South Africa: Eastern Cape High Court, Grahamstown

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[2013] ZAECGHC 91
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Vuso v Minister of Safety and Security (3907/09) [2013] ZAECGHC 91 (2 September 2013)
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IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE, GRAHAMSTOWN)
Case No.3907/09
Dates Heard: 20-21/8/13
Date Delivered: 2/9/13
Not Reportable
In the matter between:
NOLUTHANDO VUSO ...................................................................................Plaintiff
and
MINISTER OF SAFETY AND SECURITY .................................................Defendant
Damages claim for assault and unlawful arrest and detention – onus – credibility of witnesses and probabilities.
JUDGMENT
PLASKET, J:
[1] The plaintiff alleges in her particulars of claim that, on 31 July 2007, members of the South African Police Service (the SAPS), acting within the course and scope of their employment, unlawfully entered her home at 15 D Street, Grahamstown while she was naked, assaulted her by slapping her in the face and spraying pepper spray in her face, arrested her and detained her for a period of about five hours. On the basis of these alleged infringements of her personality rights, she claimed the globular amount of R240 000 in damages from the defendant.
[2] The defendant’s plea is to the effect that while a constable Hambaze of the SAPS, acting within the course and scope of his employment, entered and searched the plaintiff’s home on 31 July 2007, she was not naked when he entered the house, she allowed Hambaze access to her house and consented to the search. It is denied that the plaintiff was assaulted as alleged or at all and it is also denied that she was arrested and detained.
[3] As a result of the denial of all of the allegations upon which the plaintiff’s claim is based, the onus rests on the plaintiff to establish that she was assaulted unlawfully and that she was arrested and detained. If she succeeds in establishing that she was arrested and detained, she will succeed in respect of that aspect of her claim because the defendant has not sought to justify an arrest with reference to the presence of the necessary jurisdictional facts.1
[4] The plaintiff’s evidence was that, on the morning of 31 July 2007, while she was washing herself in her one-room house, four members of the SAPS knocked on the door, shouted and swore at her, instructing her to open the door, before bursting in. When they entered she was naked. While she was dressing, she was slapped in the face and throttled by a policeman named Kayser. Pepper spray was sprayed in her face by a white policeman wearing a bullet proof vest. She was asked whether she had dagga in the house and the house was searched after she said that she did not have any dagga.
[5] She was then arrested. Her hands were handcuffed behind her back, she was led outside where a crowd had gathered and more policemen were present and she was placed in an unmarked car. She was driven to police offices in Hill Street, Grahamstown where she was held for about five hours while being questioned before being allowed to leave. When she was released, she walked home, stopping at a petrol station on the way to wash her face to neutralise the effects of the pepper spray. On the following morning she went to her attorneys and instructed them. They sent a letter of demand to the National Commissioner of the SAPS on 6 August 2007, within a week of the incident.
[6] Her boyfriend, Mxolisi Kalashe, testified that he had been called back from work when the police raided the house he shared with the plaintiff, that he had been standing outside the house when she was brought out by the police with her hands handcuffed behind her back before being placed in an unmarked car and driven away. He was at home when, at about 17h00, he saw her walking back to the house after her release.
[7] Two witnesses testified on behalf of the defendant. Constable Khayalethu Hambaze was in command of the raid on the plaintiff’s house. He stated that he was accompanied by two female constables, constable Ndumiso Petros and a constable Mantla. He had decided to raid the plaintiff’s house because he had received information that dagga was being sold from it.
[8] He knocked on the door of the plaintiff’s house and announced that he was a policeman. Shortly thereafter, she opened the door and allowed him and his colleagues access. She was clothed in a long dress that covered her knees. He identified himself as a policeman and showed the plaintiff his appointment certificate. He informed her of the reason for their presence and requested permission to search for dagga. Although she shouted at him and said that they would find nothing, she granted permission to search. Petros and Mantla proceeded to search the house. Mantla found some dagga under the bed and Petros found some on a table. Hambaze described the amount of dagga as being insignificant and not enough to justify an arrest. When the dagga was found on the table, however, the plaintiff swept it onto the floor with her hand, scattering it.
[9] Despite this, Hambaze informed her that he did not intend to arrest her, although he warned her not to interfere with them. He said that they wanted to know where she had obtained the dagga and requested her to accompany them to their offices for questioning. She accompanied them, in their unmarked car, to the Saamspan Building in Hill Street which was, at that time, the offices of the unit of which he and his two colleagues were members, Crime Intelligence Gathering (CIG). She was questioned about the dagga (which Hambaze destroyed by washing it down a drain) and given his cellphone number and nickname (Kayser) so that she could contact him if she ever had information for him. She was then taken home. From when the police raided her house to when they took her back to it took about an hour. Hambaze denied that he forced his way into her house, that she was naked when they entered, that she was assaulted by him or anyone else, that a fourth, white, policeman wearing a bullet proof vest was present in the house and had pepper sprayed her, that she was handcuffed, that she was arrested, that she was held for five or six hours and that she had walked home after being allowed to leave. Petros gave evidence which supported Hambaze’s evidence on all of the material issues.
[10] The proper approach to determining the facts in a civil trial was set out authoritatively in this court by Eksteen AJP in National Employers’ General Insurance Co Ltd v Jagers:2
‘It seems to me, with respect, that in any civil case, as in any criminal case, the onus can ordinarily only be discharged by adducing credible evidence to support the case of the party on whom the onus rests. In a civil case the onus is obviously not as heavy as it is in a criminal case, but nevertheless where the onus rests on the plaintiff as in the present case, and where there are two mutually destructive stories, he can only succeed if he satisfies the Court on a preponderance of probabilities that his version is true and accurate and therefore acceptable, and that the other version advanced by the defendant is therefore false or mistaken and falls to be rejected. In deciding whether that evidence is true or not the Court will weigh up and test the plaintiff’s allegations against the general probabilities. The estimate of the credibility of a witness will therefore be inextricably bound up with a consideration of the probabilities of the case and, if the balance of probabilities favours the plaintiff, then the Court will accept his version as being probably true. If however the probabilities are evenly balanced in the sense that they do not favour the plaintiff’s case any more than they do the defendant’s, the plaintiff can only succeed if the Court nevertheless believes him and is satisfied that his evidence is true and that the defendant’s version is false.’
[11] I turn now to analyse the evidence. While the plaintiff’s evidence was, generally speaking, given in a straightforward manner and it was internally consistent to a greater or lesser extent, there are a number of issues that I shall highlight that go to the probabilities of its being true and that impact on her credibility as a witness.
[12] The first problem that faces the plaintiff is that there is no objective evidence to corroborate her version. There is no documentary evidence to prove, for instance, that she was arrested. If she had been arrested, one would have expected that, at least, she would have been warned of her constitutional rights and have been furnished with a document to establish that this had been done. While the absence of a written record – a paper trail – does not necessarily mean that the plaintiff was not arrested, its absence makes it that much more difficult for her to establish that she was arrested.
[13] Secondly, the plaintiff testified that the effects of her having been slapped and sprayed in the face with pepper spray endured for about two days and was evident for all to see: her face was swollen and her eyes were burning and red. In addition, her throat was sore and her face was numb. She consulted with her attorneys little over 12 hours after the time that, according to her, she was released by the police. Despite her discomfort, she never sought medical assistance either before or after consulting with her attorneys. She treated herself, she said, with Panado tablets. More surprisingly, her attorneys, who were instructed at that early stage to institute a damages claim against the defendant for, inter alia, the alleged assault, never referred her to a doctor for a medical examination so that any signs of assault could be recorded. She also was not referred to a photographer so that any visible signs of assault could be captured visually and used as evidence.
[14] Thirdly, the plaintiff testified that throughout the day after she had been pepper sprayed, her eyes and face were burning from its effects. When she was released, she walked up Hill Street to Beaufort Street and turned left to walk home. It was only when she reached an Engen filling station that she stopped to wash her face and eyes in an effort to neutralise the effects of the pepper spray. She was not able to explain satisfactorily why she did not stop at the first filling station that she would have come across, on the corner of Hill and Beaufort Streets, or at either of the next two filling stations that she would have come across before reaching the Engen filling station. This and the failure of the plaintiff to seek medical treatment or at least to have the physical evidence of the assault she claims to have been subjected to recorded for purposes of establishing her claim strike at the heart of the credibility of her version.
[15] In addition, there were various aspects of her evidence that I consider to be implausible or inconsistent. There was an inexplicable contradiction of some importance between the plaintiff’s pleadings and her evidence. It was pleaded that she was assaulted by being slapped and pepper sprayed but in her evidence she added that she had also been throttled. The letter of demand, written a week after the event, makes no allegation that she was throttled. Both the particulars of claim and the letter of demand state that the plaintiff was slapped ‘continuously’ but, in her evidence, she stated that she was only slapped twice.
[16] Some of the plaintiff’s evidence can only be described as bizarre. She testified that after the police entered her house they said they wanted clothing before they accused her of selling dagga. When she was in their offices and had been questioned about her knowledge of people dealing in dagga, she said that she was given Hambaze’s name and cellphone number and told that if she saw people stealing clothes from washing lines, she should contact him. I cannot imagine a reason for Hambaze to speak in riddles like this and, not surprisingly, these strange allegations were not put to either of the defendant’s witnesses.
[17] Although the plaintiff’s evidence that she was arrested by the police and only released at about 17h00 was supported by her boyfriend, there are certain difficulties with his evidence. He stated, when asked about the plaintiff’s injuries, that she had complained of a sore neck and that her body was uncomfortable, both complaints that she had not mentioned in her evidence. Secondly, he stated that when she was arrested, he made no attempt to ascertain where she had been taken. He offered a rather lame explanation for this by saying that there was no need to do so because he believed that as she had been taken by the police, she would return. Thirdly, when he was asked whether, when he entered the house soon after the plaintiff had been taken away, he had smelled anything strange or experienced any irritation of the eyes or throat, his answer was that he had not smelled anything strange or experienced irritation of the eyes or throat, thus undermining the plaintiff’s evidence that she had been pepper sprayed in the house.
[18] I have criticised the evidence of the plaintiff and her boyfriend but the evidence tendered on behalf of the defendant is also open to criticism. While both Hambaze and Petros made generally good impressions on me when they testified, both encountered certain problems in cross-examination. For the most part, these problems were not of much moment and related to peripheral issues. So, for instance, Hambaze first stated that he had waited a few minutes before the plaintiff opened the door to her house but he later said that he had only waited a few seconds. I was not impressed with his efforts to deny that he had changed his version but the fact remained that what he meant when his evidence is considered in context is that he did not have to wait very long before the plaintiff opened the door. He was also taxed about whether the policemen who waited outside the house had arrived before he had or at the same time. Again, this is peripheral to the main issues in dispute and it is likely that all of the raiding team would have arrived at more or less the same time. Either way, nothing much turns on this.
[19] So too with Petros. There were one or two instances of her trying vainly to change her version to fit in with other evidence. I think, in particular, in this regard of her evidence concerning the plaintiff trying to throw away the dagga that was found. In her evidence in chief she had said that the plaintiff had swept it onto the floor. When she was confronted with a signed, but not commissioned, statement that she had made which referred to the plaintiff having thrown the dagga out of the house, she tried to marry both versions by saying that the plaintiff had done both: she had swept some of the dagga onto the floor and thrown some out of the door of the house. Once again, while her evidence in this regard was unconvincing and cannot be explained except on the basis of an unacceptable attempt to tailor her evidence, it was peripheral to the main issue; and the fact that her evidence on this aspect is open to criticism does not detract substantially from the quality of the rest of her evidence.
[20] There are certain additional aspects of both versions that are before me that lead me to the conclusion that the probabilities are against the plaintiff’s version and are in favour of the defendant’s version.
[21] The plaintiff testified that she was questioned at the CIG offices for about five hours but, from the recounting of what occurred in the offices, it is unlikely that she spent that long there. She was questioned, and not in any detail, it would appear, about her knowledge of local dagga dealing and asked for information. She was never left on her own for a period. It is extremely unlikely that what happened in the CIG offices, on her version, could have taken anywhere near five hours. It is more likely to have taken about half an hour as testified to by the defendant’s witnesses.
[22] It was the unchallenged evidence of Hambaze that if pepper spray had been used on the plaintiff, it would also have affected him and his colleagues, and its effects would have made it impossible for them to have taken the plaintiff to the CIG offices in their car. When this is juxtaposed with the evidence given by Kalashe in cross-examination that he did not smell pepper spray or experience its effects when he entered the house shortly after the plaintiff left with the police, and that he made no mention in his evidence of having seen any signs of the plaintiff having been pepper sprayed when she left with the police (although he saw such signs five hours later), it is improbable that she was assaulted and pepper sprayed as alleged. (The plaintiff’s evidence was that even when she was at the CIG offices, tears were still streaming down her face from the pepper spray.)
[23] The plaintiff’s evidence was that she was pepper sprayed by a fourth policeman, who was white and wore a bullet proof vest. The evidence of Hambaze and Petros was that only they and Mantla entered the house and that neither they nor any of the policemen present outside wore a bullet proof vest. Kalashe made no mention of having seen a white policeman wearing a bullet proof vest among the policemen accompanying the plaintiff from the house and in the car. On the totality of the evidence, it is unlikely that there was this fourth policeman present in the plaintiff’s house. This finding further undermines her version that she was slapped and pepper sprayed.
[24] The mere fact that the plaintiff shouted at the police and was upset when they entered her house is not necessarily inconsistent with her consenting to the search: she may well have felt that there was nothing to gain from refusing to consent. Similarly, even though she interfered with the police in the execution of the search by trying to disperse the dagga that was found, that does not necessarily mean that she would have been arrested, given the small quantity of dagga involved and Hambaze’s decision to attempt to obtain information from her concerning bigger fish. I also find that there is nothing improbable about Hambaze’s decision to ask the plaintiff to accompany him and his team to their offices, given the fact that something of a crowd had gathered outside the plaintiff’s house.
[25] Once it is accepted, as it must be in my view, that the amount of dagga found in the plaintiff’s house was ‘insignificant’, it is all the more probable that Hambaze did indeed take a decision not to charge her but to try to obtain information from her about who had supplied the dagga. This is also consistent with the common cause fact that Hambaze gave her a piece of paper with his name and cellphone number so that she could furnish him with information.
[26] In all of these circumstances, I am unable to find that the plaintiff has discharged the onus of proving on a balance of probabilities that she was assaulted, arrested and detained by Hambaze and his team.
[27] That being so, the following order is made:
The plaintiff’s action is dismissed with costs.
_______________________
C Plasket
Judge of the High Court
APPEARANCES:
Plaintiff: J Bester instructed by Mili Attorneys, Grahamstown
Defendant: S Rugunanan instructed by G M Yeko Attorneys, Grahamstown
1Minister of Safety and Security v Sekhoto & another 2011 (1) SACR 315 (SCA) para 7.
2National Employers’ General Insurance Co Ltd v Jagers 1984 (4) SA 437 (E) at 440D-G. See too Mabona & another v Minister of Law and Order & others 1988 (2) SA 654 (SE) at 662C-F; Stellenbosch Farmers’ Winery Group Ltd & another v Martell et Cie & others 2003 (1) SA 11 (SCA) para 5; Dreyer & another NNO v AXZS Industries (Pty) Ltd 2006 (5) SA 548 (SCA) para 30.