Damages for injuries arising from unlawful shooting by police and other security agents: South Africa, Lesotho, Malawi, Namibia and Swaziland/Eswatini (1)

Abstract

The fact that the police and other security officers are authorised to carry firearms in the performance of their duties does not mean that they can lawfully use them at their whim or caprice. This is especially so if it be said that the objects of the police service are, inter alia, to protect the safety of its members and safeguard the public from harm. Although the primary duty of the police officer is to arrest and bring suspects to justice, however, the question of the wrongful use of their official firearms often comes up for determination. For instance, it is the law that the police can use reasonable force to arrest a suspect who resists arrest or who is violent. The question whether the force used was excessive in the circumstances a police officer finds him/herself is determinative as to whether the state will be held liable for the force used. In determining liability as well as the quantum of damages in these circumstances, one finds that all police shooting cases are not always connected with arrests. Sometimes a police officer shoots at a so-called suspect for no apparent reason, and even where the officer suspects that an offence has been committed, such suspicion may not be reasonable, or sufficient to justify the shooting. This enquiry examines the quantum of damages that have been awarded in South Africa in comparative perspective with the experiences of Lesotho, Malawi, Namibia and Swaziland/Eswatini in instances of unlawful shooting by police officers and further comparative awards made in respect of shootings by other security personnel. It is clear from this study that, owing essentially to the seriousness of the bodily injuries resulting from such shootings, the courts tend to make heavier awards in the circumstances of such shootings than in the normal or straight-forward wrongful arrest and detention cases.