The Minister of Police was ordered to pay 100% of Mbinga's proven damages.
A Northern Cape High Court ruling has found that police used excessive and unreasonable deadly force when they shot a Mapogo security guard during an anti-robbery operation in 2017, leading to his claim for damages being dismissed by the regional court.
what happened that night
Siphiwe Matthews Mbanga, a 59-year-old security guard employed by Mapogo Security, was on duty at a mushroom farm in Kimberley on the evening of 8 April 2017 when members of the South African Police Service arrived acting on intelligence that an armed robbery was about to take place at a nearby truck depot.
Mbanga testified that he was patrolling the perimeter of the farm with a torch and stick when armed SAP members entered the property, assaulted him and then shot him in the leg.
He said he never behaved aggressively or attacked anyone.
However, police told a different story. According to court records, Captain Harmse testified that he was attacked by Mbanga with a panga, causing him to drop his weapon and injuring his left index finger, before his colleagues Luu and Kwesh fired in Mbanga's direction.
Harmsey later admitted during cross-examination that he ultimately identified the weapon as a thin stick, and admitted that “if he had known this would not have been a life-threatening situation”, and “shooting the man who was attacking him with the stick would not have been appropriate under the circumstances.”
How the regional court made a mistake
The Regional Court in Kimberley rejected Mbanga's claim, finding that he had the burden of proving that he was shot unlawfully. The High Court said that this is legally wrong.
Judge Alma Stanton, writing the judgment, was blunt: “The Court's quo conclusion that the Appellant bears responsibility is clearly a violation of an established principle of law and a clear misdirection.”
Because the shooting was a common cause, the onus fell on the police to justify the use of deadly force under Section 49(2) of the Criminal Procedure Act.
The court also rejected the regional court's credibility findings against Mbanga, noting that his oral evidence differed from his written IPID statement because the interpreter lacked formal accreditation and the statement was never read back to him before he signed it.
The judgment noted the well-established principle that police statements “are severely lacking in detail, inaccurate and often incomplete.”
Why did the force fail in the legal test?
Section 49(2) of the Criminal Procedure Act only permits deadly force where a suspect poses a serious risk of violence or there is reasonable suspicion of a crime of grievous bodily harm, and where no other reasonable means of arrest exists.
The court found that the police failed in both cases.
Justice Stanton identified a number of significant failings: the officers did not fire warning shots at Mbinga's legs before shooting them; They made no attempt to stop him before the shooting; And they presented no evidence that there was no alternative way to intervene.
The limited incident area of 2.5 by 2.5 metres, combined with the fact that three armed, experienced officers in bulletproof vests were confronting an elderly man with a thin stick, made the use of firearms disproportionate.
“The force applied was not appropriate or proportionate to the threat of violence posed by the Appellant,” the court concluded, finding that “both objectively and subjectively, SAPS members acted outside the scope of section 49(2) of the Act.”
The Minister of Police was ordered to pay 100% of Mbinga's proven damages.
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