Cape Town - A R2.7million damages claim by a Grabouw woman who was shot and injured during a protest, has failed in the Western Cape High Court.
Dibakiso Lehlehla, who was a first year electrical engineering student making her way to college when she was injured, made the claim against the Minister of Police after she was shot in the eye with a rubber bullet during a 2011 protest.
However, the court found that Lehlehla – who lost her right eye as a consequence of the injury – placed herself in the line of risk and injury.
Lehlehla had submitted that the SAPS breached their duty of care by randomly firing bullets at the public including herself; endangered her life; disregarded her right to privacy and dignity; abused their powers and acted with deliberate indifference towards her health and safety.
The SAPS, however, defended their actions and said they “acted out of necessity”.
“The plaintiff voluntarily assumed the risk ... and her own negligence contributed to the injury she sustained”, for allegedly participating in an illegal gathering, court papers read.
“The defendant based these alternative defences on the following pleaded averments.
Early that morning at around 3am a group of people started gathering illegally in that particular area.
This gathering progressively grew until by 6am the crowd had swelled to over 1 000 people. Members of the gathering were armed with pangas, knobkieries, sticks and stones; the streets in the vicinity were blockaded with cement blocks, burning tyres and stones; and the flow of traffic in and out of Grabouw was brought to a standstill.
“The gathering became increasingly riotous, people on their way to work were intimidated and/or assaulted; and their property as well as SAPS property was damaged. Efforts by SAPS members to restore calm and disperse the crowd resulted in stones and bottles being hurled at them.
“These efforts included repeatedly, but unsuccessfully, requesting the crowd to disperse in English, Afrikaans and isiXhosa. Ultimately the only reasonable means of averting the danger to both the public and SAPS members was to fire rubber bullets into the ground,” court papers read.
According to evidence given by SAPS member Malekotholi Matsemela, the crowd was estimated to be about 1 000 strong, some of them seen with sticks and singing before the “shootout” happened.
Judge Judy Cloete said that “given the medical evidence, (Lehlehla) was in all probability struck by a ricocheting rubber bullet.
I am fortified in this view by her pleaded case that she was injured near the corner of Old Cape and Industrial Roads, which is where the SAPS members were positioned when they fired rubber bullets into the ground.
“It is inconceivable that the plaintiff would not have heard shots being fired before leaving her home at around 6.45am. On the established facts and inherent probabilities the crowd was far from docile, as she claimed when she entered the area.
While I accept that she would not willingly have proceeded to walk directly into the heart of the protest, on the probabilities, she passed at least alongside the protesters at a time when their assault on the SAPS members was well under way ...
“While I have sympathy for the plaintiff’s plight – an innocent young woman trying to reach the bus stop to further her hard-fought-for education – I cannot overlook the fact that she also voluntarily assumed the risk of injury, whether at the hands of the protesters or the SAPS members acting out of necessity.
For all these reasons I am compelled to conclude that the plaintiff’s claim must fail.”
Cape Times