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[2014] ZAGPJHC 344
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Bantu v Minister of Police and Another (13/13609) [2014] ZAGPJHC 344 (21 November 2014)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
CASE
NO: 13/13609
DATE:
21 NOVEMBER 2014
In the matter
between:
NDIZANA MZOLISI
BANTU
..............................................................
Plaintiff
And
MINISTER OF
POLICE
..........................................................
First
Defendant
PASSENGER RAIL
AGENCY OF SOUTH AFRICA
(PRASA)
............................................................................
Second
Defendant
J U
D G M E N T
MAKUME, J:
BACKGROUND
[1] In this action
the plaintiff claims damages against the defendant arising out of his
arrest, detention and assault at the hands
of policemen and officials
employed by the first defendant. The claim against the second
defendant was by agreement withdrawn and
each party agreed to pay own
costs. This judgment is accordingly only against the first defendant.
THE PLEADINGS
[2] The plaintiff
claims the sum of R180 000,00 (One Hundred and Eighty Thousand Rand)
being in respect of the unlawful arrest,
detention, discomfort and
contumelia and the sum of R100 000,00 (One Hundred Thousand Rand)
being for the assault.
[3] The plaintiff
detailed that his arrest by W/O Hobjane, Shibambu as well as one
Mavhunda was unlawful as there were no reasonable
grounds for such
arrest and that it was carried out maliciously without intending to
bring him before a court of law. He remained
in custody for 48 hours.
[4] The plaintiff
further detailed the assault perpetrated by the police officers on
him during his arrest and states that he was
handcuffed tightly and
his wrists twisted, he was threatened with shooting and whilst at the
back of the police vehicle it was
driven erratically as a result he
was flung around inside the moving police vehicle.
[5] In his plea the
defendant admits that its employees namely Hobjane and Shibambu
arrested the plaintiff without a warrant of
arrest on the 30th
October 2012. The defendant pleads that such arrest was lawful as in
terms of section 40(1)(a) of Act 51 of
1977 the plaintiff attempted
to commit an offence or was committing an offence of interfering with
police duties in the presence
of the said police officers. The
defendant denies that any of its employees assaulted the plaintiff.
EVIDENCE
[6] Having accepted
the onus to begin and prove his case the plaintiff testified and
called two witnesses who testified in support
of his case. Inter alia
the plaintiff testified that:
6.1 He was born on
the 4th February 1984 and was 30 years old when he testified.
6.2 He is employed
as a security officer by a company called 24/7 Security Services in
Roodepoort and lives at Kagiso in the West
Rand. He passed matric.
6.3 On Tuesday the
30th October 2012 he was in the company of his wife/girlfriend a
certain Ms Ennie Modiehi Pankisi they both boarded
a train at about
11h50 at Roodepoort Railway Station en route to their home in Kagiso.
They were to alight at Luipaardsvlei Station.
6.4 At about 12
midday the train stopped at Princess Station. Members of Metro
Railways conducted what is known as a stop and search.
This involves
ticket examiners getting onto the train and requesting passengers to
produce valid tickets for the journey.
6.5 Persons who did
not have valid tickets were ordered off the train whereafter they
paid fines and purchased tickets before being
allowed back onto the
train. Those who could not pay were locked up in a cell or a room
adjacent to the railway line at the exit
of the station.
6.6 After about ten
minutes a man wearing a brownish jacket and a white cap spoke on a
loudhailer signalling the train to move on
out of Princess Station.
The train moved but was stopped again to allow some of the people who
had now paid the necessary fines
to get onto the train. People paid
R40,00 fines.
6.7 Some people got
onto the train and it left only to be stopped for the second time as
there were people screaming that they should
not be left behind.
There apparently was some argument between those persons and the
Metro officials.
6.8 This argument
lasted for close to 30 minutes. The plaintiff testified that he was
seated next to the window nearest to the
platform. He peeped through
the open window and asked the Metro official who was in possession of
the loudhailer as to when will
the train depart as it is delaying
them. This Metro official said to him “Voetsek” telling
him that he was too forward
and must sit down. Further insults and
derogatory words were said of the plaintiff. Despite his plea the
Metro official told him
that the train will leave anytime even the
following day.
6.9 At that time a
member of the South African Police who was on the platform joined in
the altercation and told the plaintiff to
go and ask the driver of
the train because the man with the loudhailer does not drive trains.
6.10 The police
officer entered the coach, grabbed the plaintiff by the collar of his
shirt whilst insulting him. Plaintiff pleaded
that he was just asking
and apologised. He was told that his apology meant nothing. The
police officer hit him on the face with
a fist and pushed him away as
a result plaintiff fell on the chair across where he had been seated.
6.11 The man with
the loudhailer hit him on the chest with the loudhailer. The police
officer grabbed him and punched him again
telling him to get out of
the train. The plaintiff asked why he should get off because he is in
possession of a valid train ticket.
They did not tell him why he
should get off. The plaintiff resisted getting off and the two men
were joined by other officers
and pulled him. He held onto a pole in
the middle of the coach resisting to be taken off. They continued
hitting him by clapping
him. The police officer eventually held him
by his testicles and squeezed them hard as a result he let go.
6.12 He was then
taken into the waiting cells at the station after being assaulted
further. Whilst inside the cells he took out
his cellphone and
recorded the insults as they were continuing and also took pictures
including a picture of himself showing his
swollen face and eyes. The
photos were handed up as exhibits.
6.13 Amongst the
pictures are those showing blood on the clothes that he was wearing.
The plaintiff sustained the following injuries:
(a) Bleeding nose;
(b) Swollen eyes;
(c) Chest back pain.
6.14 The plaintiff
had severe pain on his back and had difficulty breathing. He was
taken to Roodepoort Police Station and then
to the hospital. He was
handcuffed tightly causing injury or discomfort on his wrists. When
the police officer drove off from
Princess Railway Station they drove
irrationally causing him to bump around at the back of the police
van.
6.15 The police did
not tell him why he was being arrested they kept on telling him to
“Voetsek”.
6.16 He received
treatment at Discovery Hospital and was then taken back to Roodepoort
Police Station where he was locked up in
a cell. He was handed a
notice of his rights in terms of section 35 of the Constitution
indicating that he is arrested for interference
with the police in
their duty. He was locked up with five people. The cell was dirty
and smelly as the toilet did not flush.
He slept on a dirty smelly
sponge.
6.17 At some stage
the police took his cellphone and deleted the recording he had done
at Princess Station. One of the officers
threatened to shoot him.
This scared him a lot as he knows it is possible. He spent the
Tuesday night and Wednesday in the cells
and on the Thursday the 1st
November 2011 he was taken to court and was released. The prosecutor
declined to prosecute.
6.18 When he left
the court cells at about 12 noon he went to see a Dr Bhika who
examined him and gave him painkillers to treat
the swelling and
inflammation. An injection was also administered.
6.19 He testified
that the whole experience has affected him badly as he is now scared
of police officers, he does not trust them
anymore. He did open a
case of assault against the police but does not know what happened to
the case. He denies that he interfered
with police in executing
their duties.
[7] During
cross-examination it was put to him that he was interfering with
police duties that is why he was arrested. The plaintiff
denied this.
It was also put to the plaintiff that the cause of the injury is
because he fell off the train as he was stepping
out and this injured
his eye. The plaintiff denied this.
[8] On the day in
question he was to report for work at 18h00 for night duty and was in
a hurry to get home so as to prepare himself
to go to work. He uses
a train daily to and from work. He admitted that he did not feel good
about the train having to stop for
such a long time as this was
consuming his time. He however did not lose his temper. He was not
angry and was just concerned.
[9] It was put to
the plaintiff that W/O Hobjane will testify that he and his fellow
police officers were called to the station
and when he and the other
officers were searching one passenger he the plaintiff objected and
asked why has the train been stopped
and why are they searching that
person. The plaintiff denied this and told the court that no one was
being searched.
[10] It was further
put to the plaintiff that W/O Hobjane took exception to his question
as he regarded same as interference with
his duties. The plaintiff
denied that he ever interfered with the police duties because the
people who were checking tickets were
the Metro officials and not the
South African Police.
[11] It was put to
the plaintiff that he became angry and verbally abused the police
calling them stupid whereupon W/O Hobjane told
him that he will
arrest him for interference. The plaintiff replied that W/O Hobjane
will be telling a lie. He reiterated that
the police arrested him
for nothing and just told him that he is too forward.
[12] It was put to
the plaintiff that W/O Hobjane will testify that he grabbed the
plaintiff with the intention to arrest him and
that he the plaintiff
resisted until his colleague Shibambo came to his help. The
plaintiff said that inside the train there was
only one police
officer the rest of the people were Metro officers who pulled and
pushed him. His testicles were painful as a
result of being squashed
hard by W/O Hobjane.
[13] It was put to
the plaintiff that at the door of the train as he and W/O Hobjane and
Shibambo were taking him out of the train
he the plaintiff slipped
and fell as he lost his footing and that he fell face down on the
platform and in the process injured
his right eye. The plaintiff
vehemently denied that is what happened and said that W/O Hobjane
will be lying and questioned how
could he trip and fall if the two
police officers were holding him.
[14] Indeed as the
plaintiff responded I find it difficult to understand how he, the
plaintiff, alone fell. He should have taken
along the two police
officers holding him on each side. This version by the police
officer seems strange.
[15] W/O Hobjane
confirmed that the plaintiff was then handcuffed. When he was
forcefully removed from the train there were about
20 passengers in
there and they all saw what happened.
[16] It was put to
the witness that it is impossible that the police officers would
assault him in that fashion in full view of
the public. The plaintiff
responded that it is not impossible. The police have always done that
and assaulted and manhandled other
people in full view of the public.
His girlfriend was there and saw what happened. She also did not
give any objection like the
members of the public.
[17] When the police
took him to Discovery Hospital one of them Shibambo pulled him by the
handcuffs. Mavhunda also a police officer
handcuffed him tightly.
[18] It was put to
the plaintiff that there is a contradiction between what is contained
in his letter of demand namely Annexure
“B” dated the
19th November 2012 and paragraph 14 of his particulars of claim, in
that in the letter of demand he only
mentions W/O Hobjane as the only
police officer who assaulted him and yet the particulars of claim
mentions two other police officers
namely Shibambo and Mavhunda. He
responded that Shibambo twisted the handcuffs tightly on his wrists.
[19] The plaintiff
responded that he cannot answer to what his legal representative
decided to put down on paper. He stuck by his
version that only W/O
Hobjane assaulted him inside the train and that Shibambo only
handcuffed him and tightened the handcuffs
making his wrists sore.
He added that the reason why Shibambo and Mavhunda are mentioned in
the particulars of claim is because
they were with W/O Hobjane at the
time of his arrest.
[20] The balance of
the cross-examination did not detract the plaintiff from his version
that W/O Hobjane assaulted him inside the
train by hitting him with a
clenched fist in the face. It was once more put to the plaintiff
that W/O Hobjane will testify that
he the plaintiff insulted the
police officer by calling him “stupid” and that is why
they arrested him. The plaintiff
denied having insulted the police
officer. He denied that he was not friendly to the officers. He asked
and expected an explanation
why is the train not leaving he was not
angry but was worried because it was getting late.
[21] He resisted to
get off the train because there was no reason for him to do so as he
had a valid train ticket for the journey.
If there was a good and
valid reason given to him to get off the train he would have obeyed
the instructions from the officers.
[22] It was put to
the plaintiff that if he did not do anything violent the police would
not have taken him off the train. The witness
testified that he did
not fight with the police and he was not in any manner violent.
[23] It was again
repeated to him that W/O Hobjane and Constable Shibambo were
escorting him out of the train when he the plaintiff
tripped on the
train step which is higher than the platform as a result he fell face
down on the platform injuring his eye. Once
more the plaintiff said
it is a lie.
[24] It was put to
the plaintiff that the train was stopped to check for tickets but not
to allow people to pay fines. The plaintiff
said that is what
happened and if they now deny it means the police and the Metro
officials were busy with something unlawful and
were now hiding it
because they had assaulted him.
[25] He was only
told of the reason for his arrest at the time when he was taken to
the cells at Roodepoort and after he had been
handed the notice of
rights in terms of the Constitution.
[26] Whilst the
plaintiff was held in the cells at Princess Station he managed to use
his phone to take pictures and record conversations
of those Metro
officials who were insulting him. When they noticed this they told
W/O Hobjane who then took the phone and deleted
all that he had
photographed and recorded.
[27] The plaintiff
concluded by saying that when the police took him away he did not
even think that he was under arrest. He kept
on asking them where
they are taking him to whereupon the police said that they were going
to beat him up more and more because
he was cheeky.
[28] Answering
questions by the court the plaintiff said that he had a swollen eye
which according to the doctor bled internally,
his nose were bloody,
his hands felt numb like it had cramps, he also had back pain and his
wrists had abrasions.
[29] Mr Tebogo
Reginald Molokwane testified that he is 33 years old and lives in
Kagiso. He knows the plaintiff Mr Ndizane as they
live in the same
section called Sinqobile. It is not long that they have known each
other. They are not friends. He was in the
same train with the
plaintiff on the 30th October 2012.
[30] The witness Mr
Molokwane heard an altercation taking place when the plaintiff
enquired from the Metro official as to when the
train will be
leaving. He saw one police officer and two Metro security officers
enter the train and went to the plaintiff. He
then saw them pull him
out of the train. Between where he was seated and where the plaintiff
was with the police there were people
obscuring him. The police and
the Metro officials stood with their backs to him.
[31] The next thing
he saw the police officers holding the plaintiff by his belt and two
officers held him each one on his side
and they walked off the train
with him. He denied that the plaintiff tripped and fell. He never
testified that the police officer
assaulted the plaintiff inside the
train because he was seated and could not see everything.
[32] Ms Ennie
Modiehi Pankisi testified that she is 31 y ears old and lives at 148
Mompi Street in Kagiso. She works at a Chicken
Licken outlet in
Krugersdorp. On the 30th October 2012 she was in the company of the
plaintiff. Both of them had boarded a train
at Roodepoort Train
Station en route to Luipaardsvlei. The time was about 11h00 in the
morning when they went to catch the train.
They sat next to each
other.
[33] She testified
further that she and the plaintiff have been living together as
husband and wife for five years and that they
have three children.
They are not married to each other.
[34] When the train
arrived at Princess Station it stopped and the Metro officials
conducted a stop and check i.e. checking out
all those persons inside
the train who were not in possession of valid train tickets. Those
who did not have tickets were ordered
off the train and once they had
paid a fine they were allowed back onto the train.
[35] The train
stopped for a long time at the station as a result the plaintiff
enquired from the Metro officer who instead of answering
him told him
to “voetsek” and to sit down. Then the police officer
entered the train, came to the plaintiff and asked
him what was wrong
with him. He was then punched in the face by the police officer and
with the assistance of the Metro officers
the plaintiff was pulled
and pushed off the train and when he resisted by holding onto a pole
in the middle of the coach they hit
him from behind and the police
officer held him by his testicles.
[36] The Metro
officers and the policeman succeeded in taking the plaintiff out of
the train to a room next to the platform. It
was at about 12h30 when
this happened and at about 17h00 she saw the plaintiff at Roodepoort
Police Station. His eye was swollen
and his clothes and shoes were
full of blood.
[37] On the 1st
November 2012 she was at the Magistrate’s Court in Roodepoort
when the plaintiff was released without having
appeared in court. The
plaintiff was weak and powerless.
[38] During
cross-examination she denied that the plaintiff was rude and abusive
to the police. It was put to the witness that
the Metro officers
whilst conducting the stop and check came across a person who had no
ticked. They then called W/O Hobjane to
attend to that man who had
no ticket and when W/O Hobjane entered the coach the plaintiff said
to Hobjane why had he stopped the
train and then said that the police
are stupid. The witness denied that the plaintiff said that to the
police officer.
[39] The witness was
questioned repeatedly on one and the same issue and she stuck to her
version that the police officer struck
the plaintiff on the face with
a fist. Further cross-examination elicited no material contradiction
nor did it destroy the credibility
of this witness. She described
the plaintiff as a soft spoken person who does not even speak when he
is stressed. She added further
that the plaintiff was not angry or
seemed agitated when he made enquiries about the train. He was just
like her concerned as
both had to go to work later that day. She had
left a three months old baby at home with the neighbour.
[40] She confirmed
that the police officer who hit the plaintiff was a big gigantic man
and that the plaintiff is smaller and that
when he hit him with a
fist it was a powerful and forceful strike.
[41] The witness
like the previous one were adamant that the plaintiff did not fall as
he was being taken out of the train. He
could not have fallen
because the police officers were holding him.
[42] The plaintiff’s
case was closed and W/O Freddie Hobjane as well as Constable Gezani
Michael Shibambo testified for the
first defendant.
[43] W/O Freddie
Hobjane (Hobjane) testified that he is an officer in the South
African Police Services and is presently stationed
at Protea Glen
Police Station. During 2012 he was stationed at Krugersdorp South
African Police where his duties were that of
crime prevention. As
part of which the police assisted Metrorail and Vhintsiri Security
Services in conducting stop and search
as well as to look out for
illegal weapons and drugs inside the trains. He at that time
patrolled the trains between Randfontein
and Langlaagte.
[44] He explained
that when they conducted a stop and check the duties are divided as
follows:
- The Metrorail
Customer Service people do the actual checking of valid and invalid
tickets.
- The South African
Police Services search suspect passengers for knifes, drugs and
illegal arms.
- Vhintsiri Security
provides backup support and assistance to the police and to the
Metrorail Customer Services Unit.
[45] When there are
any contraventions of the law the power to effect arrest lies only
with the South African Police Services.
[46] On the 30th
October 2012 he was on duty when he was called by one of the Customer
Services persons to assist as there was a
problem with one person who
did not have a ticket. The plaintiff then started interfering.
Hobjane said that the plaintiff said
that what they were doing was
unlawful and that they were stupid and do not know how to perform
their duties. He questioned how
could they as police allow that a
train stop for such a long time. When the plaintiff said this he was
with Constable Shibambo.
When the report was made to him about the
person with no ticket it was with the intention that they should
arrest that person.
When the plaintiff uttered the words as described
above he Hobjane told him that he will arrest him for interfering in
police duties.
[47] The plaintiff
spoke loud and was making a show off showing the other passengers
that he is clever. He then approached the
plaintiff and told him
that he can be arrested for interfering with police duties and
thereafter he arrested him.
[48] The witness did
not explain explicitly how the plaintiff interfered with his duties
except to say that the plaintiff said they
are stupid and how could
they allow the train to stop for such a long time. When he effected
an arrest he held the plaintiff by
his arm and on his belt and then
pulled him. The plaintiff resisted and wanted to fight. Constable
Shibambo assisted him by holding
the plaintiff on the other arm
whilst he held him on the one arm as well as by his belt.
[49] He testified
that they told him the reason for arresting with was because he was
interfering with police duties. When he and
Shibambo were holding the
plaintiff and taking him out the plaintiff was resisting and
struggling and when they reached the door
of the train the plaintiff
slipped and fell off the train onto the platform. The plaintiff
slipped because the platform is some
20 to 30 cm below the step of
the train i.e. that is not even with the platform. When he slipped
and fell he and Shibambo were
still holding him but let him loose as
he tripped.
[50] The plaintiff
fell on his own face down and landed on his right eye. They picked
him up but did not see that he had injured
himself. He only noticed
the injury on the eye of the plaintiff when they arrived at
Roodepoort Police Station. The eye was swollen.
Prior to putting the
plaintiff inside the van he had handcuffed him. He denies that the
plaintiff was first locked in the room
or cell at the station. He
denies having assaulted the plaintiff in the train or at all and
insists that the plaintiff sustained
the injury on his eye when he
tripped and fell. When he handcuffed him it was with hands at the
back and denies that he tightened
the handcuffs.
[51] When he
effected the arrest on the plaintiff he acted in accordance with
section 40(1)(a)
of the
Criminal Procedure Act 51 of 1977
which
grants him the power to arrest any person who commits an offence in
his presence.
[52] Hobjane denies
that the plaintiff was ever kept in the cells at Princess Station he
also denies having deleted any material
from the plaintiff’s
celllphone. When they put the plaintiff inside the van he testified
that they had removed the handcuffs.
It was Constable Shibambo who
removed the handcuffs.
[53] He confirmed
that when they arrived at the Roodepoort Police Station they refused
to accept the plaintiff and said to him they
must first take the
plaintiff to hospital which is what he and Shibambo did. They were
now accompanied by Constable Mavhunda.
Constable Mavhunda was not at
the station when the arrest took place. He joined them at the
Roodepoort Police Station.
[54] When the nurse
at the Hospital enquired what had happened to the plaintiff he as
Hobjane told the nurse that the plaintiff
fell and injured himself.
[55] He testified
further that when he arrested the plaintiff he intended that
plaintiff should be charged and appear in court and
explain to the
court. The plaintiff was taken to court at 08h30 on the 1st November
2012 having been detained from the 30th October
2012 at 13h30.
[56] Before he
detained the plaintiff he read out to him and explained the notice of
rights in terms of section 35 of the Constitution.
[57] During
cross-examination he testified that people who are found not to be
having valid tickets are made to pay a fine they
are never arrested.
Customer Services imposes fines on them. In the event that there are
many people with no fines and are taken
off the train he does not
know where those people are kept whilst waiting to pay fines.
[58] The witness was
shown a photo of a building that appears on Bundle A being photo
number 9 and was asked what that building
was. He answered that he
does not know the building and has never seen it before. When he was
told that that building is at the
Princess Station he repeated that
he had never seen it and does not know what building that is.
[59] He denies
having locked up the plaintiff in that building and said that when he
arrests a person he takes him to the police
station.
[60] Hobjane
testified further that he signed his own arresting statement after he
came back from Hospital with the plaintiff.
Evidence was that they
only came back from Hospital after 16h00 and yet his statement
indicates that he signed it at 13h10. Hobjane
then said the times
are not correct because by that time the plaintiff had not been
detained but was still waiting to be taken
to Hospital.
[61] When it was put
to him that a distance of 5 km which is how far the Hospital is from
the police station will take him no more
than 35 minutes to drive
there he said he does not know and does not want to commit himself.
[62] Hobjane was
shown Exhibit A13 which is a copy of the face of the docket where the
prosecutor in declining to prosecute the
plaintiff made the following
note: “No prima facie case.” Hobjane replied that it
was the first time he had heard
that. It was explained to him that
the prosecutor reached a conclusion based on his Hobjane and
Shibambo’s statements that
no criminal act was committed by the
plaintiff. Hobjane once more replied glibly and said that is how he
saw the plaintiff’s
action against him. He says he reasonably
suspected that the plaintiff made himself guilty of interfering with
police duties. He
however agreed that as a police officer he has a
discretion to arrest and not to arrest and this depends on the
circumstances of
each event. He also agreed that in terms of the
Police Standing Orders arrest should be resorted to as a last resort.
[63] Hobjane was
then asked why in this instance he did not use his discretion not to
effect an arrest. His answer was strange if
not plainly dishonest.
He responded by saying that he did not manage to do that and when he
was pressed to explain what he meant
by that he says it is because of
the manner in which the plaintiff behaved he felt he should not leave
him but arrest him.
[64] He conceded
that it was not common for a suspect to spend two nights in detention
before being taken to court.
[65] The court put a
few questions to the witness Hobjane and some of his answers were
rather shocking. For instance he says that
when the plaintiff
slipped and fell they were still at the door of the train and had not
as yet stepped on the platform. When he
fell they did not fall with
him despite the fact that they held him by both hands that is he and
Shibambo jumped after the plaintiff
had fallen. He says that the
plaintiff was not trying to run away.
[66] Constable
Gezani Michael Shibambo told the court that he and Hobjane were
inside the train when they were called by the Metro
officials to
assist about a person who did not have a train ticket. The plaintiff
who was seated not far from that other person
spoke loud in Zulu and
said the police are stupid why did they allow the train to stop for
such a long time. He testified that
because of those words W/O
Hobjane decided to arrest the plaintiff. They grabbed hold of the
plaintiff and whilst walking him out
of the train the plaintiff fell
onto the platform. He denies that W/O Hobjane assaulted the
plaintiff.
EVALUATION OF THE
EVIDENCE AND ARGUMENTS RAISED
[67] The defendant
bears the onus to prove that when W/O Hobjane arrested the plaintiff
it was because the plaintiff had committed
an offence in the presence
of Hobjane namely interfering with police in the execution of their
duties.
[68] The defendant
pleaded in paragraph 8.4.1 of its amended plea that in terms of
section 40(1)(a) of Act 51 of 1977 the plaintiff
attempted to commit
an offence and/or was committing an offence of “interfering
with police duties” in front of and
in the presence of the
police officer on the 30th October 2012.
[69]
Section
40(1)(a)
of the
Criminal Procedure Act provides
that a peace officer
may without warrant arrest any person who commits or attempts to
commit any offence in his presence. The
test in this instance is not
whether the defendant had a reasonable suspicion but is a factual
one. The defendant must prove on
a balance of probabilities that the
plaintiff had interfered with the police in the execution of their
duties and this must have
happened in their presence.
[70] This Court is
faced with two dramatically opposed versions of what happened that
led to the arrest and injury of the plaintiff.
The plaintiff’s
version is that W/O Hobjane confronted him when he was asking about
the delay of the train. He was then assaulted
and taken out of a
train and later locked in a cell at the Roodepoort Police Station.
The police officers say that the plaintiff
called them “stupid”
when they were attending to a case of a passenger who had no valid
train ticket and as a result
of that utterance Hobjane decided to
arrest the plaintiff for interfering in police duties and when the
plaintiff was getting off
the train he fell off the train injuring
his face.
[71] Only one of
these versions is true and in deciding which one is true it is
incumbent on the court to look into the credibility
of the factual
witnesses, their reliability and the probabilities.
[72] Both W/O
Bobjane and Constable Samuel Shibambo deposed to affidavits about the
events that led to the plaintiff’s arrest.
In his affidavit
Shibambo does not say what the plaintiff said. All that he says is
the following:
“At about
12h30 we were at Princess Station at Roodepoort Area performing our
normal duties stop and search when an African
male in the name of
Mzolisi Ndizana interfered our duties by words towards us. Then we
arrested the suspect.”
W/O Freddie
Bobjane’s affidavit reads as follows:
“On 2012-10-30
at about 12h30 I was on duty performing my official duties crime
prevention under railway. I was at Princess
Station doing stop and
check duties when the black African by the name of Mzolisi Ndizana
interfering when he started to used words
towards us and saying that
why we stopping a train so long and further saying that you police
stupid.”
[73] I find it
strange that in his affidavit Shibambo does not say exactly what the
plaintiff did or said. His affidavit is short
and does not explain
the crucial reason why the plaintiff was arrested. This lack of
detail and clarity in his affidavit corroborates
the plaintiff and
his witness’s version that Shibambo was never at any stage
inside the train it was only W/O Hobjane.
[74] During
cross-examination it was put to the plaintiff was Hobjane would
testify that when he was called to assist about a passenger
who had
no valid ticket the plaintiff said the following to Hobjane:
“Why has the
train stopped? Why is that person being searched you are stupid.”
[75] In his
evidence-in-chief in describing the incident W/O Hobjane testified
that the plaintiff started interfering by telling
them that what they
were doing was unlawful and that they were stupid and do not know how
to perform their duties and how can they
allow a train to stop for
such a long period.
[76] It is evident
that W/O Hobjane has given different versions as to exactly what the
plaintiff said or did. In his evidence
he never said that the
plaintiff questioned him as to why they were searching that person
presumably the passenger that had no
ticket. This aspect is also not
mentioned in his affidavit. In my view W/O Hobjane’s version
is a concocted version which
is not corroborated by Shibambo. There
was no attempt to call the Metrorail official who was present to
corroborate his version.
This was not done because he Hobjane knows
that his version will not be supported by the witnesses.
[77] The police
dispossessed the plaintiff of his cellphone in order to delete vital
evidence. The taking of the photos further
angered the police and
they became determined to delete whatever unlawful activities they
were doing at the Princess Station.
[78] The reality of
the facts placed before me is that the plaintiff did not commit any
offence falling within the purview of
section 40
of the
Criminal
Procedure Act. It
is therefore not surprising that when the State
Prosecutor read the affidavits of W/O Hobjane and Shibambo he did not
hesitate
to come to a conclusion that no prima facie case has been
made out and declined to prosecute.
[79] W/O Hobjane was
not only dishonest but contradicted the evidence of Shibambo.
Hobjane when being shown a photo of the holding
cell at Princess
Station vehemently denied that such a building exists at that
station. He was even prepared that if the court
would adjourn to
that place there is no such a building. The evidence of Shibambo was
that the building is there. I find the denial
by Hobjane to be very
disingenuous. The only inference to be drawn is that he wants to
distance himself from the version that
the Plaintiff was held in that
building immediately after being assaulted by the police officer.
[80] The version of
the police officers as to how the plaintiff sustained the injury is
replete with improbabilities. It must be
remembered that the
plaintiff according to the police was now under their arrest. His
safety and well-being was now in the hands
of the police and yet when
he reaches the steps on the train they let him go off to fall on his
face. The question is if two police
officials held him on his side by
his hand including his belt how did he manage to fall by himself.
Their version would perhaps
have made sense if all three of them had
tripped and fallen.
[81] Secondly, it is
strange that only the plaintiff tripped and fell no other passenger
tripped and fell on the steps on that day.
Otherwise there would be
several claims against the Metro trains by passengers falling off as
they got off or onto the train.
[82] The injuries
sustained by the plaintiff are not compatible with an injury caused
by a fall. Even though no medical evidence
was presented a look at
the photos of the plaintiff taken shortly after he sustained the
injury explains favourable to an injury
sustained by a blunt force
applied to the eye and nose. If the plaintiff fell on his face on
hard ground like the platform at train
station his face would have
been bruised not one eye only.
[83] The plaintiff
and his witnesses on the one made a very good impression on me when
they testified. The plaintiff himself did
not contradict himself in
any material respect. He stuck to his version.
[84]
Section
40(1)(a)
requires the existence of a particular factual situation
before the peace officer’s power to arrest without a warrant
can
come into existence. If the circumstances do not exist no lawful
arrest can take place. Secondly, even though the circumstances
may
exist it was held in Minister of Safety and Security v Sekhoto and
Another
2001 (1) SACR 315
(SCA) at paragraph 28 thereof that the
police officer has a discretion whether to arrest or not to arrest.
It was held that a police
officer is not obliged to arrest.
[85] It is not clear
whether the plaintiff was arrested because he asked why the train had
stopped for so long or whether he was
arrested for saying the police
are stupid or whether he was arrested because he said the police do
not know how to do their work.
There is simply no evidence that the
plaintiff interfered or obstructed the police from searching anybody
inside or outside the
train. As such the plaintiff’s arrest,
assault and detention were wrongful and unlawful.
[86] The arguments
advanced in support of the defendant’s contentions are so
far-fetched and legally untenable that they require
no further
consideration. I carefully examined the various aspects of the
defendant’s evidence and have come to the conclusion
that the
gross weight of improbabilities in the defendant’s version are
sufficient to leave me with no doubt that their version
is false and
was fabricated.
QUANTUM
(i) UNLAWFUL
ARREST AND DETENTION
[87] I turn now to
determine the quantum of damages. In Minister of Safety and Security
v M Tyulu
2009 (5) SA 85
(SCA) Bosielo JA said the following at
paragraph [26] of his judgment:
“In the
assessment of damages for unlawful arrest and detention it is
important to bear in mind that the primary purpose is
not to enrich
the aggrieved party but to offer him or her some much needed solatium
for his or her injured feelings. It is therefore
crucial that
serious attempts be made to ensure that the damages awarded are
commensurate with the injury inflicted. However, our
courts should be
astute to ensure that the awards they make for such infractions
reflect the importance of the right to personal
liberty and the
seriousness with which any arbitrary deprivation of personal liberty
is viewed in our law. I readily concede that
it is impossible to
determine an award of damages for this kind of injuria with any kind
of mathematical accuracy. Although it
is always helpful to have
regard to awards made in previous cases to serve as a guide such
approach if slavishly followed can prove
to be treacherous. The
correct approach is to have regard to all the facts of the particular
case and to determine the quantum
on such facts.”
[88] In this matter
I was referred to a number of cases dealing with the amounts awarded
for unlawful arrest and detention amongst
them are: Minister of
Safety and Security v Seymour
2006 (6) SA 320
(SCA). In that matter
the plaintiff a 63 year old man had been unlawfully arrested and
detained for a period of 5 days was awarded
R90 000,00. The court
took into account that he had free access to his family and doctor
during his detention; that he had suffered
no degradation beyond that
inherent in being arrested and detained; that after the first 24
hours he had spent the remainder of
his detention in hospital bed,
that although the experience had been traumatic and distressing it
warranted no further medical
attention after his release.
[89] In the
unreported matter of Phasha Thabo Sydney v Minister of Police Case
Number 25524/2011 South Gauteng High Court a judgment
by Epstein AJ
delivered on 21st November 2012 the plaintiff who was 40 years old
and a father of three children employed as a Debt
Collector in the
office the State Attorneys, Johannesburg was awarded R80 000,00 for
being detained for 9 hours. He had been arrested
in full view of
people who knew him at a shopping centre in Soweto and handcuffed. He
was walked from the shop to the awaiting
police van through the
parking lot much to the embarrassment of people who knew him well.
The court found that he had suffered
great indignity and humiliation
of being arrested, detained and placed in a cell which was in a
filthy condition.
[90] In Masisi v
Minister of Security and Security
2011 (2) SACR 262
(GNP) at page 267
paragraph [18] Makgoka J held as follows:
“The right to
liberty is an individual’s most cherished right, and one of the
fundamental values giving inspiration
to an ethos premised on
freedom, dignity, honour and security. Its unlawful invasion
therefore strikes at the very fundamental
of such ethos. Those with
authority to curtail that right must do so with the greatest of
circumspection and sparingly. In Solomon
v Visser and another
1972
(2) SA 327
(C) at 345C-E, it was remarked that where members of the
police transgress in that regard the victim of abuse is entitled to
be
compensated in full measure for any humiliation and indignity
which result. To this I add that where an arrest is malicious the
plaintiff is entitled to a higher amount of damages than would be
awarded absent malice.”
[91] In this matter
the plaintiff is 30 years old. He lives with the mother of his three
children the youngest of whom is three
months old at the time of this
incident. He is employed as a security officer. It is common cause
that he was in custody for two
days. There was simply no legal basis
for his arrest. He had committed no offence. His only mistake was
to ask why the train
was being delayed and instead of getting an
explanation to which he was entitled he was told that he was too
forward and thinks
he is clever. He was assaulted and manhandled not
only in the presence of his wife but in full view of passengers in
the train.
He was taken off the train and shoved into a room of
holding cells at the station where he spent one and a half hours. He
was
later taken out, handcuffed and bundled into a police van which
drove at high speed causing him to fall and be tossed about at the
back of the police van. The handcuffs had been tightened.
[92] In the cells at
Roodepoort there were eight of them in a small cell which had no
sufficient space for all of them. He slept
on a dirty smelly sponge
with two smelly blankets. There were no washing facilities. The
plaintiff’s human rights were
violated. The arresting officer
lied about the actual reason for the plaintiff’s arrest. I have
reason to disbelieve that
the police actions were actuated by an
improper motive and malice.
[93] Having taken
into account the facts of this case as well as past awards in recent
cases I am of the view that the amount claimed
by the plaintiff in
his particulars of claim is not only modest but is fair and
reasonable. I accordingly award the plaintiff
the sum of R180 000,00
for unlawful arrest and detention.
ASSAULT
[94] Under this
heading the plaintiff claims compensation in the sum of R100 000,00.
[95] The plaintiff
was assaulted in full view of passengers and his wife. He was held
by his testicles when he resisted being taken
out of the train. He
had the right to resist that unlawful act. His wife was clearly
embarrassed in court in having to explain
this aspect to the court
when giving evidence.
[96] In the matter
of Capke v Minister of Police and Others 1979 C&B (E) a 54 year
old married woman received an award of R1
000,00 (today worth R23
560,00) for shock, pain and suffering after she was manhandled,
struck, throttled by two policemen, dragged
to the police station and
detained there. She had suffered a considerable amount of pain as a
result of the assault for two weeks.
[97] In Van der
Westhuizen v Minister van Polisie en Andere 1979 (3) C&B 33 (C) a
man was awarded R500,00 (today worth R11 780,00)
when he was
assaulted by a policeman in the face. He suffered a black eye and
injury to the thigh caused by a kick, facial scrapes
and cuts, a
smashed tooth and cut lip.
[98] In the present
matter the plaintiff was subjected to excruciating pain when W/O
Hobjane held him by his testicles. The injuries
to his eye required
him to be given analgesics and pain killers at the hospital.
[99] Having regard
to the nature of the assault, the extent of the injuries the pain
suffered as well as the contumelia suffered
by the plaintiff I hold
the view that an amount of R80 000,00 is fair and reasonable as
compensation to the plaintiff under this
heading.
[100] I accordingly
make the following order:
(a) The first
defendant is ordered to pay to the plaintiff:
(i) The sum of R260
000,00 (Two Hundred and Sixty Thousand Rand) plus interest thereon at
the rate of 9% per annum from date of
judgment to date of payment.
(b) Costs of suit on
a party and party scale including interpreter’s fees.
(c) Interest on the
taxed costs at the rate of 9% from date of taxation to date of
payment.
DATED at
JOHANNESBURG on this the 21st day of NOVEMBER 2014.
M A MAKUME
JUDGE OF THE HIGH
COURT OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
DATES OF
HEARING 5-11 SEPTEMBER 2014
DATE OF
JUDGMENT 21st NOVEMBER 2014
COUNSEL FOR THE
PLAINTIFF ADV P R JORDI
INSTRUCTED
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UNIVERSITY OF
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Ndizana/PJ/om
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