NDOU J: The
plaintiff is a legal practitioner practising with Messrs Calderwood, Bryce
Hendrie and Partners Legal Practitioners in Bulawayo. He has sued the defendants for payment of
damages for assault, injuria and impairment of dignity following the
defendants' actions of forcibly and under injurious circumstances removing or
causing to the removal of the plaintiff from Bulawayo Central Police Station on
14 February 2003. The background facts are the following. It is common cause that there was a
demonstration on 14 February 2003.
Several persons were arrested for participating in the demonstration
which the police regarded as unlawful.
Several legal practitioners, including the plaintiff, attended at
Bulawayo Central Police Station in order to assist their arrested clients. The said legal practitioners were denied
access to their clients by inter alia, the 1st
defendant. The legal practitioners'
reaction was to refuse to leave the police station before they saw their
clients. They insisted that they have
access to their clients. The 1st
defendant ordered that the legal practitioners be removed from the police
station. This order was carried out
resulting in the actions that form the subject matter of these proceedings. There is a dispute as regards the manner of
the removal of the plaintiff from the police station and such a factual dispute
can only be resolved by considering the evidence of the witnesses in turn.
Ndabezinhle Mazibuko
He testified that he was duly
admitted as a legal practitioner in 1994 and he is a partner at the
above-mentioned law firm. Regarding the
events of 14 February 2003 he said he attended at Bulawayo Central Police
Station to take instructions from his client who had been arrested. At the station he was referred to the 1st
defendant whom it was advised was the man in charge. The 1st defendant was in the
courtyard, and this is where his clients and other arrestees were. The plaintiff said he duly identified himself
to the 1st defendant as a legal practitioner but the 1st
defendant, who for some reason appeared agitated, ordered him to immediately
leave the police station. He was also
told why he could not have access to the clients. At some point, the plaintiff was joined by
other legal practitioners namely, Ms Perpetual Dube, Kucaca Phulu and Mr
Mkwananzi. They had all come to the
police station to take instructions from their respective clients. He and the other legal practitioners did not
leave as demanded by the 1st defendant. They insisted that they be allowed access to
their clients as 1st defendant could not give a valid and legal
reason why they could not, while the 1st defendant stood resolute in
denying them access without explaining why.
The 1st defendant then started pushing him trying to get him
to leave and when he failed to move him, he enlisted the help of his
subordinates. The 1st
defendant instructed members of the Police Reaction Group ("PRG") more commonly
known as "Riot Police", to remove the plaintiff and his colleagues from the
police station. He and the other legal
practitioners were pushed, shoved, poked with baton sticks and had explicit
invectives unleashed on them. The
plaintiff said that this assault started from the courtyard, continued into the
charge office and stopped in the street outside the police station. He said he was assaulted in full view of his
clients, other police officers and members of the public, some of whom were
going about their ordinary business and had to stop and watch the unfolding
spectacle of the legal practitioners being assaulted and insulted. The plaintiff said he was deeply humiliated
and thus suffered a knock on his fair and impeccable reputation and
dignity. For good measure, the plaintiff
stated that the 1st defendant and his subordinates were acting in
the course and scope of their employment and as such the 2nd and 3rd
defendants were liable. I am satisfied
that this witness gave his testimony very well.
He did not seek to exaggerate the unlawful actions of the 1st
defendants and his subordinates.
Kucaca Ivumile Phulu
He said he is a legal practitioner
and partner at Coghlan and Welsh Legal Practitioners. He has been a legal practitioners of six
years experience. As alluded to above,
he is one of the legal practitioners who was present. His testimony is corroborative of that of the
plaintiff. Like the previous witness, he
gave his evidence in a coherent and logical manner. His demeanor was not shaken under
cross-examination. The long and short of
it is that I find that these two witnesses gave credible testimony.
On
the other hand, three witnesses were called in support of the defendants'
case. I will also consider their
testimony in turn.
Donald
Sithole: the 1st defendant
He
appeared on his own behalf and on behalf of the two other defendants. He denies that he was in charge of the
arrestees on the day in question. He is
a Chief Inspector and not Chief Superintendent as cited. [This error was subsequently rectified]. He testified that at all material times he
was in his office and at no time did he venture into the courtyard. He further said that at all material times
the identity of the plaintiff and his colleagues as legal practitioners was not
in issue. He disputed that he instructed
his subordinates to assault the legal practitioners and that he personally came
to know of the assault on the following day.
This witness was clearly untruthful.
As will appear hereinunder, he deliberately tries to remove himself from
the scene.
Nhamo Makhiwa
His evidence was brief and material
in one respect. He said that on the
material day, as he was on his way to the canteen, whose door leads out to the
courtyard, the 1st defendant asked him to summon four(4) officers
from PRG. He obliged. I am satisfied that he is a truthful witness.
Maxwell Guvava
He is a member of the PRG. He said that he was sitting with his
colleagues when the 1st defendant instructed them to "drive" out the
plaintiff and his colleagues. He said
that acting on 1st defendant's instructions they did not assault the
plaintiff and his colleagues but rather, they used their baton sticks as a
barricade, and this was what caused the legal practitioners to leave the police
station. What appears clearly in the
defendants' case are irreconcilable contradictions of a material nature. As illustrated above, whereas the 1st
defendant disputed ever being in the courtyard, the other witnesses placed him
at the scene. Whereas the 1st
defendant disputed that he was in charge of the arrestees the evidence adduced
from the other defendants' other two witnesses is indirectly corroborative of
the plaintiff's case that the 1st defendant was in charge on that
day. Further, whereas, the 1st
defendant said that he did not know how the plaintiff and the other legal
practitioners left the police station, the last witness said that he was
present when the plaintiff and his colleagues were driven out, in fact he said
the 1st defendant is the one who issued instructions that they be
driven out.
Interestingly, the evidence of the 1st
defendant was in material respects inconsistent with the defendants' plea and
synopsis of evidence. The defendants'
counsel did not seek to reconcile the evidence given by the 1st
defendant with the defendants' plea nor their synopsis of evidence. From the credible evidence, the plaintiff's
feelings of dignity and self-respect have been intentionally violated by the
conduct of the 1st defendant.
He was violently driven out of the police station to the street. This, as alluded to above, was done within
full view of his clients, other arrestees, police officers and other
onlookers. There was no need for the 1st
defendant to act in this fashion.
Injuria is committed when a person, without cause, intentionally
violates another's dignity. A person's
dignity includes his feelings of dignity or self-respect. These feelings may be violated by any conduct
that actually insults a person - Law of Damages (1st Ed)
(Juta) (1993) at 100. In light of the
above, I find that the delict complained of has been established by the
evidence led on behalf of the plaintiff.
Coming to question of the quantum of
damages, I hold the view that this is a proper case for an award of exemplary
damages. The plaintiff has established
that he is a man of high standing in the society. He is a legal practitioner with more than ten
(10) years experience and practising in the city of Bulawayo where this delict
occurred. He is considerably well known
and has a fair reputation. Indeed in his
testimony, the plaintiff stated that some people who witnessed this incident
called him later on to find out why he had been treated in such a manner. Further, he stated that he does a
considerable amount of criminal work and is thus known to most police officers. This conduct is likely to affect his working
relationship with police officers and he was gravely humiliated in front of
them. The fact that the plaintiff is a
legal practitioner and that the delict was directed against him in his capacity
as a professional is grave warranting heavy damages - Black & Ors v Joseph
1931 AD 132 at 146.
Accordingly, judgment is entered for
the plaintiff against the defendants jointly and severally in the sum of $1 000
000 000,00 with interest thereon calculated at the prescribed rate from 14
February 2003 to date of full payment.
The defendants are ordered to pay costs of this action jointly and
severally at the scale of legal practitioner and client.
Calderwood, Bryce Hendrie & Partners, plaintiff's legal practitioners
Messrs Dube & Partners, defendants' legal practitioners