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 other security ofcers are authorised to carry

rearms in the performance of their duties does not mean that they can

lawfully use them at their whim or caprice. This is especially so if it be

said that the objects of the police service are, inter alia, to protect the

safety of its members and safeguard the public from harm. Although the

primary duty of the police ofcer is to arrest and bring suspects to justice,

however, the question of the wrongful use of their ofcial rearms often

comes up for determination. For instance, it is the law that the police can

use reasonable force to arrest a suspect who resists arrest or who is violent.

The question whether the force used was excessive in the circumstances

a police ofcer nds him/herself is determinative as to whether the state

will be held liable for the force used. In determining liability as well as

the quantum of damages in these circumstances, one nds that all police

shooting cases are not always connected with arrests. Sometimes a police

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

the ofcer suspects that an offence has been committed, such suspicion

may not be reasonable, or sufcient to justify the shooting. This enquiry

examines the quantum of damages that have been awarded in South Africa

in comparative perspective with the experiences of Lesotho, Malawi,

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

ofcers and further comparative awards made in respect of shootings by

other security personnel. It is clear from this study that, owing essentially

to the seriousness of the bodily injuries resulting from such shootings, the

courts tend to make heavier awards in the circumstances of such shootings

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

1 Introduction

This inquiry sets out to critically examine those instances where

individuals, alleged suspects or innocent bystanders sustain fatal or

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

University of the Free St ate.

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

34

(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 duty to arrest a person suspected of committing 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 liability in a case like this is by

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

that they acted within the dictates of necessity to protect themselves

1 See eg:LN v Minister of Safety and Security2011 (6D4) QOD 7 (KZP); Joseph v

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

2 Kotzev 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 further, footnote 64, infra) where the plaintiff was awarded the sum

of R204,968.56 agreed by the parties with regard to the injuries sustained by

the plaintiff who was struck by rubber bullets/projectiles red negligently and

unlawfully by a member of the SAPS, an employee of the defendant. Contra in

Modisev Minister of Safety and 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 between the police and robbers. Although the plaintiff alleged that

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

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

that the policewoman could reasonably have shot her. The court thus concluded

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

speculation. The court however held that it would have been highly unlikely that

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

plaintiff testied, people were running around into different directions, possibly

trying to ee the shooting that took place in the area; and furthermore, a shooting

duel between the police and the robbers was taking place in Station or Railway

Street. The plaintiff was unable to prove the requisite pri ma facie case against the

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

shooting by the Police while the robbers were not at the scene.

4 A typical illustration can be taken from the recent Namibian case of Haishonga

v The Government of the Republic of Namibia (HC-MD-CIV-ACT-DEL-2017/359 of

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

plaintiff was shot with a shot-gun belonging to a police ofcer who was walking

around and handling the rearm in a public place and within sight of the public

without the rearm being on a safety latch. After canvassing the liability of the

defendant along the wrongfulness, negligence and breach of duty route and the

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

Minister of Safety and Security v Van Duivenboden 2002 (6) SA 431 (SCA) at 442

per Nugent JA, Prinsloo J held that the police ofcer owed a legal duty to protect

the innocent bystanders, including the plaintiff, in his capacity as a police ofcer,

but had acted in breach of that duty (wrongfulness) and had negligently caused

the injuries of the plaintiff; and that the defendant was vicariously liable as the

police ofcer was acting within the course and scope of his duties. The plaintiff

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

and suffering; N$50,000 for emotional and psychological 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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