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2012
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[2012] ZAGPPHC 147
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Ndlazi v Minister of Safety and Security (69480/09) [2012] ZAGPPHC 147 (3 August 2012)
NOT
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT,
PRETORIA
(REPUBLIC OF SOUTH AFRICA)
CASE
NUMBER: 69480/09
DATE:
3 August 2012
CHEAZER
BONNY
NDLAZI
..........................................................................
PLAINTIFF
V
MINISTER
OF SAFETY AND
SECURITY
…...............................................
DEFENDANT
JUDGMENT
MABUSE
J:
1.
Three matters were brought to me to be heard simultaneously. These
matters were so heard because they arose out of the same set
of
facts. In all the three matters, the first defendant is the Minister
of Safety and Security and the second defendant is a member
of the
South African Police Services. The first matter that this court heard
was matter number 69480/09 in which the plaintiff
is Cheazer Bonny
Ndlazi. This judgment therefore relates to matter no. 69480/09. I
will continue in this judgment to refer to the
said Cheazer Bonny
Ndlazi as the plaintiff. By the summons dated 10 November 2009 and
issued by the Registrar of this court on
11 November 2009, the
plaintiff claims from the defendant payment of the sum of R250 000.00
and certain ancillary relief, for arrest,
detention and assault which
involved torture.
2.
The provenance of the plaintiff's cause of action is an incident that
took place on 29 January 2009 when between 09h00 and 09h30
she was
taken from her house NO. 3432, Kanyamazane, in the Province of
Mpumalanga to a nearby bush where she was held captive against
her
will, accused of having killed her husband, the late Jimmy Mohlala,
in this lifetime the speaker of the Mpumulanga Provincial
Legislature, and assaulted in various methods by the police who at
the time were acting within their course and scope of employment
with
the defendant.
3.
The whole incident took place in the following manner. On 4 January
2009, she and the plaintiff were at home when her husband
was
assassinated by unidentified gunmen. In their investigations of the
murder, the police, in particular one Mr.Mthombeni, came
to her on 5
January 2009 looking for information that would have assisted him to
identify the killers. She was asked the identity
of the killers and
she told the police that she did not know them. The reason she gave
to the police was that at the time her husband
was shot she was in
the upper rooms of their double-storeyed house and could therefore
not have seen what happened to the deceased
who was assassinated on
the ground level of the house.
4.
On 28 January 2009 she received a call from the said Mr.Mthombeni who
requested her not to go to work the following day as the
police
wanted to ask her questions about the assassination of her husband.
She was also asked to make sure that the other school-going
children,
with whom she was staying, did not go to school. Seemingly the police
wanted to ask the children questions too.
5.
The following morning, and as requested by the police, she and the
other two plaintiffs did not go to school. At that stage one
the
children Wandile Promise Mohlala (" Wandile"), the
plaintiff in case no. 69479/09, was studying to be a paralegal
or
legal assistant and depended entirely on the said deceased for
financial support.Tshepiso Michelle Mohlala ("Tshepiso"),
the other of the school going children and the plaintiff in case no.
69478/2009, was a student at Tshwane University of Technology.
6.
On 29 January 2009 in the morning the said Mr. Mthombeni arrived in a
number of motor vehicles at the plaintiff's house around
09h00 to
09h30 with a contingent of more or less twelve members of the police
services. On their arrival the police found her in
the company of the
other plaintiffs and other small children. The police instructed her
to take the small children to the upper
level of the house and she
obliged. Having made sure that the small children were safely
ensconced in the safety of the upper level
of her house, she returned
downstairs. Upon her return downstairs she was the police called into
the house garage where she was
asked questions about the people who
killed her husband. In addition, she was shown a photograph in which
her son, Tshepiso, was
pictured with plentiful of money in the form
of notes and was asked if she knew anything about it.
7.
Later the police ordered her and Wandile into a Kombi and told them
that they were taking them to a police station in Kanyamazane.
They
drove away from their house but instead the police drove past
Kanyamazane Police Station and took them to a bush where they
assaulted her as follows. They:
7.1
covered her wrists each with a piece of cloth and handcuffed her
hands behind her back;
7.2
covered her whole head with a plastic bag and thereby smothered her;
7.3
put an electric belt around her waistline and repeatedly shocked her
with a handheld remote controlled unit;
7.4
slapped her in the face several times; and,
7.5
made her to sit on the running board of the Kombi and, whilst she was
sitting there, one of the policeman deliberately sat on
her lap in
order to restrain her from shifting about.
8.
The police assaulted her in that manner while they sought from her
information about how and by whom her husband was killed.
Each time
she told them that she did not
know, the remote control device
would be activated and the electric belt would send electric waves
through her body. As a result
of the torture that she was going
through she admitted that she had killed her husband by hiring men
whom she paid R10 000.00 in
order to eliminate her husband. She asked
the police to take her to the police station.
9.
Ultimately the police removed her handcuffs and there after Mr.
Mthombeni came with some ice cubes and tried to treat the wounds
or
injuries she had sustained as a result of the handcuffs. Despite the
fact that her wrists had been handcuffed with some cloths,
she still
sustained some bruises on both of them.
10.
When she told Mr. Mthombeni that she would go and lay a charge of
assault against the police who tortured her Mr. Mthombeni
discouraged
her by telling her that if she did that the police would set her
house alight and kill her children. She was not discouraged
though
as, eventually, she laid charges against the police arising from her
torture on 29 January 2009. Ever since then she has
not heard
anything from the police about the matter. The last time she received
a report from someone was when she was told that
the matter had been
referred to the Independent Complaints Directorate.
11.
As a consequence of the said assault upon her by the police, she
sustained the following injuries:
11.1
swelling on her neck;
11.2
bleeding of her calf;
11.3
bleeding of her feet;
11.4
lacerations of her back and body necrosis of her epidermis;
11.5
bruised wrists.
12.
Over and above the injuries she sustained she was emotional, had been
shocked and traumatised and had been humiliated and denigrated.
13.
The injuries that the plaintiff sustained as a consequence of the
said assault have been aptly captured in 12 colour photographs
that
have been handed in as Exhibit "A". For record purposes
photographs A1 to A2 show the bruises on her wrists. These
bruises
were caused by the handcuffs. Photographs A3 to A4 show the blisters,
two in photograph A3 and four in photograph A4. Photographs
A5, A6
and A8 show bruises on the legs, and in particular photograph A6,
shows bruises on the back of her thigh and other bruises
on her leg
just above her calf. Photograph A7 shows bruises, photographs A9 and
A10 show bruises on her right foot. Photographs
A11 shows bruises on
both her legs just underneath her knees and photograph A12 shows also
bruises on her left leg, one in the
front and the other on the back
of her leg. These photographs were admitted as evidence.
14.
It is for these reasons that the plaintiff claims damages against
the defendant. She claims that she was assaulted, deprived
of her
liberty and humiliated by the members of the South African Police
Force who at the time were acting in their course and
scope of
employment with the defendant.
15.
In their subsequent testimony in respect of their own claims, Wandile
and Tshepiso confirmed the evidence of the plaintiff in
particular
that on 29 January 2009 they did not go to school as they have been
told that the police wanted to speak to them about
the assassination
of Jimmy Mohlala; that on the said date the police, among them Mr
Mthombeni, arrived at her house in many motor
vehicles, that they
were taken to the bush and that they came back after 3 o'clock in the
afternoon.
16.
In respect of all three of them, one Dr. Reinette Du Plessis ("Dr.
Du Plessis") tendered medical evidence about the
injuries that
she had sustained. The said doctor, testifying in a layman's
language, told the court that the injuries from which
the plaintiff's
skin sample had been obtained and the injuries of the plaintiff as
depicted in Exhibit "A" were consistent
with electrocution.
Her report was handed in as Exhibit "D".
17.
On the other hand Mr. Mthombeni who gave evidence on behalf of the
defendant testified that he could not admit or deny that
on 29
January 2009 he was at the plaintiff's house. He denied however that
even if he were there he did not do so; with many policemen
in many
motor vehicles as testified by the plaintiff, her witnesses. He
testified that he was with one Motubatse. He denied that
he was
present when and where the plaintiff was assaulted and disputed that
they were assaulted. Furthermore he denied that the
plaintiff,
together with her son and nephew, was taken to any bush.
18.
Mr Brand argued that the plaintiff established that she was abducted
and viciously assaulted by the members of the South African
Police
Services in the presence of an officer, namely Mr. Mthombeni, and
that her claim should therefore succeed. He submitted
that it was
common cause that the plaintiff was assaulted. That she was assaulted
is clear, firstly, from her evidence, secondly
from the photographs
of her injuries and, thirdly, from the evidence of Dr. du Plessis.
19.
I think it is only apposite that I remark about certain aspects of
this matter. In a letter of demand dated 15 July 2009 that
the
plaintiff's attorneys sent to the National
Commissioner of the
South African Police Services, it was stated in the third paragraph
thereof that:
"On
or about the 29th of January 2009 Inspector Mthombeni and several
other members of the South African Police Service unlawfully
arrested, alternativelyy kidnapped our client and at Ifrom his home
at Kanyamazane, Mphumalanga."
It
is quite evident from the said paragraph that the five aspects have
been identified. These aspects are firstly, the event that
took
place, secondly, the date on which the relevant event took place; the
identity of the police officer who was present when
the event took
place; the people who committed that event; and lastly the place
where that event took place. For inexplicable reasons,
when the
summons was drawn, the date of the event was reflected as 22 January
2009. It was pleaded initially that the event that
had, according to
the aforementioned letter taken place on 29 January 2009, had taken
place on 22 January 2009 according to the
summons. This anomaly was
however corrected before the commencement of the trial. An
application to amend the date of 22 January
2009 by replacing it with
29 January 2009 was allowed without any objection in order to set the
record straight.
20.
Stranger than fiction, when the defendant pleaded to the plaintiff's
summons, in particular paragraph 4 thereof, apart from
denying each
and every allegation specifically, he initially pleaded that:
"4.2.2
The plaintiff was taken in for questioning and to make a statement at
the Police Station on 29 January 2009."
Through
a successful application to amend, the date 29 January 2009 was
subsequently substituted with 5 January 2009. During
cross-examination
of Mr. Mthombeni, Mr Brand took that issue up with
Mr. Mthombeni. He asked him where the date of 29 January 2009 came
from initially
as the plaintiff had not, in his initial particulars
of claim, referred to it. Quite clearly that put Mr. Mthombeni in a
difficult
situation as he had not drawn the plea. He was, for that
reason, unable to furnish any plausible reasons why, in the initial
plea,
the defendant had referred to 29 January 2009.
21.
During argument, Mr. Mmusi furnished a somewhat feeble and in my view
a" Daniel in
a Lion's Den" explanation that the
defendant had in the said paragraph 4.2.2 of his plea referred
initially to the said date
of 29 January 2009 because that is the
date which had been referred to in the plaintiff's letter of demand.
But Mr. Mmusi is a
trained counsel. It is accepted that he has, among
others, acquainted himself with the Uniform Rules of Court, in
particular Rule
22(2), which provides that:
"The
defendant shall in his plea either admit or deny or confess and avoid
all the material facts alleged in the combined summons
or declaration
or state which of the said facts are not admitted and to what extent,
and shall clearly and concisely state all
material facts upon which
he relies."
22.
Accordingly Mr. Mmusi should have known when he drew up the
defendant's plea that a defendant pleads to the allegations contained
in a combined summons or declaration and not to allegations contained
in a letter. His argument, in my view, carries no weight
and, if
anything, in my view, though the plea was amended without any hassle
from the plaintiff, it shows clearly that the defendant
knew about
the date of 29 January 2009 and that the said date was the core of
the plaintiff's case. The plaintiff tried to adjust
his case as the
matter progressed.
23.
The plaintiff and her witnesses all testified that the incidents of
which they all complained of in their respective individual
claims
and in support of one another took place on 29 January 2009. Lest it
be forgotten, the plaintiff in this matter is a trained
educator.
Wandile was studying to be a paralegal or legal assistant and
Tshepiso was also studying at Tshwane University of Technology.
In my
view, all these people are educated and any thought or imagination
that they might have forgotten the date on which the event
took place
would be a remote possibility and devoid of any merit. It is highly
unlikely that they could have been bamboozled by
the precise date on
which the incident took place.
24.
One would have to make a finding that they conspired to mislead the
court, and there is no iota of evidence to that effect,
if one does
not accept that they relied on their memories and that their memories
are intact. The same cannot be said about Mr.
Mthombeni who could not
even remember whether or not he was at the plaintiff's house or
whether or not he was with the plaintiff
and her witnesses on 29
January 2009 but, who to my surprise, was able to remember what
happened on 5 January 2009. I find it strange
that he was
conveniently unable to remember some events but could not remember
others while he did not suffer from any loss of
memory. His evidence
on this aspect is not reliable.
25.
There is evidence aliunde that the incidents in this matter took
place on 29 January 2009. The plaintiff testified that she
went to
see her attorney the following day and that the attorney started
making some arrangements. The following day of the events
someone
took photographs of her injuries. With modern technology, the date on
which such photographs were taken was captured. The
date was 30
January 2009. The photographs were handed in without any objection.
Argument by Mr. Mmusi that the relevant photographs
did not have any
faces lacks merit. The plaintiff was able to identify not only the
injuries on the photographs as the injuries
that she had sustained on
29 January 2009 at the hands of the police but also her body parts.
There is no other plausible evidence.
26.
The doctor's evidence also assisted to establish not only the age but
also the genesis of the injuries that she saw on exhibit
"A".
She testified that the injuries were not older than 48 hours and that
they were consistent with electrocution. In
the premises I must
accept that the injuries on the plaintiff were fairly recent when the
photographs, exhibit "A" that
is, were taken and when a
biopsy was taken, for the purposes of diagnosis by Dr. Du Plessis,
from each of the plaintiffs.
27.
It is highly unlikely that the plaintiff and her witnesses could
have made a mistake with regard to the identity of Mr. Mthombeni.
He
knew the plaintiff and the plaintiff and her witnesses all knew him.
He also admitted that they knew him and that he used to
visit them
three to four times a week. Under these circumstances there is no
reasonable possibility that they mistook him for someone.
Accordingly
I find that Mr. Mthombeni was among the policemen who on 29 January
2009 came to the plaintiff's house, interrogated
her, drove her in
the Kombi from her house to a bush where the interrogation continued
and where she was furthermore assaulted
as described by the plaintiff
and her witnesses in their evidence.
28.
I find nothing wrong with the evidence of the plaintiff and the
manner in which she answered questions that were put to her.
She was
consistent at all times and never contradicted herself. She answered
all the questions satisfactorily and where she did
not remember she
would also tell the court so. I did not find any traces that the
evidence that she gave resulted from any conspiracy
between her and
her witnesses.
29.
Neither the plaintiff nor her witnesses testified that Mr. Mthombeni
took part in the assault. However there is evidence that
Mr.
Mthombeni was present when the plaintiff was assaulted; that he
witnessed the assault and that he did nothing to prevent those
who
assaulted her from doing so. He was also present when the plaintiff
was removed from her house in a Kombi and taken to the
bush. There
exists a duty imposed by law on any member of the South African
Police Service to protect the community or a members
of the community
from such activities as abduction and assault. Any failure by a
policeman to protect any member of the community
from such actions
entitles such a member of the community to sue for damages. See
Minister Van Polisie v. Ewels 1975(3) SA 590
A. I wish to quote
copiously from its head notes:
"Our
law has developed to the stage wherein an omission is regarded as
unlawful conduct when the circumstances of the case
are of such a
nature that the omission not only incites moral indignation but also
that the legal convictions of the community
demand that permission
ought to be regarded as unlawful and that the damage suffered ought
to made good by the person who neglected
to do a positive act. In
order to determine whether there is unlawfulness the question, in a
given case of omission, is thus not
where there was the usual
negligence of the bonus paterfamilias but whether, regard being had
to all the facts, there was a duty
in law to act reasonably."
30.
The plaintiff claimed general damages. No evidence was tendered in
support of her claim. Instead Mr. Brand relied on past awards.
He
referred me instead to the
authority of the Minister of Safety and
Security vs Seymour 2006(6) SA 320 SCA.
With regard to the award
of damages, it is now settled law in our country that such an award
is left for the discretion of the court.
The principle regarding an
award of course was put as follows in Road Accident Fund vs Marumba
2003(5) SA 164 SCA:
"It
is settled low that the trial Judge has a large discretion to award
what he in the circumstances considers to be a fair
and adequate
compensation to the injured party for these sequelae of his injuries.
Further, this Court will not interfere unless
there is a "substantial
variation" or as it is some times called a "striking
disparity" desperatate" between
what the trial court awards
and what this Court considers ought to have been awarded."
On
page 325 Nugent JA pointed out in paragraph [17]:
"That
the assessment of awards of general damages with reference to awards
made in previous cases is fraught with difficulty.
The facts of a
particular case need to be looked at as a whole and few cases are
directly comparable. They are a useful guide to
what other courts
have considered to be appropriate but they have no higher value than
that."
Having
made the aforementioned comments, the Judge proceeded in paragraph 19
of the said authority to refer to certain awards made
by other
courts.
31.
In this matter, the plaintiff was an educator. She had recently lost
her husband under mysterious circumstances. Her husband
had been
assassinated at the place he certainly regarded as his last bastion.
She was mourning the death of her dear husband. For
no apparent
reason whatsoever, the police smelled a rat that she was involved in
the killing of her husband. In this country, and
elsewhere in the
world, it is not unheard of for a woman to kill her husband. It is
not so much the suspicion with which the police
regarded her as it
was the repugnant treatment that was meted out to her that is of
great concern. The plaintiff was tricked and
told that she would be
taken to a police station. In stead she was taken to a bush where she
was kept captive and helpless for
a protracted period. Her whole
ordeal commenced with the arrival of the police at 09h00 or 09h30 and
endured until 16h00 of the
same day.
32.
While in the bush, she was handcuffed from behind and shocked with
an electric belt by the police, the very same people who
should have
protected her. For the duration of the ordeal, she was deprived of
her much cherished liberty by the people from whom
she was entitled
to seek protection of the law. She was helpless. This happened
despite the fact that she did not refuse to answer
their questions.
Antiquated Gestapo methods by the police to extract information from
people in these civilized times cannot be
tolerated.
33.
As a consequence of the handcuffs, and despite furthermore the fact
that an attempt was made by the police, to protect her
wrists by
wrapping them with pieces of cloth before using handcuffs, she
sustained injuries. The injuries on her wrist, in my view,
only
manifest her struggles to escape from the shocks. She sustained
serious injuries also as a result of the shocks. She cried.
She was
humiliated. These are some of the factors that, in my view, one
should take into account in determining an award of damages.
34.
She had no access to any other person who could have assisted her
even more so at the place where she was being tortured. She
suffered
degradation. There is no doubt, in my view, that the experience
brought with it a certain measure of trauma apart from
being
distressed.
35.
I am mindful of the authorities that Nugent JA referred to in
paragraph 19 of the said authority of Minister of Safety and Security
vs Seymour. In my view it is not necessary for me to quote them in
this judgment save to point out that I am mindful of them and
of the
reasons furnished by the court in arriving at the award of R90 000.00
in favour of the respondent.
36.
Although the plaintiff did not particularise her damages, but opted
to claim a globular figure of R250,000.00, Mr Brand indicated,
in his
submissions in respect of quantum, that in respect of deprivation of
liberty, a sum of R100,000.00 to R120,000.00 would
not be
inappropriate and that in respect of assault and degradation with the
resultant injuries any award between R100,000.00 and
R150,000.00
would be sufficient compensation.
37.
In Seymour's case, the award of R90,000.00 was only for deprivation
of liberty for a period of five days. It was not accompanied
by any
torture or assault. He sustained no injuries. He was never treated
after his arrest in the same manner as the current plaintiff.
Accordingly an award of R100.000.00, in my view, would be appropriate
compensation. Enough has been said about the nature of the
injuries
sustained by the plaintiff. In my view, the assault was even worse
than the deprivation of liberty. Accordingly I would
award a sum of
R120,000.00 in respect of the assault and the consequences thereof.
38.
I am satisfied that the plaintiff has made out a good case.
Accordingly I make the following order against the first defendant.
I
do so on the basis that at the time the incidents complaint of were
committed, the police or members of the police services were
acting,
and it was also so pleaded by the plaintiff, in their course and
scope of employment with the defendant.
1.
Judgment is granted in favour of the plaintiff against the first
defendant.
2.
The first defendant is hereby ordered to pay the plaintiff the sum of
R220,000.00 plus interest at 15.5% on the said amount reckoned
from
the 3rd of August 2012 to 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 costs of two counsel; and
3.2
the qualifying fees of Dr. Reinette Du Plessis.
PM.
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