IN THE HIGH COURT OF ESWATINI
JUDGMENT
In the matter Between: Case No. 2030/18
VELEZWENI MNGOMEZULU Plaintiff
And
BONGANI KHAMANGA MAGAGULA 1st Defendant
THE ATTORNEY GENERAL 2nd Defendant
Neutral citation : Velezweni Mngomezulu v Bongani Khamanga Magagula and Another (2030\2012) [2019] SZHC 139 (30th July, 2019)
Coram : M. Dlamini J
Heard : 20th May, 2019
Delivered : 30th July, 2019
Interrogation : There is nothing amiss by police investigators to call a suspect to report at the police station for purposes of ascertaining his version vis-a-vis that of the complainant - the law however does not countenance that in the course of suspects interrogation, he should be subjected to any form of assault - this constitutes an unlawful conduct which may result in a civil and criminal sanction.
Summary: Plaintiff asserted in his Particulars of Claim that he suffered damages to the tune of E150 650.00 as a result of assaults inflicted upon his body by the 1st defendant who was in the company of the Royal eSwatini Police. 1st defendant disputed plaintiff’s claim and stated that plaintiff was called to appear before the police for purposes of assisting with investigations.
The Parties
[1] The plaintiff is an adult male of Mbulungwane area, Shiselweni region. The 1st defendant is an adult male in the employ of the Royal eSwatini Police, stationed in Matsapha. He is identified as Kamanga and not Kamanda. The 2nd defendant is the legal representative of the Government. Its principal office is at 4th floor, Justice Building, Usuthu Link Road, Mbabane, Hhohho.
Parties Case
[2] The plaintiff has alleged that on 15th August, 2012 he was called to report at the Matsapha Police Station. He was then assaulted and suffered a number of injuries. As a result he suffered damages to the total of E150 650.00. The initial claim was E200 650.00. On the hearing date plaintiff’s Counsel submitted that the claim of E50 000 arising from estimated future medical expenses was abandoned. Defendant refused to pay the said sum despite demand.
Defendants
[3] The 1st defendant have pleaded that he did not assault the plaintiff. He only invited plaintiff to appear at Matsapha Police Station in order to assist investigate a criminal charge of indecent assault laid against him.
Oral Evidence
[4] The plaintiff, Velezweni Vusi Mngometulu took the witness stand and on oath testified that in 2012, he worked as a security guard at Afrotin. 1st defendant called him saying that he should report to the police station. He obliged. This was in the morning. He was advised that 1st defendant would report for duty in the afternoon. He left to return in the afternoon. Upon his return, he found four police officers in the criminal investigation department. He greeted them. They responded and introduced themselves as Khamanga Magagula, Sacolo and Thring. He could not recall the fourth officer who was male.
[5] The officers told him that they were investigating him for a certain matter. 1st defendant stood up and assaulted him with an open hand and a fist. Blood oozed from his nostrils. The other police officers laughed at him when blood oozed. 1st defendant then told him that he was in love with his girlfriend. He then said that he was sorry that the said girl was also his (Khamanga’s) girlfriend. The other three officers laughed and left the room.
[6] Another officer entered by the name of Duma Mngometulu. Plaintiff told Duma Mngometulu that he had been with his girlfriend the previous day after she paid him a visit at Mahlabatsini where he was renting a room. She was a Hlophe girl. After 1st defendant apologised for what he had done, plaintiff then asked him to write a letter so that he could be attended by a doctor. 1st defendant told plaintiff to advice the doctor that he had been assaulted by criminals. 1st defendant then pretended to be writing something in a book. He asked for his name and where he was residing. He then said he should go to hospital. He however did not give him the doctor’s form.
[7] Plaintiff did go to hospital and was attended by a doctor who noted that he was injured on the eyes. The doctor gave him two letters and a prescription note. They were marked exhibit B1, B2 and B3 respectively. He did see a statement for the first time from his attorney. He never recorded a statement. He was not charged and prosecuted for any offence. After he was discharged from hospital, he returned to the police station to see the 1st defendant’s commander. The commander attended to him and thanked him for the information. He recorded his contact address and undertook to call him after investigation.
[8] Plaintiff did meet his Hlophe girlfriend after the assault. The Hlophe girlfriend explained to him that 1st defendant perused her cell phone where he discovered plaintiff’s cell number. It is then that he called plaintiff. One day, while he was going into a shop, he met 1st defendant who apologised, saying that he was sorry. He wanted to give him E500 but he refused to take it. Plaintiff was cross-examined at length. I shall refer to his cross examination later.
[9] PW2 was Dr. Motuma Demisse, a general surgeon who holds a Masters degree in public health. He works at the Raleigh Fitkin Memorial Hospital, Manzini. He testified that on 16th August, 2012, plaintiff came to hospital. He was attended by Dr. Mkhize. He diagnosed him as having a soft tissue injury. He prescribed bruffen. A soft tissue injury ranges from minor to severe. Following that he did not do anything further on plaintiff, it meant that the injury was minor.
[10] The diagnoses “soft tissue injury secondary to assault” meant that the injury was due to assault. On exhibit C2, Dr. Chilumba merely made a sick note. He identified the illness as confidential. He gave plaintiff a day off from work. This was on 21st August, 2012. On 2nd July 2013, a year later, plaintiff came for a medical report. He authored the report whose content reveals that he had multiple bruises on the face and right sub conjunctival haemorrhage. Plaintiff returned later as he was dissatisfied with the report. He added a portion to what he authored prior.
[11] The next witness was Dr. Mkhize. I shall refer to his evidence under adjudication.
[12] Counsel for plaintiff informed the court that the next witness ought to be the police officer who arrived at the CID’s office while he was under interrogation and who saw him while soaked in blood. This was an officer by the name of Duma Mngometulu. The court ordered that the witness should attend to court to give evidence on the matter. He complied and testified under oath. He identified himself as Constable Duma Mngometulu. He testified that he was on duty on 15th August, 2012. He was based at Matsapha Rapid Response Unit in Mahhala area. He went via the police station to borrow a bullet proof vests. He entered the CID office and found Inspector Simelane, Sergeant Sacolo and other officers. He noticed plaintiff who was well known to him following that they came from the same home area. He greeted him and enquired why he was at the police station. Plaintiff explained that he had been called for questioning concerning his girlfriend’s matter. Duma Mngometulu promised him that he would check him later.
[13] He proceeded with his mission and left the police station. He did not see him later that day. He however, met him some days later. Plaintiff had approached him. He asked him to furnish him with the force number of Constable Bongani Magagula. He informed him that he was assaulted by the police on the day he was in the CID offices. He advised plaintiff to go to the police station and lodge a formal complaint. At this stage, the plaintiff closed his case. The defendant called three witnesses.
Defence
[14] The first witness was Detective Constable Bongani Magagula who on oath pointed out that he is nicknamed as Kamanga. He was a police officer and in August, 2012 based in Matsapha police station. He denied ever being at work in the afternoon of 15th August, 2012. He testified that he never dealt with Nolwazi Hlophe’s complaint. He said that he did not know Nolwazi. He never met plaintiff on the following day to offer him the sum of E500.
[15] The second defence witness was Assistance Inspector Bhekisisa Simelane. He testified that he was on duty on 15th August, 2012. He knew plaintiff from his home area where they had ample opportunity to interact with each other. They called each other brothers. Around 6:00pm on the 15th August 2012, plaintiff arrived into the CID offices for interrogation on an indecent assault charge. They greeted each other. Sergeant Sacolo was the lead investigator. He was assisted by Constable Vilakati, Mamba, Myeni and Matsebula. This witness was not part of the investigation team but was moving in and out the CID’s office. The 1st defendant was not part of the investigation team.
[16] After the interrogation and when plaintiff was leaving the police station, he interacted with plaintiff. They spoke as acquaintances. Plaintiff was not injured. He was in the same conditions and mood as he had arrived. On the following day, plaintiff arrived at his police compound. He asked him to give him the full particulars of 1st defendant. He enquired why he wanted 1st defendant particulars. Plaintiff refused to disclose the reasons. However, plaintiff did not insist on Magagula’s particulars. They continued to chat on other matters.
[17] Detective Sergeant Nompumelelo Sacolo was the next witness. She identified the plaintiff as a suspect under an indecent assault complaint. She called the plaintiff to answer to the allegations. Plaintiff arrived to find Sacolo in the company of Constable Simelane, Vilakati Myeni, Mamba, Hlatshwayo, Gumedze and Masango. 1st defendant was not in their company. She attended to the plaintiff who then recorded a statement. Plaintiff was never assaulted by any police. She then handed the entire docket to the court. All the defence’s witnesses were extensively cross-examined.
Adjudication
The Issue
[18] The question for determination is crisp: Was the plaintiff assaulted by the 1st defendant?
Legal Principles
[19] There is nothing amiss by police investigators to call a suspect to report at the police station for purposes of ascertaining his version vis-a-vis that of the complainant. The law however does not countenance that in the course of suspects interrogation, he should be subjected to any form of assault. This constitutes an unlawful conduct which may result in a civil and criminal sanction.
Determination
[20] The plaintiff’s Particulars of claim reflects as follows:1
“6. On or about the 15th August, 2012, plaintiff was called to report at Matsapha Police Station and subsequent thereto Plaintiff was severely assaulted by 1st Defendant and suffered injuries to wit:-
6.1 Head injuries;
6.2 Constant nose bleed;
6.3 Partial loss of vision; and
6.4 Partial loss of sense of hearing.
7. As a result of the said assault and injuries Plaintiff sustained damages in the sum of E200, 650.00 (Two hundred thousand six hundred and fifty Emalangeni) made up as follows:-
7.1 Medical expenses E 650.00
7.2 General damages for pain and suffering,
Loss of the amenities of life, permanent
Disability and indignitas E 150,000.00
TOTALING THE SUM OF E 150,000.00”
[21] Supporting his claim, the plaintiff testified under oath that he was summoned to the police station, Sigodvweni, Matsapha. The 1st defendant was among the police officers who interrogated him. He then attested:
“1st defendant stood up and assaulted me with open hands and fists until blood oozed out of my nostrils.”
[22] In support of the injuries sustained, plaintiff testified that he went straight to the hospital where he was attended by the doctor. He submitted three documents in this regard. These appeared in the bundle of discovered documents. The court marked them as Exhibit B1, B2, and B3. I shall refer to their contents later. Under Dr. Motuma they were marked as Exhibit C1, C2 and C3 as originals of Exhibit B1, B2 and B3.
B3 reads:
-
“Out-patient record/prescription
Name:Velezweni Mngometulu
Date
Company/Treatment/Referral
08/04/13
Painful eyes, ear side
Post trauma, headache
Plan
bruffen 400g x 2, eye drops, ear drops, eye drops 500g
HTC – NR
MBIKWAKHE CLINIC, P. O. Box 35, Mankayane”
[23] Dr. Motuma testified on the medical conditions of the plaintiff. He acknowledge that he authored exhibit B1. He referred the court to exhibit C1 which read:
“RFM HOSPITAL
PRESCRIPTION
Index No: 22267/12 Date: 16/08/12
Name: Velezweni Mngometulu Age: 36 Sex: M
x
DG:STI 2 Dispenser:…………….Fee:…………………
Bruffen 400g
Signature: S S.Mkhize”
[24] In his evidence in chief with regard to exhibit C 1, he testified:
“On 16th August, 2012 Velezweni Mngometulu came and was attended by Dr. Mkhize. He diagnosed him with a soft tissue injury (STI). He prescribed bruffen, a pain killer. A soft tissue injury ranges from miner to severe. In the present case, the soft tissue injury was minor because the doctor did not do anything further to it. The inscription STI 2 assault means the soft tissue injury was caused by an assault.”
[25] Now the question is whether the diagnosis by Dr. Mkhize on the 16th August, 2012 was consistent with the description of the assault described by plaintiff in his evidence. I have already pointed out that plaintiff testified that he was beaten with fists and open hands until he bled from his nostrils. His bleeding left him soaked in blood. Dr. Motuma who read the findings by Dr. Mkhize who examined him concluded that following that Dr. Mkhize did not do anything further on the soft tissue injury, the injury was minor. This was further evidenced by the prescription of bruffen as a pain killer.
[26] Dr. Motuma testified that on 2nd July, 2013 plaintiff came to the hospital and requested him to write him a report about his injuries for purposes of giving the same to his lawyers. He authored Exhibit C 3 which reads:
“2 July 2013
To Whom It May Concern
RE: VELEZWENI MNGOMETULU, AGE – 38, SEX - MALE
This letter serves to certify that the above mentioned patient was attended at R.F.M. Hospital on 16 August 2012 for allegedly assault by someone.
Findings on the day of examination showed multiple bruises on the face and right subconjunctival haemorrhage. He was treated accordingly and sent home.
Sincerely yours
Dr. Motuma D.
SURGEON”
[27] Later again on 27th September 2016, plaintiff, dissatisfied with exhibit C 3, came and ask for another report. Dr. Motume wrote exhibit C 4 which reads:
“27 September 2016
To Whom It May Concern
RE: VELEZWENI MNGOMETULU, AGE – 40, SEX – MALE
This letter serves to certify that the above mentioned patient was attended at R.F.M. Hospital on the 16th August 2012 for allegedly assault by someone. Findings on the day of examination showed multiple bruises on the face and right subconjunctival haemorrhage. He was treated and followed up until alleged signs resolved.
According to the doctor’s report which was documented on the day the patient arrived at casualty, there is no future medical expenses, no permanent disability or future further follow up needed.
Thank you.
Sincerely yours
Dr. Motuma D
SURGEON”
[28] On the two medical report or letters Dr. Motuma was under cross-examined referred to Exhibit C1, a medical report by Dr. Mkhize. It was put to him that the injuries mentioned by him in exhibits C 3 and C4 viz, multiple bruises on the face and right subconjunctival haemorrhage “were not mentioned in Dr. Mkhize’s report of 16th August, 2012 (Exhibit C 1). The doctor answered that it was so but these were possible injuries. Counsel on behalf of defendant then posed;
Mr. Mndeni Vilakati : “Is this your interpretation of Dr.
Mkhize’s report or your
assumption?”
Dr. Motuma : “My assumption.”
[29] I must hasten to point out that his assumption find no factual support in view of his own evidence that the mere fact that Dr. Mkhize merely administered bruffen as a pain killer upon plaintiff without further ado points out that the soft tissue injury was minor. This analysis finds further support from evidence later adduced by Dr. Mkhize based on medical examination of the plaintiff. Dr. Mkhize testified under oath that he referred plaintiff to an optician after he complained about his vision. This was on 23rd August, 2012. Before that he had read the nurses entry on plaintiff medical sheet marked as Exhibit D 2 which showed that the patient complained about pain in his head and right eye and that he would have nose bleeding sometimes.
[30] He had attended to the plaintiff on 16th August, 2012 as he identified Exhibit C1 as authored by him. On the 23rd August, 2012 he referred the plaintiff to an opththalmic nurse. He, however, conducted his own examination on the plaintiff. As he complained about pain on the right ear, he examined him and found that it was normal. The opththalmic nurse observed no bleeding on the nose. X-Ray results showed that his skull was normal. His eye was found to be 6/6 which meant that it was normal. The eye was found not to be red. The cornea was clear. The arteria chamber was clear and pupil normal. He was however, given eye drops owing to the information sourced from him only.
[31] The plaintiff was also extensively examined based on the information tendered by him that he was experiencing bleeding sometimes. Upon examination of his nostrils, they were found to be normal. The doctor stated in this regard:
“On presentation, he said he was bleeding. On examination nothing was
found to tally with his bleeding.”
[32] On his complaint about headache, he was found to have no meningitis. His head was found to be normal. At the end Dr. Mkhize advised him not to pickle his nose and avoid remaining in the sun. On 26th July 2013, he was examined again as he complained on the same pain. His vision was found to have improved. In his evidence in chief, Dr. Mkhize was shown Exhibit C 3. He pointed out that the findings on multiple injuries and subconjunctival haemorrhage were not consistent with his report.
[33] In brief the medical examination conducted by Dr. Mkhize and the opththalmic nurse on the plaintiff on 16th August 2012, 26th June 2013 and 25th May, 2013 where not consistent with the information presented by plaintiff to Dr. Mkhize and the nurses. He exaggerated his condition and this could not be supported by medical examination. His claim of E150, 000.00 arising from pain and suffering, loss of amenities of life, permanent injuries fails to find supported from his own witnesses. Dr. Motuma himself who “assumed multiple bruises on the face and subconjunctival haemorrhage” authored under exhibit C4 on 26th September, 2016 “[T]here is no future medical expenses, no permanent disability or future follow up needed.”
[34] The next question is who assaulted plaintiff, if at all he was assaulted? The evidence of plaintiff is that he was assaulted by 1st defendant in the course of his employment. It is not clear why 1st defendant is then cited in the summons in his personal capacity. In support of this evidence, plaintiff, pointed out that police officer Duma Mngometulu arrived at the CID and intervened on his behalf by stopping 1st defendant from continuing with his unlawful assault on him.
[35] Constable Duma Mngometulu was called to testify. He confirmed that he met plaintiff at the CID’s offices who was well known to him and had a brotherly relationship with him. Plaintiff was normal. He spoke with plaintiff who informed him that he was at the police station following an invitation by the police for purposes of interrogation. He also saw plaintiff on the following day who did complain to him that he had been assaulted by police.
[36] According to plaintiff’s evidence both in chief and under cross-examination, Duma Mngometulu found him bleeding profusely. He was already soaked in blood when he intervened. 1st defendant stopped assaulting him and apologised thereafter. Duma Mngometulu was ordered by the court to appear in court after plaintiff Counsel’s failure to secure his attendance. He was however, reported to be attending a course. He was in essence plaintiff’s witness. He denied ever seeing plaintiff assaulted or blood soaked. In brief, plaintiff’s evidence finds no support either from his own witnesses and the doctors.
[37] I appreciate that Dr. Mkhize found that plaintiff had a soft tissue injury which was described as minor. This evidence corroborates assault on the plaintiff. It however does not corroborates assault of the magnitude described by plaintiff at the hands of 1st defendant. This evidence, juxtaposed with the evidence of the defence that 1st defendant was not in the company of the police officers who interrogated him on the indecent assault charge, points to one direction. That direction is that the soft tissue injury seen by Dr. Mkhize on plaintiff was not inflicted by the 1st defendant. Plaintiff sustained it from elsewhere.
[38] The above analysis is fortified by plaintiff’s further evidence throughout his testimony that after the assault at the hands of the 1st defendant at the police station, he proceeded straight to Raleigh Fitkin Memorial Hospital where he was attended by the doctor. Documentary evidence show however, that he only went to the doctor on the following day. Why when he was having a heavy bleeding? The answer is there was no such heavy bleeding. Dr. Mkhize’s report of 16 August 2013, following day after the incident, mentions no heavy bleeding. Subsequent report by plaintiff on 21st August, 2012 on heavy bleeding is without any medical support as per Dr. Mkhize’s evidence, as supported by medical examination in terms of Exhibit D 1 – D 4.
[39] Worse still, 1st defendant was said to be nowhere in or near the interrogation room on the 15th August, 2012. This evidence was tendered by the plaintiff’s own witness, Duma Mngometulu. This piece of evidence was corroborated by 1st defendant and the officers who were interrogating plaintiff on 15th August, 2012. Then there is Exhibit 2 which was produced at plaintiff’s instance. This is the statement recorded by plaintiff on 15th August, 2012 following his interrogation. His Counsel submitted that it did not detract from the defendant’s version namely that plaintiff explained his side of the story in relation to an indecent assault complaint. It was never disputed to the defendant’s witnesses that plaintiff appended his signature on Exhibit 2.
[40] In his written submission, the plaintiff protested 1st defendant’s failure to plead an alibi. He urges the court to consider the alibi, as an afterthought. How, when the plaintiff’s own witness under Duma Mngometulu testified in that respect? The analysis is that plaintiff’s version changed. The 1st defendant’s witnesses merely corroborated the new version by plaintiff. The plaintiff in his submission lamented the failure by defendant to bring as a witness someone who was with him as a witness to verify that 1st defendant was with him in the evening of the interrogation. With due respect such witness was unnecessary after the version that 1st defendant was not at the interrogation room let alone in the police station was adduced not by 1st defendant or his witnesses but by plaintiff’s own witness, Duma Mngometulu.
[41] In the final analysis, the following orders are entered:
Plaintiff’s cause of action is dismissed.
41.2 Plaintiff is ordered to pay defendants costs of suit.
For Plaintiff : S. Masuku of Masuku Nsibande Attorneys
For Defendant : M. Vilakati of the Attorney General
1A page 4 para 6 and 7
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