Family of slain DUT student go after security company and university
Mlungisi Madonsela died after being shot in an alleged altercation with security guards at the Durban University of Technology on February 12 2019.
Image: Thuli Dlamini
The family of slain Durban University of Technology (DUT) student Mlungisi Madonsela will have to adjust their claims if they want to sue the university for his death.
This emerged at the Durban civil claims court on Thursday, where the university raised complaints with the particulars of the family’s claims against it.
The Madonsela family is seeking reparations for the death of Mlungisi, a final year student who was allegedly shot by a security guard from a company contracted by the university during a protest in February 2019.
Madonsela’s parents and three siblings want the university and Xcellent security to compensate them for their pain and suffering; emotional shock, trauma, grief and burial cost because of the alleged actions of their employee, listed only as Mr Bhengu.
In their court application in April 2022, the Madonsela family said Bhengu was an employee of Xcellent who had a contract with DUT to provide security services. That meant that Bhengu was either acting as an employee or agent of the university, and both the security company and DUT Bhengu’s principal, meaning there is a case of vicarious liability to answer by all three defendants
The Madonselas said in their affidavit Mlungisi was the first person in the family to attend university and they had high hopes he would graduate and get a job to support his elderly parents and siblings. The family relies on an informal sugarcane trading business.
“During university term breaks and as the youngest among his siblings, Mlungisi would assist his family with their informal trading business. His absence has meant his elderly parents have been without assistance,” reads the affidavit.
The family also claimed to have suffered impaired mental health and said they need professional psychotherapy sessions.
As a result the family also seeks compensation for future medical treatment and loss of support (constitutional damages), and for the university to erect a memorial for Mlungisi, name one a building in his honour and a provide short biography and cause of his death as constitutional relief.
Believing some claims had no merit, the university sought to counterclaim their particulars of claims
Dismissing the vicarious liability claim, the university said Bhengu was neither an employee nor agent for DUT. It argued the alleged contract with Xcellent security did not provide a legal basis for the conclusion “related to agency”, as pleaded by the plaintiffs.
“The allegation that such a contractual relationship exists, alone, is insufficient to plead vicarious liability,” DUT argued.
On the “emotional shock, trauma and grief” claim, the university said a damages claim is only available when the claimant shows the nervous shock is associated with a “medically identifiable psychiatric illness or injury”, and none was provided because “impaired mental health” was not sufficient.
“The common law gives no damages for the emotional distress which any normal person experiences when someone he loves is killed or injured. The first hurdle which a plaintiff claiming damages of the kind in question must surmount is to establish he is suffering not merely grief, distress or any other normal emotion, but a positive psychiatric illness,” the university argued.
It also argued the pain and suffering claim should be dismissed because no proof had been presented, and that the law only recognised physical pain and suffering, which is not pleaded by the plaintiff.
The same should be done for the “future medical treatment” claim since the medical impairment was identified.
DUT argued the law did not recognise a claim for future loss of support if the deceased did not provide financial support, as the plaintiffs had conceded, and that the plaintiffs had not sought to develop the common law to make a provision for such claim.
The university said there were no allegations in any of the claims by the plaintiffs that the alleged damage was reasonably foreseeable by DUT and no facts were presented to establish fault on its part.
“Fault and wrongfulness are distinct legal requirements. The only allegations of foreseeability relate to that of events that unfolded, not foreseeability of damages allegedly suffered by the plaintiffs.”
The court ruled in favour of the university and gave the plaintiffs leave to amend their particulars of claim within 10 days. Should they fail to do so, DUT will be given leave to set the matter down without notice with the plaintiffs handling the costs.
Angelike Charalombous, the plaintiffs attorney, said they would be amend the particulars of their claim and the matter was far from over.
“We have 10 days from today to amend our particulars of claims, which we will do and hopefully the matter can proceed and they then plead.”
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