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2011
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[2011] ZAKZDHC 45
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Okudo v Minister of Safety and Security (7567/2007) [2011] ZAKZDHC 45 (3 October 2011)
IN THE
KWAZULU NATAL HIGH COURT, DURBAN
REPUBLIC
OF SOUTH AFRICA
CASE: 7567/2007
In the
matter between:
UGOCHUKUWU
OKUDO
PLAINTIFF
and
THE MINISTER OF SAFETY AND SECURITY
DEFENDANT
_____________________________________________________________________
JUDGMENT
_____________________________________________________________________
MOKGOHLOA J
[1]
The plaintiff, Ugochukuwu Okudo, instituted action against the
defendant, The Minister
of Safety and Security, for damages suffered
by him when he was arrested, assaulted, and detained by the police,
who acted within
the cause and scope of their employment with the
defendant. The incident occurred on 30 July 2006 at Point
Area in
Durban. As a direct consequence of the police
conduct, the plaintiff was prosecuted for dealing in drugs and these
charges were subsequently withdrawn against him.
[2]
The plaintiff testified that on Sunday, 30 July 2006, at around 11h15
he was walking
along Gillespie Street in Point area.
Whilst walking as aforesaid, he heard somebody whistle.
He turned
around and saw one Jabulani Ngcobo (‘Ngcobo’)
who signalled to the plaintiff to stop. The plaintiff
stopped
and Ngcobo approached him. The plaintiff
testified that he knows Ngcobo as a police officer attached to the
Dog Unit
in Durban. Ngcobo was wearing a full police
uniform.
[3]
Ngcobo approached the plaintiff and pushed him against the wall of a
building called ER
Medical Centre. He started assaulting
the plaintiff with open hands. At that time, a police
vehicle came
and the driver of that police vehicle alighted. The
driver was known to the plaintiff as Tyson, who later during the
trial introduced himself as Kelvin Shanmugan. The driver
alighted from the vehicle and walked towards Ngcobo and the
plaintiff. Ngcobo told the driver that the plaintiff who
is an Nigerian has to be taught a lesson. Shanmugan
and
Ngcobo dragged the plaintiff and put him into the police vehicle.
The plaintiff was made to sit on the front seat
between Shanmugan and
Ngcobo. Ngcobo continued to use vulgar words at the
plaintiff and continued to assault him whilst
they were still in the
police vehicle. They drove to CR Swart Square, where the
offices of the dog unit are situated.
When they arrived
at the CR Swart Square, Ngcobo and Shanmugan alighted from the
vehicle and ordered the plaintiff to alight.
As soon as
the plaintiff alighted from the vehicle; Ngcobo handcuffed him.
They then pushed the plaintiff into their
office. Once
inside the office, Ngcobo and Shanmugan took out a baseball bat and a
wooden stick that looked like a
leg of a table from the locker and
started hitting the plaintiff using those weapons all over his
body. The plaintiff
tried to defend himself but could not
as his hands were handcuffed. They continued to assault
him until the plaintiff
managed to run out of the office hoping that
he would attract someone’s attention and get help.
[4]
Outside the office the plaintiff saw another police vehicle and asked
the driver of
that vehicle to assist him. Unfortunately
the driver of that vehicle alighted from the vehicle and he started
to kick
the plaintiff who was on his knees pleading for help.
He kicked him on his shoulders and stamped him to the ground.
The other person who was in the passenger seat of the other police
vehicle, also alighted from the vehicle. They pushed
the
plaintiff down and let the dogs out of the vehicle and instructed the
dogs to attack him. At that stage
the dogs
approached him these two police officers pulled these dogs back with
a leash. The plaintiff testified that
he was scared.
[5]
Ngcobo and Shanmugan came out of the office and took the plaintiff
back into the office
and asked him if he was ready for a second
round. They continued to assault him and the other police
officers from
outside came inside the office and watched as Ngcobo
and Shanmugan were assaulting the plaintiff. One of the
police
officers took out the teargas or pepper spray and sprayed it
in the plaintiff’s eyes. Ngcobo took out his gun
and assaulted the plaintiff further with the butt of the gun.
The plaintiff was further ordered to take off his trousers
and his
underwear and to turn around, from Ngcobo and Shanmugan.
They made the plaintiff to bend down and took pictures
of his butt
and his penis. After the pictures were taken using the
cellphone the police officers started watching those
photos and
laughed. Ngcobo told the plaintiff that he needed to make
arrangements to pay them an amount of R5000.00
otherwise they would
open a charge of possession of drugs against him. The
plaintiff told them that he did not have
money. Ngcobo
brought a small silver briefcase and placed it on top of the table.
He opened the briefcase
and took out a plastic and there was some
substance in that plastic. Ngcobo took out a pen and
paper and thereafter
he gave the plaintiff that paper, and the
plaintiff realised from that paper that he was being charged with
possession drugs.
Ngcobo had actually searched the
plaintiff and had removed some of the items, which included money,
cellphone and his house keys
[6]
The plaintiff was further put into the dog unit vehicle and he was
transported to
the Point Police Station. At the police
station the plaintiff requested that Ngcobo hand him back his items
and Ngcobo
threw the plaintiff’s cellphone at him.
Another police officer took the plaintiff into the holding cells but
the plaintiff pleaded and told the police officer that he needed to
go and consult a doctor because he was feeling pains all over
his
body and that his arm
was injured. The police
officer did not want to listen to the plaintiff but he pulled him and
put him into the police
holding cells. The plaintiff
screamed and pleaded to be taken to the doctor. After
some time another police
officer came and that was when the plaintiff
was taken to Addington Hospital. He was detained at
Addington Hospital
for a period of eight days and he was kept under
police guard. On the day of his discharge from Addington
Hospital
he was kept at the Point police station over night and was
taken to the Magistrate Court the following day where he was released
on bail. On his second appearance at court the charges
against him were withdrawn.
[7]
The plaintiff stated that as a result of the charges being preferred
against him and
his subsequence appearance at the magistrate court,
he engaged services of a lawyer and paid an amount of R1000.00 for
the legal
fees.
[8]
Doctor R Moodley who treated the plaintiff at Addington Hospital also
testified.
He confirmed that on the 30 July 2006 at 15h20
he consulted with plaintiff and completed a J88 medical form.
The J88 was
handed in as an Exhibit. Dr Moodley recorded that the
plaintiff informed him that he was assaulted by the police using the
baseball
bat and further complained of pains and swelling on various
parts of his body including the left elbow, the left wrist, left
thigh
and right jaw.
[9]
Doctor JR Domingo an orthopaedic surgeon testified that he consulted
with the plaintiff
and prepared a medico legal report in respect of
the injuries that the plaintiff suffered. The medico
legal report
was handed in as an exhibit. In his report
Dr Domingo recorded that he examined the plaintiff on 15 November
2007 and
completed his report 26 November 2007. The
summary of his report is that the plaintiff sustained a fracture on
left
elbow and left forearm as well as multiple tissue injuries.
The forearm fracture was healed without any complications
but the
left elbow fracture has resulted in permanent loss of some
movement. The loss of some movement according to
Dr
Domingo will gradually increase as the plaintiff developed post
traumatic arthritis of the elbow. Dr Domingo also testified
that he
relied on the medical report that he received from Addington
Hospital.
Defendant’s case
[10]
Kelvin Shanmugan testified on behalf of the defendant. He is a
warrant officer with
the South African Police Service attached to the
dog unit. He confirmed that on the 30 July 2006 he was in a company
of Ngcobo
and was patrolling within the Point area. He also confirmed
that they were driving a police vehicle which is a sedan and
that they had two kennels with at the back. He stated that
while patrolling they noticed a black male who was walking along
the
Gillespie Road, and that this black male, upon noticing the police
vehicle turned his path of direction and started walking
in the
opposite direction. This black male was to the plaintiff
in this matter. Shanmugan confirmed that
he was the
driver of the police vehicle. According to him, he immediately
pulled the vehicle off the road and Ngcobo alighted
and they
approached the plaintiff. They introduced themselves to
the plaintiff as police officers. They
were clad in their
full police uniform and asked the plaintiff to put his hands up.
Ngcobo searched the plaintiff who
had a newsapaper in his hand.
Inside the newspaper was a white plastic wrap containing cocaine
powder.
They arrested the plaintiff and informed him of
his constitutional rights. They handcuffed him and put him in the
police vehicle
and drove with him to the CR Swart building where
their dog unit is situated. According to Shanmugan the
reason they
proceeded with the plaintiff to their offices was to
compile their administrative documents relating to this case before
they could
detain the plaintiff at the Point Police Station.
After completing
the necessary documentation, Shanmugan
and Ngcobo took the plaintiff to the police station where the
plaintiff was detained.
According to Shanmugan the
cocaine that was found in possession of the plaintiff was left at the
police station and it was recorded
in the SAP13 and sealed in the
forensic bag.
[11]
Shanmugan denied that he or Ngcobo ever assaulted the plaintiff in
any way. He further
denied that the plaintiff was ever
assaulted in his presence. He stated when he left the
plaintiff at the Point Police
Station the plaintiff had no
injuries. Shanmugan further denied having taken any
pictures of the plaintiff at the CR
Swart building. He
further denied that Ngcobo demanded an amount of R5000.00 from the
plaintiff. Shanmugan
denied that they kept a baseball bat
or wooden stick in their unit.
[12] It
is not in dispute that the plaintiff was arrested, detained and that
charges against him were
subsequently withdrawn. It is
further not in dispute that the plaintiff suffered injuries certain
whilst in the police
custody and that this led him to be taken to
Addington Hospital where he was detained for eight days and also kept
under police
guard. What is in dispute is , who assaulted
the plaintiff; whether Ngcobo and Shanmugan acted unlawfully in
arresting
and detaining the plaintiff; and whether Ngcobo and
Shanmugan acted wrongfully and malicious in setting the law in motion
by laying
a charges of possession of drugs against the plaintiff.
Wrongful Arrest and Detention
[13] In terms
of
section 40(1)(b)
of the
Criminal Procedure Act 51 of 1977
(the Act):
“
(1)
A peace officer may without warrant arrest any person-…..
(b)
whom he reasonably suspects of having committed an offence referred
to in Schedule 1, other than the offence of escaping from
lawful
custody”
[14] In
Duncan v Minister of Law and Order
1986 (2) SA 805
(A),
Van
Heerden JA
stated that in order to enjoy the protection of
section 40(1)(b) of the Act, an arrestor must establish the following
four requirements:
(i) The
arrestor must be a peace officer;
(ii) He
must entertain a suspicion;
(iii) It
must be a suspicion that the arrested committed an offence referred
to in Schedule 1
of the Act;
(iv) The
suspicion must rest on reasonable grounds (at 818 G-H).
[15] The
requirement that the suspicion must rest on reasonable grounds, is
objectively justifiable.
The test to be applied is not
whether a police officer believes that he has reason to suspect, but
whether, on an objective approach,
he in fact has reasonable grounds
for his suspicion. (
Duncan v Minister of Law and Order (supra) at
814 D-E
).
[16]
In
casu,
Shanmugan’s testimony is that he noticed the
plaintiff walking along Gilllespie Road. The plaintiff
changed his
direction and walked away from the police.
According to Shanmugan, this made him form a suspicion which made him
to
stop the plaintiff and search him. The question
therefore is can a reasonable police officer with 12 years experience
arrest a person without a warrant only because that person changed
his path of direction upon noticing the police?
I do not think that, this is
reasonable suspicion. Furthermore Shanmugan contradicted
himself in his testimony regarding
who found the alleged cocaine on
the plaintiff. He first stated that it was Ngcobo but
later changed stating that it
was him. I find this to be
a material contradiction which makes his evidence to be unreliable
and untrustworthy. Therefore
I find that the defendant
failed to discharge the onus of justifying the lawfulness of the
arrest.
Assault
[17] I
now turn to with the issue of assault. The plaintiff gave
a detailed testimony as to
where and how he was assaulted by Ngcobo
and Shanmugan. Shanmugan on the other hand denied that he
and Ngcobo assaulted
the plaintiff at all. According to
him, the plaintiff was handed in at the Point Police Station free of
any injuries.
[18]
These two versions are mutually destructive in the sense that the
acceptance of the one must necessarily
lead to the rejection of the
other. In deciding which version to accept and which one
to reject,
Eksteen AJP
(as he then was) stated that the
following in
National Employers’ General Insurance v Jagers
1984 (4) SA 437
(E)
at
440 E – G:
“…
where
there are two mutually destructive stories, (the plaintiff) can only
succeed if he satisfied the Court on a preponderance
of probabilities
that his version is true and accurate and therefore acceptable, and
that the other version advanced by the defendant
is therefore false
or mistaken and falls to be rejected. In deciding whether that
evidence is true or not the Court will weigh
up and test the
plaintiff’s allegations against the general probabilities. The
estimate of the credibility of a witness will
therefore be
inextricably bound up with a consideration of the probabilities of
the case and, if the balance of probabilities favours
the plaintiff,
then the Court will accept his version as being probably true. If
however the probabilities are evenly balanced
in the sense that they
do not favour the plaintiff’s case any more they do the
defendant’s, the plaintiff can only
succeed if
the
Court nevertheless believes him and is satisfied that his evidence is
true and that the defendant’s version is false.”
[19]
Nieber J
went further in
Stellenbosch Farmers’ Winery
Group Ltd and Another v Martel et CIE and Others
2003 (1) SA 11
(SCA)
at 14J
and stated:
“
To
come to a conclusion on the disputed issues a court must make
findings on (a) the credibility of various factual witnesses,
(b) their reliability; and (c) the
probabilities.”
The learned judge stated further at
p15 D that:
“
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.”
[20] The
burden of proof is always on the plaintiff to prove his case on a
balance of probabilities.
In evaluating the plaintiff’s
evidence. I find him to be credible. His evidence was
straightforward. He testified in detailed
terms how he was arrested,
assaulted, detained and later taken to the Addington hospital. His
injuries recorded in the J88 medical
form completed by Dr R Moodley
are consistent with his evidence relating to the assault. The
evidence of Shanmugan on the other
hand is riddled with
contradictions. He testified that it was Ngcobo who found drugs on
the plaintiff and later changed and stated
that it was him who found
those drugs. His explanation of taking the plaintiff to CR Swart
building before taking him to the police
station is unconvincing and
farfetched. Instead I am satisfied that the reason for taking the
plaintiff to CR Swart building was
to assault him as they did.
Damages
[21] It
is not in dispute that the plaintiff was arrested and detained in
hospital under police guard
for a period of eight (8) days and a
further day in the police cells. It is further not in dispute that
the plaintiff appeared
in court and was granted bail and charges
against were subsequently withdrawn. Furthermore, it is
not in dispute the
plaintiff suffered injuries as recorded in the
medico legal report compiled by Dr Domingo. However the defendant did
not argue
what would constitute fair and reasonable compensation for
the plaintiff. Counsel for the plaintiff on the other
hand
referred me to some decided cases. I found the following
comparable cases to be more illuminating and helpful in my assessment
of plaintiff’s damages.
[22.1]
Ramakulukusha v
Commander, Venda National Force
1989 (2) SA 813
. The plaintiff
in this matter suffered painful lungs and sinuses, bruises on most
parts of the body, right shoulder dislocated
and wrists and ankles
were swollen. He was arrested and detained for 13 days. He was
prosecuted and acquitted at the end of the
state’s case. The
court awarded him R100 000.00 (in 2011 terms) for wrongful arrest and
detention; R100 000.00 (in 2011 terms)
for assault; and R30 000.00
(Iin1987 terms) for malicious prosecution.
[22.2] In
Bentley and
Another v McPherson
1999 (3) SA 854
the plaintiff was wrongfully
arrested and detained for approximately 9 hours. The appeal court
confirmed an award of R15 000.00.
[23] The
courts have repeatedly stated that the exercise of assessing and
awarding damages for bodily
injuries is less exact and
in arbitio
iudicis
. See
Passenger Transport v Franzen
reported
in
Corbett & Honey Vol II at 426
. As
Watermeyer JA
(as he then was) aptly put it in
Sandler v Wholesale Coal
Suppliers Ltd 1941 AD at 199:
“
It
must be recognised that though the law attempts to repair the wrong
done to a sufferer who has received personal injuries in
an accident
by compensating him with 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 certainty.
The amount to be awarded as
compensation can only be determined by the broadest general
considerations and the figure arrived at
must necessarily be
uncertain depending on the judge’s view of what is fair, in all
circumstances of the case.”
I am in respectful agreement with this
dictum.
[24] In
determining a fair compensation, the courts have regard to a number
of factors such as, awards
in comparable cases, inflation and changes
in the value of money and problems arising from collateral benefits.
It is abundantly
clear from the above cases that all the plaintiffs
suffered injuries to varying degrees. The sequelae and aftermaths of
their injuries
also differ in a marked degree. However all of them
suffered disability, though temporary, endured pain and suffering and
discomfort
although to varying degrees.
[25] In
the present case the plaintiff suffered serious injuries to his left
hand. Dr Domingo stated
in his report that the plaintiff suffered,
- a
fracture on his left elbow and the fracture extended from the outer
surface of the elbow to the joint.
This caused the plaintiff to loose some movement in the elbow joint.
- fracture
on left forearm bones i.e ulna. This caused a slight loss of rotation
of the forearm.
[26]
Having taken all the relevant facts and various factors referred to
above into account, I am
satisfied that the following amounts
constitute the fair and reasonable compensation for the plaintiff:
Wrongful arrest and
detention
R 80 000.00
Pain and suffering for
assault
R 50 000.00
Legal
Fees
R
1 000.00_
TOTAL
R131
000.00
___________
ORDER
1. The
defendant is to make payment to the plaintiff in the amount of R131
000.00.
2. Interest
thereon at the rate of 15.5% per annum from 14 (fourteen) days of
date
of judgment to date of final payment.
3. The
defendant is to pay the plaintiff’s costs of suit, including
qualifying
fees of Dr Domingo.
____________________
MOKGOHLOA J
COUNSEL
Counsel for the
Plaintiff : Adv T G Madonsela
Instructing
Attorneys : Laing & Associates
Office 8,
level 6
The Spinnaker
Cnr Albert
Terrance & King Shaka Av
Point
Waterfront
Durban
(Ref:
01/0159/001)
Counsel for the
Defendant: Adv Kilane
Instructing
Attorneys: State Attorney KwaZulu Natal
6
th
Floor, Metropolitan Life Building
391 Smith
Street, Durban
Ref:
468/3/07/P17
Date of
hearing: 11 August 2011
Date of
Judgment: 3 October 2011