Mthatha student who was blinded in one eye during campus protest loses R16m lawsuit

A former student at Walter Sisulu University, who was blinded in one eye after being shot with a rubber bullet during a protest at the university’s Mthatha campus, has lost her appeal against the dismissal of her R16-million claim against two security firms.

Writing on behalf of a Full Bench of the Mthatha High Court, Judge Lindiwe Rusi said they agreed with the trial court that Zizipho Bridgette Zide had tried to conceal that she was part of a very violent protest on campus.

Zide sued two of the security companies that dealt with the protest, Xhobani Security Services and Falcon Firearm Training Academy, for damages including permanent disfigurement. The Mthatha High Court dismissed her claim in 2020, and she appealed against the judgment.

Violent student protests erupted on the campus during the June exams in 2016. As is the case with current protests on campuses countrywide, the protest was triggered by National Student Financial Aid Scheme (NSFAS) failures.

A student protest at UCT this week. (Photo: Ernst Calitz)

A group of about 500 students threatened to disrupt examinations. Representatives of the two security companies attempted to negotiate with the students, who threw bottles and rocks at the guards. The guards fired paintballs and rubber bullets at the students.

Read more: NSFAS: Students claim their future is on hold after Fund’s continued failures

“The fracas endured for about two hours and the students would move from various points around the campus. At some point during the violent protests, two security officers were injured and a total of three loaded shotguns were taken from some of the guards,” according to the judgment.

Judge Rusi said the security guards ran out of rubber bullets and retreated to the main gate of the campus to talk to members of the Student Representative Council (SRC) about their intention to use live ammunition in light of the persistent aggression by the protesting students.

“The use of live ammunition was apparently the last option available to them in those circumstances in their attempt to protect their lives, those of the third parties not involved in the protest, and the property of the university. It was at this point that the SRC managed to disperse their constituency, the protesting students,” the judgment continued.

Judge Rusi said the court accepted that Zide was shot during the protest.

Zide’s evidence was that she was shot as she was leaving Chumani Residence to go to the library. She claimed that a security officer was standing outside the residence and shot her while she was on the stairs.

She said she had not said or done anything to the officer. Zide testified that at the time there were no protesters nearby.

Security firm personnel testified that while they were in the vicinity of Chumani Residence they were told that students were threatening to burn a security vehicle which was parked near the library. They went to fetch the vehicle and students threw bricks and stones at them. Two security guards had to be hospitalised for their injuries.

Another security guard told the court that the students were armed with spades, pick-axes and machetes.

‘Defies logic’

Judge Rusi said the court could only conclude that Zide was one of the protesting students, or had knowingly placed herself at risk of being shot by being in the vicinity of the pandemonium on the campus.

“For there does not appear, on the conspectus of the evidence, to have been any logical reason for any of the members of the security firms to have been inside the Chumani Residence, let alone to have shot at a student who posed no threat of harm to them.

“Regard must, furthermore, be had to the fact that on the record before us, no evidence was adduced nor issue raised regarding the possibility of someone other than the security guards shooting [Zide] at any other point during the mayhem, except for what she told the court in this regard, that she was shot by a security guard at the Chumani Residence. Therefore, it is this court’s view that the appellant’s description of how she was shot tends to defy logic,” said Judge Rusi.

“It has not been disputed that the protesting students attacked the security guards with rocks and bottles, and some were armed with spades, picks and machetes. The intensity of the violence and how rapidly it escalated has also not been disputed.

“Similarly, it was not disputed that the protesting students also threw rocks and bottles at the windows of the buildings and that they were threatening to disrupt examinations and harm those students who were writing examinations and not participating in the protest. The less harmful ways of dispersing the crowd of protesting students, namely, the negotiations … had failed,” the judgment continued.

‘Conjured-up version’

The court found that the security guards were faced with a threat of harm to their lives and there was a concomitant threat of damage to the property of the university.

“The [security guards] were justified in their resort to the use of the force that they applied in averting the harm that had ensued and was ongoing,” Judge Rusi found.

She said the question was whether the response to the violence was excessive.

“It is equally undisputed that the protesting students were armed and in a large number of about 500 as against a small group of a total of 10 security officers. The unchallenged evidence of the [security firms] is that the students had outnumbered the contingent of security guards.”

The court found that the security guards had not used excessive force to disperse the crowd.

She said the court accepted the version of the security guards that they did not go inside the Chumani Residence, leading to the conclusion that Zide was among the protesters.

“With her conjured-up version, she wanted to conceal the fact that she was there. The surrounding circumstances clearly indicate that there was indeed risk of harm. Therefore, she subjectively foresaw the risk of harm; and she implicitly consented to the injury by placing herself in harm’s way,” the judgment found.

“With all that having been said, it would be insensitive of this court not to acknowledge the pain and horror of what Zide experienced when she lost sight in her eye. While there ought indeed to be sympathy for her plight, the fact that she elected not to be candid and presented a false version of events regarding the circumstances under which she was shot militates against her [appeal] succeeding.” DM