{"id":237976,"date":"2022-09-23T09:37:23","date_gmt":"2022-09-23T07:37:23","guid":{"rendered":"https:\/\/www.groundup.org.za\/article\/municipality-liable-for-child-shot-by-mayors-bodyguard\/"},"modified":"2022-09-23T09:37:23","modified_gmt":"2022-09-23T07:37:23","slug":"municipality-liable-for-child-shot-by-mayors-bodyguard","status":"publish","type":"post","link":"https:\/\/www.myza.co.za\/press\/municipality-liable-for-child-shot-by-mayors-bodyguard\/","title":{"rendered":"Municipality liable for child shot by mayor\u2019s bodyguard"},"content":{"rendered":"<div id=\"article_body\">\n<p><a class=\"bigger-image\" href=\"https:\/\/www.groundup.org.za\/media\/uploads\/images\/Graphics\/lisa_nelson\/scales-of-justice.jpg\" target=\"_blank\" rel=\"noopener\"><img decoding=\"async\" alt src=\"http:\/\/www.myza.co.za\/press\/wp-content\/uploads\/2022\/09\/municipality-liable-for-child-shot-by-mayors-bodyguard.jpg\"><\/a><\/p>\n<p class=\"caption\">Illustration: Lisa Nelson<\/p>\n<ul>\n<li>Mnquma Municipality has been found liable for damages after a child was hit by a stray bullet fired by the mayor\u2019s bodyguard.<\/li>\n<li>The bodyguard was off duty and claimed he was protecting his friend who was being attacked, but the court ruled he had acted negligently.<\/li>\n<li>The five-year-old suffered severe brain damage and paralysis.<\/li>\n<\/ul>\n<p>Mnquma Municipality in the Eastern Cape is liable to pay damages to the family of a five-year-old, who was seriously injured after being hit by a stray bullet fired by the mayor\u2019s bodyguard, the Makhanda High Court has ruled.<\/p>\n<p>The \u201cclose protection officer\u201d, Lukhanyo Tukani, was off-duty at the time.<\/p>\n<p>But Judge John Smith has ruled that his actions were \u201cclosely linked\u201d to the purpose for which the municipality had employed him, and the municipality is vicariously liable to the child\u2019s family for any damages they may prove.<img loading=\"lazy\" decoding=\"async\" alt class=\"leave\" height=\"1\" id=\"gu_counter\" src=\"http:\/\/www.myza.co.za\/press\/wp-content\/uploads\/2022\/09\/municipality-liable-for-child-shot-by-mayors-bodyguard.gif\" width=\"1\"><\/p>\n<p>\u201cThe heartrending facts of this case evoke harrowing images from any parent\u2019s worst nightmare,\u201d said Judge Smith.<\/p>\n<div class=\"editor-summary\"><strong>Read the full judgment <a href=\"https:\/\/www.groundup.org.za\/media\/uploads\/documents\/lrm_v_mnquma_municipality_2022_453-2020_ecm.pdf\">here<\/a><\/strong><\/div>\n<p>The little boy was being cradled in his mothers arms in his bed on the evening of 2 December 2017 when he was struck by the bullet fired by Tukani, who lived next door.<\/p>\n<p>As a result, he suffered severe brain damage, resulting in paralysis and a speech impediment.<\/p>\n<p>His father, mother and older sibling (names have been withheld in the judgment) sued both the municipality and Tukani for \u201csevere emotional shock and trauma\u201d and for damages for the boy\u2019s injuries.<\/p>\n<p>The family said Tukani had been acting in the course and scope of his employment with the municipality as a security officer, that the municipality had failed to ensure that he had handed in his firearm when he finished work that day, and it had failed to ensure that he was trained and experienced in the use of the firearm.<\/p>\n<p>Judge Smith said the municipality had denied these allegations. It said Tukani was only employed to protect the mayor and his actions on that night were unrelated to his job. It also denied that it had a legal obligation to ensure that he handed in his gun when he was off-duty.<\/p>\n<p>Judge Smith said the child\u2019s mother and father had testified during the trial that their son had enjoyed his favourite treat, a muffin and custard, and had said his usual nighttime prayer when \u201call hell broke loose\u201d and they heard gunshots, about four in quick succession.<\/p>\n<p>The father said his wife came out of the bedroom clutching their child in her arms. He was bleeding profusely.<\/p>\n<p>The bullet had penetrated the walls of their prefabricated home just beneath the bedroom window. He subsequently noticed two other bullet holes in the roof sheeting.<\/p>\n<p>Tukani, in his evidence, said he was an experienced security guard. While employed to protect the mayor, he was on standby at all times. He had been asleep that evening when he heard someone calling for him outside. It was his friend who was being attacked by an unknown assailant with a knife.<\/p>\n<p>Tukani said the assailant, while still holding on to his friend, \u201cboldly moved\u201d towards his gate. Tukani ran inside and fetched his firearm. Outside, he fired two warning shots in the air and a third into the ground, firing at \u201can angle\u201d.<\/p>\n<p>When he heard screaming from next door, he immediately went to assist. He asked a neighbour to take the child to hospital and later went to see how he was doing.<\/p>\n<p>Turning to the issue of liability, Judge Smith said that while the municipality had insisted that he was only employed to guard the mayor, his job description form said something different, that his law enforcement and protection duties were much broader and the municipality could require him to perform other tasks.<\/p>\n<p>\u201cThere can be little doubt that his actions that night fell squarely within the ambit of his job description \u2026 that when he reacted to (his friend\u2019s) pleas for help, he was indeed acting within the course and scope of his duties,\u201d the judge said.<\/p>\n<p>\u201cAnd even if I am wrong in this regard, then at very least the plaintiffs have established that his actions were sufficiently closely linked to the purposes and business of the municipality \u2026 as comprehensively explained in his job description.\u201d<\/p>\n<p>Regarding the issue of wrongfulness, the judge said he had to decide whether a reasonable person would have foreseen that the shooting could injure another person.<\/p>\n<p>The judge said Tukani\u2019s version of events was \u201cstrange\u201d because, on his version, the assailant was \u201cliterally bringing a knife to a gunfight\u201d.<\/p>\n<p>\u201cHe was aware that the houses in the area were prefabricated structures with hollow walls, which could be easily penetrated by a projectile. He should therefore have foreseen the reasonable possibility of the bullet injuring another person \u2026 of the possibility of the bullet ricocheting if fired at an angle on a solid surface such as a tarred road.\u201d<\/p>\n<p>Judge Smith found Tukani had acted negligently.<\/p>\n<p>He ordered the municipality and Tukani to be jointly liable for whatever damages the family could prove and to pay their costs of the application.<\/p>\n<\/p><\/div>\n<div id=\"article_copyright\">\n<p>\u00a9 2022 GroundUp. This article is licensed under a <a href=\"http:\/\/creativecommons.org\/licenses\/by-nd\/4.0\/\" rel=\"license\">Creative Commons Attribution-NoDerivatives 4.0 International License<\/a>.<\/p>\n<p>You may republish this article, so long as you credit the authors and GroundUp, and do not change the text. Please include a link back to the original article.<\/p>\n<p>We put an invisible pixel in the article so that we can count traffic to republishers. All analytics tools are solely on our servers. We do not give our logs to any third party. Logs are deleted after two weeks. We do not use any IP address identifying information except to count regional traffic. We are solely interested in counting hits, <b>not tracking<\/b> users. If you republish, please do not delete the invisible pixel.<\/p>\n<\/p><\/div>\n<p><img decoding=\"async\" src=\"http:\/\/www.myza.co.za\/press\/wp-content\/uploads\/2022\/09\/municipality-liable-for-child-shot-by-mayors-bodyguard.jpg\"><a href=\"https:\/\/www.groundup.org.za\/\">Source: GroundUp<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"<p>Illustration: Lisa Nelson Mnquma Municipality has been found liable for damages after a child was hit by a stray bullet fired by the mayor\u2019s bodyguard. The bodyguard was off duty and claimed he was protecting his friend who was being attacked, but the court ruled he had acted negligently. The five-year-old suffered severe brain damage [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":237977,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_genesis_hide_title":false,"_genesis_hide_breadcrumbs":false,"_genesis_hide_singular_image":false,"_genesis_hide_footer_widgets":false,"_genesis_custom_body_class":"","_genesis_custom_post_class":"","_genesis_layout":"","ngg_post_thumbnail":0,"_jetpack_memberships_contains_paid_content":false,"footnotes":"","jetpack_publicize_message":"","jetpack_publicize_feature_enabled":true,"jetpack_social_post_already_shared":true,"jetpack_social_options":{"image_generator_settings":{"template":"highway","default_image_id":0,"font":"","enabled":false},"version":2}},"categories":[9928],"tags":[28001],"class_list":{"0":"post-237976","1":"post","2":"type-post","3":"status-publish","4":"format-standard","5":"has-post-thumbnail","7":"category-groundup","8":"tag-groundup","9":"entry"},"jetpack_publicize_connections":[],"jetpack_featured_media_url":"https:\/\/www.myza.co.za\/press\/wp-content\/uploads\/2022\/09\/municipality-liable-for-child-shot-by-mayors-bodyguard.jpg","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/www.myza.co.za\/press\/wp-json\/wp\/v2\/posts\/237976","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.myza.co.za\/press\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.myza.co.za\/press\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.myza.co.za\/press\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.myza.co.za\/press\/wp-json\/wp\/v2\/comments?post=237976"}],"version-history":[{"count":0,"href":"https:\/\/www.myza.co.za\/press\/wp-json\/wp\/v2\/posts\/237976\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.myza.co.za\/press\/wp-json\/wp\/v2\/media\/237977"}],"wp:attachment":[{"href":"https:\/\/www.myza.co.za\/press\/wp-json\/wp\/v2\/media?parent=237976"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.myza.co.za\/press\/wp-json\/wp\/v2\/categories?post=237976"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.myza.co.za\/press\/wp-json\/wp\/v2\/tags?post=237976"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}