About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
1992
>>
[1992] ZASCA 104
|
|
Ntsomi v Minister of Law and Order (553/89) [1992] ZASCA 104 (29 May 1992)
553/89
/mb
IN THE SUPREME COURT OF SOUTH
AFRICA
(
APPELLATE DIVISION
)
In the matter between:
ZANDISILE NTSOMI
APPELLANT
and
THE MINISTER OF LAW AND ORDER
.. RESPONDENT
CORAM
: JOUBERT, HEFER,
NESTADT, KUMLEBEN
JJA et KRIEGLER AJA
HEARD
:
7 MAY 1992
DELIVERED
: 29 MAY 1992
JUDGMENT
KUMLEBEN, JA
/...
1.
KUMLEBEN, JA
:
At about 10pm on the night of 12
October 1985 at the Zwelethemba township, Worcester, Sergeant van der
Merwe of the South African
Police shot the appellant in the leg
resulting in its amputation above the knee. In due course, arising
from this injury, the appellant
instituted action in the Cape
Provincial Division of the Supreme Court against the respondent for
damages in the amount of R50 000.
The cause of action was based on
the allegation that at the time the shot was fired Van der Merwe was
acting within the scope of
his employment as a policeman and that the
shooting was unlawful. The respondent admitted the former averment.
He, however, denied
that the policeman's action was unjustified. He
pleaded that Van der Merwe was attempting to arrest the appellant in
the course of
his duties as a policeman or, alternatively, that he
acted in self-defence.
2/...
2.
At the start of the trial the
court (Van Deventer AJ) ordered that the question of liability be
first decided. The respondent called
Van der Merwe and a colleague,
Captain van Huyssteen, as witnesses. The appellant was the sole
witness to testify on his behalf.
The trial court accepted the
evidence of the respondent's two witnesses in preference to that of
the appellant, held that Van der
Merwe had acted lawfully in defence
of his person and accordingly dismissed the appellant's claim with
costs. It granted him leave
to appeal to this court.
The background facts, and the
sequence of events that night, are fully set out in the judgment of
the court a
quo
: 1990(1) S.A. 512(C). I need only sketch them.
The appellant, 21 years old at the
time, lived at Zwelethemba township. That evening Van Huyssteen, who
was stationed at Worcester
and in charge
3/...
3. of the special units combating
civil unrest, received a report of a disturbance in the township:
that a crowd of people were throwing
stones in the direction of the
communal hall and at a police patrol vehicle. He summoned Van der
Merwe from the charge office to
accompany him to the scene of
commotion in Theoha Avenue in the township. Van der Merwe was not
ordinarily involved in riot control
duties. On arrival at this street
they found that a house, and a Combi next to it, had been set on
fire. From inside the yard adjacent
to the street stones were thrown
at their vehicle by people who were obscured from their view. They
saw ahead of them a motor car
being pushed into the street by three
persons who set about successfully igniting it. Van der Merwe, acting
on instructions, fired
at them with his pistol. The two policemen
realised that they were in a situation of extreme danger and Van der
Merwe, again on the
instruction of
4/...
4. Van Huyssteen, reversed his
vehicle in order to place a safer distance between them and their
assailants. Police reinforcements
joined them. Van Huyssteen decided
to deploy a three-man patrol on foot with a view to their arresting
the stone-throwers. Van der
Merwe was in charge accompanied by
Constable Luff and Sergeant Brink. Each was armed with a pistol and a
shotgun. They proceeded
under cover between the rows of houses in the
block bounded on two sides by Ngetu Avenue and Theoha Avenue. Van der
Merwe took up
a position at the south-east corner of erf no 382. (The
area concerned is depicted on the map, Exhibit RSC2, and in more
detail on
the diagram, Exhibit RSC3.) He saw police vehicles being
stoned by two persons in the vicinity of erf no 396. (There was no
moon
that night. There were street lights in the vicinity but Van der
Merwe could not say how many were on. The light emitted from the
burning house and Combi contributed to
5/...
5. or accounted for such
visibility as there was.) The three policemen crossed Theoha Avenue
and took up a position on the south-east
corner of the house on erf
no 397 (marked X4 on Exhibit RSC3). This enabled Van der Merwe to see
at a shorter distance the two persons
who were still throwing stones
at passing vehicles. He heard a stone strike one, which came to an
abrupt and noisy standstill. He
could clearly see these two persons
who were involved but the light was insufficient for him to identify
their features.
According to Van der Merwe, when
he again saw the two men from the second observation station he moved
towards them, keeping them
continuously in sight. As he approached
them, they turned round as a result of the police vehicle suddenly
stopping and ran towards
him. This was at a time when he was climbing
over a low fence between erf no 396 and no 397. He was
6/...
6. dressed in the conventional
blue-grey uniform of the S A Police: long trousers, safari jacket
with shiny buttons and flat-topped
peak cap. On seeing him the two
stone-throwers took evasive action. They were virtually face to face.
One turned about and ran whence
he had come. The other checked
momentarily, turned to his right, ran towards a building within the
yard of erf no 396 and disappeared
round the southeastern corner
of that dwelling. Van der Merwe ran after him. As Van der Merwe
rounded that corner, he found
himself in a narrow alley between the
building, as it existed at the time, and the northern boundary fence
of the adjoining property.
The appellant had stopped and turned
around. Thus they came face to face. He was alone and did not know
where his two colleagues
were. He struck at Van der Merwe with an
object held in his hand. Van der Merwe warded off the
7/...
7.
blow by raising the shotgun
with both hands to a
horizontal position. The object struck the
magazine of
the shotgun and the left index finger of his one
hand.
His assailant appeared to be
momentarily off-balance
and for an instant moved back
slightly. He immediately raised his. right hand to strike again. Van
der Merwe reacted by firing a shot,
as he put it, in the direction of
the appellant's legs and the ground. He and Sergeant Brink, who soon
afterwards appeared on the
scene, carried the injured appellant to
the street and from there he was conveyed in a police vehicle to
hospital.
The appellant told a different
story. That night he and a friend came to the house at erf no 396 to
see his friend, Zimpewe, who lived
there. He sent Kenneth to convey a
message to Zimpewe. Kenneth left on this errand and the appellant
went to the lavatory.
8/...
8. Afterwards he went to wash his
hands at a tap. Whilst doing so, shots were fired at him. He fell and
people started hitting and
kicking him where he lay. As a result of
this assault his face was swollen and the right side of his body
lacerated. He denied that
he ever threw stones or indeed that any
stone-throwing took place that evening; that he was shot at the place
described by Van der
Merwe; that the house and Combi were burning at
the time; or that there were any police vehicles in the vicinity. It
was, he said,
a peaceful night in the township without any abnormal
activity.
There were ample grounds for the
rejection of the appellant's evidence. This Mr van der Berg, who
appeared on his behalf, readily
conceded. His story was patently a
fabrication from first to last. In accepting the evidence of Van der
Merwe, the court commented:
9/...
9.
"His answers were at times
somewhat evasive and quite often exculpatory, but my impression of
him was that he was serious and
quite concerned about the incident.
There was no sign of insensitivity. He appeared to be a rather
sensitive and intense personality.
I am not inclined to draw an
unfavourable inference from his inclination to be exculpatory. He
gave the impression of a policeman
who takes his work very seriously
and there was nothing unsympathetic in his testimony or response. I
found nothing in the witness'
demeanour or attitude that indicated or
possibly suggested untruthfulness or dishonesty and I do not agree
with counsel for the plaintiff
that Sergeant Van der Merwe must be
held to have been untruthful." (523G - I)
On my reading of the record I
found nothing to support the qualified censure that Van der Merwe was
"somewhat evasive" and
Mr van der Berg was unable to refer
to any evidence to substantiate this. I merely mention this in
passing since the court was unquestionably
correct in finding that
Van der Merwe was in all material respects a truthful witness and
implicitly a reliable one. This Mr van
der Berg initially conceded in
argument. Nevertheless for a spell - a rather
10/...
10. protracted one - he sought to
qualify this concession by submitting that portions of Van der
Merwe's uncontradicted evidence,
despite the finding of the court a
quo
, ought not to be taken into account. No sound reasons for
this approach were furnished nor was there any clear indication of
what
portions of his evidence were to be disregarded. Plainly the
question of liability is to be decided - as it was in the court below
- on the acceptance of Van der Merwe's evidence as a whole. (The
evidence of Van Huyssteen was likewise accepted, its most significant
detail being his confirmation that the shotgun was damaged and the
finger injured as described by Van der Merwe.)
"The judgment of the court a
quo
sets out comprehensively - and instructively - the
principles to be applied when considering a plea of self-defence.
(526D - 527B
and 528B - 529B). For present purposes I need only
quote, for emphasis, what was said by Van
11/...
11.
Winsen AJ in
Ntanjana v Vorster
and Minister of Justice
1950(4) SA 398(C) 406 A - D:
"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 at the
time he acted. The Court must be careful to avoid the role of the
armchair critic wise after
the event, weighing the matter in the
secluded security of the Court-room. (
Cf. Rex v. Jack Bob (supra)
;
Rex v. Hele
(1947 (1), S.A.L.R. 272
at p.276 (E.D.L.));
Rex
v. Gege (supra
); Gardiner & Lansdown
S.A. Criminal Law &
Procedure
(5th Ed., Vol
II,
p.1413).)
Furthermore, in judging the matter it must be ever present to the
mind of the judge that, at any rate in the particular
circumstances
of this 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 a situation of
imminent peril. 'Men faced in moments of crisis
with a choice of
alternatives are not to be judged as if they had had both time and
opportunity to weigh the pros and cons'
per
INNES, J.A., in
Union Government v. Buur
(1914, A.D. 273
at p. 286)."
12/...
12.
As regards this plea of
self-defence, Mr van der
Berg in the first place argued
along the following
lines. He submitted that the
respondent had failed to
prove that the appellant realised
he was being
confronted and then chased by a
policeman
; that the
appellant was therefore entitled
to deduce that his
pursuer was acting unlawfully; and
that the manner in
which the appellant reacted was
therefore lawful. In
short he submitted that it was
the
appellant
who acted
in lawful self-defence, and it
followed that Van der
Merwe could not have been
resisting an unlawful
attack. The factual premise for
this argument is
unsound. There is no suggestion
that the combatants
were, or might have been, persons
other than, on the
one hand, the stone-throwers and,
on the other, the
police. The reaction of the
appellant and his
associate at the time they first
saw Van der Merwe,
apparently as he was climbing
through the fence,
13/...
13. strongly indicates that his
uniform, and possibly the fire-arm he held, identified him as a
policeman. In any event there can
be little doubt that at the time
when the two of them were face to face in the alley and before the
appellant delivered the first
blow, the official identity of his
pursuer must have been known to him. Particularly in the absence of
any assertion on the part
of the appellant that he did not realise,
in the circumstances described by Van der Merwe, that the latter was
a policeman, one can
accept at least as a probability that this fact
was known to him.
Counsel next turned to what is in
fact the vital - and really the only - issue in this case viz;
whether the means of defence adopted
by Van der Merwe were
commensurate with the danger confronting him. In this enquiry it is
useful, with reference to the particular
circumstances of each case,
to consider the other options open to Van der Merwe, assuming that he
14/...
14. had time for reflection.
Before undertaking this enquiry -
and at the risk of some repetition - certain facts ought to be
emphasized. The situation that night
was tense and the patrol had
embarked upon an exercise fraught with danger. Van der Merwe found
himself in the yard of premises totally
unfamiliar to him. As he
chased the appellant into the alley there was a sudden and unexpected
reversal of roles: in the case of
the appellant, from fugitive to
armed aggressor. The entire episode from this stage until the shot
was fired was a continuous one
and must have taken place within a
very short period of time. (Van der Merwe said that it was a matter
of seconds or a fraction of
a second.) At no stage was there an
interval when Van der Merwe could have reflected on the different
courses of defensive action
open to him. At no stage did the
appellant give any indication that he was about to, or likely to,
15/...
15. disengage: on the contrary the
first blow was immediately followed by a second attempted one.
According to Van der Merwe, had
he failed to ward off the first blow,
he would have been struck in the region of his left eye. The
encounter, as has been pointed
out, took place in a dimly lit alley
no more than 60 centimetres in width. Neither of them had room to
manoeuvre or take any lateral
evasive action. There was no
opportunity for Van der Merwe to identify the object held by the
appellant. All that he could discern
at a critical time was that it
was being used as a weapon and had forcefully made contact with his
shotgun. Van der Merwe's objective
was to do no more than he
considered necessary to immobilise the appellant and for that reason
aimed at his legs and the ground.
The tragic result was not one he
intended or had time to contemplate. Van der Merwe's decision and
reaction must be seen and adjudged
within the context of these
16/...
16. considerations.
Alternative measures Van der Merwe
might have adopted were canvassed in argument. Most can be easily
disposed of. It was conceded
that in the alley there was no
opportunity for him to have fired a warning shot. For him to have
turned round in order to run away
was obviously not a proposition.
Nor could he have been expected to ward off the second attempted blow
by again blocking it with
the shotgun. As he explained "ek was
gelukkig om die eerste hou af te weer, ek kon nie 'n kans vat om 'n
tweede hou weer te
probeer afweer nie." Had he repeated this
defensive measure, the second blow may well have struck one of his
hands - as indeed
the first did - and caused him to release that
hand's hold on the shotgun, probably rendering it useless as a means
of protection.
A suggested option calling for
closer examination is whether Van der Merwe ought to have retreated.
In
17/...
17. discussing this, I shall
assume that he was in a position no different from an ordinary
citizen: in other words, that he was not
by virtue of his office
entitled or obliged to stand his ground if the danger could
reasonably have been averted by his drawing back.
When Van der Merwe
was asked why he did not do so by retreating a pace or so, he
replied: "Soos ek se, dit kon klipperig - enigiets
kon gebeur
het en as ek in daardie stadium miskien my voet of iets gehaak het en
ek het geval, was ek geheel en al 'n oop teiken."
This is
clearly no more than an ex
post facto
explanation for his not
having taken this course and takes the matter no further. In the
absence of reliable evidence on the condition
underfoot at the
relevant time, any
actual
danger of stumbling ought be
discounted. Whether, objectively speaking, an
apprehension
of
such an eventuality would have been unrealistic is another matter. He
could hardly be expected to take note of
18/...
18.
the ground he was covering as he
chased after the
appellant - his mind and eyes were
on other things.
But even if one accepts that any
such apprehension
would have been misplaced, I do
not consider that he
could reasonably have been
expected to withdraw in the
circumstances. The appellant was
poised to strike him
and for each step backwards he
might have taken, his
assailant - if anything with more
alacrity - could have
stepped forward. I stress again
that there was no
indication that retreat on his
part would have caused
the appellant to desist from his
attack. In
conjunction with this submission
that Van der Merwe
should have retreated, Mr van der
Berg argued that Van
der Merwe, on his reconstruction
of where he was
probably standing in the alley,
had only just entered
it and that a pace or two could
have placed him round
the corner of the building and out
of harm's way. This
contention is, however, based on
two unrealistic
19/...
19. suppositions; first, that Van
der Merwe would have had time to note the extent to which he had
entered the passage way at the
time he was forced to an abrupt halt,
and, second, that he would have had time to take this into account
before deciding how to react.
In the result I am of the view
that the finding of the court a
quo
as regards this defence
was correct. It is therefore unnecessary to consider the merits of
the contention that he had acted lawfully
in the course of attempting
to effect an arrest.
The appeal is dismissed with
costs.
M E KUMLEBEN
JUDGE OF APPEAL
JOUBERT JA )
HEFER JA ) - Concur
KRIEGLER AJA)
/CCC
CASE
NO 553/89
IN THE
SUPREME COURT OF SOUTH AFRICA
(APPELLATE DIVISION)
In the
matter between:
ZANDISILE
NTSOMI
APPELLANT
and.
MINISTER
OF LAW AND ORDER
RESPONDENT
CORAM
:
JOUBERT, HEFER, NESTADT, KUMLEBEN JJA
et
KRIEGLER AJA
DATE HEARD
: 7 MAY 1992
DATE DELIVERED
: 29
MAY 1992
JUDGMENT
NESTADT, JA:
It is true
that sergeant van der Merwe was in a situation of imminent and
unexpected danger.
2
Appellant
had already attacked van der Merwe once. He
was
in the throes of doing so again. So appellant was a determined
aggressor. They were in close proximity to each other. The type
of
object that appellant was holding in his hand was unknown to van der
Merwe. The lighting was not good. Van der Merwe was alone.
He did not
know where his colleagues were. There was little room for manoeuvre.
Nor was there much time for reflection as to what
to do. Moreover in
shooting van der Merwe aimed at and struck the appellant in the lower
part of his body, namely his one leg. Yet,
making full allowance for
these factors, I think that in doing so he acted unreasonably.
Perhaps the standard of reasonableness against
which I measure what
van der Merwe did is a more exacting one than that of my Brethren. In
any event I am more critical of the manner
in which he acted. I leave
aside whether an
3
oral
warning or a warning shot were feasible alternative
courses of
action in the circumstances. I also assume
that it
was not to be expected of van der Merwe that he
should
rather have grappled with the appellant or that
he should
have attempted to ward off the attack as he
did the
first one or that he should have pushed the
appellant
away. And I acknowledge that van der Merwe
cannot be
criticised for not fleeing. In my opinion
however
instead of shooting at the appellant as he did
he ought
(whilst still facing the appellant) to have
stepped or
jumped back a pace or two. This was a
simple
alternative which even in the agony of the moment
should
have occurred to and have been undertaken by him.
It was one
which the trial judge would not appear to
have
considered. Van der Merwe who was an experienced
policeman
could quite easily have acted in this way. As
4
I read his
evidence he does not say there was insufficient opportunity to do so.
Indeed to my mind he never satisfactorily explained
why he could not
avoid shooting the appellant. At the critical time the appellant was
not advancing towards van der Merwe. There
was space to step back.
Van der Merwe's fear that he might have stumbled or fallen was not a
realistic one. There was no reason for
thinking that the surface of
the ground in the alley was uneven to any significant extent. The
adoption of the suggested course would
not have enabled the appellant
to escape. Van der Merwe would still have been able to effect an
arrest but he would have (temporarily)
put himself out of harm's way.
The appellant was not attempting to throw whatever object he had in
his hand at van der Merwe. He
was attempting to actually strike van
der
5
Merwe with
the object. By retreating the intended blow would have been evaded.
And the appellant would then have become or would have
been made
aware of the fact that van der Merwe had a firearm. In the unlikely
event of the appellant thereafter continuing his attack
on van der
Merwe, that would have been the time to shoot as he did. Van der
Merwe must have been aware of the grave consequences
to the appellant
of shooting at him. I do not mean to adopt an arm-chair critic
approach. But I have come to the conclusion that
van der Merwe' s
response was in all the circumstances too hasty and insufficiently
skilful. I think there was an element of panic
in what he did. He
therefore did not establish the requirements of either self-defence
or a defence founded on sec 49(1) of Act 51
of 1977 (see at 506B of
the reported judgment). I would allow the appeal.
NESTADT,
JA