Ngubane v Minister of Police
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | Mngadi J |
| Judgment Date | 23 August 2023 |
| Citation | 2023 JDR 3182 (KZP) |
| Docket Number | 4808/2017P |
| Court | KwaZulu-Natal Division, Pietermaritzburg |
Mngadi J:
The plaintiff in an action claims damages from the defendant for assault. Issues in terms of Rule 33 (4) having separated, the issue of liability falls to be determined.
The plaintiff is Ellias Thathezakhe Ngubane and adult male security guard. The defendant is the Minister of Police, a minister of state in the government of Republic South Africa responsible for the South African Police Service.
The plaintiff claimed that on or about 10 February 2012 at midnight at his home he was assaulted by the members of the South African Police Service causing him some bodily injuries and pain and a severe psychological trauma.
The plaintiff issued summons on 03 May 2017. He claimed in the summons that he acquired knowledge of the defendant as the responsible organ of state when he consulted with the legal representative.
The plaintiff in the particulars of claim made the following averments. On or about the 10th February 2012 and approximately 12h00 midnight and at the plaintiff’s home in Kwahlaza Reserve, Empangeni, in KwaZulu-Natal, the plaintiff heard a loud knocking on the main door of his home. The plaintiff requested the identity of the person knocking on the door and the person responded by saying ‘it’s me your friend’. The plaintiff opened the door and two police officers dressed in civilian clothing entered into the plaintiff’s home. The two police officers informed plaintiff that they were searching for a firearm. The plaintiff told the two officers that he did possess a firearm and he handed to them the firearm licence authorizing possession of the firearm and he produced to the officers the firearm. One of the officers told the plaintiff they do not require the firearm that he handed to them which
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was a licensed firearm, but they wanted an illegally possessed firearm. The two police officers then started viciously assaulting the plaintiff after they had handcuffed him on his wrists behind his back, they viciously slapped him across his face; one of them placed a plastic tube three times around the plaintiff’s head in order to suffocate him; the other police officer took a twenty litre container and filled it to capacity with cold water and threw the cold water on the plaintiff’; the officer produced a stun gun and applied over both legs of the plaintiff shocking him with electric current. The police officers after the assault placed the plaintiff into the rear of the police van after they had wrapped a blanket around his face. The police officers drove with the plaintiff to kwaMthethwa region. They arrived at the Mthethwa region, parked near a certain homestead and pushed the plaintiff roughly out of the van. They drove away.
The above-mentioned averments were restated in a statutory demand notice dated 12 November 2014 attached to te summons. The defendant filed a plea pleading no knowledge of the incident, denying the allegations and putting the plaintiff to the proof thereof.
The plaintiff testified, and he led evidence of two witnesses, namely, Alpheus Msileni Biyela and Sikhumbuzo Erick Ngubane. The defendant lead evidence of one witness, namely’ Mondeni Wellcome Dubazane. The plaintiff as documentary evidence introduced (j88) medical examination report and a police statement of the plaintiff which were marked exhibits A and B respectively.
It became common cause that for purposes of liability the dispute centred on whether the persons involved in the incident were members of the South African Police, and if so, whether they were acting within the course and scope of their duties.
The plaintiff in the particulars of claim stated that the incident took place on or about 10 February 2012, but it is clear that, in fact, the incident took place on 16 February 2012. The contents of the police crime docket Empangeni CAS 611/02/2012 opened when the plaintiff laid a criminal complaint at the police station indicates that on 20 February 2012 the plaintiff and the witnesses reported that the incident took place on 16 February 2012 at 01h00. The doctor who examined the plaintiff on 24
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February 2012 stated that it was reported that the incident took place on 16 February 2012. In addition, the defendant did not make the date of the incident an issue.
In the statutory demand notice attached to the summons it is stated that the incident took place on 10 February 2012 at approximately 12 midnight and in Parag 7 of the said notice it is stated that:
‘In terms of Section 3(3) of the Institution of Legal Proceedings against Certain Organs of State Act 2002, a debt may not be regarded as being due until the plaintiff ‘Creditor has knowledge of the identity of the Organ of State. Notwithstanding that the cause of action herein arose on 26 November 2012, client only acquired due and actual knowledge of the identity of the office of the Minister of Police on the date of consultation with his legal representative herein, being 4 November 2014’.
It was not explained why the notice referred to 10 February 2012 as the date of the incident and in the same breath mention 26 November 2012 as the date of the incident. But again, the defendant did not make any issue about the different dates.
The purpose of a statutory demand notice is to place the defendant at early stage in a position to investigate the incident and to collect evidence relating to the incident including how it happened and who were involved to enable the defendant to deal with the claims or allegations arising from the incident forming the basis of the civil claim. In this case the statutory demand referred to two different dates as the date of the incident and both dates mentioned were wrong. It contained no other details other than the name of the plaintiff. It made no reference to the laying of the criminal charge and the reference of the police docket.
The plaintiff testified as follows:
‘He was 50 years old. He had a highest standard of education of Grade 11. Around the 15th of February 2012 he was not sure of the date, at 23h15 he was at his home. He had finished watching Tv at his home at kwaHlaza at Empangeni. He heard a knock on the door. He asked who it was. The response was that he must open, it was the police. He went to the door to open. His friend shouted and said open Troy it is me. Troy is his calling name. The friend in question was Ephraim Msweli Biyela. He recognised the voice of his friend. He opened the door. He saw police officers. They were four in fact, two of them were in civilian clothes and the other two were
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wearing police uniforms. His friend Biyela was with them, one police officer pointing a firearm at him, instructed him to lie on the ground which he did. He could identify the police officer if he saw him. That...
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