Neluheni v South African Custodial Management (16184/2011) [2016] ZAGPPHC 622 (13 May 2016)

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[2016] ZAGPPHC 622
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Neluheni v South African Custodial Management (16184/2011) [2016] ZAGPPHC 622 (13 May 2016)

REPUBLIC
OF
SOUTH
AFRICA
IN
THE
HIGH
COURT
OF
SOUTH
AFRICA
(GAUTENG
DIVISION,
PRETORIA)
CASE NO:
1
6184
/2011
DATE: 13 MAY
2016
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
TAKALANI
NELUHENI PLAINTIFF
a
nd
SOUTH
AFRICAN
CUSTODIAL MANAGEMENT
1
st
DEFENDANT
MAKWEA

2
nd
DEFENDANT
JUDGMENT
KHUMALO
J
INTRODUCTION
[1] The Plaintiff, Mr Takalani Neluheni ("Neluheni"),
an inmate at Kutama Sinthumule Maximum Prison ( "Sinthumule")

instituted an action for damages based on an action iniurarium
against the 1
st
Defendant, a custodial management company
that manages Sinthumule, and the 2
nd
Defendant, one Gary
Makwea (as duly amended), a custodial officer employed by the 1
st
Defendant at Sinthumule, based on an
actio iniurarium,
alleging
to have been unlawfully assaulted by the 2
nd
defendant and
nine other custodial officers of Sinthumule unknown to him.
[2] He is alleging to
have
suffered
damages
in the amount
of
R250 000.00 consequent upon the alleged unlawful assault. [3]
The 1
st
Defendant specializes
in the
operation of Correctional,
Detention
and
Health
Facilities
and
Sinthumule
falls
under
its
management, therefore cited as the nominal
Defendant. The 2nd defendant is an area manager in one of the
Sinthumule
prison's called
Green Prison and is said to
have
been at all relevant times acting within
his
scope
and
course
of
employment
with
the
1
st
Defendant
and
in
charge
of
what
happens at the Green Prison.
FACTUAL
BACKG
ROU
N
D
[4]
It
is common
cause that
the
Plaintiff
was
incarcerated
at
Sinthumule
on a
charge
of rape serving a
life
sentence.
He arrived at
Sinthumule
in June
2010 and was
held
in a cell at
the Green
Prison,
section KD.
[5]
It
is
also common cause that on
11
February 2011 there was an
incident between the Plaintiff and a
number
of the
ist
Defendant's
custodial
officers
one
of whom
was the
2nd Defendant that resulted in
the Plaintiff sustaining injuries
the nature
and
extent of which was recorded
on
the
J88
by Dr Rambadu,
a medical
officer in
the employ of
the 1
st
Defendant at a Healthcare facility located within
the prison which injuries are mentioned and conceded in the
Defendant' Plea.
[6] Plaintiff
alleges
in
his particulars
of claim that
during that
incident
the
2
nd
Defendant and nine other custodial officers without
his consent, hit him with open hands, fists and
kicked him in public and on sight of other
custodial
members
and fellow
inmates.
As
a
result of the assault
he
had to
undergo
medical treatment,
suffered
contumelia
and
in future
will
require medical
treatment
that
will include
psychotherapy. He
therefore
claims
to have
suffered damages made up as follows:
[6.1] Future medical
expenses R5O 000.00
[6.2] General damages for
pain and suffering R
lOO
000.00
[6.3]
Contumelia
suffered RlOO
000.00
TOTAL
R250
000.00
[7] In their
Plea, the
Defendants
refute the allegations of assault
alleging
in brief that:
[7.1]
The Plaintiff
who is
serving
a sentence of life
imprisonment for
rape and
murder
was, upon
being
charged and found
guilty of an offence of possession of dagga on
30
December 2010 on
his
plea of
guilty,
sentenced to 42 days restriction on amenities;
[7.2]
Upon
being informed
on 11February 2011
that
he
was to serve
his
sentence, Plaintiff
refused
to
be
removed
for
that
purpose,
threatened
to
burn
his
cell
and
became violent.
Custodial
officers
Luvhengo,
N E Munyai and T
Mahladisa
together with
Area Manager
Makwea,
Unit
Managers
Nemamilwe
and Mathebula,
all
employees of the 1
st
Defenda nt assisted each other to remove the burning toilet paper
from
him and
brought the
Plaintiff
under control.
[7.3]
As the Plaintiff was allegedly aggressive,
refusing to be handcuffed and had assaulted custodial officers
Luvhengo and Munyai, minimum force was used by the officers
to
subdue
the
plaintiff,
to
protect
the
prison
and
defend
themselves
and each other
against the attack by him.
[7.4] The Plaintiff as a result
sustained injuries of
a swollen cheek, upper and lower lips, left ankle
and
right
side
of
chest,
reddish
eyes
and
bruises
around
the
right elbow.
Voltran
tablets were subsequently prescribed and his right elbow and left
ankle x-rayed.
[8]
The
Defendants
deny
that
either
they
or
any
of
its officials
are
liable
to
pay to
the
Plaintiff
an
amount
of
R250
000.00
or
any
amount
at
all
and
Plaintiff
is
put
to
the
proof
thereof.
[9]
In
a
nutshell, the
Defendants
concede
to
the
use
of
force
on
the
Plaintiff
that
have
resulted
in the
injuries
he
sustained.
Plaintiff
alleges
that
the
injuries
were
sustained
as
a
result of
unlawful
assault
by the custodial officials. Once an infringement is established as
in
casu
the onus rests on the
wrongdoer to prove some ground of justification,
since
prima facie
any
infringement
of the
bodily
integrity of another
is
unlawful. The
issue therefore
would
be
whether
or
not the
Plaintiff's
injuries were
sustained
as
a
result of
a
deliberate
act
by the Defendants to impair Plaintiff of his
bodily integrity,
without a just
cause.
( required
to show a justifiable
reason
for
the
use of force,
minimum
or otherwise?)
which
must
be
shown
by the Defendants.
[
1
0]
However, notwithstanding the
concession
in
the
Defendant's
Plea that
Plaintiff
sustained
the
injuries
as
a
result
of
use
of
force
by the
various
custodial
officers
and
also
proffering an excuse for such conduct, which
is that
it
was
necessary to subdue the
Plaintiff as
he
was
threatening
to
burn
the
cell,
had
assaulted
officers
and
was
aggressive,
the Defendants still denied that they
assaulted the
plaintiff.
[1
1
]
The
persistence
in the
blanket
denial of assault
by the
Defendant
whilst
admitting to
the
use of force, created a tricky situation to what
was a straight forward
issue
of dispute.
It
resulted
in the
extension
of
issues
and
the
broadening
of
the
inquisitorial
process
by
the
parties.
Rather
than
a
probe only
on
the
issue of whether
or
not
there
was justification
for
inflicting injuries upon
the Plaintiff, the assault
per se
had
also to be interrogated. As a result
it was vital
to debrief first the connotation and perspective of the
"application or use of force"
act as alleged by the Defendant in
the context of the assault.
[
1
2]
Assault
was
defined
by
CR Snyman's
Criminal
Law,
the
4th
edition
on
p456,
as the
application
of force to the body of another
person,
or inspiring another person to believe that
the
force
will be
applied
upon
them immediately,
which definition
was
regarded as
narrow and not covering all the ways
in which the crime can be committed.
It was
therefore improved in the
5th edition on p 455 to read:
'
that
assault consists in any unlawful and intentional act or omission
which results in another person's
bodily
integrity
being
directly
or
indirectly
impaired,
or
which
inspires
a
belief
in
another person that such impairment of her bodily integrity is
immediately to take place'.
[13] Accordingly, the
elements of assault are:
[
1
1.
1
]
Conduct
or
an
act
which
results
in another
person's
bodily
integrity
being
impaired/or the
inspiring of a belief in another person that such impairment will
take
place;
[11.2]
Unlawfulness;
[11.3]
and intention.
[14]
in the new definition the application or use of force, equates to an
impairment of bodily integrity and there is a seperate
element of
unlawfulness and intention. Therefore the Defendant's denial of
assault yet admitting to the use of force, should be
understood in
principle to be a refutation that the custodial officers' conduct
covered all the elements of assault. In other words
the Defendants,
in the wide explanation they expounded in their Plea, deny
unlawfulness. Whilst as indicated proffering an excuse
or
justification for the impairment of the plaintiff's bodily integrity.
Since assault
per se
infers wrongfulness or
animus
iniuriandi
(see
Bennet v
Minister
o
f
Police
[1980] 3 All SA 817
(C),
1980 (3) SA 24(C)).
[
1
5]
Generally, the
issues
between the
parties
are defined
in the
pleadings,
which
would supposedly
then
provide an answer
in
determining which evidence
needs
to be adduced,
by whom
and when.
In
the
pleadings
in casu,
the
application
of
force,
that
is physical interference
and
the
resultant
injuries
have
been admitted
and
supposedly
common cause. The
onus
(evidential
burden)
therefore
of
alleging
an
excuse
or
negating
the
inference
of unlawfulness
or
(absence
of wrongfulness)
for the application
of
force
and
its extent
(as
its
alleged in their Plea)
rests on the Defendants;
see Macu v Minister
of
S
a
fety
and Security
[
1
983]
2 All SA 464
(A),
1
983 (4) SA
629(A)
;
Peterson v Minister of Safety and
Security
[2009] ZASCA
88
,
[2010]
1All SA
1
9
(SCA). As the Defendants carry the evidential
burden to prove justification
they therefore
customarily
carry the
duty
to
begin.
[16]
The parties may, however by agreement re-define the issues arising
from the pleadings; See
Knox
Darcy
&
Another
v
Land
&
Agriculture
Development Bank
of SA 9625/12
[2013] ZASCA 93
(05 June 2013). As
in
casu,
notwithstanding the Defendants conceding to the
impairment/infringement of the Plaintiff's bodily integrity, which is
prima
facie
unlawful the parties agreed as
indicated in their pretrial conference minutes that the Plaintiff is
still to establish the facts
of the physical interference pleaded by
him. According to them Plaintiff nevertheless bore the duty to begin
to adduce the evidence
required that establishes the assault he has
pleaded in his particulars of claim that imputes wrongfulness.
[17]
Logic however dictates, that, such infringement being
prima facie
unlawful, and since the setting up of an excuse for the
infringement shifted the evidential burden to the Defendant to combat
the
prima
facie
presumption of unlawfulness, the
Defendants would then carry the duty to begin; see
Mabaso v Felix
1981 (3) SA 865
(A). The excuse or justifiable cause to be
established is a factual issue that is to be determined objectively.
[
1
8]
Be
that as it may,
the matter proceeded on
the
basis of the parties' agreement, which
is that as
Plaintiff carried the overall onus to establish the facts pleaded by
him that prove
that the
assault in
all
its
elements took place,
he
(notwithstanding
the
admissions in
the plea)
carries
the
duty
to begin
to
adduce
evidence.
[
1
9]
The facts relating to the circumstances
under
which the Plaintiff sustained the injuries were conflicting. The
question whether
a person has
discharged the onus is invariably dependent
upon whether
such
party's version is more probable than the other's, an approach that
was expounded
in
National
Employees
General Insurance Company
Limited
v
Jagers
1
984
(4) SA 437
€ at 440D -
441A
(AND AT (
1
984] All SA 622
€-Ed). However where consideration of
probabilities
fail
to
indicate
where
the
truth
probably
lies, the
court
will
have
recourse
to
an estimate
of relative
credibility, apart from
probabilities.
Therefore the question of whether ultimately
the
Plaintiff discharged
the
onus
resting upon him on a
balance
of
probabilities
is
therefore
ultimately
dependent
on
whether
the testimony
is
truthful
and reliable. (See Coetzee's
comments on
Koster
Ko operstiewe Landboumaatskappy
Bpk
v
Suid
Afrikaanse
Spoorwee"
en Hawens
(
) and
African Eagle
Assurance
Co
Ltd
v Coiner
(supra)
AD
EVIDENCE
[20]
The
Plaintiff
was
the
sole
witness
testifying
on
his
behalf
whilst
the
Defendants presented the evidence of Dr
Rambuda, custodial officers, Luvhengo, Mamailwe, Mathibela and
Makwea.
PLAINTIFF'S CASE
[2
1
]
According
to the
Plaintiff when
he
arrived
at Sinthumule
he was
booked
in with
four
other
inmates in cell
1
5
at the Green Prison. On February 2011at about 9h30 in the morning,
nine officials arrived at his
cell
and assaulted him. He
was
alone in
the cell as the
other inmates had gone to attend a festival at the gymnasium. The
officers demanded to search him and the cell.
Whilst
searching
threw
everything
around,
assaulted
him,
ordered
him
to
take
off
his clothes and touched
his
body. A china dog they brought with them ran around sniffing all over
the
cell and
nothing was
found.
They
have
been to
his
cell two
times
prior to
that
incident. The first time was on 24th December
2010 and there was five of them. They came again three days
thereafter
before
1
2h00
noon and found
him alone
in the cell drinking tea. They wanted to search
the cell again, saying they are looking for dagga.
[22] He identified
Makwea
the
area
manager
to
be one
of the
nine
officials
who
were
in
his cell on 11February 2011.
Amongst
other things that they were doing they told him
to take
off his clothes and
put his pants on his knees. Nemamilwe who
was
also there wearing hand gloves pushed his 2 fingers
into his anus, which
made
him jump.
Makwea
then
hit
him with an open
hand
on
his face.
Everybody who was there then took
part
in
assaulting
him.
He was
told
that they were
assaulting
him for
dagga
even though
no
dagga
was found.
He fell and whilst
on
the ground he was smacked on the face and one of them
jumped
on his private parts. He was
lifted
up
and again smacked on the face.
After
that he was handcuffed with his hands on his back, his legs shackled,
dragged by his legs and thrown down the
staircase.
He rolled
and
fell
on
the
ground.
The
other
inmates
were
screaming
and
calling
the
police officers.
They
grabbed
him
by
his
legs
pulled
him
down
the
stairs
with
his
head
bumping
against the
staircase.
He had injuries on his whole
body
including
his head. His eyes were
swollen
so
he
could
not
see
properly
and
both
his hands
and
upper
arms
were
scratched
and bruised and his manhood
painful.
[23] He was thereafter
posted to segregation (in a single cell). When he
was
being taken
to the cell the head of prison was already there
as well, just standing and watching the others kicking him. He denied
that
he
tried to
burn the cell with a
toilet
paper. He confirmed
being
seen
by
Dr
Rambuda
("Rambuda")
thereafter,
the
prison
doctor
who
completed
the
J88,
recording all the injuries. The doctor
admitted
him for 4 days. The right side of
his
chest, the
left ankle
and also
his
private
parts
were
swollen
with
bruises
around the
right
elbow.
He
was told that
he
could
not consult
a private doctor.
He
subsequently
instituted a
civil action against the
prison
and
Makwea
for
the
assault. Two
prison
officials,
Luvhengo
and Munyai then opened a criminal case against
him of common assault. He was punished in the internal process
and tried
at
the
Magistrate
Court.
In
prison
he was
not given
a
written notification
of
the
disciplinary
hearing therefore
sentenced
without
a
hearing to stay
in
segregation
in
the single cell. He was just called and told that
he is going to segregation for 42 days.
[24]
He went
on
trial
at the
Magistrate Court
on
the
common
assault
charge
of
the
two prison
officials
and
was
discharged.
After
the
discharge
he
was
subjected
to
ill-treatment
every
day. He reported the matter to the
head
of the prison who did nothing about it but kept his head down. The
decision of the Magistrate Court to acquit him has not been
appealed
and no one has indicated an intention to do so.
[25]
Under cross examination
his
testimony was that notwithstanding the Defendant's
allegation
in court that he was attempting
to
burn the cell when he was assaulted, he was
never
charged with the offence or such allegation even mentioned in
the criminal case. He
said he
was not
violent in
prison and has never instigated a fight with
anyone. So there was
no need
for use of force to restrain him.
The prison
officials
just wanted to humiliate him. He
also
could not fight nine people and did not have anything in his body or
carried a weapon.
The evidence of
the
assault
that
took place
outside
the
cell
when he
was lying
on
the
ground
after he fell was available on camera, but the
Defendants have never brought it to court despite their denial of the
assault having
taken place
there.
[26]
He thereafter painted a picture of general mistreatment by the
custodial officers. Alleging that whilst he was at the single
cell in
E Block, that is segregation, without anybody consulting him, he was
fed ARVs tablets. He was kept in hospital for the
treatment of a
Stephen John Syndrome("SJS") without being informed about
it. Only when he enquired from a nurse was he
told that he has the
syndrome. When he complained about the ARV's he was then transferred
without being consulted or told what
is wrong with him. He was told
he was crazy. In August 2012 he was injected with something that made
him numb and sleepy all the
time and smuggled to Barberton Prison
without being consulted, where he was not allowed to communicate with
his lawyer, mother
or anybody. The move was not as a result of his
request. However because he was always sick there they could not do
anything to
him. They ended up moving him to Mantashe. Till today he
does not know where Barberton is. And the poison that he drank from
the
tea also did not sit well with him.
[27]
On the nature and quantum of
damage, he said the search that was done on his anus
gave him a problem because it was the first time
he was subjected to something like that. His other
parts
were
stiff
and
not functioning
normally.
He felt
humiliated
and troubled
due
to the assaults and being constantly
held in segregation.
He
confirmed that in his Particulars of Claim that the insertion of
fingers in his anus is not mentioned. However he was adamant
that he
did tell his attorney about it. He also mentioned it to Dr Rambuda
even though the doctor recorded
on
injuries
on
the
anus
that
n/a
.
He
confirmed
that
he
was
never
stitched
as
mentioned in the particulars,
[28]
During
cross examination he did not deny that he was convicted of assault 11
times
outside
prison
from
2000
until
his
incarceration
in
2011,
once
for
malicious
damage
to
property, possession of
dagga then of the rape
which
led
to his
incarceration in
Sinthurnule.
He pointed out that notwithstanding that fact, as he was
never violent inside prison he
was
never charged with assault, except in respect of the
incident of
1
1February 2011
and was
found not guilty of
the charge at the magistrate court. He refuted the allegations that
when
he
was
assaulted he held a burning roll
of
toilet paper in his hands with which he wanted to
burn
the cell. It
was
his
testimony that since that
incident in
2011to 2012 he
spent all his
time
at
Sinthumule
locked
in
a
single
cell
at
segregation and
all
the
other
charges brought
against
him
whilst he
was there. He never fought with the officials but
they kept on
fighting
with him.
[29] Regarding the stairs
near his cell from which
he
was thrown down, he said there
is
a section
camera
as well
as
a camera
around the
cell.
Notwithstanding,
the
prison
could
not produce the
evidence of the cameras that was sought by the magistrate court. He
cannot read or
write
and
would
ask
fellow
prisoners
to
write
for
him.
He
was indeed
checked
by
a psychiatrist whilst
in hospital.
[30]
Mr
Du
Preeze,
Defendant's
Counsel
subjected the Plaintiff
to
further cross examination for the next three
days. Plaintiff pointed out that
he
has never
been charged
of assaulting any
inmate
and therefore
could
not
be
going about
assaulting
custodial
officials.
Regrettably half of the examination that took place had nothing to do
with the Plaintiff's claim or issues in the pleadings.
He was asked
about charges
he has been
subjected to since
his
incarceration, the number of times he has been punished, his
conviction on rape, wanting to get into detail of that offence
for
which he was serving sentence at the prison, and on seeing a
psychiatrists. Counsel insisted on posing irrelevant questions
even
when he was warned by the
court,
to
desist
from
doing
so
he would
persists
with
his questions
which
resulted
in
a cross examination for all those days that was on everything that
happened at Sinthumule but for the alleged assault that took
place on
11February 2011.
A matter for
which the Defendant
was
being sued
and
the
treatment
Plaintiff
alleged
to
have
endured
under
prison
officials.
Counsel
brought
up the
rape
conviction
time
and
again
for
which
the
Plaintiff
was
serving time
probably
more
than
10 times
on
different
days
without
indicating its
relevance
to
the cause of action of the
Plaintiff or Defendant's defence. The psychiatrists' report was
brought up a
number
of times
as
well.
Plaintiff indicated
that
they
kept on keeping him in the single cell wanting to
destroy
him
mentally
even though
he told them
that
he wanted
to
learn, he wanted
to
go to school.
He was qui
z
zed
on the set up of cells at Sinthumule without
linking
the
questions to the issues that are to be established. The
questions asked were
about
the inmates' daily program and the amenities that were available
which Plaintiff scarcely enjoyed.
[31]
The
relevant and
material
questions about the assault
came
only
after the
3 days of
cross
examination. His evidence in cross On assault, was that he was thrown
down the stairs, so he rolled down to the ground at
the bottom of the
stairs. He was dragged up the stairs with his head hitting the
stairs. His hands were
handcuffed
behind him. He reached the bottom of the stairs and hit the ground
with his knees, and right shoulder. The explanation
of course has
suggestions
of
being
melodramatic.
He
said
at
the
time
he
had already
served
a
42
days sentence
but
he was
put back to
segregation.
He only went out
of segregation
once for one
day after that
incident.
He was taken to the yellow
prison because they would
not
take
him back at Green
Prison. The officials there were fighting with
him. The
next day he was
taken back
to
segregation.
[32] He was then asked
about the times when he felt sick and vomited after
he had tea at E
Block.
Again
for
a
considerable time
of
the
cross
examination,
Counsel
continued
to interrogate the Plaintiff on his previous
transgressions. Only after dragging all those issues for an
unbearable
length of time did
Counsel
ask
Plaintiff about the burning of the
cell. Plaintiff told the court
he does not know what
a
dupa
is. He confirmed that
Luvhengo was
in
charge of his cell
1
5.
The
following was then
put to
Plaintiff
regarding the
Defendants'
version, that after he served the 42 days in a single cell at
segregation, he went back to cell
number
1
6,
his cell upstairs at the Green Prison. Whilst
he was in his cell Luvhengo was sent by Nemamilwe to
ask
him
to come to
Nemamilwe's
office.
Luvhengo
came
up
to the
cell and told
him.
He
told
Luvhengo that
he knows what
it
was about, he has to go back to
E Block. Luvhengo left and whilst he was going down the
stairs he heard a noise back upstairs. He went back up and found that
Plaintiff
had removed all his cellmate's belongings and mattresses
and only his was
left in
the cell. Plaintiff had
a
piece of burning paper in his hand ("a dupa").
Luvhengo
called
code
CERT
1
on
the
radio
meaning that there was
an
emergency,
saying something
like,
"prisoner
attempting
to
burn
the
cell."
A
few
of
the
prison
officials
responded
including, Nemaimela,
Munyai,
Mathebula,
Mahladisa
and
Makwea.
Makwea
ordered
the
plaintiff
to put the burning piece of paper down and he
refused. Makwea then moved forward to him to take away the
burning paper.
Plaintiff
pushed him away. The officers then came to
Mokwea's
assistance.
The
officers
say
Plaintiff
was
very
aggressive
as
a
result
they
used
minimum force to subdue
him.
When they
had him under
control they
put him down on
the floor
face
down and
cuffed
his
hands
behind
his
back. He was taken
not
thrown
down the stairs
but taken
to the
health center
and thereafter
Plaintiff was taken
to
Dr
Rambuda
for
examination.
It
was further put to him that the stairs are made of steel and the
bottom of the stairs
is
a
concrete.
Counsel
said
the
prison
officials
are
going
to
refute
that
fingers
were
inserted
in his anus.
It was further
put
to
him that
officials
will
come and tell the
court
that they take an injured inmate they
suspect
of
having something
in his body,
to
health care to be examined
by the nurses. They would not do it themselves.
Further that plaintiff assaulted Luvhengo on the
cheek and tore his t-shirt. He also tore a pocket of one of the
officials' pants.
[33]
Plaintiff
replied
that
the
pants
may
have
been
torn
when
he
was
trying
to
prevent
being
hurt.
When
it
was
put
to
Plaintiff
that
Luvhengo
was
later
examined by
Rambuda
outside prison as the officials had medical aid and therefore not
allowed to be examined
by a
doctor at his private practice,
Plaintiff
denied that it is the case and stated that
Rambuda's evidence
in
the magistrate
court was that
they can also be examined
by a prison doctor.
It was put to him that Rambuda also sent the
three to the blue room and they denied assaulting him or that
he went
to
hospital. Also
that
Munyai and
Mathebula
in
the
meantime
went
to
the police station to open a case of assault against him. Plaintiff
agreed and stated that the officers told the court
that
after
the assault they took
him to
segregation cell and not to
hospital.
He repeatedly denied being an aggressive person. He explained
that the assaults
that
took
place before his
incarceration happened between 2000 - 2011in the context of
their village lifestyle. Since they drank too
much,
fights would break out
afterwards.
[34] Plaintiff also
indicated that his left testicles were still not working. He agreed
that he was sent to the Urologist who examined
him and prescribed a
tablet called Bactrim for him, a broad based anti-biotic that caused
the Steven Johnson Syndrome ("SJS")
that he suffered from
later. Subsequently blood was drawn from him and sent to the lab but
nobody told him the results until the
nurse told him that he has the
SJS. Rambuda sent him to the Urologist on 11February 2011because he
was complaining about the assault
on his testicles. It took them from
February 2011 to 2012 May to send him to the Urologist. During that
period he kept asking to
see the specialist and they kept telling him
that those doctors are scarce. He wrote a letter to the department
asking that his
attorney be given access to his medical records,
after Rambuda asked him if he gives permission for attorneys and
private people
to have access to his medical records. It was put to
him that Rambuda found nothing wrong with his testicles on 11
February but
sent him to the Urologist for an old complaint.
Plaintiff disagreed saying he entered the facility with no such a
problem. Dr Rambuda
referred him to an Urologist because of his
complain about the assault on his private parts. He was under the
specialist's treatment
from 20 May 2012 for 7 days. When he left the
hospital in 2012 he was now imprisoned at the blue prison. On the 4th
day Counsel
concluded his cross-examination.
[35]
On
re-examination
Plaintiff
confirmed that whilst
at
E-Block he was taken to hospital after drinking tea. His attorney and
a psychologist came to see him and nobody at the hospital
could
give
them
information
regarding
his sickness.
He
confirmed
that
from
March
to
July 2011there
were
no
transgressions recorded
against
him.
He
indicated
that
all
the
months
that he did not have transgressions
he was at segregation at E-Block where
he spent most of the period of his incarceration,
at Sinthumule.
[36] The
next witness, to testify
for
the
plaintiff was
Makananisa
Rabelani
("Rabelani"), a fellow inmate at Kutama Prison at the time.
Plaintiff and Rabelani grew up
together
in a village
called Njelele.
Rabelani was serving a sentence of
1
5
years at Sinthumule for armed robbery. He was there from
2006
until
2012. According to
him he
heard of the assault on Plaintiff on
1
1
February
2011
because
all inmates were
aware
of
the
incident.
He was
also
told
by
the Plaintiff whose
injuries
were visible. So the officials will
not
be telling the truth
if
they testify that Plaintiff was never assaulted. He too was once
assaulted
by the prison
officials. He was hit with anything that was
nearby.
He
had gone to tell them that
he
was sick and wanted
to go to
the health center. After the assault he got a J88 and took it to the
manager of the prison Mr Ndembedi.
He
informed
Ndembedi that
he wanted
to
open a case.
He was warned
that opening a
case
would
cause
him
problems
and
his
treatment
would
turn
for
the
worst.
He feared for his safety. He did not personally
see the assault on the Plaintiff as he stayed in Blue prison, 500
meters away from
where
Plaintiff
was, a stone's throw away. He therefore could not comment on the
version of the Defendant because he was not there.He
had no idea what
a Dupa is and denied that each prisoner on their first day in prison
gets a booklet or is shown a video
in
their
own
language
about
the
prison
rules.
Furthermore
that
his
rehabilitation
in prison had
nothing to do with the officials who
were
busy assaulting them.
[37] That was the case for
the Plaintiff.
AD
DEFEN
DANT
[38]
Dr
Ramudzuli Rambuda (herein before and after referred to as ("Rambuda")
followed, with
his testimony
on behalf
of
the
Defendants
which
was
that
.
His testimony
was that
he saw the Plaintiff on 11February 2011,
at about 09h45 who alleged to have been assaulted
by
nine
prison
officials.
He had
dust
and
dirty marks all over his pants and
shirt and
the
following injuries that he recorded on the J88 Form: a swollen right
cheek (
Scm by
cm), lower and upper lip, right side of the chest
and left ankle.
Both eyes
were
reddish and swollen
and bruises
around
the
right
elbow.
His
conclusion
was
that Plaintiff
had
suffered
soft
tissue injuries
and
his other
systems
normal. He prescribed
Voltaren
tablets
of
which 25
mm was applied intravenously and recommended
x-rays for his ankle and elbow. He referred Plaintiff to
an
Urologist
for
a
previous
complaint
he
had
about
his
testicles.
The
injuries
were
all moderate.
[39]
On
9
July
2011
he
certified Plaintiff
to
be
fit to
continue with the criminal trial following his
admission at
the
health
center suffering
from
the
SJS ("Stephen Johnson Syndrome"),
a
skin
reaction
that
looks
like
burn
marks
caused
by
"Bactrim"
an
antibiotic Plaintiff was taking
prescribed
by
the Urologist that comes about after
it
has been ingested. Normally it
is
given
to
offenders to prevent them from getting opportunistic
infections. Plaintiff was
clearly allergic to it. He however was clinically
stable at the time.
He had
called the Plaintiff and asked him if he was fine and he said he was
fine, so he wrote the report that he
can
be
discharged
from hospital.
He
heard
about
the Plaintiff
drinking
tea
that
was poisoned during the civil court case,
however, when Plaintiff arrived at the hospital he had a skin
reaction that
had nothing to
do with the
poisoned tea.
[40]
He
confirmed
that
he
ran
a
private practice and
working
shifts at
the prison in
accordance with the terms of his contract
us
he worked shifts at the hospital between 8-2pm or 2-Spm. His work did
not include treating the prison staff unless on an emergency.
They
will get stabilized
at the
prison hospital and then be sent
off to wherever
they
would want
to go to consult.
They have their own medical aid and a choice to choose whom to
consult. He saw Luvhengo
on
11
February
2011 at
1
5h35
but at
his
rooms.
Luvhengo
alleged to
have
been assaulted by an inmate who also tore his t-
shirt. The clinical findings
he
noted on
Luvhengo was a swollen
left chin and cheek
plus minus 8cm by 4cm
injuries that
he
recorded as soft tissue
injuries.
He confirmed
that
he then testified
on
behalf
of
the
Plaintiff
in the common assault case brought by Luvhengo
against the plaintiff, only on information that related to the
Plaintiff's injuries
and was not asked about Luvhengo's injuries.
[41] Commenting
on Plaintiff's complaint
about the anus search,
he
said
in a case where
an inmate is suspected
of
hiding something like drugs inside his body, the prison officials
will contact
the
nurse
in
charge
of the
prison, who
will
then
write
a
report.
The inmate will then be sent to them for
a
diagnostic
x-ray
at the
hospital.
If there
is
nothing or something they will
then
furnish
a
report
that
says
so.
If there
is
something
the
inmate
is
kept
in hospital. He will be
monitored with cameras that
are
inside the
hospital cells
even when going to the toilet.
After
three
days
the
drugs
or whatever it is, may
come
out, if it does
not
it may turn into gangrene whereof they
might have to refer the inmate to a surgeon for
an operation.
He confirmed
that
there
are cells
in
hospital where
an inmate
is put on
high
rate watch
where you can see
what they are doing even from outside the cell.
[42] He pointed out that as part of their work they do
rounds at segregation that is E Block, every day. So if an inmate has
a complaint
he has to register it during that
t
ime.
At
the time he saw the Plaintiff,
he did mention
that
he
was assaulted by
the nine prison
officials
and
wants
to
open
a
case
that
i
s
why
he
completed the
J
88. However if he was
assaulted as he had testified his injuries would have been worse. The
injuries he saw were tantamount to the
force required to subdue him.
He would have had cuts not the moderate injuries if he was pushed and
rolled down the stairs that
slants and turn with a concrete landing.
[43]
Under
cross
examination,
his
evidence
was
that
the
injury
on
the
private
parts
also
falls under soft tissue injuries. He
confirmed
that he
suggested x-rays to
exclude the possibility
of
the
injuries being more than
what
he has assessed
and i
f
the results indicated
any
further
management
he would
have
written that down. The x-rays are done as a matter of
course
if
prisoners
allege
that they
have
been assaulted, to avoid any
further
complains
as
they
are
diagnostic.
He
was used
to
seeing
the
Plaintiff
and
already
had
his
medical history. He agreed that
a
normal
person reading the J88 would
believe that
the
injuries
and
complains
referred
to
therein
are
recent
if
date
of
incident
not
noted.
He said
in
n
ormal
situations
he writes
the
complaint as
reported
by the
patient
but in this
case
he
left out the
complaint
about
being
kicked on the
genitals.
He confirmed
that
he
completed
the J88
for
Luvhengo who
came to
him on the same afternoon and denied there was
any conflict
since
he
saw
the patients
at
different
times.
He was not aware that the prison officials and
Department were going to open a c
ase.
[44]
The incident report indicated that there was a
form he had
to write as the
doctor
before
the
prison
officials
can
use
force.
The
form
is
completed
by
the
doctor
as
an
approval
that reasonable
force can be used.
And at
the time
when
the
form came
to him it
was
an
application
that
reasonable
force
is
going
to
be
used
that
i
s
how
he
saw
it.
He
did
not
know
that
the
prison
officials
were
going
to
open
a
case
outside
and
that
there
was
nine
of
them.
He
only
saw
Luvhengo
and
not
the
nine
which
would
have
been
a
conflict
then.
They
have
their
own
doctors
and
can
see
whoever
they
want.
He
received
the
form,
the
application
to
use
reasonable
force at about 9h45 after
the
a
ssault.
Changing
his
stance he
then
said
they
usually
go to the director of Correctional Services before they come to him
to apply to use
the
reasonable
force.
[45]
He
also admitted that he
was told that Luvhengo was going
to open a case as he
was
assaulted
by an inmate, that
i
s
why
he
completed a J88.
When
asked why Luvhengo consulted him & waited till in
the afternoon. He said maybe because other
people also wait until he is back
at
the surgery or he might have
been
given
emergency
treatment at the prison, stabilized by the
nurses. Each prison has got a clinic that is staffed with 2 nurses to
attend to emergencies
or stabilizing patients before they
are sent to a hospital where
the doctor
is.
I
t
would have been unethical for him to tre
a
t
Luvhengo at the
hospital
and happens only if it is an emergency. He could not remember if
Luvhengo also consulted him in prison in the morning or
prior to him
coming to see him in
the
e
vening.
[46] He confirmed that at the criminal trial he gave
evidence called by the Plaintiff. His
evidence
which was on the nature and seriousness of the Plaintiff's injuries
resulted in his
acquittal.
Plaintiff
had more injuries as he was assaulted by a lot of p
eople.
He noted that
his bias will be on both ways
whether
he is testifying for
the Plaintiff or for the Defendant,
since
he saw both the Plaintiff and Luvhengo. He was not forced to complete
Luvhengo's
J88.
He
said the use of
force
on the Plaintiff was authorized and must have been
also
authorized by the Correctional Services. He
could
not comment on whether it
was
actually
done,
but
was
aware
that
if
the
prison
officials
will
be
using
force
they
will
bring the information to
him as a doctor and he will look at the medical file of an inmate if
there are any
records which
contra
indicates that
he would
comment
on that. He was
not aware if
the doctor
has got
to
be
there
when
it i
s
applied.
He agreed that
a video
footage
of the incident should be
available. He
said
a planned use
of force will
only be
authorized in
writing to be supervised
by
a suited director or correctional
center
deputy
director
and recorded on a video camera. Only when planned force is to be
applied not on
an incident
that
need immediate reaction.
[47] He agreed that a man
who had his pants down could not have posed any danger.
He
could not comment on
the
alleged excessiveness of the force used
in
the circumstances
by the
prison officials. He agreed however that force i
s
to be used as a last resort and was
aware that
every time there
is
an incident an investigation must
f
ollow.
However
he
was
not aware of Mabuza's investigation of
Plaintiff's assault.
He was referred to
Mathebula's
comments
in the
Disciplinary
Hearing Findings that
Plaintiff
was never
assaulted by anybody
regardless
of his violent
b
ehavior,
but
Luvhengo
and
Monyai
were taken to the doctor for
medical treatment
due
to assault." and put to him that he saw the Plaintiff who was
assaulted, and yet Mathebula, the manager in
the
yellow prison said Plaintiff was never assaulted. He
(Rambadu) said that the Plaintiff told him
that he was assaulted by the prison officials and
he is only commenting
on what
he
saw that day.
[48]
With
regard to the tablet
that
is said to have caused Plaintiff to
be sick
it
was
put to Rambadu that the
tablet
was
given to
Plaintiff
after
he had been sick from
the tea. He said
Plaintiff
visited
the
health center
and
was
seen
by
him.
He examined
him doing
a
general
checkup and blood test. He was admitted in the facility
but does not remember the date and the files were
taken
back to
DCS. He could not clearly
say
what
the
result of the
blood
test was, stating
that it
gives a clinical picture,
a
clinical syndrome. The Stephen Johnson Syndrome was
explained
to
the
Plaintiff.
It presents
itself
as some
redness
because
it
manifests
itself internally,
the
results did not show
anything except the drug that he spoke about. The
blood
test
were
done
as
a
matter
of
cause.
He
said
he was
aware
that
Bactrim
causes
SJS
and
confirmed
that
the
Plaintiff
got
his
first Bactrim
from
the
specialist
(Urologist).
He
said
it
does
not
mean that
one
would
immediately
react
at
that
time.
Sometimes it
can
be
in
a
year
or 3 months
after
treatment, it
depends
on
the
immune system at the time. On admission
Plaintiff
had no allergy
that
was
noted
on examination
and
i
f
he
mentioned any, it would
be
indicated
in the file.
He will
then
not get that
anymore.
He was
the
one treating the
Plaintiff
after
he
allegedly
drank
the
poisoned
tea
and
was
admitted
in
hospital
for
3
months or
longer
he could
not
remember
until August.
He has treated the Plaintiff for
some
time.
The bloodstream did
not
show poisoning. He
could
not remember when he
was
transferred. He
was
not
involved
in the
transfer
and
what he
could
remember
was
that
Plaintiff went
back
to segregation.
He was
thereafter
transferred to
another
facility.
[49]
He
did not know anything about the Plaintiff's removal to Barberton
prison or play any role
in
the
plaintiff's
transfer
as
it
lies
with
Correctional
Services.
He
however
remembers that
he went
to
segregation
and
spoke
to the
Plaintiff
since
he
had a
lot of
cases
against
him
for
fighting with prison
officials verbally
or
otherwise,
he
also
was
concerned
about
his
education
and rehabilitation.
He
advised
Plaintiff to
change
if
he feels
not happy to
stay
in
that
prison. It
was
put
to him
that Plaintiff said he
was transferred
because
he was
questioning the
reason why
he
was
put on the
treatment
of
ARV'S.
He
said
he was
aware of the
Plaintiff
being put on ARV's,
however
at the
prison
clinic there
is a
nurse tasked with
doing
tests
but
only
by
consent.
If
Aids
i
s
discovered
the
treatment
will
be
administered
also only by consent, nobody is forced. Usually
an inmate will ask to be tested or
if
they
see that
an
inmate
might
be
sick they
will
advise
the
inmate to test.
He
did
not know
anything about Plaintiff' or of inmates forced to
take tests or treatment.
It
was
put to him that
Plaintiff said
he
does
not know of any test
and the
reason
why
he was given ARV's,
but blood was drawn
from
him
anyway
and
no
results given
to
him. When
he
started
complaining
about being
given
the
ARV's
without
any
tests,
he
says
he
was
then
injected
with
something, kidnapped
and
found
himself
in Barberton.
His
reply was that
Plaintiff
has a
right
to
refuse treatment and could
not remember of any instance where inmates were forced to take ARV's.
[5O]
He confirmed that he is not supposed to make
assumptions on the nature and extent
of
injuries
that
should
have
been
sustained
and
that
he
only
writes
what
the
inmates
t
ell him to be the cause of their
injuries. He agreed that the court is not interested in what he is
saying on how the patient was
injured. It was put to him that the
Plaintiff told him about the anal penetration and he neglected his
duty, he did not examine
him or record that in the J88 and asked if
he was told by his superiors not to put it on the Form. He denied
that saying he cannot
sacrifice his profession for the contract that
he has with the prison and does not remember of a situation where he
was told what
to do or not do. He indicated that Luvhengo and Munyai
came to him as private patients and used their own medical aid not
sent
by the prison. He had a duty to see them once they were at his
surgery. Nemamilwe was also his patient they came together to the

surgery that day. He denied that by virtue of his contract with
Correctional Services he put himself in a conflicting position
by
treating the prison officials who each was claiming to have been
assaulted by the other.
[5
1
]
Finally,
on
transfer of an
inmate
he
added
that
a
doctor will play
a
role
i
f
the
transfer
of
the
inmate
ls
for medical
reasons,
for
example if
the
treatment he
requires
i
s
not
available
at
that
facility,
otherwise
i
t
is
the
Correctional
Services
that
decide
on
the
transfer.
[52] On re-examination he reiterated that he testified
for the Plaintiff in the criminal case with whom he had a good
doctor- patient
relationship. So Plaintiff could ask him anything
even when there are results he does not understand he could ask him.
He does
not remember the Plaintiff refusing to be examined by him.
The 2nd Defendant's disciplinary hearing record on page 55 notes that

the Plaintiff refused to give a statement or to be interviewed by the
investigating officer.
The record also on page 57 reads that
"there is no relevant evidence to
sustain that
injuries outlined
on
the
J88 were due
to
the fact that the
offender Takalani Neluheni was assaulted
by officers or
staff
members."
He confirmed that the J88
referred to was the one he completed noting the injuries. He says
they were concerned about his rehabilitation
and education, that he
was spending too much time at segregation. They were not happy about
it that he was there for some time.
He was therefore referred to a
Psychologist for evaluation. As far as he knows the Plaintiff was not
transferred for medical reasons.
[53] Mr Makwea, ("Makwea"),
the next witness, confirmed having
joined
the private prison
services
from
Correctional
Service
where he
was employed
from
1
990-
2005. He explained
that
Sinthumule
is
a
maximum
prison that
keeps
high security
inmates
housed
in three sectional
prisons, the Green,
Yellow
and Blue Section. They also have E-Block with single cells
where
they
keep
prisoners
with
behavioural
problems
in
segregation,
either
because they fight with inmates or custodial
officials or guilty of unbecoming conduct.
Mr
Van Rensburg is Chief of Security.
He
was in charge of the Green Prison seeing to it that inmates follow
a
daily
structural
program
and
look after
their
general
wellbeing.
He also attended
to complains and s
a
w
to it that nobody was oppressed. Each section has
1
2
unit managers and divided
into
Blocks. The
Plaintiff
lived
in
Block
K
in the
KO
pad
whose
unit
manager
was Nemamilwe. Mr Luvhengo worked within the KO
pad as the custodial officer. A
100
prisoners were
kept in each
pad. Each pad has two floors, the ground with
1
2
cells and the
ist floor with
13 cells. Before one reaches the stairs there is a landing called a
bay before descending the stairs that are about 4
meters high and in a slanting position. The landing is made of
cement, supported
by slanting poles.
[54]
He
said
Kutama
Sinthumule
inmates
come from
correctional
services.
He
confirmed that during
induction
there
are
medical
people.
If
blood
is
drawn
it
will be
done at
the
request/consent of
an
inmate
and
not
as
part
of
the
induction.
A
prisoner
who
has
been convicted of infringement
in prison may be sentenced to a suspended
sentence
or detention at
E-Block.
He
also
has
a
right
of
appeal.
A
prisoner
can
also
commit
infringements
even
when
he is at
E-Block. The
Plaintiff was taken away from the Green Block to go and serve his
sentence, he
never came back,
but
went to the Yellow Block
and he never had
dealings
with him after that as he
was
under a different area manager. If
there
is suspicion that an inmate has
swallowed
a drug
or put
it
in
his
backside,
he
is
taken
to
hospital.
The
custodial
officer
will not deal with him anymore. The custodial officers did not
carry weapons in
prison
but
a two way radio, keys and
report. The restraining equipment are the handcuffs according to the
manual. Security equipment is
the
baton and no
firearms. And
only an officer
i
ssued with a
baton
can
carry
and
use
it.
There i
s
a
camera
in
the day room
where inmates
have
their meals
that
serves as the eye to the officer guarding the
1
00
inmates in the pod and a controller. With the aid of the controller
the officer is able to see what transpires from one day room
to
another. There are no cameras inside the cells and the one in the
daily room cannot record what
is
happening
there.
Each
cell
door
is
operated
by
an
operating
officer.
There
are
no
keys. There is an
intercom
to
the cells
that is
vital
because it
can be used if
an inmate is not feeling well
at
night
to communicate
with the
officer to
notify
him of
his
situation.
It is activated
manually with a finger
or
thumbprint
it will then flash
a
red light to alert the
controller.
If there is
a problem
the
controller will call
the area
manager in
charge and
on
shift
through the two
way radio
who
will
then
inform
the hospital
section
of
the
sick person
and
his whereabouts. The
hospital
personnel will go there to attend to the sick
person. The
unit
manager will also be there. In the event the cell needs to be opened
for the inmate to be taken to hospital they will request
a backup of
five other
members before
they open the cell.
The
hospital personnel
will
then
take
over.
[55]
On
a
normal
day
the
controller
opens
the
doors
at
6h00
all
at
the
same
time
after
confirming that
the
number
of
the
inmates
is
1
00.
He confirmed that
there
are
search
dogs
that
are
used
to
search
the
cells.
There
are
members
who
are
trained
to
use
dogs to sniff for
dagga.
Anytime the
dog
handler
can
lead the
dog
where
he would like the
sniffing to
be
carried
out. They
may
come
on their own or
when
called
by
the
unit manager.
I
f
the
search
is to
be conducted
on
the
body of an
inmate,
i
t
would
not
be
in
view
of
other inmates.
The
search
would be
i
n the
presence
of two officials,
one
acting
as
a
witness. He
denied
that
he
ever
saw
Nemamilwe
searching somebody
like the
Plaintiff
has
described, telling them
to
bend over
and
inserting a f
inger.
As to who will be transferred the Department of Correctional Services
is in control of that and the
list
of inmates supplied
by them
will be exchanged with those from Matachi. The head of the
prison does
not
have a say as to who
is
transferred
to where.
[56] On the use of force on
the Plaintiff, he
testified
that on 11
February 201
1
,
Nemamilwe, Munyai,Luvhengo, Mathladisa, Mathebula and
him were all certified to carry
out use of force
on offenders.
Counsel then put to his own
witness that what
happened
to
the
Plaintiff
on 11
February 2011 was an unplanned use of force, to
which he agreed. He
identified the form that they
completed before they go off duty after the use of force signed
by the unit manager Mr Nemamilwe, Van Rensburg, and by
the DCS controller. The form attaches the incident report by the unit
manager.
Counsel brought his attention to certain
comments made by the head of security that
Plaintiff will formally
be
charged and that the
Plaintiff
seem to be emotionally unstable so he was to be placed on high risk
treatment. He also mentioned
a
J88 completed by
the
doctor.
The witness was also
referred
to an
affidavit by somebody else to which the witness
has confirmed its contents to be true as far as they refer to him
that was filed
in
terms of
Rule 6 (11) for the dismissal of the Applicant's action
from which Counsel read to him that "Due to
behavioral problems which led
to
disciplinary
hearings the
officers
of the first
Respondent
were
of the opinion that
the
change
in the
environment might
assist
the
Plaintiff
and
requested
the
Department
of
Correctional
Services
to
transfer
the
Plaintiff
to
another
prison.
The
Plaintiff
was
transferred
to
the
Thohoyandou
prison
("Matachi") on 29 October 2012. This was an attempt to
explain the
transfer
of the Plaintiff that
is
alleged to have taken
place
without
his concern.
Makwea
confirmed
that
all
the
records
including
Plaintiff's
medical
records
were
transferred
to Thohoyandou as the Plaintiff is no longer in
the care of the Defendant, but of Correctional Service.
And
he
might
have
been transferred
from
there
to
another
prison
without
the
knowledge of the l51 Defendant because the
department
does not have to
inform the first Defendant.
He
denied any knowledge about the Plaintiff's
kidnap
from
Sinthumule Kuta
ma
to
Barberton
P
rison.
He
said according
to
them he
went
to
Thohoyandou.
[57] He confirmed that a
tissue paper rolled into knots is called a dupa in prison and used
to
light
a
cigarette.
The
inmates
smuggle
it
into the
cells every
second
fortnight
and
light
it from the fluorescent
light
in their
cell.
[58] According to
him on 11
February
2011
he was on duty
at his post in Green Prison
where
Plaintiff's cell is when he heard
Nemamilwe on
a two way radio
sending
a CERT 1 c
all
asking
for backup at K
O.
CERT is a code
for
"assault" and 1means "backup come and help."
The call is heard by the entire prison. He
got out of the office and
walked
to KO. He
walked
up
the stairs
to
the
cell
and
found the
Plaintiff and
L
uvhengo.
He
was
given a report that
Plaintiff
had
taken items belonging to
other cellmates out and only his remained in the cell. Luvhengo
told him
that
the Plaintiff
was
in
possession
of
a
burning
tissue and
intended
to
set the cell alight with it. The Plaintiff was
holding a tissue with
smoke
emanating from i
t.
His
first words to Plaintiff
was that he must drop that thing and extinguish it, Plaintiff
refused.
He moved
forward to him
wanting
to take the burning
tissue
out of his hand. Plaintiff pushed him
back.
At that
stage
Mathladisa, Mathebula
and
Munyai
were already there.
They
all
then
charged
forward to him taking away the burning paper out of his hand and
pinned him on
the floor, face down. He was
handcuffed with his hands behind his back and taken out of
his
p
od. They did not
use leg irons. They are used only if somebody
is
taken to court or
hospital.
The
witness
was
then
asked
if
the
Plaintiff
was
calm.
He
said
Plaintiff
was
aggressive and
doing
movements
with
his
hands
pulling
and
pushing.
He
was
asked
if
the
others
did
help
to
bring the Plaintiff under control and
i
f any of them were injured.
Then
only then did he
allege that Luvhengo and
Munyai
were
injured and the uniform of Mathebula torn. He was
asked if all this happened during the process
when the plaintiff was being
subdued
and he
agreed. He said
there was no other way to subdue the Plaintiff as when he
talked to him he did not pay
attention to what he
was
saying.
After he
was subdued he
was
taken
to
the
clinic
at the Green
P
rison. On arrival there he
was still aggressive and was referred to the
Health care.
He
did
not see any injuries on the Plaintiff and does not know
i
f
he had
i
njuries
as they
took him
to health c
are.
When the witness was reminded of Rambuda's finding he now said he
neither agrees or disputes that but
he did not
see injuries on the Plain
tiff. He also was
not
disputing
that Rambadu found these injuries. Plaintiff was accompanied by
Nemamilwe to
the Hospital as
his unit manager. According to him
there
was no lesser method
of
getting the
Plaintiff
subdued.
Plaintiff's
cellmates were out of the cell
when
this h
appened. He cannot recall if there was
a video recording of the incident. It may not have been
recorded
since
it is something that happened fast and unplanned. The incident
happened inside the cell and there are no video footage in
the cells.
When asked what could have been the reason for
the
aggressive
behavior
of
the
Plaintiff
on
that
day,
he
said
he
heard
from
the Unit Manager that the custodial officer, sent
by him, requested the Plaintiff to report to
his office. A Disciplinary Hearing was then
convened but he was not involved in it. His duty when he got involved
was
to
see
to it
that
Nemamilwe
is not oppressed and assaulted and
that
the Plaintiff
i
s
treated
with
dignity and not
only him but every prisoner under his
c
are.
He
denied
that
the
Plaintiff's
ankles
were
cuffed, that
he
was
pulled
up
by
his
legs,
dragged, pushed
down
the
stairs,
and
rolled
down
the
stairs
until
he
landed
on
the
ground
floor. According
to
him
the
Plaintiff
was
taken
to
the
doctor.
He
said
due
to
the
Plaintiff
being aggressive
he was
taken
straight
to
the
clinic
and
then
to
the
hospital
by
Nemamilwe.
He
returned to the office at that stage.
[59] He
was referred to part of the investigation report
on the incident that read "On Friday 11
February the
Plaintiff
assaulted
officers Munyai,
Luvhengo and further
threatened
to burn the cells at Green Prison, K
Block
D, cell
1
6, hence this
investigation."
He
confirmed that
he and the
others except for
Mathebula
were
interviewed and the
conclusion
in
the
report was also
as
read
out
by Counsel
that
"After
having reviewed the
aforesaid
incident
the
investigation concluded that the whole scene or scenario was very
circumstantial that needed a very
drastic
intervention
in
which
the staff
members
responded
in a
responsible
manner. The
investigation
further concluded
as
read
out
that "injuries
sustained
by
Takalani
was
also
circumstantial
and
no
person,
staff
members to
be interrogated
or
held
liable
on that, as
the
situation
out
of hand.
There
is no relevant evidence to substantiate
the
i
njuries
outlined
in the
J88
due
to
the
fact
that
Takalani Neluheni was
assaulted by
officers.
Also
read was that "The allegations that the above staff members
assaulted
the
offender Takalani
Neluheni has
no
substance
and
the
allegations
are therefore
dismissed
based
on
the findings and conclusions stated above.
Van
Rensburg, the Deputy Director of Operations
Mr
Wagenaar
and the
prison
director
Mr Ncongwane
all
made
remarks
in the
report.
[60]
Makwea's testimony under cross examination was that he only knew the
Plaintiff as one of the inmates confined in the Green
Prison for
which he was in charge, nothing more. However he confirmed that
everything that happened got reported to him. He was
referred to the
comments made by Van Rensburg in the investigation report that
“Offender
Neluheni does
not
cooperate
with staff
and wants to do everything his
own
way."
Asked
why would
Van
Rensburg
know
that about
the
Plaintiff
when he
as
the
manager
knew nothing
about Plaintiff?
He
replied
that
if
an
offender has behavioral problems he
may
be referred
to the relevant section and should there be an incident report to be
compiled
the
said
incident
report
should be directed to the Chief of
Security for all
prisoners (
Wagenaar).
On
what is
said
on
Page
60
attributed
to
Wagenaar
that"
this
i
s
a
long
troublemaker
.
"
He
said
he
could not
comment on
that.
He confirmed that he
was
interviewed by Mabasa who conducted the investigation to prove the
allegations that led to the injuries
of
the
staff
members. He
was referred
to
his
statement to Mabasa on how Plaintiff was brought
down.
He confirmed that the use of force was
activated to bring
the Plaintiff d
own.
Also that smoke was coming from the burning toilet
roll that was taken away from him and
extinguished, after
he was
subdued.
If blown into
the sponge of the mattress
it
could have set the prison alight. He was made aware that
the tissue does not form part of the exhibits.
He
indicated that the tissue was however shown to Plaintiff at the
Disciplinary hearing. He argued that the exhibit is shown if
a
person denies that he used it, however it
does form part of the evidence. He did not
answer to the allegations put to him that clearly
from the conclusion
on the
report
on page 52, there was no formal
hearing
that
was held
but
statements
were
obtained
from the witnesses.
He
said as far as he is aware,
Plaintiff
refused to attend the hearing or make a
statement, contradicting himself.
He was
referred
to page 55 which
reads: "the said offender refused to give a statement or
be interviewed by the investigating
officers".
[6
1
]
He said
he
knew
that
the
Plaintiff
came
back from
E-Block
and
on arrival
at
his cell Luvhengo
approached
him to
inform
him that
Nemamilwe
wants
him
to
come
to
his
office. When
he
went
to
the
cell
he was
reacting
to
a
call
by
his juniors.
They
informed
him
that Plaintiff was refusing to hand over the
tissue he was
holding in his
hand. The distance between his office and the cell is about +-800
meter away but
h
e
made
i
t because
once
i
t is
said “C
ERT 1”
one does not
stroll
to
there.
He
arrived
whilst Nemamilwe
was
speaking
to the
Plaintiff telling him to remove the
tissue.
They took the tissue out of his
hands because if it had dropped on the floor it
would have created a hole in the plastic. He confirmed that
he
ran
800
meters
whilst
the
Plaintiff
was
carrying the
burning
tissue
in his
hands
and
when
he
arrived
the
tissue
was
still
burning.
He denied that
they
were
there
to
unlawfully
search the
Plaintiff.
For the tissue
to be taken
out
of the
Plaintiffs hands it was
a
joint effort
of
all them,
they
applied
force
as
the
last
resort.
They
firstly
talked
to
him
requesting
him and then applied force to get the
tissue
from
him to
stop
him from
endangering
his life and that
of
his
fellow
inmates.
He
denied
that
force
was
used
with
the intention
to injure or
degrade
the
Plaintiff.
[62]
In
respect of the force that was used. He said they all advanced forward
to Plaintiff whilst
he went
for the
hand
and tried to take the tissue away,
Plaintiff
pushed him
back.
Because of that he knew from his 27 years' experience
that if that happened, he is to single
the
offender out and respond discriminately
in
accordance with his action. After taking the
tissue
they pinned him down, it
was
after Plaintiff had
assaulted
Luvhengo and Munyai that
they took him and pinned
him on the floor. They realized his hand was raised up when he
tore Mathebula's uniform. The raised arm was also
cuffed.
They were
not scared that
he
might
have had
something that
he
could have hurt them wit
h. After they
had
subdued
him he
could
not see any
visible
i
njuries,
which was also noted by
the
prison
director.
However
after
such
an incident
a
prisoner
is
taken
to
hospital to
check
on the
injuries.
He
said
he did not see any visible
i
njuries
on the two officers
even though
they were assaulted
i
n his presence.
He
denied that
Plaintiff was
assaulted with fists
and
stepped
on his
private
parts.
He confirmed that
the
Plaintiff
was
taken to hospital
and
the
J88
would
reveal
the
injuries.
It was
put
to
him
that
he
was
called by Nemamilwe
indicating K4 assault
and a criminal case
was
opened
against the Plaintiff for assaulting the
two officers. He said he does not know about that he never
attended
court
proceedings. Also was not aware of the
outcome that the Plaintiff was discharged or that the police not
believed by
the court
that they were assaulted.
[63]
According
to
him what
is
minimum
or
maximum
force
will
depend
on the
injuries
because sometimes with application of minimum force a person turns
out to sustain more
injuries and maximum force
resulting in less or no injuries. It
was
put to him that on page 46
it is said the degree
of force to be used would be determined by the situation and it
should
be the minimum necessary under the
circumstances. In
this matter
the situation was of a man carrying a tissue
in
his hand. They
could have
waited
for
the tissue
to
extinguish
and then get
control if their
duty was to
protect human life.
[64] On sniffer dogs he stated that an official may on
his own search the inmates or he can be specially requested to do so.
And
aware that the search is to be in accordance with the
Correctional Service Act. Even though all searches must be authorized
by
the head of prison, routine or surprise searches are also
authorized. He said as a prison manager he has got delegated powers
to
deal with the searches. If it is without permission from the head
of prison he still had to be notified about the search as the
prison
manager. He did not see any injuries on the Plaintiff after they
subdued him. His Counsel intervened to say that his evidence
was that
he does not dispute that Dr Rambuda found those injuries on the
Plaintiff. It was put to him that on the same day that
he applied
minimum force the Plaintiff was examined by the doctor and found to
have the injuries noted on the J88 and asked if
he knows then what
caused the injuries. He replied that he did not see the injuries. It
was put to him that the doctor noted that
Plaintiff had sustained
right cheek upper lips and right side of chest swollen, and so on. He
replied that is why he is saying
he cannot dispute that if that is
what the doctor found. He could not answer regarding the lack of
investigation about Plaintiff's
attempt to commit arson or trying to
burn the cell although this was their reason to manhandle the
Plaintiff. He said Mabasa, the
investigator, is on a level of a
supervisor but his junior and not in his line of work. He does not
agree with the contents of
the First Defendant's Plea that the
Plaintiff was serving a life sentence for rape or murder.
H
e
was
asked
about
the
profiling of the
Plaintiff
done
by Mabasa the
i
nvestigating officer
on
p 58
of
the
investigation report
that Plaintiff
i
s
one
of
the
dangerous
offenders whom under any
circumstances
can
kill or
attack
the
officer
to
a
regretful
situation
hence
the said
i
ncident" and
if that
i
s the reason why the pleading of the
1
st
Defendant refers to him being convicted for
murder.
His reply was that investigators work independently without
influence from them. He consults the record of a prisoner if he needs

something from there but does not keep it or is not in charge of the
records.
[65] He further
testified
that
he
believed
that
if
the
footage
from
the
cameras
outside
the cell was
requested
from the facility
it would
have been provided.
He
stated that
with a planned
use
of
force
a
video
camera
is
used
to
show
that
all
the
procedures
have
been
followed, that consultation has
taken
place
with that person and a
stalemate reached. Agreed that it is also to show the extent of the
use of force that was used whether
it
is necessary or was exceeded. He
testified
that “CERT 1” alerts whoever hears it
to come forward. CERT 2 is for the riot squad.
Handcuffs are carried by him as part of his uniform. He knew that
Cert 1was
directed at cell
1
5
because when
he goes through
the door of the pod
there are
visible cells on
the
ground
and
first
floor
and
through
the door
on
the
first
floor that
is
where
the
Plaintiff
and
Nemamilwe were.
Luvhengo
in his statement
to
the
police
said
"At
about
9h30
the prisoner Takalani was attempting to
burn
a cell and I
was in the court
and I
tried to stop
him
then
he
became
aggressive
then
I called
backup
and
officers
Munyai
and
unit manager
Mathebula.
He started to hit me on the chin." He
confirmed that
Luvhengo
called for a
back
up to be
a
ssisted.
Munyai statement
was that he was called by a control room
operator
to
attend court D where
there
was
a
prisoner by
the name
of
Takalani N who was threatening to burn the prison
cell
at
KD. He said
when
an announcement is made through the radio or on the control
no mention
i
s made of the name of the
pris
oner.
Munyai and Luvhengo were at K block where there
are 4 courts and the controller is on K block at an elevated position
could see
all court A TO D. On the issue of distance, he confirmed
that from his office to the
Plaintiff's
cell there
are three
automatic
doors
that
have to
be
pressed
and then wait
for
the control
room to open the
doors.
He heard the
call on the
radio
and
ran
as it was
an
emergency.
When
he was told that
it
is impossible
to
have arrived there
after
the 800
meters
and found
the tissue
still
burning,
he said
he
must correct
the
issue of the
800
meters and agreed that it is a long distance to reach. He said he had
to correct it he thinks he overestimated the distance
he would
say
it is 80 meters, even if he has to pass three
doors. He also realize that there was no injury
that
indicates that
he had burns on any of his hands. He denied that
tissue story was therefore a makeup story it never happened. He did
not know who
requested
the
transfer
of the
Plaintiff,
as
he has got
nothing to
do
with the
transfer
of prisoners but the personnel of DCS. He did
associate himself with the affidavit of P Latta that states
that
the
Plaintiff
was
due
to
a
number
of
behavioral
problems
which
led
to
the disciplinary
hearing
against
the plaintiff,
the
officers of
the
pt
Defendant
were of
the
opinion that the change in environment
might assist the Plaintiff and requested
the DCS to transfer
the
Plaintiff
to
another
prison
and the
Plaintiff
was
transferred
to
Thohoyandou prison
on
29
October
2012.
That
the
transfer of
Plaintiff
was
requested
by
his employer, the
pt
Defendant.
Asked
if he
knows where the Plaintiff was transferred
to after reading the statement
on Thohoyandou that he agreed to, he said
when they transfer prisoners
it
is either
Thohoyandou
or Thamboni
prison,
which
are
under
DCS.
About
the alleged smuggling /transfer
to Barberton, without there
being a request and the
injection, he said
he
does
not
know
anything
about
that.
He
said
they
cannot
transfer a prisoner
to Barberton,
it
is impossible. He agreed that Kutama may make a request for a
transfer, it is for
the DCS
to can accept or refuse. He does not know anything about the illness
of the Plaintiff because
after the incident of
the burning tissue the Plaintiff was transferred
to the E-Block that is the last time he
saw him,
as when he came out he was taken to
the yellow
prison and then
transferred.
However
a
prisoner
can
be
transferred
even when
he is under
treatment,
they
have done that at
Sinthumule and also received prisoners who are under a treatment.
[66] On the use of force
he agreed that only certified prison officials
who
have undergone training
and taught
prison
procedures
and training can
use force
on
the
offender
to subdue him.
He
confirmed that the reason minimum force was used is because he said
to the Plaintiff he must give him
the tissue and he refused
thereafter they approached him, he did not plead with him to submit
himself to be handcuffed. It was not
as pleaded in the Plea that he
was refusing to be
handcuffed.
On whether
there
was
imminent
danger
when
pouncing
on
him
he
said
his duty was to protect
every offender
including the
Plaintiff against
himself and
the use of force was the
last
resort. He denied that they do searches
on
prisoners'
private
parts.
He
alleged that the Plaintiff wanted to catch the officials off guard in
burning the prison.
On
that day
1
1
February
201
1
,
Plaintiff
was
coming from
E
Block to
serve
a sentence of 42 days imposed for possession of dagga on which he was
found guilty on 30 December
2010
after admitting to the charge.
He
refused when he was informed that
he
was supposed to go back and serve
another sentence, he
is
not
sure
which
one.
Nemamilwe is the person who has the
documentation
and in control
of the
Plaintiff
he was supposed to call him and inform him of his
f
ate.
It
seems at E Block on
1
0
February 2011 he was charged with
the
offence
of
insulting an officer, the
charge
came after the a
ssault.
They did not
find any dupa on the day. They
did not check if he used the fluorescent
light
to ignite the
tissue.
Plaintiff continued being aggressive even after
being handcuffed using his limbs and shoulders. He was taken to
hospital and when
he came back to E -Block
he
was further sent to yellow
prison.
There
i
s
no offender
he has seen being
assaulted
ever he has been at
the
facility.
[67]
On
re-examination Makwea said the five officials were interviewed by Mr
Mabasa who occupies an office located at E Block. He never
influenced
Mabasa
to say or
do anything. The
officials completed the necessary forms after the incident, a
combined report was sent
to
their superiors and the DCS. The Plaintiff did not consent to be
handcuffed when
he tried
to take the paper from Plaintiff he pushed him,
it was then that they charged at him opened
his
hand took the
paper and
handcuffed him. When asked if the Plaintiff was as tame as a
lamb
after
the
tissue
was
taken
he
replied
that,
that
is
when
the
Plaintiff
assaulted
an
official. He
was
aggressive.
He was then
charged with assault, insulting officials and threatened to burn
a cell.
The
hearing
was
held
on
1
8
February 2011and Plaintiff was sentenced to 42
days at segregation.
He was
using the toilet
paper, a
full one minus the cartoon inside the roll. The
board inside was pulled out and the inside of the toilet paper
ignited. If like
that it will then burn for a long time. He said he
was not sure if Plaintiff was kidnapped and prevented from proceeding
with his
civil claim.
[68]
The
next
defence
witness
was
Ndibuho
Luvhengo
("Luvhengo"),
who
confirmed
to have been employed at Kutama Sinthumule since
2004 as a custodial officer. He started by working at Yellow
prison and then switched to Green prison KD
Block. He is now at Block November
at
the
Blue
prison
since
2012.
At
Green
House
his
immediate
superior
was
Nemamilwe, the unit manager whose superior was
the area manager Makwea, the second Defendant,
who
controlled
the
three
blocks.
He
knows
the
Plaintiff and
that
he
was in
prison
for
rape. Giving details about the setting in
the
cells he said each cell has got four beds stacked to one at the
bottom with two chairs mounted against the wall and a table
made of cement. There
is
a
steel toilet at the
corner. There
are
steps from ground floor
to
the first floor. When he reported for duty every
morning he was required to count the inmates from
cell to cell. He could see the cell inside through the small glass.
He would then
report to the controller his counting. The controller
sits above K Block in an elevated office, his duty being to open the
cell
doors and sometimes if there are problems, they will also be
reported to the controller.
He
has computers in
front of him
that he operates to open the cell doors one after the other, although
he can open them at the same time if requested.
It is his decision
either to open them one by one or at the same time. The controller
also has a big
screen in
front of him from which he is capable to see the
movements of every inmate. The controller could not see in the cell
but could see
when someone gets into a cell there
being cameras in the day room. After
he has counted the prisoners they will go to
shower then breakfast, followed by the beginning of programs for the
day. There will
be a pills parade that
is
done at the clinic section,
where
two nurses
will
be
found
then
they
will
either
go
to
school
or
work or recreation. The program pretty much as it
was explained by Makwea. When they come back to
the
block they
go for their
meals
at the smoking area. There
is
an electric
lighter
in the courtyard, the only one he knows they can
light a cigarette. The intercoms inside the cells are for reporting
if there are
problems encountered by the prisoners. They get
connected to the controller by
activating
or
by
pressing
the
button.
The
controller
will
then
report
to
the
correctional officer
downstairs.
He knows 90 % of the prisoners. When the
Plaintiff came to Green Prison he was already there.
He from time to time tried to smuggle things
into the prison.
Dagga
and
money.
He
was
also
a
fighting
type
of
a
person.
Aggressive,
quarrelsome and
argumentative.
Irritable
as a prisoner.
[69] On
11
February
2011
he was
on
duty
at
KO,
he
took
count
of the
inmates,
Plaintiff
was
missing, as he was incarcerated
at
Block E. Around 8h30 he noticed the Plaintiff coming with
his luggage, signaling that
he was
from
E Block.
He
accompanied
him up the
stairs to his cell,
he
wanted
to
have
his
toiletries
or
to
sleep.
He was
carrying
all
his
stuff
because when he went to
E Block he took all his stuff. When he reached his cell
1
5,
he informed other inmates
who
were
in
the
cell
as their
programme
for
the
day
had
not
started
yet, that
the
Plaintiff was back. All four of his inmates were in the cell. He
thereafter
descended the
stairs going back to the
ground
floor.
Whilst
he was
downstairs
doing the
patrol
he got
called
via the
radio
by
his
manager Nemamilwe
who
told
him
to
inform
the
Plaintiff
to
report
to
his
office.
He
went upstairs
and
informed
the
Appellant that
the
manager is
requesting his
presence
at
his office.
Appellant
started
quarreling
and
insulting
him saying
he
knows
why
the
manager
wants
to
see
him.
The
manager
had
not
told
him
why
he
wanted
to
see
the
Plaintiff. The
Plaintiff said
the
manager
wanted
him
to go
back to
Block
E
for an offence
he had
committed. After
informing
the Plaintiff he went downstairs. As he was
busy
patrolling in the cells there
on
the ground floor, he had a
noise
coming from
upstairs, which
sounded
like people insulting
each other. He went
upstairs
to check and found that the
Plaintiff
had taken the
bedding,
sponges
and
sheets belonging
to
other
inmates
outside
the
cell.
The
other inmates were also outside the cell,
complaining about their belongings
being
taken out of the cell. Plaintiff was
sitting
inside the cell holding a
burning
toilet
roll in his hand with
the
inside of the roll
burning as the hardboard inside was pulled out. He had stacked his
bed, sheets and blankets together
intending
to
set
them
on
fire.
He told
the
Plaintiff
not to
do
that.
Plaintiff
became aggressive
towards
him, insulting him saying
he
is a
small boy. He then
sought
his
superiors
as
the Plaintiff
said
to
him
he
wants
his
superiors. Realizing
that
Plaintiff
was
becoming
more
aggressive
he
called
for backup. He
did
that through the radio calling "CERT 1", there is a problem
at cell
1
5 KO CELL
1
5'.
The whole
prison could hear
him. CERT 1 is
a local
emergency. The officials don't carry weapons save for a radio and
keys
that they sign for
in the
mornings.
The KD Block has nine custodial officers on
duty including the manager.
At his station he
is the only one.
[70] Nemamilwe,
the
unit
manager
peached
up.
He tried
to
talk
to
the
Plaintiff
to
drop
the toilet
roll but Plaintiff
didn't. A
minute or two
later
Munyai
and Makwea arrived.
Makwea
tried to talk to
Plaintiff as
well that
he must not do what
he was doing and drop the toilet
roll, Plaintiff
did
not.
Makwea
tried
to
move
towards
the
Plaintiff
and
the
Plaintiff
pushed
him back.
He
(Luvhengo)
attempted
to
intervene
and to talk
to
him
not
to do that. The
Plaintiff
then grabbed
h
im,
punched
him
with
a fist
on his
left
cheek.
Monyai
then
came
in trying to
grab
the Plaintiff.
There
was also Mathebula and Matladisa.
Then
the Plaintiff
slapped
Munyai with an open
hand as
they
were
trying on one
hand
to take
away
the toilet
roll
and
him refusing.
Makwea
managed to take it away then handcuffed the Plaintiff. who
nevertheless
continued
to
be
a
ggressive.
Makwea, Nemamilwe and Mathebula carried
handcuffs.
The
Plaintiff
was
fighting
and
did
not
allow
himself
to
be
handcuffed. He
was
fighting so they tried to get him down and after sometime they
succeeded. They then tried to get
his
hands
at
the
back
to
handcuff
him.
I
t
took
them
sometime
for
their endeavour
to
succeed
as
he was
resisting.
He was
asked
what
happened to
his clothing at
the
time.
He replied that
his
shirt
was
torn
by
the
plaintiff. When
asked
if
it was
the
only
thing
torn
he said the
pocket
on
Mathebula's
trouser
was
also torn.
He
said
Plaintiff
fell and grabbed
Mathebula
to stop himself from falling. There were six officials there. After
handcuffing the
Plaintiff
they
got
him
on
his
feet.
All
this
was
happening
inside
cell
1
5.
The
Plaintiff
managed
to get himself down the stairs and he
and
Nemamilwe were behind him.
All
others
were
behind
them.Plaintiff
tried to
remove the cuffs and to
r
esist. Then
Nemamilwe and
himself
each grabbed him
on the side
and
tried to get him
out of the pod. Plaintiff was taken to the green
prison clinic. He remained
behind
in
the
pod.
Nemamilwe
and
he
knew
the
Plaintiff
very well. The Plaintiff was misleading the court when he said
that Nemamilwe told him to take down his pants
and under
pants and inserted
two fingers
of
his gloved
hand
into his anus and that when
he
jumped they all started to hit him with fists and
kicked him
until
he fell to
the
ground.
Also
that
a
custodial
officer
jumped
on
his
private
parts.
He
denied that
he
followed
Plaintiff
while
his
hands were
cuffed
behind his back.
He
denied
Plaintiff's
story
of
legs that
were
cuffed and that
he
was
picked
up by the
legs
dragged towards the stairs
and said
Plaintiff
was walking
by himself. He
also denied that
Plaintiff
was
pushed
down the stairs or that
he
rolled until to the ground
his
legs curled up to
his
chest.
That
he was then pulled up the stairs again and his head bumped against
the steel stairs. He denied that he was pulled by the chains
on his
legs out the pod or gate.
[7
1
] He
said he remained behind when they were taking him
to wherever.
What he
and his
colleagues
did
to Plaintiff was necessary
to prevent damage
being done in
cell
1
5.
It
was his
left
cheek that
was injured during the incident and
was
not aware
i
f the Plaintiff was also
injured at the t
ime. He did
not see any injuries on Plaintiff. He knows and does not dispute
that Dr Rambuda examined the Plaintiff and found
injuries. And he could have sustained the injuries during the
incident because
of the way
i
n which he was f
ighting.
He
went to
see
Dr Rambuda for the injuries he sustained as his private patient. He
already had a file
with him. He saw him around
1
6h00 on the same day. Monyai
also went to see the doctor.
[72] He admitted to his
statement that he made when he reported an assault case to the
police. In the statement
he
said he was
hit with a
clenched fist o
n the chin by the Plaintiff
and sustained
an
injury,
a swollen left chin. He mentioned only
four people
i
nstead
of six
and said he
forgot the other names and mentioned only
those who accompanied him
to
the
doctor.
He
said he was familiar with the use of force document. The incident in
cell
1
5 was
unplanned.
The
purpose
of
which
was
to
protect
the
Plaintiff,
the
other
inmates
and
property using minimum
force. The use of unplanned force document was followed and a
filing of a report required. Nemamilwe was required by
the document to furnish a report of
the
incident, which
he did,
writing that the Plaintiff
refused
to be examined by the medical
staff
meaning
nurses
at
Green
prison
clinic. He
confirmed
that
an
investigation
was
conducted by Mabasa who
interviewed him. Mabasa reported that
he
(Luvhengo), said to
him inter alia, that
"Plaintiff was
in
possession of fire on his hand and the area
manager
requested him to put
down the fire and he says the offender refused. Plaintiff then pushed
him, tore
his
t-shirt
and
hit
Monyai
on
his
left cheek.
The
offender
was
handcuffed
and taken to E
Block."
He indicated
that Makwea's office i
s
about
75 to
80 km from his office.
He indicated that
the
tissue that
Plaintiff
burnt was
a
toilet
paper
roll
which they have taken out the carton in the
middle and then squeezed
and
l
i
ght
on
the inside.
I
t can burn for
about
1
5 to 20 minutes.
Although the Plaintiff said there are four chairs in
the cell, there are only two.
[73] During cross examination his testimony was that
before he was employed by the 1
st
Defendant he had no experience of dealing with inmates. He had known
the Plaintiff to be a troublesome
somebody
since
2010.
He was
once found with dagga
and insulting staff
members.
He said
his colleagues
were
also
aware that the
Plaintiff was
a troublesome somebody,
Nemamilwe
and
Makwea
as
Nemamilwe
reports
to
him.
When told that
Makwea
said he does not know the Plaintiff he
only got
to
know him on
1
1
February 201
1
,
he said Makwea works with
1
52
prisoners and he may not know them
individually
by name.
Asked if he was
aware that Plaintiff fought with other i
nmates,
he said he was aware as
well
as Makwea,
the area manager.
He
was aware because he works
with him. He would make sure that it ends there and there. He would
sit
with the inmates and
cause them to apologise
individually
to each other
and
ending the matter there
and
there. As the person who was in charge he could conciliate or report
i
t. Plaintiff did not fight
everyday
but had a lot of
pending
cases. He denied that
the Plaintiff was assaulted
and confirmed that
i
s
what
he said even during the
criminal trial
in
the
magistrate
court.
He
confirmed
that
there
was
no
charge
of attempted
arson
or malicious damage to property. He
got an
sms
informing him
that the
accused was acquitted of the charge. (He could not prove the assault
on him). It
was put to
him that the court did not
believe
his
and Munyai's version. He said
he
reported the
incident after
1
6h00 as he was waiting
for the doctor. He went to the doctor at 11h00.
At the practice there was no doctor available. He waited since he
knew Dr Rambuda
for a long time
and
had a
doctor
patient file with him.
[74]
On
the
application
of minimum
force
on
the
Plaintiff he
said
inmates
are
to
be
taken
to
the
clinic
before
they
see
a
doctor.
He
did
not
see
any
problem
with
him
seeing
the
same
doctor
the
inmate
has
consulted.
He
went
first
to
obtain
a
form
the
J88
from
the
police
and
then
went
to
the
doctor.
He
hung
around
at
Rambuda's
surgery because he
preferred
the
doctor rather than
another one. He admits i
n
his
statement
to the investigator
he
never
said
he
was
assaulted,
only
said
his
t-shirt
was
torn.
He
said
he
nevertheless
respected
the
findings
of
the
investigation
as
a
credible
outcome.
In
his
statement,
he
did
not mention taking Plaintiff to the clinic but to
segregation because he was
shortening
his
statement.
I
t
was
then
pointed
out
to
him
that in
the
criminal
court
they
said
he was
not
injured and
they
took
him
to segregation not
clinic.
so
the Plaintiff had
to call the doctor who noted
the injuries and confirmed that the Plaintiff
was brought to him,
whilst
they were
denying that
he
was
injured or
saw a doctor.
He then agreed
that the Plaintiff might have had
i
n
juries.
I
t
was
pointed
to him
that under
oath he said
the plaintiff was taken to segregation
trying
to
maintain
that there was
nothing
wrong
with the Plaintiff and
that
they did not
see any
injuries.
His
reply
was
that
Plaintiff was first
taken to
the
clinic, that
being inconsistent
with
his
statement
because
he was
trying
to shorten
the
statements.
I
n
his
statement
he
said
Plaintiff
was
taken
to
segregation
however
he
is
denying
that is
what
happened,
they
actually
took
Plaintiff to the
clinic
and
in
court he was
now
saying to the clinic that
is
what the court
must believe.
He
confirmed
that
If somebody says he
was
assaulted
on
the
neck he would be
telling
the
truth. Even
though he was assaulted on his cheek.
Other transgressions of the inmates,
including
the other way
they light the cigarette was not known
by
the
employer as
he
did
not
report
them
instead
he
charged
them
himself.
[75]
Regarding
the
psychologist's report he said it
was
wrong where it said Plaintiff came
back to
segregation on
1
0
February 2011.
Also wrong
that his
cell number was
1
6.
He
came back on 11February.
He did not take the Plaintiff to the segregation room but remained in
the
pod.
He
does
not
know
how
the
lights
look
like
at
the
segregation
room,
thinks
they
would
be the same.
He did not get
the time to tell Nemamilwe that the
Plaintiff
is refusing his
orders
as he had to call for backup. When he came with the Plaintiff to the
cell, the other
inmates were
there. He introduced him to them. When he returned he saw Plaintiff
with
a tissue
in his
hand
the
other
inmates
were
outside.
The
inmates
were
surprised at
the
plaintifftrying to set their property on fire.
I
t
is an electronic door, during the day the doors remain open. When he
went back to Plaintiff the third time he noticed that he
was carrying
the whole toilet roll in his right hand. The fire was burning from
middle of the full toilet roll. He
told
the Plaintiff to put the fire down. What Plaintiff did that day
frightened him as it was unusual
and
only
when
he
refused
to
put
the
tissue
down
did
he
call
for
b
ackup.
Nemamilwe,
the
unit manager was the first to arrive from the K- Block a minute after
the c
all. He had to
pass
two doors electrically controlled from the control room.
He
was followed by Makwea
who
arrived in
2
minutes passing
three
doors. His office being
75
to 80 meters a
way. Everybody
arrived
whilst
Plaintiff
was
still
holding
the
tissue
except
Mathebula
and Mathladisa. When the two arrived
Makwea had already taken away the
t
issue.
There was no visible damage to the light.
He
did not investigate where and
how
the Plaintiff got the
tissue
lighted. He disputed that there was
no
i
nvestigation
because
there was
no
burning tissue.
When Makwea arrived he
instructed
Plaintiff
to put the burning toilet roll down. Plaintiff pushed Makwea with his
left hand. He was at a distance since inside the
cell.
Holding
the
toilet paper
i
n his one
hand
for 6 minutes. He (Luvhengo) then moved
forward with Makwea now behind him.
Makwea
then stepped
forward
to
take the
burning
tissue
and he
succeeded.
After
that
he
resisted to
be
handcuffed
and as the
toilet paper was taken from him
there
was no
l
onger a threat. He
then
refused
to
be
handcuffed and be taken to the
E
Blo
ck. He (Luvhengo) was
summoned back up because the
Plaintiff had
a
burning
tissue
in
his h
and.
Nobody
was burnt
by
the
tissue.
The floor shines
and can easily be ignited.
He
does not know what
happened
to the tis
sue.
Makweia
had
taken it when they brought him down.
In all they were six in number when they did
that.
He did not see any injury
on Plaintiff when
they were struggling
to
handcuff
h
im. Three
out
of
the
six
officials
that
were
there
had
their handcuffs
with
them. Plaintiff was only handcuffed. They
don't
use
leg cuffs so nothing
happened
to
his
legs.
Plaintiff
got out on his own out of
the
cell and went
down the
stairs.
When
he
reached down the stairs
he
resisted moving f
orward.
[76]
He
confirmed
that
they
were
nine
prison
officials
that
were in
that
section
working
at
their
pods. He
was
hearing for
the
first
time
that
Plaintiff
was
searched and
told
to
take
off
his pants
and
that Nemamilwe inserted his
finger in
his
behind.
He
denied ever
saying they
are there
to
search
him for
dagga.
At no stage
was
the
Plaintiff assaulted.
The injuries on the
Doctor's J88 might have been at the time
when
they tried to subdue
him in
the
cell
.
He
did not see his physical
i
njuries
but knew
about
them
from reading the paper. He denied that
he
opened
up criminal charges in
order to avoid any being opened against him. He however
did not dispute the injuries as
recorded in
Rambadu's report.
When
Plaintiff was called, he
was
supposed to
go
back and
serve a 21days sentence.
He
denied
that
after
the
101
there
were no
further transgression of
the
Plaintiff, or that he served the entire period before he was
transferred at segregation. He does not
take
the
blame
for
what
happened
on
the
1
1February
and
would
use
minimum
force again if an inmate becomes violent. They
were
not in there on the
search for
dagga
on that day. In his 10
years
of being there he has never seen an inmate being assaulted by the
prison officials.
He only
testified
about
the
left
chin that
was
swollen
and
not the
neck
as
alleged
by
Mathebula
and
Makwea.
[77]
On
re-examination
he
confirmed
that
he
made
a
statement
to
the
police
on
his
assault by the Plaintiff.
He said in it his t-shirt was torn apart
and
then they managed
to handcuff him and took
him to segregation cell.
He
however did
not
accompany
him to
the
segregation cell. He was taken by
N
emamilwe.
on
whether
he was
unknown to the
Plaintiff.
He agreed that
he would not
have
recognized
him. Plaintiff
did not know
him at all. He was
known to
the Plaintiff
and also
Nemamilwe who had his office on the block as well as Monyai who had
his office
near the passage.
He denies
that
Plaintiff
was
assaulted.
At
court
nothing
was said about
the gloves and Nemamilwe or pushing
Plaintiff down the stair
s. The
leg
irons
are
only
used
when
an inmate
is
being transported
or
escorted
outside
court.
And
not
used
inside the
prison.
Defendant's counsel then made statements on whether or not the doctor
was
in cohorts with the
prison officials on the assault.
P 553. He thereafter
made
an application to
lead
evidence about the torn clothes and about the Plaintiff being
smuggled
to
Barberton prison, which was refused.
[78]
N
E
Mathebula, an erstwhile
college
educator
who
has
been working
in
Sinthumele prison since 2002 indicated that on being employed he
underwent training by Fidelity Security Group
for
six
weeks
and
obtained
a
certificate
for
working
with
offenders.
He
started
by working at the Blue prison as a correctional
service (custodial) officer. He was then promoted to
a
level
of
a
supervisor
within
that
prison
and then
a
Unit
Manager,
the
position he was holding
on the
date
of the
incident.
Presently
he
has
moved
to
the
special
treatment
unit, that is segregation
at
E Block. He said they are rotated in order to
stop the prisoners getting familiar with them. He used to report to
Makwea, the Green
Prison's area manager, when he once worked in M
Block at the Green Prison. He had four pods with 380 offenders in M
Block.
[79]
According
to him he received a radio call at about 9h30 coming
from Luvhengo at KD
asking
for
a
response
because
of
a
situation
at
KO that
i
s
in Green
Prison where
the
unit
manager
was
Nemamilwe. On
hearing
the
code
which conveyed
only
that
there
was a problem, he
ran
to
the
situation from his
office
which is
about 90 meters
away,
going
through
4
gates opened
from the control
room. The first
door
at
his
section
opened
by the
control
officer stationed
there
and
the other controllers
from K Block had
to open
the remaining
three
doors.
He
was
therefore
the
last
person to
arrive
at
cell
1
5. The
officers were trying to
subdue
the
Plaintiff. He did not
know
the
Plaintiff
at the time.
I
t
was
the first time
that
he
had to
deal
with him. Plaintiff
was
refusing to
be
restrained and very
violent.
He did not know what
was
happening he says
he
only got to
know
the whole
story
when
it
was related to
him
after the i
ncident. Plaintiff
was
refusing
to
be
handcuffed.
I
n
a spur
of a
moment
he saw the
Plaintiff assaulting
Luvhengo with a fist and Munyai with an
open hand.
He
assisted
in
trying to subdue the Plain
tiff. Plaintiff
managed to
hold his uniform
pants with
his
hand and tore
it
whilst
he was
on the floor. They
managed
to take
Plaintiff's
hands
off
and restrain him with the handcuffs.
He
did not see any burning stuff in
the
cell or anywhere else.
He
said they ordered Plaintiff to move out of the cell and he did
unaided, until down the stairs
to
the
p
od.
As
he
reached
the entrance of the pod Plaintiff started to refuse to
move again
that
i
s
when
Nemamilwe
and
Mahladisa
held both his
hands, one on the
left and
the other
on the right
and
hauled him out
of the
unit to the clinic.
Plaintiff was fighting
refusing to
be
taken
o
ut.
They
succeeded
in taking
him
out
because
of the
restraints
they
applied
on his hands. Plaintiff was taken to health care
whilst he went home to change the torn uniform and then came back to
prison.
He did not see any injuries
on the Plaintiff.
i
f
he was injured
as
per
Dr
Rambuda's
J88
it
was
under
the
circumstances that he
described because
restraining
is not something
that
i
s
done
kindly as
he was violent.
In the
process
of trying
to
get some order
he could have
sustained those
injuries.
I
n
an event of an offender
being
violent
they
consider
the
safety
of
the inmates, of
himself
and the safety
of
staff
and
also the safety of the property that they
are
supposed to safeguard. They
have
something
that is called use
of force procedure.
I
t can be
a planned use of force or unplanned use of force. The one exercised
on the Plaintiff was
not
planned. As
i
t was a response
to an unexpected event /occurrence.
He
does not know why the Plaintiff
behaved
that way that
d
ay.
He was
seen by the doctor as
it is procedure.
[80] He said as a unit manager he was aware of the
procedures he had
to adhere
to after the
unplanned use
of
force.
He
would
have
called
the
members
who
were
involved
to
complete a use of force form and to check the
statements which would be taken along with the use of force. And the
second thing
is to take the person who was involved and subdued to be
seen by the
medical staff
or doctor. Counsel then put
i
t
to him that as a unit manager he
had
to
fill
up
an
incident report
within
an
hour
after
the
incident
which
was
to
be
submitted
to their
principals.
He
said Nemamilwe completed the report as the unit manager
at K Block approved by Van
Rensburg and Mr Damano who comes from
DCS who
is
their client. An investigation report was also filed by Mr Mabuza L S
who works at the investigation
unit, a
separate
unit from
the
Green
Prison
and any
of the
prisons'
units.
He
confirmed that
he made a statement
to
Mabuza
that
'he
responded to
a
call
by
Luvhengu and found Nemamilwe,
Munyai,Makweia there. That
Plaintiff
assaulted
Luvhengu
and also Munyai with a fist
on
the cheek
and
on the face
with
an open
h
and.
They then helped one another
to
restrain
Plaintiff
and while
they
were trying to
do
so Plaintiff tore
Luvhengu's
T shirt and his pocket. They managed to restrain him and the offender
was taken to E-BLOCK.
Offender Plaintiff was
never assaulted by anyone regardless of his violent behavior.
Munyai
and
Luvhengu
were
taken
to
see
the
medical
doctor
for
treatment.' When
he
made
the
statement he
wasresponding
to
the
allegations
of
assault made
by
the
other
officials against
the
Plaintiff. Counsel
read
in
the
document
that
Plaintiff's
attorney
was
going
to discover,
photos and
witness
statement
and only discovered
SAPS
docket
and the charge,
mentioned
therein
i
s
common
assault and
the
complainant
i
s
Luvhengo he
mentioned
punched by
fists. He was
reading
from the cover sheet
of the docket in
respect of
Luvhengo's
complaint about
the
assault
by
Plaintiff.
He
confirmed
that
the
Plaintiff
was
acquitted on 26 July
1
0
1
1
.
I
t
was
put to him by Counsel
that
he also
made a statement
and
was asked to read it.
He read
that "At 9h30 he received a radio call to say he should report
to K Block Pod D. On arrival he found offender
Plaintiff
PDS210743159
who was threatening
to
burn the
prison cell. He
was also aggressive!..When ordered to calm down
he started assaulting
officer
Luvhengu
and
Munyai with fists.
When
trying to restrain him the Plaintiff further tore officer Luvhengu's
T shirt and his trouser pocket apart.
Officer Luvhengu
sustained
a
swollen
left
chin
and
neck
during
the
a
ssault."
He
confirmed
that
he
said
he
did
not see anything
about
the
burning of the
c
ell and made the
statement on the angle
of
reporting
at
the
police
station
as
a
witness
of
an
incident
of
assault
that
took
place
on officer
Luvhengo
and officer Munyai.
There was
a debriefing on the cause
of the incident
about what
happened after the
i
ncident before
they went
to
the
police
station. After
each and every
incident the
people who were
involved sit
around to discuss the incident
reported whether
i
t
is
i
njury,
restraining
or
anything
that
has
to
be
reported
i
n
the
i
ncident
r
eport,
the members
have
got
to
talk
about it,
that
is
policy
and p
rocedure.
That
is
where
he
got
the
information as to why the Plai
ntiff
was violent and was rest
ra
ined. He
confirmed
that he
mentioned
something he
did
not
see.
After
the incident he had nothing further to do
with
the
Plaintiff.
[8
1
]
He
denied
Plaintiff's allegations about leg
irons
or cuffs stating
that they do
not carry
leg irons
in
prison and
did not
use
leg
irons on him.
He was never pushed
or pulled
by
anybody.
Nobody inserted any finger on his
private parts.
That has never
taken place it
is a
fabricatio
n.
The only time leg iron are used by Kutama is when the offenders are
to
move from
one
prison
to
another
to
minimize
the
risk
of
escape.
He
carries
only
the
keys, handcuffs and radio
that he signs for in
the
morning. The custodial officers on duty
in
the pod do not carry firearms or handcuffs, they
carry only keys and a radio. The unit
manager
carries
the
handcuffs.
He
was
seeing the
Plaintiff
for
the
first
time
on
the date
of
the incident. Inmates are not allowed to have
fire in
their cells but they
always
try and make means to
have fire and because inside the cell there is fluorescent. There
is an electrical device that is mounted on the
wall and that is done under supervision of a
custodial officer in
the
court yard.
I
s the smoking
area. The other means are unlawful. Which are, they will take a
spring form a Bic pen and scratch
i
t
and connect
i
t
to the fluorescent light and when it
is connected it
attracts
heat from the
fluorescent
light and it
burns.
When it
is
hot
and red they are able to
put some toilet paper and
i
t
i
gnites fire for their own
personal use which i
s
unlawful. After that they take off that spring and hide it. According
to him it
is very rare to
see, but sometimes one would see small blackish marks
on the fluorescent light. There is
a small cover that they are able to pull out and
once they are done with the use of the light they put back the cover.
I
t is not completely closed.
They have to be at one end of the tube light to do that.
He
was
shown
something he called the dupa. His testimony
was that the inmates
string a
tissue
paper
together.
When they have
i
gnited
the fire from the fluorescent light, they
attach it to that
so
that it burns slowly for their smoking
purposes.
If
one
is a smoker
and want to smoke after hours when he
i
s
having
that kind of
a
fire with them
in
the cell in
the
night he is able to go to it and light
the
cigarette until dawn. It
is
kept
i
n
the cell unlawfully, burning, as they are not allowed
to smoke in the cells. It
can burn for two hours depending on
the length of the string
and
i
t
i
s
a
general thing.
The toilet paper spoken about can burn
for twenty m
inutes.
[82]
I
n
reply to cross examination he testified that
it
was
officer
Munyai or Luvhengo
who was
calling
on
the
radio
telling
them
to
respond
to
KD
where
there
was
a
problem.
He
mentioned
CERT
1
code
which
when
i
nterpreted
means people must respond and the number of
people that must respond should be a
minimum of six people regardless of what
kind of
a
situation.
Luvhengo or
Munyai did not mention what
was the problem in
the
radio.
He
was the
last one to arrive.
His office is furthest then Makwea's. It
took
him plus
minus
3 minutes from
a distance
of approximately
90
meters where
he was
stationed to
reach
the cell, passing three doors, on each having to
press the intercom button for somebody
(the
controller) to open for him.
The
time it
takes to open the
door depending on
the
emergency. The
Plaintiff's
cell
1
5 was
in the first
floor.
In his statement
to
the
investigation
report
he
refers to cell
1
6 which he
believes is an error not a lie to which all of them have said cell
1
6. Also
Luvhengo's
left
cheek
was
swollen.
On
his statement
to
the
police
he said
officer
Luvhengo sustained a swollen left chin and neck
due
to
his
assault. He
never mentioned the neck
because
two
things
happened
that
day.
After
the
incident
there
was
a
debriefing during
which
Luvhengo mentioned
that he
is
feeling
pain
on
his
neck.
That is
what
influenced him
to
write in his statement to say that a painful cheek and neck,
influenced by what
he heard
from Luvhengo and he believed him. So the neck was not a mistake even
though luvhengo in
his
evidence also did not mention it.
He
denied
that Luvhengo was never
assaulted, stating that
he was assaulted
in his presence.
He
could not say which hand the Plaintiff used to assault Luvhengo.
There was a mix up in
that
situation.
He saw the assault and did not see
any burning thing in the c
ell.
When he was told that Luvhengo said when he was
assaulted on the cheek the Plaintiff was carrying the toilet paper on
his right
hand and he hit him
with
the left hand. He said he did not see that because he was
concentrat
i
ng
on restraining the Plaintiff.
I
t was put to him that he also did not see the
tissue because the Plaintiff never carried
any tissue. He said any form of violence
regardless of the cause he is obligated to
prevent it from further o
ccurring. Whether
he could or could not see it, he is responsible
to stop that kind
of
violence. He did not see
anything
happening
to Mokwea as he
came late.
He never saw anything.
However
he saw when Plaintiff assaulted Luvhengo. Although his pants were
damaged, he did not open a criminal case because that
is not his
property.
He only reported it
to his employer.
[83] On the
assault
on
the
Plaintiff,
I
t
was
put to
him that
the
assault
on
Plaintiff
was
unlawful and the
search
intended to
humiliate
him.
He said they applied
minimum
force because the Plaintiff
was violent, assaulting staff.
Restraining
was the best
they
could
have done and that is what they did as
their
lives and that of
inmates were
in danger.
Plaintiff used fists to injure Luvhengo
and Munyai.
He
denied
Plaintiff's story that
he was
thrown
down the stairs or that there is something like lawful assault in
prison. He
said
Plaintiff was not assaulted but only restrained
with handcuffs. He also indicated that offenders who take part
in
the
illegal
way of burning
cigarettes are
charged.
And it
goes
to
the
director of prisons. He arrived late but what he said was enough
according to what he saw.
He
saw the assault, help restrain an offender (the Plaintiff) and did
not see the Plaintiff being
assaulted
because he
was never
assaulted. He
agrees that the
Plaintiff sustained
injuries
as documented by Dr Rambuda but not because he was assaulted but
during
the
time he was being restrained.
[84] After
the
scuffle
in the
cell,
according to
him Plaintiff
was
taken
to the
clinic
and
healthcare
by
Mahladisa
and
Nemamilwe,
he saw
them
taking
Plaintiff
to
the
clinic.
He
however said it is correct that he told Mabuza that
the Plaintiff was taken to E Block which
was
his
final
destination. He
said
he
went to
the clinic in
court because
that
i
s the procedure.
Procedure
says that they must via through the clinic, healthcare and then E
Block. He just
stated the
summary
of
the whole
thing.
It was
put
to
him that
they
said
that
to
Mabuza
because
they were denying
that
Plaintiff had injuries. He
replied
that it
has
never happened in his time working
in
the facility that
an offender
will
be
admitted
in E Block without
via
the
medical
personnel.
I
t
has never
occurred and denied
that they
said Plaintiff was
not taken to the doctor. He admitted that they
have cameras at the corridors.
I
t
was put to him that
there
were
camera
recording
after
Plaintiff
was
taken
out
of
his
cell
down
the
stairs,
until to the
clinic or
E Block, even when they allege that
he started
acting
aggressively.
[85]
On
re-examination he confirmed what was put to him by Counsel that
Plaintiff was
seen by Rambadu at 9h45 on
11February 2011.
The health
clinic i
s
not
far from E Block it i
s
1
5 to 20 minutes away. He confirmed
that
Plaintiff did see Dr
Rambadu that day shortly
after he received
the help call at 9h30.
[86]That was the Defendant's case
ANALYSIS OF
THE
EVIDENCE
[87] It
i
s
apparent that the Plaintiff was regarded as a nuisance by the
custodial officers
at Sinthumule. He was referred
to in strong and harsh terms. Allegations made about him
by
those who allege to have been
familiar with him or have interacted with him one
way or
the
other
indicated
that
he was
loathed
as
an
unpleasant
character.
The
Defendants'
witnesses described him as a fighting type, aggressive,
quarrelsome, argumentative and
irritable as a
prisoner, branded a convicted murderer and a rapist in
the Defendant's Plea
and
referred to
him
in their
internal
incident
report,
as
one of
the dangerous
offenders
whom under any circumstances can kill
or
attack the officer to a regretful
situation
meaning he would not hesitate to kill. He was
also said to be a troublesome
somebody since
2010, having once been found with dagga and insulting staff members.
Also alleged that officers were aware that Plaintiff
was troublesome.
It was as a result
noticeable
from his evidence and demeanor that such awareness and knowledge of
how he i
s
perceived, of the
type of character
he
was
projected
to
have
and
the
general negativity
in
which he
was
held frustrated
him.
One could, during the
presentation
of
his evidence sense that as
much as he wanted to coherently present to the court the facts
of his
alleged
assault and indignity thereof, he
was
eager to also express as
well
as
convey
his
general
discontentment and the frustration
he
suffered due to that
perception
and the
unkindness that
he felt was
being
meted out to him.
[88]
He complained of having spent most of his incarceration at Sinthumule
locked up in segregation and that all the charges were
brought
against him whilst he was there. Since 30 December 2010 until he was
transferred in August 2012. He indicated that they
kept on keeping
him in the single cell wanting to destroy him mentally even though he
told them that he wanted to learn. He felt
humiliated and troubled
due to the assaults and the segregation. Rambadu also confirmed that
at the end he was concerned about
plaintiff spending so much time at
segregation that he was not being rehabilitated or getting educated.
He only attended school
up to Standard 5 and according to Plaintiff
could not read or write.
[89]
It was in that vein that Plaintiff presented his evidence. It is
therefore understandable that his evidence although sincere,
carried
an air of bitterness and overstatements. However, considering his
background I do not believe his evidence was thus tainted.
The
incident of assault occurred a few minutes he came out of the said
segregation having spent 42 days there for possession of
dagga, the
longest period (maximum sentence) that a prisoner can be punished to
stay at segregation. Part of Plaintiff's evidence
was not challenged
by the defendant's witnesses particularly that Plaintiff was alone in
the cell when quite a number of the custodial
officers descended on
it. Plaintiff says there were nine officials plus a sniffer dog. They
started searching the cell with the
dog sniffing around and when they
could not find anything, he was told to lower his pants and two
fingers inserted in his anus
to search him. He jumped (feeling
uncomfortable) as a result the officers assaulted him with fists,
kicked, handcuffed and escorted
him out of the cell. He was pushed
down the stairs, dragged and escorted out the pod to segregation at
the single cell. He had
visible injuries that he sustained during the
assault, however no injuries were noted on his head by the doctor
that were from
hitting his head against the steel rails that he
alleged to have also sustained when he was dragged with his feet held
high. An
apparent exaggeration which explains why visible injuries
were not noted by Rambadu. All the same it does not take away the
fact
of the probability of him having been dragged out to the pod. He
might have felt a bump but possible it did not manifest into an