Mohofe v Minister of Safety and Security (13078/03) [2005] ZAGPHC 91 (15 September 2005)

Mohofe v Minister of Safety and Security (13078/03) [2005] ZAGPHC 91 (15 September 2005)

The court found that the plaintiff's claim was not prescribed, as the full circumstances giving rise to the cause of action only became known after Sibeko's criminal trial, and the action was instituted within 12 months of that date. On the merits, the court held that Inspector Nemengaya, acting as a police officer, foresaw the risk to bystanders when calling on armed suspects to stop in a crowded area. Although the deceased was killed by a shot fired by Sibeko, the police officer's conduct created a foreseeable risk, and he failed to take reasonable steps to prevent harm. Balancing constitutional rights, public policy, and the need for effective policing, the court concluded that the...

Citation
[2005] ZAGPHC 91
Parties
Plaintiff: Selina Mohofe; Defendant: Minister of Safety & Security
Court
High Courts - Gauteng
Jurisdiction
South Africa
Judgment Date
15 September 2005
Case Number
13078/03
Procedural Posture
Civil Trial / Merits and Special Plea (prescription) Separated; Judgment on Prescription and Merits
Outcome
The defendant is liable for such damages as the plaintiff may in due course prove.
Judges
IW Schwartzman
Legal Topics
Negligence, Vicarious Liability, Prescription, Right to Life, Police Duties, Culpa
Delict Civil Procedure Constitutional Law Negligence Vicarious Liability Prescription Right to Life Police Duties +1 more

Case Brief

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Parties

Selina Mohofe

Plaintiff

Minister of Safety & Security

Defendant

Procedural Posture

Civil Trial / Merits and Special Plea (prescription) Separated; Judgment on Prescription and Merits

Legal Issues

  1. 1 Whether the plaintiff's claim against the Minister of Safety and Security has prescribed under Section 57(1) of the South African Police Services Act.
  2. 2 Whether Inspector Nemengaya, acting in the course and scope of his employment, was negligent and thus liable for the death of the deceased.
  3. 3 Whether public policy and constitutional norms justify imposing liability on the police for harm to innocent bystanders during police operations.

Ratio Decidendi

The court found that the plaintiff's claim was not prescribed, as the full circumstances giving rise to the cause of action only became known after Sibeko's criminal trial, and the action was instituted within 12 months of that date. On the merits, the court held that Inspector Nemengaya, acting as a police officer, foresaw the risk to bystanders when calling on armed suspects to stop in a crowded area. Although the deceased was killed by a shot fired by Sibeko, the police officer's conduct created a foreseeable risk, and he failed to take reasonable steps to prevent harm. Balancing constitutional rights, public policy, and the need for effective policing, the court concluded that the...

Court Disposition

The defendant is liable for such damages as the plaintiff may in due course prove.

Orders

  • The defendant is liable for such damages as the plaintiff may in due course prove.
  • The defendant is liable to pay the plaintiff's costs to date, including those occasioned by the employment of two counsel.