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[2018] ZAGPPHC 267
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Mathunyane v Minister of Police (35598/2014) [2018] ZAGPPHC 267 (26 January 2018)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO:
35598/2014
DATE:
26/01/2018
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
In
the matter between:
M
ATHUNVANE
TSHARARA
RICHARD
Plaintiff
versus
MINISTER
OF
POLICE
Defendant
JUDGMENT
MPHAHLELE
J
[1]
The plaintiff instituted action against the defendant for damages
arising from an assault.
[2]
At the commencement of the trial, the merits for liability and
the quantum were separated in terms of rule 33(4) and the issue of
quantum was postponed
sine die.
[3]
The defendant admitted that on 11 July 2011, members of the defendant
arrested and detained the plaintiff on reasonable suspicion
of having
committed a schedule 1 offence(s) as contemplated in section 40(1)(b)
of the Criminal Procedure Act 51 of 1977 (as amended)
which are
offences of housebreaking and theft. The plaintiff conceded that the
arrest was lawful and his claim against the defendant
has its cause
on the premise of assault. The defendant denies that the plaintiff
was assaulted.
[4]
The plaintiff, a 49 year old male person, testified that members of
the South African Police Services arrested him on 10 July
2011 at his
cousin's place. He was assisting his cousin, a music disc jockey to
put music on a DVD and a laptop. At the time of
his arrest, the
police found him sleeping in a bedroom with his cousin (Evans Selape
Mathunyane). One of the police officers hit
the plaintiff with a
pistol on the left eye. The said police officer then instructed the
plaintiff to lie on the bed so he could
handcuff him. The police
officer was later identified as Mr Thobakgale.
[5]
After handcuffing the plaintiff, two other
police officers arrived and assaulted the plaintiff
whilst he
was lying on the bed. He identified one of the police officers
involved as Mr. Masuku. Masuku was wearing civilian clothes
whilst
the other unidentified officer was wearing police uniform. These
officers assaulted the plaintiff and punched him all over
his body.
They also used a rifle in the assault. The assault caused his left
hand to be broken. The police officers caused the
plaintiff was to
wear Evans' trouser, which happened to be big, without a belt. The
police officers did not allow the plaintiff
to put on his shirt and
shoes.
[6]
The officers took the plaintiff and Evans to an unmarked Nissan
bakkie without a canopy parked inside the yard and continued
to
assault them. They instructed them to lie down inside the Nissan
bakkie. Outside the house were many people who the plaintiff
could
not identify or tell whether they were police officers or not as it
was dark. The Nissan bakkie then drove out of the yard
for
approximately 500 metres to a point where the plaintiff and Evans
were moved to the back of a marked police bakkie (the police
bakkie).
The police bakkie had a canopy and blue lights. The plaintiff
remained handcuffed.
[7]
The police officers then took them to the plaintiff's parental home
which was about 6,5 kilometres away. Upon arrival there,
the officers
took them out of the police bakkie. The plaintiff was also assaulted
at his parents' home. The officers searched the
property and the
search yielded nothing. The police denied the plaintiff's mother an
opportunity to give him a shirt and shoes
to put on. The officers
said he was a thief and deserved to walk around without a shirt and
shoes. Plaintiff was then pushed back
into the police bakkie, still
in handcuffs.
[8]
Upon arrival at the Hlogotlou police station at about 02h05, the
plaintiff was taken out of the bakkie straight to the charge
office.
The officer who was instructed to take the handcuffs off the
plaintiff informed the officers present in the charge office,
in
particular Thobakgale, that the plaintiff's hand was broken. Their
response was that plaintiff be taken to a cell, the officers
indicated that they wanted to sleep and would only attend
to the plaintiff the following day. He was then locked in
a cell with
fifteen other inmates. The other inmates noted the injury on the
plaintiff's hand and they tried to get the attention
of the
police to no avail.
[9]
The plaintiff stated that he was never assaulted by any of the
inmates in the cell. It was on a cold winter night and he never
fell
asleep at all in the cell due to the painful hand. He did not receive
any medical attention for the injury to his hand. In
the morning,
just before 06h00, the officers on duty attended at the cell to count
them, and one of the inmates asked them why
they brought the
plaintiff who was injured in the cell. In response, the officers
indicated that they were merely following instruct
ions.
[0]
The plaintiff was taken to the Klipspruit clinic, Hlogotlou at 10h00
in the morning in a police bakkie. He rode in the
bakkie with both
feet cuffed. A nurse at the clinic diagnosed him with a
fracture and was given a referral letter
to St.
Ritas hospital. The officers took him back to the
police station and only took him to the hospital
at around
15h00 on the same day. At the hospital he was examined by a
doctor who requested the officers to remove the
cuffs. He was
diagnosed with a fracture and a plaster of paris was applied to his
injured hand. He was thereafter taken back to
the police stat ion.
[11]
The plaintiff appeared in the Moutse Magistrate's court on the
Wednesday, 13 July 2011. In response to a query raised by the
Magistrate, he reported that he was assaulted by the police officers.
The Magistrate then advised him to lay a criminal charge
against the
officers. He was only released on bail 13 days after the date of his
arrest. After his release, he opened a criminal
case at Motetema
police stat ion as the Magistrate advised him not open the case at
Hlogotlou police station. Under cross-examination
the plaintiff
denied that the Magistrate advised him to lay a criminal
case and not a civil claim. He denied that he
was on the run from the
police and stated that he was not aware that the police were looking
for him. He denied that Thobakgale
ever enquired with him as to why
he ran away from the police. He further denied the existence of any
pre-existing injuries before
the assault by the police officers.
[12]
Sellane Evans Mathunyane testified as follows: On 10 July 2011
at 20h30 he was with the plaintiff at his cousin's place,
one Poo or
Mandela. They were listening to music before going to sleep. Whilst
sleeping with the plaintiff with the
light on,
he heard someone calling the plaintiff 's name. The plaintiff
woke up and Mathunyane noticed a man
hitting the plaintiff with a
short gun in the face. This was the man who called out the
plaintiff's name. The plaintiff fell from
the bed during the beating
and two other officers, clad in police uniform, entered the room. As
per the police instruction they
put on trousers whilst the
fficers were busy assaulting them. They ended up wearing
each other's' trousers, vice
versa. Only the
plaintiff was cuffed. He denied the
defendant's version that
he and the
plaintiff were cuffed together.
[13]
Mathunyane testified that at the plaintiff' home the officers took
the plaintiff with into the house whilst he remained outside.
Whilst
outside, the officers assaulted him and told him to go home to sleep.
He then went to his parents' home. He never saw the
plaintiff again
after that incident. He and plaintiff grew up together and he
maintained that the plaintiff had no pre-existing
injury to his left
hand. Mathunyane corroborated plaintiff's version of events in all
material respects with regard to what happened
when he was in the
presence of the plaintiff.
[14]
Kwena Andrew Thobakgale, a police officer, salient testified that on
10 July 2011 he was involved in the arrest of the plaintiff.
The
salient part of his evidence is that the arrest took place at
Dikgalaopeng Village, a section of Tafelkop at the house of a
girlfriend of the plaintiff's cousin (Mathunyane). The
plaintiff was a suspect in casenumber CAS37/07/2011 in relation to
an
offence of housebreaking committed at the plaintiff's place of
employment.
[15]
Upon arrival at the home of Evan's girlfriend, they called out
hoping someone from the house would open for them, all
of these
was in vain. As the gate was locked, Thobakgale jumped over the
fence in order to gain access to the house.
Mr. Mafalo, a fellow
officer, accompanied him as back-up. The other officers, namely
Masuku, Seloga and Moloto remained outside
the premises.
(Masuku and Seloga have since passed on).
[17]
A young man opened the door for them and pointed out the room
in which the plaintiff was sleeping. The young man
opened the door and switched on the light of the room in
which the officers found the plaintiff and Evans sleeping.
The
officers then woke up the plaintiff and Thobakgale enquired with him
as to why he (the plaintiff) was fleeing from
them.
The plaintiff indicated that he was going to
attend at the police station the following
day. Whereupon
Thobakgale accused him of lying as he had information that the
plaintiff was fleeing to Pretoria the following day.
The plaintiff
responded in the positive that he knew why the police were looking
for him. Thobakgale then handcuffed the plaintiff's
left hand with
Mathunyane's right hand. Both the plaintiff and Mathunyane never
resisted being handcuffed. Mathunyane was no suspect,
he was
handcuffed because his mother asked Thobakgale to bring him home
should they find him in the company of the plaintiff.
[18]
Thobakgale found the plaintiff sleeping on top of blankets, fully
clothed with only his shoes off. After handcuffing the plaintiff,
Thobakgale gave him an opportunity to put on his shoes as per
request. Thobakgale then explained to the plaintiff his
constitutional
right, as he was explaining the rights to the
plaintiff, the other officers whom he left outside the premises
entered the
room. They then left for the plaintiff's home to search
for exhibits. The plaintiff and Mathunyane were put at the back of
police
bakkie. There was another vehicle used in the operation,
viz.
an unmarked, open bakkie as well as a vehicle belonging to the
informer's friend. Thobakgale stated that during he never assaulted
the plaintiff or Mathunyane during the arrest and did not notice
anyone assaulting them. He stated that all the police officers
involved in the arrest were had firearms.
[19]
They found Mathunyane's mother at plaintif f's home and then
Mathunyane was handed over to his mother. The plaintiff was
then asked to hand over the items stolen from Metro where he worked
as a guard. The plaintiff then pointed out the items
which were then put in the open bakkie. The plaintiff was
then taken to Hlogotlou police station. They however went
searching
for plaintiff's co-worker, one William who was also suspected of
committing the offence with the plaintiff. After finding
William,
they proceeded to Hlogotlou police station. The plaintiff was
eventually locked up at 02h05.
[20]
On detention, no injuries were noted on the plaintiff. If any
injuries were noticed on the plaintiff, he would not have been
detained. In such a case, the CSC (Community Service Centre) will
organise guards for the injured accused person. If the injured
accused person is however detained the injuries would be registered
in the occurrence book. The police would then summon an ambulance
to
take the injured to hospital for medical attention. But the police,
if capable, they would take the injured accused person to
hospital
for medical attention.
[21]
Under cross-examination, Thobakgale stated that he noticed a long
stitch mark on the plaintiff's hand at the time he was completing
the
docket. He could not recall if it was the right or left hand.
Thobakgale failed to record this injury in the occurrence book.
Thobakgale knew about the assault case against him reported at the
Motetema police station. He informed the officer during an interview
that he, and his colleagues present at time of plaintiff's arrest,
never assaulted the plaintiff.
[22]
Constable Madimetja Andries Mafalo was involved in the arrest of the
plaintiff at relative's home where they found the plaintiff
and
Mathunyane in a room. He remained at the door when Thobakgale
approached the men, handcuffed them and then woke them up. Thobakgale
informed the plaintiff that he has been looking for him and the
plaintiff informed him that he was intending to report at the police
station. Plaintiff and Mathunyane were then locked into a police van
with a canopy. Mafalo was the driver of the van with a canopy.
During
this period, plaintiff and Mathunyane were never assaulted by any of
the officers present. Constabel Mafalo corroborated
Thobakgale's
version of events.
[23]
They then drove to the plaintiff's home in two vans. He never saw the
Toyota Hilux belonging to informer's friend. Upon arrival,
only
Thobakgale, Masuku and Seloga entered the plaintiff's home whilst he
remained in the van. Thobakgale returned with the plaintiff,
having
left behind the gentleman found sleeping with plaintiff. Masuku and
Seloga were carrying exhibits which were then placed
in the unmarked
van. As per Thobakgale's instruction they went searching for another
suspect. On finding the suspect, they took
both the suspect and
plaintiff to the police station. During the whole process, he did not
witness any assault on the plaintiff.
[24]
The versions of the plaintiff and that of the defendant's witnesses
regarding the assault are mutually destructive. In
Stellenbosch
Farmers ' Winery Group Ltd
&
Another v Martell ET CIE
&
Others
2003 (1) SA 11
SCA the court stated the following
regarding resolving factual disputes:
"[5]
On the central issue, as to what the parties actually decided, there
are two irreconcilable versions. So too on a number
of peripheral
areas of dispute which may have a bearing on the probabilities. 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 wit ness 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's
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 extracurial 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's 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 . The hard case,
which will doubtless be
the rare one, occurs when a court 's credibility findings compel it
in one direction and its evaluation
of the general probabilities in
another. The more convincing the former, the less convincing will be
the latter. But when all factors
are equipoised probabilities
prevail."
[25]
The defendant denied that the plaintiff was assaulted or injured
during the arrest. However, Thobakgale's evidence is that
he noticed
the stich mark on the plaintiff's hand when he was completing the
docket. The police did not record the plaintiff's
injury in the
occurrence book at the time of his detention. This seems to have been
a deliberate attempt to dissociate the police
from the injury. If it
were not so, they would have simply recorded the injury to indicate
that the plaintiff had the injury when
he was arrested or detained.
[26]
There is undisputed evidence that the police took the plaintiff to
the clinic in the morning of his arrest and to the hospital
later
that day. If the plaintiffs' inmates caused the injury, the
probabilities are that he would have reported the incident to
the
police. The probabilities are also that the plaintiff would not have
gone to bed with a broken hand and continued to sleep
peacefully
until Thobakgale woke him up during the arrest. I find the
plaintiff's version that he could not sleep throughout his
first
night in the cells due to the excruciating pain caused by the broken
hand more probable and in line with his evidence that
the injury
occurred during his arrest.
[27]
The plaintiff informed the court about the assault during his first
appearance in court. He also laid a criminal charge against
the
police on his release on bail. I find the conduct of the plaintiff in
this regard consistent with that of a person who seeks
justice and
redress alter violation of his bodily integrity and dignity. I must
add that the evidence of the plaintiff's
witnesses was reliable
and credible. Having taken into account the mutually exclusive
versions of the plaintiff and the defendant,
I am satisfied that the
version of the plaintiff is more probable than that of the defendant.
Accordingly, I make the following
order.
[29]
in the circumstances, the following order is hereby made:
1.
The defendant is liable to pay 100% of the plaintiff's proven or
agreed damages caused by
the assault on the plaintiff on 11 November
2011.
2.
The defendant to pay the costs.
_____________________________
S
S MPHAHLELE
JUDGE
OF THE HIGH COURT,
PRETORIA
For
the plaintiff: Advocate F H H Kehrhahn
Instructed
by: Mphela & Associates
For
the defendant: Advocate A Moja
Instructed
by: The State Attorney