Leutlwetsi v Minister of Police (17424/2011) [2018] ZAWCHC 32 (29 January 2018)

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
>>
2018
>>
[2018] ZAWCHC 32
|

|

Leutlwetsi v Minister of Police (17424/2011) [2018] ZAWCHC 32 (29 January 2018)

SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
Number:
17424/2011
In
the matter between:
SAMMY
P
LEUTLWETSI
Plaintiff
and
MINISTER
OF POLICE
Defendant
Delivered:
29 January 2018
JUDGMENT
BOQWANA,
J
Introduction
[1]
The plaintiff instituted an
action against the defendant, claiming damages in the amount of R
5 000 000.00, in respect
of an alleged unlawful arrest and
assault.  At the outset, parties advised the Court that the
matter will proceed both on
merits and quantum.
[2]
The quantum claimed comprised:
[2.1] Past loss of earnings – R1 1150.00
[2.2] Future loss of earnings – R8 850.00
[2.3] Past hospital and medical expenses –
R10 000.00
[2.4] Future hospital and medical expenses –
R12 000.00
[2.5] General damages for pain and suffering,
depravation of liberty, loss of amenities of life and shock –
R4 758 000.00
[2.6] Contumelia and impairment of dignity –
R200 000.00
[3]
The plaintiff has since abandoned
the claims for past and future loss of earnings, as well as past and
future medical and hospital
expenses, and reduced the general damages
claimed to R378 000.00.
[4]
The plaintiff testified in his
case and also called three witnesses, namely, Noluthando Sidzumo
(‘Sidzumo’), Cheryl
MacKlay (‘MacKlay’) and
Mandla Sibeko (‘Sibeko’), whilst the defendant called
Linda Tolbadi (‘Tolbadi’),
Albert Jamjam (‘Jamjam’)
and Monde Mfeya (‘Mfeya’).
Plaintiff’s
evidence
[5]
The plaintiff testified that he
was 36 years old and resided at no.[…], NY […],
Gugulethu.
On
Thursday 20 November 2008, sometime after 12:00 in the morning, he
was arrested in his room situated outside the main house,
in the
presence of his girlfriend, Sidzumo, by members of the South African
Police Service (‘SAPS’).  He testified
that whilst
he and Sidzumo were sleeping, he heard the door being kicked.
It transpired that the door was kicked open by
the police who entered
the room carrying firearms.  The television set in his room was
on, but the lights were off.  The
police entered with torches,
which lit up the room.  None of them were dressed in police
uniforms.  Without identifying
themselves, they started asking
him why he [and others] took “
the
old age
” money.  They
then put a plastic bag over his head, which they squeezed tight
around his face, making it difficult to
breathe.  Whilst they
were doing this, they were kicking him.  His girlfriend would
have seen what was happening.  The
plaintiff passed out and when
he regained consciousness he was inside a Condor motor vehicle.
He was handcuffed, with his
hands behind his back. The handcuffs were
tight and the police continued to tighten them even further, so as to
cause pain.
He sustained injuries on his left wrist.  He
showed a linear blackish scar of less than 5 cm to the Court, which
he alleged
was the injury caused by the handcuffs.
[6]
He noticed that there were other
men in the vehicle.  There were a lot of police officials
present.  None of the vehicles
were marked as police vehicles
and they were white in colour.  He was taken to the Bellville
South Police Station.  Once
there he and another person, known
as Power, whom he knew as residing at Tambo Square, were taken to a
room where they were assaulted
by police officials.  Power was
the first to be handcuffed and they ordered him to stand on his
knees.  The police put
a plastic bag over Power’s head, in
the same manner as they had done to the plaintiff when they assaulted
him at his home.
They then told the plaintiff to watch as they
ordered Power to lie on his stomach, whilst they sat on his back
holding the plastic
bag from behind and tightening it.
He
could remember two of the officials involved: Tolbadi, the
Investigating Officer (who had also been involved in the incident

earlier at his house) and a gentleman wearing spectacles.
[7]
Whilst Power was on the floor,
the plaintiff was also instructed to stand on his knees; however he
was not handcuffed, he was told
to watch.
Even though
the plaintiff was not restrained at this point, he was unable to
escape, as the exit was blocked by burglar bars.
Power then revealed that he [and others] had broken into a place in
Table View.  The police told the plaintiff to pray. Power
was
ordered to sit on the chair and was given a drink.  The
plaintiff was then ordered to lie on his stomach
and was
tortured in the same manner as Power had been. The torture continued
until daybreak, as a result of which he was sore and
his hands were
swollen, but he did not sustain any bruises.  Throughout this
ordeal he fainted several times, and was on each
occasion revived by
having water poured over him.
[8]
Thereafter his fingerprints were
taken.  He and Power were then placed in a cell which was
approximately 5 x 8 metres in size
and occupied by about 15 people.
It had one window with burglar bars.  It had mattresses
which, at night, they would
put together so that everyone could have
a place to sleep.  He could not sleep as he was in pain.
[9]
At around 5 or 6 o’ clock in the morning he
informed a police captain that his swollen hands were causing him
much discomfort
and that he had difficulty eating.  The captain
indicated that he would investigate, but subsequently informed him
that as
he had been arrested for a serious matter, the captain could
not assist him.  No other assistance was forthcoming. His hands

improved about three weeks later, while he was detained in Pollsmoor.
[10]
On Sunday 23 November 2008 he was interviewed by
Investigating Officer Tolbadi and informed that he had been arrested
on account
of his fingerprints having been found on a Volkswagen
Jetta 4.  It was alleged that he had driven this vehicle and had
provided
transport to an unnamed person, who had then committed a
robbery.  He was charged and his first court appearance was
Monday
24 November 2008, with Tolbadi in attendance.  In court
he was informed of his right to legal representation and was given
7
days to arrange for same.  His family and his girlfriend
arranged for Ms Sharon Williams (‘Ms Williams’) to

represent him.  The matter was then postponed for a bail
hearing.
[11]
Approximately a month later a formal identity parade
was held, with Tolbadi and Ms Williams in attendance.  It was
communicated
to him that he had not been identified at the parade.
Sometime in early 2009 his bail application was heard, at which point

it came to light that the fingerprints in the vehicle were not his,
though it was not revealed to him to whom it did belong.
The
application was postponed again, as it appeared that he had another
pending matter in Paarl.  At this point Ms Williams’

mandate was terminated and Advocate Pienaar stepped in.  During
a further bail hearing in April 2009, he finally had an opportunity

to inform the court of how he was arrested.  Bail was granted in
the amount of R1000, though he no longer has the bail receipt,
as the
money was paid back after the case was withdrawn.  According to
the plaintiff the magistrate wanted to withdraw the
matter, saying it
had no merits.
[12]
The case was sent to Wynberg Magistrate’s Court,
where, after several postponements, it was finally withdrawn in
2012.
While the State wanted to proceed with the case, none of
the nine people in attendance knew him, resulting in the withdrawal.

His ordeal has left him traumatised and fearful of the police.
He occasionally dreamt of the incident, but was not currently

receiving any counselling.
[13]
In cross examination the plaintiff testified that while
he knew where the Ikwezi Community Centre (‘Ikwezi’) was,
as
it was close to where he lived in Gugulethu, he did not know
anything about a robbery there.  On the night of 13 November
2008 while he and his girlfriend were asleep at his home, at
approximately 6 to 7 o’ clock, he had been woken by gunshots.

He was later informed by some of his family members, who had gone to
investigate the gunshots, that there had been a robbery.

Furthermore he knew nothing about a white Volkswagen Jetta 4, which
had allegedly been hi-jacked in the vicinity of Newlands or
Bishops
Court prior to the robbery.  He stated that he knew Lulama
Mpambo (‘Mpambo’) – who was referred
to variously
as ‘Mpanzo’ and ‘Mpango’ by counsel and other
witnesses – as they had grown up together
and lived opposite
one another.  He confirmed that there had not been any animosity
between them, but that Mpambo had been
untruthful in her statement to
the police, as he had not been involved in the robbery and had not
given Mpambo a lift on the morning
of 13 November.  He indicated
to the Court that his room in his home was about 6 x 6 metres in size
(by object reference in
court), but maintained that he knew nothing
of measurements.
[14]
He denied that the police knocked
at his door on the day of his arrest, and maintained that they just
kicked the door in.
He stated that he would have heard if they
had knocked (even if he was asleep).  He never saw any flying
squad, the presence
of which was suggested on behalf of the
defendant.  When he woke up in his room he was dizzy, there were
a lot of people and
they were making noise. The police said that the
light in the room must be switched on.  He was surprised to see
himself being
lit up by torches and having firearms pointed at him.
The police kicked him in his chest and stomach, causing him to be
short
of breath.  They then asked him to stand up from the bed.
He seemed to concede that the police did not kick him when
he was
lying on the bed; they wanted him to get up.  He was asked how
it was possible that the police could kick him in his
chest whilst
standing, to which he stated that they kicked him on his feet whilst
he was standing.  He could not explain how
they kicked him in
his chest while he was standing, but maintained that he did not know
but they kicked him.  The police slapped
and kicked him in his
room.
[15]
He conceded that there had been no marks on his face or
body from being slapped and kicked.
He conceded
further that the only things he complained about to the captain were
that his hands were sore or swollen because of
the handcuffs, and
that he had difficulty swallowing because his throat was sore since
he had been throttled or strangled.
[16]
He seemed to think that he had
been handcuffed from past after 12:00 at his home, until dawn, at
about past 5 or past 6. When it
was put to him that he did not tell
the magistrate that he was allegedly assaulted by the police, his
answer was that the magistrate
never asked him that.  It was
also put to him that he did not tell the prosecutor that he was
assaulted by the police; his
answer was that he did not get a chance
to speak about that with him.  He conceded that whilst he was
facing the charges in
relation to the attempted robbery at the
Ikwezi, he had another pending matter regarding possession of a
firearm.  The firearm
case was subsequently withdrawn.
[17]
It was put to him that the case
regarding the firearm was withdrawn because the State wanted to
centralise the charges, as the firearm
was allegedly used to commit
several offences stretching from Port Elizabeth to Grabouw, as well
as several places in Cape Town,
and that that was why Tolbadi opposed
bail in the attempted robbery at Ikwezi.  The plaintiff
testified that he did not know
about those facts, but that the case
that involved the firearm was run at the same time as the case of the
attempted robbery at
Ikwezi.
[18]
Sidzumo testified that she and
the plaintiff were in a relationship from 2006 to 2012 and that they
have a 6 year old child together.
On 13 November 2008 they were still
dating. She first heard about the robbery when police came to the
plaintiff’s house.
On 13 November 2008, she and the
plaintiff were woken up by shots.  At the time, she was supposed
to go to work.  She
went outside to go and fetch some water,
preparing to take a bath.  The plaintiff’s sister and
father informed her about
the robbery.
[19]
The plaintiff then took her to
the terminus, since she was going to work.  When she arrived at
work in Claremont she received
three “
please
call me”
messages from the
plaintiff’s phone number.  She called him to ascertain the
reason for the messages.  He told
her that the police had been
at his place and that they wanted to take him to the station, as they
alleged he had been involved
in a robbery.  The plaintiff
suggested that she come back from work and accompany him to the
police station to confirm that
they had been together that night.
She did not go to the police station.  She phoned the plaintiff
again later, who
then told her that she did not have to
come.
She seemed to think that the plaintiff went to the police station
with his sister.
[20]
She went to the plaintiff’s
house and found that the police had kicked the door down.  The
plaintiff informed her that
he had gone to the police station and had
been told that the police made a mistake by going to his house.
[21]
In regard to the events of 20
November 2008, Sidzumo testified that she had been asleep [at the
plaintiff’s home], that the
lights had been off, but that the
TV was on, as they did not usually switch it off.  She was woken
up by the doors being kicked
in and torches being shone on them. The
police had kicked the door open and wanted to know from the plaintiff
whether he was known
as Sammy.  There were a lot police, but she
was too shocked to count them.  They were wearing normal
clothing and some
wore bullet-proof vests.
[22]
The plaintiff confirmed that he
was Sammy.  The police did not introduce themselves; they just
wanted to know from the plaintiff
where the old age pension from the
Ikwezi was. When the plaintiff told them that he knew nothing about
the money, the police assaulted
him by smacking his face and kicking
him.  There was also one official who had a golf stick with
which he hit the plaintiff.
At that stage the plaintiff tried
to prevent them from hitting him.  He had been seated on the bed
and they hit him until
he fell to the ground, whereupon he was
dragged outside.  He was powerless to resist, due to having been
assaulted.
Sidzumo started crying and one of them said “
hit
this thing
”, referring to her.
[23]
One policeman kicked her in
the
stomach and she fell onto the bed.  She did not know where they
were taking the plaintiff.  They dragged him towards
the
vehicles that they had arrived in.  She went up to the gate, but
could not see which vehicle they put the plaintiff in,
because there
were quite a lot of vehicles, most of which were white in colour.
[24]
Before he was dragged into the
vehicles, the plaintiff’s mouth had been bleeding.  When
asked whether she saw any injuries
on the plaintiff, she demonstrated
by placing her hand on her forehead, but she could not recall which
side of the forehead the
injuries were on.  He had also been
bleeding around one eye.  She had seen these injuries when the
plaintiff was being
assaulted in the room.  She saw the
plaintiff again when he appeared in court, at which point he showed
her other injuries
on his feet. He told her that he also had wounds
on his arms.  Sidzumo demonstrated with both her hands on her
arms.  Pointing
to her left wrist, she stated that the injury
was reminiscent of someone being scratched very severely.
[25]
She only saw the plaintiff again
when he came back from Pollsmoor, some 5 or 6 months later.  He
had lost some weight. She
became scared of sleeping at the
plaintiff’s place, because he would wake up every time he heard
the sound of a vehicle.
[26]
In cross examination, Sidzumo
testified that the plaintiff was also hit with a fist in his face.
She could not say for how long
the assault went on.  The
official, who was most involved in assaulting him, was a black
gentleman, who wore spectacles.
She also could not say whether
his bleeding eye was blue or swollen, as she had been scared and
shocked, and had been crying.
[27]
As they dragged him outside, the plaintiff exclaimed
“
yoh-yoh
”, as he was in pain.  She put on her
trousers and followed them out.  She did not think that the
plaintiff understood
what was happening or that he was conscious when
he was outside because he was powerless.  She could not speak to
the plaintiff
because she was also scared, shocked and crying.
[28]
When asked if she had seen something like a rubber tube
or a rope being used to torture him, she testified that a plastic bag
that
looked transparent was put onto him.
At
that point she was not thinking straight and did not look at the
time, therefore she could not say how long it took from when
the
police got into the room to when they took the plaintiff outside, but
it was not quick.
[29]
She denied that Tolbadi entered the room only after the
place was secured by the NIU.  She stated that Tolbadi, whom she
remembered
to be dark, entered with other police.  She did not
know his identity at the time but got to know later that Tolbadi was
the
person handling the plaintiff’s case. She did not remember
Tolbadi introducing himself as that was 8 years ago.  She
also
did not remember Tolbadi telling the plaintiff the reason for the
arrest, but could remember the question “
Where is the money
of the old age pension
?”
[30]
It was put to her that her evidence that the police
asked where the pension money was, was nonsensical because the
robbery was unsuccessful
and therefore no money had been stolen.
[31]
MacKlay testified that the plaintiff was her younger
brother and that she lived in a flat situated next to the
plaintiff’s.
On the day of the robbery she had heard
shots and quickly ran out, to check what was going on. The plaintiff
was in his room.
The night before he had been in the company of
Sidzumo when he came home and after they had heard the shots, she saw
Sidzumo.
She saw the plaintiff that morning, because when she
ran out the plaintiff came with the kettle to go and fetch some water
from
the tap. She told the plaintiff that she was going to Ikwezi to
go and see what was happening.  She went to Ikwezi with a lady

by the name,
No
buntu. On arrival at
Ikwezi they saw a lot of people, who told them about the robbery.
They went back home and told the plaintiff
of what had happened.
The plaintiff and Sidzumo had been sitting in their room and were
surprised by their account of the
robbery.  Sidzumo was about to
go to work because she started work at 11 o’clock.
[32]
While MacKlay was at her friend’s place, she
received a call telling her to come home quickly.  When she
arrived at home
she was told that there had been a lot of police
vehicles, but that they had left already.  Having been asked to
tell the
Court what she saw and not what other people told her, she
stated that on her arrival at her home there were four private
vehicles
looking for the plaintiff.  The drivers of these
vehicles said that they were detectives.  They did not say where
they
were coming from. When they said they were looking for the
plaintiff, she called him over the phone and asked where he was.

He said he was on his way after dropping Sidzumo off at work.
[33]
She and the plaintiff then went to Gugulethu Police
Station.  When they arrived there, they found the person who was
in charge
for the day. MacKlay told the official that the plaintiff
was being sought after by the police, but they were told that there
was
no case yet, he could go home
.
They then went home
after which nothing happened.
[34]
One Thursday night while they were asleep, police
arrived at their home.  One of the police was wearing a police
uniform, some
were wearing jeans and t-shirts and some had bullet
proof vests on.  They came and kicked the plaintiff’s door
open
and a lot of them entered the room.  As to what happened
next she could not say, but she could hear the plaintiff crying.

They stayed in that room for a period of almost an hour assaulting
the plaintiff.  Sidzumo was with the plaintiff inside his
room.
Police came out of the plaintiff’s room, carrying him.
They put him in a vehicle, but she did not know
whether the vehicle
was white because it was at night.
[35]
Having been asked to explain how the plaintiff was
being carried, she said that they were dragging him. She did not know
whether
he had handcuffs on, but his hands were at his back.
When asked if he was walking on his own feet, she stated that he was

not, they were dragging him.  He was put in the police vehicle
and then the police left with him.  Four days passed without
her
seeing the plaintiff.  They went to look for him at Bellville
South police station.  They were told that he was there,
but
that they would not be able to see him, because he was “
swollen
up
”.  They eventually saw him at Athlone F Court, but
did not have a chance to talk to him.  She went to see him at

Pollsmoor and he showed her his hands through the glass.  There
were marks on his hands.  He tried to show her his legs,
stating
that he had marks on his legs from being dragged, but she could not
properly see.  She met up with him again when
he appeared in the
Athlone Court.  She seemed to think that he stayed in custody
between 4 and 6 months.
[36]
Sibeko, also known as Power, testified that he was
arrested in Tambo Village, Manenberg, where he resides, for an
offence unrelated
to the Ikwezi robbery.  After arresting him,
the police stopped at NY […] Gugulethu, for about 2 to 3
minutes, after
which they came back with a person (who later became
known to him as the plaintiff).  They held this person upside
down -
with his head facing down and his feet up.  The
plaintiff’s pants were torn and looked like a skirt.  Police
were
assaulting him as they brought him to the vehicle, which was a
kombi.  They were swearing at him and also saying to him “…
you
said you did not know Xhosa…but we told you, you will know
Xhosa now
.”  They then threw the plaintiff inside the
kombi.  The police were also assaulting others that were inside,
that
had been arrested, but concentrated more on the plaintiff.  They
then placed a plastic bag over his head and tightened it,
preventing
him from breathing.  This was all being done quickly.  Those
arrested were then taken to Bellville South police
station.  Sibeko
was placed in the same room with the plaintiff.  The police
assaulted them in that room, asking them
to tell the truth about
robberies that they were allegedly involved in.  Sibeko had been
arrested in connection with a robbery
that took place in Paarden
Eiland.  There were about eight to ten police in that room,
taking turns to hit him and the plaintiff.
They also placed the
same plastic bags over their heads, suffocating them, while asking
the plaintiff about a white Jetta.
The plaintiff fainted whilst
they were pulling and holding him down.  They poured water on
him and put the plastic bag
back again.  They also asked the
plaintiff about a robbery at a centre in Gugulethu and about
firearms.  The plaintiff
denied any knowledge of these.
This carried on for more than three hours.  Sibeko decided to
admit to everything, because
of the unbearable nature of the
assaults.  The plaintiff later decided to do the same thing.
The assaults then stopped.
The plaintiff’s arms
were swollen because of the handcuffs. He, however, later stated that
the assault took time but
he could not say how long.  Sibeko
,
who was dizzy at that stage, was then taken to another cell
.
Two hours later the plaintiff was placed
with
him in the same cell.  Sibeko and his co-accused were taken to
court and the plaintiff was left in the cells.  They
met again
in Pollsmoor and that was the last time he saw the plaintiff.
[37]
In cross examination, Sibeko testified that he could
not recall whether the plaintiff had been handcuffed when the police
brought
him to the vehicle, as it was a long time ago.  As the
police brought the plaintiff to the vehicle, they were assaulting
him.
At that time, the plaintiff was saying “
sorry,
sorry
”, but he did not know what the plaintiff was saying
sorry for.  That is when the police made the remark that “
we
told you that you will be able to speak Xhosa
”.
Defendant’s
case
[38]
Tolbadi testified that he was a
Captain in the SAPS.  He is attached to the Directorate for
Priority Crime Investigation (‘DPCI’).
In 2008 he
was a Constable in the Organised Crime Unit.  On
20
November 2008 [later stated to be 21 November 2008],
at
approximately 12:30 am, he was in Gugulethu conducting a police
operation in respect of an incident that happened on 13 November

2008, involving the robbery of a pension pay out at Ikwezi in
Gugulethu.  The robbery took place at around 7:30 in the
morning.
[39]
On 20 November 2008 he had
received fingerprints linked to a vehicle that was involved in the
robbery, a white Volkswagen Jetta.
The white Jetta had been
reported stolen in the Claremont area and was found abandoned after
the robbery.  The fingerprints
found on a handle of the
passenger door belonged to a certain lady - Mpambo - who lived in
Gugulethu.  As soon as he received
the fingerprints report, he
informed his commander, Captain Jamjam.  Mpambo told him
[Jamjam] that she had been walking down
a street in Gugulethu early
in the morning, when a white Jetta stopped next to her.  She
opened the door and the driver, by
the name of Sammy [Pitso], the
plaintiff, asked where the Yellow Door Club was.  The Yellow
Door Club is opposite the Community
Hall where the robbery took
place.  Mpambo knew the plaintiff.  According to Tolbadi
their houses were a kilometre apart.
Captain Jamjam then
obtained a statement from Mpambo.
[40]
They then embarked on an
operation to arrest the plaintiff, with Jamjam in charge of the
operation.  They involved the National
Intervention Unit (NIU),
flying squad and the local police.  The function of the NIU is,
if there is a dangerous suspect such
as in cases of robbery, to
secure the premises, open them, arrest the suspect and call the
investigating officer
.
The
NIU is not involved in the investigation before or after the
operation.
[41]
On 21 November 2008 at
approximately 12 midnight they went to the plaintiff’s address.
There were about 14 uniformed police
officers, while Tolbadi and
Jamjam wore civilian clothes.  As soon as they arrived at the
premises, members of the NIU, who
were four in number, took the lead.
Tolbadi was inside the yard not far from the door.  The
NIU members knocked and
said “
Police,
open the door”
and it was
quiet.  They knocked again.  He does not know how they
opened the door.  One member was at the door and
the other three
members went inside the house.  Within a second, they called him
and Jamjam to come inside.  They found
the plaintiff sitting on
the bed with his hands behind his back, handcuffed.  The placing
of handcuffs by members of the NIU
was normal procedure.  Besides
the police and the plaintiff, no one else was in the room.  He
identified himself to the
plaintiff by showing his appointment
certificate and informed the plaintiff about the arrest and his
rights.  The plaintiff
wore short pants and a T-shirt.  He
took off the plaintiff’s handcuffs and told him to put on a
jacket and long pants.
After that he took him to the police
vehicle outside.  The vehicle was an unmarked Condor.  The
other police vehicles
that accompanied them were marked.
[42]
It took approximately two minutes
to enter the plaintiff’s room and take him to the police
vehicle.  The plaintiff was
never assaulted in his room.  He
did not notice any other police officer assaulting the plaintiff.
The plaintiff walked
to the Condor with him and his hands were
at the back as he was handcuffed.  There was another person,
whose name he could
not remember, in the Condor.  The plaintiff
was taken to Bellville South police station.  He processed the
suspect by
putting him on the books, taking his fingerprints and
taking a warning statement.  He then detained him and prepared
for the
court appearance.  He did not recall the plaintiff being
questioned about the Jetta and the robbery by any of the police
officers,
as the plaintiff was with him and Jamjam the whole time.
He denied that anyone assaulted the plaintiff in any manner
alleged,
or whatsoever, as the plaintiff was in his presence until he
was detained in the cells.  It was put to him that an allegation

was made by one of the witnesses that the plaintiff was hit with a
golf club.  He stated that he did not remember anything
about a
golf club.
[43]
After the plaintiff was detained,
he took him to the Athlone Court.  He could not remember when
that was.  The plaintiff
appeared fine; there were no bruises or
scratches on him.  He was referred to the occurrence book, where
Captain Wessels from
Bellville South police station made an entry on
21 November 2008 that upon detention the plaintiff was free from any
visible injuries.
According to Tolbadi, the charge
office commander would not detain him as a suspect if he complained
of any injuries.  He would
ask the Investigating Officer to take
him to hospital before he could detain him.  If the entry states
that the suspect is
free of visible injuries, then it shows that
there was no complaint.
[44]
Tolbadi opposed the plaintiff’s
application for bail, but bail was granted.  He never made a
statement regarding another
case that the plaintiff was involved in,
as alleged by the plaintiff.
[45]
At the time the plaintiff
appeared in court, there was another case pending against him,
according to his profile, and it entailed,
according to his
recollection, a firearm.  He did not know anything about charges
being withdrawn in the case involving the
firearm.  With regards
to the case of robbery, charges were provisionally withdrawn against
the plaintiff.  According
to the prosecutor, Advocate Mfeya,
there was a ballistic link: the firearm that was used in the pension
pay out robbery in Gugulethu
was also used in other robberies in
Grabouw, Mitchell’s Plain and the Eastern Cape, or
Johannesburg, if he was not mistaken.
Mfeya wanted to
centralise the cases because of the ballistic link.  He wanted
all the cases to run together with the
Western Cape case.
[46]
In cross-examination, Tolbadi
conceded that the fingerprints did not link the plaintiff to the
vehicle.  He also conceded that
only the name “
Sammy
”
appears in the statement taken from Mpambo, the name and surname
“
Pitso Leutlwetsi
”
do not appear.
[47]
He was just eight metres away
from the door at the plaintiff’s house when the members of the
NIU had gone into the plaintiff’s
room.  He could not see
how they opened the door as they were standing in front of it.  In
some cases that involve robbery
where a firearm was used, NIU would
use force to open the door.  He conceded that he did not know
what happened inside the
room when members of the NIU were there, as
he was 8 metres away.  There is no statement from the NIU
pertaining to how they
found and handcuffed the plaintiff.  According
to Tolbadi, this is because they simply enter the house and keep the
person
under control until the Investigating Officer is called,
whereupon he or she would take over.  It was only for few
seconds
that NIU members were alone in the room with the plaintiff.
He would have seen if anyone assaulted the plaintiff in his
presence,
as he was there immediately.  He conceded that he was
outside the room and could not comment about the allegation that the

plaintiff was assaulted inside the room during the period he was not
there.  He was, however, there quickly thereafter and
in his
presence, nothing happened.  He could not comment on the
allegation that the plaintiff’s pants were torn.  According

to him, the plaintiff walked normally when he was taken to the
vehicle and he was not bleeding.  He was with the plaintiff
the
whole time, along with Jamjam and other police officers and the
plaintiff was not carried to the vehicle.
[48]
It was put to him that the
plaintiff was granted bail on 2 February 2009.  He testified
that he would not dispute that if it
was written on the charge sheet.
It was put to him also that from the time Mpambo’s
statement was obtained, which was
11 o’clock in the morning,
there was enough time to obtain a search warrant.  To this he
responded by saying that the
statement was commissioned at 11
o’clock, but he only received it at 3 o’clock in the
afternoon, according to his recollection.
[49]
Mpambo was interviewed by Jamjam
in the morning, while he was out of office, following up on other
information regarding the robbery
case.  He got back to the
office at 3 o’clock.  That is when his commander, Jamjam,
told him to activate people
in order to arrest the suspect.  Jamjam
told him that the suspect is dangerous and that they must go and
arrest him.  They
arrested the suspect on the basis of Mpambo’s
statement.
[50]
After the lunch adjournment,
Tolbadi sought to rectify his earlier version by stating that they
had received information at night
that the suspect was at his house,
after which they went and arrested him.
During the day
they were busy with other things and therefore did not have time to
go and apply for a warrant of arrest.  Mpambo
pointed out the
suspect’s address to them
.  This had
not been mentioned during his examination in chief, and his answer to
this was that he was not asked.
[51]
He also stated that they did not search for firearms at
the plaintiff’s house; they simply went there to arrest him.
Later
he rectified that statement by saying that he and Jamjam
searched the plaintiff’s house for the firearm that had been
used
in the robbery, but found nothing.  He added again by
saying that the NIU also searched for an illegal firearm.  He
could
not comment as to why it was never put to the plaintiff that
his room was searched for a firearm.  It was also put to him
that the plaintiff never mentioned that his room was searched by the
police looking for a firearm.  Later on he stated that
it was
only he and Captain Jamjam who searched the room for a firearm.
[52]
The plaintiff was not pointed out, at an identity
parade, by a complainant in the robbery matter.  A second set of
fingerprints,
belonging to one Lwandiso Njineli (‘Njineli’),
were also lifted from the Jetta after the robbery, but that result
only
came in 2009.  A warrant of arrest was obtained in respect
of Njineli, albeit in 2009.  Tolbadi’s response to this

was that this route was not followed in respect of the plaintiff,
because he was not linked with the fingerprints in respect of
the
vehicles used in the robbery.  Mpambo was not arrested because
she was questioned and a detailed statement was obtained
from her.
[53]
They did not have information
that the plaintiff was planning to flee, but in a case like that they
would act immediately after
receiving information, as the suspect
could run away.  He did not have any reason to believe that if
the plaintiff was charged
for the offence, he would abscond.  He
informed the prosecutor that the ID parade was negative, but was not
sure was if the
plaintiff was in custody before or after the ID
parade.  He also could not recall the date upon which the matter
was withdrawn.
The issue of the pending case against the
plaintiff came after he was arrested for robbery and not before.
They do
not summons a suspect of an armed robbery.  They
never approached the plaintiff at his premises on 13 November 2008
(i.e.
the day of the robbery) as stated by his girlfriend and
belatedly by his sister.
[54]
Jamjam testified that he is a Lieutenant Colonel in the
SAPS, stationed at the Provincial Detectives office in Cape Town.  He

has been in the police service for 29 years.  In November 2008
he was a Captain stationed at the DPCI, also known as the Hawks.
He
knew about the robbery that took place at Ikwezi Centre in Gugulethu
on 13 November 2008.  He was the staff officer
in that section
for serious crime investigations and the Investigating Officer was
Tolbadi, who is now a Captain.  Their commander
during that year
was Colonel Manyana.  Tolbadi reported to him (i.e. Jamjam).
Tolbadi informed him that Mpambo’s
fingerprints were
obtained from a white Jetta that had been involved in the robbery.
He consulted with Mpambo on 20 November
2008.  Mpambo told
him that she got a lift in a white Jetta driven by a person known to
her as “Sammy”, on the
day of the robbery that happened
at Ikwezi in Gugulethu.  She said the driver of the vehicle was
alone and she sat in front
on the passenger seat.  Mpambo’s
fingerprints were lifted outside the vehicle on the left passenger
door.  She
informed him that the reason she got a lift was
because the driver of the vehicle was looking for directions to a
place called
Yellow Door.  She showed him the way to Yellow Door
and was dropped off on the way.  The driver then proceeded to
Ikwezi.
Mpambo told Jamjam that she knew “Sammy”
very well.  She even knew where he was
staying
and also knew that he was not working.  She mentioned that he
had a red motor vehicle.  He could not remember
who Mpambo was
referring to when she spoke about the owner of the red vehicle.  He
could not remember what “
Sammy’s” surname
was, he just remembered him as “Sammy”.  Mpambo’s
statement prompted him to
organise for “Sammy’s”
arrest for armed robbery.  The white Jetta made him link “Sammy”
to the
robbery, as information had been received that a white Jetta
was there during the robbery.  It was later found abandoned in

the vicinity of Mitchells Plain.  Operations to arrest suspects
were usually conducted during the early hours of the morning.
[55]
On 20 November 2008 from the time of receiving the
statement from Mpambo, at 11 o’clock in the morning, to the
time that the
plaintiff was arrested, they were busy with the
inspection of the docket as well as correspondences and arranging
investigations
and consultations relating to this and other matters.
The Ikwezi robbery was a big one and it involved a lot of
people.  The
investigations took about three hours.  The
police were taken to “Sammy’s” house by Mpambo.  He
asked
for backup from the NIU, because firearms were used during the
robbery and a lot of shooting took place.  The NIU is
responsible
to cordon off the area and to make it safe.  Tolbadi
was also there.  After Mpambo pointed the address out, the NIU
knocked
and opened the door; they then signalled to him and Tolbadi
to enter the house.  This was done in a matter of seconds.  He

and Tolbadi entered the house and found the suspect inside the room.
There was no one with him in the room.  The suspect
was
already cuffed.  Tolbadi identified himself by means of his
appointment certificate and informed the suspect of his rights
and
that he was being arrested for armed robbery.  They checked the
room but there was not much there.  They told the
suspect to put
on his pants.  They were in the room for just a few minutes.  He
could not dispute that the police kicked
down the plaintiff’s
door, as he was not the one who was knocking there.  He could
not say whether the police identified
themselves before the door was
kicked open as members of the NIU were in front.  He was asked
if any smacking, kicking, punching
or suffocating with a plastic bag
took place in his presence, inside the plaintiff’s room, to
which he testified that none
of these things happened.  After
informing the plaintiff of his rights and the reason for his arrest,
he was placed in a Condor
vehicle.  The plaintiff walked with
Jamjam, Tolbadi and another colleague.  His hands were in
handcuffs.  There
was another suspect in the Condor.  He
did not recall the suspect’s name.  He knew nothing of the
plaintiff being
carried upside down from his house to the Condor or
of him being mocked as stated by Sibeko.  He denied that the
plaintiff
was unconscious by the time he was taken to the Condor and
only regained his consciousness once he was inside the Condor.
[56]
The plaintiff was then taken to the Bellville South
police station for detention.  He did not know of and could not
comment
on the alleged assault at the Bellville police station.
After the plaintiff was handed over to the police station that
was
the last time Jamjam was involved in the case.  From the
time the plaintiff was brought to the police station until he was

handed over to the police for detention, neither he (Jamjam), Tolbadi
nor any other police officer assaulted him.  He was
there when
the plaintiff was taken to the police cells.  There was no sign
whatsoever of the plaintiff having been assaulted.
He was with
the plaintiff from the time of his arrest up until he was booked for
detention inside the police station.  He
never knew the
plaintiff prior to his arrest.
[57]
In cross examination, he conceded that he considered
Mpambo a suspect when her fingerprints were found and also conceded
that she
was not arrested.  His explanation was that she was
questioned about the fingerprints and gave an explanation and
following
that she was no longer considered a suspect.  She just
mentioned “Sammy” and no surname.  She mentioned his

address and all the details about him.  He did not probe why
Sammy would ask for directions to Yellow Door when both he and
Mpambo
lived in Gugulethu and knew each other.  He rectified his
earlier statement regarding the vehicle being recovered in
Mitchells
Plain, by stating he was not sure of where the vehicle was recovered.
He also could not recall if it was recovered
the same day as
the robbery at Ikwezi.  The operation was also to arrest other
suspects.  Another suspect was arrested,
although he could not
recall the circumstances of that arrest.
[58]
They arrived at the suspect’s address at the same
time as the NIU.  He, Tolbadi and a member of the NIU were first
taken
by Mpambo to the address to look at the layout before they
started with the operation.  He would dispute that a person in
the Condor would be able to see what was happening at the plaintiff’s
house, because the vehicles were parked a little further
from the
house where they operate.  He could not dispute that the other
suspect they had in the Condor was named Power.  Power
would
have been able to see the plaintiff getting in the Condor, because he
was already inside the Condor.  He could not dispute
that the
plaintiff’s sister had a flat situated next to the plaintiff’s,
but he never saw her that day.  The distance
between where he
and Tolbadi stood, and the door of the room, where the members of the
NIU were, was about six to seven metres.
He conceded that he
could not see what was happening inside, as he was standing outside
at that stage.  He could not
say whether members of the NIU told
the plaintiff that they were placing him under arrest.
[59]
When it was put to him that he could not argue with
what the plaintiff’s sister had said when she testified that
she heard
a commotion at the plaintiff’s place, which is next
to hers, he answered that he would dispute that, because they were
not
outside for too long.
Members
of the NIU lifted the bed to check for weapons.  He and Tolbadi
were already there also when this was done.  He
was not sure
whether any member of the NIU deposed an affidavit to that effect.
According to his knowledge there had been
more than one vehicle
involved in the robbery.  He was not sure of the make of the
other vehicle.  He conceded that the
fingerprints recovered did
not link the plaintiff to either of the two vehicles.  When
asked why they did not apply for a
search warrant before searching
the premises of the plaintiff, he testified that he was very busy
that day preparing for this case
and it slipped his mind to delegate
to some of his colleagues to apply for the search warrant.  The
same answer was given
in respect of the warrant of arrest.
[60]
At this point the defendant
applied for leave to amend its plea, replacing the reference to
search warrant with warrant of arrest.
The plaintiff had no
objection to this amendment and it was allowed.  Jamjam conceded
that the statement by Mpambo did
not mention any role that this
“Sammy” played in the commission of the robbery nor did
it mention that he was involved
in any way in the robbery.  According
to him, there was no need to treat the plaintiff in the same manner
as Mpambo, by calling
and questioning him, because there was a
prima
facie
case that he had been driving
a vehicle that had been hijacked.  He denied that the police
acted irrationally.
[61]
Mfeya testified that he was
currently employed by the state as a magistrate, since 4 November
2013.  Before that he worked
as a prosecutor until 2010.  He
became involved in the prosecution of the robbery case against the
plaintiff, according to
his re-collection, during the bail
application in the Athlone Court.  He might have proceeded with
the case until it was sent
to the Regional Court in Wynberg.  Mfeya’s
evidence was largely not relevant to the issues to be determined by
the Court,
and a great deal of his cross examination was very much
based on suppositions and general procedure. That much was confirmed
during
argument by both counsel who submitted that nothing turned on
Mfeya’s evidence.  Mfeya could also not recall a lot of

detail about the case.
Discussion
The
application for leave to amend the plaintiff’s particulars of
claim
[62]
At the close of the defendant’s
case the plaintiff sought leave to amend his particulars of claim by
basically inserting the
words: “
further
detained him until he was released on bail
”
at the end of paragraph 3.  The original paragraph 3 read as
follows:
“
3.
On or
about 20 November 2008 and at Ny (sic) 27, No.[…], Gugulethu
at approximately 12h30 members of the SAPS forcefully
entered the
house without a search warrant and unlawfully assaulted and arrest
(sic) him. The members of the SAPS unlawfully and
wrongfully
assaulted Plaintiff in the presence of his family and his girlfriend,
by handcuffing him.
3.1
Within the
jurisdiction of the above honourable court, the plaintiff was
violently assaulted and unlawfully arrested by the group
of police
officers without a warrant of arrest.”
[63]
I refused the application to
amend the particulars of claim and here are the reasons.  Based
on the pleading quoted above,
the issues brought before the Court
were unlawful arrest and assault.  At the outset and throughout
the leading of the defendant’s
witnesses’ evidence, Mr
VDS, appearing for the defendant, objected to the line of questioning
adopted by Mr G at some stages,
because it sought to touch on further
detention which, according to him, was not pleaded and
consequentially would be prejudicial
to the defendant.  Mr G
told the Court that the plaintiff differed with defendant in his
interpretation of the pleading in
that, according to him, further
detention formed part of the cause of action already pleaded.  He
held a view that it was
the police that set the wheels in motion by
arresting the plaintiff and he was incarcerated because of them, they
were therefore
responsible for his detention.  Mr G advised the
Court that this would be the plaintiff’s argument at the end of
the
case.  The Court allowed the plaintiff’s counsel some
latitude in cross examining witnesses based on this alleged
understanding
of the law, which was to be argued at the end of the
case.  Mr G then vacillated between abandoning this line of
questioning
to attempting to pursue it again in an incomprehensible
manner.
[64]
Be that as it may, if one has
regard to the stance adopted by the plaintiff when he was warned
about a case of further detention
not being pleaded, and him seeking
leave of the Court to allow evidence to be led, under the pretext
that it was relevant to the
case of arrest presented before the Court
and which was to be argued at a later stage, the introduction of the
amendment, right
after the last witness for the defendant was
excused, without any hint beforehand, led to one conclusion: that the
plaintiff ‘
wanted to have his
cake and eat it
’.  This,
in my view, equated to conducting a trial by ambush and was unfair to
the other party.
[65]
Witnesses had come and gone, and
gave evidence on the basis of the case presented.  At no stage
did Mr G indicate, or even
hint, that the plaintiff would seek an
amendment to the particulars of claim.  He was warned about the
case pleaded throughout
the leading of the witnesses’ evidence,
particularly those of the defendant.  He, however, still
maintained that the
plaintiff saw the cause of action pleaded as
inclusive of detention, even beyond first appearance in court.
[66]
It was further surprising that
the application to amend was dated 14 February 2017, when it was only
served and filed on 24 April
2017, which was the last day of the
hearing of evidence.  Furthermore, and most importantly, this
application was not accompanied
by any affidavit that would explain
why it was not done in 2011 when the summons was issued, or shortly
thereafter, or at any stage
before the commencement of the trial or
before or during the leading of evidence.  The amendment
comprised details which were
known to the plaintiff from the time
that he instituted action in 2011 and despite Mr G’s line of
cross examination in November
2016, the application to amend was only
brought in April 2017.  This is significant as will presently
become clear.
[67]
The refusal of the amendment was
not only based on the tardiness on the part of the plaintiff in
handling the amendment, but on
other considerations as well.  I
was persuaded by the argument presented on behalf of the defendant
that the amendment sought,
whilst appearing straightforward and
presenting no harm, would have ramifications to the case for the
reasons outlined as follows.
[68]
First, it was argued on behalf of
the defendant that further detention amounts to a separate cause of
action and if that were so,
the claim would have prescribed, in that
it arose in 2008.  In
Rustenburg
Platinum Mines Ltd v Industrial Maintenance Painting Services
CC
[2009] 1 All SA 275
(SCA) it was held at para 13 that: “
[a]n
amendment is no doubt permissible, provided that the debt which is
claimed by way of the amendment is the same or substantially
the same
debt as originally claimed
”.
The Court, quoting a passage from the decision of
Evins
v Shield Insurance
1980 (2) SA 814
(A), went on to state at para 14:
“
Where
the plaintiff seeks by way of amendment to augment his claim for
damages, he will be precluded from doing so by prescription
if the
new claim is based upon a new cause of action and the relevant
prescriptive period has run, but not if it was part and parcel
of the
original cause of action and merely represents a fresh quantification
of the original claim or the addition of a further
item of damages.”
[69]
In this case the plaintiff did
not seek an amendment that would effectively increase his quantum or
amount to fresh quantification
thereof, in respect of the unlawful
arrest and assault; such an amendment would in those circumstances be
permissible.  He
sought to augment his claim for damages by
introducing another cause of action.
[70]
Even though the detention of the
plaintiff after his first court appearance had its genesis on the
same date of the arrest and alleged
assault, it does not necessarily
follow that he can automatically claim for unlawful detention after
the period of his first appearance
in court, as well as for malicious
prosecution (although it is common cause that the latter was not
being claimed).
[71]
In the recent decision of
Minister of Safety and Security v
Magagula (991/2016)
[2017] ZASCA
103
(6 September 2017), at para 13, the Court held that: “
[t]he
two periods of detention – the period until the first
appearance in court and the period from first appearance until

ultimate release, must be considered separately
”.
This is premised on the fact that the authority to detain the
suspect further after his or her first appearance in
court is within
the discretion of the court, which is exercised independently by the
court.  (See
Magagula
supra at para 13.
)
According to the Court in
Magagula,
at paras 14 and 15, the case for
unlawful detention for the period before the first appearance in
court was dependent upon the defendant
failing to establish that the
arrest was lawful, whilst the detention after the plaintiff’s
first appearance in court is
dependent upon the lawfulness or
otherwise of the magistrate’s orders.  The court observed
that the magistrate is not
a servant of the Minister of Safety and
Security and that there was no evidence in that particular case that
the magistrate had
behaved in an unlawful manner.  Fundamentally,
the court held that “
[n]o
liability for his conduct is attributable to the appellant [i.e.
Minister Safety and Security]
”.
[72]
As in this case, the plaintiff,
by arguing against the lawfulness of his further detention relied on
the police’s failure
to perform a public duty, which was
wrongful.
Magagula
relied on
Woji v Minister of Police
2015 (1) SACR 409
(SCA), at para 28,
and
Zealand v Minister of Justice and
Constitutional Development and Another
[2008] ZACC 3
;
2008
(4) SA 458
(CC), at para 53.  The court in
Magagula
found that it did not need to decide whether or not reliance on that
submission was well-founded as the cause of action was neither

pleaded, nor was evidence led on this issue.
[73]
In the present case, further
detention was not pleaded and the defendant did not lead evidence
about the nature of the evidence
presented at the bail hearings upon
which the court refused or granted bail.  Mr G attempted to
elicit evidence from the defendant’s
witnesses in cross
examination.  Even so, no evidence had been led to suggest that
the plaintiff’s detention after the
first appearance in court
was arbitrary or without just cause.  The only evidence
presented was Tolbadi’s opposition
to the granting of bail.
[74]
As this was a schedule 6 offence,
the onus would have been on the plaintiff to put facts before the
Magistrate’s Court as
to why he should have been granted bail.
It is apparent from the plaintiff’s evidence that he was
legally represented
at the time, first by Ms Williams and later by
advocate Pienaar, and at some point was indeed granted bail.  These
legal practitioners
that represented him, apart from the fact that
the issue of further detention was not pleaded, were not called to
give clarity
regarding the postponements, that is if there was any
sinister reason surrounding those and the circumstances of how the
bail application
was handled.  If the plaintiff, owing to him
being a layperson, lacked understanding of the court processes and
the law, there
was no reason why those who represented him could not
have been approached by his current legal representatives and called
to shed
some light on his behalf.  The record of the bail
proceedings was also not referred to either.  Precisely what
occurred
and at what time during the period up until the plaintiff
was granted bail, therefore, remains speculative.  Without
evidence,
it cannot be assumed that the plaintiff’s further
detention until his release on bail was arbitrar
y.
[75]
Mr G took witnesses through what
was said to be portions of a court book, detailing postponements.  He
seemed to suggest that
there was no clarity as to whether a bail
application was heard and whether the plaintiff was ever granted bail
and when that was.
Tolbadi and Mfeya could not recall specific
details about the bail application, reasons for postponements and
what transpired
specifically in this case.  They simply gave
evidence about general practice.  Mr G speculated that bail
might have been
granted in July 2009, as that was the only mention of
bail in the court book.  That seems to be contradicted by the
evidence
of the plaintiff, who suggested that he was released on bail
in April 2009.  Much of the cross examination of the defendant’s

witnesses was based on speculation and hypothesis without any facts
to back it up.
[76]
In sum, on this issue,
Magagula
supra is clear authority for the
proposition that further detention after the first appearance in
court is a separate cause of action
which ought to have been pleaded
separately.  (Also see
Ngcobo v
Minister of Police
1978 (4) SA 930
(D) at 932).  That being the case, it must follow that the
defendant’s contention that the claim has become prescribed
is
good and on that basis the amendment could not be allowed.
[77]
Furthermore, as I have found, no
evidence was led to suggest that the police officers neglected to
and/or provided the prosecutor
and ultimately the magistrate with
information that led to the refusal of bail and that consequently the
magistrate’s orders,
by keeping the plaintiff in custody, until
his release on bail, were unlawful.  It is worth noting that the
plaintiff, in
any event, did not plead in the intended amendment that
it was the police’s negligent or malicious conduct which
resulted
in his continued incarceration after his first court
appearance.
[78]
Additionally, even though the
plaintiff presented no affidavit about the intended amendment, the
defendant filed an opposing affidavit
of one Petrus Labuschagne
(“Labuschagne”), who is a legal official in the employ of
the defendant.  Labuschagne
stated that because of the
narrowness of the plaintiff’s claim, the defendant confined
itself to the allegations pleaded
in the particulars of claim.  As
a consequence, it neither prepared a case in defence for an alleged
unlawful detention nor
did the defendant consult witnesses in that
regard, it also consequently did not lead evidence in that regard.
The defendant
would be prejudiced if the amendment were to be
allowed, as its case would have to be re-opened. The plaintiff would
have to re-open
his case to lead relevant evidence.  The
defendant would then have to be granted an opportunity to
cross-examine the plaintiff.
The defendant would also have to
re-open its case in order to lead exculpatory evidence, which would
mean recalling of witnesses,
tracing of other witnesses that were
involved in the plaintiff’s criminal investigation and
prosecution eight years ago,
who were no longer available to the
defendant and which the defendant had no idea where to start looking
for in order to consult
with them.  It would further have to
track down documents which were generated eight years ago.  The
defendant had encountered
extreme difficulty in tracing the relevant
criminal court documents and feared that the same had been lost.
Labuschagne’s
affidavit was uncontested by any evidence
from the plaintiff.  Mr G simply presented argument against it.
[79]
Having applied my mind to all
these issues, it was clear that allowing the amendment would
effectively result in a full-blown new
trial.  I therefore was
of the view that the plaintiff had not provided any reason for this
Court to apply its discretion
in his favour by allowing the
amendment.
Unlawful
arrest
[80]
The issue to be determined is
whether the arresting officer
, Tolbadi,
had a reasonable suspicion that the
plaintiff had committed an offence as stipulated in s 40 (1) (b) of
the Criminal Procedure Act,
51 of 1977 (‘the
Criminal Procedure
Act&rsquo
;).
[81]
That section provides thus:
“
(1)
A peace officer
may
without warrant
arrest any person –
…
(b) whom
he reasonably suspects of having committed an offence referred to in
Schedule 1, other than the offence of escaping from
lawful
custody...”
(Underlined for emphasis)
[82]
An important consideration from
this provision, which is often missed, is that the arresting officer
is not obliged to arrest, but
has a discretion to do so once all the
prerequisites of
s 40
(1) (b) are present.
[83]
The onus to prove the lawfulness
of the arrest is on the defendant, the arrestor.  The test
whether the peace officer reasonably
suspects a person to have
committed an offence is an objective one. It is whether the police
officer has reasonable grounds for
his or her suspicion.  It has
been held that “
[s]uspicion in
its ordinary meaning is a state of conjecture or surmise where proof
is lacking; ‘I suspect but I cannot prove’”
.
(See
Shabaan Bin Hussien and
Others v Chong Fook Kam and Another
[1969]
3 ALL ER 1627
(PC), quoted with approval in
Duncan
v Minister of Law and Order
1986 (2)
SA 805
(A) at 819 I.)
[84]
Grounds of suspicion are
therefore not limited to those that can be proved in court.
“
It
was conceivable that a reasonable suspicion can be formed ‘where
a person has been seen at the scene of a crime and upon
being
questioned gives a false alibi or refuses to answer questions.’
Arrest on reasonable suspicion can be made even if
the intention of
the arrestor is first to conduct an investigation before charging a
suspect or to question suspects or to test
the alibi or place the
suspect in identification parade.”
(See
Mdlalose and Another v Minister of Police and Another
[2016] 4
All SA 950
(WCC) at para 59 citing
Mawu and Another v Minister of
Police
2015 (2) SACR 14
(WCC) at para 32 and
Duncan v Minister
of Law and Order
1984 (3) SA 460
(T) at 468 E-G)
[85]
Whilst it is necessary for the
police to act promptly in order to avoid losing their suspect, it was
held in
Duncan v Minister of Law and Order
(1984) supra
at 466 E that
the police officer “
should
keep an open mind and take notice of every relevant circumstance
pointing either to innocence or to guilt”.
[86]
Turning to the present matter.
The starting point for me is that the right to freedom is a
fundamental right jealously guarded
in the Constitution of the
Republic of South Africa, Act 108 of 1996.  It is a right that
is not only to be observed but also
respected - arresting and
detaining an individual must hence be done in accordance with the
law, with the appreciation that a person’s
liberty and dignity
is intruded upon by being arrested.  It is therefore crucial
that when an arresting officer exercises
his or her powers to arrest,
he or she must do so scrupulously, lawfully and with great
respectability.  It is more so when
the arrest is conducted
without a warrant.  As Jamjam testified, these operations are
often conducted during the early hours
of the morning when
individuals are least suspecting and possibly sleeping.  The
arrests would possibly not be the calmest.
The arrest in this
case was also executed during the early hours of the morning whilst
the plaintiff was sleeping.
[87]
Whilst the investigating officer
in this case was Tolbadi, it was Jamjam who interviewed and obtained
a statement from Mpambo, which
formed the basis of the plaintiff’s
arrest.  He was also the person who decided that the operation
to arrest the plaintiff
must be arranged.  Tolbadi stated the
following in cross-examination:
“
The
statement was certified by Captain Jamjam the time that you were
looking for it was 11 o’clock, the same day, it was 11
o’clock.
I go (sic) through to the statement after I was back in the office.
It was whereby my commander inform (sic) me
lets activate the people
so we can just arrest the suspect.”
[88]
Jamjam too stated the following:
“
In
my mind
it was that
the motor vehicle that was recovered, since it was used in that
particular armed robbery,
therefore
I linked the driver to that armed robbery
…
I then,
after I got the information from the lady (sic)
I
then tried to organise a follow-up   and the arrest of
that
, the mentioned
guy that he (sic) was with – she was with …”
(Underlined for emphasis)
[89]
Whilst Tolbadi went through the
statement when he came back to the office, it appears that it was
Jamjam who formed the suspicion
and advised Tolbadi that they should
effect the arrest.
(
Ralekwa v Minister of Safety and
Security
2004 (1) SACR 131
(T) at para 14.)  Having said
that, I am willing to assume that having read Mpambo’s
statement on his own, Tolbadi agreed
with Jamjam and did not simply
follow his instructions.
[90]
To decide on reasonable
suspicion, it is worth observing the remarks made by Jones J in
Mabona and Another v Minister of Law
and Order and Others
1988 (2) SA 654
(SE) at 658 E-H, also cited in
Mbotya
v Minister of Police
(1122/10)
[2012] ZAECPEHC 43 (10 July 2012) at para 25, where the Court held:
“
The
test of whether a suspicion is reasonably entertained within the
meaning of s 40 (1) (b) is objective (S v Nel and Another
1980 (4) SA
28
(E) at 33H).  Would a reasonable man in the second
defendant’s position and possessed of the same information have
considered
that there were good and sufficient grounds for suspecting
that the plaintiffs were guilty of conspiracy to commit robbery or
possession
of stolen property knowing it to have been stolen?  It
seems to me that in evaluating his information a reasonable man would

bear in mind that the section authorises drastic police action.  It
authorises an arrest on the strength of a suspicion and
without the
need to swear out a warrant, ie something which otherwise would be an
invasion of private rights and personal liberty.
The reasonable
man will therefore analyse and assess the quality of the information
at his disposal critically, and he will
not accept it lightly or
without checking it where it can be checked.  It is only after
an examination of this kind that he
will allow himself to entertain a
suspicion which will justify an arrest.  This is not to say that
the information at his
disposal must be of sufficiently high quality
and cogency to engender in him a conviction that the suspect is in
fact guilty.  The
section requires suspicion not certainty.
However, the suspicion must be based upon solid grounds.
Otherwise, it will
be flighty or arbitrary, and not a
reasonable suspicion.”
[91]
I previously stated, as per the
judgment of
Mdlalose
supra
,
that the above passage is no authority for the proposition that every
time the police officer is seized with information about
a suspect,
that information should be analysed before any arrest is
effected,
as s 40 (1) (b) does not say so.  The
question is what would a reasonable man, possessed of the information
as in a particular
case, have done.  It may be that in some
cases the information is sufficiently reasonable for a police officer
to form a suspicion
that a Schedule 1 offence has been committed, and
act on it, requiring no further assessment.  It may also be, in
other cases,
that the information is so far removed from the
commission of the crime, or so scant or is insufficient, such that a
reasonable
man ought to look at it critically before taking any
action to arrest a suspect, more so when there is sufficient time in
which
to do so.
[92]
In the present case, Tolbadi and
Jamjam relied on a statement made by a person whose fingerprints were
found on a stolen vehicle’s
passenger door, which vehicle they
allege was used in the commission of the robbery and found abandoned
later on.  It is perhaps
crucial to analyse the actual content
of Mpambo’s written statement.  Its crucial part states as
follows:
“
On
the 2008/11/13 at about
06H55
I woke up from my home and proceeded to (sic) Ikhwezi Community
Centre.  While I was on the way to Ikhwezi Community Centre
just
after about 500 meters from my home
,
a white motor vehicle Jetta stopped next to me, and the driver asked
the direction going to the yellow door.
I told the
driver of the motor vehicle white Jetta who was alone in the car that
the yellow door is in my direction to Ikhwezi Community
Centre.  The
driver droped (sic) me into (sic) the corner of Ny […] and Ny
[…] next to the circle and further
proceeded to the direction
of Ny […] straight.  As I came to the yard I didn’t
see the people outside Ikwezi.
I asked the security guard who
then said that the people are making a line (sic) inside the yard.  I
then joined the
line for the grant inside.  My friend called
Zukiswa Mfanana came and also the joined me into the line.
Belinda
Landingwe a councillour (sic) at the street ward 41 came inside the
yard also went straight to her office.  After about
30 minutes
later I then heard some gun sound and then later we dispersed all
over the yard running from gun shots, to the kitchen.
After
about 30 minutes we then came out from the kitchen and then saw
Belinda also frightened about the incident.
We asked a
lift from Belinda to go back to my home.
I then noticed
that the driver who was carrying me to the Ikwezi Community Centre
driving a white Jetta was “
SEMI” who is residing at
Number  NY […] NUMBER […]
.  He was
wearing a leather jacket black in colour and having black or navy hat
and navy Jeans.  According to my knowledge
SEMI is unemployed
and owning a red golf.
…” (Underlined for emphasis)
[93]
It is not clear from the evidence
of the defendant’s witnesses how the white Jetta was used in
the commission of the robbery
at Ikwezi.  What is apparent, is
that the Jetta which had been stolen in Claremont on 31 August 2008,
was found abandoned.
According to Tolbadi, it was found not far
from the crime scene.  He did not, however, state exactly where
that was,
whether in Gugulethu or in another area.
[94]
Jamjam initially suggested that
the vehicle was found in the Mitchell’s Plain area, but later
stated that he was not certain
of where and when (i.e. on which date)
it was discovered.  He also testified that there was information
that a white Jetta
had been involved in the robbery.  As to how
it was allegedly involved and based on whose information, has not
been placed
before me.
[95]
It appears that another vehicle,
an Opel Corsa, was also discovered.  It is clear from some of
the written statements obtained
from the docket, which have been
submitted as part of the trial bundle, that an Opel Corsa was used as
a getaway vehicle.  There
is one particular statement made by a
certain Mncedisi Mkrwele, taken on the same day of the incident,
which mentions that the
deponent saw armed men jumping into a white
Opel Corsa, driving away from the scene and shooting.  There is
no mention of
a white Jetta and how that featured in the robbery
itself.  Another witness statement, albeit taken in 2010, also
mentions
a silver BMW as a vehicle with which other robbers arrived.
Again this statement refers to the robbers jumping into a white

Opel Corsa which was followed by a BMW.  I am aware that
the
latter statement was taken in 2010 and would not have been part of
the information relied on to effect the
plaintiff’s
arrest, the crucial issue about it, however, is that it contains
information confirming the content of a statement
taken on the day of
the incident and significantly makes no mention of a white Jetta and
how it was involved in the robbery.  Going
through these
statements was my attempt at trying to put the pieces together.
[96]
I am acutely aware of the fact
that the docket may be incomplete, however, the missing detail was
not fleshed out in evidence.  I
would have wanted to know how
the Jetta featured in the picture.
[97]
Whilst both Tolbadi and Jamjam
mentioned that the white Jetta was involved in the robbery, the
manner in which it was used and whether
it was seen by the witnesses
at the scene of the crime is not clear.  The detail such as
whether its occupant(s) were seen
alighting from, travelling in or
escaping from the crime scene in a vehicle that fitted the
description of that which was later
found abandoned, is not clear.
[98]
That information is important, in
my view, because it would be useful in linking the Jetta, hence the
driver of the vehicle, from
whom Mpambo received the lift, to the
robbery at Ikwezi, because Mpambo’s statement simply stated
that the driver who gave
her a lift, dropped her and then proceeded
to the direction of NY[…].  Mpambo did not mention in the
statement how
far was she dropped from Ikwezi, whether the vehicle’s
direction as it proceeded went past Ikwezi and which direction was

NY[…].  This was not clarified in evidence either.  Apart
from “Sammy” being mentioned as a driver
of a white
Jetta, which was later abandoned, the role of the Jetta in the
robbery is not explained or at least not apparent from
the witness
statements I have perused.
[99]
On the face of it, it would seem
reasonable for the police officer to act on the basis of the
information that a suspect was seen
driving a stolen vehicle which
was later found abandoned.  The plaintiff was, however, not
arrested and charged for being
in possession of a stolen vehicle or
theft, but for the armed robbery that took place at Ikwezi, hence the
involvement of a heavyweight
operation.  To decide the matter on
the basis of suspicion relating to theft of the motor vehicle would
otherwise be unfair
to the plaintiff because that was not the
justification for the arrest.
[100]
The information that the police
had in relation to the driver of the white Jetta’s involvement
in the robbery at Ikwezi contained
loopholes, in my view.  It
cannot be assumed that the Jetta was a getaway vehicle.  Suspicion
might be that it was, but
that suspicion must be based on reasonable
grounds. It seems to me because of the insufficiency of the
information, the arresting
officer should have been more perceptive
instead of simply ordering an operation to arrest an individual in
the early hours of
the morning, whilst sleeping, an operation which
is highly invasive and humiliating.  As De Vos J put it in
Ralekwa
supra, at para 10:
“
Arrest
without a warrant is the most oppressive means of initiating a
prosecution.  Although it has been pointed out that personal

freedom is a right which has always been jealously guarded by our
Courts, in general, it can be said that the enquiry into the

lawfulness of a warrantless arrest tends to end once the
preconditions for the exercise of the power, namely the
jurisdictional
facts, have been found to exist.”
[101]
A fingerprint expert obtained
another set of fingerprints, belonging to Njineli, from the Jetta.
It appears that whilst Njineli’s
fingerprints were lifted
on 13 November 2008, according to Tolbadi the results were only
received in 2009.  It is not clear
why that was so.  Tolbadi
conceded that when arresting Njineli they obtained a warrant of
arrest, his response as to why same
was not applied to the plaintiff
was that the plaintiff was not linked with fingerprints.
[102]
It does further present a concern
that the police had approximately 13 hours from 11.00 in the morning
of 20 November 2008 to after
12 midnight on 21 November 2008, in
which to assess the information obtained from Mpambo, and obtain a
warrant of arrest.
Their failure to do so is attributed to them
being very busy with investigations of this and other cases.
Jamjam testified
that applying for a warrant slipped their minds.
This evidence is r
ather disconcerting.
[103]
Tolbadi gave a further
contradictory version that they obtained information at night that
the plaintiff was at his residence and
could not apply for a warrant
then and he did not know that there could be a magistrate on stand-by
at that late hour.  This
contradicts his earlier evidence and
Jamjam’s testimony that the operation was organised after the
statement was obtained
and when Tolbadi came back to his office in
the afternoon of 20 November 2008.
[104]
In the circumstances, a number of
options were open to the police before deciding on embarking on the
drastic exercise of depriving
someone of his liberty without a
warrant in the manner they did.  This issue really goes to the
exercise of discretion more
than a question whether the information
obtained was sufficient to form a reasonable suspicion.  This is
so because the s
40 (1) (b) does not oblige the police to arrest upon
forming a reasonable suspicion, it allows for discretion to be
exercised.
[105]
It is also worth noting that
Mpambo herself was not arrested, but called for questioning, which
approach is, in my view, appropriate
because she may have had an
innocent explanation as to why her fingerprints were on the vehicle.
A suspicion, that she had
committed an offence may not, without
more, be reasonable, simply because of the presence of the
fingerprints on the vehicle.
[106]
In light of the gaps I have
outlined, I am of the view that the information the police possessed
fell short of the objective test
required prior to
effecting
an
arrest without a warrant.
Assault
[107]
On this claim the onus to
establish the assault, and damages related thereto, is on the
plaintiff.  The plaintiff testified
that force was used to
handcuff him.  Handcuffs are used to try and subdue the
arrestee.  The plaintiff testified that
his hands were swollen
because of the handcuffs.  He further testified that he was
assaulted by being slapped, kicked and
having a plastic bag placed
over his head in order to suffocate him.
[108]
In his particulars of claim, the
plaintiff pleaded that he was physically pulled from the bedroom by
the police officers, dragged
by the neck, whilst others were
suffocating him with a tyre tube.  He further alleged that,
whilst in the police cells, he
was denied medical assistance by one
of the officers in charge, despite being in severe pain and bleeding.
[109]
His evidence largely differs with
what is contained in his particulars of claim.  Nowhere in his
evidence did he state that
he was dragged by the
neck whilst
others
suffocated him with a tyre tube.  I
accept that there might have been an error regarding the use of the
word ‘tube’,
as the plaintiff stated that the plastic
bags that were used were referred to ‘tubes’.  The
plaintiff, however,
did not ask for an amendment of the allegation
relating to a ‘tyre’.  He further did not testify
that while in
the police cells, he was denied seeing a doctor whilst
bleeding.
[110]
The plaintiff conceded that he
did not sustain any visible injuries from the assault, apart from the
injury on the wrists caused
by handcuffs, but Sidzumo, however, spoke
about the plaintiff bleeding from the mouth, top of the eye and
having injuries on his
arms and legs.  His sister also spoke
about injuries on the arms and legs.  Sibeko also testified that
the plaintiff
was bleeding.  Sidzumo also testified that the
plaintiff was hit with a golf stick, something the plaintiff never
mentioned.
[111]
These three witnesses also gave
different versions of how the plaintiff was taken to the police
vehicle.  At one stage, Sidzumo
testified that he was carried,
then she said that he was dragged.  According to MacKlay, he was
dragged, while Sibeko on the
other hand, stated that the plaintiff
was held upside down and was being mocked as he went to the vehicle
and spoke to the police
along the way.  This is contrary to the
plaintiff’s evidence that he was unconscious after he was
beaten and suffocated
in his room.  According to him, he
regained consciousness inside the Condor.  The evidence of the
plaintiff’s witnesses
gave an impression of exaggeration.
Sidzumo and the plaintiff were consistent about the plaintiff
being kicked and slapped
through his face, the plaintiff, however,
could not explain how it was possible that he could be kicked on his
stomach and chest
whilst standing, as according to him the police had
ordered him to stand when they entered his room. Sidzumo on the other
hand
testified that the plaintiff had been sitting on the bed when
the police hit him until he fell to the ground. MacKlay and Sibeko

did not see the assault in the room.  MacKlay simply assumed
that the plaintiff was being assaulted when she heard commotion
and
sounds from the plaintiff.  Sibeko also testified about further
assault and suffocation in the Condor after the plaintiff
was placed
in there, which the plaintiff said nothing about.
[112]
Furthermore, the particulars of
claim do not refer to the assault at the police station.  They
confined it to the plaintiff’s
home.  Be that as it may,
the lack of physical injuries makes the allegation of sustained
assault, of about three hours in
the police station, as Sibeko
testified, improbable.  MacKlay testified that the assault in
the room took about an hour.  This
differs from Sibeko’s
version that the police were in the plaintiff’s house for about
2 to 3 minutes.
[113]
Apart from various contradictions
noted above, the credibility of Sidzumo and MacKlay’s evidence
is questionable, in that
they gave evidence regarding the police
visiting the plaintiff’s house on 13 November 2008 regarding
the Ikwezi robbery,
something the plaintiff never testified about.
[114]
What is also strange about
Sidzumo’s evidence about the events of 13 November 2008, is
that she stated that she received frantic
“
please
call me”
messages from the
plaintiff, who told her that the police came to his home and kicked
the door, asking about the robbery.  He
then asked her to go to
the police station with him to confirm that he was with her that
night.  Surprisingly, when she called
again the plaintiff said
she did not have to come (as it appears that he went with his
sister).  MacKlay also gave some bizarre
evidence: first, that
whilst at a friend’s place on 13 November 2008, at about 11
o’clock, she received a call that
police were at her home
looking for the plaintiff and when she arrived they were already
gone.  She then changed this by saying
that the police arrived
and she called the plaintiff to find out where he was and he told her
that he had taken Sidzumo to work.
The plaintiff never took her
to work according to Sidzumo, but to the terminus and he is the one
who called her as she was
arriving at work.
[115]
Furthermore, the police could not
have gone to the plaintiff’s house on 13 November 2008, as they
only received the statement
from Mpambo on 20 November 2008 about
Sammy who was driving a white Jetta, as stated beforehand.  I
can only conclude that
this evidence by these witnesses was a clear
fabrication designed to assist the plaintiff’s case.
[116]
Whilst seeming to suggest that he
had advised the captain in the cells that he was injured, the
plaintiff testified in cross examination
that he only mentioned sore
wrists and a sore throat.  The records, however, show that when
he was detained, he was free from
injuries.  The captain in the
holding cells was not informed about the assault.  This was also
not mentioned to the magistrate
during the plaintiff’s
appearances in court.  The plaintiff was, at all these times,
legally represented.
[117]
Given all these material
contradictions, discrepancies and blatant inconsistencies in the
evidence of the plaintiff’s witnesses,
as indicated above, as
well as the strangeness of the fact that no visible injuries were
noted when the assault alleged was so
severe, makes it difficult for
me to find in the plaintiff’s favour.
[118]
For these reasons, it is my view
that the plaintiff has not been able to show on the balance of
probabilities that he was assaulted
by the police.
Quantum
[119]
The plaintiff has since dropped
his damages claim for patrimonial loss.  What is now left is the
assessment of non-patrimonial
damages.  These damages “…
in
the case of infringement to a person’s fama or dignitas, are
not proved in the same manner as patrimonial damages. Awards
are
assessed by the Courts in an endeavour of effecting retribution for
the injury.
”  (
Masiu
v Ramos
(A217/11)
[2012] ZAFSHC 79
(26 April 2012) at para 19).
[120]
In
Rahim and 14 Others
v The Minister of Home Affairs
2015 (7K6) QOD 191 (SCA), at para
27, it
was held:
“
[
27]   The
deprivation of liberty is indeed a serious matter.  In cases of
non-patrimonial loss where damages
are claimed the extent of damages
cannot be assessed with mathematical precision.  In such cases
the exercise of a reasonable
discretion by the court and broad
general considerations play a decisive role in the process of
quantification.
This
does not, of course, absolve a plaintiff of adducing evidence which
will enable a court to make an appropriate and fair award.
In cases involving deprivation of liberty the amount of
satisfaction is calculated by the court
ex
aequo et bono
. Inter
alia the following factors are relevant:
27.1   circumstances
under which the deprivation of liberty took place;
27.2   the
conduct of the defendants; and
27.3   the nature
and duration of the deprivation.
Having regard to the limited
information available and taking into account the factors referred to
it appears to me to be just to
award globular amounts that vary in
relation to the time each of the appellants spent in detention.”
(Underlined for emphasis)
[121]
The plaintiff is in his mid to
late thirties.  He was unceremoniously woken up in the privacy
of his room, whilst sleeping,
in the early hours of the morning, by a
heavy police presence.  It has not been disputed that his room
was forcefully opened.
He was handcuffed and placed in a police
van and, according to one of his witnesses, the neighbours came out
to watch the
incident.  It was not disputed that before his
first court appearance he was placed in a small cell with one window
and a
burglar bar, with 15 other people with whom he had to put the
mattresses together so they could all find a place to sleep.  He

was traumatised by the ordeal and is fearful of the police.  He
occasionally dreams of the incident but is not receiving counselling.

Sidzumo testified that he would wake up frightened when hearing
the sound of a motor vehicle.
[122]
It will be recalled in this case
that the plaintiff can only claim for unlawful arrest up to his first
appearance in court, which
is from Friday 21 November 2008 to Monday
24 November 2008.
[123]
In
Olgar v The Minister of Safety and Security
2008
JDR 1582 (E) at para 16 , Jones J remarked that:
“
In modern South Africa a
just award for damages for wrongful arrest and detention should
express the importance of the constitutional
right to individual
freedom, and it should properly take into account the facts of the
case, the personal circumstances of the
victim, and the nature,
extent and degree of the affront to his dignity and his sense of
personal worth.  These considerations
should be tempered with
restraint and a proper regard to the value of money, to avoid the
notion of an extravagant distribution
of wealth from what Holmes J
called the 'horn of plenty', at the expense of the defendant.”
[124]
The following statement by Bosielo AJA, as he then was,
in
Minister of Safety and Security v Tyulu
2009 (5) SA 85
(SCA
),
at para [26], is apposite:
“
In the assessment of
damages for unlawful arrest and detention, it is important to bear in
mind that the primary purpose is not
to enrich the aggrieved party
but to offer him or her some much-needed solatium for his or her
injured feelings.  It is therefore
crucial that serious attempts
be made to ensure that the damages awarded are commensurate with the
injury inflicted.  However,
our courts should be astute to
ensure that the awards they make for such infractions reflect the
importance of the right to personal
liberty and the seriousness with
which any arbitrary deprivation of personal liberty is viewed in our
law.  I readily concede
that it is impossible to determine an
award of damages for this kind of
injuria
with any kind of
mathematical accuracy.  Although it is always helpful to have
regard to awards made in previous cases to serve
as a guide, such an
approach if slavishly followed can prove to be treacherous.  The
correct approach is to have regard to
all the facts of the particular
case and to determine the quantum of damages on such facts
(Minister
of Safety and Security v Seymour
2006
(6) SA 320
(SCA) at 325 para 17;
Rudolph
and Others v Minister of Safety and Security and Another
2009
(5) SA 94
(SCA) ([2009] ZASCA 39) paras 26-29).”
[125]
Having assessed all the
circumstances in this case, the plaintiff’s age, the
circumstances under which he was arrested, the
nature  and the
duration of detention relevant for consideration in this case, the
alleged emotional effect of the arrest
on him, bearing in mind that
no expert or medical evidence was provided in this regard, and the
evidence regarding the cell in
which he was placed during that
weekend, I am of the view that it would be fair and appropriate to
award damages in the amount
of R15 000. 00.
Costs
[126]
The plaintiff has been successful only in respect of
the claim of unlawful arrest.  The claim of assault has failed.
It
seems to me fair and just that the defendant be ordered to
pay only half of the plaintiff’s costs in these respects.
Costs
relating to the application for the amendment of the
particulars of claim brought by the plaintiff on 24 April 2017, which
stood
over for later determination, would be paid by the plaintiff.
The Court, however, would request parties to make submissions

as to why it should not order such costs
de bonis propiis
against
the plaintiff’s legal representatives.
[127]
In the result, the following
order is made:
1.        The claim of assault is
dismissed.
2.        The arrest of the
plaintiff is declared to have been unlawful.
3.        The defendant is ordered
to pay the sum of R15 000.00 (fifteen thousand rand) to the
plaintiff
as damages.
4.        The defendant is ordered
to pay interest, in respect of the aforesaid amount at the
prescribed
rate from date of judgment to date of final payment.
5.        The defendant is to pay
50% of the plaintiff’s costs on a party and party scale,

including all costs that stood over except for costs related to the
application for amendment of the particulars of claim brought
on 24
April 2017.
6.        The plaintiff is to pay
costs related to the application for the amendment to the
particulars
of claim.  In this regard, however, parties are directed to
address the Court as to why it should not order such
costs
de
bonis propiis
against the plaintiff’s legal
representatives.
_____________________
N P BOQWANA
Judge of the High Court