THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

Case number: 514/2008

In the matter between:

DOLORA PETERSEN in her capacity as
mother and natural guardian of

JUSTIN LEROY PETERSEN

APPELLANT

and

THE MINISTER OF SAFETY & SECURITY

RESPONDENT

Neutral citation:
Petersen v Minister of Safety & Security (514/2008)
[2009] ZASCA 88 (10 September 2009)

CORAM:

Brand, Heher, Snyders JJA et  Hurt, Tshiqi AJJA

HEARD:

28 August 2009

DELIVERED:
10 September 2009

SUMMARY:
Delictual claim against the respondent for injuries
sustained by the appellant's minor son through gunshot
fired by police – finding that police action justified
because shot had been fired in circumstances of
necessity upheld on appeal.

ORDER

On appeal from:
High Court Cape Town (Goso AJ with Dlodlo J
concurring, sitting as a court of appeal from the
Magistrates' Court)
1.
The appeal is dismissed with costs.

JUDGMENT

BRAND JA (Heher, Snyders JJA et Hurt, Tshiqi AJJA concurring)

[1] On 19 July 2002 and at Gansbaai near Hermanus in the Western
Cape, the appellant's minor son, Justin Petersen ('Justin') sustained gunshot
wounds in his right leg. The appellant alleged that the shots had been fired by
a policeman acting in the course and scope of his employment as a servant of
the respondent. Although disputed at an earlier stage in the proceedings, the
correctness of the allegation is accepted by the respondent on appeal.
Departing from this premise, the appellant instituted action against the
respondent in the Hermanus Magistrates' Court for the damages that Justin
had suffered as a result of his injuries. The respondent raised the defence of
justification in the form of self-defence, alternatively necessity. Pursuant to an
agreement between the parties, the trial proceeded on the question of liability
only while issues pertaining to quantum stood over for later determination. In
the event a plea of necessity was upheld by the trial court, which led to the
dismissal of the appellant's claim with costs. Her appeal against that judgment
to the Cape High Court (Dlodlo J and Goso AJ) was unsuccessful. The further
appeal to this court is with the leave of the court a quo.

[2] The issues on appeal will best be understood in the light of the
background facts. In the trial court the matter was heard together with the
case of one Agenbag who claimed damages from the respondent on the basis
of an alleged wrongful arrest which occurred during the same incident on 19
July 2002. In answer to the respondent's case, the appellant therefore relied,
not only on the evidence of Justin, but also on the evidence presented in the
matter of Agenbag. For the sake of convenience I shall refer to all witnesses,
apart from the policemen who testified on behalf of the respondent, as 'the
defence witnesses'.

[3] As to what happened during the fateful incident, the police witnesses
contradicted one another on various matters of detail. What they agreed upon
in broad outline, however, may be simply summarised. On 19 July 2002 the
police attempted to seize at least 20 bags of illegally harvested abalone or
perlemoen in Blompark, a township near Gansbaai, ill-famed for perlemoen
poaching. There were seven or eight officers, members of Operation Neptune,
a task team formed specifically to stamp out the poaching of perlemoen which
had become a threatened species. When the police arrived on the scene they
found a Nissan 4 x 4 bakkie with a trailer. Openly exposed on the back of the
bakkie and the trailer were at least 20 transparent bags containing shelled
perlemoen. The police were surprised at finding such a large quantity of this
much sought after commodity.

[4] Shortly after the arrival of the police, Agenbag appeared on the scene
together with his friend, one Crause. At the same time a crowd started
gathering. It grew to some 200 people. Crause then asked the crowd in
Afrikaans whether they were again going to allow 'die boere' (ie the police) to
take their perlemoen away from them – or something to that effect.
Immediately following upon this incitement by Crause, the crowd began to
stone the police, inter alia, striking an officer on the chest and damaging
police vehicles. In an attempt to ward off the attack, the police fired rubber
bullets from their shotguns. This had little effect on the crowd and the police
were forced to retreat to the stoep of a house. While this was happening,
members of the crowd took advantage of the situation to remove some bags

of perlemoen from the scene. When the police ran out of rubber bullets, they
started shooting into the ground near the crowd with sharp point ammunition
from their 9mm pistols. According to one of the policemen, he also fired two
shots of sharp point ammunition at a member of the crowd who aimed a
firearm at the police.

[5] Despite all this, the crowd was not deterred. They simply ran for cover
when volleys were fired and then returned to continue stoning the police. This
lasted for some time until Crause, who had left the scene, returned and
ordered the crowd to stop. The stoning thereupon ceased briefly. This gave
the police the opportunity to get into their vehicles and to flee from the scene.
As they fled, the crowd continued to stone the police vehicles. The police
regrouped at the entrance to Blompark where they waited for support from the
police station at Hermanus. When the reinforcements arrived they went back
into Blompark in a police armoured vehicle – known as a Casspir. Upon their
return apparently only one bag of perlemoen had not been taken by the
crowd. They arrested some persons, including Agenbag, who were believed
to have been involved in the incident.

[6] On appeal much store was set by the appellant in the numerous
contradictions between the police witnesses on matters of detail such as, for
example, whether there were 50 or 20 bags of perlemoen; whether there were
three or four police vehicles; whether there were seven or eight policemen;
and so on and so forth. The conclusion the appellant asked this court to draw
from all this is that, in the light of these contradictions, the version of the police
witnesses could not be accepted. But, as I see it, such conclusion would
amount to a non sequitur. As was pointed out by Nicholas J in S v Oosthuizen
1982 (3) SA 571 (T) at 576B-D:
'Where the [contradicting] statements are made by different persons, the
contradiction in itself proves only that one of them is erroneous: it does not prove
which one. It follows that the mere fact of the contradiction does not support any
conclusion as to the credibility of either person. It acquires probative value only if the
contradicting witness is believed in preference to the first witness, that is, if the error
of the first witness is established.

"It is not the contradiction, but the truth of contradicting assertion as opposed
to the first one, that constitutes the probative end."
(Wigmore [On Evidence Vol III] at 653.)'
And at 576G-H:
'Plainly it is not every error made by a witness which affects his credibility. In each
case the trier of fact has to make an evaluation; taking into account such matters as
the nature of the contradictions, their number and importance, and their bearing on
other parts of the witness's evidence.'

[7] As I see it, the contradictions between the police witnesses in this case
bear the hallmarks of honest mistakes. They are patently immaterial in that
they do not advance or prejudice the police case one way or the other. What
is more, they are clearly of a kind that may result from erroneous observation
in a confused situation – which this undoubtedly was – or which can be
attributed to defective recollection over the period of almost two years that
elapsed between the incident and the trial.

[8] What I find far more significant than these inconsequential differences
between the police witnesses is that, on the material facts, they are not only
corroborated inter se, but virtually in all respects by the defence witnesses.
This is apart from Justin to whose version I shall presently return. The only
difference of note between the defence witnesses and the police relates to a
denial by the former of the police account that they only started shooting with
rubber bullets after the commencement of the stoning by the crowd. Justin,
incidentally, saw no stoning at all. He only saw shooting by the police.
According to the other two defence witnesses, the sequence was as follows:

After the incitement by Crause, members of the crowd started to remove
bags of perlemoen from the scene.

The police then started shooting in their direction with rubber bullets.

Thereafter the crowd began to stone the police.

Subsequent to that the police ran out of rubber bullets and started using
their 9mm pistols.

[9] According to the rather terse judgment of the trial court, it seems to
have preferred the police version. I tend to agree. On the probabilities it would
take an extraordinarily brave person to remove the bags of perlemoen from
eight armed policemen. Much more likely is the prospect that the crowd would
first force the police to retreat so as to enable them to remove the perlemoen.
That, after all, is the strategy that eventually succeeded. Moreover, the two
defence witnesses, each for reasons of his own, hardly earned themselves
any commendations for dependability. While Agenbag expressed his avid
support for his friend Crause and the poachers in the crowd who wanted to
remove 'their' perlemoen, the other witness, Inspector Robertson, contradicted
himself at least four times on this very issue. But, be that as it may. On a
proper analysis even the controversy on this aspect proves to be immaterial,
in that the acceptance of any one version in preference to the other would, in
my view, make no difference to the outcome of the case. I say that for the
reasons that follow.

[10] By any standard, Justin was an unsatisfactory witness. His valiant
attempt to disassociate himself from the obstreperous crowd drove him to
deny even the most obvious, for example, that he had seen stones being
thrown at the police. Nonetheless it is clear, even on his insupportable
version, that his injuries must have been caused by sharp point ammunition
aimed in the general direction of the crowd. By all accounts the police only
started using sharp point ammunition – as opposed to rubber bullets – after
the crowd had started throwing stones. Logic therefore dictates that Justin
sustained his injuries through police action directed at the stone throwing
crowd.

[11] Can it be said that in these circumstances the police action which
caused Justin's injuries does not attract liability because it was justified in
circumstances of necessity? Unlike self-defence – also referred to as private
defence – the defence of necessity does not require that the defendant's
action must be directed at a wrongful attacker. There was therefore no need
for the respondent to establish that Justin was himself part of the attacking
crowd. What the respondent had to prove in order to establish the justification

defence of necessity, appears, for example, in broad outline, from the
following statements in 'Delict' 8(1) Lawsa (2ed) by J R Midgley and J C van
der Walt, para 87:
'An act of necessity can be described as lawful conduct directed against an innocent
person for the purpose of protecting an interest of the actor or a third party . . .
against a dangerous situation . . . .
Whether a situation of necessity existed is a factual question which must be
determined objectively. . . .
A person may inflict harm in a situation of necessity only if the danger existed, or was
imminent, and he or she has no other reasonable means of averting the danger. . . .
The means used and measures taken to avert the danger of harm must not have
been excessive, having regard to all the circumstances of the case . . .'.
(See also eg:Crown Chickens (Pty) Ltd t/a Rocklands Poultry v Rieck 2007 (2)
SA 118 (SCA) paras 13 and 14; D Visser 'Delict' in F de Bois (ed); Wille's
Principles of South African Law 9ed (2007) 1146; Neethling, Potgieter &
Visser Law of Delict 5ed (2006) Chap 3 para 6.3.)

[12] It was not and could not be disputed that the police were protecting
legal interests. It was, however, contended on behalf of the appellant that the
police exaggerated the danger they were in. But both the trial court and the
court a quo found otherwise and I agree with this finding. Even Agenbag who
obviously held no brief for the police, explicitly admitted that the police were
literally in danger of their lives at the time they started firing sharp point
ammunition. The grievous nature of the situation is further objectively
illustrated by the fact that the police were, by all accounts, only able to leave
the scene when Crause ordered a cessation of the stoning and that they were
only able to return when accompanied by reinforcements and in a police
armoured vehicle. In the circumstances counsel for the appellant was unable
to propose any realistic alternative means by which the police could avert the
danger. And I can think of none. Before firing sharp point ammunition they had
essentially tried everything else. The question which sometimes arises in
matters of this kind, namely, whether the defendant should rather have fled,
does not even occur. At the stage when the police started to fire live
ammunition, their attackers simply did not allow them to flee.

[13] In the circumstances, I agree with the finding of both the trial court and
the court a quo, that the respondent had discharged the onus of establishing
that the conduct of the police officers which caused Justin's injuries, was not
wrongful, in that their actions were justified by necessity.

[14] The appeal is dismissed with costs.

……………….
F D J BRAND
JUDGE OF APPEAL

Counsel for Appellant :
John Whitehead SC

Instructed by

:
J L Martinson & Co

Cape Town

Correspondent

:
Claude Reid Inc

Bloemfontein

Counsel for Respondent:
Ashton Schippers SC

Stanley O'Brien

Instructed by

:
The State Attorney

Cape Town

Correspondent

:
The State Attorney

Bloemfontein

THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:
10 September 2009
Status:
Immediate

DOLORA PETERSEN in her capacity as
mother and natural guardian of
JUSTIN LEROY PETERSEN

APPELLANT
and
THE MINISTER OF SAFETY & SECURITY

RESPONDENT

Please note that the media summary is intended for the benefit of the media and
does not form part of the judgment of the Supreme Court of Appeal

On 10 September 2009 the SCA dismissed the appeal of Mrs Dolora Petersen,
acting in her capacity as mother and natural guardian of her minor son Justin
Petersen, against the Minister of Safety and Security.

The appeal arose from an incident that occurred on 19 July 2002 at Gansbaai near
Hermanus when Justin sustained gunshot wounds in his right leg. It was common
cause that the shots had been fired by a policeman acting in the course and scope
of his employment as a servant of the respondent. Departing from this premise, the
appellant instituted action against the respondent in the Hermanus Magistrate's
Court for the damages that Justin had sustained as a result of his injuries.

The police relied on the defence of necessity. In support of this defence they testified
that the problem started when they attempted to seize a large quantity of illegally
harvested abalone or perlemoen. A crowd of about 200 people then gathered and
began to stone the police in order to enable members of the crowd to remove the
perlemoen from the scene.

In the process, so the police testified, an officer was struck on the chest and police
vehicles were damaged. In order to defend themselves, the police first fired rubber
bullets from shotguns in the direction of the crowd. When they ran out of rubber
bullets they started firing sharp point ammunition from their 9mm pistols. According
to the police version, Justin could only have been hit by sharp point ammunition
aimed in the general direction of the stone throwing crowd.

Both the Magistrate's Court and the Cape High Court on appeal held that the police
action was justified by circumstances of necessity. The Supreme Court of Appeal
essentially found that these courts could not be faulted in their finding. In
consequence the appeal was dismissed with costs.