Damages for injuries arising from unlawful shooting by police and other security agents: South Africa, Lesotho, Malawi, Namibia and Swaziland/Eswatini (1)

• Author: Okpaluba, C.
• DOI: https://doi.org/10.47348/SACJ/v35/i1a3
• Published date: 07 July 2022
• Date: 07 July 2022
• Citation: (2022) 35 SACJ 34
• Pages: 34-57

Damages for injuries arising from

unlawful shooting by police and

other security agents: South Africa,

Lesotho, Malawi, Namibia and

Swaziland/Eswatini (1)

CHUKS OKPALUBA*

ABSTRACT

The fact that the police and ot her security of cers are authorised to car ry

rearms in t he performance of their dut ies does not mean that they can

lawfully use t hem at their whim or caprice. Th is is especially so i f it be

said that the objects of t he police service are, inter a lia, to protect the

safety of its members a nd safeguard the public from har m. Although the

primary dut y of the police ofcer is to ar rest and bring suspect s to justice,

however, the question of the wrongful use of thei r ofcial rear ms often

comes up for determination. For ins tance, it is the law that the police ca n

use reasonable force to arrest a susp ect who resists arrest or who is v iolent.

The question whether the force used was excessive i n the circumstance s

a police ofcer nds hi m/herself is deter minative as to whether the st ate

will be held liable for the force used. In det ermining liabi lity as well as

the quantum of dam ages in these circum stances, one nds that a ll police

shooting cases are not always conne cted with arrests. S ometimes a police

ofcer shoots at a so-c alled suspect for no apparent reason, and even where

the ofcer suspect s that an offence has been comm itted, such suspicion

may not be reasonable, or sufcient to just ify the shooting. Th is enquiry

examines the qua ntum of damages that h ave been awarded in South Afr ica

in comparative perspect ive with the experiences of Lesot ho, Malawi,

Namibia and Swaziland /Eswatini in insta nces of unlawful shooting by police

ofcers and fur ther comparative awards made in re spect of shootings by

other securit y personnel. It is clear from thi s study that, owing essenti ally

to the seriousness of the bod ily injuries result ing from such shootings, the

courts tend to make heavier award s in the circumst ances of such shootings

than in the norma l or straight-forward wrongf ul arrest and detention cases.

1 Introduction

This inquir y sets out to critically exam ine those instances where

individuals, alleged suspects or i nnocent bystanders sustain fatal or

* LLB, LLM (Lo ndon), PhD (West Indies), Research Fellow, Centre for Human Rights,

University of the Free St ate.

https://doi.org/10.47348/SACJ/v35/i1a3

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(2022) 35 SACJ 34

© Juta and Company (Pty) Ltd

bodily injuries1 as a result of the police using force in the course of

performing their dut y to arrest a person suspected of comm itting an

offence; 2 or where, in a shoot-out with such suspect(s), someone is

injured by a stray bullet in a cross re;3 or where injury occurs as

a result of a careless handling of an ofcer ’s ofcial rearm.4 It is

common knowledge that establishing liabilit y in a case like this is by

no means easy yet, the police must, in their defence, satisf y the court

that they acted within the d ictates of necessity to protect themselves

1 See eg: LN v Minister of Safet y and Security 2011 (6D4) QOD 7 (KZP); Joseph v

Minister of Police 2012 (6G3) QOD 5 (ECM).

2 Kotze v Minister of Safet y and Security 2012 (1) SACR 396 (GSJ).

3 See eg Jack v Minister of Police (1100/2014) [2019] ZAECPEHC 28 (14 May 2019)

(discussed fur ther, footnote 64, inf ra) where the plaintiff w as awarded the sum

of R204,968 .56 agreed by the parties wi th regard to the injur ies sustained by

the plaintif f who was struck by rubb er bullets/projecti les red negligently and

unlawful ly by a member of the SAPS, a n employee of the defendant. Contr a in

Modise v Minister of Safety a nd Security (18346/2021) [2021] ZAGPPHC 561

(2September 2021) at paras [24]–[29] where the pla intiff did not know who shot her

in a shoot-out betwee n the police and robbers. A lthough the plaint iff alleged that

a policewoman shot her, she did not see the p olicewoman shoot her. No evidence

was forthcoming to su bstantiate her allegation nor was ther e a reasonable inference

that the policewoman co uld reasonably have shot her. The cour t thus concluded

that any nding by the c ourt that the policewoman shot the plai ntiff would be pure

speculation. Th e court however held that it would have been h ighly unlikely th at

the policewoman could h ave stood where the plai ntiff’s testimony put her if, as the

plaintiff tes tied, people were ru nning around into d ifferent direc tions, possibly

trying to ee the sho oting that took place in t he area; and furt hermore, a shooting

duel between the police a nd the robbers was ta king place in Station or R ailway

Street. The plai ntiff was unable to prove th e requisite pri ma facie case again st the

defendant. In other word s, there was no proof of shooting or proof of unneces sary

shooting by the Police whi le the robbers were not at the scene.

4 A typical il lustration can be ta ken from the recent Namib ian case of Haishonga

v The Gover nment of the Republic of Namibia (HC -MD-C IV-ACT-DEL-2017/359 of

2017) [2019] NAHCMD 219 (03 June 2019) at paras [103]–[104] and [115], where the

plaintiff was sho t with a shot-gun belongi ng to a police ofcer who was walk ing

around and handl ing the rearm i n a public place and within sig ht of the public

without the rear m being on a safety latc h. After canvassi ng the liability of t he

defendant along the wrong fulness, negligence a nd breach of duty route and th e

modern law of negligence as e nunciated by the Supreme Cour t of Appeal (SCA) in

Minister of Safety and Secu rity v Van Duivenboden 2 002 (6) SA 431 (SCA) at 442

per Nugent JA, Prin sloo J held that the police ofce r owed a legal duty to protect

the innocent bysta nders, including the pla intiff, in his c apacity as a police ofc er,

but had acted in breach of t hat duty (wrongfulne ss) and had negligently caused

the injuries of t he plaintiff; and th at the defendant was vica riously liable as the

police ofcer was act ing within the cou rse and scope of his dutie s. The plaintif f

was awarded damages i n the amount of N$150,560 made up of N$100,000 for pain

and suffering; N$50,0 00 for emotional and psycholog ical pain; and N$560 for past

medical treatme nt and examination.

Damages for injuries arising from unlawful shooting

by police and other security agents 35

https://doi.org/10.47348/SACJ/v35/i1a3

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