In the matter of Samuel Maimela & Francina Popela v The Makhado Municipality & 1 Other the Supreme Court of Appeal heard an appeal from the North Gauteng High Court (Pretoria), relating to a delictual action for damages which had been brought by the First Appellant in his personal capacity and by the Second Appellant who acted in both her personal capacity and in her representative capacity as mother and sole guardian of her 4 minor children.
The incident which gave rise to the action occurred on 15 July 2002 when the First Appellant and the late husband of the Second Appellant were struck by live ammunition fired by the Second Respondent from a semi-automatic pistol. At the time of the shooting the Second Respondent was employed by the First Respondent and the latter was sought to be held vicariously liable for the former’s actions, it being alleged that when the Second Respondent fired the shots he was acting in the course and scope of his employment with the First Respondent. The Appellant sought damages for his bodily injuries and the Second Appellant sought damages for loss of support suffered by her and her minor children as a consequence of the death of her late husband.
The Respondents pleaded inter alia that the Second Respondent had fired the shots in self-defence during an emergency situation, alternatively that he had acted out of necessity.
Prior to the commencement of the hearing in the Court below the parties had agreed certain common cause facts relating to the circumstances in which the incident occurred, which essentially were that a protected strike had been called by SAMWU over a wage dispute with the First Respondent, which started on or about 2 July 2002 and ended on or about 19 July 2002. It was further agreed that on 15 July 2002 the Second Respondent, acting within the course and scope of his duties,
entered an area where striking workers were present, upon which he was assaulted and sustained certain injuries, whereafter he produced a fire arm and fired several shots. The First Appellant was shot in the face and the late husband of the Second Appellant was shot in the chest and died that same day.
The Supreme Court of Appeal confirmed that a defence of necessity, unlike self-defence does not require the Defendant’s action to have been directed at the perpetrator of an unlawful attack and that it is invoked where the action or conduct of the Defendant was “directed against an innocent person for the purpose of protecting an interest of the actor or a third party (including the innocent person against a dangerous situation)”. The Court further held that whether or not a Defendant’s conduct would be covered by the defence of necessity would depend on all the circumstances of the case. The Court went on to restate the requirements which must be satisfied in order for an act to be justified on the ground of necessity. Dealing with the evidence presented, the Court agreed with the view of the Court below that had the Second Respondent not fired the shots he would in all probability have been killed. The Court went on to hold that the Respondent’s conduct was consequently objectively reasonable and that the defence of necessity was thus correctly upheld by the Court a quo and dismissed both Appellants appeals.
For a full copy of the judgment of the Supreme Court of Appeal click here.
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