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[2013] ZAECPEHC 27
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Martins v Minister of Police (1400/2011) [2013] ZAECPEHC 27 (4 June 2013)
REPORTABLE
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE, PORT
ELIZABETH)
Case No: 1400/2011
In the matter between:
VERNON DANIEL MARTINS
..............................................................................
Plaintiff
and
MINISTER OF POLICE
...................................................................................
Defendant
Coram:
Chetty,
J
Heard:
23
& 24 May 2013
Delivered:
4
June 2013
Summary:
Criminal
Procedure
–
Arrest – Without
warrant – Legality – Arrest effected for ulterior purpose
– Justification not established
Assault
–
Evidence establishing assault perpetrated on
plaintiff
Damages
–
Plaintiff awarded composite amount of R65
000.00
___________________________________________________________________
JUDGMENT
___________________________________________________________________
Chetty J
[1] This is an action for
damages premised upon an assault perpetrated upon the plaintiff and
his subsequent unlawful arrest and
detention by a member of the South
African Police Services on 23 December 2010. In his particulars of
claim the plaintiff alleged
that he was kicked on his lower leg,
felled by the blow, smacked, forcibly pushed towards a
police van,
violently kneed on his back to
facilitate his entry therein and thereafter hit on the right eye and
surrounds in the police van.
It is common cause that he was arrested
without a warrant by Constable
Ryno
Te Brugge
,
(Te
Brugge) in Missionvale, Port Elizabeth on the aforesaid date,
transported to the Algoa Park police station and thence to the
New
Brighton police station where he was detained and only released on
bail during the course of the following afternoon. Although
the
versions presented on behalf of the parties are irreconcilable, the
truth as to what actually occurred is not difficult to
discern. A
useful starting point in that exercise is the evidence of Warrant
Officer
Errol
Kleinhans
(Kleinhans)
.
[2] It is not in dispute
that during the early afternoon of 24 December 2010,
Kleinhans
,
to whom the case docket had been assigned for
investigation,
conducted an interview with the
plaintiff at the New Brighton police station. During his testimony
the latter acknowledged being
questioned by
Kleinhans
but his account of what transpired stands in direct
contradistinction to that of Kleinhans. On the plaintiff’s
version,
Kleinhans
conducted
a superficial interview with him, repaired to the other side of the
room where he sat down and started writing,
whereafter
he returned and asked him to append his signature to two blank pages
which he was told were documents relating to his
release on bail.
During cross-examination,
the plaintiff was
referred to a statement,
styled
“
interview
statement
”
,
ostensibly
emanating from him and bearing his signature and confirmed that the
signatures appearing on the nethermost left corner
of the statement,
exhibit “A10” and “11” were his,
but
intimated that the two pages to which he had appended his signatures,
were blank. The statement itself establishes the falsity
of the plaintiff’s evidence. It is a
pro
forma
document,
set in
type,
with blank spaces reserved for the
completion of the interviewee’s personal particulars and
whatever statement he/she wishes
to make. It is obvious from the
content of the statement that the plaintiff was the author thereof
and
Kleinhans
,
merely his amanuensis. What emerges from
Kleinhans’
evidence is that he accepted that the plaintiff’s
intervention in the incident the previous day was purely altruistic,
and this understanding for the plaintiff’s plight,
influenced him in hastening the plaintiff’s
release on bail later that afternoon.
[3] It was put to
Kleinhans
by Mr
Beyleveld
that the plaintiff’s
injuries, in particular the swollen bruised eye and surrounds, were
clearly visible during the interview
and the suggestion was made that
his refusal to acknowledge this clearly established his collusion in
the police’s attempt
to suppress such evidence.
Kleinhans
was an impressive witness. His evidence was clear and consistent. He
made concessions where necessary and at no stage did I discern
the
faintest hint that he was being untruthful. It is clear that he is an
honest man and an officer with a sound work ethic, in
essence, the
quintessential policeman. I unreservedly accept his evidence that
during the interview, the plaintiff was free of
injury. The corollary
of this finding is that I reject as false the plaintiff’s
evidence that he was assaulted in the region
of the eye as alleged.
The rejection of the plaintiff’s testimony on this score, does
not however, warrant the rejection
of the entire body of his
evidence, for it is evident, from
Te Brugge’s
own
testimony, to which I shall in due course advert to, that the
catalyst for the events which then unfolded was the autocratic
approach adopted by him on arrival at the scene. I shall deal with
this more fully in due course but consider first the testimony
relating to the assault.
[4] As corroborative
evidence for the assault allegedly perpetrated on him by
Te
Brugge
, the plaintiff called a number of witnesses to support his
account. On his version the assault was two phased, the first, in the
vicinity of his home where he was kicked on the shin, violently
manhandled towards the police van and forcibly deposited therein
and,
the second, approximately two kilometres from his home where the two
police vehicles stopped, the injured person transferred
from the one
vehicle to the other, whereafter
Te Brugge
landed a fist blow
in the area of his right eye. Certain aspects of the initial assault
were recounted by the plaintiff’s
wife, Mrs
Lauren Martins
and Mrs
Dominique Williams
and Ms
Marelise
Groep
.
It is unnecessary to traverse the latter two witnesses’
evidence in any detail. Suffice it to say that I can place no
reliance
whatsoever on their testimony. They contradicted themselves,
gave a garbled account of what occurred and their evidence is clearly
the product of reconstruction.
[5] As regards the blow
to the eye, the plaintiff’s testimony finds no direct
corroboration. As secondary evidence, he tendered
a series of
photographs of himself sporting an eye injury, allegedly taken by his
wife on the day of his release. Those photographs
however merely
vouchsafe his evidence that his right eye and surrounding skin tissue
was swollen and bruised. However, to prove
that the injury was
sustained subsequent to his arrest by
Te Brugge
, the plaintiff
and his wife both testified that on his release, Mrs
Martins
photographed the plaintiff using her cell phone. As
corroborative evidence, he called Mr
Dean du Plessis
(
du
Plessis
) who testified that he printed the photographs at his
place of employment on 27 December 2010. I have no doubt that the
latter
in fact printed these photographs but the difficulty in
accepting that this was done on the date alleged arises from the
plaintiff's
own testimony. By his own admission, upon his release,
the ignominy associated with the public assault perpetrated on him,
and
his subsequent incarceration, though ever present, appears not to
have perturbed him unduly – he had resigned himself to what
had
occurred. It was only on 6 January 2011 when he returned to work
that, at the behest of his employer, he visited a doctor and
was
thereafter advised by his employer to lay a charge of assault against
Te Brugge
. Although the plaintiff was called to testify on two
occasions, he made no mention whatsoever of having visited his place
of employment
on 27 December 2010 and having requested that the
photographs be printed. Although
du Plessis
maintained that he
printed the photographs on 27 December 2010, I am not persuaded,
given the passage of time which has since elapsed,
almost two and a
half years, that his recollection is accurate. The probabilities
are that they were printed only after the
plaintiff’s return
from the doctor.
[6] In my judgment the
plaintiff's evidence concerning the time and manner in which he
received this injury is contrived and falls
for rejection. And, so
too, his testimony concerning the series of events which preceded his
arrest, but, with one notable exception.
The juxtaposition of his
oral testimony against the content of the statement minuted by
Kleinhans
on the 24
th
of December 2010 and the
statement made by him when laying a charge of assault against
Te
Brugge
on
6 January 2011 ineluctably compels the conclusion that the former is
partly contrived.
[7] In the course of this
judgment I alluded to the statement minuted from the plaintiff by
Kleinhans
,
and found that notwithstanding his disavowal, not only of being the
author thereof, but moreover, that he was not appraised of
his rights
thereanent by
Kleinhans
,
was false. The statement places the plaintiff in the midst of the
incident, colloquially referred to in the evidence as, the
"mob
justice"
.
It reads as follows: -
“
On
23/112/10 at just after 19:00 I was in Missionvale. There was a mob
justice where a group of people was assaulting another person.
I
intervened and attempted to stop the fight. The police came also to
stop the fight. While the police was on the scene attempting
to stop
the mob continued to assault the person. I intervened and attempted
to stop the fight. The police ordered us to disperse.
I did not
because I wanted to help the person being injured. After I refused
the police arrested me. I did have something to drink
(beer) but I
was not drunk. I only wanted to help the person being assaulted. I
now know that it was impossible for the police
to determine who wants
to assault the person and who wants to help. I did not mean to offend
or
hinder
the police.”
[8] Under
cross-examination the plaintiff was specifically asked to explain the
apparent incongruity between his oral testimony
and the content of
the aforesaid statement. His response was that it was possible that
what was recorded therein was correct but
that he could no
longer clearly remember. The answer is rather perplexing. In his
evidence in chief, he steadfastly maintained
that prior to his
arrest, he stood in the yard of his house, and, at no stage ventured
near the incident, which he described as
being approximately fifteen
(15) to twenty (20) paces away from him. Under cross-examination he
resolutely stuck to this version
and decried any suggestion that he
was in the throng gathered around the injured person. The
aforementioned answer is incompatible
with his earlier testimony that
he could have been in the immediate vicinity of the injured person
and gives the lie to his evidence
that he merely witnessed the
incident from his home.
[9] The plaintiff's
untruthfulness hereanent however, does not inure to the benefit of
the defendant. Having admitted the arrest,
it bears the onus of
establishing, on a balance of probabilities, that the arrest was
justified. The testimony of
Te
Brugge
,
tendered to acquit the defendant of the onus resting upon it,
however, contained the seed of its own destruction. During his
testimony in chief,
Te
Brugge
volunteered
the information that shortly after his arrival on the scene the
plaintiff remonstrated with him saying,
"wat
julle doen is nie reg nie"
.
On
Te
Brugge's
version,
the admonishment is inexplicable - his conduct in maintaining order,
he held forth, was beyond reproach and did not warrant
censure. The
plaintiff's version, coupled to the admitted admonition however,
establishes the falsity of
Te
Brugge's
evidence
vis-a-vis
the arrest. I reject
Te
Brugge's
denial
of having sworn at and brandishing his firearm at the crowd and
accept that the plaintiff's admonition was actuated by
Te
Brugge's
conduct.
His indignation, at what he perceived to be the plaintiff’s
effrontery, appears to have clouded his reason and provided
the
catalyst for the arrest. His testimony relating to the plaintiff’s
interference with his official duties is, having regard
to the
testimony adduced and the probabilities, clearly contrived. Upon an
holistic appraisal of the testimony adduced, the arrest
was actuated
by an improper motive and effected for the sole purpose of assuaging
Te
Brugge’s
feeling
of resentment at being admonished by the plaintiff. The defendant has
consequently failed to discharge the onus to justify
the arrest.
Quantum
[10] It will be gleaned
from the aforegoing that although the extent of the violence
perpetrated on the plaintiff may properly be
regarded as a common
assault, it nonetheless constitutes an infringement of the
plaintiff’s right to bodily integrity, and
requires censure. On
the facts found proved, there was no justification for either the
assault or the subsequent arrest and detention.
As adumbrated,
Te
Brugge
took umbrage at being admonished by the plaintiff in
public and in a fit of pique lashed out at him. There can be no
excuse for
such conduct from officialdom whose task it is to maintain
law and order. Furthermore, the arrest and subsequent detention was
effected for no purpose other than to assuage
Te Brugge’s
wounded vanity. Although past awards provide a useful guide in
determining an appropriate award, the facts peculiar to each case
remain the overriding consideration and inform the award. In my
judgment, a fair award for the assault would be R25 000.00
and
R40 000.00 in respect of the unlawful arrest and detention.
[11] This brings me to
the question of costs. Although the composite award falls within the
jurisdiction of the Magistrates’
Court, it is not axiomatic
that costs on the Magistrates’ Court scale must follow. The
awarding of costs in any given case
is in the discretion of the trial
court, to be exercised judicially upon a consideration of the
relevant facts. In this case, as
a mark of disapproval at the conduct
of
Te Brugge
, for not only the assault, the arrest and
incarceration of the plaintiff without justification, but moreover,
for being deliberately
untruthful, an award of costs on the High
Court scale is entirely appropriate.
[12] In the result the
following orders will issue: -
The defendant is ordered
to pay the plaintiff the sum of R65 000.00 as and for damages.
Interest on the
aforesaid amount at the legal rate of 15.5% per annum from date of
judgment to date of payment.
The defendant is ordered
to pay the plaintiff’s costs of suit.
_____________________
D. CHETTY
JUDGE OF THE HIGH
COURT
On behalf of the
Plaintiff: Adv A. Beyleveld S.C / Adv T. Zietsman
Instructed by Cecil
Beyleveld Attorneys
Room 512 Oasim South,
Pearson Street
Central, Port
Elizabeth
Ref: C Beyleveld
Tel: (041) 582 1695
On behalf of the
Defendant: Adv H. Ayerst
Instructed by State
Attorney
29 Western Road
Central, Port
Elizabeth
Ref: Mr Swart
Tel: (041) 585 7921