Malahe and Others v Minister of Safety and Security and Others (401/96) [1998] ZASCA 64; 1999 (1) SA 528 (SCA); [1998] 4 All SA 246 (A) (10 September 1998)

Malahe and Others v Minister of Safety and Security and Others (401/96) [1998] ZASCA 64; 1999 (1) SA 528 (SCA); [1998] 4 All SA 246 (A) (10 September 1998)

The Supreme Court of Appeal found that the respondents failed to discharge the onus to justify the shooting at the appellants. The common cause facts established a prima facie inference of wrongfulness and intentional conduct in relation to the shooting. The respondents did not prove that they were unaware of the presence of passengers or that their actions were reasonable. The court held that Botha and van Zyl, as trained observers, should have seen the passenger in the Toyota and reasonably foreseen the possibility of other occupants. Their conduct in firing at the vehicle was both wrongful and negligent. The first respondent was vicariously liable for the actions of the other...

Citation
[1998] ZASCA 64
Parties
Appellant: Malahe J F S; Appellant: Omera N; Appellant: Malo JXM; Respondent: Minister of Safety and Security; Respondent: Van Zyl H; Respondent: Roos D; Respondent: Botha L; Respondent: Du Preez M
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
10 September 1998
Case Number
401/96
Procedural Posture
Civil Appeal / Appeal From the Transvaal Provincial Division to the Supreme Court of Appeal
Outcome
Appeal allowed; respondents held jointly and severally liable for damages sustained by the appellants due to unlawful assault and negligent conduct.
Judges
Smalberger, F H Grosskopf, Streicher, Farlam, Ngoepe
Legal Topics
Unlawful Assault, Negligence, Vicarious Liability, Use of Firearms by Police, Reasonable Foreseeability
Delict Civil Procedure Unlawful Assault Negligence Vicarious Liability Use of Firearms by Police Reasonable Foreseeability

Case Brief

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Parties

Malahe J F S

Appellant

Omera N

Appellant

Malo JXM

Appellant

Minister of Safety and Security

Respondent

Van Zyl H

Respondent

Roos D

Respondent

Botha L

Respondent

Du Preez M

Respondent

Procedural Posture

Civil Appeal / Appeal From the Transvaal Provincial Division to the Supreme Court of Appeal

Legal Issues

  1. 1 Whether the second to fifth respondents were guilty of unlawful assault or negligent conduct resulting in injury to the appellants.
  2. 2 Whether the respondents discharged the onus to justify the shooting under sections 40(1) and 49(1) of the Criminal Procedure Act.
  3. 3 Whether the respondents knew or should have foreseen the presence of passengers in the Toyota and owed a legal duty to act reasonably towards them.

Ratio Decidendi

The Supreme Court of Appeal found that the respondents failed to discharge the onus to justify the shooting at the appellants. The common cause facts established a prima facie inference of wrongfulness and intentional conduct in relation to the shooting. The respondents did not prove that they were unaware of the presence of passengers or that their actions were reasonable. The court held that Botha and van Zyl, as trained observers, should have seen the passenger in the Toyota and reasonably foreseen the possibility of other occupants. Their conduct in firing at the vehicle was both wrongful and negligent. The first respondent was vicariously liable for the actions of the other...

Court Disposition

Appeal allowed; respondents held jointly and severally liable for damages sustained by the appellants due to unlawful assault and negligent conduct.

Orders

  • The appeal succeeds, with costs.
  • The order of the trial court is altered to hold the defendants jointly and severally liable for damages sustained by the plaintiffs as a consequence of the unlawful assault on the third plaintiff and negligent conduct in relation to the first and second plaintiffs on 18 April 1990.