Petersen and Another v Minister of Safety & Security (514/2008) [2009] ZASCA 88; [2010] 1 All SA 19 (SCA) (10 September 2009)

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[2009] ZASCA 88
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Petersen and Another v Minister of Safety & Security (514/2008) [2009] ZASCA 88; [2010] 1 All SA 19 (SCA) (10 September 2009)

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THE
SUPREME COURT OF APPEAL
REPUBLIC
OF SOUTH AFRICA
JUDGMENT
Case number: 514/2008
In the matter between:
DOLORA PETERSEN in her capacity as
mother and natural guardian of
J L P APPELLANT
and
THE MINISTER OF SAFETY & SECURITY RESPONDENT
Neutral citation:
Petersen v
Minister of Safety & Security
(514/2008)
[2009] ZASCA 88
(10 September 2009)
CORAM: Brand, Heher, Snyders JJA
et
Hurt, Tshiqi AJJA
HEARD: 28 August 2009
DELIVERED: 10 September 2009
SUMMARY
: Delictual claim
against the respondent for injuries sustained by the appellant's
minor son through gunshot fired by police –
finding that police
action justified because shot had been fired in circumstances of
necessity upheld on appeal.
ORDER
On appeal from
: High Court
Cape Town (Goso AJ with Dlodlo J concurring, sitting as a court of
appeal from the Magistrates' Court)
1. The appeal is dismissed with costs.
JUDGMENT
BRAND JA
(Heher,
Snyders JJA
et
Hurt,
Tshiqi AJJA concurring)
[1] On 19 July 2002 and at Gansbaai near Hermanus in the
Western Cape, the appellant's minor son, J P ('J') sustained gunshot
wounds
in his right leg. The appellant alleged that the shots had
been fired by a policeman acting in the course and scope of his
employment
as a servant of the respondent. Although disputed at an
earlier stage in the proceedings, the correctness of the allegation
is
accepted by the respondent on appeal. Departing from this premise,
the appellant instituted action against the respondent in the

Hermanus Magistrates' Court for the damages that J had suffered as a
result of his injuries. The respondent raised the defence
of
justification in the form of self-defence, alternatively necessity.
Pursuant to an agreement between the parties, the trial
proceeded on
the question of liability only while issues pertaining to quantum
stood over for later determination. In the event
a plea of necessity
was upheld by the trial court, which led to the dismissal of the
appellant's claim with costs. Her appeal against
that judgment to the
Cape High Court (Dlodlo J and Goso AJ) was unsuccessful. The further
appeal to this court is with the leave
of the court a quo.
[2] The issues on appeal will best be understood in the
light of the background facts. In the trial court the matter was
heard together
with the case of one Agenbag who claimed damages from
the respondent on the basis of an alleged wrongful arrest which
occurred
during the same incident on 19 July 2002. In answer to the
respondent's case, the appellant therefore relied, not only on the
evidence
of J, but also on the evidence presented in the matter of
Agenbag. For the sake of convenience I shall refer to all witnesses,
apart from the policemen who testified on behalf of the respondent,
as 'the defence witnesses'.
[3] As to what happened during the fateful incident, the
police witnesses contradicted one another on various matters of
detail.
What they agreed upon in broad outline, however, may be
simply summarised. On 19 July 2002 the police attempted to seize at
least
20 bags of illegally harvested abalone or perlemoen in
Blompark, a township near Gansbaai, ill-famed for perlemoen poaching.
There
were seven or eight officers, members of Operation Neptune, a
task team formed specifically to stamp out the poaching of perlemoen

which had become a threatened species. When the police arrived on the
scene they found a Nissan 4 x 4 bakkie with a trailer. Openly
exposed
on the back of the bakkie and the trailer were at least 20
transparent bags containing shelled perlemoen. The police were

surprised at finding such a large quantity of this much sought after
commodity.
[4] Shortly after the arrival of the police, Agenbag
appeared on the scene together with his friend, one Crause. At the
same time
a crowd started gathering. It grew to some 200 people.
Crause then asked the crowd in Afrikaans whether they were again
going to
allow 'die boere' (ie the police) to take their perlemoen
away from them – or something to that effect. Immediately following

upon this incitement by Crause, the crowd began to stone the police,
inter alia, striking an officer on the chest and damaging
police
vehicles. In an attempt to ward off the attack, the police fired
rubber bullets from their shotguns. This had little effect
on the
crowd and the police were forced to retreat to the stoep of a house.
While this was happening, members of the crowd took
advantage of the
situation to remove some bags of perlemoen from the scene. When the
police ran out of rubber bullets, they started
shooting into the
ground near the crowd with sharp point ammunition from their 9mm
pistols. According to one of the policemen,
he also fired two shots
of sharp point ammunition at a member of the crowd who aimed a
firearm at the police.
[5] Despite all this, the crowd was not deterred. They
simply ran for cover when volleys were fired and then returned to
continue
stoning the police. This lasted for some time until Crause,
who had left the scene, returned and ordered the crowd to stop. The

stoning thereupon ceased briefly. This gave the police the
opportunity to get into their vehicles and to flee from the scene. As

they fled, the crowd continued to stone the police vehicles. The
police regrouped at the entrance to Blompark where they waited
for
support from the police station at Hermanus. When the reinforcements
arrived they went back into Blompark in a police armoured
vehicle –
known as a Casspir. Upon their return apparently only one bag of
perlemoen had not been taken by the crowd. They arrested
some
persons, including Agenbag, who were believed to have been involved
in the incident.
[6] On appeal much store was set by the appellant in the
numerous contradictions between the police witnesses on matters of
detail
such as, for example, whether there were 50 or 20 bags of
perlemoen; whether there were three or four police vehicles; whether
there were seven or eight policemen; and so on and so forth. The
conclusion the appellant asked this court to draw from all this
is
that, in the light of these contradictions, the version of the police
witnesses could not be accepted. But, as I see it, such
conclusion
would amount to a
non sequitur
.
As was pointed out by Nicholas J in
S v
Oosthuizen
1982 (3) SA 571
(T) at 576B-D:
'Where the [contradicting]
statements are made by different persons, the contradiction in itself
proves only that one of them is
erroneous: it does not prove which
one. It follows that the mere fact of the contradiction does not
support any conclusion as to
the credibility of either person. It
acquires probative value only if the contradicting witness is
believed in preference to the
first witness, that is, if the error of
the first witness is established.
"It is not the
contradiction, but the truth of contradicting assertion as opposed to
the first one, that constitutes the probative
end."
(
Wigmore
[On Evidence Vol III]
at 653.)'
And at 576G-H:
'Plainly it is not every error
made by a witness which affects his credibility. In each case the
trier of fact has to make an evaluation;
taking into account such
matters as the nature of the contradictions, their number and
importance, and their bearing on other parts
of the witness's
evidence.'
[7] As I see it, the contradictions between the police
witnesses in this case bear the hallmarks of honest mistakes. They
are patently
immaterial in that they do not advance or prejudice the
police case one way or the other. What is more, they are clearly of a
kind
that may result from erroneous observation in a confused
situation – which this undoubtedly was – or which can be
attributed
to defective recollection over the period of almost two
years that elapsed between the incident and the trial.
[8] What I find far more significant than these
inconsequential differences between the police witnesses is that, on
the material
facts, they are not only corroborated inter se, but
virtually in all respects by the defence witnesses. This is apart
from J to
whose version I shall presently return. The only difference
of note between the defence witnesses and the police relates to a
denial
by the former of the police account that they only started
shooting with rubber bullets after the commencement of the stoning by

the crowd. J, incidentally, saw no stoning at all. He only saw
shooting by the police. According to the other two defence witnesses,

the sequence was as follows:
After the incitement by Crause, members of the crowd
started to remove bags of perlemoen from the scene.
The police then started shooting in their direction
with rubber bullets.
Thereafter the crowd began to stone the police.
Subsequent to that the police ran out of rubber bullets
and started using their 9mm pistols.
[9] According to the rather terse judgment of the trial
court, it seems to have preferred the police version. I tend to
agree. On
the probabilities it would take an extraordinarily brave
person to remove the bags of perlemoen from eight armed policemen.
Much
more likely is the prospect that the crowd would first force the
police to retreat so as to enable them to remove the perlemoen.
That,
after all, is the strategy that eventually succeeded. Moreover, the
two defence witnesses, each for reasons of his own, hardly
earned
themselves any commendations for dependability. While Agenbag
expressed his avid support for his friend Crause and the poachers
in
the crowd who wanted to remove 'their' perlemoen, the other witness,
Inspector Robertson, contradicted himself at least four
times on this
very issue. But, be that as it may. On a proper analysis even the
controversy on this aspect proves to be immaterial,
in that the
acceptance of any one version in preference to the other would, in my
view, make no difference to the outcome of the
case. I say that for
the reasons that follow.
[10] By any standard, J was an unsatisfactory witness.
His valiant attempt to disassociate himself from the obstreperous
crowd drove
him to deny even the most obvious, for example, that he
had seen stones being thrown at the police. Nonetheless it is clear,
even
on his insupportable version, that his injuries must have been
caused by sharp point ammunition aimed in the general direction of

the crowd. By all accounts the police only started using sharp point
ammunition – as opposed to rubber bullets – after the
crowd had
started throwing stones. Logic therefore dictates that J sustained
his injuries through police action directed at the
stone throwing
crowd.
[11] Can it be said that in these circumstances the
police action which caused J's injuries does not attract liability
because it
was justified in circumstances of necessity? Unlike
self-defence – also referred to as private defence – the defence
of necessity
does not require that the defendant's action must be
directed at a wrongful attacker. There was therefore no need for the
respondent
to establish that J was himself part of the attacking
crowd. What the respondent had to prove in order to establish the
justification
defence of necessity, appears, for example, in broad
outline, from the following statements in 'Delict' 8(1)
Lawsa
(2ed) by J R Midgley and J C van der Walt,
para 87:
'An act of necessity can be
described as lawful conduct directed against an innocent person for
the purpose of protecting an interest
of the actor or a third party .
. . against a dangerous situation . . . .
Whether a situation of necessity
existed is a factual question which must be determined objectively. .
. .
A person may inflict harm in a
situation of necessity only if the danger existed, or was imminent,
and he or she has no other reasonable
means of averting the danger. .
. .
The means used and measures
taken to avert the danger of harm must not have been excessive,
having regard to all the circumstances
of the case . . .'.
(See also eg:
Crown Chickens (Pty)
Ltd t/a Rocklands Poultry v Rieck
2007 (2) SA
118
(SCA) paras 13 and 14; D Visser 'Delict' in F de Bois (ed);
Wille's Principles of South African Law
9ed
(2007) 1146; Neethling, Potgieter & Visser
Law
of Delict
5ed (2006) Chap 3 para 6.3.)
[12] It was not and could not be disputed that the
police were protecting legal interests. It was, however, contended on
behalf
of the appellant that the police exaggerated the danger they
were in. But both the trial court and the court a quo found otherwise

and I agree with this finding. Even Agenbag who obviously held no
brief for the police, explicitly admitted that the police were

literally in danger of their lives at the time they started firing
sharp point ammunition. The grievous nature of the situation
is
further objectively illustrated by the fact that the police were, by
all accounts, only able to leave the scene when Crause
ordered a
cessation of the stoning and that they were only able to return when
accompanied by reinforcements and in a police armoured
vehicle. In
the circumstances counsel for the appellant was unable to propose any
realistic alternative means by which the police
could avert the
danger. And I can think of none. Before firing sharp point ammunition
they had essentially tried everything else.
The question which
sometimes arises in matters of this kind, namely, whether the
defendant should rather have fled, does not even
occur. At the stage
when the police started to fire live ammunition, their attackers
simply did not allow them to flee.
[13] In the circumstances, I agree with the finding of
both the trial court and the court a quo, that the respondent had
discharged
the onus of establishing that the conduct of the police
officers which caused J's injuries, was not wrongful, in that their
actions
were justified by necessity.
[14] The appeal is dismissed with costs.
………………
.
F D J BRAND
JUDGE OF APPEAL
Counsel for Appellant : John Whitehead SC
Instructed
by : J L Martinson & Co
Cape
Town
Correspondent : Claude
Reid Inc
Bloemfontein
Counsel
for Respondent: Ashton Schippers SC
Stanley
O'Brien
Instructed
by : The State Attorney
Cape
Town
Correspondent : The
State Attorney
Bloemfontein