About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2012
>>
[2012] ZAGPPHC 146
|
|
Mohlala v Minister of Safety and Security (69479/09) [2012] ZAGPPHC 146 (3 August 2012)
NOT
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT,
PRETORIA
(REPUBLIC OF SOUTH AFRICA)
CASE
NUMBER: 69479/09
DATE:3
August 2012
WANDILE
PROMISE
MOHLALA
...............................................................
APPLICANT
V
MINISTER
OF SAFETY AND
SECURITY
…............................................
RESPONDENT
JUDGMENT
MABUSE
J:
1.
This is one of the three matters that were heard simultaneously
because of their unique situations. They all arose from the same
set
of facts. In this case, the plaintiff is Wandile Promise Mohlala, the
nephew of the plaintiff in case no. 69480/09. He claims
from the
defendant, who is cited in this matter in his official capacity,
payment of R250,000.00 plus ancillary relief.
2.
In his particulars of claim, he sets forth the cause of action as
follows. On 29 January 2009 and at Kanyamazane one Mthombeni,
who at
the time was accompanied by some members of the South African Police
Service and whose identity were to him unknown, arrested
him without
a warrant and detained him for more or less three hours.
3.
Following his arrest, the second defendant and the said members
assaulted him and tortured him the following manner:
3.1
He was slapped or clapped in the face;
3.2
He was hit several times with a book, according to his own evidence a
dictionary at the back of his head;
3.3
He was hit with open hands on his head;
3.4
He was covered with a plastic bag over his whole head, face and
mouth, up to his neck and smothered;
3.5
He was electrocuted with an electric belt which was remotely operated
with a portable device.
4.
According to his testimony, the assault commenced at house no. 3432
Kanyamazane on 29 January 2009 during the police investigations
of
the assassination of his uncle. On this particular day, although he
was a student during paralegal studies he did not, at the
instructions of the police, whose instructions were given the
previous day, go to school. The police had arrived at his home
between
7 o'clock and 8 o'clock in the morning. They came in large
numbers and in several motor vehicles. All those policemen had come
to assist Mthombeni to investigate the case. The police were of a
mixed vase.
5.
While he was in the house he was assaulted in the following manner.
One policeman slapped him in the face. In order to avoid
any injury
to his face he covered his face with his hands. The same policeman
started punching him. One of the policemen covered
his head with a
plastic bag and smothered him. He managed with his tongue to puncture
a hole in the plastic bag and that made it
possible for him to
breath.
6.
They asked him questions about the assassination of his uncle and
each time he response was met with further assault. He was
slammed
with a dictionary three times on his head.
7.
They took him to the dining room where the questioning continued. He
was slammed at the back of his head.
8.
Later he was put in a Kombi and taken to a neighbouring bush where
the assault endured. On his arrival in the bush he was removed
from
the Kombi and placed in a Jeep motor vehicle. In the Jeep motor
vehicle he and his aunt were instructed, firstly, to sit on
the floor
of the motor vehicle and, secondly, not to speak to each other. Later
they removed him from the Jeep and took him to
the BMW motor vehicle.
They asked him to tell the truth and who had killed his uncle. He
told them that he did not know. They took
him to the Kombi where they
put an electric belt around his waistline and his clothes. Here they
continued asking him questions
and he was electrocuted five times.
When they were satisfied, the belt was removed from him and he was
taken back to the Jeep motor
vehicle. As a consequence of the assault
upon him he sustained some injuries. These injuries have aptly been
captured in exhibit
"B". The photographs in exhibit "B"
were taken on 30 January 2009.
9.
As a consequence of the assault upon him the plaintiff sustained some
injuries. As already indicated somewhere above, the said
injuries
were aptly captured in Exhibit "B". The photographs were
taken on 30 January 2009. According to his particulars
of claim, the
plaintiff sustained the following injuries:
9.1
He was swollen;
9.2
Burns, caused through contact with electricity charged belt.
10.
Dr. Reinette du Plessis ("Dr. du Plessis") was called as
an expert witness to testify about her finding of a biopsy.
She
testified that her examination of a piece of human
skin that had
been submitted to her for medical analysis disclosed that the wound
or injury from which the said skin had been extracted
had been caused
by the application of electricity.
11.
The plaintiff called no witness but because the evidence of all the
three plaintiffs was tendered in one continuous swop, what
the other
plaintiffs told the court supported the current plaintiff.
12.
At the close of Wandile's case, the defendant, in defence, led the
evidence of two witnesses, one Mr. Mthombeni and a certain
Mr.
Aphane. Mr Mthombeni told the court in his testimony that he received
instructions from his commanding officer, after the assassination
of
Jimmy Mohlala, the plaintiff's uncle, to go and investigate the case.
On 5 January 2009, in the company of a colleague of his,
one Mr.
Mutubatse, he called at Wandile's home to go and speak to the people
who were present when the incident took place. By
reason of the fact
that there were many people at that particular house on that
particular day and at that particular time when
he arrived he was
unable to talk to the people, namely Cheazer Bonny Ndlazi, the
plaintiff in case no. 69480/09 and the current
plaintiff. So he took
them to the police station where he took down their statements. As
Tshepiso Michelle Mohlala, the plaintiff
in case no. 69478/09, had at
that stage been admitted at a local hospital after he had himself
been shot during the assassination
of Jimmy Mohlala, his father, he
arranged for Mr. Aphane to go and consult with him there and to
obtain his written statement,
which Mr. Aphane did.
13.
He could not remember if, on 29 January 2009, he was at the
plaintiff's home but remember vividly that he used to visit the
plaintiff's home 3-4 times a week in order to find out from the
plaintiff, his aunt and Tshepiso if they did not have any information
that could assist him to establish the identity of the killers. He
denied specifically that he arrived on any day in a number of
motor
vehicles and with many of his colleagues. He denied furthermore not
only that the plaintiff was assaulted but also that he
was present
when the assault took place. He in fact denied the whole events of 29
January 2009 as testified by the plaintiff and
his witness. Mr.
Aphane himself testified about the events of 5 January 2009.
14.
Convinced that the plaintiff has proved his case, Mr. Brand argued
that the court should grant judgment in the plaintiff's favour.
He
listed certain issues which according to him were common cause
between the parties. He submitted that:
14.1
It was common cause that the plaintiff had been assaulted and that
following such an assault he had suffered certain dire-bodily
hurts.
14.2
The photographs of the plaintiff's injuries were taken on 30 January
2009;
14.3
A doctor took the plaintiff's skin for biopsy;
14.4
The results of the biopsy clearly indicated an unequivocally that the
origin of the plaintiff's injuries is the application
of electricity
to the body of the plaintiff.
15.
He submitted, and, in my view quite correctly so, that the only issue
that the court was called upon to decide was the identity
of the
perpetrators. On the other hand, Mr. Mmusi submitted that the assault
on the plaintiff never took place; that the police
never arrived in a
group in many motor vehicles at the plaintiff's home and finally that
the police were never at the plaintiff's
home on 29 January 2009.
16.
Mr. Mthombeni, as he himself admitted, had been appointed as the
investigating officer of the case involving Jimmy Mohlala.
So in the
execution of his duties, he visited the plaintiff's family on times
without number. The plaintiff and his family came
to know him and he
came to know them. The plaintiff and his witnesses testified that
they knew him and that he knew them. Their
evidence was not disputed.
In the premises, there is no reasonable possibility that they could
have made any mistake about his
identity. I therefore find that his
identity had been positively established by the evidence.
17.
As for the date, with their level of education and with the number of
witnesses, it is highly unlikely that the plaintiff and
his witnesses
could have confused the date on which the incident took place with
another date. The plaintiff's aunt is a school
teacher. She is
mature. She can read and write. The plaintiff himself was studying to
be a paralegal or legal assistant. Tshepiso
himself was at the
university. It is on that basis unlikely that they had confused the
date on which the incident took place.
18.
Besides their testimony there is other evidence from which the date
of the incident could be established. Firstly, a day after
the events
which constituted the subject of this claim he went to see an
attorney who in turn arranged that the injuries that he
had sustained
be photographed. The frame of the photographs in Exhibit "B"
clearly showed the date 30 January 2009. This
was not disputed.The
plaintiff and his witnesses corroborated one another that the
photographs were taken on 30 January 2009. This
evidence could not be
contradicted.
19.
Secondly, the objective evidence of Dr. du Plessis, the specialist
who had performed a biopsy supported the evidence of the
plaintiff
and its witnesses that when a piece of skin of the plaintiff was
obtained for the test the injuries or wounds from which
the skin had
been obtained were not older than 48 hours. The Court must therefore
find that it is more probable that the plaintiff's
injuries were
inflicted on 29 January 2009 than on 5 January 2009.
20.
As I indicated earlier, Mr. Mmusi submitted at the commencement of
his argument that the defendant's case was that the assault
on the
plaintiff never took place. He made this submission notwithstanding
the evidence of the plaintiff that he had been assaulted;
and, of
crucial importance, not withstanding the existence of the injuries on
the plaintiff and furthermore notwithstanding the
objective evidence
of Dr. du Plessis. Apart from denying that the assault took place,
Mr. Mmusi never proffered any explanation
why the plaintiff would
come to court and mislead it, or why in his own submission the
assault did not take place. This court has
no valid reason to refuse
to rely on the evidence before it that the plaintiff was assaulted on
29 January 2009 by the members
of the police services in the presence
of Mr. Mthombeni who, while he was a police officer, condoned the
assault and failed to
protect the plaintiff or to stop the assault or
even to arrest the perpetrators.
21.
It is important, in my view, that this Court should take into account
the manner in which the assault on the plaintiff was executed;
the
nature of the injuries that the plaintiff sustained as a result of
the assault; the pain that he had to endure; the kind of
medical
treatment he received following the assault; whether he could have
done something about his situation and; the last impressions,
the
assault on him by the member of the police.
22.
The assault on the plaintiff was exacerbated by the fact that it was
carried out by members of the police services who have
been passed
with the duty conditionally to protect private citizens. Even then it
was not executed by one person but many. The
assault had been planned
by the police and it is for this reason that the police used shocking
devices in the bush. The plaintiff
was helpless. He was handcuffed
from behind and while in that position was shocked with an electric
belt. What else could he do
to protect himself?
23.
It needs to be mentioned that the assault upon the plaintiff took
place despite the fact that he was prepared to co-operate
with the
police. He did not refuse to answer their questions.
24.
The assault on him commenced in the house where he was slapped and
also hit with a book. He felt humiliated. He lost confidence
in the
South African Police Services. He even bemoaned the fact that he had
been assaulted by the people who had been tasked to
protect him. The
assault took place from 09h00 in the morning up to 16h00. The
plaintiff was, in that during that period deprived
of his liberty. He
was traumatised.
25.
There is, in my view, no grounds upon which I can impeach his
evidence. He made a very good witness. He answered all the questions
properly and without any hesitation. He was confident in answering
the questions. His credibility cannot be challenged. Mr. Mthombeni
was, in my view, not an impressive witness. His evidence is
unreliable. He conveniently, and in my view quite deliberately so,
forgot the events of 29 January 2009 but was amazingly able to
remember the events of 5 January 2009. He could not explain why
it
was not denied that he drove an Almeira motor vehicle on 29 January
2009 nor why it was never put to the witnesses that the
police came
in large numbers. Mr. Brand had to struggle to get him to answer
simple questions like for instance whether he also
took Jimmy
Mohlala's cellphone. He was evasive when he was asked whether or not
he recorded every event relating to his work in
his pocket book. He
was unable to furnish any valid reason why he could not remember the
events of 29 January 2009. His credibility
as a witness left much to
be desired and one can simply infer that he was not an honest
witness.
26.
In my view, there is no reason why the plaintiff's claim should not
succeed. Accordingly I make the following order:
1.
Judgment is granted against the first defendant in favour of the
plaintiff.
2.
The first defendant is hereby ordered to pay the plaintiff
R150,000.00 plus interest at 15.5% on the said amount of R150,000.00
reckoned from 3 August 2012 until date of payment.
3.
The first defendant is ordered to pay the plaintiff's costs of the
action which costs shall include:
3.1
The cost of two counsel; and
3.2
The qualifying fees of Dr. Reinette du Plessis.
P.M.
MABUSE
JUDGE
OF THE HIGH COURT
Appearances:
Plaintiff's
Attorneys: Frey & Slabber Attorneys
Plaintiff's
Counsel: Adv. CFJ Brand
Adv.
I Kruger
Defendant's
Attorneys: State Attorney
Defendant's
Counsel: Adv. LA Mmusi
Date
Heard: 30 July 2012 - 1 August 2012
Date
of Judgment:3 August 2012