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[2014] ZAFSHC 172
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Mokoena v Minister of the Police (2625/2013) [2014] ZAFSHC 172 (18 September 2014)
IN THE HIGH COURT
OF SOUTH AFRICA
FREE STATE
DIVISION, BLOEMFONTEIN
Case
No.: 2625/2013
DATE:
18 SEPTEMBER 2014
In the matter
between:
STEVEN TSIDISO
MOKOENA
................................................
Plaintiff
(Identity number:
9………………)
And
THE MINISTER OF
THE POLICE
.......................................
Defendant
CORAM: MOLOI, J
HEARD ON: 3
SEPTEMBER 2014
DELIVERED ON: 18
SEPTEMBER 2014
MOLOI, J
[1] In this matter
the plaintiff sued the defendant for payment of an amount of R2 100
000-00 being compensation for estimated
future medical expenses,
estimated future loss of earnings, pain, suffering and shock, loss of
amenities of life and disability.
The claim arose from an incident
that occurred on the 22nd of February 2013 at Deneysville where a
member of the South African
Police Services acting within the course
and scope of executing his duties is alleged to have assaulted the
plaintiff and caused
him serious bodily injuries. At the
commencement of the hearing the merits were separated from the
quantum by agreement between
the parties.
[2] The plaintiff, a
24 year old Grade 9 learner was called as a witness. He testified
that he had had a fallout with his girlfriend
of two years, namely
Sana Tsotetsi (Sana). Both him and Sana were summoned to the
principal’s office by the deputy principal
on 22 February 2013.
In the principal’s office he found two police officers, namely
Sergeant Mphuthi (Mphuthi) and Constable
Zwane, a female officer
(Zwane). Sana also joined as well as the deputy principal, Madam
Ntsalong. After he confirmed his identity
and address he was told
that Sana wanted to terminate the relationship between them. He
demanded the gifts he gave her back namely,
a cellular telephone and
bunny chow he bought her. The deputy principal asked Mphuthi to take
him away and beat him up.
[3] The two police
officers drove with him to the local police station. At the police
station Mphuthi took him to a separate room
leaving Zwane behind. In
that room his eyes were pepper sprayed by Mphuthi. Mphuthi pushed
him against the wall and he fell to
the floor and he was kicked. He
then heard the footsteps of Zwane approaching. Mphuthi picked him up
and dragged him to a tap
with a zinc where water was run over his
head. After talking to Zwane Mphuthi left. Zwane and another
police officer drove him
back to school. He was struggling to walk
and ran out of breath. He sat for a while on the chair of the
security guard near the
gate. The guard wanted to know why his eyes
were bloodshot and he was bleeding from the mouth. Later his sister
took him to the
hospital for treatment. He never threatened to
assault or stab Sana nor did he resist going with police to the
police station.
He never hindered the police in any manner
whatsoever.
[4] In
cross-examination he ended up conceding that Mphuthi against whom he
had laid an assault charge was acquitted. He said the
date of 22
March 2013 and the fact that he was in Grade 11 as per particulars of
claim were wrong and that the incident actually
took place on 22
February 2013 and that he was then in Grade 9. He conceded that the
police went to the school upon the complaints
made by Sana as she
feared that he would assault her and demanded to engage with her
sexually which she was not prepared to do.
He denied having
threatened her with a knife. He then went further to say in the
principal’s office and within the view
of all present Mphuthi
assaulted him by pinning him against the wall. He expressed surprise
that not even the doctors at the hospital
could find signs of assault
on him especially the swelling he alleged he had on his forehead
caused by Mphuthi knocking his head
against the wall in the
principal’s office. He could not remember making a statement
to the Independent Police Directorate
and denied the signature on a
statement shown to him as his. He passed out in the principal’s
office and did not know how
he got to the hospital save for what his
sister told him afterwords. This was after he was taken back to
school from the police
station. He denied having been aggressive in
the principal’s office and reiterated that he only demanded the
gifts he had
given to Sana. For the first time he said Mphuthi
strangled him in the principal’s office and hit him with a
clenched fist.
When he left the room Mphuthi took him in at the
police station, his head was wet from the water ran over him and his
shirt had
lost a few buttons as a result of Mphuthi pulling him after
he was pepper sprayed. He did not report the incident to the police
who took him back to school as he was enduring pain and was afraid.
He did not tell the guard at the schools entrance either as
he could
not speak. After returning to school he could not recall if the
deputy principal asked him what happened nor that he
demanded his
mother. He, however, recalled that his friends accompanied him home
and that they told him he fell down. He had
a protruding swelling on
his forehead, his neck was painful as well as his left leg. He
conceded that the particulars of claims
where they referred to the
right leg injured were wrong and this was later amended. A
departmental official visited him at the
hospital with many others
except the deputy principal. The doctors were supposed to see and
note his injuries. He was fitted
with neck brace given by one of the
nurses.
[5] The next witness
called was Mita Mokoena, the plaintiff’s mother. She testified
that on 22 February 2013 she saw the
plaintiff at home at
approximately 11h00 when he was brought there by other learners who
claimed he fell at school. They carried
him into the house and
placed him on a sofa. He cried when she touched him on the head. He
could not explain what happened until
after two weeks. She went to
see the principal on the same day of the incident. Plaintiff could
not walk and there was that protruding
swelling on his fore head on
the left hand side.
[6] In
cross-examination she said the plaintiff could not speak sensibly for
two weeks. He did not even know about the swelling
on his forehead
and she told him about it. He could not say how it came about. He
said at the police station the police ordered
him to rub his eyes
before he was pepper sprayed. The police assaulted him as a result
he fell on the floor where he was kicked.
A female police officer
walked him to a bench to seat and was given tissue paper to wipe
himself off. His left hand side from
the shoulder to his leg was
dysfunctional. The case against Mphuthi was opened by her husband
Daniel Thibelo Mokoena. She was
called to the school and was
informed by the principal and the deputy that the plaintiff was taken
by the police. When she got
to the school the plaintiff was already
at the hospital as the ambulance had already removed him. The
plaintiff was brought by
schoolmates to her parental home which she
uses as a crèche. She admitted discussing the merits of the
case with the plaintiff.
She and the plaintiff were present in court
when Mphuthi was acquitted of the assault charge laid by the
plaintiff.
After the mentioned
amendments were made, the plaintiff’s case was closed.
[7] The defence
called Dr Jaers of Metsimaholo Hospital, Sasolburg who examined the
plaintiff on 22 February 2013 and completed
the standard J88 form.
According to her no injuries at all could be seen on the plaintiff
and his shirt was intact. There was
also no bleeding from the mouth.
The plaintiff was however behaving in a strange way during the
examination. She could, however,
not find her clinical notes she
would require to describe the strange behaviour of the plaintiff.
She did not examine the plaintiff
neurologically but conceded strange
behaviour is possible if the brain is disturbed. Dr Banyane also
worked at Metsimaholo Hospital
in Sasolburg. She completed the
discharge form of the plaintiff on 5 March 2013 the plaintiff having
been admitted to the hospital
on 27 February 2013 complaining about
assault resulting in a head injury. A CT scan was commissioned and
showed no injuries.
[8] The defence
presented the evidence of Phehello Daniel Mphuthi, the Sergeant in
Social Crime Prevention at the SAPS, Deneysville.
He was the
campaign head of “adopt a cop” by the same school. On 22
February 2013 together with Zwane he attended
Gomotse school
regarding a complaint lodged by Sana of threats of assault and
demands for sexual engagement by the plaintiff.
At the school they
all met in the principal’s office though the principal was not
present. It was himself, Zwane, the deputy
principal, the plaintiff
and Sana. Sana and the plaintiff confirmed their relationship and
Sana requested that the plaintiff be
warned not to insist on having
sexual engagement with her and threaten to assault her with a knife
as she was not prepared to do
all that. Moreover, she officially
terminated the relationship with the plaintiff. The plaintiff flew
into a wave of rage and
demanded the return of all the presents he
gave her. The plaintiff also became rude and aggressive threatening
to do what will
please him. The attempts to calm him down did not
help as he abruptly left the office and tried to run away. He chased
after
the plaintiff and at a point the plaintiff slipped and fell
down. He helped the plaintiff up and took him in the police vehicle
to the police station together with Zwane to allow him time to calm
down. This he did on his own volition and was not asked by
the
deputy principal to do so. He was concerned the plaintiff could harm
Sana the way he was worked up. At the police station
the plaintiff
was allowed to sit in an office adjacent to the charge office and he
left leaving Zwane to complete the formalities
in terms of the
Domestic Violence Act. He drove to Vereeniging where he attended a
meeting. He never assaulted the plaintiff
at all least of all in the
manner described by the plaintiff.
[9] In
cross-examination he conceded that causing a person to fall down may
in certain circumstances constitute assault. He denied
having
tripped the plaintiff and cause him to fall down. All he wanted to
do and did was to bring sense back to the plaintiff
by talking to
him. He conceded that the plaintiff, by demanding the gifts he gave
to Sana, might have truly believed he was entitled
thereto. He was
telephonically informed the plaintiff collapsed during a meeting with
the principal after he was taken back to
school. When he was back
from Vereeniging he went to the plaintiff’s house to see him
but could not find him. He denied
the plaintiff’s collapsed as
a result of the assault by him.
[10] The defence
presented the evidence of Mokhali Groria Ntsalong, the deputy
principal of the school. She confirmed the attendance
of the meeting
in the principal’s office between herself, Mphuthi, Zwane, the
plaintiff and Sana. She reiterated what transpired
and the attitude
adopted by the plaintiff. She stated further that the plaintiff
would not listen to any reason. She emphasised
that Mphuthi never
assaulted the plaintiff in the office. She confirmed plaintiff left
the office furious end running but she
did not see him fall down as
she was the last person to leave the office. She denied ever telling
the police to go beat the plaintiff
up. She again saw the plaintiff
in the principal’s office when the principal ordered him to
stand up from the floor where
he apparently threw himself down. This
was after he came back from the police station. On his way to the
principal’s office
she was told, the plaintiff was walking
normally. She asked him what happened and the crying plaintiff said
he wanted his mother.His
clothes were still intact. She arranged
with his friends to take him home. He never said he was assaulted at
the police station.
Later at approximately 14h00 the mother came and
reported the plaintiff was taken to the hospital. She accompanied
the director
to the hospital on Thursday and saw the plaintiff
walking normally towards them. When the director got to him and
asked him where
he was going, he answered he was going to charge his
cellular telephone. Suddenly when the director introduced himself to
him,
the plaintiff fell down and started crying. Held would
thereafter not respond to the directors questions and started crying
and
demanding to go home. The doctor’s confirmed to the
director that the plaintiff had no injuries. She did equally see no
injuries on the plaintiff when she met him in the principal’s
office on 22 February 2013.
In cross-examination
she confirmed the plaintiff’s performance at school was poor.
Some aspects of her statement were questioned
eg. where she said she
reprimanded the plaintiff during the meeting. She explained that she
saw Mphuthi holding the plaintiff
in the corridor as they were going
towards the police vehicle. She had not seen him falling nor being
tripped.
[11] Mamoratana Sana
Francenia Zwane, a constable in the SAPS was the person who
accompanied Mphuthi to the school on the said date
following the
complaint by Sana, the plaintiff’s girlfriend. She testified
that in the principal’s office the plaintiff
was not assaulted
at all and also at the police station. She was in a position to see
everything happening in the room Mphuthi
placed the plaintiff to calm
him down. She arranged for the transportation of the plaintiff back
to school as Mphuthi left immediately
to attend a meeting at
Vereeniging. Constable Joseph Baba Motloung confirmed giving the
plaintiff a lift to school as he was going
on investigation of a
different matter. He was asked by Constable Zwane to do so. The
plaintiff was normal in all respects without
any injuries and walked
normally towards the school entrance. He conceded that certain
injuries sustained in assault case may
not show outwards signs. That
closed the defence case.
[12] The court must
consider the whole evidence placed before it and make a value
judgment thereon. The evidence of the plaintiff
is that he was
assaulted by Mphuthi in the principal’s office by being pushed
against the wall. He did not offer any resistance
when he was taken
to the police station after the deputy principal asked the police
that he be taken to the police station and
be beaten up. All the
plaintiff did was to demand the presents he gave to Sana back. At
the police station Mphuthi took him to
a room where he pepper sprayed
him, pushed him against the wall where he fell to the floor and was
kicked. Thereafter Mphuthi
pulled him up and led him to where the
tap was, pushed his head under the tap and ran water over it. After
Mphuthi left he was
driven to the school and left at the entrance.
He struggled to walk and limped to the seat of the security guard
where he sat
down. The guard asked him why his eyes were bloodshot
(red). He was also bleeding from the mouth.
[13] Mita Mokoena,
the plaintiff’s mother saw the plaintiff later that morning at
about 11h00 when he was brought home carried
by his schoolmates in a
vehicle. The plaintiff was crying and had a swelling on his
forehead. The plaintiff was thereafter taken
to the hospital by an
ambulance and was accompanied by his sister. The plaintiff could not
talk and she told him about the swelling
on his forehead only after
two weeks when he could relay what had happened on 22 February 2013.
After the plaintiff was taken
to the hospital she went to the school.
She explained that the plaintiff was forced to rub his eyes before
being pepper sprayed.
When he heard female footsteps he saw Zwane
and he was given a tissue paper to wipe himself off. The plaintiff’s
whole
left hand side from the shoulder to the leg was dysfunctional.
She knew of the assault case against Mphuthi for the assault on
the
plaintiff and that Mphuthi was found not guilty and was discharged on
that charge.
[14] According to
the particulars of claim the plaintiff was assaulted by Mphuthi
without lawful reason by using unnecessary force
upon the person of
the plaintiff as a result of which he sustained the following
injuries:
“6.1 A serious
head injury which has resulted in the plaintiff suffering from
continual headaches, loss of concentration and
interference in his
studies, pain and discomfort and depression;
6.2 An injury to his
neck which has resulted in the plaintiff suffering from continual
pain and discomfort;
6.3 An injury to his
left leg which also resulted in a restriction of movement, pain and
discomfort.”
While the siquealae
of the alleged assault are important for the determination of
quantum, the assault itself was not detailed
in the particulars of
claim. As far as the head injury is concerned there is no evidence
that directly state how the swelling
on the forehead was caused. It
was left to speculation that the plaintiff was pushed against the
wall and bumped his forehead
exactly how is not known. Whether the
swelling in the forehead was caused when the plaintiff was kicked or
when he fell down is
not known. Even the falling down was not
explained at all in his evidence. What is, however, more confusing
is the evidence of
the mother that she did not know if the plaintiff
was aware of the injury to his forehead with the result that she told
the plaintiff
about the injury two weeks after the incident when he
could communicate. How the injuries to his neck and left leg were
caused
remains a riddle, nor are they described. No evidence
whatsoever was presented how these injuries were caused. The failure
to
describe how the assault took place led to the speculation that
assault could be caused when one is made to fall or worse still
when
one was tripped in the absence of such evidence.
[15] What remains
astounding is why Zwane, the deputy principal and worst still, the
two medical practitioners could not see, the
obvious injury to the
plaintiff’s head (if it was there), and why clinical
examination did not reveal the other injuries
which would have been
reflected on the J88 form. There is uncontroverted evidence of
constable Motloung who took the plaintiff
from the police station
that when the plaintiff alighted from the vehicle he walked normally
to the school entrance and not lumping
or struggling as the plaintiff
alleged. There is uncontroverted evidence of the deputy principal,
that in the principal’s
office, the plaintiff feigned the fall
and was asked by the principal to stand up. How he got to the
principal’s office
from the entrance of the school premises is
not explained. There is uncontroverted evidence of the deputy
principal that on the
Thursday she went to the hospital with the
director, the plaintiff was walking normally on the way to charging
his cellular telephone.
But immediately the director was introduced
to him he fell down and cried. He would not tell the director what
happened and demanded
to go home instead. The doctors confirmed to
the director the plaintiff had not suffered any injuries. Constable
Zwane who was
present in the principal’s office and could see
everything happening in the room adjacent to the charge office where
the
plaintiff was placed to cool down saw no incident of assault on
the plaintiff. Constable Joseph Baba Motloung who transported the
plaintiff from the police station to the school saw no blood in the
plaintiff’s mouth and spoke to him. From the above it
is clear
that the version of the plaintiff is in direct conflict with that of
the defendant. In his particulars of claim the plaintiff
simply
referred to having been physically assaulted by Mphuthi without
stating how the assault took place.
[16] On the contrary
doctors Jaers who attended the plaintiff on 22 February 2013 found no
injuries on him and completed the J88
form. She could however,
subsequently not find the clinical examination notes. She did not
prescribe a cervical collar for the
plaintiff. Dr Banyane who
completed the discharge form for the plaintiff on 5 March 2013 could
also find no evidence of assault
on the plaintiff. Mphuthi denied
assaulting the plaintiff in the principal’s office, en route to
the police station nor
in the room at the police station. The
objective of taking the plaintiff to the police station was to allow
him, to calm down
as he was fuming after the girlfriend jilted him
before all present and feared he could harm her. The deputy
principal, Mokhadi
Gloria Ntsalong, denied any assault in the
principal’s office where she was present. She did not see the
plaintiff being
assaulted between the principal’s office and
the police vehicle before being driven to the police station. The
plaintiff
was walking normally. When the plaintiff was back at
school she went to the principal’s office where she was told
the plaintiff
flung himself to the floor and cried asking for his
mother. The principal ordered him to stand up. What is confusing
here and
which is not explained, is what happened to the plaintiff
after being examined by Dr Jaers on 22 February 2013. This is so
because
the discharge form by Dr Banyane indicates that he was
admitted with the complaint of assault and head injury on 27 February
2013
and was discharged on 5 March 2013. There is no record of his
discharge after he was in the hospital on 22 February 2013.
[17] In civil
matters the standard of proof required for the plaintiff to succeed
in his claim is the proof on the balance of probabilities:
Ocean
Accident and Guarantee Corporation Ltd v Koch
1963 (4) SA 147
(A) at
159 B–D.
Where the court is
faced with two or more conflicting versions of an incident, the court
must look at the probabilities to determine
which version is more
probable: The MEC for the Department of Health for the Province of
Kwazulu-Natal v Denise Franks; SCA Case
No 329/10
[2011] ZASCA 84
(27/5/2011).
Above I have already
indicated how the two versions in this matter are mutually
destructive. As there is no direct evidence of
how the injuries
allegedly sustained by the plaintiff were caused, the court cannot
invoke the inferential conclusion as to what
caused them in line with
the principles set out in R v Blom,
1939 AD 188
at 202 - 203. There
is no suggestion nor can it be inferred, that the defence witnesses
concocted the denial of the assault on
the plaintiff. It will be too
far-fetched why the two doctors would fail to note the injuries on
the patient if they were there,
in particular.
[18] In the
circumstances I cannot find that the plaintiff has proved his case on
the balance of probability and consequently make
the order following
hereunder. In line with the principle of costs following the cause,
the court has no reason to deviate therefrom.
ORDER:
[19] The
following order is made:
1. The
plaintiff’s claim is dismissed with costs.
K. J. MOLOI, J
On behalf of the
applicants: Mnr Röntgen
Instructed
by:
McIntyre &
Van Der Post
BLOEMFONTEIN
On behalf of
respondents: Adv. Mene
Instructed
by:
State
Attorney
BLOEMFONTEIN