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[2017] ZAKZDHC 39
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Shezi v eThekwini Municipality (7762/2015) [2017] ZAKZDHC 39 (11 October 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
LOCAL DIVISION, DURBAN
CASE
NO: 7762/2015
In
the matter between:
SAMUKELISIWE
LONDIWE LORRAINE
SHEZI
Plaintiff
and
ETHEKWINI
MUNICIPALITY
Defendant
ORDER
[1]
The defendant is liable to compensate the plaintiff for one hundred
per cent (100%) of her proven or agreed damages.
[2]
The defendant is directed to pay the plaintiff’s costs of suit
on the High Court party/party scale in respect of the issue
of
liability.
[3]
The plaintiff and her witness Velinkosi Mncwango are declared
necessary witnesses.
[4]
The trial is adjourned
sine die
for the determination of
quantum.
JUDGMENT
Henriques
J
Introduction
[1]
The plaintiff sues the defendant for damages arising from an alleged
unlawful assault by members of the Metro Police. The defendant’s
plea is one of a bare denial and no particulars are pleaded in
amplification of the denial. At the commencement of the trial, I
issued an order by consent in terms of rule 33(4) and the trial
proceeded solely on the issue of the defendant’s liability.
Pleadings
[2]
The
plaintiff alleges that on 2 November 2014, she was wrongfully,
unlawfully, and without any justification, assaulted and insulted
by
two Metro police officers acting in the course and scope of their
employment with the defendant. Particulars of the assault
and the
insults allegedly hurled at her by such police officers are
pleaded
[1]
as follows:
‘
5.1 at about
10:00pm on the 2
nd
November 2014 the Plaintiff was the
driver of her motor vehicle at the entrance of Caversham and
Underwood Roads in Pinetown when
the Plaintiff’s vehicle was
blocked by a Metro Police vehicle with registration letters and
numbers NDM 15028 (the Metro
Police vehicle);
5.2 two White males who
were dressed in Metro Police uniforms got out of the Metro Police
vehicle with one police Officer pointing
a firearm and, at the same
time, the Plaintiff was punched in the face by the other police
Officer;
5.3 upon being punched
the Plaintiff fell down and the said police officer began kicking the
Plaintiff whilst she was lying on the
ground and he was kicking the
Plaintiff on her head, face and other parts of her body;
5.4 Whilst kicking the
Plaintiff the said police officer uttered words,
inter alia
,
that he cannot even understand whether the Plaintiff was a male or a
female and besides uttering other insulting derogatory words
the said
police officer shouted out that the Plaintiff and her passengers were
“Kaffirs”;
5.5 The said police
officers then conversed with each other and immediately left the
scene with the Metro Police vehicle.’
[3]
In
addition, the plaintiff pleads that at the time of her assault and
being insulted, she had not committed or attempted to commit
any
offence in the presence of the police officers and they had no reason
to suspect that she had committed any offence. The names
of the
police officers were not known to the plaintiff and, despite
requests, the defendant did not provide her with such names.
In the
particulars,
[2]
the plaintiff indicates that she was assaulted by one Metro police
officer whilst the other simply stood by and did not come to
her
assistance. The plaintiff suffered bodily injuries, required medical
treatment and as a consequence of the incident, publications
occurred
in two newspapers in which she was referred to as a lesbian.
[4]
Her damages are computed in the sum of R500 000 in respect of
general damages for her physical injuries, mental anguish,
injuria,
humiliation, indignity, embarrassment and the loss of amenities of
life.
[5]
The
plaintiff called two witnesses and the defendant called three, one of
whom was an occupant in the plaintiff’s vehicle
at the time of
the alleged incident. Various exhibits were handed in during the
course of the trial, most notably exhibit “E”
and exhibit
“C”.
[3]
[6]
The usual admissions applied in respect of the documents contained in
exhibit “C”. I may add that the defendant
did not
discover any documents nor did it prepare a separate bundle and
relied exclusively on the documents contained in the plaintiff’s
bundle of documents at the trial.
[7]
The
plaintiff testified that at approximately 19h40 on 2 November 2014,
whilst driving her VW Polo on Underwood Road in Pinetown,
she took an
incorrect right turn and entered the onramp to the M13. At the time
she was accompanied by Velinkosi Mncwango (“Velinkosi”),
her brother-in-law who was seated in the front passenger seat of her
vehicle and Sithembiso Malinga (“Sithembiso”)
who was
seated behind Velinkosi. As she was residing in Port Shepstone at the
time and the area was unknown to her, Velinkosi was
providing her
with directions to his home in Westville North. The plaintiff was
supposed to travel on Underwood Road to turn right
at the robot
controlled intersection with Caversham Road. When she took the
incorrect turn, Velinkosi informed her of this and
she immediately
stopped her vehicle, put her hazard lights on and reversed towards
the painted island.
[4]
[8]
While waiting to see if it was safe to enter traffic on Underwood
Road and proceed towards the intersection, a marked Metro
police
vehicle, a VW Jetta 5, stopped directly in front of her vehicle with
the engines of the vehicles facing each other. The
blue lights of the
vehicle were on and two white male uniformed Metro police officers
alighted from the police vehicle with their
guns in their hands and
approached the driver side of her vehicle. The plaintiff immediately
alighted from her vehicle to explain
to them that she was lost.
However, before she was able to say anything, one of the policemen
punched her on her forehead and she
fell to the ground. The police
officer then started kicking her all over her body with his boots and
swearing at her, calling her
vulgar names. She heard him use the
words “kaffir” and “fucker” and say to her
that he did not even know
whether she was male or female.
[9]
The plaintiff tried to cover her head and lay in a foetal position to
protect her body from sustaining serious injuries, but
she felt the
police officer’s boots all over her body and heard the vulgar
language, although she could not clearly see who
was using such
language or booting her.
[10]
The plaintiff testified that she understood the words in the context
of her gender and because of her physical appearance.
She testified
that she could not say for certain which of the Metro policemen had
used such vulgar language and whether one or
both of them assaulted
her. During the incident, Velinkosi and Sithembiso were outside of
the vehicle and she heard the Metro police
officers tell them to
“fuck off”. They then told Velinkosi to drive the vehicle
home as the plaintiff was crying and
injured. The plaintiff climbed
into the back passenger seat, with Sithembiso in the front passenger
seat and Velinkosi drove the
vehicle to his home in Westville North.
They arrived at Velinkosi’s home just after 23h00 and the
plaintiff’s sister
helped her and took photographs of her
injuries. At approximately 23h34, the plaintiff, accompanied by her
sister, Velinkosi and
Sithembiso, attended at Westville Hospital
where she was treated by doctors and nurses. Her sister provided all
the relevant patient
information to the hospital staff and
photographs were taken following her treatment at the hospital which
forms exhibit “D”.
[11]
The
plaintiff was subsequently telephoned by reporters from The Witness
and Isolezwe newspapers who interviewed her and took photographs
of
her.
[5]
She testified that prior to and during the assault, she did not say
anything to the Metro policemen and further that she did not
have an
opportunity to do so as they immediately started assaulting her when
she alighted from her vehicle.
[12]
Velinkosi Hamilton Mncwango (“Mncwango”), the plaintiff’s
brother-in-law, corroborated her evidence. He testified
that on 2
November 2014, an incident occurred immediately before the Caversham
/ Underwood Road intersection at approximately 22h00.
The plaintiff
was driving her vehicle from their friend’s place along
Underwood Road and they were proceeding towards the
intersection of
Caversham Road as they were travelling to his home in Westville
North. He was seated in the front passenger seat
and Sithembiso was
behind him in the rear passenger seat. He was providing the plaintiff
with directions to his home as she did
not know the area. It was a
Sunday night and the roads were fairly quiet. Immediately before the
intersection, the plaintiff made
an incorrect right turn onto the
onramp to the M13. He immediately told her to stop the vehicle as she
had taken the wrong turn.
The plaintiff stopped her vehicle, put on
the hazard lights and reversed to the painted island where she
brought her vehicle to
a complete stop. She was stationary there for
a while determining whether it was safe to proceed towards the
intersection when
a Metro police vehicle came in front of them in the
direction of oncoming traffic and parked close to the intersection.
[13]
Two uniformed white Metro policemen alighted from the vehicle with
their firearms drawn and walked towards them. One of them
approached
the driver’s side of the vehicle and the other his passenger
door. The policemen enquired from them what was going
on and forced
them to open the doors and climb out of the vehicle. As they all
alighted from the vehicle, the Metro policeman on
the plaintiff’s
side of the vehicle started swearing and using vulgar language and
asked the plaintiff whether she
was a boy or a girl and kicked and
punched her very badly. He testified that he and Sithembiso did not
have an opportunity to say
anything as the officers told them to
raise their hands and place them on the vehicle. They did so, all the
while the Metro policeman
on their side of the vehicle stood behind
them pointing his firearm at them.
[14]
They observed the policeman on the other side of the vehicle punching
the plaintiff, hitting her and swearing at her until
she fell to the
ground. Whilst she was lying on the ground, he carried on kicking her
and booting her with his feet all the while
pointing his firearm at
them. Neither he (Velinkosi) nor Sithembiso were able to do anything
as they were extremely shocked by
the incident and it was over very
quickly. Eventually, the policeman on their side of the vehicle
demanded that they proceed to
the driver’s side of the vehicle
and he joined the other Metro policeman in kicking and booting the
plaintiff whilst she
was lying on the ground.
[15]
All the while the officers kept on referring to them as “kaffirs”
and “bastards”. The plaintiff was
screaming and crying
and one of them then said to him to put her in the vehicle and “fuck
off”. He and Sithembiso assisted
the plaintiff onto the
backseat of the vehicle and she lay there crying. He then climbed
into the driver’s seat and Sithembiso
sat in the passenger’s
seat next to him. He observed the Metro policemen walking back to
their vehicle and climbing into
the vehicle. As he drove off he took
down the registration letters and numbers of the Metro police vehicle
and also noticed that
the Metro policemen likewise left the scene. He
was extremely disturbed and was very shocked by the incident and was
worried about
the plaintiff as he regarded her as his sister, as he
is married to her sister.
[16]
On arrival at his home, the plaintiff and his wife went to the
Westville Hospital. The following morning they reported the
incident
to the police. Velinkosi testified that he did not accompany them to
the hospital as he was travelling to Mauritius the
next day. As such,
he only reported the incident to the police and provided the police
with a statement a few days after the incident
at the Pinetown Police
Station. That then was the evidence for the plaintiff.
[17]
Adv.
Mfeka
who appeared for the defendant, thereafter made
application for absolution from the instance in terms of rule 39 of
the Uniform
Rules of Court. The relevant provision of rule 39 reads
as follows:
‘
At the close of
the case for the plaintiff, the defendant may apply for absolution
from the instance, in which event the defendant
or one advocate on
his behalf may address the court and the plaintiff or one advocate on
his behalf may reply. The defendant or
his advocate may thereupon
reply on any matter arising out of the address of the plaintiff or
his advocate.’
[6]
[18]
When a
party applies for absolution from the instance at the close of the
plaintiff’s case, the applicable test is not whether
the
evidence establishes what would finally be required to be
established, but whether there is evidence upon which a court
applying
its mind reasonably to such evidence, could or might (not
should or ought to) find for the plaintiff. This is often referred to
as
prima
facie
evidence or a
prima
facie
case. The use of the words “
prima
facie
case” means evidence sufficient to avert a ruling of absolution
from the instance but in addition is sufficient to cast a
duty to
adduce evidence on the defendant.
[7]
[19]
In other
words, it requires an answer from the other party. Normally at
absolution stage, questions of credibility of witnesses
are not
investigated except where the witnesses have palpably broken down and
it is clear that what they stated is not true.
[8]
A court must refuse absolution from the instance unless it is
satisfied that no reasonable court could draw the inference which
the
plaintiff contends for. This means that the court must assume in the
absence of special considerations that the evidence is
true. A court
does not weigh up possible inferences but must determine which one of
the reasonable inferences is in favour of the
plaintiff.
[9]
[20]
Amongst the
issues raised by Adv.
Mfeka
during the application for absolution was the status of the
photographs. At the commencement of the trial, he objected to the
admission of the photographs as, according to his instructions, a
request for copies of them had not been responded to by the
plaintiff’s
attorneys. Subsequent enquiries and e-mails handed
up by the plaintiff’s attorneys revealed that notice had been
given in
terms of rule 36(10) of the Uniform Rules of Court and
correspondence handed up, which had been exchanged between the
parties’
legal representatives, confirmed that copies of the
photographs had been served on the defendant’s attorneys of
record and
signed for by a staff member as per their request. It was
based on this that the objection was ruled unfounded and the
photographs
were admitted into evidence as exhibit “D”.
The effect of such admission into evidence of the photographs
dispensed
with the need to call the photographer and the need to deal
with the authenticity of the photographs.
[10]
[21]
Among the submissions Adv.
Mfeka
made for absolution from the
instance was that the plaintiff had not established a
prima facie
case and there was no onus on the defendant to discharge. He urged
the court to consider the credibility of the plaintiff and her
witness and to find that their evidence was not true. He submitted
that their credibility was seriously questionable as they did
not
corroborate each other and the contradictions and inconsistencies in
the evidence were material. As a consequence, there was
no basis to
conclude that there was a reasonable possibility that a court might
find for the plaintiff. He emphasized the fact
that the versions of
the plaintiff and her witness fell to be rejected, and the
inconsistencies, specifically in relation to the
manner in which the
Metro policemen left their vehicle and the manner in which the
plaintiff was assaulted, were material and therefore
not true and
fell to be rejected.
[22]
He also submitted at this very late stage of the proceedings that the
veracity of the photographs could not be accepted as
the person who
took the photographs did not testify.
[23]
In addition, he also submitted that on the plaintiff’s own
version, she had admitted that when she was interviewed by
newspaper
reporters she willingly and of her own volition advised them that she
was a lesbian.
[24]
He further submitted that having regard to the contents of the J88
report, which was read into the record by the plaintiff,
this
recorded superficial lacerations which was not consistent with the
plaintiff’s evidence and that of the witness regarding
the
nature of the assault described. The inconsistencies in the evidence
of the plaintiff and her witness were so material to the
extent that
the court could not accept it and seriously called into question
their credibility.
[25]
Adv.
Naidu
who appeared for the plaintiff, submitted that the
plaintiff had established a
prima facie
case for the defendant
to answer. He submitted that the inconsistencies in the evidence of
the plaintiff and her witness were not
so material so as to be
rejected and further, that it was not for the court to engage at this
interim stage with an enquiry in
relation to the credibility of the
witnesses. He submitted that the credibility of the witnesses could
not be called into question
as the evidence was dissimilar. After
hearing and considering the submissions of the parties and of the
parties’ representatives,
I dismissed the application for
absolution from the instance with costs and indicated that my reasons
would follow in the judgment.
These are my reasons.
[26]
It is trite that at the absolution stage the test is whether the
plaintiff has established evidence upon which a reasonable
court
might find for the plaintiff. A court does not normally engage in
credibility findings of witnesses unless the evidence is
so palpably
false that it falls to be rejected. I accept that there were certain
inconsistencies and contradictions in the evidence
of the plaintiff
and her witness. Among these was the difference in the plaintiff’s
evidence at court regarding the assault
and that which was stipulated
in the letter of demand and pleaded in the particulars of claim. The
plaintiff relied on an assault
by a single Metro police officer and
an omission by another Metro police officer. In considering the
evidence, one must consider
the evidence as a whole, and not in a
piece meal fashion.
[27]
The plaintiff’s evidence as suggested by Adv.
Mfeka
was
that she was assaulted by both Metro police officers. I differ
somewhat with what Adv.
Mfeka’s
submissions were insofar
as what the evidence of the plaintiff was. My notes in the matter
reflect that the plaintiff testified
that whilst lying in a foetal
position on the floor, covering her body to protect herself from the
blows as she was assaulted,
she could not see precisely whether or
not the second Metro police officer also participated in the assault.
Be that as it may,
liability arises on the part of the defendant for
the conduct of its Metro police officers either in the form of an
active participation
in an assault or from an omission in the event
of the court finding an assault did occur.
[28]
The difficulty which I had in granting an application for absolution
was that at no stage during cross-examination of the witnesses,
when
the defendant’s case was put to the witnesses, was it disputed
that the two Metro police officers were on the scene.
This coupled
with the fact that there was an allegation of an assault and verbal
abuse, calls for some response by the defendant
as the Metro police
officers were on the scene. This is despite the inconsistencies in
the evidence of the plaintiff and her witness.
[29]
The
defendant then called Sithembiso Canaan Makiwana Malinga as a
witness.
[11]
He confirmed he
was a passenger seated in the rear passenger seat of the motor
vehicle driven by the plaintiff on the night of
the incident. He and
the plaintiff had travelled to Pinetown to pick up Velinkosi who was
having dinner with his family at a friend’s
home. Velinkosi was
seated in the front seat giving the plaintiff directions. He
confirmed both the plaintiff’s and Velinkosievidence
that
she had taken the wrong turn and reversed the vehicle onto the
island. His evidence further corroborated the plaintiff’s
that
the Metro police vehicle stopped directly in front of them and
differed somewhat from what Mncwango testified to.
[30]
He confirmed that the vehicle was parked in front of them on the
island and that two uniformed, white policemen alighted from
the
Metro police vehicle with their firearms drawn. One Metro policeman
proceeded to the driver’s door of the vehicle and
the other to
the passenger side of the vehicle. The police officers ordered them
to alight from the vehicle and the one on the
driver’s side of
the vehicle pulled the plaintiff out of the car and assaulted her.
The other Metro police officer pointed
the firearm at them and
started swearing at them calling them “kaffirs”.
[31]
After the Metro policeman had pulled the plaintiff out of the
vehicle, he started hitting her and swearing at her. The plaintiff
then fell to the ground and that was when the other Metro policeman
on their side of the vehicle told them to place their hands
on the
roof of the car. At this stage the plaintiff was lying on the floor
and he could hear her crying and screaming. The policeman
on their
side of the vehicle then ordered them to move to the other side of
the vehicle and he joined the other policeman in assaulting
the
plaintiff.
[32]
He testified that whilst on the passenger’s side of the vehicle
with his hands on the roof of the vehicle, he noticed
the Metro
policemen boot the plaintiff, as he was facing them. In addition,
when they moved around the vehicle he also saw the
first Metro police
officer boot the plaintiff and noticed the second Metro police
officer join in the assault after he had told
them to place their
hands on the roof on the driver’s side of the vehicle. During
the assault, neither he nor Velinkosi could
do anything to stop the
Metro policemen as their firearms were drawn and pointed at them
whilst the assault was taking place.
[33]
He heard the one policeman ask the plaintiff whether she was a man or
a woman and swore at her whilst she was lying on the
floor and they
were booting her with their feet. After they had finished the
assault, one of the Metro policemen asked Velinkosi
to drive the
vehicle. The plaintiff climbed onto the backseat and he sat next to
Velinkosi in the front of the vehicle. It was
then that the policemen
had told them to “fuck off”. As they left the scene they
noticed the Metro police vehicle also
follow and leave the scene.
They then drove to Velinkosi’s house in Westville and travelled
to the Westville Hospital accompanied
by the plaintiff’s sister
and Velinkosi.
[34]
Mr Malinga
was shown a typed, unsigned statement, exhibit “C”.
[12]
He confirmed after reading the document in court that the contents of
the document were similar to a statement he had made to a
police
officer, one Mr Naidoo. He did not know however where the document
originated from and could not confirm that this was a
statement he
had made as he had not typed the statement, nor was he aware of who
had typed it and it did not have his signature
appended to it. He
confirmed that over the last two days whilst sitting outside court
waiting to testify, he observed two Metro
policemen who were the same
policemen who were on the scene on the day of the incident. He also
recognised their vehicle. He confirmed
that at the time of the
incident Velinkosi had taken down the registration letters and
numbers of the vehicle.
[35]
The next witness to testify was Emmanuel Jardine, an inspector in the
Metro police services. He testified that he has been
in the employ of
the Metro police services since 1991 and a member of the Dog Unit
since 1994. On the day in question, he and Inspector
Payne were
performing crime prevention duties in the Pinetown area, having
reported for duty at 18h00 that evening. Whilst patrolling
the
Pinetown Crompton Road area, they received a call over the radio that
there had been a hijacking which had occurred earlier
on in the day
and the description of the vehicle that had been taken during the
hijacking was a VW Polo, dark in colour. They were
patrolling the
area looking for a similar vehicle.
[36]
As they entered Crompton Road turning into Underwood Road, he noticed
a VW Polo vehicle facing oncoming traffic. It was parked
on Underwood
Road where one takes the onramp to enter onto the M13. The vehicle
was parked in an area which was not well lit and
the driver’s
door of the vehicle was open. This looked suspicious to him and he
stopped the Metro police vehicle to investigate.
He testified that he
put the blue lights of the Metro police vehicle on as well as the
headlights. He and Inspector Payne then
alighted from their vehicle
and approached the other vehicle with their firearms drawn. As he got
closer to the VW Polo, the driver
stepped out of the vehicle and he
asked the occupants if everything was ok. It was at this stage that
the driver started swearing
and shouting at them, asking them why the
Metro policemen had stopped them. He also observed two other
occupants in the back of
the vehicle who then alighted from the
vehicle as Inspector Payne had instructed them to do so.
[37]
He proceeded to the driver’s side of the vehicle and noticed
the keys to the vehicle lying on the driver’s seat.
His
attention was focused on the driver and he could not recall exactly
how the two occupants had alighted from the vehicle. As
he tried to
reach for the keys of the vehicle, the driver bent over him and tried
to grab the keys from him. He pushed the driver
away with his arm and
shoulder and that is when the driver fell to the ground. It was at
that stage he realised that the driver
was very drunk. The driver
continued being very abusive and continued shouting and swearing at
them.
[38]
He testified that at that stage he was not sure if the driver of the
vehicle was a male or a female because of the way the
driver was
dressed. The driver of the vehicle was tall, with short hair and was
wearing shorts and a t-shirt and kept on shouting
at him that she was
a woman and that he could not search her.
[39]
It was then that he realised that the driver was a woman and he could
not conduct a search. He searched the motor vehicle and
everything
seemed alright. At that stage Inspector Payne spoke to the other
occupants of the vehicle and asked him (Jardine) for
the keys to the
vehicle.
[40]
Jardine indicated that what he understood by this was that Payne was
to hand the keys to one of the occupants who did not appear
to be
drunk so that he could move the vehicle to a safer location. He
confirmed that when they first approached the vehicle, given
where
the vehicle was situated, and the manner in which it was parked with
the door open, they approached their vehicle with their
firearms
drawn and he had shouted for the occupants to alight from the
vehicle.
[41]
Payne handed the keys to one of the occupants who then moved the
vehicle to a safer location as it appeared as though the driver
was
too drunk to drive. They then left the scene and continued searching
for the hijacked vehicle. He denied that he or Payne swore
at the
plaintiff or any of the occupants in the vehicle and further, that
either he or Payne assaulted the plaintiff at any stage.
[42]
A few days after the incident he was called into his director’s
office and questioned as to whether he was on duty on
the day of the
alleged incident. Both he and Payne confirmed that they were and he
was advised that a criminal charge had been
laid against him for an
assault alleged to have occurred on 2 November 2014. He subsequently
reported at the Pinetown Police Station
where he was formally charged
and released on warning. He instructed a private legal representative
and attended at court pursuant
to a written notice to appear.
[43]
On the day in question, the criminal charges against him were
withdrawn and he was advised that it was due to insufficient
evidence. He indicated that the reason why it took a few days for the
incident to be reported and for him to be called in was that
he was
informed that the registration number of the vehicle reported as
being involved in the incident had been incorrect. It had
been
reported that the Metro police vehicle involved in the incident was
NDM 5038 whereas the vehicle he and Payne were in on the
day of the
alleged incident was NDM 15028.
[44]
He confirmed that no disciplinary proceedings were instituted against
either him or Payne and that the criminal charges were
not
reinstated. He testified that neither he nor Payne made an entry in
their pocket books or reported the incident to their commander.
He
confirmed that at the time of the incident he recalled the plaintiff
had a small cut to her eye but he could not recall exactly
which eye.
He testified that the plaintiff sustained this cut when she fell to
the ground.
[45]
The next witness for the defence was Norman Jack Leslie Payne,
Inspector Jardine’s crew on the night of the incident.
He
confirmed Jardine’s evidence that they were conducting crime
prevention duties and corroborated Jardine’s evidence
in
relation to the incident. He denied that he or Jardine assaulted the
plaintiff or swore at her or the occupants of her vehicle.
The
plaintiff’s vehicle had been parked contraflow on Underwood
Road with the driver’s door slightly ajar. He initially
approached the driver’s side of the vehicle and the plaintiff,
who had alighted from the vehicle, was extremely abusive.
[46]
He also
confirmed that he did not know whether the driver of the vehicle at
the time of the incident was male or female. As he approached
the
vehicle, he observed two passengers and asked them to alight from the
vehicle as he was not certain whether or not they were
armed. The two
persons alighted and stood next to the vehicle. He spoke to the rear
seat passenger who appeared to be big in build.
At the same time
Inspector Jardine was attempting to talk to the driver of the vehicle
but she was screaming at him and being very
abusive towards him. He
spoke to the front passenger of the vehicle and asked him what the
problem was and to the best of his recollection,
the passenger
informed him that either they were coming from or going to a party
and that they had got lost.
[13]
[47]
Whilst this conversation was taking place, the plaintiff kept on
screaming ‘I’m a woman, I’m a woman’.
It was
then that he asked the passenger whether the plaintiff was a male or
female and the male passenger confirmed she was a female.
He
testified that both passengers, who remained outside the vehicle,
were extremely co-operative with him. When the passenger had
indicated that the plaintiff was a female, he decided to
“de-escalate” the situation and handed the keys to the
passenger
to move the vehicle to a safer location.
[48]
All the while, whilst having a conversation with the passenger, his
back was to the plaintiff and Jardine and he could not
see or hear an
assault. He testified that his contact with the plaintiff was minimal
and he further denied that either he or Jardine
assaulted the
plaintiff or abused her or her passengers in any way. He in fact
testified that it was the plaintiff who was being
abusive. He did not
notice any injuries to the plaintiff and spoke to the male passenger
whom he had been communicating with. He
focused on the two male
passengers to keep them under observation.
[49]
Neither he nor Jardine made a report regarding the incident nor did
they arrest the plaintiff for drunk driving as he wanted
to
de-escalate the situation. He testified that in such situations, it
is a matter of his discretion. He confirmed that the vehicle
was not
stolen as it was driven by a female and the keys were readily
available. This was also confirmed by the fact that the passengers
were extremely co-operative towards him. He testified that when the
plaintiff and her passengers were told to drive off, he did
not
notice any blood or injuries on her.
[50]
That then was the evidence of the defendant.
Submissions
of the parties
[51]
Adv.
Naidu
appearing for the plaintiff submitted that the
plaintiff had discharged the onus to prove her case on a balance of
probabilities.
The plaintiff in my view had somewhat of an easy task
in light of the fact that she closed her case and the defendant
called her
third witness, Mr Malinga, as its witness. It is as a
consequence of this that the defendant was now in a position where it
had
two diametrically opposed versions from its witnesses –
that of Mr Malinga and that of the two Metro Police officers,
Inspectors
Payne and Jardine.
[52]
Given this,
Adv.
Naidu
submitted it was appropriate to accept the evidence of the plaintiff
and her witness Velinkosi as corroborated by Sithembiso in
its
entirety. This was the basis to reject the evidence of the Metro
police officers coupled with the fact that the defendant’s
version was that of a bare denial and no version had been pleaded. It
was also for this reason that Adv.
Naidu
sought
an attorney and own client costs order. He referred to several
authorities on this issue
[14]
in support of his submission.
[53]
The
defendant’s plea was a bare denial and despite being forewarned
not only at the pre-trial stage but also on the first
day of trial,
and given an opportunity to amend its plea, Adv.
Naidu
submitted the defendant elected not to do so and then attempted to
amend its plea by leading evidence. He also alluded to the manner
in
which the defendant had conducted the trial over the three days of
hearing in support of his submission for an attorney and
client cost
order.
[54]
Adv.
Mfeka
,
for the defendant, submitted that the plaintiff deliberately chose
not to call its witness Mr Malinga. He testified that there
were
inconsistencies in the evidence of the plaintiff and Mr Mncwango and
that of Mr Malinga. Mr Malinga’s version, so the
submission
went, differed significantly from that of the plaintiff and did not
support the plaintiff. He further submitted that
the evidence of the
two Metro policemen supported the plea filed by the defendant. The
appropriate way of dealing with the evidence
was to reject the
evidence of the plaintiff, Mr Mncwango and the defendant’s
witness Mr Malinga and decide the matter solely
on the evidence of
the two Metro policemen. He submitted that the defendant persisted in
its denial of wrongfulness and that the
charges of assault were
withdrawn against Inspector Jardine and never reinstated.
[55]
In addition, he submitted that according to the J88, the
injuries suffered by the plaintiff were superficial injuries
and
consequently the evidence of the plaintiff was not consistent with
the J88 and the alleged injuries she sustained. Given the
contradictions between the plaintiff and Mncwango, it was submitted
that one must accept that the plaintiff’s version was
fabricated and that the defendant’s two witnesses, being the
Metro policemen must be preferred. It is for this reason that
he
submitted that the plaintiff’s version must be rejected in
toto
as same is improbable when compared to that of the defendant’s
two witnesses.
[56]
In his written submissions, Adv.
Naidu
submitted that the
plaintiff and her witness were honest witnesses and that it cannot be
argued that they have fabricated their
evidence. No adverse
inferences must be drawn against them regarding their credibility and
demeanour. In addition, he submitted
that the plaintiff provided a
plausible explanation for the difference in her statement as well as
the letter of demand and the
particulars. The evidence that the
second policeman also assaulted her was corroborated by the
defendant’s witness Mr Malinga.
[57]
A further factor which ought to be considered is that Mr Malinga
confirmed the two police officers had assaulted and abused
the
plaintiff and they were lying by denying such assault and abuse. The
defendant, who called Mr Malinga as its witness, did not
declare him
a hostile witness and therefore his evidence must be accepted as
being evidence for the defendant. The fact that his
evidence
corroborates that of the plaintiff and her witness Mncwango does not
mean that it must be disregarded and rejected in
toto
.
[58]
In his written submission Adv.
Mfeka
submitted that:
‘…
in light
of the material inconsistencies in the Plaintiff’s evidence,
the Plaintiff did not discharge her onus on the balance
of
probabilities. The Plaintiff’s attempts to explain such
inconsistencies are wholly inadequate. Based on the inherent
probabilities in the versions, it is submitted that the Plaintiff’s
version is wholly improbable as to warrant its rejection.’
[15]
[59]
Insofar as the punitive costs order sought, Adv.
Mfeka
in his
written submissions submitted that such award is only granted in
exceptional circumstances and is regarded as punitive.
He submitted
that the defendant was entitled to defend the action and did not do
so simply to frustrate the plaintiff and consequently,
it cannot be
argued that the defence was frivolous. For these reasons he submitted
that the court should grant costs on a party/party
scale.
Analysis
[60]
The biggest difficulty which the defendant faces, in my view, is the
evidence presented and the manner in which the defendant
chose to
present its case. The plea constituted a bare denial. The defendant
led the evidence of Mr Malinga and two Metro policemen.
But for
calling Mr Malinga to testify on its behalf, the court would have
been faced with two diametrically opposed versions of
the evening’s
events. The court would then have had to decide the matter on the
probabilities and the credibility of the
witnesses.
Alternatively
,
the court may have been in a dilemma and may have been forced to find
absolution at the end of the entire case, given the two
diametrically
opposed versions. The defendant, in its conduct of its case, made
matters simple for the plaintiff in that it led
the evidence of the
plaintiff’s witness Mr Malinga and did not declare him a
hostile witness. The crux of Mr Malinga’s
evidence corroborated
that of the plaintiff and Mr Mncwango. It was in contradistinction to
that of the two Metro policemen who
denied an assault or abuse of the
plaintiff.
[61]
I accept that there may be inconsistencies in the evidence of the
plaintiff and her witness when compared with that of Mr Malinga.
However, I am not convinced that these are material and that as a
consequence the plaintiff’s version must be rejected outright.
If one considers the case as a whole, the inconsistences in the main
related to the following:
[61.1] where the Metro
police vehicle was parked at the time of the arrival at the scene;
[61.2] whether Mr
Mncwango accompanied the plaintiff to the hospital after the alleged
incident;
[61.3] whether one or
both Metro policemen assaulted the plaintiff at the time of the
alleged incident.
[62]
This in my view does not mean that the evidence as a whole falls to
be rejected.
[63]
The defendant must bear the consequences of presenting its case. The
conclusion is inescapable. The plaintiff has discharged
the onus of
proving her case on a balance of probabilities. This has been
bolstered by the fact that the defendant chose to lead
the evidence
of a passenger in the plaintiff’s vehicle at the time of the
incident and a witness whom the plaintiff’s
legal
representatives chose not to call.
[64]
In his
written submissions, Adv.
Mfeka
he
submitted
[16]
that he
was not allowed to lead evidence on this document. If one considers
this document, it is not signed, it is not clear
when the statement
was taken down or who took the statement down. The witness was asked
to identify the document to which he responded
that he is not certain
where the document emanated from, who typed it but the contents
thereof were similar to a statement which
he had deposed to before
the investigating officer or a policeman.
[65]
During the course of the trial, Adv.
Mfeka
applied for an
adjournment to obtain the statement. Such adjournment was refused and
detailed reasons were provided which are a
matter of record. The
defendant took no steps to secure this document even though it had
the original docket and it was in possession
of the plaintiff’s
discovered documents for a considerable period of time. Whilst the
purpose of leading this evidence may
have been to show
inconsistencies between this witness’s evidence and that of the
plaintiff’s witnesses, this does
not affect the onus which the
plaintiff has to discharge.
[66]
In para 7.3 to 7.5 of the plaintiff’s particulars of claim she
seeks to hold the defendant liable as a consequence of
certain
reports made in the news and print media regarding the incident.
Having regard to the plaintiff’s evidence, she was
contacted by
members of the news and print media regarding the incident and
provided interviews to them. She voluntarily provided
interviews and
disclosed circumstances of the incident to them which was then
published. In my view, the defendant cannot be held
liable in respect
of this cause of action pleaded.
[67]
Insofar as the remaining cause of action is concerned, I must
accordingly find in favour of the plaintiff based on the evidence
presented. I do so not making any credibility findings in respect of
the defendant’s witnesses.
Costs
[68]
As already alluded to earlier, the plaintiff seeks a punitive costs
order and its detailed written submissions contain the
basis
therefore. I have considered the authorities referred to by Adv.
Naidu
and I am of the view that the facts of this matter do
not warrant a punitive costs order.
[69]
In any event, it is trite that the award of costs is a matter which
falls within the discretion of the court, which discretion
must be
judicially exercised. I am of the view that there is no reason to
depart from the usual rule in respect of costs however,
the award of
costs should be on a party/party scale.
[70]
In the premises the orders I issue are the following:
[70.1.] The defendant is
liable to compensate the plaintiff for one hundred per cent (100%) of
her proven or agreed damages.
[70.2] The
defendant is directed to pay the plaintiff’s costs of suit on
the High Court party/party scale in respect
of the issue of
liability.
[70.3] The
plaintiff and her witness Velinkosi Mncwango are declared necessary
witnesses.
[70.4] The trial is
adjourned sine die for the determination of quantum.
______________
HENRIQUES
J
Case
Information
Date
of trial
: 24, 25
& 26 August 2016
Date
of submission of
Plaintiff’s
written submissions
:
9
September 2016
Date
of submission of
Defendant’s
written submissions :
1 September
2016
Date
of judgment
: 11
October 2017
Appearances
Counsel
for Plaintiff
: Adv. K.
Naidu
Instructed
by
: Attorneys
Murugasens (D. Murugasens Inc)
Suite 15, Havenside
Shopping Centre
Kingsbury Walk
Havenside
Chatsworth
c/o Messenger King
8
th
Floor,
Esplanade Garage
Ref: Mr
Murugasen/NS/M7/14
Counsel
for Defendant
:
Adv.
NVS. Mfeka
Instructed
by
:
Berkowitz, Cohen Wartski Attorneys
17
th
Floor,
Southern Life House
88 Field Street
Durban
Ref: Errol
Sibiya/TCN/52E336424
[1]
Para
5 of the particulars of claim, exhibit “B”, pages 7 to
8.
[2]
Para
6, page 9 of exhibit “B”.
[3]
Exhibit
“E” are photographs depicting the area and the scene of
the alleged incident; Exhibit “C” is a
bundle of the
plaintiff’s discovered documents.
[4]
The
plaintiff testified using exhibit “E”. The painted
island can be clearly seen in photographs “E1”
to “E5”.
Her vehicle was stationary on the island with its hazard lights on
and was facing the robot-controlled intersection
at Caversham Road.
[5]
Exhibit “C”, pages C17 to C19.
[6]
Rule 39(6).
[7]
Gascoyne
v Paul and Hunter
1917
TPD 170
at 173;
R
v Shein
1925
AD 6
at 9.
[8]
Gafoor
v Unie Versekeringsadviseurs
(Edms) BPK
1961 (1) SA 335
(A) at 340D;
South
Coast Furnishers CC v Secprop 30 Investments (Pty) Ltd
2012 (3) SA 431
(KZP) at 439D-E.
[9]
Erasmus
Superior Court Practice
,
Service 41 B 1-293.
[10]
D E van Loggerenberg
Erasmus
Superior Court’ Practice
(2 ed) Vol 2 D1-493
‘
When a plan,
diagram, model or photograph is admitted or received in evidence
without proof in terms of this subrule, an admission
is created only
(i) as to the authenticity of the plan, etc, ie the need to call the
author of the plan, etc or to provide other
proof of its authorship
is dispensed with; and (ii) as to the physical features actually
found by the author.’
Shield
Insurance Co Limited v Hall
1976 (4) SA 431
(A) at 438 F-G.
[11]
I
may also add that this was the plaintiff’s witness who did not
testify during the course of the plaintiff’s case.
[12]
Exhibit “C”,
page
C20.
[13]
In
fairness to Inspector Payne, he testified that he had no clear
recollection of exactly what was reported to him by the passenger
in
the vehicle.
[14]
Madzunye
& another v Road Accident Fund
2007
(1) SA 165
(SCA);
Michael
& another v Linksfield Park Clinic (Pty) Ltd & another
2001 (3) SA 1188
(SCA);
Thoroughbred
Breeders’ Association v Price Waterhouse
2001 (4) SA 551 (SCA).
[15]
Paras 94 and 95 of defendant’s closing arguments.
[16]
Para
60.