The KwaZulu-Natal High Court in Pietermaritzburg has dismissed a loss of support claim brought against the Minister of Police by the grieving family of a slain Tactical Response Team (TRT) officer.
The plaintiffs, Florence Mabhoni Kobela, the mother of the deceased and the mother of the deceased’s child, sought damages for loss of support following the tragic death of Constable Bongani Lembede, who was shot and killed by fellow police constable Thembelihle Ngcobo using a state-issued firearm on March 3, 2014.
The plaintiffs argued that senior management within the South African Police Service (SAPS) were fully aware of the volatile nature of the relationship between Lembede and Ngcobo and owed a constitutional duty of care to protect Lembede from harm.
Specifically, the plaintiffs alleged that the police were negligent under Section 102 of the Firearms Control Act by returning Ndlovu’s official firearm to her in May 2013 without conducting a formal inquiry into her fitness to possess a weapon.
The legal battle centered on a history of domestic friction between the two constables dating back to October 2012.
According to testimony from Lembede’s operational commander, Colonel Delrys Genias Lamech, and unit commander, Colonel Mmeli Isaiah Ngubane, senior staff intervened immediately when a domestic dispute arose between the pair.
In late October 2012, Lembede sought an interim protection order against Ngcobo after she struggled to accept the end of their brief romantic relationship. SAPS leadership acted swiftly by confiscating Ngcobo’s firearm, transferring her to the Thornville police station to separate the parties, and referring her to employee wellness services for depression and counseling.
Around May 2013, after completing her medical counseling and being cleared by a doctor, Ngcobo requested to return to the TRT unit. The court heard that a meeting was convened involving both Lembede and Ngcobo, where both officers assured management that their romantic ties were completely over and that they anticipated no future conflicts.
Lembede explicitly consented to her return, and management strategically placed them on entirely different shifts to minimise operational contact. No further complaints were reported to management for nearly a year until the fatal shooting took place.
Cross-examination during the trial exposed deep discrepancies between the narrative presented in Lembede’s initial 2012 protection order and the oral evidence.
Furthermore, compelling evidence revealed that despite telling his superiors the relationship was over, Lembede had secretly resumed intimacy with Ngcobo. At the time of the fatal shooting, Ngcobo was heavily pregnant with Lembede’s child.
The trial court heard that Lembede had a partner, and he had insisted that Ngcobo keep their affair a secret. Following Ngcobo’s pregnancy, Lembede rejected her, causing her to suffer from depression.
In analysing the elements of delictual liability, Judge Sibiya emphasised that while the State bears a clear constitutional obligation to protect citizens from violence, liability requires proof of a wrongful act, negligence, and direct causation. The court found that the police commanders acted reasonably and appropriately given the assurances and medical clearances they had received.
Judge Sibiya noted that because Lembede had concealed the ongoing relationship from his superiors and never lodged subsequent complaints, the tragic outcome was not objectively foreseeable to the SAPS command structure.
It was further added that the senior police officials could not be held legally liable for the tragedy, as they had taken appropriate preventative steps based on the information available to them at the time.
The court concluded that even if a formal fitness inquiry had been initiated prior to returning the firearm, it likely would have cleared Ndlovu given Lembede’s own endorsement of her return and her medical clearance.
Expressing deep sympathy for the indigent mother and the family’s profound loss, the court ultimately ruled that the plaintiffs had failed to discharge the necessary onus of proof to establish state negligence.
The application was dismissed, with the court ordering each party to bear its own legal costs.
sinenhlanhla.masilela@iol.co.za
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