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[2015] ZAKZPHC 53
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Williams v Minister of Police and Others (7166/2013) [2015] ZAKZPHC 53 (7 December 2015)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE
NO: 7166/2013
In
the matter between:
PAUL
ANDREW
WILLIAMS
PLAINTIFF
and
THE
MINISTER OF
POLICE
1
ST
DEFENDANT
THE PROVINCIAL COMMISSIONER
OF
POLICE,
KZN
2
ND
DEFENDANT
MLUNGISI
WILFRED
MDLADLA
3
RD
DEFENDANT
J
U D G M E N T
Delivered
on : Monday, 07 December 2015
OLSEN
J
[1]
The plaintiff sues the third defendant, a Captain in the South
African Police Service and The Minister of Police (the first
defendant) in his representative capacity as an employer vicariously
liable, for damages for wrongful arrest and assault.
(The
second defendant, the Provincial Commissioner of Police,
KwaZulu-Natal, was unnecessarily cited.) Actions instituted
against the police for wrongful arrest and associated assault are
unfortunately a not uncommon feature of our trial rolls.
What
sets this case apart from the norm is the fact that the plaintiff
himself is a member of the South African Police Service,
and indeed
also holds the rank of Captain. The plaintiff serves in the
Crime Intelligence Unit and the third defendant in
the Public Order
Policing Unit, the latter being based at the Oribi Police Station,
Pietermaritzburg. The plaintiff is a
white male. The
third defendant is a black (Zulu) male. As will be seen, race
unfortunately features in this case.
[2]
The events which gave rise to this action took place during the night
of 2 September 2011, and spilt over into the early hours
of the
morning on 3 September 2011. According to the defendants the
plaintiff was arrested on charges of drunken driving
and crimen
injuria. The arrest was made without a warrant. The
defendants plead that the arrest without a warrant was
justified in
terms of s 40 (1) (a) of the Criminal Procedure Act. The
parties agreed that the onus was on the defendants
to establish that
fact. Despite the fact that the onus rested on the plaintiff to
establish his claim of assault, the parties
agreed that the
defendants would begin; presumably because, as will be seen, the most
substantial disputes of fact between the
parties arise in the context
of the claim for wrongful arrest.
[3]
Section 40
(1) (a) of the
Criminal Procedure Act, 1977
is to the
effect that a peace officer may without warrant arrest any person
“who commits or attempts to commit any offence
in his
presence”. No prosecution followed the plaintiff’s
arrest. The defendants must prove upon a balance
of
probabilities that the offences of drunken driving (which was
presumably intended as a label for a contravention of
section 65
(1)
(a) of the
National Road Traffic Act, 1996
) and crimen injuria were
actually committed in the presence of the third defendant who is
alleged to have arrested the plaintiff
(
Rudolph
v Minister of Safety and Security
2009 (2) SACR 271
(SCA), paras 13 and 14;
Minister
of Safety and Security v Tyulu
2009 (2) SACR 282
(SCA), paras 21 and 22). The defendants did
not plead that they relied upon the provisions of
section 40
(1) (b)
of the
Criminal Procedure Act to
justify the plaintiff’s
arrest. It was accordingly unnecessary during the trial to
explore the reasonableness of any
suspicion which the third defendant
may have harboured when the plaintiff was arrested.
[4]
Although, as I have already stated, the defendants’ evidence
was led first, I find it convenient to commence a consideration
of
the facts of this matter with an account of the evidence led for the
plaintiff.
[5]
Although he is stationed in the Crime Intelligence Centre in Durban
the plaintiff resides in Pietermaritzburg. He has
held the rank
of captain for some 15 years. On the evening of 2 September
2011, a little after 6pm, he and a family friend,
Mr Mondli Mkhize,
arrived at a Spur restaurant for dinner. The plaintiff was off
duty. They had a meal in the course
of which the plaintiff
drank two Hansa beers and two glasses of wine. They left the
restaurant at about 8:15pm. The
plaintiff gave Mr Mkhize a lift
home. Mr Mkhize lives in Globe Road, Scottsville,
Pietermaritzburg. (Although it was
not known to either of the
plaintiff or Mr Mkhize at the time, the third defendant, who neither
of them knew, lived a little up
the road from Mr Mkhize at 83 Globe
Road.) The plaintiff dropped off Mr Mkhize at about 8:45pm. The
plaintiff left travelling
up Globe Road in the direction of number
83. Mr Mkhize, who gave evidence for the plaintiff, stated that
as he was opening
his gate he noticed that there were car lights
shining at a point some distance from him in Globe Road. As the
plaintiff left he
was travelling in the direction of the lights.
Mr Mkhize thought nothing of it and entered his premises.
[6]
The plaintiff could also see the car lights as he proceeded up Globe
Road. When he got nearer he saw that the lights emanated
from
police vehicles, one of which (a kombi) was so placed in Globe Road
that it was not possible for the plaintiff to drive around
it.
The blue lights of these vehicles were not on. There were a
number of policemen standing around. The plaintiff
drove up to
the nearest of them and wound down his window and asked them if the
kombi could be moved. According to
the plaintiff these
policemen simply looked down at him and then carried on their
conversation, ignoring him. Then, reacting
(as he described it)
automatically, the plaintiff shouted out words to the effect “move
the bloody car”. This
did not elicit the reaction he
expected. His car door was immediately flung open and the
policemen grabbed him to haul him
out of the car; one entered the
front passenger seat to shovel him out. The plaintiff was only
wearing a t-shirt and shorts,
and the thongs which were his only
footwear were left in the car as he was hauled out. He was
grabbed around the neck and
throat and pulled out of the car.
During this fracas all he heard was loud talking in Zulu. (It
is common cause
that all the policemen on the scene, save for the
plaintiff, were Zulu.) The plaintiff shouted out that he
himself was a
policeman from Crime Intelligence. Someone
shouted back “I don’t care who you are”. He
was handcuffed
with his hands behind his back. He was pushed
against his car and the handcuffs damaged his car, giving rise to a
minor claim
in this action. From there he was dragged and
pulled along to the back of a police car which was a double-cab
bakkie with
an enclosing canopy. He was trying to walk.
The distance was probably 8 or 9 metres. From his description
one
might say that he was hustled towards the bakkie faster than he
could manage to walk with his hands cuffed behind his back.
This process probably caused the abrasions and light injuries
to his toes which were proved by way of the plaintiff’s
own
evidence, and that of a Dr Smit who examined the plaintiff and took
photographs of his injuries the next day.
[7]
At the back of the bakkie the plaintiff was instructed to get in.
He could not raise a foot high enough to step onto the
platform.
As he was trying he felt a hard shove in his back which flung him
into the back of the van. He believes there
was a wheel rim or
a wheel rim and tyre in the van (which is denied by the defendants).
Whether that be so or not, his head
was struck as he was flung into
the van leaving him dazed, lying face down with his hands cuffed
behind his back. Perhaps
because his head had been struck in
this fashion, the plaintiff was unable to say how long he lay there
before the van was driven
off. All he can say is that it felt
like a long time. (It must have been, given that it was firmly
established that
the plaintiff was only extracted from the bakkie at
the Daymed Centre, Pietermaritzburg, where he was taken to have a
blood sample
drawn, a little before 23h42 on the night in question.)
[8]
Eventually the plaintiff heard the doors of the police van being
closed and it drove off. He was unable to avoid sliding
from
side to side, as the bakkie was driven in what the plaintiff regarded
as a rough manner. According to the plaintiff
the vehicle was
not driven with care. It seemed to him that it was being driven
deliberately in a manner which would cause
harm to someone lying face
down on the floor with his hands handcuffed behind his back.
The evidence of the defendants is
that there were three police cars
outside the third defendant’s house at 83 Globe Road that
evening; two kombis and the police
bakkie in which the plaintiff had
been placed. This convoy proceeded first to the Alexandra
Police Station where a kit for
the taking of a blood sample was
obtained, whereafter the entire convoy proceeded to the Daymed
Centre. The plaintiff cannot
recall but does not dispute that
this presumably brief interruption in the journey to the Daymed
Centre occurred.
[9]
The plaintiff was extracted from the police bakkie on arrival at the
Daymed Centre, that being the first time that he had emerged
from it
since he had been put in the bakkie at Globe Road. According to
the plaintiff the handcuffs were removed once he
was inside the
centre and after a short delay he was examined by a doctor of foreign
extraction and a nurse who appears to have
done all the talking.
A form was filled in and it has been produced in the bundle of
documents. Witnesses spoke to
only a few passages in the form.
The form reveals that the examination took ten minutes between 23h42
and 23h52. The
third defendant and another police official who
had been present at the scene in Globe Road (Warrant Officer Mbongwa,
who gave
evidence) were present in the consulting room whilst the
examination was underway and the blood taken. The form
resulting
from this examination is unsatisfactory. It is plain
that more than one person wrote on it. Under the heading
“voluntary
statement as to consumption of alcohol during the
previous 24 hours” one sees written “1 sip of whisky when
arrested”.
The plaintiff denied having said that.
Indeed, the proposition that the plaintiff had a sip of whisky when
he was arrested
is preposterous on either version of the
circumstances in which the plaintiff came to be arrested.
[10]
Nevertheless, it is noted that as regards his speech, his gait on
walking and his gait on turning, the plaintiff’s condition
was
found to be “normal”. That this was an accurate
record of the condition of the plaintiff that night was not
disputed
by any of the defendants’ witnesses.
[11]
According to the plaintiff’s evidence he was co-operative
during the course of his examination at the Daymed Centre.
But the
third defendant suggested otherwise in his evidence. It is
worth noting that the form to which I have referred records
that the
plaintiff was co-operative.
[12]
According to the plaintiff at the Daymed Centre he informed the nurse
that he wished to be examined by a doctor because he
had been
injured. The nurse replied that he either had to produce a
deposit of R300,00 or his medical aid card, something
which he was
unable to do as the police had charge of his possessions, including
his wallet.
[13]
According to the third defendant’s evidence the fact that the
plaintiff was a member of the South African Police Service
was first
revealed to him during the course of the medical examination at the
Daymed Centre. It is surprising to find, therefore,
that there
is no dispute about the fact that after the medical examination the
plaintiff’s hands were once more handcuffed
behind his back.
He was then again thrust into the back of the police bakkie, but,
according to the plaintiff, with less
force than had been used on the
first occasion. This time he found himself lying on his back
with his handcuffed hands underneath
him. Something to the
effect of “Oh, you are trying to be clever” was said to
him, the plaintiff assumes because
he had asked to be medically
examined. The police convoy then proceeded from the Daymed
Centre to the Alexandra Police Station.
The plaintiff’s
evidence is to the effect that during the course of this trip the
bakkie travelled fast at times and slow
at others, went too fast over
humps, and so on. He suffered excruciating pain as when he was
elevated his body would land
firmly on his handcuffed hands. To
try and alleviate this he lifted his legs so as to place his feet
against the two upper
rear corners of the canopy, to thereby lift his
body off his wrists, but he was unable to maintain that position
because of the
movements of the vehicle.
[14]
When the convoy arrived at the Alexandra Police Station the plaintiff
was taken in and the handcuffs were removed. He
was then placed
in a holding cell. There was a considerable delay whilst the
third defendant and other members wrote out
statements explaining the
events of the evening. At about 2 o’clock or little
thereafter on the morning of 3 September
2011 a lieutenant stationed
at the police station handed the plaintiff an envelope containing his
cell phone and wallet.
The plaintiff was able to telephone a
colleague who served with him in the same unit, who arrived a little
after 3 o’clock
in the morning. This colleague withdrew
the money (R1000,00) necessary to pay the plaintiff’s police
bail, and he was
released at about 4 o’clock in the morning.
[15]
The plaintiff decided not to wash or change until he had been
examined by a doctor. This examination was conducted by
Dr Smit
at about 10:15am on 3 September 2011. Each of the plaintiff’s
injuries (comprising multiple abrasions, circumferential
abrasions on
his wrists and multiple bruises were described, and the doctor took
photographs of the injuries which he identified
in evidence).
There is no need to say any more about the injuries and the
photographs of them, than that they appear consistent
with the
plaintiff’s description of the events of that night. Dr
Smit was not asked to express any opinion, no notice
in that regard
having been given. The question of the quantum of any damages
to which the plaintiff may be entitled has been
left over for later
consideration.
[16]
Three witnesses were called for the defendants: the third defendant,
Warrant Officer Mbongwa and Constable Makhulu. According
to the
third defendant, after inspecting the members of his squad at the
Oribi Police Station and briefing them on their duties
for the night
(which, according to Warrant Officer Mbongwa, was to be public order
policing at Mpumalanga necessary as a result
of taxi violence), at
8:45pm on 2 September 2011 the third defendant went home to Globe
Road in Scottsville, which is about four
and a half kilometres away.
He had to fetch something there. When he arrived he parked his
police bakkie at the side
of the road. Before he could get out
another vehicle (a BMW) approached from the front and stopped next to
his (the third
defendant’s) vehicle in a way which prevented
the third defendant from opening his door. He noticed that the
person
was light skinned. (I will call the person in the BMW
the plaintiff, because it is the third defendant’s evidence
that
it was the plaintiff. The plaintiff was not known to the third
defendant at that time.)
[17]
Windows were wound down. According to the third defendant the
plaintiff asked what he (the third defendant) was doing
there during
working hours. The third defendant asked the plaintiff more
than once who he was and to explain himself to the
third defendant,
but this was not done. The plaintiff said that there was no
crime at Scottsville and that he did not know
what the third
defendant was doing there. He began swearing at the third
defendant – he told the third defendant that
“we black
people, if we are on duty, will go to our homes and sleep if we are
working night shifts”. He continued
to swear at the third
defendant. The plaintiff called the third defendant a “useless
k….r” (a derogatory
racist term for a black person).
The plaintiff continued, calling the third defendant a “c..t”
(a derogatory
reference to female genitals) and a “donkey”.
This language was repeated.
[18]
Confronted with these circumstances the third defendant radioed his
station to ask others to come and assist him.
At about
this time the BMW moved a little forward as a result of which the
third defendant could get out of his vehicle.
The plaintiff
then reversed back again and said that he wanted to take the number
plate of the third defendant’s vehicle
(which was the bakkie in
which the plaintiff was later transported). The third defendant
invited him to take it down whereafter
the plaintiff drove off.
[19]
According to the third defendant whilst the vehicles were parked
close together he had noticed that the plaintiff’s breath
smelt
of alcohol. He said that it came to him that he should “call
other police members so that they could come and
try to prove that he
had been drinking or he had not”.
[20]
Thereafter the third defendant’s colleagues arrived.
[21]
According to W/o Mbongwa he was busy booking out rifles to the unit
members when he received a message that the third defendant
was
asking for back-up at his home. Then the message was that
back-up was no longer required. Then it was required
again.
(It is not possible to reconcile this evidence of uncertainty with
the third defendant’s evidence.) According
to Const.
Makhulu the urgency of the call-out meant that the issue of rifles
had to be stopped before it was complete. The
entire unit (8 or
9 men, some armed with rifles) then went off to the third defendant’s
house in Globe Road in two police
kombi vans which the witnesses
called “Quantums”. ( I will call them “vans”
to distinguish them from the
police bakkie already mentioned.)
According to each of the defence witnesses the vans were parked on
the side of the
road in front of the third defendant’s bakkie,
leaving the road clear.
[22]
According to the defence witnesses, whilst the third defendant was
explaining to W/o Mbongwa and the other police present why
they had
been called, the plaintiff returned, driving up to them in his BMW.
The plaintiff wound down his window and called
out “foolish
captain” or “stupid captain”. W/o Mbongwa went up
to the plaintiff to ask him what his problem
was. The plaintiff
said that he did not want to talk to the warrant officer, but wanted
to talk to the “useless c..t
captain”. (The phrase
“stupid captain” was also mentioned in evidence.)
According to W/o Mbongwa
the third defendant then approached closer
and informed the plaintiff that he (the third defendant) was
arresting the plaintiff
as the plaintiff had been swearing at him.
The third defendant’s version is slightly different, it being
that W/o Mbongwa
told him that he intended to arrest the plaintiff
upon the basis that he was suspected of having been drinking and on
the basis
of his behaviour. Be that as it may the two witnesses
agree that it is the third defendant who announced the plaintiff’s
arrest although it was only W/o Mbongwa who claimed that in the
process the third defendant had read the plaintiff his rights.
All the defence witnesses state that when told to get out of his car
the plaintiff refused to do so, clinging onto the steering
wheel
despite being implored to obey the instruction; as a result of which
the plaintiff had to be forcefully removed. Each
of the defence
witnesses states that as he emerged from the car the plaintiff fell
onto his back on the edge of the road and had
to be turned over in
order to have his hands cuffed behind his back. It is difficult
to resist the conclusion that this description
of the event, as well
as other features of the evidence of the defence witnesses, was
rehearsed. The plaintiff denies that
he fell to the ground (on
his back or otherwise) after he was extracted from the car. As I
understood his evidence he was not given
an opportunity to get out
the car on his own. He was not informed of his rights.
According to the plaintiff he
was simply hustled along, faster than
he could walk, to the bakkie and thrown in the back.
[23]
The third defendant and W/o Mbongwa were asked to explain why, at
least when (as they say) the plaintiff was formally arrested,
and
when, according to W/o Mbongwa, the plaintiff was read his rights,
there was no query as to the identity of the plaintiff.
Neither
offered an explanation for this omission. (Of course on the
plaintiff’s version the question was unnecessary
as he had
already disclosed his identity.) In my view it is improbable
that police officers of the standing of the third
defendant and W/o
Mbongwa would not have asked the plaintiff to disclose his identity.
There was a peculiar occurrence, according
to the defence, whilst the
plaintiff was lying in the back of the police bakkie outside the
third defendant’s house. According
to the defence
witnesses, a Colonel Spalding of the South African Police Service
came on the scene and asked what had happened.
The third
defendant briefed him. Colonel Spalding went to the back of the
bakkie, opened it and “greeted the suspect”.
According to the third defendant Colonel Spalding then said that he
(the third defendant) must “do the necessary”.
The
plaintiff has no memory for this occurrence. No explanation was
furnished in evidence for the arrival of Colonel Spalding.
Perhaps it was fortuitous. But if Colonel Spalding bothered to
go to the back of the vehicle and “greet” the
plaintiff,
it seems improbable that he would not have asked the plaintiff who he
was. (Although the plaintiff used words
such as “concussed”
and “dazed” when describing the result of him striking
his head when he was thrown
into the bakkie, and confessed to have
lost track of time, he does not claim to have been rendered
unconscious. It is not
the defendants’ case, certainly,
that the plaintiff was lying unconscious in the back of the bakkie.)
According to
the evidence of W/o Mbongwa, the colonel who arrived on
the scene wanted to see if he knew who the person was in the back of
the
bakkie. He looked at him and said that he did not know
him. It is not at all clear why Colonel Spalding would have
wanted to do that if he had not been told that the white man lying
handcuffed in shorts and a t-shirt in the back of the bakkie
either
was or claimed to be a police captain. I say “white man”
because this case undoubtedly has a most unfortunate
racial element.
If the defence version is true then the plaintiff’s behaviour
cannot be described as anything other
than that of a racist. If
the defence version is not true then the police who were at the
scene, or at least those who gave
evidence, conspired to accuse the
plaintiff of racist behaviour and conduct in order to explain the
predicament in which they found
themselves. One way or the
other, and bearing in mind that the senior players in this are two
commissioned officers, the
evidence led at trial reflects most poorly
on the South African Police Service.
[24]
There is a convergence in the evidence of the plaintiff and the
defendants, more or less from when the plaintiff was first
locked in
the back of the police bakkie outside the third defendant’s
house, in so far as the order of events is concerned.
There are
differences of detail which must be canvassed and considered in order
to approach the matter holistically and reach a
conclusion on the
issues of fact which have been raised in this action. It is
convenient when doing this to deal with topics.
TIMING
AND DELAY
[25]
The cross-examination of the third defendant commenced with the
subject of timing and delay. The plaintiff’s version
is
that he came upon the scene where he was arrested at about 8:45pm.
As already stated it is clear that the medical examination
of the
plaintiff at the Daymed Centre only commenced a few minutes before
11:45pm. The third defendant was asked whether
he agreed that
the arrest took place at some stage between 8:30pm and 9:00pm.
He denied that and said that it occurred after
10pm. The third
defendant became most evasive when answering further questions about
time. He complained that he could not
remember what time the kit was
fetched from the Alexandra Police Station en route to the Daymed
Centre. He claimed to be
unsure as to the time at which the
convoy arrived at the Daymed Centre, saying that he was not sure but
that it was after 10pm.
He then said that he could not remember
what time he had gone home to fetch his things. His written
statement (which he confirmed)
was then put to him and there he had
stated that he had gone home at 8:45pm.
[26]
The third defendant said that he was aware of the two hour rule
applicable when blood specimens are taken with a view to proving
a
concentration of alcohol in the blood of a person who is driving.
When it was put to him that he was strangely indifferent
to the time
delay which occurred in this case his answer was that no delay had
been caused by him and that the delay was mostly
because of the
plaintiff, who was uncooperative from the beginning. He then
added that the argument he had had with the plaintiff
took time, and
that the response to his call for assistance was somewhat delayed (an
allegation which was not supported by the
evidence of W/o Mbongwa and
Const Makhulu.)
[27]
On either version the time which elapsed from when the plaintiff was
forcibly removed from his vehicle to when he came to be
lying down in
the back of the police bakkie would have only been a few minutes.
According to W/o Mbongwa’s statement
(which he confirmed in
evidence) the call out to which he responded was made at about 9pm.
If one were to accept that, he
and his colleagues only had four and a
half kilometres to travel to the third defendant’s house;
and the third defendant
was, on the defendant’s version, still
explaining to W/o Mbongwa and the others what had happened when the
plaintiff returned
to the scene. The arrest, on that version,
had to have occurred substantially earlier than 10pm.
[28]
The plaintiff’s warning statement records that he was arrested
at 9pm. The medical form filled in at Daymed Centre
records
that the information given to the doctor was that the “occurrence”
had occurred at 9pm. This information
would have been given by
one of the plaintiff, the third defendant or W/o Mbongwa, all of who
were present during the ten minute
consultation with the doctor and
the nurse.
[29]
I have come to the conclusion that it is safe to say that there was a
delay of at least two hours between the time of the plaintiff’s
arrest and his arrival at the Daymed Centre. In my view the
contention of the third defendant that most of this delay could
be
laid at the door of uncooperativeness on the part of the plaintiff is
improbable. The plaintiff cannot be expected to
explain the
delay as matters were obviously out of his hands.
[30]
It is disturbing that an acceptable explanation for the delay was not
forthcoming from the third defendant or his witnesses.
One is
left to speculate. Was it a strange indifference to delay
notwithstanding that the third defendant denied that he
had such an
attitude? Was it the fact that, contrary to their evidence, the
third defendant and W/o Mbongwa knew that they
had a police captain
handcuffed in the back of the van, and did not know quite what to do
about it? The failure of the defence
witnesses properly to
explain what happened that evening to cause this inordinate delay
does nothing to support a conclusion that
they should be regarded as
credible and reliable. It is significant that the third
defendant’s unit never got to perform
its duties at Mpumalanga
that night. The entire unit was instead dedicated to dealing
with a single unarmed allegedly drunk
and foul-mouthed person for the
whole night. He posed no danger to anyone.
ASSAULT
: THE DRIVING OF THE POLICE BAKKIE
[31]
I have already furnished an account of the plaintiff’s
perception of how the police bakkie was being driven whilst he
was
handcuffed in the back. The bakkie was being driven by
Constable Makhulu. The third defendant sat in the front
passenger seat. When challenged with the plaintiff’s
complaints as to the manner in which the bakkie was driven the
answer
given by them was that it was driven “normally”.
Counsel for the defendants correctly accepted the proposition
that if
a suspect who has been handcuffed with his hands behind his back is
transported in the back of a bakkie which has no restraints
to ensure
that the suspect is not to get thrown around, then it is the duty of
the driver of such a vehicle to ensure that he drives
not “normally”,
but with sufficient care and restraint so as to ensure that the
suspect does not get thrown around
and thereby suffer pain and
injury.
[32]
Insofar as what was meant by driving “normally” is
concerned, it appears that the three police vehicles were driving
in
convoy, with one of the vans in front and the other behind the
bakkie. If that was the case the pace of the drive was
probably
dictated by the driver of the front van, who had no particular
responsibility of being concerned for the welfare of the
plaintiff in
another vehicle.
[33]
During the course of cross-examination of both the third defendant
and Constable Makhulu, counsel for the plaintiff produced
a document
entitled “movement report” which relates to the bakkie in
which the plaintiff was transported. This
document was supplied
by the defendants’ attorneys to the plaintiff’s
attorneys, presumably at the request of the latter.
It appears
to be the product of a monitoring device fixed in the police bakkie
which is able to monitor the manner in which the
vehicle is driven
and the speed at which it is driven, as well as to track its
whereabouts, presumably by some sort of satellite
navigation
feature. No evidence was led to prove the level of accuracy
which can be attributed to the information contained
in the document,
nor to prove the authenticity of the document (to the extent that it
might have required authentication despite
the fact that it was
produced by the defendants’ attorneys). Plaintiff’s
counsel did not rely on the accuracy
of this document in argument.
But he did use it in cross-examination, without objection from
defendants’ counsel. The
two defence witnesses were asked
to explain certain entries such as “harsh braking”,
“incident”, and fluctuating
speeds which were, on the
face of it, inappropriately high at times. These generated
concessions that there might have been
harsh braking in a certain
road in Pietermaritzburg where there are always a number of
prostitutes in the road at night, who have
to be avoided; and
an explanation that along another road avoiding action had to be
taken because there were three BMWs racing.
Constable Makhulu
went further and agreed that there were in fact speed humps on
certain of the roads which he had to traverse.
[34]
The explanation given on behalf of the defendants for why the
plaintiff was placed in the back of the bakkie lying with his
hands
handcuffed behind his back during the course of both trips (i.e. even
after, on their own versions, the third defendant and
W/o Mbongwa
were aware of the fact that the plaintiff was a police captain),
instead of being placed, handcuffed if necessary,
in the back seat of
the double cab, was that police regulations required it. Those
regulations were not produced in evidence.
I reject W/o
Mbongwa’s additional explanation that the plaintiff was in such
a state of agitation that the third defendant
and Constable Makhulu
would not have been able to handle him inside the cab. I do not
see what threat the plaintiff could
have posed to the driver and the
front seat passenger whilst he (the plaintiff) sat in the back seat
of the cab with his hands
cuffed behind his back. Furthermore,
this suggestion by W/o Mbongwa is contradicted by his evidence to the
effect that the
plaintiff ceased to be uncooperative once his hands
had been cuffed outside the third defendant’s house.
[35]
In my view the plaintiff has established upon a balance of
probabilities that he was assaulted to the extent that his claim
for
assault rests on the infliction of injury and pain during the course
of the journey from the third defendant’s house
to the
Alexandra Police Station, from there to the Daymed Centre, and on the
return journey to the Alexandra Police Station.
Given that they
knew throughout these journeys that the plaintiff was lying
unrestrained in the back of the vehicle, quite unable
to protect
himself against being thrown around because he was handcuffed, both
the third defendant and Constable Makhulu had to
know that anything
other than most careful driving would result in pain being inflicted
on the plaintiff, and very probably in
injury. It is correct
that at least the injuries to one side of the plaintiff’s face
were, on his own version, caused
when he was thrown into the vehicle
in the first instance, and that the injuries to his toes were caused
when he was being dragged
faster than he could walk from his car
(where he had been handcuffed) to the bakkie. But the scope of the
visible injuries to the
plaintiff cannot be explained, or certainly
cannot be explained in full, by the defendants’ contention that
they might have
been caused when he was forcibly removed from his
car.
THE
EVENTS AT THE DAYMED CENTRE
[36]
I see no reason to deal at any length with the evidence relating to
what happened at the Daymed Centre except to the extent
that it is
material to issues of credibility. Besides the contention of
the third defendant that the plaintiff uttered threats
to “get
him” at the Daymed Centre in the presence of the third
defendant’s subordinates (which was disputed by
the plaintiff),
and the fact that it was only at the Daymed Centre that the plaintiff
learned of the identity of the third defendant,
two disputes about
what happened there appear to me to be material. The one
relates to the defendants’ contention that
in the matter of
submitting to the blood test and examination, the plaintiff was
uncooperative; and the other relates to the denial
of the plaintiff’s
evidence to the effect that he had asked to be medically examined
whilst at the Daymed Centre.
[37]
The third defendant was cross-examined on both these issues. In
the course of that cross-examination he was referred
to certain
entries in the investigation diary and a related affidavit delivered
as a statement by the person who appears to have
been the attending
nurse. The first entry in the diary records the need to
interview the doctor and the nurse because of
a contention already
made, apparently, that in fact the plaintiff was cooperative with the
doctor and the nurse.
[38]
A subsequent entry on the investigation diary reads as follows.
“
Contacted
Mrs Shelley at Daymed. She said the accused was not
uncooperative but he wanted to explain to the doctor what happened
to
him when he was arrested, not that he was giving them resistance.
She promised me a statement on Monday, 2011/09/19”.
The
statement from the nurse (attested to on 19 September 2011) was also
put to the third defendant, and it records that the accused
was
cooperative.
[39]
The third defendant was unable to offer any explanation for these
entries which coincide with the plaintiff’s evidence,
and not
his. I can best describe his reaction to these questions as
embarrassed discomfort.
ASSESSING
THE EVIDENCE
[40]
The plaintiff is English-speaking. He speaks eloquently.
He was polite throughout his evidence. His evidence
was
entirely untouched by cross-examination. By the time he gave
evidence he had heard the evidence of the defendants’
witnesses
and was well aware of the fact that the court was confronted with the
difficulty that one or the other side was not telling
the truth
concerning not only details, but also substantial elements of the
accounts given of the events of that night. Nevertheless
the
plaintiff made no attempt to dramatise or exaggerate his account of
events, perhaps with a view to influence the court to his
side.
His tone was measured and matter-of-fact. If it were
permissible to consider the plaintiff’s evidence in
isolation
(which it plainly is not) one would conclude that he was a credible
and reliable witness whose version had to be accepted.
[41]
Comparisons of demeanour in this case are difficult. The
defence witnesses did not have the advantage of giving evidence
directly in their own language; nor, I suspect, of the plaintiff’s
eloquence. Having said that I must nevertheless
observe that I
gained the impression in the case of all three witnesses called for
the defendants that much of what they said was
rehearsed. It
was especially noticeable in the case of the third defendant that he
became evasive and uncomfortable when,
under cross-examination, the
questioning traversed ground (such as the explanation for delay, a
topic I have already dealt with)
for which the third defendant
appeared not to have prepared himself. There were times when he
was giving evidence that W/o
Mbongwa looked down, averting his gaze
from anyone in the court, and spoke more softly with a distinctly
embarrassed smile on his
face. I could not say whether that was
because he was not telling the truth or whether it was because he
realised just how
poorly the events of that night reflected on the
institution which he served. I find it difficult to believe
Constable Makhulu’s
assertion that he had never discussed this
matter with the third defendant who is still his commanding officer.
[42]
In general terms the three witnesses called by the defendants
corroborate each other. The corroboration of the third
defendant’s version of his first meeting with the plaintiff
that night is however circumstantial, in the sense that it is
said to
have generated the arrival at his home of the other two witnesses in
the company of the entire unit under the third defendant’s
command that night. In the case of the plaintiff it is only
with respect to that first crucial encounter that his evidence
(that
it did not occur) is corroborated by Mr Mkhize, who saw the lights of
a number of vehicles in Globe Road when he was dropped
off there by
the plaintiff. In relation to the other disputes which I have
already discussed, it is the plaintiff’s
evidence, and not that
of the witnesses called by the defendants, which is supported by
undisputed facts such as the medical form
filled in at the Daymed
Centre, the affidavit by the nurse as well as the associated
occurrence book entries, and the injuries
proved to have been
suffered by the plaintiff.
[43]
As already mentioned the plaintiff is a man who has held the rank of
Captain in the South African Police Service for 15 years.
In my
view it is inherently improbable that such a man would have behaved
as the third defendant said he did during the alleged
first encounter
between those two men. It is not impossible, but certainly
improbable, that a man capable of the appalling
behaviour attributed
to him by the third defendant could have survived in the South
African Police Service as long as the plaintiff
has, and what is more
at the rank of Captain for 15 years. I do not overlook that the
plaintiff had to concede that he made
a fundamental mistake that
night when, making his second request for one of the vans to be
moved, he shouted out “move that
bloody car”.
Whilst what followed, on the plaintiff’s version, cannot be
excused, one understands that the police
officers who heard that
would be singularly unimpressed with that show of arrogance from a
white man sitting in his BMW dressed
in a t-shirt and shorts.
How were they to know that they had just received an instruction from
a commissioned police officer.
[44]
Reverting to the defendants’ version, it is perhaps even more
improbable, if there was a first encounter, that the plaintiff
would
return to the scene, now occupied by two more police vehicles and
eight or nine more policemen, some of whom were armed with
rifles,
and continue as he had done during the first encounter.
[45]
On the defendants’ version all of this is explained by the fact
that the plaintiff was drunk. But that is in my
view an
exercise in circular reasoning. There is no evidence before the
court that the plaintiff was drunk. The defendants’
witnesses say that his gait and speech were normal. They offer
no other reason for why they thought the plaintiff was drunk
except
for the outrageous behaviour they attribute to him. The doctor
who examined him at Daymed was not called. There
is no evidence
that the results of the plaintiff’s blood test ever emerged.
Nothing was produced in evidence.
Mr Mkhize was asked in
cross-examination about the plaintiff’s state of sobriety that
night. His answer was that the
plaintiff was fine. There
was no evidence that when the plaintiff drove his car up to the
defendant’s house on the
occasion of the disputed first
encounter, or on the occasion of the second encounter, that he was
driving erratically or abnormally
in any way. The third
defendant’s own evidence was that when he smelt alcohol during
the first (disputed) encounter,
one of the reasons why he wanted his
men to join him there was to see what they thought about the state of
the plaintiff’s
sobriety. (As to what is ordinarily
necessary to establish driving in contravention
s65
(1) (a) of the
National Road Traffic Act, 1996
, see
Minister
of Safety and Security and Another v Swart
2012
(2) SACR 226
(SCA) and
S
v Mzimba
2012
(2) SACR 233
(KZP).)
[46]
In my view one has to conclude that if the plaintiff harboured the
sort of racist attitudes and resentments which the defendants’
witnesses attribute to him, then, given his long career in the South
African Police Service in modern times, he would have had
to be very
intoxicated indeed before he would reveal these inner feelings by
behaving as the defendants say he did on the night
in question.
I accordingly reject the propositions that, on the one hand,
drunkenness explains what is otherwise wholly improbable
conduct on
the plaintiff’s part; and on the other hand that the conduct
attributed by the defendants’ witnesses to
the plaintiff proves
that he had to have been drunk when he was behind the wheel of his
car.
CONCLUSION
[47]
I conclude that this case must be decided on the plaintiff’s
version. The defendants have failed to prove
that either
of the offences for which they arrested the plaintiff without a
warrant occurred in their presence or at all.
The plaintiff’s
claim for unlawful arrest must accordingly be sustained.
[48]
It is a consequence of this finding that all the force exerted on the
plaintiff that night falls within the scope of his claim
for assault,
and that all the injuries he sustained are the product of those
assaults, perpetrated by members of the South African
Police Service
in the course and scope of their employment as such. The same
goes for the minor claim for damage to the plaintiff’s
vehicle
which occurred when he was pushed against it in the course of his
arrest.
[49]
In his particulars of claim the plaintiff sought judgment against the
first defendant, and only in the alternative against
the third
defendant. The first defendant’s vicarious liability has
been established, and there is accordingly no need
to consider the
scope of the third defendant’s liability.
[50]
Counsel agreed in argument that if I should find for the plaintiff at
this stage, I should simply record (as I do) that the
plaintiff is
entitled to an award of costs to date in his favour, but that I
should not now make such an order. The reason
for this is that
the quantum of the plaintiff’s claims may prove to be such as
opens the door to an argument on the first
defendant’s part
that the costs should be taxed on a Magistrates’ Court scale.
I
accordingly make the following orders.
1.
It
is declared that the first defendant is liable to pay damages in such
amounts as the plaintiff may be able to prove arising from
the
assaults on the plaintiff, the arrest and detention of the plaintiff,
and the damage to the plaintiff’s motor vehicle
which occurred
on the 2
nd
and 3
rd
September 2011, and which are pleaded in paragraph 6 of the
plaintiff’s particulars of claim dated 24 June 2013.
2.
The
trial is adjourned to a date to be arranged for the determination of
the quantum of the plaintiff’s claims.
___________________
OLSEN
J
Date
of Hearing:
WEDNESDAY,
11 NOVEMBER 2015
to
FRIDAY, 13 NOVEMBER
2015
Date
of Judgment: :
MONDAY, 07 DECEMBER 2015
For
the Plaintiff :
MR HATTINGH
Instructed
by:
STOWELL & CO.
PLAINTIFF’S
ATTORNEYS
295 PIETERMARITZ
STREET
PIETERMARITZBURG
(Ref.: A R
IRONS/WIL342/0001)
(Tel No.: 033 –
845 0500)
For
the State:
Ms KHUMALO
Instructed
by:
STATE ATTORNEY (KZN)
DEFENDANTS’
ATTORNEYS
(REF.: MR E K SHEZI
– 32/1862/12/W/P19)
c/o CAJEE SETSUBI
CHETTY INC
180 BOSHOFF STREET
PIETERMARITZBURG
(Tel.:
033 – 345 6719)