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[2016] ZAECELLC 4
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Nel v Minister of Police (EL375/15; ECD775/15) [2016] ZAECELLC 4 (26 July 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(EAST
LONDON CIRCUIT LOCAL COURT)
CASE
NO: EL 375/15
ECD
775/15
[Not
reportable]
In
the matter between
CURTIS
DAMIEN NEL
Plaintiff
and
MINISTER
OF POLICE
Defendant
JUDGMENT
MBENENGE
J
:
Introduction
[1]
On the evening of 22 January 2015 the plaintiff and his companions
(the late Madoda Chelsean (Madoda) Hallom and a certain Kwanele)
had
been at Ndosie’s Tavern, Southernwood, East London where they
partook of alcoholic beverages. At about 21h00, on
the same
night, as they left the tavern proceeding to a shop to buy bread for
themselves, it started raining heavily. They
took refuge in a
distribution room (electrical room) in Bishop Court (the Flats), in
the hope that the rain would subside.
It however continued
raining, resulting in the plaintiff and his companions spending the
remaining hours of the night in the electrical
room.
[2]
In the earlier hours of the following morning the plaintiff and his
companions were arrested and subsequently detained by members
of the
South African Police Service (the Service) having been suspected of
breaking into a motor vehicle and stealing therefrom
several items.
Because the plaintiff and Madoda had sustained injuries at about the
same time the arrest was effected, they
were treated at the Frere
Hospital (the Hospital) and discharged, but remained in police
custody until released on bail upon appearing
in court.
The criminal proceedings that the plaintiff and his companions
subsequently faced were eventually withdrawn.
[3]
In the wake of such withdrawal the plaintiff and Madoda launched
separate action proceedings before this court seeking to recover
damages from the defendant sued on a vicarious liability basis,
consequent upon their alleged wrongful arrest and detention, and
alleged assault by members of the Service. The proceedings were
consolidated as they emanated from the same set of facts.
At
the commencement of the trial of the consolidated action I was
informed, from the Bar, that Madoda had met his demise on the
previous morning. In light of this, the actions were separated,
with the case of Madoda standing over to allow for a possible
substitution, in due course. In these circumstances, the
plaintiff’s case proceeded on its own, and ran to a finish,
hence this judgment.
The
pleadings
[4]
As already pointed out, the action is three-pronged. Claim A is
for arrest and detention of the plaintiff from 23
January 2015
to 26 January 2016, which is said to have been unlawful principally
on the ground that prior thereto the members of
the Service concerned
bore no reasonable grounds for believing “
that the plaintiff
had been involved in the commission of an offence.”
Claim
B relates to the assault on the plaintiff allegedly perpetrated by
members of the Service during the arrest and resulting
in the
plaintiff sustaining lacerations to his head and left hand, and
“
injury to his dignity.”
[5]
In resisting the action the defendant, whilst admitting that the
arrest had been without a warrant, pleaded that the arrest
was
“
executed after a case of theft and malicious injury to
property was brought against the [plaintiff].”
The
assault, so it was pleaded, was perpetrated by “
community
members who assisted the complainant in the case against the
plaintiffs whilst they were fleeing from the scene of crime.”
Issues
for determination
[6]
The trial proceeded with the following issues falling to be
determined, namely:
(a)
whether the arrest and resulting detention of the plaintiff was
justified;
(b)
whether the plaintiff was assaulted by members of the Service; and
(c)
in the event of any one of the issues referred to in paragraphs (a)
and (b) above being
decided in favour of the plaintiff, the quantum
of damages to which the plaintiff is entitled.
[7]
Regard being had to the provisions of rule 39(13) of the Rules of
Superior Court Practice, the plaintiff adduced evidence first,
bearing the onus to prove the alleged assault on him, whilst the
defendant remained bearing the onus to justify the arrest and
detention. The case of the plaintiff was closed after he (the
plaintiff) had testified. In pursuit of the defence to
the
action Constable Mntwelizwe, Constable Mani and Ms Nolubabalo Mpanza
testified, one after the other.
The
assault
[8]
According to the plaintiff he drank himself to a stupor and slept
through the night, whilst his companions continued drinking,
in the
electrical room. Towards daybreak on Friday, 23 January 2015,
at about 4h00, the plaintiff was woken up by the scream
of Madoda,
the first victim of the assault. Two policemen clad in uniform,
in the company of a civilian, started hitting
them. He said he
was hit three times on his head with a steel object, approximately
30cm in length, that looked like a gun;
he warded off the fourth blow
with his left hand, in the course of which he sustained an injury to
his middle finger. As
a result of the injury to his head he
bled a lot and at some point became unconscious. Kwanele was
handcuffed whilst he and
Madoda were tied with a cable around their
wrists.
[9]
The assault and the fact that blood flowed on the floor into a nearby
flat made one of the flat occupants agitated and demand
that they
clean the floor of the blood, which Kwanele did. Pepper spray
was thereafter shot in their eyes. Even though
water contained
in a 20 litre drum was splashed on them to wipe out the blood on the
plaintiff’s and Madoda’s heads,
the bleeding did not
stop. The only person the plaintiff said he saw being assaulted
by a civilian was Kwanele. The
plaintiff testified that the
injuries he sustained were caused by the police.
[10]
The plaintiff denied ever breaking into a motor vehicle parked
outside the Flats and having stolen items therefrom. Because
he
and Madoda grew weak from the injuries they bore, prior to being
detained, they were taken to the Hospital where they were treated
and
discharged. The plaintiff testified that when they were being treated
he asked the nurse in charge to furnish him with a J88
medical form,
at which point the policemen in their company interposed saying the
nurse should not do so as the plaintiff was a
criminal who did not
deserve of being furnished with the J88 form.
[11]
Under cross examination the plaintiff denied having informed the
attending nurse that he had been assaulted by members of the
community, stating that all he told the nurse was that they had been
assaulted by the police and that the police had told them
to keep
their mouths shut and say nothing about the assault.
[12]
Constable Mntwelizwe who was the first to testify in defence to the
action is a member of the Service who resides at the Flats.
Upon knocking off duty on the morning in question, he got to the
Flats and saw three men escape from the side of the driveway in
the
vicinity of the car park. He smelt a rat, and gave chase.
He apprehended one of the suspected culprits, described
as having
been taller than the two others – Kwanele. Mr Botye, one
of the flat occupants, apprehended the plaintiff
and Madoda.
When the two were brought to the scene they were already bleeding
from their heads. Constable Mntwelizwe
did not know how the
plaintiff and Madoda got to be injured, and only received a report
from Mr Botye that they might have been
assaulted by some young men
in the street before being apprehended. Constable Mntwelizwe
said he enquired about the identity
of the assailants from Mr Botye,
but Mr Botye did not seem to know the names of the assailants.
He at some stage went down
the street to investigate who the alleged
assailants were, to no avail.
[13]
Constable Mani, who effected the arrest on the plaintiff and his
companions, testified that he got to the scene at a time when
the
plaintiff (and his companions) had already been apprehended.
According to Constable Mani at that point the plaintiff
was already
bleeding from his injury on his head.
[14]
Ms Mpanza was a nurse in the Casualty Section at the Hospital during
January 2015. She testified that whilst treating
the plaintiff
she made entries to the relevant hospital card. One of the
entries appearing on the card is -
“
Community
assault with a knobkerrie complaining of body pains and two
lacerations to the head.”
[15]
Whilst she bore no independent recollection of the facts of this
matter, Ms Mpanza was adamant that she made the entry based
on the
information supplied by the plaintiff, adding that it was standard
practice to do so, unless the patient in the company
of the police
was not able to speak, in which event she would have recorded what
the police informed her
.
[16]
It is clear from the above that I am faced with two mutually
destructive versions and the court’s approach in such an
instance was stated by Eksteen AJP (as he then was) in
National
Employers General Insurance Co. Ltd v Jagers
as follows:
“
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 a 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 other version advanced by the defendant
is
therefore false or 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 a witness will
therefore be
inextricably bound up with a consideration of the probabilities of
the case and, if the balance of probabilities favours
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.
This
view seems to me to be in general accordance with the views expressed
by Coetzee J in
Koster
Ko-öperatiewe Landboumaatskappy Bpk v Suid-Afrikaanse Spoorweë
en Hawens (supra) and African Eagle Assurance
Co Ltd v
Cainer
(supra).
I would merely stress, however, that when in such circumstances one
talks about a plaintiff having discharged the onus which
rested upon him on a balance of probabilities one really means that
the Court is satisfied on a balance of probabilities that he
was
telling the truth and that his version was therefore acceptable. It
does not seem to me to be desirable for a Court first to
consider the
question of the credibility of the witnesses as the trial Judge did
in the present case, and then, having concluded
that enquiry, to
consider the probabilities of the case, as though the two aspects
constitute separate fields of enquiry. In fact,
as I have pointed
out, it is only where a consideration of the probabilities fails to
indicate where the truth probably lies, that
recourse is had to an
estimate of relative credibility apart from the probabilities.
”
[17]
The plaintiff claims to have been assaulted by members of the Service
when the impugned arrested was being effected.
On his own
showing he was heavily intoxicated and at some point half conscious.
His perceptions must have been greatly impaired,
rendering his
account of how he received the injuries less credible. There is
no reason to disbelieve the version of the
police witnesses that Mr
Botye is better placed to shed light regarding how the plaintiff got
to be injured. The version
of the police witnesses regarding
the assault finds support from Ms Mpanza’s testimony concerning
what the plaintiff told
her. Ms Mpanza was not shaken under
cross examination.
[18]
It is thus more probable that the plaintiff was assaulted by members
of the community prior to being arrested, and not by the
police, with
the result that the plaintiff must be non-suited on the assault
claim.
The
arrest and detention
[19]
According to the plaintiff none of the police who arrested them and
accosted them to the police van informed them of the reason
for the
arrest. Nor were they warned of their constitutional rights
prior to the arrest. He further testified that
Kwanele said he
overheard the police discussing among themselves that they were just
going to drive them around the block and thereafter
release them, but
that never happened. There had been mention of them having
broken into a car and having stolen therefrom
a spare wheel, car
radio and some money from Kwanele, but according to the plaintiff the
police informed them of the alleged offence
upon arrival at the
police station. The only time, according to the version of the
plaintiff, they were warned of their constitutional
rights was on
Saturday, 24 January 2015 when they were being charged.
[20]
The version of Constable Mani which is a far-cry from that of the
plaintiff was that at the scene the plaintiff and his companions
were
warned of their constitutional rights.
[21]
An aspect which, in my view, is dispositive of this case is whether
the plaintiff’s arrest, without a warrant, was justified
in
terms of section 40(1)(b) of the Criminal Procedure Act 51 of 1977
(the CPA). Section 40(1)(b) gives a police officer,
such as
Constable Mani, the power to arrest, without a warrant, a person
reasonably suspected of having committed an offence referred
to in
Schedule 1 to the CPA.
[22]
It is trite law that jurisdictional facts for an arrest made in terms
of section 40(1)(b) are that-
(a)
the arrester must be a peace officer;
(b)
the arrester must entertain a suspicion;
(c)
the suspicion must be that the arrestee committed an offence referred
to in Schedule 1;
and
(d)
the suspicion must rest on reasonable grounds.
[23]
Constable Mani who arrested the plaintiff is definitionally a peace
officer. It remains only to consider whether the
defendant
discharged the onus of establishing the three other requisites.
[24]
Constable Mntwelizwe bore no hand in arresting the plaintiff.
He however interacted with Mr Botye and verified that Mr
Botye’s
vehicle had been broken into and certain items removed therefrom.
[25]
Constable Mani arrested the plaintiff (and his companions) on the
strength of information gleaned from Mr Botye. The
relevant
portion of the transcript captures the essence of Constable Mani’s
testimony as follows:
“…
I then
interviewed Pumi Botye aside.
And what did he tell you in this
interview? --- He told me that there had been a breakage from his
motor vehicle. I asked
him as to what was he thinking off.
And what was his response? --- He
said he was thinking of opening a case M’Lord.
Did he say who he suspected to
have broken into his motor vehicle? --- Yes I asked him that
question, he pointed at the three people
who were standing with the
constable. After he told me that M’Lord he had an
intention of opening a case I said to
him that he had to go to East
London Police Station to open a case.
Yes? --- The other thing that I
noticed to the three people, the other two were bleeding.
Yes? --- When I tried to find out
as to what happened, it appeared M’Lord that the people who
tried to apprehend them, according
to the information I gathered from
Mr Botye when he tried to apprehend them they ran to the street.
He went to fetch them
across the street, he was assisted by people
and it became clear M’Lord that when he went to fetch them
across the street
he came with them bleeding. Before I could go
M’Lord Constable Ntwelizo went to look if he could see those
people from
the street, but when he came back he came back not seeing
those people.
Sir were the three people
arrested at any stage? --- Yes.
COURT
At which stage? --- After Constable Ntwelizwe came back and I also
M’Lord, after I interviewed Mr Botye I told them that as they
were pointed after the breakage from the motor vehicle that
they are
the ones that broke into the motor vehicle and they are now arrested.
So you were the person who
arrested them? --- That is correct.
COURT
Sorry before you proceed, you arrested tem on the strength of what
Botye told you? --- Yes that is correct M’Lord Botye pointed at
them as the people who broke into his motor vehicle.
For no other reason? --- No
M’Lord.”
[26]
From a reading of the above, there certainly is nothing linking the
plaintiff to the commission of the alleged offence.
There was
no investigation, on the part of Constable Mani, into the essentials
relevant to each particular offence. Even
assuming that
Constable Mani harboured a suspicion, the circumstances giving rise
to the suspicion were not such as would ordinarily
move a reasonable
man to form the suspicion that the plaintiff had committed a First
Schedule offence. Constable Mani appears
to have accepted the
mere
ipse dixit
of Mr Botye without ado. He conducted no
verification of what he was told by Mr Botye. There is no
evidence of the
information gleaned by Constable Mntwelizwe having
been conveyed to Constable Mani. The steps taken by Constable
Mani were
not sufficient.
[27]
The detention of the plaintiff following upon an unjustified arrest
was similarly unjustified. This renders it unnecessary
for me
to enquire into whether Constable Mani applied his mind as to whether
the detention was necessary at all.
Quantum
[28]
There remains the question of damages to be awarded the plaintiff for
the unlawful arrest and detention.
[29]
One should be wary of the fact that the award to be made should
reflect on the importance of the right to personal liberty
and the
seriousness with which any arbitrary deprivation is regarded in our
law. In
Thandani vs Minister of Law and Order
Van
Rensburg J made the following observation with regards to unjustified
deprivation of liberty:
“
In
considering
quantum
sight must not be lost of the fact that the liberty of the individual
is one of the fundamental rights of a man in a free society,
which
should be jealously guarded at all times and there is a duty on our
courts to preserve this right against infringement.
Unlawful
arrest and detention constitutes a serious inroad into the freedom
and rights of an individual
.”
[30]
Another useful and comprehensive list of the factors to be taken into
account when an award of damages for wrongful arrest
and detention is
being considered is highlighted in
Law of Damages
in the
following terms:
“
The circumstances under
which the deprivation of liberty took place, the presence or absence
of an improper motive or “malice
on the part of the defendant;
the harsh conduct of the defendant; the duration and nature (e.g.
solitary confinement or humiliating
nature) of the deprivation of
liberty; the status, standing, age and health and disability of the
plaintiff; the extent of the
publicity given to the deprivation of
liberty; the presence or absence of an apology or satisfactory
explanation of events by the
defendants; awards in previous
comparable cases; the fact that in addition to physical freedom,
other personality interest such
as honour and good name and
constitutionally entrenched fundamental rights have infringed; the
high value of the right to physical
liberty; the effects of
inflation; the fact that the plaintiff contributed in some way to his
or her misfortune; the effect the
award may have on the public purse;
and according to some, the view that the
actio
iniuriarum
also has a
punitive function.”
[31]
The plaintiff was arrested in the early hours of Friday, 23 January
2016. He was thereupon detained in police cells for
the period
up to and including Monday 26 January 2016 at 16h00 when he was
released on bail. The arrest took place within
view of members
of the public (occupants of the Flats). He was being associated
with the commission of an offence.
There is no evidence of how
many members of the public eye-witnessed the arrest. He was not
supplied timeously with the medication
he needed given to him at the
Hospital. He estimated the cell inmates at around 28, yet the
cell area was 150m².
They were all supplied with not so
thick mattresses and two blankets per awaiting trial inmate.
The circumstances were not
described as having been squalid, but that
does not detract from the fact that an unlawful detention constitutes
a serious inroad
into the freedom and rights of an individual.
[32]
There is not much to say about the plaintiff’s personal
circumstances. He is 24 years old, having been born on
24
February 1992, and is unemployed.
[33]
Regard being had to the factors dealt with above and awards made in
other cases,involving unlawful arrest and detention,
I am of
the view that an award of R140 000.00 should reasonably
compensate the plaintiff.
Costs
[34]
The parties were
ad idem
that costs should follow the result,
but differed with regards to the scale of such costs. The plaintiff
has attained substantial
victory. This is not the case of a defendant
who has been successful on a distinct issue wholly unconnected with
the issue upon
which the plaintiff has succeeded. The whole of the
plaintiff’s evidence was relevant in pursuit of both claims,
albeit that
the assault claim, which is in any event on the facts of
this matter a smaller claim, has failed.
[35]
Unlike in
Fubesi
vs Minister of Safety and Security,
I
did not find the facts of this matter and the application of the
legal principles thereto to be complicated. In my view,
costs
should be awarded on the Magistrate’s Court scale as that court
could and should have been approached for redress,
in the first
place.
Order
[36]
The following order is made:
(a)
The plaintiff’s claim for damages arising from his arrest and
detention (Claim A)
succeeds, whilst the claim for damages arising
from his assault (claim B) is dismissed.
(b)
The defendant is directed to pay the plaintiff R140 000.00 as
and for damages in respect
of his unlawful arrest and detention, as
also interest on this amount at the legal rate from a date 14 days
from today to date
of final payment.
(c)
The defendant shall pay the plaintiff’s costs of suit on the
Magistrate’s Court
scale, together with interest thereon at the
legal rate from a date 14 days after
allocator
to the date of final payment.
_____________________
S
M MBENENGE
JUDGE
OF THE HIGH COURT
Counsel
for the plaintiff
: Mr D Pitt
Instructed
by
: M T Klaas Attorneys
East
London
Counsel
for the defendant
: Mr N P Mnqandi
Instructed
by
: Bhisho State Attorney
East
London
Date
heard
: 21 – 23 June 2016
Date
delivered
: 26 July 2016