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[2006] ZASCA 159
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Minister of Safety and Security v Folo and Others (435/05) [2006] ZASCA 159; [2007] 1 All SA 149 (SCA) (26 September 2006)
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THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
REPORTABLE
CASE NO: 435/05
In the matter between
MINISTER OF SAFETY & SECURITY APPELLANT
and
NOFOTO FOLO
1
ST
RESPONDENT
SIYANDA SWELEKA 2
ND
RESPONDENT
THEMBA SWELEKA 3
RD
RESPONDENT
CORAM: MTHIYANE, BRAND, NUGENT, MAYA JJA and MALAN AJA
HEARD: 8 SEPTEMBER 2006
DELIVERED: 26 SEPTEMBER 2006
Summary: Interpretation of s 49(2) of Act 51 of 1977 – The
meaning to be given to the section as it was prior to being struck
down as unconstitutional.
Neutral Citation: This judgment may be referred to as Minister of
Safety & Security v N Folo & 2 Others [2006] SCA 117 (RSA).
___________________________________________________________
JUDGMENT
MTHIYANE JA:
MTHIYANE JA:
[1] The respondents sued the appellant in the Transkei High Court,
Umtata, for damages suffered by them as a consequence of the death
of
Mr Sivuyile Sweleka, the deceased husband of the first respondent and
father of her minor children, the second and third respondents.
The
deceased was shot and killed by Inspector Jameson Dingiso, a member
of the South African Police Service, who was at the time
on patrol
duty in Umtata. The shooting occurred on the night of 28 November
1997 after a police vehicle in which Dingiso was a passenger
had
given chase to a stolen vehicle driven by the deceased. The stolen
vehicle ultimately stopped when it collided with a pole and
turned
over. The deceased and his companion, Mr Vuyolwethu Matroshe, jumped
out of the vehicle and ran in different directions. Matroshe
made
good his escape. Dingiso continued to pursue the deceased on foot.
The deceased ignored requests to stop and, when Dingiso realised
that
he was being outpaced, he fired four shots at the deceased, all of
which hit him from behind. The last shot struck him in the
right
thigh as he tried to scale a boundary fence, and felled him.
[2] In his defence, adopted by the appellant at the trial, Dingiso
claimed that he had not acted unlawfully in that the killing of
the
deceased was justified and thus rendered lawful by
s 49(2)
of the
Criminal Procedure Act 51 of 1977
. As at the time of the shooting
s
49(2)
read:
‘
Where the person concerned is to be arrested for
an offence referred to in Schedule 1 or is to be arrested on the
ground that he is
reasonably suspected of having committed such an
offence, and the person authorised under this Act to arrest or to
assist in arresting
him cannot arrest him or prevent him from fleeing
by other means than by killing him, the killing shall be deemed to be
justifiable
homicide.’
[3] Sub-section (1) deals with use of force by an arrestor in
general. At the time this sub-section read:
‘
49 Use of force in affecting an arrest.
(1) If any person authorised under this Act to arrest or
to assist in arresting another, attempts to arrest such person and
such person
-
(a) resists the attempt and cannot be arrested without
the use of force; or
(b) flees when it is clear that an attempt to arrest him
is being made, or resists such an attempt and flees;
the person so authorised may in order to effect the
arrest, use such force as
may in the circumstances be reasonably necessary to
overcome the resistance
or to prevent the person concerned from fleeing.’
[4] Section 49 has been discussed more recently in two cases: one in
this court and the other in the Constitutional Court. In
Govender
v Minister of Safety and Security
1
this court was concerned with the interpretation of s 49(1) of
the Act. It laid down that under the sub-section the arrestor was
only
entitled to use a firearm or similar weapon if he had reasonable
grounds for believing that (a) the suspect poses an immediate threat
of serious bodily harm to her or him, or a threat of harm to a member
of the public; or (b) that the suspect had committed a crime
involving the infliction or threatened infliction of serious bodily
harm (para 24 at 284F–G). In
Ex Parte Minister of Safety and
Security and others: In re: S v Walters and another
2
s 49(2) was declared unconstitutional with prospective effect, which
means that s 49(2) was of full force and effect at the time
of the
incident. Following
Govender
and
Walters
both sections
49(1) and 49(2) were amended and substituted by s 7 of Act 122 of
1998 on 18 July 2003.
[5] At the trial the court was called upon to determine whether
Dingiso had complied with the requirements of justification under
s
49(2)
as at the time of the shooting
. After ordering a
separation of the issues of liability and quantum in terms of Uniform
Rule 33(4) as requested by the parties, Nhlangulela
AJ proceeded with
the trial and held that the killing of the deceased was not
justified. Applying what he ‘termed’, an
‘expanded
constitutional test’ he proceeded to read the
Govender
requirements
3
for justification under s 49(1) into s 49(2), and found that Dingiso
had not met the criteria for justification of the killing.
[6] The appeal to the full bench of the Transkei Division of the High
Court, with his leave, was unsuccessful. Schoeman J (with Nepgen
and
Sangoni JJ concurring) also held that the requirements of
reasonableness laid down in
Govender
for justification under s
49(1) applied to s 49(2). Otherwise, so Schoeman J held, it would
lead to an untenable position that lesser
requirements would be laid
down for justification of homicide than for a lesser injury within
the framework of s 49(1). The learned
judge found that it ‘would
be anomalous if, in order to lawfully injure a person when effecting
an arrest, the arrestor had
to act reasonably but no such
prerequisite of reasonableness is required when killing a person in
the same circumstances.’
It follows, the court concluded, that
the
Govender
requirements for compliance with s 49(1), had to
be read into s 49(2) at the time of the shooting. Since the deceased
had posed no
threat to anyone, so the judge found, and since the
theft of the vehicle did not involve the infliction of harm, Dingiso
had not
complied with the requirements of reasonableness as set out
in
Govender
. In the result the appeal was dismissed.
[7] The further appeal to this court is with the special leave. The
crisp question for decision is whether s 49(2) is to be given
its
ordinary (and unconstitutional) meaning when applied in the
circumstances of the present case or whether it is to be given a
meaning that is consistent with the construction that was placed on s
49(1) in
Govender
.
[8] In the appellant’s defence at the trial Dingiso at no stage
indicated that he was under any threat of violence from the
deceased
nor that the suspected theft of the vehicle was one where violence
was involved. He merely described how he had chased the
deceased; how
he fired a warning shot; and how he then aimed his further shots
below the waistline of the deceased. The
Govender
test
requires imminent serious harm prevention or previous serious harm
inflicted by the person shot, before the protection of the
s 49(1)
could be involved. It follows that if s 49(2) were to be interpreted
so as to incorporate the
Govender
criteria, Dingiso’s
reliance on this section would not prevail and that the killing of
the deceased would therefore not be justified.
That much was conceded
by Mr Kemp, for the appellant. The converse would however hold true
if the section is given its ordinary meaning,
as articulated in the
case law, uninfluenced by the decision in
Govender
, according
to which the enquiry is twofold: first, whether a reasonable
suspicion existed that the suspect had committed a Schedule
1
offence; second, whether the killing of the suspect was necessary to
prevent his escape or secure his arrest. (See
Matlou v
Makhubedu
.
4
)
[9] In my view the courts below erred in reading the requirements for
lawful injury during arrest as laid down by this court in
Govender
as applicable to s 49(1) of the Act into the provisions of s
49(2). If so read, it would be difficult to see how s 49(2) could be
unconstitutional as the approach adopted by the full bench would have
the effect of saving the section from constitutional invalidity.
That
approach is in conflict with
Walters
,
where Kriegler J
declared that s 49(2) was constitutionally invalid from the time the
Constitution came into effect on 27 April 1994
and refused to read in
the
Govender
criteria to save the section from invalidity. It
seems that Kriegler J considered, correctly in my view, that no means
of constitutional
engineering, either in the form of ‘reading
down’
5
or ‘reading in’, could save the section from invalidity.
[10] What is more,
Walters
declared s 49(2) unconstitutional
prospectively and not retrospectively. This meant that if Dingiso
were charged criminally for the
shooting the prosecution would not
have succeeded because the actions of Dingiso were protected under s
49(2) which treated the killing
as justifiable homicide. It is clear
from the decision in
Walters
that the defence in s 49(2) was
equally available in the event of the arrestor being sued civilly.
There is a sentence in the section
of the judgment of Kriegler J,
dealing with ‘Remedy’ (652E) which, when taken in
isolation, suggests that the
Govender
criteria apply to all
cases involving the shooting of a fugitive from arrest which had not
been disposed of at the time of judgment.
Such interpretation would,
however, be inconsistent with the court’s declaration of
invalidity of the s 49(2) with prospective
effect. It would also be
in conflict with the court’s assertion that the retrospective
taking away of a defence which had been
available to the arrestor in
a criminal and civil suit at the time, would be ‘manifestly
inequitable’(para 75).
[11] It is true that this approach results in the anomaly referred to
by Schoeman J. But the anomaly is inevitable when effect is
required
to be given to an unconstitutional statute, which is what the order
in
Walters
requires.
[12] In my view the court below, as did the trial court, erred in
reading s 49(2) so as to incorporate the
Govender
requirements.
For the above reasons the court should have upheld the appeal and set
aside the finding of liability in favour of the
respondents.
[13] Accordingly the appeal is allowed with costs, including the
costs of two counsel. The order of the court
a quo
is
substituted with the following:
‘The appeal is allowed with costs. The order of the trial court
is set aside and replaced with the following:
‘‘The plaintiffs’ claims are dismissed with
costs’’.’
_______________________
KK MTHIYANE
JUDGE OF APPEAL
CONCUR:
BRAND JA
NUGENT JA
MAYA JA
MALAN AJA
1
2001 (4) SA 273
(SCA).
2
[2002] ZACC 6
;
2002 (4) SA 613
(CC).
3
(a) The suspect must pose a danger of harm to the
arrestor and (b) that the suspected crime must be one involving the
infliction
of violence.
4
1978 (1) SA 946
(A).
5
For a full discussion see Jonathan Klaaren
‘Judicial Remedies’ in Matthew Chaskalson
et
al
–
Constitutional
Law of South Africa
pp 9.5-9.7.