Court rules police shooting of security guard was unlawful, orders minister to pay damages
· Citizen
A Northern Cape High Court judgment has found that police used excessive and unjustified deadly force when they shot a Mapogo Security guard during an anti-robbery operation in 2017, overturning the regional court’s dismissal of his damages claim.
What happened that night
Siphiwe Mathews 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 would take place at a nearby truck depot.
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Mbanga testified that he was patrolling the farm’s perimeter with a torch and a stick when armed Saps members entered the property, assaulted him and then shot him in the leg.
He maintained he never acted aggressively nor attacked anyone.
The police, however, told a different story. According to court records, Captain Harmse testified that he was attacked by Mbanga with what he believed was a panga, causing his firearm to fall and injuring his left index finger, before colleagues Louw and Kwesh fired in Mbanga’s direction.
Harmse later conceded under cross-examination that he eventually identified the weapon as a thin stick, and acknowledged that “it would not have been a life-threatening situation if he had known”, and that “shooting a person who was attacking him with a stick would not be justified in the circumstances.”
How the regional court erred
The Regional Court in Kimberley dismissed Mbanga’s claim, finding that he bore the burden of proving he was unlawfully shot. The High Court said this was legally wrong.
Justice Almè Stanton, writing the judgment, was unequivocal: “The court a quo’s finding that the appellant bore the onus is clearly a violation of an entrenched principle of law and a clear misdirection.”
Because the shooting was a common cause, the burden shifted to the police to justify their 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 diverged from his written IPID statement partly 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 “notoriously lacking in detail, are inaccurate and often incomplete.”
Why the force failed the legal test
Section 49(2) of the Criminal Procedure Act permits deadly force only where a suspect poses a serious threat of violence or is reasonably suspected of a serious bodily harm offence, and where no other reasonable means of arrest exist.
The court found the police failed on both counts.
Justice Stanton identified several critical failures: the officers did not fire warning shots before shooting at Mbanga’s legs; they made no attempt to restrain him before firing; and they presented no evidence that there was no alternative way to intervene.
The confined incident area of 2.5 by 2.5 metres, combined with the fact that three armed, experienced officers in bulletproof vests were confronting one elderly man with a thin stick, made the use of firearms disproportionate.
“The force applied was not reasonable or proportional to the threat of violence posed by the appellant,” the court concluded, finding that “both objectively and subjectively, the members of SAPS acted outside the scope of s 49(2) of the Act.”
The Minister of Police was ordered to pay 100% of Mbanga’s proven damages.