Fondling v Minister of Correctional Services (584/08) [2009] ZAECPEHC 29 (25 June 2009)

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[2009] ZAECPEHC 29
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Fondling v Minister of Correctional Services (584/08) [2009] ZAECPEHC 29 (25 June 2009)

FORM A
FILING SHEET FOR EASTERN CAPE,
PORT ELIZABETH
PARTIES
:
PATRICK FONDLING V MINISTER OF CORRECTIONAL SERVICES NOT
REPORTABLE
Case
Number:
584/08
High
Court:
PORT
ELIZABETH
DATE
HEARD:
18
& 19 JUNE 2009
DATE
DELIVERED:
25
JUNE 2009
JUDGE(S):
JANSEN
J
LEGAL
REPRESENTATIVES –
Appearances:
for
the Applicant(s):
ADV
HARTLE AND ADV KRUGER
for
the Respondent(s):
ADV
I DALA
Instructing
attorneys:
Applicant(s):
JAMES
PHILLIPSON ATTORNEYS
Respondent(s):
STATE
ATTORNEY
CASE
INFORMATION -
Nature
of proceedings
:
Key
Words
:
Summary:
IN
THE HIGH COURT OF SOUTH AFRICA
NOT
REPORTABLE
EASTERN
CAPE, PORT ELIZABETH
Case No.: 584/08
Date delivered: 25 June 2009
In
the matter between:
PATRICK
FONDLING
Plaintiff
and
THE
MINISTER OF CORRECTIONAL SERVICES
Defendant
JUDGMENT
JANSEN J:
This is an action for damages and
ancillary relief.
The incident which
gave rise to this action occurred on 25 November 2005. At the time
the plaintiff was a prisoner incarcerated
at the Medium B Prison, St
Albans, Port Elizabeth. It was the plaintiff’s case that he, on
the day in question, was unlawfully
manhandled, mauled and assaulted
by employees under the charge of the defendant at the St Albans
Prison. The plaintiff claims
against the defendant an order
declaring the conduct of the defendant’s employees to be
unconstitutional and in breach of the
defendant’s obligation to
safeguard the plaintiff in his custody and protect his right to
personal integrity. The plaintiff
further claims an amount of R150
000 being in respect of pain and suffering, shock and trauma and
contumelia
arising from the alleged incident.
It is common cause
that the plaintiff was entrusted with cleaning duties in and around a
pool room at the Medium B Prison. According
to the plaintiff he was
during lunchtime on the day in question playing pool against one
Nando Goeda, who was also a prisoner in
the same section. One
Zeelie, employed by the Department, came into the pool room and also
played one game against him. According
to the plaintiff he also beat
Zeelie. Thereafter two other employees one Williams and one Simons
also came in. They also played
pool against the plaintiff but he
also beat both of them. Just after his final game against Williams
the plaintiff was grabbed
by Zeelie with his arm around his neck.
Simons and Williams thereafter grabbed him by the legs and hoisted
him off the ground.
They pulled off his trousers and trunk. They
then carried him to a wooden bench next to the wall. Zeelie held him
around the
neck whilst the other two officials each had an arm around
both of his legs. They pulled his legs open. They put him on the
bench
and one started to play with his penis and the other with his
testicles. He struggled and resisted and eventually managed to break

loose. He then went outside to pick up his trousers and his trunk
which, according to him, had been thrown out of the door by
the
officials. When he was about to put his trunk back on, another
official, one Rockman, came in. He grabbed him around the
neck.
Simon and Williams again became involved. They grabbed him and put
him on the pool table. Rockman then “twisted” him,
as he put it.
He was made to lay on his stomach on the pool table. His trunk was
again thrown out of the door. A fellow prisoner,
one China also came
into the pool room. At that stage the plaintiff, in an attempt to
free himself, had his arms around Rockman.
China tried to get his
arms loose. Zeelie then gave an instruction to Goeda to put his
finger into the plaintiff’s anus. Goeda
complied. That
experience, according to the plaintiff, was very painful. Zeelie,
who had a snooker cue stick in his hands pushed
the blunt end thereof
against the plaintiff’s anus. It did not penetrate his anus. It
was, however, also very painful. He
then told the officials that he
was going to report them. According to the plaintiff he could smell
liquor on the breath of Zeelie,
Williams and Simons. The plaintiff
thereafter reported the incident to a more senior official, one
Hoffman. He was taken to the
hospital section where he was attended
to by a male nurse, one Davids. According to the plaintiff he was
not examined by Davids,
but Davids only looked at his anus after he
had requested him to pull his buttocks open. He was given
painkillers and suppositories
by Davids. According to the plaintiff
he was approached by Williams the next day. Williams asked him to
forgive him for his role
in the assault on the plaintiff. He cried
and he gave him R10 as a bribe. He took the R10 but handed it later
to his attorney,
to whom he refers as Mr James.
On behalf of the
defendant four witnesses testified. First was the male nurse David
who attended to the plaintiff. He was called
as a so-called expert
witness. He was a poor witness who based his evidence on wrong
assumptions. Except for the fact that I
will accept that the version
recorded by him in the medical file of the plaintiff was indeed given
by the plaintiff to him, I ignore
his so-called expert evidence
in
toto.
Simons, Williams
and Zeelie testified. According to Simons he was playing pool with
the plaintiff when he smelled dagga on him.
He wanted to search the
plaintiff. The plaintiff resisted. At the time Williams was sitting
in his office which is adjacent
to the pool room. Through a hatch in
the wall between the two rooms Simons requested Williams to come and
assist him to search
the plaintiff. Williams complied. When he got
into the pool room the plaintiff was still held by Simons on his
jersey
.
Williams then put his arms around the plaintiff whereupon Simons
searched his trouser pockets. What was called a “bompie”
then
fell out of a pocket. Simons picked up the “bompie” and opened
it. It was not dagga inside as he suspected, but only
tobacco.
Simons then put the “bompie” on the pool table. The plaintiff
was annoyed and made the remark towards Simons that
he would show him
what he could do. He then took his pair of trousers off and threw it
out of the pool room’s door. When he
wanted to leave, Williams
told him that he could not walk out without his trousers on. He
instructed him to put it back on, which
he did. The plaintiff then
left. Zeelie denied that the plaintiff was ever assaulted indecently
or otherwise as allegedly by
him.
Williams confirmed the evidence of
Simons in all material respects. He also denied any assault upon the
plaintiff.
Zeelie was in his
office next to the pool room. A prisoner with
the
nick name of China made coffee for him. When he was drinking his
coffee he heard voices in the pool room. He then walked to
the pool
room with his coffee in his hand. When he entered the pool room he
saw the plaintiff dressed only in his pyjama shorts
on his lower
body. On the pool table was a piece of paper with tobacco in it. He
denied any involvement in any assault on the
plaintiff. No assault
in his presence was committed on the plaintiff. According to him
Rockman was on lunch and not present in
the pool room.
Ms
Hartle
who, with the assistance of Ms
Kruger
,
appeared on behalf of the plaintiff prepared extensive heads of
argument. In their nineteen typed paged heads they deal with
the
test to be applied in a case such as the instant matter where the
plaintiff’s version of the events was diametrically opposed
to that
of the defendant. They deal with the onus, with the probabilities,
with vicarious liability, with the defendant’s attitude
in this
matter, with the Departmental investigation, with damages and costs.
It was submitted on behalf of the plaintiff that
I should accept the
version of the plaintiff, reject that of the defendant and award
damages with costs to the plaintiff.
Mr
Dala
appeared on behalf of the defendant. In argument, he only pointed
out that the onus was on the plaintiff, that the defendant’s

version was not improbable and that the plaintiff’s version was
improbable. He did not advance any argument to substantiate
his
submissions. He concluded with a submission that if I find in favour
of the plaintiff a proper award of damages should be
R50 000 with
costs on the Magistrates’ Court scale. Mr
Dala
’s
argument was of no assistance to me at all. That, however, does not
relieve me from the duty to consider the evidence and
to give
judgment on the question as to whether the plaintiff has proved his
case against the defendant.
As mentioned, Ms
Hartle
referred to the attitude of the defendant and the manner in which it
conducted this case. I want to add to that. On 9 June 2009,
nine
days before the trial, an application to compel was brought on behalf
of the plaintiff against the defendant. The plaintiff
sought an
order to compel the defendant to discover a Departmental dossier
relating to an enquiry conducted by officials of the
Department into
the matter. This application to compel was strenuously opposed on
behalf of the defendant. Mr
Dala
,
who also appeared on behalf of the defendant in that application, at
the time submitted that if the dossier is discovered the
plaintiff
would receive an unfair trial advantage in the matter to the
prejudice of the defendant. I granted an order against
the
defendant, compelling it to discover the dossier. When Mr
Dala
addressed me on the merits of the case, I invited him to point out
any unfair trial advantage which the plaintiff has received
as a
result of my order compelling the defendant to make discovery. Mr
Dala
could
not.
It was common cause that the onus was
on the plaintiff to prove his case against the defendant on a balance
of probabilities.
Counsel on behalf
of the plaintiff pointed out the following improbabilities in the
defendant’s case. It was submitted that it
is entirely improbable
that the plaintiff could conjure up or contrive a case against four
senior officials who he was bound to
run into on a daily basis, two
of whom the defendant’s witnesses claimed were not even on the
scene when the plaintiff, on the
defendant’s version, was allegedly
searched for possession of dagga. It was submitted that all sorts of
difficulties and unimaginative
consequences would follow on the
plaintiff laying a false charge. There is some substance in this
argument, but, on the other
hand, it is also possible that the
plaintiff, who enjoyed a privileged position as cleaner and tea
maker, who used to play pool
with officials of the defendant, was
quite upset about the false accusation by Simons that he was in
possession of dagga. The
threat made by the plaintiff that he was
going to “show them” should not be lost sight of.
It was secondly
submitted by counsel that Simons’s evidence that he played pool
with the plaintiff for a while before he suddenly
had an impulse to
search him for dagga is absurd. That was submitted to be an
opportunistic attempt to explain away physical contact
with the
plaintiff. In my view, Simons’s conduct can be explained that he
only after some time got so close to the plaintiff
that he could
smell something on him which he thought was dagga.
It was thirdly
submitted on behalf of the plaintiff that the call for the assistance
of Williams to search the plaintiff was only
an explanation or
justification for physical contact that he had with the plaintiff. I
do not find this improbable. On Simons’s
version the plaintiff
resisted the attempt to search him. He could not do it on his own.
He required assistance for a body search.
Williams was in close
proximity. He was the obvious person to be called to give
assistance.
The fourth and last
submission about the improbabilities in the defendant’s case
pointed out by counsel was the story about the
plaintiff throwing off
his pants which was submitted was curiously odd, but would provide a
plausible explanation for the plaintiff’s
semi-naked appearance on
a video recording. It is common cause that a video camera was
situated outside the pool room. The plaintiff
knew about it and the
defendant’s officials too. According to the plaintiff not only his
pair of trousers but also his trunks
were thrown out of the pool room
by the officials when they assaulted him. That caused him to go out
of the pool room with his
lower body stark naked to pick up his
clothes. That would have been revealed by watching the video
recording. It is not known
what happened to the video recording. I
find it highly improbable that the officials, well aware of the video
camera, would throw
out the plaintiff’s clothes as part of an
indecent assault upon him. That would immediately have attracted
attention. If they
wanted to assault him, and in particular
indecently, they would most probably not have thrown out his trousers
and trunk for a
video recording to be made thereof. On the other
hand, the plaintiff, after a threat made as testified by Simons,
decided to throw
out his pants to concoct a version of an indecent
assault inside the pool room. On the plaintiff’s version, the
officials supplied
video evidence against them of an indecent assault
upon the plaintiff. I find that highly improbable.
It was submitted on
behalf of the plaintiff that he was consistent in his version. I do
not agree. Paragraph 7 of the Plaintiff’s
Particulars of Claim
deals with his alleged manhandling and assault. In terms thereof the
members: (1) hoisted him off the ground;
(2) restrained his person by
holding him around his neck in a “vice grip” and on each leg;
(3) pulled off his trousers to
expose his private parts; (4)
squeezed his testicles; (5) strangled him on the neck; (6)
further restrained him by having
a fellow prisoner hold his hands
behind his back; (7) exposed him again by pulling off his trousers
for a second time; (8)
had him fingered in his anus by a fellow
prisoner; and, (9) rammed the blunt end of a snooker cue stick into
his anal opening.
In his evidence the plaintiff materially diverted
from the allegations made in paragraph 7. He testified that one of
the members
played with his testicles, as opposed to squeezing his
testicles. He specifically did not mention in his Particulars of
Claim
the fact that one of the members played with his penis in an
attempt to get it erected. He gave evidence to that effect.
Furthermore,
it was specifically testified by the plaintiff that the
snooker cue stick was not pushed into his anal opening but only
against
it, contrary to the allegation made in his Particulars of
Claim.
It is common cause
that the plaintiff made a statement about the incident to a senior
official at St Albans Prison, one Mr Hoffman
on 27 November 2005, two
days after the incident. That statement appears on page 21 of the
bundle marked “A” handed in by
the plaintiff. That statement
reads as follows:
‘
On Friday 25 November 2005 at
approximately 14:00 myself and fellow inmate Sthembiso Yezo was
playing a game of pool in A-Section’s
poolroom. After I played and
win Stembiso I played pool with Mr Zeelie. I win the game and played
another game with him, which
I also win. Thereafter I played pool
with mr Simons. After we was finished with the game and I was busy
to prepare the balls
for another game, Mr Zeelie grab me around my
neck while Mr Simons and Williams Q.D. pull of my trousers. Mr
Zeelie throw my trouser
out of the room. My body from below my waist
was naked. Mr Zeelie then said to them to take me to the operation
table. He was
referring to the brown wooden table in the poolroom.
They lay me down on the table and spread my legs open wide. Then
they let
me go and I went out of the poolroom to pick up my trouser
in the courtyard. I went inside the poolroom and while I was busy
pulling
on my trouser Mr Rockman came and grab me tight. Inmate
“China” Mario Jansen helps Mr Rockman grabbing me. Messrs
Zeelie,
Simons and Williams pull off my trouser again. Mr Zeelie
close the door and said to inmate Fernando Goeda to insert his finger

into my anus. Fernando then do as what Mr Zeelie told him to do and
insert his right middle finger into my ans. Then Mr Zeelie
said to
me in Afrikaans: “Hey you gat stink na kak” and he took the pool
cue and squeeze it against my anus. Thereafter they
let me go and I
went and pull on my clothes.
I went to the
investigators office where I report the incident to Mr Hoffman. I
went back to A-Unit after Mr Hoffman has phoned
Mr Simons to attend
to my complaint to see the Head of the Centre but he refuse to assist
me. I went then back to Mr Hoffman and
he escort me to A-Unit where
he recorded my complaint in the unit’s diary. Thereafter he
escorted me to the Regional Hospital
where the incident was also
recorded. In the hospital we met Mr Jacobs and report he incident to
him.
The following
Saturday 26 November 2005 Mr Williams came to me and apologise to me
for what they has done to me and gave me a ten
rand note (R10.00). I
took the money (R10.00) and give it to David Price so that he could
give it to my lawyer.’ (
Sic)
This statement
materially differs from the evidence given by the plaintiff in Court.
He specifically denied that he ever played
a game of pool against an
inmate
by the name of “Sthembiso Yezo”. According to his evidence he
also played a game against Mr Williams. No mention was made
about
such a game in his statement. In his statement he did not mention
anything about the members playing with his testicles
or his penis or
an alleged remark about the size of his penis as he testified in
Court. In evidence the plaintiff did not mention
the remark
allegedly made by Zeelie to him in Afrikaans. In his statement he
mentioned that he had handed the R10 note given to
him by Williams to
one David Price. That was confirmed by the plaintiff when he made an
additional statement to Mr Hoffman on
the 5 December 2005. In that
statement he said the following:
“
On Saturday 26
November 2005 Mr Williams apologise to me about what happened and
handed a ten rand note to me. It took it and gave
it to inmate David
Price who said he is going to give it to the lawyer, I only know the
lawyer as Mr Phillips as it was Price who
arranges the lawyer. I did
not met him personally but I talk to him over the phone on Monday 28
November 2005. Inmate David Price
said to me he is going to give the
money R10,00) to the lawyer as proof of the bribery. That’s all I
declare.” (
Sic)
When he was
cross-examined he was specifically asked to whom he handed the money.
He denied having handed the money to David Price
but was adamant
that he had handed it to his lawyer. This material contradiction
places a big question mark behind the evidence
of the plaintiff that
he was approached by Williams who apologised to him and wanted to
bribe him.
That
affects the evidence of the plaintiff
in
toto
.
The plaintiff,
furthermore, materially contradicted himself when he testified about
the incident where the finger was allegedly
put into his anus. He
testified in chief that Rockman grabbed him around his neck and that
Simons and Williams then threw him
onto the pool table. They again
pulled off his trunk. Rockman then twisted him to such an extent
that he landed with his stomach
on the pool table. Thereafter Goeda
was instructed by Zeelie to put his finger into the plaintiff’s
anus. Thereafter Zeelie
pushed the cue stick against his anus. He
created the impression that this was all done to him when he was
lying on his stomach
on the pool table. During cross-examination he
specifically testified that he was not on the pool table when Goeda’s
finger
was put into his anus and when Zeelie pushed him with the
snooker cue stick. He was still on the ground. It was only
thereafter
that he was thrown onto the pool table. Nothing more was
done to him after he had been thrown onto the pool table.
The plaintiff was
not consistent in his version. The plaintiff’s version of the
events is not more probable than that of Simons,
Williams and Zeelie.
In my judgment the plaintiff has not succeeded to prove his case
against the defendant.
In the result, the plaintiff’s claim
is dismissed with costs.
_______________________
J C H JANSEN
JUDGE OF THE HIGH COURT