Damages for injuries arising from unlawful shooting by police and other security agents: South Africa, Lesotho, Malawi, Namibia and Swaziland/Eswatini (2)

• Author: Okpaluba, C.
• DOI: https://doi.org/10.47348/SACJ/v35/i2a3
• Published date: 03 October 2022
• Date: 03 October 2022
• Citation: (2022) 35 SACJ 175
• Pages: 175-197

Damages for injuries arising from

unlawful shooting by police and

other security agents: South Africa,

Lesotho, Malawi, Namibia and

Swaziland/Eswatini (2)

CHUKS OKPALUBA*

ABSTRACT

The discussion of the South African cases involving wrongful police

shootings and the damages awarded in that regard formed the subject of

the discussion in the rst part of this series. That discussion continues

in the current part two which winds up with the analysis of the cases

from Lesotho and Malawi involving injuries caused by the use of rearms

by police ofcers and other security agents. The deprivation of personal

liberties and physical and other injuries caused by police shootings may

appear similar to the heads of damages recoverable in these jurisdictions

such that guiding principles are uniformly applied. At the end of the day,

the amounts nally awarded differ from jurisdiction to jurisdiction as the

courts in the smaller jurisdictions of Southern Africa often emphasise the

disparities bet ween their economies and the more developed South Afr ican

economy such that the amounts n ally awarded reect such socio-economic

disparities.

2.7 Unlawful shooting, arrest and detention

In Lett v Minister of Safety and Security,1 the rst plaintiff, in his

personal capacity and as gua rdian of his son Rushdean, and the second

plaintiff, his wife, claimed damages resulting from trauma suffered in

witnessing the wrongful shooting of Kay-Lee, their daughter and sister

respectively, by a police ofcer in their home in Uitenhage. Rushdean

suffered major depressive disorder, dysthymic disorder and chronic

post-traumatic stress disorder requiring psychological treatment in

the form of counselling and anti-depressant medication. The second

plaintiff suffered major depressive disorder, dysthymic disorder, major

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

University of the Free St ate.

1 2011 (6K3) QOD 1 (ECP) at paras [32]–[33].

https://doi.org/10.47348/SACJ/v35/i2a3

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(2022) 35 SACJ 175

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depressive episode with melancholic features, panic disorder with

agoraphobia, chronic post-traumatic stress disorder and generalised

anxiety dis order. She required psychological and psychiatric treatment.

Eksteen J held that the award of R100,000 in respect of the second

plaintiff and R120,000 in respect of Rushdean was a fair compensation

for general damages. As a result, the court ordered as follows: (a) that

the rst plaintiff in his personal capacity be paid R8,713 as and for

damages; (b) that the sum of R133,450 be paid to the rst plaintiff as

and for damages in his representative capacity; and (c) that the sum of

R245,010 be paid to the second plaintiff as and for damages.

Lamola v Minister of Safety and Security2 involved the appropriate

quantum of damages to be awarded to the plaintiff arising out of an

earlier nding of unlawf ul shooting, arrest and detention, and malicious

prosecution. The plaintiff was shot and arrested. He was hospitalised

for two weeks after which he was detained in a police cell for two

months while he was still recuperating. He was later held in prison

custody awaiting trial for another nine months. His injuries consisted

of a gunshot wound through the left side wall of the chest. Internal

damage was caused by the penetrating bullet. Both the diaphragm

and the liver were lacerated and internal bleeding occurred. In the

emergency surgery that followed, a drain was inserted after a medical

laparotomy was performed to clear the abdomen of free uids. Hewas

left with scarring at the sites of the bullet wounds, the drain and the

abdominal incision. For the two weeks he was in hospital, he was

shackled and under guard. He had to endure the embarrassment of

being treated as a criminal in front of other patients.3 The conditions

in the cell were the usual: an overcrowded small space with an open

stinking lavatory, poor food and lice-infested mats upon which to

2 2012 (6K6) QOD 111 (GSJ). This case was cited in Mageza v Minister of Safety

and Security (70301/2009) [2017] ZAGPPHC 549 (22 August 2017) at paras [12],

[15]–[17], where the plaintiff was shot and chased by the police. Millar AJ held that

the brutality of the attack and its aftermath together with the multiple surgeries

that the plaintiff had to undergo were of such severity as to justify a substantial

award of damages. Further, that it was neither appropriate nor practical to attempt

to break down the individual heads of damage and to make an award piecemeal.

The plaintiff suffered ‘in an indivisible fashion’; rst, he was shot and chased by

police; second, he was hospitalised and underwent surgeries; and third, he had

to appear in court on several occasions. ‘The pain, suffering and indignity all of

which took place at the same time as the unlawful arrest and detention and then

persisted therea fter only served to exacerbate t he damages suffered by the plaint iff.’

Instead of awarding damages separately for a wrongful arrest without a warrant,

wrongful and unlawful shooting and unlawful detention, Millar AJ, in the exercise

of the court’s discretion in awarding damages considered the sum of R650,000

as an appropriate award in respect of the unlawful arrest and detention, assault,

contumelia, pain and suffering.

3 Lamola v Minister of Safety and S ecurity supra (n2) at para [8].

176 SACJ.(2022) 2

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