S v Martinus (188/89) [1990] ZASCA 117; [1990] 2 All SA 644 (A) [1990] 2 All SA 644 (A) (28 September 1990)

S v Martinus (188/89) [1990] ZASCA 117; [1990] 2 All SA 644 (A) [1990] 2 All SA 644 (A) (28 September 1990)

The Supreme Court of Appeal held that, even if the appellant had the power to arrest the complainant for trespass (which he did not, as the right to canoe on the river had been judicially confirmed), he used an unreasonable and excessive degree of force by firing a rubber bullet at close range. The appellant's subjective belief in the lawfulness of his actions was not sufficient; the law requires that the use of force in effecting arrest be objectively reasonable. The evidence established that the appellant aimed and fired directly at the complainant, intending to inflict injury, and failed to issue a warning shot. The appellant's reliance on advice regarding the non-lethality of rubber...

Citation
[1990] ZASCA 117
Parties
Appellant: Christopher Jan Alfred Martinus; Respondent: The State
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
28 September 1990
Case Number
188/89
Procedural Posture
Criminal Appeal / Final Appeal Before Supreme Court of Appeal
Outcome
Appeal dismissed. Conviction and sentence for common assault as reduced by the lower court are upheld.
Judges
Hoexter, Steyn, Eksteen
Legal Topics
Assault With Intent to Do Grievous Bodily Harm, Use of Force in Effecting Arrest, Private Arrest Powers, Trespass, Objective Standard of Reasonableness
Criminal Law Land and Property Assault With Intent to Do Grievous Bodily Harm Use of Force in Effecting Arrest Private Arrest Powers Trespass Objective Standard of Reasonableness

Case Brief

Summary, issues, holding and outcome

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Parties

Christopher Jan Alfred Martinus

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Final Appeal Before Supreme Court of Appeal

Legal Issues

  1. 1 Whether the appellant acted lawfully under section 49(1) of the Criminal Procedure Act when shooting the complainant during an attempted arrest.
  2. 2 Whether the appellant had the right to arrest canoeists for alleged trespass on riparian property.
  3. 3 Whether the degree of force used by the appellant was reasonably necessary in the circumstances.

Ratio Decidendi

The Supreme Court of Appeal held that, even if the appellant had the power to arrest the complainant for trespass (which he did not, as the right to canoe on the river had been judicially confirmed), he used an unreasonable and excessive degree of force by firing a rubber bullet at close range. The appellant's subjective belief in the lawfulness of his actions was not sufficient; the law requires that the use of force in effecting arrest be objectively reasonable. The evidence established that the appellant aimed and fired directly at the complainant, intending to inflict injury, and failed to issue a warning shot. The appellant's reliance on advice regarding the non-lethality of rubber...

Court Disposition

Appeal dismissed. Conviction and sentence for common assault as reduced by the lower court are upheld.

Orders

  • The appeal is dismissed.
  • The conviction for common assault and the sentence imposed by the court below stand.