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[2023] ZAECMHC 23
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Nqadala v Minister of Police (CA08/2022) [2023] ZAECMHC 23 (25 April 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION – MTHATHA)
CASE
NO.: CA08/2022
Matter
heard on: 13 February 2023
Judgement
delivered on: 25 April 2023
(1)
REPORTABLE: YES
(2)
OF INTEREST TO OTHER JUDGES: YES
(3)
REVISED.
In
the matter between: -
YONGAMA
NQADALA
Appellant
and
MINISTER
OF POLICE
Respondent
JUDGMENT
SMITH
J:
[1]
This is an appeal against the judgment of Tokota ADJP, delivered on 5
October 2021, and dismissing the appellant’s
claim for damages
arising from his alleged assault and unlawful arrest and detention by
a member of the South African Police Services
at Cala on 16 November
2017. In his particulars of claim the appellant alleged that he was
wounded in the legs by the police officer
who fired shots at him
while he was running away. He was thereafter unlawfully arrested and
taken to a hospital where he was admitted
and eventually discharged
on 7 December 2017. After his discharge from hospital he was detained
in police cells and eventually
only released on 31 January 2018. The
learned judge granted leave to appeal against the dismissal of the
assault claim and the
finding that the appellant’s detention
from 7 December 2017 to 17 January 2018 was lawful. He refused leave
to appeal in
respect of the finding regarding the lawfulness of the
detention from 17 January 2018 to 31 January 2018.
[2]
Tokota ADJP was justifiably critical of the manner in which the
appellant pleaded his case and described his
particulars of claim as
‘a rambling preview of the evidence proposed to be adduced at
trial [rather] than a statement of
the material facts relied upon’.
Because it was drafted in the form of an affidavit, the particulars
of claim contain a plethora
of unnecessary factual averments that
constitute evidentiary matter instead of the concise and succinct
statement of material facts
required to sustain a cause of action.
The learned judge nevertheless found that the pleading, reasonably
construed, set out a
valid cause of action with sufficient clarity to
enable the respondent to plead thereto. The respondent did not lodge
a counter-appeal
against that finding and the matter must therefore
be decided on the basis that the appellant’s case was properly
pleaded.
In the event, the respondent pleaded to both claims,
admitting the assault, but averring that a police officer, namely
Siyamcela
Mendu (Mendu) was acting in self-defence against the
appellant who attacked him with a knife. In respect of the unlawful
arrest
and detention claim the defendant averred that the appellant
was arrested in terms of a warrant of arrest issued when he failed
to
appear in court on the trial date. His case was remanded
in
absentia
while he was in hospital, and after his discharge the
investigating officer consulted a prosecutor who determined that the
appellant
must be brought before court on the remand date, namely 17
January 2018. The appellant did eventually appear before a magistrate
on that day and the enquiry into his failure to appear in court was
commenced, but not finalised. It was eventually only finalised
on 31
January 2018, when his explanation was accepted and he was released
from custody.
[3]
The pre-trial minutes evince that the respondent admitted ‘the
assault arrest and detention, which actions
the Defendant considers
as justified under the circumstances’. The issues which fell
for determination were defined as ‘[w]hether
the Plaintiff’s
assault, arrest and detention by Police on 16 November 2017 were
unlawful in the circumstances’. The
parties also agreed to
separate the issues of liability and quantum, and in respect of the
duty to begin they agreed that ‘[t]he
Plaintiff bears the onus
to begin, and the onus of proof in respect of the assault on 11 July
2017, which onus will shift to the
Defendant in respect of the
assault, arrest and detention on 16 November 2017.’ The claim
in respect of the assault that
allegedly took place on 11 July 2017
was abandoned at the commencement of the trial, leaving the
respondent with the onus of justifying
the assault that allegedly
took place on 16 November 2017.
[4]
It is established law that once a defendant admits an assault but
pleads justification by way of self-defence,
the onus shifts to him
or her to prove on a balance of probabilities that he or she was
acting in self-defence and that the force
used to repel the attack
was reasonable and commensurate with the plaintiff’s
aggression. (
Mabaso v Felix
1981 (3) SA 865
AD)
[5]
An interference with a person’s physical liberty is also prima
facie unlawful. ‘Thus once the
claimant establishes that an
interference has occurred, the burden falls upon the person causing
that interference to establish
a ground for justification’.
(
Zealand v Minister of Justice
[2008] ZACC 3
;
2008 (6) BCLR 601
CC). These
principles, are unquestionably of application in the present matter.
[6]
The pre-trial agreement to the effect that the appellant bore the
onus to begin was therefore inconsequential
and the respondent
indubitably bore the onus in respect of both claims. Tokota ADJP’s
statement to the effect that ‘the
onus to prove that the
plaintiff was unlawfully assaulted rested on him’ is therefore
at odds both with established legal
principles and the abovementioned
binding pre-trial agreements. As I shall demonstrate below, this
unfortunate misdirection on
the part of the learned judge had
profound consequences for the basis on which he evaluated the
evidence and his extensive credibility
findings. To this end, a brief
exposition of the material facts will suffice.
[7]
The appellant testified and also called three witnesses, namely his
friends Sandla Maholwana (Maholwana) and
Nkosiyoxolo Mabhuti Gamzana
(Mabhuti), as well as his sister, Nohuthula Nqadala. While the
evidence of Maholwana and Mabhuti related
to the circumstances of the
shooting and the appellant’s arrest, Ms Nqadala testified only
regarding her attempts to persuade
the police to take the appellant
to court after his discharge from hospital.
[8]
The appellant testified that he, together with Maholwana and Mabhuti
were walking to a friend’s house
in Cala, Extension 51, when
they came across an unmarked police vehicle driven by Mendu. He had
known Mendu well since they had
previously worked together. Mendu
instructed him to stop, but he refused. He said that Mendu and other
police officers had previously
assaulted him and he feared a
repetition if he complied with the former’s instruction. He
then fled. Mendu gave chase and
fired shots at him, hitting him in
the legs while he was in the process of mounting a fence. After he
was hit his legs felt weak
and he raised his arms in surrender. Mendu
then caught up with him, instructed him to lie down and handcuffed
his arms behind his
back. Mendu then fired more shots at him while he
was lying on the ground. Mabhuti interposed himself between the
appellant and
Mendu saying that Mendu should rather shoot him. Mendu
had fired five shots and the firearm jammed when he attempted to fire
the
sixth shot. Another police officer then arrived in a marked
police vehicle and the appellant was transported to the police
station.
At the police station he saw Mendu going into his office.
Upon his return Mendu was wearing plastic gloves and carried an Okapi
knife. The police attempted to make him take hold of the knife, but
he refused. Mabhuti pleaded with Mendu not to stab the appellant.
[9]
The appellant was then taken to the Cala Hospital where he was
admitted. He was eventually transferred to
the Frere Hospital and
discharged on 7 December 2017. His wounds were serious and there was
a possibility that his leg might be
amputated. Upon his discharge
from hospital he was first kept in the Fleet Street holding cells and
thereafter transferred to the
Cala police cells where he was kept
from 9 December 2017 until his release on 31 January 2018. On 17
January 2018, he appeared
in court and his case was postponed to 31
January 2018 for further enquiry into his failure to appear in court.
The enquiry was
completed on 31 January and he was released on
warning.
[10]
Maholwana and Mabhuti corroborated the appellant’s testimony in
all material respects. They confirmed that they
were present when the
appellant was shot while running away from Mendu; that Mendu did fire
shots at the appellant after he had
been handcuffed and was lying on
the ground; that Mabhuti had tried to intervene on behalf of the
appellant; and that the appellant
did not carry a knife. They also
corroborated the appellant’s testimony regarding the attempt by
Mendu to plant a knife on
the appellant at the police station. As
mentioned, Ms Nqadala’s uncontested testimony related mainly to
her attempts to persuade
the police to take the appellant to court
after his discharge from hospital on 7 December 2017.
[11]
Mendu was the only witness to testify on behalf of the respondent. He
is a detective constable and stationed at Cala.
During the absence of
the investigating officer in a murder case in which the appellant was
one of the accused, he was tasked with
the responsibility of
continuing with the investigations. As part of his duties he was
called upon to arrest the appellant in terms
of a warrant of arrest
that was issued after he had failed to appear in court.
[12]
On 16 November 2017 he received a call from Maholwana who informed
him that the appellant was at his house. He and one
Constable Tikana,
then proceeded to Maholwana’s house. On their way there they
saw the appellant and Mabhuti walking in the
street. He stopped the
vehicle next to them and requested the appellant to stop. The
appellant, however, did not comply and instead
fled. He gave chase
and followed the appellant into the yard of a nearby house. He
eventually caught up with the appellant and
explained to him that he
was a police officer and that he had a warrant for his arrest. He
told the appellant to raise his arms
and took out his handcuffs,
holding them in his right hand and his firearm in his left hand. He
then saw the appellant advancing
towards him while wielding a knife
in a stabbing position. He retreated while firing a warning shot. The
appellant was, however,
undeterred. Realising that his life was in
danger, he fired shots at the appellant, aiming for his legs. He had
no option but to
shoot the appellant since he was cornered and his
life was threatened. The knife was taken from the appellant and
handed to one
Warrant Officer Kiwana. He confirmed the appellant’s
testimony regarding his admission to the Cala and Frere hospitals and
his subsequent appearance in court. He said that after the appellant
was discharged from hospital on 7 December 2017, he discussed
the
matter with the prosecutor who told him that the case had already
been remanded to 17 January 2018 and that the appellant should
be
taken to court on that day.
[13]
The court a quo’s judgment reflects a misapprehension regarding
the evidentiary burden which resulted in an overly
critical analysis
of the evidence adduced by and on behalf of the appellant. It
commences with an analysis of the evidence on the
basis that ‘the
starting point is the evidence of the plaintiff and his witnesses’,
and conveys in sweeping terms that
they were ‘prone to
exaggeration to the extent that the court wondered if some of the
stories were figments of imagination
making it difficult to
distinguish the truth from fiction’. Examples mentioned of this
inclination to exaggerate are the
appellant’s assertion
regarding the threat of amputation (but for his mother’s
intervention) and the evidence that
Mabhuti had thrown himself onto
the appellant in an attempt to stop Mendu from shooting him. The
judgment then concludes that by
‘merely looking at the
injuries’ it is clear that the evidence regarding the
possibility of amputation was ‘far
from the truth’, and
that the evidence relating to Mabhuti’s alleged intervention
was false ‘if regard is had
to the evidence of Mabhuti who
denied that’.
[14]
Mr
Cole
SC, who together with Mr
Mbembe
, appeared for
the appellant, correctly submitted that it was not possible to
exclude the possibility of amputation merely by looking
at the J88
form. That form reflects that the appellant sustained severe injuries
to the lower limbs. There were multiple wounds
on the lateral aspect
of the left leg, two wounds on the lateral aspect of the right thigh
and two wounds on the medial aspect
of the thigh as well as a
comminuted fracture of the distal femur. Thus, if anything, the
medical evidence tended to support the
evidence regarding the
possibility of an amputation.
[15]
The finding that Mabhuti had denied that he had thrown himself onto
the appellant suggesting that he should rather be
shot, is, with
respect, also factually incorrect. Mabhuti had confirmed that he
attempted to intervene in the line of fire in order
to shield the
appellant. In fact, the judgment correctly states at para 26 that
Mabhuti had testified that Mendu had ‘attempted
to push him
away as he was trying to body shield the plaintiff’.
[16]
Augmenting the criticism of the appellant and his witnesses’
testimonies, the judgment points out the following
‘contradictions
within and outside the plaintiff’s evidence’:
(a)
they
all testified that the police vehicle was unmarked while in the
particulars of claim it is averred that it was a marked vehicle;
(b)
the
appellant had said that Maholwana tried to stop him from running
away, while Maholwana denied this;
(c)
in
the particulars of claim it is averred that Mendu insulted the
appellant while Maholwana denied that this had happened;
(d)
the
appellant conceded that he ran around the house when he was chased by
Mendu but Maholwana denied it;
(e)
the
appellant had testified that Mabhuti had thrown himself on top of him
but Mabhuti denied this;
(f)
in
the particulars of claim it is stated that Mendu took the firearm
from another police officer, but this averment was contradicted
in
their testimonies; and
(g)
Maholwana
denied the appellant’s testimony that the firearm had jammed
when Mendu attempted to fire the sixth shot.
[17]
Apart from the fact that generally minor and insignificant
discrepancies between the oral testimony of a witness and
factual
averments in pleadings cannot serve as justification for rejecting a
witness’s testimony, all the discrepancies mentioned
in the
judgment by the learned trial judge are immaterial and
inconsequential. To my mind it is unimportant whether the police
vehicle was marked or unmarked since it was common cause that Mendu
arrived at the scene in a police vehicle. So also is the issue
of
where Mendu got the firearm. The fact that he had a firearm, had
fired shots and wounded the appellant were not in dispute.
It is also
not necessary for the court to make any findings in respect of the
issues relating to whether Mendu insulted the appellant,
what
Maholwana may or may not have said to the appellant and whether
Maholwana had seen the appellant running around the house.
These are,
with respect, all peripheral and immaterial issues that should not
have had any bearing on the learned judge’s
evaluation of the
evidence.
[18]
The impact of the court a quo’s misdirection regarding the
issue of the onus is further borne out by the brevity
of its analysis
of Mendu’s testimony. Mendu’s evidence is described in
the judgment as ‘simple and straightforward’,
even
commenting that ‘he was cool and collected and answered
questions in a well-mannered fashion’. Manifestly absent
from
the judgment is the acknowledgement that Mendu’s testimony had
to be evaluated on the basis that the onus was on the
respondent to
justify the assault and that the appellant’s testimony,
corroborated by two witnesses, had established that
the appellant did
not carry a knife and that Mendu had attempted to plant a knife on
the former. The issue of the knife was thus
vitally important in the
context of Mendu’s version. Mendu had testified that he had
shown the knife to Tikana and that the
latter had taken it to the
police station. It was common cause that Tikana had been available at
all material times to give that
vital evidence. He was not called and
neither was there any attempt to explain why not. In these
circumstances the court is justified
in drawing the conclusion that
the reason why Tikana was not called was because he would not have
corroborated Mendu’s version
regarding the presence of a knife.
(
Elgan Fire Clays v Webb
1947 SA 744
AD at 750)
[19]
Since the learned judge made various credibility findings against the
appellant and his witnesses, it is perhaps necessary
to restate the
legal principles applicable to an appeal court’s approach to
factual and credibility findings by the trial
court. In
S v Hadebe
1997 (2) SACR 641
(SCA) at 645e-f, the Supreme Court of Appeal stated
that: ‘In short, in the absence of demonstrable and material
misdirection
by the trial Court, its findings of fact are presumed to
be correct and will only be disregarded if the recorded evidence
shows
them to be clearly wrong.’
[20]
However, where the reasons for the findings are seriously flawed, a
court of appeal should not overemphasize the advantages
enjoyed by a
trial court and shy away from interfering with those findings, so as
to avoid rendering the appellant’s right
of appeal illusory.
(
Santam v Biddulph
2004 (5) 586 (SCA) at para 5)
[21]
The learned trial judge criticised the appellant for being impatient,
prone to exaggeration, being evasive and avoiding
answering
questions. It has already been demonstrated above that insofar as the
contended tendency to exaggerate relates to the
appellant’s
evidence in respect of the possibility of amputation of one of his
limbs, that it is unjustified. Regarding the
finding that he was
evasive, Mr
Cole
has correctly pointed out that this finding
is not supported by the recorded evidence. The criticism that he
often complained about
gestures made by Mendu is also without
justification. The record clearly indicates that he was distracted by
gestures made by Mendu
and had sought to draw the presiding judge’s
attention to them. In addition, it is difficult to conceive how the
observation
that at times ‘his eyes appeared to be somehow
protruding from his face’ can possibly provide the basis for an
adverse
credibility finding against the appellant. Similarly the
finding by the court a quo that Maholwana had ‘in most
instances
refused to answer questions’ is also not borne out by
the recorded evidence.
[22]
Additionally, while also of the view that it was improbable that
Mendu would have shot an unarmed man the court a quo,
however, did
not explain why it regarded as more probable the version that the
appellant had charged at Mendu with a knife despite
the fact that he
had a firearm, literally having brought a knife to a gunfight.
According to that version the appellant had strangely
continued his
charge despite the fact that Mendu was shooting directly at him and
after being hit several times.
[23]
In summary then: I am of the respectful view that the factual
findings in the judgment of the court a quo were tainted
by the
court’s misapprehension regarding the incidence of the onus;
that the adverse credibility findings are not supported
by the
recorded evidence and that there was an impermissible justification
for rejecting the evidence of the appellant and his
witnesses on the
basis of immaterial and inconsequential discrepancies. The findings
that ‘the plaintiff carries the burden
to prove his case on a
balance of probabilities that the injuries he sustained were as a
result of an unlawful assault by the police’
and that ‘he
failed to discharge that onus,’ are with respect wrong in law
and fundamentally undermines all the factual
and credibility
findings, as are manifest in the judgment. As mentioned above, it is
trite that the respondent bore the onus of
proving that Mendu had
acted in self-defence and his failure to call Tikana or any other
by-stander to corroborate his version
that the appellant had carried
a knife means that he had failed to discharge that onus.
[24]
I now turn to consider the claim for unlawful arrest and detention.
While the appellant initially asserted that his detention
was
unlawful for the entire period following his arrest, during the
course of the trial his claim was limited to the period following
his
discharge from hospital until his release on 31 January 2018. It is
common cause that Ms Nqadala had pleaded with the police
to arrange
for the appellant to appear in court immediately after his discharge
on 7 December 2017. Mendu had testified that he
consulted the
prosecutor on 7 December 2017 and that the latter told him that the
case had already been remanded
in absentia
and the appellant
should therefore be brought to court on the remand date, namely 17
January 2018. It is common cause that he was
in fact brought before a
magistrate on that day and the inquiry into his failure to appear in
court commenced but could not be
finalized. His case was then
postponed to 31 January 2018, when the enquiry was finalized and he
was released.
[25]
Tokota ADJP, relying on a dictum in
R v Holliday
1924 AD 250
regarding the independence and responsibilities of prosecutors, held
that Mendu was entitled to rely on the prosecutor to determine
the
next step after the appellant was discharged from hospital. The
prosecutor, being responsible for the institution of prosecutions
and
their conduct, was empowered to determine when the appellant would
appear in court. Mendu was accordingly entitled to detain
the
appellant in terms of the court order postponing his case to 31
January 2018, or so the learned judge reasoned.
[26]
I respectfully disagree with this reasoning. It is trite that the
only reason why the appellant was not taken to court
within the
constitutionally prescribed period was because he was in hospital. In
the ordinary course of events he would have been
brought before a
magistrate for the enquiry into his failure to appear in court and
would in all probability have been released
on the same day. The
warrant of arrest was specifically issued to secure the appellant’s
attendance at court in order for
him to explain his failure to appear
on the trial date. The police were accordingly constitutionally
obligated to arrange for his
appearance in court as soon as possible
after he was discharged from hospital and, in any event, not later
than 48 hours thereafter,
in terms of section 35 (1) (d) of the
Constitution. It is trite that this is achieved by requisitioning a
detainee for appearance
in court. While it is the responsibility of
the prosecutor to enrol the case for hearing, he or she has no power
to make a determination
regarding the timing of the appearance
outside the prescribed time period or to declare that the appellant
must wait for the remand
date. Those are determinations that can only
be made by a judicial officer. The chain of illegality could thus
only be broken once
the appellant had been brought before a
magistrate for the enquiry into his failure to appear in court. (
De
Klerk v The Minister of Police
2020 (1) SACR 1
CC). The
respondent is accordingly not entitled to rely on the prosecutor’s
overreach of his prosecutorial authority in order
to escape
liability.
[27]
However, the appellant’s contention that his detention was
unlawful for the full period until his release on 31
January 2018 is
untenable. It is common cause that he was lawfully arrested in terms
of a valid warrant of arrest. There can accordingly
be no basis for
the contention that his detention was unlawful for the entire period
up until his release from prison. The unlawfulness
of his detention
arose as result of the failure by the police to bring him before a
magistrate within the constitutionally prescribed
period after his
discharge from hospital. It is common cause that he was brought
before the magistrate on 17 January 2018 for the
commencement of the
enquiry into his failure to appear in court. The chain of illegality
was accordingly broken at that point,
at least insofar as the
liability of the respondent is concerned.
[28]
The failure by the police to bring the appellant before a magistrate
despite repeated requests by his sister, Ms Nqadala,
thus rendered
unlawful his detention from 7 December 2017 until his appearance in
court on 17 January 2018.
[29]
The appeal accordingly succeeds and the following order issues:
1.
The
appeal is upheld with costs, including the costs of two counsel.
2.
The
order of the court a quo is hereby set aside and replaced with the
following order:
(a)
The
defendant shall be liable for 100% of the Plaintiff’s proven
damages arising out of the injuries the Plaintiff sustained
when he
was shot by the police on 16 November 2017, and further arising out
of his unlawful detention from 7 December 2017 to 17
January 2018.
(b)
The
defendant shall pay the Plaintiff’s costs of suit.
(c)
The
quantification of the above damages is postponed
sine
die
.
JE
SMITH
JUDGE
OF THE HIGH COURT
I
agree.
S
RUGUNANAN
JUDGE
OF THE HIGH COURT
I
agree.
D
POTGIETER
JUDGE
OF THE HIGH COURT
Appearances:
Counsel
for the Appellant:
Adv. S. Cole SC
:
Adv J.J. Mbembe
:
Magqabi Seti Zita Attorneys
No.
22 Blakeway Road
MTHATHA
(Ref.:
Mr. Magqabi/by/C-6255/18)
Counsel
for the Respondent: Adv.
S. Sintwa
:
The State Attorneys
Broadcast
Building
94
Sisson Street
Fort
Gale
MTHATHA
(Ref.:
385/19 – A8N (Ms. Nyangiwe)