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[2023] ZAECMHC 30
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Sabisa and Another v Minister of Police (2889/2016) [2023] ZAECMHC 30 (20 June 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, MTHATHA)
Case
No:
2889/2016
In
the matter between:
THANDEKILE
SABISA
First
Plaintiff
LAWRENCE
NZIMENI MAMBILA Second
Plaintiff
and
MINISTER
OF POLICE
Defendant
JUDGMENT
NHLANGULELA
DJP
Introduction
[1]
The plaintiffs each instituted an action against
the Minister of Police for wrongful arrest and detention, assault,
and
contumelia
at the hands of various policemen/ women who were employed by the
Department of South African Police Service. The Minister is cited
as
the political head of the department. He is vicariously liable in law
for delicts committed by the members of his department.
For those
delicts, the plaintiffs each seek judgment against the Minister for
the payment of damages in the sum of approximately
R10m.
[2]
The Minister has filed a notice of intention to
defend the plaintiffs’ action.
Pleadings
[3]
In pleading the claims for unlawful arrest and detention the
plaintiffs alleged that
the members of the SAPS committed an unlawful
arrest in that they did not produce any warrant authorizing them to
do so and, even
if the warrants had been issued in terms of the
provisions of s 43 of the CPA, the members did not have justification
for executing
warrants against them. As regards the claim for
unlawful detention the plaintiffs alleged that their detention from
18 April 2016
to 26 April 2016 was unlawful as it derives from
unlawful arrest. As I understood the pleadings, duly amplified
by the pleaded
factual bases and evidence adduced the plaintiffs seek
to hold the defendant vicariously liable for the pleaded breaches,
including
for the sequelae suffered as a result thereof.
Ultimately, the plaintiffs seek payment of delictual damages against
the defendant
as a
solatium
for injuries to dignity, liberty,
physical integrity, and feelings. An exception to the pleaded claims
did not arise in this case.
[4]
The defendant’s plea to the plaintiffs’ claims is rooted
in the defence
that since the members of the SAPS effected the arrest
and detained the plaintiffs on the strength of the valid warrants of
arrest
issued by the magistrate of Tsolo on 18 April 2016, discovered
as Item 3 and Item 4, the plaintiffs’ claims fall to be
dismissed.
In that event, the plaintiffs cannot be heard to say
that the arrest and detention were not lawful, so the argument went
on. It was pleaded further on behalf of the defendant that the
warrants of arrest were produced by the arresting officer and
shown
to the plaintiffs at the time of their arrest on 18 April 2016. It
was also pleaded that the members were justified in executing
the
warrants of arrest. The detention of the plaintiffs from 18 April
2016 to 26 April 2016 is admitted. The assault and torture
were
flatly denied. In putting his defense in a proper perspective,
the defendant pleaded that upon the arrest of the plaintiffs
on 18
April 2016 under valid warrants of arrest, the plaintiffs were
admitted to St Mary’s Hospital, Mthatha on 19 April
2016, and
they remained there on the authority of the court which had remanded
them to 26 April 2016. In a nutshell, the defence
pleaded on behalf
of the Minister is that the plaintiffs’ claims fall to be
dismissed on the bases that they were arrested
and detained lawfully,
it is not true that the plaintiffs were assaulted and tortured whilst
being in the custody of the police
and that they were treated in a
civilized manner from the time of the arrest, incarceration in the
awaiting trial police cells
of Mthatha Central Police Station and
until they left the custody of the police.
[4]
I now turn to deal with the defence that the plaintiffs’
pleading is bad for
the reason that they pleaded only the case that
their entitlement to judgment is predicated on the absence of
warrants of arrest.
It was submitted on behalf of the defendant
that the plaintiffs’ particulars of claim cannot call upon the
defendant
to answer to the case of arrest without a warrant and then
add the case of the improper manner of execution of the warrants of
arrest. In this regard, reliance was made on the case of
Imprefed
(Pty ) Ltd v National Transport Commission
[1]
. It was argued that
the plaintiffs did not plead an alternative claim that the existing
warrants were invalid. The Court
was urged to have regard only to the
cause of action based on warrantless arrest as that is the claim that
is defined by the plaintiffs’
pleadings-in terms as stated in
Shill
v Milner
[2]
. The court was
exhorted to mark its displeasure with improper pleading by dismissing
the plaintiffs’ claims.
[5]
The submission that the plaintiffs in their pleadings drew the
attention of the defendant
to one case but stated a different case at
the trial without recourse to the practice rules provided for the
amendment of pleadings,
does not have merit. In their particulars of
claim, in paragraph 5.7 the plaintiffs make the following
allegations:
‘
5.
When arresting the [plaintiffs], the aforementioned police officers
and other police officers, whose names are unknown to the
plaintiffs:
…
5.7
did not produce any warrant [s] for the arrest of the [plaintiffs]
and did not have any justification for executing a warrant
of arrest
on the [plaintiffs] even if one was available.’
[6]
In my understanding of paragraph 5.7, the pleading provides for the
scenarios of both the arrest with and without a warrant.
And
the issue being raised in both the pleadings and the evidence that
was led at the trial it became plain that the gravamen
of the
plaintiffs’ case was that the arrest and detention were
unlawful. is the unlawfulness of arrest and detention. Therefore,
it remains for the evidence led at the trial to bring home a final
decision to be made by this court whether the arrest and detention
were lawful or not.
[7]
In the context that the material facts inscribed in the pleadings
that crystalise the real dispute between the parties,
I ruled in the
case of
N.
Plaatjies v Minister Police
[3]
that
a legal objection that less than, or more than, the ideal facts to be
proved or disproved should have been inscribed on the
pleading is
untenable. In this case, the objection is framed similarly, albeit
that the defendant targets the cause of action based
on arrest with a
warrant that is said to have not been pleaded. I have found that, as
a fact, the plaintiffs pleaded an unlawful
arrest with or without a
warrant. However, it will help to also state that to plead a cause of
action that fails to disclose a
real dispute sought to be adjudicated
would be improper. This was illustrated in the case of
Christiaan
Benjamin Weitz v Minister of Safety and Security and Others
[4]
where Plasket J (as he was then) said in paragraph 20:
‘
The question of how
Magadlela exercised his discretion to arrest arises somewhat
obliquely from the pleadings, but it was accepted
by both Mr Mouton
who, together with Ms Bands, appeared for Weitz, and Mr Zilwa, who
appeared for the Minister of Safety and Security
and Magadlela, that
this was the true crux of the case. As a result, Magadlela’s
reasons for executing the warrant were put
to Weitz in
cross-examination; Magadlela testified as to how he took the decision
when he was led, and did so in relation to paragraph
11 of Weitz’s
amended particulars of claim; and he was cross-examined on this at
some length. As a result, even if it could
be said not to have been
raised properly in the pleadings, it was understood by the parties to
have been an issue on the pleadings
and it certainly was canvassed
fully in the evidence. I am therefore in a position to deal with what
is clearly the real issue
in the trial.’
[8]
In
the application for leave to appeal
[5]
Plasket
J (as he was then) stated:
‘
[8] The cases do
not draw a distinction between an issue being pleaded inadequately
and not being pleaded at all. In
Collen
v Rietfontein Engineering Works
,
[2]
a case I cited in my judgment, the court decided the matter on the
basis of a contract that was never pleaded, and contained different
terms to the one that was, because all relevant material having been
produced in evidence and placed before the court, it ‘would
be
idle for it not to determine the real issue which emerged during the
course of the trial’.
[9]
In
Middleton v Carr
, also a case cited in my judgment,
Schreiner JA, where a party sought to rely on an unpleaded tacit
contract, stated that ‘where
there has been a full
investigation of a matter, that is, where there is no reasonable
ground for thinking that further examination
of the facts might lead
to a different conclusion, the Court is entitled to, and generally
should, treat the issue as if it had
been expressly and timeously
raised’.
The onus of proof
[9]
Whereas both parties admitted that the overall
onus
to prove the plaintiffs' claim lies with the plaintiffs, the duty to
justify the arrests and detention lies on the minister. The
reason for this is that the arresting of arrest of the plaintiffs is
admitted but in law, the wrongfulness has to be justified
by those
policemen/ women who affected the arrests of the plaintiffs on 18
April 2/20/16. The authority for that proposition
is the case
of
Minister
of Law and Order and Others v Hurley and Another
[6]
.
The duty to justify arrest does not change even if the
arresting officer arrests or purports to arrest a person on the
strength of a warrant. The authority for this proposition is the
Minister
of Safety and Security v Sekhoto And Another
[7]
. It was agreed between the
parties that the duty to lead evidence first lies with the plaintiffs
as the
onus
-bearing
parties.
[10]
The approach towards discharging
onus
to prove wrongful detention is like the approach adopted towards
proving wrongful arrest. This was authoritatively laid down in
the
case of
De
Klerk v Minister of Safety and Security
[8]
.
[11] the approach adopted
by the parties finds resonance with the analysis of the provisions of
the CPA that was made in
Weitz 1
. There, the following was
said:
‘
[8]
Section
38
of the
Criminal
Procedure Act 51 of 1977
provides for four methods of securing the attendance of an adult in
court for purposes of his or her trial. They are arrest, summons,
written notice and indictment.
Section
39(1)
provides
that arrests may be made with or without a warrant and
s
39(3)
states that the effect of an arrest is that ‘the person
arrested shall be in lawful custody’ and he or she ‘shall
be detained in custody until he [or she] is lawfully discharged or
released from custody’.
[9]
Section
40
deals
with the circumstances in which a peace officer may arrest without a
warrant and need not be considered.
Section
43
deals with warrants of arrest. It provides:
‘
(1) Any magistrate
or justice may issue a warrant for the arrest of any person upon the
written application of an attorney-general,
a public prosecutor or a
commissioned officer of police-
(a) which sets out the
offence alleged to have been committed;
(b) which alleges that
such offence was committed within the area of jurisdiction of such
magistrate or, in the case of justice,
within the area of
jurisdiction of the magistrate within whose district or area
application is made to the justice for such warrant,
or where such
offence was not committed within such area of jurisdiction, which
alleges that the person in respect of whom the
application is made,
is known or is on reasonable grounds suspected to be within such area
of jurisdiction; and
(c) which states that
from information taken upon oath there is a reasonable suspicion that
the person in respect of whom the warrant
is applied for has
committed the alleged offence.
(2) A warrant of arrest
issued under this section shall direct that the person described in
the warrant shall be arrested by a peace
officer in respect of the
offence set out in the warrant and that he be brought before a lower
court in accordance with the provisions
of
section
50.
(3) A warrant of arrest
may be issued on any day and shall remain in force until it is
canceled by the person who issued it or,
if such person is not
available, by any person with like authority, or until it is
executed.’
[10]
Section
44
concerns
the execution of warrants of arrest. It states that a warrant issued
in terms of
s
43
‘may be executed by a peace officer, and the peace officer
executing such warrant shall do so in accordance with the terms
thereof’.
[11]
Section
50
deals
with the procedure to be followed after a person has been arrested.
Section
50(1)
provides
as follows:
‘
(a) Any person who
is arrested with or without a warrant for allegedly committing an
offence, or for any other reason, shall as
soon as possible be
brought to a police station or, in the case of an arrest by a
warrant, to any other place which is expressly
mentioned in the
warrant.
(b) A person who is in
detention as contemplated in paragraph (a) shall, as soon as
reasonably possible, be informed of his or her
right to institute
bail proceedings.
(c) Subject to paragraph
(d), if such an arrested person is not released by reason that-
(i) no charge is to be
brought against him or her; or
(ii) bail is not granted
to him or her in terms of
section
59
or
000
000">
59A
,
he
or she shall be brought before a lower court as soon as reasonably
possible, but not later than 48 hours after the arrest.’
[12]
Even when a warrant of arrest has been issued a peace officer has a
discretion as to whether or not to execute it. In
Minister
of Safety and Security v Sekhoto & another
Harms DP held that ‘[o]nce the jurisdictional facts for an
arrest, whether in terms of any paragraph of
s
40(1)
or in terms of
s
43
,
are present, a discretion arises’ and that the peace officer
‘is not obliged to effect an arrest’. And in
Domingo
v Minister of Safety and Security
Chetty J, in this court, held that the ‘trial court’s
finding that, once armed with a warrant, the arrestor . . . was
duty
bound to arrest the plaintiff without further ado, was wrong and
amounts to a clear misdirection’. The discretion to
arrest or
not obviously must be exercised properly.
[13]
In
Sekhoto
, Harms DP stated, in summary, that the discretion
must be exercised ‘in good faith, rationally and not
arbitrarily’.
Earlier in the judgment, however, he had surveyed
both South African and foreign decisions, especially English cases,
and had found
that the discretion could be attacked based on the
grounds set out – and followed consistently for over a century
–
in
Shidiack v Union Government (Minister of the Interior)
as well as on the further basis of irrationality.’
Background facts
[12]
Both plaintiffs testified at the trial. Three witnesses testified on
behalf of the Minister.
Those were: Col. Loyiso Lawrence Mdingi,
Capt. Batandwa Aaron Hanise and Detective Warrant Officer Mdepa.
These witnesses are adult
male persons.
[13]
The evidence adduced is largely a common cause. On 18 April 2016, the
plaintiffs were the employees
of OR Tambo District Municipality (the
Municipality). Mr. Sabisa served as a Councillor and Deputy
Executive Mayor for the
Municipality. Mr. Mambila served as a
Councillor and member of the Mayoral Committee responsible for
infrastructure services.
Mr. Mdepa was the Investigating Officer for
the police docket, described as Tsolo CAS 86/12/2015. The docket
pertained to the killing
of the driver for the Speaker of the
Municipality (Mr. Kompela) and the attempted killing of Mr. Kompela.
The three police witnesses
were the members of the Hawks (the
Directorate for Priority Crimes Investigation Unit of the SAPS
dealing with serious crimes referred
to it by the President). Two
suspects, Mr. Mnyanda and Mr. Mswelanto, were arrested and caused to
appear in the Tsolo Magistrates
Court on 11 April 2016 in connection
with CAS 86/12/2015. These suspects implicated the plaintiffs,
albeit in their confession
statements submitted to Mr. Mdepa.
Relying on this, Mr. Mdepa set out to arrest the
plaintiffs at the headquarters
of the Municipality situated in
Mthatha. He acted on information that a mayoral meeting was
scheduled to take place in the
municipal boardroom on 18 April 2016
at 15h00. The plaintiffs would be in attendance. He
planned to effect arrest with
the assistance of an investigation
team, comprising Mr. Mdingi Mr. Hanise, Capt. Mdebuka, Capt.
Bambelele, Capt. Hanise, W/O Mancgoba,
D/W/O Jacob, Sgt. Nkamikula,
Const. Skwatsha, Const. Mgangula, Const. Nomacibi and a few other
female officers. These police officers
were drawn from the Hawks. The
operation was high profile in nature as it involved investigating
violent clashes between political
leaders within the Municipality
that had aroused public attention.
[14]
On the day and time of the meeting, the police descended into the
venue of the meeting, found
the plaintiffs present, and arrested
them. In a convoy of five police motor vehicles, the plaintiffs
were driven to Butterworth
Crime Intelligence Offices for
interrogation, which endured from 16h30 or 17h00 to approximately
22h00. Thereafter, the plaintiffs
were driven to Mthatha
Central Police Station. Normally a trip to Mthatha takes about two
hours, hence the estimation that the
plaintiffs were locked up in the
police cells of Mthatha Central Police Station at 23h55. On 19
April 2016 at 01h35 Mr. Dzingwa,
the attorney, consulted with the
plaintiffs. They reported to the attorney that they had been
injured and were unwell. At
10h30, the plaintiffs were recorded
in the OB as having complained of body pains and that they needed
immediate medical attention.
Mr. Mambila was given an injection in
the surgery of Doctor Atkins and, thereafter, he was referred to St
Mary's Hospital where
he was admitted as a patient. Mr. Sabisa
was also taken to his doctor, and thereafter he was referred to the
same hospital.
Both plaintiffs were shackled to their hospital beds
and guarded by the police.
[15]
On 26 April 2016, the police guarding the plaintiffs abandoned their
post and, without an explanation,
left the hospital. The
plaintiffs’ attorney arrived later on that day and caused the
shackles to be removed, thus setting
the plaintiffs free. Mr. Sabisa
was transferred to Nelson Mandela Hospital, where he remained until
01 May 2016. On 28 April
2016, the plaintiffs attended the
offices of the Hawks in Mthatha to have a summons served on them in
respect of Tsolo Case No.
A551/ 2016, a case registered based on CAS
86/12/2015. On 19 May 2016 that the plaintiffs did not appear before
any court. Certain
records from Magistrates’ Court, Tsolo were
discovered which confirm their non- appearances until the case in
which they
would have been joined as the accused was finally
withdrawn. It was withdrawn against Mr. Mambila on 20 February
2016, and
against Mr Sabisa in October 2016. So, the plaintiffs were
neither joined in Case No. A551/2016 nor appeared in court under that
case. Significantly, there was never an occasion in which a court
order was made compelling them to attend Court or to commit them
to
detention in a hospital.
[16]
I will deal with the disputed facts in the course of discussion on
the issues of arrest, detention
assault, and torture. When doing so,
I will have regard to the principles for resolving factual disputes
that are set out in the
case of
Stellenbosch
Farmers’ Winery Group Ltd and Another V Martell Et Cie and
Others
[9]
.
Evaluation of evidence
against
onus
of proof
[17]
It is common cause that the arrest of the plaintiffs took place at OR
Tambo headquarters on 18
April 2016. The question of who
effected the arrest and how it was affected is not so clear from the
evidence. The plaintiffs
testified that Mr Mdingi spoke in the
boardroom informing the meeting that he was required to arrest the
plaintiffs. It is
not clear if he did inform the plaintiffs
fully about the reasons for his arrest. What he told the court was
that he interrupted
the meeting, introduced himself and his
colleagues, gave information that he was acting in terms of warrants
that were in the possession
of Mr. Mdepa and he, thereafter, handed
the proceedings over to Mr Mdepa to give effect to the warrants. The
police witness witnesses
testified that Mr. Mdepa was the arrestor.
Mr Mdepa confirmed this version, and most particularly he stated that
he showed two
warrants to the plaintiffs and told them that they were
under arrest. That having happened the plaintiffs, were ushered out
of
the meeting to the police vehicles that were parked in the parking
area. The plaintiffs disputed that the warrants were
shown to them. Mr. Hanise stated that he did not see the warrants of
arrest in the possession of Mr. Mdepa. He stated that
Mr.
Mdingi was the arrestor and that he even explained the constitutional
rights to the plaintiffs before effecting the arrest
of the
plaintiffs. The question of whether the arrest of the plaintiffs was
preceded by the execution of the warrants calls for
an answer. The
plaintiffs alleged that the warrants authorizing their arrest were
not shown to them at all. The plaintiffs told
the court that they
assumed that Mr Mdingi was the arresting officer by reason that in
the boardroom he told them that they were
wanted in connection with
the allegations of murder and attempted murder. However, their
constitutional rights were not explained
as, thereafter, the police
simply escorted them from the boardroom to the parking area where
they were caused to board in separate
vehicles that were driven to
Butterworth.
[18]
The view I take of this matter is that Mr. Mdepa was the arresting
officer in this matter. Mr.
Mdepa has, in any event, claimed to
have been the source of the making of the warrants that, contrary to
his claim, it is doubtful
that he had them in his possession at the
time of arresting the plaintiffs. In his affidavit accompanying
the warrants that
came to light after the event of arrest, the
plaintiffs sought to be joined in the prosecution because they had
been implicated
by Mr. Mnyanda and Mr. Mswelanto in the commission of
the crimes that were under investigation. There is no satisfactory
proof
that the arresting officer, Mr. Mdepa, exhibited warrants of
arrest at the time of effecting arrest, and that he explained the
plaintiffs’ constitutional rights.
[19]
The taking of the plaintiffs to Butterworth Intelligence Offices to
interview the suspects, as
Mr. Mdepa described it, defeated the
purpose of arresting the plaintiffs because their detention after the
arrest would not have
been in strict compliance with the provisions
of
s 50
of the
Criminal Procedure Act (the
CPA). That is, the
plaintiffs were not brought to a police station as soon as possible.
Instead, they were detained in Butterworth
Intelligence Offices
and only to be taken to Mthatha Police Station after approximately 6
hours. It is also not in dispute
that the warrants that Mr.
Mdepa referred to did not authorise the trip to Butterworth, be it
for interrogation or otherwise.
[20]
The detention, and arrest, of the plaintiffs seem not to have been
done to bring them before
a court within 48 hours as envisaged in
s
50
of the CPA. I make this point because the plaintiffs were
kept by the police in Saint Mary's Hospital without an application
having been brought for an order of the court to be granted to extend
the 48 hours mandatory period. It seems to me
that the
issue of detaining an arrested person in the custody of the police
without bringing him or her to court within 48 hours,
or soon
thereafter, can only be regulated using a court order as provided in
s 50
(1) (d) (ii) of the CPA
[10]
.
It cannot happen at the behest of an investigating officer. In
essence, the investigating officer affected the arrest
and detained
the plaintiffs in the police cells and Saint Mary's hospital in
shackles without the authority of the law. Such
conduct of
depriving the plaintiffs of their constitutionally entrenched right
to liberty is to be deprecated.
[21] Whether I believe,
or not, that the warrants were served and did achieve their purpose
is not the issue. The issue is whether,
assuming that the warrants
were used to effect arrest, the arrest was lawful. I have already
decided that the warrants were defective
to the extent that they did
not authorize the arrestor to take the plaintiffs to Butterworth. It
is trite law that the arrested
person may only be taken to the
nearest police station as soon as possible. In terms of the judgment
in
Weitz
, obtaining a warrant is not enough as the
arrestor is still enjoined to exercise discretion whether to effect
an arrest or
not to do so. The important consideration seems to me to
be founded on the premium that the law accords to the constitutional
right
to liberty. On the facts of this case, the three police
witnesses, or Mr. Mdepa in particular, did not exercise discretion
whether
to arrest the plaintiffs or not to do so. I accept the
submission advanced on behalf of the plaintiffs that the decision to
arrest,
rather than to summon the plaintiffs to attend court, has not
been shown by the evidence to have been necessary. Mr. Mdingi told
the court in no uncertain terms that he (or they) were known to the
plaintiffs very well and that they had maintained a cordial
relationship for many years prior to 18 April 2016. There was no bad
blood between them. There was no flight risk involved in having
to
bring the plaintiffs to justice. Simply put, the case is not
materially different from the case of
Weitz
on the facts about
the exercise of discretion to arrest on a warrant. I am of the view
that the decision to arrest on the strength
of the warrants was not
made in a lawful manner.
[22]
There are conflicting versions of the parties about the issue of
whether the plaintiffs were
assaulted whilst being kept in the
custody of the police in Butterworth Intelligence Offices. The case
of
Stellenbosch Farmers’ Winery
enjoins the court to
make a finding on the credibility of the opposing witnesses who
testified. In my opinion, the probabilities
of the matter
favour the plaintiff's case that they were assaulted and tortured by
the police in Butterworth. Support for this
finding lies in the
events that are outlined below.
[23]
The police investigators kept no record of the interaction between
them and the plaintiffs in
Butterworth. Warning statements were not
obtained from the plaintiffs. The plaintiffs were handcuffed behind
their backs whilst
being interrogated. They were not given
food. The plaintiffs were each confronted by 10 to 15 police
officers during
interrogation. Mr. Sabisa was instructed by Mr.
Hanise to take his clothes off. A motor vehicle tube was
placed
over his head. He experienced difficulty breathing due to a
tube covering his head. He was hit with fists and kicked
with booted feet on his back. Mr. Mdepa attempted to get
him to confess to the crimes of attempted murder and murder.
Mr.
Hanise kneeled him in the groin. Mr. Mdingi kept probing for a
confession statement regardless of the unsavory treatment
that the
plaintiffs were subjected to. Mr. Mambila was pressured by Mr.
Mdepa to confess. Clothes on his upper body
were removed by Mr.
Hanise. His shoes were also removed. Mr. Mdepa hit
him with an open hand on the ear. The
chair on which he was sitting
was tipped over backward, which injured his ribs and chest. He
was kicked with booted feet.
Water was thrown at him each time that
he lost consciousness. I agree with the submission that the
assault was committed
by the interrogators to get plaintiffs to
submit confession statements. The police witnesses denied these
allegations of assault
and torture that had endured for almost 6
hours. But they did little, or nothing, to tell what they
did to the plaintiffs
other than that the interviews they had lasted
for only five to ten minutes. Significantly, the plaintiffs’
complaint about
body pains as recorded in the Occurrence Book (OB) of
the police cells ended in them being admitted to Saint Mary's
Hospital. Surprisingly,
the hospital records are missing and no
explanation was proffered by any of the guards who were keeping an
eye on the plaintiffs.
The police witnesses were unable to explain
this conundrum.
[24]
Mr Mdingi was content to remove himself from the
other interrogators by stating that he was not present in the office
in which the
plaintiffs were interrogated. Mr Mdepa told the
court that all that happened in Butterworth was questioning the
plaintiffs
which stopped the moment that they told him that they
would like to submit statements to their legal representatives.
However,
this version is at odds with the statement that he also made
that Mr. Mdingi was the person who explained the constitutional
rights
of the plaintiffs in the interrogation room. Ultimately,
Mr. Mdingi was both present and absent in that room. This is
untenable.
Mr. Hanise also sought to extricated himself from
blame by saying that assaulting and torturing the plaintiffs would
not be possible
to do in the five to ten minutes of questioning of
the plaintiffs at separate sittings that aborted immediately the
plaintiffs
tendered a denial of involvement in the commission of the
crimes and advised the interrogators that they will submit their
written
exculpatory statements through their legal representatives in
due course.
[25]
In my opinion, the version of the police witnesses that they effected
lawful arrest and detention
is not acceptable. They contradicted
themselves in material respects. Numerous statements made by Mr.
Mdingi and Mr Mdepa were
contradicted by Mr. Hanise: such as that Mr
Mdingi in the OR Tambo boardroom Mr. Mdingi merely introduced the
members of the Hawks
with Mr Mdepa taking over to explain the reason
for their visit, the showing and reading of warrants of arrest of the
plaintiffs
and explaining their constitutional rights of arrest; that
Mr. Mdingi entered the interrogation room, explained the
constitutional
rights of the plaintiffs and thereafter left the room;
the interrogation started from 16h30 or 17h00 and lasted until
approximately
22h00; and that Mr Mdingi bought food for the
plaintiffs and the members of the police present at interrogation
chamber. Mr.
Hanise stated that Mr. Mdingi explained the
constitutional rights, Mr. Mdepa was never in possession of the
warrants of arrest
at the time of arresting of the plaintiffs, Mr.
Mdingi did not enter the interrogation chamber, he did not buy food
at the time
of five to ten minutes spent to question the plaintiffs
was too short and that the interrogation terminated as early as at 8
pm.
The denial that the body pains the plaintiffs complained
about, and which had been endorsed on the OB of Mthatha Central
Police Station, was not the proximate cause for their admission at St
Mary’s Hospital is unreasonable. The plaintiffs’
evidence
of assault and torture at the hands of the police in Butterworth is
countered by a bare denial on the part of Mr. Mdingi
and Mr. Hanise,
and evasiveness on the part of Mr Mdepa. The explanation for
the trip to Butterworth is not convincing at
all. For these reasons,
I, with respect, reject the version of the defendant that his members
did not subject the plaintiffs to
assault and torture. The
probabilities favour the acceptance of the plaintiffs’ version
which I find, in its essential features,
to be true.
Conclusion on the
liability issue:
[26]
What the factual findings mean for this case is the following:
(i)
Although the warrants of arrest had been obtained from the magistrate
of Tsolo they were
not executed on 18 April 2016.
(ii)
There was no lawful reason for the trip to Butterworth because the
plaintiffs were being
sought for a criminal investigation that had
commenced in Tsolo.
(iii)
The procedure that the law in terms of
s 50
(1) (a) of the CPA
permitted the police to comply with was breached. This position held
sway for the arrest with or without a warrant.
(iv)
To the extent that the plaintiffs were not caused to appear before a
court of law within 48 hours
they should not have been detained in
hospital under the shackles and the control of the police guards.
They should have been released
from police custody.
(v)
The question whether the plaintiffs were arrested with or without a
warrant and detained unlawfully
is answered in their favour.
(vi)
The probabilities of the case favour the finding that the plaintiffs
were assaulted and tortured during
interrogations in Butterworth.
Assessment of damages
[27]
On the foregoing, the plaintiffs case has been proved on a balance of
probabilities. The
defendant is vicariously liable to pay
damages on the heads as pleaded by the plaintiffs. I recap
this. Each of the
plaintiffs claims payment for damages in
respect of wrongful arrest at R2 million; wrongful detention at R2, 5
million; assault
at R3, 5 million; and for humiliation, degradation
and
contumelia
at R2 million. These are of course what has colloquially been
referred to as the globular amounts of general damages.
They
are in no way to be construed as a true measure of damages that were
suffered by the plaintiffs. Counsel for the defendant
made this plain
in his submissions. He highlighted the difficulty that the
fixing of damages may prove as the extent of damages
for the assault
was not proved by medical evidence. I did appreciate the
submission that the amounts claimed may be excessive,
and that a sum
of R250 000 for each plaintiff may be an appropriate award of
damages. Such difficulty is not atypical
of the nature of
general damages. Counsel for the plaintiff referred to certain
decided cases on past awards that may serve
as the guidelines
[11]
.
He
did this against the backdrop of the well-known legal principles, set
out by Visser & Potgieter
[12]
in:
Law
of Damages, Third Edition
.
[28]
Almost all the factors that are listed by Visser
and Potgieter apply to the circumstances of this case.
The
plaintiffs
are highly educated persons
and
were
public representatives who enjoyed high
status in both their workplace as well as in the communities they
served. I do not
doubt that the unlawful arrest and detention
for nine days caused them a lot of embarrassment and humiliation and
low self-esteem.
The arrest and detention from 18 to 26
April 2016
deprived them of their constitutional
right
to liberty and dignity. The assault caused them pain and
suffering. The damages suffered were contumacious. The
award to be made should nevertheless not enrich the plaintiffs at the
expense of the defendant, but it must be fair. The
fact that
the plaintiffs did not suffer visible injuries must be taken into
account. I believe that the past awards made
by the courts in
De Klerk
v
Minister of Police and Ndlovu
v
Minister of Police
which are not necessarily the same
but comparable to the
facts of the present matter, serve as the guides to be applied in the
discretion to be exercised by this court.
Consequently, a
sum of R400 000 for unlawful arrest and detention and R110 000
for assault, torture and
contumelia
should be reasonable
awards to be made in respect of each of the plaintiffs.
Costs
[28] There will be
an order of costs made in favour of the plaintiffs as successful
parties.
Order
[29]
In the result, the following order shall issue:
On Liability:
1. The defendant is held
liable to pay damages suffered by each of the plaintiffs
as follows:
On quantum:
2.
For unlawful arrest and detention
2.1 The
defendant to pay the first plaintiff a sum of R400 000.
2.2 The
defendant to pay the second plaintiff a sum of R400 000.
3.
For
assault, torture and contumelia
3.1 The
defendant to pay the first plaintiff a sum of R110
000.
3.2 The
defendant to pay the second plaintiff a sum of R110 000.
4.
The defendant to pay the costs of suit, including costs of two
counsel where so employed.
ZM
NHLANGULELA
DEPUTY
JUDGE PRESIDENT OF THE HIGH COURT
Appearing
for the plaintiff:
Advocate
Mullins SC
With:
Advocates
Kroon and Makiwane
Instructed
by:
Notyesi
Attorneys, Mthatha.
Appearing
for the defendant:
Advocate
Notshe SC
With:
Advocate
Magadla
Instructed
by:
The
State Attorney
Mthatha.
Heard
on:
13
June 2023
Date
of delivery:
20
June 2023.
[1]
Imprefed
(Pty ) Ltd v National Transport Commission
[1]1993
(3) SA 94 (A) at 107C-H
[2]
Shill
v Milner
1937
AD 101.
[3]
N.
Plaatjies v MinisterPolice,
Case
No.
165/2021 (03/05/2022).
[4]
Christiaan
Benjamin Weitz v Minister of Safety and Security and Others
(Case
no. 487/11) [2014] ZAECGHC 33 (22 May 2014) [Weitz 1]
.
[5]
Minister
of Safety and Security and Others v Christiaan Benjamin Weitz
(Case
no. 487/11) [2014] ZAECGHC 85 (02 October 2014)
[Weitz
2].
[6]
Minister
of Law and Order and Others v Hurley and Another
1986
(3) SA 668
(A) at 589D-G
[7]
Minister
of Safety and Security v Sekhoto And Another
2011
(1) SACR 315
(SCA) at paras. 28- 36. See also:
Gigaba
v Minister of Police and Others
[4 3469/2020) [2021] ZAGPHC55;
[2021] 3 All SA 495
(GP) (11 February
2021) at para 58-61D;
Malebe
Thema and Another v Minister of Safety and Security and Others
2021 (2) SACR 233
(GP) at para 10,16-19 and 23.
[8]
De
Klerk v Minister of Safety and Security
2021
(4) SA 585
(CC) at para. 14.
[9]
Stellenbosch
Farmers’ Winery Group Ltd and Another V Martell Et Cie and
Others
2003 (1) SA 11
(SCA) at para 5.
[10]
Section
50
(1) (d) (ii) of the
Criminal Procedure Act provides
to the effect
that for the appearance of an arrested person in court with 48 hours
to be extended the prosecutor has to make
an application before the
court.
[11]
The
cases referred to are: Minister of Safety and Security v Augustine
and Others
217 SACR 332
(SCA) at para 28, Peters v Minister of
Safety and Security 215 JDR 1088 (GP); Mgele v Minister of Police
2015 (7K6) QOD 74 (ECM);
De Klerk v Minister of Police
2021 (4) SA
585
(CC); Foster v Minister of Safety and Security 213 [6K6] QOD166
(GSJ); Schoombee v Minister of Police and Captain Lwana Adam
v
Minister of Police and Captain Lwana Yawa v Minister of Police and
Captain Lwana Bambilawu-Mona Wabokone v Minister of Police
and
Captain Lwana 2019 [7K6] QOD 515 (ECG); Hlungwani v Minister of
Police 2019 (7K6) 511 (LP), Minister of Safety and Security
vSeymour
2006 (6) SA 320
(SCA); Minister of Police v Mahleza (Case no.
106/2020] [2021] ZAECGHC 83 (14 September 2021); Ndlovu v
Minister of Police
(Case no.33237/2010) [5054/2013] [2018] ZAGPJHC
595 (11 October 2018).
[12]
Visser&
Potgieter in:
Law
of Damages, Third Edition, pp545-548 where they say the following:
‘
In
deprivation of liberty the amount of satisfactory damages is in the
discretion of the court and calculated ex
aequo
et bona
.
Factors which can play a role at the circumstances under
which
the
deprivation of liberty took place; the presence or absence of
improper motive or malice on the part of the defendant; the
harsh
conduct of the defendants; the duration and nature (eg
solitary confinement or humiliating nature) of the deprivation
of
liberty; the status ,standing, age, health and disease;disability of
the plaintiff; the extent of the publicity given to the
deprivation
of liberty; the presence or absence of an apology or satisfactory
explanation of the events by the defendant; awards
in previous
comparable cases; the fact that that in addition to physical freedom
other personality interests such as honour and
good name, as well as
constitutionally protected fundamental rights have been infringed;
the high value of the right to physical
liberty; the effects of
inflation; the fact that the plaintiff contributed to his or her
misfortune; the effect and award may
have on the public purse; and,
according to some, the view that the
action
iniuriarum
also has a punitive function.’