Petersen v Minister of Safety & Security

On 19 July 2002, Justin Petersen (a minor) sustained gunshot wounds to his right leg at Gansbaai near Hermanus, Western Cape. The shots were fired by a policeman during a police operation conducted by Operation Neptune, a task team formed to combat perlemoen (abalone) poaching. Police had arrived to seize at least 20 bags of illegally harvested perlemoen found on a Nissan bakkie with a trailer. After police arrived, a crowd of approximately 200 people gathered. One Crause incited the crowd by asking whether they would again allow the police to take their perlemoen. Following this incitement, the crowd began stoning the police, striking an officer and damaging police vehicles. Police initially fired rubber bullets to ward off the attack but were forced to retreat. When rubber bullets ran out, police fired sharp point ammunition from 9mm pistols into the ground near the crowd. Despite this, the stoning continued until Crause ordered the crowd to stop, allowing police to flee in their vehicles and later return with reinforcements in an armoured Casspir vehicle. The appellant, Justin's mother and natural guardian, sued the respondent for damages. The respondent raised the defence of justification based on necessity.

• Whether the police action which caused Justin's injuries was wrongful
• Whether the defence of necessity justified the police conduct
• Whether the danger to police was real and imminent
• Whether the police had reasonable alternative means of averting the danger
• Whether the means used by police were excessive in the circumstances
• The test and requirements for establishing the defence of necessity in delictual claims

The appeal was dismissed with costs.

Police conduct that causes injury to an innocent person is not wrongful and does not attract delictual liability where the requirements of necessity are established: (1) the police were protecting legal interests; (2) an objective dangerous situation existed that was real and imminent; (3) no other reasonable means existed to avert the danger; and (4) the means used were not excessive in all the circumstances. Unlike self-defence, necessity does not require that the defendant's action be directed at a wrongful attacker - it can affect innocent persons. The test for whether a situation of necessity existed is factual and must be determined objectively. Contradictions between witnesses on immaterial details do not necessarily undermine credibility where the contradictions bear the hallmarks of honest mistakes, are of a kind that may result from erroneous observation in confused situations or defective recollection over time, and where witnesses are corroborated on material facts.

The court noted with approval the statement from S v Oosthuizen 1982 (3) SA 571 (T) that contradictions between witnesses prove only that one is erroneous, not which one, and that contradictions acquire probative value only if the contradicting witness is believed in preference to the first witness. The court observed that not every error by a witness affects credibility - the trier of fact must evaluate the nature of contradictions, their number and importance, and their bearing on other parts of the witness's evidence. The court also commented on the extraordinary bravery it would take to remove perlemoen from eight armed policemen without first forcing them to retreat, supporting the police version of the sequence of events on the probabilities. The court noted that Operation Neptune was a task team formed specifically to stamp out poaching of perlemoen which had become a threatened species, providing context for the importance of the police operation.

This case provides important guidance on the application of the defence of necessity in delictual claims against the state for police conduct. It clarifies the requirements for establishing necessity: (1) objective determination of whether a dangerous situation existed; (2) danger must be real or imminent; (3) no other reasonable means of averting danger; (4) means used must not be excessive in all circumstances. The case demonstrates that necessity does not require the defendant's action to be directed at a wrongful attacker (unlike self-defence), meaning innocent third parties can be affected. It provides guidance on assessing witness credibility where there are contradictions on immaterial details versus core facts, and establishes that police action in crowd control situations involving serious danger to life can be justified even where innocent bystanders are injured. The case also illustrates the practical application of necessity in the context of law enforcement operations against illegal activities (perlemoen poaching) that escalate into violent confrontations.