A Durban family accused the SAPS of using a “tactical manoeuvre” to scupper their civil claim against the Minister of Police, stemming from policemen allegedly opening fire on their vehicle with high-calibre weapons, thinking they were hijackers.
Asma Mahomed, 30, who was in the early stages of pregnancy during the July 2020 shooting incident, had her right leg amputated below the knee after being struck by a bullet.
Her husband, Omar Ismail, 32, who drove their VW Polo, sustained gunshot wounds to his head, neck, shoulders, and lives with bullet fragments lodged in his head.
The couple’s then 22-month old daughter, Yusraa, who was sitting at the back with her mother, has bullet shrapnel lodged in her stomach, near vital organs.
The trial was due to run for a week, until tomorrow, at the Durban High Court.
Instead, the legal team representing the minister applied for an adjournment so that they could facilitate the “urgent appointment of senior counsel” to challenge the damages claim.
This after the matter was declared trial-ready in September 2023, notice of set down handed in December and the defendants’ legal team indicated in last week’s (August 29) pre-trial proceedings that they were ready for trial.
The minister's representatives informed the lawyers for the applicants the next day at 16:10 about the postponement application they would bring, and confirmed that the head of the SAPS’ provincial legal services department, Major-General Kevin James, approved payment of the family’s legal costs on an attorney-client scale.
The Sunday Tribune was informed that the minister’s representatives would have withdrawn from the matter had their counterparts followed through with their planned opposition to the adjournment application tomorrow (Monday).
The legal services department raised as justification for the adjournment that the four implicated policemen – Donovan Naidoo, Menzi Shabalala, Yogandran Munsami and Talent Mseleku – were charged criminally and the matter was pending.
And that the charges were not instituted when the civil matter trial date was set.
The charges they each faced were; three counts of attempted murder and defeating/obstructing the course of justice. They allegedly removed cartridges from the crime scene.
All four accused are members of the SAPS’ National Intervention Unit.
It was also indicated that the four officers were informed on August 29 that the Independent Police Investigative Directorate recommended an internal disciplinary hearing for them.
The minister’s legal team doubted that the matter would have been completed in the week allocated and were of the view that the plaintiffs would suffer no financial prejudice because costs for the adjournment were tendered.
In the affidavit Mahomed’s legal team prepared to oppose the application, which the Tribune viewed, she said she was “perplexed” at learning about it at a “very late hour”.
She said they received a phone call from the minister’s legal representative, and James’ letter confirming the instruction, via a WhatsApp message.
Mahomed said the minister's representatives indicated at the pretrial proceedings that they were ready for trial.
She said according to the minutes from the Judicial Case Management conference on June 23, it confirmed that the defendants were aware of all the “merits, evidentiary and procedural aspects” of the matter.
Similarly, Mahomed was advised that the “the defendant’s counsel stated that they were ready to proceed to trial, having done all the necessary consultations with the defendants’ witnesses”.
“The primary issue for determination by the court is whether the actions and shooting was justified.
“I cannot understand why General James presumes that by simply tendering ‘all legal costs incurred, including costs of Counsel’, this court should adjourn the trial.”
She said the costs order wouldn’t compensate for the “severe prejudice” they will suffer from an adjournment.
Mahomed said the “wasteful and fruitless expenditure” should be frowned upon.
She said her husband and her suffered daily from the consequences of the shooting.
“I have been relegated to a lower position at work owing to the loss of my right lower limb. My husband has bullet fragments lodged in his brain that cannot be surgically removed and poses a mortal risk to him.”
She said the negative effects from the lodged fragments resulted in eyesight challenges, fading memory and his overall physical wellbeing worsened.
“If my husband is alive at a later time, his competency to give evidence will be severely affected.”
Mahomed was concerned that the delays would negatively affect their ability to recollect occurrences from the day of the shooting, and this could impact adversely on their civil claim.
She believed that the other action taken against the policemen had nothing to do with the facts and legal issues in this matter.
“I believe the police are using the appointment of a senior counsel as a tactical manoeuvre… moreover, I gain the sense that the defendant is involved in a kind of protectionism for the policemen.”
Mahomed said there were no new developments and the eleventh hour application was not justified.
Judge Jacqueline Henriques ordered that the defendants return to court with their senior counsel next week to make any amendments and deal with any pretrial issues and to pay costs as agreed.