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[2010] ZAGPPHC 142
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Mahlangu v Minister of Safety and Security (50230/08) [2010] ZAGPPHC 142 (6 October 2010)
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IN
THE NORTH GAUTENG HIGH COURT,
PRETORIA
(REPUBLIC OF SOUTH AFRICA)
Case
No.: 50230/08
Case
heard: 2010-09-10-2010-09-22
Date
of Judgment: 2010-09-08
In the matter between:
APRIL
TSANANA
MAHLANGU
..............................................................................
PLAINTIFF
and
MINISTER
OF SAFETY &
SECURITY
..................................................................
DEFENDANT
JUDGMENT
Hiemstra
AJ
[1]
The plaintiff claims damages from the defendant consequent upon
injuries he sustained on 3 March 2008 in Kwamhlanga, Mpumalanga
during an arrest by members of the South African Police Service (the
policemen).
[2]
I ruled at the commencement of the trial that the issue of liability
be separated from the issue of the quantification of the
plaintiff's
damages and postponed the issue of damages
sine
die.
[3]
The plaintiff contends that he had been assaulted during the arrest
in consequence of which he sustained a serious spinal cord
injury
resulting in partial paralysis of his lower limbs.
[4]
The defendant contends that the policemen arrested the plaintiff as a
result of a complaint that the plaintiff had raped a deaf-mute
woman,
N S (the complainant) at gunpoint. The defendant further contends
that the plaintiff, after the arrest, had attempted to
escape as a
result of which one of the policemen, Constable Msiza, tackled him
from behind causing the plaintiff to fall on his
face with Msiza on
his back. It is alleged that whatever injuries the Plaintiff suffered
were a result of the forceful arrest,
which the defendant claims had
been reasonable and proportional as envisaged by
s 49(2)
of the
Criminal Procedure Act, 51 of 1977
, after the Plaintiff had tried to
escape.
[5]
It is common cause that the policemen acted within the course and
scope of their employment at all relevant times.
[6]
The plaintiffs evidence was briefly the following:
[7]
The complainant approached him after he had alighted from a taxi
during the evening of 2 March 2008 in the Chris Hani settlement
in
Kwamhlanga. She was deaf and mute and made him to understand through
hand-signs that she was lost and hungry.
[8]
He felt sorry for her and took her to a nearby tavern where he bought
her a Coke and Simba chips.
[9]
The plaintiff was staying in the home of his sister, Poppy Mahlangu,
a few hundred metres from the tavern. He agreed that the
complainant
could stay at the house for the night, and they walked to the house
from the tavern.
[10]
After arrival, the plaintiff went to his bedroom where he changed his
trousers. Thereafter he went to the kitchen to prepare
food. The
complainant was in the dining room at the time. He went to the dining
room but found that the complainant was no longer
there. He went to
look for her and found her in his bedroom. This led him to check his
trouser pockets in which he had left R300
in three R100 notes. The
money was gone.
[11]
He confronted the complainant but she denied all knowledge of the
money. He became angry and started searching her, whereupon
she
produced the money from the front of her pants. He ordered her to
leave the house, but she pleaded with him not to make her
go. She
started to make advances on him by holding and kissing him and
pulling down her pants. The plaintiff said they "reconciled"
and they had intercourse.
[12]
After the intercourse he went back to the kitchen to continue with
the preparation of the food. When he returned with the food
to the
dining room he found that the complainant had again disappeared. He
searched the house and outside area of the house, but
she was
nowhere. He returned to the house.
[13]
Sometime later four armed policemen, in full uniform and bullet-proof
vests arrived at the house. They accused the plaintiff
of having
raped the complainant, and claimed that he had used a firearm in the
process. They thoroughly searched the house but
found no firearm.
They assaulted him by kicking and pushing him around. He was adamant
that he had not been handcuffed at any stage.
[14]
The policemen escorted him to the police vehicles that were parked
about 100 m down the road from the house. As I understand
the
plaintiff's evidence, something like the following happened: Upon
reaching the back door of one of the vehicles, Constable
Msiza
grabbed him from behind, locking his arms behind his back. He lifted
him off his feet and then pulled him down. In pulling
him down, he
dropped his body weight on him, forcing him onto his buttocks and his
upper body forward so that his face touched
the ground. It is common
cause that Msiza weighed about 120 kg at the time and that the
Plaintiff weighed about 65 kg. He was unable
to breathe or to stand
up. He asked Msiza to manipulate his neck, as I understand it, to
open his airways. Msiza took hold of his
head and pulled it upwards.
This had the desired effect, but he could still not stand up. Msiza
then picked him up and put him
into the back of the vehicle. They
drove to the police station.
[15]
The plaintiff said that at the police station he was still unable to
walk and he was pulled out of the police van by his feet
and dragged
into the station where he was left in a passage for the night.
According to occurrence book, he was detained at 03:40
on 3 March
2008. At approximately 07:15 he was taken to the hospital.
[16]
Poppie Mahlangu, the plaintiffs sister and the owner of the house,
also testified, but her evidence concerns events after the
alleged
assault and I do not find it necessary to deal with her evidence.
[17]
Maria Skhosana is the elder sister of the complainant. The
complainant did not testify, but Maria Skhosana conveyed the
following to the legal representatives of the parties, which they
accepted as common cause facts: The complainant was residing
in the
vicinity of the Chris Hani settlement while her sister, Maria, lived
at Orange Farm.
•
She
is 24 years old.
•
She
was born deaf and mute, but family members have the impression that
she can sometimes hear
She
has not undergone any formal schooling.
She
has the tendency to go walkabout.
•
She
is, and was at the time, sexually active.
[18]
The version of the policemen, as testified by Constables Msiza and
Makgalwa, was to the effect that they had received a report
of a rape
in the area. They proceeded to the address given to them, where they
met the complainant and the woman who had reported
the alleged rape.
The complainant communicated with them through sign language from
which they understood her to indicate that
the plaintiff had raped
her at gunpoint. She showed them where the plaintiff lived and they
proceeded, together with the complainant,
to the house.
[19]
They knocked on the door, but nobody opened. They saw through a
window that a television set was on. After knocking repeatedly,
one
of them shouted that if nobody opened, they would break down the
door. The plaintiff then opened and they entered the house.
They
confronted the plaintiff with the rape and asked him where the
firearm was. He denied that he had raped the complainant and
that he
had a firearm. They searched the house thoroughly but found no
firearm. They told him that he was being arrested and handcuffed
him.
They say that he resisted being handcuffed to such an extent that
some of them had to restrain him, while another put on the
handcuffs.
They took him outside, found his keys in his pocket, and locked the
door. The plaintiff resisted being taken to the
police vehicles and
they had to lift him from the ground in order to move him forward.
[20]
Msiza testified that he was holding on to the plaintiff by his waist
band while another policeman tried to open the backdoor
of the police
vehicle. The policeman who was opening the door struggled with one of
the latches and he released the plaintiff for
a moment in order to
assist with the opening of the door. At that point the plaintiff
turned around and ran away. He (Msiza) gave
chase for about 2-3
metres and tackled the plaintiff from behind, landing on his back.
The plaintiff said that he could not stand
up, but Msiza thought that
he was feigning injury in order to create another opportunity to run
away. He then put the plaintiff
into the back of the police vehicle.
[21]
Msiza and Makgatwa contradicted each other as to the following:
•
Where
and by whom the plaintiff had been handcuffed;
•
Who
was present when he had been handcuffed;
Whether
force was required to handcuff the plaintiff;
Whether
the plaintiff resisted arrest;
•
Who
locked the front door after the arrest;
•
Whether
the plaintiff resisted being taken to the police vehicles;
•
Whether
the back door of the vehicle they intended to put the plaintiff in,
had been open or closed;
•
Precisely
where the different policemen were when the plaintiff allegedly tried
to flee;
•
The
direction in which the plaintiff allegedly fled;
•
Where
Msiza tackled the plaintiff.
[22]
Mr Strydom, appearing for the plaintiff, criticised the defendant for
not calling the complainant, a forensic nurse who had
examined the
plaintiff, and one of the other policemen. Constable Thokwane. He
argued that I should draw an adverse inference against
the defendant
for failing to call these witnesses, I cannot draw any inference from
the failure to call the complainant and the
forensic nurse. Their
evidence can shed no light on the alleged assault, or forceful
arrest.
[23]
I do, however, draw an adverse inference from the failure to call
constable Thokwane, one of the four policemen. A disturbing
aspect of
the case is that it does not seem that the rape charge against the
plaintiff had been pursued. It also does not seem
that the police
officers did anything to investigate the alleged rape, or took the
particulars of the complainant. They simply
decided to arrest the
plaintiff on strength of the hand signs given to them by the deaf and
mute complainant. They were called
to investigate a charge of rape,
but did nothing to investigate or even identify the room where it had
allegedly taken place. When
asked in cross-examination about the rape
charges, both Msiza and Makgalwa said that they knew nothing about
that since Thokwane
had opened the docket. In addition, he was
present at all relevant times and clearly played a prominent role.
From the evidence
of Msiza and Makgalwe it seems that Thokwane had
played a leading role in the events of the night. He conversed with
the complainant
and gave instructions to the others. If the two
witnesses for the defendant had been truthful, he would have been
able to clear
up the contradictions between them. The suspicion looms
large that he was not called because his evidence would only have
elicited
more contradictions.
[24]
I am mindful of the fact that it is difficult for witnesses to
accurately describe an incident or a series of events that happen
over a short period. They view the situation or event from different
angles and do not necessarily focus on the same aspects. Msiza
and
Makgalwa testified through an interpreter who often struggled to
express himself clearly, and some of the contradictions can
be
ascribed to faulty interpretation. Based on the contradictions alone,
I can therefore not categorically reject their evidence
as false. It
is therefore necessary to consider the inherent probabilities of the
different versions.
[25]
I can find nothing inherently improbable in the plaintiff's version.
He described the events as best as he could. Admittedly,
there was no
corroborating witness, who might no doubt have contradicted him in
certain details, due to the vagaries of memory
and perception. Mr
Joubert criticised his evidence in certain respects, and I take note
thereof. However, whatever contradictions
there may be, they are not
serious and do not cast significant doubt as to his overall
credibility.
[26]
Apart from the serious contradictions and inconsistencies in the
evidence of the defendant's witnesses, I find their version
so
improbable that I have no hesitation in rejecting it in all material
respects. I find it impossible to believe that the plaintiff,
surrounded by four heavily armed policemen, allegedly hand-cuffed
with his hands behind his back, would have made an attempt to
flee.
The four policemen were so close to the plaintiff that any one of
them could easily have stopped him. When this improbability
was put
to Msiza and Makgalwa, both responded by saying that it was dark and
that the plaintiff could have disappeared into one
of the stands
along the road. This is facile. There was no evidence that it had
been a particularly dark night. The policemen had
no difficulty
earlier seeing the complainant's hand signs and interpreting them,
despite the fact that Thokwane was the one who
conversed with her.
They were mere onlookers. They had no difficulty finding the
plaintiff's home and no difficulty finding their
way back to the
vehicles. They described in detail where everyone walked in relation
to the others when they returned to the vehicles.
[27]
I further find it highly improbable that the plaintiff would have
sustained the injuries that he did, had he been tackled from
behind.
I do not understand how Msiza could have landed on the plaintiffs
back in the process of tackling him, and even if he did,
how it could
have caused the spinal injury, it could have winded him, or at worst
broken some of his ribs.
[28]
I therefore find that the plaintiff had sustained his injuries during
an unlawful, intentional assault on him by Constable
Msiza.
In
the result, 1 make the following order:
1.
The
defendant is liable to the plaintiff for the damages the plaintiff
sustained consequent upon the assault on him by constable
Msiza on 3
August 2008;
2.
The
defendant is ordered to pay the costs in respect of the determination
of the issue of liability.
J.
Hiemstra AJ
Acting
Judge of the High Court
Date
heard:
2010-09-10
Date
of judgment:
2010-10-06
Counsel
for the plaintiff:
G.J.
Strydom
Attorneys
for the plaintiff:
Malcolm
Loyns & Brivtk Inc
Counsel
for the defendant:
S.
Joubert SC
Attorney
for the defendant:
The
State Attorney