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[2008] ZAWCHC 155
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October and Others v Minister of Safety and Security (2120/2004) [2008] ZAWCHC 155 (7 March 2008)
JUDGMENT
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
CASE
NO:
2120/2004
DATE
: 7
MARCH 2008
In
the matter between:
ALIDA
OCTOBER 1
st
Plaintiff
LYDIA
MAKIMETSO MOROLONG
2
nd
Plaintiff
SARAH
PETRONELLA ARENDSE
3
rd
Plaintiff
TRISIA
CONSTANCE
4
th
Plaintiff
NICOLENE
ARENDSE
5
th
Plaintiff
DANIEL
JANUARY
6
th
Plaintiff
JONATHAN
HENDRICKS
7
th
Plaintiff
HENRY
J C STEENBERG
8
th
Plaintiff
DENNIS
BENJAMIN
9
th
Plaintiff
and
MINISTER
OF SAFETY & SECURITY Defendant
JUDGMENT
SALDANHA.
AJ
:
[1]
The plaintiff's claim for damages arises out of an incident which
occurred in the residential area of Stanford on the night
of 16
March 2004. The first plaintiff, Ms Alida October, sues in her
personal capacity, that is mother and natural guardian of
three
minor children for the death of her husband, Mr Joseph Johannes
October, who died on 23 March 2003(?) as a result of the
incident.
[2]
The second plaintiff, Ms Lydia Makimetso Morolong also sues in her
capacity as mother and natural guardian of Jajabo Gabriel
Setlemogo(?) who was at the time of the incident a minor.
[3]
The third plaintiff, Ms Sarah Petronella Arendse, sues in her
capacity as mother and natural guardian of Noleen October who
at the
time of the incident was also a minor.
[4]
The remaining plaintiffs, numbers 4-9, sue in their personal
capacities as a result of injuries sustained by them in the
incident. For the purposes of this judgment, Setlobogo and Noleen
October will be dealt with as if they are the second and third
plaintiffs respectively.
[5]
The p tain tiffs claim in their particulars of claim that members of
the defendant, the Minister of Law and Order, acting
in the course
and scope of their employment, wrongfully, unlawfully and
intentionally shot at members of a crowd which caused
the death of
Mr October and injured the remaining plaintiffs. In the
alternative, plaintiffs claim that the members of the
defendant were
negligent on shooting at the crowd.
[6]
The defendant initially denied that its members had caused the death
and injuries as claimed and in amplification of its dental
claimed
that its members at all times had acted lawfully in the discharge of
their duties.
[7]
At the commencement of the trial the defendant amended its plea and
while maintaining that its members had acted lawfully,
claimed that
their actions were justified on the basis that:
Members
of the defendant had acted out of necessity as the crowd had
unlawfully threatened the lives and safety of the police
by
throwing stones and other dangerous objects at them and at their
motor vehicles, alternatively;
members
of the defendant had acted in self-defence as the crowd had
unlawfully threatened the lives and safety of the police
by
throwing stones or other dangerous objects at them and at the motor
vehicle, further alternatively;
3.
the plaintiffs and the deceased had voluntarily assumed the risk of
being injured when making common cause with members of
the public
were unlawfully threatened and/or assaulted the police by throwing
stones and/or other dangerous objects at them and
their motor
vehicles.
[8]
At the commencement of the proceedings the legal representatives for
the plaintiffs and the defendant submitted that by agreement
between
the parties the determination of the merits of was to be separated
from that of the
quantum.
Counsel
for defendant, Mr
van
der Schyff
.
also confirmed that the defendant had abandoned its point
in
limine
in
which it had claimed that the plaintiffs had failed to comply with
the provisions of section 3 of the Institution of Limit
of Legal
Proceedings Against Certain Organs of State, Act 40 of 2002.
Background
[9]
During the evening of 16 March 2004, Inspector David Kolide
(indistinct) while on patrol duty with Constable reservist Riccardo
Mengel in the township of Hopland, Stanford, observed a red Mazda
motor vehicle being driven recklessly through the streets.
They
gave chase and directed the driver of the Mazda vehicle to stop. The
driver failed to do so and also disobeyed a number
of stop signs,
with the police in pursuit. He eventually came to a standstill in
the driveway of a house, No. 1543 Compacter
Street, which belonged
to one Sylvia and which was run as a shebeen.
[10]
(Indistinct) pulled up immediately behind the red Mazda and both he
and Mengel alighted in order to effect the arrest of
the driver. One
of the passengers of the red Mazda vehicle, Ivan, a brother of
Sylvia, got out of the vehicle and disappeared.
At this stage it
appeared that a crowd of onlookers had assembled in the yard at
1543. (Indistinct) attempted to arrest the driver
of the motor
vehicle, one Bastiaan, who had also appeared to have been under the
influence of alcohol. He claimed that the crowd
obstructed him while
he attempted the arrest, as a result of which Bastiaan was able to
get away.
[11]
Mengel had at that stage disappeared amongst the crow. (Indistinct)
returned to the patrol vehicle and found that the keys
had been
removed from ignition by somebody. He immediately called the
Stanford police station over the vehicle's radio for back-up.
It was
common cause that a number of other police vehicles arrived at the
scene in response to the back-up call. The Stanford
police station
was also asked to send a spare key for (indistinct) patrol van.
[12j
There were various versions with regard to the behaviour of the
crowd. The police witnesses contended that the crowd was
unruly,
aggressive and had thrown stones at them and at their motor
vehicles. Most of the plaintiffs who were on the scene disputed
that
the crowd was aggressive and most denied that any stones were thrown
at the police or at the vehicles.
[13]
At some stage members of the Neptune Operation police squad arrived
on the scene in two white motor vehicles. (Indistinct),
on finding
the key to the patrol van
r
left the scene. After he had left, other members of the police of
Gansbaai, Hermanus and Stanford also left the scene. Thereafter
members of Neptune attempted to leave. It is at this stage that the
shooting took place which resulted in the injuries to the
various
plaintiffs and the death of Mr October.
[14]
Two members of Neptune who testified claimed that as they drove from
the scene their vehicles were stoned by members of the
crowd. They
fired warning shots into the ground and into the air to ward off the
attack. Most of the plaintiffs on their part
denied that there was
any stone-throwing. Most appeared to have been fleeing the scene
when shot as the injuries which they sustained
were on the back of
their bodies. The deceased, Mr October, appears to have been shot in
the chest and died about a week later
as a result of the injuries.
Noleen October was shot in the head and face and lost complete sight
in her feft eye.
The
location of the incident
[15]
At the commencement of the proceedings the parties requested that
the Court conduct an inspection
in
foco
to
familiarise itself with the area. The defendant had also very
helpfully taken a set of six aerial photographs of the scene
which
was used during the course of the trial. The area, known at Hopland,
is made up of low-income state houses. Compacter Street
in which the
incident took place runs in the direction of Stanford to Gansbaai.
Compacter Street is a narrow tarred road with
a width of
approximately three metres. The houses in Compacter Street are very
close to one another and each erf is approximately
8.5 metres in
width. The houses were brick built and at the time of the incident
there was no zinc and iron structures attached
to the houses.
[16]
House No. 1543 Compacter Street (Sylvia's house) is directly
opposite house number 1575. The numbering of the houses on Sylvia's
side ascends in the direction of Gansbaai while those on the
opposite side descend in the direction of Stanford. At house number
1544 (next to Sylvia's house) approximately 52 shotgun pellets were
observed on the inside wall of the house near the door and
approximately 120 shotgun marks were observed on the outside wall
near the door. There were also shotgun pellet marks on the
steel
frame of the door. The marks were approximately 1.9 metres from the
ground. There were also shotgun pellets observed on
the front top
right hand side of the wall of house 1544.
[17]
There were street lights in the area near 1547 on the side of
Sylvia's house. There were none on the opposite side. The houses
on
Sylvia's side of the road were at a higher elevation than those on
the opposite side. At the inspection
in
loco
a
number of plaintiffs pointed out to the Court where the police
vehicles had parked and where they had been standing at the time
at
which they were shot and injured.
The
onus
[18]
The defendant accepted that it carried the
onus
on
proving the various defences that it had raised (see
Mbasa
v Felix
1981(3) SA 685 (A) and Hoffmann & Zeffert:
South
African Law of Evidence
(4
th
ed.) pages 501). Mr
Heunis
,
who appeared on behalf of the plaintiffs, submitted that the
defendant also carried the duty to lead evidence first as a result
of its plea. This submission was opposed by Mr
van
der Schyff
on behalf of the defendant. The Court ruled that the plaintiffs in
the circumstances were required to lead evidence first.
The
evidence
[19]
Ms Alida October is the mother of two daughters and a son of which
the deceased, Mr October, was the father. She was not
on the scene
of the incident and had heard from others that the deceased had been
injured in the shooting. A report of a postmortem
which had been
conducted by Dr Isabella Bower on 19 June 2003 was handed in as
evidence, although the pathologist was not called
to testify. It was
accepted by the defendant that the deceased had died as a result of
the shooting incident.
[20]
The postmortem report describes various injuries to the deceased, in
particular, a number of shotgun wounds to the chest
of the deceased.
Shotgun pellets had penetrated the chest of the deceased at "the
left liver lobe and the left kidney and
the heart". There are
also shotgun wounds on the deceased's front upper thigh.
[21]
Mr Gabriel Setlebogo, the second plaintiff, was 15 years old at the
time of the incident and a scholar in Standard 8. He
claims that he
had been visiting a friend at house 1573 Compacter Street where they
had been watching television. They heard
a commotion outside and
went out to the yard what was taking place. He at some stage decided
to cross Compacter Street to go
home. While walking through the
yards between house 1546 and 1547 he was shot in the back of the
head and on his back. He had
seen one stone thrown from the back of
Sylvia's house but maintained that it had been thrown long before
the shooting by Neptune
had taken place. He had heard Ivan's mother
shouting and the crowd had made a lot of noise near the red Mazda
vehicle. It was
put to him under cross-examination that most of the
stones had come from the direction of the left hand side of
Compacter Street
rn the area near house 1573. He denied it.
[22]
Noleen October, the third plaintiff, was 14 years old at the time of
the incident. She testified that on the night in question
she was in
the company of Petra Masias and had been sent to buy a cooldrink at
the house of Sylvia. She had been told by Sylvia
to wait for the
cooldrink. She could not recall anything further with regard to the
incident or as to how she sustained the injuries.
She testified that
she still felt three pellets under her skull and had completely lost
sight in her left eye. At the time of
the incident she was a scholar
in Standard 4.
[23]
A report by Dr Chris Liaart who had examined Noleen on 17 March 2004
was handed in as an Exhibit. Dr Liaart was also not
called as a
witness and the contents of his report was not disputed by the
defendant. The report records:
"Three
intra-cranial pellets, diffused brain swelling
and
effacement of basal systems". The report also records pellet
wounds to the skull and the head.
[24]
Petra Masias, a cousin of Noleen October, confirmed that she had
accompanied her to buy a cooldrink at Sylvia's house. At
the time of
the incident she was also 14 years old. She also confirmed that
Sylvia had told them to wait outside for the cooldrink.
She saw a
red car being chased by a police van which pulled up into the
driveway of Sylvia. She saw Sylvia's brother, Ivan, get
out of the
vehicle. She, together with Noleen and a third person, climbed on
and stood on a fridge which had laid on its side
next to the wall of
the house next door to that of Sylvia's. There was a lot of people
at that stage in the yard of Sylvia and
they did not want to be part
of the crowd. They did however want to see what was going on. She
saw people throwing stones at
the police vehicle and had heard the
police calling for reinforcements over the police radio. Other
police arrived.
[25]
There were many people at that stage on the scene. She saw a white
motor vehicle arrive and Stanford police subsequently
leave the
scene. She thereafter saw people from across the road falling down
where she heard shots being fired. Noleen fell down
from the fridge.
She initially thought that Noleen was taking cover and fell over on
top of her. She then noticed that Noleen
was crying and that she was
full of blood. Her face was also swollen. She maintained that
neither she nor Noleen threw any stones
at the police or at their
vehicles.
[26]
Ms Trisia Elisa Constance, the fourth plaintiff, testified that she
was in the company of her friend, Nicolene Arendse, the
fifth
plaintiff on the night of the incident. They had been in
conversation in front of Arendse's house in Compacter Street when
they noticed that something appeared to be happening further up the
street. Out of curiousity both she and Arendse walked up
the road to
see what was taking place. They found a large number of people in
the area of Sylvia's house. She and Arendse stood
in the yard of a
family member's house, number 1573 Compacter Street, across the road
from Sylvia's house.
[27]
There was a number of people in front of them and as they were not
able to see much they moved closer towards the pavement.
She saw two
white cars with guns sticking out of the windows slowly drive down
the street. She decided to leave the scene at
this stage. As they
walked past, a blue Mazda vehicle which was parked in front of the
house 1573, the occupants of the white
car began shooting. She and
Arendse fell to the ground and crawled behind the blue vehicle. She
then noticed that Arendse was
bleeding and felt that she had also
been injured. She was shot with rubber bullets and sustained
injuries to her left arm and
left side. The bullets were
subsequently removed through surgery.
[28]
She claimed that they had arrived on the scene when everything was
almost over. She denied that there was any stone-throwing
by the
crowd.
\n
cross-examination
she conceded that she had thought that the crowd was "onsteid"
and that they appeared to be angry.
She, Arendse and others were
taken by bakkie to the police station where they were subsequently
taken by ambulance to the Hermanus
hospital for treatment. She also
denied that she and Arendse had stoned the police. She also
maintained that it was out of sheer
curiousrty that she was on the
scene.
[29]
Nicolene Arendse, the fifth plaintiff, confirmed that she was in the
company of Constance and that they went to the scene
out of
curiousity. She described the lighting as very poor. She saw the
patrol vehicle parked in Sylvia's yard and also saw the
white motor
vehicle come down the road just as she and Constance had walked past
a blue Mazda motor vehicle when leaving the
scene.
[30]
At this stage the police started shooting. She was shot on the left
backside. A medical report which was handed in, indicated
approximately 80 birdshot pellets on her backside. Photographs of
the injuries to her backside was also handed in as evidence
which
depicted the size and extent of the wound. She had made a statement
to the police in which she had stated that she had
seen the police
being stoned. In cross-examination she denied that she had said so
to the police and denied that she had read
her statement before
signing it or that the policeman, Inspector du Toit who had taken it
down, had read it to her prior to it
being commissioned.
[31]
Mr Jonathan Hendricks, the seventh plaintiff, testified that on the
night of the incident he had been drinking at a shebeen
in the
company of Mr January, the sixth plaintiff. The shebeen fs situated
in a street next to Compacter Street. After having
drunk a number of
beers he, together with January, left and took a short-cut through
the yard between houses 1545 and 1546 Compacter
Street in order to
get to their house which was situated in Dreyer Street, on the other
side of Compacter Street.
[32]
When in Compacter Street he saw the police vehicles and sard to
January that he anticipated trouble and that they should
get away as
soon as possible. As they walked past the blue Mazda vehicle he
heard shots being fired and felt a sudden burning
sensation. At that
stage he was on the pavement in front of the house 1573. He was shot
on his left thigh from behind. He had
seen guns sticking out of the
window of the white vehicles driven by the Neptune squad. After
being shot and while fleeing the
scene, he saw the deceased Mr
October lying near house 1573. He thereafter went to seek assistance
for January who had also been
shot.
[33]
In a statement to the police after the incident he stated that he
had seen half a brick being thrown at the police. In his
testimony
he denied having said so to the police. He also denied that the
statement had been read out to him by the police officer
who wrote
it down or that he had been given the opportunity of reading it. In
the statement he afso stated that he did not want
an investigation
into the shooting as he had been injured as a result of his own
curiousity.
[34]
Mr Daniel January, the sixth plaintiff, confirmed the version of
Hendricks, the seventh plaintiff, in whose company he was.
He was
shot in his right thigh. He denied that there were any warning shots
fired by the police. He had also made a statement
to the police in
which he stated that the crowd was unruly and that people had thrown
stones. He denied having said so or that
he was given the chance to
read his statement or that it was read back to him by the policeman
who had written it down.
[35]
Mr Henry Jerome Cornelius Steenberg, the eighth plaintiff, testified
that on the night in question he had been drinking at
the house of a
police reservist, Hendricks. Hendricks had been called out to the
scene at Sylvia's house. He and his brother,
after finishing a few
more beers, walked over to the scene where they stood directly in
front of 1544 Compacter Street. At the
scene the reservist Hendricks
walked across to him and warned him that there was going to be
trouble and that he should leave.
Steenberg claimed that as he and
his brother were about to walk away two white cars came down the
road and the occupants (police)
shot at the crowd. He immediately
began running away and was shot on the left flank of his back and
side. He had also made a
statement to the police approximately a
week after the incident in which he stated that the crowd was unruly
and that he saw
them throwing stones. He denied that he himself had
thrown any stones and also maintained that he was on the scene out
of curiousity.
[36]
Mr Dennis Benjamin, the ninth plaintiff, testified that he was in
the company of a friend and that they had gone to a shebeen
where
they had bought a crate of beer. While walking back they saw the
blue lights of a police van which was chasing a red Mazda
vehicle
around the streets of the township. He also saw that there was a
half-naked person holding onto the bonnet of the vehicle
and
screaming as it was being pursued by the police. He saw the vehicle
come to a standstill at 1543 (Sylvia's house) and the
attempt by
Chachabana{?) to arrest the driver Bastiaan.
[37]
Bastiaan had grabbed the handcuffs from Chachabana and threw it
away. He had also seen the reservist Mengel disappear into
the
crowd. At this stage he stood right across the house 1543 and heard
Chachabana radio for reinforcements. He saw police officer
Du Toit
arrive at the scene. He also saw a stone being thrown at
Chachabana's vehicle from behind Sylvia's house,
[38]
In response Fourie fired a shot into the air. While standing there
he heard from a friend who was also part of the crowd
that Mengel
had been given a "lekker klap of twee". He noticed a
second stone coming from the direction of Sylvia's
house and Fourie
once again shot into the air. He also saw police reservist Hendricks
arrive at the scene. He had earlier seen
reservist Hendricks
drinking at his (Hendricks') house. He saw a third stone being flung
from the direction of Sylvia's house
at the police vehicle and
Fourie fired a third warning shot into the air. He testified that he
heard members of the crowd laughing
at and teasing the Neptune
police. As the Neptune squad left he bent forward to pick up the
crate of beer which was on the ground
in front of him. While doing
so he was shot on the right hand. He subsequently received medical
attention at the Hermanus hospital.
He denied that the crowd had
toyi-toyed or that they had been aggressive. He also denied that
there was any other stone throwing
other than the three stones he
had seen flung. It was also put to him under cross-examination that
most of the stones were thrown
from the vicinity of the yard at
1573. Benjamin, like Setlebogo, disputed this submission.
[39]
On behalf of the defendant, Inspector Charl Coetzee who was
stationed at the Hermanus police station, testified that he had
received a radio report about the incident while out on patrol duty
with Inspector Rust. It took them approximately 20 minutes
to get to
the scene where they found an unruly crowd that was singing and
shouting. He parked the patrol vehicle on the Gansbaai
side of
Sylvia's house, approximately three houses away, and he and Rust
walked down to where Chachabana was standing in the
yard of Sylvia's
house. There were not stones thrown while he was present at the
scene.
[40]
Approximately 20 minutes later when Chachabana left, he and Rust
returned to their vehicle to leave. As soon as they got
into their
vehicle the crowd began stoning the vehicle. The vehicle at that
stage got stuck in ioose sand. He leaned out of the
window and shot
three warning shots into the ground. This caused the crowd to
disperse and they drove away. He did not think
it necessary to shoot
directly into the crowd, more especially since he had a 3mm handgun.
(41]
While on the scene they had been approached by a reservist, August,
of the Neptune police squad who had warned them that
the police had
shouted in Xhosa that as soon as the police drove away from the
scene their vehicles would be stoned. When they
drove away there was
no crowd in front of them and they were able to drive away without
any hindrance. He maintained that when
they had arrived at the scene
everything was under control and that there was no stoning at that
stage. He claimed that there
was no direct threat to their lives
on the scene and that no further reinforcements were called in as
there was no perception
that any of the officers being in danger.
The only damage to his vehicle was a mark on the windscreen and that
he did not report
any other damage at the police station. He did not
see the incident in which the Neptune squad fired at the crowd or
the stoning
of Neptune.
[42]
Chachabana described the background of the incident. He testified
that when he realised that the keys of the motor vehicle
had been
removed the crowd had already become unruly. They began stoning him.
He had to seek cover behind the patrol vehicle
and he believed "I
was going to die on that day". The crowd had also toyi-toyed He
requested one of the elder persons
in the crowd to calm them down
but they would not listen to him and accused him of being a
'sell-out". At some stage he
drew his pistol and fired a
warning shot into the air. The crowd immediately stopped but
thereafter continued with their stoning.
The light was not very good
and stones had come from the darker areas.
[43]
Fourie and Du Toit were the first to arrive in response to his
request for reinforcements. Shortly before reservist
Hendricks
returned from the police station with the spare key he found the
missing key laying in the sand near the patrol van.
The Neptune
squad was also on the scene at that stage. He reversed his vehicle
out of Sylvia's yard and drove off in the direction
of Gansbaai. As
he drove off the crowd banged on the patrol vehicle with their hands
and stoned it. He testified that there was
lots of damage to the
patrol vehicle but under cross-examination conceded that none of it
had been recorded in the records of
the police station.
[44]
He described the curiousity of the crowd like being drawn to a
bioscope scene. He maintained that it was not necessary for
him to
fire any further shots, despite the behaviour of the crowd. He
explained that when the Neptune squad arrived, Captain
Stroebel, the
Neptune commander, was the most senior officer of the scene and
therefore in charge of all of the police officers.
Stroebel came up
to him and informed him that as soon as he obtained the keys for the
vehicle he should immediately leave the
scene. As he left he did not
hear any shooting but only the sound of stones and the banging on
the patrol van. He did not see
the shooting by Neptune and neither
did he hear any shots being fired by them.
[45]
Constable Rtccardo Mengel was on patrol duty with Chachabane. He was
armed with a 9mm pistol and confirmed Chachabane's account
with
regard to the background of the incident. He claimed that when they
pulled up behind the red Mazda at 1543 and as they got
out, the
crowd was unruly and began stoning them. He was surrounded by about
20 people and was pushed down Compacter Street.
He had his pistol in
his hand but he did not find it necessary to use it. The crowd
shouted threats at him and were very aggressive.
Except for a slight
injury to his finger he returned unharmed to the scene where
Chachabane had remained. Upon Chachabane finding
the key they (eft
the scene and as they drove off there were stones thrown at the
patrol vehicles from all sides. He did not
hear any shooting.
[46]
Under cross-examination he maintained that it was not necessary for
him to have fired any warning shots on the scene or while
driving
off. He agreed with Chachabane's description of the crowd's
curiousity as looking at "a bioscope". He claimed
that not
everybody in the crowd had thrown stones.
[47]
Inspector Johannes Jacobus du Toit was stationed at the Stanford
police station. He was at home when he received a
call to come
out to the scene. He picked Inspector Fourie up at this house on the
way. They were in private clothes and only
he was armed with a Z88
pistol. At the scene they parked near house 1546 in Compacter Street
and walked up to Sylvia's house
where Chachabane was standing. The
crowd was unruly and Chachabane tried to calm them but to no avail.
Stones were thrown at
them and they sought cover behind the patrol
van. When Chachabane eventually found the key and drove off, the
crowd banged on
the vehicle and stoned it. He and Fourie waited
until Chachabane had safely left the scene whereafter they walked
down Compacter
Street to the vehicle. They got in, made a U-turn and
drove off in the direction of Stanford. There was no threat to them
as
they walked to their vehicle, nor as they drove away and, in
particular, no stones were thrown at them. As they drove away they
heard shooting from the Neptune vehicles, they did not turn back to
investigate.
[48]
At the police station he was responsible for taking down the
statements from a number of the plaintiffs. He had made photocopies
of the statements and commissioned some of them in the absence of
the deponents. He claimed that he did so because of the pressure
he
had worked under and the urgency of submitting copies of the
statements to his headquarters. He maintained, however, that
he had
read the statements back to each of the deponents and that they had
confirmed the versions which were set out in the statements.
He
conceded though that one of the deponents had not initialled any of
the corrections that he had made on the statements. He
claimed that
a number of the people on the scene were drunk and that he knew that
the police were not welcome in the area when
people were in such a
state. He claimed that there was no reason for him to use his gun or
to fire a warning shot. There was
no damage to the Mazda police
vehicle in which he and Fourie had travelled in.
[49]
He contradicted his written statement in which he stated that he had
seen Neptune shooting at the crowd. He ascribed the
contradiction to
his loss of memory as the incident had occurred almost four years
since the trial. He recalled that when he
and Fourie left, the road
was not blocked and that they could leave the scene without any
hindrance.
;50]
Inspector Widerow{?) Colin Fourie testified that when he and Du Toit
stood with Chachabane at the scene the crowd was aggressive
and
threw stones at them. They took cover behind the van but it was not
necessary for any of the police to use their firearms
on the crowds.
The stones had come from the direction of the Stanford side of
Compacter Street. He confirmed that after Chachabane
had "safefy
left the scene" he and Du Toit had walked to their vehicles and
drove off without any hindrance. They did
not see the shooting by
Neptune but had heard shots from some distance from the scene. He
was aware of the threats that the crowd
had made and that they would
stone the police upon leaving. He confirmed that some of the crowd
appeared to be curious.
[51]
He also recalls seeing the deceased in an injured state later at the
police station. Both he and Du Toit claim that although
they arrived
first on the scene, they had not considered removing Chachabane from
the scene as they feared that the crowd would
torch the patrol van
if it was left behind. He conceded though that they coufd very well
have left the scene at that stage with
Chachabane. He denied that he
had fired three warning shots into the air, as claimed by Benjamin.
[52]
Captain Petrus Johannes Stroebel was in charge of the Neptune
operation squad. Neptune had been set up as a special operation
task
force to deal with the fight against poaching of perlemoen and other
fish on the coastal areas. On the evening of 16 March
he was at the
operations base in Hermanus when he received a call from the
Hermanus police station to assist at the scene in
Stanford. He had
nine members under his command, five of whom were on duty and four
were off duty with him at the base. The four
off-duty members
accompanied him in a Volkswagen Golf whilst the five on-duty members
rode in a white Mazda vehicle.
[53]
He testified that they were all armed with shotguns and some in the
Mazda had 9mm handguns. They reported in at the Stanford
police
station at approximately 22h00 where they were informed about the
keys which had been removed from the patrol vehicle
and the stoning
by the crowd. They were directed to the scene at 1543 where they
parked directly in front of the houses 1575
and 1576. There was
approximately 150 people at that stage on the scene, which
subsequently grew to about 300 people. At the
scene he spoke to
Chachabane who informed him that he was waiting for the spare key
for the patrol vehicle. The crowd began toyi-toying
and he returned
to his vehicle.
[54]
Reservist August, one of the Neptune squad, came up to him and
informed him that he had heard the crowd in Xhosa saying that
they
would stone the police as soon as they drove away from the scene. He
had also heard the crowd shout abuse at the Neptune
squad and
demanded that they leave the scene. He was scared for his life as he
was not familiar with the people nor the area.
As Chachabane
reversed out of the driveway and drove off, the crowd began stoning
the patrol vehicfe. He fired one shot with
rubber bullets into the
ground as a warning. He aimed in the direction of house 1543. As a
result of the shot the crowd briefly
stopped throwing stones and
dispersed. As Chachabane drove away the crowd continued stoning the
patrol van. He fired another
shot of rubber bullets into the ground
in the direction of Gansbaai. The crowd again stopped stoning. He
got into his vehicle
and drove off in the direction of Stanford.
[55]
At this stage his vehicle was stoned from all directions. He
immediately stopped the vehicle and through the window fired
two
further warning shots of rubber bullets, but this time directed into
the air. At this stage the rest of the Neptune squad
also began
firing. As he fired he immediately drove off in the direction of the
Stanford police station. He emphatically denied
that he had fired
with the intention of killing or injuring anybody and believed that
his actions in firing the warning shots
were lawful in the
circumstances.
[56]
Under cross-examination he denied that he had ordered any of the
other Neptune members to fire at the crowd or to fire any
warning
shots. He said that he had left it to their individual discretion as
to the use of their weapons. He also claimed that
it would not have
been appropriate for him to have given any instructions to them
about when and how to use their weapons. He
conceded that the
plaintiffs who were injured in the back could have been shot "by
accident" as they would have been
fleeing. He maintained that
none of the shots he fired was directed at the crowd and that he was
therefore not responsible for
any of the injuries to any of the
plaintiffs. He also claimed that the damage to the Neptune vehicle
was insignificant and therefore
did not warrant it being recorded in
the records of the police station. He confirmed the contents of the
occurrence book at the
Stanford police station that Officer Friesler
had fired three shots of rubber bullets and two shots of birdshot
(donshael).
[57]
Officer August had fired five rubber bullets and five birdshot
(donshael). Officer du Toit (of the Neptune squad) had fired
three
rubber bullets and three birdshots (donshael). Officer Le Fleur had
fired six rubber bullets, Officer Biggs fired five
rubber bullets,
Officer Julies fired six rubber bulfets. Le Fleur, Biggs and he were
in the same vehicle. (I have referred to
the "donshael"
simply as birdshot as no description of the cafibre of the shotgun
ammunition used was given in evidence).
[58]
Stroebel maintained throughout his testimony that it was not
necessary for him to have shot directly at the crowd and that
warning shots were sufficient and in fact had the desired effect of
dispersing the crowd. He also claimed that no stones were
thrown at
his vehicle from the front and that it was clear to drive away. He
claimed, however, that although he could have driven
away, he
stopped and fired because of the stoning from all the other sides.
[59]
Reservist Liesel August was a member of the Neptune squad which was
on patrol duty with four others. They had been informed
by
Stroebel of the trouble in Stanford and immediately went to the
operations base in Hermanus. There they armed themselves with
shotguns and with birdshot and donshael and rubber bullets. When
they arrived at the scene in Compacter Street they found that
the
crowd was unruly and sang in Xhosa "panzi polisie ons gaan
julle met klippe bestook". He claimed that they, the
Neptune
squad, were instructed by Stroebel that if the crowd threw stones at
them when they left they should fire warning shots
into the ground
or into the air "ons moet onself beskerm maar ons moet op die
grond skiet of in die lug net om te kan uitkom
0
.
[60]
While on the scene and prior to Chachabane leaving, he claimed that
the crowd was aggressive and had thrown stones at the
police.
However, he did not think it necessary at that stage to fire any
shots at the crowd. When Chachabane left the crowd stoned
his
vehicle. Stroebel was the first to fire a warning shot into the air
in the direction of Gansbaai. He claimed that Stroebel
had also
fired a second warning shot into the air and again in the direction
of Gansbaai. He claimed "op daai stadium het
ons nog nie iets
wonders gedoen nie" and as they pulled way stones rained from
all sides on them. He shot five rubber bullets
and five birdshot
into the air and ground. He shot in the direction of Gansbaai. He
was seated at the left rear hand side of
the vehicle which was
behind that of StroebeE's vehicle. The crowd did not disperse as a
result of his first shot he therefore
fired the remaining five
shotgun bullets. He claimed that the other Neptune members in the
vehicle also fired shots into the
ground and into the air.
[61]
Under cross-examination he claimed that Stroebel did not see the
stoning while they were on the scene prior to Chachabane
leaving
because of StroebeTs poor eyesight. He was not sure in what order he
had fired the rubber bullets and the birdshot. He
appeared to have
done so interchangeably. He denied emphatically that he had shot
directly into the crowd and maintained that
it was not necessary for
him to have done so. He claimed that if somebody shot directly at
the crowd it would have been in disobedience
of Stroebel's
instructions to fire only warning shots into the ground and the air.
He claimed that the plaintiffs had falsely
made claims that they had
been shot and suggested that they had incurred the injuries by
running into walls and that Mrs Arendse,
the fifth plaintiff, could
have tripped and fallen onto a stone which caused the injury to her
backside. He explained that
Neptune was not very popular in the
area because of their methods of operation in containing poaching.
The
defences of necessity and self-defence
[62]
The defendant is required to discharge the
onus
of
proving on a balance of probability that members of Neptune were
justified in causing the death of Mr October and the injuries
to all
of the other plaintiffs. The defendant relied on the defence of
necessity and the alternative, that of self-defence. These
two
grounds of justification, although closely related, differ in that
self-defence always stems from and is directed at an unlawful
(human) attack, while necessity on the other hand stems from either
an unlawful human attack or from chance circumstances such
as acts
of nature (Footnote 1 Snyman:
Criminal
Law
(5
th
ed.) page 91).
[63]
Self-defence is defined as:
"Noodweer
is aanwesig wanneer die dader horn op redelike wyse teen iemand
anders se onregmatige of dreigende, onregmatige
handeling rig, om sy
eie of Yi ander geregverdige regserkende belange te beskerm."
(Footnote
2 Neethlinq:
PersoonlikhesdsreQ
117 quoted in (onduidelik)
Neethling.
Fotgieter en Visser
.
bladsy 38...:
"The
principle that right does not have to yield to wrong has been a
touchstone of civilised legal systems through the
ages. The
victim of an unlawful attack has been entitled to defend his
person or property by virtue of the rule of law
which has existed in
all familiar legal systems for many centuries". (
Ntsomi
v Minister of Law & Order
1990(1)
SA 512 (C) at 526) The Court in that matter also surveyed a number
of decisions and authorities on the law of self-defence
and stated
as follows:
"In
terms of these authorities the requirements to be satisfied before a
plea of self-defence will be upheld may be summarised
as follows:
There
must have been an unlawful attack or threatened attack and the
victim must have had reasonable grounds for believing that
he was in
physical danger. The means of defence must have been commensurate
with the danger and the means of defence must not
have been adopted
when the threatened injury could have been avoided in some or other
reasonable way".
[64]
(Indistinct):
Law
of Delict
(7
th
ed.) at 74 puts it as follows:
"The
defendant must show that there was an action prescience of imminent
danger and a reasonably apparent necessity for taking
such actions
as was taken.
Selman
(op
cit)
it
is lawful for any person to use a reasonable degree of force for the
protection of himself or any other person against any
unlawful use
of force. Force is not reasonable if it is either:
1.
Unnecessary,
that is greater than is requisite
for the purpose, or
2.
Disproportionate
to the evil to be prevented".
(Footnote
Ntsomi
v Minister of Law and Order
1990(1)
SA 512 (C) at 526.
[65]
The defendant must prove on a balance of probability that "die
noodweerhandeling aan die ander kant moet
eerstens teen die
aanvaller self gerig wees." (Footnote Nee th ling:
Persoonlikheidsreg
bl.
117-118).
Snvman:
Criminal
Law
(5
th
ed.) page 91 refers to this requirement as:
"It
must be directed against the attacker. If Y attacks X, X cannot
direct his act in private defence against Z. However,
an attack by X
may, in certain circumstances, be justified by necessity".
[66]
Mr
Heunis
submitted that the defendant had failed in evidence to identify any
of the plaintiffs or the deceased as having unlawfully attacked
the
police and as such the defendant could not refy on self-defence as a
justification for the shooting of the plaintiffs and
the deceased. A
further requisite for self-defence:
"Die
handeling moet noodsaaklik wees om die aanval af te weer."
places the
onus
on
the defendant to prove that the means used to avert the attack must
have been commensurate with the force used in the attack.
This is
often referred to as the test of proportionality. In
Ntamo
v Minister of Safety & Security
2001(1) SA 830 (TK) at 839,
Matlanga,
AJP
considered the proportionality of use of Eethal force by the police
in circumstances of that case. He referred to
"
in
re
v
Molifi
1940 AD 2002
and 2004 where
Watermeyer,
JA
had the following to say:
"Homicide
in self-defence is only excusable under certain strictly limited
conditions. The means of defence must be commensurate
with the
danger. Dangerous means the defence must not be adopted where the
threatened injury can be avoided in some other reasonable
way".
Also see
R
v Atwood
1946 AD 331
and 340.
[67]
In the matter of
Ntamo
,
the police had shot and killed a person whom they believed had posed
a life-threatening situation to them by the use of a firearm.
The
Court held that the police had to justify their resorting to Eethal
force. In this regard examples of factors that may be
relevant are:
"(i)
The
imminence of danger;
(ii)
how threatening the danger is to life or limb;
(hi)
the nature of the instrument, if any, the attackers use in waging
the unlawful attack;
(iv)
the
proximity of the attacker and the attacked;
(v)
the
mobility of the attacker and the ceEerity of his/her movement;
(vi)
how
easy or difficult it would be to apply force to a less delicate part
of the body.
The
particular facts of each case will determine which of these and
other factors are relevant".
[68]
The Court, more importantly, have to make the assessment of the
relevant factors on the basis of the new constitutional order
where
the right to life, to human dignity and bodily integrity is
enshrined. In
Ex
parferMinister
of Safety & Security & Others
in
re
S
v Walters & Another
2002(7) BCLR 663 (CC),
Kriegler,
J
states
that:
The
Constitution commands the State and all its organs to respect,
promote, protect and fulfil all the rights protected by the
Sill of
Rights".
Langa,
J
in the matter of
S
v Mokoniana & Seven Others
1995(3)
SA 391 (CC) 138 at 448h-449a states as follows: "The emphasis I
place on the right to life is, in part, influenced
by the recent
experience of our people in this country. The history of past
decades has been such that the value of life and
human dignity has
been demeaned. Political, social and other factors create a climate
of violence resulting in a culture of retaliation
and vengeance, in
the process respect for life and the inherent dignity of every
person became the main casualties. The State
has been part of this
disintegration not only because of its role in the conflicts of the
past, but also be retaining punishments
which are not (indistinct)
to a high regard for the dignity of the person and the value of
human life".
[69]
In
Mokoniana
.
Chaskalson,
P
at 448H-449A makes the following comments with regard to a defence
of self-defence:
"Self-defence
is recognised by all legal systems. Where a choice has to be made
between the lives of two or more people,
the life of the innocent is
given preference over the life of the aggressor, this is consistent
with section 33(1). To deny the
innocent person the right to act in
self-defence would deny to the individual his or her rights to life.
The same is true where
lethal force is used against the
hostage-taker who threatens the life of the hostage. It is
permissible to kill a hostage-taker
to safe the life of the innocent
hostage but only if the hostage is in real danger.
The
law solves problems such as these through the doctrine of
proportionality, balancing the rights of the aggressor against the
rights of the victim and favouring the life or lives of innocents
over the lives of the guilty. But there are strict limits to
the
taking of life, even in circumstances that have been described and
the law insists upon these limits being adhered to".
Chaskalson.
P
further states at 449H:
"Self-defence
is treated in our law as a species of private defence. It is not
necessary for the purposes of this judgment
to determine the limits
of private defence. Until now our law has allowed killings in
defence of life but has also allowed killings
in defence of property
or other legitimate interested circumstances where it is reasonable
and necessary to do so".
[70]
In
Ex
parte.
Minister
of Justice
in
re
S
v Van Wvk
1967(1) SA 4 at 88:
"Whether
this is consistent with the values of our new legal order is not a
matter which arises for consideration in the
present case. What is
material is that the law applies a proportionality
test weighing the interest protected against
the interest of the
wrongdoer. The interests must now be weighed in the light of
the Constitution".
Matlanga,
AJP
also referred to the decisions of the European Court of Human Rights
in
McCann
& Others v The United Kingdom
19969(21) EHRR 97 in which the Court dealt with the interpretation
of section 2 of the European Convention on Human Rights and
in the
matter of
Andronico
& Another v Cyprus
1998(25) EHRR 491 at 545.
[71
]
Matlanga,
AJP
found that the police had exercised disproportionate force to that
required in the circumstances. The decision was upheld by
the
Supreme Court of Appeal on the basis that the police had failed to
discharge the
onus
of
proving that the fatal shooting was justified in the circumstances.
(Footnote 9
Minister
of Safety & Security
(SCA) 389/2001)
[72]
The authors Neethling Potgieter and Visser define the
defence
of necessity as:
"Nood
toestand is aanwesig wanneer die dader deur oormag in so 'n posisie
geplaas word dat hy sy geregverdige belange of
die van ander slegs
kan beveilig deur 'n redelike aantasting van die reg of die goed van
'n andere." Dit is Deliktereg,
b 93-94.
The
following guidelines are given with regard to the
determination
as to whether a situation of necessity
exists
or not:
The
question is whether an emergency exists in reality is either caused
through human or animal or other natural cause; and
whether
an emergency exists must be objectively determined.
Kriegler,
J
in
Chettv
v Minister of Police
1 976(2} SA 490
(N)
in reference to necessity states:
"if,
in the performance of his duty, the police inflict harm, even upon a
person who is not himself guilty of any unlawful
conduct, then they
are not answerable to that person for any damage suffered by him in
consequence of the action taken subject
only to the limitations
stated by
Rumpff,
J
(as he then was) in the
Mobe
case,
supra,
at
page 93: "Wanneer die polisie hulle pligte vervul van die
voorkoming van misdaad mag hulle nie inbreek maak op die regte
van
die individueel behalwe vir dit sover dit uitdruklik of by afleiding
ekstatoetenngmagting blyk, tensy dit nodig is weens
die aard en erns
van die verwagte misdaad en dan alleen tot so n mate as wat redelik
is in die omstandighede. Ek wil uitdruklik
herhaal dat die
geldigheid van eerder inbreuk van regte deur polisie indien dit nie
deur 'n statut§re gemagtig word nie
sal afhang van die feit en
dat die Hof met die grootste reg die regte van die individueel teen
willekeurige handeling van die
polisie sal beskerm."
[73]
The test to determine the reasonableness of the actions of the
police must be objectively determined. It is therefore appropriate
for this Court to be reminded of the
dicta
of
Van
Winsen, J
in
Intanjana
v Foster & Minister of Justice
1950(4) SA 398 at 406 AD:
"The
very objectivity of the test however demands that when the Court
comes to decide whether there was a necessity to act
in self-defence
it must place itself in the position of the person claiming to have
acted in self-defence and consider all the
surrounding factors
operating on his mind and at the time he acted. The Court must be
careful to avoid the role of an armchair
critic, wise after the
event, weighing the matter in the secluded security of the
courtroom.
Furthermore,
in judging the matter it must be ever-present in the mind of the
judge that at any rate in the particular circumstances
of the case
the person claiming to act in self-defence does so in an
emergency the creation of which is the work of the
person unlawfully
attacking. The self-defender is accordingly entitled to have
extended to him that degree of indulgence usually
accorded by the
law when judging the conduct of a person acting in the situation of
imminent peril". Men faced in moments
of crisis with the
choice of alternatives are not to be judged as if they had both the
time and the opportunity to weigh the
pros and the cons
per
Innes,
JA
in
Union
Government v Berg
1940 AD 274
at 286.
[74]
In a recent appeal in this Division,
Pietersen
v Minister of Safety & Security
2007{2) SA 1997 (C) the Court was rather interestingly faced with a
situation in which the police also raised a defence of necessity
for
the shooting of the appellant's minor child. Members of Neptune were
involved in a shootout with a crowd that was resistant
to the
confiscation of illegally harvested abalone which had been loaded
onto the back of a stationary bakkie in Gansbaai. It
was common
cause that the crowd of approximately 200 people were hostile to the
police and that some members of the crowd had
thrown stones at the
police. The police also claimed that some members of the crowd had
fired shots at them.
[75]
The Court accepted the version of the police and found that the
police were entitled to resort to the use of live ammunition
to
protect their lives. The appellant's son, who was part of the crowd,
was injured. The Court found that the actions of the
police was
reasonable and justified insofar as a sudden decision had to be made
as to how to respond to the shooting from members
of the crowd by
returning fire.
The
defence of consent
[76]
The defendant in its plea raised as their third alternative the
defence of consent. Mr
van
der Schvff
,
however, presented little or no argument in support of this defence.
The defence, which is also known as "volenti non
fit iniuria"
is defined by McKarren:
Law
of Delict
(4 ed.) at 95-96 in a footnote
Lampert
v Heever & Another
1955(2)
AD at 512:
"No
man can complain of an act which he has expressly or impliedly
assented to. This principle, which was well known to the
Roman and
Roman-Dutch law, is commonly expressed by the maxim
volenti
non fit iniuria.
Literally
interpreted, the maxim is applicable only to cases where a person
has consented to suffer something which would otherwise
be an
intentional wrong, e.g. consent to undergo a medical operation or
consent to the publication of a defamatory statement.
But maxim is
used in the wider sense and is applied to cases where a person has
consented to run the risk of unintentional harm
which would
otherwise be actionable or attributable to the negligence of the
person who caused it".
[77]
Fagan,
JA
in
Lampert
v Heever & Another
1955(2) AD 507 at 512 states:
"One
of the authorities relied on by the author in the passage referred
to above (McKerran & Salmond (9
th
ed.) section 8 page 37 who says this maxim
volenti
non fit iniuria
has
a double application. It applies in the first place to intention
or acts which would otherwise be tortuous and in the
second place,
to consent to run the risk of accidental harm which would otherwise
be actionable as due to negligence of him who
caused it".
In
CJN
Warren v Gillow Ltd v Sherbourne
f?)
1904 TS 340
at
344
r
Innes.
CJ
states:
"It
must be clearly shown that the risk of injury was known but it was
realised and it was voluntarily undertaken. Knowledge,
appreciation
and consent, these are the essential elements but knowledge does not
invariably imply appreciation and both together
are not necessarily
equivalent to consent".
Assessment
of the evidence
[78]
Mr
van
der Schyff
in his written argument submitted with regard to the defences of
self-defence and necessity:
"A
prior aggressor is a
sine
qua non
for
the raising of the abovementioned defence. However, in view of the
fact that the plaintiffs deny any form of aggression at
all towards
the SAPS the versions are mutually exclusive". I must, however,
consider whether the defendant, on a balance
of probabilities, has
proved the various grounds of justification it has raised. The
quality of the evidence submitted both by
the plaintiffs' and the
defendant's witnesses, in particular with regard to the stoning and
the intensity thereof during the
incident, was not altogether
satisfactory. On the other hand, it was not disputed that any of
plaintiffs and the deceased were
injured in the incident and the
Court accepts that the injuries sustained by them and the death of
Mr October was caused directly
as a result of the shooting, in
particular by the Neptune squad.
[79]
Further, none of the defendant's witnesses identified any of the
plaintiffs, incfuding the deceased, as having thrown stones
at the
police. Mr
van
der Schyff
in cross-examination of Mr Benjamin did, however, suggest to him
that the reason why he was shot on his hand was that he may
have
been picking up a stone to throw at the police. However, this
contention was not supported by any of the policemen who testified
on behalf of the defendant and as such lacks any cogency.
[80]
Both Mr
Heunis
and Mr
van
der Schyff
in argument submitted that the incident should be seen in two
phases. The first phase ends when the policemen from Stanford,
Gansbaai and Hermanus leave the scene and the second phase is the
stoning of the Neptune police as they leave the scene and the
shooting of the plaintiffs and the deceased. Inasmuch as the two
phases may be distinguished in terms of the responsibility of
the
different contingents, the two phases are nonetheless finked by the
behaviour and the conduct of the crowd, both at the time
of the
incident which commenced with the arrival of Chachabane and the
subsequent arrival of the Neptune squad and the shooting
by them.
[81]
Although most of the plaintiffs eschewed any knowledge about the
aggressive behaviour of the crowd or that they were loud
in
taunting, I am satisfied on a totality of all the evidence that the
version of the various police witnesses in this regard
is more
probable as they, with a greater measure of consistency and
plausibility, described the behaviour of the crowd. It appears
though that some members of the police witnesses may have
exaggerated the behaviour of the crowd but that does not detract
from their overall description of the conduct of the crowd. I am
mindful that Coetzee, Du Toit, Fourie and Stroebel did not
understand
Xhosa which was used by part of the crowd when singing
and toyi-toying and merely assumed that they were aggressive by
virtue
of such behaviour.
[82]
Most of the plaintiffs who were on the scene, except for Benjamin,
Setlebogo and the witness Petrus Masias (the cousin of
Noleen
October) maintained that there was no stone-throwing at all despite
some of them having deposed to incidents of stoning
in their
statements to the police. Benjamin in particular was an impressive
witness who was both articulate and appeared to have
had a clear
recollection of the overall incident than most of the witnesses.
MasEas for her part had no direct interest in the
outcome of the
proceedings save for supporting her cousin Noleen.
[83]
I am unable to rely on the veracity of what is contained in the
statements by the various plaintiffs to the police given
the
circumstances under which it was taken and commissioned. The
plaintiffs concerned went to the police station after being
shot and
in need of medicaf care and not for the purposes of making
statements to the police. In court they denied that they
said that
there was any stone-throwing or that the crowd was aggressive and
denied having read the statements before signing
it
r
or
that it was read back to them.
[84]
Du Toit, the policeman concerned, described the circumstances in the
police station at the time at which the statements were
taken. He
was under tremendous pressure and he had not properly commissioned
some of the statements. The version of the plaintiffs
that they had
not been given the opportunity of reading through their statements
or that Du Toit himself had not read rt back
to them cannot simply
be dismissed. More so when it appears that one of them states in the
statement that he desired no further
police investigation despite
being injured.
[85]
Nonetheless, I am satisfied that on all the evidence that some
members of the crowd did in fact and at various instances
during the
course of the incident throw stones at the police and at their
vehicles. The intensity of the stone-throwing appears
to have
differed from time to time. This may explain why some of the police
witnesses contradicted one another about when stones
were thrown. In
this regard Coetzee testified that while he was on the scene there
was no stone-throwing at all. It was only
when he left that there
was stone-throwing and he was forced to fire three shots into the
ground in order to disperse the crowd.
So too was Stroebel emphatic
that while he was on the scene there was no stones thrown prior to
Chachabane driving off. Their
versions in this respect does not
accord with that of the other police witnesses.
[86]
It is common cause that the shooting of the plaintiffs and the
deceased was not as a result of the shot fired by Chachabane
or
those fired by Coetzee. It is necessary to bear in mind that the
area in which the incident took place was poorly lit and
that it
would have been dark in most of the yards in Compacter Street. The
street lights and that from the houses appears to
have afforded very
poor lighting. It is also apparent that the area in which the entire
incident took place was not very large
and that the police would
have at all times been in close proximity to the crowd.
[87]
A part of the crowd that had been drawn to the scene of the incident
that Sunday night appears to have done so out of sheer
curiousity
and merely to observe what was taking place outside the shebeen at
Sylvia's house. No doubt, the car chase by the
police with its
flashing blue lights in a relatively small township would have
attracted the attention and the curiousity of
a number of people.
Chachabane himself described the scene as people drawn to "a
bioscope". The unfolding drama however
took the tragic turn in
which a member of the community tost his life and a number of others
were injured, one of whom has lost
her sight in one eye and still
has shotgun pellets in her head. It is also apparent that some
members of the crowd appeared to
have been under the influence of
alcohol as described by one of the police witnesses, as also the
plaintiffs themselves who admitted
to having been drinking that
night. The incident also occurred in close proximity to a number of
shebeens.
[88]
It is not exactly clear why the crowd had become aggressive towards
Chachabane while he attempted to effect the arrest of
Bastiaan. It
is not a matter in which people had assembled for a particular
reason or protest. It appears though that the attempt
to arrest
Bastiaan had triggered the excitement which developed into the
aggressive behaviour by some members of the public towards
the
police. Chachabane described the aggression and stoning by members
of the crowd and that he had been fearful of his life
and thought
that he was "going to die".
[89]
However, despite harbouring such fear, he did not find it necessary
to use his firearm to directly ward off any attack by
members of the
crowd. At some stage he did fire one warning shot into the air which
appears to have had the desired effect of
dispersing the crowd. None
of the other poficemen, in particular Du Toit, Fourie and Coetzee
who were also in close proximity
to Chachabane, found it necessary
to take any direct action against the crowd. In fact Du Toit, who
was armed, did not even deem
it necessary to remove his gun from its
holster. Mengal for his part, although having been pushed around by
the crowd, also did
not deem it necessary to fire any shots either
directly at the crowd or to fire any warning shots. When leaving the
scene Chachabane
testified that his vehicle had been stoned and
members of the crowd had banged on it. Even at that stage he did not
deem it necessary
to have fired any warning shots to have enabled
them to leave the scene. So too for Mengal.
[90]
Du Toit and Fourie testified that they saw Chachabane leave the
scene "safely" after which they walked through
the crowd
to their vehicle which was parked further down in Compacter Street.
They got into their vehicle, made a U-turn and
drove away in the
direction of the Stanford police station. They were not stoned. Only
at a distance of approximately 50 metres
and near the stop street
did they hear shots being fired by the Neptune squad. Even at that
stage they did not think it necessary
to return to the scene to
provide any assistance to Neptune.
[91j
It is necessary to examine more closely the circumstances under
which the shooting took place by the Neptune squad. August
testified
that as he understood Xhosa he heard the crowd saying in Xhosa that
they would stone the police upon them driving away
from the scene.
He conveyed this warning to both his commanding officer Stroebel and
some of the other police on the scene. It
is clear that Chachabane
and the Neptune squad (and all the other police) knew prior to
leaving the scene that the crowd had
threatened to stone their
vehicles upon their departure. In response to this warning Stroebel,
who was the most senior officer
on the scene, instructed Chachabane
to immediately leave the scene upon him retrieving the keys.
Stroebel had also informed the
rest of the Neptune squad about the
warning from August. He maintained that he had instructed the
Neptune squad merely to protect
themselves as they left the scene.
He denies emphatically that he gave them an instruction to fire any
warning shots.
[92]
The defendant in its reply to the plaintiffs' request for further
particulars for trial, specifically states:
"An
instruction was issued to shoot in defence of the members' lives and
protection of police vehicles".
This
assertion is, however, not supported by the evidence of Stroebel. It
appears from the testimony of Benjamin and August that
when Neptune
arrived on the scene they were taunted and laughed at by members of
the crowd. Stroebel claimed that members of
the crowd swore at them
and demanded that they leave the scene. Both Stroebel and August
testified that Neptune was not very
popular amongst the people in
the fishing villages. August testified that members of the fishing
communities disliked Neptune
because of the method of their
operation and that they (Neptune) were regarded as a threat to the
livelihood of the fishing communities.
Stroebel testified that
Neptune had previously been involved in other shootings in the
fishing villages. It appears that Neptune
had a poor reputation in
these communities and were not very popular. With the benefit of
hindsight I find it rather difficult
to understand why Neptune was
used in crowd control given this reputation.
[93]
With regard to the actual shooting of the plaintiffs and the
deceased, both Stroebel and August disavowed any responsibility
therefor. In fact they emphatically denied that the warning shots
which they had fired were directed at the crowd. Stroebel testified
that he initially fired two warning shots, one in the direction of
house 1543 into the ground and the second warning shot into
the
ground in the direction of Gansbaai. The other two warning shots
were directed into the air. Stroebel was only armed with
rubber
bullets. He was aiso emphatic that it was not necessary for him to
direct shots at any member of the crowd and that it
sufficed merely
to fire warning shots into the ground and into the air.
[94]
August for his part testified that all six shots that he had fired
was directed either into the ground or into the air. Likewise,
he
maintained that it was not necessary for him to have fired directly
at the crowd to ward off the attack. Both Stroebel and
August
explained that they had fired because of the stoning by the crowd
and because they believed that their lives were in imminent
danger.
However, despite this fear of their lives being in danger, they did
not deem it necessary to fire directly at their attackers
with their
shotguns, either with the use of rubber bullets or birdshot.
[95]
The defendant called none of the other Neptune policemen who had
fired their shotguns as they drove away from the scene,
this
notwithstanding that the policemen were apparently available to
testify. It was simply deemed not necessary by the defendant
to call
any further witnesses. In the absence of the evidence by the other
witnesses it is difficult for the Court to discern
how it came about
that the plaintiffs were injured and that the deceased was directly
shot, given the versions by both Stroebel
and August .
[96]
With regard to the situation of the deceased there is no evidence
before the Court as to exactly where he was at the time
at which he
was shot or what he was doing. All that the Court is able to assume
is that he was part of the crowd at which the
members of Neptune had
shot at. He was shot in the chest and would therefore had been
facing them as they drove by. As none of
the policemen in the
vehicle in which Stroebel were armed with birdshot but only rubber
bullets, none of them would have been
responsible for the shooting
of the deceased. August denied any responsibility for shooting
directly at the crowd and therefore
disavowed any responsibility for
shooting the deceased.
[97]
One of the other policemen in the vehicle in which August was
travelling must therefore have shot directly at October. The
exact
circumstances under which this person or persons shot is not known
except for that described by Stroebel and August when
they fired.
Noleen October had been standing on the fridge next to house 1544
together with two others. Likewise there is no
evidence of any of
the policemen as to how it came about that she was shot. The
injuries she sustained could only have occurred
as a result of a
shot being fired from the vehicle in which August was travelling.
Although Noleen had stood elevated from the
ground there is no
direct evidence that she was injured while any of the policemen had
fired a warning shot. None of the other
policemen in the Mazda
vehicle in which August rode had been called to testify with regard
to this aspect.
[98]
No expert evidence was given as to the trajectory of the shots fired
by the policemen as warning shots. The defendant, having
given
notice that it intended calling an expert, failed to do so.
[99]
Gabriel Setlebogo was shot in the back of his head and his back
while walking away through the yard at 1546. Likewise, no
explanation was tendered by the defendant with regard to him being
shot. The plaintiffs Constance, Arendse, Hendricks and January
were
all shot near the blue Mazda vehicle. All of them appeared to have
been fleeing and there is no direct explanation by the
defendant as
to how the injuries to them were caused. Benjamin appeared to
bending down to pick up a crate of beer and was shot
on the hand.
Save for the unsubstantiated suggestion to him by Mr
van
der Schvff
that
he was attempting to pick up a stone, there is no explanation as to
the reason for him being shot. So too with Steenberg
who was also
shot in the back with birdshot.
[100]
It had also been put to both Setlebogo and Benjamin in
cross-examination that the evidence of the defendant would be that
most of the stoning had come from the direction of yard 1573.
However, these submissions were not supported by the evidence of
either August or Stroebel.
[101]
Before proceeding further it is necessary to comment on the
testimony of both Stroebel and August. Stroebel was the captain
in
charge of all the other police during the incident. At the time of
testifying he had already retired from the police force.
In his
testimony he displayed an aloofness to the incident and eschewed any
responsibility for the actions of the men over
whom he was in charge
of. His denial of the instruction to shoot appears to be less than
credible and that he had simply left
it to each of the policemen to
decide for themselves what action to take under the circumstances.
He certainly did not impress
as a witness. He took no responsibility
for the injuries which were sustained to any of the plaintiffs and
the deceased. I am
mindful though that when Stroebel testified he
had just recovered from a heart attack and he did not understandably
wish to incur
any stress. However, there was nothing in his
demeanour in evidence that demonstrated a sense of responsibility by
him for the
shooting by the members of his squad.
[102]August
was a particularly poor witness. His version in some respects was
absolutely implausible and, like Stroebel, he also
took no
responsibility for what had taken place on the night in question.
His ridiculous explanation as to the possible cause
of the injuries
to the plaintiffs was also an indication of the almost flippant
attitude with which he treated the seriousness
and the consequences
of the shooting.
[103]
Despite the stoning of the Neptune vehicles, Stroebel remained
steadfast under cross-examination that the path in front
of him was
clear in order for him to drive off. The stoning had come from the
other sides and after firing the first two shots
he got into his
vehicle and drove off. When driving off the stoning was directed at
his vehicle. He stopped, took up his shotgun
and fired two further
warning shots. This appeared to have been a signal to the rest of
the Neptune squad to open fire, this
notwithstanding that the road
ahead was clear for him to make a getaway. Mr
Heunis
submitted that in the circumstances it was not necessary for
Stroebel and the other police to have fired as they did as they
could have driven away.
[104]
Mr
van
der Schyff
in relying on the decision of
Ntsome
v Minister of Law & Order
,
supra,
submitted
that it was incumbent on the police when faced with such a situation
not to flee but to carry out their police duties.
However, neither
Stroebel nor August claimed that it was their intention to effect
the arrest of any members of the crowd. They
simply wanted to get
away. It was also not their intention to bring the crowd under
control by the firing of the shots as it
did not appear that the
crowd would have continued with the stone-throwing after the police
had left the scene. In fact, that
was the very nature of the threat
August had overheard, it appeared that the sole reason as to why
they had shot was because
they had been stoned while driving away.
However, given the reliability of both Stroebel's and August's
testimony, it is difficult
to discern the actual intensity of the
stoning as they drove off which necessitated a volley of almost 43
shots from the police.
[105]
Mr
Heunis
submitted that regard must be had to the damage to the vehicles of
Neptune as a measure of the appropriate force used in retaliation.
Stroebel testified that it had not been necessary for him to record
any of the damage to the two Neptune vehicles in the records
of the
police station both at Stanford and at Hermanus because the damage
was not regarded as serious. It is also apparent that
none of the
members of Neptune were injured during the stone-throwing, either
while they were outside the vehicle, or while they
had fired the 43
shotgun rounds. Mr
Heunis
submitted that the fact that none of the policemen who had left the
scene had been injured by any of the stone-throwing, if anything
gives some indication of the intensity and the consistency of the
attack by the crowd. He submitted that the direct shooting
by
Neptune at the crowd was wholly disproportionate to the attack.
[106]
In applying the defences of necessity and self-defence, the Court
has to consider the requirements referred to earlier:
The
question arises as to whether a situation of necessity had actually
existed. In this regard the defendant carries the
onus
of
proving on a balance of probabilities that it did in fact exist.
With regard to the shooting of the plaintiffs the only evidence
submitted was that of Stroebel and August. On Stroebel's own
evidence there was a clear path ahead of him in order for him
to
drive off and he could in fact have done so given that the other
vehicle was immediately behind him that would also have
enabled
that vehicle to have left the scene. None of the police officers of
Neptune were caught by surprise or that the attack
placed them in
sudden peril. They had been warned by members of the crowd that
they would be stoned upon them leaving the scene.
In the
circumstances, they knew that when driving off they were going to
be subjected to stone-throwing. It appears though
that this
knowledge had led them to position their guns out of the windows of
the vehicles as they drove down Compacter Street.
As i have already
indicated it is not clear what the intensity of the stoning by the
crowd was at this stage given the reliability
of Stroebel and
August's testimony and the lack of any objective evidence with
regard to the damage to the police vehicles.
2.
With
regard to the second requirement of the test of necessity I am
particularly mindful of the caution expressed in the matter
of
Ntanjana
referred to above, that a court should not ex
post
facto
and
with hindsight consider what ought to have been the more appropriate
course of action the police should have taken under the
circumstances. However, given the evidence before the Court and more
so the lack of it by the other members of Neptune, I am
left with no
other conclusion to draw but that some members of Neptune must have
fired directly into the crowd. Others may well
have shot into the
ground or into the air. There was no expert evidence placed before
the Court with regard to whether any
of the shotgun pellets could
have ricocheted from the ground and I am therefore not able to make
any finding with regard to that
aspect. It appears that shots must
have been fired directly at the crowd, in particular at a height
that caused the death of
one of them. In the absence of direct
evidence by the police who shot, it is not for the Court to
speculate as to the situation
of necessity or self-defence in which
they found themselves.
I
have already referred to the decisions of the Constitutional Court
which emphasises the foundational rights of life and dignity.
The
defendant carries the burden of justifying the actions of its
members in circumstances where a life has been taken and where
others are seriously injured, such as Noleen and Mrs Arendse.
3.
With regard to the defence of consent, as already indicated, the
defendant did not seem to press this in argument. Chachabane
himself
testified as to the attraction that the incident had excited
in members of the community. It is therefore
to be expected
that there would have been a number of innocent bystanders at the
scene in front of Sylvias house. Mr
Heunis
submitted that as the policemen themselves testified that it was not
necessary for them to fire directly at the crowd it could
therefore
not have been expected of any members of the crowd, in particular
the plaintiffs, that they should have known that
they could have
been shot at directly by the police. It is so that on a daily basis
innocent bystanders are attracted to scenes
of police arrests,
shootings and street protests. It can hardly be countenanced that
everyone who is an innocent bystander and
who is injured in such
situations could simply be regarded as having consented to such
injury merely because of their curiousity
and presence at such
scenes. It is human nature to be curious and more so when such
curiousity is excited very often by the actions
of the police. It
cannot be expected of members of a crowd to have consciously
consented to the risk of being shot. In the
circumstances I am
not satisfied that the defence of consent has been proved.
[107]
In conclusion the Court finds that the defendant has failed to
satisfy on a balance of probability that it was justified
in the
shooting which caused the death of Mr October and the injuries to
each of the other plaintiffs, either on the basis of
necessity or
self-defence or that of consent.
[108]
I accordingly make the following order:
1. The
defendant is liable for the damages suffered by the plaintiffs.
2. The
defendant is liable for the costs incurred by the plaintiffs in
proving the merits of their claim.
SALDANHA.
AJ