Mtwalo v Minister of Safety & Security

• Jurisdiction: South Africa
• Judge: Nzimande AJ
• Judgment Date: 27 March 2014
• Citation: 2014 JDR 0584 (KZD)
• Docket Number: 8772/2009
• Court: KwaZulu-Natal High Court, Pietermaritzburg

Nzimande A J:

[1]

The plaintiff sues for damages in respect of unlawful entry, search, arrest, detention and assault. The claim was initially against the Government of the Republic of South Africa and one police officer who was alleged to have committed the delicts. However, at the inception of the trial leave to substitute the Minister of Safety and Security as the defendant was granted by the Court. The claim against the second defendant was not pursued because the second defendant passed away before the matter could proceed.

[2]

The summons is made up of two parts; for unlawful search, arrest

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and detention, claiming the amount of R300 000.00 in general damages in respect of:

•

breach of the plaintiff's right to freedom of movement;

•

breach of the plaintiff's right to privacy;

•

breach of the plaintiff's right to dignity;

•

breach of the plaintiff's right not to be unlawfully arrested and detained;

•

contumelia and humiliation suffered

and for assault in which an amount of R500,00.00 is claimed as a global sum, in respect of pain and suffering, loss of amenities of life, loss of enjoyment of life, disfigurement, disability and general health.

[3]

At the inception of the trial both parties moved a joint application for the separation of the issues of liability and quantum. The application was duly granted by the Court, ordering that the trial should proceed solely on the issue of liability.

[4]

It is trite that the defendant bears the onus of proving that:

(a)

a warrantless search of the house - see Ndabeni v Minister of Law and Order and another 1984 (3) SA 500 (D) at 571 D – E and

(b)

a warrantless arrest and detention of a person suspected of committing a crime listed in Schedule 1 of the Criminal Procedure Act 51

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of 1977 – see Duncan v Minister of Law and Order 1986 (2) SA 805 (A) at 818 G – H

were lawful. In this regard the provisions of Section 22 and 40 of the Criminal Procedure Act No. 51 of 1977 and Section 11 of the Drugs and Drug Trafficking Act No. 140 of 1992 will come into play.

With regard to the claim for assault, the plaintiff bears the onus to prove his case on a balance of probabilities.

[5]

However, the plaintiff decided to lead evidence first, testifying himself and also calling one other witness, one Satyelwa Lilian Mtatyana (Mtatyana). The defendant called the three police witnesses who testified orally and under oath, namely Detective Warrant Officer Elliot Nkonko (Nkonko), Lieutenant Colonel Manko Amelia Nketu (Nketu) and Sergeant Lance George Mara (Mara).

[6]

It is common cause that:

(a)

the police searched the premises of the plaintiff without a warrant on 21 October 2006;

(b)

the plaintiff was arrested and detained in hospital by the police on 21 October 2006;

(c)

Dagga was shown to the plaintiff by the police at the plaintiff's house.

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(d)

The plaintiff sustained injury to his left leg in the course of his arrest;

(e)

According to the charge sheet (pages 54 – 59 of Bundle "A") the plaintiff

(i)

was in custody and was granted bail on 10 November 2006.

(ii)

was charged with dealing in dagga and assault

and

(iii)

that the charge was withdrawn on 06 December as the Police docket was not at Court.

[7]

The plaintiff testified that he was born on 06 June 1961 and resides at Nyaniso, Masimangeni Village, Maluti District in the Eastern Cape. On the day in question five police officers in full blue police uniform jumped over his fence and approached him whilst he was sitting alone in his yard. Without introducing themselves they asked him about the dagga that he was allegedly selling. After he had told them that he was not selling dagga, the police instructed him to open the door to his house. As the Chairman of the Community Policing Forum (the Forum), he complied, as he knew that he had to obey police instructions. When the police entered his house he followed them into the dining room where he operated a tuck shop. The police then conducted a search of the dining room and the bedroom, which was situated to the right of the dining room. On searching the bedroom the officers opened wardrobes, lifted his mattress and threw items to the floor.

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[8]

Thereafter the police came right up to him, held him by the collar of his T-shirt and demanded dagga and a firearm. The plaintiff could not say anything, as he was in a state of shock. The police then started punching and clapping him on the head, which caused bleeding from his nose and mouth.

At that stage the plaintiff managed to run out of the house through the front door, where he encountered more police officers who then joined the others in assaulting him. By that time he was in an open space where his neighbours could witness this assault. He was also being kicked with booted feet from all angles by the police, until he fell down. He then realised that he had dislocated his left knee.

Constable April (April), whom the plaintiff alleged had caused his fall, then lay on top of him, throttling him with his hands. The plaintiff raised his head, lunged forward and bit April on the cheek, causing him to release the plaintiff.

[9]

The police officers then left the plaintiff and searched all over his premises. On their return they instructed him to get up, enter his house and point out a firearm. Due to his dislocated knee, he could not walk, so he crawled backwards on his hands and buttocks, dragging his legs until he reached the dining room. At all times the police continued to kick him, telling him to point out the firearm. Plaintiff told them that there was no firearm in his house. Thereafter, on instructions from the police officers, he crawled to the police vehicles which were parked outside his premises. One Thokozani Mvumvu (Thokozani) helped him to climb into

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the police van. As the police did not say anything, the plaintiff assumed that he was being arrested. He was taken to the Lukholweni Police Station, where no rights were explained to him. However, the police made him sign a typed document which they claimed contained his rights. He was later taken to the Taylor Bequest Hospital in Matatiele and the police took him to the X-ray department. Thereafter he was referred to Edendale Hospital in Pietermaritzburg on a stretcher.

[10]

He stayed in Edendale Hospital for three weeks and his leg was put in plaster. Thereafter he asked to be released because he was worried about his perishable commodities in his tuck shop. He was transferred to Matatiele Hospital in the hospital ambulance thereafter Nketu and another police office picked him up in police vehicle, first taking him to Mount Fletcher and then to Lukholweni Police Station, where he was detained for three days. He was not told why he was detained and three days later he appeared at Maluti Magistrates' Court where he was granted bail of R1 500.00 and released. However, when he went to Court again he was told to claim his bail money because his matter had been withdrawn.

He then proceeded to Maluti Police Station to complain about the actions/behaviour of the police where he was referred to Lukholweni Police Station to lay a charge about the incident which resulted in his injuries. When he got there he submitted a written statement which was recorded by the police in a foreign language, meaning it was not in

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isiXhosa. The police then told him to leave, promising to give him a case number later which never occurred.

When he approached the Police Station again he was informed that the police docket had gone missing. Some time later Nketu came to him and took down his statement, but nothing ever happened about his complaints against the police. At some stage he even wrote to the Provincial Police Commissioner but in vain.

[11]

Under cross-examination he confirmed that he had been the Chairperson of the Forum in October 2006 but not since 2003. He was aware that Nketu was the station Commissioner but denied that he frequently interacted with her in his official capacity prior to the 21st October 2006. He further denied that on discharge from the hospital he was taken to his home by Nketu, insisting that from hospital he was taken into custody at Lukholweni Police Station. He denied that Nkonko would have informed him of the date on which to appear in Court because he was never taken home when he was discharged. When it was put to him that in his evidence-in-chief he had stated that April had been lying on top of him he denied it, and that he could not remember saying this because he had been upset when giving evidence the previous day. He denied that any rights were explained to him and also that three parcels of dagga were found on the window sill in his dining room. He also denied that he told the police the dagga that was found was for his personal use as he smoked dagga. He also denied that the police had found him smoking dagga when they arrived. He denied that

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he had tried to reach April's firearm. He denied that he had grabbed April from behind, pushed him to the ground and sat on him. He denied that he tried to escape but had slipped by the corner of his house on an uneven surface, falling and colliding with the wall of his house. He denied that police officers assisted...