A High Court in Pietermaritzburg has found the minister of Safety and Security liable for damages after Jabulani David Mlabe was shot by police during a high-speed pursuit of suspected criminals in Blaawubosch in 2008.
Mlabe, who was 58 at the time, was cycling home from his job at Iscor in Newcastle, KwaZulu-Natal, when he was struck by a police bullet on 12 March 2008.
He had instituted an action claiming R650 000 in damages due to the gunshot wound that ended his career.
Judge P C Bezuidenhout ruled that police acted negligently when they opened fire without ensuring it was safe to do so, despite the presence of civilians in the vicinity.
The court ordered the defendant to compensate Mlabe for any proven or agreed damages resulting from the gunshot wound.
The shooting
According to court records, the incident occurred around 10:45am as officers pursued a white Toyota Corolla carrying armed suspects through the residential area.
Mlabe testified that he was riding his bicycle on the left side of the road when police vehicles approached from the opposite direction, in pursuit of suspects who had already passed him.
“While he was still cycling, he was shot in his right leg. He fell from the bicycle, picked up the bicycle, and people came to assist him. He tore a plastic bag and placed it around the wound,” court records state.
The bullet struck the inside of his right thigh, grazing his bone before exiting at the back and hitting a helmet tied to his bicycle. After being shot, bystanders came to his assistance.
A police vehicle transported him to the hospital, where he remained for three days.
The injury prevented him from returning to his employment, where he had been earning R7 000 per month after eight years of service.
Mlabe, now 74, testified that he “could no longer be employed” after the incident.
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Police version challenged
Captain Elvis Buthelezi, who has since retired but held the rank of warrant officer at the time, testified that suspects “came from the direction of section 7” before making a U-turn.
He described how “they were travelling fast, and there were two suspects in the vehicle.”
According to Buthelezi’s testimony, the suspects opened fire first at a speed bump. When they lost control at a second speed bump and fired again, he said he “opened the left front door, taking cover and returned fire.”
However, Buthelezi admitted he “did not see anybody on a bicycle or on the side of the road” when he discharged his weapon. An attempted murder charge was opened against him.
Lieutenant Colonel Dumisani Joseph Nkabinde arrived at the scene shortly after receiving a radio report. He testified that he “received a report over the radio control that there was a person who was injured by police and suspects”.
Nkabinde found Mlabe waiting for an ambulance and observed that “the bullet entered from the front to the back of the thigh”.
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Court findings
Bezuidenhout determined that the trajectory of the bullet proved police fired the shot that struck Mlabe.
The judge reasoned that if the suspects had fired the shot, it would have struck Mlabe in the back rather than the front of his thigh.
“Considering the positions of the respective parties at the time, the only inference that can be drawn is that the police were advancing towards the direction of the plaintiff when the shots were fired,” the judgment stated.
The court found that police failed to maintain proper vigilance before opening fire.
Bezuidenhout noted that Buthelezi’s admission that he “did not see plaintiff on his bicycle when the shots were fired clearly indicates that he did not keep a proper lookout at the time.”
The judge emphasised that officers were operating in “a built-up area where people were walking, and they should have ensured that it was safe to fire the shots before they did so.”
Police version found contradictory
While acknowledging that police are entitled to use necessary force and defend themselves when their lives are endangered, the court found these justifications did not apply.
Bezuidenhout observed that while suspects fired shots, there was “no evidence that any of those shots struck the police vehicle or any of the police officers.”
The court found Mlabe credible, noting that he “was an honest witness who kept to his version throughout cross-examination.”
In contrast, Buthelezi’s testimony “was contradictory and at times he did not answer and stated that he had no comment.”
Bezuidenhout concluded that Mlabe had proved his claim.
“The shot which struck plaintiff was fired by a member of the South African Police Services, and further that it was due to the negligence of the police,” Bezuidenhout stated.
The case proceeded only on liability, with damages to be determined separately through either agreement or further court proceedings.
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