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IN THE HIGH COURT OF SOUTH AFRICA                        REPORTABLE

DURBAN AND COAST LOCAL DIVISION

                                                                                                         CASE NO:  4818/03

In the matter between:

DEVINA GOVENDER                                                                                Plaintiff and

THE MINISTER OF SAFETY AND SECURITY                                    Defendant

JUDGMENT

MSIMANG, J:

On 28 August 2002 and at theDurbanresidential area of Phoenix an unfortunate and bizarre incident occurred which resulted in the shooting and killing by a member or members of the South African Police Service of a 30 year old man (the deceased).   The incident led to the institution of the present action by the plaintiff in her personal capacity and in her capacity as mother and legal guardian of her minor children against the Minister of Safety and Security (the defendant).    The allegations made in the Particulars of Claim are that a member who had fired a shot that had killed the deceased had acted wrongfully and intentionally, that, at all material times, the said member was in the employ of the defendant, that he acted within the course and scope of his duties as such, that the plaintiff and the deceased were formerly married to each other which marriage had been terminated by a decree of divorce granted by the High Court on 8 December 1999, that, during the subsistence of the said marriage, three minor children were born, that subsequent to the divorce one minor child was born to her and the deceased, that, in terms of the said decree, the deceased was under a legal duty to pay maintenance to her, that, during the lifetime of the deceased, the minor children were in need of and enjoyed material support from him and therefore that as a result of the death of the deceased she, in her aforesaid dual capacity, had suffered loss for the  compensation of which the defendant is in law liable by reason of the aforesaid wrongful conduct of his employee.

In his plea, though he admits the shooting and killing of the deceased by his employee or employees, and that, when he or they did so they acted within the course and scope of their duties as such, the defendant denies the entitlement of the plaintiff in her aforesaid capacities to receive material support from the deceased.   Regarding the shooting and killing of the deceased, the defendant pleads that, on the occasion, the deceased had abducted and held one Tashnee Govender (the hostage) against her will and at gunpoint.   The members of the South African Police Service who had been summoned to the scene had reasonably believed that the deceased posed an immediate threat or danger of serious physical harm and that the deceased had committed a crime involving the infliction or threatened infliction of serious bodily harm to the hostage, the public and to themselves.   In the circumstances the said members were entitled to use such force as was reasonably necessary, including shooting and disarming the deceased, in defence of the hostage, the public and themselves.    The defendant accordingly denies that, when shooting and killing the deceased, those members had acted wrongfully and that he was liable to compensate the plaintiff for any loss.

Those were briefly the pleadings upon which the parties came to trial in this matter.

At the commencement of the trial and at the instance of the parties, I granted an order in terms of Rule 33(4) of the Uniform Rules separating the issue of liability from the issue of quantum and ordering that the trial would proceed only on the issue of liability.

Also, pre-trial conference minutes were handed in revealing, inter alia, that certain agreements relating to issues of onus and to the documents contained in the plaintiff’s bundle of documents had been concluded.   This bundle was entered in evidence and marked Exhibit “A”, the parties having agreed that the documents contained therein would be what they purport to be and that copies thereof could  be utilised in the course of the trial.

Regarding the issues of onus, the parties also agreed that the plaintiff bears the onus of proof to establish that she was married to the deceased, that  from this union the children Yashoda, Yamuna and Nathi were born, that subsequent to her divorce from the deceased on 8 December 1999 the child Malini was born to the plaintiff and the deceased, that the plaintiff and the minor children were entitled to receive material support from the deceased and that he provided such support prior to his death and that the onus of proof lies with the defendant to justify the killing of the deceased.

The factual background to the present action (which is largely common cause) is that during his life time the deceased had been engaged, inter alia, in the tow truck business.   It would appear that the tow truck business presented a cut and thrust environment which was rife with allegations of payment of bribes to the members of the South African Police Service by owners of the tow trucks in return to business being steered  the way of those owners.   In order to get business steered his way the deceased also indulged in the practice and  paid bribes to the members of the South African Police Service.   The going rate was approximately R200,00 per single tow.   In time, however, his competitors upped the stakes and started increasing payments to those members to R500,00 per single tow, thus forcing the deceased out of business.    When he realised that his was a lost cause, he appealed for assistance to senior members of the South African Police Service.   When the appeal yielded no results a feeling of frustration set in.

It was also not well in the deceased’s married life.   In her testimony the plaintiff attributes this state of affairs to the fact that the deceased would spend most of his time at work, spending little time with his family.   This led to a breakdown of communication between the spouses and, at the end of 2001, to a divorce and the deceased’s departure from the matrimonial home.     According to the plaintiff, after leaving the matrimonial home the deceased took up residence with the hostage and the two lived as man and wife.

Not only did it rain in the deceased’s life at this stage but it poured.   There were allegations of gambling activities and the relationship with the hostage also became sour.

These were then the circumstances prevailing in the deceased’s life on 28 August 2002 and against the backdrop of which the aforesaid unfortunate and bizarre incident occurred.

At all times material hereto the hostage was a school teacher attached to the Phoenix Daleview Secondary School.   On 28 August 2002 at approximately 08h00 she was at her place of employment when the deceased abducted her at gunpoint.  He was seen pulling her across a vacant piece of land and pushing her onto a front passenger’s seat of a motor vehicle parked nearby.  Thereafter the deceased entered the vehicle on the driver’s seat, started the same and sped away.    The two were next seen by members of the South African Police Service later that morning through the upper level window of a flat described as 74 Rocklands Close, Phoenix.   At the time the deceased had his left arm around the neck of the hostage and was armed with a silver-coloured firearm in his right hand.    He was shouting at the members of the South African Police Service who were standing on the ground demanding that they should put their firearms away.   A senior officer who was present at the time gave instructions for the junior officers to comply with the demand and, indeed, the firearms were put away.     The deceased then demanded to speak to the hostage negotiators.    That is when it became clear to the officers that they had to contend with a hostage situation.   Steps were then taken to mobilise the role-players and to get them to the scene.   In the meantime attempts were made to stabilise the situation by placating the deceased.

The primary role-players in such a situation apparently comprise of a team of hostage negotiators and a tactical intervention unit.    As the term itself suggests, hostage negotiators are members of the South African Police Service who are trained to engage in negotiations with hostage takers and persons threatening to commit suicide.  A tactical intervention unit is a specialised South African Police Service unit which, with special equipment,  performs higher special duties like, for instance, the release of hostages.   Also, at the scene a Joint Operations Centre (JOC) is established, usually comprising  of senior officers and the responsibility of which would be to take important decisions during the hostage situation.

On this occasion the role-players indeed arrived at the scene at different times.   The negotiating team, comprising of Inspectors Allison and Pretorius and Superintendent Gerald Singh, were first to arrive.   An instruction was then issued that all communication with the deceased would henceforth be conducted through the team.   Superintendent Singh and Inspector Pretorius would negotiate directly with the deceased while Inspector Allison would assume the role of negotiations co-ordinator providing the line of communication between the negotiating team and the JOC.    The negotiating team took up a position on the ground alongside a short wall separating 74 Rocklands Close from a neighbouring flat.

At 13h30 a tactical intervention unit arrived and took position on the upper level of one of the flats adjacent to 74 Rocklands Close.  The unit comprised, inter alia, of what is termed a sniper team, consisting of a sniper and a spotter.   The sniper was armed with a 7.62 x 5mm calibre Sauer long rifle firearm fitted with a scope, whereas the spotter, who always works with a sniper, carried a single spotting scope.   The sniper was Inspector Emmanuel Nel and the spotter was Inspector A C Boschoff.   The commander of the unit was Mr. Michael Dick Vosloo who, at the time, held the rank of Captain in the South African Police Service.   He would communicate with the sniper team through a radio system.

The JOC was also set up comprising a scene commander, Superintendent Aarons, the hostage negotiations co-ordinator, Inspector Allison and the commander of the tactical intervention unit, Captain Vosloo.  Later that   afternoon senior officers Directors Delport and Somaroo also arrived at the scene and formed part of the JOC which had taken position inside the premises of one of the flats.  

The members of the sniper team were positioned at a vantage point and had strict instructions to react, if there was immediate danger to or a life threatening situation for the hostage.   The team would use their scopes to observe the exact position of the hostage and the deceased and would continuously relay reports to the commander.    By way of example, they reported that the deceased was armed with a silver revolver and that they had noticed him waving the same around in the direction of the negotiators and that he had also held it against the head of the hostage.

The scene was then set for the negotiations with the deceased to ensue.    As already indicated, the primary negotiators Superintendent Singh and Inspector Pretorius would negotiate directly with the deceased and the hostage negotiations co-ordinator Inspector Allison would, as from time to time, report to the JOC as to the progress and status of those negotiations. 

Clearly the reason why the deceased had staged this hostage situation was to expose what he perceived to be police corruption which, according to him, was rife in the Phoenix area.   During the negotiations he had  made several demands, threatening to harm the hostage should those demands not be met.   For instance, at some stage, he made a demand to be allowed to conduct an interview with a radio journalist.   Indeed, he came down stairs and a SABC representative was brought to him who used a recording device to record the deceased’s complaints.   However, this concession did not yield any fruit.  The negotiations continued and the deceased made more demands.   For instance, at some stage he demanded and was allowed to speak to the senior officers.   That interview also came and went with the impasse remaining in place and with no end to negotiations.  

Later in the afternoon the hostage negotiations co-ordinator reported to the JOC that his negotiators were getting worried about the situation and felt that there was a real danger that some harm would befall the hostage.   He felt that the situation had deteriorated to such an extent that a negotiated outcome was no longer feasible and recommended that other and immediate steps be taken to ensure the safe release of the hostage.   A decision was then taken to engage the tactical route and an instruction was given to the sniper to shoot the deceased on the right collarbone and the tactical teams were ordered to be on standby and to enter the premises and free the hostage.  As it was the practice, the spotter commenced with a countdown, starting at zero four and descending to zero one.   A shot would be fired when the countdown reached zero one.     On the occasion the shot which had to be taken by the sniper was apparently a difficult one.   He had to shoot out of the room which he was occupying and past the burglar bars, also past the burglar bars and a curtain in the room occupied by the deceased and the hostage.   Besides, the deceased would continually move, making it difficult for the sniper to target the collarbone.  It was for this reason that on several occasions the countdown had to be aborted and started again.  Eventually the countdown was completed and at the count of zero one the sniper fired a shot.   The tactical team then entered the flat and the deceased was found lying next to the window between the window and the bed.   He was already dead.    His firearm was found lying on the bed.   The hostage was duly rescued.

Plaintiff’s claim is based on this synopsis of facts and, after the plaintiff had testified, it became clear (and I understood Mr. Choudree, who appeared for the defendant, to concede) that she had discharged the onus which, in these proceedings, was incumbent upon her and that she had established that she had been married to the deceased, that from the said marriage the children Yoshada, Yamuna and Nathi had been born, that subsequent to her divorce from the deceased the child Malini had been born to her and the deceased, that she and the minor children were entitled to receive material support from the deceased and that he, indeed, provided such support prior to his death.  What was then left for determination by the Court is whether the killing of the deceased by a member or members of the South African Police Service was justified and, on that issue,  the defendant bears the onus.¹   

The defendant has pleaded that the actions of the police officers in shooting and killing the deceased were reasonably necessary to protect the hostage, the public and themselves from immediate threat or danger of serious physical harm emanating from the deceased’s unlawful conduct.   In other words the defendant pleaded a ground of justification which excludes unlawfulness in the conduct of his employees.   This ground is commonly referred to as “self-defence”. ² The Constitutional basis for this ground of justification was once articulated by Chaskalson P as follows :-

“[138]  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 that individual his or her right to life.   The same is true, where lethal force is used against a hostage taker who threatens the life of the hostage.   It is permissible to kill the hostage taker to save the life of the innocent hostage.   But only if the hostage is in real danger.”³    

However, a number of strict conditions must be satisfied before a person can be said to have acted in self-defence.⁴   Those that are relevant to the facts of the present case and with which I propose dealing herein are that an attack which is desired to repel by means of an act of defence must be imminent and that the defensive act must be necessary.

The sniper, Inspector Nel, testified that, at the time when he fired the shot that killed the deceased, the latter stood at the window armed with a firearm in his right hand which he had pointed at the hostage who was standing on his left just ahead of the deceased.   The version appeared to be corroborated by the evidence of one of the primary negotiators who testified that, at some stage, the deceased came up to the window with his firearm pointed at the temple of the hostage, demanded that he should be given live TV coverage and threatening that, should that demand not be met, he would shoot the hostage, twice in the head.   According to this witness, at the time, the hostage appeared petrified.   Shortly thereafter the deceased took a call from his cellphone.   After finishing the call he informed the negotiators that he would no longer negotiate.   A few seconds thereafter a shot went off and simultaneously the tactical unit penetrated the flat and the hostage was rescued.

After the defendant had closed his case, the plaintiff called one witness in rebuttal, namely, Mr. Michendra Govender.    He was a resident of one of the flats in the vicinity of the scene, to wit, 44 Rocklands Close.   On the morning of 28 August 2002 he had been informed that the deceased was holding a hostage in his flat, and, after having been advised by the police to go home, he entered his bedroom in his flat and peeped through a window from which he could observe the deceased standing at the upper level window of his flat with the hostage on his side.   The deceased was talking to the members of the South African Police Service who were on the ground.   He had observed the scene on and off throughout the day.    At some stage, at approximately 17h30, he had observed the deceased’s left forearm resting flat on the window-sill and the right elbow resting on the sill and the right hand holding onto a bar of the burglar guards.    The hostage was standing on his left hand side with her right arm over his shoulder.    They had occupied that position for approximately half an hour and seemed to the witness to be relaxing and the deceased was talking to the negotiators.   It was at the time when the deceased and the hostage were occupying this position when a shot was fired that killed the deceased.   The witness was adamant that, at the time, the deceased was not armed with a firearm, let alone pointing the same at the hostage.

There is accordingly a dispute of fact as to exactly what the deceased was doing at the time he was shot and, in my judgment, it is essential that the dispute be resolved as such resolution will, no doubt, have a bearing on the finding of this Court on the existence or otherwise of an imminent danger which has been pleaded by the defendant.

I have carefully analysed the evidence given by the sniper.   In his evidence-in-chief he testified that he had utilised his telescope to observe the movements of the deceased as well as his attitude towards the policemen and to the negotiators.   He would point his firearm at the negotiators and at the hostage.  From the context of this testimony it is clear that the incidents he was testifying about had occurred much earlier, even before the two senior officers had been dispatched to negotiate with the deceased.   The sniper then continued to testify that, at approximately 17h45 Captain Vosloo dispatched a radio message informing the sniper that negotiations had failed and instructing the sniper to go into action by shooting the deceased on his right collarbone.   At the end of his evidence-in-chief the following exchange occurred between this witness and Mr. Choudree:-

“Bear with me.  M’Lord bear with me, I just have one question to check.  Just one final question,  M’Lord and that relates to the firearm that you observed.  You said it was a .38, the firearm that you observed in the place that you were firing towards.   ---- Yes, of other words it’s a .38 Special.

.           38 Special,  What else can you tell His Lordship about that firearm that you can remember?  ---  It’s a silver handgun, Your Honour.

I think you’ve mentioned it was in the right hand of the hostage-taker.  --- Yes, Your Honour.   “

Nowhere in his evidence-in-chief did this witness make it unequivocally clear that, at the time when he fired the shot that killed the deceased, the latter had  a firearm pointed at the hostage.   At best for the defendant’s case (even that is not clear) his evidence could be given an interpretation that, at the time, the deceased had a silver hand gun in his right hand.   

Mr. Lingenfelder then cross-examined this witness and, for some reason, the tenor of his cross-examination shied away from the activities of the deceased immediately before the fatal shot was fired.

After Mr. Lingenfelder had completed his cross-examination of this witness and after the witness had left the witness box, he applied for and was granted leave to recall the witness for further cross-examination.    It was during this segment of cross-examination that Mr. Lingenfelder questioned the witness as to what had transpired at the stage when the deceased had a .38 revolver in his right hand with the hostage in front of him and the witness answered :-

“There’s a lot of times during that period which they were in that position, and when the shot was fired they were also in that position.”

Then the following exchange occurred with Mr. Lingenfelder and the Court on the one hand and the witness on the other:-

“I want you to tell us in your own words in which position.  --- Okay, the hostage-taker was sanding in front of the window.  Sorry.  Ja? --- With his right shoulder behind the wall, and the hostage on he left side of him.   The hostage was on his left side?  --- On his left side.  Ja. --- The handgun in is right hand.  They were standing at the window, and the burglar guard of the window was in front of him as well.    You saw them occupying this position a lot of times?  --- During that four hours.”

It is significant to note that even at this stage the witness had not testified that the deceased had a firearm pointed at the hostage.   It was only when he was pressed further by the Court in the following exchange that he eventually blurted the words :-

“No, but you’re not answering the question.  You know where the firearm points, you know you should you’re – you work with firearms.  When we say ‘pointing’ you know what we mean, is that right?  --- Pointing at that stage … [intervention]   Ja. --- He hold it like this, and the hostage was here.  It was pointing at – just answer the question.  Where was it .. [intervention] – It was pointing at the hostage.”

No doubt, that at the time when the fatal shot was fired the deceased had a firearm pointed at the hostage was such a crucial incident that I find it strange that it had to take so much effort to extract the same out of this witness.   This apparent lack of candour on the part of this police witness has caused me to entertain doubt as to the accuracy of his testimony as to whether the deceased had in his possession a firearm or, if he did, as to whether he had the same pointed at the hostage at the crucial time.

Not only during the testimony of this witness did it take an effort to extract a reason why the police officers had gained an impression that there was an imminent danger to the life and health of the hostage, in the affidavits made by these officers a few months after the incident, no such reason is mentioned.   Those affidavits form part of Exhibit A and, as already indicated, the parties agreed that the documents contained therein would be what they purport to be and that copies thereof could be utilised in the course of the trial.  Superintendent Singh’s affidavit was made on 4 November 2002, the one of Inspector Allison on 12 October 2002, the one of Captain Vosloo on 10 October 2002, the one of Superintendent Aarons on 17 October 2002 and the one of Inspector Nel on 9 October 2002.    In none of these affidavits do the officers aver that, at the crucial moment, the deceased had a firearm pointed at the hostage which situation led them to believe that the danger to her life was imminent, thus causing them to engage what they termed a tactical intervention.

Returning to the version narrated by the plaintiff’s witness who gave evidence in rebuttal, the plaintiff had earlier called, as a witness, Mr. David John Coles.  At the time this gentleman was employed by Midi Television (Pty) Ltd (commonly known as eTV) as a cameraman.   He was at the scene performing his duties on the occasion in question and had filmed a footage of the scene a mere seconds before the fatal shot had been fired.   He had done so by means of a video camera.   He had been filming the scene from 14h00 until around 18h00 when the fatal shot was fired.   The footage had been shown on the eTV news programme that evening and the witness had seen the programme and confirmed the correctness of the footage of the scene he had filmed.   The footage had been recorded and preserved in a video cassette.   The video was shown to the witness and to the Court and the cassette was entered in evidence marked Exhibit 1.    The video recording showed three inserts, the first one being a picture of a man and a woman standing at the upper level window, the second one being a close-up shot of the first one and the third insert showing an incident where smoke and flashes could be seen.   It is common cause that a figure depicted as a man in the picture was that of the deceased,  that the one depicted as a woman  that of the hostage and that the incident depicting smoke and flashes evidenced the firing of the fatal shot.   The man and the woman were standing at the window, the woman on the left hand side of the man.    The latter had his left elbow resting on the window sill and his left hand protruding through an open window, past the burglar bars.   He was seen to be talking to the people on the ground and to be using the left hand gesticulating.   His right forearm was seen to be resting on the window sill.   The woman is standing on the left of the man, slightly to the rear.   Though a firearm could not be seen in either of the man’s hands, it must be added that the right hand, which seemed to be resting on the window sill, was not sufficiently visible to enable one to make a positive finding on this issue.   

Though there is a discrepancy between the two pieces of evidence, it is clear that this evidence, emanating from an independent source, corroborates the version given by the witness who gave evidence for the plaintiff in rebuttal and that, comparing the merits and demerits of that evidence with that of the police officers on the issue, the former evidence should be preferred.   I must accordingly resolve the dispute of fact against the defendant and find that, at the time when the fatal shot was fired, the deceased did not have a firearm pointed at the hostage.

The question which must, however, still be determined is whether, notwithstanding the said finding on the dispute of fact, the circumstances prevailing at the crucial time were such that the police officers were justified to entertain a reasonable apprehension that a physical aggression would visit the hostage.  Clearly this is a question of fact which must be determined taking into consideration the facts and circumstances of the present case.

It is true that it is not necessary for the person threatened to wait until a threatened blow falls before he strikes in self-defence:-

“..so that if one raises his hand against you within reachable distance you may strike to prevent him.” ⁵

However, as Chaskalsen P would say, you may strike only if you are “in real danger”.⁶    Dealing with this requirement Nugent J (as he then was) once made the following remarks :-

“In the Court a quo Goldblatt J was of the view that the risk of death or serious injury must be ‘real and imminent’ in order to justify homicide, which in my view, aptly summarises the effect of the authorities and is in keeping with contemporary notions of the value to be attached to human life.   The test is, if course, an objective one.   What must be asked is whether a reasonable man in the position of the actor would have considered that there was a real risk that death or serious injury was imminent”. ⁷ 

Having carefully considered the facts of the present case as well as the circumstances surrounding the same, I am not satisfied that a reasonable man, in the position of the police officers, would have concluded that the risk of death or serious injury to the hostage on the occasion was imminent. ⁸ From those facts and circumstances one gets a distinct impression that the officers were of a view that the negotiations had been tedious, protracted and had extended over a number of hours without bearing any fruit.     The deceased was becoming more aggressive, agitated and restless.   It was then getting dark which conditions would bring about the inherent dangers of poor visibility and thus increase the risk factor of a failed rescue attempt.   The time had therefore arrived for a decisive police action to be taken to ensure the safe rescue of the hostage.   In my judgment, this is a far cry from saying that a risk of death or serious injury is imminent or real.

There is another reason why I have been driven to the conclusion that defendant’s plea of private defence cannot succeed.   One of the requirements for a successful plea based on this defence, which was set out in Attwood,⁹   is that it must appear as a reasonable possibility on the evidence that the means of self-defence which were used were the only or less dangerous means whereby the danger could have been avoided.    It is not disputed that the deceased’s brother, who himself was a member of the South African Police Service, was present at the scene and that he had offered to mediate by talking his brother into surrendering and therefore solving the impasse.   It is now evident that this offer was rejected by the police and that they could give no acceptable or valid reasons for such rejection.   At least one officer testified that he accepted that the utilisation of the deceased’s brother as a mediator could have yielded a positive result.

While being mindful of a warning once sounded by Holmes AJA (as he then was) against being an armchair critic and of his admonition for a court in these cases to “take into account the exigencies of the position”,¹⁰  it is clear to me that the brother’s offer, had it been accepted, was likely to present an alternative and a more reasonable and less dangerous solution to the impasse.   That the officers failed to take up the said offer without giving any acceptable reason for such failure, must  also,   in the words of Madlanga  AJP :-

            “..… be laid at the door of the defendant who bore the onus of proof”.¹¹

In the premises I accordingly make the following order :-

1.         It is found that the defendant is liable for all such damages which the plaintiff may prove, or which may be agreed upon between the parties;

2.         The costs are reserved pending proof or agreement on the damages.

For the Plaintiff:                     Adv. E J B Lingenfelder (instructed by Vijay Kooblal & Associates)

For the Defendant:                Adv. R G  Choudree SC (instructed by the State Attorney)

Matter heard:                         May 2005 and 11 and 12 June 2008                     

C A V

Judgment delivered: 14^th July 2008

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