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[2014] ZAGPJHC 131
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Goelst v MEC Safety And Security and Another (2013/08028) [2014] ZAGPJHC 131 (10 June 2014)
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
CASE
NO. 2013/08028
In
the matter between:
GOELST,
BRETT
Plaintiff
and
MEC
SAFETY AND SECURITY
1
st
Defendant
CELE,
BHEKAMANDOSI 2
nd
Defendant
JUDGMENT
NICHOLLS,
J
[1]
The plaintiff, a 40 year old male, claims general and special damages
arising out of an unlawful arrest and detention and assault
allegedly
suffered at the hands of the second defendant, Bhekamandosi Cele
(“Cele”), a Gauteng traffic police officer,
acting in the
course and scope of his employment with the first defendant. The
special damages relate to legal costs, medical
fees and damage to his
wrist watch, motor vehicle and sunglasses.
[2]
The defendants plead that the arrest was lawful in terms of section
40(1)(a) of the Criminal Procedure Act 51 of 1977 (“the
CPA”)
read together with “
section 64F
of the
South African Police
Service Act 68 of 1995
in contravention of the Traffic Act and for
crimen injuria
”. Section 40(1)(a) provides that a peace
officer can arrest any person without a warrant who commits a crime
in his/her presence.
The defendants further plead that the
plaintiff was resisting arrest and that minimum force was applied in
terms of section
49 of the Act in order to effect the arrest. It
is common cause that the defendants bear the onus of justifying the
arrest.
[3]
After the close of argument but before judgment the defendants sought
to amend their reply to the plaintiff’s request
for particulars
for trial. In response to the question as to what provisions of the
Traffic Act the plaintiff allegedly contravened,
the defendants
replied “
Section 63”
. The amendment now
sought is the addition of the words “
and Section 64 of the
National Road Traffic Act”
to paragraph 4.1 thereof.
Section 63 relates to reckless and negligent driving while
section 64 refers to inconsiderate driving.
This amendment is opposed
by the plaintiff.
[4]
An amendment should always be allowed, even at an advanced stage, to
allow a proper ventilation of the dispute, as long as there
is no
prejudice to the parties and the amendment is not male fide.
[1]
In this matter there is no prejudice to the plaintiff as the
issue of inconsiderate driving has been fully canvassed in the
trial.
The amendment is accordingly allowed.
[5]
The defendants raised two points in limine. The first, relating
to compliance with
section 3
of the
Institution of Legal Proceedings
Against Certain Organs of State Act 40 of 2002
, was abandoned. The
second is a plea of non-joinder in that the plaintiff was detained at
Honeydew police Station at the
instance of the South African Police
Service who it is alleged should have been joined. This was not
vigorously pursued and in
any event has no merit.
[2]
[6]
The following facts are either common cause or not seriously
disputed. On 7 May 2012 Cele was conducting a police operation
with 8 other officers to apprehend motorists driving in the emergency
lane. It was approximately 17H30 - peak hour traffic
and the
traffic was bumper to bumper. The police were positioned,
partially hidden, on Beyers Naude Drive in Roodepoort near
the
Christian de Wet Road off ramp. They were not issuing traffic
tickets on the scene but taking offenders to Honeydew police
station
where the traffic fines would be processed. The high speed unit
of which Cele was a member at the time, and which
was conducting the
operation, does not carry the necessary documentation to write out
fines.
[7]
Cele testified that he was standing hidden behind a road traffic sign
waiting to apprehend motorists. The plaintiff who
was driving a
silver Volvo in the emergency lane was the first motorist he stopped.
Cele informed him that he had committed
an offence. The
plaintiff’s response was that he was driving in the emergency
lane in order to report a dangerous driver
who appeared to be under
the influence of alcohol. When the plaintiff was unable to
identify the alleged drunk driver, Cele
informed him that he would
have to wait at the side of the road with the other offending
motorists and go to Honeydew police station
where the paper work
would be completed for the payment of a fine.
[8]
The plaintiff refused to wait and insisted on leaving the scene. Cele
then warned him that if he disobeyed this order he would
be placed
under arrest. The plaintiff was adamant that he would not remain.
When he refused to hand over his car keys, Cele
leaned into the
car and pulled the keys out of the ignition. The plaintiff
refused to get out of the motor vehicle and
resisted Cele's
attempts to handcuff him. Cele managed to place the handcuffs
on the plaintiff’s right hand by climbing
into the car and
pinning him down while he was still in his seat. He then pulled
the plaintiff out of the motor vehicle by
the handcuff which he
attached to the roof rack of the motor vehicle. Cele returned
to the vehicle with an armed policeman.
He removed the
plaintiff’s handcuff from the roof rack, and demanded that he
give him his left hand so it too could
be cuffed. When the
plaintiff refused to do so, Cele pushed him face down on to the
tarmac and then handcuffed both his hands
behind his back.
[9]
Thereafter the plaintiff was placed in the front seat of a police
vehicle and Cele busied himself with other offenders. Once
the
operation was over the plaintiff was driven by Cele to the Honeydew
police station in convoy with the vehicles of the other
motorists who
had been apprehended. The plaintiff’s car was driven to
the police station by another policeman. At
Honeydew police
station Cele completed the docket and handed over the plaintiff. The
cell register reflects that the plaintiff
was placed in the cells at
19H00; his constitutional rights were read to him and signed at
20H21; and he was finally released at
23H37.
[10]
The plaintiff was charged with reckless and negligent driving and
resisting arrest. The other motorists were charged
with
inconsiderate driving and released immediately once they had paid an
admission of guilt fine. The plaintiff’s
contention is
that this amounted to racial discrimination on the part of Cele who
treated him unfairly because he is white. There
is no substance
to this allegation which is not borne out by the facts. It is
an unnecessary and inflammatory statement in
view of the fact that
other motorists of all races were stopped and taken to the police
station for the same alleged offence.
[11]
Cele explained that the main charge is reckless and negligent driving
and inconsiderate driving is the alternative charge for
which the
other offenders paid an admission of guilt. Once a person
resists arrest then the payment of a fine is not an option.
The
standard procedure is to charge an offender with the main charge of
reckless and negligent driving and it is the prerogative
of the state
prosecutor to decide what the final charge will be.
[12]
The charges against the plaintiff were withdrawn pursuant to oral
representations to the prosecutor by the plaintiff. Cele
was
not called to testify against the plaintiff. The day after the
incident the plaintiff laid assault charges against Cele.
These
charges were also withdrawn.
[13]
The plaintiff’s version is that he drove in the emergency lane
in order to report a drunken driver. He approached
Cele on his
own volition. Instead of assisting him, Cele who was standing
behind a taxi but still visible to him, was aggressive
and
belligerent and started shouting at him. Cele refused to
identify himself and did not wear a name tag. This the
plaintiff found “
strange and abnormal”
and it
immediately came to mind that he was being hijacked. His
suspicions were exacerbated when Cele took the keys of his
car by
force. He felt “
threatened and scared”
. The
reason that he was unable to point out the drunk driver was because
Cele spent a lengthy time verbally abusing him during
which time the
traffic had moved on and the vehicle was no longer visible.
[14]
The plaintiff admits he resisted arrest but justifies it on the basis
that as a result of Cele’s behavior he believed
that he was
being hijacked. He does not dispute that there was a scuffle
between the two of them. He said that Cele
grappled with him to
put the handcuffs on his right hand and then handcuffed his hand to
the roof rack of his motor vehicle. After
Cele left, the
plaintiff leaned into his car and secretly managed to phone his wife.
Pursuant to this call his wife drove
to Honeydew police station
with her friend Stacey Cochrane (‘Cochrane’) and her
fiancé. The plaintiff
agrees that on Cele’s return
there was an altercation between himself and Cele when he was pushed
to the ground and both
hands handcuffed behind his back.
[15]
The plaintiff describes a period while he was seated in a police
vehicle without a seat belt when Cele drove him around flinging
him
forward and driving over the middle island. The reason why Cele
drove like this is not clear but it seems it was to apprehend
other
motorists who were trying to get away. That the plaintiff was
driven around in the police vehicle was confirmed by
Cochrane. She
and the plaintiff’s wife had by chance come across the
plaintiff while on their way to Honeydew Police
Station. This
sequence of events was not put to Cele and nothing much turns on it.
The erratic driving apparently added
to the plaintiff’s
feelings of vulnerability.
[16]
By the time Cele and the plaintiff had arrived at the police station
the plaintiff’s wife was already there with Cochrane
and her
fiancé. Cochrane testified that when she asked Cele why
the plaintiff was being held, he was rude and abrupt
and refused to
speak to her. When she took a photograph of him with her
cellphone he became very aggressive and threatened
to arrest her. He
refused to give his name to her until ordered to do so by the
commanding officer.
[17]
Cele left the police station once he had written up the docket. The
other offenders paid fines and were released. The
plaintiff
said that he too was given an option to pay bail but he refused to
pay as he felt he had done nothing wrong. The
plaintiff was
released on bail several hours later once his attorney arrived. The
plaintiff states that this was between
12h00 and 1H00. The cell
register indicates he was released at 23H37.
[18]
The plaintiff said that on his release he went straight to the
Wilgeheuwel hospital where he had an aids test done and an X-ray
taken. No explanation was provided why he believed an aids test
was necessary in the circumstances. All results came
back
normal. Later in the day he attended on his general practitioner, Dr
Richard Jardim (Jardim) who completed a J88.
[19]
Jardim testified that he noted abrasions on the front of the
plaintiff’s hands, the right wrist, the right shoulder and
the
right chest. No injuries were noted on the face. The
plaintiff came back to see Jardim three months later complaining
of
tenderness over the left rib. He was sent for x-rays of this
area on 14 August 2012 which indicated an undisplaced crack
fracture
of the left rib. The reason for this not being visible in the
earlier x-ray Dr Jardim opined was because the x-rays
taken at
casualty were not specific to the ribs and the crack only became
evident due to the callus formation of the fracture.
Dr Jardim
said the injuries were consistent with an assault as well as a
scuffle where the plaintiff had to be forcibly removed
from the car
and pressed to the ground.
[20] The assault
contended for by the plaintiff was that Cele hit him in the face with
his knee, punched him with a clenched
fist in his ribs and
pushed his face into the tar. It is further submitted that the
handcuffs were applied so tightly as
to cause physical harm to the
plaintiff. Despite several requests to loosen them Cele refused
to do so. Photographs
apparently taken immediately afterwards,
and considerably magnified, were produced by the plaintiff. These
show some minor
abrasions to the hands and shoulders and prominent
marks around the wrists where the handcuffs were placed. One
photograph was
identified as depicting a scratch to the paint of the
roof rack. According to the plaintiff this occurred when Cele
was struggling
to handcuff his right hand to the roof rack. He
said that his sunglasses and wrist watch were damaged in the course
of the
skirmish when Cele returned to the vehicle, pushed him to the
ground and handcuffed both hands behind his back.
[21]
Cele readily conceded that in in the course of attempting to arrest
the plaintiff a struggle ensued which may have resulted
in the
abrasions
.
He denies kicking or punching the plaintiff.
Significantly Jardim said no marks were visible on the plaintiff’s
face. Cele
denies that the handcuffs were overly tight when he
put them on, stating that if plaintiff leaned against something this
would
have the effect of tightening the handcuffs. This proposition
was not disputed. Cele conceded that plaintiff asked him to
loosen the handcuffs while driving to the police station but denied
that he had been previously requested to do so. Cele
said he
was unable to do so while he was driving but loosened them when they
arrived at the police station.
[22]
Cele remembered that the plaintiff wore sunglasses and accepted that
they may have been broken in the scuffle. Although
he did not
see any damage to the roof rack, he did not dispute that the
scratches could have occurred while plaintiff was struggling
and
moving around when his right hand was being handcuffed to the roof
rack. Cele has no memory of the plaintiff wearing
a wristwatch
and no wristwatch appears in the photographs taken of plaintiff’s
wrists at the police station.
[23]
Cele came across as an extremely honest witness, willing to make
concessions of those facts he could not dispute. He
readily
conceded that he could have been responsible for some of the injuries
and damages suffered by the plaintiff. If regard
is had to the
testimonies of Cele and the plaintiff, the real factual dispute seems
to be whether Cele stopped the plaintiff or
whether the plaintiff
voluntarily drove to Cele to report a drunk driver. That the
plaintiff resisted arrest is common cause.
The further question
is whether the conduct of Cele justified the plaintiff’s belief
that he was being hijacked.
[24]
The version that the plaintiff approached Cele to report an alleged
drunk driver is in my view highly improbable. The
plaintiff was
unable to point out the suspected drunk driver to Cele. The
explanation that this driver had already driven
away is unlikely in
view of the fact that the traffic was, on all versions, extremely
slow and the plaintiff had driven ahead of
the alleged drunk driver
by using the emergency lane. When the plaintiff was stopped at
17H24 he was on his way to a meeting
at 17H30. That the
plaintiff would see fit to further delay his journey in order to
report the dangerous driving of another
motorist is highly
improbable. What is more probable is that the plaintiff became
impatient and drove on the emergency lane
in order to by-pass the
slow-moving traffic.
[25]
Cele’s version is that he was hiding behind a traffic sign to
catch unsuspecting motorists driving in the emergency lane.
The
plaintiff’s vehicle was the first car he stopped. On the
plaintiff’s version Cele was behind a stationary
taxi. If
the plaintiff’s stated aim in driving in the emergency lane was
to report another motorist, it is not clear
how Cele would have been
visible to him. Even if the plaintiff’s version is
accepted, namely that he approached Cele
to report the alleged drunk
driver, this means that Cele was identifiable to him as a police
officer or traffic officer.
[26]
That the plaintiff feared he was being hijacked by Cele is equally
improbable. The incident took place in broad daylight
in full
view of peak hour traffic. Cele was in uniform although he did
not have a name tag. The plaintiff said that
he was the one who
approached Cele. It would be more plausible if Cele had stopped
the plaintiff in order to hijack him but
that the plaintiff would
coincidentally choose to report the drunk driving to a hijacker
posing as a policeman stretches the imagination.
The fact that
the plaintiff phoned his wife soon after his right hand had been
handcuffed to the roof rack to tell her that
he was being taken to
Honeydew police station belies his version that he believed he was
being hijacked. In the circumstances
the plaintiff has no
justification for resisting the arrest. Moreover, it appears
that he has chosen to fabricate a version
to put a police officer in
a bad light in order to conceal his own disregard for authority.
[27]
Regarding the assault, both men are middle aged and healthy. Cele
is short and stocky and the plaintiff is tall and of
medium build.
Cochrane said that due to his height the handcuffs behind his
back made him hunch over. Certainly considerable
force would be
required to subdue him if he were resisting arrest. The
photographs of the plaintiff’s injuries do not
reveal any marks
on the face consistent with being punched or kicked in the face.
That the handcuffs were tight cannot be
denied. Whether
this was deliberately done by Cele is unclear. The evidence is
that the plaintiff did thrash
around when his right hand was
initially handcuffed to the vehicle roof rack. Cele’s version
that the plaintiff’s handcuffs
would have been tightened when
he leant against the car seat was not challenged.
[28]
Taking into consideration the facts of this case the balance of
probabilities clearly favours the defendant. It was argued
that the
plaintiff was submitted to inhuman and degrading treatment in
flagrant violation of his constitutional rights and that
he force
used to effect the arrest was not minimum force, but excessive force
tantamount to “torture”. It is
manifestly clear
that this was not the case. Any injuries suffered by the plaintiff
were largely of his own making. It seems that
the plaintiff’s
attitude was symptomatic of the schizophrenic conduct displayed by
many motorists towards law enforcement
agencies: anger that they do
not enforce the law of the land but a sense of outrage when there is
proper enforcement and they themselves
fall foul of the law and are
inconvenienced thereby.
[29] With regard to the
arrest,
section 40(1)(a)
provides that a peace officer can arrest any
person without a warrant who commits a crime or attempts to commit a
crime in his
presence. The jurisdictional facts which must
exist for an arrest in terms of this section are that (i) the
arresting officer
must be peace officer; (ii) an offence
must have been committed; and (iii) the offence must have been
committed in
the presence of the peace officer.
[3]
[30] Once the
jurisdictional requirements are satisfied, the arresting officer has
a discretion whether or not to arrest. Peace
officers are
entitled to exercise their discretion as they see fit, provided that
they stay within the bounds of rationality. The
fact that there
may be less invasive means of bringing a person to justice does not
mean that the discretion was wrongly exercised
by virtue of the
arrest. However an arrest may still be unlawful if the arrest
was not done for the purposes of bringing
the offender to justice.
[4]
Whilst it is desirable that arrests be confined to more serious
charges, the fact that the arrest may be for a lesser offence
does
not render the arrest unlawful.
[5]
[31]
The plaintiff argues that the necessary jurisdictional requirements
for a lawful arrest in terms of
section 40(1)(a)
have not been met.
Firstly, defendants have failed to prove that Cele was a peace
officer. In the alternative it is
argued that the defendants
have failed to show that an offence was committed in the presence of
Cele.
[32]
A “peace officer” is defined in
section 1
of the CPA as
follows:
“
peace officer
includes any magistrate, justice, police official, correctional
official as defined in section 1 of the Correctional
Services Act,
1959 (Act 8 of 1959), and, in relation to any area, offence, class of
offence or power referred to in a notice issued
under section 334
(1), any person who is a peace officer under that section;”
[33]
Section 334(1) of the CPA permits the Minister of justice to declare
certain persons peace officers for specific purposes.
The
section provides:
“
(1) (a) The
Minister may by notice in the Gazette declare that any person who, by
virtue of his office, falls within any category
defined in the
notice, shall, within an area specified in the notice, be a peace
officer for the purpose of exercising, with reference
to any
provision of this Act or any offence or any class of offences
likewise specified, the powers defined in the notice.
(b)
The powers referred to in paragraph (a) may include any power which
is not conferred upon a peace
officer by this Act.”
[34]
The Minister has, in terms of section 334(1)(a) of the CPA, declared
Provincial Traffic Officers to be peace officers.
(See Part 4
of Column 1 of the schedule in GNR 1396 of 22 July 1977: Regulations
under Section 334 as amended.)
[35]
Cele testified that he was a provincial police officer and same was
admitted pleaded by the plaintiff and admitted by the defendant.
As
a provincial traffic officer Cele is a peace officer for the purpose
of exercising any powers in terms of the Act, including
Section 40.
This jurisdictional requirement has accordingly been met.
[36]
The next question is whether the plaintiff committed an offence in
the presence of Cele. The crime in question could conceivably
be one
of the following: driving on a yellow line or emergency lane; failing
to obey a traffic officer’s order (hindering
the police in the
performance of his duty); inconsiderate driving; reckless or
negligent driving; passing on the left hand
side; or driving on
the shoulder of the road. These offences fall under the
National Road Traffic Act 93 of 1996
, with the exception of hindering
a police officer in the performance of his duty which is an offence
in terms of section 67 of
the South African Police Services Act 68 of
1995. In order to be charged with resisting arrest it would first
have to be established
that a crime was committed in the presence of
Cele for which arrest was necessary.
[37]
The case of the defendants as pleaded is that the offence was
reckless or negligent driving, alternatively inconsiderate driving.
The police docket consistently refers to reckless and negligent
driving. I am satisfied that by driving in the emergency
lane
and passing on the left the plaintiff committed an offence in the
presence of Cele. This entitled him to exercise a
discretion
ranging from issuing a spot fine to effecting an arrest. It is
important to note that had the plaintiff not refused
to stop and hand
over his car keys when requested to do so by Cele, he like the other
offenders, would have been escorted to the
police station and issued
with a fine. It was the plaintiff’s own conduct that led
to his arrest and detention.
[38]
Once the version of the plaintiff is rejected, his conduct in driving
in the emergency lane must amount to an offence. It
is the
prerogative of the prosecutor to draw up the final charge sheet.
Plaintiff’s counsel referred to various criminal
cases
where accused persons were acquitted on charges of inconsiderate
driving. The test in terms of section 40(1)(a) can
never be
whether the plaintiff would have been convicted of the offence
but rather whether there was prima facie evidence
of an offence being
committed in the presence of the peace officer. That the plaintiff
committed a traffic violation in the presence
of Cele is undeniable.
[39] As stated by Mpati P
in
National
Commissioner of Police and Another v Coetzee
[6]
it is
not necessary that the arresting officer conduct an enquiry before
effecting an arrest. Once the jurisdictional requirements
are
satisfied the peace officer has a discretion whether to exercise his
powers of arrest. Whether the person should be released
and under
what conditions, arises at a later stage. The court cautioned
against imposing duties on police officers, which
the CPA does not
impose, under the guise of protection of rights enshrined in the Bill
of Rights
[7]
.
[40]
This warning is equally applicable to this case. Considering
the facts of this case I am of the view that the defendants
have
succeeded in discharging the onus that Cele was justified in
arresting the plaintiff and that he applied only the necessary
force
to arrest him. The plaintiff’s action must accordingly
fail.
In
the result I make the following order:
The plaintiff’s
case is dismissed with costs
_________________________
C. H.
NICHOLLS
JUDGE OF THE HIGH
COURT
GAUTENG LOCAL DIVISION
JOHANNESBURG
Appearances
Counsel
of the plaintiff
:
ADV.
C.B. GARVEY
Instructing
Attorneys :
SHAUN NEL ATTORNEYS
Counsel
for the defendant :
ADV. Z. GUMEDE
Instructing
Attorneys :
STATE ATTORNEY
Date
of hearing
: 26
MARCH 2014
Date
of judgement
:
10 JUNE 2014
[1]
Moolman
v Estate Moolman
1927
CPD;
Trans-Drakensberg
Bank Ltd (Under Judicial Management) v Combined Engineering (Pty)
Ltd
1967
(3) SA 632
(D);
Ciba-Geigy
(Pty) Ltd v Lushof Farms (Pty) Ltd
2002
(2) SA 447 (SCA)
[2]
Minister
of Safety and Security v Ndlovu
2013
(1) SACR 339 (SCA)
[3]
Duncan
v Minister of Police
1986
(2) SA 805 (A)
[4]
Minister
of Safety and Security v Sekhoto and Another
2011(5) SA 367
[5]
National
Commissioner of Police and Another v Coetzee
2013 (1) SACR 358 (SCA)
[6]
National
Commissioner of Police and Another v Coetzee
2013 (1) SACR 358 (SCA)
[7]
National
Commissioner of Police and Another v Coetzee
2013
(1) SACR 358
(SCA), paragraph 16