Junior Mathe and Mike Viyo v Kizitho Mahachi and Others

On 1 January 2019, at approximately 2:30 am at Lugwalo Shopping Centre, Lower Gweru, two plaintiffs were shot by the first defendant, a police officer armed with a CZ pistol. The incident occurred during New Year celebrations when police officers had ordered a bar to be closed. Four police officers initially deployed were attacked by patrons and retreated to a storeroom. A reinforcement team of three officers, including the first defendant (armed with a CZ pistol with nine live rounds), arrived to assist. Upon arrival, they found a violent crowd of 50-70 people armed with axes, knives, stones, logs, knobkerries, catapults, and empty beer bottles attacking the officers and advancing on the storeroom. The reinforcement team attempted to disperse the crowd with baton sticks but were attacked with stones and bottles. The first defendant fired three warning shots in the air, but the crowd continued advancing and threatening to disarm the police. When the crowd was 3.5 metres from the veranda, the first defendant fired two shots toward the crowd, aiming at lower body parts. The first plaintiff was shot in the left elbow (with clinical evidence of ulna nerve injury) and the second plaintiff in the left ankle (requiring surgery to remove the bullet). The plaintiffs claimed delictual damages of RTGS100.00 and USD$10,000.00 each, alleging unlawful shooting.

• Whether the shooting of the plaintiffs by the first defendant was lawful
• Whether the plaintiffs sustained injuries as a result of the shooting by the first defendant
• Whether the use of force by the police officer was reasonable and proportionate in the circumstances
• Whether the first defendant acted in self-defence or out of necessity
• Whether the second, third and fourth defendants are vicariously liable for the actions of the first defendant
• Whether it is just and equitable for the plaintiffs to be awarded damages

The plaintiffs' action was dismissed with no order as to costs.

The use of firearms by police officers is lawful where: (1) there is an imminent threat to life or serious bodily harm to the officers or others; (2) alternative, less harmful measures have been attempted and failed; (3) the force used is proportionate and reasonable in the circumstances; and (4) the officer exercises control and restraint in deploying the firearm (such as firing warning shots first and targeting non-lethal body areas where possible). The mere approach of an armed group does not by itself constitute immediate danger warranting firearm use—there must be an actual imminent threat to life and serious bodily harm. In civil litigation for delictual damages arising from police shootings, the plaintiff bears the initial onus of proving they were shot and injured by police. Once this is established, the onus shifts to the defendant to prove on a balance of probabilities that the shooting was lawful. Self-defence and necessity can justify the use of force where officers face a violent, armed mob that cannot be dispersed by lesser means.

The court observed that while police officers are authorized to carry firearms in performing their duties, this does not permit use at their whim or caprice, especially given that the objects of the police service include protecting and safeguarding the public from harm. The court noted that good grounds may exist for departing from the general rule that costs follow the event, particularly where plaintiffs who were genuinely injured had a legitimate right to test the lawfulness of police action, even where that action is ultimately found to be lawful. In such circumstances, a no-order-as-to-costs may meet the justice of the case and it would not be in the interests of justice to mulct injured plaintiffs with costs merely because their challenge was unsuccessful.

This case is significant in Zimbabwean law (applicable to South African jurisprudence given similar legal principles) as it clarifies the test for lawful use of force, particularly firearms, by police officers in crowd control situations. It establishes that police use of firearms can be justified where there is an imminent threat to life or serious bodily harm, and where alternative measures have failed. The case demonstrates the application of proportionality and reasonableness tests in assessing police conduct, requiring that officers take appropriate steps to avoid injury (such as warning shots and aiming at lower body parts) before resorting to direct force. The judgment also illustrates judicial willingness to exercise discretion on costs where plaintiffs had legitimate grounds to challenge police action, even where the action ultimately fails. The case provides guidance on the evidentiary burden in police shooting cases: plaintiffs must prove they were shot and injured by police, whereupon the burden shifts to defendants to prove the shooting was lawful.