JUDGMENT
IN THE HIGH COURT OF SOUTH AFRICA
(CAPE OF GOOD HOPE PROVINCIAL DIVISION)

In the matter between:

and
MINISTER OF SAFETY & SECURITY	Defendant

JUDGMENT

[1] The plaintiff's claim for damages arises out of an incident which occurred in the residential area of Stanford on the night of 16 March 2004. The first plaintiff, Ms Alida October, sues in her personal capacity, that is mother and natural guardian of three minor children for the death of her husband, Mr Joseph Johannes October, who died on 23 March 2003(?) as a result of the incident.

[2] The second plaintiff, Ms Lydia Makimetso Morolong also sues in her capacity as mother and natural guardian of Jajabo Gabriel Setlemogo(?) who was at the time of the incident a minor.

[3] The third plaintiff, Ms Sarah Petronella Arendse, sues in her capacity as mother and natural guardian of Noleen October who at the time of the incident was also a minor.

[4] The remaining plaintiffs, numbers 4-9, sue in their personal capacities as a result of injuries sustained by them in the incident. For the purposes of this judgment, Setlobogo and Noleen October will be dealt with as if they are the second and third plaintiffs respectively.

[5] The p tain tiffs claim in their particulars of claim that members of the defendant, the Minister of Law and Order, acting in the course and scope of their employment, wrongfully, unlawfully and intentionally shot at members of a crowd which caused the death of Mr October and injured the remaining plaintiffs.    In the alternative, plaintiffs claim that the members of the defendant were negligent on shooting at the crowd.

[6] The defendant initially denied that its members had caused the death and injuries as claimed and in amplification of its dental claimed that its members at all times had acted lawfully in the discharge of their duties.

[7] At the commencement of the trial the defendant amended its plea and while maintaining that its members had acted lawfully, claimed that their actions were justified on the basis that:
1.	Members of the defendant had acted out of necessity as the crowd had unlawfully threatened the lives and safety of the police by throwing stones and other dangerous objects at them and at their motor vehicles, alternatively;
2.	members of the defendant had acted in self-defence as the crowd had unlawfully threatened the lives and safety of the police by throwing stones or other dangerous objects at them and at the motor vehicle, further alternatively;
3. the plaintiffs and the deceased had voluntarily assumed the risk of being injured when making common cause with members of the public were unlawfully threatened and/or assaulted the police by throwing stones and/or other dangerous objects at them and their motor vehicles.

Background
[9] During the evening of 16 March 2004, Inspector David Kolide (indistinct) while on patrol duty with Constable reservist Riccardo Mengel in the township of Hopland, Stanford, observed a red Mazda motor vehicle being driven recklessly through the streets.   They gave chase and directed the driver of the Mazda vehicle to stop. The driver failed to do so and also disobeyed a number of stop signs, with the police in pursuit. He eventually came to a standstill in the driveway of a house, No. 1543 Compacter Street, which belonged to one Sylvia and which was run as a shebeen.

[10] (Indistinct) pulled up immediately behind the red Mazda and both he and Mengel alighted in order to effect the arrest of the driver. One of the passengers of the red Mazda vehicle, Ivan, a brother of Sylvia, got out of the vehicle and disappeared. At this stage it appeared that a crowd of onlookers had assembled in the yard at 1543. (Indistinct) attempted to arrest the driver of the motor vehicle, one Bastiaan, who had also appeared to have been under the influence of alcohol. He claimed that the crowd obstructed him while he attempted the arrest, as a result of which Bastiaan was able to get away.

[11] Mengel had at that stage disappeared amongst the crow. (Indistinct) returned to the patrol vehicle and found that the keys had been removed from ignition by somebody. He immediately called the Stanford police station over the vehicle's radio for back-up. It was common cause that a number of other police vehicles arrived at the scene in response to the back-up call. The Stanford police station was also asked to send a spare key for (indistinct) patrol van.

[12j There were various versions with regard to the behaviour of the crowd. The police witnesses contended that the crowd was unruly, aggressive and had thrown stones at them and at their motor vehicles. Most of the plaintiffs who were on the scene disputed that the crowd was aggressive and most denied that any stones were thrown at the police or at the vehicles.

[14] Two members of Neptune who testified claimed that as they drove from the scene their vehicles were stoned by members of the crowd. They fired warning shots into the ground and into the air to ward off the attack. Most of the plaintiffs on their part denied that there was any stone-throwing. Most appeared to have been fleeing the scene when shot as the injuries which they sustained were on the back of their bodies. The deceased, Mr October, appears to have been shot in the chest and died about a week later as a result of the injuries. Noleen October was shot in the head and face and lost complete sight in her feft eye.

The location of the incident

[16] House No. 1543 Compacter Street (Sylvia's house) is directly opposite house number 1575. The numbering of the houses on Sylvia's side ascends in the direction of Gansbaai while those on the opposite side descend in the direction of Stanford. At house number 1544 (next to Sylvia's house) approximately 52 shotgun pellets were observed on the inside wall of the house near the door and approximately 120 shotgun marks were observed on the outside wall near the door. There were also shotgun pellet marks on the steel frame of the door. The marks were approximately 1.9 metres from the ground. There were also shotgun pellets observed on the front top right hand side of the wall of house 1544.

The evidence
[19] Ms Alida October is the mother of two daughters and a son of which the deceased, Mr October, was the father. She was not on the scene of the incident and had heard from others that the deceased had been injured in the shooting. A report of a postmortem which had been conducted by Dr Isabella Bower on 19 June 2003 was handed in as evidence, although the pathologist was not called to testify. It was accepted by the defendant that the deceased had died as a result of the shooting incident.
[20] The postmortem report describes various injuries to the deceased, in particular, a number of shotgun wounds to the chest of the deceased. Shotgun pellets had penetrated the chest of the deceased at "the left liver lobe and the left kidney and the heart". There are also shotgun wounds on the deceased's front upper thigh.

[21] Mr Gabriel Setlebogo, the second plaintiff, was 15 years old at the time of the incident and a scholar in Standard 8. He claims that he had been visiting a friend at house 1573 Compacter Street where they had been watching television. They heard a commotion outside and went out to the yard what was taking place. He at some stage decided to cross Compacter Street to go home. While walking through the yards between house 1546 and 1547 he was shot in the back of the head and on his back. He had seen one stone thrown from the back of Sylvia's house but maintained that it had been thrown long before the shooting by Neptune had taken place. He had heard Ivan's mother shouting and the crowd had made a lot of noise near the red Mazda vehicle. It was put to him under cross-examination that most of the stones had come from the direction of the left hand side of Compacter Street rn the area near house 1573. He denied it.
[22] Noleen October, the third plaintiff, was 14 years old at the time of the incident. She testified that on the night in question she was in the company of Petra Masias and had been sent to buy a cooldrink at the house of Sylvia. She had been told by Sylvia to wait for the cooldrink. She could not recall anything further with regard to the incident or as to how she sustained the injuries. She testified that she still felt three pellets under her skull and had completely lost sight in her left eye. At the time of the incident she was a scholar in Standard 4.

[23] A report by Dr Chris Liaart who had examined Noleen on 17 March 2004 was handed in as an Exhibit. Dr Liaart was also not called as a witness and the contents of his report was not disputed by the defendant. The report records:
"Three intra-cranial pellets, diffused brain swelling
and effacement of basal systems". The report also records pellet wounds to the skull and the head.

[24] Petra Masias, a cousin of Noleen October, confirmed that she had accompanied her to buy a cooldrink at Sylvia's house. At the time of the incident she was also 14 years old. She also confirmed that Sylvia had told them to wait outside for the cooldrink. She saw a red car being chased by a police van which pulled up into the driveway of Sylvia. She saw Sylvia's brother, Ivan, get out of the vehicle. She, together with Noleen and a third person, climbed on and stood on a fridge which had laid on its side next to the wall of the house next door to that of Sylvia's. There was a lot of people at that stage in the yard of Sylvia and they did not want to be part of the crowd. They did however want to see what was going on. She saw people throwing stones at the police vehicle and had heard the police calling for reinforcements over the police radio. Other police arrived.

[25] There were many people at that stage on the scene. She saw a white motor vehicle arrive and Stanford police subsequently leave the scene. She thereafter saw people from across the road falling down where she heard shots being fired. Noleen fell down from the fridge. She initially thought that Noleen was taking cover and fell over on top of her. She then noticed that Noleen was crying and that she was full of blood. Her face was also swollen. She maintained that neither she nor Noleen threw any stones at the police or at their vehicles.
[26] Ms Trisia Elisa Constance, the fourth plaintiff, testified that she was in the company of her friend, Nicolene Arendse, the fifth plaintiff on the night of the incident. They had been in conversation in front of Arendse's house in Compacter Street when they noticed that something appeared to be happening further up the street. Out of curiousity both she and Arendse walked up the road to see what was taking place. They found a large number of people in the area of Sylvia's house. She and Arendse stood in the yard of a family member's house, number 1573 Compacter Street, across the road from Sylvia's house.

[27] There was a number of people in front of them and as they were not able to see much they moved closer towards the pavement. She saw two white cars with guns sticking out of the windows slowly drive down the street. She decided to leave the scene at this stage. As they walked past, a blue Mazda vehicle which was parked in front of the house 1573, the occupants of the white car began shooting. She and Arendse fell to the ground and crawled behind the blue vehicle. She then noticed that Arendse was bleeding and felt that she had also been injured.   She was shot with rubber bullets and sustained injuries to her left arm and left side. The bullets were subsequently removed through surgery.

[29] Nicolene Arendse, the fifth plaintiff, confirmed that she was in the company of Constance and that they went to the scene out of curiousity. She described the lighting as very poor. She saw the patrol vehicle parked in Sylvia's yard and also saw the white motor vehicle come down the road just as she and Constance had walked past a blue Mazda motor vehicle when leaving the scene.

[30] At this stage the police started shooting. She was shot on the left backside. A medical report which was handed in, indicated approximately 80 birdshot pellets on her backside. Photographs of the injuries to her backside was also handed in as evidence which depicted the size and extent of the wound. She had made a statement to the police in which she had stated that she had seen the police being stoned. In cross-examination she denied that she had said so to the police and denied that she had read her statement before signing it or that the policeman, Inspector du Toit who had taken it down, had read it to her prior to it being commissioned.

[31] Mr Jonathan Hendricks, the seventh plaintiff, testified that on the night of the incident he had been drinking at a shebeen in the company of Mr January, the sixth plaintiff. The shebeen fs situated in a street next to Compacter Street. After having drunk a number of beers he, together with January, left and took a short-cut through the yard between houses 1545 and 1546 Compacter Street in order to get to their house which was situated in Dreyer Street, on the other side of Compacter Street.

[32] When in Compacter Street he saw the police vehicles and sard to January that he anticipated trouble and that they should get away as soon as possible. As they walked past the blue Mazda vehicle he heard shots being fired and felt a sudden burning sensation. At that stage he was on the pavement in front of the house 1573. He was shot on his left thigh from behind. He had seen guns sticking out of the window of the white vehicles driven by the Neptune squad. After being shot and while fleeing the scene, he saw the deceased Mr October lying near house 1573. He thereafter went to seek assistance for January who had also been shot.

[33] In a statement to the police after the incident he stated that he had seen half a brick being thrown at the police. In his testimony he denied having said so to the police. He also denied that the statement had been read out to him by the police officer who wrote it down or that he had been given the opportunity of reading it. In the statement he afso stated that he did not want an investigation into the shooting as he had been injured as a result of his own curiousity.

[34] Mr Daniel January, the sixth plaintiff, confirmed the version of Hendricks, the seventh plaintiff, in whose company he was. He was shot in his right thigh. He denied that there were any warning shots fired by the police. He had also made a statement to the police in which he stated that the crowd was unruly and that people had thrown stones. He denied having said so or that he was given the chance to read his statement or that it was read back to him by the policeman who had written it down.

[35] Mr Henry Jerome Cornelius Steenberg, the eighth plaintiff, testified that on the night in question he had been drinking at the house of a police reservist, Hendricks. Hendricks had been called out to the scene at Sylvia's house. He and his brother, after finishing a few more beers, walked over to the scene where they stood directly in front of 1544 Compacter Street. At the scene the reservist Hendricks walked across to him and warned him that there was going to be trouble and that he should leave. Steenberg claimed that as he and his brother were about to walk away two white cars came down the road and the occupants (police) shot at the crowd. He immediately began running away and was shot on the left flank of his back and side. He had also made a statement to the police approximately a week after the incident in which he stated that the crowd was unruly and that he saw them throwing stones. He denied that he himself had thrown any stones and also maintained that he was on the scene out of curiousity.
[36] Mr Dennis Benjamin, the ninth plaintiff, testified that he was in the company of a friend and that they had gone to a shebeen where they had bought a crate of beer. While walking back they saw the blue lights of a police van which was chasing a red Mazda vehicle around the streets of the township. He also saw that there was a half-naked person holding onto the bonnet of the vehicle and screaming as it was being pursued by the police. He saw the vehicle come to a standstill at 1543 (Sylvia's house) and the attempt by Chachabana{?) to arrest the driver Bastiaan.

[37] Bastiaan had grabbed the handcuffs from Chachabana and threw it away. He had also seen the reservist Mengel disappear into the crowd. At this stage he stood right across the house 1543 and heard Chachabana radio for reinforcements. He saw police officer Du Toit arrive at the scene. He also saw a stone being thrown at Chachabana's vehicle from behind Sylvia's house,

[38] In response Fourie fired a shot into the air. While standing there he heard from a friend who was also part of the crowd that Mengel had been given a "lekker klap of twee". He noticed a second stone coming from the direction of Sylvia's house and Fourie once again shot into the air. He also saw police reservist Hendricks arrive at the scene. He had earlier seen reservist Hendricks drinking at his (Hendricks') house. He saw a third stone being flung from the direction of Sylvia's house at the police vehicle and Fourie fired a third warning shot into the air. He testified that he heard members of the crowd laughing at and teasing the Neptune police. As the Neptune squad left he bent forward to pick up the crate of beer which was on the ground in front of him. While doing so he was shot on the right hand. He subsequently received medical attention at the Hermanus hospital. He denied that the crowd had toyi-toyed or that they had been aggressive. He also denied that there was any other stone throwing other than the three stones he had seen flung. It was also put to him under cross-examination that most of the stones were thrown from the vicinity of the yard at 1573. Benjamin, like Setlebogo, disputed this submission.

[39] On behalf of the defendant, Inspector Charl Coetzee who was stationed at the Hermanus police station, testified that he had received a radio report about the incident while out on patrol duty with Inspector Rust. It took them approximately 20 minutes to get to the scene where they found an unruly crowd that was singing and shouting. He parked the patrol vehicle on the Gansbaai side of Sylvia's house, approximately three houses away, and he and Rust walked down to where Chachabana was standing in the yard of Sylvia's house. There were not stones thrown while he was present at the scene.

[40] Approximately 20 minutes later when Chachabana left, he and Rust returned to their vehicle to leave. As soon as they got into their vehicle the crowd began stoning the vehicle. The vehicle at that stage got stuck in ioose sand. He leaned out of the window and shot three warning shots into the ground. This caused the crowd to disperse and they drove away. He did not think it necessary to shoot directly into the crowd, more especially since he had a 3mm handgun.

(41] While on the scene they had been approached by a reservist, August, of the Neptune police squad who had warned them that the police had shouted in Xhosa that as soon as the police drove away from the scene their vehicles would be stoned. When they drove away there was no crowd in front of them and they were able to drive away without any hindrance. He maintained that when they had arrived at the scene everything was under control and that there was no stoning at that stage.   He claimed that there was no direct threat to their lives on the scene and that no further reinforcements were called in as there was no perception that any of the officers being in danger. The only damage to his vehicle was a mark on the windscreen and that he did not report any other damage at the police station. He did not see the incident in which the Neptune squad fired at the crowd or the stoning of Neptune.

[42] Chachabana described the background of the incident. He testified that when he realised that the keys of the motor vehicle had been removed the crowd had already become unruly. They began stoning him. He had to seek cover behind the patrol vehicle and he believed "I was going to die on that day". The crowd had also toyi-toyed He requested one of the elder persons in the crowd to calm them down but they would not listen to him and accused him of being a 'sell-out". At some stage he drew his pistol and fired a warning shot into the air. The crowd immediately stopped but thereafter continued with their stoning. The light was not very good and stones had come from the darker areas.

[43]   Fourie and Du Toit were the first to arrive in response to his request for reinforcements.   Shortly before reservist
Hendricks returned from the police station with the spare key he found the missing key laying in the sand near the patrol van. The Neptune squad was also on the scene at that stage. He reversed his vehicle out of Sylvia's yard and drove off in the direction of Gansbaai. As he drove off the crowd banged on the patrol vehicle with their hands and stoned it. He testified that there was lots of damage to the patrol vehicle but under cross-examination conceded that none of it had been recorded in the records of the police station.

[44] He described the curiousity of the crowd like being drawn to a bioscope scene. He maintained that it was not necessary for him to fire any further shots, despite the behaviour of the crowd. He explained that when the Neptune squad arrived, Captain Stroebel, the Neptune commander, was the most senior officer of the scene and therefore in charge of all of the police officers. Stroebel came up to him and informed him that as soon as he obtained the keys for the vehicle he should immediately leave the scene. As he left he did not hear any shooting but only the sound of stones and the banging on the patrol van. He did not see the shooting by Neptune and neither did he hear any shots being fired by them.
[45] Constable Rtccardo Mengel was on patrol duty with Chachabane. He was armed with a 9mm pistol and confirmed Chachabane's account with regard to the background of the incident. He claimed that when they pulled up behind the red Mazda at 1543 and as they got out, the crowd was unruly and began stoning them. He was surrounded by about 20 people and was pushed down Compacter Street. He had his pistol in his hand but he did not find it necessary to use it. The crowd shouted threats at him and were very aggressive. Except for a slight injury to his finger he returned unharmed to the scene where Chachabane had remained. Upon Chachabane finding the key they (eft the scene and as they drove off there were stones thrown at the patrol vehicles from all sides. He did not hear any shooting.

[46] Under cross-examination he maintained that it was not necessary for him to have fired any warning shots on the scene or while driving off. He agreed with Chachabane's description of the crowd's curiousity as looking at "a bioscope". He claimed that not everybody in the crowd had thrown stones.

[47] Inspector Johannes Jacobus du Toit was stationed at the Stanford police station.     He was  at home when  he received a call to come out to the scene. He picked Inspector Fourie up at this house on the way. They were in private clothes and only he was armed with a Z88 pistol. At the scene they parked near house 1546 in Compacter Street and walked up to Sylvia's house where Chachabane was standing. The crowd was unruly and Chachabane tried to calm them but to no avail. Stones were thrown at them and they sought cover behind the patrol van. When Chachabane eventually found the key and drove off, the crowd banged on the vehicle and stoned it. He and Fourie waited until Chachabane had safely left the scene whereafter they walked down Compacter Street to the vehicle. They got in, made a U-turn and drove off in the direction of Stanford. There was no threat to them as they walked to their vehicle, nor as they drove away and, in particular, no stones were thrown at them. As they drove away they heard shooting from the Neptune vehicles, they did not turn back to investigate.

[48] At the police station he was responsible for taking down the statements from a number of the plaintiffs. He had made photocopies of the statements and commissioned some of them in the absence of the deponents. He claimed that he did so because of the pressure he had worked under and the urgency of submitting copies of the statements to his headquarters. He maintained, however, that he had read the statements back to each of the deponents and that they had confirmed the versions which were set out in the statements. He conceded though that one of the deponents had not initialled any of the corrections that he had made on the statements. He claimed that a number of the people on the scene were drunk and that he knew that the police were not welcome in the area when people were in such a state. He claimed that there was no reason for him to use his gun or to fire a warning shot. There was no damage to the Mazda police vehicle in which he and Fourie had travelled in.

[49] He contradicted his written statement in which he stated that he had seen Neptune shooting at the crowd. He ascribed the contradiction to his loss of memory as the incident had occurred almost four years since the trial. He recalled that when he and Fourie left, the road was not blocked and that they could leave the scene without any hindrance.

;50] Inspector Widerow{?) Colin Fourie testified that when he and Du Toit stood with Chachabane at the scene the crowd was aggressive and threw stones at them. They took cover behind the van but it was not necessary for any of the police to use their firearms on the crowds. The stones had come from the direction of the Stanford side of Compacter Street. He confirmed that after Chachabane had "safefy left the scene" he and Du Toit had walked to their vehicles and drove off without any hindrance. They did not see the shooting by Neptune but had heard shots from some distance from the scene. He was aware of the threats that the crowd had made and that they would stone the police upon leaving. He confirmed that some of the crowd appeared to be curious.

[51] He also recalls seeing the deceased in an injured state later at the police station. Both he and Du Toit claim that although they arrived first on the scene, they had not considered removing Chachabane from the scene as they feared that the crowd would torch the patrol van if it was left behind. He conceded though that they coufd very well have left the scene at that stage with Chachabane. He denied that he had fired three warning shots into the air, as claimed by Benjamin.
[52] Captain Petrus Johannes Stroebel was in charge of the Neptune operation squad. Neptune had been set up as a special operation task force to deal with the fight against poaching of perlemoen and other fish on the coastal areas. On the evening of 16 March he was at the operations base in Hermanus when he received a call from the Hermanus police station to assist at the scene in Stanford. He had nine members under his command, five of whom were on duty and four were off duty with him at the base. The four off-duty members accompanied him in a Volkswagen Golf whilst the five on-duty members rode in a white Mazda vehicle.

[53] He testified that they were all armed with shotguns and some in the Mazda had 9mm handguns. They reported in at the Stanford police station at approximately 22h00 where they were informed about the keys which had been removed from the patrol vehicle and the stoning by the crowd. They were directed to the scene at 1543 where they parked directly in front of the houses 1575 and 1576. There was approximately 150 people at that stage on the scene, which subsequently grew to about 300 people. At the scene he spoke to Chachabane who informed him that he was waiting for the spare key for the patrol vehicle. The crowd began toyi-toying and he returned to his vehicle.

[54] Reservist August, one of the Neptune squad, came up to him and informed him that he had heard the crowd in Xhosa saying that they would stone the police as soon as they drove away from the scene. He had also heard the crowd shout abuse at the Neptune squad and demanded that they leave the scene. He was scared for his life as he was not familiar with the people nor the area. As Chachabane reversed out of the driveway and drove off, the crowd began stoning the patrol vehicfe. He fired one shot with rubber bullets into the ground as a warning. He aimed in the direction of house 1543. As a result of the shot the crowd briefly stopped throwing stones and dispersed. As Chachabane drove away the crowd continued stoning the patrol van. He fired another shot of rubber bullets into the ground in the direction of Gansbaai. The crowd again stopped stoning. He got into his vehicle and drove off in the direction of Stanford.

[55] At this stage his vehicle was stoned from all directions. He immediately stopped the vehicle and through the window fired two further warning shots of rubber bullets, but this time directed into the air.   At this stage the rest of the Neptune squad also began firing. As he fired he immediately drove off in the direction of the Stanford police station. He emphatically denied that he had fired with the intention of killing or injuring anybody and believed that his actions in firing the warning shots were lawful in the circumstances.

[56] Under cross-examination he denied that he had ordered any of the other Neptune members to fire at the crowd or to fire any warning shots. He said that he had left it to their individual discretion as to the use of their weapons. He also claimed that it would not have been appropriate for him to have given any instructions to them about when and how to use their weapons. He conceded that the plaintiffs who were injured in the back could have been shot "by accident" as they would have been fleeing. He maintained that none of the shots he fired was directed at the crowd and that he was therefore not responsible for any of the injuries to any of the plaintiffs. He also claimed that the damage to the Neptune vehicle was insignificant and therefore did not warrant it being recorded in the records of the police station. He confirmed the contents of the occurrence book at the Stanford police station that Officer Friesler had fired three shots of rubber bullets and two shots of birdshot (donshael).

[57] Officer August had fired five rubber bullets and five birdshot (donshael). Officer du Toit (of the Neptune squad) had fired three rubber bullets and three birdshots (donshael). Officer Le Fleur had fired six rubber bullets, Officer Biggs fired five rubber bullets, Officer Julies fired six rubber bulfets. Le Fleur, Biggs and he were in the same vehicle. (I have referred to the "donshael" simply as birdshot as no description of the cafibre of the shotgun ammunition used was given in evidence).

[58] Stroebel maintained throughout his testimony that it was not necessary for him to have shot directly at the crowd and that warning shots were sufficient and in fact had the desired effect of dispersing the crowd. He also claimed that no stones were thrown at his vehicle from the front and that it was clear to drive away. He claimed, however, that although he could have driven away, he stopped and fired because of the stoning from all the other sides.

[60] While on the scene and prior to Chachabane leaving, he claimed that the crowd was aggressive and had thrown stones at the police. However, he did not think it necessary at that stage to fire any shots at the crowd. When Chachabane left the crowd stoned his vehicle. Stroebel was the first to fire a warning shot into the air in the direction of Gansbaai. He claimed that Stroebel had also fired a second warning shot into the air and again in the direction of Gansbaai. He claimed "op daai stadium het ons nog nie iets wonders gedoen nie" and as they pulled way stones rained from all sides on them. He shot five rubber bullets and five birdshot into the air and ground. He shot in the direction of Gansbaai. He was seated at the left rear hand side of the vehicle which was behind that of StroebeE's vehicle. The crowd did not disperse as a result of his first shot he therefore fired the remaining five shotgun bullets. He claimed that the other Neptune members in the vehicle also fired shots into the ground and into the air.

[61] Under cross-examination he claimed that Stroebel did not see the stoning while they were on the scene prior to Chachabane leaving because of StroebeTs poor eyesight. He was not sure in what order he had fired the rubber bullets and the birdshot. He appeared to have done so interchangeably. He denied emphatically that he had shot directly into the crowd and maintained that it was not necessary for him to have done so. He claimed that if somebody shot directly at the crowd it would have been in disobedience of Stroebel's instructions to fire only warning shots into the ground and the air. He claimed that the plaintiffs had falsely made claims that they had been shot and suggested that they had incurred the injuries by running into walls and that Mrs Arendse, the fifth plaintiff, could have tripped and fallen onto a stone which caused the injury to her backside.   He explained that Neptune was not very popular in the area because of their methods of operation in containing poaching.

The defences of necessity and self-defence

[63]  Self-defence is defined as:
"Noodweer is aanwesig wanneer die dader horn op redelike wyse teen iemand anders se onregmatige of dreigende, onregmatige handeling rig, om sy eie of Yi ander geregverdige regserkende belange te beskerm."

"In terms of these authorities the requirements to be satisfied before a plea of self-defence will be upheld may be summarised as follows:
There must have been an unlawful attack or threatened attack and the victim must have had reasonable grounds for believing that he was in physical danger. The means of defence must have been commensurate with the danger and the means of defence must not have been adopted when the threatened injury could have been avoided in some or other reasonable way".

"It must be directed against the attacker. If Y attacks X, X cannot direct his act in private defence against Z. However, an attack by X may, in certain circumstances, be justified by necessity".

(ii)    how threatening the danger is to life or limb;
(hi) the nature of the instrument, if any, the attackers use in waging the unlawful attack;

The particular facts of each case will determine which of these and other factors are relevant".

"Self-defence is recognised by all legal systems. Where a choice has to be made between the lives of two or more people, the life of the innocent is given preference over the life of the aggressor, this is consistent with section 33(1). To deny the innocent person the right to act in self-defence would deny to the individual his or her rights to life. The same is true where lethal force is used against the hostage-taker who threatens the life of the hostage. It is permissible to kill a hostage-taker to safe the life of the innocent hostage but only if the hostage is in real danger.

"Self-defence is treated in our law as a species of private defence. It is not necessary for the purposes of this judgment to determine the limits of private defence. Until now our law has allowed killings in defence of life but has also allowed killings in defence of property or other legitimate interested circumstances where it is reasonable and necessary to do so".

[72]  The authors Neethling Potgieter and Visser define the
defence of necessity as:
"Nood toestand is aanwesig wanneer die dader deur oormag in so 'n posisie geplaas word dat hy sy geregverdige belange of die van ander slegs kan beveilig deur 'n redelike aantasting van die reg of die goed van 'n andere." Dit is Deliktereg, b 93-94.
The following guidelines are given with regard to the
determination as to whether a situation of necessity
exists or not:
3.	The question is whether an emergency exists in reality is either caused through human or animal or other natural cause; and
4.	whether an emergency exists must be objectively determined.

(N) in reference to necessity states:

"The very objectivity of the test however demands that when the Court comes to decide whether there was a necessity to act in self-defence it must place itself in the position of the person claiming to have acted in self-defence and consider all the surrounding factors operating on his mind and at the time he acted. The Court must be careful to avoid the role of an armchair critic, wise after the event, weighing the matter in the secluded security of the courtroom.

[75] The Court accepted the version of the police and found that the police were entitled to resort to the use of live ammunition to protect their lives. The appellant's son, who was part of the crowd, was injured. The Court found that the actions of the police was reasonable and justified insofar as a sudden decision had to be made as to how to respond to the shooting from members of the crowd by returning fire.

The defence of consent

Literally interpreted, the maxim is applicable only to cases where a person has consented to suffer something which would otherwise be an intentional wrong, e.g. consent to undergo a medical operation or consent to the publication of a defamatory statement. But maxim is used in the wider sense and is applied to cases where a person has consented to run the risk of unintentional harm which would otherwise be actionable or attributable to the negligence of the person who caused it".

"It must be clearly shown that the risk of injury was known but it was realised and it was voluntarily undertaken. Knowledge, appreciation and consent, these are the essential elements but knowledge does not invariably imply appreciation and both together are not necessarily equivalent to consent".

Assessment of the evidence

[81] Although most of the plaintiffs eschewed any knowledge about the aggressive behaviour of the crowd or that they were loud in taunting, I am satisfied on a totality of all the evidence that the version of the various police witnesses in this regard is more probable as they, with a greater measure of consistency and plausibility, described the behaviour of the crowd. It appears though that some members of the police witnesses may have exaggerated the behaviour of the crowd but that does not detract from their overall description of the conduct of the crowd. I am mindful that Coetzee, Du Toit, Fourie and Stroebel did not understand Xhosa which was used by part of the crowd when singing and toyi-toying and merely assumed that they were aggressive by virtue of such behaviour.
[82] Most of the plaintiffs who were on the scene, except for Benjamin, Setlebogo and the witness Petrus Masias (the cousin of Noleen October) maintained that there was no stone-throwing at all despite some of them having deposed to incidents of stoning in their statements to the police. Benjamin in particular was an impressive witness who was both articulate and appeared to have had a clear recollection of the overall incident than most of the witnesses. MasEas for her part had no direct interest in the outcome of the proceedings save for supporting her cousin Noleen.

[84] Du Toit, the policeman concerned, described the circumstances in the police station at the time at which the statements were taken. He was under tremendous pressure and he had not properly commissioned some of the statements. The version of the plaintiffs that they had not been given the opportunity of reading through their statements or that Du Toit himself had not read rt back to them cannot simply be dismissed. More so when it appears that one of them states in the statement that he desired no further police investigation despite being injured.

[85] Nonetheless, I am satisfied that on all the evidence that some members of the crowd did in fact and at various instances during the course of the incident throw stones at the police and at their vehicles. The intensity of the stone-throwing appears to have differed from time to time. This may explain why some of the police witnesses contradicted one another about when stones were thrown. In this regard Coetzee testified that while he was on the scene there was no stone-throwing at all. It was only when he left that there was stone-throwing and he was forced to fire three shots into the ground in order to disperse the crowd. So too was Stroebel emphatic that while he was on the scene there was no stones thrown prior to Chachabane driving off. Their versions in this respect does not accord with that of the other police witnesses.

[86] It is common cause that the shooting of the plaintiffs and the deceased was not as a result of the shot fired by Chachabane or those fired by Coetzee. It is necessary to bear in mind that the area in which the incident took place was poorly lit and that it would have been dark in most of the yards in Compacter Street. The street lights and that from the houses appears to have afforded very poor lighting. It is also apparent that the area in which the entire incident took place was not very large and that the police would have at all times been in close proximity to the crowd.

[87] A part of the crowd that had been drawn to the scene of the incident that Sunday night appears to have done so out of sheer curiousity and merely to observe what was taking place outside the shebeen at Sylvia's house. No doubt, the car chase by the police with its flashing blue lights in a relatively small township would have attracted the attention and the curiousity of a number of people. Chachabane himself described the scene as people drawn to "a bioscope". The unfolding drama however took the tragic turn in which a member of the community tost his life and a number of others were injured, one of whom has lost her sight in one eye and still has shotgun pellets in her head. It is also apparent that some members of the crowd appeared to have been under the influence of alcohol as described by one of the police witnesses, as also the plaintiffs themselves who admitted to having been drinking that night. The incident also occurred in close proximity to a number of shebeens.

[88] It is not exactly clear why the crowd had become aggressive towards Chachabane while he attempted to effect the arrest of Bastiaan. It is not a matter in which people had assembled for a particular reason or protest. It appears though that the attempt to arrest Bastiaan had triggered the excitement which developed into the aggressive behaviour by some members of the public towards the police. Chachabane described the aggression and stoning by members of the crowd and that he had been fearful of his life and thought that he was "going to die".

[89] However, despite harbouring such fear, he did not find it necessary to use his firearm to directly ward off any attack by members of the crowd. At some stage he did fire one warning shot into the air which appears to have had the desired effect of dispersing the crowd. None of the other poficemen, in particular Du Toit, Fourie and Coetzee who were also in close proximity to Chachabane, found it necessary to take any direct action against the crowd. In fact Du Toit, who was armed, did not even deem it necessary to remove his gun from its holster. Mengal for his part, although having been pushed around by the crowd, also did not deem it necessary to fire any shots either directly at the crowd or to fire any warning shots. When leaving the scene Chachabane testified that his vehicle had been stoned and members of the crowd had banged on it. Even at that stage he did not deem it necessary to have fired any warning shots to have enabled them to leave the scene. So too for Mengal.

[90] Du Toit and Fourie testified that they saw Chachabane leave the scene "safely" after which they walked through the crowd to their vehicle which was parked further down in Compacter Street. They got into their vehicle, made a U-turn and drove away in the direction of the Stanford police station. They were not stoned. Only at a distance of approximately 50 metres and near the stop street did they hear shots being fired by the Neptune squad.   Even at that stage they did not think it necessary to return to the scene to provide any assistance to Neptune.

[91j It is necessary to examine more closely the circumstances under which the shooting took place by the Neptune squad. August testified that as he understood Xhosa he heard the crowd saying in Xhosa that they would stone the police upon them driving away from the scene. He conveyed this warning to both his commanding officer Stroebel and some of the other police on the scene. It is clear that Chachabane and the Neptune squad (and all the other police) knew prior to leaving the scene that the crowd had threatened to stone their vehicles upon their departure. In response to this warning Stroebel, who was the most senior officer on the scene, instructed Chachabane to immediately leave the scene upon him retrieving the keys. Stroebel had also informed the rest of the Neptune squad about the warning from August. He maintained that he had instructed the Neptune squad merely to protect themselves as they left the scene. He denies emphatically that he gave them an instruction to fire any warning shots.
[92]  The defendant in its reply to the plaintiffs' request for further particulars for trial, specifically states:
"An instruction was issued to shoot in defence of the members' lives and protection of police vehicles".
This assertion is, however, not supported by the evidence of Stroebel. It appears from the testimony of Benjamin and August that when Neptune arrived on the scene they were taunted and laughed at by members of the crowd. Stroebel claimed that members of the crowd swore at them and demanded that they leave the scene. Both Stroebel and August testified that Neptune was not very popular amongst the people in the fishing villages. August testified that members of the fishing communities disliked Neptune because of the method of their operation and that they (Neptune) were regarded as a threat to the livelihood of the fishing communities. Stroebel testified that Neptune had previously been involved in other shootings in the fishing villages. It appears that Neptune had a poor reputation in these communities and were not very popular. With the benefit of hindsight I find it rather difficult to understand why Neptune was used in crowd control given this reputation.
[93] With regard to the actual shooting of the plaintiffs and the deceased, both Stroebel and August disavowed any responsibility therefor. In fact they emphatically denied that the warning shots which they had fired were directed at the crowd. Stroebel testified that he initially fired two warning shots, one in the direction of house 1543 into the ground and the second warning shot into the ground in the direction of Gansbaai. The other two warning shots were directed into the air. Stroebel was only armed with rubber bullets. He was aiso emphatic that it was not necessary for him to direct shots at any member of the crowd and that it sufficed merely to fire warning shots into the ground and into the air.

[94] August for his part testified that all six shots that he had fired was directed either into the ground or into the air. Likewise, he maintained that it was not necessary for him to have fired directly at the crowd to ward off the attack. Both Stroebel and August explained that they had fired because of the stoning by the crowd and because they believed that their lives were in imminent danger. However, despite this fear of their lives being in danger, they did not deem it necessary to fire directly at their attackers with their shotguns, either with the use of rubber bullets or birdshot.
[95] The defendant called none of the other Neptune policemen who had fired their shotguns as they drove away from the scene, this notwithstanding that the policemen were apparently available to testify. It was simply deemed not necessary by the defendant to call any further witnesses. In the absence of the evidence by the other witnesses it is difficult for the Court to discern how it came about that the plaintiffs were injured and that the deceased was directly shot, given the versions by both Stroebel and August .

[96] With regard to the situation of the deceased there is no evidence before the Court as to exactly where he was at the time at which he was shot or what he was doing. All that the Court is able to assume is that he was part of the crowd at which the members of Neptune had shot at. He was shot in the chest and would therefore had been facing them as they drove by. As none of the policemen in the vehicle in which Stroebel were armed with birdshot but only rubber bullets, none of them would have been responsible for the shooting of the deceased. August denied any responsibility for shooting directly at the crowd and therefore disavowed any responsibility for shooting the deceased.
[97] One of the other policemen in the vehicle in which August was travelling must therefore have shot directly at October. The exact circumstances under which this person or persons shot is not known except for that described by Stroebel and August when they fired. Noleen October had been standing on the fridge next to house 1544 together with two others. Likewise there is no evidence of any of the policemen as to how it came about that she was shot. The injuries she sustained could only have occurred as a result of a shot being fired from the vehicle in which August was travelling. Although Noleen had stood elevated from the ground there is no direct evidence that she was injured while any of the policemen had fired a warning shot. None of the other policemen in the Mazda vehicle in which August rode had been called to testify with regard to this aspect.

[98] No expert evidence was given as to the trajectory of the shots fired by the policemen as warning shots. The defendant, having given notice that it intended calling an expert, failed to do so.

[100] It had also been put to both Setlebogo and Benjamin in cross-examination that the evidence of the defendant would be that most of the stoning had come from the direction of yard 1573. However, these submissions were not supported by the evidence of either August or Stroebel.

[101] Before proceeding further it is necessary to comment on the testimony of both Stroebel and August. Stroebel was the captain in charge of all the other police during the incident. At the time of testifying he had already retired from the police force.   In his testimony he displayed an aloofness to the incident and eschewed any responsibility for the actions of the men over whom he was in charge of. His denial of the instruction to shoot appears to be less than credible and that he had simply left it to each of the policemen to decide for themselves what action to take under the circumstances. He certainly did not impress as a witness. He took no responsibility for the injuries which were sustained to any of the plaintiffs and the deceased. I am mindful though that when Stroebel testified he had just recovered from a heart attack and he did not understandably wish to incur any stress. However, there was nothing in his demeanour in evidence that demonstrated a sense of responsibility by him for the shooting by the members of his squad.

[102]August was a particularly poor witness. His version in some respects was absolutely implausible and, like Stroebel, he also took no responsibility for what had taken place on the night in question. His ridiculous explanation as to the possible cause of the injuries to the plaintiffs was also an indication of the almost flippant attitude with which he treated the seriousness and the consequences of the shooting.

[106] In applying the defences of necessity and self-defence, the Court has to consider the requirements referred to earlier:
1.	

I have already referred to the decisions of the Constitutional Court which emphasises the foundational rights of life and dignity. The defendant carries the burden of justifying the actions of its members in circumstances where a life has been taken and where others are seriously injured, such as Noleen and Mrs Arendse.

[107] In conclusion the Court finds that the defendant has failed to satisfy on a balance of probability that it was justified in the shooting which caused the death of Mr October and the injuries to each of the other plaintiffs, either on the basis of necessity or self-defence or that of consent.

[108] I accordingly make the following order:
1.	The defendant is liable for the damages suffered by the plaintiffs.
2.	The defendant is liable for the costs incurred by the plaintiffs in proving the merits of their claim.

SALDANHA. AJ