MINISTER OF SAFETY AND SECURITY v MOHOFE 2007 (4) SA 215 (SCA)

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1 MINISTER OF SAFETY AND SECURITY v MOHOFE 2007 (4) SA 215 (SCA) Citation 2007 (4) SA 215 (SCA) Case No 200/2006 Court Supreme Court of Appeal Judge Howie P, Farlam JA, Nugent JA, Lewis JA and Jafta JA Heard February 23, 2007 Judgment March 23, 2007 Counsel Vas Soni SC (with him H W Sibuyi) for the appellant. Sharise Weiner SC for the respondent. Annotations Link to Case Annotations 2007 (4) SA p215 Flynote : Sleutelwoorde Police - Duties of - Duty to protect public - Confronting armed suspects in crowded areas - Risk of bystanders being shot to be weighed against duty to apprehend and against further danger to others if suspects allowed to escape - Officer in casu justified in confronting armed suspects in crowded area - No negligence - Minister not liable. Headnote : Kopnota During a crowded time of the day a police officer in plain clothes came across three armed men emerging from a shop that he suspected they had just robbed. Shouting that he was a policeman, he ordered them to stop. Two of the suspects fled while the third fired a shot at the officer that missed, and fatally wounded a bystander. The officer chased and arrested the third suspect. The deceased's mother claimed damages in a High Court for loss of support for herself and for the deceased's minor children. The trial Court found for the claimant, holding that the officer had a legal duty to protect the deceased and that he had acted in breach of that duty and had negligently caused the bystander's death by calling out to the armed suspects. The trial Court concluded that the officer should have foreseen the possibility of harm and that he should have guarded against it by not calling out. In an appeal to the Supreme Court of Appeal, the Court assumed that the officer's calling-out caused the death of the bystander. The question to be determined was whether the policeman had been negligent. Held, that the classic test for negligence requires a court to ask whether the reasonable person in the position of the defendant would have foreseen the reasonable possibility of his conduct injuring another and causing him patrimonial loss; and, if so, whether the reasonable person would have taken reasonable steps to guard against the occurrence of harm. The fact that harm was reasonably foreseeable did not necessarily mean that the defendant was required to act to prevent it occurring. (Paragraph [5] at 218G.) Held, further, that, using the objective test for negligence, a reasonable police officer in the same situation would have foreseen that alerting the suspects to his presence might have led to the suspects shooting at him and injuring or killing a bystander. (Paragraph [9] at 219F - G.) Held, further, however, that he might also have reasonably foreseen that if he called out that he was a policeman and ordered the suspects to stop, they might well have obeyed him. Another reasonably foreseeable possibility was that the suspects might have continued fleeing and have escaped arrest and would have posed a danger to the public at any stage in their flight. (Paragraphs [9] and [13] at 219G - H and 220H - 221A.) Held, further, that a reasonable police officer in the same position would have had to make a choice as to how to fulfil his duty to protect the public and apprehend criminals. To have done nothing would have been a dereliction of duty. His choice would have been made on the basis of his training and experience. (Paragraph [10] at 219I.) Held, further, that under s 205(3) of the Constitution of the Republic of South Africa, 1996, and the South African Police Service Act 68 of 1995 a police officer has a duty to protect the public.

2 The officer had owed this duty to 2007 (4) SA p216 members of the public that were around him and to those whom the suspects might have come into contact with in their attempted escape. The officer had discharged this duty by doing what he was trained to do. (Paragraphs [11] and [12] at 219J - 220C.) Held, further, that the 'gravity of the risk' (a bystander being shot) had to be weighed with the 'utility of the conduct' (apprehending at least one of the suspects). The factors traditionally taken into account when considering the precautions to be taken against a foreseeable harm are: the cost or difficulty of the precautions, the seriousness of the harm and the chances of it happening. To these should be added that the reasonable person might not guard against the risk if the alternatives posed just as much risk. (Paragraph [12] at 220D - H.) Held, furthermore, that the officer was placed in a situation where he had to act quickly to protect the public from three fleeing robbery suspects. He acted according to standard police procedures and as he had been trained to do. The consequences of the argument against the officer acting as he did meant that when police came across fleeing armed suspects they should remain silent and covertly follow the suspects until they reached a place that was not crowded. To follow this would mean that criminals would hold sway in any busy place. No court could suggest that the police should be supine in the face of criminal activity. (Paragraphs [15] and [16] at 221F - 222B.) Held, accordingly, that the officer had not acted negligently and the respondent's claim should have been dismissed. (Paragraph [17] at 222D.) Appeal allowed. Cases Considered Annotations Reported cases Cape Town Municipality v Paine 1923 AD 207: dictum at applied Crown Chickens (Pty) Ltd t/a Rocklands Poultry v Rieck 2007 (2) SA 118 (SCA): dictum in para [14] applied Herschel v Mrupe 1954 (3) SA 464 (A): dictum at 477A - C applied K v Minister of Safety and Security 2005 (6) SA 419 (CC) (2005 (9) BCLR 835): dicta in paras [18] and [19] applied Kruger v Coetzee 1966 (2) SA 428 (A): dictum at 430E - H applied Minister of Safety and Security and Another v Carmichele 2004 (3) SA 305 (SCA) (2004 (2) BCLR 133; [2003] 4 All SA 565): dictum in para [45] applied Minister of Safety and Security v Van Duivenboden 2002 (6) SA 431 (SCA) ([2002] 3 All SA 741): referred to Minister van Veiligheid en Sekuriteit v Geldenhuys 2004 (1) SA 515 (SCA) ([2003] 4 All SA 330): referred to S v Bochris Investments (Pty) Ltd and Another 1988 (1) SA 861 (A): dictum at applied S v Mini 1963 (3) SA 188 (A): dictum at 196E - F applied Sea Harvest Corporation (Pty) Ltd and Another v Duncan Dock Cold Storage (Pty) Ltd and Another 2000 (1) SA 827 (SCA) ([2000] 1 All SA 128): dicta in paras [21] and [22] applied South African Railways v Symington 1935 AD 37: dictum at 45 applied. Statutes Considered Statutes The Constitution of the Republic of South Africa, 1996, s 205(3): see Juta's Statutes of South Africa 2005/6 vol 5 at 1-21 The South African Police Service Act 68 of 1995: see Juta's Statutes of South Africa 2005/6 vol 1 at (4) SA p217

3 Case Information Appeal from a decision in the Witwatersrand Local Division (Schwartzman J). The facts appear from the judgment of Lewis JA. Vas Soni SC (with him H W Sibuyi) for the appellant. Sharise Weiner SC for the respondent. In addition to the authorities cited in the judgment of the Court, counsel for the parties referred to the following: Botha v Minister van Veiligheid en Sekuriteit 2003 (6) SA 568 (T) at Carmichele v Minister of Safety & Security (Centre for Applied Legal Studies Intervening) 2001 (4) SA 938 (CC) (2002 (1) SACR 79; 2001 (10) BCLR 995) George NO v Minister of Law and Order 1987 (4) SA 222 (SE) Govender v Minister of Safety & Security 2001 (4) SA 273 (SCA) (2001 (2) SACR 197; 2001 (11) BCLR 1197) Government of the Republic of South Africa v Basdeo and Another 1996 (1) SA 355 (A) Malahe and Others v Minister of Safety and Security and Others 1999 (1) SA 528 (SCA) Minister of Safety and Security v Ntamo and Others 2003 (1) SA 547 (SCA) Minister of Safety and Security and Another v Rudman and Another 2005 (2) SA 16 (SCA) S v Dougherty 2003 (4) SA 229 (W) Van der Spuy v Minister of Correctional Services 2004 (2) SA 463 (SE) at 474 and Van Eeden v Minister of Safety & Security (Women's Legal Centre Trust, as Amicus Curiae) 2003 (1) SA 389 (SCA) ([2002] 4 All SA 346). Cur adv vult. Postea (March 23). Judgment Lewis JA: [1] At about 16:00 on 12 March 2001, near the corner of Bree and Rissik Streets, Johannesburg, Inspector Gerson Nemengaya, a police officer in plain clothes on patrol in the area, saw three men emerge from a shop that he suspected had been robbed. Two of the men, at least, were armed. They had tucked their firearms into the waistbands of their trousers on leaving the shop. The men fled the area: he approached them, shouting that he was a policeman. He ordered them to stop. Two continued running. The third, identified later as Mr Banyana Sibeko, whom Nemengaya had seen in the shop holding a firearm, stopped and fired a shot at him. Nemengaya dived to the ground. The shot missed him. He chased after them, and about three blocks from the scene of the shooting, Nemengaya fired a warning shot into the air, ordered Sibeko to stop and, when Sibeko ignored him, shot him in the leg. Nemengaya and another police officer, with whom he was on duty, arrested Sibeko and took him back to the scene of the robbery. There they found Mr Johannes Mohofe, who had been shot, lying on the ground. He was taken to hospital, but died the same day (4) SA p218 [2] The respondent was the mother of Mohofe, and, arising out of his death, claims damages from the appellant for loss of support for herself and on behalf of the minor children of Mohofe. The issue in this appeal is whether the appellant (the State) is delictually liable for the conduct of Nemengaya, as the respondent alleges. She claims from the State on the basis that it is vicariously liable for the wrongful and negligent conduct of Nemengaya in causing the death of Mohofe. Although it was found that Mohofe had actually been shot by Sibeko when he opened fire on Nemengaya, the claim is based on the alleged negligent and wrongful conduct of Nemengaya in alerting Sibeko to the fact that he was a policeman, thus causing Sibeko to shoot into a crowd of innocent bystanders. (The respondent had originally alleged that her son had been shot by Nemengaya. The trial Court found that this was not the case, and accepted that Mohofe had been struck and killed by the shot fired by Sibeko. This finding is not in issue on appeal.)

4 [3] The trial Court (Schwartzman J in the Johannesburg High Court) found for the respondent: it held that Nemengaya owed a legal duty to protect Mohofe, that he had acted in breach of that duty (wrongfully) and had negligently caused the death of Mohofe. The State was thus held to be vicariously liable. The appeal against the decision lies with the leave of Schwartzman J. [4] In the view I take, it is not necessary to decide whether or not Nemengaya's conduct in calling out to Sibeko can properly be said to have been the cause of Mohofe's death but I shall assume that it was so. An act that causes injury to another, or death, is prima facie wrongful. i 1 I assume also that there are no other matters of policy that should operate against that principle in this case. The only issue to be determined, therefore, is whether Nemengaya's conduct was negligent. [5] The trial Court concluded that Nemengaya was guilty of negligence. The classic test for negligence set out in Kruger v Coetzee, ii 2 cited by the learned trial Judge, requires a court to ask whether the reasonable person in the position of the defendant would have foreseen the reasonable possibility of his conduct injuring another and causing him patrimonial loss; and, if so, whether the reasonable person would have taken reasonable steps to guard against the occurrence of harm. The fact that harm is reasonably foreseeable does not necessarily mean that the defendant was required to act to prevent it occurring. As Holmes JA said in Kruger v Coetzee: iii 3 'Whether a diligens paterfamilias in the position of the person concerned would take any guarding steps at all and, if so, what steps would be reasonable, must always depend upon the particular circumstances of each case.' 2007 (4) SA p219 [6] The trial Court concluded that Nemengaya was guilty of negligence because he foresaw the possibility of his conduct causing injury and thus patrimonial loss, but he failed to guard against the injury in calling out as he did. He could have guarded against the injury by not calling out. It is these findings that are open to question. [7] Nemengaya had been a police officer for some nine years before the shooting occurred. He was patrolling around Bree Street with a colleague, and was armed with his service pistol. He had seen the three men emerge from the shop with firearms. At that time his colleague was not on the scene. Nemengaya did what he said he had been trained to do as a policeman: he announced his presence and ordered the suspects to stop. He had been instructed not simply to chase after fleeing suspects, but to warn them first that he was a police officer, and order them to stop. That is standard procedure. His opinion was that in most cases suspects would then surrender. [8] Nemengaya admitted that the area where the shop had been robbed was crowded with pedestrians. People were on their way home from work. He also conceded that an armed suspect, alerted to the fact that he was a police officer, might fire at him and hit someone else. But he refused to concede that he should have run after the suspects until they reached a place where there were no bystanders and only then have shouted a warning. 'It does not work like that', he said. You cannot just 'follow him until he comes to the area where it is clean because my aim is to protect the public and to arrest the person who do wrong'. [9] The test for negligence is objective. Would the reasonable police officer in the position of Nemengaya have foreseen that if he alerted the suspects to his presence one of them might shoot at him and injure or kill a bystander in the process? It seems to me to have been an objectively reasonable possibility. But there are other possibilities that the reasonable police officer might foresee too. He might reasonably foresee that if he called out that he was a policeman and ordered the fleeing suspects to stop they might do so. And as I have said, Nemengaya's testimony, uncontradicted by other evidence, was that fleeing suspects 'must surrender' when alerted to the presence of the police. Another reasonably foreseeable

5 possibility was that the armed suspects might continue fleeing and not only escape being apprehended but also constitute a further danger to the public at any stage in their flight. If the crowds had become denser further on they might have panicked and resorted to shooting to ensure escape. [10] In the same circumstances a reasonable police officer in the position of Nemengaya would have to make a choice as to the best steps to take to fulfil the duty to protect the public and apprehend criminals. He could not stand by and do nothing. That would be in dereliction of his duty. And his choice as to the steps to be taken would inevitably be made on the basis of his training and his experience. [11] Nemengaya believed, correctly, that he had a duty to protect the 2007 (4) SA p220 public. This is a duty that flows from the Constitution: s 205(3) provides that: 'The objects of the police service are to prevent, combat and investigate crime, to maintain public order, to protect and secure the inhabitants of the Republic and their property, and to uphold and enforce the law.' The duty is imposed also under the South African Police Service Act iv 4 the preamble of which affirms that it is the duty of police officers to ensure the safety and security of all people in the country. v 5 His duty was owed both to the members of the public around him and also to those with whom the suspects might come into contact in their attempted escape. [12] Nemengaya discharged that duty by doing what he had been trained to do. There is nothing to suggest that he behaved in a manner different from the way in which the hypothetical reasonable police officer would behave in the circumstances. If the reasonable police officer would foresee the possibility that an innocent bystander might be injured or killed by an armed suspect, what steps would he take to avert this while nevertheless doing his duty? In determining whether the second test in Kruger v Coetzee has been met, one must weigh the 'gravity of the risk' (a bystander being shot) with the 'utility of his conduct vi 6 (apprehending at least one of the suspects). In Herschel v Mrupe vii 7 Schreiner JA famously said: 'No doubt there are many cases where once harm is foreseen it must be obvious to the reasonable man that he ought to take appropriate avoiding action. But the circumstances may be such that a reasonable man would foresee the possibility of harm but would nevertheless consider that the slightness of the chance that the risk would turn into actual harm, correlated with the probable lack of seriousness if it did, would require no precautionary action on his part. Apart from the cost or difficulty of taking precautions, which may be a factor to be considered by the reasonable man, there are two variables, the seriousness of the harm and the chances of its happening. If the harm would probably be serious if it happened the reasonable man would guard against it unless the chances of its happening were very slight. If, on the other hand, the harm, if it happened, would probably be trivial the reasonable man might not guard against it even if the chances of its happening were fair or substantial.' To this should be added the rider that the reasonable person might not guard against the risk if the alternatives posed just as much risk. [13] Thus when the reasonable police officer foresees the possibility that a fleeing suspect might, when confronted by a policeman, shoot at him and hit a bystander instead, he would also weigh the likelihood of this happening against the possibility that the suspects might escape, and continue to be a danger to the public if he did nothing. He would also 2007 (4) SA p221 take into account the likelihood of the suspects surrendering, even if this was not great. The risk of allowing the suspects to escape had to be weighed against all that. By shouting out that he was a policeman, and chasing after Sibeko, Nemengaya managed to apprehend him. That, at least in part, was the result he sought to achieve. [14] In determining whether the driver of a train was negligent Wessels CJ in South African

6 Railways v Symington viii 8 said that a court should take great care 'lest we stigmatise a person as guilty of culpa when in fact he did all that could be expected of him under the particular circumstances of the case. This involves a correct appreciation not only of the surrounding circumstances but also of human nature, so as to be able to judge correctly what a particular person ought or ought not to have done in the circumstances. One man may react very quickly to what he sees and takes in, whilst another man may be slower. We must consider what an ordinary reasonable man would have done. Culpa is not to be imputed to a man merely because another person would have realised more promptly and acted more quickly. Where men have to make up their minds how to act in a second or a fraction of a second, one may think this course the better whilst another might prefer that. It is undoubtedly the duty of every person to avoid an accident, but if he acts reasonably, even if by a justifiable error of judgment he does not choose the very best course to avoid the accident as events afterwards show, then he is not on that account to be held liable for culpa.' And in S v Bochris Investments (Pty) Ltd and Another ix 9 this Court cautioned against being influenced by 'the insidious subconscious influence of ex post facto knowledge' (a phrase used by Williamson JA in S v Mini). x 10 The cautionary note is repeated in Minister of Safety and Security and Another v Carmichele. xi 11 [15] Nemengaya was caught up in a situation where he had to act quickly and protect the public from three fleeing robbery suspects. He acted as he had been trained to do. It is not clear to me that he was guilty even of an error of judgment. What other action could Nemengaya have taken to stop and apprehend armed men whom he suspected of having committed a robbery? No answer is suggested by the appellant other than that he should not have alerted the suspects to his presence but should rather have chased them to a place where there were no bystanders. With hindsight it is possible that he may have avoided the death of Mohofe. But equally, he may well have been derelict in his duty in doing so, for all the fleeing suspects, at least two of whom were armed, might easily have disappeared or harmed others when fleeing. [16] Nemengaya did no more than alert the suspects to the fact that he 2007 (4) SA p222 was a policeman and call on them to stop. He acted in terms of standard police procedures that have not been demonstrated to be ineffective or inappropriate. The logical consequence of the appellant's argument, on the other hand, is that whenever police officers are confronted by armed and thus dangerous people who flee from the scene of a crime, they must remain silent and do no more than covertly chase after the suspects until they reach a place where there are no bystanders. If this were so, criminals would hold sway in any busy place. No court should be understood to suggest that police officers should be supine in the face of criminal activity. Some action was required. On the evidence it cannot be said that the reasonable police officer would have viewed the risk attendant on calling out as greater than the risk of the suspects shooting a member of the public in the immediately ensuing stage of their getaway. [17] In the circumstances Nemengaya did not act negligently. The claim should have been dismissed. [18] The appeal is upheld with costs. The order of the Court below is replaced with: 'The plaintiff's claim is dismissed with costs.' Howie P, Farlam JA, Nugent JA and Jafta JA concurred. Appellant's Attorneys: State Attorneys, Johannesburg and Bloemfontein. Respondent's Attorneys: Mqongozi Attorneys, Johannesburg; Mphafi Khang Attorneys, Bloemfontein. i Cape Town Municipality v Paine 1923 AD 207 at ; Minister of Safety and Security v Van Duivenboden 2002 (6) SA 431 (SCA) ([2002] 3 All SA 741) para [12] and Minister van Veiligheid en Sekuriteit v Geldenhuys 2004 (1) SA 515 (SCA) ([2003] 4 All SA 330) para [24] ii 1966 (2) SA 428 (A) at 430E - F

7 iii Above at 430F - H iv Act 68 of 1995 v See the discussion of these duties in K v Minister of Safety and Security 2005 (6) SA 419 (CC) (2005 (9) BCLR 835) paras [18] and [19] vi Crown Chickens (Pty) Ltd t/a Rocklands Poultry v Rieck 2007 (2) SA 118 (SCA) para [14] vii 1954 (3) SA 464 (A) at 477A - C viii 1935 AD 37 at 45 ix 1988 (1) SA 861 (A) at x 1963 (3) SA 188 (A) at 196E - F. See also Sea Harvest Corporation (Pty) Ltd and Another v Duncan Dock Cold Storage (Pty) Ltd and Another 2000 (1) SA 827 (SCA) ([2000] 1 All SA 128) paras [21] and [22] xi 2004 (3) SA 305 (SCA) (2004 (2) BCLR 133; [2003] 4 All SA 565) para [45]