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[2014] ZAGPJHC 279
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Cwaile v Minister of Police and Others (2012/45728) [2014] ZAGPJHC 279 (24 October 2014)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
(GAUTENG LOCAL
DIVISION, JOHANNESBURG)
CASE
NO: 2012/45728
DATE:
24 OCTOBER 2014
In the matter
between
NOMCEBO SYLVIA
CWAILE
..............................................
PLAINTIFF
And
THE MINISTER OF
POLICE
...............................
FIRST
DEFENDANT
CONTABLE
MOTLEPA
.................................
SECOND
DEFENDANT
CONSTABLE
MKHONTO
................................
THIRD
DEFENDANT
Criminal Procedure –
delict - unlawful arrest and detention - without warrant - arrest and
detention admitted in defendants’
plea - onus on defendants to
prove lawfulness – evidence - mutually destructive versions
before court - evidence adduced
on behalf of defendants held to be
credible - plaintiff’s version improbable - material
contradictions between plaintiff’s
evidence and allegations
pleaded as well as contents of statutory demand - ineptness of
defendants’ legal representatives
-admission held procedural
blunder - court’s duty to ensure that justice is done - false
evidence fatal to claim –
claim dismissed.
Delict –
assault – denied by defendants - onus on plaintiff - discharge
of - plaintiff’s evidence improbable -
failure to discharge
onus - claim dismissed.
Costs - dilatoriness
of defendants’ legal representatives in conduct of case -
court’s disapproval thereof to be reflected
in costs order - no
costs order made and defendant’s counsel disentitled to recover
fees.
J U
D G M E N T
VAN OOSTEN J:
[1] This is an
action for damages for unlawful arrest and detention (claim A) and
assault (claim B). The incident from which the
claims arise occurred
on 26 March 2011, in Turfontein, Johannesburg. It is the plaintiff’s
case that she was unlawfully arrested
by members of the South African
Police Service, that she was assaulted by them and then taken to the
Booysens police station where,
in the charge office area, she was
again assaulted and detained until she was released a few hours
later, without having been
charged. The defendants’ plea
contains a denial of the assault but an admission that the plaintiff
was arrested and thereafter
detained at the Booysens police station.
It is further pleaded that the plaintiff’s arrest was lawful in
that the arresting
officers ‘suspected the plaintiff of having
committed the offence of interfering with the police’.
[2] The plaintiff
testified and called Ms Zanele Zulu to give evidence. The defendants
adduced the evidence of the second and third
defendants, who are both
constables in the South African Police Service (I shall henceforth
refer to them by their names).
[3] The plaintiff’s
version, and that of Ms Zulu, is the following: during the evening of
the incident the plaintiff, Ms Zulu
and another person were
passengers in an Almera motor vehicle, which was driven by Ms Zulu’s
brother, in Turfontein. The
vehicle was zigzagging across the road
and the driver, notwithstanding a police vehicle siren alarm for it
to stop, failed to do
so. They reprimanded him to stop and he came to
a standstill. Members of the SAPS arrived at their vehicle and pulled
and dragged
them all out of the vehicle. They were ordered to lie
face down on the ground with their hands behind their heads. The
plaintiff
was kicked by one of the police officers on the neck, at
the back of her head and also all over her body. All other police
officers
left the scene and the plaintiff and Ms Zulu were taken to
and put into the back of the police van. While inside the van they
were
pepper sprayed by the police, being Constables Motlape and
Mkhonto. The driver of the Almera smelled of liquor and was suspected
of drunken driving. On their way to the police station he was
off-loaded at the Metro offices for blood tests. They eventually,
after some two hours driving, arrived at the Booysens police station
and were taken to the charge office area. Ms Zulu requested
that her
handcuffs be released as they were too tight and hurting her. One of
the police officers, who both witnesses identified
as Cnst Motlape,
jumped over the counter and, according to the plaintiff, slapped Ms
Zulu in the face. He tightened her handcuffs
which prompted the
plaintiff to ask why he was doing this to her. He then also slapped
the plaintiff in the face. She needed to
go to the toilet and one of
the female police officers escorted her there. She made no mention to
her of the assault nor did she
at any time lay a charge of assault
against the police officers. The plaintiff started crying, referred
to her children at home
and pleaded for her release. She was then
released and allowed to go home in the Almera, although she had told
them that she was
not in possession of a driver’s licence.
[4] The version of
the two police constables stand in stark contrast to that of the
plaintiff. They corroborated each other on all
material aspects.
Their version is the following: they were on night shift patrol duty
in Main street, Turfontein, when they observed
the Almera zigzagging
across the road. They decided to stop the Almera and the siren and
blue lights were activated. The driver
failed to stop and
accelerated. In pursuing the Almera, Cnst Mkhonto called for back-up
over the radio. He was however, informed
that the Almera had already
been intercepted some distance ahead, at the corner of Tromway
street, by members of the SAPS, and
they proceeded there. On their
arrival at the scene other members of the SAPS were present and the
driver and passengers of the
Almera were lying face down on the
ground. The driver was asked to stand up and he smelled of liquor. He
was unable to produce
a driver’s licence and admitted not
having one. He was arrested and escorted to the police vehicle. Ms
Zulu approached them
at the police vehicle and shouted that they
could not arrest her younger brother and that he was driving the
vehicle for her. She
started swearing at them saying that that they
were stupid and uneducated. She attempted to prevent them from
opening the door
of the police van and also tried to pull her brother
out of the back of the van. Despite warnings to desist from
interfering with
their duties she persisted and was arrested,
handcuffed and also put into the back of police van. The driver and
Ms Zulu who were
now in the back of the police vehicle, were taken to
the Booysens police station. There they sought and obtained
permission form
the Commanding Officer to take the driver for blood
tests and Cnst Motlepa later took him to the Metro offices. They saw
the plaintiff
for the first time in the client services section of
the police station. The Almera was brought to the police station by
the other
police officers, who had been at the scene. The plaintiff
started abusing them in saying that they were stupid and that they
did
not know their job. They warned her twice to refrain from
interfering with their duties. The plaintiff smelled of liquor and
was
aggressive. Ms Zulu’s handcuffs were removed by Cnst
Motlepa. Ms Zulu handed the keys of the Almera to the plaintiff who
signed for them in Cnst Mkhonto’s pocket diary, whereafter she
left. They denied and remained adamant that the plaintiff was
not
arrested, detained, or charged or assaulted in their presence.
[5] On the pleadings
the plaintiff bears the onus of proving the assault while the
defendants bear the onus of proving that the
arrest was lawful
(Minister of Law and Order and another v Dempsey
1988 (3) SA 19
(A)
38 B-C; Zealand v Minister of Justice and Constitutional Development
and another
[2008] ZACC 3
;
2008 (4) SA 458
(CC) para 24 and 25). Starting with the
assault, as for credibility, the plaintiff’s version in my view
reveals certain improbabilities.
It is, for one, improbable that the
police officers would have assaulted the plaintiff in the manner they
are alleged to have done,
for no reason at all. I have carefully
observed the two witnesses for the defendant while giving evidence:
they both impressed
me as honest and reliable witnesses. On their
version insulting remarks were made by Ms Zulu and she attempted to
protect her brother.
Rightly or wrongly so, they considered her
conduct to constitute interference with their official duties. She
was arrested and
a police docket opened against her. The outcome of
the investigation has not been revealed to this court. Their version
accords
with the probabilities. Counsel for the defendant referred to
the too many cases of unjustified, unprovoked police brutality before
our courts and submitted that the plaintiff, likewise, could have
suffered the same fate. I am unable to agree. Police brutality,
although occurring, can never be elevated to a norm and each case
must be considered on its own facts. On the other hand, it should
also be remembered that the Minister of Police remains a soft target
for bogus claims. The improbability I have referred to exists
on the
evidence as a whole, in particular having regard to the credibility
findings I have made.
[6] The plaintiff
testified that she sustained no injuries as a result of the assault
except for painful eyes resulting from the
pepper spray and slight
uneasiness in swallowing the next day. In the plaintiff’s
particulars of claim it is alleged that
the plaintiff as a result of
the assault, inter alia ‘had abrasions all over her body’.
These allegations stand in
stark contradiction to her evidence and,
at best for the plaintiff, is indicative of extreme exaggeration. I
am alive to the fact
that the plaintiff was not challenged on this
aspect in cross-examination but, the contradiction remains
unexplained. It is moreover
true that no evidence was called to
gainsay the plaintiff’s version concerning the assault at the
scene before the arrival
of defendants’ witnesses, but the
absence of such evidence, in my view, does not cure the difficulties
I have referred to.
I am accordingly not satisfied that the plaintiff
has discharged the onus on the assault claim.
[7] In regard to the
plaintiff’s claim for unlawful arrest and detention the
defendants bear the onus of proving that the
arrest and detention
were lawful. I have already assessed the credibility of the
defendants’ witnesses. Counsel for the
plaintiff was driven to
concede as much. Their evidence however, contradicts the defendants’
plea in which, as I have already
pointed out, the arrest and
detention are admitted. This brings to the fore the manner in which
the defendants’ case was
conducted by the defendants’
legal representatives. An absence of diligence and proper preparation
of the case is quite apparent:
counsel for the defendant omitted to
challenge important aspects of the plaintiff’s case and several
material allegations
in the evidence of the plaintiff’s
witnesses were left unchallenged in cross-examination. In fact,
propositions put to the
plaintiff’s witnesses in
cross-examination either contradicted the defendants’ plea or,
are plainly irreconcilable
with the evidence adduced on behalf of the
defendants. This, of course, provided ample fertile ground to counsel
for the plaintiff,
in argument, to attack the credibility of the
defendant’s witnesses. But, nothing was advanced to justify any
negative finding
concerning the inherent quality and credibility of
those witnesses. I am satisfied that the admission is nothing but a
procedural
blunder resulting from ineptness to be attributed to the
defendants’ legal representatives.
[8] A further
disturbing feature has come to the fore during my preparation for the
judgment. In the statutory letter of demand
addressed to the first
defendant by the plaintiff’s attorneys of record, dated 20
September 2011, the following is recorded
(in paragraph 3 thereof):
‘Subsequent to
her arrest she [the plaintiff] was taken to Booysens police station
and then she was detained at the Johannesburg
Central SAPS Cells’.
The demand letter
forms part of the documents bundle before me in regard to which it
was agreed, at the pre-trial conference, that
the documents are what
they purport to be. Neither party, at any stage, dealt with or
referred to the obvious contradiction I have
referred to. The
omission by both parties is inexcusable. This court however, is not
only entitled but also duty-bound to take
cognisance thereof.
Litigants should never be allowed to mislead the court even if, as a
result of the negligence or dilatoriness
of legal representatives,
obvious inconsistencies are not disclosed. It is the duty of the
court to ensure that justice is done.
The allegation that the
plaintiff was detained at Johannesburg Central SAPS cells can in no
way be reconciled with the evidence
of either the plaintiff or Ms
Zulu. I am accordingly of the view that the plaintiff’s
version, in the face of the reliable
and honest version of the police
officers, appears to be fabricated, if not concocted, and that a
grave injustice will result
if any reliance by
this court is placed on that evidence. I am accordingly constrained
to find that the plaintiff’s claim
in respect of the alleged
arrest and detention is based on false evidence and that it
accordingly, for that reason alone, is doomed
to failure.
[9] As to costs, I
propose, as a mark of this court’s disapproval of the manner in
which the defendants’ case was conducted,
firstly, to make no
order as to costs and secondly, to order that counsel for the
defendant is not entitled to recover any fees
in regard to this
matter.
[10] In the result
the following order is made:
1. The plaintiff’s
claims are dismissed.
2. No order as to
costs is made.
3. Counsel for the
defendant may not recover any fees from the defendants’
attorneys of record relating to this matter.
FHD VAN OOSTEN
JUDGE OF THE HIGH
COURT
COUNSEL FOR
PLAINTIFF ADV DJ COMBRINK
PLAINTIFF’S
ATTORNEYS BESSINGER ATTORNEYS
COUNSEL FOR
DEFENDANTS WITHELD
DEFENDANTS’
ATTORNEYS THE STATE ATTORNEY
DATE OF
HEARING 22 & 23 OCTOBER 2014
DATE OF
JUDGMENT 24 OCTOBER 2014