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[2016] ZAGPPHC 1045
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Lolwane and Others v Minister of Safety and Security (22698/2002) [2016] ZAGPPHC 1045 (15 December 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO: 22638/2002
15/12/2016
Reportable:
No
Of
interest to other judges: No
Revised.
T
L
LOLWANE First
Plaintiff
W
M
LOLWANE Second
Plaintiff
J
RAMOTHIBE Third
Plaintiff
M
C
SEKWELE Fourth
Plaintiff
A
RAMOTHIBE Fifth
Plaintiff
M
G
LOLWANE Sixth
Plaintiff
M
R
LOLWANE Seventh
Plaintiff
Z
E LOLWANE
Eighth
Plaintiff
M
G
MAHLANOKO Ninth
Plaintiff
and
MINISTER
OF SAFETY AND
SECURITY Defendant
JUDGMENT
1.
In this matter, the First to Ninth Plaintiffs
instituted action against the Defendant, the Minister of Safety and
Security, for
damages suffered by them based on delict arising from
events that occurred on 26 August 2001 and 7 September 2001 at or
near Bapong
Village, Mafikeng.
2.
The First, Second and Third Plaintiffs allege
that they were assaulted by Inspector Montshiwagae when they were
shot with live bullets
on 21 August 2001.
3.
All the Plaintiffs, but for the Third Plaintiff,
claim that on 7 September 2001 and at Bapong Village they were
unlawfully arrested
without a warrant and, according to the evidence,
they were detained for a period of more or less four hours. The Third
Plaintiff
alleges, as an alternative, that he was arrested on 8
September 2001.
4.
At the commencement of the matter, the merits and
quantum were separated and I'm only to adjudicate on the liability of
the defendant
arising out of the events of 21 August 2001 and 7
and/or 8 September 2001.
5.
The trial before me stretched over a period of 10
days. The Eighth Plaintiff filed a notice of withdrawal and eight
witnesses were
called by the Plaintiffs, who presented their case at
the commencement of the trial. After the Plaintiffs closed their
case, the
Defendant called six witnesses to testify on its behalf.
6.
For purposes of this judgment, I am not going to
summarise the evidence of each witness. I do not intend to do so for
the reason
that the evidence by the various Plaintiffs was
repetitive, explaining the same event over and over, although I
cannot fault the
Plaintiffs for requiring each and every Plaintiff to
testify.
7.
The factual matrix of the Plaintiffs' evidence
was to the effect that on 21 August 2001 two men arrived in the
vicinity of the shebeen
on the premises of the First Plaintiff {now
deceased and substituted by his estate). The two men proceeded to the
kraal and removed
a cow and chased it to the loading zone. This is
one of the issues where the Defendant's witnesses have a different
version. According
to the Defendant's witnesses, the First Plaintiff
identified an incorrect cow which was then chased to the loading
zone.
8.
The witness Reuben Sekwele testified that he
noticed that the wrong cow was selected and the witnesses were all in
agreement that
the cow was returned to the kraal.
9.
According to the Plaintiffs, the First Plaintiff
was upset about the fact that the two people, who they later on
became aware were
policemen, did not discuss the issue beforehand
with the First Plaintiff. This led to a standoff between the First
Plaintiff and
the two policemen.
10.
According to the Plaintiffs, one of the policemen
stated
"staan ver ek skier .
This
was followed by one of the policemen firing shots at the First
Plaintiff (Thando) and thereafter firing shots at the Second
Plaintiff (Watchman). The Third Plaintiff gave evidence to the effect
that he was also hit by a bullet fired at Watchman. His injury
was
not of a serious nature.
11.
The Defendant's version in relation to the
shooting incident is somewhat different as far as the shooting
incident is concerned.
According to the Defendant's witnesses, the
First Plaintiff was confrontational and did not want to allow the
policemen to 1emove
the cow that had to be handed back to one
Rasemane, who was the owner of the cow.
12.
According to the Defendant's version, the First
Plaintiff apparently had his one hand in his pocket, at some stage
threatened to
use his firearm and had a stone in his hand. When the
confrontation heated up, he used the words "come
boys"
and people came out of the shebeen armed with
pangas and knives. The policeman, Ramakatsa, was injured
probably by a stone
that was thrown at him. It is common cause that
Ramakatsa sustaiaed an injury and this was not disputed by the
Plaintiffs.
13.
On 7 September 2001, all the Plaintiffs, with the
exception of the Third Plaintiff, were arrested. Ramakatsa,
Montshiwagae, Sophie
Pele and Reuben Sekwele made statements under
oath. It was on the strength of this information that Ramagaga
effected the arrests
of the Plaintiffs, mainly on the basis of a
charge of public violence.
14.
Taking all the evidence that was led at the trial
into account, I have to adjudicate upon the following two issues.
15.
Firstly,
whether the Defendant is liable in delict to the First, Second and
Third Plaintiffs in respect of an assault or unlawful
conduct
perpetrated against the First, Second and Third Plaintiffs. As far as
this issue is concerned, this court will have to
decide as to whether
the conduct of Montshiwagae was commensurate with the threat posed by
the group action. As far as this issue
is concerned, the onus rested
on the Defendant to prove that it was justified in shooting at the
First, Second and Third Plaintiffs.
[1]
16.
The second issue to be determined is whether the
arrest of the respective Plaintiffs was lawful and justified without
a warrant
of arrest on the basis that the policeman, Ramagaga, had a
reasonable suspicion that justified the arrests. The question on this
point will not be what eye witnesses stated during the course of the.
trial before me, but what information was before Ramagaga
at the time
he effected the arrests and whether that information was sufficient
in the sense that he had a reasonable suspicion
objectively tested to
effect the arrests. This decision of Ramagaga was based on the
statements taken at the time from Ramakatsa,
Montshiwagae, Sophie
Pele and Reuben Sekwele.
17.
I will now deal with the first issue, and that is
whether there was an attack of such proportions that it justified the
shooting
by Montshiwagae. As I stated earlier, the onus clearly
rested on the Defendant to prove justification for shooting the
First, Second
and Third Plaintiffs. The Defendant relied on an attack
by a group of people of approximately 25 people as well as others
from
a different direction. The witnesses that the Defendant relied
upon for purposes of this justification are the witnesses
Montshiwagae,
Ramakatsa, Pele and Reuben Sekwele.
18.
The evidence of Montshiwagae and Ramakatsa was
fairly consistent. The evidence of Pele was not consistent with the
evidence of the
other witnesses called on behalf of the Defendant.
19.
The witness Pele did not impress me at all. I had
the opportunity of observing her as a witness and she was not an
impressive witness.
She took a long time to answer very basic
questions that were put to her and her description of the events is
inherently improbable.
The witness described an event in terms of
which Thando Lolwane, the First Plaintiff, broke a beer bottle when
he jumped over the
gate. No one else in the trial has witnessed such
an event.
20.
It also seems from the evidence in totality that
the truck in which she claimed she viewed the incident from, was
probably not in
front of the First Plaintiffs gate, but rather in the
vicinity of the loading zone. I am of the view that the evidence of
Pele
in respect of the actual shooting incident may well be rejected.
21.
What remains is the evidence of the two policemen
and Reuben Sekwele. It is rather strange, once again, that Reuben
Sekwele did
not see any attack. One would have expected that he would
have noticed at least some form of attack on the policemen whom he
was
assisting. It is also necessary to note that Ramakatsa and
Montshiwagae testified about a second group of people attacking them
from both sides of the fence, whilst their statements that were made
a few days after the shooting incident make no mention of
this.
22.
As far as the shooting of the Second Plaintiff
(Watchman) is concerned, the evidence at the trial was that
Montshiwagae saw him
attacking him having a panga in his hand. In
bundle B appear the statements of the two police witnesses as well as
the statement
of Reuben Sekwele, which was taken from them at a time
when the events were certainly still fresh in their memories. It is
clear
from these statements that neither Ramakatsa nor Montshiwagae
made any mention of any panga that was in the possession of the
Second
Plaintiff. It is unthinkable that they forgot to mention a
panga in the possession of the Second Plaintiff if such was the case,
shortly after the incident.
23.
A question was also directed at Montshiwagae as
to whether the panga was collected from the scene after the shooting
incident. He
stated it was not. In my view, it would have been an
important consideration for the policemen on the scene, as members of
the
public were shot by members of the police with live ammunition.
When the question was posed to Montshiwagae as to why no effort
was
made to retrieve at least the panga of the Second Plaintiff,
Montshiwagae answered that because of the mood and the apparent
animosity and hostility of the people present no effort was made to
retrieve the panga. I find this explanation nonsensical as
the
policemen still took possession of the cow, which was the basis for
the tension and the hostility. If the hostility was so
overbearing
one would have expected them to leave the cow behind and come back on
another day to pick up the cow. In the circumstances,
the Second
Plaintiff was in all probability not in possession of a panga.
24.
It further appears that although it was put on
behalf of the policemen that Watchman attacked them, no mention was
made in cross
examination that Watchman was indeed in possession
of a panga. Even if I'm wrong and even if this fact was in fact put
to Watchman,
I would still, on the totality of the evidence, come to
the same conclusion that the Second Plaintiff was probably not armed.
25.
In my view, and more specifically on the
probabilities, I come to the conclusion that the evidence by the
policemen about the attack
on them was exaggerated in the
circumstances, especially their reliance on people armed with pangas,
knives and stones. I accept
that Ramakatsa was at least hit by a
stone and Ialso accept that the First Plaintiff was not prepared to
hand over the correct
cow and that there was some provocation by the
First Plaintiff and other people present. However, I do not accept
that the attack
on the policemen was of such a nature that they were
entitled and justified in the circumstances to fire live ammunition
directly
towards the First and the Second Plaintiffs, in which
process the Third Plaintiff was also injured. Montshiwagae had the
necessary
intent
(do/us)
to
injure the First and Second Plaintiffs and had at least the intention
in the form of
do/us eventualis
to
injure the Third Plaintiff.
26.
In these circumstances, I am of the view that the
assaults on the First, Second and Third Plaintiffs were unlawful and
intentional
and that the Defendant is accordingly liable in delict
towards the First, Second and Third Plaintiffs.
27.
Before I
deal with the second issue that I have to determine, counsel for the
Defendant, under the heading "facts not in dispute"
in his
heads of argument, dealt with two authorities, to wit, Small
v
Smith
[2]
and
President
of the
RSA
v South
African Rugby Football Union.
[3]
The submission made by counsel on behalf of the Defendant is that
counsel for the Plaintiffs did not put enough of his case concerning
every witness of the Defendant so as to give them a fair warning and
an opportunity of explaining the contradictions and the differences
between the evidence of the Plaintiffs' witnesses and that of the
Defendant's witnesses. He further makes the point that if the
evidence goes unchallenged in cross-examination a party is at liberty
afterwards to argue that the witness on behalf of whom the
cross-
examination was conducted should be disbelieved.
28.
I do not put in question the principles
enunciated upon by the different courts, more so what was said by the
Constitutional Court
in the
South African
Football Union
matter. I am, however, of the
view that, although these principles are surely applicable to every
trial matter, it will depend on
the manner in which the proceedings
were conducted. In this matter, for instance, the Plaintiffs could
easily have argued before
the matter went to trial that the Defendant
had the duty to begin. If that was the case, it would have been
expected from counsel
for the Plaintiffs to have put meticulously the
versions on behalf of at least the seven Plaintiffs who would have
given evidence
only after the witnesses for the Defendant have
testified.
29.
In this particular matter, however, the parties
came to an agreement that the Plaintiffs would proceed tendering
their evidence
first at the trial. As it happened, eight of the
Plaintiffs gave evidence as to how they experienced the events of 21
August 2001.
The Defendant's counsel had the opportunity of
cross-examining these witnesses and of consulting with their own
witnesses about
the veracity and the truth of the evidence of the
witnesses called on behalf of the Plaintiffs. Moreover, the
Defendant's witnesses
had the opportunity of sitting in court
listening to the evidence tendered on behalf of the Plaintiffs. I am
of the view that in
such circumstances it was not necessary for
Plaintiffs' counsel to repeat the evidence in cross examination
to the Defendant's
witnesses who testified after the evidence was led
on behalf of the Plaintiffs, as the witnesses of the Defendant should
have been
fully aware of what evidence was tendered as part of
Plaintiffs' case.
30.
In this matter, it was important for the
Defendant's counsel to put its version properly and according to the
principles as enunciated
in Small
v Smith
and
President of the RSA v South African Rugby
Football Union supra.
I am not suggesting at
all that counsel for the Defendant did not put the version of their
witnesses properly to the Plaintiffs'
witnesses.
31.
In the circumstances, I am not prepared to make a
finding that the evidence of Ramakatsa and Montshiwagae should be
accepted merely
on the basis that the versions of the Plaintiffs were
not put in the fullest detail to them whilst the policemen gave their
evidence
at the trial.
32.
I will now deal with the second issue to be
determined. What is important as far as the determination of the
second issue is concerned
is not what was testified as to what
happened on 21 August 2001 but rather what information was available
to Ramagaga when he decided
to arrest the Plaintiffs without a
warrant. In this regard, the contents of the statements of Ramakatsa,
Montshiwagae, Sophie Pele
and Reuben Sekwele are of the utmost
importance.
33.
Before I deal with the content of the statements
that were available to Ramagaga when he made the decision to arrest
the Plaintiffs
without a warrant of arrest, it is important to
consider the relevant legal principles in regard to an arrest without
a warrant
in terms of section 40(1)(b) of the Criminal Procedure Act,
Act No 51 of 1977.
34.
In
Minister of Safety and
Security v Sekhoto and Another
2011 (5) SA
367
(SCA), the Supreme Court of Appeal referred to
Shidiack
v Union Government
1912 AD 642
at 651 - 652
where Innes ACJ stated as follows:
“
Now it is
settled law that where a matter is left to the discretion of the
determination of a public officer, and where his
discretion has been bona fide exercised or his judgment bona fide
expressed, the
court will not interfere with the result. Not being a
juridical functionary no appeal
or
review in the ordinary sense would lie and if he has duly and
honestly applied himself to the question which has been left to
his
discretion it is impossible for a court of law either to make him
change
his mind or to substitute its
conclusion for its own... There are circumstances in which
interference would be possible and right
if for instance such an
officer acted
ma/a
fide
or from ulterior and improper motives, if he had not applied his mind
to the matter or exercised his discretion at all, or
if he had
disregarded the express provisions of a
statute
-
in such cases the
court may grant relief but it would be unable to interfere with
a
due and honest exercise of discretion, even if
it considered the decision inequitable or wrong."
35.
In the
above judgment
(Sekhoto),
it was
further pointed out that a further requirement introduced by the Bill
of Rights would be that the exercise of discretion
must also be
objectively rational.
[4]
36.
In
Nkhambule
v Minister of Law and Order,
[5]
Myburgh J referred
with approval to the remarks by Jones J in
Mabona
and Another v Minister of Law and Order,
[6]
where it was
stated:
'It seems
to me
that
in evaluating his information the reasonable man would bear in mind
that the section authorises drastic police action. It authorises
an
arrest
on the strength
of
a
suspicion and
without the need to swear out
a
warrant i.e. something which
otherwise would be an invasion of private rights and
personal liberty. The reasonable man will therefore analyse and
assess
the quality of
the information at his disposal critically, and will not accept it
lightly without checking it when it can be checked.
It is only after
an examination of this kind that he will allow himself to entertain
a
suspicion which will justify an
arrest.
This is not to
say
that the information at his disposal must be
of sufficiently high quality or cogency to engender him
a
conviction that
a
suspect
is
in
fact guilty. This section requires suspicion but not certainty.
However, the suspicion must be based upon solid grounds. Otherwise,
it will be flighty and arbitrary, and not
a
reasonable suspicion."
37.
Against the backdrop of these legal principles
set out in the above authorities, it is now necessary to evaluate the
critical question
in this case and that is to determine what
evidential material was available to the investigating officer at the
time to establish
whether he could have formed a reasonable suspicion
in the circumstances.
38.
The statements that were available to Ramagaga
are, firstly, the statements of the two policemen who attended at the
scene on 21
August 2001. These statements were to the effect that the
First Plaintiff refused to hand over the cow and, at some stage,
screamed·come
boys" and that a group of boys, between the
number of 20 and 25, came out of the garage armed with knives, pangas
and stones.
They were surrounded and, according to Montshiwagae, an
attempt was made to grab his service pistol and that he fired a
warning
shot but that the group ignored the warning shot. It was then
that more shots were fired.
39.
The statement by Ramakatsa also made mention of
the First Plaintiff having a stone in his hand and his hands in his
pocket. In this
statement, it is also repeated that the First
Plaintiff screamed "come boys". A group of between 20 to 25
people came
out of the garage armed with knives and pangas and
started to throw stones at the policemen.
40.
Both these statements make out at least a
prima
facie
case of public violence. It is true
that the statement of Reuben Sekwele does not make mention of an
attack by people armed with
stones, pangas and knives. According to
his statement, he was told to move away and he then heard the shots.
Pele also stated that
the people who she identified had dangerous
weapons like knives and pangas and that she saw them throwing stones
at the two policemen.
It is also true that she makes mention of a
broken beer bottle which was not mentioned by the other two
witnesses. In my view,
the statements under oath clearly show that a
concerted attack by a group of people took place which was directed
at the policemen.
During this attack, Ramakatsa sustained an injury
to his head. Pele's statement under oath provided the names of the
people who
were part of the group.
41.
The various witnesses, and more particularly
Ramagaga on behalf of the Defendant, were thoroughly cross-examined
about the contradictions
in their evidence and in their statements.
Ramagaga was particularly confronted with whether he paid enough
attention to the contradictions
contained in the statements. I am of
the view that in the circumstances of this matter Ramagaga was placed
in possession of quite
comprehensive statements which described an
attack by a group of people in concert. As
I have
pointed out, there was at least a
prima facie
case made out on these statements and I am of
the opinion that there was no duty on Ramagaga to do much more than
to consider the
statements holistically and then make a decision as
to whether the Plaintiffs should be arrested. In my view, Ramagaga
formed a
reasonable suspicion as required in terms of section
41(1)(b) of the Criminal Procedure Act, Act 51 of 1977. In these
circumstances,
all the claims by the Plaintiffs in respect of an
unlawful arrest must fail.
42.
The First, Second and Third Plaintiffs have
succeeded in their claims in respect of the assault perpetrated upon
them. These plaintiffs,
however, have not succeeded as far as their
action for unlawful arrest is concerned. Approximately 75% of the
actual time spent
in the trial was spent on the issue in relation to
the assault perpetrated on the First, Second and Third Plaintiffs.
Approximately
25% of the time during the hearing of the action was
spent on the question as to whether the arrest of all the plaintiffs
was unlawful.
I consider it appropriate to make an order that the
Defendant pays 50% of the costs of the First, Second and Third
Plaintiffs.
As far as the Fourth, Fifth, Seventh and Ninth Applicants
are concerned, they have not been successful. Itake it into account
that
approximately 25% of the time spent was on the actions based on
unlawful arrests. The Fourth, Fifth, Seventh and Ninth Applicants
should, in my view, pay 30% towards the costs of the Defendant.
43.
In the circumstances, I make the following
orders:
1.
The Defendant is liable towards the First, Second
and Third Plaintiffs in respect of an assault perpetrated by
Montshiwagae;
2.
The Defendant is ordered to pay 60% of the costs
of the First, Second and Third Plaintiffs;
3.
The action based on an unlawful arrest of the
First, Second, Third, Fourth, Fifth, Sixth, Seventh and Ninth
Plaintiffs is dismissed;
4.
The Fourth, Fifth, Sixth, Seventh and Ninth
Plaintiffs are ordered to pay 30% of the costs of the Defendant,
including the costs
of two counsel, jointly and severally, the one to
pay the other to be absolved.
___________________
RAUTENBACH
AJ
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
[1]
Mabaso v Felix 1981 (3) SA 855 (A)
[2]
1954 (3) SA 434 (SWA)
[3]
2000 (1) SA 1 (CC)
[4]
Minister of Safety and Security v Sekhoto and Another supra at para
[39]
[5]
1993 (1) SACR 434 (T)
[6]
1988 (2) SA 654
(SE) at 658 F - H