GoPaul v Minister of Police and Another (140/2005) [2013] ZAKZDHC 65 (27 November 2013)

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[2013] ZAKZDHC 65
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GoPaul v Minister of Police and Another (140/2005) [2013] ZAKZDHC 65 (27 November 2013)

52 IN THE KWAZULU
NATAL HIGH COURT, DURBAN
REPUBLIC OF SOUTH
AFRICA
CASE NO. 140/2005
DATE:
27 November 2013
In the matter
between:
MOHAN
GOPAUL
.................................................................
PLAINTIFF
and
MINISTER OF
POLICE
...........................................
FIRST
DEFENDANT
LESLIE
GOVENDER
..........................................
SECOND
DEFENDANT
JUDGMENT
NDLOVU
J
Introduction
[1] The plaintiff, Mr Mohan Gopaul, sued the defendants, jointly and
severally, the one paying the other to be absolved, for damages
in
the sum of R400 000 plus interest and costs, arising from the
alleged wrongful and malicious arrest and detention of the
plaintiff
at the hands of the second defendant, Warrant Officer Leslie
Govender, and other members of the South African Police
Service
(SAPS); and who at all material times hereto allegedly acted in the
course and scope of their employment with the first
defendant. The
defendants denied liability.
[2] At the commencement of this trial the parties agreed to seek an
order separating the issues, in that the trial should proceed
on the
issue of liability and the issue of quantum be stayed for
determination at a later stage. The court granted the order
accordingly, in terms of rule 33(4) of the uniform rules of the
court.
[3] Shortly before this judgment was handed down, the court ordered,
by agreement between the parties, that the original designation
of
the first defendant (i.e. Minister of Safety and Security) be
substituted with the designation of “Minister of Police”,

in light of the subsequent name change in the ministerial portfolio
concerned. (Rule 15(2)).
The evidence
[4] The evidence for the plaintiff was led from the plaintiff and his
wife, Mrs Radhika Gopaul; whilst that of the defendants was
adduced
from the second defendant and certain members of SAPS, being Sergeant
Jayandren Thaver, Captain Logan Naidoo, W/O Njabulo
Felix Nxumalo,
Captain Sipho Eric Ngwenya and Sergeant Ramachandran Moonsamy.
[5] The plaintiff, aged 49 years, told the court that he resided at
10 Aloe Road, Amanzimtoti, a residential suburb south of Durban.
He
was a Unisa MA graduate, a former school teacher, author and
publisher of school books. He said after his resignation from
the
teaching profession he occasionally assisted his wife in her business
of tarmac driveway construction. The business was incorporated
and
registered in his wife’s name under the name Ace Driveways CC
(the close corporation) and had been in operation since
1981.
[6] In assisting his wife he acted as a consultant – that is, a
go-between the prospective client and his wife. He would
consult
with the prospective clients, discuss the proposed transaction and,
after agreeing with his wife on the proposal, the transaction
would
then be concluded with the client. He also rendered physical
assistance to the business by visiting the construction sites
where
he would supervise the workers.
[7] The plaintiff testified that he knew the second defendant since
on or about 4 September 2003. He received a phone call whilst
at his
office in Amanzimtoti from the second defendant who was requesting a
quotation for tarring his driveway at his home at 14
Tensing Way,
Everest Heights in Verulam. The plaintiff had then proceeded to the
second defendant’s home for the quotation
which amounted to
R6 520. The second defendant formally accepted the quotation
and signed it. The plaintiff’s wife
signed on behalf of the
business. The business was in fact a close corporation and his wife
was the sole member thereof.
[8] Indeed, on the following day (5 September 2003) the plaintiff and
his wife proceeded to the second defendant’s home for
site
inspection. He told the court that the tarmac driveway construction
involved quite a number of stages, namely, grass removal,
excavation
and preparation of the ground, applying crushed stones, putting kerbs
on either side and finally laying the tar. The
actual work was to be
started on Monday 8 September 2003. The close corporation had five
employees who would perform the actual
driveway construction.
[9] As a formal requirement, the second defendant had deposited with
the plaintiff the sum of R520 cash on 4 September 2003 on
condition
that the balance would be paid on completion of the work.
[10] When the plaintiff arrived at the second defendant’s place
on Monday, 8 September 2003, the second defendant asked for
a further
quotation to tar the additional area adjoining the driveway. The
plaintiff issued an additional quotation of R2 019,
which the
second defendant accepted and signed the quotation document. The
total price for the complete job was therefore R8
610.
The plaintiff indicated that he did not ask for a deposit in respect
of the second quotation. He also explained that the
second quotation
was not done on a separate document but was incorporated at the
bottom of the first quotation which was then duly
signed by both the
second defendant and the plaintiff’s wife (see exhibit C at p.
31).
[11] According to the plaintiff the construction
work was commenced and progressed for six days, by which time about
80% of the
work had been completed. That was on Friday (12 September
2003). The final tarring was due to begin on the following Monday,
the 15
th
.
The plaintiff confirmed that during the six day period when the work
was in progress, the second defendant had made separate
payments
which had totalled up to R5 000. Therefore, the balance was R3 610.
[12] Over the weekend preceding Monday the 15
th
there was some heavy rainfall which
made the soil condition unfavourable for the tarring to be proceeded
with immediately. On that
Monday the plaintiff phoned the second
defendant and informed him that due to the wet weather over the
week-end the construction
team would not be coming as it would not be
suitable to lay the tar under those conditions. He said the second
defendant was not
impressed by what he heard. The second defendant
was agitated and he insisted that the construction team must come and
complete
the job.
[13] According to the plaintiff, although the rain had slowed down on
Monday it was still unsuitable for the tarring. He said
he tried to
explain to the second defendant that the tar was normally applied at
a temperature of 170° centigrade and that
this temperature would
not hold if applied in the weather conditions that prevailed at the
time. He explained to the second defendant
that the soil condition
was not favourable especially because it was clay soil. He pointed
out that clay soil retained a lot of
water and as a result it
required much longer drainage time before the tar could be applied.
It would require up to three days
before the soil condition was
suitable for tarring. He further stated that the fact that the sun
had come out did not necessarily
mean that the soil underneath was
also dry. However, despite this explanation, the second defendant
seemed not interested and
not prepared to understand, as they were
speaking over the phone. He said the second defendant had then hung
up the phone.
[14] On the same day (Monday the 15
th
) the plaintiff and
his workers proceeded to another site in Yellowwood Park where they
were to do excavations on the client’s
premises. He sought to
distinguish that instance from the second defendant’s position
in that to do an excavation, the weather
condition was not a problem.
In other words, excavation could be done even in wet weather,
something which was impossible to do
in respect of tarring. He said
whilst they were at the Yellowwood Park site, he received a phone
call from the second defendant
who reported to him that he (the
second defendant) had personally physically felt the driveway with
his feet and was satisfied
that it was hard and dry. On this basis,
the second defendant insisted that the plaintiff and his team must
come over to lay the
tar. The plaintiff said he told the second
defendant that he (the second defendant) was not an expert in
conducting such procedures
whereas the plaintiff knew what he was
talking about. The time then was about 10h00.
[15] The plaintiff pointed out that when he discussed with the second
defendant over the phone, he had noted that the second defendant
had
become very aggressive. At that time the second defendant had made
several threats to him over the phone. The second defendant
had
demanded to know where the plaintiff was so that he would come and
show the plaintiff what he could do to him. He said he
urged the
second defendant not to be angry because that was how this kind of
work was done. The second defendant kept on phoning
him, as he put
it, almost every ten minutes throughout the day, continuing to make
threats. At that stage the second defendant
disclosed to the
plaintiff that he was a policeman and that he could arrest the
plaintiff and then show him what he could do to
him. The plaintiff
said at that stage he was already aware that the second defendant was
a police officer. He had seen him in
police uniform whilst the
plaintiff and his team were working on the second defendant’s
property. He had also seen the second
defendant driving a marked
police vehicle, an open bakkie.
[16] The plaintiff further testified that the second defendant was
not living on the property at the time. The second defendant
had
told him that he was living with his parents nearby and that he had
just bought the property. He wanted to fix the driveway
before he
moved into the property to start living there. On Thursday (18
September 2003) the plaintiff proceeded to the second
defendant’s
property only to find that the tar had already been laid by someone
else. However, he found nobody on site.
[17] As stated earlier, the balance owing by the second defendant was
R3 610. According to the plaintiff, the second defendant
had
agreed that he would himself pay R3 000 for the tar which he would
acquire from a local supplier in Verulam. In other words,
in terms
of the agreement, the balance was only R610 which was due and payable
by the second defendant to the business on completion
of the work.
The plaintiff further stated that the tar would be purchased by the
second defendant on 18 September after the plaintiff’s
arrival
on site. The plaintiff had also verified and confirmed with the
local supplier that the required tar would cost R3000.
The agreement
that the second defendant would pay for the tar was oral.
[18] On the following day (19 September 2003) the plaintiff prepared
a letter to the second defendant, which was signed by the
plaintiff’s
wife, and the letter was part of the plaintiff’s bundle
(Exhibit “A”, at page 22). It reads
as follows:
“
Our contract dated 4
September 2003 refers.
We wish to inform you that due
to the recent rain we were unable to carry out our work at your
premises. However, we have so far
levelled your driveway, applied
weed poison, applied the crusher base cores and inserted the kerbs.
For this, we have been paid
R5000,00 as work in progress. At a
contract price of R8610, 00 a balance of R3610,00 is set aside for
the final surfacing with
hot premix. This amount shall be paid to
the tar supplier by yourself, on our arrival to your premises to
complete the task.
On arrival we were surprised to
find that you had completed the surfacing of your driveway by another
contractor without informing
us. As a result hereof, you have
breached our contract and we therefore reserve our rights to proceed
with a civil claim against
you. We also advise you that you have
forfeited all guarantees offered to you thereof.
Yours sincerely,
R Gopaul for Ace Driveways CC.
Mrs Radhika Gopaul (Sole
member)”
[19] The plaintiff testified that, despite he and his wife having
reserved their rights to sue the second defendant, they had decided

not to pursue the matter for a while, until the events of February
2004 discussed hereunder.
[20] On 10 February 2004 at about 10h00 whilst the plaintiff and his
wife were returning from a visit in Phoenix and proceeding
to their
home in Amanzimtoti travelling on the N2 freeway in his 1 ton Nissan
bakkie, he was suddenly flagged down to stop by two
police officers
who were standing at the side door of a big police truck (Inyala)
which was on the right hand side parallel to
the plaintiff’s
vehicle. Thereupon the plaintiff pulled up next to the road and the
Inyala stopped about 5 metres in front
of his vehicle. Two police
officers came up to him and one of them ordered him to get out of the
vehicle and leave his keys behind
with his wife and take only his
cell phone with him. He asked the police officers why he had to do
that, but they insisted that
he must follow them. He then got out
and went to the Inyala.
[21] When he got to the Inyala, one police officer pushed him on his
back into the truck whilst at the same time hitting him at
the back
of his head with an open hand once. Once he got into the truck he
noticed that behind the steering wheel was the second
defendant. At
that stage he realised that all that was happening to him had to do
with his driveway construction dispute with
the second defendant.
One police officer whose chest badge reflected his name to be
Constable Thaver held the plaintiff’s
hands behind his back
whilst the second defendant came up to him. The second defendant
demanded him to pay up forthwith the sum
of R3000 which he alleged
the plaintiff had stolen from him. The plaintiff assumed that the
second defendant was referring to
the R5000 that he had paid for the
construction work, but it was not immediately clear to him why the
second defendant was demanding
R3 000 only.
[22] The second defendant told the plaintiff that a warrant of arrest
against him had been issued by a certain Inspector Ngwenya
and that
if the plaintiff did not pay up there and then, the second defendant
would arrest him and have him detained at Verulam
police cells.
There were about six police officers in the Inyala, including the
second defendant. Fearing that he would be arrested
and detained,
the plaintiff agreed to pay the amount demanded and asked the second
defendant to phone his home at 16h00 that same
afternoon. He said he
only made this promise to pay in order to escape the threatened
arrest. From there he drove to the SAPS’s
area commissioner’s
offices in Prospecton in Amanzimtoti to report the incident. There
he was advised to report the matter
to Amanzimtoti police station.
[23] During the afternoon of the same day (10 February 2004) the
plaintiff received a call (on his home land line phone) from the

second defendant. His wife had answered the phone and thereafter
handed the phone to the plaintiff telling him that it was the
second
defendant on the line. The second defendant told the plaintiff that
he was on his way to the plaintiff’s house to
collect the money
that the plaintiff had promised him. The plaintiff told him that he
should not come because he did not owe him
any money. According to
the plaintiff, at that stage the second defendant started shouting
and threatening that he was going to
come. However, he did not come
on that day.
[24] On the following day (11 February 2004) at about 11h00 the
plaintiff and his wife were seated and relaxing at home when the

plaintiff heard someone shouting his name “Ashley”
outside. He said Ashley was the name that he was commonly known
by.
When he went out he noticed that there were three police officers
standing in front of his gate. He identified one of them
as
Constable Thaver and the other two he learnt later to have been
Sergeants Moonsamy and Nxumalo. Constable Thaver said they
had come
to collect the money (i.e. R3000) on behalf of the second defendant.
The plaintiff refused to pay the money. Thereupon
Constable Thaver
told him that he was under arrest for stealing the second defendant’s
money.
[25] At that time the plaintiff said he was only wearing a pair of
shorts, slippers and a vest. He then told the police officers
to
allow him to get into the house to change and also for his wife to
get the gate key so that the officers would come in. However,
before
that could happen, Constable Thaver jumped over the driveway gate and
advanced straight to the plaintiff. He handcuffed
the plaintiff and
then hit him on the head and on his back several times. When the
plaintiff’s wife tried to intervene,
Constable Thaver slapped
her with his right hand across her face and pushed her against the
door gate which was opened. At that
stage Sergeant Nxumalo came up
to intervene and pushed Constable Thaver aside, telling him to stop.
[26] The plaintiff was still handcuffed. He was then placed at the
back of the open bakkie. The handcuffs were released from
his one
wrist and tied to one of the iron or metal bars fixed vertically
behind the bakkie’s rear window. The plaintiff’s

neighbours had come out of their houses and were watching the scene
of the plaintiff’s arrest. The bakkie was a marked police

vehicle with police number plates.
[27] The plaintiff said that they took him to Amanzimtoti police
station where he saw all the police officers who had been in the

Inyala on the previous day. He said he was not taken into the charge
office but the vehicle was simply driven inside the station
premises
and straight to the back. Other police officers surrounded the
vehicle, including the second defendant. At this stage
they began
interrogating him again about the money, saying that if he did not
pay they would take him to the Verulam police station
and lock him
up. They told him to ask his wife to go to the bank and get money.
He told the second defendant that he had money
in the bank but he was
not prepared to give it to him as he did not owe him any money. He
said that the second defendant said
he thought he was clever.
[28] He was then taken to the Inyala which was standing in the
parking lot in front of the police station. As he was being escorted

to the truck, the one handcuff was tied around his wrist whilst the
other one was being held by one policeman. He said he told
the
policeman that this was a civil matter but the policeman brushed that
aside. When he was placed in the Inyala the other loose
handcuff was
attached or tied to the seat inside the truck. He further testified
that the policemen at Amanzimtoti police station
generally knew him
very well and that he felt humiliated by what was happening to him.
[29] They then left Amanzimtoti police station and proceeded
northwards. He said he was verbally abused during the journey by
all
the policemen in the Inyala but mostly by Constable Thaver. He
further said he was very agitated by this abuse but Sergeant
Nxumalo
who was sitting next to him advised him not to say anything to
provoke them to do worse. He said the second defendant
was not
present at that stage as he had remained at Amanzimtoti police
station. The police officers present were Constable Thaver,
Sergeant
Moonsamy, Captain Naidoo, Sergeant Nxumalo and another Indian male
officer, whose name he did not know.
[30] He said that whilst on the N2 freeway just before KwaMashu
turn-off Constable Thaver asked him for his home phone number which

he gave him. Constable Thaver then phoned the plaintiff’s wife
and he heard Constable Thaver saying that the plaintiff was
being
taken to KwaMashu police station where “
his ass would be
screwed
” which the plaintiff understood to mean he would be
raped. Constable Thaver then told plaintiff’s wife that they
(i.e.
Constable Thaver and his colleagues) would then rape her whilst
the plaintiff was in detention. According to the plaintiff he heard

all this when Constable Thaver spoke to his (the plaintiff’s)
wife on the phone.
[31] Eventually they arrived at Verulam police station. The Inyala
was parked in the parking lot and the plaintiff remained there
with
Captain Naidoo and Constable Thaver whilst the others went inside the
police station. The plaintiff said that Captain Naidoo
and Constable
Thaver repeatedly slapped him on either side of his face. By then
it was 12h15. They had taken him from his house
at about 11h20.
This was all happening on 11 February 2004.
[32] The plaintiff said that whilst he was being slapped by Captain
Naidoo and Constable Thaver they kept alternately saying: “
This
is for Leslie
” and “
This is for stealing R3 000
”.
Leslie is the second defendant. Then Sergeant Nxumalo appeared and
took him away into the charge office. His handcuffs
had been
detached from the seat of the Inyala. The plaintiff said he waited
for a while in the charge office. He enquired from
the charge office
staff as to what would happen and they said Inspector Ngwenya would
attend to him.
[33] At 12h30 Inspector Ngwenya arrived and said to him “
My
boys have got you. Wait, I’ll come later on
”.
However, he did not return. The charge office staff then formally
charged him with theft. His rights in terms of the
Constitution were
explained to him. A document was given to him and he was told to
read it and then asked if he understood it,
which he said he did.
This document explained his Constitutional rights and was handed in
and marked as exhibit “B”.
[34] The plaintiff said that whilst waiting in the charge office
Captain Naidoo came in and told him that he was going to rape
his
wife. He said he was worried because his wife was alone at home.
Captain Naidoo had then left. The plaintiff said he took
Captain
Naidoo’s threats seriously. He asked for a phone and one of
the charge office staff gave him one to use. He phoned
his wife and
told her that he was at the Verulam police station. Thaver had
earlier phoned her and misled her that the plaintiff
would be taken
to the KwaMashu police station. The plaintiff also alerted his wife
about Captain Naidoo’s threats. He further
asked her to try
and get him an attorney or someone to assist him. This was at about
13h30 or 13h45 (on 1 February 2004). He
was then detained in the
police cells at about 14h30.
[35] The plaintiff said in the afternoon his wife visited him in the
police cells and told him that she tried to contact Superintendent

Govender of Verulam police station to secure his release, but he was
not present. She had asked for a senior officer and was told
that
Superintendent Govender was senior, although she did not know him.
[36] The plaintiff further said he spent the night of 11 February
2004 in Verulam police cells with two male inmates. The conditions

in there were deplorable and unhygienic, he described. He had to
sleep on the floor on a dirty carpet, the toilet stank. The
food was
served at about 18h00, but he did not eat it. He had last eaten
before his arrest at about 10h30. He did not have lunch
and dinner
that day.
[37] He said that during the night he was detained he had to watch
naked inmates showering near his cell with only a grill or gate

separating them. He did not shower that night. He had no pillow.
There were no blankets or mattresses. He slept in his clothes.
He
said the other inmates also complained. His wife had brought him
clean clothes which, however, he decided to wear on the following

day. He said he could not sleep that night. On the following
morning (12 September 2004) breakfast was served and he had a cup
of
tea with sugar and two slices of bread.
[38] At 11h30 he was called to the charge office and then taken to
Superintendent Reuben Govender’s office. His wife was
then
present. Superintendent Govender asked him what had happened and he
told him everything. Superintendent Govender confirmed
that this was
indeed a civil matter which should have gone to the civil court and
further that the plaintiff should not have been
arrested in the first
place. Superintendent Govender then called for Inspector Raju and
instructed him to release the plaintiff.
Inspector Raju took the
plaintiff to a Captain Govindin to sign documents for his release.
Captain Govindin initially refused,
saying that his son-in-law (the
second defendant) wanted the plaintiff to stay in the cells until he
had paid the money. Plaintiff’s
wife had brought the contract
documents with her which the plaintiff showed to Captain Govindin who
also realised that the second
defendant was wrong to have the
plaintiff arrested. Captain Govindin had then held up his hands in
disbelief and said “
Oh God, what has my son-in-law done?
”.
Captain Govindin then signed the plaintiff’s release
documentation and the plaintiff was eventually released at about

13h00 on 12 February 2004.
[39] The plaintiff further testified that three weeks after his
release he was called by Inspector Suraj of Berea police station
and
asked to come to that station to discuss the case of assault which
the plaintiff had opened against the police officers. The
plaintiff
said he had reported the case at the Amanzimtoti police station and
it was transferred to Berea police station. On the
following day the
plaintiff and his wife went to Berea police station and he was
surprised to see all the officers who had assaulted
and abused him,
including the second defendant, being present there. He was then
asked by Inspector Suraj to relate what had taken
place and who had
assaulted him. Inspector Suraj informed him that the purpose of the
meeting was to try and mediate the dispute.
[40] The plaintiff said that there was then a heated argument. The
second defendant stood up and with a fist gesture threatened
to hit
the plaintiff in Inspector Suraj’s presence. Inspector Suraj
then asked all the officers to leave the office. There
were six of
them namely: the second defendant, Captain Naidoo, Sergeants Moonsamy
and Nxumalo, Constable Thaver and an unknown
Indian officer.
Inspector Suraj told the plaintiff that it seemed to him a waste of
time for the plaintiff to pursue the matter
because the collection of
evidence would be a problem since the officers concerned were not
co-operating with him. Inspector Suraj
then enquired from the
plaintiff if he wanted, as he put it, “
to cancel the
charge
”. Considering his position the plaintiff decided to
withdraw the charge and he signed the withdrawal statement
accordingly.
He pointed out that he thought Inspector Suraj was only
trying to protect his colleagues. He and his wife then left Berea
police
station and nothing further happened thereafter.
[41] After a long time the plaintiff received a call from Inspector
Ngwenya who informed him that the State prosecutor had declined
to
prosecute him on the charge laid against him by the second defendant,
which then closed the matter. The plaintiff submitted
that his
arrest and detention were wrongful and malicious and should never
have happened. He considered that the second defendant
applied
illegal tactics to try to get money out of him. The plaintiff said
that he suffered severe damages as a result of this
incident. He
said that there was no justification in what the police did to him.
He further submitted that all the policemen
concerned were acting in
the course and scope of their employment with the defendant and, on
that basis, the first defendant was
jointly liable for damages that
he suffered. He met his attorney and counsel for consultation and it
was counsel who had decided
to cite the second defendant as such.
[42] Under cross-examination, the plaintiff confirmed that he was no
longer employed by the Department of Education as a teacher.
He
helped his wife with the construction of driveways. They both did
quotations and concluded transactions on behalf of the business.
He
supervised the workers. His wife purchased the material. He further
confirmed that on 4 September 2003 (the first day he
spoke to the
second defendant) his wife answered the phone and gave him the call
as the second defendant was in a hurry. He arranged
to go and see
the second defendant and he gave him a quotation verbally. All the
money was paid to his wife, including the R520
deposit. However, he
acknowledged that from a practical point of view he was in charge of
the business.
[43] The plaintiff said the second defendant did not say why his
quotation was urgent. It was put to the plaintiff that the second

defendant wanted the driveway to be tarred urgently because his wife
had given birth to their second child and he needed to move
into his
new house because where they were staying was crowded. The plaintiff
said he did not know anything about that.
[44] The plaintiff reiterated that the construction work which was
already done on the second defendant’s property was about
80%
of what he had been contracted by the second defendant to do. What
remained was only the actual tarring which would have taken
about
half a day to complete.
[45] The plaintiff was asked if he knew a Mr Richards of a driveway
construction company or firm known as Tri-Star, to which the

plaintiff said he knew Mr Richards only by association because they
were both involved in the same industry. He denied that Mr
Richards
had phoned him to advise that he (Mr Richards) had completed the job
at the second defendant’s property. He denied
that he told the
police so. When it was put to him that this averment appeared in his
statement that he made to the police, he
alleged that he had not read
the statement but only signed it. According to him, there would have
been no reason for Mr Richards
to phone him since he had no dealings
with him. He denied that he told Mr Richards that he had made a
profit of R3 000 out of
the second defendant’s work. He
vehemently denied that Mr Richards phoned him on 17 September 2003 to
notify him that he
(Mr Richards) would be going to complete the job
at the second defendant’s place. He further said that when he
came to the
second defendant’s property on 18 September the
second defendant was not present and it was on that day that he
noticed that
the tarring of the driveway had been completed by
someone else. He denied that on that day Mr Richards was present at
the premises,
busy completing the job.
[46] The plaintiff further stated that he was traumatised by the
manner that the police physically manhandled him on 10 February
2004,
which amounted to assault. However, he did not receive any medical
attention as a result thereof. After his arrest on 11
February 2004
he had reported about the assault on him by the police. He
reiterated that he was again assaulted by the police
on 11 February
when they arrested him. He denied that on 10 February 2004 at about
16h00 Captain Naidoo phoned and advised him
that he was under arrest
and that he must come to Verulam police station.
[47] The plaintiff’s wife, Mrs Radhika Gopaul, testified and
confirmed that on 4 September 2003 she received a call from
the
second defendant who requested a quotation for the driveway
construction to be done on his property in Verulam. She and the

plaintiff had gone out for site inspection and the second defendant
was furnished with the quotation for R6 520 which the
second
defendant accepted. The second defendant then paid a deposit of
R520. She said the contract was signed by the second defendant
on
his behalf and by herself on behalf of her business, Ace Driveways
CC, which was to undertake the project. She confirmed that
she was
the sole member of this close corporation and that her husband (the
plaintiff) was assisting her in the business.
[48] Mrs Gopaul confirmed that they had then undertaken the work at
the second defendant’s place for some six days until
Friday 12
September. They were to complete the job on the following Monday,
the 15
th
. However, over the weekend before the 15
th
the rain fell heavily to the extent that they were unable to go and
proceed with the work at the second defendant’s place.
They
had then decided to proceed to another site in Yellowwood Park where
they were to do preliminary preparations. She said
on the following
day, the 16
th
, they continued with the preparatory work in
Yellowwood Park and that at some stage in the afternoon the second
defendant phoned
her on her cell phone demanding that they should
come to his place to finish the work. She had then explained to the
second defendant
that since there had been rainfall over the weekend
and that the ground on the second defendant’s property
consisted of clay
soil, it was not suitable to lay the tar then. She
said the second defendant simply hung up. Shortly thereafter the
second defendant
phoned again and he was then clearly angry and
abusive. He was swearing at her calling her, amongst others, a
“
fuckin’ bitch
”. The plaintiff was present
and he took over her phone and also spoke to the second defendant.
[49] Mrs Gopaul further told the court that she and the plaintiff had
figured out that by Thursday the 18
th
the soil at the
second defendant’s place would have sufficiently dried up and
that it would be the day when they would go
and finish the work.
They had arranged with the second defendant that he would purchase
the tar from a local supplier which was
close to his place for the
sum of R3 000 which the second defendant would pay and that money
deducted from the balance he owed
them. However, when they arrived
at the second defendant’s place, they found that he was not
present and that the tarring
of the driveway had been completed.
[50] Mrs Gopaul further testified about the incident of the 10
th
February 2004 when she and the plaintiff were travelling in their
bakkie and were stopped by the police on the N2 freeway. She

confirmed that the police were travelling in the Inyala truck and the
second defendant was the driver. The police ordered the
plaintiff to
accompany them to the truck. She saw the police pushing the
plaintiff into the truck and hitting him on the head.
She then
decided to go there and enquire what was happening. One of the
policemen was Constable Thaver. She asked Constable
Thaver and other
police officers as to what was going on. Constable Thaver shouted at
her to get back to the bakkie.
[51] She said she then saw the second defendant sitting behind the
steering wheel. She realised that this had something to do
with the
construction of his driveway. The second defendant demanded his
R3 000 from the plaintiff. She told the second
defendant that
the money he had paid so far was used in the construction of his
driveway. She then identified another policeman
by his badge, as
Sergeant Moonsamy. The second defendant had then told Sergeant
Moonsamy to arrest the plaintiff and take him
to Verulam police
station which the second defendant said was in fact on Inspector
Ngwenya’s instructions. The plaintiff,
apparently realising
his imminent arrest, told the second defendant that he would pay the
money and that the second defendant should
fetch it from their house
at Amanzimtoti and gave him their address.
[52] Mrs Gopaul said that from there they went to the area
commissioner’s office in Durban South in Prospecton to lay a
complaint against the second defendant and the other policemen. At
13h30 on 10 February 2004 they opened a charge at Amanzimtoti
police
station with the case number CAS395/03/2004 and the docket was
subsequently transferred to Ridge Road police station.
[53] Mrs Gopaul further testified that on the same day (10 February
2004) at about 16h00 the second defendant phoned their home
landline
number. The second defendant said he was coming to collect the money
promised to him by the plaintiff. However, he did
not come.
[54] On 11 February 2004 at about 11h00 she and the plaintiff were
sitting at home when they heard hooting in front of their gate
and
she said she saw Constable Thaver and Sergeant Moonsamy in an
unmarked white bakkie at the gate. Sergeant Moonsamy said that
he
was there to collect the money owed to the second defendant. She and
the plaintiff refused to pay. Sergeant Moonsamy told
them that
Inspector Ngwenya had instructed them to arrest the plaintiff. Then
Constable Thaver and Sergeant Moonsamy jumped over
the gate and
caught the plaintiff by his vest and hit him with an open hand on his
head and his back. The plaintiff was then arrested
and handcuffed.
Mrs Gopaul tried to intervene but Constable Thaver slapped her on her
face and pushed her against the house door
burglar gate. She said it
was only when a Black policeman intervened that Constable Thaver and
Sergeant Moonsamy stopped assaulting
them. The plaintiff was then
put into the back of the open bakkie whilst still handcuffed. One
hand was handcuffed to the metal
bar behind the cab of the bakkie.
[55] Mrs Gopaul further testified that on 11 February 2004 the second
defendant was not present. The three officers who were present
were
Constable Thaver, Sergeant Moonsamy and a black officer, his name was
unknown to her. They drove away with the plaintiff
and Mrs Gopaul
said she was very worried about the plaintiff as she did not know
where they were taking him to. Later on the same
day at about 12h00
she received a call from Constable Thaver who told her that the
plaintiff was being taken to KwaMashu police
station where his “
ass
would be screwed
” and that while he was detained there they
(the police) would come and rape her. She said that Constable Thaver
identified
himself over the phone, otherwise she would not have
recognised his voice.
[56] At about 13h00 on the same day (11 February 2004) the plaintiff
telephoned her and told her that he was at Verulam police
station and
that Inspector Ngwenya was the investigating officer in the matter.
The plaintiff said he was not “okay”
and that she should
come to Verulam police station and also get a lawyer immediately
because he had been charged with theft. The
plaintiff also warned
her that Captain Naidoo had said he was going to rape her. She
understood it to mean that if anyone came
to the house she should not
entertain them. She immediately phoned Inspector Ngwenya at about
13h30. She said he was very rude
and did not assist her at all.
[57] She said that when she and her two daughters visited the
plaintiff in the police cells at about 15h30 on 11 February 2004
the
plaintiff looked very worried and traumatised. The plaintiff was
being held in filthy conditions and she had brought him clean
clothes
to change into. However, the plaintiff told her that he was not
going to change as the clean clothes would get dirty from
the filthy
and smelly conditions.
[58] Mrs Gopaul said that she spoke to police certain officers who
advised her to speak to Superintendent Reuben Govender, who
was in
charge at Verulam police station. However, he was not present, and
so she waited for him. Whilst waiting, she spoke to
Inspector
Ngwenya again. He was still of no assistance. He said she should
pay R3 000 which was stolen by the plaintiff
and he would then
release the plaintiff. Superintendent Reuben Govender did not return
and, as it was then late, she returned
home at Amanzimtoti.
[59] She returned to Verulam police station the next day at 08h00.
She met Superintendent Govender and explained to him the entire

situation and produced all the paper work. Superintendent Govender
immediately pointed out that this was a civil matter and not
theft.
He issued an instruction for the plaintiff to be brought out of the
cells and a release document was completed. Inspector
Rajah prepared
the release document and took it to a Captain Govindin who, however,
refused to sign it, stating that his son-in-law
(referring to the
second defendant) wanted the plaintiff to pay the money first and
only then would the plaintiff be released.
[60] Mrs Gopaul said that she told Captain Govindin that there was no
money stolen from the second defendant and explained how
the dispute
arose. Then Captain Govindin exclaimed: “
Oh God, what has
my son-in-law done?
”. Superintendent Govender instructed
Captain Govindin to sign the release document because this was a
civil matter. This
was done and the plaintiff was released.
[61] Under cross-examination, it was put to Mrs Gopaul that her
employees started work on 8 September 2003 and worked for a total
of
five days during which time she was paid R5 000 by the second
defendant. She said that they started work on 5 September
and
finished on 12 September. However, she confirmed that she was paid
R5000 by the second defendant.
[62] Mrs Gopaul reiterated that the second defendant was to pay
R3 000 direct to the supplier for the purchase of tar. She

confirmed that R3 610 was owing by the second defendant as at 12
September 2003. However, once the second defendant had paid
the
R3 000 for the tar, the balance would have been R610. It was
put to her that she did not proceed with the work because
only R610
was owed to her and it was not profitable for her to travel all the
way for that amount. This she denied, saying that
it would only have
taken one day to do the remaining part of the job.
[63] Concerning the events of 11 February 2004 at her home, she said
she did not know why the policemen jumped over the gate as
she had
told them she was going to fetch the key. She further confirmed that
she received a phone call from Constable Thaver on
11 February 2004
at approximately 12h00. At that time the plaintiff had already been
arrested and taken away.
[64] Mrs Gopaul further stated that she took copies of all the
documents and receipts pertaining to the second defendant’s

transaction to the police on 12 February 2004 in order to prove that
the money received from second defendant was used in fulfilment
of
the contract and it was not stolen.
[65] That concluded the case for the plaintiff
.
[66] The first witness for the defence was Leslie Govender, the
second defendant. He confirmed that he resided at 14 Tansing Way,

Verulam. He was currently a warrant officer in the SAPS stationed at
Phoenix. During 2003 and 2004 he was attached to the Area
Crime
Combat Unit based in Marianhill. He had been in the SAPS for 23
years.
[67] He knew the plaintiff as he had done work on the driveway at his
residence. He contacted the plaintiff on 3 September 2003
as he had
purchased a new property and was doing renovations. He saw an advert
in the Daily News for driveway construction and
he phoned and spoke
to the plaintiff from Ace Driveways saying that he wanted his
driveway tarred urgently as he needed to move
into the property as
his wife had just given birth to their second son. The plaintiff
said that he would go to the second defendant’s
place the
following day 4 September 2003, a Thursday. He said he did not speak
to the plaintiff’s wife.
[68] On 4 September 2003 the plaintiff arrived at his house and he
informed the plaintiff that he wanted his driveway tarred.
The
plaintiff gave two verbal quotations, one for the actual driveway at
R6520 and the second for a little piece of yard on the
side of the
driveway for R2 090. He was happy with the amounts and agreed
on the price and he gave the plaintiff R500 deposit.
The total
contract price was R8 610.
[69] The second defendant further stated that the plaintiff told him
he would start the job on the following day (Friday the 5
th
September) and it would be completed in five days. However, the work
was not started on 5 September 2003 as it was drizzling and
would
then start on Monday the 8
th.
[70] The second defendant confirmed that work commenced on 8
September 2003 which was the removal of paving bricks on the
driveway.
On that day the second defendant paid R2 500 which
the plaintiff had requested. On 9 September 2003 the material
arrived,
a truckload of stones which were put on the driveway and
levelled out.
[71] On 10 September 2003 the plaintiff asked the second defendant
for R2 000 because he needed to buy kerbs. The plaintiff
said a
single kerb cost R20 and he needed 100 kerbs. That would amount to
R2 000. He said he would pay the plaintiff the
following
morning (11 September 2003) which he did. On 11 September 2003 after
paying the plaintiff he was issued with a receipt
for R2 000.
As he had then paid a total sum of R2 000, it meant the balance
owing was then R3 610. Most of the
time when he dealt with the
plaintiff on site, the plaintiff’s wife was seated in their
bakkie and the second defendant did
not speak to her.
[72] In the afternoon of 11 September 2003 the plaintiff came to the
property with kerb stones. He said he would lay them the
following
day, Friday 12 September 2003. The second defendant said that there
were 50 kerb stones and not 100. On 12 September
2003 when the
plaintiff returned, he informed his workers to lay kerbs which did
not cover the entire area. The plaintiff then
informed the second
defendant that he would bring the balance of the kerb stones on the
following Monday the 15
th,
when he would also do the
tarring.
[73] On Monday, 15 September 2003, the plaintiff did not come to the
site and he did not phone. The second defendant tried to
phone the
plaintiff but without success. Eventually he managed to contact the
plaintiff on his cellphone on Tuesday, 16 September
2003, at about
12h00. He asked the plaintiff why he had not come. The plaintiff
told him that he was busy on another job. The
plaintiff also said
because it rained over the weekend and the ground was soft he could
not come. The second defendant said that
at no stage did he talk to
the plaintiff’s wife.
[74] He said he told the plaintiff that the ground was dry and they
should come and continue with the job. The plaintiff then
informed
him that he was not happy doing the second defendant’s job
because the second defendant was always on site questioning
him about
the job and his family also regularly came to check on the work and
the plaintiff did not like that. He said he had
informed the
plaintiff that he was getting help from his family with painting and
cleaning the property and that, in any event,
he had the right to
check on the work as he was paying for it.
[75] The second defendant said that he checked the soil and phoned
the plaintiff and told him that the ground was dry and suggested
that
on the following day Wednesday (17 September 2003) the plaintiff
could come himself and check the ground. The plaintiff said
he would
come only on Thursday. The second defendant was not happy with that.
He denied the allegation that he had made threats
to the plaintiff.
He was terribly angry but he kept his composure because he wanted his
job completed. He said the outstanding
work included the kerbs to be
laid, weed poisoning, bonding liquid, tar laying and the clean-up of
the site.
[76] He further testified that when the plaintiff previously informed
him that he was busy on another job he had felt that the
plaintiff
did not have enough money to complete the work. He said the
plaintiff had then informed him that he should take down
his (the
plaintiff’s) bank account number and deposit the balance of
R3 610 into the account, whereafter he would complete
the job.
The second defendant said that he told the plaintiff that he would
not pay the money into the bank account without the
work being
completed. The plaintiff then suggested that he should get other
quotes to see what his job cost. The second defendant
said he was
very angry and realised that he was going to swear at the plaintiff
over the phone, so he hung up.
[77] The second defendant said he realised that he was being taken
for a ride and would get no joy from the plaintiff. He said
he then
contacted a Mr Richards of Tri-Star construction firm through a
mutual friend. He met Mr Richards on 18 September 2003.
On that day
Mr Richards informed him that no weed poisoning or bonding liquid had
been put on the driveway. He then asked Mr
Richards how much money
would have been spent on the job thus far, to which Mr Richards
replied not more than R2 000. Mr
Richards said that he would
need to get more kerb stones to complete the driveway and each kerb
stone cost R4.50. The second defendant
informed Mr Richards that the
work was urgent because he could not move into the house with the
driveway construction incomplete.
[78] Mr Richards informed him that it would cost R5 000 to
complete the job. He said he would come the following morning
and by
after lunch it would be completed. The second defendant accepted
this and he was told to pay R5 000. He told Mr Richards
about
the plaintiff. Mr Richards asked him for the plaintiff’s
contact number and Mr Richards phoned the plaintiff in his
presence.
Mr Richards asked the plaintiff why he had not completed the job and
allowed the second defendant to listen to the conversation.
The
plaintiff told Mr Richards that he was busy on another job and that
he suspected that the second defendant did not have the
money to pay
for the job.
[79] The second defendant then arranged with Mr Richards to come the
following day to complete the job. Indeed on Friday (19 September)

Mr Richards and his staff came and completed the job. At
approximately 14h00 he was using his driveway.
[80] During the conversation between Mr Richards and the plaintiff,
the plaintiff told Mr Richards that he had made over R3 000

profit from the second defendant, and that Mr Richards should not
waste his time completing the job as he would not make any money
from
it.
[81] On Friday (19 September 2003) the second defendant proceeded to
Verulam police station and laid a criminal complaint against
the
plaintiff of theft by false pretences under reference CAS243/9/03.
[82] The second defendant further testified that the investigating
officer Inspector Ngwenya told him that he had contacted the

plaintiff telephonically and that the plaintiff had become abusive to
him on the phone and did not want to go and see Inspector
Ngwenya at
the Verulam police station when Inspector Ngwenya had requested him
to do so. Inspector Ngwenya further told him that
as he (the second
defendant) was the only person who could recognise the plaintiff, he
should then arrest him wherever he saw the
plaintiff, because the
plaintiff did not wish to co-operate with Inspector Ngwenya. The
second defendant said he did not see anything
wrong or undesirable in
acceding to Inspector Ngwenya’s request.
[83] The second defendant said that, subsequently, on 10 February
2004 whilst on duty driving Inyala truck, travelling on the N2

southbound freeway he saw the plaintiff travelling in his white
bakkie. As he got closer he hooted for the plaintiff to pull over
to
the side of the road. The plaintiff pulled off the road and the
second defendant pulled off behind the bakkie. The plaintiff
came
out to the left hand side of the Inyala as the back sliding door was
opened. The second defendant said he jumped out and
approached the
plaintiff and asked him if he was aware that there was a case of
theft by false pretences opened against him and
that Inspector
Ngwenya was looking for him and further that his arrest was imminent.
The plaintiff replied in the negative. The
second defendant told
the plaintiff that Inspector Ngwenya said he (the second defendant)
should arrest him on sight. The plaintiff
requested him to withdraw
the charge and that he would pay back the money he owed to the second
defendant. The second defendant
said the plaintiff owed him R3 000
following Mr Richards’ quotation. He assumed that Mr Richards’
calculation
was correct. However, he had not confirmed the kerb
stone price at the hardware shops.
[84] The second defendant said that on 10 February 2004 the
plaintiff’s wife was seated in the bakkie and she did not
alight
from the vehicle. He confirmed that there were six members in
the Inyala, namely Captain Naidoo, Inspectors Joseph, Perumal, GS

Naidoo and D Naidoo and Constable Thaver. They were all members of
the Area Crime Combat Unit, formerly known as the Riot Unit.
The new
name was the Public Order Policing (POP) Unit. He said none of the
members alighted from the Inyala, but only he did.
The plaintiff
sought to make arrangements to pay him his money back. The plaintiff
asked him to come to the plaintiff’s
residence that afternoon
to get the money. The plaintiff furnished the second defendant with
his physical address.
[85] He said that during same afternoon at about 16h00 he phoned the
plaintiff on his landline phone, for the money. However,
the
plaintiff told him that he did not owe him any money and he should do
whatever he wanted about it. He realised that the plaintiff
had lied
once again and he informed his Captain that he was going to the
Verulam police station the next morning.
[86] The following morning (11 February 2004) he went to the Verulam
police station and spoke to Inspector Ngwenya and told him
that he
had the plaintiff’s address. It was then that Inspector
Ngwenya asked him if he could assist with the arrest of
the
plaintiff, as Inspector Ngwenya’s motor vehicle was in the
garage for repairs. The second defendant said he did not
know why
Inspector Ngwenya could not get assistance from his colleagues at
Verulam police station for the arrest of the plaintiff,
instead of
asking him (the second defendant) who was personally involved in the
complaint. In any event, he informed Captain Naidoo
about Inspector
Ngwenya’s request and Captain Naidoo spoke to Inspector
Ngwenya. The second defendant confirmed that he
was accompanied by
Captain Naidoo, Inspectors GS Naidoo, Joseph, Perumal, Sergeants
Moonsamy and Nxumalo and Constable Thaver when
he went to Verulam
police station.
[87] Captain Naidoo told Inspector Ngwenya that as he (the second
defendant), was the complainant, he should not get involved so

Inspector Ngwenya asked Captain Naidoo if he could assist with the
arrest. Captain Naidoo agreed and they then proceeded to
Amanzimtoti.
At Amanzimtoti police station Captain Naidoo informed
the commander that the reason for their presence at Amanzimtoti was
the
arrest of a suspect. Captain Naidoo then proceeded with two of
the members, namely Sergeant Moonsamy and Sergeant Nxumalo to the

plaintiff’s address. Approximately 10 minutes later Captain
Naidoo arrived with the plaintiff at the back of the open police

bakkie. The plaintiff was handcuffed. The second defendant said
that Captain Naidoo asked him if the plaintiff was the wanted
suspect
and he confirmed.
[88] The next time the second defendant saw the plaintiff was
when they were subsequently called to Ridge Road police station in

relation to an assault charge opened by the plaintiff against him and
the other members. The detective who was handling the matter
later
told them that the plaintiff was withdrawing the assault charge
against them. He stressed that he did not at any time assault
the
plaintiff and no members of his unit did so in his presence. The
plaintiff knew that he was a policeman as he was most of
the time in
full police uniform and using a marked police vehicle.
[89] Under cross-examination he was asked what made him say that the
plaintiff was taking him for a ride, he said it was because
the
plaintiff had said that on Monday (15 September 2003) he would come
to the site but he did not come and did not phone to explain
why. He
further stated that the plaintiff lived in Amanzimtoti and would not
have known what the weather was like in Verulam.
He denied having
threatened the plaintiff and having called his wife a “
fuckin’
bitch
”.
[90] He agreed that Mr Richards was the plaintiff’s competitor.
On this basis, he conceded that like all other competitors
Mr
Richards would put himself on a higher pedestal. He further
reiterated that Mr Richards completed his driveway in less than
a
day. However, he disagreed with the suggestion that this confirmed
the plaintiff’s allegation that he had done 80% of
the work.
He said Mr Richards had come with a huge workforce and looked
professional. He further alleged that the plaintiff
had told him
that kerb stones cost R20 each. He denied that the plaintiff had
given him a globular figure, and not for costs of
individual
material.
[91] He said he firmly believed that there was a criminal offence
committed, and further in his experience this matter was
crime-related.
He conceded that he had only scant knowledge of civil
cases.
[92] It was put to the second defendant that he abused his position
and influence in creating a criminal offence where none existed,

which he denied. It was further put to him that had any member of
the public gone to the SAPS with the same complaint they would
have
been shown the door. He disagreed with this proposition.
[93] He reiterated that initially he did not have the plaintiff’s
physical address and he could not remember whether the
address
appeared on the plaintiff’s business advert. However he
conceded that he did have the plaintiff’s cell number.
He
further conceded that it would, in any event, have been easy to find
the plaintiff’s address from the plaintiff’s
landline
number and that if he was investigating the case, he would have done
so.
[94] The second defendant confirmed that on 11 February 2004 the
police bakkie which belonged to the POP Unit from Marianhill was
used
to arrest the plaintiff. He said that was done under their commander
Captain Naidoo’s orders. He also used to drive
that vehicle
himself. He said that the bakkie was used because that is what they
had at the time. He disagreed with the suggestion
that this method
of arrest was intended to inflict maximum humiliation on the
plaintiff. He disputed that it was done through
malice.
[95] He
confirmed that Sergeant Moonsamy was not present on the N2 freeway on
10 February 2004 and further stated that Thaver was
not present when
the plaintiff was arrested at his home in Amanzimtoti on 11 February
2004.
[96] The next witness for the defendants was Sergeant Jayandren
Thaver (since promoted from Constable). He said he saw the plaintiff

for the first time on 10 February 2004 when he was travelling in the
Inyala truck together with the second defendant, Inspectors
GS
Naidoo, D Naidoo and Joseph. The second defendant was driving the
Inyala truck and they were travelling on the N2 southbound
freeway
just passing the Reservoir Hills off-ramp when the second defendant
hooted and activated the siren trying to pull off a
while bakkie
(driven by the plaintiff) on their left hand side. The Inyala’s
door was open. Other members signalled to
the plaintiff to pull
over. He said he also signalled to the bakkie to stop. The second
defendant had said that was the man his
case was opened against.
Thaver said he knew that the case was about theft by false pretences
and, as the second defendant’s
colleagues, they all knew that
the second defendant had a problem with the construction of his
driveway.
[97] Sergeant Thaver said that the bakkie stopped about 5 metres in
front of them. The plaintiff alighted from the bakkie and
came
towards them, and the second defendant jumped out and went to the
plaintiff. He and his colleagues did not say anything to
the
plaintiff. It was the second defendant who approached the plaintiff.
Thaver said he was seated in the Inyala just a metre
from where the
plaintiff and the second defendant were talking outside the door.
The second defendant asked the plaintiff if he
was aware of the case
of theft by false pretences, and that the investigating officer was
trying to contact him. The plaintiff
suggested that there was no
need for the case because he was prepared to pay the money that he
owed to the second defendant. The
plaintiff asked the second
defendant to phone him that afternoon to make arrangements for
payment of the money. The plaintiff
gave his name and address and
home telephone number to the second defendant. He said there was
someone seated in the white bakkie,
the plaintiff’s passenger,
but he did not know who it was. That passenger did not get out of
the vehicle.
[98] Sergeant Thaver denied having gone to the plaintiff’s
bakkie to tell the plaintiff to get out of the vehicle and he
did not
demand him to bring his cell phone and leave the bakkie keys behind.
He denied that the plaintiff was assaulted by anyone.
He further
stated that the plaintiff was not hit by any policeman. Once the
plaintiff had promised to pay that afternoon, they
parted with the
plaintiff.
[99] Sergeant Thaver said that he was not present when the plaintiff
was arrested. He said he remained at Amanzimtoti police station
at
11h30 with the second defendant and Inspector GS Naidoo. It was
Captain Naidoo who went to effect the arrest together with
Sergeants
Moonsamy and Nxumalo. He denied that he assaulted the plaintiff and
his wife on their premises. He did see the plaintiff
when he was
brought to Amanzimtoti police station under arrest. The plaintiff
had to be identified by the second defendant. Sergeant
Thaver said he
went to the Inyala and did not know where the second defendant was
then. After about five minutes Captain Naidoo
brought the plaintiff,
who was not in handcuffs, to the Inyala.
[100] He said that at no stage did he verbally abuse the plaintiff or
harass him. They proceeded from Amanzimtoti police station
to
Verulam police station. Present in the Inyala were Captain Naidoo,
Inspector GS Naidoo, Sergeant Moonsamy, Sergeant Nxumalo
and himself.
The second defendant did not travel along with them, but he used the
police bakkie.
[101] He further stated that it was not true that they phoned the
plaintiff’s home and told his wife that they were going
to
screw the plaintiff’s ass. At Verulam he remained in the
vehicle whilst Captain Naidoo took the plaintiff to the commanding

officer. He said that he did not see the plaintiff after 11 February
2004.
[102] It was put to Sergeant Thaver that the plaintiff’s wife
testified that she alighted from the bakkie and went to the
Inyala
and that is when she identified him by his name badge. He retorted
by saying that the plaintiff could have told her of
his name. It was
put to him that she further recognised him on the following day at
her house. This Sergeant Thaver denied, insisting
that he never went
to her house. He said he did not know why the plaintiff and his wife
picked on him as he did not know them
and had no problem with them.
He said they could be fabricating their story to make their case
stronger.
[103] It was put to Sergeant Thaver that one of the admitted facts in
terms of the pre-trial minute which was signed by attorneys

representing both parties was the following:
“
It is agreed that the
plaintiff was arrested by Constable J Thaver, Captain L Naidoo and
Sergeant R Moonsamy.”
[104] Sergeant Thaver denied that he was present when the plaintiff
was arrested. He said he did not know how that was agreed,
because
during their consultation it was made clear that Captain Naidoo,
Sergeant Moonsamy and Sergeant Nxumalo had arrested the
plaintiff.
It was further put to Sergeant Thaver that both the plaintiff and his
wife recognised him on 11 February 2004 from
the previous day. He
agreed that it was a somewhat strange coincidence that the
plaintiff’s allegation that he was present
at the arrest of the
plaintiff is corroborated by the “admitted facts” at the
pre-trial conference. It was further
suggested to him that he had
played a more active role by assaulting both the plaintiff and his
wife, and having handcuffed the
plaintiff. Sergeant Thaver said that
the plaintiff and his wife were mistaken.
[105] Sergeant Thaver said that he did not see whether the plaintiff
was handcuffed whilst seated at the back of the bakkie. It
was
further put to him that the plaintiff was handcuffed to a metal bar
behind the rear window and Sergeant Thaver would have seen
that. He
said en route from Amanzimtoti to Verulam they did not speak to the
plaintiff as Captain Naidoo had instructed them not
to do so.
[106] Sergeant Thaver also denied having assaulted the plaintiff at
the open parking at Verulam police station, saying that they
could
not do such a thing. He also disputed having tightened the handcuffs
twice on the journey in the Inyala to add to the plaintiff’s

discomfort. He said the plaintiff was not handcuffed whilst in the
Inyala.
[107] In his testimony, Captain Logan Naidoo acknowledged that during
2003 and 2004 the second defendant was under his command.
He said he
only met the plaintiff on the date of his arrest. He had telephoned
the plaintiff on the day before his arrest as
he wanted to know where
they could meet so that the plaintiff would hand over money he had
promised to pay to the second defendant
back for a job not completed.
Captain Naidoo said that the plaintiff swore at him over the phone
and he then informed the second
defendant to hand the matter over to
the investigating officer in the case.
[108] Captain Naidoo said that he was not present on the N2 freeway
on 10 February 2004 when the plaintiff was stopped. However,
he was
one of the arresting officers who went to the plaintiff’s house
to effect the arrest. Prior to the arrest they went
to Verulam
police station and met Inspector Ngwenya to give him the plaintiff’s
address because the case had been opened
against the plaintiff in
Verulam. The investigating officer said he had no transport and
asked if he (Captain Naidoo) could assist
him in effecting the
plaintiff’s arrest. Captain Naidoo then proceeded to
Amanzimtoti police station to make an occurrence
book entry to the
effect that they were in the area. They were travelling in an open
bakkie. They proceeded to the plaintiff’s
home. It was
himself, Sergeant Nxumalo and Sergeant Moonsamy.
[109] Captain Naidoo said that the arrest was urgent as the case had
been opened in September 2003 and it was then already February
2004.
The second defendant had told Inspector Ngwenya that the plaintiff
had used delaying tactics and had refused to come to
the police
station.
[110] Captain Naidoo said that the second defendant had been
travelling with them all along but when they went to arrest the
plaintiff,
the second defendant had remained at Amanzimtoti police
station because he was personally involved in the case. However, he
understood
in retrospect that they could have taken him there for
identification purposes.
[111] He said the plaintiff and his wife came outside the house when
the police hooted. Sergeant Moonsamy told the plaintiff
that he was
under arrest for theft by false pretences in respect of a case opened
in Verulam. Without saying anything, the plaintiff
walked back
towards the house. Captain Naidoo could not remember what the
plaintiff was wearing. When the plaintiff started walking
back to
the house, Sergeant Moonsamy jumped over the gate and grabbed the
plaintiff on his front. There was a struggle between
them as if the
plaintiff was trying to escape. Captain Naidoo was still standing
outside the gate which was still locked. He
said he had full view of
all the events.
[112] He further testified that Sergeant Nxumalo was standing next to
him and he told Sergeant Nxumalo to assist Sergeant Moonsamy.

Sergeant Nxumalo also jumped over the gate and in the process part of
the gate broke. They overpowered the plaintiff and brought
him to
the bakkie. At that stage the plaintiff was not trying to get away.
They placed him in the back of the bakkie with Sergeant
Moonsamy.
Captain Naidoo said that he was driving and Sergeant Nxumalo sitting
next to him. He said that the plaintiff did not
say anything and he
was not handcuffed. Captain Naidoo further stated that no-one had
assaulted the plaintiff. He further said
that the plaintiff’s
wife was also not assaulted.
[113] Captain Naidoo further stated that the plaintiff was taken to
Amanzimtoti police station because they could not transport
him to
Verulam in the open bakkie. They had the Inyala truck at Amanzimtoti
police station and he parked the open bakkie at the
back of the
police station.
[114] At Amanzimtoti police station the second defendant confirmed
the identity of the plaintiff. No other officers at Amanzimtoti

police station had contact with the plaintiff. The plaintiff walked
from the open bakkie to the Inyala and he was still not handcuffed.

He denied that the plaintiff had been handcuffed to the metal bar at
the back of the open bakkie.
[115] Captain Naidoo said that the second defendant used the open
bakkie, and he took the plaintiff to Verulam in the Inyala, together

with Sergeant Moonsamy, Sergeant Nxumalo and Sergeant Thaver. He
said that Sergeant Thaver had remained at the Amanzimtoti police

station with the second defendant when he, Sergeant Nxumalo and
Sergeant Moonsamy went to arrest the plaintiff. He further stated

that Inspector GS Naidoo drove the Inyala from Amanzimtoti to
Verulam. Nothing happened to the plaintiff en route to Verulam.
[116] Captain Naidoo said that it was not true that whilst at Verulam
he told the plaintiff that he would go to his house and rape
his
wife. He also denied that he and Sergeant Thaver slapped the
plaintiff several times at Verulam.
[117] Under cross-examination, Captain Naidoo said that he did not
verify whether there was a warrant of arrest against the plaintiff

and did not see the need to find out about it, because it was a
relatively minor offence. He reiterated that the investigating

officer had asked them to assist with the arrest and there was no
warrant of arrest. He agreed that it was obvious that if they
had
not gone to Verulam, Inspector Ngwenya would not have made the
request. He said that there was no pressure put on Inspector
Ngwenya
to arrest the plaintiff. He said that Inspector Ngwenya did not have
the plaintiff’s residential address at the
time. They had gone
there to furnish Inspector Ngwenya with the address. He said that he
knew about that because the second defendant
had informed him.
[118] Captain Naidoo further agreed that it was not suitable to
transport plaintiff from Amanzimtoti to Verulam in the open bakkie
as
it is a long distance. However, he saw no problem for a short
distance from the plaintiff’s home to Amanzimtoti police

station. Captain Naidoo was asked why they did not use the Inyala.
He said it is heavy armoured and could attract attention moving
in a
residential area. He agreed that the police bakkie was marked and it
would have attracted attention from the neighbours but
the Inyala
would have attracted more attention. It was put to him that his
interest was to teach the plaintiff a lesson, which
he disputed,
saying it was only to arrest him. Captain Naidoo further stated that
there was no other vehicle available. When
asked why the arrest of
the plaintiff was so urgent, he said they had arrested people and put
them in the back of the bakkie, but
he conceded that it was not under
similar circumstances.
[119] It was put to Captain Naidoo that the plaintiff was intimidated
and abused by all the police officers in the Inyala from
Amanzimtoti
to Verulam, to which he replied that it was not true and the
plaintiff could have opened a case against them but he
did not. It
was put to him that the plaintiff did open a case at the Ridge Road
police station. He replied that he was never
called there.
[120] Captain Naidoo denied that whilst inside the Inyala he
instructed another officer to tighten the handcuffs on the plaintiff

to cause him more pain. He further denied that Sergeant Thaver had
phoned the plaintiff’s wife and told her that the plaintiff
was
being taken to KwaMashu police station and that his “
ass
would be screwed
”.
[121] Captain Naidoo said that he had seen the plaintiff’s
house in Amanzimtoti and did not doubt it was his house. He was

further asked why the plaintiff was not at least charged and warned.
He agreed that this type of case was not one which warranted
an
arrest. He further conceded that had they not taken the initiative,
all of this would not have occurred. He was also asked
whether he
did it to help his colleague, and he said he did not. He said if
Inspector Ngwenya had not requested this they would
not have gone to
arrest the plaintiff. He admitted that taking the circumstances of
this case into account, the detention of the
plaintiff was not
warranted.
[122] The next witness for the defendant was Warrant Officer Njabulo
Felix Nxumalo (since promoted from sergeant) who said that
he only
saw the plaintiff when they went to arrest him at his home in
Amanzimtoti on 11 February 2004. On 10 February 2004 he
was not
working with his colleagues and was not present when the police
officers encountered the plaintiff on the N2 freeway.
[123] On 11 February 2004 he, Captain Naidoo, the second defendant,
Sergeant Moonsamy, Sergeant Thaver and Inspector Perumal reported
for
duty. At about 10h00 Captain Naidoo informed them that he and his
colleagues had to effect an arrest in Amanzimtoti. This
did not
include the second defendant – he was not there. W/O Nxumalo
said that he never went to Verulam police station.
Captain Naidoo
met them at Amanzimtoti police station. W/O Nxumalo said that he was
one of the arresting officers. He could
not remember where he was
when he got the order from Captain Naidoo. The officers who were to
effect the arrest were Captain Naidoo,
Sergeant Moonsamy and himself.
They were travelling in an open Mazda bakkie. The other colleagues
remained at Amanzimtoti police
station. They were Inspector GS
Naidoo, Inspector Perumal and Sergeant Thaver. W/O Nxumalo said he
could not remember where the
second defendant was, but he was not at
Amanzimtoti police station.
[124] W/O Nxumalo said that at the plaintiff’s house they all
stood at the gate and Moonsamy shouted for someone from inside
the
house. The gate was locked. The plaintiff came out of the house and
Sergeant Moonsamy told him who he was and that they were
looking for
Ashley and the plaintiff confirmed that he was Ashley. Sergeant
Moonsamy informed the plaintiff why they were there
and that a case
of theft by false pretences had been opened in Verulam. The
plaintiff started going back into the house.
[125] He further told the court that when the plaintiff walked back
towards the house “refusing to be arrested”, Sergeant

Moonsamy jumped over the gate and he saw Sergeant Moonsamy and the
plaintiff struggling as Sergeant Moonsamy was trying to effect
an
arrest on the plaintiff.
[126] He said that Captain Naidoo requested him to assist Sergeant
Moonsamy and he saw the plaintiff going for Sergeant Moonsamy’s

firearm. W/O Nxumalo said that he then pushed the fence and went to
assist Sergeant Moonsamy. W/O Nxumalo said that the gun was
in a
waist holster on Sergeant Moonsamy’s right hip region. When
the plaintiff saw him, the plaintiff calmed down. They
prevented the
plaintiff from going into the house. W/O Nxumalo denied that the
police assaulted the plaintiff.
[127] He further said the plaintiff’s wife was standing next to
the kitchen door, the same door from which the plaintiff
had emerged.
After arresting the plaintiff they walked through the gate which he
thought was opened by the plaintiff. They entered
the open bakkie
and the plaintiff was placed at the back with Sergeant Moonsamy. The
plaintiff was not handcuffed at that time.
W/O Nxumalo said that he
could not remember whether the plaintiff was handcuffed at any other
time.
[128] W/O Nxumalo said that Sergeant Thaver was not one of the
arresting officers. It was put to him that the plaintiff’s

version was that Sergeant Thaver had assaulted the plaintiff and he
(W/O Nxumalo) had stopped Sergeant Thaver. W/O Nxumalo reiterated

that Sergeant Thaver was not there. W/O Nxumalo further said that it
was untrue that he had said to the plaintiff that he did
not like
what was happening.
[129] W/O Nxumalo confirmed that he travelled in the Inyala to
Verulam police station and the plaintiff was not seated next to
him
but in the seat behind the driver. He said it was not true that
Sergeant Thaver and Captain Naidoo assaulted the plaintiff
at Verulam
police station and that he protected the plaintiff.
[130] W/O Nxumalo said that this incident happened in 2004 and it is
possible that he might slip up here and there. He was asked
whether
he saw the plaintiff trying to grab Sergeant Moonsamy’s firearm
and he said he did see that. Captain Naidoo saw
it too and told him
(W/O Nxumalo) to go and assist Sergeant Moonsamy. He said that he
could not explain why Captain Naidoo had
not mentioned seeing the
plaintiff reaching for Sergeant Moonsamy’s firearm. He denied
trying to make the plaintiff look
like a dangerous person. He
agreed, however, that this aspect was very important.
[131] W/O Nxumalo was asked to recall that in the Inyala the
plaintiff was handcuffed and tied to the seat, but he disputed that.

He also disputed that the plaintiff had been handcuffed to the metal
bar in the bakkie. He said it was illegal to do that. W/O
Nxumalo
said that if the plaintiff was handcuffed to the bakkie he would have
seen that. However he could not deny that the plaintiff
was
handcuffed and seated at the back of the bakkie. He further said
that he never saw the plaintiff being intimidated and sworn
at on the
journey to Verulam. He could not remember Captain Naidoo saying that
the handcuffs should be tightened to make the plaintiff
feel more
pain.
[132] Captain Sipho Eric Ngwenya (since promoted from inspector) was
attached to the Verulam SAPS Detective Branch. He confirmed
said
that the second defendant was the complainant in a case he was
investigating and the plaintiff was the suspect. The charge
was
theft by false pretences involving the sum of R5 000 cash, case
reference CAS243/9/03. He confirmed that the case was
discussed with
the second defendant who promised to get the physical address of the
plaintiff in Amanzimtoti. The case was discussed
with the second
defendant and the second defendant was requested to ask other members
of the POP Unit to arrest the plaintiff as
soon as his address was
ascertained.
[133] He further stated that he had asked the second defendant to
arrest the plaintiff because the second defendant was himself
a
police officer. When asked why he had asked the second defendant to
arrest the plaintiff, he said that the address of the plaintiff
was
not known at that time. He said in this case he asked the second
defendant to ask the POP members to arrest the suspect, not
the
second defendant himself, although he knew that the second defendant
was a member of the POP Unit.
[134] Captain Ngwenya said that on 11 February 2004 he was on duty
when the second defendant told him that he had found the address
of
the plaintiff. Captain Ngwenya then told the second defendant that
he did not have transport, but asked Captain Naidoo of the
POP Unit
to arrest the plaintiff. Captain Ngwenya said that the second
defendant and Sergeant Thaver had been in his office.
He did not
know who would be the arresting officer, he only advised them that
the second defendant should not be the arresting
officer. Captain
Ngwenya said that he did not apply for a warrant of arrest as it
would have taken time. When asked what was
urgent about this case,
he said he was complying with his instructions from his superiors.
However, he conceded that he did not
have such instructions from his
superiors in this particular case. He further conceded that there
was nothing urgent about the
case.
[135] He said that generally when dockets are taken to court it takes
6-9 months for dockets to be returned. He further stated
that this
was the only docket requiring a warrant of arrest and said that the
prosecutors simply told them to “leave it here”.
He
pointed out that theft by false pretences was a schedule 1 offence.
He further said that reasonable suspicion existed. When
the
plaintiff was arrested it was the first time he saw the plaintiff
when he was brought to his office by Sergeant Moonsamy and
Captain
Naidoo. He said he did not notice any injuries on the plaintiff. He
said he wanted the plaintiff detained and requested
Sergeant Moonsamy
and Captain Naidoo to take the plaintiff to the commanding officer to
be detained.
[136] Captain Ngwenya said that another statement was taken from the
plaintiff on 12 February 2004 and he was then released. The
reason
was that the officers who took the statement, warrant officers Rajah
and Reddy, realised that this was a civil matter.
Captain Ngwenya
said that he did not know who ordered the plaintiff’s release,
and did not know where he himself was at the
time. It was put to
Captain Ngwenya that it was pathetic that he had been the
investigating officer and he had no involvement.
It was further put
to him that everything should have been attended to on the same day
of the arrest of the plaintiff.
[137] Captain Ngwenya said that he phoned the plaintiff (on the
pretext of getting a quote for a driveway) but what he really wanted

was the plaintiff’s address so that he could take his statement
and not to arrest him. When Captain Ngwenya was asked what
had
changed his mind about suddenly arresting him. He could not answer
the question. It was put to him that the entry on page
37 of exhibit
“C” clearly stated “
Suspect to be arrested
”,
so his intention could not have been merely to obtain a statement, he
agreed that it was so.
[138] He further conceded that it had always been his intention to
arrest the plaintiff and not merely take a statement. He further

conceded that it was his own decision as the investigating officer.
He said he did not apply for a warrant of arrest because he
had
previously taken dockets for warrants of arrest and only got them
back 1-2 months later. That is what he had referred to earlier
in
his evidence, that they only got the dockets back after a long time.
He further said that the branch commander in charge of
detectives at
the time was Lieutenant Colonel Reuben Govender, who is now at the
Phoenix cluster.
[139] It was put to Captain Ngwenya that the reason he did not apply
for the warrant of arrest in this case was that he knew it
would not
be granted due to the circumstances of this case, which he denied.
He believed that the warrant of arrest would have
been granted
because he construed this case as criminal and not civil. However,
he later conceded that it was possible that the
warrant of arrest
would not have been issued, because ultimately the public prosecutor
had declared that this matter was not criminal,
but civil.
[140] Captain Ngwenya conceded that the plaintiff spent the whole day
in the cells without him taking his statement. He confirmed
that he
was present when the plaintiff was detained in the cells although he
had not spoken to him. He said he knew a little about
the Criminal
Procedure Act. However, he knew that the plaintiff could be served
with a summons or written notice to appear, and
it could have been
done to the plaintiff in this case, without being arrested.
[141] Captain Ngwenya said that he did not engage with the plaintiff
when the plaintiff was brought to his office (after arrest)
as they
“
don’t engage with the suspect until he is put in the
registers
”. He conceded that he did not ask the plaintiff
if he wanted a lawyer because, as he put it, it was the arresting
officer
who should have done that. He was going to charge the
plaintiff and then explain his rights at that stage.
[142] Captain Ngwenya also confirmed that he asked the second
defendant for the plaintiff’s address. It was put to him that

since he had the plaintiff’s home telephone number, he could
have searched for the physical address. He said that he had
about 10
years’ service in the detective branch. It was put to him
that he could have approached Telkom for the address.
[143] Captain Ngwenya later acknowledged that at the time of this
incident he was not yet a qualified detective, in the sense that

although he had been a detective for 10 years, he had not attended
the detectives’ course. Hence, he had regarded himself
as
being not yet a qualified detective.
[144] Captain Ngwenya further agreed that this was not the type of
case where the arrest without the warrant of arrest was justified.

He conceded that this was not the type of case which warranted
detention of the suspect, namely the plaintiff.
[145] He was asked whether the second defendant had said that the
plaintiff had sworn at or insulted him. He replied that if it
was
so, he would have put it in his statement. He further said he did
not say that the plaintiff was abusive. In other words,
his evidence
was that the plaintiff had neither sworn at him nor been abusive to
him.
[146] It was put to Captain Ngwenya that the second defendant told
the court that he (Captain Ngwenya) had said the second defendant
was
the only person who would recognise the plaintiff and that the second
defendant should therefore arrest the plaintiff when
he saw him.
Captain Ngwenya disputed this, saying that it would have amounted to
the second defendant involving himself in his
own case. He further
said that even in the diary he had noted that the second defendant
should ask his colleagues to arrest the
plaintiff and not the second
defendant himself.
[147] Sergeant Ramachandran Moonsamy testified that he saw the
plaintiff for the first time on the day of his arrest on 11 February

2004. On that day he and his colleagues met with Captain Ngwenya at
his office at the Verulam police station. He informed them
of a
suspect to be arrested in a theft case in Amanzimtoti. At the time
Sergeant Moonsamy did not know that the second defendant
was the
complainant.
[148] Sergeant Moonsamy said the reason the POP was going to do the
job was because Captain Ngwenya had informed them that he had
a
shortage of motor vehicles at the police station. Sergeant Moonsamy
said he and Captain Naidoo were travelling in Captain Naidoo’s

Mazda bakkie, a marked police bakkie without a canopy. He, Captain
Naidoo and W/O Nxumalo got into the bakkie and proceeded to
the
plaintiff’s address. Upon arrival they sounded the siren
outside the plaintiff’s residence and the plaintiff came

outside to the driveway. Sergeant Moonsamy said he was the one who
pressed the siren. He did not notice whether people from the

neighbourhood came out of their houses. When the plaintiff came
outside, he (Sergeant Moonsamy) was at the gate with W/O Nxumalo.
He
said he informed the plaintiff that he was looking for Ashley against
whom a theft case had been opened. After the plaintiff
indicated
that he was Ashley, he (Sergeant Moonsamy) informed the plaintiff
that he was under arrest in respect of that case.
Sergeant Moonsamy
then asked the plaintiff to open the gate but the plaintiff refused.
The plaintiff said he was not going to
open and turned towards the
door of his house. The plaintiff did not say that he was going to
change his clothes. Sergeant Moonsamy
said he asked the plaintiff to
stop but the plaintiff, as Sergeant Moonsamy put it, “
jogged
and ran to his house
”.
[149] Sergeant Moonsamy further testified that he then jumped over
the gate and effected the arrest on the plaintiff. He said
he tried
to handcuff the plaintiff but the plaintiff resisted and tried to
reach for his (Sergeant Moonsamy’s) service pistol
in his right
hand holster. He said he managed to get the plaintiff under control
by using his arrest techniques.
[150] Sergeant Moonsamy further said that during his scuffle with the
plaintiff, W/O Nxumalo jumped or pushed the fence to come
and assist
him. The plaintiff was then handcuffed behind his back and placed in
the back of the van and taken to Amanzimtoti police
station.
[151] When asked how the plaintiff jumped onto the back of the van
whilst handcuffed behind his back, Sergeant Moonsamy said that
the
tailgate of the bakkie was pulled down and the plaintiff was assisted
to climb onto the back of the vehicle. He confirmed
that all this
happened in front of the plaintiff’s gate in broad daylight at
approximately between 12h00 and 13h00. He could
not say if there
were people around who witnessed the incident. He confirmed that
they had left the second defendant at Amanzimtoti
police station,
although the second defendant knew that they were going to arrest the
plaintiff in connection with his case.
[152] Sergeant Moonsamy further said that other than refusing to open
the gate, he could not recall what else the plaintiff had
said. He
said Sergeant Thaver had remained at the police station and did not
accompany them to the plaintiff’s house. He
further said that
the second defendant was instructed by Captain Naidoo to follow them
in the bakkie and meet them at Verulam police
station because they
did not want to have the complainant and the accused (referring to
the second defendant and the plaintiff,
respectively) in the same
vehicle. At Verulam the plaintiff was handed over to the commanding
officer, not sure who it was and
he was detained. He said he did not
see the plaintiff again until the trial at the high court.
[153] Under cross-examination, Sergeant Moonsamy said it was Captain
Naidoo and himself who entered Captain Ngwenya’s office
at
Verulam police station and that the second defendant was outside in
the Inyala. It was put to him that the second defendant
had said in
his evidence that it was himself who approached Captain Ngwenya and
the latter asked him to assist with the arrest
of the plaintiff.
Sergeant Moonsamy insisted that the second defendant was not present
in Captain Ngwenya’s office. He
said that when he and Captain
Naidoo spoke to Captain Ngwenya, the second defendant was not
present. Sergeant Moonsamy further
said that when he and Captain
Naidoo went to Captain Ngwenya, they were only going to enquire if
there were any tasks for their
attention and not necessarily about
this case.
[154] It was put to Sergeant Moonsamy that Captain Naidoo testified
and made no mention of him (Sergeant Moonsamy) being present
in
Captain Ngwenya’s office. Sergeant Moonsamy said he did not
know why. It was further put to him that the second defendant
also
did not mention his presence in Captain Ngwenya’s office.
Sergeant Moonsamy said he did not know why.
[155] Sergeant Moonsamy said that the plaintiff came to the gate and
he (Sergeant Moonsamy) asked him to open the gate. The plaintiff

refused to open and he turned around and started to run towards his
house. It was put to him that both Captain Naidoo and W/O
Nxumalo
never said that the plaintiff ran to his house. He insisted that the
plaintiff ran to the house.
[156] Sergeant Moonsamy confirmed his statement. In paragraph 5
thereof he mentioned that “
Whilst trying to handcuff the
suspect, he started to kick and punch at me
”. It was put
to him that in his evidence he never mentioned that the plaintiff
kicked and punched at him. In response,
he said that the plaintiff
punched and kicked at him but he avoided all blows. Sergeant
Moonsamy further stated that when the
plaintiff grappled with him he
tried to reach for his (Sergeant Moonsamy’s) firearm, which was
tucked in his holster.
[157] Sergeant Moonsamy further said that the plaintiff was already
handcuffed when W/O Nxumalo came on the premises. When it
was put to
him that W/O Nxumalo had said that he separated the plaintiff and
Sergeant Moonsamy as they were grappling, Sergeant
Moonsamy said that
could have happened. Indeed there would have been no need for W/O
Nxumalo to separate them if plaintiff was
already handcuffed.
[158] It was put to Sergeant Moonsamy that the plaintiff had
testified that his name had been called and he had exited the house

wearing a pair of shorts and a vest. Sergeant Moonsamy said he could
not be sure about that. He further stated that the plaintiff
did not
say he was going to the house to change. It was put to him that
Sergeant Thaver had jumped over the gate, to which he
replied that
Sergeant Thaver was not there. He stated that those present were
himself, Captain Naidoo and W/O Nxumalo. At no
time was the
plaintiff assaulted at the back of his head. It was further put to
him that when the plaintiff’s wife tried
to intervene, she too
was slapped on the face by Sergeant Thaver. Sergeant Moonsamy
disputed this.
[159] Sergeant Moonsamy further disputed that the plaintiff was
handcuffed at the rear bar of the bakkie. He said that he had

accompanied the plaintiff from Amanzimtoti to Verulam and plaintiff
was not abused during the entire journey. He said that he
could not
remember what the plaintiff was wearing. He disputed that the
plaintiff was assaulted at any stage in his presence.
[160] Sergeant Moonsamy said that when he arrested the plaintiff he
read him his constitutional rights, but he was not sure whether
he
(Sergeant Moonsamy) signed the relevant document. He further said
he read the plaintiff his constitutional rights at his house
after he
had handcuffed the plaintiff. He could not explain why he had not
mentioned this aspect both in his statement and in
his
evidence-in-chief. He said he must have forgotten to mention it. It
was put to him that he never mentioned this simply because
it did not
happen, which he disputed.
[161] Sergeant Moonsamy further stated that before he arrested the
plaintiff he explained that a case of theft was opened against
him
and then arrested the plaintiff. He further informed the plaintiff
that the charge was theft by false presences in that he
did not
complete the work at the second defendant’s residence, the
second defendant being his colleague at the time. He
said that as
the arresting officer he had to satisfy himself about the
allegations. He held the view that it was indeed a theft
by false
pretences matter. He further said that when he explained the charge
to the plaintiff, the plaintiff did not point out
to him that this
was a civil matter. Initially, he said if the plaintiff had
indicated to him that this was a civil matter he
would not have
arrested the plaintiff. However, when he was asked why he would not
arrest the plaintiff if he still believed
that the crime of theft by
false pretences had been committed by the plaintiff, he then
retracted and said he would still have
arrested the plaintiff.
[162] Sergeant Moonsamy told the court that he had been in the police
service for 20 years but at the time of this incident he
had 11
years’ service. He further stated that he discussed the case
with the second defendant shortly after the arrest of
the plaintiff.
It was either at Verulam or Marianhill. He could not be sure what
they had discussed. He said he only informed
the second defendant
that the suspect had been arrested and that the court would decide
the matter. He was asked if the second
defendant had not seen that
the plaintiff was under arrest when brought to the Amanzimtoti police
station. He said the second
defendant had seen that. He was then
asked why he had to inform the second defendant again about the
plaintiff’s arrest.
He said he saw no harm in doing that.
[163] He was further asked to comment about the fact that
Superintendent Reuben Govender had agreed with the plaintiff that
this
case was a civil matter and that the plaintiff should never have
been arrested in the first place. He conceded that he felt
embarrassed
that Superintendent Govender had agreed with the
plaintiff. He said that he was embarrassed because he did not know
why Superintendent
Govender had done what he did. He further said it
showed a lack of consultation on the part of Superintendent Govender
to make
a decision like that. In his view, Superintendent Govender
should have consulted with the second defendant and the investigating

officer.
[164] That concluded the case for the defendants.
The
law
[165] Sections 10, 12 and 35 of our Constitution provide, to the
extent relevant, as follows:
“
10. Human dignity. –
Everyone has inherent dignity and the right to have their dignity
respected and protected.”
“
12(1) Everyone has the
right to freedom and security of the person, which includes the
right–
a)
not to be deprived of freedom arbitrarily or without just cause;
d)
not to be tortured in any way; and
e)
not to be treated or punished in a cruel, inhuman or degrading way.”
“
35(2)(c) to have a legal
practitioner assigned to the detained person by the state and at
state expense, if substantial injustice
would otherwise result, and
to be informed of the right promptly;”
[166] It is trite that any deprivation of a person’s liberty,
such as arrest and/or detention at the hands of a law enforcement

agency, is
prima facie
unlawful. In
Minister of Justice v
Hofmeyr
[1993] ZASCA 40
;
1993 (3) SA 131
(A) at 153D-E the Appellate Division (per
Hoexter JA) stated as follows:
“
The plain and fundamental
rule is that every individual's person is inviolable. In actions for
damages for wrongful arrest or imprisonment
our Courts have adopted
the rule that such infractions are
prima facie
illegal.”
[167] In an action for wrongful arrest and detention a plaintiff only
bears the onus of proving the arrest and detention or, put

differently, the deprivation of his or her liberty. Recently, in
Relyant Trading (Pty) Ltd v Shongwe and another
[2007] 1 All
SA 375
(SCA) the Supreme Court of Appeal (per Malan AJA) reiterated
this position as follows (at par 6):
“
To succeed in an action
based on wrongful arrest the plaintiff must show that the defendant
himself, or someone acting as his agent
or employee deprived him of
his liberty.”
[168] The Appellate Division in
Minister of Justice v Hofmeyr
,
above, further held: ‘Once the arrest or imprisonment has been
admitted or proved it is for the defendant to allege and
prove the
existence of grounds in justification of the infraction.’ This
pronouncement was in approval of the AD’s
decision in
Minister
of Law and Order and others v Hurley and another
1986 (3) SA 568
(A) where the Court (per Rabie CJ) stated as follows (at 589D-E):
“
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.”
[169] Although the cause of action for damages arising from alleged
wrongful arrest and detention is based on the
actio iniuriarum
(Whittaker v Roos & Bateman
1912 AD 92
at 122 – 123),
liability for the delict is strict, in the sense that neither
culpa
nor awareness of wrongfulness on the part of the arrestor is
prerequisite. In
Relyant Trading (Pty) Ltd v Shongwe and another,
above,
the Court stated as follows (at paragraph 4):
“
Wrongful arrest consists
in the wrongful deprivation of a person’s liberty. Liability
for wrongful arrest is strict, neither
fault nor awareness of the
wrongfulness of the arrestor’s conduct being required. An
arrest is malicious where the defendant
makes improper use of the
legal process to deprive the plaintiff of his liberty. In both
wrongful and malicious arrest not only
a person’s liberty but
also other aspects of his or her personality may be involved,
particularly dignity.”
[170] In other words, a plaintiff is not necessarily required to
prove that the defendant had an intention to injure (
animus
injuriandi
). In
Tödt v Ipser
1993 (3) SA 577
(A) the
Appellate Division (per E M Grossgopf JA) stated (at 586G-F):
“
[A]n action for wrongful
arrest does not require proof of
animus injuriandi
in the full
sense of the term as including consciousness on the part of the
defendant that he is acting unlawfully. In the recent
judgment in
Minister of Justice v Hofmeyr . . . this Court expressly approved
the following passage from
Smit v Meyerton Outfitters
1971 (1)
SA 137
(T) at 139D:
‘
In die geval van die
actio
injuriarum
het die skuldbegrip met twee
oorwegings te maak. Die eerste is dat die verweerder opsetlik
(intentionally) gehandel het en die
tweede is dat hy geweet het dat
die handeling onregmatig is. In die geval van onregmatige arrestasie,
hoewel dit uit die actio
injuriarum ontwikkel het, is die tweede
oorweging nie 'n vereiste vir aanspreeklikheid nie.’
It follows that the allegation
in the particulars of claim of an intention to injure (which would
include consciousness of unlawfulness)
went beyond what was required
to disclose a cause of action for unlawful arrest. In respect of such
a cause of action, this allegation
may be regarded as surplusage.”
[171] Consequently, a defendant cannot argue that he or she genuinely
believed the detention or deprivation to be lawful. In
Tsose v
Minister of Justice
1951 (3) SA 10
(A) the Appellate Division
(per Schreiner JA) stated as follows (at 18C-G):
“
As I have indicated
above, the Transvaal Provincial Division held that even if no offence
was committed in the presence of Sergeant
Gentle, the third
respondent, who effected the arrests on the 21st and 23rd July, 1949,
the arrests were nevertheless legal because
the sergeant “entertained
the honest and reasonable belief that at the time of the arrests the
law was being contravened”.
This proposition was not supported
by counsel for the respondents in this Court and it is sufficient to
say that the English decisions
on which MALAN, J., relied are not
authority for any generalisation that in English Law an honest and
reasonable belief that the
law is being contravened justifies an
arrest without warrant. The scope of each statute relied upon as
rendering an arrest lawful
must be deduced from the language of its
provisions, read in their proper context. . . . The context here is
the codification of
a peace officer's powers of arrest contained in
secs. 26 and 27, which specially authorise arrest on reasonable
suspicion in certain
cases only. Those sections make ample provision
for summary arrest where there is danger that a suspected wrong-doer
may disappear
and so escape prosecution. In the present case if no
offence was committed in the presence of Sergeant Gentle, the arrests
were
unlawful.”
Analysis and Evaluation
[172] It is common cause that on 11 February 2004 the plaintiff was
arrested at his home in Amanzimtoti by members of the South
African
Police Service (the SAPS) and that on the same day he was transported
to Verulam police station where he was detained in
a police cell
until the following day (12 February 2004), when he was then
released.
[173] It is also common cause that the second defendant was at all
material times a member of the SAPS attached to the Public Order

Policing Unit and stationed at Marianhill. It is also not in dispute
that on or about 4 September 2003 the second defendant, acting
in his
personal and private capacity, concluded a contract of service with
Ace Driveways CC which carried on the business of tarmac
driveway
construction, in terms of which, on payment of an agreed sum of
money, the close corporation undertook to construct a
tarmac driveway
at the second defendant’s home in Verulam.
[174] Whilst the close corporation was registered in the name of the
plaintiff’s wife, it is clear from the evidence that
its
business was, in virtually every practical respect, being physically
managed by the plaintiff. For this reason, it was no
surprise and,
indeed, reasonably understandable that the second defendant assumed
or believed that the close corporation was owned
by the plaintiff.
However, it seems to me nothing turns on that issue, which clearly
has no bearing on the outcome of this matter.
[175] The issue before the court is whether the arrest and detention
of the plaintiff was wrongful and unlawful to the extent as
to render
the defendants liable to the plaintiff for delictual damages. The
defendants’ defence is that the plaintiff’s
deprivation
of liberty was lawful in that it was a sequel to a lawful criminal
charge of theft by false pretences which the second
defendant had
lawfully laid against the plaintiff.
[176] The plaintiff and his wife impressed me as being honest and
truthful witnesses. They gave coherent and corroborative evidence

which endorsed on what is, in my view, an objectively civil nature of
the dispute between the plaintiff and the second defendant.
On the
other hand, the second defendant was a poor, untruthful and
unreliable witness who sought to secure corroboration from
his
colleagues who, in turn, also sought to insulate themselves from
responsibility in relation to the plaintiff’s wrongful
arrest
and detention by generally fabricating evidence against the plaintiff
to fit in their cover up of the truth.
[177] It is common cause that the so-called criminal charge arose out
of a dispute between the plaintiff and the second defendant
over the
fulfilment of the contract aforesaid by either party. On the one
hand, the plaintiff alleged that the second defendant
repudiated the
contract by proceeding to hire another contractor, Mr Richards of
Tri-Star construction firm, to complete the second
defendant’s
driveway construction, whilst the second defendant, on the other
hand, claimed that due to the delay in the plaintiff’s
workmen
completing the job, he was entitled to hire Mr Richards to complete
the work and that he was thus entitled to a refund
of the specified
portion of the amount he had paid to the plaintiff. When the
plaintiff refused to pay back to the second defendant
the amount so
demanded, the second defendant construed the plaintiff’s
conduct as amounting to and constituting the crime
of theft by false
pretences.
[178] In Snyman, “CRIMINAL LAW”, 5
th
Edition,
at page 543, the learned author defines the crime of theft by false
pretences as follows:
“
A person commits theft by
false pretences if he [or she] unlawfully and intentionally obtains
movable, corporeal property belonging
to another, with the consent of
the person from whom she obtains it, such consent being given as a
result of a misrepresentation
by the person committing the crime, and
appropriates it.”
[179] Notwithstanding protestations to the contrary by the second
defendant and the other police witnesses for the defendants,
there
was not a shred of evidence adduced by, or on behalf of, the
defendants to the effect that the close corporation misrepresented

itself to the public and, in particular, to the second defendant,
that it carried on the business of tarmac driveway construction
when
in fact it did not. Nor was there any evidence submitted by the
defendants to the effect that the plaintiff or his wife or
anyone
acting in a representative capacity of the close corporation
intentionally, or otherwise, made any false representation
to the
second defendant that the tarmac driveway would be constructed at the
second defendant’s home when the person making
such
representation knew that the representation was false. Indeed, the
close corporation had, as at 2003, been in operation for
some 22
years, having started in 1981.
[180] It is clear to me that had there been no heavy rainfall over
the weekend preceding Monday of 15 September 2003, the plaintiff
and
his workmen would have reported for duty at the second respondent’s
home and done the tarring of the driveway. In that
event, this
dispute would not have arisen. The fact that the plaintiff might
have charged the second defendant more than what
other contractors
could have charged him, such as for the price of the kerbs, did not
render the issue between the parties criminal.
It remained a
contractual and civil dispute.
[181] Indeed, if at all there was any legal basis warranting the
arrest of the plaintiff, there was simply no justification in
the
circumstances of this case, to arrest him without having first
obtained a warrant for his arrest. Section 40(1)(b) of the Criminal

procedure Act 51 of 1977 provides that
‘[a]ny peace officer
may without a warrant arrest any person … whom he reasonably
suspects of having committed an offence
referred to in Schedule 1, …
’
The defendants submitted that, since the crime of theft by false
pretences was an offence listed in schedule 1 to the CPA,
the
plaintiff could lawfully be arrested without an arrest warrant. I do
not agree. The second defendant laid the criminal complaint
during
September 2003 but the plaintiff was only arrested on 11 February
2004. It could not be disputed that throughout this period
he was at
his home at Amanzimtoti with his family.
[182] The second defendant’s averment that the plaintiff’s
physical address was all along unknown is, in my view, disingenuous

and factually incorrect. At the outset the second defendant got to
know the plaintiff’s business through an advertisement
in a
newspaper which would have borne, at least, the contact number of the
plaintiff’s business. Apparently the contact
number furnished
in the advertisement was the plaintiff’s home landline
telephone number through which the second defendant
contacted the
plaintiff and/or his wife for the first time.
[183] In any event it was admitted by the second defendant that at
all times he was in possession of the plaintiff’s home

telephone number, albeit not the physical address. Indeed, even
Captain Ngwenya was in possession of the plaintiff’s telephone

number as he also testified that he had phoned the plaintiff and
asked him to report at the police station.
[184] The second defendant reluctantly admitted that on the basis of
the information he had in his possession at the earlier time,
even
before the dispute arose, he would have been a position to locate the
physical address of the plaintiff’s residence
or the location
of the close corporation’s office. Therefore, the alleged lack
of the plaintiff’s physical address
could not be the reason why
a warrant of arrest was not applied for.
[185] In any event, the fact that an offence in question was one
listed in the first schedule to the CPA was, in my view, not an

excuse not to apply for and obtain a warrant of arrest in
circumstances where this was possible and practicable to do, such as

in the present case. There was simply no urgency in the matter. This
was conceded by both Captain Naidoo and Captain Ngwenya.
In fact,
according to Captain Naidoo, he also regarded the matter as a
“relatively minor offence”. Of course, there
was no
criminal offence at all, in the first place.
[186] Furthermore, the arrest was not the only practicable method at
the disposal of the police to secure the attendance of the
plaintiff
in court. (Section 38 of the CPA.) In fact, in the circumstances of
this case and presuming there was a valid criminal
charge against the
plaintiff, arresting him would still have been the most undesirable
and inappropriate method of securing his
attendance to court.
Considering the nature of the alleged criminal charge, the personal
circumstances of the plaintiff, including
the fact that he was a
settled family man with a fixed abode, serving him with a criminal
summons (section 54 of the CPA) or a
written notice to appear in
court (section 56 of the CPA) would have been sufficient, effective
and appropriate to ensuring his
attendance in court. Indeed, both
Captain Naidoo and Captain Ngwenya ultimately conceded, under
cross-examination, that the arrest
of the plaintiff was not necessary
in the circumstances of this case.
[187] It is clear to me that the only explanation why the
investigating officer Ngwenya and/or the second defendant did not
seek
to have the docket in this case sent to the local senior public
prosecutor for a decision and, if necessary, authorisation of the

warrant of arrest against the plaintiff, was simply because they were
aware that the public prosecutor would probably not have
authorised
the arrest warrant because, in all probability, he or she would have
declined to prosecute the plaintiff of any crime
on the ground that
the dispute between the parties was a civil dispute and not a
criminal matter.
[188] Although the plaintiff and his wife persisted in their evidence
that the team of police officers who came to arrest the plaintiff

included Sergeant Thaver, whom they alleged played the most active
role in physically manhandling and assaulting both the plaintiff
and
his wife, this averment was denied by the relevant witnesses for the
defendant. Instead, they stated that Sergeant Thaver was
not present
during the arrest, but only present when the police confronted the
plaintiff on the N2 freeway on the previous day
of the arrest. I
believe the plaintiff and his wife on this point. On the previous day
(10 February 2004) in broad daylight they
had seen and recognised
Sergeant Thaver’s name by his name badge and there was no
reason that they could have mistaken his
identity only 24 hours
later, again in broad day light.
[189] It was only for some reason better known to the defendants’
witnesses as to why these witnesses tried to shelter Sergeant
Thaver
from blame. Or was it because they were all aware that Sergeant
Thaver was the number one culprit in subjecting the plaintiff
to
torture and humiliation? This proposition appears to be the most
probable answer to the question. Furthermore, it is significant
to
note that in the pre-trial minute signed by attorneys for both
parties the following appears at paragraph 3.1 thereof: ‘
It
is agreed that the plaintiff was arrested by Constable J Thaver,
Captain L Naidoo and Sergeant R Moonsamy on 11 February 2004.’
[190] In any event, it did not matter whether the plaintiff was
tortured and humiliated at the hands of Sergeant Thaver, or the

second defendant or any of the other police officers mentioned in
this saga, or all of them. The fact of the matter is that, on
the
evidence, it is clear beyond any doubt that every police officer who
dealt with the plaintiff, in one way or the other, did
so in the
course and scope of his employment with the first defendant. They
all acted in the fulfilment of a common objective,
namely, to ‘fix’
and humiliate the plaintiff, which was also in fulfilment of the
veiled threat that the second defendant
had previously made to the
plaintiff.
[191] It was the evidence of Sergeant Moonsamy that when they
arrived at the plaintiff’s house in the police bakkie, they
not
only blew the hooter but they also sounded the police siren. This
conduct on the part of the police was extremely unnecessary
in the
circumstances. It clearly showed the police motive of humiliating and
degrading the plaintiff. There was no way that the
plaintiff’s
neighbours did not get out to witness the Hollywood-style drama at
their doorsteps. As if that was not enough,
the police proceeded and
placed the plaintiff at the back of the open bakkie, handcuffed to
the metal iron bars behind the rear
window of the bakkie and drove
him away to the police station. From Amanzimtoti police station where
he was ‘positively identified’
by the second defendant as
the wanted suspect, he was placed in the Inyala truck, whether
handcuffed or not, and driven to Verulam
police station. During the
fairly long journey from Amanzimtoti to Verulam the plaintiff was
taunted and severely humiliated. He
spent the whole night in the
police cell under horrible and dreadful conditions, when he should
not have been arrested in the first
place.
[192] In the first place there was no justification for the second
defendant to involve himself personally in the matter, when
he
clearly should not have done so. His protestation that he did not is
not factually correct. It is common cause that he was present
when
they all proceeded to Amanzimtoti to have the plaintiff arrested. The
fact that he remained at Amanzimtoti police station
when some of his
colleagues proceeded to the plaintiff’s house, did not separate
him from the group. Thereafter, when the
plaintiff was being conveyed
to Verulam police station in the Inyala truck by other officers
(including Captain Naidoo, Sergeant
Moonsamy, W/O Nxumalo, Sergeant
Thaver and Inspectors or W/O’s GS Naidoo, Joseph and Perumal)
the second defendant was accompanying
them, albeit driving separately
in the police bakkie, which was obviously the same vehicle in which
the plaintiff was conveyed
from his home to Amanzimtoti police
station. Further, on his own version, the second defendant and
Captain Naidoo went into Captain
Ngwenya’s office at Verulam to
discuss about the case. Why would he do all these things if he was
not part of the group
targeting to arrest the plaintiff?
[193] According to the defendant’s case, the officers who went
to arrest the plaintiff were Captain Naidoo, W/O Nxumalo and
Sergeant
Moonsamy, of whom Sergeant Moonsamy was the one who actually effected
the arrest of the plaintiff. A close scrutiny of
their evidence
revealed several material discrepancies which clearly showed that
they were untruthful and unreliable in a number
of respects.
[194] Among other things, W/O Nxumalo testified that after Sergeant
Moonsamy had jumped over the plaintiff’s gate to arrest
the
plaintiff who was inside his premises, he had then seen the plaintiff
‘
going for Moonsamy’s firearm’
and he (W/O
Nxumalo) also jumped over the gate to assist Sergeant Moonsamy after
he was instructed by Captain Naidoo to do so.
Sergeant Moonsamy also
claimed that the plaintiff tried to grab his firearm. However, what
is strange is the fact that Captain
Naidoo who confirmed that he
instructed W/O Nxumalo to go and assist Sergeant Moonsamy, did not
say that he had seen the plaintiff
trying to grab Sergeant Moonsamy’s
firearm. The only conclusion I can draw from this discrepancy is that
at no stage did
the plaintiff ever attempt to go for Sergeant
Moonsamy’s firearm as alleged. This allegation was only a
smokescreen by these
police officers to try and justify the brutal
and inhumane manner in which they mistreated the plaintiff.
[195] Sergeant Moonsamy also testified that after they had confronted
the plaintiff at the gate, the plaintiff had turned and run
towards
the house. However, he was the only one to make this allegation that
the plaintiff ran towards the house. Strangely, both
Captain Naidoo
and W/O Nxumalo did not mention it. The reason for them to omit
mentioning it is clearly because such a thing never
happened.
[196] Further, in his written statement in the docket Sergeant
Moonsamy stated, amongst others, the following:
‘Whilst
trying to handcuff the suspect [the plaintiff], he started to kick
and punch at me.’
However, in his evidence in court he
never mentioned anything about the plaintiff having kicked and
punched at him, or even attempting
to do so.
[197] It was also significant that in his evidence-in-chief Sergeant
Moonsamy never mentioned that at some point the plaintiff
tried to
grab his firearm which was tucked in the holster on his (Sergeant
Moonsamy’s) waist. He only mentioned it during
his
cross-examination and when it was clear that he was simply trying to
corroborate W/O Nxumalo (who had previously testified)
on the issue.
Surely, this was a very important aspect of Sergeant Moonsamy’s
evidence because it would have somewhat mitigated
the police conduct
towards the plaintiff.
[198] Further, W/O Nxumalo testified that after he jumped over the
gate he separated Sergeant Moonsamy and the plaintiff as they
were
grappling. However, Sergeant Moonsamy testified that when W/O Nxumalo
climbed over the gate he (Sergeant Moonsamy) had already
handcuffed
the plaintiff, which would then mean that there was no need for W/O
Nxumalo to have separated him from the plaintiff.
This also clearly
shows that the plaintiff never engaged in any physical scuffle with
any of the police officers who came to arrest
him.
[199] It is therefore evident that the evidence adduced on behalf of
the defendants mostly consisted of blatant lies on the part
of the
witnesses concerned which proved, on a balance of probabilities, that
the motive of the police, the second defendant in
particular, was not
to deal with the plaintiff in terms of constitutional due process,
but rather to humiliate and degrade him
in front of his family and
neighbours. Indeed, this objective was achieved by the second
defendant.
[200] The plaintiff testified that his constitutional rights at the
time of arrest were never explained to him. Both in his written

statement and evidence-in-chief Sergeant Moonsamy, who claimed to be
the arresting officer, did not mention that he explained these
rights
to the plaintiff. He only said he did it when he was being
cross-examined. In the circumstances I am convinced that the

plaintiff’s constitutional rights at the time of his arrest
were never explained to him. If these rights were explained
to him
he would, most probably, have told the court, as he did in relation
to the stage when he was handed over to the Verulam
police for his
detention. He acknowledged that at that stage his Constitutional
rights were read out and explained to him as per
the SAP14A form.
[201] In doing all what he did, the second defendant, in
collaboration with, and assisted by, his colleagues, abused his
authority
as a police officer. The evidence abundantly demonstrates
that the second defendant abused his authority as a police officer in

that he improperly and maliciously and, with intent to deprive the
plaintiff of his liberty and violate his human dignity, caused
the
plaintiff to be arrested and detained for no reasonable and just
cause.
[202] I am satisfied that the defendants did not have any reasonable
cause for believing that the plaintiff had committed the crime
of
theft by false pretences or any other offence listed in schedule 1 to
the CPA, or at all. The defendants have, therefore, failed
to
discharge their onus of proving that the plaintiff’s arrest and
detention were justified and lawful. Consequently, the
plaintiff has
made out his case against the defendants on liability. This was
indeed, an unlawful, wrongful and malicious arrest
and detention for
which the defendants must be held liable. There is no reason why the
defendants should not be ordered to pay
the plaintiff’s costs
in respect of all the dates of hearing of this matter on liability.
[203] In the result, the following order is made:
1) The
defendants are jointly and severally liable for damages sustained by
the plaintiff arising from the unlawful, wrongful and
malicious
arrest and detention of the plaintiff on 11 February 2004, in the
amount which the plaintiff is able to prove or which
may be agreed
between the parties.
2)
The defendants are to pay the plaintiff’s costs for the dates
of hearing on liability, namely:
10, 11 and 12 August 2010;
20, 21, 22, 23 and 24 June 2011;
18, 19 and 20 April 2013;
18 and 19 February 2013;
14 and 16 October 2013; and
27 November 2013.
Appearances:
For the plaintiff: Mr L Singh
c/o Hlongwa Singh and Associates, Durban
For the defendants: Adv NM Naidoo
Instructed by: State Attorney, Durban
Date of judgment: 27 November 2013