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[2009] ZAGPPHC 379
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Masasa v Minister Of Safety And Security (22558/2005) [2009] ZAGPPHC 379 (11 November 2009)
IN
THE HIGH COURT OF SOUTH AFRICA
NORTH
GAUTENG HIGH COURT PRETORIA
CASE
NO: 22558/2005
In
the matter between :
KEOGAILE
SAMUEL
MASASA Plaintiff
and
MINISTER
OF SAFETY AND
SECURITY Defendant
JUDGMENT
ISMAIL
AJ
[1]
The plaintiff brought this action
against the defendant by virtue of the fact that certain members of
the South African Police Services
acting in the course and scope of
their employment with the defendant assaulted the plaintiff and that
the plaintiff was wrongfully
and unlawfully arrested by them.
[2]
The plaintiff alleged that as a result
of the conduct of the policemen he suffered damages arising as a
consequence of the assault
and wrongful arrest.
[3]
At the commencement of the trial the
parties sought a separation of the question of the merits and the
question of quantum in terms
of rule 33(4) of the Uniform Rules of
Court. The matter proceeded before me in respect of the merits and
the question of quantum
was postponed sine die.
[4]
Mr Masasa. the plaintiff testified that
on the 23 March 2004 he was walking past a tavern in Shongoane at
approximately midday when
he observed policemen conducting an
operation. He shouted at a person called Bashing to stop as he wanted
the latter named person
to transport him to his place of employment.
Two policemen who were seated in a vehicle alighted and approached
him. A black policeman
was accompanied by a white colleague. The
black policeman enquired from him what he had said and he replied
that he was speaking
to Bashing. For no apparent reason the black
policeman grabbed him by his belt and thereafter slapped him several
times across
his face. He could not identify the black policeman.
Thereafter the white policeman grabbed him on his shoulder and he
warded of
the policeman's hand as he suspected that the policeman
wanted to grab him by his throat. He was thereafter assaulted by both
the
officers all over his body with fists. Thereafter a group of
policemen arrived and they also joined their two colleagues in
further
attacking him. He was kicked at, lifted and thrown to the
ground. He was throttled and one of the policemen whom he knew. Koos
Makwate. said to the other policemen what would happen if they killed
the plaintiff.
[5]
He was eventually handcuffed by the
white policeman and placed at the back of the police van and he was
taken to Villa Nora police
station where he was detained. He appeared
in court the next day and was released on warning.
[6]
According to the plaintiff he spent
approximately a week at Eilisras Hospital and he was then transferred
to Pietersburg Hospital
where he spent a further two days as an in
patient. He was again treated at Eilisras Hospital for the second
time. He sustained
injuries to his right eye right shoulder and his
ribs. He currently experiences numbness to the right side of his body
and he has
to sleep on the left side.
[7]
He stated that he was acquitted of the
charges which were laid against him by the policemen.
[8]
In a statement made on his behalf by his
attorneys and at paragraph 34 thereof the plaintiff stated:
Die
volgende persone was getuies:
1.
Frans Majadibodu
2.
William Mothopo
3.
Tsitso- die winkelier
4.
Basjan
The
reference to the person Basjan from the evidence it appears to be the
person referred to as Bashing referred to supra.
In
the same statement the plaintiff at paragraphs 2 and 3 stated:
“
2.
op 23/3/2004 het ek en Mpho te voet na Shongoane Uitbreiding 2
geloop.
Toe
ons by die hek van die winkel kom waar ons sigarette wou koop het ek
vir Basjan gesien waar hy 'dice speel.
3.
ek het vir Basjan geskree ' Basjan ek
kom virjou pla”
[9]
Mr Gwala on behalf of the defendant put
the defendant's version at length to the plaintiff. I will deal with
the defendant's version
hereunder in this judgment.
[10]
Plaintiff s case was closed after he
testified.
[11]
Mr Gwala called sergeant Johannes Petrus
Alberts to testify. He stated that he was the only white policeman
who attended a scene
at Shongoane on the 23 March 2004. The police
were conducting crime prevention operations relating to liquor sales
without the
owners being in possession of a license to do so.
[12]
He stated that he was on the premises
but not in the house where his colleagues were busy. According to him
a person who was walking
on the street shouted at him
“that
they were disturbing the people and that it was not their place”
.
Constabel Alberts warned him not interfere with their operation. This
person continued making remarks as he advanced to the gate
of the
premises. Alberts warned him not to enter and that he should go away.
This person ignored his warnings and entered the premises
Alberts
once again warned him that what he was doing amounted to an offence
and that he should leave. This advice was ignored Alberts
then placed
his hand on the person's shoulder introducing himself as a police
officer and the person became aggressive towards
him.
[13]
According to Alberts he pinned the
aggressive person to the ground and then handcuffed him with the
assistance of inspector Mashishi.
He picked the plaintiff up and
walked him to the police vehicle where he was placed at the back of
the vehicle. Whilst he was at
the back of the van the plaintiff
kicked the van's door open. He was pushed into the van as he was
aggressive. He was thereafter
taken to Villa Nora police station
where he was detained.
[14]
Constable Alberts as he then was denied
the version which was put to him by plaintiffs counsel Ms Erasmus.
[15]
With the completion of constabel Alberts
evidence the defendant s case was closed.
[16]
Plaintiff's counsel submitted that the
plaintiff proved its case against the defendant and that the court
should find for the plaintiff
on the merits Mr Gwala argued the
contrary and submitted that plaintiff’s claim should be
dismissed with costs.
[17]
There exist two opposing versions of
what transpired at the premises where the pliaintiff was arrested The
authority which the court
should follow in cases such as this is the
matter of National Employers Mutual General Insurance Association v
Gany 19931 AD 187
at 199 where Wessels JA stated:
'where
there are two stones mutually destructive, before the onus is
discharged the Court must be satisfied upon adequate grounds
that the
story of the litigant upon whom the onus rests is the true version
and the other false. It is not enough to say that the
story told by
Clark is not satisfactory m every respect”.
Coetzee
J in
African Eagle Life Assurance Co
Ltd v Camer
1980 (2) SA 234
(W) at
237 H-238 B referring to the
Gany
matter stated.
“It
is frequently said that the dictum in the Gany case does not apply to
civil cases because of the omission of the learned
Judge to have
regard to the measure of proof in civil cases being on a balance of
probabilities But the criticism is invalid because,
unless suitably
qualified, it confuses proof with the measure of proof. Where there
is no probability there is simply no proof
of anything (regardless of
the measure by which you measure it) unless you believe one personand
disbelieve the other Until then
the chances of it being black or
white remain exactly evenly balanced”.
[18]
Mr Gwala relied on the provisions of
section 40 (1) (a) of Act 55 of 1977. the Criminal Procedure Act
which permitted an officer
to effect an arrest without a warrant
Section 40 (1) of the CPA reads as follows:
“
(1)
A peace officer may without warrant arrest any person- who commits or
attempts to commit any offence in his presence;
…
...
…
........
(j)
wifully obstructs him in the execution of his duty;
…
.........
(q)..............”
He
submitted that constable Alberts warned him not to enter the premises
as the police were busy with an operation and notwithstanding
such a
warning the plaintiff entered the premises. When the policeman placed
his hand on the plaintiff's shoulder in order to effect
an arrest the
plaintiff became aggressive which necessitated reasonable force being
applied. According to Mr Gwala the plaintiff
wanted ”to be a
hero”.
[19]
On the evidence presented before me
according to the plaintiff he was severely beaten by several
policemen in the presence of several
onlookers. The defendant's
version was that he was not beaten. One would in these circumstances
at the very least have expected
the plaintiff to call one or some of
the persons mentioned in para [8] above to testify on his behalf.
None of the persons mentioned
by him were called to give evidence.
In
fact I am told that the police officer referred to by the plaintiff
who said that they were going to kill the plaintiff made
a statement
which is contained at pages 41 and 42 of the bundle Inspector Koos
Nkoati in his statement does not support the plaintiffs
allegations,
on the contrary he supports Alberts' version. At paragraphs 3 and 4
of his statement he statad that when he came out
of the house he
heard someone shouting at the police. He approached the back of the
police vehicle in order to see who was making
a noise and he saw the
plaintiff.
[20]
No medical evidence was led relating to
the injuries which the plaintiff apparently sustained. I was informed
by Ms Erasmus that
the doctor who completed the medical report or J88
form refused to testify as he had some or other problem with the
Health Professional
Council. One wonders why another doctor was not
called in his place as the plaintiff spent several days at the
Eilisras Hospital
and was even transferred to Petersburg Hospital.
[21]
The plaintiff contradicted his written statement when he testified In
his statement he stated that “
toe
ons by die hek van die winkel kom waar ons sigarette wou koop het ek
vir Basjan gesien waar hy dice speel”
.
Ek het vir Basjan gesreeu Basjan ek
kom vir jou pla”.
In his viva
voce evidence he stated that he saw Basjan walking on the premises
when he shouted at him Basjan or Bashing as he was
referred to, was
not called to give evidence on behalf of the plaintiff.
[22]
I am of the view that in the light of
the evidence tendered before me I cannot make a finding on the
probabilities that the plaintiff
had discharged the onus placed on
him. Mr Gwala submitted that I should dismiss the plaintiff s claim
with costs. I enquired whether
it would not be proper if I were to
find that the onus had not been discharged to grant absolution from
the instance and Mr Gwala
stated that he would not oppose such a
finding.
[23]
In the circumstances I make an order of
absolution from the instance and order the plaintiff to to pay the
costs of the action.
______________________
ISMAIL
AJ
For
the Plaintiff; Adv N Erasmus instructed by Manas Basson Incorporated
For
the defendant Adv M Gwala instructed by State Attorney Pretoria
Date
of Trial: 26 October 2009
Judgment
Delivered: 11 November 2009.