About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Western Cape High Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Western Cape High Court, Cape Town
>>
2016
>>
[2016] ZAWCHC 37
|

|

Taylor v Minister of Safety and Security (5356/10) [2016] ZAWCHC 37 (17 February 2016)

IN
THE HIGH COURT OF SOUTH AFRICA
WESTERN
CAPE DIVISION, CAPE TOWN
CASE
NO: 5356/10
In
the matter between:
STEWART
THEODORE
TAYLOR
...................................................................................
PLAINTIFF
And
MINISTER
OF SAFETY AND
SECURITY
...................................................................
DEFENDANT
JUDGMENT
DELIVERED
ON 17 FEBRUARY 2016
GAMBLE,
J:
INTRODUCTION
[1]
Shortly before midday on Tuesday 28
th
October 2008 the plaintiff was arrested at a shopping centre in Table
View, Cape Town by members of the South African Police Services

stationed at Table View. During the arrest force was used on the
plaintiff and he was thereafter detained in the police cells at
Table
View for two nights before he appeared in the magistrates’
court, Cape Town on the morning of 30
th
October 2008. The plaintiff alleges that the arrest and the
subsequent detention were both unlawful and further, that the force

that was directed towards him was excessive in relation to the
purported arrest. He claims that he sustained injuries during the

arrest and seeks damages from the defendant (hereinafter collectively
referred to as “the police”) in the sum of R450
000 in
respect of wrongful arrest, assault and wrongful detention.
[2]
The police admit the arrest and subsequent detention and contend that
both were lawful. The police further admit that force
was applied to
the plaintiff during his arrest but contend that only such force as
was necessary to bring the plaintiff under control
was applied.
Accordingly the police contend that they behaved lawfully throughout
[3]
In light of the admissions made in the plea it is common cause that
the police attracted the onus of establishing, on a balance
of
probabilities, that the arrest and consequent detention were lawful
and that the force used during the arrest of the plaintiff
was
justified.
BACKGROUND
FACTS
[4]
During October 2008 the plaintiff lived with his partner, Belinda
Friedland, in a house owned by the plaintiff’s father
at 165
Blaauwberg Road, Table View. FrIedland has a daughter called Jade and
a sister called Bronwen de Pontes. On the night of
Friday, 24 October
2008 Jade celebrated her 17
th
birthday with a party at the house at number 165. Also present at the
party, besides Friedland, were de Pontes and the plaintiff
as well as
a number of teenage partygoers.
[5]
Sometime towards midnight an incident occurred in which an uninvited
teenager stabbed one of the partygoers just outside of
the gate of
number 165. In the ensuing melee de Pontes, who was on the pavement
trying to shepherd the partygoers not involved
in the fight back into
the premises, tried to force open the gate. She could not do so
because the plaintiff was on the inside
trying to keep the gate
closed to avoid unwanted elements entering the premises. Eventually
the gate was opened and the plaintiff
and de Pontes became embroiled
in a violent struggle. In evidence before the court de Pontes
described the incident in fairly graphic
terms and said that the
plaintiff punched her repeatedly, threw her to the ground and tore
her blouse open. She said that he was
intoxicated from the use of
narcotics and behaved wildly, both during the attack on her and after
he went into the house, where
he allegedly destroyed furniture,
fittings and the like. While admitting that he was involved in a
scuffle with de Pontes, the
plaintiff’s version as to what
happened is different - he suggested that his behaviour was far more
controlled and that he
was not under the influence of narcotics - but
the materiality of these disputes is not relevant to these
proceedings.
[6]
De Pontes, who stays in the neighbouring suburb of Parklands,
reported the matter to the Parklands police on the morning of

Saturday, 25 October 2008 and having done so was issued with the
so-called J 88 form which she took along with her for completion
by
her general practitioner during an examination of her injuries. The
form (on which a medical practitioner usually records the
nature and
extent of injuries on a person after examination) is issued by the
police. In the present case the entires thereon confirm
an assault
consistent with that described by de Pontes. The assault was also
confirmed in evidence by Jade who corroborated her
aunt’s
evidence in material respects.
[7]
Evidently Parklands is a satellite police station of Table View and
accordingly a case docket was opened by the police under
reference
number Table View CAS 636/10/2008. During the course of the morning
of Tuesday, 28 October 2008 a police constable (now
a sergeant) by
name of Henfred Claassen was told by his commanding officer at Table
View to go and arrest the plaintiff on a charge
of assault with
intent to commit grievous bodily harm. This related to the events of
the previous Friday night at number 165. Claassen
took a police
vehicle and collected the complainant at her home whereafter the 2 of
them then drove to number 165 so that de Pontes
could point out the
plaintiff to him. Upon arrival at the house Claassen was told by
Friedland that the plaintiff was not home:
he had apparently gone to
his doctor to collect a prescription for medication that he was
taking for rehabilitation of a drug problem.
It was common cause that
at the time the plaintiff was a recovering heroin addict.
[8]
Claassen then drove with de Pontes to a shopping centre in Table View
which the parties referred to as “the Pick ‘n
Pay
Centre”. The court was informed that the police station was
just around the corner from the shopping centre and it seems
that the
plaintiff’s doctor’s surgery was in the centre. As
Claassen and de Pontes walked into the shopping centre
the plaintiff
passed them on his way out. The complainant identified him to
Claassen who turned around to confront the plaintiff.
At that stage
the plaintiff was standing outside the entrance smoking a cigarette.
What happened next is in dispute. On the police
version Claassen
informed the plaintiff that he had come to arrest him for the assault
on de Pontes and asked the plaintiff to
put out his cigarette. Having
repeated his request twice, and the plaintiff having refused to
extinguish his cigarette, Claassen
grabbed the cigarette from the
plaintiff’s mouth. As he did so, the plaintiff lashed out at
Claassen striking him on the
upper body.
[9]
A scuffle broke out involving the plaintiff, Claassen and two other
police officers who were in attendance to provide backup.
Eventually,
the plaintiff was brought under control, handcuffed and put in the
back of a police van which was driven on the day
by one Bjorn Africa,
then a constable the Table View police station.
[10]
Africa (who by then had left police force) gave evidence that after
returning to his vehicle he had received an emergency radio
call to
attend to an alleged housebreaking in progress nearby. With the
plaintiff in the back of his van, and no doubt with blue
lights
flashing and sirens wailing, he hastened to the scene of the alleged
housebreaking. Upon arrival there, said Africa, he
discovered that
matters were under the control of another police contingent that had
arrived shortly before him. Africa claimed
that at that stage he did
not know that the plaintiff was in the back of his patrol van but
when he heard someone moving around
in the back he climbed out to
look and, to his surprise, found the plaintiff there. He turned his
vehicle around and headed back
to the police station where the
plaintiff was booked in.
[11]
The plaintiff’s version, as I have said, was different. He said
that at the shopping centre Claassen came up to him and
informed him
that he wished to arrest him. The plaintiff says that he told
Claassen he needed to inform his father of this development,
and
walked to where Mr Taylor snr was talking to someone at an estate
agency close to the entrance to the shopping centre. He said
that
Claassen followed him into the office, grabbed him by the arm,
twisting it behind his back in the so-called “Half Nelson”

grip and frogmarched him outside. The plaintiff said that he was then
assaulted by a constable Maharaj who was a passenger in Africa’s

vehicle. The plaintiff claimed that he had been punched, thrown to
the ground and kicked and was also sprayed in the face with
pepper
spray.
[12]
The plaintiff said that after being loaded into the back of a police
van Africa set off at high speed through the side streets
of Table
View. The van was brought to a sudden halt and Africa climbed out. He
opened the rear of the van, grabbed hold of the
plaintiff and began
assaulting him. The plaintiff said that he was berated by Africa for
having assaulted a woman and was, as it
were, given a lesson in that
regard by Africa. The plaintiff was thereafter taken to the police
station where he was booked in
and placed in the cells. Two days
later he appeared in the Magistrate’s Court, Cape Town, where
he was released on bail.
The plaintiff was later charged in the
district court with the assault of de Pontes. The case against the
plaintiff seems to have
dragged on interminably and was ultimately
unresolved because the magistrate hearing the matter resigned before
judgment had been
delivered, no fresh prosecution having been
instituted thereafter.
WAS
THE ARREST LAWFUL ?
[13]
I turn then to consider whether the arrest of the plaintiff by
Claassen was lawful. Section 40 of the Criminal Procedure Act,
51 of
1977, (‘the CPA”) governs the arrest of persons for
purposes of securing their attendance at court for prosecution
under
the CPA where no warrant of arrest is required. Generally, that
section permits such an arrest to take place where any offence
is
committed in the presence of the arresting officer (who must be a
“peace officer” as defined under the CPA), or
in
circumstances where the arresting officer holds a reasonable
suspicion that a specific set of circumstances exists which render

that person liable to prosecution for a specified offence.
[14]
As our courts have often said, application of the section requires
the balancing of competing interests. In
Glisson
[1]
Jones J (with Pickering J concurring) discussed the relevant
authorities and offered the following guidance –
“
[6]
I am aware of the need in cases such as this to find a balance
between the protection of the individual liberty on the one hand
and
avoidance of unnecessary restriction on the police in the execution
of their duties on the other. Where the two are evenly
balanced, the
scales in a modern constitutional state will fall on the side of
individual liberty. The police should not lightly
make arrests
without a warrant. At times - and I think this is such a case - it
may be difficult for a policeman to know where
to draw the line. If
he does not witness criminal conduct himself, he should always be
alive to the need for a warrant, which,
he knows, would neither be
sought nor granted except where there is a sworn statement of the
commission of criminal conduct.”
[15]
In
Sekhoto
[2]
Harms
DP, while pointing out that it was trite that the onus rested on the
police to justify an arrest, reviewed in detail a number
of other
issues relevant to an arrest by a peace officer in the constitutional
era. The Learned Deputy President set out the 4
jurisdictional facts
required to be established by the police for a lawful arrest for the
offence allegedly committed in that matter
[3]
as follows:
“
(T)he
jurisdictional facts for a s 40(1)(b) defence are that (i) the
arrestor must be a peace officer; (ii) the arrestor must entertain
a
suspicion; (iii) the suspicion must be that the suspect (the
arrestee) committed an offence referred to in Schedule 1; and (iv)

the suspicion must rest on reasonable grounds. For purposes of para
(g), the suspicion must be that the arrestee was or is in unlawful

possession of stock or produce as defined in any law relating to the
theft of stock or produce. The jurisdictional facts for the
other
paragraphs of s 40(1) differ in some respects…..”
The
court expressly dismissed a fifth criterion which it said had emerged
over the previous number of years in various Provincial
Divisions to
the effect that the import of the Constitution in such matters
rendered it incumbent on the arresting officer to consider
whether
the proposed arrest as such was necessary to bring a suspect before
the court or whether there were other less invasive
options
available, such as the issuing of a notice to appear.
[16]
In his particulars of claim issued in March 2010 the plaintiff
alleged, firstly an arrest at the shopping centre on a charge
of
“
assault
”. He then went on to allege an assault
during the arrest, a further assault en route to the police station,
a detention which
exceded the stipulated statutory maximum of 48
hours and a violation of his right to medical and legal assistance
while in custody.
These factual allegations were followed by a
generalised allegation of wrongfulness:
“
11.
The conduct of the members of SAPS as set out above was unlawful
and/or wrongful.”
[17]
In the paragraph dealing with the categorisation of his damages
totalling R450 000 the plaintiff claimed R40 000 for “
unlawful
detention and medical costs”,
R20 000 for “
the
assault”
and R390 000 for “
general damages
for pain, suffering, shock, psychological and emotional damage and
loss of earnings.”
It will be observed that there was no
claim for wrongful arrest
per se.
[18]
The police filed their initial plea in July 2010 and admitted the
arrest but pointed out that it was in relation to charges
of “
Assault
GBH” and “Assault common”.
In para 5 thereof
the police version of the circumstances surrounding the arrest and
subsequent incarceration are detailed, and
in response to the
allegations in the plaintiff’s para 11, the police plead a
denial of “
each allegation in this paragraph”
and
a repetition of “
the contents of paragraph 5 above.”
[19]
In October 2010 the plaintiff filed a request for trial particulars
in which the following questions and answers thereto are
relevant:
“
1.1.
Who is it alleged was assaulted by the Plaintiff in respect of this
charge of assault GBH?”
Defendants
reply: “
Ms Bronwyn(sic) de
Pontes.”
“
1.2.
Who is it alleged was assaulted by the Plaintiff in respect of  the
charge of assault common?
Defendant’s
reply: “
Constable Henfred Danville
Claassen”
“
1.3
Did the arresting officer personally witness the assault?”
Defendant’s
reply: “
The arresting officer did not personally observe the
assault GBH but personally observed and experienced the assault
common.”
“
1.4
If not what was the source and content of the arresting officer’s
knowledge of both assaults?”
Defendant’s
reply: “
4.1. The source of the
arresting officer’s knowledge of the assault GBH was the
complainant, Ms De Pontes, who told him that:
the Plaintiff had
assaulted her; she was very scared; the Plaintiff had further
threatened her; and she feared for her life. Ms
De Pontes also told
the arresting officer that she had laid a charge of assault GBH
against the Plaintiff. The arresting officer
further observed that Ms
de Pontes had bruises on her face.
4.2.
The arresting officer’s knowledge of the assault common was
personal in that the plaintiff assaulted him.”
“
1.5.
Was the arrest with or without a warrant?
Defendant’s
reply: “
Without a warrant.”
“
1.6
If arrest (sic) was without a warrant in term (sic) of which section
of the Criminal Procedure Act 51 of 1977 (as amended) was
defendant
arrested?”
Defendant’s
reply: “
Section 40(1)(a)
,(j) and (q) of the
Criminal
Procedure Act, 51 of 1977
…”
No
detail is given of any of the facts relied upon, or the requisite
suspicion harboured, for these grounds of justification.
[20]
In June 2012 the plaintiff made certain minor amendments to his
particulars of claim relating to his incarceration at Table
View
police station. In regard to the claim for damages, the amendment was
more significant. The claim for general damages, still
in an amount
of R390 000, was now more accurately described as follows:
“
12.1.1
General damages in respect of deprivation of plaintiff’s
liberty, security of person and privacy, injury to his reputation
and
dignitas, discomfort, psychological trauma towards plaintiff and his
family, stress and contumelia.
12.1.2
The aforesaid amount of general damages is an estimation and it is
not practicable to furnish further particulars in regard
thereto.”
From
this amendment it is clear that the plaintiff included as a component
of his claim, damages for wrongful arrest. In any event,
if regard be
had to the defendant’s trial particulars it is clear that the
police already understood the claim to include
this component.
[21]
In August 2012, the police filed a plea containing consequential
amendments which are not material at this stage. That plea
introduced
an alternate ground of defence to the allegations that the police
assaulted the plaintiff by contending that such force
as was used was
necessary and reasonable in the circumstances. The general denial
made in para 11 of the plea (as set out above)
was repeated in this
pleading.
[22]
In May 2013 the plaintiff effected further amendments to his
particulars of claim by introducing the following allegations
which
pertinently set out a claim for wrongful arrest:
“
4.
The arrest was unlawful in that the arresting officer did not have
and did not produce any warrant authorising the arrest and
he was not
present when, and at the place where, the assault which the plaintiff
was alleged to have committed took place.
5.
The arresting officer had no reason at the time when the arrest was
effected to reasonably suspect or to form an opinion that
the
plaintiff was committing or had committed an offence at the place and
at the time when the arrest was made.”
[23]
There was some further tinkering with the formulation of the damages
claim, in which the sum of R450 000 was said to comprise
the
following –
“
14.1
R40 000 for the unlawful arrest and medical costs;
14.2
R20 000 for the assault;
14.3
R390 000 for general damages for pain, suffering, shock,
psychological and emotional damage and loss of earnings.”
For
the rest the material allegations remained the same.
[24]
A final amended plea was filed in September 2013. In that pleading
the defendant dealt with the allegations made in para’
s 4
and
5
of the further amended particulars of claim as follows:
“
4.1
Save to admit that the arresting officer did not have and did not
produce any warrant authorising the arrest, Defendant denies
that the
arrest was unlawful and pleads that both the arrest and subsequent
detention were lawful in terms of section 40 (1)(a),
(j) and (q) of
the Criminal Procedure Act, 51 of 1977 (“the CPA”) in
that:
4.1.1
the arresting officer, Mr Henfred Claassen (“Claassen”),
was a peace officer as defined in the CPA;
4.1.2
plaintiff committed the offence of assault on Claassen on 28 October
2008 at the Pick ‘n Pay Centre, Table View, in
other words - in
the presence of the peace officer;
4.1.3
plaintiff wilfully obstructed Claassen and the other police officers
in the execution of their duties;
4.1.4
the plaintiff was reasonably suspected of having committed an act of
domestic violence as contemplated by s1 of the Domestic
Violence Act 1988, which constitutes an offence
in respect of which violence is an element in that plaintiff on 24
October 2008
assaulted Ms Bronwen de Pontes (‘De Pontes’)
for which she had to receive medical treatment. Plaintiff had
thereafter
threatened de Pontes, her sister and her two children (of
whom plaintiff is the father) with violence.”
[25]
It is not in dispute that Claassen required a warrant if he wished to
arrest the plaintiff for assaulting de Pontes on the
Friday night. It
was common cause that the assault on de Pontes did not occur in the
presence of the sergeant and so the police
could not rely on section
40(1)(a) of the CPA to justify the arrest for that assault. Nor could
the police rely on section 40(1)
(b) as it was conceded in argument
that during the alleged assault on de Pontes the plaintiff did not
inflict any dangerous wound
on her.
[4]
[26]
The reliance by the police on section 40(1)(j)
[5]
as further justifying an arrest without a warrant is based on the
fact that the plaintiff became involved in a scuffle with Claassen

and other policemen immediately after his arrest in respect of the de
Ponte’s complaint. That ground of justification is
only
available to the police if they can show that the initial arrest of
Taylor was lawful. If the arrest was not lawful the plaintiff
was
fully within his rights, and entitled, to resist arrest or even take
flight if he so wished, and that would have entitled him
to use such
reasonable force
against
the
police as may have been reasonable to secure his departure from the
scene.This ground, too, was abandoned in argument.
[27]
The third ground of justification relied upon in the defendant’s
plea as finally amended (S 40(1)(q)) raises somewhat
of a conundrum.
Claassen was instructed by his superior to go and arrest the
plaintiff for the Friday night assault on de Pontes,
and the latter
confirmed in her testimony that she accompanied Claassen to number
165 so that she could point out the plaintiff.
The evidence
thus unequivocally shows that when he left on his mission that
Tuesday morning, Claassen was ordered to arrest the
plaintiff without
any mention being made of the necessity to first obtain a warrant. At
that stage there had been no mention either
to the police of an
alleged incident of domestic violence at number 165 earlier that day.
It follows that Claassen went to number
165 to effect an arrest in
respect of the attack on de Pontes without a warrant – an
arrest that was therefore unlawful from
its inception.
[28]
When Claassen left number 165 on the Tuesday morning he went in
search of the plaintiff at the shopping centre, still accompanied
by
de Pontes who confirmed in her evidence that when they headed there
she was under the impression that Claassen still intended
to arrest
the plaintiff for the Friday night assault and for that purpose she
was required to accompany him further to do the necessary
pointing
out. And, when she and Claassen walked past the plaintiff at the
shopping centre, de Pontes said that she pointed him
out to the
constable who then walked up to the plaintiff to effect the arrest.
De Pontes testified that she understood that the
plaintiff was being
arrested in relation to the Friday night assault, as did Africa who
was close by when Claassen performed the
arrest. The plaintiff said
that he was not told why he was being arrested but assumed that it
was in relation to the Friday night
incident since de Pontes had told
him she intended to lay a charge against him. On his version there
was no mention of domestic
violence by Claassen.
[29]
In his docket statement under CAS 636/10/2008 Africa also confirmed
that the arrest of the plaintiff was in respect of the
Friday night
assault and in evidence in court he went on to say that “minimum
force” was necessary to perform that
arrest. But, if one has
regard to para 4.1 of the defendant’s trial particulars and
para 4.1 of its finally amended plea,
both of which are set out
above, it is apparent that Claassen thought that the arrest of the
plaintiff without a warrant was justified
because the assault on de
Pontes on the Friday night constituted an act of domestic violence:
the response in para 4.1 of the plea
is expressly limited to the 24
th
October 2008.
[30]
The Friday night assault did most certainly not constitute an act of
domestic violence since the plaintiff and de Pontes were
never
involved in a domestic relationship, and counsel for the police, Ms
Erasmus, did not seek to advance any argument on that
score
either
[6]
. In fact, Ms Erasmus,
having abandoned any reliance on the grounds of justification
afforded by sections 40(1)(a) and (j), focussed
only on (q). The
factual basis for the argument was that Friedland had allegedly told
Claassen of the plaintiff’s abusive
conduct at the house on the
Tuesday morning. It was argued that this and this alone, entitled
Claassen to arrest the plaintiff
at the shopping centre without a
warrant.
[31]
Against that background the ground of justification put up by the
police under section 40(1)(q) implies that Claassen changed
his mind
at number 165 on the Tuesday morning after Friedland mentioned the
alleged events to him. If that was in fact so, it is
strange that he
did not mention anything in that regard to de Pontes particularly
since it was she who testified that she had told
Claassen while at
number 165 that there had been an altercation involving the plaintiff
and Friedland at the house earlier that
day.
[32]
Claassen testified that he knew nothing of the matter until orderd by
his superior on the Tuesday morning to collect de Pontes
. He could
see that she had been injured in the alleged assault on her
previously and in light of his concern that the plaintiff
might
respond violently, he asked for back-up. This arrived in the form of
Africa and the passenger on his vehicle, Maharaj, who
waited outside
number 165. Claassen said that when he arrived at the house he spoke
to Friedland who related to him an alleged
incident of assault on her
by the plaintiff earlier that day. On the strength of that, said
Claassen, he resolved to arrest the
plaintiff for the assault on the
Friday night on de Pontes as well for the potential threat which he
posed to Friedland arising
out of his conduct that very morning. He
did not testify about any complaint by Friedland which suggested that
she wished to lay
a charge of assault or malicious damage to property
against the plaintiff, or apply for a domestic violence interdict
arising out
of the alleged incident.
[33]
I should point out that the allegation of suspected violent conduct
by the plaintiff is not a recent fabrication: in a statement
made at
13h45 on that Tuesday for inclusion in the police docket in CAS
636/10/08 Claassen said the following –
“
3.
We then spoke to Bronwyn’s(sic) sister who informed us that the
suspect left after he again tried to assault her and damaged
(sic)
her property….
4.
We then went to look for him at the Table View Centre….
Bronwyn pointed out a white male who was busy smoking outside
the
centre. I then went up to him, introduced myself and informed him of
the case against him. I then informed him that I’m
gonna detain
him for the case against him as he started to become a threat to
Bronwyn and her family….’
Importantly,
Claassen’s contemporaneous statement did not allege an act of
violence on the part of the plaintiff which was
distinguishable from
the assault on de Pontes.
[34]
When he was detained by Claassen the plaintiff was charged on two
counts - the aggravated assault on de Pontes relating to
the events
of Friday night and a charge of common assault relating to his
alleged interference with Claassen during his arrest
at the shopping
centre, when Claassen arrested him on the former charge. The second
charge was logged with the Table View police
station under a separate
CAS number (704/10/08). There was no charge relating to any statutory
contravention of interfering with
the police in the execution of
their duties. The plaintiff was not charged with any contravention of
the
Domestic Violence Act, 1998
either, nor was he informed at the
time of his arrest of any such contravention or that he was suspected
of having committed any
act of domestic violence of which violence
was a component. Indeed, when the matter went to trial the only
charge the plaintiff
faced related to the attack on de Pontes on the
Friday night.
[35]
In answer to a question by the court at the end of his evidence
Claassen confirmed, yet again, that he when he went to number
165 on
the Tuesday morning his intention was to arrest the suspect for the
events of the Friday evening and said that if the suspect
had been at
the premises he would have arrested him there and then for that
alleged offence.
[36]
In the first version of the defendant’s plea no ground of
justification in terms of
section 40(1)
(q) was relied upon. It was
only mentioned in the reply to the request for trial particulars and
then without any contextual explanation.
In the absence of any
contemporaneous documentation or recordal suggesting that
consideration was given to an arrest at the time
under that
sub-section, and having regard to the late introduction of the
allegation into the pleadings, I am driven to conclude
that the
ground of justification is an afterthought arrived at when the case
was being prepared for court. All the evidence placed
before the
court goes the other way and suggests that Claassen’s intention
was to effect a warrantless arrest for an offence
which did not occur
in his presence. That evidence manifestly demonstrates that neither
Claassen, nor his superior who sent him
out to arrest the plaintiff
on the day in question, gave any consideration to the necessity for a
warrant for his arrest.
[37]
In my view, when that arrest was ultimately effected, there was no
ground under
section 40
(1) which cloaked it with any legality. At
best for the defendant it appears that the reliance based on
section
40(1)(q)
was predicated on the incorrect factual assumption that the
attack on de Pontes constituted an incident of domestic violence but

unfortunately for the police that does not constitute a reasonable
suspicion as required by the section in question , and consequently

it does not cure the illegality.
[38]
In argument Ms Erasmus referred the court to the judgment of Lewis JA
in
Kitase
[7]
, a case in which reliance was placed by the police on sction
40(1)(q), and submitted that the court should not place form over

substance by limiting the police to their pleadings in circumstances
where the evidence demonstrated that Claassen had genuinely
held the
belief that an act of domestic violence had been committed towards
Friedland that day
[8]
and that
his arrest of the plaintiff was accordingly justified by the fact
which had been fully traversed.
[39]
In my view
Kitase
does
not assist the defendant in this matter. In the first place, the
facts of
Kitase
differ
from this matter on one very significant point .The arresting officer
in that matter arrived on the scene and personally
witnessed the
husband’s acts of domestic violence towards the wife – he
was chasing her with a spade, shouting profanities
at her and both
were covered in blood.
[9]
The
suspicion on the part of the arresting officer justifying an arrest
without a warrant under (q) was therefore manifestly established
on
the evidence. With reference to that court’s earlier judgment
in
Slabbert
[10]
the Learned Judge of Appeal observed that
“…
(T)his
court has repeatedly said that if the evidence adduced at the trial
covers the particular issue then the court is not bound
by the
pleadings…..In my view the evidence clearly demonstrated that
Katise(sic) was guilty of committing acts of
domestic violence. That
was enough to make the arrest without warrant lawful under
s
40(1)(q)...
”
Without
doubt the arresting officer’s personal observations underpinned
the court of appeal’s view of the case.
[40]
In
Slabbert
, which concerned an arrest and detention for
public drunkenness, Mhlantla JA was required to decide whether the
pleaded case covered
an assertion made in argument by the plaintiff.
The Learned Judge of Appeal said the following:
“
[11]
The purpose of the pleadings is to define the issues for the other
party and the court. A party has a duty to allege in the
pleadings
the material facts upon which it relies. It is impermissible for a
plaintiff to plead a particular case and seek to establish
a
different case at the trial. It is equally not permissible for the
trial court to have recourse to the issues falling outside
the
pleadings when deciding a case.
[12]
There are, however, circumstances in which a party may be allowed to
rely on an issue which was not covered by the pleadings.
This occurs
where the issues in question has been canvassed fully by both sides
at the trial. ”
[41]
I am not satisfied that the alleged incident of domestic violence on
the Tuesday morning was sufficiently canvassed by both
parties in
evidence before me. Had that been done, a different picture may have
emerged. I say so because in his evidence the plaintiff
testified, in
reply to questions by the court, that he was then serving time for an
offence of dishonesty and went on to say that
during that time he had
been regularly visited in prison by Friedland. She seems to have been
fairly well disposed to the plaintiff
and it is just possible that
Friedland may have put a different version of events regarding the
Tuesday morning before the court.
[42]
In all the circumstances I am of the view that the defendant has
failed to discharge the onus of establishing that the arrest
of the
plaintiff on that day without a warrant was lawful.
THE
ASSAULTS
[43]
In the finally amended plea of September 2013 the police admit that
they scuffled with the plaintiff outside the shopping centre
and that
Africa sprayed pepper gas in his face. This assault on the plaintiff
is justified by the police on the basis that he had
been lawfully
arrested and that it was necessary to subdue him since his conduct
was riotous in a public place, and generally to
maintain law and
order in a public place. The mantra resorted to by the police in
evidence in this regard is that “
the necessary force”
was resorted to but neither witness could give substance to the
phrase. In any event, in the absence of a lawful arrest, this conduct

of the police was wrongful and an unlawful interference with the
plaintiff’s bodily integrity.
[44]
The plaintiff’s allegations of a further, and more serious,
assault on him by Africa in the back of the van are disputed
by the
police. That requires an evaluation of the testimony of these
witnesses. As a witness I found Africa arrogant and hard-nosed,

almost to the extent of aggressive under cross examination. He said
that he left the police force of his own volition in December
2009
and is now self-employed as a taxi operator.
[11]
Africa’s evidence regarding circumstances of the arrest itself
was not properly corroborated by Claassen. Africa , whose
testimony
is riddled with assertions of poor memory due to the lapse of time,
was able to testify that the plaintiff was placed
in one of 3 police
vehicles parked at the shopping centre but was unable to say whose.
Claassen pertinently testified that he saw
the plaintiff being loaded
into Africa’s van but thought nothing of it.
[45]
Claassen was the arresting officer that day and it is fair to assume
that he would have been the person who would have transported
the
plaintiff to the police station and processed him prior to detention.
After all , it was he who had driven around looking for
the plaintiff
that morning. It is difficult, too, to understand how Africa was
unable to recall into which van the plaintiff was
loaded. In his
contemporaneous statement contained in the police docket Claassen did
not mention that the plaintiff was loaded
into a van other than his,
but he did state somewhat equivocally that the “
suspect was
taken to the Table View cells where he was detained.”
[46]
On the whole I regard Claassen as a reliable witness who made a
favourable impression on the court, but his failure to provide
a
satisfactory explanation as to why Africa transported the plaintiff
to the police station lends credence to the plaintiff’s
version
that he was placed in Africa’s vehicle for purposes of
unauthorised and unlawful punishment. Africa’s evidence
that he
was unaware of the fact that the plaintiff had been placed in the
back of his patrol van at the shopping centre beggars
belief.
Similarly, Africa’s evidence that he only became aware of the
presence of the plaintiff in the back of his van after
he had stopped
at the scene of the alleged housebreaking in is similarly not worthy
of credence. After all, he was driving a police
van equipped with a
window between the rear of the cab and the metal enclosure in which
the plaintiff had been detained. Common
sense tells one that if he
had looked in the rearview mirror in the cab of his vehicle he ought
to have seen the plaintiff who
was evidently the only person in the
back of the van. It is most curious that he only noticed the
plaintiff in the back as he was
about to return to the police
station.
[47]
The plaintiff was a good witness. He faced the indignity of having to
testify in prison clothes and came across as a retiring,
soft-spoken
individual. Indeed, it was difficult to see in him the violent,
drug-fuelled person described by de Pontes. But, perhaps,
he has
managed to shake off his drug habit, and it may be that de Pontes was
correct that it affected him on the night in question.
Be that as it
may, the plaintiff did not attempt to embellish his version and
certainly handled the cross examination of Ms Erasmus
fairly well. In
addition, he made concessions to his detriment where required and
readily conceded his chequered past. The plaintiff’s
evidence
about the events at the shopping centre was corroborated, in the
main, by that of his father. However, Mr Taylor snr tended
towards
over-exaggeration and appeared rather blinkered in his assessment of
his son’s behaviour. I accordingly approach
his evidence with
some caution. Mr Taylor snr confirmed the substance of the
plaintiff’s evidence as regards the attack on
him by the police
outside the shopping centre.
[48]
When the plaintiff was booked into the cells at the police station on
the Tuesday the police were required to make the necessary

endorsement in the “
Cells’ Occurrence Book”.
The
entry at 12h25 on that day records this but makes no mention of the
fact that the plaintiff was “
free of injuries”,
as
is the usual practice. Claassen, however, testified that the
plaintiff was free of injuries when he booked him in on the Tuesday.

Later that day (at 17h50 it seems) the plaintiff was interviewed by a
detective at Table View (also by name of Africa) in relation
to the
charge of common assault on Claassen. The interview form records that
the plaintiff had a bruise on his left forearm and
that he made an
allegation that he had been slapped and kicked while he was on the
ground – the detective did not record
where this occurred.
[49]
After his release on bail by the magistrate on 30 October 2008, the
plaintiff was taken by his father to his GP for a physical

examination. Dr D.L.Bailly completed the J88 form at 16h30 on that
day and recorded 4 observations – (i) a contusion on the
left
eyebrow and left side of the face; (ii) a superficial abrasion on the
left cheek; (iii) a superficial abrasion on the right
cheek, and (iv)
a superficial abrasion on the left forehead. The doctor remarked on
the form that the plaintiff complained of a
headache and was sleepy.
He diagnosed mild concussion and opined that the injuries were
consistent with blunt trauma sustained
on 28 October 2008. The J88
form was accompanied by an affidavit deposed to in terms of
section
213
of the CPA, was admitted into evidence by agreement and so it
became unnecessary for the doctor to testify.
[50]
The injuries described by the doctor are consistent with both
assaults allegedly perpetrated on the plaintiff by the police
on the
Tuesday. In cross examination Ms Erasmus suggested to the plaintiff
that the injuries found by Dr Bailly might just have
well been
sustained in a fight in the cells with a fellow prisoner. It appears
from the cell register that a certain “Angel
Babe” had
been arrested for robbery on the Wednesday at around 08h00 and that
he had thereafter shared a cell with the plaintiff.
The point raised
seems to me to be no more than idle speculation since there are no
entries in the cell register after Babe’s
detention of any
complaint of fighting involving him and the plaintiff and nothing to
suggest how the bruise observed on the Tuesday
afternoon was
sustained.
[51]
I accept the plaintiff’s evidence that he was assaulted by the
police, both during the arrest and shortly thereafter
at the hands of
Africa. In so doing I take cognizance of the fact that the plaintiff
has previous convictions involving dishonesty
and the possibility
that he may have given false testimony. But, I am satisfied that
there is sufficient corroboration for his
evidence in the testimony
of his father, the evidence of Claassen and Africa and the medical
report. In assessing the quantum of
damages for these assaults I
intend considering a globular sum, given the proximity in time and
the similarity of the incidents.
I will have regard also to the fact
that the
sequalae
of the injuries were not serious, or long
lasting.
THE
DETENTION
[52]
The plaintiff was detained for about 48 hours before being released
on bail. During that time he was obviously deprived of
his liberty,
but the plaintiff did not relate any incidents which might be
considered to be startling or alarming. There was some
evidence led
that the plaintiff had clashed with the law before and, upon
questioning by the court, it appeared that this had occured
on a
number of prior occasions. In some instances the plaintiff had been
subpoenaed to appear at court and in others he had been
arrested and
detained. The point is that the incareceration in this case was not
the plaintiff’s first detention at the hands
of the police and
the incarceration as such does not seem to have had any particularly
traumatic effect on him. Certainly, the
plaintiff did not testify
about any such consequences.
[53]
As I have already indicated, the plaintiff was examined by his GP
shortly after his release and the extent of the injuries
sustained
during his arrest by Claassen and the assault by Africa appear
therefrom. There were no lacerations or open wounds –
only
bruises and abrasions. The plaintiff’s evience that his body
was sore for a couple of weeks and that he suffered a mild
concussion
as a consequence of the assaults, was not challenged
[54]
In one of the earlier versions of the particulars of claim, the
damages claim included a component in respect of the plaintiff’s

deprivation of medical attention and access to legal representation
while in custody. This fell by the wayside later, and, in any
event,
there was no evidence to sustain the allegation. The plaintiff’s
testimony that he was shocked by the whole event
and particularly
because of the fact that it occurred in public and in the presence of
his father was not disputed. Further, he
said that the matter enjoyed
considerable coverage in the local neighbourhood newspaper. It must
be said though that the plaintiff
was a willing participant in that
interview and did not seem to shy away from the consequent publicity.
[55]
The plaintiff complained about a loss of earnings as a consequence of
the incident. He testified that over the years he had
been fairly
regularly employed in the food industry (both locally and abroad) in
a managerial capacity in retaurants. He said that
as a consequence of
his arrest he was listed on an electronic database called the KROLL
system to which employers had access and
from which his criminal
background could be established. He suggested that this may have
affected his employability after the incident.
Certainly, the fact
that he regularly attended court over the years while the assault
case against de Pontes ran meant that he
was unable to work on those
days.
[56]
Under cross examination by Ms Erasmus the veracity of the plaintiff’s
allegations regarding his earnings both before
and after the incident
were exposed. There can be no doubt about the fact that the plaintiff
would have lost income if he was supposed
to be working when required
to attend court to answer the assault charges. However, the evidence
presented in this regard was casual
and patchy and is not sufficient
to sustain a loss of income. In any event, that loss would not flow
from the wrongful arrest
per se
but rather from the fact that
he had had been prosecuted for the alleged attack on de Pontes. It is
not a consequential loss flowing
from the delict in question
(wrongful arrest and assault by the police) and is therefor not
recoverable by the plaintiff as against
the police. At best for the
plaintiff, the award for general damages should include a minor
component of loss of earning capacity.
[57]
In calculating an award of damages a court exrecises a wide
discretion in making an award that is fair to both parties. All
of
the material facts need to be considered holistically, and it is
acceptable to consider earlier awards in similar cases for
purposes
of guidance, but as Nugent JA pointed out in
Seymour
[12]
courts
must not slavishly apply actuarial calculations to such earlier
awards in order to establish the current value thereof since
the
differentiation between the facts of each matter is critical to a
fair estimation.
[58]
In the instant case there are essentially 3 components to the damages
claim – the assaults, the wrongful arrest and the
unlawful
detention. It is well nigh impossible to place a monetary value on
each such component and the best I can do is to award
a globular
figure to cover all the components mentioned together with any others
that I may have missed. In
Seymour
[13]
Nugent JA offered the
following advice-
“
Money
can never be more than a crude
solatium
for the deprivation of what, in
truth, can never be restored and there is no empirical measure for
the loss. The awards I have referred
to reflect no discernible
pattern other than that our courts are not extravagant in
compensating the loss. It needs also to be
kept in mind when making
such awards that there are there are many legitimate calls upon the
public purse to ensure that other
rights that are no less important
also receive protection.”
[59]
I have considered the various cases consulted by Nugent JA in
Seymour
, many of which were dealt with by Ms Erasmus in
argument and in respect whereof the current values of such awards
were furnished.
I consider that a globular award of R120 000
will do justice to the plaintiff for all of the wrongs he suffered at
the hands
of the police pursuant to this unfortunate and unnecessary
incident.
COSTS
[60]
The award which I intend making currently falls within the monetary
jurisdiction of the magistrates court (now set at R300 000).

However at the time that summons in this matter was issued the
jurisdiction was still R 100 000 and the plaintiff was accordingly

obliged to commence action in this court. Ms Erasmus fairly conceded
that in the event that the award exceeded R100 000, costs
on High
Court scale could be awarded.
ORDER
OF COURT
IN
THE CIRCUMSTANCES IT IS ORDERED THAT:
1.
The defendant shall pay the plaintiff
damages in the amount of R120 000;
2.
The defendant shall pay interest on the
said amount at the prescribed rate from date of judgment to date of
payment;
3.
The defendant shall pay the plaintiff’s
costs of suit in accordance with the High Court tariff
GAMBLE
J
[1]
Minister
of Safety and Security v Glisson
2007(1)
SACR 131 (E) at 134F
[2]
Minister
of Safety and Security v Sekhoto and Another
2011(1)
SACR 315 (SCA)
[3]
The
case involved the arrest of 2 suspects on allegations of stock theft
[4]
The
ground of justification for an arrest without a warrant afforded by
sec 40(1)(b)
is as follows –“
whom
he reasonably suspects of having committed an offence referred to in
Schedule 1, other than the offence of escaping from
lawful custody.”
Schedule
1 to the CPA contains a list of serious offences and includes
“
assault, [only] when a dangerous
wound is inflicted.”
[5]
“
(j)
who wilfully obstructs him in the execution of his duty”
[6]
The
definition of “
complainant”
in
the
Domestic Violence Act is
limited to “
any
person who is or who has been in a domestic relationship with a
respondent and who is or has been subjected or allegedly subjected

to an act of domestic violence, including any child in the care of
the complainant”
[7]
Minister
of Safety and Security v Kitase
2015(1)
SACR 181 (SCA) at para [15]
[8]
There
is little room for doubt that her cohabitation with the plaintiff
constituted a domestic relationship as defined
[9]
In
such circumstances the officer could also have relied on
section 3
of the
Domestic Violence Act which
permits an arrest without a
warrant where the arresting officer is present at a scene of an
incident of domestic violence.
[10]
Minister
of Safety and Security v Slabbert
[2010]
2 All SA 474
(SCA)
[11]
Newspaper
articles attached to the plaintiff’s pleadings suggested that
Africa had been involved in other acts of vilonce
while still in the
SAPS and was facing internal discipline, but none of this was
verified through evidence.
[12]
Minister
of Safety and Security v Seymour
2006
(6) SA 320
(SCA) at 323-6
[13]
p
326 para [20]