Minister of Safety and Security v Mohofe

On 12 March 2001, Inspector Gerson Nemengaya, a plain-clothes police officer on patrol in Johannesburg, saw three men emerge from a shop he suspected had been robbed. At least two were armed with firearms tucked in their waistbands. As the men fled, Nemengaya announced he was a police officer and ordered them to stop. One suspect, Banyana Sibeko, stopped and fired a shot at Nemengaya, who dived to the ground. The shot missed Nemengaya but struck and killed Johannes Mohofe, an innocent bystander. Nemengaya chased the suspects and eventually shot and arrested Sibeko. Mohofe's mother claimed damages from the State for loss of support, alleging that Nemengaya's negligent conduct in calling out to the suspects caused Sibeko to shoot into a crowd, resulting in her son's death. The trial court found for the respondent, holding that Nemengaya had breached his duty of care and acted negligently, making the State vicariously liable.

• Whether a police officer who announces his presence and orders armed fleeing robbery suspects to stop acts negligently when a suspect fires at him and the shot hits an innocent bystander
• Whether the State is vicariously liable for the death of an innocent bystander killed by a fleeing suspect who fired at a police officer who had announced his presence
• Whether the police officer's conduct satisfied the test for negligence as set out in Kruger v Coetzee
• Whether the police officer took reasonable steps to guard against foreseeable harm while discharging his duty to protect the public and apprehend criminals

The appeal was upheld with costs. The order of the trial court was replaced with: 'The plaintiff's claim is dismissed with costs.'

A police officer who announces his presence and orders armed fleeing robbery suspects to stop in accordance with standard police training and procedures is not guilty of negligence merely because a suspect responds by shooting at him and the shot hits an innocent bystander. When applying the negligence test from Kruger v Coetzee, a court must consider whether a reasonable police officer in the same position would have taken steps to guard against the foreseeable harm. This assessment must account for: (1) the police officer's constitutional and statutory duty to protect the public and apprehend criminals; (2) all reasonably foreseeable possibilities, including that suspects might surrender, escape, or pose further danger to the public; (3) the need for quick decision-making in dangerous situations; (4) whether the officer acted according to training and established procedures; and (5) a weighing of the gravity of different risks against each other and against the utility of the officer's conduct. The assessment must be objective and must not be influenced by hindsight. Where a police officer acts reasonably in accordance with proper training and procedures to discharge constitutional duties, and the alternatives posed equal or greater risks to public safety, the officer is not negligent even if harm results from a criminal's response to the officer's lawful actions.

The Court made important observations about the proper approach to assessing police conduct in delictual claims. Lewis JA noted that no court should be understood to suggest that police officers should be 'supine in the face of criminal activity', cautioning that the logical consequence of holding Nemengaya negligent would be that police must remain silent when confronting armed criminals in busy places, effectively allowing 'criminals to hold sway in any busy place'. The Court also emphasized the importance of not stigmatizing a person as guilty of culpa when they did all that could be expected under the circumstances, citing South African Railways v Symington. The Court observed that where people must make decisions in a second or fraction of a second, and act reasonably even if not choosing the very best course as events later show, they should not be held liable for negligence. The judgment reinforced the warning against 'the insidious subconscious influence of ex post facto knowledge' when assessing whether conduct was negligent.

This case establishes important principles regarding the standard of care expected of police officers acting in the course of their duties when confronted with dangerous armed criminals. It confirms that police officers will not be held negligent merely because their lawful actions in accordance with training and standard procedures provoke a criminal response that causes harm to innocent parties. The judgment balances the constitutional duty of police to protect the public and apprehend criminals against delictual liability for negligence. It emphasizes that courts must assess police conduct objectively, considering the duty to act, the need for quick decision-making under pressure, standard training and procedures, and the totality of foreseeable risks - not just the risk that materialized. The case also reinforces that courts must guard against judging police actions with the benefit of hindsight. It provides important protection for police officers acting reasonably in dangerous and fast-moving situations, ensuring they are not rendered ineffective by fear of civil liability when discharging their constitutional obligations.