Lukhele v Attorney General and Others (NULL) [1994] SZHC 57 (24 August 1994);

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IN THE HIGH COURT OF SWAZILAND


Civ. Case No. 331/92


In the matter between:


THEMBINKOSI LUKHELE Plaintiff


And


ATTORNEY GENERAL 1st Defendant


DETECTIVE CONSTABLE ELPHUS SHABANGU 2nd Defendant


DETECTIVE CONSTABLE MNGOMEZULU 3rd Defendant


DETECTIVE INSPECTOR MKHATSHWA 4th Defendant


CORAM: Hull, CJ.


FOR PLAINTIFF Mr. Shabangu


FOR DEFENDANTS No Appearance


Judgment (24/8/94)


On the testimony of the plaintiff, while he was watching a football match at the Somhlolo National Stadium at Lobamba on Sunday 3rd March 1991, he was arrested by two police officers, Detective Constables Elphas Shabangu and Mngomezulu, who are the second and third defendants here.


Thereafter the officers, and the fourth defendant Detective Inspector Mkatshwa, detained him at Mbabane Police Station until 14th March 1991, although on 12th March he had been remanded to the Mbabane Prison by a court of law.


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During his detention in police custody he was kept in a small, overcrowded dirty cell, with little light, and in conditions such that it was either, difficult or impossible to sleep.


He was also subjected to interrogation by policemen led by Detective Constable Mngomezulu. On at least two occasions he was taken by them to a bush where they assaulted him, beating him about the ankles, knees, head and back of the body with sticks. He was refused access to a lawyer and on one occasion was not given supper.


Detective Constables Shabangu and Mngomezulu also took from him his Cressida motor-vehicle.


The plaintiff has also testified that his arrest was unlawful and his detention humiliating, that the deprivation of his motor vehicle greatly hindered him in his private and business affairs, and that he suffered wrongful and intentional injury bodily and to his dignity and reputation.


In further questions that I myself put to him, he testified that he had been charged with stealing a motor vehicle but acquitted. He also said that he had received treatment from prison staff in respect of his injuries, and that he was a carpenter.


None of the defendants has appeared at the hearing to oppose the plaintiff's claim. His evidence is unchallenged. However there is no proof of service against the third defendant.


The only questions for the court to consider are the basis of his claim for damages arising out of the episode, and the appropriate amount of damages.


What his particulars of claim aver, in my view, are unlawful arrest and detention, (in other words false imprisonment or arrest) and assault. Although he refers to the wrongful seizure of his car, the particulars do not aver Specifically that he suffered loss because of that.. Although they refer in the alternative to malicious arrest, is not asserted and it was not his evidence that any of the defendants


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procured his arrest and detention by any other person and it is, not alleged that any of them instituted or caused to be instituted criminal proceedings against him maliciously.


He claims, globally, fifteen thousand Emalangeni by way of general damages.


On his own evidence, he was arrested and detained. There was no evidence to rebut his testimony, which I accept. The onus of proving justification lay with the defendants; see Ziyane v. The Attorney General (Civil Case Number 396/59), a decision of Hannah C.J. in the High Court, and the cases cited by him in his judgment; see also Magagula v. The Commissioner of Police and Others (Civil Case Number 455/90), a decision of Rooney J. in the High Court. The defendants have not discharged that onus.


On his own evidence, he was also clearly assaulted by the third defendant.


In the absence of any kind of evidence in rebuttal, the court must inevitably conclude that he is entitled to substantial damages. To arrest a man unlawfully at a public stadium, and then to hold him in detention for eleven nights, is a serious infringement of his civil rights, and for police officers to subject him to a concerted assault is a grave abuse of power.


The plaintiff's total claim, for E15 000, is in these circumstances relatively modest. In Ziyane, more than three years ago, the then Chief Justice awarded the plaintiff E5 000 in respect of a period of detention not exceeding one hour which, although accompanied by humiliating circumstances, involved no physical violence. Recently, in Nhlabatsi v. The Swaziland Government (Civil Case No. 1273/91), I awarded E12 000 for false imprisonment or arrest to a man who was detained for some five days. In the instructive judgment of Dunn J., in Thwala v. Swaziland Government (Civil Case Number 973/93), the plaintiff was awarded E90 000 for wrongful imprisonment for one year.


It is not for the court to suggest to a litigant that he may be


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entitled to more than he has chosen to claim. The damages that he chooses to sue for are a matter for his own decision. Clearly, however, in the present case, the amount that he is claiming is justified fully on the evidence. Subject only to this observation, that he has not specified how much he seeks for his wrongful arrest and imprisonment and how much for the assault, I see no basis at all for reducing the total amount claimed.


Each of the two delicts, in my view, is itself serious but I think that the appropriate course is to award E10 000 damages for his wrongful arrest and imprisonment and E5000 for the unlawful assault, making E15 000 damages in all.


I accordingly give judgment against the first, second and fourth defendants jointly and severally in the sum of E10 000 damages and costs, the one paying the others to be absolved, and judgment against the first defendant in the sum of E5000, and costs.


DAVID HULL


CHIEF JUSTICE