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[2025] ZAKZPHC 135
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Mlabe v Minister of Safety and Security (1992/2011P) [2025] ZAKZPHC 135 (17 December 2025)
IN THE HIGH COURT OF
SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE
NUMBER: 1992/2011P
In the matter between:
JABULANI DAVID
MLABE
PLAINTIFF
And
THE MINISTER OF SAFETY
AND SECURITY
DEFENDANT
JUDGMENT
P
C BEZUIDENHOUT J
:
[1]
Plaintiff instituted an action against Defendant claiming damages in
the amount R650 000.00
due to a gunshot wound he alleges he
sustained which originated from a member of the South African Police
Services who fired shots
in the vicinity where he was.
Defendant defends the action. Defendant in their plea pleads
that the police officers
were placed in a dangerous situation and
acted out of necessity and that there were reasonable grounds of
imminent danger resulting.
This was as a result of them
pursuing a certain vehicle.
[2]
At the beginning of the trial the parties however agreed that the
matter will only proceed on
the issue of liability.
[3]
Jabulani David Mlabe testified that he resided at Blaawubosch and was
74 years of age. After
the incident which happened on 12 March
2008 he could no longer be employed. He was 58 years of age at
the time and was employed
at Iscor in Newcastle and had been so
employed for about 8 years earning R7 000.00 per month. On
the day in question
at about 10:45 he was riding his bicycle and was
on his way home from work. He was riding on the left side of
the road going
up the road and the police vehicle was coming from the
opposite direction towards him. While he was still cycling he
was
shot in his right leg. He fell from the bicycle, picked up
the bicycle and people came to assist him. He tore a plastic
bag and placed it around the wound. He was then taken to
hospital. They stopped a private motor vehicle but a police
vehicle took him to hospital.
[4]
The police vehicle was travelling in the opposite direction coming
from the same direction as
the gang which they were chasing.
There were 3 police vehicles. He was struck by a bullet fired
by a policeman at the
back of a police van pointing in his
direction. At that stage the motor vehicle which they had
pursued was already about
20 metres past him. The bullet struck
him on the inside of his right thigh grazing his bone. The
suspects in the motor
vehicle were also firing shots at the police.
Only one of the persons in the suspects vehicle fired.
[5]
After he had been shot one Xaba informed the police who spoke on the
radio to other police.
He stayed in hospital for a period of 3
days. The bullet could not be found. The bullet entered
the inside of his right
thigh and came out at the back and hit a
helmet which was tied at the back of the bicycle. The road was
not very busy at
the time. He stated that he was confused
because he does not understand what the problem with the police is as
a mistake
happened. He was plus minus 40 metres from the police
when the shot was fired. He denied that he was injured by a
suspect
and again confirmed that he saw the gun with the police
officer at the back of the motor vehicle.
[6]
There were certain photographs which were used during evidence and
during cross examination he
stated that they were only taken this
year. It was put to him that the incident happened
approximately 16 years ago and that
the area had changed in the
interim. He stated that there are some new houses but most of
the houses were there before.
He cycled on the road at the
time. He agreed that during 2008 there were no pavements in
that area. The houses there
were not too far from each other.
He accepted that the police officers were pursuing suspects in a
motor vehicle on the said
day. He made a statement to the
police while he was in hospital. He only saw one suspect that
was armed.
[7]
It was put to him that a report was received of a high jacking and
that these people were armed
and dangerous and were going to rob
persons. He replied that this could be. He agreed that
the suspects vehicle was
driving at high speed and that the police
vehicles were pursuing it. It was put to him that it was
disputed that anyone was
at the back of the bakkie and that there
were 3 people seated in front of the bakkie. He disagreed.
He stated
that he could see clearly what was happening.
He testified that he was near the mall at the time on the left side
of
the road. It was put to him that the vehicles had come down
on the right side but made a U-turn and then went north in pursuit
of
the suspects.
[8]
When he was shown photograph B41 he testified that he was travelling
from the bottom of the photograph
on the left up towards the top.
The vehicle was heading down towards section 7 and the motor vehicle
was on the right side
of the photograph. He testified that
there were small speed humps in the road. The vehicle of the
suspects came past
him and he did not see them shoot him. It
was put to him that the police had to take cover, open the door of
their vehicle
to avoid being shot and returned fire. He
responded that means that they were shooting in his direction as he
was going in
the opposite direction on the left side of the road.
It was put to him that the police would say they went in the same
direction
as he did and he responded that they then would have shot
him at the back. He disputed that and stated that they came
towards
him and shot him in the thigh. It was put to him that
the passenger in the back of the suspects vehicle fired after the
vehicle
was turned around and shot in his direction. He
responded that it was improbable as they had passed him coming from
the front.
He denied that he was shot by the suspects shooting
at the police.
[9]
He was adamant that he was shot by a bullet fired by a police
officer. It was put to him
that the police acted in
self-defence when firing the shots. It was put to him that the
suspects vehicle collided with a
cell phone tower, that one was found
in a toilet and also shot at the police when fleeing. He
testified that he had no knowledge
thereof. It was put to him
that one Nkabinde did find him on the roadside and received
information via the radio that an
innocent person was shot. He
replied that unfortunately Mr. Xaba, who witnessed the incident, has
since died.
[10]
After Plaintiff was cross examined it was placed on record by the
defence that the police were going towards
Newcastle and the police
towards section 7 Madadeni. The directions as he testified he
was going and the police was thus
confirmed by the defence.
[11]
One Mr. Neluheni employed by the attorneys Matodzi Neluheni as a
photographer stated that he took various
photographs and gave various
distances that he had noted. He stated that the mall was on the
left side of road on photographs
13 and 14 and in photographs 14 to
26 the mall would be on the right side. In photograph 1 section
7 would be behind him
and the mall at the top of the photograph.
That was the case for Plaintiff.
[12]
The first witness for the defence was Dumisani Joseph Nkabinde who
had been employed by the South African
Police Services for 34 years
and retired on 31 October 2009. He was a Lieutenant Colonel in
charge of the community centre
at Osizweni. He was on his way
from Madadeni Court when he received a report over the radio control
that there was a person
who was injured by police and suspects.
He went to the scene, was stopped by a male, one Mlaba, who was alone
and reported
that during this chase he was injured. He told him
that he was injured by the police. He was surprised how he knew
this as both were shooting. He saw his injury above the right
knee and that it was bleeding and the bullet entered from the
front
to the back of the thigh. He was waiting for the ambulance to
arrive. Mr. Xaba, riding a tractor, stopped.
[13] He
then took Plaintiff to hospital for treatment. He was shown
photograph 17 and indicated that if
one goes up in the photograph it
is towards Madadeni section 7 and if one goes down to Newcastle
Utrecht. He mentioned that
the area in photograph 17 looked
similar to where he found Mr. Mlaba but the paving was not there at
the time. It was not
his duty to look for cartridges but he did
so but failed to find any. He reported it to the Madadeni
police station and made
a statement. During cross examination
he stated that he found Mr. Mlaba on the same side of the road as the
mall. He
could not recall who stopped him. From the time
that he received the report to arriving at the victim was about 3 to
5 minutes.
He stated again that Plaintiff informed him that he
was shot by the police. He stated that the bullet entered from
the front.
It was put to him that there were always houses in
the area which was more or less the same as it was on the photograph.
[14]
The next witness was Captain Elvis Buthelezi also currently retired
who had the rank of Warrant Officer at
the time and the rank of
Captain when he retired. He testified virtually as he was
receiving dialysis. At the time
he was stationed at Osizweni to
investigate crime. On the day in question he was seated inside
a pickup and the driver was
Warrant Officer Mazibuko. He was
seated on the left side and it was a single cab pickup. An
informer was seated between
them. There was no canopy on the
vehicle. There were two police vehicles involved. The
other was also a marked
police vehicle, a kombi. Theirs was not
a marked police vehicle. They were armed with 9mm Z88 pistols.
[15]
The suspects came from the direction of section 7. They were
going towards the south direction which
is Osizweni and they were in
a white Toyota vehicle. They turned around and went in a
direction that they came from back
to section 7. They then
chased them. It was in the Blaawubosch area. In 2008
there were no pavements in the area
as on the photograph. On
the left side the houses were closer to the road that on the right
side. They were travelling
fast and there were two suspects in
the vehicle. The driver and the other one at the left back of
the vehicle. While
pursuing the suspects they struck a big
tree. There were many speed bumps and they must have lost
control of their vehicle.
They then opened fire again.
They first opened fire at the first speed bump and they did not
return fire. At the second
speed bump they lost control and
fired. He opened the left front door taking cover and returned
fire.
[16]
The one at the back of the Toyota Corola was armed and fired.
The suspect fired 2 shots and he fired
3 shots. A kombi came to
assist as back up and the suspects drove into section 7. There
was no other option but to
shoot at each other. He did not see
anybody on a bicycle or on the side of the road. He denied that
there were any
policemen standing at the back of the bakkie.
The suspect fled into section 7, later they caught up with them at a
container
where they left the motor vehicle and fled. They
arrested one of the suspects in a toilet and recovered a firearm and
ammunition.
He made a statement to the police on the same day
and stated that he had to return fire.
[17]
During cross examination he confirmed that the informer was found in
Blaawubosch and sat in the middle of
them in the pickup.
The informer identified the vehicle as that of the suspects. In
the second police motor vehicle
there were a number of police
officers. They were working for crime prevention. He did
not speak to them but Mazibuko
did. He was in the motor vehicle
with the informer when Mazibuko went to speak to them. They
were heading towards section
7. He did not know in what
direction the cyclist was going. When the suspects saw the
marked police vehicle they made
a U-turn going back to section 7 and
then they went after them. When he saw that the suspects made a
U-turn the pickup also
made a U-turn and chased after them. No
suspect was arrested in the area.
[18] He
noticed two persons in the Corolla, one was seated at the back on the
left. He started shooting
while going in the direction of
section 7. The suspects were shooting at the police and the
suspect was shooting with his
arm out of the motor vehicle on the
left side. The motor vehicle of the suspects lost control at
the second hump. It
went off the road and they were then
shooting at each other. The police shot at the suspects when
they lost control of the
vehicle. The Corolla was always ahead
of the police vehicle. He used the back tyre of the pickup as a
shield.
He did not know if Nkabinde received the report that
Plaintiff was shot by members of the South African Police Services.
He fired at the back tire of the suspects vehicle.
[19]
They went to the scene the following day to establish if someone had
been shot. He was shown a statement
and stated that that was
his statement. He was unaware against who in the attempted
murder charge was that the warning statement
was made by him in
2008. He did not see any cyclist when he fired at the
suspects. That was the case for Defendant.
[20]
The parties then wished to submit written argument which was then
done.
[21] It
was submitted on behalf of Plaintiff that Plaintiff was an honest and
reliable witness who answered questions
put to him without delay and
without bias. When he had no knowledge thereof he indicated
that he had no such knowledge.
He stuck to his version
throughout and discharged the onus on him on a balance of
probabilities. It was submitted that the
witness Mr. Elvis
Buthelezi could not clarify various issues as he responded that such
was dealt with by Mazibuko. He confirmed
that they came driving
down on the righthand side of the road which corroborates the
evidence of Plaintiff. When certain
portions of the evidence of
Nkabinde was put to him he elected not to comment. It was
submitted that he was not a reliable
witness and that there was a
case of attempted murder under Madadeni CAS103/02/2008 which was
opened against him. He failed
to answer simple questions and
failed to give straight forward answers.
[22] It
was submitted that the members of Defendant fired shots when it was
not safe to do so. They were
negligent and if they acted
reasonably in the circumstances Plaintiff would not have been shot.
They had a legal duty of
care to take reasonable steps to avoid
causing harm to the public. Considering the surroundings they
ought to have acted
with extreme caution. There were also
members of the crime prevention unit present, a specialised unit and
there is no indication
whether they had fired shots or not.
[23] It
was submitted that the costs of 6 October 2025 were wasted due to the
fact that the witness of Defendant,
Mr. Buthelezi could not attend
court after it had been arranged for him to testify virtually on the
Monday and that accordingly
those costs should be borne by
Defendant.
[24] It
was submitted on behalf of Defendant that the police officers were
pursuing suspects. They were
placed in a dangerous situation by
a threat which had commenced and that they acted out of necessity
under circumstances where
action was required. They acted
reasonably and lawfully and there were reasonable grounds to believe
that there was
actual alternatively imminent danger. It was
submitted that the issue was whether the members wrongfully and
unlawfully shot
Plaintiff and whether there were grounds for them to
fire. It was submitted that no ballistic evidence was submitted
by Plaintiff.
The police acted in self-defence and that
Plaintiff may have inadvertently been shot by the police.
Plaintiff had not presented
irrefutable evidence that he was injured
by a bullet fired from a firearm belonging to the police.
[25] It
was submitted that in the case of Kruger v Coetzee
1966 (2) SA 428A
at 430 E – F the requirements for negligence are set out.
It was further submitted that in terms of section 49 of the
Criminal
Procedure Act the use of force to affect an arrest can be justified
in certain circumstances, that it authorises police
to use force when
necessary. It was further submitted that the defence of
necessity was fulfilled as the requirements therefore
have been
satisfied. It was also submitted that the test of self-defence
was satisfied. I was then referred to various
cases in which an
innocent bystander was shot which it was submitted are persuasive.
I was referred to the Minister of Safety
and Security v Mohofe
2007
(4) SA 125
(SCA) where an innocent bystander was shot and it was held
on appeal that the plaintiff’s claim was dismissed. I was
also referred to the decision of Pietersen v Minister of Safety and
Security 2007 (2) ALL SA 177 (CC) where it was held that members
of a
crowd fired shots at the police, the police returned fire to protect
their lives and that such actions were reasonable and
justifiable.
[26] It
was further argued that the costs of 6 October 2025 should not be
paid by Defendant as the dialysis of
the witness Buthelezi had
changed to Monday from the Tuesday and that the parties were informed
that this was the position.
[27] On
the evidence which is admitted by both parties it is clear that
Plaintiff was on his bicycle and the police
approached him coming
from the other direction. Accordingly the shots which
were fired by the members of Defendant
must have been fired in the
direction of Plaintiff which was cycling towards them. If it
was a shot fired by the suspects
then it would have come from behind
Plaintiff and would have struck him in the back. His evidence
was however clear that
the vehicle of the suspects had already passed
him when he was shot. Considering the positions of the
respective parties
at the time the only inference that can be drawn
is that the police were advancing towards the direction of Plaintiff
when the
shots were fired.
[28]
Plaintiff’s injury is confirmed by the medical evidence and by
the witness Nkabinde that Plaintiff
was shot on the inside of his
right thigh and the bullet exited at the back of his thigh.
This supports his version that
it was one of the police officers
whose shots struck him. If it was a shot of one of the suspects
as I have already mentioned
then they would have fired the opposite
direction to that which the police were approaching and such shot
would have struck Plaintiff
in the back and could not have struck him
in the front of his thigh. It is therefore in my view been
proved on a balance
of probabilities that the shot which was fired
was indeed fired by a member of the South African Police Services who
was acting
within the cause and scope of their employment at the
time.
[29]
Once it has been established that the shot that struck Plaintiff was
fired by a member of the South African
Police Services it has to be
established whether such shot was justified in the circumstances and
further whether there was any
reason for them to fire at the time and
whether there was any negligence on their part. It is clear
from the evidence of
the members of the South African Police Services
who testified, namely Mr. Buthelezi, the only witness by the defence
that he did
not see Plaintiff on his bicycle at the time when the
shots were fired. It is indeed so that Defendants were pursuing
a white
Corolla in which there were certain suspects. However
Nkabinda confirmed that Plaintiff was found on the left side of the
road where he was waiting for an ambulance. It was not disputed
that Plaintiff was on the left side of the road when he was
struck by
the bullet.
[30] It
is also as I have set out above clear that Defendants were travelling
towards Plaintiff when the shots
were fired as is confirmed by the
injuries sustained. Nkabinde could not take the matter any
further as he only arrived at
the scene later but from his evidence
and the evidence of Buthelezi it is apparent that a report was
received that a person was
shot by the police.
[31] As
already mentioned I have been referred to various cases where
innocent bystanders have been shot by a
bullet fired by the police
when they were in pursuit of a suspect. However
each case, in my view, must
be dealt with on its own facts.
It is indeed so that the police are entitled to use the
necessary force
in certain circumstances to make an arrest and that
they are entitled to defend themselves in situations where their
lives are
in danger. In the present case, on
the evidence, which was presented, it appears that two shots were
fired
from the suspects vehicle but there is no evidence that any of
those shots struck the police vehicle or any of the police officers.
It would accordingly on the evidence not appear to
me that there was any threat or imminent danger to their lives
at
that stage except that certain shots were fired in their direction.
[32]
The fact that Buthelezi testified that he did not see Plaintiff on
his bicycle when the shots were fired
clearly indicates that he did
not keep a proper lookout at the time. It was a built-up area
where people were walking and
they should have ensured that it was
safe to fire the shots before they did so. If they had kept a
proper lookout they would
have seen Plaintiff on his bicycle.
[33]
Plaintiff was indeed a good witness. He was an honest witness
who kept to his version throughout cross
examination. He did
not deviate from his evidence at any time and gave a detailed account
of the events on the day in question.
The injury confirms his
evidence. The evidence of Buthelezi was contradictory and at
times he did not answer and stated that
he had no comment. He
also contradicted himself as to where he went to hide when he fired
shots. At first he said behind
the front wheel then later
behind the right back wheel. He stated that they had stopped
the vehicle and had opened the door.
If that was so it was even
more reason for him to have been able to see if there was anyone in
the vicinity.
[34]
The suspects vehicle was in front of Defendant’s vehicle on the
same side of the road, namely the righthand
side. Therefore
shots by the police would have been fired in the direction of
Plaintiff and by firing such shots it struck
Plaintiff on the other
side of the road. This in my view indicates negligence on the
part of the police officers.
[35] In
my view it has been proved on a balance of probabilities that the
shot which struck Plaintiff was fired
by a member of the South
African Police Services and further that it was due to the negligence
of the police. If they kept
a proper lookout they would have
seen Plaintiff on the other side of the road. There was no
threat to their lives at that
stage and that the firing by them was
not necessary at that stage. Plaintiff has accordingly, on a
balance of probabilities,
proved his claim.
Accordingly I find the
following:
1.
Defendant is ordered to compensate
Plaintiff for any proven or agreed damages that he may have suffered
as result of the gunshot
wound.
2.
Defendant is to pay Plaintiff’s costs
including the reserved costs of 6 October 2025.
P C BEZUIDENHOUT J.
JUDGMENT
RESEVED ON:
11 NOVEMBER 2025
JUDGMENT HANDED DOWN
ON:
17 DECEMBER 2025
COUNSEL
FOR PLAINTIFF:
T
P NGCOBO
Instructed
by:
Matodzi
Neluheni Attorneys
c/o:
Angus Findlay & Associates
Pietermaritzburg
Cell:
083 205 0630
Tel:
082 891 5702
Ref:
Mr. Findlay
COUNSEL
FOR DEFENDANT:
T
MANICUM
Instructed
by:
State
Attorney (KZN)
Durban
Tel:
031 365 2542
Email:
KBhagwan@justice.gov.za
Ref:
505/0139/11/M/P23/K.BHAWAN/cet
c/o:
Cajee Sestubi Chetty Inc
Pietermaritzburg