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2012
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[2012] ZAGPPHC 99
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Mabasa v Minister of Safety and Security (69967/09) [2012] ZAGPPHC 99 (12 June 2012)
NOT
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT,
PRETORIA
(REPUBLIC OF SOUTH AFRICA)
CASE
NUMBER: 69967/09
DATE:
2012 June 12
TIYANI
JUSTICE
MABASA
.......................................................................................
PLAINTIFF
and
MINISTER
OF SAFETY AND
SECURITY
................................................................
DEFENDANT
JUDGMENT
MABUSE
J:
1.
This is an action for payment of money. The plaintiff, an adult male
student of 389 Visagie Street. Visagie Court. Pretoria,
has sued out
summons against the defendant for payment of various amounts of
money. He claims R30,500,000.00 for unlawful and wrongful
arrest of
which R500.00.00 is for past hospital, medical and travelling costs;
R100 000.00 for future hospital, medical and related
costs and
R20.000.00 for general damages. The plaintiff's action arises from an
incident that took place at around flat 35 of Gilrock
Building in
Durban on 22 April 2007 where and when, according to him, he was
assaulted by some members of the South African Police
Services who
were there and then acting within their course and scope of
employment with the defendant. The plaintiff contends
that such
members of the South African Police Services assaulted him,
unlawfully arrested and detained him and finally wrongfully
and
administratively set the low in motion by laying a false charge of
housebreaking and theft against him.
2.
According to the pleadings, the above mentioned claims by the
plaintiff were referred to in that order respectively as claims
1, 2
and 3. The plaintiff abandoned his third claim during the course of
his trial and particularly during the course ot his testimony.
The
issue regarding costs in respect of the aforementioned abandoned
claim was reserved for later judgment.
3.
Right at the commencement of the trial, the parties agreed to
separate Ihe issue relating to quantum from the merits, to postpone
it sine die and to proceed only with the matter on the merits only.
The application to postpone the issue relating to quantum was
resultantly granted.
4.
Perhaps it is only apposite to give an exposition of how the
plaintiff happened to be in the Gilrock building and in particular
in
flat 35 on that fateful day. The plaintiff had come to Durban to
further his education at the Durban University of Technology
("DUT")
where some of his friends and home boys were already attending.
Although he had completed all the registration
formalities at the
said university on that particular day, he still had not secured a
place where he would be staying in Durban
while he was a student at
the said University. For that particular day however he was not
stranded for, although he had no accommodation,
his friends and home
boys already had their own accommodation at the Gilrock Hotel and
would, for that reason, have been prepared,
as they did on this date
in question, to accommodate him . One such Iriend, one Abdulla
Thulani Shabangu ("Shabangu")
was a tenant of flat 56 of
the same building and another friend of theirsjiti Khoza ("Khoza"),
was a tenant of flat 35,
the flat where the plaintiff's cause of
action arose.
5.
During the day, Shabangu had sent Khoza to the caretaker, one
Gerhard Enslin ("Enslin") to inform him about the presence
of the plaintiff in that building and furthermore to secure
permission for him to be in that building. When Khoza returned from
the caretaker, he came back with a slip, which was a piece of formal
paper with, among others, the names of the guest, in this
particular
case, the plaintiff, on it. This document indicated clearly that the
plaintiff had been granted permission by the caretaker
to be in that
building. The procedure that Shabangu had followed to secure
permission for the plaintiff was the correct one. Though
Shabangu was
unable to produce thiss piece of paper al the trial, he testified
that he saw the slip as he received it from Khoza
and that he read
it. Because he never thought that it would be required at a later
stage he threw it away. It was not in dispute
notwithstanding that
such a document had been issued by the caretaker.
6.
In the evening Shabangu and Khoza wanted to go out, but the plaintiff
did not. He felt exhausted and decided that he needed to
rest. He
would have had to rest in flat 56 but because there was someone eise
in that flat, it was suggested by Shabangu that the
plaintiff should
go and rest in flat 35. After all these arrangements had been made
the plaintiff's friends left and left the plaintiff
behind in flat
35.
7.The
unsuspecting plaintiff was sleeping in flat 35 of the said building
when strange men entered the flat and, without having
uttered any
word, pounced on him, pulled and assaulted him. While pulling and
pushing him to the motor vehicle that was waiting
outside in the
parking bays they hit all over the body with an unknown object. He
was kicked, sprayed with a blinding spray, assaulted
in the chest and
hurled into the back of the police motor vehicle, but not before he
was handcuffed.
8.
As a consequence of the said assault, he sustained the following
injuries:
80%
of his right leg and his right thigh were injured. His right thigh
was swollen up, he could not even walk on his own. These
injuries
were caused by the unknown object with which he was assaulted. Blood
came from his nose. As a consequence of the spray
he was blinded for
more or less five minutes.
9.
He was detained firstly at South Side Police Station and later at CR
Swart Police Station cells. He made his first court appearance
on 24
January 2007 where he was informed of his charges by the court. He
was informed that he had been charged with housebreaking
with intent
to commit an offence unknown to the State and in addition thereto
with resisting arrest. On 24 January 2007 the case
against him was
postponed to 6 February 2007 and he was ordered to be kept in custody
at Durban Westville Correctional Services
pending his following
appearance and furthermore pending confirmation of his residential
address.
10.
While he was at the said Correctional Services he suffered, as a
result of no one's fault, some bodily injuries which necessitated
medical treatment at a local hospital. When he passed through a
scanner at Durban Westville Correctional Services, for inexplicable
reasons, he collapsed and lost consciousness. Later when he regained
consciousness, he was on a wheelchair. The consequence of
this
incident was loss of taste, especially of salt. The charges against
him were withdrawn on 25 January 2007 after the caretaker
had
furnished an affidavit in which he applied for the withdrawal of the
charges against him on the basis that he had made a mistake
on 23
July 2007 when he lodged a complaint against the plaintiff. According
to his affidavit, he did not know that the plaintiff
had permission
to be in Gilrock Building.
He
stated furthermore that he did not at the material time have any
knowledge that the plaintiff was in the flat.
11.
In resisting the plaintiff's claim, the defendanl relied firstly on
the evidence of one the caretaker; secondly on the evidence
of a
certain Sibusiso Chiliza ("Chiliza") and one Mandlenkosi
Ezekiel Ntuli ("Ntuli") both members of the South
African
Poiice Services. According to the caretaker, a day before the
incident he had seen two boys carrying crates of beers into
Gilrock
Building. Later he heard a lot of female voices inside flat 35. the
noise continued right through the Sunday night. The
following day
around 22h00, he patrolled the building. Later white he was inside
flat 36 where he was staying he heard a sound
of a breaking glass. He
walked out to investigate. He discovered that the burglar gate of
flat 35 was open. He also noticed a lot
of pieces of glass in the
passage. He realised immediately that the door glass of flat 35 had
been shattered and that Ihe door
itself was slightly ajar.
12.
He pushed the door open and called out the tenant's names. He tried
to switch on the lights in the flat but there was no electricity
in
that flat. Then he heard a male voice swearing at him in Isizulu or
Sesotho. He could not understand it. It was a voice he could
not
recognize. He saw a figure of a male sitting on a bed. When he asked
this male who he was and what he was doing in the flat,
the male told
him to "fuck off". The male continued and told him that he
had a bush knife with him and threatened to
stab him with it. He went
out of the flat, took out his cell phone, called the police and
waited for them at the door of his flat.
The purpose ot waiting there
was to guard against the person in flat 35 escaping.
13.
When the police arrived he told him that he had a suspect ot
housebreaking; that he did not know his name and that that suspect
broke the door. He told the police furthermore that earlier he had
seen the tenants of flat 35 going out; that the tenant had locked
the
burglar gate and had told him that he and his friend were going to a
party. While he was waiting for the police he could hear
some screams
and someone banging objects inside flat 35.
14.
The policemen, one short and thin and the other one well built
arrived where he was waiting. The shorter one entered flat 35
and, as
he did so, identified himself as a policeman to the man inside the
flat. He asked the person who was in the flat who he
was and what he
was doing. All of a sudden he, the caretaker, saw the policeman
retreating with the person who was in the flat
holding him by his
throat and pushing him towards the outside of the flat. Both
the
policemen and that person came out of the flat upon which he stepped
back quickly.
15.
That person pushed the policemen up to the parapet wall where there
was light. He grabbed the short policeman while the other
policeman
grabbed the suspect. Immediately thereafter he sprayed the person
with pepper spray in the face. After the other policeman
had grabbed
him, that suspect tried to wrestle the policeman's fire arm from its
holster. The shorter policeman produced his handcuffs
and wrapped
them around the person's wrists. The person was dragged to the motor
vehicle while he was resisting and kicking. When
they arrived in the
foyer and in order to prevent the suspect from breaking the door
glass, they grabbed him by both his feet and
carried him in that
manner right up to the police motor vehicle.
16.
The suspect was the plaintiff in this matter. The plaintiff did not
have permission to sleep in flat 35. According to him,
he was the
only person who would have granted permission to any person who
wanted to be in Gilrock building. The plaintiff had
no such
permission to be in that building. From the building the plaintiff
was conveyed to the police station where he was delivered.
When he
was taken out of the police motor vehicle at the police station, the
plaintiff was still kicking and screaming. He continued
screaming and
he could hear him scream while he was in the charge office even after
he, the plaintiff, had been taken into the
police station cells.
17.
Later the plaintiff's friends returned. He told them that someone had
broken into their flat. This he told to the tenant of
flat 35. He had
no idea who the tenants of flat 56 were nor did he know that there
was a relationship between the tenants of the
two flats. The tenants
of flat 35 and 56 had told him that the plaintiff was their friend
and that he had visited them for the
weekend. This was the first time
he knew why the plaintiff was in the flat. He asked for the
plaintiff's mother's cell number and
as soon as it was given to him
called her and reported to her what had happened.
18.
According to Chiliza on 22 January 2007 he was executing his official
duties in the company of Ntuli and in the police motor
vehicle when
they received a complaint of housebreaking that had taken place on
the third floor of Gilrock building in Durban.
They drove there and
on their arrival met the supervisor, actually the caretaker, who told
them that he was the complainant. He
then took them to a certain flat
on the third floor of the building where they found it dark. The door
was open. The complainant
told him that the suspect was inside the
flat.
19.
Followed by Ntuli, he got into the flat and on entering the flat
noticed the person move towards the window. As he did not know
whether the person was going 1o flee, Ntuli quickly moved to the
window side in order to prevent that person from escaping through
the
window. That person then turned and came towards him. That person
grabbed him by his throat and pushed him outside into the
corridor.
He screamed and told Ntuli that the person was fighting. Ntuli came
out of the flat rushing and tried and, without any
success, to
dislodge that person. It was only at this stage that the caretaker
fished out a pepper spray and sprayed that person
that the person
released him.
20.They
handcuffed him and, because he was unwilling to walk on his own to
the motor vehicle, carried him by his feet and hands.
Although he
resisted when they tried to put him in the back of the police van,
they managed ultimately. He denied that the person
was assaulted.
After he had been loaded in the back of the police van, the person
made a lot of noise. He showed abnormal behaviour.
As soon as they
had arrived at the police station, the suspect got out of the back of
the motor vehicle and walked on his own.
Once they got into the
police station took down the caretaker's statement while Ntuli
himself wrote down his arrest statement.
Later they conveyed the
suspect to the CR Swart Police Station.
21.
The suspect was arrested for housebreaking. A complaint had been
laid. The suspect fought against them on their arrival. The
caretaker
had told them that he heard the sound of a break-in but did not see
who broke in. When they arrested him, the suspect
did not give them
any chance to inform him that he was being arrested and to explain
his rights to him.
22.
According to Ntuli, tie and Chiiiza received, while they were
performing their duties, a report that housebreaking was in the
process of being committed at Gilrock building. They rushed to the
said building in their motor vehicle, a police van, which was
been
driven al the time by Chiliza where on their arrival they were shown
where the incident had taken place.
23.
They were shown the flat by the complainant and told that the suspect
was inside the said flat. When they arrived at the door
the suspect
fled but he stopped him. The suspect then turned and headed to the
exit door in the direction of Chiliza. Suddenly
he heard Chiliza
scream for help. He rushed to him and found that the suspect had
grabbed Chiliza by his shirt collars and was
pushing him towards the
outside wall. He tried unsuccessfully to pull the suspect away from
Chiliza but with the assistance of
the caretaker he managed. The
caretaker sprayed the suspect with pepper spray. He was immediately
subdued and handcuffed.
24.
The battlefield between the parties is twofold. Firstly, the court is
called upon to decide whether or not the plaintiff was
assaulted by
the employees of the defendant and secondly, whether the plaintiff's
arrest was unlawful. In terms of the principles
of our law,
especially Pillay vs Krishna and Another
1946 AD 946
the onus lies on
the plaintiff to prove his case on the balance of probabilities. In
Gates v. Gates
1939 AD 150
at page 154, the court set out the said
principle as follows:
"Wow
in a civil case, the party on whom the burden of proof (in the sense
of what Wigmore calls the risk of non-persuasion)
lies, is required
to satisfy the court that the balance of probabilities is in his
favour."
25.
It is clear that the police drove to the Gilrock building following
a complaint that the caretaker had made by telephone to
the police
station. On their arrival at the said building, the police met the
caretaker who confirmed that he was the one who had
complained about
burglary at that particular flat. I now turn to examining the
evidence relating to the said report in order to
establish its nature
and furthermore to determine whether or not the police acted
reasonably when, on the basis of the relevant
report, they arrested
the plaintiff.
26.
On his own version the caretaker did not see the person who broke the
door glass of flat 35 because at the time he heard the
sound of
breaking glass he was still in his flat. Even after he had walked out
of his flat to investigate, he saw no one he could
have suspected as
the person who had broken the glass of the door. He could therefore
not confidently point any accusing finger
at the plaintiff as the
person who had caused the damage to the door.
27.
The police went to the scene only because they had received a report
from the police station about the offence. It is clear
that they had
no chance to insist on being furnished with a written statement in
which the complaint of housebreaking was contained.
They had, with
haste, driven to the building where the incident was reported to have
taken place as Chiiiza testified, or where
housebreaking was in the
process of taking place, as Ntuli himself testified. They did not act
on the basis of the report that
they received from the police station
but acted so on the basis of the verbal report that they had received
from the caretaker
on their arrival at the Gilrock building.
28.
There is no consensus between the police witnesses as to the nature
of the report they received from the caretaker. Right at
the end of
his evidence, Chiiiza, referring to the caretaker as the supervisor,
testified that the supervisor said that he heard
a sound of breaking
glass but did not see who broke it. In his evidence-in-chief, Ntuli
did not testify about a report that the
caretaker had made to them on
their arrival but however did so under cross-examination. He was
asked by Mr. Baloyi, counsel tor
the plaintiff, whether the caretaker
did not, on their arrival, report to them that, when the door glass
was broken he was inside
his flat, whereupon he confirmed that they
did receive such a report from the caretaker. Consequently it is
common cause that the
caretaker did not see the person who damaged
the door glass of flat 35. Furthermore it is common cause that he
told the two policemen
that he did not see who broke the glass of the
door to the said flat 35. The question now is was the police conduct
in acting on
the basis of the report that they received from the
caretaker, when they arrived, reasonable?
29.
The test employed in the determination of whether a policeman acted
lawfully when he arrested a person is objective. The crucial
question
would be whether or not the circumstances that prevailed at the time
or the report that he received about an offence was
such that a
reasonable man finding himself in the same position as the Chiliza
and Ntuli, would form an opinion reasonably that
the plaintiff had
committed or caused damage to the door of flal 35. In Duncan v The
Minister of Law and Order 1986(2) S A 805
AD at p. 814 C-E Van
Heerden JA set out the test as follows:
"it
was common cause that the question whether a peace officer reasonably
suspects a person of having committed an offence
within the ambit of
s. 40(1 }(b) of the Act is objectively justifiable. And it seems
clear that the test is not whether a policeman
has reason to suspect,
but whether, on an objective approach, he in fact has reasonable
grounds for his suspicion."
The
policeman shall consider the situation, assess it and decide
objectively whether it warrants an arrest. In order to do so the
policeman must find that the suspect has committed an offence and
this he must find in the report, in this particular case, of
the
caretaker. S. 40 of the Criminal Procedure Act 51 of 1977 ("the
CPA") deals with the various circumstances under
which a suspect
may be arrested by a peace officer. The arrest of the plaintiff on 22
Janaury 2007 by Chiliza and Ntuli was affected
in terms of the
provisions of S. 40 of the CPA. The arrest was effected without a
warrant. The said section authorises the peace
officer to effect an
arrest, in circumstances set out in S. 40 supra. It Is the
plaintiff's case that the employees of the defendant
arrested him
without a warrant of arrest and that the arrest itself was, on his
evidence, unlawful. It was unlawful because it
could not in law be
justified on any ground.
30.
The defendant's view with regard to the said arrest is that he admits
the arrest and detention of the plaintiff on 22 January
2007 but
contends that it was lawful by reason of the fact that a complaint
had been laid against the plaintiff; the plaintiff
was arrested by
police officers who at the time, were acting within their scope of
duty; that he had been informed of his charges
and that the correct
procedures were followed in effecting his arrest and detention.
31.
In dealing with the arrest effected in terms of S. 40p )(b) of the
CPA, the court had the following 1o say in Mabona and Another
vs
Minister of Law and Order and Others 1988(2) SA 654 SELCD at p. 658
D-F:
'The
test of whether a suspicion is reasonably entertained within the
meaning of S. 40(1)(b) is objective "S v Nel and Another
1980(4)
SA 28 E at 33 H would a reasonable man in the second defendant's
position and possessed of some information have considered
that there
were good and sufficient grounds for suspecting that the plaintiffs
were guilty of conspiracy to commit robbery or possession
of stolen
properly knowing it to have been stolen."
Considering
the evidence of the caretaker there are no facts on the basis of
which he drew an inference that it was the plaintiff
who had caused
the damage. The evidence of the caretaker does not exclude the
reasonable possibility of someone breaking the door
glass of flal 35
and fleeing from the scene. There is no basis on which the caretaker
could have concluded that the person who
broke the glass fled into
flat 35 or did nol flee into other directions from the scene. There
is therefore no iota of reliable
evidence as to why the plaintiff was
pointed out as the suspect. It is clear from his evidence that the
caretaker was adamant that
even if he had not witnessed the damage to
the door that it was the plaintiff who had broken the door. In my
view the caretaker's
inference was not based on any reasonable
grounds.
32.
Applying the principles set out in Mabona and Another v. Minister of
Law and Order and Another supra to the facts of this case,
the
question that needs to be asked is whether a reasonable man, in the
positions of Chiiiza and Ntuli, and possessed of the information
contained in the report by the caretaker that: (a) there was damage
to the door glass of flat 35; (b) he only heard the door glass
break
while he was in flat 36; (c) that after hearing the sound of breaking
glass he rushed out to investigate: (d) that he saw
no one who caused
the damage.
33.
The above authority of Mabona sets out what the peace officer must
do after receiving the complaint but before effecting an
arrest in
the following manner:
"The
reasonable man would therefore analyse and assess the quality of the
information at his disposal critically, and he will
not accept it
likely or without checking it where it can be checked. It is only
after an examination of this kind that he will
allow himself to
entertain the suspicion that will justify an arrest."
34.
What is clear from the evidence of the defendant's witnesses is that
they acted as
soon as they received a report from the caretaker.
In my view they lailed to act
reasonably after they were told that
the caretaker did not see who broke or caused
the damage to the
door. In Gellman v. Minister of Safety and Security 2008(1) SACR
446W
at page 460 E, the court stated that:
"The
arresting officer plainly did not evaluate the very limited
"evidence" at his disposal critically, had he done
so, it
would have been immediately apparent to him that this was a complaint
made by a disgruntled employee (however sympathetic
a position may
have seem to him) engaged in a "domestic" dispute with her
employer."
The
lesson that one learns from the above statement is that the arresting
peace officer should first check the information given
to him. It is
his duty to assess the information given to him to establish whether
such information would justify an arrest. He
should not merely rely
on the fact that a complaint has been made. Once he has assessed the
information given to him the discretion
whether or not to effect an
arrest is his to exercise but not capriciously. In the said authority
of Duncan v. Minister of Law
and Order the court had the following to
say:
"If
the jurisdictional requirements are satisfied, the peace officer may
invoke the power conferred by the subsection, i.e.
he may arrest the
suspect. In other words he, he then has the discretion as to whether
or not to exercise that power (cf Holgarde-Mohammed
v. Duke {1984}
1
All ER 1054(HL)
at 1057. No doubt the discretion must be properly
exercised. Grounds on which the exercise of the discretion can be
questioned
narrowly circumscribed."
The
police officers who arrested the plaintiff failed to ask the
caretaker why he pointed out the plaintiff as the person who had
damaged the door, if he did not see who had done so.
35.
In the end I find that there were no reasonable grounds of
justification for the arrest of the plaintiff and that his arrest
on
22 January 2007 by the defendant's employees could not be justified.
I find that the said arrest was therefore unlawful.
36.
The plaintiff's first claim against the defendant is that at the
time of his arrest he was assaulted by the police and consequently
he
sustained certain bodily injuries. As a result of such injuries, he
was taken to Addington Hospital, as it then was called,
where he
received medical trealment. He claims damages for the said assault.
Although the plaintiff's summons mentioned a variety
of objects with
which he was assaulted, in his testimony, the plaintiff only told the
court that, besides being kicked, he was
assaulted with fists, pepper
spray and unknown objects. It is now clear that it was not the police
but the caretaker who used the
pepper spray on him. The caretaker has
not been cited in this action and his conduct therefore, whether
unlawful or not, merits
no further consideration.
37.
It is not in dispute that when the plaintiff's friends left him
there was nothing wrong with his health. He had not complained
about
his health. It is also clear that he only sustained his injuries
during the period in which he was in the company of the
police and
the caretaker. According to his evidence, he was assaulted by the
police. At least he gave evidence that established
the provenance of
his injuries and the circumstances under which he sustained them. On
the other hand the caretaker testified that
the plaintiff did not
sustain any injuries until he got into the back of the police van.
This he testified after he had told the
court that the plaintiff
sustained no injuries while he was being taken to the police van. At
any rate the plaintiff could not
have sustained the injuries while he
was being taken to the police van because, according to the testimony
of Chiliza, due to the
fact that he was unwilling to walk on his own
after he had been handcuffed, the plaintiff was carried from flat 35
to the police
motor vehicle parked outside the Gilrock building. He
repeated this evidence even under cross examination. In carrying him,
they
held him by his feet and hands.
38.
Chiiiza denied that the plaintiff was assaulted with batons.
Although Chiiiza testified that the plaintiff was kicking around
he
however never testified nor did he suggest that it was the kicking
that resulted in his injuries. The possibility that he might
have
incurred his injuries during the kicking that Chiiiza testified about
should therefore be excluded. Neither Chiiiza nor the
caretaker
testified or suggested that the plaintiff sustained any injuries when
he was put inside the police motor vehicle.
39.
The evidence of the caretaker and Chiiiza that the suspect was
carried to the police motor vehicle and furthermore that he was
not
injured whilst he was being carried to the motor vehicle was
corroborated by Ntuli. He went further and stated that the plaintiff
was carried to the police motor vehicle by all three of them, him,
Chiiiza and the caretaker and that one carried the plaintiff
by his
legs, the second by his body and the third by his shoulders while his
hands had been handcuffed and that they carried him
in that manner
into the van. According to him, it was still difficult to put him in
the police van but notwithstanding the difficulties
mainly due to the
plaintiff's resistance, they managed to put him inside the police van
by pushing him. He confirmed furthermore
that when they pushed him
into the police van the plaintiff was not injured.
40.
Although Ntuli testified that on their way to the police station the
plaintiff was kicking inside the police van he could not
testify that
the plaintiff sustained any injuries as a consequence of his kicking
while he was in the back of the police van nor
did he suggest that he
might have suffered any injuries under those circumstances. The
evidence that the plaintiff did not sustain
any injuries whilst he
was in the back of the police van is borne out by the evidence of ail
the defendant's witnesses who testified
that when the plaintiff
walked from the police van at the police station he was walking on
his own and without any troubles. The
evidence of the defendant's
witness has unequivocally excluded any reasonable possibility of the
plaintiff having sustained any
injuries between flat 35 of Gilrock
Building and the first police station where he was taken to. Entry
2017 of the police Occurrence
Book also reported that the suspect,
Justice Mabasa "was free from injuries".
41.
Despite all these denials and despite furthermore the records of the
Police Occurrence Book, the plaintiff was limping, his
leg was
swollen up and he was taken to the hospital for medical treatment. He
was diagnosed with the following injuries at Addington
Hospital,
tender forehead, swollen right foot, swollen right leg, he was also
taken to Pretoria Academic Hospital, now Steve Biko
Academic
Hospital, where the same medical conditions were diagnosed.
42.
Then if it is not in dispute that the plaintiff was treated at
Addington Hospital for the injuries that he testified were inflicted
by the police on him and while the police themselves exclude, in
their evidence, every reasonable possibility of the plaintiff
having
sustained any injuries from flat 35 of Gilrock Building to the police
station, then the only reasonable inference is that
the plaintiff
sustained these injuries under the circumstances testified by him. I
therefore find that on the probabilities the
plaintiff's version is
more probable than the defendant's version. Accordingly I find that
on 22 January 2007 the defendant's employees,
who were at all
material times acting within their scope and employment with the
defendant, assaulted the plaintiff.
43.
I only have one word to say with regard to the evidence of the
caretaker. His evidence is ludicrous and not reliable. He cannot
be
trusted with the truth. As to other two witnesses their version is
highly improbable. There is evidence by both the plaintiff
that when
he was arrested he was not wearing any shoes and by the plaintiff's
witness that they went to see the plaintiff at CR
Swart Police
Station the following day and that they found the plaintiff and that
when they saw the plaintiff he was not wearing
any shoes and T-shirt.
This evidence, in my view, is damning because it lends credence to
the plaintiff's evidence that he was
arrested while he was sleeping.
It also makes the defendant's witness' version highly improbable.
Again it is highly improbable
that the plaintiff, who at the stage
was 17-18 years old and who was described by Ntuli as a slender boy
and by Chiliza as a short
and slender person could have fought
against the police as they testified. Their version is therefore not
probable. In my view,
the plaintiff must succeed in his claim and
accordingly I make the following order:
1.
Judgment on the merits is granted in favour of the plaintiff against
the defendant in respect of claims 1 and 2.
2.The
issue regarding quantum is postponed sine die.
3.The
defendant is ordered to pay the costs of the plaintiff's action.
PM
MABUSE
JUDGE
OF THE HIGH COURT
Appearances:
Plaintiffs
Attorneys: Mashamba Inc:
Plaintiffs
Counsel: Adv. R Baloyi
Defendant's
Attorneys:State Atorney, Pretoria
Defendants
Counsel: Adv. EM Mere
Date
Heard:10-14 October 2011
Date
of Judgment:2012 June 12