Junior Mathe and Mike Viyo (Assisted by Harold Viyo Father and Legal guardian) v Kizitho Mahachi and Officer in Charge N.O. and The Commissioner General N.O. and Minister of Home Affairs

### Preamble
1
HB 110-25
HC 1826/19
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JUNIOR MATHE

and

MIKE VIYO

(Assisted by Harold Viyo Father and Legal guardian)

versus

KIZITHO MAHACHI

and

OFFICER IN CHARGE N.O.

and

THE COMMISSIONER GENERAL N.O.

and

MINISTER OF HOME AFFAIRS

HIGH COURT OF ZIMBABWE

DUBE-BANDA J

BULAWAYO 12, 20 June 2024, 22 October 2024, 19 November 2024 & 14 July 2025

Claim for delictual damages

J Mhlanga, for the plaintiffs

S Jukwa, for the defendants

DUBE-BANDA J:

[1] 	This is an action against the defendants for delictual damages arising from allegations of unlawful shooting. Both the issues of liability and the quantum of damages are in dispute. The defendants have admitted that the plaintiffs were shot by the police and pleaded that the shooting was lawful.

[2] 	There are two plaintiffs in this matter, and after the granting of the amendment to the summons and declaration, each claims damages in the sum of RTGS100.00 and USD$10.000.00. It is pleaded that the basis of the claim is that on 1 January 2019, at Lugwalo Shopping Centre, Lugwalo Village, Lower Gweru, (“shopping centre”) while celebrating new year with other villagers, the first defendant unlawfully and without just cause using a service firearm shot and injured the plaintiffs. It is alleged that the conduct of the first defendant was unlawful. It is alleged that the first defendant was acting within the course and scope of his employment as a policeman in the Zimbabwe Republic Police (“ZRP”).  It is alleged further that the first plaintiff suffered a gunshot wound on his left hand and a bullet grazed his stomach, and the second plaintiff was shot on the ankle and had to undergo an operation to remove the bullet.

[3] 	In their plea the defendants aver that on 1 January 2019 at approximately 02:30 am Maboleni Police Station received a report that there was an ongoing attack on police officers at the shopping centre. In response to the report, the second defendant deployed a reinforcement team made up of the first defendant and other two police officers. The first defendant was armed with a CZ pistol loaded with nine rounds. On arrival at Paradise Special Restaurant and bar (“bar”), a riotous mob charged towards the police armed with axes, knives, stones, logs and knobkerries.

[4]	 In their replication the plaintiff deny that they participated nor engaged in any disturbances that occurred at the shopping centre.

[5] 	It is further pleaded that the first defendant drew a pistol and ordered the crowd to disperse, however it kept charging and threatening to disarm him. He fired three warning shots in the air, but the crowd kept charging, throwing stones and empty beer bottles at the police. The first defendant was hit by a stone on the knee and then fired two shots towards the mob but aiming on the ground. It is averred that the first defendant used the firearm to defend himself, property, the community and fellow police officers.

[6] 	At a pre-trial conference before a judge, the issues for trial were identified as the following:

Whether the shooting of the plaintiffs by the first defendant, a duly attested member of the Zimbabwe Republic Police, under the instruction or command of the second defendant, who was acting in his course and scope of employment with, third and fourth defendants was lawful?

Whether the plaintiffs sustained injuries because of the shooting by the first defendant, a duly attested member of the Zimbabwe Republic Police under the control or command of the second defendant who was acting in his course and scope of his employment with the third and fourth defendants?

Whether or not the second, third and fourth defendants are vicariously liable?

Whether or not it is just and equitable for the plaintiffs to be awarded the damages that they claim?

[7] 	The onus on issues (b) and (d) are on the plaintiff and onus and (a) and (c) are on the defendants. The allocation of onus is in sync with the general rule in such cases that the onus rests on the plaintiff to prove that he or she was shot and injured by the police. Once the plaintiff has discharged the onus resting on him or her, the defendants bear the onus to prove that the shooting was lawful. I now turn to the issues for determination. The first issue that arises for determination is whether it was the first defendant who shot the plaintiffs, and whether the injuries were caused by the gunshot fired by the first defendant.

Is it the first defendant who shot the plaintiffs and caused the injuries the two suffered [8]	 A closer scrutiny of the plea and the evidence indicates that the issue of who shot the plaintiffs and caused the injuries the two sustained is not disputed. For completeness, the evidence indicates that the plaintiffs were, in the early hours on 1 January 2019 at the Shopping centre celebrating the new year. They were, in the company of other patrons at the bar, where a radio speaker was placed at the veranda of the bar.  The first defendant who was armed with a CZ pistol with nine live rounds of 7 x 9mm fired two shots at the crowd.  The first plaintiff was hit on the left elbow, and second plaintiff on the left ankle. The medical report shows that the first plaintiff had a gunshot wound over the left elbow area, with clinical evidence of ulna nerve injury. In respect of the second plaintiff the medical report shows that he was shot and sustained an injury on the left ankle.  Therefore, the plaintiffs discharged the onus of proving that they were shot by a bullet discharged from the first defendant’s firearm, and that the injuries they suffered were caused by the gun shots fired by the first defendant.

Whether the shooting of the plaintiffs by the first defendant was lawful?

[9] 	The fact that the police 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 and safeguard the public from harm. See Chiriseni v Commissioner General of Police & Ors 2020 (2) ZLR 125 (H). It is the law that the police can use reasonable force to arrest a suspect who resists arrest or who is violent. In civil litigation, the question whether the force used was excessive in the circumstances is determinative as to whether the state will be held liable. The use of force, particularly the discharge of firearms, is only justifiable under circumstances where there is an imminent threat to life or serious bodily harm. The mere approach of a group armed with stones and empty beer bottles does not, by itself, constitute an immediate and pressing danger that would warrant the use of a firearm. More is required. There must be immediate danger to life and serious bodily harm.

[10] 	I now turn to the evidence.  It is important to state upfront that on one hand, the plaintiffs were not credible and reliable witnesses in respect of the circumstances leading to the shooting. It became clear that they sought to distance themselves as far as possible from the events at the bar and the veranda of the bar where the shooting took place.  On the other hand, the first defendant came across as a witness who had a clear recall of events. He was a very good witness, never stating more than he knew or believed and choosing his words with care. I accept his evidence without reservation. In addition, the evidence of the second defendant was not challenged in any material respects and there is no reason not to accept it. In other words, I am satisfied that the version of the first and second defendants is true and accurate, and version of the plaintiff’s is false and falls to be rejected.

[11]	 In the circumstances, the reliable evidence is as follows. On 31 December 2018 the second defendant deployed four officers to the Shopping Centre for New Year duties. At approximately 2 a.m. on 1 January 2019 a report was received that the four officers ordered that the bar be closed, but the patrons became violent and refused to leave the bar.  As a result of the report, the second defendant deployed a reinforcement team comprising of three officers, including the first defendant. The first defendant was armed with a CZ pistol nine live rounds of 7 x 9mm, and other officers were carrying baton sticks. At the arrival of the reinforcement team, the four officers were hiding in the storeroom behind the bar, and the crowd armed with stones, catapults and knobkerries and other dangerous weapons was pushing to enter the storeroom. The reinforcement team used the back door to enter the bar, and used baton sticks to try and disperse the crowd. When the police, now numbering seven got to the veranda, they were attacked by stones and empty beer bottles. This is corroborated by the unchallenged evidence of the second defendant who testified that during indications he saw debris of broken bottles and bricks scattered all over the veranda. The first defendant fired three warning shots in the air. The crowd, said to have numbered between fifty and seventy was not deterred and continued advancing and uttering words to the effect that the police were to be disarmed.  When it was 3.5 metres from the veranda, the first defendant fired two shots to the crowd. He was targeting the lower parts of the body. The crowd then dispersed.

[12] 	In the morning of 1 January 2019 indications were carried out at the scene and five spent cartages were recovered near the veranda and broken bottles and bricks were observed at the veranda of the bar.  At the shop nine windowpanes were broken, and they were glasses on the floor of the bar showing that stones were thrown from outside. The plaintiffs made indications that they were shot at 3.5 m from the veranda.

[13] 	The question is whether the first defendant acted in self-defense or out of necessity when he fired shots towards the crowd that was carrying various weapons advancing towards the veranda. The crowd was armed, however, the central question remains whether the first defendant fired in response to an imminent threat of harm or whether his actions were motivated by a different justification, such as an effort to disperse the crowd. The question is thus whether in the circumstances, the first defendant took appropriate steps to avoid injury to the members of the crowd. Upon reviewing the evidence, it is clear that the police officers were under imminent threat or danger to their lives. The first defendant being the only one armed with a firearm, first fired three warning shots to disperse the crowd, upon it continuing to advance and attack, he then fired two shots direct to the mob. The injuries to the plaintiffs corroborate the first defendant’s version that he targeted lower parts of the body. The second defendant was shot on the ankle and the first defendant on the elbow. Although under attack, the first defendant did not fire blindly into a crowd. He exercised control of where the projectiles would land.

[14] 	Credible evidence indicates that the first defendant had no alternative measures to manage the situation, reinforcements had been called but this did not stop the violence, the batons sticks had failed to push back the crowd, it was advancing throwing stones, and empty bottles, destroying the windows of the bar. I take the view that the decision to fire shots direct to the crowd meets the requirements of proportionality and reasonableness required in such situations.  Therefore, the court finds that the first defendant’s actions were justified by self-defence and the defence of other police officers and the avoidance of imminent danger and serious bodily harm.  The evidence indicates that he was not negligent, and it cannot be said that his actions were an excessive response to the situation. Therefore, the defendants have discharged the onus of proving lawfulness of the shooting on the balance of probabilities.

Conclusion

[15] 	I am satisfied that the plaintiffs have established on the balance of probabilities that they were shot by the first defendant. The defendants have proved that the first defendant’s conduct in causing the injury to the plaintiff was objectively reasonable in the circumstances of this case and therefore lawful. It is for these reasons that the action must fail.

[16] 	Because of the decision I have reached regarding the lawfulness of the shooting, the two remaining issues being whether the second, third and fourth defendants are vicariously liable and whether it is just and equitable for the plaintiffs to be awarded the damages that they claim do not arise for determination.

Costs

[17] 	The question of costs remains to be considered. Good grounds exist for a departure from the general rule that costs follow the event. The plaintiffs were shot and injured and had a right to test the lawfulness of the shooting. It is for this reason that I am of the view that it would not be in the interest of justice to mulct them with an order of costs. In the circumstances a no costs order would meet the justice of the case.

In the result, I order as follows:

The plaintiffs’ action is dismissed with no order as to costs.

Dube-Danda J:……………………………………………………….

Zimbabwe Lawyers for Human Rights, applicant’s legal practitioners

Civil division of Attorney General’s Office, defendant’s legal practitioners