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[2011] ZAECPEHC 41
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Poswa v Minister of Safety and Security (1115/08) [2011] ZAECPEHC 41 (29 September 2011)
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE, PORT ELIZABETH)
CASE NO.: 1115/08
In the matter between:
NKOLISEKO POSWA
…...........................................................................
PLAINTIFF
And
THE MINISTER OF SAFETY AND SECURITY
…................................
DEFENDANT
JUDGMENT
______________________________________________________________
BESHE, J:
[1] On the 15
th
of April 2007, the plaintiff
was arrested by South African Police Services (SAPS) members who were
employed by the defendant, for
possession of dagga.
[2] Plaintiff contends that after the arrest he was
assaulted by SAPS members. He now claims compensation for damages
suffered by
him as a result of that assault.
[3] Damages are claimed under the following heads:
1.1 general damages in respect of unlawful and wrongful
assault and the concomitant pain, shock, suffering, discomfort, loss
of
amenities of life and
contumelia
suffered by him.
R150-000,
00
1.2 general damages in respect of shock and trauma as
well as psychological dysfunction in the form of depression and
post-traumatic
stress.
R150-000, 00
1.3 future medical expenses in respect of:
1. 15 sessions of psychological counselling for
treatment of post-traumatic stress and depression at R750-00 per
session.
R11, 250-00
2.
1. 15 sessions of psychiatric counselling for treatment
of post-traumatic stress and depression at R750-00 per session.
R11,
250-00
2. psychopharmocotherapy for an estimated 24 months at
R500-00 per month.
R12, 000-00
[4] In support of plaintiff’s case, four witnesses
testified. A summary of the evidence of the four witnesses now
follows
albeit
not in the chronological order in which the
witnesses testified.
[5] Plaintiff’s version is that at about 08h00 on
15 April 2007 whilst driving in his motor vehicle a Jetta at
Motherwell,
a hardbody Nissan double cab van as well as a Condor
motor vehicle blocked his way, forcing him to bring his motor vehicle
to a
halt. Approximately 10 men alighted from the two motor vehicles.
He was instructed to alight from his motor vehicle. The men told
him
they were looking for dagga and searched his motor vehicle. According
to him nothing was found inside his vehicle. The men
who, it became
common cause, were members of SAPS, threatened the plaintiff saying
they wanted the dagga and plaintiff was going
to produce it.
[6] He was then taken to a secluded spot not far from
Coega Road where he was assaulted. His hands were tightly handcuffed
from
behind his body, his legs bound together with his belt and
caused to lie on his back. At that stage he was being kicked with
booted
feet, struck with fists and a plastic pipe on his back and
chocked with a tube that was placed over his head and pulled down his
face and held down by one of the policemen who was behind his head.
[7] At the time he was kicking and screaming and fearing
for his life. He felt the need to defecate and told the police but
the
assault continued and he ultimately soiled himself. He was then
told to go and clean himself in the stream that was nearby which
he
did in the glare of the policemen. He said that in a bid to save
himself from the assault or being assaulted further he told
them
there was dagga in his house, whereupon all three motor vehicles
drove to a house he shares with his wife Pinky Hulushe which
is also
at Motherwell.
[8] It is common cause that at that stage plaintiff was
a passenger in the Condor and was handcuffed.
According to him, Ms Hulushe as well as other local
people were outside their houses watching as the three cars arrived.
The policemen
got out of the motor vehicles. He called out to Ms
Hulushe saying he was being killed and banged his handcuffed hands
against the
window of the Condor. Ms Hulushe proceeded towards the
Condor but the policemen prevented her from going any where near the
Condor
and took her inside the house.
[9] He was thereafter taken to Motherwell police station
where he was charged with possession of dagga and locked up. On the
following
day, a Monday he appeared in court and was released on his
own recognisance. After his release from custody he went to see Dr
Biyana
who after examining him recorded his findings in a Medico
Legal Examination Report (J88) which plaintiff took to the Motherwell
police station with a view of laying a charge against the policemen
who assaulted him. He however did not get any co-operation
from the
officer on duty at the police station and was instead advised to go
and talk to a lawyer.
[10] Plaintiff testified that as a result of the assault
he sustained injuries to his mouth, jaws, back, right leg and both
wrists
which was as a result of being tightly handcuffed. The marks
of the wrists are still visible. He testified that he suffered pain
as it was difficult for him to open his mouth or chew. He could not
drive and stayed at home for a week during which he could not
sleep
because of pain. Since the incident he becomes nervous or anxious
when he sees a police officer, suffers from insomnia, is
depressed,
irritable, short tempered and withdrawn as he prefers to keep to
himself.
[11] Plaintiff’s evidence was confirmed by his
wife Pinky Hulushe in so far as plaintiff having left home at around
08h00
and returning at about 12h00 as part of a contingent travelling
in three motor vehicles including his Jetta. That he was a passenger
in the Condor. She testified that after the three motor vehicles had
stopped in an open space in front of their house, she saw
plaintiff
knocking on the window or banging against the window of the Condor
with the back of his handcuffed hands screaming that
they are killing
him. At this stage the policemen were talking to her questioning her
about dagga that plaintiff told them was
in the house. She suggested
that they should let the plaintiff out of the Condor so that he could
point out where the dagga was.
[12] The police refused and insisted she opened the
house so that they could search for dagga. They then searched the
house, in
the process took clothes out of the wardrobe and threw them
on the floor. In one room they found six bags of cement, tore open
the one on top and spilled the cement on the floor. As the police
were proceeding back to the motor vehicles, she tried to force
her
way to the Condor but was prevented from reaching the Condor by one
of the officers, who also sprayed her face with pepper
spray.
Thereafter the officers left with the plaintiff still in the Condor
where he had remained throughout their stay at the witnesses’
premises. They however left plaintiff’s Jetta behind.
[13] She testified that she followed the two police
vehicles to the police station but did not get any answers. It was
later that
evening that she received a telephone call from the police
advising her that the plaintiff had been detained in connection with
possession of dagga and will be appearing in court the following day.
[14] After the release of the plaintiff on his own
recognisance the following day, she observed that his mouth was
swollen, had
scratches and abrasions on his neck, weals on his back,
his wrists had lacerations, abrasion on the elbow. Plaintiff
complained
of painful jaws and he chewed and spoke with difficulty.
[15] After the incident she noticed that plaintiff was
withdrawn, less talkative, suffers from insomnia and becomes fearful
and
nervous upon seeing the police.
[16] Dr Ngubengcuka Biyana examined the plaintiff on the
day he was released from detention and noted the following:
laceration
on his lower lip, marks on his back, bruises on his right
knee, laceration on his right knee, tenderness on the neck, and
bruises
on both his wrists. Dr Biyana also observed that the
plaintiff was withdrawn and agitated. He also testified that he
foresaw that
assault could lead to major depression and asocial
behaviour on the part of the plaintiff.
[17] Dr Tuviah Zabow, a psychiatrist testified that he
consulted with the plaintiff some three years after the incident on
31 August
2010. His clinical diagnosis was:
1. Depression (mild residual)
2. Generalised anxiety with situational component.
3. Post-traumatic stress reaction – moderate
residual features with partial recovery.
According to Dr Zabow, there is a clear causal
connection between the assault and plaintiff’s psychological
reaction. Adding
that, the depression and anxiety are persistent and
should be addressed to improve overall functioning capacity of the
plaintiff.
[18] In a supplementary report as well as his evidence
in court Dr Zabow stated that he is of the opinion that plaintiff
requires
treatment and counselling consisting in his view of:
(1) 15 sessions of psychiatric counselling for treatment
of post-traumatic stress and depression at the rate of R550-00 per
session.
(2) psychopharmacotheraphy for an estimated period of 24
months at an estimated rate of R500-00 per month.
[19] Dr Zabow however conceded that 12 months of
psychopharmacotheraphy would be reasonable, although it is difficult
to predict
what will happen in future but that plaintiff will require
the treatment due to stress associated with re-living the incident.
[20] As indicated earlier the only witness to testify on
behalf of the defendant was warrant officer Collins Lundi Boyce.
[21] His evidence was briefly to the effect that as
members of the defendant they received information relating to the
plaintiff
and possession of dagga. Armed with the description of
plaintiff and his motor vehicle they spotted him whilst they were
driving
around Motherwell. They stopped him and searched his motor
vehicle. The search yielded a plastic bag that contained small
parcels
of dagga. They then questioned him about the origin of the
dagga as a result of that questioning plaintiff took them to
approximately
5 houses that they searched but did not find any dagga.
Thereafter they took the plaintiff to his house where they met Ms
Hulushe.
They alighted from the motor vehicles in which they were
travelling together with the plaintiff. After obtaining permission to
search the house they proceeded to do so but did not find any dagga.
At the time of the search plaintiff was also inside the house.
On
leaving the house when an attempt was made to place the plaintiff
inside one of the motor vehicles he refused to get in protesting
that
the dagga did no belong to him that he bought it in Motherwell.
[22] However they managed to place him in the Condor by
forcefully pushing him into the Condor when he was digging his heels
and
refusing to get into the motor vehicle. Warrant Officer Boyce was
at pains to describe how plaintiff managed to resist getting into
the
Condor with his hands handcuffed together.
[23] He denied that the plaintiff was taken to a
secluded area where he was assaulted and suffocated by having a tube
pulled down
his face and that his legs were bound with his belt. He
denied that plaintiff was tightly or violently handcuffed.
[24] He confirmed that there were about 11 policemen
when they stopped the plaintiff. Under cross-examination he confirmed
that
plaintiff complained that handcuffs were eating into his flesh
and that he then loosened them slightly. He does not recall whether
plaintiff complained again or that his wrists were injured. Although
he took part in the searching of plaintiff’s house he
does not
recall how many officers entered the house or seeing the six (6) bags
of cement inside the house or that one of the bags
was torn and
cement spread on the floor. But said he could not dispute that it
happened or that clothing was thrown on the floor
by his companions.
He did not hear plaintiff shout that he was being killed calling out
to his wife, did not recall Ms Pinky Hulushe’s
face being
sprayed with pepper spray.
[25] It is noteworthy that the defendant does not
dispute that plaintiff sustained the injuries that were described by
plaintiff
and the witnesses who testified on his behalf. Defendant
however denies that the injuries were sustained or inflicted during
the
course of an assault by its members. There is no suggestion that
plaintiff had already been injured at the time he was arrested
by
members of the defendant and no explanation from the defendant as to
how the plaintiff sustained those injuries.
[26] Counsel for the defendant
Mr Simoyi
did not
assail plaintiff’s evidence in any significant way except on
two aspects – He argued that the injury to his
jaw was an
afterthought on the part of the plaintiff because no mention of such
injuries was made by the doctor who examined him
on the day following
the one of the alleged assault – so,
Mr Simoyi
argues is
the allegation that he soiled himself during the course of the
assault. Because this emerged for the first time during
consultation
between plaintiff and Dr Zabow some three years after the incident
and did not appear on his amended particulars of
claim.
[27] Counsel for the plaintiff,
Mr Mouton
countered
this argument by submitting that the particulars of claim detailed
the manner of assault and not the result of the assault.
It is indeed
so in paragraph 5.2 plaintiff sets out the manner in which he was
assaulted including at 5.2.2 choking and 5.2.5 suffocating
with a
rubber tube.
The consequences of the assault as detailed in paragraph
6 are said to be bodily injuries including:
6.1.1 an injury to his neck
6.1.2 extensive bruising
6.1.3 contusions and abrasions
6.1.4 psychological trauma and dysfunction in the form
of depression and post-traumatic stress and disorder.
6.1.5 emotional shock and trauma
[28] Details of consequences of the assault are not
given, such as pain, the degree thereof, anxiety, fear, inability to
control
bowel movement as a result of chocking and suffocation.
[29] In my view the fact that plaintiff’s
particulars of claim do not contain an allegation that he soiled
himself during
the course of the assault does not affect his
credibility.
[30]
Mr Simoyi
drew the court’s attention
to very useful authorities as to the approach to be taken by a court
when confronted with divergent
versions.
[31] The bulk of his submissions however concentrated on
what he suggested would be a just and reasonable award for damages
and
gave the court examples of awards that were given by courts in
circumstances similar to the ones that obtained in the present
matter.
[32] As was rightly pointed out by
Mr Simoyi
the
proper approach to be taken by court when confronted with divergent
versions was determined in
Stellenbosch Farmers’ Winery
Group Ltd and Another v Martell et cie and Others
2003 (1) SA 11
SCA
at 14 paragraph 5
to the following:
“
The
technique generally employed by courts in resolving factual disputes
of this nature may be conveniently summarised as follows:
To come to a conclusion on
disputed issues a court must make findings on (a) the credibility of
the various factual witnesses, (b)
their reliability and (c) the
probabilities. AS to (a), the court’s finding on the
credibility of a particular witness will
depend n its impression
about the veracity of the witness. That in turn will depend on a
variety of subsidiary factors, not necessarily
in order of
importance, such as (i) the witness’ candour and demeanour in
the witness-box, (ii) his bias, latent and blatant,
(iii) internal
contradictions in his evidence, (iv) external contradictions with
what was pleaded or put on his behalf, or with
established fact or
with his own extracurial statements or actions, (v) the probability
or improbability of particular aspects
of his version, (vi) the
calibre and cogency of his performance compared to that of other
witnesses testifying about the same incident
or events. As to (b), a
witness’ reliability will depend, apart from the factors
mentioned under (a) (ii), (iv) and (v) above,
on (i) the
opportunities he had to experience or observe the event in question
and (ii) the quality, integrity and independence
of his recall
thereof. As to (c), this necessitates an analysis and evaluation of
the probability or improbability of each party’s
version on
each of the disputed issues. In the light of its assessment of (a),
(b) and (c) the court will then, as a final step,
determine whether
the party burdened with the
onus
of proof has succeeded in
discharging it. The hard case, which will doubtless be the rare on,
occurs when a court’s credibility
findings compel it in one
direction and its evaluation of the general probabilities in another.
The more convincing the former,
the less convincing will be the
latter. But when all factors are equipoised probabilities prevail.”
[33] As indicated earlier in this judgment, not much
criticism was levelled at the manner in which the plaintiff and his
witness
gave evidence. I also could not find any flaws in their
evidence. Plaintiff and Ms Hulushe both gave evidence in a clear and
cogent
manner. They did not contradict themselves or each other. They
were both impressive as witnesses. Their evidence regarding the
injuries that plaintiff sustained and the effect thereof was to a
large extent corroborated by medical evidence that was placed
before
court. I can find no reason why I should not accept plaintiff’s
evidence.
[34] The same however cannot be said for defendant’s
evidence. Warrant officer Boyce who testified in support of the
defendant’s
case did not impress as a witness. His version did
not sound probable at all. According to him, they stopped plaintiff’s
motor vehicle between 11h00 and 12h00, searched his motor vehicle,
questioned him, as a result of questioning he led them to
approximately
5 houses, each of those houses were searched. They
thereafter proceeded to his house where they conducted a search.
[35] What are the probabilities of all this having taken
place in approximately one hour. In my view this is an attempt by
Warrant
Officer Boyce to shorten the time that they spent with the
plaintiff so that it would appear that they could not have had the
time
to take plaintiff to a secluded spot and assault him in the
manner he described. He initially denied that plaintiff was
handcuffed
tightly or violently. But under cross-examination
confirmed that at some stage plaintiff complained that the handcuffs
were eating
into his flesh and that he then loosened them slightly.
In a bid presumably to explain plaintiff’s injuries, it emerged
for
the first time when he was cross-examined that plaintiff refused
to get into the police vehicle (Condor) after his house was searched.
The manner in which plaintiff resisted getting into the Condor seems
improbable given the fact that his hands were bound together
in
handcuffs.
[36] The conclusion that plaintiff’s version is
more probable is inescapable. Accordingly plaintiff’s version
is accepted
as being true. That being so I am satisfied that the
plaintiff has succeeded in showing that he was wrongfully and
unlawfully assaulted
by employees of the defendant. And that the
defendant is liable to the plaintiff for the damages he has suffered.
[37] As regards the quantum of damages to be awarded
counsel have referred me to a number of cases as examples of sums
that were
awarded as compensation for damages suffered in
circumstances similar to this matter. I will have regard to those
examples as guidelines
in the exercise of my discretion as to what
would be a fair and reasonable amount to award and to the extent that
the examples
may be comparable to the injuries sustained by the
plaintiff.
[38] As indicated in paragraph 3
supra
an amount of R150 000.00 is claimed for
general damages in respect of the assault, and R150 000.00 in respect
of shock and trauma,
depression and post-traumatic stress.
[39]
Mr Simoyi
for the defendant argued that the
two heads should be taken together and that an amount of R80 000.00
would be a reasonable and
fair amount to be awarded and referred the
court to several cases as examples of amounts that were awarded as
compensation for
damages following assaults. The parties agree that
the award for future medical expenses should be subject to a 10%
contingency
deduction.
[40] In
Khuselo Sixam v The Minister of Safety and
Security Case no. CA 112/2009
an unreported decision of this
division, the appellant had sustained multiple lacerated wounds, five
of which were above the knee,
three below the left knee, two around
the ankle, one on the right thumb, three on the dorsal aspect of the
left wrist and two on
the palmer aspect of the right wrist and many
of the lacerations being deep and having required stitching. The
appellant in that
case was said to have been traumatised by the
attack, but according to the doctor such trauma would not be
permanent or long term.
An amount of R40 000.00 was awarded for
general damages in respect of the assault.
[41] There is no doubt that plaintiff in this matter was
subjected to a brutal assault which resulted in a lot of pain,
suffering,
humiliation, shock, trauma and depression. In my view the
plaintiff is entitled to the following award: with the two heads
under
which general damages are claimed being combined:
General damages:
R170 000.00
Future medical expenses:
The parties are
ad idem
that a contingency
deduction of 10% from future medical expenses will be appropriate in
view of the time that has elapsed since
the time of the assault and
the chances that plaintiff may have recovered to some extent.
The parties also agree that nine (9) months of
psychopharmacotheraphy at R500.00 per month is reasonable and fair.
In respect of the psychological counselling for
treatment of post-traumatic stress and depression, Dr Zabow expressed
the view that
plaintiff’s recovery was impressive and he seems
to be coping with what happened to him, he was however of the view
that
he would benefit from counselling. I am of the view that 12
sessions of psychological counselling for the treatment of
post-traumatic
stress and depression at R750.00 per session will be
sufficient.
In the result the following order will issue:
Judgment is entered in favour of the plaintiff.
The defendant is ordered to pay the plaintiff:
R170-000.00 in respect of damages for assault upon
him.
R13 500-00 in respect of future medical expenses
Less 10% contingencies R12 150-00
(iii) Interest in the amount of R172 150.00,
calculated
thereon at a rate of 15,5% per annum
tempore morae
until date of payment.
(iv) Costs of suite with interest calculated thereon
at 15,5%
per annum from 14 days from date of taxation until
payment, such cost to include qualifying expenses if any, of :
1. Dr Biyana
2. Dr Zabow
(v) Costs of an interpreter.
___________
N G
BESHE
JUDGE
OF THE HIGH COURT
APPEARANCES
For
Plaintiff ADV: P H Mouton
Instructed
by UNGERER STRUWIG HATTINGH POE
28
th
– 7
th
Avenue
Newton
Park
PORT
ELIZABETH
For
Defendant ADV: M Simoyi
Instructed
by THE STATE ATTORNEY
29 Western
Road
Central
PORT
ELIZABETH
Date Heard
29 to 31 August 2011
Date
Reserved 31 August 2011
Date
Delivered 29 September 2011