S v Nel and Another

JurisdictionSouth Africa
JudgeEksteen J and McCreath AJ
Judgment Date02 May 1980
Citation1980 (4) SA 28 (E)
Hearing Date18 April 1980
CourtEastern Cape Division

Eksteen J:

This is an appeal against the conviction of the two appellants by a regional magistrate on a charge of attempted murder.

H From the evidence led at the trial it appears that the appellants are young constables in the South African Police force stationed at Tylden, near Queenstown. The first appellant is alleged to have been 21 years old, although his age is given on the charge sheet as 23 and the second appellant was 20 years old. The second appellant says that the he had been in the Police Force for some three years prior to the trial and that the first appellant was his senior - so he had presumably been in the force for a longer period of time.

On the evening of Sunday, 11 February 1979, the first appellant suggested

Eksteen J

to the second appellant and to another young constable called Smith, that they conduct an "impromptu road block" along the main road leading from A Transkei to Queenstown. Smith was only 19 years old at the time, fresh from the Police College, and he had only been appointed to the Tylden Police Station some three days earlier. Despite the fact that none of the three were in uniform but were all clad in civilian clothes, they decided to conduct this "road block", and second appellant says that the sergeant at the Tylden Police Station was aware of their intention. The two B appellants armed themselves with their service revolvers and each of them also took a R1 rifle with them. Smith, however, only had his revolver with him.

They say that they took a blue flashing light on a stand with them, and that, when they got to the spot where they intended conducting this "road C block", they put this blue light in the middle of the tarred road on the centre line and parked their police van alongside the road with its headlights facing on to the road and at right-angles to it. The procedure they say that they followed that night was to switch on the blue flashing light as well as the headlights of the police van as soon as they saw the lights of an approaching car, and then to stand on the road surface and D signal to the car with torches to stop or to draw off the road. They say that they stopped some 40 or 50 cars in this way that night.

Shortly before midnight they saw a car approaching from the direction of Transkei. The first appellant says he switched on the headlights of the police van and also the blue flashing light when the car was some ½ to E ¾km from them, and that he then took up his position in the middle of the road on the white centre line. Second appellant he says stood on his left hand side in the middle of that lane, and Constable Smith stood in the middle of the lane in which the approaching car was travelling. This car, first appellant says, approached at a reasonably high speed. Second appellant says it came at "quite a fair speed". Both say that it did not F appear to slow down as it approached them, and so the first appellant told Smith to get out of its way. This Smith says he did when the car was a mere 60 metres away from him.

The car, they say, sped past them and first and second appellants immediately swung round and fired at it with their R1 rifles. First G appellant fired two shots at the car and the second appellant one. Thereafter he says his rifle jammed. The car, first appellant says, could not have been more than 50 paces from them when he fired the first shot, and it came to a standstill some 150 to 200 paces from them.

This motor car belonged to one Steinhabel, who was one of the complainants. It appears that he and his partner, Theron, had been on H holiday in Transkei and were on their way back to Johannesburg where they lived. Steinhabel says that they had left Mazeppa Bay that afternoon with their fishing rods strapped to the roof of their car, and shortly before midnight they were travelling along the tarred road from Cofimvaba to Queenstown. He was driving, he says, and when he was some 20 to 25 km from Queenstown he saw a blue flashing light about ½ km ahead of him. He says he was travelling at about 80 km per hour and as he approached the libht he slowed down as he thought there might have been an accident. As he got closer to the light he saw that it was flashing

Eksteen J

from the right hand side of the road, and on getting up to it he noticed a vehicle which he took to be a police van and some people in civilian clothes standing near it. He says that the flashing blue light was on the A van. He denies that the light was standing in the middle of the road or that there were any people standing in the road or signalling with torches. In fact he says that he noticed nothing to indicate that he should stop, and so he proceeded on his way. After he had gone some 100 yards further he says he heard a loud explosion and his car's rear window B shattered. He then realized that a shot had been fired at them and he stopped immediately. Another shot he says struck the front door beside which he was sitting.

Steinhabel says he was very shocked and on getting out of the car he began shouting at the appellants. They drove up in the police van within the scope of some two minutes or so, and asked him why he had driven through a C road block, whereupon he denied that there had been any road block at all.

Steinhabel's partner, Theron, who was also in the car at the time, says that he had been reclining in the passenger's seat next to the driver and trying to get some sleep. When Steinhabel remarked on the blue light ahead D of them, and began slowing down, he says he looked up and noticed the light on the right hand side of the road. He says he also saw one or two people dressed in civilian clothing, in front of the van, and, after they had passed them he put his head back again on the seat rest. The next moment he was startled by a loud explosion. He looked round and says he saw a large hole in the rear window which seemed to him to be more or less E in line with where his...

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41 practice notes
  • Ex parte Minister of Safety and Security and Others: In re S v Walters and Another
    • South Africa
    • Invalid date
    ...S v Mhlungu and Others 1995 (3) SA 867 (CC) (1995 (2) SACR 277; 1995 (7) BCLR 793): dictum in para [59] A applied S v Nel and Another 1980 (4) SA 28 (E): referred S v Walters and Another 2001 (2) SACR 471 (Tk) (2001 (10) BCLR 1088): criticised and order not confirmed Shabalala v Attorney-Ge......
  • Ex parte Minister of Safety and Security and Others: In re S v Walters
    • South Africa
    • Invalid date
    ...F S v Mhlungu and Others 1995 (2) SACR 277 (CC) (1995 (3) SA 867; 1995 (7) BCLR 793): dictum in para [59] applied S v Nel and Another 1980 (4) SA 28 (E): referred S v Walters and Another 2001 (2) SACR 471 (Tk) (2001 (10) BCLR 1088): criticised and order not confirmed Shabalala v Attorney-Ge......
  • De Koker v Minister of Safety and Security
    • South Africa
    • Invalid date
    ...of Safety and Security and Another 2009 (2) SACR 271 (SCA) (2009 (5) SA 94; [2009] 3 All SA 323): referred to C S v Nel and Another 1980 (4) SA 28 (E): referred Zealand v Minister of Justice and Constitutional Development and Another 2008 (2) SACR 1 (CC) (2008 (4) SA 458): referred to. Cana......
  • Ex parte Minister of Safety and Security and Others: In re S v Walters
    • South Africa
    • Constitutional Court
    • 21 May 2002
    ...R v Metelerkamp 1959 (4) SA 102 (E); R v Labuschagne 1960 (1) SA 632 (A); Matlou v Makhubedu 1978 (1) SA 946 (A); S v Nel and Another 1980 (4) SA 28 (E); Wiesner v Molomo 1983 (3) SA 151 (A); Macu v Du Toit en 'n Ander 1983 (4) SA 629 (A); S v Martinus 1990 (2) SACR 568 (A); S v Martin 2001......
  • Request a trial to view additional results
40 cases
  • Ex parte Minister of Safety and Security and Others: In re S v Walters and Another
    • South Africa
    • Invalid date
    ...S v Mhlungu and Others 1995 (3) SA 867 (CC) (1995 (2) SACR 277; 1995 (7) BCLR 793): dictum in para [59] A applied S v Nel and Another 1980 (4) SA 28 (E): referred S v Walters and Another 2001 (2) SACR 471 (Tk) (2001 (10) BCLR 1088): criticised and order not confirmed Shabalala v Attorney-Ge......
  • Ex parte Minister of Safety and Security and Others: In re S v Walters
    • South Africa
    • Invalid date
    ...F S v Mhlungu and Others 1995 (2) SACR 277 (CC) (1995 (3) SA 867; 1995 (7) BCLR 793): dictum in para [59] applied S v Nel and Another 1980 (4) SA 28 (E): referred S v Walters and Another 2001 (2) SACR 471 (Tk) (2001 (10) BCLR 1088): criticised and order not confirmed Shabalala v Attorney-Ge......
  • De Koker v Minister of Safety and Security
    • South Africa
    • Invalid date
    ...of Safety and Security and Another 2009 (2) SACR 271 (SCA) (2009 (5) SA 94; [2009] 3 All SA 323): referred to C S v Nel and Another 1980 (4) SA 28 (E): referred Zealand v Minister of Justice and Constitutional Development and Another 2008 (2) SACR 1 (CC) (2008 (4) SA 458): referred to. Cana......
  • Ex parte Minister of Safety and Security and Others: In re S v Walters
    • South Africa
    • Constitutional Court
    • 21 May 2002
    ...R v Metelerkamp 1959 (4) SA 102 (E); R v Labuschagne 1960 (1) SA 632 (A); Matlou v Makhubedu 1978 (1) SA 946 (A); S v Nel and Another 1980 (4) SA 28 (E); Wiesner v Molomo 1983 (3) SA 151 (A); Macu v Du Toit en 'n Ander 1983 (4) SA 629 (A); S v Martinus 1990 (2) SACR 568 (A); S v Martin 2001......
  • Request a trial to view additional results
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