IN THE HIGH COURT OF ESWATINI
JUDGMENT
In the matter between: Case No. 3999/2000
SIKELELA MAGAGULA Plaintiff
And
SWAZILAND GOVERNMENT Defendant
Neutral citation : Sikelela Magagula v Swaziland Government (3999/2000) [2019] SZHC 232 (29th November, 2019)
Coram : M. Dlamini J
Heard : 16th August, 2019
Delivered : 29th November, 2019
Civil claim : causa – assault at the hands of police – plaintiff failed to testify on the nature of injuries sustained – plaintiff’s witness compromised – plaintiff undertook to purchase her set of teeth upon his claim – plaintiff’s witness failing to testify on her part assaulting plaintiff – plaintiff witness credibility questionable – court cannot rely on her testimony
: plaintiff advising doctor police assaulted forcefully assaulting him on the right ankle – doctor examination showing swelling and tenderness on the left ankle – such no consistent – result – plaintiff failed to discharge burden of proof on balance of probabilities
: plaintiff’s cause of action dismissed
Summary: The plaintiff’s cause of action is based on assault inflicted upon him by members’ of the Royal Eswatini Police Service. On ground of vicarious liability, the plaintiff demands the sum of E620 676.74. Defendant denied liability, stating that the assaults were inflicted upon plaintiff by his live-in-lover.
The Parties
[1] The plaintiff described himself as an adult male of Mbabane, Hhohho region. However, in his testimony he said that he was from Lugongolweni, Lubombo region. The defendant is the Government of this Kingdom and an employer of the member of the police service.
Plaintiff’s claim
[2] The plaintiff alleged in his particulars of claim that on 30th May 2000 at about 2300 hours, he was assaulted by members of the Royal Eswatini Police while outside the Mbabane police station. He alleged vicarious liability in that the police were at all material times acting in the course and within the scope of their employment. He then sustained the following:
“minor bruises and abrasions on his left wrist, left elbow and back lower chest and a serious injury to his right ankle which permanently incapacitated the plaintiff.”
[3] He tabulated the quantum as follows:
“Medical expenses E 500.00
Estimated future medical expenses E 15, 000.00
Loss of earnings E 5,176.74
Loss of future earnings E450,000.00
General damages for pain and suffering
Loss of the amenities of life, permanent
Disability and indignities E150,000.00
E620,676,74”
Defence
[5] Defendant denied liability and disputed the quantum claimed as well The defendant apposed as follows:
“2.1 Defendant avers that Plaintiff sustained injuries during a fight with his girlfriend, to wit, Lobayeni Mnisi, who reported the matter to the police.”
“2.2 Defendant further aver that Plaintiff was assaulted by the said Lobayeni Mnisi.”
Oral Evidence
[7] The plaintiff testified that on 30th May 2000 he returned from work and found his one room rented flat locked. He went about looking for her roommate, his girlfriend. He found her and asked for the key. She directed her where it was usually kept. He told her that it was not there and he insisted that she comes with him to find it. An altercation erupted. She took a piece of wood and struck him on his left temple and he sustained a cut. She then opened the door. While in the house, he hit her using fists. She raised an alarm. Other tenants responded. They ordered her to leave as it was plaintiff who rented the flat. She obliged.
[8] After an hour at about 7:00 p.m. she returned in the company of the police. He was arrested for assaulting his girlfriend. He was conveyed to Mbabane police station in a police van. When he alighted, he found police officers. They shouted at him saying why he was assaulting “Manyovu”, meaning Mnisi who was her girlfriend. The police then assaulted him with open hands and kicks. He fell down. They kicked him. He shouted raising an alarm. They stopped assaulting him then. The following day, on 31st May, the station commander visited his cell. He enquired from the inmates as to why they were detained. He explained to him that police had assaulted him. He could not climb up ladders and discharge his functions at post and telecommunications. The station commander sympathised with him. He then released him and instructed the police to take him to hospital.
[9] The police enquired from him which hospital he was using. He told them that his doctor was Dr. Sarugaser. They took him to his doctor. He was attended by the doctor. He administered a plaster and prescribed that he should be off duty for a month. His supervisor, Prince Sam Thisha Dlamini advised him to sue the police for assaulting him. He did and prayed that the amount in the summons be granted. He was never charged for assaulting his girlfriend. The station commander advised him to solve his issue with his girlfriend.
[43] Plaintiff was cross-examined at length. I shall refer to his cross-examination later.
[10] The second witness was Dr. Sarugaser. In order not to burden this judgement I shall refer to his evidence under adjudication.
[12] The third witness, Modi Lobayeni Mnisi gave evidence on behalf of plaintiff. She testified that she knew plaintiff. He was his boyfriend or lover. On 30th May, 2000 there was a disagreement between the two of them which turned to be violent. Plaintiff wanted a house key. She told him that the house was not locked. Plaintiff took a bottle of beer and hit her on her forehead. She cried raising an alarm. Members of the community responded. The landlord rescued her, telling her to pack her belongings and leave. While she was bending to pick her belonging, plaintiff kicked her again. Her tooth came out while the rests were pushed inwards. She ran away to the Matsebula homestead, a community police. Mr. Matsebula became very angry. He called the police to pick him out. The police arrived in two vans. They took her to plaintiff’s room and knocked. He opened the door. They enquired why he assaulted her until she was covered in blood. She left in one van while plaintiff boarded the other police van.
[11] At the police station, they alighted. The police asked why he was assaulting Mantjolo. They slapped him with open hands. He fell and they kicked him. He cried and raised an alarm? They said that he should remove his shoes. They conveyed her to hospital where she was admitted for the night. She saw plaintiff after a week. He was in crushes and having a plaster. She denied ever assaulting plaintiff under cross-examination. She denied even retaliating to plaintiff’s assaults. She disputed plaintiff’s evidence that other tenants asked her to leave. She further revealed under cross-examination that plaintiff was assaulted for assaulting her. She did report a charge of assault at the Swazi national court where plaintiff was convicted. She denied that plaintiff had any wounds or visible scars prior to the assault by police. She was cross-examined:
Mr. Tsabedze : “Plaintiff told the doctor and the court that you assaulted him with a piece of wood.”
Ms. Mnisi : “I would not dare lay my hands on him. He would have killed me.”
[12] It also turned out that plaintiff was heavily drunk on that day. This witness was also drunk.
.
Adjudication
[23] The evidence of plaintiff and his girlfriend was in material contradiction on the turn of events of the 30th may 2000. The only piece of convergence in their evidence was the one relating to the police assaulting plaintiff. Even then we are not told the extent of the injuries sustained yet plaintiff has claimed for permanent disfigurement. I must hasten to point out that the credibility of this witness became wanting. Her evidence contradicted that of plaintiff materially. She came to court and discredited plaintiff by concealing her role in assaulting plaintiff. The only evidence which aligned with that of plaintiff related to the police wrongful conduct.
[13] The reason for above is not far from understanding. It was revealed under cross-examination. It is that as testified by Mnisi, that plaintiff promised to buy her a set of teeth. Although plaintiff promised to so do in June, 2000 before the Swazi nation court, plaintiff has not done so after nineteen years. Asked why he did not go back to report plaintiff on his failure to discharge his understanding of buying her a set of teeth, Mnisi said that plaintiff had said he was awaiting his claim. This claim was a motor-vehicle claim. This court can see through the dust thrown at it. The claim awaited is as put by the defence to Mnisi, the present claim.
[14] Her evidence stands to be rejected entirely for reasons of contradiction on material terms and that she is compromised by the promise by plaintiff to buy her a set of teeth in the event his claim is successful. She is further unreliable as she concealed her own assault on plaintiff. In this regard plaintiff’s evidence stands uncorroborated
[15] A dearth of authorities reflects that in terms of our procedure, the onus of discharging the burden of proof on the balance of probabilities lies with the plaintiff. In its endeavour to discharge the burden of proof, plaintiff called Dr. Sarugaser. Dr. Sarugaser testified that he first studied medicine in Bombay India. He then went to the Republic of South Africa where he specialized in gynaecology. This was at the University of Witwatersrand in 1986. He had been practicing medicine for the past thirty years. Dr. Sarugaser identified exhibit B2 as a medical report compiled by him in respect of his patient Sikelela Magagula, the plaintiff.
[16] Dr. Sarugaser read his report into the record as follows:
“On 31st May, 200, Mr. Magagula came to my room. He complained that he had been assaulted by his girlfriend with a piece of wood on his left temporal region of his skull two days prior to that, causing bleeding and laceration. He was arrested by the police. During detention, he alleges to have been assaulted by the police, with a fist blow to the same temporal region, causing to bleed and swell again. He was kicked forcefully on his right ankle, resulting in painful swelling and inability to walk on that foot. He was also kicked on the right back of lower chest, causing bruises and pain.
PAST HISTORY:
March 1996: assaulted (L) side of forehead & (R) side of lower back of chest, #Ribs,
October 1996: MVA – C/O pain whole body; abrasions (L) Knee, (L) Shoulder and (L) side of body. X-ray Lumbar Spine revealed old #spine
January 1999: #(R) Ankle
April 1999: Alleged assault with knobkerrie on head & (L) upper back previous night
January 2000: Fell on his back and hurt back
March 2000: C/O backache on & off
EXAMINATION & TREATMENT:
Limping, swollen & tender (L) Ankle, maximally where he alleges to have been kicked. Laceration (L) Temporal Scalp. Tender along mid (L) Spinae Erecta, with a bruise near 11, 12 Rib area. He needed analgesics, antibiotics & dressings for the wounds, and a POP cast for ® Ankle for 4 weeks.
COMMENT:
Due to the above alleged assault, the old # areas, viz., (R) Ankle,
11-12 Ribs, were most seriously affected. He still walks with a limp (apparently a long distance from home to the bus stop), and has constant Backache. These are likely to go on for a long period.
He needs a thorough assessment by an Orthopedic Specialist Surgeon in order to answer your questions a,b,c,d, comprehensively. This proposal was long recommended to him. However, his present financial circumstances precludes this immensely expensive exercise.”
[17] Having read his report, the doctor testified further on dislocation of his ankle:
“There were no new fractures.”
[18] Under cross-examination, he was asked:
Mr. Tsabedze : “He had all these fractures before?”
Dr. Sarugaser : “Yes”
[19] Under his cross-examination, plaintiff pointed out that the reason the doctor administered a plaster on his ankle was because the police had caused an injury in his ankle. It was put to him as follows:
Mr. Tsabedze : “On 2000 it was not correct to say you were permanently incapacitated?”
Plaintiff : “I was injured but I would not know but my view is that it is permanent.”
[20] Contrast this evidence with Dr. Sarugaser’s testimony under cross-examination which reveals:
Mr. Tsabedze : “You agree that the right ankle effusion which was there before was also there on 15th May?”
Dr. Sarugaser : “He did not complain about it.”
Mr. Tsabedze : “Was the injury healing?”
Dr. Sarugaser : “He sustained the fracture of that ankle in 1999. On 15th May no specific complaint was made on 15th May 2000 about the ankle.”
[21] When asked why he administered the plaster on plaintiff then, Dr. Sarugaser testified:
“He came with Swazi Med and because Swazi Med restricts us, we cannot do detailed examination. We take what the patient says.”
[22] Considering the evidence with his report at B4, the doctor authored on fractures and dislocations:
“Nil. Effusion R ankle medically if pain over old L leg from assault.”
[23] He was cross-examined in the above:
Mr. Tsabedze : “You are saying left ankle, right ankle. You say there is no fracture. Which is which doctor?”
Dr. Sarugaser : “According to my record on 4th January 1999 he mentioned he was injured. An X- Ray taken. There was no fracture on the right ankle.”
Mr. Tsabedze : “The effusion was on the right ankle and the assault on the left leg which was swollen.”
Dr. Sarugaser : “Yes”
Mr. Tsabedze : “I put it to you that when Mr. Magagula saw you on 31st May that wound which he sustained back in 1999 had not healed. That is why there was effusion and not that he was assaulted?”
Dr. Sarugaser : “Fractures are notorious for leaving certain amounts of alignments so that during cold weather and any form of injury they revoke symptoms of earlier pain. They heal and give pain, heal and give pain because it is a repaired tissue and not the original.”
[24] The doctor was asked on the history of plaintiff. He responded that plaintiff was prone to injuries. Exhibit B2 corroborates this. From the above, it is clear that the plaintiff when he went to the doctor he did not complain about pain in his ankles. This is what the doctor testified about under cross-examination. The effusion on the right ankle where the plaster was administered as pointed by the doctor could have been caused by temperatures dropping in the atmosphere.
[25] Then the doctor further authored in exhibit B4 that there was “pain over old left leg from assault”. Now this pre fixed objective “old” suggest to this court that the assault which caused pain in the left leg was old. Otherwise it would be folly to say the leg was old. He was merely thirty six years old. In exhibit B, the doctor points out that plaintiff had alleged that he had been assaulted by police. However, in exhibit B2 constructed from his file, the doctor pointed out that plaintiff had alleged that he had been assaulted by his girlfriend and police.
[26] Plaintiff himself did not mention the injuries he sustained while assaulted by the police. In his cross-examination, he acknowledged that in 1999 he fell into a ditch and injured his leg. He did not remember which leg he injured. The comments by Dr. Sarugaser in exhibit B2 that due to the above assaults, the old area viz. Right ankle 11-12 Ribs were most seriously affected. The question is which are the above assaults? The doctor mentioned these assaults under “Past History” in exhibit B2. It is reflected:
“PAST HISTORY:
March 1996: assaulted (L) side of forehead & ® side of lower back of chest, #Ribs,
October 1996: MVA – C/O pain whole body; abrasions (L) Knee, (L) Shoulder and (L) side of body. X-ray Lumbar Spine revealed old #spine
January 1999: #(R) Ankle
April 1999: Alleged assault with knobkerrie on head & (L) upper back previous night
January 2000: Fell on his back and hurt back
March 2000: C/O backache on & off”
[27] Of course the doctor forgot to include that on 4th January 1999 the plaintiff fell on a ditch in town and sustained an injury on his right ankle as evidence admitted by plaintiff in his cross-examination and corroborated by the doctor in court. Under this past history of assaults and injuries and in the light of the evidence that plaintiff was prone to injury together with the common cause evidence that in the night of 30th May 2000 the plaintiff was assaulted by his girlfriend how then does the court rule that the pain that led the plaintiff to visit Dr. Sarugaser on 31st May 2000 was as a result of assault inflicted by the police. I asked this question because there is no corroboration of the evidence that the police assaulted plaintiff on the night of 31st May 2000.
[28] The court has plaintiff’s say so. However, there is evidence from plaintiff that he was assaulted by his girlfriend until he bled. Dr. Sarugaser’s prepared two medical reports. One reflects that plaintiff told him that he was assaulted by his girlfriend and the police while the other reflects that he was assaulted by the police. His girlfriend’s assault is not mentioned in the second report. Both reports recorded examination of 31st May, 2000. Why, especially in the light of the plaintiff’s evidence that when his girlfriend assaulted him with the piece of wood, he bled. He did not say so about the assault by the police. He merely said police hit him with open hands and fist. He fell and they kicked him. He cried and they stopped assaulting him. He did not describe the nature of his wounds nor did he tell the court where exactly he was kicked in his evidence. Further, one report says that plaintiff’s clothes were blood stained. We know that this blood stain was from the assault inflicted upon him by his girlfriend.
[32] The difficulty in deciding what exactly happened at the police station premises on the night of 30th May 2000 is comfounded by plaintiff’s failure to tell the court on the nature of injuries he sustained as a result of the assaults in the hands of the police. He testified that he fell down and police kicked him. Where? The court was not told. So how does the court decipher which injury was inflicted by the police and plaintiff’s girlfriend without any evidence serving before it.
[34] Then there is a glaring contradiction which was pointed out by Counsel for the defence to Dr. Sarugaser. Dr. Sarugaser authored and testified:
“He was kicked forcefully on his right ankle, resulting in painful swelling and inability to walk on that foot.”
[54] However, when the doctor recorded his examination, he observed:
“EXAMINATION & TREATMENT:
Limping, swollen & tender (L) Ankle,”
[54] Now if the plaintiff told the doctor that he was “forcefully kicked at the right ankle resulting in pain, swelling and inability to walk on foot,” why then when the doctor examined him, he notice a “swelling and tender on the left ankle?” Under cross-examination this contradiction was canvassed and the doctor opted to say that the tenderness he observed was due to the old injury sustained in 1999. He also testified that a fracture does not heal. That is why when temperatures drop, pain is experienced. This is because the tissues are no longer in their original conditions but repaired. When asked again on why he administered a plaster on the right ankle the doctor pointed out that owing to the fact that plaintiff’s medical aid cover was limited, he merely did what plaintiff told him.
[30] Now, the totality of the above points to one direction. It is that plaintiff failed to discharge his burden of proof on a balance of probabilities.
[34] I note that the defence opened its case and called one witness. He testified that plaintiff had not been assaulted when he was admitted to the police station. However, his evidence in this regard cannot be accepted as he contradicted the evidence of the plaintiff. Of note again is that this witness did not testify that plaintiff was assaulted while in the hands of the police. In brief, the evidence of the defence witness did not boost the plaintiff’s case.
[31] In the final analysis the following orders are entered;
31.1 Plaintiff’s cause of action is dismissed;
31.2 Plaintiff is ordered to pay costs of suit.
___________________
M. DLAMINI J
For the Plaintiff : H. S. Nhleko of Dunseith Attorneys
For the Defendant : B. Tsabedze of the Attorney General
