The state has escaped liability in a case involving a woman who was left with a bullet lodged in her back after getting caught in the crossfire of a shootout between police and a gang of hijackers.
On 21 June 2013, Rose Modise was at the Randfontein taxi rank when she found herself in the middle of an exchange of fire between police and a gang of hijackers who had stolen a police vehicle.
She was trying to seek shelter when she was hit in her right shoulder blade – where the bullet remains stuck today, with doctors having warned her any attempt to remove it could prove fatal.
In 2014, Modise issued summons against the minister of safety and security in the High Court in Pretoria.
In the court papers, she alleged her injuries were the result of negligence on the part of the police, who had acted both wrongfully and unlawfully.
She argued the officers at the scene had failed to issue a warning of their intention to fire and that they had opened fire in dangerous and inopportune circumstances.
She also argued they had opened fire without properly considering the direction in which they were shooting and that the incident could have been avoided.
The minister defended the claim and denied the allegations – or at least knowing about them – in his papers.
But the trial didn’t even get that far. The case was finally heard last month. Modise’s lawyers called only two witnesses: her and an independent firearms and ammunition expert.
The minister’s lawyers then immediately moved for absolution, arguing Modise and her team had not made out a case for them to answer to.
And in a ruling handed down last week, the court agreed. On the stand Modise, had conceded that in the midst of the chaos that day, she had not seen who shot her.
“This means that she could not testify that it was the police who shot her,” Judge Peter Mabuse said in delivering the court’s ruling. Modise’s lawyers had relied heavily on her evidence that she had seen a policewoman standing at a certain point next to a block of flats.
However, the judge said: “But [she] did not see this woman shoot her with a gun. She did not say why this woman was standing there. [Her] evidence does not go beyond seeing this woman standing there.”
Mabuse said it had been for Modise to show the policewoman had shot her or at least could have shot her.
“[Her] evidence does not satisfy such requirements. Any finding by this court that the policewoman shot [her] will be pure speculation,” said Mabuse.
Modise’s lawyers yesterday said she had no plans to challenge the ruling at this stage