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2015
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[2015] ZAECELLC 19
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Banzana and Another v Minister of Police (EL325/13, ECD926/13) [2015] ZAECELLC 19 (8 September 2015)
IN THE HIGH COURT
OF SOUTH AFRICA
(EAST
LONDON CIRCUIT LOCAL DIVISION)
CASE NO: EL325/13
ECD926/13
In
the matter between:
SIHLE
BANZANA
1
st
PLAINTIFF
VIZICELO
ZEMBE
2
nd
PLAINTIFF
and
MINISTER
OF POLICE
RESPONDENT
JUDGMENT
MBENENGE
J:
A
Factual background
[1]
This is an action for damages wherein the plaintiffs seek to hold the
defendant, sued on a various liability basis, liable in
damages for
alleged wrongful and unlawful conduct allegedly committed by members
of the South African Police Service (the Service)
on 16 and 18 August
2012,
[1]
and subsequent
thereto. It is alleged that the plaintiffs were arrested by
members of the Service, including Constable Toni
and Constable
Mbande, without a warrant, at Duncan Village on 18 August 2012.
Upon their arrest, so the plaintiffs’
case goes, they were
detained at Duncan Village Police Station until 20 August 2012 at
which point the charges that had been preferred
against them were
withdrawn, due to insufficient evidence. The plaintiffs further
allege that during their interaction with
members of the Service they
were assaulted, resulting in them sustaining injuries for which they
were hospitalised from 20 to 26
August 2012 at Frere Hospital, East
London (the Hospital).
[2]
The claims of the plaintiffs commenced separately, but at some
convenient stage were consolidated to proceed as one action,
as
indeed the issues falling to be determined are substantially
similar.
[2]
[3]
The action is being resisted by the defendant, who seeks to justify
the conduct of the members of the Service concerned by resorting
to
section 40(1)(b) of the Criminal Procedure Act
[3]
(the CPA). The section permits a peace officer to arrest,
without a warrant, a person reasonably suspected of having committed
an offence in Schedule 1 to the CPA.
[4] It is contended
that the first plaintiff (herein after referred to as Sihle) was
reasonably suspected to have committed robbery
with aggravating
circumstances and possession of an unlicensed fire arm, whilst the
second plaintiff (hereinafter referred to as
Vizicelo) was suspected
to have committed housebreaking and theft, and malicious injury to
property. It is further contended
that the detention of the
plaintiffs, having been a sequel to a lawful arrest, was justified
and complied with section 50 of the
CPA. The defendant denies
that the plaintiffs were assaulted and that they sustained injuries
for which they were hospitalised,
or at all.
[5] The parties
invited the court to determine the merits of the action whilst
holding in abeyance the determination of quantum.
I granted an
order to that effect, pursuant to an application made from the bar
for such separation, in terms of rule 33(4) of
the Uniform Rules of
Court (the Rules).
[6] The issues that
have fallen to be determined are whether the arrest and the resulting
detention of the plaintiffs is wrongful
and unlawful, and whether,
whilst in police custody, the plaintiffs were assaulted by members of
the Service. Notwithstanding
the provisions of rule 39(13) of
the Rules, which places the duty to adduce evidence first on a
plaintiff in instances such as
here, where the onus rests on the
plaintiffs to establish,
inter alia,
that they were in fact
assaulted, the defendant nevertheless adduced evidence first.
[7] Constable Mbande
was the first to testify. He is a member of the Service
attached to the detective section, stationed
at Duncan Village Police
Station. He effected the arrest on Vizicelo. He testified
that the arrest was a sequel to
a complaint of housebreaking and
malicious injury to property that had been lodged by David Gontsi
(Gontsi) under Cas 38/08/2012.
A copy of the crime docket in
that case was handed in as exhibit “A”. The docket
points to housebreaking, theft
and malicious injury to property as
having been committed at 841 C-Section, Duncan Village on the night
of 4 August 2012.
A firearm is said to have been used in
committing the offence.
[8] A team of
members of the Service of which Constable Mbande and Constable Toni
were a part was involved in an investigative operation
under the
command of Captain Van Wyk at Duncan Village. One of the
homesteads attended upon on this day (16 August 2012)
was that of the
Zembes, occupied by Vizicelo and his father, Vusumzi Zembe (Zembe).
How the police got to be there, in the
first place, according to
Constable Mbande, were the contents of a statement deposed to by
Gontsi in the related criminal case
and what Gontsi allegedly told
the police concerning Vizicelo. According to the statement,
Gontsi was informed by one of
his friends, Xolisa, that Vizicelo had
been among the perpetrators.
[9]
According to Constable Mbande, Gontsi led the police to the Zembe
homestead. When the police arrived there, Vizicelo was
still
taking a bath. Zembe told them as much, during an interaction
the police had with him. When Vizicelo eventually
emerged,
Constable Mbande informed Vizicelo that he was a suspect in a
criminal case of housebreaking, theft and malicious injury
to
property that had been instituted; the police were there to arrest
him in connection therewith. Gontsi also pointed out
Vizicelo
as being one of the culprits, whereupon Vizicelo was informed that he
was under arrest and warned about his constitutional
and legal
rights, including the right to remain silent. Vizicelo was
taken to a police vehicle which was part of a motorcade
formed by
police vehicles. He appeared to be limping and stated that he
had been assaulted by unknown TRT
[4]
members on a previous occasion. The motorcade did not
immediately proceed to the police station as the police had a few
other pending matters to investigate. Vizicelo was booked into
the cells at 10h40. Constable Mbande also referred to
an entry
made in the occurrence book of the relevant day, which reads:
“
Suspect
detained, detective Constable Mbande detained one black male Vizicelo
Zembe for housebreaking and theft on Cas 38/08/12
SAP 14/71/8/2012
and the rights were given and explained to him with no visible
injuries”
[10] Constable
Mbande denied that the police ever kicked “
[Vizicelo] with
booted feet or hit him with clenched fists or squeezed him into
handcuffs, injure him with handcuffs or tortured
him without just
cause.”
He further denied that any one of the police
who visited the cell in which Vizicelo was incarcerated received
complaints of assaults
or injuries sustained by Vizicelo.
[11] The arrest on
Sihle was effected by Constable Toni, but Constable Mbande was
present, even though not actively or directly
involved therein.
Constable Mbande also claimed not to have played any role in the
interrogation of Sihle. When the
complainant withdrew the
charges against Vizicelo, the latter was released from custody on 20
August 2012 without having to appear
in court. He believed that
charges were withdrawn because the complainant also ended up being
incarcerated in the same cell
occupied by Vizicelo in respect of
another matter and Vizicelo had discussed the matter.
[12] Under cross
examination by counsel for the plaintiffs, Mr Chithi, Constable
Mbande reiterated that, based on Gontsi’s
statement, he
harboured a belief that Vizicelo had acted in concert with the
culprits that broke into his shack, stole some of
his items and
maliciously injured other property. He conceded that Gontsi had
not implicated Sihle in his statement.
A question regarding
whether “
Xolisa
” referred to in Gontsi’s
statement had also deposed to a statement implicating Vizicelo was
answered in the negative.
[13] Moment was
made, during Constable Mbande’s cross examination, of the fact
that Vizicelo had been booked off the cells
after he had elected to
remain silent. Initially, Constable Mbande could not dispute
that the purpose of such booking off
had been to conduct further
investigations in relation to the offence for which he was arrested,
but later adopted the stance that
the purpose had been to facilitate
the pointing out of Sihle by Vizicelo.
[14] Constable
Mbande distanced himself from the injuries allegedly suffered by the
plaintiffs, adding that, had the injuries depicted
on exhibit “C”
been observed at the time the plaintiffs were being arrested, they
would surely have been taken to hospital
for treatment and the
injuries recorded in the occurrence book before their incarceration.
Vizicelo, so Constable Mbande
testified, bore none of the injuries
depicted on exhibit “C” at the time of their release on
20 August 2012.
He proffered no version regarding how the
injuries were sustained. Constable Mbande said he had no
experience of the type
of injuries around one’s wrists
associated with the tightening of handcuffs. When a suggestion
was made that Vizicelo
had been assaulted in the early hours of the
morning of 18 August 2012 when he had been booked off the cells,
Constable Mbande
distanced himself from that saying he was not
present and only reported for duty after 07:00 at a time when
Vizicelo was being
brought back to the cells. He saw no
injuries on Vizicelo even at that stage.
[15] No statement
relating to the arrest of Vizicelo was compiled by Constable Mbande.
He had been bent on compiling the statement,
and stated that once
charges against the plaintiff had been withdrawn the need therefor
fell away.
[16] Constable
Mbande said he never saw the condition in which the plaintiffs were
at the time of their release, having last seen
them on the previous
day, Sunday 19 August 2012.
[17]
The next witness to be called to testify on behalf of the defendant
was Constable Toni.
[5]
He
was on duty on Thursday 16 August 2012, and was present when Vizicelo
was being arrested. He confirmed that Constable
Mbande effected
the arrest on Vizicelo after the latter had been pointed out by
Gontsi. After Vizicelo had been placed in
custody he went about
conducting investigations in other matters. Before Vizicelo was
incarcerated he volunteered to assist
the police locate a person who
had supplied them with firearms. On the strength of information
received from Vizicelo, Constable
Toni and Detective Williams left
the police station on a mission to trace other suspects.
[18] In the early
hours of Saturday 18 August 2012, Vizicelo pointed out a house in
Duncan Village allegedly occupied by a supplier
of firearms,
colloquially known as “
GTI
”. A search was
conducted, resulting in the recovery of ammunition and a report being
made concerning the whereabouts
of an R5 rifle.
[19] One of the
cases the police were investigating involved a Somalian national who
ran a Spaza shop and who had previously laid
an armed robbery charge
with the police. Sergeant Jele had deposed to a statement in
relation to the armed robbery, which
culminated in investigations
being conducted. Constable Toni further testified that he had
met the Somalian complainant the
previous Friday (17 August), and
that the Somalian had indicated that he knew one of the perpetrators
and could lead the police
to the perpetrator’s homestead.
[20] Constable Toni,
together with his colleagues, including TRT members, were, according
to Constable Toni’s testimony, led
to Sihle’s shack.
The Somalian pointed out Vizicelo’s shack. The occupant
of the shack took some time before
responding to Constable Toni’s
knock. Eventually, Vizicelo emerged from the shack and the
Somalian identified him as
one of the culprits. When Sihle saw
Constable Toni, he took a retreating step and tried escaping, but was
apprehended with
the aid of TRT members and thereupon handcuffed.
Constable Toni placed Sihle under arrest and explained his legal and
constitutional
rights, including the right to remain silent.
The motorcade proceeded to the Duncan Village police station,
whereupon Sihle
was booked into the cells. Constable Toni
further testified that Sihle bore no injuries when being
incarcerated. According
to the relevant entry in the occurrence
book Sihle was detained for “
possession of firearm
”
and for “
robbery
”
[21] Constable Toni,
too, denied assaulting any one of the plaintiffs, and testified that
he saw no one assault them.
[22] Under cross
examination, Constable Toni testified that he arrested Sihle because
he suspected him of having committed robbery,
and for no other
offence. When further questioned and referred to the
defendant’s plea in so far as it mentioned “
possession
of an unlicensed firearm”
, he added that this was an
additional offence for which Sihle had been arrested.
[23] Even though
Sihle had been arrested for possession of a firearm, none was found
in his possession. A certain Msutwana
was found in possession
of the firearm. Msutwana was, however, never arrested.
According to Constable Toni the police
had been in possession of
information that Sihle had previously been in possession of a
firearm. He confirmed that the statement
concerning the robbery
did not implicate Sihle regarding the possession of a firearm.
[24] When showed the
injuries depicted on exhibit “C” allegedly suffered by
the plaintiffs, Constable Toni said he never
saw the injuries during
his interacting with the plaintiffs. He said if they bore such
injuries he would have seen them.
Constable Toni confirmed that
he had seen Zembe at the police station engaged in a heated debate
with Constable Mbande, but could
not confirm that Zembe had seen any
injuries such as those depicted on exhibit “C” borne by
the plaintiffs.
[25] Constable Toni
denied that Nongoloza, and not the Somalian complainant, had led the
police to Sihle’s shack. He
also said he never saw the
plaintiffs being tortured in a hall located in Duncan Village police
station, and described as having
no ceiling.
[26] Upon the
closure of the defendant’s case, the plaintiffs called Dr Boado
to testify in relation to the injuries they
sustained, allegedly
caused by the police. She is a doctor at the emergency section
at the Hospital. Her section attends
to emergency cases, but
randomly holds general consultations. She was on duty on 20
August 2012. She was referred to
photo albums embodying
pictures depicting the plaintiffs’ injuries (Exhibits “F1”
and “F2”).
She confirmed having seen a patient by
the name of Sihle Banzana on 20 August 2012 at 16:44.
[27] Sihle narrated
a story to Dr Boado concerning his arrest on 18 August and claimed
that he had been hit with sticks and had
been released from police
custody on the same day. The doctor examined Sihle; she noticed
a little scratch on the right side
of his parietal area, redness on
both eyes and healing scratches on both sides of his neck. Sihle
also bore a healing abrasion
on both left and right arms, on the left
forearm and on the right hand. There was a bit of swelling on
the right hand and
handcuff marks on both wrists. There were
healing abrasions on both lower limbs and some swelling on the left
foot and on
the right leg. The doctor was of the view that the
handcuffs had been caused prior to Sihle attending upon the
Hospital.
No fractures were detected in the forearms and both
hands. He also bore healing abrasions on fingers and wrists.
[28] Sihle was also
referred to a surgeon who made his own observation, and whose
diagnosis was “
crush syndrome arising from compression
”.
She was also of the view that a person pressed with booted feet
against a chair could suffer from crush syndrome.
Sihle was
hospitalised from 20 to 27 August 2012, whilst receiving treatment
for the injuries he had sustained.
[29] Turning to deal
with recordings made on exhibit “
F2”
(medical
records in respect of Vizicelo), the doctor confirmed having examined
Vizicelo on the same day, 20 August 2015 at 16:55.
He, too,
gave an account of having been assaulted by the police. He bore
abrasions on both forearms, handcuff marks on both
wrists, swelling
on both hands, and abrasions on both lower limbs. No fractures
were detected on both hands and in his wrists.
Vizicelo, too,
was diagnosed as suffering from crush syndrome.
[30] Under cross
examination the doctor stated that the majority of the injuries were
healing in respect of Sihle. The healing
injuries would have
occurred before 18 August 2012. According to the doctor,
healing takes approximately a week in respect
of injuries on the arms
and legs, or even five days in the case of persons with a good immune
system. The injuries that were
healing should have still been
visible on 18 August. The injuries on the wrists were
consistent with tightening of handcuffs.
The same marks on the
wrists, consistent with handcuffing, could have been caused by
handcuffing taking place whilst arms are stretched
from the rear so
as to be around the back rest of a chair.
[31]
Vizicelo was next to testify. He resides at Duncan Village.
He knows Sihle. He was arrested on 16 August
2012. Whilst
taking a bath in his shack he overhead a heavy knock on the door of
the shack occupied by his father, Vusumzi,
on that day. When he
emerged from his shack he saw a number of police officers, including
Constable Mbande and Constable
Toni. A certain “
Whitey
”
was also there tied with a belt around his wrists. The police
told him they had come to fetch him in order to question
him about a
housebreaking that had taken place at Whitey’s homestead.
They pledged to bring him back after the questioning.
He was
not handcuffed because Constable Toni was of the view that he was
limping and could not outpace them. He said the
limp had been
caused when he was stabbed during 2007. Another policeman asked
where the “
spanners
”
[6]
were. He was led to the vehicles that were part of the police
motorcade. Initially, Vizicelo was taken to police offices
at
Sanlam building, where he was kept till the afternoon. He was
questioned about the whereabouts of Sihle, a robbery and
“
spanners
”.
He was also asked about firearms that he had possessed.
Eventually, he was locked in police cells at the police
station.
[32] Nothing
eventuated from the side of the police during the day on 17 August.
During the night of Friday 17 and 18 August
Vizicelo was awakened in
his sleep by Constable Toni who accosted him about the whereabouts of
firearms. He denied knowledge
of the firearms stating that as
far as he was concerned he had been arrested in connection with an
alleged housebreaking.
A threat was made that if he denied
knowledge of firearms, unlike his companion who was said to have
surrendered four firearms
to the police, he would “
shit
”
at the hands of TRT members who were reported to be on their way.
[33] Vizicelo was
then returned to the cell, but was booked off later, in the early
hours of the morning. Constable Toni urged
him to co-operate,
mentioning that Vizicelo had been part of a gang comprising 15 people
who had been armed with firearms and broke
into Whitey’s
place. At that point Vizicelo had been handcuffed on both his
wrists from his back. He was led
into the hall at the police
station with 10 police officials, most of whom were TRT members, who
were wilding high calibre firearms,
threatening to shoot him.
He was questioned further about the whereabouts of firearms.
When he denied knowledge of
the firearms one of the police officers
delivered a fist blow to his chin, whilst another kicked him.
He was dragged to the
back of the hall. One of his shoes
slipped off. The police caused him to sit on a chair, stretched
his handcuffed arms
over the back rest of the chair. A plastic
bag and a spray gun were taken out. They sprayed the plastic
bag with the
spray gun before pulling the plastic bag over his face.
This act suffocated him.
[34] The police
enquired from Vizicelo about his friends who had been in his company,
amongst whom was “
GTI
”. The police
threatened that if Vizicelo did not say something they would subject
him to further suffocation.
He eventually yielded and undertook
to lead the police to GTI’s shack, which he did. The police
kicked the shack’s
door open, and a young boy named Nongoloza
came out. GTI was in the main house. Vizicelo pointed him
out. GTI
was also handcuffed. Both Nongoloza and GTI were
apprehended. Nongoloza volunteered to point out Sihle’s
place.
[35] Nongoloza led
the police to Sihle’s shack. Sihle was apprehended by the
police and taken into one of the motor
vehicles that were part of the
motorcade. Another person that the police approached, being led
by Vizicelo, was Shuta.
A toy gun was recovered from Shuta.
The motorcade returned to the police station. On arrival there
and upon entering
the hall located at the police station, Vizicelo
and Shuta were caused to lie on their tummies. A policeman by
the name of
Williams beat them with a spade-like object on their
buttocks.
[36] On the
suggestion of Constable Toni, Vizicelo was handcuffed from the back,
lifted up, suspended in the air with arms stretched
over the hall’s
roof rafters. One policeman sprayed him with a pepper spray gun
on his eyes whilst the other hit him
on his knees. Constable
Mbande ordered that his face be covered; he dipped Sihle’s head
in a bowl of water several
times. Thereafter, Constable Toni
suggested that Sihle be taken back to the cells, to avoid Sihle’s
father seeing the
condition of his son. Vizicelo said he saw
Sihle being handcuffed, with a pole stretching behind his knees and
running through
the arms and legs, whilst both pole ends rested on
desks that lay side by side. Sihle swung on the pole between
the two desks,
whilst being assaulted on his thighs.
[37] Vizicelo said
he was booked off on the following morning, so as to be charged, but,
at the instance of Whitey, the charges
were eventually withdrawn.
On the following day the plaintiffs were taken to court, but released
from holding cells, without
being caused to appear before court.
Zembe took them to Captain Van Wyk, a senior member of the Service,
where the assault
incident was reported. Van Wyk instead
implicated TRT member in relation to the assault. Thereafter,
the plaintiffs
were taken to the Hospital.
[38] The plaintiffs
were examined, admitted, treated and discharged from the Hospital
after about a week. Van Wyk confirmed
that the photographs
depicted on the relevant photo album were the injuries he had
sustained resulting police assault. Vizicelo
denied involvement
in breaking into the complainant’s house. He said the
assault was meted out in the early hours of
Saturday, 18 August
2015. The plaintiffs bore the injuries through Sunday, and were
seen by a doctor at the Hospital on Monday
afternoon, upon their
release. He denied ever seeing a Somalian national during the
investigative procedures.
[39] Zembe was also
called to testify. He was at his homestead when the police
arrived looking for his son, Vizicelo, on 16
August 2012. The
police said they had come to ask for permission to fetch Vizicelo so
as to question him in relation to a
house breaking incident that was
said to have taken place at Whitey’s house. They
undertook to bring his son back on
the same day, once done with
questioning him. The permission was granted. The police
took away Vizicelo.
[40] At sun set,
being concerned that the police had not returned Vizicelo as pledged,
Zembe approached Captain Van Wyk at Sanlam
Building, enquiring about
the whereabouts of his son. Captain Van Wyk confirmed that
Vizicelo had been in the care of Constable
Toni at Duncan Village
police station. Zembe thereupon made his way to the police
station, but could not find Constable Toni,
who was reported as
having already knocked off. Zembe’s request to see
Vizicelo was not successful as Constable Toni
was reported to have
left instructions to the attending police not to let anyone see
Vizicelo as he was still under investigation.
He spent the
night without having had sight of his son.
[41] In the morning
of Friday 17 August 2012 Zembe returned to the police station, but
Toni refused him access to Vizicelo saying
the law did not allow such
access. A further visitation Zembe made on the following day,
Saturday 18 August, also yielded
nothing.
[42] In the
afternoon of Sunday 19 August 2012, Zembe returned to the police
station. Upon arrival there he asked Constable
Toni’s
whereabouts. He was reported to be in another office.
When Zembe turned around he saw Constable Toni,
who, in turn, changed
course. Zembe gained the impression that Constable Toni was
avoinding him. He followed Zembe
to another office where he
found Constable Mbande taking fingerprints from Vizicelo and Sihle.
Zembe saw handcuffed marks
on Vizicelo’s wrists.
Vizicelo’s pants had blood marks. The same fate befell
Sihle. He protested
to Constable Toni about the condition and
appearance of the plaintiffs. Constable Toni said Vizicelo had
been handcuffed
because he was not co-operative with the police,
hence tightened handcuffs had resulted in the wrists being injured.
After
exchanging words with the police on that occasion, Zembe
returned home.
[43] On the
following morning Sihle and Vizicelo were released. Zembe
observed that they walked with difficulty. He
ferried them to
Captain Van Wyk’s office, where he laid an assault complaint.
Captain Van Wyk referred them to Constable
Toni. They drove to
the police station, but they received no assistance from the police,
who refused to open a case due to
“
lateness of hour
”.
[44] Because of the
injuries Sihle and Vizicelo had sustained and the complaints they
raised about bodily pain, Zembe took them
to the Hospital, where they
were admitted for treatment. Upon further questioning, Zembe
stated that on Saturday night (18
August) Constable Mbande had been
to conduct a search at his place, being in the company of Sihle, who
was bleeding. He became
panic-stricken, for some days had
passed without him seeing his son.
[45] Sihle was the
last to testify. Police arrived at his shack on 18 August
2012. The police assaulted him with a stick.
They said
they were looking for firearms. He had no firearms, and none
were recovered. He said Nongoloza had led the
police to his
shack. Upon being apprehended he was taken to Duncan Village
police station.
[46] Sihle testified
that at the police station he was led to a hall where he and Vizicelo
were questioned about the whereabouts
of firearms. When they
denied knowledge of firearms they were assaulted. Sihle was
handcuffed. A spade was placed
on two tables that lay side by
side. In the space between the tables he was caused to swing
over with the spade placed behind
his knees, whilst being
handcuffed. He was sprayed on his eyes with a pepper spray.
A plastic bag was pulled over his
face. This had the effect of
suffocating him. He said he was also handcuffed and caused to
hang from the hall’s
roof rafters and left suspended in the
air. He denied that there was ever any Somalian national at the
time of his arrest.
[47] At some stage
during his incarceration, Sihle was booked off the cells and taken to
Ziphunzana location at Duncan Village.
He was already injured
at that stage, and Zembe, whose homestead was also visited, witnessed
his physical condition. The
police were still pursuing their
quest for the recovery of firearms. When the search for
firearms at Sihles place yielded
naught, he led the police to Zembe’s
homestead with a view to having Zembe intervene on his behalf as he
was being subjected
to continued assaults. A firearm was
recovered from Zola’s place during that bout. He claimed
to have no connection
with that recovery. Thereafter he was
returned to the cells.
[48] Sihle and
Vizicelo were released on Monday 20 August 2012. Zembe took
them on his vehicle, first to Captain Van Wyk’s
office and,
ultimately, to the Hospital, where they were examined, admitted and
treated for the injuries they had sustained.
Sihle confirmed
that the injuries he had sustained caused by the police were those
observed by the doctor and recorded in the relevant
medical report.
He said he neither committed robbery nor possessed any firearm.
According to Sihle the injuries on
his wrists were caused by
tightened handcuffs. The marks on his arms and legs were
sustained when he was caused to swing
between two desks.
B
Legal position
[49] A pronouncement
on the lawfulness or otherwise of the impugned arrest and resulting
detention can only be made upon a consideration
of the legal
principles granting the police authority to arrest without a warrant.
[50] The law permits
arrest without a warrant where the peace officer entertains a
reasonable suspicion that the person being arrested
has committed an
offence listed in Schedule 1to the CPA. Therefore, for the
defendant’s defence to be upheld, the following
jurisdictional
factors must be established, namely:
(a)
the arrestor must be a peace officer;
(b)
the arrestor must entertain a suspicion;
(c)
the suspicion must be that the arrestee committed an offence referred
to in Schedule1; and
(d)
the suspicion must rest on reasonable grounds.
[7]
[51]
Both Constable Mbande and Constable Toni were, at the relevant time,
peace officers
[8]
within the
meaning and contemplation of section 1 of the CPA.
[9]
That the Constables had harboured a suspicion was not contested.
Sihle was suspected of having committed robbery and
possession of an
unlicensed firearm, whilst Vizicelo was suspected of having committed
housebreaking, theft, and malicious injury
to property. These
offences are set out in Schedule 1.
[10]
What remains to consider, however, is whether the suspicion
harboured by Constable Mbade and Constable Toni when arresting
the
plaintiffs was reasonable. That question must be approached
objectively.
[11]
The
circumstances giving rise to the suspicion must be such as would
ordinarily move a reasonable man to form the suspicion
that the
arrestee has committed a Schedule 1 offence.
[12]
C
Lawfulness of the arrest
[52] Vizicelo was
first to be arrested, on 16 August 2012. It is convenient to deal
first with his arrest. According to Constable
Mbande the
suspicion that Vizicelo had committed housebreaking, theft and
malicious injury to property was based solely on the
statement of
Gontsi, who laid a complaint with the police under Cas 38/08/2012,
the relevant portion of which reads:
“
2.
On
Saturday 2012-08-05 at about
+
21:30 I left my shack no 841 C-section with Sinazo (my girlfriend’s
friend) I was accompanying Sanazo to Entilini where she
stays.
Inside my shack I left Yamkela Faku, my girlfriend who was still
waiting her other friends. While I was leaving
with Snazo I
told Yamkela (my girlfriend) to lock the shack and sleep because I
heard from a friend that Vizicelo and his friends
were looking for me
and they are armed with firearms.
3.
At about
+
22:10 the same night I came back from accompanying
Snazo. When I opened my shack I noticed that the door latch was
broken
and the door is not locked. I entered my shack and
noticed that my sofa was turned around (bottom facing up) and
everything
was upside down. I noticed a bullet hole on my 74 cm
colour Television. My TV is valued
+
R900-00.
4.
I checked to see if there was anything missing or stolen and I
noticed that my
laptop (Acer laptop valued
+
R7000-00) and my
girlfriend’s takkies (Black, All-star, size 4, valued at
R400-00 were stolen.
5.
I went outside to call my girlfriend who told me that she was at
Xoliswa’s
tavern. I asked if she locked the shack hence I
told her to lock. She told me she locked and left to Xoliswa’s
tavern. I asked her to come and witness what happened.
6.
I then called my friend Xolisa who told me that Vizicelo and his
friends were infront of my shack and others were inside my shack.
He said they were a group of about
+
(15)
fifteen guys. He also told me that he heard the gun shot while
they were in and around my shack.
7.
I went to sleep in Xolisa’s shack fearing that they will come
and shoot
me.
8.
I didn’t give Vizicelo and his friends permission to steal and
damage my
property. I require police investigation in this
matter.” (My emphasis.)
[53] The statement
requires scrutiny. The reasonableness or otherwise of the
suspicion harboured by Constable Mbande must
be considered against
what is set out in paragraph 6 of Gontsi’s statement. It
is clear from a reading of the statement
that a group of persons
broke into Gontsi’s shack, stole his property and damaged other
items mentioned in the statement.
It is also plain, from a
reading of the statement that some of the culprits stood by whilst
others committed the offences in question.
Arguably, a
suspicion might have been harboured that those who stood by infront
of the shack whilst the rest actually committed
the offences were
acting in concert with one another.
[54]
Gontsi alleges that he gleaned the information implicating Vizicelo
as having been one of the culprits from Xolisa. Constable
Mbande did not obtain any statement from Xolisa. There is
nothing on the strength of which it could be said Constable Mbande
formed his own suspicion. He never interviewed Xolisa who
implicated Vizicelo as having been in front of Gontsi’s shack.
Gontsi’s statement is clearly hearsay in nature. He was
absent when the offences were committed. In so doing,
Constable
Mbande acted contrary to the trite legal position that makes it
incumbent on an arresting officer to critically analyse
and assess
the quality of the information at the officer’s disposal
critically and not to accept the information lightly
or without
verification, where it is possible to do so.
[13]
[55] Constable
Mbande’s suspicion that Vizicelo had committed a Schedule 1
offence did not rest on reasonable grounds.
The defendant has
therefore failed to discharge the onus of justifying Vizicelo’s
arrest.
[56] Sihle was
arrested under different circumstances, on 18 August 2012, by
Constable Toni, being suspected of having committed
robbery with
aggravating circumstances and possession of unlicensed firearm.
[57] Evidence
established that there was a complaint lodged with the police of a
Somalian national running a Spaza shop at Duncan
Village who was
robbed at gun point in his shop in the early hours of 9 August 2012.
The complaint had resulted in a docket
being opened at Duncan Village
police station under Case 66/08/2012.
[58] On Constable
Toni’s own showing, Sihle had initially been arrested for the
robbery committed at the Somalian’s
Spaza shop. At arrest
stage, the charge relating to possession of unlicensed firearm did
not feature. No statement
implicating Sihle as having been in
possession of a firearm was obtained. During the investigations
conducted, upon Sihle’s
arrest, no firearm was recovered from
him.
[59] According to
entries made in the investigation diary, the robbery was perpetrated
by “
four unknown males armed with firearms”.
The diary goes on to say “
enquiries made from community
members who mentioned that they know one suspect by the name of Athi
who stays around there
.” There was evidence that
“
Athi
” is another name by which “
Sihle
”
is known. A further entry, which is also of some significance, made
on 12 May 2013, reads:
“
Spoken
with the complainant and he reported that he does not know the
suspect. The said suspect who knows by the community
address is
unknown. Docket to the commander for closure.”
[60] The only member
of the community who knew the suspect as being “
Athi
”
turned out to have been a faceless and unidentified informer.
Constable Toni had no knowledge of other community members
who knew
“
one suspect by the name of Athi who stays around there.”
A note made by Constable Toni for the attention of the prosecutor
stated that “
no witness was willing to submit statement
yet.”
[61]
Constable Toni mentioned that a statement deposed to subsequent to
the pointing out made by the Somalian complainant
had been compiled,
but no tangible account was given of what eventually became of the
statement. Nor is there a statement
corroborative of the fact
that the Somalian had accompanied the police to Sihle’s shack.
None of the police who were
in Constable Toni’s company when
the alleged pointing out was made deposed to affidavits or was called
to testify.
[62] I am,
therefore, satisfied that, prior to arresting Sihle, Constable Toni
did not harbour a reasonable suspicion that Sihle
had committed a
Schedule 1 offence. The arrest of Sihle was, in these
circumstances, not justified by section 40(1)(b) of
the CPA.
[63]
In light of the above, the detention resulting from the plaintiffs’
arrest was similarly not justified and constituted
a serious
restriction on their right to freedom of movement.
D
Issue of assault
[64] The Defendant
did not only deny the assault in the pleadings, but Constable Mbande
and Constable Toni, who were, during the
trial, implicated as having
assaulted the plaintiffs, distanced themselves from the assault as
one would a leper coming one’s
way. According to the
Constables, the plaintiffs bore no visible injuries when being
arrested and detained. Not even
the injuries usually caused by
the tightening of handcuffs were owned by the police during their
testimony.
[65]
Only during the cross examination of Sihle by Mr Beningfield, Counsel
for the defendant, was it faintly and tentatively suggested
that the
“
injuries
to your wrists [were] caused by you being restrained in handcuffs not
by any assaults
.”
When called upon to unpack the question, Counsel stated that
“
the
marks were not as a result of an assault
”,
but “
were
simply marks left by handcuffs that were put on the plaintiff when he
was arrested
.”
Quite correctly so, in my view, no such contention was
persisted in during argument, as indeed the version put to
Sihle was
not consistent with the defendant’s pleaded case or the
testimony given by Constable Mbande and Constable Toni,
[14]
the only defendant’s witnesses.
[66] No account was
given by the defendant’s witness of what had caused the
injuries on the plaintiffs, observed by Dr Boado
shortly after their
release from police custody.
[67] The plaintiffs,
on the other hand, presented a coherent picture regarding how they
were assaulted whilst they were in police
custody. Their
version found corroboration from the testimony of Zembe, Dr Boado and
pictures taken of their injuries upon
their discharge from the
Hospital. I have had no hesitation in accepting the version of
the plaintiffs even in relation to
how they suffered at the hands of
the police.
[68]
The assault meted out by the police on the plaintiffs caused the
injuries that became the subject of the plaintiffs’
testimony.
The existence of these injuries was confirmed by Dr Boado
during her testimony. Sihle had a swelling on
the right hand
and handcuff marks on both wrists. He bore a swelling on the left
foot and on the right leg. He also suffered
from a crush
syndrome.
[15]
Vizicelo
sustained an abrasion on both forearms, handcuff marks on both
wrists, swelling on both hands and abrasions on both
lower limbs. He,
too, is on record as having suffered from a crush syndrome. Dr
Boado also observed redness on Vizicelo’s
eyes, which she
associated with sub-conjunctiva haemorrhage, caused by pressure on a
patient’s blood vessels. Evidence
established that
Vizicelo was sprayed with pepper on his eyes. The healed scars
and marks recorded by Dr Boado, however,
cannot be attributed to the
police as they relate to incidents or events that have no bearing on
this action.
E
Conclusion
[69] From the above
synopsis, it does appear that a police raid was conducted at Duncan
Village, East London, pursuant to crime
reports received by members
of the Service, including Constable Mbande and Constable Toni. The
plaintiffs became suspects,
but the suspicion harboured by the police
regarding the plaintiffs’ involvement in criminal activities
fell short of being
reasonable as contemplated in section 40(1)(b) of
the CPA, hence the plaintiffs’ arrest and resulting detention
has been
found to have been unlawful. During the plaintiff’s
interaction with the police, whilst they were in police custody,
they
were assaulted and sustained injuries for which they were
hospitalised and received treatment. The assault was without
justification.
[70] The plaintiffs’
claims must, therefore succeed, with the result, that the following
order is made:
1.
The
defendant is held liable to the plaintiffs in proven or agreed
damages resulting from the plaintiffs’-
(a) arrest on 18
April 2012, in the case of the first plaintiff and 16 April 2012, in
the case of the second plaintiff;
(b) subsequent
detention, up to and including 20 April 2012; and
(c) assault by
members of the South African Police Service, which caused
injuries on them whilst the plaintiffs were in police
custody.
3.
The determination of the quantum of the damages suffered by the
plaintiffs consequent upon their wrongful and unlawful arrest and
detention, and assault is hereby postponed to a date to be arranged
with the Registrar of this Court.
2.
The
defendant shall pay costs of the action incurred to date.
________________
S
M
MBENENGE
JUDGE
OF THE HIGH COURT
Plaintiffs’
Counsel: Mr M M
Chithi
Instructed
by Makaula Zilwa & Co
Mthatha
C/O
Msesiwe Vapi Inc
East
London
Defendant’s
Counsel: Mr P G Benningfield
Instructed
by the Bhisho State Attorney
East
London
Heard
on:
4 to 7, and 24 August 2015
Delivered
on:
08 September
2015
[1]
16
August 2015, in the case of the second plaintiff, and 18 August
2015, in the case of the first plaintiff.
[2]
In
terms of an order of this court dated 15 April 2015
[3]
Act
51 of 1977
[4]
Technical
Response Team
[5]
He
was, at all times relevant hereto, a member of the Service and a
Constable stationed at the Sanlam Building, East London.
He
resigned from the Service to join politics on 31 May 2014.
[6]
Another term
they use for “
firearms
”
[7]
Duncan v
Minister of Law & Order
1986(2)
SA 805 (A) at 818 G-H; and Minister of Safety and
Security
v Sikhotho and Another
2011(1) SACR 315 (SCA) at [6] and [28].
[8]
Constable
Mbande arrested the second plaintiff; Constable Toni arrested the
first plaintiff
[9]
Police
officials are peace officers
[10]
In terms of
section 121
of the
Firearms Control Act 60 of 2000
a person
convicted of possessing an unlicensed firearm may be sentenced to a
fine or to imprisonment not exceeding two years.
This renders
possession of an unlicensed firearm a Schedule one offence as it is
“[
a
]
ny
offence…, the punishment wherefore may be a period of
imprisonment exceeding six months without the option of a fine
.”
[11]
Mvu v
Minister of Safety and Security and Another
2009 (2) SACR 291
(GST) at [9];
Minister
of Safety and Security and Another v Swart
2012 (2) SACR 226
(SCA) at [20].
[12]
R v Van
Heerden
1958 (3) SA 150
(T) at 152;
S
v Reabow
2007 (2) SACR 292
(E) at 297 c-e.
[13]
Mabona
and Another vMinister of Law and Orders
1988
(2) SA 654
(SE) at 658 F-H;
Manqalaza
v MEC for Safety and Security
2001(3) AllSA 255 (TK) at [18];
Gellman
v
Minister
of Safety and Security
2008(1) SACR 446 (W) at [73] and [74].
[14]
The
principle being that a pleador cannot be allowed to direct the
attention of the other to one issue and then, at the trial,
attempt
to canvass another (
Nyandeni
v Natal Motor Industry Ltd
1974
(2) SA 274
(D) at 297B-C;
also
see Kali v Incorporated General Insurances Ltd
1976
(2)179 at 182A.)
[15]
Clinical
condition caused by compression of muscle with subsequent
rhabdomyolysis which can then cause the complications of electrolyte
disturbances, fluid sequestration and myoglobinuria.