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2012
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[2012] ZAECPEHC 92
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Funde v Minister of Police (905/2010) [2012] ZAECPEHC 92 (11 December 2012)
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION – PORT
ELIZABETH)
CASE NO: 905/2010
DATE HEARD: 20,
21/11/2012
DATE DELIVERED:
11/12/2012
In the matter between
THOBELA JULIUS FUNDE
...........................................................................
PLAINTIFF
and
MINISTER OF POLICE
..............................................................................
DEFENDANT
JUDGMENT
________________________________________________________________
ROBERSON J:-
[1] This is an action for damages for
invasion of privacy and assault. The plaintiff alleged that during
the night of 7/8 April
2007, members of the South African Police
Service, acting in the course and scope of their employment with the
defendant, unlawfully
entered and searched his home, and assaulted
him in his home. The defendant pleaded that police officers had
received information
that the plaintiff was in possession of, and was
dealing in, dagga. They searched the plaintiff’s house with his
permission
and dagga was found. The defendant denied the assault and
pleaded that the plaintiff had resisted arrest and minimum force had
been used to bring him down on the ground in order to handcuff him.
[2] The plaintiff testified that at
about midnight that night (which was the start of the Easter weekend)
he was asleep in his bedroom
with his wife and child
1
.
He was awoken by a knock at the door. Because of the manner of the
knocking, he did not have time to dress. Wearing only underpants,
he
opened the door and saw about eight police officers, among them a
woman. They forced their way into the house. He asked them
what they
were looking for and they said they were looking for firearms. He
told them he did not use a firearm and did not even
have a knife.
They then asked if he used dagga and he told them he did because of
his religion (he is a Rastafarian) but that there
was no dagga in the
house at that time. He was then handcuffed behind his back and his
wife and child were told to go to another
room. When it was put to
him in cross-examination that he was handcuffed because he was
considered a flight risk, he said that
he had not been aggressive.
[3] One of the police officers said
that a person referred to as “Umthakathi Wezindaba” would
be called, and this person
entered. These words were interpreted as
meaning “witch of stories”. The plaintiff identified this
person in court
as Captain Matomane, who later testified on behalf of
the defendant. Matomane and another officer forced him to lie on his
back.
Matomane produced a plastic glove and put it over the
plaintiff’s head, with the result that he could not breathe. He
lost
consciousness and the glove was taken off and he was revived
with water. The process was repeated, and endured for half an hour
to
an hour. He thought he was going to die. He was also pressed down on
his shoulders, causing the handcuffs to tighten, and thereby
causing
pain to his wrists. He felt humiliated at being subjected to this
treatment in the presence of his family.
[4] After a while the police officers
brought in a parcel and said that they had found it in the yard. The
plaintiff asked Matomane
to remove the handcuffs and he did so. He
was given clothing to put on and was taken away in a white Venture
motor vehicle. On
the way to Kwa Dwezi police station they came
across a youth carrying gin. The police officers ordered the youth to
drink the gin,
then slapped him and accused him of drinking in front
of the police. They also came across a couple in a car and ordered
them to
go home. They found people drinking beer and broke the beer
bottles on the road.
[5] At Kwa Dwezi police station, the
parcel they said they had found in his yard was opened, and he saw it
contained a number of
plastic bags of dagga, known as bompies. Police
officers from Kwa Dwezi were then instructed to take him to Kwa
Zakhele police
station, where he was detained until the following
Tuesday. He was taken to court and released on warning. The case was
postponed
a number of times until the charge was withdrawn on 18
January 2008, because of the failure of the police to appear at
court.
[6] He reported the assault at Kwa
Dwezi police station and thereafter requested his attorney to pursue
a charge of assault on his
behalf.
[7] He denied that he had given the
police permission to enter and search his home. He denied that prior
to the arrival of the police
at his house he had sold dagga to an
informer and that dagga was found in his house. It was specifically
pleaded that the dagga
was found in the wall next to a wardrobe and
he said that he did not have a wardrobe in his bedroom.
[8] Captain Sakhele Matomane testified
that he has been a police officer for twenty-one years. The incident
involving the plaintiff
took place during the course of a police
operation known as Operation Tshisa. The operation had been ordered
at provincial level
as a result of the high crime rate in Port
Elizabeth. Matomane’s pocket book reflected that on 7 April
2007 he came off duty
at 11h00 and came back on duty at 22h30. He
described his activities before coming back on duty as “information
gathering”,
but did not record these activities in his pocket
book. Between 19h00 and 20h00 on the evening of 7 April 2007, he was
approached
by a youth of about eighteen or nineteen years, whom he
did not know, who informed him that dagga was being sold at Rasta’s
house in Kwa Dwezi. Matomane already had an informer in that area,
and this youth was recruited by him as an informer only on this
occasion, and he regarded him as an informal informer. He gave this
informer money to buy dagga from the house and the informer
returned
with a packet of dagga. He paid the informer R10.00 from his own
pocket because Operation Tshisa did not have a budget
for informers.
When questioned by the court with regard to the informer, he said
that they were looking for information in that
area and while
stationary (presumably in a vehicle) he called the informer, from
amongst people who were passing by. He first engaged
the informer in
a conversation about sport and then asked him if he knew where dagga
was sold in the area. He sent him to buy dagga
and waited for about
fifteen to twenty minutes before the informer came back with a dagga
cigarette.
[9] Matomane, Warrant Officer Sitinga,
and other officers, then planned an operation to take place at the
house. With regard to
obtaining a search warrant, he said if they had
delayed they may not have found dagga, and the Magistrate’s
offices, where
they can apply for a search warrant, were already
closed. He said that the general rule was that a search warrant
should be obtained,
but a search can be conducted without a warrant,
provided permission is requested.
[10] He could not recall how many
police officers went to the plaintiff’s house, but in
operations of this nature there are
sometimes six or sometimes eight
officers involved. They arrived there at about 01h00 and found the
gate closed. They jumped over
the fence and surrounded the house.
Matomane knocked on the door, identified himself, and announced that
they had come to search.
The plaintiff opened the door and he and
Sitinga entered. They did not force their way in and the plaintiff
invited them in. He
did not tell the plaintiff that he was not
obliged to let them in because it may have slipped his mind to do so.
He did not explain
the plaintiff’s rights at this stage. He
could not remember what the plaintiff was wearing and could not
dispute that he
was only wearing underpants. He smelled dagga, and
told the plaintiff that they had come to search for dagga which he
was selling.
He asked the plaintiff’s permission to search and
the plaintiff gave permission. He also told the plaintiff that they
had
sent someone to buy dagga at the house and that he could not deny
that there was dagga there. At this the plaintiff smiled and took
out
several bags of dagga from a place between the wall and ceiling board
material, which covered the wall. Matomane suspected
that there might
be more dagga there. He handcuffed the plaintiff in order to secure
his arrest and to prevent his escape. He did
not remember that the
plaintiff resisted arrest. The plaintiff was looking around as if he
intended to escape. Matomane demonstrated
the plaintiff’s
movements by turning his head from side to side. At this stage
Sitinga’s duties were to keep a lookout
and cover him
(Matomane) while he was searching, because he could not see what was
going on behind him. He found further bags of
dagga in the same place
in the wall, making a total of sixty-four bags altogether. He then
informed the plaintiff that he was arresting
him for dealing in or
possession of dagga. The whole operation in the house took about
twenty minutes.
[11] He denied assaulting the
plaintiff as alleged. He heard about the name Umthakathi Wezindaba
for the first time at trial. To
him these words mean “someone
who is bringing beautiful things to people” and not someone to
be feared.
[12] The plaintiff was thereafter
taken to Kwa Dwezi police station. On the way, Matomane threw away
the dagga which had been bought
by the informer. When it was pointed
out to him that dagga is an illegal substance and someone might have
picked the cigarette
up and smoked it, he said he had opened the
cigarette and scattered its contents. He threw this dagga away
because by then they
had the dagga from the plaintiff’s house.
[13] He was shown extracts from the
occurrence book and the cell register of Kwa Zakhele police station,
which reflected that the
plaintiff’s time of arrest was 02h30
on 8 April 2007, and the time of detention was 03h30. He explained
this discrepancy
by saying he had merely estimated the times he had
mentioned, and that time had also been spent opening a docket.
[14] He agreed that he omitted to
mention the following facts in his statement in the police docket:
the information received from
the informer; that the plaintiff
produced dagga; and that he found more dagga in the wall. He
explained these omissions by saying
that he had said the plaintiff
voluntarily gave them dagga and that he would explain in court what
happened thereafter.
[15] He was unable to explain why the
charge against the plaintiff was withdrawn. He received a subpoena
and went to court at New
Brighton. The case was postponed in his
presence and he was told he would be subpoenaed again.
[16] During cross-examination he
agreed that there had been another action against the defendant
involving an allegation of assault
committed by him on 13 April 2007,
using the same methods. The case was settled. He said that he had not
been on duty at the time
he was alleged to have committed the
assault. His pocket book, however, did not reflect that he had gone
off duty. His explanation
for the omission was that perhaps he had
forgotten to make the entry because he was tired.
[17] Warrant Officer Sitinga
testified. He has been a police officer for twenty years and also
participated in Operation Tshisa.
On 7 April 2007 his shift began at
19h00 when parade was held at the base. Matomane also attended the
parade. He met Matomane later
at about 01h00 at their camp and
Matomane told him about the information he had received concerning
dagga at Kwa Dwezi. He and
Matomane and other officers, he estimated
there were less than eight of them altogether, proceeded to the house
and found the gate
closed. They climbed over the fence and he and
Matomane, who comprised the “penetration team”, knocked
on the door,
while the others surrounded the house. Matomane
announced that they were the police and the door was opened by the
plaintiff. The
plaintiff did not deny entry and Sitinga and Matomane
entered. They did so as police officers, because Matomane had
introduced
them as such. Sitinga could not remember how the plaintiff
was dressed because he was following Matomane at the time and was
looking
around.
[18] Matomane asked the plaintiff for
permission to search and the plaintiff agreed. Matomane did not ask
the plaintiff about a
firearm and told him he was looking for dagga.
The plaintiff hesitated and Matomane told him that he had sent a
youth to buy dagga
there. The plaintiff smiled and was reluctant to
go to the place where the dagga was. He then produced dagga from
between the wall
and the ceiling board. Matomane was not satisfied
and thought there might be more dagga. He handcuffed the plaintiff
because he
was leaving him alone with Sitinga, and because he wanted
to secure the arrest. The plaintiff did not resist arrest but was
looking
around as though he wanted to escape. He was not made to lie
down, and was standing while handcuffed. Sitinga was guarding
Matomane
as well as ensuring that the plaintiff did not escape. It
was necessary to guard Matomane because he was going to bend down,
and
the plaintiff might have kicked him. Matomane found more dagga in
the wall.
[19] Matomane informed the plaintiff
he was arresting him and explained his rights. Later Sitinga said
that Matomane explained the
plaintiff’s rights when he was
about to handcuff him. The plaintiff was not tortured. Sitinga denied
that he had said he
was going to call Umthakathi Wezindaba. The
meaning he ascribes to these words is an invisible witchdoctor who
does wrong.
[20] According to Sitinga they were at
the plaintiff’s home for half to three quarters of an hour.
When referred to the entries
in the occurrence book and cell
register, he said that it was possible that their time of arrival at
the charge office was 02h30,
but he also said that this time was
wrong.
[21] The plaintiff was taken to Kwa
Dwezi police station where a case was opened and the dagga was
entered into the SAP 13 register.
At this stage the plaintiff was
fully dressed. Sitinga did not see Matomane throw a dagga cigarette
away on the way to Kwa Dwezi,
although Matomane told him that he had
a dagga cigarette. Sitinga said that dagga could be thrown away if it
was a small quantity.
[22] The plaintiff was charged with
dealing in, or possession of dagga. Sitinga did not mention in his
statement for the police
docket that the plaintiff had produced dagga
from the wall, that Matomane had found more dagga, and that the
plaintiff had been
handcuffed. He did not receive a subpoena to
testify at the criminal trial.
[23] With regard to the allegation in
the defendant’s plea that the plaintiff had resisted arrest and
was made to lie down
in order to handcuff him, Sitinga said that
there was a mistake because the plaintiff had not resisted and was
not made to lie
down. He and Matomane had together consulted with the
State Attorney.
[24] The plaintiff was a calm,
dignified and steadfast witness. His version did not change during
cross-examination. Matomane and
Sitinga appeared unruffled during
cross-examination, but both of them tended to adapt and change their
evidence.
[25] It was common cause that a
contingent of at least six police officers were part of the operation
at the plaintiff’s house,
that Matomane and Sitinga entered the
plaintiff’s house, that he was handcuffed, and that he was
arrested and detained. There
were however mutually destructive
versions concerning whether or not the plaintiff gave permission to
enter and search, and whether
or not he was assaulted.
[26] I am of the view that there was
nothing inherently improbable in the plaintiff’s evidence. It
was submitted that it was
improbable that he was tortured for such a
long time, but it must be remembered that he estimated the time as
half an hour to an
hour, and that in view of what he had to endure,
it would have been very difficult to be accurate about the length of
time. Moreover,
the time of his arrest which was recorded as 02h30,
was more consistent with his version than with that of Matomane and
Sitinga,
who both testified that events in the plaintiff’s
house took a shorter time.
[27] I shall assume in favour of the
defendant that Matomane and Sitinga had been given some information
about the plaintiff and
that they did not randomly choose his house.
However, their version of how they came to be there and what went on
in the plaintiff’s
house, was very suspect.
[26] Matomane’s evidence about
the informal informer varied. Initially he said the informer
approached him with information
but later he said that he had called
him over, and after first talking about sport, asked him if dagga was
sold in the area. According
to Matomane’s pocket book he was
off duty at this stage. He threw away the dagga allegedly purchased
from the plaintiff.
This dagga was evidence. I find it highly
improbable in any event that police would throw dagga away, even if
it is a small quantity.
It is an illegal substance and would need to
be officially destroyed. Matomane did not mention the information he
received from
the informer in his statement for the police docket.
This was crucial evidence of dealing in dagga. In my view the
conclusion to
draw from all these factors is that the evidence about
the informer and the purchase of dagga, was a fabrication.
[29] It was put to the plaintiff in
cross-examination that the police agreed that he was not aggressive,
and that he had been handcuffed
because he was considered a flight
risk, and because there was only one police officer to guard him
while Matomane searched for
more dagga in the wall. Matomane and
Sitinga testified to this effect. I find it improbable that Matomane
and Sitinga considered
the plaintiff to be a flight risk and that
this was a reason he was handcuffed. It was agreed that he was not
aggressive. If he
had tried to escape, Matomane could easily have
assisted Sitinga. Sitinga’s evidence that the plaintiff might
have kicked
Matomane while he was bending down was clearly made up on
the spot. The demonstration of where the dagga was found showed that
it was not necessary to bend down to retrieve it. Moreover, there
were several police officers surrounding the house. Matomane’s
and Sitinga’s evidence that the plaintiff was looking around
was in itself a very flimsy ground for fearing that he would
escape,
and was a weak attempt to justify the use of handcuffs. According to
them he did not resist arrest. I am therefore of the
view that their
professed reasons for handcuffing the plaintiff were highly
improbable.
[30] In any event, the reasons given
in evidence for handcuffing the plaintiff, differed materially from
what was pleaded, namely
that he had resisted arrest and the police
used minimum force to bring the plaintiff to the ground in order to
handcuff him. It
is most probable that the State Attorney who
consulted with Matomane and Sitinga at the same time, obtained this
information from
them. On the defence version, they were the police
officers in the plaintiff’s house. In spite of the evidence,
including
the evidence that the plaintiff was standing while
handcuffed, no application was made to amend the plea. The plea
supported the
plaintiff’s version that he was handcuffed and
made to lie on the ground.
[31] Matomane’s and Sitinga’s
evidence about permission to enter and search the plaintiff’s
house was in my view
equivocal. In evidence-in-chief Matomane said
that the plaintiff opened the door and they entered. In
cross-examination this was
repeated, and it was only after the
plaintiff’s evidence that they had forced their way in was put
to him, that he said that
the plaintiff invited them in. Sitinga’s
evidence that they went in as police officers suggested that he
thought that they
did not have to get permission to enter. He merely
said that the plaintiff did not deny entry. In the light of this
evidence I
find it more probable that the plaintiff did not give
permission to enter and search his house. This finding is supported
by the
size and manner of implementation of the operation. Six police
officers climbing over a fence, and knocking at the door in the
manner described by the plaintiff, is not, in my view, consistent
with a request to enter and search.
[32] I find it highly improbable that
Matomane and Sitinga, both experienced police officers, would have
omitted to mention in their
statements for the police docket, crucial
events which occurred that night, if those events had actually taken
place. They were
the only witnesses to the alleged discovery of a
considerable quantity of dagga in the plaintiff’s house.
[33] For all the above reasons, I am
satisfied that the evidence of Matomane and Sitinga concerning the
issues in dispute, can safely
be rejected as false. I have already
mentioned that the plaintiff’s evidence was not inherently
improbable, and it was corroborated
to some extent by the plea. Given
that Matomane’s and Sitinga’s reasons for handcuffing the
plaintiff were false, it
is probable that the plaintiff was indeed
handcuffed so that he could be tortured in the manner he described.
[34] I therefore find that the
plaintiff proved on a balance of probabilities that the police
entered his house and searched it
without his permission, and that he
was assaulted in the manner he described.
[35] This was a serious invasion of
privacy. The police illegally entered the plaintiff’s home in
the middle of the night,
when he was asleep with his wife and child.
The assault was particularly severe. It may not have left physical
injuries, but the
experience of not being able to breathe and fearing
death, must have been terrifying. One cannot really find the words to
describe
what the plaintiff must have felt. He was at the mercy of
two police officers. He was rendered helpless and impotent in his own
home, while his wife and child were present, albeit it in another
room. The ordeal endured for some time. Matomane and Sitinga
were
unrepentant. In my view the amount of R110 000.00 which was claimed
was modest, as was submitted by Mr. Dyke, who appeared
for the
plaintiff. This amount was a globular sum for both the invasion of
privacy and the assault. I consider it to be an appropriate
award.
[36] There are many reported judgments
where damages have been awarded to plaintiffs whose fundamental
rights have been breached
by police officers, acting in the course of
their employment. These officers have been rightly criticised in
these judgments for
their failure to comply with their Constitutional
obligations. I echo such criticism. The importance of the need for
those in authority
or positions of power to comply with those
obligations is particularly highlighted because of the abuse of
fundamental rights which
took place in this country’s past.
Matomane and Sitinga were police officers prior to the enactment of
the interim Constitution,
followed by the Constitution. One would
think that they would have comprehended the enormous shift which took
place in relation
to the protection of fundamental rights. I
commented that they were unruffled during cross-examination. The glib
manner in which
they stood their ground tells me that they do not
have a problem with the notion of torture. They are senior police
officers. What
sort of message do they send to their juniors? What
effect does their conduct and that of police officers who commit
similar abuses,
have on the morale of the police force? Given the
seriousness of their conduct and its wider implications, I believe it
necessary
to direct that a copy of this judgment be forwarded to the
Minister of Police and the National Commissioner of Police.
[37] The following order is made:
[37.1] The defendant is to pay to the
plaintiff damages in the sum of R110 000.00, together with interest
thereon at the legal rate
from date of service of summons to date of
payment.
[37.2] The defendant is to pay the
plaintiff’s costs of the action, together with interest thereon
at the legal rate from
a date 14 days after date of
allocatur
to date of payment.
[38.3] The Registrar is directed to
forward a copy of this judgment to the Minister of Police and the
National Commissioner of Police.
______________
J M ROBERSON
JUDGE OF THE HIGH COURT
Appearances:
For the Plaintiff: Adv B Dyke,
instructed by Howard Collen Attorney, Port Elizabeth
For the Defendant: Adv R Pillay,
instructed by State Attorney, Port Elizabeth
1
His
wife died two months later.