Brief Summary

Tort — Unlawful arrest and detention — Plaintiff claims damages for unlawful shooting and arrest by police — Plaintiff shot in the eye, resulting in blindness, during police intervention at a tavern — Police admitted to arrest but claimed it was lawful under section 40(1)(a) of the Criminal Procedure Act — Court to determine the lawfulness of the arrest and the circumstances surrounding the shooting — Plaintiff's version corroborated by witness, while police denied wrongdoing — Onus on defendant to prove justification for arrest — Court finds in favor of the plaintiff regarding unlawful arrest and shooting, warranting assessment of damages.

Comprehensive Summary

Summary of Judgment

1. Introduction

This was a civil delictual damages action in the High Court of South Africa, Free State Division, Bloemfontein. The plaintiff sought compensation arising from an alleged unlawful shooting (assault) and unlawful arrest and detention by members of the South African Police Service acting within the course and scope of their employment with the defendant.

The parties were Thabiso Andries Rapudungwane as plaintiff and the Minister of Police as defendant. The plaintiff alleged that he was shot in the left eye with resultant blindness, then arrested without a warrant on a charge of public violence, and detained at Mafube Police Station before being taken for medical treatment.

Procedurally, the matter proceeded to trial with viva voce evidence from the plaintiff and one corroborating witness for the plaintiff, and two police witnesses for the defendant. The defendant’s amended plea admitted the arrest and detention but denied liability on the basis that the arrest was lawful under section 40(1)(a) of the Criminal Procedure Act 51 of 1977, while the shooting was met with a bare denial. After evidence concluded, the court identified the remaining contested issues as (i) whether the police shot the plaintiff, (ii) whether the arrest and detention were lawful, and (iii) if liability was established, the quantum of damages.

The general subject-matter of the dispute concerned the lawfulness of police conduct (use of force and deprivation of liberty) and the appropriate measure of damages for the infringements alleged and proven.

2. Material Facts

On the plaintiff’s version, on 29 December 2017 a group of police officers arrived at a tavern known as Freddie’s where the plaintiff and many other patrons were socialising and playing games. The police searched patrons and then moved back toward their minibus. A separate patron, Mr Petrus Pheello Mokoena, made remarks that angered the police. The plaintiff’s account was that Mokoena was assaulted by police officers, including Sergeant Ongama Theo Phuthuma, and left in pain on the ground.

The plaintiff’s evidence was that he followed the officers to their minibus and demanded an explanation for the assault on Mokoena and for leaving him behind. On this account, Sergeant Phuthuma alighted from the minibus holding a “long gun” and shot the plaintiff in the left eye. The plaintiff was then put into the minibus; Mokoena was later also placed into the minibus. The plaintiff said stones were thrown at the minibus thereafter by community members, and the police drove to the police station. He alleged that assaults and insults continued during transport and after arrival at the police station, and that despite bleeding and severe pain he was detained and his requests for medical attention were initially ignored, until an officer (Colonel Manqelani) observed the injury and arranged medical treatment.

It was common cause (and supported by medical records admitted into evidence) that the plaintiff was admitted to hospital from 30 December 2017 to 5 January 2018, with a diagnosis including blunt ocular trauma with a corneal laceration to the left eye caused by a rubber bullet, and that the prognosis included loss of vision. The plaintiff’s evidence was also that the criminal charge was ultimately withdrawn on 27 June 2018.

The defendant’s version differed materially. Sergeant Phuthuma testified that the police were deployed for public order duties, later attended at the tavern to look for a rape suspect, and that patrons became unruly when reprimanded for gambling. On this account, a crowd threw stones and bottles at police, prompting the discharge of a stun grenade to disperse the crowd. Sergeant Phuthuma claimed the plaintiff remained behind, threw a bottle toward an officer, resisted arrest, and was then arrested and taken to the police station. He denied shooting the plaintiff and stated he carried only a 9mm pistol and pepper spray, while “big guns” (shotguns used for crowd management) were in the minibus but were not used.

Sergeant Mampe Mokhananyane corroborated aspects of the defendant’s crowd-attack narrative and testified that she arrested Mokoena for malicious damage to property after seeing him throw stones at the minibus. She denied that the plaintiff and Mokoena were assaulted or insulted and maintained they had no visible injuries at the time of arrest.

The court treated as materially significant that the defendant’s witnesses asserted the plaintiff had no visible injury upon arrest, while the plaintiff’s version (supported by medical evidence) was that he sustained a serious eye injury consistent with being shot and that it was observed after detention. The court also placed weight on the fact that certain aspects of the defendant’s version emerged only later and were not put to the plaintiff and his witness during cross-examination.

3. Legal Issues

The court was required to determine three central questions.

The first was a factual and causation dispute: whether, on a balance of probabilities, the plaintiff was shot by the police (as alleged by the plaintiff) or whether the defendant’s denial and alternative narrative raised a reasonable basis to reject the plaintiff’s version.

The second was a mixed question of fact and application of law to fact: whether the plaintiff’s warrantless arrest and ensuing detention were lawful, in particular whether the defendant proved justification under section 40(1)(a) of the Criminal Procedure Act 51 of 1977 (arrest where an offence is committed in the presence of the arrestor).

The third was a value judgment concerning remedies: if unlawfulness was established, what would constitute fair and equitable compensation for the unlawful assault (shooting) and deprivation of liberty, and whether the plaintiff had proven entitlement to claimed past and future medical expenses, including whether expert evidence was required for future medical damages.

4. Court’s Reasoning

In resolving the mutually destructive versions, the court applied the established approach to factual disputes requiring findings on credibility, reliability, and probabilities, as articulated in Stellenbosch Farmers Winery Group Ltd & Another v Martell et Cie & Others 2003 (1) SA 11 (SCA). The court assessed the internal consistency of each version, how well each witness’s account withstood cross-examination, and whether the versions aligned with objective material, including the medical records.

On credibility and reliability, the court accepted that the plaintiff gave a coherent account of events and that his evidence was corroborated in all material respects by Mokoena. The court considered both witnesses to have remained consistent despite extensive cross-examination. The plaintiff’s account of having been shot shortly before arrest was further supported by the medical records documenting the nature of the eye injury and by the uncontroverted evidence that the injury was observed after detention, prompting arrangements for hospital treatment.

By contrast, the court found the defendant’s evidence, particularly that of Sergeant Phuthuma, to be circumspect and materially inconsistent. The court highlighted that Sergeant Phuthuma’s evidence in chief that he saw the plaintiff throwing a bottle after the stun grenade was discharged was undermined by his later concession under cross-examination that after the stun grenade was discharged he did not see the plaintiff or what he was doing. The court also regarded it as significant that Sergeant Mokhananyane could not corroborate the specific circumstances of the plaintiff’s arrest because she conceded she did not know how or when the plaintiff was arrested.

The court further reasoned that an important allegation introduced by Sergeant Phuthuma under cross-examination—namely that another officer, Lebothe, was injured by the bottle allegedly thrown by the plaintiff—had not been put to the plaintiff or Mokoena for comment, despite Sergeant Phuthuma having been present during their testimony. The court treated this failure, coupled with subsequent wavering by Sergeant Phuthuma about whether he saw where the bottle landed or whether anyone was injured, as supporting an inference of fabrication. The court’s evaluation was reinforced by the defendant’s failure to call potentially material witnesses, including the allegedly injured officer (Lebothe), the colleague who allegedly assisted with handcuffing, and the commander (Mokhoene). Referring to Shishonga v Minister of Justice and Constitutional Development and Another 2007 (4) SA 135 (LC), the court drew an adverse inference from the failure to call available witnesses able to elucidate the facts, particularly given the public duty of police officials to testify.

On probabilities, the court considered it highly improbable, on the defendant’s own assertion that the plaintiff had no injuries at arrest, that the plaintiff would have been shot by someone other than the police between detention and release for hospitalisation. The unchallenged evidence that the injury was observed after detention, together with the medical documentation, strengthened the inference that the injury occurred in the circumstances described by the plaintiff.

Having found that the plaintiff established, on a preponderance of probabilities, that he was shot by the police, the court applied the principle that assault is prima facie unlawful and that the defendant bears the onus to allege and prove justification. Referring to Mabaso v Felix 1981 (3) SA 865 (A), the court held that because the defendant had merely denied the shooting and had not pleaded any justification, the shooting was unlawful.

Turning to arrest and detention, the court stated that the onus rested on the defendant to prove justification for the arrest. The court accepted the plaintiff’s version that the public violence charge was fabricated and concluded that the defendant failed to prove a lawful arrest under section 40(1)(a). On that basis, the arrest was unlawful and, as a consequence, the detention was also unlawful. The court therefore held the defendant liable to compensate the plaintiff for damages flowing from the unlawful assault, arrest, and detention.

On quantum, the court identified the infringed interests as including the plaintiff’s dignity and freedom (in relation to arrest and detention) and bodily integrity (in relation to assault), with reference to sections 10 and 12(1)(a) of the Constitution of the Republic of South Africa, 1996. The court accepted that damages for deprivation of liberty are assessed ex aequo et bono, without a fixed formula, and that comparable awards serve only as guides, relying on the general approach reflected in sources including Minister of Safety and Security v Seymour 2006 (6) SA 320 (SCA); [2007] 1 All SA 558 and the caution against over-generosity reflected in De Jongh v Du Pisani N.O. 2005 (5) SA 547 (SCA) and Minister of Safety and Security v Tyulu 2009 (5) SA 85 (SCA).

In applying those principles, the court took account of aggravating features: the plaintiff was shot and then detained for approximately 15 hours rather than being promptly taken for medical treatment; he suffered total loss of vision in the injured eye; the injury caused permanent disfigurement and ongoing pain; and the conduct was attributed to police officers who are expected to protect citizens. The court considered the plaintiff’s suggested figures excessive and the defendant’s suggested figures inadequate, and then made its own assessment of what was fair to both sides.

In relation to medical expenses, the court accepted that the plaintiff had incurred costs but held that he had proved only the amount supported by documentation (R16 822.00). For future medical expenses, the court held that while proof is not required on a balance of probabilities in the same way as past loss, expert medical evidence was required to establish the nature, extent, and effects of the injury to enable quantification. As it was common cause that no expert evidence was provided, that claim failed.

On costs, the court held that the plaintiff had substantially succeeded and was entitled to costs.

5. Outcome and Relief

The court found in favour of the plaintiff on liability, holding that the plaintiff was shot by the police and that the shooting constituted an unlawful assault, and further that the plaintiff’s arrest and detention were unlawful because the defendant failed to prove justification under section 40(1)(a) of the Criminal Procedure Act.

The court ordered the defendant to pay R2 400 000.00 as damages consequent to unlawful assault, arrest, and detention, and R16 822.00 for past medical and related costs. The court further ordered payment of interest at the prescribed rate on the amounts at tempore morae. The defendant was ordered to pay the costs of suit. The plaintiff’s claim for future medical expenses was refused due to lack of expert evidence.

Cases Cited

Minister of Police v Erasmus [2022] ZASCA 57.

Mahlangu and Another v Minister of Police [2022] SACR 595 (CC).

Zealand v Minister of Justice and Constitutional Development and Another [2008] ZACC 3; 2008 (2) SACR 1 (CC).

Stellenbosch Farmers Winery Group Ltd & Another v Martell et Cie & Others 2003 (1) SA 11 (SCA).

Shishonga v Minister of Justice and Constitutional Development and Another 2007 (4) SA 135 (LC).

Mabaso v Felix 1981 (3) SA 865 (A).

Minister of Safety and Security v Seymour 2006 (6) SA 320 (SCA); [2007] 1 All SA 558.

De Jongh v Du Pisani N.O. 2005 (5) SA 547 (SCA).

Minister of Safety and Security v Tyulu 2009 (5) SA 85 (SCA).

Legislation Cited

Criminal Procedure Act 51 of 1977 (section 40(1)(a)).

Constitution of the Republic of South Africa, 1996 (sections 10 and 12(1)(a)).

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The court held that, on a balance of probabilities, the plaintiff proved that he was shot in the eye by a police officer, and that the defendant failed to advance and prove any justification for the assault, rendering the shooting unlawful. The court further held that the defendant failed to prove that the plaintiff’s warrantless arrest was justified under section 40(1)(a) of the Criminal Procedure Act 51 of 1977, and accordingly the arrest and detention were unlawful.

On quantum, the court awarded damages for the consequences of the unlawful assault and the unlawful arrest and detention, together with proven past medical expenses. The claim for future medical expenses failed for want of expert medical evidence necessary to quantify that head of damage. The plaintiff, having substantially succeeded, was awarded costs.

LEGAL PRINCIPLES

The judgment applied the approach to resolving mutually destructive versions by evaluating witness credibility, reliability, and probabilities, and then determining whether the party bearing the onus has discharged it, in accordance with Stellenbosch Farmers Winery Group Ltd & Another v Martell et Cie & Others 2003 (1) SA 11 (SCA).

It reaffirmed that assault is prima facie unlawful, placing an evidentiary and persuasive burden on a defendant to allege and prove justification; a bare denial, without a pleaded and proven justification, does not discharge that burden (with reference to Mabaso v Felix 1981 (3) SA 865 (A)).

It applied the principle that an adverse inference may be drawn where a party fails to call witnesses who are available and able to elucidate the facts, particularly where there is a public duty to testify, as discussed in Shishonga v Minister of Justice and Constitutional Development and Another 2007 (4) SA 135 (LC).

On arrest and detention, it applied the principle that the onus rests on the defendant to justify a warrantless arrest and consequent detention when these are admitted but alleged to be lawful, including where reliance is placed on section 40(1)(a) of the Criminal Procedure Act 51 of 1977.

On damages, it reiterated that awards for deprivation of liberty are assessed ex aequo et bono and that comparable awards serve as guides only; the assessment must remain fair to both parties and avoid overcompensation, with reference to Minister of Safety and Security v Seymour 2006 (6) SA 320 (SCA), De Jongh v Du Pisani N.O. 2005 (5) SA 547 (SCA), and Minister of Safety and Security v Tyulu 2009 (5) SA 85 (SCA).

Finally, it applied the principle that while past medical expenses must be proven by evidence of expenditure, a claim for future medical expenses generally requires expert evidence to establish the nature, extent, and effects of the injury sufficiently to enable the court to quantify the loss; absent such evidence, the claim cannot succeed.

Rapudungwane v Minister of Police (5524/2019) [2023] ZAFSHC 317 (4 August 2023)