Lukhele v Swaziland Government (2834/2000) [2019] SZHC 01 (07 February 2019);

IN THE HIGH COURT OF ESWATINI

                                                  JUDGMENT          

 

In the matter Between:                                                                                Case No. 2834/00

 

 

ANDREAS LUKHELE                                                                               Plaintiff

 

 

And

 

 

SWAZILAND GOVERNMENT                                                   Defendant

 

 

Neutral citation        :           Andreas Lukhele v Swaziland Government  

                                                (2834/00) [2019] SZHC 01 (7th February, 2019)

 

Coram                        :           M. Dlamini J

 

Heard                         :           28th November 2018

 

Delivered                   :           7th February, 2019

 

 

 

Civil trial                             :           application for absolution from the instance - I am very much alive of my duty at this stage of the proceedings.  It is not to weigh the evidence on the scales of justice.  There is nothing to weigh on the other side of the scale following that the defendant has not adduced any evidence as did plaintiff.  My call is to ask whether the plaintiff has adduced sufficient evidence upon which a reasonable man might convict.  The question for determination in the matter at hand is whether the plaintiff has prima facie established a case for the defendant to answer. 

 

Held                                      :           it is my considered view that the action by the police to rely on the report by Dumisa Dlamini in arresting plaintiff was justified.  To later release him without a charge, was also in accordance with the due process of the law

 

                                               :           Particulars of Claim do not allege assault – plaintiff’s cause of action was based on unlawful arrest – unnecessary for the court to determine whether there was assault therefore

 

                                                :           costs - the evidence is that he was a mere security guard who had innocently carried out his superior’s orders.  It is very unfortunate that in discharge of Mr. Fakudze’s instructions, he was taken to have been carrying the missing sewing machine and not the carcass of a cow head.   The coincidence is the cause of his arrest and not his fault.  The court asked if he had instructed his attorney that he had been assaulted by the police.  His response was positive.  This evidence could not be interrogated further because it was not in his pleadings.  Whether correctly or wrongly, the fact remains that the court’s hands were tight in this regard. 

 

                                               :           Plaintiff’s cause of action is dismissed – no order as to costs

 

                                               

 

 

 

Summary:     The plaintiff’s cause of action is based on unlawful arrest by defendant’s police officers.  At the end of plaintiffs’ case, defendant, moved an application for absolution from the instance.  I proceed to determine the same.  

 

                        The parties

[1]                   The plaintiff is defined as follows:

                        “………an adult male of Manzini employed by the City Council of Manzini in the District of Manzini who sues in his personal capacity and his capacity as father and legal guardian of his minor child Manqoba Lukhele.”

 

[2]                   The defendant is described as:

                                   “………..the Swaziland Government dully represented in these proceedings by the Attorney General with offices at 4th Floor Ministry of Justice Building, Usutu Link Road, Mbabane, Hhohho District.”

                                   

                        Cause of action  

[3]                   The plaintiff particularised as follows:

 

                        “3.       On or about the 5th May, 2000, at about 4:20 p.m. next to Manzini

                        Trade Fair the Plaintiff was unlawfully arrested without a warrant by a police officer whose name and rank is unknown to Plaintiff from the Manzini Police Station.

 

            4.         At the time of the arrest the Plaintiff was in the company of his

                        Minor child Manqoba Lukhele, aged 3 years.

 

 

 

            5.         The Plaintiff together with his minor child were taken to the

                        Manzini Police Station where they were detained until 7th May  

                         2000.”

 

[4]                   The plaintiff also claims:

                                    “8.       By reason of the aforesaid wrongful arrest and detention the

Plaintiff suffered damages in his capacity as the father and legal guardian of the child and in his personal capacity in the sum of E100,000.00 made up as follows:

 

General damages for humiliation, for shock, and loss of freedom in respect of Plaintiff’s minor child Mancoba Lukhele                                                                                                      E20,000.00

General damages for humiliation for shock

And loss of freedom in respect of Plaintiff           E80,000.00_

                                                                                    E100,000.00”

 

                        Plea

[5                    The defendant’s defence reads:

                                    “3.       Defendants aver that the Plaintiff was arrested on reasonable suspicion of theft of an overlocking machine.  Defendant aver that the Plaintiff was released after a reasonable period having realised that they did not possess sufficient evidence to prefer a charge against him.

 

                                    4.         Defendant deny that the Plaintiff was in the company of a minor child.

                                    5.         Defendant deny that Plaintiff was detained together with a minor child.

                                    7.         Defendants aver the arrest was lawful in term of section 30 of the Criminal Procedure and Evidence Act in that the Plaintiff was seen carrying a bag in the vicinity of his duty station immediately before the discovery of a brake in.”     

                       

                        Oral evidence

[6]                   The plaintiff gave evidence on oath.  He testified that he was a resident of Mahlangatsha and worked at Manzini City Council.  On 5th May, 2000, he was on duty as the security guard at the Old Trade Fair.  After knocking off in the morning hours from his duty station, he reported to his boss at the premises of the Municipality.  His superior, Mr. Fakudze gave him a parcel.  It was a carcass head of cow.  He carried the carcass which was inside a bag on his head and went straight to the bus rank (Manzini) where he delivered it as per Mr. Fakudze’s instructions.   

 

[7]                   He then went home as it was his off day on that morning.  At about 4:00 p.m.   the following day, police came to his house.  They arrested him saying he had stolen a sewing machine from one of the tenants at the Old Trade Fair, work station.  They demanded that he surrender it.   He explained to them that he was only carrying the carcass of a cow head under the instruction of his boss Mr. Fakudze.  The police took him to the police cell.   On Saturday, the following day after his incarceration, the police took him with them to look for the said Mr. Fakudze in order to verify his version. 

 

[8]                   They searched for Mr. Fakudze at his home area in Macetjeni but in vain.  The police returned with him to the police station where he was further incarcerated.  They however went via his home where the minor  child was left.  At the police station one of the police officer physically assaulted him, demanding that he produce the sewing machine.  He insisted on his version.

 

[9]                   The next day, Sunday, they returned to Macetjeni in search of Mr. Fakudze.  They found him at his homestead.  Mr. Fakudze corroborated his version.  They returned with him to the police station where he was released.  He testified that the City Treasurer Mr. Dumisa reported him to the police as having stolen the sewing machine.    He denied that there was a break-in when he was on guard of the premises. He testified further that the police did not take him to the scene of the crime.

 

[10]                 The plaintiff was cross-examined.  I shall refer to the salient portion of his cross-examination later in this judgement.  The plaintiff closed his case.  The defendant applied for absolution from the instance. 

 

                        Determination

[11]                 I am very much alive of my duty at this stage of the proceedings.  It is not to weigh the evidence on the scales of justice.  There is nothing to weigh on the other side of the scale following that the defendant has not adduced any evidence as did plaintiff.  My call is to ask whether the plaintiff has adduced sufficient evidence upon which a reasonable man might convict.  The question for determination in the matter at hand is whether the plaintiff has prima facie established a case for the defendant to answer. 

 

[12]                 The plaintiff testified in chief; “ I was reported by Dumisa Dlamini to the police.  He is employed by the municipality as Treasurer”.  He was then cross-examined:

 

Mr. Simelane          :            “Apart from what Dumisa said, did the police say if there was an eye witness?

 

                                    Plaintiff                     :           “The police said I was seen by Dumisa

 

[13]                 He was further cross-examined:

Mr. M. Simelane:    “I put it to you that police received a complaint from Dumisa Dlamini that his shop had been broken into.”

 

Plaintiff                :   “Correct”

 

Mr. Simelane     :     “The break-in happened on the 4th May and       not 5th May.”

 

                                                Plaintiff            :        “Yes”

 

[14]                 Now the analysis of the evidence that is common cause is that there was a break in.  Mr. Dumisa Dlamini, one of the members of plaintiff’s employer reported to the police the said break–in.  This piece of evidence must be considered in line with the concession by plaintiff that there was a break-in.  I do note that plaintiff first denied any break-in.   He however, later under cross-examination, admitted a break-in as pointed above.  This piece of evidence was exacerbated by the evidence from plaintiff which is:

 

Mr. Simelane             :           “The police searched for you on the

                                                                                                4th May but never found you.”

 

                                                Plaintiff                     :           “I was on duty on the 4th May 2000.”

 

[15]                 It is confirmed by the Plaintiff that when the break-in took place, he was on duty.  He was queried on why he did not report the break-in.  Plaintiff answered by denying any break-in.  This response could not sustain in light of his evidence admitting a break-in which occurred on the 4th May, 2000 when he was on duty. 

 

[16]                 It is further common cause that Dumisa Dlamini did not just report a break-in.  He reported that he saw the plaintiff carrying the machine.  The court learnt of this evidence from the plaintiff.  The evidence that Dumisa Dlamini was an eye witness must be taken with the evidence coming from plaintiff that in the morning of 5th May 2000 he carried on his head a carcass of a cow head in a bag.

 

[17]                 The parties agree that upon the arrest of plaintiff and on plaintiff’s version, the police then took plaintiff to Mr. Fakudze to verify his story.  It is further the evidence from plaintiff which is not disputed by the defendant that when Mr. Fakudze confirmed that plaintiff was carrying a carcass and not a sewing machine, plaintiff was released forthwith.

 

[18]                 In the total analysis of the case serving before me, it is my considered view that the action by the police to rely on the report by Dumisa Dlamini in arresting plaintiff was justified.  To later release him without a charge, was also in accordance with the due process of the law.  This position of the law was in fact appreciated by plaintiff in this proceedings as he testified under cross-examination.

 

                                                Mr. M. Simelane     :           “You claim money for humiliation”

 

                                                Plaintiff                      :           “Yes, I want money for being slapped                                                                  without any sin.”

 

                                                Mr. M. Simelane     :           “The arrest was reasonably based on 

                                                                                                evidence”

 

                                                Plaintiff                     :           “They assaulted me saying there was                                                                   a break-in when there was none.”

 

[19]                 It is unnecessary for me to make a determination on whether there was any assault by the police of the plaintiff.   The reason is that the plaintiff’s Particulars of Claim do not allege any assault during the arrest of the plaintiff.  Plaintiff’s arrest was based on unlawful arrest.  In the final analysis, it cannot be said that  a reasonable man might convict on the evidence serving before this court.  It follows that the plaintiff’s cause of action must fail and the defendant’s application succeed.

 

                        Costs

[20]                 The plaintiff was by the date of hearing an elderly man.  The evidence is that he was a mere security guard who had innocently carried out his superior’s orders.  It is very unfortunate that in discharge of Mr. Fakudze’s instructions, he was taken to have been carrying the missing sewing machine and not the carcass of a cow head.   The coincidence is the cause of his arrest and not his fault.  The court asked if he had instructed his attorney that he had been assaulted by the police.  His response was positive.  This evidence could not be interrogated further because it was not in his pleadings.  Whether correctly or wrongly, the fact remains that the court’s hands were tight in this regard. 

 

[21]                 Further, the action proceedings were instituted in 2000.  By 12th April, 2001, the pleadings had been closed as evident by the Registrar’s date stamp in the face of the booking of pleadings.   This is evidence that he discharged his filling duties within time.   It is not clear as to why this matter had to be inordinately delayed for enrolment.  Again, the fountains of justice were rendered inaccessible for no apparent reasons.  For the above reasons, in the judicious exercise of my powers in determining whether to grant costs to the winning party, I am not inclined to do so.

 

[22]                 In the above, I enter the following orders:

 

  1. Defendant’s application for absolution from the instance succeeds;

 

  1.                Plaintiff’s cause of action is hereby dismissed;

 

                                                22.3                No order of costs entered against the plaintiff.

 

 

 

 

___________________________

M. DLAMINI J

 

For the Plaintiff        :           H. Nhleko of P. R. Dunseith Attorneys

For the Defendant    :           M. Simelane of Attorney General