Eastern Cape municipality liable for child shot by mayor’s bodyguard

By Tania Broughton

23 Sep 2022

Five-year-old suffered severe brain damage and paralysis.

Mnquma Municipality in the Eastern Cape is liable to pay damages to the family of a five-year-old, who was seriously injured after being hit by a stray bullet fired by the mayor’s bodyguard, the Makhanda high court has ruled.

The “close protection officer”, Lukhanyo Tukani, was off-duty at the time.

But Judge John Smith has ruled that his actions were “closely linked” to the purpose for which the municipality had employed him, and the municipality is vicariously liable to the child’s family for any damages they may prove.

“The heartrending facts of this case evoke harrowing images from any parent’s worst nightmare,” said Judge Smith.

Read the full judgment here.

The little boy was being cradled in his mother’s arms in his bed on the evening of 2 December 2017 when he was struck by the bullet fired by Tukani, who lived next door.

As a result, he suffered severe brain damage, resulting in paralysis and a speech impediment.

His father, mother and older sibling (names have been withheld in the judgment) sued both the municipality and Tukani for “severe emotional shock and trauma” and for damages for the boy’s injuries.

The family said Tukani had been acting in the course and scope of his employment with the municipality as a security officer, that the municipality had failed to ensure that he had handed in his firearm when he finished work that day, and it had failed to ensure that he was trained and experienced in the use of the firearm.

Judge Smith said the municipality had denied these allegations. It said Tukani was only employed to protect the mayor and his actions on that night were unrelated to his job. It also denied that it had a legal obligation to ensure that he handed in his gun when he was off-duty.

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Judge Smith said the child’s mother and father had testified during the trial that their son had enjoyed his favourite treat, a muffin and custard, and had said his usual nighttime prayer when “all hell broke loose” and they heard gunshots, about four in quick succession.

The father said his wife came out of the bedroom clutching their child in her arms. He was bleeding profusely.

The bullet had penetrated the walls of their prefabricated home just beneath the bedroom window. He subsequently noticed two other bullet holes in the roof sheeting.

Tukani, in his evidence, said he was an experienced security guard. While employed to protect the mayor, he was on standby at all times. He had been asleep that evening when he heard someone calling for him outside. It was his friend who was being attacked by an unknown assailant with a knife.

Tukani said the assailant, while still holding on to his friend, “boldly moved” towards his gate. Tukani ran inside and fetched his firearm. Outside, he fired two warning shots in the air and a third into the ground, firing at “an angle”.

When he heard screaming from next door, he immediately went to assist. He asked a neighbour to take the child to hospital and later went to see how he was doing.

Turning to the issue of liability, Judge Smith said that while the municipality had insisted that he was only employed to guard the mayor, his job description form said something different, that his law enforcement and protection duties were much broader and the municipality could require him to perform other tasks.

“There can be little doubt that his actions that night fell squarely within the ambit of his job description … that when he reacted to (his friend’s) pleas for help, he was indeed acting within the course and scope of his duties,” the judge said.

“And even if I am wrong in this regard, then at very least the plaintiffs have established that his actions were sufficiently closely linked to the purposes and business of the municipality … as comprehensively explained in his job description.”

Regarding the issue of wrongfulness, the judge said he had to decide whether a reasonable person would have foreseen that the shooting could injure another person.

The judge said Tukani’s version of events was “strange” because, on his version, the assailant was “literally bringing a knife to a gunfight”.

“He was aware that the houses in the area were prefabricated structures with hollow walls, which could be easily penetrated by a projectile. He should therefore have foreseen the reasonable possibility of the bullet injuring another person … of the possibility of the bullet ricocheting if fired at an angle on a solid surface such as a tarred road.”

Judge Smith found Tukani had acted negligently.

He ordered the municipality and Tukani to be jointly liable for whatever damages the family could prove and to pay their costs of the application. DM

First published by GroundUp.

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