Kgaleng v Minister of Safety and Security and Another

• Jurisdiction: South Africa
• Judge: Cloete J
• Judgment Date: 29 March 2001
• Citation: 2001 (4) SA 854 (W)
• Docket Number: 25118/97
• Counsel: S Jacobs for the plaintiff. D J Joubert for the defendants.
• Court: Witwatersrand Local Division

Kgaleng v Minister of Safety and Security and Another
2001 (4) SA 854 (W)

2001 (4) SA p854

Citation	2001 (4) SA 854 (W)
Case No	25118/97
Court	Witwatersrand Local Division
Judge	Cloete J
Heard	March 20, 2001; March 22, 2001; March 23, 2001; March 26, 2001; March 27, 2001
Judgment	March 29, 2001
Counsel	S Jacobs for the plaintiff.; D J Joubert for the defendants.

Flynote : Sleutelwoorde D

Delict — Liability for — Wrongful causing of death — Defences — Self-defence — Aimed at showing that attack on deceased E not wrongful — Test is objective — Based on true facts established ex post facto — Enquiry whether, judged on those facts, defendant's response reasonable — Enquiry taking no account of F defendant's subjective view of occurrence — Where facts showing that, objectively viewed, defendant not in physical danger, plea of self-defence failing — Defendant nevertheless able to escape liability on basis that bona fide, though erroneous, belief that conduct justified excluding consciousness of wrongfulness (thus excluding fault in form of dolus) and provided that reasonable person would not have reacted differently in G defendant's circumstances (thus excluding fault in form of culpa).

Headnote : Kopnota

The plaintiff claimed damages from the first defendant for the allegedly unlawful killing of her husband by the second defendant, a policeman. It was common cause between the parties that the second defendant had shot the deceased and that the first defendant H would be vicariously liable for any delict the second defendant might have committed in doing so. The second defendant's evidence was that he had shot the deceased because he had seen projecting from the deceased's hand what appeared to him to be the detonating mechanism of a hand grenade. He had believed that his life was in danger because he thought that the deceased was in the process of I activating the grenade preparatory to throwing it at him. A teargas canister was later found near the deceased's body. The defendants pleaded that, in shooting the deceased, the second defendant had acted in self-defence; alternatively, that he bona fide and reasonably had believed that he was entitled to do so.

Held, that the issues were (a) whether the second defendant had acted in self-defence and thus lawfully; if not (b) whether he bona fide had believed J

2001 (4) SA p855

that he had been entitled to shoot the deceased; and, if so, (c) whether he had been negligent. (Paragraph [4] at 856H - I.) A

Held, further, that a plea of self-defence was aimed at showing that the attack by the second defendant had not been wrongful. For that reason the test was objective, based only on the true facts established ex post facto. The question was thus whether, judged against those facts, his response was a reasonable one in the situation. The test did not take account of the defendant's B subjective view of the occurrence. (Paragraph [15] at 865C/D - F/G.)

Held, accordingly, that the deceased's possession of a teargas canister, even assuming that he had intended activating it and throwing it at the second defendant, had not objectively constituted a physical danger to the second defendant. The plea of self-defence could not, therefore, succeed. (Paragraph [15] at 865H/I - I.) C

Held, further, that, despite the finding that the second defendant's conduct had been wrongful, the defendants could still escape liability on the basis that the second defendant's bona fide, though erroneous, belief that his conduct was justified excluded consciousness of wrongfulness (and thus fault in the form of dolus) on his part, and provided that a reasonable person would not have reacted differently from the manner in which the D second defendant had reacted in the circumstances (thus excluding fault in the form of culpa). (Paragraph [16] at 865I/J - 866A/B.)

Held, further, on the evidence, that the probabilities were that when the second respondent had shot the deceased, the deceased had been holding a teargas canister in front of him. The second defendant's evidence that he subjectively had believed the E teargas canister to be a hand grenade and that, when he had shot the deceased, he subjectively had believed that he was entitled to do so in defence of his life could be accepted. (Paragraph [27] at 874F - G.)

Held, further, that this finding excluded fault in the form of dolus since dolus comprised not only the intention to achieve a particular result, but also the consciousness that such a result would be wrongful. (Paragraph [28] at 874G/H - H.) F

Held, further, as to negligence, that the plaintiff's argument that the second defendant had been negligent in shooting because the object in the deceased's hands could have been a teargas canister lost sight of the potentially fatal consequences should the supposition upon which the second defendant was supposed to have refrained from taking pre-emptive action have been proved to be incorrect. (Paragraph [29] at 875C/D - e.) G

Held, further, that the detonating mechanism of a hand grenade, even in the bright light of the Court room and at a distance of approximately three metres (the events had taken place after 20:00 in an area lit by an Apollo light), was indistinguishable from the detonating mechanism of a teargas canister such as that found next to the deceased's body after he had been shot. (Paragraph [10] at H 860E - F.) A reasonable person in the position of the second defendant would have behaved no differently in the circumstances. Fault in the form of negligence had thus been absent. The plaintiff's claim was accordingly dismissed. (Paragraph [29] at 875E - F.)

Cases Considered

Annotations

Reported cases I

Dantex Investment Holdings (Pty) Ltd v Brenner and Others NNO 1989 (1) SA 390 (A): dictum at 396D - E applied

Jansen van Vuuren and Another NNO v Kruger 1993 (4) SA 842 (A): compared

Mabaso v Felix 1981 (3) SA 865 (A): applied

R v Gumede 1949 (3) SA 749 (A): referred to J

2001 (4) SA p856

S v De Oliveira 1993 (2) SACR 59 (A): dictum at 63i - 64a compared and applied A

S v Goliath 1972 (3) SA 1 (A): compared

S v Sataardien 1998 (1) SACR 637 (C): dictum at 643j - 644f compared and applied.

Case Information

Civil trial in an action for damages for wrongful death. The facts appear from the reasons for judgment. B

S Jacobs for the plaintiff.

D J Joubert for the defendants.

Cur adv vult. C

Postea (March 29).

Judgment

Cloete J:

Introduction D

[1] The plaintiff's claim is for damages for the alleged wrongful killing of her husband, the deceased, by the second defendant, Inspector Myburgh, a policeman.

The common cause facts and the issues E

[2] The amount of the plaintiff's claim has been agreed. It is also common cause that at about 20:00 on 1 November 1996 and at Leboeng Section, Tembisa, the second defendant shot the deceased and that the first defendant, the Minister of Safety and Security, is vicariously liable for any delict which the second defendant may have committed in doing so. F

[3] The plaintiff's particulars of claim allege that in shooting the deceased, the second defendant acted 'unlawfully'. The defendants' counsel accepted in argument at the end of the trial that it was open for the plaintiff to show that the second defendant had acted intentionally or negligently. The concession was properly made: cf Jansen van Vuuren and Another NNO v G Kruger 1993 (4) SA 842 (A) at 849E.

[4] The defendants pleaded that in shooting the deceased the second defendant acted in self-defence; alternatively that he bona fide and reasonably believed that he was entitled to do so. There are accordingly three issues: H

(1)

whether the second defendant acted in self-defence and therefore lawfully; if not,

(2)

whether the second defendant bona fide believed that he was entitled to shoot the deceased; and, if so,

(3)

whether the second defendant was negligent. I

The onus on the first issue is on the defendants: Mabaso v Felix 1981 (3) SA 865 (A). The parties accepted that the onus on the second and third issues was on the plaintiff, and this seems to me to be correct: Dantex Investment Holdings (Pty) Ltd v Brenner and Others NNO 1989 (1) SA 390 (A) at 396 (and see Midgley 'Delict' in Joubert (ed) The Law of South Africa 1st reissue (1995) vol 8, part 1, para 90 at 121). J

2001 (4) SA p857

Cloete J

The area A

[5] It would be convenient at this stage of the judgment to describe the general area where the shooting took place.

Exhibit A comprises a sketch plan and photographs. So does exhibit B. The photographs in exhibit A were taken by Captain Khoza on the same night that the deceased was shot and at about 00:20. The photographs in B exhibit B were taken in daylight by Captain Jurgens apparently 18 months later. To the extent that the correctness of these exhibits was not formally admitted, it was established in evidence.

The sketch plan at p 64 of exhibit A shows a street running from south to north. This street was referred to during the trial as 'street number 2'. (A view of street 2 looking north appears from C photographs A1, B2, B3 and B11 and, looking south, from photograph B12.) At the bottom and also in the middle of the sketch plan are streets which run from left to right, ie west to east. Each forms a T-intersection with street 2. These streets were referred to during the trial as 'streets 1 and 3' respectively. (A view of D street 1 looking east appears from photograph B1. A view of street 3 looking east appears from photograph B4. The intersection of streets 2 and 3 also appears from photograph B3.)

On the eastern side of street 2 is a row of houses. House 419, the southernmost house on the sketch plan, is opposite street 1. As one travels north in street 2 one passes houses 420, 421...