Smit v Minister of Safety And Security for South Africa (51/2010) [2015] ZAECPEHC 36 (4 June 2015)

Smit v Minister of Safety And Security for South Africa (51/2010) [2015] ZAECPEHC 36 (4 June 2015)

The court found the plaintiff's version of events more probable, supported by the nature and extent of his injuries and the evasive and contradictory evidence of the police witnesses. The plaintiff was assaulted by police officers acting in the course and scope of their duties, and the force used was not reasonable, necessary, or proportional to the circumstances. The defendant failed to discharge the evidentiary onus regarding the justification for the force used. While the plaintiff's conduct was provocative and reprehensible, it did not justify the unlawful assault. Provocation may mitigate damages but cannot exclude liability for assault. The quantum of damages is to be determined in...

Citation
[2015] ZAECPEHC 36
Parties
Plaintiff: Andre Pieter Smit; Defendant: Minister of Safety and Security for South Africa
Court
Eastern Cape High Court, Port Elizabeth
Jurisdiction
South Africa
Judgment Date
4 June 2015
Case Number
51/2010
Procedural Posture
Civil Trial / Merits Only; Quantum Separated
Outcome
Defendant is liable to plaintiff for such damages as he may be able to prove or as may be agreed upon, arising out of the assault upon him on 8 May 2008.
Judges
Pickering
Legal Topics
Unlawful Assault, Damages for Personal Injury, Police Misconduct, Provocation, Quantum of Damages
Delict Civil Procedure Unlawful Assault Damages for Personal Injury Police Misconduct Provocation Quantum of Damages

Case Brief

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Parties

Andre Pieter Smit

Plaintiff

Minister of Safety and Security for South Africa

Defendant

Procedural Posture

Civil Trial / Merits Only; Quantum Separated

Legal Issues

  1. 1 Whether the plaintiff was unlawfully assaulted by members of the South African Police Service acting in the course and scope of their duties.
  2. 2 Whether the force used by the police in effecting the plaintiff's arrest was reasonable, necessary, and proportional.
  3. 3 Whether the plaintiff's provocative conduct mitigates or excludes his entitlement to damages.

Ratio Decidendi

The court found the plaintiff's version of events more probable, supported by the nature and extent of his injuries and the evasive and contradictory evidence of the police witnesses. The plaintiff was assaulted by police officers acting in the course and scope of their duties, and the force used was not reasonable, necessary, or proportional to the circumstances. The defendant failed to discharge the evidentiary onus regarding the justification for the force used. While the plaintiff's conduct was provocative and reprehensible, it did not justify the unlawful assault. Provocation may mitigate damages but cannot exclude liability for assault. The quantum of damages is to be determined in...

Court Disposition

Defendant is liable to plaintiff for such damages as he may be able to prove or as may be agreed upon, arising out of the assault upon him on 8 May 2008.

Orders

  • Defendant is liable to plaintiff for such damages as he may be able to prove or as may be agreed upon, arising out of the assault upon him on 8 May 2008.
  • Defendant is ordered to pay plaintiff's costs of suit to date including such costs as were previously reserved for decision.