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[2012] ZAGPPHC 73
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Motau v Minister of Safety and Security and Others (30024/05) [2012] ZAGPPHC 73 (30 April 2012)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG DIVISION) (HELD AT PRETORIA)
CASE
NO.: 30024/05
DATE:30/04/2012
In
the matter between
MOTAU,
LUCAS
........................................................................................................
PLAINTIFF
vs
MINISTER
OF SAFETY AND
SECURITY
..................................................
FIRST
DEFENDANT
LEPHALALA
BENFORD
MAMOLOKO
.................................................
SECOND
DEFENDANT
MAMASHEGO
MADIMETSA
RONNY
.......................................................
THIRD
DEFENDANT
CORAM:
PZ EBERSOHN AJ
DATE
JUDGMENT HANDED DOWN 30th APRIL 2012
JUDGMENT
EBERSOHN
AJ:
[1]
The plaintiff, Lucas Motau, sued the Minister and the other two
defendants for damages.
[2]
The plaintiff alleged that he was on or about the 27th March 2005 at
Seshego assaulted by the second and third defendants who
hit him with
fists, kicked him with booted feet and struck him with a pistol on
his head, in his face and on his eye.
[3]
As a consequence of the said assault the plaintiff alleged that he
sustained serious injuries and became blind in the injured
eye.
[4]
The plaintiff applied for condonation for not addressing his letter
of notification in terms of section 3 to the Minister but
instead to
the Provincial Office of the Minister. The application was not
opposed by the defendants and the Court granted condonation
and that
dispensed with the special plea of the defendants in this regard.
[5]
The second and third defendants noted an "objection"
apparently intending to mean a "special plea" to the
effect
that they were not served with copies of the summons in the matter.
Proof was, however, adduced that both were in fact served.
[6]
Paragraph 12.2 of the amended plea of the defendants read as Page 2
of 11 follows:
"12.2
The defendants specifically aver that:
12.2.1
The plaintiff was found committing an offence of public drinking;
12.2.2
The plaintiff refused to heed the warning to desist from the
aforesaid unlawful conduct and resisted the resultant arrest;
12.2.3
The second and third defendants had to use minimum force which became
required and necessary in order for them to effect
the arrest of the
plaintiff."
[7]
It was agreed that the merits and quantum of the matter be separated.
[8]
The plaintiff was the first witness. He testified that he was 28
years old and passed Grade 10 at school. He testified that
he was not
blind in his eye before the assault on him by the police.
[9]
The evidence disclosed that the plaintiff and a group of his friends
returned from an all-night party early in the morning,
when it was
still scarcely light, with a taxi which dropped them off at a corner
in Seshego. They had with them a cooler box and
the plaintiff and
other members of the party had unopened bottles of beer in their
hands.
[10]
They noticed the police vehicle approaching the corner where they
were and the third defendant, who was driving the car shouted
at them
and gesticulated with his hand and the members of the party fled in
all directions of foot.
[11]
The plaintiff denied that he was drinking from the bottle and stated
that both bottles he carried were still sealed.
[12]
He was chased and caught by the second and third defendants and was
then brutally assaulted with fists and kicked with booted
feet, the
third defendant struck him on his head, face and eye with his pistol.
His eye was bleeding thereafter.
[13]
The assault lasted a long while and he was thereafter handcuffed and
taken to the police station.
[14]
At the police station, when the station commander noticed the
injuries to his head and the blood flowing from his eye, he ordered
that the plaintiff be taken to hospital by two other police officers.
The plaintiff remained in hospital for several months.
[15]
As was already stated in paragraph [6] supra it was the case of the
police that they used minimum force to arrest the plaintiff,
it was
not pleaded that the plaintiff tried to kick the third defendant,
that the plaintiff broke the beer bottle and tried to
stab the police
officers with the broken bottle, which the third defendant,
apparently as an afterthought testified about.
[16]
The third defendant gave the strangest of versions as to how the
plaintiff tried to attack the police officers and how they
had to
apply force to subdue him and to handcuff and arrest him. The third
defendant testified that he was driving a police vehicle
just after
six in the morning and that he saw the plaintiff standing next to the
road with some other people and that the plaintiff
was drinking from
a Castle Light dumpy bottle. He also noticed the cooler box next to
the group of people. He drove up to the group
with the intention to
arrest the one who was drinking from the bottle. He stated that the
person stepped back. He stated that he
informed the plaintiff that it
was illegal to drink in public to which the plaintiff replied "to
hell". All of these
allegations were never put to the plaintiff
in cross-examination. He then tried to catch the plaintiff with his
hands. The plaintiff
then stepped back again and this time smashed
the bottle and tried to kick the third defendant. The third defendant
then jumped
on him and caught the plaintiff. The third defendant
testified that the plaintiff then butted him with his head and he
lost one
tooth as a result thereof and that the plaintiff thereafter
bit him. The second defendant then assisted and the plaintiff was
handcuffed.
[17]
He then took the plaintiff to the police station where he ordered
that the plaintiff be charged with three charges namely drinking
in
public, resisting arrest and assaulting a police officer. He then
went to the hospital to have his own injuries attended to.
The third
defendant stated that he did not go back later to the police station
to check on the plaintiff.
[18]
The captain was then cross-examined by Mr Kekana. He could not
explain why it was put to the plaintiff that he had a bottle
of
Amstel Lager with him which contradicted the evidence of the third
defendant that it was a Castle Light dumpy bottle.
[19]
The captain then denied that he testified that the plaintiff stepped
back and smashed the beer bottle.
[20]
It was also put to the captain that it was not put to the plaintiff
that he tried to kick the captain.
[21]
The captain denied that there was blood on the head of the plaintiff
and that the plaintiff's eye was bleeding.
[22]
It was put to the captain that about 15 people alighted from the taxi
and were standing on the corner. This the captain denied.
He also
denied that a taxi dropped them off there. It is strange that a party
of about 15 people would stand early in the morning,
just after six
a.m., on a corner if they were not brought there by a vehicle.
[23]
It was put to the captain that as the plaintiff was bleeding from his
eye and head the station commander ordered that he be
taken by two
police officers to the hospital. To this the captain replied that he
could not testify what happened. It is common
cause that the
plaintiff in fact was taken to the hospital as he alleged.
[24]
There are several worrying factors in this case. The plaintiff in
fact testified that the captain is known to be a person who
without
any valid reason and without even provocation would assault people.
It is clear that in casu the captain also assaulted
the plaintiff in
a brutal and vicious fashion causing the plaintiff to lose his eye
and suffer pain and the indignity of the assault.
[25]
The matter of the two forged statements purported by the police to
have been made to it by the plaintiff must receive urgent
attention
by the authorities. The trial was postponed on the first day to
enable the Police to obtain the services of a handwriting
expert to
prove that the signatures to the two statements were those of the
plaintiff. Not surprisingly, when bearing in mind the
other
despicable conduct of the police officers, the police did not even
try to prove that they were the signatures of the plaintiff.
It is
clearly a prima facie case of forging and uttering on the part of
police officers. No wonder the police refused access to
the dockets
to the private investigator employed by the attorneys of the
plaintiff when he wanted to check the signatures on the
statements.
[26]
The captain was clearly committing perjury in this Court when he
testified that the plaintiff was not injured when he delivered
him to
the police station to be charged. In this regard one merely has to
look at the medical report by Dr Israel Mukwheto to see
the plainly
visible injury to the eye of the plaintiff. Even the Station
Commander saw the injury and he caused the plaintiff to
be taken to
hospital.
[27]
There is also the forging of the entries on the docket being page 6
in Bundle "B". The docket shows that the captain
charged
the plaintiff in his own handwriting with drinking in public and not
with resisting arrest and assaulting a police officer.
The captain
was committing perjury in this regard too. The matter against the
plaintiff went to court and only the charge of drinking
in public was
dealt with by the magistrate and according to the note written by the
prosecutor on the docket was to the effect
that the accused was
cautioned and discharged. In reply to questions put to the captain by
the Court, the captain admitted that
it was he who wrote on the
docket. What he overlooked before falsifying the docket is that the
extra charges were not raised in
court and the prosecutor made no
entry about them. The captain, to bolster his evidence and most
likely to protect him against
disciplinary action, made these entries
in his own handwriting according to his admission in court.
[28]
The plaintiff also lodged a complaint with the police under docket no
29/4/2005. According to the front page this case was
not yet dealt
with in court nor was there a note that the prosecutor declined to
prosecute the matter. This Court is perturbed
to note that there was
an apparent inactivity on the part of the Police to investigate the
case against the captain. This requires
looking into by the police.
[29]
The general conduct of the police, the unprovoked and vicious assault
on the person of the plaintiff, and the forging and uttering
of
documents and lack of prosecution of at least the captain is causing
concern and it is prima facie dangerous to the public to
be exposed
to such conduct by such people and the Police must look into the
matter and the Registrar of this Court will be requested
to make a
copy of the papers and to have the evidence transcribed and to refer
the matter to the independent Investigating Body
in the police force.
[30]
The question of costs must be considered. The police in a vicious
manner and being under no provocation assaulted the plaintiff.
They
lied in court. They forged documents and uttered them. It is clear
that a punitive cost order should be made.
[31]
The following order is made:
1.
The plaintiff succeeds 100% with the merits of the matter.
2.
The respondents are to pay the costs of the plaintiff on the scale of
attorney and own client such costs to include all reserved
costs.
3.The
plaintiff is declared to have been a necessary witness and his
travelling and accommodation costs to attend the trial, are
also
allowed.
4.The
matter is to be enrolled in consultation with the presiding judge to
hear and adjudicate the quantum in the event of the parties
failing
to reach an agreement and settle it.
5.
The Registrar of this Court is directed to cause the evidence led in
the matter to be transcribed and the pleadings to be duplicated
and
to forward it, together with a copy of this judgment and order to the
independent investigating Authority of the South African
Police
Services.
P.Z.
EBERSOHN
ACTING
JUDGE OF THE HIGH COURT
Plaintiff's
counsel:Adv M Kekana
Plaintiff's
attorneys:Legodi Phatudi Incorporated
Respondents'
counsel:Adv. Babedi
Respondents'
attorneys:State Attorney