15 BULLETS TO STOP CAR JUSTIFIED
Delict – Justification – Metro police – Attempting to apprehend plaintiff for driving under influence – Firing 15 shots at plaintiff’s vehicle – Plaintiff in heavier and more powerful car and evading police – Posing danger to other users – Shots aimed at tyres – Use of force justified.
Facts: Plaintiff drove his BMW to the Menlyn shopping centre to pick up a girlfriend at midnight. He made a U-turn when his girlfriend called him to tell him that he had passed her. Two metro police officers were patrolling in a Ford Focus and stopped him. One of the officers approached his window and drove away because he says he feared the armed officer. The officers pursued him and one officer fired 15 shots at his car. He was arrested and taken to the station and detained for drunken and reckless driving.
Claim: For R2 million as compensation for compensation for emotional shock, pain and suffering and contumelia. The court deals with the merits.
Discussion: That the officers were issued with 15 rounds of ammunition each and that after the incident, one officer had all 15 round in the magazine and the other had no rounds; the unsuccessful efforts of the metro police to stop his car; that the BMW was a heavy and powerful vehicle; that the officer said that he at first shot one tyre but the BMW had run-flat tyres and continued to evade them; the officer’s testimony that there is no standing order not to fire at a tyre and it was the only reasonable thing to do because the plaintiff persisted in ignoring their requests to get out of the vehicle and was driving recklessly and could cause harm to other road users.
Findings: The plaintiff was intoxicated and the admitted blood test results prove this. The plaintiff crossed a red light and nearly collided with the metro police vehicle and this entitled them to stop him. He drove off and evaded them, driving through three red robots and in the lane of oncoming traffic. The plaintiff was endangering the lives of road users and he had to be stopped. He also had to be stopped at that time for driving under the influence and not traced the next day. The plaintiff committed continuous offences in the presence of the officers and they were entitled to attempt to arrest him according to section 49(2) of the Criminal Procedure Act 51 of 1977. Considering that the BMW was much faster than the Ford Focus and could outrun it and because it outweighed the Ford it could not be rammed. Firing 15 shots at the tyres was justified and lawful. Drunken driving takes innocent people’s lives. A suspect cannot be rewarded for breaking the law.
Order: Plaintiff’s claim is dismissed with costs.
ORGANISATIONAL RIGHTS AND “WORKPLACE”
Labour – Union – Organisational rights – For category of employees instead of place – Meaning of “workplace” – Organisational rights are to be claimed in respect of a place where the employer is situated not a component of a workforce – Labour Relations Act 66 of 1995, ss 21 and 213.
NUMSA v CCMA  ZALCPE 43 at -
Facts: NUMSA has organisational rights in respect of hourly paid employees at the East London premises of Mercedes-Benz arising out of a collective agreement. NUMSA sought organisational rights in respect of the salaried Mercedes-Benz employees who fall within salary bands 6 to 9 (the Group), this being a category of employees instead of a place. When Mercedes-Benz refused to grant the organisational rights in respect of the Group, NUMSA approached the CCMA for relief in terms of section 21 of the Labour Relations Act 66 of 1995 (LRA).
Application: To review the Commissioner’s determination that he did not have jurisdiction to entertain the merits of the dispute. The decisive part of the Commissioner’s ruling was his finding that a category of employees within an employer’s organisation could not constitute a workplace.
Discussion: The ambit and scope of the definition of a “workplace” as envisaged by the LRA; whether a workplace can be comprised of a category of employees; that the NUMSA representative sought to persuade the Commissioner to accept the Group per se as constituting a workplace; and the contention that if NUMSA’s argument were to be accepted, any union with a predatory eye, but no appreciable presence in an employer’s operation, could identify and earmark a particular salary band and demand organisational rights.
Findings: The interpretation of the definition of a workplace advanced on behalf of NUMSA does violence to the clear language of section 213 and the definition of “workplace”. To determine the parameters of a workplace with reference to an internal structure within a workplace such as a bargaining unit, the existence of which is neither compulsory nor permanent, offends one’s sense of logic and is self-evidently fraught with precariousness. When it comes to organisational rights, a workplace is not to be determined with reference to a category of employees, be it a bargaining unit or otherwise. It is the “workplace overall” which matters.
Order: The review application is dismissed.
BANKS AND CONCURRENT JURISDICTION OF HIGH COURT
Civil procedure – Jurisdiction – Bank claims against debtors – Claims falling within jurisdiction of magistrate’s court – Concurrent jurisdiction of High Court – Mandatory jurisdiction principle – Right of access to court – If matter over which it has jurisdiction is brought before it, High Court must exercise that jurisdiction.
Facts: Thirteen matters arose where debtors had taken up mortgages or purchased motor vehicles on credit and had defaulted on repayment. The banks sought default judgment and in the case of mortgages orders declaring the debtors’ residential properties specially executable. In most of these matters the amounts claimed fell within the magistrate’s court’s jurisdiction. The matters came before a full court in terms of a practice directive issued by the Judge President.
Appeal: The full court held that it is an abuse of process of court to institute in the High Court claims that fall within the jurisdiction of the magistrate’s court and the High Court may exercise a discretion to entertain matters over which it has concurrent jurisdiction with the magistrate’s court. The Supreme Court of Appeal (SCA) overturned this decision and the Human Rights Commission appeals.
Discussion: Whether a High Court may decline to adjudicate a matter over which it and the magistrates’ courts have concurrent jurisdiction; the contentions on abuse of process; travel costs and other impediments for debtors of limited financial means; the right of access to court; that many of the cases falling within the jurisdiction of magistrates’ courts which are litigated by banks in the High Court involve foreclosures; and that the SCA relied on sections 21 and 27 of the Superior Courts Act 10 of 2013 and section 169(1) of the Constitution in finding that it was obligatory for the High Court to entertain matters in respect of which it has concurrent jurisdiction with the magistrate’s court (mandatory jurisdiction principle).
Findings: The Commission does not agree with the full court that litigating in the High Court where one could have litigated in the magistrate’s court automatically constitutes an abuse of the process of court. It submits that the High Court must be satisfied in each instance that the litigation is an abuse of process or constitutes an infringement of the right of access to court, in which event it may then not entertain the matter. The law affords the High Court the power to entertain matters in respect of which the magistrate’s court also has jurisdiction. If a matter over which it has jurisdiction is brought before it, it must exercise that jurisdiction. The court notes that legislative steps appear to be afoot such as the Lower Courts Bill (see para ).
Order: The appeal is dismissed. The Registrar must furnish a copy of the judgment to the Minister of Justice.
MADLANGA J (unanimous)
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