SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
Case Number: 2018/1830
In the matter between: -
TINEI RAPHAEL CHINODAKUFA First Plaintiff
SHOW MABVIREKARE Second Plaintiff
JOSEPH BUTOYI Third Plaintiff
and
THE MINISTER OF POLICE Defendant
JUDGMENT
Van Aswegen AJ
INTRODUCTION:
(1) REPORTABLE: YES / NO
(2) OF INTEREST TO OTHER JUDGES:
YES/NO
(3) REVISED: YES/NO
__________ _________________________
DATE SIGNATURE
2
[1] This case pertains to a shooting incident that took place on 25 September
2017, on Derby Road in Betrams.
[2] The First and Second Plaintiffs were passengers in a Nissan Micra motor
vehicle with registration GSD […], at the relevant time being driven by the
Third Plaintiff when they were shot and injured by members of the South
African Police.
[3] The Plaintiffs' claim is predicated on the allegation that the shooting of the
First and Second Plaintiffs was unlawful. In the alternative, it is asserted that
even if the shooting was justified, the police officers acted negligently.
[4] The Plaintiffs contend that, as a consequence of the unlawful or, alternatively ,
negligent conduct of the police officers who discharged their firearms, they
have suffered damages.
[5] The First Plaintiff and Second Plaintiff each claim dam ages in the amounts of
R954 500.00 and R754 700.00, respectively.
[6] The Defendant in response alleged that its members shot at the Nissan Micra
vehicle in order to cause it to stop and that it was not targeted at the Plaintiffs.
[7] The SAP members raised as a defence justification and plead that they acted
pursuant to section 49(2) of the Criminal Procedure Act, Act 51 of 1977, cited
here in below:
“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
assist in arresting a suspect;
(b) 'suspect' means any person in respect of whom an arrestor has a
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.
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49 (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 suspect 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 addition 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 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 of effecting the arrest,
whether at that time or later.
[S. 49 substituted by s. 7 of Act 122 of 1998 (wef 18 July 2003) and by s. 1
of Act 9 of 2012 (wef 25 September 2012).]
[8] It was argued that the shooting was reasonable and justifiable due to the
alleged threat to the lives of the SAP members.
SEPARATION OF MERITS AND QUANTUM:
[9] The parties had agreed:
[9.1] to address liability and quantum separately.
[9.2] that the burden of establishing justification rested on the Defendant.
[10] This court is accordingly tasked solely with determining the issue of liability.
COMMON CAUSE FACTS:
[11] The Plaintiffs and the Defendant mutually agreed upon the following facts as
being common cause:
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[11.1] The locus standi and the citation of the parties.
[11.2] Vicarious liability of the Defendant for the acts and omissions of the
members.
[11.3] The First and S econd Plaintiffs were rear end passengers in the
Nissan Micra.
[10.3.1] The First P laintiff was seated behind the driver and the
Second Plaintiff behind the front passenger.
[11.4] The shooting was preceded by an incident which:
[11.4.1] occurred around the corner at Sydney Street.
[11.4.2] was not seen by any of the SAPS members.
[11.4.3] involved a lady and a man squabbling – the latter was
identified as “Odar”.
[11.4.3.1] Odar was sprayed in his face with pepper
spray. He ran onto First Street, pursued by
three women and two men.
[11.4.3.2] The incident led to individuals obstructing
Sydney Street.
[11.4.3.3] The Nissan Micra passed the squabble
and turned south onto First Street as the
police vehicle approached from the north.
[11.4.3.4] Odar crossed First Street and got into the
front passenger seat of the Nissan.
[11.4.3.5] The police vehicle stopped, and the police
officers - Muhlari and Maponyane exited
from the rear of the vehicle. Both police
officers discharged their firearms, each
firing two shots.
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[11.4.3.6] After the shooting the Nissan Micra
stopped just beyond the corner of the two
streets at the lowest point in First Street.
[11.4.3.7] Muhlari, Maponyane, and two other crew
members went to the Nissan Micra and
discovered:
[11.4.3.7.1] The Plaintiffs had sustained
gunshot injuries.
[11.4.3.7.2] No firearms were found in or
around the Nissan Micra.
[11.4.3.8] Neither of the occupant s of the Nissan
Micra were acquainted with the runner,
Odar, and no connection had been
established between the runner and the
occupants.
PLEA:
[12] In its Plea the Defendant s plead and relied upon the following pertaining to
the shooting incident:1
“[3.1] On or about 25 September 2017 at around 21:05 the members of
the South African Police Services ("SAPS") were patrolling along
1st Street when they noticed three African females and two African
males chasing one African male while screaming for help.
[3.2] As the members of SAPS stopped and made a U-turn as they were
travelling
on the Northern direction.
[3.3] The members of SAPS saw the yellow Nissan Micra with
registration letters
and numbers GSD[…] driving on a high speed,
1 009-15 at Ad Paragraph 5
6
stopped and an African male who was being chased jumped into
the yellow Nissan Micra.
[3.4] The Members of the Defendant were travelling in a white marked
SAPS motors vehicle with blue lights on and sirens tried to stop the
yellow Nissan Micra, but it did not stop.
[3.5] At all material times the SAPS vehicle was clearly visible as it was
marked and had its blue lights on.
[3.6] The members of the Defendant chased the yellow vehicle, but it
was travelling on a high speed until the members of SAPS fired
warning shots aiming at the tyres of the motor vehicle as a
precautionary measure in order to caution the occupants in the
yellow vehicle to stop.
[3.7] As a result, therefore the Members of the SAPS had a reasonable
belief that the occupants travelling in the yellow vehicle were
involved in the commission
of the crime and reasonably believed
that their lives were in danger under the
circumstances.
[3.8] The members of SAPS acted within the ambits of Section 49 (2) of
the Criminal Procedure Act 51 of 1977 in effecting arrest.
[3.9] The Defendant pleads that the fired shots were not targeted at the
Plaintiffs but at the motor vehicle in order to stop it from fleeing in
order to arrest the
suspects.
[3.10] The shooting was reasonable and justified in the circumstances for
preventing the suspects from fleeing and resisting arrest.
[3.11] The African male who jumped into the yellow vehicle was later
identified as Oder after the yellow motor vehicle stopped.
[3.12] The Driver of the yellow vehicle was identified as Joseph Butoyi.
[3.13] Both Odar and Joseph were then arrested and detained at Jeppe
Police.
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[3.14] The Members of the SAPS in carrying out their duty acted
reasonably under the prevailing circumstances at the time of
shooting.”
ISSUES IN DISPUTE
[13] The disputed issue is:
[13.1] Whether sergeants Muhlari and Maponyane were lawfully
justified, under section 49 of the Criminal Procedure Act 77 of
1955, in discharging firearms at the Nissan Micra in which the
Plaintiffs were travelling. More specifically it has to be
determined whether or not the police officers:
[13.1.1] acted wrongfully and negligently by firing shots at
the Nissan Micra in which the P laintiffs were
travelling and
[13.1.2] whether the SAPS members’ lives were in danger
or not and if there was an alternative way to
protect themselves.
EVIDENCE LED BY THE DEFENDANT
[14] The Defendant’s counsel led the evidence of two (2) witnesses , namely
sergeants Muhlari and Maponyane.
SERGEANT MUHLARI
[15] Sergeant Muhlari stated that on 25 September 2017, he was serving as a
constable at Johannesburg Central SAP and was assigned to the Hillbrow
area. He was assigned to a tactical response unit tasked with managing
criminal activities in regions susceptible to hijacking and robberies. The team
initiated patrol operations at 17:00 on the day.
[16] The crew was composed of Constable Mashaba (first crew member),
Hlongwane (driver), and Maponyane (third crew member), with hi mself
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serving as the fourth crew member. They were assigned a marked white
Ford Everest police vehicle.
[17] At 21:05, they were travelling northbound on First Street at a slow speed.
The witnesses’ attention was drawn to calls for help from nearby residences.
They observed three females and two males pursuing one individual. During
the pursuit, a vehicle stopped and the person being chased entered the car,
which was identified as a yellow Nissan Micra.
[18] After entering the Nissan , the Nissan Micra proceeded southwards in the
opposite direction.
[19] He and sergeant Maponyane exited the police vehicle to stop the speeding
Nissan Micra.
[20] The siren and blue lights identified them as police.
[21] He shouted "police, police," but the vehicle did not stop.
[22] He discharged a warning shot into the ground. The Nissan Micra continued
without stopping.
[23] One occupant pointed an unknown object, possibly a firearm. He then fired a
second shot at the vehicle’s tire.
[24] The second shot was fired as the Nissan Micra drove up the street. He could
not confirm if he hit the tire until the vehicle stopped.
[25] He shot and he explained:
“I would not wait to be shot at and act later. My life is in danger. I must now
retaliate.”
[26] The other crew members drove off and made a U -turn to follow the Nissan
Micra.
[27] The Nissan Micra came to a stop after travelling a short distance. Constable
Mashaba and Hlongwane had already reached the vehicle, while he and
sergeant Maponyane proceeded to approach it on foot.
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[28] Upon arrival, the vehicle doors were open, the front passenger was outside,
another person was at the back - there were four people in total.
[29] One of the passengers at the back was shot at in his back.
[30] Constable Mashaba called the ambulance, then the police station.
[31] A second individual reported being shot. They were transported by
ambulance as additional police officers arrived.
[32] He fired at the tyre to stop the Nissan Micra, intending to check for the
pointed object. No object was found, though it might have been discarded.
[33] No statement was taken from him at the police station. The evidence he
gave was from memory.
[34] Unaware of the reason for the pursuit or any crime, he fired a warning shot
to halt the vehicle.
[35] During cross-examination, it was put to him that when he fired the shot, he
was unaware if a crime had occurred or what type of crime it might be. In
response, he stated that he was aware a crime had taken place.
[36] When then asked whether he had previously stated that he was unsure if:
(i) a crime had been committed or
(ii) which specific crime had occurred, he responded:
“The first question, I did not know.” This response pertains to his uncertainty
about whether a crime was committed.
[37] He testified that an individual in the backseat of the Nissan pointed a n
object, but he was unable to specify the direction in which the object was
pointed or from which side it occurred.
[38] During cross-examination, he stated for the first time that they had searched
the area for the object. When questioned about why this was not included in
his initial evidence, he responded that it had not occurred to him at the time.
The location of the object was a significant factor and resulted in him firing a
second shot.
10
[39] He conceded that discharging a firearm at the vehicle, if not executed with
precision, could result in fatal consequences.
[40] Upon being questioned about his use of the term " retaliation," he affirmed
this choice of word and explained that he perceived the object in question as
a threat, believing it to be a firearm. Although he did not visually confirm the
presence of a firearm, he was convinced in his mind that it was one.
[41] When questioned about paragraph 3.6 of the Defendant’s Plea2, which
claimed members chased the vehicle and fired warning shots at its tyres, he
responded that before the police vehicle made a U -turn, he and Maponyane
had already exited the police vehicle. It was suggested to him that the
depiction of the police vehicle pursuing the Nissan contradicts his testimony
in court.
[42] No shots were discharged towards the police officers. He also does not
know the reason why the Nissan stopped after the shooting.
[43] It was also suggested to him that, at the time the man entered the Nissan,
there was no certainty whether a crime had been committed. Similarly, when
he fired the warning shot, it was not yet clear if any crime had taken place.
The act of pointing an object did not present an immediate threat, yet a bullet
was discharged. He did not take into account three factors:
[42.1] the nature and extent of the crime;
[42.2] that the threat to the police officers was not real; and
[42.3] whether there was alternative means to stop the Nissan Micra.
[44] He stated he did not intend to kill and only aimed at the tyre, as it was the
sole way to stop the vehicle.
[45] He observed the Nissan Micra when it was approximately two blocks from
the police vehicle, a distance comparable to what he estimated to be that of
a rugby field.
[46] A one-minute interval lapsed between the warning shot and the subsequent
round that he discharged
2 009-16
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SERGEANT MAPHONYANE
[47] The Defendant’s second witness was Sergeant Maphonyane, stationed at
Johannesburg Central SAP.
[48] During September 2017 he was a constable and his work entailed crime
prevention.
[49] On 25 September 2017, he was performing his duties while travelling in a
marked Ford Everest police vehicle equipped with a blue light and siren. The
officers were conducting a patrol in the Jeppe area, which is known for
incidents of hijacking and robbery. The police crew comprised of officers
Hlongwane, who was driving, as well as Mashaba, Muhlari, and himself.
[50] After 9:00 p.m., they conducted patrols along First Street, proceeding in a
northbound direction.
[51] He saw three females and two males pursuing a man. Calls for help were
heard.
[52] A Nissan Micra was rapidly approaching, and the individual being pursued
entered the vehicle.
[53] The police attempted to stop the Nissan Micra by signalling with their hands.
The Nissan was travelling north to south, while the police vehicle was
moving in the opposite direction, from south to north.
[54] After attempting to stop the Nissan Micra he fired a warning shot in the road.
He testified that one of the occupants then pointed something like a fire-arm.
This person was seated at the right hand side at the rear of the Nissan
Micra. He shot at the tyre of the Nissan Micra.
[55] Due to low visibility and the late hour, his view was significantly impaired.
Additionally, the interior of the vehicle lacked adequate lighting.
[56] No shots were fired at them by the occupants of the Nissan.
[57] The police vehicle made a U -turn and picked sergeant Muhlari and him self
up.
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[58] The Nissan vehicle’s doors were opened two people were seated at the
back. The police asked them to alight to search them. One of the persons
was injured.
[59] A search was conducted for the object; however, no results were obtained.
[60] He and sergeant Muhlari each fired twice, believing a crime may have
occurred.
[61] He fired a warning shot to stop the fleeing Nissan Micra, as there was no
other way to halt the fast-moving vehicle.
[62] The second shot was directed at the rear right tyre, as he believed that there
was an imminent threat to their safety. There was an interval of one minute
between the two shots he discharged. Subsequently, he however
acknowledged that the shots were fired in relatively close succession.
[63] The occupants of the Nissan Micra were likely injured due to First Street's
curve and incline.
[64] It is within a police officer’s authority to stop a vehicle if there is reasonable
suspicion of a crime, even in the absence of directly witnessing the
commission of an offence.
[65] The second shot was fired because an occupant pointed an object which he
believed to be a firearm. He considered the possibility of being shot if he
waited, particularly due to the risks associated with the Jeppe area.
[66] Prior to the pursued individual entering the Nissan Micra and before the
Nissan Micra passed the police vehicle, he and sergeant Muhlari exited the
police vehicle.
[67] He discharged a warning shot promptly as the Nissan Micra passed the
police vehicle, demonstrating a swift response.
[68] The second shot was triggered by a hand gesture inside the Nissan Micra as
it passed the police vehicle. He was unaware of the events that transpired
amongst the individuals in the Nissan. He was told that the occupants tried
to remove the man from the vehicle, and there after gunshots were fired.
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[69] He and sergeant Muhlari were transported by the police vehicle to where the
Nissan Micra was stopped. He refuted Muhlari’s claim that they walked
there.
[70] When asked about the potentially lethal nature of shooting at the Nissan, he
stated that his intention was not to target the vehicle itself but to shoot at the
tyre. He also acknowledged the possibility of bullets ricocheting.
[71] It was suggested that the second shot was discharged when there was no
longer a threat to the police, as the vehicle had already passed, to which he
replied “yes.” When asked why the police did not pursue the Nissan Micra,
which had a one litre engine, he stated that it depended on the driver. He
added that the Nissan Micra was travelling at speed and the police vehicle
had to execute an U-turn.
[72] He stated that his use of a firearm was based on his assessment of the
specific area as dangerous.
[73] He was asked why the pointing of the object was not included in the
Defendants’ amended plea, given its significance as evidence. He indicated
that he was unaware of the reason.
[74] He admitted that the person being chased posed no threat as he was
fleeing. When asked, he confirmed he used force. He fired his weapon as a
result of the hand gesture, and was unaware of any crime at the time.
[75] He asserted that his conduct complied with section 49 of the Criminal
Procedure Act 51 of 1977. He discharged his firearm subsequent to the
object being pointed. At the time the object was pointed, the Nissan Micra
was approximately 5 to 6 metres away.
[76] The windows of the Nissan Micra were shut. This evidence contradicts
sergeant Muhlari’s evidence which stated that the windows were open. The
number of occupants inside the Nissan Micra was not visible.
[77] The court asked if he was able to see inside the vehicle, to which he
responded that it was not dark. Nevertheless, upon inquiry regarding the
object, he stated that it was too dark to see.
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CONTRADICTORY, IMPROBABLE AND CRUCIAL EVIDENCE OF SERGEANT
MUHLARI
[78] The following contradictions emerged during cross -examination and in
response to the court's questions from sergeant Muhlari’s evidence:
[78.1] He gained awareness of the following:
[78.1.1] the Nissan when it was two blocks away – equating the
distance to the length of a rugby field. Later on it was
established that his measurement of the distance was
inaccurate.
[78.2] He initially testified that he alighted from the police vehicle when he
saw the runner (Odar) and subsequently stated that he alighted
after the runner got into the Nissan Micra.
[78.3] He had a restricted amount of time to observe, as he was unable to
specify the precise path taken by the runner. He acknowledged that
his observation of the runner only began once the individual
entered the Nissan Micra.
[78.4] He stated that his intention was to stop the Nissan Micra; however,
he mentioned " retaliation" as a means to pre- empt any actions by
the vehicle's occupants. Retaliation is a counter-attack, revenge or
the action of harming someone because they have harmed you.
3
[78.5] Although he acknowledged that visibility was limited due to
darkness and some non-functioning streetlights, he maintained that
he accurately observed the events. He specifically noted that the
right rear window of the vehicle was open and reported seeing a
pointing gesture inside the vehicle.
3 Oxford Dictionary.
15
[78.6] His evidence regarding the pointing gesture lacked specific details.
Additionally, the gesture was made after the Nissan Micra had
passed the police vehicle.
[78.7] He conceded that he did not know what happened inside the
Nissan Micra.
[78.8] He stated that there was a one- minute interval between the
warning shot and the second shot he fired; however, this timing
appears highly unlikely.
[78.9] He stated that no crime occurred in his presence and there was no
threat to the public. He testified that he considered the pointing
gesture as a possible threat to himself and other police officers.
[78.9.1] The pointing gesture involved a hand motion with no
identifiable object indicated.
[78.9.1.1] The pointing gesture, which was deemed
significant and alleged to constitute a
threat, was not included in the
Defendant’s amended Plea
4 or
documented in the police docket.5
[78.9.1.2] Notably, the search for an object following
the stopping of the Nissan was only
disclosed by him when specifically asked if
a search had occurred. It would have been
reasonable to expect that he would
present evidence regarding the search for
the object voluntarily during his
examination-in-chief. This is said in light of
the fact that the hand gesture with the
unidentifiable object led to the second shot
being fired.
4 009-14
5 056-1
16
[78.9.1.3] The lack of any object found- no firearms
were found in or near the Nissan Micra.
[78.10] He stated he fired the second shot in retaliation before th e
individuals in the Nissan Micra could respond. Retaliation is a
counter-attack, however no shots were fired by the Plaintiffs.
[78.11] His acknowledgement that discharging a firearm in the
direction of the Nissan posed a potential risk to life, as it is
recognised that bullets can ricochet.
[78.12] He failed to consider other options alternative options or less
intrusive methods for addressing the situation.
[78.13] His admission that the use of force, especially deadly force,
was permissible only under highly specific and limited
circumstances when making an arrest to prevent an actual
threat is important.
[78.14] His failure to address the rationale behind deploying a police
vehicle with a more powerful engine capable of pursuing the
Nissan Micra independently, requesting additional support, or
employing less intrusive methods remained unexplained.
CONTRADICTORY, IMPROBABLE AND CRUCIAL EVIDENCE OF SERGEANT
MAPONYANE
[79] He could not dispute that the runner moved in front of the Nissan after
crossing the street, touched the bonnet, and entered through the front
passenger door. This suggests he did not witness the manoeuvre and only
noticed the runner upon entering the vehicle or that he was occupied whilst
exiting the police vehicle.
[80] The Nissan Micra vehicle was approximately six metres from him when he
observed a pointing gesture inside the vehicle; however, he was unable to
articulate any specific reason for perceiving the object being pointed as a
firearm.
17
[81] Notably, he also estimated a one- minute interval between the warning shot
and the subsequent shot. When presented with evidence suggesting that
this estimate was inaccurate, he declined to revise his assessment. The
stated interval of one minute is inconsistent with the brief duration in which
the incident actually occurred.
[82] His testimony that the Nissan Micra was travelling at a high speed both upon
its initial approach and departure precludes the possibility of making a
definitive observation regarding the nature and extent of the alleged hand
gesture within the vehicle.
[83] He was unable to point to any crime that occurred in his presence, nor was
he able to specify any substantial threat to members of the public or clearly
articulate the reason for the concern expressed by the police officers.
[84] He acknowledged that discharging a firearm toward the Nissan Micra vehicle
posed a potentially lethal risk and recognised the possibility of bullet
ricochet.
[85] He retaliated for the fear of anticipated violence rather than a projected
threat being posed.
[86] Referring to the attached Google Maps photographs 6, he stated that the
Nissan Micra came to a stop beyond the lowest point of First Street. This
observation suggests that the Nissan Micra did not travel a significant
distance after the individual entered the vehicle refuting the idea that the
Nissan Micra was travelling at a high speed.
[87] The identical accounts provided by sergeants Muhlari and Maponyane—
specifically, a one -minute delay between the warning shot and the second
shot, as well as the pointing hand gesture inside the Nissan Micra—raise
suspicion.
PLAINTIFF’S EVIDENCE
6 058-1
18
[88] The First Plaintiff was called to testify, as he is the individual associated with
the hand gesture made inside the vehicle.
[89] The substance of his evidence was as follows:
[89.1] He spent the day in the company of the other two occupants at
the residence of the Second Plaintiff.
[89.2] During the evening, they left the Second Plaintiff’s home to buy
fish at a nearby restaurant. The fish was sold out and they
decided to return home.
[89.3] At the restaurant Joseph met a friend who was unknown to the
First Plaintiff.
[89.4] Joseph offered the man a lift from the restaurant to the man’s
residence. The man sat in the front passenger seat and this
seat remained unoccupied after he was dropped off.
[89.5] As they drove down Sydney Street, he witnessed an altercation
between a man and a lady in the street which necessitated
Joseph to stop, as he could not pass. There were a lot of
people on the road.
[89.6] A lady, wearing a gown approached the man and sprayed him
with what resembled pepper spray. This caused the man to
turn around and run from the scene, into First Street while
being chased by some of the people from First street.
[89.7] Joseph pulled away and turned right into First Street. He saw a
police vehicle, with activated blue roof -lights approaching
slowly in their direction, having crossed the river bridge
approximately 100 m away from the Nissan.
[89.8] They were travelling at a low speed and as they passed the
approaching police vehicle the runner crossed the street
behind the passing police vehicle, entered directly in front of
19
the Nissan, looking at the occupants and holding on to the
bonnet.
[89.9] This necessitated Joseph to stop.
[89.10] The runner rotated around the vehicle from the front to the side
and grabbed the front left door and opened same.
[89.11] The First Plaintiff attempted to lock the door and to eject the
runner from the vehicle but failed.
[89.12] He heard shots and felt that he was hit on the shoulder.
[89.13] He alerted the Second Defendant telling him to duck down.
[89.14] The vehicle moved forward and became stationary a distance
down the street just beyond the corner of Sydney Street and
well before the river bridge.
[89.15] The First and Second Defendants were both hit, and the
Second Defendant alighted from the moving vehicle before the
vehicle finally stopped.
[89.16] Police officers approached them at the stationary vehicle, and
an ambulance was called.
[89.17] The runner was arrested on the scene and Joseph was taken
to the police station but sent home the same day.
[89.18] Upon his discharge from the hospital, he was called to the
police station to depose to a statement which is part of the
bundle.7
[89.19] The Second Defendant was hit in the spine.
[89.20] The police members explained that they suspected a hijacking
and therefore fired shots.
7 053-88
20
[89.21] Neither of the Plaintiffs knew the runner and the occupants
were surprised by his unauthorised action in entering the
Nissan.
EVALUATION OF PLAINTIFF’S EVIDENCE:
[90] In the First Plaintiff’s affidavit 8 he depicted the happenings of the 25 th of
September 2017 - heritage day. He indicated that he, Joseph and Shaw was
in the Nissan Micra driving from Betrams to Kensington. He stated that the
man who fought with the lady run around the police car. The police car then
made an U -turn to follow the man who hid around their Nissan Micra. The
police opened fired (shooting at the man) but the bullet hit the First Plaintiff
on the left shoulder. After being shot he told Show to get down as the police
shot at them, but he was also shot at.
[91] The Defendant’s counsel alerted the court to what she termed the following
material contradictions:
[91.1] The First Plaintiff's affidavit mentioned about five people in the
road
9, but in his testimony, he referred to a group of people.
[91.2] The Plaintiff stated in court that he, Show, and Joseph (the
driver) were in the car when they went to a restaurant. He later
testified that a friend of Joseph joined them in the front seat as
a passenger when leaving. However, in his initial statement,
the Plaintiff only mentioned three people in the car and did not
specify the seating arrangement or mention Joseph’s friend.
[91.3] In his statement, the First Plaintiff reported seeing a marked
police car patrolling as a man who had been fighting with a
woman ran past it. The police made a U -turn to pursue him;
when he attempted to hide near the car, officers fired at him.
Whilst in evidence in chief, the First Plaintiff testified that the
first shots were fired at
him and Show.
8 053-88 – exhibit A
9 Paragraph 2 at 053-88
21
[92] A contradiction is a combination of statements which are inconsistent or
opposed to one another.10
[93] The First Plaintiff’s observation of people on the road in his testimony as
opposed to his affidavit is not seen as a contradiction. The witness was not
asked to clarify what he considered a group; a group can reasonably also
refer to approximately five individuals.
[94] At the time of the altercation, only three people—the First Plaintiff, Joseph,
and Show —were in the Nissan Micra. Although the presence of Joseph’s
friend was not mentioned in his affidavit, it is clear that the affidavit
commences at the time when he witness the lady fighting a man and
excludes the events prior to this. His testimony of the events prior to
witnessing the altercation aligns with the Plaintiff’s attorney's account in the
Notice of Intention to Institute Legal Proceedings under section 3 of Act 40 of
2002, dated 2 November 2017.
11 It stated that:
“3. Our clients were returning from a restaurant and driving on Derby Road
in Betrams.
4. Tinei and Show were seated at the rear passenger seat. The front
passenger seat was occupied by a friend of Joseph who was dropped off
earlier at this residence…”
[95] Consequently, the aforementioned statements do not constitute
contradictions that undermined the credibility of the First Plaintiff.
[96] The Defendant’s Counsel indicated that the First Plaintiff was a single
witness and that the cautionary rule should be applied.
[97] In S v Ganiel, 1967 (4) SA 203 (N) Leon and Harcourt JJ at page 206 G-H
stated the following with regard to evidence of a single:
"The cases dealing with single witnesses do not, as we understand them, lay
down any rule of law but merely indicate that a court should approach the
10 Oxford Dictionary
11 053-12
22
evidence the evidence of a single witness with caution and should not easily
convict upon such evidence unless it is substantially satisfactory in all
material respects or unless it is corroborated. "
[98] The Appellate Court in S v Webber
1 1971 (3) SA 754 (A) at 758G-H), after
examining the case law, concluded as follows (per Rumpff JA:
"Dis natuurlik onmoontlik om 'n formule te skep waarvolgens elke enkele
getuie se geloofwaardigheid vasgestel kan wordt, maar dit is noodsaaklik om
met versigtigheid die getuienis van 'n enkele getuie te benader en om die
goeie eienskappe van so 'n getuie te oorweeg tesame met al die faktore wat
aan die geloofwaardigheid van die getuie kan afdoen."
[99] The First Plaintiff’s evidence was assessed with caution, the “ contradictions”
referred to by the Defendant are not seen as contr adictions as discussed
here in above. The First Plaintiff’s evidence was direct and satisfactory. His
evidence cannot be found to be dishonest, untrustworthy and is accordingly
accepted.
JUSTIFICATION:
[100] The Defendant had to establish and prove justification under section 49 of
the Criminal Procedure Act, Act 51 of 1977.
[101] In the application of section 49, it was incumbent upon the Defendant to
establish and prove that:
[101.1] The Plaintiffs or the individual fleeing must have been
considered suspects; there should have been reasonable
grounds to suspect that a crime was being committed or had
been committed.
[101.2] Attempts had to be made to arrest the suspect/s;
[101.3] The suspect/s had resisted arrest;
[101.4] A clear attempt had been made to arrest.
[101.5] The suspect/s could not have been arrested without the use of
force;
[101.6] Force was used to effect the arrest;
23
[101.7] The force was reasonably necessary and proportional in the
circumstances to overcome the resistance or to prevent the
suspect from fleeing.
[101.8] If the force was deadly whether:
[101.8.1] the suspect posed a threat of serious violence to
the arrestor or any
another person; or
[101.8.2] 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 of effecting
the arrest, whether at that time or later.
[102] Neither of the police officers could testify:
[102.1] whether Odar or the Plaintiffs had committed a crime or whether the
officers had a reasonable suspicion that they had committed a crime.
[102.1.1] Based on the evidence, neither Oda r nor the Nissan's
occupants could reasonably be considered suspects at
the time in that:
[102.1.1.1] the members where not privy to the
incident in Sydney Street.
[102.1.1.2] their attention was likely drawn by
one or more of the following:
observing Odar, the chasers,
hearing the shouting, or witnessing
the interaction between the runner
and the Nissan vehicle.
[102.1.2] The officers’ alert must be evaluated using objective
facts about the cause and suspicion of a crime. The
reason for the chase and the events on Sydney Street
were unclear, and assumptions made after the fact do
24
not satisfy the reasonable and objective test that Od ar
committed a crime.
[102.1.3] Odar’s pursuit and the shouting did not clearly indicate a
crime or identify the individuals involved.
[102.1.4] The Defendant’s witnesses acknowledged that they were
unable to identify any crime or determine what offence
may have been involved. Additionally, their subsequent
speculation regarding a possible hijacking supports the
conclusion that attempts to stop the vehicle were not
conducted in accordance with section 40 of the Act.
Section 40 provides for different instances where peace
officers may effect an arrest without an arrest warrant.
[102.1.5] The interaction between Odar and the vehicle was short
and occurred quickly.
[102.1.6] The officers exited their vehicle immediately but had no
objective reason to suspect the runner of any crime.
[102.1.7] The runner was not escaping arrest, and the pursuit may
have had any cause. Assuming a crime in this context
lacks logical basis.
[102.1.8] The unchallenged testimony of the First Plaintiff
established that neither occupant of the vehicle was
acquainted with the runner. The surprise exhibited by
both police officers during cross -examination, when this
information was presented, indicates that they had not
previously considered this matter.
[102.1.9] At the relevant time, it was not reasonable for the police
officers to hold any suspicion regarding the runner, and
consequently, no suspicion could be attributed to the
occupants of the Nissan either.
25
[102.1.10] The police officers’ response was disproportionate. The
evidence they provided appears to have been
reconstructed, and possibly altered, to substantiate a
suspicion that could not have been reasonably justified
at that time.
[102.2] that any efforts were made to arrest or detain Odar or the
Plaintiffs.
[102.2.1] The evidence indicates that any attempts made to arrest
was unlikely.
[102.2.1.2] It can be stated that, if any attempts
were made, they were indirect, unclear,
and open to multiple interpretations.
[102.2.1.3] There is no reason to dismiss the
evidence of the First Plaintiff that the
blue roof lights of the police vehicle were
already engaged when he first saw the
vehicle.
[102.2.1.4] There is a clear inconsistency in the
police evidence regarding both the
efforts undertaken and the chronological
order of the arrest attempts.
[102.2.1.5] Although the roof lights and siren were
activated during the incident, it is
unlikely that this would have reasonably
influenced the driver to remain
stationary, given the very brief time
between the police officers' responses
and the shooting.
[102.2.1.6] Whether gestures were made inside or
outside of the vehicle, these attempts
26
may not have been readily apparent,
unambiguous, or clearly visible.
[102.2.1.7] The incident occurred quickly on a dark
street, providing limited opportunity for
observation, especially with regard to
detailed observation.
[102.2.1.8] The uncontested evidence demonstrates
that the occupants of the Nissan were
taken by surprise when the runner
entered the vehicle. Shots were
discharged in rapid succession, and it is
likely that the driver attempted to prevent
the runner's entry by driving away.
[102.2.1.9] A complete and exact reconstruction of
the timing and sequence of events is not
feasible. In the context of the time, the
use of flashing blue lights, a siren, or
any other signals by the police members
would not have clearly communicated or
attempted to arrest the driver or
occupants of the vehicle.
[102.2.1.10] Officers should not expect immediate
compliance from those who see blue
lights and hear sirens; the presumption
of innocence must be respected.
[102.2.2.11] The claim of resistance appears to have
been constructed after the fact and is
not reasonably substantiated by the
balance of probabilities in light of the
overall evidence.
27
[102.3] that t he arrest of Odar and the Plaintiffs could not have been
affected without the application of force.
[102.4] that the force was used to effect an arrest;
[102.4.1] The evidence led confirmed that the police officers did
not considered alternatives to arrest in that:
[102.4.1.1] The officers responded promptly,
exhibiting a reaction that appeared highly
procedural and potentially exceeded
standard expectations, without evident
consideration of alternative courses of
action.
[102.4.1.2] The evidence indicated anticipation and
retaliation to prevent a response from the
Nissan's runner or occupants.
[102.4.1.3] Neither of the police officer s considered
the significant differences in the engine
size between the vehicles, nor the
potential to pursue the Nissan and to
request additional support.
[102.4.1.4] The officers' claim that no alternative
means were available is not substantiated
by the facts, and therefore the section 49
justification is not met.
[102.5] that the use of force was both reasonably necessary and
proportionate under the circumstances to overcome resistance or
prevent the suspect from fleeing.
[102.5.1] The evidence presented substantiated the following
findings:
28
[102.5.1.1] The force had the potential to cause death.
[102.5.1.2] Lethal force is justified only by the
perceived threat from the hand gesture in
the Nissan Micra.
[102.5.1.3] The police officers' response was
disproportionate to their perception, as
there was no apparent threat or attack to
them or the public.
[102.5.1.4] If such a threat had truly existed, it would
have been reasonable to expect that any
shots fired were intended for purposes of
self-defence rather than being directed at
the tires of the Nissan, as claimed by the
officers.
[102.5.1.5] The officer's account appears to be a
reconstruction to explain the use of deadly
force. The available information regarding
the hand gesture - its nature, extent,
consequence, or result - does not provide
sufficient context to support the decision to
use deadly force.
[103] The police officers admitted uncertainty about whether a crime had occurred,
so Odar and the Plaintiffs c ould not have been considered suspects. The
police officers appeared to act on unfounded assumptions without all the
facts. Their claim that they shot because they believed the vehicle was
hijacked does not match their initial observation of Oder being chased.
[104] Neither police officers provided a clear explanation of the threat, why no
proper search was conducted inside or near the Nissan Micra for the object ,
or why these issues were absent from statements on the incident and the
Defendant's plea, despite disclosure to the legal team.
29
[105] The time and opportunity available for observation were highly restricted, and
inconsistencies regarding the open window —specifically whether the hand
gesture was witnessed through the side or right rear window, as well as
whether an object was involved in the hand gesture—are self-evident.
[106] The rationale for employing force, particularly lethal force, is based solely on
the purported hand gesture observed within the Nissan Micra. Both witnesses
acknowledged having limited time and opportunity to accurately perceive the
events inside the vehicle.
[107] Furthermore, neither of the police officers possessed knowledge of the events
that transpired inside the Nissan Micra.
[108] Neither police officers believed that the runner's entry into the Nissan was
unauthorised, and no actual threat subsequently occurred. It is unclear how
an attack could have taken place from within the vehicle while the windows
were closed.
[109] Credibility is undermined by major inconsistencies among the police officers
regarding attempts to stop the Nissan Micra, whether the rear window was
open, and how they approached the vehicle.
[110] The evidence shows exaggeration and indicates that both police officers had
limited time to observe the incident. Their response was immediate, and their
estimates regarding the Nissan Micra’s speed and stopping distance were
highly exaggerated and speculative due to minimal opportunity for
observation.
[111] Furthermore, it is not clear what each of the police officers actually observed,
nor which details are based on reconstruction rather than direct observation.
[112] The facts do not align with those typically observed in a hijacking scenario,
and the allegation appears to lack substantial foundation. The pursuit may
have resulted from various factors and does not indicate that a prior crime had
occurred.
30
[113] The evidence indicates that the runner most likely crossed behind the police
vehicle, as none of the officers observed the runner crossing in front of the
Nissan Micra; their accounts only noted his entry into the Nissan Micra.
[114] The police vehicle had already passed the Nissan Micra before the shots were
fired, which happened after the runner entered the vehicle.
[115] It is immaterial whether the shots were discharged prior to or following the
vehicle's departure.
[116] The shots followed in close succession of the runner entering the Nissan
Micra. The shots were
fired from behind the Nissan Micra.
[117] The use of terms such as " retaliation" by the police officers indicates that their
response was a counterattack where it is clear that there was no attack by the
occupants of the Nissan Micra. The police officers’ actions were not only
disproportionate but they were operating under a heightened state of alert not
warranted by the circumstances.
[118] I am mindful of Chapter 11 of the Constitution of the Republic of South Africa
1996 ("the Constitution") which stipulates that the South African Police
Services has a responsibility to:
[118.1] Prevent, combat and investigate crime;
[118.2] Maintain public order;
[118.3] Protect and secure the inhabitants of the Republic and their
property;
[118.4] To uphold and enforce the law;
[118.5] Create a safe and secure environment for all people in South
Africa.
[119] However, a person fleeing from the police has not yet been convicted of an
offence. There is a presumption of innocence.
[120] In Govender v Minister of Safety and Security 2001 (4) SA 273 (SCA) at
paragraph 21 the following was stated:
31
[21]: Giving effect to section 49 (1) of the Act, and in applying the
constitutional standard of reasonableness the existing (and narrow)
test of proportionality between the seriousness of the relevant
offence and the force used should be expanded to include a
consideration of proportionality between the nature and degree of
the force used and the threat posed by the fugitive to the safety and
security of the police officers, other individuals and society as a
whole.
In licensing only such force, necessary to overcome resistance or
prevent flight, as is 'reasonable', section 49 (1) implies that in
certain
circumstances the use of force necessary for the objects
stated will
nevertheless, be unreasonable.
It is the requirement of reasonableness that now requires
interpretation
in the light of constitutional values. Conduct
unreasonable in the light of
the Constitution can never be
'reasonably necessary' to achieve a
statutory purpose (my
underlining)
[121] It is evident that the force utilised must be necessary to overcome
resistance or flight and reasonable.
[122] In the matter before me the police officers did not know whether a crime
had been committed, the Nissan Micra had already passed the police
vehicle, the officers retaliated on the basis of a hand gesture with an
identifiable object inside the Nissan Micra, did not consider alternatives
to the shooting and despite the vehicle being stopped they further did not
pursue arrests of the Plaintiffs. The pointing of the object perceived to be
a firearm inside the vehicle occurred after the Nissan Micra passed the
police vehicle, where the police officers’ visibility was clearly a ffected
and in the absence of evidence that there was such an object in the
Nissan Micra. The police officers ’ testimonies that the first and second
shots were fired with an interval of one minute also does not align with
the remainder of their evidence. If there was indeed an one minute
32
interval between the shots the Nissan Micra would have been further
than 6 metres from the officers and visibility inside the Nissan in a dark
area would have been obscured.
[123] The law regarding the use of force during an arrest was clarified by the
Constitutional Court in Ex Parte Minister of Safety and Security and
Others: In Re S v Walters & Another 2002 (4) SA 613 at paragraph 54
where it was held that:
“In order to make perfectly clear what the law regarding this topic now is,
I tabulate the main points:
[123.1] The purpose of arrest is to bring before court for trial persons
suspected of having committed offences.
[123.2] Arrest is not the only means of achieving this purpose, nor
always the best.
[123.3] Arrest may never be used to punish a suspect.
[123.4] Where arrest is called for, force may be used only where it is
necessary to
carry out the arrest.
[123.5] Where force is necessary, only the least degree of force
reasonably necessary
to carry out the arrest may be used
[123.6] In deciding what degree of force is both reasonable and
necessary, all the
circumstances must be considered,
including the threat of violence the suspect poses to the
arrester or others, and the nature and circumstances of the
offence the suspect is suspected of having committed; the
force being
proportional in all these circumstances.
[123.7] Shooting a suspect solely to carry out an arrest is permitted in
very limited
circumstances only.
[123.8] 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
33
involving the infliction or threatened infliction of
serious bodily
harm and there are no other reasonable means of carrying out
the arrest, whether at that time or later.
[123.9] These limitations in no way detract from the rights of an
arrestor attempting to
carry out an arrest to kill a suspect in
self-defence or in defence of any other person.”
[124] Section 49 of Act 51 of 1977 was dealt with in April v Minister of Safety
and security All SA 270 (SE) where it was held that:
"In order to discharge the onus resting upon him, the defendant must not
only prove that the police suspected on reasonable grounds that the
plaintiff was part of a conspiracy to rob the cash in transit vehicle. This
would justify the arrest.
He must also satisfy the requirements laid down in section 49(2).
There must be acceptable evidence that the police believed on
reasonable
grounds that the use of the R5 rifle and the 9mm pistol to prevent the
plaintiff from fleeing or resisting - the only justi fication raise in the plea -
was immediately necessary for their protection or the protection of any
other persons; that there was a substantial risk that the plaintiff would
cause imminent or future death or grievous bodily harm if the arrest was
delayed;
or that the offence in question was in progress and was of a forceable
nature involving the use of life threating violence or a strong likelihood
that it would cause grievous bodily harm (Govender v Minister of Safety
& Security 2001(2) SACR 197 (SCA)).
My view is that even on an acceptance of the police's version of the facts
the evidence falls short of meeting the statutory requirements for the use
of deadly force.
34
"In the First place, the provisions of section 49(2)(a) were not satisfied.
This subsection required proof of a belief on reasonable grounds by
Makaula or Frank that, at the time they opened fire after the plaintiff
alighted from the Golf and ran from the scene, the use of firearms was
immediately necessary for the protection of the police or any other
person.
There is no suggestion here of the protection of any person other than
the
police.
We know that the plaintiff was not armed. Neither of the policemen who
fired shots saw or thought they saw a firearm in his possession. They
said that they did not see his hands at all. They did not testify to any
threatening gesture on his part at that stage which might have led them
to a reasonable belief that he might have a concealed firearm and that
he might open fire with it.
Makaula's case was that somebody in the plaintiff's Golf had previously
fired shots at the Jetta through the front passenger window of the Golf.
This was before the vehicles had entered Main Street. On his version it
could not have been the plaintiff because he was the driver. There were
no firearms found in the Golf afterwards…” (my underling)
[125] The police officers in the matter before court were unaware of why the
chase began or what happened at Sydney Street. Any assumptions
made after the fact, even if confirmed, do not meet the reasonable and
objective standard required to prove that the runner (Odar) had
committed a crime. Neither the act of chasing nor the shouting could
objectively determine whether a crime took place, who the alleged
offenders were, or who might have been a victim.
[126] The runner’s interaction with the vehicle was rushed and swift.
35
[127] The officers exited the police vehicle immediately. Objectively, there was
no basis for any suspicion that the runner was involved in criminal
activity.
[128] The runner ( Odar) was not evading law enforcement (arrest), and there
is no evidence to suggest that the pursuit was provoked by criminal
activity. Inferring the existence of a crime under these conditions is
unsupported by logical analysis.
[129] If the runner could not be connected to a crime, similarly also the
occupants of the Nissan could not have been tied to any crime.
[130] No attempts were made by the police officers to arrest any person.
[131] No alternatives to shooting were furthermore considered.
[132] The forced used was lethal , exaggerated and based upon a hand
gesture with an unidentifiable object in the Nissan Micra.
[133] If the officers’ actions were motivated by genuine fear, it would be
anticipated that they would respond with self -defensive measures rather
than discharging their firearms at the vehicle's tyres.
[134] The argument that section 49 justifies the attempted arrest and any
resistance is not supported by the facts, especially considering how
quickly events unfolded and the surprise and reactions of those in the
Nissan Micra.
[135] There is furthermore no evidence to support the allegation that shooting
was the only option available. It is very clear that other alternatives were
not considered at all.
[136] There is a clear absence of proportionality between what the police
officers perceived – the hand gesture inside the Nissan Micra under low
visibility and their ultimate reaction of shooting.
[137] The Nissan Micra had furthermore passed the police vehicle allowing for
the police officers, in circumstances of retaliation, to have sought
36
protection behind the police vehicle. Retaliation is a counter -attack
based upon an attack which is not supported by the facts.
[138] I conclude that the shooting was therefore unlawful.
CONCLUSION:
[139] Based upon the evidence l ed in court by sergeants Muhlari and
Maponyane the Defendant did not discharge the onus that rested on it in
justifying the shooting by the members of the police force.
[140] There is clearly an absence of an attempted arrest and of any
resistance. The incident occurred in a dark street with only sum of the
streetlights working, it furthermore occurrent in a short time span with
limited time for observation.
[141] Whilst the Defendant argued that Rule 18(4) of the Uniform Rules of
Court prohibits the pleading of evidence, it is evident from the
Defendant’s Amended Plea at paragraph [12] that the Defendant did
indeed plead evidence. The fact that the hand gesture inside the Nissan
Micra was not mentioned, despite other evidence being included, is
notable given its importance.
[142] The police fired in response to a hand gesture with an object perceived to
be a firearm. If their account is accurate, a one- minute delay would have
allowed the Nissan Micra to move out of clear view due to low visibility
and distance. The police officers viewing of a hand gesture inside the
Nissan Micra would have been improbable.
[143] The police officers also did not consider alternatives to shooting, and their
response was disproportionate to the hand gesture observed.
[144] No attack originated from within the Nissan Micra, nor were any firearms
discovered in or around the vehicle. Retaliation by the police officers was
therefore not an appropriate course of action.
[145] The nature and the extent of the hand gesture remain unexplained. This
is highly significant.
37
[146] I conclude that:
[146.1] The Defendant did not discharge its onus of proof.
[146.2] The shooting was unlawful and that there was no justification
in terms of section 49 of Act 51 of 1977.
[147] The Defendant is liable for the damages to be proven which arose from
the shooting incident.
[148] Accordingly, I make the following order:
Order
[1] The Defendant is liable for all the damages to be proven which resulted
from the shooting incident together with costs of the action on the High
Court scale including the costs of counsel on scale B.
___________________________
S VAN ASWEGEN
ACTING JUDGE OF THE HIGH COURT
JOHANNESBURG
Hearing date: 8 September 2025
Delivery date: 13 October 2025
For the Plaintiffs: Adv P Uys
Instructed by Logan Naidoo Attorney
For the Defendant Adv MG Makhoebe
Instructed by TJ Mpulo Attorneys
38