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[2016] ZAKZPHC 80
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Thungo v Madida and Others (13750/2013) [2016] ZAKZPHC 80 (16 September 2016)
IN THE HIGH COURT
OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION,
PIETERMARITZBURG
CASE NO:
13750/2013
DATE: 16
SEPTEMBER 2016
In the matter
between:
MTHOBISI LUCKY
THUNGO
.........................................................................................
PLAINTIFF
Vs
OFFICER
MADIDA
............................................................................................
FIRST
DEFENDANT
OFFICER
MABUYAKHULU
........................................................................
SECOND
DEFENDANT
THE MINISTER OF
POLICE
..........................................................................
THIRD
DEFENDANT
ORDER
The following
order is granted:
The defendants
are liable to the plaintiff jointly and severally, the one paying the
others to be absolved, for damages for unlawful
arrest, detention and
assaults.
JUDGMENT
D. Pillay J
Introduction
[1]
The plaintiff, born on 3 January 1987,
claims damages arising from his alleged assault by Officer Madida the
first defendant, and
Officer Mabuyakhulu the second defendant, on 18
March 2012 at Ezintabeni, Waaihoek, a rural area in Ladysmith. His
assailants were
employees acting in the course and scope of their
employment with the third defendant. The trial proceeded on liability
alone.
[2]
It was common cause that the plaintiff
sustained burn wounds on his calves, on the back of his right thigh
and on the back of his
left fingers. The defendants denied that they
caused these or any wounds. They contended that the arrest was staged
at the instance
of the plaintiff to ward off suspicion that he was a
police informer. At the time of his arrest the plaintiff was wearing
a tracksuit
pants made of plastic-like fabric. The defendants had no
knowledge as to who burnt him but suggested that it could be those
who
suspected the plaintiff of being a police informer. It was also
common cause that the defendants arrested the plaintiff and
handcuffed
his hands behind his back. The defendants contended that
the plaintiff was unharmed when they parted company with him. Whether
the defendants assaulted the plaintiff is the primary dispute.
Determining whether the arrest was staged or genuine goes to proving
the reason and justification for the arrest and consequently the
credibility of the parties in respect of the primary dispute.
To
prove their defence that the arrest was staged the defendants also
had to prove that the plaintiff was a police informer.
The Plaintiff’s
Case
[3]
The plaintiff lived with his grandmother,
aunt and sister of twelve years. He testified briefly that the police
arrived at 8h00
at his home. Officer Madida entered the house,
grabbed him by the arm, handcuffed him, assaulted him by slapping him
with open
hands and took him out into the yard. Officer Madida
demanded that the plaintiff produce a firearm. He did not have a
firearm.
Officer Mabuyakhulu hit the plaintiff with a stick. They
took him to an unmarked police vehicle.
[4]
Officer Madida gathered some dry grass.
Officer Mabuyakhulu produced a match and plastic bags. They lit the
grass. The flames burnt
him. He remained tied to the pole for about
three hours. The officers continued to add grass to keep the fire
alight. Eventually
they untied the plaintiff and took him to
Sidogiphola where they dropped him off. The plaintiff had to make his
way home slowly
on foot, resting now and then. He arrived home late
at about 19h00. The following day an ambulance transported him to the
hospital.
The plaintiff remained hospitalised for two weeks.
[5]
He concluded his evidence in chief by
correcting his particulars of claim. His evidence was that the police
untied him from the
pole; it was not a passer-by who untied him as
stated in the original particulars of claim nor was it members of his
family according
to his amended particulars of claim.
[6]
The plaintiff’s examination-in-chief
was brief. Much more emerged during cross-examination and
clarification by the court.
Under cross-examination the plaintiff
acknowledged knowing Officer Madida because he had seen him when he
had been detained on
a previous occasion. He had no contact with
Officer Madida thereafter. He denied that he was an informer and that
he had assisted
the police in solving nine cases against his family
members in 2012. The defendants’ counsel did not identify
these
cases for him.
[7]
He did not know Officer Mabuyakhulu until
one day he arrived at the house to see the plaintiff’s brother.
The plaintiff denied
any knowledge of his family suspecting Officer
Mabuyakhulu of having thrown his brother out of a moving vehicle and
killing him.
[8]
After Officer Mabuyakhulu and Officer
Madida assaulted him in the yard it emerged that they took him to
Nogqaza. The plaintiff agreed
with the defendants that they had taken
him away from his home to search for his uncle. The plaintiff said
that he was not assaulted
inside the vehicle but his hands were still
bound. After searching for his uncle they returned to his home. Using
a white rope
the police tied him around his waist pinning his arms
behind him as they did so and then tied him to a washing line pole in
the
yard. The rope was also tied across his chest and neck. The
washing line pole was 30cm wide and wedged between his arms and his
back. He was not handcuffed.
[9]
They burnt grass and plastic around him for
about three hours. His tracksuit pants which was slightly burnt
leaving small holes
stuck to his skin. His feet did not burn because
he managed to slide them away from the fire. There were no injuries
to his buttocks
because the pole protected him.
[10]
The police untied him before they took him
away. His family was afraid to assist him. His explanation for the
two amendments to
his particulars of claim on the issue of who untied
him was that his previous attorneys did not understand him even
though he spoke
through an interpreter.
[11]
The plaintiff further denied that one of
his friends telephoned him while he was in the vehicle with the
defendants, that he informed
the police that this friend had an
unlicensed 9mm Norinco pistol and that the police took him to his
friend.
[12]
He was taken to hospital the following day
at about 13h45 when he could not bear the pain. He did not go to
hospital the same day
because it was not immediately very painful.
[13]
The plaintiff denied receiving a call from
Officer Madida the following morning enquiring whether everything
went well after his
arrest the previous day; he had no contact with
Officer Madida after his assault. He also refuted having given
Officer Madida his
cellular phone number or ever calling him to say
that he was suspected of being an informer or that he was afraid of
being assaulted
or killed. He never ran away from home. His arrest
was real, not staged, he persisted.
[14]
In response to questions from the court,
the plaintiff replied that the police took him to Nogqaza in search
of a person by the
name of Jabu. He knew who Jabu was but did not
know what the police wanted from him. They did not find Jabu but
found another boy
whom the police assaulted.
[15]
When the police started burning him his
grandmother went into the house whilst his little sister Nelile
peeped through the door.
He was facing them as he cried out in pain.
So they saw and heard him. He did not go to the hospital on the same
day because the
transport was giving trouble.
[16]
He lodged a complaint at the police station
in the same month of his assault. His grandmother has since passed
away. Hence she was
unavailable to testify. His sister was twelve
years and too young to testify.
[17]
Ms Ncengumusa Thungo, an adult female and
cousin of the plaintiff gave her eyewitness account of the police
burning the plaintiff.
Immediately after arresting the plaintiff they
arrived at her house and locked her family in their home saying that
they would
return. Approximately three hours later they returned and
opened the door to her house. They instructed Ms Thungo to use a
shovel
to dig the ground near her kraal. She was not challenged when
she testified that the police had their name tags covered with brown
plaster. She could not see clearly from the distance where she stood
exactly whether the pole was wedged between the plaintiff’s
hands and back. However, she did see the flame behind and near his
legs. After burning him for fifteen to twenty minutes the police
untied him. They left with him. According to her the ambulance
arrived at 9h00 the following morning. She denied that he was an
informer and that there was any discussion to that effect in the
family.
[18]
In an attempt to discredit her eyewitness
account the defence cross-examined Ms Thungo about the distance
between her house and
the plaintiff’s house. She testified that
it was about thirty paces, that her house was below the plaintiff’s
house
and that there was a fence between their houses. The defence
persisted at length that there were no houses nearby the plaintiff’s
house, which was in the rural area and therefore isolated.
[19]
Ms Thungo told the court that more than
five policemen were present at the plaintiff’s house. Two
policemen carried short
firearms in their hands and another had a
long firearm over his shoulder. Two others carried big firearms. She
saw the two policemen
who came out of the house kicking and hitting
the plaintiff with open hands. From where she was she did not hear
what they were
saying.
[20]
Through the cross-examination the defence
suggested that Ms Thungo saw smoke that must have come from fires lit
for the purpose
of cooking. Ms Thungo was adamant that she saw flames
near the brown washing pole. She could not recall clearly whether the
plaintiff
was handcuffed as well as tied with the rope when he was
being burnt. Although she could not recall the colour clearly, she
saw
the brown or yellow rope used to tether animals binding the
plaintiff to a black pole.
The
Defendants’ Case
[21]
Warrant Officer Jerome Madida has been a
policeman for twenty-two years and a Warrant Officer for one year. He
testified that the
plaintiff had been his informer for about ten
years. He met him as a member of his soccer team. The plaintiff was
concerned about
many problems in the area. They exchanged telephone
numbers and arranged that the plaintiff would miss-call him whenever
he had
information and he would return the call. Officer Madida use
to buy him airtime from his own funds. He did not register the
plaintiff
as an informer because he would have had to do so in
Ladysmith police station. The plaintiff was afraid of those policemen
who
resided in his area.
[22]
On 13 March 2012, Officer Madida was part
of a team led by Warrant Officer Mabuyakhulu assigned to police a
concert in Ladysmith.
On arriving there they discovered that the
concert had been rescheduled. Officer Madida approached Officer
Mabuyakhulu with the
suggestion that they stage an arrest upon the
plaintiff who feared being attacked because he was suspected of being
an informer.
Officer Madida then called the plaintiff to arrange the
staged arrest. Officer Mabuyakhulu called the team together and
briefed
them that they were to proceed to the plaintiff’s
place.
[23]
At the plaintiff’s home Officer
Madida and Constable G.N Mthembu entered whilst other policemen were
around the house. Two
drivers remained with the two vehicles, one of
which was an unmarked police vehicle.
[24]
The plaintiff volunteered information about
his uncle having an unlicensed firearm. They proceeded with the
plaintiff to the cattle
dip and then to the tavern in search of his
uncle. The plaintiff alighted from the vehicle to identify his uncle.
His uncle was
not there. They returned to his house to search for his
uncle’s firearm. They found no firearm at the plaintiff’s
house.
[25]
On the way back from the tavern the
plaintiff received a cellular phone call from a friend inviting him
to a dance. They decided
to go to the friend’s place. Officer
Mabuyakhulu and two other officers proceeded with the plaintiff in
the unmarked police
vehicle.
[26]
Officer Madida was emphatic that there were
no neighbours within one kilometre of the plaintiff’s house. Ms
Thungo was not
a neighbour. Her property was separated from the
plaintiff’s property by a fence. He persisted that she could
not have witnessed
any assault on the plaintiff from the distance of
her home. Then the possibility of an
in
loco
inspection arose. Quickly he
conceded that Ms Thungo was about thirty-five metres away. He denied
instructing his counsel
that the neighbouring houses were about 1000m
away. He could not explain why his counsel put this figure to Ms
Thungo.
[27]
He was not concerned about staging the
arrest with other policemen being in attendance as he had worked with
them for a long time
and trusted them. Officer Mabuyakhulu briefed
the ten members of the police team on how they would conduct the
staged arrest. When
the plans changed to go in search of firearms
that was also communicated to the police team.
[28]
Warrant Officer Frank Themba Mabuyakhulu
began testifying in chief through an interpreter that he was a
policeman for twenty-three
years. Officer Madida reported to him that
the plaintiff had said that the ‘community was going to attack
him’. This
was apparently incorrectly interpreted and Officer
Mabuyakhulu elected to continue to testify without an interpreter. He
clarified
that Officer Madida advised him that the plaintiff was
suspected of working with the police and people were threatening to
kill
or assault him. Officer Mabuyakhulu had seen the plaintiff once
on 27 January 2012 and had not known then that he was Officer
Madida’s
informer. He instructed his members to provide cover
at the homestead. He dropped off his team some distance from the
homestead
so that people, including the plaintiff who would have had
to join them to avoid suspicion, would not run away as they usually
did when they saw a police vehicle.
[29]
After arresting the plaintiff from his home
the plaintiff accompanied the police to point out suspects. Observers
would not have
known that the plaintiff was co-operating with the
police because the he had a way of pointing out suspects without them
noticing.
As for the pointing out of the plaintiff’s friend the
latter accompanied the plaintiff and the police to the person from
whom the friend had borrowed a firearm. On arrival Officer
Mabuyakhulu realised that he had already retrieved that firearm and
abandoned that investigation.
[30]
Officer Mabuyakhulu speculated that the
plaintiff was falsely implicating him because his family had
suspected that he had killed
another Mr Thungo in January 2010 when
he caused that Mr Thungo to jump out of a moving vehicle. On 1
November 2009 he arrested
the plaintiff’s uncle who was
involved in the taxi industry and found him in possession of 300
rounds of ammunition and two
unlicensed firearms. He had information
that the uncle was expecting another consignment of seven R5 rifles
from Johannesburg and
the police were still looking for those rifles.
On 4 January 2010 they found his uncle in possession of an AK47. None
of this evidence
was put to the plaintiff. Although Officer
Mabuyakhulu instructed his counsel that he met the plaintiff at a
traditional ceremony
this too was not put to the plaintiff.
[31]
Contradictions emerged between Officer
Mabuyakhulu’s evidence and his warning statement. He testified
that paragraph 8 of
his warning statement was a mistake in so far as
it recorded that the plaintiff’s friend was still with them
when the plaintiff
alighted. It was also not correct that the
plaintiff phoned his friend but rather that he was phoned ‘by’
his friend.
He attempted to correct paragraph 5 of his statement by
suggesting that the word
‘
by’
was missing in the first line of that paragraph. If the word ‘by’
was missing from that sentence, this explanation
did not cover the
second sentence, from which it was clear that it was the plaintiff
who phoned his friend.
[32]
That concluded the evidence for the
defendants.
Analysis
[33]
The plaintiff’s evidence-in-chief
covered the bare essentials of his claim. More details emerged from
his cross-examination
and questions for clarification by the court.
The fact that the plaintiff did not give a detailed account when he
testified in
chief cannot be held against him because his counsel did
not question him in any detail about the events of that day.
Furthermore,
the defence did not make any submissions about new
evidence coming to light under cross-examination or from questioning
by the
court. The new evidence related to being driven away from his
home, in handcuffs, to find his uncle and to Jabu Nkosi in search
of
illegal firearms. The plaintiff had pleaded this. When he was
cross-examined it emerged that these facts were not in dispute.
[34]
This
evidence would have been vital to the plaintiff’s case if he
had pleaded a claim for damages for unlawful arrest and
detention.
Each act constituted a separate cause of action and should have been
specifically pleaded.
[1]
Although the plaintiff’s erstwhile attorneys had pleaded that
the plaintiff had been unlawfully arrested, they failed to
lodge a
claim under this heading. Even though it was common cause that the
plaintiff was detained in police custody, this was also
not
specifically pleaded. This was not the only deficiency in the
plaintiff’s particulars of claim.
[35]
The plaintiff’s attorneys omitted to
plead another assault. Although the plaintiff testified that Officer
Mabuyakhulu assaulted
him with a stick and Officer Madida with his
open hand, these assaults were not specifically pleaded. The Patient
Report Form notes
that the examination of the plaintiff revealed that
he had been assaulted on his head and body. Ms Thungo also
corroborated the
plaintiff’s testimony on this issue.
[36]
The plaintiff was not prone to exaggerate
the harm he suffered. For instance he answered ‘no’ to
being assaulted in
the police vehicle. Furthermore he said there was
just swelling but no bleeding from the stick wounds on his shoulders.
His evidence
that he was burnt for three hours was exaggerated
possibly because it seemed to go on for a long time. He was not
seriously challenged
on this point. The probabilities are that the
plaintiff had been assaulted on his back and shoulders.
[37]
A more serious difficulty for the plaintiff
emerges from the amendment of his particulars of claim. Both versions
were inconsistent
with his evidence. The credibility of his evidence
has to be tested against all the evidence. The fact that his
erstwhile attorneys
did not claim for his unlawful arrest and
temporary detention in police custody and the assault on his
shoulders is an indication
that they might not have been sufficiently
attentive to their duties. The competence of the interpreter who
interpreted for the
attorney has also not been objectively
established. Whether an interpreter was used on both occasions, that
is, when the particulars
of claim were formulated and reformulated,
was not fully ventilated in evidence in chief or probed at any length
under cross-examination.
It does not necessarily follow from the
contradiction between the plaintiff’s evidence and his
particulars of claim that
he is mendacious.
[38]
The plaintiff’s first explanation for
not going to the hospital immediately after the incident because the
pain was not that
bad, finds some support in the nurse’s
assessment of him on admission, namely that his burns were
‘superficial’.
Furthermore, pain is relative, depending
on an individual’s tolerance level. However, the recording in
the nursing history
compiled on the day of his admission into
hospital, which was a day after his arrest, confirms that his
circulation was impaired,
that he was restless and suffered from
insomnia due to the pain from his wounds. He had another explanation.
[39]
As for his second explanation that
transport to the hospital was a problem, the court can also not
reject this explanation outright.
The defendants did not
cross-examine the plaintiff about his transport problem when, to
their knowledge, his family owned taxis
and there was good gravel
road access to his home. If he had access to his family’s taxis
he would not have had to wait for
an ambulance that, according to the
Patient Report Form, arrived as late as 16H00, or even at 13H43
according to the hospital records
that show that as the time when the
admitting doctor examined him, which is more consistent with the
plaintiff’s evidence.
Although there were differences in the
evidence relating to the time that the plaintiff went to hospital,
these differences are
immaterial once it became common cause or not
disputed that the plaintiff went by ambulance to hospital the
following day for treatment
for his wounds.
[40]
Ms Thungo who had passed grade 11 was a
thoughtful witness. She corroborated the plaintiff’s evidence
first to the extent
that she saw the police assault him by hitting
him as he was brought out of his house. Although she heard the police
shouting she
could not hear what they were saying from where she was.
Second, she saw the police burn a fire behind the plaintiff who was
tied
to a pole with a rope used to tether animals. From the distance
where she was, she could see flames; they were about the same height
as the plaintiff attested to. However she could not see that he was
being burnt at that time; she saw his burns only the next morning
when the ambulance arrived to take him to the hospital. She recalled
seeing burning plastic bags flying off in the wind which has
a ring
of truth because it is something that she would notice as a person
living in a rural setting of dry grass and homes with
thatched roofs.
Third, the crux of her cross-examination was aimed at putting her
dwelling as far away as possible from the plaintiff’s
home in
order to discredit her eyewitness account of events. This tactic
failed once Officer Madida conceded that the neighbours
were about
thirty-five metres from the plaintiff’s home. She was not that
far that she could not see a flame half a metre
tall. Fourth, the
suggestion by the defendants’ counsel that the flame could have
been from the fires lit for cooking in
a rural area where there was
no electricity implied that the defendants did not dispute that there
might have been a fire in the
vicinity but it was there for cooking,
not for the purposes of burning the plaintiff. Last, she denied that
the plaintiff’s
family or the community believed him to be an
informer.
[41]
Ms Thungo did not exaggerate. She was also
unshaken under cross-examination. Unlike the officers who had
testified in court proceedings
previously, the plaintiff and his
witness were unsophisticated, unpractised novices. Typically there
were some discrepancies about
time, timing, distance and colour in
the evidence for the plaintiff. None of these discrepancies are
material.
[42]
The evidence for the defendants is far from
flawless. Some of the contradictions within and between the evidence
of the two officers,
and between their testimonies and their
statements, are self-evident from my summary of their evidence above.
To succeed with their
defence that the arrest was staged the
defendants had to establish in rebuttal that the plaintiff was a
police informer. If they
failed to do so then they will also fail to
justify the reason for their presence at the plaintiff’s home
and for arresting
him. If he were not an informer then neither the
plaintiff’s family nor the community would have had a motive to
burn him.
The defendants specifically disavowed any suggestion that
the plaintiff’s injuries were self-inflicted.
[43]
Was the plaintiff a police informer? If
Officer Madida had registered the plaintiff as an informer, it might
have been
prima facie
documentary proof that the plaintiff had been an informer. If neither
Officer Madida nor the plaintiff trusted the Ladysmith police
it is
unclear why a police informer of a Newcastle officer would have to be
registered in Ladysmith, especially when the police
from Newcastle
work in Ladysmith. Either the officers realised belatedly that not
having registered the plaintiff now created a
problem for them or the
plaintiff was not an informer.
[44]
Officer Madida had never lodged a claim for
payment for the plaintiff. Hence he did not know what an informer’s
reward would
be for good information regarding unlicensed firearms.
Officer Mabuyakhulu set the record straight with his evidence that
his unit
did not use informers because it had no money to pay for
them; instead it relied on crime prevention.
[45]
Under cross-examination Officer Madida
responded that the plaintiff had worked for him for about five to six
months before the incident.
This contradicted his evidence in chief
that the plaintiff was his informer for ten years. Officer
Mabuyakhulu further contradicted
the evidence for the defendants
saying that plaintiff provided information that led to arrests of his
family members in 2009 and
2010. When exactly the plaintiff became an
informer is not clear. The cases in which the plaintiff provided good
information could
have been objective evidence of him being a police
informer. These cases were neither put to the plaintiff nor were
their records
produced.
[46]
Surprisingly, although Officer Mabuyakhulu
had met the plaintiff only once before, he was able to testify that
the plaintiff had
‘a clever system of pointing out suspects to
the police’. Hence he would not expose himself as an informer
when he
pointed out suspects to the police. If he had only that day
come to know that the plaintiff was Officer Madidas’ informer,
which was one of his versions, how did he know this about the
plaintiff? He could also not have had direct personal knowledge that
as a result of information from the plaintiff the police were able to
retrieve rifles and pistols from his brother and a member
of the
Nkosi family. If anyone should have given this evidence, if it were
true, it would have been Officer Madida, the plaintiff’s
alleged handler. Officer Mabuyakhulu as the last witness for the
defence was simply making up evidence to cover up any perceived
cracks in the defence case.
[47]
It is not clear from the evidence for the
defendants as to whether the plaintiff reported that his family
members or members of
the community suspected him of being a police
informer. On clarification by the court Officer Madida conceded that
the plaintiff
did not mention his family specifically, but they had
been arrested as a result of information from the plaintiff. Officer
Madida
was therefore assuming that the family suspected the
plaintiff.
[48]
The police had to be clear about who
suspected the plaintiff beforehand in order to protect him properly
and to ensure that they
staged the arrest before such persons. The
officers did not seek out the plaintiff’s uncle, grandmother or
friend to show
them that they had arrested the plaintiff; they sought
these persons out in pursuit of their search for firearms. They gave
no
evidence of the impact or reaction on those observing the
plaintiff’s arrest nor could they say that they had put on a
convincing
performance. Clearly, they had not because the plaintiff
had been assaulted, on their version by someone other than
themselves.
[49]
Officer Mabuyakhulu volunteered that the
plaintiff provided information that led to arrests of his family
members in 2009 and 2010
to explain why the plaintiff might falsely
implicate him. However under cross-examination he testified that
there was a feud between
him and the Thungos, excluding the
plaintiff. The suggestion that the plaintiff might falsely implicate
him conflicts with the
defendants’ case that the plaintiff was
a good informer, a person who gave reliable information free of
charge out of a sense
of concern for crime in his area. If the
plaintiff wanted to falsely implicate Officer Mabuyakhulu then the
plaintiff could not
have made common cause with the police about
investigating crimes and in particular about retrieving firearms from
his family and
other members of the community.
[50]
Officer Mabuyakhulu’s evidence that
the plaintiff was being manipulated by another member of his family
and the media into
lodging this complaint against the police was
entirely hearsay and not put to the plaintiff. Nor was the plaintiff
cross-examined
at all about lodging his criminal complaint.
[51]
In response to the court’s question,
Officer Madida testified that the officers changed their plans when
the concert was rescheduled
and after he received a telephone call
from the plaintiff advising him that he was under suspicion. The new
plan was to stage an
arrest; it was not to retrieve firearms
initially. The idea that they should recover firearms occurred to him
after they had arrested
the plaintiff and were walking to the
vehicle. Some time prior to the staged arrest the plaintiff had
allegedly reported that his
uncle was abusive to his grandmother when
he consumed alcohol. Hence they revised their plan to find the
plaintiff’s uncle.
That the idea to recover firearms was his
and not the plaintiff’s contradicts the defendant’s
version that the searches
were voluntary and at the instance of the
plaintiff.
[52]
Regarding the call the plaintiff received
on his cellular phone from a friend, neither party canvased how the
plaintiff was able
to receive this call with his hands handcuffed
behind him. The defendants could not explain why the plaintiff
remained handcuffed
even whilst he travelled in the unmarked police
vehicle. This would not have been necessary if his arrest was staged.
[53]
Officer Mabuyakhulu drove the unmarked
vehicle so fast that the marked police vehicle was unable to keep up
with it. Using an unmarked
police vehicle hardly served the purpose
of staging a police arrest. The purpose of this trip to the friend
had to be to search
for firearms. It had nothing to do with
convincing members of the community that the plaintiff was not an
informer.
[54]
The officers colluded with each other in an
attempt to tailor their evidence. For instance, the evidence of the
defendants that
no one was in the car when the plaintiff was dropped
off in Sidogiphola is inconsistent with Officer Mabuyakhulu’s
warning
statement. There he had stated that when the police ‘released
him his friend was still with the police’. Furthermore,
the
police failed to call the friend or any of the other policemen in the
vehicle to corroborate their version that the plaintiff
was unharmed
when they dropped him off.
[55]
Officer Madida had always met the plaintiff
alone previously. Not even his superior Officer Mabuyakhulu had known
that the plaintiff
had been Officer Madida’s informer when he
saw him on 27 January 2012. Officer Madida had elected not to
register the plaintiff
in Ladysmith for fear that it would expose the
plaintiff to the police there. Having allegedly taken all these
precautions to safeguard
the plaintiff, the impromptu decision to
stage an arrest that exposed the plaintiff as an informer to as many
as eight or more
policemen is at best ham-handed or negligent. On the
defendants’ own version their plan failed because it had
precisely the
opposite effect: someone assaulted and burnt the
plaintiff after he had been with the police. If his uncle or anyone
else had been
arrested then however discreetly the plaintiff
identified the arrestees, the fact that he accompanied the police to
effect the
arrest would have been sufficient to fortify any
pre-existing suspicion that he was an informer, unless they were
planning to charge
him too. As policemen the defendants ought
reasonably to have anticipated this result. Policemen acting
reasonably would have planned
a staged arrest carefully and not on
the spur of the moment. Furthermore on their own version the
playacting turned out to be a
genuine search for illegal firearms. If
the plaintiff was an informer he was obviously not a good one.
Therefore all the indications
are that the searches were at the
instance of the defendants.
[56]
Significantly, the plaintiff was emphatic
that he was not a police informer. If the information led to arrests
in 2009 and 2010
and his family did suspect that he was an informer
he could not have continued to remain with his family and community
for such
a long time, at least not without some incident. The
defendants attested to no facts about how, according to the
plaintiff, the
suspicion manifested, what form the threats took, who
issued the threats and how they would be executed. On their version
they
simply accepted without questioning the plaintiff’s
allegations.
[57]
In summary the defence of staging an arrest
was one of few defences that the defendants could invoke once they
could not dispute
that the plaintiff suffered burns after they
arrested him. Their only hope was to persuade the court that the
plaintiff was burnt
after they had released him. If the plaintiff had
been threatened the defendants failed to explain how he managed to
continue to
live with his family for the past two or three years
since he allegedly gave information that led to the successful arrest
of his
family members. His evidence that he had not run away from
home went unchallenged. The defendants also failed to establish who
precisely threatened the plaintiff and what the nature of the threats
was.
[58]
The
particulars of claim omit to itemise claims for unlawful arrest and
detention. Counsel also omitted to specifically seek findings
on
liability under these headings. However, it is common cause that the
plaintiff was arrested and detained, albeit for a few hours,
the only
dispute being whether the arrest and detention were at the request of
the plaintiff. In addition to the compelling authorities
from the
appellate courts
[2]
it is in the
interests of justice and expeditious dispute resolution for the court
to recognise these claims. The court finds that
the plaintiff has
proven these claims for unlawful arrest and detention, even though
they were not pleaded or sufficiently particularised.
As for the
primary dispute, even if the defendants succeeded in proving that the
plaintiff was an informer, the unshakeable evidence
of Ms Thungo
supports the court finding the defendants liable for the burns. The
medical records corroborate evidence for the plaintiff
to support a
finding that the defendants assaulted the plaintiff on his shoulder
and back. This claim too is recognised on a similar
basis as the
claims for unlawful arrest and detention.
[59]
I find that:
a.
the plaintiff was not an informer;
b.
his arrest by the officers and other
policemen in the service of the third defendant was real and
initiated exclusively at the instance
of the defendants;
c.
the arrest and subsequent temporary
detention of the plaintiff were unjustified and unlawful;
d.
Officers Madida and Mabuyakhulu and other
policemen under their command unlawfully assaulted the plaintiff by
burning his calves,
thigh and fingers and striking him on other parts
of his body.
Order
[60]
Accordingly I conclude:
The
defendants are liable jointly and severally to the plaintiff, the one
paying the others to be absolved, for damages for unlawful
arrest,
detention and assaults.
D.
Pillay J
APPEARANCES
Counsel
for the Plaintiff : Advocate P. Jorgenson
Instructed
by :Roy Singh Attorneys
Suite
B1, Ground Floor
Stafmeyer
House
24-26
Beach Grove
Durban
Ref
no. :RS/tongo/NM
C/O
Surenda Singh and Associates
250
Langalibalele Street
Pietermaritzburg
Counsel
for the First : Advocate V.G Sibeko
and
Second Defendant
Instructed
by : State Attorney (KwaZulu-Natal)
6
th
Floor, Metropolitan Life Building
391
Anton Lembede Street
Durban
Ref.
Mr M Ngubane/vp/24/00227/13/T/P18
Tel
No. 031 365 2530
C/O
Cajee Setsubi Chetty INC.
195
Boshoff Street
Pietermaritzburg
Ref.
no. A. Essa/
Date
of Hearing : 17-19 August 2016
Date
of Judgment : 16 September 2016
[1]
Brandon
v Minister of Law and Order & another
1997
(3) SA 68
(C) at 79A;
Vincent
Ngobeni v The Minister of Police
(49069/2013) [2016] ZAGPPHC 61 (9 February 2016) para 18.
[2]
[zRPz]
Minister
Of Safety And Security v Kitase
2015
(1) SACR 181
(SCA) para 15;
Minister
of Safety and Security v Slabbert
[2010] 2 All SA 474
(SCA) para
10-12;
[zRPz]
South
British Insurance Co Ltd v Unicorn Shipping Lines (Pty) Ltd
1976 (1) SA 708
(A)
.