On 21 September 1994, Lungile Lennox Ntamo was shot and killed by members of the South African Police Service at Tsomo in the Transkei. The deceased was a passenger on a bus travelling from Cape Town to Umtata. At Tsomo, he became embroiled in an argument with other passengers, grabbed one passenger, slapped him while pointing a cocked firearm at him. A shot was heard. The bus driver reported the incident to the police. Four policemen (Sergeant Manana in civilian clothes armed with a 9mm pistol, and three uniformed officers - Sergeants Baninzi and Mapongwana and Constable Msebi - each armed with R5 automatic rifles) were dispatched to investigate. The plan was for Manana to approach the deceased, introduce himself as a policeman and dispossess him of his firearm. After Manana introduced himself and attempted to take the deceased's firearm by placing the deceased's arm over his shoulder and ordering him to drop the weapon, the deceased pushed Manana aside. Manana ran for cover. At least three policemen then fired repeatedly at the deceased until he fell. The deceased sustained two fatal wounds to the right chest and various other entry and exit wounds, dying from bleeding in the chest. The deceased's surviving spouse and six minor children instituted an action for damages for loss of support against the Minister of Safety and Security as the employer of the police members.
The appeal was dismissed with costs. The High Court's finding in favour of the respondents on the merits (liability) was upheld. The question of quantum of damages was to be determined at a later date as previously ordered.
Where members of the South African Police Service fatally shoot a person and the Minister of Safety and Security pleads justification as a defence to a delictual claim for damages, the onus rests on the Minister to prove on a balance of probabilities that the killing was justified as being necessary for the protection of the police officers or members of the public. Where the evidence of the police witnesses is confusing, riddled with contradictions, and fails to establish clearly that the lives of the police or public were in danger at the time of the shooting, the defence of justification is not established and the Minister will be held vicariously liable for the delictual conduct of the police officers.
The Court observed that the evidence of the police witnesses as to what happened after Sergeant Manana approached the deceased was "confusing and riddled with contradictions" (quoting the court a quo with approval). The Court noted there was no evidence to suggest that members of the public were in danger of being shot by the deceased at the relevant time, despite the police witnesses claiming they were protecting the public. The judgment also noted that Constable Msebi did not testify, which potentially weakened the appellant's case. While not strictly obiter, the Court's comment that even in the absence of any evidence on behalf of the respondents, no finding could be made that lives were in danger, suggests a particularly weak case for justification on the facts presented.
This case is significant in South African law for affirming the principles governing police liability for fatal shootings in delict. It reinforces that where the state relies on a defence of justification for the use of lethal force by police officers, the onus rests squarely on the state to prove on a balance of probabilities that the killing was necessary for protection of life. The case demonstrates the rigorous scrutiny courts apply to claims of justification, particularly where police evidence is contradictory and unconvincing. It contributes to the jurisprudence on vicarious liability of the state for unlawful acts of police officers and the high standard of proof required to establish lawful use of lethal force. The case emphasizes that vague or inconsistent evidence about perceived threats will not satisfy the justification defence, protecting citizens' constitutional rights to life and dignity while holding law enforcement accountable.