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/SG

IN THE HIGH COURT OF SOUTH AFRICA

(TRANSVAAL PROVINCIAL DIVISION)

DATE: 24/01/2008

CASE NO: 819/2004

UNREPORTABLE

In the matter between:

JUDAS MABENA 1^ST PLAINTIFF

ANNAH MABENA 2^ND PLAINTIFF

JOEL MAHLANGU 3^RD PLAINTIFF

IVY MABENA 4^TH PLAINTIFF

And

THE MINISTER OF SAFETY

AND SECURITY 1^ST DEFENDANT

ALMOND MAHLANGU 2^ND DEFENDANT

MR MTHOMBENI 3^RD DEFENDANT

MR BABEDI 4^TH DEFENDANT

ABETNICO GULE 5^TH DEFENDANT

JUDGMENT

PRINSLOO, J

[1] This trial came before me and lasted some three days. Mr Jacobs appeared for the plaintiffs and Mr Mojapelo for the defendants.

Introduction and background:

[2] The first plaintiff and the second plaintiff are unemployed pensioners and married to one another. They are both 68 years old.

[3] The third plaintiff was a family friend, but he has passed away and the claims instituted on his behalf were dismissed by default as a result thereof.

[4] The fourth plaintiff is the daughter of the first and second plaintiffs, 30 years old and also unemployed. She stays with her parents in the family home known as stand 1420 Moloto, Kwa Mhlanga, Mpumalanga.

[5] The first defendant is the Minister of Safety and Security, cited and sued in his official capacity.

[6] The second, third, fourth and fifth defendants are police officers, employed by the first defendant. It is common cause that the policeman defendants were acting in the course and scope of their employment with the minister at all relevant times. For the sake of brevity, I shall refer to these four defendants as “number 2”, “number 3”, “number 4” and “number 5” respectively.

[7] The various damages claims instituted by the first, second and fourth plaintiffs (also the claims by the third plaintiff, which no longer require any comment for the reasons mentioned) flow from events which took place at the aforesaid residence of the plaintiffs on 3 August 2003.

[8] In a nutshell, it can be said that the plaintiffs alleged that the policemen entered their premises at about 14h00 on the Sunday afternoon. They alleged that they were looking for a son of the first and second plaintiffs who had escaped from prison, and in the process they assaulted the first and second plaintiffs and also threatened, insulted and defamed the fourth plaintiff in the presence of members of the community who were watching the proceedings. After the departure of the police, the first and second plaintiffs went to the clinic for medical help and on their way to the police station to lay a charge, they were arrested by number 2 and another policeman. They were detained for two days and appeared in court on the third day. Nothing came of the criminal case.

[9] The defendants admit that they were at the premises on the day in question (with the exception of number 4, who was allegedly off duty at the time and not present) but deny the alleged assaults and defamation. The defendants admit that they went to the premises to search for the escapee but their case is that the plaintiffs prevented them from entering the house and they left the premises after a short period. It is admitted that the first and second plaintiffs were arrested and detained for two days but it is denied that the arrest and detention was unlawful. It is common cause that the arrest took place without a warrant.

[10] It is not disputed that the action was timeously instituted and that the statutory requirements, including the provisions of section 57 of the Police Act, 58 of 1995, were met.

The claims:

[11] I shall deal with the five claims, as they appear in the summons, in the same order.

[12] Claims 3 and 4 have fallen away with the passing of the third plaintiff. This leaves only claims 1, 2 and 5.

[13] Claim 1 is the defamation claim of the fourth plaintiff. She claims damages in the amount of R50 000.00. Details will be described more fully when the evidence is summarised.

[14] Claim 2 is a joint claim in the amount of R75 000.00 for damages by the first and second plaintiffs flowing from the alleged assault. Provision is also made for contumelia.

Details will be described more fully when the evidence is summarised.

[15] With respect to the pleader, the particulars are framed in the somewhat unusual form of a joint claim. In my view, this is procedurally permissible in view of the provisions of Uniform Rule 10, but, perhaps, one would have expected two separate claims by the two plaintiffs flowing from the separate assaults allegedly perpetrated on them. Nevertheless, given the nature of the pleading, this claim will be dealt with as a joint claim.

[16] Claim 5 (the last remaining claim) is damages claimed by the first and second plaintiffs for alleged unlawful arrest and detention. In this instance they allege having “respectively” suffered damages in the amount of R50 000.00 and the prayer at the end of the summons is for an amount of R100 000.00, so that this claim can procedurally be treated on the basis of two separate damages claims of R50 000.00 each.

The evidence:

[17] Judas Mabena, the first plaintiff, testified that he is an unemployed 68 year old pensioner. He is frail in appearance. He still stays in the same house in Moloto.

[18] On 3 August 2003 the police arrived at his property. He was sitting outside when they arrived. They walked passed him into the house. His wife, Annah, the second plaintiff, asked them what was happening. They said they were looking for the couple’s son who had allegedly escaped from detention. He told them that they know very well that the son has his own residence and he was arrested in that house (not the residence of the plaintiffs) in the first place.

[19] In his evidence, the first plaintiff mentioned number 2, number 3 and number 5 by name. Number 4 he described only as “Jack” which is in fact the first name of number 4. He said they were all present.

[20] When he told the police his son was not there and that they knew where he stayed they swore again and said “I’m talking shit”. This somewhat telling phrase, allegedly used by the police, was quoted by most of the other witnesses called by the plaintiffs.

[21] According to the witness the police then went into the house and conducted a search. In the house they met the second plaintiff and swore at her, calling her a witch. They also swore at the children. They then went out of the gate and, at the gate, turned back and started assaulting the first plaintiff. He fell down because of the blows. His wife was also attacked. The assault on him was perpetrated by number 2 and number 5. They hit him with their fists and as he fell down they kicked him on his back. He was honest enough to say that he could not see who assaulted his wife because he was lying on the ground at the time.

[22] His evidence that the police never found the son who allegedly escaped remained undisputed.

[23] He denied having interfered with the police in the execution of their duties. He only asked them to leave the property because the son does not stay there.

[24] After the police left, the first plaintiff and the second plaintiff went to the clinic to seek medical attention. They saw a sister who examined them and gave them tablets. She also gave them a form on which she had written some details. They wanted to take the form to the police to lay an assault charge against the attackers.

[25] On the way to the police station from the clinic number 2 spotted them and called them over. He took the documents filled in by the sister and tore them up. He told them to get into the police van and informed them that they were under arrest. They were taken to Kwa Mhlanga Police Station.

[26] At the police station they were detained for two days. On the third day they appeared in court in told to return on 26 August 2003. On that day, when they went to court, they were told to go home and informed that they would be called if needed. They were never called.

[27] As to the nature of the injuries sustained in the assault, the first plaintiff pointed to his back in the area between the shoulder blades and his waste where he was allegedly kicked. He said that as a result of the assault the mobility of the right shoulder had become impaired. He was still an out patient at the clinic.

In this regard, I must point out that the first plaintiff did not dispute that he was also suffering from hypertension, and there is some doubt as to whether the need to go to the clinic as an out patient at this point in time, flows from the assault or the hypertension. On a general consideration of the evidence, it appears to me to be the latter, and I propose giving the defendants the benefit of the doubt in this regard.

[28] After they were discharged from detention, the first plaintiff and his wife went back to the clinic to get new papers in order to lay assault charges. The sister referred them to Dr Masondo, who completed the regulation J88 form on 11 August, more than a week after the assault. It is convenient to quote the first plaintiff’s statement as recorded by Dr Masondo and as it appears in exhibit A20:

“On 3 August 2003 at approximately 14h00 police arrived at Mr Judas Mabena’s home, asking for Simon Mabena his son. He replied that his son is in the cells at Kwa Mhlanga. They said to him he is lying and is hiding his son. When he told that was true (sic) they started using vulgar words. When he protested they started assaulting with fist until he fell (two then assaulted him). When on the floor they kicked him lower back and shoulder once and he stood up. Thereafter they assaulted his wife with ? several times until she fell down as well. On examination 1. tender lower back 2. tender upper back of shoulders.”

I add that the statement is handwritten and difficult to read. The doctor said that he could find no evidence of “marks of assault due to length of examination and period when assaulted”.

[29] After the doctor completed the form the witness and his wife laid complaints with the police and made statements. Nothing ever came from these complaints. I add that there is evidence amongst the papers (exhibit A18) that the police, on 8 August, completed a request to the doctor “for examination in a case of alleged assault or other crime”, SAPD308, reflecting the name of the first plaintiff. This, in my view, corroborates the evidence of the first plaintiff that an assault charge was laid. It is not disputed that nothing ever came from such a charge.

[30] The first plaintiff testified that his daughter, Ivy, (the fourth plaintiff), and another daughter, Liesbeth, were present when he was assaulted.

[31] On the question of contumelia, the first plaintiff said he felt very bad being assaulted in his own house like a child. While he was in custody he slept on the floor for two nights. He had no contact with his family and he had no access to legal representation. He could only see the doctor after he was discharged on the Tuesday. He was never told why he was arrested, neither were his rights explained to him.

[32] The first plaintiff was subjected to intensive cross examination. He struck me as a simple, honest person. He is elderly and frail, as I have stated.

[33] In my view, he did not in any way deviate from his evidence during cross examination. He reacted with indignation when he disagreed with the version of the defendants put to him in cross examination. He insisted that number 4 was also one of the attackers and denied the allegation that he was absent. He knows number 4 by sight. He insisted that the police entered their house and conducted a full search and hotly disputed the allegation that they never entered the house but only stayed outside before they left. He repeated the celebrated expression that the police said that they (the plaintiffs) “are full of shit”. He strongly denied having interfered with the police in their search.

[34] I considered the first plaintiff to be an honest and impressive and sincere witness.

[35] The next witness was another daughter of the first and second plaintiffs, Liesbeth Mabena. She was also at the parental home when the events unfolded on 3 August 2003.

[36] She was in the immediate vicinity where number 4 said to Ivy (the fourth plaintiff) “go and have a bath you are smelling”. According to this witness, other spectators, both inside and outside the premises, were close enough to hear this insult.

[37] She also strongly denied that the family refused the police entry to the house. She said some of them entered the house and conducted a full search. She witnessed the assault on her father and singled out number 2 as one of the perpetrators.

[38] She also witnessed the assault on her mother, the second plaintiff. In this regard she singled out number 3 and number 4. She said the commotion started at about 14h00 and lasted for about two hours.

[39] Under persistent cross examination she made a strong and convincing impression. She was indignant when it was put to her that number 4 was not even present and did not insult her sister. Her answer in this regard I noted as follows:

“Ok, he was present … can even say he was dressed in a white skipper and ‘bogard’ trousers and he is fond of haircuts.”

She said that when number 4 told Ivy to go and wash because she was smelling she (the witness) complained about the search without a warrant whereupon number 4 said “die mense is vol kak”. She testified that the fourth plaintiff also knows number 4 very well and that he is also well known to her (the witness). She explained that it was difficult to get other outside members of the community to testify on behalf of the plaintiffs because they were afraid of the police. This I found convincing. She confirmed that her parents went to the doctor to seek medical assistance. She repeated her evidence of the clothing worn by number 4. The haircut of number 4 she described as a “police cut” which number 4 appears to be very partial to. She repeated that she was present when number 4 defamed her sister and she heard what he said. She felt very bad because her younger sister was insulted and her parents assaulted. She mentioned that number 5 fired a gunshot in her direction. This was also mentioned by the first plaintiff late in his testimony.

[40] I found Liesbeth to be a strong and convincing witness.

[41] The fourth plaintiff, Ivy Mabena, was the next witness. She is 30 years old and unemployed. She stays with her parents.

[42] She insisted that number 4 was one of the attackers. She says “I personally know him, can describe him and can identify him”. The police defendants were not in court when these witnesses testified.

[43] She said number 4 and number 5 instructed her to open an outside room. The key of which was not available because the occupant had taken it with him. Number 4 pushed her and said he would “clap me I must go and wash because I stink”. This insult was directed at her outside the outside room very close to the fence and in the immediate vicinity of many onlookers who heard the insult. She confirmed that some of the police entered the main house and conducted a full search.

[44] As to the insult, she said “I felt bad, as though undress naked, my friends were outside the premises. I lost my respect to my friends I felt so bad”. She burst out crying whilst giving this evidence.

[45] She corroborated the evidence of Liesbeth, that the latter was present during the insult and complained about the absence of a search warrant. She also confirmed the celebrated expression “die mense is vol kak”.

[46] She said that number 5 swore at her mother (the second plaintiff) and called her a witch. She confirmed that her father, the first plaintiff was assaulted. In this regard she singled out number 2.

[47] She also saw her mother, second plaintiff, being assaulted and here she pointed out number 3 and number 4. When she ran away number 4 chucked a brick at one of the doors. He also kicked the door and broke it. She described the clothing of the policeman. She said number 2, 3 and 4 wore civilian clothes and number 5 was in uniform. This was never disputed.

[48] As was the case with the previous witnesses, I found the fourth plaintiff to be an impressive and convincing witness under cross examination. She corroborated the other witnesses in every material respect. She repeated that number 4 and 5 took her to the outside room where the insult took place and number 2 and 3 entered the main house and conducted a search. There was also a member of the community policing forum present. She insisted that number 4 was present and insulted her. She insisted that spectators from the community were very close when the insult was perpetrated and heard the insult. She repeated that her dignity was impaired. She felt that the community regarded her with contempt after the insult. She also insisted that she would identify number 4 if he was brought into court during her testimony. This did not happen. She also said that independent witnesses would not come forward because they were afraid of the police. She was an impressive and convincing witness.

[49] The last witness on behalf of the plaintiff was Annah Mabena, the second plaintiff.

[50] She corroborated the other witnesses in all material respects. She felt that the police arrived at about 15h00. She knew number 2 by name. The names of the others she got from the children. She insisted that the police conducted a search in the house and denied that there was any question of the family trying to stop them. She saw them assaulting her husband. They kicked him and trampled on his back. In this regard she singled out number 2, corroborating all the other witnesses in the process. As she was watching the assault, the police came towards her. She singled out number 3 and another person whose name she did not know. They both hit her on both sides of her head until she fell down backwards. She fell on her back and was injured. She was honest enough to say that she did not feel pain at the time of the assault but only afterwards.

[51] She confirmed the visit to the clinic and the subsequent arrest and detention. She confirmed that number 2 was one of the policemen who arrested them when they came out of the clinic. They were not told what the reason for the arrest was. She confirmed that the documents prepared by the sister were torn up by number 2.

[52] She confirmed that she had to sleep in custody in the cells on the Sunday and the Monday. As far as she was concerned they were charged with “swearing” at the police and not for obstructing the police in the execution of their duties. She confirmed that they were told at court to go home until they were called back and this never happened.

As to the assault, she felt very bad. Her dignity was impaired and her whole family and her house were “degraded”. The fact that all this happened in view of the neighbours, made matters worse. They were also arrested in public in the presence of members of the community and loaded into the police van. This had never happened to her before.

[53] Under cross examination she impressed me as a simple, honest witness. She confirmed that number 5 called her a witch.

[54] She described her injuries as mainly relating to the left arm and the back of the hip. She said she was injured during the assault and when she fell backwards. She also mentioned her arm.

Her statement to Dr. Masondo who completed her J88 form on 11 August is exhibit A14. The statement was recorded as follows by Dr Masondo (illegible parts are omitted):

“On 3 August 2003 at ± 14h00 police arrived at Annah Malobola and Judas Mabena’s home looking for their son Simon Mabena. She told police that their son is in the cells and police contradicted her and told she and husband are lying and hiding the escapee. Vulgar words were started by police and she replied ??. Police got angry and started assaulting with ? palm of hands until she fell down. When she had fallen ? stopped assaulting her and left. They (Annah and husband) asked for examination. After completion of the examination police tore the examination papers and arrested them. On examination: 1 tender right side of head and ear ache ?? to falling on right hand side.”

[55] She was cross-examined about the apparent discrepancy between the description of the injuries in court (arm and hip) and that given to Dr Masondo (ear and side of head). I do not consider this to be a material weakness in the testimony of this witness, and, in my view, her testimony is corroborated, in material respects, by the statement recorded a few days after the event by Dr Masondo. There was no objection that the latter statement was inadmissible because it constituted a so called previous consistent statement.

[56] She said she felt degraded “being assaulted like a child by a foreigner”. She insisted that number 4 was present. Two policemen assaulted her. The one in uniform was the one who called her a witch. This was number 5. This evidence was corroborated by previous witnesses.

[57] There were slight differences on detail between the four witnesses. This is understandable, given the lapse of time. I found all the witnesses impressive and convincing.

[58] After the plaintiffs closed their case, four witnesses testified on behalf of the defendants.

[59] The first of these was number 3, Joseph Emmanuel Mthombeni.

[60] He was on duty on the Sunday when he heard about prisoners having escaped. There was information that one escapee had entered the Mabena premises.

[61] At the scene he was surprised to find the police (many of them) gathered at the gate and not entering the premises. There were also members of the public.

[62] When he got out of the police car occupants of the premises started swearing at him. This he found surprising. He produced his police ID card but this was ignored.

[63] Nobody would listen to the police.

[64] The community members insisted that the police should enter the premises.

[65] He could not quite make out which were the Mabenas and which were not. The community members chanted that they should get into the house.

[66] The witness suddenly decided that the occupants would not listen to the police, called his men together and told them to withdraw.

[67] He denied any wrongdoing such as assaults and defamation. At this stage he appeared to me to be evasive and he was reduced to a whisper during giving his evidence.

[68] He said number 4 was not present.

[69] When he told the police to withdraw, all of them obeyed. He only left one Themba Nkosi at the scene to watch proceedings and to keep an eye on whether or not the suspect by chance emerges from the premises.

[70] He denied that any shots were fired.

[71] As to the arrest, he was not personally involved. He was informed about the arrest.

[72] At the police station Constable Mtsweni wanted him to arrange for Babedi (no 4) to sign the OB book. He said he would cancel the name of number 4 because the latter was not on duty. It was not clear to me why this evidence had to be introduced. When asked where the second plaintiff would get the name of number 4 if he was not on the scene, the witness said that he and number 4 always patrolled and operated together. When the one is seen it is automatically expected that the other would be in the vicinity. On this occasion number 4, according to him, was absent.

[73] He said the rights of the detainees were read to them and he denied knowledge of clinic papers having been torn up.

[74] Understandably, the first question under cross examination was why the police, with a huge contingent present, did not simply enter the house. The strange answer I recorded as follows:

“The problem I foresaw, was that the community was there, and if we entered we would have had difficulty getting out through the community with the suspect.”

[75] He denied that number 4 was present. He was not aware of the alleged defamation neither did he hear the celebrated expression “die mense is vol kak”.

[76] Upon questioning, he said that the first and second plaintiffs were charged with defeating the ends of justice and defamation of character relating to how they swore at the police in public. No one ever explained why the criminal case was not proceeded with.

[78] He gave unrelated evidence (disputed on behalf of the plaintiff) that the first plaintiff was on occasion assaulted by the second plaintiff and the witness fetched the first plaintiff from hospital and took him home. This was not put to the plaintiffs when they testified. The witness presented this as proof of the fact that there was no grudge between him and the plaintiffs. This, in my view, makes it even more improbable that the plaintiffs would swear at him and the other police members, or falsely implicate him in any way.

[79] About the alleged swearing at the house he said the following:

“When you open your mouth they shut you down by swearing at you.”

This coming from two frail old pensioners and a couple of female children. All this in the face of a mighty army of police, many of them armed.

[80] In cross-examination he said that there were many police cars gathered at the Mabena house. There were so many that he could not get parking nearby. The dog unit members were there and there was even a unit from Cullinan in attendance.

[81] He confirmed that number 2 (Almond Mahlangu) also went by the name of “Sadam”.

[82] The police stayed at the scene for a very short while after he arrived. Ultimately he estimated the period at “less than two minutes”. This he qualified later.

[83] The following evidence was again recorded by me during the cross examination of this witness:

“You didn’t ask access to the premises? No chance, when I want to talk to someone, they swear, no chance to talk to anybody therefore we left.”

[84] The witness was reminded of the fact that when the plaintiffs were cross examined it was not put to them that the police never entered the premises.

[85] When pressed on the issue he later said that the police entered the yard but not the house. This was later disputed by other defence witnesses who insisted that nobody entered the yard either.

[86] He even conceded that he was not quite sure who were members of the Mabena family and who were not. He was not sure who allegedly interfered with the police in the execution of their duties.

[87] He denied the alleged assault.

[88] He was confronted with the fact that the witness, Liesbeth, grouped him and number 4 together, which tallies with his evidence that he and number 4 always worked closely with one another. He denied the presence of number 4.

[89] He was again confronted with the improbable situation of a whole task force arriving with the singular aim of arresting an escapee, encouraged by the community to do so and then suddenly deciding to leave in the face of a few insults by a couple of pensioners. His answer I recorded as follows:

“The reason we decided to leave was to protect the life of a person because the victim belongs to the community, the community could take him away.”

[90] When asked whether this meant that he felt it was safer to leave the victim with the community than to take him away, he answered in the affirmative.

[100] I found this witness to be evasive and unimpressive. He was also impertinent and sarcastic at times.

[101] The next witness was number 2, Almond Driespiet Mahlangu (perhaps “Mhlanga”).

[102] As already described, he also rejoiced in the name of “Sadam” and, as will be seen later, he is also known in certain circles as “Three Speed”.

[103] Like the previous witness, he also gave detailed evidence of the huge police task force that gathered at the premises.

[104] He also gave the strange evidence about the family members swearing at them and he also insisted that “the community said we must go into the premises and get the person out”.

[105] Of course, this begs the question why they did not do so. Again, the reason is given that the Mabena family swore at them.

[106] He confirmed that the previous witness, number 3, instructed them to leave because there would be “big trouble” if the community took the person from their hands.

[107] As to the arrest, he confirmed that he was instrumental in having the first and second plaintiffs arrested later. They were met along the road. He was in the company of one Mamabolo and one Msimango. Not one of these people testified. A later witness suggested that Mamabolo had passed away.

[108] He denied the alleged assaults and defamation.

[109] When asked, in chief, whether he had torn the clinic papers, he said “I never found any documents in their possession”. When asked the same question later in cross examination he said “the clinic does not issue documents”. He was evasive in this regard and in may other respects. He was unimpressive and unconvincing.

[110] In chief, he said that had the police entered they would have brought out the suspect. When asked why they did not do so, he blamed the swearing again.

[111] In cross-examination he said there were at least eight police cars at the scene and the task force consisted of many members.

[112] He insisted, again, that the community urged them to enter the premises to catch the suspect. This makes nonsense of the “excuse” that an arrest might lead to the community endangering the life of the suspect. He insisted that the community did not prevent them from entering and that there were no threats from the community.

[113] When asked how it was possible that many armed police could be deterred by a couple of fragile old people he said that these people were his neighbours and he “knows them as a large family”. This was never put to the plaintiffs’ witnesses. It was patently clear that those present at the Mabena house consisted of the old couple, their two daughters and their few children. The late third plaintiff was also there.

[114] He could not dispute the fact that the first plaintiff had laid an assault charge with the police.

[115] He insisted that the police did not even enter the premises. In this regard he contradicted the later concession, supra, by the previous witness.

[116] He admitted that when the old couple was arrested they were not busy committing an offence. This is with reference to the provisions of section 40 of the Criminal Procedure Act.

[117] He denied the use of the, by now almost popular, “vol kak” expression.

[118] The next witness was number 4, Jack Babedi.

[119] In his short evidence, he denied being present at the scene. In cross examination he confirmed that he often works very closely with number 2. It was not the case on that day.

[120] He denied the defamation. He said he did not know the fourth plaintiff. This I find completely unconvincing in the light of the strong evidence of the fourth plaintiff and Liesbeth that they know this witness very well.

[121] When he was cross examined, it was put to him that the fourth plaintiff was also now in court and had identified him by instructing her cross-examining counsel according. He insisted that he did not know the fourth plaintiff or her sister.

[122] He denied that he wore the clothing alluded to by the plaintiffs’ witnesses. I find it inherently improbable that the witnesses would place him on the scene for no reason at all.

[123] This witness was evasive and unimpressive.

[124] The last witness for the defence was Amos Makhola, a member of the Community Police Forum.

[125] He confirmed that number 2 also went by the name of “Three Speed” and fondly refer to him by this name on many occasions.

[126] He knows most of the policemen and works very closely with them.

[127] He collected some other CPF (Community Police Forum) members and they went to the scene. He confirmed that there were many policemen and police vehicles. He confirmed that the community insisted that the police should enter and bring the suspect out because they allegedly had seen him enter the premises. No details were given in this regard. The fact that the suspect was never caught, and is still at large, bears testimony to the improbability of the evidence that he had been seen entering in the first place.

[128] He said that the community members were upset when the police withdrew without completing the operation. Community members even sent him to the police station to enquire about the strange turn of events.

[129] He also said that nobody even entered the yard. He could not explain why number 3 had said that they entered the yard but not the house.

[130] He could not say how many members of the Mabena family prevented the police from entering. He did not see the assault and knows nothing about the defamation.

[131] When it was finally put to him that the police had ample manpower and backing from the community to enter the premises if they had wanted to he said “I don’t know the regulations”. This answer I found evasive and unconvincing. He was a member of the CPF. He worked closely with the police. He was sent to the police to enquire why they aborted the operation for no apparent reason. He never said what the answer was.

[132] This was the last witness for the defendants. I was informed by counsel for the defendants that number 5 was on sick leave and could not be traced.

Various aspects as to the onus of proof as it relates to this particular case:

[133] This is a case of a court being confronted with two mutually destructive versions: on the one hand the plaintiffs gave meticulous and detailed evidence about the series of events which inspired them to seek relief. On the other hand the defendants offer a bare denial, disputing that any of the alleged offences were ever perpetrated.

[134] This case features, infra, particular incidences of a shift of onus, but, as to the overall onus on a plaintiff where mutually conflicting versions are presented, the law is stated concisely in National Employers’ General Insurance v Jagers 1984 4 SA 437 (ECD) 440D-G:

“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.”

[135] In summarising the evidence, I expressed the view that the simple, straightforward evidence of the plaintiffs was compelling and convincing. All those witnesses impressed me for the reasons I have stated. On the other hand, I have expressed the opinion that the defendants were unimpressive and evasive. Some of the reasons for this conclusion I have expressed.

[136] As to the general probabilities, these, in my opinion, clearly favour the plaintiffs. I mention some of the reasons for this conclusion:

1. The all pervading improbability in the case of the defendants is the version that a mighty task force, assembled for the very purpose of entering the Mabena house to arrest the suspect, meekly turned away at the gate in the face of alleged insults by a couple of old pensioners and their female children. No acceptable explanation for this conduct was given. I have dealt with the evidence and expressed detailed views about the improbability of the version advanced by the defendants.

2. It is inherently improbable that a couple of relatively uneducated senior citizens would conspire to fabricate details about a fictitious series of events and go all the way to trial in an effort to prove their fairytale story. Moreover, there is evidentiary support for the version relating to the assault if one has regard to the statements compiled by Dr Masondo a few days after the event. These I have described.

3. It is inherently improbable that the plaintiffs would place number 4 on the scene if he was not there at all. There is no evidence that they had a reason to fabricate such a story or that they had a grudge against any of the defendants. If they wanted to make money out of the damages claimed, they would have picked one of those actually present at the scene as an alleged perpetrator and not go to the trouble to find someone who was off duty and place him on the scene. To this can be added the clear evidence of the fourth plaintiff and her sister about the clothing worn by number 4, and the fact that he was well known to them.

4. Another reason to reject, on the probabilities, the police version that they did not enter the premises, is to be found in their plea. Paragraphs 5, 6 and 7 of the plea read as follows:

“5. Ad paragraph 13

Save to admit that the second, third and fifth defendants, together with Inspector Dlanga Mandla, entered the home of the first and second plaintiffs the rest of the contents of this paragraph are denied.

6. The defendants avers (sic) that they demanded that the first and second plaintiffs to grant them entry and access to their house for the purpose of pursuing and arresting suspects, who were in the house, but were denied entry and access to the house by the first and second defendants and other members of their family and the community.

7. The defendants further avers (sic) that as they were still in the first and second plaintiffs’ residence, the plaintiffs, their family members and other members of the community were verbally abusing and threatening the members of the South African Police who were present and collectively refusing them entrance to their house to pursue and arrest the suspect.” (Emphasis added)

[137] The evidence was expressly that the community members did not threaten or insult the police. This is not in accordance with the plea. The plea contains a clear admission that at least numbers 2, 3 and 5 were in the house as such. This flies in the face of the evidence of all the defendants. This discrepancy, to my recollection, was not raised in cross examination and neither was it explained in evidence.

[138] Subject to further specific remarks about the onus in a case of this nature, I therefore conclude that the plaintiffs succeeded in discharging the onus of proving that the transgressions complained of were in fact perpetrated.

[139] As to claim 1 (defamation) I therefore find that the words complained of were uttered by number 4 and are prima facie defamatory. In this regard I accept, for reasons already mentioned, the strong evidence of the fourth plaintiff and her sister, Liesbeth. It is inherently improbable that they would fabricate words of this somewhat unusual nature and it is clear that the required publication took place because it was overheard by Liesbeth and, on the probabilities, by members of the community who were in close attendance.

[140] The case of the fourth plaintiff is fortified by the presumption created, once the prima facie defamatory utterances have been proved, and the consequent evidentially burden on the defendant. It is described as follows by Neethling, Potgieter and Visser in Deliktereg 4^th ed page 367:

“Soos gestel, lewer die eiser wat bewys dat die gewraakte publikasie lasterlik is en op hom betrekking het, prima facie bewys van onregmatigheid. Daar ontstaan dan ‘n vermoede van onregmatigheid wat die las op die verweerder plaas om die vermoede te weerlê. Dit kan hy doen deur die bestaan van ‘n regverdigingsgrond vir sy optrede aan te toon. Slaag hy nie daarin nie, staan onregmatigheid vas.”

[141] In this case there was only a bare denial. There was no attempt to advance grounds for justification such as privilege or fair comment. In the result, the action for defamation must succeed. The quantum will be referred to later.

[142] As to claim 2 (assault) there is also an onus on the defendants. The legal position is stated as follows by HARMS, Amler’s Precedents of Pleadings 6^th ed page 44:

“Onus: earlier doubts as to who bears the onus of proof have now been clarified. Mabaso v Felix 1981 3 SA 865 (A) and compare Matlou v Makhubedu 1978 1 SA 946 (A).

The onus of alleging and proving an excuse for, or justification of, the assault rests on the defendant … Compare Minister of Law and Order v Monti 1995 1 SA 35 (A) 39G-I and Minister of Justice v Hofmeyr [1993] ZASCA 40; 1993 3 SA 131 (A)”

[143] Of course, in this case, no attempt was made to justify the assault which I have found to have been perpetrated. In the result, the damages claims in respect of the assaults ought to be upheld. The quantum will be referred to later.

[144] As to the alleged unlawful arrest and detention, the plaintiffs are, similarly, assisted by the existence of an evidentiary burden placed on the defendants.

HARMS, op cit, describes the situation as follows on page 40:

“Wrongfulness: an arrest or detention is prima facie wrongful and unlawful. It is, therefore, not necessary to allege and prove wrongfulness or unlawfulness. It is for the defendant to allege and prove the lawfulness of the arrest or detention.

Minister van Wet en Order v Matshoba 1990 1 SA 280 (A)

Stambolie v Commissioner of Police 1990 2 (SA) 369 (ZSC)

Lombo v African National Congress [2002] 3 All SA 517 (SCA); 2002 5 SA 668 (SCA) par 32

Thus, where police have arrested and detained a person, once the arrest and detention are admitted, the onus of proving lawfulness rests on the State. Mhaga v Minister of Safety and Security [2001] 2 All SA 534 (Tk).”

[145] In this case the arrest and detention are admitted. Details of the events appear from the summary of the evidence.

[146] The only attempt on the part of the defendants to justify the arrest and detention is verbalised as follows in the plea:

“24. The defendants avers (sic) that such arrests were lawful in that:

24.1 The arrests were effected by duly authorised police/peace officers.

24.2 The first and second plaintiffs had committed an offence of wilfully obstructing, and interfering with police officers in the execution of their duties.”

[147] It is common cause that the arrest was executed without a warrant. This complicates matters for the defendants, and brings the provisions of section 40 of the Criminal Procedure Act, Act 51 of 1977 into play. It is convenient to quote the relevant extracts from section 40:

“40. Arrest by peace officer without warrant

(1) A peace officer may without warrant arrest any person –

(a) Who commits or attempts to commit any offence in his presence;

(b) Whom he reasonably suspects of having committed an offence referred to in Schedule 1, other than the offence of escaping from unlawful custody;”

[148] There was no question of a Schedule 1 offence. This leaves only the provisions of section 40(1)(a) for consideration.

[149] The position is described as follows by Du Toit and Others, Commentary on the Criminal Procedure Act, 5 – 9:

“An arrest under section 40(1)(a) is only lawful if carried out at the time of the commission of the crime. The intention of the Legislature in this regard can be inferred from the use of the present tense of the verb in subsection (1)(a) [Rex v Msimbo 1924 EDL 381 (383)]. However, if a crime is committed in the presence of a peace officer, the suspect flees, and the peace officer pursues him and eventually arrests him in a private residence, the arrest still falls under section 40(1)(a) [Rex v Rudolf and Another 1950 2 SA 522 (C) 525].

Where a peace officer relies upon section 40(1)(a), the onus is upon him to prove that a crime was committed in his presence [Brand v Minister of Justice and Another 1959 4 SA 712 (A) and the authorities referred to therein].”

[150] In this case the two old people were arrested long after they allegedly insulted the police. No crime was committed in the presence of number 2 and the other police officers who assisted him to arrest and detain the first and second plaintiffs. This is common cause. The onus referred to by the learned authors was not discharged. In any event, I have already rejected the version of the defendants and I am satisfied that the overwhelming probabilities indicate that the old couple did not insult the police or interfere with the execution of their duties. The fact that the criminal charges were never pursued, fortifies this conclusion.

[151] In the result, the damages claims for unlawful arrest and detention ought to succeed. The quantum will be referred to hereunder.

Vicarious liability

[152] It is common cause that all the police officers were acting in the course and scope of their employment with the first defendant, the minister, at all relevant times. It was not disputed that if the offences complained of were proved, the minister would be vicariously liable. This is in line with recent (and earlier) decisions.

[153] In the circumstance I find it unnecessary to dwell any further on this subject, other than to state that the combination of defendants will not be the same in respect of all the claims: in respect of the defamation it will be number 1 and number 4. In the case of the assault it will be number 1 and all four the policemen, and in the case of the arrest and detention it will be number 1 and number 2.

The quantum of the claims:

[154] As to the defamation claim, Mr Jacobs referred me to the following two decisions:

Muller v SA Associated Newspapers Ltd and 0thers 1972 2 SA 589 at 596; Afrika v Metzler 1997 4 SA 531 (N) 539

[155] I am mindful of the fact that the fourth plaintiff was seriously affected by this incident and she felt that her position in the community was adversely influenced. Her dignity was impaired in the face of the community members who were present when the insult took place. In Afrika the award was R30 000.00 (in fact 30 000.00 Namibian dollars). This involved defamation of a medical practitioner and well known politician by way of a newspaper article. Perhaps the two cases are not entirely comparable. What I find aggravating, is that the perpetrator was a police officer, who perpetrated an unprovoked attack on an innocent young lady in the presence of her sister and other members of the community. Shy posed no threat to him. There was no justification for the insult. There is a strong element of contumelia. This I have described. In my view an appropriate award would be an amount of R20 000.00.

[156] As to claim 2 (the assaults) I have mentioned that the plaintiffs opted for a somewhat unusual procedural approach by launching a joint claim. They claimed R75 000.00 jointly.

[157] Mr Jacobs referred me to the following cases:

(i) Booi v Minister of Police and Others 1979 ECD, reported in Corbett and Buchanan The Quantum of Damages in Bodily and Fatal Injury Cases, vol 3 page 285. The plaintiff was assaulted by two policemen. She was pummelled and kicked. It was a young woman of 29. The compensation included R1 800.00 for contumelia, including unlawful arrest and detention, and R500.00 for shock, pain and suffering. The 2007 updated figure (Koch the quantum yearbook) for the R500.00 is R8 300.00. The contumelia award was separated so that a comparison is difficult.

(ii) Mbatha v Van Staden 1982 DCLD reported in Corbett and Buchanan op cit page 348. This was a man who was beaten up, kicked and stunned and struck in the face with a clenched fist. His lips were cut and his teeth loosened. There was also a contumelia element. The award of R2 000.00 is updated by Koch (2007) to R22 000.00.

(iii) Capke v Minister of Police 1979 ECD reported in Corbett and Buchanan op cit page 284. Here the plaintiff was also assaulted by two policemen. He was manhandled, struck and throttled. For shock, pain and suffering he was awarded R1 000.00. This updates to R41 000.00, according to Koch.

[158] What I find aggravating, again, is the fact that the policemen assaulted two frail old pensioners without the latter posing any threat to them. There is also a strong element of contumelia because they felt insulted by being assaulted by younger people in the public eye.

[159] Mr Jacobs proposed an award of R30 000.00 for each of the plaintiffs. I agree with this submission. This would mean a joint award of R60 000.00.

[160] As to claim 5 (unlawful arrest and detention) Mr Jacobs also referred to a series of cases:

(i) Areff v Minister of Police 1977 2 SA 900 (A) where an amount of R1 000.00 was awarded. Koch op cit updates the figure in 2007 to R26 000.00.

(ii) Ngcobo v Minister of Police 1978 4 SA 930 (D) where the two awards (R1 500.00 and R500.00 respectively) now updates in 2007 to R28 000.00 and R9 400.00 respectively.

(iii) Tobani v Minister of Correctional Services NO [2000] 2 All SA 318 (SE) where the R50 000.00 award updates to R74 000.00 in 2007.

[161] There is also an interesting tabulation in Koch op cit (referred to by Mr Jacobs) reflecting the “rate per day for arrest and detention”. The updated “daily rate” for the case of Todt v Ipser 1993 3 SA 577 (A) (R4 000.00 in 1993) is R13 000.00 per day. This is a competitive rate, even by five star hotel standards.

[162] Again, I find the fact that the transgressions were perpetrated by a policeman on defenceless old people to be an aggravating factor. There is also the element of contumelia. In my view, an award of R35 000.00 for each of the plaintiffs would be appropriate.

The order:

[163] In all the circumstances, I grant judgment in favour of the plaintiffs against the defendants as follows:

1. Claim 1:

1.1 Judgment in favour of the fourth plaintiff against the first and fourth defendants, jointly and severally, for payment of the amount of R20 000.00;

1.2. Interest on the aforesaid amount at the rate of 15,5% from date of judgment to date of payment;

1.3. Costs of suit on the High Court scale.

2. Claim 2:

2.1 Judgment in favour of the first and second plaintiffs, jointly, against the first, second, third, fourth and fifth defendants, jointly and severally, for payment of the amount of R60 000.00;

2.2 Interest on the aforesaid amount at 15,5% per annum from date of judgment to date of payment;

2.3 Costs of suit on the High Court scale.

3. Claim 5:

3.1 Judgment in favour of the first plaintiff in the sum of R35 000.00 against the first and second defendants, jointly and severally;

3.2 Judgment in favour of the second plaintiff in the sum of R35 000.00 against the first and fourth defendants, jointly and severally;

3.3 Interest on the aforesaid amounts at the rate of 15,5% per annum from date of judgment to date of payment;

3.4 Costs of suit on the High Court scale.

W R C PRINSLOO

JUDGE OF THE HIGH COURT

819/2004

Heard on: 7, 8 and 9 November 2007

For the plaintiffs: Adv H F Jacobs

Instructed by: Johan van Zyl Attorneys

For the defendants: Adv M M Mojapelo

Instructed by: The State Attorney

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