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[2016] ZAECPEHC 4
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F v Minister of Police (3220/12) [2016] ZAECPEHC 4 (16 February 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH)
CASE
NO: 3220/12
In
the matter between:
F
Plaintiff
and
THE
MINISTER OF
POLICE
Defendant
Key
Words
Delict-
Damages- Negligence- Rape of detainee in police custody- Duty of
policemen.
JUDGMENT
MSIZI,
AJ:
INTRODUCTION:
[1]
This
is an action for damages arising from the rape of the plaintiff by
his cell-mates whilst he was incarcerated at the Walmer
Police
Station in October 2009.
[2]
The
plaintiff’s claim is founded on a duty of care owed him by the
defendant whilst he was in custody. For this,
the
plaintiff relied on the Preamble and section 14 of the South African
Police Service Act, 68 of 1995 (“the SAPS Act”);
the
Police Standing Order (G361) and sections 7(2); 205(3) 1C; 2; 8(1);
41(1)(c), read together with sections 38, 39(1), 39(2)
and section
173 of the Constitution.
[3]
The
plaintiff claims damages in the sum of R550 945.00.
[4]
At
the commencement of the trial, Mr Jooste, plaintiff’s counsel,
applied for the an order that the identity of the plaintiff
should
not be revealed to protect his minor son due to the nature of the
incident in question. I granted that order. Plaintiff
shall be
referred to herein only as “F”.
[5]
The
following facts are common cause or are facts that are not in
dispute:
(a)
The
plaintiff was arrested in the early hours of Saturday,
10 October 2009, by the members of the South African Police
Service (“SAPS”) at or near the intersection of Kempston
and Stanford Roads, Korsten, Port Elizabeth;
(b)
After
his arrest, the plaintiff was taken to Mount Road Police Station and
eventually detained at the Walmer Police Station from
10 October 2009
to 12 October 2009;
(c)
The
plaintiff was raped;
(d)
The
members of the SAPS acted without within the scope and course of
their employment by the defendant. The defendant had
a duty of
care and/or legal obligation to protect the plaintiff whilst in
custody.
THE FACTS
[6]
The
version of the plaintiff was based on the evidence of his
psychologist; the doctor who examined him after the alleged rape;
his
wife and himself.
[7]
Ian
Meyer a clinical psychologist testified. The plaintiff had been
referred to him for assessment and treatment between June
and
November 2010. This was eight months after the alleged rape. He also
treated the plaintiff such treatment still continued.
He had then
complied a medico–legal report for purposes of the court. He
re-assessed the plaintiff on 19 May 2012.
After the
re-assessment he supplemented the original report.
[8]
In
the medico-legal report he recorded the factual background of the
circumstances in which the alleged rape occurred relying on
information provided by the plaintiff and his wife during
consultation. The large part of his evidence and his report was
dedicated
to the extent of the trauma occasioned by the rape of the
plaintiff.
[9]
The
plaintiff’s wife also testified. Her testimony was that at
about 4h00 on Saturday 10 October 2009, she received a call
from a
person who identified himself as Capt. Singh of the Mount Road police
station. Capt. Singh informed her that the plaintiff
had been
arrested, bail was set at R500; he would be transferred to the Walmer
police station at 8h30 therefore she should bring
the bail money to
the police station before then.
[10]
At
the Mount Road police station at 8h00 with the R500, she was advised
that the plaintiff had already been removed to the Walmer
police
station and there would be no bail for him. She then proceeded
to Walmer police station, where a female officer accompanied
her to
the cells, to visit her husband. At the cells, she observed
other cell-mates starring and sneering and she had a bad
feeling
about them.
[11]
During
this visit her husband had asked her to get him food and cigarettes
which she quickly went to buy. She returned with these
to him. Her
husband pleaded with her not to visit again as he was uncomfortable
with the sight of him behind bars.
[12]
She
did not return to the police station. She saw the plaintiff
again in court on Monday the 12
th
where the plaintiff was released on bail. On his release she
noticed that he was walking with his legs straddled apart in
a
strange manner. On quizzing him on how he walked, the plaintiff told
her that he had been raped in the police cell in the early
hours of
that morning. They immediately went to Livingstone Hospital but
were referred to the Thuthuzela Centre in Dora Nginza.
He told her
that whilst in the police cells he had been warned of a plan that was
being hatched against him on Sunday and was raped
in the early hours
of Monday morning.
[13]
They
only went to Dora Nginza the next day, 13 October as they did not
have transport. At Dora Nginza the plaintiff was examined
by a
medical practitioner then discharged.
[14]
She
was referred to the particulars of claim where in paragraph 5 the
rape was alleged to have taken place in the early hours of
Sunday
morning and not Monday morning. It was pointed out that this was also
consistent with what was contained in the report by
Meyer which
stated that the rape took place on Sunday morning. She insisted
that the plaintiff told her that he was raped
in the early hours of
Monday morning.
[15]
It
was after these contradictions on the dates that the Mr Jooste for
the plaintiff applied for the amendment of the particulars
to reflect
that the rape occurred in the early hours of 12 October 2015, which I
granted.
[16]
The
plaintiff also gave evidence. His testimony was that he was
arrested in the early hours
of
the morning of Saturday, the 10
th
of October 2009. He was initially taken to Mount Road police station
later transferred to the police cells at the Walmer Police
station.
He was placed in a cell where there were twelve (12) males, all
African except for one white male who the police
removed that same
day between 11pm and 12pm. He was kept in that cell from that
Saturday morning until early Monday the 12
th
when he was removed and conveyed to Court with the other inmates.
[17]
On
the morning of his arrival, the Saturday, his wife visited him in the
cell in the company of a female police officer. His wife
got him food
which was grabbed from him by some of the inmates who were hostile to
him.
[18]
In
the cell he was with African inmates and one white inmate. He
had observed that the African inmates were hostile to him
giving him
dirty looks save for one who was friendly. These inmates spoke in
isiXhosa, a language he did not understand.
He had enquired
from the friendly one what they were saying but this friendly inmate
initially would not tell him. Later on, that
day, the friendly
cell-mate told him not to sleep as the other inmates were planning to
do something bad to him. He was not sure
what the plan was and when
it would be carried out.
[19]
During
the whole time he was detained in that cell i.e. Saturday 10 October
to 12 October in the morning, there were no police visits;
inspections of the cells and the inmates were not given any food.
Around sunset on Saturday, he saw a coloured policeman
who was
standing about a metre away from the cells, smoking. He asked
this police officer to spare him a cigarette but this
police officer
refused. He left it at that and went back to sit in a corner in
his cell. Later, on the same day, he saw another
policeman in the
yard who he approached and requested to be moved to another cell
because of the warning by the friendly cell-mate.
This policeman told
him not to worry as there were no other cells for him. He urged
him to stay strong. He did not
know what this police officer
meant by telling him to stay strong. He had not told this
police man what the plan against
him was.
[20]
He
remained in the cell that whole night. The cell was full and he
did not really have a space on the mat where the others
were
sitting. He sat against the wall. He remained scared and
worried throughout the night and gripped by fear, he
was unable to
sleep but dozed off at some point and woke up on Sunday morning.
Nothing happened to him that night and the next
day, Sunday the 11
th
.
He did not approach any police officer after that. He did not
see any point of complaining to the police as he had not receive
any
positive response from the police he requested a transfer to another
cell from.
[21]
On
Sunday night, he did not sleep. He could hardly keep his eyes
open though but was too afraid to sleep. Later during the
night,
over-powered by drowsiness and exhaustion, he fell asleep. He could
not tell the time of the occurrence of the rape but
it was in the
dead of the night probably at midnight of the 11
th
or early morning of the 12
th
October.
[22]
He
was stirred awake from the tired sleep when he felt someone grabbing
his arm; pushing his head down to the ground; felt his clothes
being
ripped-off whilst lying on his tummy on the bare floor. He was then
raped. During the attack on him, he could not scream
because
his mouth was shut. After a while, he passed out. He did
not know how many people raped him. When he
came to, he could
not get up. His anus was sore and there was blood on the
floor. It was sore when he walked.
The hostile inmates
were laughing and the friendly cell-mate did and said nothing.
[23]
He
did not alert the police or call out for help as he was too afraid of
the hostile inmates. The hostile cell-mates threatened
him with
reprisal if he reported the rape. He rode with the hostile
cell-mates to court in the police van. They also
warned him not
to tell the magistrate as there would be repercussions for him. He
complied with the order as he was too afraid
for his life.
[24]
The
first time he spoke about the rape was after his release when walking
out of the magistrate’s Court. This is when his
wife confronted
him about how he was walking and he revealed to her what had befallen
him in the police cells the previous night.
[25]
He
was cross- examined extensively on the contradictions between his
evidence and that of Meyer. In particular regarding the
service
of food; police visits and inspection of the cells at the cells
during that weekend. In his report 5 Meyer had referred
to
lunch being brought to the cells on Saturday; supper being served
that that same day and to a check of the cells later that
Saturday.
[26]
He
could not explain why Meyer would refer to the service of food at the
cells and cell visits. if he never told Meyer that;
he admitted
that Meyer could not have received this information from any body
other than himself. Initially, the plaintiff
would not respond
and was pressed, his response was that police never served the
inmates food. When pressed further for where
Meyer would have
received such his response he repeated that they were never served
food.
[27]
He
was pressed further that he was Meyer’s source of this
information, he responded that sometimes he forgets things; sometimes
he remembers things but he remembers that he never had breakfast
lunch or supper whilst in the cells.
[28]
When
asked if Meyer thumb-sucked the information the plaintiff shrugged
his shoulders.
[29]
He
also could not remember whether he was warned of the plot against him
on Saturday or Sunday.
[30]
He
confirmed that he did not tell the first police officer he saw
smoking about the threat to him. He told this to the second one
he
saw even then he did not detail the threat as he also did not know
what it was that was planned against him.
[31]
He
also denied that he called his wife whilst in police custody to ask
her to bring R500 bail money. He could not explain
why Meyer
had written that.
[32]
The
plaintiff was also cross-examined on the entries in the cell register
reflecting that there had been visits to; inspection of
the cells and
service of food by the police during his detention. He denied
that the entries were true. To stress this he
testified that if there
had been searches of the cells the police could have found his
cigarette lighter as he had this with him
during his incarceration.
[33]
He
was referred to a number of entries in the police cells the
correctness of which he denied vehemently except for one, a cell
visit by Colonel van Zyl, the senior superintendent. His
response was that this was the first time he saw a police officer
since the Saturday . On being pressed about this visit, he replied
that he remembered the visit as van Zyl had given his name but
he
could not remember what Van Zyl said. When pressed to explain
why he never mentioned the visit by van Zyl his explanation
was that
people do forget, he could not think of everything that happened at
the time he was incarcerated. He confirmed that he
never complained
to van Zyl.
[34]
The
defence also cross – examined the plaintiff at length on
peripheral evidence to test his credibility. This related
to
the events leading to his arrest largely highlighting the
contradictions between what was contained in Meyer’s report
and
what he told the Court.
[35]
The
defence called the evidence of Captain Singh who was on duty at Mount
Road Community Service Centre on the morning of 10 October 2009
when the plaintiff was brought in after his arrest. He could
not remember speaking to the plaintiff’s wife that morning
but
conceded that possibility as it was standard procedure for the police
to inform the next of kin about an arrest immediately.
He denied that
he would have brought up the issue of R500.00 bail in that
conversation as he lacked the authority to.
[36]
On
cross-examination he confirmed that, in terms of the
Criminal
Procedure Act, 51 of 1977
, as a captain he was entitled to set bail.
He was then referred to the contents of the docket. The docket
recorded that the
investigating officer was Inspector Van Huyssteen,
the time of the offence was 10 October 2009 at about 12.30 (after
midnight),
the arrest took place at 2.30 and the docket was handed to
Superintendent Brand on 11 October 2009 at 9h35. By 8
o’clock in the morning the plaintiff had been interviewed,
warned, the bail form completed, finger-prints taken and he had
been
charged.
[37]
Singh
conceded that, according to this form, there was no reason
objectively that precluded the release of the plaintiff.
[38]
The
next witness called by the defence was Deon George Richardson.
He confirmed that on the weekend of 10 to 12 October 2009
he was on
stand by on this weekend which included site visits. He
particularly remembered this weekend as there was a detainee
known to
him, as he was at the same school as his son. This detainee had
received a lot of food from his family and there
were empty plates
and food that had not been eaten in the cells and the cells were
dirty with food and plastic bags lying around.
The inmates had
not eaten the police food. The families brought food for the
inmates.
[39]
He
confirmed the recordal in the cell register of cell visits by him:
item 1133 a visit at 22h00 on Saturday the 10
th
;
item 1200, a visit at 10h50; on Sunday and another entry 1277 at
05h16 on Monday the 12
th
.
[40]
He
explained the routine that he would follow when he visited the cells.
The station-commander would open the cells for him. He
would ask the
detainees if there were any complaints, would count the detainees;
check outstanding complaints; urgent complaints
etc.
[41]
He
emphasised that what he registered in the cell register was the truth
of what had occurred as it would serve no purpose if he
registered a
lie in the register.
[42]
Under
cross-examination he confirmed that there were no permanent guards
outside the police cells at the Walmer police station.
The only
mechanism utilised to check upon the inmates was the regular hourly
visits of the cells. He also confirmed that
one could not
determine by merely looking at the cell register the type of crime a
detainee was in for. He explained that
detainees arrested for
being under the influence of alcohol were put together separated from
the other detained on other crimes.
Also those that detained for
murder or rape or violent crimes were kept together.
[43]
He
could not comment on his recordal that the cells were neat and tidy
whereas when Colonel van Zyl visited on Monday at 7h35 ,
van Zyl
recorded that the cells were in a terrible state. He could
attribute what was found by van Zyl to the fact that when
he visited
the detainees were all up preparing to go to court in which case all
the empty containers of food and food consumed
over the week-end were
strewn all around the cells. When he visited the cells the detainees
were still asleep.
[44]
He
denied any knowledge of a standard for bail of drunken driving.
He explained that he would not know this as the granting
or refusal
of bail was the responsibility of the detective service. His
unit did not have access to the dockets. He
would not comment
on the allegation put to him that, in not granting the plaintiff
bail, the police had been reckless.
[45]
The
next witness was Colonel Van Zyl who was the Station Commander at the
Walmer Police Station at the time of the detention of
the plaintiff.
He confirmed that the plaintiff had been kept in what is now called
“
The
Steve Biko Cell
”
which is behind a solid door with an iron gate inside the cell.
He explained that, during cell visits, one may enter
the cell or
stand outside the iron gate from where the entire cell is visible.
To see the far left-hand corner of the cell
clearly, one had to lean
on the iron gate. He explained that one police officer would be
accompanied by another member on
cell visits.
[46]
During
the cell visit, the detainees would be asked if they had any
complaints. The complainant would be taken aside so that
the
complaint could be registered. During his visit, no complaint
was relayed to him by any of the detainees. He explained
that,
in his experience, members of the police would not make false entries
that the cell was visited when it was not. Before
he visited
the cells, he would enquire from the members on the number of inmates
per cell and during his visits he would verify
that information, the
purpose being to test the veracity of what he would have been advised
of by the members. In his experience
the members would not make falls
entries in the occurrence book as they could be caught out.
[47]
He
confirmed that he had found the cell in a terrible state. He
explained that there were no cleaners on week ends, the detained
cleaned themselves; they also received a lot of food and thus one
would find empty packets strewn all over the yard. The detainees
were
not obliged to clean.
[48]
Under
cross-examination, he agreed that when the plaintiff’s wife
came to enquire about the plaintiff, the police could have
checked
with the investigating officer what the position with regards to bail
was and, if that had happened and as shown in the
docket that the
investigating officer had no objection to bail, then they could have
released plaintiff on bail and the rape would
not have happened.
It was put to him that a glance at the occurrence book showed that
the plaintiff was detained for drunken
driving and was not a flight
risk. Therefore there was no risk that he would not stand
trial. He could have been released
on bail of R500.00. He
explained though that the occurrence book was not always an accurate
reflection of the truth and thus
could not be relied to establish the
nature of the crime the detainee is in for.
[49]
He
was referred to the standing orders of the police regarding what the
responsibilities of an investing officer regarding the setting
of
bail. His response was that even with the standing orders the
determination of bail depends on the merits of each case.
In
this case he would have been concerned because there was an
indication that the plaintiff had fled the scene of accident that
would have impacted on the plaintiff’s honesty and prospects of
bail.
[50]
He
disputed that the toilets in the cells were dirty and if the toilets
were out of order, somebody would have complained.
The entries
did not record that. He denied that there were thirteen
detainees in one cell and, if there had been, he would
have queried
it. He stated that it was unnecessary to record the food brought to
the cells by family members.
[51]
He
conceded that if the plaintiff had been released on bail by the
police he would not have been raped in the cell.
[52]
The
next witness of the defence was Ayanda Sokolo. He testified that he
was on duty on 10 October 2009 at Walmer Police
Station and
confirmed the recordal of his cell visits and what he had noted
during those visits.
[53]
On
cross-examination he insisted that what he recorded is the truth and
confirmed that the cells were visited; the detainees were
served food
and no complaints were received from the detainees.
[54]
The
last witness was Mbogeni Bangilizwe Ntini, the other police officer
who was on duty at Walmer Police Station on the weekend
of
10 October 2009. He confirmed that he was on duty on
that weekend and that he had visited the cells as reflected
in the
Occurrence Book and, during those visits, he had never received any
complaints or requests. He confirmed that he had
searched the
detainees as recorded in entry 1265 and had not found any
cigarette lighter on the plaintiff.
[55]
On
his visit at 3h00 on Monday the 12
th
he did not see the plaintiff’s pants had been pulled down.
He would have noticed that if the pants were down on that
visit as
all the detainees were asleep.
[56]
The issue for determination is whether the members of the SAPS had
negligently breached their duty of care.
THE ISSUES
[57]
Did
the police, as a result of negligence, fail to exercise their legal
duty to protect the plaintiff whilst he was in their custody?
Put
differently, did the police fail to exercise reasonable care to
prevent the deceased being assaulted when there was a legal
duty to
do so?
[58]
Mr
Jooste for the plaintiff argued that:
(a)
Had
the plaintiff been released on bail he would not have been raped in
the cells;
(b)
The
plaintiff was indiscriminately placed in a cell with people detained
for serious violent crimes when he had been arrested and
detained for
drunken driving and failure to stop after an accident;
(c)
His
rape or other harm was foreseeable as he had made a report to a
police officer on Saturday afternoon.
[59]
He
argued further that that the plaintiff had made out a case of
negligence in that there were triggers for the defendant. Such
negligence is evidenced in the following :
(a)
Singh
admitted that the plaintiff could have been released on bail on
Saturday morning;
(b)
the
evidence of the plaintiff that he reported the warning of an imminent
plan against him to a police officer on Saturday was not
challenged
in the evidence of the defence;
(c)
the
charge against the plaintiff was drunken driving therefore he should
not have been placed with criminals detained for serious
crimes. An
examination of the occurrence book by Capt Richards and Col. van Zyl
would have triggered the removal of the plaintiff
to another cell
with people facing a similar charge to him. In support of this
Mr Jooste referred to the case of
Noel
Botha v Minister of Safety and Security
[1]
In that matter, the court found that hourly visit when there were
signs of an imminent danger to an inmate were inadequate. In
this
case Botha had been arrested and detained for being drunk and
disorderly. He was raped whilst in custody.
(d)
there
were warning signs which should have triggered positive steps the
defendant is enjoined to take in terms of section 12(1)
(c) of the
Constitution. The cell visits registered in the cell register
and testified on by the defence witnesses are disputable.
The
accuracy of the recordal in these records was questionable.
The recording of information in the cell register appeared
mechanical. This is evidenced by the difference in what was
recorded regarding the cleanliness of the cells. Van Zyl
recorded cells found in a terrible state to the extent that a report
has to be filed by the SAPS members to explain the condition
of the
cell. This is in acute contrast with that is recorded by all
the other officers who visited the cells earlier.;
(e)
The
defence did not bring a witness who could testify satisfactorily that
reasonable steps were taken to prevent the harm to the
plaintiff.
No witness was brought to challenge that the plaintiff approached a
police man on Saturday regarding the warning
of harm to him. The
hourly visits to cells, which are disputed, are in any way inadequate
in the circumstances as there was a warning
to the police. The
placement of detainees was also haphazard with no regard for the kind
of crime a detainee was in detention
for.
[60]
Mr
Gqamana for the defendant, addressed the Court on the plaintiff’s
submission that had the plaintiff been released on bail
on Saturday
morning, he would not have been detained in the police cells thus
would not have been raped. He submitted that the
mere fact of
detention does not naturally give rise to harm. Besides, even
if it did, it would not add anything to the case
of the plaintiff as
the duty of care is owed to everyone in the police custody.
[61]
He
proceeded to address the submission that the plaintiff had warned the
police of imminent danger thus reasonable steps should
have been
taken to avert the danger. He argued that the allegation that the
plaintiff had reported the threat on him should be
rejected as untrue
because the plaintiff’s case contains contradictions and the
plaintiff was not a credible witness. His
story changed along the
way. The statement he gave to the police; contents of
pleadings; report by Meyer; evidence of his
wife; his evidence
in-chief and in cross- examination all contain material differences.
He submitted that these contradictions
were fundamental and have a
direct impact on the question of whether the harm was foreseeable.
This makes the plaintiff’s
case unreliable. With these
contradictions Gqamana submitted, this court cannot find that the
harm was foreseeable.
[62]
According
to the evidence of the defendant, there was no complaint forwarded to
the police during the cell visits. This is
in accordance with
the recordals of cell visits by various and different police officers
on their visits to an inspection of the
cells. The plaintiff also
confirmed that he made a complaint once to one officer on Saturday
afternoon only.
[63]
Gqamana contended the Court should reject the reliance on the
Botha
[2]
case that the hourly visits were inadequate. The conclusion of
inadequacy of the measures taken by the defendant in the present
circumstances can only be reached once this Court accepts that the
defendant was alerted to the prevailing danger upon the plaintiff.
This is not the case.
[64]
As
regards where the plaintiff was kept in light of the charge he was
facing according to the occurrence book, the plaintiff Gqamana
pointed out that van Zyl had stressed that one could not rely on the
contents of the occurrence book in determining the charge
facing a
detainee. Even then there was no evidence that where he had
been kept there were warning signs that he could come
to harm.
THE LAW APPLICABLE TO THE FACTS
[65]
I
come now to consider whether the plaintiff has established the
liability of the defendant. First of all, the legal principles
which
are relevant. In
Peri
– Urban Areas Health Board v Munarin
[3]
dealing with negligence, Holmes JA said:
“
Negligence
is the breach of a duty of care……………Sometimes
the law requires me to be my brother’s
keeper. This happens,
for example, when the circumstances are that I owe a duty of care;
and I am negligent if I breach it. I owe
him such duty if a diligens
paterfamilias, that notional epitome of reasonable prudence, in the
position in which I am in would:
(a)
Foresee
the possibility of harm occurring to him; and
(b)
Take
steps to guard against its occurrence.
Foreseeability
of harm to a person, whether he be a specific individual or one of a
category, is usually not a difficult question,
but when ought I to
guard against it? It depends upon the circumstances in each
particular case, and it is neither necessary nor
desirable to attempt
a formulation which would cover all cases. For the purposes of the
present case it is sufficient to say, by
way of general approach,
that if I launch a potentially dangerous undertaking involving the
foreseeable possibility of harm to
another, the circumstances may be
such that I cannot reasonably shrug my shoulders in unconcern but
have certain responsibilities
in the matter—the duty of care.”
[66]
Later
In
Kruger
v Coetzee
[4]
Holmes JA articulated the classic case of negligence:
“
For the purposes of
liability culpa arises if ─
(a) a diligens paterfamilias
in the position of the defendant ─
(i)
would foresee the
reasonable possibility of his conduct injuring another in his person
or property and causing him patrimonial
loss; and
(ii) would
take reasonable steps to guard against such occurrence; and
(b)
the defendant has failed to take
such steps.
…
..
Whether a diligens paterfamilias in the position of the person
concerned would take any guarding steps at all and, if so, what
steps
would be reasonable, must always depend upon the particular
circumstances of each case. No hard and fast basis can be laid
down.
[67]
It is trite that the
question whether the precautions taken to guard against foreseeable
harm were reasonable or not is a factual
one. This was explained by
Scott JA in
Cape
Metropolitan Council v Graham
[5]
as follows: “…
,
it is now well established that whether in any particular case the
precautions
taken to
guard against foreseeable harm can be regarded as reasonable or not
depends on a consideration of all the relevant circumstances
and
involves a value judgment which is to be made by balancing various
competing considerations. These would ordinarily be:“(a)
the
degree or extent of the risk created by the actor's conduct; (b) the
gravity of the possible consequences if the risk of harm
materialises; (c) the utility of the actor's conduct; and (d) the
burden of eliminating the risk of harm'.
.
. . If a reasonable person in the position of the defendant would
have done no more than was actually done, there is, of course,
no
negligence.”
[68]
In
S
v Bochris Investments (Pty) Ltd & Another
[6]
Nicholas AJA sounded a caution on how to determine negligence: “
In
considering this question [reasonable forseability], one must guard
against what Williamson JA called “insidious subconscious
influence of ex post facto knowledge” …..Negligence is
not established by showing merely that the occurrence happened
(unless the case is one where res ipsa loquitur), or by showing after
it happened how it could have been prevented. The diligens
paterfamilias does not have “prophetic foresight”.
…….After the event, even a fool is wise. But it is
not
the hindsight of a fool; it is the foresight of the reasonable man
which alone can determine liability
[69]
In
casu,
the plaintiff’s counsel argued that the plaintiff should have
been released on bail early on Saturday morning, as the bail
could be
set at that point. His release at that point would have
prevented the rape as he would not have been kept in police
custody
where the rape took place.
[70]
I am
not convinced that the failure of the police to release the plaintiff
on bail early Saturday morning can on its own this gives
rise to
negligence. The point is that whether the plaintiff was in lawful or
unlawful custody he was still owed the duty of care.
It cannot
be correct as I understand to be the stance taken by Mr Jooste, that
without more, the defendant is liable for the rape
of the plaintiff
solely because he had been kept in detention when he could have been
released. The question that has to be answered
is whether the rape
foreseeable? As long as there is no evidence to support this
submission it must be dismissed.
[71]
I now
deal with whether the defendant was warned about the looming danger
on the plaintiff or whether it complied with its duty
of care.
I start with whether the defendant was warned.
[72]
The
versions of the plaintiff and the defendant regarding the warning by
the plaintiff are mutually destructive and cannot be reconciled
by
any amount of ingenuity. In the present case the onus rests
upon the plaintiff to prove that the defendant was warned.
The
standard of proof is a balance of probabilities. It is trite law that
to hold that an onus resting upon a plaintiff has been
discharged,
where there are two stories mutually destructive, the court must be
satisfied upon adequate sound and substantial grounds
that the story
of the litigant upon whom the onus rests is true and the other is
false
[7]
.
This means that it is not enough to say the story told by the one is
not satisfactory in every respect. It must be clear
to the trial
Court that the version of the litigant upon whom the onus rests is
the true version, and that absolute reliance can
be placed upon the
story as told by that litigant notwithstanding its inherent
improbabilities.
[73]
To
succeed the litigant who bears the onus of proof should satisfy the
Court on a preponderance of probabilities that his or her
version is
true and accurate and therefore is acceptable, and that the other
version advanced by the defendant is 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
[8]
.
[74]
The
approach to be adopted in the assessment of such versions was
explained in the dictum of
National
Employers’ General Insurance Co Ltd v Jagers
[9]
where Eksteen AJP (as he then was) said: “
Where
there are two mutually destructive stories the plaintiff 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 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,
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 than 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 the defendant’s version is false”.
[75]
Eksteen
AJP expanded to explain how a Court reaches the conclusion that a
plaintiff has discharged his onus. “ ………
..one
talks of about a plaintiff having discharged the onus which rested
upon him on a balance of probabilities one really means
that the
Court is satisfied on a balance of probabilities that he was telling
the truth and that his version was therefore acceptable.
It does not
seem to me to mean to be desirable of a Court to first consider the
question of the credibility of the witness as the
trial judge did in
the present case, and then, having concluded that enquiry, to
consider the probabilities of the case, as though
the two aspects
constitute separate fields of enquiry. In fact, as I have pointed
out, it is only where a consideration of the
probabilities fails to
indicate where the truth probably lies, the recourse is had to an
estimate relative credibility apart from
the probabilities.”
[76]
In
the case of
Stellenbosch
Farmers’ Winery Group Ltd and Another v Martell
et
cie
and Others
[10]
the Supreme Court of Appeal neatly unpacked the approach to be
followed where a Court is confronted by irreconcilable versions
as
follows: It should make its finding on (a) the credibility of factual
witnesses;(b) their reliability;(c) probabilities as to
their
credibility depending on its impression of veracity of witnesses-
that in turn depending on variety of subsidiary factors
such as (i)
witness’ candour and demeanour in the witness box; bias, latent
and blatant; internal contradictions in his/her
evidence; external
contradictions with what was pleaded or put on his behalf or with
established fact with his own excracurial
statements and action;
probability or improbability of particular aspects of his version,
the caliber and cogency of his performance
compared to that of other
witnesses testifying about same incident or events. As to the
witness’ reliability, opportunity
to experience and observe the
event in question and quality, integrity and independence of his
recall thereof. As to probabilities
this necessitates analysis,
assessment and evaluation of probability or improbability of each
party’s version on each of
the disputed facts. As a final the
court will determine whether party burdened with onus of proof
succeeded in discharging it –
hard case occurring where
credibility findings compel the court in one direction and its
evaluation of general improbabilities
in another – latter
becoming less convincing where former more so. Probabilities
prevail where all factors equipoised.
[77]
In
National
Employers General Insurance Association v Gany
[11]
the court laid down the test to be as follows: “
where
there are two stories mutually destructive, before the onus is
discharged the Court must be satisfied that the story of the
litigant
upon whom the onus rests is true and the other is false.”
[78]
In
Santam
Bpk v Biddulphs
[12]
the Supreme Court of Appeal stated:
“
It is
equally true that findings of credibility cannot be judged in
isolation, but require to be considered in the light of the
proven
facts and the probabilities of the matter under consideration.”
[79]
In
presenting his evidence the plaintiff was not an epitome of an honest
witness. He was quizzed on a lot of things
regarding his credibility e.g. the time he finished work; his
movements after knocking off from work; why he had been arrested;
why
he had left the scene of where he had knocked down a fence wall. I
found the plaintiff evasive and just unable to explain a
lot of
contradictions in his case.
[80]
On
the warning and when the rape occurred there were unexplained
contradictions in his evidence; that of Meyer, his psychologist;
and
his wife. Of course in dealing with these contradictions I am mindful
of the fact that the consultation with Meyer and the
subsequent
report provide cannot be expected to report with preciseness what
Meyer had been told by the plaintiff. Therefore I
accept that the
report shall not relate everything accurately. However,
there is crucial information that was discussed
which was relevant
for purposes of determining the psychological trauma suffered by the
plaintiff. With regards to this category
of information it is
difficult to explain the contradiction.
[81]
By
way of example I shall refer to a sample of information. In his
report Meyer refers:
(a)
to
lunch being brought to the cells on Saturday and supper being served
on Saturday; According to the plaintiff there had been no
service of
food the whole time he incarcerated.
(b)
the
inmates had grabbed the food his wife brought for him. This and the
fact that he was with 13 strangers feel weird and he experienced
great anxiety and apprehension which made him to keep to himself.
Later, he approached the policeman who served lunch at
the cells for
transfer to another cell. This is contrary to what the
plaintiff alleged that he had approached a police officer
about his
transfer after being warned that the other inmates were plotting to
harm him.
(d) he was warned about the plot after
supper on Saturday and had asked for transfer to another cell from a
police officer who had
come to check the cells later that night.
Against this is different from the version of the plaintiff.
[82]
In
dealing with these contradictions I have considered that when the
plaintiff consulted with Meyer, the memory of what had happened
was
still relatively fresh in his mind having occurred at least 8 months
prior to the consultation. He had consulted with
Meyer more
than once. The purpose of the consultation was to determine the
extent of his trauma. The plaintiff had also been
referred to
Meyer by his attorney so the plaintiff would have realised the
importance of this consultation. In addition to
this, Meyer, as
a psychologist with extensive experience in attending court as an
expert on matters of this nature understood the
importance of
ensuring that the facts of the case are as accurate and correct.
It would have been important to Meyer to establish
with certainty
when the rape on the accused had occurred. Under cross-
examination Meyer was adamant his report based on
the facts as were
related to him by the plaintiff. This date of when the rape
took place was also significant. According
to the Meyer report the
plaintiff had been raped on the Saturday night or early hours of
Sunday. This would have meant that
plaintiff remained in the
cell at least 1 and half nights unattended. This would increase his
trauma, a factor relevant for Meyer.
[83]
So
this Court is dealing with a case of the plaintiff whose version
contains inherent contradictions which is challenged by the
police
who substantiate their case with documentary evidence. This
documentary evidence records regular vists to the cells
and feeding
of prisoners. Meyer’s report refers to some police visits
and service of food. Even Capt van Zyl found
the cells dirty when he
visited them on Monday morning. The uncontroverted evidence of
the police in this regard is that
this was empty containers of food
and some left over food. I have not had any reason to reject
the version of the police.
[84]
Owing
to the above, I cannot accept the truthfulness of what the plaintiff
alleged regarding warning the police of the threat to
him. Even
if I could accept that he has warned the police, I am not satisfied
that such warning would have triggered taking
measures beyond those
the police took in this case as according to the plaintiff he did not
indicate the nature of the threat to
him. That being the case,
this Court is unable to find that the measures taken by the police
were inadequate.
[85]
Unless
I come to the conclusion that the evidence of the police was
unacceptable, then I cannot accept the plaintiff’s version
that
he alerted the police about the imminent danger to him.
[86]
I
have no reasons to doubt the credibility of the police officers that
the cells were visited at regular intervals and at those
intervals
the detainees were requested to indicate if they had any complaints.
[87]
On
the conspectus of the whole evidence before me, I am satisfied that
the police were not aware of the threat looming against the
plaintiff, if they did they were not aware of its nature therefore,
in these circumstances they adopted the usual and standard
precautionary measures. I am therefore satisfied that that they
discharged the duty owed by them adequately.
[88]
I
have accepted that the entries in the occurrence book reflect that
the cells were visited and the detainees were asked for complaints.
I
do not have any reasons to doubt the truthfulness of these entries.
I also accept that these visits were reasonable at
hourly intervals
therefore.
[89]
I
have found that there is nothing that could have alerted the members
of the defendant to this rape.
[90]
Therefore,
in the circumstances of this case, I dismiss the action of the
plaintiff. Each party to pay its own costs.
_________________________
N MSIZI, AJ
On behalf of the
Plaintiff/Applicant:
Adv P jOOSTE instructed by SWARTS
ATTORNEYS
80 Standford Road
Korsten
PORT ELIZABETH
On behalf of the Defendant/Respondent:
Adv N Gqamana assisted by R Laher
instructed by the STATE ATTORNEY
30 Western Road
Central
DATE
OF HEARING: 24 -26 AUGUST 2015
DATE OF DECISION: 16 February 2016
[1]
Case 6688/2006
unreported case in the Cape Town High Court per Traverso DJP,
judgment delivered on 13 May 2008
[2]
Footnote 5 supra
[3]
1965(3) SA 637(A) at 373E-H
[4]
Footnote 2 supra at 430E -H
[5]
2001 (1) SA 1197
(SCA)
at paragraph 7
[6]
1988(1) SA 861(A) at 866i-867C
[7]
National Employers Mutual General Insurance
Association v Gany
1931 AD 187
at page 199
[8]
Baring Eiendomme Bpk v Roux All SALR 399
[9]
1984(4) SA 437 (E) AT 440E-441A; Koster Ko –
Operatiewe Landboumaatskappy Bpk v Suid – Afrikaanse Spoorwee
en Hawens
1974(4) SA 420 (W); African Eagle Assurance Co Ltd v
Cainer 1980 (2) SA 234 (W)
[10]
2003(1) SA 11
[11]
1931 AD 187
AT 199
[12]
2004(5) SA 586 (SCA) at 589G