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[2015] ZAGPPHC 124
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Reddy and Another v Minister of Safety and Security and Another (2924/2007,2905/2007) [2015] ZAGPPHC 124 (11 February 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
NORTH
GAUTENG DIVISION, PRETORIA
CASE NO:
2924/2007
CASE NO:
2905/2007
DATE: 11 FEBRUARY
2015
In the matter
between:
REDDY,
SAGREN
........................................................................................................
1
st
PLAINTIFF
MOODLEY,
DHARAMSEELA
MURUGAS
...........................................................
2
nd
PLAINTIFF
and
MINISTER OF
SAFETY AND
SECURITY
........................................................
1
ST
DEFENDANT
DIRECTOR OF
TSHWANE METROPOLITAN
POLICE
DEPARTMENT
.....................................................................................
2
nd
DEFENDANT
JUDGMENT
MAKHAFOLA
J
:
INTRODUCTION:
[1] Two plaintiffs
who call themselves brothers issued summons against the 1
st
and 2
nd
defendants comprising 3 similar claims of unlawful
assault, injuria and unlawful arrest and detention. The 1
st
plaintiff claims a total of R150 000.00 for his 3 claims whereas the
2
nd
plaintiff claims a total of R300 000.00 for his 3
claims. Before the trial all claims against the 2
nd
defendant were withdrawn by the plaintiffs. The claims against
the 1
st
defendant is the subject of this trial on
liability only. The claims relate to unlawful assault, injuria and
unlawful arrest and
detention. The merits have been separated from
quantum.
CONSOLIDATION:
[2] The two cases
were consolidated because of their similar facts, time and place
where the incidents had occurred at Montana Traders
Square, Pretoria.
[3]
EXHIBITS
(a) Exhibit A =
embodies the 1
st
plaintiffs combined summons case no:
2924/2007 and the 1
st
defendant’s plea thereto.
(b) Exhibit C =
contains the 2
nd
plaintiffs combined summons case no:
2905/2007 and the 1
st
defendant’s plea thereto.
(c) Exhibit X =
embodies a warrant of search and seizure, police statements of the
plaintiffs, Sergeant Steenkamp’s Police
Statement, a photo
album without a sketch-plan and key and other documents that were not
used in the trial.
ONUS TO BEGIN:
[4] By agreement
between the parties, the plaintiffs had to testify first.
CASE FOR 1
st
PLAINTIFF:
[5] SARGEN REDDY is
employed as a laboratory administrator in the Department of Water and
Sanitation and he has been employed for
about 9 years. He resides at
Kwaggasrand West Park.
[6] He was at
Montana Traders Square on 01 July 2006 on the date of the incident
together with his brother Moodley, his sister and
niece. It was a
Saturday before 4pm. They had gone there to buy a dog. This square
being flea-market has different stalls.
[7] On arrival at
the square, his sister and niece decided to enter a woman’s
clothing shop whilst he and his brother (2
nd
plaintiff)
remained outside chatting about soccer. They stood outside directly
opposite the woman’s clothing shop where his
sister and niece
were.
[8] During their
chat 2 white gentlemen who were sitting at the centre island
approached them and told them that they must go to
Pakistan where
they came from. These two unknown white gentlemen appear on photol as
“A" and “B”. This photo
was taken by the 2
nd
plaintiff after they (plaintiffs) were released.
[9] Now he knows
that the two white gentlemen are employed in SAPS in the Commercial
Crime Unit. His brother asked the 2 gentlemen
to identify themselves
after they said they (plaintiffs) must go to Parkistan. His brother
said: “Excuse me” and the
gentlemen said to them that
they must listen once. These 2 gentlemen wore civilian clothes. After
they had refused to identify
themselves his brother requested them
not to use derogatory names to them.
[10] Another man who
is not on photol arrived at the scene and asked his brother where he
(2
nd
plaintiff) worked. He has no idea about stores B1 and
B2. He knows the white male on photo8 marked “C”. he
works for
SAPS. But, at the time of the incident he did not know
where he was working because he was wearing civilian clothes. This
man asked
where his brother was working but he had refused to
identify himself. His brother (2
nd
plaintiff) asked this
man to leave them alone because they (the plaintiffs were not
interfering with them).
[11] When officer
Steenkamp arrived at the scene he stood in front of his brother and
him. He identified himself and told the white
“guys” that
he knows all commanders in the Metro Police and the 2
nd
plaintiff was not one of them. He asked his brother what his ID was
but his brother refused to identify himself. Then Steenkamp
said: we
are going to show you ‘coolies’ who we are”. Two
black males appeared at the scene and surrounded his
brother. One of
the black males works for SAPS. In total there were 5 males
surrounding his brother. He was surrounded by a person
marked “B"
in photol and the other marked “2" in photo2.
[12] His brother was
grabbed by his arms and legs and he was pulled towards the steel
palisade fence close to the store they had
been standing at.
[13] Steenkamp
handcuffed his brother’s hands at the back whilst he, (Reddy)
was taken by the 2 white men, as described, to
the palisade fence.
One grabbed him by his neck and the other by his shoulder, bashing
him against the palisade and he fell to
the ground. When he was about
to stand up Steenkamp threw him against the palisade fence and he
fell to the ground.
[14] Whilst on the
ground, white male on photo 2 marked “D" kicked him on his
ribs. White male marked “B"
on photol fisted him on his
neck whilst he was on the ground.
[15] He was held to
the concrete floor by white male "D” on photo2 by holding
both his hands behind his back. White male
“D” went to
fetch a strap which was placed on his left hand, but it was short.
Steenkamp fetched a handcuffed person
and cuffed him with this
person. He made him to stand by his brother who was already
handcuffed. His brother again asked them to
identify themselves but
they refused. He thought these people arrested them because they were
foreigners. They were not told that
they were going to be arrested.
They were surprised because they were called Pakistanis and
‘coolies’. They assumed
that these people were police
because Steenkamp was present.
[16] Whilst
Steenkamp was sitting next to them his brother asked him why he had
handcuffed them. He replied that they had defeated
the ends of
justice without explaining what that meant. When all these occurred
his sister and niece were standing outside the
clothing store saying
nothing. Steenkamp uncuffed his brother at 15H50. They were time
conscious and they kept on looking at their
watches.
[17] When Steenkamp
was asked by his brother why he uncuffed him, Steenkamp replied that
he did not want any embarrassment.
[18] He (Reddy) took
his brother’s cellphone and called his brother's boss one
Kamila. Oosthuizen arrived at the scene after
they had been uncuffed.
Sarina Gouws arrived and his brother explained to her what had taken
place. She informed them that their
arresters were from the
Commercial Crime Unit and told them (plaintiffs) to leave at 5:30pm.
[19] She had advised
them to go and open a case of unlawful arrest and assault at the
Sinoville Police Station to which they had
been accompanied by
Oosthuizen. He became scared as a foreigner because he was handcuffed
with a person he did not know. He (Reddy)
is a South African and his
race is Indian. After that incident, he now fears the police. He felt
offended by being called Pakistanis
because he is not one. He went to
Dr. Garach for medical attention and they also attended one session
of counselling from the same
doctor.
CASE FOR THE
2
nd
PLAINTIFF:
[20] DHARAMSEELA
MURUGAS MOODLEY resides at Manganese Street, Westpark, Pretoria-West
in Pretoria. He has been employed by the Tshwane
Police Department in
the Department of Group Audit and Risk for 16 years.
[21] On 01 July 2006
he was in the company of his family when he proceeded to Montana
Traders Square to buy a puppy where they arrived
at 15H45. He was in
the company of the 1
st
plaintiff (Reddy) outside. His
sister and niece proceeded to a women’s store at about 15H50
whilst he and Reddy stood directly
across stores B1 and B2.
[22] He and Reddy
were speaking about the soccer match they were going to watch on
television. They were standing in the middle
of the entrance facing
B1 as depicted on photo8 and about 15-20 meters opposite B1.
[23] There is a
flower pot which is about 1 Meter high where there were 2 white
males, as depicted on photo 1. A person marked “A”
was
wearing a civilian black jacket and the other marked “B”
wore a greyish jacket and was smoking.
[24] Whilst standing
there with his brother, white male “A” pointed them with
a finger and said: “you must go
to Pakistan where you came
from”. He (Moodley) said: “excuse me” and the white
male “A” said: “you
coolies must listen once”,
whilst white male “B" said: “coolies wake up".
He told “A” and
“B” humbly to leave them
(plaintiffs) alone as they were not interfering with them.
[25] White male “B”
asked him to identify himself. He did so by saying he is Moodley in
his private capacity. In turn,
he (Moodley) requested “A”
and “B” to identify themselves because he wanted to
engage them because he regarded
them to be civilians.
[26] “C”
appearing on photo3 wearing the blue clothes asked him (Moodley)
where he worked. He answered that he worked
at Metro Police as
Commander at Strategic Processes. Again he asked “A”, “B”
and “C” what they
wanted and who they were. They refused
to identify themselves.
[27] He then asked
“A”, “B" and “C” to leave his
brother (Reddy) alone and not to interfere with
him. In reply “C”
told him the following: “you are Pakistani man”. At this
moment “B” was laughing
and said: “he is working
for Metro Police and he is a commander".
[28] They called the
person appearing on photo 17 one Steenkamp who came closer to us and
said: “Ek ken al die foken commanders
in die metro polisie en
hierdie man is nie 'n commander nie”. He did not know Steenkamp
who was wearing a golf T-Shirt and
Metro Police combat trousers. At
that stage Steenkamp did not have a name-tag to his clothes.
[29] Steenkamp stood
in front of him (Moodley) whilst pointing a finger at him (Moodley)
and asked him what his problem was. He
(Moodley) asked Steenkamp to
identify himself so that he (Moodley) may identify him. Then
Steenkamp uttered the following words:
“today we are going to
show you coolies who we are". After he had asked Steenkamp not
to point a finger at him he heard
them raising their voices and he
did not raise his. He does not remember if his brother said anything
in reply to Steenkamp.
[30] At this stage
he was not aware that there was any police operation or anything
going on, because that portion where they were
was not condoned off
and he had freedom of movement there.
[31] They were
surrounded by black and white males as depicted on photosl and 6
where “A”, “C” and “E"
appear and
there was another black gentleman he did not photograph. At that
moment Metro Policeman appearing on photo17 one Steenkamp
held him
(Moodley) with a collar. Males “A” and “D"
stood in front of his brother.
[32] Steenkamp held
him by his shoulder and he (Steenkamp) was in the presence of 2
whites “A" and “C” together
with the black
gentleman “E”. male “B” held him by his
shoulder whereas male “D” caught him
by his throat whilst
they pushed him towards the palisade fence where they bashed him
twice against the said fence. He did not
resist.
[33] He again asked
them what they wanted from them with force. He also asked them who
they were. They refused to identify themselves.
As a result of the
bashing against the fence he sustained injuries to his neck and back
where he had bruises and red marks.
[34] He assumed that
Steenkamp was a Metro Police Officer. His hands were held to the back
by black male “E” on photol
who said in English:
“Pakistan what now” that was the time when officer
Steenkamp handcuffed him. He was not warned
of his rights because
they said nothing. He could not resist arrest or bashing against the
palisade fence because everything happened
very quickly.
[35] He (Moodley)
has been trained to effect arrest. When one arrests one applies
Section 39
of the
Criminal Procedure Act 51 of 1977
. White male “A”
on photol said “fok off’ when he (Moodley) asked him to
identify himself. His brother was
dragged towards the palisade fence
where he was bashed against it by Steenkamp and he (Reddy) fell to
the ground. He had also punched
Reddy at the neck.
[36] They tried to
handcuff his brother with a red strap which was short and could not
hold two hands. An Asian man was brought
to his brother and the left
hand of Reddy was handcuffed to this Asian man. And this was done in
the presence of the public who
were not laughing. He and his brother
stood at the scene from 4pm to 4:50pm. White male “A” on
photol said to him:
“you can stand with your brother from
Pakistan".
[37] He telephoned
one Kamila and related to him what had happened. He also got hold of
Commander Oosthuizen who said he would come
to the scene. Oosthuizen
arrived at the scene at 4:45pm and Serina arrived 5 minutes later.
Steenkamp had told him that he (Steenkamp)
had cuffed his brother
because: “we defeated the ends of justice”. He and his
brother were not charged for any crime.
At the time Steenkamp
uncuffed him he asked him why he was doing that and he told him: “I
don’t want to embarrass you,
sir”.
[38] Photos 13, 14
and 15 depict the injuries of his brother. He received medical
treatment from Dr Garach who also does trauma
counselling. It took
him few days before he was able to sleep. He also received painkiller
“equalom” for his condition.
When the incident occurred
he thought it was a xenophobic attack on them.
[39] Mr. Moodley
testified that there are many stores at Montana Traders’
Square. He took photos when he saw the metro police.
He took the
photos in Exhibit X with his cellphone whilst he stood outside B2 on
01 July 2006. He was between passages of stores
B1 and B2. He took
photos 3, 5, 6 and 7 whilst he was also in the passage. Photo8 was
taken just outside store B1 on the left hand
side. He is the one who
marked all these photos. Photo16 is a newspaper clipping.
CASE FOR THE
1
st
DEFENDANT
[40] KAGISO MICHAEL
DITLOPO testified in Setswana that he is a warrant officer in SAPS
and that he is stationed at the Johannesburg
Central Police Station.
He has been in SAPS for 32 years now.
[41] In July 2006 he
was stationed at the same Police Station working in the Crime
Prevention Uniform Unit. He is currently in the
detective unit. He
does not remember well as to whether Metro Police were part of the
operation at Montana Traders’ Square
on July 2006, but he was
present there and he was a part of the operation. Most of the members
in the operation came from Johannesburg.
He thinks the late Kaogora
was in charge of the operation. All the police in the operation wore
civilian clothes.
[42] He has
personally seen a warrant of search and seizure of counterfeit DVD’s
and CD’s which were to be confiscated.
When they were briefed
about the operation at the Police Station in the morning of 01 Juiy
2006 they had been shown same. His name
appears on that warrant.
Maimela Matsheke came from the same Police Station as himself. Other
members of the operation came from
different Police Stations.
[43] There are
different stalls at Montana Traders’ Square which were to be
searched. His role was to arrest those selling
counterfeit DVD’s
and CD’s at shop B2 and was to prevent customers from entering
the same shop where he was posted.
[44] He could not
give the exact number of the members of the operation because their
convoy was made up of motor vehicle and buses.
B1 and B2 stalls are
close to each other and he was posted there. He is the black male “E"
on photol of exhibit X the
photo which was taken by the 2
nd
plaintiff.
[45] Whilst he was
posted at B2 stall he saw 2 males of Indian descent. They were
shouting at the police saying police do not know
what they are doing
and do not know their work. Both these 2 men were uttering these
words. One of these men told the police that
he was Chief of Metro
Police and a Commander. The words that police did not know what they
were doing were uttered several times
by these 2 men.
[46] Whilst the 2
gentlemen were shouting, a traffic officer emerged. He was in traffic
uniform. He approached the 2 gentlemen and
wanted to find the reason
for their shouting. He did not hear the whole conversation. He later
knew the said traffic officer to
be Mr. Steenkamp.
[47] Steenkamp said
he did not know the one gentleman who said he was a chief officer in
the Metro Police. He specifically asked
him for his appointment card.
The 2 Indian gentlemen screamed at Steenkamp when he asked them for
appointment cards. They started
pushing Steenkamp around. The other
police who had been watching the spectacle went to assist Steenkamp.
When these police arrived
to assist him, Steenkamp produced
handcuffs. Because, the 2 Indian gentlemen had been pushing Steenkamp
the other police officers
came and separated them from Steenkamp.
They grabbed the one who was arrested first with strength to separate
him from Steenkamp.
Then Steenkamp handcuffed Moodley.
[48] According to
his observation not one policeman could arrest him because he had
been warned many times about his violent conduct
to the police. The
police expected him to be mild in his conduct after the appearance of
Steenkamp, but Mr. Moodley continued to
be hostile.
[49] He did not see
Mr. Moodley being bashed against the palisade fence before being
handcuffed. To his knowledge he was arrested
for interfering with
what the police were doing. He was disturbing the operation and the
concentration of the police. Police could
not concentrate because of
the shouting of Moodley. He (Ditlopo) was placed at shop B2 where he
was supposed not to allow people
to enter the store, and he also had
in his care 2 suspects. Mr. Moodley disturbed concentration, and
without it these suspects
could have run away.
[50] He denied that
white male “A” ever told Moodley: "you Pakistan go
home”. He saw how Reddy was arrested
after having been grabbed.
He did not see Steenkamp handcuff him because Steenkamp’s
handcuffs were on Moodley. He cannot
remember who had handcuffed
Reddy. He also did not see the alleged bashing, kicking and the
police placing a knee on Reddy.
[51] It was not
possible for the police to bring Reddy under control without use
offeree. Reddy was detained near B2.
[52] After the
arrest of Reddy and Moodley a senior traffic officer appeared at the
scene and confirmed that Moodley is their colleague.
The police held
a short meeting because the senior traffic officer pleaded leniency
for Moodley. The police spoke to Moodley who
showed remorse for his
behavior. Moodley was forgiven for his behavior, thereafter he was
uncuffed, by Steenkamp.
PIETER
STEPHANUS ALBERTUS JOHANNES
[53] STEENKAMP is a
Sergeant in the Tshwane Metro Police after joining the police in
2000. He was at Montana Traders' Square between
15H30 and 17hours for
personal reasons.
[54] There was an
incident involving him and Commander Moodley. On that day he was
wearing full Metro Police uniform. He came from
one of the shops and
there he heard a verbal scuffle. He was approached and told that
there was a person claiming to be a commander
of the metro police. He
proceeded to the place where there was swearing to find out what the
problem was.
[55] On arrival at
the scene he found the people involved being 2 gentlemen, 2 ladies
and a couple of SAPS members. The 2 gentlemen
were swearing and
yelling at SAPS members and obstructing their duties. The SAPS
members were on duty for seizure of illegal DVD’s
because that
is what he was told by the police.
[56] He went first
to the person who it was said claimed to be a commander of metro
Police. This man was aggressive, speaking loudly
and swearing at the
police telling them that they did not know what they were doing. He
was making a scene. He placed his hand
on his chest and asked him to
step aside and he asked him to identify himself.
[57] At this stage a
person he did not see well, came and slapped him on his face. Then
people converged to rescue him (Steenkamp).
These people pushed this
person against the palisade fence and one gentleman asked if he had
handcuffs to handcuff him. He could
not remember this person who
asked for his handcuffs but it was a Captain.
[58] The handcuffed
person told him that he was going to call somebody one Commander
Oosthuizen to come and identify him. These
2 gentlemen according to
him were not arrested they were held to calm them down.
[59] He denied
handcuffing the plaintiffs and using any derogatory words against
them. According to his observation the plaintiffs
had been
interfering with the police performing their duties.
[60] Commander
Oosthuizen did arrive and he (Steenkamp) went to him upon his
arrival. He related to him that Mr. Moodley told them
he was a
commander. This was confirmed by Oosthuizen. Steenkamp apologized to
Mr. Moodley by saying he was sorry about what happened.
He
(Steenkamp) uncuffed Mr. Moodley.
[61]
THE LAW
1.
SOUTH AFRICAN
POLICE SERVICE ACT, NO 68 of 1995
Section 67(1)
provides:
(1) Any person
who -
(a) resists or
willfully hinders or obstructs a member in the exercise of his or her
powers or the performance of his or her duties
or functions or, in
the exercise of his or her powers or the performance of his or her
duties or functions by a member willfully
interferes with such member
or his or her uniform or equipment or any part thereof; or
(b) in order to
compel a member to perform or to abstain performing any act in
respect of the exercise of his or her powers or the
performance of
his or her duties or functions, or on account of such member having
done or abstained from doing such an act, threatens
or suggests the
use of violence against, or restraint upon such member or any of his
or her relatives or dependents, or threatens
or suggests any injury
to the property of such member or of any of his or her relatives or
dependants,
shall be guilty
of an offence and liable on conviction to a fine or to imprisonment
fora period not exceeding 12 months.
2. In RV WEYER
[1958(3)] SA 467 (G) at 472 A-B the court said: “I have no
doubt that his action in standing where he did constituted
an
obstruction or hindrance even though he stood still. In common
parlance a man who obstructs is a man who impedes or withstands
or
stops someone; a man who hinders is a man who deters, delays or
frustrates action”.
3. In BENNETT V
MINISTER OF POLICE
[1980] 3 ALL SA 817
(C) the court intimated that a
plaintiff must allege and prove impairment of the relevant aspect of
personality relied on.
4. Act 51
of
1977 Section 40(1)(j) provides that: A peace officer may without a
warrant arrest any person -
(j) who willfully
obstructs him in the execution of his duty.
5. Act 51
of 1977
Section 49 provides that: if any person authorized under the Act to
arrest or to assist in arresting another, attempts
to arrest such
person and such person - resists the attempt and cannot be arrested
without the use of force, the arrestor may use
reasonable force the
arrest the suspect.
6.
IN PILLA Y V KRISHNA AND ANOTHER 1946 AD at 947 the court stated that
the
onus
rests upon the party who asserts
the affirmative in substance and upon the party who would be
unsuccessful if no evidence were led.
And,
in this respect I am alive to the fact that the plaintiffs bear the
onus
of
proving their claims. But, where the defendant, as here, has admitted
some of the allegations and pleaded justification he must
then prove
the justification.
EVIDENCE
ANALYSIS AND EVALUATION
[62] The mere fact
that the plaintiffs uttered the words that “the police did not
know what they were doing” confirms
that they had known that
the police were present and executing the “counterfeit
operation) as stated in the 1
st
plaintiffs police
statement.
Vide
:
Exhibit
X paginated pages 23 par 5 lines 10-11.
[63] Again, in his
police statement the 1
st
plaintiff refers to the police as
SAPS members.
Vide
:
Exhibit
X paginated page 24 par 8 line 1.
It is further on
record that both plaintiffs were together when they were allegedly
racially abused by the police. There is no logic
to defy the fact
that Mr. Reddy would not have referred to SAPS members in his police
statement if he and his brother (but specifically
himself) did not
know about the presence of the South African Police. Their denial in
this regard is not honest and falls to be
rejected as untenable.
[64] In the case of
S v SALVIER 1993(1) SACR 168(E) at 171d the court intimated the
following: “In the present case the Magistrate
was, in my view,
correct in holding that on his own showing the accused knew that
Paulsen and Phooko were members of the SA Police,
but at very least
he must reasonably have foreseen that they were about the execution
of their duties or functions”. These
sentiments are apposite in
the present case because of the facts already stated above.
[65] In the context
of Mr. Reddy’s police statement both plaintiffs had been aware
that the police were busy with a “counterfeit
operation”,
nothing detracts from that unless a reasonable explanation is offered
for this material discrepancy with the
plaintiffs’ evidence in
court.
[66] I turn to deal
with the defendant’s case anchored on the evidence of Ditlopo
and Steenkamp. Their evidence confirms the
fact that the plaintiffs
were obstructing the police in the performance of their duties, and
that they were shouting or yelling
at the police.
[67] The 1
st
defendant has justified the use of force to calm the plaintiffs down
because they had been violent and have interfered with the
performance of the police duties.
[68] All evidence by
the plaintiffs point to Sgt Steenkamp as the arresting officer, but
he has denied this, and this point was
not pursued further during
cross-examination. Steenkamp is not a member of SAPS and could not
have been acting under the scope
of employment with the 1
st
defendant. The case against the 2
nd
defendant has
been withdrawn.
[69] It would not be
good enough for a litigant (in particular here, the defendant) to
admit damning allegations by the plaintiffs
and expect absolution
from them unless a raw justification is based on facts and the law.
Where justification has been proved and
it is reasonable in the
circumstances of the facts, the justification ought to be sustained,
as I hereby do.
[70] If I were to
accept that Mr. Moodley had refused to identify himself by refusing
to produce his appointment card because he
had claimed to the police
to be a commander in the Metro Police, then I must accept, as I do,
that Steenkamp was called to identify
him. Otherwise, there would be
no reason for Steenkamp to have been called to the scene because he
was not on duty there. He was
at that centre on his private business.
[71] I also accept
that on Mr. Moodley’s refusal to identify himself, Commander
Oosthuizen did arrive, after having been contacted,
at the scene and
correctly identified Mr. Moodley as a Commander in the Tshwane Metro
Police.
[72] In my view,
logic dictates that had Mr. Moodley positively identified himself by
producing his appointment card the events
would have developed
differently. As depicted by evidence the situation was defused by
Commander Oosthuizen because after he had
identified Mr. Moodley,
Steenkamp apologized for what had happened.
[73] The police were
entitled in law to execute their “counterfeit operation”
by virtue of the Warrant in their possession.
They were also entitled
to demand not to be interfered with in the execution of their duties.
In law, they were also entitled to
deal with anybody who interfered
with them.
[74] The attack of
Steenkamp has been corroborated by Ditlopo. He testified that the two
plaintiffs had been pushing Steenkamp and
as a result the SAPS
members came and separated them using strength. Mr. Moodley was
handcuffed after this scuffle. That, and that
alone is a justifiable
cause to handfuff and arrest the plaintiffs.
[75] It can also be
accepted that Steenkamp had handcuffed Mr. Moodley, though he had
denied it. Ditlopo’s evidence has confirmed
that Mr. Moodley
was handcuffed by Steenkamp. A police officer in the position of
Steenkamp could not be attacked in the presence
of the police and
they be expected to fold their arms and enjoy the spectacle. The fact
that Steenkamp was slapped was never denied
and disputed by the
plaintiffs.
CREDIBILITY
[76] Both plaintiffs
were at pains to explain why, if indeed, they had been seriously
injured, did not seek medical treatment the
same day of the incident.
The unreasonable explanation was the unavailability of Dr. Garach who
does not work on weekends. They
could also not explain why they did
not go to any private or public health facility. They failed to
[77] Dr Garach was
not called to testify about their alleged injuries which had been
disputed by the defendant. The defendant had
also disputed that Dr.
Garach was a qualified trauma counsellor. No evidence to support same
was placed on record. Mr. Moodley
received painkillers for his
condition. He had gone for medical treatment some 3 to 4 days after
the incident.
[78] According to
Mr. Reddy he was handcuffed to another Pakistani person by Steenkamp.
The same Steenkamp handcuffed Mr. Moodley.
Yet, the testimony of
Steenkamp is that he had only one pair of handcuffs. If the
plaintiffs’ version is correct then it
is expected that they
should give a reasonable explanation for the discrepancy.
Vide
:
S v MAFALADISO EN ANDERE 2003(1) SACR 583 (SCA) Both plaintiffs were
impressive witnesses when they testified during their
examination-in-chief,
but were a disaster when they testified during
their cross-examination. They were evasive to direction questions,
and lacked substantiation
to their allegations.
IMPROBABILITIES
[79]
The police have denied any form of
injuria
on
their part. Taking into consideration the plaintiffs evidence of
racial utterances and circumstances prevailing that the 1
st
plaintiff had been handcuffed to a Pakistani who was never racially
abused, and the presence of other Pakistanis to where they
(the
plaintiffs) had been taken, the improbability of the allegations
militates strongly against the police having uttered the
alleged
injurious words.
[80] The two ladies
who were with the plaintiffs, on Mr. Reddy’s version, were
standing outside the shop during the alleged
racial slurs and abuses.
There is no evidence that the two ladies and other arrested
Pakistanis were included in the injurious
insults. The plaintiffs'
evidence is improbable on this aspect too.
[81] The plaintiffs
have portrayed a scenario where they had been innocent by-standers
who were, without any justifiable cause racially
and physically
attacked by unruly police officers who had no business to do at
Montana Traders’ Square. This is equally improbable.
[82] The suggestion
by Mr. Moodley that he thought the police were engaged in a
xenophobia attack is so improbable that it is unthinkable
within the
summary of all evidence before court. If, indeed, xenophobic attack
was unleashed by the police the plaintiffs’
sister and niece
and the other Pakistanis present there could not have escaped the
brunt of it.
[83] It is equally
improbable that the police were hell-bent to attack the plaintiffs
unknown to them, and shamefully neglect their
duties that they had
come to fulfill in terms of their warrant at the centre.
DIL1CTUAL
LIABILITY
[84] If the police
conduct had not been wrongful, then one arm of the foundation to
establish dilictual liability is wanting. Even
if the police were at
fault by calming or arresting the plaintiffs that does not establish
wrongfulness, where an unassailable
justification has been advanced
by the police for their conduct. “Fault does not presuppose the
existence of wrongfulness
and is irrelevant unless wrongfulness is
established”.
Vide
:
MINISTER
OF SAFETY & SECURITY v VAN DUIVENBODEN 2002(6) SA 431 (SCA)
INDAC ELECTONICS
(PTY) LTD V VOLKSKAS BANK LTD 1992(1) SA 783 (A) at 797
FINDINGS
[85] The above
having been stated I hold as follows:
i) that, I cannot
find, without sufficient evidence, that the police conduct was
outrageous in dealing with the plaintiffs in the
manner they have
done and in that resulting in a civil wrong;
ii) that the
plaintiffs have failed to testify about any start-up to the alleged
ghastly police conduct that culminated in their
alleged assault,
humiliation and/or contumely and arrest;
iii) that the
plaintiffs’ evidence considered with that of the defendant
lacks the probability clout upon which I can infer
that the police
wronged them as alleged; and
iv) that there is no
evidence to sustain the plaintiffs’ claims.
CONCLUSION
[86]
I am of the view that the plaintiffs’ have failed to discharge
the
onus
they
bear in order to succeed. Their claims fall to be dismissed.
ORDER
[87] Therefore, the
plaintiffs’ claims are dismissed with costs.
KHAMI MAKHOFOLA
JUDGE: GAUTENG
DIVISION, PRETORIA