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[2021] ZAGPPHC 881
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Sealane v Minister of Police and Another (31781/2013; 66025 /2015) [2021] ZAGPPHC 881 (15 January 2021)
SAFLII
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 31781/2013
REPORTABLE:YES/NO
OF
INTERESTO OTHER JUDGES:YES/NO
REVISED
DATE:15/01/2021
In
the matter between:
MAKOLA
AMOS SEALANE
PLAINTIFF
AND
MINISTER
OF POLICE
FIRST DEFENDANT
LIEUTENANT
COLONEL SOMA
SECOND DEFENDANT
AND
CASE
NO: 66025 /2015
In
the matter between:
MAKOLA
AMOS SEALANE
PLAINTIFF
AND
THE
NATIONAL DIRECTOR
OF
PUBLIC PROSECUTIONS,
FIRST DEFENDANT
THE
NATIONAL PROSECUTING AUTHORITY
THE
MINISTER OF JUSTICE
SECOND DEFENDANT
AND
CONSTITUTIONAL DEVELOPMENT,
THE
DIRETOR-GENERAL OF JUSTICE
AND
CONSTITUTIONAL DEVELOPMENT
JUDGMENT
MAVUNDLA
. J.
AD
UNLAWFUL ASSAULT AGAINST MINISTER OF POLICE: CASE NUMBER 31781/2013
[1]
The plaintiff, an adult male born on 29-11-1979 issued summons
against the defendants under case number
31781 / 2013 on 21 May 2013,
claiming damages in the amount of R7 000 000 (seven million rand) for
unlawful arrest, assault, and
unlawful detention.
[2]
Sometime later after discovery of the police docket, the plaintiff
instituted action against the National
Director of Public
Prosecutions (NPA), the Minister of Justice and Constitutional
Development under case number 66025 /2015, claiming
damages in the
amount of R7 000 000 (seven million rand) for unlawful detention on
the grounds that the NPA knowingly opposed bail
with no reasonable
grounds. The action against the Minister of Justice and
Constitutional Development has since been withdrawn.
[3]
At the inception of the trial on 29 May 2018 the above-mentioned
matters were consolidated, and the
issues of merits and quantum were
separated in terms of rule 33 (4) and the quantum issues were
postponed
sine die
and the matter proceeded on the merits. The
evidence in respect of both claims was heard as one. For purposes of
convenience, separate
judgments are prepared in respect of each
matter.
[4]
On the aforesaid first day of the trial, the plaintiff abandoned the
claim for unlawful arrest and detention
against the Police, leaving
the only issue for determination against the Police being the alleged
assault. The arrest and detention
of the plaintiff prior to his first
appearance in court was in terms of a warrant of arrest . In respect
of the claim against the
NPA the issues remained the same as
indicated in paragraph 3 above.
[5]
In respect of the assault and unlawful detention, the plaintiff in
his particulars of claim pleaded
as follows:
“
6.1
After the unlawful arrest the plaintiff was taken to his home in
Sterkfontein and a search of the dwelling and the
premises was
conducted without a search warrant.
6.2
Nothing was found.
6.3
Thereafter the Plaintiff was taken to his mother’s house in
Tafelkop and again a search was conducted
without any search warrant.
Once again nothing was found.
6.4
The plaintiff was taken to Mahwelereng police station and instructed
to lie on the floor for approximately
2 hours whereafter an
interrogation started.
6.5
During the interrogation the Plaintiff was assaulted by means of
torture by members of the 1
st
Defendant. The torture/
assault consisted
inter alia
of:
(i)
Electric shocks.
(ii)
Plastic bag pepper sprayed inside was held over his head.
(Ill)
Vicious pulling of his penis.
(iv)
Slaps in his face and kicks to his body .
6.6
The plaintiff was refused any medical attention for a period of one
month.
6.7
The plaintiff was released on bail on 14 September 2011 and all
charges were withdrawn on 21 August 2012 .”
[6]
The following is common cause:
6.1
The identity of the plaintiff
6.2
The identity of the defendants.
6.3
That the members of police (SAPS) and the Public Prosecutions acted
within the cause and scope of their employment
and duties to
Defendants namely Minister of Police and the NPA.
6.4
That the plaintiff was arrested by members of the SAPS at Glen Cowie
on 21 July 2011 at around 14:00.
6.5
Searches were conducted at the house of the Plaintiff at Sterkfontein
as well as the house of his mother at
Tafelkop. Nothing incriminating
was found.
6.6
The Plaintiff was subsequently taken to Motetema police station and
thereafter to Mahwelereng police station
6.7
The police left with the plaintiff at about 18:45 and the distance to
Mahwelering is about 150km.
6.8
The Plaintiff was booked into the cells at Mahwelereng at 23:14
according to the cell register (
vide
Exhibit “ F”
).
6.9
The plaintiff made a first appearance in court on 25 July 2011.
6.10
The Plaintiff’s case was remanded several times with the
Plaintiff in custody up to 14 September 2011
when he was granted
bail.
6.11
Bail for the plaintiff was opposed by the NPA.
6.12
The case was withdrawn against the Plaintiff on 21 September 2012.
AD
ASSAULT MATTER: AGAINST THE POLICE: CASE NUMBER 31781/2013
[7]
In respect of the matter against the police, the issue to be
determined is whether the plaintiff was
indeed assaulted, as he
alleged, which was denied by the defendant . I therefore do not
intend to traverse the entire evidence
of the Makola but confine
myself to the relevant issue pertaining the alleged assault.
[8]
The arrest of the Makola is a sequel to the killing of Lieutenant
Colonel Makubane (hereinafter referred
to as the deceased) on the 16
July 2011 between 00:00 and 01:30, whose lifeless body was found next
to a state vehicle with registration
number [...] he was driving
along the road. He had multiple injuries and gunshot wound on the
head. next to the police vehicle.
There were empty cartridges and
live ammunition of 9mm and 7,65 mm calibre lying on the scene of
crime. The state vehicle was parked
on the left side of the road with
hazards on, the keys were found lying in the middle of the road. The
jack was placed under the
right front wheel of the vehicle together
with the wheel spanner next to it. The deceased was discovered by
Emergency Service officials
from Matlala Hospital. According to the
Emergency Services officials, the victim’s service pistol was
on the ground next
to his body. One chief Mashegoane arrived at the
scene of crime and was requested by the Emergency Medical Service
officials to
guard the scene while going to report the matter to the
police. When they returned to the scene with the police, the chief
and
the firearm were not there. However, the firearm has since been
recovered.
[9]
The fingerprints of the plaintiff (hereinafter referred to as Makola)
were subsequently uplifted from
the deceased’s vehicle on 17
July 2011 and confirmed as such on 17 July 2011 by WO LC LA Grange
(
vide
Annexure “P” of Notice in terms of Rule
35(3) of case number 31781/2013. Makola was subsequently arrested on
21 July
2011 for the alleged murder of the deceased.
PLAINTIFF’S
CASE
[10]
The plaintiff testified
, inter alia
, that in 2011, he worked
in office administration and crime prevention at the Groblersdal
Cluster Commander’s Office. He
had been a Police Reservist
Constable since 2008. At about 11h 00 on 21 July 2011, Makola
received a call from Soma inquiring about
his whereabouts. Makola
informed Soma that he was at Glen Cowie at the memorial service of
Makobane. Soma asked him to stay at
the memorial. At about 14h30 on
21 July 2011, Soma arrived with other police officials in
approximately 17 to 18 unmarked police
vehicles. Soma presented a
warrant of arrest to Makola. He was being arrested for the murder of
Makobane. Makola was driven away
in a Toyota Fortuner by Lieutenant
Makweya to his (Makola’s) place of residence in Sterfontein.
The police searched the house
and did not find any evidence. After
searching his residence in Sterfontein, police officials proceeded to
Makola's mother’s
residence in Tafelkop. The police searched
Makola’s mother’s residence in her presence but without
her consent and
found nothing.
[11]
According to Makola, he was taken to Motetema police station but
remained in the police vehicle.
He was taken from Motetema between
17h00 and 18h00 in Lieutenant Makweya’s Toyota Fortuner
vehicle. He estimates that they
arrived at Mahwelereng between 19h00
and 20h00 .He was in the back of the Fortuner and it was already
dark, as such he cannot say
how many vehicles were travelling behind
the vehicle, he was in. When they arrived at Mahwelereng, he was put
into an office, whereafter
approximately 16 to 17 police officers
entered the office. He was ordered to lie face down, on the ground
while he was handcuffed.
The police officers began “randomly”
asking him questions. Lieutenant Makweya was sitting in the room at a
desk writing
down his response as they interrogated him. At around
21h30 to 22h00, the police officers including Makweya and a woman
Lieutenant
colonel left the room, leaving only three or four male
police officers. The remaining officers switched off the lights in
the office
and began assaulting him by hitting him with their hands
and kicking him. The police officers proceeded to put over his head a
plastic bag pepper sprayed inside. His genitals were electrocuted and
pulled. The assault continued until about 22h05. He knows
this
because after the assault, the police read him his rights and
detained him. He was not given an opportunity to tell the police
about his attorney. The accompanying right document (SAPS14) records
him as being in the Community Service Centre “CSC”)
at
22h15. According to Makola he also suffered injuries to his wrists
because of the way he was handcuffed when he was arrested.
On 22 July
2011, he asked the police to take him to the hospital because his
whole body was in pain and full of blood. At the time
of his arrest,
he had an abscess on his chest and taking tablets which, he had with
him, but lost during the assault. On Sunday
24 July, he was charged
by Warrant Officer Langa (“Langa” ). While in the cells
at Mahwelereng, the other suspects
that were in the cells with him
assaulted him. His family did not know where he was, until he was
taken to court at Nebo on 25
July 2011. At court on 25 July 2011 he
was represented by Adv Mabaso. When the latter came to see him at the
cells on 25th, he
asked him why he was full of blood and swollen. He
informed Mabaso that he was assaulted by the police. (It needs noting
that according
to Exhibit A pages 173 to267 which was read into the
record, Mabaso explained to the magistrate that Makola was beaten by
the police.
Vide transcript 31781/2013 2018-05-29 page 28 lines 3-6).
[12]
Makola further testified that he was detained at Nebo Police station
on 25 July 2011. He was since then detained
in three different police
stations, including Paxton in Witbank. He said that the cells at both
Mahwelering and Nebo were not clean,
had flies and the blankets had
bed bugs. Sometimes there would be no water, which would be brought
in litre bottles. The police
took some of his clothes saying that
they were going to conduct forensic examination on these. In the
Merits Trial Bundle C to
be found at page 1-6 to 181 at the last page
there are three photographs which were handed in as exhibit B,
showing handcuff marks
on his wrist, which Makola said were caused by
the cuffs. These marks he said were also on his ankles caused by the
chains placed
on his legs.
[13]
Makola was extensively cross examined. He estimated that the trip
from Motetema to Mahwelereng took about three
hours, and they arrived
at Mahwelereng police station at about 22:13. This was an estimate
because he did not have a watch with
him. He further said that this
time was also recorded in the cell register as well as the notice of
his rights document. He disputed
that he arrived at Mahwelereng at
22:30. He was shown exhibit F which reflected the time of his
detention to be 23:14. Makola said
that he did not agree with that
recorded time. Makola further said that on their arrival at
Mahwelereng he was placed in a certain
office where there was plus or
minus 17 to 18 police officers who started asking him questions. He
said some of the police officers
were from Mahwelereng, including
Colonel Somo, W/O Ramos and sergeant Malatji.
[14]
Makola further said under cross examination that he had visible
injuries, which were all over his body. When he
appeared at court in
Nebo on 25
th
his advocate observed that his body was
swollen, and he informed him that he was tortured. He said that on
the day of the torture
on the 21
st
he was bleeding. His
body was bleeding and swollen . He bled through his mouth and nose.
He was wearing a jacket and a white shirt
as well as a white t-shirt
underneath. There was blood on the t-shirt. When he was being taken
to CSC, along the way there was
a tap from which he washed his face.
His hands had been uncuffed. Asked whether the t-shirt had blood, he
said that he could not
remember. When asked why he had taken off his
shirt, he said that it was because he was feeling hot and the shirt
was blood stained.
He further said that his hands were swollen, his
wrists had sustained injuries because of the handcuffs. One could see
the underlying
flesh because of the handcuffs. It was pointed out to
him that in his evidence in chief he did not tell the court that
after the
torture he had to pour water on his face as he was being
taken to the CSC offices. When asked whether he showed anyone at the
CSC
his injuries, in particular the person who detained him, Makola
said that the very person who detained him is the very person who
was
present when he was tortured, and it was W/ O Langa and there was no
need to show him his injuries. It was pointed out to him
that on the
previous occasion he had said that he did not see the people who
tortured him because the lights were off, and he did
not know their
identity. He said that he could see one of them because after the
torture the lights were switched on and he was
therefore able to see
one of them. Langa is the one who took him to the cells. The people
who tortured him were four. When the
lights were switched on, he
stood up and was able to see and identify W/O Legale. Langa was in
their company when they were going
to CSC. It was pointed out to him
that previously he did not mention Langa, he responded by saying that
when he was being tortured
the lights had been switched off. It was
pointed out further to him that he did not mention Legale in his
evidence in chief. He
further said that at the time he was being
tortured he did not know who the people torturing him were. He
further said that at
the time of torture there were some of those who
he knew and others he did not know . He further said that he was able
to see and
identify Legale when they were leaving the office, Langa
was in their company as they were going to the Community Service
Centre
.
[15]
Makola further said that during the torture he could not see the
people who tortured him because he was lying on
his tummy and the
lights had been switched off. He identified one after they were done
in assaulting him, when and the lights were
switched on as the door
was opened. He further said that he did not tell the person who
detained him in the cells, about the injuries
he sustained, because
he did not see any reason to do so, because that person was one of
those who tortured him. He further said
that the torture started
round about 20:00 until 22:00 when they left the office where he was
tortured. He also said that the times
he mentioned were estimations
on his part. He further said that he is not certain about the times
but relies on the time of 22:15
which was recorded by the officers;
besides, he was not himself at the time.
[16]
Makola further said that when he was arrested at the memorial
service, he told the people who arrested him that
he had a medical
condition and had left his medication at home. He conceded that he
did not tell the person who admitted him to
the cells about his
medical condition as well as about his injuries. He further said that
he did inform Makwela who was driving
a Fortuner. Makola said that he
did not inform the person who detained him of his injuries and his
medical condition, because he
did not ask him. He further said that
he did not consider it important to inform the person who detained
him to the cells about
his injuries. The second reason was that his
body was sore and painful at that stage of detention . He was also
mentally exhausted
and confused. And a further reason was because he
had realised that there was nothing he could do, and he was not being
taken seriously.
He further said that he requested the commissioner
who was visiting the cells that he wanted to be taken to see a
doctor
but was informed that there was no van. He said that he could
not dispute that in the OB it was not recorded that he had complained
of any injuries nor that he had injuries. He further said that he was
also assaulted by fellow prisoners at the cells. He would
not be able
to distinguish the injuries caused by the police and those by the
fellow prisoners.
[17]
Makola insisted that Somo was one of the officers who questioned him
at Mahwelereng on the 21
st
as well as on the 25
th
. He further said that he could not remember whether he showed the
blood -stained t-shirt to any police officer.
[18]
Although Makola called witnesses, their evidence is in my view not
relevant to the assault issue, as such I will
not chronicle it for
the purposes of the assault matter, but in the judgment under case
number 66025/2015.
DEFENDANT’S
CASE
[19]
On behalf of the defendant Lieutenant Colonel Somo was called to the
stand. Somo confirmed that he arrested Makola
at a memorial service
of the late Colonel Mokabane at Glen Cowie and took him to a few
places which were searched but nothing incriminating
was found. He
denied that he was among those officers who took Makola to
Mahwelereng . He confirmed that nothing was found at the
places where
Makola was taken to and searched. Somo said that he called together
the members of the team at Motetema police station
where a debriefing
session took place. Makola at the time was inside a vehicle guarded
by one of the police officials . Thereafter
at about past 18h00 or
18:45 W/O Mas hit a, W/O Langa and Dekgali drove with Makola to
Mahwelereng. He saw Makola again on the
Sunday of 25 July at
Mahwelereng to charge him. Somo denied having been at Mahwelereng on
the 21 July. He denied that Makwela travelled
to Mahwelereng on the
21 July. He said that the distance from Motetema to Mahwelereng is
about 150 kilometres and estimated the
travelling time to be three
hours because of the poor state of the road. He estimated that the
team would have arrived at Mahwelereng
round about 22; 45. When shown
the entry of 23:14 on the cell register he did not dispute this. The
rest of his evidence on this
aspect of time was in my view pure
speculative and need not be chronicled.
[20]
Langa was also called to the stand on behalf of the defendant. He
confirmed that he is a member of the SAPS. He
confirmed that on 21
July 2011 he was present when Makola was arrested and taken to
several places and eventually to Mahwelereng.
He said that they left
Motetema round about 18:50. He was with Mashita, Dikgale and Makola.
They arrived at Mahwelereng at about
22:50. They parked their vehicle
at the police station and proceeded to CSC where they found WO Mahowa
who was busy with administrative
duties. They informed him that they
had brought Makola. He further said that the administrative books
were handled by Makgongwa.
He said that Makola was received at
Mahwelereng without any injury. He denied that Makola was tortured
before he left him there
nor after he was booked at the cells. He
denied that Makweya was with them at Mahwelereng.
[21]
Under cross examination Langa confirmed that in exhibit G his name is
reflected and that he booked out Makola from
the cell without injury.
The purpose of booking Makola out on 24 July 2011 was to have him
charged. He took Makola to Somo. He
denied that Makola was ever
assaulted nor tortured at any stage in his presence. He said that
there were lots of cars at the memorial
service but denied that there
were 17 to 18 blue lights flashing vehicles. He said some were there
to attend the memorial service.
He confirmed that the lady Lieutenant
colonel Makweya was also present, as well as colonel Somo and were
driving in the Toyota
Fortuner. He recalls that he and others were
driving in the Focus. He reiterated that Dikgale, Mashita, Makola and
himself were
driving in the Ford Focus, while Somo and Makwela were
driving in the Fortuner. He said that at Motetema Makola remained
seated
in the car while they went into the police station. He said
that he could not recall that Makola was interrogated at the time.
According to him they left for Mahwelereng and reached there at about
22h00 to 23h00, about 150 kilometres. He said that he was
not present
when Makola was being interviewed. He said at Mahwelereng his role
was only to take Makola to the cells. He confirmed
that in exhibit
H
(which is the SAPS 14) the time inscribed is 22:15 and said the
person who wrote that time made a mistake because they arrived
at
Mahwelereng at 11 at night. The reason for the delay in travelling
was due to road works, stop and go and animals along the
road. He
denied that there was any occasion where Makwela was seated at a desk
while Makola was being interrogated at Mahwelereng.
He confirmed that
there were two statements taken by Somo, one from Makola and another
from Faith. He confirmed that these two
statements were given to him
by one of his seniors, Koekemoer to file in the police docket . He
further said that on their arrival
at Mahwelereng they went to the
CSC. He denied that Makwela was present at the time. He denied that
there was any stage when the
lights were switched off and Makola
tortured or assaulted. He denied having asked Makola to explain why
his fingerprints were on
the spare wheel of the deceased's vehicle.
He said that he was instructed to get a detailed statement from
Makola regarding alleged
threats made to the deceased but forgot to
carry these instructions. He said that he does not recall anything
about exhibit
J
and exhibit
I
statements that were
handed to him by Somo because it was quite a long time ago. He
conceded that when Somo said that he gave these
two statements to the
investigating officer, he would have been referring to him. He
further conceded that there is nowhere reflected
in the docket that
these two statements were filed. He further denied that Makola was
arrested by lots of police. He denied that
there were 17 to18
vehicles when Makola was arrested. He denied that Makola was a
passenger in the Fortuner with Makweya. He denied
that Makweya was
present at Mahwelereng seated at a desk taking a statement from
Makola. He denied that Makola saw him and Dikgale
when he was or
after allegedly tortured.
[22]
That completed the case for the defendant.
[23]
It is trite law that in assault cases, particularly in civil matters,
the victim as claimant bears the onus to
prove his case. To discharge
the onus resting on the claimant, he or she must do so on a balance
of probability; vide
Prinsloo
v Van Der Linde
[1]
;
Pillay
v Krishna and Another
[2]
.
In casu, the defendant denies the version of Makola. In other words,
in casu there are two mutually destructive versions. The
approach to
be adopted by the court in such a situation is succinctly stated by
the Supreme Court of Appeal in the matter of
Stellenbosch
Farmers’ Winery Group and Another v Martell ET Cie and Others
[3]
as
follows:
“
[5]…The
technique generally employed by courts in resolving factual disputes
of this nature may conveniently be summarised
as follows. To come to
a conclusion on the disputed issues a court must make findings on (a)
the credibility of the various factual
witnesses; (b) their
reliability; and (c) the probabilities. As to (a), the court's
finding on the credibility of a particular
witness will depend on its
impression about the veracity of the witness. That in turn will
depend on a variety of subsidiary factors,
not necessarily in order
of importance, such as (i) the witness’ candour and demeanour
in the witness-box, (ii) his bias,
latent and blatant, (iii) internal
contradictions in his evidence, (iv) external contradictions with
what was pleaded or put on
his behalf, or with established fact or
with his own extra curial statements or actions, (v) the probability
or improbability of
particular aspects of his version, (vi) the
calibre and cogency of his performance compared to that of other
witnesses testifying
about the same incident or events. As to (b), a
witness' reliability will depend, apart from the factors mentioned
under (a)(ii),
(iv) and (v) above, on (i) the opportunities he had to
experience or observe the event in question and (ii) the quality,
integrity,
and independence of his recall thereof. As to (c), this
necessitates an analysis and evaluation of the probability or
improbability
of each party's version on each of the disputed issues.
In the light of its assessment of (a), (b) and (c) the court will
then,
as a final step, determine whether the party burdened with the
onus of proof has succeeded in discharging it.”
[24]
I must hasten to state that Mr Makola was not an impressive witness
at all. He was argumentative, long winded,
sometimes avoiding
answering straight forward questions. The court had on several
occasions cautioned him, as the record reveals.
He contradicted
himself in many instances. In his evidence in chief Makola did not
mention Legale as being one of the people who
assaulted him. It was
only during cross examination that he mentioned Legale’s name.
During cross examination he said that
Langa was with them as they
were walking to CSC. If he only saw Langa when they were walking to
the CSC, there is no factual basis
for him to conclude that Langa was
inside the office during the alleged torture, nor that he
participated therein.
[25]
Makola is not a lay person, but a police reservist. He certainly must
have known how crucial any piece of evidence
is to prove that indeed
he was tortured and had external injuries. According to him he bled
through his nose and his t -shirt was
blood stained. He decided to
wash his face at the tap as they were on their way to CSC. When he
was confronted why he decided to
wash away such crucial evidence, he
said that it is because he was feeling hot. I find his explanation
unconvincing.
[26]
Makola did not show the blood-stained t-shirt to the officer who
admitted him to the cells. He further chose not
to report to the said
officer that he had visible injuries. His reason for not doing so is
that he had concluded that the said
officer was part of his
tormentors and did not ask him. When the commissioner visited the
cells, Makola did not report the alleged
assault or any injury. The
Occurrence Book and the cell register does not reflect any injury on
the part of Makola. He failed to
provide his own advocate with any
name of the police who allegedly assaulted him, save to make a vague
allegation that he was assaulted
by the police. It needs noting that
he had said some of the police officers who were in the office where
he was subsequently tortured,
were unknown some he knew. One would
have expected him to have placed on record through his advocate the
names of those police
he knew and believed to have assaulted him and
even preferred criminal charges against them. This was not done. In
my view, the
probabilities are that the alleged assault and torture
did not occur.
[27]
Makola’s evidence was that during his arrest he was requested
to hand in everything he had with him. He did
not have a watch, as
such the times he mentioned were mere guess work and unreliable. On
the contrary Somo and Langa, compared
to Makola, were impressive
witnesses who answered questions spontaneously . Their evidence
regarding the departure of the police
from Mtetema and arrival at
Mahwelereng is reliable. Langa explained that the time 22:15
mentioned by Makola was an error, because
they departed from Mtetema
round about 18:50, and arrived at Mahwelereng at about 22:50. Makola
was booked in the cells at 23:14.
The trip took about 3 hours because
of the stop and go road constructions . It was submitted on behalf of
Makola that from the
time of departure to when he was locked up, it
took four hours, and that therefore, besides the 3 hours travelling
time, there
is an extra hour unaccounted for, and that the
probabilities are that this was the period during which the torture
took place,
and the court must conclude that indeed the torture took
place . I am not inclined to follow this logic, for the simple reason
that the times mentioned are not precise. Besides, Makola was not an
impressive witness to conclude that he was assaulted and tortured
as
he alleged . It needs mentioning that during his bail application,
dully represented by his counsel Mabaso, Makola said that
he was
being asked questions by about 15 to 16 policemen. At a later stage,
they left the room, leaving him with one policeman
who, he knows by
sight, started to assault him, and trampled on him; vide Trial Bundle
F (Merits) paginated page 681 lines 16-23,
which is materially in
contradiction with his testimony before this court.
[28]
Consequently, I find that Makola has failed to discharge the
onus
he bore to persuade this court that he was assault ed. Accordingly,
the assault claim stands to be dismissed with costs, such costs
to
include the costs of two counsel. The employment of two counsel was
indeed justified.
[29]
In the result the claim of assault is dismissed with costs, such
costs to include the costs of two counsel.
N.M.MAVUNDLA
JUDGE
OF THE HIGH COURT
DATE
OF JUDGMENT : 15 / 01 /2021
PLA
INTI FF’S COUNSEL : A DV G. B BOTHA SC
WITH :
ADV L D SCHOLTZ
INSTRUCTED
BY :GP
VEN TER ATTO RNEYS INC.
DEFEN
DANTS ‘ ADV : A DV MA
RITZ SC
WITH
: ADV MOKA DI KOA-CHAUKE SC
DEFENDANTS'
ADV : ADV NOSHE
SC
WITH
: ADV MABUNDA
INSTRUCTED
BY
: STATE ATTORNEY PRETORIA
[1]
1997 (3) SA 1012
(CC) at 1028.
[2]
1946 AD 946.
[3]
2003 (1) SA 11
at (SCA) at p15