THE HIGH COURT OF SWAZILAND
TRIAL NO. 360/1997
the matter between:
FANYANA LUKHELE Plaintiff
COMMISSIONER OF POLICE 1st Defendant
ATTORNEY GENERAL 2nd Defendant
Plaintiff Mr. M. Mnisi
Defendant Mr. P. Msibi
21 July 2004
plaintiff sues Government for E40 000, interest and costs arising
from the alleged loss of his property and money that he would have
suffered when his household effects and property was moved by his
employer's servants, in his absence, from his former residence at
Pigg's Peak to his new residence at Mliba Police Station. Following
issuance of his summons in February 1997 and the subsequent
processes, the matter was partially heard by the former Chief
Justice, the Honourable Mr. Justice Sapire, and postponed for
continuation on a date to be arranged. Before that was done the
Justice resigned from the Bench, without giving judgment, and the
parties agreed to have the matter heard de novo before this court and
it was so heard on three different dates this year.
essence of the plaintiff's case is that he was a police officer
stationed at Pigg's Peak when he was notified that he was to be
transferred to Mliba Police Station on the 25th August 1996. While he
was away from home, on the 21st August that year, i.e. some four days
before the notified transfer, his effects were removed from his home
by another police officer, Constable Samuel Thwala, who was acting
under instructions from the Hhohho Regional Headquarters, and who
deposited his belongings at his new quarters, the police station at
Mliba. His case is that during this process, some E32 400 in cash
disappeared, being monies he used to conduct a money lending business
alongside his police duties and further, that some of his effects
were damaged or lost, his total loss and damages amounting to E40
000.00. He avers that his losses and damages was at the instance of
members of the Royal Swaziland Police while acting in the course and
within the scope of their employment. His particulars of claim does
not allege that the defendants officers were negligent or that they
wilfully stole his property, causing the loss. The state's attorney
did not argue this issue as a legal point or at all and I can only
assume that no prejudice is perceived by the defendant as to the
alleged loss resulting "at the instance of ... the...Police..."
to mean in effect that the loss and damage was occasioned by either
the negligence of the Police, or even wilful theft of the missing
money and other items. The latter was not pleaded but brought to the
fore during evidence, the same regarding damage to certain items. The
lack of specific allegations
the loss and damage of the plaintiff was not excepted to and the
specific absence of essential averments in the pleadings of the
plaintiff was not pleaded to, save for the general and unspecific
plea by the defendant, in response to the particulars of claim in the
combined summons, that the contents of the relevant paragraphs "are
denied and that plaintiff is put to the strict proof thereof."
The attempt at a pre-trial conference did not prove to be fruitful
either, it being a mere confirmation of the pleadings, wherein the
defendant denied all but the formal citations of the parties,
requiring proof of all allegations. For instance, it was not even
agreed to on which date the transfer was scheduled, when it was
actually effected, or which officer was in charge of the operation as
driver of the truck, whether the plaintiff had a refrigerator at the
time of his transfer, whether it was functional before and after the
transfer, or what the costs of repairs were, let alone whether such
repairs were necessitated by negligent removal. All of these aspects
are merely denied and disputed.
issue to decide at the end of the matter is whether the defendant is
to be held liable for any damages suffered and proved by the
plaintiff, or not. As said, the pleadings herein are not of much
assistance, nor is the pre-trial conference. The onus remains
squarely on the plaintiff to prove his claim on a balance of
probabilities, to the fullest extent. No concessions were made and no
facts were agreed upon.
plaintiff's own evidence is that he is a police officer who was
stationed at Pigg's Peak. He was transferred to Mliba Police Station,
as was formally communicated to him per exhibit "A", a
Royal Swaziland Police Message Form. Therein, his date of
is indicated as the 25th August 1996, The form bears the Mliba Police
date stamp of the 19th August, and he says that he saw the message on
the 15th August, a few days earlier. The form itself reads that its
date of origin is the 19th. However unlikely it is that the
difference in dates are reconcilable, it was not established whether
it is the same message form as exhibit "A" that he saw, or
a different one.
that as it may, his evidence is that on the 20th August he took the
day off to "go home" and report the transfer, returning on
the 21st, a few days prior to the notified date of transfer. This is
his surprise and dismay, he noticed upon his return that the police
house which he occupied at Pigg's Peak had new curtains. He
investigated closer, to find that his own effects had been removed
and that someone else's property was now in the house, with some of
his children's clothing placed in the toilet.
received a report that his belongings had been taken to Mliba upon
which he drove there. At his new house, he found his belongings
already inside the house. He asked his .housemaid about a suitcase
which would have contained money and she told him that the driver of
the truck who moved his effects carried it at some stage. He then
opened the suitcase and says that whereas it used to contain
envelopes with money in them, none such envelopes were there anymore,
a total sum of E38 000 missing.
evidence is that over and above this pecuniary loss, some police
uniforms were also lost in the process, without specifying what
pieces of uniform, or its value. Also said to be lost are a .22
rifle, police ID Card and a police raincoat. Again without any
details or values, he says that a video cassette recorder was
damaged, a dressing table mirror broken, a hi-fi speaker damaged and
that his refrigerator ceased working.
Lukhele states that a year later, his missing .22 rifle and missing
money was found through "the assistance of (his) ancestors".
He did not say how much money was recovered. He has it that the rifle
was recovered from one Enock Nkambule, who made a report to him,
which remains unconfirmed hearsay, as to whom he obtained it from.
plaintiff endeavoured to place evidence before court pertaining to
the money he claims to have lost in the process of his transfer, with
his personal property being moved in his absence.
says that on eight different dates in August 1996, he received
amounts between El 440 and E6 000, in total E21 000 cash. These were
repayments from his money lending business and he handed up a number
of Loan Agreement Forms, being agreements between four individuals
and Umzamo or Umusa Savings and Credit Cooperative Society (Pty)
Ltd. (exhibits B - E).
said that he also had cash income from his "For Hire"
transport business, which he intended to buy a vehicle with, in
Johannesburg "that Friday". A further amount of E10 000 was
to be used in his money lending business.
total amount of money he kept in a suitcase in his house was stated
to be E38 000, according to the plaintiff's evidence. His particulars
of claim, in contrast, put the amount of money "used in his
money tending (sic) business" at E32 400.
the course of the initial trial before the former Chief Justice, a
transcript of which was filed by the "defendants attorneys"
(in fact the plaintiff's attorneys), the plaintiff put across (at
page 23 - 26) a third version of the amount of money lost. There, he
said he had sold two vehicles, keeping E7 000 from each sale, a
further E9 400 being repayments from his debtors and E10 000 with
which he intended to buy another vehicle - a total sum of E33 400.
E38 000, E32 400 and E33 400 are three different amounts, although
the latter two are fairly similar, which begs the question as to how
much money he indeed wants to be compensated with.
question becomes more relevant when the documents on which the
plaintiff claims the loan transactions were recorded on, are examined
his evidence, the plaintiff testified that among the lost monies was
a repayment of E1800 which he received on the 13thAugust 1996. The
same amount and date is recorded in red ink on the face of exhibit
"E", the Loan Agreement Form with one Isaac
According to the document, Ginindza received the sum of El 500 on the
24th July 1996. The endorsement in red on the face of the form reads:
'Paid El 800 on 13/8/96'. In other words, it is held out that
Ginindza borrowed El 500 on the 24th July and that he repaid the loan
on the 13th August. If 20% interest per month is taken into account,
(the legality of which is not the present issue) the sum balances
out. El 500 capital and E300 interest (for two full months) when
added together leaves a sum of El 800, which is held forth as a
repayment, money received by the plaintiff, and claimed as a part of
his alleged losses. However, on the back of the same form a different
picture emerges. It reads that El 950 plus E225, being 10% interest
from 24/7/96 to 6/8/96 was brought forward, a total of E2 175 as
balance due with effect from 11/8/96. Underneath this total it reads
that "E225 paid late on 15/8/96" left an amount of E1950
is irreconsilable with the endorsement that El 800 was paid on
13/8/96, reflected on the front of the document, which amount and
date was used by the plaintiff to substantiate his loss of that
amount. If the entries might have been misinterpreted, this is
allayed by a further entry, on the back of the same form, to the
effect that no payment was made on the 4th September, 1996, and that
with a payment on 12/9/96 of E480, a balance of E2 055 remains, after
addition of further interest.
point is that there is an adverse credibility issue at hand, as to
the amount alleged to have been lost by the plaintiff and that the
documents he relies upon in only a few of the instances, show him to
other sums of monies, like the E14 000 in respect of two vehicles
sold and partially paid, was only testified about in the initial
trial and not heard by this court. The further anomaly is that during
the present trial, he testified that E21 000 of his claim was made up
of sums of money received from his debtors, whereas at the first
trial, that amount was said to be E9 400 (page 26). He then also had
it that it took him about 4 to 5 months to accumulate that sum, while
presently he stated that E17 240 was received between the 7th and
14th August 1996, with a further E3 700 on the 10th July 1996 - E21
000 in all. Both the amounts and the period differ significantly.
serves to strongly doubt the veracity of his evidence regarding the
claimed amount. To compound this, there is the further question as to
exactly how the loss occurred.
accept that his effects were removed from his house in his absence.
The inference that the plaintiff wants to have drawn by the court is
that it is the police officer who took charge of the removal who is
to be blamed for the loss of his money. On a balance of probability I
do not find so, due to the following evidence.
called one Angel Dlamini, a young lady, 15 or 16 years of age at the
time of the transfer, who testified about the events in his house on
the 21st August 1996. She said that she lived there at the time,
looking after his children for the past nine months, when Lukhele,
the truck driver arrived to load the effects of the plaintiff. Her
evidence is that a small black briefcase, in which plaintiff's money
was kept, was placed behind the driver's seat, as well as a gun, by
herself. On their arrival at Mliba, she removed the case
behind the seat where it still was, but forgot about the gun. She
said that there were also other people in the Mliba house, who
remained there while she went to do shopping, 'thinking' that she had
locked the room in which the money case was kept, later to say that
indeed the room was locked.
the arrival of the plaintiff at Mliba after dark that evening, he
called her to the room to ask her about the missing money and the
missing firearm, to which she could offer no explanation.
evidence is not to the effect that she verified the money still to be
in the case when it was loaded into the police truck at Pigg's Peak,
also not that she knew about the loss before being confronted by the
plaintiff in the evening. She did not keep the case under her eye
during the course of the day, nor did she see anyone tamper with it.
The police truck driver was not the only person who could have had
access to it. In the Pigg's Peak house, others were also there to
help with the loading. In the Mliba house, again there were other
people, strangers to her. According to her own version, she was the
only person to have handled the suitcase, with Thwala, the removals
man, also having "access" to it. The case itself was not
did not adduce any evidence about the items claimed to have been
damaged in transit. According to his particulars of claim, this would
have been to the extent of E7 600 for damaged and missing items.She
mentioned that plaintiff's 'gun' (a
rifle) was loaded into the police truck, but did no more than that,
save to say that when plaintiff asked her about the gun, she was
Dlamini did not make a positive impression as a witness. She was
unclear in many aspects and I frequently noted that she seemed to be
at a loss for words when asked questions. Certainly she did not keep
an eye over the 'suitcase' or briefcase in which she said money was
kept. Her evidence does not lead to a conclusion of any reasonable
firmness that Thwala, the police driver, took money from the case. It
could have been any of a number of other people, if indeed there was
a large amount of cash in it. At least one other lady helped to pack
the belongings at Pigg's Peak. Men that were not known to her were at
Mliba when the plaintiff's property was offloaded. She did not verify
that there was any money in the case when she placed it inside the
truck, stating that it was during the previous night that she placed
around E300 in the case.
all, she did not advance the plaintiff's case persuasively nor did
she corroborate him much further than confirming the event of the
removal of his effects during his absence.
defendants called Thembi Hlatshwayo, who also was present when the
police truck loaded the plaintiff's items on the 21st August 1996,
assisting Angel Dlamini with packing and loading.
says that after they removed plaintiff's property from the house, one
Matsenjwa arrived. He is known to her as plaintiff's 'for hire'
driver, and he was told by Angel Dlamini that the plaintiff
instructed her to tell him to take the sofa and other items to
plaintiff's homestead at Mpuluzi. This contrasts with Angel Dlamini's
version that the driver himself offered to take sofas to Mpuluzi,
(not that she conveyed plaintiff's instructions to him). She
(Dlamini) also gave two different identities of the driver - her
evidence in chief has him as a Motsa, while he became a Matsenjwa
during her cross-examination.
also contradicts Dlamini regarding the presence of money, stating
that on her enquiry, she was told that there was none and that
plaintiff was 'broke', further that there was no 'trunk box' or
suit/brief case in which money would have been kept but that she saw
empty cotton bank money bags.
defendants also called the police truck driver, Thwala, to testify.
He says that he was sent to Pigg's Peak to convey the plaintiff's
belongings to Mliba on the 215t August 1996. On his arrival, the
plaintiff was not at his home. He reported this at the Pigg's Peak
Police station and called his supervisor who ordered him to go ahead
as there were other people at plaintiff's house. When loading the
effects, and knowing plaintiff to be a money lender, he checked with
Angel Dlamini that there was no money lying around the house. He also
says that there is no room behind the seat of his truck for a 'trunk
box'. He further denied that Dlamini left him alone at the Mliba
house to go shopping, further that he knew nothing about a firearm
that went missing during the process of
house. He differs from Angel Dlamini as to the presence of other
policemen in the Mliba house upon their arrival there, stating it to
have been empty.
certainly could not have been expected to come to court and confess
that he stole plaintiff's money and rifle. Nor did he do so, or
anywhere near remotely so. He did not come across as the best witness
to have been heard, nor as one who must be disbelieved. If however a
question mark was to be placed behind his evidence, it could have
been if exhibit "F"was proven to be true.
document was tendered and admitted on the basis that its purpose was
only to prove the theft of a firearm, and no more. Its authenticity
and veracity was not proven. The author of the statement is deceased.
Accordingly, I can read no more into it than that a certain .22 rifle
was lost and recovered. Insofar as it reflects on Thwala, no
conclusions can be adversely drawn against him, nor can the document
be used to discredit his evidence of a denial insofar as the
plaintiff's rifle is concerned. In any event, Thwala disputes the
contents of the statement made by his late uncle and held forth that
there was a longstanding dispute between the two of them, owing to a
land dispute. Nor can the inadmissible contents of the statement be
used to draw an adverse inference against Thwala insofar as the money
is concerned, or anything else that would favour the plaintiff. It
does not advance his case any further.
said at the onset of this judgment, the plaintiff remains with a full
onus to prove his case. From the totality of evidence heard during
the trial, I hold a firm view
he did not succeed in discharging this onus. While it might be true
that he lost money during the transfer of his effects in his absence
and that some of his property might have been damaged during the
event, there is no justification to hold the defendants, or their
agents, responsible to compensate him. The plaintiff's own evidence
regarding the money itself is self-controverting. His witness, Angel
Dlamini, could not and did not rectify this serious discrepancy.
damage to his goods cannot be attributed to the defendants either.
There is no evidence to substantiate any quantum in that regard, let
alone a factual finding on any measure of probability that it was
caused by the (non-alleged) negligence or fault of Thwala, or his
principals by implication.
loss of the firearm is an accepted fact, but likewise it cannot be
attributed to Thwala or the defendants.
an adverse finding to the contrary had to be made, it would rather
have been that the plaintiff was negligent in the keeping of his
money and safeguarding his .22 rifle, but I need not go that far in
this matter. I am also constrained not to make any comment about the
propriety of a police officer who operates as a "loan shark"
alongside his official police duties, charging some 20 and 30 percent
interest per month on his loans, as it is not necessary to do so in
order to decide the merits of this case.
the event, the plaintiff's claim is ordered to be dismissed, with