Dungelo v Minister Of Police and Another (461/2013) [2014] ZAECMHC 23 (17 April 2014)

IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE LOCAL DIVISION, MTHATHA

CASE NO: 461/2013

NOT REPORTABLE

In the matter between

SIYABULELA DUNGELO

Plaintiff

and

MINISTER OF POLICE First

Defendant

MR MBEKWANA Second

Defendant

JUDGMENT

HARTLE J

1. The plaintiff claims damages against the defendants arising upon an alleged unlawful assault upon the plaintiff in the Chris Hani Informal Settlement Area, Mthatha, on 6 December 2012 by members of the South African Police Service, acting in the course and scope of their employment with the service, one of whom is known to the plaintiff and cited as the second defendant.

2. The defendants, whilst conceding that the plaintiff was assaulted and injured on the day in question, deny that they perpetrated the assault upon the plaintiff.

3. At the outset of the trial I granted an order separating quantum from merits. The only issue which accordingly falls to be determined by this court, is whether the plaintiff was assaulted by members of the South African Police Service including the second defendant.

4. A bundle of medical records was handed in by consent marked Exhibit 1. These reflect that the plaintiff was examined at the casualty department of the Mthatha General Hospital on 6 December 2012 at 17h25 by a Dr Noordien. He ostensibly presented with pain on the right side of his head in the temporal area. He also exhibited abrasions over the right temporal area and a bilateral subconjuctival haemorrhage to the right eyelid which also appeared to be swollen. The conclusion noted is that he sustained “soft tissue injury” to his head. It bears noting that he contemporaneously reported to the examining physician that he had been assaulted by the police.

5. Before I turn to deal with the evidence I mention that prior to the defendant’s concession that the plaintiff was in fact

assaulted, they originally pleaded a bare denial of the assault. However they purported to amplify the denial as follows:

‘… Second Defendant responded to a complaint that was reported at Chris Hani Park. The Second Defendant then met Plaintiff who was reported to have robbed complainant’s cellphone. When Defendant asked as to where complainant’s phone was, Plaintiff said to second Defendant that the phone was at his home. Second Defendant then asked if Plaintiff can accompany him to his place in order to fetch the phone in question. Plaintiff agreed and second Defendant drove to the Plaintiff’s place. On their arrival (at) his place, the plaintiff took out complainant’s phone and handed it to the complainant. Because complainant did not want to open the case and was only interested in getting her phone back, no case was opened as a result Plaintiff was not arrested and detained.’

6. The effect of the amplification above is that, despite the denial at the time of the assault, the defendants placed themselves on the scene at the plaintiff’s home and admitted to having met him somewhere else before driving him in a police vehicle to his home where a cell phone was handed over.

7. The plaintiff put this explanation into context when he testified. He agreed that he was in possession of a cell phone which belonged to a woman he was involved with. When the police arrived in her company at a tavern where he was relaxing on 6 December 2012 he knew that the game was up and that he was required to give the phone back to her. He thus approached the motor vehicle with this understanding in mind. He was forced into the vehicle by a policeman who was sitting in front of the vehicle driven at the time by the second defendant (who was present in court and who he made a point of identifying). It is not clear where what happened, whether at the tavern or at his home where he was later driven to, but the plaintiff says that he was hit and kicked on his face, head and eyes by a booted foot. Inside his house he was also continually assaulted with a stick - about his head and face to such an extent that he could hardly get to where he had placed the phone under a pillow. Eventually he managed to retrieve it and the phone was handed over to the complainant. They then left him behind, locked in his own home. He broke out of his flat and proceeded immediately by taxi to report the incident at the Central police station. From there he proceeded to the hospital where he was examined and treated for his injuries. Under cross examination he rejected the notion that he was under the influence of alcohol at the time. He explained that he was confused by why the police had assaulted him when he was giving his full co-operation. He did not know the second defendant before the incident, and had no reason to falsely implicate him.

8. Although one would have expected both officers who were alleged by the plaintiff to have been responsible for assaulting him to give their account of the incident, only the second defendant testified on behalf of the defendants. He claimed that the complainant had arrived at the station to report a case of domestic violence. He did not explain the relevance of the cell phone and how it came about exactly that he and his colleague (who he was coy about naming) came to confront the plaintiff in the manner in which they did or why it was necessary to do so at all if they did not intend arresting him. No mention by him was made of a complaint of robbery, as was pleaded in the amplification referred to above. He explained that they, in the company of the complainant, went to a tavern to find the plaintiff. There they called out his name. When he came out, the complainant herself requested him to hand over her phone. He got into the vehicle and sat at the back with the complainant. They proceeded to his home. There all of them alighted from the motor vehicle and entered the house where nothing happened except that the plaintiff voluntarily handed over the phone to the complainant and they left to take her to her place of residence which is nearby. He hastened to add that the plaintiff was “showing signs of consuming liquor” and also remarked that he was talking loudly in his house, which is why their parting comment to him was that they should leave him there in his own home. He denied assaulting the plaintiff but could also not explain what might have caused his injuries. Under cross

examination he claimed to be puzzled by the complaint of assault against the police. He confirmed that when they arrived at his home, or even prior thereto when they first met him at the tavern, the plaintiff was uninjured.

9. The court is faced with mutually destructive versions concerning the critical issue in this matter, namely whether the police assaulted the plaintiff in the manner testified to by him. The correct approach to be adopted in such a situation is set out in National

Employer’s General Insurance v Jagers[1] as follows:

“It seems to me, with respect, that in any civil case, as in any criminal case, the onus can ordinarily only be discharged by adducing credible evidence to support the case of the party on whom the onus rests. In a civil case the onus is obviously not as heavy as it is in a criminal case, but nevertheless where the onus rests on the plaintiff as in the present case, and where there are two mutually destructive stories, he can only succeed if he satisfies the Court on a preponderance of probabilities that his version is true and accurate and therefore acceptable, and that the other version advanced by the defendant is therefore false or mistaken and falls to be rejected. In deciding whether that evidence is true or not the Court will weigh up and test the plaintiff's allegations against the general probabilities. The estimate of the credibility of a witness will therefore be inextricably bound up with a consideration of the probabilities of the case and, if the balance of probabilities favours the plaintiff, then the Court will accept his version as being probably true. If however the probabilities are evenly balanced in the sense that they do not favour the plaintiff's case any more than they do the defendant's, the plaintiff can only succeed if the Court nevertheless believes him and is satisfied that his evidence is true and that the defendant's version is false.”

10. It is trite that the onus rests on the plaintiff to prove the assault contended for and that the second defendant, and another member of the South African Police at least, were responsible.

11. Although the plaintiff appeared to gild the lily somewhat concerning the extent of the assault upon him, his evidence is largely

consistent with the probabilities.

12. It is common cause that the second defendant, in the company of another colleague and the complainant, arrived at the tavern where the plaintiff was relaxing and that all of them thereafter went to his house where the cell phone was retrieved. The complainant was evidently unhappy about him having her phone such as the extent that she found it necessary to involve the police in order to recover it. Before his interaction with the police, the plaintiff was free of injuries. Shortly after they left his home, he was sporting serious tissue injuries and abrasions consistent at least with being kicked by a booted foot and, not impossibly so, being beaten with a stick. He was locked in his house after the incident, but did not hesitate, once he had freed himself, to report the matter to the police and thereupon to seek treatment for his injuries. The second defendant who he named, was unknown to him before the incident.

13. As I observed above it is my view that the plaintiff somewhat exaggerated the attack upon him and creatively sought to ameliorate

his error – when it was put to him during cross examination that his evidence of the extent of the attack upon him was improbable, by suggesting that one’s leverage with a stick in a flat where the ceiling was quite low was restricted so that the blows

would not fall hard. Fortunately for him, however, the fact that he was assaulted is consistent with the medical evidence, and the rest of his evidence too is largely corroborated by that of the second defendant’s, even, for example, his account of being locked up in his home after. The second defendant did not challenge this evidence at all. On the contrary, he felt constrained to provide a reason for leaving the plaintiff in his home, I believe too that the plaintiff was somewhat coy about admitting upfront that he had stolen the complainant’s phone and the extent to which he co-operated with the police, but again it is not in dispute how it came about that the police camel to be involved.

14. The second defendant’s evidence abounded with flaws and was inconsistent even with the case pleaded by the defendants. If the complainant had laid a charge of domestic violence as testified to by the second defendant (which is incidentally not consistent with the excerpt from amplification reproduced above) why were the police accompanying her to collect a phone? There was simply no explanation from the second defendant as to the circumstances under which they came to confront the plaintiff on the basis which they did, or why they pursued him with such vigour instead of just opening a docket and arresting him for “domestic violence” (sic). The colleague - who it is common knowledge was in his company at the time, was not identified (neither his failure to testify explained) and the second defendant was vague about time and detail critical to their case, or at least to the theory of their case which they by implication sought to promote, viz that the plaintiff was drunk and could have sustained the injuries anywhere but while he was in their company. The second defendant’s evidence also does not explain why they basically let the complainant take the law into her own hands, as it were, by allowing her to demand her cell phone from the plaintiff in their presence. His evidence also does not explain convincingly why after their interaction with the plaintiff, he ended up being injured. Neither did the second defendant impress me as a forthcoming witness. He was vague and concise to the point of concealing details which he had no reason, on his version, not to declare openly. No doubt his brevity and lack of disclosure had everything to do with saving his and his colleague’s own skin. If they had not assaulted the plaintiff on their version, there would have been no reason to hide the truth from the court. I accordingly have no hesitation in rejecting his evidence as false.

15. It seems to me therefore, on balance of probabilities, that the plaintiff has adduced acceptable evidence, which is probably true that he was unlawfully assaulted by the second defendant and his unnamed colleague, both of whom it is common cause are members of the South African Police Service and who were at the time acting within the course and scope of their employment with the first defendant.

16. In the result I find that the defendants are liable to compensate the plaintiff for such damages arising from the unlawful assault as may be proven by him.

_________________

B HARTLE

JUDGE OF THE HIGH COURT

DATE OF HEARING : 16 April 2014

DATE OF JUDGMENT: 17 April 2014

Appearances:

For the Plaintiff : Mr Kunju instructed by S Booi & Sons Attorneys, Mthatha, ref. SN/nm/CIV-384.

For the respondent: Mr Nabela instructed by The State Attorney, Mthatha, ref. 250/13-A4.

[1] 1984 (4) 437 () at 440 D – G.