Minister of Police v Heleni (Appeal) (CA 4/2022) [2023] ZAECMKHC 55 (11 May 2023)

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[2023] ZAECMKHC 55
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Minister of Police v Heleni (Appeal) (CA 4/2022) [2023] ZAECMKHC 55 (11 May 2023)

NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, MAKHANDA)
CASE
NO. CA 4/2022
In
the matter between:
THE
MINISTER OF POLICE                                      Appellant
and
BUHLALI
HELENI                                                      Respondent
APPEAL
JUDGMENT
HARTLE
J
Introduction:
[1]
Both parties, with the leave of the court below, appeal
against
aspects of a judgment and order of the regional court delivered on 4
October 2021 in an action for damages for assault
(claim 1) and
malicious, alternatively wrongful and unlawful arrest and detention
(claim 2).
[2]
I will refer to the parties as they were in the court
below.
Grounds
of appeal:
[3]
The defendant appeals against the trial court’s
finding that
the plaintiff’s arrest and subsequent detention over a period
of two days (approximately 51 hours) was wrongful
and unlawful; the
award of damages in respect thereof; interest thereon; and the
punitive costs order made in the plaintiff's favour.
The defendant
also challenges the trial court's decision to have deprived him of
his costs in respect of the plaintiff’s
claim of assault which
it had dismissed, but in respect of which it failed to apply the
general rule that the successful party
is entitled to costs in
his/her favour.
[4]
The
plaintiff in her cross appeal challenges the dismissal of the assault
claim as well as the court's failure to have found in
her favour in
respect of her claim that the arrest and detention was malicious, as
opposed to merely being wrongful and unlawful.
In the latter respect
it was contended that a finding by the trial court that her arrest
(and subsequent detention) were entirely
without just cause and
effected with malice - apart from being the appropriate and correct
finding on the evidence, would have
properly elevated the gravity of
the matter and justified her claim for special damages arising. It
was contended on her behalf
at the appeal that the trial court in any
event failed to give recognition to the fact that, in consequence of
the incident, the
plaintiff suffered from an adjustment disorder with
mixed anxiety and depressed mood, an aggravating feature of the whole
debacle
that, apart from having a natural causal connection with the
claimed assault, ought to have provided a significant underpinning

for the damages claimed in this respect.
[1]
Such costs would enable her to seek therapy and medication to
ameliorate her symptoms which, even at the time of the trial, were

notably still in evidence.
The
pleadings:
The
Plaintiff’s particulars of claim:
[5]
The
plaintiff alleged, in respect of claim 1, that on 7 December 2016 she
had been wrongfully and unlawfully assaulted by Sergeant
Oliver and
other members of the South African Police Service (“the
Service”) in the street in front of her home, who,
inter
alia
,
violently pushed and shoved her against a wall, stamped on her right
foot, grabbed her, and dragged her along the ground to a
police van.
Sergeant Oliver had also subjected her to verbal abuse. Members of
the Service had allowed an I-Patrol member by the
name of “Robert”
to further assault her by pepper-spraying her.
[2]
She claimed to have sustained various physical injuries for which she
received medical treatment, together with emotional trauma,
which
manifested itself,
inter
alia
,
in the form of symptoms of post-traumatic stress disorder, for which
she also received therapy.
[6]
In respect of claim 2 it was pleaded that she had been
wrongfully,
unlawfully, and maliciously arrested without a warrant by members of
the Service on “false charges of assault
on Police and
Interference with Police Duties”.
[7]
In order to give context to her complaint that her arrest
was
wrongful, unlawful,
and malicious
, she pleaded that she had
not committed any offence in the presence of a peace officer; no
reasonable suspicion could have existed
that she had committed a
schedule 1 offence; the arresting officers had no reasonable and
probable cause to arrest her on the supposed
charges, and that they
had effected the arrest
animo injuriandi
(with malice).
[8]
It was further alleged that (in any event) the arresting
officer had
failed to explain her constitutional rights to her, or to have
complied with sections (4) and (8) of the Police Standing
Order G341
relating to the reading of her rights to her at the scene of her
putative arrest.
[9]
She alleged further that she was detained arbitrarily
and without
just cause on the said false charges at the Humewood Police Station
in Gqeberha from Friday 7 December 2016 until her
release from court
(but without any actual appearance before a magistrate) on Monday 9
December 2016. During this period, she was
treated abysmally by
members of the Service and was even verbally abused by the Station
Commander who shouted at her and raised
his hand to her as if he had
wanted to hit her. He further threatened to keep her for a week at
the police station.
[10]
The bases upon which she claimed that her detention was similarly
malicious
in all the circumstances are that there were no reasonable
and or objective grounds to justify the charges; the arresting
officer
and other implicated members failed to apply their minds in
respect of her detention and the circumstances relating thereto; she

was not informed of her right to institute bail proceedings as
required by section 50 (1)(b) of the Criminal Procedure Act, No.
51
of 1977 (“CPA”); she was not released on police bail in
terms of section 59 (1)(a) or section 59A of the CPA; her
detention
was motivated by malice as the charges brought against her were
false; and she was not brought before a court of law
as soon as
reasonably possible after her arrest.
[11]
Her detention on this basis infringed her various constitutional
rights and
caused her to suffer humiliation. She also suffered
psychological trauma as a result of the incident which she claimed
would need
to be redressed through future psychotherapy and
pharmacotherapy, which special damages were costed in the sum of
R23 600.00.
The
defendant’s plea:
[12]
The defendant denied that the plaintiff was assaulted by the Police
or at all
(or in effect that the incident foreshadowed by her
particulars of claim had ever occurred) and put her to the proof.
Indeed, neither
was any basis laid to suggest that any injuries
alleged to have been sustained by her might in fact have been
incurred as a result
of the members having used minimal and
reasonable force during the admitted arrest.
[13]
The arrest and subsequent detention were claimed justified under the
mantle
of the Police’s entitlement to have arrested her without
a warrant on the basis provided for in terms of section 40 (1)(a)
of
the CPA. In this respect it was vaguely asserted that she had
committed “an offence” in the presence of the arresting

officer (who was also a peace officer), which matter “was
investigated under Humewood Cas 109/12/2016”. (It is common

cause that the plaintiff was arrested “together” with a
Mr. Olwethu Peter. Although on the face of the A1 statement
(SAPS 3M
(b)) in the docket in question the offence concerned is described as
“Attempted Theft, Assault on Police, Possession
of Dangerous
weapon, Interference,” the notice of rights issued to the
plaintiff per SAP14 confined itself to confirmation
that she had been
detained for “
Assault on Police…Interference in
Police duties.”
These are the same offences with which she
was formally charged later that evening, whereas Mr. Peter was
separately warned, shortly
after her own deposition, on charges of
“Attempted theft, Assault on Police, Possession of Dangerous
weapon.”)
[14]
Also denied were the claimed verbal assault or the pepper-spraying
incident.
The defendant even surprisingly feigned ignorance of the
fact that the plaintiff had as a result of the claimed assault on her
laid a criminal charge at the implicated members’ own police
station under Humewood Cas 146/12/2016.
[15]
The injuries alleged to have been suffered by the plaintiff were
denied, but
a closer reading of the plea rather entails a denial that
they were purportedly caused at the hands of the defendant's members.

In any event the plaintiff was also put to the proof of her claimed
injuries and
sequelae,
and their connection with police
conduct.
[16]
For the rest the defendant denied that his officers had not acted
procedurally
or with due regard to accepted and standard arrest and
detention protocols, or that they had acted unlawfully or
unconstitutionally,
or with malice, or outside of the bounds of
rationality. Rather, so the Minister pleaded, his officers, more
especially the “relevant
peace officer” (not named in his
plea despite it being common cause that Sergeant Oliver amongst them
accepted responsibility
for the arrest), had acted in line with the
provisions of section 205 (3) of the Constitution.
[17]
The
police’s holding of the plaintiff after her arrest was
justified on the generic basis that her detention and or deprivation

of liberty “until her release on bail” (
sic
)
[3]
was lawful in terms of section 50 (1), as read with section 39 (3) of
the CPA.
[4]
The
minutiae
of her claim that the police’s conduct toward her was
highhanded and her continued detention malicious for the specific
reasons outlined in paragraph 10 above, were not specifically replied
to in the defendant’s plea. The plaintiff’s further

claims that she had been verbally abused and threatened by the
Station Commander; that her reasonable requests to receive medical

attention or be provided with her allergy medication were ignored
during her detention at the police station; and that she never
even
formally appeared in court before a magistrate on the purported
charges before being released from police custody shortly
after 13h00
on 9 December 2016, were laconically and baldly denied.
The
evidence:
[18]
At the
trial, which ensued almost four years after the incident, the
plaintiff commenced leading evidence. Broadly she testified
regarding
her unfortunate experience at the hands of Sergeant Oliver and the
implicated members of the Service, firstly in front
of her home where
the impugned arrest took place (without just cause and in her
perception with malice) and where she was assaulted
in the manner and
under the peculiar circumstances pleaded by her; and secondly at the
Humewood Police Station where she was detained,
according to her
under hugely offending conditions. According to her further testimony
all of this culminated in her informal release
from police custody at
the magistrate’s court on 9 December 2016 around 13h00.
[5]
She also testified as to the significant enduring trauma suffered by
her as a result of the incident and the deleterious impact
to her
generally by the whole debacle. Two relatives (a male and female
cousin respectively who lived with her) also testified
on her behalf
as to the events which went down at the scene of the arrest and as to
their recall of their interaction with the
Police at the Humewood
Police Station after her arrest and in the course of interposing
themselves on her behalf. They also provided
personal input as to the
profound effect that the incident had on the plaintiff.
[19]
The defendant called the arresting officer, Sergeant Oliver (who on
everyone’s
account made a very poor impression as a witness)
and one Sergeant Baadjies who had been involved in charging the
plaintiff on
the evening of her arrest at the Humewood Police Station
and taking her formal warning statement. It appeared to be common
cause
that he had treated the plaintiff amiably and fairly in respect
of his brief interaction with her that night even to the extent
of
making a trip to her home to fetch stuff she needed.
[20]
The defendant surprisingly closed his case without calling several
witnesses
who were ostensibly available, and necessary both to give
flesh to the elaborate premise for his defence that was foreshadowed
by the cross-examination of the plaintiff’s witnesses and to
countervail the plaintiff’s testimony, leaving his case

somewhat bare and, as the trial court correctly recognized in its
judgement, vitiating in respect of vital aspects of her case
that
called for an answer.
[21]
Certain documents were handed in as exhibits by agreement on the
customary
basis without any admissions as to their correctness. This
included two medical reports by general medical practitioners who had

examined the plaintiff on 9 and 12 December 2016 respectively. Both
the police docket under which the plaintiff was charged as
well as
the second one opened pursuant to which she had indubitably laid her
own charge of assault against the police soon after
her release from
their custody on 9 December 2016, also served before the trial court.
[22]
A joint minute was procured in respect of the professional input of
two clinical
psychologists, one who had privately consulted with the
plaintiff shortly after the incident, Ms. Mochela, and the second who
examined
her closer to the trial at the behest of the defendant, Mr.
De Jager. The latter minute also referenced and echoed the earlier
medical reports concerning the injuries and emotional trauma suffered
by the plaintiff closer to the date of the incident.
[23]
The crux of the clinical psychologists’ agreement is recorded
thus:
“
The
psychologists agree that Ms Heleni was involved in the incident on
07/12/2016. The incident affected her psychologically. After

consideration and discussion, both psychologists agree that Ms
Heleni's condition does not fulfill the criteria for a Posttraumatic

Stress Disorder, but constitutes an Adjustment Disorder with Mixed
Anxiety and Depressed mood. Both agree that Ms Helen's condition

ameliorated over time.”
[24]
The psychologists further agreed in principle that the plaintiff
should receive
ten sessions of psychotherapy given the fact that her
symptoms were still present and because she had received only
intermittent
and limited psychotherapy to ameliorate the impact of
the incident to her, and that she would benefit from three sessions
with
a psychiatrist to assess the need for pharmacotherapy.
The
trial court’s judgment:
[25]
After a long trial, the court found, firstly in respect of claim 2,
that the
defendant, relying on the sole evidence of Sergeant Oliver
(which it found to be contradictory and unreliable), had failed to
discharge
the onus on him to “prove the existence of the
grounds in justification of the infraction,” meaning, in the
latter
respect, the plaintiff’s arrest without a warrant. (This
was ostensibly all the court focused on, forgetting that the
plaintiff’s
primary claim was for malicious arrest.) Further
and in any event, the trial court purported to determine the issue of
whether
the defendant had made out a case justifying the arrest of
the plaintiff against the basis provided for in section 40 (1)(j) of

the CPA, whereas the defendant had instead expressly relied on the
provisions of subsection (1)(a) in pleading justification for
the
arrest.
[26]
Regarding the supposed criminal misconduct on the plaintiff’s
part that
had purportedly conduced to her arrest, the trial court
discounted Sergeant Oliver’s version. It did so however, not by
holding
it up to a comparison with the plaintiff’s version and
resolving the disputed issues by a consideration of her and
Sergeant’s
Oliver’s respective credibility and
reliability against the inherent probabilities and improbabilities of
the matter, but
instead with reference solely to contradictions
between her testimony and Sergeant Baadjies’; discrepancies
between her oral
testimony and arrest affidavit and between her and
her colleagues’ police statements; a surprise admission by her
that she
had pepper-sprayed the plaintiff herself (this
co-incidentally in itself constituting an assault on the plaintiff);
and the “lack
of corroboration” to be found for her
version in the testimony of her implicated colleagues (according to
the narratives
reflected in their police statements) and “Robert”
of I-Patrol.
[27]
The trial court concluded additionally, correctly so in my view
albeit for
a different reason, that no proper discretion had been
exercised by Sergeant Oliver in occasioning either the arrest or
detention
of the plaintiff and that there had simply been no just
cause to detain her. It further accepted, ostensibly based on a
concession
made by Sergeant Baadjies in this respect, that there had
been no reason why the plaintiff could not have been released on bail

from the police station.
[28]
It determined that her detention too was unlawful following
inexorably upon
her unlawful arrest and awarded damages in the sum of
R180 000.00 for claim 2.
[29]
Interest at the legal rate of 7% per annum (evidently applicable at
the time
of judgment) was awarded as prayed for in the plaintiff’s
particulars of claim calculated from date of demand to date of
payment, and costs on the scale of attorney and client as had also
been prayed for and specifically motivated in argument, although
no
reasons were furnished in the court’s judgment for either
ancillary order made.
[30]
Having regard to the plaintiff’s complaint that she had been
assaulted
by Sergeant Oliver, ostensibly isolating, and ring-fencing
the evidence in respect of this claim, the trial court embarked in
similar
fashion on an exercise of criticism of her evidence in a
vacuum, concluding ultimately that there were “material
contradictions
in her own evidence and the evidence of (her)
witnesses” and dismissed this claim ostensibly for such reason.
[31]
Despite by implication having preferred the plaintiff’s version
concerning
the scenario that had played itself out before her arrest
(concerning the very same interlude during which the assault was said

to have been perpetrated), the court mechanically ticked off ten
examples of “contradictions” by the plaintiff which
it
determined were material and damning of her case in respect of the
assault claim.
[32]
Mostly these relate to discrepancies between her testimony and that
of her
two cousins who testified on her behalf which, as I indicate
below, given the fluidity of the scene; the different perspectives

from which each of the witnesses viewed the incident; and the long
length of time since the event had passed, I regard as non-material.

Another example concerns an allegation made in her particulars of
claim that she was pointed with a firearm which she had disavowed
in
her oral testimony. Even though this averment was withdrawn during
the conduct of the trial on the basis that its inclusion
had been the
result of an unfortunate copy-and-paste mistake (for which her
attorney took full responsibility), the court exemplified
the
so-called inconsistency as one seriously impugning her credibility.
[33]
Another
concerns a difference in the injuries that the two doctors recorded
when examining her on 9 and 12 December 2016 respectively.
The first
doctor, Dr. van der Merwe, according to the judgment, only recorded a
scratch mark on her right foot,
[6]
whereas Dr. Koester, upon examining her three days later, made a note
on a formal J88 medical report utilized in the criminal prosecution

of her claim of assault, that she had sustained injuries to her back,
arms and legs.
[7]
Apart from
concluding that “these injuries are inconsistent with the
evidence of the Plaintiff,” the clarification
given by the
plaintiff in her testimony regarding her and her family’s
concern that they were unhappy with the service given
by the first
doctor was not referenced by the trial court in its judgment at all.
[34]
The final nail in the coffin of the plaintiff’s credibility
according
to the trial court concerned an allegation in her
particulars of claim that she suffered from depression
inter alia
and had consulted with clinical psychologist Ms. Mochela to help her
cope with the effects of the incident who had diagnosed her
with
“post-traumatic stress disorder”. The court noted by
implication in this respect that this allegation was untrue
since
“both experts met and filed a joint minute that the Plaintiff
did not at any stage suffer from Post Traumatic Stress
Disorder.”
A proper review of the joint minute does not however support such a
conclusion.
[35]
In respect of the arrest and detention claim, the court concluded
that: “Due
to the contradictory, unreliable evidence of Oliver
the Court is of the opinion that the Defence did not prove the
existence of
the grounds in justification of the infraction.”
and, in respect of issue of the assault claim, that: “In the
light
of the abovementioned material contradictions the Court is of
the opinion that the Plaintiff did not satisfy the Court on a
preponderance
of probabilities that her version is true and accurate
and therefore acceptable. Claim one of the plaintiff is therefore
dismissed.”
[36]
No separate costs order was made even though, as the defendant
contended at
the appeal, he had successfully defeated the assault
claim and should have been awarded his costs.
The
court’s flawed approach in assessing the evidence:
[37]
Given the unconventional compartmentalized method applied by the
trial court
in evaluating the evidence, it is no wonder that the
chief ground of the main appeal by the defendant is that it failed to
adopt
the correct approach in assessing the credibility of the
witnesses and in resolving the mutually destructive versions that
were
before it. It also evidently failed to appreciate the nuances of
the plaintiff’s second claim as primarily entailing a malicious

arrest and detention.
[38]
As a
starting point, to succeed, the litigant who bears the onus of proof
in a civil trial should satisfy the court on a preponderance
of
probabilities that his or her version is true and accurate and
therefore is acceptable, and that the other version advanced
by the
defendant is false or mistaken and falls to be rejected. In deciding
whether the evidence is true or not, the court will
weigh up and test
the plaintiff’s allegations against the general
probabilities.
[8]
[39]
In
National
Employers' General Insurance Co Ltd v Jagers,
[9]
the
court set out the correct approach to be adopted in analysing and
assessing evidence in a civil case as follows:
"It
seems to me, with respect, that in any civil case, as in any criminal
case, the
onus
can ordinarily only be discharged by adducing
credible evidence to support the case of the party on whom the onus
rests. In a civil
case the
onus
is obviously not as heavy as
it is in a criminal case, but nevertheless where the onus rests on
the plaintiff as in the present
case, and where there are two
mutually destructive stories, he can only succeed if he satisfies the
Court on a preponderance of
probabilities that his version is true
and accurate and therefore acceptable, and that the other version
advanced by the defendant
is therefore false or mistaken and falls to
be rejected. In deciding whether that evidence is true or not the
Court will weigh
up and test the plaintiff's allegations against the
general probabilities. The estimate of the credibility of a witness
will therefore
be inextricably bound up with a consideration
of the probabilities of the case and, if the balance of probabilities
favours
the plaintiff, then the Court will accept his version as
being probably true. If, however the probabilities are evenly
balanced
in the sense that they do not favour the plaintiff's case
any more than they do the defendant's, the plaintiff can only succeed

if the Court nevertheless believes him and is satisfied that his
evidence is true and that the defendant's version is false."
This
view seems to me to be in general accordance with the views expressed
by COETZEE J in
Koster
Ko-operatiewe Landboumaatskappy Bpk v Suid­-Afrikaanse Spoorweë
en Hawens (supra)
[10]
and
African
Eagle Assurance
Co
Ltd
v Cainer (supra)
[11]
:
"I
would merely stress however that when in such circumstances one talks
about a plaintiff having discharged the
onus
which
rested upon him on a balance of probabilities that means
that he was telling the truth and that his version was
therefore
acceptable. It does not seem to me to be desirable for a Court
first to consider the question of the credibility
of the witnesses as
the trial Judge did in the present case, and then, having concluded
that enquiry, to consider the probabilities
of the case, as though
the two aspects constitute separate fields of enquiry. In fact, as I
have pointed out, it is only where a consideration
of the
probabilities fails to indicate where the truth probably lies, that
recourse is had to an estimate of relative credibility
apart from the
probabilities."”
[40]
In
Stellenbosch
Farmers’ Winery Group Ltd & Another v Martell & Cie SA
& Others
[12]
the Supreme Court of Appeal also observed what it fell to the trial
court to do in a civil matter when there are two irreconcilable

versions and so too on a number of peripheral areas of dispute which
it reckoned could have a bearing on the probabilities:
“
The
technique generally employed by courts in resolving factual disputes
of this nature may conveniently be summarised as follows.
To come to
a conclusion on the disputed issues a court must make findings on (a)
the credibility of the various factual witnesses;
(b) their
reliability; and (c) the probabilities. As to (a), the court’s
finding on the credibility of a particular witness
will depend on its
impression about the veracity of the witness. That in turn will
depend on a variety of subsidiary factors, not
necessarily in order
of importance, such as (i) the witness’s candour and demeanour
in the witness-box, (ii) his bias, latent
and blatant, (iii) internal
contradictions in his evidence, (iv) external contradictions with
what was pleaded or put on his behalf,
or with established fact or
with his own extracurial statements or actions, (v) the probability
or improbability of particular
aspects of his version, (vi) the
calibre and cogency of his performance compared to that of other
witnesses testifying about the
same incident or events. As to (b), a
witness’s reliability will depend, apart from the factors
mentioned under (a)(ii),
(iv) and (v) above, on (i) the opportunities
he had to experience or observe the event in question and (ii) the
quality, integrity
and independence of his recall thereof. As to (c),
this necessitates an analysis and evaluation of the probability or
improbability
of each party’s version on each of the disputed
issues. In the light of its assessment of (a), (b) and (c) the court
will
then, as a final step, determine whether the party burdened with
the onus of proof has succeeded in discharging it. The hard case,

which will doubtless be the rare one, occurs when a court’s
credibility findings compel it in one direction and its evaluation
of
the general probabilities in another. The more convincing the former,
the less convincing will be the latter. But when all factors
are
equipoised probabilities prevail.”
[13]
[41]
In this instance the trial court quite
evidently floundered in the manner in which it analyzed the evidence
and purported to resolve
the disputed issues. It made no reference
whatsoever to the customary approach or even that there were mutually
destructive versions
before it. It further said not a word about the
probabilities.
[42]
It
self-evidently compartmentalized the evidence within each claim
instead of having regard to a conspectus of all the evidence
in order
to get to a common baseline or to establish the more plausibly
accepted version by an analysis and evaluation of the probabilities

or improbabilities of each party’s version on each of the
dispute issues.
[14]
[43]
Indeed, it purported rather by some awkward
process to annihilate whichever of the parties’ versions in
respect of each claim
bore the most “contradictions”
without even assessing how and why those contradictions impacted
their respective credibility.
[44]
Although both parties sought to persuade this
court, for reasons unique to the position each were advancing, that
we should be weary
of interfering with the factual findings made by
the trial court because these depended upon the credibility of the
witnesses upon
which it had formed a view, in my opinion its findings
of fact and credibility, especially concerning the plaintiff, were
clearly
wrong and this court is therefore at liberty to interfere on
appeal.
What
was required to be established on the evidence:
[45]
It is apposite to begin with an expectation of
what the plaintiff had to prove in order to succeed. Firstly,
regarding the assault,
she had to establish the physical interference
(and verbal abuse) alleged, since this was denied. An established
interference would
be
prima facie
wrongful and implies an intention to injure even if committed during
the course of an arrest performed by a police officer pursuant
to the
exercise of a discretion to arrest. Although not part of his pleaded
case, it would have been for the defendant to allege
and prove a lack
of intention to injure and or justification for the physical
violation. For example, a concession made by Sergeant
Oliver that she
pepper-sprayed the plaintiff, dropped like a “hot potato”
during her testimony, had to be given a context
within the claimed
justification related in her evidence for doing so.
[46]
The plaintiff would also have had to prove that
she suffered the harm and patrimonial damages claimed as a result,
and the extent
of these. The experts were already in agreement as to
three things,
viz
,
that the incident had happened (which in itself corroborates the
plaintiff’s version that she suffered a traumatic event
whereas
the defendant denied any event as claimed by her); that the assault
or incident caused her damage; and the extent of these,
at least in
the sense of determining what treatment she required going forward,
the number of sessions and the unit price for her
required therapy
applicable at the time.
[47]
I
digress to point out that the joint minute had of necessity to be
read together with the experts’ respective reports to

understand their agreement in context. One point of particular
significance is that the experts conceded and made allowance for
the
fact that the plaintiff’s condition (which they accepted bore a
causal connection with the incident) had improved over
the course of
time and the professional diagnostic criterion for post-traumatic
stress disorder had also changed since then.
[15]
One only has to read Mr. De Jager’s report to notice that
despite the changes in clinical approach he was yet able to confirm,

using the current post traumatic stress disorder checklist and by
applying it to the plaintiff’s responses to rate the frequency

and intensity of her symptoms on a five point scale for the three
months in the immediate aftermath of the incident, that her score
for
that
period
was “69” and her score in the past month before the date
of her assessment, “58”. Both these tallies were
“above
the cut-off score of 38 for post-traumatic stress disorder”.
However, using the tools to measure the severity
of her symptoms, her
score of “16” was mild at most, thus rendering his
conclusion that the plaintiff ostensibly
at
the time of assessment
did not satisfy the criterion for the diagnosis of post-traumatic
stress disorder.
[16]
[48]
I mention
this to highlight the unfounded criticism of the plaintiff by the
trial court that she falsely projected her diagnosis
of
post-traumatic stress disorder in her particulars of claim as a show
of her supposed unreliability as a witness.
[17]
[49]
In respect of this issue, it mattered not in my
view what the plaintiff’s ultimate diagnosis was, but rather
that there was
in fact an incident that caused her harm in the realm
of psychology at all. That showing in itself supported the
plaintiff’s
case that she was subjected to an unprovoked
traumatic assault and mind-altering incident but detracted from the
defendant’s
countervailing version presented through the sole
testimony of Sergeant Oliver that she had interfered in the arrest of
Mr. Peter
and was the aggressor.
[50]
Regarding
claim 2, the plaintiff’s action for malicious arrest and
detention (analogous to malicious prosecution) lies
where the
defendant has intentionally, maliciously and without reasonable
and probable cause, instigated the arrest or detention
of the
plaintiff by the proper authorities. In this instance the police
officers implicated just so happened to be those “proper

authorities” who were responsible for putting the plaintiff
through the wringer, as it were, under the guise of an arrest.
[18]
[51]
A plaintiff must prove that the defendant:
(a) instigated the arrest; (b) acted without reasonable and
probable cause; and
(c) had
animus
iniuriandi
which includes
malice.
[52]
Malice in the sense of absence of an honest
belief coincides with want of reasonable and probable cause in the
subjective sense,
and will be inferred from the latter.
In cases where malice has been inferred
from want of reasonable and probable cause, there has been an absence
of an honest belief
in the guilt of the accused. Where absence of
reasonable and probable cause in the subjective sense is not relied
upon, want of
reasonable and probable cause in the objective
sense must be proved and, in addition, there must be malice in
the sense of
absence of purpose for which the law allowed the
arrest. Want of lawful purpose in the case of malicious arrest
means that
the defendant had some purpose other than that of bringing
the plaintiff to justice and having him or her convicted or having
judgment
given against him or her.
[53]
Absence of reasonable and probable cause means
either:
(a)
that subjectively the defendant had no
honest belief that the plaintiff had committed an unlawful act for
which he or she could
have been arrested; or
(b)
that objectively on the facts and the law as
known to the defendant at the time a reasonable person could not have
concluded that
the plaintiff had committed such unlawful act.
[54]
If neither element is proved,
the plaintiff
will not have shown absence of reasonable and probable cause and his
or her action will fail. Conversely, if either
element is proved the
defendant would have acted without reasonable and probable cause.
[55]
The
defendant, although denying malice or the absence of reasonable
probable cause admitted the arrest at least without a warrant.
The
court properly observed that the
onus
was on him to prove justification for the arrest on his version. But
the question whether the plaintiff had
prima
facie
committed an offence in the presence of Sergeant Oliver, this being
the pleaded basis for the defendant’s justification for
the
arrest,
[19]
speaks to the
corresponding element that the plaintiff was required to establish on
her pleaded case in respect of the claim of
malicious arrest, namely,
that there was no reasonable or probable cause for Sergeant Oliver to
have arrested her since she had
not committed any offence at all, nor
give her any reason to have arrested and detained her.
[56]
Sergeant Oliver claimed responsibility for arresting the plaintiff
although
professing to have done so under the guise of the maintained
justification for it.
[57]
The
plaintiff therefore at least established the first essential
ingredient of her cause of action which is that the defendant,
or at
least his employee(s), procured or instigated the arrest using the
machinery of the law at their ready disposal.
[20]
(As an aside, it appears that the false statements deposed to by her
and Sergeant Van Reenen in the docket also formed the basis
for
Sergeant Baadjies to have concluded that there was reasonable cause
to charge her and Mr. Peter on the night of their arrest.)
[58]
Further, if one accepts the plaintiff’s version as to what
happened on
the street in front of her house that morning (to the
exclusion of the defendant’s) it is not hard to find
additionally that
both further elements of malice and the absence of
reasonable and probable cause would have been equally established by
the evidence.
In that event Sergeant Oliver could subjectively have
had no honest belief that the plaintiff had committed an unlawful act
for
which she could have been arrested which would be grist to the
mill of the plaintiff’s case that Sergeant Oliver and Constable

Van Reenen, acting in conjunction, made up a false charge merely to
cover her outrageous conduct. Even applying an objective test,
on the
facts and the law as known to Sergeant Oliver at the time, on an
acceptance that the plaintiff’s version is the more
plausible
account, a reasonable person could not have concluded that the
defendant had committed the unlawful act for which the
plaintiff was
purportedly arrested, charged, and subsequently held in police
custody.
[59]
The assault
charge against the plaintiff was co-incidentally hardly given any
flesh in Sergeant Oliver’s evidence, or prominence
in her
police statement. Indeed, she is not even recorded as a complainant
in the docket ostensibly opened as a formal recordal
of her
supposedly being a victim of assault at the hands of the
plaintiff.
[21]
[60]
As for the plaintiff’s alleged interference with the duties of
the police
officers,
section 67
(1)(a) of the
South African Police
Service Act, No. 68 of 1995
, defines when such interference
constitutes actionable criminal conduct. In this respect it provides
that any person who: “…
(a) resists or wilfully
hinders or obstructs a member in the exercise of his or her powers or
the performance of his or her duties
or functions or, in the exercise
of his or her powers or the performance of his or her duties or
functions by a member wilfully
interferes with such member or his or
her uniform or equipment or any part thereof …
”
shall be guilty of an offence and liable on conviction to a fine or
imprisonment for a period not exceeding twelve months.
[61]
Assuming
such conduct to have been
prima
facie
observed by Sergeant Oliver before arresting the plaintiff it might
have served to have objectively justified the plaintiff’s

arrest and for having charged her for such an offence; and for having
kept her in police custody as a continuing justification
thereafter
flowing from her supposed criminal conduct. However, the misdemeanour
falling within that description that the defendant
says the plaintiff
purportedly made herself guilty of concerned her supposed attempt to
get in the way of Mr. Peter being arrested
which, so the plaintiff
said, never happened.
[22]
[62]
As I will demonstrate below this is an issue that the trial court
correctly
disposed of in favour of the plaintiff.
A
review of the evidence:
The
Plaintiff’s testimony:
[63]
The
plaintiff’s evidence was that shortly after returning home that
morning after dropping her grandmother off at the taxi
rank, they
were drawn to a noisy fracas outside. Upon exiting from her house at
no. 26 Campbell Street, she noticed residents in
the street and two
police officers. It is common cause that the officers involved at
this point were Sergeant Oliver and her partner,
Constable Ashley Van
Reenen. She noticed Constable Van Reenen assaulting an already
handcuffed man lying on the ground who later
became known to her as
Mr. Peter.
[23]
He was later
joined by Sergeant Oliver who came to where Mr. Peter was lying on
the ground and stamped on him with her booted foot.
Mr. Peter was
crying out for help.
[64]
The
residents were hit up about the incident and her and her “brother”
(Luyanda Majola)
[24]
and his
girlfriend at the time (Ms. Vuyo Ntshingana), were screaming for them
to stop and not hit him further. They were agitating
for the officers
to rather put Mr. Peter in the van and get on with it, so to speak.
[65]
The police
officers instead became embroiled in exchanging words with the
residents (including the plaintiff) in what she described
as a “crazy
commotion”. Whilst initially observing all of this from their
home at no 26 Campbell Street, the plaintiff
latterly noticed her
brother approaching from the opposite direction coming from up the
road. She assumed that he must have disappeared
at some stage during
the uproar as originally they had all been observing the incident
from their stoep. At this stage Mr. Peter
was by now in the police
van and the residents had been agitating for the police to “just
go” now. She noticed her
brother and Constable Van Reenen
exchanging words and having a face-off with each other. She then
observed the officer hitting
him with a fist on his chest, well at
least this is how she perceived it from her perspective.
[25]
[66]
She advanced to where they were and instinctively interposed herself
between
them as if to protect him. She was angry. She was joined by
his girlfriend who together with her created a barrier to ward off
any further attack on him. She enquired indignantly from Constable
Van Reenen why he was hitting him. She did not actually give
him a
chance to respond and challenged that if her brother did not press
charges against him for doing so, that she would do so
herself. He
asked who she thought she was.
[67]
During this heated and angry verbal exchange (at least for her part)
she denied
any physical altercation with him or that she had
supposedly grabbed hold of any police officer’s shirt. The
commotion continued
and she momentarily lost sight of her brother
whilst the brawl moved to in front of 28 Campbell Street. Whilst
still so engaged,
Sergeant Oliver came towards her aggressively
pointing and shouting at her in Afrikaans. The witnesses asked her to
speak in English
so that she could understand her. Sergeant Oliver
grabbed her and shoved her against the wall. Ms. Ntshingana screamed
in Sergeant
Oliver’s face to desist, warning her that she was
not permitted to touch the plaintiff. She noticed at this time in the
background
that another police van had arrived carrying two white
male officers (Warrant Officer Geoffrey McIntyre and Captain Verdun
Van
Niekerk), bringing the police contingent to four.
[68]
Sergeant Oliver was at this time pointing in Ms. Ntshingana’s
face. The
plaintiff urged her to stop but she instead turned her
attention to her and stamped hard on her foot, keeping her booted
foot down
on it to maintain a pressure, and causing it to bleed. The
plaintiff screamed that Sergeant Oliver was hurting her. She noticed

that the two additional officers who had arrived on the scene were
just standing there watching, evidently confused. When the pain

became unbearable she reached out her hand to “pat”
Sergeant Oliver on her shoulder to get her attention, intimating
to
her verbally that she was hurting her and that she should release her
foot.
[69]
At this point one of the two white police officers grabbed her and
dragged
her down to the ground remonstrating with her that she was
not allowed to touch a police officer. In falling down to the ground

from the height of the neighbour’s stoep to where the brawl had
in the meantime migrated, she sustained a cut on her finger.
She
further sustained another injury to her foot by being dragged on the
ground to the police van by the last two officers who
had arrived on
the scene.
[70]
She resisted their efforts to be placed in the van with Mr. Peter who
was an
absolute stranger to her, reconciling herself to the fact that
she was now being arrested. It was during this struggle that “Robert”

from I-Patrol appeared on the scene and came to pepper-spray her.
This ended her resistance to the whole debacle.
[71]
She was clear that she was conveyed to the Humewood Police Station in
a van
marked “Humewood 13” in the company of Mr. Peter.
This was in itself anxiety provoking for her as she surmised that

anything could have happened to her in the back of the van together
with a male stranger.
[72]
Regarding process, she averred that she was not informed of any
reason for
her arrest or read her rights at the scene of arrest. At
the police station and whilst in the van still, a senior white police
officer arrived (it was common cause that this was Lieutenant-Colonel
Houwlands), who spoke in Afrikaans to the two white male members.

Sergeant Oliver opened a window at the back of the van and announced:
“This is my boss”. She added: “Tell him
you said
you were going to report me. I know you think you have got rights,
but I can limit them”. Her demeanour towards
the plaintiff was
one of rudeness. The plaintiff immediately felt powerless and angry
not only by what Sergeant Oliver had conveyed
to her, but also
because the police officers were clearly discussing her in her
presence in a language that she could not understand.
She felt like a
“nobody” in her own country and reflected that it was a
brutal and unnecessary arrest.
[73]
When the van door was opened, Lieutenant-Colonel Houwlands continued
to engage
with her in Afrikaans. When she requested him to speak
English he said “Ek sal jou …” He did not finish
his
sentence, but raised his hand as if to indicate that he might
strike her. She replied, “Try it”, to which he responded

“You think you are clever. I will punish you. You will stay
here for a week.”
[74]
She was in pain from her injuries and the pepper-spray had taken her
existing
allergies “to another level”, as she described
it. Her back was hurting. Her chest ached from the hard shove and
both
her feet were paining. Her open wounds to them were bleeding.
[75]
She was not immediately read her rights at the Humewood Police
Station. She
was however prevailed upon to sign a SAP 14 notice, this
two hours after her arrest, without being afforded an opportunity to
first
read the document. She was taken to the holding cells in the
meantime. Her request to make a phone call was deferred on the
premise
that she needed to “wait” for the persons who had
brought her there to process her arrest.
[76]
When signing the SAP 14 notice almost two hours later Constable Van
Reenen,
who was in attendance, suggested to her that her brother was
supposed to be the one there, not her. He remarked that her brother

was “lucky’ because she had protected him.
[77]
In the evening at 19h32 she was formally charged by Sergeant Baadjies
who she
claimed told her that she would appear in court on the
morning succeeding the day of her arrest. She pointed out her
injuries to
him, most notably those on each foot, which he
acknowledged in the template forming the prelude to her warning
statement. He further
recorded her description of how these wounds
had been occasioned to her, namely by Sergeant Oliver stamping her on
her foot and
in the course of her being arrested. She denied that she
was “free of injuries” as had been recorded by Constable
Van
Reenen in the station’s official records shown to her. She
added that the injuries to her feet would have been abundantly

visible to anyone as she was barefoot in the holding cells.
[78]
According to her she was not informed by Sergeant Baadjies of her
right to
apply to be released on bail. If she had, so she submitted,
her family would immediately have been able to secure her release
from
police custody. She acknowledged however that she had not really
questioned him about anything as the whole process was “foreign”

to her. Despite Sergeant Baadjies’ intimation to her that she
would appear in court the following morning, what happened
instead is
that she was awoken early the next day only to have photographs taken
but returned to the cells thereafter to endure
a further anxious
wait. During this time, she encountered Lieutenant-Colonel Houwlands
again who knocked, saw it was her and remarked
“Oh, it’s
you”, whereupon she was left to her further seclusion.
[79]
She confirmed that Sergeant Baadjies had assisted her by going to her
house
at her request to fetch clothing and medication because she was
really cold and still barefoot. He returned with a bag containing
her
red coat, a pair of slippers, KFC and water. No medication arrived,
but he offered the explanation to her that her sisters
had not been
able to find her medicine at home.
[80]
On the
Friday morning, after first being subjected to the taking of a DNA
sample, the plaintiff was transported by van to the magistrate’s

court where she was detained in a holding cell with four other women.
Her name was not called to appear. The magistrate, noticing
her
presence there, enquired who she was and instructed officials to go
and look for her docket. After a while the female officer
instructed
to make the enquiries returned and said something to the magistrate.
The latter then informed her that she could go
home.
[26]
[81]
After her release she consulted Dr. van der Merwe and a few days
later Dr.
Koester on the advice of her grandmother who perceived that
she was not getting any better. The latter examined her more
comprehensively.
She laid a criminal charge of assault against
Sergeant Oliver on the same day of her release. She lamented even on
the day of the
trial in the court
a quo
that she had heard
absolutely nothing from the Humewood Police Station to that day, more
than three and a half years after lodging
her complaint.
[82]
She also
related that on the same date she lodged her J88 report, she had been
warned by one “Sharky”, a resident of
Richmond Hill, to
drop the case. She relocated from Campbell Street soon thereafter
because she feared for her life.
[27]
[83]
Regarding the report of the psychologist, Mr. de Jager, she was
careful to
point out which aspects of the collateral provided to him
by her ex-partner and father of her child (deceased by the time of
trial)
regarding her response to the traumatic incident were correct
and which not, even owning up to characterizations of her behaviour

that were by their very nature against her interests to admit.
[84]
So, for example, she did not hesitate to own up to the fact that she
had anger
outbursts and that on occasions she had been emotionally
and physically abusive towards him, and once broke a window.
[85]
According to her she was never given an opportunity by Mr. de Jager
himself
to respond to these negative assertions made against her by
her ex-partner which provided fertile ground for aggressive cross
examination
of her during the trial as if her late ex-partner had
himself testified. She pointed out parts of his recorded narrative in
the
report that did not accord with her true version of the events
given at the trial, which she noted to be incorrect.
[86]
Under cross
examination Mr. Madokwe
[28]
similarly held up accounts recorded by the plaintiff’s
psychologist in her report, as being “gospel” in an
attempt
to show the plaintiff up an unreliable witness, such as for
example the vignette concerning the perceived assault on her brother

that had prompted her to leave the precincts of her home to interpose
herself on his behalf.
[29]
The
plaintiff moted in this respect that she had been extremely
traumatised still when she consulted with Ms. Mochela. She added
that
she was not responsible for the latter’s summary neither had
she read what the psychologist had recorded in her professional

report with a view to vouching for its correctness concerning the
finer details of the background recorded by her.
[30]
The
evidence of Mr. Majola:
[87]
The plaintiff’s cousins, Mr. Majola and Ms. Peter, in essence
confirmed
the plaintiff’s account of the events outside in the
street of the day in question most particularly that she had not
interfered
in the arrest of Mr. Peter neither had she assaulted
Sergeant Oliver or given them any reasonable or probable cause to
have arrested
and detained her.
[88]
Mr. Majola related his own involvement and confirmed his plea to the
police
at the scene to put Mr. Peter in the van since he had already
been handcuffed and was not resisting arrest yet the police were
kicking him whilst he was down on the ground. The male officer
(Constable Van Reenen) was hostile to him, urged him to back off
and
pushed him with his hand near his chest. He then became aware of the
plaintiff’s presence a short distance behind him.
She was
screaming at Constable Van Reenen and questioning his right to have
gotten physical with him.
[89]
As for the
plaintiff interposing herself on behalf of Mr. Peter, she simply
asked that they put him in the van because the children
were
watching.
[31]
Right after the
plaintiff told Constable Van Reenen off about pushing him, he noticed
a scuffle behind him involving the plaintiff.
He saw her falling
while she was with Sergeant Oliver. His girlfriend, Vuyo Ntshingana,
was also screaming at the officer and their
sister, Ms. Peter, at the
time was recording what was happening on her cell phone.
[90]
He noticed when the plaintiff fell that she had hit her knee. She got
up and
wanted to assault Sergeant Oliver but they stopped her. She
was then dragged to the van by Sergeant Oliver, assisted by Constable

Van Reenen. She was held on each side by a police officer and was
kicking and screaming. Another van arrived with two white officers,

which brought the tally of vehicles on the scene to three including
“Robert’s” from I-Patrol.
[91]
Roberts came up to them while they were trying to put the plaintiff
in the
van. He approached with pepper-spray when close to the van and
sprayed it in the plaintiff’s face. He backed off from coming

to her defence ultimately upon the advice of his girlfriend, although
he had tried to grab the plaintiff’s hand at some point
to show
support for her. She was screaming and in pain.
[92]
He did not himself witness the shoving or stomping
of the plaintiff. He only saw when she fell and was taken to the van
afterwards.
After she had been put in the van with Mr. Peter (to
which she objected) he asked Sergeant Oliver for what reason they
were arresting
her, to which Constable Van Reenen responded they
would find a reason or make it up. As far as he could recall she was
not informed
of any reason for her arrest or read her rights. He
acknowledged however that it would have been difficult for any
officer to have
informed her of her rights at the time, given the
resistance she had put up to the arrest.
[93]
When the plaintiff was removed from the scene he
had fortuitously noticed that the van in which she was taken away
bore the insignia
of the Humewood Police station which is where he,
his girlfriend, and sister (Ms. Peter), followed immediately
afterwards on foot.
[94]
Upon their arrival at the police station his
family and girlfriend engaged with
Lieutenant-Colonel
Houwlands
who branded the plaintiff as
exceptionally rude and violent. When he chuckled at this unfair
depiction of his sister,
Lieutenant-Colonel Houwlands
put
him out of his office. Whilst discounting that his sister was capable
of violence, he however acknowledged that she may have
acted out of
character at the scene, given that she had been in pain.
[95]
His girlfriend and sister were also given short
shrift by
Lieutenant-Colonel Houwlands
, but
he could not say why. He called the plaintiff’s parents who
were concerned and intimated that they should arrange for
her bail if
they could. His family were however not permitted to see the
plaintiff who the officers at the charge office referenced
as “the
rude girl”. They were further denied the opportunity to bring
her any food or medication. He had learned from
the plaintiff’s
father that she would appear in court the next day and went there to
await her arrival, but to no avail.
She was instead released on the
Friday morning from the side door of the magistrates court. When he
observed the plaintiff, her
arms were folded as if she were cold, her
eyes were swollen and red, she was limping, and was quiet and
withdrawn. Once at home
she mostly lay on the bed and kept to
herself.
[96]
He denied under cross examination the defendant’s
version put to him that the plaintiff had interfered with police
duties
by trying to pull Mr. Peter out of the van; or that she had
persisted in supposedly hindering the police after being warned to
step back; or that as a further result of her supposed interference
Mr. Peter had succeeded in getting to get back to the ground
from out
of the van as he was being loaded.
Ms.
Aganathi Peter’s evidence:
[97]
Ms. Aganathi Peter (no relation whatsoever to Mr. Peter), the
plaintiff’s “sister,” also testified on her behalf.

She had not witnessed any interaction between Mr. Majola and
Constable Van Reenen, most notably because at a certain stage she
had
gone indoors to get her cell phone to record the unfortunate incident
concerning Mr. Peter. She too stated that he had been
beaten up on by
both Sergeant Oliver and Constable Van Reenen and that he was
screaming and handcuffed during his ordeal although
her recall was
that his hands had been bound up with cable ties instead. She too
confirmed the scene as “very chaotic”
and characterised
the onlookers as being upset about the officers’ handling of
the situation. (As an aside this much was
common cause, the police
accepting that they had been accused at the scene of “police
brutality.”) Her family was not
invested especially, except to
join in the call for the police to not mistreat Mr. Peter. According
to her the latter did not resist
being arrested and had been loaded
up in the van by the time she returned to the scene with her cell
phone.
[98]
When she came back from her home, she observed the
shoving of the plaintiff against the wall and the stomping on her
foot
by Sergeant Oliver. So too, she observed how the plaintiff had
patted Sergeant Oliver on her shoulder and complained to her that
she
was hurting her. She saw how in response Sergeant Oliver grabbed her
sister and pulled her down to the ground. Sergeant Oliver
was joined
by a second officer who assisted her in subduing the plaintiff who
put up a resistance to being pulled along by them
to the van. This
rendered the scene even more chaotic in her view and she now too
involved herself by demanding to know why they
were arresting her.
The two white male officers who had latterly come on the scene also
joined in in “dragging” the
plaintiff to the van where
she was placed together with Mr. Peter. Before the culmination of it
all “Robert” from I-
Patrol arrived in his vehicle and
pepper sprayed the plaintiff in her face. The plaintiff relented
finally. She was coughing.
[99]
She denied that the plaintiff had assaulted Sergeant Oliver
although she conceded that she had “patted” her on her
shoulder
to cause her to remove her boot from off her bare foot. She
also did not hesitate to concede the plaintiff’s anger that had

been quite palpable to all in her view.
[100]
Sergeant Oliver informed her in response to her question what
she was arresting the plaintiff for, that she would make something

up. She did not observe the plaintiff being informed of her
constitutional rights in her presence at all.
[101]
Immediately the police departed from the scene they proceeded
directly on foot to the Humewood police station. It took them about

twenty minutes to get there. Having asked at the front desk about the
plaintiff she, together with her brother and his girlfriend,

including Mr. Peter’s girlfriend, were taken upstairs to see
Lieutenant-Colonel Houwlands. Upon their arrival there her brother

was asked to step out after annoying the officer about something.
Evidently Lieutenant-Colonel Houwlands had already been apprized
of
the situation regarding the plaintiff and remarked that she was the
talk of the station. He stated that he had seen her and
that she was
an angry person. He did not entertain any questions about her
situation and asked them to leave his office. No discussion
was had
with him about any allegations of assault at all.
[102]
They were assisted at the front desk by a kind officer who
even drove them home after relating to him that they had come to the
station on foot. Notwithstanding her concern for the plaintiff
especially since she had been pepper sprayed, he yet refused them

permission to see her. He did however receive a pair of sandals she
had brought from home for the plaintiff since she had left
home
barefoot. He advised her that the plaintiff would appear in court the
following day although this did not happen.
[103]
After leaving the police station she
related that she had ended up at the house of “Sharky” at
the instance of her aunt
(the plaintiff’s mother) who had
suggested that she should find out from him if he knew an attorney
who could assist the
family to apply for bail for her sister.
Serendipitously upon arriving there she happened to encounter
Sergeant Oliver talking
to him in his bedroom whilst on the phone to
her aunt. She claims that she gave her phone to Sergeant Oliver to
speak with her
aunt and that she walked off with her cell phone to
have a conversation with her.
[104]
She returned to the station twice more,
the first time in the company of her neighbour, “Aunty”
Barbara, to leave some
food for the plaintiff and to establish when
she would appear in court, and the second on the Thursday to enquire
why the plaintiff
had not in fact appeared in court that morning as
they had been informed she would. On the last occasion she was told
that the
plaintiff would appear on the Friday morning instead, but
she was not given any reason for the change in plan. On neither of
these
two further occasions was she permitted to see the plaintiff.
[105]
On the Friday morning at court the
plaintiff’s name was still not on the list of persons due to
appear in court, but she emerged
together with Mr. Peter free to go
without any formal appearance before the magistrate.
[106]
The plaintiff was limping, her foot was
swollen, she looked depressed and was smelling foul. The went home,
she took a shower and
then left in the company of their grandmother
to visit a doctor. When she returned, she drank her pills and kept
herself locked
up in her bedroom. She was in an emotional state for a
while, was slow to talk about her experience, and became more and
more reserved,
keeping to herself mostly. She seemed to get by by
taking pills to calm her and to help her sleep.
[107]
Before the incident the plaintiff had
been a bubbly, very loud, talkative person who loved cracking jokes.
It saddened her to see
such a different person. Although she could
say at the time of trial that the plaintiff was “much better”
by then,
she confirmed that her depressed state had endured for a
period of at least six months after the incident.
[108]
She emphatically denied under cross
examination that the plaintiff had interfered with the police when
they were trying to load
Mr. Peter in the van and that he had
supposedly managed to get out of the van again.
Sergeant
Oliver’s testimony:
[109]
Sergeant Oliver testified that on the day in question she was
doing crime prevention duties and patrols together with Constable Van

Reenen. In response to a request for “police assistance”
they proceeded to 23 Campbell Street to keep a presence while
a
caretaker at a commune changed locks there. Whilst overseeing the
latter’s work he came to report that he had been assaulted
by
two occupants, one being Mr. Peter, who also took off with the
caretaker’s toolbox. Constable Van Reenen chased after
him. She
followed. When Constable Van Reenen closed in on him Mr. Peter drew a
knife. They struggled to disarm Mr. Peter. (She
described him as
“crazy violent”.) Ultimately however with the assistance
of Constable Van Reenen they managed to get
Mr. Peter to the ground.
She prized open his hand to take the knife off him and promptly
returned to 23 Campbell Street to fetch
the police van.
[110]
She called for backup because she could see that they were not
going to manage to get Mr. Peter into the van or even to handcuff
him
because he was too aggressive. When she got back to where Constable
Van Reenen was waiting, Robert from I-Patrol had also stopped
by to
render assistance. Two other members arrived, Captain Van Niekerk and
Warrant Officer McIntyre. The five of them struggled
to get handcuffs
on Mr. Peter’s wrists and to get him into the van.
[111]
Whilst they were struggling they were approached by members of
the community on the street who accused them of police brutality.
[112]
She denied that either her or partner had assaulted Mr. Peter
at all. Instead, it was he who was violent, so she explained, to the

extent that when “Robert” came on the scene he actually
broke the top off of the latter’s pepper spray to render
it
unusable. (She offered this as a preface to her belated admission
that the plaintiff was not pepper-sprayed by “Robert,”

but rather by her herself.) Two people in the crowd, one of them
being the plaintiff and the other her brother, interfered whilst
the
five of them were trying to get Mr. Peter into the van. They did so
by pulling, grabbing on to the police, and preventing them
from
putting him inside of the van.
[113]
She claims that she had repeatedly asked the plaintiff to stop
interfering and stand out of the way on the pavement but that she
had
instead turned her attention onto her. She started shouting and
pointing at her in her face and pushing her in front of her
chest.
She carried on shouting and advancing to her.
[114]
Warrant Officer McIntyre tried to calm her down, but she
continued to advance. She warned her that she would place her under
arrest
because she was interfering in their duties but the plaintiff
came right up to the van and pulled on his shirt. The plaintiff and

her brother managed to pull Mr. Peter out of the van. The witness
ordered her to remove herself because she was interfering with
her
duties, failing which she would arrest her.
[115]
An argument ensued between the two of them. She asked her to
stop and after the plaintiff purportedly pushed her, she informed her

that she was going to place her under arrest. She had warned her that
she should not touch her or advance to her. Since she did
not listen
and continued to be a hindrance however, she decided to place her
under arrest.
[116]
The plaintiff did not want to get into the van and would not
move from the pavement where she had told her to stand. Warrant
Officer
McIntyre came to assist her by taking her and loading her
into the van. The plaintiff was not willing to cooperate and
resisted.
In order to obviate her resistance, she pepper-sprayed her.
She claims that the plaintiff was wild. She pulled and tore Warrant

Officer McIntyre’s shirt. Ultimately they managed to effect the
arrest and put her in the back of the van.
[117]
She denied that she had hit the plaintiff against the wall
pointing out that there was no wall nearby because they were standing

in the street near the police van. She denied that any of this had
happened on a neighbour’s stoep at no. 28 Campbell Street
or
that the plaintiff had fallen on her knees She also denied stepping
on her foot.
[118]
She insisted that she had read the plaintiff her rights and in
fact had pre-warned her that she was going to arrest her that if she

did not stop interfering. Once she had been placed inside the van,
she read the plaintiff her rights and explained to her again
why she
was arresting her, but she was shouting and not even listening to a
word she said.
[119]
She
volunteered that later at the police station her partner first
processed Mr. Peter’s arrest as if to justify why they
had
remained in the vehicle waiting outside of the police station for a
while before entering. (As an aside, the official police
records
reveal that the plaintiff signed her SAP14 only five minutes before
Mr. Peter did his. The time reflected on the notice
concerning him is
12h25 and on the one relating to her, 12h30. This leaves the rest of
the time from when the plaintiff was first
removed from Campbell
Street in the van at about 10h30 until her being processed at the
police station at 12h25 entirely unaccounted
for.)
[32]
[120]
She further volunteered that while they were waiting to
process her, Lieutenant-Colonel Houwlands came by and spoke to the
plaintiff
while she was still in the back of the van because she was
still screaming and shouting and very rude. Ultimately after waiting

in line outside the charge office to be permitted to enter after Mr.
Peter had been processed, she formally advised her that she
was
charging her for assault on police and interference in police duties,
this purportedly being the same offence she had informed
her of at
the scene of arrest. She denied having intimated to anyone at the
scene of arrest that she would make up a charge or
think of something
with which to charge the plaintiff.
[121]
She claims that she explained all the rights referenced in the
SAP 14 notice to the plaintiff before she signed the notice
whereafter
she booked her into the police cells. According to her,
the plaintiff declined to make a phone call when the opportunity was
presented
to her. Instead at the time she was shouting at her and
swearing.
[122]
She denied that Lieutenant-Colonel Houwlands had insulted or
threatened to assault the plaintiff in her presence. She further
broadly
denied that the cells were dirty or the bedding unclean or
that the plaintiff’s experience of her incarceration should
have
been dramatic for any reason in particular.
[123]
She coincidentally confirmed (with reference to the random
testimony of Ms. Aganathi Peter in this respect) that she had been in

the company of one “Sharkey” at his home later on that
same day after arresting the plaintiff when Ms. Peter called
at his
house. She was careful though to discredit him as a drug dealer and
explained that the reason for her presence there (in
fact together
with the same three officers involved in the plaintiff’s
arrest) is because they were searching a “drug
post.” She
denied that she had been chatting to “Sharkey” casually
in his room when Ms. Peter had arrived on
her version to ask him for
advice on legal representation to arrange bail for the plaintiff. She
further denied that she had taken
Ms. Peter’s cell phone
allegedly handed to her via “Sharkey” to hold a
conversation with the plaintiff’s
mother about her possible
release on bail.
[124]
Under cross examination she could not convincingly explain why
it had never been put to the plaintiff that she had herself pepper

sprayed her at the scene of arrest or why this had not been pleaded.
[125]
She acknowledged that she had also not revealed this important
detail in her police statement that she, rather than “Robert”

had pepper-sprayed the plaintiff, claiming that she assumed that when
she testified she would then have a chance to explain it.
She brushed
the oversight off as a trivial matter. (I digress to point out
however that it is hugely improbable that it could have
been a mere
oversight. Indeed, if she had disclosed this narrative to those
consulting with her on behalf of the defendant, the
plea would have
been framed very differently.)
[126]
She was adamant that when Warrant Officer McIntyre and Captain
Van Niekerk had arrived on the scene Mr. Peter had been pulled out
of
the van by the plaintiff at that point. She then corrected herself
and suggested that he was halfway inside the van holding
on the
outside with his back with his other half out of the van. He had not
yet been locked into the back, so she explained, and
in fact they
were still struggling with him when the back-up arrived.
[127]
Put to her that Warrant Officer McIntyre in his police
statement said that when he arrived on the scene Mr. Peter was
already in
the back of the patrol van and highlighting his disavowal
that he had rendered any assistance purportedly to have put him into
the van, all she could say was well that was his version and that was
how he experienced it. She was reluctant to concede that his

statement contradicted her own testimony in this regard.
[128]
It was pointed out to her that the premise had been put to the
plaintiff’s witnesses, well at least to Ms. Peter, that the

plaintiff had actually torn Warrant Officer McIntyre’s buttons
from his shirt, which was also contrary to what he said in
his police
statement.
[129]
Several contradictions between her oral testimony and her own
police statement were also pointed out to her. She suggested in this

respect that the court should prefer her testimony given at the
hearing four years later as representing the more reliable account

than what she had articulated in her police statement made on the
same day of the plaintiff’s arrest.
[130]
She could not give a proper account for the delay in charging
the plaintiff at the police station after having arrested her two
hours earlier. She was not even prepared to commit to how long it
would have taken the police to reach the police station by vehicle

from the scene of the plaintiff’s arrest, justifying Ms. Du
Toit’s criticism of her as an evasive witness.
[131]
She
acknowledged her realization at the police station that the plaintiff
was barefoot although she claims to have not seen any
injuries to her
feet or any blood on them. She did not wish to be drawn on the
suggestion that it was improbable that she would
not have noticed
these injuries given that the plaintiff was barefoot at the time. She
clarified that she had recorded that the
plaintiff was “free
from injuries” in her statement because she verily believed
that she did not have any injuries
neither did she in fact see
any.
[33]
She firmly denied
having caused the injuries to the plaintiff’s feet.
[132]
She denied that either she or Warrant Officer McIntyre had
dragged the plaintiff to the van. She says that they lifted her and
placed
her inside the van. According to her the plaintiff was taken
there ever kicking and resisting.
[133]
She rejected the plaintiff’s version that her family had
to make their own assumptions about where the police had removed her

to. She claimed for the first time under cross examination that she
had spoken to the girlfriend of Mr. Peter and told her that
he was
going to be detained at the Humewood Police Station. She could not
explain why this had not been put to the plaintiff witnesses.
[134]
She denied telling the plaintiff that she could limit her
rights and disagreed that there had been any negative interaction
with
Lieutenant-Colonel Houwlands or that he had threatened the
plaintiff with gestures as if he was going to hit her.
[135]
Further, and generally, she denied the premise of the
plaintiff’s case put to her and confirmed her insistence that
she had
arrested her because she had interfered with her arrest of
Mr. Peter. She could not explain why it does not appear from her
police
statement that she had warned the plaintiff repeatedly not to
interfere, failing which she would arrest her.
[136]
Asked under cross examination to account for why she had
pepper sprayed the plaintiff, she asserted that it was just for
minimal
force that she used it. (I have already noted above that in
the defendant’s plea
any assault at all
had been placed
firmly in contention.)
The
evidence of Sergeant Mananteau Baadjies:
[137]
Sergeant
Baadjies testified that he came on duty at the Humewood police
station on the evening of the 7
th
of December 2016. He was involved in charging the plaintiff. At the
time of doing so the only documentation available in the docket

(apart from the instructions written in the police the diary), were
the statements of the complainant and one of the police members.
[34]
Having read these, he made a decision to charge her and Mr. Peter and
was further satisfied that a
prima
facie
case
existed to do so.
[138]
He used the standard warning statement template. He read the
plaintiff her rights, read the statement back to her after she made

it, and commissioned it in her presence. The narrative contained
therein was obtained from the plaintiff herself.
[139]
He noticed during the interview with the plaintiff that she
had no shoes on and that she had bruises on both her feet. He
recorded
this on the warning template, and what she had told him
concerning how she sustained these injuries,
viz
, that “during
the arrest the police stamped (her) foot”.
[140]
He acknowledged that the entries in the police record to the
effect that both the plaintiff and Mr. Peter were free from injury
was not a correct assertion. He could say so concerning Mr. Peter as
well since he also formally charged him and noted injuries
sustained
by him as well.
[141]
He
remembered fetching certain things for the plaintiff at her home
after taking her statement, such as clothing, something to eat
and a
pair of shoes. The food was in the package brought from the
plaintiff’s home.
[35]
The medication was asked for but her family at home could not find
it.
[142]
As far as he was concerned when he charged the plaintiff,
further investigations were envisaged and still outstanding which
entailed
the taking of statements from other people in Campbell
Street, most notably the caretaker at no. 23.
[143]
He also completed the bail application form. The information
contained therein was mostly obtained from the plaintiff but it was

his opinion that no further discovery was necessary. According to him
the plaintiff did not ask to be released on bail but he conceded
that
there could have been no objection to her being released on such a
basis. He acknowledged the probability that if she had
been charged
on a separate docket, the further investigation deemed necessary
essentially concerning Mr. Peter, would not have
been a reason for
her separate appearance in court to have been delayed from the
Thursday until the Friday.
The
defendant’s failure to call available witnesses:
[144]
Conspicuous by its absence was any testimony on behalf of the
defendant by Constable Van Reenen who was focal to the issues of the

arrest of the plaintiff.
Indeed, he was the person
who opened the docket in which the plaintiff and Mr. Peter were
charged
under CAS 109/12/2016.
[145]
Further both Captain Van Niekerk and Warrant Officer McIntyre
who were on the scene and anticipated to have supported Sergeant
Oliver’s
premise of a near manic plaintiff assaulting her on
her version and hindering the police in their work, entailing the
arrest of
a supposedly equally “crazy violent” Mr. Peter,
did not testify.
[146]
Although the plaintiff exonerated Lieutenant-Colonel Houwlands
of any unbecoming behaviour or threats uttered toward the plaintiff

after her arrest, he too failed to give any personal account of his
obvious interaction with the plaintiff at the Humewood Police
Station
on the morning in question. (On any one’s account in my view,
the sight of a suspect even just suffering from the
effects of being
pepper-sprayed, screaming, and shouting on Sergeant Oliver’s
version, should have caused him as a commanding
officer to take an
interest in her situation for a very different reason than to
reprimand her for making a noise).
[147]
Likewise, no other authoritative members stepped forward to
vouch for the state of the police cells or the disposal of decent
sleeping
material to the plaintiff or essentially concerning how she
was treated by the members whilst under police custody to gainsay her

evidence as to her overall experience of her incarceration as being
uncomfortable, isolating, belittling and anxiety provoking.
[148]
Lastly
“Robert” from I-Patrol certainly needed to give an
account for his supposed necessary involvement at the scene
of
arrest, even if only to explain, on Sergeant Oliver’s version,
why he had stood poised to pepper spray Mr. Peter before
the latter
broke the top off of his spray device.
[36]
He would also notably have been able to support the defendant’s
premise (on which the latter’s entire defence hinged)
of a
dangerous situation and two supposedly out of control suspects.
[149]
The trial court was correct in my view to infer that the only
reason for the defendant’s failure to call at least Constable

Van Reenen, Warrant Officers McIntyre and “Robert” is
that their evidence would be contradictory to Sergeant Oliver’s.

The authorities concerning the failure by a litigant to call an
available witness are trite. Evidently all of the witnesses referred

to above were available to testify and indeed no basis was laid
during the trial to suggest that any one of them were biased, hostile

or unreliable.
The
significance of the police statements:
[150]
The police statements were contradictory in a number of
respects to the oral testimony of Sergeant Oliver that went to the
essential
issue of whether the plaintiff had made herself guilty of
interfering in their arrest of Mr. Peter and whether she assaulted
Sergeant
Oliver in the manner contended for by her.
[151]
It
was not an unreasonable expectation that the statements in the two
police dockets heralded what those witnesses might say if
called to
testify, hence it was permissible for the parties’ respective
legal representatives to have referenced them during
cross
examination on that assumption. Indeed, when holding a police officer
to account in their official capacities, one should
certainly be able
to set store by what they say concerning the performance of their
duties in a formal statement. That they are
true, however is not
necessarily so. In this instance, for example, the plaintiff by her
contrary evidence did not accept every
detail in them which meant
that the defendant was obliged to call the relevant officers to
verify their supposed accounts insofar
as their anticipated versions
differed from the plaintiff’s and to subject themselves to
cross examination. Since they did
not testify, the adverse portions
of their accounts relative to the issues in dispute at the trial,
remain of a hearsay nature.
[37]
Conversely allegations in them consistent with the plaintiff’s
account support her credibility.
[152]
The
statements of Sergeant Oliver and Constable Van Reenen were however
admissible for a different objective, namely, to serve as
documentary
evidence of the official accounts given by each of them regarding why
and how the plaintiff was arrested. Sergeant
Baadjies, for example,
based his decision to charge the plaintiff and Mr. Peter predicated
on what their sworn affidavits say.
The prosecutor also declined to
prosecute because of contradictory statements in the docket which
necessarily formed part of the
important evidentiary material.
[38]
Discussion:
[153]
Having regard to the respective credibility of the witnesses,
the trial court cannot be criticised for concluding that Sergeant
Oliver’s evidence was contradictory and unreliable, but having
done so it is difficult to fathom why it did not consider it

necessary to adopt the same caution in relation to the analysis and
evaluation of the same evidence essentially, applying it to
the
assault claim.
[154]
Indeed, having found no justification for the arrest on the
very same facts, any physical interference with the plaintiff’s

body was equally required to be examined under the same prism.
[155]
I have dealt above with some of the concerns of this court regarding
the trial court’s wholesale
rejection of the plaintiff’s
testimony in respect of the assault claim. Apart from these examples,
I cannot agree that her testimony was subpar or
lacking in any respects. To the contrary, she
was a credible
witness whose evidence, despite lengthy and rigorous cross
examination remained consistent, in particular in respect
of the
material issues in dispute between the parties.
[156]
The trial court was certainly correct to highlight
contradictions between her evidence and those of her
witnesses,
but to my mind these were immaterial
and went to peripheral issues of no moment.
[157]
Their differences in account by the plaintiff and
her siblings was to be expected given that each perceived the
incident from their
own unique perspectives in a fast moving,
chaotic, scene that evidently was over just as soon as it had begun.
The plaintiff cannot
be condemned, for example, for stating that she
witnessed her brother being struck with a fist whereas he said he was
merely pushed
on his chest. She viewed the attack on him while his
back was turned to her. For the rest, in respect of the discrepancies
that
were exhaustively held up to the plaintiff and her siblings
under cross examination, these were minor immaterial side shows, as

it were. In essence everyone including the defendant were agreed that
the police were challenged for their overreach and “brutality”

in handling the arrest of Mr. Peter, which quickly erupted into a
scene.
[158]
The plaintiff remained consistent in respect of
her version of the significant events. She easily made concessions
where these were
due, gave a sober and unexaggerated account of the
incident, and was evidently not beaten down by lengthy and demanding
cross examination.
The plaintiff siblings too were correctly not at
all criticised for their demeanour or branded as unreliable or
untruthful witnesses.
[159]
Ironically the most random astonishing thing that
Ms. Peter revealed (evidently quite unexpectedly so) was her
coincidental meeting
with “Sharkey” after the plaintiff’s
arrest that morning. This revelation at first blush appeared
incredulous,
yet Sergeant Oliver felt herself obliged to give account
for her presence at his home when she testified later on. This to my
mind
confirms,
inter alia
,
the intensity with which the family were pursuing options to get the
plaintiff released on bail; Ms. Peter’s critical recall
of the
day's most unusual events; and the sharpness of her observations in
particular. Further, and more importantly, even this
chance encounter
between Ms. Peter and Sergeant Oliver after the plaintiff’s
arrest, confirms that there was nothing inherently
improbable in the
plaintiffs’ witnesses accounts.
[160]
There
was further corroboration to be found in the fact that the plaintiff
suffered injuries (as did Mr. Peter)
[39]
whilst in police custody (vitally confirmed by Sergeant Baadjies in
his testimony) which was consistent with the reports of the
general
medical practitioners and more especially the professional opinions
of both clinical psychologists. It is hard to fathom
why the trial
court imagined that the medical evidence did not support the
plaintiff’s case or deduced that her injuries
were inconsistent
with the account given by her of the events of the day in question.
[161]
The emotional trauma suffered by her, the symptoms
of which were still in evidence closer to the trial according to the
professionals,
provides significant corroboration that the plaintiff
suffered a traumatic event. Indeed, the effect of the psychologists’

agreement is an acceptance that the plaintiff was not malingering in
this respect and that the emotional trauma to her was very
real, and
further that there was a causal link between her symptoms and a
significantly traumatic event that had, on the probabilities,

occurred in fact.
[162]
The significant confirmation by Sergeant Baadjies that the
plaintiff was barefoot and had injuries to both her feet casts
serious
doubt on the entries in the official police records, firstly,
by Constable Van Reenen to the effect that the plaintiff and Mr.
Peter were free of visible injuries when they were brought to the
police station and, secondly, by Sergeant Oliver (despite her

admission made latterly at the trial that she had pepper sprayed the
plaintiff) who declared in her sworn statement that the plaintiff
was
free from injuries. It was common cause that the plaintiff was
barefoot when she was detained at the Humewood Police Station
and it
is thus highly improbable that Constable Van Reenen and Sergeant
Oliver would not have seen the clearly visible injuries
on both her
feet.
The fact that they instead vouched for a
“free of injury” declaration in respect of the plaintiff
and Mr. Peter (despite
all that on Sergeant Oliver’s version
had happened at the scene of the arrest concerning both of them)
raises a serious question
mark over their honesty and the veracity of
Sergeant Oliver’s testimony. It is also not hard to find that
they contrived
a case against the plaintiff based on their clearly
false account of the events to cover their tracks, which served
effectively
to pull the wool over Sergeant Baadjies’ eyes and
convince him that there was a real supposed basis to charge the
plaintiff
and to hold her in police custody under the pretext that
she was to be prosecuted for the offence.
[163]
Sergeant Oliver was ultimately the only witness who purported
to countervail the plaintiff’s version pertaining to the events

leading to her assault and arrest and detention. I accept Ms. Du
Toit’s submission regarding her demeanour as a witness that
she
cut a sorry and defensive figure in the witness box. Her evidence can
rightly be criticised as contradictory, confusing, evasive,
and
improbable. She was an exceptionally poor, unreliable, and downright
dishonest witness.
[164]
I am satisfied that the plaintiff’s evidence was
the most probable, credible, and reliable when compared with the
false
and contradictory evidence tendered by Sergeant Oliver.
[165]
I
am further satisfied on the acceptable proven evidence that the
plaintiff made out a case for both claims for assault and malicious

arrest. This is a clear case of a police officer having made improper
use of the legal process to deprive the plaintiff of her
liberty on
the back of a contrived case, in the process violating her dignity
and other aspects of her personality.
[40]
[166]
In my view it is unnecessary to comb
through every other alleged nuance of the illegality of the
plaintiff’s arrest and detention
as relied upon by her which
are in a sense eclipsed by the finding that the arrest was malicious.
The arrest on this basis conduced
to the overall harm and was the
sole cause of it. If the defendant had been a private person who had
instigated the arrest one
might be interested in the defence raised
through Sergeant Baadjies’ testimony that there was a
prima
facie
case made out in the founding
statements provided to the police that exonerated the Minister from
any claim that there was not
a reasonable basis upon which to have
justified charging the plaintiff with an offence, but he was equally
on the hook for the
delicts of Sergeant Oliver and Constable Van
Reenen as well, both of whom made themselves guilty of abusing the
legal machinery
to have arrested the plaintiff and by necessary
implication were responsible for her continuing detention (and its
full fallout)
as well.
[167]
On
the issue of bail, the plaintiff would certainly have been entitled
to be released from detention pursuant to the provisions
of
section
59
(1) (a) of the CPA before her expected first court appearance, a
concession readily made by Sergeant Baadjies.
[41]
It is unnecessary to consider whether his approach in not releasing
her on police bail (and delaying her appearance by a further
day to
allow for further investigation) was objectively justifiable. His
rationalisation for detaining her further after having
charged her is
cancelled out by the Minister’s vicarious liability for the
machinations of Sergeant Oliver and Constable
Van Reenen who
projected a false premise that condemned the plaintiff to her
unfortunate fate that can only be ameliorated by a
damages award.
[168]
I
am coincidentally not convinced that the plaintiff unequivocally
asked to be released on bail from police custody although
her family
were certainly keen to have her released from custody immediately if
that was possible. The plaintiff’s testimony
in this respect
was quite tentative and she conceded that she probably did not force
the issue with Sergeant Baadjies. I would
have trouble finding on the
probabilities that he would have purposely ignored a proper request
for bail. In my view, consistent
with our recent finding in
Minister
of Police v Fry,
[42]
a police officer is not required to consider the release of a
detainee on bail pending trial
unless
there is a request in this respect
.
[43]
The plaintiff’s lack of knowledge of what she was required to
do in the circumstances however certainly does not operate
to
exonerate the defendant from liability for the full extent of her
detention in the present scenario.
[169]
In the result the
plaintiff’s cross appeal must succeed. The corollary of that is
that the defendant’s appeal in respect
of the costs order on
claim 1 becomes academic.
Quantum:
[170]
On
the issue of quantum in respect of the assault claim, the amount held
up by the plaintiff as adequate compensation is in the
sum of R200
000,00. Ms Du Toit referenced the police’s unacceptable taking
of the law into their own hands and breach of
their constitutional
mandate which behoves them to treat citizens with proper respect.
Although the plaintiff’s physical
injuries were not of a
serious nature or with any serious
sequelae
,
Ms. Du Toit fairly submitted in my view that
any
form of invasion of a person's physical integrity no matter how
trivial is indefensible in any civilised society particularly
by
police officers who are enjoined to protect individuals against such
invasions of their physical integrity.
[44]
[171]
The extent of the
emotional trauma suffered by the Plaintiff was however more serious
and left an indelible mark on her.
[172]
Instead of offering
medical attention to the plaintiff during her detention for the
physical suffering caused at their hand, Sergeant
Oliver and
Constable Van Reenen rather attempted to cover up the fact that she
had injuries by making patently false entries in
the occurrence
register and in their written statements. To my mind it is especially
cruel that they left her in a police van or
in transit somewhere to
being processed at the charge office for a lengthy period after
having pepper sprayed her and without access
to running water to
ameliorate the painful effect of it at least by being able to flush
her eyes.
[173]
A further aggravating
feature is that she was assaulted in full view of her family members
and several members of the public.
[174]
The point is further
well taken by Ms. Du Toit who appeared for the plaintiff that she was
assaulted and maliciously arrested evidently
to assuage Sergeant
Oliver or Constable Van Reenen’s wounded vanity. Clearly they
took umbrage at being admonished by the
plaintiff and her brother for
assaulting Mr. Peter which is what sparked the flame and ultimately
led to her unjustified assault
and malicious arrest and detention.
[175]
I agree that taking
into account these aggravating features and relevant case law
contended for that an award of R200 000.00
in respect of general
damages and
contumelia
is a suitable and equitable award to ameliorate the disgrace,
humiliation, and pain and suffering that was brought to bear on her

in the peculiar circumstances of this matter.
[176]
Concerning
the award for malicious arrest, it is a trite principle that malice
is a basis for an increased damages award.
[45]
Ms. Du Toit did not however argue for an adjustment of the award made
by the trial court for this claim (even assuming this court’s

finding that the arrest and detention of the plaintiff was malicious)
except to make allowance for the plaintiff’s special
damages
related to the cost of psychotherapy. These were agreed between the
psychologists at a cost of R1 200.00 per session,
ten of which
were considered necessary and reasonable to remediate the emotional
harm suffered by her. Some provision ought also
to be made for the
suggested three sessions with a psychiatrist to assess the
plaintiff’s needs for pharmacotherapy. Ms.
Mochela in her
report costed a single session at R1 600.00 at the time.
[177]
Mr. Madokwe contended that the award of
the trial court in respect of general damages for claim 2 was
“grossly excessive”
but this submission was evidently
made on the premise that no improper motive or malice was proved by
the plaintiff.
Ms. Du
Toit submitted that significantly, when the issue of quantum was
raised in the plaintiff’s heads of argument and during
argument
in the court below, he made no opposing submissions in his heads of
argument, nor during argument in court.
[178]
She
referred this court to the same comparative awards referenced in the
court below which confirm to my mind that the award based
on the
trial court’s finding of at least wrongful and unlawful arrest
and detention are not off the mark and fairly represent
the duration,
circumstances, and unique features of the plaintiff’s
incarceration. Indeed, it is important that a damages
award for
unlawful arrest is fair and appropriate in the factual situation of
each matter and that it reflects the importance of
the right of
personal liberty of members of society and the seriousness with which
an arbitrary deprivation of personal liberty
is or should be viewed
by our courts. The primary purpose of a damages award is indeed not
to enrich an aggrieved party but to
offer him or her some consolation
for his or her injured feelings. It is also necessary to reiterate
that courts take a serious
view of claims for malicious proceedings
by awarding substantial damages.
[179]
In this instance the plaintiff was
detained for just over two days under what she described as appalling
conditions that caused
her to experience emotional distress and led
to her suffering symptoms of post-traumatic stress disorder. Even the
belated kindness
and consideration shown by Sergeant Baadjies in his
sensitive treatment of her nine hours after her arrest could not make
up for
her shocking experience at the hands of the responsible police
officers. Her psychological impairment as a result of the incident

was quite significant. She was arrested in full view of members of
the public for offences that she did not commit and which had
no
lawful basis. Even after her arrest, there was a substantial delay in
processing her through the police registers and an even
longer hiatus
before she was formally charged and able to engage with someone about
her uncertain fate. No apology has ensued and
indeed the Service had
failed to prosecute her claim of assault against Sergeant Oliver and
her colleagues to this day. One can
appreciate her experience of
feeling like a “nobody” and being isolated from her next
of kin who tried by all means
to assist from their perspective.
[180]
I am satisfied that these unfortunate
circumstances together with a consideration of similar awards to
which Ms. Du Toit referred
the court, justify an award of R200 000.00
for general damages in respect of this claim.
[181]
In the result the defendant’s
ground of appeal aimed at the supposed excessive award in respect of
claim 2 also falls to be
rejected.
Interest
on the awards:
[182]
Ms.
Du Toit noted that in respect of the interest of the awards claimed,
the court below had accepted submissions made on behalf
of the
plaintiff (again not challenged by Mr. Madokwe at the time) that it
was appropriate
for
the court to have granted interest from date of demand to date of
final payment in keeping with the court's discretion to award

interest in respect of unliquidated debts from the date of demand.
Indeed, this is made provision for in section 2A (2) (a) of
the
Prescribed Rate Of Interest Act
[46]
which lays down the general principle that interest accrues from the
date of demand or date of service of summons whichever is
the earlier
date. It is open to a court, in fixing the date from which interest
is to run, to give effect to its own views of what
is just in all the
circumstances. It had been submitted on behalf of the plaintiff that
this was a proper case for the court below
to have invoked that
power. Whilst it is unfortunate that the court below did not indicate
its reasons for the exercise of its
discretion, the inference is
irresistible that it acted upon the suggestion of the plaintiff’s
legal representative
[47]
in
this respect and upheld his argument.
[183]
I am satisfied that in doing so it acted
as it was entitled to
in
accordance with the power bestowed on it by section 2A (5) of the
Prescribed Rate Of Interest Act, and that the granting of interest

from the date of demand to date of final payment fell within the
range of permissible options open to it. I am not inclined to

interfere in this respect and intend to adopt the same approach in
respect of interest on claim 1 which naturally runs together
with
claim 2.
Costs
of Suit:
[184]
The same applies with regard to the
granting of costs by the trial court on the attorney and client
scale. Comprehensive submissions
were made on behalf of the plaintiff
at the trial to persuade it to exercise its discretion on such a
basis given the egregious
behaviour of the police. Again, Mr. Madokwe
made no opposing submissions in his heads of argument nor during
argument in court,
to counter the plaintiff’s contention that a
punitive costs award (as claimed in the plaintiff’s particulars
of claim)
was suitably justified. The trial court can again be
criticised for not stating the reasons underlying the exercise of its
discretion
in favour of the plaintiff on this score and stating
perfunctorily that the costs should “follow the outcome,”
but
at the end of the day it appears to be obvious that the trial
court was taken in by the submissions made on behalf of the plaintiff

in this respect and was satisfied that a proper case had been made
out for cost on the basis prayed by the plaintiff.
[185]
I agree with Ms. Du Toit that the trial
court was fully justified in granting costs on a punitive scale when
taking into consideration
the disgraceful conduct of Sergeant Oliver
and her colleagues on the day in question. It follows that this
ground of appeal raised
by the defendant also falls to be rejected.
Order:
[186]
In the result I issue the following order:
1.
The appellant’s appeal is dismissed, with costs.
2.
The respondent’s cross-appeal is upheld, with costs.
3.
The order of the court below is set aside and substituted with the
following:
“
(a)       The
defendant is ordered to pay damages to the plaintiff in the sum of
R200 000.00,
in respect of Claim 1.
(b)       The
defendant is ordered to pay damages to the plaintiff in the sum of
R196 800.00,
in respect of Claim 2.
(c)
Interest
is payable on the abovementioned amounts at the prescribed legal rate
calculated from date of demand (16 March 2017) to
date of final
payment; and
(d)
The
defendant is to pay the costs of the action on an attorney and client
scale within fourteen (14) days after date of taxation.”
B
HARTLE
JUDGE
OF THE HIGH COURT
I
AGREE,
L
RUSI
JUDGE
OF THE HIGH COURT
DATE
OF APPEAL:           28
October 2022
DATE
OF JUDGMENT:     11 May 2023
Appearances:
For
the Appellant:        Mr.
Madokwe instructed by Lulama Prins Inc., Grahamstown (ref.
Ms. L
Prins).
For
the Respondent:   Ms. Du Toit instructed by Peter McKenzie
c/o N N Dullabh & Co, Grahamstown (Mr. N Dullabh).
[1]
The amount claimed in this regard was in the sum of R398 600.00
comprising of general damages for the malicious arrest and

detention, discomfort, emotional distress and
contumelia
,
as well as special damages for her future psychotherapy and
pharmacotherapy treatment costs in the sum of R23 600.00.
[2]
The
full name of this person was Robert Brouwer according to the
plaintiff’s counsel.  Evidently I-Patrol is a local

private security service operating in the area where the plaintiff
and her family lived at the time.
[3]
I
assume that the defendant was here referring to the period of
pre-trial detention which extends from arrest to the earliest
moment
when an arrestee is or can be released on bail or warning by the
court, if not earlier by the police.
[4]
In terms of section 39 (3) of the CPA the effect of an arrest is
that a person is in lawful custody until he or she is lawfully

released from custody.
The sub-section however deals only with the general legal
consequences of an arrest, but it follows axiomatically that any

subsequent detention which is not sanctioned by the CPA cannot be
legalized by section 39(3). A plaintiff must however allege and

prove why he or she contends that the detention is not sanctioned by
the CPA thereby rendering it unlawful. See
Jacobs
v Minister of Safety and Security (CA 327/2012) [2013] ZAECGHC 95
(23 September 2013) at para [40].
In
casu
the plaintiff’s case is that her arrest was a putative one
from the outset not ever having warranted the need for her to
have
been arrested or detained. The provisions of section 50 (1) of the
CPA concern themselves with the procedural imperative
that an
arrested person be brought as soon as reasonably possible to a
police station and, unless the situation does not permit
for him to
be released from police custody under one of the recognized bases,
to be brought before a lower court as soon as reasonably
possible,
but not than 48 hours after the arrest.
[5]
The defendant baldly denied the plaintiff’s allegation that
she never appeared before a magistrate on the charge and put
her to
the proof thereof.  The defendant however ultimately tendered
no evidence to counter hers that she was released without
appearing
before a lower court on any charge. This plaintiff’s evidence
in this respect is supported by an endorsement
on the face of the
police docket by a prosecutor of “
Nolle
Prosequi.
”
This significant occurrence goes to the element of the termination
of the “proceedings” entailing her arrest,
being
charged, and detained in police custody until she was told around
13h00 on 9 December 2016 that she could leave.
It endorses her
claim of the unreasonableness of the proceedings that morphed into
nothingness ultimately and gives credence
to her claim that her
arrest was a farce from the outset.  (
See
Thompson v Minister of Police
[1971] 1 All SA 534
(E) at 539).
[6]
This
is not strictly correct.  His report reads:
“
Needs
J88.
Stepped on foot
Bumped against wall
Whole body pains
Scratch mark on foot
Emotionally upset.”
[7]
The second doctor co-incidentally also noted that the plaintiff was
“traumatised”.
[8]
Baring
Eiendomme Bpk v
Roux
2001 (1) All SA 399 (SCA).
[9]
1984
(4) SA 437
(ECD) at 440D – 441A
[10]
1974
(4) SA 420
(W) at 426 – 7.
[11]
1980
(2) 234 (W).
[12]
[2002] ZASCA 98
(6 September 2002)
[13]
Supra
,
at para [5]
[14]
See unreported judgment of Lowe J in
Khwatshana
v Minister of Police
,
Makhanda Case No. 1804/2014, at paras 47 – 48.
[15]
Ms. Mochela consulted with the plaintiff two months after the
incident and Mr. De Jager almost three years after the incident.
[16]
The effect of a joint minute is to detail the basis upon which the
experts agree, or disagree as the case may be, and in doing
so they
narrow the issues in dispute.  This generally renders their
oral testimony at a trial unnecessary if the opinions
stated therein
are at least cogent.
[17]
At worst for her, her legal representatives failed to request an
amendment to bring her particulars of claim in line with what
the
experts had agreed.  In my view, however this was unnecessary
given the corresponding experts’ joint minutes and
agreement
on the salient issues which the parties were happy to accept.
[18]
See
LAWSA, 3
rd
Edition, Volume 28 (1), at paragraphs 38 – 42 under the
heading: “Malicious Arrest or Imprisonment” and the

comprehensive list of established authorities referred to therein.
This excerpt relates to paragraph [50] – [54] of this
court’s
judgment above.
[19]
Minister
of Justice & Others v Tsose
1950 (3) SA 88
(T) at 92H – 92A.  This is based upon the
principle that all that is necessary for a successful reliance upon
section
40 (1) (a) of the CPA is the observance of behaviour that is
prima
facie
criminal.
[20]
Newman
v Prinsloo
1973 (1) SA 125 (WLD).
[21]
Constable
Van Reenen was the primary complainant and the claimed assault
emphasised in his A1 statement was Mr. Peter’s
alleged assault
of himself.
[22]
If
one accepts the plaintiff’s evidence, Mr. Peter was already in
the van and therefore when the plaintiff and her brother
involved
themselves in challenging the police, each for their own reasons,
there could not have been any wilful obstruction of
the police in
their duties thereby.  See, for an example of the court’s
approach to be adopted, Smith v Burkett
1919 EDL 203
at 209
especially.   Mr. Madokwe invited the court to find that
even on the plaintiff’s own version that she
patted Sergeant
Oliver on her shoulder to release her foot, this constituted conduct
that was
prima
facie
criminal.  The submission is farcical because the plaintiff
says she touched her shoulder to encourage Sergeant Oliver to

release her foot.  It was not to interfere with the exercise of
her duties. Resistance to the police carrying out their
duties or
“the rescue” of a suspect in the process of being
arrested must be an overt, forcible act.
[23]
It
was maintained throughout the trial that the plaintiff had no
relationship with Mr. Peter neither did she know him.  It
is
most improbable, on the defendant’s case that the plaintiff
interfered with his arrest, that she would have gone to
bat for him
if she had no affinity with him.  Her version that all of them
were appalled by the police’s brutality
to him and involved
themselves only to make such a complaint, is the more plausible.
[24]
The
plaintiff referred to Mr. Majola as her “brother,”
although he is evidently a cousin of hers.  I will refer
to him
as a brother in describing his involvement, her female cousin (Ms.
Aganathi Peter) as her “sister” and the
pair of them as
her “siblings.”
[25]
Mr
Majola says that he was just shoved on his chest, but his back was
to the plaintiff at the time.
[26]
From the records comprising the trial bundle it is evident that the
prosecutor had decided not to prosecute, but it is not clear
at what
time such a decision was taken.  On the probabilities though it
appears that the plaintiff did not formally appear
in court as
maintained by the defendant. On the defendant’s case that the
plaintiff’s arrest was lawful, even making
allowance for the
contrary position taken by the prosecutor that there was no
reasonable or probable cause for Sergeant Baadjies
to have charged
her, the time was of the essence as the 48-hour pre-trial detention
outer limit would have run out around ten
thirty that morning. Still
the plaintiff was not informed that she was free to go.
Instead, the restraint on her freedom
was assumed justified, or by
default continued to operate to her disadvantage, because of the
putative charges against her.
[27]
This seemed a random name but Ms. Peter when she testified also
happened to mention him as a person from the neighbourhood to
whom
she had gone to after the incident to ask for advice regarding the
obtaining of legal representation for the plaintiff.
When at his
home she quite co-incidentally encountered Sergeant Oliver present
there in his bedroom.
[28]
Mr.
Madokwe appeared for the defendant both at the trial and upon
appeal.
[29]
These
were clearly peripheral issues that were exhaustively the subject of
the defendant’s cross examination of the plaintiff
and her
“siblings” at the trial.
[30]
Much of the examination turned on these differences.  In my
view narratives taken down by medical experts are often loose,

without forensic acumen, and have little regard for their affect
upon the evidence.  This is why it is essential for parties
in
their pre-trial agreements concerning medical reports handed in as
evidence to reflect on how the experts have recorded their
summaries
of significant events, or concerning collateral provided by persons
other than the patient, to ensure that it presents
correctly.
Ideally legal representatives when filing joint minutes and reports
should themselves filter the background
information and reserve
their positions if necessary regarding anything contentious in the
underlying summaries provided.
In any event discrepancies
between these narratives and oral testimony can hardly condemn
litigants where they declare that the
background stated therein is
not 100% correct.  It is one thing to hold up differences in a
witness’ oral testimony
to a sworn statement made by him or
her, but quite another to present a specialist’s account,
often relaying hearsay matter
in itself, as if it were a sworn
declaration and to measure the credibility of a subject witness
against it.
[31]
There
were at least two children from the plaintiff’s home who
witnessed the fracas outside that day.
[32]
In explaining her admitted interaction with “Sharkey”
after the arrest of the plaintiff Sergeant Oliver purported
to
explain that they had searched his “drug post” and
several other places before the afternoon on the same day.
She
was obviously at the charge office at 12h30 to have prevailed upon
the plaintiff to sign her SAP 14, so the inference is
irresistible
that the processing of the plaintiff was not a priority and left
until after this search (see par [123] below.)
[33]
Having conceded that she used pepper-spray on the plaintiff, one
wonders why she would not have acknowledged this at least as
it also
amounts to an injury and certainly one requiring immediate attention
to alleviate the discomfort to one who is a victim
of being affected
by pepper spray. She ought have noted this as an injury even if
“Robert” had pepper spayed the
plaintiff, but more so if
she had done so herself, on her belated version.
[34]
I assume that this is Constable Van Reenen’s because it is the
only officer’s statement other than Sergeant Oliver’s

that was obtained earlier that day.
[35]
There
was a dispute between his evidence and Ms. Peter concerning who
brought what to the station but in my view nothing turns
on this or
impacts their credibility.  Both were testifying several years
after the incident.
[36]
See the principle established in
Minister
of Police v Ewels
1975 (3) SA 590
A at 597A – B to the effect that a police on
duty, if he witnesses an assault, has a duty to come to the
assistance of
the person being assaulted. His failure to do so
renders the minister liable for damages flowing from his omission to
act in
the circumstances.  This also accords with the
constitutional mandate of a police officer pursuant to the
provisions of
section 205 (3) of the Constitution of the Republic of
South Africa, repeated in the preamble to the
South African Police
Service Act, No. 68 of 1995
.
[37]
Mr.
Madokwe incorrectly asserted that they stood as corroboration of
Sergeant Oliver’s testimony.
[38]
A
perusal of what evidentiary matter made up the case against the
plaintiff is essential to a court’s careful scrutiny in
every
case where the lawfulness of an arrest is under consideration. The
essential power of the police to arrest as a critical
tool in the
Service’s arsenal to fight against crime always stands
counterposed to that of a person’s constitutional
rights of
personal liberty and dignity.  A court is expected to carefully
scrutinize in each case whether a
prima
facie
infringement of these rights is legally in order, especially having
regard to relevant documentation in which official accounts
of the
incident are journalised. The fact that Sergeant Baadjies was
persuaded that good cause existed to charge the plaintiff
on the
basis of what the officers recorded in their statements demonstrates
just how effectively Sergeant Oliver and her partner
used the
machinery of the arrest and detention of the plaintiff for their own
nefarious purposes.  The fact that the prosecutor
declined by
the Friday to prosecute because of contradictory statements garnered
from more people at the scene is a further objective
indicator of
the absence of reasonable or probable cause ever having existed in
the first place, except as was falsely projected
by the arresting
officers in their police statements.
[39]
The
fact of these gives credence to the peripheral issue that the police
were manhandling Mr. Peter.  On the defendant’s
version
however, he was supposed to have been the aggressor.
[40]
Relyant
Trading (Pty) Ltd v Shongwe [2007] 1 All SA 375 (SCA).
[41]
The
suggestion flirted with by Mr. Madokwe that the plaintiff had made
herself guilty of public violence which would have excluded
her from
consideration for police bail is somewhat mischievous.
[42]
(CA250/2019) [2020[ ZAECGHC 150 (6 December 2020)
[43]
At paras [152] – [160]
[44]
See unreported judgment of Plasket J as he then was in
Peterson
v Minister of Safety and Security
(1173/2008)
[2009] ZAECGHC 65 (23 September 2009) at paras 1, 21, 26, 27 and
28.)  See also
Chirindza
Ernesto Guidone v The Minister of Safety and Security
,
Case no 2008/37480 (GLD, Johannesburg) dated 11 June 2015 at paras
35 and 36 and
Martins
v Minister of Police
(1400/2011) [2013] ZAECPEHC 27 (4 June 2013).
[45]
Birch v
Ring
1914 TPD 109.
See also
Louw
& Another v Minister of Safety and Security & Others
2006 (2) SACR 178
(T).
[46]
Act No. 55 of 1975.
[47]
The
plaintiff was represented at the trial by her attorney, Mr.
McKensie, who filed detailed and comprehensive heads of argument
in
respect of this issue.