IN
THE HIGH COURT OF SWAZILAND
CASE
NO. 2553/01
HELD
IN MBABANE
In
the matter between:
MANDLA
MNGOMETULU PLAINTIFF
AND
THE
COMMISSIONER OF POLICE FIRST DEFENDANT
THE
ATTORNEY GENERAL SECOND DEFENDANT
CORAM
SHABANGU AJ
FOR
PLAINTIFF MR MAPHALALA
FOR
DEFENDANT MS MKHWANAZI
JUDGEMENT
15th June, 2004
This
action was commenced by combined summons dated 7th September, 2001
whereby the plaintiff sued for damages amounting to the sum of
E500.000 (Five Hundred Thousand Emalangeni) and costs of suit.
Whereas in the prayer which is at the end of the particulars of claim
the amount is stated simple as E500.000 (five hundred thousand
Emalangeni) paragraph eight of the aforesaid particulars of claim
breaks down the amount claimed in the following manner. In respect
2
Pain
and suffering the plaintiff claims E150,000.
Loss
of liberty and freedom the plaintiff claims E100,000.
Discomfort
the plaintiff claims 85,000.
Costs
of an attorney 15,000.
Medical
expenses .47,500.
Contumelia
100,000.
Damage
of property 2,500.
There
was no attempt during the trial to prove the costs of an attorney and
the damage to property. On behalf of the plaintiff Mr Maphalala
indicated at the commencement of the trial that no attempt would be
made during the trial to prove the E47,500 (Forty Seven Thousand Five
Hundred Emalangeni) referred to in paragraph eight of the particulars
of claim and that that aspect of the plaintiff's claim was not going
to be pursued and was being abandoned. The result is that the amount
claimed by the plaintiff was reduced when the trial commenced by the
amounts of E15.000, E47.500 and E2,500 to E435,000 (Four Hundred and
Thirty Five Thousand Emalangeni).
The
basis of the plaintiff's claim are two causes of action, namely (a)
Assault and (b) wrongful arrest and detention which arise from an
incident which allegedly occurred on 13* August, 2000. It is alleged
in paragraph four of the plaintiff's particulars of claim that at
Nyatsini area, the plaintiff was wrongfully and unlawfully shot on
his left foot for no apparent reason by a member of the Royal
Swaziland Police based at Hlathikhulu. In the next paragraph which is
paragraph five of the particulars of claim the plaintiff alleges that
he was ""assaulted", arrested and detained by members
of the Police force based at Hlathikhulu Police Station and spent
about (2) months in police custody." It is alleged that as a
result of being shot at, and assaulted by the Police, the Plaintiff
sustained severe injuries and endured pain and suffering. At
paragraph 7.1 the plaintiff makes the allegation that "the
shooting, assault, arrest, detention and damage to the plaintiff's
property
was at the instance of the Royal Swaziland Police who were acting
during the course of and within the scope of their employment as
members of the Royal Swaziland Police for whom the first Defendant is
responsible." The plea admits that the plaintiff
3
was
shot in the foot by a member of the Royal Swaziland Police. However
the defendants deny that the shooting was "wrongful and
unlawful" and plead at paragraph 2.2 that the "plaintiff
was shot as a result of his resisting arrest." The defendants'
plea further goes on to state the following at paragraphs 2.3 to 2.5,
"2.3.
The defendants' aver that the Police received a complaint from one
Thelma Masuku, the Plaintiff's mother in law that the Plaintiff was
assaulting his wife one Siphelele Masuku. It was further alleged that
Plaintiff was causing some commotion and disturbing the peace of
Thelma Masuku's home.
2.4.
When the Police came to arrest Plaintiff he locked himself in one of
the huts at his uncle's homestead which is next to Thelma Masuku's
home.
2.5.
Despite pleas from the Police to come out of the hut, Plaintiff
resisted until the Police fired a warning shot which accidentally
injured plaintiff on the foot. "
On
the pleadings therefore both the shooting and arrest of the plaintiff
is admitted by the defendants. The defendants deny the detention. It
appears on the pleadings and this appears to be the basis upon which
the matter was dealt with during the trial that the defendants sought
to justify their action on the basis that the shooting was in order
to effect an arrest which the plaintiff was wrongfully resisting.
There also appears to be a suggestion that the shot accidentally
injured the plaintiff on his foot.
The
first question which arises for determination therefore is whether
there was legal justification for the attempt by the Police to have
the plaintiff arrested on the date in question. If the Police were
justified in seeking to arrest the plaintiff then depending on the
appropriateness of the force (a gunshot) that was directed at the
plaintiff it is possible that the shooting may be justified by the
fact that it was by the Police in the course of and for the purpose
of effecting a lawful arrest which the plaintiff was resisting. On
the other hand if the arrest intended was wrongful any force
including the firing of a shot, that was used by the Police cannot
excuse the Police in shooting the Plaintiff. On the pleadings, as
already observed, but also on the evidence the defendants' say that
they wished to arrest the plaintiff because a complaint had been made
at the Police Station to the effect that the Plaintiff had assaulted
his wife on some earlier date. What was clear on the evidence is that
the assault was not continuing at the time the Police arrived at the
homestead of the plaintiff's uncle to arrest him. The alleged assault
according to the
4
evidence
had taken place about a month from the date of the shooting incident,
which latter incident occurred on the 13th August, 2000. No evidence
was tendered that the arrest was justified by a warrant. Indeed even
the plea does not make an allegation that a warrant existed in
respect of the arrest which the Police intended to effect. As a
matter of principle an arrest or detention can either be wrongful or
lawful. If an arrest takes place without a warrant of arrest, the
defendant must allege and prove the lawfulness of the arrest, (see
BRAND V. MINISTER OF JUSTICE & ANOTHER 1959 (4) SA 712 A @ 714,
UNION GOVERNMENT V. BOLSTRIDGE 1929 AD 240, MINISTER OF LAW AND ORDER
V. HURLEY & ANOTHER 1986 (3) SA 568 (A) 587-89). See also FRANK
B. MAGAGULA V. COMMISSIONER OF POLICE & OTHERS unreported civil
case no. 455/90 delivered on 7th February, 1992 and the case of NOAH
NDODA KUNENE VS. THE COMMISSIONER OF POLICE & ANOTHER unreported
decision in case 2331/2000 delivered on 11th November, 2003. In the
Frank B. Magagula mattter Rooney J, observed at page two of the
judgement that;
"It
is well established law that any interference with the liberty of the
citizen is prima facie odious and it is for the person effecting the
arrest to establish the fact that in the particular circumstances
such interference with liberty was justified. NEWMAN V. PRINSLOO 1973
(1) SA 125. "
Put
differently once the arrest is admitted the onus to allege and prove
facts which would justify the arrest, is borne by the defendant. In
spite of the fact that the cause of action is the actio injuriarum, a
plaintiff need not allege and prove the presence of animus
injuriandi. Nor can the defendant escape liability by alleging and
proving its absence. An honest belief in the legality of the arrest
is no defence, (see L.T.C HARMS, AIMLER'S PRECEDENTS OF PLEADING 3rd
EDITION page 33. See also the cases cited there TSOSE V. MINISTER OF
JUSTICE & OTHERS 1951 (3) SA 10 (A) @ 18, RAMSAYV. MINISTER VAN
POLISIE & ANDERE 1981 (4) SA 802 A 818 SMIT V. MEYERTON
OUTFITTERS 1971 (1) SA 137 (T) ; Similarly in respect of the assault
which is a delict affecting a person's bodily intergrity the cause of
action is the actio injuriarum. (see MABASO V. FELIX 1981 (3) SA 865
(A); BENNET V. MINISTER OF POLICE & ANOTHER 1980 (3) SA 24 (C) @
35. A physical
5
Interference
with another person's bodily intergriry, is normally, wrongful. It is
for plaintiff to establish the wrongfulness of the physical
interference but as was observed in Mabaso's case supra at page 874
wrongfulness is (normally) a legal issue which does not carry an
onus. The allegation of an "assault" implies wrongfulness
and animus injuriandi. See Bennett's case supra page 34-5. It is for
the defendant(s) to allege and prove facts which disprove animus
injuriandi. It is sufficient for the plaintiff to plead and prove
facts which indicate, prima facie and objectively, a wrongful act.
See AIMLER'S PRECEDENTS OF PLEADING supra at page 34-5. Compare
JACKSON V. SA. NATIONAL INSTITUTE FOR CRIME PREVENTION 1976 (3) SA 1
(A), Earlier doubts as to where the onus of proof lay have now been
clarified. The onus of alleging and proving an excuse for or
justification of the assault is on the defendant, (see Mabaso's case
supra. Compare with MATLOU V. MAKHUBEDU 1978 (1) SA 956 (A). The
learned author of AIMLER'S PRECEDENTS OF PLEADING observes at page 35
that "in a defence of justification for an assault it is not
advisable for the defendant to admit the 'assault' on the plaintiff.
He should rather use a neutral word, such as 'stacking' which does
not imply wrongfulness or animus injuriandi. It was in light of the
aforestated principles relating to the onus and the undisputed facts
on the pleadings that I ruled at the beginning of the trial that the
defendant had a duty to begin and that they were therefore obliged to
give their evidence before the plaintiff opened his case. This
approach was also followed by Rooney J, in the unreported case of
FRANK B. MAGAGULA V. COMMISSIONER OF POLICE civil trial 455/1990 a
judgement delivered on 7th February, 1992. In that case at page two
of the Judgement Rooney J observed that "because the onus lay
upon the defendants to prove the lawfulness of their conduct they
were obliged to give their evidence before the plaintiff opened his
case." This approach is consistent with the principle that the
party who bears the onus of proof on the issues or any issue in
relation to the trial has a duty to begin and lead his or her
evidence in proof of that issue.
As
already observed if the arrest is without a warrant of arrest, the
defendant must allege and prove the lawfulness of the arrest. Arrests
and the basis upon which they can be justified in the absence of a
warrant are dealt with under part V of the Criminal procedure
6
and
Evidence Act 67/1938. In section 22 of that Act a peace officer
(which by defination includes a police officer is authorised to
arrest without warrant any person who commits an offence in his
presence. That statutory provision was not and could not be relied
upon by the defendants. The other basis mentioned in section 22 upon
which a police officer may arrest a person without a warrant is In
terms of section 22 (b) when the police officer "has reasonable
grounds to suspect such person of having committed any of the
offences mentioned in part II of the First Schedule;" Again this
subsection had no application to the facts of the present matter.
What is pleaded in the defendants' plea is that the offence in
connection with which the police sought to have the plaintiff
arrested was assault. In the course of the trial an attempt was made
to change the description and nature of the offence in respect of
which the police wanted to have the plaintiff arrested, to assault
with intent to do grievious bodily harm. In both instances assault or
assault with intent to do grievious bodily harm the defendants would
not have been excused because none of this offences is an offence
mentioned in part II of the First Schedule. In the result section 22
(b) of the Criminal procedure and Evidence Act could not be relied
upon to justify the arrest. Section 22 (c) is also not applicable and
therefore cannot assist the defendants because there was neither an
allegation in the plea nor evidence during the trial that the
plaintiff was found attempting to commit an offence or clearly
manifesting an intention so to do. No attempt to plead or rely in any
manner on any of the circumstances or conditions mentioned in section
23 of the Criminal Procedure and Evidence Act 67/1938 as a basis
which would justify an arrest without warrant was made. In the result
the arrest which the Police intended to effect on the plaintiff was
unlawful and or wrongful and unjustified. Similarly the arrest which
was effected as a result of the forced submission of the plaintiff,
namely the shooting of the plaintiff, was in my view unlawful. It
follows that if the arrest was unlawful then the force which was used
to effect such arrest was also unjustified and therefore unlawful. A
further basis for holding that the arrest was unlawful may be found
in the fact that there is no evidence, that when the Police arrived
at the homestead of the plaintiff's uncle with the expressed purpose
of effecting an arrest they ever informed the plaintiff of the cause
of the arrest. Indeed it does not appear that at any stage the Police
informed the plaintiff of the reason for his arrest. It is a
statutory requirement, namely section 30(4) of the Criminal Procedure
and Evidence Act, that a
7
person
who is being arrested must be informed of the cause of the arrest. In
the matter of FRANK B, MAGAGULA supra at page sixteen Rooney J made
the following observation in relation to section 30 (4) of the
Criminal Procedure and Evidence Act, 67/1938;
"The
importance of this requirement of the law must never be disregarded.
In England the House of Lords decided in CHRISTIE V. LEACHINSKY 1947
(1) ALLER 567 that the matter was one of substance and was on the
elementary principle that in that country a person is prima facie
entitled to his freedom and is only required to submit to restraint
on his freedom if he knows in substance the reason why it is claimed
that restraint should be imposed. An arrest without warrant, either
by a policeman or by a private person can be justified only if it is
an arrest on a charge which is made known to the person arrested
unless the circumstances are such that the person arrested must know
the substance of the alleged offence, e.g. where the alleged
wrongdoer is caught red handed. The Lords went on to declare that an
ommission to give the information to the person arrested made the
arrest unlawful and constituted false imprisonment. I would not
expect any lesser respect for the right to individual freedom to
apply in Swaziland. The Roman Dutch law as interpreted by the courts
in neighbouring countries follows the same general principle as the
Law of England."
Then
the learned judge proceeded to refer to the case law authority as
follows;
"In
R V. Kistesamy 1947 (4) SA 789 HENOCKSBERG J. confirmed at 792 that
when a constable effects an arrest without a warrant he is required
under the corresponding section in Act 13 of 1912 of South Africa to
inform the person arrested forthwith of the cause of his arrest. If
that is not done the arrest is not lawful. The learned Judge cited
GOVENDER V. REX 1946 (2) PH, H.258. In SV. NGIDI 1972 (I) SA 733 the
appellant escaped from custody after arrest. The evidence showed that
he had not been informed of the cause of his arrest although there
had been ample time in which to do so. HENNING J. held that he was
not in lawful custody when he escaped because he had not been
informed of the cause of his arrest. In BRAND V. MINISTER OF JUSTICE
1959 (4) SA 712, OGILVIE-THOMPSON J.A. said at 718:-
'Some
reliance was also sought to be placed by Mr Kotze upon section 26 of
Act 56 of 1955 which provided that
'Whenever
a person arrests any other person without warrant, he shall forthwith
inform the arrested person of the cause of the arrest.'
Decisions
exist to the effect that, if this section be not complied with, the
arrest is unlawful (see GARDNER AND LANSDOWNE, 6TH ed. Vol. I P215
and R V. KISTESAMY, 1947 (4) S.A 788(N) @ P. 792). It may be that
such a result will not always follow if the circumstances be such
that the arrested person for instance, a thief who is caught
red-handed-necessarily must know why he has been arrested (c.f
CHRISTIE & ANOTHER V. LEACHINSKY, ILL. 1947 (1) A.E.R 567, and R
V. NDARA, 1955 (4) SA 182 (AD) @184. It is, however, not necessary,
for the purpose of this appeal, to express any opinion on that
question;..."
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After
referring to the case law in the above quoted passage Rooney J,
concluded at page seventeen of the judgement;
"I
have no reason to dissent from the view that the law of Swaziland is
no different from the Law of England and that if in ordinary
circumstances a person is arrested, he must be informed as soon as
possible by the arresting police officer of the reason for his arrest
and any subsequent detention of that person is unlawful. Applied to
this case the position is that even if the defendants had been able
to justify the arrest of the plaintiff, the manner of the arrest was
contrary to law. "
It
is clear therefore that FRANK B. MAGAGULA'S case turned on the
failure by the arresting Police officers to inform the plaintiff in
that case of the reason for the arrest as required by section 30(4)
of the Criminal Procedure and Evidence Act 67 of 1938.
In
the premises and on the basis of the aforegoing I hold that the
arrest, shooting and subsequent detention of the plaintiff was
unlawful.
In
relation to the damages the plaintiff claims, damages for pain and
suffering amounting to E150,000. The pain and suffering arises from
the injuries he sustained when he was shot by the Police who intended
to effect an unlawful arrest upon the plaintiff. The doctor who gave
evidence on behalf of the plaintiff who attended him a day after the
incident or after he was admitted by his colleague described the
injuries as serious and said that though he had not seen the patient
(that is plaintiff) for a long time since he last treated him he was
certain that the injuries were permanent and the patient would never
walk properly ever again. Indeed the plaintiff who was still using
crutches during the trial stated that he was still experiencing pain
as a result of the injury. This was not disputed during the trial. In
respect of the pain and suffering I consider that the amount of E150,
000 (One hundred and fifty thousand Emalangeni) claimed by the
plaintiff is not excessive. He also claims E100,000, E85,000 and
another E100,000 for what he describes as loss of liberty and
freedom, discomfort and contumelia respectively. In respect of the
loss of liberty and freedom, I take into account that the period of
detention lasted about two months, which is a long time. The
plaintiff was kept at an office at the Hlathikhulu Police Station and
made to sleep in an office which had no bed. The Plaintiff was never
taken to a Magistrate for a remand hearing before the date of his
9
release
on bail at an amount of E250.00 (two hundred and fifty emalangeni).
There is no evidence that the plaintiff was brought before a
Magistrate as required by section 30 (2) of the Criminal Procedure
and Evidence Act 67 of 1938. There is therefore no evidence of an
order authorising the continued detention of the Plaintiff as
required by the aforesaid section. The Police appear to have acted in
total disregard of the plaintiff's individual rights and dignity as
a person which gives rise to an element of contumelia. Having regard
to the lengthy period during which the plaintiff was kept in custody
and the conditions under which he was detained at an office at the
Hlathikhulu Police Station it appears to me that a total amount of
E70,000 (seventy thousand Emalangeni) in respect of the loss of
liberty and freedom, discomfort and contumelia would be a fair and
reasonable award. There was no claim for estimated future medical
expenses and loss of earning capacity possibly arising from the
gunshot injury. In the result the plaintiff is awarded damages as
follows;
E150,000
in respect of pain and suffering.
E70,000
in respect of the arrest and detention of the plaintiff including
the discomfort and contumelia, bring the total amount awarded to
E220,000 (Two Thousand and Twenty Thousand Emalangeni).
The
Plaintiff is also awarded the costs of the action.
ALEX
S. SHABANGU
ACTING
JUDGE
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