dispute. Nor that Cox at the time was acting within
the course and scope of his employment.
It is also not in issue that Cox fired the shot with the intention of
wounding Justin. The only element
remaining to found a delictual cause of action against Cox, and consequently
vicarious liability on the part of the respondent, is that of wrongfulness.
[4] The respondent's case is that the action taken by Cox, although prima
facie wrongful as a violation of Justin's constitutional rights, was
justified, and therefore not wrongful, Cox having acted within
the scope and ambit of section 49 (1) of the Criminal Procedure Act 51 of 1977
('the Act'). The crux of the defence
is that Justin was involved on the particular evening in the theft of a motor
vehicle; Cox was attempting to arrest
him; Justin was, despite oral warnings and a warning shot, fleeing from Cox,
who was pursuing him, armed with a service hand-weapon and that the latter then
fired the shot, it being reasonably necessary to prevent Justin from
fleeing. This defence raises questions
relating to the interpretation of section 49 (1) by our courts and the
application of a number of constitutional principles enshrined in the Constitution
of the Republic of South Africa Act 200 of 1993 ('the Interim Constitution').
The factual
scene
[5] The factual findings made by Booysen J at the end of the trial
were not placed in issue in this appeal.
These findings can be summarised as follows :
(1) The
owner of the stolen car ('the BMW') had parked it at a shopping complex in
Tarndale Road, Durban, on the evening in question. There it was stolen.
(2) Justin and two of his friends, Julian and Kugin, of
approximately his own age, spent the first part of the evening together,
drinking beer and trying to find dagga (cannabis) to smoke. Eventually they ended up on foot at the
shopping complex where the BMW was parked.
There they met one Bilal who had apparently stolen the keys of the
BMW. The four of them got into the BMW
and drove off.
(3) Justin and his friends were aware that the car was stolen. Bilal later got out of the car, taking with
him a leather jacket and an angle grinder which were in the boot of the car.
(4) Justin was the driver of the stolen vehicle.
(5) In the meantime, the owner of the BMW had reported the theft of
his car. Cox and Sergeant Hillcoat
were on patrol duty in a police vehicle.
Hillcoat was driving. They saw
the BMW turning from Stanley Copley
Drive into Alpine Road. In doing so,
the car went off the road and struck a water meter and the wall of a block of
flats. It then proceeded along Alpine
Road. The police officers thought that
the driver of the BMW was drunk. They
switched on the siren and blue lights of the police car and gave chase. The BMW failed to stop. Cox then called the control room on the
police radio and was informed that the BMW had been stolen earlier that
evening. He was given no further
details. The chase continued at high
speed.
(6) The BMW turned into a parking area in Harbottle Street, spun
around 180 degrees, and came back straight at the police car. Cox then saw the driver and one other person
get out of the car and start running away.
Hillcoat had to stop the police vehicle. Cox alighted first and pursued the two suspects up Harbottle Road
and shouted: 'Stop! Police! Stop!'
Because the suspects ignored the warning, he fired a warning shot into a
grass bank, and then again shouted to them to stop. By then they were running in Chapel Street.
(7) When Cox alighted from the police vehicle, the two suspects were
about twenty to thirty metres from him.
The passenger ran ahead of the driver (Justin) and both were outpacing
Cox. The passenger then disappeared to
the right around the corner of a building.
Justin kept on running away and was then about fifty metres from Cox.
(8) Cox was convinced that he would not be able to catch Justin, and
fired at him, while still running. He
aimed at Justin's legs.
(9) Justin
fell down. Cox went up to him and Justin
admitted that the vehicle had been stolen in Asherville.
(10) Justin
was unarmed and, as stated earlier, a matriculant, aged 17 years and still at
school.
(11) Hillcoat
was unsuccessful in finding the second suspect. A policeman from the dog unit, together with his dog, arrived
later to try to trace the second suspect, but with no success.
Section 49
(1) of the Criminal Procedure Act :
[6] The
section reads as follows :
'49 Use of force in effecting
arrest
(1) If any person authorized
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 an attempt to
arrest him is being made, or resists such attempt and flees;
the person so authorized 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.'
[7] In the present case, the trial court found
that the action taken by Cox was reasonably necessary (in the words of section
49 (1)) to prevent Justin from escaping and thus found that Cox had acted lawfully:
'It seems to
me that at common law and in terms of Section 49(1) the Courts approach each
case on its own facts and circumstances in the general context of our society
and, of course, also the Constitution in deciding in each particular case
whether the degree and type of force applied was the minimum force possible,
reasonable, necessary and proportionate, such as to justify a reliance upon
Section 49 (1). It cannot in my view
be contested that in terms of criminal offences, two of the most prevalent and
present dangers to South African society are
the theft of motor vehicles and the closely related offence of the
hijacking of motor vehicles.
Many lives are lost in seeking to prevent the escape of motor vehicle
thieves and their apprehension. In
this case the stolen vehicle had to be followed at high speed, and in the end
the police had to avoid colliding with the vehicle which had been turned in
such a way that it bore down upon the police vehicle. In my view the force used was reasonable and necessary and proportionate
to the offence of motor vehicle theft.
The public interest involved in the use of deadly force as a last resort
to arrest a fleeing car thief relates primarily to the serious nature of this
crime, its increasing prevalence throughout this country, and the public's
interest in the apprehension, prosecution and punishment of car thieves. In the result in my view the shooting was
justified by Section 49 (1).'
[8] On behalf of the appellant it was argued that this approach is
flawed. It loses sight of the
constitutionally protected rights to which even a fleeing suspect in the
position of Justin is entitled. These
rights, according to the Interim Constitution (applicable in this case) include
a right to life (section 9); a right to
physical integrity (section 11 (1)); a
right to protection of his or her dignity (section 10); a right to be presumed innocent until
convicted by a court of law (section 25 (3) (e)) and the right to equality
before the law and to equal protection of the law (section 8 (1)). Section 49 (1) of the Act self-evidently
imposes a limitation on these rights.
The question then is whether the limitation it imposes as properly
interpreted passes the tests laid down in section 33 (1) of the Interim
Constitution. Is section 49 (1) of the
Act,
(i) reasonable; and
(ii) justifiable in an open and democratic
society based on freedom and equality;
and
(iii) not negating the essential content of
the rights in question; and
(iv) as
far as the rights to dignity and to be presumed innocent are concerned, also
necessary?
[9] That
depends in the first instance on the proper interpretation of section 49
(1). In this Court, the appellant did
not attack the constitutional validity of the section. He requested the Court to interpret it or
'read it down' so as to comply with the correct constitutional standard.
[10] With the enactment first of the Interim
Constitution and later of the Constitution and the vast changes it brought
about to the jurisitic landscape, came a need for a method of interpreting
legislation in a manner new to South African lawyers. I can do no better than to repeat and at the same time support
the new approach as set out by Langa D P in his judgment in the Constitutional
Court in Investigating Directorate
: Serious Economic Offences and
Others v Hyundai Motor Distributors (Pty) Ltd and Others : In
re Hyundai Motor Distributors (Pty) Ltd and Others v Smit N O and Others
2001 (1) SA 545 (CC) in paragraphs [21] and [22] as follows :
'Interpreting statutory provisions under the Constitution
[21] Section 39 (2) of the
Constitution [the provision in the Interim Constitution was section 35 (3)]
provides a guide to statutory interpretation under this constitutional
order. It states:
"When
interpreting any legislation, and when developing the common law or customary
law, every court, tribunal or forum must promote the spirit, purport and
objects of the Bill of Rights"
This means that all statutes must be interpreted through the prism of
the Bill of Rights. All law-making
authority must be exercised in accordance with the Constitution. The Constitution is located in a history
which involves a transition from a society based on division, injustice and
exclusion from the democratic process to one which respects the dignity of all
citizens, and includes all in the process of governance. As such, the process of interpreting the
Constitution must recognise the context in which we find ourselves and the
Constitution's goal of a society based on democratic values, social justice and
fundamental human rights. This spirit
of transition and transformation characterises the constitutional enterprise as
a whole.
[22] The purport and objects
of the Constitution find expression in s 1, which lays out the fundamental
values which the Constitution is designed to achieve. The Constitution requires that judicial officers read
legislation, where possible, in ways which give effect to its fundamental
values. Consistently with this, when
the constitutionality of legislation is in issue, they are under a duty to
examine the objects and purport of an Act and to read the provisions of the
legislation, so far as is possible, in conformity with the Constitution.'
[11] This method of interpreting statutory provisions under the
Constitution requires a court to negotiate the shoals between the Scylla of the
old-style literalism and the Charybdis of judicial law-making. This requires magistrates and judges
(a) to
examine the objects and purport of the Act or the section under consideration;
(b) to
examine the ambit and meaning of the rights protected by the Constitution;
(c) to
ascertain whether it is reasonably possible to interpret the Act or section
under consideration in such a manner that it conforms with the Constitution, ie
by protecting the rights therein protected;
(d) if
such interpretation is possible, to give effect to it, and
(e) if it
is not possible, to initiate steps leading to a declaration of constitutional
invalidity (see also De Lange v
Smuts NO and Others 1998 (3) SA 785 (CC) at para [85]; National Coalition for Gay and Lesbian
Equality and Others v Minister of Home Affairs and Others 2000 (2) SA 1
(CC) at para [23] - [24]; S v
Bhulwana; S v Gwadiso 1996 (1) SA
388 (CC) at para [28]).
[12] The objects and purport of subsections 49 (1) and
(2) of the Act are obvious. It is
fundamentally to protect the safety and security of all persons. The state has the duty to preserve the
criminal justice system's effectiveness as a deterrent to crime.
'A state has a systemic interest in insuring that suspects are
brought to justice through a trial and possible punishments. If suspects were able to flee successfully
from arrest on a more or less regular basis, the threat of punishment would be
weakened and the efficiency of the criminal justice system as a deterrent to
crime undermined.'
(Floyd R Finch
Jr, Deadly Force to Arrest : Triggering Constitutional Review, 11 (1976)
Harvard Civil Rights - Civil Liberties Law Review, 361 at 372.)
A failure by the state to preserve the
effectiveness of the criminal justice system will end in lawlessness and a loss
of the legitimacy of the state itself.
[13] As against this, the state has a duty to protect the rights of all
its citizens, including fleeing suspects.
A person fleeing from the police has, usually, not yet been convicted of
an offence. The presumption of
innocence must be respected in such a case.
But even an escaping convicted person has all the other constitutional
rights mentioned above. Neither the
fleeing suspect nor the escaping convict becomes an outlaw. [14] The
question then is how the interest of the state and the rights of the fleeing
suspect (or escaping convict) can be brought into balance. The answer lies in applying the
Constitutional test : when is a statutory provision allowing the
wounding of a fleeing suspect under certain circumstances reasonable and
justifiable in an open and democratic society based on freedom and
equality? This enquiry involves a
close scrutiny of the circumstances under which section 49 (1) of the Act
allows the wounding of a fleeing suspect.
[15] Section 49
(1) of the Act permits
' ... the use of such force as may in the circumstances be reasonably
necessary to overcome the resistance or to prevent the person concerned from
fleeing.'
[16] The threshold requirement laid down in section 49
(1) as interpreted until now is extremely low. It does not expressly qualify the nature and extent of the force
which may be used. At least, that was
how our Courts have interpreted the section and, on that basis, correctly
criticised it (see inter alia R v Britz 1949 (3) SA 293 (A) at 303 -
304; Mazeka v Minister of Justice
1956 (1) SA 312 (A) at 316 A - C; Matlou
v Makhubedu 1978 (1) SA 946 (A) at 957 C - F). In the light of the criticism against the section, viz
that it too easily allowed police officers and even members of the public to
use unspecified force simply to overcome a suspect's resistance or escape, this
Court raised the threshold by requiring, in Matlou v Makhubedu, supra,
proportionality between the degree of force used and the seriousness of the
crime of which the victim is suspected.
[17] But, so argued the appellant, even this threshold
requirement is too low and does not comply with the Constitutional standards of
reasonableness and justifiability.
Those standards, so it was submitted, at the very least require a
further factor to be taken into account, viz whether the suspect poses
an immediate threat or danger of serious physical harm to the police officer
pursuing him, or a threat of serious physical harm to others. Counsel for the appellant inter alia
relied upon the decision of the U S Supreme Court in Tennessee v Garner (471
(1985) U S 1). In that case the
Tennessee statute provided that if, after a police officer had made clear his
or her intention to arrest a criminal suspect, the latter flees or forcibly
resists, '... the officer may use all
the necessary means to effect the arrest …'
- terms not very different
from section 49 (1) of our Act. In
that case the plaintiff's son - 17 or
18 years old, unarmed and slightly built
- was apparently fleeing from the scene of a housebreaking late in the
evening. The fugitive stopped at a
chain link fence. A police officer at
the scene called out: 'Police! Halt!',
and took a few steps towards the fugitive.
The suspect then began to climb over the fence. The officer, who was convinced that if the
fugitive made it over the fence he would escape, shot at him. The bullet hit the plaintiff's son in the
back of the head with fatal consequences.
The Court held in relation to the use of deadly force :
'Where the
suspect poses no immediate threat to the officer and no threat to others, the
harm resulting from failing to apprehend him does not justify the use of deadly
force to do so ...Where the officer has probable cause to believe that the
suspect poses a threat of serious physical harm, either to the officer or to
others, it is not constitutionally unreasonable to prevent escape by using
deadly force. Thus, if the suspect
threatens the officer with a weapon or there is probable cause to believe that
he has committed a crime involving the infliction or threatened infliction of
serious physical harm, deadly force may be used if necessary to prevent escape,
and if, where feasible, some warning has been give.'
The majority held the statute in question to be invalid insofar as it
purported to give the police officer who shot the plaintiff's son the authority
to act as he did.
[18] The 'threat' or 'danger' requirement as described above is used in
other constitutional states, eg in Canada (we have been supplied with an
unreported judgment by Hawkins J in The Queen v Douglas Lines, Ontario,
13 April 1993 and section 25 (4) of the Canadian Criminal Code); in Germany (Bundesgerichtshof (1992)
5 St R 370/92, BGH St 39/1); in England
(Reference under s 48 (A) of the Criminal Law (Northern Ireland) Act 1968 (1
of 1975), [1976] 2 All ER 937 (HL) at 947 d); in the European Court of Human Rights (McCann and Others v UK [1996]
21 EHRR 97 at para 192) and the United
Nations' Basic Principles on the Use of Force and Firearms by Law Enforcement
Officials (para 9).
[19] Should this approach be adopted in determining the test for unlawfulness
in our law in respect of the interpretation of section 49 (1) of the Act? I am of the view that it must. It seems to me to represent a rational and
equitable way of balancing the interests of the state, society, the police
officers involved, and of the fugitive.
It represents, in the final instance, a proper mechanism for balancing
collective against individual interests.
It is, in my opinion, far better than simply weighing up the seriousness
of the offence against the degree of force used, because the latter does not
adequately protect the interest of the fugitive, nor does it sufficiently
define the circumstances in which police officers in the interests of society
are permitted to use force. Is it
really appropriate or equitable where an offence committed or presumably
committed is of a serious but non-violent nature, eg fraud, to allow a
police officer to use potentially lethal force, such as the firing of a shot,
at the suspect who is endeavouring to escape and who is unarmed and poses no
immediate or foreseeable physical threat to anyone? Or the converse : can it be said, that if the offence is of a
non-serious or non-violent nature, but the suspect is armed and poses a threat
to the police officer concerned or other citizens, that potentially lethal
force may not be used?
[20] Tennessee v Garner dealt with the use of deadly force in
the sense that the plaintiff's son in that case was killed. But would any other test have been logical
or valid if the son had been injured and not killed? The firing of a shot at a suspect is potentially fatal, and the
lawfulness of the act does not depend on the more or less fortuitous result
thereof. The question, whether the
suspect posed a danger of the kind described, would be, in my view, equally apposite
in the wounding of a suspect.
[21] 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 a whole. In so doing, full weight should be given to
the fact that the fugitive is obviously young, or unarmed, or of slight build, etc,
and where applicable, he could have been brought to justice in some other
way. In licensing only such force,
necessary to overcome resistance or prevent flight, as is 'reasonable', section
49 (1) implies that in certain circumstances the use of force necessary for the
objects stated will nevertheless be unreasonable. It is the requirement of reasonableness that now requires
interpretation in the light of constitutional values. Conduct unreasonable in the light of the Constitution can never
be 'reasonably necessary' to achieve a statutory purpose.
[22] Applying this broader approach, I am of the view that the shooting of
Justin was unlawful. If one were to apply the test of
proportionality between seriousness of the offence and the force used, it may
correctly be said that the theft of a motor vehicle is a serious offence and
having regard to the high incidence of this offence in our country, one that
should be combatted vigorously.
Against that, the use of a firearm to shoot at another person is also a
serious, inherently lethal, matter.
But it is when the broader approach of proportionality between the
threat posed by the fugitive and the degree and nature of the force used, is
applied, that the scale is tipped in favour of Justin. He was unarmed and Cox did not see a weapon
in his possession. He was 17 years old
and it must have been obvious to Cox, when he commenced the pursuit of the
fugitives, that they were mere youths.
There was no allegation of hijacking, assaults or other acts of physical
violence having been perpetrated by Justin or the other passengers in the car. Nor was there any threat or danger to the
police or members of the public. Under
these circumstances, what interest of society was so pressing that it justified
the violation of Justin's physical integrity?
Can it be said that in our law the protection of property (via the
criminal law system) is invariably more important than life or physical
integrity? Surely not. It has not been shown by the respondent, on
whom the onus rests, that the identity of the occupants of the stolen
vehicle could not have been established by proper investigative procedures, eg
fingerprinting of the vehicle, eye witness accounts of the theft, etc.
[23] Can section 49 (1) of the Act reasonably be interpreted to
encompass the approach discussed above?
I am of the view that it is eminently possible. The section includes the test of reasonable
necessity. That test was already given
a wider meaning by this Court in Matlou v Makhubedu, supra, viz
proportionality between the force and the crime committed. It does no violence to the section to
interpret it so that the 'threat' or 'danger' approach is included -
and in my view that should be done.
[24] The words ' … use such force as may in the circumstances be
reasonably necessary …… to prevent the person concerned from fleeing … ' in
section 49 (1) (b) of the Act must therefore generally speaking (there may be
exceptions) be interpreted so as 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 for believing
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
2 that
the suspect has committed a crime involving the infliction or threatened
infliction of serious bodily harm.
If section 49 (1) of the
Act, thus interpreted, is applied to the facts before us and for the reasons
indicated above, I am of the view that Cox acted unlawfully in shooting at and
wounding Justin.
Order :
In the result, the appeal succeeds
with costs, including the costs of two counsel,
and the matter is referred back to the court a quo for the
quantification of the damages claimed.
P J J OLIVIER JA
CONCURRING :
HEFER ACJ
SMALBERGER ADCJ
SCOTT JA
CAMERON JA
