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[2024] ZAECBHC 37
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Banzana v Minister of Police (480/2021) [2024] ZAECBHC 37 (28 June 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE LOCAL
DIVISION, BHISHO)
NOT REPORTABLE
CASE NO: 480/2021
In the matter between
SOLETHU
BANZANA
Plaintiff
and
MINISTER OF
POLICE
Defendant
JUDGMENT
HARTLE J
[1]
The Plaintiff who
operates
a licenced tavern at Masonwabe Township in Ngcobo
under
the moniker of “
Sox Tavern
”,
claims damages by way of action for the claimed unlawful closure of
his business by members of the South African Police
Service (“
SAPS
”)
on 23 April 2021 (“
Claim A
”),
as well as for the unlawful assault and arrest of him by members of
SAPS on 24 April 2021 (“
Claim B
”).
[2]
The defendant denied the three damage
causing incidents.
[3]
Regarding claim A he pleaded that a closure
had ensued lawfully on a different date, namely 25 April 2021, and at
a time “
much
later
in the evening than alleged by the plaintiff
”
(that
is at “
around 20:30”
)
for a “
valid reason
”.
He alleged in this regard that there was a reasonable suspicion
entertained by the members of the South African police
who lawfully
closed the tavern that the plaintiff was selling alcohol outside of
the permitted operating times in terms of his
liquor licence.
Alternatively, so the justification went, patrons of the business in
the presence of SAPS members were drinking
at the tavern outside of
operating hours and advised the police that they knock on the door
and the alcohol is sold to them via
the window. Hence, so the
defendant explicated, the plaintiff was trading outside of normal
operating hours justifying the closure
of his tavern.
[4]
Any assault on the plaintiff was
categorically denied.
[5]
As for the claimed unlawful arrest, this
too was denied. The defendant however pleaded the following
explanation:
“
5.2
In amplification of this denial, the
defendant avers that the Plaintiff was taken to the Police Station
not to detain him but for
him to sign a warning form J534 as he was
in contravention of the Eastern Cape
Liquor Act 10 of 2003
.
5.3
The Defendant further pleads that the Plaintiff was taken to the
police station as there
were a lot of patrons at the tavern and the
Police did not want to cause injury to members of the public or
property such as vehicles,
and decided to conclude the business of
concluding the warning statement at the police station.
5.4
The Plaintiff was taken to the police station and not detained in
custody and was released
after a few minutes, between 02h00 to 02h35,
after signing J534 form on warning/notice to appear in court on a
certain date. The
plaintiff was thereafter free to go.
5.5
With regards to Claim A as detailed in the particulars of claim under
paragraph 6, the Defendant
denies liability for any alleged damages
suffered by the Plaintiff and the Plaintiff is put to the proof
thereof.
5.6
There were no visible injuries on the Plaintiff and the Plaintiff did
not complain of any
injuries.
5.7
If there were any injuries complained of, the Plaintiff would have
been taken to hospital.
5.8
Furthermore, should the court find that the Plaintiff was indeed
arrested, it is pleaded
that such arrest was lawful and that the
members of the SAPS entertained a reasonable suspicion that the
Plaintiff committed a
Schedule 1 offence in terms of Section 40 (1)
(b) of the Criminal Procedure Act 40 of 1977. (See paragraph 2.2
supra
)
5.9
Alternatively, the Plaintiff committed an offence in the presence of
the members of the
South African Police Services in terms of Section
40 (1)(a) of the Criminal Procedure Act 40 of 1977. (See paragraph
2.3
supra
)”
[6]
There is no question that the claims
attract vicarious liability for the defendant in principle if the
alleged unlawful conduct
is established in the plaintiff’s
favour.
[7]
At the commencement of the trial, I issued
an order separating quantum from merits and the parties adduced
evidence regarding the
issue of liability only.
[8]
Apart from the oral evidence led, a common
bundle of discovered documents (Exhibit “A”) was
received into evidence
on the customary basis that the documents are
what they purport to be. These documents entail a special
power of attorney
in favour of the plaintiff’s attorneys to
prosecute the claim (dated as early as 28 April 2021), a J88 Medical
report in
respect of the medical examination
of
the plaintiff by a Dr. Wilson Khangelani on 26 April 2021 at 11
H 10 at the All Saint’s Hospital in Ngcobo; proof
of the
plaintiff's registration with the Eastern Cape Liquor Board to sell
liquor for consumption on and off the premises and to
conduct
business under the name of “
Sox
Tavern
” at the relevant time, a
contentious J534 Written Notice to Appear in Court issued by one
Sergeant Mzukwa in the early hours
of the morning of 25 April 2021, a
formal notice to the National Commissioner of Police of the
plaintiff’s intention to institute
the proceedings dated 3 May
2021; the acknowledgement of receipt by the defendant in respect
thereof; the contents of the docket
pertaining to the plaintiff’s
complaint of assault against unknown preparators of the assault under
Ngcobo CAS number 242/04/2021
(evidently the docket was opened on the
evening of 29 April 2021); as well as an extract from the occurrence
register of the Ngcobo
Police Station on Sunday morning 25 April
2021.
[9]
The essential entries from the
register that relate to the issue to be determined by this court
regarding whether the plaintiff
was in fact arrested concern two
consecutive entries. The first entry numbered 1667 made at 2H30
states as follows:
“
Arrest
:
Sgt Mzukwa arrested Solethu Banzana for selling liquor beyond trading
hours in contravention of section 59 (1) (a) Licences Conditions
and
COVID-19 Regulations as per SAP 14/…/04/2021,
”
and entry number 1668 made at 2H35 as follows:
“
Suspect
Released: Sergeant Mzukwa released Solethu Banzana as per J534
D322-6596 Written Notice to Appear in Court. All in
order.
”
[10]
It is not in contention that the normal
trading hours of the tavern extended from 10H00 to 24H00 each day.
[11]
The doctor who was a community service
medical officer at the time of examining the plaintiff was not
himself available to
testify at the trial. The plaintiff adduced the
testimony of Dr. Mponco in his place. She is employed at the
All Saint’s
Hospital as clinical manager and testified in this
capacity both to explain the absence of Dr. Khangelani and to confirm
the authenticity
of the J88 as a formal medical report issued (and
signed) by him consistent with the hospital’s patient file in
respect of
the plaintiff.
[12]
She could confirm the history from the
report that had ostensibly been provided by the plaintiff to Dr.
Khangelani at the time of
the examination, namely that he had been
assaulted and had sustained injuries to both his eyes.
[13]
She read out his clinical findings
which
are to the following effect: “
Facial
exam:- (L) eye redness; Crying spontaneously. Tender lids, (R) eye
also red, non-tender. (A) Swollen lids.
”
Under paragraph K dealing with “
Conclusions
”
that takes account of history and all findings, both positive and
negative, the examining doctor motivated his conclusion
with the
following reasons: “
Assault; Red
eyes and swollen lids.
”
[14]
She readily acknowledged that the symptoms
noted by the doctor could have been caused by something other than an
assault. For obvious
reasons she could not be drawn on the assertion
put to her under cross examination that the defendant’s members
had not assaulted
the plaintiff.
[15]
The plaintiff in his testimony related the
events firstly of the night of 23 April 2021 between 20H00 to 21H00.
[16]
As he was coming from his house
which adjoins his business premises he says he encountered a group of
police on the tavern’s
premises. They were searching patrons
and ordering them outside.
[17]
He was asked about the sanitisation of
patrons (which he vouched for) and was also requested to produce his
trading licence, which
he did. He was told without any reason having
been provided that he should immediately close the tavern and indeed
was warned that
he should “
never
open it again
” and that if he did
so the police would return. He was surprised and inconvenienced by
the instruction as he was perfectly
within his right to operate until
midnight.
[18]
The only member known to him among the
police contingent that night was one Mbikwana who clarified at his
asking the reason for
the abrupt closure that he should enquire the
following day at the local police station.
[19]
He wasted his time there the following
morning (the 24
th
)
from 10H00 until 12H00 trying to ascertain the position but to
no avail. One of the officers told him not to quarrel with
the police
and suggested that he go back and open his tavern. He followed this
advice and carried on business as usual until midnight.
[20]
He clarified that at closing time he would
often have stragglers, as he did that night. He would warn them
that closing time
was coming and suggest to them that if they have
not finished their drinks in time they can go with them off premises
as his licence
permits. Some customers obey but others remain and
enjoy themselves in the yard until their drinks are finished which
they prefer
to do rather than being arrested by the police for
drinking on the way to their homes.
[21]
He closed his tavern officially for the
night and went to bed but was roused around 00H30 (on the 25
th
)
by his daughter and niece who told him that the police were outside
looking for him. He now related the details giving rise
to
Claim B.
[22]
He encountered a police officer at
the doorway of his room who asked why he had not closed the tavern.
He remonstrated
that he had. Asked what the people were outside
for he explained that they were customers from before closing time
who were finishing
their drinks because they could not leave with
them.
[23]
He was told to dress and accompany the
police officer to the police station in his vehicle. After
dressing and when approaching
his vehicle to open the door he
grumbled aloud that he was tired of their treatment of him,
referencing the unfortunate events
of the night before. This appeared
to provoke two members who assaulted him. The one slapped him
with an open hand from behind
across his eyes and the other lurched
forward to grab him. He instantly felt as if both his eyes had been
“
blacked out
”.
As they began to struggle with him the one remarked that the
plaintiff was the one who had gone to the police station
earlier to
be “
silly
”
against them. They now changed their tack and said that he should not
drive but go with the police van. He was dragged to
the Police’s
Venture van and forcefully pushed in to it.
[24]
At the police station he was made to wait
next to a container office for about an hour or so. After
challenging them to charge
him he was called to another office where
a different officer (it is common cause that this was Sergeant
Mzukwa) prevailed upon
him to sign the written notice which he
refused to do on account that he did not agree that he had traded in
contravention of his
licence conditions.
[25]
It was after 02H00 in the early hours of
the morning before they told him that he could go home. He made
the journey home
by foot over a distance of three or more kilometres.
It was difficult for him to see because his eyes were sore and
tearing.
[26]
Once at home he slept. The next day
he went to the hospital to be examined and treated (he was given
eyedrops and medicine
to drink). He was driven there by one of
his assistants from the tavern, Lwando Kamba, because it was
difficult to see out
of his eyes. When he had the J88 in hand he went
to the police station to open a case. At the Ngcobo police
station an officer
said that he was scared to open a case against his
colleagues and he was redirected to the Mthatha police station where
he attempted
the following day to lodge the complaint, driven again
by Mr. Kamba. The latter station however turned him back to
Ngcobo
on the basis that it did not have jurisdiction to entertain
the matter.
[27]
Ultimately the case was accepted. He
was informed that he would hear back once they had completed their
investigations but
was instead told that his case had been
withdrawn. This led him to see his attorneys who commenced the
action.
[28]
It was apparent from the notice that he had
been fined R2000.00 but when he followed up after the incident at the
Ngcobo magistrates
court to engage in respect of the fine, they had
no record of it.
[29]
He denied under cross examination that he
had been informed by the police that they were unable to administer
the warning other
than by his going to the police station or
that he had acquiesced in going with them because of this. He
refuted that
his having to accompany the police had anything to
do with unruly customers who were drinking in the yard or anyone’s
safety.
[30]
He refuted having been responsible for the
allegation in the pleadings that suggested that he had sustained
multiple serious bodily
injuries. To the contrary he was quite
insistent that there was really only one effective blow to his face
that had caused
his reported injury.
[31]
Mr. Kamba confirmed in his testimony that
he had been on duty at the tavern on 23 April 2021 when the police
arrived. They made
him and patrons to lie down on the floor, searched
them, and took them outside. He was present when the plaintiff
arrived
and identified himself as the owner. Later he was informed by
the plaintiff that he had been instructed to close the tavern as a
result of which he went home to sleep.
[32]
The following day he arrived at opening
time (10H00). The plaintiff was not present but he learnt from his
daughter and niece that
he had gone to the police station to make
enquiries as to when he could reopen the tavern. The plaintiff
returned later after
noon, opened the tavern, and business resumed as
normal until midnight.
[33]
When he arrived for work the next morning,
he did not see the plaintiff. He was told that he was in his
bedroom. He
went to the plaintiff’s room and noticed that
he was “
just resting on his bed
wearing a trunk pants
.” He
could see that both of his eyes were very red. On conversing
with him he learnt about the events of the
night before. Work
carried on as usual without the plaintiff but it was a slow Sunday.
[34]
On 26 April 2021 he proceeded to work
earlier than usual to check on the plaintiff’s condition.
The latter informed
him that he felt that things were difficult for
him. He added that he did not think he could even drive his car
and that
he was thinking of approaching a doctor. The witness
encouraged him to go and he himself drove the plaintiff to the All
Saint’s
Hospital where he waited while he was examined.
[35]
Under cross examination he confirmed that
the reason why the plaintiff could not drive himself to the hospital
is because he was
complaining “
of
his eyes and bright rays of the sun
”.
In fact, he had been obliged to wear sunshades so he explained.
He also complained of bodily pains.
[36]
From his own observations, and because he
knew the plaintiff well, he could say that when he saw him laying on
the bed on the Sunday,
apart from his eyes being affected, he noticed
that his face was puffy or swollen.
[37]
The Plaintiff’s daughter, Ongeziwe
Gasa, testified that she arrived at home from East London around noon
on 24 April 2021.
Her father was not there. The tavern
was closed but people were seated there on the “
stoep
”.
She learnt about the closure of the tavern the night before and that
her father had gone to the police station to make
enquiries in this
respect. He confirmed the news to her himself when he returned
home shortly afterwards and opened the tavern.
Business continued
through the day until midnight. Patrons left (although some
lingered outside to finish drinks bought before
closing) and the
family went to sleep.
[38]
Shortly after they had retired to bed
police arrived at the door of their home. She and her cousin
were asked the whereabouts
of the tavern owner. She pointed them in
the direction of the plaintiff’s bedroom where he was
sleeping. One of the
officers approached his door and knocked.
She later saw her father leaving the house with the officer going in
the direction of
the other members who were outside. They asked him
why he had not closed the tavern, which he denied he had not done.
Asked what
about the other customers who had remained there drinking,
he explained that they were probably finishing up their
drinks.
[39]
Her father was instructed to dress, fetch
his mask, and accompany them to the local police station. When
he reappeared, he
was instructed also to fetch the keys for his own
motor vehicle as he would be driving himself.
[40]
She observed from the
stoep
that when he was about to open the door of his vehicle that he was
assaulted by one of the officers who slapped him. Another
officer to his side also “
helped
”
by partaking in the assault.
[41]
She and her cousin screamed but were
rebuked by a female officer who asked why they were crying as it was
not as if their father
were about to die. She asked if the two of
them were drunk and threatened that if they continued to be “
mad
”
that she would use her pepper spray on them.
[42]
From there her father was dragged by all
the policemen uphill in the yard to the police vehicle where they
loaded him “
in a bad way
”.
[43]
By this time the straggling patrons(who
were mostly neighbours from close by) had run away.
[44]
Her father returned home around 03H00, on
foot. She noticed that his eyes were swollen, tearing and “
red
spotted
”.
[45]
She denied under cross examination that the
trailing patrons (who were only a few) had behaved in an unruly
fashion or that
they were making a noise. She also denied the
suggestion that her father had sold liquor to them after closing time
as he had gone
to sleep at the time.
[46]
Asked if she assumed that her father was
getting arrested when he was instructed to fetch his car keys, she
replied that it was
her thought that they were arresting him only at
the point they dragged him off to the police vehicle.
[47]
Despite the evidence for the plaintiff the
defendant called only a single witness in the person of Sergeant
Mzukwa who at the time
of his testimony was in the full time employ
of the Eastern Cape Liquor Board. He clarified that even at the
time of the
incident giving rise to the plaintiff’s claims he
was a provincial liquor inspector involved in special operations
involving
the police and district officers of the Board.
[48]
He claims that he went to the plaintiff’s
premises only once, which was on 25 April 2021. He could confirm
however that there
had been other operations undertaken at the time
around Ngcobo.
[49]
He related that he had received a call
around 02H00 that morning from Colonel Ngalo who requested him to
come to Sox Tavern.
When he arrived there, he found him in the
company of Colonel Sali (the Commissioner of Ngcobo police station)
and another person
who was said to be the owner of the tavern.
It is common cause that this was the plaintiff.
[50]
He was informed that the plaintiff was
selling liquor at that time. He noticed that there were many
customers in the yard.
When he questioned the plaintiff about this,
he denied that the tavern had been operating. To the contrary he said
that he had
been sleeping when the police arrived. According to him
he established from a patrons that the liquor they were drinking had
been
sold to them through the window. In challenging the plaintiff
with this information which he had elicited he sought to explain to
him that he had tried to encourage the customers to leave. He
was not satisfied with this explanation and informed him that
he was
going to give him a fine for exceeding his trading hours. Since the
customers were however unruly and were singing songs,
he claims that
he asked the plaintiff to accompany him to the police station where
he was going to issue him with this fine. They
went to the station
for him to do just that, but the plaintiff refused to sign for it
claiming that he had not been trading at
that time. The plaintiff was
given a copy and was then released to go away.
[51]
He recalled that the plaintiff had been
conveyed to the station in one of the police vehicles which he had
boarded willingly at
his request.
[52]
He never observed any injuries on the
plaintiff neither did he complain of any. Whilst denying that the
plaintiff had been arrested
at the tavern, he sought to explain that
if he had had any injuries the “
process
”
would have required that the police first take him to the doctor or
to hospital.
[53]
Asked if the plaintiff had been handcuffed
when taken to the police van, he could not recall “
well
”,
but was adamant that he had not been placed under arrest. He
insisted that he could not perform his duties at the
tavern because
the patrons outside were becoming unruly as they were singing songs.
He added that it was also dark there
as a further reason why he
needed the plaintiff to accompany him to the police station.
[54]
Asked about the entry in the occurrence
book that suggests that the plaintiff was arrested and then released,
he clarified that
it was written by the CSC Commander rather than
himself. He agreed that the purpose of the occurrence book is
to record daily
events that occur. He believed that the entry
supported his version of the events that the plaintiff had been
released shortly
after having been taken to the police station.
[55]
Under cross examination he purported to
explain that he had not taken down the name or details of the patrons
who had said that
they were buying liquor from the plaintiff after
hours because he was not intending to open any docket and neither did
he.
[56]
He was unaware that the plaintiff had his
own vehicle which he could have used to go to the police station
with. Asked if he had
seen his vehicle on the premises, he reflected
that there were more or less twenty vehicles in his yard and outside.
Put to him
that the plaintiff had clarified to his counsel that he
was not one of the officers who had come on to his premises that
night,
he offered that it was dark on his arrival there and that the
plaintiff perhaps for this reason did not “
notice
”
him there. Put to him that the plaintiff’s daughter had
mentioned the presence of a bright light at the tavern’s
premises, he countered that it did not cover the whole yard and that
he had in any event met with the Colonels Ngalo and Sali and
the
plaintiff “
aside on the dark
spot
”.
[57]
The witness could ironically also not
describe the police vehicle in which the plaintiff had been taken to
the station. Further
although he had said in his evidence in
chief that he had himself taken the plaintiff to the vehicle, he
contradicted himself by
saying that he had merely been the one to ask
the plaintiff to go with them to the police station. (In
re-examination he again
reverted to his primary version that he had
been
present
when the plaintiff was getting into the police vehicle.) He could
also not say who drove the motor vehicle that the plaintiff drove
in
or how he got back. That he placed squarely on the station
commander, Colonel Sali, to have arranged, so he explained,
since he
had to rush to Queenstown where he was sleeping
[58]
He was surprised to hear that the
plaintiff’s eyes had been injured or that he had consulted with
a doctor at the hospital.
[59]
He was vague not only in providing a
headcount of the patrons he found at the plaintiff’s place but
also in respect of the
number of police officers present on the
scene. He loosely speculated that since it was a provincial operation
“
there were many police officers
there
”.
[60]
Asked by the court why he specifically had
gone to the plaintiff’s premises he explained that he in his
capacity as provincial
liquor inspector was the “
one
at the disposal of those fines
”
and their issue. Despite this he seemed unable to convincingly
explain to the court why the notice that he had issued had
not had
the formal consequences of law in the sense that there was no control
document at the magistrates court to match its issue.
Neither could
he convincingly explain the absence of any formal paper trail
regarding the offence or the lack of an applicable
police reference
number.
[61]
He claimed that he wrote down the names of
the patrons who had vouched for the commission of the offence by the
plaintiff in a pocket
book, but this pocket book (despite the
plaintiff’s attorneys having contemporaneously issued the
formal statutory notice
to the Commissioner to commence proceedings
days after the incident) was purportedly not available and was
evidently not discovered.
He distanced himself from any
responsibility for the predicament on the premise that he was no
longer in the service of the police.
[62]
The defendant failed to adduce the evidence
of the two senior officers in charge of the operation and who were
said by Sergeant
Mzukwa himself to have been present at the scene of
the purported crime. The station commander would also have been
the last
person, on his account, to have seen the plaintiff upon
leaving the police station. The plaintiff had also identified at
least
one other police officer by name (Mbikwana) who had been
present when his business was closed on 23 April 2021 but the latter
was
not called to refute these events at least.
[63]
One would also have expected the officer
who made the official entries in the occurrence book to gainsay the
plain intimation appearing
therefrom that the plaintiff had at first
been arrested, and thereupon released, but no explanation was put up
in this regard whereas
it had been made plain by the plaintiff’s
legal representative that they would rely on this vicarious admission
in his favour
to support the fact that as far as the police were
concerned he had been placed under arrest. The entry coincidentally
accords
with the general import of the provisions of
section 56
of
the
Criminal Procedure Act, No. 51 of 1977
, which provides as follows
in this respect:
“
56
Written notice as method of securing attendance of accused in
magistrate’s court
(1) If an accused is
alleged to have committed an offence and a peace officer on
reasonable grounds believes that a magistrate’s
court, on
convicting such accused of that offence, will not impose a fine
exceeding the amount determined by the Minister
from time to
time by notice in the
Gazette
, such peace officer may,
whether or not the accused is in custody, hand to the accused a
written notice which shall—
(a)
specify
the name, the residential address and the occupation or status of the
accused;
(b)
call
upon the accused to appear at a place and on a date and at a time
specified in the written notice to answer
to a charge of having
committed the offence in question;
(c)
contain
an endorsement in terms of
section 57
that the accused may admit his
guilt in respect of the offence in question and that he may pay a
stipulated fine in respect thereof
without appearing in court; and
(d)
contain
a certificate under the hand of the peace officer that he has handed
the original of such written notice
to the accused and that he has
explained to the accused the import thereof.
(2) If the accused is
in custody, the effect of a written notice handed to him under
subsection (1) shall be that he be released
forthwith from custody.
(3) The peace officer
shall forthwith forward a duplicate original of the written notice to
the clerk of the court which has jurisdiction.
(4) The mere production
to the court of the duplicate original referred to in subsection (3)
shall be
prima facie
proof of the issue of the
original thereof to the accused and that such original was handed to
the accused.
(5) The provisions of
section 55
shall
mutatis mutandis
apply with
reference to a written notice handed to an accused under subsection
(1).” (Emphasis added)
[64]
The document that purports to have been the
official J534 is so patently defective I cannot imagine that Sergeant
Mzukwa imagined
that it would stick. The defendant adduced no
evidence to suggest that this court’s criticism of the process
through the
questions posed to a so called experienced liquor
inspector was misplaced.
[65]
Given
that no other evidence was adduced on behalf of the defendant to
counter that given on behalf of the plaintiff there is very
little
that this court is required to resolve by way of true factual
disputes according to the technique usually employed by courts
in
this regard.
[1]
[66]
Indeed, the question is whether Sergeant
Mzukwa was on the crime scene at all as he says he was (which
includes his denial on behalf
of the defendant that no assault or
arrest happened) and whether when he issued the written notice to the
plaintiff at the police
station, the plaintiff was uninjured as he
insisted he was.
[67]
The plaintiff and his witnesses made a
favourable impression upon the court. Their evidence was logical and
consistent and coherent.
There were no material contradictions
in their respective accounts and everything lines up seamlessly with
the probabilities as
well as the documentary evidence including the
fact that the notice turned out to be a sophistry to justify the
plaintiff’s
having been unceremoniously brought to the police
station under the circumstances he attested to. It even aligns
with the
odd features that emerged from their collective testimony,
for example the behaviour of the female officer at the plaintiff’s
premises, and the fact that the station refused to take his
complaint. It is commendable that not one of the plaintiff’s
witnesses exaggerated the extent of the injuries he sustained or the
manner in which they were occasioned to him even though the
incident
seemed to have been quite traumatically perceived by the family. It
goes without saying that the details related about
the assault align
with the medical report as well.
[68]
Sergeant Mzukwa contrariwise failed to
impress this court as a witness or an officer of this court who has a
duty to respect and
uphold the law. He contradicted himself and
was particularly evasive, leaving this court to conclude ineluctably
that he
could not have been at the plaintiff’s premises when
the assault and arrest happened on the plaintiff’s account. If
he had been he would certainly have been able to describe the vehicle
in which the plaintiff was conveyed to the police station.
Moreover, his version that the plaintiff supposedly accompanied him
to the police station voluntarily for the express purpose of
been
served with a notice doesn’t fit comfortably with his testimony
that he thereafter refused to sign for the notice.
[69]
This was decidedly one of those cases where
the police’s power to arrest was abused to teach him a lesson
no doubt for daring
to assert that he was tired of the way he was
being treated. The fact that he offered the lament and that it
evoked certain
negative comments about him lends further support to
the plaintiff’s case that his business had been closed
prematurely by
the police the night before.
[70]
In the result I have no hesitation in
rejecting the evidence of the Sergeant Mzukwa such as it is in
supposed conflict with that
of the plaintiff’s. I further
find, given the assurance by the plaintiff and all his witnesses that
his eyes were obviously
injure, that he deliberately concealed the
plaintiff’s condition at the time he issued him with the
warning notice.
[71]
The plaintiff has accordingly succeeded in
establishing the burden upon him to prove his claims on a balance of
probabilities.
[72]
In the premises I make the following order:
1.
The defendant is liable to pay such damages
as may be found proven arising upon the unlawful assault and arrest
of the plaintiff
by members of the South African Police Service
(“
SAPS
”)
on 25 April 2021, as well as the unlawful closure of the plaintiff’s
business trading as “
Sox Tavern
”
by members of SAPS on 23 April 2021.
2.
The
defendant is liable to pay the plaintiff’s costs of suit.
[2]
B HARTLE
JUDGE OF THE HIGH
COURT
DATE OF
HEARING
: 14 & 15 February 2024.
HEADS OF ARGUMENT
: 22 & 23 February 2024
DATE OF JUDGMENT
: 28 June 2024*
Appearances:
For the plaintiff:
Mr. T.H Melane instructed by Mgweshe Ngqleni Inc., East London (Ref.
MN/bk/B27/21)
For the defendants:
Ms. V Jozi instructed by The State Attorney, East London (Ref. 672/21
– P7 Mr Isaacs)
*
By arrangement with
the parties this judgement was delivered electronically by email
.
[1]
Stellenbosch
Farmers’ Winery Group Ltd and Another v Martell et Cie and
Others
2003 (1) SA 11
(SCA) at par [5].
[2]
The
parties may approach me by consent to determine the appropriate
scale of counsel’s costs, failing which Scale A applies.