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[2017] ZAECPEHC 22
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Dunjana and Others v Minister of Police (01/2015) [2017] ZAECPEHC 22 (9 March 2017)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
Policy
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH
Case
no: 01/2015
Date
heard: 17.11.2016;
21
to 24.11.2016; 5.12.2016
and
7.12.2016
Date
delivered: 9.3.2017
In
the matter between:
LUVUYO
FUNDILE DUNJANA
First Plaintiff
SAMKELISIWE
MZAMO HOPA
Second Plaintiff
CHUMA
FUYISIZWE KOSANA
Third Plaintiff
SINEKAYA
MCOPELA
Fourth Plaintiff
LUYANDA
NZO
Fifth Plaintiff
SINETHEMBA
PAYI
Sixth Plaintiff
MELIKHAYA
TANCA
Seventh
Plaintiff
vs
THE
MINISTER OF
POLICE
Defendant
JUDGMENT
TSHIKI
J:
[1]
In this action the seven plaintiffs have sued the defendant for their
arrest and detention which they contend were wrongful
and unlawful.
The plaintiffs also contend that during their arrest and detention
they were assaulted by the members of the
police whilst in their
custody. Therefore, in the process their constitutional rights
were infringed.
[2]
The first witness called for the defendant was
Mr
Jacobus Botha
.
He testified to the effect that on the 15
th
June 2013 the plaintiffs in this matter were arrested by the police.
The witness was the arresting officer who, after the
event made a
statement recording the arrest and what followed. He was also
on duty with
Constable
Mali
and
Warrant
Officer Mfukuli.
At that time, he was stationed at Kwazakhele task team. He also
informed the Court that he received information that
eight persons
were involved in an armed robbery at a Spar in Gelvandale.
However, he did not go to the scene but travelled
around the area
where he happened to see a white Nissan bakkie parked in a suspicious
manner. He obtained information that
the said vehicle was
stolen and matched the description of a vehicle that was seen leaving
the scene of robbery. Surprisingly
there was no evidence led to
link the white Nissan bakkie to the plaintiffs in this trial.
[3]
Botha’
s evidence is also that approximately fifteen
minutes into his inspection of the white Nissan vehicle, an unknown
person, who did
not wish to be named, approached him and provided him
with information that he had seen the white Nissan bakkie leave the
robbery
scene. And that he had also seen the occupants of the
Nissan bakkie climb into a silver VW motor vehicle and leave the
area.
The same individual provided
Botha
with a partial
registration number of [F....], without the numbers. According
to
Botha
he provided this information to his informants which
then led to him receiving information. That information
directed him
to the plaintiffs in this case who were in New Brighton
at the time.
[4]
Botha
’s
further testimony is a search of the two vehicles on the scene and
house which occurred as a result when certain items
of clothing were
found in the house. This revealed that a police officer,
Jasper
Dippenaar
informed him that he said clothing was similar to certain clothing
worn by the armed robbers seen in the video footage viewed by
Dippenaar.
Botha
did not view the said video and that such clothes were not worn by
the plaintiffs at the time.
[5]
What is important though is that the evidence of
Dippenaar
who was called as a witness by the defendant contradicted the
evidence of Botha in material aspects.
[6]
I agree with
Mr
Moorhouse
that the suspicion formed by
Botha
was
not reasonable nor objectively sustainable.
[7]
The next witness for the defendant was
Jasper
Ziegfried Dippenaar
.
His evidence was that he is a member of the South African Police
Service (SAPS) and is a Captain by rank. His position
in the
detectives is that of a group commander captain. He did visit
the scene of the robbery. On the date in issue
he visited the
scene with the purpose of securing the scene and also to ascertain
where the suspects could be. He was able
to see the video
footage at the scene. They also were able to help the cashiers
who were pointed with guns. He remained
on the scene and was
later called to attend at Ngalo Street in New Brighton. He saw
some of the suspects who were lying on
the ground. He also
identified the jacket that he had seen in the video. The video
also showed pictures of the firearms.
[8]
The next witness called by
Mr Wolmarans
was
Willem Patrace
Erasmus
who is a warrant officer in the SAPS. There was an
interim investigation until he was appointed. On receipt of the
docket he started his duties as the investigating officer. He
then compiled a photo identity album of the plaintiffs.
At the
time when the events occurred on the Saturday evening the 15
th
June 2013 he was at St Francis. He, however, happened to hear
about the matter and that he would be the investigator of this
case.
On Monday he bought the newspaper at a local shop in St Francis and
he saw on the front of the page of the events what
happened in
Gelvandale at the Spar. He came to know about this robbery at
that happened and he decided to start his investigation
of the case
which he gave it the urgency it deserved. He came to know from
the contents of the docket that some people whom
he was looking for
were detained at Kwazakhele. He then called
Warrant Officer
Smith
who was one of his team who assisted him. They then
compiled a photo of the ID album. They went to the Spar where
he
interviewed some witnesses that were involved in the armed
robbery. His team was already aware that the arrest by
Warrant
Officer Botha
and others was based on the clothing worn by the
robbers. The photographs they took were of the suspects in the
clothing
that they wore on the Saturday evening of their arrest.
It is exactly what he showed to the witnesses at the Spar. He
then booked out all seven of the plaintiffs. He introduced
himself to them and the reason why he was there. He explained
to them that he will be the investigating officer and told them that
he was going to release them because at that stage of the
investigation there was not enough to charge them and bring them
before Court. He then took all of their fingerprints, their
details which he documented into his docket and then released them.
The plaintiffs were caused to sign all the necessary
documents before
they were released. The plaintiffs did not give any explanation
to him what the alibi or any other explanation
of their whereabouts
for that evening and why they would say they did not commit the
robbery. The only explanation by the
plaintiffs about their
whereabouts for that evening was to say that it was the 21
st
birthday of one of them and that they were at Nando’s in
Standford Road. The witness then released them. The
witness then also said:
“
I think I
did ask you earlier, I just want to make sure, because of the time
where was urgency with you as regards the decision
to prosecute them,
to charge them … That is correct.”
“
Did you feel
that you needed further investigation before you could charge them?
…. Yes” (Therefore the release
appears to have been
provisional).
“
If you
should continue your investigation and find evidence with which to
charge them would you not then do that? Is that what happens
in the
normal course of events? … That is correct.”
[9]
When cross-examined by
Mr
Moorhouse
he conceded that he was not involved in the initial arrest and
detention of the plaintiffs. Therefore, he could not comment
on
what may have occurred at that point. The witness did not
dispute that the plaintiffs will give evidence that their arrest
and
detention was wrongful and unlawful. Moreover, there was no
reasonable cause for them to be arrested, and they will also
give
evidence that at the time of their arrest that they were in fact
assaulted,
“
but
you were not there, you cannot comment on that …no”.
[10]
At this stage, the plaintiffs opened their case led by the first
plaintiff
Luvuyo
Fundile Dunjana
.
Mr
Dunjana
testified that he was born on the 2
nd
January 1991. He is currently employed as a sales executive at
Melsa. At the time of the incident at hand, on the 15
th
June 2013, he was then already employed as a sales rep at Vodacom.
His qualifications are National Diploma in Marketing obtained
from
the Nelson Mandela Metropolitan University which he achieved in
2013. He was currently still studying. On the
date of
their arrest they went out at Summerstand at his girlfriend’s
house. They proceeded to Nando’s to have
dinner as it was
to be the birthday of
Sinekhaya
Mchophela
.
They had dinner for about 20 minutes and thereafter proceeded to
Nkosana
who
is the third plaintiff.
[11]
Whilst they were enjoying themselves at about 21h00 some of them
watching a soccer match they saw a police vehicle driving
past.
Later after 10-20 minutes they saw an unmarked VW Citigolf speeding
behind. The police officers came out of that
vehicle and
parked. There was chaos as the police officers were armed with
firearms and they were vulgar and were aggressive
towards them.
Each police officer had a firearm and used vulgar language. The
police said “
get
the fuck up out of the car”
while
others were screaming with their hands up. There was chaos as
other people like
Nzo
ran away. The police started kicking the door and had firearms
like R5 rifles. The first plaintiff and others were
told to
lift up their hands and they were grabbed with a collar by one of the
police officers. He was dragged out of the
vehicle on the
ground. The witness laid down on the ground .
[12]
According to the plaintiff they had done nothing wrong to provoke the
policemen. The police kicked the plaintiff with
booted feet on
his ribs. One of the policemen asked what had they done
(referring to the plaintiffs) to rob them. Some
neighbours came
and that was when the assault stopped. They were on the ground
for about 2-3 hours. The kicking and
assault stopped when the
rowed came. They did not know what they had done to the police
officers for them to be assaulted
and humiliated in that matter.
[13]
Thereafter the plaintiffs were arrested and detained in custody.
They were kept to stay in a dirty and dark cell.
About 30
minutes later the plaintiffs were given a piece of paper. On
that note the plaintiffs were arrested and detained.
[14]
According to the first plaintiff, the police were not even apologetic
for what they have done to the plaintiffs. The
police were
referring to the cells as Somalians. The plaintiffs were told
to lie on the floor in a cell which had an unbearable
smell.
They were detained from the 15
th
June 2013 and were held in detention until the 17
th
June 2013.
[15]
Each plaintiff was treated in the same manner by the police. I
do not have to deal with the evidence of all the plaintiffs.
I
say so, because their evidence is the same and is consistent in that
they were unlawfully arrested and detained as well as assaulted
by
the members of the South African Police. In the process their
constitutional rights were infringed upon by the members
of the
police. The main evidence of each plaintiff is sufficient for
this Court to make a conclusive decision. I say
so, because all
the plaintiffs had given their evidence satisfactorily.
[16]
The evidence of Botha was that the plaintiffs were made to lie on the
tarred road, under the police guard for about three hours
prior to
having been formally arrested. This was done with disregard of
their constitutional rights having been explained
to them. I
must also emphasize that the manner in which the defendants’
employees had disregarded the plaintiff’s
rights is as if the
citizens of this Country have no constitutional rights. From
the evidence there is no justification for
the defendants’ to
assault and detain the plaintiffs. There is also no explanation
by the defendant why the plaintiffs
had to be made to lie on the
tarred road for no apparent reason. This is more so when this
treatment has to be done for about
three hours.
[17]
In his address on quantum
Mr Wolmarans,
has indicated that he
had an emotional evidence in this trial. He said:
“
We’ve
a lot of emotional evidence in this trial. We’ve first
had it now from Mr Hopa again repeatedly saying what
good boys these
are and the good homes they come out of and they could never have
committed an offence like this and why they be
arrested. I
didn’t argue with that. I mean we saw all of them here in
the witness box. They were all clearly
nice young men.
But that is not the question for Your Lordship to answer as regards
the arrest.”
[18]
Indeed as
Mr
Wolmarans
has indicated this Court is not here to prove or disprove that they
robbed the Spar. We were here to determine whether the
arrest
was justified, whether there was a reasonable suspicion that is what
we look at.
[19]
Indeed there can be no doubt on what
Mr
Moorhouse
has said that it is pertinent to note that the arrestor must
entertain a suspicion and that such suspicion must rest on reasonable
grounds. There must be evidence that the arresting officer
formed a suspicion that is objectively sustainable and is of such
a
nature that a reasonable person would have held such a suspicion (
R
v Van Heerden
1958(3)
SA 150(T)
,
Duncan
v Minister of Law and Order
1986(2)
SA 805 (A)
,
S
v Reabow
2007(2)
SACR 292 (E)
at
297
).
[20]
In addition, where an arrest has occurred in circumstances where the
arresting officer did not form his or her own suspicion,
but relied
on the opinion of somebody else, such arrest is unlawful (
Ralekwa
v Minister of Safety and Security
2004(1)
SACR 131 (T)
paras [11, 12 and 14].
[21]
It follows that sight must not be lost of the fact that the
liberty of the individual is one of the fundamental rights
of a man
in a free society which should be jealously guarded at all times and
there is a duty on our Courts to preserve this right
against
infringement. Unlawful arrest and detention constitute a
serious inroad into the freedom and the rights of an individual
(see
Thandani
v Minister of Law and Order
1991(1)
SA 702 (E) at 707B
).
[22]
As
Mr Moorhoouse
has contended in the present matter the
suspicion formed by Botha was not reasonable nor objectively
sustainable particularly in
that:
[22.1]
Botha’
s evidence regarding receiving information from
unknown persons and informants is not plausible and clearly a
fabrication after
the fact.
[22.2]
The information received by
Botha
regarding the description of the vehicle was only that it was a
silver VW motor vehicle with registration numbers contained [F....].
This was not sufficient information to inform his alleged suspicion,
particularly in circumstances where the plaintiffs’
evidence
was quite clearly that
Mcophela’
s
vehicle was not silver in colour.
[23]
It follows that the arrestor in the shoes of
Mr Botha
must
entertain a suspicion and that such suspicion must rest on reasonable
grounds. In
Minister of Safety and Security v Sekhoto and
Another
2011(1) SACR 315 (SCA)
at para [6] Harm DP had
this to say:
“
As
was held in
Duncan
v Minister of Law and Order
,
the jurisdictional facts for a s 40(1)
(b)
defence are that:
(i)
the
arrestor must be a peace officer;
(ii)
the
arrestor must entertain a suspicion;
(iii)
the
suspicion must be that the suspect (the arrestee) committed an
offence referred to in Schedule 1; and
(iv)
the
suspicion must rest on reasonable grounds.”
[24]
If one of the requirements are lacking the requirements are not
sufficient. It follows in this case that the listed grounds
for
suspicion listed in the
Minister
of Safety and Security and Another
supra
have
not been satisfied in this case. This is so because every
deprivation of liberty is presumed to be unlawful especially
in
circumstances where the arrest and detention of the plaintiff is
admitted. The defendant has failed the onus in this case
because it has failed the test as prescribed above.
[25]
It follows in this case that the arrestor did not prove all the
jurisdictional facts as stated above.
[26]
Therefore, during the arrest of the plaintiffs their arrest and
detention was wrongful and unlawful. In addition according
to
the evidence of the plaintiffs they were assaulted and their
constitutional rights were infringed upon.
[27]
It, therefore, follows that, having regard to:
[27.1]
the nature and manner of the treatment suffered by the plaintiffs;
[27.2]
the standing and social status of the plaintiffs;
[27.3]
the fact that their treatment was in full view of the members of the
public and the plaintiffs family members;
[27.4]
the fact that none of the plaintiffs had been arrested and detained
before this incident;
[27.5]
the nature of the verbal abuse suffered by the plaintiffs;
[27.6]
the fact that they were forced to lie on a tarred road, in view of
the community for three hours;
[27.7]
the period over which the plaintiffs suffered from the injuries
sustained;
[27.8]
the fact that they were threatened with firearms;
[27.9]
the psychological effects suffered by the plaintiffs as well
as the humiliation degradation and loss of dignity
they experienced
and the period of detention;
[27.10]
the filthy and the inhumane conditions in which the plaintiffs were
detained and the lack of apology in respect of their
treatment;
[27.11]
the gross failure of the defendant to comply with its legal duties;
[27.12]
the grave infringements of the plaintiffs’ constitutional and
private law rights;
[27.13]
the quantum of the general damages claimed by each plaintiff herein
is just and equitable.
[28]
The claim of the plaintiffs is successful. What next follows will be
the determination of quantum.
_________________________
P.W.
TSHIKI
JUDGE
OF THE HIGH COURT
For
the plaintiffs
:
Adv
Moorhouse
Instructed
by
: Egon
Oswald Attorneys
PORT
ELIZABETH
Ref:
Mr EA Oswald/sh/DUN13/0001)
Tel:
041 – 582 5170
For
the defendant
:
Adv
Wolmarans
Instructed
by
: The
State Attorney
PORT
ELIZABETH
Ref:
7/2015/C
Tel:
041 – 585 7921