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[2024] ZALMPPHC 193
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Mokoele and Another v Minister of Police and Another (7023/2020) [2024] ZALMPPHC 193 (19 November 2024)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO
DIVISION, POLOKWANE)
CASE
NO: 7023/2020
(1)
REPORTABLE: YES/NO
(2)
OF INTEREST TO THE JUDGES: YES/NO
(3)
REVISED: YES/NO
SIGNATURE:
Naude-Odendaal J
DATE:
19/11/2024
In
the matter between
JACOB
SELAELO MOKOELE & ANOTHER PLAINTIFF
and
MINISTER
OF POLICE
1
st
DEFENDANT
MINISTER
OF DEFENCE
2
nd
DEFENDANT
JUDGMENT
NAUDE-ODENDAAL
J:
[1]
The Plaintiffs have instituted legal action against the Defendants
for damages suffered
resulting from an alleged unlawful and wrongful
assault without any provocation by members of the South African
Police Service
and members of the South African Defence Force on 18
May 2020 at Bochum.
[2]
Separate summonses were issued in respect of the Plaintiffs under
case numbers 7023/2020
and 7024/2024. The two actions were
consolidated and proceeded as one under case number 7023/2020.
[3]
The Defendants deny that the Plaintiffs' were assaulted by members of
the South African
Police Service and/or members of the South African
Defence Force.
[4]
The Plaintiffs had the onus of proving, on a balance of
probabilities, that they were
assaulted by the Defendants. The
Plaintiffs called three witnesses.
[5]
The Plaintiffs first witness was Mr. Jacob Selaelo Mokoele. He
testified that he is
a carpenter, 44 years of age and residing at La
Rochelle Farm in Bochum. He testified that on the date in question,
he left with
Morapi Nimrod Manyelo to go and fix the fence on the
farm to prevent their livestock from getting out. Once they were
finished
fixing the fence, they returned home. On their way home,
about to reach the place where they reside, they were met by a Police
van that was coming from the front. Behind the Police van emerged
another Police Van, which was also accompanied by a National Defence
Force vehicle.
[6]
He testified that the Police and the Soldiers accused them (him and
Mr. Manyelo) that
they were the ones blocking the road with objects.
Mr. Mokoele testified that he responded by saying that they were not
coming
from that road, and were coming from fixing the fence on the
farm. From there, the police officers and soldiers did not say
anything
further and just started assaulting him with their hands.
Mr. Mokoele testified that he was grabbed on the one side by the
police
and on the other side by a member of the National Defence
Force. One grabbed him by his left hand and the other by his right
hand
and they were threatening him and pulling him.
[7]
Mr. Mokoele testified that he was assaulted by open hands and fists
after he was grabbed.
The assaults by fists were directed to his rib
area and the open hands to his face. They also took of Mr. Mokoele's
belt and assaulted
him with his belt. He was hit with the buckle
portion in the face and his chest. He sustained an open wound injury
above his right
eye going down to his cheek from the assault with the
belt. He was further also assaulted on his left leg above his ankle
because
the soldier was trying to get him to the ground. He was
kicked at the back of his heel, just above the heel. He couldn't
count
how many times he was kicked or hit.
[8]
He managed to break loose and run away. They also took his cell
phone. When he got
home, his foot started swelling. He then left and
went to Hellen Frans Hospital. He was seen by a medical practitioner
and a J88
report was completed. They also reported the incident to
the Bochum Police Station.
[9]
Mr. Mokoele testified that he knows that it was members of the South
African Police
Services and National Defence Force that assaulted him
because they were wearing uniform and arrived in marked vehicles.
[10]
Mr. Mokoele also went to consult a Clinical Psychologist who compiled
a report and made recommendations
that he need Psychological
intervention in order to address the impact of the incident and
further that he need therapy in order
to treat the possible
post-trauma and preventing depression.
[11]
Under cross-examination it was put to Mr. Mokoele that he was not
assaulted by members of SAPS
and the National Defence Force, but
rather by members of the community as they were fed up with them
blocking the roads. Mr. Mokoele
denied this and maintained that he
was assaulted by members of the SAPS and National Defence Force. Mr.
Mokoele did not alter his
evldence under cross-examination and
remained consistent. He was a very good witness and made a very good
impression on the court.
He was honest and did not exaggerate in any
manner. I find him to be a very reliable witness.
[12]
The Plaintiffs called Mr. Morapi Nimrod Manyelo (2
nd
Plaintiff) as their second witness. Mr. Manyelo testified that he is
55 years old. He works as a volunteer at the local municipality
planting vegetables. He stays at La Rochelle Farm in Bochum.
[13]
He testified that on the 18
th
of May 2020, he went to fix
the fence at the Farm at Madibeng's side. He was in the company of
Mr. Mokoele. When they finished
fixing the fence on their way home,
whilst walking on the road, a police van emerged from the front and
another at the back. There
was also a Hippo vehicle from SANDF. The
vehicles were branded in the Police branding and had the police
emblem on. He could identify
the vehicles as being from Senwabarwana
Police Station. The SANDF Hippo also had the SANDF branding and
emblem on it.
[14]
According to Mr. Manyelo, the soldiers and police officers asked them
why they blocked the road
whereto they responded that they came from
fixing the fence. Police Officers and Soldiers summarily started
assaulting them and
said that they were lying.
[15]
When asked how he was assaulted, he testified that one of the
perpetrators took off Mr. Mokoele's
belt and assaulted him with the
buckle of the belt over the head. Others were kicking him in the ribs
and others were kicking him
on his legs and on his thighs from behind
until he fell on the ground. He sustained and open wound injury over
the middle of his
head and across his right eye with the belt. He
further sustained injuries to his hands as he used his hands to block
the blows
by the belt.
[16]
Mr. Manyelo further testified that he was kicked in his ribs and
somebody stepped/stumped on
his back whilst he was lying down. He
says he was kicked as if he was a ball. He sustained a broken rib at
his left side. He coughed
blood due to the injuries to his back and
chest.
[17]
Mr. Manyelo testified that he went to Hellen Frans Hospital where he
was treated and a J88 was
completed. He also opened a case against
the assaulters at the police station. He managed to identify two of
the people who assaulted
him. One is called Machete and the other is
called Rametsi. They are both working at the police station where he
went to open a
case.
[18]
Under cross-examination Mr. Manyelo testified that there were 6
police officers who assaulted
them and 3 National Defence Force
members. After the assault another police officer came and assisted
them. According to Mr. Manyelo,
this police officer rescued him. He
picked him up and took him to Mr. Ramabalala. According to Mr.
Manyelo he could not walk properly
for almost 2 months. Mr. Manyelo
also went to consult a private clinical psychologist. He went only
once and never went back again.
[19]
It was during the Covid-19 Pandemic and Mr. Manyelo was told to
return to hospital only on the
following day as the X-Ray Machine was
not functioning properly. On 19 May 2020, he was told to return on
the 2
nd
of June 2020. He was then admitted in hospital
until the 4
th
of June 2020. He confirms that he was only
admitted approximately 14 days later as he was told that the Hospital
staff was busy
with Covid-19 patients.
[20]
The Plaintiffs' called Ms. Lerato Madileng, a clinical psychologist
as their third witness. She
testified that she examined Mr. Mokoele
on the 23
rd
of June 2020 in relation to an incident that
occurred on 18 May 2020. She diagnosed him with the following
symptoms following the
incident:-
20.1
Symptoms of anxiety;
20.2
Symptoms of depression;
20.3
Frequent anger outbursts;
20.4
Developing intense mistrust of law enforcement officials.
[21]
Ms. Madileng recommended that considering the psychological
functioning of Mr. Mokoele post the
incident, he might need
psychological intervention in order to address the impact of the
incident. Sessions will be estimated within
15 sessions depending on
his adjustment. Further, that Mr. Mokoele might also need a
psychiatrist in order to treat the possible
post-trauma and
presenting depression. According to her, Mr. Mokoele will also need
frequent sessions with his medical practitioner
to avoid
over-the-counter medication.
[22]
Ms. Madileng testified under cross-examination that in the absence of
the intervention, Mr. Mokoele
might have anger outbursts and suffer
from anxiety when he sees people in uniform (police and soldiers).
These people were referred
to by her as flight and fight risk people.
She also stated under cross-examination that if he doesn't consult a
medical practitioner
frequently, he might become addicted to over
the-counter medication.
[23]
The Plaintiffs closed their case. The Defendants called two
witnesses. Sergeant Matsheta and
Sergeant Semone. Sergeant
Matshete testified that he is a police officer stationed at
Senwabarwana Police Station. He has
been employed by SAPS for 18
years, 3 months and 19 days. On the 18
th
of May 2020 he
was officially on duty with full Police Uniform. He was tasked to
attend to Covid-19 operations.
[24]
Sgt. Matsheta testified that he was at Silvermyn Village patrolling
since there were protests
in the Village. They used on of the roads
to access the Village. He was with Warrant Officer Ramela, using a
closed bakkie marked
with the Police emblems. Warrant Officer Ramela
was his crew. When they left the Village, they decided to use a
different road
to the one they used when going to that Village. They
used the road which came from Silvermyn going to Laroshell Village.
[25]
According to Sgt. Matsheta there were 4 (four) closed Police Vans and
2 (two) defence force motor
vehicles. There was a truck called a
Casper and a 4x4 van used for medical assistance. His vehicle was the
last vehicle in the
convoy.
[26]
When he arrived in the village, he saw the community members were
gathered. He also saw a male
who had long dreadlocks and who was
sitting on the ground. He testified that he and W/O Ramela alighted
from the vehicles because
they realized that the convoy of Police and
Defence Force vehicles were stationary for a long time. Their route
was blocked by
logs on the road. There was one particular big log the
soldiers were trying to remove.
[27]
Sgt. Matsheta testified that he saw the community members were
arguing with Mr. Manyelo.
It was just verbal. They did
not assault him. The community members were saying that Mr. Manyelo
was acting like he is the
leader of the community and now they found
him, so he can't continue with his behaviour. Sgt. Matsheta testified
that he then grabbed
Mr.Manyelo by the hand and put him in the Police
Van because he saw the community getting closer to him and it looked
like they
wanted to attack him. Sgt. Matsheta and W/O Ramela took Mr.
Manyelo to a bus shelter and dropped him off there. According to Sgt.
Matsheta, Mr. Manyelo was pale and had dreadlocks covering his face,
so he could not observe if anything was wrong with him.
[28]
Sgt. Matsheta testified under cross-examination that he never saw Mr.
Manyelo being assaulted.
He was not assaulted by community members
and he did not assault him either. Mr. Manyelo was only insulted by
name calling by the
community members. He only saw that he was pale
and had long dreadlocks covering his face. He was seated on the
ground on his buttocks
when they found him.
[29]
The Defendant's second witness was Warrant Officer Makwena Jerry
Senono. He is a police officer
stationed at Senwabarwa Police
Station. He has been in the SAPS for 8 years. On the 18
th
of May 2020 he was on duty doing crime prevention and patrolling at
Silvermyn. They were patrolling together with members of the
South
African National Defence Force. After patrolling Silvermyn, they went
back to the police station. They used the road that
passes Larochelle
Village. At Larochelle village was a lot of problems. The
road was blocked with logs.
They stopped and removed the
logs as they continued on the road.
[30]
W/O Senono testified that they were approximately 5 (Five) vehicles
in the convoy. Two from SANDF
and approximately three or four from
SAPS. He testified that when they arrived at Larochelle Village, they
came across two males.
They were just walking on the road. One of the
vehicles stopped and a member from SANDF (South African National
Defence Force)
approached them. One of the men fled and ran away.
Other members of the SANDF remained with the other male that remained
behind.
[31]
He then joined in with the soldiers and chased after the one that
fled because he was going towards
the direction of the mountains. It
took some time to find him. When they returned with him to the
village, they found members of
the community have gathered, together
with the soldiers and police officers who remained behind with the
one male person.
[32]
The members of the community were making some noise saying they think
they are the bosses in
the Village. While the community members were
throwing insults, he wanted to know where the person who was left
behind was and
they pointed at the person who was placed in the
Police Van. W/O Semono then went to the police van and saw a person
with dreadlocks.
He did not see anyone assaulting him.
[33]
After the testimony of W/O Senono, the Defendants closed their case.
The common cause facts are
that the members of the South African
Police Services and South African National Defence Force were present
on the scene on the
day in question. Mr. Mokoele did run away from
the scene. Mr. Manyelo was present at the scene and was put in the
Police Van. Both
Mr. Mokoele and Mr. Manyelo were injured as per the
J88 reports.
[34]
As a starting point, to succeed, the litigant who bears the onus of
proof in a civil trial should
satisfy the court on a preponderance of
probabilities that his or her version is true and accurate and
therefore is acceptable,
and that the other version advanced by the
defendant is false or mistaken and falls to be rejected. In deciding
whether the evidence
is true or not, the court will weigh up and test
the plaintiff's allegations against the general probabilities. (See
Baring Eiendomme Bpk v Roux 2001 (A) All SA 399 (SCA))
[35]
In
National Employers' General Insurance Co Ltd v Jagers,
1984 (4)
SA 437
(ECD) at 440D-441A
, the court set out the correct approach
to be adopted in analysing and assessing evidence in a civil case as
follows:
"It seems to me,
with respect, that in any civil case, as in any criminal case, the
onus can ordinarily only be discharged
by adducing credible evidence
to support the case of the party on whom the onus rests. In a civil
case the onus is obviously not
as heavy as it is in a criminal case,
but nevertheless where the onus rests on the plaintiff as in the
present case, and where
there are two mutually destructive stories,
he can only succeed if he satisfies 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 than 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."
This view seems to me
to be in general accordance with the views expressed by
COETZEE J
in
Koster Ko-operatiewe Landboumaatskappy Bpk v Suid
Afrikaanse Spoorwee en Hawens
1974 (4) SA 420
(W) at 426 - 7 and
African Eagle Assurance Co Ltd v Gainer 1980 (2) 234 (W):
"I would merely
stress however that when in such circumstances one talks about a
plaintiff having discharged the onus which
rested upon him on a
balance of probabilities that means that he was telling the truth and
that his version was therefore acceptable.
It does not seem to me to
be desirable for a Court first to consider the question of the
credibility of the witnesses as the trial
Judge did in the present
case, and then, having concluded that enquiry, to consider the
probabilities of the case,
as though the two aspects
constitute separate fields of enquiry. In fact, as I have pointed
out, it is only where a consideration
of the probabilities fails to
indicate where the truth probably lies, that recourse is had to an
estimate of relative credibility
apart from the probabilities.""
(See
Minister of Police v Heleni (CA4/2022) [2023] ZAECGHC 43 (11
May 2023)
.
[36]
In
Stellenbosch Farmers' Winery Group Ltd & Another v Martell
& Cie SA & Others
[2002] ZASCA 98
(6 September 2002)
the
Supreme Court of Appeal also observed what it fell to the trial court
to do in a civil matter when there are two irreconcilable
versions
and so too on a number of peripheral areas of dispute which it
reckoned could have a bearing on the probabilities:
"The technique
generally employed by courts in resolving factual disputes of this
nature may conveniently be summarised as
follows. To come to a
conclusion on the disputed issues a court must make findings on (a)
the credibility of the various factual
witnesses; (b) their
reliability; and (c) the probabilities. As to (a), the court's
finding on the credibility of a particular
witness will depend on its
impression about the veracity of the witness. That in turn will
depend on a variety of subsidiary factors,
not necessarily in order
of importance, such as (i) the witness's candour and demeanour in the
witness-box, (ii) his bias, latent
and blatant, (iii) internal
contradictions in his evidence, (iv) external contradictions with
what was pleaded or put on his behalf,
or with established fact or
with his own extracurial statements or actions, (v) the probability
or improbability of particular
aspects of his version, (vi) the
calibre and cogency of his performance compared to that of other
witnesses testifying about the
same incident or events. As to (b), a
witness's reliability will depend, apart from the factors mentioned
under (a)(ii), (iv) and
(v) above, on (i) the opportunities he had to
experience or observe the event in question and (ii) the quality,
integrity and independence
of his recall thereof. As to (c), this
necessitates an analysis and evaluation of the probability or
improbability of each party's
version on each of the disputed issues.
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. The hard case, which
will doubtless
be the rare one, occurs when a court's credibility
findings compel it in one direction and its evaluation of the general
probabilities
in another. The more convincing the former, the less
convincing will be the latter. But when all factors are equipoised
probabilities
prevail."
[37]
In the present matter, the Defendants simply denied that the
Plaintiffs' were assaulted by them
and stated in their plea that they
were assaulted by community members. The Defendants however did not
lead any evidence as to
the assault on the Plaintiffs' by community
members. Both the Defendants' witnesses testified that they did not
see any assault
and the community members simply verbally insulted
the Plaintiffs. There was no evidence to rebut the Plaintiffs'
versions that
they were assaulted by members of the South African
Police Services and members of the National Defence Force and in the
assault
sustained the injuries as they did and as reflected on the
respective J88's.
[38]
I find it highly unlikely that no police officer or soldier from the
National Defence Force saw
any assault on the Plaintiffs' or has any
knowledge thereof. I find it further highly unlikely that Mr. Mokoele
will simply flea
into the mountains if he was not under threat
physically or otherwise. I further find it highly unlikely that the
Plaintiffs' sustained
the open wounds to the areas above their eyes
down to their cheeks and Mr. Manyelo to his head by the community
assaulting them,
to mention only these very visible and bleeding
injuries, in the presence of the police and soldiers. According to
the evidence
of W/O Senono, they came across the two Plaintiffs' on
the road as they were still approaching the village. They were just
walking
on the road. The police officers and soldiers therefore
reached the two Plaintiffs before the community members could as they
were
still on their way to the village.
[39]
Having had regard to a conspectus of all the evidence in order to get
to a common baseline or
to establish the more plausibly accepted
version by an analysis and evaluation of the probabilities or
improbabilities of each
party's version on each of the disputed
issues, I find the Plaintiffs' version to be more plausible and
acceptable.
[40]
The Plaintiffs had to prove in order to succeed, firstly, regarding
the assault, they had to
establish the physical interference (and
verbal abuse) alleged, since this was denied. An established
interference would be prima
facie wrongful and implies an intention
to injure even if committed during the course of an arrest performed
by a police officer
pursuant to the exercise of a discretion to
arrest. In the present matter, both the Plaintiffs pleaded that they
were assaulted
physically, they testified to that effect and
submitted J88's as proof of their injuries sustained during the
assault. The Defendants
did not lead any evidence to show the
contrary or to rebut what was alleged and proved by the Plaintiffs.
Although not part of
their pleaded case, it would have been for the
defendants to allege and prove a lack of intention to injure and or
justification
for the physical violation. However, in the present
instance, the Plaintiffs were summarily assaulted and injured,
without any
justification and not even in the process of resisting
arrest as there was no arrest affected on either of them or even an
attempt
to arrest.
[41]
In my view, the Plaintiffs therefore managed to prove on a balance of
probabilities that they
were indeed unlawfully and wrongfully
assaulted by members of the South African Police Services, as well as
members of the South
African National Defence Force and that they
sustained the injuries alleged in the particulars of claim. In the
result the action
on merits stands to succeed.
[42]
This then brings me to the question of quantum. The trial proceeded
on both merits and
quantum
. The parties submitted in closing
argument heads of argument on merits, but no argument was made on the
quantum
. The Plaintiffs claimed the payment of R1500 000.00
(One Million Five Hundred Thousand Rand) each, together with interest
on the
aforesaid amount at a rate of 10.25% per annum from date of
mora to date of judgment. In my view, it is necessary for the parties
to make full submissions and provide argument on the question of
quantum
as well. In the result, the question of quantum should
be postponed sine die.
[43]
As a general rule, costs follow the result. There is no reason to
deviate in the present matter
from the general rule.
ORDER:
[44]
In the result, I therefore make the following order:-
1.
The 1
st
and 2
nd
Defendants are 100% liable for
the 1
st
and 2
nd
Plaintiffs' proven or agreed
damages, jointly and severally, the one to pay the other to be
absolved.
2.
The question of
quantum
is postponed
sine die
in order
for Heads of Argument to be filed by the Plaintiffs' and the
Defendants' within 20 days from date of this judgment.
3.
The 1
st
and 2
nd
Defendants are ordered to pay
the 1
st
and 2
nd
Plaintiffs' costs of suit,
jointly and severally, the one to pay, the other to be absolved.
M.
NAUDE-ODENDAAL
JUDGE
OF THE HIGH COURT,
LIMPOPO
DIVISION,
POLOKWANE
APPEARANCES:
HEARD
ON
22 - 23 APRIL 2024
HEADS
OF ARGUMENT FILED
23 MAY 2024
JUDGMENT
DELIVERED ON
19 NOVEMBER 2024.
This
judgment electronically by was handed down circulation to the
parties' representatives by email. The date and time for hand-down
of
the judgment is deemed to be
19 NOVEMBER 2024 at 10h00
FOR
THE PLAINTIF
Mr. L. Molepo
INSTRUCTED
BY
L Molepo Inc. Attorneys
Polokwane
lobangmolepo@gmail.com
FOR
THE DEFENDANTS
Adv. R. Kwanaite
INSTRUCTED
BY
The State Attorney: Polokwane
reshoketshwe@gmail.com
Kmatlala@justice.gov.za
Kselowa@justice.gov.za