IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, MTHATHA )
Case No.: 3104/16
Reportable Yes/No
In the matter between:
UNATHI MANTASHE Plaintiff
and
MINISTER OF POLICE Defendant
JUDGMENT
Cengani -Mbakaza AJ
Introduction
[1] The plaintiff, a student at Ntombozuko FET College (the College) instituted a
civil action against the Minister of Police (the defendant) for wrongful acts allegedly
committed by the members of the South African Police Services (SAPS) whilst in the
course and scope of the defendant’s duties.
[2] In her particulars of claim, the plaintiff outlined that on or about 8 March 2016,
she was assaulted by the members of SAPS unknown to her, without any
reasonable excuse. Therefore, she suffered damages in the amount of R5 00 000
(Five Hundred Thousand Rand).
[3] The defendant denied the assault and asserted that the students were
embarking on a strike, and its members were summoned to assess the situation. In
addition, the defendant averred that its members intervened when the plaintiff
refused to vacate the premises resulting in a physical altercation between her and
the security guard. Furthermore, the defendant denied the liability for any damages
suffered as a result of the alleged assault.
[4] In a pre-trial conference dated 14 November 2022, the parties agreed that the
duty to begin and the burden of proof shall rest with the plaintiff and further that the
issues of merits and quantum will be dealt with simultaneously. During the trial
proceedings, I endorsed this proposition.
The evidence
[5] In the weeks leading up to the incident, the students had a conflict with the
College management emanating from certain grievances that they had. As a result,
they embarked on a strike and were later ordered to vacate the school premises.
According to the testimony of the plaintiff, the day of the incident was meant for the
students to obtain feedback from the College management concerning their
grievances.
[6] She had been chatting with other students when she heard a scream and
observed others dispersing. At that moment she saw a police officer advancing
towards her back. She could not run because the police officer grabbed,
manhandled and assaulted her with a baton. He continued to assault her until she
fell to the ground. Whilst in that position, the police officer continued with the assault.
Certain male students intervened, asking the police officer to assault them instead.
[7] After the intervention by other students, the police officer stopped assaulting
her. She went home and observed that her arm was swollen. On the following day,
she went to Madwaleni Hospital for examination and treatment. Asked to explain the
injuries, the plaintiff testified that a medical report was comple ted, and she suffered
the injuries as depicted. These included a swollen arm and bruises (ecchymosis).
The medical practitioner concluded that she had a soft tissue injury.
[8] In contrast, the police officer Seargent Nqaba Vuke (Sgt Vuke) testified that
on this day the students had embarked on a strike. Toge ther with two other police
officers, he was summoned to the College to monitor the situation and alert the
Public Order Police Services (POPS) when it reached a critical point . As they
approached the premises, they saw the security guard s having a physical altercation
with students and the plaintiff. This emanated from the refusal of the plaintiff and
other students to vacate the premises as ordered. Sgt Vuke testified that his role was
to intervene only, he never assaulted the plaintiff. This is the issue that the court is
called upon to decide.
The legal framework
[9] In order to succeed, the plaintiff must prove her case on a balance of
probabilities. As early as 19841, and even prior2, the South African Courts set a legal
tone on the test to be applied in civil cases and the correct approach to be adopted
where there are two mutually destructi ve versions. In Maitland of Kensington Bus Co
(Pty) Ltd3, Davis J held that:
‘For judgment to be given for the plaintiff, the court must be satisfied that
sufficient reliance can be placed on his story for there exist a strong
probability that his version is a true one.’
1 In National Employers General Insurance Limited v Jagers 1984 (4) SA 437 at 440 D -G, the court
held, “[I]t seem to me with respect, that in any civil case, as in criminal case, the onus can ordinarily
be discharged by adducing credible evidence to support the case on 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 plain tiff 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…”
2 Pillay v Krishna 1946 AD 946 at 952 -3. In National Employers’ Mutual Genera l Insurance
Association v Gray 1931 ad 187 at 199 , the court held: ‘Where there are two stories mutually
destructive, before the onus is discharged, the court must be satisfied that the story of the litigant
upon whom the onus rests is true .’ See also Koste r Ko-operative Landbounmaantskappy Bpk v Suid
Afrikaanse Spoorwee 1974(4) SA 420 (W) at 426 -7; African Eagle Assurance Co Ltd v Cainer 1980
(2) SA 3 24.
3 1940 CPD 489 at 492 . See also Selamolele v Makhado 1988(2) 375 A -B.
[10] The same legal stance was expanded upon with eloquence by the Supreme
Court of Appeal (SCA) in Stellenbosch Famers’ Winery Group Ltd & Another v
Martell Et Cie & Other s (Stellenbosch Winery)4. In this matter, the SCA held that the
approach involves a three -pronged analysis, and this includes the witnesses’
credibility, their reliability and probabilities.
[11] For the court to objectively follow this approach, several factors while not
conclusive may play a significant role. This necessitates various characteris tics
including the witness’ honesty and behaviour while testifying, hidden biases,
inconsistencies within the testimony or with previously stated facts, the probabilities
or improbabilities or specific aspects of the account of events.5 The list is not
exhaustive.
[12] According to Stellenbosch Winery6, the witnesses’ credibility relies on two key
factors , namely the opportunity to experience the events in question and the quality,
integrity and independence of their recollection.
The court’s analysis of evidence
[13] Given the fact that this was a very short trial with limited factual disputes, it is
not necessary to dwell much on the parties’ factual submissions. Most importantly,
both parties relied heavily on the well-established legal principles which I subscribe
to. The plaintiff is a single witness, I must treat her evide nce with caution. Section 16
of the Civil Proceedings Act 25 of 1965 provides:
‘Sufficiency of evidence of one witness
Judgment may be given in any civil proceedings on the evidence of any single
competent and credible witness. ’
Although it is acknowledged that the credibility of a single witness is not determined
by a specific rigid test or formula7, the case of Sauls8, notwithstanding its origins in
4 2003(1) SA 11 SCA para 14J-15 A-D.
5 Fn 2 above.
6 Fn 2 above.
7 S v Sauls and Others 1981 (4) All SA 172 at 180 E -G.
8 Fn 7 above .
criminal proceedings provides a valuable guidance in the matter under consideration.
In Sauls , the court held that “the trial judge will weigh its evidence, will consider its
merits and demerits and having done so, will decide whether it is trustworthy and
whether, despite the fact that there are shortcomings or defects or contradiction in
the testimony, he is satisfied that the truth has been told… ”.
[14] With these principles in mind, I now turn to evaluate the evidence in the
matter at hand. To establish the truthfulness of the plaintiff’s testimony, I do not
intend to prolong the analysis by focusing on immaterial issues. For instance, the
presence or absence of a strike on the day of the incident is neither here nor there.
Notably, it is not in dispute that at some point the situation at the College became
chaotic and attracted police visibility, there were screams by other students and
some dispersed and left the premises. The presence of the police at the scene,
coupled with the injuries sustained by the plaintiff which are corroborated by a
medical report in the form of hospital records enhances the credibility of the plaintiff’s
testimony. The argument by Mr Rili, counsel for the defendant to the effect that the
plaintiff’s injuries were not consistent with an assault, lacks evidentiary support.
[15] Although there is a dispute between the parties’ testimonies regarding the
identity of the wrongdoer, there is no evidence to suggest that the plaintiff mistakenly
identified Sgt Vuke as the police officer who assaulted her. No matter how crowded
the scene was, Sgt Vuke’s presence at the scene was uncontroverted. Even if it
were to be suggested that the plaintiff might be shielding the actual perpetrator to
falsely implicate the police officer, that proposition would be unfounded as it lacks
evidentiary backing. The undisputed evidence of the plaintiff is that the uniform of the
security guards differs from that of the police officers. Sgt Vuke corroborated this
assertion and mentioned that the uniform of the security guards who were at the
College premises was green. Therefore, the probabilities point to Sgt Vuke as the
person who assaulted the plaintiff. As a consequence of these findings, I conclude
that the plaintiff was a credible and reliable witness.
[16] Sgt Vuke did not impress me as a truthful witness. The plaintiff’s undisputed
testimony is that before the arrival of the police, she was standing in the foyer
chatting with other students when she was unexpectedly attacked. I therefore find it
implausible that the security guards who were present in the College premises the
entire time before the police arrived, would suddenl y attack and manhandle the
students in the presence of the law enforcement officers, thereby warranting
intervention by the police.
[17] The manner in which the plaintiff explained the peaceful atmosphere before
the police arrival logistically suggests that the attackers were the new arrivals on the
campus - the police. Instead of assessing the situation as they were summoned to
do, the police forcefully ordered the students to vacate the premises, including the
plaintiff. The police’s presence resulted in chaos, which was characterised by
screams, students running, dispersi ng and abruptly vacating the premises.
Therefore, the plaintiff has proved the case on a balance of probabilities.
Quantum
[18] In assessing the issue of the quantum of damages, it is required of this court
to exercise its discretion to grant what it deems to be a just and sufficient
recompense.9
[19] Our courts have made awards of a similar nature in a number of cases.10
However, in Protea Assurance Ltd v Lamb,11 Potgieter JA held that:
‘Headnote: In assessing general damages for bodily injuries, the process of
compariso n with comparable cases does not take the form of a meticulous
9 Peterson v Minister of Safety and Security (1173/2008) [2009] ZAECGHC65 (23 September 2009)
at para 21.
10 In Bam v Minister of Correctional Services [2012] ZAECPEHC 66 (18 September 2012 ), the
plaintiff was assaulted with batons and sustained bruising a nd swelling of arms, bruising of abdomen
and back; haematoma of the head and a severe fracture of the knee. He was awarded 180 000 in
general damages ; In Nomboniso Plaatjies v Minister of Police [2022] ZAECMKHC 8 (3 May 2022), the
appellant sustained bruis es, scratch marks on her wrists, shock and pain in her thumb and back
following an assault by police. She was awarded R50 000; In Mhlengi v Minister of Police [2021]
ZAECGHC 59(29 June 2021), the appellant was hit and dragged to a police vehicle. He was aw arded
R40 000 for general damages; In Minister of Police v Heleni [2023] ZAECMKHC 55(11 May 2023, the
court awarded general damages to a sum of R200 000. In this matter the respondent was violently
pushed against the wall, grabbed on the ground and stamped on her right foot; Minister of Justice and
Correctional Services v Simon [2022] JOL 53352 (ECG), in an appeal which emanated from the
proceedings in the Magistrate’s Court, the respondent was injured on his anklebone and leg that
resulted in him struggling to walk and suffering pain for extended period; his ears became swollen;
hearing was impeded; a nd the bruises he sustained on his back caused him associated back pain for
some time. On appeal, the court confirmed an award of R30 000 in favour of the respondent.
11 1971 (1) SA 530 A.
examination of awards made in other cases in order to fix the amount of
compensation; nor should the process be allowed so to dominate the enquiry
as to become a fetter upon the Court's general discretion in such matters.
Comparable cases, when available, should rather be used to afford some
guidance, in a general way, towards assisting the Court in arriving at an
award which is not substantially out of general accord with previous awards in
broadly similar cases, regard being had to all the factors which are considered
to be relevant in the assessment of general damages. At the same time, it
may be permissible, in an appropriate case, to test any assessment arrived at
upon this basis by referenc e to the general pattern of previous awards in
cases where the injuries and their sequelae may have been either more
serious or less than those in the case under consideration. ’
[20] Reverting to the facts of this case, both parties argued that the court should
grant whatever it deems fair and just under the circumstances. Despite the fact that
the plaintiff adduced insufficient information regarding the impact that the assault had
on her psychological state, it is significant to take a broader spectrum of facts into
consideration. The uncontested evidence is that the assault took place in full view of
other students and the ordinary members of the public. Although she had fallen to
the ground, the assault continued. As a consequence of the assault, she felt ridiculed
and belittled.
[21] In a democratic state like ours, protests that create violence between the
students and the police should be a remnant of the past. A culture of tolerance,
constructive engagement or dialogues and conflict management is significant in
promoting a peaceful and stable academic environment. As a servant of the state, a
police officer is vested with a responsibility to “respect, protect, promote and fulfil”12
all fundamental rights entrenched in the Bill of Rights. In this instance, the defendant
failed to fulfil what our Constitution13 embraces.
12 Chapter 2 of the Bill of Rights, with particular reference to Sect ion 7 (2) The Constitution of the
Republic of South Africa Act 108 of 1996 (as adopted on 08 May 1996 and amended on 11 October
1996 ) by the Constitutional Assembly. Section 7(1) provides,’ The Bill of Rights is a cornerstone of
democracy in South Africa. It enshrines the rights of all people in our country and affirms the
democratic values of human dignity, equality and freedom’.
13 Section 12(1) states : ‘Everyone has a right to freedom and security of the person, which includes
the right - (c) to be free fr om all forms of violence from either public or private sources; (d) not to be
tortured in any way; (e) not to be treated or punished in a cruel, inhuman or degrading way.
[22] The plaintiff suffered no serious injuries, and no evidence was led regarding
permanence and the impact that the minimum injuries would have on her life.
Considering all the factors cumulatively, I am of the view that an amount of R80 000
(Eighty Thousand Rand) would be a fair and adequate award for wrongful assault.
Order
[23] Accordingly, the following order is issued:
1. Judgment is granted in favour of the plaintiff against the defendant.
2. The defendant is ordered to pay an amount of R80 000 (Eighty
Thousand Rand) for wrongful assault. The defendant shall pay interest
from 14 days after the date of this judgment, to the date of payment.
3. The defendant shall pay costs of this action on scale A as
contemplated under Rule 67A read with Rule 69 of the Uniform Rules
of Court.
_____ __________________
N CENGANI -MBAKAZA
ACTING JUDGE OF THE HIGH COURT
Appearances :
For the Plaintiff : Adv B. D. Flatela
Instructed by : LG Nogaga Inc
Mthatha
For the Defendant : Adv M. Rili
Instructed by : The State Attorney
Mthatha
Date Heard : 12 February 2025
Date Delivered : 13 March 2025