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[2016] ZAECMHC 25
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Mdutyana v Minister of Police (524/2012) [2016] ZAECMHC 25 (26 May 2016)

IN THE HIGH
COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, MTHATHA)
CASE
NO.: 524/2012
In
the matter between:
ANDILE
MDUTYANA

Plaintiff
And
MINISTER
OF POLICE

Defendant
JUDGMENT
BESHE
J:
[1]
This is an action for damages against the Minister of Police for
damages suffered as a result of an assault that is alleged
to have
been perpetuated by defendant’s officials whilst acting within
the course and scope of their employment with the
defendant.
[2]
At the start of these proceedings I ordered a separation of issues in
terms of
Rule 33 (4)
of the Uniform Rules
of
this court with the issue of the merits / liability being dealt with
first and quantum to be determined later, should it be necessary
to
do so. So, the issue to be determined is whether the plaintiff was
assaulted by the officials of the defendant whilst acting
within the
course and scope of their employment with the defendant; whether, if
plaintiff was assaulted, such assault was unlawful
or not.
[3]
It became common cause between the parties that on the evening of 21
December 2011 and at near Sapukanduku, in the district
of Ntabankulu,
officials of the defendant met with the plaintiff who was driving a
Nissan van on the road between Ndakeni and Mt
Ayliff. Where the
parties diverge in this regard is on the reason why plaintiff brought
the vehicle he was driving to a halt and
what happened thereafter.
[4] Plaintiff’s version briefly stated is as
follows:
During
the day in question he had attended a circumcision party at a
relatives’ home. During the course of the celebrations
a
quarrel ensued between some boys and the newly initiated young man.
Plaintiff feared for his safety as well as that of the other
people
at the premises because stones were thrown at windows causing some of
the windows to break. As a result he summoned the
police. However
before the police could arrive, his cousin
Mr
Nkosiyozuko Mavaba
arrived at the homestead where plaintiff was, which is
Mavaba’s
home. He had been
assaulted by young men outside the premises. He was bleeding from an
injury on his head. Plaintiff rushed him
to hospital in a van that
had been parked in the premises (the Nissan). On the way to hospital,
he came across a police van which
was driving in the opposite
direction. In other words, towards Ndakeni locality from where they
were coming. He carried on driving,
he observed that the police van
had turned and was following theirs at a high speed. Because the road
was narrow, he pulled off
the road so as to give way to the police
van. Instead of the police van driving past it stopped. Police
alighted from the van and
approached the Nissan. One of them opened
the driver’s door and pulled him out of the vehicle and struck
him with fists.
He was made to lie on the ground and hit with plastic
sticks, kicked with booted feet and punched by officials of the
defendant
– the policemen who were driving in the police van.
One of the police who assaulted him was
Mr
Buqaqawuli Nyembezi
also known as
Sanda
Qaqawuli
who is
related to him. He later intervened on his behalf referring to him as
his older brother.
[5]
Plaintiff testified that as a result of the assault by the
defendant’s officials he lost three (3) teeth, fractured his

left arm, had swollen right arm, sustained injuries on his back and
waist.
[6]
Plaintiff denied that he was stopped by the police asserting that he
stopped on his own. He denied that police asked why he
drove
recklessly. He denied that he was injured during the commotion that
broke out at the ceremony he had attended earlier that
day. He denied
that he had told the police at the scene he was injured at the
ceremony. He denied having been provided with a J88
medical report by
the police at the scene to take to hospital.
[7]
Mr Mavaba
confirmed
what plaintiff said about arriving at his home where there was a
party bleeding from an injury on his head. He testified
that he was
assaulted by some young men outside his home. He confirmed that
plaintiff bundled him into a van and drove him to hospital.
He
confirmed that they came across a police van driving in the opposite
direction. After a short while he observed that the police
van had
turned around and was now following theirs. Plaintiff pulled off the
road to give way to the police van. Instead of driving
past the
police van stopped close to theirs, a number of police men alighted
from their van and proceeded to the vehicle plaintiff
was driving.
The opened the driver’s door as well as his door. When the
police saw that he was bleeding, those on his side
let go of him and
all converged on plaintiff’s side. They started assaulting the
plaintiff who was protesting asking why
he was being assaulted. One
of the officers was
Qaqawuli
who intervened on behalf of plaintiff saying plaintiff was a member
of his family.
Qaqawuli
also made the point that he (
Mavaba
)
needed to be rushed to hospital. The police van followed them to the
hospital.
Mavaba
testified that the police assaulted plaintiff by striking him with
batons and kicked him with booted feet. Plaintiff also received

medical attention at the hospital to which they were driving when the
incident occurred.
[8]
Mr Mavaba
denied that plaintiff drove recklessly or that the police signalled
to him to stop the vehicle. He denied that plaintiff had any
injuries
when they were confronted by the police.
Mr
Mavaba’s
evidence concluded the plaintiff’s case.
[9]
Mr Buqaqawuli
Nyembezi
, an
official of the defendant testified on behalf of the defendant. He
testified that he was at work with his colleagues who were
performing
their duties as a van crew. They received a report via the police
radio that certain people were being attacked at Ndakeni
locality in
Mt Ayliff. He advised his colleagues that, being from that area, he
was familiar with it as well as the dynamics of
the battles that that
often take place in that area. They drove to the area in a double cab
van. On the way to the homestead in
respect of which the report was
received, he observed a Nissan van approaching from the opposite
direction at a high speed. He
recognised it as belonging to the
homestead where it was reported there was trouble. The police van had
to veer to the side of
the road to avoid colliding with this Nissan
van. He suspected that the occupants of the van could be the
attackers in respect
of the incident they were attending. He
suggested to his driver that they should try and stop the Nissan van.
Indeed with their
blue light on, siren blurring, they turned around
and tried to stop the Nissan van. This was at about 20h00. They
chased the Nissan
van for approximately 3km before they managed to
stop it, having overtaken it and by stopping in front of it.
Nyembezi
and his colleagues
alighted from their motor vehicle and proceeded to the Nissan van.
Light from the Nissan van provided elumination
at the scene. They
surrounded the van. He approached the passenger side of the vehicle.
He asked
Mr Mavaba
to open the door - who at first refused to open the door. He observed
that he was bleeding.
Mavaba
reported that they were assaulted next to his home. He also spoke to
plaintiff who made a similar report – that they including
him
were assaulted in the locality where a ceremony was held.
Nyembezi
confirmed that plaintiff was taken out of the Nissan van protesting
that they were in a hurry having been assaulted and he was
bleeding
from his mouth. After being made to alight from the Nissan van,
plaintiff was searched. However nothing was found in his
possession.
He then suggested that they let plaintiff and
Mavaba
proceed to hospital and go after the young men who assaulted them. He
denied that he and his colleagues assaulted the plaintiff
with
plastic sticks or in any way. He admitted that he told his colleagues
that plaintiff was his brother. But he denied he intervened
on his
behalf when he was being assaulted.
[10]
During cross-examination
Nyembezi
admitted that plaintiff laid charges of assault against him and his
crew. He could not dispute that plaintiff did not lay any charges

against three men he (
Nyembezi
)
alleged
Mavaba
implicated in their assault. He also admitted that plaintiff was on
the ground when he was being searched by his colleagues kneeling,

according to him. Although it was put to plaintiff that after
stopping him the police asked him why he was driving recklessly,
this
did not transpire from
Nyembezi’s
evidence.
[11]
Plaintiff told court that as a result of the assault by defendant’s
officials, he sustained the following injuries: lost
three teeth,
fractured his arm and sustained injuries to his back and waist. That
the plaintiff sustained these injuries was not
placed in issue. The
only divergence in the versions proffered by the parties was as
regards the author of those injuries.
[12]
In his particulars of claim which have been amended several times,
plaintiff alleges that defendant’s officials “dragged
him
out of the bakkie pointing him with firearms and ordered him to lie
down. They assaulted him by kicking him with booted and
punching him
with fists for no apparent reason”. However during his
testimony there was no mention of being pointed with
firearms.
Instead plaintiff and
Mr
Mavaba
stated that
plaintiff was also struck with plastic sticks / batons.
[13]
It is clear from the aforegoing summary of the evidence that I am
confronted with two irreconcilable versions regarding whether
or not
the defendant’s officials assaulted the plaintiff.
[14]
It is trite that the standard of proof that is applicable in civil
cases is proof on a balance of probabilities. In other words
the
party on whom the onus rests is required to prove its case on a
balance of probability.
[1]
In
casu
the onus rests on the plaintiff.
[15]
The technique to be applied in resolving factual disputes where a
court is faced with two irreconcilable versions was suggested
by
Nienaber JA
in
SFW GroupLtd
and Another v Martell Et Cie and Others
[2]
to
be the following:
“
[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 witness 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'
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' 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.”
[16]
The following facts appear to be common cause or not placed in
dispute by the defendant. Police officials amongst whom was

defendant’s witness
Nyembezi
were acting within the course and scope of their employment with the
defendant during the evening in question. At some point they
chased
plaintiff’s vehicle. Plaintiff’s vehicle stopped –
according to plaintiff to give way to the police van
–
according to the police officials he was forcefully stopped (See
paragraph 2 of defendant’s plea). This is also according
to
Nyembezi
.
It is also common cause that plaintiff was caused to alight from the
Nissan van. That he ended up being on the ground. Kneeling
according
to
Nyembezi
,
lying down according to
Mavaba
.
His passenger
Mavaba
who was bleeding from an injury on his head remained in the Nissan.
Defendant’s officials had however also opened his door
but did
not cause him to alight. It also appears to be common cause that
plaintiff sustained injuries on the day in question.
[17]
According to both plaintiff and
Mavaba
he was not injured
before they met the police. Both testified that it is the police who
assaulted him. Plaintiff testified that
he fractured an arm, lost
some teeth and was injured on his back and waist.
Nyembezi
confirms that he required medical attention and asserts that he
provided him with a J88 medical form although plaintiff and his

witness deny that he provided them with J88 forms.
Nyembezi
stated that
although he could not tell from where blood was coming from –
plaintiff was bleeding. It is common cause that
plaintiff laid a
charge of assault against the police in connection with this
incident.
[18]
Defendant’s case is that the plaintiff was not assaulted by the
defendant’s officials but by young men in the locality
where a
ceremony was held. This was however not raised in defendant’s
plea initially. It was only later in its plea to plaintiff’s

amended particulars of claim that defendant raised this defence. In
response to an allegation that one of the police officials
who
accosted the plaintiff was
Sanda
Qhaqhawuli
(
Nyembezi
)
who was the one who suggested that his colleagues should stop
assaulting the plaintiff; defendant pleaded that this is denied
as
there was no need for
Qhaqhawuli
to stop anyone as
plaintiff was never assaulted on the day in question by defendant’s
members save being assaulted in a ceremony
in his locality. It is not
clear to me why if defendant’s officials became aware of the
assault on plaintiff by local people
they did not raise this defence
in their plea initially. I am inclined to agree with
Mr
Mantyi
for the
plaintiff that this was an afterthought on the part of defendant (his
officials). If, as
Nyembezi
suggests plaintiff was injured when they stopped his vehicle, why was
he caused to kneel on the ground (although according to plaintiff
and
his witness he was lying on the ground when he was assaulted) whereas
his passenger who was also bleeding was not caused to
alight so that
he could be searched.
[19]
Nyembezi
denies he intervened on behalf of the plaintiff but admits that he
did tell his colleagues that they were related. According to
him this
was said in the context that his colleagues should let them proceed
to hospital because they were injured. Why did he
not make that
suggestion earlier on – upon seeing that both occupants of the
Nissan van were injured? If what
Nyembezi
says
is true, why
did
Mavaba
who
was also injured not accuse the police of assaulting him? It was
common cause or at least not in dispute that he laid a charge
against
young men from his locality.
[20]
Plaintiff’s evidence does seem to have been embellished or the
assault on the plaintiff exaggerated. In plaintiff’s

particulars of claim, no mention was made of an assault with plastic
sticks / batons. It was only in their evidence that plaintiff
and
Mavaba
mentioned the use of plastic sticks. Plaintiff could not explain why
there was no mention of plastic sticks in his particulars
of claim.
[21] After evaluating all the evidence and assessing the
probabilities, I am of the view that the following is the most
probable
version:
Defendant’s
officials observed plaintiff’s motor vehicle and concluded or
realised it was being driven recklessly. Felt
that the driver of the
motor vehicle nearly collided with their motor vehicle thereby
endangering their lives / bodily integrity.
Turned around and chased
it. Plaintiff’s motor vehicle having stopped (be it to give way
to the police or motor vehicle or
having been forced to stop)
defendant’s officials approached plaintiff’s van. Opened
his door, manhandled him causing
him to fall to the ground asking why
he was driving recklessly. Others were shouting, as both witnesses
who testified in support
of plaintiff’s case indicated “kill
this dog”. Probably feeling aggrieved by the plaintiff’s
“reckless”
driving. Defendant’s officials proceeded
to assault the plaintiff. The version proffered by the plaintiff is
the more probable
of the two divergent versions. I am satisfied that
plaintiff has discharged the onus of proving on a balance of
probabilities that
defendant’s officials assaulted them. There
was no lawful excuse or justification for defendant’s officials
to assault
the plaintiff. The assault was wrongful and unlawful.
[22] In the result there shall be judgment in favour
of the plaintiff.
The defendant is liable to the plaintiff for such
damages that he is able to prove, arising from the assault on him by
the officials
of the defendant on the 21 December 2011.
The
defendant is ordered to pay costs of suit.
_______________
N G BESHE
JUDGE OF THE HIGH COURT
APPEARANCES
For the Plaintiff

:
Mr M Mantyi
Instructed by

:
MANTYI ATTORNEYS
1
st
Floor, Clublink Bld
28 Madeira Street
MTHATHA
Tel.: 047 – 531 1364 / 082 558
2904
Ref.: Mr Mantyi Mantyi@polka.co.za
For the Defendants

:
Mr T Qina
Instructed by

:
MESSRS T QINA & SONS
28 Madeira Street
MTHATHA
Tel.: 083 769 4011
Ref.: Mr Qina
Date Heard

:
31 August 2015 and 1 September 2015
Date Reserved

:
1 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]
2003 (1) SA 11
at 14 [5].