Mdiko v Minister of Police (17042/2009) [2017] ZAWCHC 98 (13 September 2017)

Mdiko v Minister of Police (17042/2009) [2017] ZAWCHC 98 (13 September 2017)

The court found that the defendant failed to discharge the onus of proving that the killing was justified as self-defence. The evidence of the eyewitness Daba was preferred over that of Sergeant Mantashe, particularly regarding the circumstances of the final fatal shot. The court accepted that the deceased had surrendered and no longer posed a threat when he was shot at close range by Mantashe. The act of firing the final shot was grossly disproportionate and unnecessary to protect Mantashe's physical integrity, as the attack had ceased. The defendant is therefore liable for damages arising from the unlawful killing of the deceased.

Citation
[2017] ZAWCHC 98
Parties
Plaintiff: Ntombizake Mdiko; Defendant: Minister of Police
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
13 September 2017
Case Number
17042/2009
Procedural Posture
Civil Trial / Merits Determination
Outcome
Defendant found liable for damages arising from the unlawful killing of the deceased.
Judges
Bozalek
Legal Topics
Wrongful Killing, Self Defence, Onus of Proof, Police Liability, Damages, Unlawful Killing
Delict Wrongful Killing Self Defence Onus of Proof Police Liability Damages Unlawful Killing

Case Brief

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Parties

Ntombizake Mdiko

Plaintiff

Minister of Police

Defendant

Procedural Posture

Civil Trial / Merits Determination

Legal Issues

  1. 1 Whether the defendant's employee, Sergeant Mantashe, acted in self-defence when he shot and killed the deceased.
  2. 2 Whether the defendant is liable for damages arising from the unlawful killing of the deceased.
  3. 3 Whether the final fatal shot was justified under the requirements of self-defence.

Ratio Decidendi

The court found that the defendant failed to discharge the onus of proving that the killing was justified as self-defence. The evidence of the eyewitness Daba was preferred over that of Sergeant Mantashe, particularly regarding the circumstances of the final fatal shot. The court accepted that the deceased had surrendered and no longer posed a threat when he was shot at close range by Mantashe. The act of firing the final shot was grossly disproportionate and unnecessary to protect Mantashe's physical integrity, as the attack had ceased. The defendant is therefore liable for damages arising from the unlawful killing of the deceased.

Court Disposition

Defendant found liable for damages arising from the unlawful killing of the deceased.

Orders

  • It is declared that the defendant is liable to the plaintiff for such damages as she is able to prove arising out of the unlawful killing of her husband, the late Mr Lunga Mdiko, on 31 May 2008.
  • The defendant is ordered to pay the plaintiff's costs in the trial action to date on the party and party scale.