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[2019] ZAECMHC 73
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Rawu v Minister of Safety and Security (3523/2015) [2019] ZAECMHC 73 (28 November 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, MTHATHA)
CASE
NO. : 3523/2015
Date
of hearing: 29 and 30 July 2019
Date
delivered : 28 November 2019
In
the matter between:
MANDLANANDILE
MAXWELL RAWU
Plaintiff
And
MINISTER
OF SAFETY AND SECURITY
Defendant
JUDGMENT
MAJIKI
J:
[1]
The plaintiff, a 48 year old male sued the defendant for damages he
suffered as a
result of the alleged wrongful conduct of the
defendants’ servants. The defendant is sued in his
capacity as the person
who is vicariously liable for delicts
committed by the members of the South African Police Service (SAPS)
whilst acting within
the course and scope of their employment with
the defendant. The action is defended by the defendant.
[2]
The plaintiff had initially cited the defendant as the minister of
safety and security.
However, during trial the parties agreed
that the party who was defending the action was the minister of
police. The objection
to the citation of the former was
therefore abandoned by the defendant. By agreement between
parties the matter proceeded
on liability aspect of the claim only.
[3]
According to the plaintiff on 19 October 2015, at night, he was
wrongfully arrested,
detained and assaulted by the members of the
SAPS. His arrest was without a warrant of arrest. In his
plea the defendant
denied that his officers were ever involved in the
actions alleged by the plaintiff and further stated that he had no
knowledge
of the injuries allegedly suffered by the plaintiff.
[4]
Only the plaintiff tendered evidence during trial. He together
with his wife
testified. Most of the evidence about the people
who arrived at night, knocked, assaulted and took the plaintiff was
not
placed in dispute. The plaintiff testified that he reported
the incident at central police station, Mthatha. In
cross-examination
it was put on behalf of the defendant that those
people could not have been members of SAPS. There was no record
of members
of SAPS having been dispatched to that area on the day in
question. Further, at central police station there was neither
a record at the instance of members of SAPS, of the plaintiff having
been arrested nor of a report of the arrest by the plaintiff
himself. However, no evidence was placed before court in
support of the said suggestion. In the circumstances, the
version of the plaintiff stands uncontroverted.
[5]
Both witnesses testified that on the night in question they were
sleeping at their
homestead with their one (1) year old baby.
Around 23h00 they heard people knocking at their two roomed structure
saying
they were police. They lit torches and said they wanted
the plaintiff. The witnesses said those were three (3) police
in police uniform (full police clothing with boots and caps), two (2)
males and one (1) female. The police tags with their
names were
concealed. Mrs Rawu did not see the police badges in their
clothing. She opened the door against her husband’s
wishes. She jumped up because the police proceeded to their
son’s separate four cornered structure. She heard
her son
saying he was not his father and then heard gun shots. She saw
that the one that was positioned directly opposite
her was firing the
shots. She shouted her son’s name, Patrick and he
responded. She opened after the second shot
was fired.
[6]
Both witnesses said the room was lit with electric lamp. Two
police entered
and handcuffed the plaintiff. They neither
had a search warrant nor a warrant of arrest. They requested to
search
for a firearm, the plaintiff told them he never owned a
firearm. They searched their bedroom and the dining room.
They
left things in a mess. The plaintiff specifically said
they turned the bed upside down and caused the couple’s one (1)
year old child to fall. They also searched the other rooms the
one where their son was and the other where the rest of the
children
were. During the search they were in the plaintiff’s
company, whilst he was in handcuffs.
[7]
Mrs Rawu said she then saw the police officers leaving with the
plaintiff. She
turned back at the gate and did not see any
motor vehicle, even though her husband had told her he was taken away
in a van.
After midnight the plaintiff returned with the
police. He was crying. Two police officers entered and
left with the
plaintiff once more. It was only later after 3am
when the plaintiff returned that he related to her that he had lied
earlier
and said the firearm was under the wardrobe. They
all came back and still found nothing. He was dirty, swollen
in
his mouth and face. His wrists were injured. He told her
where he had been taken to, in Langeni and Befula areas,
around
Mthatha. He was assaulted, stamped with booted feet on his body
and tortured with a plastic. The plaintiff went
to report at
central police station, the next day. They received a police
confirmatory short message service (sms) of his
report. The
plaintiff only went to hospital after three (3) days because they had
no money.
[8]
In his testimony the plaintiff said the police refused to disclose
their names.
They told him that they were taking him to central
police station, despite the fact that they did not find him in
possession of
a firearm. He said he walked with them for about
300 metres for about 15 minutes before they could reach where they
had concealed
their motor vehicle. When they were close to it,
they ordered him to turn around and move backwards towards the motor
vehicle.
He saw that the motor vehicle was a white van. He
was never made to see the markings of the van. They made him
squat
at its tail gate and pushed him into the van. They drove
in high speed without being considerate of him. He kept on
balancing in between the seats at the back of the van.
[9]
He was made to alight at an area next to Langeni factories, infront
of some entrance.
They kicked and assaulted him until he said
the firearm was under his wardrobe. They said if he had said so
earlier he would
have just been arrested. He said he lied
because he was hurt by hard pressed handcuffs. They went home
and still did
not find the firearm. They took him again, they
stopped along the road at Mhlahlane.
[10]
He said he asked them to phone his wife or their superiors,
including, Loyiso Mdingi, those two
knew that he never owned a
firearm. The female officer then said he must be released.
Another police said he must be
killed and his death be reported the
next day. The female police officer refused and said he must be
released. He was
then uncuffed and released at 02h00. He
walked for about 1
1/
2
hours back
home. He found his wife with his two neighbours and the
children. He reported to them what happened to him.
[11]
He said he sustained injuries. His body was swollen and sore.
Both his wrists were
injured. In court he showed healed marks
that were still visible in both wrists. The next morning he
went to report
at central police station. He was given a case
number and the investigation officer said he would send him a
confirmation
sms. He went to hospital and was given treatment.
[12]
He was hurt that he was abused in front of his children, when he had
not committed any wrong.
Other people were watching from their
homes after hearing the gun shots.
[13]
The issue for determination is whether the plaintiff proved that he
was arrested, detained and
assaulted by the members of the SAPS, if
yes, how long did his ordeal last in their hands.
[14]
The evidence led on behalf of the plaintiff was clear and credible.
The plaintiff and Mrs
Rawu did not contradict each other in any
material respects. Mrs Rawu was honest and did not exaggerate.
She could
have said she saw a police vehicle or any vehicle which was
used to transport the plaintiff, but she said she did not see it.
Similarly, with the police badges, she said she did not see them.
The plaintiff was honest as well in his testimony.
He said he
did not see the markings of the white van he was in. Both
witnesses appeared not to be sophisticated but were
impressive.
[15]
The appellate division in
Ocean Accident and Guarantee Corporation
Ltd
v Koch
1963
(4) SA 147
adopted the principle stated in
Miller v Minister
of Pensions
1947 (2). ALL ER
372, which principle has become trite, regarding the standard of
proof in civil cases. It was said,
“it must carry a
reasonable degree of probability but not so high as required in a
criminal case. If the evidence is
such that the tribunal can
say ‘we think it is more probable than not’ the burden is
discharged, but if the probabilities
are equal it is not”.
[16]
The uncontroverted evidence the plaintiff’s witnesses tendered,
does in a balance of probabilities
prove that the plaintiff was in
the hands of the police for the duration of four (4) hours on 19
October 2015. He was handcuffed
after 23h00 and was released after
2h00, but had to walk and arrived at home after 3h00.
[17]
The people who took him identified themselves as police. They
said they were taking the
plaintiff to central police station.
They also said if he had told them earlier where the firearm was,
they could have just
arrested him, that is, they would not have
assaulted him. They were clothed in full police uniform.
They used handcuffs.
When the plaintiff mentioned a person in
the name of Loyiso Mdingi, who he said was a high ranking official in
SAPS, they were
shocked and released him. Over and above the
period of detention they made him walk for 1
1/
2
hours
back home. They were as responsible for his walking alone in
those ungodly hours. His children witnessed
their entire
homestead being ransacked, the shootings and their father being taken
away in handcuffs.
[18]
No evidence was led on behalf of the defendant to prove either
that no vehicle together
with members of SAPS was dispatched to the
plaintiff’s area on that day or account for the
whereabouts of the
members who were on duty that day. If
it could be validly suggested that none were so dispatched, clearly,
the source of
that information could have been presented to court
together with that of where members on duty had been, if there were
officers
who had left in police vehicles that night. The
matter has to be decided on the plaintiff’s version, which I
have found to have proved his case on a balance of probabilities
[19]
In the circumstances the plaintiff discharged the onus to prove his
case against the defendant.
In
the result,
1.
The minister of police is hereby held liable for Mr Rawu’s
proven damages.
2.
The minister of police is ordered to pay the costs of the action
todate.
___________________________________
B
MAJIKI
JUDGE
OF THE HIGH COURT
Counsel
for the plaintiff: Mr Rili
Instructed
by
:
Messrs
Mjulelwa Inc. Attorneys
Office No. 207A – 2
nd
Floor
Metropolitan Place
MTHATHA
Counsel
for the defendant: Ms Brauns
Instructed
by
: Messrs
Lesley-Ann Brauns & Associates Inc.
Office No. 4 – 1
st
Floor, Phylis Court
49 Leeds Street Corner Cumberland
Street
MTHATHA