Xolani Patrick Lingani v Minister of Police

On 2 April 2020, five days after the level 5 COVID-19 lockdown commenced, the plaintiff was struck and injured in his left thigh by a rubber bullet allegedly fired by police officers. The plaintiff had been drinking a soft drink near a container spaza shop with a female companion when police arrived to enforce lockdown regulations prohibiting gatherings. Sergeant Lubishe exited the police vehicle first, spoke to the plaintiff and requested him to disperse. The plaintiff ignored the request. While Lubishe turned to address four other young men at the scene, intending to issue a formal warning of arrest, two shots were fired by his colleagues. The plaintiff suffered an abrasion approximately 4cm x 4cm on his left thigh. He attended Cecilia Makiwane Hospital the following day (3 April 2020) where he was treated with painkillers, wound dressing, and anti-tetanus vaccination. The wound was assessed as non-serious with expected full recovery within 5-7 days. The Minister of Police denied that his employees shot the plaintiff and alternatively pleaded that if they did, the shooting was lawful in the circumstances. The matter proceeded as a separated trial on the issue of liability only.

• Whether the plaintiff was struck by a rubber bullet fired by an employee of the defendant
• Whether the shooting of the plaintiff was wrongful and negligent
• Whether the use of force by police officers was justified in the circumstances of enforcing COVID-19 lockdown regulations
• Whether the police followed proper protocol and warnings before using force
• What cost order is appropriate in a separated trial on liability where quantum may fall within magistrates' court jurisdiction

1. The defendant is liable to the plaintiff for such damages as the plaintiff is able to prove for the harm caused to him as a result of the wrongful and negligent conduct of the employees of the defendant on 2 April 2020. 2. The costs occasioned by the trial in respect of the separated issue of liability are reserved.

The binding legal principles established are: (1) Police officers enforcing COVID-19 lockdown regulations remain bound by established policing protocols and cannot use force without proper warnings simply because instructions are ignored; (2) Even during a state of emergency, the use of force by police officers must be justified and proportionate - the mere fact that civilians fail to immediately comply with dispersal instructions does not justify the firing of weapons; (3) Police protocol requires verbal engagement, followed by a warning of arrest if non-compliance continues, and only then may further action be taken if the warning is ignored; (4) The Minister of Police is vicariously liable in delict for wrongful and negligent conduct of police officers acting in the course and scope of their employment; (5) Wrongfulness and negligence are established where police officers fire rubber bullets at civilians without justification and without following proper protocol, particularly where the situation was calm and under control; (6) The test for negligence is whether a reasonable person in the position of the police officers would have acted as they did (applying Kruger v Coetzee); (7) In separated trials on liability, where quantum may ultimately fall within magistrates' court jurisdiction, costs should be reserved for determination by the court deciding quantum rather than awarded at the liability stage.

The court made several non-binding observations: (1) The court noted that courts continue to be seized with matters emanating from the COVID-19 pandemic and national lockdown, indicating ongoing judicial engagement with lockdown-related disputes; (2) The judge observed that some latitude might be allowed in policing methods 'given the recent onset of the pandemic', suggesting context matters, though this did not assist the defendant on the facts; (3) The court commented that peripheral issues such as the gender of the plaintiff's companion, whether the shop was on his property, and whether he was shot inside or outside his yard were unnecessary to resolve given the established material facts; (4) The judge noted that the Minister's employees 'violated their own protocol and acted in heavy-handed fashion absent any justification', providing a broader characterization of police conduct beyond what was strictly necessary for the legal finding; (5) The court observed that 'there is a real possibility that the quantum of damages which may be awarded will fall within the jurisdiction of the Magistrates' Court' based on the medical evidence showing minor injuries with expected full recovery within a week, though this was not a definitive finding; (6) The judgment contains implied criticism of the Minister's legal strategy in failing to call material witnesses (the senior officer and two other officers with shotguns), though this is more properly characterized as an evidential matter rather than pure obiter.

This case is significant in South African jurisprudence for several reasons: (1) It addresses police conduct and accountability during the unprecedented COVID-19 lockdown period, establishing that emergency regulations do not permit deviation from fundamental policing protocols and constitutional rights protections; (2) It clarifies that police officers must follow established protocols (verbal warning, warning of arrest, then action) even when enforcing emergency lockdown regulations, and cannot use force simply because 'police must be listened to'; (3) It reinforces delictual liability principles applicable to the state for wrongful and negligent conduct by police officers acting in the course and scope of their employment; (4) It demonstrates the application of the Kruger v Coetzee test for determining negligence in the context of police use of force; (5) It provides guidance on cost orders in separated trials where quantum may ultimately fall within magistrates' court jurisdiction, following the Mpukane principle of reserving costs rather than awarding them at the liability stage; (6) It illustrates how courts assess credibility and draw inferences where the state fails to call material witnesses (the other officers present at the scene).