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[2019] ZAECMHC 31
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Damane v Minister of Police (1780/12) [2019] ZAECMHC 31 (25 June 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
[EASTERN
CAPE LOCAL DIVISION, MTHATHA]
[Not
Reportable]
CASE
NO: 1780/12
Delivered
on: 25/06/19
In
the matter between:
BOTHA
DAMANE
Plaintiff
and
MINISTER
OF POLICE
Defendant
JUDGMENT
NHLANGULELA
DJP
[1]
The plaintiff claims payment of damages against the defendant under
four heads, namely:
(i)
Wrongful arrest and detention
:
R400 000,00
(ii)
Impairment of dignity and reputation and humiliation :
R900 000,00
(iii)
Legal costs incurred as a result of litigation in the
criminal
court
: R 10 000,00
(iv)
Assault
: R100 000,00
The
action is defended by the minister.
[2]
The claim premised on an alleged wrongful arrest and detention is the
main claim.
Claims in (ii) and (iii) are a sequel thereto.
The claim arising from assault is an independent one.
[3]
As instructed by the Appellate Division (it was then) in
Minister
of Law and Order v Hurley and Another
1986
(3) SA 568
(A) at 587-589 for the minister to succeed to a ward off
the claim for wrongful arrest and detention it must prove that its
employee(s)
who arrested and detained a suspect without a warrant was
justified to do so as is envisaged in s 40 (1)
(b)
of the Criminal Procedure Act 51 of 1977 (the
Act); in that the employee(s) was a peace officer at the time of
effecting arrest;
who entertained a suspicion; that the plaintiff
committed a Schedule 1 offence; and that the suspicion rested on
reasonable grounds.
Proving the existence of these
jurisdictional factors calls for the minister to present evidence of
the arresting officer.
[4]
Miss Fusi Gloria Ramotlole, a Constable in the SAPS attached to
Avondale Police Station,
Mt Fletcher, testified that on 15 January
2012 she and Constable Siyabusa Lwandle, her colleague,
received a telephone report
whilst they were at the police station
that the plaintiff was harassing one Miss Mampomatseng Petros at
Mangopeng Location, Mt
Fletcher. They decided to drive to the
plaintiff’s homestead with and intention to remonstrate the
plaintiff. Having
arrived at the homestead of the
plaintiff they found him being in company of two unknown male persons
sitting in the yard.
Mr Lwandle asked for the plaintiff who,
having identified himself, was informed that Mr Lwandle and Miss
Ramotlole were the members
of the SAPS who were investigating the
complaint. Instead of engaging the police on the complaint the
plaintiff suddenly
reacted by grabbing Mr Lwandle by a collar of his
uniform. In the process of a struggle that had ensued the
plaintiff assaulted
Mr Lwandle with a hard object on his arm causing
him serious bodily injuries. Miss Ramotlole intervened by
pleading with
the plaintiff not to assault a policeman who was
engaged in the exercise of police duties. When Mr Lwandle was
freed from
the grip he and the witness retreated to the police
vehicle and called for re-inforcement so that the plaintiff was
arrested to
answer to a charge of assaulting Mr Lwandle. Mr
Phillip Dongwe, Mr Thamsanqa Sobhuza and three others, the policemen,
soon
arrived at the time when the plaintiff had retreated into a
roundavel. As the police approached the plaintiff to effect
arrest
he picked up a gas cylinder, pointed it in the direction of
the members of the police and released the gas as a declaration of
his intention to resist arrest by burning the police. In fear
of imminent harm the police were forced to stop their pursuit
and
retreated to their vehicles. Many local people, including the uncle
of the plaintiff had been drawn into the homestead by the
pandemonium
that the plaintiff’s resistance had caused. Ultimately,
the intervention by the members of the community
and the plaintiff’s
uncle yielded to the plaintiff surrendering himself to Miss
Ramotlole. Pursuant thereto the plaintiff
was arrested and
driven to the police station where he was charged, detained and
caused to appear before court. The
magistrate granted him
bail. Thereafter, he attended court on numerous occasions on
the orders of the magistrate. On
04 April 2012 the plaintiff
again appeared before the magistrate for trial, but to his benefit
the magistrate made an order terminating
the criminal proceedings.
[5]
The police statement of Ms Ramotlole with which she was confronted
during cross-examination
is the confirmation of the evidence
aforementioned in material respects.
[6]
The contradictory version of the plaintiff put to Ms Ramotlole was
that the plaintiff
never resisted arrest by assaulting Mr Lwandle, or
in any other manner. Instead, Mr Lwandle assaulted the
plaintiff by means
of spraying tear-gas from a canister into his face
to force him to obey the instruction that the plaintiff must get into
the police
vehicle. Ms Ramotlole flatly denied the plaintiff’s
version.
[7]
Mr Phillips Dongwe was called to testify on behalf of the defendant
as well. He confirmed
that on 15 January 2012 he was urged to
visit the plaintiff’s home to provide assistance to Mr Lwandle
and Ms Ramotlole who
were being overwhelmed by plaintiff’s
resistance to arrest using violent means as explained in the evidence
of Ms Ramotlole.
Three other policemen who accompanied the
witness were Mr Sobhuza, Mr Tsonyana and Mr Manwana who were also the
members of the
SAPS. He stated that on arrival at the
plaintiff’s homestead they, together with Ms Ramotlole
proceeded towards the
roundavel with the purpose of effecting arrest
on him but were stopped by the plaintiff who had come out of the
roundavel carrying
the gas cylinder and matches preparing to light
gas that had been released to burn the members of the police.
Faced with
the life threatening attack the police retreated back to
their motor vehicles to solicit assistance from the members of the
community.
Such intervention was to prove fruitful because the
local people succeeded in bringing the plaintiff to his senses that
the people
he was obstructing were the members of the SAPS whose duty
it was to arrest him to face the law. As a result the plaintiff
surrendered himself to the police. At the police station a
docket on assault charge was opened against the plaintiff.
[8]
Mr Dongwe testified further that on 18 January 2012 Mr Lwandle was
taken to Joshua
Ranga for medical examination of injuries which he
had sustained as a result of assault by the plaintiff. The
witness referred
the supporting J88 medical report to the attention
of the court.
[9]
When cross-examined Mr Dongwe confirmed that the plaintiff using gas
drove him, Ms
Ramatlole and other members of the SAPS present at the
plaintiff’s homestead back to their vehicles. He told the
court
that he was not present at the scene when the plaintiff
assaulted Mr Lwandle.
[10]
The defendant’s case was closed at the conclusion of Mr
Dongwe’s evidence.
[11]
The plaintiff testified that when Mr Lwandle and Ms Ramatlole arrived
at his home Mr Lwandle
merely issued instructions that he must go
with them to the police station. When asked for a reason Mr
Lwandle drew out a
pepper spray, pointed it at him and sprayed it on
his eyes. Further, and without any reaction, Mr Lwandle pulled
out a service
firearm and pointed it at him. Thereafter, Mr
Lwandle made utterances that he would call for re-inforcement if he
did not
follow instructions that he must go with him to Avondale
Police Station. Soon thereafter, five other policemen arrived
when
he was standing at the door line of his roundavel carrying a gas
cylinder which he intended to use to defend himself against certain
people he saw in his yard carrying sticks and sjamboks posing a
threat to attack him. He told the court that as the police
were
approaching it occurred to him that since he had a disagreement with
Mr Lwandle he must prevent them from gaining entry into
the roundavel
by releasing gas from the cylinder and blow it in their direction.
According to the plaintiff the police were
indeed prevented from
reaching him due to the intervention of Mr Ndefa Musi, his uncle, who
asked the police not to assault the
plaintiff. That
intervention coupled with the advice from Mr Musi that he must
surrender himself to the police led him to
leave the roundavel and go
to the police who ultimately took him away to the police station.
There, he was locked up into
a holding cell that had: six inmates; no
bed on which to sleep; insufficient blankets; and food of very poor
quality to feed him
with. At night time three men arrived in
the cell, hand-cuffed him and took him out to a room where he was
caused to kneel
on the floor and subjected to assault with sticks and
sjamboks. As a result he sustained injuries on the wrists and
shoulders.
After that ordeal, he was returned to the holding
cell. On the next day, dated 17 January 2012, he was taken to
the magistrates’
court where he was admitted to bail. The
uncle of the plaintiff also played a pivotal role in ensuring that
the plaintiff
surrendered himself to the police.
[12]
The evidence that has been led by the witnesses for the defendant and
the plaintiff discloses
contradicting versions. According to
the witnesses for the defendant the police went to the homestead of
the plaintiff to
remonstrate him. On the other hand, the
plaintiff says that the original intention of the police was to
arrest him,
albeit
without any legal basis; hence he resisted to be arrested. For
those reasons there is a need to assess the probabilities
of each of
the opposing versions in order to ascertain the truth and, finally to
decide whether the conduct of the police officers
pass muster in
terms of s 40 (1)
(b)
of the CPA.
[13]
In assessing the probabilities of the opposing versions the court
will be guided by the principles
that were articulated in
Stellenbosch Farmers’ Winery Group Ltd
and Another v Martell Et Cie and Others
2003
(1) SA 11
(SCA) as follows at page 14, para [5]:
“
To
come to a conclusion on the disputed issues a court must make
findings on
(a)
the
credibility of the various factual witnesses;
(b)
their reliability; and
(c)
the probabilities. As to
(a)
,
the court’s finding on the credibility of a particular witness
will depend on its impression about the veracity of the witness.
That
in turn will depend on a variety of subsidiary factors, not
necessarily in order of importance, such as (i) the witness’
candour and demeanour in the witness-box, (ii) his bias, latent and
blatant, (iii) internal contradictions in his evidence, (iv)
external
contradictions with what was pleaded or put on his behalf, or with
established fact or with his own extracurial statements
or actions,
(v) the probability or improbability of particular aspects of his
version, (vi) the calibre and cogency of his performance
compared to
that of other witnesses testifying about the same incident or
events. As to
(b),
a
witness’ reliability will depend, apart from the factors
mentioned under
(a)
(ii),
(iv) and (v) above, on (i) the opportunities he had to experience or
observe the event in question and (ii) the quality, integrity
and
independence of his recall thereof. As to
(c)
,
this necessitates an analysis and evaluation of the probability or
improbability of each party’s version on each of the
disputed
issues. In the light of its assessment of
(a),
(b) and (c)
the court will then, as a final
step, determine whether the party burdened with the
onus
of proof has succeeded in discharging it. The hard case, which
will doubtless be the rare one, occurs when a court’s
credibility findings compel it in one direction and its evaluation of
the general probabilities in another. The more convincing
the
former, the less convincing will be the latter. But when all
factors are equipoised probabilities prevail.”
[14]
I have no difficulty in accepting the evidence of Ms Ramotlole and Mr
Dongwe because their evidence
was straightforward and free of
contradictions. And on the critical issue of whether Mr Lwandle
was assaulted by the plaintiff
the two witnesses corroborated each
other and even said that Mr Lwandle had to be examined by a doctor
who confirmed the injuries.
The plaintiff did not challenge the
fact that Mr Lwandle sustained injuries whilst he was at his
homestead on 15 January 2012.
Ms Ramotlole was confronted with
the version that the police assaulted the plaintiff with tear-gas,
yet the plaintiff stated that
a pepper spray was used. It was
never put to the police officers that they assaulted the plaintiff
with sticks and sjamboks.
It was only when the plaintiff
testified that such a manner of assault was mentioned. Even
when that happened the assault
incident was embellished with a
further untested version that the police had threatened to shoot him
with a firearm. Given
the existence of such inherent defects in
the evidence of the plaintiff coupled with the absence of
corroborating evidence, the
version of the plaintiff cannot be relied
upon. In comparative terms whereas the evidence of the
defendant’s witnesses
is probable, that of the plaintiff is
not. That much threshold of the evidence is the test that the
defendant had to meet
in order to bolster its defence to the
plaintiff’s claim.
[15]
Consequently the claims for unlawful arrest and detention fall to be
dismissed. The same
outcome must apply to the claims based on
impairment of dignity and reputation.
[16]
The claim for legal costs is inextricably linked to that for wrongful
arrest and detention in
that such costs would have been incurred in
the cause of litigation in the criminal court. In the event
this claim cannot
succeed.
[17]
In the amended particulars of plaintiff’s claim there is
pleaded a claim for wrongful assault,
to which the defendant pleaded
that its employees did not assault the plaintiff. But the
evidence of the plaintiff,
which is not challenged by the defendant,
is that on 15 January 2012 and at mid-night three male persons opened
his cell, woke
him up and led him to a certain office that is
situated within the precincts of Avondale Police Station. He
was questioned
as to why he had undermined the authority of the
police when he resisted arrest by Mr Lwandle. For that conduct
the plaintiff
was placed in a lavatory, knelt on the floor with arms
hand-cuffed from the back and assaulted. One of the three men
also
jumped ten times on the hand-cuffs causing severe injuries and
pain to the plaintiff. The medical report of Dr Jwili of Taylor
Bequest Hospital, prove that the plaintiff sustained bodily
injuries. In my view the plaintiff succeeded to discharge the
onus
of proof that the
defendant is delictually liable to pay damages for wrongful assault.
[18]
It came as a surprise to find in the heads of argument a submission
that this Court may still
find that the police could have exercised
discretion to bring the plaintiff before the criminal court in a way
different from arresting
and detaining him. Reliance for this
submission was made based on the case of the
Minister
of Safety and Security v Sekhoto and Another
2011
(1) SACR 315
(SCA). However, in this case a determination of
the kind as urged to be made is not possible due to the fact that the
plaintiff
neither confronted the police witnesses with a version that
they could have opted for a different method of dealing with the
plaintiff
than they did, nor did the plaintiff adduce evidence in
that regard. The pleadings too are silent.
[19]
For the reason already stated a need to assess the
quantum
of damages to be paid to the plaintiff will not arise in respect of
the claims for unlawful arrest and detention; impairment of
dignity
and reputation as well as for humiliation. The same holds true
for the claim for litigation costs. The amount of
compensation for
wrongful assault remains to be quantified.
[20]
The J88 filed of court in respect of the plaintiff reveals that the
plaintiff sustained serious
injuries as follows: (a) multiple
bodily injuries and complaining of pain at the back; (b) multiple
bruises on the body;
(c) soft tissue injury. He was treated
with brufen and paracetamol.
[21]
The injuries as aforementioned are not permanent in nature. Mr
Mnge, counsel for the plaintiff,
submitted that the case of
Daniels
And Others v Minister of Police
(GP)
unreported case no: 50047/2012; 50055/2012; 50049/2012; 50050/2012 of
26 February 2015 benchmarks the appropriate
quantum
of damages in the sum of R90 000,00 that may be awarded in this
case. In
Daniels,
although
it was proved that the plaintiff had sustained injuries which were
not of permanent nature the court held that the injuries
were
sufficiently serious to warrant redress by compensation in the sum of
R90 000,00. The assessment was done with
due regard to
comparable awards made in previous cases, inflation and the liberal
approach as called for in the
Bill of Rights
.
See:
Road Accident Fund v Marunga
2003
(5) SA 164
(SCA) at 170, para [27] where the new approach is stated
in the following terms:
“
In
the
Wright
case
(Corbett and Honey
vol
4 E3-36), Broome DJP stated:
‘
I
consider that when having regard to previous awards one must
recognise that there is a tendency for awards now to be higher than
they were in the past. I believe this to be a natural
reflection of the changes in society, the recognition of greater
individual
freedom and opportunity, rising standards of living and
the recognition that our awards in the past have been significantly
lower
than those in most other countries’.”
[22]
This Court is enjoined to apply the aforementioned
dicta
of the
Marunga
case.
[23]
The defendant launched a hugely successful defence to the plaintiff’s
claims. The
margin of success achieved by the plaintiff on the
claim based on wrongful assault is, in my opinion, comparatively
negligible.
But the defendant could still settle the claim for
wrongful assault to which it had no answer. For these reasons a
cost order
limited to R10 000,00 should be appropriate.
[24]
In the result the following order shall issue:
1.
The claims for wrongful arrest and detention, impairment of dignity
and reputation
and litigation costs incurred in the magistrates’
court be and are hereby dismissed.
2.
The defendant shall pay R90 000,00 as compensation for wrongful
assault.
3.
The defendant shall pay costs in a limited sum of R10 000,00.
Z.
M. NHLANGULELA
DEPUTY
JUDGE PRESIDENT OF THE HIGH COURT
MTHATHA
Attorney
for the plaintiff :
Mr M. Mnge
:
c/o M. Mnge & Associates
MTHATHA.
Counsel
for the defendant :
Mr E.B. Sonqwelo
:
c/o Messrs E.B. Sonqwelo Attorneys
MTHATHA.