Madolo v Minister of Police (879/2018) [2021] ZAECMHC 37 (26 October 2021)

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[2021] ZAECMHC 37
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Madolo v Minister of Police (879/2018) [2021] ZAECMHC 37 (26 October 2021)

IN THE HIGH COURT OF
SOUTH AFRICA
[Not
Reportable]
[EASTERN
CAPE LOCAL DIVISION, MTHATHA]
CASE
NO: 879/2018
In the matter
between:
MNYAMEZELI
WILFRED MADOLO
Plaintiff
and
MINISTER
OF POLICE

Defendant
JUDGMENT
NHLANGULELA DJP
[1]
The plaintiff claims for payment of R300 000,00, against the
defendant, arising out of
an alleged wrongful arrest and detention;
and assault committed by the members of the SAPS which the defendant
is vicariously liable
to pay in the event that the claims are proved.
[2]
At the trial the plaintiff testified, and also called one Mr
Silindile Gilidikazi to corroborate
his evidence.  The defendant
called Mr Deon Muller and Mr Zandisile Ngqandu, to testify on his
behalf.  Both police officers
are Sergeants by rank and were at
all times relevant to the incident giving rise to the claims in the
employ of the department of
SAPS in which the defendant serves as a
political head.
[3]
On the joint application of both parties, a ruling was made in terms
of the provisions of
Rule 33 (4) separating the determination of the
merits and the amount of damages to be paid.  The defendant
conceded that Mr
Muller was the police officer that effected arrest
and placed the plaintiff into the detention cell.  However, he
denied that
the actions of Mr Muller were wrongful and/or unlawful as
justificatory reasons informed the actions of arrest, and detention,
from
which the defendant should be exonerated from liability.
In essence the defence of the defendant implicates the provisions
of
s 40
(1)
(a)
of the
Criminal Procedure Act 51 of 1977
in terms
of which arresting a citizen without a warrant authorizing arrest may
be lawful, if a person commits an offence in the presence
of a peace
officer.
[4]
I recount the evidence led at the trial in brief.  On 01
December 2017 and in the district
of Libode the plaintiff, the owner
of a security company in which Mr Gilidikazi was the employee,
received a report from his security
guards that one Mr Varhoyi had
trespassed into a building construction site secured by the plaintiff
without permission and damaged
a TLB construction machine placed
thereon.  The plaintiff rushed to the site and found Mr Varhoyi
having already been placed
in the custody of the security guards.
He took a decision that Mr Varhoyi, the suspect, would be taken to
Libode Police Station
for the purposes of being charged for
trespassing and malicious damage to property.  He conveyed the
suspect on his vehicle,
in which Mr Gilidikazi, two other male
security guards and the local Chief Zimise were present.  The
decision taken that the
suspect must be referred to the police had
been supported by the Chief, who had been given a report concerning
the activities of
the suspect.  On the way to the Police Station
the vehicle was stopped at Dalagubha Junction to enable the suspect
to pass water.
Immediately the suspect got out of the vehicle,
he pulled out a knife and stabbed the plaintiff with it once on the
arm, whereafter
Mr Gilidikazi restrained the suspect by punching him
on the face with a fist that felled him to the ground.  To
confine the
suspect into his custody Mr Gilidikazi followed the
suspect with the result that a struggle ensued.  The punching on
the face
and physical restraining of the body of the suspect, met by
a hard resistance, resulted in the suspect being stopped from
fleeing.
The plaintiff stopped his other employees from
charging at the suspect, and as he was stopping Mr Gilidikazi from
committing
further assault upon the suspect, Mr Muller and Mr Ngqandu
arrived at the scene and, without saying a word, assaulted him.
Thereafter, the police placed him under arrest and drove him in a
police vehicle to the Libode Police Station where a charge of assault
was laid against him and detained in a holding cell until 5-6 pm.
Mr Gilidikazi confirmed these facts when he testified.
[5]
In support of the evidence that the police assault occurred that
sustained him serious bodily
injuries, a medico-legal report (Exhibit
“A”) was placed before the Court.
[6]
At Libode Police Station premises, the plaintiff was taken out of the
police vehicle, ordered
to position his hands up above the head,
pointed with a firearm and marched into the charge office.  A
warning statement in
terms of s 35 of the Constitution was made,
which the plaintiff was caused to sign.
[7]
The plaintiff was never caused to appear before a court of law in
connection with the charge
of assault with intent to cause grievous
bodily harm that was laid against him.  Not only did he deny
assaulting the suspect,
he also informed the police that he had been
stabbed by the suspect.  However, a police statement was not
taken from him; and
Mr Varhoyi and Mr Gilidikazi were not charged at
all.  Neither were Mr Gilidikazi and two other security guards
of the plaintiff
caused to make police statements.
[8]
In the witness box, the plaintiff told the court that the conduct of
the police officials,
Mr Muller and Mr Ngqandu, constituted a
terrible infraction upon his constitutionally protected rights to
dignity and bodily integrity.
He dropped down into tears,
apparently still being haunted by the events of 01 December 2017.
[9]
Mr Muller and Mr Ngqandu gave versions that contradicted the evidence
of the plaintiff and
his witness in material respects.  Both
police officers testified that on 01 December 2017 they, and six
other policemen, were
driving on R61 road using two police vehicles
and heading to Ntlaza locality where they had been called to prevent
bloodshed following
upon violent conflict involving opposing factions
between members of taxi associations.  As they were driving past
Dalagubha
Junction they observed that a group of men, carrying
sticks, were involved in violent action that required them as the
police to
intervene.  They deviated from the main road in order
to access what they regarded as a crime scene.  Mr Muller told
the
court that, on his own observation, three men were each carrying
a stick and another was carrying a belt which they were using to
assault Mr Varhoyi as he was lying helplessly on the ground.  To
stop what to him was a severe assaulting action, he shouted
for the
men to desist from their conduct.  They indeed responded to the
call, except for the plaintiff who continued to singularly
beat Mr
Varhoyi severely by means of a stick.  According to him the
beating of Mr Varhoyi was so severe that he sustained serious
bodily
harm.  Mr Ngqandu had to fire two warning gun-shots but which
the plaintiff ignored and continued to beat up Mr Varhoyi.
Thereafter, Mr Ngqandu grabbed the plaintiff from behind and Mr
Muller followed by disarming the plaintiff.  At that juncture,
Mr Muller had already dispossessed the other three men of their
sticks and a belt.   According to Mr Muller, whilst he
was
still at the scene, he destroyed the sticks that he had recovered
from the plaintiff and his employees.  The plaintiff and
the
other three men were ordered to follow the police vehicles to the
Police Station where the plaintiff was locked up.  Thereafter,
Mr Muller and Mr Ngqandu proceeded to Ntlaza.  And that was the
last they heard about Mr Varhoyi’s complaint of assault by
the
plaintiff.
[10]
When Mr Ngqandu testified it appeared that he did not observe that
the actions of the employees of the
plaintiff’s properly due to the
reason, according to him, that his attention was focused on the
continued assault perpetrated by
the plaintiff against Mr Varhoyi and
that his efforts were directed at saving the life of Mr Varhoyi.
He told the Court that
in his observation, there were four to five
men who were assaulting Mr Varhoyi, but whose identies escaped him.
He could not even
tell if Mr Gilidikazi played a role in the assault
upon Mr Varhoyi.  But he was adamant that the plaintiff was
never assaulted
by any of the eight policemen who were present at the
scene to rescue the victim of assault.  Mr Ngqandu stated that
at some
stage he and Mr Muller spoke to the Chief who informed them
that they got to be at the scene of crime due to the fact that Mr
Varhoyi
was resisting arrest, which had angered the plaintiff.
The Chief also told them that Mr Varhoyi was being conveyed to the
Police
Station to be formally charged for committing offences at the
construction site with a view of facing criminal prosecution.
Significantly,
the police gathered from the Chief that the plaintiff
was a stubborn person would not let go of Mr Varhoyi despite the
injury caused
by Mr Gilidikazi, that he had sustained on the eye.
That information had strengthened the resolve of policemen to
ensuring
that the plaintiff was arrested for the assault visited upon
Mr Varhoyi.
[11]
It is fair to conclude that it was upon the versions of facts given
by Mr Muller and Mr Ngqandu during
consultations that the defendant
pleaded to the plaintiff’s causes of action as follows:
“
AD
PARAGRAPH 4 AND 5 THEREOF
The
defendant admit
(sic)
that the plaintiff was lawfully arrested and never assaulted by the
members of South African Police Service.  He was caught
assaulting Khumbulani Varhoyi in the presence of the police and was
detained and later brought before court.”
[12]
The justification to arrest without a warrant will be successful if
the following jurisdictional facts
are met:
(i)
the arrestor must be a peace officer;
(ii)
the offence must have been committed or there must have been an
attempt to commit an offence,
and;
(iii)
the offence or attempted offence must be committed in his or her
presence.
See:
Van Wyk & another v Minister of
Police & another
(unreported, GP
case no A617/15, 17 November 2016) at [18].
[13]
Van Zyl ADJP (as he was then) in
Scheepers v Minister of Safety &
Security
2015 (1) SACR 284
(ECG) stated, correctly so, that the
question to be answered by the court is whether the arresting officer
had knowledge at the time
of the arrest of the arrestee of such facts
which would in the absence of any further facts or evidence,
constitute proof of the
commission of the offence in question.
That is, the honest and reasonable belief that a crime was committed
is irrelevant –
see:
Tsose v Minister of Justice & Others
1951 (3) SA 10
(A).
[14]
I proceed to evaluate the facts.  The evidence raises the
question whether the plaintiff did as
a fact assault Mr Varhoyi with
a stick.
[15]
In agree with
Mr Msindo,
for the plaintiff, that the tool used
in deciding which of the versions in conflict must be preferred are
the principles set out
in the case of
Stellenbosch Farmers Winery
Group (Ltd) and Another v Martell et Cié
2003 (1) SA 11
(SCA) at
page 14.  Based on this case, the Court is enjoined to make
findings on (i) the credibility of the witnesses; (ii)
their
reliability, and (iii) the probabilities.
[16]
The evidence of the plaintiff and his witness is credible in that Mr
Gilidikazi’s evidence that he, not the
plaintiff, assaulted Mr
Varhoyi was not challenged.  The contention that such evidence
is bad simply because it was adduced
by the employee of the
plaintiff, is not a sufficient basis to reject it.  The
plaintiff did not only tell the Court that the
police assaulted him;
but he placed before court a medical report proving that he sustained
serious bodily injuries at the time when
he had contact with Mr
Varhoyi and the members of the police force.  Despite the denial
by the police, the inference that the
police caused him the injuries
is a reasonable one to be made.  The evidence that four – five
men carried sticks and a belt
which they used to assault Mr Varhoyi
is not plausible.  Mr Varhoyi did not testify and there is no
documentary proof that he
was assaulted by sticks and a belt.
The weapons used (the sticks), though allegedly taken away from the
assailants, were not
kept as the police exhibits.  The fact of
existence of such weapons is cast in serious doubt. The apparent lack
of enthusiasm
on the part of the police to lay a charge against the
plaintiff for refusing to follow police orders negate the evidence,
denied
by the plaintiff, that warning shots were fired. The story
that the sticks were destroyed, coupled with unexplained whereabouts
of
the belt is improbable. The fact that the police made no effort to
obtain a statement from the plaintiff or even sought oral explanation
of the events from him negate the assertion that the plaintiff
assaulted Mr Varhoyi.  The evidence of Mr Muller that the
intention
of the police was never to seek prosecution of the
plaintiff until they were pressed by Mr Varhoyi at the Police Station
to open
a docket against the plaintiff is, in my opinion, sufficient
re-inforcement of the plaintiff’s version that he did not assault
Mr Varhoyi.  On the contrary, proof by medical evidence that the
plaintiff was the victim of assault is a plausible version.
In
the circumstances, the version of the defendant is rejected as
unreliable.
[17]
The constitutional protection of the plaintiff’s rights to dignity,
bodily integrity and freedom of
movement is sacrosanct. These rights
cannot be eroded by police arrest that does not comply with the
provisions of s 40 (1)
(a).
[18]
In this case proof that the plaintiff did as a fact assault Mr
Varhoyi and in the presence of Mr Muller
are jurisdictional facts
which are not established by the evidence.  Consequently, the
arrest of the plaintiff was unlawful.
[19]
Mrs Klaasmani
submitted that the Court should take into
account the fact that since policing work can, at times, be too
onerous, the objectives
of policing duties in terms of s 205 (3) of
the Constitution ought to provide a shield against liability that the
defendant is faced
with in this matter.  The submission is
wrong, lest the courts were to be allowed to sanction wanton police
brutality that took
centre stage in policing that was witnessed prior
to the ushering in of a democratic legal dispensation under the new
Constitution.
[20]
On the aforegoing, the plaintiff has proved his case against the
defendant.  The costs must follow
the result.
[21]
In the result the following order shall issue:
1.
The defendant be and is hereby held liable to compensate the
plaintiff with such
amount of damages as may be proved in due cause.
2.
The defendant to pay costs of the trial on the issue of liability.
3.
The hearing on the issue of quantum is postponed sine die.
Z. M. NHLANGULELA
DEPUTY JUDGE
PRESIDENT OF THE HIGH COURT
MTHATHA
Attorney for the
plaintiff    :   Mr V.V. Msindo
:   c/o
V.V. Msindo & Ass
MTHATHA.
Counsel for the
defendant  :  Adv. N. Klaasmani
Instructed
by                       : The
State Attorneys
c/o
Siyabulela Parkie Attorneys
MTHATHA.
Heard on: 12, 13, 14
and 15 October 2021
Delivered
on:  26 October 2021