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[2018] ZAGPPHC 752
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Mdluli and Another v Minister of Police (55151/15, 5152/15) [2018] ZAGPPHC 752 (31 January 2018)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 55151/15, 5152/15
31/1/2018
In
the matter between:
Mdluli
Calvin
1
st
Plaintiff
Mayo
Liberty
2
nd
Plaintiff
and
Minister
of
Police
Defendant
Coram:
Munzhelele AJ
Heard:
30 November 2017
Delivered:
JUDGMENT
MUNZHELELE
AJ:
Introduction
[1]
The plaintiffs instituted an action against the defendant for damages
regarding their
unlawful arrest, detention and violation of right to
privacy. This incident is alleged to have occurred on 29 March 2015
at Motetema
Police Station. The defendant entered a notice of
intention to defend and also filed a plea to the claims. The
defendant denies
that the plaintiffs were arrested, detained; and
that their rights to privacy was violated. Therefore the plaintiffs
have a duty
to begin with adducing evidence to prove their claim for
damages.
[2]
Summonses were issued separately by the
plaintiffs under two different case numbers. It was thereafter agreed
during trial that
the two cases will be heard simultaneously, in
order to shorten the proceedings. Quantum and merits were dealt with
simultaneously
as per agreement.
Evidence
[3]
Liberty Moyo was the first plaintiff to
testify. He testified that they were seated at a party at Motetema
village together with
Calvin Mdluli and Wilbie Ntswane also known as
‘
source’.
While
still seated, a group of people came and started to accuse Calvin
Mduli of having an affair with their girlfriends. Some people
came
out from their cars and started to hit Calvin with bottles. As
Liberty and
'source
stood
up to defend their friend, they realised that Calvin had already been
injured. They advised Calvin to report the matter to
the police. The
three went to the police station.
[4]
They arrived at the police station at
23:00 pm, ‘
source’
remained in he car, and Liberty
accompanied Calvin inside to report the matter. Calvin requested the
police to assist him open a
case of assault. The police refused to
assist him, saying that he arrived at a wrong time as they were busy
with their duties.
[5]
Liberty out of concern asked the police to give him reasons for
saying that they are
busy because they were fast asleep, putting
their feet on top of the desk or table. The police told him to shut
up but he kept
on talking. He told them that he was taking a
video
and a photo of them sleeping. The video was taken. in order to
show the police seniors the following day. The photo was produced
in
court on bundle 'B' as evidence.
[6]
While the two were still taking a
video,
three police officers stood up and
came running towards Liberty and the other three went to Calvin. They
grabbed Liberty by the
collar and the other police pushing him to the
wall while taking Liberty's belt and shoe lace. All the police were
on uniform and
wearing bullet proof vests. Liberty could not
recognise the faces of these police officers.
[7]
During cross examination Liberty was
confronted with the photo evidence which shows a different version
from the one given during
examination in chief. The photo exhibited
police wearing jackets, shirt and jeans instead of bullet proof vests
as he said.
[8]
Furthermore, Liberty was confronted with
the fact that people on the photo did not seem like they were running
as he said; but were
just standing. His response was that “
the
one standing was the police officer who was answering Calvin when he
wanted to be assisted”.
[9]
Liberty was modifying his evidence as
the trial progress. He even changed his version, saying that only two
police officers came
to him instead of three/which he mentioned
during examination in chief.
[10]
He further stated that the police
grabbed them by their trousers, took their phones and put the two
friends in the holding cells
at around 12:00 midnight; whereas his
pleadings reflect that they were arrested at 01:00 am instead of
12:00 am.
[11]
Liberty added that the phones were
brought back while they were in the holding cell. Upon bringing the
phones back, the police officers
demanded cell phone passwords, which
were given to them. Cell phones were unlocked, and all the photos
were deleted except for
one, which was stored on the messages.
Liberty alleged that his phone is able to store photographs and
videos
on
messages. However, he could not very well explain why the video was
not found in the messages, whereas his phone can store such
in
messages. The police took a piece of paper and requested the two to
write their details on it. Police threatened the two, telling
them
that if they do not write their details they will remain in the cell
and never be released. They acceded to the threats because
of fear.
[12]
According to this plaintiff, the two
were kept in the cell until morning 5:00 am. Liberty described the
condition of the cells as
filthy, smelly and full of water. They were
given blankets to sleep. The particles or furs of the blankets were
on his clothes
such that he had to set his clothes on fire. There
were no other inmates at the cell.
[13]
Calvin Mdluli was second to testify. His
evidence confirmed the date and place of the same incident mentioned
by Liberty. However,
Calvin testified that he was confronted by one
gentleman and there was an exchange of unpleasant words between them.
The gentleman's
friends supported him against Calvin. The friends
attacked Calvin with a bottle, which cut him on the head. Liberty and
'source'
came and separated them. The three went to the police
station to report the matter.
[14]
Calvin confirms that when they arrived
at the police station, they found the police officers asleep at
23:10. Police officers were
wearing uniform, dry mack, shirt and some
with bullet proof vest. Calvin requested police officers for
assistance to open a case
of assault. He even volunteered to take
police officers to the place where the incident occurred, but the
police officers refused
to assist him, stating that they were busy.
When Calvin insisted with his request, the police officers said that
he was daring.
Liberty interfered disputing the police's reason for
not assisting Calvin. At that time Liberty indicated that he was
taking a
video of police officers sleeping, which he will show to the
police supervisor as proof that the police were asleep on duty. When
the police officers realised that they were being
video
recorded
by Calvin and Liberty, they
approached Calvin. One police officer grabbed Calvin by the collar of
the shirt. The other three police
officers went to Liberty . One of
them took Calvin's belt and shoe laces. They told them that they were
under arrest at 23:55.
[15]
According to Calvin, 'Source' came in
and found Calvin and Liberty with the police officers. When he
inquired what was going on,
the police told him to get out. The
police officers pushed Liberty and Calvin to the cell. Calvin
testified that they could not
sleep that night, because there was
neither a bed nor blankets in that cell. The cell had a filthy smell
and some little water
at the door only. The plaintiffs were released
at 5:00 am and went home. Calvin said that he took care of the injury
by bandaging
it himself.
[16]
Wilbie Ntsane ('source') testified that
he was in the company of the two plaintiffs at Motetema when Calvin
was assaulted by people
who kicked him and slapped him with open
hands. He further testified that Calvin bled through the nose because
he was slapped with
an open hand. He confirmed that the three went to
Motetema police station to report the matter. However, he did not see
what happened
inside the police station as he remained in the car. He
testified that he only came inside the police station when he
realised
that the two were taking too long to come out. He confirmed
that the shoe laces and belts of the two were taken by the police. He
asked the police officers as to whether the two were getting
arrested. He was told to get out.
[17]
Plaintiff's case was closed. Defendant
closed the case without calling any witness.
[18]
The counsel on behalf of the plaintiffs
argued that the plaintiffs proved the arrest and detention by the
police. They further argued
that they had proved their claim for
damages. Counsel submitted that a fair and reasonable award should be
R80 000 for each plaintiff.
[19]
Counsel for the defendant argued that
the plaintiffs failed to prove on a balance of probabilities that
they were arrested and detained.
Their case was full of
contradictions. On the issue of the assault, Calvin testified that he
was assaulted using a bottle by one
person. Liberty testified that
Calvin was assaulted with bottles by a lot of people. 'Source' said
no bottle was used to assault
Calvin, but he was only slapped with
open hands and kicked by the people.
[20]
'Source' testified that Calvin was not
injured on the head but J as just bleeding through the nose because
he was slapped with an
open hand. Calvin testified that he was
injured on the head. Liberty's evidence did not mention where Calvin
was injured.
[21]
Counsel submitted that these
contradictions by the plaintiff and his witness kept the court
wondering what happened. The counsel
for the defendant further
submitted that Calvin and Liberty contradicted each other during
their testimony. Liberty said that there
were blankets inside the
cell in which they slept. The blankets had furs which covered his
clothes. He said that he had to burn
his clothes because of the furs
from the blankets. But Calvin said that there were no blankets in the
cell. They did not even sleep
inside the cell. Liberty said that the
cell which he was in was full of water but Calvin said that
there was no water except
at the door. Calvin never said that they
were pushed so as to be banged against the wall when they were
arrested but liberty said
they were. The counsel submitted that the
plaintiffs failed to prove that they have been arrested and detained.
They also failed
to prove the damages claimed. He submitted that if
the court finds that they have proved their claim then the award
should be R30
000 each all inclusive.
Issue to
be determined
[22]
The court has to find whether there was an arrest and detention of
the plaintiffs on the 29 March
2015.
The
court has to also find as to whether the plaintiff has proved damages
and to also determine the damages to be awarded.
Legal
principles applicable
[23]
It is trite that the deprivation of a
person's liberty by means of arrest and detention at the hands of the
police is prima facie
unlawful.
In
Minister of Justice v Hofmeyer [1993] ZASC4 40 Hoexter JA held at
153D-E that:
‘
The
plain and fundamental rule is that every individual's person is
violable. In actions for damages for wrongful arrest or imprisonment
our courts have adopted the rule that such infractions are prima
facie illegal’.
[24]
In an action for wrongful arrest and
detention a plaintiff only bears the onus of proving the arrest and
detention.
In the case of Relyant
Trading (pty) Ltd v Shongwe and another [2007)1 ALL SA (SCA) Malan
AJA held on para 6 that:
‘
To
succeed in an action based on wrongful arrest the plaintiff must show
that the defendant himself or someone acting as his agent
or employee
deprived him of his liberty.
’
Discussion
[25]
The defendant denied the arrest and
detention of the plaintiffs and did not call any witness. A claim of
these plaintiffs for wrongful
arrest can only succeed if it can be
said that the defendant effected the arrest and detention. If the
plaintiffs, on whom lies
the burden of proof, produce evidence and
that evidence calls for an answer then in such circumstances the
plaintiffs has produced
a prima facie proof and in the absence of an
answer from the defendant, it becomes conclusive proof
(Goosen
v Stevenson
1932 TPD 223
at 226).
The
question is whether the evidence given in this case amounts to prima
facie evidence, and whether in the absence of the evidence
by the
defence it amounts to sufficient proof.
[26]
Upon assessment, the evidence of the
plaintiffs and their witness seems to be a fabrication on allegations
of assault. There are
a lot of contradictions in their
viva
voce
evidence. 'Source' contradicted
Calvin and Liberty about how this assault case occurred. Calvin said
he was attacked with a bottle
on the heard and suffered an injury.
Source said that there was no bottle used but Calvin was kicked and
slapped with an open hand,
which lead him to bleed through the nose.
[27]
They further contradicted themselves
regarding the issue of the bottle used as a weapon. Calvin testified
that he was assaulted
with a bottle by one person. Liberty testified
that Calvin was assaulted with bottles by several people. 'Source'
said that there
were no bottles used. The plaintiffs established
three versions on the same facts.
[28]
Liberty's own evidence contained two
different versions. He said that he was grabbed by the collar of his
shirt by the police who
were wearing uniform with bullet proof vest.
Yet he produced a photograph which shows three men with no bullet
proof vest, whom
he implicated for his arrest. One of the police
officer on the photograph was not wearing uniform. The credibility
and reliability
of this questionable.
[29]
The plaintiffs again contradicted
themselves regarding the number of police officers who apprehended
them. Calvin said that only
two police officers came to him and
grabbed his collar, whereas Liberty said that three police officers
came and grabbed him and
the other three went for Calvin. Between
these two versions, the court is unable to identify the correct one.
It therefore becomes
difficult for the court to comprehend what
really happened in the case in question.
[30]
The particulars of claim have the
arresting time as 01:00am but Calvin testified that he was arrested
at 23:55. Liberty testified
that he was detained at 12:00pm these are
three different versions about the arrest. Which version should the
court believe amongst
the three? It is trite law that a person stands
or falls by his pleadings.
[31]
The plaintiffs have contradictory
evidence about the cell in which they were detained in. Liberty said
that the cell in which he
was detained was full of water whereas
Calvin said there was no water at all except at the door.
They
further contradicted themselves regarding the presence or absence of
blankets in the cell. Liberty said that there were blankets
inside
the cell. They used the blankets to sleep inside the cell. Calvin
said that there were no blankets inside the cell. They
never slept
inside the cell. They were all the time standing until the police
released them. The story the plaintiffs concocted
went bad. One would
even think that they were not in the same cell.
[32]
Counsel for the plaintiffs argued that
these contradictions by the plaintiffs and their witness are
immaterial. He submitted that
the court should only look at whether
the plaintiffs were arrested and detained or not. It is trite law
that when assessing the
evidence the court should also look at the
reliability of the evidence presented. When assessing such, the
credibility of the witness
should be the central focal point in
establishing the reliability of such evidence. Contradictions by the
plaintiffs in this case
are material; and the court cannot overlook
such, especially when the defendants denied the arrest and detention
of the plaintiff’s.
The contradictions in this case arouse
suspicions of fabrication.
In the
case of Hodgkinson v Fourie
1930 TPD 740
at 743 the court stated as
follows:
‘
A
the close of the case of the one side upon which the onus rest the
question which the Judicial officer has to put to himself is:
''is
there evidence on which a reasonable
man might find for that side"
[33]
Thus, the contradictory evidence
presented before the court by the plaintiffs in this case cannot be
deemed prima facie nor sufficient
proof. In this case there is no
evidence upon which a reasonable court might find in favour of the
plaintiffs.
[34]
In the light of the above evidence the
court found that the plaintiffs failed on a balance of probabilities
to prove that there
was any arrest or detention by the police.
Costs
[35]
The defendant counsel submitted that
punitive costs should be ordered against the plaintiffs if their case
is not successful. There
was no substantiation for such request.
Therefore the court will not order punitive costs.
[36]
In the result the following order is
made:
1.
Plaintiffs claim1 and 2 are dismissed
2.
No order as to costs
M.M.
MUNZHELELE
ACTING
JUDGE OF THE HIGH FOURT
Counsel
for plaintiffs:
Adv M. Masombuka
Instructed
by:
Masweneng Inc. Attorneys
Counsel
for defendant:
Adv L. kalashe
Instructed
by:
The Office of the State Attorney