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[2022] ZAECMKHC 79
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Andrews v Minister of Police (CA233/2021) [2022] ZAECMKHC 79 (18 October 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, MAKHANDA)
NOT
REPORTABLE
Case
no: CA233/2021
In
the matter between:
CLAYTON
ANDREWS
Appellant
and
MINISTER
OF POLICE
Respondent
JUDGMENT
Govindjee
J
[1]
The appellant claimed damages for an
alleged assault by members of the South African Police Service
(SAPS), acting within the course
and scope of their employment with
the respondent, on 25 March 2014. According to a medico-legal report
accepted into evidence,
he suffered injuries to his right knee, right
wrist, right shoulder and right elbow, as well as acute
post-traumatic shock. The
respondent denied any assault by its
employees and claimed that the appellant had sustained any injuries
prior to his arrest.
[2]
The respondent, in replying to a request
for trial particulars, accepted that ‘member(s) of the South
African Police Service
did handled the Plaintiff by grabbing him and
put him down to the ground in an attempt to control him’ (sic).
In terms of
an amended plea, the respondent indicated that its
members had used a degree of force as was reasonably necessary to
defend themselves
or to restrain or search the appellant. The
appellant alleged that the assault took the form of being dragged out
of a classroom,
being thrown to the ground and tramped by a police
officer.
[3]
The presiding magistrate drew an adverse
inference from the appellant’s failure to call witnesses and
from his description
of events. The magistrate also found that the
injuries sustained were, on the probabilities, sustained as a result
of a fall rather
than an assault. This followed the magistrate’s
attempt to evaluate the irreconcilable versions of the parties as to
the
likely cause of the injuries.
[4]
There is a presumption that the trial
court’s evaluation of the evidence is correct and it will only
be disregarded if it
is clearly wrong. The trial court has advantages
over an appellate court in seeing and hearing the witnesses and in
being steeped
in the atmosphere of the trial, having had the
opportunity to observe demeanour. There may be a misdirection of fact
by the trial
magistrate where the reasons are either on their face
unsatisfactory or where the record shows them to be such. There may
also
be a misdirection where, though the reasons as far as they go
are satisfactory, the presiding officer is shown to have overlooked
other facts or probabilities. The appellate court is then at liberty
to disregard the court a quo’s findings of fact, even
though
based on credibility, and to come to its own conclusion on the
matter. Where there has been no misdirection on fact by the
trial
magistrate, the presumption is that their conclusion is correct and
the appellate court will only reverse it where it is
convinced that
it is wrong.
[5]
In
this case the magistrate misdirected herself in her assessment of the
probabilities.
[1]
This is
evinced by the drawing of an adverse inference against the appellant
for failing to call his mother and the teacher in
the classroom in
support of his version. The magistrate did so without applying the
applicable test for drawing an adverse inference.
There was, for
example, no consideration that the teacher would have been equally
available as a witness to the respondent. Whether
the teacher would
have been in a position to elucidate the facts was also not
considered. The availability of the appellant’s
mother was also
not canvassed during the trial, despite the appellant indicating that
she was sick. In short, the position of the
two potential witnesses
was not interrogated and no inference unfavourable to the appellant
could properly be drawn.
[2]
[6]
The
magistrate also misdirected herself in finding that the force used to
bring the appellant to the ground was not ‘sufficient
to
constitute an unlawful act of assault’ and that ‘the
interference with his bodily integrity was justified in the
circumstances where the police were of the view that he was possibly
armed’. In coming to this conclusion, the magistrate
gave no
consideration to the wording of Section 27(1) of the Criminal
Procedure Act, 1977,
[3]
(‘the
Act’) which provides, in part:
[4]
‘
A
police officer who may lawfully search any person or any premises …
may use such force as may be reasonably necessary to
overcome any
resistance against such search …’
[7]
By time the search took place, any
resistance on the part of the appellant had crumbled. The
magistrate’s approach ignores
Humphries’ evidence that he
had engaged with the appellant for some 15 to 20 minutes and had
managed to convince him to come
out willingly, having asked him to do
so on approximately three occasions. Humphries advised the appellant
that he was a police
officer and nothing would happen to him when he
exited the classroom. Having done so of his own free will, he was
physically ‘taken
down’ without being asked. This is
consistent with Humphries’ written statement that ‘the
police were forcing
him to go to the ground to search him for a
possible firearm in his possession’.
[8]
Given these misdirections, this court is in
a position to disregard the court a quo’s findings of fact,
even though based
on credibility, and come to its own conclusion on
the matter. This court’s analysis of the material dimensions of
the evidence
follows.
[9]
The appellant was stopped by police in an
unmarked vehicle in Gelvandale, and fled the scene on foot. Constable
Holster was following
the appellant at close quarters, so much so
that he was able to describe what the appellant had been doing with
the bag he was
carrying. On his version, he only lost sight of him
for a time once the appellant had entered the school premises and was
running
in the corridors of the school. During the chase he was alone
behind the appellant. His pocket book entry and report made
contemporaneously
made no reference to the appellant having fallen to
the ground during the chase. Holster could only speculate during the
trial
that the appellant might have fallen during the chase. His
state of mind was that the appellant was still a danger, carrying a
bag with unknown contents and possibly armed. He testified that he
acted in the interests of his own safety ‘and for the safety
of
the people around me … I am in direct contact, that is what I
am trained to do, to neutralise a dangerous situation,
which it was
at that stage for me …’ He held a gun while doing so and
was poised to counter-act any actions on the
part of the appellant.
[10]
As for Fritz, his testimony was correctly
criticised by the magistrate for its vagueness. Yet the magistrate
failed to consider
that evidence together with the evidence of
Holster and the appellant in assessing the probabilities. Fritz’s
testimony was,
in material respects, unreliable. The record reflects
that he was a particularly poor witness. He stated that he saw the
appellant
fall somewhere outside the school while he was in a car
with Slater. Yet he and Slater had driven around the school in order
to
prevent the appellant from exiting the school on the other side
from where the appellant had entered that premises. How Fritz could
then have seen the appellant falling was not properly canvassed
during evidence. The magistrate’s acceptance of that version
also ignores the reality that Holster was pursuing at fairly close
quarters, as confirmed by Fritz, and saw no such fall outside
the
school premises. On Fritz’s initial version, Holster was
running behind the appellant at the time of the fall somewhere
in a
concrete quadrangle and should have observed the fall clearly. Later
he backtracked on this aspect, initially saying that
he had not seen
Holster at the time and then conceding that he could not recall
aspects of what had occurred. Had the appellant
fallen in an open
space outside the school buildings, and given the suggested nature of
the fall, it is likely that Holster would
have been able to catch and
apprehend the appellant at that moment. The record reflects clearly
that the ‘tactical’
portion of Holster’s chase was
only inside the school premises, where Holster lost sight of the
appellant while he ran in
the cloisters. At that stage there were no
other police officers in the vicinity. Fritz’s testimony that
he saw the appellant
fall hard onto concrete outside the school
premises, somewhere towards the back side of the school, while still
in the vehicle
outside the school premises, must be rejected.
[11]
Humphries rightly conceded during
cross-examination that a degree of force was used. He also testified
that there was no threat
to any of the police officers on the scene
when the appellant exited the classroom. The appellant did so in a
non-suspicious manner,
with his hands visible. Three armed police
officers were present at that moment. Their firearms were not drawn,
indicating that
the nature of the discussion with the appellant while
he was in the classroom was such that there was no sense that he
posed any
danger. The police did not expect there to be any violence
when the appellant exited the classroom. As Humphries acknowledged,
the appellant could then simply have been instructed to lay on his
stomach in order to be searched, as opposed to a rigorous application
of the Standard Operating Procedures in these circumstances. Instead,
he was, to use the words used by Holster, grabbed on his
body and put
down on the ground, while Holster screamed at him and kept his hand
on him.
[12]
It is trite that an assault violates a
person’s bodily integrity. A person who has been assaulted
enjoys a cause of action
based on the
actio
iniuriarum
. Every infringement of the
bodily integrity of another is prima facie unlawful. It is for the
plaintiff to prove the fact of physical
interference. The plaintiff
must, generally speaking, allege and prove facts which prima facie
and objectively indicate an assault.
The onus of alleging and proving
an excuse or justification for the assault rests on the defendant.
The onus lies on a defendant
who admits the ‘assault’ to
prove the lawfulness of the ‘assault’.
[13]
It is clear that the appellant had
surrendered to the police by time he exited the classroom. He was
certainly not resisting a search
of his person. The manner in which
he was forcibly manhandled amounts to an assault without
justification. Put differently, it
was simply unnecessary for the
appellant to be grabbed and put to the floor in the manner in which
this occurred. This amounts
to a contravention of s 27(1) of the Act.
The remaining issue is to determine whether the harm suffered by the
appellant is attributable
to that wrongful and intentional conduct.
[14]
The injuries suffered by the appellant on
the day are undeniable given the J88 report. The appellant testified
as to the cause of
those injuries. They are, as Humphries noted, of
the kind that may well have resulted from forceful manhandling onto a
concrete
floor. There is no acceptable evidence to gainsay that
explanation, the suggestions of a trip and fall during the chase
amounting
to conjecture. On the probabilities, the physical injuries
suffered by the appellant were caused by his unnecessary treatment at
the hands of Holster when he exited the classroom. This entitles him
to an award of damages.
[15]
The appellant claimed R80 000,00 in
damages. This court has accepted, on the probabilities, that he was
forcibly pushed to
the ground in a manner that caused abrasions to
his right knee, wrist, shoulder and elbow. He also experienced shock
as a result
of his ordeal, which occurred in view of members of the
public. This court is obliged to consider, inter alia, the nature,
extent
and degree of the affront to his dignity and bodily integrity.
An appropriate award must also be tempered with restraint and a
proper regard to the value of money in order to avoid extravagant
redress. Leaving aside the temporary shock, the injuries were
nothing
more than abrasions that would have been quick to heal. Ultimately,
the damages awarded must be commensurate with the injuries
inflicted,
bearing in mind these realities and the facts of the case. In all the
circumstances, an amount of R50 000,00 is
fair and reasonable to
both parties.
[16]
The appellant has succeeded in his appeal
and is entitled to costs.
Order
[17]
The following order will issue:
1.
The appeal is upheld with costs.
2.
The order of the court a quo is replaced
with the following:
‘
1.
The defendant is ordered to pay the
plaintiff the amount of R50 000,00 as and for damages, with
interest thereon calculated at the legal rate per annum
tempore
morae
from date of the order until date
of final payment.
2.
The defendant is ordered to pay the plaintiff’s party and party
costs, calculated at the legal
rate per annum from 14 days from date
of taxation until date of payment.’
A.
GOVINDJEE
JUDGE
OF THE HIGH COURT
I
Agree
ZM
NHLANGULELA
DEPUTY
JUDGE PRESIDENT OF
THE
HIGH COURT
Heard:
08 September 2022
Delivered:
18 October 2022
Appearances:
Appellant’s
Counsel:
Adv
DS Bands
Instructed
by:
N N Dullabh & Co
Attorneys
for Appellant
5
Betram Street
Makhanda
Email:naran@dullabhs.co.za
Respondent’s
Counsel:
Adv F Petersen
Instructed
by:
The State Attorney
29
Western Road
Central
Port
Elizabeth
[1]
One
of the grounds of appeal is that the magistrate erred in rejecting
the appellant’s evidence in respect of his assault.
[2]
See, in general,
HAL
obo MML v MEC for Health, Free State
2022 (3) SA 571 (SCA).
[3]
Act
51 of 1977.
[4]
S
49(2), dealing with an arrestor’s attempt to arrest a
resisting and / or fleeing suspect, is couched in similar terms.