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 S outh African c ases involving wrongful p olice

shootings and the damage s awarded in that regard formed t he subject of

the discussion in the  rst part of th is series. That di scussion continues

in the current pa rt two which winds up w ith the analysis of the ca ses

from Lesotho and Malaw i involving injuries caused by the u se of rearms

by police ofcers and other sec urity agents. The de privation of personal

liberties and physical and ot her injuries caused by pol ice shootings may

appear similar to t he heads of damages recoverable in the se jurisdiction s

such that guiding pr inciples are uniform ly applied. At the end of the day,

the amounts nal ly awarded differ from jur isdiction to juri sdiction as the

courts in the sm aller jurisdic tions of Southern A frica often emphasis e the

disparities bet ween their economies a nd 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 d amages resulting from trauma suffered in

witnessing the wrongful shooting of K ay-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 requ iring psychological treatment in

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

plaintiff suffered major depressive disorder, dysthymic d isorder, major

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

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 a nd 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 i n respect of Rushdean was a fair compensation

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

the rst plaintiff i n 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 recuper ating. He was later held in prison

custody awaiting trial for another ni ne 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 occur red. In the

emergency surgery that followed, a drain was i nserted after a medical

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

left with scarri ng 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 embar rassment of

being treated as a crimi nal in front of other patients.3 The cond itions

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 cite d in Mageza v Minister of Safet y

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

[15]–[17], where the plaint iff was shot and cha sed by the police. Mil lar AJ held that

the brutalit y of the attack and i ts aftermat h together with the mu ltiple surgeries

that the plainti ff had to undergo were of suc h severity as to just ify a substa ntial

award of damages. Fu rther, that it was neith er appropriate nor practic al to attempt

to break down the indi vidual heads of dam age and to make an award pieceme al.

The plaintif f suffered ‘in an i ndivisible fashion’; rst, he wa s shot and chased by

police; second, he was hospita lised and under went surgeries; and t hird, he had

to appear in court on s everal occasions. ‘T he pain, suf fering and indign ity all of

which took place at the same t ime as the unlaw ful arres t and detention and then

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

Instead of awardi ng damages separ ately for a wrongful ar rest without a war rant,

wrongful and un lawful shoot ing and unlawf ul detention, Mi llar AJ, in the exercis e

of the court’s disc retion in awarding d amages considered t he sum of R650,000

as an appropriate award in r espect of the un lawful arr est and detention, ass ault,

contumelia, pain and suffering.

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

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