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[2012] ZAGPJHC 202
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Khambule v Minister of Police (11/05013) [2012] ZAGPJHC 202 (12 October 2012)
REPUBLIC OF SOUTH AFRICA
SOUTH GAUTENG HIGH COURT
JOHANNESBURG
CASE NO: 11/05013
In the matter between:
KHAMBULE,
PEPI
Plaintiff
and
MINISTER
OF POLICE
Defendant
JUDGMENT
A J BESTER, AJ:
[1] In this action, launched in
January 2011, the plaintiff, a script writer and an actor in minor
television dramas and the odd
film production, and a self-proclaimed
celebrity, instituted action against the defendant, the Minister of
Police, for damages
in the total sum of R3 715 000,00 for unlawful
arrest, detention and assault by members of the South African Police
Service ("SAPS").
That sum was subsequently amended down to
a total of R270,250.00.
[2] In summary, the plaintiff's claim
against the defendant is based, among others, on the following
allegations:-
a) At about 16:00PM on 19 May 2010, he
was unlawfully arrested on a charge of "(a)ssault on police
officers and obstruction'
by members of SAPS, Johannesburg Central,
acting within the course and scope of their employment, and
assaulted;
b) After the arrest, he was
"unlawfully and unreasonably detained' in the Johannesburg
Central Police Station holding cells
until about 23:45 PM on 20 May
2012, when he was released on warning;
c) The arresting officer "incorrectly
exercised' or failed to exercise his or her discretion in favour of
releasing the plaintiff
in terms of sections 56 or 59 of the of the
Criminal Procedure Act;
d) On 21 May 2010, the Control
Prosecutor issued a certificate of nolle prosequi in respect of the
charges;
e) As a result of the conduct of the
members of SAPS, he has suffered injury to his person, privacy,
dignity and right to freedom.
[3] The defendant admits, among
others, the arrest; the application of a minimum of force to subdue
the plaintiff and to effect
the arrest; certain minor injuries
sustained by the plaintiff during the course of the arrest; the
detention and the release of
the plaintiff on warning; and the nolle
prosequi. The defendant denies the alleged assault.
[4] The defendant furthermore pleads
that the arrest and detention was justified in terms of section
40(1)(a) of the Act and are
thus lawful. In terms of section 40(1) of
the Act a "peace officer may without warrant arrest any person -
(a) who commits
or attempts to commit any offence in his presence".
Where an offence is committed in the presence of a peace officer, a
warrantless
arrest under section 40(1)(a) is therefore not
peremptory, but discretionary.
[5] For the sake of completion I
mention that, in its request for trial particulars, the plaintiff
made the following enquiries
relevant to the exercise of this
discretion by his arresting officer :-
a) Why the arresting officer had
arrested the plaintiff instead of merely giving him a written notice
to appear in court in terms
of section 56 of the Act;
b) Whether the arresting officer had
considered the section 56 procedure and if so, "on what
reasonable grounds ... (he had
decided) not to issue a written notice
for the plaintiff to appear in court'.
[6] In its response to the request the
defendant stated that the particulars sought, is "a matter of
evidence'.
[7] Two witnesses were called in the
plaintiff's case, namely the plaintiff and a medical practitioner, Dr
Sack. The defendant in
turn called three witnesses: the principal
arresting officer, Detective Warrant Officer Kutoane ("Kutoane"),
the assisting
arresting officer Detective Constable Segone ("Segone")
and Warrant Officer Malebe.
[8] It is necessary to say at the
outset that there were sharp conflicts between the testimony given by
the plaintiff and that given
by the police officers on topics
pertinently relevant to the disputes in the action. Moreover, during
cross-examination various
inconsistencies were demonstrated in the
evidence of all of the witnesses. However, when a general allowance
is made for the rapid,
phase by phase unfolding of the events that
lead to the scuffle during the arrest and the circumstances under
which observations
were made by the players in the action, coloured
as these must inevitably be by peculiar traits of character,
differing vantage
points and the lapse of time since the arrest, then
these blemishes in their evidence do not warrant, either in isolation
or cumulatively,
adverse credibility findings favourable to, or
against any party. As underscored in Commissioner for Inland Revenue
v Pick 'n Pay
Wholesalers (Pty) Ltd
1987 (3) SA 453
(A) at 469F - G,
"Human memory is inherently and
notoriously liable to error. One knows that people are less likely to
be complete and accurate
in their accounts after a long interval than
after a short one. It is a matter of common experience that, during
the stage of retention
or storage in the memory, perceived
information may be forgotten or it may be modified, or added to, or
distorted by subsequent
information. One is aware too that there can
occur a process of unconscious reconstruction."
In this regard it is also apposite to
refer to the remarks of Diemont JA in S v Nyembe
1982 (1) SA 835
(A)
at 842F - H in respect of contradictions relating to events that had
occurred some eight months before the hearing in that
case:-
"I am always surprised that
witnesses can, or think they can, after a passage of weeks and
months, recollect how they were
seated in a motor car, what route
they travelled and at what time they reached their venue. I am not
surprised, however, when they
fall into contradiction. The wise trial
Judge knows that human memory is only too fallible ..."
[9] So it was in this case. The
plaintiff narrated his version of the events with dramatic flair,
graphic detail, colourful embellishment
and, at occasion, gross
exaggeration. He even broke down, as if on cue, and wept, for a
moment in time, apparently overcome by
emotion at the mere recall of
what he considered to be the sheer, mindless brutality visited upon
him by his arrestors. But graphic
detail, embellishment and
exaggeration in his case do not necessarily point to deliberate
dishonesty; it could equally be an oddity
of an artistic propensity
to accentuate a perceived wrong by inadvertent dramatization.
[10] The testimony of each of the
police officers was also not quite picture perfect; it did not
dove-tail in all respects with
factual summaries in old sworn
statements or even with the testimony of the other officers.
Understandably, where long after the
event memory is strained to
reconstruct and to recall minutiae under the pressures of
cross-examination, new and broader detail
and insight would emerge,
inevitably criticisable as ex post facto modification, addition or
distortion. But that too, does not
necessarily point to dishonesty.
On the contrary, had these officers, so long after the event and with
so many other subsequent,
successive factual sets to cloud memory,
sung as it were in chorus and with a perfect recall, that could
certainly have been indicative
of, euphemistically pitched, an
overzealous defence witness preparation.
[11] For reasons that will become
apparent below it is, however, not necessary to embark on an
exacting, scientific analysis of
the evidence such as that propounded
in Stellenbosch Farmers' Winery Group Ltd v Martell et Cie
2003 (1)
SA 11
(SCA) in order to resolve the irreconcilable versions in this
case in order to determine, on the probabilities, the more acceptable
of the versions.
[12] Considering first the plaintiff's
case based on the alleged assault, this claim can be eliminated
without much ado. The plaintiff's
evidence on the alleged assault
amounted to this:-
a) He was repeatedly and brutally
assaulted by the arresting officers by whom he was slapped, punched,
kicked ("with booted
feet"), stomped and trampled.
b) These alleged assaults commenced,
he said, during the arrest when he was after a chase tripped and
wrestled to the ground on
the cobbled kerbing of the Rea Vaya Bus
Rapid Transport lane,
and then punched, kicked and trampled
underfoot. When attempting to rise after being cuffed, he was hit on
the right knee with a
pistol but. He contended that had had attempted
to protect his face with his arms and hands, the latter which were
cuffed in front
of his body, in order to avoid injury to his face
(because he had an up-coming audition for a film).
c) That assault, he alleged, continued
after he was seated by his arrestors in a sedan in which he was
transported to the police
station. Fist-blows were in the sedan
rained on him.
d) The assault was resumed again in
the basement of the police station after their arrival. There, he was
kicked and beaten to the
point where he had given up all hope of
life.
e) Apparently not yet satiated, his
arrestors then resumed the assault in the lift on their way to their
office. He was then punched
and slapped.
f) Next, in the charge office, he had
to ward of blows when forced to sign certain formal documents, such
as his warning statement.
(Ironically the latter has, among others, a
declaration by the plaintiff to the effect that he had not been
assaulted in any way.)
[13] The arresting officers admitted a
moderate measure of force to effect the arrest of the plaintiff and
certain minor injuries
sustained by the plaintiff in the course of
the arrest. They had wrestled the plaintiff down in the buss lane
because he had resisted
arrest by Kutoane. However, they emphatically
denied the alleged subsequent assaults.
[14] The plaintiff's evidence of this
unbounded train of incessant and vicious assaults involuntarily
called to mind the generalisation
in R v David
1962 (3) SA 69
(SR)
that "complainants in assault cases ... are notoriously prone to
exaggerate". And "exaggeration' becomes apposite
and
improbability inevitable when the plaintiff's evidence of these
alleged assaults is considered together with the testimony
of his
witness, Dr Sack:-
a) Dr Sack testified that during an
examination of the plaintiff in the morning of 21 May 2010, he had
found that the plaintiff
had swelling and tenderness of the right
knee and lower back, and tenderness of the chest wall, abdomen, lower
back, neck and skull.
b) However, he found no bruises,
abrasions and contusions.
c) Dr Sack further testified that the
plaintiff did not present "like a man beaten up".
d) He said that the injuries were "not
that serious", but were entirely consistent with, for example, a
situation where
minimum force was exerted in order to execute an
arrest.
e) It was telling that Dr Sack's
examination of the plaintiff did not reveal any injuries to the arms
and hands. Such injuries would
be expected if the plaintiff had
indeed covered his head with his arms to protect his face during the
alleged assaults.
[15] Dr Sack's observations, his
conclusions and evidence, therefore, not only corroborate the denial
of the assaults by the arresting
officers; they also highlight the
improbability of the plaintiff's allegations regarding the alleged
sustained and mindlessly brutal
assaults.
[16] Quite fairly, the plaintiff's
counsel did not press the plaintiff's case founded on the alleged
assaults and did not, in the
final analysis, seek any relief in that
regard.
[17] What then remains of the
plaintiff's action is the alleged unlawful arrest and detention. The
relevant facts alleged by the
plaintiff in regard to his arrest are
the following:-
a) At about 16:00 PM on 19 May 2010,
the plaintiff was nearly run over by Kutoane at the intersection
between Commissioner and Eloff
Streets where Kutoane had skipped a
red light;
b) Kutoane was talking on a cell phone
when the incident occurred;
c) After Kutoane had made a U-turn and
had parked the vehicle, the plaintiff deviated from, and interrupted
his walk home to approach
Kutoane to remonstrate with him, absolutely
coolly, calmly and politely, the plaintiff maintained, about his
recklessness, and
to extract an apology;
d) Kutoane, the plaintiff also said,
recognised him as a celebrity, and then became argumentative and
insulting;
e) Segone then exited an adjacent shop
and appeared to be supportive of Kutoane in his fracas with the
plaintiff;
f) The plaintiff therefore turn his
back on them and proceeded to walk
away;
g) When the plaintiff was
approximately 10 to 20 metres away, he heard the sound of pursuit and
he tried to sprint away, but failed;
h) He was tripped, tackled and brought
down in the bus lane, assaulted, handcuffed;
i) He only became aware of the fact
that his pursuers were police officers during the course of that
assault;
[18] In regard to the detention, the
plaintiff testified, among others, that he was, after the repeated
assaults referred to herein
above, paraded in the general office of
the police station where he was introduced to all and sundry as a
celebrity, and mocked
and humiliated. Thereafter he was incarcerated
a holding cell of about 40m2 meters, over-crowded with over 30
inmates. The latter,
the plaintiff said, had immediately recognised
him as a celebrity and had mobbed him for his autograph.
[19] The appalling conditions in the
holding cell, described graphically by the plaintiff, ranged from
faeces-smeared walls through
malfunctioning toilets to a
grime-stiffened and stained blanket that was "unfit for human
consumption'. Counsel for the defendant
did not attempt to put a
different spin on these sub-human conditions.
[20] In his evidence in chief and in
cross-examination Kutoane testified, among others, as follows:-
a) He was called as back-up in a
search of a shop in downtown Johannesburg after he had already
departed for home;
b) He was on his cell phone whilst
driving to the shop (despite that it was wrong to do so);
c) He got directions to the shop on
his cell phone as he was lost;
d) He did in fact stop at a red robot
at the intersection of Commissioner and Eloff Streets, but the
vehicle had lurched forward
and had nearly collided with the
plaintiff;
e) He had signalled his apology to the
plaintiff before he again proceeded on his journey.
[21] Kutoane further testified that,
after he had parked and exited the vehicle, he was approached by a
visibly agitated plaintiff.
The latter had hurled an array of verbal
abuse at him (comprising invective like "big, fat pig' preceded
by the ubiquitous
"f'-word). Then, apparently not getting the
attention he demanded and the apology expected, the plaintiff had
meted out a
top-down, overhead slap to Kutoane's forehead and turned
around and walked away.
[22] On Kutoane's testimony the slap
was, however, not vicious - as he described and demonstrated it to
the court, it was rather
more of an indignant kind of a swat. In any
event, it was common cause between counsel for the parties that the
slap could ordinarily
by no stretch of the imagination be considered
as anything but a minor assault. However, counsel for the defendant
argued, when
a police officer doing no more than to attend to the
discharge of his duties is at the receiving end of such an
indiscretion, it
should justify judicial scrutiny.
[23] Kutoane himself was apparently
less annoyed with the verbal abuse than with the slap for,
subsequently, he said, after some
introspection, he had embarked on
an exercise regime to improve his fitness and to reduce his weight.
Nevertheless, despite the
fact that Kutoane had no quarrel with the
generally triviality of the slap, the slapping of a police officer
whilst in the execution
of duties apparently went a step too far for
his sensitivities. He therefore called after the plaintiff to stop
and, getting no
reaction, set off in pursuit. The plaintiff attempted
to sprint away. Kutoane tackled the plaintiff in the bus lane,
wrestled him
down, cuffed him and arrested him for assault on a
police officer (with another count to be added later).
[24] Segone corroborated, among
others, Kutoane's evidence of the verbal abuse, which he had
overheard, and the slap which he had
observed from the shop. Segone
also testified that he had assisted in the pursuit of the plaintiff
and with his arrest.
[25] The plaintiff denies both the
verbal abuse and the slap, but I can find no reason why I should not
in this regard accept, on
the probabilities, the evidence of Kutoane
as supported by Segone. Why would Kutoane, without any provocation
and for no apparent
reason invoke the power of a warrantless arrest
and then perpetrate the alleged, but roundly disproved, succession of
vicious assaults?
[26] Importantly, however, for the
purposes of section 40(1)(a), both Kutoane and Segone testified that
they did not at any time
consider the release of the plaintiff on
warning or on police bail as opposed to an arrest and detention as
that was not their
function. They said that even after they had
opened a docket and had completed the necessary admin, the plaintiff
was simply handed
over to the lock-up. The further fate of the
plaintiff, including a possible early release was, according to them,
the responsibility
of another official specifically tasked with such
matter in accordance with standing order or policy. On their own
version, therefore,
they did not exercise any discretion whether to
arrest or not; the warrantless arrest was a purely mechanical
function pursuant
to a perceived offence.
[27] A peace officer, such as Kutoane,
in whose presence an offence is committed, such as an assault on a
police officer, of course
has a discretion whether or not to arrest
the offender, for the requisite jurisdictional requirements for the
making of an arrest
under section 40(1) of the Act would be
satisfied. But the presence of those jurisdictional facts alone does
not suffice to make
the arrest lawful, for when they are present, a
discretion whether to arrest or not arises, and that discretion must
not only be
exercised, it must properly be exercised: Duncan v
Minister of Law and Order
1986 (2) SA 805
(A) at 818H - J; Gellman v
Minister of Safety and Security
[2007] ZAGPHC 269
;
2008 (1) SACR 446
(W) paragraphs 94,
100, 101; Minister of Safety and Security v Sekhoto and Another
2011
(5) SA 367
(SCA) paragraphs 29, 30.
[28] It is clearly established that
the power to arrest is only available for the purpose of bringing an
alleged offender before
a court, and that the available methods of
securing that attendance in court are arrest, summons, written notice
and indictment
in accordance with the relevant provisions of the
Criminal Procedure Act. Read with section 40(1)(a) this implies that
where a
warrantless arrest is permissible, the arresting peace
officer must consider all factors relevant to the appropriate method
of
bringing the alleged offender before a court and balance them, the
one against the other, for what might be justifiable in one case
could constitute a gross abuse of power in another.
[29] It is clear that the Kutoane, the
arresting officer, had never performed that balancing act. In fact,
he had never applied
his mind, as he was required to do, to the
question of whether he should exercise his discretion in favour of,
or against an arrest.
He simply proceeded with an arrest on the basis
of an erroneous assumption (or pursuant to an errant official
directive) that it
was not his job, but that of some other official
tasked with the making a decision on an early release at some stage
after the
arrest.
[30] Even if Kutoane was unsure as to
whether, for example, a written notice to appear would be an
appropriate alternative to an
arrest because of considerations such
as the identity of the plaintiff, a fixed residential address, etc.,
he had available to
him another option. That option was an arrest for
the purpose of the verification of such matter and as a precursor to
a written
notice to appear in court. But even that option was not
considered; he simply abdicated his responsibility of exercising the
discretion
to another. The arrest of the plaintiff was therefore
unlawful.
[31] But even if I am wrong in this
regard, and if it is persuasively arguable that the delegation to
another of the discretion
afforded a peace officer under section
40(1)(a) is competent, then the defendant in any event finds itself
at the horns of a dilemma.
It is common cause that the assault on
Kutoane was barely of a sufficiently serious or reprehensible
character to merit criminal
sanction in the interests of society.
There is ample authority for the proposition that offences of a
trivial nature do not warrant
the attention of a court and even if
prosecuted, a court should acquit an accused: see Coetzee v National
Commissioner of
Police and Others
2011 (2) SA 227
(GNP) paragraph 26 and the cases there cited; S v Bugwandeen
1987 (1)
SA 787
(N).
[32] Moreover, as pointed out in
Sekhoto, supra, at paragraph 44, by Harms, DP, "... it is clear
that in cases of serious crime
— and those listed in Schedule 1
are serious, not only because the legislature thought so — a
peace officer could seldom
be criticised for arresting a suspect for
that purpose ... On the other hand, there will be cases, particularly
where the suspected
offence is relatively trivial, where the
circumstances are such that it would clearly be irrational to
arrest.'
[33] If the exercise of a discretion
to arrest an offender for a trivial offence is irrational, then the
arrest of the plaintiff
for that trivial offence and his continued,
subsequent incarceration for it is in any event unlawful.
[34] It is common cause that the
plaintiff was incarcerated in the above mentioned sub-human
conditions from the late afternoon
of his arrest to close on midnight
of the following day. It needs to be said that, even if his arrest
was warranted purely for
the verification of his identity and address
as a precursor to a notice to appear in court, his incarceration
beyond the evening
of his arrest was hardly required. It was common
cause at the hearing that he by then had furnished the police with
information
readily capable of such verification.
[35] The court in Coetzee, supra, at
paragraph 40, underscored the very important principle that, "in
the light of the provisions
of the Constitution, read with the
provisions of s 59, it is clear that an accused person who has been
arrested for minor offences,
for which bail may be granted in terms
of s 59 of the Criminal Procedure Act, has a right to be treated in
such a way that he is
considered, for purposes of obtaining bail in
terms of s 59 of the Criminal Procedure Act, as soon as possible".
(my underlining)
[36] The plaintiff's continued
incarceration beyond the evening of his arrest and the failure to
release him as soon as possible,
which the defendant did not explain
or justify, was therefore not only unlawful, it assumes, on
reflection, a fair air of spitefulness.
As also pointed out in
Sekhoto, supra, at paragraph 13, "(t)here is judicial, academic
and — according to media reports
— public disquiet about
the apparent abuse by some peace officers of the provisions of s
40(1): because they arrest persons
merely because they have the
'right' to do so, but where, under the circumstances, an arrest is
neither objectively nor subjectively
justifiable. Paragraph (a), for
instance, permits a peace officer to arrest a person who commits any
crime in his or her presence.
This may be used to arrest persons for
petty crimes such as parking offences, drinking in public, and the
like.'
[37] I am accordingly of the view that
the plaintiff is entitled to a satisfaction in damages for his
unlawful arrest and detention.
[38] I have, for the purposes of the
determination of an appropriate award, considered matter such as the
circumstances of the arrest;
the duration of the deprivation of the
plaintiff's liberty; the high value of the right to liberty; the
infringement of the plaintiff's
honour and good name; the failure by
the defendant to explain the plaintiff's continued incarceration
beyond the evening of his
arrest; the plaintiff's occupation, age,
health and general income.
[39] However, I have also taken into
account the fact that, on the probabilities, the plaintiff had indeed
verbally abused and slapped
Kutoane. Such conduct is generally
indefensible but when perpetrated on a police officer about his
duties, it is decidedly reprehensible.
But for such conduct, the
award ultimately made in the favour of the Plaintiff would have been
more substantial.
[40] In the exercise of my discretion,
I have therefore concluded that a sum of R35,000.00 is sufficient in
the peculiar circumstances
of this case to compensate the plaintiff
for his unlawful arrest and detention.
[41] In respect of costs, because the
sum of the damages ultimately claimed fell well within the
jurisdiction of the Magistrates'
Court, the matter did not deserve
the attention of the High Court. In this case, as is the case with
far too many damages actions,
the sum initially claimed, was grossly
overestimated and simply not justifiable on any basis. Realistically,
the true value of
the claim, if successful, was never a matter for
the High Court. The plaintiff should therefore not be awarded High
Court costs.
Furthermore, although the plaintiff has attained a
measure of success, he achieved substantially less than what he
claimed. He
should therefore not be awarded a full measure of costs.
I accordingly make the following
order:-
(a) The defendant is ordered to pay
the plaintiff the sum of
R35,000.00;
(b) The defendant is ordered to pay to
the plaintiff 50% of his taxed party and party costs, such costs to
be taxed on the scale
of costs as applicable in the Magistrates'
Court.
A J BESTER
ACTING JUDGE OF THE SOUTH GAUTENG
HIGH COURT,
JOHANNESBURG
COUNSEL FOR THE PLAINTIFF : ADV A
BESSINGER
INSTRUCTED BY : BESSINGER ATTORNEYS
COUNSEL FOR THE DEFENDANT : ADV M
MAKOPO
INSTRUCTED BY :THE STATE ATTORNEYS
DATES OF HEARING : 4, 5, 8, 9 OCTOBER
2012
DATE OF JUDGMENT : 12 OCTOBER 2012