About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2014
>>
[2014] ZAGPJHC 387
|

|

Thusi and Another v Minister of Safety And Security (1442713) [2014] ZAGPJHC 387 (12 December 2014)

REPUBLIC
OF SOUTH AFRICA
GAUTENG
HIGH COURT
Johannesburg
Local Division
CASE NO: 1442713
DATE: 12 DECEMBER 2014
In the matter
between:
Thusi Nkanyezi
Kingslakey
..................................................
First
Plaintiff
Khumalo
Nhlanhla
Elvis
...................................................
Second
Plaintiff
And
The Minister of
Safety And
Security
..........................................
Defendant
JUDGMENT
Introduction
1.
The
two plaintiffs allege that they were unlawfully arrested by members
of the South African Police Services (the SAPS/ the police)
acting
within the course and scope of their duties and were detained for
eight days. They also claim that they were unlawfully
assaulted by
unknown members of the SAPS. They seek compensation from the
defendant for the unlawful conduct they were forced to
endure at the
hands of the members of SAPS. The defendant admits that the
plaintiffs were arrested and detained for that period
but denied that
their arrest and detention were unlawful, and further denied that
they were assaulted by members of the SAPS whether
during or after
their detention.
2.
The
parties agree that the following is common cause:
2.1.
Both
plaintiffs were employed with a company operating under the name and
style of SBV and which operates in the Security Industry.
They were
both involved in collecting, transporting and handing over large
amounts of cash on a daily basis. They were both part
of a First
National Bank (FNB) cash-in-transit armed crew of four. They had been
employed for a period in excess of one year when
the incident that
forms the subject of this case occurred.
2.2.
On
Monday 19 December 2011 the plaintiffs reported for work at 06h30.
Upon their arrival, the first plaintiff’s manager informed
him
that they would not be working on that day as money transported by
them on 12 and 13 December 2011 had been found to be short,
with the
alleged shortage amounting to R3m.
2.3.
The
entire FNB cash-in-transit crew of four were informed that they were
going to be subjected to polygraph tests. They were taken
to the head
office of their employer, the SBV, where they spent the day being
subjected to polygraph tests.
2.4.
Thereafter,
at or about 22h00, they were all taken to the Midrand Police Station
where three of them, including the two plaintiffs,
were arrested. The
plaintiffs were detained in the cells at Midrand until Wednesday 21
December 2011, (one and a half days later)
when they appeared in the
Midrand Magistrates Court on a charge of theft of R3m. Their case was
remanded to 28 December 2011. They
were not granted bail and were
placed in custody at the Johannesburg Central Prison until their next
appearance, on 28 December
2011.
2.5.
On
28 December 2011 they re-appeared in the Midrand Magistrates Court on
a charge of theft of R3m. They were released on bail of
R10 000.00
Their case was transferred to the Wynberg Regional Court (Regional
Court) and was postponed to 20 February 2012. On
20 February 2012
they appeared in the Regional Court when their matter was called.
They were not asked to plead to the charges
as the prosecution
elected to withdraw the charges against them.
3.
Apart
from claiming that their arrest was unlawful, the plaintiffs allege
that on 20 December 2011 they were unlawfully assaulted
by members of
the SAPS.
The viva voce evidence
4.
Each
plaintiff testified in support of his own case, while the defendant
called two witnesses, a Detective Sergeant Edward Sehlomola
Dikgale
(Det Sgt Dikgale) who was the arresting officer, and Sergeant Aubrey
Makgoshing (Sgt Makgoshing).
5.
The
first plaintiff’s testimony was that after being subjected to
the polygraph test by his employer, he was told that he
had failed
the test and that he was going to be arrested for the theft of the
R3m that was in the care of the crew of which he
was member. He
outlined the process involved in the receipt and delivery of cash by
himself and his fellow crew members. The process
he outlined
demonstrates that great care is taken to ensure that employees such
as himself have almost no opportunity to pilfer
any money while
carrying out their duties of collecting it from one place and
delivering it to another. Money is kept in bags and
boxes. The bags
are carefully checked for holes, and the seals of the boxes are
checked to see if any of them were broken or had
been tampered with.
Great care is also taken to ensure that they are not victims of a
heist while carrying out their duties. Upon
the completion of their
shift they hand over all the money in their care, which is carefully
checked by others for any discrepancies
between the amounts received
and the amounts delivered, before they are allowed to leave the
premises. The procedure is very strict,
carefully monitored and
carefully executed. The margin for error is zero. As a result, they
were surprised to learn on 19 December
2011 that their delivery of 12
and 13 December 2011 was short in the amount of R3m. According to
him, if there was a shortage in
the amounts delivered by them on
those two days it should have been discovered on those days and not a
week later on 19 December
2011.
6.
Notwithstanding
the implementation of this very strict procedure he and his
colleagues stood accused on 19 December 2011 for committing
thefts on
12 and 13 December totalling R3m.  The accusations were made by
their employer. He was told that the accusations
arose solely from
the fact that he had failed a polygraph test, as his employer had no
evidence that he, alone or together with
any of the other members of
the crew, had unlawfully taken the money. He was subjected to more
than one polygraph test that day.
He had also not eaten for the whole
day. In fact his last meal was the supper he had on Sunday 18
December 2011.
7.
After
failing the polygraph test, he and his three colleagues were taken to
Midrand Police Station where they were handed over to
the police who
only arrested three of them. The fourth colleague was not arrested as
he had passed the polygraph test. Their belts
and shoe laces were
removed and he was separated from his colleagues and locked up in a
cell. The cell was dirty. He was given
a filthy blanket and a sponge
to use for sleeping purposes. He was not given anything to eat. At
02h00 he was taken from the cell
by three policemen, who claimed to
belong to the unit popularly known as the Hawks, who said that they
had come to question him
about the alleged theft of R3m. He was taken
out of the police station to his home, where they conducted a search
of his house.
All this time his hands were so tightly cuffed behind
his back that his wrists eventually bruised. While two of the
policemen searched
his house the third one punched him several times
in the stomach asking him to reveal where he had hidden the R3m that
he was alleged
to have stolen. Each time he said he knew nothing of
the R3m he was beaten by all three policemen. The beating was severe
and was
concentrated on his abdomen and on the sides of his body.
After completing the search, which was in vain, they drove off to a
garage
where the policemen bought some ice cubes. They drove to an
isolated site, stopped the vehicle, put the ice cubes in the front of

his underpants, waited a few minutes for the ice to melt and then
released an electric charge on to his genitals causing him to
suffer
a considerable pain. He was repeatedly asked where he had hidden the
R3m that he allegedly stole from his employer. Each
time he answered
that he did not steal any mone, and after each answer the electric
charge was released onto his genitals. All
this time he was very
fearful of his fate. After that they stopped assaulting him and drove
him back to the Midrand Police Station
where they had him detained in
the cells. He fell asleep. He was awoken later that morning and given
breakfast. At about 15h00
hours that day he was taken out of the cell
to a private room at the police station where three policemen were
waiting. They cuffed
his hands behind his back, took a black plastic
bag, put a little bit of water inside it and placed it over his head.
They forced
him to lie on his stomach. One of the policemen sat on
his back and tightened the plastic bag over his head. He was informed
that
if he could not breathe he should kick the floor to inform them
that he was having difficulty breathing. The tightening of the bag

around his head was suffocating. Each time he kicked the floor the
policeman would remove the bag altogether, thus allowing him
to
breathe. He would then be kicked on the side of his body while at the
same time being asked where he hid the money. He  always
replied
that he had not taken it, and immediately thereafter the policeman
sitting on his back resumed the process of placing the
bag over his
head and suffocating him.  The process continued for a while.
He was in great pain and this time, too,
he feared for his life. The
pain and the fear caused him to involuntarily urinate inside his
pants. They stopped and drove him
to his house to search it once
again. One of the policemen told the others that the house had
already been searched, which caused
them to abort their search and
return him to the Midrand Police Station where he was, once again,
locked in the cell. He was in
great pain. He was not afforded any
medical treatment despite the fact that his pain was visible to all,
nor was he given any painkillers.
However, he did concede that he did
not ask for any medication. The next morning he, the second plaintiff
and the other arrested
colleague appeared on a charge of theft at the
Midrand Magistrates Court. He did not raise the fact that he was
assaulted with
either his legal representative or with the
Magistrate. The rest of his testimony is captured in the common cause
facts relayed above in paragraphs 2.4 and 2.5. He also
conceded that
on the day of his arrest he was asked by the arresting police officer
about the missing R3m, and he said that everything
he had to say
would be said in court. In short, he took refuge in his right to
silence.
8.
Upon
being released from custody on 28 December 2011 he consulted a doctor
who booked him off work because he was apparently suffering
from
“
tension
headache
s”.
However, after the case was withdrawn he sought legal advice from the
Wits Law Clinic about his assaults. About a year
after his assaults
the Wits Law Clinic had him consult the relevant medical experts.
They examined him and furnished reports about
his injuries and their
opinions about his claim to being assaulted.
9.
The
second plaintiff, too, testified. The only evidence additional to
that of the first plaintiff that he provided related to the
assault
he endured at the hands of members of the SAPS.  On 20 December
2011, at or about 10h00, he was taken out of the cell
to a private
room at the police station where he found three men who claimed to be
policemen that belonged to the unit commonly
known as the Hawks. They
told him that they were there to question him about the missing R3m.
He said he did not know anything
about the missing R3m. They cuffed
his hands very tightly behind his back. He was asked to stand on his
knees. He obliged. One
of the policeman placed his knee on the second
plaintiff’s back while another put a wet plastic bag over his
(second plaintiff’s)
head. The policeman who was behind and who
had his knee on his (the second plaintiff’s) back began to
tighten the bag causing
him to suffocate. The other two policemen
held him by the shoulders so that he could not move any part of his
body while he was
suffocating. After a minute or so, they removed the
bag, released their grip on his shoulders and asked him to reveal
where he
had hidden the missing R3m. He said he knew nothing about
the missing money. They began punching him in his stomach and on his
sides. He fell onto his stomach. He was pulled back up and the
plastic bag was placed over his head again. At that point he
involuntarily
urinated on himself. He was then taken back to his
cell. His colleague who had been locked up in the same cell was
missing. He
fell asleep. Sometime later he was awoken and taken to
the same three policemen who had assaulted him. They cuffed his hands
tightly
behind his back and drove him to his home, where they
commenced searching for the missing R3m. The woman he was living
with, and
who is the mother of his children, was at home. The search
was in vain. They took him back to the Midrand Police Station and had

him locked up in the cell separate from both his colleagues. The
handcuffs were so tightly locked to his wrists that they caused

considerable pain at the time, and they left a permanent scar on each
of his wrists.
10.
The
next day he appeared, together with the first plaintiff and his other
colleague, at the Midrand Magistrates Court on a charge
of theft of
R3m. His parents had arranged a legal representative for him. There
was also another legal representative who offered
his services. He
was a bit confused about these legal representatives, but told one of
them that he was assaulted. The legal representative
told him that
when the trial commenced he should reveal that to the court and not
immediately. He was not allowed to speak in court
as his legal
representative addressed the court. The proceeding lasted a few
minutes only. The rest of his evidence concerning
the case was
identical to that of the first plaintiff. He still experiences
nightmares about his assault and has become extremely
fearful and
distrustful of all policemen. He has also lost his sexual appetite
since the assault. The assault has affected him
so badly that his
relationship with the mother of his children has ended.
11.
The
plaintiffs submitted reports from medical experts that they consulted
with in preparation for the case. The defendant did not
submit any
contrasting reports from medical experts operating in the same field
as those experts relied upon by the plaintiffs.
The defendant
indicated that it does not dispute the factual material in the
reports, nor does it wish to challenge the findings
or opinions of
these experts.
12.
The
first plaintiff submitted the reports of:
12.1.
Dr
Leon A Fine (Dr Fine), a psychiatrist. He examined the first
plaintiff nine months after his assault, on 22 October 2012, and

thereafter came to the conclusion that:
“
he
presents with features of
Post
Traumatic Stress Disorder
with
Depression
where
this is significantly affecting his ability to perform his normal
roles and activities of daily living with loss of enjoyment
of
amenities emotionally, sexually, socially and domestically.
He
requires
Psychiatric
treatment
,
consisting of the use of
Medication
and
of
Psychotherapy
and
extending over a perhaps 18 months, where the sum of R14, 000 for
medication and an additional amount of R16,000 for
Psychotherapy
and
follow-up sessions, would be sufficient for all present and future
Psychiatric treatment needs, and where given such optimal
therapy,
Psychiatric Prognosis would be anticipated to be good.
”
[1]
12.2.
Dr
G Perumal (Dr Perumal) is a Specialist Forensic Pathologist who
examined the first plaintiff on 9 October 2012. He could not
find any
observable evidence of the assaults on the first plaintiff except for
scars on the wrist and base of a thumb. He concluded
that the most
likely cause of the scars was the application of the cuffs on his
hands at the time of the assault. As for the lack
of observable
evidence regarding the application of an electric charge to the
genitals and the placing of a black bag over his
head, he concluded
that the description by the first plaintiff of the manner in which
these were carried out explained this lack
of observable evidence.
12.3.
Dr
Stan Tenzer (Dr Tenzer) is an Occupational Medical Practitioner. He
examined the first plaintiff on 29 July 2014. His report
did not take
the matter any further.
13.
The
second plaintiff, too, submitted the reports of:
13.1.
Dr
Fine who also examined the second plaintiff on 22 October 2012. He
came to the following conclusions:
“
he
presents with features of an incomplete
Post
Traumatic Stress Disorder
which
can be solely attributed to the effects of the Incident in question
and which has led to far reaching consequences, with loss
of
life-roles, the ability to perform normal activities of daily living
and loss of amenities physically, socially, domestically,
sexually
and occupationally but where deference is given to other opinions to
qualify loss of earnings and of occupational capacity
and
opportunity.
He
requires
Psychiatric
Treatment
to
help him adjust to what has been a highly traumatic incident with
far-reaching consequences, where such treatment would consist
of the
use of
Medication
and
of
Psychotherapy
of
the specific
Trauma
Counselling
type,
using a Cognitive-Behavioural approach and Desensitisation
Deconditioning techniques administered by a Psychiatrist trained
and
experienced in administering such specialized treatment.
Allowance
should be made for the sum of R13, 000 for Medication and an
additional amount of R15,000 for Psychotherapy and follow-up

sessions, where given such optimal treatment, Psychiatric prognosis
is good
”
13.2.
Dr
Perumal also examined the second plaintiff on 9 October 2011. Here
too, he found no observable evidence of the second respondent
having
had a wet black plastic bag over his head, and he provided the same
explanation for this lack of observable evidence as
he did with that
of the first plaintiff, but goes further and says:
“
The
consequence of this type of assault which causes smothering results
in asphyxia. This was manifest as:
(1)
Urinary
incontinence from incontinent bladder sphincter.
(2)
Extreme
weakness and exhaustion.
”
He also found
“
The
position and nature of the deep scars on the left and right wrist is
entirely consistent with cutting of the metal cuff onto
the skin and
flesh as Mr Khumalo struggled against the assault.
”
13.3.
Dr
Tenzer examined him on 19 July 2014. In his case too, the report of
Dr Tenzer did not add anything to that of Drs Fine and Perumal.
14.
The
defendant presented the evidence of Det Sgt Dikgale and of Sgt
Makgoshing who was the investigating officer. His testimony focussed

on the investigation of the alleged crimes the plaintiffs were
accused of having committed. Det Sgt Dikgale was the arresting
officer. His testimony was confined to what happened in his presence
during the arrests, and to the reason as to why the arrest
and
detention was necessary.
15.
Det
Sgt Dikgale stated that on 19 December 2011 he was called by his
senior after 22h00 and instructed to go to Midrand Police Station
to
look into a charge being laid by some people about the theft of R3m.
He was informed that those persons had brought the suspects
with them
to the police station and were asking for them to be arrested. He got
to the police station at about 23h00. He found
a number of persons
waiting in the charge office. He was introduced to the persons who
laid the charge of theft. They told him
that they were from a company
called SBV, which specialises in transporting large amounts of cash
on a daily basis. They told him
that they are of the view that three
of their fellow employees had stolen R3m of the cash, and that those
employees were with them.
Having laid the charged against those
employees, they said they would like to hand the three employees over
to the police. He was
introduced to the three employees, which
included the two plaintiffs. The persons from SBV furnished him with
sworn affidavits
from the employees of SBV which indicated,
inter
alia
,
that the plaintiffs and their colleague were responsible for
unlawfully taking R3m of the cash that was in their care on 12 and
13
December 2011. He read the affidavits and questioned the persons
laying the charge. His questions focussed on the issue of how
it came
about that the plaintiffs had succeeded in unlawfully taking so much
cash. The explanation provided to him left him a bit
confused. He
then chose to individually interview the two plaintiffs and their
colleague about the allegation against them. Before
doing so, he
informed them of their right to silence as well as their right to
have a legal representative present during the interview.
Both
plaintiffs informed him that they elect to exercise their right to
silence, and that anything they want to say will only be
said in
court. He had no information about them. Evaluating the facts and
circumstances he found himself confronted with, he came
to the
conclusion that the plaintiffs and their colleague should be arrested
and detained until they could be brought before a
court to answer to
the case that would be made against them. He informed them that he
would be arresting and detaining them. They
said nothing to him.
After doing so, and after completing the necessary paperwork, he
left. He was adamant that had the plaintiffs
at least assisted him to
understand how they could have managed to steal such a large amount
of cash he may not have detained them,
but since they were unwilling
to engage with him he had no choice but to detain them and let the
legal process takes its course.
16.
It
was vigorously contended by the plaintiffs that he acted unreasonably
and should not have detained them. Instead he should have
merely
given them notice to appear in court and released them. I cannot
agree with this contention. He was in a difficult situation.
He had
persons who informed him that they were firmly of the view the
plaintiffs and their colleague had stolen a large sum of
money. He
had affidavits to back this claim up. He could not fathom how the
plaintiffs and their colleague could have done so and
so he sought
their assistance. They refused to assist him. They did not even
engage him to say that the allegations are false and
logically
untenable. He had no information about them. That he had to charge
them is beyond doubt. He could not be sure that they
would not
abscond once charged. The only route open to him in these
circumstances was to detain them and have them brought to a
court of
law within forty-eight hours, as the law allows. Failure on his part
to do this could result in justice being defeated.
That was a risk he
was not, correctly in my view, willing to take.  Finally, he
claimed he was acting in terms of s 40(1)(b)
of the Criminal
Procedure Act 51 of 1977 (the CPA).
17.
In
terms of this section a peace officer, which Det Sgt Dikgale is, may
arrest any person without a warrant if s/he “reasonably

suspects” that person of having committed an offence referred
to in schedule 1 (the offence the plaintiffs were accused of

committing was such an offence) of the CPA. In the light of the facts
and circumstances relayed here, there can be no doubt that
Det Sgt
Dikgale acted lawfully by arresting and detaining the plaintiffs.
18.
Accordingly,
the claim that they were unlawfully arrested has to be rejected.
19.
The
issue of them being unlawfully assaulted is independent of the issue
regarding their arrests. It is to this issue that I now
turn.
20.
The
defendant presented no evidence in rebuttal of the plaintiffs’
claim that they were assaulted. However the defendant contended
that
the plaintiffs were not credible witnesses, and, on that basis only,
their evidence regarding their assaults should be rejected.
In this
regard the defendant placed great emphasis on the fact that there
were some minor discrepancies in the evidence between
the two
plaintiffs, as well as between the evidence of the two plaintiffs and
that of Det Sgt Dikgale. These discrepancies related
to matters
completely unrelated to the alleged assaults. They related to matters
such as who actually effected the arrests, who
was in court on 21
December 2011 to represent them. These discrepancies in the evidence
of the two plaintiffs, and between the
evidence of the defendant and
that of each plaintiff, in my view, are not of such a magnitude as to
render the testimonies of the
two plaintiffs unreliable or
improbable. The defendant contended that the fact that the plaintiffs
did not report the assaults
to the police or the court at the first,
or even at the subsequent appearances, means that this court should
disbelieve them and
hold that the assaults did not take place. The
plaintiffs explained their failure to report the assaults by the fact
that they
were unaware of their right to do so, as well as the fact
that they were fearful of their lives at the time. These explanations

are reasonable. In any event just because they did not report the
assaults earlier does not mean they had manufactured their versions.

To reach such a conclusion would require a leap in logic and would
defy the basic rule of evidence, which is that there must be
a real
and substantive basis to disbelieve a witness’ testimony. There
is no such basis in this case. On the other hand,
the defendant’s
failure to produce any evidence to rebut what the plaintiffs
testified to is fatal to its case. This relates
not only to the
personal testimonies of the plaintiffs concerning their assault but
also to the reports of their medical experts.
Evaluating the evidence
as a whole leads to a single conclusion: the plaintiffs have
established that they were assaulted by members
of the SAPS on 20
December 2011.
21.
It
follows then that they are entitled to compensation for having to
endure this unlawful conduct.
22.
The
courts have, over the years, grappled with the issue of what would be
an appropriate compensation for a plaintiff who complains
of and
proves that s/he was unlawfully assaulted by members of the SAPS,
whose duty it is to protect individuals from assault and
not to be
perpetrators of such unacceptable conduct. The amount of damages a
plaintiff is entitled to has to be determined on a
case-specific
basis. In general though, the court must act according to equity and
good conscience (
ex
aequo et bono
);
its decision must be fair and just. It must consider the
circumstances of the assault, the nature thereof, the need to punish

the perpetrators, or their employers (who have the power to prevent
such unlawful conduct and who, hopefully will take steps to
deter
such conduct in the future). Of course, previously comparable awards
will, too, provide some guideline of what is fair and
just in the
circumstances.
[2]
23.
In
the present case, both plaintiffs were unlawfully assaulted. The
first plaintiff had an electric charge administered to his genitals,

but not so the second plaintiff. This has to be taken into account in
determining what would be regarded as fair compensation for
the harm
they suffered. They have both suffered severe trauma and to this date
still bear the pain of the horrible assaults they
were subjected to.
Their dignity was taken away from them and they are still in the
process of regaining it in full. They remain
fearful of the police,
which is something no person residing in our constitutional democracy
should have to bear. Bearing all this
mind, I conclude that would be
fair and just to award One Hundred Thousand Rands (R100 000.00) to
the first plaintiff and Eighty
Thousand Rands (R80 000.00) to the
second plaintiff.
Costs
24.
The
defendant agreed that should the plaintiffs succeed in their action
they are entitled to their costs. There was no suggestion
that these
costs should be taxed on the Magistrates Court scale.
The order
1
The
defendant is ordered to pay the:
1.1
first
plaintiff the sum of One Hundred Thousand Rands
(R100 000.00);
1.2
second
plaintiff the sum of Eighty Thousand Rands
(R80 000.00);
1.3
Plaintiffs’
costs of suit.
Vally
J
Gauteng
High Court, Johannesburg Local Division
Appearances:
For
the plaintiffs : Adv H C Johnstone
Instructed
by : Wits Law Clinic
For
the defendant : Adv L Tyatya
Instructed
by : State Attorney
Dates of hearing :
24, 26, 27 November 1, 2 December 2014
Date of
judgment : 12 December 2014
[1]
All
quotation in this judgment are verbatim and thus all emphases are in
the original.
[2]
In
this regard the court should take heed of the warning by Innes CJ in
Hulley
v Cox
1923
AD 234
at 236, who reminds that comparisons are always instructive
never decisive.