Mtati v Minister of Justice

• Jurisdiction: South Africa
• Judge: Schreiner JA, Hoexter JA, Malan JA, Reynolds AJA and Hall AJA
• Judgment Date: 28 November 1957
• Hearing Date: 15 November 1957
• Court: Appellate Division

Schreiner, J.A.:

I have had the opportunity of reading the judgments of HOEXTER, J.A., and HALL, A.J.A., and wish to state briefly my reasons for agreeing with the conclusion reached by the former.

F In the first place it seems to me that Jezile was negligent in allowing Tshiki to enter the cell without making proper enquiries as to his reasons for wanting to do so. In coming to this conclusion I do not find it necessary to rely upon Jezile's breach of the regulations. Those regulations were in my view framed partly for the protection of the G inmates of the cells and partly for the good order and government of the police force. There is a close interaction between the two. Unless the inmates are properly protected the discipline and reputation of the force must suffer, and if the force is not properly disciplined persons who are under arrest will from time to time meet with ill-treatment. Jezile's failure to know his duty under the regulations could not put H him or his employer in a better position than if he had known what he ought to do but through slackness or otherwise omitted to carry it out.

But quite apart from the regulations it seems to me to be clear that anyone who, like Jezile, has the power to allow persons to enter a cell where arrested persons are being detained is obliged to use reasonable

Hoexter JA

care to see that no-one enters without good reason. The control which Jezile was in a position to exercise laid in my opinion a duty on him towards the detainees who were unable to protect themselves against attack by escape. SAMPSON, A.J., rightly held that Jezile was under a A duty of care but he came to the conclusion that this duty did not go so far as to require him to ask Tshiki what he wanted to go in for, and if the answer was not convincing to refuse him entry. With this conclusion I am unable to agree. It seems to me that a reasonable man in Jezile's place would not allow a person to enter a cell with prisoners in it merely because he asked to be allowed to go in and because he was a B policeman. The reasonable man would not in the first instance ask himself 'What harm can there be in letting him in?', but 'What good reason is there for admitting him?'. The duty to find out the reason was not a burdensome one. It would depend on the reply to the first question, 'Why do you want to go in?', whether it would be negligent to C accept the answer and open the door. But to make no inquiry at all seems to me to amount to surrendering all responsibility, and that Jezile could not properly do. It is not even necessary in my view to rely upon the fact that Jezile's superior, Mpengesi, was at hand for consultation if he was in doubt, but it certainly was a factor that makes Jezile's conduct seem even less defensible.

D This view of the matter is enough, I think, to lead to the conclusion reached by HOEXTER, J.A. But I should add that, in regard to what happened after Jezile had admitted Tshiki to the cell, I do not find it necessary to attach crucial importance to the tone of voice used by Tshiki. As soon as the latter asked, not for any particular named prisoner, nor for anyone who was connected with some petty offence of E the kind that Tshiki might have a duty to investigate, but for the man who assaulted the policeman, it should have been obvious to Jezile that Tshiki was there for no good purpose. Instead of at once telling Tshiki to come out of the cell Jezile actually pointed out the appellant as the man wanted. That seems to me to have been a highly negligent act, and a clear breach of his duty towards the appellant.

F It is clear that if Jezile was negligent in the above-mentioned respects his negligence materially contributed to the injury to the appellant. For these reasons, in addition to those given by HOEXTER, J.A., I agree that the appeal must be allowed and the order made which appears in his judgment.

Judgment

G Hoexter, J.A.:

The appellant was the unsuccessful plaintiff in an action for damages against the respondent. It is not in dispute that he was assaulted by Native constable Tshiki at approximately 7.30 a.m. on the 13th February, 1955, in a cell at the New Brighton police station, Port Elizabeth. He had been arrested the previous afternoon on a charge H of assaulting a Native constable named Cornwall and was being detained in one of the police cells. Tshiki was apparently annoyed that the appellant had dared to assault a constable and, after persuading Native constable Jezile to unlock the cell, in which the appellant had been locked up with two other awaiting trial prisoners, he demanded to know who had assaulted the policeman. Jezile pointed to the appellant and Tshiki then proceeded to commit a serious assault on the

Hoexter JA

appellant. All the constables mentioned were members of the South African Police and employed by the respondent.

In his declaration the appellant alleged that Tshiki, when he committed the assault, was acting in the course and within the scope of his employment as the servant of the respondent. Alternatively, the A appellant alleged that Jezile and Native Sergeant Mpengesi negligently allowed Tshiki to enter the police cell, that Jezile had negligently failed to prevent him from assaulting the appellant, and that Sergeant Prinsloo, the station commander, and Mpengesi had been negligent in failing adequately to instruct Jezile as to his duty to prevent unauthorised persons from entering the police cells, a duty which is prescribed by sec. 274 (4) of the Police Standing Orders. The B declaration also alleged that Jezile, Mpengesi and Prinsloo were acting in the course of and within the scope of their employment as servants of the respondent. The learned trial Judge found that Tshiki was not acting in the course of his employment when he assaulted the appellant and that there was no negligence, actionable by the plaintiff, C on the part of Jezile, Mpengesi or Prinsloo. On these findings the trial Court dismissed the appellant's claim with costs, and it is against this order that the appellant now appeals to this Court in forma pauperis.

It is obvious that Tshiki knew that Cornwall had been assaulted the previous afternoon. Jezile also knew of the assault; he was on duty when D the appellant was brought to the police station on the afternoon of the 12th February. Mpengesi also knew of the assault and actually suspected Tshiki of wanting to go into the cell in order to take revenge on the appellant for his assault on Cornwall. Mpengesi was on duty in the charge office when Tshiki came to him at 7.30 a.m. on the 13th February and asked for permission to go into one of the police cells in order to E see a friend. Tshiki was compelled to ask for permission because Mpengesi was in charge of the keys of the cells and no-one, not even a policeman, would be allowed to enter a police cell without his permission. His duty, according to the evidence, was to find out why Tshiki wanted to enter the cell and to refuse permission if he was not F satisfied that the latter wanted to enter the cell for a proper purpose. Mpengesi knew what his duty was; he knew what prisoners there were in the cell and asked Tshiki who his friend was. As Tshiki did not answer his question, Mpengesi told him that he had no friend in the cell and refused to give him permission to enter. Indeed Mpengesi says that it G actually came to his mind that Tshiki might want to go into the cell because of the appellant's assault on Cornwall. When he came on duty that morning he had heard the incoming and outgoing policemen speaking about the assault on Cornwall. And he admitted in cross-examination that it was in order to protect the plaintiff that he refused Tshiki's request.

H When Tshiki spoke to Mpengesi at 7.30 a.m., Jezile was also on duty in the charge office, but he says that he did not see Tshiki speak to Mpengesi. Tshiki apparently knew that Jezile would be able to get the keys of the police cell and when he was refused permission by Mpengesi he went to...