Brief Summary

Criminal Law — Justification for use of lethal force — Application of section 49(2) of the Criminal Procedure Act 51 of 1977 — Police officers shooting at a vehicle occupied by the deceased, who was not suspected of any crime — Deceased's death resulting from police action while attempting to apprehend another suspect — Court held that the police did not establish that the deceased was fleeing or that he could only be stopped by lethal force, rendering the shooting unjustified and not falling within the ambit of section 49(2).

Comprehensive Summary

Summary of Judgment

1. Introduction

This matter concerned a delictual damages claim for loss of support arising from the fatal shooting of Melvyn Frederick Misrole (“the deceased”) by police officers during a pursuit of a vehicle that had been reported stolen. The litigation focused primarily on whether the killing was legally justified under section 49(2) of the Criminal Procedure Act 51 of 1977, which (at the time) provided for circumstances in which the killing of a fleeing suspect could be deemed justifiable homicide.

The appellants were Theresa Barbara Hughes, Rene Abrahams, Mary Theunissen, and Bonita Visser, described as the unmarried mothers of the deceased’s five minor children, suing for the patrimonial loss suffered by the children as a result of the deceased’s death. The respondents were the Minister of Law and Order (as first respondent) and the two police members who fired shots at the pursued vehicle, namely Neville Barnard de Beer (second respondent) and Stephen Brian McEvoy (third respondent).

In the court a quo, the respondents pleaded, among other defences, that the shooting fell within the protective ambit of section 49(2). The trial court upheld that defence and dismissed the claim, but granted leave to appeal. The Appellate Division (as constituted at the time) heard the appeal and was required to determine whether the statutory justification had been established on the evidence, and—if not—whether the plaintiffs had proved negligence on the part of the police officers.

The general subject-matter of the dispute was therefore the lawfulness and fault of police conduct in the context of an attempted arrest and high-speed pursuit, and the civil liability consequences where a passenger in the pursued vehicle is killed by police gunfire.

2. Material Facts

A Toyota motor vehicle belonging to Priscilla Simmons was reported stolen after her companion, Raymond (the deceased’s brother), disappeared with the vehicle while she was shopping. It was common cause that later that night, Raymond drove the Toyota and that the deceased was a passenger in the vehicle, seated at the back, with the deceased’s young child having been with them earlier in the evening. None of the occupants knew that the vehicle had been reported stolen or that the police were looking for it.

The vehicle ultimately arrived outside a house in Iona Street, Rugby, where the deceased resided with Theresa Hughes (first appellant). While the occupants remained in the vehicle, Hughes went inside. It was also established that Hughes contacted the police and reported that the stolen vehicle was outside her residence.

A police officer, adjudant-offisier Van der Westhuizen, responded and arrived in Iona Street. He approached the Toyota with police lights activated, after arranging for additional police vehicles to wait nearby in Koeberg Road. The Toyota then drove off at high speed, and Van der Westhuizen gave chase.

The second and third respondents, De Beer and McEvoy, were waiting in Koeberg Road in a police vehicle and were aware via radio communications that the stolen Toyota was approaching. De Beer positioned the police vehicle across Koeberg Road in a manner that largely obstructed a lane of traffic, with a blue flashing light activated. The Toyota approached at high speed, swerved around the police vehicle, and continued toward Cape Town. De Beer and McEvoy pursued but could not overtake the Toyota, and both fired several shots at it in an attempt (on their version) to stop it. It was common cause that a bullet fired by one of them struck the deceased, who later died.

A factual dispute arose at trial regarding whether, when Van der Westhuizen arrived in Iona Street, the occupants had been standing outside the Toyota and then jumped in before driving off. Van der Westhuizen testified that three men were outside the Toyota and then entered it before it sped away. By contrast, Hughes and Vogel testified that the occupants remained in the vehicle, though the rear door was open and the deceased had a foot outside but refused to get out. The trial judge rejected Vogel’s evidence as wholly unreliable, and accepted Hughes’s evidence “freely” as to the evening’s events; however, the trial judge did not make a finding that the three men were outside and then jumped in as Van der Westhuizen claimed, and expressly contemplated that Van der Westhuizen could have been mistaken on that point. On appeal, this meant that Van der Westhuizen’s version on that specific issue could not be treated as proved on a balance of probabilities.

It was also accepted that the deceased was heavily intoxicated, and objective evidence recorded at post-mortem indicated a blood-alcohol concentration of 0,30 gm/100 ml. The appellate court treated this as part of the explanation for the deceased’s conduct in remaining in the vehicle and being difficult to persuade to leave it earlier in the night.

3. Legal Issues

The central legal question was whether the respondents had established the factual prerequisites for the statutory justification in section 49(2) of the Criminal Procedure Act 51 of 1977, with the result that the killing would be deemed justifiable homicide. This required determination of whether the deceased fell within the class of persons contemplated by section 49 (read with section 49(1) as interpreted in prior authority), and whether the requirements relating to flight, knowledge of an attempted arrest, and necessity (in the sense that there was no other way to prevent escape) were satisfied on the evidence.

The dispute was primarily one of the application of legal requirements to the proved facts, with important underlying factual evaluations (including whether the deceased could be said to have been “fleeing” and whether it would have been clear to him that an attempt was being made to arrest him). The appeal also raised, as a further question, whether an alternative justification—that the officers acted lawfully to remove a danger to the public arising from the manner of driving—could be sustained on the pleadings and evidence.

If the statutory and pleaded justifications failed, the remaining question became one of delictual fault, namely whether the appellants proved negligence on the part of De Beer or McEvoy in firing shots at a moving vehicle in circumstances where the occupants could foreseeably be struck.

4. Court’s Reasoning

The court began by setting out the content of section 49(2) and explaining, with reference to authority, that its operation depends on the meaning of “the person concerned” as used in section 49, which must be read with section 49(1). Relying on Macu v Du Toit en ’n Ander 1983(4) SA 629 (A), the court reiterated that section 49 applies to a person who either resists arrest in a way that cannot be overcome without violence, or flees when it is clear that an attempt is being made to arrest him (or resists and flees). The court further referred to S v Barnard 1986(3) SA 1 (A) in relation to the requirement that, in the case of flight, it must be clear to the person concerned that an attempt at arrest is underway.

On that basis, the court identified the two key factual elements the respondents needed to prove to succeed under section 49(2) in this case: first, that the deceased fled while it was clear to him that the police were attempting to arrest him; and secondly, that he could not be prevented from escaping other than by being killed. The court emphasised that the onus rested on the respondents to establish these requirements on a balance of probabilities.

The court noted (without deciding) an additional difficulty that had not been ventilated at trial, namely whether any of the police involved were authorised to arrest the deceased at all. It analysed the structure of the Criminal Procedure Act, observing that arrest without warrant by a peace officer is governed by section 40, and that, outside specified instances, a relevant basis would be a reasonable suspicion that the person to be arrested committed a Schedule 1 offence. Although theft is a Schedule 1 offence, the court recorded that none of the police witnesses testified that they suspected the deceased of theft of the Toyota. The court considered it doubtful whether mere presence in a stolen vehicle would, without more, constitute reasonable grounds to suspect involvement in the theft, but concluded that it was unnecessary to decide the point given its findings on the other prerequisites for section 49.

Turning to the decisive issue, the court accepted that Raymond, as driver, plainly fled and that it would have been clear to him that the police were attempting to arrest him. However, it stressed that section 49(2) had to be applied to the deceased, not to Raymond. The evidence did not establish that the deceased himself fled in the relevant sense. The court regarded as unproved the contention that the deceased had been outside the vehicle and then jumped in when the police arrived, because the trial judge had not made such a finding and because Hughes’s accepted evidence contradicted it. On the proved facts, the deceased remained seated in the back of the vehicle until he was shot.

The court considered whether the deceased’s remaining in the vehicle could properly be treated as an indication that he sought to escape the police. It held that this could not be inferred as the probable explanation. The court pointed to the deceased’s extreme intoxication and the evidence that, earlier, he had refused to get out because he still wanted “one last drink.” In the court’s assessment, intoxication provided a more probable explanation for his conduct than a conscious decision to flee arrest. It also accepted that once the vehicle sped away, it would in any event have been life-threatening for a passenger to attempt to exit.

The court further held that it was not established on a balance of probabilities that it was clear to the deceased that the police were attempting to arrest him. The deceased had no involvement in the theft of the vehicle, and the more probable inference, if he was capable of appreciating events in his intoxicated state, was that the police interest was directed at Raymond. The court considered it unlikely that the deceased would have feared arrest in those circumstances. Because this first requirement of section 49(2) (flight with knowledge of an attempted arrest) was not proved in relation to the deceased, the statutory defence necessarily failed, and the court found it unnecessary to consider whether the second requirement (no other means to prevent escape) had been established.

The respondents also relied on an alternative pleaded justification that De Beer and McEvoy acted lawfully (and indeed were obliged to act) because the driving posed a danger to the public and property, purportedly under the Criminal Procedure Act and the Police Act 7 of 1958. The trial court had not addressed this due to its section 49 finding, but the appellate court considered it and rejected it. The court observed that counsel could not point to a specific statutory provision sustaining the defence, and the argument appeared instead to be derived from the police’s general duties to prevent crime. The court characterised the submission, as advanced, as effectively asserting that where a vehicle is driven dangerously, police are authorised (and obliged) to remove the danger even if this requires killing the occupants. The court stated that a differently framed defence based on a state of necessity to protect life or property, coupled with the deceased’s death being an unforeseen result, might potentially have had legal content; however, the court expressly declined to pronounce on that because it was not the defence pleaded, and in any event it was not proved on the evidence. As pleaded and argued, the court viewed the defence as an attempt impermissibly to extend the statutory entitlement to use lethal force beyond the confines of section 49.

Once the justifications failed, the court addressed negligence. Both De Beer and McEvoy testified that they shot at the wheels of the Toyota to stop it. McEvoy conceded that there was always the possibility that the occupants could be struck by bullets. The court reasoned that given the circumstances of the pursuit as described, the officers could not have been able to shoot at the wheels with any reliable accuracy, and the foreseeable risk of striking occupants was evident. On that basis, the court held that negligence was self-evident.

5. Outcome and Relief

The appeal succeeded. The appellate court set aside the trial court’s order dismissing the claim and substituted it with judgment for the plaintiffs for the agreed damages amounts in favour of each appellant, together with the costs of suit in the court a quo. The court also awarded the appellants the costs of the appeal.

The substituted order granted judgment for payment of R43 000,00 to the first plaintiff, R10 667,00 to the second plaintiff, R5 733,00 to the third plaintiff, and R9 151,00 to the fourth plaintiff, together with costs.

Cases Cited

Macu v Du Toit en ’n Ander 1983(4) SA 629 (A). S v Barnard 1986(3) SA 1 (A).

Legislation Cited

Criminal Procedure Act 51 of 1977 (sections 49(1), 49(2), 40; and Schedule 1). Police Act 7 of 1958 (as referenced in the pleadings).

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The respondents failed to prove that the deceased was a person who fled while it was clear to him that the police were attempting to arrest him, as required for reliance on section 49(2) of the Criminal Procedure Act 51 of 1977. The statutory justification for the killing therefore did not apply. The alternative defence, framed as a general entitlement or duty of police to shoot in order to remove danger posed by the vehicle’s driving, could not succeed as pleaded and argued. In the absence of a lawful justification, the shooting was found to be negligent, given the foreseeable risk that firing at a moving vehicle could strike its occupants. The plaintiffs were accordingly entitled to judgment for the agreed damages amounts, with costs.

LEGAL PRINCIPLES

Section 49(2) of the Criminal Procedure Act 51 of 1977 operates only where its factual prerequisites are established, including that the person killed falls within the scope of section 49(1) and, in cases of alleged flight, that the person flees when it is clear that an attempt is being made to arrest him. In civil proceedings where section 49(2) is raised as a justification, the party relying on the provision bears the onus to prove the jurisdictional facts on a balance of probabilities.

In assessing flight for purposes of section 49, the inquiry is directed at the conduct and state of appreciation of the person who is killed, not another suspect (such as a driver) whose conduct may more plainly amount to flight. The fact that a person is a passenger in a fleeing vehicle does not, without more, establish that the passenger himself is “fleeing” in the sense required by section 49(1) and (2), nor that it was clear to him that the police were attempting to arrest him.

A purported police power or duty to use lethal force to remove a general danger to the public cannot be treated, merely by reference to general policing duties, as an enlargement of the statutory conditions governing lethal force during arrest. Where justification is not established, firing shots at a moving vehicle in circumstances where it is foreseeable that occupants may be hit may constitute negligent conduct for purposes of delictual liability.

Hughes en Andere v Minister van Wet en Orde en Andere (652/89) [1991] ZASCA 164 (26 November 1991)