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2024
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[2024] ZAECMHC 9
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Cingo and Another v SQ Risk Security Services (1627/2013) [2024] ZAECMHC 9 (1 February 2024)
IN THE HIGH COURT OF
SOUTH AFRICA
[EASTERN CAPE
DIVISION: MTHATHA]
CASE NO. 1627/2013
In
the matter between:
LUTHANDO
CINGO
1
s
Plaintiff
YONWABA
MESATYWA
2
nd
Plaintiff
And
SQ
RISK SECURITY SERVICES
Defendant
JUDGMENT
JOLWANA J:
Introduction.
[1]
This matter came before this Court for the determination of quantum,
the issue of liability having been dealt with and determined
in
favour of the plaintiffs in a judgement handed down on 25 March 2022.
In her judgement, my colleague Majiki J found the arrest,
detention
and assault of the plaintiffs unlawful. She thereupon ordered that
the defendant is liable for all the damages the plaintiffs
may prove.
That court was charged with determining whether that arrest,
detention, and assault on the then two young tertiary institution
students by the employees of the defendant were unlawful and wrongful
and whether the defendant was liable for the damages they
suffered as
a result.
The first plaintiff’s
evidence
[2] The first plaintiff
testified that in February 2013 he was a student at a technical
college in Cape Town pursuing building and
civil engineering studies.
Subsequent to the events of the early morning on 05 February 2013 he
experienced a serious drop in his
studies. He started by indulging in
alcohol and not studying as he should. He used to drink occasionally
before the incident. It
was the incident of the 5 February 2013 that
caused him to drink heavily. During the academic year in which this
incident occurred
he returned to school after the incident to
continue with his studies. However, he lost focus resulting in him
failing some modules.
He had to repeat those modules the following
year.
[3] He testified that
during his arrest he was handcuffed and made to sit outside during
the night. He was not allowed to communicate
with his family during
that period. His co- plaintiff was made to eat dog faeces while
pointed with a gun. The events of
05 February 2013 lowered his
dignity as the whole incident was reported in the media including the
SABC. It was a painful experience
for him which made front-page news
in the newspapers and was widely publicised even on radio. He was not
a top student. He was
just an average student, but his academic
performance dropped to below average after the incident. He was now
trying to rebuild
his life and forget about the incident. However,
when he has to testify, he is reminded of the pain that he suffered.
Before the
incident he was a joyful person, watching soccer matches
on television. He has lost confidence as a person.
[4] Under
cross-examination the first plaintiff testified that the media which
reported on the incident did not say that he had
done anything wrong.
However, his dignity was lowered by the fact that he was wronged in
how he was treated. The media published
that they were alleged to
have broken a glass at Ink Spot stationery shop that night. The media
reports on the incident caused
him to be viewed in a negative way by
members of the public due to the wide publicity the incident
received. On the day of the
incident when the media came, they found
them tied up to a trailer. The court that dealt with the merits found
that they were detained
from 1:00 in the morning and were released at
16:00 in the afternoon. He testified that he was not assaulted. It
was his cousin,
the second plaintiff who was assaulted. It was also
the second plaintiff who was caused to eat dog faeces, not him.
[5] Before the incident
he had failed one module at school. He had told Dr Botha whom he had
seen who prepared his medico-legal
neuropsychological report about
his academic studies. He saw the second plaintiff being assaulted by
about five black security
officers in his presence. They
assaulted him with a sjambok and was also kicked while he was outside
the vehicle. They then
threw him to the back of their bakkie and
continued assaulting him. He testified that they were not undressed
or physically exposed
to the female farm workers at Goodman Farm. On
Dr Botha’s report about him having been involved with gangs, he
disputed that
saying it was not a gang but a pantsula dance group
that he was involved with. There were various pantsula groups which
would sometimes
quarrel about music competitions.
[6] Before the incident
he had been charged with assault with intent to do grievous bodily
harm. He was arrested for that incident
but released as that matter
was discussed and resolved within the family. However, that happened
a long time before the incident
of the 05 February 2013. He described
that fight as having been a youthful fight which happened as part of
growing up. His involvement
in smoking also happened while he was
still at high school long before the incident. He never received any
counselling subsequent
to the incident because there was no money for
him for counselling sessions. He was not aware that there were State
facilities
in which he could get counselling for free. He testified
that the symptoms related to the trauma of the incident had abated
but
they had not completely ended. They still manifest themselves
when the incident is raised like when he has to testify in court.
[7] He previously did not
believe that there was still racism in this country until the
experience he went through during the events
of the 05 February 2013.
The ill-treatment he got was when white men tied him to a trailer
outside, when he asked for water and
they poured cold water over him;
when those white men asked why a criminal should be allowed to sit
comfortably. He was abused
in addition to being wrongfully arrested
and detained. He testified that police were not involved in his
arrest. When the police
arrived, they were chased away by the
defendant’s officials. His shame as a result of the incident
came from the fact that
he was tied to a trailer outside. Everybody
who came found him looking like a criminal for something he did not
do.
[8] In re-examination he
was referred to a newspaper article in which it was reported that “
as
the three accused were loaded into the back of the police van they
mocked the police and the media saying ‘oh, we are famous,
the
SAP and the daily dispatch is here, viva democracy viva, viva
police’, with Mr Scheepers showing a V sign laughing out
loudly”.
The first plaintiff explained that that was part
of the reasons he said that he did not believe that racism was still
alive in this
country until he went through what he experienced
during the incident. He said that he thought those officials of the
defendant
were insulting the police when they said those things.
The second plaintiff’s
evidence
[9] The second plaintiff
testified that during the year in which the incident took place he
was at university doing his second year
of his studies in social
sciences. During the night of 05 February 2013 he was in the company
of the first plaintiff together with
their other friends. They had
attended a funeral in Qumbu on that day. On their return back
to Mthatha they decided to go
and enjoy themselves in what is called
an “after tears” at the pool club. He explained that in
an “after tears”
they sit around and reminisce about the
person who had just been buried. It was his grandmother who had just
been buried on that
occasion. Alcoholic drinks are served at an
“after tears” gathering.
[10] They left the Pool
Club where they had held the “after tears” carrying their
alcoholic drinks going home. He was
close to his place of residence
when people driving a bakkie that did not have a canopy came and took
him. He did not know those
people. They were three men, one was the
driver and the other two threw him to the back of the bakkie. Before
they threw him to
the back of the bakkie they said something about a
glass at Ink Spot stationary shop which he was not sure whether they
said it
was broken or what exactly. He was then taken to Ink Spot. On
arrival there he was shown a cracked glass while he was at the back
of the bakkie and in handcuffs. They asked if he knew anything about
the cracked glass and he said he knew nothing. One of those
security
officers went to the front of the bakkie and took out something that
stretched and looked like a belt and used it to assault
him all over
his body. He could not ward off the assaults as he was handcuffed. He
was assaulted for quite some time. He asked
those men take him to the
police. However they continued assaulting him. He was made to lie
down on his stomach with his hands
cuffed behind his back.
[11] The vehicle drove
off at some stage, but he did not know where they were going but he
realised that they were outside of town.
They reached a place which
he later learned was called Goodman Farm. He was tied to a chair that
was on the veranda at the farm.
A certain grown-up man came and said
that criminals cannot sit comfortably on a chair. That man tied them
to a panel trailer. It
was difficult to sit while tied in that way.
When they needed to go to the toilet, they were required to call out
but if they just
wanted to pass water they were told to pass it where
they were while tied to the trailer. They were not given food. They
were not
given water to drink. When they asked for water to drink,
iced water was brought and poured over their bodies.
[12] At some stage he
asked for food. He was loosed from the trailer, and he thought he was
going to be given food. One of the men
took him away around a fence
to the back of those premises. When they reached there, he was
pointed to dog excretions and told
to eat them. He refused to eat dog
faeces. That man produced a firearm and pointed it at him. He
realised that he was being
forced to eat dog faeces. He was afraid
that the man would kill him as he pointed him with a firearm. He ate
the faeces and was
nauseated. After he was done eating the dog faeces
he was taken back to the trailer where he was tied up again. He told
the first
plaintiff about what happened behind the fence.
[13] After the incident
of the 05 February 2013 he went back to school. However, the incident
was public knowledge at school. He
ended up discontinuing his
studies. The newspaper article had published that he was forced
to eat dog faeces. The newspaper
also published the fact that he was
called a K- word which he regarded as a degrading term which had been
used during the time
of oppression. When he went back to school
in 2014, he went to the University of Fort Hare. The reason he
changed school
was because the incident was generally known at his
previous school and other students would ask him about it. He lost
confidence
in himself and also lost interest in studying. Eventually
he completed his studies and obtained a degree in social work. He is
now employed as a social worker.
[14] He was now receiving
psychological counselling. He could not do so before because he could
not afford to pay for counselling
sessions. He felt that drinking
alcohol was therapeutic to him as it lessened his suffering. Before
the incident he was an occasional
drinker. After the incident he a
became heavy drinker and would even drink a whole bottle of whiskey
sometimes. At work when cases
of traumatic abuse or experience came
to him he would discuss such cases with his superiors so that such
cases would not be allocated
to him because they affected him.
[15] After the incident
his character changed totally. Even a minor incident would cause him
to become very angry to such an extent
that he would lose control. He
testified that this could be one of the reasons he resorted to heavy
drinking. He would go to school
without having taken a bath or not
having slept and having consumed alcohol. At some stage he stole his
aunt’s vehicle and
went out with friends. He had never done
those things before the incident which was why he said it changed his
character. He had
never gone to class drunk or unkempt before the
incident. He had never had an altercation with his mother or sworn at
her before
the incident.
[16] Under
cross-examination the second plaintiff confirmed that he was
approached by journalists and he told them what happened.
He,
however, rejected the proposition that the publicity that attracted
the incident was his own doing. He confirmed that he was
assaulted by
the black security officers that arrested him. They also made him to
lie down on his stomach and drove him out of
town to the Goodman
Farm. They were the ones who also handcuffed him to a chair on the
veranda at the farm. He was then handcuffed
to a trailer where he had
to sit outside through the night. However, sitting while handcuffed
to a trailer was with difficulty
and discomfort. He was taken behind
the house and at that time the sun was already up, and the visibility
was good. He was able
to see what he was made to eat, that it was dog
excretions. A gun was taken out, pointed at him and he was told to
eat the dog
faeces. When he refused that man produced a firearm. He
took the dog faeces and tried to eat it but it nauseated him. The dog
faeces
eating episode took more or less about a minute.
[17] After the incident
of the 05 February 2013, he went back to Walter Sisulu University
where he remained for the rest of 2013.
He passed his studies that
year. What helped him to pass that year was that one of his lecturers
was a psychologist. That lecturer
got to know about his ordeal. He
would give him counselling sessions in his office which really helped
him. He then went to the
University of Fort Hare to do social work.
He changed courses to do social work because of what he experienced
during the incident.
He realised that what he went through could be
experienced by another person. He wanted to be in a position to help
people who
go through the same or similar trauma.
[18]
The evidence of the second plaintiff brought to the end the oral
testimony of all evidence presented. The plaintiffs closed
their
cases after which the defendant closed its case without any witness
being called. There was an agreement between the parties’
legal
representatives about the handling of the evidence of the expert
witnesses, Dr Botha and Dr Magula. Their expert reports
had been
prepared and filed in terms of Rule 36(9) and (b)
[1]
of the Uniform Rules of Court. The terms of that agreement are the
following:
“
1.
The medico–legal reports prepared by Dr Botha and Dr Magula can
be admitted into evidence, without the necessity of formal
proof.
2.It is agreed that the
said reports are what they purport to be, and that the legal
representatives of the parties will make submissions
in regard to the
probative value of the reports, or otherwise if so advised”.
As a result, Dr Botha and
Dr Magula were, by agreement between the parties, not called to
testify. The defendant had not filed any
opposing expert reports of
its own, did not call any expert witnesses and did not any witness at
all.
The findings of the
court on liability.
[19] As indicated
hereinbefore, at the conclusion of the merits trial, the court found
the defendant liable for the arrest and detention
of the plaintiffs
which it found to have been unlawful and wrongful. It also found the
plaintiffs to have been assaulted and found
the assault to have been
unlawful and wrongful. The court thereupon held the defendant liable
for all damages that the plaintiffs
may prove. To contextualise these
findings by court and most importantly to give context to the
evidence that was given in respect
of the quantum trial, I consider
the following paragraphs in that court’s judgment to be very
significant:
“
[49]
…[T]he plaintiff were kept handcuffed to the trailer from
early hours of the morning untill14h00 when police arrived.
At what
point would they have been released if police had not arrived. This
goes against the probability that there was ever an
intent to deal
with the plaintiffs according to law. The plaintiffs were detained
from the time they were apprehended. The second
plaintiff’s
mother and Beef said they were informed of the incident around
02h00. This was after the inspection at
Ink Spot. The
plaintiffs said the Pools Club closed at 24h00. Despite the fact that
the video recording indicates that their arrival
at the defendant’s
premises was around 05h00, they had been under the control of
Nontsolo long before that. The police could
have arrived before
14h00, but the plaintiffs were not instantly released, their release
happened after the arrival of the re-enforcement
and the media. I
accept that they were held from 01h00 to 16h00 the next day.
[50] Furthermore, their
relatives were not allowed to speak or interact with them. If it were
to be believed that they had asked
to be kept until their mother
came, why tie them to the trailer, why not release them when the
police came, instead resist that
instruction until more police back
up is called to the scene. Would it not have been sufficient to
handcuff them and left
them to sit comfortably, just to ensure that
they do not leave or interfere with the lady who was on duty.
[51]….
[52] The probabilities
favour the plaintiffs that all the alleged ill-treatment, they were
indeed subjected to. They said they were
tied by Myburg to the
trailer. The video observations as agreed to by the parties, show
that he was there at 06h19. The defendant’s
versions, that the
plaintiffs were sprinkled with water from broken pipe was not
testified by the defendant’s witnesses as
was suggested to the
plaintiffs. The plaintiffs insisted that Du Toit poured them with
water. The handcuffing of the plaintiffs
in the trailer is common
cause, it is unlawful. I find no reason not to accept that the second
plaintiff was taken to the back
behind the building. The video
recording records that Myburg did so. Beef also confirmed that he did
ask to be taken to the toilet
but not by Scheepers. If the video
recording is to be believed, the plaintiffs could be mistaken as to
the timing or the identity
of the white man who took him and the one
who tied them. The recording shows Du Toit as the one who arrived
before Nontsolo left.
They were adamant that they were not tied by
black males. The second plaintiff’s demeanour did no present as
someone who
did not speak the truth. When he testified about eating
dog faeces, he still broke down, five (5) years after the occurrence.
The
attack against his evidence is that he was not consistent as to
how many times and by how many people he was assaulted. I am
satisfied
with his evidence in this regard and find that he was
indeed assaulted. He testified at length about his injuries”.
[20] The evidence of the
plaintiffs in respect of the quantum and the submissions made on
behalf of either party must be considered
and assessed with the
backdrop of the whole judgement. I consider it better to approach the
plaintiffs’ evidence on quantum
having due regard to the
defendant’s submissions about it. The importance of this
approach lies in the fact that most,
if not all the evidence that the
plaintiffs gave in the merits trial was accepted by that court.
Furthermore, the defendant closed
its case without calling any
witness on quantum as I said before, thus leaving the plaintiffs’
evidence not having been gainsaid
at the conclusion of the quantum
trial.
[21] It was submitted on
behalf of the defendant that the plaintiffs’ claims were
grossly exaggerated with falsified allegations.
This is mainly with
reference to their particulars of claim. For instance, in the first
plaintiff’s particulars of claim
it was alleged that he was
physically assaulted as a result of which he sustained numerous
physical injuries. It was further alleged
that he was subjected to
ill-treatment by being forced to eat dog faeces. Counsel for the
defendant submitted that none of that
was true as the first plaintiff
was neither assaulted nor forced to eat dog faeces. Indeed, the
evidence of the first plaintiff
was that he was not assaulted or
caused to eat dog faeces. He testified that it was the second
plaintiff who was assaulted and
caused to eat dog faeces. Reference
was also made to the allegations in the particulars of claim that he
was detained for twenty-four
hours which was also not true as the
merits trial court found him to have been arrested at about 1:00 in
the morning and released
at about 16:00 in the afternoon.
[22] It was further
submitted that the arrest and detention of the plaintiffs’ and
the second plaintiff’s assault were
the run of the mill
wrongful arrest, detention and assault. They were however,
sensationalised by the issue of the second plaintiff
being forced to
eat dog faeces. It was argued that the first plaintiff and his
attorneys made common cause to plead that the first
plaintiff was
also caused to eat dog faeces and was also assaulted. It was
submitted that this was done to generate maximum sympathy.
The
article in the Daily Dispatch newspaper article was also said to be
part of this sensationalist agenda. In that article it
was reported
that:
“
The
two young men-Yonwaba Mesatywa, 22 and Luthando Cingo 23 alleged they
spent the better part of Monday and Tuesday handcuffed.
They claim
icy water had been poured on them and they had been forced to eat dog
faeces
”
.
The submission in
relation to the Daily Dispatch newspaper article was that it was
attributed to both plaintiffs as its reading
suggested.
[23] Some excerpts from
the first plaintiff’s interview with Dr Botha were referred to.
For instance, the fact he was not
forced to eat dog faeces, but it
was the second plaintiff who was forced to do so. He was allegedly
involved with gangs as a youth
and that he carries many regrets about
that period in his life. According to Dr Botha’s report he
recounted forms of premorbid
psychological distress that he
encountered during his involvement with gangs as a youth. He smelled
alcohol on the day of the assessment
and reported that he drank
alcohol on weekends and smoked cigarettes. Dr Botha reported that the
intensity of the symptoms of the
trauma would have abated
approximately three to four months following the incident. His
stimulation seeking behaviour with liquor
and drugs reflected a
long–standing clinical pattern and was not the result of the
trauma of this incident. His situation
was compounded by a number of
difficult experiences which predated the incident.
[24] On the basis of his
particulars of claim and the report of Dr Botha, the main submission
was that the first plaintiff exaggerated
his claim by saying that he
was assaulted when he was not. His alleged being detained for
twenty-four hours and the pleaded physical
injuries which he did not
suffer were cited as examples of exaggeration. Therefore, the first
plaintiff was prone to exaggeration,
so went the submission. In the
final analysis it was submitted that the first plaintiff was entitled
to no more than compensation
for wrongful arrest and wrongful
detention of about fourteen hours. It was further submitted that even
if he had been detained
in a prison cell, the essence of the
compensation would still be for the deprivation of liberty.
Therefore, the deprivations that
both plaintiffs endured were not
markedly different from what is generally encountered by any detainee
in a police cell. It was
submitted that there are no creature
comforts, there are no cell phones, there is no immediate access to
food, and there are no
comfortable chairs even in police cells. On
this basis, it was contended that arrest and detention decided cases
against the South
African Police Service should help in determining
the amount of the award of damages that should be granted by this
Court.
[25] With specific
reference to the second plaintiff it was submitted that he, together
with the first plaintiff were arrested.
They were detained together
and endured detention for about fourteen hours. However, the second
plaintiff was assaulted by being
struck on the back with a sjambok.
The court that determined the merits said that he endured weals
causing discomfort for about
a week. It was contended that the second
plaintiff’s reference in his particulars of claim to physical
injuries in his right
eye, the right side of the nose, a 1.8cm cut to
his lips and bruised testicles was an exaggeration. The very fact
that bruising
to private parts was introduced was an aspect of
sensationalism as it did not happen which was raised to exaggerate
the claims.
[26] Counsel for the
defendant went on to submit that the second plaintiff, just like the
first plaintiff, was handcuffed to a trailer
and when asked for
water, water was instead sprinkled on him. He was also forced to eat
dog faeces at gunpoint as the merit judgment
found. The
defendant’s counsel emphasised that subsequent to their release
from the unlawful detention neither plaintiff
received any medical
treatment. It was further argued that the consumption of dog faeces
must, by its very nature, have been of
a very short duration. The
plaintiff would have been forced to place dog excrement in his mouth.
He would have gagged and resisted
and felt nauseated and attempted to
vomit after which the whole episode would come to an end. This would
not have endured for longer
than one minute, it could have been even
shorter, so submitted counsel for the defendant.
[27] It was suggested
that the dog faeces incident could be equated to being sprayed in the
face with pepper spray which would be
similarly unpleasant but would
have had a more long-lasting effect. In the final analysis it was
submitted that there is no hard
and fast rule. Therefore, the court
would have to decide how to put value to such an incident for
purposes of determining an appropriate
compensation. However, the
quantification of the detention should be assessed by considering the
duration of the detention which
is fourteen hours on the basis of
parallel decided cases. The surcharge or solatium could be added to
the quantum to cater for
the dog faeces incident as an aggravating
feature of the assault, submitted counsel for the defendant.
The analysis
[28] The starting is the
court’s judgment on the merits. In its judgment that court
analysed the evidence after which it concluded
that the defendant is
liable for damages as may be proven by the plaintiffs for their
wrongful arrest, detention and assault. The
finding of the court that
dealt with the merits trail are binding on this Court. The avenue
that was available to the defendant,
if it had any difficulty with
that court’s analysis of the evidence and the conclusions
reached was the appeal process. That
process was followed, and it was
unsuccessful and was consequently aborted. There can be no second
guessing of that court’s
analysis and findings on evidence and
indeed its conclusions by this Court. The main reason I consider it
necessary to emphasise
this is that the defendant in its heads of
argument has sought to introduce what is apparently an amendment to
the order of court
on the merits in a manner that is beyond pointing
out an innocuous typographical error. This, counsel has done by
suggesting a
rewording of the merit trial’s court order. In its
order that court, inter alia, ordered that “the assault on the
plaintiffs
is held to be unlawful”. The rewording that is now
being suggested by counsel for the defendant is that that court order
should be understood to mean that “the assault on the second
plaintiff is held to be unlawful”. This is said to be on
the
basis that it was common cause that the first plaintiff was not
assaulted.
[29] The difficulty with
this proposition is that to the extent that it could be said that
that court made an error in referring
to the assault on the
plaintiffs as against the second plaintiff, the defendant had a
number of remedies. There was an appeal
process which I
referred to earlier or even a simple rule 42 process which needs no
explanation as to what it would have entailed
in this matter. The
attempt to seek to make this fundamental change to the court order is
problematic and unprocedural. Essentially
this Court is being asked
to exercise a jurisdiction it does not have by going beyond assessing
the merits in the suggested rewording
of that court’s court
order. The issue of whether or not the plaintiffs were assaulted is
not for this Court to revisit.
This Court must just determine the
quantum of damages payable to both plaintiffs. I will revert to this
issue later in this judgment.
[30]
The facts relating to the arrest, detention and assault are largely
common cause, conclusions and certain relevant factual
findings
having been made by the merit trial court. The defendant elected not
to call any witnesses on quantum including witness
that could have
provided some factual basis undergirding some of the defendant’s
contentions. It contented itself with the
cross- examination of the
plaintiffs and what its counsel calls contradictions between what is
alleged in the particulars of claim
and the evidence that the
plaintiffs gave on quantum. Counsel for the defendant also raised
quite strongly what he called the prosperity
of the plaintiffs to
exaggerate their claims. I do need to point out that beyond the
contradictions in the particulars of claim
on whether or not the
first plaintiff was assaulted as alleged and the injuries he
allegedly suffered as a result, the period of
detention and him being
allegedly made to eat dog faeces, no contradictions were pointed out
in his evidence.
[31] The other issued
raised very strongly was with regard to some of the contents of the
expert witness reports. It is not clear
to me why the defendant
agreed to forgo the opportunity to have these witnesses testify and
thus spurned the opportunity to cross-
examine them on any issue
raised in their reports. Even worse, it did not prepare its own
expert reports so that it may satisfy
itself about the condition or
aftereffects of the incident. The opposing experts would have had to
enter into joint minutes which
would have made navigating the reports
of witnesses who did not testify less treacherous. This is important
because while the issue
of an exaggeration is mentioned in the
report, there is no suggestion, let alone conclusion in the reports
that the plaintiffs
were not traumatised by the incident. In fact,
both reports make recommendations for appropriate treatment
protocols. This has
not been gainsaid even though there is a
submission that the first plaintiff should only be entitled to
damages for arrest and
detention while in respect of the second
plaintiff the defendant simply adds what it calls solatium to cater
for the dog faeces
incident.
Was the first
plaintiff assaulted?
[32] At paragraph 48 of
its judgment that court deals with assault at length and also deals
with how the second plaintiff was assaulted.
The court then concludes
by saying that “I am of the view that the second plaintiff
proved that he was assaulted.”
This is after dealing
extensively with the injuries that the second plaintiff sustained as
a result of the physical assault. However,
the court did not deal
with any injuries in respect of the first plaintiff. I can only
assume that the first plaintiff’s
evidence was not different
from the one he gave in this Court. That evidence was that he was not
assaulted. However, before it
concluded the issue of assault the
court said that “
[t]he first plaintiff being handcuffed
until released by police at 14h00 is common cause, so was the second
plaintiff
.”
[33]
This brings me to the legal definition of assault.
Snyman’s
Criminal Law
[2]
gives the following definition of assault:
“
Assault
consists in any unlawful and intentional act or omission.
(a)
which results in another person’s
bodily integrity being directly or indirectly impaired, or
(b)
which inspires a belief in another person
that such impairment of her bodily integrity is immediately to take
place.”
[34]
In addition to some of the findings of the court that dealt with the
merits, there is uncontroverted evidence which was given
in this
Court by the first plaintiff that he was, together with the second
plaintiff, handcuffed to a chair on a verandah. At some
stage during
that night a white employee of the defendant told them that criminals
should not sit comfortably in chairs. He thereupon
tied them to a
trailer that was in the premises. During the entire period of being
literally chained to a trailer, they were forced
to pee or pass water
right there. They were not taken to a toilet. The acts of being
handcuffed, being kept in handcuffs
for hours; having iced water
poured on a person are in my view, consistent with assault, physical
assault I might add
.
Snyman’s Criminal Law
[3]
is again of assistance with the correct understanding of physical
assault. He says:
“
(ii)
Indirect application: Force can also be applied indirectly. This
happens if X does not use a part of her body to apply force
to a part
of Y’s body, but uses an instrument or other strategy for this
purpose, such as when X hits Y with a stick, throws
stones at Y,
causes a train to derail in order to harm the passengers, lets a
vicious dog loose on Y, snatches away a chair that
Y was going to sit
on from under Y so that Y falls to the floor, spits in Y’s
face, empties a glass of water (or beer) on
Y or when Y, a hiker,
gets lost in thick mist, asks X the way, and X then deliberately
shows Y a way that will cause her (Y) to
fall over a precipice. Since
the slightest touch may amount to assault, it is not a requirement of
the crime that X actually injure
Y. It is not even required that Y be
conscious of the application of force upon her, because assault can
be committed even in respect
of somebody who is unconscious,
extremely drunk or asleep, as when X cuts off some Y’s hair
while Y asleep.”
[35]
There are many other examples that
Snyman
deals with in explaining the wide reach of what constitutes an
assault. I am of the view that assault is conceptually not capable
of
an exact or exhaustive definition or one that is a closed list. It
seems to me that whether or not a person was assaulted will
depend on
the facts of that particular case. In this case it is clear from
Majiki J’s judgment that both plaintiffs were
assaulted in
various ways including being kept in handcuffs for hours unlawfully,
and for no reason other than to humiliate, torture
and impair their
bodily integrity. In the process, their humanness was assailed and
degraded. For all this treatment they must
both be compensated.
However, the second plaintiff is also entitled to a further
compensation for the additional physical assault
that resulted in his
injuries. Majiki J must have had the considerations of what the first
plaintiff also went through in mind
when she said that “
this
treatment was in utter disrespect of the plaintiffs’ rights.
They were subjected to utmost ill-treatment, when their
arrest was
not lawful in the first place. There would have been no reason not to
take the plaintiffs to the police station as the
law demands.
”
[4]
The dog faeces
incident.
[36]
The second plaintiff gave evidence in which he expressed how he felt
after being forced, at gunpoint, to eat dog faeces. There
can be no
debate that that was a dehumanising treatment meted out to him by one
of the defendant’s employees who it is apparent,
had made up
their minds that none of their rights that even the most heinous of
criminals take for granted. Such criminals are
not excluded from the
rights that all detained prisoners routinely enjoy. There are many
such rights which are enjoyable even by
the worst in our society.
These rights include the rights provided for in section 35 (2) (e) of
the Constitution
[5]
. These
include the right to conditions of detention that are consistent with
human dignity.
[37] With our
Constitution in mind, it was disheartening, to say the least, to hear
counsel for the defendant arguing passionately
that the detention to
which the plaintiffs were subjected to is not markedly different from
the ordinary unlawful detention in
police cells. He said this was
because detention in police cells has no creature comforts like cell
phones, immediate access to
food and there are no comfortable chairs.
This was a rather shocking submission made on the face of the facts
of this case which
in the case of the second plaintiff included being
forced, at gunpoint, to eat dog faeces. Counsel went on to draw a
very strange
parallel between a human being, being forced at gunpoint
to eat dog faeces with having pepper spray sprayed to one’s
eyes.
In my view, these are vastly different, the one being
irritating and the other dehumanising. Counsel for the defendant made
light
of a very inhuman and downright horrible treatment meted out to
the second plaintiff by the employees of the defendant. This is
how
counsel for the defendant expressed his own personal imagination of
what would have happened in his heads of argument:
“
42.
The incident of consumption of dog faeces, in whatever way it
occurred, must, by its very nature have been of very short duration.
One can imagine the plaintiff being forced to place dog excrement in
his mouth, gagging and resisting, feeling nauseated and attempting
to
vomit, etc., whereupon the incident would be over. It is submitted
that it could not have endured for more than one minute,
and probably
a lot shorter than that”.
[38] In a situation in
which the second plaintiff’s humanity was literally shredded in
being forced to eat dog faeces, this
submission was inappropriate to
say the least. It sought to trivialise what is clearly a very
seriously dehumanising experience
that is actually difficult to
comprehend how anybody who goes through what the second plaintiff
went through could actually feel.
The racial issue
[39] The plaintiffs
testified to the effect that they attributed some of the
ill-treatment they received from the defendant’s
white
employees to racism. The relevant facts are worth repeating.
The plaintiffs were arrested by black security officers
who were in
the employ of the defendant on alleged suspicion of having attempted
to break into Ink Spot stationery shop. They were
handcuffed and
driven to Goodman Farm in the outskirts of Mthatha. On arrival at
that farm they were tied to a chair on the veranda
of a building in
that property. At some point a white man came and said
that criminals should not sit comfortably in
chairs. He thereupon
chained them to a trailer. They were not taken to a toilet so that
they could pass water in a toilet when
it became necessary. Instead,
they had to pee where they were cuffed to the trailer. The logical
consequence of this was that they
had to spend long hours in the same
place in which they peed. The second plaintiff asked for food.
Instead of being given food
he was taken to the back or behind a
fence where he was forced to eat dog faeces at gunpoint. When they
asked for water, iced water
was poured on them. They would have
remained in that wet condition until they were released by police
some hours later.
[40] A person made to eat
dog faeces and chained like an unwanted dog paint the whole incident
very differently. The fact that the
following utterances were
attributed to the white employees of the defendant who included Mr
Scheepers who is the owner of the
defendant is not without
significance.
Mr Scheepers is reported
to have said:
“
Oh
we are famous-the SABC and the Dail Dispatch is here.
Viva
democracy, viva police said Scheepers showing a V-sign and laughing
loudly.”
No evidence was presented
by the defendant to challenge the suggestions that these utterances
were attributed to them and the treatment
meted out to the plaintiffs
was racially motivated.
[
41]
The utterances were attributed to Mr Scheepers as he and Mr Myburg
and Mr Du Toit were led to a police vehicle after they had
been
arrested on charges of kidnapping the plaintiffs. The police who
initially went to Goodman Farm encountered resistance from
the
defendant’s white employees hence they had to call for backup
which, according to media reports included about 10 police
vehicles
including a Nyala and a dozen of armed officers. The plaintiffs’
feeling that there was a racial tone to their abuse
and ill-treatment
cannot be said to be unfounded in my view. We all have a duty to
cajole, if not force each other to align our
behavior to the
Constitution. Perhaps a part of the preamble to our Constitution must
be invoked lest we become complacent and
forgetful of our ugly past.
It reads:
“
We,
the people of South Africa, Recognise the injustices of our past:
Honour those who suffered for justice and freedom in our land,
Respect those who have worked to build and develop our country; and
Believe that South Africa belongs to all who live in it, united
in
our diversity. We, therefore, through our freely elected
representatives, adopt this Constitution as the supreme law of the
Republic….”
[42]
Some aspects of this case have reminded me of words of the late
Mohamed J in
Makwanyane
[6]
during the nascent days of our constitutional being as a nation in
which he expressed himself as follows:
“
All
Constitutions seek to articulate, with differing degrees of intensity
and detail, the shared aspirations of a nation; the values
which bind
its people and which discipline its government and its national
institutions, the basic premises upon which judicial,
legislative and
executive power is to wielded; the constitutional limits and the
conditions upon which that power is to be exercised;
the national
ethos which defines and regulates that exercise; and the moral and
ethical direction which that nation has identified
for its future. In
some countries the Constitution only formalises, in a legal
instrument, a historical consensus of values and
aspirations evolved
incrementally from a stable and unbroken past to accommodate the
needs of the future. The South African Constitution
is different: it
retains from the past only what is defensible and represents a
decisive break from, and a ringing rejection of,
that part of the
past, which is gracefully racist, authoritarian, insular, and
repressive, and a vigorous identification of and
commitment to a
democratic, universalistic, caring and inspirationally egalitarian
ethos expressly articulated in the Constitution.
The contrasts
between he past which it repudiates and the future to which it seeks
to commit the nation is stark and dramatic.
The past
institutionalised and legitimised racism.”
[43]
The incident of 5 February 2013 occurred almost eighteen years after
Makwanyane
. Courts should not sit in ivory towers when
instances of our constitutional democracy and our Constitution are
being trashed and
denuded of any real and intrinsic value come before
them. They have a role to play, and they must play it decisively and
unflinchingly.
Those who sacrificed life and limb and indeed future
generations expect no less from our courts. Besides, these kinds of
behavior
do not represent who are we as a diverse nation. Having
carefully read the judgement of Majiki J, heard and considered all
the
evidence, there can be no plausible explanation for the behavior
of Mr Scheepers and his two other white colleagues other than it
being racially motivated. They chose not to come to this Court to
testify and give their own explanation, if they wanted the issue
of
racism raised by the plaintiffs in their evidence understood
differently. This is a hugely aggravating feature of this matter.
The
plaintiffs were dehumanised. This country’s police force was
chased away and undermined and mocked when they went to
the farm to
secure the release of the plaintiffs until they had to call for
reinforcement. Our constitutional framework was openly
trashed with
Mr Scheepers as owner of the defendant apparently leading from the
front in that regard.
The
assessment of the quantum.
[44]
I have considered some decided cases which I found very useful on how
these types of damages that are applicable in this matter
should be
assessed. Each case depends on its own peculiar factual matrix and a
court must be guided by the facts of each case and
the similar cases
already decided on the specific issue being a useful guide. In the
case of
Tyulu
[7]
the legal position was stated as follows:
“
In
the assessment of damages for unlawful arrest and detention, it is
important to bear in mind that the primary purpose is not
to enrich
the aggrieved party but to offer him or her some much-needed solatium
for his or her injured feelings. It is therefore
crucial that serious
attempts be made to ensure that the damages awarded are commensurate
with the injury inflicted. However, our
courts should be astute to
ensure that the awards they make for such infractions reflect the
importance of the right to personal
liberty and the seriousness with
which any arbitrary deprivation of personal liberty is viewed in our
law. I readily concede that
it is impossible to determine and award
damages for this kind of injuria with any kind of mathematical
accuracy. Although it is
always helpful to have regard to awards made
in previous cases to serve as a guide such approach if slavishly
followed can prove
to be treacherous. The correct approach is to have
regard to all the facts of the particular case and to determine the
quantum
of damages on such facts”.
[45]
This matter has a number of unique and distinguishing features and is
marked by a number of aggravating factors. They include
the fact that
in arresting the plaintiffs the employees of the defendant had no
intention of subjecting them to any form of legal
process. They were
subjected to the law of the jungle and vigilante justice which
included not releasing them to the police even
when police arrived.
Assuming that the security guards who arrested the plaintiffs
genuinely suspected them of being the criminals
who broke the glass
at the Ink Spot stationery shop, I find it strange that they did not
take them to the police station down the
road which is less than a
kilometer away. Instead, they drove them out of town to a farm in the
outskirts of the city. They were
abused there in the most horrific
and odious manner possible.
[46]
The assessment of damages to be awarded is not an easy task with
competing interests and a rather very complex balancing act
to be
embarked upon. In
Seria
[8]
the court said:
“
There
is no fixed formula for the assessment of damages for non-
patrimonial loss. It is recognised that a court has the power to
estimate an amount
ex aequs et bono
and consequently enjoys a wide discretion, with fairness as a
dominant norm.”
The
sentiments expressed by Holmes J in
Pitt
[9]
are
as valid today as they were more than 60 years ago. He said:
“
I
have only to add that the court must take care to see that its award
is fair to both sides- it must give just compensation to
the
plaintiffs, but it must not pour our largesse from the horn of plenty
at the defendant’s expense.”
[47]
The case of
Tyulu
cautioned courts to ensure that the awards they make in the
assessment of damages for arrest and detention reflect the importance
of the right to personal liberty and the seriousness with which any
deprivation of personal liberty is viewed in our law. However,
this
case is about much more than the deprivation of Mr Cingo and Mr
Mesatywa’s right to personal liberty. It is also about
the rule
of law. It is about the right to human dignity especially that of
black people which has been neglected since time immemorial.
In
Smith
[10]
Madala J had this to say:
“
If
human dignity is regarded as foundational in our Constitution, a
corollary thereto must be that it must be jealously guarded
and
protected. As this Court held in Dawood and Another v Minister of
Home Affairs, Shalabi and Another v Minister of Home Affairs
and
Others, Thomas and Another v Minister of Home Affairs and Others:
‘
The
value of dignity in our Constitutional framework cannot therefore be
doubted. The Constitution asserts dignity to contradict
our past in
which human dignity for black South Africans was routinely and
cruelly denied. It asserts it too to inform the future,
to invest in
our democracy respect for the intrinsic worth of all human beings.
Human dignity therefore informs constitutional
adjudication and
interpretation at a range of levels. It is a value that informs the
interpretation of many, possibly all other
rights. This Court
has already acknowledged the importance of the constitutional value
of dignity in interpreting rights
such as the right to equality, the
right not to be punished in a cruel, inhuman or degrading way, and
the right to life. Human
dignity is also a constitutional value that
is of central significance in the limitations analysis. Section 10,
however, makes
it plain that dignity is not only a value fundamental
to our Constitution, it is a justiciable and enforceable right that
must
be respected and protected.’
Conclusion
[48]
On the common cause facts, the plaintiffs were not only unlawfully
arrested and detained, they were also subjected to inhumane
and
degrading treatment in which their human dignity and therefore their
intrinsic worth as human beings was unashamedly undermined.
They are
before this Court to assert their humanity and they must be
appropriately compensated. The two doctors referred
to earlier
made recommendations that some treatment protocol was necessary which
they recommended and priced. Counsel for the plaintiffs
suggested an
amount of R 25 000.00 for the plaintiffs in respect of future medical
expenses. It was never suggested that in the
event that this Court
found that the plaintiffs should be paid for future medical expenses,
that figure was inappropriate or somehow
exaggerated. I accept the
amount of R 25 000.00 for each plaintiff in respect of future medical
expenses.
[49]
For the unlawful arrest and detention for the 15-hour period, I am of
the view that am amount of R 75 000.00 per plaintiff
is justified. In
respect of the assault the first plaintiff is awarded R50 000.00. The
second plaintiff is awarded R100 000.00
for assault. In respect
of the second plaintiff being dehumanised further in being forced to
eat dog faeces he is awarded
R150 000.00.
Costs
[50]
While the total of award in respect of each plaintiff is within the
jurisdiction of the magistrates’ court, I am of the
view that
the magistrates’ court scale contended for on behalf of the
defendant would be inappropriate for this matter. Contrary
to counsel
for the defendant’s submission, this case is not a run of the
mill arrest and detention as well as assault case.
It has a number of
peculiarities that make the magistrates’ court scale of costs
totally inappropriate.
[51]
In the result, the following order shall issue:
1.
The plaintiffs are each awarded R25 000.00
in respect of future medical expenses.
2.
The plaintiffs are each awarded R75 000.00
for unlawful arrest and detention.
3.
The first plaintiff is awarded R50 000.00
for the assault.
4.
The second plaintiff is awarded R100 000.00
for the assault.
5.
The second plaintiff is awarded R150 000.00
for being made to eat dog faeces.
6.
The defendant is ordered to pay costs.
M.S.
JOLWANA
JUDGE
OF THE HIGH COURT
Appearances
Counsel
for the plaintiffs
M.S.
Manganye
Instructed
by
Mvuzo
Notyesi Inc.
Mthatha
Counsel
for the defendant
S.H.
Cole SC
Instructed
by
Vaughan
Holmes & Associates
c/o
Mgcotyelwa Krewu Inc.
Mthatha
Date
Heard
13
-14 November 2023
Date
delivered
01
February 2024
[1]
Rule 36(9)(a) and (b) read:
No
person shall, save with the leave of the court or the consent of all
parties to the suit, be entitled to call as a witness
any person to
give evidence as an expert upon any matter upon which the evidence
of expert witnesses may be received unless he
shall-
(a)
not less than fifteen days before the trial, have delivered notice
of his intention to do so; and
(b)
not less than ten days before the trial have delivered a summary of
such expert’s opinion and his
reason therefor.
[2]
Snyman’s Criminal Law: Seventh edition by Lexis Nexis at page
395.
[3]
Note 2 supra at page 396-397
[4]
Paragraph 50 of Majiki J’s judgment.
[5]
Constitution of the Republic public of South Africa,1996, which
reads in section 35(2)(e).
“
Everyone
who is detained, including every sentenced prisoner, has a right he
right-
(e)
to conditions of detention that are consistent with human dignity,
including at least exercise and the provision, at state
expense, of
adequate accommodation, nutrition, reading material and medical
treatment.”
[6]
S
v Makhwanyane and Another 1995(3) SA391 at 487 (CC) G-J
[7]
Minister
of Safety and Security v Tyulu 2009 (5) SA (SCA); 2009 (2)
SACR282(SCA); [2009]4 All SA 38 (SCA)
[8]
Seria v Minister of Safety and Security and Others (5) SA 130 (C)
at 148 I-J
[9]
Pitt v Economic Insurance Co Ltd
1957 (3) SA 284
(N) at 287 E-F.
[10]
NM and Others v Smith and Others
[2007] ZACC 6
;
2007 (5) SA 250
(CC);
2007 (7) BCLR
751(CC)
para 50.