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2024
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[2024] ZAMPMBHC 9
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Mashaba v Minister of Police (4574/2021) [2024] ZAMPMBHC 9 (9 January 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
MPUMALANGA
DIVISION, MBOMBELA
Case
No:
4574/2021
(1)
REPORTABLE:
YES
/NO
(2)
OF INTEREST TO OTHER JUDGES:
YES
/NO
(3)
REVISED:
YES
/NO
DATE 9 January 2024
SIGNATURE
In the matter between:
LUNGA
THOMAS MASHABA
Plaintiff
and
THE MINISTER OF
POLICE
Defendant
JUDGMENT
Mazibuko
AJ
1.
The plaintiff sued the defendant for an amount of R1 million for
Constitutional
damages and R1.5 million for general damages (pain and
suffering, as well as emotional stress and trauma) he suffered
following
the conduct of the members of the defendant (‘the
SAPS’) at Pienaar, Daantjie police station on 28 February 2021,
acting
within the course and scope of their employment with the
defendant. Wherein the plaintiff was assaulted and treated in a
degrading
manner.
2.
Before the trial commenced, the parties agreed to separate the
quantum and merits.
At the closing of the plaintiff and defendant
cases, the parties requested to file heads of argument (‘the
heads’).
Through his counsel, the plaintiff filed his heads on
2 November 2023, whilst the defendant filed theirs on 15 November
2023.
3.
On 20 November 2023, correspondence was dispatched to the parties
inquiring whether
the parties insist on the separation of merits and
quantum or the parties would elect to make further submissions
relating to the
quantum, considering the concession made by the
defendant in that the plaintiff’s claim may be awarded as per
the
particulars of claim.
4.
On 13 December 2023, the plaintiff responded and requested the court
to consider
merits only since both parties agreed that merits and
quantum should be separated. This judgment will, therefore, focus on
the
merits.
5.
It was common cause between the parties that on 28 February 2021,
there was community
unrest or protest at or near Pienaar Dantjie
police station. The police arrested people, and one of them was the
plaintiff.
6.
During the trial, the facts in dispute between the parties were that
the plaintiff
was brutally assaulted, tortured, and treated in a
cruel, inhumane and degrading manner by the police. The police failed
to uphold
section 205(3) of the Constitution of the Republic of South
Africa Act 108 of 1996, and the police violated the plaintiff’s
Constitutional rights.
Plaintiff’s case
Plaintiff
7.
The plaintiff testified that he went to Pienaar police station to
open a case
of attempted murder and hijacking after someone attempted
to hijack his NP200 motor vehicle. That person had stabbed him in his
shoulder and had in his possession a firearm. The community members
arrested the plaintiff’s assailant. The community leaders
took
him to the police station with the plaintiff.
8.
The police refused to open a case, informing them that they wanted
the firearm
they alleged the assailant had in his possession. The
community members refused to hand over the firearm until the case was
opened.
The police informed them to leave and come back at 11H00 with
the firearm. In that midst, Mr Siyabonga Manana, the second
plaintiff’s
witness, got arrested, and the community became
upset. They began to chant, throwing stones, barricading the roads
and closing
the police station’s gates.
9.
The police fired rubber bullets shots. Later, the live ammunition.
They ran away.
The plaintiff ran and hid inside a neighbouring house.
He was arrested and could identify Sergeant Maseko as one of the
police
who arrested him. He was hit on the front head with a fist and
with a but of a gun on his chest. On their way to the police station,
the police stepped on his feet with their boots. He was kept in a
waiting cell with handcuffs on for about four to five hours.
10.
During his stay in the cell, he asked the police to go to the toilet,
but they just laughed
at him and did not open the cell doors for him
to go to the toilet. He called one of the police known to him as
Zebra, who told
him he would see what he could do. He was unable to
go to the toilet with his hands cuffed. Subsequently, he was forced
to urinate
himself. He asked the second witness, Mr Manana, to
capture a video footage. After a few hours, the police came and,
removed the
handcuffs and took him to a single cell. He was later
charged. His cell phone and belt were then taken from him.
11.
At about 8 PM on the same day, the police came and found him lying
down and assaulted him,
asking him for his friends. At about
midnight, they came again and assaulted him further.
12.
On Monday morning, he requested the police officer for medication as
his wrists were swollen
and the two tiny fingers were turning green.
He was advised the station did not have medicine for his injuries and
that he would
need to go to the clinic. On Tuesday, he appeared
before the court and was granted bail. He could not pay as the police
needed
the receipts book. He was released later, and the clinic was
already closed.
13.
He attended court for about eight months until his charges were
withdrawn, as the docket
was not in court.
14.
Four video footage clips taken by Mr Manana with the
plaintiff’s cellphone were
played in court. They reflected the
plaintiff being handcuffed whilst inside a police holding cell. His
pants appeared wet, and
he testified that that was because he
urinated himself to relieve himself, as the police did not take him
to the toilet.
Siyabonga Manana
15.
Mr Manana testified that he was also arrested and kept in the same
holding cell
as the plaintiff. He took
the video footage with the plaintiff’s cell phone at the police
station holding cell, where he was
kept with the plaintiff.
Defendant’s case
16.
The defendant relied on the evidence of Sergeant Ophrey Maseko
(hereinafter referred to
as ‘
Sergeant Maseko’
) in
its defence. He testified that the plaintiff and others came to
submit a firearm on the day in question. While assisting them,
they
became violent and started throwing stones at them, which led to
their arrest. In an attempt to control the crowd, they arrested
the
plaintiff together with other people. The plaintiff had injuries at
the time of his arrest.
17.
He denied that the plaintiff was assaulted and sustained injuries at
the police station
and also denied that the plaintiff was left with
handcuffs on in the holding cell for a period of four to five hours.
Issue
18.
The issue is whether the plaintiff has made out a case to be awarded
Constitutional damages
and general damages for a breach of his right
not to be tortured and subjected to cruel, inhuman or degrading
treatment and assaulted
by the SAPS.
Legal principles
19.
Section 49 of the Criminal Procedure Act
[1]
,
provides:
‘
(2)
If any arrestor attempts to arrest a suspect and the suspect resists
the attempt, or flees, or
resists the attempt and flees when it is
clear that an attempt to arrest them is being made, and the suspect
cannot be arrested
without the use of force, the arrestor may, to
effect the arrest, use such force as may be reasonably necessary and
proportional
in the circumstances to overcome the resistance or to
prevent the suspect from fleeing, but, in addition to the requirement
that
the force must be reasonably necessary and proportional in the
circumstances, the arrestor may use deadly force only if-
(a)
the suspect poses a threat of serious violence to the arrestor or any
other person; or
(b)
the suspect is suspected on reasonable grounds of having committed a
crime involving the
infliction or threatened infliction of serious
bodily harm and there are no other reasonable means of effecting the
arrest, whether
at that time or later.’
20.
Section 12(1) of the Constitution
[2]
(‘
The
Constitution’
),
provides:
(1)
Everyone has the right to freedom and security of the person,
which includes the right-
(a) not to be deprived
of freedom arbitrarily or without just cause;
(b) not to be detained
without trial;
(c) to be free from
all forms of violence from either public or private sources;
(d) not to be tortured
in any way; and
(e) not to be treated
or punished in a cruel, inhuman or degrading way.
(2)
Everyone has the right to bodily and psychological integrity, …
Discussion
21.
The plaintiff argued that his delictual claim following the unlawful
conduct of the police
of assaulting and treating him in a cruel,
inhumane and degrading manner ought to succeed. The details of the
assault alleged and
which form the basis of claims of assault are
pleaded in paragraphs 6.1. to 7.3 of his particulars of claim, in
that the SAPS had
no reasonable cause to assault him, refuse to
remove handcuffs whilst kept in a police holding cell, and deny him
access to use
the toilet which forced him to urinate himself.
22.
Regarding the Constitutional damages, in paragraphs 8.1 to 8.6 of his
particulars of claim, in summation,
the plaintiff pleaded, placing
its reliance on section 205(3) of the Constitution, in that the SAPS
had to protect him and had
no right to assault and humiliate him and
treat him in a cruel, inhumane and degrading manner. Further,
his right to human
dignity, the right not to be assaulted or
tortured, treated or punished in a cruel, inhuman or degrading way,
was violated.
23.
The defendant argued that on the day in question, there was public
violence, arrests were
made to control the crowd, and reasonable
force had to be exercised on some of the people. It placed its
reliance on the case of
S v Trainor
[3]
,
where it was held: ‘All
that
is required is that there should be a reasonable relationship between
the attack and the defensive act, in the light of the
particular
circumstances in which the events take place.’
24.
What the particulars of claim assert and the plaintiff’s oral
evidence are the same
save to note that the particulars stated that
he was first kept alone in the single cell whilst he testified that
he was first
kept with other people in the cell before he was taken
to a single cell. This difference between the pleadings and the oral
evidence
does not affect the material factual evidence of the
plaintiff’s case.
25.
The plaintiff has a right in terms of section 10 of the Constitution,
which provides: ‘
Everyone has inherent dignity and the right
to have their dignity respected
and
protected.’
No convincing evidence was presented
indicating that the plaintiff resisted arrest, justifying any form of
assault. What was presented
was that he was assaulted with the butt
of the firearm and stepped on his feet from the moment he was taken
from the house where
he was hiding after they were dispersed by the
police using rubber bullets until his detention in the police cell.
Whilst detained
in the police cells, he continued being handcuffed
for a period between 4 to 5 hours and was caused to urinate himself
when he
was denied access to the toilet. I find that the SAPS’s
conduct in assaulting the plaintiff was not justified. Further, there
was no other reason to conduct themselves the way they did except to
demean the plaintiff in front of other detainees whilst violating
his
right to dignity. His right to dignity was not respected and
protected whilst under police custody.
26.
Section 205(3) of the Constitution provides: ‘
The
objects of the police service are to prevent, combat and investigate
crime, to maintain public order, to protect and secure
the
inhabitants of the Republic and their property, and to uphold and
enforce the law.’
The factual evidence is that he
requested to go to the toilet in a different room from the police
cell where he, Mr Manana, and
others were.
27.
Sergeant Maseko’s evidence does not establish why the SAPS did
not remove the handcuffs
from the plaintiff as he was already inside
the police cell, even after he requested them to, and others were not
handcuffed. Also,
why they refused to uncuff him so he could go and
relieve himself. The plaintiff’s testimony was that he was
forced to urinate
himself, and in front of other people, he had to
remain in wet pants until he was charged and taken to a single cell.
I find that
the police breached their
Constitutional duties and violated the plaintiff’s
Constitutional rights when they assaulted him
without any good cause,
kept him in a police cell with handcuffs on and denied him access to
the toilet, which is cruel, inhuman
and degrading treatment by the
SAPS.
28.
Having so concluded,
what
appropriate relief should be granted? The plaintiff's claim is that
of general and Constitutional damages for compensation
for loss
suffered as a result of the assault and breach of constitutional
rights and duties by the SAPS
. The
case the plaintiff sought to make did not turn on anything
distinguishing his matter from any other falling under the same
category.
There is no
basis to conclude that the Constitutional damages need to be awarded
in addition to the general damages. The facts before
me do not
justify the award of Constitutional damages as a separate claim. The
facts the general damages are based upon are the
same as those of the
Constitutional damages. The award of the general damages will be the
appropriate relief. The SAPS's unlawful
conduct of assault on the
plaintiff is already an offence punishable by laws which are aligned
with the Constitution. The award
of the general damages will serve to
vindicate the Constitution.
29.
Section 7(2) of the Constitution states: ‘
The
state must respect, protect, promote and fulfil the rights in the
Bill of Rights.’
It is common cause that the SAPS failed to perform certain
obligations towards the plaintiff, which resulted in him suffering
injuries emanating from the assault and being humiliated when he was
denied access to the toilet, resulting in him urinating himself.
The
claim for constitutional damages results from the defendant's failure
to perform those obligations. The Constitution obligates
the state
‘
to
protect, promote and fulfil’
fundamental rights. In Modderfontein Squatters Greater Benoni City
Council v Modderklip Boerdery (Pty) Ltd,
[4]
it
was held: ‘
Courts
are mandated, if a constitutional duty has been breached, to grant
appropriate relief. Relief must also be just and equitable
.’
30.
It was explained in Ferreira v Levin NO and Others; Vryenhoek and
Others v Powell NO and
Others
[5]
that: ‘
As
a general rule, private litigation is concerned with the
determination of a dispute between two individuals, in which relief
will be specific and, often, retrospective, in that it applies to a
set of past events. Such litigation will generally not directly
affect people
who
are not parties to the litigation. In such cases, the plaintiff is
both the victim of the harm and the beneficiary of the relief.
In
litigation of a public character, however, that nexus is rarely so
intimate. The relief sought is generally forward-looking
and general
in its application so that it may directly affect a wide range of
people. In addition, the harm alleged may often be
quite diffuse or
amorphous.’
31.
In
Komape and Others v Minister of Basic Education
[6]
,
it
was said,
‘
[67]
What then is the object of the claim for constitutional damages and
an order for a declaration of rights? The aim of a claim
for damages
ex delicto is not to enrich a claimant who has suffered loss but to
compensate for the loss suffered.
[7]
In
my judgment, the reality is that the compensation claimed as
constitutional damages is nothing short of a claim for punitive
damages.
51
A court, faced with such a claim, must decide whether an award of
constitutional damages is just and equitable. An appropriate
remedy,
in my view, is an order directed at the enforcement, protection and
the prevention of future encroachment of the rights
protected in the
Bill of Rights if the harm suffered is not adequately addressed by an
effective common law claim for damages the
elements of which include
violations of protected human rights.
52
’
32.
In
Fose v Minister of Safety and Security
[8]
,
it was said:
‘
[
98]
I have argued that “appropriate relief” vindicates the
Constitution and deters further violations of it. I see no
reason in
principle why common law and statutory remedies can never be suitable
for this purpose. The appellant has not persuaded
me to the contrary.
Of course, there will be instances where these remedies are
ill-suited. For example, a common law remedy is
unlikely to address a
diffuse and systematic pattern of rights violations.
15
Nevertheless, common law
remedies - particularly delictual remedies - have been designed to
protect personality interests such as
dignity which are central to
chapter
three.
16
In cases where the harm
arising from a rights violation is highly
localised,
a common law remedy may well be appropriate; that is, it may
effectively vindicate the Constitution
and deter further violations of it. This is not to speak of the wide
range of common law
administrative remedies which are readily
harnessed to our constitutional needs.
[99]
There are powerful reasons for not excluding common law and statutory
relief from the ambit of s 7(4)(a). Many recent statutes,
such as the
Labour Relations Act 17, seek to codify constitutional rights and are
expressly designed to provide suitable relief
for the infringement of
constitutional rights. It would undermine the best efforts of the
legislature to exclude these remedies
from a court’s arsenal of
remedial options. In the case of the final Constitution, the
indications are more compelling, and
I would have thought conclusive,
that the drafters had no intention of excluding common law and
statutory remedies from the remedial
scheme.
18
[
100]
A court has a wide range of remedies in exercising its s 7(4)(a)
powers. These remedies include common law relief (developed
if
necessary by s 35(3)), statutory relief, declaratory relief
(expressly mentioned in s 7(4)(a)) and a number of potential remedies
under ss 98 and 101(4). There is no reason, at the outset, to imagine
that any remedy is excluded. Provided the remedy serves to
vindicate
the Constitution and deter its further infringement, it may be
“appropriate relief” under s 7(4)(a).
19
‘
33.
I am not persuaded that the
plaintiff has made out a case for Constitutional damages to be
awarded in addition to the general damages
claimed. With the facts
before me, the award of the general damages as claimed would be an
appropriate relief to protect and enforce
the Constitution.
No
persuasive evidence
emerged that the award of the
Constitutional
damages will serve to protect the rights violated or that such will
serve to enforce any of the violated rights differently
from the
award of general damages.
34.
Following the considerations in the cases
mentioned above, I believe
the defendant must be held
vicariously liable for the unlawful assault and demeaning treatment
of the plaintiff by the SAPS. Considering
all the facts before me,
the general damages claim
should succeed.
Order
35.
For these reasons, the following order is made;
1.
The plaintiff’s claim for general damages succeed.
2.
The defendant shall pay the costs of suit.
N.
Mazibuko
Acting
Judge of the High Court, Mpumalanga, Mbombela
This
judgment is digitally submitted by emailing it to the parties.
Counsel
for the Plaintiff:
Mr WP
Meintjies
Instructed
by
Meintjies
and Khoza Attorneys
Counsel
for Respondents:
Mr SP
Nkosi
Instructed
by:
State
Attorney’s office, Mbombela
Date
of hearing:
12
October 2023
Judgment
delivered on
9
January 2024
[1]
Act
51 of 1977
[2]
The
Constitution of the Republic of South Africa No. 108 of 1996
[3]
2003
(1) 35 SACR SCA at para 13
[4]
(Agri
SA and Legal Resources Centre Amici Curiae); President of the
Republic of South Africa and Others v Modderklip Boerdery
(Pty) Ltd
(Agri SA and Legal Resources Centre Amici Curiae)
2004 (6) SA 40
(SCA) para 18.
[5]
1996
(1) SA 984
(CC);
1996 (1) BCLR 1
(CC) at para 72;
Bernstein
and Others v Bester and Others
NNO
[1996] ZACC 2
;
1996 (4) BCLR 449
(CC);
1996 (2) SA 751
(CC) at paras 132-3.
[6]
[2019]
ZASCA 192; 2020 (2) SA 347 (SCA).
[7]
Telematrix
(Pty) Ltd t/a Matrix Vehicle Tracking v Advertising Standards
Authority SA
2006 (1) SA 461
(SCA) para 12.
[8]
[1997] ZACC 6
;
1997
(3) SA 786
(CC), at paras 98-100.