Mmolawa v MEC For Human Settlement and Another (1108/12) [2015] ZANWHC 1 (8 January 2015)

Mmolawa v MEC For Human Settlement and Another (1108/12) [2015] ZANWHC 1 (8 January 2015)

The court found that the second defendant's version of events was riddled with contradictions and lacked credibility, particularly regarding the circumstances of the shooting and the number of shots fired. The evidence established that the plaintiff was not armed, was not fleeing arrest in a manner that justified the use of deadly force, and posed no imminent threat to the second defendant at the time of the shooting. The second defendant failed to pursue reasonable alternatives to effect arrest, such as issuing a ticket or relying on police assistance. The force used was excessive and disproportionate to any threat posed. The requirements of section 49 of the Criminal Procedure Act were...

Citation
[2015] ZANWHC 1
Parties
Plaintiff: Seretse Kingsley Mmolawa; Defendant: MEC For Human Settlement; Defendant: Modisane Amiel Mangope
Court
North West High Court, Mafikeng
Jurisdiction
South Africa
Judgment Date
8 January 2015
Case Number
1108/12
Procedural Posture
Civil Trial / Merits Only; Quantum Separated by Agreement
Outcome
The first and second defendants are held liable for 100% of the damages the plaintiff will be able to prove.
Judges
A.M. Kgoele
Legal Topics
Unlawful Shooting, Vicarious Liability, Use of Force in Arrest, Self Defence, Section 49 Criminal Procedure Act
Delict Civil Procedure Unlawful Shooting Vicarious Liability Use of Force in Arrest Self Defence Section 49 Criminal Procedure Act

Case Brief

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Parties

Seretse Kingsley Mmolawa

Plaintiff

MEC For Human Settlement

Defendant

Modisane Amiel Mangope

Defendant

Procedural Posture

Civil Trial / Merits Only; Quantum Separated by Agreement

Legal Issues

  1. 1 Whether the shooting of the plaintiff by the second defendant was unlawful or justified under section 49 of the Criminal Procedure Act.
  2. 2 Whether the second defendant acted within the scope of his employment and whether the first defendant is vicariously liable.
  3. 3 Whether the force used was reasonable and proportional in the circumstances.

Ratio Decidendi

The court found that the second defendant's version of events was riddled with contradictions and lacked credibility, particularly regarding the circumstances of the shooting and the number of shots fired. The evidence established that the plaintiff was not armed, was not fleeing arrest in a manner that justified the use of deadly force, and posed no imminent threat to the second defendant at the time of the shooting. The second defendant failed to pursue reasonable alternatives to effect arrest, such as issuing a ticket or relying on police assistance. The force used was excessive and disproportionate to any threat posed. The requirements of section 49 of the Criminal Procedure Act were...

Court Disposition

The first and second defendants are held liable for 100% of the damages the plaintiff will be able to prove.

Orders

  • The first and second defendants are held liable for 100% of the damages the plaintiff will be able to prove.
  • The first and second defendants are ordered jointly and severally, the one paying the other to be absolved, to pay the costs occasioned by the adjudication of this action.