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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG HIGH COURT DIVISION, PRETORIA
Case Number : 33413/2015
(1) REPORTABLE: YES / NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED.
DATE : 21/01/2025
SIGNATURE
In the matter between:
M[...] T[...] Plaintiff
and
MINISTER OF POLICE Defendant
___________________________________________________________________
JUDGEMENT
___________________________________________________________________
MNGQIBISA -THUSI J
[1] The plaintiff, Mr T[...] M[...] , has instituted an action for damages due to his
alleged emotional shock and psychological trauma suffered after he allegedly
witnessed the alleged assault and humiliation of his father, Mr V[...] M[...] M[...]
(“Mr M[...] ”), by members of the South African Police Service (SAPS), on 25
October 2012. At the time of the occurrence of the incident in question, the
plaintiff was about six years old.
[2] From the pleadings it appears that at the time the plaintiff’s claim was instituted,
he was still a minor and Mr M[...] brought claims against the defendant (as first
defendant) and the National Director of Public Prosecutions (“the NDPP”) , also
on behalf of the plaintiff.
[3] Consequently, t wo court orders were granted on 30 July 2018 and 4 February
2020, respectively, in which Mr M[...] ’s claims against the defendant and the
NDPP were settled. It is apposite at this stage to set out the provisions of the
two court orders.
[4] The court order , by agreement, of 30 July 2018 reads in part as follows:
“1.
The First Defendant is liable for all the Plaintiff’s damage pursuant to the
arrest on 25 October 2012 and the detention up until date of first court
appearance on 29 October 2012.
2.
Any and all liability of the First and Second defendant pursuant to
detention and incarceration from 29 October 2012 until 26 November 2012
as well as any and all liability in respect of assault and malicious
prosecution is postponed sine die .”
[5] The second order granted on 4 February 2020 reads in part as follows:
“1.
Without admitting any liability the First Defendant shall pay the Plaintiff an
amount of R350’000.00 (Three Hundred and Fifty Thousand Rand) in full
and final settlement of Plaintiff’s claim in respect of the cause of action as
pleaded by the Plaintiff.
…
3.
The claim of the Plaintiff against the Second Defendant is abandoned with
no order as to costs.”
[6] In its plea, the defendant asserts that the arrest of Mr M[...] was lawful but denies
the claims of assault and the purported humiliation experienced by the plaintiff in
witnessing the alleged assault on his father, as the plaintiff was not present
during the police's presence at his grandparents' homestead with his father.
[7] During the hearing of these proceedings, the parties agreed that the sole issue to
be determined is reflected in paragraph 6 of the minutes (dated 8 December
2020) from their pre -trial meeting on 23 April 2020,, which states as follows :
“The presiding officer will be called upon to decide whether an incident
occurred, in the presence of the minor, during wh ich, on 25 October 2012
at the plaintiff and minor’s f amilial place of residence the plaintiff was
severely assaulted and/or humiliated and/or a unlawfully arrested, in the
presence of the minor, by at least two uniformed members of the South
African Police S ervices, whose full and further particulars are unknown to
the plaintiff. The parties further record that any further aspect pertaining to
this matter should be postponed sine die .
[8] The plaintiff, in his amended particulars of claim, asserted that he had emotional
shock and psychological trauma due to the unlawful arrest and assault of his
father.
[9] The plaintiff’s evidence is as follows. On 25 October 2012, while playing football
with friends in an open field near his residence, he saw his father arriving at their
home in Mavhela, accompanied by police officers, some in civilian attire and
others in uniform. At that moment, his father was restrained with handcuffs while
the police officers were dragging him towards the pit toilet in the yard, shouting at
him. He abandoned his play and proceeded to the yard, positioning himself at a
footpath, around five paces from the pit toilet. He witnessed the police assaulting
his father but could not recall the number of times his father was kicked. At the
pit toilet, he observed the officers excavating a hole at the back of the pit toilet
with a tool he described as a 'gwala,' a type of steel implement employed for
digging in the earth. The plaintiff testified that following the excavation of the pit
which was partially filled with excrement and other refuse, his father was ordered
to enter it. When his father was ordered to enter the pit -toilet hole, one of his
arms was uncuffed. The father entered the pit hole feet first. He testified that
during this procedure, the police officers persisted in shouting at his father. Upon
entering the hole, he saw his father using a shovel to excavate excrement and
other waste outside the hole. He said that upon witnessing his father's actions,
he was crying, shocked and terrified. The plaintiff further testified that while his
father was excavating, there were members of the community both inside and
outside the yard observing the event. He testified that while the witnesses to the
occurrence remained silent, other learners at school discussed the events that
transpired at his residence on the day in question and remarked that his father
would ultimately face sentencing by a court. The plaintiff stated that upon
recollection of the occurrence, he experienced feelings of distress and fear, and
that he becomes anxious or disturbed whenever he encounters a police officer.
The plaintiff further testified that when the police and his father arrived at his
residence, his paternal grandmother was present, although she left briefly and
returned later.
[10] Under cross examination , the plaintiff conceded that his father was not arres ted
at home but somewhere else. He denied telling a certain clinical psychologist
that he had consulted that when the police came with his father, they had hit him
with a sjambok , as reflected in the p sychologist ’s report. He, however, added
that when the police were pulling and kicking his father, his father had fallen to
the ground and the police refused to assist him to get up. He further testified that
after he left his paternal grandparents’ home two years after the incident, to go
and live with his maternal grandparents, he was no longer scared of police
officers who he believed could come back to his paternal grandparents ’
homestead.
[11] The next witness called to testify on behalf of the plaintiff was Sergeant
Divhuwani Sonnyboy Makgw athana who is stationed at the L ocal Criminal
Research Centre in M akhado . Sgt Makgwathana testified that on the day in
question he was requested by a colleague to join them at a pointing -out scene for
the purposes of taking photos of the process of recovering a firearm. On arrival
at the scene, he found a number of police officers, both in uniform and in civilian
clothes and a suspect. He confirmed that he was not part of the investigating
team. He testified that there were also many people who had gathered there.
Sgt Makgwathana testified that he saw when the suspect was ordered by one of
the police officers to climb into the opened pit-toilet hole. According to Sgt
Makgwathana the suspect went into the p it-toilet hole with hi whole body and was
ordered to take out fa eces inside the hole in search of a firearm. He took photos
of the whole process. He testified that although the photos were later
downloaded, the y were , however, never used as no firearm was found or
recovered inside the hole of the pit -toilet. When he left the scene, some police
officers had remained. Sgt Makgwathana was not cross examined.
[12] The last witness called on behalf of the plaintiff was Mrs S[...] P[...] M[...] , the
plaintiff's paternal grandmother. Mrs M[...] testified that upon the arrival of the
police with her son, she left the residence and proceeded to her sister's home.
Mrs M[...] refuted, as indicated in her police statement, that she had granted the
police permission to excavate a hole at the pit toilet.
[13] After the plaintiff close d his case, c ounsel for the defendant applied for absolution
from the instance. Counsel submitted that the plaintiff failed to make out a prima
facie case with regard to the issues as set out in paragraph 6 of the parties’ pre-
trial minute referred to in paragraph 7 above. Counsel argued that the plaintiff
failed to make out a prima facie case that , as a result of the incident relating to
his father, he has suffered emotional shock and psychological trauma or that he
was present when the police came with his father to his paternal grandparents’
residence. Counsel urged the court to take a dee m view of the fact that despite
being present in court during these proceedings , Mr M[...] failed to testify about
the humiliation he suffered as a result of the alleged treatment by the police
officers who accompanied him on the relevant day to his residence .
[14] On behalf of the plaintiff , counsel submitted that in view of the settlement
agreement encapsulated in the court order dated 30 July 2018, the defendant
conceded that there was an unlawful arrest and detention of Mr M[...] . It was
further submitted that it was not the humiliati on as experience d by Mr M[...] which
was in issue, but the humiliation and mental trauma experienced by the plaintiff
at observing how his father was treated by the police officers on the relevant day.
[15] After argument on the issue of whether absolution from the in stance should be
granted or not and h aving considered the plaintiff’s evidence and the
submissions made, absolution from the instance was refused .
[16] The test for absolution from the instance was formulated in Claude Neon Lights
(SA) Ltd v Daniel 1976 (4) SA 403 (AD) at 409 G -H as follows :
“…when absolution from the instance is sought at the close of plaintiff’s
case, the test to be applied is not whether the evidence led by plaintiff
establishes what would finally be required to be established, but whether
there is evidence upon which a Court, applying its mind reasonably to
such evidence, could or might (not should, nor ought to) find for the
plaintiff. ( Gascoyne v Paul and Hunter 1917 TPD 170 at 173; Ruto Flour
Mills (Pty) Ltd v Adelson (2) 1958 (4) SA 307 (T)).”
[17] In elucidating of the test for absolution from the instance as set out in the Claude
Neon matter (above), the court in Gordon Lloyd Page Associates v Rivera and
Ano [2000] 4 All SA 211 (AD) held at 243B that:
“This implies that a plaintiff has to make out a prima facie case - in the
sense that there is evidence relating to all the elements of the claim – to
survive the absolution because without such evidence no court could find
for the plaintiff ( Marine & Trade Co Ltd v Van der Schyff 1972 (1) SA 26
(A) at 37G -38A; Schmidt Bewysreg 4th ed at 91 -2). As far as inferences
from the evidence are concerned, the inference relied upon by the plaintiff
must be a reasonable one, not the only reasonable one (Schmidt at 93).
The test has from time to time been formulated in different terms,
especially it has been said that the court must consider whether there is
evidence upon which a reasonable man might find for the plaintiff”
(Gascoyne (loc cit )) – a test which has its origin in jury trials when the
“reasonable man” was a reasonable member of the jury ( Ruto Flour Mills ).
Such a formulation tends to cloud the issue. The court ought not to be
concerned with what someone else might think; it should rather be
concerned with its own judgment and not that of another “reasonable”
person or court. Having said this, absolution at the end of the plaintiff’s
case, in the ordinary course of events, will nevertheless be sparingly
granted but when the occasion arises, a court should order it in the
interests of justice .”
[18] Considering the evidence presented concerning the events surrounding Mr.
M[...] 's arrival at his residence on 25 October 2012 and the treatment he received
from the police officers in charge, I conclude d that there exists sufficient evidence
for a reasonable court to rule in favour of the plaintiff regarding his claim. The
evidence presented by the plaintiff regarding the events of the pertinent day was
largely supported by Sgt Makgwathana. I reaffirm my previous decision denying
absolution from the instance.
[19] The defendant closed its case without calling any witnesses.
[20] As agreed between the parties, the matter has to be assessed in the context of
the issues as set out in paragraph 6 of the minu tes of the pre -trial conference
which are, mainly:
20.1 whether an incident occurred in the presence of the plaintiff ;
20.2 whether Mr M[...] was severely assaulted ; and/or
20.3 humiliated ; and/or
20.4 unlawfully arrested, in the presence of the plaintiff .
[21] The plaintiff's testimony as an eyewitness to the events that transpired at the
home of her paternal grandparents on 25 October 2012, when police officers
arrived at Mr. M[...] 's residence, accompanied by his father who was handcuffed,
is in brief as follows.
[22] Upon the police officers' arrival at his property, they forcibly escorted his
shackled father through the yard towards a pit toilet. An officer kicked Mr M[...] ,
resulting in his collapse to the ground. The police excavated a hole behind the
pit toilet and instructed Mr M[...] to enter the hole and extract excrement and
other waste with a shovel. During these occurrences, numerous community
members, both within and outside the yard, were there to view the proceedings,
alongside the plaintiff and Sgt Makgwathana. There is no evidence to refute the
aforementioned evidence. I am of the view that the plaintiff and Sgt
Makgwathana's testimony was credible, plausible, and delivered in a coherent
and honest manner. The plaintiff was willing to concede that his father's unlawful
arrest did not take place in his presence. The plaintiff remained consistent, even
during cross -examination. The defendant did not provide any evidence to refute
the plaintiff's account, which was largely supported by Sgt Makgwathana's
testimony, regarding the events that occurred at the plaintiff's paternal
grandparents' home on 25 October 2012, when the police arrived with his father.
[23] I am convinced that the plaintiff has, on a balance of probability, established that
his father was severely assaulted in his presence, having been kicked by a police
officer and subsequently` falling to the ground. The physical attack was further
exacerbated by his father being compelled to enter a pit filled with excrement.
Moreover, I am convinced that the plaintiff has established that the assault on his
father, witnessed by both him and community members, resulted in the
humiliation of his father, both in his son's perception and in the perception of the
community members present during the incident.
[24] In the result , an order is granted in terms of the proposed draft order marked "X."
NP MNGQIBISA -THUSI
Judge of the High Court
Date of hearing: 04 September 2024
Date of judgment: 21 January 2025
Appearances
For plaintiff: Adv C Van Jaarsveld (instructed by Gildenhuys Malatji Inc. Attorneys)
For defendant: Adv P Nel (instructed by the State Attorney, Pretoria )