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
• Counsel: N Singh SC (with him R J A Callum) for the appellant. J E Hewitt SC (with him P S Smith and A A Gabriel) for the respondent.
• Hearing Date: 16 March 2001
• Court: Supreme Court of Appeal

Govender v Minister of Safety and Security
2001 (2) SACR 197 (SCA)

2001 (2) SACR p197

Citation	2001 (2) SACR 197 (SCA)
Court	Supreme Court of Appeal
Judge	Hefer ACJ, Smalberger ADCJ, Olivier JA, Scott JA and Cameron JA
Heard	March 16, 2001
Judgment	June 1, 2001
Counsel	N Singh SC (with him R J A Callum) for the appellant.; J E Hewitt SC (with him P S Smith and A A Gabriel) for the respondent.

Flynote : Sleutelwoorde D

Arrest — Use of force in effecting arrest — Reasonable force — What constitutes — Proper interpretation of s 49(1) of Criminal Procedure Act 51 of 1977 in light of new constitutional provisions — Proportionality between nature and degree of force used and E threat posed by fugitive to safety and security of police officers, other individuals and society as a whole — No such proportionality when unarmed youth shot by police when attempting to flee after having been found driving stolen vehicle.

Headnote : Kopnota

The appellant, had instituted a claim for damages in a Local F Division arising out of the shooting of his 17-year old son by a policeman. As a result of the shooting the appellant's son was a paraplegic. The trial court absolved the respondent from the instance, holding that the policeman who had shot the appellant's son was acting within the scope and ambit of s 49(1) of the Criminal Procedure Act 51 of 1977. It appeared that the appellant's son and G some friends were seen by the police driving a stolen car. The police gave chase and switched on their siren and blue lights but the appellant's son, who was driving the car, failed to stop. After a high speed chase the appellant stopped the car and attempted to run away. One of the policemen pursued him on foot and shouted to him to stop. H The policeman fired a warning shot into a grass bank and again shouted to him to stop. The policeman was convinced that he would not be able to stop the appellant's son and fired a shot at his legs - the shot struck him in the spine.

On appeal it was argued that the approach of the trial court was flawed in that it lost sight of the constitutionally protected rights to which even a fleeing suspect was entitled under the interim Constitution (Act 200 of 1993), viz the right to life (s 9), the right to physical I integrity (s 11(1)), the right to protection of his dignity (s 10), the right to be presumed innocent (s 25(3)(e)) and the right to equality before the law and to equal protection of the law (s 8(1)). The appellant did not attack the constitutional validity of s 49(1) but requested the court to interpret it or read it down so as to comply with the correct constitutional standard. It was contended that the threshold requirement laid down in s 49(1) as interpreted until now had J

2001 (2) SACR p198

been extremely low: it did not expressly qualify the nature and A extent of the force which could be used. The requirement that there be proportionality between the degree of force used and the seriousness of the crime of which the victim is suspected was still too low and that did not comply with the constitutional standards of reasonableness and justifiability: those standards required a further factor to be taken into account, viz whether the suspect posed an immediate threat or B danger of serious physical harm to the police officer pursuing him or a threat of physical harm to others.

Held, that the 'threat' or 'danger' requirement was used in other constitutional states and seemed to represent a rational and equitable way of balancing the interests of the state, society, the police officers involved, and of the fugitive. It represented, in the final instance, a proper mechanism for balancing collective against C individual interests. It was far better than simply weighing up the seriousness of the offence against the degree of force used, because the latter did not adequately protect the interest of the fugitive, nor did it sufficiently define the circumstances in which police officers in the interests of society were permitted to use force.

Held, further, that in giving effect to s 49(1) of the Act, and in applying the constitutional standard of reasonableness the D existing (and narrow) test of 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 fugitive to the safety and security of the police officers, other individuals and society as a whole. In so doing, full weight should be given to criteria such as that the fugitive is obviously young, or unarmed, or E of slight build, etc, and where applicable, whether he could have been brought to justice in some other way. In licensing only such force necessary to overcome resistance or prevent flight, as is 'reasonable', s 49(1) implies that in certain circumstances the use of force necessary for the objects stated will nevertheless be unreasonable.

The words '. . . use such force as may in the F circumstances be reasonably necessary to prevent the person concerned from fleeing . . .' in s 49(1)(b) of the Act had to be generally interpreted so as to exclude the use of a firearm or similar weapon unless the person authorised to arrest, or assist in arresting, a fleeing suspect had reasonable grounds for believing: (1) that the person posed an immediate threat of serious bodily harm to him or her, or a threat of harm to the public; or (2) that the suspect had G committed a crime involving the infliction or threatened infliction of serious bodily harm.

Held, further, that on the facts of the present case, if one were to apply the test of proportionality between seriousness of the offence and the force used, it could correctly be said that the theft of a motor vehicle was a serious offence and having regard to the high H incidence of this offence in our country, one that should be combatted vigorously. Against that, the use of a firearm to shoot at another person was also a serious, inherently lethal, matter. But when the broader approach of proportionality between the threat posed by the fugitive and the degree and nature of the force used, was applied, that the scale was tipped in favour of the appellant's son: he was unarmed I and the policeman did not see a weapon in his possession. He was 17 years old and it must have been obvious to the policeman, when he commenced the pursuit of the fugitives, that they were mere youths. There was no allegation of hijacking, assaults or other acts of physical violence having been perpetrated by the appellant's son or the other passengers in the car. Nor was there any threat or danger to the police or members of the public. Under these circumstances, the shooting was not encompassed by the J

2001 (2) SACR p199

provisions of s 49(1) properly interpreted and the shooting was unlawful. A Appeal upheld.

Case Information

Appeal from a decision in the Durban and Coast Local Division (Booysen J).

N Singh SC (with him R J A Callum) for the appellant.

J E Hewitt SC (with him P S Smith and A A Gabriel) for the respondent. B

Cur adv vult.

Postea (1 June).

Judgment

Olivier JA:

[1] This is an appeal, with the leave of the learned trial Judge, C Booysen 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.

[2] In the action, the appellant ('plaintiff'), the father of his minor son, Justin, claimed damages from the defendant as a result of D 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 June 16, 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 E 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 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, F although prima facie wrongful as a violation of Justin's constitutional rights, was justified, and therefore not wrongful, Cox 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, G 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 H of South Africa...