ZIYANDA ZWENI
In two separate high court judgments delivered on the same day, the minister of police has been ordered to pay damages for unlawful conduct by police officers, including a wrongful arrest and the shooting of a pupil during a school protest.
In one ruling in the Makhanda high court, the minister was ordered to pay R140,000 for unlawful arrest and detention.
In the other judgment, a Mthatha high court judge found the minister liable for any proven damages in a civil claim brought by a former Atwell Madala High School pupil who was shot by police during a protest in 2019.
Both matters, decided on January 20, included cost orders against the minister in terms of the Uniform Rules of Court.
In the Mthatha case, the former pupil sued for damages after being shot during a protest over the poor state of infrastructure at the school.
In his evidence, he said that on July 18 2019, pupils blocked the N2 outside the school with stones and burning tyres.
Police arrived and fired teargas, after which pupils regrouped in the schoolyard.
He said that while the protest continued, a police vehicle arrived and he decided to fetch his schoolbag and leave as he no longer felt comfortable.
“As I was exiting the schoolyard, I saw a police officer at a distance of approximately 15 paces pointing a firearm in my direction,” he said.
“I then heard a gunshot towards my direction.”
He said a teacher, Vuyani Qalashe, came to assist as he was bleeding heavily from his arm and that he pointed out a Constable Velembo as the shooter, which the officer denied.
Medical evidence confirmed a bullet wound to his right arm, a fracture of the humerus and severe bleeding.
In defence, Velembo testified that the scene was chaotic, with pupils throwing stones, and that he heard gunshots but did not see where they came from.
He denied firing the shot that injured the pupil.
In her ruling, acting judge Nolubabalo Cengani-Mbakaza said the pupil’s evidence was credible despite being a single witness.
“This court acknowledges that the plaintiff is a single witness regarding the assault and therefore his evidence should be treated with caution.
“My observation is that the plaintiff, though a single witness, gave a clear and chronological exposition of events,” she said.
“The injuries sustained by the plaintiff, including the gunshot heard by both Mr Qalashe and Constable Velembo, corroborate the plaintiff’s version that he was indeed shot.”
She said evidence about empty cartridges found at the scene supported the pupil’s account.
“The collection of the empty cartridges at the scene, identified with a ‘P’ symbol, establishes a reasonable inference that the police officer indeed shot the plaintiff and no one else,” she said.
“Resultantly, I find the defendant liable for the plaintiff’s assault which was intentionally perpetrated by its member.”
In the Makhanda matter, the claimant sued the minister for R700,000 for unlawful arrest and detention after police acted on a tip-off that she was selling alcohol during lockdown.
She said the liquor was for a traditional ceremony planned after curfew.
The court heard that she was arrested on April 30 2020, detained and later issued with a notice to appear in court, which included an option of an admission of guilt fine.
When she arrived in court, she was told the matter was not enrolled.
“It is therefore common cause that the arrest and detention did not culminate in any formal charges or criminal prosecution against the plaintiff,” the judge said.
The court found there was no evidence liquor had been sold and criticised the manner of the arrest.
“In the circumstances of this case, the police seriously infringed the plaintiff’s right to dignity and privacy.
“The arresting officer acted on a tip-off and failed to apply his mind objectively,” the judge said.
“The fact that the arrest was effected in full view of the minor children is concerning.”
However, the judge ruled that the R700,000 claimed was excessive and awarded R140,000 in damages.
