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[2016] ZAGPPHC 1079
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Munyai v Minister of Police (16266/2013) [2016] ZAGPPHC 1079 (15 December 2016)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG DIVISION,
PRETORIA)
15/12/2016
Case No. 16266/2013
Reportable: No
Of interest to other
judges: No
Revised.
In
the matter between:
TSHIMANGADZO
MUNYAI
Plaintiff
and
MINISTER
OF
POLICE
Defendant
JUDGMENT
GCABASHE
AJ
Introduction
[1] This is a claim for
damages for the unlawful arrest, detention and assault of the
Plaintiff by members of the South African
Police Services ("SAPS")
acting within the course and scope of their employment as police
officers and members of the
SAPS.
[2] In their opening
addresses, counsel for both the Plaintiff and the Defendant advised
the court that by agreement and for purposes
of these proceedings,
liability would be separated from quantum, and that they would
therefore only be addressing the merits of
the Plaintiff's claims.
[3] I agreed to this
understanding that, having heard all the evidence on the merits,
should the claim on quantum proceed to court,
I would make myself
available to deal with that aspect of the trial.
[4] With respect to the
question of the duty to begin, the Defendant has admitted to
arresting the Plaintiff. In the circumstances
the Defendant had the
duty to begin and establish the lawfulness of the arrest and
detention. The Plaintiff bears the onus of proving
the allegations
made in respect of the assault.
Issues
for determination
[5] The main cause of
action arises from the arrest, without a warrant, of the Plaintiff by
members of the SAPS on 10 November 2011.
The Plaintiff was detained
by the SAPS from 10 November 2011 and released approximately 14
months later on or about 15 January
2013 after he was found not
guilty and discharged by the regional court at Sibasa. These are
common cause facts.
[6] The divergence of
facts arises with regard to the underlying causa for the arrest and
detention, and with respect to whether
the Plaintiff was assaulted on
arrest and during the period of detention. The Plaintiff contends
that his arrest and consequent
detention was unlawful. In addition,
he alleges that he was severely assaulted by members of the SAPS on
arrest and during his
detention.
[7] It was apparent from
the parties opening statements that the evidence to be presented
consists, in the main, of material disputes
of facts. The Defendant
maintains that the arrest and detention were lawful in that the
arrest was executed under section 40(1)(b)
and section 42(1)(a) of
the Criminal Procedure Act 51 of 1977 ("the CPA") and the
detention followed on as a consequence
of the gravity of the charges.
It denies the charge of assault.
[8]
It is to these disputed matters that I now turn by:
[8.1] summarising the
pleadings;
[8.2] summarising the
evidence of the witnesses called on behalf of each party,
[8.3] giving a synopsis
of the oral submissions of the parties' closing arguments;
[8.4] noting the issues
in dispute;
[8.5] addressing the
relevant legal prescripts;
[8.6] analyzing the
evidence, giving due consideration to the credibility and reliability
of the witnesses;
[8.7] evaluating the
probabilities of each version;
[8.8] noting the findings
on whether the onus that rests on each party has been discharged.
The
Pleadings
[9] Prior to traversing
the evidence I find it appropriate to make the following observations
regarding the manner in which the
pleadings in this matter were dealt
with. The Plaintiff issued his Summons and Particulars of Claim on 13
March 2013. The essential
allegations concerned his arrest on 10
November 2011 at Tshiungani Village in Limpopo where he alleged he
was arrested unlawfully
without warrant by unknown police officers.
[10] Thereafter he was
detained and incarcerated at Tshamutumbu Police Station for five days
"at the instance of the aforesaid policemen and various other
policemen" "whose names and ranks were unknown to him".
He alleged that these policemen were acting within the course and
scope of their employment as members of the South African Police
Service ("SAPS"). His first claim for the unlawful arrest
and detention was R850 000.
[11] The second claim for
damages was for the wrongful and unlawful he suffered at the hands of
members of the SAPS whom he alleged
hit him with fists, slapped him
with open hands, kicked him and hit him with blackswine all over his
body and under his feet. As
a result, he sustained injuries all over
his body and feet, had to undergo medical treatment and could not
work for 1 year and
six months. His claim under this head of damages
was for R500 000.
[12] The defendant filed
a bare denial in response to the material allegations regarding the
unlawful arrest, detention and assault
of the Plaintiff. On 13
January 2015 the Plaintiff requested further particulars in order to
prepare for trial. These were quite
detailed. A second request was
sent to the Defendant in which the Plaintiff pointed out the
discrepancies between the bare denial
and the content of the case
docket MAS 23/11/2011.
[13] The Defendant's
essential response was that the matters raised were within the
Plaintiff's personal knowledge; constituted
·an abuse of the
court's rules; and in any event were not relevant for the Plaintiff
to prepare for trial. On 7 March 2015
the Plaintiff sought further
particulars, which included a question whether the arrest was denied
and another concerning whether
an identity parade had been held in
respect of the Plaintiff, as well as questions surrounding the R7800
that the Plaintiff alleged
he had on him when arrested.
[14] Other than admitting
to the arrest of the Plaintiff without warrant by members of the
SAPS, for lawful reason on the basis
of a reasonable suspicion that
he had committed a Schedule 1 offence being that of robbery, the
material questions raised in the
request for further particulars were
ignored. On 18 May 2015 the Defendant filed an amended plea which
took the matter no further.
[15] On 13 August 2015
the Plaintiff amended its particulars of claim by substantiating the
version it relied on. He referred to
cash he had in his pocket. He
described his arrest and assault in great detail. The allegation that
there were no objective grounds
for arresting the Plaintiff were made
in the amendment, as was an allegation that the arresting officers
exercised their discretion
to arrest and detain the Plaintiff
irrationally, alternatively arbitrarily, further alternatively
unreasonably or with ulterior
motives, and
inter alia
in
breach of their constitutional rights under section 7 of the
Constitution and in violation of a number of the Plaintiff's
constitutional
rights. The damages claim was increased to R1 370 000.
[16] A further amendment
was filed by the Plaintiff on 30 March 2016. The most material
amendment was in relation to the quantum
of damages claimed, which
now escalated to R6 327 800.
Summary
of the evidence
The
Defendant's case
[17] The Defendant called
five witnesses, one of whom was a member of the community, a Mr.
Lavhelesheni Shandukani (Mr. Shandukani),
and four being members of
the SAPS.
The evidence of Mr
Shandukani
[18] Mr. Shandukani, who
was one of the primary witnesses for the defence, gave his evidence
in Tshivenda and was assisted by a
court interpreter. He resides at
Mabvete village in Tshiugani. Though he described himself as a member
of the community, it transpired
during the presentation of his
testimony that he is also a police reservist.
[19] He testified that on
the morning of 10 November 2011 the owner of a spaza shop in Mabvete
village where he lived, phoned him
to say that he should urgently go
to the spaza shop as a robbery had taken place there. He testified
that he lives approximately
50m from the spaza shop.
[20] On arrival at the
shop the shop keeper, an Indian lady, told him that while she had
gone to the bathroom, two men came into
the spaza shop. His younger
sister, one Folofilo was at the shop at the time of the robbery as
she had gone there to make some
purchases. He testified that he was
told that the two men had stolen cold drink and bread. His confirmed,
however was that on his
arrival at the spaza shop the two men were
nowhere in sight.
[21] People along the
road told him which direction the two suspects had run in. He and
others pursued the two suspects who, he
testified, ran into a forest
and up a hill. One suspect produced a firearm. The group then stopped
and waited for other members
of the community to join them before
resuming their pursuit of the two suspects. At some point visibility
was poor, but after a
while the group was able to pick up the tracks
of th13 suspects. Later more members of the community joined in the
chase, including
a man who drove an Isuzu van. The pursuit of the
suspect lasted approximately 3 to 4 hours.
[22] While they were
chasing the suspects Mr. Shandukani noted the following. The two
suspects split up and ran in different directions.
The group
continued to pursue the suspect who had a firearm. Mr Shandukani also
noticed the suspect stop and pass water, take his
shirt off and hang
it on a tree, then further on, take his shoes off and walk bare foot.
[23] He further testified
that at some point the suspect picked up some stones and started
throwing them at the group that was pursuing
him. At that point one
of the members of the group shouted at the suspect and threatened to
kill him if he threw stones at them.
Given that it was a hot day and
the suspect no longer had shoes on, and was having difficulty running
over the rocks and the hot
sand, the pursuing group was able to catch
up with him. The police managed to join the group at about this point
in time.
[24] Mr Shandukani
observed the injuries that the suspect had sustained under his feet.
The man with the Isuzu van was on hand to
assist them take the
suspect to the clinic. It was only after the suspect had been taken
to the clinic that the SAPS dog unit and
a SAPS helicopter arrived on
the scene. The members of the community and the police then proceeded
to search for the second suspect
who was ultimately found hiding in a
cave. When he eventually emerged from the cave, the second suspect
produced 2 cellular phones
and some money that was inside the sling
bag that he was carrying. Inside the bag there were some black cable
ties as well. This
suspect was taken down the hill and put into a
police van.
[25] On being questioned
Mr Shandukani identified the Plaintiff by name and as the suspect who
they had pursued through the forest.
Though he testified that the
Plaintiff did not readily submit himself to the group that had
pursued him, the witness denied that
the Plaintiff was assaulted. He
also confirmed that it was not the first time that he was seeing the
Plaintiff as the latter had
been in the area the previous evening in
the company of a certain un-named lady, and had bought some scones
and chips.
[26] He also testified
that the items stolen from the spaza shop included money, airtime,
and cellular phones belonging to the shop
keeper. His further
evidence was that the two suspects had threatened those in the spaza
shop with a firearm.
[27] Under cross
examination Mr Shandukani confirmed that he did not witness the
criminal activity at the spaza shop, but had heard
of the events that
occurred from others, including his sister. He also confirmed that as
they pursued the two suspects, they dropped
the airtime vouchers,
bread and cold drink. His answer to a question about whether they
searched the Plaintiff when they apprehended
and whether the
Plaintiff had a firearm on him was in the affirmative.
[28] When asked what type
of firearm this was, he stated that he could not describe it because
of the distance of about 150 meters
between himself and the suspect.
He further confirmed that the group of community members apprehended
the Plaintiff and that it
was only after they had apprehended him
that he was handed over to the police. He denied being in court when
the Plaintiff was
acquitted of all charges.
[29]
When the Plaintiff's version of the events that occurred on 10
November 2011 was put to the witness, he denied that there was
any
truth in the Plaintiff's version. He even denied events that related
to the assault of the Plaintiff at the police station,
including the
statement that the Plaintiff was forced to sign a confession. It was
only in relation to the first appearance of
the Plaintiff in court
after being detained for 5 days that the witness stated that he could
not testify to what happened after
the arrest of the Plaintiff.
[30] In answer to the
court's questions he confirmed that the robbery happened at
approximately 09h00 - 10h00, and that the Plaintiff
was apprehended
between 13h00 and 14h00. He testified that the Plaintiff ran with his
shoes on for the first two hours, then bare
foot for the last hour.
He also confirmed that he was there when the Plaintiff was taken to
the clinic where they left him with
the police.
The
evidence of Constable Ramphabana
[31] The second witness
for the defence was Constable Azwindwi Matthews Ramphabana
("Constable Ramphabana), a policeman of
nine years standing.
[32] This witnesses
evidence was that he received a call from the Tshamuthumbu Police
Station advising him that a robbery had been
committed at Mabvete
village at Tshiungani and that back up was required.
[33] He and a colleague
travelled to where the robbery was said to have taken place and found
Warrant Officer Nembayi there. He
then received a call that one of
the suspects was wearing black clothes and had nm in the direction of
the forest. It took him
5 minutes to get to the point where the
people chasing the suspect were pointed out to him.
[34] He parked the
vehicle and followed the members of the community on foot. He
testified that they chased the Plaintiff for 2
hours. He was behind
the front runners. The witness testified that the Plaintiff was
ultimately apprehended at an open space.
[35] The witnesses'
description of the Plaintiff was that he was wearing black clothes
and fitted the description of the person
who had been mentioned
earlier. He further testified that as the group that had been
pursuing the Plaintiff attempted to apprehend
the Plaintiff he told
them not to as he was close enough to do so himself.
[36] He noticed that the
Plaintiff could not get up. On enquiring he was told that the suspect
was injured under his feet. He then
asked the community members to
give him time with the Plaintiff. He introduced himself to the
Plaintiff and informed him that he
was arresting him for a robbery
committed at Mabvete village at Tshiungani. The Plaintiff then told
him that he was not alone when
he committed the robbery. He also
asked not to be handcuffed as he was prepared to submit to his
arrest.
[37] His further evidence
was that one of the community members opted to contact an
acquaintance to bring a motor vehicle. After
some time, an Isuzu
motor vehicle pulled up and the Plaintiff was placed in it and taken
to the clinic for medical attention. From
the clinic the Plaintiff
was taken to Tshamuthumbu Police Station.
[38] The injuries that
this witness observed on the Plaintiff were the injuries under his
feet and scratch marks on his arms which
the witness assumed he
sustained as he ran past some thorn trees.
[39] In identifying the
Plaintiff as the person who had participated in the robbery at the
spaza shop, this witness stated that
the description of the clothes
he was wearing fitted the description that was given to him
telephonically. He further stated that
the persons who had pursued
the Plaintiff from the point where the robbery occurred identified
him as the person they had been
pursuing.
[40] The witness denied
that the Plaintiff was assaulted by the community members who pursued
him. The Plaintiff had his identity
book on him and a photograph of
the second suspect. On being asked if any money was found on the
Plaintiff the answer was a firm
no. He once again described the
clothes worn by the Plaintiff as a black long sleeved shirt with
buttons and worn out long black
pants. When he first saw the
Plaintiff he was approximately 100 metres from him and between 2 to 3
km from the spaza shop at Mabvete
village. He arrested the Plaintiff
approximately 2 hours after he first spotted him.
[41] The witness further
testified that he did not see the Plaintiff stop to take his shoes
off nor did he see him pass water. He
also did not see the Plaintiff
throw anything away, and certainly not any drinks, toy or any other
thing.
[42] The witness denied
the version that the Plaintiffs counsel put to him concerning the
events that took place on the day the
Plaintiff was arrested.
The
evidence of Warrant Officer Dauada
[43] The next witness for
the Defence was the Acting Commander of Tshamuthumbu Police Station,
Mashudu Michael Dagada. He testified
that he received a telephone
call bi3tween 09h00 and 11h00 from the owner of the spaza shop at
Mabvete village who reported that
a robbery had been committed. He
despatched police officers to the scene of the crime. He also went to
the scene of the crime and
summoned back up in the form of the dog
unit and a helicopter because the community members told him that the
suspects had run
into the forest and up the mountain.
[44] He was later advised
of the arrest of the Plaintiff, and told that the Plaintiff had been
injured and taken to the clinic.
On his arrival at the clinic he
found the nurses bandaging the Plaintiff under his feet. He also
noticed that the Plaintiff had
scratch marks which he assumed he got
from running through the bushes.
[45] He informed the
Plaintiff that he was under arrest for a robbery at Mabvete village.
He informed the Plaintiff of his rights
and thereafter took him to
Tshamuthumbu Police Station. He confirmed that the Plaintiff went
back to hospital, but could not remember
the date. Finally, he
confirmed that the arrest was lawful and that the Plaintiff was not
assaulted by the police.
[46] Under cross
examination the witness could not explain why there were no records
of the first visit to the clinic by the Plaintiff
nor could he
explain why no entry about that visit was made in the investigation
officer's diary. He confirmed that he was aware
that the
investigating officer had taken the Plaintiff to the forest where a
firearm was recovered, but stated that he did not
see the firearm.
[47] The Plaintiff's
version of his arrest by the roadside while he was waiting for
transport home was put to the witness, who denied
that this version
was true.
[48] In replying to
questions put by the court the witness explained that he did not go
to the spaza shop after receiving the report
about the robbery, nor
did he meet the shop owner or shop keeper. He stated that he was
aware that money was recovered from the
second suspect, but was not
sure about the quantum, or whether anything else was taken from the
spaza shop.
[49] The witness
confirmed to the court that he collected the Plaintiff from the
clinic and that the nurse asked that the Plaintiff
be brought back
for further treatment. He could not recall who he gave this latter
instruction regarding a follow up visit to the
clinic to.
[50] When asked by the
Plaintiff's counsel why there was no reference in the investigation
diary to his presence at the clinic his
response was that such
information was not what the investigating officer would want to
know.
The
evidence of Constable Netsamba
[51] The next witness for
the defence was Dzihuluwani Ludwig Netsamba a police officer
stationed at Tshamutumbu Police Station.
He confirmed that he was on
duty when a report about the robbery was received. He interviewed the
shop keeper who told him that
two men, one holding a small firearm,
had demanded that she open the enclosure into the shop and taken
money, two cellular telephones,
two loaves of bread and some cold
drink. Thereafter they ran away in the direction of the forest.
[52] He took a statement
from the shop keeper, who could not give a description of which of
the suspects held the firearm. It transpired
that the shop keeper is
the wife to the shop owner.
[53] The witness
explained that he noticed the injuries of the Plaintiff when he
arrived at the police station. The Plaintiff was
handed over to him
by Warrant Officer Dagada. The injuries he observed were that the
skin under the Plaintiff's feet had been peeled
off. When he asked
the Plaintiff how he sustained these injuries the Plaintiff said he
got them from walking in the nearby rocky
area.
[54] The witness denied
that the Plaintiff had been assaulted or humiliated by the police. He
confirmed that a Schedule 1 offence
had been committed, hence the
lawfulness of the arrest.
[55] Under cross
examination the witness confirmed that he did not depose to an
affidavit on 10 November 2011, and that this was
the first time he
was explaining his involvement in this matter. The only statement he
took on 10 November 2011 was that of the
complainant shop keeper.
[56] On answering
questions of clarity put by the court, the witness stated that he did
not see how the Plaintiff's feet were injured
as he had bandages on
his feet.
The
evidence of Warrant Officer Gumbu
[57] The witness that
followed was Naledzali Russia Gumbu, the investigating officer. He
heard about the robbery and while attempting
to give assistance, and
was advised that the Plaintiff had been arrested and taken to the
clinic. He found the Plaintiff at the
clinic where they were putting
bandages on his feet. He left him at the clinic with Warrant Officer
Dagada and went to assist in
the apprehension of the second suspect.
[58] The witness
testified that it was only on 11 November 2011 that he realised that
a firearm had been used in the commission
of the robbery. On 12
November 2011 he too; the Plaintiff out for him to point out the
weapon that was used in the commission of
the robbery. They found the
pistol that was used in the commission of the robbery in the forest
inside a baobab tree and sent it
for ballistic tests. On their return
they went past the clinic for the Plaintiffs bandages to be changed,
as this was a daily routine.
[59] The matter was
referred to court. Bail was denied because the second suspect was a
Zimbabwean national. He confirmed that he
had asked the Plaintiff if
anyone had assaulted him and was told no one had. At that point he
explained the Plaintiff's rights
to him and the purpose of the
interview. He told him he could engage a private legal representative
or have one appointed by the
State. The Plaintiff elected to give him
a statement. It was free and voluntary.
[60] When the docket came
back from court on 14 November 2011, there were questions in it posed
by the Public Prosecutor, and an
instruction that the Plaintiff must
be taken to the hospital. Pertinent questions raised by the Public
Prosecutor in his notes
to the investigating officer were:
[62.1] that the accused's
addresses should be verified;
[62.2] whether anything
was recovered;
[62.3] whether the
accused had been identified by the complainant after they had been
apprehended; and
[62.4] what happened to
the firearm that was alleged to have been used.
[63] The Public
Prosecutor also made a note in the file that the Plaintiff was to
attend the hospital on a daily basis, and made
it a point to check
every morning that this instruction had been executed. The witness
also testified that he recalled that the
Plaintiff was hospitalised
at Musina hospital at some point. When asked why the Plaintiff was
hospitalised, he replied that it
was for further treatment for the
burns he sustained on his feet on day of commission of the offence.
[64] The witness was also
asked about the firearm that was taken for ballistic tests. The entry
in the investigation diary indicated
that the firearm was a toy gun.
His testimony is this regard was that any item resembling a firearm
is taken for ballistic tests
before any conclusion is reached on what
exactly it might be.
[65] Under cross
examination, and with reference to the documentary evidence by way of
the investigation diary, the witness conceded
that the firearm was
only recovered on 4 December 2011. When it was put to him that the
Plaintiff never took him to the place where
it was recovered he
responded that he did book the Plaintiff out, even though there was
no entry of this in the investigation diary.
[66] Despite intense
questioning on the point, the witness was not able to point to an
entry in the investigation diary where an
entry was made that the
Plaintiff showed him where the firearm was, where after it was
recovered from that location. Counsel then
put it to the witness that
he would argue that no firearm was found and that someone simply
bought a toy firearm which was introduced
as the firearm used in the
robbery.
[67] The discrepancy in
the entries made on 10 November 2011 and 14 November 2011 was
interrogated at length. The materiality of
these discrepancies turned
on the fact that the Plaintiff's version, as put to this witness, was
that he was unlawfully arrested,
detained and assaulted on 10
November 2011 and only taken to court on 14 November 2011. The
warning statement he made was coerced
as a result of those assaults.
That statement that was put up as a confession was as a result of
such assaults. The witness categorically
denied the veracity of this
version.
The Plaintiff's case
[68] The Plaintiff was
the next to testify. His version was that he was standing at the side
of a cross road waiting for transport
to take him home. He testified
that he was wearing a short sleeved UZZI branded t-shirt that was
grey in colour, and a denim trouser.
He had a bag with him. In this
bag he had an amount of R7800 which he had withdrawn over time and
which he intended using at home
for various tasks. As he stood by the
roadside a Quantum mini-bus with approximately 7 police officers
appeared and stop at the
cross road.
[69] There was a male
police officer wearing a Bafana Bafana branded soccer team jersey who
asked him where he was from and where
he was going to. A lady police
officer wearing pink trousers and a black top started searching his
bag. She found the money in
his bag and asked where he had obtained
this money as there were people who reported that an offence had been
committed. The suspects
had run in the direction of the cross roads.
The male policeman mentioned the letters TRT and said they worked in
the field and
know how to treat a criminal.
[70] The Plaintiff denied
all knowledge of the robbery. The lady policeman then said that the
money he had looked like fake money.
The Plaintiff offered to bring
her his bank statement as proof of the source of the money. In
response the! police grabbed him
and sprayed a chemical over his
eyes. He couldn't see. Then a policeman from the Quantum
motor-vehicle said
"you are going to produce the firearm you
shot with before you ran away".
He was dragged into the bush
and assaulted.
[71]
The Plaintiff testified that thereafter his whole body was swollen.
He was assaulted, tortured and handcuffed. He lost consciousness
and
regained his senses at a clinic where his wounds were attended to.
Warrant Officer Dakada took him to the police station. At
the police
station police officers Dakada, Robert Nemarara, Bongani Nemarare and
Azwindwi Matthews Hamphabana took turns in assaulting
him. His hands
were cuffed behind his back, he testified. One way in which he was
assaulted was that his feet were placed on a
moving conveyer belt.
The friction between his feet and the moving belt burnt and bruised
his feet. At some point his head was
put into a toilet bowl and the
toilet was flushed. Eventually an officer by the name of Malusi
pulled him into a cell in an effort
to stop the assaults.
[72] The police told him
they want the firearm that he used during the robbery. He denied any
knowledge of the robbery or firearm.
Warrant Officer Gumbu brought
some documents for him to sign. He explained that these documents
related to his rights, and to the
toiletries etc. that he was
entitled to.
[73] From the 10 to 13
November he was not taken to the clinic. For three months he could
hardly walk. When he was taken to the
Muthari Magistrate's court he
could still not walk or sit on a bench. He further testified that he
was afraid to tell the Magistrate
that he had been tortured as the
police had warned him against doing so. He also refrained from
telling two legal aid attorneys
the truth when they asked about his
scratches as he had been threatened by the police should he divulge
anything of their treatment
of him.
[74] The Magistrate
issued an order that he be taken to a hospital for treatment. He
spent approximately 7 to 8 days in hospital.
When he returned to
court the matter was referred to the regional court in Sibasa. When
he appeared at the Sibasa Magistrate's
Court he asked Magistrate
Coetzee to allow him to go and get his bank statement so as to
reconcile that statement with the money
he had on him on arrest. The
Magistrate instead said he would send a police officer to take a
statement if the Plaintiff wished
to charge the Minister of Police.
[75] On the day he was
acquitted, i.e. on 14 January 2013, the complainant was in court and
testified that he was not the person
who robbed the spaza store as
both suspects were much shorter than he was. When asked by the
presiding officer when he had seen
the complainant, he told the court
that this was the first time he had seen her. He was acquitted on the
same day.
[76] He confirmed that
from the time of his arrest to the time of his release, he had been
detained for approximately 14 months.
[77] Under cross
examination he was asked to estimate how far the cross roads where he
stood was from Mabvete village where the
police said a robbery had
taken place. He estimated about 30 to 35 km. On confirming that the
persons in the Quantum vehicle were
policemen, he stated that the
vehicle had police marking on it. Also the police in the vehicle had
rifles. None was in uniform.
[78] He further testified
that it was only after he was asked to sign the documents that he was
told explained his constitutional
rights that he was informed that he
was under arrest. Warrant Officer Gumbu asked him to sign these
papers.
[79] The Plaintiff denied
that he had robbed the spaza shop at Mabvete village. He explained
that he worked at Lephalale, formerly
Naboomspruit, at Inferior Golf
Course, and used the route with the cross roads all the time when on
his way home to his village,
Malale village. That route goes through
Mabvete village. He denied knowing where the spaza shop in Mabvete
village was though.
[80] The Plaintiff
explained that the R7800 he had on him was drawn from his savings. He
confirmed that the R7800 was in a wallet
in his Nike branded bag. He
also clarified that the police who assaulted him were not the ones
who took him to the police station
and detained him. He did not see
them at the clinic either. What he did recall was that one of the
policemen from the Quantum vehicle
assaulted him. He was wearing a
Bafana team jersey. He confirmed that he was further assaulted at the
police station.
[81] The Defendant's
version was put to the Plaintiff who denied robbing the spaza shop.
He also denied all knowledge of the toy
gun that was sent for
ballistics testing. He confirmed that the was assaulted severely by
the police.
[82] On being questioned
by the Court the Plaintiff confirmed that he appeared in court on 5
December 2011, 15 January 2012, in
February and thereafter on a
monthly basis until the matter was referred to the Regional Court.
[83] He could not recall
which clinic he was taken to, but confirmed that he was admitted at
the Musina hospital.
Submissions
of the parties
[84] In closing arguments
the Defendant relied on section 40(1)(b) read with Schedule 1 of the
CPA in justification of the arrest
and detention. Counsel put up the
testimony of the Defence witnesses, read with the warning statement
made by the Plaintiff, as
evidence supporting all allegations
regardinJ the commission of the offence. Counsel further argued that
the injuries sustained
by the Plaintiff were as a result of running
over hot sand and stones over a protracted period of time.
[85] Counsel for the
Plaintiff submitted that the Defendant had failed to put the version
of its main witnesses to the Plaintiff.
In addition, counsel asked
the court to draw an adverse inference from the fact that the person
who made the first report about
the robbery was not called to
complete the chain of events relating to the cause of the arrest.
[86] Counsel made
submissions on the contradictions and discrepancies in the Defence
witnesses evidence. He pointed to the weak
evidence relating to the
toy gun. He asked this court to make an order that the Defendant pay
the proven damages of the Plaintiff
with costs.
[87] In its reply the
Defendant submitted that the testimony of the Plaintiff was not
credible, in that:
[87.1] he prevaricated
about whether he had in fact signed the warning statement;
[87.2] his testimony
regarding the assault in the bushes was unclear;
[87.3] he failed to
report the other injuries he sustained in addition to the burn
wounds, and
[87.4] his responses were
generally evasive.
[88] Counsel also took
issues with what he considered to be the change of evidence between
what was pleaded and what was testified
to in court. The discrepancy
between the testimony concerning the arrest on 10 November 2011 as
pleaded and that of being arrested
three days after being released
from the local clinic was placed in issue. The Defendant also took
issue with the fact that the
description of the police in the Quantum
ranged from 4 to 7 police officers during testimony, and the location
of the R7800 changed
from being in his pocket (as recorded in the
warning statement) to being in a wallet in the Nike bag, (as
testified in court).
[89] With regard to the
absence of crucial witnesses from the scene of the crime, the
Defendant argued that in its view the witnesses
called were material
and persuasive witnesses. The testimony of Warrant Officer Gumbu was
particularly relied upon as being supported
of the material facts as
established by the finding of the firearm, the warning statement, the
Plaintiffs attendance at the clinic
on 10 November 2011 and his
hospitalisation from 15 November 2011.
[90] Finally, Counsel for
the Defendant submitted that the place where the Plaintiff was
arrested on his own version is consistent
with the testimony that the
suspects ran in the direction where the Plaintiff was arrested.
The
issues in dispute
[91] This court has heard
all the evidence. It is faced with two mutually destructive versions
of the events that took place on
10 November 2011. It is clear from a
review of the testimony of the witnesses that:
[91.1] the versions of
the Plaintiff and Defendant are irreconcilable;
[91.2] the Plaintiff
alleges that he was arrested, detained and assaulted without lawful
by police officers acting in the course
and scope of their employment
with the Defendant, and that there was no lawful justification for
their actions, as evidenced by
his acquittal on the criminal charges
pursued.
[91.3] the Plaintiff also
alleges that during his arrest his money in the amount of R7800 was
taken by the police who arrested him.
[91.4] the Defendant's
version is that its officers acted in accordance with the statutory
powers accorded them in section 40 and
42 of the CPA read with
Schedule 1 thereof in that a robbery was committed at Mabvete
village, which incident was reported to them
and to which they
responded promptly by pursuing the suspects and ultimately arresting
both suspects and retrieving the weapon
that was suspected to have
been used in the robbery.
[91.5] The assault of the
Plaintiff is specifically denied by the Defendant whose version is
that the injuries sustained by the
Plaintiff were as a result of him
taking off his shoes and running barefoot on the hot rocks and sand
in the forest.
[91.6] there is a
material dispute with regard to whether the Plaintiff assisted the
police in the recovery of the firearm that
was allegedly found in a
baobab tree and then sent for ballistic testing.
[92]
The respective versions of the Plaintiff and Defendant are completely
irreconcilable. This court must therefore make a careful
assessment
of the credibility of the various witnesses, their reliability, and
the probabilities of their respective versions.
[93] The court in
SFW
Group Ltd & Another v Martell Et Cie & Others
2003 (1) SA
11
(SCA) had the following to say with respect to how to approach two
irreconcilable versions and circumstances where a number of
peripheral areas of dispute may have a bearing on the probabilities:
"
To come to
a
conclusion
on the disputed issues a court must make findings on (a) the
credibility of the various factual witnesses; (b) their
reliability;
(c) the probabilities. As (a), the court's finding on the credibility
of
a
particular
witness will depend on its impression about the veracity of the
witness. That is turn will depend on a variety of subsidiary
factors,
not necessarily in order of importance, such as (i) the witness'
candour
and demeanour in the witness-box, (ii) his bias, latent and blatant,
(iii) internal contradictions in his evidence,. (iv)
external
contradictions with what was pleaded or put on his beha/J or with
established fact or with his own extracurial statements
or actions,
(v) the probability or improbability of particular aspects of his
version, (vi) the calibre and cogency of his pE1rformance
compared to
that of other witnesses testifying about the same incident or
events. As to (b),
a
witness'
reliability
will depend, apart from the factors mentioned under
(a)(ii),
(iv) and (v) above, on (i) the opportunities he had to
experience
or observe the event in question and (ii) the quality, integrity and
independence of his recall thereof. As to (c), this
necessitates an
analysis and evaluation of the probability or improbability of each
party's version on each of the disputed issues.
In the light of its
assessment of (a), (b), and (c) the court will then, as
a
final
step, determine whether the party burdened with the onus of proof has
succeeded in discharging it. The hard case, which will
doubtless be
the rare one, occurs when
a
court's
credibility findings compel it in one direction and its
evaluation
of the general probabilities in another. The more convincing the
former, the less convincing will be the latter. But
when all factors
are equipoised probabilities prevail."
[1]
[94] The approach that
this court takes in the analysis of the evidence tendered by
witnesses for the Defence and the Plaintiff
is aligned to the
approach suggested by the court in the
SFW Group Ltd & Another
v Martell Et Cie & Others
matter.
[95] However, prior to
delving into an in-depth analysis of that evidence, it is apposite to
briefly sketch the provisions of the
CPA that the Defendant relies
on, which prescripts give contest to the conduct of the police
officers who were involved in the
arrest and detention and alleged
assault of the Plaintiff.
Arrest
and detention as provided for in the Constitution and in the CPA
[96] Section 205 (3) of
the Constitution provides that the objects of the police are to
"prevent, combat and investigate crime, to maintain public
order, to protect and secure the inhabitants of the Republic and
their property, and to uphold and enforce the law".
[97] The arrest of a
suspect without a warrant is intended to assist the police in
bringing an offender to justice by investigating
the offence that has
been reported to them whilst simultaneously protecting the interests
of the community, bearing in mind the
infringement that an arrest
visits on the rights of an individual. Arrest is therefore a means to
an end and not an end in itself.
[98] The basic principles
that underlie the object of an arrest without warrant include the
establishment of the jurisdictional
fact that a reasonable suspicion
had been formed by the arresting officer that the suspect had
committed an offence, and in this
instance, a Schedule 1 offence.
[99] Provision is made in
section 39, and 40 of the CPA for forcibly confining the body of a
suspect should this be the most effective
and appropriate manner of
effecting an arrest. The courts have specifically noted that the
effective investigation and prevention
of crime is as important as
the right to liberty.
[100] A fair balance must
therefore be struck in the manner in which the police use their
discretion in making the judgment call
to physically arrest a suspect
by confining his body and detaining him as opposed to permitting him
to retain his liberty on the
understanding that he will co
operate with their investigations and present himself to them as and
when required.
[101] As stated in
Minister of Safety & Securi1ty v Van Niekerk
2008 (1) SACR
56
(CC), Standing Order (G) dealing with arrest and the treatment of
an arrested person
"makes it clear that arrest is
a
drastic procedure which should not be used if there are other
effective means of ensuring that an alleged offender could be brought
to court' .
[102] It is a requirement
of a fair process that the police approach the arrest and subsequent
detention of a suspect with an open
mind and within the parameters
required of section 12(1) of the Constitution which provides that:
"(1)
Everyone has the right to freedom and security of the person which
includes the right
-
(a)
Not to be deprived of freedom arbitrarily or
without just cause;
(b)
Not to be detained without trial;
(c)
To be free from all forms of violence from
either public or private sources;
(d)
Not to be tortured in any way; and
(e)
Not to be treated or punished in
a
cruel, inhuman or degrading way".
[103] In the interests of
totality, section 12(2) of the Constitution provides for the right to
bodily and psychological integrity,
which is a right that is
implicated in the Plaintiff's claim before this Court. It is apposite
to mention that sections 7, 8, 9,
10 have equal bearing and
application in the manner in which the police and this Court
approaches issues of the liberty of a suspect
and the protections
afforded by the Constitution.
[104] Of particular
significance to these proceedings is section 35 of the Constitution
in its totality, as it firmly establishes
a legal framework within
wl1ich an arrest person, a detained person and an accused person
arraigned for trial must be dealt with.
[105] Section 16 of the
Constitution, in providing for the limitation of the rights in the
Bill of Rights, prescribes that such
rights can only be
"limited
in terms of
a
law of general application to the extent that
the limitation is reasonable and justifiable in an open and
democratic society based
on human dignity, equality and freedom",
and taking into account the factors set out in section 36(1)(a)
to (e) thereof. I do not find n necessary to enumerate these factors
here.
[106] Related
constitutional rights that have tangential relevance to these
proceedings include the right to privacy, the right
to freedom of
movement and the right no to be deprived of property except in terms
of a law of general application, which includes
the prohibition
against the arbitrary deprivation of property. As indicated, these
more tangential rights are probably of greater
relevance to part two
of these proceedings should it become necessary to place the issue of
quantum on this Court's roll.
[107] In concluding this
aspect of my judgment, it is apposite to review the provisions of
section 40(1)(b) read with Schedule 1
of the CPA and section 42(1)
which the Defendant relies on. Section 40(1)(a) and (b) provide that
"(a)
a peace officer may without warrant arrest any person who commits or
attempts to commit any offence in his presence"
or
"(b) whom he
reasonably suspects of having committed an offence referred to in
Schedule 1, other than the offence of escaping
from lawful custody".
[108] Section 42(1)(a) on
the other hand permits the arrest by a private individual of a person
without warrant if such person:
(a) "...commits
or attempts to commit in his presence, or whom he reasonably suspects
of having committed an offence referred
to in Schedule 1."
[109] Section 42(2)
provides that any
"private person who may without warrant
arrest any person under subsection (1)(a) may forthwith pursue that
person, and any
other private person to whom the purpose of the
pursuit has been made known, may join and assist therein."
An
analysis of the testimony of the witnesses
[110] In summary, the
first time that the Defendant's version was put on record was when
the trial began. Despite this, it is the
Defendant that complained
that material parts of the Plaintiffs evidence had not been placed on
record. The court does not agree
with the assessment of the
Defendant, as will become evident in the analysis of the evidence
tendered by the various witnesses.
[111] The first witness
for the Defence was Mr Shandukani. It turned out that the did not
witness the robbery at the spaza shop.
He was not in the vicinity of
the spaza shop when the robbery took place. He was not called by the
shop keeper but by her husband,
to whom the robbery was reported by
the shop keeper, and who was ostensibly not on the premises at the
time. Mr Shandukani lived
about 50 meters away from the shop. He was
told of the material events that occurred when he arrived at the
shop. His recollection
of the material events differs from the
testimony of Constable Netsamba, who made no reference to the shop
keeper being robbed
when she went to the bathroom. He instead
referred to the shop keeper being aske!d to open the enclosure into
the spaza shop
[112] Mr Shandukani was a
member of the Police Forum. The material part of his evidence related
to the pursuit of the after the
suspects who had been described to
him on the basis of hearsay evidence. They chased the Plaintiff for 3
to 4 hours. He referred
to the Plaintiff being in possession of a
firearm which he could not describe as he was about 150 meters away
from the suspect
when he noticed the firearm.
[113]
He referred to the Plaintiff:
[113.1] stopping to ask
for some water at a village;
[113.2] taking his shirt,
and later his shoes off, yet no shirt or shoes were collected as
evidence of the items collected during
or after the chase;
[113.3] as having thrown
stones at the group that was pursuing him;
[113.4] as having
resisted arrest.
[114] Mr Shandukani gave
the court the impression that he was tailoring his evidence to suit
the version that the Defendant was
putting up. No other member of the
community group that pursued the suspects was called to give
evidence. His hearsay evidence
on what happened during the robbery is
not only hearsay, it is contradictory.
[115] There is some
uncertainty in the role of the second Defence witness, Constable
Ramphabana whose evidence concerning the arrest
of the Plaintiff is
different to that of Mr Shandukani. Mr Shandukani gave the impression
that the community group apprehended
the Plaintiff before Constable
Ramphabana arrived. Finally, he denied being in court when the
Plaintiff was acquitted, which denial
was challenged.
[116] The evidence of
Constable Ramphabana was unclear with respect to the description of
the suspects that he was pursuing. He
persisted in asserting that on
arrest, the Plaintiff was wearing a black shirt, as described to him,
yet Mr. Shandukani told the
court that the Plaintiff took off his
black shirt and shoes. Constable Ramphabana said and ostensibly did
nothing about the Plaintiff's
shoes, despite being a police man of 9
years standing. He said that he noticed that the Plaintiff's shirt
was torn as a result
of running through the bushes. He testified that
they were in the forest for 2 hours, chasing after the Plaintiff.
[117] The incident
regarding calling for assistance from the Isuzu owner does not tally
with the evidence of Mr Shandukani. The
impression given by Constable
Ramphabana was that the owner of the Isuzu van was only summonsed
after he arrested the Plaintiff.
The testimony of Mr Shandukani was
that the Isuzu van owner was summoned before the police arrived.
[118] The court has
difficulties believing the version put up by these two witnesses for
the Defendant. They did not appear to be
credible witnesses, but
rather witnesses who were repeating facts that they themselves were
uncertain about. Where there were gaps,
they simply filled the gaps.
[119] A 2 to 3 hour chase
on foot, as testified by these two witnesses, sounds incredulous to
this Court. The description of a firearm
by Mr Shandukani from the
distance of 150 meters is dubious. His testimony on what was stolen
during the robbery is hearsay evidence.
The taking off of the shoes
and shirt are equally far-fetched, particularly as the result could
only have been that the Plaintiff
would be the worse for wear if he
took the shoes off in hot sandy and rocky terrain. No records of the
taking of the Plaintiff
to the clinic immediately after his
apprehension were put up, despite the testimony that the Plaintiff
was taken to the clinic
in the Isuzu van. The owner of the Isuzu van
was not asked to confirm any of the events of the day.
[120] One of the most
concerning aspects of Mr Shandukani's evidence was his categorical
denial of the version put up by the Plaintiff,
even on matters, such
as the alleged assault by the police, that he would have had no
knowledge of. Constable Ramphabana on the
other hand kept on
referring to one suspect as opposed to two, giving the impression
that, on his version, he joined the community
group at a very late
stage, despite stating that it took him five minutes to catch sight
the community group that was pursuing
"the suspecf' .
He
confirmed that no money was found on the Plaintiff. Unlike Mr
Shandukani, he made no reference to the Plaintiff being in possession
of a firearm.
[121] These two witnesses
were not candid with the court. As persons associated with the
police, indirectly and directly, their
bias towards the SAPS is
apparent in their testimony. This court has no hesitation in
rejecting the version put up by these two
witnesses insofar as thHir
evidence relates to the pursuit of the Plaintiff. It is a version
that was not pleaded, and first emerged
in court. I find their
evidence to be unreliable in material parts, as enumerated above. The
weaknesses in their testimony was
objectively shown up when the
Plaintiff was acquitted on 14 January 2013 because the complainant
clearly could not identify him
as one of the suspects.
[122] The probabilities
of this version of events leading to the arrest and detention of the
Plaintiff being true is non-existent.
[123] The remaining SAPS
members who testified in court did their profession a disservice. On
an evaluation of the evidence tendered
in its totality, it is patent
that these officers were aware that there were no objective facts
that could have influenced the
decision to arrest and detain the
Plaintiff. The evidence of Warrant Officer Dagada, Acting Commander
of Tshamutumbu Police Station,
was particularly disappointing in its
content. He collected the Plaintiff from the clinic on 10 November
2011, yet could not explain
why no entry concerning that visit was
made in the investigation diary or the OB book.
[124] To compound his
version, he confirmed to the court that he did not go to the spaza
shop after receivin'g the report of the
robbery nor did he meet the
owner or shop keeper. To the extent that he ought to have overseen
the convening of an identity parade
by the investigating officer, he
failed to do so.
[125] The evidence of
Constable Netsamba with regard to the injuries he observed on the
Plaintiff when he arrived at the police
station was that the
Plaintiff's skin underfoot was peeling off. This is inconsistent with
the evidence of Warrant Officer Dagada
who collected the Plaintiff
from the clinic, and who testified that the Plaintiff s feet were
bandaged. When asked about this by
the Court, Constable Netsamba
retracted his testimony and stated that he did not see how the
Plaintiff's feet were as they were
bandaged.
[126] The testimony of
the investigating officer was equally unsatisfactory. The most
concerning aspect of his testimony related
to the finding of the toy
gun which was then sent for ballistic testing. This presumably was
supposed to be the firearm that Mr
Shandukani saw at a distance of
about 150 meters. There is no evidence to show that the toy gun that
was recovered was pointed
out by the Plaintiff.
[127] The manner in which
the investigating officer handled the questions noted by the Public
Prosecutor on 14 November 2011 also
raises concerns about the reasons
for the arrest and continued detention of the Plaintiff. The
Plaintiff was in employment on arrest.
He had a fixed abode. None of
these factors appear to have been confirmed or verified by the
investigating officer. The Plaintiff
posed no particular danger to
any member of the community.
[128] This court is
satisfied that the conduct of the investigating officer and the other
members of the SAPS, including Mr Shandukani,
is consistent with the
suggestion that the arrest and detention of the Plaintiff was not for
the purposes set out in sections 39
and 40 of the CPA. Theses
policemen did not conduct themselves as professional policemen,
driven by the constitutional objective
set out in section 205 of the
Constitution. What they did smacks of a cover up of the truth of what
really happened on 10 November
2011. It is to this version that the
Court now turns.
[129] The Plaintiff took
the stand and testified about the events of 10 November 2011. Unlike
the Defence witnesses, his testimony
was clear, it rang true, it was
presented in great detail, and it was broadly consistent with the
essential version that had been
put up in the pleadings, both prior
to and after the amendment thereof. He was cross examined about the
reference in the pleadings
to keeping the money in his pocket as
opposed to keeping it in a wallet in his Nike branded bag. This
interrogation he handled
with clear responses that his instructions
to his attorney were that the money was in his bag.
[130] The Plaintiff s
testimony was that he was arrested approximately 35 km from Mabvete
village. The SAPS who apprehended him
mentioned the robbery at the
spaza shop. He denied all knowledge of it. When asked about the money
he had on him he explained where
he got it from and offered to go to
the bank with the police to prove that it was his.
[131] The assault that he
described was perpetrated on him is consistent with the injuries he
sustained and with the order by the
magistrate that he be
hospitalised so that he could receive treatment. He spent 7 to 8 days
in hospital, a fact that attests to
the severity of his injuries.
These are the first set of medical records that were introduced in
evidence. His fear of the police
is believable.
An
evaluation of the probabilities of the two irreconcilable versions
[132] The only common
cause factors that are supported by incontrovertible evidence relate
to the medical treatment of the Plaintiff
at Musina Hospital, his
detention at Tshumuthumbu Police Station, his court appearances, his
acquittal on 14 January 2013, and
the testimony of the complainant
who testified that he was not one of the suspects who robbed her
spaza shop.
[133] In giving context
to the analysis of the evidence carried out hereunder, I wish to
preface my evaluation and findings by referring
to the points made by
the Court in
Ex parte Minister of Safety and Security·: In
Re S v Walters
[2002] ZACC 6
;
2002 (4) SA 613
(CC) at para 54 where it is
stated:
"[54] In order to
make perfectly clear what the Jaw regarding this topic now is, I
tabulate the main points:
(a)
The purpose of arrest is to bring before court
for trial persons suspected of having committed offences.
(b)
Arrest is not the only means of achieving this
purpose, nor always the best.
(c)
Arrest may never be used to punish
a
suspect.
(d)
Where arrest is called for, force may be used
only where it is necessary in order to carry out the arrest.
(e)
Where force is necessary, only the least degree
of force reasonably necessary to carry out the arrest may be used.
(I)
In deciding what degree of force is both
reasonable and necessary, all the circumstances must be taken into
account, including the
threat of violence the suspect poses to the
arrester or others, and the nature and circumstances of the offence
the suspect is
suspected of having committed; the force being
proportional in all these circumstances."
[134] I accept that, as
stated by the court in
Minister of Safety & Security v Van
Niekerk
2008 (1) SACH 56 (CC)
"
The constitutionality of an arrest is heavily dependent on the
factual circumstances.
"
[2]
[135] The primary issue
in dispute is whether the arrest and detention of the Plaintiff was
lawful. On this court's assessment and
evaluation of the evidence
tendered, its finding is that there is no merit in the version put up
by the Defendant. The version
of the Plaintiff is accepted as being
the most credible, reliable and probable. This court has observed him
closely when giving
his testimony, and found him to be an honest and
forthright witness.
[136]
On the Plaintiff's version, which this court accepts, there was no
cause for the police to arrest the Plaintiff on the spot
or at all.
Had they had well-grounded suspicions regarding his participation in
the robbery, nothing prevented them from verifying
his employment and
residential details and then arresting him when more thorough
investigations had been conducted into the robbery
[3]
.
[137] This approach would
have been in alignment with not only Standing Order G as noted in
Minister of Safety & Security v
Van Niekerk
2008 (1) SACR 56
(CC), which
"makes it clear that arrest is
a
drastic
procedure which should not be used if there are other effective means
of ensuring that an alleged offender could be brought
to court' .
[138] The approach of the
SAPS was also inconsistent with Ex parte Minister of Safety and
Security: In Re S v Walters (supra) in
which the court mapped out
clear guidelines that would assist in the arrest and detention of
suspects. The four material points
emphasised were that:
"[54]...
(a)
The purpose of arrest is to bring before court
for trial persons suspected of having committed offences.
(b)
Arrest is not the only means of achieving this purpose, nor always
the best.
(c)
Arrest may never be used to punish a
suspect.
(d)
Where
arrest is called for, force may be used only where it is necessary in
order to carry out the arrest.
[139]
There are various points at which the police at which the police were
not truthful in their version about the events that
occurred. When
cross examined Warrant Officer Dakada gave highly unsatisfactory
answers that shook his credibility and reliability
as a witness. In
this regard, I point to some of the entries in the investigation
diary which were interrogated and found to be
suspicious. The finding
of the firearm was highly questionable.
[140]
In addition, the probability of chasing a suspect through bush and
forest for 3 to 4 hours is improbable. The version that
the Plaintiff
took off his shirt and shoes is not only improbable, but is also
contradicted in the evidence of Constable Ramphabana.
[141]
The failure by the SAPS to take the Plaintiff to the clinic regularly
between the 11 November 2011 and 13 November 2011 supports
the
Plaintiff’s version that in that period he was severely
assaulted. This court accepts the Plaintiff’s version of
the
assaults that he suffered during his detention, as well as the reason
for not bringing these to the attention of the Magistrate
or the
Legal Aid practitioners who noticed his pain and discomfort in court.
Finding
on the discharge of the onus
[142]
This court is satisfied that the Defendant has failed to discharge
the onus, on a balance of probabilities, of proving that
the arrest
and detention of the Plaintiff was lawful, and effected on the basis
of section 40(1)(b) read with section 42(1)(a)
or section 42(2) of
the CPA.
[143]
The most rudimentary investigations, such as verifying the
residential and employment address of the Plaintiff, and conducting
an investigation parade, was not done.
[144]
The material similarity between the evidence set out in the pleadings
and that of the Plaintiff struck the court. The tentative
approach by
the Defendant in giving a version in its pleadings created the
impression that the version was still under consideration.
[145]
The Plaintiff has succeeded in discharging the burden of proving that
he was severely assaulted by members of the SAPS, who
fall within the
authority of the Defendant.
[146]
For these reasons I find that the arrest and detention of the
Planintiff, as well as the assaults he suffered, were unlawful.
The
Plaintiff therefore succeeds on its claim on the merits. The question
of the quantum of damages, if not settled between the
parties, should
be set down before this Court.
Order
[147]
I make the following order:
1.
the Plaintiff succeeds on the merits in respect of
the claim of unlawful arrest, detention and assault; and
2.
the Defendant is ordered to pay the costs of these
proceedings.
______________________
GCABASHE AJ
ACTING .JUDGE OF THE
HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
Counsel
for the Plaintiff: Adv. J P Nel
Instructed
by: Erwee Attorneys, c/o Dyason Attorneys, Nieu Muckleneuk
Counsel
for the Defendant: Adv. B G Mashabane
Instructed
by: The State Attorney, Pretoria
Date
of Hearing: 14 - 18 November 2016
Date
of Judgment: 15 November 2016
[1]
Id at
para [5]
[2]
Id at
para [17]
[3]
Ex
parte Minister of Safety and Security: In Re S v Walters
[2002] ZACC 6
;
2002 (4) SA
613
(CC at para
[28]
, [44]. And [49]