IN THE HIGH COURT OF SOUTH AFRICA (EASTERN CAPE DIVISION, GRAHAMSTOWN)

Transcription

1 1 SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy IN THE HIGH COURT OF SOUTH AFRICA (EASTERN CAPE DIVISION, GRAHAMSTOWN) In the matter between NOT REPORTABLE Case no: 1406/2015 Date heard: 2-3, 6-7 February 2017 Date delivered: 14 February 2017 G.D. WHITTAL Plaintiff vs MNQUMA MUNICIPALITY MINISTER OF POLICE First Defendant Second Defendant JUDGMENT PICKERING J: [1] In consequence of an incident which occurred on 9 May 2013 plaintiff instituted action against Mnquma Municipality as first defendant and the Minister of Police as second defendant. [2] In his particulars of claim plaintiff, who was born on [...] 1949 and who was employed at the time as a so-called End Controller at Hardware Warehouse in High Street, Butterworth, sets out four claims. In claim 1 plaintiff alleges that at approximately 17h30 on the said day and in High Street, Butterworth, in front of the premises of Hardware Warehouse, he was wrongfully and unlawfully arrested without a warrant by members of the South African Police Services unknown to him and/or by certain employees of the first defendant, namely, Traffic Officer Gcilitshana and Traffic Officer Matoti. He alleges that he was thereafter unlawfully detained for a period of approximately 4 hours. He accordingly claims from both defendants damages in the sum of R ,00.

2 2 [3] In claim 2 plaintiff alleges that at the same time and place Traffic Officer Matoti said the following injurious words to and of him, namely, You fat piece of white shit. Plaintiff accordingly claims from first defendant the sum of R70 000,00. [4] In claim 3 plaintiff alleges that at the same time and place he was assaulted by Traffic Officers Gcilitshana and Matoti as well as by members of the South African Police Services in consequence whereof he sustained certain bodily injuries. He accordingly claims damages against both defendants encompassing future medical expenses; past and future loss of income; and general damages in the sum of R ,00. [5] In claim 4 plaintiff alleges that on the same date and at Butterworth police station Matoti and/or Gcilitshana unlawfully and maliciously laid false charges of crimen injuria and assault with intent to do grievous bodily harm against him, thereby causing him to be prosecuted until such time as he was acquitted on 3 October He accordingly claims damages of R ,00 against first defendant. [6] In its plea first defendant alleges that the aforesaid traffic officers were dealing with the driver of a truck which had been parked in front of the premises of Hardware Warehouse in High Street, Butterworth, in a dangerous manner, obstructing the traffic while goods were being offloaded at the said business. First defendant alleges that plaintiff came out of the premises thereof and obstructed them in the course of their duties by assaulting traffic officer Matoti with open hands and fists whilst calling him a piece of shit and kaffir and saying fuck you. First defendant denies that any Traffic Officer assaulted plaintiff. [7] First defendant alleges that in consequence of plaintiff s actions he was overcome, handcuffed and arrested. It denies that plaintiff was arrested and detained by the traffic officers in its employ and avers that plaintiff was arrested and detained by and at the instance of members of the South African

3 3 Police Services. It alleges that the injuries sustained by him were caused by the handcuffs and by plaintiff having fallen as he was fighting even after having been handcuffed. [8] First defendant accordingly denies that the actions of the traffic officers were wrongful and unlawful in any of the respects alleged by plaintiff at all, including the alleged claim for malicious prosecution and denies that it is liable to pay to plaintiff any amount of respect of damages. [9] Second defendant in its plea denies that plaintiff was arrested by members of the South African Police Services. It alleges that such members had only assisted the traffic officers in the apprehension and transportation of plaintiff from the scene at High Street to the charge office as plaintiff was resisting arrest by the relevant traffic officers. [10] Second defendant avers that plaintiff was arrested by the traffic officers without a warrant for having committed the offences of obstruction; crimen injuria; assault on a Police Officer; and defeating the ends of justice. Second defendant avers that plaintiff was detained in police custody by the relevant traffic officers. Second defendant further denies that any member of the South African Police Force assaulted plaintiff and denies that any injuries which may have been sustained by plaintiff were occasioned in consequence of any assault upon him by members of the South African Police Services. In this regard second defendant specifically denied that any member of the Police Service had stood on plaintiff s legs and back whilst pushing his head to the ground. [11] At the commencement of the hearing before me I ordered by agreement that the issues of the merits and of quantum be separated. The trial accordingly proceeded on the merits only. [12] A compact disc containing two very short videos that were taken during the incident was handed in as Exhibit 1 together with an agreed transcript of

4 4 the content thereof. A set of photographs, Exhibit A, was also handed in by consent. [13] Although certain special pleas had been taken by the defendants I was informed that these had all been abandoned. [14] In his testimony plaintiff confirmed that he was, on 9 May 2013, employed in Butterworth by Hardware Warehouse as an End Controller in the store, checking that customers received the correct goods. At that time his health was poor. He frankly conceded, with some considerable degree of understatement, that he was extremely overweight at the time, as indeed appears from the photographs in Exhibit A. He had, some months previously, undergone invasive surgery to remove a brain tumour which was followed by a further procedure in April 2013, a month prior to this incident. His right knee was badly damaged in consequence of an old rugby injury and he stated that he could barely walk around the block. In his words he was not exactly fighting fit. [15] He stated that shortly after 17h00 a large truck and trailer bearing bags of cement for the shop arrived outside the premises. As can be seen from the Google map photographs (Exhibit A5 and A6) of High Street and the premises of Hardware Warehouse there is, in front of Hardware Warehouse, no curbstone, the road leading directly onto the pavement. At the time of the incident there was a gravel section of road between the concrete pavement and the tarred portion of the road. According to plaintiff there was no demarcated loading zone in front of the premises despite Mr Ngumle, who appeared for first defendant, putting to him that there was one. The lack of a loading zone he said, had long been a bone of contention between the business and the first defendant which had for years neglected to paint any lines on the road surface demarcating such area. He also denied that there was any yellow line on the road in front of the premises, as was put to him under crossexamination. He had worked for six years at Hardware Warehouse and no such line had ever existed. He stated that the area where the truck had parked was used all the time for offloading of goods. The truck parked on the gravel part of the road surface adjacent to the pavement. As plaintiff put it,

5 5 the road virtually goes into the shop. As can be seen from the Google map photographs (A5 and A6) there is a large entrance leading directly from the pavement into the warehouse. Plaintiff stated that a truck of the size of the one offloading cement could not fit through this entrance. I may mention that this evidence was not disputed by either defendant under cross-examination. [16] Plaintiff went out to instruct the driver of the truck to reverse into the usual area where goods were offloaded on the pavement. On his way back into the shop he saw blue lights in front of the truck. He went out again to investigate. He saw that there was a traffic police patrol car parked on the wrong side of the road, facing the front of the truck, nose to nose, thus preventing the truck from moving forward preparatory to reversing in order to offload. There were two traffic officers present. He knew one of them as traffic officer Matoti. He stated that Matoti regularly patrolled High Street, looking for allegedly illegally parked trucks. [17] The driver of the truck had disembarked, leaving the truck s engine running, and, according to plaintiff, the officers were pulling him around, grabbing his arms. Plaintiff gained the impression that they were arresting him. The driver then broke free and took out his wallet and opened it to show something inside it to the officers, presumably his driver s licence. [18] Plaintiff stated that he was annoyed by the conduct of the traffic officers. He believed that they were acting unlawfully inasmuch as the truck, being on the gravel section of the road, was not in the middle of the road as alleged by first defendant and was not obstructing any traffic. The offloading was also taking place in a reasonable manner. He spoke to the traffic officers in isixhosa, saying words to the effect of no guys, we are working here. They ignored him. Matoti then climbed into the truck, switched off the engine and climbed out with the keys. Plaintiff then said what the fuck are you doing? According to him Matoti responded loudly and angrily saying get out of my way you fat piece of white shit. It was put to plaintiff under crossexamination that he had, inter alia, called Matoti a kaffer. He denied this emphatically. He pointed out that he had at that time been working in

6 6 Butterworth at Hardware Warehouse for eight years and had also been involved as a Facilitator in agricultural development in the erstwhile Transkei area for many years. The clientele of the Warehouse was almost exclusively made up of black local inhabitants of Butterworth with whom he had a good rapport. He had been accorded a respectful nickname by the local community and he is a fluent isixhosa speaker. Furthermore his service contract with the Warehouse dictated that he show respect and concern for its clientele and the community at large. He was clearly offended and upset at the imputation that he was a racist. [19] Matoti then pushed plaintiff hard and punched him. Plaintiff fended off the blows but lost his balance and fell to the ground. He tried to push himself up with his hands but found himself face down on the ground again. Whilst on the ground he saw a police bakkie arrive. His hands were grabbed and forced behind him. There was a struggle to handcuff him, during the course of which his right shoulder was dislocated. At one stage he could not breathe because somebody was standing on his head. He could feel a person or persons walking on his back and someone then stood on his legs, as indeed appears from photograph A1, which, inter alia, depicts a police officer who, it is common cause, is Warrant Officer Peyi, standing on his legs. Photograph A1 also shows plaintiff lying on his stomach in the process of being handcuffed by three men. It is common cause that the man in the reflective yellow jacket is Traffic Officer Gcilitshana and the traffic officer in uniform closest to the camera is Traffic Officer Matoti. There was some dispute between first and second defendants as to the identity of the third man who is obscured behind Matoti. First defendant alleged that this man was a policeman whereas second defendant alleged that he was another traffic officer. [20] Plaintiff states that he managed to get his shoulder back into its socket but he was then pulled up and it dislocated again, causing him considerable pain. [21] He was taken to a police bakkie and put roughly into the back, face down. After the tailgate was raised and closed he managed to right himself

7 7 and sit against it. He stated that his mouth was bleeding in consequence of his head having been forced against the road surface when some-one stood on it. The injury is depicted on photograph A4. [22] The police then drove off with him down High Street. Instead of turning right into the road at the bottom of High Street which leads directly to the police station the bakkie turned left into Main Street which was very busy. The bakkie proceeded down Main Street to the last robot leading towards East London before turning off Main Street and proceeding to the police station. He was off loaded there and staggered up the steps. As he entered the charge office he was pushed and fell. He was kicked from behind by Matoti. He was then taken through the police station to the holding cells. Matoti told him that he could look forward to a very good night as arrangements had been made for him to be with a couple of men. Matoti also told him that when he got out of detention they would have a nice fight and I will fuck you up. [23] Eventually the handcuffs were removed from plaintiff s wrists. The injuries occasioned by the tight handcuffs to his wrists are depicted on photo A3. [24] Plaintiff stated that up to this point he had not been told why he was being arrested and detained or what the charges against him were. It is common cause that it was only at 19h00 that he was interviewed and informed by a policeman at the police station that he was investigating the alleged offences of Obstruction, Crimen Injuria, Assault and Defeating the ends of Justice. (Exhibit C). He was eventually released at 23h00, apparently as a result of the intervention of the Station Commander, Captain Jordaan. [25] Immediately before being released at 23h00 he was given a summons to appear in court but the charges on which he was to appear were not specified therein. He did eventually appear in the magistrate s court, Butterworth, on charges of crimen injuria and assault. The only witness for

8 8 the State was Matoti. Plaintiff was acquitted at the end of the State case after the magistrate rejected Matoti s evidence. [26] Stuart Renton was, on the day in question, the manager of Hardware Warehouse, having worked there for eight years. He testified that it was close to closing time and the cashiers were cashing up when a staff member came into his office and told him that something was going on with the plaintiff outside. At that time cement was being off loaded from a large truck and Potgieter was operating the forklift vehicle known as a hyster. [27] Renton went outside. He saw plaintiff being lifted to his feet by two uniformed officers and thereafter being loaded onto the load bed of a bakkie. He asked plaintiff what had happened. Plaintiff replied that he was being arrested and that his shoulder was very painful.. Renton asked one of the policemen to loosen the handcuffs but the policeman did not respond to this. Renton then took the picture (Exhibit A4) of plaintiff on the back of the bakkie. He stated that at the time plaintiff was lifted up to his feet he was obviously very unsteady on his feet and not aggressive. [28] Renton then telephoned the station commander, Jordaan, who undertook to find out what had happened. Thereafter Renton proceeded with Potgieter to the charge office where he asked the police what offences plaintiff was being charged with. According to Renton they could not tell him. Plaintiff was eventually released at approximately 11pm, apparently at the instance of Jordaan. [29] With regard to the position of the truck Renton confirmed that it was parked on the side of the road on the gravel section between the pavement and the tarred section. It was put to him by Mr. Ngumle that the truck had been illegally parked inasmuch as it was not within the loading zone which was demarcated by a yellow line. Renton denied that any such line existed at the time. With reference to the Google map (A5) he pointed out that there was a line in front of the immediately adjacent store, Ellerines, but that the line ended at Ellerines and did not extend further towards Hardware Warehouse.

9 9 If it had been extended further it would have been on the gravel part of the road. He confirmed that the municipality had been requested to no avail to demarcate a loading zone in front of the Warehouse. [30] Shuan Potgieter was employed at Hardware Warehouse as Assistant Manager. At the time of the incident he was driving the hyster, offloading cement from the truck. According to him the truck was parked legally in what he termed as the normal place. He too denied that there was any demarcated loading zone or yellow line in front of the business premises. [31] Whilst offloading was in progress a traffic patrol vehicle arrived and parked on its wrong side of the road facing the truck nose to nose thereby preventing the truck from moving forward. Two traffic officers got out of the motor vehicle and approached the driver of the truck who opened his wallet to show them something. [32] One traffic officer then got into the truck, switched off the engine and took the key. Potgieter then saw plaintiff approaching the officers. He could not hear what was being said. He then saw one traffic officer, who he knew as Matoti, push plaintiff on the chest area. Plaintiff reacted to this and knocked Matoti s hand down whereupon the officer delivered three punches at plaintiff, one striking him on the right shoulder and two hitting him on the left side of the head. One of the traffic officers then moved behind plaintiff and put his leg out causing plaintiff to fall. Plaintiff fell onto his back. He struggled to get up but fell onto his right side, with his hands under his chest. Potgieter denied that plaintiff had assaulted Matoti and denied that plaintiff was being aggressive. [33] The traffic officers, standing one on each side of plaintiff, tried to get his hands out so they could handcuff him. Potgieter told them that they could see that his arms could not be joined with only one pair of handcuffs but they ignored him. They eventually manged to handcuff him. Plaintiff was clearly in pain.

10 10 [34] According to Potgieter the police appeared after the traffic officers had secured the plaintiff. One of the policemen standing behind Potgieter warned him that if he got involved he would shoot him. Potgieter felt a hard object being pressed into his back. One of the other policemen had his knee against plaintiff s back and, as Potgieter put it, literally climbed onto his back. He stated that the policeman had one foot on plaintiff s head, causing plaintiff to hit his head on the road. The policeman then walked on plaintiff s back and stood on his legs. Potgieter described this policeman, whom it is common cause was Warrant Officer Peyi as being the more aggressive one. It was put to him by Mr. Rugananan who appeared for second defendant that Peyi was the person who had brought plaintiff to ground. He denied this stating that at the time the police arrived plaintiff was already on the ground. Photograph A2 depicts plaintiff, having been handcuffed, lying on his side trussed up. [35] Plaintiff was then lifted to his feet and thrown onto the back of the bakkie. Potgieter accompanied Renton to the police station. There he saw the police and the traffic officers in an office talking to each other. He did not hear what they talking about. [36] Traffic Officer Gcilitshana testified on behalf of first defendant. He stated that on 9 May 2013 he was on patrol duty with Matoti. When they were in High Street he noticed a large truck offloading goods at Hardware Warehouse. It was parked in the middle of the road and not in a parking bay or at an offloading zone. According to Gcilitshana there was no loading area in front of Hardware Warehouse. Anyone wishing to offload a truck with goods for Hardware Warehouse was obliged to drive into the building through the large entrance as depicted in the Google maps photographs A5 and A6. The evidence on behalf of plaintiff to the effect that the truck in question was too large to enter the doorway was, as I have said, never challenged under cross-examination. Despite this, Gcilitshana insisted that the truck would have been able to enter through that doorway. He conceded, however, that he had never seen a truck of that size entering the building nor had he measured the truck and the entrance to ascertain whether it could do so.

11 11 [37] He stated that the truck was illegally parked. He insisted against all the photographic evidence to the contrary that there was a yellow line on the road demarcating the entrance to the warehouse. Although it had been put by Mr. Ngumle to the plaintiff and his witnesses that this line demarcated a loading zone where the off-loading should have taken place Gcilitshana now stated that it was, however, covered by dirt and was therefore not visible. He now stated that the line was not there to demarcate a loading zone but rather to indicate the entrance to prevent private vehicles parking there and accordingly to make it easy for trucks to access the building. [38] When he and Matoti saw the truck they put on the blue lights of their motor vehicle and turned around. He denied that Matoti had parked the vehicle nose to nose with the truck, despite the fact that this had never been disputed under cross-examination. He stated that their vehicle had been parked on the opposite side of the road in much the same position as that of the green truck which is depicted on the Google map A5. [39] On being shown the traffic vehicle which is visible on the video in front of the truck and which is clearly the only traffic vehicle on the scene he stated that he was unable to say whether that vehicle was his motor vehicle or not. He reiterated that he was certain that they had parked across the road and that anyone who said it was parked nose to nose with the truck was wrong. [40] He and Matoti then walked across the road to the truck. They made enquiries about the whereabouts of the driver and he appeared from somewhere around the truck. Matoti requested to see his licence which the driver showed him. Matoti explained to the driver that he was going to issue him with a traffic ticket. While Matoti was busy writing the ticket the plaintiff appeared from inside the shop. He was in a hurry, shouting and swearing in English at Matoti from the outset. This averment had never been put to plaintiff under cross-examination. Plaintiff said what the fuck are you doing and then went on swearing in the course of which he called Matoti kaffir. At this stage Matoti was standing in front of the truck. Under cross-examination

12 12 he stated that he actually did not hear what plaintiff was saying when he came out of the doorway of the shop. His evidence as to when plaintiff used the k - word was confused and contradictory. [41] He stated that he had not heard plaintiff calling Matoti a piece of shit as had been put to plaintiff under cross-examination. He said he would have heard it if it had been said. Asked how it was possible that Matoti heard it but not him if he was standing alongside Matoti he said that maybe plaintiff was speaking fast, so he did not hear it. He said plaintiff did speak fast now and then. [42] It was put to him that Matoti had said in a statement that plaintiff had said to him you are a dirty shit, just a piece of shit. Gcilitshana now said that maybe plaintiff did say that but that he did not hear properly. [43] In his evidence in chief he said that Matoti did not react when he was called the k-word but kept on writing out the ticket. Under cross-examination, however, he stated that Matoti replied saying you are obstructing me in my duty. He explained this contradiction by saying that it was now coming back to him. [44] Having sworn at Matoti plaintiff approached Matoti and pushed him, causing him to lean back against the truck. He then began assaulting Matoti with open hands and clenched fists without saying anything. Gcilitshana stated that he could not recall plaintiff saying what are you going to do despite this being contained in his own statement. [45] He could not say how many blows plaintiff had directed at Matoti. His evidence in this regard was confused and contradictory to the police statement he had made. He stated that he then pulled at plaintiff s belt from behind trying to get him away from Matoti. Plaintiff, however, grabbed hold of Matoti s lumber jacket and they both fell down to the ground with plaintiff somehow landing on top of Matoti. He could not explain how plaintiff had came to land on top, given that he was being pulled backwards whilst holding

13 13 onto Matoti. He stated that whilst plaintiff was on top of Matoti he did nothing. He was just lying there. He was asked by Mr. Cole, who with Mr. Miller, appeared for plaintiff, what his comment would be if someone had said that plaintiff was wrestling and kicking violently. He now said that plaintiff was resisting and stated I was moving plaintiff away. You can t just say he was doing nothing. As Mr. Cole correctly pointed out to him it was he himself who had said that plaintiff was lying on top of Matoti doing nothing. He then said that anyone who said that plaintiff was wrestling and kicking would in fact be telling the truth. It was put to him that in that case his evidence that plaintiff had been doing nothing must have been false but he now resorted to saying that maybe he had not heard the question or maybe he had not understood it. [46] He denied that the traffic officers had handcuffed plaintiff. The police had done so. He himself had no handcuffs in his possession. He could not remember whether Matoti had handcuffs with him. [47] He was asked whether after having been handcuffed plaintiff was still fighting in the light of the averment in first defendant s plea to this effect. He became completely evasive. He replied that plaintiff could be aggressive. Asked what that meant he reiterated that plaintiff was aggressive. He then said aggressive meant kicking. He then said that plaintiff could not fight at that stage but you could see he was resisting because he did not assist us to pull him up. He conceded, however, that this statement was not true in the light of the events depicted on the video. He conceded too that no traffic regulation existed which entitled the traffic police to impound a motor vehicle before a traffic fine was paid. He stated that in the present matter, however, the driver had the option not to pay the fine. He then conceded, however, that Matoti had taken the truck s keys with the object of forcing the driver to pay the fine and that his actions in doing so were unlawful. [48] He was referred to his statement where he had stated under oath that plaintiff had no visible injuries and was asked by Mr. Cole how he could have said this in the light of photograph A4. He replied that plaintiff had indeed had no visible injuries, and had only blood on his face. He could not see where

14 14 the bleeding was coming from and therefore he insisted that his statement was correct. It was put to him that in fact his statement was false because at that stage he was unaware of the existence of photograph A4. He then conceded that he had made a mistake by not recording that plaintiff was bleeding from the mouth. [49] He stated that after plaintiff was lifted to his feet plaintiff was taken to the police bakkie by the police. He denied that he and Matoti had put plaintiff in the bakkie as was put to him by Mr. Rugananan who appeared for second defendant. He insisted that the police had done so. He stated further that plaintiff had not been informed at the scene why had was being arrested. He did not know why he had not been so informed but stated that the police should have done so. [50] He stated that he and Matoti did not immediately follow the police to the police station because Matoti was still involved in giving the truck driver the ticket. They left later with Matoti driving. When he and Matoti arrived at the police station plaintiff had already been offloaded and was entering the charge office. He denied that Matoti had pushed and kicked plaintiff. He remained at the front of the police station writing out his statement. Some time later he left with Matoti to consult a medical practitioner at the Hospital because Matoti complained of a painful leg where plaintiff had kicked him. He confirmed under cross-examination that Matoti had been driving. Matoti s sworn statement was put to him wherein Matoti had stated that his leg had been too painful to drive. Gcilitshana replied at first that he did not know before stating that Matoti did drive but complained that his leg was painful. [51] At the conclusion of Gcilitshana s evidence first defendant closed its case without calling Matoti. [52] Second defendant adduced only the evidence of Warrant Officer Peyi. He was, on the day in question, a member of the Public Order Policing Unit ( POPS ), deployed to Butterworth. He was, together with his driver, Captain

15 15 Mlilo, patrolling the CBD of Butterworth in the police bakkie into which plaintiff was in due course to be loaded. [53] He noticed a crowd of people in High Street where a large truck was parked in front of Hardware Warehouse. They accordingly proceeded to the scene where he disembarked. He saw three traffic officers bending over plaintiff who was face down on the ground as depicted on photograph A1. They were struggling with plaintiff who was in turn struggling to stand up. [54] As Peyi approached the scene one of the traffic officers, Matoti, stood up at which everybody stood up including the plaintiff. Matoti told him that they wanted to arrest plaintiff who had assaulted and obstructed them. At some stage in his evidence, however, he said that Matoti informed him that plaintiff had obstructed the traffic. Matoti requested his assistance. At this stage plaintiff already had blood on his mouth and nose. [55] Peyi told the traffic officers to hold plaintiff on the upper body. He then grabbed plaintiff s left leg and twisted and pulled it. Plaintiff lost his balance and fell onto his stomach. According to Peyi he tried to hold plaintiff s legs with his hands but plaintiff was kicking out so instead he stood on plaintiff s legs as is indeed depicted in photograph A1. He stated that he was 1,8m tall and weighed 105 kg. By standing on plaintiff s legs he put paid to plaintiff s efforts to kick out. He stated that while he was standing on plaintiff s legs the traffic officers were still struggling to handcuff plaintiff. He estimated that he stood on plaintiff s legs for a period of approximately 5 7 minutes before plaintiff was securely handcuffed. He denied that he had also stood on plaintiff s head and back. He stated that he saw only one pair of handcuffs, these being in the possession of Gcilitshana. He stated that Gcilitshana s denial in this regard was false. [56] Whilst he was standing on plaintiff s legs he signalled to Mlilo who was sitting in the police bakkie, some 7 metres away, to call for backup. With reference to the video recording he stated that the two policemen seen lifting plaintiff to his feet were members of the reinforcements who had arrived 7 8

16 16 minutes after plaintiff had been handcuffed. Until such time as their arrival plaintiff had been left lying on his side on the ground as depicted in photograph A2, in other words for a period of 7 8 minutes. He was asked why plaintiff had not been picked up and taken to the police bakkie once he had been handcuffed. His already confused evidence became extremely evasive. He stated that he was waiting for Mlilo to reverse the police bakkie to where plaintiff was lying so that plaintiff could be loaded therein. Mlilo, however, could not reverse the bakkie because of the crowd of people who were around him. They had ignored Peyi s request to move away so that Mlilo could reverse the seven metres to where plaintiff was. Mlilo accordingly had to wait for the reinforcements to arrive in order for them to move the crowd away. [57] He was asked why the police did not use the teargas which he had stated was in the police bakkie. He said that he could not do so because the members of the crowd had not committed any offence. It was put to him that they were in fact on his version guilty of the offence of obstructing him in the course of his duty. To this he had no answer. He conceded that he did not know the traffic regulations and therefore did not know whether plaintiff had been lawfully arrested. He merely took Matoti s word as a peace officer and there was, so he said, therefore no reason for him to have heard the other side. [58] He stated that he did not pick plaintiff up and take him to the police bakkie, a mere seven metres away, because he thought that it would be easier for Mlilo to reverse the bakkie to where plaintiff was. He was asked again why he had not then put plaintiff on his feet whilst the reinforcements were being awaited instead of leaving him lying trussed up on the ground for seven to eight minutes. To this he now replied that he was not waiting for reinforcements and that immediately plaintiff had been handcuffed he had calmed down and was then picked up and taken to the bakkie. He was then asked, as to whether, in the light of this evidence, he now wished to change his estimate that plaintiff had been left lying on the ground for seven to eight minutes to which he responded, indignantly, that he was not changing his

17 17 evidence and that plaintiff had in fact only been picked up after seven to eight minutes once the reinforcements had arrived. [59] Once plaintiff had been picked up by policemen from the reinforcements he was taken by the traffic officers to the police bakkie and loaded onto it. [60] He conceded that without his assistance the arrest of plaintiff would not have taken place. He also conceded that the police had made common cause with the traffic officers in manhandling and detaining the plaintiff but denied that plaintiff had been arrested by the police. He averred that it was the traffic officers who had arrested plaintiff and caused him to be detained. [61] With regard to the photograph, A1, he averred that the three persons who were bending over the plaintiff were all traffic officers. He denied that at the time he was standing on plaintiff s legs there were only two traffic officers and that the third man in photograph A1 was also a policeman. [62] As I have said above, the plaintiff was, at the time, with respect to him, an obese man, far from being a picture of health. Peyi, however, on being asked to look at the photographs and give his assessment of plaintiff s condition stated that he regarded the plaintiff as a physically fit, strong and healthy looking individual and that in these circumstances it had been necessary to call for backup. [63] He stated that once plaintiff had been loaded onto the police bakkie Mlilo had driven to the police station. He denied that the police bakkie had turned left into Main Street instead of turning right directly to the police station. He stated also that, contrary to Gcilitshana s evidence, Matoti and Gcilitshana had been following right behind the police bakkie in their patrol vehicle and he denied that they had only followed some minutes later. He stated that he did not enter the charge office and was therefore not responsible for having detained plaintiff at the police station.

18 18 [64] Mr. Rugananan then handed in by consent an affidavit in terms of Rule 35(3) attested to by first defendant s Municipal Manager. Annexed thereto is an extract from the Traffic Police Occurrence Book made at 08h15 on 10 May This entry, which it is common cause was made by Matoti, reads as follows: Report Assault TO reports assault. I was on duty at the CBD at or near Hardware High street at about 17h30 attending a truck that was standing in the middle of the road. While I was attack by a white old out of no where with fists and insulting me. But we arrested him and opened a case against him. (sic) [65] Mr. Rugananan also handed in the relevant extract from second defendant s Occurrence Book in which it is apparent that no reference at all was made by any member of the South African Police Services to the arrest and detention of plaintiff at the police station. [66] As appears from the summary of the evidence above, the respective versions tendered on behalf of the plaintiff and the defendants as to what gave rise to the incident and what occurred during the course thereof are irreconcilable and mutually destructive. Furthermore, the versions of first defendant and second defendant are also irreconcilable and mutually destructive. The approach to be adopted in such circumstances appears from a number of cases such as National Employers General Insurance Co Ltd v Jagers (referred to with approval in Baring Eiendomme Bpk v Roux [2001] 1 All SA 399 (SCA)) and Santam Bpk v Biddulph 2004 (5) SA 586 (SCA)) where the following is stated at 589 G: It is equally true that findings of credibility cannot be judged in isolation, but require to be considered in the light of the proven facts and the probabilities of the matter under consideration.

19 19 [67] Plaintiff was, in my view, an excellent witness. Both Mr. Ngumle and Mr. Rugananan were hard put to advance any criticism of his evidence. Whatever discrepancies there may have been were not material but were, in my view, attributable to the fact that plaintiff had undergone an extremely traumatic experience. At one moment he was remonstrating with Matoti and at the next he was lying, injured, on the road, trussed up, as I have said, like a fowl. In these circumstances it is hardly surprising that his recollection of events may not have been perfect. In all material respects, however, his evidence was entirely consistent, clear and objective. [68] So too, in my view, were Renton and Potgieter excellent witnesses. The only criticism which Mr. Ngumle could level against Potgieter s evidence was that whereas plaintiff had testified that Matoti was pulling the truck driver Potgieter had said that he only saw Matoti having a discussion with the driver. [69] In my view this contradiction is an extremely minor one in the context of the case as a whole. In any event it must be borne in mind that such contradictions as there were, were to be expected given the fact that the witnesses were testifying as to rapidly unfolding events observed by them from different vantage points. [70] In S v Mkohle 1990 (1) SACR 95 (A) Nestadt JA stated as follows at 98f g: Contradictions per se do not lead to the rejection of a witness' evidence. As Nicholas J, as he then was, observed in S v Oosthuizen 1982 (3) SA 571 (T) at 576B-C, they may simply be indicative of an error. And (at 576G-H) it is stated that not every error made by a witness affects his credibility; in each case the trier of fact has to make an evaluation; taking into account such matters as the nature of the contradictions, their number and importance, and their bearing on other parts of the witness' evidence.

20 20 [71] I would refer further to S v Safatsa and Others 1988 (1) SA 868 (A) where the following was stated by Botha JA at 890 G: The fallacy in the argument for the accused is that it presupposes that either or both of the witnesses must be untruthful or unreliable simply because their observations did not coincide. Such an approach to the evidence is unsound. [72] Mr. Rugananan contended that Potgieter was not an impressive witness inasmuch as he had embellished his evidence by implicating an unidentified police officer who had allegedly approached him from behind and threatened to shoot him if he interfered. In my view, however, this criticism is wholly unjustified. It is clear from the evidence that according to Potgieter this incident occurred after the reinforcements had arrived on the scene and it is not, in my view, in the least improbable that the incident happened as testified to by Potgieter. Potgieter, an Assistant Manager at the Hardware Store and a forklift operator, impressed me as a very phlegmatic individual not given to flights of fancy. Indeed, he can be seen in the background of photograph A1 using his cellphone with one hand whilst standing calmly with his other hand in his pocket as the events unfolded in front of him. [73] I am always acutely aware of the fact that the witness box is a stressful environment for many witnesses, including honest witnesses endeavouring to recall with some degree of clarity events that happened some years previously. As has often been said, memory can play strange tricks upon a witness in the witness box. Conscious of this I am also hesitant to label witnesses who perform badly in the witness box with epithets such as pathetic. However, I cannot avoid doing so in the case of Gcilitshana. He cut a sorry and defensive figure in the witness box, his evidence being contradictory, confusing, evasive and improbable. A mere recital of the evidence given by him does not convey in any way the extent of his poor calibre as a witness. His evidence concerning the purpose of the yellow line, of which only he was aware, contradicted what had been put to plaintiff s witnesses by Mr. Ngumle. His evidence that plaintiff emerged from the

21 21 Hardware Warehouse already shouting and swearing is not only quite improbable, but was never put to plaintiff. His evidence that in some inexplicable manner plaintiff, who was being pulled backwards, somehow landed on top of Matoti is also quite improbable. I have set out above the contradictions in his evidence as to what plaintiff did after he allegedly landed on top of Matoti and do not intend to repeat them here. That he was prepared to lie under oath also appears from his police statement to the effect that plaintiff had no visible injuries. This false averment was made before the photographs came to hand. It was nothing more than a blatant attempt to cover up the fact that plaintiff had been assaulted. [74] To sum up, Gcilitshana was not the type of witness of whom it might be said, in the words of Mark Twain, that there was things that he stretched but mostly he told the truth. I have no doubt that, on the contrary, Gcilitshana s evidence, where it contradicted that of plaintiff and his witnesses, was fabricated in an attempt to cover up what had really happened. [75] Peyi was also, in my view, an extremely poor witness. His evidence that when he approached the scene everybody stood up, including plaintiff, and that Matoti advised him of the reasons for plaintiff s arrest is not supported by the evidence of any other witnesses, including that of Gcilitshana. This evidence was, in my view, clearly tailored to meet the charge that he had merely joined in the fracas without even enquiring what the reason therefor was. This evidence is, in my view, not only improbable but also clearly false. So too his evidence that plaintiff already had blood on his mouth and nose. This was clearly an attempt to distance himself from the averments that it was he who had occasioned the injury to plaintiff by standing on plaintiff s head. [76] Peyi s evidence that he viewed plaintiff as being physically fit and strong is risible in the light of plaintiff s actual condition as seen on the photographs, and can be rejected out of hand. In these circumstances his evidence that four law enforcement officials were unable to subdue and handcuff plaintiff, necessitating the call for backup, is also, in my view utterly

22 22 improbable. His evidence concerning the police bakkie and the inability of Mlilo to reverse a mere seven metres towards plaintiff because of the crowd of people who refused to move is equally improbable. Peyi is, after all, a public order policeman trained in dealing with situations of public violence. It is quite improbable, in my view, that between himself and Mlilo they were unable to control the persons in the crowd, who in any event according to him were not committing any offences, so as to enable Mlilo to reverse the police bakkie a distance of seven metres. In any event, as pointed out by Mr. Cole, once the reinforcements had arrived plaintiff was lifted to his feet and taken to the police bakkie on foot. [77] Mr. Cole submitted that the failure by first defendant to call Matoti as a witness was decisive of the matter against first defendant and that an inference that Matoti would not have been able to counter plaintiff s version of the events was irresistible. [78] The authorities concerning the failure by a litigant to call an available witness are clear. In Durban City Council v S.A. Board Mills Ltd 1961 (3) SA 397 (AD) the matter of Sampson v Pim 1918 AD 657 was referred to at 405 E G with approval. In Sampson s case the following was stated at 662: The inference is irresistible that his evidence would not have supported the plaintiff s case. It might of course have been negative as he may not have been keeping a lookout and so may not have been able to assist the court one way or the other. But if he could have given evidence favourable to the plaintiff it is inconceivable that he should not have been called. [79] In Munster Estates (Pty) Ltd v Killarney Hills (Pty) Ltd 1979 (1) SA 621 (AD) reference was made to the well known case of Elgin Fireclays Ltd v Webb 1947 (4) SA 744 (A) in which Watermeyer CJ stated at : It is true that if a party fails to place the evidence of a witness, who is available and able to elucidate the facts, before the trial court, this

23 23 failure leads naturally to the inference that he fears that such evidence would expose facts unfavourable to him. (See Wigmore ss 285 and 286) But the inference is only a proper one if the evidence is available and if it would elucidate the facts. [80] As stated in Munster Estates supra at 624E, whether such inference should be drawn depends upon the facts peculiar to the case where the question arises. [81] In the present case, as I have said, Matoti was central to the entire incident. He was the fulcrum on which first defendant s case turned. He was the man who was allegedly assaulted by plaintiff and to whom plaintiff addressed the injurious words in respect of which plaintiff was prosecuted. According to plaintiff the assault upon himself was initiated and perpetrated by Matoti; it was Matoti who abused and insulted him; it was Matoti who was the orchestrator of the malicious prosecution levelled against him, without whose false statement no prosecution would have been instituted. No one was better placed than Matoti, not only to refute those allegations but also to substantiate the claim that plaintiff had insulted him in such a racially offensive manner. And yet, despite having been present throughout in court, he was not called. [82] In my view the inference is indeed irresistible that Matoti was not called because the various statements made by him which had been put by first defendant s counsel to plaintiff s witnesses had been shown during the course of the able cross-examination of Gcilitshana to be false. To put it colloquially, Matoti, if called, was on a hiding to nothing. In any event, in circumstances where the evidence of the only witness called by first defendant, namely Gcilitshana, was utterly unreliable, untrustworthy and falls to be rejected wheresoever it contradicts the evidence of plaintiff s witnesses, it is clear that in the absence of any other evidence the first defendant has failed to discharge the onus upon it of proving that the arrest and detention of plaintiff was lawful. As stated in Sampson v Pim supra it is in the circumstances of

24 24 this case inconceivable that Matoti should not have been called had first defendant believed that his evidence would be favourable to it. [83] Despite the dispute on the pleadings and in the evidence between first and second defendant as to who actually arrested plaintiff it is clear, as appears from the extract of the Traffic Police Occurrence Book that the traffic officers were instrumental in effecting his arrest and detention. It is also clear that such arrest and detention were unlawful. In this regard I accept plaintiff s evidence that the truck was not parked in the middle of the road in such a manner as to obstruct the traffic. In any event, on plaintiff s evidence the truck driver had been instructed to move forward preparatory to reversing into position in order to offload the cement on the pavement. Before he had an opportunity to do so he was confronted by the patrol vehicle. [84] It is also clear and was correctly conceded by Mr. Ngumle that Matoti s action in removing the key from the truck in order to force the driver thereof to pay the fine at the police station was unlawful. In these circumstances plaintiff s overt annoyance at Matoti s actions is entirely understandable. It is regrettable that he gave vent to his annoyance in the coarse terms which he did but he could not for a moment have imagined the wrath that would be visited upon him in consequence of this. Be that as it may, there was no justification whatsoever for Matoti s actions thereafter. [85] With regard to second defendant, Mr. Rugananan conceded that, in the event of Peyi s evidence being rejected and that of Potgieter being accepted, the second defendant would be liable jointly and severally with first defendant in respect of the arrest, detention and assault of plaintiff. This concession was very fairly and correctly made. It is therefore not necessary to deal any further with this issue. I would merely add that it is clear that the police made common cause with the traffic officers in their unlawful actions and that Peyi s denials in this regard were false. In particular, second defendant, in its plea, had specifically denied that any policeman had stood on plaintiff s legs and back whilst pushing his head to the ground. It is common cause that the plea was drafted before the photographs (Exhibit A), which put paid to these