Nkosi and Another v Minister of Police and Another (A10/2021) [2021] ZAMPMHC 33 (24 November 2021)

Nkosi and Another v Minister of Police and Another (A10/2021) [2021] ZAMPMHC 33 (24 November 2021)

The court found that the respondents discharged the onus of proving justification for the shooting of the first appellant, as uncontested evidence showed he resisted arrest and produced a knife, creating imminent danger for the police officers. The use of force was found to be reasonable and proportional under Section 49 of the Criminal Procedure Act. Regarding the second appellant, the court held that her arrest was lawful under Section 40, as there was evidence she had committed a Schedule 1 offence and the police exercised their discretion properly. The withdrawal of the pre-trial admission of assault was deemed procedurally sound, as the appellants were aware of the change before...

Citation
[2021] ZAMPMHC 33
Parties
Appellant: Ashwell Sfiso Nkosi; Appellant: Tryphina Ndwandwe; Respondent: Minister of Police; Respondent: Sergeant Kgomo
Court
Middelburg High Court, Mpumalanga
Jurisdiction
South Africa
Judgment Date
24 November 2021
Case Number
A10/2021
Procedural Posture
Civil Appeal / Appeal Against Dismissal of Consolidated Claims for Unlawful Shooting, Arrest, and Assault
Outcome
Appeal dismissed with costs.
Judges
J Mtimunye, M.T Mankge, S.S Mphahlele
Legal Topics
Unlawful Arrest, Use of Force in Arrest, Judicial Admission, Assault by Police, Onus of Proof, Damages for Assault
Civil Procedure Delict Criminal Law Unlawful Arrest Use of Force in Arrest Judicial Admission Assault by Police Onus of Proof +1 more

Case Brief

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Parties

Ashwell Sfiso Nkosi

Appellant

Tryphina Ndwandwe

Appellant

Minister of Police

Respondent

Sergeant Kgomo

Respondent

Procedural Posture

Civil Appeal / Appeal Against Dismissal of Consolidated Claims for Unlawful Shooting, Arrest, and Assault

Legal Issues

  1. 1 Whether the trial court was correct in dismissing the first appellant's claim for wrongful shooting.
  2. 2 Whether the trial court was correct in dismissing the second appellant's claim for unlawful arrest and assault.
  3. 3 Whether the trial court correctly allowed the withdrawal of the respondents' admission of assault from the bar.

Ratio Decidendi

The court found that the respondents discharged the onus of proving justification for the shooting of the first appellant, as uncontested evidence showed he resisted arrest and produced a knife, creating imminent danger for the police officers. The use of force was found to be reasonable and proportional under Section 49 of the Criminal Procedure Act. Regarding the second appellant, the court held that her arrest was lawful under Section 40, as there was evidence she had committed a Schedule 1 offence and the police exercised their discretion properly. The withdrawal of the pre-trial admission of assault was deemed procedurally sound, as the appellants were aware of the change before...

Court Disposition

Appeal dismissed with costs.

Orders

  • The appeal is dismissed with costs.