Court holds police liable for rubber-bullet injuries during Philippi protest

The Western Cape high court has found that the police failed to justify the use of force that injured two residents during efforts to disperse protesters in Philippi in July 2012.

The court, in a judgment handed down on Tuesday, ruled that the minister of police was liable for injuries suffered by Valiswa Gadini and Thandikhaya Shweni, who were shot with rubber bullets during a service delivery protest in Sweet Home Farm in Philippi.

The judgment means the next stage, if there is no appeal by the minister, is the assessment or settlement of the amount of damages. The parties can either negotiate a settlement or return to court for a trial on damages.

In this case, widespread service delivery protests erupted in the Philippi area on July 30 2012, prompting a deployment of Public Order Policing officers.

The minister argued that officers fired rubber bullets in self defence and out of necessity after protesters became violent and threw stones at police vehicles.

However, the court found that police failed to prove that the shootings were lawful.

Gadini, who lives in Sweet Home, testified that on the morning of the incident, she had walked to the taxi rank to get to work. On her way there, she noticed the protest and, upon arrival at the taxi rank, she found there were no taxis. She then walked back towards her home when police approached and started shooting. She was shot in her upper right thigh.

During cross-examination, Gadini stated before she was shot, she was running away from the police with a crowd of people and that the police started shooting after cornering them in a yard.

“When it was put to her that the police could not reasonably be expected to distinguish between protesters and innocent people caught up in the crowd, Ms Gadini stated pointedly that the police should have been focused on where the protest was happening and not in between the shacks,” said acting judge Ashleigh Christians in summarising Gadini’s evidence.

Shweni’s evidence was that, on the morning in question, he was sitting outside his house, basking in the winter morning sunshine. While in conversation with a neighbour, he suddenly felt dizzy and then fell unconscious.

When he regained consciousness, he felt his face was wet and, after touching the right side of his face, he found he was bleeding.

He then noticed that police were shooting and he took cover. When things calmed down, somebody called an ambulance, but it could not get to him because of the protest. A neighbour took him to the bridge, where he fell asleep until the ambulance collected him.

The medical report confirmed that he was shot in the right eye with a rubber bullet. He lost his eye as a result.

Because none of the police officers who discharged their weapons were called to give evidence, I cannot conclude that any of them were acting in self-defence.

—  Acting judge Ashleigh Christians

Christians said because the allegations that the two residents were shot with rubber bullets were not challenged, the real issue to be determined was whether the police officers had a lawful justification for shooting rubber bullets at the two residents.

The justification offered by the minister was that the officers acted out of self-defence, that they acted lawfully and reasonably out of necessity to protect their lives and physical integrity and the lives and physical integrity of innocent members of the public.

Christians said the two officers who testified stated categorically that it would not have been necessary for the police officers to enter the residential area because that was not where the threat was.

“From this, it must follow that, to the extent that members of the crowd retreated to the residential area, it was neither necessary nor appropriate for police officers to follow and pursue them there.”

Christians said the minister’s own witnesses accepted that the police officers would have had no justification to shoot at civilians inside the residential area.

“Not least of all because innocent by-standers, like Mr Shweni, would be at an unacceptable risk of being caught in the crossfire.”

Christians said in any event, even if one or both of the injured were part of the protesting crowd and were shot in what a police witness called the “primary threat” area, she was still not persuaded that the minister discharged the onus of proving that the shootings were justified.

“Because none of the police officers who discharged their weapons were called to give evidence, I cannot conclude that any of them were acting in self-defence.”

She said the minister has not demonstrated that, in discharging the rubber bullets, the police officers acted reasonably and out of necessity.