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[2022] ZAECMKHC 60
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Nyamanda v Minister of Police (2400/2009) [2022] ZAECMKHC 60 (6 September 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, MAKHANDA)
Case
No: 2400/2009
In
the matter between:
SISA
SYDNEY
NYAMANDA
Plaintiff
And
MINISTER
OF POLICE
Defendant
JUDGMENT
BESHE
J:
[1]
Plaintiff initiated an action
for damages against the defendant in connection with an incident
that
occurred on the 18 July 2008 at or near Joza Township in Makhanda.
Initially, plaintiff’s claim fell under two heads,
being: (i)
unlawful arrest and detention and (ii) wrongful and unlawful assault.
Both delicts were alleged to have been perpetrated
by members of the
South African Police Service who were acting within the scope of
their employment as servants of the defendant.
The claim for unlawful
arrest and detention has since been abandoned by the plaintiff. The
court is now called upon to determine
whether the plaintiff has a
claim against the defendant for assault.
[2]
Plaintiff pleaded that he was
unlawfully assaulted by members of the SAPS whose full and
further
particulars are unknown to him except that they included
Warrant
Officers Siebriets
,
Sweeney
and
Oelofse
. He further
pleaded that he was assaulted by means of being doused with pepper
spray on his face and eyes, punched and kicked with
booted feet
repeatedly on his body even after having been handcuffed.
[3]
Defendant in turn denied that
plaintiff was wrongfully and unlawfully assaulted by its
members. In
amplification thereof pleaded that members of the defendant only used
reasonable, necessary and minimum force in the
course of arresting
the plaintiff who was avoiding a lawful arrest effected on him by
members of the defendant. The use of pepper
spray is admitted by the
defendant it being alleged that it was used in a bid to overcome
resistance by the plaintiff.
Common
cause factors
[4]
The plaintiff and his wife were
both members of the defendant at the time of the incident.
During the
evening in question, plaintiff’s wife was on night duty whilst
plaintiff was home. Both were attached to the Grahamstown
Police
Station. Plaintiff was visited by
Colonel Cassim
(
Cassim
)
together with
Captain Mamothubi
(
Mamothubi
) who were
also stationed at Grahamstown Police Station. The intention was to
take the plaintiff to the police station in connection
with a case or
inquiry that had been opened by a
Director Moyakhe
. It appears
to be common cause that present at the scene were also four to five
other police vehicles and approximately ten policemen
in addition to
Cassim
and
Mamothubi
. The ten or so officials were
surrounding plaintiff’s yard. Plaintiff,
Mamothubi
and
Cassim
proceeded to the motor vehicle in which the two
officials (
Mamothubi
and
Cassim
) were travelling. It is
common cause that plaintiff later disembarked form the said motor
vehicle. The versions of the parties
diverge as to what happened
thereafter.
Evidence
in support of Plaintiff’s case
[5]
Three witnesses testified in
support of the plaintiff’s case. A medical report that
was
compiled by
Doctor Santhia
who examined the plaintiff was also
handed in by agreement between the parties. Witnesses who testified
in support of plaintiff’s
case were: The plaintiff and his two
neighbours
Messrs Makina
and
Mahabeni
a retired petrol
attendant and male nurse aged 72 years and 63 years respectively.
[6]
According to the plaintiff,
following discussions he had with
Cassim
and
Mamothubi
in their motor vehicle whilst waiting for his wife to be dropped off
from work so that their child would not be left alone, he
needed to
go and get a document that he mentioned during the discussions, from
his house. He disembarked from the car and proceeded
towards his
house. It was at that stage that he met five policemen. He was told
he was under arrest, when he asked why he was being
arrested, the
response he got was being pepper sprayed, pushed to the ground,
pinned down, handcuffed, kicked and trampled. All
throughout the
assault he was pleading with his colleagues not to assault him. After
the assault which took place inside his yard
he was made to get up.
At that stage, he could not see. Once outside his yard he was once
again caused to fall, this time on a
heap of sand and his colleagues
continued to assault him. They stopped after his wife who by then had
arrived at the scene, screamed
asking why they were assaulting him.
At that stage a number of people had converged on the street to watch
the spectacle. After
the second episode of the assault he was thrown
into the back of the van with his hands cuffed. He emerged from the
incident with
left eye that was bruised and bleeding, a sore knee,
pains all over his body and head as a result of being kicked and
trampled.
He sustained a bulge at the back of his head. He was very
distressed, felt embarrassed, small, that his self-esteem had been
lowered
in the eyes of his neighbours who witnessed the assault on
him by his colleagues. He had to receive counselling and psychiatric
treatment. He now takes chronic medication for depression.
[7]
In his report,
Doctor Santhia
recorded the following injuries:
·
3 cm laceration on the left occiput;
·
Abrasions with swelling and tenders on the
left temple;
·
Left subconjictival haemorrhage involving
the outer left eye;
·
Tender swelling with abrasions over the
left zygoma;
·
Tender medial aspect of the right knee;
·
Tender upper back.
The
plaintiff was examined at 02h30 on the 19 July 2008.
Doctor
Santhia
concluded that the injuries are consistent with history
of assault by kicking over the head and body.
[8]
Both
Makina
and
Mahabeni
testified that their attention was drawn to the incident involving
the plaintiff by noise which sounded like a number of people
who were
talking loudly.
Makina
had seen plaintiff on his return from
work earlier that evening and he was looking normal.
Makina
saw plaintiff being brought towards his gate by police. He observed
that his hands were handcuffed to his back and he was being
assaulted. Plaintiff was asking why the police were assaulting him.
He witnessed plaintiff being thrown on top of a heap of sand
next to
his gate. He observed that there were several policemen around but
could cannot say how many of them assaulted the plaintiff.
The
plaintiff was kicked and trampled on. He was shocked to see a
policeman being assaulted by his colleagues in front of many
onlookers. The police thereafter lifted the plaintiff by holding him
on both sides and threw him inside the back of the police
van like a
bag of salt, according to him. He did not observe plaintiff doing
anything to his colleagues before being bundled into
the back of the
van. Similarly,
Mahabeni
noticed the plaintiff lying on top of
a heap of sand being assaulted with four to five policemen around
him. They were trampling
on him and kicking him all over his body.
Both witnesses were cross-examined at length but were adamant that
plaintiff was assaulted
at the time he was lying down and not doing
anything to his colleagues.
Mahabeni
could only testify about
what happened to plaintiff outside his yard.
Defendant’s
case
[9]
The only witness who testified
in support of defendant’s case was
Warrant Officer Sweeney
(
Sweeney
). At the time of the incident he was attached to
the crime prevention unit of the Grahamstown Police Station. He
confirmed that
the complement of members per shift was between nine
and ten members. On the day in question, members of his unit were
briefed
about the impending arrest of the plaintiff in connection
with attempted murder charges laid against him by
Moyakhe
.
They set off to plaintiff’s place in a convoy of approximately
four to five motor vehicles. Senior officers were going to
speak to
the plaintiff first and would then call them to action when required.
Meanwhile
Sweeney
and members of his unit took positions
outside plaintiff’s perimeter fence and monitored the
situation. He observed the plaintiff
walking from his house to the
motor vehicle in which the senior officers were driving in the
company of
Cassim
and
Mamothubi
. The three got into the
officers’ motor vehicle.
Sweeney
moved towards the
plaintiff’s front gate. At that stage he observed plaintiff
jumping out of the officers’ motor vehicle
and approaching them
at a fast past and uttered the words “
fuck off my yard
”.
Sweeney
then placed his hand on plaintiff’s shoulder.
Plaintiff pushed his hand away and swung his hand and hit him on the
chest.
His colleague,
Siebert
warned plaintiff to co-operate
failing which he will pepper spray him. Meantime
Sweeney
was
trying to hold plaintiff’s hands without success.
Siebert
warned plaintiff for the second time and then pepper sprayed him.
Plaintiff became more aggressive and ran towards the fence. They
chased him and caught up with him and tripped him in a bid to
immobilise him so that he could be handcuffed. This caused the
plaintiff
to fall on his stomach. Still, plaintiff did not co-operate
and resisted being arrested. They pulled his arms towards his back
with one officer pressing his feet down to stop plaintiff from
kicking them.
Sweeney
placed the handcuffs on the plaintiff,
got him off the ground, out through his gate and placed him on a heap
of sand. He denied
that plaintiff was kicked and trampled on in his
presence. After the plaintiff had been placed on a heap of sand
outside his yard,
Sweeney
left to go and get the police van.
Plaintiff was then placed at the back of the van. He does not know
what happened in his absence.
He did not at any stage see any of the
officers assaulting the plaintiff. He confirmed that plaintiff
sustained some injuries which
he observed at the police station. He
confirmed that plaintiff remained handcuffed at the police station,
in what he termed a ‘
prep room
’ as opposed to a
cell. Explaining that plaintiff who was still being processed, was
kept in handcuffs because he was violent.
Plaintiff testified that
after he was placed in a cell he remained in handcuffs until a
colleague from Seven Fountains,
Constable
Hector
(
Hector
),
came to lock up someone. It was after his intervention that handcuffs
were removed. In a statement
Sweeney
submitted in connection
with the matter he apparently stated that plaintiff at some stage
reached for his firearm. When asked if
that was a misleading
statement, he said he had nothing to say in that regard.
[10]
It also emerged that all the policemen in
Sweeney’s
company including
Sweeney
had firearms.
Discussion
[11]
In light of the evidence, it is apposite to remind
one’s self of the defendant’s plea to the
plaintiff’s
claim (assault). It was pleaded that the police used minimum force in
order to arrest the plaintiff who was resisting
a lawful arrest. Use
of pepper spray was admitted. Kicking and punching even after the
plaintiff had been handcuffed was denied.
In respect of the
allegation that plaintiff sustained body injuries (specified) as
result of the assault, this was denied by the
defendant.
Alternatively, if he sustained any injuries
which is denied
(my underlining) defendant pleads that he has no knowledge of who
inflicted them or when plaintiff sustained same. We know that
Sweeney
observed the injuries when plaintiff was in the police cells that
evening. So, defendant cannot deny that plaintiff had sustained
some
injuries that evening. The injuries were also confirmed by the doctor
who examined the plaintiff a few hours after the arrest
in the early
hours of the 19 July 2008. The arrest is alleged to have taken place
at about 21h00 on the 18 July 2008.
[12]
The defendant has admitted the assault on the plaintiff in the form
of pepper spray but claim
same was used to overcome the resistance
that was put up by the plaintiff. The rest of the assault as alleged
by the plaintiff
is denied.
[13]
The defendant only admitted that plaintiff was
pepper sprayed and that such was justified. The bulk of the
alleged
assault is denied. It is trite that the
onus
to prove that the assault on the plaintiff was lawful (minimum force
in a bid to thwart resistance by the plaintiff) rests on the
defendant. What the court said in
Mabaso
v Felix
[1]
,
in my view applies with equal force in the present circumstances.
Namely that the
onus
to prove that the assault was on the plaintiff was justified because
of some statutory provision, rests on the defendant.
[14]
From the pleadings, the parties appeared to have
divergent versions as far as the assault on the plaintiff.
However,
from the only defendant’s witness,
Sweeney
, it
transpired that he was not in a position to deny that the plaintiff
was assaulted in the manner he described. This is in view
of the fact
that on his version after the plaintiff was placed on top of the heap
of sand he left the scene to go and fetch the
police van. He does not
know what happened in his absence. He did not witness any assault on
the plaintiff. Barring of course the
pepper spraying and the pinning
down of the plaintiff after he had been caused to fall. So,
plaintiff’s evidence about how
he was assaulted after being
placed on the heap of sand is uncontradicted. Plaintiff denies that
he resisted a lawful arrest.
[15]
What are the probabilities of plaintiff having
resisted an arrest in the circumstances that are mostly common
cause
between the parties? Plaintiff and his wife worked at the Grahamstown
Police Station, he was therefore well known to his
colleagues. He was
fetched from his house and walked freely with two senior officers. He
sat with them in their motor vehicle for
a while. How does one jump
out of a stationary sedan? He is not said to have fled, he is said to
have walked at a “fast pace”
and towards his house. We
know that there were a number of policemen at the scene all armed
with firearms. Also at the scene, were
four to five police vehicles.
It seems improbable that plaintiff would have resisted an arrest in
these circumstances.
[16]
It is trite that in any civil case or criminal
case, the
onus
can be discharged by adducing credible evidence to support the
evidence of the party on whom the
onus
rests.
[2]
Trite also is the
principle that where the versions are mutually destructive, the party
on whom the
onus
rests can only succeed if he satisfies the court on a balance of
probabilities that his version is true and accurate and therefore
acceptable, and that the version advanced by the other party is false
or mistaken and falls to be rejected. See
SFW
Group Ltd and Another v Martell et Cie & Others
[3]
regarding the approach to be followed in the case of two
irreconcilable versions.
[17]
Earlier in this judgement I pointed out factors that point away from
plaintiff having attempted
to flee or resist an arrest. The version
presented by the defendant is highly improbable in this regard and it
is rejected as being
untrue. Even if I were wrong in this regard, at
the time when the plaintiff had his hands handcuffed to his back and
having been
pepper sprayed and immobilized when he was made to fall,
there is no question of him being able to resist an arrest. It is not
only the testimony of the plaintiff that the court must have regard
to as to what was done to him. One of his neighbours,
Makina
saw plaintiff being taken out of his yard, with his hands cuffed and
being assaulted. Both
Makina
and
Mahabeni
confirm what
plaintiff said happened after he was made to lie face down on the
heap of sand outside his yard. How he was trampled
on and kicked and
thereafter placed at the back of a police van. According to
Makina
plaintiff was thrown into the police van “
like a bag of
salt
”. Their evidence has not been gainsaid. All
Sweeney
could offer in this regard was that the plaintiff was not assaulted
in his presence. In any event, he cannot tell the court what
happened
after he left to fetch the police van. I have no difficulty in
accepting plaintiff’s evidence as being credible
and plausible.
It is therefore my considered view that the assault on the plaintiff
was unlawful and that the defendant is liable
for the damages
suffered by the plaintiff as a result of the assault on him by
defendant’s employees.
[18]
In considering what would constitute a reasonable
award for the damages suffered by the plaintiff, I will
keep in mind
that an award for damages is meant to fairly and adequately
compensate an injured party. That a court has a wide discretion
to
award what it considers to be a fair and adequate compensation to the
injured party in the circumstances before it.
[4]
Further that awarding general damages with reference to awards made
in previous cases is fraught with difficulty. Furthermore that
awards
in previous cases are however a useful guide to what other courts
have considered.
[5]
In the
matter of
Minister
of Safety and Security v Seymour
(see
footnote 5) at paragraph [20]the following point was made:
“
[20]
Money can never be more than a crude
solatium
for the deprivation of what, in truth, can never be restored and
there is no empirical measure for the loss. The awards I have
referred to reflect no discernible patters other than that our courts
are not extravagant in compensating the loss. It needs also
to be
kept in mind when making such awards that there are many legitimate
calls upon the public purse to ensure that other rights
that are no
less important also receive protection.”
[19]
Plaintiff’s claim in this regard was
initially for damages in the sum of R800 000.00. In argument
before me, his counsel
Mr Cole SC
submitted that plaintiff’s
claim could reasonably be quantified to be in the region of
R350 000.00 to R400 000.00.
On the other hand,
Mr
Wolmarans
for the defendant submitted that an amount of
R10 000.00 to R20 000.00 would be more than adequate
compensation for plaintiff’s
injuries together with the
contumelia
associated therewith.
[20]
The plaintiff is forty-seven (47) years old. The
incident happened fourteen years ago. He is still a member
of the
SAPS holding the rank of a Sergeant. He has since been transferred to
Alice. Although now divorced, at the time of the incident
he was
married. He has two children. He together with his witnesses painted
a picture of what appears to have been a sustained
assault at the
hands of his colleagues. A photograph of how he looked a few hours
after the assault was exhibited in court. The
photograph depicted his
upper body, with his head and face partly covered in pieces of grass
and what appears to be sand on the
head, dried blood and swollen eye
(partly closed). The injuries were also described by the doctor who
examined him. He was criticized
that the medical report made no
mention of the lump at the back of his head that he testified about.
His evidence was also criticized
for lack of proof that he suffered
from emotional pain in addition to the physical pain he felt, as a
result of which he received
psychiatric treatment and that he is on
chronic medication for depression.
[21]
Plaintiff had recently joined the SAPS when the
incident took place. He was assaulted and manhandled by
his
colleagues in full view of members of the community, which included
the two witnesses who testified in support of his case.
His wife also
witnessed the incident and tried to intervene on his behalf. There is
evidence that his child was also at some stage
witness to the
incident.
Makina
testified that he was shocked to see a
policeman being assaulted by his colleagues in front of many
onlookers. Having been taken
to the police station, the plaintiff
remained handcuffed until a colleague from another police station
intervened. Plaintiff also
testified that he was only taken to see
the doctor hours after his arrest. There can be no doubt that this
must have caused the
plaintiff a lot of anguish. When he recounted
the incident in court, fourteen years after it occurred, plaintiff
unable to control
his feelings, broke down and started crying. It is
clear from the evidence that plaintiff suffered
contumelia
associated with the assault in the form of pain, shock, humiliation
and anguish. The incident must have been traumatic.
[22]
In my view, plaintiff will be fairly and
adequately compensated by an award for R100 000.00.
Costs
[23]
As indicated earlier, it was submitted on behalf
of the defendant that in the event of the court finding
that the
assault on the plaintiff was not justified, an award in the amount
between R10 000.00 and R20 000.00 will be
more than
adequate. Consequently, that the court should order costs on the
Magistrates’ Court’s scale. Further that
the defendant
should be awarded costs in respect of the unlawful arrest and
detention claim that was officially abandoned on the
day of the
trial. In this regard, I was referred to the matter of
Ricardo
Llewelen Korkie v Minister of Police
[6]
where
Bloem
J
ordered that costs of suit should be on the Magistrates’
Court’s scale. This was on the basis that plaintiff in that
matter could have instituted the claim in the Magistrates’
Court. This matter is distinguishable in that in the
Korkie
matter damages sought were for R450 000.00 and R200 000.00
respectively in
casu
,
the claims were for total amount of R1 500 000.00. In respect of
the assault alone, the claim was for R800 000.00.
[24]
The reason for the abandonment of the claim for
unlawful arrest and detention was that the plaintiff had
only
complied with the provisions of
Section
3 of Act 40 of 2002
[7]
in respect of the assault claim. Granted that this was drawn to the
attention of the plaintiff by means of a special plea as early
as in
2009, I do not think that this would be an appropriate case to punish
the plaintiff for his attorney’s omission. And
that I should
exercise my discretion in favour of awarding costs to the defendant
in this regard. It has not been brought to my
attention that the
defendant suffered any prejudice as a result of the abandonment of
the claim in respect of the arrest and detention
on the door step of
the court.
[25]
Accordingly, the following order will issue:
1.
The defendant is liable for damages suffered by the plaintiff as a
result of being unlawfully assaulted by his members on 18
July 2008.
2.
The defendant is ordered to pay to the plaintiff the sum of
R100 000.00 as and for damages for the aforesaid unlawful
assault.
3.
The defendant shall pay interest on the sum of R100 000.00 at
the prescribed rate of interest from date of judgment to date
of
payment.
4.
The defendant shall pay plaintiff’s costs of suit, such costs
to include plaintiff’s cost of the photograph, Doctor
Santhia’s
qualifying expenses, if any, and costs of Senior Counsel.
N
G BESHE
JUDGE
OF THE HIGH COURT
APPEARANCES
For
the Plaintiff :
Adv: S H Cole SC
Instructed
by
:
MILI ATTORNEYS
110
High Street
Eskom
Building
GRAHAMSTOWN
Ref:
Mr D Mili/Nandi/N375
Tel.:
082 671 9979
For
the Defendant :
Mr Wolmarans
Instructed
by
:
STATE ATTORNEYS
C/o
NN DULLABH & CO.
5
Betram Street
GRAHAMSTOWN
Ref:
Mr Wolmarans
Tel.:
046 – 622 6611 / 9966
Date
Heard
:
9 June 2022
Date
Reserved
: 9 June
2022
Date
Delivered
: 6 September
2022
[1]
1981
(3) SA 856
at 873.
[2]
National
Employers’ General Insurance v Jagers
1984 (4) SA 437
ECD at
440.
[3]
2003
(1) SA 11
SCA at 14 – 15.
[4]
Road
Accident Fund v Marunga
2003 (5) SA 164
SCA at 169 [23].
[5]
Minister
of Safety and Security v Seymour 2006 (6) 320 SCA at 325 I.
[6]
Case
number 2129/2020 (Makhanda).
[7]
Institution
of Legal Proceedings Against Certain Organs of State Act.