Mkhutyukelwa v Minister of Police (2789/2013) [2017] ZAECMHC 34 (8 August 2017)

Mkhutyukelwa v Minister of Police (2789/2013) [2017] ZAECMHC 34 (8 August 2017)

The court found that the search of the plaintiff was unlawful as it was not based on reasonable suspicion supported by objective facts, but merely on unverified information from an informer. Consequently, the arrest and detention following the unlawful search were also unlawful. The shooting and assault were not justified under the relevant statutory provisions, as the officer was not authorised to arrest and the circumstances did not warrant the use of force. The period of hospitalisation was not treated as unlawful detention, but the subsequent detention in police cells was conceded by the defendant to be unlawful. The plaintiff was entitled to damages for the unlawful arrest,...

Citation
[2017] ZAECMHC 34
Parties
Plaintiff: Thandolwethu Mkhutyukelwa; Defendant: Minister of Police
Court
Eastern Cape High Court, Mthatha
Jurisdiction
South Africa
Judgment Date
8 August 2017
Case Number
2789/2013
Procedural Posture
Civil Trial / Judgment
Outcome
Plaintiff's claim for damages succeeded.
Judges
SM Jolwana
Legal Topics
Unlawful Arrest, Unlawful Detention, Assault by Police, Warrantless Search, Damages Assessment, Constitutional Right to Privacy
Civil Procedure Criminal Law Delict Unlawful Arrest Unlawful Detention Assault by Police Warrantless Search Damages Assessment +1 more

Case Brief

Summary, issues, holding and outcome

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Parties

Thandolwethu Mkhutyukelwa

Plaintiff

Minister of Police

Defendant

Procedural Posture

Civil Trial / Judgment

Legal Issues

  1. 1 Whether the search of the plaintiff without a warrant was lawful.
  2. 2 Whether the subsequent arrest and detention of the plaintiff were lawful.
  3. 3 Whether the shooting and assault of the plaintiff by the police officer were justified.

Ratio Decidendi

The court found that the search of the plaintiff was unlawful as it was not based on reasonable suspicion supported by objective facts, but merely on unverified information from an informer. Consequently, the arrest and detention following the unlawful search were also unlawful. The shooting and assault were not justified under the relevant statutory provisions, as the officer was not authorised to arrest and the circumstances did not warrant the use of force. The period of hospitalisation was not treated as unlawful detention, but the subsequent detention in police cells was conceded by the defendant to be unlawful. The plaintiff was entitled to damages for the unlawful arrest,...

Court Disposition

Plaintiff's claim for damages succeeded.

Orders

  • The defendant is directed to pay the plaintiff R280,000.00 as damages for all heads claimed.
  • The defendant must pay interest on the amount of R280,000.00 at the prescribed rate from fourteen days after judgment to date of payment.