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[2016] ZAWCHC 65
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Minister of Police and Another v Daniels (A110/15, 23186/07) [2016] ZAWCHC 65 (1 June 2016)
THE
HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Appeal
Case No: A110/15
Court
a quo Case No 23186/07
DATE:
1 JUNE 2016
THE
MINISTER OF
POLICE
.............................................................................
FIRST
APPELLANT
SE
MULLER
.....................................................................................................
SECOND
APPELLANT
And
PAUL
J
DANIELS
..........................................................................................................
RESPONDENT
Coram
: DLODLO & ROGERS JJ
Heard
:27 MAY 2016
Delivered
: 1 JUNE 2016
JUDGMENT
ROGERS
J (DLODLO J conc):
[1]
The respondent sued the appellants in the court a quo for damages for
assault and unlawful arrest and detention. I shall refer
to the
respondent as the plaintiff and the second appellant, who is a
captain in the South African Police Service, as Muller. The
first
appellant is the Minister of Safety and Security. Mr Nel and Mr Salie
SC appeared for the plaintiff and defendants respectively
at the
trial and on appeal.
[2]
In his summons the plaintiff alleged that as a result of the assault
he had to undergo medical treatment, had lost past and
future income
and experienced pain and suffering. He claimed a generalised amount
of R100 000.
[3]
The defendants denied that Muller acted unlawfully. They pleaded that
Muller lawfully arrested the plaintiff for committing
violations of
the
National Road Traffic Act 93 of 1996
in Muller’s presence
and that Muller only used such force as was necessary for this
purpose.
[4]
There was a criminal prosecution against Muller. The outcome does not
appear from the record. However documents from the docket
and parts
of the oral evidence were referred to during the civil trial.
[5]
The onus rested on the plaintiff to prove unlawful assault. The onus
rested on the defendants to prove that the arrest and detention
were
lawful in terms of
s 40(1)(a)
of the
Criminal Procedure Act 51 of
1977
.
[6]
The incident occurred shortly after 07h00 on 20 November 2006 in
Voortrekker Road, Maitland. The plaintiff was the driver of
a taxi.
Muller was returning to the Woodstock Police Station from nightshift.
[7]
The plaintiff’s case was in summary the following. He dropped
off some passengers near the traffic lights at 16th Avenue.
Muller,
who was in a police van, stopped and told him it was a no-stopping
zone. The plaintiff explained that the traffic light
was red. Muller
said that the plaintiff should not mess around with him so early.
They went on their way, with the plaintiff behind
Muller. The
plaintiff wanted to get past Muller but the latter switched from lane
to lane to prevent this. This continued until
the traffic lights at
5th Avenue. There the plaintiff got out and went to Muller’s
van, asking him why he was driving like
a road hog. As he turned,
Muller grabbed him from behind and hit him. The plaintiff pushed him
away, returned to his taxi and proceeded
on his way. At the traffic
lights near ShopRite the plaintiff’s path was blocked by
several other police vans, Muller having
radioed assistance. Muller
and other policemen punched and kicked him and bundled him into
Muller’s van. He was taken to
Maitland police station and
placed in a holding cell where he was further assaulted and lost
consciousness.
[8]
It is common cause that not long afterwards the plaintiff was
released into the care of his friends after Muller had issued
fines
for the no-stopping offence, for the use of abusive language in
public and for the lapsing of the plaintiff’s taxi
permit.
According to the plaintiff’s friends, they had to carry him
out. They took him to a doctor who recommended they take
him to
Tygerberg Hospital. He was examined there by a Dr Smith and
discharged the next morning.
[9]
The defendants’ version was that at 16th Avenue the plaintiff
nearly caused an accident by stopping suddenly to offload
passengers.
In warning him Muller introduced himself as a police captain. Muller
denied having zigzagged in front of the plaintiff.
At the traffic
lights at 5th Avenue the plaintiff swore at him for driving like a
pig. Muller warned him about swearing at a police
officer. The
plaintiff was undaunted and threatened to beat him up. Muller got out
of his van and placed him under arrest for swearing
in public, for
threatening him and for the no-stopping offence. The plaintiff
grabbed him and said that Muller was not going to
arrest him. He
again threatened Muller. The latter managed to manoeuvre the
plaintiff towards the back of the police van but as
he tried to open
the door Edward Du Plooy, the plaintiff’s taxi assistant,
pushed Muller away. The plaintiff and Du Plooy
drove off. Muller
radioed for backup. Several other vans arrived and Muller arrested
the plaintiff near ShopRite. The plaintiff
accompanied him to the
back of the van. It was not necessary to use force. At the police
station the plaintiff was placed in a
holding cell while Muller wrote
up the docket. While he was doing so the plaintiff grabbed his
stomach in pain, knocked over a
chair and then appeared to suffer an
epileptic fit, foaming at the mouth. Muller summoned an ambulance.
Before the ambulance could
arrive he was persuaded to release the
plaintiff into the care of his friends. He first issued the fines
previously mentioned.
By this stage the plaintiff was conscious and
able to walk out of the police station.
[10]
The plaintiff’s version was corroborated in material respects
by Alphonso Jantjes, who was a guard in the taxi behind
the
plaintiff’s taxi, and by Du Plooy. Both testified about the way
Muller zigzagged in front of the plaintiff’s taxi,
as if he
were taunting him. They also portrayed Muller as the person who
initiated physical aggression at the 5th Avenue intersection.
Du
Plooy, though not Jantjes, also witnessed the assault near ShopRite.
Both of them saw at the police station that the plaintiff’s
face, arms and stomach was swollen and bruised. To this may be added
the consideration that it is inherently unlikely that the
plaintiff
would have confronted Muller at 5th Avenue and remonstrated about his
driving unless Muller had been driving provocatively.
[11]
The plaintiff and his witnesses formed a favourable impression on the
magistrate. I should observe that Jantjes’ credibility
was
impugned in one material respect. In his docket statement he claimed
to have observed the assault which took place near ShopRite.
In his
oral evidence in the court a quo he claimed not to have seen the
assault because his taxi had driven past and parked. Docket
statements are not always taken down accurately. It was not shown
that he had given inconsistent evidence under oath at the criminal
trial. If he had wanted to lie on behalf of the plaintiff in the
civil trial, he could easily have testified that he saw the assault.
[12]
Muller did not impress the trial court. In regard to the incident at
5th Avenue, Muller’s version derived some support
from William
Matheze, a co-parishioner of Muller’s who happened to be
outside a nearby shop. Although Matheze’s impression
was that
the plaintiff was the aggressor, he was not close enough to hear what
passed between them. It seems not to have been sufficiently
dramatic
to detain him because he went into the shop and when he came out a
few minutes later both Muller and the plaintiff were
gone. The
defendants also called Sgt Petersen who was one of the policemen in
the backup vans. He testified that there was no assault
during the
plaintiff’s arrest. At one stage he said he (Petersen) had
taken the plaintiff out of his taxi; later he said
Muller had done
so. Initially he said that the plaintiff had got into the back of
Muller’s van on his own; later he said
Muller loaded him into
the van.
[13]
The defendants called two police officers who were on duty at the
Maitland police station. Their evidence did not add much.
Insp
Steenkamp saw the plaintiff lying on the floor of the cell apparently
suffering a fit but did not see the build-up to this
incident. Capt
Thiart testified that the plaintiff was very rowdy as he came into
the police station, wanting to know why he had
been arrested (that he
should have so complained is consistent with his version that he was
not told why he was being arrested).
No assault took place in
Thiart’s presence but he does not claim to have been in the
vicinity of the holding cell when, according
to the plaintiff, he was
punched and kicked.
[14]
On 9 April 2008, ie about 17 months after the incident, the plaintiff
was examined by Dr Vlok, the head of orthopaedic surgery
at Tygerberg
Hospital, apparently for the purpose of preparing an expert report on
the plaintiff’s behalf. The plaintiff
did not call Dr Vlok as a
witness and the defendants then chose to do so. Dr Vlok did not
observe any lasting injuries. Without
objection Dr Vlok in chief
referred to an affidavit by Dr Smith which recorded the latter’s
observations at Tygerberg Hospital
on 20 November 2007. According to
that affidavit the plaintiff sustained blunt trauma to his head, neck
and abdomen. The hospital
notes show that the medical staff were
sufficiently concerned that they performed a chest x-ray, a brain
scan and an ultrasound.
In cross-examination Dr Vlok was referred to
Dr Smith’s evidence at the criminal trial to the effect that
the plaintiff’s
stomach looked distended. Dr Vlok said there
was no doubt that the plaintiff had suffered blunt-force trauma.
[15]
In the court a quo Mr Salie put Muller’s version to Dr Vlok and
invited him to say whether the injuries observed by Dr
Smith might
have been caused during the tussle at 5th Avenue as described by
Muller. Dr Vlok replied that this could well be the
case. Before us
Mr Salie submitted that this important evidence had been ignored by
the magistrate. It is unfortunate that the
magistrate did not deal
with Dr Vlok’s evidence. Nevertheless, I do not believe it
assists the defendants. His opinion that
the plaintiff’s
injuries were consistent with Muller’s version was highly
speculative and not properly motivated. I
think it most improbable
that the blunt force trauma suffered by the plaintiff could have come
about as Muller described. According
to Muller the physical tussle at
5th Avenue constituted ‘minor’ or ‘light contact’,
a ‘wrestling’
or ‘pushing and pulling’, not a
fight. There were no punches (though according to Muller the
plaintiff wanted to hit
him). On Muller’s version the plaintiff
must have suffered the blunt force trauma at 5th Avenue because no
force was required
when the plaintiff was arrested at ShopRite and no
violence took place at the police station. This means that the
plaintiff, having
suffered blunt force trauma, got into his taxi and
continue driving, which seems implausible.
[16]
I have taken into account the possibility that at least some trauma
may have been suffered during the fit which the plaintiff
suffered in
the holding cell. According to Muller the side of the plaintiff’s
head hit against the floor several times as
he was convulsing. There
is nothing to gainsay the evidence of the plaintiff and his mother
that he has never previously or subsequently
had a fit. He must have
suffered some significant violence to induce a fit on this particular
occasion. I find contrived the notion
that the fit could have
accounted for any significant part of the blunt force trauma which Dr
Smith subsequently observed.
[17]
In the circumstances, I do not think we have grounds to interfere
with the magistrate’s factual findings in favour of
the
plaintiff and against the defendants.
[18]
On this basis, the defendants did not in my view prove on a balance
of probability that the plaintiff committed an offence
justifying his
arrest. Despite there being some dispute about the no-stopping
offence, I am prepared to accept that the plaintiff
contravened the
law. However Muller chose to warn the plaintiff, not charge him, far
less arrest him. The plaintiff’s subsequent
behaviour could not
justify an arrest for the no-stopping offence.
[19]
In regard to what happened at the 5th Avenue intersection, it was not
shown that the plaintiff was not entitled to remonstrate
with Muller,
given his deliberate zigzagging in front of the plaintiff’s
taxi (though it was foolish for the plaintiff to
have done so). On
the plaintiff’s version he did not use foul language. However,
and even if (as Muller claims) the plaintiff
enlivened his remarks
with an expletive starting with the sixth letter of the alphabet,
this display of annoyance could not in
our modern society be typified
as conduct constituting a criminal offence or justifying arrest. The
legal source of the offence
was not pleaded or identified in
argument.
[20]
On the plaintiff’s version he also did not threaten Muller with
violence. Even on Muller’s own version, the plaintiff’s
supposed threat to beat him up (expressed in colourful vernacular)
was not a real threat. The plaintiff was standing in the road
and
Muller was behind the wheel of his police van. Muller did not say
that the plaintiff showed any signs of attacking him in his
van. It
must have been obvious to Muller that the supposed threat was simply
a further expression of the plaintiff’s anger
at Muller’s
driving and that the plaintiff would return to his taxi since the
traffic light would shortly turned green.
[21]
When we asked Mr Salie in argument what offence the plaintiff
committed in making the supposed threat, he replied that it amounted
to an assault. It is true that assault may be committed by conduct
which inspires fear that force will be applied (Snyman Criminal
Law
6th Ed at 450-451). We were not addressed on the requirements for
assault in this form. According to the author just cited,
there must
be a threat of immediate violence and the victim must subjectively
believe that the perpetrator intends to carry out
the threat, the
essence of this form of assault being the intentional inculcation of
fear of bodily harm. Assault was not pleaded
as one of the offences
committed in Muller’s presence. Since both sides’
versions were fully canvassed in evidence,
I would not be inclined to
be technical about the pleadings. However Muller’s evidence
falls well short of establishing that
the plaintiff’s words
engendered in him a belief that he was in imminent danger of attack.
There was only physical contact
because Muller chose to get out of
his van and confront the plaintiff.
[22]
The defendants thus did not discharge the burden of proving that an
offence was committed in Muller’s presence. Even
if technically
some offence was committed, Muller could not in all the circumstances
properly have exercised his discretion to
effect an arrest. I am
satisfied on this latter point even if the onus was on the plaintiff
to establish that the arrest discretion
was improperly exercised. I
think Mr Nel’s submission is probably correct that the incident
escalated into a personal affair
between Muller and the plaintiff and
that the former eventually abused his authority as a policeman in
order to assert his ascendancy
over the plaintiff.
[23]
The plaintiff discharged the burden of proving that he was assaulted.
Since the arrest was unlawful, any physical force used
in effecting
it was unlawful. I should add that even if the arrest was justified,
it is perfectly clear that excessive force amounting
to an assault
was employed. The plaintiff’s injuries are not explicable on
any other basis.
[24]
In regard to damages, the magistrate awarded R25 000 in respect of
the assault and R25 000 in respect of the unlawful arrest
and
detention. Mr Salie submitted that no more than R10 000 should have
been awarded under each head. Both awards appear to have
been made as
general damages although there was evidence that the plaintiff had
been off work for about two months. We cannot interfere
with these
awards in the absence of material misdirection. The authorities cited
by Mr Salie do not persuade me that we are entitled
to intervene. I
think I might have been inclined to award somewhat more in respect of
the assault (which was serious even though
it did not result in
permanent injury) and somewhat less in respect of the arrest and
detention (which was no more than an hour
or so) but that is not the
question.
[25]
The magistrate ordered costs on the attorney and client scale. He did
not give reasons for so doing. The unlawfulness of Muller’s
conduct is reflected in the award of damages. There was nothing
improper about the way the defendants conducted the litigation.
I am
not aware of a general practice of ordering defendants in these types
of cases to pay costs on a special scale. I thus consider
that we
should amend the magistrate’s cost order. Mr Salie did not
submit that success of this limited kind should affect
the cost of
the appeal.
[26]
The following order is made: (i) Para 4 of the court a quo’s
order of 14 September 2012 is amended by deleting the words
“on
attorney/client scale”. (ii) Save as aforesaid the appeal is
dismissed. (iii) The appellants shall pay the respondent’s
costs of appeal, the one paying the other to be absolved.
ROGERS
J
DLODLO
(conc)
APPEARANCES
For
Appellants: Mr M Salie SC
Instructed
by: The State Attorney
4th
Floor, Liberty Life Centre
22
Long Street
Cape
Town
For
Respondent: Mr JAB Nel
Instructed
by: Laubscher & Hattingh
c/o
Smith Tabata Buchanan Boyes
8th
Floor, 5 St George’s Mall
Cape
Town