Govender v Minister of Safety and Security

• Jurisdiction: South Africa
• Judge: Hefer ACJ, Smalberger ADCJ, Olivier JA, Scott JA and Cameron JA
• Judgment Date: 01 June 2001
• Docket Number: 342/99
• Hearing Date: 16 March 2001
• Counsel: N Singh SC (with R J A Callum) for the appellant. J E Hewitt SC (with P S Smith and A A Gabriel) for the respondent.
• Court: Supreme Court of Appeal

Olivier JA:

[1] This is an appeal, with the leave of the learned trial Judge, Booy- sen J, against an order issued by him in the Durban and Coast Local Division of the High Court absolving the defendant (now the respondent) from the instance, with costs. D

[2] In the action, the appellant (plaintiff), the father of his minor son, Justin, claimed damages from the defendant as a result of serious injuries sustained by Justin when he was shot in the back by a policeman, Inspector Cox. The shot fractured Justin's spine; he is now a paraplegic. The cause of action arose at Durban on 16 June E 1995. At the time Justin was a matriculant, aged 17 years.

[3] The fact that Cox fired the shot that injured Justin is not in dispute. Nor that Cox at the time was acting within the course and scope of his employment. It is also not in issue that Cox fired the shot with the intention of wounding Justin. The only element remaining F to found a delictual cause of action against Cox, and consequently vicarious liability on the part of the respondent, is that of wrongfulness.

[4] The respondent's case is that the action taken by Cox, although prima facie wrongful as a violation of Justin's constitutional rights, was justified, and therefore not wrongful, Cox G having acted within the scope and ambit of s 49(1) of the Criminal Procedure Act 51 of 1977 (the Act). The crux of the defence is that Justin was involved on the particular evening in the theft of a motor vehicle; Cox was attempting to arrest him; Justin was, despite oral warnings and a warning shot, fleeing from Cox, who was pursuing him, H armed with a service hand-weapon and that the latter then fired the shot, it being reasonably necessary to prevent Justin from fleeing. This defence raises questions relating to the interpretation of s 49(1) by our Courts and the application of a number of constitutional principles enshrined in the Constitution of the Republic of South Africa Act 200 of 1993 (the interim Constitution). I

The factual scene

[5] The factual findings made by Booysen J at the end of the trial were not placed in issue in this appeal. These findings can be summarised as follows: J

Olivier JA

(1)

The owner of the stolen car (the BMW) had parked it at a A shopping complex in Tarndale Road, Durban, on the evening in question. There it was stolen.

(2)

Justin and two of his friends, Julian and Kugin, of approximately his own age, spent the first part of the evening together, drinking beer and trying to find dagga (cannabis) to smoke. Eventually they ended up on foot at the shopping complex where the BMW B was parked. There they met one Bilal who had apparently stolen the keys of the BMW. The four of them got into the BMW and drove off.

(3)

Justin and his friends were aware that the car was stolen. Bilal later got out of the car, taking with him a leather jacket and an angle grinder which were in the boot of the car. C

(4)

Justin was the driver of the stolen vehicle.

(5)

In the mean time, the owner of the BMW had reported the theft of his car. Cox and Sergeant Hillcoat were on patrol duty in a police vehicle. Hillcoat was driving. They saw the BMW turning from Stanley Copley Drive into Alpine Road. In doing so, the car went off D the road and struck a water meter and the wall of a block of flats. It then proceeded along Alpine Road. The police officers thought that the driver of the BMW was drunk. They switched on the siren and blue lights of the police car and gave chase. The BMW failed to stop. Cox then E called the control room on the police radio and was informed that the BMW had been stolen earlier that evening. He was given no further details. The chase continued at high speed.

(6)

The BMW turned into a parking area in Harbottle Street, spun around 180 degrees, and came back straight at the police car. Cox then F saw the driver and one other person get out of the car and start running away. Hillcoat had to stop the police vehicle. Cox alighted first and pursued the two suspects up Harbottle Road and shouted: 'Stop! Police! Stop!' Because the suspects ignored the warning, he fired a warning shot into a grass bank and then again shouted to them to stop. By then they were running in Chapel Street. G

(7)

When Cox alighted from the police vehicle, the two suspects were about twenty to thirty metres from him. The passenger ran ahead of the driver (Justin) and both were outpacing Cox. The passenger then disappeared to the right around the corner of a building. Justin kept H on running away and was then about fifty metres from Cox.

(8)

Cox was convinced that he would not be able to catch Justin and fired at him, while still running. He aimed at Justin's legs.

(9)

Justin fell down. Cox went up to him and Justin admitted that the vehicle had been stolen in Asherville. I

(10)

Justin was unarmed and, as stated earlier, a matriculant, aged 17 years and still at school.

(11)

Hillcoat was unsuccessful in finding the second suspect. A policeman from the dog unit, together with his dog, arrived later to try to trace the second suspect, but with no success. J

Olivier JA

Section 49(1) of the Criminal Procedure Act A

[6] The section reads as follows:

'49. Use of force in effecting arrest

(1) If any person authorised 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

(b)

flees when it is clear that an attempt to arrest him is being made, or resists such attempt and flees;

the person so authorised 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.' C

[7] In the present case, the trial Court found that the action taken by Cox was reasonably necessary (in the words of s 49(1)) to prevent Justin from escaping and thus found that Cox had acted lawfully:

'It seems to me that at common law and in terms of s 49(1) the Courts approach each case on its own facts and circumstances in the general context of our society and, of course, also the Constitution in deciding in each particular case whether the degree and type of force D applied was the minimum force possible, reasonable, necessary and proportionate, such as to justify a reliance upon s 49(1). It cannot, in my view, be contested that in terms of criminal offences, two of the most prevalent and present dangers to South African society are the theft of motor vehicles and the closely related offence of the hijacking of motor vehicles. Many lives are lost in seeking to prevent E the escape of motor vehicle thieves and their apprehension. In this case the stolen vehicle had to be followed at high speed, and in the end the police had to avoid...