About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Port Elizabeth
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Port Elizabeth
>>
2011
>>
[2011] ZAECPEHC 56
|
|
Hobongwana v Minister of Safety and Security (870/09) [2011] ZAECPEHC 56 (13 December 2011)
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE HIGH COURT, PORT
ELIZABETH)
CASE NO: 870/09
Heard on: 24 & 25
November 2011
Delivered on: 13
December 2011
In the matter between:
XOLANI SIDWELL HOBONGWANA
…....................................................
PLAINTIFF
and
THE MINISTER OF SAFETY &
SECURITY
…......................................
DEFENDANT
JUDGMENT
Makaula J
:
[1] The plaintiff issued summons
against the defendant for a delictual claim arising from an unlawful
assault on him by the members
of the South African Police Service
while in custody at
Kirkwood Police Station
.
[2] The parties applied for an order
that the issue of merits be separated from
quantum
which I
granted.
[3] It is common cause that the
plaintiff was arrested and detained on 20 August 2005 for
drunkenness. Plaintiff was so drunk that
he could not even walk to
the police cells. During his incarceration, he was loaded on a
wheelbarrow and wheeled to the cells by
a policeman only identified
as
Klaasen
. In the cells
Klaasen
then tipped him from
the wheelbarrow and plaintiff fell on the cement floor. He tipped him
with such force that
Mr Xolani Sunshine Jonas
, who was also
detained for drunkenness, went to check what was happening. He
testified that the plaintiff fell hard on his head
hence there was a
loud bang which prompted him to go and investigate. He found the
plaintiff groaning in pains. He tried to lift
him up but in vain.
Plaintiff remained in that position until he
(Jonas)
was
released at about 5h30 the following day.
[4] The plaintiff stated that before
his arrest he had no pain in his neck area. During the day on 20
August 2005 he attended a
ceremony where he drank liquor. On
realising that he was drunk, he decided to go to his home to sleep.
On his way home he was arrested
and detained for drunkenness. He
passed out at the back of the police van. He did not recall what
followed thereafter until the
following morning. When he woke up, he
felt that his head and neck were very painful. He was released and
went to the taxi rank
where he boarded a taxi and went home. He took
pain tablets from his mother and slept the whole day. The following
morning he was
taken to
Dr Mncedisi Patrick Tsetswa
who
immediately took him, in his motor vehicle, to
Valley Hospital
for X-rays. Because of the seriousness of the injuries, he was then
transferred in an ambulance to
Livingstone Hospital
where he
was put on tractions because he had sustained a fracture in his neck.
[5]
Dr Mncedisi Patrick Tsetswa
confirmed the evidence of
the plaintiff in so far as it related to him. He examined the
plaintiff and discovered that he needed
urgent attention hence he
used his own vehicle to take him to hospital for X-rays. His
diagnosis was that he had an injury on his
spine. He referred him to
Livingstone Hospital
for
servical
spine X-rays
. Though the
quality of the X-rays was poor, he noticed a dislocation on
C2
and
C3
on the spine. He further
noticed a subluxation at
C5
on
C6
and decided that he should
be seen by an Orthopaedic Surgeon. He opined that the dislocation was
caused by extreme pressure/force
in the injured area of the neck. He
further confirmed that the injury could have been caused by being
tipped from a wheelbarrow
and more so if the plaintiff fell on his
head.
[6]
Dr Basil Louis McKenzie
who
is an orthopaedic surgeon testified that he examined the plaintiff on
1 July 2009 and concluded that the plaintiff sustained
a severe neck
injury associated with transient left-sided upper limb neuromuscular
deficit. The specific musculoskeletal injury
was a subluxation of
C5
on
C6
with unilateral locked
facets. He opined that the injury was consistent with a fall landing
with the head on the floor as a result
of being tipped off a
wheelbarrow. He further opined that was possible if the plaintiff was
drunk and not trying to resist the
fall.
[7]
Warrant Officer Swanepoel
testified that he was with
Klaasen
when
they arrested the plaintiff. He is the one who locked him up at the
back of the van. At that time the plaintiff was not injured
and could
move his head freely without showing any signs of injury or pains.
They took him to the charge office.
[8]
The evidence of
Warrant
officer Boniswa Majomani
is
not relevant for purposes hereof and I shall not deal with it.
[9] The plaintiff’s case was
closed and so did the defendant without calling witnesses.
[10]
Mr Mullins
,
counsel for the defendant submitted heads of argument wherein he
restated the law applicable to this matter. It is worth mentioning
that having stated the principles applicable he failed to apply them
to the facts at hand. Therefore, the heads filed by him are
not of
assistance to me.
[11]
The test for liability has been stated as follows by
Holmes
JA in
Kruger v
Coetzee.
1
“
For
purposes of liability
culpa
arises
if –
(a) a
diligens
paterfamilias
in the position of the
defendant -
would foresee the
reasonable possibility of his conduct injuring another in his person
or property and causing him patrimonial
loss; and
would take reasonable
steps to guard against such occurrence; and
(b) the defendant failed
to take such steps.”
[12]
The test applicable is an objective one.
2
The criterion adopted by our courts to
establish whether a person has acted carelessly and thus negligently
is the objective standard
of the reasonable person, the
bonus
paterfamilias.
3
[13]
The facts of this case clearly show that
Klaasen
by conveying the plaintiff who had
passed out and tipping him from a wheelbarrow was really careless in
the extreme. It is even
worse to do so
“
head
first.”
The
undisputed evidence of
Mr
Jonas
is to the effect that
when
Klaasen
tipped
the plaintiff from the wheelbarrow, the latter fell on his head on
the cement floor.
Mr Jonas
even demonstrated by lifting both his
hands shoulder high in a tipping manner. Surely by so doing,
Klaasen
should have foreseen the reasonable
possibility that the plaintiff could be injured by his
actions/conduct. The extent of injuries
is not relevant to the
enquiry as intimated by
Mr
Mullins
that
Klaasen
could not have foreseen
that the plaintiff would have sustained the injuries pleaded. What is
relevant is whether he should have
foreseen that his conduct would
result in the plaintiff sustaining an injury. It is mind boggling why
Klaasen
did
not solicit assistance from his fellow police officers to lift the
plaintiff and place him in the cell on the floor rather than
what he
did. That is the only reasonable thing he should have done in the
circumstances. It is worth observing further that the
defendant in
his plea pleaded that the plaintiff was not tipped from the
wheelbarrow but lifted up and placed on a mat which was
on the cement
floor. However, no evidence was led to prove this allegation. It is
clear that
Klaasen
was
negligent in his conduct hence an attempt was even made to suggest
that the plaintiff was placed on a mat.
[14] The evidence given by
Mr Jonas
was clear and reliable. He testified as to what actually happened as
he saw it. He never contradicted himself and never showed
any
biasness towards the defendant. I accept his evidence. Even the
plaintiff testified clearly and was honest enough to say he
did not
know how he got injured because he was too drunk to know what was
happening. He even testified that he was still drunk
when he woke up
in the morning before his release.
[15] The defendant owed the plaintiff
a duty of care whilst he was under arrest and that the unlawful
conduct of
Klaasen
caused the injuries plaintiff suffered.
Consequently, I make the following
order:
1. The defendant is liable for such
damages as the plaintiff may prove as a result of the injuries which
he sustained when he was
tipped from a wheelbarrow at Kirkwood Police
Station on 20 August 2005 and the
sequelae
thereof, those
injuries being:
1.1 A subluxation of C5 on C6 with
unilateral locked facets; and
1.2 Damage to the C6 nerve root on
the left with transient left-sided upper limb neuromuscular deficit;
The defendant is ordered to pay
the plaintiff’s taxed party and party costs in respect of the
merits, such costs to include
the reasonable and necessary
qualifying, travelling and appearance expenses of the following
expert witnesses:
2.1 Dr Mncedisi Patrick Tsetswa;
and
2.2 Dr Basil L MacKenzie.
3. The defendant shall be liable
for interest on the taxed costs at the rate of 15.5% per annum from
date of taxation to date of
payment.
_________________________
M MAKAULA
JUDGE OF THE HIGH COURT
Counsel for the Plaintiff: Adv Niekerk
Attorneys for the Plaintiff: Egon A
Oswald
33 Bird Street
PORT ELIZABETH
Counsel for the Defendant: Adv Mullins
Adv Beneke
Attorneys for the Defendant: The State
Attorney
29 Western Road
Central
PORT ELIZABETH
1
1966
(2) SA 428
(A) at 430 E-F
2
Minister
of Safety & Security v Van Duivenboden
2002
(6) SA 431
SCA
3
Law
of Delict: Neethling . Potgieter . Visser: Fifth Edition page
116-117 and the authorities cited therein