Shabangu v Minister of Police

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Kgoele J and Roelofse AJ
• Judgment Date: 18 May 2023
• Citation: 2023 JDR 1591 (MN)
• Hearing Date: 10 March 2023
• Docket Number: A45/2021
• Court: Mpumalanga Division (Main Seat)

Roelofse AJ:

[1]

The appellant instituted an action against the respondent for damages based on assault allegedly committed upon him by the police officers in the Regional Court of Mpumalanga (the court a quo), held at Mbombela. The court a quo dismissed the plaintiff's claim with costs. It is against the judgment and order that the appeal lies.

[2]

The appellant's grounds of appeal principally lie against the court aquo's finding that the plaintiff did not prove that it was indeed the police officers who had assaulted him.

[3]

At the trial, the appellant and two of his witnesses testified. One witness testified for the defendant.

[4]

The appellant testified that he was woken up during the early hours of the morning by his friend who told him that people were knocking at the door. The appellant requested his friend to open the door. Police officers entered the home and assaulted the appellant by amongst other things, placing a plastic bag over his head. The appellant identified one of the assailants as Captain Kain Sibanyoni. The appellant testified that the assailants wore police bulletproof vests but that they were in civilian clothes.

2023 JDR 1591 p3

Roelofse AJ

[5]

The appellant's second witness, Mr. Xolani Freddie Thwala, testified that he was arrested by members of the police on the same day during the night and that he was taken to the appellant's home by the police officers during the early hours of the morning upon which the appellant alleges the assault took place. Mr. Thwala saw the police officers entering the appellant's home and later saw the appellant outside the appellant's home in the presence of the police officers. This evidence of Mr. Thwala was not seriously challenged under cross-examination. Mr. Thwala's evidence fully corroborated the appellant's evidence in this regard. Mr. Thwala's cross-examination (and lengthy questioning by the court a quo) mainly focused on the identity of one of the assailants being Kain Sibanyoni, a police captain who was allegedly among the police officers.

[6]

The appellant's third witness, Mr. Baker, confirmed that persons wearing police bulletproof vests in civilian clothing entered the home and assaulted the appellant.

[7]

Captain Kain Sibanyoni testified for the defendant. He denied his involvement in the assault and that he was at the appellant's place

[8]

After hearing the evidence, the court a quo found that the appellant was assaulted but that the appellant did not prove on a balance of probabilities that the people who...