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[2015] ZAGPJHC 191
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Msimanga v Minister of Police (10932/13) [2015] ZAGPJHC 191 (15 September 2015)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
Policy
HIGH COURT OF SOUTH
AFRICA
(GAUTENG LOCAL
DIVISION, JOHANNESBURG
Case No. 10932/13
DATE: 15 SEPTEMBER 2015
In the matter between:
SIFISO
MSIMANGA
..................................................................................................................
Plaintiff
And
MINISTER OF
POLICE
.........................................................................................................
Defendant
Case Summary:
Unlawful arrest
and detention - defendant discharged the onus of proving that the
arrest and subsequent detention of the plaintiff
were lawful.
Assault – plaintiff discharged
onus of proving assault - given the nature and extent of the assault,
the injuries suffered
by the plaintiff and their physical and
emotional effects on him a globular award of R130 000, which includes
the sum claimed for
medical treatment, appropriate.
JUDGMENT
MEYER, J
[1] The plaintiff
was arrested without warrant in the vicinity of the Southgate
Shopping Centre, Johannesburg at about 10.00 am
on Wednesday, 19
December 2012. He was taken to the Mondeor SAPS where he was
detained until he was taken to the Johannesburg
Magistrates’
Court at 8.45 am on Friday, 21 December 2012. A charge of trespass
with intent to commit an offence with which
he had been charged while
he was detained was withdrawn against him and he was released at
about 4.00 pm that afternoon.
[2] The plaintiff
claims that his arrest and subsequent detention were unlawful and
that he was assaulted by two policemen at the
time of his arrest and
again upon his arrival at the Mondeor SAPS where he, so he claims,
was also tortured by another policeman.
Arising from his alleged
unlawful arrest and detention the plaintiff claims damages in the sum
of R300 000.00 from the defendant,
the Minister of Police as the
nominal defendant representing the state, and arising from the
alleged infringement of his bodily
integrity a further sum of R339
000.00.
[3] The defendant
denies that the arrest and detention were unlawful. The plaintiff,
so it is averred, was arrested and detained
in terms of s 40(1)(b) of
the Criminal Procedure Act 51 of 1977 (the CPA), which provides that
a peace officer may without warrant
arrest any person ‘whom he
reasonably suspects of having committed an offence referred to in
Schedule 1’ and, although
trespass is not an offence referred
to in Schedule 1, the plaintiff, so it is contended, was suspected of
having committed trespass
with intent to commit housebreaking.
Entering any premises with intent to commit an offence is an offence
referred to in Schedule
1. The alleged acts of assault and torture
by the police officers are denied and no defence of justification is
raised.
[4] The onus,
therefore, is on the defendant to prove that the arrest and detention
were lawful (Zealand v Minister of Justice and
Constituional
Development and Another
[2008] ZACC 3
;
2008 (4) SA 458
(CC) paras 24
and 25; Rudolph v Minister of Safety and Security
2009 (5) SA 94
(SCA) para 14). The onus to prove that the alleged assaults and
torture took place is on the plaintiff.
[5] The plaintiff
testified and he called the following witnesses: his aunt, Ms Lucy
Siyaphi; a medical general practitioner,
Dr Stan Tenzer; and a
psychiatrist, Dr Leon Fine. The defendant led the evidence of the
two arresting officers, Constables Zwane
and Moloi, who the plaintiff
alleges assaulted him at the time of his arrest and upon his arrival
at the Mondeor SAPS; Captain
Naidoo, who the plaintiff alleges
thereafter tortured him at the Mondeor SAPS; Warrant Officer Botha,
the investigating officer;
Warrant Officer Magasha, who was on night
shift duty as the charge office commanding officer and supervisor of
the cells at the
Mondeor SAPS on 19 December 2012; Captain Madaray,
who during the period of the plaintiff’s detention was a senior
officer
in charge of the cells at Mondeor SAPS; and Sergeant
Munjedzi, who transported the plaintiff from the Mondeor SAPS to the
Johannesburg
Magistrates’ Court on Friday, 21 December 2012.
[6] Constables Zwane
and Moloi were performing patrol duty during the morning on 19
December 2012 when they received a radio message
that there was ‘a
housebreaking in progress’ at No 1…… M…..
Street, A….. ( the premises).
Alan Manor is said to be a
quiet suburb with a high incidence of housebreaking. When they were
about a block away from the premises,
the two policemen noticed two
men that they testified appeared suspicious to them. Their suspicion
was exacerbated when the two
men started to run in different
directions. Constables Zwane and Moloi chased after one of them and
managed to catch him, a Mr
Tshepo Nzimande. They arrested him, put
him in the back of the police van in which they were travelling and
took him along to
the premises. There they found another police van
and the police officers whom they were called upon to back up.
[7] The domestic
worker at the premises, Ms Kebogile Mothibe, was interviewed upon
their arrival. She reported that she had noticed
a person walking
around the yard outside the house on the premises at about 08.30 that
morning. She screamed and the person then
ran away and jumped over
the perimeter wall. She identified Mr Nzimande as the person whom
she had seen. (Cst Moloi’s evidence
that Ms Mothibe identified
Mr Nzimande as one of two persons who were present on the premises
and who jumped over the wall is contradicted
by the evidence of Cst
Zwane, and more importantly the contents of an affidavit deposed to
by Ms Mothibe at the Mondeor SAPS later
on that morning to which I
return. I accordingly accept the evidence of Cst Zwane that Ms
Mothibe reported the presence of one
person on the premises and that
she identified that person as being Mr Nzimande.) The police
investigation at the premises did
not reveal any evidence of
housebreaking.
[8] Constables Zwane
and Moloi placed Mr Nzimande into the back of the police van in order
to take him to the Mondeor SAPS. En
route while they were travelling
on Columbine Avenue in the immediate vicinity of the Southgate
Shopping Centre, Mr Nzimande knocked
from the back of the police van.
(The plaintiff disputes this evidence of constables Zwane and
Moloi.) Cst Zwane, who was the
driver, then stopped. This was at a
place where vendors were selling merchandise next to the road and
where people were waiting
for taxis. When Cst Zwane opened the back
door of the police van Mr Nzimande pointed out a person standing next
to the road as
the person who had been with him on the premises.
That person is the plaintiff in these proceedings, Mr Sifiso
Msimanga. Cst
Zwane asked the plaintiff whether he knew the person
who was in the back of the police van and he responded that he did
not know
him. (The plaintiff testified that the person in the back
of the police van was also asked whether he knew the plaintiff and
his
response too was that he did not know him.) Constable Zwane then
took the plaintiff’s cell phone and dialed the last number
stored in its call list, which turned out to be Mr Nzimande’s
cell phone number. (The plaintiff disputes this evidence of
Constables Zwane and Moloi.) The plaintiff was asked where he
resides and it turned out that he too resided in Orlando. Constable
Zwane had already ascertained from Mr Nzimande that he (Mr Nzimande)
resided in Orlando. The plaintiff was arrested and put
into the
back of the police van whereafter they drove to the Mondeor SAPS.
[9] The plaintiff
and Mr Nzimande were taken to the ‘crime office’ at the
Mondeor SAPS. It is an office adjacent to
the community service
centre or charge office (the CSC) where arrested persons are booked
in, dockets are opened, statements are
taken from arrested persons
and of other members of the public and where police officers also
make their own statements. The process
of booking in an arrested
person for purposes of detention inter alia entails warning them of
their constitutional rights and completing
the various registers,
such as the SAPS 14 register (a register of all arrested persons),
the SAPS 14A register (a register of
the written notices of rights in
terms of the Constitution issued to detainees), the SAPS 13 register
(a register of exhibits that
are handed in) and the SAPS 22 register
(a register of personal items belonging to an arrested person that
are handed in for safe
keeping). The final step is the making of an
entry in the occurrence book to the effect that an arrested person
has been detained.
[10] The process of
booking in the plaintiff for detention commenced at about 10.34 am on
19 December 2012 in the Mondeor SAPS crime
office. That is the time
that was recorded in the SAPS 14A register as the time when the
plaintiff as detainee was informed of
his Constitutional rights. The
plaintiff’s cell phone was booked into the SAPS 13 register and
a receipt thereof was given
to him. A witness statement was taken
from Ms Mothibi and it was sworn to before Cst Zwane at 10.57 am. It
appears from the plaintiff’s
evidence that her employer’s
son was also present with her in the crime office. Arrest statements
were completed by Constables
Zwane and Moloi. A case docket of
‘trespassing with an intention to commit a crime’ was
opened. At 11.35 am Cst
Moloi made an entry in the occurrence book
that the plaintiff and Mr Nzimande were detained by Cst Zwane ‘for
trespassing
on Mondeor cas 444/12/2012’. They were then taken
to the cells.
[11] The docket was
allocated to Warrant Officer Botha as the investigating officer on
the case. She was assisted by Warrant Officer
Thomas. WO Botha
testified that there had indeed been a burglary on the same premises
a week earlier than the incident that gave
rise to the arrests and
detention of Mr Nzimande and of the plaintiff (the housebreaking
case). WO Botha read the docket that
essentially contained the
witness statement of Ms Mothibi and the arrest statements of
Constables Zwane and Moloi.
[12] Ms Mothibi
stated the following in her witness statement:
‘On Wednesday
2012-12-19 at around 08:30 I was busy with my daily work at No 1…..
M…….. Street, A…….
I then saw a black
male jumping on the gate towards the outside of the yard. While
jumping he then fall down. He stood up and
run away to the street.
The male guy is
unknown to me and I then call my employer to tell him what I saw.
The suspect was wearing a black trouser, red
t-shirt and a black
jacket. The police were called. On the arrival of the police they
came with the black male guy I saw jumping
the gate, getting away. I
then pointed him to the police as the one who was jumping.’
[13] In his arrest
statement Cst Zwane stated the following concerning the arrest of the
plaintiff:
‘. . . on our
way to the station Tshepo [Mr Nzimande] started to hit the van at the
back. We then stopped the car, he then
pointed out another black
male wearing a striped golf shirt, blue jeans and black shoes as
another suspect who was with him at
number 1…… M…..
Street, Alan M…..
We then also went to
him and arrested him also for trespassing. The second suspect was
later known to me as Sifiso Msimango of
number 1……
M…….. street O…….. We also arrested him.
We took them both to Mondeor for
further detention. The suspects
were detained without any injuries.
The suspects were
arrested due to evidence that they were pointed out, they ran away
before we even talked to them and the modus
operandi of house
breaking is that suspect jumped the walls then they check around if
there is someone inside then they break into
people’s house.
And the area they were at is known for high crime of house-breaking
and house robberies.’
[14] Cst Moloi’s
full statement was not included in the bundle of documents that were
handed in as exhibits at the trial.
He stated the following about
the arrest of the plaintiff:
‘The suspect
was later known to me as Tshepo Nzimande. We then took him at the
back of the van for detention. As we were
driving Columbine Avenue,
Mondeor, heading to the station, then the suspect hit at the back of
the van and stopped us. We then
stopped to find out what’s
happening. He then pointed ….
It is clear from the
evidence given by Cst Moloi that what he too wrote in his statement
was that the plaintiff was arrested because
Mr Nzimande pointed him
out as someone who had been with him on the premises.
[15] It is recorded
in the occurrence book that WO Thomas booked the plaintiff and Mr
Nzimande out ‘for further investigation’
at 11.50 am on
Wednesday, 19 December 2012. WO Botha took their finger prints in
order to ascertain whether they could be linked
to the housebreaking
case or to any other housebreaking. Housebreakings, also according
to WO Botha, are prevalent in that area.
They went to the address in
Orlando that had been furnished by Mr Nzimande in order to confirm
his residential address. The complainant
in the housebreaking case
(the complainant) also arrived at Mr Nzimande’s place of
residence. There they discovered items
that the complainant claimed
belonged to her. WO Botha testified that as a result of that
discovery they arrested a lady who was
present at Mr Nzimande’s
place of residence in connection with the housebreaking case. The
plaintiff’s evidence on
this aspect differs from that of WO
Botha. He testified that upon the discovery of items at Mr
Nzimande’s place of residence,
WO Thomas hit Mr Nzimande with
his fist in the stomach and demanded that he take them to the
residence of the other man they were
looking for. Mr Nzimande
complied and directed the police officers to a house where they found
the ‘girlfriend of that man
they were looking for.’ The
complainant claimed that the ear-rings and bracelet that that woman
was wearing belonged to
her (the complainant). The police officers
also searched the woman’s room and they inter alia found the
identity document
of the man who had run away. The woman, Ms
Sandiswa Dlamini, was then arrested.
[16] The plaintiff
also took Warrant Officers Botha and Thomas to the house where he had
said he resided. There the plaintiff’s
aunt, Ms Lucy Siyaphi,
confirmed to WO Botha that the plaintiff resides there with her, but,
according to WO Botha, she also mentioned
that the plaintiff
sometimes absent himself for periods of time. (Ms Siyaphi denied
that she discussed anything with the police
officers.) The
plaintiff’s room was searched and, according to WO Botha, the
only personal item found (to confirm that he
indeed resided there)
was a pair of jeans that the plaintiff’s aunt said belonged to
him. The plaintiff testified that the
police officers also found
other items of clothing that belonged to him as well as his identity
document. He testified that WO
Thomas handed to him one of his
t-shirts found there and instructed him to put it on over the golf
shirt that he was wearing in
order to conceal the blood on that
shirt. (WO Botha denied this evidence of the plaintiff.) They then
returned to the Mondeor
SAPS.
[17] WO Botha
testified that it takes about 24 hours to obtain finger print results
from the Local Criminal Record Centre at the
Johannesburg Central
SAPS where the finger prints that she had taken from the plaintiff
and Mr Nzimande were analysed. She could
not recall when she
received the results, but testified that it was probably on Thursday,
20 December 2012. The results did not
link the plaintiff to the
housebreaking case nor to any other housebreaking case. According to
an entry made by WO Botha in the
occurrence book, she charged the
plaintiff and Mr Nzimande with the offence of ‘trespassing with
the intention to commit
a crime’ at 17.58 on Thursday, 20
December 2012. A bundle of photographs (exhibit ‘B’) was
admitted into evidence
by consent between the parties and they agreed
that the bundle comprises photographs that were taken of the
plaintiff while he
was in detention at the Mondeor SAPS on 20
December 2012 shortly after 17.58.
[18] It is recorded
in the occurrence book that Sgt Munjedzi took the plaintiff, Mr
Nzimande, Ms Dlamini and other detainees to
the Johannesburg
Magistrates’ Court at 8.45 am on Friday, 21 December 2012. The
charge against the plaintiff was withdrawn.
He was released sometime
during that afternoon.
[19] I now turn to
the lawfulness or otherwise of the arrest and subsequent detention.
It is averred in the defendant’s plea
that the plaintiff was
arrested in terms of s 40(1) of the CPA on a charge of trespassing.
That offence in itself is not an offence
referred to in Schedule 1.
The plaintiff contends that the defendant is therefore precluded from
relying on the protection afforded
by s 40(1)(b). But the question
about the suspicion of the commission of which offence the plaintiff
was arrested has been fully
canvassed in the evidence. It has been
established that he was arrested because the arresting officers
suspected that he had committed
the offence of trespass with intent
to commit the offence of housebreaking. I have referred to the
arrest statement of Cst Zwane
in which he stated that the suspects
were arrested inter alia because Alan Manor has a high incidence of
housebreaking and the
modus operandi of those committing that offence
is that they jump over perimeter walls, check around the premises to
see if there
is someone present and then break into the house. Cst
Zwane testified that the information obtained from Ms Mothibi prior
to the
arrest of the plaintiff was that she saw someone walking
outside the house in the yard and when she screamed he ran away and
jumped
over the perimeter wall. She identified that person as Mr
Nzimande. This evidence has not been refuted. The case docket that
was opened was for ‘trespassing with an intention to commit a
crime’ and the plaintiff and Mr Nzimande were indeed
subsequently charged with the commission of that offence. There is
accordingly no merit in the plaintiff’s belated objection
to
the defendant’s plea.
[20] The plaintiff
further contends that it has not been proved that at the time of the
arrest the arresting officers had a reasonable
belief (a suspicion
that rests on reasonable grounds) that the plaintiff had committed
the offence of trespass with intent to commit
the offence of
housebreaking. (See Duncan v Minister of law and Order
1986 (2) SA
805
(A) at 818G-H; Mabona and Another v Minister of Law and Order
and Others
1988 (2) SA 654
(SE) at 658E-G.)
[21] The plaintiff
disputes the evidence of Constables Zwane and Moloi that Cst Zwane
stopped the police van because Mr Nzimande
had knocked or ‘banged’
from the back and that Mr Nzimande then pointed the plaintiff out as
the person who had been
with him on the premises. In this regard the
plaintiff testified that it was not possible for Mr Nzimande to have
seen the plaintiff
from inside the back of the police van, because
canvass covered the back side windows and they were not rolled up,
nor was it possible
for Mr Nzimande to knock from the back, because
he was handcuffed. The plaintiff testified that Mr Nzimande was
unknown to him
and he told the policemen tso. Mr Nzimande was also
asked whether he knew him (the plaintiff) and his response too was
that he
did not know him. The plaintiff testified that his cell
phone rang when he was pulled towards the police van and the
policemen
then grabbed it from him. His cell phone rang for a second
time after he had been thrown into the police van, but Cst Zwane, who
took possession of it, ignored the ringing and the policemen closed
the back door of the police van.
[22] I find the
evidence of Constables Zwane and Moloi that Mr Nzimande was not
handcuffed in all the circumstances to be improbable.
The
circumstances were: Alan Manor has a high incidence of
housebreaking; Constables Zwane and Moloi were called upon to render
back-up in respect of ‘a housebreaking in progress’;
they suspected that Mr Nzimande had been involved in the commission
of that serious offence; they had to chase after him in order to
arrest him; and they took him to the premises where he was taken
out
of the police van. But in my view the evidence does not establish
that a person in the position of Mr Nzimande, because he
was
handcuffed, would be unable to attract the attention of the policemen
sitting in the front of the police van.
[23] The
probabilities favour the accounts of constables Zwane and Moloi that
Mr Nzimande pointed out the plaintiff, who was standing
next to the
road on which they were travelling at the time, as the person who had
been with him on the premises. I find it improbable
that Constables
Zwane and Moloi would simply by themselves have picked the plaintiff
amongst vendors and people waiting for taxis.
The plaintiff’s
appearance and clothing, it is undisputed, were very different from
that of the man who ran away when Mr
Nzimande was arrested.
Furthermore, their evidence that the last number stored in the call
list of the plaintiff’s cell
phone was that of Mr Nzimande’s
cell phone, is supported by the fact that the cell phones of both the
plaintiff and of Mr
Nzimande were retained and booked into the SAPS
13 register, which is the register of exhibits seized by the police
and not into
the SAPS 22 register, which is the register of personal
items belonging to an arrested person that are handed in for safe
keeping
while the person is being detained.
[24] I am of the
view, therefore, that it has been proved that Constables Zwane and
Moloi suspected the plaintiff of having committed
the offence of
trespass with intent to commit housebreaking on the following
grounds: (a) the high incidence of housebreaking
in Alan Manor; (b)
the modus operandi of inspecting the premises and breaking in if
there is no-one present in the experience
of Constables Zwane and
Moloi generally followed by those who commit housebreakings in Alan
Manor; (c) the person who was seen
by Ms Mothibe followed the same
modus operandi; (d) Ms Mothibe identified Mr Nzimande as the person
whom she had seen on the premises;
(e) Mr Nzimande in turn
identified the plaintiff as the person who had been with him on the
premises; (f) both Mr Nzimande and
the plaintiff reside in Orlando;
(g) and the plaintiff’s denial to Constables Zwane and Moloi
that he and Mr Nzimande knew
each other that was prima facie refuted
when Cst Zwane dialed the last number stored in the call list of the
plaintiff’s
cell phone, which turned out to be Mr Nzimande’s
cell phone number. These grounds upon which their suspicion rested
were
in my view reasonable and it has been proved that constables
Zwane and Moloi had a reasonable belief at the time of the
plaintiff’s
arrest that he had committed the offence of
trespass with intent to commit the offence of housebreaking.
[25] The defendant
accordingly discharged the onus of proving on a balance of
probabilities that the arrest and subsequent detention
of the
plaintiff were lawful. He was brought to the Mondeor SAPS
immediately after his arrest and he was brought before a lower
court
not later than 48 hours after his arrest as required in terms of s 50
of the CPA. It has been held that the arrest or subsequent
detention
of a suspect is not rendered unlawful if the arrest is made in terms
of s 40(1)(a) rather than using alternative measures
to obtain the
attendance of the suspect at court (National Commissioner of Police &
another v Coetzee
2013 (1) SACR 358
(SCA) para 13.) The same holds
true, in principle and in logic, where the arrest is made in terms of
s 40(1)(b) of the CPA.
[26] This brings me
to the plaintiff’s claim arising from the alleged infringement
of his bodily integrity. The plaintiff
testified that Constables
Zwane and Moloi pulled him roughly towards the police van from where
he was standing next to Columbine
Road. He resisted when they tried
to force him into the back of the police van. Cst Zwane slapped him
several times on his left
ear and Cst Moloi, who was standing to his
right, also slapped him a few times on the right side of his head.
His arms were twisted
to his back and he was handcuffed. The
handcuffs were tight and painful. He was thrown into the back of the
police van by Cst
Zwane which caused him to bump against the spare
wheel that was lying in the back. The journey to the police station
was characterized
by such driving causing the plaintiff and Mr
Nzimande to be thrown around. When they arrived in the crime office
the plaintiff
was made to kneel. Cst Zwane slapped him several times
again on the left ear when he refused to provide his name. He kicked
him
in the back which caused the plaintiff to fall forward onto his
stomach. Cst Moloi also slapped him a few times on his right ear.
[27] Cpt Naidoo
arrived in the crime office. He asked Constables Zwane and Moloi
‘are these the ones’ to which they
replied ‘yes’.
Cpt Naidoo then grabbed the plaintiff and made him kneel. He
dismantled a broom and hit the plaintiff
with the broomstick with
force continuously against his left ear until the broomstick broke.
His left ear was bleeding and the
blood dripped onto his golf shirt.
The plaintiff fell. Cpt Naidoo turned him around so that he was
lying on his chest on the
floor. Cpt Naidoo ‘rode’ on
his back by placing his one knee on the plaintiff’s back and
balancing himself with
his other knee on the floor. Cpt Naidoo
smothered him with a rubber glove that was held over his nose and
mouth and pulled back.
He questioned him about ‘the stolen
goods’. The plaintiff tried to explain to him that he did not
know anything.
Cpt Naidoo smothered him with a rubber glove for a
second time and when he took it off swore at him he saying to him
that he was
going to point out the articles. Cpt Naidoo smothered
him for a third time. During the torture the plaintiff’s neck
was
scratched by Cpt Naidoo’s nails.
[28] The plaintiff
testified that he had suffered the following injuries by the time he
was placed in a cell: his left cheek was
swollen; his lower lip was
injured; there was dry blood on his left ear lobe; he had scratch
marks on his left elbow and hip
and his left hip was swollen as a
result of carpet friction during the struggle on the carpet; he had
an injury on his back where
he had been kicked; and his wrists were
injured as a result of the handcuffs. Ms Lucy Siyaphi testified that
the left side of
the plaintiff’s face was swollen at the time
when he and the police officers had attended at her house.
[29] Constables
Zwane and Moloi deny that they assaulted the plaintiff or that they
witnessed any assault upon him, either when
he was arrested or in the
crime office. They also denied that Cst Zwane drove the police van
to the Mondeor SAPS in a manner that
would have caused the plaintiff
and Mr Nzimande to be thrown around in the back. After the plaintiff
had been booked in at 11.35
am on Wednesday, 19 December 2012, they
had no further dealings with him. Cpt Naidoo denied the allegations
against him and he
testified that he bears no knowledge of the
plaintiff’s arrest and detention.
[30] The
investigating officer, WO Botha, testified that she did not notice
any swelling or injuries on the plaintiff on the two
occasions that
he was booked out nor did he complain of any assault upon him by any
police officer. She did not notice any blood
on his shirt and she
denied that her colleague, WO Thomas, handed the plaintiff a t-shirt
to wear over his golf shirt in order
to conceal blood on the shirt.
She testified that she would not book out a suspect who is full of
blood or injured.
[31] Warrant Officer
Magasha, who was on night duty as the charge office commanding
officer and supervisor of the cells at the Mondeor
SAPS on 19
December 2012, testified that an arrested person who has been injured
would not be accepted into the cells. An ambulance
would be summoned
and the injured person would be examined by the paramedics and be
taken to hospital if they so recommend. He
testified that he
received no complaint of injury from any detainee during the course
of his duty that night nor did he observe
any injury on any detainee.
[32] Cpt Madaray,
who during the period of the plaintiff’s detention was a senior
officer in charge of the cells at Mondeor
SAPS, testified that upon
her arrival at work she goes to each cell and she asks the detainees
whether they have any complaints
or injuries. Any complaint is then
addressed by her personally. She testified that if a detainee wants
to open a case of assault
she assists the detainee in opening one. A
detainee who is injured will be taken for medical treatment. She did
not receive any
complaint from the plaintiff during the time of his
detention.
[33] Sergeant
Munjedzi, who transported the plaintiff from the Mondeor SAPS to the
Johannesburg Magistrates’ Court on Friday,
21 December 2012,
testified that he did not observe any injuries on the plaintiff nor
did the plaintiff raise any complaint with
him. He testified that it
is impermissible to transport injured detainees to court. It is
undisputed that Sgt Munjedzi and the
plaintiff’s aunt were
known to each other.
[34] The plaintiff
consulted Dr Stan Tenzer, a general practitioner, on 18 January 2013
for the purposes of lodging the claim and
not for medical treatment.
Dr Tenzer’s examination of the plaintiff revealed that he
presented with multiple contusions,
lacerations and injuries to both
ears. According to Dr Tenzer the plaintiff presented with a deep
laceration of the lower lip;
an abrasion of the left fore-arm;
abrasions of both wrists which, in Dr Tenzer’s opinion, are
consistent with the tight
application of handcuffs and significant
pressure brought to bear on them; an abrasion of the left elbow;
and an abrasion and
scar of the left hip and pelvis. Dr Tenzer
testified that the photographs that were taken of the plaintiff at
the Mondeor SAPS
shortly after 17.58 pm on 20 December 2012 (exhibit
‘B’) show that the plaintiff’s left cheek was red,
inflamed
and swollen; fresh dried blood on the lobe of the left ear
that is consistent with the injury to that ear which Dr Tenzer
observed
when he examined him; redness of the pinar of the right
ear; redness below the right eye maxilla; redness of the medial
aspect
of the lower lip; and an abrasion, swelling and redness on
the lower left forearm. Dr Tenzer is of the opinion that the
injuries
noted by him during his examination of the plaintiff on 18
January 2013 correlate well with those visible on the photographs
taken
of the plaintiff the day after his arrest. The plaintiff’s
injuries, in the opinion of Dr Tenzer, are consistent with his
account of the assaults upon him, except for his account of having
been hit on the left ear with a broomstick.
[35] The plaintiff’s
ears were examined digitally and photographed with a ‘Digital
Welch Allyn Otoscope’. That
examination, according to Dr
Tenzer, revealed that the left tympanic membrane was red and inflamed
and the external auditory meatus
tender. The right tympanic membrane
was also inflamed, but was affected less than the left one. An
audiogram was also performed
on 21 January 2012, which, according to
Dr Tenzer, revealed bilateral impairment in the higher frequencies of
both ears, left more
than right.
[36] Dr Leon Fine, a
psychiatrist, interviewed the plaintiff on 1 October 2013. Based on
the plaintiff’s account of his history
(including that he had
never been arrested before the incident in question, which is
blatantly false), his arrest and detention
and the physical and
emotional effects thereof on him, Dr Fine diagnosed the plaintiff as
presenting ‘with features of a
Post-Traumatic Stress Disorder
with Depression due to the trauma of the Actual Incident and also
it’s Sequelae.’ Dr
Fine explains that post-traumatic
stress disorder is an anxiety disorder that may occur when a person
was traumatised by an incident.
The fact that the plaintiff lied to
him in saying that he had never been arrested before (it being common
cause that he indeed
had been arrested on more than one previous
occasion), according to Dr Fine, does not affect his diagnosis of the
plaintiff.
The injustice and unfairness (as perceived by the
plaintiff) of having been wrongly arrested and assaulted on the
occasion in
question, in the opinion of Dr Fine, was particularly
traumatic for him. (In his medico-legal report Dr Tenzer also
expressed
the opinion that the plaintiff presented with
post-traumatic stress syndrome when he examined him on 18 January
2013. His reasons
for this diagnosis are not stated nor were they
canvassed when he testified. His opinion on this aspect, therefore,
does not assist.)
[37] Despite the
contradictions between the evidence of the plaintiff and that of his
aunt, Ms Siaphi, their uncontroverted evidence
supports the opinion
of Dr Fine that the plaintiff has been suffering from a psychological
condition since the incident under consideration.
The plaintiff
testified that he was suffering from fearfulness and anxiety since
the incident and he does not sleep properly.
It appears from the
evidence of the plaintiff and of Ms Siaphi that he undertook much
less piece jobs than before and finds excuses
for not going out to
work. He contributed much less financially to the household and to
his girlfriend and children. He isolates
himself and prefers to stay
at home and sleep. The relationship between him and his girlfriend
deteriorated to an extent that
she eventually left him and took their
children along. Ms Siaphi testified that the reason proffered by the
plaintiff’s
girlfriend for leaving the plaintiff was that she
could not ‘. . . carry on with a person that was sick.’
Ms Siaphi
finally required him to leave her house during March this
year and to go and stay with his uncle. In this regard she
testified:
‘I told him I
can no longer stay with him because of his mental state. He was
always in fear and I decided since I am young
he should go and stay
with older people.’
[39] Dr Fine is of
the opinion that the plaintiff requires present and future
psychiatric treatment consisting of the use of medication
and of
psychotherapy of the specific trauma counseling type, extending over
two years. He further is of the opinion that the sums
of R10 000 per
year for medication and R12 000 per year for psychotherapy would be
sufficient for the two years and that an additional
sum of R15 000 is
required for treatment of future relapse, the chance of which in the
case of the plaintiff in his view is high.
Dr Fine is of the opinion
that given such optimal treatment the plaintiff’s prognosis can
be anticipated to be good.
[40] I accept the
evidence of Cpt Naidoo rather than that of the plaintiff relating to
the alleged torture of the plaintiff at his
hands. Cpt Naidoo was an
impressive witness and neither his credibility as a witness nor the
reliability of his evidence was in
any way affected when he was
cross-examined. This was conceded by the plaintiff’s counsel
in argument. In my view, the
concession was correct. The evidence
of the plaintiff, on the other hand, has various difficulties. But,
more importantly, the
probabilities favour the account of Cpt Naidoo
that he did not torture the plaintiff and that he was not in any way
involved with
the plaintiff’s arrest and detention.
[41] Cpt Naidoo was
the Group Commander of the Serious and Violent Crime Unit at the time
of the plaintiff’s arrest and detention.
Cases of trespass and
housebreaking did not fall under his unit. The group under his
command dealt with more serious and violent
crimes, such as
residential and business robberies, truck and car hijackings, ATM
bombings, murders and sensational cases that
drew media attention.
Cpt Naidoo, by virtue of his position, mostly did not investigate
case dockets; he supervised and gave guidance
to the detectives who
formed part of the unit that he commanded. The only case dockets
that he investigated were those allocated
to him by the station
commander and they mostly involved police corruption. I accordingly
find it improbable that Cpt Naidoo would
in any way have involved
himself in the criminal matter against the plaintiff.
[42] I also find it
improbable that an officer of Cpt Naidoo’s stature would have
involved himself in the criminal conduct
which the plaintiff wishes
to lay at his door, openly and for all to see in a place that is not
only frequented by police officers,
but also open to members of the
public. Indeed, it is the evidence of the plaintiff that Ms Mothibe
and her employer’s son
walked into the crime office after Cpt
Naidoo had smothered him for the third time. Moreover, the injury to
the plaintiff’s
left ear is in the opinion of Dr Tenzer not
consistent with having been assaulted repeatedly with a broomstick
against the ear.
Neither the photographs that were taken of the
plaintiff on 20 December 2015 nor Dr Tenzer’s examination of
him on 18 January
2013 reveal any scratching of the plaintiff’s
neck, which injury he alleges he sustained while being tortured by
Cpt Naidoo.
The plaintiff is clearly untruthful in the embellishment
of his account.
[43] But the
defendant has not refuted the prima facie case put up by the
plaintiff that he had indeed been assaulted, whether at
the time of
his arrest or soon thereafter. The expert opinion of Dr Tenzer
stands unchallenged. I accept that most of the injuries
depicted on
the photographs that were taken of the plaintiff on 20 December 2012
(exhibit ‘B’) are not necessarily
obvious and visible to
the lay person or untrained eye. But at least the injuries to the
plaintiff’s left ear and cheek
are clearly visible. These
injuries, according to Dr Tenzer, are consistent with the plaintiff’s
version that he had been
slapped on the left ear. It is not the
defendant’s case that these injuries preceded the time of the
plaintiff’s arrest
or that force was necessary to effect the
arrest.
[44] Furthermore, it
is undisputed that the plaintiff wore a striped golf shirt at the
time of his arrest on 19 December 2012.
This is what Cst Zwane wrote
in his arrest statement. But the photographs depict that the
plaintiff was indeed wearing a t-shirt
over the golf shirt. Nobody
suggests that the plaintiff carried the t-shirt with him at the time
of his arrest. On the contrary,
Cst Zwane testified that he carried
nothing with him. It is also not suggested that anyone brought the
t-shirt to him while he
was detained. Even though the plaintiff’s
evidence that blood dripped onto his golf shirt while he was tortured
at the hands
of Cpt Naidoo is rejected, his evidence that because his
golf shirt had been blood stained he was given the t-shirt and told
to
wear it over the golf shirt is to the greater extent objectively
supported by the common cause photographic evidence, and accepted.
[45] As a result of
being assaulted (and allegedly tortured) the plaintiff claims damages
in the sum of R339 000, which is made
up as follows: (a) R200 000
for pain and suffering, shock and psychological harm; (b) R80 000
for contumelia; and (c) R59 000
for medical expenses. The question
is what damages should be awarded for infringement of his bodily
integrity. Counsel referred
me to previous awards, but the facts of
each case must be evaluated on its own merits, because few cases are
directly comparable.
(See Minister of Safety and Security v Seymour
2006 (6) SA 320
(SCA) para 20.) Given the nature and extent of the
assault, the injuries suffered by the plaintiff and their physical
and emotional
effects on him it seems to me that a globular award of
R130 000, which amount includes the sum of R59 000 claimed in respect
of
medical treatment, is appropriate. In the light of the measure of
damages costs should be limited to the magistrates’ court
scale. But such costs must in my view be on a punitive scale to mark
this court’s disapproval of any form of unlawful infringement
of a person’s bodily integrity.
[46] In the result
the following order is made:
Judgment is granted
in favour of the plaintiff for:
(a) Payment of the
sum of R130 000.00;
(b) Interest on the
said sum at the rate of 15.5% per annum from 25 January 2013 to date
of payment;
(c) Costs of suit on
the magistrates’ court attorney and client scale, including the
preparation, reservation and qualifying
fees of the plaintiff’s
expert witnesses, Dr Stan Tenzer and of Dr Leon Fine, the
interpreters’ fees, and the costs
of counsel and including his
preparation.
P.A. MEYER
JUDGE OF THE HIGH
COURT
DATE OF HEARING: 4 –
12 June 1015
DATE OF JUDGMENT: 15
September 2015
FOR PLAINTIFF: Adv
HC Johnstone
INSTRUCTED BY: Wits
Law Clinic, Braamfontein
FOR DEFENDANT: Adv Z
Buthelezi
INSTRUCTED BY: The
State Attorney, Johannesburg