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[2015] ZAGPPHC 401
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Mokoena v Minister of Police (58933/10) [2015] ZAGPPHC 401 (11 June 2015)
IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG DIVISION:
PRETORIA)
CASE NO.: 58933/10
DATE: 11 JUNE 2015
In the matter between:
JOSEPH JULIA
MOKOENA
.....................................................................................................
Plaintiff
And
THE MINISTER OF
POLICE
................................................................................................
Defendant
CIVIL MATTER
KGOELE J
DATE OF HEARING : 16 MARCH 2015
DATE OF JUDGMENT: 11 JUNE 2015
FOR THE PLAINTIFF : Adv. F H H
Kehrhahn
FOR THE DEFENDANT : Adv. Magano
JUDGMENT
KGOELE J:
A. INTRODUCTION
[1] The plaintiff instituted a claim
for damages against the Minister of Police in his capacity as the
employer of members of the
South African Police Services (SAPS) for
his alleged unlawful deprivation of his liberty and assault. The
plaintiff alleges that
over a period of three days in January 2010,
he was unlawfully deprived of his liberty and assaulted by members of
SAPS at Elandskraal.
His claim for damages is for the total amount
of R285 300-00 which is made up as follows:-
Claim A = R60 000-00(Assault and
deprivation of liberty on 4/1/10)
Claim B = R300 -00(Cell-phone
confiscated by the police on 4/1/10)
Claim C = R25 000-00 (Unlawful
deprivation of liberty) on 5/1/10)
Claim D = R50 000-00(Assault and
deprivation of liberty on 5/1/10)
Claim E = R150000-00(Assault and
deprivation of liberty on 7/1/10)
[2] These allegations were denied by
the defendants, who pleaded a bare denial to the plaintiff’s
allegations. The duty to
begin and the onus of proof therefore
rested on the plaintiff.
B. SUMMARY OF THE EVIDENCE
PLAINTIFF’S CASE
CLAIM A AND B
[3] Plaintiff testified that at the
time of this incident he was in the employ of Mr Joseph Nyanku
(Nyaku), the third witness who
testified on his behalf. They were
also staying in the same house which belonged to Nyanku. At that
particular time members of
the SAPS were looking for a suspect called
Kgotlelelo, who was accused of killing one of their members. The
plaintiff knows Kgotlelelo
through the younger brother of his
employer, namely, Sello Nyanku. Sello Nyanku had earlier called him
and informed him that the
SAPS are looking for Kgotlelelo and if he
sees him he must report to the police.
[4] On Sunday the 4th of January 2010,
Kgotlelelo came to their house and asked for food and money. It was
around past six in the
afternoon. Plaintiff told him that he did not
have food or money and Kgotlelelo left. He went to the police
station at Elandskraal
to report his encounter with the suspect. He
was with Sello Nyanku.
[5] Later during the same day, at
around eight or past eight in the evening, whilst watching TV at
Nyanku’s place, he heard
a noise of the kitchen door being
kicked open. He was with Nyanku and his wife Silver, at that time.
Members of the SAPS entered
the house. They were dressed in private
clothing, but had brown bullet proofed vest on, handcuffs, 9mm guns
and rifles. They
pointed them with firearms and further ordered them
to lie down and whilst on the floor, were kicked with booted feet.
He was
kicked on his head and stomach. They ended up handcuffing
him, searching his pockets and taking a
Cell-phone from him. They then asked
them of the whereabouts of Kgotlelelo. They were taken out of the
house. They continued
asking them questions about the whereabouts of
Kgotlelelo at the same time hitting them with open hands. He
identified Mr Morokweng,
Mr Ngudi and Mr Phoku amongst the police
officers who were there at the scene.
[6] Outside there were many other
police officers who were wearing uniforms. They were with Ms
Lebogang Mokobi (Lebo), the second
witness who testified on behalf of
the plaintiff, who was known to the plaintiff. The SAPS members,
according to him, also pulled
his private parts at that time and it
was painful as he screemed. There were no vehicles in front of
Nyanku’s house. The
vehicles used by the SAPS members were seen
by the plaintiff at Mr Ngobe’s house, and it was parked next to
his shop. He
could not say how many vehicles there were but were
many. As a result of plaintiff and Nyanku being continuously
assaulted, he
suggested that they should go to the house of a
relative of Kgotlelelo to look for him there. That is the house of Mr
Ngobe. They
(the plaintiff, Nyanku and Lebo) walked to the house of
Mr Ngobe, whilst surrounded by the SAPS members. The plaintiff and
Nyanku
were still handcuffed at that stage. When they arrived at
Ngobe’s house which is about 1km from Nyanku’s house they
went right up to the gate. The SAPS members used a cutter to cut the
chain around the gate open. Other police officers jumped over
the
fence. The SAPS members went to the front door and knocked. Some of
the police officers searched a flat on the premises occupied
by
Indian tenants. Mr Ngobe was not assaulted or treated harshly by the
SAPS members, they only enquired from him if he knows the
whereabouts
of Kgotlelelo. He replied in the negative. Mr Ngobe owns a private
school and they went to this private school in order
to search for
Kgotlelelo there.
[7] Upon arrival at the school, they
found a security guard. The police officers then cut open the lock of
the gate to gain access
to the school. The school was searched and
Kgotlelelo was not found. When they were returning back, Lebo was
then taken back to
her house in one of the police vehicles. The
police only released them at around 01h00. He then asked to be given
back his cell
phone but it could not be found and Inspector
Morokweng, promised to buy him a new one and further that he will
bring it the next
day.
[8] He indicated that at no stage did
he agree with the members of SAPS to accompany and assist them in the
search for Kgotlelelo.
They took him by force and he was handcuffed
at all the times with his hands at the back and was feeling pains.
According to
him his phone is worth R300-00. To date, he has not
received a new phone that he was promised.
CLAIM C
[9] The following day on the 5th of
January 2010 in the morning around six, two police officers who were
unknown to him by names
but were part of the group that came the
previous night arrived at Nyanku’s house again. This time they
requested him alone
to get into the vehicle they came with. Upon
enquiring why, he was not given a reason. The said vehicle was not a
marked one.
They were wearing private clothes. They were armed and
he was handcuffed the same way as the previous night. They then took
him away and drove with him to Nyanku’s mother’s house in
Elandkraal still searching for Kgotlelelo. When they could
not find
Kgotlelelo they went to various places and villages still in pursuit
of him. The villages included Mvusini village and
Moralela village.
He was only taken back home at around 13h00. During this encounter
he was not assaulted at all. He only felt
pains on the hands where
he was handcuffed. He experienced the need to go to the toilet but
did not ask for that because he was
scarred of them.
CLAIM D
[10] On the same day (as Claim C), the
SAPS members came back to Nyanku’s house at five in the
afternoon, where they found
the plaintiff with Nyanku and his wife
again. Although they were many in number, not all of the officers
were wearing SAPS uniforms
and some of them were wearing private
clothing. They were dressed in bullet proof vests and had firearms
and handcuffs. The SAPS
members arrived there with Sello Nyanku, who
is the younger brother of Nyanku.
[11] He was taken away together with
Nyanku, handcuffed then and placed in separate vehicles. He was hit
with an open hand and
even pinched. At that time he was seated in
between two SAPS officers. They went to a place called Tsantsabela
and parked next
to a dam. They took Nyanku who was still handcuffed
and went with him near the dam. A plastic bag was placed over his
head and
was only removed after he had messed himself. He was left
standing in the car but could see what was happening. One of them
hit
Nyanku with fists on the stomach telling him to speak the truth.
[12] They were put back into separate
cars and went to Moiding. The plaintiff was still handcuffed although
he indicated that he
was not assaulted this time. After their
encounter at Moiding, they were taken back to Elandskraal with the
brother of Kgotlolelo.
The plaintiff was specifically taken to the
Elandskraal SAPS members. On arrival, they waited for Joseph Nyanku
and one Jackie.
The vehicle he was in was parked outside the SAPS
members Elandskraal premises and was still inside the vehicle whilst
waiting.
He was hungry and too scared to ask to go to the toilet. He
was not given an opportunity to visit a bathroom facility by the SAPS
members. When the police and Nyanku arrived at the Elandskraal Police
Station one Tjommie also arrived. The SAPS members asked
Tjommie if
he saw Kgotlolelo. Nyanku then told the SAPS members that he needed
to take medication and that is when the SAPS members
released them.
The handcuffs were removed. It was at 21h00 when they were freed to
go home.
CLAIM E
[13] On 7 January 2010 at 20h00 the
plaintiff was with Nyanku and his wife, Silver at their house. The
police arrived and entered
through the security door. At that stage
they were busy enjoying a meal. The police said that they (plaintiff
and his company)
are enjoying themselves whilst they (SAPS) are
looking for someone. The plaintiff knew that these people were police
because he
recognised them from his previous encounters with them and
they were wearing bullet proof vests and had firearms. Some were
wearing
SAPS uniforms. The SAPS members ate their food and started to
assault him. Some then took Nyanku away. The plaintiff was taken to
the kitchen by four other police officers and Nyanku to the garage.
He was beaten and slapped in his face on both cheeks and his
ear
started to bleed. The plaintiff heard Nyanku screaming in the garage.
The police stopped assaulting him and took Nyanku away.
He remained
behind. He also testified that after that day the police continued
to come but on all those occasions they were asking
them about
Kgotlelelo but in an orderly manner and not assaulting them at all.
Mokgadi Lebogang Deborah Mokobi
[14] She testified that she also knew
Kgotlelelo who was wanted by the police as he usually visits Nyanku.
She knew about the fact
that Kgotlelelo was wanted because earlier
during the week Mr Thobejane who explained to her that he was from
Motetema police station
called her and wanted to know the whereabouts
of Kgotlelelo. On Sunday evening, the 3rd of January 2010 the police
and his brother
knocked on her window requesting her to open. It was
around eight o’clock in the evening. After opening, the police
who
were clad in civilian clothing, bullets proof vests and had
firearms, torches and handcuffs entered her house and searched it, at
the same time enquiring where Kgotlelelo was. They were
approximately twenty in number. After that she was forced to walk
with
these police officers to Nyanku’s place as she told them
that Kgotlelelo normally visit there. They made her to stand outside
at Nyanku’s place when they went around the house and came
through the front door with the plaintiff and Nyanku who were
according to her, assaulted and further instructed to lie down. They
were handcuffed when they were so assaulted. They were even
kicked
and they screamed. She was also hit with an open hand and told to
speak the truth. The police officer that assaulted her
is Mr Ngudi.
Joseph Nyanku then suggested that they go to his uncle, Mr Ngobe.
The procession proceeded to Mr Ngobe’s place.
The SAPS members
surrounded them as they were walking to Mr Ngobe’s place. She
saw the vehicles used by the SAPS members
for the first time next to
Mr Ngobe’s house. Mr Ngobe’s gate was cut open. His
house searched. He then suggested
they should check at his private
school. At that time there were also police officers with uniform.
She did not accompany the
police to the school as she was taken back
to her house in a vehicle.
Joseph Rasimati Nyanku
[15] He confirmed that the plaintiff
was working and staying with him as he had a contract erecting
toilets in the village Elandskraal.
His evidence corroborated that
of the plaintiff in as far as the events that relates to the incident
that took place on Sunday
when the police arrived at this place
during the night at past eight (Claim A and B). He also knew Mr
Ngudi, Inspector Phoku and
Superintendent Morokweng amongst the
members of SAPS. His evidence of about what happened inside and
outside his house is also
the same as that of the plaintiff including
up until they went to Mr Ngobe and Mr Ngobe’s private school.
He also indicated
that he was pulled with his private parts amongst
the assault he received. He also corroborated Lebo on the fact that
she did
not accompany them to Mr Ngobe’s school. He did not
mention the fact that plaintiff was searched and a phone taken from
him, but that he witnessed when they were about to be released that
plaintiff was requesting for his Cell-phone from the police.
They
asked amongst themselves about its whereabouts. When they could not
find it, they promised plaintiff that they will give
him the phone
the following day. They were then released at around 1h00.
[16] In respect of Claim C, he
testified that during the early hours of the morning, although he
could not recall the time, two
police officers came to his house and
asked for the plaintiff. They left with the plaintiff after he was
handcuffed. He did not
know where the SAPS took the plaintiff to. He
knew they were police officers as they were part of the group that
came to his house
the previous day. The SAPS officers were not
wearing police uniform, but they were armed. He cannot recall at what
time they returned,
safe to say it was during the day. On his return,
the plaintiff explained that he was taken to Morarela and Mbuzinini
villages.
[17] In as far as Claim D is concerned,
he also corroborated the plaintiff in as far as how the police
arrived in the afternoon
of the same day of Claim C how they were
taken in separate vehicles to the dam and how he was assaulted until
he messed himself.
[18] In as far as Claim E he testified
as follows:- On the 7th of January 2010, the witness was busy eating
at his house in Elandskraal.
He could not recall the time as it was
too long ago. The police arrived at his house and said that he (the
witness) is sitting
comfortably whilst they (the police) don’t
sleep and they are looking for a person. The police had a male person
with them
on handcuffs whom he did not know. Some of the police
officers then took their food and ate it. Some of the police officers
took
the plaintiff and left with him, whilst others took him to the
garage. The police officers said that he will hand over the “boy”
today, referring to Kgotlelelo. At the outset, the police asked for
Kgotlolelo’s ID document. He took it out and gave the
ID
document to them. He had the ID document according to him, because
Kgotlolelo was looking for work and for this reason he held
onto the
ID document. He was taken back to the garage, where the police told
him that he will tell the truth and that he will
give Kgotlolelo to
them. One officer came with a plastic bag and placed it over his head
and he was assaulted until he messed himself
again. The witness did
not know where the plaintiff was in proximity to the garage, but he
did hear the plaintiff screaming. The
SAPS members broke open the
garage ceiling searching for a gun. They did not find any weapons.
[19] The officers that went to his
house were indeed SAPS members and the witness recognised them from
his previous encounters with
them. He named them to be Mr Morokong,
Mr Phoku and Mr Thobejane. The police said that there is another
place where Kgotlolelo
can be, referring to the place where his
cattle normally graze, at Emmerspan. He was then taken to Emmerspan
by the SAPS members
without the plaintiff and was brought back during
the night. When he arrived back, the plaintiff told him that he could
not sleep
and his ear was bleeding. When asked if he made the
statement in regard to this matter, he said that he cannot read
English and
thus cannot confirm whether the statement was his.
DEFENDANT’S CASE
Pegs Thobejane
[20] He was a Constable in the South
African Police Service and stationed at Motetema Police Station. He
testified that during
January 2010 they were investigating a murder
case of a police officer who was stationed at Rakgoadi Satelite
Police Station, which
falls within the Motetema police station. A
suspect known to the police, one Kgotlelelo, was wanted in connection
with the murder
which had taken place on Friday, 01 January 2010. He
was tasked to investigate the murder case with Mr Morokong and Mr
Phoku.
According to him the police had at that time already issued
pamphlets bearing the photo of Kgotlelelo and the contact details of
the police officers who were investigating the case. Furthermore, the
pamphlets promised a reward of R50 000, 00 to anyone who
could
provide information that would lead to Kgotlelelo’s arrest.
[21] On Monday, 4th January 2010, they
went to Elandskraal at around 10h00 after they had received
information from members of the
community that Kgotlelelo had been
seen there. As they were not familiar with the place, they first went
to the Elandskraal Police
Station to familiarise themselves with the
place. Whilst waiting outside their car at the police station, they
were approached
by an unknown black male. He identified the said
person as Nyaku who testified on behalf of the plaintiff in Court.
The person
asked them if they were from Motetema Police Station and
informed them that he had seen Kgotlelelo at his house the previous
day.
They then gave the man their contact numbers and requested that
he call them should he see Kgotlelelo again.
[22] A few moments later they received
a call that Kgotlelelo had been seen at Groblersdal taxi rank selling
a laptop. They proceeded
to the taxi rank at around 13h00 and
subsequently traced the person to whom Kgotlelelo had sold the
laptop. He informed them that
Kgotlelelo had boarded a taxi to
Johannesburg. Later the same day they left for Johannesburg and only
came back from Johannesburg
when Kgotlelelo was arrested on or around
the 06th February 2010. He said that after Monday, 04th January 2010,
they did not go
back to Elandskraal at all since they left for
Johannesburg. He denied having assaulted the plaintiff or having
seen him at all
the occasions he mentioned. He denied being part of
the team that deprived the plaintiff of his liberty on all the
occasions mentioned.
Moleke Phoku
[23] He was a warrant officer by rank
and stationed at Motetema Police Station. He was also the
Investigating officer in the case
docket of a police officer who was
murdered on the 01st January 2010 at Rakgoadi satelite police station
which fell under Motetema
Police Station. He was working with
Thobejane and Morokong as a team to investigate the Murder Case. He
testified that whilst
looking for Kgotlelelo who was the suspect in
the murder case, they learned that he had killed another victim in
Marble Hall on
Sunday. They followed the lead to Mablehall. They
received information that the suspect was Kgotlelelo whom they were
already
looking for in another case docket. They went back home
after attending to the scene.
[24] On Monday, 4th January 2010, they
went to Elandskraal at around 10h00 as they had received information
that Kgotlelelo had
been seen there. They arrived at the Elandskraal
Police Station as they were not familiar with the place. Whilst
sitting outside
their car, they were approached by an unknown black
male (whom he identified as Nyaku in court). He asked them if they
were from
Motetema Police Station and informed them that he had seen
Kgotlelelo at his house the previous day. They gave the man their
contact
numbers and requested that he call them should he see
Kgotlelelo again. Later during the day they received a call that
Kgotlelelo
had been seen at Groblersdal taxi rank selling a laptop
and they proceeded there. They eventually traced the person to whom
Kgotlelelo
had sold the laptop to. He (the person traced) informed
them that Kgotlelelo had boarded a taxi to Johannesburg. They then
left
for Johannesburg the very same day. They only came back from
Johannesburg when Kgotlelelo was arrested on or around the 06th
February
2010. He said that after Monday, 04th January 2010, they
never went back to Elandskraal as they had left for Johannesburg to
arrest
Kgotlelelo there. He too denied assaulting and depriving
plaintiff of his liberty as testified by him.
Ms Sylvia Moshidi
[25] She is a professional nurse
stationed at Elandskraal clinic. She testified that she was on duty
when the plaintiff visited
the clinic on 12 January 2010 and further
that she had in fact been the one with whom the plaintiff consulted
with and subsequently
referred him to Matlala Hospital. The plaintiff
had complained to her that he was assaulted by the police and was
complaining about
his ear. She added that the information in the
clinic records would have been provided by the plaintiff and no one
else. She noticed
pass coming out of the plaintiff’s ear mixed
with little blood.
[26] She indicated during
cross-examination that Matlala hospital is approximately 10kms from
the clinic. She cannot say if the
injuries of the plaintiff were
serious by merely looking at him. Because he was assaulted, he
referred him to be examined by a
doctor as it is standard procedure
so that they could check whether there were no internal injuries that
could have been missed
by the nurses/them.
C.
THE LAW
[27] It is trite that in civil
proceedings the “onus bearing party” (in this case the
plaintiff) must, in order to succeed,
proof his case on a balance of
probabilities.
[28] The Court in the case of National
Employers General Insurance Limited v Jagers
1984 (4) SA 437
(E) at
440 D-G held that
“it seems to me with respect,
that in any civil case, as in any criminal case, the onus can
ordinarily only be discharged
by adducing credible evidence to
support the case of the party on whom the onus rests. In a civil case
the onus is obviously not
as heavy as it is in a criminal case, but
nevertheless where the onus rests on the plaintiff as in the present
case, and where
there are two mutually destructive stories, he can
only succeed if he satisfies the Court on a preponderance of
probabilities that
his version is true and accurate and therefore
acceptable, and that the other version advanced by the defendant is
therefore false
or mistaken and falls to be rejected. In deciding
whether that evidence is true or not the Court will weigh up and test
the plaintiff’s
allegations against the general probabilities.
The estimate of the credibility of a witness will therefore be
inextricably bound
up with a consideration of the probabilities of
the case and, if the balance of probabilities favours the plaintiff,
then the Court
will accept his version as being probably true. If
however the probabilities are evenly balanced in the sense that they
do not
favour the plaintiff’s case any more than they do the
defendant’s, the plaintiff can only succeed if the Court
nevertheless
believes him and is satisfied that his evidence is true
and that the defendant’s version is false”.
[29] In the case of Stellenboch
Farmers’ Winery Group Ltd and Another v Martell Et CIE and
Others
2003 (1) SA 11
(SCA), the following is stated at paragraph 14I
15G as a technique that is generally employed by the Courts when
determining disputes
in which stories are mutually destructive:
“[5]…. The technique
generally employed by courts in resolving factual disputes of this
nature may conveniently be
summarised as follows. To come to a
conclusion on the disputed issues a court must make findings on (a)
the credibility of the
various factual witnesses; (b) their
reliability; and (c) the probabilities. As to (a), the court’s
finding on the credibility
of a particular witness will depend on its
impression about the veracity of the witness. That in turn will
depend on a variety
of subsidiary factors, not necessarily in order
of importance, such as (i) the witness’ candour and demeanour
in the witness
box; (ii) his bias, latent and blatant; (iii) internal
contradictions in his evidence; (iv) external contradictions with
what was
pleaded or put on his behalf, or with established fact or
with his own extracurial statements or actions; (vi) the calibre and
cogency of his performance compared to that of other witnesses
testifying about the same incident or events. As to (b), a witness’
reliability will depend, apart from the factors mentioned under
(a)(ii), (iv) and (vi) above, on (i) the opportunities he had to
experience or observe the event in question and (ii) the quality
integrity and independence of his recall thereof. As to (c),
this
necessitates an analysis and evaluation of the probability or
improbability of each party’s version on each of the disputed
issues. In the light of its assessment of (a), (b) and (c) the court
will then, as the final step, determine whether the party
burdened
with the onus of proof has succeeded in discharging it. The hard
case, which will doubtless be the rare one, occurs when
a court’s
credibility findings compel it in one direction and its evaluation of
the general probabilities in another. The
more convincing the
former, the less convincing will be the latter. But when all factors
are equipoised probabilities prevail.”
D.
ANALYSIS
[30] There were some inconsistencies in
the evidence of the plaintiff and his witnesses. Firstly, there was
a time contradiction.
To claim C, he testified that the SAPS
abducted him at 06h00, whilst the particulars of claim and his
statement state this time
as 08h00. As to claim A, there was a
discrepancy as his oral testimony was to the effect that when he was
pulled with his testicles
he was outside, whereas in his statement
it was written that it was inside the house. There was also a date
contradiction.
Under cross examination he maintained that the first
incident took place on a Sunday, and when questioned about why it is
stated
in his statement that it was a Monday, 4th June, he disputed
that it was the 4th. He also testified that he went to the clinic
on
8th January, whilst a nurse testified that he went to the clinic on
the 12th.
[31] The correct way of evaluating the
evidence in situations where there are contradictions between the
witness’ statement
to the police on the one hand and the
evidence of such a witness in court on the other hand, is set out by
the Supreme Court of
Appeal in Mafaladiso
2003 (1) SACR 583
(SCA)
(summary contained in the headnote) as follows:-
“The judicial approach to
contradictions between two witnesses and contradictions between the
versions of the same witness
(such as, inter alia, between her or his
viva voce evidence and a previous statement) is, in principle (even
if not in degree)
identical. Indeed, in neither case is the aim to
prove which of the versions is correct, but to satisfy oneself that
the witness
could err, either because of a defective recollection or
because of dishonesty. The mere fact that it is evident that there
are
self-contradictions must be approached with caution by a court.
(i) Firstly, it must be carefully
determined
• What the witnesses actually
meant to say on each occasion, in order to determine whether there is
an actual contradiction
and
• What is the precise nature
thereof
In this regard the adjudicator of fact
must keep in mind
• that a previous statement is not
taken down by means of cross-examination
• that there may be language and
cultural differences between the witness and the person taking down
the statement which can
stand in the way of what precisely was meant,
and
• that the person giving the
statement is seldom, if ever, asked by the police officer to explain
their statement in detail
(ii) Secondly, it must be kept in mind
that
• not every error by a witness and
not every contradiction or deviation affects the credibility of a
witness
• non-material deviations are not
necessarily relevant
(iii) Thirdly, the contradictory
versions must be considered and evaluated on a holistic basis.
• The circumstances under which
the versions were made
• The proven reasons for the
contradictions
• The actual effect of the
contradictions with regard to the reliability and credibility of the
witness
• The question whether the witness
was given a sufficient opportunity to explain the contradictions –
and the quality
of the explanations
• And the connection between the
contradictions and the rest of the witness’ evidence Amongst
other factors, [are] to
be taken into consideration and weighed up.
(iv) Lastly, there is the final task of
the trial judge, namely
• To weigh up the previous
statement against the viva voce evidence
• To consider all the evidence and
• To decide whether it is reliable
or not and
• To decide whether the truth has
been told, despite any shortcomings.”
The dictum was referred to and applied
by the court in S v Govender
2006 (1) SACR 322(E)
325f-326d and S v
Ismail
2006 (1) SACR 593
(C) 599 a-d.
[32] In my view, all these
contradictions are not material. Besides the fact that the incident
happened some time ago, 5 years
to be precise, it was shown during
his evidence in chief that he has a low level of education and
English is not his first language.
During cross-examination he
insisted that although he put his signature on the statement taken by
his attorney of record, it was
never read to him as he said he was
hurrying for other clients. The fact that his education is low was
firstly demonstrated by
the fact that during cross-examination he
indicated that he made three statements. It only emerged later that
he was referring
to one statement which had several incidents which
happened on three separate dates. Secondly, when he was asked about
what he
said about Mr Nyanku’s profile [which word was written
in his statement], he indicated that he did not even understand what
the word “Profile” means. All of these contradictions can
be attributed to defective recollection because of a lapse
of
considerable amount of time since the incident occurred and as it
will become apparent later, not because he is lying. See:
Mafaladiso
matter quoted above.
[33] Furthermore, Lebo who appeared to
have a better level of education than plaintiff and Nyanku, although
she too was not sure
about the date, whether it was the 3rd of 4th,
insisted that the incident when she accompanied the police to
Nyanku’s place
was on a Sunday. Nyanku, whose level of
education is lower that the two, was also not sure whether it was a
Monday or Sunday.
A sight should not be lost of the fact that the
plaintiff’s testimony is that before the first incident at
Nyanku’s
house during that evening, he went to the police
station earlier to report that the suspect Kgotlelelo was with him
during the
day, and according to him that day was a Sunday. On the
same breath, the evidence of the defendants also is to the effect
that
they received information that Kgotlelelo was at Nyanku’s
place on a Sunday. This in my view strengthens the version that
the
first incident took place on Sunday as Lebo and plaintiff insists.
In addition to all of the above, the clinic record reveals
that the
plaintiff alleged that he was assaulted by the police on Sunday.
This information would have been given by the plaintiff
when the
events were still fresh in his mind. This also proves a previous
consistent statement of the plaintiff. I am thus satisfied
that the
first incident took place on a Sunday.
[34] His demeanour in Court was candid
and impressive even during cross-examination. On more than one
occasion, he admitted that
during a particular stage in his evidence,
he was not assaulted, which fact speaks volumes to his honesty. As
far as the clinic
date contradiction is concerned, he did not
hesitate to make a concession that he might have made a mistake. It
therefore becomes
clear that the contradictions as far as dates and
days are concerned, are attributed to mere lapse of a significant
amount of time
and lack of education which in my view, is
understandable. Of significance is the fact that plaintiff and his
witnesses corroborated
each other on the material aspects of how the
incident unfolded. Plaintiff and Nyanku deserve a special mention on
this aspect.
If one takes away the dates, their evidence as far as
the ordeal which occurred in a number of days and at various
locations is
concerned is the same.
[35] The contradiction of whether when
the entourage went to search Ngobe’s private school Lebo was
there or not according
to plaintiff, is also immaterial because it
relates to a collateral issue and more importantly, Nyaku and Lebo’s
evidence
corroborated each other on this aspect that she was not
there, she was already taken home by the police.
[36] The contradiction about whether
plaintiff and Nyaku were made to lie down inside the house or outside
also fell away because
plaintiff and Nyaku corroborated each other on
this aspect that it was inside the house. The same applies to the
one relating
to the issue whether they were pulled with private parts
inside or outside the house. Nyaku corroborated plaintiff’s
viva
voce evidence that it was outside.
[37] Lebo similarly came across as an
honest witness. There were very few inconsistencies in her evidence
which as I had indicated
above and in my view are not material and
cannot taint her credibility. She is an independent witness as she
did not institute
a claim against the SAPS. She did not witness the
entire episode of the plaintiff’s claim. If she was dishonest,
there
was no reason why she should have only lied about a small
portion of the plaintiff’s claim as opposed to corroborating
him
in his entire evidence. She corroborated almost the entire
version of the plaintiff and Nyaku as to how the police arrived on
that Sunday evening, how they entered into Nyanku’s house, how
they were assaulted outside the house and how they went to
Mr Ngobe’s
house being cuffed which are the fundamental issues in Claim A of the
plaintiff.
[38] Mr Nyaku, despite the fact that he
was not certain with dates, his evidence from Claim A until Claim E
corroborated that of
the plaintiff in material respects as already
indicated above. He is therefore regarded as a credible witness too.
[39] The evidence of the defendant’s
witnesses, the two police officers, Thobeyagae and Phoku, was
straight forward and consisted
of a bare denial of the incidents.
The only criticisms that were levelled against their testimony were
to the effect that when
questioned as to their proximity in terms of
where they were in relation to the vehicle whilst at Elandskraal
SAPS, Thobejane testified
that they were outside whereas Phoku said
they were inside the vehicle. In as far as the quality of their
recollection of the
events on those two days they testified about is
concerned, they were not impressive and failed dismally on this
aspect. When
prompted for details as to who gave them information
about the suspect being seen at Nyaku’s place on Sunday, both
of them
could not remember apparently because they did not take the
name of that person. They hide behind the fact that it was an
informer.
It is highly improbable that the name of the informer
could not be taken down by them. What they can claim in a matter
like this
is revealing the said name, which can be accepted, but not
the fact that they did not know and/or take the informer’s name
at all. They further could not say who the driver of their vehicle
was on those two days, and furthermore, at what time they left
for
Groblersdal taxi rank, and when they ultimately also left for Gauteng
and lastly, where they stayed over when they were at
Gauteng. When
compared to the quality of recollection of events of the plaintiff
and his witnesses are concerned, which event
took place over a long
period of time, 3 days, and was full of several events and incidents,
they fair dismally poor. This unfortunately
taints the reliability
of their evidence.
[40] When weighing up the probabilities
in this matter, this is where the defendant’s version crumbled.
The following can
be cited:-
• The two police officers, refused
to make even simple concession that the investigation was of national
importance as one
of their own was killed and that there were
pressure on them to apprehend the suspect. It is highly improbable
that this investigation
was just treated like a normal investigation
as they claim. I am saying this because the investigation thereof
started immediately
according to their version. Within those two
days, if their version that the victim was killed on Friday is to be
believed, the
police had already issued pamphlets containing a
picture of the suspect and furthermore, a reward of R50 000-00 was
already offered.
Furthermore, the case was given to three police
officers to investigate from their own version.
• They testified that they were
wearing brown bullet proof vests and civilian clothing when they were
at Elandskraal SAPS,
armed with pistols and had handcuffs in their
possession. This strengthens the version of the plaintiff and his
witnesses that
they were seen by them at Elandskraal armed and
clothed like that, and further, a probability that they also
proceeded to Nyanku’s
place. I find it highly improbable that
the plaintiff and his witness can concort this piece of evidence
including the number
of cars that were there.
• Surprisingly and conveniently,
when they were approached by a person who gave them information about
the suspect when they
were at the police station of Elandskraal they
did not once again take the name and particulars of this important
person who came
voluntarily at the police station to give them
valuable information they needed and which initially caused them to
come to Elandskraal.
• Is it further a coincidence that
according to the plaintiff he went with Sello Nyanku (the brother of
the plaintiff) to the
police station and at the same time the
defendants now recognise the man they did not take his particulars as
Nyanku (the third
witness of the plaintiff) here in court?. It is
quite obvious they resorted to this unknown male that they did not
take his particulars
as Mr Nyanku, the plaintiff’s witness, as
they realised that he knows them including the police officer
Morokweng very well
from long time ago as he testified in his
evidence in chief. I need to pause here in order to mention on this
aspect that during
the plaintiff and Nyanku’s evidence and
cross-examination of their testimony, no mention was made to the fact
that the unknown
man that came to them at the police station was
Nyanku. This evidence only emerged during the defence case. It
therefore stands
untested.
• According to them they received
information that the suspect was at Nyanku’s place on Sunday.
In my view, it is highly
improbable that they decided not to follow
this information and went to Johannesburg first instead to look for
the suspect. The
probabilities weighs heavily towards the fact that
they indeed went to look for this suspect at Nyanku’s place,
and tried
to force information out of the plaintiff and Nyanku as to
the suspect’s whereabouts, as they were still of the opinion
that
he was still around Elandskraal.
• The probability that the
plaintiff and his witnesses could have concorted their evidence in
order to falsely implicate the
defendants is clearly far-fetched if
one takes into consideration the manner in which they corroborated
each other as to the material
aspects of how the plaintiff was
deprived of his liberty and assaulted by the members of SAPS. As
indicated above, this is not
a case of a single episode of events,
but several of them, hence the number of claims laid by the
plaintiff. In addition, there’s
an abundance of other neutral
evidence which support their version. The clinic record and evidence
by the nurse is to the effect
that the plaintiff claimed to have been
assaulted by the police. This proves his previous consistent version
ever since. Plaintiff
had no pre-existing ear pathology. He received
medical attention for that at the clinic first as testified by the
nurse who was
called by the defendants. Although they did not
testify, the ENT, Dr Chris Smit and the Audiologist, Mariet du Plooy,
compiled
reports which were admitted into record as evidence which
also confirms the injury of the plaintiff’s ear.
• According to the defendants,
they do not know plaintiff and Lebo at all, and they were seeing the
two for the first time
in Court. The two witnesses positively
identified them and their version is that they were at Elandskraal on
Sunday. The defendants
say that they only went to Elandskraal on
Monday. If we agree with the defendant’s version, how was it
possible that they
were positively identified by them when (1) the
two police officers have not met them at all? (2) the two police
officers are not
even stationed at Elandskraal Police Station?.
• The thought as to whether is it
a coincidence that the two witnesses claim that they saw them on
Sunday at Elandskraal village
when the defendants happened to have
gone there on a Monday cannot escape one’s mind.
[41] In the light of the assessment
that I made above, I am of the view that the probabilities weighs
heavily in favour of the plaintiff
and he had on a preponderance of
probabilities satisfied this Court that his evidence together with
that of his witnesses despite
the shortcoming mentioned above, is
true and therefore reliable. The version advanced by the defendants
therefore falls to be
rejected. Plaintiff succeeds in all his
claims. The deprivation of the plaintiff’s liberty and the
resultant assault on
his person cannot in my view in the
circumstances of this matter be justified.
E. QUANTUM
[42] The plaintiff testified that he
had internal pains because he was kicked on his head, body and feet.
He suffers from ear discharge
and he finds it difficult to hear. His
sleep has been affected. He has nightmares of the police beating him
ever since the incident
took place. When he sees the police, it
raises his consciousness. He is scared of the police. He suffers from
anxiety. He used
to do piece jobs which he stopped due to the ear
problem. He also complained of headaches. He went to the clinic on
12th January
2010. They gave him medication and referred him to
Matlala hospital, which he could not attend due to financial
constraints. He
did not have transport money. He later went to
Pretoria for treatment and to a private doctor in Groblersdal.
[43] The plaintiff was deprived of his
liberty in Claim A from around 20h00 until 1h00 in the morning
(approximately 5 hours).
In Claim C he was taken from 06h00 in the
morning until 13h00 (6 hours). In Claim D it was from 17h00 in the
afternoon until
21h00 (4 hours). The entire period of his
deprivation of liberty is therefore approximately 15 hours. Claim E
was comprised
of assaults only.
[44] Claim B is of a cellular phone
worth R300-00. In addition to being deprived of his liberty, he was
handcuffed on all occasions
which resulted in him suffering pains on
his hands. The plaintiff had done nothing wrong and was taken away
by force. He was
handcuffed and made to go to various places in
those handcuffs as if he was a dangerous criminal, when there was no
charge levelled
against him. It goes without saying that this
conduct impaired and degraded his human dignity.
[45] The plaintiff’s Elandskraal
clinical note was admitted into evidence. According to this medical
note, which is a referral
form, the plaintiff was: “assaulted
by the police on Sunday last week. Bleeding observed on Wednesday.
Pain affecting the
head… Watery discharge observed on
Thursday.” The Plaintiff was referred to the Matlala hospital.
Although plaintiff
testified that he often suffers from headaches as
a result of the assault, this was not supported by any medical
evidence.
[46] The medico legal report by Dr
Chris J.B Smit (Ear, Nose and Throat Surgeon) was admitted as
evidence. According to this report,
plaintiff consulted the expert on
3 February 2010 for the first time, and again thereafter. The expert
noted that “plaintiff
was assaulted and specifically, he was
hit against the left ear. Plaintiff had no history of previous middle
ear infections or
any ear pathology before the assault. The left ear
bled for some time after the assault, but has stopped. On
examination, the left
eardrum was red, due to blood vessels
engorgement, and there was slight deafness on the left side”.
The expert concluded
that the eardrum could have been perforated, as
the ear bled. The eardrum showed some signs of injury because the ear
was red and
the plaintiff had mild conductive deafness (1.2%).
[47] The medico legal report by Mariet
du Plooy (Audiologist) was admitted into evidence also. This expert
confirmed loss of hearing
in the left ear and that the left ear
presents with mild to moderate conductive deafness.
[48] Although there was no
psychological report on the effect of the injuries sustained by the
plaintiff, deprivation of personal
liberty has consistently been
regarded by our Courts as a serious injury. What more can we say if
it is accompanied by a series
of assaults which depicted an intention
of causing grievous bodily harm to a person.
[49] Counsel for both the plaintiff and
the defendant referred this Court to some decisions for a comparative
analysis in order
to determine the award of damages, which I had
taken into consideration in the analysis of this matter. The
compendium of all
of the decisions they referred to and numerous
others not cited shows that there can be no rule of thumb. It
depends entirely
on the circumstances of each and every case.
[50] In the case of Wagner v Minister
of Defence (46923/10) [2012] ZAGPPHC 59 (19 April 2012) Makgoka J
remarked in paragraph 14
as follows:-
“whether the arrest was malicious
or not, is an important consideration in the assessment of damages.
In Masisi v Minister
of Safety and Security
2011 (2) SACR 262
(GNP)
this court held that where the arrest was malicious, the plaintiff
would be entitled to a higher amount of damages than would
be
awarded, absent malice. The court awarded R65 000 to the plaintiff
who had been detained for over 4 hours. See also Van Rensburg
v City
of Johannesburg
2009 (2) SA 101
(W), where a 74 years old retired
accountant was detained for approximately seven hours by the members
of the Johannesburg Metro
Police Division (JMPD) for unpaid traffic
fines. He was awarded R75 000 after the Court found the conduct of
the metro police
officers unreasonable and reprehensible in refusing
to explain to the plaintiff the reason for his arrest, and in not
affording
him an opportunity to explain, and not verifying the facts
before detaining him.”
[51] In the same case quoted above the
Court awarded the following amounts in respect of the two claims
respectively:-
CLAIM 1 : R40 000-00
CLAIM 2 : R20 000-00
In the first claim the Court took into
consideration the personal circumstances of the plaintiff which were
the only evidence put
before Court as no other evidence of the amount
of damages were led. The plaintiff was 47 years old, married, with
three children.
He was a mechanical engineering who was employed by
Denel. The Court also took into consideration that there were no
malice on
the part of the officers and the duration of detention in
this incident was from 12h00 until 19h35 (7 hours 30 minutes). In
the
second claim, there was no indication of the duration of the
detention but the plaintiff was in addition grabbed around his neck,
pushed against a corner, and throttled. He was released without
being charged later in the afternoon of the same day.
[53] In the case of Minister of Safety
& Security v Scott and Another
2014 (3) ALL SA 306
(SCA), the
plaintiff had been wrongly arrested and detained for a period of nine
(9) hours. The Court a quo awarded the plaintiff
damages in the
amount of R75 000-00 for the unlawful arrest and detention. The
Supreme Court of Appeal reduced the award in respect
of the
respondent’s (plaintiff) damages to unlawful arrest and
detention to R30 000-00. The 2014 value of this amount, according
to
Koch, Quantum Yearbook, Classified list of inflation Adjusted Awards,
is R34 000-00
[54] In the case of Mvu v Minister of
Safety and Security and Another
2009 (6) SA 82
(GSJ), the plaintiff
was awarded damages of R30 000-00 for a wrongful detention. The
plaintiff was incarcerated from 10pm until
the next morning. The
Court awarded damages in the amount of R30 000-00. The present value
according to Koch’s Quantum
Yearbook is R42 000-00.
[55] In this matter the only personal
circumstances of the plaintiff put before the Court was that he was
born in 1985 and attended
school until standard 9. As indicated
above he was deprived of his liberty for 15 hours all in all and
further assaulted several
times. The specialist indicated that he
suffered hearing loss of 1.2% in his left ear. Unlike in the Wagner
case quoted above,
the malice on the part of the officers in this
case was grossly extreme and was uncalled for. As already indicated
above they
were only looking for information and they know very well
that their conduct in eliciting information the manner in which they
did was not only unlawful but morally reprehensible. It is quite
clear that they took advantage of the vulnerable position the
plaintiff was in because they repeated doing almost the same on a
number of days. The Wagner case is further distinguishable from
ours
because there was also no indication that the plaintiff in that
matter was handcuffed. In this matter he was and the assault
on the
plaintiff was repeated and was severe.
[56] Having taken all of the above into
consideration, I am of the view that the following amounts are fair
and reasonable compensation
of the plaintiff in the circumstances of
this matter:-
All the unlawful deprivation of liberty
taken together = R120 000.00
All the assaults taken together = R 20
000.00
Cell-phone= R 300.00
TOTAL= R140 300.00
[57] The following order is therefore
made:-
57.1 The defendant is ordered to pay
R140 300-00 to the plaintiff’s Attorneys, MPHELA &
ASSOCIATES, which amount shall
be paid into their trust account, the
details being as follows;-
ACCOUNT HOLDER : MPHELA &
ASSOCIATES
BANK : STANDARD BANK
BRACH CODE : 05……….
ACCOUNT NUMBER : 23 ………………
57.2 The defendant is ordered to pay
the plaintiff’s taxed or agreed costs on a party to party
scale, which costs shall include
but not limited to the following:-
57.2.1 Costs of counsel;
57.2.2 Costs for the trial bundles;
57.2.3 The reasonable travelling and
accommodation expenses of the plaintiff to attend the medico legal
appointments of the parties;
57.2.4 The reasonable taxable fees on
the experts Dr Smit and Du Plooy, including the preparation,
reservation and day fees, if
any.
A M KGOELE
JUDGE OF THE HIGH COURT
ATTORNEYS:
FOR THE PLAINTIFF : Messrs Mphela &
Associates
544 Charles Street
Corner 22nd Street
MENLO PARK
PRETORIA
FOR THE DEFENDANT : The State
Attorney
SALU Building
Corner Schoeman & Andries
PRETORIA