IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)

Case number: 20196/2023
In the matter between:
MOTSAMAI SAMUEL MOKONE Plaintiff

and

MINISTER OF POLICE First defendant
SIYABONGA CISHE Second defendant



JUDGMENT DELIVERED ON 16 OCTOBER 2025



VAN ZYL AJ:

Introduction

1. This is a delictual claim for damages in which the plaintiff alleges that he was
unlawfully shot, arrested, and detained by members of the South African Police
Service (SAPS), for whose conduct the first defendant is vicariously liable. The
particulars of claim also include allegations of assault , but the plaintiff’s counsel
indicated during oral argument that no reliance was placed thereon for the
purposes of the plaintiff’s claim.

2. The defendants admit that on Friday , 10 February 2023, the plaintiff was shot,
arrested without a warrant of arrest, and detained by SAPS members acting
within their course and scope of employment with the Minister . They deny,
however, that the plainti ff was assaulted in any way other than the gunshot
wound he sustained.

3. The second defendant is a member of the S APS, and one of the persons with
whom the plaintiff interacted on the day in question. The interaction between the
plaintiff and second defendant started the chain of events which led to the
plaintiff’s injury, arrest, and detention.

The issues to be determined on the pleadings

4. The Court is required to determine the merits of the claim at this stage, merits
and quantum having been separated at the outset of the trial. 1 In a joint practice
note agreed to between them shortly before the commencement of the trial the
parties delineated the issues for determination as follows:

4.1. Whether the defendant's employees wrongfully and unlawfully arrested
and detained the plaintiff; and

4.2. Whether the defendant's employees wrongfully and unlawfully shot at the
plaintiff with a firearm, and injured him.

5. As indicated, the shooting, arrest, and detention of the plaintiff by members of the
SAPS are not in dispute. The plaintiff set out, in the particulars of claim, the
bases upon which he relied in claiming that th ese actions constituted unlawful
conduct. It was common cause at the trial that the onus fell on the defendants to
justify their actions in such circumstances to succeed with their defence, and they

1 The bases for the damages claimed in the particulars of claim include unlawful arrest and
detention, shooting and assault, pain, suffering, and contumelia, post -traumatic stress
disorder, and past and future medical expenses.

had the duty to begin. The onus never shifted.2

6. In their defence, and by way of an amended plea 3 4 delivered on the first day of
the trial, the defendants pleaded as follows:5

"20. Without derogating from the generality of the aforesaid, the defendants avers
that the arrest of the plaintiff was for a reasonable cause and was effected in
lawful manner and justified by the provisions contained in section 40(1)(b)
and 49(1) and (2) of the Criminal Procedure Act, 51 of 1977 (‘CPA’) in that:
20.1 the plaintiff committed a crime in front of the second defendant and his
colleague by pointing what appeared to be a firearm at the second
defendant which led him to being chased by the second defendant
and other members of the SAPS and which chase resulted in him
being injured and arrested without a warrant of arrest; and
20.2 the plaintiff sought to defeat the ends of justi ce by failing to stop his
vehicle when he was chased by members of SAPS and despite being
signalled to stop his vehicle by the SAPS members.”

7. Counsel for the plaintiff argued that it appeared over the course of the trial that
the defendants’ evidence did not support the allegations in paragraphs 20.1 and
20.2 of the amended plea . Counsel argued further that t he evidence led in any
event did not assist the defendants in overcoming the requirements of either
section 40(1)(b) or section 49(1) and (2) of the Criminal Procedure Act 51 of 1977
(the CPA), on which the defendants relied in their plea.

8. I proceed to deal with th e requirements of these provisions in the context of the
pleadings and the relevant evidence.


2 See the discussion in Mabaso v Felix 1981 (3) SA 865 (A) ; and see Ntamo and others v
Minister of Safety and Security 2001 (1) SA 830 (T HC) paras 3 and 33) (upheld in Minister of
Safety and Security v Ntamo and others 2003 (1) SA 547 (SCA)).
3 The amended plea differed from the draft set out in the notice of intention to amend, but the

plaintiff elected nevertheless to proceed with the trial in order to avoid another postponement.
4 The plaintiff delivered a replication to the amended plea, and in argument the defendants’
counsel criticized the replication for raising what she regarded as a new cause of action.
Counsel for the plaintiff however disavowed reliance on any perceived new cause of action. It
is thus not necessary to discuss the detail of the defendants’ complaint in this respect.
5 My emphasis.

Sections 40 and 49 of the CPA

9. Sections 40 and 49 of the CPA are pivotal to the present matter.

10. Section 40, which provides for arrests without a warrant in a variety of
circumstances, is relevant to the plaintiff’s claim arising from the alleged unlawful
arrest and detention. It reads, in relevant part, as follows:

“40 Arrest by peace officer without warrant
(1) A peace officer may without warrant arrest any person-
(a) who commits or attempts to commit any offence in his
presence;
(b) whom he reasonably suspects of having committed an offence
referred to in Schedule 1, 6 other than the offence of escaping
from lawful custody;
…
(j) who wilfully obstructs him in the execution of his duty;
…
(2) If a person may be arrested under any law without warrant and subject to
conditions or the existence of circumstances set out in that law, any peace
officer may without warrant arrest such person subject to such conditions or
circumstances.”

11. Before the power to arrest in terms of section 40(1)(b) of the CPA may be
exercised, certain jurisdictional factors must be present, namely:

11.1. The arrestor must be a peace officer;

11.2. The arrestor must entertain a suspicion;

11.3. It must be a suspicion that the arrestee committed an offence referred to in
Schedule 1 of the CPA; and


6 The offences referred to in Schedule 1 to the CPA are listed at the end of this judgment.

11.4. The suspicion must rest on reasonable grounds.7

12. In Mabona and another v Minister of Law and Order and others 8 the Court held,
in relation to the suspicion to be held under section 40(1)(b), as follows:

“The question is whether his suspicion was reasonable. The test of whether a
suspicion is reasonably entertained within the meaning of s 40(1)(b) is objective
(S v Nel and Another 1980 (4) SA 28 (E) at 33H). Would a reasonable man in the
second defendant's position and possessed of the same information have considered
that there were good and sufficient grounds for suspecting that the plaintiffs were
guilty of conspiracy to commit robbery or possession of stolen property knowing it to
have been stolen? It seems to me that in evaluating his information a reasonable
man would bear in mind that the section authorises drastic police action. It authorises
an arrest on the strength of a suspicion and without the need to swear out a warrant,
ie something which otherwise would be an invasion of private rights and personal
liberty. The reasonable man will therefor e analyse and assess the quality of the
information at his disposal critically, and he will not accept it lightly or without
checking it where it can be checked. It is only after an examination of this kind that he
will allow himself to entertain a suspicion which will justify an arrest. This is not to say
that the information at his disposal must be of sufficiently high quality and cogency to
engender in him a conviction that the suspect is in fact guilty. The section requires
suspicion but not certainty. However, the suspicion must be based upon solid
grounds. Otherwise, it will be flighty or arbitrary, and not a reasonable suspicion.”

13. Section 49 of the CPA, in turn, must be considered in relation to the alleged
unlawful shooting. It provides as follows:

“49 Use of force in effecting arrest
(1) For the purposes of this section-
(a) 'arrestor' means any person authorised under this Act to arrest or to

(a) 'arrestor' means any person authorised under this Act to arrest or to
assist in arresting a suspect;
(b) 'suspect' means any person in respect of whom an arrestor has a

7 All of the factors must be present: see Minister of Safety and Security v Sekhoto and another
2011 (5) SA 367 (SCA) para 6, referring to Duncan v Minister of Lawand Order 1986 (2) SA
805 (A) at 818G-H.
8 1988 (2) SA 654 (SE) at 658E-H. My emphasis.

reasonable suspicion that such person is committing or has committed
an offence; and
(c) 'deadly force' means force that is likely to cause serious bodily harm
or death and includes, but is not limited to, shooting at a suspect with
a firearm.
(2) If any arrestor attempts to arrest a suspect and the suspect resists the
attempt, or flees, or resists the attempt and flees, when it is clear that an
attempt to arrest him or her is being made, and the suspec t cannot be
arrested without the use of force, the arrestor may, in order to effect the
arrest, use such force as may be reasonably necessary and proportional
in the circumstances to overcome the resistance or to prevent the suspect
from fleeing, but, in a ddition to the requirement that the force must be
reasonably necessary and proportional in the circumstances, the arrestor
may use deadly force only if-
(a) the suspect poses a threat of serious violence to the arrestor
or any other person; or
(b) the susp ect is suspected on reasonable grounds of having
committed a crime involving the infliction or threatened
infliction of serious bodily harm and there are no other
reasonable means of effecting the arrest, whether at that time
or later.”

14. In Ramasike v Minister of Police9 the Court listed four factors that the Minister is
required to prove to justify the conduct of his members:

“[24] The Minister is required to satisfy four aspects. Firstly, there must have been
an attempt to arrest the suspect . Secondly, the suspect must have resisted the
arrest, fled, or resisted and fled when it was clear to him that an attempt was being
made to arrest him. Thirdly, it must have been impossible to arrest t he suspect
without force . Fourthly, once used, such force must be reasonably necessary and
proportional to overcome the resistance or prevent the suspect from fleeing. In
addition, the arrestor may use deadly force only if ‘(a) the suspect poses a threat of

addition, the arrestor may use deadly force only if ‘(a) the suspect poses a threat of
serious violence to the arrestor or any other person; or (b) the suspect is suspected
on reasonable grounds of having committed a crime involving the infliction or
threatened infliction of serious bodily harm and there are no other reasonable means

9 [2024] ZAGPJHC 991 (26 September 2024) para 24. My emphasis.

of effecting the arrest, whether at that time or later.’”

15. I turn to the facts against this background.

The pleadings and evidence

16. In his particulars of claim, repeated with some variations in his oral evidence, the
plaintiff alleged that on the day in question he was driving his car at Botterboom
Street, Delft when he was stopped by two members of the SAPS, one of whom
was the second defendant, driving in a marked SAPS police bakkie. The second
defendant confronted the plaintiff, and demanded immediate payment of the
amount of R3 000 that the plaintiff owed him . T he plaintiff did not have the
money, but undertook to pay the second defendant in due course . The two
policemen demanded that the plaintiff drive with them in the police bakkie to
Gugulethu Police Station to sign an affidavit committing to pay. The plaintiff
refused and suggested that they go to the nearby police station in Delf t for that
purpose.

17. When the second defendant refused, the plaintiff suggested that they go to his
residence in Khayelitsha to get half of the money owed , but instead (so the
particulars of claim state) the second defendant took out a firearm , and t he
plaintiff too k off in his motor vehicle. In his oral evidence, the plaintiff was
adamant that the second defendant did not, in fact, point a firearm at him.

18. The plaintiff then drove towards Mandalay, followed by the two police officers,
when (according to the particulars of cl aim) the latter suddenly switched on a
police siren whilst following him. In his oral evidence, the plaintiff persisted that
the sirens were not sounding immediately after he had left Delft, but that they
were only switched on some distance from Delft. Thereafter, othe r police
vehicles joined the second defendant and his colleague in following the plaintiff .
Shots were fired at the plaintiff which hit him on the left hip, whereafter the
plaintiff lost control of his motor vehicle and hit a construction site in the area of
Mitchell's Plain.

19. The second defendant came to the plaintiff 's vehicle, pulled him out, started
assaulting him and suggested to his colleague that they should “finish” the
plaintiff off , but before the second defendant could do anything security guards
from the close -by construction site arrived to inquire about the incident. The
Lingelethu police arrived on the scene . According to the particulars of cla im, the
second defendant left with the marked police van and later returned, planting an
imitation firearm on the back seat of the plaintiff’s motor vehicle. In oral evidence
the plaintiff stated that it was not the second defendant who had planted the
firearm, but that he thought that it had been done by other SAPS members on the
scene.

20. The plaintiff was assaulted at the scene by various SAPS members with open
hands, fists, and booted feet , and was told that he was under arrest. The police
took the plaintiff to Lentege ur Hospital, where he was admitted and kept under
police guard.

21. On Saturday, 11 February 2023, the plaintiff was discharged from hospital and
subsequently taken by the members of the SAPS to Har are Police Station in
Khayelitsha, where he was detained at the police holding cells. The plaintiff was
taken to court on 19 February 2023 where the charge against him was
withdrawn, and he was told to go home. He did not appear in court.

22. In their amended plea the defendants answered this narrative to the effect that,
on 10 February 2023 at about 18:00 in the vicinity of Delft area, the second
defendant together with his colleague were on duty in a marked police vehicle .
The second defendant spotted the plaintiff driving his vehicle and followed him to
a nearby house in Delft , where t he second defendant alighted from his vehicle
and approached the plaintiff who was sitting in the driver's seat of his vehicle.

23. A disagreement between the plaintiff and the second defendant (the latter

23. A disagreement between the plaintiff and the second defendant (the latter
confirmed in oral evidence that the plaintiff owed him money) occurred which
resulted in the plaintiff pointing what appeared to be a firearm at the second
defendant. The second defe ndant stepped back from the plaintiff's vehicle , and
the plaintiff sped off.

24. The second defendant , believing that the plaintiff had pointed a firearm at him,
returned to his vehicle and chased after the plaintiff . At the same time he called
the police station for backup , reporting that the plaintiff had pointed a gun at
pointed him . Other police vehicles , with siren s ringing, joined in the highspeed
chase signalling for the plaintiff to stop his vehicle. The plaintiff refused to stop his
vehicle and instead increased his speed. Even when gunshots were fired in the
direction of the plaintiff's vehicle , he refused to stop. The chase continued and at
or near Swartklip Road before the cemetery, the plaintiff lost control of his vehicle
at a construction site. The plaintiff alighted from his vehicle with a gunshot wound
on his upper thigh or hip. The second defendant , in the presence of the plaintiff
and other police officials at the scene, searched the plaintiff's vehicle and found a
toy gun inside his vehicle.

25. An ambulance arrived and the plaintiff was taken to Mitchell's Plain Hospital
under police guard. His vehicle was impounded on the charge of possession of a
firearm.

26. On Saturday, 11 February 2023, the plaintiff was discharged from hospital and
detained at Harare Police Station, Khayelitsha.

27. The plaintiff's evidence established that he had been arrested and detained, and
that he had been shot at by SAPS members. During his cross -examination, and
in the course of argument, various discrepancies between his evidence and the
allegations in his particulars of claim (a s well as the warning statement he had
made at SAPS) were pointed out to him. I have alluded to most of them already.
They are, in particular, whether the second defendant had a firearm, whether he
had been stopped by the police or whether the police followed him and
approached him af ter he had stopped; whether the police had chased him; the
issue of when the police sounded off their siren during the chase; that the J88 did

issue of when the police sounded off their siren during the chase; that the J88 did
not record injuries resulting from an assault in custody which the plaintiff testified
about;10 and the issue of whether the toy firearm was planted in his vehicle, and if

10 The plaintiff’s claim did not include damages arising from such alleged assault.

so, by whom.

28. These discrepancies are , however, not significant when considering the issues
for determination as formulated by the parties in their joint minute. The particulars
of claim do not constitute evidence, and – apart from certain factual details - the
arrest, detention , and shooting are not in dispute. The evidence established ,
further, that the plaintiff’s warning statement was written by a member of SAPS.
It was never read back to him, and the plaintiff did not sign the part of the
statement which confirms the correctness thereof.

29. Overall, the plaintiff’s evidence was clear. He did not materially contradict himself
on the witness stand , despite rigorous cross -examination. He made concessions
where required. His demeanor was calm , and he answered all the questions ,
explaining the discrepancies, which appears to have occurred in the course of the
drafting of the particulars of claim. His explanation was not so inherently
improbable that it could be rejected out of hand.

The lawfulness of the plaintiff’s arrest and detention

The arrest

30. As indicated , the defendants pleaded in paragraph 20 of their plea that the
plaintiff’s arrest without a warrant was justified under section 40(1)(b) because he
was suspected of having committed a crime listed in Schedule 1 to the CPA.
Such crime involved the pointing of what SAPS at the time believed to be a
firearm, and seeking to defeat the ends of justice by trying to flee.

31. The second defendant testified that , when he first confronted the plaintiff, the
plaintiff pointed at him with what he ( the second defendant) t hought was a
firearm. He further testified that after the plaintiff had been shot at during the
chase, a toy firearm was found during a search of the vehicle. The s econd
defendant immediately proceeded to open a docket at the scene. The charge on
the docket is stated as being “possession of a firearm”.

32. It is common cause that a threat with a firearm or dangerous weapon as defined
in section 1 of the Dangerous Weapons Act 15 of 2013 is included in Schedule 1
to the CPA. A “dangerous weapon” is defined to mean "any object, other than a
firearm, capable of causing or inflicting serious bodily harm, if it were used for an
unlawful purpose."

33. The plaintiff denies having pointed anything at the second defendant, but I shall –
for the moment - accept the second defendant’s evidence in this respect for the
sake of the argument. What is pivotal is that t he second defendant admitted that
when he opened the docket he already knew that the firearm was not real. On the
defendants’ version, SAPS realized that it was a toy upon its discovery in the
vehicle. The charge indicated on the docket was therefore obviously wrong.

34. In other words, the second defendant had the opportunity to analyse and assess
the information at his disposal at the scene. He had the opportunity to check what
he had thought was a firear m. After realizing that the item which the plaintiff had
pointed at him (if the second defendant’s evidence regarding the pointing is to be
accepted) was not a firearm , he could at that stage no longer have entertained
any suspicion that a firearm had been pointed at him . Constable Khupiso stated
that he, too, that he became aware at the scene of the fact that the firearm was a
toy.

35. A peace officer who fails to substantiate his suspicion when he is able to do so,
does not act reasonably. 11 I agree with the submission by the plaintiff’s counsel
that the information at the second defendant's disposal could not have justified
the plaintiff’s arrest for possession of a firearm. The suspicion was not based on
solid grounds – quite the contrary. It therefore did not meet the test in Mabona,
to which I have referred earlier. It follows that the plaintiff’s arrest did not meet a ll
of the jurisdictional requirements set out in Sekhoto for an arrest lawfully to be

of the jurisdictional requirements set out in Sekhoto for an arrest lawfully to be
effected under section 40(1)(b) of the CPA . On the facts, there could not be any
reasonable suspicion of an offence referred to in Schedule 1 of the C PA having
been committed.

11 Barnard v Minister of Police [2019] 3 All SA 481 (ECG) para 35.

36. The plaintiff was, moreover, never charged with pointing at the second defendant
with the toy firearm, or any firearm for that matter. The exhibit register was never
presented to court to confirm that the alleged toy firearm was ever registered as
an exhibit. The plaintiff was also not charged with defeating the ends of justice, or
with reckless or negligent driving, or even driving above the speed limit.

37. It seems to me, in an y event, that the contention that the plaintiff pointed an
object at the second defendant which the latter thought was a firearm should not
be accepted. The second defendant described what he thought was a firearm
and stated that plaintiff did the pointing whilst seated in his vehicle. After seeing
what he thought was a firearm, the second defendant immediately retreated to
the police vehicle which was parked behind the plaintiff's vehicle. He called his
colleagues on the radio and told them that he had be en " gunpointed'' by the
plaintiff. Under cross-examination, when asked if he told the other police officers
that he was in danger from the plaintiff, the second defendant said that he did not
do so, but that the other police officers would have inferred t he danger from the
word “gunpointed”.

38. The second defence witness, Constable K hupisho, however claimed he was the
one who had radioed the other police officers, telling them what had happened.
Constable Khupisho said that the police vehicle was parked beh ind the plaintiff's
vehicle, and yet he (Constable K hupisho) could also see the firearm being
pointed at the second defendant, to the extent that he was able to describe it.
This is simply improbable.12

The detention


12 See Stellenbosch Farmers' Winery Group Ltd and another v Martell et Cie and others 2003
(1) SA 11 (SCA) para 5. See also April v Minister of Safety and Security [2008] 3 All SA 270
(SE) para 15: "[15] ...There are before me two mutually destructive versions. The defendant

(SE) para 15: "[15] ...There are before me two mutually destructive versions. The defendant
must discharge the onus of proving that when his version is tested against the inherent
improbabilities, the indisputable facts and the credibility of all the witnesses, I can conclude
with conviction that it is more credible and probable and should be accepted, and that the
other version is false. The defendant 's version does not in my view pass the test. At best for
him, there are probabilities and improbabilities either way, with no cl ear balance in the
defendant's favour. If anything, I think the balance favours the plaintiff's version."

39. I turn to the plaintiff’s detention. The second defendant did not follow up with the
investigating officer about the developments in the case. After the plaintiff was
arrested, the second defendant did not take the plaintiff to court , and was not
aware that the plaintiff never appeared in court. He did, as at the hearing of the
action, not know what had happened to the criminal case against the plaintiff. His
attitude is hardly one expected of someone who arrested the plaintiff with the
intention of takin g him to court. In fact, during his evidence -in-chief the second
defendant did not even testify about the plaintiff’s arrest and detention. His
reasons for arresting and detaining the plaintiff only came out in cross -
examination, and did not include taking the plaintiff to court.

40. The defendants bore the burden to justify the deprivation of liberty, whatever form
it may have taken. Once a plaintiff establishes that an interference has occurred,
the burden falls upon the person causing the interference to establish a ground of
justification:13

“[24] There is another, more important reason why this Court should rule in the
applicant’s favour. The Constitution14 enshrines the right to freedom and security of
the person, including the right not to be deprived of freedom arbitrarily or without just
cause, as well as the founding value of freedom. Accordingly, it was sufficient in this
case for the applicant simply to plead that he was unlawfully detained. This he did.
The respondents then bore the burden to justify the deprivation of liberty, whatever
form it may have taken.
[25] This is not something new in our law. It has long been firmly established in our
common law that every interference with physical liberty is prima
facie unlawful. Thus, once the claimant establishes that an interference has occurred,
the burden falls upon the person causing that interference to establish a ground of

the burden falls upon the person causing that interference to establish a ground of
justification. In Minister van Wet en Orde v Matshoba, the Supreme Court of Appeal
again affirmed that principle, and then went on to consider exactly what must be
averred by an applicant complaining of unlawful detention. In the absence of any
significant South African auth ority, Grosskopf JA found the law concerning the rei
vindicatio a useful analogy. The simple averment of the plaintiff’s ownership and the
fact that his or her property is held by the defendant was sufficient in such cases.

13 Zealand v Minister of Justice and Constitutional Development and another 2008 (4) SA 458
(CC) paras 24-25. My emphasis.
14 See section 12(1)(a) of the Constitution.

This led that court to conclud e that, since the common law right to personal freedom
was far more fundamental than ownership, it must be sufficient for a plaintiff who is in
detention simply to plead that he or she is being held by the defendant. The onus of
justifying the detention then rests on the defendant. There can be no doubt that this
reasoning applies with equal, if not greater, force under the Constitution.”

41. The constitutional right entrenched in section 12(1)(a) of the Constitution requires
not only that every encroachment on physical freedom be carried out in a
procedurally fair manner, but also that it be substantively justified by acceptable
reasons. The breach of this provision is sufficient to render the plaintiff’s
detention unlawful for the purposes of a delictual cl aim for damages. Thus, once
it is clear that the detention is not justified by acceptable reasons and is without
just cause in terms of section 12(1)(a) of the Constitution, the plaintiff's right not
to be deprived of his freedom is established. This woul d render his detention
unlawful.15 I have, in any event, found that the plaintiff’s arrest was unlawful.
The detention followed directly as a result of such unlawful arrest.

42. The purpose of an arrest is to take the suspect into custody to be brought before
court as soon as possible on a criminal charge. Arrest is not an object in itself,
but is merely an optional means of bringing a suspected criminal before court. 16
The second defendant was the arresting officer. A consideration of his evidence
reveals, however, that his purpose in arresting the plaintiff was not to take plaintiff
to court.

43. In the defendants' amended plea ,17 they “put the plaintiff to the proof ” in respect
of his allegations to the effect that the arrest and detention were wrongful and
unlawful. This position is not corr ect - the plaintiff has no such duty. On a
consideration of the salient evidence, I am of the view that the defendants failed

consideration of the salient evidence, I am of the view that the defendants failed
to discharge the onus in respect of the plaintiff’s arrest and detention.

The lawfulness of the shooting

15 Woji v Minister of Police 2015 (1) SACR 409 (SCA) paras 25 and 27.
16 Ex parte Minister of Safety and Security and others: In re S v Walters and another 2002 (4)
SA 613 (CC) para 49.
17 Para 19.

44. Section 12(1)(c) of the Constitution provides that everyone has the right to be
free from all forms of violence from either public or private sources. The basis of
the defendants’ defence in relation to the alleged unlawful shooting as pleaded in
their amended plea is section 49(1) and (2) of the C PA. The applicable law on
section 49 is set out in Govender v Minister of Safety and Security18 and Ex parte
Minister of Safety and Security and others: In re S v Walters and another.19 20

45. The onus to establish the justification for the use of deadly force as contemplated
in section 49 of the CPA in the course of a police officer carrying out such an
arrest rests on the defendants. The kind of detail justifying the application of
deadly force is peculiarly within the defendants' own knowledge , and only they
can explain why they employed the degree of force in question.21

46. In Walters22 the Constitutional Court state the law regarding justification of use of
lethal force in arresting suspects as follows:

“[54] In order to make perfectly clear what the law regarding this topic now is, I
tabulate the main points:
(a) The purpose of arrest is to bring before court for trial persons
suspected of having committed offences.
(b) Arrest is not the only means of achieving this purpose, nor always the
best.
(c) Arrest may never be used to punish a suspect.
(d) Where arrest is called for, force may be used only where it is
necessary in order to carry out the arrest.
(e) Where force is necessary, only the least degree of force reasonably

18 2001 (4) SA 273 (SCA).
19 2002 (4) SA 613 (CC).
20 Both judgments were delivered before, and were responsible for, the amendment of section
49, and are instructive on how to interpret the section. The amendment redefined section 49
in the Criminal Procedure Amendment Bill GN 949 in GG 33619 of 7 October 2010, and was
subsequently promulgated.
21 Dyibishe v Minister of Police [2023] ZAECGHC 94 (5 October 2023) para 22, read with the

21 Dyibishe v Minister of Police [2023] ZAECGHC 94 (5 October 2023) para 22, read with the
content of fn 18 of that judgment.
22 Supra para 54. The footnotes are mine.

necessary to carry out the arrest may be used.23
(f) In deciding what degree of force is both reasonable and necessary, all
the circumstances must be taken into account, including the threat of
violence the suspect poses to the arrester or others, and the nature
and circumstances of the offence the suspect i s suspected of having
committed; the force being proportional in all these circumstances.24 25
(g) Shooting a suspect solely in order to carry out an arrest is permitted
in very limited circumstances only.
(h) Ordinarily such shooting is not permitted unless the suspect poses a
threat of violence to the arrester or others or is suspected on
reasonable grounds of having committed a crime involving the
infliction or threatened infliction of serious bodily harm and there are
no other reasonable m eans of carrying out the arrest, whether at that
time or later.26
(i) These limitations in no way detract from the rights of an arrester
attempting to carry out an arrest to kill a suspect in self -defence or in
defence of any other person.”

47. Section 1 of the Firearms Control Act 60 of 2000 defines an "imitation firearm" to
mean " anything that has the appearance of a firearm but is not capable of
operating as such and cannot by superficial examination be identified as an
imitation."

48. Section 120(6)( b) of the Firearms Control Act provides inter alia that: "It is an

23 See April v Minister of Safety and Security [2008] 3 All SA 270 (SE) paras 2, 5, 8, and 9, to
the effect that this requirement is generally interpreted as meaning that whatever force used
must have been the only viable alternative to guarantee a successful arrest. If any other
means of carrying out the arrest was available to the arrestor, those means should have been
exhausted. In addition, the arrestor must, before discharging a firearm at a suspect , issue a
verbal warning followed by the discha rge of a warning shot. In the event that this does not

verbal warning followed by the discha rge of a warning shot. In the event that this does not
have the desired effect, the arrestor should direct a shot at the lower extremities of the
suspect, rather than the rest of the body.
24 See the discussion in Matlau v Makhubedu 1978 (1) SA 946 (A) to the effect that where a
member who performs an official act is authorised by law to use force, he or she may use
only the minimum of force which is reasonable in the circumstances.
25 See also Govender v Minister of Safety and Security supra para 21, to the effect that the force
should not only be proportional to the seriousness of the crime the suspect is thought to have
committed, but also to the threat or danger the suspect poses to the arrestor, bystanders and
society as a whole.
26 See Govender v Minister of Safety and Security supra para 24, to the effect that for the use of
force to be justified, an immediate threat of serious bodily harm to the arrestor or the public
had to exist.

offence to point anything which is likely to lead a person to believe that it is a
firearm, at any other person , without good reason to do so. " Section 120(10)(b)
provides that "It is an offence to be in possession of any … imitation firearm, with
intent to commit an offence or to use the ... imitation firearm to resist arrest..."

49. All of this is undisputed.27

50. I have already indicated that I do not accept the defendants’ evidence regarding
the pointing of a gun at the second defendant at the time of their meeting at Delft.
Even if , however, the defendants’ version is accepted, the question remains
whether those facts justified the use of lethal force against t he plaintiff. 28 The
firing of a shot at a suspect is potentially fatal, especially when, on the
defendants’ version, it occurred whilst everyone in question were driving at a high
speed. The lawfulness of the act does not depend on the more or less fortuitous
result thereof. 29 It therefore does not matter that the plaintiff was merely
wounded, and not killed.

51. I have mentioned that the second defendant opened the docket at the scene of
the shooting immediately after the shooting, and never charged t he plaintiff with
the pointing of a firearm (or a toy firearm). It is thus improbable that there had
been such a threat of serious violence made, or any crime committed involving
the infliction of serious bodily harm.

52. In argument the defendant’s counsel placed emphasis on the fact that the plaintiff
was injured in the hip, submitting that this indicates that the police officers in
question tried to aim at the plaintiff’s tyres. This is, however, speculation. The
second defendant was adamant that he did n ot know why the unknown police
officers shot the plaintiff, and stated in cross examination that he could not
answer for them. Constable Khupisho could also not provide an explanation.


27 Section 120(6)(b) and 1201 0)(b) are not offences referred to in Schedule 1 to the CPA, and

can therefore not be relied upon by the defendants under section 40(1)(b) of the CPA in
relation to the plaintiff’s arrest.
28 Ntamo and others v Minister of Safety and Security supra paras 19-21.
29 Govender v Minister of Safety and Security supra para 20.

53. The second defendant testified that he did not tell the other police officers who
followed the plaintiff that he (the second defendant) was in any danger, and
suggested that they m ust have assumed so because he told them at the
beginning, when they started to chase the plaintiff, that a gun had been pointed at
him. As indicated, however, Constable Khupisho subsequently testified that he
was one who had made the call. H e also did not tell anyone that they were in
danger from the plaintiff.

54. There is another important aspect. According to the defen dants’ evidence, the
shooting took place about 15 minutes after they had left their starting position at
Delft. There is no indication that 15 minutes after leaving Delft the second
defendant was still in any danger (assuming that some danger had existed at
Delft) of being shot at by the plaintiff . SAPS fired four to five shots at the plaintiff
while he was driving away . The shots were fired by police officers in a vehicle or
one of the vehicles driving in front of the vehicle driven by the second defendant.
There is no evidence of any warning shots having been fired . Constable
Khupisho suggested that after they had left Delft, the plaintiff point ed the firearm
at them as they were following him . This is not a sensible suggestion – why
would the plaintiff poin t a toy firearm at two armed police officers chasing him
while driving at high speed? In any event, the second defendant never testified
about this alleged second pointing of a firearm or toy firearm.

55. Shooting multiple shots at the plaintiff at this junct ure in these circumstances,
even if he was fleeing and sirens were blazing from the outset as the defendants
testified, was in my view not proportionate.

56. In the course of their cross-examination, the defence witnesses suggested that
the plaintiff was driv ing recklessly, and was a danger to other road users . It was
also suggested that he was driving above the speed limit of 60km per hour :

also suggested that he was driving above the speed limit of 60km per hour :
Constable Khupisho testified that plaintiff was driving at between 60 and 80km
per hour; the second defendant said he w as driving at 100km per hour. This
evidence does not assist the defendants’ case, and reckless driving was in any
event not pleaded as justification for the defendants’ conduct (I have quoted
paragraph 20 from the amended plea, which contains the pleaded grounds of

justification). It nevertheless raises the question whether police officers are
allowed to shoot drivers who drive above the speed limit ? If the shooting of the
plaintiff was because of driving above the speed limit and driving recklessly, was
the shooting proportional to the alleged contraventions of road traffic laws? I
agree with the submission by the plaintiff’s counsel that, even if the Court accepts
that the p laintiff was driving above the speed limit, or driving recklessly (there is
no evidence at which part of the chase this happened), the following dictum from
Ntamo and others v Minister of Safety and Security30 is apposite:

“[33] On the issue of the wrongfulness of resorting to lethal force, as opposed to
some lesser form of force, a lot turns on the specific facts of each case and the
person relying on private defence must proffer such facts as may justify the use of
that force. No facts were placed before me explaining why the police did not shoot at
the deceased's legs. There was no suggestion that shooting at the deceased's legs
would not have neutralised him. Even if this was an emergency and the police had to
act swiftly, they still could have shot at the legs and, for all we know, that might have
yielded the desired result. In doing so, they could have used the exact same time
they used in shooting at the torso. They have failed to explain why they did not do so.
They have thus failed to justify their use of lethal force. Whilst appreciating that the
life-threatening situation would in all probability affect one's calm and proper
judgment and that, therefore, this should come into the equation, surely the boni
mores by no means make light of the sanctity of life, and that includes the life of the
aggressor. It can never be that any person who whips out a firearm and threateningly
points it at the police apparently intent on shooting them is fair game to be shot and
killed by the police. The police must justify their resorting to lethal force. In this regard

killed by the police. The police must justify their resorting to lethal force. In this regard
examples of factors that may be relevant are the following:
(i) the imminence of the danger;
(ii) how threatening the danger is to life or limb;
(iii) the nature of the instrument, if a ny, the attacker is using in waging the
unlawful attack;
(iv) the proximity of the attacker and the attacked;
(v) the mobility of the attacker and the celerity of his/her movement; and
(vi) how easy or difficult it would be to apply force to a less delicate part o f the
body.”

30 Supra para 33. My emphasis.

57. As indicated earlier, the plaintiff was never charged with reckless and or negligent
driving, or with driving above the speed limit. Did the police actually believe that
he committed these offences; and were such offences the reason he was shot?
Clearly not.

58. Any shortcomings in the defendants' evidence must be laid at their own door.
After the close of both the defendants’ and the plaintiff’s respective cases, and in
fact after the plaintiff’s heads of argument had been delivered, the defendants
applied to reopen their case. The applicable legal principles were set out in
Gamble Investments (Pty) Ltd v Santam Ltd and another31 as follows:

“[5] Once a party has closed its case it will not generally be allowed to lead further
evidence save in rebuttal. The court, however, has a discretion, to be exercised
judicially, to allow a party to re -open its case and to lead such further evidence.
Several considerations are to be weighed in the exercise of the discretion.
[6] In Mkwanazi v van der Merwe and Another which dealt with the discretion to
permit further evidence to be led in terms of Rule 28(11) of the Magistrates' Courts
Rules, the court held that th e Supreme Court (as the High Court was then named)
has an inherent discretion to allow a party to re -open its case. Reference was made
to Oosthuizen v Stanley where the following is stated:
‘Several considerations have a bearing on the exercise of such dis cretion, for
instance, the reason for the plaintiff's failure to call the witness before, the danger of
prejudice to the opposite party owing to his being no longer able to bring back his
witnesses, and, of cause the materiality of the evidence. In an application for leave to
lead fresh evidence in this court the test as to materiality laid down in Colman v
Dunbar (1933 AD 141) is that the evidence tendered and such that it would be
practically conclusive. In a trial court, however, in my judgment, the test of materiality

practically conclusive. In a trial court, however, in my judgment, the test of materiality
should be held to be satisfied where the evidence tendered, if believed, is material
and likely to be weighty.’"

59. In the present m atter, it appeared that from the affidavits delivered in support of
the application that the defendants had left their investigation and trial preparation
to the last minute.

31 [2020] ZAECPEHC 9 (28 April 2020) paras 5-6.

60. They had been informed about the plaintiff’s intention to institute action in June
2023 already, when the plaintiff’s attorney sent a notice under section 3 of the
Institution of Legal Proceedings against Certain Organs of State Act 40 of 2002.
Summons wa s issued in November 2023, and the defendants delivered a plea
during March 2024 (this plea was amended during January 2025) – presumably
with the input of these officers, given their integral involvement in the events that
occurred on 10 February 2023. 32 The parties agreed on a joint practice note in
January 2025, defining the issues for determination.

61. It must have been overwhelmingly clear throughout this process that the
evidence of the police officers who had fired at the plaintiff would be required a t
the trial. Those officers were (when the action was instituted and even at the
time of the hearing) still employed by SAPS, and they were thus readily available
to the defendants. It does not matter that the plaintiff’s particulars of claim
alleged that the second defendant was one of the SAPS members who had shot
at him – those allegations had been denied from the outset , even in the
unamended plea. The plaintiff had the duty to begin at that stage, and the onus
to prove that the shooting had taken pl ace. The defendants must have been
ready to rebut any such evidence, given the denial of the shooting in their plea.
The onus later shifted because of the amendment to the defendants’ plea.

62. There was no explanation on the papers as to why the evidence of these officers
had not been procured timeously , except that the investigat ing officer in the
matter had resigned in September 2024, and the docket could not be found .
There is no explanation of the steps taken over the preceding months to loca te
the docket. In the course of the trial the second defendant testified expressly and
repeatedly that he could not answer for the officers who had fired the shots.

repeatedly that he could not answer for the officers who had fired the shots.
Even then, no postponement was sought to allow those officers to come to court
to give evidence.

63. The overwhelming impression was that their evidence was sought to be
introduced at that very late stage – before their own heads of argument were due

32 As counsel for the plaintiff put it, the plea could not have been a “thumbsuck”.

- to relieve the pinch of the shoe, and effectively to serve as rebuttal witness es in
relation to the plaintiff’s evidence. In these circumstances, no proper case had
been made out for the relief sought, and the application was dismissed, with
costs, including counsel’s fees taxed on Scale C.

64. In the present matter, therefore, there was no evidence to the effect that:

64.1. Any attempt was made to arrest the plaintiff, or to make him aware that
he was under arrest , prior to the shooting . It is common cause that the
shooters were unknown police officers who were not the arrest ing
officers. They l eft the scene soon after the plaintiff was out of the
vehicle he was driving. Their statements were never taken , and they
did not testify during the hearing.

64.2. The police officers who shot at the plaintiff did so in order to arrest him.

64.3. The police officers who shot the plaintiff suspected that the plaintiff was
a suspect as defined in section 49(1) (b), i.e ., that they (and not the
second defendant or Constable Khupisho) had a reasonable suspicion
that the plaintiff was committing or had committed an offence. The
Court is unable to determine if their actions were objectively
reasonable at the time the plaintiff was shot.

64.4. The plaintiff posed an imminent threat of serious v iolence to the
arrestor or any other person at the time he was driving away, which
made it immediately necessary to use lethal force against him,33 or that
the plaintiff was suspected on reasonable grounds of having committed
a crime involving the inflicti on or threatened infliction of serious bodily
harm.

64.5. There were no other reasonable means of effecting the arrest, whether

33 See April v Minister of Safety and Security supra paras 6-7. There is no version from which it
could be inferred that the officers had reasonable grounds to believe that the shooting was
immediately necessary to protect them from the plaintiff.

at that time or later.

65. The first defendant effectively has no reasonable explanation why the plaintiff
was shot , even taking into ac count the evidence provided by the second
defendant and Constable Khupisho, from which counsel argued could be inferred
that the SAPS members who fired did so because they were trying to stop the
plaintiff fleeing with a gun . Counsel for the defendants submitted further that it
could reasonably be inferred from the objective facts that the plaintiff again
committed the same crime that he had committed in Delft , and pointed his
imitation firearm in the direction of the police of ficers who fired with the hope of
preventing them from overtaking his vehicle and thereby blocking his way , as at
that time it had dawned upon the plaintiff that he was in serious trouble. He did
not want to be arrested and found in possession of the imita tion firearm in his
vehicle. I do not agree – drawing these inferences from the facts before the Court
is a bridge too far.

66. In these circumstances, the requirements of section 49(2) have not been met.

Conclusion and costs

67. In all of these circumstances, I am of the view that the plaintiff has established his
case, and that he is entitled to damages – in such quantum as may be proved in
due course – on the bases set out in the particulars of claim in relation to the
shooting, the unlawful arrest, and unlawful detention.

68. It was common cause that the second defendant had acted in the course and
scope of his employment with SAPS at the time. In the premises, the first
defendant is vicariously liable for damages arising from the second defendant’s
conduct.34

69. There is no reason why the general rule as to costs should no t be followed, that
is, that costs should follow the result. In the exercise of my discretion, I am of the

34 See the discussion in K v Minister of Safety and Security 2005 (6) SA 419 (CC).

view that counsel’s fees should be taxed on Scale C.

Order

70. In the circumstances, it is ordered that:

70.1. The plaintiff was wrongfully and unlawfully shot at, arrested , and
detained by members of the South African Police Service on 10
February 2023.

70.2. The first defendant is liable to the plaintiff for such damages as may be
proven in due course in relation each of the heads of damages (insofar
as they relate to the unlawful shooting, arrest and detention) set out in
paragraph 21 of the plaintiff’s particulars of claim.

70.3. The first defendant shall pay the costs of the hearing on the merits,
with counsel’s fees to be taxed on Scale C.


____________________
P. S. VAN ZYL
Acting Judge of the High Court
Appearances:

For the plaintiff: Mr S. X. Mapoma SC , instructed by Boto
Molefe and Associates Inc.

For the defendants: Ms L. X. Dzai, instructed by the State
Attorney

OFFENCES LISTED IN SCHEDULE 1 OF THE CPA

1. Treason
2. Sedition
3. Public violence

4. Murder
5. Culpable homicide
6. Rape or compelled rape as contemplated in sections 3 and 4 of the Criminal
Law (Sexual Offences and Related Matters) Amendment Act, 2007,
respectively
7. Sexual assault, compelled sexual assault or compelled self -sexual assault as
contemplated in section 5, 6 or 7 of the Criminal Law (Sexual Offences and
Related Matters) Amendment Act, 2007, respectively
8. Any sexual offence against a child or a person who is mental ly disabled as
contemplated in Part 2 of Chapter 3 or the whole of Chapter 4 of the Criminal
Law (Sexual Offences and Related Matters) Amendment Act, 2007,
respectively
9. Trafficking in persons as provided for in section 4 and involvement in the
offence as p rovided for in section 10 of the Prevention and Combating of
Trafficking in Persons Act, 2013
10. Bestiality as contemplated in section 13 of the Criminal Law (Sexual Offences
and Related Matters) Amendment Act, 2007
11. Robbery
12. Kidnapping
13. Childstealing
14. Assault-
(a) when a dangerous wound is inflicted;
(b) involving the infliction of grievous bodily harm; or
(c) where a person is threatened-
a. with grievous bodily harm; or
b. with a firearm or dangerous weapon, as defined in section 1 of the
Dangerous Weapons Act, 2013 (Act 15 of 2013)
15. Arson
16. Malicious injury to property
17. Breaking or entering any premises, whether under the common law or a
statutory provision, with intent to commit an offence
18. Theft, whether under the common law or a statutory provision
19. Receiving stolen property knowing it to have been stolen
20. Fraud
21. Forgery or uttering a forged document knowing it to have been forged
22. Offences relating to the coinage
23. Any offence, except the offence of escaping from lawful custody in
circumstances other than the circumstances referred to immediately
hereunder, the punishment wherefor may be a period of imprisonment
exceeding six months without the option of a fine

exceeding six months without the option of a fine
24. Escaping from lawful custody, where the person concerned is in such custody
in respect of any offence referred to in this Schedule or is in such custody in
respect of the offence of escaping from lawful custody
25. Offences referred to in se ction 4(1) and (2) of the Prevention and Combating
of Torture of Persons Act, 2013
26. Offences referred to in Chapter 2 of the Protection of Constitutional
Democracy against Terrorist and Related Activities Act, 2004 (Act 33 of 2004)
27. Any conspiracy, incitement or attempt to commit any offence referred to in this
Schedule