bodily harm if the arrest
is delayed;
(c)
that the offence for which the arrest is sought is in progress and is
of a forcible and serious nature and involves the use
of life
threatening violence or a strong likelihood that it will cause
grievous bodily harm."
This
is the provision of section 49 of the CPA as substituted by section 7
of the Judicial Matters Amendment Act, 1998 (Act 122
of 1998). The
parties were agreed that this provision came into operation on the
18th July 2003 and that, therefore, it is the
provision which
governed the right of the police to use force to effect an arrest as
at the 21st May 2004 which was the day when
the police shot and
wounded the first and second plaintiffs.
[30]
A careful reading of sec 49 reveals that it deals with two situations
where the use of force to effect an arrest is permitted
and,
therefore, justified and lawful. The first situation is where
non-deadly force may be used. The second situation is where
deadly
force may be used. The reference to "deadly force" is a
reference to force that is intended to, or, is likely
to, cause death
or grievous bodily harm to a suspect. Non-deadly force is force which
is not intended to cause or is not likely
to cause death or grievous
bodily harm to a suspect. The term "deadly force" appears
in the proviso in sec
49. Sec 49
allows the use of non-deadly force
only if the following requirements are met:
(a)
there must be an arrestor as defined in sec 49(1); that is a person
who is authorised under the CPA to arrest or assist in the
arresting
of a suspect;
(b)
there must be a suspect as defined in sec 49(1) of the CPA; that is a
person in respect of whom an arrestor has or had a reasonable
suspicion that such person is committing or has committed an offence.
(c)
the force must be used or must have been used by the arrestor and not
someone else;
(d)
the force must have been used on a suspect as defined in sec 49(1) of
the CPA;
(e)
the arrestor must have or must have had a suspicion that the suspect
is committing or has committed an offence;
(f)the
suspicion held by the arrestor that the suspect is committing or has
committed an offence must be or must have been reasonable;
(g)
the arrestor must be attempting to or must have been attempting to
arrest the suspect and the suspect must be resisting the
attempt or
must have been fleeing or must have been resisting the attempt and
fleeing;
(h)
it must have been clear that an attempt to arrest the suspect
was
being made;
(i)
the position must be or must have been that the suspect could not be
arrested without the use of force;
(j)
the purpose of the use of force must be or must have been to effect
the arrest.
(k)
the force used must be reasonably necessary and proportional in the
circumstances to overcome the resistance or to prevent the
suspect
from fleeing.
The
requirements prescribed by sec 49 for the lawful use of deadly force
on a suspect are the following:
a)
the arrestor must hold a belief or must have held one or more of the
beliefs referred to in par (a) or (b) or (c) of sec 49(2),
and,
b)
the belief referred to in (a) or (b) or (c) of sec 49(2) held by the
arrestor must have been held on reasonable grounds.
[31]
Under par (a) of sec 49(2) the belief that the arrestor must hold or
must have held is the belief that force is immediately
necessary for
the purposes of protecting himself or herself, any person lawfully
assisting the arrestor or any other person from
imminent or future
death or grievous bodily harm. Under par (b) the belief that the
arrestor must hold or must have held at the
time of the use of force
is the belief that there is a substantial risk that the suspect will
cause imminent or future death or
grievous bodily harm if the arrest
is delayed. Under par (c) the belief that the arrestor must hold or
must have held at the time
is the belief that the offence for which
the arrest is sought is or was in progress and is or was of a
forcible and serious nature
and involves or involved the use of life
threatening violence or a strong likelihood that it will cause
grievous bodily harm. The
belief held by the arrestor has to relate
to par (a) or (b) or (c). Furthermore, such belief must be held on
reasonable grounds.
The reasonableness or otherwise of the grounds
has to be in relation to par(a) or (b) or (c) of sec 49(2) of the
CPA.
[32]
It is clear from what I have set out above that in order to use even
non-deadly force on a suspect lawfully, there are many
requirements
that must be met. Understandably, there are also stringent
requirements that must be met in order to use deadly force
on a
suspect lawfully. With regard to the use of deadly force on a
suspect, it is clear from the proviso in sec 49(2) and from
paras
(a), (b) and (c) therein that the use of deadly force is only lawful
or justified or permitted in cases where the arrestor
(i.e. who must
be the person who uses or used the force) believes on reasonable
grounds:
(a)
that either he (i.e. the arrestor) or anybody lawfully assisting him
with the arrest or any other person need protection from
imminent or
future death or grievous bodily harm and the use of force is
immediately necessary for that purpose;
(b)
that there is a substantial risk that the suspect will cause imminent
or future death or grievous bodily harm if the arrest
is delayed;
(c)
that there is a substantial risk that the suspect will cause imminent
or future death or grievous bodily harm if the arrest
is delayed;
(d)
that the offence for which the arrest is sought is in progress and is
of a forcible and serious nature and involves the use
of life
threatening violence or a strong likelihood that it will cause
grievous bodily harm.
I
was referred to the decision of the Constitutional Court in The
Minister of Safety and Security and Others in Re S v Waiters and
Another
[2002] ZACC 6
;
2002 (4) SA 613
(CC) and to the decision of the Supreme Court
of Appeal in Govender v Minister of Safety and Security
2001 (4) SA
273
(SCA) but, on the facts of the present case, I see no warrant for
discussing any of them in this judgment.
[33]
I have said above that during argument Counsel for the defendant
submitted that Sgt Kleynhans believed on reasonable grounds
that the
plaintiffs had committed a schedule 1 offence and the plaintiffs must
have realised that an attempt was being made to
arrest them but
continued to flee and the force that was used by Kleynhans was
reasonably necessary to effect the arrest and was
proportional in the
circumstances to prevent the plaintiffs from fleeing. He further
submitted that Sgt Kleynhans was justified
in using the force that he
used because he believed on reasonable grounds that there was a
substantial risk that the plaintiffs
would cause imminent or future
death or grievous bodily harm if the arrest was delayed. This last
part of the submission was used
to try and bring the police's
purported justification of the use of force in this case within the
ambit of par (b) of sec 49 (2)
of the CPA.
[34]
The difficulty with that part of Counsel for the defendant's
submission that purports to bring the defendant's case within
the
ambit of par (b) of Sec 49 (2) is that, when Sgt Kleynhans gave his
evidence, he never testified that at the time that he fired
the
shots, he believed that there was a substantial risk that the
plaintiffs would cause imminent or future death or grievous bodily
harm if the arrest was delayed. The relevant part of the provision
sec 49 (2) (b) reads:
"Provided
that the arrestor is justified in terms of this section in using
deadly force that is intended or is likely to cause
death or grievous
bodily harm to a suspect, only if he or she believes on reasonable
grounds.
(a).......
(b)
that there is a substantial risk that the suspect will cause
imminent
or future death or grievous bodily harm if the arrest is
delayed".
To
successfully rely on sec 49 (2) (b) to defend a claim that the
arrestor acted unlawfully or was unjustified in using force to
effect
an arrest on a suspect, it must be established as a fact that the
arrestor held the belief contemplated in the proviso in
sec 49 (2)
(b). In other words it is a jurisdictional requirement that must be
proved. If it is not proved, the use of force will
fall outside the
ambit of the proviso in sec 49(2) and the use of force will then have
been unlawful.
[35]
The establishment of the fact that the arrestor held the belief
referred to in the proviso in sec 49 (2) is separate from another
requirement stipulated by the provision, namely, that the arrestor's
belief must be on reasonable grounds. This means that, if
it is shown
that the arrestor held the belief contemplated in the proviso in sec
49 (2), but it is not shown that there were reasonable
grounds for
that belief, the use of force will also have been outside the ambit
of sec 49 and, therefore, unlawful. However, if
there is no evidence
that the arrestor subjectively held the belief contemplated in the
proviso, then you do not even proceed to
enquire whether there were
reasonable grounds. That falls away. Only the arrestor can testify
whether or not he held the belief
required by the proviso in sec 49
(2). However, when it comes to the requirement whether or not there
were reasonable grounds for
the belief, that can be tested
objectively having regard to the evidence in its entirety. Obviously,
the arrestor will testify
and give reasons why he held the belief
required in sec 49 (2). Those will be his grounds for his belief.
Whether or not those
grounds were reasonable will then be for the the
court to determine. The court will make a value judgment in the light
of all the
relevant circumstances. In this case the defendant has
failed to lead evidence that Sgt Andries Kleynhans held the belief
which
the proviso in sec 49 (2) requires the arrestor to have held
before deadly force could be used on a suspect. Accordingly, Sgt
Kleynhans'
conduct in firing shots at the car in which the plaintiffs
were travelling and in wounding the first and second plaintiffs fell
outside the ambit of sec 49(2) and was unjustified and unlawful.
[36]
Although the issue of whether or not there were reasonable grounds
for the belief contemplated in the proviso in sec 49(2)(b)
falls away
in this case, in the light of the conclusion that there is no
evidence that the arrestor held the belief that is required
by the
proviso in sec 49(2), in this case there could have been no such
reasonable grounds. This has to be so because there was
no evidence
that the plaintiffs were armed. No arms or weapons were found in
their possession or in the car. There was also no
evidence that they
posed any imminent threat to anybody including the Police who were
chasing them. Accordingly, on this ground,
too, the use of force on
the two plaintiffs by Sgt Kleynhans fell outside the ambit of sec
49(2) and was unjustified and unlawful.
[37]
With regard to costs, the third and fourth plaintiffs' claims against
the defendant have failed. Accordingly, as against those
two
plaintiffs, the defendant has been wholly successful. Accordingly,
they must pay the defendants' costs with regard to their
claims. With
regard to the first and second plaintiffs, the position is not so
simple. The first and second plaintiffs' claims
relating to arrest
and detention have also failed. Accordingly, the defendant has
successfully defended those claims. The first
and second plaintiffs
have been successful against the defendant in one claim only, namely,
the one relating to the shooting. Ordinarily
one would say that the
first and second plaintiffs should be entitled to the costs of that
action but that action was tried in
the same proceedings in which the
actions for unlawful arrest and unlawful detention failed. The trial
took three days. It was
never in dispute that the Police had fired
shots which wounded the first and second plaintiffs. So the only
issue was whether or
not the Police were entitled to fire the shots
that wounded the first and second plaintiffs. If the only claim that
the first and
second plaintiffs had brought was the one relating to
the shooting, their claim would have succeeded without any of the
evidence
that was led during the trial if there was no evidence that
Sgt Kleynhans had held the belief required by the proviso in sec 49
(2) (b). Accordingly, it seems to me that more than 80% of the
evidence that was led related to the plaintiffs trying to prove
those
of their claims (including the first and second plaintiffs') in
respect of which the defendant has been successful. If the
first and
second plaintiffs had only sued the defendant for damages arising out
of the shooting, the evidence that would have been
necessary for that
claim at the trial would not have lasted for longer than the morning
of the first day of the trial. Even then
if the position was that
there was no evidence that Sgt Kleynhans had held the belief required
by the proviso in sec 49(2), no
evidence would have been necessary
for that claim to succeed. However, to be on the safe side one can
say that whatever evidence
may have been required for the two
plaintiffs to succeed would not have gone beyond the morning of the
first day of the trial.
In these circumstances it seems to me that as
between the first and second plaintiffs, on the one hand, and the
defendant, on the
other, each party should pay its own costs.
In
the premises I make the following order:
1.The
plaintiffs' action relating to their arrest and detention is
dismissed.
The
first and second plaintiffs' action relating to the shooting
succeeds and it is hereby declared that the use of force by Sgt
Kleynhans on the first and second plaintiffs on the morning of the
21st May 2004 was unjustified and unlawful.
3.
It is hereby declared that the defendant is liable for the conduct
of Sgt Kleynhans in shooting and injuring the first and second
plaintiffs on 21 May 2004.
4.
The third and fourth plaintiffs' are to pay the defendant's costs
relating to the defendant's defence of the plaintiffs' claims
for
unlawful arrest and detention.
5.
With regard to the costs relating to the first and second plaintiff's
claim arising out of the shooting incident, the first and
second
plaintiffs are to pay their own costs and the defendant is also to
pay its own costs.
6.
To assist the Taxing Master / Mistress, it is pointed out that 80% of
the evidence led at the trial would not have been necessary
for the
success of the first and second plaintiffs' action referred to in (2)
above.
ZONDO,J
Appearances:
1.
For the First, Second, Third and Fourth Plaintiffs: Mr A J
Swanepoel
Instructed by: Makhubele Attorneys,
C/O
Mkhavele Incorporated, Pretoria
2.
For the Defendant: Mr T W G Bester Instructed by: The State Attorney,
Pretoria
3.
Date of hearing: 4th November 2009
4.
Date of order: 29 April 2011
5.
Date when full judgment provided: 5 May 2011