The security guard was shot on April 8, 2017, while posted on duty at a mushroom farm (“the farm”), wearing his full black uniform and a cap, both emblazoned in yellow epaulettes, when he noticed three SAPS vehicles parked outside the gate of the farm.
Image: Umfanekiso ogciniweyo
A security guard will receive full compensation for injuries sustained from a police shooting in the leg, as confirmed by the SAPS.
Siphiwe Mbanga approached and successfully appealed to the High Court of South Africa, Northern Cape Division in Kimberly, to have a lower court's decision for relief sought overturned.
Mbanga’s matter was previously heard, and relief sought was denied by the the Kimberley Regional Court.
Mbanga, 59, was shot on April 8, 2017, while posted on duty at a mushroom farm (“the farm”), wearing his full black uniform and a cap, both emblazoned in yellow epaulettes, when he noticed three SAPS vehicles parked outside the gate of the farm.
According to Mbanga, he was armed with a torch and a stick when he witnessed members of the SAPS break the lock on the gate to enter the farm.
“The SAPS members, all armed with firearms, some wearing uniforms, others wearing civilian clothing, approached him. He informed them that he was on duty as a security guard, and enquired as to the purpose of their presence, but they did not respond. Some of the SAPS members assaulted him by pushing him around, kicking him, and trampling on him. He heard a gunshot, realised that he was shot in his leg, and fell to the ground. He explained that he was afraid, but that he did not act aggressively nor attacked the SAPS members with his stick.
“When cross-examined, Mbanga testified that, in addition to the gunshot wound, he also sustained abrasions to his leg as a result of the assault on him by the SAPS members. He elaborated that he was first assaulted by one SAPS officer and then shot. He explained that he only made a statement to the Independent Police Investigative Directorate (IPID), and not to the police, as he was treated in hospital and then imprisoned for three days after the incident,” the court detailed Mbanga's version of events.
During the trial, the court also heard contentious issues surrounding the statement made to IPID.
“(Mbanga) admitted that the IPID statement contained his signature, he testified that he spoke isiXhosa when he deposed thereto, and that the statement was made to a male person. He, however, persisted that the IPID statement was never read back to him before he signed it.”
According to Mbanga, the discrepancies centred around, among others, issues that he “admitted that he hit a police officer on his hand and that the officer’s firearm broke, but during cross-examination, he denied that he hit any police officer; that the assault continued after he was shot; and that police officers first spoke to him before they assaulted him”.
According to the witnesses for the defence, they gave testimony that police members were informed that an armed robbery would take place on April 8, 2017, at the Lunaka truck depot (“the depot”), next door to the farm where Mbanga was employed.
According to intel received by SAPS about the alleged intended robbery, there would not be any security staff at the scene.
Approaching the would-be crime scene, two police officers broke away from a six-man shoulder-to-shoulder line in pursuit of what they saw in the bushes.
The defence version detailed: “(An officer) noticed a person lying in the tall grass on his stomach, two feet away from him. The light of the flare had gone out, and the visibility was poor. They (police) were dressed in full uniform and bulletproof vests, but none had working torches with them.
“(The officer) was armed with a 9mm pistol, but his colleagues were armed with pistols and R5s. He shouted ‘police, police, police, police’ and was immediately attacked with an object that looked like a panga by the person (Mbanga). The appellant struck him hard on his left hand with which he was holding the firearm, and it fell from his hand. He felt a sharp pain in his left hand. He thought the firearm had fired as he heard an explosion. The appellant continued to hit him, and he retreated, feeling petrified.”
During cross-examination, the witnesses for the defence confirmed that none of the SAPS members attempted to restrain Mbanga prior to him being shot “as everything happened very fast”.
Judge Almé Stanton said what was of importance was that Mbanga was shot by a member of the SAPS, while he only carried a relatively thin stick with him on the evening in question; and that the shooting incident happened within a confined area of 2.5m by 2.5m, and these versions were corroborated by the Minister of Police’s witnesses.
“I am persuaded that the respondent had other means to subdue the appellant without inflicting violence/shooting him. The force applied was not reasonable or proportional to the threat of violence posed by the appellant.
“The version of the police falls short of meeting the statutory requirements. In the absence of any legal justification, the prima facie unlawfulness of the respondent’s conduct is conclusive, and constituted an unlawful assault upon the appellant,” said Judge Stanton.