REPUBLIC OF SOUTH AFRICA

THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA

Reportable
Case Number  :  303 / 03

In the matter between

NKHUMELENI SARAH MUGWENA
FIRST APPELLANT
LEFUNO CHARLOTTE MUGWENA
SECOND APPELLANT

and

THE MINISTER OF SAFETY AND SECURITY
RESPONDENT

Coram :
SCOTT, STREICHER et PONNAN  JJA;  NKABINDE et MAYA  AJJA

Date of hearing :

15 NOVEMBER 2005

Date of delivery :

29 November 2005

SUMMARY

South African Police Service Act 68 of 1995 – whether pursuant to s 57(5) the
requirements or prohibitions contained in s 57(1) and (2) should be dispensed with.
Whether killing of the deceased by the police justified in private defence.

___________________________________________________________________

J U D G M E N T
___________________________________________________________________

PONNAN  JA

[1] At approximately midnight on 26 August 1997 an off-duty
policeman, Charles Makhado Mugwena ('the deceased'), was shot and
killed outside his rondavel in the Buwani district of the Northern
Province.  Earlier that evening Sergeants Botha, Pauer and Chauke, as
well as Constable Matumba and police reservist Reyneke had set out
from the Makhadu (formerly Louis Trichardt) police station on the
instructions of their commanding officer, Captain Van Schie, in search of
a certain Thomas Masala, who had reportedly been threatening farm
workers with a firearm.

[2] All the members of the SAPS were dressed in either camouflage
or standard-issue police attire.  They arrived in two police vehicles at a
farm on the road between Makhadu and Thohoyandou where they met
Boitjie Mudau, an informer.  A perfunctory search at the first residence to
which they were directed by Mudau failed to yield Masala.

[3] Directed by Mudau, the two vehicles travelled some 50-60
kilometres to the rondavel of the deceased.  The area, which was not
illuminated by any artificial lighting, was dark.  According to both
Matumba and Pauer, the latter led the way, followed by the other three
members of the SAPS.  Reyneke positioned himself behind a mud wall
whilst Mudau remained seated in the vehicle.  Pauer knocked on the
door and, in response to a query as to who it was identified himself as

the police.  In response to a further query he informed the occupants
that they were looking for a Thomas Masala.  Having heard a click that
he believed was made by the opening of a briefcase, Botha suggested
that the occupant of the hut was arming himself with a firearm.  Pauer, in
response, retreated into the shadows. The door then opened and the
deceased emerged with his firearm drawn.  The deceased pointed his
firearm in the direction of Matumba.  When asked by Botha what he was
doing the deceased trained his firearm on Botha.  According to Matumba
he shouted: 'We are the police' whilst charging at and grabbing the
deceased from behind.

[4] Being much larger than Matumba, the deceased broke free and
struck at the former with his fist and firearm.  Having disengaged himself
from Matumba, the deceased overcame the latter’s attack and pinned
down Matumba who by that stage had fallen to the ground. The
deceased then pointed his firearm at Matumba's head.  Matumba
discharged his firearm four times in quick succession with fatal results.

[5] The appellants, alleging that the member of the SAPS who had
shot and killed the deceased was acting within the course and scope of
his employment with the respondent, the Minister of Safety and Security,
instituted action against him in the Venda High Court.  The first
appellant, the surviving spouse of the deceased, did so both in her

personal capacity and in her capacity as mother and natural guardian of
the three minor children born of the union between the deceased and
herself.  Although a minor at the time of the deceased's death, the
second appellant, the deceased’s daughter, who had since attained
majority, instituted action in her personal capacity.

[6] Paragraph 16 of the plaintiff's particulars of claim reads:
'Plaintiffs have not complied with the time periods set out in the provisions of section
57 of Act 68 of 1995.  Plaintiffs allege that there exists sufficient reasons requiring
the above Honourable Court to dispense with such provisions in the interest of
justice, more particularly, and without limiting Plaintiffs in any regard, in that:
16.1 Plaintiffs had difficulty in ascertaining the identity of the assailants whom they
had wished to cite as further Defendants, alternatively to assess the extent to which
the assailants were acting in the course and scope of their employment.
16.2 Plaintiffs awaited the conduct and outcome of a judicial inquest into the death
of the deceased, which inquest was delayed and postponed due to reasons which
Plaintiffs had no control over.'

[7] The claim of the appellants was met, in the first instance, with a
special plea that s 57(1) of the South African Police Service Act 68 of
1995 ('the Act') had not been complied with, hence, so it was contended,
the appellants were barred from instituting the action.  In the main plea it
was asserted that the member of the SAPS who shot and killed the
deceased did so whilst acting in self defence.  The issue of liability

having been separated from that of quantum, two issues arose for
determination before Hetisani J in the court a quo.  First, should the
court dispense, pursuant to the provisions of s 57(5) of the Act, with the
requirements or prohibitions contained in s 57(1) and (2)?  If so,
secondly, whether the killing of the deceased was justified in self-
defence.  The learned judge in the court a quo concluded:
'The special plea is upheld and the Plaintiffs' claim is dismissed because it has
technically not complied with the provision of s 57(1) of the South African Police
Service Act, Act No 68 of 1995.  Because of the decision above, it is no longer
necessary to delve into the merits of this case.'
The present appeal is with leave of this court.

[8] Section 57, to the extent here relevant provides:
'(1)
No legal proceedings shall be instituted against the Service or any body or
person in respect of any alleged act performed under or in terms of this Act or any
other law, or an alleged failure to do anything which should have been done in terms
of this Act or any other law, unless the legal proceedings are instituted before the
expiry of a period of 12 calendar months after the date upon which the claimant
became aware of the alleged act or omission, or after the date upon which the
claimant might be reasonably expected to have become aware of the alleged act or
omission, whichever is the earlier date.
(2)
No legal proceedings contemplated in subsection (1) shall be instituted before
the expiry of at least one calendar month after written notification of the intention to

institute such proceedings, has been served on the defendant, wherein particulars of
the alleged act or omission are contained.
(3)
...
(4)
...
(5)
Subsections (1) and (2) shall not be construed as precluding a court of law
from dispensing with the requirements or prohibitions contained in those subsections
where the interests of justice so require.'

[9] The first appellant, a primary school educator by profession, is
possessed of a three-year teaching diploma in addition to her
matriculation certificate.  After the death of her husband she observed a
period of mourning of approximately four months during which she was
housebound.  According to her it was the lack of progress in the criminal
investigation as well as the failure to commence the inquest proceedings
that prompted her to initially consult with an attorney.  Leon Klaff, the
attorney in question, recorded that she first visited him on 30 December
1998 some sixteen months after her husband's death.  By that stage the
12 calendar months envisaged in s 57(1) had already run its course.
Approximately nine months were to pass before a formal s 57 notice
came to be despatched on 18 October 1999 and received, it would
appear, on the 26th of that month.  The summons in the matter ultimately
came to be issued on 19 July 2000 and served six days later.

[10] From the time he first received instructions until despatch of the
formal notice, attorney Klaff indulged in a desultory exchange of
correspondence with various state departments.  The correspondence
was directed primarily at the employers of both the first appellant and the
deceased.  The purpose, so it would seem, was to secure sufficient
detail to properly quantify the claim of the appellants.  The lackadaisical
conduct of the attorney makes it plain that he was oblivious to the time
limits prescribed by s 57 of the Act. Indeed that was his evidence.  He
believed, quite erroneously, that 'the limits would only start running after
the criminal [trial] or inquest ... had been finalised'.

[11] It is a poor reflection on an attorney of 24 years standing that he
should be blissfully ignorant of the relevant statutory requirements.  And
yet, that it seems, is precisely the case.  Alarmingly, his evidence whilst
being cross-examined was to the effect that he had only just for the first
time then read s 57(5).  He was likewise unaware that he could have
sought and perhaps obtained an extension of time for the prosecution of
the claim.  Ultimately his explanation is that as a country practitioner
whose practice is limited by the financial constraints of his clients, he
could hardly have acquired the specialist knowledge required for the
timeous prosecution of the appellants’ claim.

[12] The question whether the granting of an application in terms of
s 57(5) of the Act would be in the interests of justice in the context in
which that expression is used involves in my view essentially a value
judgment based on general considerations of equity and fairness to both
parties viewed against the factual matrix of each case (Lek v Estates
Agents Board 1978 (3) SA 160 (C) at 171C).

[13] Section 57 replaced s 32 of the previous Police Act 7 of 1958. The
latter could hardly have passed constitutional scrutiny (see Mohlomi v
Minister of Defence 1997 (1) SA 124 (CC)).  Of the predecessor to s 57
(s 17 of the South African Police Service Rationalisation Proclamation
R5 of 1995) this court per Corbett CJ in Minister of Safety and Security v
Molutsi and Another 1996 (4) SA 72 (A) at 96 D-H stated:
‘Although ... [it] has the same general purpose as s 32 of the Police Act had, there
are certain important differences between the two enactments.  Firstly, the expiry
period has been extended from six months to 12 calendar months.  Secondly,
whereas under s 32 the expiry period commenced to run as from the date when the
cause of action arose, under s 17 this period commences as from the date upon
which the claimant became aware of the act or omission constituting his cause of
action or as from the date when the claimant might be reasonably expected to have
become aware of the act or omission, reasonably expected to have become aware
of the act or omission, whichever is the "earliest" (sic) date.  This change means that
s 17 is more or less in line with s 12(3) of the Prescription Act 68 of 1969.  And,
thirdly, whereas under s 32 the Court had no power to dispense with the

requirements of the section, under s 17(5) there is provision for such a dispensing
power, to be exercised where the interests of justices so require.  There is no doubt
that s 32 was a somewhat Draconian measure in that a claimant who was unaware
that he had a cause of action when it arose or who failed for reasons falling short of
impossibility to prosecute his claim within the time limits laid down received no
special consideration or redress.  Section 17 was obviously introduced in order to
ameliorate the position   (cf Pizani's case supra at 602D-H).'

[14] Against that backdrop I return to the facts.  Although an educated
woman, it is plain, on a reading of her evidence that the first appellant is
unsophisticated in the ways of the law.  Perturbed at the lack of progress
in the criminal investigation, she approached an attorney.  Her purpose
in doing so was to ensure that her interests and those of her children
would be adequately protected during the formal inquest into her
husband’s death and any subsequent criminal trial that may ensue.
According to the first appellant, she knew immediately after the incident
that her husband had been shot and killed by the police.  In her view his
killing was unlawful. She, thus, in her words wanted ‘compensation for
what had [been] done’. That, however, by no stretch of the imagination,
can lead one to the conclusion that she knew that a civil suit had to be
instituted against the respondent and more importantly that she had
twelve calendar months within which to do it. To borrow from Didcott J,
her lack of knowledge

‘... must be viewed against the background depicted by the state of affairs prevailing
in South Africa, a land where poverty and illiteracy abound and differences of culture
and language are pronounced, where such conditions isolate the people whom they
handicap from the mainstream of the law, where most persons who have been
injured are either unaware of or poorly informed about their legal rights and what
they should do in order to enforce those, and where access to the professional
advice and assistance that they need so sorely is often difficult for financial or
geographical reasons.'
(Moholomi v Minister of Defence 1997 (1) SA 124 (CC) para 14.)

[15] Properly construed her evidence is to the effect that until her first
consultation with attorney Klaff, she did not believe that more was
expected of her than merely co-operating with the police investigation.
From that point onwards the matter was entrusted to him.  The
inexperience of her attorney in prosecuting claims of the kind
encountered here is patent.  It can hardly be suggested that the first
appellant should have been alive to the relevant time-bar provisions
when her attorney himself had no inkling of their existence.  No wilful
dilatoriness can be attributed to the first appellant.  After all, given her
‘isolation from the mainstream of the law’, her belief that the matter was
receiving appropriate attention and the solace she drew from the
knowledge that the matter was in the capable hands of a skilled

professional, can hardly be faulted.  It hardly seems fair on the facts
here present to attribute her attorney's alarming ineptitude to her.

[16] The delay has not been an unconscionable one. To all of that must
be added an important factor, namely, that the first appellant was also
claiming on behalf of minor children, who would be left remediless, were
the relief sought not be granted. Whether the interests of justice would
best be served in holding that the claim on behalf of the minor children
had also expired and how that squared with the constitutional principle of
the best interests of the child received no consideration whatsoever by
the trial court.  On the view that I take of the matter it is not necessary to
dwell any further on that aspect or to distinguish between the claims of
the first appellant in her personal capacity and those on behalf of the
minor children. The appellants and the minor children have suffered both
financially and emotionally. The loss of financial security that the
deceased’s death causes is likely to be substantial.  The present action
seeks to ameliorate in part the loss visited on them by his death.

[17] There has not been any suggestion of prejudice to the respondent.
In my view there was none. An off-duty policeman was killed.  An
investigation was conducted by senior members of the SAPS into his
death.  A full inquest into his death followed and a finding was returned
by the inquest magistrate.  Shortly after the shooting each of the

members who was present at the scene of the shooting deposed to a
statement.  No disadvantage was claimed by virtue of the effluxion of
time.  Notwithstanding the lapse of time from the death of the deceased
until the institution of the action it was not necessary for the respondent
to cause any new enquiries to be made. All the information reasonably
required to decide what defence, if any, should be mounted was readily
available to the respondent.

[18] Section 57 permits account to be taken of the claimant’s fault or
the lack thereof and the prejudice suffered by the state or its absence
(Moholomi para 19). It seeks, on the one hand to protect innocent
claimants who may be time-barred in consequence of not having
complied with the prescribed time limits and, on the other, to protect the
police, a large bureaucracy, against the prejudice it may suffer in
consequence of inordinate delays in instituting actions against it.
Striking a balance between these competing considerations is thus
central to the enquiry envisaged by ss 5.  That subsection is cast in wide
terms. It empowers a court to engage in a weighing-up exercise. That
ought to have characterised the approach of the trial court.  It did not.
That prejudice to the respondent had not been asserted and, in fact, was
manifestly absent, did not merit a mention in the trial court's judgment.
In its approach to the duty cast upon it by the legislation it misdirected

itself.  Absent prejudice there was little if anything to tip the scales in
favour of the respondent or against the grant of the relief sought.

[19] As the failure to comply with the provisions of ss 57(1) and (2) has
been neither blameworthy, given the heavy handicaps that burden the
appellants, nor prejudicial to the respondent, the trial court ought to have
dispensed with the requirements or prohibitions contained in those
subsections.  It must follow that on this aspect of the case the conclusion
of the trial court cannot be sustained.  In the result the special plea ought
to have been dismissed with costs.

[20] The conclusion which Hetisani J reached on the special plea
rendered it unnecessary for him in his words to:  ' ... delve into the merits
of this case'.  The contrary conclusion reached by me would ordinarily
warrant a referral of the matter to the trial court for a consideration of the
merits.  But on the facts of this case, there would be little if any benefit in
remitting the matter.  As I have already stated the sole remaining issue
for determination on the merits is whether the member of the SAPS who
shot and killed the deceased did so whilst acting in self-defence.  All the
evidence on this aspect of the case has already been tendered before
the trial court and forms part of the record on appeal.  From the
perspective of the appellants it has been eight long years since the
death of the deceased.  They would obviously prefer that the matter be

finalised.  So too I would think the respondent.  As the evidence in the
matter was concluded on 20 June 2002, and judgment delivered on 29
August 2002, it is unlikely that the trial court would be in a manifestly
better position to make that determination.  I accordingly pass to
consider whether the killing of the deceased was justified.

[21] Self-defence, which is treated in our law as a species of private
defence, is recognised by all legal systems.  Given the inestimable value
that attaches to human life, there are strict limits to the taking of life and
the law insists upon these limits being adhered to.
‘Self-defence takes place at the time of the threat to the victim’s life, at the moment
of the emergency which gave rise to the necessity and, traditionally, under
circumstances in which no less severe alternative is readily available to the potential
victim’.
(per Chaskalson P in S v Makwanyane and Another 1995 (3) SA 391
(CC) para 138).

[22] Homicide in self-defence is justified if the person concerned
' ... had been unlawfully attacked and had reasonable grounds for thinking that he
was in danger of death or serious injury, that the means he used were not excessive
in relation to the danger, and that the means he used were the only or least
dangerous whereby he could have avoided the danger.'
(R v Attwood 1946 AD 331 at 340).

The test is an objective one.  The question to be answered is whether a
reasonable person in the position of Constable Matumba would have
considered that there was a real risk that death or serious injury was
imminent.

[23] The version of the police is that they announced their presence
and identified themselves as the police after having knocked on the door
of the deceased’s rondavel. The first appellant denied that.  On that
central issue there are two irreconcilable versions.  Whether it can be
accepted that they did in fact identify themselves as the police is an
aspect to which I now turn.  The resolution of that dispute must depend
largely upon inferences from other facts and upon the probabilities
(Union Spinning Mills (Pty) Ltd v Paltex Dye House (Pty) Ltd 2002 (4) SA
408 (SCA) at para 24).  The deceased himself a policeman was
stationed at the local police station. All the members of the SAPS
stationed at that police station would have been known to him.  Had a
caller, in the middle of the night, claimed to be a policeman, the
deceased, would naturally have assumed that it was a colleague from
the local police station where he was employed.  It is overwhelmingly
probable that he would have sought further clarity as to the identity of
the visitor and purpose of the visit.  However, according to the police
nothing like this occurred.  What is plain is that it is highly improbable

that he would have emerged in those circumstances with his firearm at
the ready to confront persons who had identified themselves to him as
policemen.  On this disputed issue the probabilities certainly do not
favour the police.  It must follow that the claim by the police that they had
identified themselves immediately after having knocked on the
deceased’s door accordingly falls to be rejected.

[24] It is common cause that the deceased had no link whatsoever to
the matter being investigated.  When the police heard what sounded like
a briefcase being opened they retreated into the shadows for their own
safety.  Significantly the deceased’s rondavel had no windows.  When
the deceased emerged in the middle of the night with his firearm drawn
a potentially dangerous situation had already been created.  From the
doorway of his hut the deceased would have peered into the darkness.
Indistinct silhouettes would have confronted him.  He had to cognitively
assess what he must have perceived were the dangers that lurked in the
darkness.  Little wonder then that he trained his firearm on Botha when
the latter spoke.  There is nothing in the evidence to suggest that he
posed a danger to the police.  Why in those circumstances Matumba felt
obliged to attack the deceased from behind is unclear and has not been
satisfactorily explained.  Even then the deceased showed commendable
restraint by not discharging his firearm in the face of that unlawful attack.

Instead he sought to ward off Matumba's attack by striking at him with
his fists and employing his firearm defensively.  Outnumbered four to
one it has not been explained why if it was at all necessary to physically
restrain the deceased it could not have been done without resort by
Matumba to his firearm.  Pauer testified that he did not employ his
firearm because he did not believe that the deceased would in fact
shoot.  Before any of the others could enter the fray Matumba had
discharged his firearm four times with fatal consequences.

[25] It bears noting that the onus rests on the police to prove on a
preponderance of probabilities that the shooting of the deceased was
justifiable (Mabaso v Felix 1981 (3) SA 865 (A)). In the ultimate analysis
the police who were burdened with the onus of proof have not
succeeded in discharging it.  The evidence in my view falls far short of
establishing that the deceased was indeed intent on discharging his
firearm.  It must be remembered that the true inquiry is how the risk
would have been assessed by a reasonable person in the position of
Constable Matumba.  The truth is that Matumba’s life was not in danger
and any belief he held to the contrary was not reasonably held.  All of
the factors upon which reliance has been placed, whether taken
individually or cumulatively, are not supportive of the fact that Matumba
was in danger of imminent attack. The decision by Matumba to tackle

the deceased from behind was not only ill-advised and dangerous but
also precipitous and clearly unlawful.  In my view, a reasonable person
in the position of Matumba would have taken steps to properly satisfy
the deceased that they were the police before attacking him.  It is difficult
to avoid the conclusion that Matumba acted in panic both in tackling and
thereafter shooting and killing the deceased.  Whilst that may be
understandable it cannot justify him shooting the deceased.  In my view
a reasonable person in the same circumstances as Matumba would not
have shot the deceased.  It follows that the respondent has failed to
discharge the onus resting on him and that on this leg as well the
appellants must succeed.

[26] In the result the appeal is accordingly upheld with costs and the
order of the court a quo is set aside to be replaced with the
following:

‘(a)
The defendant’s special plea is dismissed.
(b)
The defendant is held liable for the damages, if any, that the
plaintiffs have suffered in consequence of the death of
Charles Makhado Mugwena.
(c)
The defendant is ordered to pay the plaintiffs’ costs
occasioned by this hearing.
(d)
The matter is postponed sine die.’

V M  PONNAN

JUDGE OF APPEAL
CONCUR:
SCOTT  JA
STREICHER  JA
NKABINDE  AJA
MAYA  AJA