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[2015] ZAGPPHC 317
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Daniels and Others v Minister of Police (50047/2012, 50055/2012, 50049/2012,50050/2012) [2015] ZAGPPHC 317 (26 February 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
/ES
(
GAUTENG
DIVISION. PRETORIA)
CASE NO: 50047/2012
50055/2012
50049/2012
50050/2012
DATE: 26 February
2015
Not reportable
Not of interest to
other judges
IN THE MATTERS
BETWEEN
JONATHAN
DANIELS
...........................................................................................................
1
ST
PLAINTIFF
JONATHAN
CONSTABLE
.....................................................................................................
2
nd
PLAINTIFF
EVERT
FARO
..........................................................................................................................
3
rd
PLAINTIFF
ADAM
FARO
...........................................................................................................................
4
TH
PLAINTIFF
AND
THE MINISTER OF
POLICE
...................................................................................................
DEFENDANT
JUDGMENT
PRINSLOO. J
[1] The four
plaintiffs, in separate actions, claim damages from the defendant
Minister for alleged assaults on them by members
of the police,
acting within the course and scope of their employment with the
defendant, during an incident which occurred in
Porterville, in the
Western Cape, on Friday 1 June 2012. At the commencement of the
proceedings, I granted an application by the
plaintiffs, which was
unopposed, consolidating the four actions in terms of the Uniform
Rules of Court. In terms of the order made,
I would give one judgment
disposing of all the matters and costs of the consolidation
application would be costs in the cause.
[2] Before me, Mr De
Beer appeared for the plaintiffs and Ms Cronje for the defendant.
Introduction and
brief synopsis of what the case is about
[3] The first, third
and fourth plaintiffs ("Daniels", "E Faro" and "A
Faro") live in a house situated
at 49 Eike Street, Porterville.
It is a so-called "semi-detached" house or "skakelhuis".
It is one house consisting
of two units, separated by a wall with a
door in.
[4] There is some
uncertainty in the evidence, but it seems that the house belongs to E
Faro who is the brother of A Faro.
When the trial came
before me, E Faro was about 46 years old and A Faro about 44 years
old. Daniels stays with them and he is about
27 years old.
[5] Constable, a
friend of the other plaintiffs, stays in Piketberg where he lives
with his mother at 104 Noupoort Street. When
the incident, to which I
have referred, took place on Friday 1 June 2012, Constable was
visiting his three friends in Porterville
for the week-end which
started on Friday 1 June 2012. At the time of the trial, Constable
was about 44 years old.
[6] The four friends
are all members of the so-called Rastafarian movement. Amongst other
customs, they do not cut their hair, which
they wear long and in
so-called "dreadlocks".
[7] Without
intending to offend the plaintiffs, it is fair to say that, on their
own evidence, they were not big money earners.
They worked in the
informal sector, namely selling fruit and vegetables and scrap metal.
With regard to the last-mentioned activity,
A Faro, for example,
registered a business as a scrap metal dealer.
Initially, the
plaintiffs instituted modest claims for loss of earnings, but it
appears that these claims have been abandoned, with
the exception of
a claim of some R2 000,00 by A Faro.
They also claimed
compensation for medical expenses but, similarly, these claims have
been abandoned and the plaintiffs, themselves,
testified that they
relied on their own mixtures of herbs and medication they bought over
the counter at the pharmacy to treat
themselves for the injuries
sustained during the alleged assaults.
[8] During the
trial, bundles were produced, notally in the form of exhibits "A",
"C" and "D", showing
pictures of the injured
plaintiffs and also pictures of damages to the house at 49 Eike
Street, allegedly caused by the police.
Exhibit "B"
is a bundle produced by the defendant, containing relevant
documentation, including statements to the police
and J88 medical
forms.
[9] As to the
evidence, which is, as I will explain, undisputed for practical
purposes, all the plaintiffs testified that the police
forcibly
entered the house at 49 Eike Street at about 05:00 on Friday 1 June
2012, ostensibly in the process of conducting a raid
or a search,
mainly for drugs. According to all the plaintiffs, they were
assaulted in the process. The assaults followed, generally,
the same
pattern: the bed on which the still sleeping plaintiff was lying, was
overturned with the plaintiff. On the ground, the
plaintiff was
stamped upon, kicked and punched. Foul language was used and threats
were uttered. The raid did not last much longer
than about half an
hour. E Faro, who occupied the separate "house" from that
occupied by A Faro and Daniels, was also,
forcibly, ejected from his
house and forced to lie with his head between the legs of his brother
A Faro. Derogatory language was
used.
[10] The injuries
allegedly sustained included injured (swollen) limbs such as hands
and legs, broken lips, swollen eyes and internal
injuries caused by
punches and kicks.
[11] Charges were
laid by all the plaintiffs on the same day, later on the Friday. The
plaintiffs had difficulty getting medical
treatment. At the hospital
they were told that the resident doctor was on leave and private
doctors in Porterville would not assist
them. They only managed to
have the medical forms (J88 forms) filled in about three weeks later,
on about 19 June 2012. At that
stage some of the injuries were no
longer visible but others are noted on the J88 forms.
[12] During the
assaults, some of the plaintiffs had their dreadlocks forcibly cut
off with scissors by the police officials. This
was painful and
humiliating. There is photographic evidence to support these
allegations by the plaintiffs.
[13] The defence
only called one witness, Captain Marikus van den Heever ("Van
den Heever"). He was the commander of a
Tactical Response Team
("TRT") tasked with performing drug raids at a number of
addresses including addresses in Porterville.
He confirmed that the
doors of 49 Eike Street were breached and the plaintiffs were
accosted in their rooms and brought down to
the floor. He was
"roaming" the premises and did not witness everything that
happened.
[14] It is clear,
and common cause, that the police were acting within the course and
scope of their employment with the defendant
when the raid took
place.
[15] At the
commencement of the proceedings, I was also informed that earlier
differences between the parties about whether or not
the claims were
timeously lodged in terms of the requirements of Act 40 of 2002 had
been resolved.
[16]
The questions left for decision are whether or not the plaintiffs
were assaulted so that they are entitled to claim compensation
and,
secondly, what the
quantum
of
the claims ought to be.
Brief notes about
the pleadings
[17]
The claims are, for practical purposes, crafted in identical terms in
respect of the four cases. Details of the alleged unlawful
assaults
are pleaded, the allegation is made that the police acted within the
course and scope of their employment and also that
this court has
jurisdiction to entertain the claims. Details of the
sequelae
are
pleaded, eg that the particular plaintiff was unable to work for a
certain time, incurred medical expenses and claims compensation
for
contumelia
which
is the bulk of the claim running to some R296 000,00 on average. In
the latter regard, it can perhaps be argued, on a highly
technical
basis, that the term
contumelia
is
too narrow for purposes of this action.
Contumelia
relates
to the infringement of the plaintiffs right to privacy, dignity and
reputation - see Harms,
Amler's
Precedents of Pleadings
7
th
ed p22 and the authorities there quoted. Of course, a claim for
damages for
contumelia
is
directly relevant to the circumstances of this case, as illustrated
in the introduction, but, as I understand the position, the
whole
claim for compensation resorts under the
actio
iniuriarum
which,
in any event, encompasses not only an infringement of dignity or
privacy or reputation but also an aggression upon the plaintiffs
person - see
O'Keeffe
v
Argus Printing
& Publishing Co Ltd
1954
3 SA 244
(C) at 247C-E. See also, generally, Neethling, Potgieter
& Visser
Law
of Delict
6
th
ed pi 2-15.
In any event,
nothing turns on this. No argument was presented on behalf of the
defendant to suggest that the particulars of claim
may be crafted too
narrowly.
[18] The plea in
each case is a very concise affair. In one case (that of Constable)
there is a special plea relating to Act 40
of 2002 which issue, as I
have pointed out, has been resolved.
[19]
The plea on the merits is quite straightforward: formal issues such
as details of the defendant and the question of jurisdiction
are
admitted. All the allegations relating to the alleged assault, the
sequelae
of
the injuries and the
quantum
are
met with a bare denial which reads as follows:
"The defendant
denies the allegations contained in these paragraphs and accordingly
puts plaintiff to the proof thereof."
No effort was made
to, for example, offer a particular defence, ground of justification
or the like.
Brief summary of
the evidence
[20] I have already
described the evidence of the plaintiffs by giving a broad outline of
what, according to them, happened early
in the morning on 1 June
2012. I have mentioned the location where it happened and the basic
details of the alleged assaults. All
the witnesses present,
essentially, the same broad version and, to that extent, they
corroborate each other.
[21] For purposes of
this brief summary, I will not embark upon unnecessary repetition,
but only mention brief details which may
be of relevance in respect
of each individual plaintiff. I will also, in slightly more detail,
consider the evidence of Captain
Van den Heever.
(i)
Adam
Faro (fourth plaintiff)
[22] He was a fruit
and vegetable hawker at the relevant time and he also owns the scrap
metal business which is duly registered.
He earns between R2 000,00
and R2 500,00 per week. Often he earns more than that.
[23] Exhibit "A",
photograph 5(a) depicts the kitchen door, the top portion of which
was broken in half by the police
when they entered. He is not
claiming additional compensation for this damage. The door was broken
into three pieces.
[24] The police that
came in were wearing black uniforms, helmets and balaclavas. Some
wore blue uniforms. He saw no name-tags.
After he was thrown to the
ground he was ordered to lie flat on the ground, with his hands
behind his head. They had firearms.
He saw "short" and
"long" weapons. After he fell, they stepped on him and
kicked him. They told him that he
was not allowed to look up. He had
a great fright and he was anxious. They asked him where the dagga and
the drugs were and he
said he had none. He was kicked and trampled on
continuously. One policeman stood on his neck with both feet. He was
continuously
kicked against his torso and had wounds in the rib area
and he was also kicked on his private parts. They pulled up his head
by
grabbing his hair. He was crying like a child. It was his own hair
which he had been growing, as a Rastafarian, for about fifteen
years.
He has been a Rastafarian for about twenty five years.
[25] He saw no
search warrant.
[26] No dagga or
drugs were found on his person or in his house or on any of the other
plaintiffs. This is common cause.
[27] The police also
had torches which they flashed in his face to blind him.
[28] He also
recognised some of the local police of Porterville. There was a
Constable Diedericks, female Constable Syster and Constables
Abrahams
and Swarts. Abrahams and Diedericks were in the house during the
assault. Abrahams told him that he did have a search
warrant but kept
it back. It was signed by Captain Truter at the Saron police station.
Abrahams told him (this of course, is hearsay
and was not objected
to) that he decided to hold back the warrant and will be prepared to
testify on behalf of the plaintiffs.
Other witnesses also said that
Abrahams said he would testify for the plaintiffs.
[29] Contents of
cupboards were thrown out.
[30] His brother
Evert Faro (the third plaintiff) was brought in and ordered to lie
down with his head between the legs of this
witness in a "truck
and trailor" fashion. He was hit and kicked on an ongoing basis.
He was told to stay on the ground
and the police said they did not
want to hear him breathe.
[31] They went to
the police on the same day. Initially the police did not want to take
their statements but did so later.
[32] On the same day
they went to the doctor and at the hospital they were told that the
resident doctor was on leave for two weeks.
The private doctors in
the town would not help them. The J88 forms were only completed after
some weeks. X-rays were taken.
[33] He lives in
fear. The police come to his house and threatened him. He thinks that
he suffers from shock. He does not sleep
well. He cried during the
attack and he suffered pain for a long time. In cloudy weather the
pain returns in certain areas.
[34]
As to the
quantum
of
his claim for loss of earnings, he testified that he could not work
for two weeks because of the pain. He has two children that
are
dependant on him and that are school-going. He lost income to the
tune of at least R2 000,00 during the period of inactivity.
[35] Exhibit "A",
photo 1(a) shows the state of the kitchen after it had been searched
by the police. Things are lying
all over the place and it can be
described as a total mess. None of these photos are disputed and it
was agreed that they represent
what they purport to be, without
requiring any additional proof.
1(b) of exhibit "A"
shows this witness with lengths of his dreadlocks that were cut off
by the police. Photo 2(a) shows
a mark on the right side of his ribs
on the lower torso where he was kicked and 2(b) shows marks on his
left side.
Photos 4(b) and 5(a)
show the badly broken kitchen door.
[36] This witness
was not discredited at all in cross-examination. He testified about
the steps they took afterwards to lay charges
and to get medical
examination. He was shown a search warrant (exhibit "B34")
but insisted that this was not shown to
them and that Constable
Abrahams told him that it was held back.
[37] He repeated
that he was not claiming compensation for the broken door which he
repaired himself. He used his own herbs for
treatment for the
injuries and the pain and admitted, quite honestly, that he did not
spend money on medication.
[38] In my view,
this was a credible and impressive witness.
(ii)
Jonathan
Daniels fthe first plaintiff)
[39] He confirmed
that he stayed with the Faro brothers and helped them with the scrap
metal and the fruit and the vegetables. He
has no other employment.
He is also a Rastafarian and he is not allowed to cut his hair, in
terms of that particular religion.
[40] He heard a
noise when the police broke the door and was thrown to the ground
with his bed that was also overturned.
[41] He was told to
lie with his hands behind his head. The search revealed nothing. He
was trampled on and kicked. The police wore
masks and police
uniforms. He recognised the one Porterville police woman, Constable
Antjie. He was asked about dagga, Tik, Mandrax
and so forth. Nothing
was found and he does not use those substances. He explained to them
about the ground (minced) herbs that
they found in a bag.
[42] The police then
found a pair of scissors and started cutting off his hair. The
scissors broke. He was held down by three males
and one female
policemen. It was his own hair. It was painful when it was cut. He
was crying and his scalp was burning. They told
him to get up and
shone the torches in his eyes. He was hit twice in the face with the
fist. His mouth was broken on the inside.
His left ankle was injured
where he was stepped on. It was painful and he could not walk
properly. They could only see the doctor
after some time. The J88,
B13 and further, dated 19 June 2012, still shows the bruise on the
left leg. It was endorsed "injury
probably due to blunt trauma".
[43] He got a great
fright. He lives in fear. He does not sleep well. The police had
firearms. He still does not feel quite himself
even at this stage
years after the attack. The incident still repeats itself in his mind
from time to time.
[44] Exhibit "A"
photos 3(a), 3(b) and 4(a) depict the witness carrying a handful of
his hair that was removed by the
police. He also illustrates the area
on his head where the hair was cut off. He could not work for about
two weeks. During that
period he earned no income.
[45] He was not
discredited in cross-examination. The police initially would not
entertain the charge. Later one Detective Esau
came to the home and
took statements. He repeated the evidence about being kicked and
trampled upon and held down when his hair
was cut. It was extremely
painful when he was kicked. There was still a mark on his ankle. He
again mentioned the two blows in
the face with the fist. He was
blinded with a torch. When the scissors broke, each policeman took
one of the blades and used that
to cut the hair. The private doctors
would not help them.
[46] He impressed me
as a credible witness.
(iii)
Jonathan
Constable (the second plaintiff!
[47] I have
mentioned that he stays in Piketberg but was only visiting for the
week-end. He has two children. He also sells fruit
and vegetables,
which he plants himself and earns about R1 000,00 per month.
[48] When he was
thrown to the ground with his bed he was kicked and trampled upon.
The police or some of them had masks on. He
was told not to look up.
The door was broken.
[49] His hand was
injured and he was kicked a few times on his coccyx. It was the left
hand that was injured and for a while he
could not move the hand. The
house was ransacked. He slept in the kitchen. On the floor was a drum
containing warm coals from the
previous evening. He was not burnt by
the coals.
[50] The police
initially would not help them neither could they get the J88 forms
completed at the hospital. Exhibit "Cl"
is a photograph of
his swollen hand.
[51] He is also a
Rastafarian. He felt that his life was in danger. He was terrified.
He is still in a state of panic at times.
The incident repeats itself
in his memory. For a month, he could not work.
[52] He was not
discredited in cross-examination. He was honest enough to admit that
a photo of his upper torso, "C2",
may have been taken
before the 1 June incident. He was kicked and trampled on repeatedly.
Police walked over him. He had to protect
his face with his hands. No
search warrant was exhibited to him.
[53] He could not
work because of the injury, particularly to the hand. He used his own
herbs for medicine.
[54] He struck me as
a satisfactory and honest witness.
(iv)
Evert
Faro (the third plaintiff)
[55] He has been a
Rastafarian for about fifteen years and staying at the Eike Street
address for about fifteen to sixteen years.
As I mentioned, he lives
in the back portion and his brother Adam and Daniels in the front
portion.
[56]
He heard the police making a noise at the door separating the two
portions of the house. He opened the door and saw police
with masks,
wearing uniforms and holding torches and firearms. Some police were
wearing black balaclavas. He was ordered to lie
"on your
stomach, mother fucker". They trampled
him
against
his lower legs to force him to the ground. When he laid on his
stomach, he was kicked and trampled on. He had to lie face
downwards.
He was sworn at and insulted. They referred to his mother's private
parts.
[57] He was then
taken to the front part of the house and told to lie behind his
brother Adam with his head between Adam's legs.
He was kicked against
his side and they stood on his lower legs and lower back ("kruis").
He was kicked on the mouth
and on the eye. His mouth was broken and
his eye was swollen. He was ordered to stay on his stomach. Exhibit
"A5(b)"
shows the badly broken lower lip and swollen left
eye. There was blood on the ground where he was lying.
[58] "B29"
is the J88 dated 19 June 2012. It still depicts abrasions of the leg
and thigh and is endorsed "wounds
at various stages of healing".
The conclusion is "injuries probably due to blunt trauma".
[59] At the time,
his only income was from the proceeds of the sale of the fruit and
vegetables and scrap metal with his brother.
[60] He experienced
this as a nightmare. Nothing like this had ever happened to him. It
still comes back in his memory. He still
lives in fear and wakes up
at night in a sweat.
[61] He was not
discredited in cross-examination. He described again how he was
assaulted. The police dug their heels into his ribs
and other soft
portions of his torso when they kicked him. No warrant was shown to
him. When he was lying behind his brother Adam
the latter was also
kicked very hard.
[62] After the
plaintiffs had testified, they closed their consolidated cases.
(v)
Captain
Marikus van den Heever ('"Van den Heever"
-
)
[63] I have already
referred to him briefly in the introduction. He was the commander of
the Tactical Response Team ("TRT").
His team was assembled
to penetrate certain houses in towns in the area including Ceres,
Porterville and Piketberg.
[64] Importantly, he
confirmed that he sat in court the whole time while the plaintiffs
were testifying.
[65] He testified
about the equipment used by his team. This includes crow-bars, a
bolt-cutter, a "hooligan" tool, a "stompie",
a
hammer, a ladder and other articles. They also carry handcuffs, tie
straps, torches and R5 firearms. At times also 9mm hand weapons.
[66] He said they
got the Porterville police to obtain a search warrant. This could be
the one testified about which was allegedly
held back by Constable
Diedericks.
[67] He confirmed
that the doors were breached. He said the interlinking door to Evert
was also breached although Evert said that
he had opened it himself.
[68] When it was put
to him that all the plaintiffs testified that they were assaulted,
kicked and punched he answered "I can't
be everywhere at the
same time. I have people with me. That's why I roam to see all the
time, nothing illegal." He said he
did not see any assaults
being perpetrated.
[69] He confirmed
that nothing was found in the form of drugs and other unlawful
substances.
[70] He would not
comment on the graphic photos in the bundles, particularly exhibit
"A". All he said was that no assaults
were reported to him.
He conceded that, with his roaming, things may have happened which he
did not see. When he was asked, in
cross-examination, whether he
disputed that injuries were perpetrated, he said it was possible, but
it was not reported to him
and he did not see anything. When it was
put to him that all the plaintiffs were very fearful and scared he
answered that he would
also have been scared in their position.
[71] He was not even
present when the first door was breached. Generally, he seems to have
been roaming quite a lot and seeing relatively
little. He did not see
the degrading action of making Evert put his head between Adam's
legs. It is inherently improbable that
they would have fabricated
such an unusual state of affairs. At one stage he said "I don't
personally search or breach, I
am the commander".
[72] Importantly, he
was cross-examined about the fact that not one of the plaintiffs, in
cross-examination, was confronted with
the defence version, such as
it is, neither was the version of any of the plaintiffs disputed in
cross-examination. He was asked
why he did not correct his counsel as
he was sitting in court all the time. He said that he cannot speak
for his counsel.
[73] After Van den
Heever testified, the defence case was closed.
Considering
the applicable legal issues, including the question of
onus
[74] In each of the
four summonses, it is alleged by the particular plaintiff that he was
"unlawfully assaulted" by members
of the South African
Police Services. Details of the assault are also pleaded.
[75]
In her comprehensive heads of argument, Ms Cronje appears to submit,
if I understand her correctly, that the plaintiffs have
to prove that
the policemen had the requisite intention to cause harm. It is not
clear whether counsel argues that the pleadings
are inadequate where
only unlawful assault is alleged and not the necessary intention to
cause harm. If that is the argument, then
it is defeated, in my view,
by counsel's own reference to
Mabaso
and others
v
Minister of Police
and another
1980
4 SA 319
(W) where the following is said at 323H-324A:
"The
characterisation of the alleged conduct of the second defendant as
'assaults' in the original particulars of claim clearly
carries with
it an implicit allegation of intentional conduct on the part of the
second defendant."
I
already touched briefly on the subject when dealing with the concepts
of
contumelia
and
the
actio-iniuriarum.
Harms,
Amler's Precedents
of Pleadings,
at
51, also points out that the allegation of an "assault"
implies wrongfulness. The learned author refers to
Bennett
v
Minister of Police
and another
1980
3 SA 24
at 34H-35A where the following is said:
"Prima
facie
it
seems to me that if a plaintiff alleges a violent assault upon him,
he is alleging an unlawful and violent physical attack upon
him which
would in the normal course involve an element of
contumelia
deliberately
inflicted."
The learned author
also points out, at 51, that -
"It
is trite law that every infringement of the bodily integrity of
another is
prima
facie
unlawful.
Once infringement is proved the
onus
rests
on the wrongdoer to prove some ground of justification."
-
See
Moghamat
v
Centre Guards CC
[2004]
1 All SA 221
(C) at 224a.
The learned author
also points out that -
"It
is for the plaintiff to establish the fact of physical interference.
Accordingly, the plaintiff must allege and prove facts
which
prima
facie
and
objectively indicate such a wrongful act."
In my view, the
plaintiffs succeeded in crossing this hurdle, both in their pleadings
and in their uncontested evidence. The details
of the assaults,
uncontested in cross-examination, speak for themselves.
[76]
As to
onus,
the
learned author points out that "the
onus
of
alleging and proving an excuse or justification for the assault rests
on the defendant" - see the authorities referred to
at 51. In
this case, as I have pointed out, no such justification or excuse was
pleaded and the defendant only offered a bare denial.
No
justification or excuse was put or suggested to any of the plaintiffs
when they testified.
[77]
Against this background, Mr De Beer, in his detailed heads of
argument, submitted that once an infringement of the bodily integrity
of the plaintiffs is established, it is
prima
facie
unlawful
and intentional, and in the absence of any defence or grounds of
justification should lead to a finding in favour of the
plaintiffs in
respect of the merits of each of the claims. With that submission I
agree.
[78]
In this particular case, where no contesting version was put to any
of the plaintiffs in cross-examination, and where their
evidence on
the assaults and the details thereof was not in any way challenged in
cross-examination, Mr De Beer, correctly, referred
to the well-known
case of
Small
v
Smith
1954
3 SA 434
(SWA) where the following was said at 438E-H:
"It is, in my
opinion, elementary and standard practice for a party to put to each
opposing witness so much of his own case
or defence as concerns that
witness and if need be to inform him, if he has not been given notice
thereof, that other witnesses
will contradict him, so as to give him
fair warning and an opportunity of explaining the contradiction and
defending his own character.
It is grossly unfair and improper to let
a witness' evidence go unchallenged in cross-examination and
afterwards argue that he
must be disbelieved.
Once a witness's
evidence on a point in dispute has been deliberately left
unchallenged in cross-examination and particularly by
a legal
practitioner, the party calling that witness is normally entitled to
assume in the absence of notice to the contrary that
the witness'
testimony is accepted as correct. More particularly is this the case
if the witness is corroborated by several others,
unless the
testimony is so manifestly absurd, fantastic or of so romancing a
character that no reasonable person can attach any
credence to it
whatsoever.”
In my view, these
principles apply exactly to the present case.
With respect,
efforts by Ms Cronje, in her heads of argument, to suggest that these
principles can be overlooked for purposes of
this case, are strained
and artificial. Her submission that "in some respects the
evidence of the plaintiffs was of so romancing
a character that
cross-examination thereon would prove futile" is unfounded and
rejected out of hand.
[79]
In all the circumstances, and for the reasons mentioned, I am
satisfied that a proper case was made out by all the plaintiffs
that
they were unlawfully and intentionally assaulted by the police
officers acting within the course and scope of their employment
with
the defendant. The defendant failed to discharge the
onus
resting
upon him.
[80]
The other outstanding formalities, initially the subject of a special
plea, have also been resolved, as I pointed out. What
is left, is to
consider the
quantum
of
the claims.
The
quantum
of
the claims
[81] Determination
of an appropriate award for non-patrimonial loss, as in this case, is
in the discretion of the court.
However,
courts have, over the years, taken account of corresponding awards
made in comparable cases and used such awards as a guideline.
Indeed,
over decades, these awards have been recorded in the well-known work
of Corbett and Buchanan (later Corbett and Honey)
The
Quantum of Damages in Bodily and Fatal Injury Cases.
[82]
In
De Jongh
v
Du Pisanie NO
2005
5 SA 457
(SCA) the following is said at 477A-D:
"Volgens
hierdie benadering is die beginsel juis dat die vasstelling van
nie-patrimoniële skade in die diskresie van die
hof is. By die
uitoefening van die hof se diskresie is vergelyking met toekennings
in vorige sake 'n nuttige hulpmiddel omdat dit
darem vir die hof die
breë parameters ofte wel 'n patroon aandui waarbinne sy
toekenning tuisgebring moet word. Dit is ook
'n nodige riglyn omdat
konsekwentheid in toekennings 'n inherente vereiste van billikheid
is. Nietemin bly dit steeds 'n riglyn.
Dit vervang nie die hof se
diskresie met 'n letterknegtige gebondenheid aan die aangepaste
waarde van vorige toekennings nie."
[83]
With regard to the "aangepaste waarde van vorige toekennings",
it has become common practice to calculate and adjust
earlier awards
by taking inflation and other factors into account. For this purpose,
the well-known author and actuary, Robert
J Koch, issues his
Quantum
Year-book
every
year. This contains the up to date adjusted figures to reflect the
present value of older awards.
[84]
In addition, it has recently become recognised that courts are now
inclined to make more generous awards than in earlier years.
This
tendency and approach were recognised in
Road
Accident Fund
v
Marunga
2003
5 SA 164
(SCA) at paragraphs
[27] and [34],
In
De Jongh,
at
477D-G, the learned Judge of Appeal, with reference to
Marunga,
cautions
that this tendency to make more liberal awards cannot be applied with
mathematical precission. The learned Judge of Appeal
says the
following:
"Die stygende
tendens van toekennings in die onlangse verlede is, soos ek alreeds
gesê het, duidelik waameembaar. Die
effek daarvan is egter weer
eens nie met matematiese presiesheid bepaalbaar nie. Dit is nie seker
presies wanneer die tendens begin
het en wanneer dit sal eindig nie.
Dit het bes moontlik reeds tot 'n einde gekom. 'n Bepaalde toekenning
uit die verlede waama
verwys word kon dus reeds met inagneming van
die tendens geskied het. As die vorige beslissing wat as maatstaf
dien reeds met inagneming
van die stygende tendens gemaak is, kan dit
nouliks geregverdig word om op grond van dieselfde oorwegings sonder
enige bykomstige
rede 'n verdere styging toe te laat. Daarbenewens
verg die tendens klaarblyklik nie die vermenigvuldiging van vroeëre
toekennings
met 'n vooraf bepaalde of bepaalbare faktor nie. Op die
ou end is die tendens maar net nog 'n oorweging wat die hof
geregverdig
is om in ag te neem wanneer hy, by die uitoefening van sy
diskresie, na vorige toekennings, veral in ouer sake, as riglyn
verwys."
Despite these
cautionary remarks, it is clear that it is now recognised that the
court, in determining an appropriate award, can
properly take earlier
comparable awards into account as a guideline and also recognise the
tendency to make more liberal awards
as a further consideration to
put into the scale.
[85] With the
aforegoing in mind, I take some of the comparable awards into account
which I was referred to by counsel.
[86]
An appropriate case, which, in my view, ought to be considered, is
that of
Peterson
v
Minister of Safety
and Security
recorded
in Corbett and Honey,
op
cit,
volume
6 at K6-1 (judgment in the Eastern Cape High Court on 23 September
2009).
The injured person
was a 33 year old male seasonal fruit picker.
The synopsis of the
injuries sustained and after-effects are summarised as follows by the
learned authors:
"Unlawful
arrest and detention. Also: assault. The plaintiff was assaulted in
his home by a group of policemen having forcibly
entered the house.
He was punched in the face and had pepper-spray sprayed in his face.
He was then dragged from his house in only
a pair of shorts and taken
to the police station. No steps were taken, either at his home or at
the police station, to decontaminate
his face from the effects of the
pepper-spray. At the police station he was assaulted again by a
policeman who punched
him
in
the face, kicked him on the jaw and hit him on the back a number of
times with a baton or stick. He was ordered to clean up his
own blood
from the floor but refused to do this. The policeman, while pushing
the plaintiff to the cells, kicked
him
in
the back. He was locked in the cell with three other men. He was
forced to sleep on a slab of concrete without a mattress and
without
blankets. At about 04:00 the next day he was released. He walked home
and was examined at hospital the same day. The form
completed by the
examining doctor reflected a wound on the upper left side of the head
that was bruised and tender as well as a
wound on the upper left jaw
that was tender. 'Wide-spread tram-like abrasions' of varying sizes
were found on his back from the
shoulder blades down to the buttocks.
Pain-killers and sleeping pills were prescribed. The plaintiff
suffered severe pain for a
few days. Even though the pain began to
dissipate, he remained in pain for a few weeks, requiring him to
obtain more pain-killers
from the local clinic."
In his judgment, the
learned Judge recorded that there was no indication that the
plaintiff had suffered any permanent injury.
[87] In damages for
the unlawful arrest and detention, the plaintiff was awarded R60
000,00.
In damages for the
assaults the plaintiff was awarded R120 000,00.
In
terms of the
Quantum
Year-book
for
2014 by Robert Kogh, the award of R120 000,00 for assault is now
adjusted to an amount of R156 000,00.
[88] There is some
resemblance between the injuries sustained by plaintiff Peterson and
those sustained by the plaintiffs: in both
cases the victims were
punched and kicked repeatedly. In both cases injuries were sustained,
be it bruises to the head and jaw
(Peterson) or a swollen hand,
broken lip, swollen eye, dislocated ankle and other bruises (in the
case of the plaintiffs). In neither
case was there an indication of
permanent injury. Mr Peterson also said that he was disillusioned
with the police. The same applies
to the other plaintiffs. In both
cases the homes of the victims were broken open by the police and
they were assaulted in their
homes. Peterson also at the cells.
A
difference between the two situations appears to be an absence of
evidence in the
Peterson
case
of psychological
sequelae
such
as constant fear, nightmares, reliving the incident and so on. In the
case of
Peterson
there
is also the pepper-spray that was used. Peterson did not have the
added misery of having his Rastafarian dreadlocks forcibly
cut off.
In
both cases there are signs of humiliation: Peterson was asked to wipe
up his own blood and, for example, Evert Faro was asked
to lie with
his head between the legs of his brother Adam. In the case of the
plaintiffs before me, there appears to be more evidence
of ongoing
swearing and foul language used including the humiliation of
references to the private parts of the mother of some of
the
plaintiffs. It should be borne in mind that the
contumelia,
also
resorting under the
actio
iniuriarum,
as
explained, includes the infringement of the plaintiffs' right to
privacy, dignity and reputation. All this, in my view, should
be
taken into account for purposes of assessing a realistic damages
award.
[89] Inasmuch as I
may take comparable awards into account, it seems to me, for the
reasons mentioned, that there are substantial
areas of similarity
between the present case and that of Mr Peterson. For purposes of
this judgment, I take the view that the awards
of the four plaintiffs
ought to fall roughly within the same parameters. Perhaps an amount
of R2 000,00 can be added to the claim
of Mr A Faro in respect of his
loss of income.
On
balance, it can perhaps be said that the
Peterson
case
was more severe, if one bears in mind that he was attacked with
pepper-spray and also that he was assaulted both at home and
at the
police station. It is true that he was also unlawfully arrested and
detained, but he was compensated separately for that.
The award of
R120 000,00 (now R156 000,00) was only in respect of the assaults.
[90]
I was also referred by Mr De Beer to a more recent case, that of
Marwana
v
Minister of
Police,
decided
on 28 August 2012, in the Eastern Cape High Court, Port Elizabeth. It
was reported in
Corbett
and Honey,
volume
6, at K6-154.
[91] The injured
person was a 46 year old female domestic worker.
[92] The synopsis of
injuries and after-effects, as crafted by the learned authors, reads
as follows:
"Unlawful
arrest and detention. Also: assault and unauthorised entry. The
plaintiff was arrested and detained for about 30
hours. During her
detention the police manhandled and assaulted her by striking her
with a wooden plank and strangling her with
a plastic bag. She
sustained the following injuries: excessive bruises on the back and
upper arms; abrasions both wrist joints;
bruises both knees. She was
strangled with a plastic over the mouth and nose such that she soiled
herself. During the period of
her arrest and detention there was an
occasion when the members of the police took her to her home for
further investigation. She
never legally authorised the police to
enter and search her premises. The court decided that the assault
constituted a serious
violation of the plaintiffs right to dignity.
She had done nothing to merit such humiliation, shock and trauma.
There is no doubt
that she suffered pain which could not be justified
even by any stretch of the imagination."
[93] This plaintiff
was compensated as follows:
damages for unlawful
arrest and detention R 55 000,00
damages for
assault
........................................
R
90 000,00
damages
for unlawful entry
.............................
R10
000.00
R155 000,00
In
terms of the 2014
Quantum
Year-book,
the
R90 000,00 award for the assault now increases to an amount of R101
000,00. It must be borne in mind that the plaintiff received
separate
awards for the arrest and detention and the unlawful entry.
[94] On balance, it
would appear as though Ms Marwana was assaulted in a more serious
fashion than were the four plaintiffs. Nevertheless,
I see no
indication of permanent injury having been sustained by this
plaintiff and there is no clear evidence of psychological
trauma
after the event such as that experienced by the four plaintiffs in
the present case.
[95]
Ms Cronje also went to some trouble to refer me to a number of cases
and awards that were made. These include the cases of
Peterson
and
Marwana.
In
King NO
v
Minister of Police
Corbett
and Honey volume 6 at G3-11 (2012) an amount of R140 000,00 was
awarded (current value R157 000,00) following a serious
and degrading
assault of a woman with a stick and a baton by a court orderly and a
member of the police. The assault took place
in humiliating fashion
in front of members of the public and the media. The injuries
included abrasions on the right elbow and
thigh, bruises on her right
breast, chest, back and right hand, open wounds on her arm,
haematomae
on
the left back and left eye and lacerations on the scalp, left eye and
lower leg. In the summary presented by Ms Cronje, there
is no
indication of permanent injury or serious psychological
sequelae
although,
one must assume, that such consequences probably manifested itself.
[96] There are other
awards too, some considerably lower than the three I have mentioned
and I do not consider it necessary to deal
with all the cases.
[97] After due
consideration, and as already indicated, I consider that it would be
unrealistic to attempt an analysis of the injuries
suffered by the
four plaintiffs, with the view to suggesting a slight difference here
and there between a realistic award for the
one as compared to the
others. By and large, the four plaintiffs went through the same
horrendous experience. They were all injured,
humiliated and, to an
extent, psychologically traumatised.
[98]
In all the circumstances, I am of the view that a realistic award in
damages for the assault (including
contumelia
)
for each of the plaintiffs would be an amount of R90 000,00.
[99] In the case of
plaintiff Adam Faro, I propose awarding an additional amount of R2
000,00 for loss of earnings. It is true that
he did not submit any
supporting documentation in support of this claim, but, given the
nature of his business, one would generally
not expect much by way of
documentation. In any event, he was not cross-examined on this point
neither was his evidence placed
in dispute in cross-examination.
[100] In the result,
I will make the following awards:
(1) to
J Daniels R90 000,00
(2) to
J Constable R90 000,00
(3) to
E Faro R90 000,00
(4) to
A Faro R92 000,00
Is
this an appropriate case to award costs on the High Court scale,
given the fact that the
awards
do not exceed the magistrates courts jurisdiction of R100 000.00?
[101]
In
Mvu
v
Minister of Safety
and Security and another
2009
6 SA 82
(GSJ) the
plain
tiff
was
awarded R30 000,00 for unlawful detention following upon a lawful
arrest.
[102] Before
awarding costs on the High Court scale, the learned Judge referred to
the following cases where the awards fell inside
the jurisdiction of
the magistrate's court but the costs were awarded on the High Court
scale:
Minister
of Justice
v
Hofmeyr
[1993] ZASCA 40
;
1993
3 SA 131
(A);
Seria
v
Minister of Safety
and Security
2005
5 SA 130
(C) at 151D;
Louw
v
Minister of Safety
and Security and others
2006[2]
SACR 178 (T) at 189;
Olivier
v
Minister of Safety
and Security
2008[2]
SACR 387 (W) at 399h-400b; and
Van
Rensburg
v
City of
Johannesburg
2009[1]
SACR 32 (W) at 41 i-j.
In
Mvu,
the
learned Judge said, at 93 E, that "the underlying principle
would appear to be the importance which the courts attach to
questions of unlawful arrest and detention". I find it difficult
to distinguish, when considering what costs scale to apply,
between a
case of unlawful arrest and detention, and a case, such as the
present, where the plaintiffs were traumatised, assaulted
and
insulted in their own home. In both cases, the aggressor is the
police.
[103]
In
Marwana,
at
K6-159, the learned Judge, although she had already made three awards
which, in total, exceeded the jurisdiction of the magistrate's
court,
still dealt with the question of the High Court scale in the
following terms:
"In my view,
any violation of the rights of a human being should be viewed as
serious. This is so especially the right to dignity,
privacy and more
so in circumstances where the plaintiff suffers emotional shock,
humiliation and trauma by reason of having been
assaulted by the law
enforcement agents. To litigate in the High Court with a view to
protect and enforce your rights is not uncommon
in our constitutional
democracy and will always justify the award of costs even on the High
Court scale. This is more so when the
defendant is one of the state
organs who should have ensured that the rights of the plaintiff
should be respected. I have no reason
to believe that the plaintiff
herein should not be awarded costs on the High Court scale. For that
reason the costs herein shall
be taxed at the High Court scale."
[104] It is also, in
my view, fair to consider that a plaintiff in the position of the
present litigants, given the uncertainty
of what award is likely to
be made, and the perceived tendency of courts to make higher awards,
may, in any event, be on the horns
of a dilemma to decide whether or
not to litigate in the High Court^ This is not a case so obviously
insignificant that the award
inevitably has to fall inside the
jurisdiction of the magistrate's court.
[105] In all these
circumstances, I consider it appropriate that costs should be awarded
on the High Court scale.
Associated
expenses and fees - declaration of plaintiffs as necessary witnesses
[106]
Allowances paid to witnesses and which are prescribed pursuant to
section 42 of the Supreme Court Act, no 59 of 1959 (now
pursuant to
section 37
of the
Superior Courts Act 10 of 2013
) may be claimed on
taxation in respect of any witness, lay or expert -see
Transnet
Ltd t/a Metro Rail and another
v
Witter
[2008] ZASCA 95
;
2008
6 SA 549
(SCA) at 559B-D.
[107]
Inasmuch as it
may be necessary, I would respectfully suggest to the taxing master
that these plaintiff witnesses qualify for,
at least, the prescribed
allowance and, in the discretion of the taxing master, a higher
allowance, as intended by the provisions
of
section 37(2)
of Act 10
of 2013. The plaintiffs had to travel a long distance to come to
court, and they are not men of means.
[108]
In
Transnet,
supra,
the
following is said at 560G:
"In all cases
therefore a declaration that a witness was a necessary witness is not
necessary so a court should not usurp the
function of the taxing
master by making one, and the taxing master is not entitled to
require one ... It is of course open to a
court to give any
indication to the taxing master it considers may be useful."
In deference to
these guidelines, I will refrain from making an order declaring the
plaintiffs to be necessary witnesses. I take
the liberty to
respectfully suggest to the taxing master that the plaintiffs should
be treated in terms of section 37, and, more
particularly, section
37(2) of Act 10 of 2013 which I have dealt with.
The costs flowing
from the proceedings of 22 and 23 April 2014
[109] There was some
debate about which party should be liable for the abovementioned
costs because the matter only commenced on
24 April 2014.
I have considered
submissions made by counsel in this regard, and it appears that there
was some confusion. It was also a question
of no judges being
available on one of the days. It seems to me that the correct
approach would be not to make any order relating
to the costs of the
two days.
On behalf of the
plaintiffs, interest at 15,5% per annum from fourteen days after the
order to date of payment has been contended
for. I understand the
position to be that the Prescribed Rate of Interest has been reduced
to 9% per annum. I have not been addressed
on any effect the question
of retrospectivity may have. I propose providing for the two rates in
the alternative, for the taxing
master to make the appropriate order.
The order
[110] I make the
following order:
1. Judgment is
granted against the defendant for payment to the four plaintiffs as
follows:
1.1 R90 000,00 to J
Daniels in case no 50047/2012
1.2 R90 000,00 to J
Constable in case no 50055/2012
1.3 R90 000,00 to E
Faro in case no 50049/2012
1.4 R92 000,00 to A
Faro in case no 50050/2012.
2.
The defendant is ordered to pay interest on the aforesaid amounts, in
each case, at the Prescribed Rate of 15,5% per annum alternatively
9%
per
annnm
from
fourteen days after the date of this order to date of payment.
3. The defendant is
ordered to pay the costs of all the plaintiffs, incurred before and
after the consolidation of the trials, to
be taxed or agreed upon on
the High Court scale.
4. No order is made
in respect of the costs of 22 and 23 April 2014.
WRC
PRINSLOO
JUDGE
OF THE GAUTENG DIVISION. PRETORIA
50047-2012
HEARD ON: 24 & 25
APRIL 2014
FOR THE PLAINTIFFS:
L W DE BEER
INSTRUCTED BY: ERWEE
ATTORNEYS INC
FOR THE DEFENDANT:
HTCRONJE
INSTRUCTED BY: STATE
ATTORNEY