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Dayimani v Minister of Correctional Services (428/08) [2009] ZAECGHC 42 (17 July 2009)

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FORM A

FILING SHEET FOR EAST LONDON CIRCUIT COURT



PARTIES: VUYISILE DAYIMANI PLAINTIFF

AND

THE MINISTER OF CORRECTIONAL SERVICES: DEFENDANT


  1. Registrar:

  2. Magistrate:

  3. High Court: EAST LONDON CIRCUIT COURT


DATE HEARD: 28, 29 MAY, 01 June 2009

DATE DELIVERED: 17 July 2009


JUDGE(S): ACTING JUDGE KEMP


LEGAL REPRESENTATIVES –


Appearances:

  1. for the Plaintiff Adv C Wood

Instructed by Gravet Schoeman Van Rensburg & Moodley

Incorporated

41 Arthur Street

King William’s Town



  1. for the Defendant Adv M Jozana

Instructed by State Attorney

c/o Shared Legal Services

32 Alexandra Road

King William’s Town



CASE INFORMATION -

  1. Nature of proceedings : This is a claim for damages arising from an action brought by the Plaintiff for the damages suffered by him while he was awaiting trial at East London Medium B Prison. The Plaintiff succeded in his claim.





IN THE HIGH COURT OF SOUTH AFRICA

EAST LONDON CIRCUIT LOCAL DIVISION


CASE NO: EL 428/08

ECD 928/08


In the matter between:


VUYISILE DAYIMANI PLAINTIFF


and


THE MINISTER OF CORRECTIONAL SERVICES DEFENDANT



JUDGMENT



KEMP AJ


  1. The plaintiff brought an action for damages allegedly suffered by him while he was an awaiting trial prisoner at East London Medium B Prison. He alleged that he had been assaulted by prison guards in the service of the defendant. He alleged that he had sustained serious injuries as a result of the assault; inter alia, a broken leg and a fracture to the spine resulting in paralysis. The parties agreed to separate the issues and the matter proceeded only on the merits.


  1. The plaintiff testified and also called a fellow prisoner, Mr Mentoor, as a witness. Although Mentoor had not seen the alleged assault, he testified that he saw the prison guards removing the plaintiff from the dining hall just prior to the alleged assault. The defendant called warders Zibi and Nzele, who alleged that the plaintiff had tried to attack them but had tripped and had fallen down two flights of stairs, resulting in the injuries sustained by him. The defendant also called Mr Tokwe, the chief professional nurse who had attended to the plaintiff at the prison shortly after he sustained his injuries.


  1. The plaintiff alleged in his particulars of claim that:


In the dining area of the Medium “B” Prison, Fort Gamorgan, East London, two warders, who were carrying batons, took hold of the Plaintiff and struck him therewith on his body and forced him upstairs into a room;

On arrival at the room Plaintiff’s clothes were stripped off and he was further assaulted by numerous warders, using batons and other instruments whilst he was held to the floor as well as being picked up and dropped to the floor on numerous occasions;

The Plaintiff is unaware as to the names and identity of all the prison warders but from the name tags of various warders present he recalls that the following warders were present at the time of the assault, Zibe, Nzeleni, Mcaba and Mjiwu.


  1. The plaintiff alleged that as a result of the assault he had suffered a compound fracture of the right tibia and fibula, a closed defence fracture of his right ulna, a traumatic brain injury and a vertebral column injury with retrolisthesis of his L2 and L3 vertebrae resulting in paraplegia. He annexed a copy of the hospital records to the particulars of claim. The records were admitted into evidence, with the Defendant reserving the right to expressly dispute any aspect thereof.


  1. The hospital records indicate that the plaintiff was admitted to the Frere Hospital on the 16th June 2005. It appears from the history given in the admission note that the plaintiff was alleged to have suffered an assault in the cells and presented with a painful right leg and both arms. Fractures were suspected and then diagnosed to the right femur and ulna. He was also noted to have lesions to his body. It is not clear from the hospital records when the fracture resulting in the paraplegia was diagnosed. The first note I can find relating to his paraplegia in the hospital records appears some three weeks later, on the 21st July 2005.


  1. An inspection in loco was held and various observations relating thereto were made. A page of photographs was admitted into evidence and proved to be very useful in visualising the evidence of the various parties.


  1. I will attempt to describe the scene of the alleged assault. On exiting from the dining hall there is a flight of steps to the left, about 5 metres away. There is a metal gate through which entry to the steps is gained. There are nine concrete steps approximately 1.5 metres wide and they proceed upwards at an angle of about 45 degrees. At the top of the steps there is a landing approximately two metres deep and four metres wide. Going back in the same direction as the first flight of steps, and ascending at a similar angle are another nine steps, of the same dimensions, also made of concrete, with a metal hand rail to the right of them. At the top of the second flight of steps is a smaller landing, approximately 0,5 x 3 metres. At right angles to the landing is a passageway with with gates and single cell blocks to the left and to the right. Directly opposite the top of the stairs is a small office.


  1. The prison medical history sheet relating to the plaintiff bearing the entries relevant to the date of the alleged assault was also handed in as an exhibit. Mr Tokwe, the chief professional nurse who had attended to the plaintiff at the prison immediately after he sustained his injuries confirmed that he had made the entries and had an independent recollection of his examination of the plaintiff.


  1. It was common cause between the parties that a prison warder had been stabbed by another prisoner whilst the plaintiff and other prisoners were in the dining hall. The prisoner who stabbed the warder was then removed from the dining hall and questioned by other warders after which the plaintiff was then taken for questioning. The defendant was of the view that the plaintiff had ordered the stabbing, which the plaintiff denied. According to the plaintiff he was taken upstairs and was assaulted on the way and also at the top of the stairs. The defendant alleged that the plaintiff was indeed taken for questioning but as he approached the top of the stairs, turned around with a knife in his hands, lost his balance and tumbled down the stairs. The warders accompanying him then disarmed him. He struggled with them and fell down the next flight of stairs. According to the defendant the plaintiff must have suffered his injuries in the process of falling down either the first or the second, or both, flights of stairs. According to both warders who testified, the plaintiff then got up from the bottom of the stairs and accompanied them to the top, unassisted.


  1. The plaintiff’s version of events differed from that of his witness and also in material respects from his version pleaded. The plaintiff alleged in chief that he had been sitting in the dining hall when two warders asked for him by name. When he identified himself they began assaulting him with their batons. They then dragged him away. They did not hit him on the head but on the body. They blamed him for ordering the attack on the other warder. At the top of the stairway they made him lie down and assaulted him heavily. He said that he observed other warders but was beginning to lose consiousness.


  1. Under cross examination the discrepancies between his version to the court and in his pleadings were put to him. To the court he testified that he had been assaulted in the passageway and made to lie down. In his pleadings he alleged that he had been assaulted in the office at the top of the stairs after his clothes were stripped off and that he was picked up and dropped to the floor on numerous occasions. He could not shed any light on where the allegations in the pleadings had come from, as he could not remember the events as described in the pleadings. He must have instructed his attorney with the version pleaded and I must decide whether his changed version is as a result of him being untruthful about the assault or whether it can be ascribed to other reasons, possibly his injuries and the length of time since the assault, and whether his evidence relating to the alleged assault should be accepted or rejected.


  1. The plaintiff’s witness confirmed that the plaintiff had been approached by two warders. He testified that they had asked him where the knife was. One of them hit him with open hands but not with a baton, and dragged him out of sight. Once he disappeared from sight he heard a scream. His version is different from that of the plaintiff’s in that the plaintiff never testified about the warders asking for the knife and in so far as he testified that they assaulted him with batons.


  1. Warder Zibi then testified for the defendant. He testified that after the other warder was stabbed they took the prisoner who had stabbed him to another office where they questioned him. He alleged that the prisoner told them that the plaintiff had ordered him to stab the warder. They then went to look for the plaintiff. They knew him by sight and went straight to him. He shouted at them asking what they wanted from him and they told him that they had some information that they wanted clarified. They all then left the dining hall. He walked in front and the two warders behind.


  1. As they neared the top of the second flight of stairs the plaintiff turned around and drew a knife. There were by that time three warders following the plaintiff. They all retreated to the landing. The plaintiff then missed a step and rolled down to them. Zibi took the knife away from him after he came to rest. The plaintiff was made to stand up and instructed to go back up the stairs. Instead of complying, the plaintiff tried to get loose and was at the same time insulting them. He then pulled himself loose but in the process stumbled and rolled down the next flight of stairs. They then followed him down the stairs, grabbed him and took him upstairs. He was walking on his own although they were holding him.


  1. On getting to the top, the plaintiff was handed over to Mr Jantjies, who was in charge of that section. Mr Jantjies told them to get the necessary authority to detain him there. They then went off to obtain that authority. Under cross examination Zibi confirmed that the plaintiff had walked unassisted to the top of the stairs after he fell, and had sat down, unassisted, in a chair at the top of the stairs.


  1. Zibi expanded on his description of the first fall under cross examination. The plaintiff turned, drew the knife by opening the blade against his body and swore. He then advanced towards them but hit the metal hand rail, lost his balance and fell down to the landing. He slipped on his stomach, skidding down the stairs and as he hit the landing he was on his knees. It appeared as if he slipped, then hit the metal hand rail and then fell.


  1. The plaintiff was still on his knees when Zibi disarmed him. They lifted him up, two in the front and one behind and then he struggled. He continued to insult them and he was fighting and kicking. They were no longer holding him when he fell down the second flight of stairs. Although he stated that the plaintiff was limping after the fall he was sure that he walked up the stairs with no assistance. His evidence that the plaintiff was limping was not initially tendered and the impression I gained was that it may have been an afterthought.


  1. Warder Nzele also testified on behalf of the defendant. He witnessed the attack on the other warder and separated the warder from the prisoner who had attacked him. They then took the prisoner out of the dining hall and questioned him. He said that he had been acting under instructions of the plaintiff. Two other warders then went to fetch the plaintiff and Nzele followed them after they had fetched him. He saw the plaintiff advancing towards them wielding a knife. They tried to block the attack using their batons although there was some distance between them. That is when the plaintiff missed a step and rolled down between them. Zibi disarmed him and the warders present tried to pick him up. He however struggled, missed a step and rolled down the next flight of stairs. The plaintiff then went up the steps on his own.


  1. Under cross examination Nzele testified that the plaintiff turned around and made as if he was going to stab warder Zibi. He turned around very fast and then warder Zibi and his colleague blocked, using their batons. The plaintiff then missed a step as he advanced, and fell down. He then rolled between them. When he came to rest he was lying flat on his back, as opposed to having slid down the stairs and landed in a kneeling position as described by Zibi. They then grabbed him after Zibi disarmed him, he struggled and rolled down the next flight of stairs, after which they again picked him up. He then walked up the stairs by himself. Nobody assisted him. They were just holding him at his back when they went up. He never complained of any pain.


  1. Mr Zibi was specifically asked about the whereabouts of their batons at the time when the plaintiff allegedly pulled out the knife. He testified that their batons were still on their belts, from the time when he pulled out the knife, through the time when he was swearing at them, until he landed at the bottom of the first flight of stairs.


  1. Mr Tokwe, the chief professional nurse who attended to the plaintiff, testified that he had met the plaintiff in the consulting room at the prison. He assessed the extent of his injuries by examining the plaintiff from head to toe. The plaintiff could speak and advised him that he had been assaulted by warders with batons. He observed that his right leg was fractured. It was a compound fracture with the bones exposed and protruding out of the skin. His right hand was also fractured and the bone was also exposed. His right leg was swollen and both shoulders were bruised. He also had a bruise on the lumbar region and a wheal over the sacral spine. There was also an open wound or laceration on his left elbow. He also observed bruising to the right and left scapula. Mr Tokwe was adamant that it would have been mechanically impossible for the plaintiff to have been able to walk unaided with the injury to his leg.


  1. What is not in dispute, is that the plaintiff suffered a compound fracture of his leg shortly before being admitted to the sick bay at the prison. There is no evidence that the injury could have been inflicted other than either during the assault described by him or during the fall as described by the defence witnesses. Although it is evident that the plaintiff also suffered a fracture to two vertebrae that resulted in paralysis, it is not known whether the paralysis set in immediately or not. There is probably a high likelihood that it did and that he would not have been able to walk at all. The view of the defendant’s own witness is that it would have been impossible for him to have walked with the compound fracture to his leg.


  1. There are weaknesses on both sides. The evidence of the defendant appears to be implausible. It is unlikely that a prisoner will threaten a number of prison warders with a knife, with apparently nothing to gain, being substantially outnumbered, and then tumble down nine steps, or that he would once having been disarmed, tumble down another nine steps. It is not only unlikely, but physically impossible for him to have walked up those eighteen steps after suffering a compound fracture to his tibia. I can only conclude that the warders lied about that aspect of their evidence and cannot reconcile that fact with anything other than a conclusion that their evidence regarding the plaintiff allegedly falling down the steps is false. The contradictions in their evidence are certainly consistent with such a conclusion. The lesions and wheals to the plaintiffs body, although perhaps consistent with the defendant’s version, also appear to be consistent with an assault.


  1. I am satisfied that the two warders who testified on behalf of the defendant could not have been mistaken about whether the plaintiff was able to walk up the stairs. The contradictions in their evidence as far as whether Zibi used his baton to defend himself or not, whether the plaintiff fell down between them, or in front of them, and whether he landed on his back or on his knees were also concerning, but arguably fell into the same category of concern that I had about the contradictions between the plaintiff’s evidence, that of his witness, and his version as pleaded.


  1. Although warder Nzele testified that they attended periodical anger management courses, he was unable to indicate with any degree of accuracy how regularly these courses were presented. I do not find that that fact on its own affected his credibility detrimentally but I would not have been surprised if the guards had retaliated in some way against the plaintiff if he had indeed been named as the person who had ordered the assault against a fellow warder. Such actions would certainly be consistent with what is unfortunately a common human frailty. It is to my mind far more likely that the defendant’s employees assaulted the plaintiff than their version. It is not improbable that they went further than intended and beat the plaintiff so severely that he suffered debilitating orthopaedic injuries and that they then concocted the story that he fell down the stairs in an attempt to conceal their role in the matter.


  1. Nzele testified that although discipline was enforced against sentenced prisoners that there was no discipline enforced against awaiting trial prisoners. When Mr Wood, for the plaintiff, put it to him that it would be absurd if the awaiting trial prisoners could have anything in their possession such as a radio, brandy and cigarettes, and do whatever they pleased, Nzele’s somewhat nonsensical response was that they already had cigarettes. When Mr Wood asked him whether, if a prisoner stabbed a warder, they would just ask him not to stab the warder, Nzele’s hopefully facetious response was that, with the rights that awaiting trial prisoners enjoyed, the warders would be forced to kneel down and beg them. On being asked if he was being serious he assured Mr Wood that he was. I have no doubt that Nzele was exaggerating the situation in order to try and strengthen the defendant’s case. His evidence on that score appeared to be so far fetched as to be deliberately misleading and cast a suspicious light on the rest of his evidence.


  1. Although the plaintiff had his own problems in so far as his evidence was concerned, his own viva voce evidence in court was not unconvincing. The variances in his evidence from the evidence of his witness Mentoor were not so serious as to warrant a finding that either or both of them were being deliberately untruthful. The variances in his evidence from that of his case as pleaded are however more serious and material. If I accept the plaintiff’s viva voce version then I can only conclude that his memory has faded and that the version he put to his attorneys when the action commenced was probably the correct version. The version he submitted in court was in essence not so far removed from it. He was beaten on his way up the stairs and he was beaten at the top of the stairs, to such an extent that he suffered multiple bone fractures and he alleges, brain damage. I would not be surprised if his recollection of the actual events was not accurate.


  1. I would have been less inclined to find in favour of the plaintiff had it not been for the evidence of the warders assuring the court that the plaintiff walked unaided up the stairs after he tumbled down them. I am satisfied that it was physically impossible for him to have done so and the only conclusion I can come to is that they did not realise that there would be evidence presented that he was unable to walk. They tried to minimise the plaintiff’s injuries by alleging that he could walk after the fall. It is clear that they lied on this score. They could not have been mistaken or confused.


  1. I am accordingly satisfied that the plaintiff should succeed. The defendant is accordingly ordered:


  1. to pay whatever damages the plaintiff proves that he has suffered as a result of the assault which took place on the 16th June 2005;

  2. interest thereon at the prescribed legal rate a temporae morae;

  3. costs of suit;

  4. interest thereon at the prescribed legal rate from 14 days after allocator to date of final payment.






_______________________

L. D KEMP

ACTING JUDGE OF THE HIGH COURT



Matter heard on : 28,29 May, 1 June 2009


Judgment delivered on : 17th July 2009


Counsel for the Plaintiff : Adv C Wood


Attorneys for the : Gravett Schoeman Van

Applicant Rensburg & Moodley Incorporated

41 Arthur Street

KING WILLILAM’S TOWN


Counsel for the Defendant : Adv M Jozana


Attorneys for the : State Attorney

Respondent c/o Shared Legal Services

Office of the Premier

32 Alexandra Road

KING WILLIAMS TOWN