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[2015] ZAKZDHC 48
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Khumalo v Minister of Safety & Security (458/2010) [2015] ZAKZDHC 48 (4 June 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
LOCAL DIVISION, DURBAN
Case
No: 458/2010
DATE:
04 JUNE 2015
NOT
REPORTABLE
In
the matter between:
NHLAKANIPHO
PHILANI
KHUMALO
................................................................................
Plaintiff
And
MINISTER
OF SAFETY &
SECURITY
...............................................................................
Defendant
JUDGMENT
Gorven
J:
[1]
On 13 November 2009, at about 23h30, the
police attended to a complaint of disturbing the peace at a
residential home occupied as
communal lodgings. The members of the
Berea police station had requested the assistance of the Public Order
Policing Unit (the
Unit). On their arrival, loud music was emanating
from the premises. After the police had intervened, three people were
arrested
and taken to the Berea police station and some sound
equipment was taken as an exhibit. One of those arrested was the
plaintiff
who was arrested by Sergeant Pitt of the Unit. The latter
preferred charges against the plaintiff, one of which was that he had
obstructed the course of justice. Two of them were released on bail
after being charged at the Berea police station. The plaintiff
was
taken from there to CR Swart Square, held overnight, returned to the
Berea police station the following morning and released
on bail. The
charges against him were not pursued.
[2]
The plaintiff claimed damages arising from
the incident in the sum of R200 200.00 made up as follows:
a.
General damages for past pain and shock,
deprivation of his liberty, impairment of his dignity and
self-esteem, assault and contumelia
R100 000.00
b.
Malicious arrest, detention and prosecution
R100 000.00
c.
Past medical expenses R 200.00
TOTAL
R200 200.00
[3]
Two entirely different stories emerged as
to the events relating to the arrest, with virtually no intersection
between them. The
version of the defendant, who began leading
evidence, was testified to by Sgt Pitt. Another police member gave
evidence but this
related largely to formal evidence of the music
equipment being entered into the exhibit register and the like. He
could add nothing
to the circumstances of the arrest of the
plaintiff.
[4]
Sgt Pitt said that, on his arrival, many
people were milling around the street and excessively loud music was
being played. They
entered the premises and requested the Disc Jockey
to switch off the music. They also requested the partygoers to
disperse. The
plaintiff, however, intervened, using a barrage of
abuse, including calling the police ‘pigs’ and inciting
the crowd
to carry on partying and not to disperse. The plaintiff was
told not to interfere and the police went to switch off the music
themselves
and close the party down but the plaintiff interfered and
pushed Sgt Pitt. The latter warned him that if he continued, he would
be arrested but the plaintiff continued to push him. Sgt Pitt then
informed him that he was being placed under arrest whereupon
the
plaintiff turned tail and ran out of the back door of the house into
the back yard. Sgt Pitt followed and tackled him, causing
him to fall
onto the grass. The plaintiff then started fighting with Sgt Pitt
and, with assistance from other police members, the
plaintiff was
handcuffed. He was then placed in a van from the Berea police station
and taken to that station which was about 100
metres away. There Sgt
Pitt communicated his constitutional rights to him, made a statement
and charged him. Sgt Pitt then left
him at that police station and
had nothing more to do with him.
[5]
The plaintiff’s version was that he
and a friend went to the property in question at about 19h00 that
evening but, after a
short while, he left and visited his girlfriend.
He returned later and found police vehicles outside and police
members in the
lounge where they were disconnecting the speakers from
the sound system and arresting the owner of the sound equipment. They
were
wearing bullet proof jackets and carrying AK47 weapons. The
owner was pleading with the police to consider making other
arrangements
but his pleas were falling on deaf ears. The plaintiff
then intervened and asked the police what was going on. They did not
reply
and just carried on. He told the police that what they were
doing did not look right. One of the police said that it appeared
that
the plaintiff was a big mouth. He told the police not to call
him a big mouth; he was asking a simple question as to what was going
on. Sgt Pitt then pushed him with a speaker that he was carrying at
the time. At this stage another police member struck him a
backhanded
blow on his upper lip.
[6]
The plaintiff then raised his voice and
took out his cellphone, telling the police that he was recording them
and daring them to
hit him again whilst he was recording the
incident. The police just continued taking out the equipment but one
of them told the
plaintiff to put the cellphone away. He retorted
that, if they were doing things that were above board, they would not
fear him
recording the events. The police then turned around and
advanced towards the plaintiff who retreated and began dialling his
father’s
number. This prompted Sgt Pitt to grab his hand and
push him out of the back door into the back yard. When the plaintiff
stood
at bay with his back to the property wall, the other police
gathered around him in a semi-circle while Sgt Pitt tripped him,
dived
on him and started strangling him from behind while the two of
them were on the ground. He tried to dislodge the grip but it
tightened
and he feigned unconsciousness causing Sgt Pitt to relax
his grip. When he tried to escape, Sgt Pitt again tightened his grip
until
the plaintiff lost consciousness. The next thing he knew was
that he was being kicked and police were telling him to wake up. He
could not see who or how many were kicking him. He was pulled to his
feet and taken towards the kitchen door, at which point a
police
member attempted to spray him with pepper spray.
[7]
He was then taken to a police vehicle. En
route to the police vehicle, a friend tried to intercede on behalf of
the plaintiff and
he was also arrested. The plaintiff was placed in
the police vehicle with this friend, the two of them joining the
owner of the
music equipment who was already in the vehicle. The
journey to the police station was characterised by fast driving and
hard braking,
causing the occupants of the van to be thrown around.
At the police station the other two apologised and were released on
bail
but the plaintiff did not think he had done anything wrong so
refused to apologise. Other friends asked why the plaintiff was not
being released and were told that it was because he was a big mouth.
After Sgt Pitt left, the plaintiff was taken to CR Swart police
station where he spent the night. He realised that no-one knew where
he was being kept and raised this predicament with a police
member
the following morning. That member phoned his father and thereafter
his aunt after which the plaintiff was taken back to
the Berea police
station. His aunt arranged bail for him and he was released at about
07h00.
[8]
The evidence of the plaintiff concerning
the arrest and assault is fraught with inconsistencies. In the first
place, only the very
bare bones of his version were put to Sgt Pitt.
It was not put to him that he strangled the plaintiff, let alone
twice. Although
it was put to him that the plaintiff was pepper
sprayed and became unconscious, it was not put to him that his
strangulation of
the plaintiff caused him to become unconscious. The
implication was that the application of pepper spray caused this. No
detail
was given as to when or where the pepper spray was applied. No
mention was made that the other two who were arrested on the scene
had apologised at the police station or that he had been called a big
mouth twice. It was put to Sgt Pitt that it was he who had
applied
pepper spray but the plaintiff’s evidence was that it was not
Sgt Pitt but a police member whom he could not identify.
It was put
to Sgt Pitt that the plaintiff was assaulted by four police members
but this was not the evidence of the plaintiff,
who said there were
six members of police involved. It was not put to Sgt Pitt that the
plaintiff was kicked. It was not put to
Sgt Pitt that he had been
carrying a speaker and had pushed the plaintiff with the speaker.
After the plaintiff was recalled to
give evidence on the issue of
quantum, he gave a different version still. He testified that he, an
unidentified policeman and Sgt
Pitt were leaving the premises when
the policeman walking in front of him turned around, swung his arm
and hit him on the lip.
Sgt Pitt, who was walking behind him, then
struck him on his back with a speaker. He also said that, after he
had taken out his
cellphone and begun videoing what the police were
doing, one of them grabbed his arm and removed the cellphone. This
was entirely
new evidence. In addition, he testified that his arm was
injured when, after entering the police vehicle, he had indicated
that
the handcuff was too tight, the police undertook to loosen it
but in fact tightened it so that it caused the injury. None of this
was put to either of the police witnesses called by the defendant.
The evidence of Sgt Pitt that the Berea police were the ones
who
handled the equipment and that he had nothing to do with it was not
challenged but was contradicted by the plaintiff during
the latter’s
evidence.
[9]
The evidence of the plaintiff had other
difficulties. He said that when he arrived in the lounge, the police
members were all carrying
AK 47 firearms but, in the same breath, he
said that Sgt Pitt was carrying a speaker. He did not explain how
this could be possible.
Also, the owner of the equipment was pleading
with the police not to take the equipment but, when asked in cross
examination whether
others were present to witness the assault, he
said that all the others had left the house. The plaintiff also
rambled on despite
being asked on numerous occasions to speak slowly
in short sentences. Even taking into account the trauma he would have
experienced
if events had unfolded as he testified, one would have
expected more clarity on at least some of these matters. There are
further
aspects in which the evidence of the plaintiff fell short but
the above aspects suffice to show that he was an unreliable witness.
[10]
In contrast to the evidence of the
plaintiff, that of Sgt Pitt was clear and satisfactory. He conceded
that he did not explain the
plaintiff’s rights to him at the
time of his arrest. He said that this could not be done with the very
loud music at the
property and that he did not deem it safe with the
inflammatory situation and the plaintiff’s incitement of the
crowds. He
said that he knew that the police station was a mere 100
metres away where it could be done in safety. The picture painted was
one of a late night party where the partygoers did not want to accede
to the request of the police to turn off the music. It seems
almost
incomprehensible that, absent other motivations, the police would go
so far as to confiscate the music equipment if the
partygoers were
compliant. The overwhelming probability is that the music continued
unabated and at a high decibel level until
disconnected and that the
plaintiff interfered with the police in the execution of their duty.
Sgt Pitt answered questions directly,
kept to the point and made
concessions where these were appropriate. His evidence had the ring
of truth and his demeanour was excellent.
[11]
The
onus is on the defendant to show that the arrest and detention was
lawful.
[1]
The onus to show that
an assault took place is on the plaintiff. In my view the evidence of
the defendant as to disputed events
should be accepted as being more
probable than that of the plaintiff for the reasons set out above.
[12]
Sections40(1)(
a
)
and (
j
) of
the
Criminal Procedure Act 51 of 1977
provide:
‘
(1)
A peace officer may without warrant arrest any person-
(a)
who commits or attempts to commit any
offence in his presence;
.
. .
(j)
who wilfully obstructs him in the
execution of his duty
’
.
The
lawfulness or otherwise of the arrest is resolved by which version is
accepted. If the evidence of Sgt Pitt is accepted, the
plaintiff
wilfully obstructed him in the execution of his duty and, in
addition, committed other offences in his presence. I have
already
indicated why I accept the evidence of Sgt Pitt rather than that of
the plaintiff. This brings the arrest within the ambit
of
s 40(1)(
a
)
and (
j
).
It was submitted for the plaintiff that measures short of arrest
would have been equally effective in bringing the plaintiff
to court.
In the light of the evidence of the defendant, that is not the case.
It has in any event been held that, commendable
as it may be to use
alternative measures to obtain the attendance of a suspect at court,
if an arrest is made in terms of
s 40(1)(
a
)
rather than using an alternative, it does not render the arrest or
subsequent detention unlawful.
[2]
That being the case, the defendant discharged the onus on that issue.
The arrest was therefore a lawful one.
[13]
For the same evidential reasons, the
plaintiff failed to discharge the onus to prove that an assault took
place. It is clear that
force was used to effect the arrest and, on
the facts, it is clear that the force used was reasonable and not
excessive. As regards
the evidence of the plaintiff that the
tightening of the handcuffs, done after he was in the police van
caused the injury to his
right forearm, this, if found to be correct,
would mean that that force was not used in order to effect an arrest
and amounted
to an assault. However, that version was not put to the
two police witnesses. In addition, the plaintiff did not say that he
had
observed his wrists at the time the handcuffs were tightened. He
cannot, therefore, say when the injury occurred. On the version
accepted above, this most probably took place while the handcuffs
were being applied at the time he was resisting arrest. In my
view
the plaintiff did not prove that an assault took place.
[14]
This
leaves the question of unlawful detention. The defendant admitted
formally that the plaintiff was detained from the time of
his arrest
until the following morning. No further evidence was led by the
defendant. The plaintiff was deprived of his liberty
for that period.
In
Minister
of Law and Order & others v Hurley & another
,
[3]
the following was said of arrest:
‘
An
arrest constitutes an interference with the liberty of the individual
concerned, and it therefore seems to be fair and just to
require that
the person who arrested or caused the arrest of another person
should bear the
onus
of
proving that his action was justified in law.’
This
applies equally to detention.
[15]
The question is whether the detention was
lawful. No evidence was led by the defendant as to why it was
necessary to detain him
after he had been charged at the Berea police
station. The plaintiff gave uncontested and uncontroversial evidence
of what happened
after he was charged at the Berea police station. He
was taken to CR Swart police station and searched. His possessions
were removed
and he was taken to a room where others were waiting.
After about 11 or 12 people had collected in that room, they were
walked,
via a storeroom where they were each given a blanket, to an
empty cell with a concrete floor where they spent the night. He was
scared because he knew no-one and one of the persons detained with
him had tattoos and made threatening noises about prison gangs.
His
friends had been told at the Berea police station that he would be
kept there overnight and he was concerned that they would
not be able
to trace him.
[16]
The crisp question is why the plaintiff was
detained overnight at all. His companions had been released on bail
by the police. He
was released on bail by the police the following
morning without any indication that circumstances had changed. It is
not as if
he could have continued making trouble since the evidence
was clear that the music equipment had been removed from the premises
where the party had been held and the people had dispersed. In those
circumstances, the defendant cannot be said to have discharged
the
onus to prove that his detention was lawful. This was conceded by the
defendant’s counsel in argument. In my view, the
concession was
correct.
[17]
The
question, then, is what damages should be awarded for the unlawful
detention. Previous awards were reviewed in
Minister
of Safety and Security v Seymour
,
[4]
which concluded that the only discernable pattern was that courts are
not extravagant in such awards.
[5]
The facts of each case must be evaluated on their own merits because
few cases are directly comparable. The facts in
Seymour
were summarised in
Woji
v The Minister of Police
,
[6]
in the following terms:
‘
In
Seymour
,
the respondent was detained for five days at a police station, during
which time he had free access to his family and medical
advisor. He
suffered no degradation beyond that which was inherent in being
arrested and detained. After the first period of 24
hours the
remainder of the detention was in a hospital bed at the Rand Clinic.
This court reduced the award of damages from R500 000
to
R90 000.’
[18]
The present matter can also be said to have
been unremarkable, save for the degradation inherent in being
detained. The detention
endured seven or eight hours overnight. It
was clearly traumatic for the plaintiff. Taking all of the above
factors into account,
it seems to me that an award of R50 000 is
appropriate. In the light of the measure of damages, it is clear, as
was conceded
by counsel for the plaintiff, that costs should be
limited to the magistrates’ court scale.
[19]
No prosecution took place so that claim
must fail. In addition, although the plaintiff gave evidence that he
consulted a doctor,
he did so for purposes of lodging the claim and
not for medical treatment. In any event, he testified that he did not
incur any
expenses so the claim for R200 was not proved.
[20]
The
summons was served on 10 March 2011.
This
is the date from which interest begins to run. The prescribed rate of
interest was decreased from 15.5 per cent per annum to
9 per cent per
annum as from 1 August 2014.
[7]
The rate prescribed at the time when interest begins to run (ie. 15.5
per cent) governs the calculation of interest and does not
vary if
the prescribed rate is adjusted in the interim.
[8]
[21]
Mention needs to be made about the manner
in which the trial was conducted. Witnesses were not available at the
time they were needed
and admissions were not properly formulated,
with the result that one of the sets of admissions had to be
revisited on three occasions
before it was correctly formulated. This
is because the formulation in the first two iterations was so unclear
that the parties
could not agree on precisely what had supposedly
been admitted. In addition, it was indicated that the plaintiff would
rely on
a doctor’s report covered by an affidavit which could
be handed in by consent. When I enquired as to the attitude of the
defendant, this was confirmed but, when I asked what the status of
these documents would be, it became clear that the report was
contested. This necessitated an adjournment to procure his evidence.
The adjournment turned out to be a lengthy one as a result
of my
duties having taken me away from the court concerned for over a year.
On resumption, the plaintiff did not call the doctor.
Had the matter
been properly conducted and the provisions of rule 37 complied with,
the admissions, including those relating to
the doctor’s
report, could have been formulated clearly and the parties would have
been able to assess precisely what evidence
was needed.
Judgment
is granted in favour of the plaintiff for:
1
Payment of the sum of R50 000.
2
Interest on the said sum of R50 000 at the rate of 15.5% per
annum from 10 March 2011to date of payment.
3
Costs of suit, including those reserved on 30 January 2014, on the
magistrates’ court scale, including the costs of
counsel and
preparation.
GORVEN
J
DATE
OF HEARING: 29 & 30 January 2014; 3 & 4 June 2015.
DATE
OF JUDGMENT: 4 June 2015.
FOR
THE PLAINTIFF: A Matlamela (on 29 & 30 January 2014) and
ME Mbambo (on 3 and 4 June 2015) instructed by CHILIZA DLAMINI
ATTORNEYS.
FOR
THE DEFENDANTS: SP Khumalo instructed by the STATE ATTORNEY (KZN).
[1]
Zealand
v Minister of Justice and Constitutional Development and Another
[2008] ZACC 3
;
2008
(4) SA 458
(CC) paras 24 and 25;
Rudolph
v Minister of Safety and Security
2009 (5) SA 94
(SCA) para 14.
[2]
National
Commissioner of Police & another v Coetzee
2013 (1) SACR 358
(SCA) para 13.
[3]
Minister
of Law and Order & others v Hurley & another
1986 (3) SA 568
(A) at 589
[4]
Minister
of Safety and Security v Seymour
2006
(6) SA 320
(SCA).
[5]
Para
20.
[6]
Woji
v The Minister of Police
(92/201’2)
[2014] ZASCA 108
(20 August 2014) para 39.
[7]
Government
Gazette No 37831 dated 18 July 2014.
[8]
Davehill
(Pty) Ltd v Community Development Board
1988
(1) SA 290
(A) at 300G-302A.