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[2023] ZAFSHC 478
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Moloi v Minister of Police (3178/2021) [2023] ZAFSHC 478 (8 December 2023)

IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
Case
number: 3178/2021
In
the matter between:
KEITUMETSEJOYCE
MOLOI
Plaintiff
And
THE
MINISTER OF POLICE
Defendant
HEARD
ON:
01,02 &
AUGUST 2023
WRITTEN
HEADS OF ARGUMENT DELIVERED ON 11, 23 & 25 AUGUST 2023
JUDGMENT
BY:
DANISO, J
DELIVERED
ON
:
08 DECEMBER 2023
[1]
In this action, the plaintiff claims damages against the defendant
for the head and ankle injuries she sustained
on 20 January 2020
during a service delivery protest in Rakitla’s street situated
in Phuthaditjhaba where she resides. The
claim is predicated on the
allegations that the cause of the injuries is the rubber bullet that
was unlawfully and/or negligently
discharged by the defendant’s
employee, a members of the South African Police Services (the
police).
[2]
The defendant denies that the plaintiff was shot by the police let
alone injured by a rubber bullet alternatively,
if indeed she was
injured by a rubber bullet, it is the defendant’s case that the
plaintiff was not shot at Rakitla street
but at Mampoi road where she
was part of the rioting group which the police sought to disperse by
firing rubber bullets to restore
public order in that case, the
shooting was justified. In the further alternative, liability is
disputed on the grounds that the
plaintiff contributed to her own
injuries by standing within the crowd of protestors thereby placing
herself in danger of being
shot.
[3]
The brief background is as follows: on the early morning of 20
January 2020 about 400 to 500 members of the
community armed with
stones and sticks embarked on a protest against lack of service
delivery which turned violent. The roads,
in particular the main road
known as Mampoi road was barricaded with stones, shops in the
vicinity were looted and vandandalized.
A vehicle was also
overturned and set alight. In order to quell the riots, police fired
rubber bullets and also arrested some of
the rioting protesters.
[4]
By agreement between the parties, the only issue that I had to
determine was the merits of the claim. Quantum
was stayed over for
later determination.
[5]
The plaintiff gave evidence in support of her claim and also called
Mr. Mohlominyana Daniel Thomas Matabula
as her witness. On the other
side, Lieutenant Colonel Ntauleng Margaret Motaung, Sipho Collen
Zwane and Captain Senya Johannes
Molema testified for the defendant’s
case. In addition, a photo album of the aerial photographs of the
township and the video
footage taken during the protests were handed
in as evidence by agreement as Exhibit “A” and “B”
respectively.
[6]
The plaintiff testified that on the morning of the incident, around
8h00 a message was circulated on the community
WhatsApp group about a
“strike.” There was also mention of a vehicle that was
set on fire by the protesters somewhere
by the hotel in Mampoi
street. She decided to go and see for herself what was happening. On
arrival at Mampoi road she found other
community members already
congregated at the bus stop watching the burning vehicle. The police
drove past travelling in a Nyala
and after passing them they fired at
them with rubber bullets. This happened about three times they
ultimately decided to leave
the bus stop. They went to Mr Twala’s
house which is on the same street as her home but only a few minutes
from the bus stop
to seek shelter.
[7]
About 30 minutes later two police officers came and ordered everybody
out of Mr Twala’s house including
children. They were taken
back to Mampoi street and placed into the two Nyalas that were parked
there.  They were released
after one of the children suffered a
panic attack. The police were still firing randomly towards all
directions when she began
to walk back home on Rakitla street.
[8]
The plaintiff further stated that a police officer approached from
the opposite direction firing shots at
a fleeing protester who was
running towards her. After feeling something hitting her on the
forehead, she collapsed and lost consciousness.
When she regained
consciousness her face was full of blood. She tried to stand up but
could not. When she looked down at her legs
she realized that her
right ankle was broken. She does not know what caused the injury.
People came to assist her and took her
to Mr. Twala’s home
where an ambulance was called. She was transported by the ambulance
to Manapo hospital where she received
treatment for an abrasion on
her forehead and a fractured right ankle.
[9]
It was her testimony that she did not participate in the protest
therefore there was no reason for the police
to shoot her.
[10]
Under cross-examination she confirmed that she left home knowing very
well that there was a complete shut-down in the
area resulting from
the violent protest and that the police would be involved to control
the unruly crowd. When asked whether she
was not scared of the
violence that had erupted her response was that, she was wanted to
see what was happening with her own eyes.
[11]
Matabula testified that due to the explosive nature of the of the
protest, he left home to look for his wife and children
and sent them
home for safety. He thereafter went to the bus stop and found the
plaintiff there with the other community members
watching the burning
vehicle. He corroborated the plaintiff’s version that she did
not partake in the protest and that after
the shootings continued
they all sought shelter from Mr Twala’s residence. The police
came and ordered them back to Mampoi
street where they were divided
into two groups and placed in two Nyalas. The plaintiff was in
another Nyala and moments later she
was released together with the
community members that were in that Nyala. Matabula and those who
were with him in the second Nyala
were taken to the police station
and that was the last time he saw the plaintiff. He did not see how
and when the plaintiff was
shot.
[12]
Under cross-examination he conceded that the police fired rubber
bullets at them whilst they stood at the bus stop in
order to
disperse them because they thought they were protesters.
[13]
With regard to the defendant’s case, Colonel Motaung is the
unit commander of the Public Order Policing unit of
the South African
Police Services (“POP”) which mainly deals with protest
control for the Phuthaditjhaba area.
[14]
It was her testimony that earlier on the day of the incident, she
received a report about a group of about 500 protesters
looting and
vandalizing shops at the Mampoi road. A police Nyala was dispatched
to Mampoi road thereafter the police reported that
the roads were
blocked, the protesters were throwing stones and also burned a
vehicle next to the liquor shop.
[15]
She stated that the police’s duty is the take control of the
situation by dispersing the crowd and arrest those
who do not comply.
As a result of the Tatane
[1]
incident, police are now using the so called “reduced rubber
bullets” to disperse protesting crowds and to ward off
the
protesters’ attack on the police. Due their reduced strength,
the impact has also been reduced in the sense that they
do not cause
severe injuries but just a scratch therefore, the injuries that the
plaintiff alleges to have sustained could not
have been caused by the
rubber bullets used on the day of the incident. No report of any
injuries was filed relating to those protests
and according to her
information, no police members were ever at Rakitla street as there
was no protest taking place in that area
but at the main road, Mampoi
road.
[16]
She was adamant that if a protester is identified as having played a
role in pelting stones and damaging property, police
are entitled to
arrest them including to chase them until they catch them.
[17]
Zwane is a videographer, he is also employed at POP. His duties
involve video recording of protests incidences. On the
day of the
incident he was at Mampoi road. He arrived there shortly after 10h00
and went about recording what was happening. The
voice narrating the
situation was his and the time that he mentioned was 11h33.
[18]
He told the court that, the police were confronted with violent
scenes as it can be seen on the video footage 2,4, 11
and 14. The
street is barricaded with stones, there is smoke bellowing, shops
were vandalized and looted and there was a huge number
of protesters
still milling around.
[19]
It was pointed out to him by defence counsel that the provided videos
had no dates and time stamp. His response was that
two video cameras
were used on that day, the one that he was using did not have those
features.
[20]
Captain Molema is also stationed at POP as a Platoon commander. On
that day he was on duty and around 8h00 he went to
Mampoi road in
response to the report of a violent protest action. On arrival he
found a group of between 400 to 500 protesters
had barricaded the
street and a business vehicle had been set alight. The crowd was
unrelenting as a result rubber bullets were
discharged to disperse
the rioting crowd and to bring order.
[21]
He corroborated Colonel Motaung’s version that only reduced
rubber bullets were used on that day and that these
rubber bullets
lose their power within a 100-meter radius thus they have no power to
cause a bleeding injury let alone the injuries
allegedly sustained by
the plaintiff.
[22]
Captain Molema insisted that at all material times the police were at
Mampoi street where the protest was taking place.
He did not see any
police entering the streets specifically Rakitla street either on
foot or in the Nyalas. In fact, a Nyala cannot
enter in such a
street. That was in short the evidence relayed on behalf of the
respective parties.
[23]
A shooting constitutes an assault, it infringes a person’s
bodily
integrity which is
prima
facie
unlawful
and once the infringement is proved the police must prove
justification.
[2]
The
plaintiff’s onus on the plaintiff to make out a
prima
case
to prove
the
infringement on a preponderance of probabilities namely that, the
conduct of the police caused the injuries she sustained with
the
result that she suffered the damages for which compensation is
sought.
[24]
Having regard to the evidence proffered for the plaintiff’s
case, I am not persuaded that the plaintiff has discharged
this onus.
Except
for the plaintiff’s insistence, no evidence has been proffered
either to prove that the object which struck her was
a rubber bullet.
Her witness, Matabula did not see when and how the plaintiff was
shot. The allegation that she was injured by
a rubber bullet is also
not borne out from the hospital admission records. Under
Clinical
Information,
[3]
it is recorded that the plaintiff “
fell
on her right ankle and hit (illegible) her forehead on the ground
.”
[25]
It is also important to point out that the defendant’s version
that the rubber bullets used by the police on that
day have no power
to cause such injuries let alone render a person unconscious were not
controverted by evidence to the contrary.
The onus is on the
plaintiff to prove that the injuries she sustained were caused by the
effects of being shot by a rubber bullet.
[26]
Even if I were to be charitable and accept that despite these
shortcomings in the plaintiff’s evidence she might
have been
shot with a rubber bullet, her assertion that she was not part of the
protest does not assist her case because on her
own version, she left
the sanctity of her home fully aware of the riotous nature of the
protest. She chose to go and place herself
in that volatile situation
just for the sake of satisfying her curiosity to this end,  I am
aligning myself with the conclusions
in
Lehlehla
v Minister of Police
[4]
where
it was held that by placing herself in the area of protest the
plaintiff voluntarily assumed risk of being injured.
[27]
The plaintiff’s reliance on
Nkoane
v Minister of Police
[5]
is in my view unsound. As opposed to the facts of this matter, the
accepted evidence in
Nkoane,
was
that
Nkoane
was not
a bystander caught in the midst of a violent protest. She was shot on
her way to the shop about 400 meters away from where
the protest was
taking place and by the police who had chased the protesters into her
residential area.
[28]
In conclusion, I find that having regard to the facts of this matter
the plaintiff has not succeeded in proving that
the injuries she
sustained on 20 January 2020 are attributable to the conduct of the
police. It thus follows that no liability
can be imputed to the
defendant. The claim has to fail.
[29]
I make the following order:
ORDER
1.
The plaintiff’s claim is dismissed with costs.
N.S.
DANISO, J
APPEARANCES:
Counsel
on behalf of the plaintiff:
Adv.
L. LER. Pohl SC
Instructed
by:
Honey
Attorneys
BLOEMFONTEIN
Counsel
on behalf of the defendant:
Adv.
T. Ntoane
Instructed
by:
Office
of the State attorney
BLOEMFONTEIN
[1]
Mr.
Andries Tatane was killed on 13 April 2011 after being shot with
rubber bullets by the police.
[2]
Malahe
v M
inister
of Safety and Security and Others
1999 (1) SA 528 (SCA).
[3]
Page
3 of the trial bundle.
[4]
(13151/2014) [2022] ZAWCHC 235; [2023] 1 ALL SA 438 (WCC).
[5]
Delivered by this court on 30 January 2023 under case number
(3920/2020)
[2023] ZAFSHC 33.