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[2026] ZANCHC 36
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Mbanga v Minister of Police (CA & R 63/2024) [2026] ZANCHC 36 (30 April 2026)
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THE HIGH COURT OF
SOUTH AFRICA
(NORTHERN CAPE
DIVISION, KIMBERLEY)
Reportable
/Not
Reportable
Case
no:
CA & R 63/2024
In
the matter between:
SIPHIWE
MATHEWS MBANGA
Appellant
and
THE
MINISTER OF
POLICE
Respondent
Neutral
citation:
Mbanga v The Minister of
Police
(CA & R 63/2024) 30 April 2026.
Coram:
Stanton J
et
Groenewaldt AJ.
Heard:
16 February 2026.
Delivered:
30 April 2026.
Summary:
Appeal against dismissal of appellant’s claim for
damages arising from his shooting by a member of the South African
Police
Service – Whether the trial court erred in finding that
the appellant bore the onus to prove that the South African Police
Service member unlawfully shot him; and that the police officers
failed to comply with their statutory duty as set out in
s 49(2)
of
the
Criminal Procedure Act 51 of 1977
– Whether the force was
not reasonably necessary and proportional to the alleged threat posed
by the appellant in the circumstances
– Appeal upheld.
ORDER
1.
The appeal is upheld with costs on a party
and party scale B
as set out in
Rule
69(7)
, read with Rule 67A(3) of the Uniform Rules of Court
.
2.
The order of the Regional Court, Kimberley,
is set aside and replaced with the following:
“
1.
The defendant shall be liable for 100% of the plaintiff’s
proven damages arising out of the injuries
the plaintiff sustained
when he was shot by the police on 08 April 2017.
2.
The defendant shall pay the plaintiff’s costs of suit.
3.
The quantification of the above damages is postponed
sine
die
.
”
JUDGMENT
Stanton
J
Introduction:
[1]
This is an appeal against the judgment of
the court a quo dismissing the appellant’s claim for damages
resulting from an undisputed
shooting incident (“the shooting
incident”) that occurred on 08 April 2017 when the appellant
was shot by a member
of the South African Police Service (“the
SAPS”).
[2]
In his plea, the respondent admitted that
the members of the SAPS discharged shots in the direction of the
appellant, but that it
was done in defence of another SAPS member’s
life, which member was attacked by the appellant with a dangerous
weapon or
a purported dangerous weapon; and that the use of force was
necessary and reasonable in the circumstances.
[3]
The
only issue for determination in the court
a
quo
was whether the shooting was justified under s 49(2) of the Criminal
Procedure Act
[1]
(“the
Act”).
Use of force during
arrest: Section 49 of the Act
[4]
Section 49 of the Act regulates the force
that the police may employ to arrest suspects who offer resistance or
flee. It reads:
‘
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.
(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.’
[5]
It
is apparent from the foregoing that section 49 of the Act sets out
several requirements for the successful invocation of the
statutory
defence of justifiable use of force, including “
deadly
force
”,
in arrests. The section outlines requirements for a successful
reliance on the said statutory defence in respect of both
use of
“non-deadly force” and then adds others for the use of
“deadly force”, the latter being statutorily
defined. It
is so that for the use of non-deadly force, the person using the
force must be an “arrestor” within the
meaning of s
49(1); the person against whom the force is used must be a “suspect”
as defined in sub-s (1); the force
used must not be “deadly
force”, which is defined in sub-s (1); the use of force must
arise during or after an attempt
by the arrestor to arrest the
suspect; it must be clear to the suspect that an attempt to arrest
him or her is being made; the
suspect must resist the attempt, or
flee, or resist the attempt
and
flee;
the suspect cannot be arrested without the use of force: the force
must then be
necessary
for
the arrest to take place; in order to effect the arrest, the arrestor
may use ‘such force as may be reasonably necessary
and
proportional in the circumstances to overcome the resistance or to
prevent the suspect from fleeing’.
[2]
[6]
It
is so that “in addition to the requirement that the force must
be reasonably necessary and proportional in the circumstances”,
the arrestor may use “
deadly
force
”
(as defined above) only if either of these two conditions is met:
(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.
[3]
[7]
Section
49 of the Act engages matters of acute sensitivity, considerable
public importance, and clear constitutional significance.
This Court
is mindful of the dangers that police officers routinely confront in
the execution of their duties, which are often
performed under
conditions of urgency and considerable risk.
[4]
In
such circumstances, officers are required to make decisions that are
both immediate and consequential. Judicial scrutiny of those
decisions must therefore guard against the distorting effects of
hindsight, as courts have consistently cautioned against evaluating
conduct from the comfort of an armchair when it was undertaken in
rapidly evolving and hazardous situations.
[5]
At
the same time, it must be emphasised that SAPS bears a constitutional
mandate to prevent, combat, and investigate crime; to maintain
public
order; to protect and secure the inhabitants of the Republic and
their property; and to uphold and enforce the law.
[6]
[8]
In
order for the use of “
deadly
force
”
as defined in s 49(1)(
c
)
to be justifiable in terms of s 49(2), there must be compliance with
all of the requirements for the use of non-deadly force as
well as
either of the two conditions set out in (
a
)
or (
b
)
of s 49(2) of the Act.
[7]
Deadly
force is defined as “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.
In the context of the present case, the shooting incident is common
cause. To be justifiable under s 49(2), the use of deadly force
must,
inter alia, satisfy the requirement that the force must be
“reasonably necessary and proportional in the circumstances
to
overcome the resistance or to prevent the suspect from fleeing”.
Although this requirement appears in the section as a
separate
requirement from the two additional requirements set out in s
49(2)
(a)
and
(b)
,
it is clear that both
(a)
and
(b)
are
informed and influenced by the notion of proportionality.
[8]
[9]
It
is so that an act that causes injury to another, or death, is prima
facie wrongful. However, s 49(2) sanctions the use of force,
including deadly force, in certain specified instances when effecting
an arrest.
[9]
It
is clear from the section that the use of deadly force is limited
only to those instances where the suspect poses a threat of
serious
violence to the arrestor or any other person or where 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. Thus, the use of force, including deadly
force, is justifiable only in those circumstances
provided for in
section 49 of the Act.
[10]
In
Rabothata
v Minister of Police
2021 (2) SACR 544
(GP), the court expressed itself as follows in
relevant parts:
‘
We
live in a constitutional democracy and our Constitution demands
respect for the life, dignity and physical integrity of every
individual. Whilst s 49(2) of the CPA seeks to grant the right to use
force, including deadly force, in certain circumstances,
it is the
view of this court that its interpretation should be limited to those
genuine instances where the life and/or safety
of the arrestor or
other person is threatened.
. . .
The
provisions of s 49(2) referred to above do not and were not intended
to give carte blanche to members of the SAPS to use force
to effect
an arrest on any suspect. Force, and lethal force in particular, may
only be resorted to when confronted with a situation
stipulated in ss
(2)
(a)
and
(b)
.
Its interpretation must be such that it promotes the value system of
an open and democratic society based on human dignity, equality
and
freedom.’
[11]
[10]
It
is apparent from the foregoing that section 49 of the Act requires an
objective inquiry that seeks to ascertain whether there
was a less
violent means of arresting the suspect. In making such an inquiry,
the court should consider the surrounding facts and
circumstances,
taking into account constitutional values. It has been held that 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 is suspected of having
committed; the force being proportional
in all these
circumstances.
[12]
[11]
The appellant raised 15 grounds of appeal, the gist of which is that
the court
a quo
erred in:
11.1
Finding that the onus rests on the appellant to prove that he was
unlawfully injured by a member of the SAPS;
11.2
Finding that the appellant was not a credible witness as his evidence
was riddled with contradictions, improbabilities and inconsistencies
when compared with his written statement; and
11.3
Finding that the respondent’s witnesses corroborated each
other
in all material respects.
The evidence:
[12]
In view of the trial court’s findings
on credibility and probabilities, it is necessary, for purposes of
this judgment, to
deal with the evidence in full.
The appellant’s
viva voce evidence:
[13]
The appellant, a 59-year-old male at the
time of the incident, testified that he was employed by Mapogo
Security as a security guard
since 2004. According to the appellant,
he was on duty from 18h00 on 08 April 2017 at the mushroom farm (“the
farm”),
wearing his full black uniform and a cap, both
emblazoned in yellow epaulettes. He patrolled the perimeter of the
farm with a torch
and a stick. Later that evening, he noticed three
SAPS vehicles parked outside the gate of the farm, whereafter he
witnessed members
of the SAPS break the lock on the gate to enter the
farm. The SAPS members, all armed with firearms, some wearing
uniforms, others
wearing civilian clothing, approached him. He
informed them that he was on duty as a security guard, and enquired
as to the purpose
of their presence, but they did not respond. Some
of the SAPS members assaulted him by pushing him around, kicking and
trampling
on him. He heard a gunshot, realised that he was shot in
his leg, and fell to the ground. He explained that he was afraid, but
that he did not act aggressively nor attacked the SAPS members with
his stick.
[14]
When cross-examined, the appellant
testified that, in addition to the gunshot wound, he also sustained
abrasions to his leg as a
result of the assault on him by the SAPS
members. He elaborated that he was first assaulted by one SAPS
officer and then shot.
He explained that he only made a statement to
the Independent Police Investigative Directorate (“IPID”),
and not to
the police, as he was treated in hospital and then
imprisoned for three days after the incident.
The
appellant’s written statement to IPID:
[15]
The appellant laid a written complaint to
IPID on 08 May 2017 (“the IPID statement /
written statement”). The record reflects that the validity of
the IPID statement
was a contentious issue. The trial was initially
postponed as the appellant’s legal representative raised
concerns that:
(a)
the IPID statement appeared to have been written by two different
persons; and
(b)
A page thereof was not included. It transpired that the missing page
could not be traced and that Ms Breda, who took down the statement,
would be called to testify on behalf of the respondent. The legal
representative for the respondent confirmed that the statement
was
made with the assistance of an intermediary who translated the
appellant’s version, and the translated version was captured.
The said legal representative further confirmed that no page was
missing, the pages of the statement were just not in the correct
order. The IPID statement was provisionally admitted into evidence.
[16]
Whilst the appellant admitted that the IPID
statement contained his signature, he testified that he spoke
isiXhosa when he deposed
thereto, and that the statement was made to
a male person. He, however, persisted that the IPID statement was
never read back to
him before he signed it. The following
discrepancies between the IPID statement and his oral evidence were
pointed out to him:
(a)
He admitted that he hit a police officer on his
hand and that the said officer’s firearm broke, but during
cross-examination,
he denied that he hit any police officer;
(b)
The assault continued after he was
shot;
(c)
The police officers first spoke to him before they
assaulted him;
(d)
He was assaulted by more than one police officer;
and
(e)
According to the IPID statement, the appellant was
assaulted for approximately an hour, but the J88 only confirms the
gunshot wound
and the bruise on his face.
When confronted with the
discrepancies, the appellant denied that the IPID statement is
correct or that he hit a police officer;
and maintained that it was
not read back to him before he signed it. In addition, he persisted
that the person who took down his
statement did not do so in
accordance with his account.
[17]
Ms. Breda testified that she was an
investigator, employed by IPID during 2017, and that she investigated
the shooting incident
that involved the appellant. According to her
evidence, the appellant gave his statement in isiXhosa, which was
translated into
English by Ms. Dlamini, who speaks isiXhosa and
isiZulu. Ms. Breda confirmed that she wrote down the complete
statement (as translated)
herself and insisted that it was read back
to the appellant before he signed it. She also confirmed that she
commissioned the statement.
When cross-examined, she conceded that
the statement contains mistakes as she did not peruse it before it
was signed. Ms Dlamini
corroborated Ms Breda’s evidence that
pertained to her involvement in the matter, and confirmed that she is
neither a trained
interpreter nor does she have any accreditation as
an interpreter.
The evidence for the
respondent:
[18]
In addition to Ms Breda and Ms Dlamini, the
respondent called three witnesses to testify.
[19]
Captain Harmse (“Harmse”)
testified that he and various other SAPS members were informed that
an armed robbery would
take place on 08 April 2017 at the Lunaka
truck depot (“the depot”), next door to the farm. He
reported for duty with
Sergeant Sereke and Romaine, Constables
Ntapileng, Phutiagaya, Louw, Kwesh and Lebitso. They were informed by
the Crime Intelligence
Unit that there would be an armed robbery
taking place at the depot and that there would not be any security
staff at the scene.
It was a dark evening. Sergeant Romaine yelled at
him that he saw a person in the bushes at the farm, whereafter a
flare was activated
to provide light for a few minutes, and he and
six other members went in pursuit of this person. They walked in a
line, shoulder
to shoulder, in the direction of the bushes. He, Kwesh
and Louw broke away from the line; and he noticed a person lying in
the
tall grass on his stomach, two feet away from him. The light of
the flare had gone out, and the visibility was poor. They were
dressed in full uniform and bulletproof vests, but none had working
torches with them. He was armed with a 9mm pistol, but his colleagues
were armed with pistols and R5s. He shouted “police, police,
police, police” and was immediately attacked with an object
that looked like a panga by the person (appellant). The appellant
struck him hard on his left hand with which he was holding the
firearm and it fell from his hand. He felt a sharp pain in his left
hand. He thought the firearm had fired as he heard an explosion.
The
appellant continued to hit him and he retreated, feeling petrified.
His left index finger had a deep cut and it was operated
on the
following day. Kwesh and Louw shot at the appellant’s legs. The
appellant was struck and he fell. Harmse conceded
that:
(a)
He later identified the weapon as a stick; and that it would not have
been a life-threatening situation if he had known; and
(b)
Shooting a person who was attacking him
with a stick would not be justified in the circumstances, but added
that he was informed
that the robbers would be armed and he had no
reason to doubt the information. He denied that:
(a)
There was a gate at the entrance to the farm;
(b)
They broke the lock;
(c)
The
SAPS members assaulted the appellant; and
(d)
The appellant was wearing a Mapogo uniform. According to him, the
appellant was aggressive and resisted arrest.
[20]
When he was cross-examined, he accepted
that it would have been logical to believe that the farm was also
guarded by a security
guard on that night. When confronted with his
written statement in which he did not disclose that his weapon
exploded in his hand
when it was struck with the stick, he explained
that the damage to the firearm and magazine could not have been
caused by the stick.
He agreed that neither Louw nor Kwesh, in their
written statements, made any reference to the firearm exploding.
According to his
evidence, the appellant was not assaulted in his
presence. He confirmed that none of the members, save for Ntapileng,
who fired
one shot from outside the farm, fired any warning shots. He
also confirmed that none of the SAPS members attempted to restrain
the appellant prior to him being shot as everything happened very
fast.
[21]
Warrant Officer Louw (Louw) corroborated
Harmse’s version of the events and added that he decided to
fire a shot in the appellant’s
direction when he saw that
Harmse was in danger. Louw testified that Kwesh also fired a shot at
the appellant. However, he could
not say which shot injured the
appellant. According to his observation, the appellant, wearing
civilian clothes and not a uniform,
was very close to Harmse when he
(Louw) fired the shot in the appellant’s direction. He also
believed that the weapon used
by the appellant was a panga, but later
saw that it was a stick. When cross-examined, Louw testified that the
stick looked like
a “piksteel”, but conceded that it was
a very thin stick. He then added that it could still be considered a
deadly
weapon. He did not hear any explosion and could not explain
how Harmse’s firearm was damaged. When they approached the
appellant,
they noticed that he was an old man.
[22]
Sergeant Kwesh testified and corroborated
Harmse and Louw’s evidence, save to state that Harmse was only
struck twice, once
on his arm. Kwesh’s evidence was that he
also fired a shot in the appellant’s direction. He could not
remember whether
the appellant was wearing his Mapogo uniform or not.
When cross-examined, he disputed that the stick was thin.
Applicable law on
appeal:
[23]
It
is a trite principle of our law that this court's powers to interfere
on appeal with the findings of fact are limited. In the
absence of
demonstrable and material misdirection by the trial court, its
findings of fact are presumed to be correct and will
only be
disregarded if the recorded evidence shows them to be clearly
wrong.
[13]
Consequently,
this presumption is rebutted by an appellant convincing a higher
court that the trial court’s factual findings
were plainly
wrong. A court of appeal should be aware that the court
a
quo
would
have been steeped in the atmosphere of the trial and with this
advantage, been able to make the necessary credibility
findings.
[14]
[24]
Accordingly,
appeal courts in our law are reluctant to interfere with factual
findings made by trial courts, more particularly if
the factual
findings depended upon the credibility of the witnesses who testified
at the trial.
[15]
This
Court is also mindful of the fact that the cold record placed before
it does not capture all that occurred at the trial. The
disadvantage
is that the appeal court is denied the opportunity of observing
witnesses testify and drawing its own inferences from
their demeanour
and body language. On the contrary, this is the advantage enjoyed by
the trial court. Hence, an appeal court must
ordinarily defer to the
trial court when it comes to factual findings. Regard being had to
the foregoing, unless it can be shown
that the trial court has failed
to use or has palpably misused its advantage, the higher court ought
not to take the responsibility
of reversing conclusions so arrived
at, merely on the result of their own comparisons and criticisms of
the witnesses and of their
own view of the probabilities of the case.
That notwithstanding, it is clear that the due deference afforded to
a trial court's
credibility findings must not be overstated as same
is not sacrosanct. If it emerges from the record that the trial court
misdirected
itself on the facts or that it came to a wrong
conclusion, the appellate court is duty-bound to overrule factual
findings of the
trial court so as to do justice to the case.
[16]
In
light of the above articulated principles, I proceed to consider the
grounds of appeal below.
First
ground of appeal- onus:
[25]
It
is trite that every infringement of bodily integrity is
prima
facie
unlawful. Thus, an act that causes injury to another, or death, is
prima
facie
wrongful.
[17]
A
conduct that appears
prima
facie
wrongful may be rendered lawful through a ground of justification
which eliminates the apparent wrongfulness of the defendant’s
conduct. The shooting incident in the present case is common cause.
The conduct would be wrongful if it could not be brought within
the
parameters of s 49(2) of the Act.
[18]
Thus,
the
onus
to
establish the justification for the use of “deadly force”
as contemplated in section 49 of the Act in the course
of a Police
Officer carrying out such an arrest rests on the defendant. It has
been observed, correctly so, that the kind of detail
justifying the
application of deadly force is peculiarly within the SAPS member(s)
own knowledge, and it’s only them who
can explain why they
employed the degree of force in question.
[19]
It
is trite that, once the infringement has been established, the onus
shifts to the defendant to allege and prove the existence
of a ground
of justification.
[20]
[26]
At the
commencement of the trial, the court
a
quo
acknowledged
that the respondent bears the onus to prove the grounds of
justification. The court, however, found that the onus was
on the
appellant to prove that a member of SAPS unlawfully shot him; and
that they failed to comply with their statutory duty as
set out in s
49(2) of the Act.
[27]
The
court
a
quo’s
finding that the appellant bore the
onus
is clearly a violation of an entrenched principle of law and a clear
misdirection.
This
Court is of the view that the factual findings of the court
a
quo
were vitiated by a misapprehension of the incidence of the onus
.
The said finding is not only legally erroneous, but also
fundamentally vitiates the factual and credibility findings apparent
from the judgment.
[21]
Consequently,
this Court is accordingly entitled to reassess the evidence and
determine the issues afresh.
Second
ground of appeal- the court
a quo’s
credibility findings
in respect of the appellant:
[28]
The parties presented conflicting versions
of the shooting incident.
[29]
The court
a
quo
made
the following credibility finding in respect of the appellant’s
evidence:
‘
Now,
the appellant was not necessarily a bad witness, but his version of
the events is riddled with contradictions, improbabilities
and
inconsistencies.’
[30]
In
National
Employers’ General Insurance Co Ltd v Jagers,
[22]
the
court set out the correct approach to be adopted in analysing and
assessing evidence in a civil case as follows:
‘
It
seems to me, with respect, that in any civil case, as in any criminal
case, the
onus
can ordinarily only be discharged by adducing credible evidence to
support the case of the party on whom the
onus
rests. In a civil case the
onus
is obviously not as heavy as it is in a criminal case, but
nevertheless where the
onus
rests on the plaintiff as in the present case, and where there are
two mutually destructive stories, he can only succeed if he
satisfies
the Court on a preponderance of probabilities that his version is
true and accurate and therefore acceptable, and that
the other
version advanced by the respondent is therefore false or mistaken and
falls to be rejected. In deciding whether that
evidence is true or
not the Court will weigh up and test the plaintiff’s
allegations against the general probabilities. The
estimate of the
credibility of a witness will therefore be inextricably bound up with
a consideration of the probabilities of the
case and, if the balance
of probabilities favours the plaintiff, then the Court will accept
his version as being probably true.
If however the probabilities are
evenly balanced in the sense that they do not favour the plaintiff’s
case any more than
they do the respondent’s, the plaintiff can
only succeed if the Court nevertheless believes him and is satisfied
that his
evidence is true and that the respondent’s version is
false.’
[31]
In
resolving a factual dispute, I am guided by the following principles
laid down in
Stellenbosch
Farmers’ Winery Group Ltd and Another v Martell et Cie and
Others
:
[23]
‘
.
. .
The
technique generally employed by courts in resolving factual disputes
of this nature may conveniently be summarised as follows.
To come to
a conclusion on the disputed issues a court must make findings on (
a
)
the credibility of the various factual witnesses; (
b
)
their reliability; and (
c
)
the probabilities. As to (
a
),
the court’s finding on the credibility of a particular witness
will depend on its impression about the veracity of the
witness. That
in turn will depend on a variety of subsidiary factors, not
necessarily in order of importance, such as (i) the witness’s
candour and demeanour in the witness-box, (ii) his bias, latent and
blatant, (iii) internal contradictions in his evidence, (iv) external
contradictions with what was pleaded or put on his behalf, or with
established fact or with his own extra curial statements or
actions,
(v) the probability or improbability of particular aspects of his
version, (vi) the calibre and cogency of his performance
compared to
that of other witnesses testifying about the same incident or events.
As to (
b
),
a witness’s reliability will depend, apart from the factors
mentioned under (a)(ii), (iv) and (v) above, on (i) the opportunities
he had to experience or observe the event in question and (ii) the
quality, integrity and independence of his recall thereof. As
to (
c
),
this necessitates an analysis and evaluation of the probability or
improbability of each party’s version on each of the
disputed
issues. In the light of its assessment of (
a
),
(
b
)
and (
c
)
the court will then, as a final step, determine whether the party
burdened with the
onus
of proof has succeeded in discharging it. The hard case, which will
doubtless be the rare one, occurs when a court’s credibility
findings compel it in one direction and its evaluation of the general
probabilities in another. The more convincing the former,
the less
convincing will be the latter. But when all factors are equipoised
probabilities prevail.
’
[32]
From the
judgment, it is clear that the court
a
quo
reached the conclusion about the appellant’s evidence based
substantially on the discrepancies between his
viva
voce
evidence
and his written statement. This being so despite the court’s
expressed dissatisfaction that the statement was “poorly
taken
down if one referred to the grammar, the handwriting and the
language.”
[33]
Mr.
J Harmse, on behalf of the appellant, placing reliance on
Nqadala
v Minister of Police (“Nqadala”)
,
[24]
contended
that the court
a
quo
analysed
the evidence from the incorrect vantage point that the appellant
bears the onus to prove that he was unlawfully shot; and
that the
members of the SAPS failed to comply with s 49(2) of the Act.
[34]
In
Nqadala
,
the court of appeal found that the unfortunate misdirection on the
part of the learned judge had profound consequences for the
basis on
which he evaluated the evidence, and for his extensive credibility
findings. The court of appeal concluded that the court
a
quo’s
judgment reflects a misapprehension regarding the evidentiary burden,
which resulted in an overly critical analysis of the evidence
adduced
by the appellant.
[25]
[35]
It
is so that, where contradictions and inconsistencies arise in
evidence, the court’s task is not to determine which version
is
correct in a literal sense, but rather to assess whether the witness
may have erred due to defective recollection or dishonesty.
The
Supreme Court of Appeal has articulated the proper approach to such
contradictions. In this regard, the approach to contradictions
between two witnesses and contradictions within the evidence of a
single witness (for example, between viva voce testimony and
a prior
statement) is, in principle, the same.
[26]
Useful
guidance in this regard may be sought in
S
v Mafaladiso en Andere
[27]
where
the headnote (in English) reads:
‘
The
juridical approach to contradictions between two witnesses and
contradictions between the versions of the same witness (such
as,
inter alia
,
between her or his
viva
voce
evidence and a previous statement) is, in principle (even if not in
degree), identical. Indeed, in neither case is the aim to prove
which
of the versions is correct, but to satisfy oneself that the witness
could err, either because of a defective recollection
or because of
dishonesty. The mere fact that it is evident that there are
self-contradictions must be approached with caution by
a court.
Firstly, it must be carefully determined what the witnesses actually
meant to say on each occasion, in order to determine
whether there is
an actual contradiction and what is the precise nature thereof. In
this regard the
adjudicator of fact must keep in mind that a previous statement is
not taken down by means of cross-examination,
that there may be
language and cultural differences between the witness and the person
taking down the statement which can stand
in the way of what
precisely was meant, and that the person giving the statement is
seldom, if ever, asked by the police officer
to explain their
statement in detail. Secondly, it must be kept in mind that not every
error by a witness and not every contradiction
or deviation affects
the credibility of a witness. Non-material deviations are not
necessarily relevant. Thirdly, the contradictory
versions must be
considered and evaluated on a holistic basis. The circumstances under
which the versions were made, the proven
reasons for the
contradictions, the actual effect of the contradictions with regard
to the reliability and credibility of the witness,
the question
whether the witness was given a sufficient opportunity to explain the
contradictions – and the quality of the
explanations –
and the connection between the contradictions and the rest of the
witness’ evidence, amongst other factors,
[are] to be taken
into consideration and weighed up. Lastly, there is the final task of
the trial Judge, namely, to weigh up the
previous statement against
the
viva
voce
evidence,
to consider all the evidence and to decide whether it is reliable or
not and to decide whether the truth has been told,
despite any
shortcomings.’
[36]
I
am
mindful of the several discrepancies between the appellant’s
viva
voce
evidence
and his written statement, specifically pertaining to whether the
appellant was assaulted by the SAPS members or not, the
manner of the
alleged assault, and whether he was wearing his Mapogo uniform. In
S
v Mahlangu and Another
[28]
,
the Court made the following insightful observations:
‘
By
reason of the criticism levelled at police witness statements, I find
it necessary to restate the principles relating to written
statements
by witnesses. In order to discredit a witness who made a previously
inconsistent statement it must be shown that the
deviation was
material (
S
v Bruiners en 'n ander
1998 (2) SACR 432
(SE) at 437e;
S
v Mafaladiso en andere
2003 (1) SACR 583
(SCA) at 593e). Deviations which are not material
will not discredit the witness. Police statements and statements
obtained from
witnesses by the police, are notoriously lacking in
detail, are inaccurate and often incomplete . . . It would be absurd
to expect
a witness to say exactly in his statement what he will
eventually say in court. There will have to be indications other than
a
mere lack of detail in the witness's statement to conclude that
what the witness said in court was unsatisfactory or untruthful.
There
is no law that compels a witness what to say and what not to say in
his statement. The witness tells it as he sees it. He
is not expected
to relate in his statement what he saw in the minutest detail. Should
a witness through a lapse of memory or any
other valid reason omit
some detail which later could become important, he should not as a
matter of course be branded as being
untruthful. Moreover the mere
fact that a witness deviates in a material respect from what he said
in his statement does not necessarily
render all his evidence
defective. The court will in the final analysis consider the evidence
as a whole in order to determine
in what respects the witness's
evidence may be accepted and in what respects it should be rejected.
Counsel who act on behalf of
accused persons, are wont to pounce on
any differences, no matter how insignificant, which may arise between
an extra-curial statement
of a witness and the witness's testimony in
court (see
S
v Govender and others
2006 (1) SACR 322
(E) from 326c,where Nepgen J gives an insightful
discourse on this topic). The witness is often lambasted where his
testimony in
court gives more detail than what appears in his written
statement. The more differences that can be found between the
statement
and the testimony in court, the more successful counsel
feels his cross-examination has been. However, as has been pointed
out,
that is not the correct approach. The test is: were the
differences material, always bearing in mind that a witness's
testimony
in court will almost without exception be more detailed
than what the witness said in his written statement.’
[29]
[37]
What is,
however, of importance is that it is common cause that:
(a)
The appellant was shot by a member of the SAPS;
(b)
The appellant only carried a relatively thin stick with him on the
evening in question; and
(c)
The shooting incident happened within a confined area of 2,5m by
2,5m. The appellant’s version in respect of these three
material aspects was, in fact, corroborated by the respondent’s
witnesses.
[38]
Furthermore,
it bears emphasis that
the
record reflects that the court
a
quo
,
contrary to the warning in
Nqadala
,
analysed the evidence from the incorrect vantage point that the
appellant bears the onus to prove that he was unlawfully shot;
and
that the members of the SAPS failed to comply with s 49(2) of the
Act.
[39]
Taking
into consideration that police statements are frequently not taken
with the degree of care, accuracy and completeness desired;
[30]
and
should not be regarded as a precursor to a witness’s testimony
in court,
[31]
I
can reach no other conclusion than that the court
a
quo
erred in finding that the appellant was not a credible witness.
Third
ground of appeal - The respondent’s witnesses corroborated each
other in all material respects
:
[40]
I agree that
Harmse, Louw and Kwesh corroborated each other as they all testified
that:
(a)
The appellant did not wear a Mapogo uniform;
(b)
the
appellant struck Harmse’s hand in which he held his firearm;
and
(c)
Harmse was
attacked by the appellant with a weapon resembling a panga or a
“piksteel”.
[41]
Nonetheless,
the respondent’s witnesses’ evidence cannot withstand
complete scrutiny as their versions contained various
discrepancies
about the details of the attack on Harmse and the damage to his
firearm.
Analysis
and conclusion:
[42]
The
crux of this matter is whether the respondent established, on a
balance of probabilities that the conduct of the SAPS members
in the
circumstances of the present case falls squarely within the ambit of
section 49(2) of the Act. It bears emphasis that the
shooting
incident is common cause. In terms of the Act, “deadly force”
is defined as a 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
.
Accordingly, the Respondent is required to satisfy four aspects under
section 49 of the Act. 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 the 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
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.”
[32]
[43]
I have not
lost sight of the warnings in the authorities against an armchair
judgment of police action that must often be taken
quickly in
dangerous circumstances for the effective prevention of crime or the
protection of the public. However, I also have
not lost sight of the
importance of a balanced evaluation. It is necessary to balance the
responsibility of the police to carry
out their difficult duties
effectively, on the one hand, against the constitutional rights to
life and bodily integrity which lie
at the root of the proper
understanding and application of s 49 of the Act, on the other.
[44]
The
Constitutional Court in
Ex
parte Minister of Safety and Security and Others: In re S v
Walters
[33]
laid
down specific guidelines for how the courts should apply the tests of
reasonable necessity and proportionality to the use of
potentially
deadly
force to prevent a suspect from fleeing from arrest. The criteria
being:
‘
(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 necessary to
carry out the arrest may be used;
(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 is
suspected of having
committed; the force being proportional in all these circumstances;
(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 means of carrying out the arrest, whether at that time or
later;
and
(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.’ (My emphasis underlined.)
[45]
I see no reason why the same criteria
should not be applied in
casu
.
[46]
The court
a
quo
paid
scant attention to the principles outlined in the foregoing criteria.
The Magistrate merely summarised that:
‘
Now,
also looking at the photographs of the crime scene, it appears that
it was pitch dark at the time of the incident. The officers
were
there to arrest armed robbers and it is probable that they could have
thought that the appellant is one of the robbers, especially
when the
person they could not identify disarmed their colleague and injured
their colleague.’
[47]
Even if the
respondent’s witnesses’ version that the appellant
attacked Harmse is accepted as credible, t
he
following objective facts and evidence, which the record reflects a
lack of consideration of, should have been considered by
the court
a
quo
:
47.1
The three police officers were fit, young and experienced. They were
all armed and wearing bullet proof vests.
As such, they were required
to act, in circumstances like these, to the best of their ability;
47.2
The appellant was a 59-year-old man at the time of the incident;
47.3
Although the respondent’s justification was pre-dominantly
underpinned by a perception that Harmse was being
attacked with a
panga or a “piksteel”
in the dark, the
incident took place in an area of 2,5m/2,5m, which to my mind would
have probably improved visibility of the appellant
and his weapon, a
thin stick;
47.4
The concessions by the respondent that
the
shooting of a person who was attacking an officer with a thin stick
would not be justified in the circumstances;
47.5 The
failure to present evidence that there was no alternative way to
intervene in the attack or apprehend the appellant;
47.6 The
failure to use less force; and not firing a warning shot, save for
the one fired by Ntapileng;
47.7 The
evidence that Kwesh and Louw aimed at the appellant’s legs,
each firing once in his direction, and not
at the ground;
and
47.8
The only injury caused to Harmse’s left hand, according to the
J88, was a wound as “an open wound through
and through the left
index finger”.
[48]
In
Govender
v Minister of Safety and Security
2001 (4) SA 273
(SCA)
,
the
Court, albeit dealing with a prevailing version of section 49 of the
Act at the time, made the following instructive observations
which
remain apposite in the present case:
‘
I
am of the view that, in giving effect to s 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 so doing, full weight should be
given to the fact that the
fugitive is obviously young, or unarmed, or of slight build, etc,
and, where applicable, he could have
been brought to justice in some
other way. In licensing only such force, necessary to overcome
resistance or prevent flight, as
is 'reasonable', s 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.
Applying
this broader approach, I am of the view that the shooting of Justin
was unlawful. If one were to apply the test of proportionality
between seriousness of the offence and the force used, it may
correctly be said that the theft of a motor vehicle is a serious
offence and, having regard to the high incidence of this offence in
our country, one that should be combated vigorously. Against
that,
the use of a firearm to shoot at another person is also a serious,
inherently lethal, matter. But it is when the broader
approach of
proportionality between the threat posed by the fugitive and the
degree and nature of the force used, is applied, that
the scale is
tipped in favour of Justin. He was unarmed and Cox did not see a
weapon in his possession. He was 17 years old and
it must have been
obvious to Cox, when he commenced the pursuit of the fugitives, that
they were mere youths. There was no allegation
of hijacking, assaults
or other acts of physical violence having been perpetrated by Justin
or the other passengers in the car.
Nor was there any threat or
danger to the police or members of the public. Under these
circumstances, what interest of society
was so pressing that it
justified the violation of Justin's physical integrity? Can it be
said that in our law the protection of
property (via the criminal law
system) is invariably more important than life or physical integrity?
Surely not. It has not been
shown by the respondent, on whom the
onus
rests, that the identity of the occupants of the stolen vehicle could
not have been established by proper investigative procedures,
for
example fingerprinting of the vehicle, eyewitness accounts of the
theft, etc.
Can
s 49(1) of the Act reasonably be interpreted to encompass the
approach discussed above? I am of the view that it is eminently
possible. The section includes the test of reasonable necessity. That
test was already given a wider meaning by this Court in
Matlou v
Makhubedu
(supra)
, viz proportionality between the force
and the crime committed. It does no violence to the section to
interpret it so that the
'threat' or 'danger' approach is included -
and, in my view, that should be done.
The
words 'use such force as may in the circumstances be reasonably
necessary . . . to prevent the person concerned from fleeing'
in s
49(1)(
b
) of the Act must therefore generally speaking (there
may be exceptions) be interpreted so as to exclude the use of a
firearm or
similar weapon unless the person authorised to arrest, or
assist in arresting, a fleeing suspect has reasonable grounds for
believing
1.
that the suspect poses an immediate
threat of serious bodily harm to him or her, or a threat of harm to
members of the public; or
2.
that the suspect has committed a crime
involving the infliction or threatened infliction of serious bodily
harm.
If
s 49(1) of the Act, thus interpreted, is applied to the facts before
us and for the reasons indicated above, I am of the view
that Cox
acted unlawfully in shooting at and wounding Justin.’
[34]
[49]
I am persuaded that the respondent, in
the circumstances of the present case as set out above, had other
means to subdue the appellant
without inflicting violence / shooting
him. The force applied was not reasonable or proportional to the
threat of violence posed
by the appellant.
[50]
The version of the police falls short of
meeting the statutory requirements.
In the absence of any
legal justification, the
prima facie
unlawfulness of the
respondent’s conduct is conclusive; and constituted an unlawful
assault upon the appellant.
[51]
It
is correct that, where a defendant fails to satisfy all the statutory
requirements for the successful invocation of section 49(2)
as a
ground of justification, the impugned conduct is not thereby rendered
lawful. Reliance on section 49 must accordingly fail.
That, however,
is not dispositive of the matter. Where it emerges as a reasonable
possibility that the members of the South African
Police Service
concerned genuinely believed, subjectively, that they were acting
within the confines of the section, the defendant
may yet avoid
liability on the separate basis of the absence of fault. Thus, even
if, on an objective conspectus of all the evidence,
the court
concludes that the use of force was not necessary to effect the
arrest, with the result that the conduct is wrongful,
the enquiry may
not end there. The question of fault may still have to be determined.
If it is established that the arrestor bona
fide (although erroneous)
believed that the use of force was necessary to effect the arrest,
such belief may exclude intention
(
dolus
).
Moreover, where such belief is not only genuine but also one which a
reasonable person in the position of the arrestor might
have held,
negligence (
culpa
)
may likewise be excluded.
[35]
In
Kgaleng
v Minister of Safety and Security and Another
[2001] 4 All SA 636
(W), the Court, having rejected the plea of
justification on the facts, nevertheless observed:
‘
The defendants may
yet escape liability on the basis that the second defendant's bona
fide (although erroneous) belief that his
conduct was justified,
excluded consciousness of wrongfulness – and thus fault in the
form of
dolus
– on his part, and provided a reasonable man would not have
reacted differently to the way in which the second defendant
reacted
under the circumstances – thereby excluding fault in the form
of
culpa
.
’
[36]
[52]
On
a conspectus of all the evidence, I am satisfied that, both
objectively and subjectively, the members of SAPS acted outside the
scope of s 49(2) of the Act. I accordingly find no merit in the
contention that their conduct was justified. There is, in the
circumstances, no basis upon which the respondent can escape
liability.
[37]
[53]
In the result, the following order is made:
1.
The appeal is upheld with costs on a party
and party scale B as set out in Rule 69(7), read with Rule 67A(3) of
the Uniform Rules
of Court.
2.
The order of the Regional Court, Kimberley,
is set aside and replaced with the following:
“
1.
The defendant shall be liable for 100% of the plaintiff’s
proven damages arising out of the injuries
the plaintiff sustained
when he was shot by the police on 08 April 2017.
2.
The defendant shall pay the plaintiff’s
costs of suit.
3.
The quantification of the above damages is
postponed
sine die
.”
STANTON
J
JUDGE OF THE HIGH COURT
NORTHERN CAPE DIVISION
I
concur
GROENEWALDT
AJ
ACTING
JUDGE OF THE HIGH COURT
NORTHERN
CAPE DIVISION
Appearances
For
the appellant
:
Adv. J Harmse
Instructed
by:
Elliott Maris
Attorneys
For
the respondent
:
Mr. M Ramabulana
Instructed
by:
Office of the State
Attorney.
[1]
51
of 1977.
[2]
See
Du Toit:
Commentary
on the
Criminal Procedure Act
;
RS 65, 2020 ch5-p27-28;
see
also
J Burchell, PJ Schwikkard and TB Mosaka,
Burchell’s
Principles of Criminal Law
,
6
th
edition (2025) at 141.
[3]
Ibid
.
[4]
See
Ex
Parte Minister of Safety and Security and Others: In Re S v Walters
2002
(
2
)
SACR
105 (CC) para 51.
[5]
See
R
v Koning
1953
(3) SA 220
(T) at 226C–G; see also
S
v Gumbi
1962
(1) SA 188
(D) at 190.
[6]
Section
205(3) of the Constitution of the Republic of South Africa, 1996.
[7]
Du
Toit:
Commentary
on the
Criminal Procedure Act
;
RS 70, 2023 ch5-p33; see also
Kotze
v Minister of Safety and Security
2012
(1) SACR 396 (GSJ) para 28.
[8]
Ibid;
see also
Govender
v Minister of Safety and Security
2001
(2) SACR 197
(SCA) para 21.
[9]
Rabothata
v Minister of Police
2021
(2) SACR 544
(GP) para 10.
[10]
See
Masimula
v Minister of Police
[2023]
JOL 59903
(GP) paras 41 - 44.
[11]
See
paras 13 and 83.
[12]
Ex
Parte Minister of Safety and Security and Others: In Re S v Walters
2002 (2) SACR 105
(CC) para 54; see also
Khosa
and Others v Minister of Defence and Military Veterans and Others
2020 (2) SACR 461
(GP) para 64.
[13]
S
v Monyane and Others
2008 (1) SACR 543
(SCA) para 15; see also
S
v Hadebe and Others
1997 (2) SACR 641
(SCA) at 645E – F.
[14]
R
v Dhlumayo and Another
1948
(2) SA 677
(A)
at
705 – 706;
Santam
Bpk v Biddulph
2004
(5) SA 586
(SCA)
para 5
;
see
also
Roux
v Hattingh
2012
(6) 428 (SCA) para12.
[15]
See
S
v Mathekga and Another
2020 (2) SACR 559
(SCA) para 14.
[16]
Makate
v Vodacom Ltd
2016 (4) SA 121
(CC) paras 37- 40; see also
Bernert
v Absa Bank Ltd
2011
(3) SA 92
(CC) para 106.
[17]
Minister
of Safety and Security v Mohofe
[2007] 4 All SA 697
(SCA);
2007 (2) SACR 92
(SCA) para 4; see also
Minister
of Safety and Security v Van Duivenboden
[2002] 3 All SA 741
(SCA);
2002 (6) SA 431
(SCA) para 12.
[18]
Kotze
v Minister of Safety and Security
2012 (1) SACR 396
(GSJ) para 26.
[19]
Mokone
v Minister of Police and Another
[2025] JOL 69877
(WCC) para 45.
[20]
Mabaso
v Felix
1981
(3) SA 865
(A) at 873E– 874E, cited with approval in
Noor
Moghamat Isaacs v Centre Guards CC
[2004]
1 All SA 221
(C) para 7;
Malahe
and Others v Minister of Safety and Security and Others
[1998] ZASCA 64
;
1999
(1) SA 528
(SCA) at 533J – 534A, 540F-H;
Minister
of Safety and Security and Another v Swart
2012 (2) SACR 226
(SCA) para 19
;
See
also
Mugwena
and Another v Minister of Safety and Security
2006
(4) SA 150
(SCA) para 25.
[21]
See
Nqadala
v Minister of Police
[2023] ZAECMHC 23; 2023 JDR 1522 (ECM) para 23.
[22]
1984
(4) SA 437
E at 440D-G.
[23]
2003
(1) SA 11
(SCA) at 14 –15 para 5.
[24]
[2023]
ZAECMHC 23; 2023 JDR 1522 (ECM).
[25]
Ibid
paras
6 and 13.
[26]
See
Siphungu
v Minister of Police and another
[2022] JOL 57021
(ECM) para 42.
[27]
2003 (1) SACR 583
(SCA)
at
584
–
585;
S
v Mkohle
1990
(
1
)
SACR
95
(
A
)
at 93E-I; See also
Robinson
and Others v S
[2019]
JOL 41057
(KZP)
para
9.
[28]
[2012]
JOL 29277
(WC) at 41-42.
[29]
See
also
Siphungu
v Minister of Police and Another
[2022] JOL 57021
(ECM) para 45.
[30]
S
v Xaba
1983 (3) SA 717
(A) at 730B-C.
[31]
S
v Govender and Others
2006 (1) SACR 322
(ECD)
at 325–326.
[32]
Ramasike
v Minister of Police
[2024]
JOL 66913
(GJ) para 24.
[33]
[2002]
JOL 9743
(CC);
2002 (2) SACR 105
(CC) para 54.
[34]
Paras
21-24.
[35]
J
Burchell, PJ Schwikkard and TB Mosaka,
Burchell’s
Principles of Criminal Law
,
6
th
edition (2025) at 147.
[36]
Para
16.
[37]
See
S
v Mathekga and Another
2020 (2) SACR 559
(SCA) paras 6, 15, 17 and 18.