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[2018] ZAECMHC 61
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Sidlayiya v Minister Of Safety and Security (1042/2013) [2018] ZAECMHC 61 (11 September 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, MTHATHA)
CASE
NO.: 1042/2013
In
the matter between:
BONKE
SIDLAYIYA
PLAINTIFF
and
MINISTER
OF SAFETY AND
SECURITY
DEFENDANT
JUDGMENT
NTSEPE
AJ
[1]
In
these trial proceedings the plaintiff is claiming for damages arising
from an alleged unlawful arrest, detention and assault.
[2]
The
parties sought an order for the separation of issues; I accordingly
granted an order separating merits and quantification in
terms of
rule 33 (4) of the Rules of Court.
[3]
In
his particulars of claim, the plaintiff alleges that :
"4.
On or around the 61 November 2012 at around 21h00 in the evening,
near circus triangle, Mthatha
plaintiff was unlawful assaulted and
arrested by the members of the South African Police Services who are
known to him.
5.
Subsequent
to the unlawful arrest and assault plaintiff was unlawfully detained
at Madeira police station in the early hours of
the 7
th
November 2012 and at all material times plaintiff was handcuffed and
handcuffs were tightened to inject pain. Plaintiff was caused
to
sleep in a cement floor with no mattress and with one thin blanket
and it was very cold at night. Plaintiff was detained in
a congested
cell where there were many in mates and toilet room was in one place
with their sleeping room. It was very terrible
and unbearable
condition. Plaintiff was released at around 7am on the 7
th
November 2012, when an ambulance summoned by police took him to
Mthatha General Hospital.
6.
As
a result of the unlawfully assault by members of South African Police
Services plaintiff suffered physical injuries and had to
be examined
by the doctors see annexures ''BS!".
7.
At
the time of the unlawful arrest, assault and detention plaint[ff had
not committed any offence as stipulated in Schedule 1 of
the
Criminal
Procedure Act 51 of 1977
. The arrest, assault and detention were
unlawful, wrongful and without juritification.
"
(sic)
[4]
The
defendant, in its amended plea, denies the aforegoing as follows:
“
4. The
contents contained herein are denied in amplification the defendant
avers that on
7
th
November
2012 round about 4h45 a.m the employees of the defendant received a
complaint from the workers at BP Garage that there
is a man hiding in
the bathroom. In response to that employees of the defendant attended
a scene and they found Banke Sidlayiya
in the bathroom covered with
blood andfi1rther took him to the Police Station wherein an ambulance
was called because at the Police
Station and transported to hospital,
what transpired thereafter is unknown to the defendant.
"
(sic)
[5]
The
parties correctly agreed that the plaintiff bore the onus and duty to
begin; in line with that agreement the plaintiff lead
evidence first
and testified in support of his claim.
[6]
The
material aspects of the plaintiffs testimony can be summarized as
follows:
6.1
He
is a 44 year old unemployed male. On 6 November 2012, at
approximately 21:00 pm, he was hitch hiking to his home village of
Ngqeleni at or near a BP garage in Circus Triangle, Umtata;
6.2
A
vehicle had stopped a distance away from where he and other persons
were hitch hiking and he went to the said vehicle to establish
whether it was travelling in the direction of Ngqeleni; the vehicle
was not travelling to where he was going and so he walked back
to his
initial hitch hiking spot (hiking spot);
6.3
Whilst
he was walking back to the hiking spot he was accosted by three male
persons who stabbed him on the head and robbed him of
his jacket,
wallet, phone and ran away disappearing into the darkness. He
initially gave chase but decided to retreat in fear of
his life.
Whilst retreating he saw police approaching on foot. The police asked
him why he was running away. He told them he was
not running away but
had in fact been robbed.
6.5
The police questioned him about the people running away and he told
them that he did not know the people that
were running away, that
they had robbed him of his belongings and that he was injured. The
police produced cuffs threatening to
arrest him if he did not tell
them who the people that ran away are. The plaintiff testified that
he told the police that he knows
his rights and challenged their
intention to arrest him, he none the less was hand cuffed by the
police. Whilst in cuffs one of
the police hit him with an open hand
on his face which angered him and he told the police that they were
behaving like the police
from the
"oppressive era".
This
infuriated the police who accused the plaintiff of insulting them. As
result the cuffs that were on the plaintiff were tightened
to inflict
pain.
6.7
Plaintiff
was placed on the ground and was lying on his stomach as the police
assaulted him. Plaintiff stated that he was hit with
a baton, taken
to the police vehicle (referred to in the evidence a Quantum).
6.8
The
plaintiff resisted when the police were placing him in the vehicle
and he was shoved in, he fell on his back with his body weight
on the
tightened cuffs.
6.9
The
police drove off but did not go to the police station, instead
attended to different complaints in Mthatha. The plaintiff sat
in the
vehicle pleading for the cuffs to be loosened to which a female
police officer responded that he swore at them.
6.10
The
police eventually arrived at the police station at approximately 5:00
am after they had taken the plaintiff from the hiking
spot at
approximately 10:00pm. At the police station he was told to get out
of the vehicle, due to his injuries he was unable to
and the police
left him outside. He got up with the assistance of a person who was
standing outside the police station. He eventually
got inside the
police station and saw the members who had arrested him at the
reception counter, he approached them and asked what
would happen to
him and he was told to go home. He told the police he cannot walk and
requested that they call an ambulance. An
ambulance was called and
approximately 1 hour after it was called, the ambulance arrived and
took plaintiff to hospital.
6.11
At
the hospital, the plaintiff was attended to by a nurse who stitched
his head wound, he was later also treated for his injuries
at St
Mary's Private Hospital and the said injuries were recorded in the
so-called J88.
[7]
A
copy of J88 was admitted by agreement between the parties; Mr Rili,
who appeared for the defendant placed on record that the correctness
of the contents of the J88 were admitted by the defendant.
[8]
According
to the J88 general examination the plaintiff had the following
injuries when he was examined by a Dr C W W Mtshabe:
"8.1
a " sutured wound" on the head;
8.2
"swollen
and tender wrists-right and left;
8.3
"handcuff
markings";
8.4
"extensive
bruising of the back and loin due to beatings"; and
8.5
"
Fractures" to the left and right hands.
"
[9]
The
plaintiff was cross-examined by Mr Rili and it was put to him that
the above mentioned injuries were not inflicted by the police
but
that the police had found the plaintiff so injured. The plaintiff
admitted that he had a stab wound on his head when the police
arrested him however he stood by his version that the police had
assaulted him and as a result of that assault he sustained the
further injuries noted by the doctor on the J88.
[10]
The
plaintiff was referred to the defendant's version at paragraph 4 of
the amended plea; referred to herein above which version
was denied
by the plaintiff. The plaintiff challenged the probabilities of the
defendant's version, particularly paragraph 4 to
which the plaintiff
was referred, stating that even if he was the person hiding in the
bathroom as alleged, he was, on the defendant's
version, drunk and
injured and as such would have posed no danger to the BP garage
employees or the police.
[11]
Mr
Rili also referred the plaintiff to paragraphs 4 and 5 of the
particulars of claim, as quoted herein above, and pointed out the
glaring difference between the plaintiffs version per his claim and
the plaintiffs
viva
voce
evidence.
The plaintiff confirmed that he lost conscience when he was shoved
into the vehicle at or near the hiking spot as alleged
in the claim.
However, regarding the pleaded allegation that he was placed in a
congested cell and caused to sleep on a cement
floor, the plaintiff
denied same; stating he was only in the reception area of the police
station.
[12]
The
plaintiff did not call further witnesses and closed his case.
[13]
The
defendant also called one witness, Constable Thobela Fortein, a
member of the South African Police Services who is stationed
at
Madiera Police Station, Umthatha.
[14]
The
material aspects of Fortein's evidence can be summarized as follows:
14.1
He
was on duty on the 6.7 of November 2012 and was the driver of a
marked police vehicle;
14.2
At
approximately 04:45 am they received a complaint,
via
10111,
from workers at a local BP garage about a person in the bathroom and
that they were scared;
14.3
They
attended BP garage and found a man in the toilet. The man was the
plaintiff, he was drunk and bleeding. After they removed
him from the
bathroom he became aggressive. He charged at the police, swinging
fists and insulting the police, as a result they
had to use force to
subdue him;
14.4
The
plaintiff was handcuffed and taken to the police station where an
ambulance was called. Fortein denied that they arrested the
plaintiff
and testified that
"we
had no reason to arrest and detain him".
[15]
After
the defense concluded leading Fortein in chief, Mr Rili sought to
have admitted onto the record as copy of the SAP10/Occurrence
Book
(OB) from Madiera police station for 6-7 November 2012. Mr Luzipho,
for the plaintiff, had no objections and agreed to have
the SAP10
admitted as what it purports to be. The SAP10 was admitted and marked
exhibit "B".
[16]
In
cross examination, the plaintiffs counsel referred Fortein to entry
187 of the SAP10 dated 7 November 2012; which records the
time of
entry as 04:45 and reads as follows:
"Reported:
Cst Fortien and Cst Baca. Proceeded to BP garage where they received
a complaint that there is a guy who stabbed
an A/male when we got the
we found an A/male by the name of Banke Sidlayiya laying in the
toilet garage he had a head injury and
also complained of chest pain
he fought with the police and we handcuffed him. On the arrival at
the Police station an Ambulance
was called for him.
"
(sic)
[17]
According
to Fortein, when they received the 10111 complaint, they contacted
the station and informed one Tyali of the complaint;
it was therefore
Tyali who had made entry 187 on information given to him by Fortein
and his partner.
[18]
Much
was made by plaintiffs counsel about the fact that there was no
statement taken from any complainant and that entry 187 was
made at
04:45 which meant the incident could not have occurred at 04:45 as
alleged by Fortein. Fortein conceded that no statement
was taken and
gave no reasons why a statement was not taken from the employees of
BP. However a material and relevant concession
by Fortein, under
cross examination, was in answer to plaintiffs counsel on the use of
force implemented by the police to which
Fortein answered
"Yes,
we used force in arresting him".
[19]
Even
upon questions by the court Fortein confirmed that they had affected
an arrest on the plaintiff and that the reasons for arresting
the
plaintiff was because he was aggressive and they required back up and
they wanted to call an ambulance for him. However, he
confirmed that
no charges were or would be preferred against the plaintiff and that
the plaintiff was released at the police station.
[20]
He
denied the plaintiffs vers10n and any assault by the police on the
plaintiff whereafter the defense closed its case.
[21]
The
plaintiff and the defense versions are mutually destructive. The
stance that a Court ought to take when dealing with mutually
destructive versions was set out in
National
Employers General Insurance Association v Gany
1931
AD 187
as follows:
"Where
there are two stories mutually destructive, before the onus is
discharged the Court must be satisfied that the story
of the litigant
upon whom the onus rests is true and the other false. It is not
enough to say that the story told ... is not satisfactory
in every
respect , it must be clear to the court of first instance that the
version of the litigant upon whom the onus rests is
the true version
..."
[22]
In
these proceedings the Defendant denied the arrest and detention. The
Plaintiff therefore bears the onus to prove the arrest and
once the
arrest has been established, the Defendant must justify same. The
Plaintiff also bears the onus of establishing facts
which objectively
indicate an assault.
[23]
In
National
Employers General Insurance v Jagers
1984
(4) SA 437
(E) at 440 D the court held that the approach to dealing
with onus and probabilities as:
"It
seems to me, with respect, that in any civil case, as in any criminal
case, the onus can ordinarily only be discharged
by adducing credible
evidence to support the case of the party on whom the onus rests. In
a civil case the onus is obviously not
as heavy as it is in the
criminal case, but nevertheless where the onus rests on the plaintiff
as in the present case, and where
there are two mutually destructive
stories, he can only succeed if he satisfies the court on a
preponderance of probabilities that
his version is true and accurate
and therefore acceptable, and that the version adduced by the
defendant is therefore false and
mistaken and falls to be rejected.
In deciding whether that evidence is true or not the court will weigh
up and test the plaintiff's
allegations against the general
probabilities. The estimate of the credibility of the witness will
therefore be inextricably bound
up with a consideration of the
probabilities of the case and, if the balance of probabilities favour
the plaintiff, then the court
will accept his version as being
probably true. If however the probabilities are evenly balanced in
the sense that they do not
favour the plaintiff's case any more than
they do the defendant's, the plaintiff can only succeed if the court
nevertheless believes
him and is satisfied that his evidence is true
and that the defendant's version is false."
[24]
The
Plaintiff's evidence was given in a clear and concise manner. There
were no material contradictions between his evidence in
chief and the
evidence that he led under cross-examination. He held a composed
demeanor and impressed the court with the objective
manner in which
he relayed the events of the night in question. He answered the
Defendant's questions with clarity; challenging
that which he
insisted was false. His overall demeanor in the witness stand and the
manner in which he testified was reliable and
satisfactory.
[25]
His
evidence was found to be particularly reliable in view of the
evidence contained in the J88. According to the doctor's findings,
which findings have been admitted by the Defendant, the Plaintiff had
handcuff marks on his wrists; which lends corroboration to
the
plaintiff's version that the police had deliberately tightened the
cuffs to inflict pain on him. Further corroboration of the
Plaintiff's version are the injuries to his back which are consistent
with how the Plaintiff alleges he was placed in the police
vehicle
and how he had been shoved into the vehicle by the police.
[26]
If
one contrasts the Plaintiff's evidence with the evidence of Constable
Fortein who testified for the Defendant, it becomes clear
that the
Defendant's case is improbable and cannot be accepted as true for the
following reasons:
26.1
Fortein
throughout his testimony was reluctant to admit even the most obvious
of facts;
26.2
He
contradicted himself materially by initially denying that they had
arrested the Plaintiff insisting that there was no reason
for them to
arrest the Plaintiff. Later in his testimony, when cornered by the
established facts put to him, he had no choice but
to concede that
there was an arrest effected on the Plaintiff but conveniently
tenders a reason that the arrest was effected because
the Plaintiff
was aggressive and/or violent towards the police;
26.3
Even
his reasons that he tendered for the arrest changed when convenient
as he initially had stated that the reason for arresting
the
Plaintiff was to obtain an ambulance for him, this later changed to
the police required backup from other members of SAPS that
were at
the police station, which ultimately changed to the need to remove
the Plaintiff from the scene for his own safety; and
26.4
He
was disingenuous in an attempt to mislead the court preferring to
refer to the arrest as
"we
took the Plaintiff'.
[27]
Furthermore,
the probabilities of the version tendered by the Defendant are
trumped by those of the version tendered by the Plaintiff.
Firstly,
the Plaintiff denies ever being at the BP Garage and/or having been
found by the police at the BP Garage testifying that
he had in fact
been hitchhiking at the time of the arrest. The police are adamant
that the Plaintiff was at the BP Garage and that
they had attended
the scene at the request of the employees of the BP Garage. However
no statements are taken from any employee
of the BP Garage relating
to the so-called complaint. Even in the circumstances where a
statement could not be taken, the police
ought to have the names of
the persons they dealt with at the scene in their pocket books; not
even the names of those persons
who had laid the alleged complaint
are tendered by the Defendant in any of the documents before Court or
in Fortein's evidence
before Court. The Defendant also failed to call
any of the 'complainants' as witnesses in these proceedings. The
absence of information
of any complainant in my view is consistent
with the Plaintiffs version that he was never at the BP Garage.
[28]
The
only 'record' of the incident is entry 187 in the SAP 10, which
exfacie,
the
document was information relayed to Tyali by the police who allegedly
arrested the Plaintiff. This piece of evidence is unreliable
as it
cannot be corroborated by any objective facts and is nothing short of
'self corroboration'. Furthermore, the time the
alleged report
was made contradicts Fortein's evidence as he testified that the
complaint was received at 04:45 am whereas the
entry suggests that
the incident occurred prior 04:45 am when it was reported. If
Fortein's evidence were to be accepted as accurate,
the time
reflected on entry 187 ought to be later than 04:45 am. The time,
however seems to be consistent with the Plaintiffs version
that he
was taken to the police station around 5:00 am and an ambulance was
called.
[29]
In
all the circumstances, I find that the Plaintiff was arrested and
assaulted by the police as alleged. It is trite law that the
object
of the arrest must be to bring the arrested person to justice and not
for any other purpose that is not intended by legislation.
(Minister
of Safety and Security v Sekhoto
[2011]
2 All SA 157
(SCA) [31]).
[30]
On
the Defendant's version alone the Plaintiff was arrested for purpose
not intended by legislation and there was never an intention
to bring
the Plaintiff to Court. Furthermore, on the Defendant's version the
police found a drunk and injured person; as the Plaintiff
correctly
put it in his cross-examination, such a person could not have posed a
danger on either the employees of the BP Garage
or the police as the
evidence of Fortuin was that the person was intoxicated and the state
described in the evidence cannot warrant
or justify the force and
arrest that was executed by the police on the day in question. In any
event, in the totality of the evidence,
whether it be on the version
of the Plaintiff or that of the Defendant what becomes clear is that
the polices actions were wrongful
in the extreme and that that they
had employed arrest in circumstances that did not warrant an arrest.
[31]
In
the result, judgment is entered in favour of the Plaintiff for the
unlawful arrest, detention and assault with costs.
N
Ntsepe
Acting
Judge of the High Court
Counsel
for the Plaintiff:
Mr Luzipho
Instructed
by Mjulelwa Inc Attorneys, Mthatha
Counsel
for the Defendant:
Mr Rili
Instructed
by the State Attorney, Mthatha
Dates
heard:
8 and 9 May 2018
Delivered:
11 September 2018