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[2022] ZAECELLC 28
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Qanqane v Minister of Police (1407/2021) [2022] ZAECELLC 28 (20 October 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, EAST LONDON CIRCUIT COURT)
CASE
NO. 1407/2021
In
the matter between:
XOLANI
QANQANE
PLAINTIFF
And
MINISTER
OF
POLICE
DEFENDANT
JUDGMENT
GQAMANA
J:
[1]
Central to this action is an allegation of an infringement of the
plaintiff’s
[1]
rights to
liberty, good name and reputation.
[2]
That arises against the following background: on 16 June 2014,
Warrant Officer
Swanepoel
and Sergeant
Fredericks
who are the members of the South African Police Services (‘SAPS’)
arrested the plaintiff for reckless and negligent
driving and
intimidation. Following such arrest, he was detained at Fleet Street
police station in East London and was released
the following day, ie
17 June 2014. He was warned to appear in court on 19 June 2014. On
the latter date, the aforementioned charges
against him were
withdrawn. Resentful of the actions of the abovementioned police, the
plaintiff caused summons to be issued against
the Minister of Police,
the defendant, seeking to hold the latter vicariously liable for the
alleged wrongful arrest. The matter
proceeded before me on both
merits and quantum and the plaintiff claimed an amount of R800 000
under two separate heads of damages,
namely, general damages and
unlawful arrest.
[3]
[2]
The plaintiff’s case as pleaded in his recent amended
particulars of claim is
that, the aforementioned members of SAPS
wrongfully and unlawfully arrested him for an alleged reckless and
negligent driving and
intimidation. The plaintiff contends that such
arrest was wrongful and unlawful because he committed no offence and
even if he
did, it was not an offence that he ought to have been
arrested and detained for.
[4]
According to his pleadings, at the time of his arrest at or near St
Peters and N2 Road, Southernwood, his motor vehicle had broken
next
to the road, and he was assisted by one, Mr
Mhlambi
,
another taxi driver who was driving a Nissan Livina. As a result of
such arrest, he suffered damages as set out in paragraphs
12.2 and
12.3 of the amended particulars of claim.
[3]
The defendant in resisting the plaintiff’s claim pleaded that,
the arrest was
lawful and authorised by law in terms of s 40 (1) (a)
of the Criminal Procedure Act 51 of 1997 (the CPA) which empowers a
peace
officer to arrest any person who commits or attempt to commit
any offence in the presence of the arresting officer. The defendant
contends that that the plaintiff committed the offences of reckless
and negligent driving and intimidation in the presence of the
arresting officer. The defendant specifically pleaded that, Sergeant
Fredericks
and
Swanepoel
had observed the plaintiff driving his vehicle and blocking the path
of Mr
Mhlambi
’s
vehicle, preventing the latter from driving forward to his
destination
[5]
and was also
threatening to assault him. Sergeant
Fredericks
and
Swanepoel
had to intervene and prevent the plaintiff from assaulting Mr
Mhlambi
.
The defendant also denied that the plaintiff suffered by the damages
as pleaded.
[4]
Glaringly clear from the pleadings and the pre-trial minutes, the
plaintiff’s
arrest was admitted and that, both Sergeant
Fredericks
and Warrant Officer
Swanepoel
were acting
within the course and scope of their employment by the defendant.
Further, it was admitted that the arrest was effected
without a
warrant and based on that, the defendant was saddled with the
onus
to prove the lawfulness of such arrest.
[5]
Further from the pre-trial minutes,
[6]
the issues for determination as agreed between the parties were for
inexplicable reasons recorded as if the defence raised by the
defendant was based on s 40 (1) (b) of the CPA. In truth and having
regard to the pleadings, the real issues are whether the plaintiff’s
arrest was wrongful and unlawful, and if so, the appropriate amount
of damages suffered by the plaintiff consequent thereto. Because
there was no separation of merits and quantum, the
onus
to prove the damages was on the plaintiff.
[6]
Only two witnesses testified at trial, the plaintiff and Sergeant
Fredericks
.
Upfront, let me state that their evidence is like water and paraffin,
its mutually destructive, save for the date, place of the
arrest and
detention and the date of his release. As a result, in my assessment
of the probabilities of the versions at my disposal,
the approach
that I intend to follow is that set out in
National
Employers General Insurance Co. Ltd v Jaggers
,
[7]
by
Eksteen
AJP (then) that:
“…
in any
civil case, … the onus can ordinarily only be discharged by
adducing credible evidence to support the case of the
party on whom
the onus rests on [the defendant] as in the present case, and where
there are two mutually destructive stories, [the
defendant] can only
succeed if he satisfies the court on a pre-ponderous of probabilities
that his version is true and accurate
and therefore acceptable, and
that the other version advanced by [the plaintiff] 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
defendant’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
defendant], then the court will
accept his version as being probably
true. If however the probabilities are heavily balanced in the sense
that they do not favour
the plaintiff’s case anymore than they
do the defendant’s, [the defendant] can only succeed if the
court nevertheless
believes him and is satisfied that his evidence is
true and that [the plaintiff’s] version is false
”
[7]
The plaintiff testified that on the day in question, at approximately
10h00 am, he
was driving his vehicle, a white Toyota corolla sedan
from Steers in Oxford Street, East London. He was a taxi owner /
driver at
the time, but he was not on duty. His vehicle was giving
him mechanical problems in that, it would simply stall after driving
500
metres to a kilometre. He suspected a blockage in the carburetor
or petrol pump. He decided to drive his vehicle from Steers and
had
no specific destination in mind.
[8]
As he was driving on the N2 to Butterworth, it gave him the same
problem and he had
to pull it off the road, next to what he called
“
something like a bus stop
” and he sat there not
knowing what to do. While still there, a Nissan Livina stopped behind
him and he immediately recognised
the driver of this vehicle as one
of his colleagues, Mr
Mhlambi
. He approached Mr
Mhlambi
and explained to the latter his problem. At that moment, Mr
Mhlambi
was in the driver’s seat and loading hitchhikers. Mr
Mhlambi
told the plaintiff that the problem with the latter’s vehicle
could be a petrol pump or a carburetor. As he was talking to
Mr
Mhlambi
, an unmarked police vehicle, a double cab bakkie,
pulled up and there were three police in full uniform inside it, an
african female,
a coloured male and a white male.
[9]
Without uttering a word, the police arrested him and handcuffed him
with cable ties
from the back. No explanation was given to him of the
reasons of his arrest. After his arrest, the police put him at the
front
passenger seat of their double cab bakkie with his hands still
on handcuffs. He had difficulty to sit due to his body stature,
because he is a huge and relatively tall man loaded with extra
kilograms around his abdomen. The police took a statement from Mr
Mhlambi
and also asked him his destination, which he responded
that he was going to Mthatha. In the course of taking such statement,
hitchhikers
were boarding onto Mr
Mhlambi
’s vehicle and
thereafter it drove off. One of the hitchhikers said “
Oh
shame what has this businessman done
,” referring to the
plaintiff.
[10]
One of the same police officers went to the plaintiff’s vehicle
and the plaintiff told
him that his vehicle had a mechanical problem.
However, the police disregarded that and started it and drove off
with the plaintiff’s
vehicle. Within a distance of 200 or 300
metres from there, his vehicle stalled and he repeatedly told the
police that his vehicle
has a mechanical problem. That landed in deaf
ears, because the police took out a 5l petrol container from their
bakkie and went
to buy petrol at Shell garage. Again the plaintiff
told the police that the problem with his vehicle was not the petrol
but the
police played no heed to that because they poured petrol in
his vehicle and tried to switch on the engine. However, the vehicle
could not start.
[11]
The police called a breakdown truck. It arrived and the driver was a
coloured man. At that time,
the plaintiff was sweating and the driver
of tow-truck asked him what was happening. The plaintiff responded
that he was unaware
of the reasons for his arrest. The tow-truck
driver then refused to tow away the plaintiff’s vehicle instead
he left. The
police called a second tow-truck from
Rululu
breakdown services in Mdantsane and his vehicle was towed to group 8,
where police store stolen vehicles. The police followed the
tow truck
to group 8 while the plaintiff was also still in the same
uncomfortable position in the police bakkie.
[12]
From there, the same police drove with the plaintiff to Fleet Street
police station. At the police
station, the plaintiff was informed for
the first time that he was arrested of reckless and negligent driving
and intimidation.
Immediately he contested and told the police his
side of the story that, he knew Mr
Mhlambi
and that his
vehicle had mechanical problem hence he was talking to him. Despite
his explanation, the police proceeded to detain
him.
[13]
He was detained in a cell together with other six inmates and the
cell was in an inhumane living
condition, infested with lice, blocked
toilets with no privacy of any nature whatsoever. He was only
released from custody on 17
June 2014 in the afternoon by the
Investigating Officer. He was warned to appear in court on 19 June
2014. After his release, he
went to check for his vehicle and to his
surprise it was broken into and stripped, the gearbox, starter,
battery and an alternator
were all missing. He opened a criminal case
at Fleet Street police station but it was never investigated and
nobody was ever arrested.
The plaintiff never recovered the above
mentioned items that were stolen from his vehicle. The plaintiff’s
present claim
does not include the aforementioned items.
[14]
The sturdy cross-examination of the plaintiff by the defendant’s
counsel unearthed inconsistencies
between the version pleaded on his
behalf and his evidence in chief. For instance, it was pleaded that
the plaintiff was arrested
while he was assisted by Mr
Mhlambi
.
However, it transpired that Mr
Mhlambi
gave no assistance.
Further it was pleaded that the police arrived at the scene and
alleged that the plaintiff was driving reckless
and negligent and was
intimidating Mr
Mhlambi
. However, the plaintiff’s
evidence in chief was that the police never gave him the reasons at
the scene for his arrest. Only
at the police station was he made
aware for the first time of the reasons of his arrest.
[15]
The plaintiff was squeezed further in cross-examination that, he was
furious, agitated, pointed
a finger and shouted at Mr
Mhlambi
in the presence of the police, to extent that Mr
Mhlambi
had
to lean side-ways from the driver’s seat to avoid him.
Appreciating the hurdle created by that proposition, the plaintiff
fabricated a version that Mr
Mhlambi
was leaning sideways
because he had to open the seats for the passengers to come in and
fill up the back seat. That version was
contrary to his evidence in
chief, that he was talking to Mr
Mhlambi
when the police
arrived. The plaintiff conceded that as taxi operators, they do not
approve the practice of giving lift to hitchhikers
at hiking spots as
that affects their business operations.
[16]
Further, the plaintiff was bombarded with questions about his purpose
of speaking to Mr
Mhlambi
, whereas on his own version he had
already diagnosed his vehicle’s mechanical problem. Evidently,
that became an insurmountable
hurdle for the plaintiff. He conceded
that Mr
Mhlambi
was not a mechanic and would not have
knowledge of mechanical problems with a Toyota corolla. Further and
most importantly, the
version that the plaintiff was test driving his
vehicle surfaced for the first time during cross-examination and he
could not provide
an explanation to that either.
[17]
Furthermore, the plaintiff testified for the first time in
cross-examination about the injuries
that he sustained consequent to
his arrest. Again, he could not provide any explanation why such
evidence was not given during
his evidence in chief. The impression
created to me by the plaintiff was a determination and zeal to
exaggerate the nature and
the extent of his alleged injuries. There
was not a shred of evidence produced by the plaintiff to support that
the alleged injuries
were casually link to his arrest. That much was
conceded during argument by his counsel.
[18]
The defendant led evidence of Sergeant
Fredericks
, who was
together with Warrant Officer
Swanepoel
at the time of the
plaintiff’s arrest. It was placed on record that Warrant
Officer
Swanepoel
has since become incapacitated in that, he
was shot during a robbery while he was on duty and is now blind and
wheelchair bound.
Sergeant
Fredericks
denied that there was a
third female police member that was with them in their police bakkie
at the scene when they arrested the
plaintiff.
[19]
Sergeant
Fredericks
’
version is that, on the day in question, he was patrolling with
Warrant Officer
Swanepoel
at Southernwood area. A member of the public flagged and stopped them
and informed them that, there was a taxi, a Toyota quantum
with
drivers intimidating hitchhikers near North-East Express Way. They
then proceeded to the relevant hiking spot. As they approached
the
off ramp, they noticed three Toyota quantum taxis parked on side of
the road. They stopped next to these taxis and they approached
the
drivers and instructed them that, they should move away from that
area immediately. Without resistance, all three taxis took
off and
left the area and thereafter he and
Swanepoel
proceeded with their own patrol.
[20]
They patrolled roughly for ten minutes or so, and again decided to
make their way back to the
same hiking spot and the time was
approximately 12h00 noon. As they were approaching the hiking spot
driving from the direction
of Eastern Cape Motors, he noticed a
silver Nissan Livina that had stopped at the hiking spot giving a
hitchhiker a lift. He also
observed the plaintiff’s vehicle
pulling in front of the above-mentioned Nissan Livina, parking
sideways blocking it from
driving away. At that moment, when he first
observed the plaintiff’s vehicle, he was at a distance of
approximately 15 metres
to 20 metres away, and there was nothing
blocking his view. It was daylight and the windows of their police
bakkie were open. He
saw the plaintiff getting out of his vehicle,
approaching Mr
Mhlambi
, shouting and pointing a finger at him.
The plaintiff was speaking in an agitated voice.
[21]
They stopped the police bakkie, he got out and approached the
plaintiff. Even then, the plaintiff
continued shouting and
aggressively pointing a finger at Mr
Mhlambi
. The plaintiff
was furious and threatened to assault Mr
Mhlambi
. Mr
Mhlambi
was leaning side-ways from his seat away from the plaintiff, avoiding
confrontation from the latter. Sergeant
Fredericks
enquired
from the plaintiff on what was going on. The plaintiff turned towards
him with an agitated voice screaming and shouting
using both isiXhosa
and English languages. Sergeant
Fredericks
understands both
languages.
[22]
The plaintiff informed Sergeant
Fredericks
that, Mr
Mhlambi
was from their taxi association and was not permitted to load
hitchhikers from a hiking spot. That piece of evidence corroborates
the concession already made by the plaintiff that taxi operators do
not approve giving lift to hitchhikers. That also lends credence
on
the reasons and behaviour of the plaintiff towards Mr
Mhlambi
.
Notwithstanding the presence of the police the plaintiff continued to
intimidate Mr
Mhlambi
. Warrant Officer
Swanepoel
spoke
to Mr
Mhlambi
and after that, he turned around and informed
the plaintiff that he was being placed under arrest for reckless and
negligent driving
and intimidation. The plaintiff was also warned of
his constitutional rights. The plaintiff was never handcuffed,
instead he was
instructed to drive his vehicle to the police station
and he did so, but it got stalled on the way. Hence the breakdown tow
truck
was summoned to tow it to a place of safety.
[23]
Before the plaintiff’s vehicle was towed away, Sergeant
Fredericks
removed the face of the radio from it and other
valuables and handed them over to the plaintiff. The plaintiff’s
vehicle
was then towed to a place of safety and from there the police
and the plaintiff proceeded to Fleet Street police station.
[24]
Again at Fleet Street police station, the plaintiff’s
constitutional rights were explained
to him and the reasons for his
arrest. Furthermore, the plaintiff requested to make a phone call and
he was overheard by Sergeant
Fredericks
speaking to someone
about Mr
Mhlambi
’s vehicle that, it must be stopped
wherever they could find it and that it was driving towards the
direction to Mthatha.
From that conversation Sergeant
Fredericks
gathered that, the plaintiff was so determined to ensure that Mr
Mhlambi
is stopped. After all the administrative paper work
was completed, the plaintiff was handed over to the cell unit and was
detained.
From thereon Sergeant
Fredericks
had no dealings
with him. Sergeant
Fredericks
further testified that they
arrested the plaintiff and took him to the police station in order
for him to be dealt with in terms
of justice.
[25]
Despite the increasingly pugnacious cross-examination by the
plaintiff’s counsel, Sergeant
Fredericks
’
testimony remained intact. He maintained his version and denied the
plaintiff’s testimony of how the events unfolded
on the day in
question.
Fredericks
’ evidence was coherent, consistent
to the case pleaded on behalf of the defendant and also corroborated
by the police docket
which was part of the plaintiff’s trial
bundle the content of which was never placed at issue.
[26]
There are two competing constitutional rights and/or mandate at play
herein. The protection of
the plaintiff’s right of liberty and
the police constitutional obligation to combat, prevent crime, uphold
and enforce the
law. For the police to execute their constitutional
mandate, they are statutory empowered to arrest and detain any person
who commits
an offence or attempts to commit an offence in their
presence.
[8]
[27]
The
onus
to prove the lawfulness of the arrest effected without a warrant
rests with defendant.
[9]
The
defendant relied on the provisions of section 40 (1) (a) of the CPA
as the empowering provisions for the justification of the
plaintiff’s
arrest. The relevant section empowers a peace officer to arrest
without a warrant any person who commits or attempts
to commit any
offence in his/her presence. For such arrest to be lawful, the
jurisdictional facts that the defendant has to establish
are that,
(a) the arrestor must be a peace officer, (b) the arrestee must have
committed or attempted to commit an offence and
(c) such an offence
or, attempt must have been committed in the presence of the arrestor.
[28]
I am alive to and mindful of the fact that, the police’s
authority to arrest without a
warrant must be exercised having
considered the balance between the protection of an individual’s
liberty on one hand and
without unnecessarily restricting them in the
execution of their duties.
[10]
In
Duncan
v Minister of Law and
Order,
[11]
the courts were warned that, care must be taken not to unnecessarily
hamper the power of the police to arrest without a warrant
by
creating extra limitation not intended by the legislature. However,
that being said, an arresting officer must still exercise
his
discretion within the bounds of rationality, and the decision to
arrest must be based on the intention to bring the arrestee
to
justice.
[12]
[29]
In the instant matter, it is common cause that both Warrant Officer
Swanepoel
and Sergeant
Fredericks
are peace officers
and therefore the first jurisdictional fact is not an issue. The
plaintiff however, contends that he did not
commit any offence and
that contention places at issue the second and third jurisdictional
facts. In addition, the plaintiff in
his pleadings contends that,
even if he had committed an offence, it was not an offence that he
ought to have been arrested for.
During argument, however,
plaintiff’s counsel unequivocal placed on record that the
exercise of the discretion by the arresting
officer was no longer an
issue. Based on that concession, the defendant’s counsel
advanced no submissions on the issue of
the exercise of discretion.
[30]
Fredericks
in his evidence was clear that they were driving
approaching from Eastern Cape Motors at a distance of approximately
15 to 20 metres,
he saw the plaintiff’s vehicle pulling at a
high speed in front of Mr
Mhlambi’
s vehicle blocking him
from moving. Then the plaintiff alighted from his vehicle and
approached Mr
Mhlambi
, shouting, aggressively pointing a
finger and speaking to the latter in an agitated manner to the extent
that Mr
Mhlambi
had to lean sideways to avoid the
confrontation from the plaintiff. When they stopped their police
bakkie, the plaintiff was not
deterred from his actions despite their
presence. He spoke to the plaintiff, but the latter was not perturbed
because he unabatedly
continued shouting and charging at Mr
Mhlambi
,
confronting him. Warrant Officer
Swanepoel
spoke to Mr
Mhlambi
as detailed in paragraph 22 above. The plaintiff was then arrested
for reckless and negligent driving and intimidation.
[31]
Sergeant
Fredericks
impressed me as an honest and reliable
witness. His version was consistent with the pleadings and supported
by the source documents
contained in the police docket. Sifting
through the evidence, I encountered no difficulties to pin point the
triggering event that
caused the plaintiff to conduct himself in the
manner as described by
Fredericks
. From the plaintiff’s
own version, the taxi operators do not take kindly the practice of
giving lift to hitchhikers at hiking
spots as it affects their
business. It is common cause that Mr
Mhlambi
was giving
hitchhikers a lift at a hiking spot and not from a designated taxi
rank, hence the plaintiff was shouting, aggressively
pointing a
finger and threatening to assault him. The manner in which the
plaintiff blocked Mr
Mhlambi
’s vehicle also lends
credence to the defendant’s version. Sergeant
Fredericks
observed all these actions by the plaintiff as they occurred in his
presence. Notwithstanding the police’s presence, the
plaintiff
unabatedly continued intimidating Mr
Mhlambi
. The evidence of
Sergeant
Fredericks
in my assessment, is more probable than
the plaintiff’s version, which was saturated and riddled with
inconsistencies. The
lies imbedded in the plaintiff’s testimony
were exposed without difficulties during cross-examination by the
defendant’s
counsel. There were serious and material
contradictions between the plaintiff’s oral testimony in chief
compared to his version
under cross-examination. Coupled thereto, his
oral testimony was also inconsistent with the case pleaded on his
behalf in the amended
particulars of claim. The plaintiff’s
version is false.
[32]
Despite all the above-mentioned inconsistencies in the plaintiff’s
case, his counsel argued
that Sergeant
Fredericks
’
evidence was customised to fit the defendant’s case. I
disagree, Sergeant
Fredericks
from his demeanour, impressed me
as an honest and reliable witness. He gave a clear and consistent
version of the events.
[33]
Although it was pleaded that even if the plaintiff had committed an
offence, which was denied,
but he ought not to have been arrested for
such an offence. However, that issue was not persisted with as
counsel for the plaintiff
placed on record that the exercise of the
discretion by the arresting officer was no longer an issue. Sergeant
Fredericks
testified that the discretion to arrest the
plaintiff was based on the intention to bring him to justice. From
the plaintiff’s
version, as soon as the investigating officer
interviewed him and attended to the necessary administrative
procedures, he was released
and warned to appear in court on 19 June
2014. The police docket showed that the plaintiff was released at
12h20 on 17 June 2014.
The 16
th
of June was a public
holiday. It was never the plaintiff’s case that the
investigating officer could and should have attended
to him earlier
and secured his release from detention sooner.
[34]
Accordingly, on the conspectus of all the evidence at my disposal,
the defendant has discharged
the
onus
and has proved that the
plaintiff’s arrest under the circumstances was lawful. In the
light of this finding, the issue of
damages does not find its way for
consideration.
[35]
On the issue of costs, there is no reason why the general rule should
not be applied, namely,
that the costs follow the results.
[36]
In the circumstances, the following order shall be issued:
1.
The plaintiff’s claim is dismissed with costs.
N
GQAMANA
JUDGE
OF THE HIGH COURT
APPEARANCES:
Counsel
for the plaintiff :
Mr Bishoti
Instructed
by
: M. T. Klaas Inc.
East London
Counsel
for the Defendant :
Mr Mapoma SC
Instructed
by
: State Attorney
East London
Date
heard
: 5 October 2022
Date
judgment delivered :
20 October 2022
[1]
Mr Xolani Qanqane, an adult male, Taxi driver.
[2]
Pleadings; p15 para 10.
[3]
For general damages, he claimed R500 000.00 for pain and suffering,
temporal disability in hands, anxiety, stress, shock and
depression
in
contumelia
(para 12.2 of the amended particulars of claim) and R300 000.00 for
unlawful arrest (para 12.3).
[4]
Pleadings pp 14–15 paras 7 to 8.
[5]
Pleadings pp 19–20 paras 5–7 and para 11 and 12.
[6]
Pleadings p 40.
[7]
1984 (4) SA 437
ECD at 440 A – B.
[8]
Section 40
(1) (a) of the
Criminal Procedure Act 51 of 1977
.
[9]
Mhaga v Minister of Safety and Security [2001] 2 All SA 534 (Tk).
[10]
Minister of Safety and Security v Glisson 2007 (1) SACR 131 (E).
[11]
1984 (3) SA 460 (T) 466.
[12]
Minister of Safety and Security v Sekhoto
2011 (5) SA 367
(SCA) para
30.