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[2016] ZAECMHC 24
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Malashe v Minister of Safety and Security (78/2013) [2016] ZAECMHC 24 (26 May 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, MTHATHA)
CASE
NO.: 78/2013
In
the matter between:
MALUSI
MALASHE
Plaintiff
And
MINISTER
OF SAFETY & SECURITY
Defendant
JUDGMENT
BESHE
J:
[1]
In this matter the plaintiff instituted an action against the
defendant for what plaintiff alleges was an unlawful assault on
him
that was perpetuated by defendant’s officials.
[2]
It is common cause that plaintiff was arrested by members of the
South African Police Services during the evening of the 22
July 2012
on a charge of possession of an unlicensed firearm.
[3]
Plaintiff alleges that it was during the course of the questioning
regarding the whereabouts of the firearm at his house and
subsequent
arrest that he was assaulted by officials of the defendant.
[4]
Plaintiff whose reputed age was sixty two (62) years at the time of
the incident was asleep at his home at Nqabara Administrative
Area,
Dutywa during the night in question. He testified that at about 24h00
he felt a sound as the door of the room in which he
was sleeping was
being forced open. At the same time people who identified themselves
as the police were demanding that he should
open the door. He
observed that someone had entered his room carrying a torch and a
firearm. At the time he (plaintiff) was only
dressed in his
underpants. The light was off in his room. The police were shining a
torch on his face. He was questioned about
the whereabouts of a .38
firearm. When he denied knowledge of firearm he was struck with an
object / stick on his forehead. Soon
he realised there were several
people inside his room, he was thrown on top of his bed with others
swearing at him. His underpants
were lowered. One of the intruders
switched the light on. He was thereafter kicked, punched and hit with
electricity cables. The
assault took approximately twenty (20)
minutes. After the light was switched on he observed that there were
many people inside
his room with only one of them dressed in police
uniform. None produced a search warrant. With his hands tied to the
back, he was
once again thrown on top of his bed and questioned about
the whereabouts of the .38 firearm. He produced a firearm which was
in
his headboard which he had picked up the previous day and intended
handing over to the police the following day. Plaintiff stated
that
this was however not the firearm they were looking for. He was them
taken out of his room with his hands still tied. Once
outside he
observed that there were many other police officials as well as a man
from the locality who was also naked and had his
hands tied to his
back.
[5]
This man was one
Nogwayiti
Sijili
. His
(plaintiff) son was also outside so was his wife and daughter.
Together with
Sijili
,
they were loaded into a Combi that was parked nearby. As they were
proceeding to the Combi they were assaulted by the police.
Inside the
Combi he was made to lie on top of the engine behind the driver’s
seat which had protruding hinges which ate into
his back. As a result
of the assault he sustained injuries on his chest both on the front
and back as well as on his arms.
[6]
Mr Malashe
testified that he laid a charge of assault against the police as a
result of the assault. As a result of which he was provided
with a
medico legal examination report form – J88 for the doctor to
complete. He testified that he was examined by
Doctor
Potelwa
who
completed the J88 referred to above.
[7] From this medico-legal examination report that was
compiled by
Doctor R. K. M. Potelwa
the following emerge:
Plaintiff was seen at 14:36 on the 23 July 2012.
Clinical findings made;
Bruises and abrasions anterior chest wall, the back of
chest and both fore-arms.
The
injuries are also noted or marked on sketches that represent the
human body and form part of the report. These show marks captioned
bruised and abrasions on diverse parts of the back and front of the
chest and on the wrists.
[8]
Plaintiff further stated that he did not provoke the police and that
they had no right to assault him. He contended that his
life will
never be the same after the assault in question. To this end he is
claiming compensation for pain and suffering in the
sum of
R200 000.00 and R50 000.00 for shock and embarrassment. He
testified that he was handed clothes to wear after
they had been
driving around with the police who searched four homesteads that
evening.
[9]
During cross-examination it was put to him that the police did not
have any reason to assault him because he readily pointed
out a
firearm. He was however adamant that they assaulted him because they
were looking for a different firearm to the one he pointed
out.
[10]
Malashe’s
evidence as to what
happened that morning was to a large extent corroborated by
Sijili
.
Sijili
who is also from one of localities in Nqabara testified that whilst
asleep at his house he heard what sounded like someone was
fiddling
around with the chain used to lock his gate. He thereafter heard a
knock on his door followed by the forceful opening
of his door.
Police got in and assaulted him. Thereafter they took him to
plaintiff’s place asserting that they were going
to get a
certain firearm the type of which they identified. At that stage he
was naked with his hands tied to his back. Once at
plaintiff’s
homestead, he was instructed to alight from the vehicle in which he
was travelling. He did, and observed the
police kicking plaintiff’s
door open. Some of the police officials entered plaintiff’s
room. Thereafter he heard screams
emanating from plaintiff’s
room. After a long time, plaintiff emerged from the room naked with
hands tied to his back. As
he was walking out of his room, one
policeman proceeded to hit him on his back with a stick. A lot of
people had gathered outside
plaintiff’s place by then. It was
cold it being in early hours of a winter morning. Police also used a
rubber object to hit
plaintiff as they were escorting plaintiff to a
police vehicle. He noticed that like him, plaintiff had weals on his
back which
he did once they were both inside the police Combi. He
also confirmed that plaintiff was caused to lie on top of the
engine.
[11]
Asked why he did not mention assault on the plaintiff when he
submitted a statement to the police, he indicated that it was
because
the case in respect of which he was submitting the statement
concerned the assault on him. He testified that he did not
observe
any swelling on plaintiff’s face / forehead.
[12]
Mr Bekuxolo Malashe
who is plaintiff’s son was next to testify in support of
plaintiff’s case.
[13]
According to
Malashe
Junior
he was
awoken to find police inside his room some pointing firearms at him.
His hands were tied to his back, demands for him to
produce a firearm
were made by the police. Later he was taken out of his room only
dressed in a pair of pants police instructed
him to wear. The police
found these pants inside his room. Outside he observed
Sijili
who was naked and sporting injuries on his body. He saw his father
(plaintiff) coming out of his room with police, naked. He observed
that one of the police officials was carrying a stick that belonged
to him which he used to hit his father from behind. Both plaintiff
and
Sijili
were taken away by the police still naked. The evidence of
Malashe
Junior
concluded
plaintiff’s case.
[14]
Captain Sthembele Matshoba
was the first
witness to testify on behalf of the defendant.
Matshoba
testified that on 23 July 2012 during the course of the investigating
a charge that was laid against the police by plaintiff together
with
other complainants, plaintiff handed him a J88. Plaintiff alleged
that he had been assaulted the previous day but did not
know the
names of his assailants. Whilst interviewing the plaintiff he did not
observe any injuries on him. Upon further investigating
he
established that a warrant officer had signed plaintiff’s
detention warrant when he was locked up in connection with unlawful
possession of a firearm. Registers kept at the police station also
recorded that plaintiff was detained without any injuries.
[15]
During cross-examination
Matshoba
stated that he could not dispute that plaintiff had injuries on his
body but he did not observe any. He also admitted that he did
not
remove plaintiff’s clothes to examine him for injuries. He
could not tell whether the person who made an entry that plaintiff
was detained without injuries removed plaintiff’s clothes to
check for injuries.
[16]
Next to testify was
Warrant
Officer Mamazana
.
He testified that as a result of information received he together
with his colleagues proceeded to the home of the plaintiff which
was
pointed out by an informant. He together with two of his colleagues
stood at plaintiff’s door, identified themselves
as police and
asked him to open the door and switch the light on. Although the door
was ultimately opened, the person who opened
the door did not switch
the light on. A torch was shone at the person who opened the door, he
was instructed to raise his hands.
After the light was switched on he
saw that the person inside the room was the plaintiff and that he was
naked. Because his crew
included a female officer he insisted that
the plaintiff should get dressed. Plaintiff put his pants on.
Mamazana
proceeded to introduce himself to plaintiff and to explain the
purpose of their visit at plaintiff’s house. Requested
permission
to search which was granted by the plaintiff. Just as he
was starting to search the room, plaintiff said he should not bother
searching
and told him the firearm was underneath the bed. The
firearm was retrieved from underneath the bed. He asked whether
plaintiff
had a licence for the firearm. He could not produce one
explaining that he picked the firearm in the forest. He informed
plaintiff
he was under arrest for possession of an unlicensed
firearm. Plaintiff pleaded with him not to arrest him saying he
intended taking
the firearm to the police. As this exchange was
taking place,
Mamazana
told plaintiff to get dressed and come with them. Plaintiff’s
son joined them from another room.
Mamazana
informed him that he was arresting plaintiff for possession of an
unlicensed firearm. Plaintiff was then taken to Dutywa where
he was
detained. He denied plaintiff was assaulted in his presence. He
admitted that plaintiff was handcuffed but denied he was
handcuffed
tightly saying there would have been no need for that because
plaintiff co-operated.
[17]
During cross-examination it emerged that
Mamazana
was accompanied by five to six officials. He admitted shining a torch
in plaintiff’s face but denied forcefully opening plaintiff’s
door. Denied seeing
Sijili
at the scene during that morning when plaintiff was arrested.
Warrant
Officer Mamazana’s
evidence concluded defendant’s case.
[18]
It is trite that the standard of proof that is applicable in civil
cases is that of proof on a balance of probabilities. This
entails
that the party on whom the onus rests is required to prove its case
on a balance of probabilities.
[1]
See also
National
Employers’ General Insurance v Jagers
.
[2]
[19] It is common cause as would appear from the
summation of the evidence that plaintiff was arrested at his house by
officials
of the defendant in the early hours of the 23 July 2012. He
was charged with possession of an unlicensed firearm that was
recovered
from his house and detained at Dutywa police cells.
Plaintiff alleges that he was assaulted by members of the defendant’s
department during the course of the search and after the recovery of
the firearm in question. Defendant denies that plaintiff was
assaulted.
[20]
In my endeavour to determine whether the plaintiff has succeeded in
discharging the onus that rests on him, I find the dictum
in
National
Employers’ General Insurance v Jagers
supra
[3]
very
instructive. It will be appropriate therefore to refer to this dictum
copiously. This is what
Eksteen
AJP
had to say:
“
It
seems to me, with respect, that in any civil case, as in any criminal
case, the
onus
can ordinarily only be discharged by adducing credible evidence to
support the case of the party on whom the
onus
rests. In a civil case the
onus
is obviously not as heavy as it is in a criminal case, but
nevertheless where the
onus
rests on the plaintiff as in the present case, and where there are
two mutually destructive stories, he can only succeed if he
satisfies
the Court on a preponderance of probabilities that his version is
true and accurate and therefore acceptable, and that
the other
version advanced by the defendant is therefore false or mistaken and
falls to be rejected. In deciding whether that evidence
is true or
not the Court will weigh up and test the plaintiff’s
allegations against the general probabilities. The estimate
of the
credibility of a witness will therefore be inextricably bound up with
a consideration of the probabilities of the case and,
if the balance
of probabilities favours the plaintiff, then the Court will accept
his version as being probably true. If however
the probabilities are
evenly balanced in the sense that they do not favour the plaintiff’s
case any more than they do the
defendant’s, the plaintiff can
only succeed if the Court nevertheless believes him and is satisfied
that his evidence is
true and that the defendant’s version is
false.”
[21]
Not much criticism was levelled at the manner in which plaintiff and
his witnesses gave evidence or at their evidence. In my
view not much
criticism could be levelled at any of witnesses who testified in
support of plaintiff’s case. Barring a few
discrepancies here
and there all three witnesses gave evidence in a straight forward
manner. Gave a coherent account of what happened
that morning. All
three witnesses corroborated each other.
[22]
One of the aspects of plaintiff’s evidence that was justifiably
questioned or assailed by
Mr
Notyesi
for the
defendant was as regards his assertion that he was struck on his face
with a stick. As a result of which he sustained a
lump or his face
was swollen. However none of the witnesses, plaintiff’s and
defendants’, observed the injury. Not
plaintiff’s son,
not
Sijili
,
Doctor Potelwa
made no reference to it. Be that as it may –
Doctor
Potelwa
observed
other injuries that are in keeping with the manner in which plaintiff
testified he was assaulted.
[23]
Sijili
was also criticized for testifying about an assault that allegedly
took place inside the house and yet in his evidence he was not
inside
plaintiff’s house during the assault.
[24]
Sijili
explained why he said plaintiff was assaulted inside his house. He
explained that he heard sounds of blows and heard plaintiff
screaming.
[25]
On a preponderance of probabilities I am satisfied that the version
presented by the plaintiff and supported or corroborated
by his
witnesses is credible.
[26]
Mr Vuthela
categorised defendant’s
defence as a bare denial. I am inclined to agree with him in this
regard. Especially in light of
the following:
Upon
his release from detention plaintiff was examined by
Doctor
Potelwa
who
observed injuries that are consistent with the assault described by
the plaintiff. It is noteworthy that
Warrant
Officer Mamazana
did not say that the plaintiff was not assaulted by members of the
defendant but rather – he was not assaulted in his presence.
In
my view, in light of the credible evidence presented by the
plaintiff, defendant’s bare denial falls to be rejected as
untrue.
[27]
In my view, probabilities favour plaintiff’s case and he must
succeed. Evidence shows that plaintiff was wrongfully and
unlawfully
assaulted by defendant’s officials. He is therefore liable for
damages consequent upon the assault on the plaintiff
by his members.
[28] Plaintiff’s claim for compensation for
damages suffered as a result of the assault by defendant’s
officials is
the following:
General damages for pain and
suffering
R200 000.00.
Shock,
humiliation, embarrassment and contumelia
R50 000.00.
[29]
As stated earlier in this judgment, as a result of the assault, as
would appear also from the J88, plaintiff sustained bruises
and
abrasions on both front and back of his chest as well as on his
wrists. A large part of his chest is covered in bruises and
abrasions. He testified that he was struck with a stick, a big cable,
fists and open hands. He was also made to lie on top of hinges
protruding from the engine of the Combi that transported him to
Dutywa police station. For most part he was naked when the police
drove around with him in the locality. At the time plaintiff was
sixty two (62) years old. It is clear from the above that the
assault
was a sustained one. There can be no doubt that plaintiff endured a
lot of pain and suffering during the course and as
a result of the
assault.
Sijili
drew the court’s attention to the fact that it was cold it
being in winter. He was naked so was the plaintiff. I have no
doubt
therefore that the incident was a traumatic one for the plaintiff. It
must have been no doubt shocking. Given that it was
in the middle of
the night. His door was forced open and he was attacked in his naked
state in the presence of female officer/s
and with all the officers
having, in all probability being younger than him. He was then
paraded naked to the police Combi in full
view of
Sijili
,
his son, wife, daughter and people who by then had gathered outside
plaintiff’s premises. There can be no doubt that plaintiff
was
humiliated and embarrassed and suffered indignity. That his right to
dignity, respect, privacy and to bodily integrity was
treated with
disregard or were disregarded.
[30]
Do the amounts claimed by the plaintiff amount to fair and reasonable
awards in the circumstances of this case? In attempting
to determine
whether they are, I will be mindful of what was said by
Watermeyer
JA
in
Sandler
v Wholesale Coal Suppliers
[4]
about
the assessment of reasonable awards. Namely that:
“
In
considering that question it must be recognised that though the law
attempts to repair the wrong done to a sufferer who has received
personal injuries in an accident by compensating him in money, yet
there are no scales by which pain and suffering can be measured,
and
there is no relationship between pain and money which makes it
possible express the one in terms of the other with any approach
to
certainty. The amount to be awarded as compensation can only be
determined by the broadest general consideration and the figure
arrived at must necessarily be uncertain, depending upon the judge’s
view of what is fair in all the circumstances of the
case.”
Although
in
Sandler
the
court was concerned with a collision, I am of the view that these
words ring true of the damages suffered in circumstances of
this
case.
[31]
In his testimony plaintiff confirmed that his claim was for a total
of R250 000.00 but said because his life would never
be the same
after the incident R800 000.00 would have been a fair
compensation. Having considered all the circumstances of
this case, I
am of the view that an amount of R120 000.00 for general damages
for pain and suffering and R50 000.00 for
shock, humiliation and
contumelia would be appropriate, fair and reasonable awards.
[32] Accordingly judgment is granted in favour of the
plaintiff against the defendant for payment of:
(a) General damages for pain and
suffering
R120 000.00.
(b) Shock, humiliation and
contumelia
R50 000.00.
(c) Interest on the amounts mentioned in (a) and (b)
supra
at the legal rate from date fourteen (14) days after
judgment to date of payment.
(d)
Costs of suit.
_______________
N G BESHE
JUDGE
OF THE HIGH COURT
APPEARANCES
For the Plaintiff
:
Mr SC Vutula
Instructed by
:
SC VUTULA & CO.
Nobakhe House
17 Madeira Street
MTHATHA
Tel.: 047 – 532 3084
Ref.: SCV/mk/M143/12
For the Defendants
:
Mr M Notyesi
Instructed by
:
MESSRS MVUZO NOTYESI INC.
2
nd
Floor, T H Madala Chambers
14 Durham Street
MTHATHA
Tel.: 047 – 531 4714
Ref.: MN/018/14-MR LUZIPHO
Date Heard
:
21 May 2015, 1 September 2015 and 2 September
2015
Date Reserved
:
2 September 2015
Date
Delivered
:
26 May 2016
[1]
See Miller v Minister of Pensions
1947 (2). All
ER 372
at 374 – adopted by our appeal court in Ocean Accident
and Guarantee Corporation Ltd v Kock
1963 (4) SA 147
(A). In Miller
v Minister of Pensions the following was said as regards standard of
proof in civil cases. “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”.
[2]
1984 (4) 437 at 440 D – E.
[3]
Page 440 D – G.
[4]
1941 AD 194
at 199.