Motswana v MEC for Safety and Security (CA&R 147/2005) [2007] ZANCHC 71; 2008 (1) SACR 404 (NC) (28 September 2007)

Motswana v MEC for Safety and Security (CA&R 147/2005) [2007] ZANCHC 71; 2008 (1) SACR 404 (NC) (28 September 2007)

The court found that the police officer, Van Niekerk, was not justified in using a police dog to apprehend the appellant. Although the appellant resisted arrest and attempted to flee, there were other police officers present who could have assisted in effecting the arrest with less risk of injury. The officer deliberately chose to use the dog, knowing its aggressive nature and the likelihood of serious injury, rather than calling for assistance. The use of the dog was not the least injurious means available and thus failed the test of reasonable necessity and proportionality under section 49(2) of the Criminal Procedure Act. The magistrate erred in accepting the respondent's...

Citation
[2007] ZANCHC 71
Parties
Appellant: Thys Motswana; Respondent: MEC for Safety and Security
Court
Northern Cape High Court, Kimberley
Jurisdiction
South Africa
Judgment Date
28 September 2007
Case Number
CA&R 147/2005
Procedural Posture
Civil Appeal / Appeal Against Magistrate's Court Decision on Liability Only; Quantum of Damages to Be Determined Later.
Outcome
Appeal upheld. Magistrate's order set aside. Respondent held liable for damages suffered by appellant as a result of injuries inflicted by the police dog.
Judges
HJ Lacock, LO Bosielo
Legal Topics
Use of Force in Arrest, Police Dog Attack, Section 49 Criminal Procedure Act, Constitutional Rights Dignity, Onus of Proof, Minimum Force
Delict Civil Procedure Constitutional Law Use of Force in Arrest Police Dog Attack Section 49 Criminal Procedure Act Constitutional Rights Dignity Onus of Proof +1 more

Case Brief

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Parties

Thys Motswana

Appellant

MEC for Safety and Security

Respondent

Procedural Posture

Civil Appeal / Appeal Against Magistrate's Court Decision on Liability Only; Quantum of Damages to Be Determined Later.

Legal Issues

  1. 1 Whether the use of a police dog to apprehend the appellant was reasonably necessary and justified under section 49(2) of the Criminal Procedure Act.
  2. 2 Whether the respondent discharged the onus of proving that the force used was proportional and reasonable in the circumstances.
  3. 3 Whether the magistrate erred in finding that the police officer's conduct was justified.

Ratio Decidendi

The court found that the police officer, Van Niekerk, was not justified in using a police dog to apprehend the appellant. Although the appellant resisted arrest and attempted to flee, there were other police officers present who could have assisted in effecting the arrest with less risk of injury. The officer deliberately chose to use the dog, knowing its aggressive nature and the likelihood of serious injury, rather than calling for assistance. The use of the dog was not the least injurious means available and thus failed the test of reasonable necessity and proportionality under section 49(2) of the Criminal Procedure Act. The magistrate erred in accepting the respondent's...

Court Disposition

Appeal upheld. Magistrate's order set aside. Respondent held liable for damages suffered by appellant as a result of injuries inflicted by the police dog.

Orders

  • The order of the magistrate's court is set aside and substituted with an order that the defendant is liable for payment of such damages as the plaintiff may prove to have suffered as a result of the injuries inflicted on him by a police dog at Vryburg on 24 February 1998.
  • Costs will be costs in the cause.