Republic of South Africa

REPORTABLE

IN THE HIGH COURT OF SOUTH AFRICA

(CAPE OF GOOD HOPE PROVINCIAL DIVISION)

							CASE No:  8695/2001

In the matter of

1.	JAMES  SIYAYA						First Plaintiff
2.	VALERIE SIYAYA						Second Plaintiff
3.	DWIGHT COLIN SIYAYA					Third Plaintiff
4.	COLLETTE JUANITA SWARTZ				Fourth Plaintiff
5.	ILSE CAROLLIS						Fifth Plaintiff

and	

1.	THE MINISTER OF SAFETY AND SECURITY
		OF THE REPUBLIC OF SOUTH AFRICA		First Defendant 
2.	SERGEANT  CLAASSEN					Second Defendant 

JUDGMENT  DELIVERED  :  13  OCTOBER  2005

MOOSA, J:
Introduction

1.	Plaintiffs instituted, against defendants, an action arising from a shooting incident on 11 October 2000 at Hillcrest Heights, Eerste River, as a result of which one Bradley Hill (“the deceased”) was fatally wounded by one or more members of the police force.  By agreement between the parties the merits on liability and quantum were separated.  This leg of the adjudication pertains to the issue of liability.

Withdrawal of Admission
2.	Before evaluating the evidence, I need to give consideration to an amendment of the plea in terms of which defendants sought to withdraw certain admissions they made in their original plea.  Defendants’ in their plea admitted that the deceased was shot by members of the “yakkies gang”.  According to the evidence led by both defendants and plaintiffs, there was no shooting by members of the “yakkies gang”.  Defendants, in terms of Rule 28, gave plaintiffs notice of intention to amend their plea in order to withdraw the admission contained in the original plea.  There was no objection from plaintiffs.  In the circumstances, the amendment of the plea, incorporating the withdrawal of the admission, is accordingly granted. 

The Defence
3.	Defendants, in their plea, raised the defence of justification on three alternative grounds.  These are, firstly, self-defence;  secondly, necessity and thirdly, indemnity in terms of Section 49 of the Criminal Procedure Act, No 51 of 1977 (“the Act”).  (Section 49  indemnity).  In my evaluation I will approach the grounds in reverse order.  I will first discuss the defence of  justification, based on the Section 49 indemnity, followed by the other grounds, if necessary.  The parties agreed that the onus to establish justification as pleaded was on defendants and the burden to start was accordingly vested in them.

The Law
4.	Before discussing the application of the Section 49 indemnity to the facts of this case, it is necessary to put the Section in historical perspective.  The shooting incident in this matter occurred on 11 October 2000.  Section 49, at the time read as follows:
“(1) If any person authorised under this Act to arrest or to assist in arresting another, attempts to arrest such person and such person:
 (a)  resists the attempt and cannot be arrested without the use of force; or
(b)    flees when it is clear that attempt to arrest him  is being made , or resists such attempt and flees, the person so authorised may, in order to effect the arrest, use such force as may in the circumstances be reasonably necessary to overcome the resistance or to prevent the person concerned from fleeing.
(2) Where the person concerned is to be arrested for an offence referred to in Schedule 1 or is to be arrested on the ground that he is reasonably suspected of having committed such an offence, and the person authorised under this Act to arrest or to assist in arresting him cannot arrest him or prevent him from fleeing by means other than by killing him, the killing shall deemed to be justifiable homicide.”

5.	In order to enjoy the protection of Section 49(1) as set out above and as applied then, defendants have to show:
5.1	that second defendant had reasonable grounds for suspecting that the deceased had committed an offence;
5.2	that  second defendant intended to effect an arrest as he was entitled to do in terms of the Act;
5.3	that in attempting to effect such arrest in a manner prescribed by law, the deceased took flight;
5.4	that the deceased was aware, when fleeing, that an attempt was made to effect his arrest;
5.5	that the force employed by second defendant was reasonably necessary to effect his arrest.
5.6	that there were no other reasonable and effective means to arrest the deceased.

6.	The above requirements were expanded in Govender v Minister of Safety and Security 2001 (2) SACR 197 (SCA) at 206c-e, to exclude the use of a firearm or similar weapon, unless the person authorised to arrest, or assist in arresting, a fleeing suspect, has reasonable grounds to believe: 
6.1	that the suspect poses an immediate threat  of serious bodily harm to him or her, or a threat of harm to members of the public;  or 
6.2	that the suspect has committed a crime involving the infliction or threatened infliction of serious bodily harm.

7.	In expanding the requirements, the court in Govender (supra) at para 16 said that the threshold  laid down in Section 49(1) and as interpreted until then, was extremely low because it did not expressly qualify the nature and extent of the force which may be used.  The court accordingly raised the threshold and in doing so, Olivier, J authoring the judgment for the court at para 21 said the following:
“I am of the view that in giving effect to Section 49(1) of the Act, and in applying the constitutional standard of reasonableness the existing (and narrow) test of proportionality between the seriousness of the relevant offence and the force used should be expanded to include a consideration of proportionality between the nature and degree of the force used and the threat posed by the fugitive to the safety and security of the police officers, other individuals and society as whole.” 

8.	In a subsequent development the Constitutional Court in Ex parte Minister of Safety and Security:  in re S v Walters 2002 (2) SACR 105 (CC) accepted as constitutionally sound, the interpretation given to Section 49(1) by the Supreme Court of Appeal in the Govender case (supra).  However, the Constitutional Court declared Section 49(2) to be inconsistent with the Constitution and accordingly invalid.  From the date of the striking out of Section 49(2) to the date on which the amending provision was put into operation, the court held the interpretation given to Section 49(1) in the Govender case (supra) applied equally to deadly force.  

9.	The protection afforded by Section 49(1) applied both to civil and criminal liability.  In Walters (supra) the court at 143h said that all civil actions arising out of the shooting of a fugitive from arrest that were not finally disposed of when the judgment in Govender was handed down, have to be dealt with in accordance with the law as expounded in the Govender case.

10.	The judgment in Walters (supra) which declared Section 49(2) unconstitutional and confirmed the interpretation of the Supreme Court of Appeal in Govender (supra) in respect of Section 49(1) where deadly force in the form of a firearm is used, was handed down on 21 May 2002.  The judgment of Govender (supra), which expanded on the requirements for the use of deadly force in the form of a firearm, was handed down on 1 June 2001.  The amending provision relating to Section 49 came into operation on 19 July 2003.

11.	In casu the shooting incident occurred on 11 October 2000.  At the time of the incident, defendants could rely on the protection afforded by both Section 49(1) as interpreted in Govender’s case and Section 49(2) which justified killing prior to it being declared unconstitutional in the case of Walters (supra).  In order to determine the liability of defendants, I will apply the test laid down by the Supreme Court of Appeal in Govender (supra) and as approved by the Constitutional Court in Walters (supra).  Should the conduct of second defendant fail this test, the court will then apply the protection afforded by Section 49(2) which was operative and valid at the time.

The facts
12.	In terms of the Amended Plea, defendants’ indemnity for second defendant’s conduct is predicated on the protection afforded by Section 49 (1).  The Plea reads as follows:
“The second defendant’s conduct in shooting and injuring the deceased falls within the purview of Section 49(1) of the Criminal Procedure Act and the second defendant acted lawfully and the shooting is justifiable in the circumstances.”

13.	Adv Van der Schyff, who appeared for defendants, appears to have relied in the trial on the broader scope of Section 49 which included Section 49(2). However, I am going to confine myself to Section 49 (1) as pleaded and as interpreted and amplified in the Govender case (supra).  If the conduct of second defendant fails such test, I would then evaluate his conduct in terms of Section 49(2) as it applied then.

Evaluation
14.	In my view, it is not necessary to make a credibility finding in respect of the witnesses either called by defendants or plaintiff, as most of the evidence is either undisputed or common cause.  The only witness for plaintiff, Dwight, substantially corroborates the evidence of Claassen with regard to the intermittent shooting between the fleeing deceased and the pursuing Claassen on the field between Goldstein and Blue Downs Roads.  Dwight’s version that a number of policemen took cover behind police vans and fired at the deceased who was standing at the wall of 28 Goldstein Road, without any protective cover between the deceased and the firing policemen, is highly improbable.  However, the possibility that the policemen and the vans arrived at the scene described by Dwight, after the deceased was shot, cannot be ruled out.  There was evidence to that effect.  Dwight could have made a genuine mistake as to when he saw the policemen and vans at the scene.  According to the evidence, by the time they arrived on the scene the shooting had stopped.

15.	The undisputed facts are that second defendant, while patrolling with a colleague, Maarman, in the area, received a radio report of a shooting incident at 18 Acacia Road.  They hastened in that direction and on arrival at the address, members of the public pointed them in the direction of the fleeing suspects.  In pursuit of the suspects, they met police reservist Steenkamp, who had witnessed the shooting.  He joined in the pursuit.  Second defendant at this stage had reasonable grounds to suspect that the deceased had committed an offence of attempted murder at 18 Acacia Road.

16.	A member of the public directed them to 41 Goldstein Road, where second defendant and Maarman, clad in full uniform, and with drawn firearms approached the suspects who were hiding behind the dwelling.  On peering around the corner of the dwelling, second defendant noticed the deceased pointing a firearm at him.  Second defendant retreated to a position of safety, identified himself and ordered the suspect to hand over his weapon.  Second defendant, at this stage, was entitled to arrest the deceased for illegally pointing a firearm at him.

17.	Maarman then saw the deceased fleeing from the dwelling.  He identified himself as a policeman whereupon the deceased turned around and fired three shots at him, all of which missed, but which required Maarman and second defendant to take cover behind a wall at the dwelling.  The deceased laid himself open to a charge of attempted murder of at least Maarman.

18.	Second defendant then followed the deceased on foot.  Maarman followed with the police vehicle and at 29 Goldstein Road, second defendant took cover and peered around the corner when he noticed that the deceased was hiding behind a shrub.  Second defendant identified himself loudly and clearly to the deceased and ordered him to hand over his weapon and to surrender himself.  Second defendant fired a warning shot into the ground at an angle to avoid hitting the deceased.  The deceased returned more than one shot and second defendant was forced to retreat behind the wall of the particular dwelling.  At this stage the deceased was aware that an attempt was being made to arrest him, but took flight.

19.	When the shooting from the deceased stopped, second defendant saw the deceased running towards Blue Downs Road.  Second defendant gave chase.  The deceased intermittently turned sideways and fired at the pursuing policemen.  Second defendant returned a second shot, which he aimed at the legs of the deceased and ordered him to surrender.  The deceased ignored the order and continued shooting.  Second defendant then fired the third shot that felled the deceased.  The intermittent shooting between the deceased and second defendant is confirmed by plaintiff’s witness and the step-brother of the deceased, Dwight.  It is not in dispute that the deceased fired live ammunition.  At this stage it ought to have been pretty clear to the deceased that he laid himself open to serious criminal charges by firing at the pursuing policemen who were attempting to arrest him whilst he took flight.

20.	It is common cause that the deceased sustained three bullet wounds.  Defendants admitted that the three shots were fired by second defendant.  The question I must ask myself is:  were the three shots fired by second defendant reasonably necessary to affect the arrest of the deceased and was there no other reasonable and effective means to affect the arrest of the deceased?  In answering that question, I must also ask myself, in view of the fact that deadly force, namely a firearm, was used, whether the suspect posed an immediate threat of serious bodily harm to second defendant or to members of the public.

21.	The deceased was armed.  He was involved in three separate shooting incidents at three different locations.  The first was at 18 Acacia Road where he randomly and indiscriminately shot at the house.  The likelihood that he could have injured any of the occupants in the house cannot be ruled out.  The second was at 41 Goldstein Road, where he not only pointed a firearm at second defendant, but also fired three shots at Maarman when the latter ordered him to stop and surrender.  The third was on the field where the deceased and second defendant exchanged shots.  The first two locations were in a built-up residential area.  The third was on the edge of a built-up area.  The shooting by the deceased not only posed a threat of serious bodily harm to second defendant, but also to members of the public.  I agree with Adv Van der Schyff  that second defendant had sufficient cause to effect the deceased’s arrest.

Conclusion
22.	I am satisfied that on the facts of this case, second defendant complied with the necessary requirements to enjoy protection in terms of Section 49(1).  I am satisfied further, that by applying the proportionality test as set out in the Govender case, second defendant was justified in using deadly force in the form of a firearm to prevent the escape of the deceased and to effect his arrest.  This must be seen against the backdrop of the situation that prevailed in the area.  According to the evidence, gang activities were a daily occurrence.  Residents had to barricade themselves behind secured closed doors.  The police, at the time of the incident, had set up a special task force to deal with gang-related activities and the indiscriminate shooting in the area.

23.	The deceased was a member of one of the gangs operating in the area.  If the deceased had managed to escape by fleeing with the firearm, he could have posed a threat to other members of the public.  The deceased refused to heed  several warnings to surrender, even after a warning shot was fired.  Second defendant testified that the deceased intermittently fired at him on the field by turning slightly towards his right.  This is consistent with the bullet wounds which were located on the right hand side of his body.  It is also consistent with the posture described by Dr Bouwer and the police ballistic expert that the deceased was firing at second defendant as he (the deceased) turned towards his right and bent forward slightly.  

24.	In the circumstances, I am satisfied that defendants have discharged the onus of proving, on a balance of probabilities that the death of the deceased was occasioned by justifiable homicide within the purview of Section 49 (1) of the Act.  In the premises, plaintiffs’ claims are dismissed with costs.

……………………….
         E  MOOSA