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[2007] ZASCA 21
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Minister of Safety and Security v Mohofe (200/06) [2007] ZASCA 21; [2007] 4 All SA 697 (SCA); 2007 (4) SA 215 (SCA); 2007 (2) SACR 92 (SCA) (23 March 2007)
Links to summary
THE
SUPREME COURT OF APPEAL
OF SOUTH AFRICA
CASE NO: 200/06
Reportable
In
the matter between
MINISTER
OF SAFETY AND SECURITY
......................
Appellant
and
MATHUME
MOHOFE
......................
Respondent
Coram
: HOWIE P, FARLAM, NUGENT, LEWIS, JAFTA JJA
Heard: 23 FEBRUARY 2007
Delivered:
23 MARCH 2007
Summary:
A
police officer who announces his presence and orders armed and
fleeing robbery suspects to stop is not guilty of negligence merely
by reason of that fact where a suspect, in response to the order,
shoots at him but the shot hits an innocent bystander who is killed.
Neutral
citation: This case may be cited as
MINISTER OF SAFETY AND
SECURITY v MOHOFE
[2007] SCA 21 (RSA)
JUDGMENT
LEWIS JA
[1] At about 16h00 on 12 March 2001, near the corner of Bree and
Rissik Streets, Johannesburg, Inspector Gerson Nemengaya, a police
officer in plain clothes on patrol in the area, saw three men emerge
from a shop that he suspected had been robbed. Two of the men,
at
least, were armed. They had tucked their firearms in the waistbands
of their trousers on leaving the shop. The men fled the area:
he
approached them, shouting that he was a policeman. He ordered them to
stop. Two continued running. The third, identified later
as Mr
Banyana Sibeko, whom Nemengaya had seen in the shop holding a
firearm, stopped and fired a shot at him. Nemengaya dived to
the
ground. The shot missed him. He chased after them, and about three
blocks from the scene of the shooting, Nemengaya fired a warning
shot
into the air, ordered Sibeko to stop, and, when Sibeko ignored him,
shot him in the leg. Nemengaya and another police officer,
with whom
he was on duty, arrested Sibeko and took him back to the scene of the
robbery. There they found Mr Johannes Mohofe, who
had been shot,
lying on the ground. He was taken to hospital but died the same day.
[2] The respondent was the mother of Mohofe, and, arising out of his
death, claims damages from the appellant for loss of support
for
herself and on behalf of the minor children of Mohofe. The issue in
this appeal is whether the appellant (the State) is delictually
liable for the conduct of Nemengaya, as the respondent alleges. She
claims from the State on the basis that it is vicariously liable
for
the wrongful and negligent conduct of Nemengaya in causing the death
of Mohofe. Although it was found that Mohofe had actually
been shot
by Sibeko when he opened fired on Nemengaya, the claim is based on
the alleged negligent and wrongful conduct of Nemengaya
in alerting
Sibeko to the fact that he was a policeman, thus causing Sibeko to
shoot into a crowd of innocent bystanders. (The respondent
had
originally alleged that her son had been shot by Nemengaya. The trial
court found that this was not the case, and accepted that
Mohofe had
been struck and killed by the shot fired by Sibeko. This finding is
not in issue on appeal.)
[3] The trial court (Schwartzman J in the Johannesburg High Court)
found for the respondent: it held that Nemengaya owed a legal
duty to
protect Mohofe, that he had acted in breach of that duty (wrongfully)
and had negligently caused the death of Mohofe. The
State was thus
held to be vicariously liable. The appeal against the decision lies
with the leave of Schwartzman J.
[4] In the view I take, it is not necessary to decide whether or not
Nemengaya’s conduct in calling out to Sibeko can properly
be
said to have been the cause of Mohofe’s death but I shall
assume that it was. An act that causes injury to another, or death,
is prima facie wrongful.
1
I assume also that there are no other matters of policy that should
operate against that principle in this case. The only issue to
be
determined, therefore, is whether Nemengaya’s conduct was
negligent.
[5] The trial court concluded that Nemengaya was guilty of
negligence. The classic test for negligence set out in
Kruger v
Coetzee
,
2
cited by the learned trial judge, requires a court to ask whether the
reasonable person in the position of the defendant would have
foreseen the reasonable possibility of his conduct injuring another
and causing him patrimonial loss; and, if so, whether the reasonable
person would have taken
reasonable steps
to guard against the
occurrence of harm. The fact that harm is reasonably foreseeable does
not necessarily mean that the defendant
was required to act to
prevent it occurring. As Holmes JA said in
Kruger v Coetzee
:
3
‘
Whether
the
diligens
paterfamilias
in
the position of the person concerned would take any guarding steps at
all and, if so, what steps would be reasonable, must always
depend
upon the particular circumstances of each case.’
[6] The trial court concluded that Nemengaya was guilty of negligence
because he foresaw the possibility of his conduct causing injury
and
thus patrimonial loss, but he failed to guard against the injury in
calling out as he did. He could have guarded against the
injury by
not calling out. It is these findings that are open to question.
[7] Nemengaya had been a police officer for some nine years before
the shooting occurred. He was patrolling around Bree Street with
a
colleague, and was armed with his service pistol. He had seen the
three men emerge from the shop with firearms. At that time his
colleague was not on the scene. Nemengaya did what he said he had
been trained to do as a policeman: he announced his presence and
ordered the suspects to stop. He had been instructed not simply to
chase after fleeing suspects, but to warn them first that he was
a
police officer, and order them to stop. That is standard procedure.
His opinion was that in most cases suspects would then surrender.
[8] Nemengaya admitted that the area where the shop had been robbed
was crowded with pedestrians. People were on their way home from
work. He also conceded that an armed suspect, alerted to the fact
that he was a police officer, might fire at him and hit someone
else.
But he refused to concede that he should have run after the suspects
until they reached a place where there were no bystanders
and only
then have shouted a warning. ‘It does not work like that’,
he said. You cannot just ‘follow him until
he comes to the area
where it is clean because my aim is to protect the public and to
arrest the person who do wrong’.
[9] The test for negligence is objective. Would the reasonable police
officer in the position of Nemengaya have foreseen that if
he alerted
the suspects to his presence one of them might shoot at him and
injure or kill a bystander in the process? It seems to
me to have
been an objectively reasonable possibility. But there are other
possibilities that the reasonable police officer might
foresee too.
He might reasonably foresee that if he called out that he was a
policeman and ordered the fleeing suspects to stop they
might do so.
And as I have said, Nemengaya’s testimony, uncontradicted by
other evidence, was that fleeing suspects ‘must
surrender’
when alerted to the presence of the police. Another reasonably
foreseeable possibility was that the armed suspects
might continue
fleeing and not only escape being apprehended but also constitute a
further danger to the public at any stage in their
flight If the
crowds had become denser further on they might have panicked and
resorted to shooting to ensure escape.
[10] In the same circumstances a reasonable police officer in the
position of Nemengaya would have to make a choice as to the best
steps to take to fulfil the duty to protect the public and apprehend
criminals. He could not stand by and do nothing. That would
be in
dereliction of his duty. And his choice as to the steps to be taken
would inevitably be made on the basis of his training and
his
experience.
[11] Nemengaya believed, correctly, that he had a duty to protect the
public. This is a duty that flows from the Constitution: s
205(3)
provides that ‘The objects of the police service are to
prevent, combat and investigate crime, to maintain public order,
to
protect and secure the inhabitants of the Republic and their
property, and to uphold and enforce the law.’ The duty is
imposed
also under the South African Police Service Act
4
the preamble of which affirms that it is the duty of police officers
to ensure the safety and security of all people in the country.
5
His duty was owed both to the members of the public around him and
also to those with whom the suspects might come into contact in
their
attempted escape.
[12] Nemengaya discharged that duty by doing what he had been trained
to do. There is nothing to suggest that he behaved in a manner
different from the way in which the hypothetical reasonable police
officer would behave in the circumstances. If the reasonable police
officer would foresee the possibility that an innocent bystander
might be injured or killed by an armed suspect, what steps would
he
take to avert this while nevertheless doing his duty? In determining
whether the second test in
Kruger v Coetzee
has been met, one
must weigh the ‘gravity of the risk’ (a bystander being
shot) with the ‘utility of his conduct’,
6
apprehending at least one of the suspects. In
Herschel v Mrupe
7
Schreiner JA famously said:
‘
No
doubt there are many cases where once harm is foreseen it must be
obvious to the reasonable man that he ought to take appropriate
avoiding action. But the circumstances may be such that a reasonable
man would foresee the possibility of harm but would nevertheless
consider that the slightness of the chance that the risk would turn
into actual harm, correlated with the probable lack of seriousness
if
it did, would require no precautionary action on his part. Apart from
the cost or difficulty of taking precautions, which may
be a factor
to be considered by the reasonable man, there are two variables, the
seriousness of the harm and the chances of its happening.
If the harm
would probably be serious if it happened the reasonable man would
guard against it unless the chances of its happening
were very
slight. If, on the other hand, the harm, if it happened, would
probably be trivial the reasonable man might not guard against
it
even if the chances of its happening were fair or substantial.’
To this should be added the rider that the reasonable person might
not guard against the risk if the alternatives posed just as much
risk.
[13] Thus when the reasonable police officer foresees the possibility
that a fleeing suspect might, when confronted by a policeman,
shoot
at him and hit a bystander instead, he would also weigh the
likelihood of this happening against the possibility that the
suspects
might escape, and continue to be a danger to the public if
he did nothing. He would also take into account the likelihood of the
suspects surrendering, even if this was not great. The risk of
allowing the suspects to escape had to be weighed against all that.
By shouting out that he was a policeman, and chasing after Sibeko,
Nemengaya managed to apprehend him. That, at least in part, was
the
result he sought to achieve.
[14] In determining whether the driver of a train was negligent
Wessels CJ in
South African Railways v Symington
8
said that a court should take great care
‘
lest
we stigmatize a person as guilty of
culpa
when
in fact he did all that could be expected of him under the particular
circumstances of the case. This involves a correct appreciation
not
only of the surrounding circumstances but also of human nature, so as
to be able to judge correctly what a particular person
ought or ought
not to have done in the circumstances. One man may react very quickly
to what he sees and takes in, whilst another
man may be slower. We
must consider what an ordinary reasonable man would have done.
Culpa
is not
to be imputed to a man merely because another person would have
realized more promptly and acted more quickly. Where men have
to make
up their minds how to act in a second or a fraction of a second, one
may think this course the better whilst another might
prefer that. It
is undoubtedly the duty of every person to avoid an accident, but if
he acts reasonably, even if by a justifiable
error of judgment he
does not choose the very best course to avoid the accident as events
afterwards show, then he is not on that
account to be held liable for
culpa
.’
And in
S v Bochris Investments (Pty) Ltd
9
this court cautioned against being influenced by ‘the insidious
subconscious influence of
ex post facto
knowledge’ (a
phrase used by Williamson JA in
S v Mini
10
).
The cautionary note is repeated in
Minister of Safety and Security
v Carmichele
.
11
[15] Nemengaya was caught up in a situation where he had to act
quickly and protect the public from three fleeing robbery suspects.
He acted as he had been trained to do. It is not clear to me that he
was guilty even of an error of judgment. What other action could
Nemengaya have taken to stop and apprehend armed men whom he
suspected of having committed a robbery? No answer is suggested by
the
appellant other than that he should not have alerted the suspects
to his presence but should rather have chased them to a place where
there were no bystanders. With hindsight it is possible that he may
have avoided the death of Mohofe. But equally, he may well have
been
derelict in his duty in doing so, for all the fleeing suspects, at
least two of whom were armed, might easily have disappeared
or harmed
others when fleeing.
[16] Nemengaya did no more than alert the suspects to the fact that
he was a policeman and call on them to stop. He acted in terms
of
standard police procedures that have not been demonstrated to be
ineffective or inappropriate. The logical consequence of the
appellant’s argument, on the other hand, is that whenever
police officers are confronted by armed and thus dangerous people
who
flee from the scene of a crime, they must remain silent and do no
more than covertly chase after the suspects until they reach
a place
where there are no bystanders. If this were so, criminals would hold
sway in any busy place. No court should be understood
to suggest that
police officers should be supine in the face of criminal activity.
Some action was required. On the evidence it cannot
be said that the
reasonable police officer would have viewed the risk attendant on
calling out as greater than the risk of the suspects
shooting a
member of the public in the immediately ensuing stage of their
getaway.
[17] In the circumstances Nemengaya did not act negligently. The
claim should have been dismissed.
[18] The appeal is upheld with costs. The order of the court below is
replaced with:
‘
The plaintiff’s claim is dismissed
with costs.’
C H Lewis
Judge of Appeal
Concur:
Howie P
Farlam JA
Nugent JA
Jafta JA
1
Cape
Town Municipality v Paine
1923 AD 207
at 216-217;
Minister of
Safety and Security v Van Duivenboden
2002 (6) SA 431
(SCA) para
12 and
Minister van Veiligheid en SekuriteIt v Geldenhuys
2004 (1) SA 515
(SCA) para 24.
2
1966
(2) SA 428
(A) at 430E-F.
3
Above
at 430F-H.
4
Act
68 of 1995.
5
See
the discussion of these duties in
K v
Minister of Safety and Security
[2005] ZACC 8
;
2005
(6) SA 419
(CC) paras 18 and 19.
6
Crown
Chickens (Pty) Ltd v Rieck
[2006] SCA
127 (RSA) para 14.
7
1954
(3) SA 464
(A) at 477A-C.
8
1935
AD 37
at 45.
9
1988
(1) SA 861
(A) at 866-867.
10
1963
(3) SA 188
(A) at 196E-F. See also
Sea
Harvest Corporation (Pty) Ltd v Duncan Dock Cold Storage (Pty) Ltd
2000 (1) SA 827
(SCA) paras 21 and 22.
11
2004
(3) SA 305
(SCA) para 45.