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South Africa: North Gauteng High Court, Pretoria
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2016
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[2016] ZAGPPHC 215
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Pather v Minister of Police (14512/13) [2016] ZAGPPHC 215 (31 March 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 14512/13
DATE:
31 MARCH 2016
In the matter
between:
SALOSHINI
PATHER
................................................................................................................
Plaintiff
And
THE MINISTER OF
POLICE
................................................................................................
Defendant
JUDGMENT
NKOSIAJ:
1. This is a claim
for damages for unlawful arrest and detention and assault against the
Minister of Police. It was alleged by the
Plaintiff that the arrests,
detention and assault was committed by members of the South African
Police Service who acted with the
course and scope of their
employment with the defendant.
2. By agreement
between the parties the issues of liability were separated in terms
of Rule 33(4) of the Uniform Rules, and accordingly
separated the
issues and postponed the aspects of quantum sine die. The matter
proceeded on the issue of Defendent’s liability
only.
3. The Defendant
accepted the duty to begin after which he proceeded to call two
witnesses. He thereafter closed his case whereupon
the Plaintiff
applied for judgement in his favour.
Brief Background of
this Matter
4. On or about 7
January 2013 the Plaintiff found herself as the Pretoria Railway
Station commonly known as Bosman Station. This
is the place where the
alleged unlawful arrest detention and assault took place before she
was taken to Pretoria Central Police.
She was allegedly held between
the periods as soon after 07h02 and released after 16h00 without
appearing in court or being charged.
5. Two members
uniform unit of the police who were on their way to catch a Gautrain
en route to Johannesburg where they were (are)
stationed.
6. Their testimony
was that they noticed a group of people surrounding a vehicle as if
there was a problem. They approached the
scene and the vehicle
referred to above was occupied by one lady, the Plaintiff.
7. On enquiry to the
crowd the police officers were allegedly informed by members of the
public that she allegedly collided with
a Anris vehicle and was
trying to flee the
scene. The arrest and detention and assault allegedly arose from
this.
WITNESSED TESTIMONY
8. In discharge of
its obligation the Defendant called its first witness Constable Moagi
Petrus Diale who testified under oath that
he is the arresting
officer.
9. He confirmed his
arrival at the Pretoria Station on his way to board a Gautrain to his
workplace in Johannesburg in the company
of other police officers.
10. It was his
testimony that he specifically approached the Plaintiff while sitting
in her vehicle, a Mazda 626 with the windows
closed. He requested her
to show him her drivers licence after she half - opened the window
and the engine of the vehicle was running.
11. He asked to
switch off the vehicle and she refused to either give him the
driver's licence or to step out of the vehicle.
12.lt was his
further testimony that the Plaintiff was unco-operative and used
finger - pointing and making noise that he and the
other police
officer were mere constables and she wants to leave to go to work.
She did not want people to waste her time and that
her husband is a
high ranking official in the army.
13. He further
stated that she failed to take instructions from him as police
officers and she tried to put her vehicle in motion.
This is when he
put his hand in the vehicle switching off the engine and pulled out
the key. He distracted her to effect an arrest
and pulled her out of
the vehicle. He then handcuffed her, for letting the vehicle to be in
motion causing a collision with another
stationary vehicle. He
further advised her to go with them to the police station but she
refused and started taking photos from
her cellphone.
14. This was
described as a second collision for which she was arrested for
including an allegation of failing to take instructions
and
obstructing the traffic, within the parking area of the station.
15. He further
stated that the arrest was preceded by a reasonable request for which
made it possible to take her to the police
station.
16. The second
constable Modise has been talking to the driver of the other vehicle
while the first witness was talking to the Plaintiff.
CROSS - EXAMINATION
17.lt transpired
during cross - examination that constable Diale, the arresting
officer, had made an arresting affidavit soon after
the arrest. It is
in this statement where he indicated that he arrested her for
negligent driving because she had already bumped
into a black Auris
Registration BC23NP GP.
18. His reasons for
his arrest was questioned and put to him that he acted unreasonably
and without a justification for arrest.
19. He left her at
the Pretoria Central Police Station and left for Johannesburg with
the other police officers. He had no knowledge
of how she was
released nor her court appearance, if there was any. It was put to
him that there was no second collision and that
it was a fabrication
as it was not contained in his statement.
20. The second
witness was Thabo James Modise who also testified under oath that he
is a constable within the South African Police
Services who was on
duty on he 7th of January 2013 with the first witness. They were both
on their way to board Gautrain fromo
Pretoria to Johannesburg when
their attention was drawn to the commotion at the station's parking
area.
21. He confirmed
that there was a first collision which they were told, happened
before their arrival. No further details of this
first collision was
ever outlined, except that members of the public were shouting to the
Plaintiff that she caused a collision
and was trying to flee from the
scene.
22. It was put to
him that his version of the events that led to Plaintiffs arrest was
also a fabrication to justify the unlawful
arrest effected by
Constable Diale. He insisted that she was obstructing traffic and
refused to be taken to the Police Station
at the Railway Station to
complete an accident report. He further echoed the 1st witness that
she was arrested for reckless and
negligent driving.
ON CROSS -
EXAMINATION
23. He conceded that
he is the one appearing on a photo taken by the Plaintiff from her
vehicle before her arrest. This photo depicts
that he was standing in
front of the camera and behind him there was a vehicle on a parking.
This contradicted the fact that Plaintiff
was obstructing traffic and
confirms that she was parked adjacent the vehicle this witness
claimed to have collided with. It further
confirms that there was no
obstruction of traffic as Plaintiffs vehicle was at a parking lot
adjacent to another vehicle.
24. He further
conceded on cross-examination that, on his statement, there is no
mention of a collision between Plaintiffs vehicle
and the Auris which
Constable Diale testified that it was the cause to arrest her for
committing an offence in his presence.
25. He further did
not know if the Plaintiff was formerly charged and whether she
appeared in court or not and whether the case
was finalised or not.
26. It was put to
both witnesses that excessive force was used in the arrest of the
Plaintiff which was denied by both witnesses.
This was not taken any
further.
27. It was further
put to both witnesses that there was no reason for the arrest of the
Plaintiff whom, it was contended on her
behalf that she did not
commit any offence let alone a Schedule 1 offence. The arresting
officer was said to have not entertained
a reason suspicion against
the Plaintiff to justify an arrest. It was put to both witnesses that
the arrest and detention of the
Plaintiff was unlawful.
28. Defendant closed
its case without proving any collision of either the 1st collision
nor the 2nd collision. No further evidence
was led to prove the
lawfulness of the arrest and detention of the Plaintiff, nor leading
of evidence that there was a reasonable
suspicion to justify an
arrest was reasonable or based on objective grounds.
29. PLAINTIFFS CASE
Plaintiff closed its
case without testifying.
30. Plaintiff
applied for judgement to be granted in her favour to the following
effect that:
30.1 The Defendant
is liable to compensate her for 100% of her proven damages in respect
of her unlawful arrest, detention and assault
on 7 January 2013;
30.2 The Defendant
is to be ordered to pay the cost of suit to the date of the
determination of the aspect of liability;
31 PLAINTIFFS
FURTHER ADDRESS IN SUPPORT OF ITS APPLICATION TO BE CONSIDERED:
31.1 That Plaintiff
is entitled to apply for judgement at the close of the Defendant’s
case without leading evidence and without
closing its case. It was
submitted on her behalf that the test to be applied is similar to
that of absolution from the instance
where a Plaintiff has not
discharged its onus. It was further submitted that if a Defendant
upon whom the onus of proof rests has
failed to lead such evidence in
discharge of that onus to the effect that a reasonable man could have
not come to the conclusion
that it might be accepted, the court would
be entitled to give judgement for the Plaintiff.
31.2 This
proposition of an application for judgement, where the Defendant bore
the onus and before the Plaintiff closing its case
or leading
evidence, was introduced in the old case of Siko vs Zonsa 1908 (T)
1013 where the court held that it would be a useless
(exercise) waste
of time to proceed with the matter further.
31.3 The Siko case
was confirmed as an applicable principle in the case of Hodgkinson vs
Fourie
1930 TPD 740
at page 743 where it was held as follows: “At
the close of the case of the one side upon whom the onus lies, 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”.
Further submission was that if the evidence is not only not
convincing but actually found by the trial court to be an utter
fabrication,
then it is evidence on which a reasonable man would not
find, and the court would be justified to grant absolution. This
court
agrees with this submission as logical and sensible.
31.4 I am of the
view that it will be unreasonable for the Plaintiff to lead evidence
as the Defendant has not made out a prima
facie case which warrants
evidence in rebuttal from the Plaintiff
31.5 It is accepted
that the evidence by both Defendant's witnesses was a fabrication in
an attempt to justify a wrongful arrest
which was not based on
objective or reasonable grounds:
31.5.1 no offence
was committed in the presence of the arresting officer
31.5.2 no evidence
of reckless and negligent driving was proven
31.5.3 no proof of
any collision or damages on the vehicles alleged to have collided nor
a witness who saw the first collision and/or
the driver of the Auris
31. Consequent upon
the above the following facts are found to have been proven:
a) That the
Plaintiff was arrested without a reasonable cause;
b) She was detained
between the period between 08H00 to 16H00 on the 7th January 2013.
c) The Defendant’s
action was unlawful in both the arrest and detention and that the
Defendant has failed to prove the lawfulness
of such arrest and
detention.
32.1 therefore find
that the version by both Defendant’s witnesses with regard to
the circumstances that led to the Plaintiffs
arrest as unpersuasive,
not corroborated, neither credible nor reliable. Their evidence was
riddled with inconsistencies and contradictions
and deviations from
their own written statements.
34. It is my further
finding that no case of assault was proven and therefore this aspect
is rejected.
35.1 am therefore in
full agreement with the views expressed in the leading case on
unlawful arrest and detention: Minister of Safety
& Security vs
Sekhoto and Another and my conclusion is that the arrest and
detention of the Plaintiff was not based on the
reasonable grounds
and therefore not lawful. The Defendant has failed to establish an
essential element of defence: lawfulness.
36. In the result
the following order is made:
36.1 Judgement is
granted against the Defendant as follows:
a) The Defendant is
liable for 100% for proven damages resulting from unlawful arrest and
detention
b) The quantum is
postponed sine dies
c) The Defendant is
ordered to pay the Plaintiffs costs to date hereof on party to party
scale.
V.R.S.N NKOSI
ACTING JUDGE OF
THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
Advocate for the
Plaintiff: J.C Van Heerden
Briefed by:
Geldenhuys Malatji Inc.
Advocate for the
Defendant: M.S Phaswane
Briefed by: The
Office of the State Attorney