Kulinji v Minister of Defence (HC 9931 of 2003) [2006] ZWHHC 40 (30 May 2006)

HH 40-2006 HC 9931-03 SONILE KULINJI versus THE MINISTER OF DEFENCE HIGH COURT OF ZIMBABWE GARWE JP HARARE, 13-14 October 2005, 27-28 February and 31 May 2006 Miss Gorejena, for the plaintiff Mr Jena, for the defendant GARWE JP: The plaintiff in this matter seeks payment of the sum $25 million being damages for pain and suffering and contumelia arising out of an assault she alleges was perpetrated upon her person by members of the Zimbabwe National Army. The defendant denies that members of the defence forces assaulted the plaintiff and consequently denies any liability for any assault the plaintiff may have suffered. It is not in dispute that at the relevant time there were disturbances in various high density suburbs and that as a result members of the police force, accompanied by members of the army, were deployed to the affected areas to quell those disturbances and to ensure law and order. The area headquarters of these patrols was at Mabvuku Police Station and officers going out on these patrols would operate from the Police Station. It is also common cause that police officers and members of the army carried out patrols in Mabvuku Township, where the plaintiff resides, on the night in question. The plaintiff alleges that members of the army broke into her house that night after which they subjected her to a brutal assault. The defendant denies this. At the commencement of the trial both parties advised the court that the issue of quantum was no longer in issue and that the only issue for determination by the court was one of liability. During the course of the trial a medical report prepared by Dr Frances Ann HH 40-2006 Lovemore was also admitted by consent. The affidavit states that the plaintiff sustained the following injuries (1) deep bruising on the left breast, posterior shoulder, lower back and right anterior thigh and left anterior medial thigh (2) swollen and tender tight eye with swelling (3) bruise in posterior vaginal wall consistent with assault with blunt object, such as rifle butt and barrel. The plaintiff gave evidence. She is a married and resides at 14 Hande Street, New Mabvuku. On the day in question she and her family had retired to bed when they were awoken by the noise of people jumping over the gate. Someone started hitting the door to the house violently and her husband then opened the door. Some men in army uniform holding firearms entered the house. She described the attire as green military camouflage uniform. They asked who Sonile Kulinji was. When she responded she was immediately struck above the right eye. She could not say what instrument was used. She was pulled to the lounge. Her husband was pushed into a spare bedroom. Some of the officers went into the bedroom and others some into the kitchen whilst others were assaulting her. She tried to hold onto one of them because of the injury she had sustained but was shrugged off and fell to the floor. They held her and made her sit down, legs astride. The pointed a firearm at her genitals and threatened to shoot her in the genitals if she did not disclose how many sons she had. She told the court that at this stage she passed stool. She asked for permission to go to the toilet. They then accompanied her to the toilet. From there they proceeded to her son’s place of residence about 250 metres away. On the way they were assaulting her. When they got to her son’s place of residence they found that the shack he had been staying in had been destroyed and her son had been taken out and made to lie on the tarmac. She saw soldiers beating him. She crawled and managed to escape into a maize field. She saw two army vehicles facing each other. Thereafter the soldiers left. She walked back HH 40-2006 home cautiously and found the vehicles gone. She found the house in disarray. On the injuries she sustained she told the court she sustained a tear when they poked her on the genitals with a firearm. She also sustained a swelling above the right eye, a swelling on the chest, a scar on the left breast, bruises on the thighs and bruises on the back of the trunk. She told the court she was hospitalized for three weeks and was attended to by Dr Lovemore. Asked why she did not report the assault, she told the court she could not have done so as the soldiers who assaulted her were based at the police station. She told the court she identified her assailants as soldiers. They wore army uniform which she described as camouflage green and brown in colour and what appeared to the helmets. They carried firearms and button sticks. The plaintiff called her husband, Timothy Kulinji as her witness. His evidence was as follows. He saw an army vehicle in green camouflage colours behind his house. Two soldiers in army uniforms and wearing caps jumped into the yard. More soldiers came into the yard from different directions. When her wife identified herself, she was struck with a button stick on the face. The soldiers also assaulted his daughter and thereafter pulled her into her room. He and the plaintiff were taken into the lounge where plaintiff was struck with a firearm butt in the pelvic region. He was then pushed into his daughter’s bedroom and from there he heard his wife and daughter screaming from different directions. It was his evidence that the soldiers wore green camouflage uniform and caps. Asked why his evidence differed from that of the plaintiff on the attire worn by the soldiers on the head, he told the court the plaintiff was being assaulted and did not have as good an opportunity as he did to observe. The plaintiff then closed her case. HH 40-2006 The defendant called only one witness, Major Temba Mangena Sibanda. He was the Officer Commanding ‘C’ company mechanized battalion and at the time he and other soldiers had been deployed to Mabvuku to assist the police in maintaining law and order. He was in charge of the soldiers and his headquarters was at Mabvuku Police Station. The incident giving rise to these proceedings was never reported to him and therefore no such incident took part in his view. As soldiers their role was to complement the police. On the day in question soldiers were wearing green camouflage with black berets. No helmets were worn on this occasion as these are worn on special assignments where there is risk of injury from fragmentation. The soldiers carried AK47 rifles and MAG rifles mounted on an amoured personnel carrier. It was his evidence that no report of the assault was ever made to him. The report was therefore not investigated. Under cross-examination he told the court he had had sixty two men under his command. He would have two patrols at a time and maintained communication with the patrols by radio. The armoured personnel carriers are 1,2 metres high, have four wheels and are green in colour. They had mounted machine guns on top of the cab where the driver seats. He admitted that the area where the plaintiff stays was within the general area of the patrol. Soldiers on patrol would operate under the aegis of the police. The police would wear normal police attire – either khaki or blue denims and matching blue caps. Support Unit details who were also involved would in addition have assault rifles. The police would also carry button sticks. Asked who else besides the soldiers would have assaulted the plaintiff he told the court he could not say but perhaps there were “imposters” in the area. By consent the evidence of the Police Offer Commanding Mabvuku Area at the time was admitted. That evidence is to the effect that there was no specific deployment of the joint law and HH 40-2006 order personnel to the plaintiff’s house. The instruction was for the personnel to patrol the streets. That was the defendant’s case. That the plaintiff was injured is not in dispute, nor the extent of her injuries. The only issue for determination is who assaulted her. The plaintiff was an emotional witness. At one stage she broke down almost completely as she narrated the events of the night in question. There were times she was difficult and did not seem to appreciate her role as a witness. There were times she would deny well known facts such as for example the fact that some police officers have been found on the wrong side of the law. Her husband, who was the second witness appeared much calmer. There was a noticeable discrepancy between the evidence of the two on the headgear worn by the soldiers at the time. The plaintiff described the gear as a helmet whilst her husband described it as a cap. Major Sibanda told the court the soldiers wore black barets as well as army camouflage uniforms. On a proper consideration of the evidence, I do not consider the discrepancy in the evidence of the plaintiff and her husband to be material. Both describe the assailants as soldiers, in camouflage, using green military vehicles and holding rifles. It is not in dispute that the army details on patrol on the night in question wore green camouflage, used green military vehicles and that they had rifles. It is also not in dispute that they were accompanying police officers who were wearing either the normal police uniform or blue denims. Major Sibanda told the court the Support Unit details would also carry button sticks and would wear blue caps. On the facts before the court it is inconceivable and highly unlikely that anyone else other than members of the army would have assaulted the plaintiff. That she was assaulted is beyond question. The injuries she sustained, though not of a permanent HH 40-2006 nature, were serious. The probabilities certainly favour the plaintiff’s version. It is highly improbable that there could have been an imposter, as was suggested, in military uniform and travelling in a military vehicle, who could have perpetrated the assault. It is common cause members of the army, wearing army uniform and accompanied by the police, some of whom may have carried button sticks, carried out patrols in the Mabvuku area that night. On balance it must have been members of the army on patrol who must have carried out the assault. I find therefore that the plaintiff must have been assaulted by members of the army and that the evidence of Major Sibanda does not in fact take the matter any further. I am not persuaded that anyone else could have perpetrated the assault. In the result I make the following order. 1. Judgment be and is hereby granted in favour of the plaintiff in the sum of $25 million together with interest thereon at the prescribed rate from the date of service of summons to the date of final payment. 2. The defendant is to pay the costs of suit. HH 40-2006 Zimbabwe Lawyers for Human Rights, plaintiff’s legal practitioners. Civil Division of the Attorney-General’s Office, defendant’s legal practitioners.