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IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION, GRAHAMSTOWN)                               

                                                                CASE NO.: 3910/2015

In the matter between:

NKOSIYABO BOTA                                                                                       Plaintiff

And

THE MINISTER OF POLICE                                                                   Defendant

JUDGMENT

BESHE J:

[1] Plaintiff instituted an action for damages against the defendant suffered as a result of injuries he sustained when he was allegedly assaulted by members of the South African Police Service whilst acting within the course and scope of their employment with the defendant.

[2] At the commencement of these proceedings I ordered a separation of issues in terms of Rule 33 (4), ruling that the merits be separated from the determination of the quantum of damages and for the merits to be determined first with quantum determination being postponed sine die.  

[3] In his particulars of claim, plaintiff who is an adult male person, alleged that on or about the 9 August 2013, at approximately 19h00 and at or near Mathew Goniwe Street, also known as Toilet City, in Duncan Village, East London, he was unlawfully and wrongfully assaulted by employees of the defendant. That as a result of the assault or unlawful conduct on the part of the employees of the defendant he sustained bodily injuries, to wit:

a fracture of the right leg, various other soft tissue injuries, bruises and abrasions.    

[4] The assault was denied by the defendant who pleaded instead that the plaintiff is the one who insulted employees of the defendant who were patrolling at Mathew Goniwe Street. That he thereafter ran away during the course of which he fell to the ground. It was defendant’s further plea that in the event of the court’s finding that plaintiff sustained any injuries to his leg as alleged, defendant pleads that plaintiff must have injured himself when he fell in the course of running away from the employees of the defendant (the police).

[5] Three witnesses testified in support of plaintiff’s action: the plaintiff, one Mr Nceba Mandla (Mandla) and plaintiff’s wife Mrs Vuyiswa Bota (Bota).

[6] Two witnesses testified on behalf of the defendant, those being: Sergeant Masixole Nhube (Nhube) and Captain Aubrey Pearce.  

[7] Plaintiff testified that he was forty seven (47) years old and employed as an administration officer / clerk attached to the Cambridge Police Station. Before that, he was a police reservist for eight (8) years based at Duncan Village where he also resides. Regarding the incident, plaintiff testified that the 9 August, which fell on Friday and was a Public holiday, was spent chatting with two friends at his house. During the course of which they shared 750ml two beers amongst the three of them. Later they accompanied one of the friends to C section of Duncan Village. On their way back, walking with one of the friends, Mandla, he observed two vehicles belonging to the police, both were stationery. Since he had previously worked at Duncan Village police station and knew members of the defendant that are based there, he mistook the driver of one of the motor vehicles a Kombi to be one Mkata and greeted the occupants of the vehicle saying “Hello gentlemen”. The police who were inside that vehicle alighted exclaiming “here is a success, they are drunk”. They held him and started assaulting him. They assaulted him with fists and open hands. When he tried to cover his face, he was accused of resisting an arrest and thrown to the ground which was uneven due to the fact that there was construction of houses underway in that area. The police thereafter threw him inside the back of a police van like a dog. As soon as the police van started moving, he felt a pain on his knee. The police drove around the township with him at the back of the van. Once when they had stopped at a tavern, in the process of carrying on with their duties, he moved the sail covering the window at the back of the van and called out to the police asking that they take him to hospital telling them that his leg was fractured. According to him Captain Pearce was the driver of the police van. It was later, whilst at the police station, upon seeing that his leg was swollen, did Captain Pearce direct his colleagues to take him to hospital. Which they did an hour after they had arrived at the police station. Apparently Mandla succeeded in fleeing from the police who were chasing the two friends (plaintiff and Mandla). Plaintiff testified that he was not charged with any offence following the incident.     

[8] During cross examination by defendant’s counsel, Mr Dala, plaintiff could not deny that the police were engaged in what is termed a “stop and search” operation at the time of the incident. It also emerged during cross examination that about eight police officers got out of the police vehicle and assaulted him after he greeted them, including Captain Pearce and his passengers who were in the police van. It became common cause that Nhube, then a constable was the driver of one of the police vehicles a Kombi. It also emerged that in addition to being hit with fists and open hands he was also kicked with booted feet on his buttocks. Explaining that in such situations there is no way that you can escape being kicked on the buttocks. It was put to the plaintiff that he swore at the occupants of the police vehicle as he was walking past it and then ran away. And that it was at that stage, as he was running that he fell because the ground was uneven. He vehemently denied this insisting that he was injured in the course of being assaulted by the police. He denied that the police took him to hospital at his request after he had fallen in the course of running away from them. Reasoning that the police do not pick up injured people from the street because their motor vehicles are not equipped to cater for the injured.   

[9] The next witness to testify was plaintiff’s wife Bota. She testified that she was not home on the day in question having gone on a visit to Kidd’s Beach. Whilst still there at about 19h00, she received a call from the plaintiff who informed her that he was under arrest and was at the time at the back of a police van with a fractured leg and in pain. Earlier that afternoon she had spoken to the plaintiff who did not sound inebriated. 

[10] Plaintiff’s last witness, Mandla, testified to the effect that: He was in the company of the plaintiff on the day in question. He confirmed that as they were walking back from accompanying another friend of theirs and as they were going past two police motor vehicles which were parked one in front of the other, plaintiff greeted the police. As a result of which the police came out of their vehicles. He did not want to see what they were going to do and took to his heels. He however did not go far, stopping a short distance away to observe what was going to happen to the plaintiff. He heard plaintiff asking why he was being arrested. He observed one of the policemen who was heavily built tackle the plaintiff causing him to fall. The police thereafter picked plaintiff up, placed him at the back of one of their vehicles, a van and drove away with him.

[11] During cross examination Mandla stated that he did not witness plaintiff being kicked. What he observed plaintiff was being manhandled by the police. He denied that plaintiff swore at the police.   

[12] Nhube who was the first witness to testify on behalf of the defendant confirmed that he was part of a “stop and search” operation during the evening in question in the Duncan Village area. Being the driver of one of the vehicles they were using to conduct the operation a Toyota Quantum (Kombi). They were under Captain Pearce’s command who was driving a police van. He was driving ahead of Captain PeaRce’s motor vehicle as they came across the plaintiff and his companion walking towards the police vehicles. Plaintiff called out Warrant Officer Mkata’s name. Upon not getting a response from inside the police motor vehicle, the plaintiff called out officer Fulela’s name. Once again there was no response because none of the two officers mentioned were part of the police contingent in the two vehicles. He then proceeded to hurl insults at the police. Nhube brought the vehicle he was driving to a stop so that the two men could be searched. Both ran past the police vehicle. Other officers in the motor vehicle jumped out, presumably to give chase. Nhube remained inside the motor vehicle and according to him he did not observe what happened thereafter because the action unfolded behind the vehicle he was driving. His colleagues came back and reported that they managed to catch up with plaintiff but that he fell and they suspect that he was injured and he requested that the police assist him. Because there was no space in the vehicle he was driving, plaintiff was placed in the van Pearce was driving. They drove to the police station, where, after making the necessary entries there, Pearce instructed him to take plaintiff to hospital. He denied that he assaulted the plaintiff.                 

[13] During cross examination by counsel for the plaintiff Mr Du Toit, it emerged that Nhube was required to make a statement by a member of the Independent Police Investigation Directorate (IPID) in respect of a complaint that was lodged by the plaintiff in connection with the incident in question against him and Pearce. He was questioned about the content of his statement where he stated that plaintiff was drunk and he fell, in view of the fact that in his evidence he stated that he did not observe what happened. He answered that he was told by his colleagues. This is a report that was made by his colleagues to him. Nhube was asked about what three individuals who were part of the police contingent during the evening in question told the IPID investigator according to their statements. Those were Messrs Fungile Kolisi and Siyabonga Mabele as well as Ms Siziwe Mbangani. It was put to Nhube that Mbangani and Kolisi made no mention of plaintiff having called out Mkata and Fulela’s names. It also emerged during cross examination that Nhube who presented as a heavily built man, has always been like that even at the time of the incident. He however testified that there were other heavily built officers in the Kombi.

[14] Pearce confirmed that he was the driver of the van in which plaintiff was placed. That he was the commander of the “stop and search” operation or crime prevention duties. He was driving the police patrol van with Reservist Mabele as passenger and that Nhube was driving a Quantum Kombi. He testified that he stopped behind Nhube, he observed two male persons approaching the driver’s side or Nhube and swearing at the occupants of the Kombi and that they then ran away past the Kombi, during the course of which plaintiff fell. Some of the police officers who had alighted from the Kombi brought the plaintiff to his vehicle reporting that plaintiff was complaining of an injury on his leg. He denied that plaintiff was manhandled by his colleagues in any way. He denied that after the plaintiff was placed in the vehicle he was driving he carried on with his duties and stopped at a shebeen in the process, saying he drove straight to the police station. He denied that he alighted from the van at the scene or that he assaulted the plaintiff. He also denied that the plaintiff was assaulted by the officers under his command that evening.

[15] During cross examination he indicated that plaintiff fell next to the Kombi. And that he observed both plaintiff and his companion swore at them. It was put to him that in his statement Mabele who was with him I the patrol van does not say anything about plaintiff falling. All he says is that his colleagues brought the plaintiff who was drunk and swearing to Pearce’s vehicle. He responded that this is what Mabele observed, it is his version. He maintained that he did not see Nhube alight from the Kombi at the scene where plaintiff ended up being placed in the patrol van. This concluded the evidence of the defendant.

[16] It is clear from the summation of the evidence that the crisp issue in this matter is whether or not plaintiff was assaulted by the functionaries of the defendant on the 9 August 2013 at Toilet City, Duncan Village, East London. It is also clear that the parties presented divergent versions. It was common cause between the parties that plaintiff bore the onus to prove his case on a balance of probabilities. That being the case, namely parties having presented divergent versions and the onus being on the plaintiff to prove his claim on a balance of probabilities, the following principle enunciated in National Employers’ General Insurance Co Ltd v Jagers[1] 1984 (4) SA 437 E at 440 D – G became applicable: 

“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.”

Equally instructive in this regard is the approach suggested in SFW Group Ltd and Another v Martell Et Cie and Another[2]where the court stated the following:

“[5] On the central issue, as to what the parties actually decided, there are two irreconcilable versions.   So, too, on a number of peripheral areas of dispute which may have a bearing on the probabilities.   The technique generally employed by courts in resolving factual disputes of this nature may conveniently be summarised as follows.  To come to a conclusion on the disputed issues a court must make findings on (a) the credibility of the various factual witnesses; (b) their reliability; and (c) the probabilities.  As to (a), the court’s finding on the credibility of a particular witness will depend on its impression about the veracity of the witness.  That in turn will depend on a variety of subsidiary factors, not necessarily in order of importance, such as (i) the witness’s candour and demeanour in the witness-box, (ii)  his bias, latent and blatant, (iii) internal contradictions in his evidence, (iv) external contradictions with what was pleaded or put on his behalf, or with established fact or with his own extracurial statements or actions, (v) the probability or improbability of particular aspects of his version, (vi) the calibre and cogency of his performance compared to that of other witnesses testifying about the same incident or events.  As to (b), a witness’ reliability will depend, apart from the factors mentioned under (a)(ii), (iv) and (v) above, on (i) the opportunities he had to experience or observe the event in question and (ii) the quality, integrity and independence of his recall thereof.  As to (c), this necessitates an analysis and evaluation of the probability or improbability of each party’s version on each of the disputed issues.  In the light of its assessment of (a), (b) and (c) the court will then, as a final step, determine whether the party burdened with the onus of proof has succeeded in discharging it.  The hard case, which will doubtless be the rare one, occurs when a court’s credibility findings compel it in one direction and its evaluation of the general probabilities in another.  The more convincing the former, the less convincing will be the latter.  But when all factors are equipoised probabilities prevail.”  

[17] Counsel for the plaintiff submitted that plaintiff was an honest, reliable, credible and truthful witness so was Mandla who witnessed the assault on the plaintiff. Further that there were no material discrepancies in their evidence. Mr Du Toit levelled criticism at defendant’s witnesses inter alia on the basis that they are not credible and reliable witnesses. That their evidence should be scrutinized in light of the fact that they have a real and substantial interest in not being found responsible for the assault, in order to safeguard / ensure a good record with their employer.

[18] On the other hand counsel for the defendant, Mr Dala argued that plaintiff has failed to discharge the onus of proving his case on a balance of probabilities.

[19] In his evidence plaintiff testified that he mistook or thought Nhube was Mkata. He however denies that he called out Mkata’s name. Nhube on the other hand testified that plaintiff called out Mkata’s name and when this did not elicit any response he called out Fulani’s name. Upon not getting a response he started swearing. If however it only occurred to plaintiff that Mkata was the driver of the police Kombi, and he did not call his name out, how did Nhube know what was going on in his mind? Because according to him, plaintiff called out Mkata’s name. It is not probable that he did in fact call Mkata’s name, as well as Fulani’s and did not get a response because none of the two were in the police Kombi. Plaintiff testified that he was not drunk because they did not have much to drink with his friends. They only shared two beers. His wife also confirmed that during an earlier call, she could tell that plaintiff was not drunk. According to the plaintiff, the police remarked that “here was a success”, they are drunk. I am not suggesting that defendant’s employees would have been justified in chasing and or assaulting plaintiff if he was drunk. All I am trying to do is to understand or make sense of his version. During his evidence in chief, he indicated that after greeting the police, they came out of the Quantum (Kombi) and charged at him, arrested him and started to assault him with fists and open hands. He then described how they tackled him to the ground. During cross examination he stated several times that police came out of the Kombi and there were about eight of them. It was at this stage that he stated that others came from the van Pearce was driving. The following emerged from his evidence at this stage:

Mr Dala: So how are you saying that passengers from Captain Pearce’s van also alighted and also assaulted you?

Plaintiff: One cannot make sure, cannot be sure of that, all of them came out of that van, but I know it was Pearce who was driving the van, because there were many of them.

Court: Did Captain Pearce also alight from the van?

Plaintiff: That is correct M’Lady. Yes everybody in those vehicles came out.

But throughout his evidence in chief he testified that police officers alighted from the Kombi. Now for the first time during cross examination it emerges that some officers alighted from the police van as well, including Pearce who, according to plaintiff, also joined in the assault. When it was put to him that in his statement to the police he mentioned that he was also kicked with booted feet, his response was that yes he was kicked on his buttocks. Adding that there is no way that you cannot be kicked on the buttocks in a situation like that. It was also during cross examination that plaintiff stated that it was in fact Nhube who was in the forefront of the assault, he clapped him, struck him with fists, kicked him and tackled him rugby style causing him to fall. Yet in his examination in chief he said the police assaulted him without giving any details as to who did what. It was also put to him that in his statement to the police he did not state that Nhube was in the forefront of the attack on him or that Pearce also assaulted him. It is also noteworthy that plaintiff did not make any mention of being tripped or tackled to the ground or falling in his statement to the police. Still on the subject of police statements, although the police docket which forms part of plaintiff’s bundle, contains a statement that was purportedly made by Mandla, he denies having submitted one. He however confirms that the signatures appearing on the said statement are his signatures. The statement is more or less in the same terms as plaintiff’s statement to the police. The following is contained in the statement:

“All the policemen that were in that Quantum came out. The Quantum was full of police coming straight to Bota. I took cover five metres away from the Quantum. The police hit Bota with closed fists, kicking him. Bota asked what did he do to them. After finishing hitting him / assaulting him, they threw him at the back of the van and drove away with him.”

No mention of plaintiff having been tackled to the ground or falling by Mandla in his statement just as is the case with plaintiff’s statement. It is not clear why Mandla disavowed making a statement to the police, which incidentally bears his signature and is the similar vein with plaintiff’s statement.

[20] Granted that the plaintiff and Mandla testified during 2017 and the incident had occurred in 2013, but in my view at the time plaintiff and Mandla submitted their statements to the police in 2013, the events of the 9 August 2013 would have been fresh in their minds. But none of them mentioned that the plaintiff was tripped or tackled.

[21] During the trial, defendant’s witnesses were questioned at length about an investigation that was conducted by IPID and statement made by their colleagues, some of whom were reservists, to the IPID investigator. In a report compiled by IPID entitled CASE INVESTIGATIVE REPORT, the allegations are summarised as follows:

“It is alleged that complainant was assaulted by South African Police Service members with open hands and kicked with booted feet. He was then paced at the back of the Quantum and was taken to Duncan Village Police Station. He was later taken to St Dominics Hospital where he was treated. He sustained a fractured leg as a result of the assault.”     

Here too, it will be noted, there is no mention of member/s of the defendant tackling plaintiff to the ground. This is also in line with the statements submitted by the plaintiff and Mandla to the investigating officer – which as I understand is separate from the investigation conducted by IPID. In my view the inescapable conclusion is that the allegation about being tackled to the ground was an afterthought. This in my view impacts on the credibility and the reliability of the plaintiff and Mandla as witnesses. In the particulars of claim, under injuries, plaintiff alleges inter alia that he sustained a fracture of the right leg and various other soft tissue injuries, bruises and abrasions. However in his evidence, plaintiff only testified about a fractured leg. The clinical records that were placed before me make no reference to any soft tissue injuries, bruises or abrasions.       

[22] I have already pointed out the improbabilities in plaintiff’s evidence, such as the one where the police mention that plaintiff called out Mkata’s name. He says he did not but did think that it was Mkata in the driver’s seat of the Quantum. What are the probabilities of plaintiff and Mandla omitting to mention the tripping / tackling in their statements to the police if this had occurred? I have already expressed my view regarding the credibility and reliability of plaintiff and Mandla as witnesses. In my considered opinion, the version presented by the witnesses for the defendant appears to be more probable. Namely that upon not getting a response after he had called out Mkata and Fulela’s names, plaintiff started hurling insults at the occupants of the Quantum and thereafter fled. He fell in the process and broke his leg. Defendant’s version being the most probable, I conclude that plaintiff has not succeeded in discharging the onus of proving his case on a balance of probabilities. It follows therefore that his action should be and is hereby dismissed.

[23] Plaintiff’s claim against the defendant is dismissed with costs.   

 

_______________

NG BESHE

JUDGE OF THE HIGH COURT

APPEARANCES

 

For the Plaintiff            :           Adv: AJ Du Toit

Instructed by                :           WHITESIDES ATTORNEYS

                                                53 African Street

                                                GRAHAMSTOWN

                                                Ref: R Asmal/mk/C11430

                                                Tel.: 046 -622 7117

 

                                                                              

For the Defendant         :           Adv: I Dala

Instructed by                :           STATE ATTORNEY

                                                29 Western Road

                                                Central

                                                PORT ELIZABETH

                                                Ref.: V Madokwe/1585/2015/E

                                                Ter.: 041 – 585 7921/2

c/o YOKWANA ATTORNEYS

                                                EPS Building

87 High Street

                                                GRAHAMSOWN

                                                Ref.: Mr Yokwana

                                                Tel.: 046 – 622 9928

 

Date Heard                   :           31 May 2017 and 1 June 2017

Date Heads filed           :           10 July 2017 (Plaintiff), 14 July 2017 (Defendant)

Date Delivered             :           16 November 2017

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