Brief Summary

Criminal Procedure — Use of force in effecting arrest — Section 49(1) of the Criminal Procedure Act 51 of 1977 — Appellant claimed damages for injuries sustained by his son when shot by a police officer during an attempted arrest for vehicle theft — Police officer contended that use of force was justified to prevent suspect from fleeing — Legal issue of wrongfulness and constitutional rights of the suspect — Court held that the police officer's actions were lawful under section 49(1), balancing the necessity of force against the constitutional rights of the suspect, and thus the appellant's claim was dismissed.

Comprehensive Summary

Summary of Judgment

1. Introduction

This matter concerned an appeal to the Supreme Court of Appeal against an order of the Durban and Coast Local Division of the High Court. The High Court (per Booysen J) had absolved the defendant from the instance, with costs, in an action for damages.

The appellant was Devraj Govender, acting as the father of his minor son, Justin Govender. The respondent was the Minister of Safety and Security, cited on the basis of vicarious liability for the conduct of a police officer, Inspector Cox, who was acting within the course and scope of his employment at the time of the incident.

The dispute arose from a police shooting in Durban on 16 June 1995, during an attempted arrest. The plaintiff claimed damages for catastrophic bodily injury, alleging that Justin was wrongfully shot while fleeing. The respondent’s defence was that the shooting was justified under section 49(1) of the Criminal Procedure Act 51 of 1977, properly applied and interpreted in light of constitutional norms (under the Interim Constitution, Act 200 of 1993). The appeal therefore squarely raised the question whether the police conduct, though prima facie infringing constitutional rights, was rendered lawful by statutory authorisation as constitutionally construed.

The Supreme Court of Appeal was not asked to declare section 49(1) invalid. Rather, the appellant sought a constitutionally compliant interpretation (“reading down”) of the provision and a finding that, on that interpretation, the shooting was unlawful.

2. Material Facts

A number of core facts were not disputed. It was common cause that Inspector Cox fired the shot that struck Justin in the back, that he did so intentionally to wound, and that he was acting within the course and scope of his employment as a police officer. The shot fractured Justin’s spine and left him paraplegic. Justin was 17 years old, a matriculant, and unarmed.

The trial court’s factual findings were not challenged on appeal, and the Supreme Court of Appeal proceeded on those findings. The events unfolded as follows.

A BMW motor vehicle was stolen from a shopping complex in Tarndale Road, Durban, on the evening in question. Justin and two friends had spent part of the evening drinking and trying to obtain cannabis. They eventually arrived on foot at the shopping complex, where they encountered a person named Bilal who apparently had stolen the BMW’s keys. Justin, his two friends, and Bilal entered the BMW and drove off. The group, including Justin, knew the vehicle was stolen, and Justin was the driver. Bilal later exited the vehicle and removed items from the boot (a leather jacket and an angle grinder).

After the owner reported the theft, Cox and Sergeant Hillcoat (in a police vehicle, with Hillcoat driving) saw the BMW driving in a manner suggesting the driver might be intoxicated, including leaving the roadway and striking a water meter and a wall, then continuing. The police activated the siren and blue lights and pursued the BMW. The vehicle did not stop. During the chase Cox contacted the control room and was informed the BMW had been stolen earlier that evening, but received no further details. The pursuit continued at high speed.

The BMW turned into a parking area in Harbottle Street, spun around, and drove back towards the police vehicle, forcing Hillcoat to stop. Cox observed the driver and one passenger exit the BMW and run. Cox got out first and pursued them up Harbottle Road, shouting “Stop! Police! Stop!” When they did not stop, he fired a warning shot into a grass bank and shouted again. The suspects continued running into Chapel Street. The passenger ran ahead and disappeared around a building. Justin continued running, increasing the distance, ultimately being about 50 metres ahead.

Cox concluded he would not be able to catch Justin on foot and, while still running, fired at him, aiming at his legs. Justin fell. Cox approached him and Justin admitted that the vehicle had been stolen. The second suspect was not located despite subsequent attempts to find him, including the involvement of a dog unit.

3. Legal Issues

The central legal question was whether the shooting was wrongful for purposes of delict, given that causation, fault in the sense of intentional shooting, and vicarious liability were either common cause or assumed for purposes of the relevant enquiry. The remaining element in dispute was therefore wrongfulness, assessed through the lens of justification.

This wrongfulness enquiry turned on the proper interpretation and application of section 49(1) of the Criminal Procedure Act 51 of 1977, in particular whether the statutory authorisation to use “such force as may in the circumstances be reasonably necessary” to prevent flight permitted the use of potentially lethal force (a firearm) in the circumstances of this case.

The dispute concerned a mixed question of law and application of law to fact, requiring a constitutional construction of the statutory standard of reasonableness. The court had to determine, consistently with constitutional interpretive duties, how to balance the State’s interest in effective law enforcement and apprehension of suspects against the fugitive’s constitutional rights, including the rights to life, physical integrity, dignity, the presumption of innocence, and equality (as protected under the Interim Constitution).

A further issue was methodological: whether section 49(1) could be interpreted (“read down”) to conform to constitutional standards without declaring it invalid, and if so what substantive content the constitutional standard of “reasonable necessity” required.

4. Court’s Reasoning

The court’s reasoning began from the premise that the shooting was prima facie a serious infringement of constitutionally protected interests. The respondent’s case therefore depended on establishing a justification, namely that Cox’s conduct fell within section 49(1) as properly interpreted in a constitutional order.

Constitutional approach to statutory interpretation

The court endorsed the constitutional interpretive approach articulated in Investigating Directorate: Serious Economic Offences and Others v Hyundai Motor Distributors (Pty) Ltd and Others: In re Hyundai Motor Distributors (Pty) Ltd and Others v Smit NO and Others [2000] ZACC 12; 2001 (1) SA 545 (CC). On this approach, legislation must, where reasonably possible, be interpreted through the prism of the Bill of Rights and in a manner that promotes the spirit, purport, and objects of constitutional rights. Courts must navigate between literalism and impermissible judicial law-making by examining statutory purpose, the scope of affected rights, and whether a constitutionally compliant meaning is reasonably available; if not, constitutional invalidity proceedings may be necessary.

The court treated the appellant’s stance as a request for constitutional construction rather than a direct constitutional challenge: the appellant did not seek to strike down section 49(1), but asked that it be interpreted to align with constitutional standards, particularly those for limiting rights under section 33(1) of the Interim Constitution.

Purpose of section 49 and balancing of interests

The court accepted that the object of section 49(1) (and section 49 generally) is connected to the State’s duty to protect safety and security and to ensure that suspects are brought to justice so that the criminal justice system remains effective as a deterrent. The court emphasised that an inability to effect arrests would undermine the legitimacy of the State and encourage lawlessness.

At the same time, the court stressed that the State also has a duty to protect the rights of all persons, including suspects who flee arrest. A fleeing suspect is generally unconvicted and therefore benefits from the presumption of innocence; even an escaping convicted person does not become an “outlaw” stripped of constitutional protections. The legal task was therefore to reconcile these competing imperatives by identifying when the statutory permission to use force remains reasonable and justifiable in an open and democratic society.

Critique of prior interpretations and development of the reasonableness standard

The court examined prior judicial treatment of section 49(1), noting criticism that the provision historically set an unduly low threshold because it did not explicitly qualify the nature and extent of permissible force and was interpreted as permitting broad force merely to prevent flight. Authorities such as R v Britz 1949 (3) SA 293 (A), Mazeka v Minister of Justice 1956 (1) SA 312 (A), and Matlou v Makhubedu 1978 (1) SA 946 (A) were referred to in describing this earlier interpretive landscape and the judiciary’s concern that the section too easily authorised severe force.

The court acknowledged that the Appellate Division in Matlou v Makhubedu 1978 (1) SA 946 (A) had already sought to raise the threshold by requiring proportionality between the seriousness of the suspected offence and the force used. However, the appellant argued that even this proportionality requirement remained constitutionally insufficient because it did not adequately protect the suspect’s fundamental rights and did not define sufficiently when potentially lethal force is permissible. The appellant’s submission was that an additional factor was required: whether the suspect poses an immediate threat of serious physical harm to the arrestor or the public, or whether the suspect is reasonably believed to have committed an offence involving the infliction or threatened infliction of serious bodily harm.

Adoption of a “threat/danger” requirement as part of constitutional reasonableness

The court regarded the “threat/danger” requirement as a rational and equitable mechanism for balancing collective and individual interests. It considered comparative and international material referenced in argument, particularly Tennessee v Garner 471 U.S. 1 (1985), in which the United States Supreme Court held that deadly force to prevent escape is constitutionally unreasonable where the suspect poses no immediate threat to officers or others, but may be permissible where there is probable cause to believe the suspect poses a threat of serious physical harm or has committed a violent crime involving such harm, and where feasible a warning has been given.

The court concluded that limiting the enquiry to the seriousness of the offence (even with proportionality) inadequately captured the constitutionally relevant distinction between violent and non-violent threats and could lead to morally and constitutionally troubling outcomes. It reasoned that the lawfulness of firing at a suspect cannot depend on the fortuity of whether the suspect is killed or wounded, because firing a shot at a person is inherently potentially fatal. The court thus treated a firearm discharge as a paradigmatic instance of potentially lethal force requiring stringent justification.

It held that the proportionality analysis should be expanded to include proportionality between the nature and degree of force used and the threat posed by the fleeing suspect to the police, other individuals, and society. In assessing reasonableness, weight should also be given to contextual factors such as the suspect’s youth, whether the suspect was armed, physical build, and whether apprehension could realistically have been achieved by other means.

Reading down section 49(1)

The court held that such an approach could be accommodated within section 49(1) because the statutory text already required that the force used be “reasonably necessary”. Conduct that is unreasonable in constitutional terms cannot qualify as “reasonably necessary” to achieve the statutory objective. The court therefore concluded that section 49(1) could and should be interpreted so as generally to exclude the use of a firearm (or similar weapon) against a fleeing suspect unless the arrestor has reasonable grounds for believing either that the suspect poses an immediate threat of serious bodily harm to the arrestor or the public, or that the suspect has committed a crime involving the infliction or threatened infliction of serious bodily harm. The court acknowledged that there may be exceptions, but treated this as the general interpretive rule flowing from constitutional reasonableness.

Application to the facts

Applying this constitutionally informed interpretation, the court found the shooting unlawful. It accepted that motor vehicle theft is a serious offence and prevalent, and that society has a substantial interest in combatting it. However, it considered decisive that Justin was unarmed, was 17 years old, and was evidently a youth; there was no allegation of hijacking, assault, or other physical violence; and Cox faced no immediate threat to himself or the public. In these circumstances, the court considered that the respondent had not shown an interest so pressing as to justify the serious violation of Justin’s physical integrity.

The court also noted that the respondent bore the onus to justify the infringement, and it was not shown that the suspects’ identities could not have been established through investigative means such as fingerprinting or witness accounts. The absence of an immediate threat or a violent offence meant that the use of a firearm to prevent flight failed the constitutional reasonableness standard as incorporated into section 49(1).

5. Outcome and Relief

The Supreme Court of Appeal upheld the appeal. It set aside the order of absolution from the instance and held that Inspector Cox’s shooting of Justin was unlawful under section 49(1) as constitutionally interpreted.

The matter was referred back to the court a quo for the quantification of damages. The respondent was ordered to pay the appellant’s costs of appeal, including the costs of two counsel.

Cases Cited

Investigating Directorate: Serious Economic Offences and Others v Hyundai Motor Distributors (Pty) Ltd and Others: In re Hyundai Motor Distributors (Pty) Ltd and Others v Smit N O and Others [2000] ZACC 12; 2001 (1) SA 545 (CC).

De Lange v Smuts N O and Others [1998] ZACC 6; 1998 (3) SA 785 (CC).

National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others 2000 (2) SA 1 (CC).

S v Bhulwana; S v Gwadiso [1995] ZACC 11; 1996 (1) SA 388 (CC).

R v Britz 1949 (3) SA 293 (A).

Mazeka v Minister of Justice 1956 (1) SA 312 (A).

Matlou v Makhubedu 1978 (1) SA 946 (A).

Tennessee v Garner 471 U.S. 1 (1985).

Reference under s 48 (A) of the Criminal Law (Northern Ireland) Act 1968 (1 of 1975) [1976] 2 All ER 937 (HL).

McCann and Others v United Kingdom [1995] ECHR 31; (1996) 21 EHRR 97.

The Queen v Douglas Lines (Ontario, 13 April 1993) (unreported).

Bundesgerichtshof (1992) 5 St R 370/92, BGH St 39/1.

Legislation Cited

Criminal Procedure Act 51 of 1977, section 49(1).

Constitution of the Republic of South Africa Act 200 of 1993 (Interim Constitution), sections 8(1), 9, 10, 11(1), 25(3)(e), 33(1), and 35(3).

Constitution of the Republic of South Africa, 1996, section 39(2).

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The Supreme Court of Appeal held that, although section 49(1) authorises the use of force reasonably necessary to prevent a suspect from fleeing, the constitutional requirement of reasonableness must be interpreted to include a limitation on the use of firearms or similarly potentially lethal force.

On the court’s interpretation, the use of a firearm to prevent the escape of a fleeing suspect is generally excluded unless the arrestor has reasonable grounds for believing that the suspect poses an immediate threat of serious bodily harm to the arrestor or the public, or that the suspect has committed a crime involving the infliction or threatened infliction of serious bodily harm.

Applying that interpretation, the court found that Inspector Cox acted unlawfully in shooting Justin Govender, an unarmed 17-year-old fleeing after involvement in a non-violent motor vehicle theft, where no immediate threat to the police or the public was present. The appeal was upheld, and the matter was remitted for quantification of damages, with costs awarded to the appellant.

LEGAL PRINCIPLES

Statutory provisions authorising limitations on fundamental rights must, where reasonably possible, be interpreted in conformity with the Bill of Rights, promoting the spirit, purport, and objects of constitutional protections, rather than being applied through pre-constitutional literalism.

The “reasonably necessary” standard in section 49(1) of the Criminal Procedure Act 51 of 1977 requires a constitutionally informed assessment of reasonableness, which can exclude conduct that, though instrumentally effective in preventing flight, is constitutionally disproportionate.

Proportionality in assessing the justification for force under section 49(1) is not confined to the relationship between the seriousness of the offence and the degree of force used; it also includes proportionality between the nature and degree of force and the threat posed by the fleeing suspect to police officers or the public.

The use of a firearm against a fleeing suspect is, as a general rule, impermissible unless the arrestor has reasonable grounds to believe that the suspect poses an immediate threat of serious bodily harm to the arrestor or others, or that the suspect is reasonably believed to have committed a crime involving the infliction or threatened infliction of serious bodily harm.

In delictual claims arising from police shootings in the course of attempted arrests, where the conduct is prima facie an infringement of protected interests, the defendant bears an onus to establish a recognised justification; absent a constitutionally compliant justification, the conduct remains wrongful.

Govender v Minister of Safety and Security (342/99) [2001] ZASCA 80 (1 June 2001)