IN THE HIGH COURT OF SOUTH AFRICA, MPUMALANGA DIVISION,
(MBOMBELA MAIN SEAT)
Case No.: 408/2023
In the application between:
MXOLISI MAPHANGA PLAINTIFF
And
MINISTER OF POLICE DEFENDANT
____________________________________________________________
JUDGMENT
NGWENYA AJ
[1] The Plaintiff is suing the Defendant for the alleged unlawful shooting that took place
on the 10th June 2022.
[2] In his particulars of claim (“POC”), the Plaintiff alleges that :
DELETE WHICHEVER IS NOT APPLICABLE
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED YES/NO
13 NOVEMBER 2025 ____NGWENYA AJ______________
DATE SIGNATURE
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“On or about the 10 th June 2022 at or near White House Tavern in Mashonamini
Trust at Kabokweni at about 23:45, was in the company of Bheki Manikela and
other various people, the Plaintiff was unlawfully and intentionally shot from behind
through the back right thigh during a raid by members of the South African Police
Services due to the Plaintiff being mistaken for a suspect apparently being pursued
by the police officers.”
[3] He further alleges that, as a result of the unlawful conduct of the Defendant , he
suffered the following damages:
3.1 Pain and discomfort: R 200 000.00
3.2 Scarring and disfigurement: R 100 000.00
3.3 Loss of amenities to life: R 800 000.00
3.4 Loss of earnings R1 000 000.00
[4] He therefore claims a total of R2 100 000.00.
[5] The Plaintiff’s particulars of claim w ere served on the Defendant on the 31 st of
January 2023 and also on the State attorney on the 01st of February 2023.
[6] The Defendant filed its notice of intention to defend on February 8, 2023, and failed
to file a plea.
[7] On March 6, 2023, the Plaintiff delivered a notice of bar on the Defendant. The
latter failed to file its plea despite the notice of bar.
[8] As a result, this matter was heard unopposed.
[9] At the hearing of the action, the Plaintiff made an application in terms of Rule 38(2)
for the admission of expert evidence by way of affidavits. The Plaintiff testifie d in
person.
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[10] The Plaintiff’s testimony in brief is as follows:
10.1 He is 28 years old.
10.2 Not married.
10.3 No children.
10.4 His highest educational grade is grade 6.
10.5 On June 10, 2022, at 12:00 midnight, he was at the Tavern called White
House in Mashonemini. He was wearing a maroon jersey.
10.6 He was shot by a police man who uttered the words that he shot the
wrong guy. He was shot in the knee , and the people around him were
perplexed as to why he was shot. He further testified that he was
hospitalised for 1 month.
[11] I was referred to the clinical records on page 191. According to the clinical records:
11.1 The Plaintiff was admitted to Themba Hospital on the 11th June 2022 at
00:15. The Plaintiff was brought in by the SAPS.
11.2 The medical staff observed that he had sustained a gunshot wound to
the right thigh and that there was an exit and entrance wound.
11.3 On the same day, he was attended to and examined by Dr Chimusoro,
who made the following finding:
11.3.1 Bullet fragments were projected over the right thigh.
11.3.2 Normal aorta.
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11.3.3 Intact iliac vessels.
11.3.4 Patent femoral arteries.
11.3.5 Normal popliteal arteries.
11.3.6 Normal trifurcation.
11.3.7 Clear dorsalis pedis arteries.
11.3.8 No arterial dissection bilaterally.
11.3.9 No early venous filling to suggest formation of
arteriovenous fistula.
11.3.10 No arterial injury.
[12] I now turn to the expert evidence of the orthopaedic surgeon, Dr CK Kousok. The
latter examined the Plaintiff on April 19, 2024.
[13] He formed the following opinion and recommendations:
13.1 The Plaintiff currently complains of pain worsened by cold weather and
on exertion.
13.2 The Plaintiff walks with a foot-drop gait as a result of his injury.
13.3 Both the tibia and personal branches of the sciatic nerves of the right
foot are affected.
13.4 He recommended pan-talar arthrodesis of the right foot.
[14] Regarding pain and suffering he recorded the following:
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14.1 The Plaintiff suffered 3 weeks of acute pain.
14.2 He still experiences right thigh pain.
14.3 He is no longer able to play recreational soccer.
14.4 Injuries sustained will not affect natural survival.
[15] Dr Kousok further found that the Plaintiff is not disabled but has impairment of the
right lower limb.
[16] Now I turn to consider whether the Defendant is liable for the injuries sustained by
the Plaintiff. Considering the uncontroverted evidence of the Plaintiff and the
clinical records, I am satisfied that the Plaintiff sustained the injuries mentioned in
the clinical records and the report of Dr Kousok is a result of the Defendant’s
wrongful and unlawful conduct.
[17] I am also satisfied that there is a causal nexus between the damages suffered by
the Plaintiff and the wrongful and unlawful conduct of the Defendant.
[18] I am also satisfied that the Plaintiff is entitled to damages. The Plaintiff has
claimed an amount of R1 100 000.00 for damages, albeit compartmentalised into
pain and discomfort, scarring and disfigurement and loss of amenities to life. All
of these constitute general damages.
[19] The award of general damages is a matter of discretion and comparison with
previous cases. In Sitimela v Mphara and Another (21719/2010) [2024] ZAGPJHC
240 (29 February 2024), the court award ed an amount of R300 000.00 as
damages. The Plaintiff in that matter suffered severe injuries when he was shot
by police close to the chest and spent many months in hospital. The Plaintiff in
this matter su stained less severe injur ies, as per the report of Dr Kousak , and I
therefore find that a fair and reasonable amount of damages is R175,000.00.