THE
HIGH COURT OF SWAZILAND
MAVI
MASINA Plaintiff
And
THE
COMMISSIONER OF POLICE
1st
Defendant
THE
ATTORNEY GENERAL
2nd
Defendant
Civil
Case No. 2085/2001
Coram
S.B. MAPHALALA – J
For
the Plaintiff MR. L. MAMBA
For
the Defendant MR. E. THWALA
JUDGMENT
(06/02/2004) The relief sought
The
Plaintiff is suing the Government for damages arising from unlawful
assault, arrest and detention in police custody. He alleges that on
the 15th February 2001, he was arrested by members of the Royal
Swaziland Police stationed in Mbabane on a charge of robbery. The
policemen, whose further particulars are unknown to him, were at all
times material hereto, acting within the course and scope of their
employment with the Swaziland Government.
2
Thereafter,
the police officers wrongfully and unlawfully assaulted him by
repeatedly kicking him all over his body and by covering his face
with a rubber tube.
He
avers that he was wrongfully and unlawfully arrested and detained in
police custody, as the police had no reasonable grounds upon which to
believe that he had committed any offence. He asserts that as a
result, he suffered damages in the amount of E150, 000-00 in respect
of loss of freedom and discomfort, contumelia, assault and pain and
suffering.
The
Defence
These
claims are denied by the Government. In particular, Defendants deny
that the police had no reasonable grounds upon which to believe that
the Plaintiff had committed an offence when arresting and detaining
him. Defendants avers that the Plaintiff was arrested on reasonable
suspicion of having robbed one Nonhlanhla Maphalala, an employee at
Swaziland Jewellers, Mbabane, of some jewellery following a complaint
by the said Nonhlanhla and the police having satisfied themselves
that there was sufficient evidence to prefer a charge against him.
Further,
the said Nonhlanhla had actually told the police that she knew and
had in fact seen that the person who had robbed her was the Plaintiff
and her version was confirmed by one Precious Maphalala, her sister.
Furthermore,
Defendants avers that the Plaintiff was released from custody after
the complainant had changed her mind regarding the identity of the
Plaintiff after the plaintiff's father has asked that an
identification parade be conducted. Defendants avers that complainant
was schooled to change her mind regarding the identity of the
Plaintiff. Their conduct was not in any way wrongful or unlawful.
Their conduct if anything amounted to an effort to facilitate peace
and combat the commission of crime. Defendants deny that or any
person or persons acting on their behalf, acted wrongful or
unlawfully and that the Plaintiff suffered any loss and damage as
alleged or at all.
3
The
evidence for and against.
The
Plaintiff gave evidence being led by bis attorney Mr. Mamba. He then
called one witness Nonhlanhla Maphalala.
The
Defendants on the other hand led the evidence of eight (8) witnesses
to rebutt the plaintiff's claims.
The
Plaintiff gave a lengthy account of what transpired from the time he
was arrested by the police at home right through his incarceration
and final release.
He
told the court that he was a Humanities student at the University of
Swaziland in his second year. On the 15th February 2001, at about
5.00am to 6.00am six to seven police officers came to his home at
Mbangweni, Sidvwashini. They told him that he was being arrested for
robbery which had occurred at Mbabane Jewelleries where goods worth
E57, 000-00 were stolen at gunpoint. He proceeded to the Mbabane
Police Station with the officers. He was then interrogated at the CID
department by a number of police officers where he was asked to
produce the firearm used in the commission of the offence. They also
ordered him to produce the jewellery which was allegedly stolen in
the heist. He told the officers that he knew nothing about this
matter as he was at the University when the offence was alleged to
have been committed.
He
was then handcuffed with his hands on his back. He was ordered to lie
down on his stomach. One officer sat on his feet. The officer who sat
on his hands placed a tube around his nose and mouth. He pulled the
tube and thus suffocating him in the process. One officer he could
not identify kicked him on his right side of his face. The officer
kicked him more than three times. He told the court that he did not
know the names of most of the officers there but the one who was
suffocating him with the tube whose name was "Robert" and
the other who sat on his feet was called "Kina". The
officer who had the tube would take it on and off at the same time
one officer was kicking him. At that time he started to bleed through
both the nose and mouth. All this time the officers were asking him
to produce the jewellery. He told them that he knew nothing about
this matter. However, the officer would proceed assaulting him.
4
After
some time one officer took off the tube around his face and also the
handcuffs from his back. They then handcuffed him in front. One
officer who was light in complexion called "Gweje" took out
a "fly wheel" which was similar to a fan belt. He used this
to beat him on his back. He screamed in pain but the officer would
beat him even harder. The other officers would hit him with their
open hands and the others kicked him all over the body. At that time
he was bleeding profusely.
They
then took him to another small office where he found an elderly
police officer. He was informed that this officer was investigating
his case. The officer wanted to know from him the whereabouts of the
jewellery whereupon he told him that he knew nothing of this matter.
The officer told him that he was playing games with them. He was then
taken to a cell. The Plaintiff told the court that the beatings and
torture took 30 to 50 minutes from the time of his arrival at the
police station.
He
was placed in a small cell with four other inmates. He could not
estimate the size of this cell but said it was small. There was a
black drum at the side used as a toilet. He was given filthy blankets
called "umgacambongolo". He said he did not use the
blankets because if he had used them he would have felt sick. He
slept on the floor on top of a small mat. He told the court that the
cell was filthy and smelling of urine.
The
officers came back at night on the same day he was arrested. They
came again around 9.00am to 9.30am. The whole day of the following
day he was in the cell. They gave him some food but he could not eat
the food, as he did not have appetite after the torture the previous
day. The whole day he was without any food. Robert came to him at
night and told him to divulge what happened. He again told him that
he knew nothing of this matter. The officer then proceeded to
handcuff him in front and took him out of the cell. He took him to
the CID office where he was the first day. He removed the handcuffs
from the front and handcuffed him at the back. There were other
officers who numbered about 5 or less. They ordered him to produce
the exhibits in this case. He again told them that he knew nothing
about his matter. The officers proceeded to assault him as they did
the first time he came to the police station. A tube was again used
in this instance. The officer by the name of Robert was the one who
took an active role in the torture. The officers then went out of the
office then an officer by the name of Pitso Shongwe came in. He knew
5
Shongwe.
Shongwe told him that if he would confide in him he would tell the
other officers to stop assaulting him. But he also told him that he
knew nothing about this matter. The officer left after sometime.
The
police officer came again the following day where he was tortured for
the third time in police custody. Again Robert took an active role in
his torture. Another officer by the name of Kina also took an active
part on this occasion. He was then taken back to the cells. He
remained in the cells for five days. He was taken to court on the
fifth day. On the third day he was able to talk to his father who had
in the meantime secured the services of attorney Mr. Mdladla.
The
Plaintiff then recounted at great length what happened on the fifth
day when he was taken to Sidvwashini Remand Centre.
The
Plaintiff was then subjected to a very lengthy and searching
cross-examination by Mr. Thwala for the Defendants. The
cross-examination took two full days and I shall revert to what was
revealed therein in the course of this judgment.
The
Plaintiff then called his only witness PW1 Nonhlanhla Maphalala. She
told the court that she was an employee of the Swaziland Jewellery at
the Mall where a robbery took place in the morning hours of the 12th
February 2001. She described at great length how two men came to the
shop that day and eventually the shop was robbed of jewellery at
gunpoint. Essentially her evidence was that the Plaintiff was not the
one with the other who robbed the shop that day but one Mandla
Masina. A certain man-about-town who used Cracker Masina's son to
gain recognition. Cracker Masina is plaintiff's father. Cracker
Masina appears to be a celebrity of sorts in the soccer circles in
the country.
Nonhlanhla
told the court that when she reported the matter to the police the
police recorded her statement in writing. The officer who took her
statement was one Sandile Chonco. She told the officer that one of
the perpetrators of the robbery was one Mandla Masina not Mavi
Masina, the Plaintiff. The officer insisted that it was Mavi Masina
who was with the other robber. The officer according to this witness
then cancelled the name "Mavi" and inserted the name of
"Mandla".
6
However,
when this witness was shown the statement it emerged that the
statement was never cancelled. The witness insisted that she told the
officer that one of the perpetrators was "Mandla" not
"Mavi".
On
the 26th February 2001, she was called by the police to identify one
of the assailants at the Mbabane Magistrates Court. She found many
people in that vicinity but she could not identify any of them as
responsible for the robbery on the 12th February 2001. One police
officer there pointed out at someone and asked if he was not the one.
He pointed at the Plaintiff who was in a group of other men there.
During
March 2001, the witness made a sworn statement with the attorney for
the Plaintiff Mr. Mamba. An affidavit was prepared and solemnised
before a Commissioner of Oaths. In the statement she deposed that she
did not say that one of the perpetrators of the robbery was "Mavi"
but "Mandla". Finally she testified that it is not true
that she was schooled in this matter.
The
affidavit deposed to by PW1 was entered as exhibit "A".
This
witness was also subjected to a very long and searching
cross-examination by Mr. Thwala for the Defendants. She was quizzed
on the apparent contradictions in what she told the police
immediately after the robbery and what she has deposed in her
affidavit which was drafted by the plaintiff's attorney Mr. Mamba.
She insisted that she told the police officer Chonco that it was
"Mandla Masina" not "Mavi Masina" and the police
officer had effected the change in her statement. However, when
pressed further by Mr. Thwala for the Defendants she could not
explain why the amendment does not appear on the face of the
statement she made to Chonco. This indeed raised questions on her
credibility as a witness. I shall avert to this aspect of the matter
later on in the course of this judgment.
The
Plaintiff then closed his case. In rebuttal the Defendant lead the
evidence of eight witnesses. Most of these witnesses were police
officers who are connected with this matter some were present when
the Plaintiff was arrested and others attended the scene of the
robbery on the 12th February 2001, at the Mall. These were DW1 1807
7
Sergeant
Elijah Nhlabatsi, DW3 3447 Robert Dlamini, PW4 3662 Constable Sifiso
Dlamini, PW5 Superintendent John J. Lukhele, DW7 3615 Constable
Sibusiso Mabuza and DW8 2905 Sandile Chonco.
DW2
was Precious Maphalala who is the sister to PW2 Nonhlanhla Maphalala
who gave evidence on behalf of the Plaintiff. She was employed by the
Swaziland Jewellery at the material time. She was also on duty on the
12th February 2001, when the robbery took place. She related how a
certain Mandla Masina came to the shop with another man wanting to
buy some jewellery at the shop. These two persons came twice at the
shop. The robbery occurred whilst she had gone on her lunch break.
She did not witness the incident herself. However, the statement
which she recorded to the police after the incident the name of "Mavi
Masina" is reflected not "Mandla Masina".
The
evidence of the other witnesses for the Defendants pertains to the
arrest of the Plaintiff and what transpired when the Plaintiff was in
police custody. The police officers that gave evidence in this case
deny in the strongest terms that they ill-treated the Plaintiff in
the manner he has described to the court.
PW6
1821 Gabisile Manyatsi is a Correctional Services Officer stationed
at Sidvwashini Remand Centre. This witness described in detail the
procedure used by them at the Remand Centre when they receive new
inmates. The officer testified that the Plaintiff when he was
received at the Remand Centre did not have any injuries. If he had
injuries he would have not been accepted by the Remand Centre.
DW7
3615 Constable Sibusiso Mabuza and DW8 3905 Sandile Chonco are the
officers who attended to the scene-of-crime immediately after the
robbery. The officers told the court that at the scene Nonhlanhla
Maphalala told them that the person who was involved in the robbery
was one "Mavi Masina" who is a son to Cracker Masina.
Officer Chonco recorded a statement from Nonhlanhla Maphalala. He
deposed that Nonhlanhla told him that the person who committed the
robbery was one "Mavi Masina". He denied under
cross-examination that he is the one who suggested to her that the
person who committed the robbery was "Mavi" not
8
"Mandla".
In any event, he testified that the statement does not have such an
alteration.
The
Arguments
It
was argued on behalf of the Plaintiff that in casu that it is common
cause that the Plaintiff was in the custody of the police for 12
days, therefore the onus is on the person who effected the arrest to
show that the arrest was not only reasonable but also lawful. Mr.
Mamba urged the court to rely on the evidence of Nonhlanhla Maphalala
and reject the evidence of the Defendants as being contradictory.
Strangely, it was submitted that Precious Maphalala who is an
independent witness contradicts the evidence of the police that they
told the police that the person who committed the robbery was
"Mandla" not "Mavi". Her evidence supports that
of Nonhlanhla Maphalala.
Mr.
Mamba argued at great length on the quatum of damages and that in the
present case the Plaintiff has proved his damages as outlined in the
particulars of claim.
Mr.
Thwala argued au contraire. In this regard he addressed four issues,
namely; i) whether or not the Plaintiff was lawfully arrested for the
robbery; ii) whether Plaintiff was lawfully detained by the police;
iii) whether or not the Plaintiff was assaulted by the police during
his detention; and iv) whether any legal steps were contravened by
the police.
The
Court's analysis and conclusions thereon
I
shall address this case on the same format used by Mr. Thwala for the
Defendants viz 1) whether or not the Plaintiff was lawfully arrested
for robbery; 2) whether Plaintiff was lawfully detained by the
police; 3) whether or not the Plaintiff was assaulted by the police
during his detention; and 4) whether any legal steps were contravened
by the police.
I
proceed to address these questions ad seriatum, thus:
Whether
or not the Plaintiff was lawfully arrested for robbery.
9
The
police purported to arrest the Plaintiff in terms of Section 22 (b)
of the Criminal Procedure and Evidence Act (as amended). Section 22
of the Act reads in extenso as follows:
"Arrest
by peace officer for offences committed in his presence and on the
grounds of suspicion every peace officer and every other officer
empowered by law to execute criminal warrants is hereby authorised to
arrest without warrant every person;
who
commits any offence in his presence;
whom
he had reasonable grounds to suspect of having committed any of the
offences mentioned in Part II of the First Schedule;
whom
he finds attempting to commit an offence, or clearly manifesting an
intention to do so. (my emphasis)
The
question of whether the suspicion of the person affecting the arrest
is reasonable must be approached objectively. Accordingly the
circumstances giving rise to the suspicion must be such as would
ordinary move a reasonable man to form the suspicion that the
arrestee has committed a First Schedule offence (see R vs Van Heerden
1958 (3) S.A. 150 (T) at 153). In order to ascertain whether a
suspicion that a schedule offence has been committed is "reasonable"
there must obviously be an investigation into the essentials relevant
to each particular offence (see Ramakulukusha vs Commander Venda
National Force 1989 (2) S.A. 813 (v) 836 G -937B)
It
is trite law that the onus is on the person making the arrest to show
that his suspicious had a reasonable basis (see Rossean vs Boshoff
1945 CPD 135 and the case of R vs Folkus 1954 (3) S.A. 442 (SWD)).
The
case in casu therefore ought to be decided on the legal principles
outlined above. In my assessment of the evidence in toto I come to
the conclusion that the police in the present case had reasonable
suspicions that the Plaintiff together with an unknown individual had
committed this offence of robbery and thus satisfying the rigours of
Section 22 (b) of the Criminal Procedure and Evidence Act. The facts
reveal that the police were notified by telephone that a robbery had
been committed at the Swaziland
10
Jewellers
on the day in question. The police proceeded to the scene (PW6 and
PW8) where on their arrival they were informed that one of the
suspects was "Mavi Masina" who is the Plaintiff in the
present case. It happened that the Plaintiff was also known to the
two officers who attended to the robbery as he had had a brush with
them in an incident involving jewellery. The officers received this
information from the complainant Nonhlanhla Maphalala who was present
when the robbery took place,
Nonhlanhla
Maphalala in her statement recorded by PW8 (3905) at 13h40hrs on the
day of the robbery stated inter alia:
"I
recall very well on this day I was on duty when two middle aged man
(sic) came into the shop of which one of them I know as a son of
Cracker Masina (Mavi)...".
However,
Nonhlanhla Maphalala somersaulted and made an affidavit prepared by
plaintiff's attorney Mr. L. Mamba and said that she informed the two
police officers who came to the shop that the person was "Mandla
Masina".
At
paragraph 6 of the affidavit she states the following:
"After
the statement had been taken and read to me I was asked to sign it. I
refused to do so as the name the police officer had written down was
Mavi and not Mandla. I informed him that I would not sign it and he
then amended the name in the statement to read Mandla. Thereafter I
signed it".
The
above statement is not true in that the statement which Nonhlanhla
made (exhibit "D") was never amended. When Nonhlanhla
Maphalala was pressed on this in cross-examination she failed to come
with a clear answer.
In
the circumstances, I find that what is reflected in exhibit "D"
portrays the true facts of what occurred that day.
Again
there is the evidence of Precious Maphalala which also boggles the
mind. She also mentioned that it was "Mavi Masina" who came
to the shop earlier on. This is found in exhibit "C". Also
this witness told the court in-chief that her statement had
11
the
name "Mandla". Surprisingly, the statement was not amended
as she said it was amended by the police.
In
my view, both witnesses for whatever reasons did not tell the court
the truth but it is clear to me that they are the ones who
represented to (PW7 and PW8) that one of the perpetrators was Mavi
Masina. Armed with this information the police proceeded to arrest
the Plaintiff. The arrest in my considered opinion fell squarely
within the purview of section 22 (b) of the Penal Code and in the
circumstances the police officers' actions cannot be faulted.
Whether
the Plaintiff was lawfully detained by the police.
Having
found the arrest of the Respondent to have been lawful, his ensuing
detention was, prima facie, also lawful and the onus is upon the
Plaintiff to show that there was a stage when it became unlawful.
The
period for which a person arrested without warrant may lawfully be
kept in custody is regulated by sub-section (1) and (2) of section 30
of the Criminal Procedure and Evidence Act (as amended). Those
sub-sections reads as follows:
"30
(1) no person arrested without warrant shall be detained n custody
for a longer period than in all the circumstances of the case is
reasonable. 2. Unless such person is released by reason that no
charge is to be
brought
against him, he shall, as soon as possible, and without undue delay,
be brought before a Magistrates Court having jurisdiction upon a
charge of an offence".
It
is apparent that no fixed time has been laid down for lawfully
keeping an arrested person in custody. Beck JA delivering the
judgment of the Court of Appeal in Commissioner of Police and another
vs Mathokoza Vilakati Appeal Case No. 23/2003 (unreported) stated the
following:
"Detention
following a lawful arrest only becomes unlawful when it is no longer
reasonable in all the circumstances of the particular case".
12
In
the instant case it is common cause that the Plaintiff was in the
custody of the police for a period of five (5) days when he was
transferred to the Remand Centre where he spent a further seven (7)
days. In total he was in custody for twelve (12) days.
It
is also common cause that the Plaintiff was charged with the offence
of Armed Robbery and that he appeared before the Mbabane Magistrate
Court for a formal remand where he was remanded in the custody of the
Sidvwashini Remand Centre to the 26th February 2001.
In
assessing the evidence before me I am unable to say that the
detention was unlawful. The Plaintiff was charged with a very serious
offence that of Armed Robbery of a jewellery shop where jewellery
valued at E55,000-00 were stolen at gunpoint. There were two
perpetrators who fled the scene in a motor vehicle. Clearly from the
facts the investigations of such a crime were of a complicated
nature.
In
my view following the ratio in the Court of Appeal case I have
already cited the Commissioner of Police and another vs Mathokoza
Vilakati (supra), I find on the facts and in all circumstances of the
case that the detention was not unreasonable.
Whether
or not the Plaintiff was assaulted by the police during his
detention.
In
the present case the only evidence of assault is that of the
Plaintiff himself. Here the court has no independent evidence that
has been led that corroborate the evidence of the Plaintiff. His
evidence in my view raises more questions than answers. Firstly, the
Plaintiff outlined his assaults by the police on the days he was in
their custody. During this time the Plaintiff was sharing his cell
with two other inmates who on all probability would have observed the
Plaintiff injuries after he had been assaulted by the police. The
Plaintiff has not called any of his cellmates to corroborate his
version.
Secondly,
the Plaintiff could have called the Magistrate to whom he first
appeared, who must have seen his injuries. The injuries described by
the Plaintiff when he gave his evidence in-chief were of a grievous
nature in that he said he was bleeding all
13
over.
In this regard I agree with the submissions advanced by Mr. Thwala
for the Defendant that the Plaintiff ought to have complained to the
Magistrate about the assaults he was subjected to in police custody.
The Magistrate was the first independent person he could have
complained to when he first appeared for a formal remand.
Thirdly,
the Plaintiff could have called the prison officials to say that in
spite of his visible injuries as alleged he was admitted to prison
against the standing policy that prisoners with injuries are not
admitted into prison.
Fourthly,
police officer Lukhele told the court that he visited the cells at
the police station in the middle of the night. He testified that the
purpose of these nocturnal visits was to establish if any inmates had
any complaints. The officer told the court that he saw the Plaintiff
in one of the cells but the Plaintiff said nothing. The argument
advanced by the plaintiff's attorney to explain away this omission on
the part of the Plaintiff is that he could not have reported to a
police officer as Lukhele was "another brick on the wall".
I must say that I am not satisfied with this explanation on the
simple reason that Lukhele was never part of the officers who
interrogated the Plaintiff whilst he was in police custody.
For
the reasons I have outlined above I find that in all probabilities
the Plaintiff has failed to prove his case for the relief sought.
In
the result, judgment is granted in favour of the Defendants and that
the plaintiff's claim is accordingly dismissed with costs.
S.B.
MAPHALALA
JUDGE
