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[2023] ZAECMHC 18
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Matinjwa v Minister of Police (566/2016) [2023] ZAECMHC 18 (25 April 2023)
IN THE HIGH COURT OF
SOUTH AFRICA
[EASTERN CAPE DIVISION
– MTHATHA]
CASE NO.: 566/2016
In the matter
between:-
DUMISANI MATINJWA
PLAINTIFF
and
MINISTER OF POLICE
DEFENDANT
JUDGMENT
NORMAN J:
[1]
Plaintiff is an adult male residing at Qokolweni Location, in the
district of Mqanduli,
in the Eastern Cape Province. He instituted an
action on 19 February 2016 against the defendant. The claim is based
on unlawful
search, unlawful arrest and unlawful and wrongful
assault. The claim was split into three (3) claims being, Claim A:
related to
unlawful and wrongful search of the plaintiff’s home
including the six-corner house where he was staying, Claim B: related
to unlawful arrest and Claim C: related to unlawful assault and
torture by the police.
[2]
He claimed the following amounts: in relation to Claim A:
R350 000.00, in respect
of Claim B: R50 000.00 and in Claim
C: R250 000.00. The total amount claimed for damages is
R650 000.00.
[3]
Mr Melane appeared for the plaintiff and Mr Nomnyangwana for the
defendant. At the
commencement of the trial the parties applied, by
agreement, for separation of issues relating to merits and
quantum
in terms of Rule 33 (4) of the Uniform Rules of Court, which was
granted.
Plaintiff’s
evidence
[4]
Plaintiff testified that at midnight on 14 May 2015 he was asleep in
a six cornered
room when he heard a knock at the door. He heard the
people knocking shouting “police”. He opened the door.
Inside
the room there was illumination from the television set that
was on since he fell asleep while watching it. He moved towards the
door to try and switch on the light as the light switch was closer to
the door. The police blocked him saying that he was going
to run away
and he retreated.
[5]
One of the police officers switched on the light. There were about
eight to twelve
police officers that entered the room, only one
female police officer was present. They told him that they were
looking for dagga.
He denied any knowledge of dagga and they said
they could smell dagga from the house. He responded by asking “how
does it
smell?”. Some of the police officers started hitting
him with open hands and he was warding off the blows using his hands.
The other police officers were busy searching the room.
[6]
Since he was warding off the blows, the police officers decided to
handcuff him. Some of
those officers continued to assault him and he
fell down on three (3) occasions. The police turned the room upside
down and his
clothes were removed from the wardrobe and scattered on
the floor.
[7]
As he was on the floor he was kicked all over his body. The police
officers used the
handcuffs to lift him up whenever he fell down.
They were searching even behind the paintings or photographs that
were hanging
on the walls. When they could not find dagga, they asked
him about the presence of other people in the main house, a six
-roomed
house. He told them that he was staying alone.
[8]
They asked for the keys for that house. When they opened it, they
realized that there
was no one but they started conducting a search.
They searched everywhere and in every room and in the process threw
her sister’s
clothes all over the place. They turned couches in
that house upside down and looked for holes underneath them. The
police insisted
that he must disclose to them where the dagga was. He
thought that even in that house he fell down about three times as
they continued
to assault him.
[9]
His ears could not hear properly. They took him to the kitchen where
they retrieved
plastic bags from the drawers. They used the plastic
bags to suffocate him. He urinated and defecated on himself. When he
cried
they remonstrated with him. They took him to the shack outside
where fowls are kept. They also searched the shack but found nothing.
[10]
They took him back to the six cornered room. They were laughing and
teasing him for having soiled
himself. They instructed him to take
off the soiled shorts. They removed the handcuffs when they
instructed him to take off
the soiled clothes. He was instructed to
take off his shorts in front of a female police officer. He put on
clean shorts. They
took him out of the house and did not tell him
where they were going.
[11]
They refused to let him phone his sister. He testified that he was
seeing all these police officers
for the first time that evening.
They did not introduce themselves to him but he saw three (3) name
tags and those were, a coloured
police officer by the name of Livers,
one Mbiza and one Mlambo.
[12]
They left with him in a police vehicle. There were about three (3)
police vans parked outside
his home. These police officers,
according to him, also smelt of alcohol. Two police officers sat with
him at the back. There
were five police officers in all and officer
Livers switched on the car radio. When he looked at the car radio,
the time was reflected
as 3h30 am. Officer Livers said he must not
try and narrate or even open a case because when he does that he will
find them there
at the police station. They asked him to disclose the
name of the person or a place that sells dagga. They drove away with
him,
he did not know where they were going and then they just dropped
him off on the side of the road away from his home.
[13]
He said it was a cold night. He was not wearing shoes. He had bruises
all over his body and he
showed to the court two fingers on his right
hand that were crooked. He said he suffered injuries on his back
because he was kicked
on his back and on the waist area, when he was
lying down. He had lumps and bumps on his wrists. He had black
marks on his
wrists which, according to him, were caused by the
handcuffs.
[14]
Upon his arrival at home he phoned his sister who lived in Libode and
went to her . She took
him to the doctor almost fifteen days after
the incident.
[15]
He recalled that on the day he went to the police station in Mqanduli
and upon his arrival
he saw officer Mlambo who refused to open the
case and told him that cases like those are supposed to be handled by
the branch
commander who would only be back on a Tuesday as he was
attending a conference.
[16]
He then waited for the Tuesday and then went back. Upon his arrival
he found the branch commander,
Officer Naidoo. The branch commander
instructed the police officers to open the case. A female officer by
the name of Gova, opened
it. She then handed it over to the
investigating officer.
[17]
After a while, he received a call from one Jimmy Mofokeng of
the Independent Police Investigative
Directorate (IPID). He met with
Mofokeng who took down his statement. One day he again received a
call from Mofokeng who informed
him that they found officers Livers
and Mbiza. He wanted to confirm the number of the police officers who
were involved in the
alleged assault. He reiterated to Mofokeng that
there were between eight (8) to twelve (12) police officers. Nothing
happened with
the IPID case.
[18]
He told the court about his experience as he was running away from
the police, when they dropped
him off on the side of the road. He
felt that he was in harm’s way because he could be a victim to
anyone and he could
have been attacked by people from the village. He
became emotional when he expressed the humiliation he felt when he
soiled himself
and being forced to undress in the presence of a
female officer.
[19]
Mr Nomnyangwana crossed-examined the plaintiff. The cross-examination
centered around the dates,
namely, the 14
th
and 15
th
May. It was put to the plaintiff that the particulars of
claim did not mention 14 May 2015 but 15 May 2015. Plaintiff
was
adamant that because the assault started during midnight on the 14
th
,
it carried on until the 15
th
. He testified that he had
gone up to standard 9 at school. In cross-examination, he was asked
whether the police had asked for
permission to search his premises
and he denied that they did.
[20]
He was asked about the reason why he did not go to the clinic or the
hospital the following day.
His response was that he was still hiding
because he feared for his life. He denied that he opened a case
against the police in
2016. He was questioned about the fact that in
the initial particulars of claim, he did not put down the names of
the three police
officers whose name tags he allegedly saw. He was
adamant that he had mentioned all three (3) police officers by name
to his erstwhile
attorneys.
[21]
He was also questioned that there was no mention of the shack in the
particulars of claim. It
was suggested to him that after the
defendant had discovered certain documents, it was only then that the
particulars of claim
were amended and two names of other police
officers were added. He denied that. He was asked about the
coloured police officer
whether he spoke to him in English or
Isixhosa. His response was that he was speaking Isixhosa,
although he was not fluent
in the language. It was put to him
that constable Livers was not on duty on 15 May 2015. He was adamant
that during the evening
of the 14
th
until the following
day he was present at his home.
[22]
A bundle of documents entitled ‘Better Discovery by the
Defendant’ was admitted as
Exhibit A.
He was questioned
about visiting the doctor much later and about the origins of the J88
form. He testified that he got the J88
form from the police station
and that he delayed going to the doctor because he had no money as he
depended on his sister.
[23]
It was put to him that at page 9 of the J88 form, the name of the
police station and the CAS
number were not recorded. He stated
that he had received that form from the police and it was
completed by the doctor.
It was confirmed under cross-examination
that on the J88 he indicated that he was assaulted on the 14
th
of May 2015.
[24]
The defendant denied that the plaintiff was handcuffed. He was asked
about the fact that the
J88 did not record the injury on the fingers.
He indicated that he did not know why it was not written. He
confirmed that he opened
a case with the police and he recalled that
at some stage he received an SMS message with a number 02/06/2015 on
his phone, although
he was not certain about the number. He did not
recall whether he took the J88 form from the doctor back to the
police station.
[25]
He indicated that he was not aware that one does not pay the doctor
if one has a J88 form. It
was suggested that his evidence was
not supported by the allegations in the initial particulars of claim
where he indicated that
he was arrested at Mqanduli. That changed in
the amended particulars of claim where he alleged that the police
dropped him off
on the way and did not detain him at the police
station. He stated that he was never detained instead he was dropped
off on the
side of the road. It was put to him that the severity of
his assault demanded or warranted him seeing a doctor immediately. He
repeated his evidence that he was scared to leave the house.
[26]
The version of the defendant was put to him, to the effect that ,
the defendant does not
dispute that he was arrested on 14 May
2015 because the police officers were not on duty. It was again
put to him that he
was never searched, assaulted nor arrested by the
police. He denied that his constitutional rights were explained to
him. When
asked why he did not mention that in his evidence, his
response was that he forgot to mention it. It was put to him that if
he
was arrested the police would not drop him on the side of the
road, they would take him to the police station. He was adamant that
everything that happened to him was done by the police.
[27]
In re-examination, he explained that he told the doctor that the
assault had occurred on the 14
th
May 2015 at midnight and that was the same date that he gave to his
erstwhile attorneys. He did not draft the particulars of claim.
He
was not even aware that the particulars of claim mentioned the 15
th
and not the 14
th
.
He was not aware that the erstwhile attorneys had mentioned only the
name of constable Livers in the original particulars of claim.
Thereafter plaintiff closed his case.
Absolution from the
instance
[28]
The defendant applied for absolution from the instance on the basis
that the policemen mentioned
on the day of the plaintiff’s
arrest, were not on duty. Mr Melane submitted that the police
have a case to answer.
After argument the court refused absolution
from the instance. The test for absolution from the instance
was succinctly set
out in
Claude
Neon Lights (SA)Ltd v Daniel
[1]
to
be, “
whether
there is evidence upon which a court, applying its mind reasonably to
such evidence, could or might (not should, nor ought
to) find for the
plaintiff.”
[29]
In
Gordon
Lloyd Page & Associates v Rivera and Another
[2]
,
Harms JA dealt with this test as follows:
“
This
implies that a plaintiff has to make out a prima facie case- in the
sense that there is evidence relating to all the elements
of the
claim- to survive absolution because without such evidence no court
could find for the plaintiff…As far as inferences
from the
evidence are concerned, the inference relied upon by the plaintiff
must be a reasonable one, not the only reasonable one…
Having
said this, absolution at the end of the plaintiff’s case, in
the ordinary course of events, will nevertheless be granted
sparingly
but when the occasion arises a court should order it in the interests
of justice.”
[30]
There was, in my view, existence of evidence that satisfied the
above-mentioned test. It was
for that reason that the defendant’s
request for absolution from the instance was refused.
Defendant’s case
[31]
Defendant led the evidence of Sergeant Hazron Warren Livers. He is a
police officer stationed
at the Mthatha Flying Squad. In 2015 he was
stationed at the Mqanduli police station. He was doing Community
Service Centre (CSC)
and sometimes crime prevention duties. On 15 May
2015 he was not on duty, he was at home. He denied that he visited
the plaintiff’s
home because he was not on duty. He denied that
he assaulted him or that he searched his home.
[32]
He was asked about the whereabouts of Mbiza on that day. He answered
that he was not on the same
shift as Mbiza. He was on relief C and
Mbiza was on relief A or B. He was asked about a policeman known as
Mlambo at the Mqanduli
police station and he answered that there was
no such person at that police station. He denied the plaintiff’s
version. He
explained how a person obtains a J88 form from the police
station. He stated that a person comes to a CSC to report a crime.
Once
they establish that the person has been assaulted, he will be
allowed to open a docket and then the police would issue a J88. He
stated that it is only the police that issue the J88 and no other
department.
[33]
It was put to him that the plaintiff was claiming an amount of
R650 000.00 from the defendant
for damages. His response was
that he was overwhelmed to hear that. When it was put to him that the
plaintiff testified that he
was wearing uniform and a name tag. His
response was that he is well-known in Mqanduli because he used to
assist a lot of people
when it came to accidents and during the
roadblocks. When asked how many coloured male officers were at the
Mqanduli police station
when he was still stationed there. He stated
that he was the only one at that station. He was asked whether he
would have access
to government vehicles if he was not on duty. His
response was that he would not have access at all unless he was
authorized.
[34]
Under cross-examination he stated that he had been in the police
force for eighteen (18) years
and when he was stationed at Mqanduli
his rank was that of a constable. He confirmed that when he was on
duty he would wear uniform.
He didn’t know the plaintiff, he
was seeing him for the first time at court. When asked whether he was
wearing a name tag,
his response was “
when we wear a bullet
proof it covers where the name tag is
.” When asked again
when you wear your uniform, do you wear a name tag? His response was:
Yes I do
.
[35]
When asked about officer Mofokeng of IPID, he stated that he could
not recall that name. He testified
that the plaintiff would be lying
if he implicated him because people lie. He stated that he was well
known in Mqanduli. Thereafter,
the defendant closed its case.
[36]
Mr Melane submitted that the plaintiff had discharged the onus
resting on him. In addressing
the issue of the date between 14
th
and 15
th
, he submitted that, that is not an issue that
would taint the evidence of the plaintiff. In his evidence, plaintiff
stated clearly
that the incident happened on the evening of 14
th
May 2015 and he was tortured, assaulted, his home was searched until
around 3h30 am on 15 May 2015.He submitted that even if there
was an
error on the date, the court would not reject his evidence based
purely on that because his version has not been contradicted.
[37]
When addressing the issue of the particulars of claim, the original
and the amended of particulars
of claim, he submitted that the
plaintiff did not draft the particulars of claim, the erstwhile
attorneys drafted them. He submitted
that the evidence of the
plaintiff stands alone because there is no evidence coming from the
defendant to refute it.
[38]
As far as the evidence of sergeant Livers is concerned, his
submission was that he had come to
court to clear his name. His
evidence also left the evidence of the plaintiff unchallenged. The
plaintiff had testified how the
premises were searched; how he was
assaulted and there has been simply no evidence but a bare denial of
that evidence coming from
the defendant. In this regard he relied on
the case of
R
v Mazema
[3]
.
He submitted that the fact that the plaintiff was taken into the
police van, he was handcuffed behind his back and driven away
against
his will, that was arrest and in this regard he relied on the case of
Netshindama
v Minister of Police
[4]
.
[39]
He submitted that the Court must find that the evidence that was
given by the plaintiff was clear
and acceptable and there is no
evidence on the part of the defendant. He submitted that this is a
typical case where the police
had abused their authority. They have
an obligation to protect the citizens of the country, the plaintiff
was alone at home and
victimized, he argued. He submitted that there
is no doubt that the actions of the police offend against section 10
of the Constitution.
[40]
He conceded that the particulars of claim mention only that when the
plaintiff was suffocated
with a plastic bag he wet himself with urine
only. When the plaintiff was asked about the reason why he did not
mention the fact
that he defecated on himself, his answer was that it
was because he was ashamed and he did not want people to laugh at
him. He
submitted that the search was unlawful and it offended the
provisions of section 12 of the Constitution that everyone has a
right
not to have their property searched. He asked that the Court
must find that the police are liable to compensate the plaintiff one
hundred percent (100%) for all proven damages.
[41]
Mr Nomnyangwana, on the other hand, submitted that the plaintiff both
in his initial and amended
particulars of claim mentioned 15
May
2015. If the date of the 14
th
May 2015 is the date
relied upon then the police were not on duty. He submitted that the
fact that he mentioned only three (3)
police does not support his
evidence. He submitted that there were many contradictions in the
evidence of the plaintiff such as
relying on a wrong date, which made
it difficult for the defendant to plead. He submitted that the
plaintiff never took the J88
from the Mqanduli police station and he
never went to a doctor in Mqanduli. He submitted that the J88 and the
original thereof
always goes with the docket and the members
mentioned were never charged.
[42]
He submitted that there was another contradiction between the times
3h00 and 3h30 am that plaintiff
mentioned. He submitted that sergeant
Livers would not have been able to communicate with the plaintiff
without an interpreter
because he does not speak isi Xhosa. When
asked by the court about the injuries on the wrists of the plaintiff
and the fact that
Dr Khahla who examined the plaintiff had recorded
that those injuries were caused by handcuffs, Mr Nomnyangwana
conceded that the
Court must take that into account because handcuffs
would cause those injuries if one moved whilst being handcuffed. He
submitted
that he could not therefore ask the Court to reject that
evidence.
[43]
He also confirmed that he observed that the plaintiff’s fingers
were crooked and he had
observed them. He said the case of the
plaintiff was not good enough for the damages he was claiming. He
submitted that the Court
should dismiss the claim with costs.
[44]
In reply, Mr Melane submitted that the court must reject the evidence
of sergeant Livers, where
he testified that there was no one by the
name of Mlambo at the Mqanduli police station because the defendant
in his plea had admitted
the names of the police officers. He
submitted that because that issue was never an issue between the
parties, it was never canvassed
with sergeant Livers because it was
an admitted issue by the defendant. He persisted in his submission
that the Court must find
that the police are liable to compensate the
plaintiff.
Discussion
[45]
The court is alive to the fact that plaintiff is a single witness and
the cautionary rules is
assessing his evidence should apply. In
De
Klerk v Minister of Police
[5]
,
the court dealt with the rules and test applicable in delictual
claims. It stated:
“
[29]
Subject to the usual rules of
delictual liability, a wrongdoer is liable for all the harmful
consequences of his or her wrongful act. As will become apparent
later, the content of the fault requirement may play a role in
limiting liability, but for the moment I shall focus on the elements
of factual and legal causation. Factual causation is tested
by asking
whether the harmful consequence would have occurred, but for the
wrongful act. Legal causation (or remoteness of damage)
places a
policy- laden limit on the factual consequences for which the
wrongdoer is held liable.
[30]
The test for legal causation is supple, consistent with its
foundation of public policy…This
court has held that, in
applying the supple test, a court should have regard to these and
other tests, but should not apply them
dogmatically…”
[46]
Counsel for the defendant submitted that the plaintiff failed to
prove that he was assaulted
by the police and because that fact was
not proved then the claim must fail. I disagree. It would place an
insurmountable burden
on the plaintiff if the law would expect a
plaintiff to identify each policeman that allegedly caused him harm
with precision.
[47]
In
Minister
of Safety and
Security
v Van Duivenboden
[6]
,
the court held that a plaintiff is not required to establish the
causal link with certainty, but only to establish that the wrongful
conduct was probably a cause of the loss, which calls for a sensible
retrospective analysis of what would probably have occurred,
based
upon the evidence, and what can be expected to occur in the ordinary
course of human experience.
[7]
[48]
The plaintiff gave his evidence confidently, in a very clear and
satisfactory manner. He became
very emotional when recalling the
incident and the treatment that he suffered from the police who had
visited his home. The issue
of the date, as far as this court is
concerned, is, as submitted by Mr Melane, a non-issue. I say so
because in the letter of demand
to the defendant which has been put
up in the bundles, the demand makes it very clear that the offence
complained of happened on
the 14
th
of May 2015 at about
00h00 at Tunzini Location, Qokolweni Administrative Area. In the same
demand the names of constable Livers
and Mbiza were mentioned. That
letter of demand was issued on 28 October 2015. Any suggestion that
the 14 May 2015 is a fabrication
on the part of the plaintiff lacks
merit.
[49]
Exhibit “B” is a J88 form which was also handed in by
consent. That exhibit bears
the following information: an official
stamp written “The
Commander, CSC 28 May
2015, P.O
Box Mqanduli.”
On the J88, the following is written by Dr
Khahla: “
Relevant medical history and medication assaulted
and handcuffed by police, night of 14 May 2015”.
The
clinical findings: “
Allegedly assaulted by police in the
night of 14 May 2015 with kicking and fists and suffocated him using
plastic bags and handcuffed
him throughout this process and left him
far from home in a remote area. It was cold and he had a pyjama
only”:
[50]
The report made by the doctor is consistent with the evidence of the
plaintiff. The doctor
would not record each and every minute
detail of the events but he or she had captured information relevant
to the cause of the
plaintiff’s injuries. On the
pictorial, the doctor depicted healed bruises on the plaintiff’s
back towards the
waist and the handcuff marks on both wrists. There
were also bruises around the ribcage on the left-hand side. The
crooked fingers were observed by the defendant’s legal team and
the court. The explanation that at the time the plaintiff
went to the
doctor his fingers were swollen was not challenged. In fact,
defendant’s counsel recognized the gravity of the
injuries on
the plaintiff and correctly made the concession that the medical
evidence cannot be ignored.
[51]
His evidence was also corroborated by sergeant Livers because he made
it clear that only the
police issue a J88 once they establish that a
person was assaulted. It is not too far-fetched to find that the J88
was issued by
the police because they had established that plaintiff
was assaulted. When the issue of whether the plaintiff
had taken
the J88 to the police after it was completed, he was
clearly not aware of what happened, and his answer was very direct
and he
indicated that he could not recall whether it was taken back.
But it is understandable because he was not only dealing with the
police to whom he had laid a charge but there was also IPID that was
involved in the investigation of his complaint. In any event
the
report was handed in by consent.
[52]
The evidence of sergeant Livers related to a wrong date and did not
controvert the evidence of
the plaintiff. The date of 14 May
2023 does not even appear on a schedule attached to “Exhibit A”
, although
according to the calendar it fell on a Thursday, a week
day. The defendant decided to simply confine himself to the 15
th
,
although the particulars of claim made it clear ‘
on or
about’.
When a party is confronted with such a pleading,
the party is enjoined the invoke the provisions of Rule 21 and
request further
particulars. In this case, if the date of the 14
th
was being heard for the first time, I would perhaps agree with
counsel for the defendant that, that was not made clear, but in
this
instance there was a demand which made specific reference to the 14
th
of May 2015. There was also a medical report which also made
reference to that date.
[53]
In so far as Sergeant Liver’s evidence is concerned, he
clearly, as correctly pointed out
by Mr Melane had only come to clear
his name. Unfortunately, his evidence fell short of disturbing
the reliability of the
plaintiff’s evidence. Instead it
corroborated it in the respects mentioned above. The defendant was
confronted with direct
evidence implicating his employees of unlawful
and wrongful acts. He failed to rebut the evidence of the plaintiff.
[54]
The plaintiff did not implicate the police falsely. I say so
for these reasons:
(i)
the defendant’s counsel admitted that the marks on the
plaintiff’s wrists would have been caused by handcuffs. That
corroborated the plaintiff’s evidence. That evidence is also
corroborated by the medical report;
(ii)
the defendant had admitted that there were police officers known as
Mlambo and Mbiza in the police service in its plea. Sergeant
Livers
also admitted the existence of Mbiza although he denied Mlambo.
(iii)
The defendant decided not to call Mbiza although on sergeant Liver’s
evidence Mbiza would not have been on the same
shift with him. The
defendant made an election not to call Mbiza and Mlambo. That means
that whatever evidence had been given by
plaintiff about Livers,
Mbiza and Mlambo in relation to the 14
th
May and the events of that day remains unchallenged.
(iii)
The fact that there is a J88 which, on sergeant Livers version, gets
issued by the police only , corroborates the evidence
of the
plaintiff that he had received it from the police. On sergeant
Liver’s evidence the police would have established
that the
plaintiff was assaulted hence they issued the J88. The fact that
there was no CAS number is not something that can be
answered by the
plaintiff because it is the police that must issue a CAS number. The
plaintiff had indicated that he did receive
an SMS with a CAS number
as aforementioned. That evidence was not disputed.
[55]
The fact that the plaintiff only mentioned having wet himself with
urine and had not mentioned
that he had soiled his shorts, is
consistent with his evidence that he was overwhelmed with shame as he
was naked in the presence
of a female officer. I do not regard that
as a contradiction because in any event particulars of claim are not
evidence. Given
the fact that the police deny that they were on duty
on that day, whether that had been mentioned or not would not have
made a
difference because they would not have been able to refute the
evidence of the plaintiff.
[56]
In the circumstances, I accept the evidence of the plaintiff as being
reliable and I accept that
he was an honest witness. His evidence
remains unchallenged. The plaintiff has succeeded in
discharging the onus resting
on him and has proved that the police
searched his home which has a six-bedroomed house, his six bedroomed
home ( the main house)
and a shack outside without consent. I
accept that he was humiliated, assaulted and belittled in a manner
which he had testified
in the presence of a female officer and by
eight to twelve police officers. He tendered reliable evidence which
is corroborated
by the medical evidence to show that it is the police
who inflicted harm on him.
[57] I
am of the view that from the moment the police entered his home at
that time of the night , they restricted
his freedom of movement.
They placed handcuffs on him, assaulted him, searched his home for
dagga, ransacked the wardrobes and
threw his clothes on the floor,
taking him along when they searched the other house and shack,
instructing him to take off the
soiled shorts while watching him and
further placing him in a vehicle with them. They had, by their
unlawful and wrongful
actions placed him under arrest.
[58]
In
Booysen
v Minister of Safety and Security
[8]
,
the Constitutional Court stated:
“
The
test essentially consists of two questions: first, whether the
employee committed the wrongful acts solely for his or her own
interests or those of the employer (the subjective question); and
second, if he or she was acting for his or her own interests,
whether
there was nevertheless a “sufficiently close link’
between the employee’s conduct and the business of
his
employment (the objective question).”
[59]
When the police arrived at his home they announced their presence by
shouting: “police”.
Thereafter they conveyed to him the
purpose of their presence there, they were looking for dagga.
They embarked on the search
and on the assault on the plaintiff with
the purpose of inducing him to tell the police where the dagga was.
They searched
all the other structures situate on that homestead.
They were wearing police uniform with their name tags on. They had
their service
firearms on them. They had handcuffs which they used to
restrain the plaintiff. They had driven in police vehicles to get to
the
plaintiff’s home.
[60]
These factors clearly demonstrate that those police officers were
performing their duties as employees
of the defendant and were thus
furthering the interests of their employer, the defendant. Even if
they were on a frolic of their
own abusing their power for their own
interests, their actions were such that they were closely connected
to their work as police
officers. The plaintiff succeeded in
proving that it is the police that committed the unlawful and
wrongful acts. He also
proved that in the process he suffered
physical, and emotional harm, degradation of his dignity and an
infringement of his constitutional
rights.
[61]
The treatment that the police meted out to him was harsh, brutal,
unfair, cruel and unconstitutional.
It is for these reasons that I
find that the plaintiff is entitled to be compensated one hundred
percent (100%) by the defendant
for all proven damages.
[62] On the issue of
costs, there is no reason to depart from the usual rule that the
successful party should be awarded costs.
Plaintiff as a
successful party is entitled to costs of suit.
[63]
In the circumstances, I make the
following Order:
63.1
The Defendant is liable to compensate the plaintiff one
hundred percent (100%) for all proven damages, arising
from his
unlawful search of his home, unlawful arrest and wrongful assault
.
63.2
Defendant is ordered to pay costs of suit.
T.V NORMAN
JUDGE OF THE HIGH
COURT
Matter heard on 18 &
19 April 2023
Judgment Delivered on 25
April 2023
APPEARANCES
For the
PLAINTIFF
:
ADV
MELANE
Instructed by
:
L.L KETANI ATTORNEYS
SUITE
138 & 140
ECDC
BUILDING
CNR
YORK & ELLIOT STREET
MTHATHA
REF:
LLK/06/CIV/DM-HC
For the DEFENDANT
: ADV
NOMNYANGWANA
Instructed by
:
THE STATE ATTORNEY
94
SISSON STREET
FORTGALE
MTHATHA
EMAIL:
BShumane@justice.gov.za
REF:
325/16-A6S (Mrs Shumane)
[1]
1976
(4) SA 403
( A) at 409 G-H.
[2]
[2000]
4 ALL SA 241
(AD) at 243B
[3]
1948
(2) SA 152
(E) at page 154.
[4]
2020
ZAGPPHC page 138 delivered on 20 March 2020.
[5]
2018
(2) SACR 28
(SCA) at page 40 para 29.
[6]
2002(6) SA 431 (SCA) [
2002] 3 ALL SA 741
;
[2002] ZASCA 79)
para 25.
[7]
EF v Minister of Safety and Security
2018 (2) SACR 123
SCA.
[8]
2018 (2) SACR 607
CC at para [11].