Sambo v Milns
Jurisdiction | South Africa |
Judge | Margo J |
Judgment Date | 14 July 1972 |
Court | Transvaal Provincial Division |
Citation | 1973 (4) SA 312 (T) |
G Margo, J.:
On the morning of Sunday, 3rd November, 1968, the plaintiff, a Bantu labourer, then aged approximately 21 years, was a passenger in a bus travelling from Komatipoort to Hectorspruit. The defendant, a European farmer of the Komatipoort district, then aged approximately 62 years, drove after the bus in his van and forced it to H a halt by pulling up in front of it. Much of what happened thereafter is in dispute, but it is common cause that outside the bus, while the plaintiff was running from the defendant, the defendant fired at him with a 0,303 rifle. The plaintiff was hit in the left thigh, and a section of the femur was splintered, with accompanying damage to the femoral artery and surrounding tissues. The left leg was subsequently amputated just below the hip.
Margo J
In this action the plaintiff claims damages for assault. His claim, as increased by amendment, is for a total of R22 846,95.
In his plea, as amplified by amendment, the defendant admits the shooting, but raised the following defences (all of which are in issue):
A The defendant knew or alternatively had reasonable grounds for believing that the plaintiff was guilty of an offence defined in the First Schedule to the Criminal Procedure Act, 56 of 1955.
The defendant was entitled to arrest the plaintiff in terms of sec. 24 of the said Act.
B It was reasonably necessary to use force to arrest the plaintiff.
The force used was reasonable in the circumstances.
Alternatively:
C In terms of sec. 34 of the said Act the defendant was called upon by a police officer, Warrant Officer J. M. F. Janse van Vuuren, to assist in the arrest of the plaintiff, which arrest the police officer was lawfully competent to effect, the plaintiff having been suspected of committing an offence.
It was reasonably necessary to use force in order to arrest the plaintiff and so carry out the said instruction.
D The force used was reasonable in the circumstances.
Further alternatively:
The defendant knew or alternatively had reasonable grounds for believing that the previous evening the plaintiff had committed an offence defined in the First Schedule to the said Act.
E The defendant was accordingly empowered by the said Act to arrest the plaintiff or to provide assistance in the arrest of the plaintiff.
F On Sunday, 3rd November, 1968, the defendant attempted to arrest the plaintiff.
The plaintiff fled from and/or offered resistance to arrest.
The plaintiff could not be arrested otherwise than by the shooting.
G The defendant's actions were accordingly lawful in terms of sec. 37 of the aforesaid Act.
Alternatively or 'cumulatively' to the aforegoing:
The defendant did not assault the plaintiff deliberately in that he did not aim at the plaintiff and the shot struck the plaintiff by accident.
H The defendant's plea also puts in issue the plaintiff's allegations of damages.
The defendant's pleadings are in Afrikaans, as was much of his evidence, but this judgment is in English because at the end of the case he intimated through his counsel that that was his preference. It matters not to the plaintiff, whose language is Zulu or Swazi, which of the official languages is used.
On the merits, the issues are:
Margo J
whether the defendant had reasonable grounds to suspect the plaintiff of having committed an offence mentioned in the First Schedule to the Criminal Procedure Act, 56 of 1955 (see sec. 24 (1) (c) of that Act);
A whether the defendant was acting in pursuance of a request by the police to arrest the plaintiff or to assist the police in arresting him;
whether the defendant made any proper attempt to arrest the plaintiff;
B whether the plaintiff fled from or offered resistance to arrest;
whether the shooting was reasonably necessary in order to arrest the plaintiff;
whether the defendant's intention was not to shoot directly at the plaintiff, and whether the shot struck the plaintiff by accident.
C On the first issue, it is common cause that on Saturday night, 2nd November, 1968, the plaintiff was visiting his uncle and aunt (sometimes referred to in the evidence as his parents) at the Bantu compound on the defendant's farm, where they resided. The plaintiff was then employed and resident on a neighbouring farm. During the evening some difference D arose between the plaintiff and Philemon (also known as Induna), an employee of the defendant, in the course of which Philemon sustained a knife wound on his chest. Philemon was called as a witness for the defendant. His version was that the plaintiff stabbed him hard and intentionally. The plaintiff's version was that Philemon threatened him with a knife, and that in the course of a struggle to disarm him, the E blade of the knife was forced backwards and came into contact with Philemon's chest. There is some support for the plaintiff's version in the medical evidence of a District Surgeon, Dr. F. A. Balzun, which was admitted in this case by agreement, that the wound was superficial and did not even require to be stitched, and that a hard stabbing blow would F have caused a very serious wound. Philemon's evidence is also suspect because of what he was recorded as having said when testifying as the complainant in an abortive prosecution of the plaintiff in the magistrate's court. According to the record in that case, which was admitted by agreement in this case as being correct, Philemon testified G that the plaintiff had stabbed very hard, that the wound had penetrated his chest to a depth of about 2 inches, and that he (Philemon) had actually measured the depth of the wound by inserting a length of wood into it. In this case Philemon denied having given such evidence previously, but the agreement as to the correctness of the record reflects on his reliability as a witness.
H It appears that on the night of 2nd November Philemon created the impression that the wound was a serious one, and the defendant was summoned to the compound. By the time he arrived the plaintiff had gone. The defendant had meanwhile sent for the police, and Warrant Officer van Vuuren came to the compound. Philemon was lying on the ground, under a blanket, and Warrant Officer van Vuuren removed him to the District Surgeon. Philemon was able to walk unaided to the police vehicle, but that was not taken as any proof that his injury was not serious.
Margo J
Warrant Officer van Vuuren, who was called as a witness for the defendant, testified that before leaving the defendant's compound he was given the impression by some of the Bantu there that they were afraid of the plaintiff and that they thought it possible that he would return A later that night. Because of that possibility, Warrant Officer van Vuuren requested the defendant to arrest the plaintiff if he should return to the defendant's farm. Warrant Officer van Vuuren also told the defendant that the alleged attack on Philemon was a First Schedule offence, that the defendant as a private citizen therefore had powers of arrest, and that if, during the arrest, the defendant's life were B endangered, or the plaintiff were to attempt to escape from custody, the defendant would be entitled to use a fire-arm. Warrant Officer van Vuuren's evidence was that he did not request the defendant to do the work of the police by going out to find and arrest the plaintiff. Nor did he explain to the defendant how to effect an arrest.
C The offence which Warrant Officer van Vuuren had in mind as having been committed by the plaintiff was assault with intent to do grievous bodily harm, but that is not one of the offences listed in the First Schedule. However, what is listed is assault in which a dangerous wound is inflicted, and also an attempt to commit any of the offences listed.
D Now, the defendant and Warrant Officer van Vuuren had been told that the plaintiff had stabbed Philemon in the chest with a knife; they had seen Philemon lying on the ground under a blanket, apparently seriously injured; although it was dark, they had seen a wound on Philemon's chest, which had bled. I do not think that it was for them to probe that wound to see if it was serious. The correct thing to do was to take E Philemon to a doctor, and that was done. In these circumstances it seems to me that both the defendant and Warrant Officer van Vuuren had reasonable grounds for suspecting that the plaintiff had assaulted Philemon, and had inflicted, or at least had attempted to inflict, a wound dangerous to life, that being an offence listed in the First F Schedule. The fact that neither of them had any or any clear conception of the specific contents of the First Schedule would not affect that conclusion.
It follows, in my view, that the defendant was entitled in terms of sec. 24 (1) (c) of the Criminal Procedure Act, to arrest the plaintiff.
G...
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2011 index
...and Company (Pty) Ltd S v Zurich 2010 (1) SACR 171 (SCA) ........................................................... 384Sambo v Milns 1973 (4) SA 312 (T) ............................................................ 270Sasol III (Edms) Bpk v Minister van Wet en Orde 1991 (3) SA 766 (T) ...........
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S v Barnard
...SA 293 (A); R v Koning 1953 (3) SA 220 (T); R v Labuschagne 1960 (1) SA 632 (A); R v Van Heerden 1958 (3) SA 150 (T); Sambo v Milns 1973 (4) SA 312 (T); S v Purcell-Gilpin 1971 (3) SA 548 (RA); S v Nell 1967 (4) SA 489 (SWA) H ; S v Scholtz 1974 (1) SA 120 (W); R v Mathlau 1958 (1) SA 350 (......
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Macu v Du Toit en 'n Ander
...220 (T) A op 224H; R v Labuschagne 1960 (1) SA 632 (A) op 639H - 640A; R v Metelerkamp 1959 (4) SA 102 (OK) op 113A - D; Sambo v Milns 1973 (4) SA 312 (T) op 317A - 319H; S v Prigge 1979 (2) PH H167 P L Avenant namens die respondente het na art 49 (1) (b) van Wet 51 van 1977 verwys. Cur adv......
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Motswana v MEC for Safety and Security
...to Minister van Polisie v Chetty 1977 (2) SA 885 (A): dictum at 897A applied R v Britz 1949 (3) SA 293 (A): referred to Sambo v Milns 1973 (4) SA 312 (T): referred Wiesner v Molomo 1983 (3) SA 151 (A): referred to. Legislation cited Statutes E The Criminal Procedure Act 51 of 1977, s 49(2):......
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S v Barnard
...SA 293 (A); R v Koning 1953 (3) SA 220 (T); R v Labuschagne 1960 (1) SA 632 (A); R v Van Heerden 1958 (3) SA 150 (T); Sambo v Milns 1973 (4) SA 312 (T); S v Purcell-Gilpin 1971 (3) SA 548 (RA); S v Nell 1967 (4) SA 489 (SWA) H ; S v Scholtz 1974 (1) SA 120 (W); R v Mathlau 1958 (1) SA 350 (......
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Macu v Du Toit en 'n Ander
...220 (T) A op 224H; R v Labuschagne 1960 (1) SA 632 (A) op 639H - 640A; R v Metelerkamp 1959 (4) SA 102 (OK) op 113A - D; Sambo v Milns 1973 (4) SA 312 (T) op 317A - 319H; S v Prigge 1979 (2) PH H167 P L Avenant namens die respondente het na art 49 (1) (b) van Wet 51 van 1977 verwys. Cur adv......
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Motswana v MEC for Safety and Security
...to Minister van Polisie v Chetty 1977 (2) SA 885 (A): dictum at 897A applied R v Britz 1949 (3) SA 293 (A): referred to Sambo v Milns 1973 (4) SA 312 (T): referred Wiesner v Molomo 1983 (3) SA 151 (A): referred to. Legislation cited Statutes E The Criminal Procedure Act 51 of 1977, s 49(2):......
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Matlou v Makhubedu
...of Justice, 1956 (1) SA op bl. 315, 316; R. v Britz, 1949 (3) SA op bl. 299; R. v Van Heerden, 1958 (3) SA op 152B - C; Sambo v Milns, 1973 (4) SA 312; Tola v Securitas of South D Africa (Pty.) Ltd. en 'n Ander, 1974 (1) SA op bl. 118A ens.; Jooste, N.O. v Minister of Police and Another, 19......
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2011 index
...and Company (Pty) Ltd S v Zurich 2010 (1) SACR 171 (SCA) ........................................................... 384Sambo v Milns 1973 (4) SA 312 (T) ............................................................ 270Sasol III (Edms) Bpk v Minister van Wet en Orde 1991 (3) SA 766 (T) ...........
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An analysis of the wording, interpretation and development of the provisions dealing with the use of lethal force in effecting an arrest in South African criminal procedure
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