Mhlongo and Another NO v Minister of Police

• Jurisdiction: South Africa
• Judge: Rumpff CJ, Jansen JA, Corbett JA, Miller JA and Diemont JA
• Judgment Date: 27 February 1978
• Hearing Date: 11 November 1977
• Court: Appellate Division

Corbett JA:

This appeal raises, once again, the question of the liability of the State for the wrongful act of one of its servants.

In the Court a quo (the Transvaal Provincial Division) the relevant facts were common cause (having been agreed to at a pre-trial conference) and the Court was asked to give its ruling, in terms of Rule 33 (6) of the Rules of the Supreme Court, on the question of law raised thereby. The facts and the resulting question of law, as agreed by the parties, are the following.

The case concerns an occurrence which took place in Johannesburg at about midday on Saturday, 8 May 1971, and in which one Dingizwe

Corbett JA

William Mhlongo (whom I shall call "the deceased") and coloured sergeant J de Klerk, of the South African Police, were the main participants. At the A time De Klerk was stationed at John Vorster Square, under the immediate command of sergeant E A Bronkhorst, and was a member of the crime prevention unit. At 10 am on 8 May 1971 De Klerk and coloured constable I Crowie were posted by Bronkhorst to crime prevention duties in an area in central Johannesburg. Their duties entailed the prevention of crime in general and in particular the kind of offences likely to be committed in central Johannesburg on a Saturday morning, viz theft, robbery, B pick-pocketing, theft from motor cars, theft from shops, theft from persons and contraventions of the liquor, gambling and drug laws. Bronkhorst expressly ordered De Klerk and Crowie to look out, while on duty, for any contravention of any laws by any person and, amongst other C things, they were told to be on the look-out for thefts from motor vehicles. De Klerk was armed with a service pistol.

Included within the area to which De Klerk and Crowie were posted on the day in question was the section of Nugget Street (which runs north-south) lying between its intersection with Bree Street (to the north) and with Jeppe Street (to the south). This portion of Nugget Street is lined on both sides with multi-storeyed office blocks, warehouses and shops. People D must be expected to be constantly entering and leaving buildings at any time on a Saturday morning.

At about midday De Klerk and Crowie were on duty at a position on the south-eastern corner of the Nugget Street/Bree Street intersection. From there they saw two men, subsequently identified as Cecil Tsoebi and E Lincoln Bhengu, break open the window of a motor car parked on the other side of Nugget Street in the vicinity of the south-western corner of the intersection of Nugget and Bree Streets. They, the two men, then opened the door of the motor car and removed a large cardboard carton. De Klerk and Crowie also heard the warning shout of a bystander.

De Klerk inferred, quite correctly, that he had witnessed the commission F of one of the offences which he had been ordered to prevent and he formed the intention to arrest the two offenders. The latter crossed Nugget Street in an easterly direction and proceeded towards the point where De Klerk and Crowie were standing. Tsoebi was carrying the cardboard carton. In order to effect an arrest De Klerk approached the two offenders, drew G his service pistol and ordered them to stop. Bhengu lunged at De Klerk with a screwdriver, which he had in his hand. De Klerk evaded the blow and warned Bhengu two or three times with the words, "staan, of ek skiet".

Both offenders fled, Tsoebi in a northerly direction and Bhengu, ignoring De Klerk's warnings, southwards down Nugget Street. Bhengu ran either on H the pavement on the eastern side of Nugget Street or on the tarred surface of the street, close to the eastern curb. (The evidence is not consistent on this point.) He was unable to cross Nugget Street because of traffic. When Bhengu was some 20 yards from De Klerk, the latter, in attempting to arrest him, fired a shot at him from his service pistol. Thereafter De Klerk set off in pursuit of Bhengu and fired five more shots at him at various points along the line of pursuit, which was down the eastern pavement of Nugget Street to a point not far from the corner of Nugget and Jeppe Streets and from there across the intersection to a point

Corbett JA

on the southern pavement in Jeppe Street close to the south-western corner of the Nugget Street/Jeppe Street intersection. At this latter point Bhengu fell to the ground with bullet wounds in his arm, shoulder and hip. There he was arrested by De Klerk.

A After De Klerk had fired his first shot, the deceased emerged from a cafe on the eastern side of Nugget Street, near the corner of Jeppe Street, and walked northwards up the eastern pavement of Nugget Street, ie, in the direction from which Bhengu was fleeing from De Klerk and towards them. B Bhengu, with De Klerk in pursuit, passed the deceased before crossing Nugget Street to the point where he (Bhengu) eventually fell to the ground. One of the shots fired by De Klerk struck the deceased in the right groin, damaged a vein and caused him to die from loss of blood. The bullet wound was surrounded by an area of powder burn. This raised the C inference that the fatal shot was fired from a range of not more than 30 centimetres but this inference does not accord with the evidence of the eye-witnesses.

The service pistol in question had been issued to De Klerk by his employer, the South African Police Force. Before this the Force had trained De Klerk in the standards required by it for the proper use of D firearms, including, inter alia, specific requirements relating to the use thereof in city streets. De Klerk knew of the paramount requirement that a firearm may be discharged in a city street for the purpose of stopping a fugitive offender only when this can be done with safety to members of the public likely to be in and about the street. Moreover, the E Force controls the use of service pistols in the further respect that it has power to deprive any member of the use of a service pistol on the ground that he has used it irresponsibly or otherwise than in accordance with the standards required by the Force, and further to discipline members of the Force for any such improper use of a service pistol.

F It is common cause that De Klerk negligently caused the death of the deceased.

At the time of his death the deceased was a partner to a customary union, as defined in s 35 of Act 38 of 1927, with the first appellant. He was also the father of first appellant's minor daughter, the second appellant. In the Court below first appellant, acting on her own behalf and on behalf of second appellant, sued respondent, the Minister of Police, who was G cited in that capacity in terms of s 2 of the State Liability Act 20 of 1957 ("the Act") for damages for loss of support. The correctness of the amounts claimed, viz R2 711 by first appellant and RI 586 on behalf of second appellant, was not disputed. The sole defence raised at the trial was to the effect that, although it was admitted that the deceased was H killed while De Klerk was attempting to arrest a third person, it was denied that De Klerk was then acting in the course and scope of his employment as the servant of respondent. In further elaboration of this point it was pleaded (i) that at all material times De Klerk was a "peace officer" as defined in the Criminal Procedure Act 56 of 1955; (ii) that in attempting to arrest the third person De Klerk was acting lawfully under the powers conferred on him in terms of the provisions of s 22 of Act 56 of 1955; and (iii) that while so acting De Klerk was performing a duty of a personal nature which depended on the exercise of his own personal discretion in terms of s 22.

Corbett JA

The validity of this defence was the point of law which the Court a quo was asked to decide. The Court decided the point in favour of the respondent in the following terms: [*]

"On the agreed facts, De Klerk was entitled to arrest Bhengu and take the A steps which he did to effect his arrest. The acts he performed in so doing were acts of a personal nature in which he had to exercise his own discretion, and were therefore not performed by him as servant of the State, acting in his capacity and within the scope of his authority as such servant. It was while performing these acts of a personal nature that he killed Mhlongo, and it can therefore also not be said that in killing Mhlongo he acted as a servant of the State, acting in his capacity and within the scope of his authority as such servant."

B The matter of the liability of the State for delictual wrongs committed by persons in the employ of the State has a long history and I do not propose to trace it in all its detail. It will suffice if I refer merely to some of the more important milestones. The first of these is the Cape decision of Binda v Colonial Government (1887) 5 SC 284 in which it was held that C the rule of English Law that the Crown cannot, in contemplation of law, command a wrongful act to be done or be prejudiced by the acts of omission of its officers applied to the Colonial Government in relation to the wrongful acts of its officers, appointed by the Governor of the Colony under his commission from the Crown. A claimant for damages from the D Colonial Government on the ground of the wrongful seizure of certain cattle by an official, known as the Collector of House Duty, was accordingly non-suited. Both members of the Court (DE VILLIERS CJ and SMITH J) commented on the need for remedial legislation. This soon made its appearance in the form of the Crown Liabilities Act of 1888 (C). In due course similar legislation was passed in the Transvaal (Ord 51 of E 1903) and the OFS (Ord 44 of 1903). In the meanwhile there had been passed in Natal, in 1891, a Crown Suits Act, with similar intent though on a different pattern from the other legislation. After Union all this legislation was incorporated in the Crown...