Ramakulukusha v Commander, Venda National Force

• Jurisdiction: South Africa
• Judge: Van der Spuy AJ
• Judgment Date: 30 September 1987
• Court: Venda Supreme Court

Van der Spuy AJ:

1.0 Historical background

Plaintiff, Isaac Ramakulukusha, a businessman, residing at Lufule in the Mahosi area of Mphamphuli in the Republic of Venda and carrying on business from his head office at Sibasa, Venda, is suing the Commander of the Venda National Force of the Republic of Venda (herein E called 'VNF') for damages resulting from his alleged wrongful arrest on 3 February 1983 by the VNF; his unlawful detention; a malicious prosecution of him on a false charge of murdering a young Venda girl, Nthatheni Phalali; an assault committed upon him on 5 February 1983 by members of the VNF; defamation by members of the VNF in calling him F a 'mavia vhatu' (a slaughterer of human beings); the closure of some of his 17 businesses including shops, filling stations and butcheries; loss of custom resulting from the allegation that he is a 'mavia vhatu' and legal costs incurred by him in defending the criminal charge. The total of the claims, apart from a current claim of R15 000 per month G until judgment, is the sum of R646 000. Plaintiff also claims interest on that sum from date of judgment to date of payment at the rate of 11 % per annum and costs of suit which during the trial he notified defendant would be requested on the basis of attorney and own client. The summons was issued on 2 August 1983. The matter came before this Court on 9 April 1985 when it was postponed and plaintiff was ordered to pay H the wasted costs of the postponement including the fees of two counsel.

On the postponed date, that is on 26 August 1985, the matter was postponed sine die and wasted costs on that occasion were reserved for decision by the trial Judge and I will deal later with that. The matter first came before me on 1 May 1986 when it was again postponed and I the costs reserved until 5 May 1986 when the matter was again postponed and the costs reserved. The trial proper commenced before me on 7 May 1986 and occupied 40 complete Court trial days, ending eventually on 22 May 1987. I reserved my judgment on that date and the arguments by counsel, which could not be completed within the time allotted for the hearing of the matter, were then placed before me by way of written J arguments, plaintiff

Van der Spuy AJ

A having filed his arguments on 22 May 1987, defendant filing comprehensive answers by 8 June 1987 and plaintiff replying to these answers on 24 July 1987. Since the latter date I have been continuously engaged in researching the very difficult issues of fact: both from the point of view of viva voce evidence and the multifarious exhibits that form the documentary evidence. So comprehensive was the matter B that plaintiff's main heads of argument comprise 199 pages, defendant's heads in answer 209 pages and plaintiff's reply thereto 179 pages, in toto 588 typed pages. The documentary evidence was placed before me in lever arch files and they are contained in six files of A4 size. Exhibit A contains the proceedings in the criminal matter before Strydom J C during the period 11 - 19 May 1983 and it is numbered and indexed from 1 to 220. Exhibit B contains, together with exhs C and D, another lever arch file, exh B being the police docket relating to the investigations of the alleged murder of Nthatheni Phalali. The numbering on the pages of exhs B, C, and D was changed with such bewildering rapidity and zeal in the course of the trial that I eventually directed counsel for D plaintiff to renumber those exhibits on the bottom right-hand corner of each page. Exhibit C is the Court file in the trial aforementioned, and exh D is the Attorney-General's file. Exhibit E contains the pleadings before the Court, EII the minutes of pretrial conferences and exh EIII, the bundle of the plaintiff's documents. Exhibit EIII also contains a E plurality of numerical sequences and the only way in which one can find one's way around this bundle is by adhering to the index of the bundle and the indicator slips which I asked counsel for plaintiff to insert, describing each document. Defendant's bundle of documents, exh EIV, is numbered more logically and without difficulty in a separate binder F from document 1.0 through to document 22.0. The magnitude of the task involved in giving this judgment is finally highlighted by the fact that I kept my handwritten notes in five Bench books comprising in all a total of 737 A4 pages. It is clear that with such a bewildering array of documentation, including the testimony of 28 witnesses, over such a long period there is no way in which one can find one's direction in G this matter without a comprehensive index to the judgment commencing with this historical background and then proceeding to the death of Nthatheni Phalali.

In para 1.1 - 1.4 of this judgment extensive reference is made to the entries on exh B and to the various statements of suspects and of H members of the South African Police ('SAP') and the VNF. These statements were not placed before me as proof of the truth of the facts contained therein but I deal with their contents in relation to an important fact in issue and that is the 'reasonable suspicion' allegedly formed and held before effecting the arrest and detention of plaintiff and the 'reasonable cause' which allegedly existed for his subsequent prosecution.

I 1.1 Death of Nthatheni Phalali

On Saturday, 19 July 1975, a four-year-old Venda girl was accompanied by her grandmother, Nyaphophi Netshifamadi, from her home in Hu-Mudimeli to Sendedzane, both places being situate in the Mahosi area of Mphephu in the Republic of Venda. On 28 July 1975 deceased's father, J William Phalali, received a report that Nthatheni had been missing since

Van der Spuy AJ

A 25 July 1975. On that day her grandmother had left home to attend a tribal council meeting at the chief's kraal and on returning to her home had been informed that another Venda girl, Jenneth Ranombe, had called for her grandchild and that they were playing together. When the grandmother proceeded to Jenneth's home Jenneth stated that Nthatheni had left her for Tshifhathani's family but a search there also B proved fruitless, the child having completely disappeared from the neighbourhood. Nyaphophi informed William Phalali on Monday, 28 July 1975, that it appeared that his daughter was missing. A frantic search by William also proved fruitless.

On Saturday, 2 August 1975, John Nedzamba, who lives at Mphalali C in Dzanani, was searching for his donkeys which had disappeared from his home and, while crossing the Nzhelele river from Mphayela to the Sendedza location, he saw the body of a child floating on the surface of the water. On coming closer he noticed that it was the dead body of a small child. He in turn reported the gruesome find to Jack Maphalala and D proceeded to the scene at the Nzhelele river, after he caused the parents to be informed of the death of the child, in the company of Nyaphophi Netshifamadi, who identified the child as her grandchild. It is common cause that Nthatheni Phalali was last seen alive on 25 July 1975 and that her dead body must have been immersed in the Nzhelele E river for a period of at least eight days before it was discovered, since it was in an advanced state of putrefaction.

1.2 Evidence of the state of the deceased's body

1.2.1 The real facts

On the day of the discovery of the dead body, that is Saturday, F 2 August 1975, William Phalali reported the matter to a Constable Wilson Ramantswana, a member of the SAP at Louis Trichardt which was at the time the nearest police station dealing with criminal investigations, ie before the independence of the Republic of Venda on 13 September 1979. William positively identified the body to the said constable who G had accompanied him to the river and Ramantswana then escorted the body to Louis Trichardt's Government mortuary where he identified it to Warrant Officer Nortje, the curator of the mortuary, as being the body of Nthatheni Phalali. It is clear on all the evidence that, when escorting the deceased's body from the scene where it was found to the Louis Trichardt mortuary, the corpse suffered no further injuries and H also that the corpse was taken care of at the mortuary until, on 5 August 1975, a post mortem examination was performed on it by Dr Joao Albassini. Albassini took two photographs of the dead body in the mortuary, both of which were produced at the criminal trial before Strydom J during May 1983. The one photograph, exh B1 in the said trial, I was of the full body of the deceased but it has mysteriously disappeared. The other one, exh B2, forms an exhibit before this Court, namely exh F2 which has been filed in vol EIII, p 130A. An enlargement of that photograph is to be found at p 130 marked exh F. It is not a particularly clear photograph. It shows that the nose of the deceased's body had not been cut off and that the eyes are still in their J sockets, but that portions of the skin of the face, on the throat, on the left

Van der Spuy AJ

A shoulder, on the left arm (upper) and on the left rib cage were missing. Furthermore the lips appear to have been removed as also the ears. Exhibit B1 in the criminal trial, that is of the full body, could not be found but there is secondary evidence by Albassini during the trial before Strydom J as well as observations by the Court in that trial that the extremities of the body, ie fingers and toes, had not been cut B off. It appears on the photograph before this Court that the breasts had not been cut off. It appeared from exh B1, according to the evidence which has been placed before me by reference to record exh A, that the fingers of the left hand which were visible on the missing photograph were all still present and that the toes were intact. It is to be C regretted that the Court was not given the benefit of the other photograph but it has never been...