Govender v Minister of Safety and Security (342/99) [2001] ZASCA 80; 2001 (4) SA 273 (SCA); 2001 (2) SACR 197 (SCA); 2001 (11) BCLR 1197 (SCA) (1 June 2001)

Govender v Minister of Safety and Security (342/99) [2001] ZASCA 80; 2001 (4) SA 273 (SCA); 2001 (2) SACR 197 (SCA); 2001 (11) BCLR 1197 (SCA) (1 June 2001)

Section 49(1) of the Criminal Procedure Act must be interpreted in accordance with constitutional values, requiring that the use of force in effecting arrest be both reasonable and justifiable. The previous test of proportionality between the seriousness of the offence and the degree of force used is insufficient; the law now requires consideration of whether the suspect poses an immediate threat of serious bodily harm to the officer or others, or has committed a crime involving such harm. In this case, Justin was unarmed, young, and posed no immediate threat to the police or the public. The use of a firearm to prevent his escape was not justified, as the interests of society did not...

Citation
[2001] ZASCA 80
Parties
Appellant: Devraj Govender; Respondent: Minister of Safety and Security
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
1 June 2001
Case Number
342/99
Procedural Posture
Civil Appeal / Appeal From High Court Judgment Absolving Defendant From the Instance
Outcome
Appeal upheld; trial court's order set aside; matter referred back for quantification of damages.
Judges
P J J Olivier, Hefer, Smalberger, Scott, Cameron
Legal Topics
Use of Force in Arrest, Section 49 Criminal Procedure Act, Bill of Rights Limitation, Vicarious Liability, Reasonableness Standard, Proportionality in Law Enforcement
Delict Constitutional Law Criminal Law Use of Force in Arrest Section 49 Criminal Procedure Act Bill of Rights Limitation Vicarious Liability Reasonableness Standard +1 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 11 Party arguments 2
Sign in to unlock

Parties

Devraj Govender

Appellant

Minister of Safety and Security

Respondent

Procedural Posture

Civil Appeal / Appeal From High Court Judgment Absolving Defendant From the Instance

Legal Issues

  1. 1 Whether the shooting of a fleeing suspect by a police officer was wrongful and unlawful under section 49(1) of the Criminal Procedure Act.
  2. 2 Whether section 49(1) can be interpreted in conformity with constitutional standards of reasonableness and justifiability.
  3. 3 Whether the use of potentially lethal force was proportionate to the threat posed by the suspect.

Ratio Decidendi

Section 49(1) of the Criminal Procedure Act must be interpreted in accordance with constitutional values, requiring that the use of force in effecting arrest be both reasonable and justifiable. The previous test of proportionality between the seriousness of the offence and the degree of force used is insufficient; the law now requires consideration of whether the suspect poses an immediate threat of serious bodily harm to the officer or others, or has committed a crime involving such harm. In this case, Justin was unarmed, young, and posed no immediate threat to the police or the public. The use of a firearm to prevent his escape was not justified, as the interests of society did not...

Court Disposition

Appeal upheld; trial court's order set aside; matter referred back for quantification of damages.

Orders

  • The appeal succeeds with costs, including the costs of two counsel.
  • The matter is referred back to the court a quo for the quantification of the damages claimed.