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[2013] ZAECMHC 32
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Tshonefini v Minister of Safety & Security (1019/09) [2013] ZAECMHC 32 (25 October 2013)
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE, MTHATHA)
CASE NO.: 1019/09
In the matter between:
NONCEDO TSHONEFINI
...............................................................
PLAINTIFF
And
MINISTER OF SAFETY AND SECURITY
................................
DEFENDANT
JUDGMENT
BESHE, J:
[1] Plaintiff herein is suing the defendant for damages
arising from an incident that took place on the 22 January 2009 at
plaintiff’s
place in Bizana, under the following heads:
1. Damages for pain suffering and loss: R700 000.00
2. General damages for
contumelia
: R300 000.00
[2] Plaintiff alleged that she was assaulted by an
employee of the defendant, who also broke down a door at her house
and forcefully
searched the house for one
Themba
. At the time
he was acting within the scope and course of his employment.
[3] In his plea defendant contends that employees of the
defendant struggled with the plaintiff when she blocked their way
when
they wanted to enter a flat at her premises in order to search
for a suspect that they were looking for. Further that the actions
of
the police officers were justified or necessary in order to effect an
arrest or to prevent the suspect they were looking for
from escaping.
[4] It transpired from plaintiff’s as well as
defendant’s evidence as well as the latters’ pleadings
that the
following is common cause:
On the 22 January 2009, two employees of the defendant
Constables
Mthintso
and
Gwayi
visited the home
of the plaintiff, a female who was 40 years old at the time. The
purpose of the visit by the two constables was
to follow upon an
information on one
Themba
who was a suspect in a murder case
that was being investigated by their colleague,
Inspector
Williams
.
Mthintso
and his colleague were wearing civilian
clothing. They were driving in an unmarked police vehicle. Their
intention was to arrest
the said
Themba
. Upon enquiring from
plaintiff about
Themba’s
whereabouts plaintiff said he
was not home.
It is common cause that
Mthintso
insisted that
Themba
was present and proceeded to look for him inside the
house.
It is common cause that plaintiff sustained the
following injuries on that day:
Superficial and extended bruising on both thighs and
left (posterior) arm.
That she received treatment at St Patrick’s
Hospital in Bizana.
Common cause also is the fact
Mthintso
and
Gwayi
did not have a warrant authorizing them to search plaintiff’s
house.
It appears to be common cause that they did not have a
warrant of arrest for the said
Themba
. Plaintiff did not grant
Mthintso
permission to enter her house.
Mthintso
forcefully opened the door of plaintiff’s house.
[5] The parties proffered divergent versions of how the
plaintiff sustained the injuries that were observed on her by
Doctor
Khalifa
at St Patrick’s Hospital on the 23 January 2009.
[6] According to the plaintiff at about 11h00 on the 22
January 2009 a sedan motor vehicle with two occupants a man and a
woman
arrived at her home. The two alighted from the motor vehicle
and enquired about the whereabouts of one
Themba
, who is her
brother. She informed them she did not know where
Themba
was.
The two proceeded to a flat inside the premises, kicked the door open
and proceeded to search for
Themba
who they did not find. They
moved to the second room and ultimately found
Themba
asleep in
the third room that they searched. Using a stick that one of the two
people,
Mthintso
, found underneath one of the beds at
plaintiff’s place, he assaulted the plaintiff therewith on her
buttocks, waist and on
her back.
Mthintso
held both plaintiff
and
Themba
by hand, placed the latter inside the boot of the
motor vehicle in which they were travelling. Thereafter continued
assaulting plaintiff
with a stick until the stick broke.
Mthintso
continued assaulting the plaintiff with fists causing the plaintiff
to fall. It was at the stage when
Mthintso
was assaulting
plaintiff that he remarked that he was a policeman and would kill the
plaintiff for lying to him or by hiding
Themba
. She testified
that until
Mthintso
opened the door of the third room and
found
Themba
asleep inside the room, she did not know that
Themba
was there because the last time that she checked
Themba
was not home.
[7] Plaintiff denied that she blocked
Mthintso’s
way when he tried to get to one of the rooms at her premises or
holding on to his leg.
[8] According to
Mthintso
, who gave evidence on
behalf of the defendant, having received information that
Themba
who was a suspect in a murder case, was seen at plaintiff’s
home, he called
Inspector Williams
to confirm whether he was
looking for
Themba
in connection with one of the cases he was
investigating. Upon
Williams’
confirming that he was
looking for
Themba
, he together with
Student Constable
Gwayi
proceeded to the home of the plaintiff. They found
plaintiff standing in front of the house they intended searching to
see if
Themba
was not there. He introduced himself as
Constable Mthintso
from Flagstaff and introduced his partner
as well. He then asked plaintiff where
Themba
was. Plaintiff
responded that he left three days ago. He insisted that
Themba
was
inside the house in front of which he was standing and insisted that
he was going to enter the house. He moved towards the door
of the
said house whereupon plaintiff blocked his way. He pushed her aside
and headed to the door. Plaintiff held on his thigh.
He proceeded to
walk towards the door thereby dragging the plaintiff along. He got
into the house where he found
Themba
. Thereafter they took the
latter with them. He testified that as far as he is concerned
plaintiff sustained injuries as a result
of being dragged at the time
she was holding on to him. He testified further that the plaintiff’s
homestead comprised of
two structures or buildings. During
cross-examination by
Mr Notyesi
for the plaintiff,
Mthintso
testifies that they did not tell plaintiff why they were looking for
Themba
. He also admitted during cross-examination that he
forced the door at plaintiff’s place to open. He also admitted
that plaintiff
was older than him.
Mthintso
explained that at
the time plaintiff was holding on to his leg – she was dragged
across the ground face down – in other
words the front of her
body was closest to or facing the ground.
[9] The approach to be adopted by court when confronted
with divergent versions was determined in
SFW Group Ltd and
Another v Martell et cie and Others
2003 (1) SA 11
at 14 paragraph 5
:
“On the central issue, as to what the parties actually decided,
there are two irreconcilable versions. So, too, on a number
of
peripheral areas of dispute which may have a bearing on the
probabilities. The technique generally employed by courts in
resolving
factual disputes of this nature may conveniently be
summarized 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, (v) the probability or improbability of
particular aspects of his version, (vi) the caliber 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
(v) 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 a 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.”
[10] However before I can embark on the analysis of the
evidence of the two versions in the fashion suggested in the
SFW
Group Ltd
case (
supra
),
I believe that evidence clearly reveals that the employee of the
defendant (
Mthintso
)
entered the house of the plaintiff without her consent and he did so
after forcing the door open. That plaintiff sustained injuries
as a
result of
Mthintso’s
actions.
Whether the said injuries were sustained as at time when plaintiff
held on to
Mthintso
in
a bid to stop him from entering her house as
Mthintso
suggested or by assaulting her with a stick
and open hands as suggested by plaintiff, that is in dispute.
Defendant’s employees
did not have a warrant that authorized
them to search plaintiff’s place, nor did they have a warrant
for the arrest of
Themba
.
This being the case therefore, it was incumbent upon the defendant to
justify the conduct of his employees. This in view of section
12 (1)
of the Constitution which provides that: everyone has the right to
freedom and security of the person, which includes the
right
(a) … … .
(b) … …. .
(c) to be free from all forms of violence from either
public or private sources.
[11] In what way does the defendant contend that the
actions of the defendant’s employees were justified? As
indicated earlier
in this judgment defendant pleaded that the police
officials concerned forced their way through in the face of
resistance on the
part of the plaintiff who was blocking their way.
That their actions were justified and or reasonably necessary in
order to effect
a lawful arrest of
Themba
or to prevent an escape from arrest. Defendant denied
that plaintiff was assaulted with a stick. In his evidence
Mthintso
stated that he pushed plaintiff aside.
Although he did not suggest that plaintiff fell as a result of being
pushed aside by him
it would seem that he suggests that she landed on
the ground. Because according to him, plaintiff was dragged across
the ground
when she held on to his right thigh.
[12] I have already alluded to what plaintiff’s
version is in this regard. Which then is the correct version of what
transpired
on that day? Not much criticism was leveled at plaintiff’s
evidence. Her evidence was assailed on the ground that her sister,
who she alleged was present at her home when the incident took place,
was not called. The way I understood her evidence in this
regard was
that her sister was in the toilet when the police arrived and only
came out as a result of her screams. If plaintiff
is to be penalized
or an adverse inference is to be drawn against her for failure to
call her sister as a witness, the same should
apply to the defendant.
Student Constable Gwayi
who
was in the company of
Mthintso
was
also not called to testify in support of defendant’s case.
Plaintiff’s evidence was also assailed on the basis that
the
name that is reflected in the medical report is
Noncedo
Jali
and not
Noncedo
Tshonefini
. She deposed to an affidavit
explaining that this was a mistake. During her testimony she further
explained that
Jali
was
her clan name which was supplied by her sister on admission at the
hospital because she could not speak as a result of the assault
on
her. This in my view is a satisfactory explanation of the discrepancy
regarding her last name.
[13] In my view plaintiff gave a good impression as a
witness. She struck me as a truthful witness. Had she wanted to
exaggerate
the extent of the assault on her, she could easily have
said
Gwayi
also
assaulted her, but she sis not. Her evidence was straightforward and
accords with probabilities of the case.
[14] The same however cannot be said of defendant’s
witness
Mthintso
. He
did not appear to be a particularly honest witness. He was not
forthcoming as to how the door was opened. Suggesting that the
other
part of the door was open and he used that open part to go in. Later
however he admitted that he forced the door open. Although
it is
clear that plaintiff landed on the ground,
Mthintso
did not admit that as a result of his pushing plaintiff
aside she fell. He does not explain how she landed on the ground, for
her
to be dragged across the ground. His explanation of how plaintiff
could have sustained the injuries that were observed on her by
the
doctor is improbable. He testified that plaintiff was facing
downwards when she was dragged across the ground. However the
injuries she sustained are located on her buttocks – extending
to the thighs. Hence I say the injuries are not consistent
with those
sustained in the manner suggested by
Mthitso
.
I say this mindful of the fact that the doctor who examined the
plaintiff did not indicate whether the injuries are consistent
with
assault with a stick or dragging in his report. He was not called to
testify about the injuries either. Be that as it may,
I am still of
the view that the injuries are not consistent with what
Mthintso
suggests happened. This brings me to question
whether, if
Mthintso’s
version was to be accepted, he was justified in dragging
plaintiff in the manner he suggests she was dragged in the
circumstances.
[15]
In
Govender
v Minister of Safety and Security
2001 (4) SA 262
SCA
the court was concerned with the use of force by the
police in effecting an arrest. (Old section 49 (1) of the Criminal
Procedure
Act51 of 1977) The court held that “
A person
fleeing from the police has usually not yet been convicted of an
offence. The presumption of innocence must be respected
in such a
case. But even an escaping convicted person has all the
constitutional rights mentioned above”. In
casu
we are
not even talking about a suspect or convict. The plaintiff was
neither suspect or a convict who, as was stated in
Govender
supra
also have constitutional rights”
.
[16] Adopting the approach suggested in
SFW
Group Ltd
above, I am of the view that
plaintiff’s version is credible, reliable and accords with
probabilities. She denied that
Mthintso
and his colleague introduced themselves.
Mthintso
confirmed that he did not inform her why they were
looking for
Themba
.
They were travelling in an unmarked motor vehicle, wearing civilian
clothing.
Mthintso’s
partner
was pregnant. The two could have been looking for
Themba
for any number of reasons. Without them introducing
themselves there was no way she could have known they are police. In
any event
she says she did not know
Themba
was home because the last time she checked he was not
home.
Mr Notyesi
who
acted for the plaintiff argued that she had a right to resist the
unlawful entry into her premises. I agree with
Mr
Notyesi
.
Mthintso
and
his partner did not have a search warrant. She did not give them
permission to enter her house. They did not have a warrant
for the
arrest of
Themba
. She
would therefore have been entitled to resist the unlawful search. In
the circumstances, I am satisfied that the actions of
defendant’s
employees on the day in question constituted a breach of plaintiff’s
constitutional right to security of
her person. I am satisfied
therefore that plaintiff should succeed in her claim for damages
arising out of the assault by an employee
of the defendant on the 22
January 2009.
[17] In determining what amount will be appropriate to
compensate the plaintiff for the damages she suffered, I will be
mindful
what
Watermeyer JA
stated
in
Sandler v Wholesale Coal Supplies Ltd
1941 AD
namely that “
it must
be recognized that though the law attempts to repair the wrong done
to a sufferer … .. … by compensating him
in money, yet
there are no scales by which pain and suffering can be measured and
there is no relationship between pain and money
which makes it
possible to express the one in terms of the other with any approach
to certainly. The amount to be awarded as compensation
can only be
determined by the broadest general considerations and the figure
arrived at must necessary be uncertain, depending
on the judge’s
view of what is fair in all the circumstances of the case”
.
Plaintiff is claiming an amount of R1 000 000.00 for damages. It is
trite that the amount of damages is determined by the nature,
duration and intensity of plaintiff’s suffering. There can be
no doubt that plaintiff suffered a great deal in the hands
of
Mthintso
. The
seriousness of the assault and the effect thereof on her is apparent
from the fact that her sister is the one who gave plaintiff’s
particulars at the hospital. This resulted in the furnishing of a
last name that does not appear in plaintiff’s identity
document. The seriousness of the assault is also apparent from the
extent of injuries plaintiff sustained. Plaintiff was 40 years
old at
the time and a mother of three children. She was going about her
business at her home when defendant’s employees arrived
and
proceeded to violate her right as stated above. There is however no
evidence that the injuries caused were of a permanent nature.
I will
however take into account that the injuries necessitated the
hospitalization of the plaintiff for three days. Be that as
it may, I
will be mindful of what was said by
Nugent JA
in
Minister of Safety and
Security v Seymour
2006 (6) SA 320
SCA at 326, paragraph [20]
,
namely that:
Money can never be more than a crude solatium for
deprivation of what in truth can never be restored and there is no
empirical measure
for loss. … … our courts are not
extravagant in compensating loss. It needs also to be kept in mind
when making such
awards that there are many legitimate calls upon the
public purse to ensure that other rights that are no less important
also receive
protection”.
In my view taking into
account all the factors that are relevant to this matter, an
appropriate award for damages would be that
of R150 000.00.
[18]
In the result the following
order will issue:
(a) Judgment is entered in favour of the plaintiff.
(b) Defendant is ordered to pay to the plaintiff
damages in the sum of R150 000.00 for pain, suffering, loss and
contumelia
.
(c) Interest in the sum of R150 000.00 at the legal
rate from date fourteen (14) days after judgment to date of payment.
(d) Costs of suit.
_____________
N
G BESHE
JUDGE
OF THE HIGHCOURT
APPEARANCES
For
the Plaintiff : Mr M Notyesi
Instructed
by : MVUZO NOTYESI INC.
2
nd
Floor
T
H Madala Chambers
MTHATHA
Tel.:
072 334 9357
For
the Defendant : Mr Gagela
Instructed
by : D M NOLANGENI & ASS.
27
Nelson Mandela Drive
MTHATHA
Tel.:
047 – 532 2799
Date
Heard : 29 & 30 August 2012
Date
Reserved : 30 August 2012
Date
Delivered : 25 October 2013