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2024
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[2024] ZAECELLC 21
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Maliwa v Minister of Justice & Correctional Services Republic of South Africa (154/2022) [2024] ZAECELLC 21 (22 February 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, EAST LONDON CIRCUIT COURT)
NOT
REPORTABLE
CASE
NO. 154/2022
In
the matter between:
ANDILE
MALIWA
Plaintiff
And
MINISTER
OF JUSTICE &
CORRECTIONAL
SERVICES
REPUBLIC
OF SOUTH AFRICA
Defendant
JUDGMENT
(IN RESPECT OF MERITS)
HARTLE
J
[1]
The plaintiff, an inmate at the West Bank Correctional Centre at
the
relevant time, claims that he was wrongfully and unlawfully assaulted
on 13 August 2021 by a member of the Department of Correctional
Services, one Mr. Buyani, by kicking him underneath his left foot
with a booted foot and by hitting him with a baton.
[2]
This unlawful conduct was said to have been committed within the
precinct of the prison where the plaintiff was detained and whose
officers were responsible for his safe custody. The assault
was
alleged to have been perpetrated by Mr. Buyani in an office, in the
presence of another correctional services officer, “
Mr.
Mlungwana
” (it appears to be common cause that the name is
incorrect and that this should have been a reference to a Mr.
Magidwana).
A fellow inmate, Mr. Kangapi, was also said to have been
present.
[3]
The defendant denies that the plaintiff was assaulted at all and
put
him to the proof of the salient allegations. From the plea a
narrative was laid down as to how the plaintiff had become
injured as
follows:
“
2.2
In amplification of such denial defendant avers that plaintiff is the
one who assaulted another inmate
by the name of Luyolo Kangapi and
was consequently repelled by other inmates who had intervened to stop
the unwarranted attack
by plaintiff from continuing.
2.4
Defendant further avers that plaintiff sustained injuries whilst
being repelled by other
inmates who were stopping him from assaulting
fellow inmate Luyolo Kangapi.
…
3.3
… Defendant reiterates that it was plaintiff who assaulted
another inmate by the
name of Luyolo Kangapi on the date in issue
herein, this sudden and surprise attack by plaintiff upon another
inmate was not reasonably
foreseeable.
3.10
Defendant further avers that it transpired after the incident that
plaintiff had engaged in illegal
activities involving exchange of
dagga between him and inmate Luyolo Kangapi who was assaulted by
plaintiff, that the assault of
Luyolo Kangapi by plaintiff was a
result of those illegal activities.
3.11
Defendant surmises that the assault committed by plaintiff upon
fellow inmate and the physical intervention
by other inmates against
plaintiff was a gang related incident as it then transpired after the
incident that plaintiff was a member
of the 26’s gang and
subscribed to its code.”
[4]
The fact that the plaintiff was injured on that day was not in
dispute,
the defendant however absolving the Department from any
responsibility therefor.
[5]
At the onset of the matter I issued an order (by agreement between
the parties) separating merits from quantum.
[6]
The plaintiff himself testified as did his fellow inmate, Mr.
Kangapi,
who was requisitioned from the prison to come and give his
testimony.
[7]
The defendant called the correctional officials who were implicated
by the plaintiff.
[8]
A bundle of documents marked Exhibit “A” were entered
into the record by consent on the customary basis that they are what
they purport to be.
[9]
These
documents comprise firstly of medical records of the hospital at the
West Bank Correctional Centre but without the salient
page of the
plaintiff’s in-house examination on 13 August 2021. The
reverse of page 5 of the series of documents styled
“Medical
Practitioners History/Continuation Sheet” was not copied by the
Department but following this examination
the records do reveal what
happened afterwards, namely that the plaintiff was referred to the
Frere Hospital on 1 September 2021
following the diagnosis of a
fracture to his left foot to have “Plaster of Paris”
applied to it and other treatment
administered to him.
[1]
[10]
The second critical set of documents contains statements, internal
memoranda and reports
relating to an investigation by the defendant
of an alleged assault claim against Mr. Buyani by the plaintiff.
(The defendant
did not allude to any of the documentation at all in
his testimony but referenced it in cross examination during the
plaintiff’s
case to discredit the latter and his witness).
[11]
Other random prison registers and diaries feature amongst the
documents in the bundle but
were also not given any particular
context in relation to the issues in dispute between the parties.
[12]
The plaintiff’s testimony in line with the extensive
allegations set out in his particulars
of claim was in essence that
he and Mr. Kangapi had been summoned to Mr. Buyani’s officer
after the two of them had been
involved in a conflict situation that
morning, enroute from the kitchen back to their cells after fetching
their breakfast.
The plaintiff was quite frank that their
differences related to an accusation by Mr. Kangapi that he had taken
his dagga.
He was equally frank that he had rebuffed him and
had struck him with his plastic coffee mug on his cheekbone.
Other inmates
intervened to diffuse the situation and the situation
ended there.
[13]
Later he was called by Mr. Magidwana (who in his view could not
personally have witnessed
his and Mr. Kangapi’s altercation)
and taken to Mr. Buyani’s office. They collected Mr.
Kangapi along the way.
Another inmate by the name of Mavusi was
also summoned by Mr Magidwana to confirm that the plaintiff had
struck Mr. Kangapi with
a mug.
[14]
After Mavusi left, Mr Magidwana made a report to Mr. Buyani that he
and Mr. Kangapi had
been fighting and “
causing problems in
the section”
. It was emphasized that it was not the
first time for the plaintiff to be called to the office. Mr.
Buyani took out
a baton from a table and forced him to sit down.
He instructed the plaintiff to take off his shoes. Once he was
shoeless,
Mr. Buyani stood on his legs and also hit him. When
the plaintiff managed to free his leg, Mr. Buyani kicked him on his
mouth.
He was then ordered to get out of his office.
[15]
He left Mr Kangapi behind with the two correctional officers.
[16]
Whilst trying to put his shoes back on he realised that his foot was
injured and that he
could only move on one leg. When he saw Mr.
Buyani exit from the office he asked to be taken to the prison
hospital because
he was injured, but the latter refused to do so,
offering instead to bring him Ibuprofen.
[17]
He was escorted back to the cell by Mr. Buyani who instructed him to
first wipe the blood
off his mouth before he could enter there.
[18]
He guardedly waited until another correctional officer came along to
the cell to be asked
to be taken to the hospital to receive
attention. That person happened to be Mr. Nabe (also known as
Radebe) to whom he reported
that he had been assaulted by a prison
warder.
[19]
The latter undertook to get help and later Mr. Buyani himself arrived
to respond to his
request.
[20]
He was ultimately taken to the hospital by Mr. Buyani who also
collected Mr. Kangapi along
the way.
[21]
At the hospital (this was only around 12h00) he consulted with a Dr.
Jonas, and Mr. Kangapi
saw Nurse Manchowe.
[22]
He knew instinctively (even before having had an x-ray) that his
bones were broken because
they were protruding at the top of his
foot.
[23]
The assault was also mentioned to the Deputy Commissioner who
downplayed the incident and
who asserted that it was rather an
accident.
[24]
He denied
that he had been injured by anyone other than Mr. Buyani and under
cross examination refuted the elaborate premise of
a hit on him by
way of a gangsterism cleansing ritual although he candidly admitted
being part of the 26’s gang.
[2]
[25]
Mr. Kangapi corroborated the plaintiff’s evidence in most
respects except he claimed
that he had hit himself with his own mug
he was holding at the time, which had occasioned a very slight injury
to his cheek.
He also related the details of the assault
differently. He claimed that Mr. Buyani had first “
clapped
”
the plaintiff on his head using his knee and that he had, in addition
to the baton, also used a broomstick that was to hand
to hit him
under his legs. The baton featured largely in the assault as
well according to him and he confirmed that pressure
had been brought
to bear on the plaintiff’s legs with this object. Also,
contrary to the plaintiff’s testimony,
he related that Mr.
Magidwana was not present during this ordeal, having left to complete
his roll call.
[26]
The witness identified the statement purportedly taken from him in
the internal investigation
as one signed by him on page 3 thereof.
He did not recognize the initials endorsed on the first two pages and
claimed to
have been presented with only a single page of the
statement which he was prevailed upon to sign. The statement
was not read
back to him. He appeared to be surprised by the
allegation in it that he had supposedly not been present when the
plaintiff
was assaulted by officials. (As an aside the
investigator who took his statement, Mr. Lungile Javu, was not
prevailed upon
by the defendant to testify concerning his role played
in the investigation or the taking of any of the statements.)
[27]
Mr. Kangapi also refuted the suggestion that the plaintiff had been
assaulted by fellow
gangsters.
[28]
Mr. Buyani, when he testified, denied that he had assaulted the
plaintiff although he professed
to have gone about a properly
authorized interrogation of the two inmates in his offices, alone,
and in the absence of any other
officials. He claims also to
have made a formal entry concerning his encounter with the two in Mr.
Kangapi’s case file.
He made a point of emphasizing that
he could not trace the plaintiff’s case file at the time
because the latter had been
charged with possession of dagga, hence
the absence of it from the cabinet where it is normally kept.
(He did not explain,
however, why the file could not be endorsed
later, or why it was not endorsed at all for that matter for
something so critical
that warranted his formal dealing with the
matter.)
[29]
He sought to explain that while it was standard operating procedure
to take both victim
and perpetrator to the hospital to be examined
(even though the plaintiff was uninjured according to his testimony)
he did not
do so at the moment of the plaintiff leaving his office
because no nurses would be present at their station by then.
Reminded
of his earlier testimony that they are already at work by
07h00, he could not account for the lapse in time between dismissing
the two inmates from his office and responding to Mr. Nabe’s
request later to take them both to the hospital. He asserted
that he had planned to do so in any event and that the reason for
this is that protocol required both culprits in a fight to be
examined.
[30]
According to him when he ultimately went to collect the plaintiff to
take him to the hospital
he noticed that he was limping. He
asked him why and the plaintiff reported that his foot was sore but
declined to tell him
what had happened.
[31]
He was present during the examination of the plaintiff. Mr.
Melamane (head of security)
was also present. (He did not take
credit for summonsing him here but also failed to explain how he
would have known that
he should be there as if he knew that his
presence was formally required following upon a complaint.)
[32]
He was shocked and surprized by the accusation coming from the
plaintiff at the hospital
that he was supposedly the perpetrator of
an assault that had caused the latter’s injury.
[33]
Mr. Magidwana in his testimony denied that he had been present at the
time of the assault.
Asked by counsel for both parties if the
plaintiff had been free of injuries when he handed the inmates over
to Mr. Buyani, he
claimed not to have noticed anything wrong with the
plaintiff.
[34]
Counsel for the parties recognized in making closing submissions that
at the end of the
day it came down to the court resolving a mutually
destructive version between the parties.
[35]
The time honoured assessment of opposing versions in a civil trial is
well known and need
not be repeated here.
[36]
The only issue in dispute is whether the plaintiff was assaulted in
the manner alleged
by him, that is by Mr. Buyani, or whether he
sustained the injury to his foot in the manner suggested by the
defendant in the plea.
[37]
If the latter, I point out immediately that it is then improbable
that Mr. Magidwana would
not have noticed by the time he handed the
men over to be dealt with by Mr. Buyani that the plaintiff was
injured as the defendant’s
pleaded version is that the
plaintiff sustained his injuries whilst being “repelled by
other inmates who were stopping (the
plaintiff) from assaulting (Mr.
Kangapi)”. This scuffle between the two men is indeed what
brought them to Mr. Buyani’s
office.
[38]
The plaintiff struck me as an honest witness. He readily made
concessions even concerning
matters that are against his interests as
a parolee. His evidence was further consistent with the medical
records and was
corroborated by Mr Kangapi’s to a large extent
in respect of the material issue, namely whether he was assaulted by
the correctional
officer. Mr. Kangapi also testified boldly,
and unhesitatingly made concessions concerning matters against his
interests
as an inmate.
[39]
To my mind the discrepancies in their accounts of the assault are to
be expected given
the lapse of time since the event and the
individual perspectives of each. By all accounts the plaintiff
was traumatized
and crying loudly and was also, according to Mr.
Kangapi, under a table at the time of the assault with only his legs
exposed.
[40]
Although only a single discrepancy in a statement made by Mr. Buyani
in the internal investigation
initiated against him was put to him
under cross examination to defend (this concerning him having
stated in the affidavit
that he
immediately
took both inmates
to the hospital to be examined according to the standing order
protocols after he dealt with them in his office,
his statement
presented in the official investigation is dramatically different
from his evidence given in court that this only
happened much later
in the morning by reason of the fact that he could not leave the
section earlier. It also differs significantly
in that in the
statement he acknowledged that the plaintiff came to his office
already injured whereas in his oral testimony he
and his colleague
Mr. Magidwana both sought to create the opposite impression.
[41]
I quote from it to give a context to a concern that he was either
misleading the court,
or the Department in its official investigation
against him:
“
I interviewed
them in the office and I noticed a slight injury on the left check of
inmate Kangaphi and I took them to inside hospital
immediately after
having interviewed them because inmate Maliwa informed me about his
sore foot. Upon arrival at the hospital
he changed the story
and said he was assaulted.”
[42]
There were several other aspects of his testimony and his claims as
an officer as to how
he officially dealt with the matter that do not
align with the official records of the prison. He put the
discrepancy regarding
the time at which he supposedly took the
plaintiff and Mr. Kangapi to the hospital to be examined down to a
mistake on the part
of the deposing officer, Mr. Javu’s, but
the latter was not called by the defendant to deal with the obvious
conflict.
[43]
Other anomalies (or stark differences) between Mr. Buyani’s
testimony and the department’s
official records introduced into
evidence as Exhibit “A” were also not cleared up by any
explanation by the Department
that is responsible for the care of
prisoners under its guard. The official report of the security
official, Mr. Melamane,
excludes any indication that there was a gang
related incident or that the plaintiff was supposedly assaulted after
the fact by
gang members, this being Mr. Buyani’s version when
he testified. Although naming Mr. Kangapi as a perpetrator (who
is noted in the report to have punched the plaintiff with a fist
after the two of them had a quarrel) the security report confirms
additionally that the plaintiff was indeed taken to the official’s
office and beaten under the foot with a tonfa. (The report
also
happens to confirm the plaintiff’s testimony that he suffered a
facial injury as well).
[44]
A complaint register, albeit dated 21 August 2021, recorded that the
plaintiff was assaulted
“
by officials
” and wished
to make a case. It was not explained why he was not afforded an
audience with the police officer to do
so.
[45]
The particular page of the hospital’s clinic notes which would
have indicated exactly
what time the plaintiff was examined and
whatever else was recorded in the staff’s clinical notes was
not photocopied and
the court’s directive to the Department to
bring the original documents to the court so that the reverse page
could be read
in was not complied with.
[46]
One would have imagined, given the defence mounted by the defendant,
and the lawful obligation
on it to maintain the safe custody of
inmates under the Department’s care (and to give an official
account therefor), that
the Department would have gone out of its way
to deflect any indication of wrongdoing on the part of Mr. Buyani if
that were the
case, but several gaps were left wide open, leaving it
to be plausibly inferred that were was indeed a contemporaneous
complaint
against him and that it arose by virtue of him having
beaten the plaintiff as claimed by the latter. The further
implication of
it all is that testimony presented by the defendant,
inconsistent with the pleaded case as well, falls to be rejected as
untrustworthy.
[47]
The strange nature of the assault on the plaintiff further supports
the probability of
a secret assault, or one that could not easily be
detected afterward.
[48]
I point out incidentally that the further suggestion that Mr.
Kangapi would falsely
implicate Mr. Buyani by his testimony because
he was angry concerning the revocation of his parole, was refuted by
counsel placing
on record that Mr. Kangapi’s decision to
testify on the plaintiff’s behalf had preceded the revocation.
Mr. Kangapi
unchallenged evidence further is that he was regarded in
prison as a “
model prisoner
”.
[49]
Mr. Radebe who would have been able to provide an official account of
his involvement (confirmed
by the fact that he also made a statement
in the investigation consistent with the plaintiff’s case that
he had called out
to him in passing to report that he had been
assaulted and wanted to be taken to the hospital) was surprisingly
not called by the
defendant.
[50]
In the result I am satisfied on balance of probability that the
plaintiff has met the burden
on him to establish that he was
assaulted by Mr. Buyani under the circumstances claimed.
[51]
In the result I make the following order:
1. The
defendant is liable to compensate the plaintiff for such damages as
may be proven or agreed arising from
the assault upon him at the West
Bank Correctional Centre on 13 August 2021 by a correctional
official, Mr. Buyani.
2. The
defendant is liable for the costs of the action.
B
HARTLE
JUDGE
OF THE HIGH COURT
DATES
OF HEARING
9
November 2023 & 6 & 7 February 2024
DATE
OF JUDGMENT
22
February 2024
Appearances:
For
the plaintiff:
Ms.
T Mabuza instructed by S. Magobiane Attorneys Inc., East London
(ref. Mr. Magobiane).
For
the defendant:
Mr.
M. Mayekiso instructed by the State Attorney, East London (ref.
Ms. Isaacs).
[1]
It is to be noted that the defendant failed to comply with a
directive I issued during the conduct of the trial to bring the
original records to court.
[2]
What
was put to the plaintiff under cross examination in this respect was
patently inconsistent with the defendant’s pleaded
case.