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[2021] ZAGPPHC 483
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Mahlangu v Minister of Police (33151/2016) [2021] ZAGPPHC 483 (23 July 2021)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION
PRETORIA)
CASE
NO: 33151/2016
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
DATE:
23 July 2021
In
the matter between:
LAWRENCE
VUSIMUSI MAHLANGU
PLAINTIFF
and
THE
MINISTER OF
POLICE
DEFENDANT
This
judgment is issued by the Judge·whose name is reflected herein
and is submitted electronically to the parties/their
legal
representatives
by email. The judgment is further uploaded to
the electronic file of this matter on Caselines by the Judge or her
secretary. The
date of this judgment is deemed to be 23 July 2021.
JUDGMENT
COLLIS
J
INTRODUCTION
[1]
In the present action the plaintiff issued summons against the
defendant
for damages resulting from his unlawful arrest, the
subsequent detention (which he claims was also unlawful) and an
alleged assault.
The arrest allegedly occurred during the morning of
16 April 2015, by members of the South African Police Service, acting
within
their scope and employment with the Minister.
ISSUES
FOR
DETERMINATION
[2]
At the commencement of the proceedings the parties informed the court
that three issues are to be determined by the Court, namely:
2.1
Whether or not, the arrest and subsequent detention of the
plaintiff was lawful;
2.2
whether members of the South African Police Service assaulted
the plaintiff during his arrest; and
2.3
in the event of the court making a finding on the first two
questions in favour of the plaintiff, what amount in damages, is to
be awarded to the plaintiff.
ONUS
[3]
It is trite that an
arrest or detention is prima fade wrongful and unlawful. It is for
the defendant to allege and prove that the
arrest and the subsequent
detention were lawful.
[1]
Therefore, a defendant who pleads
justification
for the arrest
(such
as the present defendant),
as
a result, does not only carry the
onus
to
prove the lawfulness of such arrest
[2]
but also carries the
duty
to
begin in as far as the arrest is concerned. In as far as the assault
is concerned, the
plaintiff
carries the onus and has the
duty
to begin.
PLEADINGS
[4]
The plaintiff before court is claiming damages in the amount of R400
000,00
which heads of damages is made up as follows:
4.1
Unlawful arrest
R100 000,00
4.2
Unlawful detention
R100
000,00
4.3
Unlawful assault,
injuria
and
Contumelia
R200 000,00
[5]
As per its Amended Plea,
the defendant pleaded that the arrest and detention of the plaintiff
were lawful, in that the plaintiff
was arrested by members of the
South African Police Service and a traffic official, who at the time
of effecting the arrest, were
acting within the scope of their
employment. Furthermore, that the plaintiff
was
arrested for
contravening
Section 68
of
the
South
African Police Service
Act, Act 68 of 1995 (imporsanting a police officer).
[3]
In its plea, the
defendant
denied having assaulted the plaintiff during such arrest.
[4]
EXPOSITION OF EVIDENCE
[6]
Briefly, the facts if this case can be summarized as follows: The
plaintiff's
witness Mr. Lawrence Mahlangu testified that he is 39
years old who is customarily married with three children. As at the
time
of the incident he was employed by the City of Tshwane as an
Asset Controller and Shop steward for the past 18 years. On the 16
th
of April 201 5, he was on his way to Mpumalanga, accompanied by one
Temba Nguni, a family friend to sell his motor vehicle
(a silver
BMW).
The purpose of the trip was to meet a gentleman called
Sibusiso. At the time the area they were to meet was experiencing
load shedding
and they were asked by Sibusiso to wait on him.
Sibusiso, seems to have been delayed and eventually at around 14h00
they decided
to return back to Gauteng. On his way home a blue Golf,
unfamiliar to him, flashed lights from behind. He did not immediately
pull
over and when he eventually did, the occupants of the unmarked
vehicle pointed a firearm at them, ordered them to alight from their
vehicle and forced them to lie on the ground.
[7]
On the day, he was
dressed in a formal trouser and a grey shirt, and he was immediately
questioned about the whereabouts of his
firearm. He informed the
officers that it was on his person. He then took out his license
although it had expired and presented
it to the officers. Thereafter
he was then taken inside a marked police van and was further
questioned by the police. Later they
were both taken back to the
area, where they had earlier been waiting for the person who was
going to purchase his vehicle and
also there they were further
interrogated. Mr Mahlangu testified that in total approximately nine
members of the South African
Police Services had questioned the two
of them. At this point in time, he was also kicked and assaulted by
unknown officers who
continued to assault him as he was lying on his
stomach with his face turned to the ground. He testified further that
as a result
of the assault, his pants were torn open in the front.
Eventually, he was arrested until he was released on 20 April 2015.
Upon
his release he then consulted his doctor who examined him and
recorded in his medical report that he had sustained several soft
tissue injuries that were very painful.
[5]
As to the conditions he was kept in whilst in detention, he testified
that the conditions in the cells were appalling, had an unbearable
smell and that he shared this cell with three other occupants.
Furthermore, he testified that the toilet inside this cell was not
clean and it was blocked. During his detention, he was very worried
about his family and his work. The day following his arrest,
ne was
first taken to
his
house,
which
was searched
by
the
police
and on the same day he was also taken to his place of employment to
verify his employment. At his place of employment, he
was humiliated
as he was paraded in front of his colleagues in handcuffs, and his
manager was also questioned by the arresting
officer. As a result of
his arrest, he was suspended for three months from work and a
disciplinary hearing was also held. Although
he was not found guilty
of any misconduct, the disciplinary hearing caused him great
embarrassment and traumatised his wife and
children, for which he
felt very sorry and it angered him that they were so badly affected.
During his arrest, the police had confiscated
his firearm, which to
date, he has not
yet
received back from the SAPS.
[8]
During cross-examination
the defendant's version was put to the plaintiff, affording him an
opportunity to respond thereto. When
confronted with the defendant's
version, the plaintiff could not deny that a report was given to the
police that the persons who
were travelling in the silver BMW motor
vehicle such as his, attempted to rob Mr Dumisani Masile la and that
these persons also
pretended to Mr. Masilela, to be police officers.
Mr Mahlangu however denied that it was him and his friend who
pretended
to
be
police officers and who in
turn
attempted
to
rob Mr. Dumisani
Masilela. Furthermore,
the
plaintiff
could
also
not
deny
the version of the
defendant, that Mr Masonabo (the arresting officer) had earlier
received a call from Mr Masilela, who identified
to the arresting
officer, that the occupants driving in a silver BMW, pretended to be
police officers from Intelligence to Mr.
Masilela and
wanted to repossess his
car. Furthermore, the plaintiff could offer no explanation as to why
he failed to report the assault perpetrated
on him immediately to the
police officers based at the station where he was brought for
detention. He further could offer no explanation
as to why he also
failed to pursue reporting the actions of these alleged recalcitrant
officers to the Independent Police Inspectorate
Department (IPID),
but instead elected to institute civil action against the police. The
plaintiff also denied that he was ever
asked by the police when his
Notice of Rights was read out to him, as to whether he was assaulted,
where his answer was recorded
that he was not assault ed.
[6]
This then was the totality of the evidence presented by the
plaintiff.
[9]
The defendant called two witnesses. The first witness was Mr.
Dumisani
Masilela, a Provincial Traffic Inspector. In brief he
testified that on the day in question the plaintiff was travelling
together
with another man. They followed his vehicle to the local
shopping complex while he was driving in a Mercedes Benz. He first
collected
his clothes from the dry cleaners and upon his return he
started driving off. He was followed by this BMW vehicle and
eventually
stopped by it. After they have stopped him, they claimed
that they were police officers from the Crime Intelligence and they
wanted
to repossess the plaintiff's car. He demanded that they show
him their appointment cards as police officers as they were dressed
in civilian clothes. The plaintiff then showed him his firearm in his
holster and then took it out of his holster and then he was
ordered
to get into their vehicle. He refused and proposed that he will
rather drive his vehicle to the police station with them
following
him. Along the way he then turned off at the T-junction and the
occupants of the BMW vehicle proceeded straight . It
was at this time
that he made a call to the local police to report to them what had
occurred and gave them a description of the
silver BMW vehicle and
the location as to where he was driving, still pursuing the BMW
vehicle at a distance. At the time when
he made the call, he was
speaking to Sergeant Masonabo when he made the report. Eventually he
caught up with them, after the police
had already affected an arrest
of the occupants of the BMW vehicle.
[10]
During cross-examination the witness conceded that at the time when
he called the police
to report the incident, the BMW vehicle had
driven off in a different direction and that he was no longer in
danger or at risk
of his vehicle being taken. He further conceded
that when he made the call to the police, that he merely gave a
description of
the motor vehicle as in make and colour of the motor
vehicle, but that he was unable to give the police the registration
number
of the vehicle.
[11]
The next witness for the defendant was Constable Masonabo. He
testified that on the day
in question he received a call from Mr
Dumisani Masilela, an informant, that reported to him that there is a
silver car that has
two occupants who have impersonated themselves to
be police officers. Further that these occupants of the vehicle
wanted to take/rob
him of his motor vehicle. As a result of this
report, he called for back-up and drove to Valbank Road. While they
were on the road
a BMW rushing at a speed came in, they stopped it,
pulled it over and there were two occupants. One of the occupants
identified
himself as Laurence Mahlangu and he had a firearm on his
person with an expired license. The other occupant identified himself
as Mr. Temba Mnguni. Both occupants were then arrested on charges for
pretending to be police officers, this after they were positively
identified by Mr. Masilela. Both men were thereafter taken to the
police station where they were first interviewed and thereafter
detained. The next morning Constable Masonabo together with other
members attended at the plaintiff's address in order to verify
the
place of arrest for the purpose of bail and they went to the city of
Tshwane to verify their employment address. Constable
Mosanabo denied
that the plaintiff or his passenger was ever assaulted during their
arrest .
[12]
During cross-examination, Constable Masonabo conceded that he
arrested the plaintiff for
impersonating to be a police officer,
having pointed a firearm at Mr Masilela and for wanting to have taken
his motor vehicle.
He further conceded that before he could effect
the arrest in terms of section 40 of the Criminal Procedure Act, he
ought to have
formed a reasonable suspicion of the arrestee having
committed an offence. He further corrected his earlier evidence in
chief,
that when he was called by Mr Masilela, that he was given the
registration number of the BMW vehicle by Mr Masilela. Lastly, he
confirmed that the plaintiff was only charged with the offence of
impersonating himself to be a police officer, and not for attempted
robbery or for having pointed Mr. Masilela with a firearm.
THE
LAW
[13]
As mentioned previously, the defendant carried the onus, to prove the
lawfulness of the
arrest, whereas the plaintiff carried the onus, to
prove that an assault was perpetrated on him.
[14]
In
Minister of Law and
Order v Hurley
1986 (3)
SA
568
(A)
at
589EF.
Rabie CJ stated that
"An arrest constitutes an interference with the liberty of the
individual concerned, and it therefore
seems fair and just that the
person who arrested or caused the arrest of another person should
bear the
onus
of proving that his action was justified in
law".
[15]
It was therefore for the defendant to prove that their actions were
justified. In order
to determine this, the defendant carried the
onus
to establish that Sergeant Masanabo had reasonable grounds for
arresting the plaintiff. In proving this, it must be established that
he had formed a suspicion on which he acted, to arrest the Plaintiff,
and that such suspicion was formed on reasonable grounds.
[16]
Furthermore, in exercising that discretion, the arrestor must
exercise his discretion before
affecting an arrest and then also
before exercising the discretion to detain. In
Minister of Safety
and Security
v Sekoto 2011
(1)
SARC 315 (SCA),
Harms AJ sets out steps to be taken in the
execution of that discretion namely; did he consider whether it was
necessary to arrest
without a warrant; did he consider explanations
offered by the "offender"; did the offender present a
danger to society;
was not able or keen to disprove the allegations.
And I submit
in casu
testing the version of the complainant
before detaining or charging the Plaintiff. All of which I am sad to
say did obviously not
happen.
ANALYSIS
OF
EVIDENCE
[17]
In the present instance the plaintiff made a favourable impression on
the court. He was
able to give a coherent and logical account of what
had transpired on the day of his arrest and how it came about that he
was arrested.
From his evidence presented, he was clearly
co-operative with the arresting officer, in that he accompanied them
to his house and
even his workplace to verify his address and place
of employment. In as far as the assault perpetrated on him, he
presented the
medical report obtained the day after his release on
bail, which report serves as objective corroboration of an assault on
him.
He came across as an honest witness, such as by conceding that
as he was lying on the ground, when assaulted, and as such he was
unable to confidently say, who has assaulted him on the ground whilst
he was lying on the ground. His honesty is further demonstrated,
in
that he was able to produce an expired licence for his firearm, when
he could just as well have said, that he does not own the
firearm.
This court could find no reason to reject his evidence.
[18]
The same good qualities however displayed by the plaintiff during his
testimony, was not
exhibited by the witnesses who testified on behalf
of the defendant. If one firstly considers the evidence of Mr
Masilela, a number
of shortcomings can be found in his testimony. By
way of example, in cross examination Mr. Masilela could not remember
the colour
of the BMW vehicle, in which the purported offenders were
to be driving, whereas, Sergeant Masanabo, had testified that he had
been informed by Mr. Masilela, that the occupants were travelling in
a silver grey or iced white BMW vehicle. Furthermore,
Mr
Masilela gave evidence that the plaintiff had showed him his firearm
at the time when he wanted to repossess his vehicle, whereas,
Sergeant Masanabo had testified that it was reported to him, by Mr
Masilela, that he was almost hijacked by the plaintiff and his
occupant. Furthermore, given the gravity of the offences allegedly
committed by the plaintiff, it seems rather improbable, that
the
police will in the end only charge the plaintiff with impersonating
himself to be a police officer, premised only on the word
of Mr
Masilela, when no other evidence of such conduct (i.e Police uniform,
or appointment cards) were retrieved from the vehicle
of the
plaintiff in support of this offence and that sole reliance for this
was placed on the report so made by Mr. Masilela.
[19]
Both witnesses also contradicted each other as to whether a
registration number of the
vehicle of the plaintiff was given to the
arresting officer, when the purported crime was reported by Mr
Masilela.
[20]
On the conspectus of evidence presented, the probabilities rather
dictate, that the arresting
officer failed to verify the necessary
facts, when clearly ample opportunity existed, before he effected the
arrest. Instead, it
rather points to the fact that as Mr Masilela was
known to the arresting officer and that his mere reporting made to
Sergeant Masanabo
was sufficient to effect the arrest on the
plaintiff.
[21]
Given these glaring shortcomings in the testimonies of the
defendants' witnesses, I find
it difficult to place reliance on their
evidence and in the circumstances, the arrest of the plaintiff could
not have occurred
with Sergeant Masanabo having formed a reasonable
suspicion. For this reason, the plaintiff therefore must succeed with
his claim.
QUANTUM
[22]
In the present instance Mr Mahlangu gave evidence as to the trauma,
humiliation and bodily
injuries sustained as a result of the unlawful
actions of the Defendants employees' actions. He further gave
evidence as to his
social standing, and his conditions of detention.
In this regard, no evidence in rebuttal was presented by the
defendant.
[23]
Counsel on either side, had referred this court to previous awards
having been made in
this regard to utilise a reference in determining
an appropriate award to be made in the present matter. These cases so
referred
to, it should be mentioned, merely serves as a guide to this
court and that each case should nevertheless be determined on its own
merits.
COSTS
[24]
In asfar ascosts is concerned, it is settled law, to award costs to
the successful party
in these proceedings. In this regard counsel for
the plaintiff had submitted that this court should award the
plaintiff in the
event of being successful, costs on an Attorney and
Client High Court scale, inclusive of costs in the cause and costs of
counsel.
In addition, thereto, that the plaintiff should also be
awarded all costs previously reserved in these proceedings.
[25]
In opposition however, the defendant had argued that the plaintiff
even when successful
should only be awarded costs on a Magistrates
Court scale given the quantum of the claim as at date of institution
of these proceedings
having fallen within the monetary jurisdiction
of the Magistrates Court scale.
[26]
In the present matter, I cannot find a basis, to deprive the
plaintiff of awarding costs
on a High Court scale, albeit that the
practice should certainly be discouraged going forward, as it unduly
burdens this Court's
already heavy court roll.
ORDER
[27]
Given the totality of the evidence presented before this court and
having regard to the
relevant case law on point, I am of the opinion
that the following award would be appropriate under the
circumstances:
27.1
The defendant will be liable to pay the plaintiff the amount
of R 350 000 within (30) thirty calendar days, in respect of the
plaintiff's
claim.
27.2
Furthermore, the defendant shall be liable for interest on the
said amount at the prevailing interest rate, calculated a
tempore
morae
from 28 July 2015, to date of final payment.
27.3
The defendant shall pay the plaintiff's costs of suit on a
party and party High Court scale, including costs of counsel and
costs
previously reserved in these proceedings.
C.J.
COLLIS
JUDGE
OF THE HIGH COURT
Appearances
For
the Plaintiff :
Adv. M. De Meyer
Attorney
for the Plaintiff:
SD Nel Attorneys
For
the Defendant:
Adv. L. Kalashe
Attorney
for the Defendant:
Office of the State Attorneys
Pretoria
Date
of Hearing:
14-15 October 2019, 9 February 2021, 24 February 2021
Date
of Judgment:
23 July 2021
Judgment
transmitted electronically.
[1]
Lembo v African National Congress
2002 (5) SA 668
(SCA) at para 32
[2]
Minister of Lawand Order v Hurley and Another 1986 (3) SA 568 (A)
[3]
Exhibit A para 4.1 p 19
[4]
Exhibit A para 5 p 20
[5]
Exhibit A p 8-12
[6]
• Exhibit C p
21