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Totseka v Minister of Police (402/2020) [2026] ZAECMHC 2 (20 January 2026)

80 Reportability
Delict
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Brief Summary

Delict — Assault — Liability of police for injuries caused during protest — Plaintiff shot by police officer while attempting to leave school premises — Court finds defendant liable for damages.

Comprehensive Summary

Summary of Judgment


1. Introduction


The proceedings were a delictual action for damages arising from an alleged assault in the form of a shooting. The plaintiff, Siphelele Totseka, sued the defendant, the Minister of Police, on the basis that members of the South African Police Service (SAPS), acting within the course and scope of their employment, unlawfully shot and injured him.


The matter came before the High Court of South Africa (Eastern Cape Division, Mthatha) as a trial. By agreement and pursuant to an order granted under Rule 33(4) of the Uniform Rules of Court, the court dealt only with the merits (liability). The determination of quantum (the amount of damages) was separated for later adjudication.


The dispute concerned whether the plaintiff had proved, on a balance of probabilities, that a SAPS member shot him during a school protest, thereby committing an actionable assault for which the Minister of Police would be vicariously liable, and whether any justification existed for the shooting.


2. Material Facts


It was common cause that on 18 July 2019 there was a learner protest at Madala Senior Secondary School concerning the allegedly dilapidated condition of the school infrastructure, including blocked toilets and damaged windows. It was also not in dispute that the protest escalated beyond the school premises to the N2 public road, where traffic was obstructed with stones, foreign objects, and burning tyres, and that police were present at the scene.


It was further not disputed that the plaintiff sustained a serious injury to his right arm consistent with being shot. The medical evidence, accepted as material by the court, recorded a bullet wound to the plaintiff’s right arm, profuse bleeding, severe pain, a significant drop in blood pressure, and a fracture of the humerus. The fact that a gunshot was heard during the relevant events was consistent across the evidence referred to by the court.


The central disputed facts concerned the identity of the shooter and whether a SAPS member, and in particular Constable Velembo, fired the shot that injured the plaintiff. The plaintiff’s version was that after police arrived, he decided to stop participating and went to fetch his schoolbag to leave the school premises. While exiting the school yard, he observed a uniformed police officer approximately 15 paces away pointing a firearm in his direction, after which he heard a gunshot and realised he had been shot.


The plaintiff’s evidence was that he was assisted by a teacher, Mr Vuyani Qalashe, and that he was able to identify the officer involved. According to the plaintiff, he pointed out Constable Velembo to Mr Qalashe as the officer who had shot him. Mr Qalashe’s evidence, as accepted by the court in its material respects, was that he confronted Constable Velembo about shooting a learner, that the constable denied firing and refused to call an ambulance, and that Mr Qalashe later found empty cartridges at the scene which he prevented Constable Velembo from retrieving. Those cartridges were marked in a manner he described, including markings “P15” and “P18,” and were produced in court as exhibits.


The defendant’s version, through Constable Velembo, was that he attended at the school with another officer, that the scene was chaotic, and that he heard gunshots but did not know their origin. He denied shooting the plaintiff and stated there was no way he would shoot a student in those circumstances. Under cross-examination, he accepted that cartridges marked with a “P” belonged to SAPS and asserted that it was the Public Order Police Squad (POPS) that shot the student, not him.


3. Legal Issues


The central legal question was whether the plaintiff had proved, on a balance of probabilities, that he was unlawfully and intentionally shot by a SAPS member, thereby establishing an assault for which the defendant (the Minister of Police) was liable.


A closely connected question concerned the evidentiary evaluation where there were mutually destructive versions: the plaintiff’s identification of the shooter and account of being shot while leaving the premises, versus the denial by Constable Velembo coupled with an assertion that POPS shot the students. This required the court to decide issues of fact (what happened and who shot the plaintiff) and the application of legal standards governing onus, credibility, corroboration, and probabilities in civil trials.


A further legal issue flowed from the delictual framework for assault: once assault is proved, whether any justification existed that could excuse the shooting. The court treated this as part of assessing unlawfulness and justification in the context of the defendant’s pleaded and evidentiary case.


4. Court’s Reasoning


The court approached the matter on the basis that in civil proceedings the plaintiff bears the burden to prove the claim on a balance of probabilities, applying the standard articulated in National Employers General Insurance Limited v Jagers 1984 (4) SA 437 (E). The court framed the inquiry as one in which it had to weigh the competing versions, test them against the general probabilities, and determine whether the plaintiff’s version was more probable and acceptable than the defendant’s.


In relation to assault as a delict affecting bodily integrity, the court referred to the principle that while the plaintiff must prove the assault, once its commission is established the defendant ordinarily bears the onus to prove an excuse or justification, consistent with Mabaso v Felix 1981 (3) SA 865 (A). The court also referred to definitional material indicating that assault entails an unlawful and intentional impairment of bodily integrity (with reference to Snyman and to Principles of Delict), treating the shooting as a paradigmatic infringement of bodily integrity.


A key feature of the court’s evaluation was that the plaintiff was effectively a single witness regarding the moment of the shooting and the shooter’s identity. The court stated that such evidence must be treated with caution, but relied on the statutory position that judgment may be given on the evidence of a single competent and credible witness under section 16 of the Civil Proceedings Evidence Act 25 of 1965. The court then assessed whether the plaintiff’s evidence was sufficiently clear, credible, and corroborated to meet the civil standard.


On the facts, the court considered the plaintiff’s account to be clear and chronological. It found corroboration for the plaintiff’s version from several sources that it treated as materially supportive. First, the fact of the plaintiff having been shot was corroborated by the injuries and medical findings, and by the evidence that a gunshot was heard by other witnesses, including Mr Qalashe and Constable Velembo. Secondly, on the question of the shooter’s identity, the court relied on the consistency between the plaintiff’s identification of Constable Velembo and Mr Qalashe’s evidence that he confronted that officer after the shooting when the plaintiff pointed him out.


The court placed additional weight on circumstantial evidence relating to the empty cartridges found at the scene. It accepted that their presence, together with the attempt by Constable Velembo to retrieve them as described by Mr Qalashe, strengthened the inference that a police officer had fired shots at the scene. The court treated the defendant witness’s admission that “P”-labelled cartridges belonged to SAPS as supporting the inference drawn from the cartridge evidence.


The court further reasoned that Constable Velembo’s evidence that POPS shot the students supported, rather than displaced, the plaintiff’s central allegation that police shot him. The court did not accept that the denial of firing by Constable Velembo displaced the probabilities arising from the plaintiff’s identification, the teacher’s corroboration, and the cartridge evidence. It therefore concluded that the defendant’s version was to be rejected as false or mistaken when measured against the preponderance of probabilities.


In addressing unlawfulness and justification, the court placed significance on the plaintiff’s evidence that at the time he was shot he was carrying his schoolbag and attempting to leave the school premises. On that factual footing, the court characterised the shooting as an unjustified, intentional assault. No persuasive justification was accepted on the evidence before the court.


5. Outcome and Relief


The court found the defendant liable for the plaintiff’s assault and held that the Minister of Police was 100% liable for the plaintiff’s proven damages, with the quantum to be determined separately due to the earlier separation of issues.


The court ordered the defendant to pay the plaintiff’s costs on Scale A, as provided for in Rule 67A read with Rule 69 of the Uniform Rules of Court.


Cases Cited


National Employers General Insurance Limited v Jagers 1984 (4) SA 437 (E).


Mabaso v Felix 1981 (3) SA 865 (A).


Legislation Cited


Civil Proceedings Evidence Act 25 of 1965 (section 16).


Rules of Court Cited


Uniform Rules of Court, Rule 33(4).


Uniform Rules of Court, Rule 67A.


Uniform Rules of Court, Rule 69.


Held


The court held that the plaintiff proved, on a balance of probabilities, that he was shot and injured during the school protest by a member of SAPS, and that the assault was unlawful and intentional. The court accepted the plaintiff’s evidence notwithstanding that he was a single witness on the shooting itself, finding his version clear and sufficiently corroborated by the teacher’s testimony, medical evidence, and circumstantial evidence regarding cartridges linked to SAPS. The defendant’s denial was rejected on the probabilities, and no justification for the shooting was accepted.


Accordingly, the defendant was held 100% liable for the plaintiff’s proven damages, and a costs order was made against the defendant on Scale A.


LEGAL PRINCIPLES


The judgment applied the principle that in civil matters the party bearing the onus must prove its case on a balance of probabilities, and where mutually destructive versions are presented the court must evaluate credibility and probabilities together to determine which version is more probable, as articulated in National Employers General Insurance Limited v Jagers 1984 (4) SA 437 (E).


It applied the delictual principle that assault is an infringement of bodily integrity requiring proof of unlawful and intentional conduct, and that in actions for damages for delicts affecting bodily integrity, once the assault is established, the defendant ordinarily bears the onus to prove a lawful justification (such as self-defence), consistent with Mabaso v Felix 1981 (3) SA 865 (A).


The judgment further applied the evidentiary principle that a court may decide a civil case on the evidence of a single competent and credible witness, in terms of section 16 of the Civil Proceedings Evidence Act 25 of 1965, while recognising that such evidence should be approached with appropriate caution and tested against corroboration and probabilities.

IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, MTHATHA)
CASE NO.: 402/2020
Reportable Yes/No
In the matter between:

SIPHELELE TOTSEKA Plaintiff

and

MINISTER OF POLICE Defendant


JUDGMENT

Cengani-Mbakaza AJ
Introduction
[1] Mr Totseka (the plaintiff) instituted an action against the Minister of Police
(the defendant) claiming damages for the alleged assault. The assault was
allegedly committed by the members of the South African Police Services
(SAPS) who were acting within the course an d scope of the defendant’s
employment.

[2] In these proceeding, the focus is solely on the merits, as the application to
separate the issues was granted in terms of Rule 33(4) of the Uniform Rules of
Court.
The plaintiff’s case
[3] The plaintiff presented the following evidence: On 18 July 2019, the
plaintiff, a Grade 10 learner at Madala Senior Secondary School, assembled for
prayer as per his school schedule. Instead of singing the usual gospel songs, he,
along with his fellow lea rners, initiated a protest concerning the dilapidated
state of the school’s infrastructure. According to the plaintiff, the school toilets
were blocked, and windows were cracked, exposing them to harsh weather
conditions.
[4] The protest proceeded o utside the school premises and along the N2
public road, blocking traffic that was moving in both directions. They placed
stones, foreign objects and burnt tyres. A truck driven by police arrived at the
scene whereupon the learners were teargassed. They ra n inside the school yard
and continued protesting. The police truck left the scene.
[5] While they were singing, a police Avanza arrived. Police officers with
uniform and the name tags on exited the vehicle, with one standing on the
opposite side of the f ence. The plaintiff proceeded to his classroom to fetch his
schoolbag and decided to leave the premises thereafter. He explained that he felt

uncomfortable with the manner in which the protest was progressing, and no
longer wished to participate.
[6] As the plaintiff was exiting the school yard, he saw the police officer at a
distance of approximately 15 paces pointing a firearm at his direction. He then
heard a gunshot towards his direction. He called for help and Mr Vuyani
Qalashe (“Mr Qalashe”), one of the teachers came to assist as he was bleeding
profusely on his arm.
[7] Mr Qalashe asked if he could identify the police officer who shot him and
he answered affirmatively. They went to the location of the police officer. The
police officer who was ident ified as Constable Velembo (“Const. Velembo”)
had moved from his initial spot and was now standing in the middle of the
tarred road.
[8] The plaintiff pointed Const. Velembo to Mr Qalashe who then confronted
him about shooting a student. Const. Velembo den ied firing a shot. Mr Qalashe
asked him to call an ambulance, he refused. Mr Msebenzi, a teacher took the
plaintiff to Mthatha General hospital. After being treated, the medical personnel
advised him to go to Bedford hospital for further treatment.
[9] The wound became septic, after being cleaned at Bedford hospital
requiring further treatment, which he received. The medical report by Dr
Sifumba (“the Dr”) confirmed bullet hole on the plaintiff’s right arm. During
medical examination, his arm was bleeding profusely, and he was complaining

about the excruciating pain. The Dr noted a significant drop in blood pressure
and a fracture of the humerus in the right arm.
[10] In his testimony, Mr Qalashe confirmed that police officers were called
during the protest at the school. He testified that Const. Velembo, denied
shooting the plaintiff despite being identified as the shooter and also refused to
take the plaintiff to hospital or call an ambulance.
[11] After Mr Msebenzi left with the plaintiff to hospital, Mr Qalashe found
empty cartridges at the scene. Const. Velembo attempted to retrieve them, but
Mr Qalashe refused. He identified marks on the cartridges, P15 and P18. The
empty cartridges were presented to the court as exhibits. With this evidence the
plaintiff closed his case.
The defendant’s case
[12] Const. Velembo testified that he went to school with Sergeant Nonti after
hearing about the strike action. They introduced themselves to the students who
were singing at the protest. He described the scene as chaotic with students
throwing stones to road users. He further testified he heard gunshots, however
he did not see where they were coming from.
[13] According to Const. Velembo, upon the vehicle’s arrival at the scene, an
injured student accompanied by the school teacher approached the vehicle,
where he was mistakenly identified as the shooter. He testified that there was

no way he would ever shoot a student under such circumstances. He maintained
that he did not fire the shot that injured the plaintiff.
[14] During cross -examination, he testified that he did not see Mr Qalashe
picking up the cartridges, however, confirmed that P -labelled cartridges belong
to the SAPS. He informed the court that it was Public Order Police Squad
(POPS) that shot the student, not him.
Issues
[15] The issue to be determined is whether the member (s) of the defendant
are liable for assaulting the plaintiff.
The legal framework
[16] In civil proceedings, the plaintiff must, in order to succeed prove his case
on a balance of probabilities. In National Employers General Insurance Limited
v Jagers1, Eksteen AJP (with Zietsman J and Van Rensburg J concurring) held:
‘It seems to me, with respect, that in any civil case, as in any criminal case, the onus
can ordinarily only be discharged by adducing credible evidence to support the case
of the party on whom the onus rests. In a civil case the onus is obviously not as heavy
as it is in a criminal case, but nevertheless where the onus rests on the plaintiff as in
the present case, and where there are two mutually destructive stories, he can only
succeed if he satisfies the Court on a preponderance o f probabilities that his version is
true and accurate and therefore acceptable, and that the other version advanced by the
defendant is therefore false or mistaken and falls to be rejected. In deciding whether
that evidence is true or not the Court will weigh up and test the plaintiff's allegations

1 1984 (4) SA 437 (E) p 440 D- G.

against the general probabilities. The estimate of the credibility of a witness will
therefore be inextricably bound up with a consideration of the probabilities of the case
and, if the balance of probabilities favours the plaintiff, then the Court will accept his
version as being probably true. If however the probabilities are evenly balanced in the
sense that they do not favour the plaintiff's case any more than they do the
defendant's, the plaintiff can only succeed if the Court nevertheless believes him and
is satisfied that his evidence is true and that the defendant's version is false.’
[17] In delictual claims specifically assault, the onus rests on the plaintiff to
prove his case on a balance of probabili ties. Once the commission of assault is
proved, the defendant is burdened with a duty to satisfy the court that the assault
was justified. In Mabaso v Felix2, Wessels JA, (with Diedmont and Trollip AJA
concurring) held,
‘Headnote:
In actions for damages f or delicts affecting the plaintiff's personality and bodily
integrity, such as assault, it is fair and accords with experience and common sense that
the defendant should ordinarily bear the onus of proving the excuse or justification,
such as self -defence. That approach is ordinarily correct and should be followed in
such cases, unless the form of the pleadings in any particular case places the onus on
the plaintiff to negative the excuse or justification…’

[18] In both civil and criminal law, the definit ion of assault is the same. In
his body of work, CR Snyman defines assault as an offence consisting of
unlawfully and intentionally act or omission which results in another person’s
bodily integrity being directly and indirectly impaired or inspiring a bel ief in
another person that such impairment of her bodily integrity is immediately to
take place to him/her. 3 In the law of delict, assault is recognised as actio

2 1981 (3) SA 865 (A).
3 Snyman’s Criminal Law, seventh edition updated by SV Hoctor at p395.

iniurium. It is defined as an infringement of the right to bodily integrity, both
physically and psychologically.4

The court’s analysis of evidence
[19] This court acknowledges that the plaintiff is a single witness regarding
the assault and therefore his evidence should be treated with caution. In this
regard, I am fortified by the provisions of 16 of the Civil proceedings Act 5
which provides that jud gment may be given in any civil proceedings on the
evidence of any single, competent and credible witness.
[20] My observation is that the plaintiff, though a single witness on the issue
of assault gave a clear and chronological exposition of events. Furt hermore,
there is some corroboration in the plaintiff’s evidence.
[21] To be specific, the injuries sustained by the plaintiff, including the
gunshot heard by both Mr Qalashe and Const Velembo, corroborate the
plaintiff’s version that he was indeed shot.
[22] Regarding the identity of the shooter, there is consistency in the
plaintiff’s version which is also corroborated by Mr Qalashe’s testimony who
heard the gunshot, attended to the injured plaintiff and later confronted Const.
Velembo about the incident.

4 JC Van Der Walt and JR Midgley, Principles of Delict 3 ed et 111 para 78.
5 Act 25 of 1965.

[23] Moreover, the circumstantial evidence in Mr Qalashe’s testimony
strengthens the plaintiff’s version that he was shot by a police officer. The
collection of the empty cartridges at the scene, identified with a ‘P’ symbol,
establishes a reasonable inference that the police officer, indeed, shot the
plaintiff and no one else.
[24] Furthermore, Const. Velembo’s admission that POPS (police officers)
shot the students and that the empty cartridges collected at the scene belong to
the police provides credence to the plaintiff’s version regarding the assault.
[25] Resultantly, I find the defendant liable for the plaintiff’s assault which
was intentionally perpetrated by its member, who deliberately fired a shot,
causing severe injuries. At the time he was shot, the plaintiff was carrying his
school bag in an attempt to leave the school premises. Therefore, the events as
explained before this court render the defendant’s actions unjustified.
Order
[26] The following order is issued:
1. The defendant is 100% liable for the plaintiff’s proven damages.
2. The defendant shall pay costs of this action on scale A as set out in Rule
67A read with Rule 69 of the Uniform Rules of Court.

_______
N CENGANI-MBAKAZA
ACTING JUDGE OF THE HIGH COURT
APPEARANCES:

Counsel for the Plaintiff : Adv L. D Halam
Instructed by : Jayiya Ngcaba Attorneys
Mthatha

Counsel for the Defendant : Adv Rili
Instructed by : State Attorney
Mthatha

Heard on : 05 November 2025
Judgment Delivered on : 20 January 2026

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