Malahe and Others v Minister of Safety and Security and Others

• Jurisdiction: South Africa
• Judge: Smalberger JA, F H Grosskopf JA, Streicher JA, Farlam AJA, Ngoepe AJA
• Judgment Date: 10 September 1998
• Citation: 1999 (1) SA 528 (SCA)
• Docket Number: 401/96
• Hearing Date: 17 August 1998
• Counsel: F Wike (with him S Eckstein) for the appellants B Knoetze for the respondents
• Court: Supreme Court of Appeal

Smalberger JA:

Arising out of a shooting incident which occurred in the early hours of 18 April 1990 in Berea, Johannesburg, the appellants (as plaintiffs) instituted action against the respondents (as defendants) for damages for unlawful assault as well as, in the case of the first and third appellants, wrongful or malicious arrest and G detention, and malicious prosecution. The matter came before Goldblatt J in the Witwatersrand Local Division. The learned Judge ruled that the issue of liability for any damages sustained by the appellants was to be determined separately from the quantum of such damages. After a protracted trial Goldblatt J held that the H respondents were liable jointly and severally for any damages sustained by the appellants as a consequence of the unlawful assault upon them on 18 April 1990, and as a result of the malicious arrest, detention and prosecution of the first and third appellants. In addition the respondents were ordered to pay the appellants' costs. I

The respondents were granted leave to appeal to the Full Court of the Transvaal Provincial Division. That Court upheld the appeal with costs and made an order granting judgment for the respondents in respect of the claims for 'injury, arrest and detention', and absolution from the instance in respect of the claim for malicious prosecution, in both instances with costs. Subsequently the appellants sought and were J

Smalberger JA

granted special leave to appeal to this Court. The leave granted excluded leave in respect of the claims for arrest, A detention and malicious prosecution.

It is a matter for concern that a period of more than eight years has elapsed since the occurrence giving rise to the litigation under consideration. It is not possible from the record to determine if anyone is to blame for this state of B affairs. Justice delayed is justice denied, as the saying goes. It is incumbent upon courts and practitioners alike to strive conscientiously at all times to ensure that matters are disposed of as expeditiously as possible lest litigants be prejudiced and the administration of justice consequently suffer in its reputation.

In relation to the incident giving rise to the appellants' action the following facts are either common cause or no C longer in dispute. A Toyota Corolla vehicle ('the Toyota'), belonging to the first appellant ('Malahe'), had been parked overnight in Beatrice Street, Berea. The Toyota's shape was that of a panel van/station wagon. It had two doors and a tailgate. There were two seats in the front but none at the back, as the rear had been converted for D storage and sleeping purposes. The photographs of the Toyota which form part of the record confirm that there were windows along both sides of the Toyota and a large rear window in the tailgate.

At some time between 04:30 and 05:00 on 18 April 1990 the Toyota was driven by the third appellant ('Malo') E along Beatrice Street in a northerly direction. There were two passengers in the vehicle, Malahe and a woman whose identity was in dispute at the trial. The Toyota turned right into Park Lane and then right again into Tudhope Avenue. Shots were fired at the Toyota in Park Lane by the second respondent ('Van Zyl') and the fourth respondent ('Botha') who were on foot at the time. The shots were fired deliberately with a view to causing the F Toyota to stop and to arrest Malo. After the Toyota turned into Tudhope Avenue, proceeding in a southerly direction, it was pursued by an unmarked police vehicle driven by the third respondent ('Roos') in which the fifth respondent ('Du Preez') was a passenger. A high speed chase ensued during the course of which Roos and Du G Preez fired further shots at the Toyota with the intention of forcing it to stop and bring about an arrest. In firing the shots the second to fifth respondents were acting within the course and scope of their duties as policemen.

The majority of the shots fired struck and penetrated the body of the Toyota and Malahe sustained eight bullet wounds. The area traversed by the Toyota, and where the shots were fired, was relatively well lit. The chase H ended at a bend where Tudhope Avenue merges with Hadfield Road where Malo, because of the speed at which he was travelling, lost control over the Toyota and it overturned.

The issues on appeal are confined to whether the second to fifth respondents were guilty of an unlawful assault, or I negligent conduct, giving rise to injury suffered by the appellants, the pleadings having been amended on appeal to make it clear that the appellants were relying upon both possible causes of action. (There was no objection to the amendment on behalf of the respondents as all matters relevant thereto had been fully canvassed at the trial.) The common cause facts give rise to a J

Smalberger JA

prima facie inference of wrongfulness on the part of the second to fifth respondents. They also establish that their A conduct in relation to Malo was intentional. There accordingly exists prima facie evidence of an unlawful assault by the second to fifth respondents on Malo.

The respondents do not seriously contest that the overturning of the Toyota, and any injury occasioned to its B occupants thereby, was causally connected, both factually and legally, to the shooting. In my view, on either version of what occurred (with which I shall come to deal), the required nexus has been established. The respondents sought to justify the shooting at Malo, and rebut the prima facie inference of wrongfulness, by relying C on the provisions of ss 40(1) and 49(1) of the Criminal Procedure Act 51 of 1977 ('the Act'). Section 40(1) authorises the arrest by a policeman (peace officer) without a warrant of any person who, inter alia, commits any offence in his presence or whom he reasonably suspects of having committed an offence referred to in Schedule 1 of the Act (which includes theft). Section 49(1) provides that: D

'(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)

. . .

(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 E necessary to overcome the resistance or to prevent the person concerned from fleeing.'

The force that may be used will include, in appropriate circumstances, the use of a firearm. The respondents correctly accept that the onus is on them to justify the conduct of the second to fifth respondents in shooting at F Malo (Macu v Du Toit en 'n Ander 1983 (4) SA 629 (A) at 632H, 637D—E). In relation to the other occupants of the Toyota (Malahe and the woman passenger) the respondents' defence was that they were unaware of their presence. This was the only course open to them as s 49(1)(b) of the Act could not, on the respondents' version of the events, have provided them with a defence in respect of such occupants. They (the occupants) were not G suspected of having committed any offence, no attempts were made to arrest them or warn them of possible arrest, nor could they have been thought to be fleeing from arrest (Macu v Du Toit en 'n Ander (supra at 641E—F); Prince and Another v Minister of Law and Order and Others 1987 (4) SA 231 (E) at 238A—B; Hughes en Andere v Minister van Wet en Orde en Andere 1992 (1) SACR 338 (A) at 343e—h). The H requirements of s 49(1)(b) could accordingly not have been met. Insofar as the second to fifth respondents (1) denied their knowledge of any passengers in the Toyota and (2), in any event, put in issue the presence of second appellant in it at the relevant time, the onus was on the appellants to prove such knowledge and presence. The I onus to establish negligence on the part of the second to fifth respondents also rests on the appellants.

The respondents, having accepted the onus to justify the shooting at Malo, commenced leading evidence at the trial. Botha, Van Zyl and Roos testified. Their evidence, in broad outline, was to the following effect. During the early hours of 18 April 1990 they and Du Preez were J

Smalberger JA

patrolling Berea in an unmarked police vehicle. Roos was the driver. They were there to observe and apprehend, A where possible, persons who might be seen committing crimes. At approximately 04:00 they noticed someone who appeared to be acting suspiciously at the intersection of York and Barnato Streets. The person was walking between parked cars and peering into them. Van Zyl and Botha were dropped at different points to enable them to B keep the suspect under observation from positions where they would not be seen. They remained in radio contact with the remaining occupants of the police vehicle. The suspect was kept under observation for about 40 minutes while he (the suspect being a male) wandered around a number of streets peering into parked vehicles. C Eventually he broke into an Alfa Romeo parked in Doris Street...