Court name
High Court of eSwatini
Case number
2700 of 2007

Ngwenya v Commissioner of Police and Another (2700 of 2007) [2011] SZHC 103 (08 April 2011);

Law report citations
Media neutral citation
[2011] SZHC 103













IN THE HIGH
COURT OF SWAZILAND



HELD AT
MBABANE








CIV.
TRIAL NO. 2700/07



In the matter
between:



MANDLA
NGWENYA

…..............................................................................PLAINTIFF



AND



THE
COMMISSIONER OF POLICE

….................................
1st
DEFENDANT
THE ATTORNEY –
GENERAL
.............................................
2nd
DEFENDANT











O. Nzima for the
Plaintiff



S. Khumalo for
the Defendant







RULING ON
ABSOLUTION FROM THE INSTANCE







SEY J.



[1] By
Combined Summons dated the 18
th
day of July, 2007, the plaintiff instituted action
against both the first and second defendants for payment of the sum
of E450 000.00 being alleged damages he suffered in respect of loss
of liberty and freedom, pain and suffering and contumelia and
discomfort.







[2] Paragraphs 4 - 7
of the particulars of claim read, inter alia, as follows:



"
4. On or about the 1
stMarch
2007, police officers based at Pigg's Peak Police Station wrongfully
and unlawfully arrested, assaulted and tortured the plaintiff on an
alleged offence of robbery and/or dagga possession and thereafter
accusing him of having committed rape in South Africa.



5. During his
detention, the plaintiff was assaulted and tortured by the police in
breach of his Constitutional Rights. He suffered severe injuries.



6. Thereafter the
plaintiff was illegally taken to South Africa through the Matsamo
Border Post. In South Africa and in particular at Schoemenstal,
plaintiff was arrested, tortured and assaulted by police officers
there and caused to clean floors as well as motor vehicles.











7. Plaintiff was
subsequently released without any charges preferred against him. He
was ordered to travel without money and by foot and told to ask for
permission from army officers for entry into Swaziland."







[3] The
relevant evidence in chief of the plaintiff may be summarised, very
briefly, as follows: On 1
st
March, 2007, at about 4 a.m. police officers had gone to
his aunt's home at Busweni and they had asked him about certain boys.
The plaintiff had told them that he did not know the boys because he
was only visiting his mum who was ill. The police officers had asked
him for a gun and he had told them he did not have a gun. The police
officers then told him that he had run away from Mpofu where he lived
because he had robbed a store. The police officers handcuffed him and
took him back to Mpofu where the lady who was supposed to open the
said store was asked to identify him. He said the lady had told the
police officers that he was not the one who had robbed the store
because she knew him from that area and that the people who had taken
the money had done so in broad daylight. The plaintiff said he told
the police officers to let him go as it was evident that he was not
the one they were looking for.











[4] It is the
plaintiff's further testimony that the police officers refused to
release him on the basis that he was also wanted in South Africa for
the offence of rape. He said the Swaziland police officers then took
him to the South African border gates where they took off his
handcuffs and handed him over to the South African police. The
plaintiff alleged that he was handcuffed and taken to Schoemenstal
where he was tortured and assaulted by South African police officers
and caused to clean floors as well as motor vehicles.











[5] Under cross
examination defence counsel put it to the plaintiff that in his
evidence in chief he had not said anything about the alleged torture.
In response the plaintiff said he thought he was only giving evidence
briefly.







[6] I
find it apposite at this stage to reproduce that part of the cross
examination hereunder as follows: "
XX
bvS.khumalo



Put: You have not
said anything about the alleged torture.



A: I thought I was
only giving evidence briefly.



Put: The police
never tortured you and I will call witnesses to prove that.







A: They did arrest
and torture me and I resisted when they put me in the vehicle. I
could not even eat or drink water. I did not say they assaulted me
such that I suffered severe injuries.











Put: What is
contained in paragraph 5 of your particulars of claim is not correct.











A: If I had suffered
those severe injuries I would have gone to a doctor and I would have
opened a case using the doctor's report. If they kicked me I would
have gone to the doctor but slapping would not cause severe injuries
to warrant me to go to the doctor.







Put: You have not
been truthful to the court in your entire claim











A: It is correct. I
think that it was a misprint in the particulars of claim which states
I suffered severe injuries. By paragraph 6 of the particulars of
claim I mean at Schoemenstal police station the officers never
assaulted me. They only handcuffed me and when we got to the place at
Tjpisi they took off the handcuff.







I think there was a
misprint in paragraph 6 because when I explained the case to my
lawyer I did not tell him that I have been arrested and tortured and
assaulted by police officers. Some of what is in paragraph 6 is
wrong.







I do not know what
the oath means. I am telling the court the truth. The mistake is that
when I left the lawyer's office they were still writing on a piece of
paper and I am only seeing paragraph 6 now."







[7] The defendants'
counsel further put it to the plaintiff that he was not assaulted and
tortured and that he had only been arrested on suspicion of
commission of an offence, then questioned and discharged. However,
the plaintiff retorted that the police officers had assaulted him and
he said that he was tortured because the police officers arrested him
and they never asked him any questions but rather they were just
"telling him things." He said he did not report the assault
and that he took it as something minor because he was not hurt and he
did not suffer severe injuries. The plaintiff also stated that he was
never detained but he was handcuffed from the early hours of 4 a.m.
up to the evening. He said that in Swaziland he was going around in
the car with the police officers and that in South Africa he was not
put in a cell although he was handcuffed whilst sitting in the
office.











[8] In answer to
further questions as to why he was claiming the sum of E450 000.00,
the plaintiff said:











"The problem
was that the police officers deported me and wrongfully assaulted me.
That is the statement I made to my attorney. I was detained for more
than 11 hours and for those 11 hours I am claiming E450 000.00. I see
paragraph 10 of the particulars of claim. It is correct that I have
claimed E200 000.00 for loss of liberty and freedom. I arrived at
this amount due to the fact that there was pain in my heart and for
not being free in spirit and also for being assaulted. I have claimed
El 50 000.00 because the pain is due to the fact that I was
handcuffed tightly and when I asked them to remove it they refused.
Even when they took them off the blood was not circulating and there
were blood clots. I took the incident as a minor thing because being
handcuffed is not the same as being assaulted. I have claimed El 00
000.00 for discomfort because even in the community I was regarded as
a criminal."







[9] The plaintiff
tendered the evidence of his aunt Sizakele Ngosi who testified about
what the South African police said and did whilst the plaintiff was
in South Africa.







[10] At the close of
the case for the plaintiff, counsel for the defendants applied for
absolution from the instance on the basis that the plaintiff had
failed to make out a prima facie case and therefore the defendant had
no case to answer.















[11] This
application for absolution from the instance is governed by the
provisions of Rule 39 (6) of the Rules of the High Court which reads
as follows:











"At the close
of the case for the plaintiff, the defendant may apply for absolution
from the instance, in which event the defendant or one counsel on his
behalf may address the Court and the plaintiff or one counsel on his
behalf may reply. The defendant or one counsel on his behalf may
thereupon reply on any matter arising out of the address of the
plaintiff or his counsel."











[12] The overriding
consideration for granting absolution from the instance at the end of
the plaintiff's case is that it is considered unnecessary in the
interests of justice to allow the case to continue any longer in the
absence of a prima facie case having been made out by the plaintiff.



See
Putter v Provincial Insurance Co Ltd and
Another 1963 (4) SA771(W)







Also
Adecor (pty) Ltd v Quality Caterers (Pty) Ltd
1978 (3) 1037 (N) 1078F







[13] In
the case of
Gascoyne v Paul and Hunter 1917
T.P.D. 170 at 173 Villiers J. P.
opined thus:











"At the close
of the case for the plaintiff, therefore, the question which arises
for the consideration of the Court is, is there evidence upon which a
reasonable



man might find for
the plaintiff? The question



therefore
is, at the close of the case for the plaintiff was there a
prima
facie
case against the defendant Hunter; in
other words, was there such evidence upon which a reasonable man
might, not should, give judgment against Hunter?"







[14]
The test for absolution to be applied by a trial Court at the end of
the plaintiff's case was formulated in
Claude
Neon Lights (SA) Ltd v Daniel 1976 (4) SA 403 (A) at 409 G-H
in
these terms:



" When
absolution from the instance is sought



at the close of the
plaintiff's case, the test to be applied is not whether the evidence
led by the plaintiff establishes what would finally be required to be
established, but whether there is evidence upon which a Court
applying its mind reasonably to such evidence, could or might (not
should, nor ought to)







[13] In
the case of
Gascoyne v Paul and Hunter 1917
T.P.D. 170 at 173 Villiers J. P.
opined thus:











"At the close
of the case for the plaintiff, therefore, the question which arises
for the consideration of the Court is, is there evidence upon which a
reasonable



man might find for
the plaintiff? The question



therefore
is, at the close of the case for the plaintiff was there a
prima
facie
case against the defendant Hunter; in
other words, was there such evidence upon which a reasonable man
might, not should, give judgment against Hunter?"







[14]
The test for absolution to be applied by a trial Court at the end of
the plaintiff's case was formulated in
Claude
Neon Lights (SA) Ltd v Daniel 1976 (4) SA 403 (A) at 409 G-H
in
these terms:



"
When absolution from the instance is sought at the close of the
plaintiff's case, the test to be applied is not whether the evidence
led by the plaintiff establishes what would finally be required to be
established, but whether there is evidence upon which a Court
applying its mind reasonably to such evidence, could or might (not
should, nor ought to) find for the plaintiff.
(Gascoyne
v Paul and Hunter
supra; Ruto
Flour Mills (pty) Ltd v Adelson (2) 1958 (4) SA307 (T))"







[15] In a nutshell,
what this implies is that a plaintiff has to make out a "prima
facie" case to survive absolution because without such evidence
no Court could find for the plaintiff.











[16]
Judging from the plethora of cases dealing with absolution from the
instance, the question in this present case therefore is, at the
close of the case for the plaintiff, was there a
prima
facie
case against the defendants? In other
words, was there such evidence before the Court upon which a
reasonable man might, not should, give judgment against the
defendants named herein?











[17]
The law is trite, that he who asserts a fact must prove it, and where
enough and relevant evidence is not adduced, then it is he who has
failed to produce the evidence that will fail in his case. The burden
is on a plaintiff to show that he is entitled to the reliefs sought.
That burden does not shift to the defendant. After all, a plaintiff
should not rely on the weakness of the case of a defendant but rather
on the strength of his case as proved in Court. Accordingly, a
Plaintiff who fails to prove the relief (or reliefs sought) goes home
without victory. So it was held by the
Supreme
Court of Nigeria holden in Abuja on December 18, 2009 before their
Lordships: Niki Tobi, JSC; Aloma Mukhtar, JSC; Ikechi Ogbuagu, JSC;
Ibrahim Muhammad, JSC; and Christopher Chukwuma-Eneh JSC in Appeal
Case No. SC. 62/2003 between Mrs. Ethel Orji And Dorji Textiles Mills
(Nig.) Ltd & ors.











[18]
Coming back home to this jurisdiction, I feel emboldened to place
reliance on
W.A. Joubert (editor) The
Law of South Africa
(first reissue 1999)
volume 9, Butterworths, page 444 at paragraph 639, where he states
"That he who asserts must prove - because if one person claims
something from another in a Court of law, he has to satisfy the Court
that he is entitled to it."



















[19] In
the instant case, counsel for the defendants has submitted to the
Court that the plaintiff has abysmally failed to make out a
prima
facie
case because not only had the plaintiff
denied the allegation of assault and torture, as pleaded, but he had
also testified that he had considered the injuries to be minor.
Counsel further submitted that by virtue of section 22 (b) of the
Criminal Procedure and Evidence Act No. 67 of 1938, the police are
empowered to arrest, without warrant, on reasonable suspicion and
question the suspect. Furthermore, counsel submitted that even though
the plaintiff's claim is against the Swaziland police, the
plaintiff's witness, PW1, testified to the effect that the Swaziland
police officers never dealt with her. Counsel stated that PW1 devoted
a lot of time talking about things that were dealt with by the South
African police. It is also counsel's further submission that the
plaintiff failed to lead evidence in proof of damages to discharge
the onus on him and to thereby convince this Court that he is
entitled to the reliefs claimed.











[20] I must state
that I am in agreement with defence counsel's submissions that the
plaintiff denied the allegation of assault and torture under cross
examination. He categorically stated that he did not say the police
officers assaulted him such that he suffered severe injuries. He even
went on to explain that if he had suffered those severe injuries he
would have gone to a doctor and he would have opened a case using the
doctor's report. In his own words he said "If they kicked me I
would have gone to the doctor but slapping would not cause severe
injuries to warrant me to go to the doctor."











[21] At
this stage, I deem it necessary to state that having carefully
perused the pleadings of the parties herein as well as the evidence
produced by the plaintiff at the trial, it is apparent to this Court
that the plaintiff departed from his pleadings as set out in the
particulars of claim. It can be seen from the extract of the
pleadings, which I have recited earlier on above, that the plaintiff
had made allegations of torture resulting in severe injuries.
However, it is in evidence that he denied such allegations under
cross examination. When the plaintiff was confronted by defence
counsel with the various inconsistencies, he claimed that there was a
misprint in paragraph 6 of the particulars of claim. He then
strenuously went on to state that when he had explained the case to
his lawyer he did not tell him that he had been arrested and tortured
and assaulted by police officers. Be that as it may, however, it is
settled law that parties are bound by their pleadings and no party is
allowed to present a case contrary to its pleadings. Therefore, it
need hardly be stressed that the whole purpose of pleadings is to
bring clearly to the notice of the Court and the parties to an
action, trie issues upon which reliance is to be placed. See
Durbach
v Fairway Hotel Ltd 1949 (3) SA 1081 (SR) at 1082)
as
well as the recent case of
Nel v Jonker
(A653/2009) [2011] ZAWCHC 5
dated 17 February
2011.











[22] On
the whole, in my considered view and judging from the totality of the
evidence adduced by the plaintiff Mandla Ngwenya and his witness, I
find that this case did not reach the minimum threshold of making out
a
prima facie case
which was necessary to escape absolution from the instance.
Consequently, I am inclined to grant the defendant an absolution from
the instance. I so hold.







[23] In the result,
the defendants' application for absolution from the instance is
hereby granted and the plaintiff is ordered to pay the costs of this
action in terms of Rule 68 (2) of the High Court Rules.



























DELIVERED
IN OPEN COURT IN MBABANE ON THIS 8
th
DAY OF APRIL, 2011











M.M.
SEY(MRS)



JUDGE OF THE HIGH
COURT