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[2019] ZAECBHC 21
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Light v Minister of Safety and Security and Others (469/2009) [2019] ZAECBHC 21 (29 October 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION – BHISHO
Case No:
469/2009
REPORTABLE/NOT
REPORTABLE
In
the matter between:
SABELO
LIGHT
Plaintiff
and
MINISTER
OF SAFETY & SECURITY
First Defendant
INSPECTOR
NGCANGCA
Second Defendant
INSPECTOR
MKHOSANA
Third Defendant
JUDGMENT
MAKAULA
J:
A.
Introduction
:
[1]
The plaintiff issued summons against the defendants claiming (a) that
on 14 May 2009,
at Zwelitsha Police Station, the second defendant
wrongfully and intentionally assaulted him repeatedly with a stick;
(b) that
the third respondent, despite owing a legal duty to protect
the plaintiff whilst in the care of the police, failed to protect him
and to ensure that he was not assaulted by the second defendant.
[2]
As a consequence of the injuries the plaintiff sustained, he claimed
for:
“
15.1
pain and suffering and economic loss to the amount of R100 00.00
amenities of life, for which the plaintiff
holds the first and third
defendant jointly and severally liable”.
15.2
Payment of the sum of R100 000.00 as and for general damages as
well as Contumelia, each
paying to absolve others; . . . “
(
sic)
[3]
The claim is based on vicarious liability in that the second and
third defendants
were, at the time, acting within the course and
scope of employment with the first defendant.
[4]
The defence raised by the defendants is a bare denial where the
plaintiff is put to
the proof of its allegations against the
defendants.
[5]
The issue of liability was separated from
quantum
by agreement
between the parties.
B.
Evidence
:
[6]
The plaintiff testified as a single witness. The second and
third defendants
also testified.
[7]
The plaintiff testified that earlier on there was a burglary at his
place. Some
of his clothes were stolen. He opened a case
with the South African Police Services (SAPS). The third
defendant was
the investigator thereof.
[8]
On 13 May 2009, while at his “stand” where he works as a
Hawker he saw
a person wearing his jersey and pair of trousers.
He ran to the police station, in particular to the office of the
third
defendant. He entered the office running. At the office,
he met with the second and third defendants. The second
defendant
enquired from him as to why he entered the office like that
and whether he was “drunk or high on drugs”. The
plaintiff explained to him that he had seen someone wearing his
clothes which were stolen during the break-in at his place.
[9]
The second defendant became angry. He took a stick and
assaulted him on his
ribs, knee and left mandible. The
plaintiff became angry and sat on the chair. On realising that
the second defendant
wanted to assault him further, he ran out of the
office towards the Community Service Centre (CSC) and went out of the
police station
and proceeded to his home. He reported the
matter to his mother and told her he was hit on the mandible.
An
ambulance was called and it took him to Grey Hospital
for treatment. The plaintiff testified that the third defendant
was
present when he was assaulted by the second defendant. The
third defendant did nothing to protect him or prevent the assault
on
him. He reported the assault on 14 May 2009 at the CSC.
[10]
The plaintiff denied having made a withdrawal statement of the
housebreaking docket. He
denied the signature appearing on the
withdrawal statement to be his. The withdrawal statement is
dated 11 February 2009.
The time of reporting the assault case
on 14 May 2009 became a bone of contention during his
cross-examination. The plaintiff
maintained that though he was
not certain about the time but he reported the matter after 14h00 on
14 May 2009. The plaintiff
was shown hospital records which
indicated that he was at the hospital after 14h10 on 14 May 2009.
He disputed the time appearing
on the hospital records. He
further disputed that he reported his assault to the police at about
10h00 on 14 May 2009.
He later conceded, despite his lack of
recollection of the time he was at the hospital, that he must be
making a mistake about
the time he reported the incident to the
police.
[11]
It was put to the plaintiff that the reason why he did not report the
incident of his assault
to the police on 13 May 2009 on his way out
of the police station, is because he was not assaulted by the second
defendant.
The plaintiff responded repeatedly that “that
is so”.
[12]
The version of the defendants which is consistent with the testimony
of the second and third
defendants, was put to the plaintiff.
He denied it. The import of the version is that the plaintiff
came to report
about someone who had taken his money. The
second and third defendants told him to open a case at the CSC.
The plaintiff
refused. He was smelling strongly of alcohol.
The second defendant pushed him out of the office. The
plaintiff
disputed the version and that the second defendant pushed
him out of the office.
[13]
It was put to the plaintiff that “evidence will be led to the
effect that when Ngcanga
pushed you, the force used was not that
strong because you did not fall and neither did you hurt yourself,
you simply left the
office”. The plaintiff disputed
that. The plaintiff insisted that he was assaulted in the
presence of the third
defendant.
[14]
The plaintiff was shown the statement he gave to the police about his
assault. He confirmed
making the statement and the signature
appearing on it to be his. He, however disputed a portion of
the statement which reflected
that the second defendant accused him
of making noise hence he pushed him out of the office.
[15]
The second defendant testified that on 13 May 2009, he was in his
office with the third defendant.
They were winding-up paper
work preparing to leave the office to conduct investigation in other
matters when the plaintiff came
into the office. He was drunk
because he was smelling strongly of alcohol and was not
co-operating. The plaintiff told
them that there was a person
who took his money. The third defendant advised him to report
the matter at the CSC. The
plaintiff did not want to listen.
As they were about to leave the office, he slightly pushed the
plaintiff out of his office.
The plaintiff got out. He
locked the office. The plaintiff did not bump himself against
anything. He staggered
and proceeded to the direction of the
CSC. He learnt on 14 May 2009 that the plaintiff had laid a
charge against him.
He denied that he assaulted the plaintiff.
He denied the plaintiff’s version about why he went to their
office on 13
May 2009.
[16]
Under cross-examination, the second defendant was confronted with the
evidence of the third defendant
who did not mention that the
plaintiff was drunk. He ascribed that to the fact that he is
the person who was close to the
plaintiff and the third defendant
possibly did not know the smell of alcohol in someone’s breath
because he was not a drinker.
[17]
The second defendant confirmed the contents of his statement that
after leaving his office, the
plaintiff “went to the Station
Commissioner to report the matter”. He explained that the
matter he went to report
was not being attended to and not that he
was assaulted by him. He testified that the context must be
seen in the backdrop
that at the time he was aware of the charges
laid by the plaintiff against him. He confirmed further that
his statement does
not reveal that the plaintiff complained of not
being attended to.
[18]
The third defendant’s testimony is on all fours with that of
the second defendant pertaining
the events that took place in their
office on 13 May 2009. He denied that the plaintiff was
assaulted. He stated that
the second defendant merely pushed
him out of the office and the plaintiff left. He further
confirmed that indeed he investigated
a case in which the plaintiff
was the complainant. The plaintiff later signed a withdrawal
statement on 11 February 2009.
He filed the withdrawal
statement in the docket and took the matter to the Public Prosecution
for decision. On 23 February
2009 the Public Prosecution
endorsed the withdrawal and the docket was closed.
[19]
The third defendant stated that he did not approve of the pushing of
the plaintiff by the second
defendant but he could not do anything as
he was merely pushed once. He further told the second defendant
to leave the plaintiff
alone and advised the latter to open a case
about his money. The third defendant was quizzed about what he
said in a warning
statement which was obtained from him. It
transpired under further questioning that it was a witness statement
that was obtained
from him as he was not a suspect in the matter
involving the plaintiff. He admitted and ascribed that to human
error.
[20]
Mr
Maseti
,
on behalf of the plaintiff, argued that the plaintiff was consistent
in his evidence. It was submitted on behalf of the
plaintiff
that the second and third defendants did not corroborate each other
on the state of sobriety of the plaintiff.
He
further argued that the defence raised by the defendants was a bare
denial. The plaintiff submitted that all
the facts that were
relied on by the defendants especially the evidence of the second and
third defendants were not pleaded.
He referred me to
Jowell
v Bramwell-Jones and Others
[1]
,
I agree with the principle enunciated in the
Jowell
matter as it is the correct exposition of the law. Heher J, (as
he then was) cited with approval the following passage from
Jacob and
Goldrein on
Pleadings:
Principles, and Practice
at
8 – 9 which in parts read thus:
“
. . . For the sake
of certainty and finality, each party is bound by his own pleading
and cannot be allowed to raise a different
or fresh case without due
amendment properly made. . . . The Court itself is as much
bound by the pleadings of the parties
as they are themselves. .
. . Indeed, the Court would be acting contrary to its own
character and nature if it were
to pronounce upon any claim or
defence not made by the parties. . . . To do so would be to
enter the realms of speculation.
. . . The Court does not
provide its own terms of reference or conduct its own inquiry into
the merits of the case but accepts
and acts upon the terms of
reference which the parties have chosen and specified in their
pleadings. In the adversary system
of litigation, therefore, it
is the parties themselves who set the agenda for the trial by their
pleadings and neither party can
complain if the agenda is strictly
adhered to. In such an agenda, there is no room for an item
called “any other business”
in the sense that points
other than those specified in the pleadings may be raised without
notice”.
[2]
C.
Analyses
:
[21]
Rule 22 (2) of the Uniform Rules of Court provides:
“
22 (2) The
defendant shall in his plea either admit or deny or confess and avoid
all the material facts alleged in the combined
summons or declaration
or state which of the said facts are not admitted and to what extent,
and
shall clearly and concisely state all material facts upon
which he relies
”. (My underlining).
[22]
When the plea is a simple denial there is usually no necessity for
the defendant to plead or
state any facts, as the defence is based
upon negating the plaintiff’s allegations
[3]
.
The necessity to state the material facts to be relied on does,
however, arise when the denial implies some positive allegation
on
which the defendant intends to rest the defence
[4]
.
In
Van
Biljoen v Botha
[5]
,
Brink J said:
“
Ordinarily
evidence should not be pleaded, but if it is essential for a pleader
to plead evidence in order to inform the other party
of the case
which he has to meet, he should do so”.
[23]
Rule 22 (2) merely requires the pleader to state the material facts
on which reliance is made
and not the evidence that the pleader will
adduce in support of that fact
[6]
.
[24]
In
hoc casu,
the onus to establish the assault lies with the
plaintiff. The latter has to establish on a balance of
probabilities the
assault on him. The defence raised by the
defendants, as alluded to, is a bare denial and the plaintiff is put
to proof of
his allegations. That is a complete defence.
The plaintiff did not except to it. The plea would not be
excepiable
in any event.
[25]
Reliance by the plaintiff on the
Jowell
matter is misplaced.
The plaintiff argued that the defendant did not plead certain facts,
especially the evidence that the
plaintiff was drunk or had consumed
liquor. This to me, is not a fact to be pleaded but forms part
of the evidence the defendants
lead. These are facts which need
not be pleaded because they constitute evidence.
[26]
In evaluating the evidence, I have to consider various factors.
The version of the plaintiff
is irreconcilable with that of the
defendants
[7]
. The
plaintiff maintains that he went to the office of the third defendant
to follow up on a matter he had laid charges.
He saw a person
wearing his stolen clothes and went to the third defendant to report
that and for the latter to take urgent action.
The second and
third defendants proffer a contrary version which is that the
plaintiff had come to report a person who had taken
his money.
In order to substantiate that claim, the defendants discovered the
docket wherein the Public Prosecutor issued
a certificate of
nolle
prosequi
dated 23 February 2009 basing that decision on a statement
purportedly made by the plaintiff on 11 February 2009. I say
purportedly because the signatures on his statement (reporting the
events pertaining the theft of his clothes) and the withdrawal
statement appear to be different. However, what cannot be
doubted is the decision of the Public Prosecutor not to proceed
with
the case which was taken almost three (3) months before the
incident. The facts as they are in this regard, do not
establish that the plaintiff had gone to report about the case that
he had withdrawn. I say so in spite of the plaintiff’s
evidence that, that was the purpose of his visit to the police
station.
[27]
The plaintiff testified that when he entered the office he was
running. The second defendant
asked him why he entered his
office in that fashion and enquired whether he was drunk or “high
in drugs”. The
second defendant picked up a stick and
assaulted him on the ribs, knee and face. He spit blood on the
floor and realised
that his jaw was sore. He proceeded and
testified in chief as follows:
“
I
bled and peed on the floor on noticing that my jaw was sore, I then
peed some blood there M’ Lord, Mr Ngcanga came up and
pushed me
on noticing that Mr Mkhosana was again picking up, still carrying
this stick intending to hit me once more, then I ran
out. I ran
home.
On arriving at home I found my mother present at home,
I then reported the incident to her,
she enquired as to where
exactly was I hit and
I told her that I was hit on the mandible M’
Lord, then an ambulance was called for me
.
After the
ambulance arrived I was conveyed to
Grey Hospital M’
Lord
. At Grey Hospital I was taken to casualty M’
Lord. I was then advised M’ Lord that I would be conveyed
to Frere Hospital in East London M’ Lord. Indeed on the
following day I was taken to Frere Hospital”. (
Sic)
(My underlining)
[28]
Further down
Mr Maseti
proceeded as follows:
“
Mr Maseti:
The doctor at Grey Hospital stipulates that he saw you on the 14
th
of May 2009.
Mr Light:
That’s correct M’ Lord.
Mr Maseti:
The doctor saw you on the 14
th
of May, which is the
following day, after you were at the police station.
Mr Light:
That’s correct M’ Lord, after the incident I ran to my
home and I was thereafter taken to hospital
.
Mr Maseti:
On the following day?
Mr Light:
That’s correct M’ Lord, on the following day”.
(My underlining)
[29]
What comes across from the evidence of the plaintiff repeatedly is
that he went to the hospital
on the day of the incident and not, the
following day. He merely confirms that it was the following
day, each time when such
is put to him by
Mr Maseti
. It
is expected that he may confuse the date that he visited the hospital
but not when after he was assaulted he visited
the hospital for
treatment. His testimony is not convincing in the
circumstances, especially in the backdrop of the defendant’s
evidence that when he left their office he had neither been assaulted
nor injured.
[30]
The plaintiff says he was assaulted because he came to the office
running. The defendants
do not dispute that but add to
say that he did not listen to what they told him. He was merely
pushed out of the office because
he did not want to listen.
There is a dispute of fact as to the reason why he had gone to the
office. There is further
an irreconcilable dispute as to what
led to either the pushing or the assault on the plaintiff. Be
that as it may, I have
to rely on the probabilities. It is
common cause that the plaintiff, once before, had laid a charge at
the police station.
He was familiar with the police station,
especially the third defendant who investigated his complaint.
It is further his
evidence that he was assaulted with a stick and
sustained a fractured mandible to an extent that he bled. That
occurred at
the police station and not far from the CSC.
Certainly at that stage his injuries were fresh and could be seen.
He
proffered no reason why he left the police station without
reporting the matter to the police or at the CSC. It was
expected
of him in the circumstances to have reported the incident at
the CSC whilst it was still fresh and both defendants were still
within
the precinct of the police station.
[31]
There is a dispute in the evidence of the plaintiff as to what time
he visited the hospital and
the CSC on 14 May 2009. He
maintained that he went to the police station after 14h00. It
transpired from the records
that he went to the police station on 14
May 2009 at 10h00 to report the incident. This further
contradicts, in a way, the
plaintiff’s evidence that he was
taken to Grey Hospital the following day i.e. 14 May 2009. In
the light of his testimony,
he was taken to hospital first and was
due to be transferred to Frere Hospital the following day. The
medical records reveal
that he was attended at Grey Hospital at 14h10
on 14 May 2009. The confusion, if I may, regarding when the
plaintiff went
to Grey Hospital in relation to the day of the assault
casts doubt as to when he sustained the injuries. I am mindful
that
the information given by him to the nurse and reflected on the
medical records, is to the effect that he was assaulted the previous
day i.e. 13 May 2009. What compounds the issue of whether he
was assaulted is his evidence under cross-examination which
reads
thus:
“
Do you admit that
the most logical thing to do after allegedly being assaulted by
Ngcanga on 13 May 2009 in his office was to report
the assault to the
charge office on your way out?
Mr Light:
That’s correct.
Ms Da Silva:
I put it to you that the reason you did not report any assault on 13
May 2009 when you were
leaving the police station was because you
were never assaulted by Ngcanga at the police station.
Mr Light:
That is so M’ Lord.
Court:
That is so?
Mr Light:
That is so M’ Lord.
Interpreter:
He’s asking me to repeat M’ Lord.
Court:
Yes.
Mr Light:
That is so M’ Lord.
Ms Da Silva:
I also put it to you that you didn’t go to the hospital after
seeing Ngcanga on 13 May
2009 because you were never assaulted when
you left Ngcanga’s office.
Mr Light:
He assaulted me M’ Lord, he is the one who assaulted
me”.
[32]
This contradiction is inexplicable.
[33]
On the probabilities, I am unable to find that the plaintiff was
assaulted by the second defendant.
Even the pushing admitted by
the defendants in the circumstances does not amount to an assault.
I find that the plaintiff
has failed to discharge the onus vested on
him.
[34]
Consequently, the action is dismissed with costs.
_____________________
M
MAKAULA
Judge
of the High Court
Counsel
for Plaintiff: Adv
ZM Maseti
Bhisho
Instructed
by: Baclela
Bukula & Associates
King William’s Town
Counsel
for Defendants:
Adv AM Da Silva
Bhisho
Instructed
by:
State Attorney
c/o Shared Legal
Services
King Williamstown
Dates
Heard: 24 April 2019; 25 April 2019 & 26 June
2019
Date
Reserved: 26
June 2019
Date
Delivered:
29
October 2019
[1]
1998
(1) SA 836
(WLD) at 898 F – J.
[2]
Jowell
page
898 F – J).
[3]
Herbstein
and Van Winsen Practice of the High Courts of South Africa, 5
th
Ed. Volume 1 page 592.
[4]
Nieuwoudt
v Joubert
1988
(3) SA 84 (SE).
[5]
1952
(3) SA 494
at 499 A – B.
[6]
Herbstein
and Van Winsen
supra
at
page 593.
[7]
Stellenbosch
Farmers’ Winery Group Ltd and Another v Martell et Cie and
others
2003
(1) SA 11
(SCA) at para 14 – 15 deals with such instances and
the manner in which such has to be resolved.