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.
2
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
3
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
4
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
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