Phawe and Others v Minister of Police (1403; 1404/2016; 1405/2016) [2019] ZANWHC 51 (28 November 2019)

Phawe and Others v Minister of Police (1403; 1404/2016; 1405/2016) [2019] ZANWHC 51 (28 November 2019)

The court found that the defendant, having admitted the assault, bore the onus to prove its lawfulness. The evidence established that a court order existed requiring striking workers to remain 500 meters from Botshelo Mills, and that the police conveyed this order to union representatives, who were instructed to inform the workers. The police initially used non-lethal methods (stun grenade, teargas) to disperse the crowd, but only resorted to firing rubber bullets after the situation escalated to lawlessness, including road blockages, arson, and attacks on motorists and police. The court accepted Captain Monoto’s evidence as credible and probable, finding that the police acted reasonably...

Citation
[2019] ZANWHC 51
Parties
Plaintiff: Ben Mohale Phawe; Plaintiff: David Mabuza; Plaintiff: Jan Marcus Phawe; Defendant: Minister of Police
Court
North West High Court, Mafikeng
Jurisdiction
South Africa
Judgment Date
28 November 2019
Case Number
1403/2016; 1404/2016; 1405/2016
Procedural Posture
Civil Trial / Merits Only
Outcome
The plaintiffs’ claims in all three actions are dismissed. Costs are awarded against the plaintiffs.
Judges
N G Laubscher
Legal Topics
Assault by Police, Defence of Necessity, Onus of Proof, Public Order Policing, Damages for Injury
Delict Civil Procedure Assault by Police Defence of Necessity Onus of Proof Public Order Policing Damages for Injury

Case Brief

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Parties

Ben Mohale Phawe

Plaintiff

David Mabuza

Plaintiff

Jan Marcus Phawe

Plaintiff

Minister of Police

Defendant

Procedural Posture

Civil Trial / Merits Only

Legal Issues

  1. 1 Whether the assault by police officials on the plaintiffs was unlawful and wrongful.
  2. 2 Whether the defence of necessity justifies the police's use of force against the plaintiffs.
  3. 3 Whether the police officials acted reasonably and proportionately in the circumstances.

Ratio Decidendi

The court found that the defendant, having admitted the assault, bore the onus to prove its lawfulness. The evidence established that a court order existed requiring striking workers to remain 500 meters from Botshelo Mills, and that the police conveyed this order to union representatives, who were instructed to inform the workers. The police initially used non-lethal methods (stun grenade, teargas) to disperse the crowd, but only resorted to firing rubber bullets after the situation escalated to lawlessness, including road blockages, arson, and attacks on motorists and police. The court accepted Captain Monoto’s evidence as credible and probable, finding that the police acted reasonably...

Court Disposition

The plaintiffs’ claims in all three actions are dismissed. Costs are awarded against the plaintiffs.

Orders

  • The First Plaintiff’s claim under case number 1405/2016, the Second Plaintiff’s claim under case number 1403/2016, and the Third Plaintiff’s claim under case number 1404/2016 are dismissed.
  • The plaintiffs in each of the respective cases are ordered to pay the costs of the defendant on a party and party scale.