Brief Summary

Delict — Negligence — Liability of the State for wrongful death — First respondent's husband shot by Defence Force member while passenger in a vehicle — Appellant admitted shooting but denied negligence and unlawfulness — Trial court found appellant liable, ruling that the shooting was unlawful and negligent — Appeal against findings of negligence and liability — Court held that the Defence Force member acted unlawfully in shooting at the vehicle, which resulted in the deceased's death, and that contributory negligence by the driver was not established.

Comprehensive Summary

Summary of Judgment

1. Introduction

This was an appeal in the Supreme Court of South Africa (Appellate Division) arising from a delictual damages action for loss of support following a fatal shooting. The litigation concerned whether the death of Linda Ann Basdeo’s husband (the deceased) was legally attributable to the Government of the Republic of South Africa (as employer of the soldier who fired the shot), and whether the driver of the vehicle, Noel Campbell, was contributorily negligent.

The appellant was the Government of the Republic of South Africa. The first respondent was Linda Ann Basdeo, suing for damages allegedly suffered by herself and her minor children as a consequence of her husband’s death. The second respondent, Noel Campbell, was the driver of the vehicle in which the deceased was a passenger at the time of the shooting.

In the Durban and Coast Local Division, the first respondent instituted action alleging that the deceased’s death was caused by the wrongful and unlawful acts, alternatively negligence, of one or more members of the South African Defence Force (acting within the course and scope of employment). The Government admitted that a Defence Force member shot the deceased but denied negligence and (on pleaded grounds) unlawfulness. The Government then joined Campbell as a third party under Rule 13 of the Uniform Rules of Court, alleging that Campbell’s negligent conduct contributed to the shooting. By agreement, the trial proceeded on the separated issue of liability only.

The trial court held that (i) the soldier’s conduct was unlawful and negligent, rendering the Government liable to the first respondent, and (ii) Campbell’s alleged contributory negligence was not established. Leave to appeal was granted by the trial judge. On appeal, the Government challenged both findings: liability to the first respondent and the dismissal of the claim over against Campbell.

The general subject-matter of the dispute was the lawfulness and negligence of the use of force (a firearm discharge) by Defence Force members exercising policing-type powers at a roadblock, and the allocation of responsibility (including contributory negligence) where an innocent passenger is killed.

2. Material Facts

During the evening of 14 June 1990, a Defence Force unit under Lieutenant Muller set up a roadblock on the South Coast Road near the southern border of Natal. The purpose was to intercept illegally imported arms believed to be brought into the country from Transkei. The roadblock was arranged so that the unit targeted vehicles travelling northwards after entering Natal from the south. A boom was erected over the western lane, the area was brightly illuminated, and warning signs and flashing lights were placed south of the boom.

Two “stopper” soldiers, Riflemen Apostolides and Wichmann, were deployed as the southern stopper group about 378 metres from the boom. They were armed and positioned next to the road to prevent vehicles from escaping. The deceased and Campbell (both Durban residents) left Durban at about 17h45 in the deceased’s car, with Campbell driving. Their destination was a hotel in Transkei near the border where they intended to meet their wives.

It was undisputed that Campbell observed the roadblock while driving south, realised (on his own evidence) that it was “for the cars coming from the Transkei,” and drove past it southwards. After proceeding further, he turned around at a point where his vehicle could not be seen from the boom or by the stopper group, drove back northwards past the “Roadblock Ahead” signs, slowed down, made a U-turn, and sped back towards the border (southwards).

Apostolides and Wichmann did not know that the vehicle had earlier passed them from the north. From their perspective, the vehicle appeared to be approaching from the direction of the border and executing suspicious manoeuvres suggestive of evading the roadblock. They stepped into the road and signalled the driver to stop: Wichmann used a torch and Apostolides raised his hand. The vehicle did not stop, and both soldiers jumped out of the way as it passed.

After the car passed them, Apostolides fired a single shot at the moving vehicle, aiming below the left-hand tail light. His stated purpose was to hit the wheel to immobilise the car and apprehend the driver. The shot did not strike the wheel. Instead, the bullet struck the tarred surface of the road behind the car, ricocheted, penetrated the car, passed through the left front passenger seat where the deceased was sitting, and struck the deceased. The deceased was taken to hospital but died approximately a week later from the bullet wound.

There were disputed versions at trial regarding aspects of the events leading to the shooting, with Campbell testifying for the first respondent and members of the roadblock detail for the Government. The trial court rejected Campbell’s evidence on crucial issues, and the appeal proceeded largely on the factual findings based on the evidence accepted as a whole, as summarised above.

3. Legal Issues

The appeal required determination of three central legal questions.

The first question was whether the deceased was killed unlawfully. This required assessing whether the Government could justify the fatal injury caused by its employee, in light of the pleaded reliance on the Defence Force members’ policing powers and on the circumstances said to entitle them to arrest Campbell and to fire at the vehicle. This question primarily concerned the application of legal standards of wrongfulness (lawfulness/unlawfulness) to the established facts, involving a normative value judgment informed by considerations of reasonableness, policy, and the legal convictions of the community.

The second question was whether the shot was fired negligently. This concerned the application of the reasonable person standard to the conditions under which Apostolides fired at the vehicle, including visibility, distance, movement, and the risks posed to vehicle occupants. This was an application of law to fact.

The third question was whether the Government had established contributory negligence on Campbell’s part (as third party), i.e., whether Campbell’s driving conduct fell short of the reasonable standard and contributed causally to the deceased’s death. This also involved applying the negligence standard to facts, and then making an evaluative apportionment of fault.

4. Court’s Reasoning

The Appellate Division approached the matter from the premise that, because “every man has a right not to be injured in his person or property,” the onus rested on the Government to justify the injury and death. The Government’s plea set out a justification based on: Defence Force members being employed in a service contemplated by section 3(2)(a) of the Defence Act, 1957; powers conferred by regulations incorporating specified Criminal Procedure Act 51 of 1977 powers; the roadblock’s law-enforcement purpose; the driver’s alleged commission of an offence in the presence of the soldiers; entitlement to arrest without warrant; the firing of a shot to prevent flight; and the absence of reasonable alternative means. Although the plea did not explicitly articulate how these matters rendered the fatal harm to the passenger lawful, counsel for the Government argued that the deceased was “accidentally” struck by a shot lawfully fired at the vehicle in pursuit of a legitimate arrest, and that this sufficed to negate unlawfulness.

In addressing unlawfulness, the court accepted (for purposes of argument and without finally deciding) several matters in the Government’s favour: that the soldiers could suspect an attempted attack on their lives; that Apostolides was entitled to arrest Campbell for attempted murder; and that, had Campbell been the sole occupant, Apostolides would have been entitled under section 49(2) of the Criminal Procedure Act 1977 to shoot at the car in the manner described. The court did so because the trial judge had not made express findings on those issues and because the appeal could be resolved on the narrower question of whether conduct potentially lawful against the suspect could still be unlawful in its consequences for a passenger.

A critical point in the court’s reasoning was the accepted principle that conduct lawful towards one person may nonetheless be unlawful towards others, particularly innocent bystanders. The Government disavowed reliance on section 49(2) as a standalone justification for harm to persons other than the suspect. The court treated the decisive question as whether Apostolides’ firing at the vehicle could be regarded as lawful in respect of its consequences for the other occupant, applying the general criterion of reasonableness used to determine wrongfulness in delict, which rests on morality, policy, and the legal convictions of the community, assessed in all the circumstances.

The Government advanced an alternative argument that the foreseeability of a passenger was irrelevant: even with knowledge of the deceased’s presence, the soldier would have been entitled to shoot at the car to prevent the driver’s escape, and if a wheel shot had caused the car to crash and burn, the conduct would still be lawful towards both occupants. The court rejected this as an impermissible extension of section 49(2), inconsistent with community legal convictions and legal policy. It reasoned that the statutory power to use lethal force on reasonable suspicion is “awesome” and must be exercised with circumspection within strict bounds; it cannot operate as a licence to kill innocents or justify shooting in circumstances where foreseen harm to bystanders is disregarded.

The court treated foreseeability of harm as relevant to wrongfulness. It endorsed an approach in which a legal duty to act reasonably arises when a reasonable person would foresee and guard against harm to legally protected interests. On the facts, Apostolides conceded he could not see whether there were passengers and did not consider that possibility. The court nevertheless upheld the trial court’s finding that the presence of a passenger was reasonably foreseeable, because it is a common occurrence that a driver is not alone. The court distinguished authority where a passenger’s presence was not reasonably foreseeable because no occupant revealed themselves over an extended pursuit.

However, foreseeability of passenger presence did not end the enquiry. The court further examined whether the circumstances were such that Apostolides could “safely” shoot without risk to another occupant. On the accepted facts, it held that the risk of harming a passenger was real and foreseeable because the shot was taken at a moving target at night under poor conditions. The night was dark and moonless; the vehicle was moving away; the distance was increasing; Apostolides had no reliable means to gauge range; he could likely not see the rifle barrel or sights; he had to fire quickly before the vehicle disappeared around a bend; and he used a standard military rifle of unknown accuracy at that range. In those circumstances, an accurately placed shot was effectively not achievable, and the potential for the bullet to strike the vehicle or ricochet and injure an occupant was a foreseeable consequence. The court therefore found the trial court’s conclusion on unlawfulness unavoidable.

On negligence, the court held that the finding against Apostolides was “beyond criticism.” The negligence enquiry overlapped substantially with the wrongfulness analysis: a reasonable person in Apostolides’ position would not have fired in those circumstances. The court rejected the argument that the shooting was at most a non-culpable error of judgment. It emphasised that Apostolides’ own evidence showed he deliberately chose to aim at the left wheel because he appreciated a risk to oncoming traffic if he fired at the other wheel, yet the more obvious risk of injuring a passenger in the car did not occur to him. This failure indicated a marked deviation from the reasonable standard.

The remaining issue was Campbell’s alleged contributory negligence. The trial court had reasoned that an ordinary citizen was generally entitled to evade a roadblock, had no knowledge of roadblock operations, and had no reason to anticipate being shot at. The Appellate Division agreed that a person is generally not obliged to pass through a roadblock, but it viewed Campbell’s behaviour as suspicious and inadequately explained. The court accepted that Campbell’s conduct (two changes of direction, including a U-turn with screeching tyres near the boom and then speeding away) would naturally attract the soldiers’ attention and would reasonably be viewed as an attempt to evade the roadblock.

Where the Appellate Division differed from the trial court was in assessing what Campbell must have appreciated when confronted by armed soldiers signalling him to stop. On the accepted evidence, Campbell had ample opportunity to see the torch signal and to associate it with the roadblock, because he had recently passed the boom and observed the soldiers and the nature of the roadblock. He must have known that his abrupt manoeuvres would have drawn attention. The court considered that he could not have failed to see two uniformed soldiers in the road signalling him to stop and then moving out of his path. Despite this, he continued driving rather than stopping to ascertain what was occurring, thereby exposing himself and his passenger to foreseeable risk. Given that Campbell knew the soldiers were armed (from having seen them at the boom), the court held that he should reasonably have anticipated that they might use their weapons. This established negligence on Campbell’s part contributing causally to the deceased’s injury and death.

In apportioning fault, the court made an evaluative judgment that Campbell’s contributory negligence should be assessed at 40%. While Campbell’s conduct was negligent and causally contributory, the court did not rate his fault higher than 40% in the circumstances.

5. Outcome and Relief

The appeal against the order in favour of the first respondent was dismissed, with costs (including the costs of two counsel). The Government therefore remained liable to the first respondent for the damages arising from the deceased’s death, on the basis that Apostolides’ conduct was unlawful and negligent.

The appeal against the order in favour of the second respondent was upheld, with costs (including the costs of two counsel). The trial court’s order was amended by the addition of a declaration that the third party (Campbell) is liable to the defendant (the Government) for 40% of the plaintiff’s damages.

The effect was that, while the first respondent’s claim against the Government succeeded in full as between plaintiff and defendant, the Government obtained a contribution declaration against Campbell for 40% of the damages payable to the first respondent.

Cases Cited

Cape Town Municipality v Paine 1923 AD 207.

Minister of Law and Order v Monti 1995 (1) SA 35 (A).

George NO v Minister of Law and Order 1987 (4) SA 222 (SECLD).

Hughes en Andere v Minister van Wet en Order en Andere 1992 (1) SACR 338 (A).

Marias v Richard en ’n Andere 1981 (1) SA 1157 (A).

Lillicrap, Wassenaar and Partners v Pilkington Brothers (SA) (Pty) Ltd 1985 (1) SA 475 (A).

Knop v Johannesburg City Counsel 1995 (2) SA 1 (A).

Indac Electronics (Pty) Ltd v Volkskas Bank Ltd [1991] ZASCA 190; 1992 (1) SA 783 (A).

Minister of Law and Order v Kadir [1994] ZASCA 138; 1995 (1) SA 303 (A).

Administrateur, Natal v Trust Bank van Afrika Bpk 1979 (3) SA 824 (A).

Bayer South Africa (Pty) Ltd v Frost 1991 (4) SA 559 (A).

Prince and Another v Minister of Law and Order and Others 1987 (4) SA 231 (ECD).

Mhlongo and Another NO v Minister of Police 1978 (2) SA 551 (A).

Legislation Cited

Defence Act, 1957, section 3(2)(a).

Criminal Procedure Act 51 of 1977, sections 21, 22, 23(a), 25, 27, 29 to 36, 39 to 41, 44, 47, and 49(2), and the First Schedule.

Regulations published by Government Notice R325 of 24 February 1984 (as amended), Chapter XIII.

Rules of Court Cited

Uniform Rules of Court, Rule 13.

Held

The Appellate Division held that the Government failed to justify the deceased’s death: even assuming the shooter had lawful authority to arrest the driver and would have been entitled under section 49(2) to fire at the vehicle if the driver were alone, the firing was unlawful in respect of the passenger because the presence of a passenger and the risk of harm in the prevailing shooting conditions were reasonably foreseeable, and the conduct was inconsistent with the legal convictions of the community.

The court further held that the soldier’s firing was negligent, given the poor visibility, moving target, uncertain range, and the foreseeable risk to occupants, and because the shooter did not consider the risk to a passenger.

On contributory negligence, the court held that the driver, Campbell, acted negligently by failing to heed uniformed soldiers’ signals to stop and by continuing to drive away despite knowing the roadblock was manned by armed soldiers and despite the foreseeable risk that they might use their weapons. Campbell’s negligence was assessed as contributing 40% to the plaintiff’s damages for purposes of the Government’s claim over against him.

LEGAL PRINCIPLES

Wrongfulness (unlawfulness) in delict is assessed by applying a general criterion of reasonableness, which involves a normative evaluation informed by considerations of morality, policy, and the community’s legal convictions, and requires consideration of all the circumstances.

A defendant who causes injury must justify the harm to avoid delictual liability; where a right to bodily integrity is infringed, the onus lies on the party asserting justification to plead and prove facts rendering the conduct lawful.

Conduct that may be lawful towards an intended target (such as a suspect) may nonetheless be unlawful towards third parties, including innocent passengers or bystanders; statutory arrest-force provisions cannot be treated as a licence to disregard foreseen harm to non-target persons.

In assessing wrongfulness and duty, foreseeability of harm to legally protected interests is relevant, and may support the existence of a duty to act reasonably toward those at risk.

Negligence is determined by whether a reasonable person in the actor’s position would have foreseen harm and taken steps to avoid it; firing at a moving vehicle at night under poor conditions, where accurate placement is not reasonably achievable and risks to occupants are foreseeable, can constitute negligence.

A person’s entitlement to avoid a roadblock does not immunise them from a finding of contributory negligence where their conduct, viewed in context, foreseeably provokes a law-enforcement response and they fail to take reasonable steps (such as stopping when signalled by armed officers), thereby contributing causally to ensuing harm.

Government of the Republic of South Africa v Basdeo and Another (688/94) [1995] ZASCA 107 (21 September 1995)