A Member of the South African Police Service, Umtata, Inspector Jameson Dingiso shot and killed Mr Sivuyile Sweleka, whom he reasonably suspected of having stolen a motor vehicle. His widow and her two children claimed damages against Minister of Safety and Security as Dingiso’s employer. In his defence, adopted by the Minister of Safety and Security, Dingiso claimed that the killing was justified under s 49(2) of the Criminal Procedure Act 51 of 1977, notwithstanding that the section had been struck down as unconstitutional by the Constitutional Court in the case of Walters on 21 May 2002. In terms of the section as it stood before being struck down the killing was considered to be reasonably necessary if the person killed was suspected of having committed a first schedule offence (of which theft was one) and the killing was necessary to prevent his or her escape.
The SCA had to consider whether Dingiso was entitled to invoke the protection of the section in relation to an incident which happened prior to it being declared invalid.
The SCA ruled that, given that the section was declared unconstitutional with prospective effect, Dingiso was still entitled to rely on it and accordingly dismissed the claims against the Minister of Safety and Security.