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South Africa: South Gauteng High Court, Johannesburg
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2014
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[2014] ZAGPJHC 277
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Moeka v Minister of Police (39639/12) [2014] ZAGPJHC 277 (26 September 2014)
REPUBLIC OF SOUTH
AFRICA
SOUTH GAUTENG
LOCAL DIVISION,
JOHANNESBURG
CASE
NO: 39639/12
DATE:
26 SEPTEMBER 2014
In the matter
between:
COLLIN
MOEKA
........................................................
Plaintiff
And
MINISTER OF
POLICE
.........................................
Defendant
JUDGMENT
TEFFO, J:
[1] The plaintiff
sued the defendant for damages arising from assaults and an arrest by
members of the defendant who were allegedly
acting in the course and
scope of their employment with the defendant.
[2] It is alleged
that the plaintiff was arrested at his house on the night of the 23
April 2012 after he was assaulted by three
police officers who were
members of the defendant at the time.
[3] The defendant
denies the allegations.
[4] The following
facts are common cause between the parties:
4.1 The plaintiff
was at the time of the incident employed by a certain Mr Tony
Mmamogobo (Tony) as a taxi driver.
4.2 On the night of
the incident he drove the taxi which belonged to Tony and parked it
at his house instead of parking it at the
Engen garage.
4.3 Tony phoned the
plaintiff several times on his cell phone but did not get hold of
him.
4.4 He ultimately
went to the plaintiff’s house to fetch his taxi.
4.5 Mr Johannes
Sefatse (“Aubrey”) gave Tony the taxi keys. He drove the
taxi which was parked at the plaintiff’s
homestead in the yard
and parked it outside.
4.6 Police were
called and the plaintiff and Aubrey were then arrested.
4.7 The charges
against the plaintiff were subsequently withdrawn.
[5] Three witnesses
were called to testify on behalf of the plaintiff and the plaintiff
himself adduced evidence while the defendant
also called three
witnesses to prove its case.
[6] The evidence led
in this matter is briefly as follows: Mr Collin Moeka (the
Plaintiff) testified that on 23 April 2012 he was
on duty as a taxi
driver. He knocked off around 19h00 and then went home. The taxi he
worked on that day got a puncture. He
then drove it to his house.
Normally if the taxi did not have a puncture, he would leave it at
the Engen garage, park it there
for the night and take public
transport to his house.
[7] Upon his arrival
at his house he parked the taxi inside the yard and locked the gates
as he does not have a garage. His wife,
his two daughters and Aubrey
were at his house at the time. Around 21h30 he went to bed. Before
he went to bed he told Aubrey
that he was afraid of Tony because he
did not reach a daily target. Aubrey asked him what was going to be
done. He told him he
was afraid of talking to Tony. He then asked
Aubrey to phone Tony and inform him that the taxi was at his home and
that it was
safe. He also asked his wife to keep the money that he
had collected on that day which was an amount of R350,00.
[8] Aubrey asked him
what was he supposed to say to Tony in case he asked him questions.
He told Aubrey to inform Tony that he
was not at home at the time and
that he could come and fetch his taxi. Aubrey asked him if Tony
comes to fetch the taxi and request
his money what should he tell
him. He told him that he will sort out the issue of the money. He
wanted to explain to Tony should
he come to his house to fetch his
taxi and ask him about the money, that he was quitting his job and
that the amount of R350,00
that he made on that day was his salary.
He also told Aubrey that when Tony asked him about his whereabouts he
must tell him that
he owed certain people from Chrystal Park some
money and he left with them.
[9] Aubrey phoned
Tony and Tony told him that he was coming to his house. Him and
Aubrey waited for Tony. He did not come and
they went to bed. As he
was in bed in his bedroom with his wife, Aubrey came and told him
that
Tony was at the
gate. His children were asleep in their bedroom. He then gave
Aubrey the taxi keys to give to Tony and to tell
him that he was not
there. Subsequent thereto Aubrey came back and told him that Tony
was phoning the police. When he heard that
Tony was phoning the
police, he moved from his bedroom to his children’s bedroom
where he hid himself between the wardrobe
and the bed. His wife
immediately woke up and went to the kitchen.
[10] As he was
hiding himself in his children’s bedroom, he heard Aubrey
screaming. Aubrey was being beaten by the police
who were asking him
where was the plaintiff. Aubrey told them that he was not there.
They kept on assaulting him until he told
them that he was in the
house. They started searching for him in the house. They found him
in the children’s bedroom where
he was lying in between the bed
and the wardrobe with his back facing up. They pulled him up thereby
beating him. They slapped
him on his face and kicked him on his ribs
with booted feet. They assaulted him several times and pulled him to
the outside of
the house. His children were awake when the police
were busy assaulting him in their bedroom. His wife was also present
in their
children’s bedroom when he was assaulted. She then
removed the children from their bedroom to the other bedroom for them
not to see what was happening.
[11] As he was on
the passage with the police, they ordered Aubrey to follow them
outside. While they were outside, one of the
policemen slapped
Aubrey while one tripped him. He fell down as the other police
officers were busy assaulting him. As he was
on the ground, they
continued kicking him on his ribs and his head, and he kept on
blocking his head. One of them kicked him on
his leg and he felt
that it was broken. He then told them to leave him alone as they
broke his right leg. He cried as he was
in pain. He did not see
anything any longer. He ultimately found himself at Pholosong
hospital where he was transported by an
ambulance. He was at
Pholosong hospital for a day. He was operated and subsequent
thereto, was transported to a police hospital
in Tembisa. At that
time he was under arrest for only two days because on his way to
Tembisa he was transported to the police
station where he was told
that charges against him were withdrawn. He was then released before
he could reach the hospital in
Tembisa.
[12] He felt better
after the operation. At the time he was giving evidence he said he
cannot stand or sit for a long time. He
has to elevate his right leg
and when it is cold the leg becomes very painful. When he walks a
long distance, the leg gets tired.
He cannot carry heavy objects.
He does not drive motor vehicles anymore because when he applies the
brakes, he gets cramps and
the leg locks. He never encountered these
problems prior to the incident. He was never locked up in the cells
but he was under
arrest at the hospital.
[13] Under cross
examination he testified as follows: that the taxi he was driving on
the night of the incident had a puncture
at 19h00 around his knock
off time. He did not tell Tony about this as he was afraid of him.
When the taxi got a puncture he
was close to his house and the Engen
garage was very far. He conceded that there were problems with the
monies he collected on
18 and 19 April 2012. He also conceded that
around 20h00 when Tony called him his phone was off. He conceded
that Tony was only
able to gain access to his phone around 21h00 when
his phone was answered by someone else. He further conceded that the
person
who answered his phone told Tony that he was kidnapped by
people he owed money. He denied that Aubrey also told him that he
organised
people to drive the taxi to his house. He maintained that
he drove the taxi himself from Chrystal Park to his house and he was
the person who told Aubrey to tell Tony all that.
[14] He conceded
that Aubrey told the police and Tony that he told them lies to cover
up for him. When he was told that Tony will
testify that he asked
him about the money he collected for the day and why he parked the
taxi at his house, he failed to respond
to his questions, he said
that was the truth. He disputed that he tried to run away from the
police while they were outside the
house. He maintained that the
police were beating him. His leg was broken and they lifted him and
put him inside the police van.
[15] He testified
that when the police entered the children’s bedroom they did
not introduce themselves to him. They pulled
him up where he was
hiding and started to assault him. He disputed ever following
Constable Kgare in his socks and underwears
to the dining room where
Constable Mkhize ordered him to dress. He disputed that the police
communicated with him in the presence
of Aubrey and Tony. He
disputed ever being accompanied by Tony and Constable Mkhize to his
bedroom where his wife was found awake
and wearing a gown. He also
disputed giving Tony the money he collected for that day and said his
wife was the person who gave
Tony the money. He disputed ever going
to his bedroom after being pulled from the children’s bedroom.
He testified that
he was pulled, assaulted from the children’s
bedroom and then taken out of the house.
[16] He stated that
after the police entered the children’s bedroom, as they were
busy assaulting him, his children heard
the noise and woke up.
Police assaulted him all over his body and he felt pains. They
tripped him while they were outside the
house because when his leg
broke, he was on the ground. They also assaulted him when he was
lying on the grass. He disputed that
he sustained a fracture on his
leg when he fell on the stairs as he was coming from the kitchen to
the outside of the house because
he was trying to run away. He
disputed that he slipped on the floor because the stoep was wet as it
had rained during the day.
He further testified that the police
stopped assaulting him after he told them to stop as his leg was
broken. He denied ever
telling the doctor at the hospital that he
was assaulted by members of the public. He was 34 years old at the
time of the incident.
He also denied ever telling a nurse at the
hospital that he was assaulted by thugs. He denied that he kept the
monies he collected
from the taxi on 18, 19 and 23 April 2012 to
himself but conceded that Tony came to his house to fetch his taxi
and the money he
collected from the taxi.
[17] Mr Johannes
Sefatsa (“Aubrey”) testified that the plaintiff is his
friend and a relative as he married at his aunt’s
family. He
spent most of his time with him at the time of the incident. He was
with the plaintiff on the day of the incident.
He corroborated his
evidence to the effect that the taxi had a puncture, plaintiff drove
it to his house and parked it in front
of the house inside the yard.
Further that the plaintiff asked him to phone Tony and explain to him
that the taxi was safe where
it was. He testified that immediately
after he had phoned Tony, Tony came to the plaintiff’s house.
When Tony arrived at
the plaintiff’s house, he was in the
kitchen. Tony wanted the money that the plaintiff collected on that
day and the taxi.
At that time the plaintiff was hiding himself in
the house because he did not have the money that Tony wanted and the
taxi had
a flat tyre.
[18] He told Tony
that the plaintiff was not there, he left with certain people from
Chrystal Park whom he owed money. Tony informed
him that he was not
telling him the truth. He continued lying to him until he told him
that he was calling the police because
the plaintiff was in the
house. After checking his taxi, Tony called the police. At that
time Tony was in the kitchen moving
around and he went outside to his
motor vehicle. It was like he was speaking to a friend. When he
went out to the motor vehicle,
he remained in the kitchen and then
went to tell the plaintiff that Tony said he was phoning the police.
Shortly thereafter police
arrived as the gate and the kitchen door
were open.
[19] One of the
policemen asked him to speak the truth. He continued lying to them.
The police started to assault him and he ultimately
told them that
the plaintiff was in the house in one of the bedrooms. They found
the plaintiff, escorted him and the plaintiff
outside the house where
they put both of them in the police van. As they left the house to
the police van, he could not see what
was happening to the plaintiff.
[20] Under cross
examination he testified that lied to Tony because the plaintiff said
he should do so to protect his job. He conceded
that he told Tony
that the plaintiff had left with people from Chrystal Park. He
denied telling Tony that he was at the police
station with the
plaintiff. He testified that he gave Tony the taxi keys after
telling him that the plaintiff was not there.
Tony took the keys and
parked the taxi outside. He could not recall whether the gate was
opened when Tony arrived at plaintiff’s
house and whether he
locked it after Tony parked the taxi outside.
[21] When told that
Constable Kgare put the siren on when they arrived at the plaintiff’s
gate, he said he does not know anything
about that as he was in the
house at that time. After it was put to him that both Constable
Kgare and Tony will testify that after
the siren was blown, he came
back to the gate and opened it for them, he disputed that evidence
and said the police arrived there
immediately after they were phoned
and they found him in the kitchen because the kitchen door was
opened. He also testified that
Tony took the taxi out of the
plaintiff’s yard in the presence of the police. He disputed
ever having a conversation with
Constable Kgare in the dining room
and maintained that he only spoke to the police officer who asked him
to speak the truth and
the police then started to assault him. He
did not dispute that police confronted him with what he told them and
he failed to
give them answers. He conceded that he lied to them and
later apologised after he finally told them that the plaintiff was in
one of the bedrooms in the house. He maintained that the police
assaulted him that night and told him that they were assaulting
him
because he told them lies about the whereabouts of the plaintiff.
[22] He corroborated
the plaintiff’s evidence that the plaintiff’s children
woke up when they heard the noise of the
police who were assaulting
them. Furthermore, he testified that police did not go to the dining
room with the plaintiff. After
they found him, they assaulted him,
pulled the plaintiff with him outside the house. At that time the
plaintiff was only wearing
socks and an underwear. When told that
Tony will testify that at some stage he went with the plaintiff to
his bedroom, he said
he cannot remember all the events because the
incident happened a long time ago and he did not pay attention to
everything that
was happening. He testified that he heard the
plaintiff’s wife telling him to go with the police as she did
not want to
be disturbed by their presence in the house. He disputed
that police did not assault him outside and stated he was assaulted
inside
and outside the house until he was put inside the police van.
[23] As he was going
to the police van, he saw the plaintiff lying on the grass where he
was assaulted. The plaintiff was assaulted
inside and outside the
house. He disputed that as you go out of the kitchen, there are
stairs. He said there is a stoep. When
asked whether on the night
in question the stoep was wet, he said he does not remember but it
never rained during the day. He
disputed that the plaintiff could
have tried to run away as they were going out to the police van with
the police as the police
were busy assaulting them at the time. He
disputed that the plaintiff was assaulted by thugs and or members of
the public. He
also disputed that he spoke to Tony about him driving
his taxi from Chrystal Park to the plaintiff’s house.
[24] Ms Refilwe
Sekhoto (“Refilwe”) testified that on the night police
came to her homestead, she was asleep in her
bedroom. She heard the
noise of the police. She did not see where the story started but only
saw them opening her bedroom door
roughly and entering. The police
saw the plaintiff, her father, who was lying down on the passage,
pulled him and started to assault
him. As the police were busy
assaulting him, one of them jumped on her bed. Her mother came to
her bedroom and took her and her
sister to another bedroom as she did
not want them to see what was happening. From there she was not able
to see what happened
thereafter.
[25] Under cross
examination she was asked what this noise that she heard was all
about. She testified that she heard Aubrey crying
from the kitchen as
the police slapped him when they arrived. When asked whether she was
not awakened by the rough opening of
her bedroom door by the police,
she said all these woke her up. She testified further that she did
not hear her father entering
her bedroom. When told that Constable
Kgare will testify that he informed the plaintiff that he was a
police officer and ordered
him to wake up, she disputed that evidence
and said when the police arrived, they started to assault the
plaintiff. She also denied
that he asked him who he was and said
when Constable Kgare arrived, he already knew who the plaintiff was,
he pulled him and started
to assault him. She further denied that
Constable Kgare ordered the plaintiff to follow him to the dining
room and said when he
entered the bedroom, the plaintiff had covered
himself with a white duvet. Constable Kgare told him to dress.
She conceded that
the plaintiff went to his bedroom to dress before he went out of the
house with the police. She disputed that
when the police were in her
room, she and her sister were asleep and did not wake up.
[26] Mrs Alina
Mokoena Sekhoto (“Alina”) testified that the plaintiff is
her husband and Refilwe is their daughter.
On the night of the
incident she was from work at 19h30. She arrived at her house, saw
Tony’s taxi in the yard and asked
the plaintiff what was the
taxi doing there. The plaintiff told her that he brought it there
because it had a flat tyre. He also
told her that he was supposed to
have made a daily target of R600,00 that day but he could not. She
then asked him what should
she tell Tony when he comes to fetch his
taxi if he is having such a problem. The plaintiff said she should
tell Tony that he
does not want to see him when he comes, she must
give him the little money that he collected on that day and his taxi.
He then
asked Aubrey to phone Tony and tell him that his motor
vehicle was safe at his yard. Around 20h00 they went to bed.
[27] Between past
21h00 and 22h00 Tony arrived at her house. The gates were locked.
He knocked at the gate. Where Aubrey was sleeping
is next to the
gate. Aubrey saw Tony at the gate and came to her bedroom, told her
and the plaintiff that Tony was at the gate.
The plaintiff then said
to Aubrey, here are the keys, go and give them to him and the money.
The money was at that time on the
dressing table. Aubrey went to the
gate, unlocked it, leaving the money behind. He then gave Tony the
taxi keys. She did not
hear their conversation outside. Tony came
into the house with Aubrey. He asked her where was the plaintiff.
She told him that
he was not there. He then said how come was the
plaintiff not there while the taxi was parked outside, he should be
in the house.
He then said because they were hiding him, he should
call the police. He phoned George from Engen garage and told him
that he
found the taxi at the plaintiff’s house. Suddenly
George arrived at her house with three police officers. They found
her
and Aubrey in the kitchen. At that time the plaintiff was in
their bedroom.
[28] They asked
Aubrey where was the plaintiff. Before he could respond, they
slapped him. He then said the plaintiff was in his
bedroom. She
went with the police and Aubrey to her bedroom to look for the
plaintiff. They did not find him. They proceeded
to the children’s
bedroom and found him sleeping on the passage. The room was dark.
They switched on the lights. They
asked who was that person sleeping
there. He said he was Collin. They then started to slap him. She
then told them to stop assaulting
him and let him go and get dressed.
They continued to assault him. Thereafter they said he should go
and get dressed.
[29] She
corroborated Refilwe’s evidence that as the plaintiff was being
assaulted in her bedroom, she took her and her sister
to her bedroom
in order for them not to see what was happening. The police left the
plaintiff and gave him the chance to get dressed.
As he was dressing
in his bedroom, they kept on asking where was the money that he
collected on that day. The plaintiff told
them that the money was
inside the box on the dressing table. He took it and gave it to
them. After all this the police told
him to take out the shoe laces
as they were going with him. They left with him. She remained in
the house with the children but
she heard police saying they were
arresting him, they were going with him. At that time she was in the
kitchen locking the door.
She denied that it rained on that day and
that there are stairs outside the kitchen. The plaintiff did not
resist the arrest.
The stoep outside the kitchen was dry. She never
saw the plaintiff falling while he was outside.
[30] Under cross
examination she disputed that Tony was never phoned and informed that
his taxi was safely parked at the plaintiff’s
house. She
disputed the plaintiff and Aubrey’s evidence that there was no
communication between the plaintiff and the police.
She maintained
that when police entered their children’s bedroom they asked
who was it who was sleeping on the passage.
She conceded that the
taxi was supposed to have been parked at the Engen garage. She
disputed Tony’s evidence that he got
information from tracker
that the taxi was parked at the plaintiff’s house and
maintained that Aubrey phoned him. She also
disputed that after
Aubrey had given Tony the taxi keys and Tony had parked the taxi
outside, Aubrey locked the gates and maintained
that that was the
time Tony came to the house and spoke to her. When asked why she did
not give Tony the money when Tony was given
the taxi keys as her
husband had ordered, she said Tony was already making noise outside.
She waited for him to enter the house
so that she could give him the
money. She further disputed that when the police arrived they found
the gates locked while the
taxi was parked outside. She testified
that she did not hear the siren. She maintained that she was in the
kitchen and not in
her bedroom when the police arrived. She denied
that upon their arrival the police went to the dining room where they
had a conversation
with Aubrey and maintained that they started to
assault him upon their arrival there. She conceded that Aubrey told
the police
that he was lying when he informed them that the plaintiff
had left with people from Chrystal Park whom he owed money. She also
conceded that the plaintiff was in one of the bedrooms in the house
and the police searched for him and found him. She conceded
further
that Constable Kgare woke the plaintiff up and told him that they
were the police. She denied that the police told the
plaintiff to
accompany them to the dining room. She disputed that when the police
left the children’s bedroom with the plaintiff,
they left the
children sleeping. She corroborated Refilwe’s evidence that
she took the children to another bedroom. She
disputed that
Constable Kgare was the only policeman who entered the children’s
bedroom to search for the plaintiff. She
testified that all three
policemen entered the children’s bedroom. She testified
further that Constable Kgare assaulted
the plaintiff with open hands
on the night of the incident. She disputed the plaintiff’s
evidence that he was dressed when
he came out of the children’s
bedroom. She disputed that she gave the money that the plaintiff
collected that day to Tony.
She stated that she told the police and
Tony that it was in the box on the dressing table and they ultimately
took it.
[31] When told that
the plaintiff testified that he wanted to keep the money he collected
for the day as his wage and why did she
say the money was given to
Tony, she testified that the plaintiff told her to give the money to
Tony when he arrived. When told
that Aubrey testified that the
plaintiff left his bedroom when he told him that Tony was phoning the
police, she said it was not
true, he left the bedroom when the police
arrived. She disputed that the plaintiff was assaulted by members of
the public and or
thugs. She testified that police came to their
house and assaulted him. She disputed Aubrey’s evidence that
police assaulted
him after he had explained to them that the
plaintiff was not there. She testified that police assaulted Aubrey
while he was trying
to explain to them the whereabouts of the
plaintiff.
[32] Mr Tony
Mmamogobo (“Tony”) testified as follows: He is a taxi
owner residing at Barcelona in Daveyton. On 24
April 2012 the
plaintiff was driving his quantum with registration letters and
numbers BL 84 PX GP. He was supposed to have parked
it at the Engen
garage in Etwatwa after he had knocked off at 20h00. On the day in
question at approximately 04h00 the plaintiff
took the taxi at Engen
garage and resumed his duties. A day prior to the day of the
incident, it was a Sunday, the plaintiff did
not come to his house to
bring the money he had collected that day. On Monday, the day of the
incident, he phoned the plaintiff
between 16h00 and 17h00. His phone
was off. He left him and waited for his knock off time at 20h00. He
phoned him again after
20h00 and still his phone was off. He waited
again until 20h30 and around 20h40 he took a bicycle and drove to the
Engen garage.
He looked for the taxi where it always parked, it was
not there. He then bought air time and phoned tracker. The tracker
company
told him that the taxi was at Railway in Daveyton (that is
the place where the plaintiff resides). He then cycled to Railway
and
when he stopped at the gate, he saw his taxi parked inside the
yard of the plaintiff’s residence. He knocked at the gate
for
about half an hour, no one responded. After that Aubrey opened the
gate.
[33] When he was
knocking at the gate, Aubrey opened the window and told him that the
plaintiff was not at home. He asked him why
was the plaintiff not
there while the taxi was parked inside the yard. He told him to open
the gate as he wanted his vehicle.
Aubrey took sometime before he
opened the gate as he said the plaintiff was supposed to bring the
vehicle. As he was not opening
the gate, he took the phone and
phoned the person who guards their vehicles at the Engen garage by
the name of George. He asked
him that if he sees the police there,
he should ask them to come to the plaintiff’s house as he
needed assistance. A couple
of minutes later George phoned him back
and told him that the police were at the garage and that he would be
coming with them to
the plaintiff’s residence.
[34] As he was
waiting for the police, Aubrey then opened the gate. He entered the
yard and asked for the taxi keys as he wanted
to take it outside the
yard. He got the keys, started it and as it was idling, it did not
move because it had a flat tyre. He
forced it outside the yard and
parked it outside the gate. He then took out tools to change the
tyre. As he was busy, police
arrived. He then explained to them
that he found the taxi but it has a puncture. He could not drive it.
The police asked him
where was the driver of the taxi. He informed
them that he was told that he was not at home but the person with
whom he was, was
present. They then decided to speak to Aubrey.
They put the siren on because the gate was locked. Aubrey then came
to open the
gate. They asked him questions as they were going into
the house. Before the police asked him where was the plaintiff, he
also
asked him and Aubrey told him that the plaintiff was kidnapped
by people he owed money. They then entered the plaintiff’s
house in the kitchen and police started asking Aubrey questions
there. He refused to tell them where the plaintiff was.
[35] The police told
him that they were going to arrest him as the taxi was in the yard.
They then said why did he not report the
kidnapping to the police and
write down the registration numbers of the vehicle that kidnapped the
plaintiff. Aubrey then raised
his hands and said they should not
arrest him, he will tell the truth. He then told them that the
plaintiff was not kidnapped,
he was in the house in the bedroom. He
pointed to them a bedroom next to the kitchen. When they went to the
bedroom, he remained
in the kitchen. They found the plaintiff lying
next to the bed in the children’s bedroom. They woke him up as
he was sleeping
on the floor. They came with him to the passage
between the rooms. He was not dressed. He was only wearing socks
and an underwear.
Police asked him where were his clothes. He said
they were in his bedroom. They entered the bedroom with the
plaintiff while
he remained in the kitchen. They asked him where was
the money he collected for the day. He showed it to them but it was
not
all. It was only R350,00.
[36] He started to
look for the trouser he was wearing. His wife threw it to him. He
took out R350,00 from one of the pockets and
put it on top of the
dressing table. He then said that was all that he had. The police
asked him what was his daily target.
He himself told them that it
was R600,00. They gave him the chance to dress. After that they
came out of the bedroom with him,
passed through the kitchen and went
outside. He followed them as they went outside. As they were
outside, the plaintiff tried
to run away. As he was running he fell
to the ground. It rained the previous day. When he was on the
ground, he started to
scream and he told the police that he was
injured. The plaintiff and Aubrey were put in the police van. He
remained behind next
to the plaintiff’s gate with his taxi.
The police instructed him to follow them to Etwatwa police station
after fixing the
tyre.
[37] He eventually
went to the police station. When he arrived there, he found that the
plaintiff was already taken to the hospital.
He told the police that
he was not laying a charge against the plaintiff. He only wanted his
money and the taxi. They informed
him that because the plaintiff was
injured, he had to open a case. A case was then opened and he left
the police station.
[38] He was not
certain about the date of the incident but he said it was on a
Monday. He testified that the plaintiff only gave
him R200,00 as the
money he collected on 18 April 2012 instead of R400,00. The
plaintiff did not bring the money he collected
on Sunday, the 22
April 2012. He did not give him permission to park his taxi inside
his yard. The plaintiff never phoned him
on the night of the
incident to tell him that his taxi was parked safe at his house.
[39] He did not see
how the plaintiff got injured. Aubrey told him that he was the
person who drove the taxi to the plaintiff’s
house. He did not
give Aubrey permission to drive his vehicle. The plaintiff gave him
the money that he collected on the day
of the incident. He never saw
the police assaulting the plaintiff.
[40] Under cross
examination he was referred to the statement that he made to the
police in relation to the incident. He stated
that he made the
statement two months after the incident as one of the police officers
called Thulani came to him and took the
statement. He gave the
statement to him in Sepedi while Thulani wrote it in English. Thulani
read the statement back to him.
He did not read it himself as he
does not know English. He told him everything that he observed with
his eyes. There was nothing
contentious about his statement except to
say that it was put to him that he did not mention that George came
with the police at
the plaintiff’s house and that George would
have given light as to whether the gate was locked or opened when the
police
arrived at the plaintiff’s house.
[41] He was asked
what happens in the taxi industry if a driver brings less money than
the daily target, he said they deduct that
shortage from the driver’s
wage that he is paid every week if he does not get extra money to
cover it up. He further said
if he is short like that, they cannot
say he stole like a criminal. He also stated that when the plaintiff
gave him R350,00 on
the night of the incident, he did not steal but
he was short.
[42] He testified
that he knew the plaintiff’s house is not in Esselen Street.
Further that the tracker company told him
that the taxi was at
Railway next to Eastlyn. His counsel was not correct when he put it
to the plaintiff’s witnesses that
the tracker company told him
that the taxi was in Daveyton in Esselen Street.
[43] He was referred
to paragraph 8 line 4 of the statement he made to the police which
reads:
“After a few
minutes George arrived with the police. I explained the situation to
the police. We then went inside with the
police at Collin’s
place. Inside the house we found this friend of Collin who later
identified himself as Johannes Sefatsa.”
[44] He conceded
that he arrived with the police and inside the house they found
Aubrey. When asked why did he in his evidence
in chief testify that
Aubrey opened the gate for him and the police, he said as he
explained, when the police arrived they put
the siren on and Aubrey
came and opened the gate for them. They then started to ask him
about Collin’s whereabouts. He
conceded that he could be
making a mistake as the incident happened a long time ago. He also
conceded that because his statement
was taken two months after the
incident, the version that should be taken as correct should be the
one that was given two months
after the incident as against his
evidence in chief which is given two years after the incident.
[45] He disputed
that the plaintiff’s wife was in the kitchen when he arrived
with the police. He maintained that they only
found Aubrey in the
kitchen. The plaintiff’s wife was moving up and down in the
house. She went to the bedroom and came
back.
[46] He was not sure
how many policemen went to the bedroom to look for the plaintiff but
conceded that there were three policemen
at the plaintiff’s
house. He conceded that when they went to the bedroom, he remained
in the kitchen and did not see what
happened in the bedroom. He
disputed ever testifying that police brought the plaintiff to the
kitchen and asked him about his
clothes. He maintained that they
asked him about his clothes while they were on the passage. He
further testified that when the
police went with the plaintiff to his
bedroom to get his clothes, he was not in one place and was moving
between the kitchen and
the passage. He could see what was happening
in the plaintiff’s bedroom because the door was opened and it
faced the passage.
When asked whether it was true that the plaintiff
slipped on the stoep and fell, he said he cannot say whether the
plaintiff slipped
before he started to run away or not but he took
two or three minutes from the house and started to run away. He
stated that he
saw him slip as after he exited the house, he went to
the right and fell on the lawn.
[47] When he was
told that the plaintiff said he got injured after he was tripped and
kicked by the police, he disputed that evidence
and said he never
witnessed any of the police officers assaulting him and what he saw
was that the police were chasing after him.
He conceded that the
plaintiff was in pain as he was crying but could not say if he could
stand on his own.
[48] Mr Masekela
Harold Kgare (“ Constable Kgare”) testified that he was
employed at SAPS Etwatwa as a Constable. He
was on duty on 23 April
2012 from 17h45 until 06h00. He was patrolling and receiving
complaints around sector 4 Etwatwa with his
crew members, Constable
Mkhize and Warrant Officer Makungu. Around 23h00 they were at the
Engen garage where they always buy snacks
and fill in petrol. While
they were at the Engen garage, George came to them and told them that
someone needed help immediately.
He told them that the person is a
taxi owner, his taxi did not come back, its driver’s
whereabouts was unknown, his phone
was off and there were rumours
that the driver was kidnapped. They then asked George to accompany
them to the person and he took
them to 22496 Railway section where
they found a certain gentlemen who was standing there and a taxi was
parked outside. George
introduced the man to them as Tony. They then
started talking to Tony. He explained that the taxi did not park
where it was supposed
to, its driver was nowhere to be found and his
phone was off. He explained that he found his taxi after he had
phoned tracker which
informed him that the taxi was at that address.
[49] He also told
them that at that address they did not want to open the gates for him
when he was knocking. Ultimately a male
person opened the gates for
him. The man who opened the gates for him told him that the driver
was taken by people from Chrystal
Park that day. That was when they
started knocking there. He went to the police van and blew the
siren. A man then came there
and opened the gate for them. They
entered the yard, asked him who he was, he said he was Mr Johannes
Sefatsa (“Aubrey”).
They asked him where was the driver
of the taxi. He said he was not there. As they were talking to him
they were entering the
house. Aubrey pulled out a chair and sat
around the table. Him, his colleagues and Tony were just standing.
He continued asking
Aubrey questions about the driver’s
whereabouts. He said he was taken by people from Chrystal Park. He
also asked him why
did he not report the matter to the police or even
phone 10111 or ask for help from people who were around. He only
told him that
he does not know that place and he took the vehicle to
the plaintiff’s residence. His colleagues also asked him
questions
as to how many people were there when the plaintiff left,
the registration letters and numbers, and the description of the
motor
vehicle they were travelling in. Aubrey could not answer. He
then started apologising. He looked down and said the plaintiff
was
hiding in the house in one of the bedrooms. He then left them in the
kitchen and went to the bedroom next to where they were.
Constable
Mkhize, Warrant Officer Makungu, Tony and Aubrey remained in the
kitchen while he went to look for the plaintiff in
one of the
bedrooms.
[50] He knocked once
at that bedroom and immediately opened the door. He noticed that it
was a bathroom and a toilet and there
was no one inside. He went to
the next room. He also knocked once and opened. The light was on
and he could see that two children
were sleeping on the bed. As he
was standing at the door, he saw the legs of a person protruding from
the bed and the wardrobe.
It was clear that the person was hiding as
he had covered himself with a blanket and lying down on a mat. He
approached him,
woke him up and told him that he was a police
officer. When he opened his face, he could see that he was a male
person. He asked
for his name. He told him that he was Collin. He
then apologised. He instructed him to get dressed and come with him
to the
kitchen. He stood up and said his clothes were in another
room.
[51]
[52] As they went
out of the house, Constable Mkhize, Warrant Officer Makungu, Tony and
the plaintiff were walking in front while
he was following them
together with Aubrey. At that time he was pulling Aubrey as he did
not want to leave. He eventually pulled
him with his hand and his
trouser belt to force him to go with him. All of a sudden he had
someone screaming in Zulu saying “hey
you, what are you doing,
are you running?” He does not know who was screaming and who
was saying so but it was one of his
colleagues who were there. When
he looked he saw the plaintiff on the ground. He did not see what
caused him to be on the ground.
Constable Mkhize then ordered him to
stand up. He was passing there with Aubrey and he put Aubrey in the
van. Collin was helped
to stand up by Constable Mkhize and Warrant
Officer Makungu. He was limping and could not walk properly. He
complained that he
was injured. He was also put in the police van.
They then left to Etwatwa police station. Tony followed them in his
taxi. Aubrey
was locked up and a docket was opened. Both Aubrey and
the plaintiff were arrested for using Tony’s vehicle without
permission.
They were also charged for theft of Tony’s money.
He took Tony’s statement, Constable Mkhize was busy phoning the
paramedics while Warrant Officer Makungu was busy preparing other
documents in the docket.
[53] Realising that
Constable Mkhize was struggling to get hold of the paramedics, they
decided to rush the plaintiff to Phillip
Moyo clinic in Etwatwa.
They found nurses who told them that the doctor was not there and
they were not going to be able to assist
them. They told them to go
to the Far Eastrand hospital in Springs. They also told them that
they did not have an ambulance and
that they should go to the
fire-station. At the fire-station they told them to wait and after
sometime an ambulance arrived.
The plaintiff was put in an ambulance
while they followed him in their vehicle to the Far Eastrand hospital
in Springs where the
plaintiff was further taken to Pholosong
hospital. They guarded him until they finished their shift and other
colleagues came
to relieve them.
[54] He denied that
they assaulted the plaintiff that night. As they were going out of
the plaintiff’s house to the police
van, he lost sight of the
plaintiff as he only concentrated on Aubrey. The plaintiff and
Aubrey were never assaulted in his presence.
[55] Under cross
examination he testified that at the time they spoke to George there
was no suggestion that the taxi was stolen
or used without permission
and that the check in money was stolen. He further testified that
when they reached the plaintiff’s
residence they found the taxi
parked outside and Tony was in control of it as he was already in
possession of its keys. He disputed
that upon their arrival at the
plaintiff’s residence the gates were unlocked and maintained
that Aubrey opened the gates
after he blew the siren. He was then
referred to paragraph 4 and 5 of the statement he made to the police
which read:
“4
George then took us
to address 22496 Railway section where we found Mr Tony Mamogobo who
identified himself as the owner of a White
Toyota Quantum with
registration BL 84 PX GP. He explained to us what his driver known
as Collin has done. Collin did not bring
the money for the check in
and also did not park the vehicle at the usual place. He further
informed us that he was informed by
Tracker Company where the vehicle
was parked.
5
We then went inside
the yard and knocked, and a black male came out and identified
himself as Johannes Sefatsa. When asked about
Collin he told us that
Collin was taken by unknown people in Chrystal Park and he brought
the vehicle to park it at Collin’s
place. We went inside with
him to check if he was telling the truth. We checked the first
bedroom and the toilet and he was not
found. We went into another
bedroom and there we found a black male hiding between the bed and a
wardrobe covering himself with
a blanket.”
[56] He conceded
that if the gate was locked, it was impossible for them to get into
the yard. When asked why does he say the gate
was locked and that he
had to blow the siren, he said yes, the gate was locked that is why
he had to blow the siren. He mentioned
that someone then came and
opened the gate for them. He also said the person who opened the
gate for them took them inside the
house.
[57] When asked why
he did not mention in his statement that when he arrived there, the
gate was locked and he had to blow the siren,
he said he does not
know how he left that out. He was also told that if he says they
were escorted to the house and yard, then
it would have been
unnecessary to knock. His response to that was that when you enter
other people’s houses you do not just
throw yourself in, you
have to knock even if you are escorted by a person from the house.
When told that Warrant Officer Makungu
also said the same thing in
his statement, he said maybe according to him the issue of the gate
was not important.
[58] He further
disagreed that they found Aubrey and the plaintiff’s wife in
the kitchen. He stated that they went with Aubrey
into the house.
He disputed that they assaulted Aubrey in the kitchen. He also
disputed that Aubrey pointed out to them where
the plaintiff was
hiding. He stated that Aubrey just told them that the plaintiff was
in the house. When told that the plaintiff
said three policemen
entered the children’s bedroom where he was found hiding, he
disagreed and said they were three policemen
when they entered the
house but he went to the children’s bedroom alone. When told
that Refilwe testified that she was awaken
by the police in her
bedroom, he said he would not dispute that but what he can say is
that upon his arrival in the children’s
room, the children were
sleeping. When he was in the bedroom, they were still asleep and he
left them sleeping. He disputed that
the plaintiff’s wife was
in the children’s bedroom. He disputed ever assaulting the
plaintiff and maintained that
he never witnessed him being assaulted
by his colleagues in his presence. He disputed that the plaintiff
was pulled from where
he was lying in the children’s bedroom.
He denied that one of the policemen jumped on the children’s
bed to get to
the plaintiff.
[59] He testified
that other than asking the plaintiff his name and ordering him to get
dressed, he did not talk to him about anything.
He disputed that
Tony did not go to the plaintiff’s bedroom when he was going to
dress up with Constable Mkhize and Warrant
Officer Makungu. When
asked why did he not ask the plaintiff as to why was the taxi parked
at his yard, he said the question did
not come to his mind. He was
also asked why did he not ask the plaintiff about the check in money
and why did he not meet with
Tony to give him the money. He said he
believed that the other police officers asked him those questions
when they entered the
house. He kept on saying his focus was on
Aubrey. He conceded that to arrest a person is a serious thing as
his liberty is at
stake. When told that despite all this he was
comfortable to arrest the plaintiff before he had his side of the
story, he said
it was not that easy as he was not comfortable in
doing that. He conceded that without hearing his side of the story,
he could
not have reasonably arrested him but said his side of the
story was heard by his colleagues and all of them as police officers
agreed that he should be arrested.
[60] When told that
as they were going outside the house to the police van, Tony
testified that the plaintiff fell on the lawn,
he stated that he did
observe that he fell on the lawn but he just saw him on the ground.
He was told that the plaintiff testified
that he fell because he was
tripped by one of the policemen. His response was that he did not
see when that happened. He denied
that the plaintiff was assaulted
in his presence.
[61] On paragraph 7
line 3 of his statement he said the following:
“While coming
out of the house with both Collin and Johannes together with Mr Tony,
Collin tried to run away from us but did
not run a distance as he
fell on the ground.”
He was then asked
why he wrote all that in his statement while he said he did not see
what happened. He said what he wrote was
a collection of what his
colleagues saw as they were together. He further stated that the
incident happened when they were together
although he did not see
some of the things. He conceded that his evidence was a combination
of what he knew and what the colleagues
knew. He testified that as
he was passing with Aubrey where the plaintiff had fallen on the
lawn, he realised that he was injured
because he was crying.
[62] Warrant Officer
Sibongile Makungu testified that he is a Warrant Officer employed at
Etwatwa SAPS. He was also on duty on
the evening of the incident
with his crew members, Constable Kgare and Constable Mkhize. They
were posted at sector, Etwatwa
that evening where they were
patrolling, assisting the community and dealing with complaints. He
corroborated the evidence of
Constable Kgare that at 23h00 they went
to the Engen garage where they met George who told them about the
problem of a taxi owner.
They ultimately went to him with George at
No 22946 Railway section where they found him and a taxi parked
outside the yard.
He explained to them how he happened to be there.
He also corroborated the evidence of Tony and Constable Kgare that
the gate
was locked and they blew the siren. Further that after
Constable Kgare had blown the siren, Aubrey came to the gate and
opened
it for them. Constable Kgare then asked Aubrey where was the
plaintiff as they were walking to the house. When they reached the
house, Constable Kgare knocked at the door, Aubrey, with whom they
were, opened the door for them, took a chair and sat next to
a table
in the kitchen. The three policemen together with Tony entered the
plaintiff’s house. George remained outside in
the motor
vehicle. They stood next to the table where Aubrey was sitting and
asked him questions.
[63] He also asked
him where Collin was. Aubrey told them that Collin was not there, he
was kidnapped at Chrystal Park. He also
asked him what did he do
with Collin’s kidnapping, whether he called the police or not
and informed them about it. Aubrey
could not answer their questions.
He also asked him if he had taken down the registration numbers and
letters of the motor vehicle
that took Collin. After all this Aubrey
apologised and told them that Collin was in the house hiding in one
of the bedrooms.
He corroborated the evidence of Constable Kgare
that he left them in the kitchen and went to search the house. Later
on they saw
him coming with a male person from the bedroom. He also
testified that at that time the plaintiff was wearing his underwear
and
socks.
[64] When they came
to the kitchen they asked him why did he not park the taxi at the
garage, why when he was wanted by the owner
of the taxi did he switch
his phone off and why did his friend, Aubrey, tell them that he was
kidnapped whilst he was in the house.
He did not say much to them.
He just apologised. He also corroborated the evidence of Constable
Kgare that when he came out
of the bedroom with the plaintif, he
asked Aubrey and Tony who the plaintiff was and they all confirmed
that it was Collin.
[65] After the
plaintiff had apologised, he together with Constable Mkhize and Tony
went with the plaintiff to his bedroom after
he had asked to go and
get dressed. Inside the room they found a certain lady sleeping.
Constable Kgare and Aubrey remained in
the kitchen. That lady then
gave the plaintiff a trouser, he took out some money from one of its
pockets and put it on the dressing
table. Tony then took the money
and counted it. It was an amount of R350,00. Tony asked him where
was the other money, he did
not respond. They then went out of the
bedroom. Tony also asked him where was the money for Sunday and he
did not respond.
[66] He corroborated
Constable Kgare’s evidence that at that time Constable Kgare
informed the plaintiff and Aubrey that they
were under arrest for
using the motor vehicle without the owner’s consent and for
theft. Furthermore that after he had read
out their constitutional
rights to them, they left the house to the police van. As they were
leaving the house at the stoep outside
the house, the plaintiff
started to run. They chased after him. They were able to catch him
while he was still in the yard.
He fell next to the gate on the
lawn. They lifted him up. After that he complained that he was
injured. They went out of the
yard to the motor vehicle holding him.
He and Constable Mkhize assisted the plaintiff to get into the
police van. Constable Kgare
also put Aubrey inside the police van.
They then drove to the police station and Tony followed them in his
taxi. After they did
their paperwork, they locked Aubrey in the
cells while the plaintiff was taken to Pholosong hospital as
Constable Kgare testified.
[67] When asked
whether he saw children at the plaintiff’s house he said he
would be lieing if he said he saw them. He corroborated
Tony and
Constable Kgare’s evidence that Aubrey told them that after the
plaintiff was kidnapped, he drove the taxi to the
plaintiff’s
residence. He was also asked what caused the plaintiff’s fall
when they were going to the police van outside.
He testified that he
was running away, he slipped and fell because the previous day it was
raining. He disputed that Aubrey was
assaulted in the house in his
presence. He testified that when Constable Kgare went to search for
the plaintiff in the house,
he remained in the kitchen with Aubrey.
From where he was sitting he could not see what was happening in the
bedroom where the
plaintiff was found as he concentrated on Aubrey
with whom he was with. He also disputed that the plaintiff and
Aubrey were assaulted
outside the house.
[68] Under cross
examination he conceded that the occurrence book completed by
Constable Kgare only mentioned that the plaintiff
and Aubrey were
arrested for using the motor vehicle without the owner’s
consent and not theft. He also conceded that on
the warning
statement of the plaintiff and the SAP 28 the charge of using the
motor vehicle without the owner’s consent is
only mentioned.
He disputed that the plaintiff was only arrested for using the motor
vehicle without the owner’s consent.
He confirmed that
Constable Mkhize was still employed by the SAPS when he was giving
evidence and that he was in Durban on that
day. He also confirmed
that when they arrived at the plaintiff’s residence the taxi
was parked outside the yard and the
gates were locked. He conceded
that he did not mention in his statement that the gate was locked.
When told that Constable Kgare
testified that the three of them
discussed what they were going to say, he said he did not discuss his
statement with anyone.
[69] He conceded
that he also did not mention in his statement that Constable Kgare
blew the siren to enable people at the plaintiff’s
residence to
unlock the gate. He was also referred to paragraph 4 line 5 of the
statement he made to the police where the following
is stated:
“We entered
inside house number 22496, found one black male in the kitchen. We
asked him where is Collin. He told us Collin
is not in the house.”
When asked who was
the black male they found in the house, he said it was Aubrey. He
testified that Aubrey is the person who opened
the gate for them and
explained that the reason why he said he found Aubrey in the kitchen
was because he was walking behind him
from the gate.
[70] He disputed
Aubrey’s evidence that he did not unlock the gate for them and
that they found him in the kitchen. He also
disputed that they
entered the kitchen and immediately started to assault him.
[71] He confirmed
Constable Kgare’s evidence that he was the one who went to the
bedrooms to search for the plaintiff and
that while they were in the
kitchen, they all asked the plaintiff questions. He disputed that
Constable Kgare was with Constable
Mkhize when he went to the
children’s bedroom where he came back with the plaintiff. He
also disputed that the three of
them entered the children’s
bedroom and assaulted the plaintiff. He testified that he asked the
plaintiff when he came out
of the bedroom as to where were his
clothes, why did he not park the vehicle at the garage and why did
Aubrey lie to them about
the kidnapping. He further asked him what
was happening that he ended up hiding himself.
[72] The plaintiff
then showed him where he left his clothes. He corroborated Constable
Kgare’s evidence that himself, Constable
Mkhize, Tony and the
plaintiff went to the plaintiff’s bedroom to allow him to
dress. He corroborated Constable Kgare’s
evidence that when
they left the plaintiff’s bedroom after he had dressed,
Constable Kgare told the plaintiff and Aubrey
that they were under
arrest and explained their constitutional rights to them. After this
they left the house. He disputed the
plaintiff’s evidence that
as they were outside, they tripped him and he fell to the ground.
Further that while he was on
the ground, they kicked him as a result
of which his right leg was injured. He testified that he only heard
at the hospital that
the plaintiff broke his tibia and fibula and
that a plaster of paris was put from his leg to the knee.
[73] Under
re-examination he testified that he did not read the occurrence book
that Constable Kgare wrote and that according to
the cover of the
docket the plaintiff was arrested for theft and using the motor
vehicle without the owner’s consent. He
further testified that
he never entered the children’s bedroom.
[74] The following
paragraphs of the plaintiff’s particulars of claim read as
follows: “CLAIM A
5
On or about 23 April
2012 and at or near number 22496 Ntsibande Street, Thulani section,
Etwatwa extension 1, Daveyton, Ekurhuleni,
police officers whose
names and ranks are unknown to the plaintiff unlawfully assaulted the
plaintiff by inter alia:
5.1 punching
plaintiff with their fists all over plaintiff’s body, and
5.2 kicking
plaintiff all over plaintiff’s body.
6
At all material
times hereto, the unknown police officers were acting within the
course and scope of their employment with the first
defendant and
were in the unlawful employment of the first defendant.
7
As a result of the
assault the plaintiff sustained the following injuries:
7.1 a fracture of
the right leg;
7.2 he suffered
contumelia, pain and suffering, shock and discomfort;
7.3 he had to
receive medical treatment at Pholosong Hospital from 23 April 2012
until 26 April 2012;
7.4 he has to
undergo future medical treatment.
8
As a result of the
assault the plaintiff suffered damages in the amount of R800 000,00
made up as follows:
8.1 Past medical
expenses in the amount of R100 000,00
8.2 Future medical
expenses in the amount of R100 000,00
8.3 General damages
in the amount of R600 000,00 for pain and suffering, discomfort, loss
of amenities of life, shock and contumelia;
and
CLAIM B
On or about 23 April
2012 and at or near number 22496 Ntsibande Street, Thulani section,
Etwatwa extension 1, Daveyton, Ekurhuleni,
plaintiff was unlawfully
arrested without a warrant by police whose names and ranks are
unknown to the plaintiff.
Plaintiff was
thereafter detained at Pholosong Hospital under police guard for 3
days at the instance of the defendant and unknown
police officers.
Plaintiff was
subsequently released as the case against him was marked nolle
prosequi without plaintiff having to appear at court.
As a result of the
conduct of the defendant and the unknown police officers the
plaintiff has suffered damages in the sum of R100
000,00 for:
15.1 Loss of
freedom;
15.2 Contumelia;
15.3 Shock and
discomfort.”
[75] The defendant
pleaded as follows to paragraphs 5,6,7 and 8 of the plaintiff’s
particulars of claim:
“5
AD PARAGRAPH 5
The content hereof
is denied and the plaintiff is put to the proof thereof.
AD PARAGRAPH 6
The defendant denies
the content hereof as if specifically traversed and the plaintiff is
put to the proof thereof.
AD PARAGRAPH 7 and 8
The content hereof
is denied and the plaintiff is put to the proof thereof.”
[76] Further to
paragraphs 11,12,14 and 15 of the plaintiff’s particulars of
claim he pleaded as follows:
“the defendant
bears no knowledge of this paragraph, hence same is accordingly
denied and the plaintiff is put to the proof
thereof.”
[77] The issues for
determination are whether the arrest and detention of the plaintiff
were unlawful, whether he was indeed assaulted
and whether the
injuries allegedly sustained were as a result of the assault by
members of the defendant.
[78] Section
40(1)(b) of Act 51 of 1977 (“the Criminal Procedure Act”)
provides that a peace officer may without a warrant
arrest any person
whom he reasonably suspects of having committed an offence referred
to in schedule 1, other than an offence of
escaping from lawful
custody.
[79] As was held in
Duncan v Minister of Law and Order (1986)2 ALL SA 241(A)at 248 the
jurisdictional facts for a section 40(1)(b)
defence are that:
79.1 the arrestor
must be a peace officer;
79.2 the arrestor
must entertain a suspicion;
79.3 the suspicion
must be that the suspect (arrestee) committed an offence referred to
in Schedule 1; and
79.4 the suspicion
must rest on reasonable grounds.
[80] It is trite
that the onus rests on the defendant to justify an arrest. As Rabie
CJ explained in Minister of Law and Order
and Others v Hurley and
Another
1986 (3) SA 568
at 589 E-F:
“An arrest
constitutes an interference with the liberty of the individual
concerned, and it therefore seems fair and just
to require that the
person who arrested or caused the arrest of another person should
bear the onus of providing that his action
was justified in law.”
[81] In Zealand v
Minister of Justice and Constitutional Development and Another
[2008] ZACC 3
;
2008
(6) BCLR 601(CC)
at para 25 the Constitutional Court in affirming
this principle said:
“It has long
been firmly established in our common law that every interference
with physical liberty is prima facie unlawful.
Thus, once the
claimant establishes that an interference has occurred, the burden
falls upon the person causing that
interference to
establish a ground of justification.”
[82] Van Heerden JA
in Duncan v Minister of Law and Order at 248 - 249 referred to supra
said the following:
“If the
jurisdictional requirements are satisfied, the peace officer may
invoke the power conferred by the subsection, i.e.
he may arrest the
suspect. In other words, he then has a discretion as to whether or
not to exercise that power (of Holgate-Mohammed
v Duke E
[1984] 1 ALL
ER 1054
HL at 1057). No doubt the discretion must be properly
exercised.”
[83] In R v Van
Heerden
1958 (3) SA 150
(T) the court held that the suspicion must be
reasonable and the test for such reasonableness is objective.
[84] The approach to
be adopted in considering whether the suspicion was reasonable is the
one followed by Jones J in Mabona and
Another v Minister of Law and
Order and Others
1988 (2) SA 654
(SE) at 658 F-H:
“It seems 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; i.e. 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 only 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 sufficient high quality and
cogency to engender
in him a conviction that the suspect is in fact
guilty. The section requires suspicion but not certainty. However,
the suspicion
must be based on solid grounds. Otherwise, it will be
flighty or arbitrary and not a reasonable suspicion.”
[85] At paragraph 25
of its judgment, the court in Minister of Safety and Security v
Sekhoto and Another 2011(1) SACR 315 (SCA)
said the following:
“It could
hardly be suggested that an arrest under the circumstances set out in
section 40(1)(b) could amount to a deprivation
of freedom which is
arbitrary or without just cause, in conflict with the Bill of Rights.
A lawful arrest cannot be arbitrary.”
[86] The court in
the Sekhoto matter (supra) went on at paragraph 44 of the judgment to
say:
“While the
purpose of arrest is to bring the suspect to trial, the arrestor has
a limited role in that process. He or she
is not called upon to
determine whether the suspect ought to be detained pending a trial.
That is the role of the court (or in
some cases a senior officer).
The purpose of arrest is no more than to bring the suspect before the
court (or the senior officer)
so as to enable that role to be
performed. It seems to me to follow that the enquiry to be made by
the peace officer is not how
best to bring the suspect to trial: the
enquiry is only whether the case is one in which that decision ought
properly to be made
by a court (or the senior officer). Whether his
decision on that question is rational naturally depends upon the
particular facts,
but 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.”
[87] Innes ACJ
articulated the following principle in Shidiack v Union Government
(Minister of Interior)
1912 AD 642
at 651-652:
“Now it is
settled law that where a matter is left to the discretion or the
determination of a public officer, and where his
discretion has been
bona fide exercised or his judgment bona fide expressed, the court
will not interfere with the result. Not
being a judicial functionary
no appeal or review in the ordinary sense would lie, and if he has
duly and honestly applied himself
to the question which has been left
to his discretion, it is impossible for a Court of Law either to make
him change his mind or
substitute its conclusion for its own…
There are circumstances in which interference would be possible and
right. If for
instance an officer acted mala fide or from ulterior
and improper motives, if he had not applied his mind to the matter or
exercised
his discretion at all, or if he has disregarded the express
provisions of a statute – in such cases the court might grant
relief. But it would be unable to interfere with a due and honest
exercise of discretion, even if it considered the decision
inequitable or wrong.”
[88] In Charles v
Minister of Safety and Security 2007(2) SACR 137(W) Goldblatt J at
p144 B-D said the following:
“The
Legislature having granted a peace officer the right to make an
arrest in the circumstances set out in S40 has created
a situation
where due compliance with such section by a peace officer is lawful
and affords such peace officer protection against
an action for
unlawful arrest. In my view, the court has no right to impose
further conditions on such persons. To do so would
open a Pandora’s
box where the courts would be called upon in cases of this type to
have to enquire into what is reasonable
in a variety of circumstances
and further where peace officers would be called upon to make value
judgments every time they effect
an arrest in terms of section 40.
These judgments which they would have to make would later have to be
considered and tested by
judicial officers attempting to place
themselves in the shoes of the arresting officer.”
[89] The three
police officers, Constable Kgare, Constable Mkhize and Warrant
Officer Makungu went to the plaintiff’s residence
after being
summoned by a member of the public, George, from the Engen garage
that Tony had a problem with the driver of his taxi.
They met with
Tony who informed them of his problem and they then entered the
plaintiff’s homestead as a result of which
Aubrey was
questioned about the whereabouts of the plaintiff. Issues relating
to whether the gates at plaintiff’s residence
were locked or
open when the police arrived and the allegations of assault of Aubrey
by the police are not relevant except to assist
the Court in
determining the credibility of the witnesses. After the plaintiff
who was alleged to have been kidnapped by people
from Chrystal Park
was found in the house, the money collected on the day of the
incident in the amount of R350,00 was given to
Tony. It was clear
from the evidence that the money collected on that day was supposed
to have been an amount of R600,00 but Tony
only received R350,00 and
the plaintiff did not account for the shortage. Tony testified that
the reason he started calling the
plaintiff during the day was
because the plaintiff did not bring the money he collected on Sunday,
a day prior to the incident.
It is also common cause that on the
night in question the plaintiff did not park the taxi at the Engen
garage where it was supposed
to have been parked. Tony was not told
anything as he tried to phone the plaintiff but to no avail. The
plaintiff was then arrested
for theft and for using the motor vehicle
without owner’s consent. A docket was opened. Tony’s
statement and those
of the three members of the defendant were taken.
[90] An issue was
raised with the police officers that when they arrived at the
plaintiff’s residence they found Tony already
in control of the
taxi, why then did they arrest the plaintiff. Tony was also asked
what happens when a taxi driver is short of
his daily takings,
whether that is theft or not. There were also issues of the
occurrence book not mentioning the charge of theft,
etc. These issues
are irrelevant to the questions whether the arrestor who arrests a
suspect without a warrant entertained a suspicion
that a Schedule 1
offence was committed and whether the suspicion was based on
reasonable grounds. As was held in Mabona (supra),
it is not
required that the information at the disposal of the arrestor must be
of sufficient high quality and cogency to engender
in him a
conviction that the suspect is in fact guilty. The section requires
suspicion but not certainty and the suspicion must
be based on solid
grounds. Furthermore the plaintiff and his witnesses’ evidence
differed as to whether the police spoke
to him. His evidence and that
of Refilwe was that the police did not speak to him but just started
to assault him while his wife
testified that they asked who he was
and he said he was Collin. Even though the witnesses of the plaintiff
disputed that the plaintiff
was taken to the dining room where the
police were asking him questions regarding the issue of the taxi and
the check in money,
I find this version of events improbable that the
police could have just assaulted him when they found him where he was
hiding
as alleged without asking who he was, introducing themselves
to him, explaining the purpose of their visit and verifying the
information
they had at the time. The evidence of the police officers
to a large extent corroborated each other and that of Tony. They did
not seem to be bad witnesses except to say that Constable Kgare at
some stage was evasive when he responded to certain questions
to the
extent that he ended up saying that his evidence was a combination of
what he observed and what his colleagues observed
as they discussed
what their evidence was going to be. His evidence cannot on this
basis be relied upon as it was not logical
and credible. The court
found Warrant Officer Makungu to have been a candid, logical,
credible and good witness who was able to
give a full account of what
transpired on the evening of the incident. There were minor
discrepancies between his evidence and
that of Tony, which cannot be
regarded as material. For instance, issues of whether Tony entered
the plaintiff’s bedroom
with them when the plaintiff went to
dress. Such discrepancies are acceptable taking into account that the
incident happened in
2012. It cannot be expected that witnesses will
be able to remember everything that happened after a period of two
years has lapsed
since the incident. I find the evidence of the
defendant that they asked the plaintiff as to why he hid himself,
lied that he
was kidnapped, parked the taxi at his residence and not
it at the engen garage, after confirming that he was the person they
were
looking for, probable.
[91] It is clear
from the evidence that the police officers followed the information
given by George which led them to the plaintiff’s
house where
they met the complainant, Tony, who confirmed the information George
gave them. From that information they got further
information from
Aubrey, they found the taxi at the plaintiff’s premises and
were able to find the plaintiff who was hiding
in the house for them.
[92] The plaintiff
under cross examination conceded that there were problems between him
and Tony regarding his daily takings.
The amount of R350,00 that was
given to Tony in the presence of the police was also short. He
testified that he was supposed to
have collected R600,00. From this
evidence and looking at the test referred to in Duncan (supra) in
relation to the four jurisdictional
facts for a s40 (1)(b) defence, I
find that the defendant was able to prove all the jurisdictional
facts. I also find that members
of the defendant, whether Constable
Kgare or the three of them had sufficient information which they were
able to analyse and assess
critically before they decided to arrest
the plaintiff. They did not accept it lightly or without checking it
where it can be
checked. No evidence was led that they were mala
fide in the exercise of their discretion. I therefore cannot find
any reason
to criticise them for arresting the plaintiff. I find
that the arrest and the detention of the plaintiff were justified
under
the circumstances.
[93] Further
evidence was led that plaintiff was assaulted all over his body by
members of the defendant by slapping and kicking
him with booted feet
which allegations were disputed by the defendant. According to the
defendant, the plaintiff slipped and fell
when he attempted to run
away from his members in the yard. The plaintiff alleges that he was
tripped and assaulted by members
of the defendant. Although the
plaintiff and his witnesses maintained that he was assaulted by
members of the defendant, Pholosong
Hospital records where the
plaintiff was treated after the incident, state on pages 31 and 41
that he was assaulted by members
of the public and thugs and on page
35 it is stated that he was assaulted by the police. This aspect was
not dealt with by the
plaintiff except to say that evidence was led
to the effect that the plaintiff and his witnesses disputed that he
was assaulted
by members of the public and /or thugs.
[94] Counsel for the
plaintiff submitted that the allegations made in the medical records
from Pholosong Hospital are hearsay and
were not corroborated by
evidence. The defendant intended calling the doctor and the nursing
sister who treated the plaintiff
at Pholosong Hospital but the
witnesses were not called to testify. No evidence was led that the
plaintiff laid charges against
the members of the defendant for
assault. No J88 was produced except the medical records from
Pholosong Hospital and the medico-legal
report by Dr E Gants, the
orthopaedic surgeon. Pholosong Hospital records were discovered by
plaintiff. They contradict plaintiff’s
evidence. The
plaintiff did not deal with the discrepancies as alluded to above. I
do not agree with plaintiff’s counsel’s
submission that
the information from Pholosong Hospital is hearsay and that it should
therefore be ignored because no witness was
called to deal with it.
The onus did not rest on the defendant to prove the alleged assault
on the plaintiff.
[95] The plaintiff
has to prove his case on a balance of probabilities. This degree of
proof required by the civil standard of
proof involves a comparative
rather than a qualitative test. What is weighed in the comparative
balance is not a quantity of evidence
but the probabilities arising
from that evidence and all the circumstances of the case. In
National Employers Mutual General Insurance
Association v Gany
1931
AD 187
at 199 the following statement was made:
“Where there
are two stories mutually destructive, before the onus is discharged,
the Court must be satisfied upon adequate
grounds that the story of
the litigant upon whom the onus rests is true and the other is
false.”
[96] The plaintiff
has therefore failed to discharge the onus that rested on him to
prove on a balance of probabilities that he
was assaulted by members
of the defendant.
[97] In the result I
make the following order:
97.1 The plaintiff’s
claim is dismissed with costs.
M J TEFFO
Judge of the High
Court South Gauteng Local Division, Johannesburg
Appearances:
For the
Plaintiff : Advocate J.T. Zitha
Instructed by :
HC Makhubele Inc
For Defendant :
Advocate D.J Erasmus
Instructed
by : The State Attorneys
Heard on : 11
August 2014
Judgment
delivered : 26 September