Man wins damages after being shot by police during Covid lockdown

An Eastern Cape man who was shot with a rubber bullet a few days after the start of South Africa’s hard Covid-19 lockdown in 2020 has won his damages case in the Bhisho High Court.

In ruling in favour of the plaintiff, Judge Avinash Govindjee said: “The after-effects of the Covid-19 pandemic continue to be experienced. Courts are still seized with matters emanating from the global events which resulted in a state of national lockdown coupled with emergency regulations that impacted on the lives of all South Africans.”

He ordered that the South African Police Service (SAPS) pay damages to Xolani Patrick Lingani who was shot when officers tried to break up a gathering at a spaza shop in Mdantsane during the fifth day of the lockdown in 2020.

No date has yet been set for the hearing on the quantum of damages, which was not specified in the court papers.

The SAPS legal team stated that the incident occurred five days after President Cyril Ramaphosa had announced a Level 5 lockdown for South Africa triggered by the Covid-19 pandemic.

As part of this announcement, regulations were enacted empowering “an enforcement officer” to order that gatherings must disperse immediately and to take appropriate action to effect this, including arrest and detention.

The police alleged that Lingani had gathered with others despite the new regulations being announced five days earlier.

“The police officers, who were enforcement officers, arrived at the place where the plaintiff and other persons had gathered unlawfully and asked Lingani and other persons to disperse a few times; when they refused to cooperate, the police officers fired warning shots with rubber bullets away from the plaintiff and other persons,” Govindjee continued.

Evidence before the court was that three shots were fired and that Lingani then found a “one-centimetre round hole, approximately 1.5 centimetres deep, above and behind or to the side of his left knee”.

He went to hospital but wasn’t admitted and his wound was treated with antiseptic ointment and a bandage.

Lingani’s 15-year-old son confirmed that he heard three shots and then saw blood on his father’s leg.

Police witnesses admitted that two shots were fired at the scene. Ten police officials were patrolling Mdantsane on the day. Three were armed with shotguns loaded with rubber bullets and seven with pistols loaded with live ammunition, the court heard.

The court heard that the police found Lingani drinking a soft drink in front of a spaza shop in the company of a woman and four young men.

The group was asked to disperse but ignored the police. While a police official was still talking to them and explaining the situation, shots were fired and people ran for cover.

Another police witness explained that they were of the view that “there had been enough talk”, Govindjee continued, as officials believed that the “police must be listened to”.

A police official further admitted that they had fired shots but said this was done in the opposite direction and a bullet must have ricocheted to hit Lingani.

Read more: Police abuses during lockdown reflect deep accountability problems

“This was hardly the kind of gathering that might have justified deviation from basic forms of acceptable policing, even allowing some measure of latitude given the recent onset of the pandemic,” said Govindjee.

“The minister’s employees violated their own protocol and acted in heavy-handed fashion absent any justification for doing so. The conduct of those present on the day, including the plaintiff in particular, should have been met with a proper warning of arrest, followed by further police action if necessary in the event of further disobedience.

“By acting as they did, the police failed to warn the plaintiff of the severity of the situation and opened fire without justification,” he concluded.

Read more: Ramaphosa calls 11 lockdown deaths and 230,000 arrests an act of ‘over-enthusiasm’ – really!

According to a report before Parliament, the Independent Police Investigative Directorate (Ipid) received 403 cases of police misconduct in the first month of the hard lockdown in 2020.

At the time, the report concluded: “The number of assaults by police officers is quite high and is something that should be considered, whether it has occurred within the period of the lockdown or not. There may be validity in such claims of police abusing the rights of members of the public considering that there have been a total of 271 reported assaults by police officers in the period 26 March to 17 April 2020.”

According to an answer provided by Police Minister Senzo Mchunu to a parliamentary question, 10,689 claims were instituted against the SAPS from March 2020 to February 2021. DM