2
denying that SAPS members were the perpetrators — Onus of proof remaining on
plaintiffs — Failure or omission by police to provide a coherent account justifies an
adverse inference that the police were responsible — Defendants held jointly and
severally liable.
Damages — Quantum — General damages — Bodily injuries, physical pain, suffering,
contumelia, and severe emotional trauma resulting from unlawful assault and torture by
police officers — Plaintiffs subjected to being hooded, suffocated with plastic/rubber
material, suspended from a stairwell railing, and struck with rifles — Principles of
assessment — Solatium compensatory and not punitive — Striking a balance between
fair compensation for egregious constitutional violations and avoiding the undue
enrichment of claimants — Award of R600 000.00 to each plaintiff.
JUDGMENT
MOLAHLEHI, J
Introduction
[1] The claim for damages in this matter arises from events that occurred in the early
hours of 22 April 2016, when the first and second plaintiffs were arrested, detained
at KwaThema, and allegedly assaulted by members of the South African Police
Service while in police custody.
[2] The parties agreed that the merits be separated from quantum, in accordance with
Rule 33(4) of the Uniform Rules of the High Court. The damages claim was set down
for trial commencing on 4 November 2019. The plaintiffs' evidence was led until 7
November 2019, at which point the plaintiffs closed their case, and the defendants
applied for absolution from the instances.
[3] The application for abs olution from the instances was dismissed in a judgment of
this court dated 14 January 2020, after which the matter became part -heard. The
3
trial later resumed after a substantial delay, with the defendants leading their
evidence from 18 May 2026, culminating in the hearing's completion on 22 May
2026, with judgment reserved.
Background
[4] It is common cause that the plaintiffs were arrested by police officers acting within
the course and scope of their employment. After the arrest, the plaintiffs were
detained at Germiston Police Station, where they were charged with negligent
handling of firearms. They were then brought before the court on 25 April 2016 and
were granted bail. The charges, which were subsequently withdrawn, were
formulated under the Fi rearms Control Act.1 It is further common cause that the
plaintiffs were medically examined on 25 April 2016 and that the contents of the J88
medical reports were admitted as proof of their contents.
[5] The plaintiffs’ case is that, following their arrest, they were transported to a location
where they were assaulted and tortured by the police. The defendants deny that any
such assault was committed by their members and contend that the plaintiffs were
lawfully arrested and dealt with in the ordinary course, without unlawful conduct on
their part. Although it is admitted that the plaintiffs sustained injuries and were
assaulted, the defendants dispute that such injuries were caused by members of
the South African Police Service. In light of these admissions, the dispute between
the parties is confined primarily to the identity of the assault's perpetrators and the
circumstances under which it occurred.
[6] Closely related to this is the issue of where and when the events in question took
place, particularly what occurred between the plaintiffs' arrest and their detention at
Germiston Police Station. Resolving this dispute requires evaluating the mutually
destructive versions presented by the parties, including a n assessment of the
credibility and reliability of the plaintiffs, their supporting witness, and the police
credibility and reliability of the plaintiffs, their supporting witness, and the police
witnesses, as well as a consideration of the inherent probabilities. In this regard, the
1 Act 60 of 2000
4
Court must determine the significance of the specific alleg ations placed in dispute
in the pre ‑trial minute, including the denial that the plaintiffs were assaulted at the
time of their arrest, that they were transported to Krugersdorp Police Station, or that
they were assaulted in the manner alleged in the particulars of claim.
[7] A further issue concerns the evidential weight of the admitted medical reports,
whether the injuries recorded therein support the plaintiffs ’ version that the assault
was inflicted by police officers, and whether the defendants have provide d an
adequate explanation for the injuries sustained by the plaintiffs whilst in police
custody. It is common cause that the plaintiffs bear the onus of establishing their
claim on a balance of probabilities, and that, if it is found that the assault was
perpetrated by members of the South African Police Service acting within the course
and scope of their employment, the defendants would be vicariously liable for such
conduct.
Plaintiffs’ evidence
[8] Mr Johannes Phakathi, in his evidence ‑in‑chief, stated that he was 46 years old,
self‑employed as a taxi owner, and that in April 2016 he had been employed by
Simon James Ntshangase at a Pick 'n Pay Store located between KwaThema and
Tsakane.
[9] He stated that in the early hours of 22 April 2016, at approximately 02h 30 AM, he
was asleep at his home in KwaThema when he heard loud banging on his door and
voices identifying themselves as police. Upon opening the door, he was immediately
struck on the left shoulder by a police officer wielding a rifle. Approximately six t o
seven police officers entered his home, some wearing military -type uniforms and
others in plain clothes. They were accompanied by Warrant Officer Sergeant
Ramakatsa (W/O Ramakatsa), who enquired about a firearm allegedly used in the
killing of another person. He denied any knowledge of this.
[10] After informing the police that he kept his firearm licence in a safe, he was
[10] After informing the police that he kept his firearm licence in a safe, he was
handcuffed with his hands behind his back while naked. His girlfriend, who was also
5
naked, was instructed to leave the room. He stated that the police opened the safe,
removed his firearm licence, placed it with the firearm and his car keys in a plastic
bag, and then instructed him to indicate where the second plaintiff, Mr Mabote,
resided. He was escorted out of the house by several officers and made to walk
approximately 500 metres to where several unmarked vehicles, including BMWs, a
Golf, and other private vehicles, were parked. No marked police van was used. He
stated that he was pushed into a white car while handcuffed and transported to the
residence of the second plaintiff.
[11] He testified that the second plaintiff ’s residence was in a secure estate,
approximately five to ten minutes ’ drive from his home. Upon arrival, the police
stopped some distance away and walked him towards the proper ty, where he
identified the house. He further testified that the police jumped over the gate,
returned with the second plaintiff, who was already handcuffed, and that both were
placed in separate vehicles. He stated that shortly thereafter, outside the boom gate,
a police officer told him he would “tell the truth.” After this, a black plastic covering
was placed over his head, and he was transported at high speed. He remained
handcuffed and alone in the back seat and was unable to see where he was being
taken.
[12] After approximately 50 minutes, he was taken into a building, still blindfolded, with
officers on either side holding him and directing him inside. Upon entering the
building, the covering over his head was removed, and he was assaulted. His hands
were cuffed behind his back and placed over a railing, and his legs were kicked
away, leaving his body suspended on the railing. He stated that he experienced pain
in his shoulders and body and that he was further assaulted during this process. He
further testified that during this period he was suffocated with a plastic covering and
repeatedly assaulted, including being subjected to further physical force and
repeatedly assaulted, including being subjected to further physical force and
humiliation, and that the assaults were part of attempts to extract information or a
confession from him. After that, he was taken to Germiston Police Station, where he
remained detained from 22 April until 25 April 2016. During the detention, he was
required to sign documents without reading them, and Sergeant Ramakatsa was
6
present at times. He testified that the second plaintiff was kept separately and that
he heard him screaming during this period.
[13] He was released on 25 April 20216 after the charges against him were withdrawn.
He immediately thereafter attended the hospital, where he was examined in relation
to his complaint of pain in his body, shoulders, arms, and thighs.
[14] He further testified that during his detention, he received visits from his wife, who
informed him that his personal property was taken, and that his vehicles were not
operational. He stated that he felt scared and developed distrust towards the police
following the incident.
[15] Under cross‑examination, Mr Phakathi confirmed that he was struck on the shoulder
with a rifle as the police were entering his house, but no further assault occurred
either inside the house or during the walk to the vehicles. He confirmed that he was
transported in unmarked vehicles, not in a police van. He was not blindfolded during
the initial stages of transport, but only after leaving the second plaintiff’s residence.
He indicated that he suffered pain in his shoulder but did not sustain visible head
injuries durin g transport. He acknowledged some differences between his oral
evidence and the particulars of the claim, particularly regarding the location and
timing of the assaults.
[16] According to Mr Phakathi’s evidence, the second plaintiff, Mr Thabiso Mabote, was
arrested at his residence, handcuffed, transported in a separate vehicle, and
detained separately from the first plaintiff.
[17] The second plaintiff, Mr Thabiso Mabote, testified that he lived at Sharon Park
Estate and that, during the early hours of 22 April 2 016, between 03h00AM and
03h30AM, he was awakened by his wife after she heard noises and movement in
their yard, even though the property was secured.
[18] He retrieved his firearm from a safe in his bedroom upon hearing the noise, but after
[18] He retrieved his firearm from a safe in his bedroom upon hearing the noise, but after
realising that the people outside were police officers, he returned and placed the
gun between the mattress and the base of the bed.
7
[19] He stated that approximately eight to nine police officers entered the property, some
of whom were wearing military‑type clothing. He identified W/O Ramakatsa as the
officer who addressed him and asked for his name.
[20] W/O Ramakatsa enquired about his firearm. He then instructed the other police
officers to handcuff him whilst inside the house, but he was not assaulted at that
stage.
[21] After being handcuffed, he was escorted from the house by a group of police officers,
who pushed him towards a motor vehicle and placed him in the back seat of a white
double cab, where he remained handcuffed with his hands behind his back. As soon
as they were outsid e the estate, the vehicle stopped, and he was told to speak or
face consequences. A black hood or covering was then placed over his head. He
was then transported for approximately 45 to 50 minutes at high speed, with his face
covered and unable to see where he was being taken, which caused him fear.
[22] He testified that upon arriving at a building, with his head still covered, he was
ordered to get out of the vehicle, pushed and directed into the building, and taken
to a room where he was questioned by someone whose voice he later recognised
as that of W/O Ramakatsa. While in the building, he heard someone screaming and
recognised the voice as that of the first plaintiff. He was later taken out of the room
and observed the first plaintiff, who appeared injured, crying and pleading for help.
[23] He testified that he was then assaulted in a stairwell, where he was instructed to
climb onto a railing while his hands were cuffed behind his back, and that his legs
were kicked away, leaving him suspended with his body hanging from the railing. A
plastic or rubber-type material was placed over his head and tightened, restricting
his breathing and causing difficulty breathing, and he became distressed. The
covering was removed intermittently and replaced, and during the a ssaults he was
covering was removed intermittently and replaced, and during the a ssaults he was
struck with a rifle on his stomach and legs, causing pain. The handcuffs were
tightened, causing loss of sensation in his hands, and he was struck despite
informing the police that he had undergone a hernia operation.
8
[24] He stated that he was returned to a room, subjected to further questioning, and that
he again heard the first plaintiff screaming from another room. He further testified
that, at a later stage, he pretended to faint and indicated that he had asthma. He
was then taken outside to a vehicle, where his head was no longer covered, and he
observed that the building was long. While in the vehicle, a police officer pointed a
firearm at his stomach and threatened to shoot him.
[25] He further testified that he was returned to a room where he a gain saw the first
plaintiff seated and speaking with police officers, and that he observed the first
plaintiff in a distressed state. He stated that he was thereafter taken back to a
vehicle, still handcuffed, and driven to Germiston Police Station, arriving there when
it was already light outside. He further testified that at the police station he was
charged with negligent handling of a firearm and required to sign some documents.
[26] He testified that he received no immediate medical treatment despite reque sting to
see a doctor, and that he was taken to hospital only on 25 April 2016, when he was
examined. He stated that, before the incident, he had no injuries, and that the pain
and injuries he experienced arose after the events described above.
[27] He further testified that he was not assaulted at his home during the arrest but was
assaulted at the location to which he was taken. He also stated that he was not
blindfolded while walking from his house to the vehicle, but only thereafter.
[28] Under cross ‑examination, he denied defecating on himself. He confirmed that he
was pushed while being escorted to the vehicle, but not assaulted at that stage, and
that his head was covered only after he had been placed in the vehicle and after
they had travelled some distance. H e recognised the first plaintiff's voice when he
heard him screaming and maintained that the injuries he sustained were inflicted
heard him screaming and maintained that the injuries he sustained were inflicted
during the incident described. He further confirmed that the J88 report reflected the
injuries he sustained, but did not record that he had a hernia, which he had reported.
9
The respondents’ evidence
[29] The evidence of the police, as presented through their witnesses, W/O Ramakatsa,
Sergeant Ledimo, and Captain Januarie, was that the arrest of the plaintiffs on
22 April 2016 arose from information from an informer regarding an alleged murder.
[30] In his investigation into the alleged murder, W/O Ramakatsa received information
from an informer implicating the plaintiffs. He organised a police team, including
Ledimo and Januarie, to atten d the plaintiffs' respective residences in the early
hours of that morning. He testified that upon arrival at the first plaintiff’s home, they
were directed by a woman to the room where the first plaintiff was sleeping. The first
plaintiff opened the door after they knocked, explained their purpose, and asked
about a firearm, which the first plaintiff confirmed he had.
[31] He stated that the firearm was found under a pillow, which he regarded as improper
storage under the Firearms Control Act, and on that basis, he arrested the plaintiff.
He further testified that the first plaintiff was placed in a motor vehicle driven by
Captain Januarie, in which he himself also travelled, and that the first plaintiff then
led them to the second plaintiff's residence.
[32] He test ified that at the second plaintiff ’s residence, entry was obtained with the
assistance of estate security, and that the purpose of the police presence was
explained to the second plaintiff. Upon enquiry, the second plaintiff indicated that he
had a firearm , which was found under the mattress, and that he was accordingly
arrested for improper storage of the firearm. He stated that, thereafter, both plaintiffs
were transported in police vehicles to the offices of the Flying Squad in Brixton,
where they were questioned in relation to the murder under investigation, and that
they were not taken to Krugersdorp Police Station at any stage. He further testified
that the questioning was conducted separately and that, at no point, were the
that the questioning was conducted separately and that, at no point, were the
plaintiffs assaulted, tortured, threatened, blindfolded, or otherwise mistreated by any
members of the police.
10
[33] Sergeant Ledimo testified that he was present at both arrests and confirmed W/O
Ramakatsa's account of attendance at the first and second plaintiffs ’ homes, the
enquiries regarding firearms, and the arrests made on that basis. He stated that he
did not assault either of the plaintiffs, did not witness any assault by any other police
officer, and that the plaintiffs were transported from the scenes to Brixton and
questioned there. He further testified that the plaintiffs were not blindfolded at any
stage and were not taken to Krugersdorp Police Station. He stated that he later
became aware that a firearm had been recovered from the second plaintiff ’s
residence under the mattress.
[34] The last witness for the defendants was Captain Januarie, who testified that he was
part of the police team, primarily acted as the driver of the vehicle transporting the
first plaintiff, and remained in the vehicle during the arrest operations. He stated that
he drove the first plaintiff, together with W/O Ramakatsa, from the first plaintiff ’s
residence to the second plaintiff ’s residence and thereafter drove to Brixton Police
Station. He further testified that he did not observe any injuries on the first plaintiff
during transport, did not see the first plaintiff being assaulted at any stage, and that
no hood or covering was placed over the first plaintiff ’s head while he was in the
vehicle. He disputed the claims that the police transported the plaintiffs to
Krugersdorp Police Station at any stage.
[35] The essence of the defendants' testimony is that the plaintiffs were lawfully arrested
and then transported to the Brixton police station, where they were interrogated
about the alleged murder.
[36] In their heads of argument, the defendants argued that the plaintiffs’ case should be
dismissed as hopeless, consistent with the approach adopted in Children’s
Resources Centre and Others v Pioneer Foo d (Pty) Ltd and Others2. In that case,
the SCA described a hopeless case as follows:
the SCA described a hopeless case as follows:
2 2013 (2) SA 213 (SCA)
11
"…Whether a case is hopeless has two aspects. It is hopeless if it is advanced on
a basis that is legally untenable. It is also hopeless if it is advanced in the absence
of any credible evidence to support it. These are categories that have long been
recognised in our law and practice. A case is legally hopeless if it could be the
subject of a successful exception. It is factually hopeless if the evidence available
and pote ntially available after discovery and other steps directed at procuring
evidence will not sustain the cause of action on which the claim is based. In other
words if there is no prima facie case then it is factually hopeless.”
[37] The defendants further challenged the validity of the plaintiffs' particulars of claim
on the ground that they are based on hearsay evidence provided by Mr Ntshangase,
who at some stage was the employer of both plaintiffs. They contended that the
information was hearsay because Mr Ntshangase was not present when the arrests
were effected or when the alleged assaults took place. It was further contended that
the litigation was financed by Mr Ntshangase, who is not a litigant. Another point
was that the plaintiffs’ evidence materially differed from the averments contained in
the particulars of claim. In this regard, the defendants particularly refer to the
plaintiffs’ admission during cross-examination that the averment in the particulars of
claim that they were transported after the arrest in a police van was incorrect, and
that the averment that the head injuries on them were caused by the police van
being driven at a high speed was a fabrication. This includes Mr Mabote's denial
that he was blindfolded at the time of his arrest.
[38] Regarding the plaintiffs' reliance on the J88 medical form, the defendants contended
that the diagram drawn by Dr Maphosa, who examined them after their release from
police custody, did not support the plaintiffs' account of the assault.
police custody, did not support the plaintiffs' account of the assault.
[39] The other challenge to the plaintiffs ’ case raised by the defendants is that the
plaintiffs failed to call Dr Maphosa as their expert witness, and that they did so
because they feared calling her would “go to further sink their case.” The same point
is raised in relation to other witnesses whom the defendants allege the plaintiff failed
to call, such as Ms Mgidi.
12
[40] The other challenge to the first plaintiff ’s case concerns the averment in the
particulars of claim that one of them was assaulted until he defecated. The first
plaintiff conceded in cross -examination that this averment was incorrect. This was
corroborated by Ms Mgidi’s version under cross-examination when she stated that
the first plaintiff’s clothes did not smell of “poo” when she collected them from the
police station.
[41] The other witnesses whom the defendants contended ought to have been called are
Mr Ntshangase, Mr Phakathis ’s girlfriend, his sister, the unnamed Independent
Police Investigative Directorate (IPID), and the psychologist.
[42] The principle regarding a failure to call a witness who is available and willing to
testify was set out in Elgin Fireclays Ltd v Webb3 as follows:
"It is true that if a party fails to place the evidence of a witness, who is
available and able to elucidate the facts, before the trial Court, this failure
leads naturally to the inference that he fears that such evidence will expose
facts unfavourable to hi m. But the inference is only a proper one if the
evidence is available and if it would elucidate the facts."
[43] The principle was reaffirmed in Galante v Dickinson,4 where the Appellate Division
held that if a party is in a position to give material evidence on disputed facts and
fails to do so, an adverse inference may properly be drawn. However, an adverse
inference is not automatically drawn merely because a witness is not called. In
Oosthuizen v Minister of Police 5 the court in dealing with this principle referred to
the academic writings in Principles of Evidence,6 where the learned authors stated
the following:
“A party's failure to call available witnesses may in exceptional circumstances lead to
an adverse inference being drawn from such failure against the party concerned. The
3 1947 (4) SA 744 (A) at 749 – 750.
4 1950 (2) SA 460 (A)
3 1947 (4) SA 744 (A) at 749 – 750.
4 1950 (2) SA 460 (A)
5 [2023] ZAGPPHC 248 (11 April 2023).
6 PJ Schwikkard and Rademeyer (2002) (2nd Edition), at p513:
13
extent to which such an inference can be drawn will depend on the circumstances of
the case. The Court should, inter alia, consider the following: Was the party concerned
perhaps under erroneous but bona fide impression tha t he had proved his case and
that there was therefore no need to have called the witness? Is there a possibility that
the party concerned believed that the potential witness was biased, hostile or
unreliable?"
[44] In Shishonga v Minister of Justice and Constitutional Development and Another,7
the Court held that:
"… The failure of a party to call a witness is excusable in certain circumstances, such
as when the opposition fails to make out a prima facie case. But an adverse inference
must be drawn if a party fails to testify or produce evidence of a witness who is
available and able to elucidate the facts, as this failure leads naturally to the inference
that he fears that such evidence will expose facts unfavourable to him, or even
damage his case. That inference is strengthened if the witnesses have a public duty
to testify."
Discussion and analysis
[45] As stated above, it is common cause that the plaintiffs were arrested on the day in
question, taken to the Brixton Flying Squad for interrogation , detained at the
Germiston police station, and then taken to the magistrate's court, where they were
charged with contravening the Firearms Control Act.
[46] There are two main issues for consideration in this matter, namely: whether the
plaintiffs were assaulted and, if so, by whom. The issue of assault and the contents
of the J88 medical reports are admitted in the pre -trial minutes dated 8 October
2019. In this regard, the relevant part of the pre-trial minutes reads as follows:
7 2007 (4) SA 135 (LC) at para 112.
14
“8.23. That the first and second plaintiffs were assaulted but no admission is made
as to whom assaulted the first and second plaintiffs and that the first and second
defendants' employees caused the assault.”
[47] Regarding the J88 form, the parties recorded in their pre-trial minutes that the first
and second plaintiffs were examined by Dr Maphosa on 25 April 2016 and further agreed
that:
“8.17. The defendants admitted the truth of the content of the report by Dr Maphosa
dated 25 April 2016 ("the J88 form") and admitted the report as being proof of i ts
content.
8.18. Dr Maphosa concluded in his reports ("the J88 form") that the first and second
plaintiff had been assaulted.
8.19 . . .
8.20 . . .
8.21. Dr Maphosa, after examining the second plaintiff, concluded ("the J88 form")
that the second plaintiff had been assaulted.
8.22. Dr Maphosa's clinical notes relating to the second plaintiff's injuries are those
contained in the diagram forming part of Dr Maphosa's report.
8,23 , , ,
8.24. The defendant admitted the observations made by the follo wing experts to be
called by the defendants in their summaries in terms of rule 36(9)(b) that the first and
second plaintiffs were assaulted over a number of days and that they sustained
injuries without any admission being made that the first and second d efendants'
employees were the cause of such injuries or that they assaulted the first and second
plaintiffs, namely:
8.24.1. The report by Dr Ramokgopa;
8.24.2. The report by Nompumelelo Shezi.
15
8.24.3. The report by Ms Thozama Jaca.”
[48] It is trite that the terms of an agreement recorded in the pre-trial minutes are legally
binding, and the courts are obliged to take them into account when adjudicating a
case. The broad principles governing the status of a pre -trial conference were
summarised in South African Breweries (Pty) Ltd v Louw,8 where the court held that:
“...The chief objective of the pre-trial conference is to agree on limiting the issues
that go to trial. Properly applied, a typical minute – cum – agreement will shrink the
scope of the issues to be advanced by the litigants. This means, axiomatically, that
a litigant cannot fall back on the broader terms of the pleadings to evade the
narrowing effect of the terms of a minute. A minute, quite properly, may contradict
the pleadings, by, for example, the giving an admission which replaces an earlier
denial.”
[49] Thus, the central question, addressed later in this judgment, is whether the injuries
sustained by the plaintiffs are attributable to members of the South African Police
Service. As indicated above, having admitted the assault, the defendants denied
responsibility for it and thereby purported to raise a factual dispute.
[50] Before exploring the factual dispute over who is responsible for the assault, it is
appropriate to note that the burden of proving, on the balance of probabilities, both
the assault and the responsible party rests with the plaintiffs.
[51] I now turn to address some of the points raised by the defendants in challenging the
plaintiffs' case.
The validity of the particulars of claim
[52] The first challenge raised by the defendants concerns the status of the particulars
of claim, which, as stated earlier, were developed based on information obtained
from a third party, Mr Ntshangase, and thus the contention that the plaintiffs' case is
unsustainable. The main complaint of the defendants is that the plaintiffs ’ case is
8 (2018) 39 ILJ 189 (LAC) at para 8.
16
unsustainable because their particulars of claim are based on hearsay evidence, as
Mr Ntshangase did not witness the assault.
[53] It is trite that a claim cannot be defective or be excipiable merely because it is based
on information from a third party. In general, the validity of a pleading can be
challenged by way of an exception. In the present matter, the defendants elected
not to use that mechanism but raised the issue as a general point.
[54] In Fischer and Another v Ramahlele and Others,9 the Supreme Court held that the
purpose of pleadings is to set out and define the nature of the dispute, and it is for
the court to adjudicate upon those issues. The Constitutional Court in South African
Police Service v Solidarity obo Barnard confirmed this principle,10 as follows:
“…the purpose of the pleadings is to define and inform the court of first instance
about the issues between the parties and also warn the other parties of the case
they are required to meet, so as to give them the opportunity to present factual
material and legal argument to meet that case.”
[55] Thus, the particulars of claim, as part of the pleadings, may fail only if the plaintiff
cannot produce admissible evidence at trial or if no evidence has been adduced to
sustain the claim as set out therein. All that is required of the plaintiff is to plead a
cause of action comprising material facts that must be proven at trial. Put another
way, the plaintiff need not plead the source of the evidence but simply plead facts.11
[56] In the present matter, the issues for determination are clearly set out in the plaintiffs’
particulars of claim. The cause of action relied upon by the plaintiffs is unambiguous
and adequately informs the defendants of the case they must meet. In essence, the
defendants were called upon to answer allegations arising from the alleged assault
on the two plaintiffs by members of the police. This point is therefore unsustainable,
9 2014 (4) SA 614 (SCA) at para 13.
10 2014 (6) SA 123 (CC) at para 204. See also Prince v President, Cape Law Society, and Others 2001 (2)
SA 388 (CC) at para 22.
11 Propshaw (Pty) Ltd v Karoo-Osche, Vryburg (Pty) Ltd 2018 JDR 1998 (NWM) at para 3 and McKenzie v
Farmers’ Co-operative Meat Industries Ltd 1922 AD 16.
17
as the nature and scope of the dispute are clearly defined by the pleadings, leaving
no uncertainty as to the issues requiring adjudication by this Court.
Failure to call witness by the plaintiffs
[57] The defendants contend that the plaintiffs ’ case fails because they failed to call
certain witnesses to prove it. They particularly emphas ised the failure to call the
medical practitioner who examined the plaintiffs shortly after their release from
custody.
[58] While it is correct that an adverse inference may, in appropriate cases, be drawn
from the failure to call a witness, that principle is not applied mechanically. In Elgin
Fireclays Ltd v Webb,12 the Appellate Division held that:
"...if a party fails to place the evidence of a witness, who is available and able to
elucidate the facts, before the trial court, this failure leads naturally to the inference
that he fears such evidence will expose facts unfavourable to him."
[59] In Gleneagles Farm Dairy v Schoombee ,13 the Appellate Division emphasised that
failing to call a witness does not invariably justify an adverse inference. Whether
such an infe rence should be drawn depends on the particular facts, including the
witness's significance, the evidence already before the court, and whether the
witness would in fact have been expected to support the party's case. In other words,
the mere failure to call a witness who is willing and available does not automatically
justify drawing an adverse inference. The discretion to draw an adverse inference
depends on the circumstances of the case.
[60] In the present case, the correctness of the J88 reports compiled b y the medical
practitioner is admitted, and the injuries sustained by the plaintiffs are common
cause, in light of the admission in the pleadings. The absence of the medical
practitioner’s evidence affects only the issue of causation, which must be
determined in the light of the totality of the evidence before this Court. In Minister of
determined in the light of the totality of the evidence before this Court. In Minister of
12 1947 (4) SA 744 (A) at 749 – 750.
13 1949 (1) SA 830 (A) at 840.
18
Police v Sabisa & Another,14 the fact that the doctor was not called to testify or that
the full medical reports were not presented was of no moment, given the common
cause facts which support the respondent’s evidence.
[61] The defendants ’ reliance on the contradiction between the averme nt in the
particulars of claim and the evidence before this Court, including the failure to call
Ms Mgidi, does not materially affect the probabilities or the credibility of the plaintiffs.
The defendants’ contention in this regard rests on the averment that the first plaintiff
defecated on himself due to the assault and on his concession during cross -
examination that this is not true. Similarly, during cross -examination, Ms Mgidi ’s
version was that the first plaintiff’s clothes did not smell of “poo” when she collected
them from the police station. In the circumstances, there was no need to call Ms
Mgidi as a witness, particularly as she did not witness the assault whilst the plaintiffs
were in custody.
[62] The J88 reports constitute objective evidence of injur ies consistent with assault.
Although the perpetrators are not identified therein, an important factual foundation
in this regard concerns the assault. The objective medical evidence, in my view, is
consistent with the plaintiffs ’ version and remains unex plained by the defendants
and accordingly assumes particular significance in the evaluation of probabilities.
Dispute of facts
[63] I now turn to the purported factual dispute over who assaulted the plaintiffs.
Resolving such disputes requires applying the well‑established approach articulated
in Stellenbosch Farmers ’ Winery,15 namely a composite evaluation of credibility,
reliability and probabilities to determine whether the party bearing the onus has
discharged it. That approach accords with the principle stated in National Employers’
General Insurance Co Ltd v Jagers,16 that findings on credibility cannot be divorced
General Insurance Co Ltd v Jagers,16 that findings on credibility cannot be divorced
from the probabilities but must be assessed in the light of the totality of the evidence.
14 2024 (2) SACR 553 (SCA) at para 20 – 30.
15 2003 (1) SA 11 (SCA) at para 5.
16 1984 (4) SA 437 (E) at 440 – 441.
19
The enquiry is thus not concerned with isolated impressi ons of witnesses, but with
a reasoned assessment of the competing versions against the objective facts and
inherent probabilities.
[64] Another important principle in this regard is whether a real and genuine dispute of
fact exists. In Wightman t/a JW Construction v Headfour (Pty) Ltd ,17 the Supreme
Court of Appeal held that a real, genuine and bona fide dispute of fact can exist only
where the court is satisfied that the party who purports to raise the dispute has
seriously and unambiguously addressed the facts said to be disputed. In general,
a bare denial of facts may not satisfy the required standard for a genuine and bona
fide dispute of fact . In this respect, the Supreme Court of Appeal in Wightman t/a
JW Construction v Headfour (Pty) Ltd,18 aptly stated that:
“A real, genuine and bona fide dispute of fact can exist only where the court is
satisfied that the party who purports to raise the dispute has in his affidavit
seriously and unambiguously addressed the fact said to be disputed. There will of
course be instances where a bare denial meets the requirement because there is
no other way open to the disputing party and nothing more can therefore be
expected of him. But even that may not be sufficient if the fact averred lies purely
within the knowledge of the averring party and no basis is laid for disputing the
veracity or accuracy of the averment. When the facts averred are such that the
disputing party must necessarily possess knowledge of them and be able to
provide an answer (or countervailing evidence) if they be not true or accurate but,
instead of doing so, rests his case on a bare or ambiguous denial the court will
generally have difficulty in finding that the test is satisfied…”
[65] It is important to note, however, that where the disp ute of facts concerns injuries
sustained by a person while under police control, the general evidential enquiry is
sustained by a person while under police control, the general evidential enquiry is
informed by additional considerations arising from the nature of that control. The
authorities make clear that, in these circumstances, the e vents giving rise to the
17 2008 (3) SA 371 (SCA) at paras 11 – 13.
18 2008 (3) SA 371 (SCA) (10 March 2008)
20
injury ordinarily lie peculiarly within the knowledge of the police responsible for the
detainee’s detention.
[66] The underlying consideration is that the detainee is deprived of his or her liberty and
placed under the police's complete control. In Mahlangu and Another v Minister of
Police,19 the Constitutional Court described the arrest of a person as a severe
deprivation of liberty and, more importantly, affirmed that persons in police custody
are dependent upon the police for the protection of their constitutional rights,
including dignity, freedom, and security of person. Thus, once it is established that
the injuries occurred while the detainee was under police control, it is incumbent
upon the police to provide a satisfactory explanation of how those injuries occurred.
[67] In Zealand v Minister of Justice , and Constitutional Development ,20 the
Constitutional Court emph asised the obligation on the State towards persons
deprived of their liberty. This recognises that detention places a person in a
vulnerable position because he or she is deprived of the ability to protect himself or
herself, thereby giving rise to a heigh tened duty on the police to protect a person
under their control. It follows, therefore, that the police official's failure to provide a
coherent and truthful account of how the injuries were sustained in their custody
may weigh significantly against their version.
[68] However, the above does not reverse the onus resting upon a plaintiff, but it has an
important bearing on the evaluation of the evidence. It gives rise to a principle,
grounded in both evidential logic and the constitutional responsibilities of the police,
that where a person sustains injuries while under police control and the police fail to
provide a plausible and coherent explanation for those injuries, that failure
constitutes a material factor in the assessment of probabilities and may justif y an
inference adverse to the police. The strength of that inference will depend on the
inference adverse to the police. The strength of that inference will depend on the
19 2021 (2) SACR 595 (CC).
20 2008 (4) SA 458 (CC) at paras 34, 40 & 45 – 50.
21
circumstances of each case, including the nature of the injuries, the period of control,
and the extent to which the relevant facts are within the police's knowledge.21
[69] In assessing credibility, the Court must have regard to the pleadings and the
admissions contained in the pre‑trial minute, which define and confine the issues for
determination. In the present matter, the plaintiffs ’ case has consistently been that
they w ere assaulted while under police control. While their evidence contains
inconsistencies in the details of the events, those inconsistencies do not detract from
the essential core of their version, nor do they constitute a material departure from
the pleaded case or prejudice the defendants. Such discrepancies are of the kind
that must be weighed in the context of the overall probabilities.
[70] The admission of assault in the pre‑trial minute significantly narrows the enquiry into
whether the plaintiffs’ cause of action is sustainable. As a result, the inquiry is now
more about who, in fact, assaulted the plaintiffs. Put another way, the question is no
longer whether the plaintiffs were assaulted, but by whom. The defendants’ version
must therefore be examined a gainst their own recorded position and the objective
evidence. In this regard, inconsistencies in their account, particularly regarding the
plaintiffs' movement and handling while in custody, bear on the reliability of their
version of the relevant period.
Who assaulted the plaintiffs
[71] Turning to the issue of who assaulted the plaintiffs, it is common cause that during
the period in question the plaintiffs were under the control of members of the South
African Police Service under the leadership of W/O Ramak atsa. In these
circumstances, the factual matrix clearly points to cases in which harm occurred
while the plaintiffs were under police control, thereby engaging the police's
responsibility to account for how that harm occurred. The absence of such an
responsibility to account for how that harm occurred. The absence of such an
21 Minister of Safety and Security v Van Duivenboden 2002 (6) SA 431 (SCA), Lee v Minister of Correctional
Services 2013 (2) SA 144 (CC) at para 53 – 60 ( in this case it was held, incarceration places prisoners in
a position of dependence on the State, which accordingly assumes a heightened duty to safeguard their
dignity, health and bodily integrity. The State must take reasonable measures to prevent foreseeable harm
to inmates and may be held liable where negligent omissions result in injury.)
22
account is not neutral; it is a matter to which weight must be given in evaluating the
probabilities. The question of whether the assault took place in Krugersdorp, as
alleged by the plaintiffs, or in Brixton is of no moment. The fact of the matter is that
after arresting them in Kwa -Thema, they took them to some police station, which
the plaintiffs assume was in Krugersdorp.
[72] The inference advanced by the plaintiffs must, however, be approached with
appropriate caution. It is not sufficient merely to establish t hat injuries were
sustained while in police custody. The Court must be satisfied, on the balance of
probabilities, that the injuries are attributable to the police's conduct. The inference
drawn must be the most plausible explanation of the proven facts, n ot merely one
of several equally possible explanations.
[73] Against this background, the competing versions must be considered. The plaintiffs’
version provides an explanation for the injuries that is consistent with the objective
medical evidence and the circ umstances of their custody. By contrast, the
defendants’ version is confined to a general denial that any assault occurred and
does not engage with the objective evidence. In particular, it fails to provide any
coherent explanation of how the injuries recorded in the J88 reports were sustained
during the period when the plaintiffs were under police control. It is also important to
note that the plaintiffs' material evidence was not seriously challenged during cross-
examination, and thus it stands to be accepted as correct.
[74] In circumstances where the plaintiffs have established that they were under the
exclusive control of the police, that they sustained injuries consistent with assault
during that period, and that the police have failed to provide any plausi ble
explanation for those injuries . Accordingly, t he probabilities favour the plaintiffs ’
version. The defendants ’ denial, unsupported by any explanatory account, is
version. The defendants ’ denial, unsupported by any explanatory account, is
inherently improbable. This conclusion is reinforced by the constitutional obligations
resting upon the police. As emphasised in K v Ministe r of Safety and Security ,22
members of the police are entrusted with the duty to protect persons within their
22 (2005) 26 ILJ 1205 (CC) at para 56.
23
control and to exercise their powers in a manner consistent with the rights to dignity,
freedom, and security of the person. While the present case concerns factual
attribution rather than the scope of vicarious liability, those obligations provide an
important normative context for evaluating the evidence. A failure by police officials
to account for harm occurring under their control is inconsisten t with those
obligations and weighs heavily in the assessment of probabilities.
[75] It is also important to note that, when analysing and weighing the version of the
defendants’ witnesses, as stated earlier, account is taken of the fact that their version
was never put to any of the plaintiffs during cross -examination, and, more
importantly, that the issue of assault had been conceded in the pre-trial minutes.
[76] On a proper application of the principles articulated in Stellenbosch Farmers ’
Winery, read together with the guidance, the only reasonable inference from the
proven facts is that the injuries sustained by the plaintiffs were inflicted while they
were under the control of members of the South African Police Service.
[77] The foregoing analysis demonstrates that the plaintiffs’ evidence was clear, credible,
and compelling. Their version was corroborated by the contents of the J88 medico-
legal report and further supported by the defendants ’ admission in the pre -trial
minutes that the plaintiffs had been assaulted. As to the identity of the perpetrators,
the court is satisfied that, on the totality of the evidence, the assault was perpetrated
by members of the South African Police Service. The plaintiffs sustained their
injuries whilst in police custody from the time of their arrest in the early hours of 22
April 2016 until 25 April 2016. Significantly, the defendants failed to provide any
satisfactory or plausible explanation as to how those injuries were inflicted while the
plaintiffs remained under the exclusiv e control and care of the police. In these
plaintiffs remained under the exclusiv e control and care of the police. In these
circumstances, the only reasonable inference to be drawn is that the police were
responsible for the assault and the consequent injuries sustained by the plaintiffs. It
follows, therefore, that the defendants are liable for such damages as the plaintiffs
are entitled to recover arising from the assault.
24
Separation of issues
[78] As indicated earlier, the parties agreed in their pre-trial minutes that quantum should
be separated from the merits and considered later. In his concluding submission and
the heads of argument, the plaintiffs’ counsel sought to persuade this Court to depart
from that agreement and to consider quantum at the same time as the merits. It is
argued that it is in the interests of justice for the matter to be finally determined
without a separate hearing on quantum. In anticipation of this, the plaintiffs sought
to amend their particulars of claim to abandon the claim for past and future medical
expenses, thereby making it unnecessary to continue separating the two issues.
[79] Rule 33(4) of the Uniform Rules of Court provides for the separation of issues for
trial. Under this Rule, the Court may order the separation of issues of law or fact,
which may be decided separately from any other question, inclu ding by directing
that the question be stayed until others have been disposed of. The order may also
be made pursuant to an application by the parties, often included in the pre -trial
minute, to separate the issues. In this regard, the Court may, in the ex ercise of its
discretion, refuse, vary or revisit the agreement in the interests of justice or
convenience.
[80] Under Rule 33(4), the enquiry is whether the issue sought to be separated can
conveniently be determined apart from the remaining issues in the litigation. In Braaf
v Fedgen Insurance Ltd ,23 the Court emphasised that convenience is directed
primarily at the interests of the Court and only secondarily at the interests of the
litigants. In Tudoric v Tudoric,24 the concept of convenience was held to encompass
not merely the facilitation or easing of the proceedings, but also considerations of
appropriateness in the particular circumstances of the case. It follows that the
separation of issues is not an end in itself, nor is it to be granted merely on request.
separation of issues is not an end in itself, nor is it to be granted merely on request.
Rather, it is an exceptional procedural mechanism to be employed only where it will
serve the interests of justice, expedition and finality. Courts must remain vigilant to
23 1995 (3) SA 938 (C) at 939H – I.
24 1997 (2) SA 246 (W) at 251B – C.
25
avoid the fragmentation of litigation and the attendant risks of piecemeal
adjudication, duplicated evidence, increased costs and the possibility of conflicting
findings.
[81] In the present matter, the determinative consideration is whether sustaining the
separation agreed in the pre -trial will result in the more efficient and appropriat e
disposal of the matter as a whole. The following factors must be weighed when
considering whether to sustain the terms of the pre -trial minutes, which provide for
separation of the issues. It is important to note that the plaintiffs ’ claim is based on
allegations of assault and torture, which resulted in the infringement of the plaintiffs’
section 10 Constitutional rights and, as a result, caused the damages averred in the
particulars of claim. The action was instituted in 2016, and the matter came to t rial
on 4 November 2019. The trial was initially set down for a four -day hearing on the
assumption that it would be concluded within that period.
[82] As stated above at the pre -trial conference, the parties agreed that the issue of
liability be dealt with sepa rately from the damages claim in accordance with rule
33(4) of the Uniform Rules of the Court.
[83] At the close of the plaintiffs ’ case, the defendants raised a point of absolution from
the instance, which was dismissed, and the matter was postponed until it r esumed
some six years later on 18 May 2026. The plaintiffs contend that, as a result, the
initial intention to separate quantum from liability had fallen away because the
plaintiffs gave evidence in court about the injuries they sustained, the pain and
suffering they endured, and their claim for contumelia.
[84] Furthermore, the plaintiffs contend that the defendants failed to disclose any
documents in response to their claim for damages.
[85] Concerning the general damages heading in the plaintiffs ’ claim, regard should be
had to the defendants' admissions that all the expert reports were accepted as
had to the defendants' admissions that all the expert reports were accepted as
truthful in their content and could be admitted in evidence. It follows that the
damages under this heading need not be separated from the merits. Put another
26
way, once the evidence of the injuries and pain suffered was led and the defendants
accepted the plaintiffs' medical reports, the separation of the two issues, insofar as
general damages are concerned, fell away. Accordingly, the only purpose of
separating the issues would, as stated earlier, be for the plaintiffs to prove their past
and future medical costs, which have been abandoned, and thus would be an
exercise in futility.
[86] The defendants opposed the plaintiffs’ request to dispense with the separation and
contended that they conducted the trial on the understanding that quantum would
not be determined alongside the merits.
[87] Having regard to what has already been said regarding the claim under the heading
of general damages, the only issue that remains concerns the purpose of retaining
the damages under the headings of past and future medical expenses when no
dispute exists under those headings.
[88] During the proceedings, the plaintiffs moved to amend their particulars of claim to
abandon the claim for past and f uture medical expenses. The essence of the
amendment was that the plaintiffs withdrew the claim under the heading of past and
future medical expenses. Thus, any attempt by the defendants to lead evidence
under these headings would constitute an abuse of process, thereby frustrating the
final determination of the trial.
[89] It is, thus, clear that it is in the interests of justice that this matter be finalised as soon
as possible and that the plaintiffs' rights of access to court in terms of section 34 of
the Constitution be given effect. Insofar as pain and suffering is concerned, there is
no need to lead evidence, as evidence regarding pain and suffering has already
been given. There is also no need to lead evidence regarding past and future, as
the claim under those headings has been abandoned.
[90] In their initial particulars of claim, each plaintiff claimed a total of R1 202 500.00.
[90] In their initial particulars of claim, each plaintiff claimed a total of R1 202 500.00.
This amount included past and future medical expenses which , as stated above,
27
were subsequently abandoned. The amount claimed by e ach plaintiff is now
R1 100 000.00.
[91] The assessment of general damages is a matter of discretion for the trial court to
exercise. In exercising its discretion, the court may have regard to previous cases,
not as a hard-and-fast rule of general application.
[92] In Road Accident Fund v Marunga25 the Supreme Court of Appeal held that the trial
judge has considerable discretion to award what, in the circumstances, is
considered fair and adequate compensation for the injuries sustained. The Court
further held that aw ards of general damages are not susceptible to precise
calculation and must therefore be determined by the court upon consideration of all
the relevant factors.
[93] In determining an appropriate award of general damages, regard must be had to the
nature and extent of the pain, suffering, humiliation, degradation and impairment of
dignity endured by the plaintiffs. The evidence in the present matter establishes that
both plaintiffs were subjected to a sustained and deliberate course of physical and
psychological abuse whilst in police custody. They were blindfolded or hooded for
extended periods, thereby inducing fear, anxiety and a sense of helplessness. They
were further subjected to assaults involving rifles, fists and kicks, and were
restrained in painful and degrading positions whilst handcuffed.
[94] The first plaintiff endured physical injuries which included pain to his shoulder, back,
chest, legs, hands and thumb. His private parts were squeezed, his limbs were
bound with ropes, and a pole was inserted between his arms and legs whilst he was
tied up. The manner in which he was handcuffed caused swelling and pain to his
hands. He was transported with a tightly fitting bag over his head, restricting his
breathing and aggravating his distress. The evidence further reveals that the effects
25 2003 (5) SA 164 (SCA) (26 March 2003) at para 23.
28
of the assault were not transient, as it took him approximately five months to recover
from the injuries sustained.
[95] The second plaintiff was similarly subjected to serious abuse and degrading
treatment. He was transported w ith a hood over his head for an extended period,
suspended in a manner which left his legs hanging, and repeatedly caused to lose
his balance whilst restrained. He was struck with a rifle on his stomach and leg,
suffered pain in his hand due to excessively tightened handcuffs, and was assaulted
notwithstanding that he had informed the police of his previous hernia operation.
The pointing of a firearm at his stomach whilst in police custody further heightened
the fear, intimidation and emotional trauma to which he was subjected.
[96] The assaults perpetrated upon the plaintiffs were not isolated acts of violence. They
formed part of a prolonged pattern of conduct designed to intimidate, humiliate and
degrade them. The conduct of the police officers violated the pl aintiffs' bodily
integrity, dignity and constitutional rights in a particularly egregious manner. In
assessing quantum, the Court must therefore compensate not only for the physical
pain and suffering endured by the plaintiffs, but also for the indignity, humiliation,
fear and emotional trauma attendant upon their treatment whilst under the control of
law enforcement officials. These factors constitute significant aggravating
circumstances warranting a substantial award of general damages.
[97] Whilst the plaint iffs are entitled to be fairly compensated for the pain, suffering,
humiliation, shock, emotional trauma and impairment of dignity caused by the
police's wrongful conduct, this Court is mindful that an award of general damages is
compensatory, not punitive . The assessment of such damages is intended to
provide fair and reasonable compensation for the injured party, not to enrich the
claimant. In this regard, the Supreme Court of Appeal has repeatedly emphasised
claimant. In this regard, the Supreme Court of Appeal has repeatedly emphasised
that awards of general damages must be fair to both parties.26
[98] The Court must therefore strike an appropriate balance between, on the one hand,
adequately compensating the plaintiffs for the serious violations of their dignity,
26 Road Accident Fund v Marunga 2003 (5) SA 164 (SCA).
29
bodily integrity and personal freedom, and, on the other hand, ensuring tha t the
award remains fair, reasonable and proportionate to the harm suffered. To
emphasise, the purpose of the award is neither to punish the defendant nor to enrich
the plaintiffs, but to afford proper solatium for the injuries and indignities they have
sustained.
Conclusion
[99] In my view, the facts and circumstances of this case justify a departure from the
parties' agreement to separate the issues. It is in the interests of justice, as well as
the convenient and expeditious disposal of the matter, that the issues of liability and
quantum be determined simultaneously. As appears from the evidence and the
concessions made during the proceedings, the only remaining issue concerns the
assessment of general damages, the plaintiffs having abandoned all claims for past
and future patrimonial losses. In these circumstances, there is no practical purpose
in maintaining the separation of issues, and determining the entire matter at this
stage will best serve the interests of the parties and the administration of justice.
[100] It is clear from the above analysis that the plaintiffs’ evidence concerning the assault
and the injuries sustained was clear and satisfactory and was corroborated by the
J88 report. The plaintiffs have accordingly estab lished both the occurrence of the
assault and the bodily injuries they consequently suffered.
[101] In the circumstances, I am of the view that both plaintiffs have proved on the balance
of probabilities that they were assaulted by the police and thus qualify for general
damages.
Order
[102] In the result, the following order is made:
1. The agreement recorded in the pre -trial minutes separating the issues of
merits and quantum in terms of Rule 33(4) of the Uniform Rules of Court is
31
For the Plaintiffs: R G Cohen instructed by Glynnis Cohen Attorneys
For the Defendants: S Sethene instructed by State Attorneys, Johannesburg
Date of Hearing: 4 to 7 November 2019 and 18 to 22 May 2026.
Date of Judgment: 21 August 2026