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[2010] ZAWCHC 550
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Kruger v Minister of Safety and Security and Another (A 259/09) [2010] ZAWCHC 550 (12 November 2010)
Republic
of South Africa
IN THE HIGH COURT OF SOUTH
AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
CASE No: A
259/09
In
the matter between:
H KRUGER
…....................................................................................................................................
APPELLANT
And
THE MINISTER
OF SAFETY & SECURITY
…......................................
FIRST
RESPONDENT
GARTH DEAN MULHOLLAND
….............................................................................
SECOND
RESPONDENT
JUDGMENT
DELIVERED ON : FRIDAY 12 NOVEMBER 2010
HENNEY, AJ:
Introduction
[1] The
Appellant, a photo journalist with the Independent Newspapers,
instituted an action for damages in the amount of R25 000
against the
First and Second Respondents in the Magistrate's Court, Wynberg. The
Second Respondent is a police reservist who at
all times acted in the
course and scope of his duties for the First Respondent.
[2]
The Appellant alleges that this claim arose out of an assault
committed by the Second Respondent on 8 November near Hout Bay.
According to the pleadings, the Second Respondent assaulted him
repeatedly by kicking him in his stomach. The Second Respondent
further prevented him from taking photographs at the scene where
there was a public protest. Finally, he also prevented him from
performing his duties, by dispossessing him of his camera.
[3] The
Second Respondent denied that he acted unlawfully. He further admits
being involved in an altercation with the Appellant.
He further
stated that he had pushed the Appellant and when the Appellant
hindered him in the execution of his duties of attempting
to assist a
person, he resisted an attempt by the Appellant to free a suspect by
positioning his one foot in the Appellant's midriff
and pushing him
away.
[4]
After evidence was lead in the court a quo, the Magistrate dismissed
the Appellant's claim with costs. The Appellant now appeals
against
that decision. The main attack against the judgment of the court a
quo is based on the overall findings of the court on
the merits of
the case of the Appellant.
[5] Counsel
for the Appellant contends that the court a quo should have found
that the Respondents had failed to discharge the onus
placed on them.
Moreover, that the court a quo was wrong in preferring the version of
the Respondents above the version of the
Appellant.
Facts
which are common cause
[6]
The following facts seem common cause or not in dispute:
a)
the Appellant and one, Candice Bailey ("Bailey") were
present at a protest scene on
8
November 2006 in Hout Bay;
b)
the Second Respondent and other members of the South African
Police
force were in attendance and were busy with official police duties;
c)
the Applicant and Bailey arrived on the scene as members of
the media
to report on the protest and take photographs of the scene;
d)
the Second Respondent at some stage, on the instructions of
his
commanding officer, was in the process of apprehending one of the
protestors, MrPlaaitjies, also known as Rasta;
e)
whilst this was taking place, the Appellant took photographs
of the
scene;
f)
the Second Respondent requested the Appellant not to take
any
photographs and to leave the scene;
g)
they were involved in an altercation.
Evidence for the
Appellant
[7] Briefly
stated, the evidence of the Appellant and his witness, Bailey, was as
follows:-(I) The Appellant
(a)
The Appellant accompanied Bailey to Hout Bay. On the day in question,
they arrived at Imizamo Yethu Township, where members of the public
were busy protesting. The police was already on the scene. He
started
to take photographs. The police were charging the protestors and he
ran after them in order to take photographs.
(b)
He observed what was happening and saw the police manhandling the
people.
The police was busy with one specific person they
apprehended. He was about two to three metres away from them. At that
stage,
the Respondent told him that he was not allowed to take
photo's. He kept on taking photo's. He was again told not to take
photo's.
The Respondent kicked him. After he took another photo, he
was again kicked on his chest.
(c)
He cannot remember what the other police members were doing when
this
happened to him. He realised that the Respondent did not want him to
take photo's as it may be sensitive to him and his colleagues.
He
turned around started to move away from the scene and took the memory
card from his camera. Thereafter, they took his camera.
(d)
He can't exactly say where Bailey was at that stage. The next day
someone from his office went to Hout Bay Police Station to get back
his camera. He further testified that the police tried to keep
the
atmosphere calm, they were non-aggressive whilst the crowd was
disorderly. The police officers ran after or tried to apprehend
the
leader of the crowd, but during this time they were also aware of his
presence. He denies that he tried to come to the assistance
of a
person that the police had apprehended.
(e)
After the first kick, he felt no pain. He also states that he was
kicked twice and not repeatedly as it appears in the Particulars of
Claim when it was shown to him. He cannot exactly say where
on his
body he was kicked but he knows he was kicked in his stomach area. He
felt pain in his chest, stomach and upper body. He
also never went to
see a doctor. He was never detained. At the time when this happened,
the Appellant explains that he was shocked
and he could not believe
that the Second Respondent would resort to such action.
(II)
Candice Bailey
Her evidence
in many respects is similar to that of the Appellant, except where
she says that the Appellant was in front of her.
She only remembers
seeing the Second Respondent kicking the Appellant once. At that
stage, she was right next to the Appellant.
The
Appellant may have been kicked for a second time, she cannot after
three years, remember all the details. She is adamant that
she is not
saying that she does not have any knowledge, she cannot remember
whether he was kicked for a second time. She denies
that the
Appellant attempted to be of assistance to the person the police
attempted to arrest.
[8]
Evidence for the Respondents
(I)
The Second Respondent
The
Second Respondent, Mr Garth Dean Mulholland, was the first witness
for the Respondents. A brief summary of his evidence is as
follows:
(a)
That on 8 November 2002, he was on duty as a reservist for the South
African
Police Services at Imizamo Yethu, Hout Bay. He was part of a
group of policemen who was on duty to monitor and control the crowd
involved in a protest action. A person known as "Rasta" was
inciting the crowd and he was instructed by his superior
officer to
reprimand him. He did this by grabbing hold of him, as he put it, in
a "bear hug". Whilst holding him, the
Appellant who had no
press card was told to leave the scene because it was an illegal
gathering.
(b)
The Appellant came towards him. He pushed the Appellant away with his
foot because he felt that he was getting too close to him and was in
his personal space. He denies kicking the Appellant and says
that the
Appellant's presence had incited the crowd.
(c)
He testified that he had to let the person by the name of "Rasta"
go at the time the Appellant approached him. In cross-examination, he
later explained that what he meant by "reprimanded",
was to
grab hold of this person with the name of "Rasta". He says
that when saying the Appellant was inciting the crowd
he did not mean
he was leading the crowd,
(d) He also denies that he
deliberately kicked the Appellant. The Appellant was not arrested,
there was no attempt to arrest him
and he was not charged with any
criminal offence. He further states in his evidence that he felt
threatened by the Appellant who
had a camera and stood a metre away
from him. He accordingly decided to push him away.
(II)
Christian Worral
(a)
Christian Worral, a colleague of
the Second Respondent, was on duty with him on the day in question.
His evidence in chief corresponds
with that of the Second Respondent.
He further states that at the scene the Second Respondent held onto
Mr Plaaitjies alias "Rasta".
The Appellant was not taking
any photo's. He was too
close to focus his camera.
(b)
The Appellant was in the close
personal space of the Second Respondent. He
heard the Second
Respondent saying to the Appellant to move out of the way.
The
Appellant did not do anything in particular to interfere with
the Second Respondent.
Worral further testified that while the
Second Respondent had "Rasta" in a grip,
other members
of the police were trying to move his hand away.
(c)
The camera was taken away from
the Appellant because he would not identify himself and the reason
for this was, so that he could
come to the police station to identify
himself. The Appellant ran away from the scene and it was not a
priority to run after him
or apprehend him.
Evaluation
[9]
The Appellant's main grounds of appeal are that the Magistrate erred
in his finding of facts against the Appellant, and more
particularly:
(i)
the Magistrate erred in finding
that the Appellant interfered with members of the
South African
Police Services ("SAPS") in the execution of their duties.
(ii)
the Magistrate erred in finding
that the Appellant and his witness, Bailey, were not
credible
witnesses.
(iii)
the Magistrate erred in not
holding that the Appellant was assaulted by the Second
Respondent
and members of the SAPS by being kicked twice in the abdomen
and
having his camera forcibly removed from him.
[10]
It is trite that a court of appeal will not generally interfere with
the factual findings of a lower court unless, compelling
reasons
exists for it to do so. This is especially so where the credibility
findings upon which its findings are based, are plainly
wrong (R v
Dhlumayo and Another
1948 (2) SA 677
(A) at 700). In this regard,
also see Santam Bpk v Biddulph
2004 (5) SA 586
(SCA) at page 589 para
5, where it was held;
"Whilst
a Court of Appeal is generally reluctant to disturb findings which
depend on credibility, it is trite that it will
do so where such
findings are plainly wrong."
The
court also says further: "This is especially so where the
reasons given for the finding are seriously flawed".
[11]
The Magistrate, in its assessment of the evidence, found
discrepancies in the version of the Appellant. In the Particulars
of
Claim it is stated that he was kicked repeatedly. The Appellant
testified he was kicked twice. On a close scrutiny of the Appellant's
evidence, it would seem that he was consistent in his claim that he
was kicked twice. A report to the Independent Complaints Directorate
by his attorney soon after the incident, also support this version.
In cross-examination, the Appellant was consistent in his version
that he was kicked twice. If one has regard to these factors, it is
more probable that he was kicked twice.
[12]
If one has to have regard to the quality and weight of his evidence
in court, these discrepancies, if it can be called that,
cannot be
regarded as so material to negate his evidence in court. Therefore,
despite this, in my view it does not affect the veracity
of his viva
voce evidence.
[13]
I am further of the view that the court a quo was wrong in finding
that there were contradictions between the evidence of the
Appellant
and the witness, Bailey, as to the number of times that he was
kicked. The Appellant says he was kicked twice by the
Second
Respondent, whilst Bailey testifies that she can only recall that the
Appellant was kicked once.
[14]
A further aspect that the Magistrate failed to consider is the fact
that this was not a static scene. It was a scene of public
unrest,
where people were running around and the recollection of witnesses to
such a scene almost three years thereafter in precise
detail, is
almost impossible. It is also clear that the Appellant and Bailey had
observed the scene from different vantage points.
Bailey was behind
the Appellant who ran in front of her.
[15]
In my view, the Magistrate was unduly harsh and critical in his
assessment of the evidence of the Appellant, but the same cannot
be
said of his assessment of the evidence of the Respondents. The
version of the Respondents' changed during the course of the
trial.
It was initially put in cross-examination to the Appellant that he
tried to release "Rasta" by pulling at the
policeman's
arms.
[16] In the
evidence of the Second Respondent and the witness Worral, both of
them testified that the Appellant never actually interfered
by trying
to assist "Rasta" by pulling at the Second Respondent's arm
as it was put in cross-examination. The evidence
of both the Second
Respondent and Worral was that the Appellant was merely in the
personal space of the Second Respondent, at the
stage when the Second
Respondent pushed him away with his foot. Whilst Worral said in his
evidence that members of the public were
breaking "Rasta's"
hand away from Mullholland's grip.
[17]
From the record it is also clear that the Second Respondent,
Mullholland, was not an impressive witness. He was argumentative
and
evasive at times. An impression was created in his evidence that
throughout the incident he had held "Rasta", and
because of
the interference of the Appellant, "Rasta" then managed to
escape. Later, during cross-examination of both
Mullholland and
Worral, it would seem that this was not the case. According to
photographs that were shown, it was someone else,
an Inspector
Greeff, who had held "Rasta". This is another aspect of the
Respondents' evidence that was critical that
the court a quo failed
to consider.
[18]
In my view the evidence of the Appellant is consistent and is
corroborated by the evidence of Bailey and should have been accepted.
There is an overwhelming probability in favour of the acceptance of
the evidence of the Appellant.
[19]
The Respondent's, on their own version, contend that the Second
Respondent had pushed the Appellant away with his foot, because
of
him being in his personal space. This can hardly be regarded as
sufficient ground of justification for his actions and even
on this
version, his actions are unlawful. The version of the Appellant,
however, for the reasons stated above are more acceptable
and
probable.
Finding
[20] On the
evidence that is common cause and undisputed, the objective facts and
probabilities, I am of the view that the Magistrate
erred in not
holding that the Appellant was unlawfully assaulted by the Second
Respondent.
Damages
[21]
As regards the damages suffered, it is clear that there was an
unjustified and unwarranted assault on the Appellant. The Appellant
was a photo journalist who had a legitimate reason to report in the
public interest about the protest action on this specific day.
What I
find aggravating is the fact that the perpetrator was a police
officer who thought it more important at that stage to confront
these
two journalists than to execute his duties.
[22] In
addition to this, the camera of the Appellant was without good enough
reason confiscated and Bailey's notes were destroyed.
[23] The
Appellant did not suffer any physical injuries. He suffered from
delayed pain. The pain appears to have been negligible
as he did not
require medical treatment. The unlawful assault took place during the
course of his work as a photographer for a
newspaper, in the presence
of members of the public. The trauma of the incident must have
affected his feelings, his dignity and
his reputation. He
accordingly, suffered contumelia and is entitled to damages. I am of
the view that an award of R10 000 is just
and equitable.
The Order
[24]
In the result, I will propose the following order:
(a)
The appeal succeeds with costs.
(b)
The order of the trial court is set aside and substituted by the
following:
"Judgment is granted in favour of the Plaintiff in
the sum of R10 000 (ten thousand rand) in respect of general damages
and
contumelia, together with interest at the rate of 15,5% (fifteen
and a half per cent) per annum from 30 October 2007 to date of
payment and costs."
RCA HENNEY
I AGREE
AND IT IS SO ORDERED
E MOOSA