CJ condemns rising cases of police brutality


. . . As visually impaired man wins assault case against cops
Chief Justice Sakoane Sakoane has condemned the escalating incidences of police brutality, calling for culprits to be prosecuted to safeguard the rule of law. The judge directed the call to: Commissioner of Police, Holomo Molibeli; Director of Public Prosecutions, Advocate Hlalefang Motinyane; and, the Attorney General Advocate Rapelang Motsieloa. He said the three bear the constitutional duty to protect the rule of law by investigating, prosecuting and not defending the indefensible. Sakoane was delivering judgment in the case between visually impaired Kabelo Makhoabenyane of Mafeteng and Police Commissioner Molibeli after he was assaulted by the Mafteng police during an operation.
The Officer Commanding Mafeteng Police and the Attorney General were second and third Respondent, respectively. Justice Sakoane awarded Makhoabenyane M150 000 in general damages after he claimed for damages for assault by the police at his home. He was neither suspected of committing any offence nor charged. The assault was immediately reported to superiors but no action was taken, leading to Sakoane highlighting the core duty of the Commissioner of Police, Director of Public Prosecutions and the Attorney General being, in the main, to protect the rule of law.
He noted with concern systemic and institutional weaknesses affecting effective investigation and prosecution of cases of police brutality and said it is imperative to reform the police service in order to curb police brutality. According to papers before court, on December 15, 2015, Makhoabenyane was rudely awoken from his sleep at dawn and assaulted. He reported the assault on the same day to the Officer Commanding Mafeteng Police and was given a medical form in which the doctor recorded the injuries.
But, according to Justice Sakoane, nothing seems to have been done to charge and prosecute the responsible police officers since. Makhoabenyane claimed damages for pain, shock and suffering to the tune of M350 000, contumelia (humiliation) at M149 980 medical expenses at M20. In addition, he claimed payment of interest at the rate of 12 percent per annum calculated from the date of issuance of summons plus costs of suit.
In his evidence in court, Makhoabenyane said on the day in question he and his wife were asleep in their house when the police arrived at around 4:15 in the morning. They knocked and ordered him to open the door. He asked them how he could be sure that they were indeed police officers. They then kicked the door, opened it, entered and pulled him outside and threw him to the ground, as they kicked and beat him with a stick. He was made to roll for about 15 metres while kicking and beating him.
He said he felt pain and suffered humiliation, with the pain felt mostly at the elbows, ligaments, ribs and on the back. His right hand is still numb. After a short while the wife came out of the house and handed him his walking stick as he has a visual disability. The police asked him how he could have a visual disability when he was so talkative.
He had not done anything to the police at this point to warrant the assault. Under cross-examination, Makhoabenyane disagreed with the suggestion that when he came out of the house, he was wielding a stick which the police forcefully took away and it is during that episode that he fell to the ground, as claimed by the police His claims were corroborated by his neighbour, Lekhetho ’Makhongoana, who also gave testimony in court. Police Constable Seboka Tsanyane testified as the only witness for the defendants. He said on the day in question, he was part of the police contingent that conducted an operation at the Makhoabenyane’s village. The contingent consisted of members of the Special Operations Unit and the ordinary unit.
On arrival at the village, they were divided into two groups. One group went into the village to arrest suspects while the other group remained on the outskirts of the village. He was in the group that entered the village.
After entering the village, the group went to the home of a suspect by the name of Khang where they knocked and the suspect’s mother opened. They asked for the suspect’s whereabouts and the mother said she had last seen him on the afternoon of the previous day. They then proceeded to a nearby house at around 5:00 and 6:00 in the morning where they knocked and a man (who they later knew as Makhoabenyane) responded. They introduced themselves as police officers and asked him to come out to help them.
That person asked how he could trust that they are police officers and they asked him to go to a window next to which they could stand so that he could see them as they were in uniform. The person said he was putting on clothes and would come out.
He took some time to come out, according to Tsanyane, and they then asked him whether he was still coming out and he angrily asked whether he should come out naked. Tsanyane said he heard this person utter the words “bring my stick”.
He says he told the person to leave the stick behind but he did not say anything. The person then came out holding a stick.
He continued that he grabbed it to put it down but the person held unto it. At that point his colleague named Noka came to his assistance to take away the stick. It is during this encounter that the person fell down.
He claimed that the man was not beaten with sticks or kicked. After the man fell down, an elderly couple came from a house nearby and told them that the person has a visual disability. On hearing this they made a determination that he could not be of any help to them. Justice Sakoane found that Makhoabenyane was not a suspect, and asked why then did the police go to his home and behave in the manner they did?
The police argued that they are empowered by the provisions of the Criminal Procedure and Evidence Act No 7 of 1981 to order any person above the age of 16 to assist them in investigating crimes.
The judge agreed, but warned, however that the Section does not authorise the police to require assistance by use of force and assault. Their legal recourse is to bring a charge in terms of Sub-section (2) of the same law if a private person refuses or fails, without reasonable excuse, to render assistance.
He noted that the police approached Makhoabenyane in an aggressive manner, shouting and ordering him to open the door of the house as if he was the one about to be arrested. When he hesitated, they forcefully entered his house, pulled him out kicking and beating him with a stick. They treated him like a suspect resisting arrest.
The concession that he was not a suspect makes the Defendants’ case worse, in that the police unjustifiably invaded his constitutional right to respect for private and family life guaranteed in Section 11 of the Constitution.
The sanctity of a person’s home is jealously protected by the Constitution.
“It is subject to the highest expectation of privacy reflecting the old adage that the home is a person’s castle. The law does not allow police officers to enter the house without permission. “The Criminal Procedure and Evidence Act of 1981 carefully delineates the narrow circumstances under which the police can forcefully enter and the procedure to follow when entering for the purpose of making an arrest.

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