High court finds Eastern Cape municipality liable after mayor’s guard shoots boy, 5

The high court has ruled that an Eastern Cape municipality is responsible for damages after the mayor's bodyguard shot his neighbour's five-year-old boy, paralysing him.  

As Nathan Martin lay in his mother's arms around 8.30pm at home in Reservoir Hills, Butterworth, on December 2 2017, a stray bullet hit him. He was left with severe brain damage and speech impediments.

His parents discovered that Lukhanyo Tukani, the mayor of Mnquma's bodyguard, had fired the shot.

Nathan's father Lesley, his mother Defphney and sibling Megan sued the municipality and Tukani in the high court in Makhanda for damages resulting from Nathan's bullet wound.

Judge John Smith, in judgment, said: “The heart-rending facts of this case evoke harrowing images from any parent’s worst nightmare.”

Nathan's parents told the court that the boy had just finished his favourite food, muffin and custard, and that “all hell broke loose” when he joined his mother in her bedroom a few minutes later.

His father heard four gunshots fired in rapid succession.

The judgment reads that Nathan's father's first concern was for his family.

“He shouted for them to join him in the passage. His wife came out of the bedroom clutching Nathan in her arms. He could immediately see that Nathan was bleeding profusely.

“They laid Nathan down in the passage and screamed for help. They were eventually helped by neighbours, who took Nathan and Mrs Martin to hospital.”

The Martin home is a prefabricated structure with hollow walls. The bullet entered a bedroom window about a metre above the floor. Martin later discovered two more gunshot holes in the roof sheeting.

He told the court that he did not hear any disturbance outside.

“Mrs Martin said that after Nathan had joined her in the bedroom, he said his usual night-time prayer and the two of them recited the Our Father together,” the judgment reads.

“Seconds later she heard gunshots. It sounded to her as if something had struck the window. She heard her husband screaming from the kitchen and picked Nathan up and moved into the passage.

“It was only then she noticed that Nathan was bleeding. She was bleeding from a superficial wound on her cheek. She had also subsequently noticed the two holes in the roof sheeting.”

Tukani was the municipality’s only witness.

He said he was employed by the municipality as the executive mayor's bodyguard and had been given a 9mm pistol for the job. He said he was allowed to keep the firearm off-duty because he was on standby at all times and could be called out at any moment to accompany the mayor to functions or meetings.

The judgment stated that according to Tukani's version, on the night “between 10pm and 11pm, he was asleep at his home when he was woken up by his girlfriend. She told him that someone outside was calling his name.

“He then also heard his friend Melikhaya calling him and imploring his help. When he opened his front door, he saw that Melikhaya had been pushed against an aloe bush next to his fence by an unknown assailant.

“The assailant was holding onto Melikhaya with his left hand and was clutching a knife in the other. He noticed blood on Melikhaya’s left shoulder. He shouted at the assailant to release Melikhaya but he instead moved closer to the gate, still holding onto Melikhaya and wielding the knife in a threatening manner. The assailant then boldly moved towards the gate and tried to open it. At that stage, he was about seven paces away.”

The judgment stated that Tukani ran into the house to fetch his firearm.

“When he returned, he saw that the assailant was still holding Melikhaya, but was moving away from the gate. He fired a warning shot into the air.

“After he fired another warning shot, the assailant released Melikhaya and started moving further in the direction of the gate. Mr Tukani then fired a third shot into the ground next to the assailant’s left leg, causing him to flee. 

“He said that he had fired the shot at an angle into the tarred road and had seen sparks fly from where the bullet had struck the tar. He assumed the bullet must have ricocheted and penetrated the Martin residence.”

Tukani said that while attending to Melikhaya, he heard people screaming that a bullet had hit a child at the Martins' home and hurried to assist. 

He stated that he asked a neighbour to take the child to hospital, went home to dress, and then went to the hospital to see how the child was doing.

The municipality argued that Tukani did not act in the scope of his employment and that the firearm was for the sole purpose of guarding the mayor. It also denied responsibility for ensuring Tukani returned the firearm when he was not on duty.

This week Smith found in favour of Nathan's family after they argued that Tukani was acting within the scope of his job with the municipality when he opened fired with one of the shots injuring Nathan and that the municipality had failed to ensure that the gun provided to Tukani was retained and secured after he knocked off work and that he was adequately trained to handle a firearm.

Smith found the municipality and Tukani liable for Nathan and his family's damages and ordered it to pay the legal fees.

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