Maimela and Another v Makhado Municipality and Another (269/10) [2011] ZASCA 69; 2011 (2) SACR 339 (SCA); 2011 (6) SA 533 (SCA) (20 May 2011)

Maimela and Another v Makhado Municipality and Another (269/10) [2011] ZASCA 69; 2011 (2) SACR 339 (SCA); 2011 (6) SA 533 (SCA) (20 May 2011)

The Supreme Court of Appeal held that the defence of necessity was correctly upheld by the trial court. Nkuna was subjected to a murderous attack by a hostile crowd while acting within the course and scope of his employment. The evidence established that he fired shots while being assaulted on the ground, with the intention to ward off his attackers and avert imminent death. The court found that it was objectively reasonable for Nkuna to fire his weapon under the circumstances, even though innocent persons were injured or killed. The defence of necessity does not require the action to be directed only at the perpetrators, and the means used were reasonable given the threat to life....

Citation
[2011] ZASCA 69
Parties
Appellant: Samuel Maimela; Appellant: Francina Popela; Respondent: The Makhado Municipality; Respondent: Nghamula Wilson Nkuna
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
20 May 2011
Case Number
269/10
Procedural Posture
Civil Appeal / Appeal From North Gauteng High Court (pretoria), Merits Only; Quantum Stood Over
Outcome
Appeal dismissed with costs.
Judges
MPATI, CACHALIA, MAJIEDT
Legal Topics
Defence of Necessity, Wrongfulness, Vicarious Liability, Dependants Claim, Personal Injury, Loss of Support
Delict Defence of Necessity Wrongfulness Vicarious Liability Dependants Claim Personal Injury Loss of Support

Case Brief

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Parties

Samuel Maimela

Appellant

Francina Popela

Appellant

The Makhado Municipality

Respondent

Nghamula Wilson Nkuna

Respondent

Procedural Posture

Civil Appeal / Appeal From North Gauteng High Court (pretoria), Merits Only; Quantum Stood Over

Legal Issues

  1. 1 Whether the defence of necessity justified the shooting by the second respondent, absolving him and the first respondent from delictual liability.
  2. 2 Whether the dependants' claim for loss of support can succeed where the killing was justified by necessity.
  3. 3 Whether the conduct of firing shots into a crowd was objectively reasonable under the circumstances.

Ratio Decidendi

The Supreme Court of Appeal held that the defence of necessity was correctly upheld by the trial court. Nkuna was subjected to a murderous attack by a hostile crowd while acting within the course and scope of his employment. The evidence established that he fired shots while being assaulted on the ground, with the intention to ward off his attackers and avert imminent death. The court found that it was objectively reasonable for Nkuna to fire his weapon under the circumstances, even though innocent persons were injured or killed. The defence of necessity does not require the action to be directed only at the perpetrators, and the means used were reasonable given the threat to life....

Court Disposition

Appeal dismissed with costs.

Orders

  • The appeal is dismissed with costs.