Cele v Minister of Safety and Security

• Jurisdiction: South Africa
• Judge: Patel J, Kruger J, Van Zyl J
• Judgment Date: 15 October 2008
• Docket Number: AR 437/07
• Court: Natal Provincial Division
• Hearing Date: 06 February 2008
• Citation: 2008 JDR 1294 (N)

Patel J:

[1]

The appellants, Msizi Yacoob Cele and eight others with leave of the court a quo, appeal against the dismissal of their action against the respondent, the Minister of Safety and Security. The action arose out of a shooting incident which took place on the 20th April 2004, in KwaMashu, Durban. As a result of the shooting Cele became a paraplegic whilst the other occupants of the kombi in which Cele was a passenger and which was shot at by the servants of the respondent, namely Inspectors Botha and Bensch as well as Sergeant Enoch, were either killed or injured.

[2]

It became common cause that the aforesaid police officers acted in the course and scope of their employment. Accordingly the respondent bore the onus of proving that the shooting at the taxi with its attendant consequences and arrests were justifiable and lawful in the circumstances. By agreement between the parties the court below was requested to determine two essential issues, and these have been succinctly set out in the judgment of the court a quo and I take the liberty of repeating the same, namely :

"The issues to be determined : unlawful shooting

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5.

In the matters, numbered 1, 2, 3, 4, 5, 6, 8 and 9 on annexure "A" the issues to be determined are the following, namely:

Has Defendant proven that the shooting by the three police officials of the relevant people and the motor vehicle was justified on a balance of probabilities? In other words, did the Defendant prove that the police officials acted in self-defence. If not, judgment must be entered for Plaintiffs.

(b)

if the answer is in the affirmative, then the question which would have to be answered by this Honourable Court is whether the actions of the police were reasonable or whether the bounds of self-defence were exceeded.

Issues to be determined : unlawful arrest

6.

The parties agreed as follows in respect of matters 4, 5, 6 and 7.

(a)

It is accepted that an arrest without a warrant is prima facie unlawful and that the Defendant bears the onus to prove that the arrests were lawful. The question therefore is, has the Defendant proven the lawfulness of the arrest?

In this regard the parties decided that should the Court find that no shots were fired by the occupants of the motor vehicle bearing registration number NC 6134, at the police, then the arrests would be unlawful.

7.

Should the Court find that the shootings and the arrests were unlawful and not justified and/or reasonable, the Court should grant an order as per the attached draft orders in each relevant matter. Should the Court find that the shootings were reasonable and lawful, and that the arrests were lawful, the relevant cases should be dismissed with costs."

By consent and in terms of Rule 33 (4) of the Uniform Rules of Court, the matter proceeded on the question of the liability of the respondent. Every other issue stood over for later determination. It was further agreed between the parties that the matter of Cele under Case No. 21749/04 would proceed to trial whilst the other eight matters which had been consolidated with Cele's matter and

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which were accorded the numbers 2 to 9 as reflected in Annexure "A" to the judgment should be considered by the Court.

[3]

I am of the view that the learned Judge in a very thorough judgment properly analysed the evidence led in the Court a quo and came to the conclusion that the probabilities favours the version of the respondent as testified to by its servants. I am also of the view that on the conspectus of the evidence led in the Court a quo, the decision of the court below cannot be faulted and I too would have come to the same conclusion and for the same reasons. I therefore would dismiss the appeals.

[4]

I set out hereinbelow my reasons. It would be jejune to set the evidence in any great detail since as I have mentioned earlier, the learned Judge has already done a thorough analysis of the evidence. The version of the appellants is completely irreconcilable with that of the respondent. The Court a quo was therefore in the same position as we are in that the matter falls to be determined on the probabilities emerging from such evidence. To constrain for the probabilities in their favour the appellants relied also on the evidence of their expert witness, Mr Jacobus Steyl, a forensic expert in the theoretical and practical application of ballistic science. I shall say more about his evidence a little later.

[5]

On the 20th April 2004, Inspectors Bensch, Botha and Sergeant Enoch, members of the Flying Squad were on patrol duty. It is common cause that they were contacted by radio-control to attend to a complaint from a home in M Section, KwaMashu. The complaint from the occupants of this house was that armed men in a kombi bearing registration number and letters NC 6134 ("the kombi") had parked outside the home and men had emerged and pointed firearms in their direction. The complainant also provided the police officers with the details of the kombi. Although the complainant did not testify, it was not in dispute that such a complaint was received.

[6]

The appellants' version in brief is that on the evening of the 20th April 2004, Mr Dawood Cassim Cele (Dawood), the owner of the kombi received a call from one Mbuso whilst he was at his store in Inchanga. Mbuso informed him that he had information regarding

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one of his other taxi's which had been stolen a month earlier. It was arranged that they would meet in M Section, KwaMashu. Dawood together with 8 other persons departed from Inchanga to M Section, KwaMashu to meet Mbuso. They waited there for approximately thirty (30) minutes and when Mbuso arrived they were advised that the stolen taxi was in the Verulam/Ndwedwe area. Mbuso suggested that they go in search of the taxi but...