Makhumsha v Minister of Safety and Security: Republic of South Africa and Another (92/2010) [2010] ZAECMHC 30 (21 October 2010)

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE - MTHATHA) CASE NO: 92/2010 DATE HEARD: 19/10/10 DATE DELIVERED: 21/10/10 NOT REPORTABLE In the matter between: NOFUNDILE MAKHUMSHA …................................................................APPLICANT and MINISTER OF SAFETY & SECURITY: REPUBLIC OF SOUTH AFRICA …...............................................1st RESPONDENT THE STATION COMMISSIONER, BUTTERWORTH POLICE STATION ….......................................2nd RESPONDENT The applicant had been injured in a motor vehicle accident. Despite demand, the police at the Butterworth police station refused to investigate the accident. When this application was heard, and despite opposing it, the respondents agreed to an order that they be directed to investigate the accident. They argued, however, that each party should pay their own costs. The court held that the applicant had achieved substantial success, the respondents had failed to do their duty and had opposed the application, adopting an obfuscatory approach. In these circumstances, they were ordered to investigate the accident and to pay the applicant’s costs. JUDGMENT PLASKET J: [1] Section 205(3) of the Constitution defines the objects of the police service contemplated by s 205(1), and provided for in the South African Police Service Act 68 of 1995, as being ‘to prevent, combat and investigate crime, to maintain public order, to protect and secure the inhabitants of the Republic and their property, and to uphold and enforce the law’. This case is a sorry tale of abject failure on the part of policemen stationed at the Butterworth police station to do their duty. [2] According to the founding affidavit (which is, strangely, deposed to by the applicant’s attorney, rather than by the applicant herself) the applicant was injured in a motor vehicle accident on 6 June 2009 at Zazulwane Administrative Area, Butterworth. She was treated in hospital thereafter, her medical records attached to the founding affidavit reflecting treatment from 6 June 2009. Her attorneys wrote to the Station Commissioner of the Butterworth police station to ask for a copy of the motor vehicle accident report, diagrams and sketch plans of the scene of the accident and statements of witnesses. This they did on 7 July 2009. They never received a response. [3] The applicant went to the Accident Unit at the Butterworth police station on numerous occasions, presumably to make a statement, but on each occasion was told that the investigating officer was not available. It can be accepted that when a person is injured in a motor vehicle accident, an inference arises that someone or other has driven recklessly or negligently. That being so, in these circumstances, there was a case to be investigated by the police. [4] Showing utter indifference to the plight of the applicant and to their duties, as members of the police service, the police at Butterworth steadfastly refused to investigate the accident in which the applicant was injured. They maintained this attitude In the face the number of letters sent by the applicant’s attorneys to the Station Commissioner, the Provincial Commissioner and the Minister of Safety and Security. Eventually, the applicant’s attorneys launched this application. [5] In it the applicant applied, curiously, for relief that took the form of a rule nisi without any return day. The relief sought envisaged two end results: the compelling of the Station Commissioner to investigate the accident and then to provide the applicant’s attorneys with copies of the product of the investigation. [6] The second aspect was predicated upon the right of access to information which is given effect to by the Promotion of Access to Information Act 2 of 2000. Mr Hobbs, who appeared for the applicant, wisely abandoned this leg of the relief and only sought an order to compel the respondents to investigate the accident and an order for costs of suit. Mr Kunju, who appeared for the respondents, agreed in principle to the first order. He wanted minor alterations to it. In my view, those alterations take the matter no further and are not necessary. He did not agree to the costs order and argued that each party should pay their own costs. The question of costs is the only

issue that I have to decide. [7] In my view, the applicant is entitled to her costs. In the first place she has achieved substantial success. Secondly, it is common cause that the respondents did not so much as lift a finger to assist the applicant despite being duty-bound to investigate a case of reckless or negligent driving on the part of the driver who injured the applicant. (All that they did was to fine someone for driving without a licence in respect of an incident that occurred on 20 June 2009.) Thirdly, far from doing their plain duty when their failings were brought to their attention, the respondents opposed this application and put up an obfuscatory answering affidavit in which the deponent, a legal officer, cynically said that he was ‘unable to assist the applicant with what she is seeking to get, although I would love to.’ [8] In these circumstances the respondents can consider themselves fortunate that the applicant did not ask for attorney and client costs (although such a costs order was originally sought in the Notice of Motion). I dare say that if this type of maladministration continues at the Butterworth police station, punitive costs orders may, in future, become necessary. [9] That said, I make the following order: 1. The respondents are directed to investigate the circumstances of the motor vehicle collision which occurred, and in which the applicant was injured, at Zazulwana Administrative Area, Butterworth on 6 June 2009 and to produce a motor vehicle accident report, sketch plan, diagrams and statements from witnesses in respect of the motor vehicle collision. 2. The respondents are directed to pay the costs of this application jointly and severally, the one paying the other to be absolved from payment. ___________________ C PLASKET JUDGE OF THE HIGH COURT APPEARANCES For applicant: Mr J. Hobbs, instructed by Jolwana Mgidlana Inc, Mthatha For respondent: Mr V. Kunju, instructed by the State Attorney, Mthatha

(EASTERN CAPE - MTHATHA)

CASE NO: 92/2010

DATE HEARD: 19/10/10

DATE DELIVERED: 21/10/10

NOT REPORTABLE

In the matter between:

NOFUNDILE MAKHUMSHA …................................................................APPLICANT

and

MINISTER OF SAFETY & SECURITY:

REPUBLIC OF SOUTH AFRICA …...............................................1st RESPONDENT

THE STATION COMMISSIONER,

BUTTERWORTH POLICE STATION ….......................................2nd RESPONDENT

The applicant had been injured in a motor vehicle accident. Despite demand, the police at the Butterworth police station refused to investigate the accident. When this application was heard, and despite opposing it, the respondents agreed to an order that they be directed to investigate the accident. They argued, however, that each party should pay their own costs. The court held that the applicant had achieved substantial success, the respondents had failed to do their duty and had opposed the application, adopting an obfuscatory approach. In these circumstances, they were ordered to investigate the accident and to pay the applicant’s costs.

JUDGMENT

PLASKET J:

[1] Section 205(3) of the Constitution defines the objects of the police service contemplated by s 205(1), and provided for in the South African Police Service Act 68 of 1995, as being ‘to prevent, combat and investigate crime, to maintain public order, to protect and secure the inhabitants of the Republic and their property, and to uphold and enforce the law’. This case is a sorry tale of abject failure on the part of policemen stationed at the Butterworth police station to do their duty.

[2] According to the founding affidavit (which is, strangely, deposed to by the applicant’s attorney, rather than by the applicant herself) the applicant was injured in a motor vehicle accident on 6 June 2009 at Zazulwane Administrative Area, Butterworth. She was treated in hospital thereafter, her medical records attached to the founding affidavit reflecting treatment from 6 June 2009. Her attorneys wrote to the Station Commissioner of the Butterworth police station to ask for a copy of the motor vehicle accident report, diagrams and sketch plans of the scene of the accident and statements of witnesses. This they did on 7 July 2009. They never received a response.

[3] The applicant went to the Accident Unit at the Butterworth police station on numerous occasions, presumably to make a statement, but on each occasion was told that the investigating officer was not available. It can be accepted that when a person is injured in a motor vehicle accident, an inference arises that someone or other has driven recklessly or negligently. That being so, in these circumstances, there was a case to be investigated by the police.

[4] Showing utter indifference to the plight of the applicant and to their duties, as members of the police service, the police at Butterworth steadfastly refused to investigate the accident in which the applicant was injured. They maintained this attitude In the face the number of letters sent by the applicant’s attorneys to the Station Commissioner, the Provincial Commissioner and the Minister of Safety and Security. Eventually, the applicant’s attorneys launched this application.

[5] In it the applicant applied, curiously, for relief that took the form of a rule nisi without any return day. The relief sought envisaged two end results: the compelling of the Station Commissioner to investigate the accident and then to provide the applicant’s attorneys with copies of the product of the investigation.

[6] The second aspect was predicated upon the right of access to information which is given effect to by the Promotion of Access to Information Act 2 of 2000. Mr Hobbs, who appeared for the applicant, wisely abandoned this leg of the relief and only sought an order to compel the respondents to investigate the accident and an order for costs of suit. Mr Kunju, who appeared for the respondents, agreed in principle to the first order. He wanted minor alterations to it. In my view, those alterations take the matter no further and are not necessary. He did not agree to the costs order and argued that each party should pay their own costs. The question of costs is the only

issue that I have to decide.

[7] In my view, the applicant is entitled to her costs. In the first place she has achieved substantial success. Secondly, it is common cause that the respondents did not so much as lift a finger to assist the applicant despite being duty-bound to investigate a case of reckless or negligent driving on the part of the driver who injured the applicant. (All that they did was to fine someone for driving without a licence in respect of an incident that occurred on 20 June 2009.) Thirdly, far from doing their plain duty when their failings were brought to their attention, the respondents opposed this application and put up an obfuscatory answering affidavit in which the deponent, a legal officer, cynically said that he was ‘unable to assist the applicant with what she is seeking to get, although I would love to.’

[8] In these circumstances the respondents can consider themselves fortunate that the applicant did not ask for attorney and client costs (although such a costs order was originally sought in the Notice of Motion). I dare say that if this type of maladministration continues at the Butterworth police station, punitive costs orders may, in future, become necessary.

[9] That said, I make the following order:

1. The respondents are directed to investigate the circumstances of the motor vehicle collision which occurred, and in which the applicant was injured, at Zazulwana Administrative Area, Butterworth on 6 June 2009 and to produce a motor vehicle accident report, sketch plan, diagrams and statements from witnesses in respect of the motor vehicle collision.

2. The respondents are directed to pay the costs of this application jointly and severally, the one paying the other to be absolved from payment.

___________________

C PLASKET

JUDGE OF THE HIGH COURT

APPEARANCES

For applicant: Mr J. Hobbs, instructed by Jolwana Mgidlana Inc, Mthatha

For respondent: Mr V. Kunju, instructed by the State Attorney, Mthatha