IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)

CASE NUMBER: 32261/13

(1)	REPORTABLE: NO
(2)	OF INTEREST TO OTHER JUDGES: NO
(3)	REVISED
DATE: 08 OCTOBER 2021

In the matter between:

JONAS MATLHODI MAKHANI								      PLAINTIFF

And

MINISTER OF POLICE									  DEFENDANT

JUDGMENT

TLHAPI J

[1]	The plaintiff instituted action against the defendant seeking damages he suffered consequent upon the unlawful arrest and assault at the hands of members of the South African Police while in police custody at Beitbridge, Musina on 29 December 2013.

[2]	The plaintiff pleaded that he had been unlawfully detained for four hours (4) and his claim is based on vicarious liability in that the police officers, were at the time acting within the cause and scope of their employment with the defendant in the South African Police Services. The plaintiff claims R100 000.00 (a hundred thousand) for the unlawful arrest and R200 000.00 (two hundred thousand) for the damages suffered as a result of the assault, plus interest at 15.5%.

[3]	In its amended plea the defendant denied liability; denied knowledge of the arrest and alleged assault. The defendant also raised the non-compliance with section 3 of the Legal Proceedings Against Certain Organs of State Act 40 of 2002, however, this plea was not proceeded with at trial as the notice had been discovered.

[4]	An application for absolution from the instance was made by the defendant after testimony on behalf of the plaintiff was finalised, and this is dealt with below.

[5]	At commencement of the trial the parties were agreed to a separation of issues and that the issue of quantum be separated from merits in terms of Rule 33 (4) of the Uniform Rules of Court. The matter proceeded on the issue of merits only.

Summary of Evidence

[6]	The plaintiff testified that he was a clearing agent for sixteen years. His work entailed the clearing of goods or trucks and other vehicles at the Beitbridge Border Post. On 29 December 2012 he had gone to the Receiver of Revenues Offices (SARS) in Musina at about 11h00 to submit documents from his previous employer. On his return he proceeded to the Duty -Free shop also situated in the customs area at the border post to buy water, it was a hot day. On his way out of the shop he met a gentleman he did not know, who asked to be directed where he could have his passport stamped. He asked the gentleman how he had travelled to the area and he replied that he had flown in. The plaintiff confirmed this on his examination of the gentleman's passport. He directed the gentleman towards a certain que and while conversing with him he felt a tug on his trouser belt from behind. He recognised a senior police officer, one Tsikelele, who was well known to him and who worked around the area where he executed his duties as clearing agent. At the same time Tsikelele held the gentleman he was with by his hand. Tsikelele detained them and placed them in separate cells at the border post which were within walking distance.

[7]	There were two detainees in the cell he was taken to. The cell was 5x5 metre in size, it had no windows, no washbasin and no toilet facilities. In the cell he was assaulted by Tsikelele with clenched fists on the body and when he tried to ward off the blows Tsikelele tightly hand-cuffed him, tripped him and he fell backwards and, Tsikelele sat on his chest and punched him on his eyes and body with clenched fists. He was left in the cell for about an hour. At about 13h00 with his hands still cuffed he was taken out and made to lie on his stomach on a tiled surface and in the sun. His head was pushed downwards till his face touched the ground. It was very hot. He passed out. Water was poured over him. He was detained for about 7 – 8 hours.

[8]	Later the police returned and they wanted to know what he had intended to do with the gentleman's passport. Another police officer arrived and told those present that he knew nothing. He was then uncuffed and released. He proceeded to Ronny's office to report the assault by Tsikelele. His face and writs were swollen. Thereafter he went to the police station where he was given a J88 form. He arrived at the hospital at around 18h30 and it was only at 19h00 when he was informed that there were no doctors available. He was told to return the following day on 30 December 2012. He was then seen by a doctor and he went back to the police station where he found the other officers who were present during the assault. They informed Tsikelele of his presence. He was reluctant to report his complaint to them. A white police officer arrived and he explained what had transpired the day before. The officer told him to lay criminal charges. He lay charges and was taken back to the border post. Tsikelele denied having assaulted him.

[9]	In cross-examination the plaintiff was questioned about the absence in the police docket of the J88 form. The allegation of assault was again denied and it was put to him that there was no assault in that there was no J88. He was adamant that the J88 was handed over to the police. His injuries were also seen by Ronny and his attorneys were able to trace proof that he was seen by a doctor on 30 December 2012. Although the personal details were his, the plaintiff denied that the signature on a statement in Bundle "F" page 22 was his, although he admitted that the signature on the discovery affidavit in Bundle "D" was indeed his. He was uncertain if a statement was taken from him when the docket was opened. He could not identify his signature on copies of documents of the docket in Bundle "F" but he was certain that he had signed some documents. He was asked if he could see properly and he replied that he could not since his injury. He was questioned on the disparity between his evidence that he was detained for 7-8 hours against what was stated in his pleadings. The version of Tsikelele was put to him that one of the police who was present would testify that he was not assaulted, and there was no J88. He was adamant that the J88 was handed over to the police when the docket was opened, the J88 had disappeared but there was proof that he had been seen by a doctor on 30 December 2012 besides, Ronny had seen his injuries. He was adamant that he had handed over a J88.

[10]	Mr Ronny Muthale ('Ronny') testified that he knew the plaintiff. They worked in the same area but not for the same company. On 29 December 2012 at around 18:00 the plaintiff walked into his office and he observed that he was badly assaulted. The plaintiff's face was swollen, he had blue eyes and his hands around his writs were swollen. Further, he also observed scratches on the eyebrows as if plaintiff had been involved in a fight. His sight was not good and he appeared confused, mixed up. He enquired about the injuries and the plaintiff told him that he had been assaulted by the police. He was not a witness to the incident.

[11]	In cross examination Ronny was questioned if he had observed that the plaintiff was wet, as he had alleged that water was poured over him; whether he knew if the plaintiff had laid a criminal charge against Tsikelele; whether he had been interviewed by the police. He responded that he had not observed any dampness on the plaintiff except that he saw the injuries and he did not know anything about the criminal case.

[12]	At the close of plaintiff's case the defendant applied for absolution form the instance. The application was opposed. Some of the reasons advanced were that the version of the plaintiff was not probable given the contradictions in his evidence; that the plaintiff had denied his signature; then there was the absence of the J88 form and that plaintiff was not a credible witness. It is trite that at this stage of the trial it is not about making definite findings or dealing with probabilities, unless and in exceptional cases the version of the plaintiff was untenable and he fails to make out a prima facie case.

[13]	In Gordon Lloyd Page & Associates v Riviera and Another 2001 (1) SA 88 (SCA) at paragraph [2] Harms JA mentioned the test applicable and as formulated in Claude Neon Lights (SA) v Daniel (1976 (4) SA 403 (A) at 409 G-H:

"When absolution from the instance is sought at the close of the plaintiff's case, the test to be applied is not whether the evidence led by the plaintiff establishes what would finally be established, but whether there is any evidence upon which a Court , applying its mind reasonably to such evidence, could or might (not should nor ought to) find for the plaintiff."

Harms JA continued in the same paragraph:

"This implies that a plaintiff has to make out a prima facie case in the sense that there is evidence relating to all the elements of the claim- to survive absolution without such evidence no court could find for the plaintiff…..As far as inferences from the evidence are concerned, the inference relied upon by the plaintiff must be a reasonable one. The test has from time to time been formulated in different terms, especially it has been said that the court must consider whether there is 'evidence upon which a reasonable man might find for the plaintiff…..a test which had its origin in jury trials when 'the reasonable man' was a reasonable member of the jury…..Such formulation tends to cloud the issue. The court ought not to be concerned with what someone else might think; it should rather be concerned with its own judgment and not that of another 'reasonable person or court.' Having said this, absolution at the end of the plaintiff's case, in the ordinary course of events, will nevertheless be granted sparingly but when the occasion arises, a court should order it in the interests of justice."

[14]	It is the test of the reasonable man that counts, it is about the court at this stage being of the view that prima facie, the elements of the plaintiff's case have been established. It should not be about whether the plaintiff has made out such a case, that at the close of the plaintiff's case the court may find for him. As I see it, the reasons advanced seek to suggest to the court that in the absence of a J88 form injuries cannot be proved and further, that contradictions in the plaintiff's evidence impact on his credibility, therefore absolution should be granted. It was argued for the plaintiff that the reasons advanced for the defendant should not be the determinant and that the evidence of Ronny was also to be considered when deciding whether a prima facie case has been made out.

[15]	Having heard argument I dismissed the application for absolution from the instance and ruled that the trial proceed.

[16]	Lt Colonel Tsikelele (Tsikelele) was head of the police units at the Beitbridge Border Post. He was in charge of daily briefings to all units, task teams and security personnel at the Border. The 29 December 2012 was a busy day, with many people travelling in and out of the country. He was from his office on the way to the Duty Free shop when he noticed two people pulling at each other as if fighting. He approached them and one of them fled, and the other one remained behind and was screaming at the one who was fleeing saying "bring my money, bring my money". Tsikelele gave chase, this man later fell to the ground and Tsikelele caught up with him, held him and took him back to the man who remained behind. According to Tsikelele it was reported to him that the man he had caught had promised to have his passport stamped but the problem was that the man took the money, a sum of R370.00, and left the passport behind. Tsikelele testified that the man denied having taken the money. Tsikele conducted a search of his person and found a sum of R370.00 on him. Tsikelele took both men to the charge office. He summoned warrant officer Letsoalo who was attached to the task team, which was set up to curb robbery of tourists under the pretext that their passports were going to be stamped. Letsoalo was briefed on the plaintiff and the other man who was a Malawian National. The latter informed them that he would not pursue criminal charges against the plaintiff since his money had been retrieved. Tsikelele denied the assault, he did not carry handcuffs but his subordinates did carry them. He denied that there were cells at CSC (community service centre). He was aware that criminal charges had been laid against him

[17]	In cross examination Tsikelele could not recall the rank he held at the time of the incident; he admitted that he was informed on 30 December 2012 of the criminal charges against him, he did not know if the plaintiff had been instructed to have a J88 completed; he denied that there was an arrest; he denied that he had caused the plaintiff to be locked up; he could not give reasons why his version of the incident was not put to the plaintiff; he had no knowledge why the evidence or contents in the docket went missing, but he explained that if they had gone missing there was a way in which replacement documents could be obtained.

[18]	Warrant Officer Letsoalo (Letsoalo) was commander of a unit set up at the border post, to oversee incidents where tourists had been robbed of money and passports. On 29 December 2012 Tsikelele who was his senior reported an incident which allegedly involved three individuals, a Malawian, Zimbabwean and South African. The South African was the plaintiff and Tsikelele handed over a sum of R370.00 he had allegedly taken from the plaintiff and Tsikelele left him in the presence of the plaintiff and the Malawian. He also realized that the plaintiff had been hand - cuffed, and with his key he unlocked the handcuffs. The plaintiff told him that the Malawian had asked him to have his passport stamped. Being aware of the prevalence of fraudulent activities at the border Letsoalo enquired from the plaintiff where he was going to when he met up with the Malawian and the plaintiff remained silent. Letsoalo asked the Malawian who replied that the plaintiff was known to him and that the plaintiff had always assisted with the stamping of his passport, that he was surprised why the plaintiff fled with his money on that day. Letsoalo asked the Malawian for a statement and the Malawian declined to give one. The Malawian's passport was taken to Home Affairs where he was given a R1000.00 fine and arrangements were made for his deportation. He was not responsible for handcuffing the plaintiff and he was not present when this was done. He assumed that the plaintiff had been handcuffed at CSC. Letsoalo denied that there was a holding cell at the border post. There were no cells at CSC and when they had made any arrests the detainees are taken to Musina. He denied that the plaintiff had been detained. He was with the plaintiff for about 30-35 minutes after which he told him to go home,

[19]	In cross examination he confirmed that the plaintiff had been handcuffed with his hands behind his back when he found him in the presence of Tsikelele; he removed the handcuffs because the plaintiff was making gestures that is when he saw the handcuffs. He testified that the plaintiff was always in his presence from that time on wards.

[20]	Mr Ndinawtyi was a constable employed at the Musina police station. He testified that he was not on duty on 29 December 2012, however, he was posted to the Musina Police station on 30 December 2012. The plaintiff arrived to lay a criminal charge. He took down a statement from the plaintiff who identified himself as Makhani. He was seeing the plaintiff for the first time. The statement is the one on pages 21 and 22 of the trial bundle "F',. He read the statement back to the plaintiff and he agreed with the contents and both signed the document. He also completed the documents A1, 3MA and 3MB. He did not see any visible injuries on the plaintiff and he did not give him a J88.

[21]	In cross examination Mr Ndinwtyi testified that he knew the plaintiff by sight. This witness who preferred to testify in his vernacular language was questioned on his English proficiency because the statement which purported to be that if the plaintiff was written in English and whether the services of an interpreter were engaged when he took the plaintiff's statement. He testified that although the plaintiff's statement was written in English he conversed with the plaintiff in the Venda language and there was no interpreter present, he gave the statement to the plaintiff to read for himself.

[22]	Mr Netshaulu, was the last witness for the defence. He was group commander of detectives at the Musina Police station and was charged with the investigation of the assault charge against Tsikelele. He had an interview with the plaintiff who persisted with the allegation of assault and plaintiff informed him that he had handed in a J88 when he lay a criminal charge against Tsikelele. He explained that there was no J88 form in the docket, and nothing was recorded in the investigative diary about the J88. He then gave the plaintiff another form to be completed by a doctor. The plaintiff informed him that he had been to the hospital but his bed letter could not be traced. On 24 July 2013 he went to the hospital and no bed letter could be traced. An entry in their computer came up with an entry with a similar name dated 25 July 201O. He could not trace the plaintiff's hospital file and could not secure a J88. His activities were noted in the investigative diary. A feedback report was made and signed by him and the plaintiff appended his signature in his presence. He also took down a statement from the plaintiff regarding the assault. He did not observe any injuries on the plaintiff when he interviewed him. The docket was taken to the National Director of Public Prosecutions who declined to prosecute Tsikelele.

[23]	In cross examination this witness was asked if it was possible for him to have seen injuries on the plaintiff of 18 March 2013 and he was not certain. He was asked why he failed to bring the original police dockets with contents to court as requested, to enable examination of the investigative diary. The witness had provided copies and could not give an explanation why page 2 of the investigative diary had been excluded.

Analysis of the Evidence

[24]	It is trite that the plaintiff bears the burden to prove his case in respect of claims 1 and 2 on a balance of probabilities. It must be established from a consideration of all the facts that his version is true and that of the defendant is false and, a finding in his favour will also depend on the credibility of the witnesses.

Unlawful Arrest: Claim 1

[25]	The amended plea of the defendant recorded:

"a.	The defendant denies having arrested and detained the plaintiff on the said date and accordingly the plaintiff is put to the proof thereof;

b.	Further to the above the defendant avers that the Plaintiff does not even appear in the Occurrence Book of the said day and the detention list respectfully and the plaintiff is put to the proof thereof."

[26]	The plaintiff’s evidence that he was handcuffed was confirmed by Letsoalo a commander at the CSC, who testified that after being summoned by Tsikekele who had brought the plaintiff to CSC, he discovered that the plaintiff had been handcuffed and that he had to uncuff him. Letsoalo gives no reason why he felt obliged to uncuff the plaintiff, except that he explains that he realised that the plaintiff was cuffed with his hands at the back after observing plaintiff’s uncomfortable gestures. In my view, the gestures could only have been caused if the handcuffs were tight and, caused pain as testified to by the plaintiff. The plaintiff would only have been cuffed if he was under arrest and was regarded as a flight risk. He could only have been taken to CSC and handed over to Letsoalo if he was under arrest. This coincides with the plaintiff's version that after he was handcuffed by Tsikelele and after being taken from the 'cell' he was caused to lie in the sun, another officer came along, and he was uncuffed and told that he had done nothing wrong and released. According to the plaintiff's testimony the unlawful arrest occurred before Letsoalo arrived on the scene.

[27]	Tsikelele testified that he did not carry handcuff's on him but that they were carried by other members. Tsikelele had been in the presence of the plaintiff and the Malawian gentleman before he took them to CSC. The question then arises who handcuffed the plaintiff if not Tsikelele himself. In my view the handcuffing of the plaintiff was without just cause and it constituted an arrest, and having regard to Tsikelele's evidence this pointed to an arrest under circumstances the defendant failed to plead to.

[28]	In my view the circumstances under which the plaintiff was taken to CSC by Tsikelele and handed over to Letsoalo, who was the commander, placed a duty on both to have recorded the incident in the Occurrence Book. The fact that no charges were preferred against the plaintiff should not have absolved them from recording of the incident in the Occurrence Book. The fact that this was not done cannot be attributed to the plaintiff or expected of the plaintiff to prove. Letsoalo testified that he was given R370.00 which was allegedly unlawfully taken by plaintiff from the Malawian. He handed the amount back to the Malawian after the Malawian declined to make a statement or to file a complaint against the plaintiff. Letsoalo was obliged to note this in the Occurrence Book. He released the plaintiff and failed to make a recording and to give reasons for the release of the plaintiff in the Occurrence Book. However, he testified that he went ahead to ensure that the Malawian was sanctioned, fined and deported and still there is no record to show that this indeed occurred in the Occurrence Book under circumstances which involved the plaintiff. I don't see the relevance of why the defendant made refence to the Occurrence Book and detention list in its plea. The absence of any record made of the incidents of that day in the official reporting books in particular the Occurrence Book, by senior members in the defendant's employment raises questions on the credibility of both Tsikekele and Letsoalo, and as I see the raising such issue could only have been intended to protect Tsikelele from prosecution.

[29]	Tsikelele and Letsoalo denied the existence of holding cells at CSC. The plaintiff in cross examination stated that he called it a cell because the door of the room in which he was detained had a grill and this was not disputed by the defendants. The plaintiff was employed in that vicinity for about 16 years, Tsikelele was known to him, he was familiar with the surrounding area. In my view it is improbable that the plaintiff could have been mistaken about the existence of a room of that description.

[30]	The plaintiff pleaded that he was detained for about 4 hours and he testified that he was detained for about 7-8 hours. On consideration of the evidence as a whole, I find that it is probable that he could have been detained between 4 to 5 hours. He went to SARS at 11h00 and proceeded to the Duty Free shop. He testified that he spent about an hour in the "cell" and at 13h00 he was placed in the sun, where he passed out. After he was released by Letsoalo he proceeded to Ronny's office, from there he went to the police station where he was given a J88 to be completed by a doctor. He arrived at the Hospital at 18h30 and was only informed of the unavailability of doctors at about 19h00.

[31]	In my view Tsikelele was not a credible witness. His entire version was not put to the plaintiff, neither was there any indication in the amended plea that the arrest by Tsikelele was lawful. The evidence of Tsikelele suggests he arrested the plaintiff without a warrant having reasonably believed that he was committing an offence, that is, when he gave chase, caught up with the plaintiff, searched him and took him to CSC. Under the circumstances, this constitutes a typical example where the onus should have been reversed and for the defendant to prove that the arrest was lawful. In my view, the version of Tsikelele should have been pleaded in that it would have qualified for an arrest without a warrant in terms of the Criminal Procedure Act 51 of 1977 as amended, section 40 (1)(a) being an arrest of a person who attempted to commit an offence in his presence or, section 40(1)(e) an arrest for being found in possession of anything reasonably suspected to be stolen property or, property dishonestly obtained according to what he alleged was reported to him by the Malawian gentleman. I view Tsikelele's version to be nothing but a fabrication, and his version should be rejected.

[32]	The arrest of the plaintiff on the evidence was an infringement of his basic rights to liberty. It is for the reasons above that I find that the plaintiff's arrest was unlawful.

The alleged Assault by Tsikelele: Claim 2

[33]	The plaintiff pleaded as follows:

"As a result of the assault, the plaintiff
11.	had to undergo medical treatment;
11.2	was admitted at Musina Hospital;
11.3	was unable to work for 3(three) weeks and consequently suffered a loss of income;
11.4	suffered contumelia;

The relevance of a J88 Form and proof of the alleged assault (Claim 2)

[34]	A J88 form is a legal document described as a Report on a Medico-Legal Examination by a Health Care Practitioner and also constitutes a certificate in terms of sections 212 (4), 212(8) and 213 (3) of the Criminal Procedure Act 51 of 1977 as amended. The provisions in the Criminal Procedure Act provide that the certificate is objective evidence and is prima facie proof of what is contained therein. When the victim reports an assault to the police with the purpose of pursing a criminal prosecution, a J88 is provided for completion independently by a doctor or nurse to record the nature of the injuries sustained as comprehensively as possible. The J88 has to be accompanied by an affidavit from the doctor or nurse attesting and corroborating the fact that the victim was examined and seen by them on a particular date, alternatively they must be called to testify. In my view the J88 is also investigative in nature in that it not only assists the police in their investigation, it also assists the prosecution and the courts to determine the severity of the injuries and appropriate punishment, or in a civil case an appropriate award of damages.

[35]	It is common cause in these proceedings that there is dispute as to whether or not the plaintiff handed in a J88 form when he came to lay a charge against Tsikelele. He says he did and this is denied by the defence. As I see it, the defence is relying on the existence of this form because there is a denial in the amended plea that Tsikelele assaulted the plaintiff. The question that now arises is where the plaintiff bears the onus to prove the assault and the injuries sustained on a balance of probabilities, is he confined to prove the injuries according only to what would have been contained in the J88 or can he rely on other evidence.

[36]	Letsoalo, testified that except for uncuffing the plaintiff he did not observe any injuries on him, Ndinawtsi who allegedly took the plaintiff's statement on 30 December 2012 did not observe any injuries and did not give the plaintiff a J88 form. Netshaulu went to Musina Hospital in July 2013 in search of the plaintiff's hospital file and could it could not be traced. The plaintiff testified that his attorneys were able to trace his hospital file and that he saw the doctor's annotations of the injuries he observed on his examination on 30 December 2012. No witness was called for the plaintiff to verify the content of this document and there was no evidence as to when and where it emanated from and such evidence it would not have been admissible at trial.

[37]	Despite the absence of the J88 or evidence from the doctor who saw the applicant at hospital I am persuaded that there was an assault because I found that plaintiff and Ronny to have been credible witnesses. The plaintiff was uncertain whether some of the signatures in Bundle "F" were his and at some point he was asked by the defence if he could see properly and he replied that not since his injury. This was not pursued and I am of the view that those contradictions if any were of not consequence. The plaintiff persisted with the charge of assault even causing an attempt to trace his hospital file several months after the assault. Ronny was adamant that he saw the injuries on the plaintiff and no blemish should be put on him because he was not consulted by the police for purposes of the criminal trial against Tsikelele. The only problem I have is that in the absence of cogent and comprehensive medical evidence as to the severity of the assault, I cannot find that the assault was a grievous one that it resulted in the plaintiff being hospitalized. There was no evidence that he was hospitalized because after a visit to the hospital on 30 December 2012, he testified that he took the completed J88 to the police station to lay a charge against Tsikelele. I am satisfied that there was an assault by Tsikelele and that the defendant was liable for damages suffered as a result.

[38]	As a result the following order is made:

1.	The defendant is liable for damages suffered by the plaintiff consequent upon his unlawful arrest and detention;
2.	The defendant is liable for damages suffered by the plaintiff consequent upon the assault upon him;
3.	The determination of quantum is postponed sine die.
4.	Costs are reserved.

TLHAPI VV
(JUDGE OF THE HIGH COURT)

MATTER HEARD ON: 					25 OCTOBER 2021
JUDGMENT RESERVED ON: 				28 OCTOBER 2016

ATTORNEYS FOR THE APPLICANT: 		ERWEE ATTORNEYS 
C/O DYASON INC.
ATTORNEYS FOR THE RESPONDENTS:	THE STATE ATTORNEYS