Brief Summary

Delict — Unlawful arrest and detention — Plaintiff claiming damages for assault, unlawful arrest, and detention by police — Defendants admitting arrest but asserting it was lawful under s 40(1)(a) of the Criminal Procedure Act — Magistrate dismissing plaintiff's claim, finding evidence of police witnesses corroborated and that plaintiff acted aggressively — Appeal against dismissal on various grounds, including credibility of witnesses and failure to prove unlawful arrest — Court finding that the onus to justify the arrest rested on the defendants, and that the plaintiff had not been afforded a fair opportunity to present his case.

Comprehensive Summary

Summary of Judgment

1. Introduction

This matter concerned an appeal to the High Court (Northern Cape Division, Kimberley) against the dismissal of a civil claim for damages arising from alleged assault, unlawful arrest, and unlawful detention. The appellant, Mr Fernando Theodore Kivedo (plaintiff in the trial court), sued the Minister of Safety and Security (first respondent/defendant) and Constable Danzel Lansberg (second respondent/defendant) for general damages of R100 000.

The matter originated as an action in the Magistrates’ Court. At the conclusion of the trial, the Magistrate dismissed the plaintiff’s claims for unlawful arrest, unlawful detention, and assault with costs. The plaintiff appealed that outcome to the High Court, contending, in substance, that the Magistrate had erred in credibility findings, in the assessment of contradictions in the evidence, and in concluding that the arrest and detention were lawful and that the assault was not proved.

The dispute arose from police conduct during and after an incident described by police witnesses as a street fight in Kimberley on the night of 27 August 2010, and it ultimately required the appeal court to evaluate, on the record, whether the defendants had lawfully arrested and detained the appellant and whether the appellant had proved an assault by police.

2. Material Facts

On 27 August 2010, members of the SAPS, including Constables Aubrey Kola and Rasekoai (Flying Squad), responded to information received during patrol that there was a gang fight in progress at the corner of Phakamile Mabija Road and Mathews Street. On arrival they observed a Netcare 911 ambulance that had been damaged, and the driver, Ms Petronella Fourie, was present. Police evidence was that, upon seeing the police, some people fled and the fighting stopped temporarily.

At the scene, Constable Lansberg was already present and was surrounded by the appellant and two other men later identified as Mr Theomur “Pidoi” Cupido (the appellant’s cousin) and Mr Dimitri Kochling. Police witnesses described the three as shouting, swearing, and armed with stones, with one allegedly holding a beer bottle. As the situation became more confrontational, the police arrested the appellant, Cupido, and Kochling, transported them to the police station, and detained them.

It was common cause that the arrest was without a warrant and that the appellant’s detention lasted four hours. It was also common cause that the appellant was issued with a J534 written notice to appear in court, and that he ultimately never appeared in court and did not pay an admission-of-guilt fine. Constable Kola’s evidence was that, upon arrival at the police station, he charged them with causing a nuisance under Regulation 15(e) of the Sol Plaatjie Municipal Law Enforcement By-law, 1 of 2006, and that it was their practice to detain such offenders for four hours with the intention of “calming them down”.

The appellant’s version differed materially on the assault and the underlying conduct. He testified that he had been at home and went outside only after hearing noise relating to a disturbance involving his brother. He maintained that he was not part of the fight, was unarmed, did not damage the ambulance, and did not behave violently towards police. He alleged that Constable Lansberg assaulted him at the scene by grabbing him, bumping him against a police vehicle, slapping him, and throwing him into the police van. He further alleged additional assaults at the police station by Lansberg and unknown officers, including slapping, punching, being thrown to the ground, and being kicked in the face.

The appellant produced photographs of injuries and a medical report (J88, admitted by consent). The J88 recorded abrasions to areas of the face and noted a conclusion that the injuries were consistent with being kicked or struck in the face. The defendants denied any assault by police. The court noted that there had been fighting between rival groups before police arrived, and that this factual context was relevant to whether injuries could have been sustained independently of police conduct.

3. Legal Issues

The appeal raised three interrelated legal questions.

First, the court was required to determine whether the arrest of the appellant without a warrant was lawful, which depended on whether the arresting officers acted within the ambit of statutory authority, particularly section 40(1) of the Criminal Procedure Act 51 of 1977. This involved an application of legal standards to contested facts (notably whether an offence was committed in the presence of the police).

Second, the court had to determine whether the appellant’s four-hour detention after being issued with a J534 written notice was lawful and constitutionally permissible, engaging both statutory interpretation (particularly section 56 of the Criminal Procedure Act) and constitutional norms under section 12(1) of the Constitution. This was largely a question of law and application of law to common-cause facts (that detention occurred and that a J534 was issued), with an evaluative inquiry into the defendants’ justification for continued detention.

Third, the court had to decide whether the appellant had proved, on a balance of probabilities, that he was assaulted by police, which was predominantly a factual issue turning on probabilities, credibility, and the consequences of how the case was conducted, including whether the appellant’s version was properly put to key witnesses in cross-examination.

4. Court’s Reasoning

The court approached the matter on the basis that an arrest and detention constitute an interference with liberty and implicate constitutional rights. It accepted that, where arrest and detention are admitted, the burden to justify the deprivation of liberty rests on the party asserting lawfulness. In addressing this, the court relied on authority confirming that an arrest must be justified within the scope of the empowering statute, and that interferences with liberty are prima facie unlawful absent justification.

On the arrest, the court assessed the competing versions concerning what occurred at the scene. It accepted the police evidence that there was a factional fight in the street and that the appellant and two others remained shouting, swearing, and acting confrontationally in the presence of police when others fled. The court noted that this description of events was not meaningfully displaced on the record and considered that, given the confrontational scene and the appellant’s conduct as described by the police, the officers were justified in apprehending him. In consequence, the court did not interfere with the conclusion that the arrest fell within the permissible scope of section 40(1)(a) of the Criminal Procedure Act, namely arrest without warrant of a person who commits an offence in the presence of a peace officer.

The court then separated the question of detention from the question of arrest. It treated the post-arrest detention as requiring its own justification, particularly because the appellant had been issued with a J534 written notice to appear. The court emphasised the statutory effect of section 56(2)(e) of the Criminal Procedure Act, which provides that where an accused is in custody and a written notice is handed to the accused, the effect is that the accused must be released forthwith from custody. Against this statutory framework, the court evaluated the defendants’ explanation that it was their practice to detain nuisance offenders for four hours to “calm them down”. The court found no evidential basis that the appellant remained violent or unmanageable at the police station; indeed, Constable Kola conceded that at the station they were not making such a loud noise and he could speak to them. The court therefore held that the continued detention was unreasonable, not justified by the evidence, and inconsistent with the statutory scheme governing written notices and release. The court concluded that the Magistrate had misdirected herself in upholding the lawfulness of detention, and that the detention infringed the appellant’s constitutional rights under section 12(1)(a).

On the assault claim, the court treated the plaintiff as bearing the onus to prove that police assaulted him. While the appellant relied on injuries and a J88 consistent with being kicked or struck in the face, the court emphasised that there had been violence before the police arrived, which meant that injury alone did not establish police assault. The court attached decisive significance to the manner in which the plaintiff’s case was put in cross-examination. It noted that the appellant’s detailed identification of Constable Lansberg as an assailant (including reliance on the name tag) was not put to Lansberg in cross-examination. Similarly, it was not put to Constable Kola that he had assaulted the appellant. The court applied the principle that if a party intends to contend that a witness is untruthful or that the party’s version contradicts the witness on a material issue, that challenge must be put clearly to the witness to afford an opportunity to respond. In the absence of that procedural engagement, and given the context of pre-police violence, the court found it probable that the appellant’s injuries could have been sustained during the earlier fight and that the appellant failed to discharge the onus to prove assault by police on a balance of probabilities. The assault claim therefore could not succeed.

In relation to costs, the court considered that costs are discretionary and that, although the appellant failed on unlawful arrest and assault, he was substantially successful on the key deprivation of liberty issue (unlawful detention). It considered a 75% costs award in the appellant’s favour to be fair to both parties.

5. Outcome and Relief

The appeal succeeded in part. The High Court set aside the Magistrates’ Court order and replaced it with an order declaring that the appellant’s detention was unlawful, while dismissing the claims for unlawful arrest and assault.

Because the trial court had dismissed the claim entirely, the issue of quantum for damages arising from unlawful detention had not been determined. The High Court therefore remitted the matter to the trial Magistrate to determine quantum in terms of the applicable rules of court.

On costs, the High Court ordered the first respondent (the Minister of Safety and Security) to pay 75% of the appellant’s legal costs in the trial court and 75% of the appellant’s costs of appeal.

Cases Cited

Minister of Law and Order v Dempsey 1988 (3) SA 19 (A).

Ex parte Minister of Safety and Security and Others: In re S v Walters 2002 (2) SACR 105 (CC).

Zealand v Minister of Justice and Constitutional Development and Another [2008] ZACC 3; 2008 (2) SACR 1 (CC).

President of the Republic of South Africa and Others v South African Rugby Football Union and Others 2000 (1) SA 1 (CC).

Legislation Cited

Constitution of the Republic of South Africa, 1996, section 12(1)(a), section 12(1)(b), and section 12(1)(c).

Criminal Procedure Act 51 of 1977, section 40(1)(a), section 40(1)(f), section 56(1), section 56(2), and section 57.

Sol Plaatjie Municipal Law Enforcement By-law, 1 of 2006, Regulation 15(e).

Rules of Court Cited

The judgment recorded that the matter was remitted to the trial Magistrate to determine quantum “in terms of the Rules of Court”, without identifying a specific rule.

Held

The court held that the appellant’s arrest was justified on the version accepted by the court and fell within the permissible scope of arrest without warrant under the Criminal Procedure Act, with the result that the claim for unlawful arrest was dismissed.

The court held that the appellant’s four-hour detention after being issued with a J534 written notice to appear was unlawful, because the statutory effect of issuing such a notice to a person in custody is that the person must be released forthwith, and the evidence did not justify continued detention on the basis of “calming down”.

The court held that the appellant failed to prove, on a balance of probabilities, that police assaulted him, particularly in light of the pre-existing violence at the scene and the failure to put the key allegations to the police witnesses in cross-examination, and accordingly the assault claim was dismissed.

LEGAL PRINCIPLES

An arrest admitted by the defendant must be justified by the defendant within the scope of the empowering statute, and the onus to justify the lawfulness of an arrest lies on the party alleging that it was lawfully made.

Interferences with physical liberty are prima facie unlawful, and once a claimant establishes that a deprivation of liberty occurred, the burden shifts to the defendant to justify the deprivation, consistent with constitutional protections of freedom and security of the person.

Where a peace officer issues a written notice to appear in court to an accused who is in custody, the statutory consequence under section 56(2)(e) of the Criminal Procedure Act is that the accused must be released forthwith, and continued detention requires lawful justification consistent with the statutory scheme and constitutional norms.

A party who alleges misconduct by a witness (including an alleged assault by that witness) must put the substance of the impeaching version to the witness in cross-examination so that the witness has an opportunity to respond; leaving material allegations unchallenged may justify treating the witness’s evidence as accepted on that point.

In a civil claim for assault, the plaintiff bears the onus to prove the assault on a balance of probabilities, and the existence of injuries consistent with assault does not, without more, establish that the injuries were inflicted by the alleged assailant where alternative explanations supported by the factual context remain reasonably probable on the record.

Kivedo v Minister of Safety And Security and Another (CA&R 76/13) [2014] ZANCHC 23 (31 October 2014)