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[2015] ZAGPPHC 136
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Matlala v Minister of Police (6578/2012) [2015] ZAGPPHC 136 (4 March 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION. PRETORIA)
CASE NO: 6578/2012
DATE: 4 March 2015
NOT REPORTABLE
NOT OF INTEREST TO
OTHER JUDGES
IN
THE MATTER BETWEEN
:
JOHANNES
MATLALA
.....................................................................................
PLAINTIFF
AND
MINISTER OF
POLICE
..................................................................................
DEFENDANT
JUDGMENT
KOLLAPEN J:
1. The plaintiff has
instituted action in which he seeks the payment of damages for his
alleged unlawful arrest and detention on
the 10
th
of March
2011 by members of the South African Police Services. In addition the
plaintiff seeks damages for various incidents of
assault perpetrated
upon him on the 10
th
of March 2011 by members of the South
African Police Services.
2.
At the commencement of the trial there was a separation of the merits
and quantum of the dispute, the Court being satisfied that
it would
lead to the expeditious resolution of the dispute between the
parties. The trial proceeded on the merits only.
3. The plaintiff
testified in his own case and called as witnesses Dr Matea of the
Philadelphia Hospital and a Ms Mabogwane, while
Constable Ratlogo
testified on behalf of the defendant.
BACKGROUND
FACTS
4.
On the 10
th
of March 2011 there was an attempted armed robbery that occurred at
Prince Supermarket at Nagageng in Moutse region, Limpopo Province.
The police were summoned and Constable Ratlogo and his colleague
Constable Matlawa went to the scene. Following reports they received
they made their way to Ga-Matlala village in search of a blue Toyota
Corolla which they believed may have been used to transport
the
robbers.
5. At Mzala’s
tavern they came across a blue Toyota Corolla and identified the
plaintiff as owner and driver of the vehicle.
The plaintiff alleges
that he was punched and kicked at this point by various policemen who
were on the scene while the evidence
of Constable Ratlogo was that
the plaintiff was uncooperative and that minimal force was used in
order to secure his cooperation,
namely to return to the scene of the
attempted robbery.
6. The police, the
plaintiff and the other suspects then went to the supermarket and it
appears that none of the suspects could
be identified while the
complainant in addition intimated to the police that he was no longer
interested in pursuing the charge
of attempted robbery. The plaintiff
testified that before being taken to the supermarket, he was taken to
the Dennilton police
station where he was assaulted for a second
time.
7.
Following
the visit to the supermarket, the police once again took the
plaintiff to the Dennilton police station for further questioning
-
it is not clear why this was necessary given the failure to identify
the plaintiff or any other suspect as well as the complainant’s
intimation that he was no longer interested in pursuing the charges.
8. The plaintiff
alleges that he was assaulted at the police station and that during
the course of the assault he admitted to his
involvement in the
purchase and sale of stolen diesel. He took the police to the person
to whom he had sold the diesel and at some
stage he also accompanied
the police to the home of the bus driver from whose bus the diesel
was allegedly stolen. He was then
taken back to the police station,
charged, and taken to Court on the 14
th
of March 2011.
9. The plaintiff
alleges that he was assaulted again after the visit to the bus
driver’s home as well as when he finally got
back to the police
station. He stated that there were four separate instances of him
being assaulted on the day in question.
10. It is common
cause that the plaintiff was never charged with attempted robbery. It
is also common cause that the plaintiff pleaded
guilty to a charge of
being in possession of stolen diesel.
11. Dr Matea’s
evidence was to the effect that the plaintiff was treated at the
Philadelphia hospital on the 15
th
of March 2011 where he
was admitted and he was thereafter discharged on the 16
th
of March 2011. The J88 which was completed by Dr Madhi indicated the
existence of various abrasions on the plaintiffs face, chest
and
back. In addition he was struggling to urinate and a provisional
diagnosis of‘crush syndrome’ was made.
12.
The report also states that on a follow-up visit, presumably in April
2011, a fracture of the left fibula was diagnosed and
treated. In
this regard the examination of the 15 of March 2011 did reveal a
swollen and tender left knee which in Dr Matea’s
opinion was
consistent with the later diagnosis of a fracture. The J88 concluded
that the injuries observed on the plaintiff were
consistent with
blunt force trauma with a stick-like object.
13. Ms Mabogwane
testified that on the evening of the 10
th
of March 2011
she heard screaming and upon investigation had come across a
policeman assaulting the plaintiff. She said that the
plaintiff was
on the ground and was being kicked by the policeman. She was unable
to identify the policeman but saw the plaintiff
whom she knew as
being a member of the community. Given that the time was 9PM and
there were no lights in the street, it is not
clear how she could be
so certain that it was the plaintiff she saw being assaulted and the
reliability of her evidence of identification
must be called into
question.
14. Constable
Ratlogo was adamant that the plaintiff was never assaulted during the
course of the 10
th
of March 2011, either by him or any
other police officers that he was aware of. He stated however that
when he arrested the plaintiff
during the course of the day he
appeared normal and there were no marks or wounds that were visible.
His further evidence was that
the plaintiffs constitutional rights
were read to him when he was finally detained at the end of the day,
and not during the course
of the day when the plaintiff was being
questioned.
EVALUATION
15. Section 40(1
)(b) of the Criminal Procedure Act provides that a peace officer may
without warrant arrest any person whom he
reasonably suspects of
having committed an offence referred to in Schedule 1 .
It is common cause
that both the offence of attempted armed robbery as well as theft /
receiving stolen property are schedule one
offences.
16.
In
DUNCAN V MINISTER OF LAW OF ORDER
1986
(2) SA 805
(A)
the
Court listed the jurisdictional facts in terms of Section 40(1 )(b)
as follows (at 818G-H):
i. The arresting
officer must be a peace officer;
ii.
The
arresting officer must entertain a suspicion;
ííí. It must be a
suspicion that the arrestee committed a Schedule 1 offence (other
than escaping); and
iv.
That
the suspicion must rest on reasonable grounds.
17.
Clearly on the information received after the robbery that the three
suspects were picked up by a blue Toyota Corolla, and the
later
discovery of a Toyota with the same number of suspects, it could
hardly be said that there was not a reasonable suspicion
of the
involvement of the plaintiff and the other occupants in the offence.
Of course once the complainant refused to proceed with
charges and
there was non-identification of the suspects, the situation may have
changed. In this regard however one must be careful
because there was
no withdrawal statement filed by the complainant. He is alleged to
have said that he does not want trouble which
may have placed into
question his motive for not proceeding further, and the
non-identification of any of the suspects.
18.
Ordinarily the plaintiff should then have been released but the
question is whether his further detention and questioning became
unlawful. I am not convinced that it was, because the police can
never be said to become
functus officio
as
it were, once the complainant declines to co-operate. However not
much turns on this in my view as subsequent events may well
have
justified the further detention of the plaintiff.
19. It is not in
dispute that the plaintiff disclosed his involvement in the unlawful
possession of diesel. The issue raised in
argument is that the
disclosure was made as a result of an unlawful assault and this
should not be considered as forming the basis
for the plaintiffs
further detention. In this regard it appears that when the plaintiff
was being questioned, there was no report
or a complaint of diesel
having being stolen and thus it was highly unlikely that the police
would seek information from the plaintiff
regarding a crime they were
unaware of. Once the plaintiff made the disclosure and offered to
point out the diesel, the police
were in my view obliged to follow up
the matter and to the extent that the plaintiff continued to remain
in custody during that
time and until his court appearance, this was
justified by the objective facts.
20.
Under these circumstances and for the reasons given I would conclude
that the arrest and detention of the plaintiff was not
unlawful save
possibly for the brief period between when he was taken to the
supermarket and his later disclosure of involvement
in the theft of
diesel. However, given the lack of evidence of how long that time
span was, I would be hesitant in concluding that
his detention during
that period was unlawful as it may well have been for a minimal
period.
THE UNLAWFUL
ASSAULT
21.
While the version of the plaintiff and that of Constable Ratlogo
stand in contrast to each other, the medical evidence strongly
supports the conclusion that an assault was perpetrated upon the
plaintiff. If indeed he was physically and otherwise normal at
the
time of his arrest, then it is inexplicable how he sustained the
injuries he did except for an assault either by the police
or by
fellow prisoners. If it was the latter, one would have expected the
police to have picked it up and recorded it in the police
station’s
occurrence book. All the circumstances point strongly in the
direction of the plaintiff having been assaulted by
the police.
22.
The question arises as to whether he was assaulted on a single or on
a number of occasions. According to the plaintiff he was
assaulted in
the tavern in the presence of many other people including his friends
yet none of these people were called as witnesses.
In addition it is
difficult to conceive of a reason why he would be assaulted after he
disclosed his involvement in the stolen
diesel and co-operated with
the police. There would be nothing to be gained by assaulting him nor
could it be said that there was
further information that was being
sought.
23.
Another factor which warrants consideration is that if regard is had
to the plaintiffs testimony that the assault was so severe
that his
eyes were closed as a result, then Dr Matea was of the view that the
evidence of such injuries would have been visible
at the time of the
examination on the 15
th
of March 2011. That there were no visible eye injuries must raise
questions whether the plaintiff has exaggerated the incidents
and the
nature of the assault.
24. In conclusion I
have no doubt that the plaintiff was assaulted by members of the
police on the 10
th
of March 2011, but for the reasons
already given, I doubt that this happened on four separate occasions.
ORDER
25. In the
circumstances I make the following order.
i.
The
plaintiffs claim for unlawful arrest and detention is dismissed;
ii.
The
plaintiffs claim in respect of an unlawful assault on the 10
th
of March 2011 is upheld;
ííí.
The quantum of the unlawful assault claim is postponed
sine
die;
iv.
The
defendant is ordered to pay the costs of the action.
N
KOLLAPEN
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
HEARD ON: 02 &
03 FEBRUARY 2015
FOR THE PLAINTIFF:
ADV P W SPRINGVELDT
INSTRUCTED BY:
MALULEKE MSIMANG & ASSOCIATES (ref: Matlala/RJ/CI V.5077)
FOR THE DEFENDANT:
ADV E M BALOYI-MERE
INSTRUCTED BY: THE
STATE ATTORNEY (ref: 1654/2012/Z47/MC)