T.A.M and Others v Minister of Police and Another (9676/2013) [2021] ZAGPPHC 407 (8 June 2021)

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[2021] ZAGPPHC 407
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T.A.M and Others v Minister of Police and Another (9676/2013) [2021] ZAGPPHC 407 (8 June 2021)

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REPUBLIC OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Case
No: 9676/2013
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED.
In
the matter between:
T A
M[…]
First Plaintiff
J
R[…]
Second Plaintiff
T P
M[…]
Third Plaintiff
and
MINISTER
OF
POLICE
First Defendant
NTSIKELELO
AND OTHER POLICE OFFICER/S
Second Defendant
Delivered.
This judgment is being handed down
electronically by circulation to the parties’ representatives
by email. The date and time
for hand down is deemed to be 10h00 on 8
June 2021.
JUDGMENT
RANCHOD,
J
Introduction
[1]
This is a consolidated damages action instituted by the three
plaintiffs. The first
defendant is sought to be held vicariously
liable for certain allegedly unlawful actions of the second
defendants.
[2]
According to the amended particulars of claim, the first plaintiff,
Mr A M (M[..]),
claims damages with regard to two separate incidents
– one in November 2010 and another in January 2012:
-
Claim ‘1A’ is for his
abduction, unlawful extradition (rendition), unlawful arrest, assault
and unlawful detention in
November 2010 for which he claims a total
of R10 4000 000.
-
Claim ‘2A’ is for his unlawful
arrest, unlawful detention, unlawful extradition or rendition and
assault in January
2012 for which he claims a total of R6 500 000.
-
Claim ‘D’ is for malicious
proceedings against him in November 2010 for which he claims
R6 500 000.
[3]
The second plaintiff, Mr J R[…] (R[…]), claims
R2 500 000
for his unlawful arrest and detention and
assault by the second defendants in January 2012. It is claim ‘B’
in the
particulars of claim.
[4]
The third plaintiff, Mr T M[…] (M[…]) claims R3 900 000
for
his unlawful arrest and detention and assault by the second
defendants in January 2012. It is claim ‘C’.
[5]
The defendants oppose the claims. After filing a plea the defendants
amended it in
terms of Rule 28 of the Uniform Rules of Court.
Thereafter, the plaintiffs amended their particulars of claim after
the defendants
raised an exception to them.
[6]
The trial is in respect of the issue of liability only. The parties
had agreed to
separate the issues of liability and quantum in terms
of Rule 33(4).  I deemed it appropriate to do so and ruled
accordingly.
[7]
The trial commenced on 6 November 2017. On 16 November 2017 it was
postponed. The
defendants brought an interlocutory application to
amend the plea as they had omitted to plead to Claim D of the
plaintiffs’
particulars of claim. I granted the application.
Subsequently, the defendants applied for a further amendment to the
plea, which
I refused.
[8]
The trial continued from 29 July 2019 up to 8 August 2019 then
resumed in September
2019. The defendants again brought an
interlocutory application to amend the plea – this time to
amend several admissions,
which, they said, they had made in error. I
granted the amendment. The trial continued from 3 November 2019 to 10
November 2019.
[9]
I will refer to the plaintiffs by their surnames, i.e., first
plaintiff as M[…], second plaintiff as R[…] and
the
third plaintiff as M[…] for the sake of convenience.
Factual
background
The
first plaintiff
Ad
claim 1A:
Abduction,
unlawful extradition (rendition), unlawful arrest and detention and
assault
[10]
M[…] alleges that on 25
th
November 2010, whilst at
home in N[…], which is situated at M[…], at about 23:00
he was abducted by a police officer
known to him as Colonel Anele
Ntsikelelo (Tsikelele) of the Beit Bridge Border Post South African
Police Services (SAPS) and the
latter was accompanied by other
members of the second defendant. (It is common cause, or not in
dispute that the correct spelling
of ‘Ntsikelelo’ is
Tsikelele.)
[11]
M[…] alleges further that he was assaulted by the police
officers in his home. After he
was assaulted, he was put inside a
Mercedes Benz Vito motor vehicle and driven to the Beit Bridge Border
Post on the Zimbabwean
side. He says he was unlawfully detained for a
period of five days at the Zimbabwean Beit Bridge Border Post and was
assaulted
by the Zimbabwean police officers daily during the
detention.
[12]
On 2
nd
December 2010 he appeared at the Zimbabwe Beit
Bridge Border Post Magistrates’ Court on a charge of robbery
and was denied
bail. He was remanded to the Beit Bridge Border Post
Remand Prison. He alleges that he was unlawfully detained in the
Remand Prison
from 2 December 2010 up until 9 March 2011. Prior to
his release, on 8 March 2011 the state of Zimbabwe withdrew the
charges levelled
against him and he was released from detention.
Hence the claim for damages.
Ad
claim 1B: Unlawful extradition (rendition),
unlawful arrest and detention and assault
[13]
For this claim, M[…] alleges that on 3
rd
January
2012 at 01:00 am he was at his home asleep. He was woken by his
mother’s voice and he was there and then unlawfully
arrested by
Colonel Tsikelele who was in the company of other members of the SAPS
and Zimbabwean police. M[…] testified
further that he was
assaulted by the police at his home, his head was covered with his
trouser and was put at the back of a van.
He was only in his
underwear. The police were using a baton and a ‘knopkierie’
(a cane) to assault him. He was then
driven to the Beit Bridge Border
Post charge office on the South African side. He says he was further
assaulted by the police there.
[14]
He was thereafter driven to Zimbabwean Beit Bridge Border Post charge
office where he was further
severely assaulted by the police. He
testified that a bag was used to cover his head. He was placed in the
middle of two iron tables
and a piece of iron rod was placed under
his knees. He was hanging with his head down. He was assaulted with a
cane under his feet
and on the top of his feet until he fainted. The
assault continued after he regained consciousness.
He
was then driven back to South Africa by the police officers. They
then took him to a farm known as J[...]’s Farm where
the
assault continued. A police officer assaulted him on his cuffed hands
to tighten the cuffs by using a ‘knopkierie’.
After the
assault at J[...]’s Farm he was taken in a Ford Focus motor
vehicle by the police officers and dumped next to a
drain some
distance from his home.
[15]
In both claims ‘1A’ and ‘1B’, the first
plaintiff alleges that the members
of the SAPS acted unlawfully and
that these unlawful acts are contrary to the provisions of the South
African Constitution
[1]
(“the
Constitution”), the Extradition Act
[2]
and the Criminal Procedure Act
[3]
(“CPA”).
Ad
claim D: Malicious proceedings
[16]
This claim is linked to the events that took place on 25 November
2010 (claim ‘1A’).
M[…] alleges that the members
of SAPS wrongfully and maliciously set the law in motion by arresting
or abducting him. He
says they illegally removed him from his home in
South Africa and extradited him to Zimbabwe without proper due legal
processes.
In the particulars of claim, he pleaded that he was
detained for a period of six days at the Zimbabwean Beit Bridge
police holding
cells and thereafter was detained at the Beit Bridge
Border Post Remand Prison from 2 December 2010 up until 9 March 2011.
M[…]
alleges that he has spent 105 days in total in Zimbabwean
detention facilities.
Ad
claim ‘B’: Second plaintiff: Unlawful
arrest and detention and assault
[17]
The second plaintiff, Mr. R[…] alleges that on 3 January 2012
he was near his home at
a place called M[…] in L[…]. He
was telephoned by members of the SAPS who instructed him to meet them
at the garage
near his home. He says he was arrested and handcuffed,
was severely kicked, slapped, ‘sjamboked’ (whipped) and
assaulted
with the butt of a riffle and knopkierie by Tsikelele and
other police officers before and during the arrest.
[18]
He says he was put inside a van and driven to a farm known as J[…]’s
Farm. While
he was still handcuffed the police officers lifted him
off the ground then dropped him. His pants were unzipped and his
private
parts were pepper-sprayed. He was thereafter undressed by
police officers and water was poured onto his genitals. He alleges
that
the next day he was pulled over whilst driving and he was there
and then assaulted by members of the SAPS. He was then told by the

police officers that he must drop the charges he laid against the
members of SAPS, an apparent reference to the assault the previous

day.
[19]
R[…] alleges that his arrest, detention and assault were
unlawful and contrary to certain
provisions contained in the
Constitution and the CPA.
Ad
claim ‘C’: Third plaintiff: Unlawful
arrest and detention and assault
[20]
Mr M[…] alleges that on 3 January 2012 at about 17:00 he was
at a place called M[…],
L[…]. He was at his house when
the police surrounded him and a police officer known to him as
Colonel Tsikelele began to
assault him with clenched fists. He was
also assaulted with bare fists by a female police officer. He was
thereafter put in a police
motor vehicle and driven to a place called
M[…] where a man known to him as J[…] R[…] was
arrested.
[21]
M[…] alleges further that he was assaulted under his feet, his
hands were handcuffed behind
his back, he was lifted up in the air
and dropped on his face and his genitals were pepper-sprayed. He
claims that the arrest,
detention and assault by members of the SAPS
was unlawful and contravened the prescripts contained in the
Constitution and the
CPA.
Arrest
without warrant
[22]
All three plaintiffs say they were arrested without warrants and, in
the case of M[…],
that the time of his arrest there were no
warrants of arrest outstanding from both the Zimbabwean and South
African Police.
Defendants
[23]
In their plea, the defendants dispute the plaintiffs’ claims.
In fact the plea as amended
may be characterised as a bare denial of
all the allegations of the plaintiffs.
[24]
In their amended plea the defendants admitted the arrests of the
plaintiffs. During the course
of the trial, the defendants applied to
again amend their plea - this time to the effect that they denied the
arrests of the plaintiffs.
[4]
This application was granted.
[25]
The defendants also applied for an amendment of the plea to claim D
of the plaintiffs’
claim. This was the claim with respect to
malicious prosecution of M[…] in Zimbabwe.
[5]
This application too was granted. The amendment to claim D was to the
effect that the defendants:
25.1
Denied the unlawful handing over of M[…] to the Zimbabwe
Police;
25.2
Pleaded that in the event that it is found that the defendants were
liable for the unlawful handing over
of M[…] to the Zimbabwe
Police, then the defendants were:
25.2.1 not instrumental
or involved in the unlawful prosecution;
25.2.2 could not
reasonably foresee that the malicious
prosecution
of M[…] could be instituted and conducted in the courts in
Zimbabwe;
25.2.3 there was no
causal connection between any unlawful conduct of the defendants, if
so found by the court, and any malicious
prosecution instituted and
conducted in the courts in Zimbabwe; and
25.2.4 if it is found
that the defendants are liable for the rendition of M[…], then
the defendants are in law not liable
for any malicious prosecution of
M[…] in Zimbabwe.
[26]
The defendants initially bore the burden of providing justification
for arrest. When they brought,
and were granted the application to
withdraw the admission of an arrest in their plea an evidentiary
burden lay on the plaintiffs
to prove their arrests. The granting of
the application resulted in the reversal of the onus of proof to the
plaintiffs.
[27]
All the plaintiffs led evidence in respect of their respective
claims. The first plaintiff also
led the evidence of his mother, Mrs
M[…], in support of his claims. The defendants led a number of
witnesses, who were made
up of the second defendants. Counsel for the
plaintiffs submitted that their evidence was a collusion to mislead
the court about
the arrests and claims of the plaintiffs and that
they were simply not candid with the court in their testimony. I will
revert
to this aspect later on in this judgment.
The
legal position
[28]
It is necessary to first deal with the legal principles applicable to
each of the claims as would
be applied to the facts of this matter.
Unlawful
arrest and detention
[29]
The plaintiffs’ claim is one based in delict. A delict
comprises wrongful, culpable conduct
by one person that factually
causes harm to another person that is not too remote. When the harm
in question is a violation of
a personality interest caused by
intentional conduct, then the person who suffered the harm must
institute the
actio iniuriarum
to claim compensation for the
non-patrimonial harm suffered.
[30]
Any arrest without a warrant which is not specifically authorised by
law is
prima
facie
unlawful.
Our courts have therefore deemed it fair and just to require the
arrestor to bear the onus of proving that his or her
arrest was
justified in law. In
Minister
of Justice v Hofmeyr
[6]
(per Hoexter JA) it was held:
‘
The
plain and fundamental rule is that every individual’s person is
inviolable. In actions for damages for wrongful arrest
or
imprisonment our courts have adopted the rule that such infractions
are
prima facie
illegal. Once the arrest or imprisonment has
been admitted or proved it is for the defendant to allege and prove
the existence of
grounds of justification of the infraction.’
[31]
The requirements for a lawful arrest without a warrant are set out in
section 40(1)(a) and (b) of the
CPA:
‘
(1)
A peace officer may without warrant arrest any person –
(a)
who commits or attempts any offence in his presence;
(b)
whom he reasonably suspects of having committed an offence referred
to in Schedule 1, other
than the offence of escaping from lawful
custody;’
[32]
In
Duncan
v Minister of Law and Order
[7]
Van Heerden JA explained the jurisdictional facts that must be
established for a successful defence under section 40(1)(b)
as being
that:
32.1
The arrestor must be a peace officer;
32.2
The arrestor must entertain a suspicion;
32.3
The suspicion must be that the arrestee committed an offence
referred
to in Schedule 1, other than an escape from lawful custody; and
32.4
The suspicion must rest on reasonable grounds.
[33]
Schedule 1 to the CPA refers to a number of offences in respect of
which an arrest could be made
without a warrant, one of which is
robbery. Before the arrestor can arrest the arrestee, he or she must
have reasonable grounds
for suspecting that the arrestee has
committed an offence in Schedule 1. In
Mabona
and Another v Minister of Law and Order and Others
[8]
the court held that the information upon which the reasonable
suspicion is based that a Schedule 1 offence has been committed must

be at the arrestor’s disposal at the time of arrest. The
arrestor will critically analyse and assess the quality of that

information and will not accept it without checking it where it can
be checked.
[34]
The test as to whether the arresting officer’s suspicion is
reasonable is to be assessed
objectively. This principle was explored
in
Duncan
where it was held that the suspicion of the
arresting officer is reasonably held if, on an objective approach,
the arresting officer
has reasonable grounds for his suspicion. Once
the required suspicion exists, an arresting officer is vested with a
discretion
to arrest, which he must exercise rationally.
[35]
Section 50 of the CPA comes into play after an arrest is made. It
reads:
‘
Procedure
after arrest
(a)
Any person who is arrested with or without 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 warrant, to any
other place which is expressly mentioned in the
warrant.’
[36]
In
Woji
v Minister of Police
[9]
Swain JA said:
‘
The
Constitutional Court in Zealand did not require the decisions of the
respective magistrates to be set aside, before the lawfulness
of the
appellant’s detention could be determined. Once it is clear
that the detention is not justified by acceptable reasons
and is
without just cause in terms of s 12(1)(a) of the Constitution, the
individual’s right not to be deprived of his or
her freedom is
established. This would render the individual’s detention
unlawful for the purposes of a delictual claim for
damages.’
[37]
The Constitution imposes a duty on the state and all of its organs
not to perform any act that
infringes the entrenched rights, such as
the right to life, human dignity and freedom and security of the
person. This is termed
a public law duty.
[10]
Assault
[38]
An assault is a violation of a person’s bodily integrity. The
cause of action is the
action iniuriarum.
It is trite law that
every infringement of the bodily integrity of another is
prima
facie
unlawful. In an assault claim, the onus to establish the
assault, and damages related thereto, is on the plaintiff. An
allegation
of assault implies wrongfulness.
[39]
Section 49 of the CPA, regulates a sensitive subject, namely, the use
of force, which police
and private persons may employ in order to
arrest suspects who offer resistance or flee. The concern of our
courts is about the
overzealous use of force, and especially
firearms. This concern is borne out by the fact that until recently
it was lawful to kill
a person suspected of a relatively minor
offence who offered resistance to arrest or fled, under certain
circumstances.
[40]
Section 49 of the CPA, reads as follows:
Use
of force in effecting arrest
‘
(1)
For the purposes of this section –
(a)
‘arrestor’ means any person authorised under this Act to
arrest or to assist
in arresting a suspect;
(b)
‘suspect’ means any person in respect of whom an arrestor
has a reasonable suspicion
that such person is committing or has
committed an offence; and
(c)
‘deadly force’ means force that is likely to cause
serious bodily harm
or death and includes, but is not limited to,
shooting at a suspect with a firearm.
(2)
If any arrestor attempts to arrest a suspect and the suspect resists
the attempt, or flees,
or resists the attempt and flees, when it is
clear that an attempt to arrest him or her is being made, and the
suspect cannot be
arrested without the use of force, the arrestor
may, in order to effect the arrest, use such force as may be
reasonably necessary
and proportional in the circumstances to
overcome the resistance or to prevent the suspect from fleeing, but,
in addition to the
requirement that the force must be reasonably
necessary and proportional in the circumstances, the arrestor may use
deadly force
only if-
(a)
The suspect poses a threat of serious violence to the arrestor or any
other person; or
(b)
the suspect is suspected on reasonable grounds of having committed a
crime involving the
infliction or threatened infliction of serious
bodily harm and there are no other reasonable means of effecting the
arrest, whether
at that time or later.’
[41]
Because of the danger of misuse of the statutory authorisation to
employ force when effecting
arrest, the courts will examine carefully
whether the requirements were complied with and for this purpose the
provisions of section
49 will be strictly interpreted by the courts.
[42]
The requirements of section 49 will become relevant in circumstances
where a police official
allegedly used more force than was necessary
to overcome resistance or to restrain a person who had tried to
escape. The police
official will have to prove on a balance of
probabilities that he complied with the requirements before his
conduct may be statutorily
justified.
[43]
In
Sebogodi v Minister of Police,
the court in dealing with
issues of police assault stated as follows:
‘
I
fully agree with the submissions by the plaintiff’s Counsel
that although the arrest and the use of force are two concepts,
they
are so interwoven in the circumstances of this matter that it will
justify the proposition that where the balance of probability
proves
that the arrest was unlawful, the use of force will automatically
also be unlawful in that the grounds for the use of such
force (to
arrest) are non-existent. The defendant’s use of force will
thus automatically constitute assault on the person
of the plaintiff
in the event of defendant’s failure to prove the lawfulness of
such assault. Physical interference, which
affects a person’s
bodily integrity constitutes assault.’
[44]
It has been held that if excessive force is used in the performance
of an otherwise lawful act,
such as the lawful arrest of the
plaintiff, and the plaintiff is injured, the plaintiff would be
entitled to damages for the assault.
[11]
[45]
A defendant may be vicariously liable for an assault committed by
another. A typical example
is the liability of the State for an
assault committed by a policeman in the course and scope of his
employment. In such a case,
the relevant Minister is the nominal
defendant representing the State and the policeman involved is
usually cited as the second
defendant.
Rendition
or unlawful handing over
[46]
Extradition is one of the modalities of co-operation in criminal
matters between states. As such,
it is a function of international
relations between sovereign states. It is, however, also a function
of the criminal justice system.
Extradition is thus a bilateral act
of mutual legal assistance between a requesting and a requested state
with the aim of securing
a suspect’s presence at trial in the
requesting state.
[47]
In
President
of the Republic of South Africa v Quagliani
[12]
,
the
Constitutional Court pronounced on the nature of extradition,
recognising that it involved more than international relations
or
reciprocity:
‘
It
involves three elements: acts of sovereignty on the part of two
States; a request by one State to another State for the delivery
to
it of an alleged criminal; and the delivery of the person requested
for the purposes of trial and sentencing in the territory
of the
requesting State. Extradition law thus straddles the divide between
State sovereignty and comity between States and functions
at the
intersection of domestic law and international law.’
[48]
The extradition process (the request and surrender) is governed by
international and domestic
law. A general duty on the part of states
to surrender criminals does not exist in customary international law.
[49]
After the end of apartheid, South Africa and the other states in the
Southern African region
have enjoyed generally good relations. This,
together with more pragmatic considerations, makes possible the fact
that a more expeditious
procedure is followed with respect to
extradition requests between South Africa and its neighbours in the
region. The SADC Protocol
on Extradition, 2002
[13]
(“the Protocol”), encourages greater co-operation between
states in the region.
[50]
Thus, the Extradition Act provides that the requesting state does not
have to submit an extradition
request via political or diplomatic
channels. Rather, a warrant for the arrest of the relevant individual
(fugitive, suspect or
accused person) can be submitted directly to
the Director of Public Prosecutions having jurisdiction. The request
must be accompanied
by a statement with details about the crime and
prima facie
evidence of the individual’s guilt. A
magistrate then has the statutory authority to endorse the warrant
for execution in
South Africa. The individual has the right to appeal
to the High Court before the surrender to the associated state.
[51]
According to Article 2 of the Protocol titled “
Obligation to
extradite
”, when a request for extradition is made the
following applies:
‘
Each
State Party agrees to extradite to the other, in accordance with the
provisions of this Protocol and their respective domestic
law, any
person within its jurisdiction who is wanted for prosecution or the
imposition or enforcement of a sentence in the Requesting
State for
an extraditable offence.’
[52]
In contrast, rendition to justice is a technique by which a suspected
person is forcibly abducted
from another state,  with the
ultimate aim of criminal adjudication in the abducting state. The
forcible abduction may be
executed unilaterally by agents of the
foreign state or with the cooperation of agents of the state from
where the person is abducted.
However, the practice is condemned as
it deprives a person of the rights he would have enjoyed during the
extradition process.
[53]
In
S v
Ebrahim
[14]
the then South African Appellate Division held that a South African
court has no competence to try a person kidnapped from another
state
by agents of South Africa. The court relied on the Roman-Dutch law in
stating that the rule prohibiting the exercise of jurisdiction
over a
kidnapped person was premised on considerations of good inter-state
relations, respect for territorial sovereignty, and
the promotion of
human rights.
[54]
The Zimbabwean courts hold a similar view to that of the South
African courts with regard to
the illegal abduction of suspects from
foreign countries to stand trial in Zimbabwe. The Zimbabwe Supreme
Court gave its approval
to
Ebrahim
in
S
v Beahan
[15]
where Gubbay CJ held that:
‘
There
is an inherent objection to [exercising jurisdiction over an
abductee] both on grounds of public policy pertaining to
international
ethical norms and because it imperils and corrodes the
peaceful coexistence and mutual respect of sovereign nations. For
abduction
is illegal under international law, provided the abductor
was not acting on his own initiative and without the authority or
connivance
of his government. A contrary view would amount to a
declaration that the end justifies the means, thereby encouraging
states to
become lawbreakers in order to secure the conviction of a
private individual.’
[55]
In the matter of
Minister of Law and Order v Thandani
the
court dealt with a situation where members of the security branch of
the South African police service unlawfully arrested the
respondent
where after they handed him over to the Ciskei police, who detained
the respondent for a period of 59 days. Albeit that
he learned Judge
expressed an opinion as to the unlawfulness of the respondent’s
detention subsequent to him being handed
over to the Ciskei police,
such lawfulness or unlawfulness was regarded as irrelevant. The
appellant was found liable for the entire
period of detention,
including the period subsequent to the respondent being handed over
to the Ciskei police.
The
evidence
[56]
I turn then, to deal with the evidence and the facts emanating
therefrom.
Unlawful
arrest and detention
The
2010 incident
[57]
In examination-in-chief, M[…] testified at length regarding
the two incidents (2010 and
2012), relating to his unlawful arrest,
assault, rendition and malicious prosecution. He testified that from
February to November
2010, he was stationed at tavern in M[…]
called “
E[…]’s Tavern
” where he was
employed as a security guard. Whilst stationed there, he never went
to the taxi rank or Beit-Bridge where Tsikelele
was stationed. On 26
November 2010, a contingent of about ten police officers led by
Tsikelele, pounced on him whilst he was on
duty at E[…]’s
Tavern. M[…] testified that just prior to his arrest while
sitting at his place of employment,
a gentleman by the name of T[…]
came running to him saying that he (M[…]) was being sought by
the police. Whilst
talking to Thapelo, the police, who included
Tsikelele, Mandla, Makamu, Welcome and Segoa arrived and pulled guns
on him and they
put him into the back of a Mercedes Benz Vito (“the
Vito”). He knew these police officers because they lived in the

township where he lived. The Vito had been parked outside the tavern
at the time. They then drove off to the Zimbabwean Police
Station at
Beit Bridge border post. Before he alighted, the police put a sack
over his head and assaulted him and took him to an
office where he
found two brothers (I[…] and N[…] M[…]), whom he
called the M[…] brothers. They were
assaulted and questioned
about firearms. The assault lasted until 2 – 3 am and they were
thereafter put into police cells
at the Zimbabwe Police Station. M[…]
testified that he told both the South African and Zimbabwean police
that he did not
have any firearms. He said the Sunday night,
Tsikelele came to the police station and took him and the M[…]s
out of the
cells and assaulted them. Tsikelele told them that if they
did not release or point out the firearms, he would leave them in
Zimbabwe.
He testified that they told Tsikelele and the Zimbabwean
Police that they did not have any firearms.
[58]
M[…] further testified that they were told they were suspected
of robbing a certain place,
which he did not know of, of money and
that during the commission of the robbery, they assaulted a security
guard. They were then
taken back to the police cells where they
remained until the Wednesday to participate in an identity parade.
However, he was not
identified in the parade. The Criminal
Investigation Division officers told him that even though he was not
identified he would
still go to jail. He was thereafter charged with
armed robbery
[16]
by one
Detective Sergeant Gutsa of the Zimbabwean Police.
[59]
M[…] testified that he was remanded from 2 December 2010 for a
period of over three months,
until the court discharged him. He
testified that on his discharge his identity book was requested.
Because he did not have it
he was taken back to the prison. He was
only released after a further two days when his mother brought his
identity book to the
prison. He was taken back to South Africa.
[60]
M[…] further testified that the other detainees were allowed
to make phone calls to their
relatives and loved ones but he, as a
South African, was refused this privilege. Only the Zimbabwean
nationals were given this
privilege. However, Mr. M[…] also
testified that he had telephoned his mother and had told her that he
was calling from
the Zimbabwean police station.
[61]
During cross examination the defendant’s counsel, Mr. Maritz
SC, put the defendants’
version to M[…] that they will
deny that the police assaulted him or arrested him. However, the
defendants did not call
the second defendants to testify and bolster
the defendants’ version with regard to both claims A and D
respectively. The
only witnesses for the defendants who testified
about the 2010 incident were Tsikelele and Colonel Radzilana who
denied that M[…]
was arrested and assaulted. They testified
that they came to know about this incident only because they were
called by an Advocate
Bopape who alleged that he had been instructed
by Mrs. M[…] to enquire about M[…]’s whereabouts
as he had been
arrested by Tsikelele the previous night and had taken
him away in the police Vito.
[62]
This version does not appear to be probable as Mrs. M[…] had
testified in chief that in
2010, she got to know about M[…]’s
whereabouts when M[…] called her from the Zimbabwean Police
Station. There
was no testimony of any involvement of any legal
practitioner on the instructions of Mrs. M[…]. This testimony
left M[…]’s
testimony largely undisputed with regard to
both claim A and D.
[63]
It is telling that the defendants did not put a version to M[…]
in cross examination relating
to his testimony about the 2010 and
2012 incidents, this despite their amendments being allowed by the
court. No evidence was led
in the defendants’ case (which was
put by them to M[…] in cross examination) to contradict his
testimony as well as
that of his mother. Despite certain versions
having been put to the plaintiffs about the incidents on the farm the
witnesses called
by the defendants merely denied having arrested and
or assaulted the plaintiffs and denied that the second plaintiff was
among
them.
[64]
The failure by the defendants to lead evidence challenging the
plaintiffs’ testimony, is
of significance with regard to the
purpose of cross-examination and the resultant failure to challenge
evidence, as was summed
up by the Constitutional Court in
President
of the RSA v South African Rugby Football Union
[17]
as follows:
‘
The
institution of cross-examination not only constitutes a right, it
also imposes certain obligations. As a general rule it is
essential.
When it is intended to suggest that a witness is not speaking the
truth on a particular point, to direct the witness’s
attention
to the fact by questions put in cross-examination showing that the
imputation is intended to be made and to afford the
witness an
opportunity, while still in the witness box, of giving any
explanation open to the witness and of defending his or her

character. If a point in dispute  is left unchallenged in
cross-examination, the party calling the witness is entitled to

assume that the unchallenged witness’s testimony is accepted as
correct. This rule was enunciated by the House of Lords in
Browne
v Dunn
and has been adopted and consistently followed by our
courts.’
[65]
M[…] testified that Tsikelele arrested him at the tavern on
Wednesday 26 November 2010
and took him to the Zimbabwean Police
Station at the Beit Bridge Border Post. The police deny this arrest.
[66]
Defence counsel relies on the case of
Gumede
v Minister of Safety and Security
[18]
for the submission that the police did not arrest the plaintiffs. In
my view this reliance is misplaced as the facts in
Gumede
can be
distinguished from the present case.
[67]
The facts, briefly, are that Mr Gumede sued the defendant for his
unlawful arrest, detention
and assault by members of the SAPS during
September 2006. The plaintiff was employed by SBV Services (Pty) Ltd
(SBV) as a protection
officer in the cash-in-transit department. On
23 September he was the subject of an armed robbery whilst he was
seated in the driver’s
seat of an SBV motor vehicle which he
parked at a shopping centre for the purpose of on-loading or
off-loading cash. The vehicle
was hijacked with Mr Gumede inside it
and it was subsequently abandoned nearby with its doors left wide
open. The police arrived
and Mr Gumede was interviewed then and there
and a statement was taken from him. At the time, he was not a
suspect. His employer
took him away. His employer subsequently
questioned him and his fellow employees and entertained suspicions
about their involvement
in the robbery. These were suspicions of his
employer and not the police. Mr Gumede and his co-workers failed a
polygraph test
administered at the request of the employer. It was
only then that they were taken by the employer to the police to be
further
interviewed.  This further assistance of the police was
sought by Mr Gumede’s employer to
inter
alia
clarify how the robbery occurred. Mr Gumede willingly accompanied his
employer to the police station. He was not arrested or detained
nor
were any charges put to him. ‘From the evidence presented, he
could have asked to leave at any stage.’
[19]
The court held:
[20]
‘On
the facts of this matter the plaintiff voluntarily provided an
initial statement at the scene, and, at that stage it
was a witness
statement.’ Further:
[21]
‘In my view although the witnesses did not specifically say so
the plaintiff’s employer considered him a suspect and
based on
this, so did the police.
He
was interviewed at the police station and not arrested as there was
no evidence to support that he was arrested. He was not issued
with a
SAP14 A, and he was not held in the police cells. The interaction
between the plaintiff and the defendant’s officers
was limited
to purposes of questioning and when it became clear that there was no
evidence against him in order for him to be charged
for the
commission of the offence, he was released. As such, on the totality
of the evidence, the plaintiff was not arrested nor
detained.’
[68]
The Defendants submit in their main heads of argument that, in the
Gumede
case, the Court stated that “
should
the police take a person into custody and treat them as a suspect for
purposes of questioning, such would not be an arrest.”
.
This quotation has three elements, which are that the police take a
person into custody; the person is treated as a suspect; and
the
taking into custody is for purposes of questioning.
[69]
The present case is distinguishable from the
Gumede
case in that Gumede’s presence at the police station was at the
instance of the employer; he was not “
taken
into custody”
; and he was treated
as a witness to the crime, not as a suspect.
[70]
Whether an arrest is lawful, is closely connected to the facts of
each matter.
[22]
[71]
Similarly, whether the police “
assumed
control over a person”
with the intention to arrest, is a factual one.
[23]
In
Khan
v S
[24]
,
Swain J said the following:
“
On
the facts of this case, it cannot be said that the police at the
relevant time, had assumed control over the movement of the
appellant
… with the intention to arrest her.”
[72]
In
Minister
of Safety and Security v Van Niekerk
[25]
the
Constitutional Court held:
“
I
conclude therefore that nuanced guidelines already exist.  In
the circumstances, it would not be desirable for this Court
to attend
in an abstract way, divorced from the facts of this case, to
articulate a blanket, all-purpose test for constitutionally

acceptable arrests.  Older guidelines themselves underline, the
lawfulness of an arrest will be closely connected to the facts
of the
situation.”
[73]
The facts must be examined in line with the principle that:
“
A
person is under arrest as soon as the police assume control over his
movements.”
[26]
[74]
Once an arrestor has formed a view or a suspicion that the person has
committed a crime, and
the police assume control over the person’s
movements, then an arrest has taken place. It is irrelevant whether,
in the process,
the arrestor starts with an interrogation, or
subjects him or her to an identification parade, or blood tests “
in
order to confirm, strengthen or dispel the suspicion”
.
[27]
[75]
In this case before me the police had formed the view or suspicion
that the plaintiffs had committed
the alleged crimes and the police
had the intention to bring them to trial. They assumed control over
their movements for varying
periods of time each. That the
interrogations dispelled their suspicions, is irrelevant to the fact
that they did assume control
over their movement. They had not been
invited to report to the police station for purposes of answering
some questions, nor were
they taken to the police station for this
purpose. The amount of resources used, including the deployment of a
very senior officer,
Tsikelelo, and his task force indicate the
intention to arrest, not to seek the cooperation of a potential
witness.
[76]
In this matter before me there was no intention to bring the
plaintiffs before court to be tried and
convicted, but to deter them
from involving themselves in unlawful conduct.
[77]
In
Tsose
v Minister of Justice and Others
[28]
,
Schreiner JA stated the following:
“
If
the object of the arrest, though professedly to bring the arrested
person before court, is really not such, but is to frighten
or harass
him and so induce him to act in a way desired by the arrestor,
without his appearing in court, the arrest is, no doubt,
unlawful.”
[78]
Therefore, once the police assumed control over the plaintiffs’
movements, arrests had
taken place. Whether the intention was to
bring them before court or to frighten or harass them is immaterial.
[79]
In my view, the overwhelming probabilities are that Mr M[…]
was first arrested by the
SAPS members and handed over to their
counterparts in Zimbabwe and that all the plaintiffs were arrested
separately and were all
transported to J[…]’s Farm where
the police deprived them of freedom by assuming control over their
movements. Each
of them was handcuffed at the time of arrest and
during the interrogation on the farm.  They were not requested
to accompany
the police to the police station in order to answer some
questions and that they agreed.
[80]
The defendants contend that Mrs. M[...] lied under oath about when Mr
M[...] was arrested and
fabricated a story with her son. The
submission is without merit as neither Mrs M[...] nor Mr M[...] were
cross examined on this
fabrication allegation. The purpose of cross
examination, which is to put propositions to witnesses so that they
may respond thereto,
was not utilised by the defendants.
[81]
Ntsikelelo’s Task Team received information that there were
suspects who had escaped from
police custody in Zimbabwe and crossed
the river into South Africa. The inference to be drawn is that the
task Team was out on
a mission to arrest. Defendants’ witnesses
testified that the suspects had committed robberies and had weapons.
They
were regarded as suspects. The mission was therefore to arrest
them, interrogate them and subject them to identification parades,
if
necessary. The facts point out to an assumption of control over the
plaintiffs’ movements from the different places of
arrest. They
were all immediately handcuffed and manhandled.
[82]
Ntsikelelo
testified that Welsh Nyakunga identified the first and third
plaintiffs as the escapees. He therefore had reason
to
arrest the suspects and interrogate them. This is what happened at
J[...]’s Farm. T
he defendants
submit that the plaintiffs had already been assaulted by the
Zimbabwean police when they found them on J[...]’s
Farm.
However, Nyakunga was not called to testify. I draw an adverse
inference against the defendants for not calling Nyakunga,
Edmore or
any Zimbabwean police officer to corroborate this allegation of an
escape from Zimbabwe.
[83]
No charges were proffered against him but he was interrogated and
assaulted with reference to firearms.
This arrest could not have been
lawful as M[...] was arrested and taken straight to Zimbabwe for
alleged crimes committed in Zimbabwe.
Tsikelele had no jurisdiction
to investigate crimes committed in Zimbabwe and arrest suspects in
South Africa without a formal
request from Zimbabwe to apprehend the
suspects.
[84]
The power to effect an arrest without warrant must be exercised in
good faith, rationally and
not arbitrarily.
[29]
The decision to arrest M[...] was objectively irrational and
arbitrary. No reasonable police officer could reasonably have
determined,
in the exercise of his discretion to arrest or not to
arrest, that there were reasonable grounds that warranted the arrest
of M[...].
This is all the more irrational when regard is had to the
uncontested evidence of M[...] that there was no warrant of arrest
presented
to him; there was no warrant of arrest from Zimbabwe; the
Zimbabwean Police were still investigating the crime for which he was

later charged; and there were no reasonable and lawful grounds to
charge him with an offence for which he was arrested when he
was not
even identified at the identity parade. If Tsikelele had reasonable
cause to arrest M[...], he would have done so and charged
him upon
his arrest and detained him at a South African Police Station.
[85]
Section 50 of the CPA, requires that once an arrest has been
effected, the police must detain
the suspect at a South African
Police Station. This was not done, but instead M[...] was detained at
a Zimbabwean Police Station.
Section 50 further requires that the
arrested person shall be allowed to apply for bail. This too was not
done. Section 50 further
requires that should the arrestee not be
released by reason of him having no charges brought against him or
had bail refused, the
arrestee shall be brought before a lower court
as soon as reasonably possible, but not later than 48 hours after his
arrest. This
too was not done.
[86]
In terms of the Zimbabwe Court records,
[30]
M[...] made his first appearance on 2
nd
December 2010 under a charge of robbery which is Section 126 of the
Criminal Code Chapter 9:23 of Zimbabwe. The 2
nd
December 2010, was exactly six days after the arrest M[...] testified
about. The court record further states that charges against
M[...]
were withdrawn on 8 March 2011, a date which is consistent with the
period that M[...] said he had been detained. This is
further
corroborated by M[...]’s mother (“Mrs. M[...]) who
testified that she got a call towards the end of the year
in 2010
from her son who informed her that he had been detained at a charge
office in Zimbabwe.
[87]
She enquired from M[...] as to how he had come to be in Zimbabwe as
he had no passport. She testified
that M[...] told her that he had
been brought to Zimbabwe in the boot of a police vehicle. When she
had finished speaking to M[...],
she enquired from the Zimbabwean
police how her son came to be in Zimbabwe and they told her that he
had been brought by the South
African Police.
[88]
When M[...] testified about the 2012 incident, he stated that after
Tsikelele had violently arrested
him from his home and taken him to
the Beit-Bridge Police Station, the Zimbabwean CID Police came to
Tsikelele’s office where
they were being detained. He testified
that the Zimbabwe Police took pictures of him using a camera. They
then said “
this boy he was once brought to Zimbabwe by
Tsikelele and he was not found guilty and they said they cannot go
with him to Zimbabwe,
they do not see any case against me
”.
This lends credence to M[...]’s version that he was indeed
arrested by Tsikelele and brought to the Zimbabwean Police
in 2010.
[89]
The evidence of M[...] and Mrs. M[...] could not be shaken in
cross-examination. The arrest of
M[...] could not have been rational
or lawful in the circumstances of the evidence. The defendants’
failed to give a version
on this matter and merely made a denial of
ever arresting M[...].
[90]
The probabilities favour the view that the arrest of M[...] in 2010
was unlawful and without
any legal justification and in violation of
the Bill of Rights enshrined in the Constitution.
I
accordingly find that Mr M[...] was in fact arrested and detained by
the second defendants in 2010.
Rendition
and malicious prosecution
[91]
I have found that the arrest and detention of M[...] in South Africa
and Zimbabwe were unlawful.
Compensation for damages suffered in
South Africa is not an issue. The issue in this case is the granting
of compensation to a
person who suffered damages in a foreign
territory as a result of acts performed by his own government. The
unlawful conduct by
the South African police will extend to the
unlawful conduct of the servants of the state to which the South
African police unlawfully
deliver an arrestee. See
Ebrahim
[31]
and
Thandani
[32]
case.
[92]
The defendants, in their amended plea to claim D plead that there are
two distinct causes of
action – one involving the alleged
arrest and detention by the defendants and the other being the
detention by the Zimbabwean
police coupled with the malicious
prosecution of M[...] in Zimbabwe. Hence, they argue, they are not
liable for any unlawful acts
committed in Zimbabwe as this was not
foreseeable by the defendants. Furthermore, the defendants contend,
if M[...] seeks to hold
them liable it was necessary for him to show
that his detention in Zimbabwe was unlawful and that it was effected
by someone acting
on behalf of, or as an agent for, the defendants.
[93]
However, it is apparent that M[...]’s claim is not based on any
wrongful acts committed
by the Zimbabwean police. It is based on two
wrongful acts committed by the second defendants in that they
unlawfully arrested
and detained him in South Africa and thereafter
handed him over to the Zimbabwean police.
[94]
Tsikelele denied the arrest. However as I said, the evidence
establishes that M[...] was unlawfully
arrested by him and the
officers who accompanied him. This was contrary to the provisions of
the Protocol and the Extradition Act
67 of 1962. Tsikelele, a senior
police officer, must have known that it was unlawful to hand over
M[...] to the Zimbabwean police
without following the proper
procedure.
[95]
The evidence is that there were no criminal charges pending against
him at the time of his arrest
and eventual handing over to the
Zimbabwean police.
[96]
The loss of liberty and dignity, assault, detention without trial and
being treated in an inhumane
and degrading way, was occasioned by the
defendants’ wrongful and unlawful acts.  But for
Tsikelel’s actions,
M[...] would have remained in South Africa
and would have been out of reach of the Zimbabwean police.
[97]
When questioned about what the team did once they had found someone
who had committed a crime
in Zimbabwe, Tsikelele, startlingly,
testified that this was a secret and he could not testify about it in
court. This deliberate
failure to reveal what happened to suspects
who had been arrested and were wanted by the Zimbabwean police, point
to the
mala fides
and malice of Tsikelele in handing over
M[...] to the Zimbabwean police.
[98]
In my view there is sufficient connection between the unlawful acts
of the defendants and the
loss of liberty and other constitutional
rights for which damages are claimed by M[...].
[99]
The defence raised in the plea to claim D that the detention in
Zimbabwe was an unforeseeable
event and therefore contributed a
novus
actus interveniens
cannot, on the evidence, be sustained. It
seems to me that a supervening act which is foreseen as a likely
consequence of the unlawful
act does not break the chain of causation
and may be taken into account in assessing damages.
[100]
In
De
Klerk v Minister of Police
[33]
a majority judgment penned by Theron J (Basson AJ, Dlodlo AJ,
Khampepe J and Petse AJ concurring), the Constitutional Court
held
that on the facts of the case, the Magistrate’s unlawful remand
decision did not render the harm that arose from De
Klerk’s
subsequent unlawful detention too remote from the unlawful arrest.
The majority reasoned that the liability of the
police for the
detention after the court appearance should not be determined solely
on the basis of whether the further detention
was lawful, although
that is a relevant consideration. Instead, liability should be
determined in accordance with the flexible
principles of legal
causation. Including constitutionally infused considerations of
public policy.
[101]
In my view, a case has been made out in relation to the claims of
unlawful rendition and malicious prosecution.
Assault
[102]
The onus to establish assault, and damages related thereto, rests on
the claimant. M[...] testified that when
he was arrested in 2010 he
was forcefully handcuffed and put in the back of the Vito. A
sackcloth was put over his head and he
was assaulted. He did not give
much detail. However, Mrs. M[...] testified that M[...] had told her
that he had been injured under
the soles of his feet and that he had
been beaten by the police. The defendants merely denied the assaults.
[103]
In my view, M[...] has made out a case for the assault that occurred
in 2010 at the hands of the second defendants
and the Zimbabwean
Police.
The
2012 incident – all three plaintiffs
The
evidence
Mr
M[...]
[104]
M[...] was the first witness for the plaintiffs. His testimony
covered the period 2 – 3 January 2012, being
the date of his
unlawful arrest and detention, and rendition to Zimbabwe. It also
covered the assaults on him at J[...]’s
Farm in South Africa,
to several days later towards the end of January 2012, when he was
called to a police identity parade to
identity his assailants or
arrestors.
[105]
M[...] testified that on the 2 January 2012, he had been to a bar in
M[…], called the “Cocktail Bar”.
He then left for
home and during the night around midnight to 01:00 hours. The police
came to his home, broke the door, assaulted
and handcuffed on him and
placed him in a police van.
[34]
[106]
He testified that Tsikelele, in the company of the police officers he
identified in his 2010 arrest, as well as
others whom he did not
know, who included Zimbabwean police officers, arrested him. He could
distinguish the Zimbabwean police
by the fact that they wore the
Zimbabwean Police uniform.
[35]
[107]
When he was arrested at home, he was with his mother, his younger
brother, his toddler son, as well as friend
by the name of M[…].
There were also tenants at his house who lived in the backrooms
within the yard. He heard the external
door into the sitting room
being broken down and some persons coming in. At this point in time
he was in the passage and that is
where they met him. He testified
that he met Tsikelele who pushed his mother against the fridge, then
grabbed him and took him
to his bedroom, which was searched. The
search yielded nothing.
[108]
Tsikelele and Mandla then started assaulting him saying they were
looking for a firearm and he should give it
to them. Tsikelele was
the one leading the charge. He was then taken out of the house and
put in the back of a van.
[109]
His mother enquired of the police as to why they were doing what they
were doing, Tsikelele responded by saying
that he was a “
tsotsi
”
and said there was a person who was arrested in Zimbabwe in
possession of a firearm and that unnamed person had said the
firearm
belonged to M[...]. His mother asked them not to beat him up but take
him and lock him up if he was indeed a “
tsotsi
”.
This all happened without a search warrant or a warrant of arrest
either from the South African or Zimbabwean Police.
[110]
Inside the van, he found another young man by the name of M[…]
whom he knew. They were taken to the South
African Beit-Bridge Police
Station. Once there, he was taken to Tsikelele’s office and on
the way there he was being assaulted.
[111]
M[...] testified that once inside Tsikelele’s office, the
Zimbabwean police officers took photos of him
and said, “
this
boy he was brought to Zimbabwe by Tsikelele and was not found guilty’
referring to me.
”
[112]
He testified that the Zimbabwean police officers had said “
they
cannot go with me to Zimbabwe, they did not see any case against
me
”
[36]
,
and left me at the South African Police Station seated there. The
Zimbabwean police took Michael along with them to Zimbabwe.
M[...]
estimated the time to be around 02:00 – 03:00 hours on the
morning of 3 January 2012.
[37]
[113]
He testified that at about 12 noon, both Tsikelele and Mandla
accompanied by other police officers came
to the police station and
started to assault him for about 15 minutes using a ‘
donkey
piel
’
(apparently a baton carried by police officers and security guards)
and said they were taking him through to Zimbabwe.
[38]
He was put into the boot of the police Vito with his hands handcuffed
behind his back. He was then taken across the border into
Zimbabwe by
the South African police. On arrival he was made to sit in the sun
for about 20 minutes
[39]
and
it was a very hot day.
[40]
He
described the temperature as being “
too
hot
”.
[41]
Tsikelele and the other South African officers all sat in the shade.
This happened within the premises of the Zimbabwean Police
Station.
[114]
M[...] testified
[42]
that
inside the police offices he found two iron tables placed side by
side. He was still handcuffed with his hands behind his
back. An iron
rod was placed between his knees and he was in a bending position. He
was made to hang in the air between the tables
and a bag was put over
his head and the police fastened it under his chin. The bag covered
his whole head. He was now hanging in
mid-air between the tables. His
face was facing downwards. His feet were now facing up and he could
not move. He was beaten under
his feet and at the same time the
police were pouring water over his head. They were beating him on the
top of his foot with a
cane. He was assaulted until he lost
consciousness and water was poured on him to regain consciousness. On
gaining consciousness,
Tsikelele made him to trot in one spot so that
his blood could circulate. That is when he discovered he had a broken
leg and told
the police that he could no longer trot in one spot as
he was in excruciating pain.
[43]
The assaults continued despite the broken leg and the loss of
consciousness.
[115]
He was then told that he was being taken back to M[…], South
Africa to go in search of R[…], M[…]
and one E
M[…].
[44]
This was the
first time these names were mentioned to him. He was once again
placed in the boot of the Vito. They arrived in Musina
at around
16:00 hours. E[…] was the first to be fetched and thereafter
they fetched the two other plaintiffs and they were
then taken to a
local farm called J[...]’s Farm. M[…] was found at
M[…]’s house and they then went to
R[…]’s
house. The house belonged to R[…]’s mother. They broke
down the door looking for R[…] but
did not find him.
[116]
M[...] further testified that Tsikelele called R[…] and
enquired as to his whereabouts. R[...] said he
was at a scrap yard
called “Copper Pot”. They then moved in the police convoy
to Copper Pot.
[45]
They found
R[...] there with grease on his hands. Mandla told him to wash his
hands and then assaulted R[...] with the back of
a “long gun”
on his head.
[117]
The police convoy then drove off with the three plaintiffs and E[...]
to J[...]’s Farm which was located
about three kilometres away.
Once at the farm, they stopped under a big Baobab tree. They let
R[...], M[...] and E[...] alight
from the vehicle.
[118]
M[...] testified that because of his injuries he could not alight
from the vehicle on his own. The police dragged
him out of the car
and placed him on the ground. He lay there as he was unable to sit.
Tsikelele told him to “
sit
up as this was not his home where he can lie down
”.
[46]
He was all this time being beaten with a cane to make him sit up when
he was in pain from the assault in Zimbabwe and could not
do so. In
frustration and anger M[...] testified that he told Tsikelele that
rather than sit up, “
he
would rather kill him
”.
[47]
[119]
He could not see properly as to what was happening to the other
plaintiffs as he was in pain and lying on the
ground but could hear
that they were being assaulted. The assaults on him by Tsikelele
continued while he was on the ground.
[120]
He testified that he told the police that he was thirsty. Tsikelele
made a phone call to his colleagues that they
should bring some water
and mageu. (Apparently, mageu is a drinkable sour porridge which is a
thirst quencher and a meal all in
one.) The reason the mageu was
requested was because he was weak and hungry, as he had not eaten the
previous night before the
unlawful arrest by the defendants. After
about thirty minutes, two police officers (Welcome and Sekgowa)
brought the water and
the mageu which were given to him. In the
meantime, M[...] testified, that they were being assaulted with open
hands and a cane
under their feet. He testified that he had to be
assisted to drink the water and the mageu as he was very weak.
[48]
[121]
The beatings eventually came to an end and he was transported in a
police Ford Focus by officers Maumela and Jeffrey
from the farm to
his home on the instruction of Tsikelele. M[...] testified that the
police officers assigned to transport him
home, dumped him near a
water drainage which was about one hundred metres from his home. It
was dark and the time was around 21:00
to 22:00 hours. He was in pain
and could not walk. He was screaming for help. A young man, M[…],
came to his assistance
and carried him to his house where he found
his mother watching television. When she saw him she immediately
called an ambulance
to take him to hospital.
[49]
He arrived in hospital with his bloodied clothes and he was examined
by a doctor. The blood had been coming through his mouth,
nose, hands
and through his head as a result of the assaults.
[50]
He was discharged and returned home by taxi the same night.
[122]
In the following days, he consulted another doctor due to his
injuries. His leg was X-rayed and found to have
been broken and a
Plaster of Paris (“POP”) was put on it. He could not
relieve himself and had no appetite. He could
neither urinate or pass
stools nor eat for fourteen days after the assault.
[51]
[123]
M[...] then showed the court a newspaper clipping which had his
photograph. He was in a Plaster of Paris and had
marks or scars on
his hands and wrists which he testified were from when he was hit
with a knopkierie on top of the handcuffs on
his hands.
[52]
Mr
R[...]
[124]
R[...] testified that on 3 January 2012, he was employed as a
mechanic at a place called “Copper Pot”.
He testified
further that he received a telephone call from E[...], who said the
police wanted to speak to him. Tsikelele then
came on the phone and
told him he was looking for him. Tsikelele instructed him to remain
where he was and shortly thereafter,
the phone rang again. It was a
call from E[...]’s number. A police officer told him that they
were at Copper Pot and he could
come out. He came from the back of
the shop and found many police officers there. He was instructed to
go and wash his hands and
was escorted by two police officers. One of
the officers who was carrying a “big gun” assaulted him
with the back of
the gun on the back of his head and told him to
hurry up. He identified this officer as Mandla Msengi. He could not
identify the
second police officer, but knew him by sight. He was
made to sit at the back of a police double cab vehicle with an
officer guarding
him with a gun pointed at him. He testified that
Tsikelele instructed the police officer who was guarding him to keep
his weapon
ready to fire and remove it from safety mode. He further
testified that he saw M[...] in the Police Ford Focus vehicle while
at
Copper Pot.
Mr
M[...]
[125]
M[...] testified that he was born in 1970 and worked with a group of
professional hunters and after the incidents
relating to this matter
he never returned to do his work with them due to ill health and
injuries he sustained in the assaults
by the defendants.
[126]
The testified that he recalled the incident where he was assaulted by
a group of police officers for no reason.
He could not recall the
date as he was illiterate. He testified that he was at his
brother-in-law’s house, when he heard
cars pull up outside the
yard. A female police officer named Tshimagadzo, came up to him and
slapped him with an open hand across
his face. She then called a
certain police officer by the name of Tsikelele. He said Tsikelele
approached him and also slapped
him three times across the face. He
was then dragged to a police vehicle, being a Ford Focus sedan.
Inside the vehicle was a friend
of his who was part of the police
force and his name was Jeff. He testified that the police convoy
headed to a place called M[…]
to look for R[...]. At M[…]
they were told he was not there but at Copper Pot. The convoy then
headed for Copper Pot. On
arrival at Copper Pot, R[...] was called
and he came out with oily hands. He was told to wash his hands and on
the way to wash
his hands he was assaulted by a police officer at the
back of the head with a “big gun”. The officer who hit
him held
the firearm with both hands. They then headed for J[...]’s
Farm which he knew as he had been there before with hunters to
hunt.
[127]
The testimony of R[...] and M[...] regarding what transpired at the
farm is very similar. They both testified
that they were told to
alight from the vehicles and sit on the ground with their legs
stretched out. M[...] was then brought out
of the Vito. He was being
dragged from the Vito while on his back. M[...] was being assaulted
on his back with a sjambok (a cane)
and told to sit up. He just lay
there on his side. M[...] could not sit up and told the police
officers that they “
should rather kill him
”. This
evidence is similar to that of M[...] in his examination in chief.
Tsikelele then said mageu and water must be brought
for M[...]. The
mageu and water was brought for M[...] and thereafter Tsikelele gave
the instruction that M[...] be taken back
to the township where he
lived. Two police officers picked him up and put him in the car and
left.
[128]
R[...] testified that he saw E[...] being led out of the Vito and
handcuffed with his hands behind his back. (This
evidence was also
supported by M[...] who testified that he was in the Vito with
E[...].) He testified that Tsikelele told him
that he (Tsikelele),
had arrested a person in Zimbabwe in possession of a firearm and that
the arrested person said the firearm
belonged to R[...]. Tsikelele
then told the Zimbabwean police officers (two males and two females)
who were present on the farm
to take R[...] along with them back to
Zimbabwe because the firearm found in Zimbabwe belonged to R[...]. He
identified them as
being Zimbabwean as they introduced themselves as
such and told him they had come to take him to Zimbabwe as his friend
had been
arrested in Zimbabwe with a firearm.
[129]
R[...] said he asked Tsikelele whether he could be arrested in this
country for a firearm found on another person
in a different country.
Tsikelele did not answer. Instead, Mandla rebuked him for asking
Tsikelele such “
shit
” and he was slapped across
his face close to his left ear, causing permanent damage to his
eardrum. They were assaulted under
the feet in the same manner that
M[...] had testified he had been assaulted by the defendants.
[130]
He testified further that whilst on the way to Zimbabwe they arrived
at a farm called Toffee Farm and that is
when M[...] started vomiting
several times. Sekgowa ordered the vehicle to stop. Makamu then came
and said they must be taken back.
Sekgowa said that they were
seriously injured and if they died in their hands, the other police
officers who had assaulted them,
would deny that they assaulted them.
M[...] was then taken back to his shack and he testified that he was
placed at the door of
his shack. It was dark and he could not see
inside the shack but he knew where his bed was and he just climbed on
top of it and
slept.
[131]
R[...], who was now left with E[...] and the police, complained to
Sekgowa that his private parts were burning
because of the pepper
spray which had been sprayed on them by the police. M[...] testified
that he was also sprayed on his private
parts with a pepper spray.
(This is also recorded in the J88 forms.)
[132]
R[...] testified that he later went with M[...] and a friend (M[…])
to the police station. They found R[...]’s
mother already
there. They were handed some J88 forms and were told to go to the
hospital. At the hospital, they were given injections
and pills and
told to come back the next day once the forms had been completed.
[133]
The next day they went to the police station and handed over their
J88 forms. On their way out they were accosted
by the police in the
Vito and R[...] was told to stop and that they must all alight from
the car. They were made to stand in a
line. Makamu took photos of
them and then slapped R[...] twice on the face and told him “
return
to the police station and report another case
”.
[134]
R[...] testified that they returned to the police station to report
the matter and a Captain Ringani told him
that he should tell all
this to the CID officers who would come and take their statements.
M[...] testified that some police officers
came and took statements
from them. He said his statement was never read back to him. He
further testified that an identity parade
was held for the
complainants  to identify the police officers who assaulted
them. He testified that only Maumela was at the
parade.
Discussion
regarding the 2012 incident
Unlawful
arrest and detention (M[...] and M[...]); rendition (M[...])
[135]
The witnesses for the defendants testified that M[...] and M[...]
were found on J[...]’s Farm after being
pointed out by Welsh
Nyakunga. This is the version given by the defendants in all the
claims relating to M[...] and M[...] and
to a certain extent R[...].
In my view, the probabilities favour the version of the plaintiffs.
[136]
M[...] testified about his arrest at home. This evidence was fully
corroborated by his mother in all respects
including the type of
assaults that took place, the voices of ladies outside the home, the
breaking down of the door, calling M[...]
a “
tsotsi
”
as well as pushing his mother against the fridge.
[137]
The evidence of M[...] was not discredited in cross-examination. Mrs.
M[...] was a credible and honest witness.
She did not embellish her
evidence and her anguish at recalling these events was clear to the
court.
[138]
In cross-examination Tsikelele testified that officers Mercy and
Maluleke (who were both not called to testify)
had been to M[...]’s
house on 3 January 2012 and were told by Mrs. M[...] that M[...] had
not been home and had been missing
for a number of days. This version
was never put to M[...] or Mrs. M[...] in cross-examination by the
defendants’ counsel.
Tsikelele’s evidence was clearly a
fabrication considering the undisturbed evidence of M[...] and Mrs.
M[...].
[139]
I am of the view that the evidence of M[...] and his mother the more
probable version of the events that took
place on 3 January 2012.
[140]
Tsikelele testified that he left in a motor vehicle driven by Sekgoa
and this evidence was supported by Sekgoa.
Sekgoa further testified
that he was never at the farm. Tsikelele was waiting for him outside
of the farm on the N1 National Road
and this is where he picked him
up and that he (Sekgoa) was in the company of Makamu at the time.
[141]
The plaintiffs testified that both Makamu and Sekgoa were the ones
who came in a double-cab bakkie to bring mageu
and water to the farm.
The plaintiffs could not finger Sekgoa and Makamu if they had not
entered the farm as testified by the defendants.
The probabilities of
the plaintiffs knowing that Sekgoa and Makamu were together on that
day would be non-existent had Sekgoa and
Makamu not entered the farm
and simply picked up Tsikelele from outside the farm and the N1.
[142]
When Tsikelele was asked in cross-examination about other officers
that joined them at the farm, he testified
that Sekgoa and Makamu
came there later. He testified that there was information that was
being pursued (about the firearms), and
he spoke to them regarding
the information. Tsikelele, however in re-examination, changed his
testimony about why Sekgoa and Makamu
were there and now testified
that they only came to pick him up as he needed transport. In my
view, Sekgoa was dishonest when he
testified that he and Makamu did
not enter J[...]’s Farm.
[143]
Maumela testified that he was part of Crime Intelligence and received
a call past 13:00 hours from Maluleke to
go to the farm. He testified
that he found Tsikelele and Msengi already there. On the other hand,
Tsikelele, in chief, testified
that he left the farm between 12:00 –
13:00 hours. Part of Maumela’s evidence was that after the
others had been pointed
out by Welsh Nyakunga, he then went to
question them. However, prior to questioning them, they had to be
secured and this was done
by officer Sekgoa. He then testified that
Maluleke and Ramaite came later on to the farm. Tsikelele, in
contradiction to Maumela’s
evidence, testified that he found
Maluleke already on the farm and that Sekgoa came later on to the
farm.
[144]
Further, in chief, Tsikelele testified that when Edmore was arrested
in Zimbabwe, he had informed them that the
people who were committing
the crimes were at the weigh bridge, which was next to the farm.
These people had been identified by
Edmore as M[...], E[...], M[...]
and Welsh. Mercy Netshiavha (“Mercy”), in her affidavit
stated that she and Maluleke
went to M[...]’s house to look for
him and were told by Mrs. M[...] that he had been missing from home
for a number of days.
This evidence is not plausible. The critical
question would be why would the intelligence police officers go to
M[...]’s
house to look for him when clearly Edmore had told
them that M[...] was left next to the weigh bridge. This was further
compounded
by the fact that Tsikelele testified that he left the farm
between 12:00 – 13:00 hours, yet Mercy’s affidavit says
she and Maluleke went to M[...]’s house at 12:00 hours. Why
would they go to his house when they knew where he was, as Tsikelele

testified that Maluleke was already at the farm when he (Tsikelele)
arrived.
[145]
Tsikelele further testified that when he left the farm (12:00 –
13:00 hours), they all dispersed from the
farm, yet, Mercy in her
affidavit stated that, at about 15:00 hours, she left her colleagues
at the farm for her office as she
had work to do there. This is
contradictory to Tsikelele’s evidence. Mercy further states, in
her affidavit, that she left
for her office after leaving M[...]’s
house and then received a call from Maluleke to say they must go to
the farm. She went
further to state that they then left in a convoy
and found four men there.
[146]
This version, supports the plaintiffs’ evidence that they were
taken to the farm in a convoy of vehicles.
This meant that they went
to the farm in the convoy after 12:00 hours, being the time she and
Maluleke had gone to check on M[...]
at his home. This evidence is
contradictory to the time that Tsikelele testified about his leaving
the farm and further supports
M[...]’s evidence that he was
taken to Zimbabwe at around 13:00 hours from Tsikelele’s
office.
[147]
Mercy, in her affidavit, further stated that she arrived at work
after 09:00 hours and was briefed about Edmore’s
wife and the
wife was questioned about Edmore’s whereabouts. Tsikelele
testified that they went to Edmore’s wife at
02:00 hours,
questioned her and then followed her to Zimbabwe. Further Mercy’s
affidavit stated that she was with Msengi
at 09:00 hours and left
with him for Pont Drift where she found other members of ‘CIG
Musina’ (the Task Team). The
Task team then went to Edmore’s
house and found his wife there. This purportedly happened after 09:00
hours, in contradiction
to Tsikelele and Msengi’s evidence that
this happened in the early hours of the day (01:00 – 02:00
hours).
[148]
Msengi, in cross-examination, refuted this evidence and said that at
all times he was with Tsikelele from 02:00
hours when the operation
started. In cross-examination Tsikelele testified that he was the
leader of the Task Team. This means
that Tsikelele was there at Pont
Drift where Mercy was directed to go by Maluleke. This is borne out
by Msengi who testified that
he was at all times with Tsikelele.
Tsikelele himself testified that they travelled in a convoy and that
Mercy’s vehicle
was also there. However, Tsikelele testified in
cross-examination that he did not know a place called Pont Drift.
This in my view
is part of the fabrication of the evidence by the
witnesses for the defence.
[149]
The evidence, in my view, points to one reasonable inference, being,
that M[...] was unlawfully arrested by Tsikelele
at his home in the
presence of his family, taken to Beit-Bridge Police Station and
renditioned to Zimbabwe and later taken to J[...]’s
Farm. The
evidence of both M[...] and M[...] as to the circumstances of them
being on the farm is the most probable in this matter.
[150]
Furthermore, they could not have been pointed out by Welsh Nyakunga,
as M[...] was taken from his home in the
presence of his family. The
version of Welsh Nyakunga was not put to M[...] in cross-examination.
The evidence of M[...] and M[...]
regarding the arrest and detention
of R[...] are corroborated by each other. The evidence of all three
plaintiffs from the unlawful
arrest of R[...] to reaching the farm is
also corroborative of each other as all the plaintiffs were together
at the same time
only from the time of the arrest of R[...].
[151]
The probabilities are that all three plaintiffs were taken to the
farm by Tsikelele and others of the second defendant
and could not
have been pointed out by Welsh Nyakunga as suggested by the
defendants. The evidence of M[...] regarding his rendition
to
Zimbabwe is also the only probable version that has been presented to
the court.
[152]
I find that a proper case has been made out for the claim for the
unlawful arrest and detention of both M[...]
and M[...] and the
rendition of M[...].
Unlawful
arrest and detention (R[...])
[153]
The defendants denied arresting R[...] and his presence at J[...]’s
Farm where most of the assaults and
the unlawful detention took
place. It was put to R[...] in cross-examination that Tsikelele would
testify that he was at J[...]’s
Farm on the date and time that
R[...] claims to have been arrested and assaulted and that he would
further testify that R[...]
was never at J[...]’s Farm.
[154]
It was further put to R[...] that Msengi will deny ever hitting
R[...] with an open hand and with a gun on the
back of his head and
that all police officers will deny that anyone was arrested or
assaulted. Tsikelele testified that Msengi
is so short that he could
not have reached R[...]’s head with the back of a rifle. (My
observation was that Msengi is of
average height and could probably
use a rifle or even a pistol that way.)
[155]
M[...] testified that he was with E[...] in the Vito and that there
was talk of going to arrest R[...] at his
home and that is where the
convoy headed (M[…]). This was corroborated by M[...] who was
in another police vehicle and could
hear and see what the police were
doing. When he was not found in M[…], Tsikelele instructed
E[...] to make a call to R[...]
enquiring as to his whereabouts.
E[...] called R[...] and reported to Tsikelele that R[...] was at
Copper Pot. M[...] and M[...],
testified that the police officers
then said that R[...] is at Copper Pot and that they should go there.
Clearly, there was no
need to go to Copper Pot if there was no need
to arrest R[...]. M[...] could not have known that the convoy was
taking the direction
of Copper Pot because the call was made in
another vehicle which carried only M[...] and E[...]. He therefore
could not have been
privy to this information.
[156]
The assault on R[...] by Mandla was corroborated by both M[...] and
M[...]. Even under cross-examination their
versions were similar as
to the events of the day. M[...] testified that he did not see in
which vehicle R[...] was put in and
so did M[...]. They did not add
to their evidence things that they did not see.
[157]
The testimony of R[...], M[...] and M[...], as to how M[...] was
removed from the Vito corroborated each other.
The injuries sustained
by M[...] are consistent with this testimony as well. The fact that
M[...] went as far as saying that “
they should rather kill
him
”, is corroborated in this evidence.
[158]
Tskilele testified that he left the farm in a car of a colleague and
then went to the border to book in Welsh
Nyakunga at Musina Police
Station before 14:15 hours. Msengi, on the other hand, testified in
chief that he was the one that took
Weslsh Nyakunga and the rifle to
the Musina Police Station to book him in.
[159]
All the plaintiffs testified to the arrest. Their versions are
credible and are accepted by this court. From the
totality of the
evidence before court, I find that R[...] was indeed unlawfully
arrested and detained by the defendants on 3 January
2012.
Assault
(M[...], M[...] and R[...])
[160]
The plaintiffs testified about the horrific and degrading assaults
inflicted on them by the police officers led
by Tsikelele.
[161]
M[...] testified about how he was arrested whilst still in his
underwear at his home in January 2012. His evidence
was corroborated
by his mother in all respects. M[...] testified that he was assaulted
inside his house by a group of about ten
police officers. He was
bundled into the boot of the Vito. This all transpired in the
presence of his toddler son, who it was testified
“cried
bitterly” at the scene of his father being manhandled and
paraded naked in front of his mother, younger brother,
toddler son as
well as neighbours and tenants.
[162]
He testified that the police broke down the door to his house,
entered and pushed his mother against the fridge.
They then got hold
of him and started assaulting him insisting they were looking for a
gun. This was done without a warrant or
any reasonable suspicion for
the presence of a firearm on his person or in the house.
[163]
M[...] further testified that he was still in his underwear when they
dragged him outside of the house. They put
his trousers over his head
and took him to the boot of the Vito which was parked on the road
outside. When his mother sent his
younger brother to give him a
second pair of trousers, the police refused to let him wear them and
said he would wear those that
were covering his head.
[164]
M[...] testified that whilst leading him to the police vehicle he was
still being assaulted. They assaulted him
with a
donkey piel
(baton). He was later taken to Zimbabwe, where the assaults and
humiliation continued. He testified that when the police were
bringing
him back to South Africa from Zimbabwe, they handcuffed him
and hit the top of the handcuffs with a knopkierie until they sunk
deep into his flesh. He showed these scars on his hands to the court.
[165]
M[...] testified that whilst in Zimbabwe, he was assaulted mainly on
his feet until he sustained a broken leg.
The evidence of this was
shown to the court in the form of hospital records and a newspaper
article on his assault by the police.
[166]
Maumela, who was a defence witness, testified that when he was at the
farm, he found M[...] and M[...] with minor
injuries. He further
testified that he later found M[...] walking away from the farm after
they were let go and gave him a lift.
This evidence is rejected as
false. It is highly unlikely that M[...] could walk on his own two
feet as it was testified by all
the plaintiffs that he could barely
sit on his own. The hospital records also show that he was carried
into the hospital
[53]
and
he testified that he was carried into the taxi when he left the
hospital.
[54]
The medical and
documentary evidence, shows that M[...] had sustained a broken leg.
He was carried into the house by M[…]
and later taken to
hospital by ambulance and his leg was put in a Plaster of Paris cast.
M[...] further testified that despite
all these injuries, the police
continued to assault him at the farm.
[167]
The assaults on R[...] and M[...] were almost similar save in certain
respects. I have already referred to most
of them. What is most
striking about their assaults and injuries is that where they
testified about being assaulted at the same
time (i.e. at the farm),
their injuries were similar. This leads to one reasonable inference
under the circumstances, and that
is that they were at the farm and
assaulted at the same time.
[168]
It is clear that the most humiliating aspect of their assault, was
being sprayed with pepper spray on the genitals
and face. Both R[...]
and M[...] testified that when they were taken away from the farm in
the bakkie M[...] started vomiting after
being affected by the
teargas in his eyes, to the point that it led to Sekgoa saying that
“
let’s take these people back to their homes, as we do
not want them to die in our hands and that the other shift would deny

that they assaulted them
”.
[169]
This is a far cry from the minor injuries that both Maumela and
Tsikelele testified to have observed on the plaintiffs
when they
purportedly found them on the farm.
[170]
The testimony about that day, brought tears to M[...] whilst giving
evidence in chief. When the court enquired
as to whether he needed
time to regain composure, M[...] stated that “
when I recall
that day, I remember that day and my tears just flow
” and
implored the court to proceed with his testimony as giving him time
to regain his composure would be a waste of time.
This, he said, was
due to the fact that he would always cry when recounting this episode
of his life. It demonstrates the intensity
of the assaults on the
plaintiffs by the police. No evidence was led by the police to
disturb the plaintiffs’ evidence. They
all gave contrived and
concocted stories and sought the court to believe the most
improbable, that is, that the police simply found
the plaintiffs on
the farm and asked them if they had knowledge of the robberies
allegedly carried out by them and whether the
guns found on two other
persons belonged to them. When the plaintiffs denied any knowledge of
these allegations, they simply let
them go and the police left the
farm. This is highly improbable in the face of what information the
police allege they already
had on the plaintiffs.
[171]
I find that the claims for assault on each of the plaintiffs has been
established.
Costs
[172]
Mr Malindi SC and Mr Mofokeng, who appeared for the plaintiffs,
submitted in their heads of argument that the
plaintiffs seek an
order for costs on the attorney and client scale, in order for the
court to mark its disapproval of the conduct
of the defendants. It
was submitted that the plaintiffs should not be out of pocket for the
costs of the litigation as a result
of the egregious behaviour of the
second defendants.
[173]
On 8 June 2017 the plaintiffs’ attorneys delivered Rule 37
enquiries to the defendants seeking admissions
and also making
extensive enquiries regarding claim 1A and claim D which were
relevant to the first plaintiff. Fifteen questions
were posed to the
defendants, the gist of which was to establish the defendants’
liability for acts against the first plaintiff
by the Zimbabwean
police.
[174]
When Colonel Tsikelele signed the affidavit in support of the
application to amend the plea on 6 August 2019 he
did so knowing that
his instructions to his legal team were a fabrication of a new
version and
mala fide.
He, together with a number of other
defence witnesses who testified during the trial, was mendacious and
it became apparent that
they colluded with one another to cover up
the facts.
[175]
The trial, which should have been concluded in November 2017, only
finished in June 2020 and then too, only on
the question of
liability.
[176]
In my view a special costs order is called for to mark this court’s
disapproval of their conduct. They acted
with impunity and it total
disregard of the plaintiff’s rights, which find protection in
the Bill of Rights. The plaintiffs
should not be out of pocket for
vindicating their rights.
[177]
In all the circumstances I make the following order:
1.    The
defendants are held liable for the amended pleaded claims of the
plaintiffs.
2.
The issue of the quantum of the damages is postponed
sine die.
3.    The
defendants are to pay the costs of the trial on the issue of
liability jointly and severally, the one paying
the other to be
absolved on the attorney and client scale. The costs are to include
the costs of two counsel including the costs
of senior counsel where
so employed.
RANCHOD,
J
JUDGE
OF THE HIGH COURT
Appearances:
For
plaintiffs  :

Adv GC Malindi SC & Adv T Mofokeng
Instructed by Masewawatla
Attorneys
c/o John Tribelhorn
Attorneys
379 Queens Crescent
Sanwood Office Park No. 4
Lynnwood
Pretoria
For
defendants:

Adv S Maritz SC & Adv M Majoko
Instructed by State
Attorney
316 Thabo Sehume Street
Pretoria Central
Pretoria
[1]
Constitution
of the Republic of South Africa,
Act
108 of 1996.
[2]
Act 67 of 1962.
[3]
Act 51 of 1977.
[4]
Defendants’
application to amend their plea: Bundle L page 1.
[5]
Notice of amendment of defendants’ plea: Bundle L page 9.
[6]
Minister
of Justice v Hofmeyr
(952/2016)
[2019] ZAECMHC 9 (26 February 2019).
[7]
Duncan
v Minister of Law and Order
1986
(2) SA 805
(A) at 818G-H.
[8]
Mabona
and Another v Minister of Law and Order and Others
1988 (2) SA 654
(SE) at 658 G-H.
[9]
Woji v
Miniter of Police
2015 (1) SACR 409
(SCA).
[10]
Minister
of Safety and Security and Another v Carmichele
2004 (3) SA 305
(SCA)
(2004) (2) BCLR 133
; [2003] 4 All (SA) 565
paras 34-38 and 43.
[11]
Manamela
v Minister of Justice
1960
(2) SA 395
(A).
[12]
President
of the Republic of South Africa v Quagliani
2009
2 SA 466
(CC) at paragraph 1.
[13]
The
Protocol was signed in 2002 and entered into force on 1 September
2006. In
Minister
of Home Affairs and Another v Tsebe and Others
2012
(5) SA 467
(CC), the Constitutional Court took note of the fact that
South Africa is a party to the SADC Extradition Protocol.
[14]
S
v Ebrahim
[1991] ZASCA 3
;
1991
(2) SA 553
(A).
[15]
1989 (2) ZLR 20
(SC).
[16]
Bundle A (Plaintiff’s bundle) page 45.
[17]
2000 (1) SA 1
CC at para [61].
[18]
Case
Number: 5571/2007 [2019] ZAKZPHC 47;
[2020] 1 All SA 188
(KZD) (19
July 2019).
[19]
Gumede
at para [107}.
[20]
Ibid
at para
[110].
[21]
Ibid
at para [111].
[22]
Gumede
(supra)
at [86]
[23]
Gumede
(supra) at [89]
[24]
2010
JOL 25782
(KZP) at [12]
[25]
2008
(1) SACR 56
(CC) at [20]
[26]
Rex
v Mazema
1948
(2) SA 152
(E)
[27]
Minister
of Safety and Security v Sekhoto and
Another
[2011]
2 All SA 157
(SCA) at [31]
[28]
1951
(3) SA 10
(A) at 17C-D
[29]
Minister
of Safety and Security v Sekhoto and Another
2011
(5) SA 367
(SCA) at paragraph 38.
[30]
Page 45 of Bundle A (Plaintiffs’ bundle).
[31]
Supra.
[32]
Supra.
[33]
De
Klerk v Minister of Police
(329/17)
[2018] ZASCA 45
;
[2018] 2 All SA 597
(SCA);
2018 (2) SACR 28
(SCA)
(28 March 2018).
[34]
Page 179 Transcript Vol. 1 paragraph 1.
[35]
Page 23 Transcript Vol. 1 paragraph 1.
[36]
Page
30 Transcript Vol. 1 paragraph 1.
[37]
Page
30 Transcript Vol. 1 line 18.
[38]
Page
31 Transcript Vol. 1 line 23.
[39]
Page
35 Transcript Vol. 1 line 16.
[40]
Page
33 Transcript Vol. 1 line 18.
[41]
Page
36 Transcript Vol. 1 line 3.
[42]
Page
38 Transcript Vol. 1 line 3-24, page 39 line 1-25, page 40 line 1.
[43]
Page
40 Transcript Vol. 1 line 3-18.
[44]
Page
43 Transcript Vol. 1 line 3.
[45]
Page
49 Transcript Vol. 1 line 1-9.
[46]
Page
53 Transcript Vol. 1 line 4.
[47]
Page
53 Transcript Vol. 1 line 11.
[48]
Page 56 Transcript Vol. 1 line 7 and 17.
[49]
Page 59 Transcript Vol. 1 line 10-20.
[50]
Page 64 Transcript Vol. 1 line 18.
[51]
Page 65 Transcript Vol. 1 line 1-16.
[52]
Page 44 Transcript Vol. 1 lines 15 to page 45 line 15.
[53]
Hospital record.
[54]
Transcript.