2
1. On the 07 th of February 2022 at Barberton Community Clinic, there was a
community protest. The South African Police Service (“SAPS”) was called in to
maintain peace and order and to prevent loss of life and property.
2. The Plaintiff was shot by the SAPS four times with rubber bullets on her back.
She was further arrested and detained for four days. She is now suing the Minister of
Police for unlawful arrest, detention and assault.
3. She is claiming the sum of R1 000 000.00 for deprivation of liberty, discomfort,
humiliation, degradation and injury to her good name as well as infringement of her
privacy under the claim for unlawful arrest and detention.
4. She is further claiming R2 500 000.00 for impairment of dignity, pain and
suffering, discomfort, contumelia, loss of amenities of life, psychological trauma and
adverse effects on her health under the claim for assault.
Defendant’s testimony – Warrant officer Mnisi
5. As per the law of procedure in claims for unlawful arrest, the Defendant testified
first. Its only witness was Warrant officer Mnisi. Warrant officer Mnisi testified as
follows:
5.1 He has been a warrant officer for 22 years. He has been trained as a
Public Order Officer. His training included skills on how to handle a
rioting community.
5.2 He is stationed at Barberton. However, at the time of the incident he was
based in Hazyview.
5.3 He was deployed in Barberton to deal with the community protest. When
he and other members arrived in the area , they observed a lot of
community members outside the Barberton Community Clinic Health
Centre.
3
5.4 He and his team noticed that the entrance to the clinic was barricaded
with stones and burning tyres.
5.5 They tried to speak sense to the community , but the latter did not want
to cooperate and threw stones and bottles towards his team.
5.6 In response, his team used stun grenades and rubber bullets to disperse
the crowd.
5.7 According to him, the team succeeded in dispersing the crowd, and also
succeeded in preventing damage to the clinic.
5.8 When asked why they used rubber bullets, he testified that they wer e
confronted with stones and bottles and therefore , had to dis perse the
crowd and prevent the burning down of the clinic.
5.9 When asked where were the rubber bullets directed at, he testified that
they were directed at the entire crowd.
5.10 Significantly, when asked why the Plaintiff was shot at the back. He
responded that he did not know.
5.11 He was further asked the question whether a dispersing crowd remained
a threat or not, he said no as the crowd can disperse but then regroup.
5.12 When asked whether he saw the Plaintiff when the crowd was
dispersing, he said no because it was at night.
5.13 When asked about when was the first time he saw the Plaintiff, he
testified that he found her where she was l aying down injured, and
concluded that she was one of the protesters.
5.14 When asked about the procedure when a suspect is injured. He testified
that he called an ambulance to transport the Plaintiff to hospital.
4
5.15 He further testified that he did not handcuff the Plaintiff , but only
explained her rights and put her in the police van while waiting for the
ambulance.
5.16 The ambulance arrived after 12 midnight and the Plaintiff was taken to
the hospital. The incident happened on Friday evening and the Plaintiff
was hospitalised until the following Thursday.
5.17 When asked as to why the Plaintiff was handcuffed and placed under
police guard at the hospital. He testified that it was to prevent the Plaintiff
from escaping from police custody or preventing people from aiding and
abetting an escape.
5.18 He testified that the Plaintiff could not be brought to Court because the
roads to the Courts were barricaded.
5.19 The Court asked warrant officer Mnisi whether the Plaintiff was a threat
or not. He testified that he could not say that she was a threat.
5.20 Follow up questioning by counsel was why he arrested her when she
was laying on the ground. He testified that he was convinced that the
Plaintiff was one of the people that fled from the protest.
6. Under cross examination he testified as follows:
6.1 It was put to him that the Plaintiff was not part of the protesters. He
answered that he believed she was.
6.2 It was further put to him that the arrest, detention and assault was
unlawful. He disputed the proposition.
6.3 It was put to him that the SAPS acted negligently and excessively and
that the shooting was unnecessary. He responded that they had to
5
disperse the crowd because it was throwing stones and bottles and
wanted to burn down the clinic.
6.4 When asked what the purpose of an arrest is, he responded that the
purpose is to bring the Plaintiff to Court to explain why she was found
committing an offence. Counsel then put to him that the Plaintiff was not
brought to Court. He responded by saying that he could not comment
as he had handed the Plaintiff to the Charge Office.
6.5 It was further put to him that the Plaintiff testified that she was shot at
close range. He responded that he had no comment.
6.6 He was then asked about the standard procedure when using rubber
bullets. He responded that they have to first shoot down to the ground
so that the bullet ricochets to the crowd. A f ollow up question from
counsel was: from what distance ? He responded that between five to
ten meters. He further mentioned that they are permitted to shoot within
that distance, but pointing the firearm to the ground.
6.7 When it was put to him that the Plaintiff was shot directly. He said yes ,
it is possible especially when a person falls to the ground.
6.8 It was put to him that the Plaintiff will testify that she was shot while on
the ground and far from the protest. He responded that he could not
comment as he merely arrested the Plaintiff. He further agreed that
rubber bullets can cause harm when shot at close range.
6.9 It was further put to him that the Plaintiff will testif y that she was not a
threat. He disputed that and said the Plaintiff was not shot at her house.
6.10 When he was asked exactly where the Plaintiff was shot, whether it was
at the clinic or somewhere else. He responded that he had no comment.
6
6.11 When it was put to him that he is speculating that the Plaintiff was part
of the protest. He responded that he did not see the Plaintiff prior to the
injury.
6.12 It was put to him that the assertion that she was part of the protesting
crowd is speculation. He responded that he was sure that she was part
of the protesting crowd.
6.13 It was put to him that the Plaintiff was shot 450 meters from the scene.
He conceded, but qualified it by saying that she might have ran from the
vicinity of the protest and collapsed.
6.14 It was further put to him that the Plaintiff was not part of the protest and
that she was going in a different direction to see a friend. He said no she
was found hiding.
6.15 It was further put to him that the Plaintiff will testify that he shot her. He
responded that that is not true because during the inspection in loco, she
said something different. For instance, she said she was shot by Officers
who came from different directions.
6.16 When the Court put it to him that the Plaintiff was still shot by the SAPS.
He said he had no comment.
6.17 He was further shown that the J88 indicated that there was a 3
centimetre deep wound and 5 centimetre deep wound on the buttocks of
the Plaintiff and that four rubber bullets were removed.
6.18 A follow up question was: what was the distance when the rubber bullets
were fired? He responded that it was 10 metres.
6.19 When he was asked whether persons who turned their back s are still a
threat or not . He said no, but insisted that it is possible that when they
turned their backs the SAPS was already firing shots.
7
6.20 It was put to him that it is unlawful to shoot at a fleeing suspect, he
conceded, but further said there were many suspects , and they would
not know at what point the Plaintiff turned around to flee.
6.21 When asked whether the Plaintiff was armed when they found her. He
said no.
6.22 When he was asked whether other protesters were armed or not. He
said they were armed with bottles and stones , and that he did not see
the Plaintiff as they were throwing stones at them.
6.23 It was put to him that as the Plaintiff was not found armed, she was not
a threat. He responded that that is not true. But later conceded that she
could not be a threat as she was laying down.
7. In re-examination he testified as follows:
7.1 He was asked whether it is necessary to see a perpetrator throwing
stones in a violent situation. He said yes , but the incident in question
happened at night.
7.2 When asked what the risk was. He said the risk was towards the clinic.
7.3 When asked what offence the Plaintiff was suspected to have committed
when she was arrested. He said public violence and damage to property
and traffic violation.
7.4 When asked what made him arrest the Plaintiff. He said because of the
rubber bullets injuries, he concluded that she was part of the protesters.
7.5 When asked whether the Plaintiff was found far from the incident or not.
He responded that she was found where the other group of protesters
ran towards.
8
7.6 When asked whether it is easy or difficult to determine whether she was
an active participant or not . He said it was not difficult because of her
injuries.
7.7 When asked whether police shot down as per procedure. He said he
could not comment.
7.8 When asked whether it is possible that four ricocheting bullets can hit
one person. He said it is possible because the bullet casing may contain
three or four balls.
7.9 When asked whether he shot the Plaintiff or not. He said no, the Plaintiff
does not know him because he only saw her during the arrest.
7.10 When asked whether the threat had been eliminated. He said no
because others may not have stopped or have fled the scene.
Plaintiff’s testimony – Gininza Fikile Angel
8. Under examination in chief, the Plaintiff testified as follows:
8.1 She is a farm worker and a traditional healer.
8.2 She was shot by the SAPS on the 07th of February 2020.
8.3 She was going to a traditional healer ’s ceremony and had to pass by a
friend’s place. As they were walking between house passages, the
SAPS came behind them between trees in the nearby houses and
started shooting and she fell in a bushy area.
8.4 While she was still laying on the ground the SAPS came and shot at her
at close range. When she asked the SAPS Officer why she was being
shot, the latter said she was part of the protest. She informed the SAPS
9
Officer that she was not part of the protest and that she was going to her
friend’s place. However, the SAPS Officer continued to fire shots against
her body.
8.5 Thereafter, the SAPS Officer picked her up and walked behind her. He
took her to the SAPS van and the van made many rounds in the township
before she was taken to the station where she was charged at around
23:40.
8.6 At the station, the SAPS Officer started writing a statement and told her
that she was being arrested.
8.7 Because she was bleeding profusely she was then taken to the hospital
in the morning around 08:00.
8.8 At the station, she was handcuffed and was further handcuffed in
hospital for four days. After four days, she was told that there is no case
against her and that she should go home. She was at the hospital from
the 08th of February 2020 to the 13 th of February 2020, and she did not
appear in Court.
8.9 She was shot at the back and photos of the back injuries were taken by
a friend.
8.10 The injuries ha ve caused her to experience severe pain in winter , and
cannot bend easily to lift objects. She further cannot control her urine
because of abdominal pain. In addition, the injuries have affected her
traditional healer duties as she now needs assistance and must pay the
person assisting her.
8.11 The scarring on her body has caused her embarrassment and has
affected her love life as partners question her about the scars.
Furthermore, the community has lost trust in her as she is seen as a
criminal.
10
8.12 Regarding the amount she is claiming, she mentioned that the amount
is justified because she has lost strength to perform her duties and
cannot perform her duties like before.
8.13 When it was put to her that the SAPS contends that she was hiding, she
denied that and reiterated that she was going to a friend’s place.
9. Under cross examination she testified as follows:
9.1 When it was put to her that she had said she was on her way to see a
friend and not a ceremony, she said yes, but after picking up the friend
they were going to proceed to the ceremony.
9.2 She was referred to page 077-56 ( Plaintiff’s affidavit) and she
disavowed it because she said it was not read back to her. She said she
was only asked to sign it.
9.3 Counsel for the Defendant asked her whether the SAPS emerged from
the bushes and she said yes , around the houses where there were
mango trees.
9.4 When she was asked whether she saw the protest or heard any
gunshots, she responded that she did not see anything along the route
she was taking and also did not hear any gunshots.
9.5 When she was asked whether she heard people running , she said yes,
she heard noise and people running on the main road.
9.6 When it was put to her that people ran in different directions , she
responded that along her direction no-one ran towards that side.
9.7 When she was asked at what point did the SAPS start shooting at her,
she said, at first, it was from a distance and later at close range. She
11
further stated that , she was facing the other direction and the person
shooting at her was behind. She further mentioned that she was shot at
close range, and she asked the person why he was shooting her and
instead of responding , the person continued to shoot at her multiple
times.
9.8 Her friend ,Ntokozo had escaped. She was then handcuffed and placed
in a SAPS van.
9.9 She remained handcuffed at the station while an SAPS Officer was
writing a statement, and she was later taken to hospital in a SAPS van
and not in an ambulance.
9.10 When it was put to her that there is no indication that she was
hospitalised, she said that is not true as there are hospital discharge
documents.
9.11 When it was put to her that she was not in hospital for the duration of
four days as she claimed. She disputed that.
10. There was no re-examination.
ANALYSIS
11. The Defendant has failed to prove that the assault , arrest and detention was
justified for the following reasons:
11.1 Firstly, the defence witness could not dispute that the Plaintiff was shot
at close range.
11.2 Secondly, the defence witness could not place the Plaintiff at the vicinity
of the violent protest nor did he dispute that the Plaintiff was shot at a
place far from the protest. Therefore, there was no probable cause to
arrest and detain the Plaintiff.
12
11.3 Thirdly, the defence witness could not dispute that the Plaintiff was shot
at the back , meaning that she was not a threat to property or any person.
11.4 Lastly, he could not dispute that the Plaintiff was not armed with any of
the objects described to have been used by the protesting crowd i.e.
bottles and stones.
12. Importantly, even if I were to accept that the Plaintiff was part of the protest and
was fleeing when she got shot, that does not justify the shooting ,as she was no longer
a threat. This is confirmed by the fact that she was shot on the back. In the matter of
Nkoane v Minister of Police (3920/2020)[2023] ZAFSHC 33(30 January 2023) ,
referred to in the Plaintiff’s heads of argument, the Court found that a reasonable
SAPS Officer would not fire at a fleeing crowd.
13. Accordingly, I find that the assault, arrest and detention was not justified and
therefore, unlawful.
QUANTUM
14. The principles relating to quantum are trite and I do not intend to repeat same
in this judgment. It is further trite that a court must exercise its discretion in awarding
damages, and that the discretion must be exercised judiciously. See Minister of
Safety and Security v Seymour (295/05) [2006] ZASCA 71.
15. For the award that I make, I consider the following factors:
15.1 Firstly, that the Plaintiff was shot at close range and on her back.
15.2 Secondly, I consider that she posed no threat to anyone or property.
15.3 Thirdly, I consider that she was handcuffed at the police station and
during her hospital stay.
14
9 Faurie Street, Building 10
Office 2H, Sonpark
Mbombela
Tel: 013 741 3994
Email: segodi@segodiattorneys.co.za
Plaintiff’s counsel: Adv MS Ngomane
Email: Adv.ngomane@gmail.com
For Defendant: State Attorney, Nelspruit
3rd Floor, Admin Block, West Wing
R104 Samora Machel Drive
Nelspruit
Tel: 013 101 3722
Email: MMsiza@justice.gov.za
Defendant’s counsel: Adv T Mashabane
Email: t.mashabane@yahoo.com