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[2011] ZAKZDHC 61
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Ngubane v Chief Executive Director of Emergency Services, Ethekwini Metropolitan Services and Another (14847/2005) [2011] ZAKZDHC 61; 2013 (1) SACR 49 (KZD) (1 December 2011)
KWAZULU-NATAL
HIGH COURT, DURBAN
REPUBLIC
OF SOUTH AFRICA
Case no: 14847/2005
REPORTABLE
In the matter between:
MUSAWENKOSI NGUBANE
….........................................................................................
PLAINTIFF
And
CHIEF EXECUTIVE DIRECTOR OF
EMERGENCY SERVICES ETHEKWINI
METROPOLITAN SERVICE
…...............................................................................
FIRST
DEFENDANT
MILES DOUGLAS XAVIER MITCHELL
…..........................................................
SECOND
DEFENDANT
JUDGMENT
MADONDO J
[1] In this action the plaintiff claims damages from the
defendants in consequence of bodily injuries suffered by the
plaintiff
on 21 October 2004 at the corner of Point Road and West
Street, Durban, when the second defendant shot and injured him in the
chest
and both legs.
[2] The plaintiff is
Musawenkosi
Ngubane, a major male of 1680 Othweba Location, Catoridge.
[3] The first defendant is the Chief Executive Director
of Emergency Services of
Ethekwini
Metropolitan Services, also known as Durban Police Service, of 75
Winder Street, Durban.
[4] The second defendant is Miles Douglas Xavier
Mitchell, a major male, Durban Metropolitan Police Officer, attached
to the Dog
Unit at 16 Old Fort Place, Durban.
[5] At the time the second defendant shot at the
plaintiff he was in the employ of the first defendant. He acted in
the course and
within the scope of his employment with the first
defendant, and as a result the first defendant is vicariously liable
for the
action of the second defendant.
[6] At the request of the parties in terms of Rule 33(4)
the issues of liability and the quantum of damages were separated at
the
commencement of the trial. This court has been asked to try and
determine the issue of the defendant’s liability only. The
question of the quantum of damages is accordingly held over for later
determination, if the need arises.
[7] It is common cause that a
shootout between the plaintiff and one, Bheki, occurred on 21 October
2004 at the corner of Point
Road and West Street, Durban. The two
were fighting over a girlfriend.
The second defendant and
other members of the Metropolitan Police Service attended the scene
of the shooting. On their arrival the
member of the Metropolitan
Police Service announced their presence on the scene and ordered the
plaintiff and the said Bheki to
stop shooting at each other.
[8] Bheki dropped down his firearm and raised his hands.
However, the plaintiff did not do as Bheki did, instead, he turned
around
and faced the second defendant and his colleagues with a
firearm in his hand, pointed in their direction.
[9] Seeing that the plaintiff was then posing imminent
danger to the safety of his security and of the members of the public
at
large, the second defendant fired three shots at the plaintiff in
quick succession and he, the second defendant, took cover behind
a
parked vehicle.
[10] Whereupon the plaintiff fell backwards onto the
pavement. On approaching the spot the plaintiff had fallen down, the
second
defendant noticed that the plaintiff still had the firearm in
his hand.
Realising
that he had not hit the
target the second defendant shouted at the plaintiff and told him to
drop the gun. It was only then the
plaintiff dropped the gun.
[11] The plaintiff alleges that the second defendant
unlawfully and wrongfully shot and injured him. To the contrary, the
defendants
aver that at the time the second defendant fired shots at
the plaintiff he was acting in self defence and in defence of the
members
of the public at large. In support of their contention the
defendants rely on the provisions of
section 49
of the
Criminal
Procedure Act, 51 of 1977
. This section provides:
“
Use of force in effecting
arrest –
(1) For the purposes of this section –
“
Arrestor” means any
person authorised under this Act to arrest or to assist in arresting
a suspect; and
“
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 an arrestor attempts to arrest a suspect and the
suspect 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 reasonable 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
purposes 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; or
(c) That the offence for which the arrest is sought is
in progress and is of forcible and serious nature and involves the
use of
like threatening violence or a strong likelihood that it will
cause grievous bodily harm.”
[12] Before a conduct maybe statutorily justified, the
accused must prove on the balance of probabilities that he complied
with
the following requirements (
S v Janse Van Ransburg and
another 2009(2) SACR 216(C) at 224 paragraph 22):
(a) That he was authorised by the Criminal Procedure act
to arrest or assist in the arrest of the person who had been
assaulted;
(b) That he made an attempt to arrest the injured person
– he must have actually made an attempt to deprive him of his
freedom
in order to secure his presence in court not to punish him
(Wierner v Molomo 1983(3) SA 151(A) at 158E-H).
(c) That the injured person had resisted arrest and
could not be taken into custody without the use of force or that the
injured
person had fled whilst it was clear to him that an attempt
was being made to arrest him and that such flight could not be
prevented
without the use of force;
(d) That the force which was used to overcome resistance
or to prevent the flight was reasonably necessary and proportional in
the
circumstances;
(e) That the suspect has posed a threat or danger of
serious physical harm.
[13] In S v Govender
2001 (2) SACR 197(SCA)
at 204- 205,
the Supreme Court of Appeal introduced the threat or danger posed by
the fugitive to the arrestor, to others or to
society as an important
additional factor whereby the proportionality of the force to be
permitted in arresting a fugitive, had
to be determined. In
Exparte:
Minister of Safety and Security: In re S v Wallis 2002(2) SACR 105
(CC) 127 – 138, the seriousness of the relevant offence
was
rejected as the only criterion determining proportionality.
[14] In Govender case, supra, at p205 d-e, in applying
the Constitutional standard of reasonableness, the court expanded the
test
of proportionality between the seriousness of the offence and
the force used to include a consideration of proportionality between
the nature and degree of force used and the threat posed by the
fugitive to the safety of security of police officers, other
individuals
and society.
[15] It has been contended that the conduct of the
second defendant fell within the ambit of the provisions of
section
49
of the Act; alternatively, the second defendant was in danger and
defended himself in a situation of necessity. The second defendant
is
a police officer and therefore he was authorised to effect an arrest.
In the premises, the second defendant satisfied the first
requirement. With regard to the second requirement it is difficult if
not impossible to say that the second defendant made an attempt
to
effect an arrest on the plaintiff. However, it has been argued that
the shouting by the second defendant “stop this is
the police”
was sufficient to communicate to the plaintiff who was armed with a
firearm which he had discharged that he was
about to be arrested. In
my view, this statement could not be conclusive in this regard on the
grounds that the plaintiff was in
lawful possession of a firearm and
in his mind he was acting in self defence.
[16] The evidence does not show that the plaintiff had
at any stage resisted an arrest. The second defendant cannot,
accordingly,
be heard to say that the force he used was necessary to
overcome or to prevent the flight. No evidence has been led to the
effect
that the plaintiff made any attempt to flee. The second
defendant has once again failed to satisfy this requirement.
[17] However, the evidence adduced points to that the
plaintiff posed a threat or danger of serious physical harm which
compelled
the second defendant to defend himself against it. It is
lawful for any person to use a reasonable degree of force for the
protection
of himself or any other person against unlawful use of
force. See Mckerron Law of Delict 7
th
ed at 74. Force is
not reasonable if it is either unnecessary, i.e. greater than is
requisite for the purpose or disproportionate
to the evil to be
prevented.
[18] It is unnecessary to decide whether the plaintiff’s
conduct ought to be regarded as resistance to arrest as the
alternative
plea of self defence is relevant to the facts of this
case. I shall now proceed to consider the matter on the facts I have
found
proven whether the shooting was justified, more particularly
whether the defendants have discharged the onus of proving
justification.
See Mabaso v Felix 1981(1) SA 864(A).
[19] In Ntsomi v Minister of Law and Order 1990(1) SA612
(CPD) at 526G-H, the requirements to be satisfied before a plea of
self
defence is upheld were summarised as follows:
(a) There must have been an unlawful attack or
threatened attack and the victim must have reasonable grounds for
believing that
he was in physical danger;
(b) The means of defence must have been commensurate
with the danger and dangerous means of defence must not have been
adopted in
some other reasonable way.
[20] The same test is applied in cases of self-defence
as in cases of attempted arrest. See R v Koning
1953 (3) SA 220(T).
There must have been actual presence of imminent danger, a reasonably
apparent of necessity of taking the action taken. It is common
cause
that the plaintiff was involved in a shootout between him and one
Bheki Nyoka at the corner of Brackhill and Point Road when
the second
defendant and Maggos arrived on the scene. The second defendant and
Maggos were on duty, clad in a police uniform and
travelling in a
police van. They announced their presence on the scene by saying,
“stop this is the police” and ordered
to the two who were
engaged in a shootout to cease fire. Bheki stopped immediately and
dropped his gun down. However, the plaintiff
turned around and faced
the direction of the second defendant and Maggos with a firearm in
his hand, pointed in the same direction.
[21] Both the second defendant and Maggos testified that
the plaintiff pointed a firearm in their direction and that such a
conduct
by the plaintiff constituted imminent danger to the life of
the second defendant, for instance. However, there has been a
discrepancy
in the evidence of the two as to how plaintiff went about
in pointing a firearm in their direction. The second defendant said
that
the plaintiff pointed a firearm at him moving the hand that
carried a firearm across his chest whereas Maggos said that the
plaintiff
pointed the firearm at the second defendant with a hand
stretched out. He went on to demonstrate the manner the plaintiff
pointed
a firearm by making a gesture with his right hand sticking
out in front of his chest, simulating a firearm. The discrepancy as
to how the plaintiff went about in pointing a firearm in the
direction of the second defendant is in, my view, not material and
decisive of the matter. The crux of the matter is whether or not the
plaintiff pointed the firearm in the direction of the members
of the
police. Both witnesses testified that the plaintiff did point a
firearm in the direction of the second defendant. The plaintiff
said
that at the time he was shot at, he had a firearm in his hands facing
upwards. Raising hands with a firearm in them was in
itself quite
unusual and constituting imminent danger to the members of the
police. It has also been common cause that after the
second defendant
had fired shots at the plaintiff, the plaintiff still had firearm in
his hand.
[22] In his evidence-in-chief the plaintiff testified
that the police shot him whilst he was raising his hands, with a
firearm pointing
upwards. However, he later changed to say that he
was shot three times at different stages: At the first stage, he was
shot and
injured whilst he was crouching behind the concrete bin, the
second occasion, when he raised his hand, and lastly, after he had
dropped the firearm down. During such episodes the plaintiff was shot
twice on the legs, abdomen and the chest.
[23] However, it is not in dispute that when the second
defendant fired three shots at the plaintiff, the plaintiff had a
firearm
in his hand. He fell backwards onto the pavement still
holding a firearm until the second defendant told him to drop it
down.
[24] It has never been disputed that the second
defendant fired three shots in the direction of the plaintiff in
quick succession.
Nor has it been put to the second defendant that he
first shot the plaintiff whilst he, the plaintiff, was crouching
behind the
concrete bin and that he also shot him after dropping the
gun. The version of the plaintiff has been that the police shot him
whilst
he was raising hands. That the plaintiff was shot at on three
different occasions has , in my view, been a recent fabrication. The
plaintiff has manufactured his evidence as he moved along. Nor did
the plaintiff mention the three episodes at the disciplinary
inquiry.
The probabilities, as established by evidence, are that the plaintiff
was shot at once by the second defendant when he
fired three shots in
quick succession.
[25] Some of the injuries the plaintiff had sustained
could have been caused at the time the second defendant fired three
shots
at the plaintiff. On the plaintiff’s version, Bheki shot
him in the ankle. The second defendant could not tell whether or
not
any of the shots he fired struck the plaintiff. However, in the
circumstance of this case such a possibility could not be excluded.
At this juncture the injuries the plaintiff suffered are of no
significance since this court is presently only determining whether
or not the defendants are liable to compensate the plaintiff for
damages he suffered as a result of the injuries sustained during
the
shooting incident. The nature and extent of the injuries sustained
will only become relevant if the court finds that the defendants
are
liable to compensate the plaintiff.
[26] Now, I turn to decide whether at the time the
second defendant fired shots at the plaintiff he was justified to do
so or whether
he fired those shots in the circumstances which
rendered his conduct unlawful and wrongful. The conspectus of
evidence shows beyond
any reasonable doubt that at the time the
second defendant fired three shots in the direction of the plaintiff,
plaintiff had a
firearm in his hand pointed in the direction of the
second defendant. According to both the second defendant and Maggos
the conduct
of the plaintiff posed a threat to the life of the second
defendant and necessitated him to take a quick action. This finds
corroboration
in the evidence of Sukdeo that such circumstances
constituted imminent danger to the safety of the security of the
second defendant
though Sukdeo was of the view that the second
defendant was supposed to have fired only one shot. However, this
goes to the question
whether or not the second defendant exceeded the
bounds of self defence.
[27] The second defendant had ordered both the plaintiff
and Bheki to stop shooting at each other. Bheki immediately stopped
shooting,
dropped his gun down and threw his hands in the air.
However, the plaintiff did not do the same but he turned around with
the firearm
in his hand and faced the direction of the members of the
police. Notwithstanding, the fact that the plaintiff saw that the
police
were clad in police uniform and travelling in the police
vehicle, he did not let go of his firearm. A reasonable policeman in
the
position of the second defendant would have reason to consider
him to be in danger or serious injury, even death, regard being had
to the fact that the plaintiff had already been injured in the
shootout between him and Bheki. The second defendant had therefore
reasonable grounds for believing that the plaintiff might shoot him.
These circumstances demanded that the second defendant should
take a
quick action in defence of his life and of the lives of the members
of the public at large, regard being had to the fact
that the
shooting incident occurred in a crowded area in the city. Turning
around in the circumstances and flee would present an
opportunity to
the plaintiff to shoot him in the back. The second defendant had
therefore to defend himself with whatever he had
in his hands. At the
time the second defendant had a firearm in his hands which he could
reasonably use to defend himself.
[28] I am satisfied that when the second defendant fired
three shots he was acting in self defence. He had no deliberate
intent
to injure the plaintiff. This is quite evident from the fact
that after the plaintiff had fallen down the second defendant
advanced
towards the plaintiff and when he discovered that he still
had a firearm in his hand, he did not shoot him but he told him to
drop
his gun down, instead. The fact that the plaintiff still had a
firearm in his hand in law entitled the second defendant to fire
more
shots at the plaintiff.
[29] Had the second defendant shot and rendered the
plaintiff incapacitated and the firearm came out of his hand, firing
at the
plaintiff in the circumstances would deprive the second
defendant the protection of acting in self defence. The plaintiff had
a
firearm in his possession and, in the premises; the force used by
the second defendant was commensurate with the threat which was
being
averted. The second defendant need not wait until the plaintiff fired
a shot before he could defend himself.
[30] It has been argued that by firing three shots the
second defendant exceeded the bounds of self defence. This also finds
support
in the evidence of Sukdeo. In my view, this is an arm chair
criticism. If the first shot hit the plaintiff and rendered him
incapacitated,
continued shooting at the plaintiff in the
circumstances, would constitute exceeding the bounds of self defence.
[31] In the light of the evidence adduced before this
Court the second defendant’s conduct was not unlawful and
wrongful.
In fact, he was justified to shoot the plaintiff since he
was posing a threat or danger to his life (the second defendant’s)
and to the members of the public at large in such a crowded area. Nor
does the evidence show that in so doing he exceeded the bounds
of
self defence. In consequence thereof the defendants cannot be held
liable to compensate the plaintiff for the damages he suffered
as a
result of the bodily injuries he sustained during the shooting
incident.
[32] In the result, the plaintiffs claim for damages is
dismissed with costs.
Date judgment reserved: 30 September 2011
Date judgment delivered: 1 December 2011
Counsel for Plaintiff: Adv Ndaba
Instructed by: PONOANE ATTORNEYS
Ref: MJP/BH/B-3
Counsel for Defendant: Adv Maharaj
Instructed by: MERRS. NAIDOO MAHARAJ INC
Ref: MS Y NAIDU/PR/E234