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[2014] ZAWCHC 196
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Kruger v S (A347/2013) [2014] ZAWCHC 196 (17 December 2014)
THE
HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
No: A347/2013
In
the matter between:
JOHANNES
KRUGER
.....................................................................................................
APPELLANT
and
THE
STATE
....................................................................................................................
RESPONDENT
Coram
:
ROGERS J & RILEY AJ
Heard:
12 DECEMBER 2014
Delivered:
17 DECEMBER 2014
JUDGMENT
ROGERS
J:
Introduction
[1]
The appellant is (or was at all material
times) a member of the South African Police Service (‘SAPS’).
The charge against
him arose from an incident which occurred on 22
January 2006 on the road between Elands Bay and Lamberts Bay in which
a Mr Eric
Bulana (‘Bulana’) was injured by a shot which
struck him in the back. The appellant was charged with attempted
murder.
There was an alternative charge of causing injury by
negligently discharging a firearm in contravention of
s 120(3)(a)
of the
Firearms Control Act 60 of 2000
.
[2]
The State called Bulana as its only
witness. The appellant testified in his own defence and also called
Capt Cloete who had conducted
an inspection and compiled an incident
report. Bulana did not impress the magistrate as a witness. Broadly
speaking, the magistrate
decided the case on the appellant’s
version. On that basis, the magistrate found that the bullet which
struck Bulana had
been fired by the appellant, that the shooting had
not been justified by
s 49(2)
of the
Criminal Procedure Act 51
of 1977
and that the appellant was guilty of attempted murder, with
fault in the form of
dolus eventualis
.
He sentenced the appellant to five years’ imprisonment,
suspended for five years on appropriate conditions.
[3]
With the leave of the magistrate, the
appellant appeals to this court against conviction and sentence.
The
facts in summary
[4]
The following is a summary of the
appellant’s version, which the magistrate accepted. As at
January 2006 the appellant was
stationed at Lamberts Bay. He had more
than 16 years’ service and held the rank of inspector (a rank
later renamed warrant-officer).
On 22 January 2006 he was on duty in
a patrol vehicle with a colleague. He was in uniform. Shortly after
16h00 he received a radio
call from an Insp Neethling of the
neighbouring Graafwater police station to say that a Graafwater
police van was chasing a Toyota
Cressida linked to possible drug
dealing in the area. The driver (Bulana) was refusing to pull over.
Neethling asked whether the
appellant could assist in apprehending
the vehicle.
[5]
The appellant was at the time of this
request travelling from Lamberts Bay in a southerly direction towards
the bridge over the
Sishen/Saldanha railway line. The Toyota, with
the Graafwater van in pursuit, was coming towards the bridge from the
opposite direction.
It was not at this stage a high-speed chase –
the appellant’s information from the Graafwater van was that
they were
travelling at about 90 kph on a tar road. The Toyota
could carry on straight over the bridge towards Lamberts Bay or could
turn left or right onto a dirt service road running parallel to the
railway line. Kruger drew up his van on the Lamberts Bay side
of the
bridge to survey the scene. The Graafwater van radioed him to say
that the Toyota was turning right at the bridge in the
direction of
the township.
[6]
Kruger took after them along the service
road, overtaking the Graafwater van because he knew the area better.
His blue lights were
on. Having hooted and come alongside the Toyota,
he and his colleague made hand signals to the driver that he should
pull over.
He said the Toyota was known to the police in the area but
he did not at that stage recognise the driver as Bulana, though the
latter too was known to him as the police had a profile on him in
connection with drug dealing. Bulana saw the appellant’s
hand
signals but refused to stop, instead continuing in the middle of the
road. The appellant accelerated past him and then slowed
down. The
Toyota tried to overtake on his left and then on his right, in
response to which the appellant again increased his speed.
The Toyota
managed to overtake after bumping the back of the appellant’s
van. The appellant regained control of the van and
continued the
chase. As he tried again to overtake the Toyota, the Toyota
deliberately swerved in front of him, striking the van
and almost
forcing the appellant off the road. The appellant managed to bring
his vehicle back onto the road. The Toyota was travelling
on a dust
road at about 100 kph, the speed limit being 80 kph.
[7]
The appellant concluded that his only
option was to shoot at the rear tyres of the Toyota. The crew of the
trailing Graafwater van
also radioed him to say he should shoot. The
Toyota was weaving left and right across the road. The appellant, who
was a good shot
and achieved high scores in shooting exercises,
continued steering with his left hand while shooting out of the
window with his
right. He did not fire a warning shot because he did
not believe it would be seen or heard by the Toyota’s driver.
He was
about five metres from the Toyota. He aimed low. He fired 12
shots in all. He estimated that this was over a period of eight to
nine minutes while he was chasing the Toyota. The distance from the
bridge to where the chase came to an end was about eight kilometres,
the road was straight and at no stage during the shooting incident
were there pedestrians or oncoming traffic. At least one of
the
appellant’s shots hit the Toyota’s left rear tyre,
despite which Bulana drove on. As he fired the last shot he
saw the
Toyota’s back window shatter. He had not aimed at the back
window, saying that this must have been a ricochet off
the boot.
Shortly afterwards the Toyota turned left towards the township.
Kruger did not want to fire further shoots because of
the danger to
the inhabitants.
[8]
The Toyota eventually stopped because of
the flat tyre. Bulana got out of the Toyota armed with an iron bar
and attacked the appellant.
The appellant and other police officials
subdued him with pepper spray. Bulana’s car was searched but
nothing suspicious
was found in the car or on Bulana’s person.
[9]
Bulana was handcuffed and taken to a
clinic. It was only there that the appellant realised that a bullet
had struck Bulana in the
back. The bullet was not analysed –
Bulana refused to allow it to be removed from his body. No trajectory
analysis was done
to determine where the bullet which struck Bulana
entered the Toyota. At the clinic Bulana asked why he was being
arrested. The
appellant replied that he was being arrested for
reckless or negligent driving and for damaging State property and
putting lives
at risk. A doctor cleaned the wound and applied a
plaster. The appellant then took him to the Lamberts Bay police
station.
[10]
Bulana was charged with various offences
arising from the incident (assault, reckless or negligent driving and
driving without a
license). He apparently admitted guilt on the
charge of driving without a license and was acquitted on the other
charges.
[11]
The appellant did not fire any of his shots
at Bulana and did not intend to hit him. The appellant surmised that
one of his shots
must have ricocheted. The photographs show that the
Toyota’s back window had been smashed, which might have been a
ricochet
(though the appellant had a theory that this particular
ricochet had struck a speaker behind the rear seat and then deflected
through
the back window from the inside).
[12]
The appellant testified that he decided to
fire shots because the suspect (the driver of the Toyota) was using
his vehicle in a
way which was threatening the lives of the police
(including the appellant himself) and of the public and was damaging
State property
(the appellant’s police van). He saw it as his
duty in the circumstances to bring the Toyota to a halt.
[13]
The shooting incident was investigated by
Capt Cloete in accordance with SAPS procedure. He concluded that the
shooting was lawful.
No disciplinary action was taken against the
appellant.
Attempted
murder and legislative provisions
[14]
The elements of the crime of attempted
murder are (i) an attempt (ii) to kill another person unlawfully
(
actus reus
)
(iii) with the intent to kill and with an appreciation that the
killing will be unlawful (
mens rea
).
The state of mind required for attempted murder is the same as for
murder. The difference lies in the
actus
reus
- in the case of murder, the act
allegedly perpetrated by the accused must have actually resulted in
death. As is well known, intent
to murder includes a state of mind in
which the accused foresaw the possibility of death and was reckless
as to whether death ensued,
ie
dolus
eventualis
(see
S
v Combrink
2012 (1) SACR 93
(SCA) para
17). The same state of mind suffices for attempt to murder (
S
v Huebsch
1953 (2) SA 561
(A) at
567D-568A;
S v
Nango
1990 (2) SACR 450
(A) at 457b-f; Snyman
Criminal
Law
6
th
Ed at 294).
[15]
Ordinarily it is unlawful to kill another
person. In certain circumstances the killing might be justified and
thus lawful. Our common
law recognises certain grounds of
justification, for example private defence (often styled
self-defence). Legislation may also
provide statutory grounds of
justification.
[16]
The statutory ground of justification of
relevance in this case is
s 49
of the
Criminal Procedure Act,
which
sets out the circumstances in which force may lawfully be used
in effecting an arrest. In order to fall within
s 49
, the arrest
must itself be lawful. Since the appellant and his colleagues did not
have a warrant, they could only arrest Bulana
if one or other of the
circumstances set out in
s 40(1)
of the
Criminal Procedure Act
was
satisfied. Of potential relevance are the following grounds for
warrantless arrest in
s 40(1):
that Bulana was committing or
attempting to commit an offence in the appellant’s presence
(para (a)); that Bulana was reasonably
suspected of committing or
having committed a drug offence (para (h)); that Bulana was wilfully
obstructing the appellant and other
officers in the execution of
their duties (para (i)).
[17]
Section 49
was amended with effect from 18
July 2003 (by
s 7
of the
Judicial Matters Second Amendment Act
122 of 1998
) and then with effect from 25 September 2012 (by
s 1
of the Criminal Procedure Amendment Act 9 of 2012). In its original
form the section read thus:
‘
Use
of force in effecting arrest.
(1) If any person
authorized under this Act to arrest or to assist in arresting
another, attempts to arrest such person and such
person –
(a) resists the
attempt and cannot be arrested without the use of force; or
(b) flees when it is
clear that an attempt to arrest him is being made, or resists such
attempt and flees,
the person so
authorized may, in order to effect the arrest, use such force as may
in the circumstances be reasonably necessary
to overcome the
resistance or to prevent the person concerned from fleeing.
(2) Where the person
concerned is to be arrested for an offence referred to in Schedule 1
or is to be arrested on the ground that
he is reasonably suspected of
having committed such an offence, and the person authorized under
this Act to arrest or to assist
in arresting him cannot arrest him or
prevent him from fleeing by other means than by killing him, the
killing shall be deemed
to be justifiable homicide.’
[18]
In this form, s 49(1) dealt with
non-deadly force while s 49(2) dealt with deadly force. Section
49(1) in that form was
considered in
Govender
v Minister of Safety and Security
2001
(4) SA 273
(SCA). The court held that, in the light of constitutional
values, the traditional view of reasonableness (which assessed the
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 suspect to the safety and security of the
police officers,
other individuals and society as a whole. In so
doing, one should give full weight to the fact that the suspect is,
for example,
young or unarmed or of slight build or could be brought
to justice in some other way. On this test, the use of force
necessary
for the objects stated in s 49(1) may nevertheless be
unreasonable (para 21). The court held, further, that where a suspect
is fleeing from arrest, the ‘reasonably necessary’ test
will generally speaking exclude the use of a firearm unless
the
arrestor has reasonable grounds for believing that the suspect poses
an immediate threat of serious bodily harm to the arrestor
or members
of the public or has committed a crime involving the infliction or
threatened infliction of serious bodily harm (para
24).
[19]
This interpretation of the original s 49(1)
was endorsed by the Constitutional Court in para 39 of
Ex
parte Minister of Safety and Security & Others: In re Walters &
Another
[2002] ZACC 6
;
2002 (4) SA 613
(CC). However,
the Constitutional Court held that s 49(2), which dealt with
deadly force, was unconstitutional. The premise
of this decision
appears to have been that whereas the ‘reasonably necessary’
criterion (as interpreted in
Govender
)
saved s 49(1) from constitutional invalidity, there was no such
criterion contained in s 49(2). The latter sub-section
instead
permitted deadly force in relation to all Schedule 1 offences where
the suspect could not be arrested or prevented from
fleeing without
using deadly force. The use of Schedule 1 as the governing criterion
failed the fundamental objective of achieving
proportionality, since
the Schedule listed a ‘widely diverging rag-bag of’
offences, ranging from really serious crimes
to relatively petty
offences and included offences that did not constitute any kind of
physical threat, let alone violence (para
41; see also the
interpretation of
Walters
in
Minister of Safety and Security v Folo &
Others
[2007] 1 All SA 149
(SCA) paras
8-10).
[20]
Following the Constitutional Court judgment
in
Walters
,
the amendment of s 49 (by way of s 7 of Act 122 of 1998)
was brought into force with effect from 18 July 2003. It is
this
amended form which is applicable in the present case. The new s 49(1)
now contained two definitions applicable to the
new s 49(2),
which dealt with non-deadly force and, in terms of a proviso,
deadly force. The new section read as follows:
‘
(1)
For purposes of this section –
(a)“arrestor”
means any person authorised under this Act to arrest or to assist in
arresting a “suspect”;
and
(b)“suspect”
means any person in respect of whom an arrestor has or had a
reasonable suspicion that such person is committing
or has committed
an offence.
(2) If an 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 to
prevent the suspect from fleeing: Provided that the arrestor is
justified in terms of the section
in using deadly force that is
intended or is likely to cause death or grievous bodily harm to a
suspect, only if he or she believes
on reasonable grounds –
(a) that the force
is immediately necessary for the purposes of protecting the arrestor,
any person lawfully assisting the arrestor
or any other person from
imminent or future death or grievous bodily harm;
(b) that there is a
substantial risk that the suspect will cause imminent or future death
or grievous bodily harm if the arrest
is delayed; or
(c) that the offence
for which the arrest is sought is in progress and is of a forcible
and serious nature and involves the use
of life-threatening violence
or a strong likelihood that it will cause grievous bodily harm.’
[21]
Section 49 was again amended with effect
from 25 September 2012 by s 1 of Act 9 of 2012. There is only
one aspect of the current
section I need mention. The phrase ‘deadly
force’ is now defined in s 49(1) as meaning ‘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’.
Section
49(2) has been consequentially amended by deleting the words
which previously appeared after ‘deadly force’, namely
‘that is intended or is likely to cause death or grievous
bodily harm to a suspect’.
[22]
Prior to the 2003 amendment, the
distinction drawn in s 49 was between instances of force
resulting in death and of force not
resulting in death. The amended
section (this applies both to the 2003 amendment and the 2012
amendment), on the other hand, distinguishes
between ‘deadly
force’ and other force. It is clear that in the current version
of s 49 ‘deadly force’
is not limited to cases where
death actually ensued. I think that this is also the proper
interpretation of s 49 in its intermediate
form (the one
applicable here). The 2012 amendment simply places this beyond doubt.
Such an interpretation is consistent with the
legislative object of
ensuring that force which is likely to cause serious bodily harm or
death is not resorted to save in the
special circumstances prescribed
in the proviso to s 49(2). The justification for force which is
likely to cause serious bodily
harm or death should not depend on
whether, fortuitously, the force did or did not result in death. The
focus is on the character
of the force, not its actual result.
[23]
It follows that even in cases where the
suspect was not killed, the accused, if charged with attempted murder
or assault, will need
to establish the special justification required
for the use of deadly force if the force he applied was intended or
likely to cause
death or grievous bodily harm.
[24]
Force will be deadly if it was ‘intended’
or ‘likely’ to cause death or grievous bodily harm to a
suspect.
Consistent with our law relating to intention in the context
of
dolus
,
the word ‘intended’ should be interpreted as including a
state of mind in which the arrestor foresees that the force
he is
applying may cause the death of or grievous bodily harm to the
suspect and is reckless as to whether or not death or grievous
bodily
harm ensues. The word ‘likely’ means that death or
grievous bodily harm is probable. I do not find it necessary
in this
case to decide whether ‘likely’ means ‘more
probable than not’; the word ‘likely’ often
bears
this meaning though may also mean ‘reasonably possible’
(see, eg,
Bristol Laboratories Inc v
Ciba Ltd
1960 (1) SA 864
(A) at
870F-G).
Onus
in regard to justification
[25]
Where an arrestor uses force, the State may
bring a criminal charge against the arrestor if it considers that the
force was not
justified. The charge in such cases might be murder,
attempted murder or assault. It was authoritatively held, in relation
to s 49(2)
in its original form and its statutory predecessors,
that where deadly force was used, the onus rested on the accused to
prove
on a balance of probability that the force was justified by the
section (see
R v Britz
1949
(3) SA 293
at 303-304;
S v Swanepoel
1985 (1) SA 576
(A) at 586H-588F;
S
v Barnard
1986 (3) SA 1
(A) at 5H-I).
This is, of course, a departure from the normal position that the
State must prove all the elements of the crime
beyond reasonable
doubt, including the unlawfulness of the act. For example, where an
accused person claims to have acted in private
defence, this ground
of justification must be negatived by the State beyond reasonable
doubt. In the cases just mentioned, the
placing of the onus on the
accused in relation to force used to effect an arrest was considered
to be warranted by the fact that
s 49(2) and its predecessors
authorised the use of deadly force even where such force might be
unreasonable. Protection for
the unreasonable use of deadly force
might too easily be obtained if the onus rested on the State to prove
beyond reasonable doubt
that deadly force was not justified. The
lawmaker must thus have intended to place the onus on the accused to
justify his conduct
on a balance of probability.
[26]
Whether the same applied to non-deadly
force falling under the old s 49(1) was not, as far as I am
aware, the subject of any
reported judgment in the criminal context.
In civil claims for damages it has always been recognised that the
burden rests on the
arrestor (see the minority judgment of Botha JA
in
Macu v Du Toit
en
ʼ
n Ander
1983
(4) SA 629
(A) at 647A-E, which is not inconsistent with the majority
judgment on this point) but the same would not necessarily apply in
criminal cases. The justification for placing the onus on the accused
in respect of the old s 49(2) might be regarded as absent
in the
case of the old s 49(1), particularly as that sub-section was
interpreted in
Govender
.
And subsequent to the amendment of s 49 in 2003 to address the
constitutional flaws identified in
Walters
,
it might be said that the justification for placing the onus on the
accused has also fallen away in respect of deadly force (see
Burchell
Principles of Criminal Law
3
rd
Ed at 318—320, who argues that the onus should be on the
State).
[27]
On the other hand, the lawmaker can be
taken to have been aware, when it amended s 49, of the
interpretation placed on the
section insofar as onus is concerned. If
a change in regard to onus was intended, one might have expected this
to be dealt with
explicitly. Furthermore, the balancing of
constitutional interests is not necessarily inconsistent with the
continued placing of
the onus on the accused when it comes to using
force to effect an arrest. As against the fair trial rights of
accused persons (s 35)
are fundamental rights such as life
(s 11), human dignity (s 10), freedom and security of the
person (s 12) and
freedom of movement (s21) and the
Constitution’s injunction that public administration must be
governed by the democratic
values and principles enshrined in the
Constitution, including high standards of professional ethics,
accountability and transparency
(s 195). Furthermore, and at
least in relation to deadly force, the placing of the onus on the
accused appears to be fortified
by the amended wording: ‘
Provided
that
the arrestor is justified…
in using deadly force…,
only if
he or she believes on reasonable grounds…’ (my
emphasis).
[28]
The nature of the onus that rested on an
accused in terms of the old s 49 depended on whether the force
had or had not resulted
in death. Where the charge was one of murder,
the State needed to prove beyond reasonable doubt that the deceased’s
death
was caused by force applied by the accused. Once that was
proved, the accused bore the onus to prove on a balance of
probability
that the killing was justified in accordance with the
criteria laid down in the old s 49(2).
[29]
On the assumption that there has been no
change in the incidence of onus, the nature of the onus resting on an
accused in terms
of s 49 as amended in 2003 depends on whether
or not the force he used constituted ‘deadly force’. As I
have said,
the focus is on the character of the force rather than its
actual result. If an accused is to bear the special onus placed on
him
by the proviso to s 49(2), it is for the State to prove
beyond reasonable doubt that the force which the arrestor used was
‘deadly force’, ie force intended or likely to cause
death or grievous bodily harm to a suspect. Unless the State proves
this beyond reasonable doubt, the accused can justify the force he
applied with reference to the general criteria set out in the
main
part of s 49(2).
[30]
Accordingly, and in relation to the
actus
reus
elements of the charge against the
appellant, it was for the State to prove beyond reasonable doubt that
the appellant shot Bulana.
If the State proved this, and if the State
additionally proved beyond reasonable doubt that the force used by
the appellant constituted
‘deadly force’, it was for the
appellant to prove on a balance of probability that the shooting was
justified as deadly
force by the proviso to s 49(2). If the
State failed to prove beyond reasonable doubt that the force used by
the appellant
constituted ‘deadly force’, it was for the
appellant to prove on a balance of probability that the shooting was
justified
in accordance with the criteria set out in the main part of
s 49(2).
Mens
rea
and the onus in that regard
[31]
Thus far I have been considering onus in
relation to justification, ie the
actus
reus
. However, the
mens
rea
element must also be considered.
The form of fault required on a charge of murder or attempted murder
is
dolus
.
As mentioned earlier, the state of mind so styled comprises two
elements: (i) an intention to kill (I shall call this factual
intent); and (ii) a simultaneous appreciation that the killing is
unlawful (knowledge of unlawfulness). The second of these components
was authoritatively held in
S v De Blom
1977 (3) SA 513
(A) to require not only
knowledge of the facts from which the conclusion of unlawfulness
flows but also knowledge of the relevant
legal prescript (at
528H-532D; and see Burchell
op cit
at 502-507). Ordinarily the onus rests on the State to prove both
factual intent and knowledge of unlawfulness beyond reasonable
doubt
(
De Blom
at
532E-H).
[32]
In many cases knowledge of unlawfulness is
uncontentious because there is no suggestion of a justification for
the killing and because
persons of sound mind can be taken to know
that it is unlawful to kill someone in the absence of legal
justification. In such cases,
if
mens
rea
is in issue, the focus would
usually be on factual intent. Factual intent is not limited to the
case where the very result which
the accused was seeking to achieve
is the death of the victim. It also encompasses a state of mind in
which the accused foresees
that the death of another may result and
is reckless as to whether or not death ensues (
dolus
eventualis
).
[33]
Where, however, an accused raises a ground
of justification or claims that at the time of the relevant act he
believed his conduct
was justified in law, it becomes necessary to
determine not only whether the killing was justified (part of the
actus reus
inquiry) but also whether – even if the killing was not
objectively justified – the accused at the relevant time had
an
appreciation of the unlawfulness of the killing (part of the
mens
rea
inquiry). As I have said, it is
ordinarily for the State to prove knowledge of unlawfulness where
this is in issue.
[34]
Thus, if an accused person claims to have
been acting in private defence, the court – even if finds that
the accused’s
defensive act was an unreasonable response
– will need to decide whether the State has proved beyond
reasonable doubt
that the accused knew that his response was unlawful
(see
S v Motleleni
1976
(1) SA 403
(A) at 407C-D);
S v Dougherty
2003 (2) SACR 36
(W) paras 28-40).
There is a correlation here between the onus of proof in regard to
the
actus reus
and
mens rea
:
the State bears the onus of negativing beyond reasonable doubt the
justification ground of private defence and of establishing
beyond
reasonable doubt the accused’s knowledge that his act was not
justified on grounds of private defence. If knowledge
of unlawfulness
is not proved beyond reasonable doubt the accused could nevertheless,
in the case of killing, be convicted on culpable
homicide if a
reasonable person in his position would have realised that the
killing was not justified (
S v Ntuli
1975 (1) SA 429
(A) at 436F-437D
;
S v De Oliveira
1993 (2) SACR 59
(A) at
63g-64a). This position, pre-dating
De
Blom
, was also held to apply to a
genuine but negligent error in judgment by a police official in
using lethal force to effect
an arrest (
R
v Koning
1953 (3) SA 220
(T) at
231G-233G).
[35]
In the case of force used to effect an
arrest, however, the onus to establish the justification under s 49
rests on the accused
on a balance of probability. The courts have
recognised it would be logically inconsistent with this position to
place on the State
the burden of proving beyond reasonable doubt that
the accused knew or should have known that the force used was not
justified
by s 49. Accordingly, and as with the
actus
reus
, there is a bifurcated onus in
regard to
mens rea
.
In the case of murder, for example, just as the State must prove
beyond reasonable doubt that the accused killed the deceased,
so must
the State prove beyond reasonable doubt that the accused had the
factual intent to do so. But just as the accused has to
prove on a
balance of probability that the killing was justified under s 49
(if he persists with justification), so he must
prove on a
balance of probability that he lacked knowledge of unlawfulness (see
Barnard supra
at
8E-9C).
[36]
Although the passage from
Barnard
just cited was framed with reference to
fault in the form of negligence, Van Heerden JA was dealing in
general with the element
of fault in so far as it bore on the
elements of s 49(2). The same untenable situation as the one he
postulated in his hypothetical
example at 8G-I would arise if the
State bore the onus of proving that the accused knew that his conduct
was not justified by s 49.
The State could only prove beyond
reasonable doubt that an accused person knew his conduct was not
justified by s 49 by proving
inter alia that the conduct was as
a fact not justified by s 49. This is confirmed by the Appellate
Division’s judgment
in
S v De Ru
[1995] ZASCA 139
where EM Grosskopf JA
said the following at pp 10-11 (I translate from the Afrikaans):
‘
It
is trite law that the onus rests on the accused to prove the ground
of justification set out in s 49(2) (see …).
It was
submitted on behalf of the appellant, however, that s 49(2) has
to do with unlawfulness – this does not detract
from the
State’s burden of proving the other elements of the crime and,
in particular,
mens
rea
.
This argument is in my view an over-simplification. It is naturally
so, in principle, that s 49(2) only comes into play where
facts
have been proved which would, in the absence of the sub-section, show
that a crime was committed. Where the charge is one
of murder, the
State would thus have to prove that the accused intentionally killed
the deceased. To that extent, at least, the
State must also prove
mens
rea
.
On behalf of the appellant, however, it was argued that the State
must go further – the State must prove knowledge of
unlawfulness.
The answer to this argument, in my opinion, is to be
found in the
Barnard
case
supra at 8E to 9C. In the present case the appellant’s actions
could only be regarded as lawful as a result of the provisions
of
s 49(2). No other ground of justification is conceivable in the
light of the facts. If one assumes that absence of knowledge
of
unlawfulness can be raised in regard to the requirements of s 49(2),
it follows almost as a matter of course that the accused
bears the
onus. Reliance on the absence of knowledge of unlawfulness would in
such circumstances involve indirectly reliance on
the sub-section. An
accused who cannot show that he is in fact protected by s 49(2)
would hardly be entitled to a discharge
merely because there is a
reasonable doubt as to whether or not he was aware that he did not
enjoy such protection.’
[1]
[37]
Although the state of mind comprehended by
the phrase
dolus eventualis
is
usually employed with reference to factual intent, it may also be
relevant to knowledge of unlawfulness. In other words, a person
may
foresee that his conduct will be unlawful and be reckless as to
whether or not it is unlawful (
S v
Hlomza
1987 (1) SA 25
(A) at 31H-32F;
Snyman
op cit
p 204).
There may, for example, be direct factual intent (for example, where
a person deliberately fires a shot into the head
of an attacker
intending to kill him) but reckless knowledge of unlawfulness (where
the person firing the shot foresees that deadly
force may not be
justifiable self-defence but is reckless as to whether or not his
conduct is lawful).
The
conduct of the trial
[38]
Before I proceed to a consideration of the
issues indicated by the above analysis, I should observe that the
prosecutor and accused’s
legal representative did not, in their
leading and cross-examination of witnesses, focus with any precision
on the requirements
of
ss 40
and
49
of the
Criminal Procedure
Act. As
far as I can see,
s 49
was not even mentioned during the
evidence though I accept that the legal representatives had it in
mind. There also does not seem
to have been an appreciation, either
in the evidence or submissions to the magistrate, of the distinction
between justification
as part of the
actus
reus
inquiry and a belief that conduct
is justified as part of the
mens rea
inquiry or as to the incidence of onus.
Did
the appellant shoot Bulana?
[39]
The State was required to prove beyond
reasonable doubt that the bullet which struck Bulana was fired by the
appellant. In the court
a quo
the
appellant’s counsel argued that there was no proof to this
effect. This argument was rightly not raised on appeal. There
was no
suggestion that any police official other than the appellant fired
any shots during the car chase or afterwards. The appellant
accepted
that any of the shots fired by him could notionally have ricocheted
and struck Bulana. The circumstantial evidence thus
established
beyond reasonable doubt that Bulana was struck by one of the bullets
fired by the appellant.
Was
the shooting justified by
s 49?
[40]
A threshold enquiry, in relation to
justification under
s 49
, is whether Bulana’s arrest was
lawful. Since there was no warrant, a lawful arrest required one of
the grounds set out in
s 40(1)
to be present. I have mentioned
the grounds that might be relevant in the present case. Where a
suspect has committed an offence
in the presence of officer A or
where officer A has a reasonable suspicion that the suspect has
committed a relevant offence, officer
B may lawfully assist A in
effecting the arrest even though the offence was not committed in B’s
presence and even though
B himself has no grounds for suspicion.
[41]
Part of the onus which rested on the
appellant in the present case was to show that he used force in the
course of a lawful arrest.
Insofar as the lawfulness of Bulana’s
arrest depended on things which happened in the presence of, or which
were reasonably
suspected by, Neethling or other officers, the
appellant needed to adduce evidence of those matters. Since no such
evidence was
led (neither side called Neethling or the officials from
the Graafwater van), the appellant could not rely on those matters.
[42]
On the appellant’s version, Bulana
bumped into the police van on several occasions. This arguably
constituted the commission
of an offence in the appellant’s
presence. On the other hand, it may be said that the bumping of the
vehicles occurred in
the course of the chase in which the appellant
was attempting to bring Bulana’s vehicle to a halt. That was
arguably part
of the process of an arrest and for which some prior
justification was needed. Unless the car chase was part of a lawful
arrest,
it might be said that Bulana was entitled to resist being
pulled off the road. (Bulana’s version was that he had been
stopped
several times that day by the Graafwater policemen, that they
had abused him and threatened to shoot him and that he was scared,
which is why he later refused to stop. There was no gainsaying
evidence from the Graafwater police officials though the magistrate
was sceptical of Bulana’s version.)
[43]
The appellant’s evidence was that,
prior to the firing of any shots, he drove alongside the Toyota and
signalled to the driver
to pull over. The appellant was not a member
of the public but a uniformed police officer in a police van. In
terms of
s 3I(b)
of the
National Road Traffic Act 93 of 1996
any
traffic officer (this includes a SAPS member) may require a driver to
stop his vehicle. In terms of
s 89(1)
, non-compliance is an
offence. Furthermore, in terms of
s 11(2)(a)
of the
Drugs and
Drug Trafficking Act 140 of 1992
a police official may, in the
exercise of his powers under that section, require any vehicle to be
stopped. Again, non-compliance
is an offence – see
s 16.
[44]
It may therefore be said that Bulana, by
refusing to pull over, committed one or both of these offences in the
appellant’s
presence. I am somewhat dubious about this and the
appellant did not himself so contend . As to the
National Road
Traffic Act, the
power may only be exercised for purposes of that
Act. At the time the appellant signalled to Bulana to pull over, he
was not intending
to exercise powers under the
National Road Traffic
Act but
was assisting in the arrest of a person allegedly suspected
of drug dealing. As to the
Drugs and Drug Trafficking Act, the
power
to require a vehicle to be stopped may only be exercised for the
purposes set out in
s 11(1).
Those purposes require that a
police official should have reasonable grounds for suspecting various
things. The appellant himself
did not have those grounds. In order to
show that the offence described in
s 11(2)(a)
was committed in
his presence and that an arrest on this basis was thus lawful, the
appellant had to show on a balance of probability
that Neethling or
some other police official whom the appellant was assisting had
reasonable grounds for suspecting one or other
of the matters set out
in
s 11(1).
[45]
However, I shall assume in the appellant’s
favour that he established on a balance of probability that he was
entitled to
arrest Bulana, or to assist in the latter’s arrest,
without a warrant. On that assumption, the next question is whether
the
State proved beyond reasonable doubt that the force used by the
appellant was deadly force, this being relevant to the nature of
the
resultant onus resting on the accused in terms of
s 49(2).
The
State could do so either by proving that the force was ‘intended’
to cause death or grievous bodily harm (regardless
of whether or not
the force was ‘likely’ to have that effect) or that it
was ‘likely’ to do so (even though
the accused did not
‘intend’ the force to have that effect).
[46]
In my view, the State proved beyond
reasonable doubt that the appellant used force that was ‘intended’
to cause death
or grievous bodily harm to Bulana. I do not say that
death or grievous bodily harm was more likely than not or even that
it was
‘likely’. And I certainly do not say that death or
grievous bodily harm was the result which the appellant wished to
bring about. However, death or grievous bodily harm was certainly
more than a remote possibility. The appellant fired 12 shots
at the
Toyota over a period of eight to nine minutes. He conceded in his
evidence that he was aware that any bullet could ricochet
and cause
harm to the driver (see also
R v Hedley
1958 (1) SA 362
(N) at 363G-H). The
risk of ricochets and harm to innocent bystanders is one of the
reasons he did not fire shots after Bulana
turned into the township
area. The appellant was driving on a gravel road at about 100 kph,
steering with one hand and firing
with the other at a target which
was also moving at 100 kph. The last training the appellant had
in shooting from a moving
vehicle was in 1995, and in that exercise
the target was stationery and the shooter a passenger. Most of his
practice was at the
shooting range with static targets. Although the
appellant was a good shot, it was quite possible, even though he
aimed low, that
a shot might go astray. Indeed, one does not know in
the present case that the shot which struck Bulana was a ricochet as
distinct
from a misdirected shot.
[47]
Furthermore, the appellant was deliberately
shooting at the rear tyres of the Toyota. Even if the appellant did
not foresee the
possibility that a shot might hit the driver, he must
have foreseen the possibility that, if he succeeded in hitting the
tyres,
Bulana would lose control of the vehicle and suffer serious
injury or even die. By continuing to shoot over eight to nine
minutes,
the appellant must have reconciled himself to these possible
outcomes.
[48]
On this basis, the appellant bore the onus
of proving on a balance of probability that he had reasonable grounds
for believing one
or more of the matters set out in paras (a) to (c)
of the proviso. He did not succeed in doing so. As to (a), I am
prepared to
accept that Bulana, in an endeavour to avoid arrest,
drove his vehicle in a manner which, as events actually unfolded,
posed a
risk of imminent grievous bodily harm to the appellant and
his colleague. However, the subsequent use of deadly force (the
firing
of the shots) was not ‘necessary’ for purposes of
protecting the appellant or his colleague. The appellant could simply
have refrained from trying to force Bulana to pull over and instead
continue to follow him. Indeed, the appellant’s evidence
is
that he only started firing shots after the last occasion on which
Bulana had bumped the police van and the appellant had resumed
his
following position behind the Toyota. The appellant did not fire the
shots in order to stop Bulana crashing into the police
van but
because he had been unable to force Bulana off the road with his van.
[49]
As to (b), the appellant had no grounds for
believing that there was a substantial risk that Bulana would cause
imminent future
death or grievous bodily harm if his arrest was
delayed. All the appellant knew was that Bulana and the vehicle were
suspected
of involvement in drug dealing.
[50]
As to (c), if one assumes (though there is
no evidence to this effect) that Bulana was continuing to commit some
or other drug offence
while driving the Toyota and that such offence
was thus ‘in progress’, the drug offence was not of a
forcible and serious
nature and did not involve the use of
life-threatening violence or strong likelihood of grievous bodily
harm. The same is true
if one assumes that Bulana was continuing to
commit an offence of failing to stop and that such offence was thus
‘in progress’.
[51]
Thus far I have assessed the justification
defence on the basis that the State proved beyond reasonable doubt
that the appellant
used deadly force. If I am wrong in finding that
the appellant used deadly force, I consider that the appellant
nevertheless failed
to establish on a balance of probability that the
force he used was justified by the main part of
s 49(2)
, ie that
the force was reasonably necessary and proportional in the
circumstances to prevent Bulana from fleeing. In the first
place, it
was not shown that force was reasonably necessary to apprehend Bulana
in his vehicle. The appellant and his colleagues
in the other van
could have continued to follow Bulana. If it really appeared that
Bulana would outrun them or be able to continue
driving until they
ran out of petrol, they could summons other assistance to set up a
roadblock. It was at any rate not shown that
this was not possible.
[52]
But even if firing shots at the Toyota was
the only way in which to apprehend Bulana in the vehicle, the force
was still not proportional
in the circumstances. The difficulty which
the appellant has in discharging the burden of proof in this regard
is that one cannot
assess proportionality without knowing precisely
what it is that Bulana was alleged to have done. There was no
evidence on that
score. The firing of 12 shots at the Toyota was not
proportional to a general suspicion that Bulana was using the vehicle
in the
course of drug dealing. Bulana and his address were known to
the police as was the Toyota. If the police reasonably suspected that
Bulana was actually carrying drugs in the vehicle, it is true that he
may have been able to dispose of the drugs unless the police
caught
him red-handed. Even so, I do not consider the firing of 12 shots,
though aimed at the tyres of the Toyota, was proportional
to that
risk.
[53]
I thus consider that the magistrate
correctly found that the firing of the shots was not justified.
Mens
rea
–
factual
intent
[54]
The State was required to prove beyond
reasonable doubt that the appellant had factual intent. I have
already found that the State
proved beyond reasonable doubt that the
appellant used force that was ‘intended’ to cause death
or grievous bodily
harm. For purposes of attempted murder, however,
the question specifically is whether it was proved beyond reasonable
doubt that
the appellant foresaw the possibility that Bulana might be
killed (not merely suffer grievous bodily harm) and was reckless as
to whether or not that occurred. I am satisfied that the State did
prove this. Both death and grievous bodily harm were reasonably
possible outcomes, even if neither was more probable than not and
even though death would have been less likely than grievous bodily
harm. The appellant must have foreseen both possibilities and
reconciled himself to these possible outcomes in his determination
to
apprehend Bulana.
Mens
rea
–
knowledge of
unlawfulness
[55]
This being so, the remaining question is
whether the appellant proved on a balance of probability that he
believed, albeit incorrectly,
that his conduct was justified in terms
of
s 49.
If he proved this, I have no doubt that he was
negligent (in that a reasonable police officer would have realised
that the firing
of the 12 shots was not justified) but negligence in
that form would not suffice either for attempted murder or assault
(though
if Bulana had died a conviction for culpable homicide would
have been competent).
[56]
The question of knowledge of unlawfulness
is the part of this appeal which I have found the most difficult, in
no small measure
because it was not the focus of proper attention in
the evidence or argument before the trial court. Perhaps
unsurprisingly, therefore,
the matter is not addressed in the
magistrate’s judgment.
[57]
At the beginning of his legal analysis, the
magistrate said that a police official needed to have reasonable
grounds to shoot, that
this question was assessed objectively, and
that it was no excuse, in the case of an unlawful arrest, for the
police officer to
say that he acted in good faith. After finding that
there were no lawful grounds for warrantless arrest and that the
force was
in any event unreasonable from an objective perspective,
the magistrate proceeded to consider what I have styled factual
intent,
concluding that the appellant foresaw the possibility that
Bulana might be struck by a stray bullet and was reckless as to
whether
or not death ensued. He ended his judgment by saying that it
was not sufficient that the appellant acted in good faith.
[58]
The magistrate erred, in my view, in
finding that it was irrelevant that the appellant acted in good
faith, if by that he meant
that it was irrelevant whether or not the
appellant genuinely believed he was acting lawfully. It is correct
that good faith is
not relevant to the justification analysis (except
to the limited extent, of course, that an arrestor must, in addition
to the
other requirements of
s 49
read with
s 40(1)
,
genuinely hold the beliefs relevant to those sections). But in regard
to
mens rea
,
a genuine belief by the arrestor that he is acting lawfully precludes
a finding that he acted with
dolus
.
[59]
The problem is that the magistrate made no
specific finding on the appellant’s knowledge of unlawfulness
and it is not apparent
from his judgment that he appreciated that it
was for the appellant to discharge the onus of proving on a balance
of probability
that he genuinely believed he was acting within the
bounds of
s 49.
[60]
The appellant testified that he regarded
his actions as lawful. Apart from his evidence in general regarding
the incident, he said
at one point in his evidence that he had fired
shots only because he had seen it as his duty to protect life and
property. Later
in his evidence he said that it was his honest
opinion that he had acted lawfully and honestly. The tenor of his
evidence as a
whole was that his conduct had been justified.
[61]
I have already concluded that the
magistrate was right to find that, objectively speaking, the
appellant’s conduct was not
justified under
s 49.
The
prosecutor’s cross-examination of the appellant was not
directed at showing that the appellant did not honestly hold
the
opinion he did but rather that, objectively viewed, the appellant was
not justified in shooting. Part of the cross-examination
focused on
the fact that the appellant himself had no knowledge as to what
offence if any Bulana had supposedly committed. The
options that were
open to him apart from shooting were explored as were his knowledge
of the dangers of ricochets.
[62]
The prosecutor may well have failed to
appreciate that the accused would be entitled to an acquittal on the
charge of attempted
murder if he proved on a balance of probability
that he honestly believed his conduct was justified, even though his
belief was
wrong. Whatever the explanation, it was never put to the
appellant that he could not genuinely have had the belief that his
conduct
was justified. The appellant’s knowledge regarding
s 49
and the training if any he had received in that regard were
not canvassed in the evidence. One simply does not know what the
appellant
would have said if these matters had been tested in
cross-examination.
[63]
The magistrate found as a fact that the
appellant foresaw that by firing the shots Bulana might be killed or
seriously injured.
The appellant was a warrant officer with more than
16 years’ experience. The amended provisions of
s 49
had
been in force for about two and a half years by the time of the
shooting incident. I think I may take judicial notice of the
fact
that the judgments of the Supreme Court of Appeal and the
Constitutional Court in
Govender
and
Walters
and
the amendment of
s 49
were at the time matters of considerable
public interest and debate. I would be surprised if police officers
entrusted with firearms
did not receive instruction on the amendments
to the law relating to the use of force in effecting arrests. I would
be both surprised
and disappointed if an experienced police officer
in 2006 thought he was justified in firing 12 shots in the
circumstances of the
present case (cf
S
v Reabow
2007 (2) SACR 292
(E) paras
20-24).
[64]
On the other hand, the shooting incident
was investigated by Capt Cloete. His report recorded the appellant’s
contemporaneous
assertion of his belief that he had acted lawfully.
Capt Cloete concurred in that view and no disciplinary action was
taken against
the appellant. While that carries little weight in the
objective analysis, it gives one pause for thought when one is asked
summarily
to reject the appellant’s evidence that he believed
he acted lawfully.
[65]
It is an important principle of our
adversarial system that a party may not ordinarily ask a court to
reject a witness’s evidence
as false unless the witness has had
the opportunity of defending himself against the imputation. This
applies as much to the prosecution
in criminal cases as to any other
party. In the present case the genuineness of the appellant’s
belief was not challenged.
What is more, because the question of
knowledge of unlawfulness did not receive proper attention, we do not
have a clear factual
finding thereon by the magistrate, though the
indications are that he accepted the appellant’s
bona
fides
.
[66]
I have thus come to the conclusion that the
appellant, in the absence of challenge, discharged the onus of
establishing that he
genuinely thought he was acting lawfully. (If,
contrary to my assumption, the onus rested on the State to prove that
the appellant
did not genuinely believe his actions to be justified,
this would be an
a fortiori
conclusion.)
The conviction for attempted murder must thus be set aside.
Negligent
discharge of a firearm
[67]
As will be apparent, I consider that the
appellant acted negligently in firing as he did. The question is,
however, whether he committed
the offence of which he was
alternatively charged, namely s 120(3)(a) of the
Firearms
Control Act. Section
96(1) states that no provision of the Act,
other than certain provisions not here relevant, applies to ‘an
Official Institution’.
The South African Police Service as
contemplated in
s 5
of the
South African Police Service Act 68
of 1995
is an ‘Official Institution’ (see
s 95(a)(ii)
of the
Firearms Control Act). Section
5 of the
South African Police
Service Act states
that SAPS consists (I summarise) of its duly
appointed members. The appellant was one such member.
[68]
Since the heads of argument did not deal
with the charge under the
Firearms Control Act, we
notified counsel
in advance of the hearing that we wished to hear argument on the
proper interpretation of the exemption in
s 96(1)
of the
Firearms Control Act. The
appellant’s counsel submitted,
unsurprisingly, that the exemption benefited his client. Somewhat
surprisingly, counsel for
the State conceded that the exemption
excluded a conviction on the alternative count. We have thus not had
the benefit of full
argument for and against an interpretation which
would have this result.
[69]
The only basis on which
s 96(1)
might
be held not to be applicable in the present case is if the exemption
operates in favour of SAPS conceived of as an institution
rather than
in favour of the individual members who collectively comprise SAPS.
However, we do not think that this interpretation
is correct. SAPS is
not a corporate body. It is a service made up of duly appointed
police officers. If the provisions of the Act
did apply to SAPS (ie
if there was no exemption), it is the individual members rather than
SAPS as an institution which would in
general be implicated by its
provisions and need to comply with them. For example, when s 3(1)
says that no person may possess
a firearm unless he or she holds a
license, it is the individual police officer rather than SAPS as an
institution which would
need to comply. Similarly, a competency
certificate in terms of Chapter 5 of the
Firearms Control Act would
be concerned with the individual SAPS member, not the institution as
such.
Section 84
provides that no person may carry a firearm in a
public place unless it is carried in a particular way. This is
concerned with
the conduct of individual people, not an institution.
The exemption in
s 96(1)
must have been intended to have the
effect that the individual members of SAPS would not be bound by
these and many similar provisions
in the Act.
[70]
It is true that the concept of an
‘employee’ in relation to SAPS is introduced by the
definition thereof in s 95(1)(b)
read with s 98. This is
because although s 96(1) exempts the individual SAPS members
inter alia from compliance with
the general provisions of the Act
relating to licensing of firearms and ammunition, the lawmaker
nevertheless wished to lay down
suitably tailored requirements which
would apply specifically to members of ‘Official Institutions’
in regard to their
possession and carrying of firearms. The defining
of ‘employee’ for this purpose does not justify a
conclusion that
the ‘Official Institution’ which benefits
from the exemption is a notional entity distinct from its members. On
the
contrary, it reinforces the view that the exemption in s 96(1)
in relation inter alia to the general provisions of the Act
concerning the licensing, possession and carrying firearms operates
in favour of the very members who are the ‘employees’
regulated by the specific provisions of s 98.
[71]
The question may be raised whether it is
appropriate, as a matter of policy, that SAPS members (and members of
other ‘Official
Institutions’) should be exempt from the
criminal liability created by s 120. However, the exemption in
s 96(1)
is expressed in general terms. If the exemption were
held not to benefit the individual members of SAPS, it would be
deprived of
all practical utility in regard to the many provisions of
the Act in relation to which it was clearly intended to operate.
There
is no way in which s 120 can, by a process of
interpretation, be excised from the scope of the exemption. One might
argue
that to exempt police members from s 120(3) removes a
constraint which might otherwise cause them to use their firearms
more
responsibly. On the other hand, and at least in regard to the
negligent discharge of firearms, it might be said that police
members,
who in the course of their work have far greater need than
the ordinary person to use or consider using their firearms, should
not have the spectre of criminal liability looming over their heads
whenever in stressful situations they make judgement calls which
may
later be found by a court to have been negligent. The member (and
usually the Minister vicariously) would remain civilly liable
for
negligently caused injury and damage; and if the injured person dies,
the member could still be charged with murder or culpable
homicide.
Furthermore, a member who negligently discharges his firearm and
causes injury would presumably be subject to internal
discipline.
[72]
The provisions of the Arms and Ammunition
Act 75 of 1969, the Act repealed by the
Firearms Control Act, do
not,
by way of historical background, shed much light on the question.
Section 45(1) of the Arms and Ammunition Act contained an
exemption
which operated inter alia in favour of ‘any person on behalf of
the State’, ‘any person in his capacity
as a person in
the service of the State’ and ‘any person for the
purposes of the Defence Act’. The exemption
was thus in favour
of the individuals rather than a State institution conceived of as a
separate entity, which is also how I interpret
s 96(1) of the
Firearms Control Act. Section
45(1) of the old Act, like s 96 of
the new Act, excluded certain provisions from the operation of the
exemption. It is of
interest to note that among the provisions to
which the exemption did not apply were those contained in s 39,
which created
the offences and penalties under the old Act. Section
39(1)(l) was the counterpart of the offence created by s 120(3)(a).
It follows that under the Arms and Ammunition Act a police member
could be charged and convicted for negligently discharging a firearm
but that is because the exemption expressly did not apply to s 39.
By contrast, the lawmaker in s 96(1), while excluding
certain
other provisions of the Act from the operation of the exemption, did
not exclude s 120.
[73]
In order for the exemption in s 96(1)
to operate, it is not enough that the person is a police officer. He
or she must in the
relevant respect have been acting in the course
and scope of his or her functions as a police officer. Accordingly,
the police
officer, while not being subject to the Act in respect of
his or her official firearm, would need to comply with the Act in
respect
of his or her private firearms. Furthermore, the exemption
test is not necessarily co-extensive with that for vicarious
liability.
The test for vicarious liability has in recent years been
widened to include conduct with a ‘sufficient connection’
to the police official’s employment, even though the police
official may have had no intention, when perpetrating the wrongful
conduct, of furthering the interests of the police (see
K
v Minister of Safety & Security
[2005] ZACC 8
;
2005
(6) SA 419
(CC) and
F v Minister of
Safety & Security
2012 (1) SA 536
(CC), dealing with rapes perpetrated by police officials)
.
It would not accord with legal policy to regard the police official
in such circumstances as functioning as a SAPS member for
purposes of
the s 96(1) exemption. In the present case, however, the
appellant was on duty, he used his official firearm,
and he clearly
was acting in the course and scope of his duties as a police officer
and saw himself as furthering the interests
of the police.
[74]
I thus conclude that a conviction on the
alternative counter is not competent.
Conclusion
[75]
The appeal succeeds, and the conviction and
sentence are set aside.
Riley
AJ:
[76]
I concur.
______________________
ROGERS
J
______________________
RILEY
AJ
APPEARANCES
For Appellant: Mr P
van Wyk
Instructed
by:
The
State Attorney
Cape
Town
For Respondent: Ms L
Mcani
Office of the DPP
Cape
Town
[1]
It
appears to me, with respect, that the view expressed on this
question by the learned authors of Burchell o
p
cit
at
322-323 overlooks the authority of
Barnard
and
De
Ru
.