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IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, BHISHO)
NOT REPORTABLE
Case no: 384/2021
In the matter between:
XOLANI PATRICK LINGANI Plaintiff
and
MINISTER OF POLICE Defendant
___________________________________________________________________
JUDGMENT
___________________________________________________________________
Govindjee J
Background
[1] The after -effects of the Covid -19 pandemic continue to be experienced.
Courts are still seized with matters emanating from the global events which resulted
in a state of national lockdown coupled with emergency regulations that impacted on
the lives of all South Africans.
[2] The plaintiff ’s action for damages is one such example . He alleges that a
rubber bullet, fired wrongfully and unlawfully by an employee of the defendant, struck
and injured his left thigh on 2 April 2020 . The defendant (the Minister) den ies that
any of his employees shot the plaintiff as alleged. It is convenient to summarise the
Minister’s pleaded version of the events as follows:
• The incident took place five days after the level 5 lockdown;
• In terms of the applicable regulations, an enforcement officer was empowered
to order persons at a gathering to disperse immediately, and to take
appropriate action, including arrest and detention, if they failed to do so;
• The plaintiff had gathered in public despite the provision in the regulations;
• The police officers, who were enforcement officers, arrived at the place where
the plaintiff and other persons had gathered unlawfully and asked the plaintiff
and other persons to disperse a few times;
• When they refused to cooperate, the police officers fired warning shots with
rubber bullets away from the plaintiff and other persons;
• In the event that the members of the defendant shot the plaintiff, which is
denied, the shooting of the plaintiff with rubber bullets by the members of the
defendant was lawful in the circumstances.
[3] The defendant admits that it has a duty of care to the plaintiff and members of
the public not to cause undue harm and to safeguard their constitutional rights in the
exercise of their duties. It also admits the contents of the hospital records attached to
the plaintiff’s particulars of claim. This court condoned the plaintiff’s non -compliance
with ss 3 and 4 of the Institution of Legal Proceedings Against Certain Organs of
State Act, 2002 1 on 10 May 2022. Si x months later, an order of court endorsed the
parties’ agreement that the issue of liability be separated from quantum. The matter
proceeded on that basis and turns on the evidence.
Was the plaintiff struck by a rubber bullet fired by an employee of the
defendant?
[4] The probabilities are overwhelming that the plaintiff was struck and injured by
a rubber bullet fired by an employee of the defendant , as pleaded by the plaintiff .
This accords with the evidence of the plaintiff, who heard three shots being fired at
the time of the incident . He later discovered what he described as a one -centimetre
round hole, approximately 1,5 centimetre’s deep, above and behind or to the side of
his left knee. Having realised that he had been shot and injured, the plaintiff
telephoned his daughter, who did not live with him , to take him to the hospital.
Although painful, the injury was seemingly not serious enough for immediate hospital
treatment. In the absence of available transportation, the plai ntiff decided that a visit
to the hospital the following day would suffice. He consumed some pain tablets and
slept. The following day, he received ointment for the wound, which was then
bandaged.
[5] That the plaintiff was shot is supported by the evidence of his son (M[...]), who
was aged 15 at the time of the incident. M[...] had been in the home when he heard
three shots being fired. He had been with his father earlier in the day and there had
been nothing amiss. After he heard the shots being fired, he o bserved the plaintiff,
who had ‘some’ blood seeping from his left thigh. He also saw the hole described by
the plaintiff, and confirmed that this had been bandaged, and that the plaintiff had
taken some painkillers that day.
[6] There is no reason to disbeli eve the crux of the plaintiff’s version, as
supported by his son . Both testified honestly, and credibly, according to what they
recalled from the day of the incident. Importantly, there is also independent support
for their evidence . Dr Ndzabela, a doctor working at Cecilia Makiwane Hospital,
1 Act 40 of 2002.
testified that she had examined the plaintiff at 11h40 on 3 April 2020, the day after
the incident. The plaintiff was able to walk without a limp but mentioned that he had
pain in the region of his left thigh. The injury was not assessed as serious at the time
of examination. The plaintiff informed the doctor that he had been injured by a rubber
bullet fired by a policeman and complained of pain on the left side of his thigh. A
head-to-toe examination was conducted. Dr Ndzabela observed an abrasion on the
lateral aspect of the plaintiff’s left thigh. The abrasi on was of the kind that occurs
when part of the skin is removed, coupled with swelling around the area. The wound
was approximately four centimetres by four centimetres. There was no bleeding and
the skin had been bruised, not penetrated, according to what was observed. The
doctor’s evidence was that there may previously have been some bleeding given the
nature of the abrasion and considering that the skin was not ‘intact’. There was also
no underlying fracture. It sufficed for the doctor to administer Panado for the pain, to
clean the wound with saline , dress it and administer an anti -tetanus vaccination, to
prevent infection, before the plaintiff was discharged. In the doctor’s opinion, what
was observed was consistent with a non-serious injury caused by a rubber bullet ,
from which the plaintiff should have been able to recover fully within five to seven
days. This evidence was not seriously challenged during cross-examination.
[7] The evidence by the plaintiff, M[...] and Dr Ndzabela is such that there can be
little doubt that the plaintiff was injured in the manner described in the evidence, as a
result of a rubber bullet fired by an employee of the defendant. As will become
evident, that assessment is supported when considering the evidence led on behalf
of the Minister. Both witnesses who testified on behalf of the Minister admitted that
two shots had been fired during an incident that occurred in close proximity to the
plaintiff. One of the police officials who fired a shot even admits having done so in
the general direction of the plaintiff . On the probabilities, one of the warning shots
fired was directed towards the plaintiff and struck his left leg, whether directly or via a
ricochet, causing injury.
[8] That disposes of the Min ister’s first basis for defending the matter. As will
become apparent, the Minister’s alternative plea, namely that the shooting was
justified, fails based on an assessment of the evidence led on behalf of the Minister.
Was the shooting lawful in the circumstances?
[9] Sergeant Lubishe (Lubishe) had been one of approximately ten police officials
patrolling Mdantsane on the day in question. Three carried shotguns with rubber
bullets while the others carried pistols containing live rounds. He observed the
plaintiff, who was known to him, and a female drinking a soft drink in the vicinity of a
so-called ‘container spaza shop’ (the shop) , as well as four young men who were
nearby. Other than concern about the implementation of lockdown regulations, the
scene was calm. Lubishe knew some of the civilians he observed and, seated by the
door of the police minibus, exited first through the sliding door. His evidence was that
he had the s ituation under control. He conversed with the plaintiff and the plaintiff’s
companion briefly and requested them to disperse. They ignored him and continued
consuming their soft drink s. Lubishe then turned his attention to the other people,
who were standi ng in front of the shop at that stage. He intended to ask them to
disperse before returning to deal with the plaintiff and his companion. As he did so
he heard two shots being fired and saw everyone disperse.
[10] Of significance was Lubish e’s testimony as to the protocol to be followed by
the police when confronted with such situations. His testimony clarifies what is
expected of members of the police when they seek to control and disperse a crowd
of people. Lubishe confirmed that police officials were traine d to speak to the people
and, if a request to disperse was ignored, to issue a warning before taking any
further action. The warning would inform those concerned that they would be
arrested if they remained uncooperative.
[11] Lubishe’s intention had been to issue such a warning in response to having
been ignored by those in attendance. Significantly, he explained that there had
simply been no time to warn the plaintiff and his companion in accordance with the
established protocol and tr aining. This was as a result of the actions of his
colleague(s) who had seemingly exited the vehicle and fired the shots as Lubish e
was preparing to confront the four young men at the shop. This is fatal to the
Minister’s case.
[12] Lubishe’s immediate reaction in the aftermath of the shooting was to ask his
fellow members whether anybody had been shot, to which they replied that the shots
had been fired on the ground in the opposite direction to where the civilians were
located. Lubishe had understandably not observed the direction the shots were fired.
His back was towards his colleagues and the plaintiff at that stage, so that he also
could not offer evidence to gainsay that the plaintiff had been hit with one of the
rubber bullets fired. When he turned aroun d to face the vehicle, he observed that
three officers, all carrying shotguns, had also exited the vehicle. He could only rely
on the word of his colleagues in support of the Minister’s version that the shots been
fired into the ground away from the plaint iff’s direction. He conceded that more than
two shots might have been fired if this had occurred simultaneously. From his
perspective, the situation had been under control and he would have issued the
arrest warning to the plaintiff had his colleague(s) no t intervened. What caused them
to do so was unbeknown to him and he was surprised when he realised what had
occurred.
[13] Much of Lubish e’s evidence was supported, broadly speaking, by Sergeant
Fani (Fani), the Minister’s final witness. There are some minor discrepancies. While
both agreed that Lubishe had exited the police vehicle, through its sliding door, Fani
testified that four other members of the police, including himself, had also stepped
out. It must be accepted, based on the testimony of Lubi she, that three of these
four, including Fani, carried shotguns with rubber bullets. Even on Fani’s version of
events, two members had discharged their weapons. The reason for this was
explained by Fani . Lubish e had spoken to the plaintiff and the others w ithin the
earshot of Fani and their colleagues. Lubish e had repeated an instruction to
disperse, which had been ignored. Fani’s reason for the shooting was explained as
follows:
‘Because they were supposed to have left there, I then fired a warning shot
[five metres to the left side of the complainant and his companion on the
ground, down] … it is when you try to move people from the place that they
are in at the time … we followed the words uttered by Sergeant Lubishe…’
[14] In essence, Fani, and at least one of his colleagues who was also carrying a
shotgun, had taken the view that there had been enough talk. Despite
acknowledging that he had heard Lubishe warn those present that they would be
arrested if they failed to adhere, he, and the unidentified colleag ue, had decided to
shoot, rather than effect an arrest. The reason for this, he explained, was that the
police ‘must be listened to’. Moreover, he had done so in the direction of the plaintiff,
but some five metres to his side.
[15] Lubishe had control of the scene and the ranking officer, Sergeant Sophethe,
was not called to testify . T he likely inference to be drawn is that Fani and his
colleague took the law into their own hands . Neither Fani nor Lubish e tried to
suggest that the situation warranted departure from the normal protocol. Indeed,
Lubishe’s testimonly, in particular, puts paid to any such suggestion. Fani seems to
have taken umbrage on behalf of Lubish e and fired a shot in the direction of the
plaintiff. Lubishe’s evidence that he had heard that the shots were fired away from
the civilians was contradicted by Fani. Although he maintained that the shot he fired
had not struck the plaintiff , Fani had clearly aimed in the general direction of the
plaintiff, but five metres to his left. He had heard one other shot but could not explain
which of his colleagues had fired it. He conceded that the plaintiff may have been
struck by a ricocheted bullet fired by one of his colleagues.
[16] Even accepting that the shot fired by Fani was five metr es to the side and ,
therefore, did not strike the plaintiff, there is no evidence as to the outcome of the
second shot, accepting for present purposes that only two shots were fired. Neither
Constable Ngonki nor Constable Njuza, the two other members carry ing shotguns,
were called to testify. In the circumstances, t he probabilities favour the plaintiff’s
version that it was the second shot, fired in his direction , that struck him , either
directly or as a ricochet, and caused him the injuries described.
[17] Given the crux of the accepted, material evidence, it is unnecessary to devote
any attention to peripheral issues such as the gender of the plaintiff’s soft drink-
drinking companion, whether the shop was on his pr operty or not and whether he
had been shot inside or outside his yard. The plaintiff’s credibility has been positively
assessed and his events regarding the shooting is broadly consistent with the
established facts. Considering the evidence in its entirety , the plaintiff has made out
his case.
[18] This was hardly the kind of gathering that might have justified deviation from
basic forms of acceptable policing, even allowing some measure of latitude given the
recent onset of the pandemic. The Minister’s employ ees violated their own protocol
and acted in heavy-handed fashion absent any justification for doing so. The conduct
of those present on the day, including the plaintiff in particular, should have been met
with a proper warning of arrest, followed by furth er police action if necessary in the
event of further disobedience. A reasonable person in the position of the Minister’s
employees would have proceeded in that manner.2 By acting as they did, the police
failed to warn the plaintiff of the severity of the situation and opened fire without
justification. There was no proper explanation offered by the Minister regarding that
decision. The senior officer never testified and of the three persons on the scene and
carrying shotguns with rubber bullets, only Fani testified. Even if a warning shot had
been necessary, this , by definition, ought to have been fired safely away from the
civilians on the scene. The inescapable inference , even accepting that Fani’s shot
had been fired wide of the plaintiff, was that one of the other two fired their weapon
in a manner that resulted in the plaintiff being struck by an errant rubber bullet. This
was completely unjustified , so that the altern ative defence offered by the Minister
must fail. In the circumstances, the shooting of the plaintiff has been proved to be
wrongful and negligent. It caused the harm suffered by the plaintiff, for which the
Minister is held liable.
Costs
[19] It has been held that where a plaintiff has been successful in a trial in the High
Court which has proceeded on a separated issue the costs occasioned by the trial,
irrespective of the ultimate outcome in respect of the remaining issues, are
occasioned by the position taken by the defendant and that the defendant should
accordingly bear the costs of that trial. 3 This is the rule which would generally be
2 Kruger v Coetzee 1996 (2) SA 428 (A) at 430E–F.
3 Mkhwanazi v Van der Walt [1995] ZASCA 4; 1995 (4) SA 589 (A) at 595F.
followed where a trial court exercises its discretion in respect of the costs occasioned
by a trial on a separated issue. 4 In the present matter, however, I am unable to
assess the probable quantum of damages which may eventually be awarded. The
evidence confirms that the plaintiff was not hospitalised as a result of his injuries,
although he did receive t reatment for his injuries the day after the incident. The
doctor’s evidence was that he should have recovered fully within a week. Based on
the available evidence, there is a real possibility that the quantum of damages which
may be awarded will fall withi n the jurisdiction of the Magistrate s’ Court.5 In the
circumstances, and following Mpukane v Minister of Correctional Services, I consider
it appropriate for the costs occasioned by the trial on the merits to be reserved for
adjudication by the court call ed upon to determine the quantum of the plaintiff’s
damages.
Order
[20] The following order is issued:
1. The defendant is liable to the plaintiff for such damages as the plaintiff is able
to prove for the harm caused to him as a result of the wrongful and ne gligent
conduct of the employees of the defendant on 2 April 2020.
2. The costs occasioned by the trial in respect of the separated issue of liability
are reserved.
_________________________
A GOVINDJEE
JUDGE OF THE HIGH COURT
Heard: 29 November 2023 and 21 October 2024
4 Mpukane v Minister of Correctional Services [2017] ZAECPEHC 57 paras 25 and following.
5 Ibid.
Delivered: 05 December 2024
Appearances:
For the Plaintiff: Adv L Rusi
Justitia Chambers, East London
Instructed by: Magqabi Seth Zitha Attorneys
Attorneys for the Plaintiff
No 4 Tyrell Road
Berea
East London
Email: mszattorneys@gmail.com
C/o: Bululu Nabo & Xaso Attorneys
39 Arthur Street
King William’s Town
Tel: 043 642 6501
For the Defendant: Adv DV Pitt
Chambers, East London
Instructed by: The State Attorney
Attorneys for the Defendant
Old Spoornet Building
No 17 Fleet Street
East London
Email: VSpondo@justice.gov.za
C/o: Shared Legal Services
No 32 Alexandra Road
King William’s Town