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[2016] ZAGPPHC 1073
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Mathebula v Minister of Police (15535/2015) [2016] ZAGPPHC 1073 (15 December 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO:
15535/2015
Reportable:
No
Of
interest to other judges: No
Revised.
15
December 2016
In
the matter between:-
NTSHADI
MATHULE
MATHEBULA Plaintiff
and
THE
MINISTER OF
POLICE Defendant
KOOVERJIE
AJ:
1.
1.1 The matter is based on a claim for
damages arising from the alleged assault and unlawful detention of
the Plaintiff by members
of the Defendant.
1.2 The Plaintiff claims to have
suffered injuries at the hands of certain Police officers who were
acting within the course and
scope of their employment.
1.3 The issue of merits and quantum
have been separated by agreement between the parties.
1.4 The issue for determination for
this Court is whether the Plaintiff has proven on the balance of
probabilities that she was
indeed assaulted and detained by the
officers of the Defendant and whether she had sustained injuries as a
result of their actions.
1.5 The Plaintiff's evidence is based
on her testimony and no other witnesses corroborated her evidence or
were called to testify.
2.
The
following Police officers testified at the hearing namely, Lieutenant
Colonel Senwedi (Senwedi), Captain Mogapi (Mogapi), Captain
Mahongwe
(Mahongwe) and Constable Lentsela (Lentsela). The salient common
cause facts are the following in this matter:
2.1 On Sunday, the 8
th
June
2014, at approximately 12.30pm, the Plaintiff went to the Mafikeng
Police Station to have certain documents certified. At
the time she
was accompanied by her two children who were 4 and 5 years old
respectively.
2.2 She waited for her turn in the
queue in order to be assisted. Lentsela assisted her at the counter.
This Police officer was
not dressed in uniform nor did she have a
badge. Lentsela advised the Plaintiff that only 10 documents could be
certified at a
time on weekends by virtue of the Station's Policy.
2.3 On the Plaintiff version, she
testified to the following:
2.3.1. The Plaintiff was not satisfied
that this was a genuine explanation and demanded to see the Station
Commander and thereafter
asked to see the second in charge when
Lentsela advised her that the Station Commander was not on duty. At
this point in time Lentsela
became abrupt and rude towards her.
2.3.2. Since she was not in uniform
the Plaintiff thought it fit to take a picture of Lentsela in order
to identify her to the Station
Commander.
2.3.3. Lentsela became quite upset and
confronted the Plaintiff in respect of her photo being taken by the
Plaintiff. Lentsela immediately
went to the other side of the counter
where the public normally stood and shouted at the Plaintiff that she
had no right to take
a photo. She then pushed the Plaintiff, grabbed
her on her chest and her shoulders and pushed her against the wall.
She then dragged
the Plaintiff behind the counter and demanded that
her picture be deleted. At this point in time, the children of the
Plaintiff
began crying.
2.3.4. Thereafter, a male Police
officer (Mogapi) came and requested Lentsela and the Plaintiff to
resolve the issue in a private
room. They all proceeded to a room
behind the counter area. It was Lentsela, Captain Mogapi, the
Plaintiff and the children that
had gone into the room at that stage.
2.3.5. Captain Mogapi was prepared to
certify the documents and asked Lentsela for it. Lentsela refused to
give him the documents
unless the Plaintiff deleted her photo from
her cellphone. The male officer then left the room and closed the
door behind him.
2.3.6. Thereafter Lentsela started
pushing her and attempted to remove the cellphone from the
Plaintiff's clothing. The phone then
fell and was damaged.
2.3.7. The Plaintiff at this point was
terrified and started knocking the chair on the floor in order to
create a noise so that
someone would open the door upon hearing the
noise.
2.3.8. Shortly thereafter, another
female Police officer wearing a two star badge came into the room and
also threatened the Plaintiff.
At this point the Plaintiff realised
that she was in danger, and she then pushed them out of the way and
ran out of the room. She
left without her children and her documents.
2.3.9. As she ran out a male officer
approached her and he verbally abused her. She then ran to the car,
she called her husband,
who then took her to see a doctor.
2.4 Under cross examination she
confirmed that only Lentsela physically abused her whilst other
Police officers verbally abused
her. She persisted with her version
that she was accosted by Lentsela in the public area before they had
gone into the room and
that she was further detained by Lentsela and
the other female officer in the said room. She sustained injuries
which caused bruises
on her upper arm and she was emotionally
traumatised. She only noticed these bruises a day later. She also
admitted that she refused
to delete the photo because Lentsela had
become arrogant and abusive.
3.
Lentsela's
testimony essentially was as follows:
3.1 On the day in question she was not
dressed in her Police uniform however, members of the public could
identify her as a Police
officer. She had called Captain Mogapi
when the Plaintiff insisted to see the second in charge. Whilst
certifying the documents,
the Plaintiff took a picture of Lentsela
with her cellphone. Lentsela confronted the Plaintiff as to why she
was taking her photo
without her permission. The Plaintiff ignored
Lentsela and when Captain Mogapi came to the counter, he then asked
Lentsela and
the Plaintiff to resolve the issues in another room.
Lentsela, Mogapi, the Plaintiff and the children then proceeded to
this room.
Mogapi attempted to resolve the issue between the
Plaintiff and Lentsela but was not successful. The Plaintiff insisted
on seeing
the Station Commander. He then stepped out to make a call
to the Station Commander. Lentsela thereafter was alone with the
Plaintiff
and claimed that the Plaintiff was verbally abusing her by
calling her "useless" and threatened her by stating that
"she
will show her who the Plaintiff is when she sees her on the
streets." At this stage the Plaintiff also demanded her
documents
from Lentsela. Lentsela refused to give them to her. The
Plaintiff picked up the cap stand and attempted to hit Lentsela with
it.
At this moment Senwedi entered the room and witnessed the
Plaintiff holding the cap stand.
3.2 Lentsela specifically denied
trying to grab the cellphone from the Plaintiff and also denied that
the cellphone fell on the
floor. Lentsela also denied that the door
was closed and that the Plaintiff was prevented from leaving the
room.
4.
Mogapi's
testimony is summarised as follows:
4.1 He testified that Lentsela had
called him to come to the counter as the Plaintiff insisted on seeing
him. He confirmed that
Lentsela was standing on her side of the
counter and the Plaintiff was on the other side where the public
normally stands. Mogapi
noted that the Plaintiff was upset and
overheard the Plaintiff threatening to take the matter further with
Lentsela. Mogapi requested
the Plaintiff and Lentsela to proceed to a
private room in order to resolve the issues.
4.2 In the room Mogapi advised the
Plaintiff that he was the Commander on shift at the time and she
should address the complaint
to him. Since she persisted on seeing
the Station Commander he then left the room to contact the Station
Commander. When he returned
after making the call, he found that the
Plaintiff had already left. In his evidence he testified that at no
stage had he verbally
or physically abused her and moreover there was
no indication of her being "pushed, shoved or handled" by
any Police
officer.
4.3 In cross examination, Mogapi
confirmed that the Plaintiff was speaking loudly and made threats to
Lentsela. He also confirmed
that both Lentsela and the Plaintiff were
upset with each other. He stated that he never asked the Plaintiff to
delete the photo
from her cellphone. He also stated that the
Plaintiff refused to give him an opportunity to resolve the issue. He
was aware, however,
that the documents needed to be certified and
that Lentsela was holding on to them.
5.
Senwedi's
evidence was to the effect that he was at the time in the operational
room and he heard noises coming from another room.
He stepped out and
proceeded to the other room where he found Lentsela and the
Plaintiff. At that time the Plaintiff had the cap
stand in her hand.
He then intervened and he took the cap stand from the Plaintiff. When
he inquired what the issue was and the
Plaintiff did not respond and
left the room with her children. At no stage had he ever assaulted or
detained or verbally abused
the Plaintiff. He recalled that the
Plaintiff was threatening Lentsela to the effect that she "will
sort her out". He
saw Lentsela holding a brown envelope in her
hands.
6.
Captain
Mahongwe's testimony was essentially to the effect that she had no
interaction with the Plaintiff. At the time in question,
she was also
behind the counter near Lentsela and assisting other members of the
public. She further stated that she overheard
Lentsela explaining the
policy regarding the certification of the documents on weekends. An
argument ensued between Lentsela and
the Plaintiff after the
Plaintiff took a photo of Lentsela. Mogapi had come to the counter
and appealed to Lentsela and the Plaintiff
to resolve the issues
privately in a room behind the counters. She did not witness anything
that happened inside the room but she
had seen the Plaintiff leaving
the room. She also noted at one stage that Mogapi had also left the
room. She had never entered
the room at any stage.
7.
Counsel
for the Plaintiff requested the Court to consider the improbabilities
in the defence's evidence. The following submissions
were made on
behalf of the Plaintiff, namely that;
7.1 Independent facts support the
version of the Plaintiff that she was indeed assaulted. The J88
document confirms that the Plaintiff's
clothing was "roughened"
and that the Plaintiff was suffering from dizziness and headaches
following her assault.
7.2 No medical professional would
include any details in their reports or in their statements if those
observations were not made
by them independently.
7.3 Furthermore, the medical report
which was prepared a month after the assault also confirmed the
psychological status of the
Plaintiff arising from the abuse that she
had suffered in respect of this incident.
7.4 The fact that there was no mention
of bruising in the report set out by Dr Tshabala does not mean that
she did not sustain bruises.
The Plaintiff had testified that she
noticed the bruising a day after the incident.
7.5 The defence's version is
implausible on the following basis:
7.5.1. It is very unlikely for a
civilian like the Plaintiff to even consider attacking a Police
officer in the surroundings of
other Police officials;
7.5.2. The evidence of the defence
showed that Lentsela was certainly upset with the Plaintiff and she
had demanded that her photo
be deleted from the cellphone. It was in
fact the aggressive reaction of Lentsela in respect of the photo that
sparked the altercation.
It was Lentsela who was aggressive and not
the Plaintiff.
7.5.3. Lentsela's wants the Court to
believe that she never touched the Plaintiff's body and that she
allowed the Plaintiff to leave
without any further intervention on
her part is highly improbable.
7.5.4. The Plaintiff's intention was
to speak to the Station Commander and it is highly unlikely that she
would have left the Police
station without doing so and more
specifically without taking her original documentation.
7.6 It is on this basis that the
Plaintiff's version is more probable. Lentsela certainly took the law
into her own hands. She took
advantage of the Plaintiff who was alone
in the room with her. She certainly searched the Plaintiff and
removed the cellphone,
thus damaging the cellphone. She further
threatened and refused to allow the Plaintiff to exit the room and
did so with the assistance
of another Police officer.
8.
Counsel
for the defence pointed out following the discrepancies and
contradictions in the Plaintiff's evidence. It was these material
contradictions and differing versions from the pleadings which point
to her testimony being implausible.
9.
9.1. During cross examination the
Plaintiff confirmed that she was physically assaulted by Lentsela
only and not the other Police
officers. This was not in accordance
with the pleadings as counsel had pointed out. In her pleadings she
refers to "Police
officers" who also assaulted her.
9.2. In her evidence she further
stated that the cellphone was damaged, however, if one has regard to
the pleadings namely:
9.2.1. In the letter of demand, the
following is stated:
"........ the cellphone was
broken during the struggle";
9.2.2.
In the particulars of claim, the following was stated:
" .......at which point the
aforementioned member of the SAPS searched the Plaintiff
forcefully, removed her cellphone
and then damaged the device
beyond recognition."
9.2.3. In the Plaintiff's evidence,
she did not testify that the cellphone was damaged beyond recognition
but instead indicated
that the screen was cracked. In her statement,
she makes reference to the following:
".........
.my
cellphone
fell from my hand to the floor and when I picked it up I immediately
discovered that it got cracked on the top left hand
corner."
9.2.4.
In her reply to request for further particulars, in paragraph 17
thereof it was alleged that:
"the screen of the phone
was shattered."
9.3. The Plaintiff's version was not
corroborated by any other witness. There was no reason why she could
not have called the husband,
particularly as he was the first person
who had seen her after the alleged assault and detention. There is
also no reason why the
evidence of her children as well as the
treating doctor should not have been taken into consideration.
10.
It
is common cause that what the Court has before it, are two mutually
destructive versions. The Plaintiff was a single witness
and it is
trite that such evidence must be treated with caution by the Court.
In this regard, I take cognisance of the approach
in
S v Sauls and
Others
1981
(3)
SA 172
a AT 180 E
- G namely that:
"the trial judge will weigh
his evidence, consider its merits and demerits and, having done so
will decide whether it is trustworthy
and whether, despite the fact
that there are shortcomings or defects or contradictions in the
testimony, he is satisfied that the
truth has been told ......... "
11.
Both
the Plaintiff and the Defendant referred this Court to the test that
is to be applied when considering single witness evidence.
It is
trite that the evidence must be satisfactory and need not be perfect.
There could be certain defects and shortcomings in
the evidence. The
proper test is not whether the witness was truthful or reliable in
everything that she said, but whether on the
balance of probability
the essential features of the story which she tells are true.
12.
Having
considered the evidence, this Court makes the following findings:
12.1. There is no doubt that the
Plaintiff was upset in respect of the policy regarding the
certification of her documents and there
is further no doubt that she
confronted Lentsela in respect of this. Her demeanour in demanding to
see the Station Commander and
then the second in charge further
demonstrated her insistent attitude. It was this attitude which
caused Lentsela to become upset
with the Plaintiff. Lentsela would
also not have remained calm, especially after being insulted by the
Plaintiff at the counter
as well as in the room. Mahongwe testified
that the two were already arguing at the counter.
12.2. The inference that this Court is
able to draw is that both women were upset with each other and there
was in all probability
an unpleasant exchange of words between them.
12.3. What further aggravated the
situation was that Lentsela refused to hand over the original
documents to the Plaintiff which
angered the Plaintiff more.
12.4. Furthermore, the Court finds it
highly unlikely that Lentsela would have gone to the other side of
the counter and in full
view of the public attacked and assaulted the
Plaintiff. It is more probable that if there was an assault it would
have happened
in the room, out of the view of the public. If such
assault had taken place in the public eye, the Plaintiff should have
at least
presented such corroborating evidence from a member of the
public who witnessed this assault.
12.5. Captain Mogapi appeared to be a
credible witness and the Court is satisfied with his testimony
particularly to the effect;
that he had tried to settle the dispute
between the parties, that both parties were visibly upset with each
other; that Lentsela
had the envelope containing the Plaintiff s
original documents; that he had attempted to resolve the matter but
the Plaintiff had
not given him an opportunity and demanded to see
the Station Commander and that he had left the room in order to
contact the Station
Commander. He never witnessed any verbal or
physical abuse on the part of Lentsela. He also confirmed that when
he came to the
counter initially, the Plaintiff was already at that
stage insulting Lentsela.
12.6. I however do find it improbable
that he was not aware that Lentsela had demanded that her photo be
removed from the Plaintiff's
cellphone or that Lentsela had not made
this demand in the room before him. His evidence that he had offered
to certify the Plaintiff's
documents is corroborated by the
Plaintiff. The problem was that Lentsela refused to hand over the
documents to the Plaintiff.
13.
13.1. The point of dispute turns on
what had actually transpired between the time Mogapi left the room to
the time the Plaintiff
left the room. The two questions remain: was
the Plaintiff assaulted by Lentsela and secondly was the door closed
which caused
the Plaintiff to be detained?
13.2. Captain Mogapi in his evidence
testified that in the event that the Plaintiff was assaulted by
Lentsela he would certainly
have had knowledge thereof and he would
have had to ensure that the relevant procedures are followed when an
officer assaults a
member of the public.
13.3. There was no reason for this
Court to doubt Senwedi's testimony particularly that he was on the
day in question on duty and
was in the building. When questioned as
to why his name was not on the register, his response was that he was
in the crime prevention
group, which has a separate register and such
register was not discovered. Furthermore, Senwedi was identified as
one of the Police
officers who assaulted the Plaintiff (as per her
reply to the request for further particulars).
13.4. Senwedi testified that when he
approached the room the door was open and he found the Plaintiff
holding the cap stand and
attempted to assault Lentsela. When he
confronted her, she ran out.
13.5. This is in accordance with the
Plaintiff's testimony, that as she ran out there was another Police
officer who verbally abused
her. Senwedi also further confirmed that
he did not notice any visible injuries to the Plaintiff's body nor
had he seen Lentsela
assaulting the Plaintiff at any stage. He
further confirmed that he saw the Plaintiff pointing fingers at
Lentsela and insulting
her.
13.6. During the Plaintiff's
testimony, she identified a female officer with "two stars".
When Captain Mahongwe testified
she admitted that she had "two
stars" and at the time she was on duty. She was also at the
counter assisting other members
of the public. She overheard the
conversation between Lentsela, Captain Mogapi and the Plaintiff and
she was also aware that they
had gone into the room. However, this
Court does not find her written testimony credible in that it was
highly improbable that
she could be assisting members of the public
at the counter and at the same time she was able to overhear the
conversation in the
room between Lentsela, Mogapi and the Plaintiff.
She particularly testified that Captain Mogapi told the Plaintiff to
wait for
the Station Commander so that the problem could be solved.
13.7. However, the Court finds no
evidence that Mahongwe was present in the room with Lentsela and
harassing the Plaintiff. Senwedi
only found Lentsela and the
Plaintiff in the room when he heard the noise.
13.8. Senwedi testified that the door
of the said room was open. Mogapi did not testify that the door was
closed when he left the
room.
13.9. The only evidence immediately
after the incident is the J88 report which records the following:
"The above named young
woman presented with history of severe headache and dizziness
following being assaulted at the Police
Station this day. On
examination she was apprehensive with elevated pulse rate."
Under conclusion the following was
recorded "headache and dizziness." At this juncture, it
must be that the cause of the
patient's condition was communicated to
the said doctor when he completed the form, namely that she was
assaulted at the Police
Station.
13.10. Counsel for the Plaintiff
pointed out to the Court that her appearance was considered by the
practitioner as "roughened".
The conclusion of her
diagnosis was that she had a headache and experienced dizziness.
There was no physical examination in respect
of any injuries she
sustained in this report.
13.11. Although I find it improbable
that Lentsela was calm at all times, I find it equally improbable
that the Plaintiff was physically
assaulted by Lentsela. also further
find it highly improbable that the door was closed at the time and
that the Plaintiff was detained.
The testimony of Senwedi and
Mogapi has a bearing on my findings.
13.12. The further discrepancy which
exists concerns the damage to her cellphone. Such damaged cellphone
is not an exhibit before
this Court. Hence I am not in a position to
determine whether the screen was just cracked or whether it was
damaged beyond repair.
13.13. In respect of her being
accosted in the public area, when asked in the request for further
particulars as to the details
thereof, it was stated that it is "a
matter for evidence." The Plaintiff's testimony in respect of
this incident was
not corroborated by anyone, particularly by an eye
witness from the public also standing in the queue. Moreover Mogapi
testified
that when he was called to the counter, the Plaintiff was
standing on the side where the public normally stands.
14.
A
day later, the Plaintiff had indeed consulted Dr Tshabala who
identified that she was suffering from major depressive disorder
and
post-traumatic stress disorder. These reports are noted by this
Court, but I am not convinced that it was due to the Plaintiff
being
a victim at the hands of the Police. The entire episode was sparked
off by the Plaintiff's confrontational attitude when
entering the
Police Station on the day in issue. Despite the presence of many
Police officers, the Plaintiff had the confidence
to confront
Lentsela in the manner she did. On the same token, it is unbecoming
for Police officers like Lentsela to have refused
to return the
original personal documents to the Plaintiff.
15.
Having
considered the evidence before me as well as the pleadings, I make
the finding that the Plaintiff failed to prove her case
on a balance
of probabilities that she was indeed assaulted and
unlawfully detained by the
officials of
the Defendant during the course and scope of their
employment.
16.
I
therefore make the following order:
1. The Plaintiff's claim against the
Defendant is dismissed with costs.
____________________
H
KOOVERJIE
ACTING
JUDGE OF THE
GAUTENG
DIVISION
APPEARANCES:
For
Plaintiff:
Adv B Anderson
Instructed
by: Mokoduo Attorneys
For
Defendant: Adv Mothibedi SC
Instructed
by: The State
Attorney