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[2017] ZASCA 6
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Phasha and Others v Minister of Police (70/2016) [2017] ZASCA 6 (10 March 2017)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not reportable
Case
No: 70/2016
In
the matter between:
NDIVHUWO
CATHRINE
PHASHA
FIRST
APPLICANT
ZONDEKA ROSELETA
MATHEBULA SECOND
APPLICANT
NKHUMELENI CALVIN
NEDOMBELONI THIRD
APPLICANT
SAMUEL M
MUKOSI FOURTH
APPLICANT
PFULANI JOEL
MASHAVA FIFTH
APPLICANT
NYELISANI ALBERT
RAMAKUELA SIXTH
APPLICANT
AVHAPFANI
JOSEPH
MUNYAI SEVENTH
APPLICANT
MAGEZI
JOSEPH
KUBAYI EIGHTH
APPLICANT
ELIAS
VALOYI NINTH
APPLICANT
ROBERT
H
CHAUKE TENTH
APPLICANT
RESIMATI
SAMUEL HLONGWANE ELEVENTH
APPLICANT
ABEL
MALULEKE TWELFTH
APPLICANT
MMBONENI
RAMAKAVHI THIRTEENTH
APPLICANT
TSHILIDZI
GODFREY
MUDAU FOURTEENTH
APPLICANT
MOLOKO
ELVIS
TLOU FIFTEENTH
APPLICANT
MAROPENG
SATHEKGE
SIXTEENTH
APPLICANT
and
MINISTER
OF
POLICE RESPONDENT
Neutral
citation:
Phasha
v Minister of Police
(70/2016)
[2017] ZASCA 006
(10
March 2017)
Coram:
Ponnan,
Theron, Petse, Zondi and Van der Merwe JJA
Heard:
21
February 2017
Delivered:
10
March 2017
Summary:
Appeal: special
leave to appeal in terms of
s 16(1)
(b)
of the
Superior Courts Act 10 of 2013
: intended appeal raises only
factual issues in respect of which the prospects of success are poor:
no special circumstances to
merit further appeal: special leave
refused.
ORDER
On
appeal from
Gauteng
Division of the High Court, Pretoria (Baqwa J and
Strijdom AJ sitting as
court of appeal):
The application for
special leave to appeal is dismissed with costs.
JUDGMENT
Van
der Merwe JA (Ponnan, Theron, Petse and Zondi JJA concurring):
[1]
This is an application for leave to appeal and, if granted, the
determination of the appeal itself. The sixteen applicants in
this
matter sued the respondent, the Minister of Police, in the
magistrate’s court for the district of Soutpansberg for damages
arising from their alleged unlawful arrest and detention. The second,
eleventh and thirteenth applicants also sued for damages
for alleged
assault. At the conclusion of the trial, the magistrate found for the
respondent and dismissed all the claims of the
applicants with costs.
The applicants unsuccessfully appealed against this order to the
Gauteng Division of the High Court, Pretoria
(Baqwa J and Strijdom
AJ). Consequently, they applied to this court for special leave to
appeal to it in terms of
s 16(1)
(b)
of the
Superior
Courts Act 10 of 2013
. The judges who considered the petition
referred the application to the court for consideration and argument
in terms of the provisions
of
s 17(2)
(d)
of the
Superior
Courts Act.
[2
]
The background of the matter is as follows. All the applicants were
employed by the Makhado Municipality and were members of the
South
African Municipal Worker’s Union (SAMWU). On 15 August 2011
SAMWU embarked on a national protected strike. It appears
from the
evidence that an agreement as envisaged by
s 69(4)
of the
Labour
Relations Act 66 of 1995
, was reached between the Makhado
Municipality and the local SAMWU branch. The fifteenth applicant, Mr
Moloko Elvis Tlou, was the
chairperson of the branch. In terms of
this agreement rules applicable to any picket in relation to the
strike were put in place.
These rules provided that the striking
workers would gather at the municipal workshop, some distance from
the civic centre, where
the municipal offices were located. The
municipal management would, on a daily basis, furnish the workers and
the South African
Police Service (SAPS) with a route to be followed
by the workers when marching to the civic centre for purposes of
picketing.
[3]
On 23 August 2011 the municipal management delayed in announcing an
authorised route to the workers who had gathered at the
workshop. As
a result, the workers ─ who were approximately 400 in number ─
decided to walk to the civic centre. On
the way to the centre,
however, the workers were blocked by a public order police unit of
SAPS under the command of Captain Frederik
Jacobus Kroucamp. The
police unit formed a line in accordance with its standard crowd
management techniques and forced the workers
back to the workshop.
The workers entered the premises of the workshop and closed the gate.
The police lined up outside the premises.
At this point, an incident
ensued which led to the arrest of the eleventh applicant, Mr Resimati
Samuel Hlongwane, by Captain Kroucamp.
I will allude to the
particulars of this incident shortly. As a result of the incident,
stones were thrown at the police by some
of the workers.
Nevertheless, calm was restored. The police commanders and the
leaders of the workers reached an agreement in terms
of which the
march was to be called off for the day and the workers were to
disperse to their respective homes.
[4]
The facts outlined above were common cause. The principal dispute at
the trial concerned the events that occurred after the
workers had
left the workshop. Captain Kroucamp testified in this regard, as did
two members of his unit, namely Warrant Officer
Rofhing John
Mashandule and Constable Divhamabele Mabirimisa. Warrant Officer
Mashandule testified that at about 13h00, whilst
on routine patrol,
he noticed that a group of approximately 30 workers had proceeded to
the main gate of the civic centre, where
they were littering and
starting fires. According to this evidence, several fires were
started and chaos reigned. As a result,
Captain Kroucamp ordered the
arrest of the persons that participated in this conduct. When the
police approached, the group scattered
and the police followed in
pursuit. The police witnesses testified that fourteen of the
applicants were thereafter arrested on
account of their participation
in the unlawful events at the civic centre. As mentioned above, Mr
Hlongwane had already been arrested
at the workshop. Notably, the
second applicant, Ms Zondeka Roseleta Mathebula, was not arrested in
respect of these events.
[5]
Constable Mabirimisa said that he saw the first applicant, Ms
Ndivhuwo Cathrine Phasha, burning substances at the civic centre
and
therefore arrested her at the scene. He further testified that Ms
Phasha held a piece of burning paper and was in the process
of
setting a plastic bag filled with papers alight. Both Captain
Kroucamp and Warrant Officer Mashandule testified that Mr Tlou
was
present at the civic centre. The latter said that he saw Mr Tlou
singing, uttering vulgar words and participating in making
a fire. He
also said that he identified the other applicants at the scene,
excluding Ms Mathebula and Mr Hlongwane.
[6]
Only three of the applicants testified in respect of the events that
transpired after the workers had left the workshop. These
witnesses
were Mr Tlou, the thirteenth applicant, Mr Mmboneni Ramakavhi, and
the sixteenth applicant, Ms Maropeng Sathekge. These
witnesses
vehemently denied the evidence in respect of the unrest at the civic
centre. They said that nothing of the sort took
place. On their
evidence there was no justification for any of the admitted arrests.
[7]
Ms Sathekge was a shop steward of SAMWU at the Makhado Municipality.
Her testimony was that after the workers had left the workshop,
she
went to consult a doctor. She then received a telephone call from Mr
Tlou who requested her to go to the police station. She
went to the
police station and upon her arrival she was arrested. In evidence, Mr
Tlou said that he was the last worker to leave
the workshop. He
called the SAMWU provincial office in respect of legal representation
for Mr Hlongwane and then proceeded to the
police station to assist
him. Whilst standing outside the police station, he and others were
arrested on the ground that they were
the leaders of ‘those
people’.
[8]
Mr Ramakavhi testified that after he left the workshop, he went to
the bus rank. Whilst waiting for the bus, four police officers
came
running towards him, saying ‘here is one of them’. He
said that once they caught up with him, they brutally assaulted
and
then arrested him. His version was that he was kicked on several
parts of his body, including his ribs and legs, and that he
was hit
on the head with a baton which caused an open wound. According to his
testimony, he received treatment at the hospital
for this wound.
[9]
Ms Mathebula testified that she was assaulted by a police officer at
the place where the police blocked the procession of the
workers. The
police officer hit her on her back with a baton. As a result, she was
bruised and went to the hospital where she received
treatment.
Although Ms Mathebula’s evidence was corroborated by Ms
Sathekge, Mr Tlou and Mr Ramakavhi, on the evidence of
the
respondent, no such incident took place,
[10]
Mr Hlongwane’s testimony related to an event that took place
before the workers’ dispersal. In his testimony he
said that he
suffered from diabetes. Whilst at the workshop, he felt dizzy and
obtained permission from a Captain Jordaan to leave
the workshop to
buy something to eat. His version was that after he left the premises
of the workshop, he was accosted by another
police officer. On his
evidence this must have been Captain Kroucamp. He informed Captain
Kroucamp that he had requested permission
to leave the workshop from
Captain Jordaan. According to his evidence, Captain Kroucamp
nevertheless assaulted him by hitting him
with a baton several times.
He said that he was then attacked and assaulted by several other
policemen, arrested and placed in
a police van. Of the other
applicants who testified, only Mr Ramakavhi testified about an
assault on Mr Hlongwane, but he
did so in vague and materially
different terms.
[11]
Captain Kroucamp testified that Captain Jordaan came to him with Mr
Hlongwane. Captain Jordaan said that he knew Mr Hlongwane
and that
the latter requested permission to leave the area because of a heart
condition. Captain Kroucamp agreed to the request
and said that Mr
Hlongwane should move past the police cordon. Whilst passing, Mr
Hlongwane threatened Captain Kroucamp and grabbed
the latter by the
front of his shirt with his right hand. Captain Kroucamp then hit Mr
Hlongwane’s hand with his baton in
order for him to release the
grip on his shirt. He called for assistance and after a struggle to
release Mr Hlongwane’s grip
on him, the latter was arrested and
placed in the police vehicle. This evidence was materially
corroborated by Warrant Officer
Mashandule and Constable Mabirimisa.
[12]
The magistrate rejected the evidence of the applicants and accepted
that of the respondent. The court a quo found that there
was no basis
for interference with these findings. It is trite that a court of
appeal is bound by the factual findings of the trial
court, unless
they were affected by material misdirection or the court of appeal is
convinced that they were wrong.
[13]
It is trite that different considerations come into play when
considering an application for leave to appeal compared to
adjudicating
the appeal itself (
S v Boesak
2000 (3) SA 389
(SCA) para 11). What presently has to be determined, is whether the
applicants have shown special circumstances which merit a further
appeal to this court, as explained in
Westinghouse Brake &
Equipment (Pty) Ltd v Bilger Engineering (Pty) Ltd
1986 (2) SA
555
(A) at 564H-565E. Such special circumstances would generally be
present where the intended appeal raises a substantial point of
law;
where the matter is of great importance to the parties or of great
public importance; or where the prospects of success are
so strong
that the refusal of leave to appeal would probably result in a
manifest denial of justice.
[14]
On the evidence for the respondent, no worker was assaulted and
Mr Hlongwane was arrested for assault committed in the
presence of
the arresting officer, in terms of
s 40(1)
(a)
of the
Criminal Procedure Act 51 of 1977
. On this evidence, some 30 persons
acting in concert disturbed the public peace and tranquillity by
littering and starting several
fires at the main entrance to the
municipal offices. This took place at about 13h00 and in windy
conditions. It could hardly be
disputed that these circumstances
would give rise to at least a reasonable suspicion that the
participants had committed the offence
of public violence, and that
this would justify arrest without a warrant in terms of
s 40(1)
(b)
of the
Criminal Procedure Act. Thus
, the only question is whether
this evidence was wrongly accepted by the trial court. This question
does not raise a substantial
point of law or any matter of great
importance. And, for the reasons that follow, the applicants’
prospects of success on
this question are not good.
[15]
On the case for the applicants, the police witnesses must have
fabricated the evidence of the unrest at the civic centre and
the
applicants’ participation therein. This is highly improbable.
In this regard Ms Sathekge contradicted herself in respect
of whether
she actually got to the doctor or not and what reason had been given
to her by the police for her arrest. On his own
evidence, Mr
Ramakavhi was not wearing a SAMWU T-shirt at the time and his version
to the effect that he was randomly selected
as a participant in
unrest that did not take place, appears improbable. The same applies
to the versions of Ms Mathebula, Mr Hlongwane
and Mr Ramakavhi that
they were brutally assaulted for no reason whatsoever. Although,
according to them, at least Ms Mathebula
and Mr Ramakavhi received
treatment in hospital for injuries sustained during the alleged
assault, none of them produced any medical
evidence. In addition, Ms
Mathebula and Mr Hlongwane materially contradicted allegations that
had been made in their letters of
demand and particulars of claim as
to the extent of the alleged assault and the identities of the
alleged perpetrators. No acceptable
explanation was given for these
contradictions.
[16]
In the result, the applicants have not shown any special
circumstances which would merit a further appeal to this court. The
application for special leave to appeal must therefore fail. Costs
should follow the result.
[17]
The application for special leave to appeal is dismissed with costs.
__________________
C H G van der Merwe
Judge of Appeal
APPEARANCES:
For
Applicants:
S O Ravele
Instructed by:
S O Ravele Attorneys,
Makhado
Phatshoane Henney,
Bloemfontein
For
Respondent:
M S Sikhwari
Instructed by:
The State Attorney,
Thohoyandou
The State Attorney,
Bloemfontein