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[2022] ZAECMHC 38
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PM v Minister of Police (3970/2020) [2022] ZAECMHC 38 (4 October 2022)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
[EASTERN
CAPE DIVISION, MTHATHA]
CASE
NO: 3970/2020
Heard
on: 01/09/2022
Delivered
on: 04/10/2022
In
the matter between:
P[....]
M[....]2
Plaintiff
And
MINISTER
OF
POLICE
Defendant
JUDGMENT
NHLANGULELA
DJP
[1]
On 04 November 2020 the plaintiff instituted action proceedings
against the defendant
for payment of damages arising out of the
arrest of the plaintiff on 01 April 2020 and his detention for 40
hours that followed
without criminal proceedings being pursued.
Payment of damages are also being sought for assault upon the person
of the plaintiff,
defamatory statements made at the time of arrest as
well as for the attorney and client costs incurred by the plaintiff
in hiring
a legal representative to prosecute these civil
proceedings. The action is defended vigorously.
[2]
At the trial that served before me, I was advised that since the
defendant bore evidencial
onus
to justify the arrest and
detention, as admitted in the pleadings, the members of the police
have to adduce evidence to justify
the police actions as envisaged in
the provisions of s 40 (1)
(b)
of the CPA
Criminal Procedure
Act No. 51 of 1977
.
[3]
Mr Siyabulela Mputha, Mr Mziwekhaya Ntsonte and Goodwill Diko are the
employees in
the SAPS who testified on behalf of the defendant. Mr
M[....]1 K[....] M[....]2 and Mr T[....] M[....]2 were called by the
plaintiff
to testify in support of his case. Plaintiff himself also
testified.
[4]
The following facts are not in dispute. M[....]1 is the father of the
plaintiff, and
grandfather to T[....]. M[....]1 has two places of
residence, in Kokstad and Ntabankulu. At the time relevant to the
arrest and
detention of the plaintiff on 01 April 2020 he was trading
under the name and style: Aba-Koena Store, which is situated in the
district of Ntabankulu and retailing in groceies and related
products. However, on 01 April 2020 he was in Kokstad, he having
asked
the plaintiff to purchase business stock at Ohlanga
Wholesalers, Kokstad and deliver it to the Aba-Koena Store on a
bakkie. Since
the Covid 19 regulations, dated 26 March 2020, framed
in terms of the
Disaster Management Act, 2002
, restricted the
movement of persons and goods, and travelling on public roads between
the provinces including Kokstad, KZN and
Ntabankulu, Eastern Cape
plaintiff had in his possession a permit (Permit To Perform Essential
Services) drawn up in accordance
with Annexure C, Form 1 of
Regulation 11B (3)
(i)
. This permit is exhibit “A”
in this matter. Accordingly, the plaintiff bought the business stock,
loaded it on the
bakkie and travelled from Kokstad to Ntabankulu.
Such travel involved showing the permit to government officials
deployed on both
sides of the N2 Road that crosses the boarder
between KZN and Eastern Cape, which were situated near Mr Currie
Engen Garage and
Pakade Junction respectively. Upon arrival at
Ntabankulu the plaintiff found T[....], a 17 years old boy, present
at the Ntabankulu
residence. T[....] was lying on the sofa and
exhibiting symptoms of terrible flue, with features of bronchitis and
compromised
immunity system. The plaintiff immediately telephoned Dr
Jama, a family doctor running a medical private practice in Kokstad,
for
an appointment that was accepted. The plaintiff then took T[....]
into the bakkie and they both drove off to Kokstad. However, the
plaintiff never reached Kokstad as his trip came to an end at Pakade
Junction where Ntsonte arrested and caused him to be locked-up
in a
prison cell of Mt Ayliff Police Station. The plaintiff was charged
with assault and interfering with police duties arising
from an
alleged failure to produce a permit that would have entitled the
plaintiff and T[....] to pass the road block at Pakade
Junction. The
plaintiff was detained in a police cell until 03 April 2020. However,
the prosecution of the plaintiff never followed
after the date of his
release from police custody. At the time of arrest, T[....] was left
in the van and unattended by the members
of the police until his
grandfather M[....]1 arrived to fetch him and take him to Dr Jama
where he finally received treatment.
[5]
The upshot of the evidence adduced by M[....]1 is that the police at
Mt Ayliff Police
Station refused him access to his son; the situation
that left him without redress as he never had the opportunity to
obtain information
from his son about the circumstances of his arrest
and detention. M[....]1 could only meet his son upon his release from
the custody
on 03 April 2020.
[6]
The plaintiff testified that upon reaching Pakade Junction on 01
April 2020 and producing
the permit and a driver’s licence to
Mputha he was prevented from passing the road block for the reason
that he had T[....]
in his bakkie who did not have a permit.
Confronted with this problem he asked for the audience of the senior
police officer to
explain that his passage on the road block with
T[....] to seek urgent medical attention in Kokstad was permitted in
terms of Regulation
11B (1)
(a)(i)
. Having been referred to
Ntsonte and Col. Moto the request for passage was still refused. He
thereupon telephoned his father, M[....]1,
for assistance. When he
did not find his father he telephoned one Mr Pat Mgejane, a traffic
officer attached to Mt Ayliff Police
Station who advised him to leave
Pakade Junction and take an alternative route to Kokstad that did not
require him to produce permits.
As he was still engaged in that call,
and the advice he got having been overheard by the members of the
police, one of the members
(Ntsonte) approached him from behind and
grabbed the hand that was holding the cell-phone. When he protested
against such action
Ntsonte assaulted him by pushing, punching with
fists; kicking with booted feet; and hurling insults at him. When Mr
Ntsonte reached
to the gun holster around his waist, the plaintiff
dropped his cell-phone and lifted his arms stretched-up towards the
sky as a
sign of complete surrender. Many other police joined in the
assault by pulling him between the bull-bar and the front part of
Inyala
motor vehicle where Ntsonte also joined by spraying pepper
from a gun into his face, nostrils and eyes. When attempting to
protect
his face from toxic pepper spray gun. Ntsonte kicked him all
over the body, hit him with clenched fists; and in full view of
members
of the public the present hurled insults to the effect that
the plaintiff was “a piece of shit”, “a drunk”,
and “a clever man from M[....]2 family”. According to the
plaintiff the insults were defamatory to him and his family
name.
Having been subdued, the plaintiff fell to the ground when the police
hand-cuffed him and tied his legs with a leg irons.
Thereafter, he
was taken into a police vehicle on which he was transferred to Mt
Ayliff Police Station.
[7]
At Mt Ayliff Police Station the plaintiff was charged and kept in a
police cell that
had no bed, mattress or a sponge to use at night.
The cell had the lights switched off during the day and night times.
Although
the cell measure approximately 5 x 10 square metres he was
kept there with 27 other inmates under the circumstances of
intolerable
congestion. The food supplied was of substandard /
unhealthy quality. He described his ordeal as having been traumatic
that his
memory relived that experience well after he was released
from the police cell on 03 April 2020.
[8]
The plaintiff stated that he consulted Dr Jama upon his release from
police custody.
Annexure “D” is the supporting medical
report that was admitted in evidence by consent between the parties.
He also
told the court that his permit and driver’s licence
that he had given to the police was never returned to him. He stated
that the police conduct was unlawful, and that he would like to be
compensated for the arrest, detention, assault and defamation
in the
sum of R200 000,00; and R10 000,00 for the costs of hiring
the services of a lawyer in prosecuting the claims
on his behalf.
[9]
T[....]’s evidence confirms the evidence of the plaintiff in so
far as reference
is made to him. In particular, he stated that after
the plaintiff parked the bakkie at the road block and alighting to
talk to
Mputha, Ntsonte and other policemen, the plaintiff never
returned. Whilst the plaintiff was engaging with the police he,
T[....],
was situated at a vantage position from which he saw the
plaintiff being kicked by six to seven members of the police force.
He
also stated that Mputha, the first policeman that the plaintiff
spoke to at the road block, was told that he did not have a permit
because he was sick and being rushed to Kokstad for a consultation
with Dr Jama. During that interaction the plaintiff did hand
over to
Mputha a permit and the driver’s licence. According to T[....],
the passage to Kokstad was prevented for the reason
that the
plaintiff could not produce his, Tebogo’s permit. When the
plaintiff had been whisked away on a Polo Vivo from the
road block
area he used his cell-phone to telephone his grandfather and reported
about the fact that he had been left alone in
the bakkie. When
M[....]1 arrived at the road block he explained to the police that
he, T[....], did not have a permit, and was
in need of urgent medical
attention by a family doctor. Eventually, the bakkie was driven by
Masupa, a relative who had been brought
along by M[....]1, not only
across the Pakade Junction but also across the road block situated in
the KZN area.
[10]
The evidence of T[....] was not challenged when he testified under
cross examination. The same
happened when M[....]1 was cross
examined. The only matter that was put to T[....], which he denied,
was that the plaintiff had
pushed and / or assaulted the police.
M[....]1 proffered no comment to the police version of assault for
the reason that he was
not at Pakade Junction when the alleged
incident occurred.
[11]
Certain issues were raised on behalf of the defendant when the
plaintiff was cross-examined.
It was put to the plaintiff that the
Regulations did not authorize transportation of sick people from the
Eastern Cape and KZN,
there was no need for medical care to be
provided to T[....] in Kokstad as there was a doctor in Ntabankulu,
Dr Issa, who was available
to attend to Tebogo; and that the care of
T[....] was not a medical emergency that required a trip to Kokstad.
The plaintiff answered
that there was no medical doctor available in
Ntabankulu on 01 April 2020, including Dr Issa. He disputed the
version that the
Regulations placed a blanket prohibition upon
referral of medical emergencies across provincial borders.
[12]
Further, it was put to the plaintiff that he had to be arrested by
Ntsonte because he had pushed
him. To this, the plaintiff answered
that when Ntsonte grabbed him from behind, as he was speaking on the
phone and over-heard
that he was going to reach Kokstad despite the
road block, he protested that Ntsonte had no right to take away his
cell-phone and
must, therefore, leave him alone. At that juncture
Col. Moto told Ntsonte to leave the plaintiff alone. The plaintiff
insisted
that he was prevented from proceeding to Kokstad simply
because a permit for T[....] was not available, despite the fact that
he
had produced exhibit “A” together with a driver’s
licence. The plaintiff repeated his evidence in chief that he
was
assaulted and injured by the police and that exhibit “D”
was the proof that he was injured.
[13]
Mputha testified that he stopped the plaintiff’s bakkie at the
road block, observed that
the plaintiff had a passenger sitting in
the cab next to him; approached the plaintiff and asked him to
produce a permit; which
he did not do. He asked the plaintiff about
his destination and got to know that plaintiff was driving to
Kokstad. Having been
asked by the plaintiff to refer the issue of
non-production of the permit to Ntsonte he did so. In turn, Ntsonte
felt that it was
necessary to refer the plaintiff to Col. Moto.
Finally, both Ntsonte and Moto told the plaintiff that he will not be
allowed to
pass the road block. Then the plaintiff pushed Ntsonte,
pulled out a cell-phone and begun to take pictures of Ntsonte, the
conduct
that infuriated Ntsonte. Upon being stopped from taking
pictures, the plaintiff’s ran towards the Inyala police vehicle
that
was situated at a distance of 10 metres away. Ntsonte ran after
the plaintiff until they reached the area at the back of Inyala
where
he arrested the plaintiff for assaulting the policeman and failing to
produce a permit. Mputha denied that the plaintiff
had been assaulted
and his movement confined between the bull-bar and the front section
of the Inyala vehicle. He also told the
court that T[....] was not
prevented from gaining access to a doctor in Koskstad due to
emergency medical attention that he required.
However, according to
Mputha, T[....] would have also been required to produce a written
authority of the doctor or a Clinic to
pass the road-block. If not,
T[....] would have had to satisfy the road-block personnel that he
was sick and in a state that required
deviation from the prescript of
a permit issued in terms of the Covid regulations. However, Mputha
disavowed knowledge whether
T[....] was sick or not for the reason
that his attention was not brought to the condition of T[....]. He
accepted the fact that
M[....]1 had arrived at the road-block and
took T[....] to Kokstad without T[....] having been checked or his
permit / authorization
produced. He also accepted the fact that the
plaintiff had passed earlier on the road-blocks at both KZN and
Pakade when delivering
stock to Aba-Koena Store. The witness stated
that the plaintiff had pushed, not assaulted, Ntsonte.
[14]
Ntsonte testified that he was present at the Pakade road-block when
Mputha brought the plaintiff
to him about an argument relating to a
permit that the plaintiff would not produce when asked to do so. He
referred the plaintiff
to Col. Moto who told the plaintiff that he
would not be allowed to pass the road-block without an official
permit having been
produced. According to him the fact that T[....]
was in need of urgent medical attention was not revealed to him.
However, he did
become aware that the plaintiff had a passenger in
his motor vehicle. When the plaintiff was not happy with the order
that he was
not allowed to go to Kokstad, he begun making a
cell-phone call and he, thereafter; returned and took photographs of
him without
permission, uttered words that he was going to Kokstad
notwithstanding the police stoppage, and proceeded towards his
vehicle that
was parked at a distance of 20 metres away. However,
when the plaintiff was announcing that he was going to Kokstad he
pushed him
(Ntsonte), the conduct that prompted the arrest. Ntsonte
denied that he assaulted the plaintiff in any manner, including that
he
had sprayed pepper into his face, eyes and nostrils. Ntsonte also
denied the version of the plaintiff that he sustained injuries
whilst
at the hands of the police and locked-up in a police cell without
medical intervention.
[15]
Ntsonte accepted the fact that T[....] would have been allowed to
pass the road-block as he was
very sick. He accepted that the permit
of the plaintiff, exhibit “A, would have entitled the plaintiff
to pass the Pakade
road-block had that permit been produced to him
and Mputha. He denied that he and other members of the SAPS assaulted
the plaintiff.
But he accepted that the medical certificate of the
plaintiff, exhibit “D” does show that he sustained
certain injuries
due to assault. His attention was brought to the
inconsistencies between two written statements, annexures “E”
and
“F” he had made for the docket dated 01 April 2020
and to the Ipid investigators on 06 July 2021 showing that the
plaintiff
had co-operated with him and that he had to be subdued for
resisting arrest respectively.
[16]
Sergeant Goodwill Diko’s evidence is that when he interviewed
the plaintiff on 02 April
2020 he was not told that plaintiff was
injured by the police at the time of arrest and detention on the
previous day. He also
testified that the docket placed at his
disposal did not have in it the permit of the plaintiff, exhibit “A”.
When
asked under cross examination as to how he got the information
that there was an issue about the production of a permit at the
road-block he answered that he got it from the charge sheet. He also
stated that he only talked to the plaintiff about a charge
of assault
against the policemen because the plaintiff did not report to him
that he was assaulted.
[17]
It was submitted on behalf of the plaintiff that the evidence of the
plaintiff and his witnesses
is probable, and therefore it supports
the version that the plaintiff was arrested and detained unlawfully;
he was assaulted by
the members of the police; and that he was
defamed by the insults that were hurled at him in the presence of
many people and with
intention to injure his personality.
[18]
The court was asked to reject the evidence of the defendant’s
witnesses for reasons that
their evidence is contradictory in
material respects; more particularly in that:
(a)
Mputha and Ntsonte testified that
compliance with Regulation 11B (1)
(a)(i)
provides that the medical urgency of
T[....] required personal assessment of the sickness or a certificate
by a private doctor or
Clinic. They also say that they would be
required to telephone the doctor to verify the sickness.
(b)
In Ntsonte’s written statements it
appears that, on the one hand, the plaintiff was not touched by any
of the members of the
police, but on the other hand there was
personal contact between them.
(c)
Diko stated that the plaintiff did not have
a permit and that the plaintiff did not have visible injuries when he
was locked-up
in a police cell on 01 April 2020. However, Diko failed
to record those crucial statements which were reported to him by the
plaintiff.
[19]
It was argued strenuously on behalf of the defendant that the
evidence of the plaintiff is not
worthy of credit in that the
plaintiff refused to produce the permit; was evasive and exaggerated
the manner in which the events
unfolded, and his version of assault
by the police was uncorroborated. With regard to the defendant’s
witnesses it was submitted
that their evidence may be accepted as the
essential features thereof were true. It was submitted further that
the arrest and detention
was justified in law; and that the claim
based on defamation is not proved by the evidence.
[20]
It is common cause that the disputed versions of the parties are not
reconcilable and therefore,
the test adumbrated in
Stellenbosch
Farmers’ Winery Group Ltd and Another v Martell et Cie and
Others
2003 (1) SA 11
(SCA) finds application. Based on this case
this court will evaluate the credibility, reliability and probability
/ improbabilities
of the parties’ versions so as to be
determined if the
onus
thrust upon the plaintiff to prove
unlawfulness of arrest and detention, assault and defamation claims
has been discharged.
[21]
The defence in terms of
s 40
(1)
(b)
of the
Criminal Procedure
Act 1977
that the arrest and detention took place for the reason that
the plaintiff had committed crimes of assault and interference with
police duties. Therefore, for the plaintiff to be arrested and
detained he must be shown to have committed crimes with which he
was
charged in front of Mputhi and Ntsonte. A failure to produce a
Regulation 11B
permit, allegedly on the basis that Mputhi did not see
one is not an offence as in its absence the plaintiff would simply
not be
permitted to pass the road-block. But the arrest by Ntsonte
happened because, according to him, the plaintiff interfered with his
duties and assaulting him. On the facts of this case, interfering
with police duties
presupposes that the
plaintiff prevented Ntsonte from attending to the road-block. But the
evidence does not support this claim.
Since the discussions about the
plight of the plaintiff to take T[....] to Dr Jama took place far
away from the road-block line,
Mputhi having removed himself from it
to connect the plaintiff to Ntsonte and Moto, the act of preventing
police duties never occurred.
The plaintiff merely told the police
that he was going to use an alternative route, whereupon, he walked
towards his vehicle that
was parked far-away from the road-block
area. On the terms of the police witnesses arrest did not follow
interference but the complaint
that the plaintiff assaulted Ntsonte
.
No such proof exists in this case as the entire
evidence, including the written police statements by Ntsonte, only
speaks of physical
contact between the plaintiff and Ntsonte that was
provoked by the taking of photographs or the telephonic conversation
overhead
by Ntsonte that the plaintiff would still be able to reach
Kokstad using a different route. The pushing could only have happened
when the plaintiff was preventing dispossession of his cell
-phone
by Ntsonte. The explanation for arrest is far from satisfactory. As
there was no commission of a crime by the plaintiff,
I reject the
version of the defendant that reasonable grounds existed that are
envisaged in
s 40
(1)
(b)
of the CPA. I find support for this
in the fact that the plaintiff has, inferentially, proved that he was
assaulted by the police.
The injuries that he sustained, proved by
the medical record, bolster his version. Diko’s evidence on the
issue of visible
injuries could only have been led to confuse, rather
than to clarify matters. In light of this, it is not conceivable that
the
interviewing of the plaintiff about the material evidence of
absence of visible injuries and a permit in the docket would have
ended without recordal of such evidence in a written statement. It is
not surprising that the outcome thereof was not recorded by
Diko. It
is Diko who stated that the plaintiff gave a version of events. But
the absence of such material events in the warning
statement that was
administered by Diko leads to the conclusion that Diko tailored his
evidence merely to bolster the version of
Ntsonte.
In
any event, Diko’s evidence cannot trump that of the plaintiff
because it was never put to the plaintiff when he testified.
The
evidence of the plaintiff that Moto warned Ntsonte for bad conduct
and Mputha’s evidence that Ntsonte was not assaulted,
but
pushed, counts very much against the credibility of the version of
defendant’s witnesses that the plaintiff committed
crimes for
which he had to be arrested and detained. In my opinion, the
contradictions, inconsistences and the resultant improbability
of the
evidence adduced by the defendant’s witness are not
insignificant. The defendant’s witnesses were simply not
truthful to the court. I believe the version of the plaintiff as
being a reflection of truth – see the
case of
Jagers
at 440G.
[22]
The unchallenged evidence of T[....] is that he did see the members
of the police at a reasonable
distance of 20 – 25 metres away
assaulting the plaintiff by kicking with booted feet. This evidence
is crucial and revealing
in that its admission must water down the
version of the defendant’s witnesses that the police members
did not assault the
plaintiff. Therefore, not only are the
defendant’s witnesses incredible but they are unreliable on the
central version that
the plaintiff was arrested for assaulting the
police and interfering with their duties. The plaintiff’s
version that he was
also orally abused by Ntsonte in a way that was
demeaning to his personality and the reputation of his family is not
a stand-alone
feature of the conduct of the police and that day. The
submission that the claim based on defamation of character has not
been
proved, yet it had been pleaded pertinently and supporting
evidence of the plaintiff adduced without any challenge, cannot be
sustained.
That the plaintiff was not granted police bail and only
kept in a police cell for 40 hours without a reason given as to why
he
was not prosecuted speaks volumes not just about the abuse of the
plaintiff’s constitutional rights that are protected under
ss
10 (dignity) and 12 (freedom) of the Constitution, 1996 but also the
absence of justification for the arrest and detention of
the
plaintiff.
[23]
Although the evidence led in this matter does prove that the
plaintiff’s permit and driver’s
licence were taken by the
police, and order for the return thereof is not competent because
those exhibits were not recorded in
the appropriate register of the
defendant.
[24]
All that said, the plaintiff as an
onus
bearing party has
succeeded in proving on a balance of probabilities that:
(i)
the arrest and detention was unlawful;
(ii)
the police members assault him;
(iii)
the police member(s) defamed his character;
(iv)
legal expenses were incurred towards
vindicating the rights of the plaintiff during the time of arrest and
detention.
[25]
The liability issue having been answered in favour of the plaintiff,
it remains for the court
to address the issue of
quantum
of
damages to be paid. I do so below.
[26]
In terms of the plaintiff’s particulars of claim, in para 9,
quantum
is pleaded as follows:
(a)
R150 000,00:
for assault;
(b)
R 50 000,00:
for unlawful arrest;
(c)
R150 000,00:
for unlawful detention;
(d)
R 10 000,00:
for lawyer’s fees incurred in the criminal case.
___________
Total:
R510 000,00
[27]
Based on all the recognized principles that are currently applied by
the courts in fixing reasonable
quantum
for general damages, I
am of the opinion that a total sum of R240 000,00 is an
appropriate award to be made. I justify my
conclusion as follows:
(a)
Assault injuries as reflected on exhibit
“D” are the kicking on the body; spraying into the face,
nostrils and eyes
with a spray gun; which resulted in pain on the
chest, left shoulder, left lower leg from ankle to the calf muscle
and achilles
tendon and on the right lower leg. There were also minor
injuries (chipping) on the head. Psychological harm was also suffered
by the plaintiff. There was also an element of
contumelia
suffered due to maltreatment. I estimate damages for these injuries
in the sum of R60 000,00;
(b)
Unlawful arrest and detention for 40 hours
with
contumelia
should be a total sum of R120 000,00. In other words, separating
arrest from detention is not appropriate;
(c)
The damages for defamation should be fixed
at R50 000,00;
(d)
Fees incurred in the magistrates’
court may reasonably be fixed at R10 000,00.
[28]
The defendant shall pay the costs of the trial at the High Court
scale.
[29]
In the result the following order shall issue:
1.
The defendant is liable to
compensate the plaintiff for unlawful arrest and detention; assault;
defamation and legal fees (legal
representation during arrest and
detention) in a total sum of R240 000,00.
2.
The defendant to pay the costs of
suit.
Z
M NHLANGULELA
DEPUTY
JUDGE PRESIDENT OF THE HIGH COURT,
MTHATHA
Counsel
for the plaintiff:
: Adv. J.L.
Hobbs
Instructed
by
: JA LE ROUX ATT.
MTHATHA.
Counsel
for the defendant :
Adv. J.J. Bembe
Instructed
by
: State Attorney
MTHATHA.