THE HIGH COURT OF SWAZILAND
T. NO. 817/92
the matter between:
: A.F.M. THWALA
PLAINTIFF : MR. MADAU
DEFENDANT : MR. LANDMARK
this case the Plaintiff is applying for a default judgment and he
claims the following from the defendant:
of the sum of E200.000 being damages for unlawful and intentional
arrest of the Plaintiff on the 4th February, 1994.
of E50,000 being damages for unlawful and intentional arrest of the
Plaintiff on 18th February, 1991.
of the sum of E50,000 being damages arising from publication of
statements which were defamatory to the Plaintiff on 19th February,
Plaintiff applies for default judgment against the defendant who is a
police officer in the Manzini District Headquarters.
claim arises from the interrogation by the police of the Plaintiff in
a murder case in 1991. The defendant was the senior officer in the
Plaintiff was called by the Manzini police on 4th February 1991. They
wanted to interview him about the murder. For unknown reasons he was
kept in police custody for four days. The defendant was in charge of
the investigating team. He was not acting in his personal capacity,
but during the course and scope of his employment. The Plaintiff
chose to sue him personally because his claim against Government was
time barred. He was again called by the police on 18th February, 1991
and was kept for twelve hours. The Plaintiff also claimed damages for
defamation which he abandoned during the hearing because he was
unable to prove the Shwama custom.
is not disputed, although the action was not defended at the trial,
that the Plaintiff was detained for four days without being charged.
In his evidence he states that he was not given food for the first
two days. His relatives were not allowed to see him. He slept on the
floor and sometimes slept on the benches or chairs. He was again
called on the 18th February, 1991. Me was kept for twelve hours and
was released without being charged. The court is unable to decide
whether this was a reasonable period in the circumstances because
this is an application for default judgment.
Plaintiff has established that his arrest and detention for the two
periods were unlawful because he was not charged.
defendant had not come to court to justify Plaintiff's
over the two periods (SEE ZIYANE V ATTORNEY-GENERAL CIVIL CASE NO.
396/89 AND AUTHORITIES QUOTED THEREIN).
is unfortunate because the defendant is now sued in his personal
capacity. It is clear that the defendant as a police in charge of the
investigating team detained the Plaintiff during the course of
investigation of a murder case. It is also clear that the proper
defendant is the government. The Plaintiff decided to sue the present
defendant because his claim against the Government was then
prescribed. It is unfortunate that the defendant did not give the
summons to the Commissioner of Police who could hand it to the
Attorney-General to ask the Ministry of Labour to pay for the defence
of the defendant.
court must now decide the quantum of damages to award to the
Plaintiff for the unlawful detention over the two periods. The
Plaintiff was supposed to be helping the police in their
investigation but the police did not exercise their powers correctly.
To a certain extent, a citizen may be asked to help the police. It
can be stated to him that he is asked to help and not that he is not
going to be charged. As the matter is not defendant, the evidence of
the Plaintiff had gone unchallenged as far as the treatment he
received in the four and a half days. I call the 18th of February a
half day. In Ziyane's case, the Plaintiff was detained for one hour
but his detention was accompanied by circumstances very humiliating
to him. CJ. Hanna awarded E5000. In SHEPHERED MELUSI NHLABATSI vs THE
GOVERNMENT OF SWAZILAND CIV. CASE NO. 1273/91 the detention was for a
period of four days. The C.J. Hull awarded E12,000. In the above two
cases, the Plaintiffs had sued Government, not the police in their
personal xxxcities. Government defended the actions. The court heard
the present case the Plaintiff delayed until his claim against
Government was prescribed. He then sued the defendant in his personal
capacity. I must not be understood to be saying the Plaintiff had no
right to sue the defendant. Taking into account the number of days
spent in detention by the Plaintiff and that if the police had
exercised their powers properly, this action should not have come
before the court. I award the damages in the sum of E10.000 for the
four and a half days.
therefore enter judgment for E10.000 damages for the Plaintiff with