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[2015] ZAGPPHC 432
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Makhubu v Minister of Police (11954/2011) [2015] ZAGPPHC 432 (4 June 2015)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
REPUBLIC OF SOUTH
AFRICA
IN
THE
HIGH
COURT
OF
SOUTH
AFRICA
(NORTH
GAUTENG,
PRETORIA)
CASE
NO: 11954/2011
DATE:
4 June 2015
In
the matter between:
MAVELA
MOSES
MAKHUBU
PLAINTIFF
And
THE
MINISTER OF POLICE
DEFENDANT
JUDGMENT
Wright
J
[1]
The plaintiff is a man who runs a restaurant-disco. He claims that he
was assaulted by the police shortly after midnight on
Saturday 21
November 2010. He instituted action claiming damages for past medical
expenses, future medical costs, future loss of
earnings and general
damages. The claim for general damages included a claim for
disfigurement. When the matter came before me
it was agreed between
the parties that the only issue was general damages and that
disfigurement formed no part of the claim. The
amount of R500 000 was
claimed for general damages.
[2]
The plaintiff alleged in the particulars of claim that he had been
sjambokked, kicked and slapped. He also alleged that he had
been
forced to do push-ups in front of his customers. Bruises and
abrasions of the right knee, a tender chest, fracture to the
ribs and
swelling to the interior chest wall were pleaded.
[3]
Doctor Mpombwa testified. He examined the plaintiff on 24 November
2010. He does not know at what time this occurred. He noted,
on a J88
form bruises/abrasions on the right knee, tender chest, two fractured
ribs and swelling on the anterior chest wall. He
said in evidence
that the ribs might have been fractured. He said that the plaintiff
was in unbearable pain. He said that the injuries
were between two
and five days old.
[4]
The plaintiff testified through an interpreter. The police arrived
and ordered his customers to lie on the ground. They were
assaulted
and searched. The police then told him to do push-ups. He did. He was
kicked all over his body. He pricked his knee on
broken glass. He was
sjambokked on his ribs and body. (This is not borne out by the J88).
He went to the chemist on Monday 23 November
2010. He had tried home
medication for two days which had not worked. The commander of the
police, a cluster commander named Majola
stood by during the assault.
She told the plaintiff that he was a trouble- maker and that she
would ensure that his place would
be closed.
[5]
The plaintiff could not say where on his body he was sjambokked. He
specifically said that he was not assaulted other than by
being
kicked or sjambokked. The particulars of claim allege slapping.
[6]
The plaintiff said that those customers who saw the police assaulting
him said so to him the next day. The plaintiff then said
that no
customer came to him to say that they had witnessed an assasault on
the plaintiff.
[7]
The plaintiff specifically said that had never made a statement to
the police. In fact he had made one on 25 November 2010.
In that
statement he said that he had been hit by police using their open
hands.
[8]
Mr Ncongwane testified for the plaintiff. He was about [……]
years old at the time. He worked at the tavern as
a waiter and
cleaner. The police arrived and pushed the plaintiff and the
employees out of the shop. There were at least sixty
customers in the
shop. Mr Ncongwane could not identify any of the police. The
plaintiff was forced to do push-ups. While this was
happening the
plaintiff was assaulted by the police hitting him with a black rubber
sjambok. When the plaintiff was being hit on
the back with the
sjambok he was wearing only a pair of shorts and a golf t -
shirt. Mr Ncongwane was also assaulted
with the sjambok. He was
slapped. He said that the plaintiff cut his knee on a broken bottle
while doing push-ups but that bleeding
was minimal. Mr Ncongwane was
standing about 2 meters from the plaintiff but did not see him being
kicked. Mr Ncongwane said that
the plaintiff was not assaulted when
the plaintiff was alone.
[9]
Mr Khumalo testified for the plaintiff through an interpreter. He
worked for the plaintiff at the tavern. Mr Khumalo was not
assaulted
but the plaintiff was assaulted all over his body by police kicks. Mr
Khumalo did not see any police officer with a baton
or sjambok. Mr
Khumalo said that he saw the plaintiff being kicked but that he could
not see whether or not the plaintiff was hit
with a sjambok because
he, Mr Khumalo was too far away. Mr Khumalo could not explain why he
was close enough to witness the kicks
on the plaintiff but was too
far to see if the plaintiff was sjambokked.
[10]
Mr Vimbi, for the defendant sought to have admitted in evidence
during cross examination a statement made by Mr Khumalo
to the
police because the statement contained contradictions of Mr Khumalo's
evidence in court. I excluded the statement as Mr
Khumalo gave
unchallenged evidence that his home language is Seswati while the
statement is in English and the statement was not
read to him or
explained to him prior to signature. There was no evidence that Mr
Khumalo's English was sufficient for him to have
understood the
written statement. It follows that any contradictions between the
written statement and evidence in court are not
before me.
[11]
Ms Seboko closed the plaintiff's case and Mr Vimbi sought absolution.
I dismissed the application, holding that a court
might or
could find for the plaintiff despite the significant contradictions
in the plaintiff's evidence and between his evidence
and those of his
witnesses.
[12]
Lt- Col Luhlanga and Warrant Officer Madonsela testified for the
defendant. They said that they were not in a position to confirm
or
deny the alleged assault. It is not clear to me why they were called.
[13]
The significant contradictions in the plaintiff s case are not
necessarily fatal to it. The particulars of claim allege that
commander Majola was on the scene. The plaintiff in evidence placed
her on the scene. She was not called to testify and her failure
to
testify was not explained in evidence. I would have expected that
either commander Majola would have testified or that a basis
for her
failure to do so would have been laid in the evidence of the
defendant. The assault on the plaintiff occurred in front
of the
plaintiff's staff and customers. The police, by forcing the plaintiff
to do push-ups in front of his customers increased
his humiliation.
In my view R65 000 is appropriate compensation and is enough to
attract High Court costs.
Order:
1.
The defendant is ordered to pay the plaintiff R65 000 and costs on
the High Court scale.