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[2016] ZAECELLC 1
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Fisa v Minister of Police (1263/2012) [2016] ZAECELLC 1 (26 April 2016)
IN THE HIGH COURT OF
SOUTH AFRICA
EASTERN
CAPE DIVISION – EAST LONDON
Case
no: 1263/2012
Case
Heard: 26/02/16
Date
Delivered: 26/04/16
In
the matter between:
ROBERT
MZIKAYISE FISA
PLAINTIFF
and
THE
MINISTER OF POLICE
DEFENDANT
JUDGMENT
SMITH
J:
Introduction
[1]
The
plaintiff claims damages from the Minister of Police (“the
defendant”) arising from his alleged unlawful arrest,
detention
and assault by police officers acting within the course and scope of
their employment.
[2]
He
alleged in his particulars of claim that he was arrested without a
warrant by police officers at 10h30 on 5 January 2012 at his
place of
employment, and subsequently detained at the Southernwood and Duncan
Village Police Stations until approximately 16h00
that same day. He
also averred that he was assaulted and tortured by the same police
officers before his release. He claims the
sum of R150 000 in
respect of his unlawful arrested and detention; general damages in
the sum of R600 000 arising from
his assault and torture; a sum
of R31 437 for future medical expenses; a sum of R34 569
for past loss of earnings; and
the sum of R133 664 in respect of
future loss of earnings.
[3]
In
his plea the defendant denied that the plaintiff was arrested, and
averred that he was merely requested to accompany the police
officers
to a police station for questioning after dagga was discovered at
premises under his control. The plaintiff voluntarily
accompanied the
police officers to the Fleet Street Police Station where he was
questioned and released after a short period. The
purpose of the
questioning was to establish whether he could have been a potential
state witness. The defendant also denied the
allegations in respect
of the alleged assaults.
[4]
Mr
Clarke appeared on behalf of the plaintiff and Mr Dukada on behalf of
the defendant.
The
evidence on behalf of the plaintiff
[5]
At
the time of the incident, namely 5 January 2012, the plaintiff was
employed as a barber at the Uhuru Hair Salon, at Gilwell Taxi
Rank,
East London. The salon was operated from a container.
[6]
Between
10h00 and 11h00 on that day he was outside the container attempting
to attract customers when he was approached by four
police officers.
He was subsequently able to identify two of them, namely Constables
Asanda Nyameka and Professor Mgunuza. He was
searched by Nyameka, and
Mgunuza pretended to slap him. A foreign national by the name of
Wacky Kasembe and two other Tanzanian
nationals were also in the
container at the time. The police officers searched the container but
did not find any contraband.
[7]
The
police officers then ordered him to accompany them to their vehicle,
being a Toyota Quantum, and drove off with him to Malcomes
Park,
Southernwood, where they parked in a corner of the parking lot close
to their offices. He denied that he accompanied the
police officers
voluntarily, but stated that he did so out of fear because they were
aggressive.
[8]
Nyameka
and one of the other unknown policemen went into the offices while
Mgunuza and the other one remained with him. At some
stage Mgunuza
also got out of the vehicle, leaving him alone inside the vehicle
with the other police officer. That police officer
then suffocated
him with a glove and plastic packet while interrogating him about
dagga.
[9]
After
Nyameka and the other police officer had returned, they drove off to
the Wesbank prison where they collected food parcels
and thereafter
proceeded to a shop in Settlers Way where they purchased soft drinks.
They were then also accompanied by an unknown
young man who had
joined them at the Southernwood offices. While they were waiting
outside the shop one of the police officers
got out of the vehicle,
picked up a plastic strip from the ground, and used it to bind his
hands behind his back.
[10]
They
thereafter took him to the Duncan Village police station. There he
was taken into a room, made to stand on a chair which had
been placed
on a table, and after his arms were placed behind him and over a
wooden beam, his wrists were fastened to burglar bars
with a piece of
wire. They then removed the chair, thereby leaving him suspended from
the beam which passed between his arms and
torso. His body was
stabilised by the wire.
[11]
He
was left in that position for a few hours while he was being
questioned about dagga and mocked by the police officers. They
eventually untied him from the beam and instructed him not to tell
anybody about what had happened to him. They returned him to
the taxi
rank at approximately 16h00.
[12]
Upon
his return to the taxi rank he related the events to Andile Mpongoshe
and Kasembe, and also showed them his injuries. He borrowed
money
from Kasembe for a taxi to his home. Later that same night he went to
the Frere Hospital where he was examined and treated
by Dr Sifuba.
The following day he went to consult a private doctor, namely Dr
Yapi, and thereafter proceeded to the Duncan Village
police station
where he laid a criminal charge of assault against the police.
[13]
The
plaintiff thereafter also led the evidence of Andile Mpongoshe and
Kasembe. They both corroborated his version in all material
respects,
and Kasembe, in particular, confirmed that the plaintiff was removed
from the rank by four police officers, that one
of them pretended to
slap him, and that he only returned to the rank at about 16h00, when
he told them that he had been assaulted
by the police and also showed
them his injuries. He also confirmed that he had lent the plaintiff
taxi fare to his home.
[14]
In
addition to corroborating the plaintiff’s version, Mpongoshe
also testified that he was summoned to Nyameka’s office
where
the latter offered to withdraw a criminal case against him if he
agreed not to testify on behalf of the plaintiff. Nyameka
also gave
him an affidavit to sign.
[15]
The
plaintiff also called the evidence of Dr Perumal, a forensic
pathologist. Dr Perumal examined the plaintiff on 24 June 2014.
He
thereafter prepared his report based on the examination as well as
the contents of the J88 which had been completed by Dr Sifuba.
He
also had regard to photographs of the plaintiff’s injuries. He
concluded as follows:
(a)
in
his opinion the haematomas on the back of the plaintiff’s head
were in all likelihood caused by the plaintiff banging his
head
whilst being suspended in the manner described by him;
(b)
the
multiple bruises on his arms are consistent with the plaintiff’s
claims that he had been tied with a rope or wire
while being
suspended; and
(c)
the
plaintiff had in all probability been assaulted in the manner claimed
by him, and his findings were consistent with those claims.
In his
opinion the assaults were deliberately perpetrated in such a manner
so as to leave no visible injuries.
[16]
Dr
Sifuba was also called to testify regarding her examination of the
plaintiff at 21h50 on 5 January 2012. She said that the plaintiff
had
complained of a headache and pains in his arms, and she also observed
bruises and swelling on his arms and haematomas on the
back of his
head. She recorded those injuries on the J88 form.
[17]
The
clinical psychologist, Mr Meyer, thereafter testified and confirmed
that the plaintiff will require 15 sessions of relationship,
family
and sexual counselling at the rate of R920 per session. His prognosis
is regarded as being poor.
[18]
The
parties also filed a joint minute compiled by their respective
industrial psychologists, Dr Van Daalen and Mr Venter. In that
minute
they agreed that prior to the events of 5 January 2012 the plaintiff
would have earned between R2 000 and R3 000 per
month, and that
his earning capacity had thereafter been reduced by 25%.
[19]
In
another joint minute prepared by the parties’ respective
clinical psychologists, namely Mr Meyer and Ms Nyipika, those
experts
agreed that the plaintiff had initially developed acute stress
disorder followed by post-traumatic stress disorder with
depressed
mood. They also agreed that his condition has become chronic and he
will require 15 to 20 session at R920 per session.
[20]
The
report compiled by the defendant’s psychiatrist Dr Magagula,
was also admitted as evidence, and the contents thereof were
admitted
by the plaintiff. Dr Magagula diagnosed the plaintiff with major
depressive disorder and chronic post-traumatic stress
disorder. She
concluded that he suffers from distress triggered by exposure to cues
which remind him of the trauma, namely nightmares,
insomnia, intense
fear and the fear of being left alone in public places where he is
likely to encounter police officers. He further
suffers from low
self-esteem, sexual problems, daytime drowsiness and poor attention
and concentration. She recommended both pharmacological
and
psychological treatment.
[21]
The
parties also agreed on the actuarial calculations by Dr Koch and Mr
Londen. The plaintiff’s loss of income was quantified
in the
sum of R168 061 and his future medical expenses at R87 357.
The
evidence on behalf of the defendant
[22]
After
the plaintiff’s case was closed Nyameka, Mgunuza and one
Lietenant Colonel Luvuyo Lungongolo were called to testify
on behalf
of the defendant. Luvuyo’s evidence related essentially to the
location and use of the office at the Duncan Village
Police Station
where the plaintiff was allegedly tortured. His evidence was not of
much assistance to the court and neither counsel
has referred to it
during argument. Although I have had regard to the relevant aspects
thereof, I do not regard it as necessary
to provide a summary
thereof. Nyameka’s and Mgunuza’s testimonies can be
summarized as follows.
[23]
Only
the two of them visited the Gilwell Taxi Rank on 5 January 2012, and
neither Mpongoshe nor Khasembe was present at the time.
They had
searched the salon and discovered a “bompie” of dagga.
Nyameka did not make any entries in his pocket book
regarding the
events and Mgunuza had lost his pocket book. They requested the
plaintiff to accompany them to the Fleet Street Police
Station and he
did so voluntarily. They did not arrest him, but merely intended to
recruit him as an informer, and in particular,
to provide information
to them regarding the activities of Mpongoshe, who is a well-known
dagga dealer.
[24]
They
drove with the plaintiff to the Fleet Street Police Station where
Nyameka discovered that he did not have the key to his office
in his
possession. They then drove to the police offices at Malcomes Park,
Southernwood, where they fetched another set of keys,
and thereafter
returned to Fleet Street where they questioned the plaintiff
regarding the dagga discovered at the salon and also
in respect of Mr
Mpongoshe’s activities.
[25]
They
did not make any entries in the occurrence book at Fleet Street
Police Station since they did not arrest the plaintiff but
were
merely interviewing him in order to recruit him as an informer. They
returned the plaintiff to the rank at approximately 12h00
that same
day. They denied that they assaulted or tortured the plaintiff in any
manner.
[26]
They
were both subsequently contacted by the officer who was charged with
the investigation of the plaintiff’s complaint,
namely Warrant
Officer Dicks, but were merely asked what their connection was to
Mpongoshe. Even though they were aware that Dicks
was investigating
charges of assault against them, they both made affidavits wherein no
mention was made of the plaintiff’s
arrest (or for that matter
his alleged voluntary removal from the Gilwell Taxi Rank) and the
subsequent interview at the Fleet
Street police station. They both
admitted that the affidavits were made with the sole purpose of
discrediting Mpongoshe (who was
identified by Dicks as being an
important witness), and that the prosecuting authority’s
decision not to prosecute was mainly
based on the contents of those
affidavits.
[27]
They
both attempted to proffer explanations for the factual inaccuracies
in their affidavits - Nyameka contending that he was confused
regarding the dates, and Mgunuza claiming that Dicks simply did not
minute his statement correctly. They both claimed that the
“bompie”
of dagga was recorded in the SAP13 register that same day.
[28]
The
defendant initially filed a comprehensive affidavit by one Mbeki,
explaining why the register could not be located. This was
obviously
done in the realisation that the entry in respect of the dagga was
crucial to the defendant’s case, as it was that
discovery that
allegedly caused Nyameka and Mgunuza to request the plaintiff to
accompany them to the Fleet Street police Station
for questioning.
[29]
When
the matter was heard during November 2015 the defendant applied for
leave to discover an extract of the SAP13 Register which
had been
fortuitously discovered.
[30]
When
the trial resumed during February Mr
Dukada
,
however, placed on record that after consulting with his witnesses,
the defendant abandoned his application for leave to introduce
the
document into evidence. The extract of the SAP13 was nevertheless
admitted by agreement and Mr Clark thereafter applied to
reopen his
case. That application was not opposed by the defendant, and being of
the view that it would be appropriate and fair
to do so under the
circumstances, I allowed the plaintiff to reopen his case in order to
call Captain Franzen, who is the custodian
of the SAP13 Register at
the Fleet Street police station.
Further
evidence on behalf of the plaintiff
[31]
Franzen
testified that he is charge of the SAP13 Register at the East London
police station (also known as the Fleet Street Police
Station). He
stated that only documents are kept in the archives and the SAP13
Register would have been readily available.
[32]
The
Register indicates that in respect of the entry at 5.1 of the
extract, only items 1 to 9 were received by his clerk. Item no
10 was
recorded as being a dagga “bompie”. Items no 2 to 9 were
subsequently destroyed in his presence on 20 May 2012
and recorded as
such under column 6.
[33]
Item
no 1, which is a bicycle, was sold at public auction on 30 November
2012. At that time item no 10 had not yet been recorded
in the
register, since he had drawn a line underneath item no 9 to indicate
that the entry had been closed off on 30 November 2012.
He was
accordingly adamant that the entry in respect of the dagga bompie
(item 10) had been inserted afterwards. The upshot of
this witness’s
testimony was thus that the entry relating to the dagga bompie must
have been inserted after 30 November 2012.
This was no doubt done
with the view of creating the false impression that the entry had
been made on 5 January 2012.
Discussion
[34]
It
must have been clear from my summary of the evidence that the
plaintiff was a good and credible witness. His conduct immediately
after the alleged assault was consistent with his claims of
ill-treatment at the hands of the police. Immediately upon his
arrival
at the taxi rank he showed his injuries to both Kasembe and
Mpongoshe and went to consult a doctor that same evening. He again
consulted a doctor the following morning and thereafter laid assault
charges at the Duncan Village police station. His evidence
was
corroborated in all material respects by both Kasembe and Mpongoshe.
Kasembe, in particular, was in my view a very impressive
witness.
Despite being subjected to probing cross-examination by Mr
Dukada
,
he remained steadfast in his assertions. And furthermore, the
plaintiff’s claims were crucially also corroborated by
extensive
medical evidence, which confirmed that his injuries were
consistent with his claims of assault and torture. In my view
accordingly,
the plaintiff’s version was eminently probable and
compelling. It was thus not surprising that Mr
Dukada
has
not been able to proffer any serious criticisms of the plaintiff’s,
or his witnesses’ testimonies.
[35]
It
must similarly have been clear from my summary of the evidence
proffered on behalf of the defendant that his version is fraught
with
improbabilities, and that it is contrived and patently false. I have
no doubt that Nyameka and Mgunuza deliberately omitted
to mention
their encounter with the plaintiff in their affidavits made in
response to Dicks’s enquiries. They both reluctantly
conceded
that Dicks had told them about the assault charges against them, yet
they failed to make any mention of their interaction
with the
plaintiff on 5 January 2012. They also reluctantly conceded that, at
least
prima
facie
,
the purpose of those affidavits were solely to discredit Mpongoshe
and thus to convince the prosecuting authority not to prosecute.
The
fact that they failed to mention that, at least on their version, the
plaintiff agreed to accompany them to the police station
and that he
was released after a few questions, compels the ineluctable inference
that those assertions are false. It is in my
view also highly
unlikely that Dicks would merely have asked them to explain their
connection to Mpongoshe and not invite them
to address the
plaintiff’s allegations, when he was in fact investigating
assault charges laid by the plaintiff.
[36]
But
it is the conduct of Nyameka and Ngunuza in regard to the discovery
of the SAP13 Register that is a matter of even greater concern.
As I
have mentioned earlier, the defendant initially filed a comprehensive
affidavit explaining the difficulties in locating the
SAP13 Register
which had allegedly been archived. These averments were, however,
soundly gainsaid by Franzen, who was the custodian
of the Register at
all material times. Franzen has convincingly explained how relatively
easy it would have been to trace the Register
if indeed
bona
fide
attempts
were made in this regard. The serendipitous subsequent discovery of
the Register was, in my view, nothing less than a brazen
and
duplicitous attempt to mislead the court through the
ex
post facto
fabrication of evidence. Franzen’s evidence has conclusively
established that the entry relating to the dagga “bompie”
could only have been made after 30 November 2012. I am thus left with
no doubt that that entry was in fact made after 30 November
2012, and
in an attempt to justify the plaintiff’s removal from the rank
and his subsequent questioning at the Fleet Street
Police Station.
There can also be little doubt that this brazen ruse was perpetrated
in the realisation that the alleged discovery
of the “bompie”
of dagga was a crucial element of the defendant’s case. And
there is, at the very least, a strong
suspicion that Nyameka and
Ngunuza had both been complicit in this serious attempt to fabricate
evidence.
[37]
I
am thus of the view that the defendant’s version is not only
improbable but also patently false. Apart from the above-mentioned
difficulties there are numerous other improbabilities in the
defendant’s version which must have been apparent from my
summary
of the evidence. By way of example, Nyameka and Mgunuza claim
that they were constrained to take the plaintiff to Fleet Street for
questioning because bystanders were gathering and making it difficult
for them to do their work. This simply did not make any sense,
since
they did not intend to arrest the plaintiff but merely to question
him regarding Mpongoshe’s activities. On their own
version they
only asked him a few questions at Fleet Street Police Station and
thereafter returned him to the rank. There was no
reason therefore
why that objective could not have been achieved by simply questioning
him in the container.
[38]
Mr
Dukada
argued
that the plaintiff’s version was improbable since it was
unlikely that he would not have shouted or screamed at some
stage of
his ill-treatment to alert members of the public or other police
officers at the Duncan Village police station about his
plight. He
argued, in addition, that it was unlikely that the police would have
acted in the claimed manner despite the presence
of the young man who
would have been a damning witness. I do not agree. In my view it is
not improbable that the plaintiff would
have been too petrified under
the circumstances to attempt any action that might have upset the
police officers. Relatively soon
after his arrest, at least on his
version, he had been assaulted and threatened, and would no doubt
have been in state of shock
and profound fear for the entire duration
of his detention.
[39]
I
am accordingly of the view that the plaintiff has proved on a balance
of probabilities that he was unlawfully arrested by Nyameka,
Mgunuza
and two other unknown police officers between 10am and 11am on 5
January 2012, thereafter assaulted and tortured at the
Southernwood
and Duncan Village Police Stations, and only returned to the Gilwell
Taxi Rank at approximately 16h00 that same day.
Quantum
of damages
[40]
The
defendant has admitted the quantification of plaintiff’s loss
of earnings (being R168 061), and the parties have
agreed that
the usual contingency of 15% should be applied to that amount, thus
leaving an amount of R142 851.85.
[41]
The
plaintiff’s future medical expenses have also been agreed in
the sum of R87 357.00.
[
42]
In
respect of general damages Mr
Clark
has
referred me to
Peterson
v Minister of Safety and Security
2009
6 QOD K6-1 (ECG), where Plasket J awarded R60 000 in respect of
unlawful arrest and detention, and R120 000 in respect
of
assault, to a plaintiff who had been pepper-sprayed, dragged from his
home in shorts, and locked in cell for 8 hours. The present
day value
of those amounts are R86 000 and R172 000, respectively.
[43]
In
Poswa
v Minister of Safety and Security
(115/08)
[2011] ZAECPEHC 41 (29 September 2011), Beshe J awarded damages in
the amount of R170 000 to a plaintiff who developed
depression
and post-traumatic stress after being assaulted by police officers.
[44]
Mr
Clark
argued
that a sum of R350 000 in respect of general damages would be
appropriate, since the assaults on the plaintiff in this
case are
more severe than those perpetrated in the above-mentioned cases. Mr
Dukada
,
on the other hand, submitted that an amount of R250 000 would be
fair.
[45]
The
assaults on the plaintiff were indeed more serious than those
perpetrated in
Peterson
and
Poswa
(
supra).
What
is also of concern is the brazen and cruel manner in which the
assaults were perpetrated by the police officers and their subsequent
irregular attempts to hide their unlawful actions. Although the
plaintiff was detained for only about 5 to 6 hours, he had been
severely traumatised during that period and the
sequelae
of
the assaults are serious and will undoubtedly be long-lasting. The
plaintiff’s post-traumatic stress has resulted in an
irrational
fear of police, which he will probably endure for the rest of his
life.
[46]
For
these reasons I am of the view that general damages in the sum of
R300 000 would be fair and appropriate.
Order
[47]
In
the result the following order issues:
1.
The
defendant must pay the plaintiff:
1.1
the
sum of R300 000.00 (three hundred thousand rand) in respect of
general damages;
1.2
the
sum of R142 851.85 (one hundred and forty two thousand eight
hundred and fifty one rand and eighty five cents) in respect
of loss
of income;
1.3
the
sum of R87 357 (eighty seven thousand three hundred and fifty
seven rand) in respect of future medical expenses;
2.
The
defendant must pay the plaintiff interest on the above amounts at the
prescribed legal rate from the date of service of summons,
namely 31
October 2012 to date of payment;
3.
The
defendant is ordered to pay the plaintiff’s costs of suit on
the party and party scale, which costs are to include:
3.1
the
qualifying experts expenses of Dr HD Van Daalen, Mr Ian Meyer, Mr G
Perumal, Dr RJ Koch and Mr R Berg;
3.2
photographs
depicting plaintiff’s injuries and the Duncan Village Police
Station;
3.3
Mr
Andile Mpomgoshe, Wacky Kasembe, Captain Franzen and Dr Sifuba are
declared necessary witnesses.
4.
The
defendant must pay the plaintiff interest on the costs of suit on the
prescribed legal rate from date of
allocatur
to
date of payment
.
_________________________
J.E SMITH
JUDGE OF THE HIGH
COURT
Appearances
Counsel for the
Plaintiff :
Advocate Clark
Attorney for the
Plaintiff :
I C Clark Inc.
25 St Lukes Road
Southernwood
East London
Ref: Mr Clark/VK/C/F377
Tel: 043 743 3420
Counsel for the
Defendant :
State Attorney
Old
Spoornet Building
17
Fleet Street
East
London
Ref:
T Danjwa/48/13-P6
Date
Heard
: 26 February 2016
Date Delivered
:
26 April 2016