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A doctor who was shot in a botched hijacking by what he believes was an escaped prisoner with a stolen police gun has secured a Durban High Court order compelling the police to allow his own forensic expert to examine the bullet and casings found at the scene.
Jacinto John Kapp, who now works as a GP at a government hospital in the Eastern Cape, says the dangerous prisoner, who had been arrested on a charge of murder, escaped from police cells because of police negligence.
If he can prove, through a ballistic examination, that the bullet which lodged in his seat after shattering his elbow came from a cop gun, it will help prove a multimillion-rand damages claim against the minister of safety and security.
Kapp, now 33, was doing his community service at a hospital in Mthatha at the time of the shooting in April 2005. He was returning to work after visiting his parents in Kloof when he was shot by a man on the side of the road.
Although in great pain, he managed to drive away and was later assisted by the driver of a minibus taxi, who took him to hospital.
He underwent surgery to re-attach damaged nerves, but has been left with limited movement in three fingers on his left hand, effectively dashing his dream of becoming a paediatric surgeon.
The following year, he served a summons on the minister, alleging that the man who had fired the shot was Siphamandla Njiyela, a “dangerous criminal” who had been arrested for the murder of his wife and was being detained at the Gowanlea police station.
He says a day before he was shot, Njiyela and other prisoners overpowered police guard TS Lungongolo, stealing his gun before fleeing.
Kapp says Lungongolo was negligent because he had not followed police procedures in dealing with dangerous and violent criminals.
The State is opposing his claim, but admits Lungongolo had been working alone because his fellow guard had become ill “and had to |go away to sleep”. Lungongolo, the State says, responded “urgently” to a cry for help from one of the prisoners inside the cell and went in alone, with his firearm loaded.
However, the State denies negligence. It also initially denied any knowledge of the attempted murder and hijacking of Kapp, although it later admitted a docket had been opened against Njiyela because a witness had seen him in the area just before the shooting.
Kapp’s attorney, Ian King, says a statement from an off-duty policeman who knew Njiyela by sight, but did not want to approach him because he was unarmed, said he could see that Njiyela had a firearm. Njiyela was arrested a few days after Kapp was shot, still in possession of the firearm.
While he was now serving a sentence of life imprisonment for the murder of his wife, “there seems to be little effort to prosecute him for the Kapp incident”, King said.
Tests run on the cartridges and the bullet – which was damaged and smeared with blood – by State forensic experts were inconclusive, and Kapp therefore hired his own expert, Kobus Steyl.
King said the State had initially been co-operative, and Steyl got access to exhibits in April 2011.
After discussions with a Captain Van der Sandt from the ballistics unit, it appeared there was consensus that the bullet had come from a police-issue firearm, and that they would draft a “joint expert minute”.
But this did not materialise, and the State attorney then advised: “We have received instructions which are that we should not make any concessions at this stage.”
Arrangements were made for Steyl to examine the exhibits again, but it was stopped abruptly by an unnamed brigadier.
King also alleges he has information that after the escape Lungongolo was disciplined and fined, but the State denies this is true.
When Kapp’s application came before Durban High Court Judge Shyam Gyanda recently, Kapp’s advocate, Garth Harrison, said before the inspection was stopped Steyl had already found on the bullet three of the six matches required.
The judge ordered that Steyl be allowed to continue with his inspection. If he was barred, the unit commander of the forensic laboratory would have to come to court.