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[2023] ZAKZPHC 87
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Ngubane v Minister of Police (4808/2017P) [2023] ZAKZPHC 87 (23 August 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
No: 4808/2017P
In
the matter between:
ELLIAS
THATHEZAKHE NGUBANE
PLAINTIFF
and
THE
MINISTER OF POLICE
DEFENDANT
ORDER
1.
The issue of liability is decided in favour of the plaintiff.
2.
The defendant is ordered to pay costs.
JUDGMENT
Delivered
on:
Mngadi
J
[1]
The plaintiff in an action claims damages from the defendant for
assault. Issues in
terms of Rule 33 (4) having separated, the issue
of liability falls to be determined.
[2]
The plaintiff is Ellias Thathezakhe Ngubane and adult male security
guard. The defendant
is the Minister of Police, a minister of state
in the government of Republic South Africa responsible for the South
African Police
Service.
[3]
The plaintiff claimed that on or about 10 February 2012 at midnight
at his home he
was assaulted by the members of the South African
Police Service causing him some bodily injuries and pain and a severe
psychological
trauma.
[4]
The plaintiff issued summons on 03 May 2017. He claimed in the
summons that he acquired
knowledge of the defendant as the
responsible organ of state when he consulted with the legal
representative.
[5]
The plaintiff in the particulars of claim made the following
averments.
On
or about the 10th February 2012 and approximately 12h00 midnight and
at the plaintiff's home in Kwahlaza Reserve, Empangeni,
in
KwaZulu-Natal, the plaintiff heard a loud knocking on the main door
of his home. The plaintiff requested the identity of the
person
knocking on the door and the person responded by saying 'it's me your
friend'. The plaintiff opened the door and two police
officers
dressed in civilian clothing entered into the plaintiff's home. The
two police officers informed plaintiff that they were
searching for a
firearm. The plaintiff told the two officers that he did possess a
firearm and he handed to them the firearm licence
authorizing
possession of the firearm and he produced to the officers the
firearm. One of the officers told the plaintiff they
do not require
the firearm that he handed to them which was a licensed firearm, but
they wanted an illegally possessed firearm.
The two police officers
then started viciously assaulting the plaintiff after they had
handcuffed him on his wrists behind his
back, they viciously slapped
him across his face; one of them placed a plastic tube three times
around the plaintiff's head in
order to suffocate him; the other
police officer took a twenty litre container and filled it to
capacity with cold water and threw
the cold water on the plaintiff';
the officer produced a stun gun and applied over both legs of the
plaintiff shocking him with
electric current. The police officers
after the assault placed the plaintiff into the rear of the police
van after they had wrapped
a blanket around his face. The police
officers drove with the plaintiff to kwaMthethwa region. They arrived
at the Mthethwa region,
parked near a certain homestead and pushed
the plaintiff roughly out of the van. They drove away.
[6]
The above-mentioned averments were restated in a statutory demand
notice dated 12
November 2014 attached to te summons. The defendant
filed a plea pleading no knowledge of the incident, denying the
allegations
and putting the plaintiff to the proof thereof.
[7]
The plaintiff testified, and he led evidence of two witnesses,
namely, Alpheus Msileni
Biyela and Sikhumbuzo Erick Ngubane. The
defendant lead evidence of one witness, namely' Mondeni Wellcome
Dubazane. The plaintiff
as documentary evidence introduced U88)
medical examination report and a police statement of the plaintiff
which were marked exhibits
A and B respectively.
[8]
It became common cause that for purposes of liability the dispute
centred on whether
the persons involved in the incident were members
of the South African Police, and if so, whether they were acting
within the course
and scope of their duties.
[9]
The plaintiff in the particulars of claim stated that the incident
took place on or
about 10 February 2012, but it is clear that, in
fact, the incident took place on 16 February 2012. The contents of
the police
crime docket Empangeni CAS 611/02/2012 opened when the
plaintiff laid a criminal complaint at the police station indicates
that
on 20 February 2012 the plaintiff and the witnesses reported
that the incident took place on 16 February 2012 at 01h00. The doctor
who examined the plaintiff on 24 February 2012 stated that it was
reported that the incident took place on 16 February 2012. In
addition, the defendant did not make the date of the incident an
issue.
[10]
In the statutory demand notice attached to the summons it is stated
that the incident took place
on 10 February 2012 at approximately 12
midnight and in Parag 7 of the said notice it is stated that:
'In
terms of Section 3(3) of the Institution of Legal Proceedings against
Certain Organs of State Act 2002, a debt may not be regarded
as being
due until the plaintiff 'Creditor has knowledge of the identity of
the Organ of State. Notwithstanding that the cause
of action herein
arose on 26 November 2012, client only acquired due and actual
knowledge of the identity of the office of the
Minister of Police on
the date of consultation with his legal representative herein, being
4 November 2014'.
It was not explained why
the notice referred to 1O February 2012 as the date of the incident
and in the same breath mention 26 November
2012 as the date of the
incident. But again, the defendant did not make any issue about the
different dates.
[11]
The purpose of a statutory demand notice is to place the defendant at
early stage in a position
to investigate the incident and to collect
evidence relating to the incident including how it happened and who
were involved to
enable the defendant to deal with the claims or
allegations arising from the incident forming the basis of the civil
claim. In
this case the statutory demand referred to two different
dates as the date of the incident and both dates mentioned were
wrong.
It contained no other details other than the name of the
plaintiff. It made no reference to the laying of the criminal charge
and
the reference of the police docket.
[12]
The plaintiff testified as follows:
'He
was 50 years old. He had a highest standard of education of Grade 11.
Around the 15th of February 2012 he was not sure of the
date, at
23h15 he was at his home. He had finished watching Tv at his home at
kwaHlaza at Empangeni. He heard a knock on the door.
He asked who it
was. The response was that he must open, it was the police. He went
to the door to open. His friend shouted and
said open Troy it is me.
Troy is his calling name. The friend in question was Ephraim Msweli
Biyela. He recognised the voice of
his friend. He opened the door. He
saw police officers. They were four in fact, two of them were in
civilian clothes and the other
two were wearing police uniforms. His
friend Biyela was with them, one police officer pointing a firearm at
him, instructed him
to lie on the ground which he did. He could
identify the police officer if he saw him. That police officer was
wearing a police
uniform and a bullet proof vest. He lied on the
floor on his stomach facing the ground. The police officer sat on his
back and
handcuffed him from the back. The other three police
officers stood watching. His friend Biyela stood near the door.
Having been
handcuffed, two police officers carried him to the centre
of the room. The one who handcuffed him, demanded the firearm from
him.
He told the police officers that he had a licenced firearm, and
he told the police officer where the firearm was. The police officers
said they did not want a licenced firearm; they wanted an illegally
possessed firearm. The police officer sitting on his small
back
slapped him on the sides of his face repeatedly. The other police
officer started kicking him on his body in the rib area.
They
demanded that he must produce the illegally possessed firearm. He
showed them his licenced firearm, but they continued assaulting
him.
They took a tube and placed it over his face suffocating him with it.
They told him to move his waist when he was ready to
talk. He would
move his waist and they would stop and ask him to produce a firearm.
When he did not, they repeated suffocating
him with a tube. The tube
would be held and pulled tight by the one sitting on his back. The
tube would be held tight for 2 to
3 minutes intervals. He then passed
out. When he woke up, he was wet, cold water having been poured over
him. When he woke the
police officers shocked him with a stick with
electric current. They shocked him on his body twice, and he fell
down.
[13]
The plaintiff testified that after he had fallen, the police officers
picked him up. They took
him to a police van. He was still in
handcuffs. The van was a bakkie. His friend of many years, more than
ten years, Biyela was
placed in a condor motor vehicle which was one
of the two vehicles the police officers were driving in. The bakkie
was a ranger
and two of the police officers travelled with him in the
bakkie, the other two travelled with Biyela in the condor. They drove
out of his home. They drove to another area which was about 20km
away. They arrived at a Sokhela homestead in the area of kwalamula
also known as kwaMthethwa. He knew the homestead because he
used to pass next to it. He was taken out of the police
van,
and he stood with a police officer guarding him next to the van. Two
police officers jumped over the fencing into the homestead.
Biyela
stood with another police officer next to the condor.
[14]
The plaintiff testified that after about 15 to 20 minutes the police
officers returned from the
Sokhela homestead. They said they had
found what they were looking for. They had with them a big firearm
and a person from the
Sokhela homestead. They took off handcuffs from
him and they told him to go. It was at about 02h00. He then went back
to his home,
and he told his mother and his siblings what happened.
His mother gave him the money to go to the doctor. He went to doctor
Panday.
He had planned to open a charge at the police station, but he
was told by the police to first go and see the doctor. He then went
to open a charge at eMpangeni Police Station. The police talked
amongst themselves as to who was working that night. Col Nyawo
phoned, and he said police agreed that they were at KwaHlaza and they
met Ngubane and Biyela, referring to him and his friend Biyela.
[15]
The plaintiff testified that the police did not come back to tell him
about the progress of his
case. He saw Dr Panday who examined him on
16 February 2012, but it is a longtime ago he is not sure of the
date. The incident
took place between the 15th and 16th February
2012. He told the doctor what happened. The police at the Sokhela
homestead slapped
him before they removed the handcuffs. The police
at Sokhela homestead took him out of the police van but did not
immediately leave
as stated in the particulars of claim. The police
when they left with him from his home, they wrapped him with a
blanket. The police
who assaulted him, one was in civilian clothes
and the other in a police uniform. He did know the date stated in the
particulars
of claim. When at his home he opened the door, the police
pointed firearms at him. He sees that Dr Panday stated that he saw
him
on 24 February 2012 not on 16 February 2012, he is not sure it
happened a longtime ago. He did not know whether Dr Panday was a
private doctor or not. He was going to Ngwelezane Hospital, but
police told him to go to Dr Panday. The police did not invite him
to
attend an 1.0 parade to point out the police officers who assaulted
him. The man from Sokhela home was arrested and taken by
the police
to a police station. The relatives of that man told him that they
found the man taken by the police at the police station.
He had told
the family, that the Sokhela man was taken away by the police. He
would identify the two police officers who assaulted
him if he saw
them. His mother tongue is isiZulu.
[16]
The plaintiff testified that those involved in the incident were
police officers. They said they
were police officers. They travelled
in one vehicle which was a marked police vehicle. Some of them were
in police uniforms. They
handcuffed him. They demanded from him an
illegally possesses firearm.
[17]
The plaintiff called the first witness Alpheus Mzweleni Biyela
(Biyela). Biyela testified as
follows. He was 57 years old. His
highest standard of education is Grade 11. The incident involving the
plaintiff took place in
2012. The police came to his home at Obizo in
the area of Empangeni at 10 pm. They were four, two in police uniform
and the other
two were in civilian clothes. The police uniform they
were wearing was greyish in colour. They told him that they wanted a
firearm
from him. They entered the house, and they separated him from
his wife. He told them he did not have a gun. They took him to his
late brother's rondavel. They assaulted him in the rondavel for about
an hour.
[18]
Biyela testified that he told the police officers he did not have a
firearm. He told them that
the firearm they used for hunting belonged
to the plaintiff and it is a licenced firearm. The police took him to
the plaintiff's
home. They were travelling in two motor vehicles. It
was a marked police van and a van silver in colour. They arrived at a
plaintiff's
home after 11pm. They were four police officers as they
were in his home. They parked vehicles in the yard. They instructed
him
to show them the plaintiff's house. He showed them the house.
They told him to knock. He knocked and the plaintiff asked who it
was. He told the plaintiff it was him and asked the plaintiff to
open. The plaintiff opened the door. Three (3) police officers
got
into the house. One police officer remained outside.
[19]
Biyela testified that police officers that got into the house
assaulted the plaintiff, they slapped
him, and kicked him. The
plaintiff fell to the ground. They suffocated him with a tube. The
plaintiff lost consciousness. They
poured water over him. They
shocked him with an electric current stick on his body which produced
sparks. The plaintiff had dreadlocks
and one police officer held the
plaintiff's hair and cut them with a small knife. The plaintiff was
bleeding. The police officer
in their two vehicles took him and the
plaintiff to Kwalamula area to a homestead, he did not know. He found
out later that it
was Sokhela homestead. They travelled in separate
vehicles. The plaintiff was in the marked police vehicle.
[20]
Biyela testified that at the Sokhela homestead the police parked the
vehicles outside the yard.
They took him out of the motor vehicle. He
remained next to the vehicle with one police officer. One police
officer remained with
the plaintiff. The other two police officers
jumped over the fence to the Sokhela homestead. They came back with a
young man from
one of the houses and a large firearm to a waist level
if standing on the ground. The young man was in handcuffs. They put
the
young man in a marked police vehicle. They drove away with the
young man. They left him behind and they also did not take the
plaintiff
with them.
[21]
Biyela testified that the plaintiff laid a complaint of a criminal
charge, and he also laid a
complaint of a criminal charge with the
police at eMpangeni Police Station. The investigating officer of the
case was Dubazane.
He made a statement, he spoke in isiZulu. He did
not know the four police officers. It was his first time to see them.
If he could
see them, he could identify them. He knew the plaintiff
for a longtime, they grew up together. He did not see any name tags
in
the clothing worn by the police officers. Although plaintiff did
not mention in his evidence, his dreadlocks being cut, he saw it,
it
happened infront of him. He was never invited to an 1.0 parade to
point out the police officers involved.
[22]
The third and the last witness for the plaintiff is Skhumbuzo Ngubane
(Ngubane). He testified
that he was 42 years old. He at school went
up to Grade 11. The plaintiff is his elder brother. In February 2012,
police officers
came to his home, and they assaulted the plaintiff.
It was at about 01h00, and dark outside. It happened at his home
inside a house,
in the area of KwaHlaza in the area of Cebekhulu. He
was in a different house from the house in which the plaintiff was
in. His
house was about 10 metres away from that of the plaintiff.
[23]
Ngubane testified that the police arrived, and they proceeded to the
plaintiff's house. He saw
the police van. Two of the police
officers were in uniform. The police officers got into the
plaintiff's house. He
then heard the plaintiff crying. He heard that
the police were saying to the plaintiff they wanted a firearm. It
took a longtime
about an hour. The police took a firearm, they took
the plaintiff and they left with him. He did not go out of his house.
The door
through which he watched had a crack. He could see outside.
After the police had taken away the plaintiff, he went to the
plaintiff's
house. The floor was wet and there were bloodstains. The
house was in disorder. It was dark outside but not very dark. He
could
not identify the police officers; he could not see their faces
clearly.
[24]
The defendant lead evidence of Mzondeni Wellington Dubazane
(Dubazane). Dubazane testified that
he was retired from the SAPS due
to medical grounds. He retires in 2020 holding to the rank of a
Captain. In February 2012 he was
employed as a detective stationed at
Empangeni Police Station. He was allocated to investigate the assault
case wherein plaintiff
was the complainant against the police. He
investigated the case, interviewed witnesses and obtained statements.
He completed the
investigation, and he submitted the docket to the
senior public prosecutor who took a decision to decline to prosecute.
[25]
Dubazane testified that the problem was that the complainant and
three witnesses were not able
to identify the perpetrators. They did
not know the registration numbers of the vehicles used. He had the
docket relating to the
matter, but he suffered a stroke which has
caused him to be unable to read. His supervisor directed him to hold
an 1.0 parade but
he could not hold an 1.0 parade because he could
not find out which police officers worked outside the police station
on that night.
A police officer working outside the police station
was required to make an occurrence book entry. He checked the
occurrence book
register and no entry had been made. He could not
hold an 1.0 parade involving all police officers working that night.
The investigation
is directed by evidence. He could not interview all
the police officers that were on duty that night.
[26]
The evidence of the plaintiff, his witnesses, the medical report
(J88) of Dr Panday and the opening
of a criminal charge by the
plaintiff and his witnesses making statements to the police
establishes that the incident took place
at about 01h00 on 16
February 2012. It also establishes that during the incident the
plaintiff was assaulted.
[27]
The evidence of the plaintiff together with the evidence of Biyela
and Ngubane show that the
four persons travelled in two motor
vehicles. These four persons just before midnight first arrived at
Biyela's home. They demanded
from Biyela an illegally possessed
firearm. They took Biyela to the plaintiff's home with them. They
demanded from the plaintiff
an unlawfully possessed firearm. They
took both Biyela and the plaintiff to another homestead about 20 km
away. Two of them got
into the homestead and came out with a young
man and a big firearm. They took away with them the young man and
they left the plaintiff
and Biyela.
[28]
The evidence of the plaintiff, Biyela and that of Ngubane to a lesser
extent show that the four
persons said they were police officers,
they used handcuffs, some of them the time were in a uniform similar
to that of the pole,
and one of the two vehicles they used, had
marking similar to markings of the police vehicles.
[29]
There is no indication that the persons could have been members of
any other police force other
than the South African Police Service.
Therefore, what needs to be determined is whether the evidence
establishes that the four
persons were police officers, members of
the South African Police Service. The duties of the members of the
South African Police
Service is exclusive to them. It is the only
police service that can conduct raids in the manner the four persons
did.
[30]
The plaintiff and Biyela are unable to identify any of the four
persons because they were unknown
to them. Both the plaintiff and
Biyela were the victims of the four persons and the incident took
place at night, it is understandable
that they could not have an
opportunity to take note of the registration numbers of the two
vehicles used by the four (4) persons.
Understandingly, there would
not know the names of the four persons not wearing name tags and not
introducing themselves and not
showing them the appointment
certificates.
[31]
The plaintiff relies as evidence identifying the four persons as
police officers is the mission
of the four person, that they used two
vehicles one bearing markings of the police vehicles, two of them
were wearing a uniform
similar to a uniform of the police and the
fact that they said they were police officers.
[32]
The court in deciding whether the plaintiff discharged an onus on him
considers whether the plaintiff
could have produced better evidence
than the evidence produced. The plaintiff became aware that the
identification of the four
persons was an issue when his criminal
case was declined to be prosecuted but he could not have known that
it was denied that they
were police officers. In a plea filed on 2
July 2012 it was made clear that it was denied that the persons who
perpetrated the
act were police officers.
[33]
The plaintiff saw the arrest and taking away of the young man from
the Sokhela homestead by the
four persons. He learnt that the young
man was found detained in a police station. There is no indication
that the plaintiff knew
that documents and registers relating to the
arrest and detention of the young man could show which police
officers were involved
in his incident although this must have been
known to Dubazane. It is not explained why it was not investigated
and found out which
police officers had been involved in the arrest
and detention of the young man.
[34]
It may be accepted that if it is proved that the four persons were
police officers, the fact
that some were in uniform, their used
vehicles at least one a marked police vehicle, their used handcuffs
and their entire mission
was to recover illegal possessed firearms,
it cumulatively shows they were carrying out duties as police
officers. In other words,
they were acting in the cause and scope of
their employment.
[35]
It must be emphasised that Capt. Dubazane was not directing his
attention in determining whether
the said four persons were police
officers or not. That was not an issue in the criminal investigation.
Even if they were shown
to be police officers, if they could not be
identified, the criminal prosecution would fail. The fact that he did
a shoddy investigation
is irrelevant and nothing can be inferred from
it. However, it is significant in showing that the defendant soon
after the incident
was placed in a position to ascertain whether the
persons involved were police officers or not.
[36]
The fact that the persons said they were police officers, travelled
in vehicles
one
marked as a police vehicle, some were in a uniform similar to that of
the police, carried handcuffs and importantly were in
a mission that
the police would normally be conducting are relevant factors in
determining whether the said four persons were in
fact police
officers. The plaintiff bears an onus to establish on the
preponderance of probabilities that the four persons were
members of
the South African Police Service. In
Pillay v Krishna and Another
1946 A D at 952 stated that he who asserts proves and not be who
denies, since a denial of fact cannot naturally be proved provided
that it is a fact that is denied and that the denial is absolute A
onus is the duty which is cast on a particular litigant, in
order to
be successful of finally satisfying the court that he is entitled to
succeed on his claim. The plaintiff produced evidence
establishing
objective facts and contend that the only reasonable inference to be
drawn from the objective facts is that the four
persons were police
officers. In
R v Blom
1939 AD 188
at 202-203 the court held
that the 'two cardinal rules of logic' which would not be ignored
when it came to reasoning by inference,
namely, the inference sought
to be drawn must be consistent with al the proved facts, and the
proved facts should be such that
they exclude every reasonable
inference from them save the one sought to be drawn. If they do not
exclude other reasonable inferences,
then there must be a doubt
whether the inference sought to be drawn is correct. It needs to
repeated that the plaintiff did not
prove that the vehicle was a
police vehicle neither did he prove that the uniform worn by the two
of the four persons was a uniform
of the police. The cumulative
effect of all the proved facts needs to be considered.
[37]
The plaintiff must discharge the onus on a proof on the balance of
probabilities.
Schacklard & Van Der Merwe
Principles of
Evidence, 4ed. At p 627 states: 'In civil cases the burden of proof
is discharged as a matter of probability. The
standard is often
expressed as requiring proof on a balance of probabilities but that
should not be understood as requiring that
the probabilities should
do no more than favour one party in preference to the other.
What is required is that the probabilities
in the case be such that
on a preponderance, it is probable that the particular state of
affairs existed'?
[38]
The other evidence produced by the plaintiff, in my view, shows that
it is it quite possible
that the four (4) persons were police
officers but the fact that when the plaintiff produced and showed
them his licenced firearm,
they did not take it and stated that they
wanted from him an illegally possessed firearm strengthens the case
that indeed they
were police officers. In my view, indeed the
probabilities do more than favour one party in preference to the
other.
[39]
In the result, judgment on the question liability on the issues
identified is granted in favour
of the plaintiff. It is found that
the four persons were police officers and they were acting within the
scope of their duties
as employees of the defendant when they
assaulted the plaintiff causing him some injuries causing him to
suffer damages.
[40]
It is ordered as follows:
3.
The issue of liability is decided in favour of the plaintiff.
4.
The defendant is ordered to pay costs.
Mngadi
J
APPEARANCES
Case Number:
4808/2017P
For the Plaintiff:
SR Naidu
Instructed by:
Sanjeev Singh
Incorporated
DURBAN
For First &
Second Respondents :
GM Mamvura
Instructed by:
State Attorney
(KwaZulu Natal)
DURBAN
Date of Hearing:
7 & 8 August
2023
Date of Judgment:
23 August 2023