THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

CASE NO: 200/06
Reportable
In the matter between

MINISTER OF SAFETY AND SECURITY                          Appellant

and

MATHUME MOHOFE
Respondent

Coram:
HOWIE P, FARLAM, NUGENT, LEWIS, JAFTA JJA
Heard:
23 FEBRUARY 2007
Delivered:
23 MARCH 2007

Summary: A police officer who announces his presence and orders armed and fleeing robbery
suspects to stop is not guilty of negligence merely by reason of that fact where a suspect, in
response to the order, shoots at him but the shot hits an innocent bystander who is killed.

Neutral citation: This case may be cited as MINISTER OF SAFETY AND
SECURITY v MOHOFE  [2007] SCA 21 (RSA)

LEWIS JA
[1] At about 16h00 on 12 March 2001, near the corner of Bree and Rissik
Streets, Johannesburg, Inspector Gerson Nemengaya, a police officer in plain
clothes on patrol in the area, saw three men emerge from a shop that he
suspected had been robbed. Two of the men, at least, were armed. They had
tucked their firearms in the waistbands of their trousers on leaving the shop.
The men fled the area: he approached them, shouting that he was a policeman.
He ordered them to stop. Two continued running. The third, identified later as
Mr Banyana Sibeko, whom Nemengaya had seen in the shop holding a firearm,
stopped and fired a shot at him. Nemengaya dived to the ground. The shot
missed him. He chased after them, and about three blocks from the scene of
the shooting, Nemengaya fired a warning shot into the air, ordered Sibeko to
stop, and, when Sibeko ignored him, shot him in the leg. Nemengaya and
another police officer, with whom he was on duty, arrested Sibeko and took him
back to the scene of the robbery. There they found Mr Johannes Mohofe, who
had been shot, lying on the ground. He was taken to hospital but died the same
day.

[2] The respondent was the mother of Mohofe, and, arising out of his death,
claims damages from the appellant for loss of support for herself and on behalf
of the minor children of Mohofe. The issue in this appeal is whether the
appellant (the State) is delictually liable for the conduct of Nemengaya, as the
respondent alleges. She claims from the State on the basis that it is vicariously
liable for the wrongful and negligent conduct of Nemengaya in causing the
death of Mohofe. Although it was found that Mohofe had actually been shot by
Sibeko when he opened fired on Nemengaya, the claim is based on the alleged
negligent and wrongful conduct of Nemengaya in alerting Sibeko to the fact that
he was a policeman, thus causing Sibeko to shoot into a crowd of innocent
bystanders. (The respondent had originally alleged that her son had been shot
by Nemengaya. The trial court found that this was not the case, and accepted
that Mohofe had been struck and killed by the shot fired by Sibeko. This finding
is not in issue on appeal.)

[3] The trial court (Schwartzman J in the Johannesburg High Court) found
for the respondent: it held that Nemengaya owed a legal duty to protect Mohofe,

that he had acted in breach of that duty (wrongfully) and had negligently caused
the death of Mohofe. The State was thus held to be vicariously liable. The
appeal against the decision lies with the leave of Schwartzman J.

[4] In the view I take, it is not necessary to decide whether or not
Nemengaya’s conduct in calling out to Sibeko can properly be said to have
been the cause of Mohofe’s death but I shall assume that it was. An act that
causes injury to another, or death, is prima facie wrongful.1 I assume also that
there are no other matters of policy that should operate against that principle in
this case.  The only issue to be determined, therefore, is whether Nemengaya’s
conduct was negligent.

[5] The trial court concluded that Nemengaya was guilty of negligence. The
classic test for negligence set out in Kruger v Coetzee,2 cited by the learned trial
judge, requires a court to ask whether the reasonable person in the position of
the defendant would have foreseen the reasonable possibility of his conduct
injuring another and causing him patrimonial loss; and, if so, whether the
reasonable person would have taken reasonable steps to guard against the
occurrence of harm. The fact that harm is reasonably foreseeable does not
necessarily mean that the defendant was required to act to prevent it occurring.
As Holmes JA said in Kruger v Coetzee:3
‘Whether the diligens paterfamilias in the position of the person concerned would take
any guarding steps at all and, if so, what steps would be reasonable, must always
depend upon the particular circumstances of each case.’

[6] The trial court concluded that Nemengaya was guilty of negligence
because he foresaw the possibility of his conduct causing injury and thus
patrimonial loss, but he failed to guard against the injury in calling out as he did.
He could have guarded against the injury by not calling out. It is these findings
that are open to question.

1 Cape Town Municipality v Paine 1923 AD 207 at 216-217; Minister of Safety and Security v
Van Duivenboden 2002 (6) SA 431 (SCA) para 12 and Minister van Veiligheid en SekuriteIt v
Geldenhuys 2004 (1) SA 515 (SCA) para 24.
2 1966 (2) SA 428 (A) at 430E-F.
3 Above at 430F-H.

[7] Nemengaya had been a police officer for some nine years before the
shooting occurred. He was patrolling around Bree Street with a colleague, and
was armed with his service pistol. He had seen the three men emerge from the
shop with firearms. At that time his colleague was not on the scene.
Nemengaya did what he said he had been trained to do as a policeman: he
announced his presence and ordered the suspects to stop. He had been
instructed not simply to chase after fleeing suspects, but to warn them first that
he was a police officer, and order them to stop. That is standard procedure. His
opinion was that in most cases suspects would then surrender.

[8] Nemengaya admitted that the area where the shop had been robbed was
crowded with pedestrians. People were on their way home from work.  He also
conceded that an armed suspect, alerted to the fact that he was a police officer,
might fire at him and hit someone else.  But he refused to concede that he
should have run after the suspects until they reached a place where there were
no bystanders and only then have shouted a warning. ‘It does not work like
that’, he said. You cannot just ‘follow him until he comes to the area where it is
clean because my aim is to protect the public and to arrest the person who do
wrong’.

[9] The test for negligence is objective. Would the reasonable police officer
in the position of Nemengaya have foreseen that if he alerted the suspects to
his presence one of them might shoot at him and injure or kill a bystander in the
process? It seems to me to have been an objectively reasonable possibility. But
there are other possibilities that the reasonable police officer might foresee too.
He might reasonably foresee that if he called out that he was a policeman and
ordered the fleeing suspects to stop they might do so.  And as I have said,
Nemengaya’s testimony, uncontradicted by other evidence, was that fleeing
suspects ‘must surrender’ when alerted to the presence of the police. Another
reasonably foreseeable possibility was that the armed suspects might continue
fleeing and not only escape being apprehended but also constitute a further
danger to the public at any stage in their flight If the crowds had become denser
further on they might have panicked and resorted to shooting to ensure escape.
[10] In the same circumstances a reasonable police officer in the position of
Nemengaya would have to make a choice as to the best steps to take to fulfil

the duty to protect the public and apprehend criminals. He could not stand by
and do nothing. That would be in dereliction of his duty. And his choice as to the
steps to be taken would inevitably be made on the basis of his training and his
experience.

[11] Nemengaya believed, correctly, that he had a duty to protect the public.
This is a duty that flows from the Constitution: s 205(3) provides that ‘The
objects of the police service are to prevent, combat and investigate crime, to
maintain public order, to protect and secure the inhabitants of the Republic and
their property, and to uphold and enforce the law.’ The duty is imposed also
under the South African Police Service Act4 the preamble of which affirms that it
is the duty of police officers to ensure the safety and security of all people in the
country.5 His duty was owed both to the members of the public around him and
also to those with whom the suspects might come into contact in their attempted
escape.

[12] Nemengaya discharged that duty by doing what he had been trained to
do. There is nothing to suggest that he behaved in a manner different from the
way in which the hypothetical reasonable police officer would behave in the
circumstances. If the reasonable police officer would foresee the possibility that
an innocent bystander might be injured or killed by an armed suspect, what
steps would he take to avert this while nevertheless doing his duty? In
determining whether the second test in Kruger v Coetzee has been met, one
must weigh the ‘gravity of the risk’ (a bystander being shot) with the ‘utility of his
conduct’,6 apprehending at least one of the suspects.  In Herschel v Mrupe7
Schreiner JA famously said:
‘No doubt there are many cases where once harm is foreseen it must be obvious to the
reasonable man that he ought to take appropriate avoiding action. But the
circumstances may be such that a reasonable man would foresee the possibility of
harm but would nevertheless consider that the slightness of the chance that the risk
would turn into actual harm, correlated with the probable lack of seriousness if it did,
would require no precautionary action on his part. Apart from the cost or difficulty of

4 Act 68 of 1995.
5 See the discussion of these duties in K v Minister of Safety and Security 2005 (6) SA 419 (CC)
paras 18 and 19.
6 Crown Chickens (Pty) Ltd v Rieck [2006] SCA 127 (RSA) para 14.
7 1954 (3) SA 464 (A) at 477A-C.

taking precautions, which may be a factor to be considered by the reasonable man,
there are two variables, the seriousness of the harm and the chances of its happening.
If the harm would probably be serious if it happened the reasonable man would guard
against it unless the chances of its happening were very slight. If, on the other hand,
the harm, if it happened, would probably be trivial the reasonable man might not guard
against it even if the chances of its happening were fair or substantial.’
To this should be added the rider that the reasonable person might not guard
against the risk if the alternatives posed just as much risk.

[13] Thus when the reasonable police officer foresees the possibility that a
fleeing suspect might, when confronted by a policeman, shoot at him and hit a
bystander instead, he would also weigh the likelihood of this happening against
the possibility that the suspects might escape, and continue to be a danger to
the public if he did nothing.  He would also take into account the likelihood of
the suspects surrendering, even if this was not great. The risk of allowing the
suspects to escape had to be weighed against all that. By shouting out that he
was a policeman, and chasing after Sibeko, Nemengaya managed to
apprehend him. That, at least in part, was the result he sought to achieve.

[14] In determining whether the driver of a train was negligent Wessels CJ in
South African Railways v Symington8 said that a court should take great care
‘lest we stigmatize a person as guilty of culpa when in fact he did all that could be
expected of him under the particular circumstances of the case. This involves a correct
appreciation not only of the surrounding circumstances but also of human nature, so as
to be able to judge correctly what a particular person ought or ought not to have done
in the circumstances. One man may react very quickly to what he sees and takes in,
whilst another man may be slower. We must consider what an ordinary reasonable
man would have done. Culpa is not to be imputed to a man merely because another
person would have realized more promptly and acted more quickly. Where men have
to make up their minds how to act in a second or a fraction of a second, one may think
this course the better whilst another might prefer that. It is undoubtedly the duty of
every person to avoid an accident, but if he acts reasonably, even if by a justifiable
error of judgment he does not choose the very best course to avoid the accident as
events afterwards show, then he is not on that account to be held liable for culpa.’
And in S v Bochris Investments (Pty) Ltd9 this court cautioned against being
influenced by ‘the insidious subconscious influence of ex post facto knowledge’

8 1935 AD 37 at 45.

(a phrase used by Williamson JA in S v Mini10). The cautionary note is repeated
in Minister of Safety and Security v Carmichele.11

[15] Nemengaya was caught up in a situation where he had to act quickly and
protect the public from three fleeing robbery suspects. He acted as he had been
trained to do. It is not clear to me that he was guilty even of an error of
judgment. What other action could Nemengaya have taken to stop and
apprehend armed men whom he suspected of having committed a robbery? No
answer is suggested by the appellant other than that he should not have alerted
the suspects to his presence but should rather have chased them to a place
where there were no bystanders. With hindsight it is possible that he may have
avoided the death of Mohofe. But equally, he may well have been derelict in his
duty in doing so, for all the fleeing suspects, at least two of whom were armed,
might easily have disappeared or harmed others when fleeing.

[16] Nemengaya did no more than alert the suspects to the fact that he was a
policeman and call on them to stop. He acted in terms of standard police
procedures that have not been demonstrated to be ineffective or inappropriate.
The logical consequence of the appellant’s argument, on the other hand, is that
whenever police officers are confronted by armed and thus dangerous people
who flee from the scene of a crime, they must remain silent and do no more
than covertly chase after the suspects until they reach a place where there are
no bystanders. If this were so, criminals would  hold sway in any busy place. No
court should be understood to suggest that police officers should be supine in
the face of criminal activity. Some action was required. On the evidence it
cannot be said that the reasonable police officer would have viewed the risk
attendant on calling out as greater than the risk of the suspects shooting a
member of the public in the immediately ensuing stage of their getaway.

[17] In the circumstances Nemengaya did not act negligently. The claim
should have been dismissed.

9 1988 (1) SA 861 (A) at 866-867.
10 1963 (3) SA 188 (A) at 196E-F. See also  Sea Harvest Corporation (Pty) Ltd v Duncan Dock
Cold Storage (Pty) Ltd  2000 (1) SA 827 (SCA) paras 21 and 22.
11 2004 (3) SA 305 (SCA) para 45.

[18] The appeal is upheld with costs. The order of the court below is replaced
with:
‘The plaintiff’s claim is dismissed with costs.’

C H Lewis
Judge of Appeal

Concur:
Howie P
Farlam JA
Nugent JA
Jafta JA
THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

PRESS RELEASE

20 March 2007

STATUS: Immediate

Minister of Safety and Security v Mohofe
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

In the late afternoon of 12 March 2001 a police officer, Inspector G Nemengaya, on patrol
(in plain clothes) in a crowded Johannesburg street, saw three robbery suspects emerge
from a shop. He saw that two of them were armed. He called out that he was a policeman
and ordered them to stop. One drew his firearm and shot at Nemengaya, who dived to the
ground. But he then chased the suspects and apprehended the man who shot at him.

Unbeknown to Nemengaya when he gave chase, the shot killed a man who was in the
vicinity. The respondent, the mother of the deceased, claimed damages for loss of support
for herself and the deceased’s minor children. The High Court, Johannesburg, found that
Nemengaya’s conduct in calling out that he was a police officer had been negligent and
was the wrongful cause of the death of the deceased. The State was thus liable to
compensate the respondent for the loss caused.

The SCA today held that Nemengaya had not acted negligently, and thus upheld the
appeal against the high court’s decision. The court considered that although a reasonable
police officer in the position of Nemengaya would have foreseen that an escaping suspect,

when alerted to the presence of police, might shoot at him and hit a passerby instead, he
would also have foreseen other possibilities: the suspect might surrender (that was
Nemegaya’s experience) or the suspect might continue to run away and harm others in the
vicinity.  The reasonable police officer would have weighed all these factors and their
attendant risks and nonetheless taken the risk of alerting the suspects to his presence. On
the evidence it could not be said that the reasonable police officer would have viewed the
risk of alerting the suspects to his presence as greater than that of the suspects fleeing
and shooting a member of the public in their getaway. It was Nemengaya’s duty as a
police officer to protect the public and he had taken reasonable steps to do so. He had
thus not been negligent in calling out that he was a policeman. The State was accordingly
not liable to compensate the respondent for the loss suffered by her and the deceased’s
minor children.
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