Dyibishe v Minister of Police (3050/2019) [2023] ZAECMKHC 108 (5 October 2023)

Dyibishe v Minister of Police (3050/2019) [2023] ZAECMKHC 108 (5 October 2023)

The court found, on a balance of probabilities, that the plaintiff was injured by gunshots fired by police officers during a crowd management operation at the Zweni homestead. The defendant's own documentation and admitted evidence established the presence of SAPS and the discharge of ammunition, including rubber and live rounds, in the vicinity and at the relevant time. The defendant failed to provide evidence justifying the use of deadly force under section 49 of the Criminal Procedure Act or to show that the requirements for lawful use of force under the Regulation of Gatherings Act were met. The defendant's plea amounted to a confession and avoidance, but no factual basis for...

Citation
[2023] ZAECMKHC 108
Parties
Plaintiff: Nomsa Dyibishe; Defendant: Minister of Police
Court
Eastern Cape High Court, Makhanda
Jurisdiction
South Africa
Judgment Date
5 October 2023
Case Number
3050/2019
Procedural Posture
Civil Trial / Merits Judgment After Trial
Outcome
Plaintiff succeeded on the merits; defendant held liable for damages arising from the shooting.
Judges
Hartle
Legal Topics
Vicarious Liability, Police Use of Force, Regulation of Gatherings Act, Justification for Deadly Force, Onus of Proof, Public Order Policing
Delict Civil Procedure Administrative Law Vicarious Liability Police Use of Force Regulation of Gatherings Act Justification for Deadly Force Onus of Proof +1 more

Case Brief

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Parties

Nomsa Dyibishe

Plaintiff

Minister of Police

Defendant

Procedural Posture

Civil Trial / Merits Judgment After Trial

Legal Issues

  1. 1 Whether the plaintiff was injured by members of the South African Police Service during a crowd management operation.
  2. 2 Whether the defendant is vicariously liable for the injuries sustained by the plaintiff under the Regulation of Gatherings Act.
  3. 3 Whether the use of force by police was justified under section 49 of the Criminal Procedure Act or section 9(2) of the Regulation of Gatherings Act.

Ratio Decidendi

The court found, on a balance of probabilities, that the plaintiff was injured by gunshots fired by police officers during a crowd management operation at the Zweni homestead. The defendant's own documentation and admitted evidence established the presence of SAPS and the discharge of ammunition, including rubber and live rounds, in the vicinity and at the relevant time. The defendant failed to provide evidence justifying the use of deadly force under section 49 of the Criminal Procedure Act or to show that the requirements for lawful use of force under the Regulation of Gatherings Act were met. The defendant's plea amounted to a confession and avoidance, but no factual basis for...

Court Disposition

Plaintiff succeeded on the merits; defendant held liable for damages arising from the shooting.

Orders

  • The defendant is held liable for such damages as are found to be proven arising upon the plaintiff having been shot by the defendant's members at 1035 Memani Street, Bathurst, on 29 January 2019.
  • The defendant is liable for the costs of the hearing.