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[2012] ZAGPPHC 82
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Steenkamp v Minister of Safety and Security (39599/2010) [2012] ZAGPPHC 82 (2 April 2012)
NOT
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT,
PRETORIA
(REPUBLIC OF SOUTH AFRICA)
CASE
NO: 39599/2010
DATE:02/04/2012
In
the matter between:
NIKIE
STEENKAMP
AND
THE
MINISTER OF SAFETY AND
SECURITY
......................................................
DEFENDANT
JUDGMENT
TLHAPl
J
[1]
The plaintiff instituted action for damages suffered as a result of
his:
(a)
Unlawful Arrest and Detention; he claimed an amount of R120 000.00;
(b)
Assault on him; he claimed an amount of R253 000.00:
(c)
Interest on the amounts in (a) and (b) a tempora mora at the rate of
15.5% per annum from the date of demand alternatively date
of summons
The
defendant denied liability in both instances and pleaded that the
defendant had been arrested in terms of
Section 40
of the
Criminal
Procedure Act 51 of 1977
, for crimen injuria committed against
members of the police.
[2]
The plaintiff testified that he had gone for dinner with his wife on
the evening of the 19 February 2010. It was the first date
after the
birth of their child. On their return home at about 22h00, they
stopped over at one of the popular viewing spots on John
Rissik
;
known as Klapperkop, to watch the city below. He did not take any
intoxicating liquor because he suffers of a Bipolar condition
and was
on medication.
A
police vehicle stopped next to theirs and, two policemen got out. The
one who came to his side opened the drivers door and put
his foot in
the door to prevent it from closing. None of the policemen present
wore name tags. They wanted to search the vehicle
and it offended him
that they accused him of being with a prostitute. There was an
exchange of words because the police refused
to identify themselves.
After the police left the plaintiff followed their vehicle and noted
the call sign code on the vehicle.
The plaintiff proceeded to the
Sunnyside Police Client Service Centre where the said police men were
stationed to report the incident.
[3]
He approached one of the eight policemen in attendance at reception,
reported the incident and availed the details of the police
vehicle.
He requested information on the identity of the said policemen
alternatively, the register detailing particulars of the
policemen
who had gone out on patrol and this was refused. He was denied
permission to speak to the senior officer in charge because
he now
wanted to lay a charge against the said policemen. The Station
Commander who was present responded by accusing him of being
a 'F'
drunk racist and told him to 'F' out of his police station. The
plaintiff responded by saying "F you all, I will get
the
information myself". He testified that he was courteous at the
beginning of his conversation with
the
police and that he got angry, he became frustrated and was aggressive
when all of them refused to give him the information he
had
requested.
[4]
The assault on him began when he tried to call his attorney. Six to
seven policemen assaulted him by kicking and punching him
and while
he was struggling with them he was carried by them to the holding
cells. In the process they dropped him on the ground
and handcuffed
him. He was told that nobody spoke to the station commander in the
manner that he did and he arrested without a
warrant and was not
advised of the charges against him nor of his rights. His personal
belongings were given to his. wife. In the
holding cell he was again
assaulted by four to five policemen. He was punched with fists,
handcuffed and kicked while on the ground.
This assault occurred at
about 24h00.
[5]
After two hours he was taken from the holding cell and assaulted
again with a hard object. He suffered fractures on his shoulder
and
right scapula. He struggled with the police because he refused to be
taken back to the cell. The plaintiff testified that one
of the
policemen he had met at Klapperkop came to the cells and showed him
his identity and asked if that was the information he
was looking
for. Furthermore he told the plaintiff that he should have left them
to do what they intended to do to his wife. He
was angered by these
utterances to such a degree that he put his hand through the bars,
pulled the policeman towards him and bashed
his head on the
barricades. The said policeman was injured on his left eye. After
this incident four to five policemen took him
out of the cells and
assaulted him again.
Later
that morning at about 9h00, he was formally charged with Crimen
Injuria, and was released on his own cognizance at 13h00.
The
policeman he had assaulted did not lay a charge.
The
plaintiff was advised by another police officer to lay charges
against the police for the assault and he was given a J88 medical
form to be completed by the doctor.
[6]
After his release photographs his family took photographs of the
injuries he had
sustained
and he received medical attention at a hospital in Pretoria West.
Sixteen copies of enlarged coloured photographs dated
the 20 February
2010 were handed in as exhibits. Photographs 4, 5, 6,7, 9,10, 11 were
of a very poor quality. Photo 1 shows 2x
bruises on his lower back;
photo 2 has a mark 'x' which is a point where he testified he was
injured on his right scapula; photo
3 had 2x mark 'x' on his left
upper arm and lower arm , which according to him were bruises; photo
8 and 14 show the same bruises
on the lower back as in photo 1; photo
12 and 13 are his left and right forearm which show striped bruises
across the arms, probably
caused by handcuffs; photo 15 shows a
bruise on the left side of his torso; photo 16 bruises shows 3x
bruises on his right side
of his torso, the middle one being the same
as in photo 2.
[7]
Plaintiff testified that as a result of the injuries the use of his
right arm had been compromised. He cannot carry heavy objects
any
longer and his play of golf had been affected. He was treated at the
Pretoria West Hospital but was not allowed to take the
J88 medical
report because the hospital staff informed him that it could only be
released to the police. The plaintiff testified
that he later
consulted an orthopaedic surgeon and among the documents discovered
was a report by Dr Hein Senske, on his examination
of the plaintiff
on the 6 June 2011. Although Dr Senske's report was relied upon he
was not called as a witness.
[8]
According to the plaintiff his employment suffered and he later was
asked to resign. He was employed by Ralph Tech and a dispute
was
lodged with the CCMA in respect of his dismissal. He was not in a
position to produce proof of such employment and information
on his
remuneration e.g. a salary advice. Furthermore he testified that
before the incident his Bipolar condition had been managed
and was
under control but that after this incident he suffered lack of sleep,
had developed a stammer and was short tempered and
he lacked
concentration. He was later diagnosed with post traumatic stress
syndrome. The plaintiff testified that his shoulder
was not given
further medical attention because he had exhausted his medical aid.
[9]
Lelanie Steenkamp, plaintiff's wife, corroborated the his evidence
relating to the incident at Klapperkop. She testified that
the
plaintiff used the 'F word against the police because they had used
it against him first. Six to eight policemen carried the
plaintiff
away without explaining his rights and she remained seated in the
service centre. She confirmed plaintiff's injuries
and his bipolar
condition. According to her the plaintiff was not a physically
aggressive person because he had never assaulted
her but he often
used abusive language when he spoke and that on that day she had to
clam him down because he spoke to the police
in a loud voice. At
Pretoria West Hospital they were given the plaintiff's X-rays and not
the J88.
[10]
Constable Rasenyalo testified that he was on patrol in the vicinity
of Klapperkop because hijackings and robberies were prevalent
in the
area. He was in police uniform. He saw a vehicle parked there between
22h30 and 23h00. When he approached the vehicle he
lit his torch and
the driver got out of the vehicle. An altercation ensued because the
said driver denied him permission to search
the vehicle saying he did
not have a search warrant. The driver explained that he was with his
wife. Mr Ralenyalo denied that he
accused plaintiffs wife of being a
prostitute or had tried to force the drivers door open with his foot.
The driver drove off and
he followed the vehicle with the intention
of reporting the incident to his station but he was called to attend
to another complaint
and he never saw the said driver again. He
testified that he volunteered information on his identity and had
given the said driver
the vehicle call sign number.
[11]
Lieutenant Colonel Ntebuzeni Rasilingwana was the relief commander in
the
community
service centre. He testified that when he enquired from the plaintiff
the reason he required the identity of the policemen,
the plaintiff
responded in an arrogant manner. The plaintiff wagged a finger in his
face and he reprimanded him. The plaintiff
used the 'F word against
him and he felt insulted and degraded in that the word was uttered in
the service centre while he performed
his duties. According to him it
was necessary to arrest the plaintiff because he was very disruptive
and had insulted him. He informed
plaintiff that he was charged with
crimen iniuria. The plaintiff resisted arrest and because he was
aggressive, three policemen
were requested to assist in the arrest.
He denied that the plaintiff was assaulted during arrest or that he
had refused him his
medication. He saw plaintiff again at 6h00 during
cell inspections and no complaints were lodged by the plaintiff about
the any
assault and or that he had sustained injuries.
[12]
Section 40 of the Criminal Procedure Act 51 of 1997 ('the Act')
allows for the arrest without a warrant by a peace officer
of a
person who commits or attempts to commit an offence in his presence.
The defendant therefore bore the onus of establishing
the lawfulness
of the plaintiff's arrest on a balance of probabilities Minister of
Safety and Security v Tyulu
2009 (2) SACR 282
(SCA) 287 l-J.
[13]
It is common cause that prior to his arrest the plaintiff (the
driver) had an encounter with two policemen who were travelling
in a
police vehicle at the viewing spot at Klapperkop. An altercation
ensued between the plaintiff and Constable Raselonya because
according to the plaintiff the policemen had referred to his wife as
a prostitute and they wanted to search his vehicle without
a warrant.
Constable Raselonya knew when they all departed from the scene that
the plaintiff would proceed to their station in
order to lodge a
complaint against them. However I do not find that he was a reliable
witness when he testified that he volunteered
information on his
identity to the plaintiff at Klapperkop and that he too wanted to
report the incident to his station but was
called to attend to
another complaint. In the same vain he could have telephonically
given a report on the incident and informed
the station to expect a
visit from the plaintiff
[14]
It is also common cause that none of the police officers at the
service centre at Sunnyside Police Station were willing to
divulge
any particulars of the policemen who were on patrol. The said police
vehicle was in the fleet of the station because it
was identified as
such by the plaintiff through its call sign number. The attitude of
Lieutenant Rasilingwana was clear, and this
is confirmed in his
evidence, he was not going to give those particulars not even the
vehicle register to the plaintiff and his
wife unless they explained
why they required the identities of the policemen.
[11]
I also find Lt Rasilingwana to have been an evasive witness in as far
as he failed to testify about his conduct and that of
the police
present at the service station to the plaintiff's enquiry. As I see
it a heated argument ensued. The 'F' word was used
by the policemen
and, the plaintiff against each other This is bome out by the
testimony of the plaintiff's wife who tried to calm
him down because
he spoke in a loud voice with the police. It is possible that the
plaintiff wagged his finger in Lt Rasilingwana's
face in the process.
[12]
The question to be asked is whether Lt Rasilingwana exercised his
discretion to
arrest
properly; could one say that an offence of crimen iniuria was indeed
committed and whether it plaintiff's intention to insult
and degrade
the Lieutenant in his person? It is my view that the discretion to
arrest was not properly exercised and that the arrest
and detention
of the plaintiff from about 24h00 on the 19 February 2010 to
13h00
on the 20 February 2010 was unjustified and was therefore unlawful.
The fact that the plaintiff refused to divulge his reasons
for
seeking the policemen's identities and that his behaviour was
aggressive seems to have been the reason for the arrest.
Lt
Rasilingwana failed to appreciate the circumstances under which the
words were uttered. The plaintiff came to the service centre
because
he had a complaint against certain policemen. There had already been
an altercation at Klapperkop so plaintiff could not
have been in a
good mood when he arrived. The plaintiff was frustrated and angered
by the conduct of all the policemen at the service
centre (including
the Lieutenant) who refused to assist him by giving information on
the policemen who had gone out on patrol in
a vehicle the plaintiff
had identified as belonging to that station.
Lt
Rasilingwana was the relief commander that night. A complaint against
any of the members under his charge was a serious matter.
He should
have given the matter priority, and summoned the policemen on patrol
to the station. He could have taken the plaintiff
and his wife to an
office to properly interview them on the conduct of his members and
among other things given them the names
of the policemen. He could
have tried to calm plaintiff down and compile a report or probably
even opened a docket if it related
to a criminal complaint. If the
plaintiff was still in foul mood he could have obtained their
particulars and caused their complaint
to be registered in an
occurrence book and given them the assurance that their complaint
would be investigated.
[13]
The plaintiff bore the onus to prove on a balance of probabilities
the assault and that it was unlawful. In this regard I turn
to the
pleadings and his testimony. There was no expert evidence to prove
that his bipolar condition had worsened as a result of
the arrest and
assault or that he now also suffered of a post traumatic stress
disorder.
[14]
Although I do find that the plaintiff was assaulted during his arrest
and that he sustained certain injuries as is evident
from the
photographs handed in, I am not satisfied that he sustained serious
injuries or that he was brutally assaulted by the
police on four
different occasions as testified to by him. I am of the view that he
had the tendency to exaggerate the facts and
effects of the assault.
In
respect of the assault, it was stated in the particulars of claim
state that he was assaulted at about 4h00 when he was taken
from his
cell. In his testimony he stated that he was assaulted immediately
upon his arrest which was at about 12h00 and then again
in the cells
when he was locked up. After two hours of being locked up ( at about
2h00) he was taken from the cells and assaulted
again. A further
assault by the police occurred after he had injured a policeman by
bashing his head against the barricades. I
am of the view that much
more serious injuries could have been visible from the photographs.
[15]
In the particulars of claim it is stated that his shoulder had to be
put back into position by using anaesthetics. It is not
clear if this
was done by being placed under general anaesthesia or by some other
method of anaesthesia. His wife testified that
X-rays were taken and
these were handed over to them to keep, it is further not clear to me
as to when the photographs were taken;
were they taken before going
to hospital or afterwards. For example, in the photographs 1, though
not clear it seems plaintiff
had raised his right arm, photograph 2
he is holding a glass in his right hand, photograph 15 his right arm
is raised above his
head and it does not look like his shoulder joint
is out of place. In my view if photograph 15 was taken before going
to hospital
and his shoulder had to be reset under anaesthetics he
would not have been able to raise his arm that high above his
shoulder;
alternatively if the photographs were taken after his visit
to hospital he could have been taken one of his right arm in a sling.
[15]
The reason for my questioning the serious nature of the assault and
injuries is the absence of any medical record in the form
of a
J88(medical report), any hospital record and X-rays with explanations
regarding the plaintiffs injuries upon his examination
at hospital on
the 20 February 2010, or that of any subsequent treatment. I further
do not understand why the medical records were
not called for by the
plaintiff when preparing for trial in view of the substantial amount
he had claimed. It does not seem that
any such records were availed
to the Orthopaedic Surgeon (Dr Senske), when he examined and
consulted plaintiff on the 6 June 2011.
in part A of his report it
would seem that the information is from the plaintiff and no mention
is made by him of having viewed
previous medical reports as support
for information given to him by the plaintiff as mentioned under
"BEHANDELING" in
particular (a) and (c) and for his
findings and recommendations.
[16]
In the result the following order is made:
Judgment
is granted in favour of the plaintiff as follows:
1.
Against the defendant for the payment of damages in the sum of R75
000.00 for unlawful arrest and detention;
2.
Against the defendant for the payment of damages in the sum of
R20,000.00 for pain and suffering;
3.
Interest on each of the above amounts will run at the prescribed rate
of 15.5% per annum a tempore morae from the date of judgment;
4.
The defendant is ordered to pay costs of suit.
VV
TLHAPI
(judge
of the high court)
HEARD
ON RESERVED ON DELIVERED ON
ATTORNEYS
FOR THE APPLICANT COUNSEL
FOR
THE APPLICANT ATTORNEYS
FOR
THE RESPONDENT COUNSEL
FOR
THE RESPONDENT
02
NOVEMBER 2011
04
NOVEMBER 2011
02
APRIL2012
MARIO
COETZEE ATT. R.F DE VILLERS
THE
STATE ATTORNEY M.O.R MODISA