THE High Court has ordered the Government of Eswatini to pay E218 500 in damages to Sikhombisa Mpanza. He was allegedly shot by a police officer at the Mahamba Border Post in what the court found to be an unlawful and reckless use of force.
Judge Bonginkhosi Magagula delivered the judgment, concluding that government is vicariously liable for the negligent conduct of Constable Nkosingiphile Nxumalo, whose actions the court described as disproportionate, unauthorised, and unsupported by any legal justification.
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This was a delictual claim brought by Mpanza, who alleged that he was shot without cause by members of the Royal Eswatini Police Service on April 2022 while waiting in his grey Audi A3 near the informal crossing area at Mahamba.
Government and the police denied liability, insisting that the shooting was a necessary and lawful response to a volatile situation involving fleeing suspects and an alleged threat to the officers’ safety.
They further argued that the police acted in private defence and within the scope of their duties when they fired shots at the vehicle and subsequently at the plaintiff. However, after weighing all the evidence, the court rejected the defence’s version and found that the plaintiff had proven, on a balance of probabilities, that the shooting was unlawful and not justified by any of the circumstances presented.
Judge Magagula emphasised that the officer’s use of a high-powered rifle against an unarmed and compliant motorist in a public place was excessive and contrary to policing standards.
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The events leading to the shooting were reconstructed mainly through the testimony of three witnesses called by the plaintiff, whose evidence the court found credible, consistent, and corroborated by medical reports.
According to Phumlani Nkambule, he and Cebisa Dumezweni Dlamini had travelled from Johannesburg in Mpanza’s vehicle. Because the border was closed at the time, they used the informal foot crossing, where soldiers conducted a search and found cash on Nkambule.
They were instructed to declare the money at the police office, where officers began registering the funds.
Nkambule later grabbed the cash and fled into a nearby forest. He admitted under oath that he threw the money into the bush and that police later caught and assaulted him while demanding to know where he had hidden it.
The defendants had promised to lead evidence showing that Nkambule had thrown the money into the Mpanza’s vehicle and that police never assaulted him, but it failed to present any such evidence, a failure the court said severely undermined the credibility of the defence case.
Cebisa Dlamini provided crucial testimony, recounting how he witnessed police assaulting Nkambule in the forest before the money was eventually recovered.
He then returned toward Mpanza’s vehicle and saw a white police van approach the Audi aggressively.
Officers shouted “misa lemoto wena mfana” as the plaintiff was bringing the vehicle to a stop. Dlamini said he heard a gunshot as Mpanza complied. Mpanza, it is alleged, immediately raised his hands and asked why the police were shooting, but he collapsed moments later after being struck by a bullet.
Dlamini testified that the officers fled the scene without offering assistance.
He and another acquaintance, known as Doctor Mpanza, transported the wounded Sikhombisa to the Nhlangano Health Centre, where they waited for nearly two hours before he received medical attention.
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The defence called several police officers and an anonymous civilian witness referred to as Mr X. Their version sought to portray the shooting as a reasonable reaction to a chaotic situation triggered by PW1’s escape and by alleged hostility from members of the public.
But the court found major inconsistencies in their testimony. Some officers claimed they fired only warning shots; others said they aimed for the tyres to prevent escape. Yet medical evidence and eyewitness accounts confirmed that the plaintiff had already stopped his vehicle and had exited with his hands raised when he was shot directly in the thigh.
The court noted that the defence failed to reconcile these contradictions or provide objective evidence supporting their narrative.
Mr X testified that he saw the officer fire at the vehicle’s tyre and later shoot the plaintiff at close range even after he had surrendered.
Although he generally supported aspects of the defence case, his testimony ultimately confirmed the key allegations: that the plaintiff was unarmed, had raised his hands, and was shot without posing any danger. The court held that the use of an anonymous witness in a civil case was unusual and reduced the weight of his evidence.
Nevertheless, even his account did not establish that the plaintiff was threatening police in any way, thereby weakening the defence’s justification for the shooting.
Judge Magagula further found it significant that the officer who fired the shot had been off-duty and acted outside proper police procedure.
After hearing an emergency siren, he went to the armoury, obtained an R5 rifle without authorisation, and joined the chase without any operational briefing. His actions, the court held, were reckless and amounted to a frolic of his own, especially because the stolen money had already been recovered by the time he confronted the plaintiff.
The court said had the officer waited for an instruction or verified the situation, he would have known that no immediate threat existed.
The court emphasised the legal requirement that police use of force, especially lethal force, must be necessary, proportional, and based on a reasonable fear of imminent harm. None of these conditions were met.
There was no evidence that the plaintiff tried to flee, fought the officers, or attempted to disarm them.
The court rejected the defence’s suggestion that he was part of an unruly mob or attempting to interfere with the investigation. Instead, the evidence showed that he was an innocent motorist waiting for his companions and was attempting to comply with instructions when he was shot.
The court concluded that the defence narrative was speculative, contradictory, and unsupported by evidence. On the other hand, the plaintiff’s evidence was coherent, corroborated, and aligned with objective facts, including medical records showing a serious gunshot wound, prolonged infection and abscess, repeated medical interventions, pain, limited mobility, and psychological trauma.
Having found the government vicariously liable, the court awarded general damages of E170 000 for pain, suffering, and loss of amenities of life, along with special damages of E48 500 for medical and transport expenses. Interest at 9% per annum from the date of judgment until payment was also granted, as well as costs of suit.
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