Thirteen years after a young woman lost her right eye after she was hit by a rubber bullet fired by the police during protest action, she received justice as two judges of the Western Cape High Court ruled on appeal that the SAPS was indeed liable for her damages.
The Grabouw woman earlier instituted a R2.7 million damages claim against the minister of police, but the court turned down her claim.
Dibakiso Lehlehla, who, in 2011, was a first-year electrical engineering student making her way to college when she was injured, now successfully appealed that judgment.
The court earlier found that Lehlehla had placed herself in the line of risk and injury. On appeal, Judges Gayaat Salie and Mokgoatji Dolamo ruled that had the police ensured that the public order police unit had been deployed and present at the scene, Lehlehla, on the probabilities, would not have been shot.
This is because the unit would have taken control of the situation and controlled the crowd with the means at their disposal and without the necessity of rubber bullets being fired.
Lehlehla submitted that the SAPS breached their duty of care by randomly firing bullets at the public, including herself; endangering her life; disregarding her right to privacy and dignity; abusing their powers and acting with deliberate indifference towards her health and safety.
The SAPS, however, defended their actions and said they “acted out of necessity”.
The rubber bullet fired by an SAPS official resulted in her being blind in that eye. She was 19 years old at the time and a student at Boland College in Caledon. She was on her way to go and write an exam.
She encountered protesters in the vicinity of Ou Kaapse Weg, Grabouw, while en route to the bus stop early that morning. While walking on the gravel path passing the protesters, she heard the sound of gunshots.
She felt blood streaming down her face and immediately turned around and ran back to her home. Her family attended to her wounds at home and then called her cousin, a police officer at the scene, who requested the senior officers to allow the appellant to go to the local day hospital.
She was then taken to the Tygerberg Hospital.
A police officer testified that the protesting crowd was armed with sticks and the group was riotous. A platoon of 10 police officers were attempting to control the protesters. The police started firing rubber bullets in order to disperse the crowd, however, the crowd retaliated by throwing stones at the police.
The public order police unit only arrived a relatively long time after the shooting.
Captain Desmond Fortuin, head of the Grabouw Crime Prevention Unit, testified that they got wind that a community leader was planning a protest. He and other officials went to the scene, armed with their 9-millimetre service pistols and shotguns with rubber rounds.
Fortuin said he called for the help of the public order police unit, but he was told that they do not have a night shift platoon and they would only be available later.
The crowd, meanwhile, had grown, and it was volatile and throwing stones at the police, he said.
Fortuin testified that he was scared as he and his fellow officers had to "duck and dive". He was acutely aware that the protesters were very powerful and effective when they conducted these riots and that he had to act to protect and serve the community of Grabouw as well as the members who were under attack.
He gave an order to the officers to fire their shotguns with rubber bullets onto the ground towards the crowd. He testified further that the crowd was furious, given that protesters were being stopped from burning the town down.
At that stage, the crowd was already armed with pangas, knobkerries and sticks. Fires were lit in the streets, trees were set alight and tyres were hurled at the police.
Fortuin said the SAPS had no choice but to keep on firing rubber bullets to try and keep the crowd under control, but that they were ambushed.
Judge Salie, on appeal, said the court is not persuaded that the SAPS had been blindsided or ambushed as they had a legal duty to protect the appellant, which included utilising all available resources.
“Having not taken sufficient precautions to protect innocent members of the public, the respondent cannot rely on the defence of necessity. Its reliance on a defence that its local police members had to resort to the firing of rubber bullets is by all accounts self-created,” he said.
The judge said the harm that followed could and would have been averted with the realistic alternate measure that was available.
The matter will now have to return to court for the amount of damages payable to the appellant.
Pretoria News