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[2015] ZAGPPHC 159
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Phuthi v Minister of Police (8540/2012) [2015] ZAGPPHC 159 (5 March 2015)
REPUBLIC
OF SOUTH AFRICA
GAUTENG HIGH
COURT DIVISION, PRETORIA
Case
No.: 8540/2012
DATE: 5 March 2015
In the matter
between:
MOHALENYANA
ELLIOT
PHUTHI
........................................................................................
Plaintiff
and
THE
MINISTER OF
POLICE
..................................................................................................
Defendant
JUDGMENT
MNGQIBISA-THUSI,
J
1. The plaintiff has
instituted an action for damages for unlawful arrest and detention
(claim 1); malicious prosecution (claim
2) and assault (claim 3).
2. The claims arise
from events that occurred on 31 July 2010 when the plaintiff was
arrested and detained by members of the South
African Police Service
(“SAPS”), an alleged assault by the police whilst
plaintiff was in police custody and appearing
in court on several
occasions.
3. The plaintiff is
claiming, as damages amounts of R120 000 (claim 1); R60 000.00 (claim
2) and R60 000.00 (claim 3).
4. The parties
agreed on a separation of issues in terms of Rule 33 (4) of the Rules
of Court. Accordingly, the matter proceeded
on merits only.
5.
The defendant has admitted the arrest and detention of the plaintiff.
In its plea the defendant relied on section 40(1 )(a) of
the
Criminal
Procedure Act
51
of 1977 (“the Act”) by alleging that the arrest of the
plaintiff was lawful since he had sworn at the police officers
and
their intention in arresting him was to charge him with the offence
of
crimen
injuria. Crimen injuria
is
defined in Snyman,
Criminal
Law
at
page 469 as consisting of the unlawful, intentional and serious
violation of the dignity or privacy of another.
6.
In terms of section 40(1) (a) of the Act, a peace officer may arrest
a person who commits or attempts to commit a crime in his
presence.
Wrongful arrest consists in the wrongful deprivation of a person of
his liberty. Liability for wrongful arrest is strict,
neither fault
nor awareness of the wrongfulness of the arrestor’s conduct
being required.
Minister
of Justice v Hofmeyer
[1993] ZASCA 40
;
1993
(3) SA 131
(A) at 154E-157C.
Smit
v Meyerton Outfitters
1971
(1) SA 137
(T) at 139D.
It is the
defendant’s version that on 31 July 2010 members of the SAPS
were assisting a certain woman who wanted to serve
a court order on
the plaintiff’s father by accompanying her to the plaintiffs
house. On arrival at the plaintiffs home, they
met his mother who
informed them that his husband was not at home, but that they could
talk with the plaintiff. The plaintiff had
hurled insults not only at
the complainant but also at the police officers accompanying her.
After failing to heed warnings not
to insult the complainant and the
police officers, the attempts by the police officers to arrest the
plaintiff were resisted by
the plaintiff leading to back-up being
called, which led ultimately to the arrest and detention of the
plaintiff. After his arrest
and detention, the plaintiff appeared in
court within 48 hours of being arrested. Thereafter the plaintiffs
case was postponed
on several occasions until the charges against him
were provisionally withdrawn. Further, the defendant denies that the
plaintiff
was assaulted by the police while in custody and that the
defendant was responsible for the prosecution of the plaintiff.
7.
With regard to claim 1, the parties are in agreement that that the
onus
rests
with the defendant to prove that the arrest of the plaintiff was not
unlawful. If the arrest were unlawful, the subsequent
detention of
the plaintiff would automatically be unlawful. There is also
agreement that the plaintiff bears the
onus
of
proving that he was assaulted by members of the defendant and that
his prosecution was malicious and instigated by members of
the
defendant.
8. The following
facts are common cause:
8.1 that on 31 July
2010 (on a Friday) members of the SAPS arrested the plaintiff at his
home in Phuthaditjhaba, Free State;
8.2 that after his
arrest on 31 July 2010 the plaintiff appeared in court on 2 August
2010 (on a Monday) and his matter was postponed
for a bail hearing;
8.3 that the
plaintiff subsequently appeared in court on three occasions and at
the last appearance (on 17 March 2011), the charges
against him were
withdrawn.
9. There is a
dispute as to the events that led to the arrest of the plaintiff; his
alleged assault by police officers and his prosecution.
10. The first
witness to testify for the defendant was Constable Eric Sefatsa
(“Sefatsa”). Sefatsa’s evidence
is as follows. On
31 July 2010, he and Captain Lempetje (who is now deceased)
accompanied one Mamokete to the plaintiffs home as
she had requested
them to accompany her in order to serve a court order on the
plaintiffs father for the return of items listed
in the court order.
Apparently, Mamokete was married to the plaintiff’s deceased
twin brother with whom he had stayed at
plaintiff’s parental
home. On arriving at the plaintiff’s home, the police found the
plaintiff’s mother in the
yard. They introduced themselves and
informed her of the purpose of their visit. As they were talking to
the plaintiff’s
mother, the plaintiff entered the yard and the
mother referred them to him. On seeing Mamokete, plaintiff started
hurling insults
at Mamokete. The police admonished him but he
continued swearing at Mamokete and also swore at them. As he was
swearing, the plaintiff
was also pushing Lempetje and Mamokete out of
the yard. Sefatsa testified that they informed the plaintiff of the
purpose of their
visit and warned him that he was interfering with
the performance of their duties. As the plaintiff continued swearing
and shoving
Lempetje and Mamokete, the police attempted to arrest
him. His younger brother, Raphael Mphuthi (“Mphuthi”),
who was
busy fixing something in one of the rooms of the house, came
holding a trowel. Mphuthi tried to intervene in the scuffle between
the plaintiff and the police but was warned not to interfere as he
would also be arrested. In spite of being warned Mphuthi stabbed
Sefatsa with the trowel on his chest. Fortunately Sefatsa was wearing
a bulletproof vest and the tip of the trowel did not penetrate
the
vest. Back-up was called and on its arrival the plaintiff and his
brother were placed inside a police van, taken to the Phuthaditjhaba
Police Station and kept in custody until their appearance in court on
the following Monday.
11. During
cross-examination Sefatsa maintained that the proper procedures for
the arrest of the plaintiff and his brother were
followed in that the
plaintiff was informed of the reason for his arrest. Sefatsa denied
the plaintiff’s version that he
had asked the police officers
if they had a warrant to be on the premises and when they told him
that they had a court order for
a certain ‘Mujeri’, he
had told them that there was no such person at the premises, at which
stage the officers became
aggressive and assaulted him. Furthermore,
Sefatsa denied the plaintiffs version that his brother never
assaulted the officers.
Sefatsa further denied that the plaintiff was
bundled into the back of the police van in such a way that he bumped
his head against
the van’s canopy and was also injured because
of the way the van was driven on its way to the police station.
Sefatsa testified
that it was the plaintiff who informed them that
‘Mujeri’ was his father’s nickname. Sefatsa further
denied noticing
any injuries on the plaintiff.
12. The next witness
called by the defendant was Mamokete Mita Motloung (“Mamokete”),
the widow of the plaintiffs deceased
brother. Mamokete corroborated
Sefatsa’s evidence in all material respects as regards the
facts leading to the arrest of
the plaintiff and his brother. She
further testified that she had gone to the police station to seek
protection when serving the
order on ‘Mujeri’ as the
Mphuthi family had previously made it clear to her that they did not
want her on their premises
as she was accused her of ‘killing’
her husband. During cross-examination, Mamokete testified that she
did not seek
the assistance of a sheriff as set out in paragraph 3 of
the order as there were no sheriffs within the Qwaqwa area where the
order
was to be served. According to Mamokete, the nearest sheriff’s
office is found in Bethlehem and usually takes a long time
before
orders are executed within the area.
13. Constable Samuel
Motlatsi Nkopane (“Nkopane”) corroborated the evidence of
Sefatsa with regard to the arrest of
the plaintiff. He was part of
the officers called by Sefatsa as back up. During cross-examination
Nkopane testified that he was
not aware that the plaintiffs brother
(Mphuthi) was also arrested although he was informed by Sefatsa that
someone had stabbed
him and was saved by his bulletproof vest.
14. Warrant Officer
Ben Hlatshwayo (“Hlatshwayo”), the investigating officer
in the criminal matter, testified as follows.
On 2 August 2010 the
plaintiff appeared for the first time in court and his case was
postponed to 13 August 2010 for a bail application.
He testified that
the plaintiff was held in custody because of the seriousness of the
offence he was charged with. He confirmed
that on the day of the
plaintiffs arrest bail was set at R200.00 and when the docket was
sent to the prosecutor, the issue of bail
was contained in the
docket. He denied that he had requested the prosecutor to postpone
the matter for bail when the plaintiff
appeared in court on 2 August
2010 and reiterated that he was not opposed to the plaintiff being
granted bail on that day. Hlatshwayo
further testified that he did
not notice any injuries on the plaintiff when he interviewed him on
the day of his arrest. Furthermore,
Hlatshwayo testified that after
explaining to the plaintiff his constitutional rights, the plaintiff
informed him that he would
present his statement in court.
15. During
cross-examination, Hlatshwayo could not remember whether he consulted
with the prosecutor before 13 August 2010 or when
the plaintiff was
released from custody. He testified that Sefatsa had informed him
that the reason for them going to the Mphuthi
household was that
Mamokete had a court order, which was to be served on one of the
Mphuthi’s. He further testified that
it was normal occurrence
for police to accompany a complainant who needed to serve a court
order even if the court had given that
authority to the sheriff.
16. The plaintiff’s
evidence is as follows. On the relevant day on his return from town,
he found four police officers in
the yard of his parental home. He
inquired from them if he could be of assistance. They told him that
they had a court order in
terms of which certain items were to be
handed over to Mamokete who was in their company. He told them that
there was no problem;
Mamokete could get the listed items. Curiously
plaintiff testified that he told the officers that before his brother
died, he had
divorced Mamokete and was living with another woman and
was not sure if he could not give them the items since they could be
those
of the other woman. He then requested to look at the court
order, which he read, and pointed out to the officers that the order
was supposed to be served by a sheriff. He also informed them that he
did not know of a ‘Mujeri’ since his father’s
name
was David. When Lempetje asked him if he was going to hand over the
listed items or not, he gave them an opportunity of looking
at his
identity document as he thought that the officers suspected that he
was actually Mujeri. The plaintiff further testified
that on
requesting the police to leave the premises as the person they were
looking for was unknown to them, Sefatsa accused him
of trying to be
smart and demanded to know where he was employed. On telling him that
he was a traffic officer and giving Sefatsa
his appointment card,
Sefatsa, after looking at the card, threw it on the ground.
Thereafter Sefatsa and Lempetje manhandled him,
pushing him towards a
tree. Thereafter the officers momentarily left the premises and he
got inside a shack within the premises
where he prepared water to
wash himself as he intended to travel to Cape Town shortly. As he was
washing, he heard a knock and
Lempetje entered the shack and dragged
him outside. He testified that he was assaulted by one group of
police officers whilst the
other group went to the garage where
Mphuthi was busy fixing a door, dragged Mphuthi towards one of the
police vehicles, which
were outside. On reaching the police van,
Lempetje had banged his head against the van’s canopy before he
was thrown into
the back of the van. On its way to the police
station, the van was recklessly driven which resulted in him
sustaining an injury
to his head. At the police station he was taken
into a separate room from the one his brother was. As he was passing
the room in
which Mphuthi was, he saw him lying on the ground whilst
being assaulted by officers who had encircled him. At a later stage
he
was also taken into the same room where Mphuthi was, assaulted
with fists and booted feet and as a result his face and mouth were
swollen and he was bleeding from his mouth and nose. He had to wash
himself in a tap in an adjoining room. Although the plaintiff
initially testified that his legal representative was in court at his
first appearance in court, he subsequently changed his evidence
and
testified that he had legal representation. He also denied that his
constitutional rights were read to him when he was arrested.
Plaintiff further testified that he was denied medical assistance or
access to his pills (which were at home) even though he had
informed
the police that he was diabetic.
17. During
cross-examination, the plaintiff conceded that, as part of his
version, the following facts were not put to the defendant’s
witnesses, that:
17.1 one of the
officers had asked him if he was Mujeri and he had said no;
17.2 he had
explained to the officers that Mamokete and his brother had been
divorced for four years before he died and at the time
of his death,
the brother was staying with another woman;
17.3 the police
officers gave him the court order and he read it;
17.4 he would
dispute Mamokete’s version that when Mamokete and the police
were at his parental home, Mamokete was the one
in possession of the
court order;
17.5 whilst in the
room at the police station where he alleges he was assaulted, one of
the police officers had butted him with
a rifle behind his right ear;
17.6 Sefatsa had
inquired about his employment and after looking at his appointment
card had thrown it to the ground.
18. The plaintiff’s
response was that either he had told his counsel or he might have
left the facts out during consultation
with his counsel or had no
comment.
19. Further during
cross-examination, the plaintiff conceded that:
19.1 after reading
the court order, he understood from paragraph 3 of the order that the
sheriff was authorised to fetch Mamokete’s
goods if she
personally failed to recover the goods;
19.2 after reading
and understanding the court order, he should have allowed Mamokete to
recover her goods;
19.3 the presence of
Mamokete and the police officers was in terms of the order, and
therefore there was nothing wrong in Mamokete
being accompanied by
the police;
19.4 he could only
be granted bail in court;
19.5 the prosecutor
and the Magistrate are the ones who denied him bail although the
police were not opposing bail.
20. Furthermore and
during cross-examination, the plaintiff admitted that the signature
on the warning statement was his but denied
that the contents of the
statement were his, barring his personal details. He also did not
deny that he was asked to make a statement
or to sign the pages
preceding the last page of his statement.
21. The plaintiff
further testified that although he opened a case of assault against
the police who allegedly assaulted him at
the Tseki police station,
he did not find any joy from the police handling his case. Further
that the Independent Complaint's Directorate's
report concluded that
there was no wrongdoing on the side of the police. He furthermore
testified that on 2 August 2010 he did
inform his legal
representative about being assaulted and his injuries were still
visible.
22. The next witness
called by the plaintiff was Mphuthi, the plaintiffs younger brother.
His evidence is as follows. On the day
of the arrest he was busy
fitting windows in the dining room when four police officers
(inclusive of Sefatsa and Lempetje) approached
him and inquired about
the elders. He informed them that his mother was at the back of the
house. He later heard a commotion and
went to investigate. He saw the
police assaulting the plaintiff by banging him against a tree and
hitting him with open hands.
Lempetje warned him to go back inside
the house, which he did. The police then left the premises for a
short while and returned
with other police officers. On their return
they started hitting the plaintiff with fists whilst pushing the
plaintiff towards
the gate where two police vans were parked, banging
his head against the van. Sefatsa then came to him and tripped him
and as he
fell to the ground the police officers trampled him. Both
he and the plaintiff were put into the van and taken to court the
following
Monday and were released on 4/5 August 2010. Mphuthi
further testified that he was able to see what was going on outside
in the
yard as the house was still under construction and had no
windows. He denied assaulting Sefatsa with a trowel. He testified
that
at the police station he was the first to be assaulted by being
slapped and banged against a wall. Thereafter the plaintiff was
also
assaulted. In contradiction to his earlier evidence that he and the
plaintiff were put in a van, Mphuthi later in his evidence
in chief
testified that they were put in different vehicles.
23. During
cross-examination, Mphuthi initially said that he did not know why
Mamokete and the police were at his home but immediately
conceded
that he knew that they were there to serve a court order. He denied
that the first person the police officers spoke to
was his mother as
testified to by Sefatsa and Mamokete. Mphuthi further contradicted
the plaintiffs evidence that he found the
police and Mamokete already
at his home. According to Mphuthi, the plaintiff was at home when the
police arrived. He further testified
that it was not only Lempetje
but also his brother who chased him away when he came out of the
house to investigate the commotion
outside. He denied stabbing
Sefatsa and said that Sefatsa had wrestled with him for the trowel
and took it away. He could not explain
why Sefatsa would suddenly
wrestle with him for the trowel. He denied that when he was arrested
he was inside the garage as testified
to by the plaintiff and said
that he was in an open space next to the dining room. He further
denied being read his rights on either
arrest or when he was locked
in the cells. Although in his evidence in chief he said that when
they were taken to the police station,
they were put in different
vehicles, during cross-examination Mphuthi testified that they were
put inside the same vehicle, with
him sitting at the back of the
bakkie and the plaintiff in the passenger seat, with two police
officers on each side. Confusingly
Mphuthi testified that before
leaving his parental home, the plaintiff was initially put at the
back of the van, at which stage
his head was banged against the van,
and later brought to the front of the van. He denied that Lempetje at
any stage assaulted
the plaintiff whilst they were still at home.
Lempetje only participated in the assault of the plaintiff at the
police station.
He admitted signing a statement but testified that he
did not know what he was signing as he was confused after the assault
and
could not remember if his constitutional rights were read to him.
24. The plaintiff
called his mother, Anna Mmatshebeletso Mphuthi (“MaMphuthi”)
to testify. MaMphuthi testified that
when the police arrived at her
house, they asked for Mujeri and she told them that he does not know
him but knows of Mokgoeseng.
The police phoned the plaintiff to come
and assist. However, Mmaphuthi later testified that it was Mphuthi
who phoned the police.
When the plaintiff arrived, Lempetje showed
him a document and there was an exchange of words, which culminated
in a scuffle between
the plaintiff and the police. MmaMphuthi further
testified that the police assaulted the plaintiff and pushed him
outside the yard,
banging his head against a vehicle. She further
testified that she got back into the yard in order to assist Mphuthi
who was being
manhandled by one of the officers when he tried to
assist his elder brother. She was warned by the officer to back off.
The police
then took Mphuthi outside to one of the vans. Contrary to
Mphuthi’s evidence, MmaMphuthi testified that Lempetje
assaulted
the plaintiff by; inter alia, banging his head against a
van.
25.
The version of the plaintiff and the defendant as to whether the
plaintiff swore at the police and/or was assaulted by the police
is
mutually destructive. In
National
Employers’ General Insurance Co Ltd v Jagers
1984(4)
SA 437 (E) the court stated at 440D -G:
"... that in
any civil case, as in any criminal case, the onus can ordinarily be
discharged by adducing credible evidence to
support the case of the
party on whom the onus rests. In a civil case the onus is obviously
not as heavy as it is in a criminal
case, but nevertheless where the
onus rest on the plaintiff as in the present case, and where there
are two mutually destructive
stories, he can only succeed if he
satisfies the Court on a preponderance of probabilities that his
version is true and accurate
and therefore acceptable, and that the
other version advanced by the defendant is therefore false or
mistaken and falls to be rejected.
In deciding whether that evidence
is true or not the Court will weigh up and test the plaintiff’s
allegations against the
general probabilities. The estimate of the
credibility of a witness will therefore be inextricably bound up with
a consideration
of the probabilities of the case and, if the
probabilities favour the plaintiff, the Court will accept his version
as being probably
true. If however the probabilities are evenly
balanced in the sense that they do not favour the plaintiff’s
case more than
they do the defendant’s, the plaintiff can only
succeed if the Court nevertheless believes him and is satisfied that
his
evidence is true and that the defendant’s version is
false.”
26. The defendant’s
version, as presented by Sefatsa and Mamokete, is that when the
plaintiff found the police and Mamokete
at his home, he initially
swore at Mamokete and then at the police when they reprimanded him
for swearing at Mamokete.
27. Mamokete
corroborated Sefatsa’s version as to the swearing, the
remonstration between the plaintiff and the police. None
of the
defendant’s witnesses’ versions was faulted during
cross-examination. Both witnesses were credible and honest
witnesses
whose evidence can be relied upon. Their version is credible and
probable. Nkopane also corroborated the evidence of
Sefatsa with
regard to the arrest of the plaintiff. His evidence in this regard
ought to be accepted.
28. The plaintiff
and his witnesses were not impressive. When being asked a question
during cross-examination, in particular, the
plaintiff and Mphuthi
were uncomfortable. Mmaphuthi appeared not confident of the version
she was to present to court. The evidence
of the plaintiff and
Mphuthi was full of contradictions and inconsistencies. Their version
seems highly improbable that the police
officers would have arrested
and assaulted the plaintiff merely because he thought he was smart.
Further, their evidence is improbable
in view of the concessions made
by the plaintiff. Plaintiff seemed to tailor his evidence to the
defendant’s witnesses’
evidence particularly since he was
present in court during the defence case. According to Sefatsa and
Mamokete, the police did
not assault the plaintiff in the manner he
alleges. Their evidence is that when the plaintiff became
obstructive, the police tried
to restrain and arrest him, but he
resisted. This led to the police using some force to take him to the
police vehicle.
29. I am also not
convinced that the plaintiff was assaulted at the police station.
Bearing in mind the manner in which he alleges
he was assaulted and
the injuries allegedly sustained, it is highly unlikely that his
legal representative, Hlatshwayo and for
that matter the presiding
officer at his first court appearance would not have noticed his
injuries. The plaintiffs evidence with
regard to the assault falls to
be rejected as false.
30. On
probabilities, I am satisfied that the defendant’s version as
to the events leading to the arrest and detention of
the plaintiff is
more probable and should be accepted. With regard to the alleged
assault I am of the view that the plaintiff has
not proven on a
balance of probabilities that the assault actually took place.
31. I also found
Hlatshwayo’ to be a credible witness. His evidence that he was
not opposed to the plaintiff being granted
bail and had actually set
bail at R200.00, should be accepted. Once the docket was sent to the
prosecutor, it was not Hlatshwayo’s
call whether the plaintiff
should be granted bail or whether he should be prosecuted. According
to Hlatshwayo, the proposed bail
amount was reflected in the docket
and it was up to the State prosecutor to act on it. I am therefore
satisfied that the plaintiff
has shown not sufficient cause why the
defendant should be held liable for malicious prosecution.
32. Accordingly I
make the following order:
The plaintiffs
action on all three claims is dismissed with costs.’
N P
Mngqibisa-Thusi
Judge of the High
Court
Appearances:
For Plaintiff: Adv
Zietsman
Instructed by:
Loubser Van der Walt Inc.
For Defendant: Adv
Mangolele Instructed by: State Attorney