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[2012] ZAECPEHC 66
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Bam and Others v Minster of Correctional Services (58/2011) [2012] ZAECPEHC 66 (18 September 2012)
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION - PORT
ELIZABETH)
CASE NO: 58/2011
DATE HEARD: 28/02/2012
–
02/03/2012; 09/05/2012
DATE DELIVERED:
18/09/2012
In the matter between
SIVUYILE BOETANA BAM
....................................................................
1
ST
PLAINTIFF
SANDISO DLAKAVU
..............................................................................
2
ND
PLAINTIFF
SIVUYILE YAKO
.....................................................................................
3
RD
PLAINTIFF
ZOLA SKIEFILE
......................................................................................
4
TH
PLAINTIFF
and
THE MINISTER OF CORRECTIONAL
SERVICES
...................................
DEFENDANT
JUDGMENT
ROBERSON J:-
[1] The plaintiffs are all sentenced
offenders, serving their sentences at St. Alban’s Maximum
Correctional Centre, Port Elizabeth
(St. Alban’s). In this
action they claim damages arising from alleged assaults perpetrated
on them by correctional officials
(members) in the employ of the
defendant, while acting in the course and scope of their employment.
The events giving rise to the
claims occurred on 16 May 2010 at St.
Alban’s. St. Alban’s houses inmates who have been
sentenced to long terms of
imprisonment, for offences such as murder
and rape.
[2] The defendant admitted the
assaults on the first and third plaintiffs, and all that has to be
decided in respect of their claims
is the quantum of general damages.
The defendant admitted that the second and fourth plaintiffs suffered
certain injuries during
a fight which broke out between members and
the second and fourth plaintiffs. The defendant pleaded however that
the members had
used necessary force, as authorised by
s 32
of the
Correctional Services Act 111 of 1998
, in order to defend themselves
and to subdue the second and fourth plaintiffs, and that at all
material times the members acted
in self defence and under severe
provocation.
[3] The parties agreed that the first
and third plaintiffs’ claims were to be adjudicated upon by way
of a stated case. Besides
setting out the manner of the assaults, the
injuries inflicted and their
sequelae
, the stated case
contained a brief reference to the events leading up to the assaults.
It was stated that the members who assaulted
the first plaintiff
believed that he was one of the instigators of a perceived hostage
incident which occurred earlier on 16 May
2010. It was common cause
that this “perceived hostage incident” referred to the
events giving rise to the second and
fourth plaintiffs’ claims.
QUANTUM FIRST PLAINTIFF
[4] The first plaintiff is serving a
fifteen year sentence for murder. He was born in 1984 and is
unmarried. Members assaulted him
with batons and he sustained the
following injuries: bruising and swelling of his arms; bruising to
his abdomen and back; a haematoma
of the head; and a severe fracture
of the knee. He initially suffered severe pain and presently suffers
moderate pain in his back
and knee, which is worse in cold weather.
He received the following treatment: a reduction of the fracture of
the knee, including
stabilisation of the knee using wires; the
application of a plaster cast; surgery to remove the internal
fixatives; hospitalisation
for eight days; and pain medication. He
has restriction of movement of the knee, a left-sided limp, and
patello-femoral osteoarthritis.
The assault caused him shock, trauma,
humiliation and loss of dignity.
[5] I was referred to several cases by
both Counsel, involving motor collision injuries and assaults. Awards
in cases involving
similar injuries serve as a guide and provide some
context in which to decide on an appropriate award. The most serious
injury
the first plaintiff sustained was that to his knee. I have had
regard to the following cases involving knee injuries:
Rabe v Road
Accident Fund
2011 (6E7) QOD 13 (GNP),
Aeschliman v Road
Accident Fund
2010 (6E7) QOD 1 (ECP),
Pitt v Pitt
1971
(2E7) QOD 268 (C),
Bosch v Parity Insurance Co. Ltd
1964 (2)
SA 449
(W), and
Visser v Standard General Insurance Co. Ltd
1952 (1E7) QOD 456 (T). I have considered the awards in those cases,
the degrees of severity of the injuries and their
sequelae
in
those cases, and the other injuries suffered by the first plaintiff.
I have also taken into account the humiliation and loss
of dignity
the first plaintiff suffered at the hands of persons entrusted with
his welfare. In all the circumstances I am of the
view that an award
of R180 000.00 is a suitable award for general damages. The first
plaintiff’s future medical expenses
were agreed in the sum of
R128 556.00.
QUANTUM THIRD PLAINTIFF
[6] The third plaintiff was assaulted
with batons by members of the defendant and sustained the following
injuries:
A 2cm laceration to his right hand
A 1 cm laceration to the right foot
A 2 cm laceration to the head
Painful ribs
Bruising of both arms
He suffered severe pain, shock,
trauma, humiliation and loss of dignity. He was treated at hospital
and the wounds on his head,
foot and hand were stitched. He also
received pain medication.
[7] I have had regard to the awards
made in the following cases involving assaults to which I was
referred:
Peterson v Minister of Safety and Security
[2009]
JOL 24495
(ECG),
April v Minister of Safety and Security
[2008] 3 All SA 270
(SE), and
Nodongwe v Minister of Safety and
Security
[2007] JOL 20373
(SE). I am of the view that a suitable
award for general damages in the present case is R75 000.00.
[8] It was submitted on behalf of the
defendant that costs should be awarded on the Magistrate’s
Court scale if the award
was less than R100 000.00. In the
circumstances, namely a revenge attack on a person in custody by the
very persons who were entrusted
with his security, I am of the view
that the third plaintiff was justified in approaching the High Court
to vindicate his right
to dignity and bodily security. In addition,
all the plaintiffs have sued in a single action and some of the first
and third plaintiffs’
costs will overlap.
SECOND AND FOURTH PLAINTIFF’S
CLAIMS
[9] In this portion of the judgment I
shall refer to the second plaintiff as Dlakavu and to the fourth
plaintiff as Skefile. The
defendant admitted that they had suffered
injuries and received treatment as follows:
9.1 Dlakavu
Bruising, swelling and pain to his
left arm and hand;
Bruising to his abdomen, particularly
on the left side of his back;
Three lacerations to the back of his
head, two of 1cm and one of 4cm, which required stitches;
He was treated at St. Alban’s
Maximum and Livingstone hospitals and received tablets for pain and
his lacerations were stitched.
9.2 Skefile
A painful left leg
Lineaer bruises on his back
A bruised and painful right small
finger
A bruised and painful left upper arm
A 6cm laceration to his head which
required stitches
He was treated at St. Alban’s
Maximum hospital and received tablets for pain and his laceration was
stitched.
[10] Dlakavu and Skefile both alleged
in their particulars of claim that they had been assaulted by members
Tshaka, Hans, Ndabeni,
and April.
[11] There were conflicting versions
of the events leading up to and surrounding the infliction of force
by the members on Dlakavu
and Skefile. It is necessary first to find
which version is more probable. In the event that the defendant’s
version is found
to be more probable, it will be necessary to
determine whether the infliction of the injuries was justified, or
whether there was
provocation justifying a reduction of damages.
Retaliation on the part of the members was also raised in argument.
[12] It was agreed that the defendant
would begin.
EVIDENCE FOR THE DEFENDANT
[13] Lindile April testified that he
had been a correctional official for twenty four years and had been
stationed at St. Alban’s
since 2001. On 16 May 2010 he and
another member, Mrs.Roxo, were in the Isiqalo unit office at St.
Alban’s, when he heard
a noise from the passage leading to the
office. Skefile was brought into the office by members Tshaka and
Hans. They were shouting
at one another and the members were pushing
Skefile, who was resisting. After they entered he closed the door,
because when it
was opened it struck his leg. He asked what was
happening but received no response. The altercation continued in the
office.
[14] Dlakavu then entered the office,
with another inmate, shouting at Tshaka and Hans, asking what they
were doing to his fellow
man and swearing at them. Tshaka managed to
push the other inmate away. Tshaka and Hans were occupied with
Skefile, and Dlakavu
took Hans’ baton from him and waved it
around. April did not know if Dlakavu was trying to defend himself
but at that stage
Hans had not done anything to him. Dlakavu hit Hans
and another member on their hands with the baton, and also hit Hans
on his
back. Within a minute after Dlakavu had entered, the door to
the office was kicked, and Tshaka and Ndabeni, who had at some stage
also entered the office, held the door closed. Inmates outside the
door were pushing and kicking the door, as well as hitting it
with an
object, and were shouting that Tshaka should open the door and that
they wanted him to come out. Judging from the noise
there were many
inmates outside. April assisted in keeping the door closed and
Ndabeni went to the assistance of Hans, who was
struggling with
Dlakavu for possession of the baton.
[15] Skefile came to Dlakavu’s
aid, using his fists. Hans recovered possession of his baton and he
and Ndabeni struck Dlakavu
and Skefile with their batons, while
Dlakavu and Skefile used their fists. Mrs. Roxo went into the toilet
in the office and called
for help. Hans and Ndabeni continued to use
their batons on Dlakavu and Skefile until the arrival of other
members at the office.
April did not take part in the fight. During
this time he realised that the situation was serious (he said “things
were bad,
very bad to me”) and was wondering what would happen
if the inmates managed to get into the office, from which there was
no way of escape. When the fighting ceased, he saw blood on Dlakavu
and Skefile and on the members’ clothes, but did not notice
any
injuries on Tshaka, Hans or Ndabeni.
[16] His general response when the
contrary versions of Dlakavu and Skefile were put to him was to say
he had no knowledge, or had
no answer. He specifically denied that he
had struck Dlakavu with a baton, that when Dlakavu entered Skefile
was lying bleeding
on the floor, and that Skefile had managed to
crawl out of the office before the other members arrived and had been
brought back
into the office.
[17] In his written statement made on
16 May 2010 for the internal investigation, he said that when Tshaka
and Hans entered the
office with Skefile, they were arguing, and
Skefile was swearing at them. When asked in cross-examination why he
mentioned an argument
as opposed to an altercation (presumably
meaning a physical altercation), he said he was unable to answer.
When it was then put
to him that in fact there was only an argument
and not a physical exchange he said he was unable to answer and that
he saw what
happened the way he saw it. Later during
cross-examination he said there was no physical fighting and just an
exchange of words,
but later still said that they were fighting
verbally and grabbing one another as if they were fighting. When it
was put to him
that Dlakavu had asked why the members were assaulting
Skefile, he said he did not know if that happened. However in his
written
statement he said “the inmate asked the members why
they assault that inmate”. He agreed that was correct.
[18] Thandikosi Tshaka testified that
he has been in the employ of the Department of Correctional Services
for seven years, and
stationed at St. Alban’s since 2008. On 16
May 2010 he and Hans were maintaining security while the inmates were
having lunch
in the dining hall. The inmates themselves dished out
the lunch. He noticed a number of inmates in the courtyard who were
not going
into the dining hall and told them to do so. Some of the
inmates heeded his order but a few remained in the courtyard. One of
them
was Skefile, with whom he argued about his failure to go to the
dining hall. Skefile swore at him and Hans, so he decided to call
Skefile to the Isiqalo office where he intended to charge him with
disobeying an order and swearing at him. Skefile accompanied
him and
Hans to the office without resistance, but at the door of the office
resisted. Tshaka took hold of him and Skefile tried
to break loose,
but was pulled into the office. Tshaka thought Hans closed the door
after them. He did not hear April asking what
was going on. In the
office he looked for Skefile’s file and a charge sheet, and
while he was doing so, Ndabeni entered the
office. At this time
Skefile was not resisting and was listening to them. Tshaka then
heard the door of the office being kicked
and he and other members
tried to close the door, but Dlakavu managed to get into the office.
The third plaintiff, Yako, was outside
the office. One of the
inmates, he did not remember which one, but later remembered that it
was Dlakavu, grabbed Hans’ baton
from his waist and hit Hans on
the forehead with it. He did not first wave the baton around. Ndabeni
was struck with the baton
on his arm. The inmates were very
aggressive and the fight then started. It had not been the members’
intention to fight,
but Dlakavu had caused the fight. Tshaka and
Ndabeni used batons, while Hans, whose baton had been taken, went to
hold the door
closed with April, to prevent the inmates outside from
getting in to the office. Hans’ baton was recovered from
Dlakavu.
Dlakavu and Skefile fought back, and because of the
dangerous situation created by the inmates outside trying to get in,
the members
continued to fight with them until they were on the
ground. They needed to achieve this result in order to be able to
deal with
the inmates outside, in case they managed to break into the
office. After Dlakavu and Skefile were down, they all held the door
closed. Tshaka could not say how many inmates were outside, but from
the noise they were making it sounded like many. They were
calling
his name and saying that they wanted to kill him. During the fight,
Roxo called from the toilet for help and eventually
other members
came to their rescue.
[19] Tshaka was mentally traumatised
by the incident and was counselled by a psychologist. He sustained
injuries to his back, thumb
and ankle, the latter injury caused when
he was pushed against a steel cupboard in the office. The doctor was
not available that
day so he took pain medication, and went to the
doctor the following day. The doctor gave him tablets. He claimed
compensation
from the Department of Correctional Services for
psychological injuries sustained while on duty. He, Hans and Ndabeni
laid criminal
charges with the police. Tshaka has since been
transferred from St. Alban’s and did not wish his new station
to be disclosed.
[20] In his written statement made to
the police on 17 May 2010, he said that other inmates in the
courtyard told him they had eaten
and he told them to go to their
cells. They complied with his order but Skefile argued with him and
swore at him. Although he had
said when he testified that when he
argued with Skefile there were a few inmates in the courtyard, he
said that those inmates had
not argued with him and had left.
[21] In his written statement given
for the internal investigation and in his written statement to the
police, he did not mention
that Skefile had resisted at the office
door. His explanation for this omission in his statements was that he
was in a state of
confusion and shock.
[22] He also said in his police
statement that the other inmates had assumed that the members were
attacking Skefile and the door
was kicked and Dlakavu and another
inmate entered. When asked why he said they assumed Skefile was being
attacked, he said that
never before, when they called an inmate into
the office, had other inmates come to defend him or fight for him.
[23] He was asked in cross-examination
about the procedures to be followed when an inmate assaults a member.
He agreed that there
was a disciplinary procedure to be followed but
at the time of an assault there would not be an opportunity to write
a report,
only some time afterwards. This line of questioning related
to the fact that his written statement for the internal
investigation,
made on 16 May 2010, suggested that Dlakavu was the
aggressor and not both Dlakavu and Skefile. Tshaka’s response
was that
had Dlakavu not entered the office, there would not have
been a fight, but he repeated that both Skefile and Dlakavu had
fought.
[24] He denied in cross-examination
that he had ordered Skefile to go to his cell when they met in the
courtyard, or that he swore
at him and Skefile told him he was tired
of his insults. He said he only learned Skefile’s name that
day. He could not remember
if he had told Skefile in the office that
he was stubborn and a troublemaker. He denied that he and Hans had
slapped Skefile in
the office, and that he, Hans and Ndabeni had
assaulted Skefile with batons prior to Dlakavu’s entrance. He
denied that Dlakavu
had apologised for Skefile and had told them to
charge him. He did not hear Dlakavu ask why they were assaulting
Skefile. He denied
that Skefile had managed to get out of the office.
[25] The third and last witness for
the defendant was Nyamego Mnaymese, who is a court interpreter and
was the interpreter in the
trial. His testimony concerned two letters
allegedly written by Dlakavu. The admissibility of these letters was
in issue, and I
shall deal later in this judgment with their
admissibility. The letters were written in what Mnaymese described as
colloquial Xhosa,
and were translated by him into English. The
English translations were for the most part unintelligible and there
is no point in
repeating them in this judgment. There were portions
of the translated letters on which the defendant sought to rely.
These portions
were as follows:
“
I
have again done a hostage myself and Zibha on Sunday we went to
forcefully take second (illegible) from Mankwaleni. So now I have
two
cases. All the boys/jail comrades are saluting.”
“
I
have again done a hostage now I am Madakeni.”
Mr. Mnaymese said that the translation
was complicated because the Xhosa did not make sense and when
translated into English did
not make sense.
EVIDENCE FOR THE SECOND AND FOURTH
PLAINTIFFS
[26] Skefile, who is sometimes called
Zibha, testified that on 16 May 2010, he was on his way to the dining
hall at St. Albans’s.
He stopped in the courtyard to ask for
his food bowl (referred to as a “scoff tin”) to be thrown
to him from a cell
on the upper floor. After he caught the bowl, he
was approached by Tshaka and Hans who would have seen the food bowl
in his hands.
Tshaka insulted him by referring to him as a young boy
and swearing at him, and told him to go to the cells. He did not go
to the
cells, and told Tshaka not to insult him, and that he had not
eaten and was on his way to the dining hall. Hans also insulted him
and told him to go to the cells. Neither of them responded when he
told them he had not eaten and instead said he was troublesome
and
stubborn, and that he should go with them to the office. He thought
they might be taking him to the office to find out from
a cleaner
whether or not he had eaten.
[27] He walked behind Tshaka and Hans
to the office, and did not resist when they reached the office. April
and Roxo were seated
in the office and the door was left open. He did
not see Tshaka looking for a charge sheet in the office. Tshaka said
to him that
he had noticed for a long time that he was troublesome
and Skefile responded by asking what he meant. At this, Tshaka seemed
annoyed
and he and Hans slapped him several times on his face. He
tried to approach Roxo for help but Hans prevented him from getting
near
her. Ndabeni then came in and also referred to him as a young
boy, and the three of them, Tshaka, Hans, and Ndabeni, drew their
batons and struck him all over his body, one blow striking his head,
while he had his back to the wall and was trying to protect
himself.
He did not fight back. They ceased hitting him after he had fallen
down. He had blood on his face and on his clothes.
All this time
April and Roxo remained seated and did nothing.
[28] While he was being beaten,
Dlakavu came into the office. Dlakavu apologised on his behalf and
told the members that they should
charge Skefile if he had done
something wrong. Their response was to tell Dlakavu not to tell them
how to do their work. Tshaka,
Hans and Ndabeni then left him and
approached Dlakavu and hit him with their batons. Dlakavu did not get
hold of Hans’ baton.
The members were not watching Skefile at
this time and he got up and ran out of the office. Under
cross-examination he said initially
that he did not crawl out of the
office (as had been put to April), but later said that he crawled to
the door, and then jumped
up and ran. The members tried to close the
door but he managed to get out and fell outside the door. The door
was then closed.
He was picked up by other inmates, and he told them
that he had been assaulted and that Dlakavu was in the office being
assaulted.
There were many inmates and they tried to open the door by
pushing, bumping and kicking it. The inmates were making a noise but
he did not hear them calling for Tshaka or saying that they wanted to
kill Tshaka. Other members arrived and put these inmates
in their
cells. Skefile went back into the office with member Zonyani and saw
Dlakavu sitting there, with blood on his head and
clothes. Skefile
reported to member Konono that they had been assaulted by members. He
and Dlakavu were then taken to the prison
hospital.
[29] During cross-examination he was
referred to two written statements he had made. The first was made on
the 16 May 2010, for
the purpose of the internal investigation. In
that statement he said,
inter alia
, that on that day he met
Tshaka while he was waiting for his scoff tin and that Tshaka had
told him to go and get his meal. Skefile
said the investigator was in
a hurry to take the statement and that when he made the statement he
had not yet seen the doctor and
was confused. In his written
statement made the next day, when he was still not feeling well, he
said he and Dlakavu had been assaulted
by Tshaka, Hans, Ndabeni and
April. When this portion of his statement was put to him, his
response was to apologise to April and
say that April had never got
up from where he was seated. In the second statement he also
mentioned that Ndabeni had slapped him
when he entered the office. He
said that all that he remembered was that Ndabeni had entered the
office and hit him with a baton.
[30] Dlakavu testified that on 16 May
2010 he was in the passage near the Isiqalo office, having come from
the dining hall. He was
in the company of member Badula. He saw
Skefile being assaulted with batons inside the office by Tshaka, Hans
and Ndabeni, and
asked Badula to intervene. Badula did not want to
get involved and Dlakavu decided to intervene himself. He was not
afraid that
he would be assaulted because he had done nothing wrong.
He entered the office alone and saw Skefile lying on the ground with
blood
on him. April and Roxo were in the office and did not react to
his entrance. He asked what Skefile had done to warrant the assault
and said that it would be better to charge him if he had done
something wrong. The members’ response was to tell him that
he
could not tell them what to do. Ndabeni then hit him on the head with
a baton, and Tshaka, Hans and April joined in, all of
them hitting
him with batons. He did not fight back and at some point he lost
consciousness. When he regained consciousness members
Minnaar, Konono
and others were in the office, and he saw Skefile coming into the
office with another inmate. He and Skefile were
then taken to the
prison hospital. He knew nothing about a crowd of inmates who were
trying to get into the office. He was never
charged internally for
attacking the members, nor was his prisoner status lowered.
[31] He denied writing the letters
which had been translated from Xhosa into English, although his name
was written at the end of
each of them. He did not know who would
have written letters in his name, and he did not know the meaning of
some of the contents
which were put to him. He did not know of any
hostage situation which had taken place at the prison. He corrected
the translated
portion referred to in paragraph [25] above by saying
that the word Sunday should have been Crown, and agreed that Yako was
known
as Crown.
[32] In his written statement made on
16 May 2010, he said he was standing with Badula and inmate Yako when
he saw Tshaka and Hans
coming from the dining hall to the office, and
they were assaulting Skefile, who was bleeding. Tshaka, Hans, and
Ndabeni then entered
the office with Skefile, at which time he
(Dlakavu) entered the office, told them he had witnessed the assault
on Skefile, and
he was then assaulted. Roxo called for help when she
heard inmates outside the office complaining. Yako entered the office
and
was also assaulted and ran away. When these contents were put to
him, he said that he had never stood with Yako, that he had not
seen
Tshaka and Hans coming from the dining hall and entering the office,
and that he had only seen Skefile being assaulted in
the office. He
denied that Roxo had called for help because she heard inmates
outside the office and he never saw Yako in the office
that day. His
explanation for the differences between his evidence and the
statement seemed to be that he was in pain and receiving
treatment.
ADMISSIBILITY OF CERTAIN EVIDENCE
[33] The plaintiffs submitted that
certain evidence should be disallowed.
Letters allegedly written by Dlakavu
[34] Dlakavu did not admit that he was
the author of the letters which were translated into English. There
was no evidence on behalf
of the defendant to prove that the letters
were written by Dlakavu. The letters were therefore inadmissible.
Injuries of Hans and Ndabeni
[35] Hans and Ndabeni did not testify.
Tshaka testified that they had all gone for psychological counselling
and that they had met
at the psychologist’s rooms. This was in
my view insufficient proof of psychological injuries to Hans and
Ndabeni. Tshaka
also said that Hans and Ndabeni were treated by a
psychiatrist, because they told him so telephonically. This evidence
was correctly
objected to as hearsay.
Evidence of propensity and standing
[36] The defendant sought to admit the
judgments of the High Court in which Dlakavu and Skefile were
convicted and sentenced, for
two purposes: firstly to show a
propensity for aggression and secondly that the judgments would
impact on quantum. Dlakavu and
Skefile were convicted of violent
crimes and are serving life sentences. I am of the view that the
judgments are inadmissible for
the purpose of proving that Dlakavu
and Skefile were the aggressors that day. In my view the degree of
similarity between the circumstances
of the present incident and the
circumstances in which the crimes were committed, is slight, and the
probative value of the judgments
is therefore similarly slight. The
crimes were committed by the plaintiffs while they were free persons
in the community, unrestrained
in inflicting violence on helpless
victims, and not in confinement, subject to ever present authority.
If for example there was
evidence that while inmates they had
previously committed unprovoked assaults on members or other inmates,
such evidence would
have more probative value. It is not necessarily
so that all persons convicted of violent crimes commit or instigate
violent acts
while in prison. For reasons which will become apparent,
it is not necessary for me to decide on the admissibility of the
judgments
with regard to quantum.
DISCUSSION
[37] There were mutually destructive
versions of the events leading up to and during the infliction of the
injuries on Dlakavu and
Skefile. The correct approach in these
circumstances is that which was stated in
National Employers’
General Insurance v Jagers
1984 (4) SA 437
at 440D-G as follows:
“
It
seems to me, with respect, that in any civil case, as in any criminal
case, the
onus
can ordinarily only be discharged by adducing credible evidence to
support the case of the party on whom the
onus
rests. In a civil case the
onus
is obviously not as heavy as it is in a criminal case, but
nevertheless where the
onus
rests on the plaintiff as in the present case, and where there are
two mutually destructive stories, he can only succeed if he
satisfies
the Court on a preponderance of probabilities that his version is
true and accurate and therefore acceptable, and that
the other
version advanced by the defendant is therefore false or mistaken and
falls to be rejected. In deciding whether that evidence
is true or
not the Court will weigh up and test the plaintiff’s
allegations against the general probabilities. The estimate
of the
credibility of a witness will therefore be inextricably bound up with
a consideration of the probabilities of the case and,
if the balance
of probabilities favours the plaintiff, then the Court will accept
his version as being probably true. If however
the probabilities are
evenly balanced in the sense that they do not favour the plaintiff’s
case any more that they do the
defendant’s, the plaintiff can
only succeed if the Court nevertheless believes him and is satisfied
that his evidence is
true and that the defendant’s version is
false.”
[38] April was a markedly reluctant,
obstructive, argumentative, and evasive witness during
cross-examination. Even during his evidence
in chief he seemed
occasionally reluctant to answer a question. One got the impression
that he did not want to be associated at
all with the events in the
Isiqalo office on 16 May 2012, and was not at all comfortable with
having to testify. On a number of
occasions he simply said he had no
knowledge of something specific which was put to him, when he was
clearly in a position to have
known. On at least two occasions he had
no answer when he must have been able to provide an answer. He was
present throughout the
events until help arrived, and the office was
admittedly small. He contradicted himself with regard to whether or
not there was
a physical fight between Tshaka and Hans and Skefile
when they entered the office. He initially said that he did not know
if Dlakavu
had asked why Skefile was being assaulted, whereas he
agreed he had said so in his written statement.
[39] Tshaka was in my view a
satisfactory witness. He answered questions directly and did not
attempt to play down his role in the
infliction of injuries on
Dlakavu and Skefile. He frankly admitted that they were beaten until
they were down. He did not try to
suggest that Skefile was aggressive
prior to the entrance of Dlakavu, and said that Dlakavu was the cause
of what happened. When
he spoke about how serious the situation had
been, he genuinely communicated the critical atmosphere in the
office, as well as
his fear. It was submitted that he was evasive at
times, for example when he was asked about a disciplinary procedure
with regard
to Skefile, and the sequence of events after Dlakavu
entered the office. I do not agree that these aspects of his evidence
demonstrated
evasiveness. He agreed that there were disciplinary
procedures and he did make a statement for the investigation into the
incident.
He also laid a criminal charge. He was merely uncertain
about precisely who had held the door closed after Dlakavu entered.
If
one considers that Dlakavu’s entrance was unexpected and
thereafter there was a crowd of inmates trying to get in, it is
understandable that he could not remember who held the door closed.
He never tried to suggest that he was not involved in the physical
fight with Dlakavu and Skefile.
[40] It was submitted that his
explanation for the portion of his written statement where he said
the other inmates assumed that
Skefile was being assaulted was
improbable. I am not of the view that his explanation for this
statement supported a finding that
Skefile was assaulted prior to the
entrance of Dlakavu. There must have been a reason why Dlakavu and
Yako were at the door and
Tshaka merely gave his theory. At worst for
Tshaka, he might have said this in his statement because Dlakavu had
asked why Skefile
was being assaulted, but that does not mean he
admitted that Skefile was being assaulted. He did not deny that
Dlakavu had asked
why Skefile was being assaulted, he said that he
did not hear Dlakavu ask.
[41] Skefile was a fairly consistent
witness who maintained his version under cross- examination. He
unhesitatingly agreed that
April had not assaulted him and had
remained seated, and offered his apology. Dlakavu was mostly
consistent, but when questioned
about the letters was evasive and
argumentative.
[42] There were contradictions between
April and Tshaka but in my view they were not material, for example
who closed the door after
Tshaka and Hans entered with Skefile,
whether or not April intervened, whether or not the altercation
between them continued after
they entered, what happened after
Dlakavu entered, what happened at the door while the inmates were
outside, and at what stage
Tshaka, Hans and Ndabeni ceased beating
Dlakavu and Skefile. Tshaka and April both said that as Tshaka and
Hans entered with Skefile,
there was some sort of physical struggle.
Dlakavu must have entered soon afterwards and his entrance would have
been significant
in the circumstances. It was therefore
understandable that memories would differ as to what precisely was
going on between Tshaka,
Hans and Skefile after they entered the
office. Once there was violence in the office, and there was a crowd
of inmates outside
trying to force the door open, it is not
surprising that in this frightening situation memories would differ.
What is important
is that Tshaka and April did not try to play down
the beating of Dlakavu and Skefile, and it was not in dispute that
inmates outside
were trying to force the door open, and the members
would have had to try to prevent them from doing so.
[43] One would have thought that had
Skefile resisted at the door to the office, Tshaka would have
mentioned this in his statements.
On the other hand, he was clear
that Skefile was not violent in the office until the fight started
after Dlakavu’s arrival,
and said that if it had not been for
Dlakavu, the fight would not have happened. Even taking into account
April’s unsatisfactory
evidence on this aspect, I do not think
the omission in Tshaka’s statements carries significant weight.
[44] On the other hand, I am of the
view that the deviations from their written statements by Dlakavu and
Skefile were material
and significant, and play an important role in
deciding the overall probabilities of the respective versions.
Although both of
them claimed to be distracted by their injuries when
they made the statements, the contents of the statements were fairly
explicit
concerning the sequence of events and who did what to whom,
and in some respects were in line with the evidence of Tshaka and
April.
[45] The starting point was what
happened in the courtyard between Tshaka, Hans and Skefile. Tshaka’s
evidence was that he
was maintaining security while the inmates were
being served their lunch. Although he said that the inmates were
dishing out the
food, he twice used the expression “we were
serving lunch” which implies that part of his duties was to
ensure that
the inmates went to the dining hall and had their lunch.
It is therefore more probable that his altercation with Skefile in
the
courtyard followed his order that Skefile should go to the dining
hall, rather than an order that Skefile should go to his cell.
Skefile himself said that he had not yet eaten. This probability is
significantly strengthened by Skefile’s written statement
in
which he said that Tshaka had instructed him to go and get his meal.
It is improbable that Skefile made a mistake in his statement
in this
regard. His claimed reason for making a mistake, namely that he was
confused, was most unconvincing. In his written statement
the next
day, he made no mention of being told to go to his cell. He did not
try to suggest that his statements had been wrongly
recorded. The
inference to be drawn from these aspects of both his written
statements is that his evidence that Tshaka ordered
him to go to his
cell and did not listen to him when he said he had not yet eaten, was
fabricated, and an attempt to suggest that
Tshaka did not care if he
had not eaten. Tshaka’s evidence that Skefile did not heed his
order to go to the dining hall,
that an argument ensued, and that he
decided to take him to the office to charge him, must therefore be
accepted. On his own evidence
Skefile disobeyed Tshaka, albeit
following a different order, and this too supports Tshaka’s
version of a decision to charge
Skefile.
[46] Tshaka denied that Skefile was
assaulted in the office prior to the arrival of Dlakavu. He in fact
said that Skefile was not
resisting in the office until the arrival
of Dlakavu. In his written statement and in his particulars of claim
Skefile included
April as one of the members who assaulted him, but
agreed that April had not assaulted him and that April had remained
seated.
This aspect of his evidence not only supports that of April,
but adversely affects the reliability of Skefile’s evidence of
what happened to him prior to the arrival of Dlakavu. Further, if he
was not resisting in the office, it is improbable that Tshaka,
Hans,
and later Ndabeni, would set upon him with batons. Tshaka clearly
blamed Dlakavu for starting the fight, and this supports
his evidence
that his intention was to charge Skefile, and not to assault him.
[47] Dlakavu’s evidence of an
assault on Skefile prior to his arrival was flawed. He clearly stated
in his written statement
that he saw Skefile being assaulted by
Tshaka and Hans on their way from the dining hall
before
they
entered the office, and that he followed them into the office. His
explanation for this aspect of his written statement, namely
that he
was in pain, was also unconvincing. He too did not suggest that his
statement had been wrongly recorded. Although when
his statement was
put to him he insisted that he had only seen Skefile being assaulted
in the office, the material differences
between his evidence and the
statement adversely affected his credibility.
[48] In the result it is more probable
that Skefile was not assaulted in the office prior to the arrival of
Dlakavu.
[49] Dlakavu claimed to have entered
the office as a kind of peaceful mediator. In my view this was
improbable. If Skefile was being
beaten with batons by three members,
it is unlikely Dlakavu would have entered and subjected himself to
the risk of assault, and
unlikely that he would have believed that
the members would have ceased their assault at his intervention. It
is more probable
that he entered the office as an aggressor,
particularly as according to both April and Tshaka Dlakavu was not
alone when he entered
the office (April said a second inmate was
pushed away by Tshaka and Tshaka said that Yako was outside the door)
and not long afterwards
there was a crowd of angry inmates outside
trying to force open the door. As already mentioned, there was no
dispute that there
was such a crowd of inmates. This was Skefile’s
evidence and was mentioned by Dlakavu in his written statement (he
said that
Roxo had heard the inmates “complaining”
outside the office). In my view it is highly probable that Dlakavu
did not
act as a lone peacemaker, but was associated with an
aggressive movement against members in the office, Tshaka in
particular. Tshaka’s
evidence about Yako being outside the door
when Dlakavu managed to get inside the office, was supported to some
extent by the portion
in Dlakavu’s written statement where he
said that after he had been assaulted, Yako had entered the office,
was assaulted,
and had run away. Dlakavu nevertheless insisted that
he had not seen Yako in the office that day.
[50] In this aggressive atmosphere it
is probable that Dlakavu did get hold of Hans’ baton and
assault him and Ndabeni, and
that both Dlakavu and Skefile were
aggressive, particularly as they had the backing of the crowd at the
door. Dlakavu said he knew
nothing about the crowd of inmates trying
to get in, but mentioned in his written statement that the inmates
were “complaining”
outside the office. It is unlikely he
would have said this in his statement if he did not know there was a
crowd of inmates at
the door. His evidence about losing consciousness
must therefore be viewed with scepticism.
[51] While I have excluded the
evidence of injuries to Hans and Ndabeni, Tshaka testified about his
own injuries and the treatment
he had received, both physical and
psychological. It is unlikely he would have gone to the doctor if he
had not been injured, and
unlikely he would have been treated by a
psychologist if he had not been traumatised. It is unlikely that his
application for compensation
for psychological injuries sustained on
duty was a ploy to defect culpability. If he was injured physically
and psychologically,
it is unlikely these injuries would have been
suffered if Dlakavu and Skefile had merely been passive victims.
[52] It follows from my view of the
probabilities that I must accept the version of the defendant in
preference to that of Dlakavu
and Skefile. Overall the defendant’s
version flowed more logically and was more consistent with the common
cause facts and
sequence of events, namely that Skefile disobeyed an
order and was taken to the office, that Dlakavu entered, that there
was a
crowd of inmates trying to force open the door of the office,
and that Skefile and Dlakavu were injured. Both Skefile’s and
Dlakavu’s versions flowed from flawed premises (the material
deviations from their statements) and in my view this aspect
of their
versions tainted their versions throughout. I therefore find that
Skefile was not assaulted by the members prior to the
arrival of
Dlakavu; that Dlakavu entered the Isiqalo office, grabbed Hans’
baton and assaulted him and Ndabeni; that Skefile
joined in the fray
with his fists; that Tshaka, Hans, and Ndabeni struck them with
batons in order to ward off the attack, until
they were no longer
fighting back; and that during this time there was a crowd of
aggressive inmates trying to break open the door,
uttering threats
against Tshaka.
SELF DEFENCE
[53] The attack by Dlakavu and Skefile
was unlawful and the members were entitled to defend themselves and
the other members in
the office. Was the force they used reasonable
in the circumstances? It is apposite to refer to the following
passage in the judgment
in
Ntanjana v Vorster and Minister of
Justice
1950 (4) 398 (C) at 406A-D (some authorities omitted):
"The
very objectivity of the test, however, demands that when the Court
comes to decide whether there was a necessity to act
in self-defence
it must place itself in the position of the person claiming to have
acted in self-defence and consider all the
surrounding factors
operating on his mind at the time he acted. The Court must be careful
to avoid the role of the armchair critic
wise after the event,
weighing the matter in the secluded security of the Court-room.
…………………..Furthermore,
in judging the matter it must be ever present to the mind of the
judge that, at any rate in the particular circumstances of this
case,
the person claiming to act in self-defence does so in an emergency,
the creation of which is the work of the person unlawfully
attacking.
The self-defender is accordingly entitled to have extended to him
that degree of indulgence usually accorded by the
law when judging
the conduct of a person acting in a situation of imminent peril. “Men
faced in moments of crisis with a
choice of alternatives are not to
be judged as if they had had both time and opportunity to weigh the
pros and cons”
per
INNES,
J.A., in
Union
Government v. Buur
(1914,
A.D. 273
at
p. 286)."
[54] With regard to the need to avoid
the role of the armchair critic, a telling portion of Tshaka’s
evidence is worth quoting:
“
Milady,
it was very, very, very bad. The situation was very, very bad at that
time. There was no time of thinking as to what could
happen. It was
very bad. The only thing that we were thinking about was our lives.”
[55] It is very important to remember
the atmosphere in the small office, from which there was no escape.
There were five members
in the office, one of whom was a woman, and
there was a crowd of aggressive inmates at the door, uttering threats
against Tshaka.
If the inmates had managed to force open the door, it
is highly probable that serious harm to the members, who were
outnumbered,
would have resulted. In my view in those circumstances
it was reasonable to use the force which was used against Dlakavu and
Skefile.
It was necessary to use such force to ensure that they were
no longer a threat so that the members could use all their efforts to
prevent the crowd outside from getting in, and to defend themselves
and the other members in case they did get in. Dlakavu’s
and
Skefile’s injuries, while not slight, were not so severe that
they suffered long term effects. They were temporarily
incapacitated.
In my view, if they had not been subdued, they would probably have
continued to be aggressive, supported as they
were by the aggressive
inmates outside.
[56] It follows that in my view the
force used by the members was in all the circumstances commensurate
with the attack, and the
defence of self-defence should succeed.
ORDERS
[57] First plaintiff
The defendant is ordered to pay the
first plaintiff:
57.1 R180 000.00 for general damages
57.2 R128 556.00 for future medical
expenses
57.3 Interest on the above amounts at
the legal rate from date of judgment to date of payment
57.4 Costs on the High Court scale
57.5 Interest thereon at the legal
rate from a date 14 days after date of allocatur to date of payment
[58] Second plaintiff
The second plaintiff’s claim is
dismissed with costs, such costs to include the costs of an
inspection–in–loco
and the preparation of the photograph
album.
[59] Third plaintiff
The defendant is ordered to pay the
third plaintiff:
59.1 R75 000.00
59.2 Interest thereon at the legal
rate from date of judgment to date of payment
59.3 Costs on the High Court scale
59.4 Interest thereon at the legal
rate from a date 14 days after date of allocatur to date of payment.
[60] Fourth plaintiff
The fourth plaintiff’s claim is
dismissed with costs, such costs to include the costs of an
inspection–in–loco
and the preparation of a photograph
album.
_____________
J
M ROBERSON
JUDGE
OF THE HIGH COURT
Appearances:
-
For
the Plaintiffs:- Adv M Beneke, instructed by James Philipson
Attorneys,
Port
Elizabeth
For
the Defendant:- Adv B Pienaar, instructed by The State Attorney,
Port
Elizabeth