Small win for accidental police shooting victim

12 June 2019 | Justice

A former Iveco bus driver wounded by a stray bullet fired from a police officer's gun has been awarded N$150 000 in damages after suing the safety and security ministry for N$1.2 million.

Ndilyowike Haishonga (31) was accidentally shot in a scuffle between a police officer and suspected robber on 27 September 2016. The bullet remains lodged in his body to this day, dangerously close to his heart. Surgeons say it is too risky to remove the bullet. Haishonga testified in court that he suffers constant pain and is dependent on painkillers. Haishonga also testified that he has not been able to work since the incident.



Small win

Last week, High Court Judge Hannelie Prinsloo found in favour of Haishonga although the court order awarded him substantially less than he had sued for.

She ordered that Haishonga be paid N$100 000 for pain and suffering, N$50 000 for emotional and psychological pain and N$560 for past medical treatment and examination, plus 20% interest calculated from the date of judgment.

He was also awarded the costs of the lawsuit, but no order was made as to future medical expenses. Haishonga had asked for an additional N$1 million for future medical expenses, as well as N$50 000 for past medical treatments.

The Namibian police strongly denied responsibility for the accidental shooting at the Okuryangava Stop and Shop shopping centre.

Lawyers argued there was no evidence, forensic or otherwise, that the trigger was pulled by the police officer and therefore no “unlawful shooting or assault” took place.





They confirmed that an attempted murder investigation was opened in September 2016, which is still pending, nearly tThey confirmed that an attempted murder investigation was opened in September 2016, which is still pending, nearly three years later.

The defendants argued that the onus was on Haishonga to prove who shot him, which they claimed was not done.

Constable Daniel Kashela, the officer who was involved in the tussle with a suspected robber, testified that he was trying to disarm the knife-wielding man when his service pistol discharged accidentally and the bullet struck Haishonga, who was sitting in a bus.

Kashela said the suspect managed to remove his pistol from its holster and pointed it at his stomach. “While fighting for the gun the suspect almost overpowered me and turned the gun in my direction while holding the trigger and the trigger went off, almost [shooting me] through my abdomen.”

He testified that a moment later he saw Haishonga “holding himself and bleeding from the rib's side”.

He rushed Haishonga to hospital.

Haishonga testified that while he was sitting in the bus he heard a commotion and looking up saw “a young boy who was running away very fast” being chased by several security guards, civilians and a police officer. He claimed that while being rushed to the hospital, the police officer frequently said “how sorry he was and how he made a mistake when he accidentally shot me”. The defence strenuously denied this.

Haishonga also testified that Kashela had told medical personnel at the Katutura State Hospital “that he had shot me accidentally while trying to apprehend a robber.”



Negligence

During the trial, it was revealed that the safety pin of the police-issued firearm in Kashela's possession “did not work”.

The Legal Assistance Centre (LAC) team acting on behalf of Haishonga argued that the shooting was negligent because Kashela had failed to take all necessary steps and measures to ensure the firearm was fit for the purpose for which it was issued to him.

The defence argued nevertheless that there is no conclusion as to who had pulled the trigger.

They further claimed Haishonga had initially told the police that he did “not really know who fired the shot”.

Psychologist Dr Shaun Whittaker testified that Haishonga is suffering from severe post-traumatic stress disorder as well as major depression as a result of the shooting.

Haishonga was represented by Sharen Zenda of the LAC while the ministry was represented by Mathias Kashindi.



JANA-MARI SMITH

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