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[2012] ZAECPEHC 98
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Modikoe v Mininster of Safety and Security (2927/2010) [2012] ZAECPEHC 98 (13 December 2012)
NOT REPORTABLE
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE – PORT
ELIZABETH)
Case
No.: 2927/2010
Date
heard: 27 - 30 August 2012
Date
delivered: 13 December 2012
In the matter between:
ANTHONY ROMANAHENG MODIKOE
Plaintiff
and
MINISTER OF SAFETY AND SECURITY
Defendant
J U D G M E N T
DAMBUZA, J
:
This is a claim for damages suffered
by the plaintiff as a result of his arrest and alleged assault by
members of the South African
Police Services (SAPS).
At the start of the trial an
application was brought, on behalf of both parties, for the issues
relating to the defendant’s
liability for the damages claimed
to be determined separately from the issues relating to the amount
of damages claimed by the
plaintiff. I granted the application and
the trial proceeded accordingly. This judgment is therefore only on
whether the plaintiff’s
arrest was lawful and whether he was
assaulted by members of the SAPS.
On the pleadings it was common cause
that the plaintiff was arrested by the police on 6 October 2007 and
that he was kept in detention
until 8 October 2007. The defendant
admitted that the plaintiff was pepper sprayed, but denied that he
was assaulted in any
other way. At the trial the parties were in
agreement that, as the arrest of the plaintiff by members of SAPS
was common cause,
the defendant bore the onus to prove the
lawfulness thereof. They were also in agreement that the plaintiff
had the onus to
prove the alleged assault on him.
The version of the plaintiff
consisted of the evidence of the plaintiff himself, his sister,
Tebogo Modikoe and Dr Buyile Tom
who examined the plaintiff shortly
after his release from police custody. The version of the defendant
was tendered through the
evidence of Constable Xolile Sobhuza, who
was in charge of the police cells at KwaNobuhle Police Station,
Uitenhage, when the
plaintiff was brought in for incarceration after
his arrest and Constable Thembelani Potwana, one of the two
arresting officers.
Potwana had been in the company of Sergeant
Phungulwa on the day of the arrest.
Although the
versions of the parties regarding the arrest the plaintiff’s
arrest is broadly similar, they differ on the
finer and decisive
details on how the incident unfolded. For that reason it is
necessary that I set out in full, the evidence
led by each witness.
It is common cause that at the time
of his arrest, the plaintiff was in the company of his 13 year old
son. The arrest took place
in the vicinity of Mdledle and
Jongilanga Streets in KwaNobuhle Township, Uitenhage. He was
arrested by Constables Potwana and
Phungulwa and was then detained
in police custody at Mkoko Police Station, KwaNobuhle, Uitenhage
from the Saturday morning, 6
October 2007, until the following
Monday morning,
8 October 2007, when he was released.
The plaintiff’s evidence was
that he was walking together with his son who was carrying a bottle
of Old Brown Sherry in
his hands. A marked police vehicle (a van),
stopped next to them. One of the police officers, indentified at
the trial as Sergeant
Phungulwa called the plaintiff’s son to
him, took the bottle of Old Brown Sherry which the plaintiff’s
son was carrying
and poured the contents out onto the ground.
Thereafter the police vehicle drove on and the plaintiff and his son
also went
about their own way.
The plaintiff and his son then went
to the plaintiff’s parental home in Jongilanga Street and
later left to go back to the
plaintiff’s house. On the way
they came across the same police vehicle that had earlier stopped
next to them. It was
parked in front of a shop in Mdledle Street.
The plaintiff went to the police vehicle and confronted Sergeant
Phungulwa who
was in the vehicle on why he had thrown away his
alcohol. An argument ensued between the plaintiff and the two
police officers.
The police officers then alighted from their
vehicle, upon which the plaintiff and his son ran away. The police
officers gave
chase. The plaintiff’s son managed to outrun
the police officers. The plaintiff, however, fell and the police
officers
caught up with him. He attempted to apologise for having
“disturbed them”
. However they would not listen,
they, instead, handcuffed him and tripped him such that he fell onto
the ground. He tried to
get up and tried to loosen himself from the
handcuffs. One of the police officers then took out pepper spray
and sprayed the
plaintiff and thereafter dragged him to the police
vehicle. The plaintiff lost his sight for a while as his eyes were
burning
and watering, but later regained vision. The police
officers threw the plaintiff into the police van. While he was at
the back
of the police van he heard the voice of his sisters who
had, apparently, been alerted to what had happened. He could hear
his
sisters’ voices saying that they would be going to Mkoko
Police Station.
At the police station the plaintiff
was taken to a certain room not far from the reception area. In
that room the two police
officers who had arrested him assaulted him
using a cricket bat, a baton and assaulting him with fists and
booted feet. All
this whilst his hands were still in handcuffs.
At some stage a second pair of police officers also came into the
room and also
participated in the assault on him. The police
officers also burnt the plaintiff’s left hand with a
cigarette. He was
then left on his own for about three hours, after
which another police officer took him to the police cells. He
spent the following
day, a Sunday, in the police cells. On Monday,
he was taken to court where he was released without being formally
charged;
presumably the release was at the instance of the public
prosecutor.
Tebogo Modikoe, the plaintiff’s
sister testified that on the day in question she was about to go to
work at Pick ‘n
Pay in Uitenhage when she received a report
from the plaintiff’s son. She then rushed to the scene
together with her sister.
On their arrival at the scene she saw the
police vehicle and two police officers pushing the plaintiff into
the police van.
When she asked the police officers as to what was
going on, she was told to go to Mkoko Police Station. On her
arrival at Mkoko
Police Station she could hear her brother’s
voice crying out, from somewhere in the police station building,
asking for
forgiveness. During the course of that weekend, and in
particular on the Sunday, she secured services of an attorney, Mr
Faltein
who tried in vain to have the plaintiff released on bail.
The plaintiff remained in the police cells until he was released on
Monday morning.
Dr
Buyile Tom gave
evidence on the injuries sustained by the plaintiff. He examined
the plaintiff on 8 October 2007 at 12:00 noon;
this was shortly
after the plaintiff’s release from police custody. Dr Tom’s
observations are recorded on a J88
form which is part of the bundle
of documents handed into court by both the parties. According to Dr
Tom’s evidence the
plaintiff sustained numerous lacerations,
bruises and abrasions all over his body, on his head, his chest, his
arm and lower
back. He also sustained swollen wrists, a fracture
on left elbow, a fracture on the right ankle and a laceration on the
lower
lip.
Constable Xolile Sobhuza testified
that on the morning of the incident he was on duty at the Mkoko
Police Station and was placed
at the police cells as Cell Commander.
His duties included opening the main police station door leading
to the police cells
for new arrestees to be brought in. If a
prisoner was injured it was his duty to record any injuries on the
arrestee in the
Occurrence Book. On the day of the incident, he was
on duty from 6:00 in the morning to 6:00 in the early evening. He
could
recall the plaintiff being brought into the cells by
Constables Potwana and Phungulwa. According to him, when the
plaintiff
was brought into the police cells he was drunk and his
lower lip was
“a bit swollen as if he had fallen”.
Sobhuza did not notice any other injuries on the plaintiff
except the swollen lip. Throughout the day as he was in charge of
the police cells, the plaintiff was never assaulted. He denied the
allegations by the plaintiff that he was assaulted with a cricket
bat and a baton.
Constable Thembelani Potwana
testified that he was the driver of the police van that stopped next
to the plaintiff and his son
on the day of the incident. He was in
the company of Sergeant Phungulwa and they were on their way to buy
bread for detainees
and to pick up Mrs Maneli who was a matron at
the police station at the time. On their way they came across the
plaintiff who
was in the company of his young son. The plaintiff
was drinking alcohol from a bottle. At Phungulwa’s suggestion
Potwana
stopped the vehicle. Phungulwa took the bottle containing
alcohol and emptied its content onto the ground, admonishing the
plaintiff
on what he (the plaintiff) was teaching young children by
drinking alcohol as he was doing. Thereafter the police officers
proceeded
to pick up Mrs Maneli and then drove to the shops. Whilst
the police vehicle was parked in front of the shops the plaintiff
approached it and confronted Phungulwa, asking him why he had thrown
away his alcohol. The plaintiff hit Phungulwa with a fist
on the
face. Potwana alighted from the police vehicle and, as he was doing
so, the plaintiff ran away. The two police officers
then gave
chase. The plaintiff ran towards the houses, but before he reached
the houses, he tripped and fell, and the police
officers caught up
with him and apprehended him. As they tried to handcuff the
plaintiff he fought back, tearing Potwana’s
jacket in the
process. The plaintiff also hit Potwana with a fist on the face.
It is at this stage that Potwana pepper sprayed
the plaintiff.
Ultimately the police were successful in handcuffing the plaintiff
who had not stopped fighting back. Phungulwa’s
spectacles
broke in the process.
Potwana went to fetch the police
vehicle which was parked some distance away so that they could load
the plaintiff in it. However,
on his way back he saw the plaintiff
running away, with his hands still in handcuffs. The two police
officers had to chase the
plaintiff again. The plaintiff jumped
over a fence and fell down on the other side thereof. It turned out
that as he (the plaintiff)
jumped to the ground, on the other side
of the fence, his face had hit a pole, resulting in a bruise. The
policeman caught up
with the plaintiff again and loaded him onto the
police vehicle. This was, once more, not without a struggle, as
the plaintiff
resisted being placed into the police vehicle.
According to Potwana, the plaintiff refused to pull his legs onto
the back of
the police vehicle, such that Phungulwa had to hit them
with the back door of the vehicle as he was trying to close same.
It
was, only after the plaintiff had been hit with the door of
vehicle several times that he eventually pulled his legs up and into
the police vehicle. The plaintiff was then taken to Mkoko Police
Station. At some stage prior to being put in the police cells
the
plaintiff tried to bribe Phungulwa and Potwana, promising to give
them R1,000.00 and apologising for having assaulted a policeman.
Potwana denied that they had at any
stage, assaulted the plaintiff, and insisted that any injuries that
the plaintiff might have
suffered, must have been sustained either
when he fell as he was being chased by the police officers,
particularly when he jumped
over the fence, or as he was hit by the
backdoor of the police vehicle during the struggle to load him into
the police vehicle.
According to Potwana, at the police
cells the plaintiff was charged with an assault on a police officer.
Thereafter the two police
officers left the plaintiff who was, at
that stage, well and walking on his own, albeit with a slight limp.
There are therefore two different
versions before me regarding (1) how the arrest took place and the
reason therefore; and (2)
how the plaintiff sustained the injuries
on his body. It is not in dispute that the plaintiff did sustain
the injuries; what
is in dispute is whether the injuries were
inflicted on him by the police. It therefore becomes necessary that
I evaluate the
evidence before me to determine whether the parties
have discharged the onus resting upon them.
The plaintiff was, in my view, a good
witness. His evidence was clear and consistent. He made a number
of admissions which,
in my view indicate sincerity. Firstly, he
admitted that his conduct of giving his 13 year old son alcohol to
carry was reprehensible.
Further, he admitted that he confronted
the police in front of the shops whilst they were in their vehicle.
He also admitted
that he then ran away when they alighted from
their vehicle. Even further, and perhaps more importantly
repeatedly admitted,
without hesitation that he strenuously resisted
arrest and that he
“fought back”
in the hope that
he could delay his arrest until his sisters arrived at the scene.
The version tendered on behalf of the
defendant on the other hand was, generally of a poor quality. It
was riddled with contradictions
and improbabilities. On Potwana’s
version the plaintiff sustained injuries at the scene where he was
arrested and when
he was being loaded into the police vehicle.
According to him the cause of the injuries sustained by the
plaintiff was the plaintiff’s
own conduct of resisting arrest.
He denied that the plaintiff was assaulted with a baton, cricket
bat, fists and booted shoes
or in any manner at the police station.
But Potwana’s evidence does not account for the nature, the
number and location
of the injuries on the plaintiff’s body.
For example, Potwana’s version does not account for the
laceration on the
plaintiff’s lower lip; his version also
does not account for the cigarette burn injury on the plaintiff’s
left hand
(which supports the plaintiff’s version that he was
burnt with (a) cigarette(s)). The swollen left hand thumb, the
fractured
ankle, and bruises all over the body, which are clearly
visible from the photographs that were taken a few hours after the
plaintiff’s
release, cannot be explained on the version
tendered on behalf of the defendant. There is no explanation as to
why Sobhuza would
not have observed the injuries sustained when the
plaintiff was brought into the police station if he sustained them
during his
arrest. As I have stated it was Sobhuza’s evidence
that when an injured arrestee is brought into the police station an
entry is made in the Occurrence Book regarding any injury the
arrestee has. During cross-examination Sobhuza attempted to qualify
his evidence by stating that only serious injuries are recorded in
the Occurrence Book. This is improbable. Firstly police
officers,
not being doctors, would be in no position to assess
“seriousness”
of injuries that would warrant recordal in the Occurrence Book.
Further, it was put to the plaintiff, during cross-examination
that
Potwana and Phungulwa offered to take him for medical examination
prior to taking him to the police cells, but the plaintiff
refused.
This implies that the two arresting police officers were aware of
the injuries prior to taking the plaintiff to the
police station and
considered them sufficiently serious to require the attention of a
medical practitioner. If the plaintiff
was already injured when he
was taken to the police station, to the extent that he was given an
option of being taken for medical
examination, Sobhuza’s
attention would have been drawn to the injuries. I am of the view
that the injuries sustained support
the plaintiff’s version
that he was assaulted at the police station. Hence Sobhuza’s
evidence that the plaintiff
was walking
“normally”
when he arrived at the police station
.
It is also significant that the
police officer whose alleged assault by the plaintiff was the cause
for the arrest, did not give
any evidence. There is no explanation
as to why Phungulwa did not testify. The two police officers who
testified were, in my
view, not honest in the evidence they gave.
They contradicted each other and their evidence does not translate
to any intelligible
version. Their evidence is not consistent with
other objective evidence in the case. I do not intend to
speculate as to the
true reason why Phungulwa and Potwana deemed it
necessary to arrest and detain the plaintiff. But Potwana’s
evidence was
so poor and unreliable that I am unable to find that
the plaintiff did assault Phungulwa and that the arrest was
therefore lawful
in terms of
section 40(1)(a)
of the
Criminal
Procedure Act 51 of 1977
, as the defendant pleaded. In fact, what
the defendant pleaded was that the plaintiff assaulted both
Constable Potwana and Sergeant
Phungulwa while they were performing
their official duties. As I have stated, Potwana’s evidence
was that the reason for
the arrest was an assault on Phungulwa.
The version tendered on behalf of the defendant fails to discharge
the onus on the
defendant to prove that the arrest and detention of
the plaintiff was justified.
Regarding the assault on the
plaintiff, I am satisfied that the plaintiff sustained the injuries
referred to at the hands of the
police.
The following order shall therefore
issue:
The defendant is ordered to pay to
the plaintiff such amount in damages as the plaintiff may prove to
have suffered as a result
of:
the plaintiff’s arrest and
detention from 6 December 2007 to 8 December 2007;
the assault on the plaintiff by
members of the South African Police Services on 6 December 2007;
The defendant is ordered to pay the
plaintiff’s costs of the trial.
_________________________
N.
DAMBUZA
JUDGE
OF THE HIGH COURT
Appearances
:
For the plaintiff:
Adv H. Ayerst
Instructed by Daniel Saks Inc, Port
Elizabeth
For the defendant:
Adv N. Gqamana
Instructed by The State Attorney, Port
Elizabeth