Summary of Judgment

1. Introduction

The matter concerned action proceedings for delictual damages arising from the plaintiff’s allegations of unlawful arrest and detention and assault by members of the South African Police Service.

The parties were Xolile Tengile as the plaintiff and the Minister of Police as the defendant, cited on the basis that the alleged conduct was committed by police officials acting in the course and scope of their employment.

The procedural history reflected that the plaintiff’s claim for unlawful arrest and detention was resolved by consent in terms of a court order dated 10 November 2016, in which the defendant was held liable for proven damages arising from the unlawful arrest and detention. The assault claim and the determination of quantum were postponed sine die. The matter subsequently came before the court for the determination of liability on the assault claim only, with quantum standing over for later determination.

The general subject-matter of the dispute was whether members of SAPS assaulted the plaintiff as alleged, and if so, whether the defendant could establish any justification for the force used (including reliance on section 49(2) of the Criminal Procedure Act 51 of 1977), and the appropriate order as to costs at this stage.

2. Material Facts

It was common cause on the pleadings that the incident occurred on 3 June 2012 at or near Gogozayo Administrative Area, Mqanduli, and that the persons implicated were police officers associated with SAPS (alleged by the plaintiff to be attached to the Public Order Police Service (POPS) Unit in Mthatha) who were asserted to have been acting within the course and scope of employment.

On the plaintiff’s version, which was the only evidence led at trial, the plaintiff was driving with two female passengers during the forenoon en route to a church service in Tsolo. At road construction works, traffic was temporarily controlled to a single lane. After traffic began moving, a police vehicle behind him activated lights for him to stop. The plaintiff indicated by hand signal that he would stop at the top of an ascent. The police vehicle then overtook and blocked his vehicle, causing him to stop to avoid collision.

The plaintiff’s evidence was that three police officers (described as not wearing uniform) approached his vehicle. One opened a rear passenger door for the two passengers to alight, while another approached the driver’s side. The plaintiff testified that as the driver’s door was opened, he was immediately assaulted, and the other officers joined in. The assault described included being struck with open and closed fists, being trampled with booted feet, and being dragged on the road. The plaintiff testified that he asked what he had done, and was told the assault was linked to his not stopping promptly when instructed. He further testified that he was insulted in relation to his passengers, placed in handcuffs, and transported to Mqanduli Police Station, during which he was bleeding.

The plaintiff described having sustained injuries which required attendance at medical facilities and asserted ongoing effects impacting his life and career prospects. He also testified that he laid a criminal charge against the implicated police officials under CAS 19/06/2012, which he stated was still pending in the Mqanduli Magistrates’ Court. A docket was handed in as Exhibit A.

The defendant’s pleaded version denied an assault in the form alleged and asserted, in amplification, that minimum force was used to remove the plaintiff from his vehicle after he failed to comply with instructions. The defendant further denied that the plaintiff’s orthopaedic injuries were caused by SAPS members. However, at trial the defendant called no evidence, and the court determined the matter on the plaintiff’s evidence alone.

3. Legal Issues

The central legal questions were whether the plaintiff had proved, on a balance of probabilities, that he was assaulted by members of SAPS, and if so, whether the defendant had proved any justification for the use of force.

The dispute required the court to determine a question of fact (whether the assault occurred as alleged), the application of legal principles to fact (the allocation of the onus of proof and the consequences of the defendant leading no evidence), and the sufficiency of any purported statutory justification (including the defendant’s reliance on section 49(2) of the Criminal Procedure Act 51 of 1977) in the absence of evidence establishing the jurisdictional requirements for that provision.

A further issue concerned the appropriate costs order, including whether costs should follow the result and the court’s approach where the case implicated an important constitutional right, as well as the existence of previously reserved costs (as disclosed by the defendant’s counsel).

4. Court’s Reasoning

The court approached the matter on the basis that the plaintiff bore the onus to prove the assault, and that once assault was proved, the evidentiary burden shifted such that the defendant would have to establish any justification relied upon. The judgment recorded that the parties were in agreement on this allocation of onus.

In evaluating the evidence, the court emphasised that only the plaintiff testified and the defendant led no evidence. The court held that the plaintiff’s evidence on the assault was not gainsaid, and that the version put to the plaintiff in cross-examination could not, without supporting evidence, displace the plaintiff’s account. The court accepted the plaintiff’s version as clear and credible, noting that it was not riddled with contradictions and that his demeanour and candour were satisfactory.

On that basis, the court found that the plaintiff had discharged the onus of proving that he was assaulted by members of the defendant. The court further stated that the defendant attempted to advance a justification that only minimum force had been used and sought to rely on section 49(2) of the Criminal Procedure Act 51 of 1977. However, the court held that there was no evidence establishing that the jurisdictional facts for reliance on that section were satisfied. Applying the principle that a party who asserts must prove, the court concluded that the defendant had failed to prove any justification.

On costs, the court applied the general rule that costs follow the result, and held that there was no reason to depart from it. The court also noted that where a case concerns an important constitutional right, a court retains a discretion regarding costs (including the scale), irrespective of the quantum of damages. The court recorded that the defendant’s counsel disclosed that there were costs previously reserved and submitted that costs should follow the result.

5. Outcome and Relief

The court upheld the plaintiff’s claim for assault and held the defendant liable for the plaintiff’s proven or agreed damages flowing from the assault committed by members of SAPS on 3 June 2012.

The question of quantum was postponed for determination on a date to be arranged with the Registrar.

The defendant was ordered to pay the costs of the action incurred thus far.

Cases Cited

Pillay v Khishna and Another 1949 AD 946.

Mtola v Minister of Police (CA23/16) [2017] ZAECMHC 56 (29 June 2017).

Legislation Cited

Criminal Procedure Act 51 of 1977, section 49(2).

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The court held that the plaintiff proved, on the uncontested evidence presented, that he was assaulted by members of SAPS on 3 June 2012. In circumstances where the defendant called no evidence, the plaintiff’s version was accepted as credible and reliable for purposes of deciding liability.

The court further held that the defendant failed to establish any justification for the force used, including reliance on section 49(2) of the Criminal Procedure Act 51 of 1977, because the defendant led no evidence to prove the jurisdictional facts required for that defence. Liability for damages consequent upon the assault was therefore determined in the plaintiff’s favour, with quantum to stand over.

LEGAL PRINCIPLES

A plaintiff who alleges assault bears the onus of proving the assault on a balance of probabilities. Once assault is established, a defendant who relies on a ground of justification (including statutory justification) bears the burden of proving the facts necessary to sustain that justification.

A version put in cross-examination does not, without supporting evidence, displace credible direct evidence led by the opposing party; where the defendant leads no evidence, the court may accept the plaintiff’s evidence if it is clear, credible, and not materially contradictory.

Where a defendant seeks to rely on section 49(2) of the Criminal Procedure Act 51 of 1977, the defendant must prove the factual basis bringing the conduct within the scope of that provision; absent proof of the required jurisdictional facts, the defence fails.

The ordinary costs principle that costs follow the result remains applicable unless there is a reason to depart from it. In matters implicating important constitutional rights, the court retains a discretion concerning costs, including the scale, even where the quantum of damages has not yet been determined.