Summary of Judgment

Introduction

The matter concerned a delictual claim for damages arising from the fatal shooting of Lungile Lennox Ntamo by members of the South African Police Service (SAPS). The respondents (Nosise ko Joyce Ntamo and her minor children) sued the appellant, the Minister of Safety and Security, in his capacity as the employer of the police officers involved, for loss of support following the deceased’s death.

The proceedings originated as an action in the Transkei High Court. At the start of the trial, the parties agreed to a separation of issues in terms of Rule 33(4) of the Uniform Rules of Court, with the trial proceeding on merits (liability) only and quantum standing over for later determination. The trial court (Madlanga AJP) found in favour of the respondents on liability, and the judgment was reported as Ntamo and Others v Minister of Safety and Security 2001 (1) SA 830 (Tk). The trial court refused leave to appeal, and the present appeal came before the Supreme Court of Appeal with leave granted by that Court.

The general subject matter of the dispute was whether the SAPS members’ use of lethal force was lawfully justified, given that it was common cause that they shot and killed the deceased while acting in the course and scope of their employment.

Material Facts

It was admitted in the Minister’s plea that SAPS members shot and killed the deceased on 21 September 1994 at Tsomo in the Transkei. It was also common cause that the SAPS members were acting within the course and scope of their employment, so that the Minister would be vicariously liable if the shooting was wrongful and not justified. The only substantive defence raised was that the police members’ actions were necessary for their protection and that of the public, placing justification squarely in issue.

The deceased was travelling as a passenger on a bus from Cape Town to Umtata, with Engcobo as his destination. As the bus was approaching Tsomo (which was not on the route to Engcobo), the deceased became involved in an argument with other passengers. When the bus reached the bus rank at Tsomo, the deceased grabbed a passenger, slapped him, and pointed a cocked firearm at him. The bus driver got off the bus and hurried to the police station to report the incident, and before reaching the station he heard a gunshot.

Four policemen were assigned to investigate, led by Sergeant Manana (not in uniform). The other members were Sergeants Baninzi and Mapongwana, and Constable Msebi, all in uniform and armed with R5 automatic rifles, while Manana carried a 9mm pistol. As they approached the bus, the three uniformed members positioned themselves in a semi-circle relative to the bus. The plan was for Manana, being in civilian clothes, to approach the deceased, identify himself as a policeman, and attempt to disarm him under the expectation that the deceased might initially mistake him for an ordinary member of the public.

The trial record, as characterised by the court a quo and accepted in substance by the Supreme Court of Appeal, reflected that the police evidence about what occurred after Manana approached the deceased was confusing and contradictory. The Supreme Court of Appeal nevertheless accepted, for purposes of its analysis, that Manana introduced himself, tried to dispossess the deceased by taking the deceased’s armed arm and positioning it over Manana’s shoulder while ordering him to drop the weapon, and that the deceased did not comply but instead pushed Manana aside, after which Manana ran for cover fearing the deceased would shoot him.

What followed was not clearly established, except that at least three policemen fired repeatedly at the deceased until he fell. The post-mortem examination recorded two fatal wounds to the right chest, with additional entry and exit wounds, and the probable cause of death was bleeding in the chest.

In relation to the critical factual question—whether and in what manner the deceased fired at the police—the versions were inconsistent. Mapongwana and Baninzi testified that they fired because the deceased discharged his firearm first. Mapongwana stated in oral evidence that the deceased fired one shot in Baninzi’s direction and a second in Mapongwana’s direction, but his police statement recorded that the deceased fired two shots at Baninzi. Mapongwana sought to explain the contradiction by claiming shock at the time of making his statement. He also gave unclear evidence about whether the deceased continued firing after the first shot, stating that the noise of police firearms prevented him from knowing.

Baninzi testified that after the deceased pushed Manana, the deceased fired two shots in Baninzi’s direction, after which Baninzi retreated, lay down, and fired in the deceased’s direction. Baninzi was not sure whether the deceased fired any further shots because he responded quickly. Although Baninzi asserted protection of his own life and the public, the evidence placed members of the public at some distance, and there was no evidence suggesting that the public was in danger of being shot at the relevant time.

Manana testified that while he ran away he heard two shots, without knowing who was being shot. He then fired twice at the deceased while the deceased was standing and facing the three colleagues who were lying down. Manana asserted that he shot to save his own life and the lives of others.

There were further objective uncertainties. Evidence differed on how many cartridges were found at the scene from the deceased’s firearm: Mapongwana referred to one cartridge, whereas Lieutenant Swanqu testified that he found two cartridges near the bus, about two-and-a-half paces apart.

Legal Issues

The central legal question was whether the appellant (the Minister), bearing vicarious responsibility for the SAPS members, had established a justification defence for the killing, namely that the police used lethal force out of necessity for their protection and/or that of the public.

The dispute was primarily one of application of legal principles to contested facts, involving factual evaluation about whether the policemen (objectively, on the proved facts) faced a threat justifying the use of lethal force. The question also entailed a fact-bound assessment of whether the evidentiary uncertainties and contradictions permitted a finding that the shooting was justified.

A further legal issue, not in dispute between the parties but decisive in the appeal, concerned the onus of proof: whether the appellant bore the burden to prove justification, given the admitted shooting and killing by SAPS members acting within the scope of employment.

Court’s Reasoning

The Supreme Court of Appeal proceeded from the accepted principle that where a defendant admits the killing but raises justification, the defendant bears the onus of proving that justification. The Court recorded that this allocation of the burden was common cause at trial and correct, citing authoritative precedent.

On the evidentiary assessment, the Court accepted that the police witnesses’ accounts of events after Manana approached the deceased were materially contradictory and confusing. Although it was prepared to accept (for purposes of the appeal) a limited sequence—Manana’s attempted disarming, the deceased pushing him aside, and Manana seeking cover—the Court considered the key question to be what occurred immediately before the police opened fire and whether circumstances then existed that justified lethal force.

The Court held that the evidence did not allow a reliable finding that the police lives, or the public, were in danger at the time the deceased was shot and killed. The Court emphasised the uncertainty on whether the deceased fired at all after pushing Manana, whether he fired one or two shots, and at whom those shots were directed. It highlighted internal inconsistencies in Mapongwana’s version as between oral evidence and his contemporaneous police statement, and uncertainty within Baninzi’s version about further shots. The Court also noted the discrepancy between evidence about the number of spent cartridges found from the deceased’s firearm.

The Court further observed that, on the evidence, members of the public were at a distance and there was no evidential foundation to support the contention that the public was at risk at the relevant time. Given these uncertainties and the contradictions in the police evidence, the Court concluded that the appellant failed to establish, on a balance of probabilities, that the fatal shooting was justified. The absence of evidence from the respondents did not cure the deficiency because the onus remained on the appellant throughout.

Outcome and Relief

The Supreme Court of Appeal dismissed the appeal and upheld the trial court’s finding on liability.

The appellant was ordered to pay the respondents’ costs of appeal.

Cases Cited

Mabaso v Felix 1981 (3) SA 865 (A).

Ferreira v Ntshingila 1990 (4) SA 271 (A).

Ntamo and Others v Minister of Safety and Security 2001 (1) SA 830 (Tk).

Minister of Safety and Security v Ntamo and Others (389/01) [2002] ZASCA 127; 2003 (1) SA 547 (SCA).

Legislation Cited

No legislation was cited in the judgment.

Rules of Court Cited

Rule 33(4) of the Uniform Rules of Court.

Held

The Court held that, although the Minister admitted that SAPS members shot and killed the deceased in the course and scope of their employment, the Minister failed to discharge the onus of proving justification for the killing. The evidence, primarily from police witnesses, was contradictory and uncertain on whether the deceased fired at the police and whether any imminent danger existed to the police or the public at the time lethal force was used. As a result, liability for the wrongful killing was established against the Minister, and the appeal against the merits finding failed.

LEGAL PRINCIPLES

A defendant who admits the killing (or harmful conduct) but relies on justification bears the onus of proving that the conduct was lawful, including in cases involving alleged defensive action by police officials.

Where the evidence on which justification is based is confused, contradictory, or uncertain on material aspects—such that a court cannot find that the requirements for justification are met on a balance of probabilities—the party bearing the onus fails, even if the opposing party called little or no evidence.

A court may, under Rule 33(4) of the Uniform Rules of Court, separate the determination of merits and quantum, enabling the litigation to proceed first on liability while postponing the assessment of damages.