High Court of Swaziland

Access to post mortem report and photographs

Civ. Case No. 2853/96

In the matter between:

Andile Nkosi Plaintiff

vs

The Attorney General Defendant

The Commissioner of Police Defendant

The Government Pathologist Defendant

CORAM S.W. SAPIRE, ACJ

Judgment

(18/11/96)

This is an application brought urgently by the applicant in which she seeks relief in the following form.

1. She seeks an order that the matter not be placed on the normal motion court roll;

2. That it be heard as one of urgency ;

3. That it be heard in camera;

4. That the proceedings not be made publicly known until execution of the order has taken place.

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The applicant also seeks dispensation allowing her to make the application ex parte without service on the respondent.

The applicant brings the proceedings in her capacity as the mother and natural guardian of Zama Zenani Nkosi an infant born on the 7th September, 1994 out of wedlock from a relationship the applicant had with one Nhlanhla Ngomane.

Relief claimed is against the Commissioner of Police and as this is a Government Department the Attorney General is cited. The Third Respondent is the Government Police Pathologist of Police Headquarters, Usuthu Link Road Mbabane.

The application comes about in the following circumstances.

On the 14th of July 1996 the applicant received information from one of her daughter=s father=s friends that the said Nhlanhla Ngomane had been killed by the police on the previous night. The applicant has investigated the matter and has discovered that on the 13th of July, 1996 at about 01.00 the deceased was shot at by two Police Officers said to be Ndlovu and Mavuso at the Happy Valley Motel in Ezulwini. She has also discovered that after he had been shot he was taken by them still alive and placed into the boot of their motor vehicle and driven to Mbabane Police station. At the Mbabane Police the deceased was said to have been beaten up and tortured to death. The body was taken to Mbabane Government Hospital mortuary where it was kept until the 26th July, 1996.

The applicant=s attorneys are in possession of statements from witnesses that the said Ngomane was alive when he arrived at the Police station and that he was heard screaming while being tortured.

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The applicant was informed by staff at the Mbabane Government Hospital Mortuary on the 23rd July, 1996 that a postmortem was carried by the Government Police Pathologist and in no likelihood such report is still in the possession of either the second or third respondent.

On the 18th July 1996 the authorities were requested to furnish the applicant with a copy of the postmortem report on the death of the deceased. A letter to this effect was sent by the applicant=s attorneys and a copy is attached to the founding affidavit.

The request was declined orally and the letter was not replied to.

On the 23rd July 1996 in view of the official attitude and as there is only one pathologist in the country the applicant instructed her attorneys to request the Medical Superintendent to allow pictures to be taken of the deceased body to facilitate the holding

of an inquest into his death. This request was also turned down by the Medical Superintendent on the basis that the matter was a Police matter. The applicant believes as it is commonly done the police have taken pictures of the deceased person and it would be surprising indeed if respondents claim that none were taken, was correct.

The deceased during his life time had a legal duty to maintain and did in fact maintain his minor child Zama Zenani Nkosi at the rate of at least E700.00 per month.

The applicant intends to institute proceedings against the Government of Swaziland for loss of support on behalf of the deceased=s daughter arising from the killing of the deceased by the Police. A demand as required in terms of Section 2 of the limitation of actions against Government Act number 21 of 1972 has been made.

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Clearly the postmortem report and any photographs which there may, be are vital evidence in the case which the applicant intends bringing on behalf of her minor daughter. She not surprisingly in view of the secretive & non-cooperative stance of the authorities entertains a belief that with regard to the postmortem report and such pictures that may have been taken, may be hidden, destroyed or in some other way tampered with in order to advance the defendant=s case and to cover up the wrongful killing of the deceased.

The applicant has expressed the fear that if notice is of these proceedings were given to the respondents or if the application were made public the documents and photographs would be tampered with, and evidence vital to her case, withheld, concealed or destroyed .

Our law recognises the right of an intending plaintiff in these circumstances to protect her interests and to secure the evidence which would be important in the case which is to be brought.

In this connection reference should be heard to the case:

SHOBA v OFFICER COMMANDING, TEMPORARY POLICE CAMP, WAGENDRIFT DAM, AND ANOTHER; MAPHANGA v OFFICER COMMANDING, SOUTH AFRICAN POLICE MURDER AND ROBBERY UNIT, PIETERMARITZBURG, AND OTHERS 1995 (4) SA 1(A)

In this case the requirements for such an order as contemplated in this application are set out and I am satisfied that the applicant in this case appears to comply with all the requirements. Accordingly an order is made in the following terms:

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1. The matter is enrolled as one of urgency and will not be placed on the ordinary Court Roll.

2. The application has been heard in camera and the proceedings are not going to be made public until execution of the order made in terms hereof.

3. The matter is heard as ex parte application and if the respondents or any of them wish to have the order set aside they may do so after complying therewith on 48 hours notice to the applicant to be served at the offices of her attorney.

4. The respondents or any of them or any person under their command who has in his or her possession the postmortem report relating to the death of one Nhlanhla Ngomane on 13th July, 1996 is directed to deliver such a written report to the Registrar of the above Honourable Court and a copy thereof to the applicant=s attorney forthwith.

5. The respondents or any person under their command who has in his possession photographs of the deceased person taken by the police immediately after his death be directed to deliver to the Registrar of the Honourable Court forthwith and to inform the Registrar and the applicant=s attorneys the name, force number and rank of the Police Officer who took the photographs referred to in the preceding paragraph.

6. The costs of this application will be costs in the Court.

S.W. SAPIRE

ACTING CHIEF JUSTICE

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