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[2012] ZAGPPHC 123
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Magagula v Minister of Safety and Security (33714/06) [2012] ZAGPPHC 123 (17 June 2012)
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT PRETORIA)
CASE
NO: 33714/06
DATE:
2011-06-17
In
the matter between
O
MAGAGULA
.................................................................................................................
Plaintiff
and
MINISTER
OF SAFETY AND
SECURITY
.....................................................................
Defendant
JUDGMENT
ZONDO
J:
[1]
In this matter the plaintiff has sued the defendant, the Minister of
Safety and Security, for damages for unlawful arrest and
detention.
The claim arises out of events that occurred in August 2004 when the
plaintiff was arrested by the South African Police
and detained. The
arrest occurred on the 25th August 2004, On or about the 30th August
2004 the plaintiff appeared in the Magistrate's
court in connection
with a charge of murder. His case was postponed several times in the
next few months until August 2005 the
charges against him were
withdrawn. He was not charged alone in regard to that charge of
murder, but was charged with a friend
of his, Mr Ndimande, who had
also been arrested on 25th August 2004. They were both released in
August of 2005 after the prosecutor
had declined to prosecute them.
[2]
I have indicated that the date on which both the plaintiff and Ms
Ndimande were arrested was the 25m August 2004, but it was
Mr
Ndimande who was arrested first. He was initially arrested by the
police at Krugersdorp in connection with a case of housebreaking,
but, after he had been arrested in connection with that case, he was
toid to wait at the reception at Krugersdorp Police Station
because,
so he was told, there was somebody who was going to come and fetch
him, That was Inspector Gordon. In due course Inspector
Gordon did
arrive at the Krugersdorp Police Station, Inspector Gordon fetched Mr
Ndimande from the reception at the police station
in Krugersdorp. In
fact he did not fetch Mr Ndimande only but he also fetched somebody
else who had also been arrested in connection
with the housebreaking
case. His name was Obakeng.
[3]
It would appear that Inspector Gordon had received some reports to
the effect that Obakeng and Mr Ndimande may have had information
concerning or were suspects in the case of, the murder of a certain
white lady in the Chancliff area. After Inspector Gordon had
arrived
at the reception at the police station in Krugersdorp, he took off
the handcuffs that Mr Ndimande and Obakeng had, and
put another set
of handcuffs that he had brought with him around the wrists of each
one of the two. He put both Obakeng and Mr
Ndimande into a car and
drove with them to Roodepoort Police Station.
[4]
Once Inspector Gordon and the two men had arrived at the Roodepoort
Police Station, Inspector Gordon took the two men to his
office for
an interview. Mr Ndimande in his evidence testified that, while he
was being interviewed by Inspector Gordon, Obakeng
waited outside the
office so that they were not interviewed at the same time in the same
office. This was accepted as correct by
counsel for the defendant.
What happened at Inspector Gordon's office on that day when Mr
Ndimande was there is very important
for this case, because the
defence put up by the defendant against the plaintiff's claim is to
the effect that Mr Ndimande voluntarily
and freely gave information
to Inspector Gordon on that occasion and implicated himself and the
plaintiff, i.e. Mr Magagula in
the murder of the white lady to whom !
have referred. The white lady was a Ms Alberts,
[5]
It is common cause that at some stage on that day Obakeng was taken
back to Krugersdorp Police Station. Evidence given by Inspector
Gordon was to the effect that Obakeng was taken back to Krugersdorp
Police Station because, when Inspector Gordon interviewed him,
it
became clear that Obakeng had nothing to do with the murder of Ms
Alberts. Inspector Gordon testified that he retained Mr Ndimande
at
Roodepoort Police Station because Mr Ndimande had given him
information that implicated himself as welt as the plaintiff in
the
murder. According to Inspector Gordon, after some time, he took Mr
Ndimande to the plaintiff's workplace because Mr Ndimande
told him
that he could show him where the other person was whom he had
implicated in the murder. According to Inspector Gordon
he and Mr
Ndimande then went there together with one Inspector Nel and the
plaintiff was arrested at his place of work. It would
appear that,
when the police tried .to get information from the plaintiff, they
were unsuccessful because he chose to exercise
his right to remain
silent
[6]
It is common cause that at some stage on the 25th August, the police
went to the place of residence of the plaintiff to search
for a
firearm but could not find any firearm, Indeed, it appears that they
may have gone there for the second time and at some
stage even called
the Dog Unit of the South African Police to help them find the
firearm that they believed had been used in killing
Ms Alberts. On
each occasion that they went there, they did not find the firearm.
[7]
The picture that one gets from the evidence given by Inspector Gordon
surrounding his interaction with Mr Ndimande at his office
on 25lh
August 2004, is a picture that suggests that Mr Ndimande, of his own,
and without any pressure whatsoever from anybody,
decided, when being
interviewed by Inspector Gordon, to say that he and the plaintiff had
been involved In the murder of Ms Alberts.
However, when one has
regard to the evidence that was given by Mr Ndimande, the picture is
very different. Mr Ndimande testified
that Inspector Gordon asked him
about the murder of the lady I have referred to and he told him that
he knew nothing about it,
or that he had heard about that murder one
day after the day on which the murder had occurred. Mr Ndimande says
that Inspector
Gordon was not prepared to take his answer that he had
nothing to do with the murder of Ms Alberts and did not know anything
about
it.
[8]
Mr Ndimande's evidence was that, since he continued to say that he
did not know anything about the murder, Inspector Gordon
assaulted
him repeatedly in his office. Mr Ndimande testified that Inspector
Gordon took a plastic bag that was clear in colour,
and had a blue
South African Police badge, and was written "South African
Police Service" and put that plastic bag over
his head and face,
and made him lie on his back and sat on his chest, and closed the
plastic bag with the result that Mr Ndimande
would suffocate and not
be able to breath properly. Mr Ndimande says that Inspector Gordon
told him that if, while he had the plastic
bag over his head and
face, he i.e. Mr Ndimande wanted to talk, he should shake his head.
Indeed, Mr Ndimande says that, when he
was suffocating and was
running out of breath, he shook his head and Inspector Gordon would
then pull out the plastic bag, and
would then ask him whether he was
prepared to speak the truth. In this regard I need to point out that
during Mr Ndmande's evidence,
Mr Ndimande was giving his evidence in
his own vernacular language, and his evidence was interpreted into
English for the benefit
of the Court. However, when Mr Ndimande gave
evidence about Inspector Gordon asking him whether he was prepared to
speak the truth
whenever he had been suffocating because of the
plastic bag being closed over his head and face, Mr Ndimande quoted
what Inspector
Gordon said in Afrikaans. Mr Ndimande testified that
Inspector Gordon asked him in Afrikaans: "Wil jy die waarheid
praat?"
[9]
Mr Ndimande said that each time his response to the question whether
he wanted to speak the truth would be that he could not
tell him
anything new because he did not know anything about the murder, and
Inspector Gordon would once again put the plastic
bag over his head
and face and continue to sit on his chest and close the plastic bag
thereby suffocating him. When Mr Ndimande
could not take it anymore,
he would once again shake his head and then Inspector Gordon would
pull off the plastic bag and once
again would ask him: "Wil jy
die waarheid praat?"
[10]
Mr Ndimande's evidence was that at a certain stage he was feeling
very dizzy, and when Inspector Gordon pulled out the plastic
bag from
his face and head, he found that there were three other men in the
office who where also assaulting him. He said that
they were kicking
him. He said that he did not know their names, but he indicated that
he could identify them. Mr Ndimande testified
that at some stage he
was crawling under a table in Inspector Gordon's office, because, as
all of this was happening, his hands
were still handcuffed behind his
back. He testified that at some stage while he was being assaulted in
Inspector Gordons office,
somebody knocked on the door, and there
appeared a white lady and when he screamed to try and get her to help
him, the lady just
looked at him and walked away.
[11]
Mr Ndimande's evidence was to the effect that he told Inspector
Gordon that on the night on which it seems that Ms Alberts
was
killed, he and the plaintiff were in a tavern called 777 and were
watching a soccer match on TV. He Indicated that that tavern
used to
close around 20:00 in the evening and that on that night they left
before it could close, He said that he took a taxi home.
[12]
The evidence given by Mr Ndimande with regard to what happened in
Inspector Gordon's office when he was there was given in
a manner
that was very logical and understandable. He was cross-examined at
some length on his evidence in this regard. I will
revert In due
course to certain aspects of his cross-examination in regard to the
evidence on what happened in Inspector Gordon's
office. I do not
propose to go into all the details about the evidence that was given
in this matter, because, in my view, the
focus ought to be determined
by what the issues are between the parties, To a very large extent
the main issue between the parties
is whether or not Mr Ndimande gave
any information to inspector Gordon that implicated himself and the
plaintiff in the murder
of Ms Alberts freely and voluntarily.
[13]
Later on in the day or early evening, or in the evening, Mr Ndimande
was taken from the cells in Krugersdorp, it would seem,
because at
some stage after the plaintiff had also been arrested, Mr Ndimande
was taken back to Krugersdorp police cells. This
was in the night and
the plaintiff was also taken from Roodepoort Police Station to
Krugersdorp Police Station. The two of them
were kept in different
cells.
[14]
A while later inspector Gordon returned and took Mr Ndimande out of
the cells at Krugersdorp Police Station to a certain lady
who, it
transpired, was Colonel Eksteen. Colonel Eksteen prepared a statement
which she said was prepared on the basis of information
that was
supplied to her by Mr Ndimande. She, together with about three or
four others, went to the murder scene of the late Ms
Alberts, as well
as to the 777 tavern. Colonel Eksteen and her team took Mr Ndimande
with them to the murder scene and to the 777
tavern. The purpose of
the trip was, according to Inspector Gordon and Colonel Eksteen, to
give the opportunity to Mr Ndimande
to a pointing out because,
according to them, he had indicated that he was prepared to do that.
Photographs were taken which depict
Mr Ndimande pointing at certain
objects or areas as well as photographs which depict Mr Ndimande
which were intended to show whether
he had any visible injuries.
[15]
During the cross-examination of Mr Ndimande by counsel for the
defendant, Mr Ndimande indicated that the pointing out occurred
after
the plaintiff had been arrested, and counsel for the defendant
conceded that that was true. If that is so, it seems to me,
therefore, that the pointing out cannot be taken into account for
purposes of determining whether the suspicion that the police
say
they had, that the plaintiff had committed a schedule 1 offence,
namely murder, was based on reasonable grounds. That is because,
if
the plaintiff had already been arrested by the time the pointing out
happened, then the decision to arrest and detain the plaintiff
can
only be justified with reference to the information that was
available to the arrestor at the time of the arrest. It seems
that
such information as the police might have had at the time that they
arrested the plaintiff, would have been the information
that Mr
Ndimande is said to have given to Inspector Gordon during the time
that the two of them were in Inspector Gordon's office.
[16]
When the defendant presented its case, Inspector Nel also gave
evidence relating to what, according to him transpired when
he, i.e
Inspector Gordon and Mr Ndimande were in Inspector Gordon's office,
and he interviewed Mr Ndimande before they proceeded
to the
plaintiff's workplace to arrest the plaintiff, i need to point out
that, when Ndimande was in the witness stand, it was
never put to him
what he told, or may have told Inspector Nel. Indeed, when Mr
Ndimande was cross-examined, no reference was made
to Inspector Nel
having had any discussions with Mr Ndimande at all. In accordance
with the normal rules of cross-examination,
evidence that has not
been put to a witness to enable the witness to defend himself against
it or explain it cannot be used against
that witness. If one then has
regard to that, it follows that, indeed, the only evidence that will
have to be considered in determining
whether or not the police had
reasonable grounds for the suspicion contemplated in section 40(1
)(b) of the
Criminal Procedure Act of 1977
will be such information
as may be properly said to have been given to Inspector Gordon when
Inspector Gordon and Mr Ndimande were
in Inspector Gordon's office on
the 25th August 2004.
[17]
Before I focus on the evidence of what occurred between Inspector
Gordon and Mr Ndimande when the two were in the latter's
office on
the 25th August 2004, it is important, to point out that after a few
days, that is in the week following the week of
the arrest of the
plaintiff and Mr Ndimande, Mr Ndimande was taken to a Senior
Magistrate in Krugersdorp, Magistrate Visagie, for
purposes of him
making a confession statement. However, once Mr Ndimande was in the
Senior Magistrate's office, together with two
other people, including
an Interpreter, and he was asked whether or not he wanted to make any
statement, whether or not he had
been attacked, and whether he would
make such a statement freely and voluntarily, he told the Senior
Magistrate that he was not
prepared to make a confession statement or
words to that effect, and that he had been assaulted by Inspector
Gordon who effectively
wanted him to make a confession statement.
[18]
The Senior Magistrate prepared a report or statement of her interview
with Mr Ndimande. I do not propose to go into the details
of that
statement, but once this judgment has been transcribed, I might quote
some parts of that statement. What I can say is that
a reading of
that statement shows that Mr Ndimande complained that he had been
treated very badly by Inspector Gordon, that he
had been assaulted
and, indeed, what he told the Senior Magistrate included his
complaint that in his office Inspector Gordon had
used a plastic bag
to put over his head and face and suffocated him. Indeed, Mr Ndimande
referred also to vulgar language that
had been used by Inspector
Gordon. In his evidence before this court, Mr.Ndimande had also
referred to very vulgar language that
he said had been used against
him by Inspector Gordon to try and force him to do what Inspector
Gordon wanted him to do.
[19]
I must indicate, going back to what I have already said earlier on
relating to a statement that was prepared by Colonel Eksteen,
that Mr
Ndimande testified that he was not given a chance to read that
statement, nor was it read back to him. He indicated that
he gave
some information to Colonel Eksteen, like where he lived and so on
but he indicated that a lot of information that was
contained in that
statement is not information that Colonel Eksteen got from him. When
he was asked where Colonel Eksteen would
have got that information,
because it is information that only Mr Ndimande would have known, Mr
Ndimande's response was that Colonel
Eksteen would have been told
that information by Inspector Gordon, who had got it from him after
assaulting him. There was much
controversy about whether or not, when
Ndimande was taken to the Senior Magistrate Visagie, he was taken
there by Inspector Gordon.
Ndimande insisted that he was taken there
by Inspector Gordon. He said that Inspector Gordon had first left the
plaintiff in the
cells downstairs in the building where Senior
Magistrate Visagie was, and took Ndimande to Senior Magistrate
Visagie.
[20]
Ndimande testified that the Senior Magistrate asked Inspector Gordon
to leave the room, obviously because she wanted to be
able to speak
to Ndimande without Ndimande being under any pressure with regard to
what to say, but the defendant said that it
was not Gordon who took
Ndimande to the Senior Magistrate, i do no think that much turns on
this. The fact of the matter is, once
he got a chance to tell the
Senior Magistrate what had really happened, Mr Ndimande told the
Senior Magistrate information that
is very similar to the evidence
that he presented to this court on the witness stand about assaults
on him by Inspector Gordon.
[21]
Before I proceed further, I do need to refer to a statement which
appears in EXHIBIT BD72, that is at page 72 of that exhibit,
a
statement by Inspector Gordon. This statement is particularly
relevant to what Inspector Gordon says in the statement he was
told
by Ndimande. I shall read paragraphs two and three of that statement
which is in Afrikaans, Paragraph 2: "Op 25 August
2004 om
ongeveer 14;20 het ek inligting ontvang dat daar twee op Krugersdorp
MAS896/08/04 gearresteer is. Ek het twee verdagtes,
Jeffrey Ndimande
en Obakeng uitgeboek en na my kantoor te Roodepoort geneem vir
ondervraging/' Paragraph three "Tydens ondervraging
met Jeffrey
Ndimande het hy 'n rapport aan my gemaak. Ek het horn volgens artikel
35 gewaarsku en ek het my vergewis dat hy sy
regte verstaan. Hy het
voortgegaan en my meegedeel dat hy en ene Owen 'n huis te Chancliff
wou roof. Dinge het egter skeef geloop
en hy het die vrou nege maal
geskiet, waarna hy en Owen weggehardloop het."
[22]
The question which arose with regard to this statement when Inspector
Gordon was cross-examined, related to the use of the
word "hy"
in paragraph 3 which I have just read. Actually, it is in the last
sentence of paragraph 3, namely, "dinge
het egter skeefgeloop en
hy, (that is the "hy" that I am referring to), het die vrou
nege maal geskiet, waarna hy en
Owen weggehardloop het". It was
suggested to Inspector Gordon that what he says in that sentence read
with the previous sentences
in that paragraph and the paragraph
before is that Ndimande told him that he and Owen wanted to rob a
house in Chanclif, but that
things did not go well, and he shot that
woman nine times and that he, that is "hy\ referred to Ndimande
and not to Owen Magagula,
or the plaintiff. If that understanding of
that sentence in that paragraph is correct, it would mean that
Inspector Gordon, according
to him, had been told by Ndimande that it
was Ndimande who had shot Ms Alberts. This would be contrary to the
evidence that Inspector
Gordon gave because he testified that
Ndimande had told him that it was the plaintiff who had shot the
lady. Inspector Gordon resisted
vigorously the understanding that the
word "hy" in that last sentence of paragraph 4 referred to
Ndimande and he sought
to say that when he was writing that paragraph
or that sentence, he meant the plaintiff. It-seems to me that, upon a
reading of
that paragraph, the word "hy" is a reference to
Ndimande and not Owen Magagula or the plaintiff, and that the basis
upon
which Inspector Gordon tried to escape that conclusion, is not
justified by a proper reading of paragraphs 2 and 3 of that
statement,
[23]
The plaintiff and Ndimande were taken to court on the 30th August
2004 and they appeared before a Magistrate. It would appear
that they
applied for bail, which Inspector Gordon opposed, and the matter was
remanded to another date when Inspector Gordon was
to check certain
information relating to the bail application that needed to be
checked, relating to the plaintiff's residential
address. When the
matter once again came before the Magistrate's Court, Inspector
Gordon opposed the application, and the Magistrate
refused Mr
Ndimande's and the plaintiff's application for bail.
[24]
There was no appeal against the Magistrate's decision refusing bail,
and the murder case kept on being postponed. It is common
cause that
at a certain stage blood samples were taken from the plaintiff and
Ndimande by the police with a view to ensuring that
some DNA tests
were conducted in connection with the murder case. It took a long
time before the results were received. The DNA
results did not
implicate the plaintiff and Mr Ndimande. The
Prosecutor or Senior
Public Prosecutor subsequently applied his mind to the case against
the plaintiff and Ndimande. The material
he had before him included
the report or statement taken by, or prepared by the Senior
Magistrate in Krugersdorp in which Mr Ndimande
indicated that he had
been assaulted by Inspector Gordon. The Senior Public Prosecutor, in
the light of this, took the decision
not to prosecute the plaintiff
and Mr Ndimande in regard to the murder case. It may be of course
that that was not the only issue
that the Senior Public Prosecutor
considered. He may also have considered the results of the DNA test,
but the long and short of
it is that he or she declined to prosecute,
and this led to the plaintiff and Ndimande being released, As I have
indicated, that
was in August 2005. That means that the plaintiff and
Mr Ndimande had been in detention for about a year by the time that
they
were released from police custody,
[25]
In the light of the importance of what happened at the office of
Inspector Gordon between himself and Ndimande on the 25
th
August 2004, it is appropriate that I return to that issue. In doing
so I wish to point out that during the cross-examination of
Mr
Ndimande, what was put to him, with regard to his evidence about
assault, was in effect a bare denial. It was put to Mr Ndimande
that
Inspector Gordon would deny having assaulted him or suffocated him
with a plastic bag such as the one that was described by
Mr Ndimande,
or having suffocated him in any way. It was never put to Mr Ndimande
and no evidence was led that the South African
Police Service do not
have any plastic bag that would fit the description that he gave in
court, namely a plastic bag that is clear
in colour, that is written
South African Police Services, and that has a blue South African
Police badge. No evidence was led to
say no such plastic bag is kept
by the South African Police Service. It was also not put to Mr
Ndimande that there were no other
people who came into Inspector
Gordon's office while he was with Inspector Gordon. In this regard I
am talking about the three
or four people, because he testified that
at some stage when Inspector Gordon pulled out the plastic bag from
his head and face,
he found that there were three people in the
office in addition to Inspector Gordon and they were kicking him,
[26]
Mr Ndimande also gave evidence that he was made to sit on a chair at
same stage by Inspector Gordon. This was not denied. It
was also not
put to him that this was not true. His evidence that at a certain
stage there was a knock on the door and there appeared
a white lady
whose attention he tried to catch, but who looked at him and walked
away was also not challenged. The vulgar language
that Mr Ndimande
testified was used by Inspector Gordon to him during the time that
they were in Inspector Gordon's office, was
also not denied and it
was never put to him that Inspector Gordon did not use such language.
Indeed, Mr Ndimande's evidence in
terms of which he quoted Inspector
Gordon, as having asked him in Afrikaans: "Wil jy die waarheid
praat?" was never challenged.
It was also never put to Mr
Ndimande that Inspector Gordon never asked him such a question even
in a different context.
[27]
On the defendant's counsel's submission, Ndimande's evidence in
relation to assault and what happened in Inspector Gordon's
office
was a fabrication. I must point out that I observed Mr Ndimande as he
gave evidence, and he made a good impression on me
and I think that
on the whole, his evidence about what happened at Inspector Gordon's
office was very detailed. If the South African
Police Service do have
plastic bags which fit the description that Ndimande gave, the
question that would arise is: how would Mr
Ndimande have known about
the existence of a clear plastic bag which bore a badge of the South
African Police if the position was
not that he was telling the truth.
If he was fabricating this story, why would he choose to say that
Inspector Gordon used a plastic
bag that h&d the South African
Police Service badge that was clear in colour? The kind of details
that Mr Ndimande gave in
his evidence about what happened in
Inspector Gordon's office suggest to me that his version has a ring
of truth about it. On the
other hand, if one looks at the fact that
what was put to him was simply a bare denial, it becomes difficult to
accept that he
was fabricating all of this evidence about having been
assaulted and having been suffocated with a plastic bag bearing a
South
African Service badge, about Inspector Gordon asking him in
Afrikaans: "Wil jy die waarheid praat" and about a white
lady who knocked at the door whose attention he tried to catch but
who simply walked away.
[28]
As I have indicated, Mr Ndimande even quoted Inspector Gordon, asking
in Afrikaans whether Mr Ndimande wanted to speak the
truth. There is
another aspect to the matter. That is that, when Mr Ndimande got the
first opportunity of telling somebody outside
the South African
Police Service that he had been assaulted by Inspector Gordon, he did
so. He told senior Magistrate Visagie that
he had been assaulted
repeatedly by Inspector Gordon, and that was the first person outside
of the South African Police Service
that he met since his arrest.
Actually I must go back to the day when the plaintiff and Mr Ndimande
appeared before the Magistrate's
Court. Both Mr Ndimande and the
plaintiff testified that, when they were told in the Magistrate's
Court that their case was being
remanded, they said that they raised
their hands to indicate to the Magistrate that they had something to
say, and when the Magistrate
asked them what they wanted to say, they
said that they did not want to go with Inspector Gordon. They
indicated that they feared
that he would assault them or ill-treat
them.
This part of their evidence was never challenged. Inspector Gordon
was specifically asked about this piece of evidence, and
he said that
he did not remember. Of course, If the defendant wanted to challenge
that, they could easily have sought the transcript
of the proceedings
at the Magistrate's Court to see whether on that day the plaintiff
and Ndimande had said this to the Magistrate.
First it was Ndimande
who gave this evidence and it was not challenged and when the
plaintiff gave his evidence, he also said the
same thing and again it
was not challenged. They said that the Magistrate said to them
Inspector Gordon would not do anything to
them and effectively forced
them to go with him. He might not have assaulted them after that or
ill-treated them in any way after
that.
[29]
I must refer to another aspect of the case which I should have
referred to earlier on. That is that Ndimande also testified
that
Inspector Gordon tried to get him to agree to be a state witness
against the plaintiff, and promised him that he would be
free if he
agreed to that. Of course Ndimande did not agree and Ndimande did
disclose this to Senior Magistrate Visagie as well
when he appeared
before her in her office.
[30]
When all the evidence is taken into account in its totality, one
finds that the two parties in this case have very different
versions
as to what happened.
On
Mr Ndimande's version he and Inspector Gordon had a very bad
relationship from the start because Inspector Gordon who wanted
him
to confess to something he had not done and wanted him to implicate
himself and the plaintiff in something that neither of
them had done,
and because he resisted doing what Inspector Gordon wanted him to do,
Inspector Gordon assaulted him repeatedly.
On Mr Ndimande's version,
ultimately because of the assaults Ndimande tried to soften his
stance, but, at the first opportunity
he got to report to somebody
who was independent of the South African Police, that he had been
assaulted, he did so. That is the
one picture. The other picture is
the picture that Inspector Gordon sought to paint, namely, that he
and Ndimande had a very good
relationship from the start because,
when he interviewed Ndimande in his office, Ndimande voluntarily and
freely implicated himself
and the plaintiff in the murder of Ms
Alberts without any assault, without any pressure and without any
promises. Inspector Gordon
could not explain how come, if that was
true, Mr Ndimande reported all the things that he reported to Senior
Magistrate Visagie
because, if one takes the picture that emerges
from the evidence of Ndimande, then his behaviour in reporting the
assaults on him
to Senior Magistrate Visagie is logical, because,
before that, he could not report to anybody, since everybody that he
came in
contact with other than his co-suspect, the plaintiff, was a
member of the South African Police Service. In this regard Mr
Ndimande
had been asked why he did not tell Colonel Eksteen that he
had been assaulted, but the fact of the matter is that Colonel
Eksteen
was part of the South African Police Service.
[31]
There were photographs that were also put up and it was contended
that mostly they did not show any injuries, on Mr Ndimande.
In this
regard I refer to the fact that in the report or statement prepared
by Senior Magistrate Visagie, some kind of injuries
on Mr Ndimande
were referred to. Even if most of the injuries were not shown, the
fact of the matter is that the manner in which
Mr Ndimande was
assaulted was a manner which would not make it easy for him to have
visible injuries. Obviously, any police officer
knows that, if he
assaults a suspect in a certain way as a result of which there are
visible injuries, that suspect may have proof
of the assault, but a
suspect who is assaulted in such a manner that there are no visible
injuries will find that he or she is
confronted with the contention
that there were no visible injuries and therefore it is highly
unlikely that he or she was assaulted.
[32]
When the plaintiff gave evidence, he also indicated that he was
assaulted by Inspector Gordon, but I do not propose to go into
any
detail about his evidence about being assaulted, because there is no
claim for damages for assault on him, and the assault
on him does not
have much of a bearing on the issue whether or not the information
that the police had when they arrested him which
they say they got
from Mr Ndimande, provided them with reasonable grounds for the
suspicion that he had been involved in the commission
of a schedule 1
offence, namely the murder of Ms Alberts.
On
a balance of probabilities I am satisfied that Mr Ndimande's version
with regard to his evidence that he was assaulted in Inspector
Gordon's office by Inspector Gordon and other colleagues of his, is
the version that must be preferred between the two versions,
and the
matter must be decided on the basis that, indeed, Inspector Gordon
did assault Ndimande in that office and there are other
colleagues of
Inspector Gordon who assaulted Mr Ndimande, and that Inspector
Gordon's denial of that evidence must be rejected.
[33]
This leads to the question: what is the effect of this conclusion on
whether or not the police had a reasonable suspicion as
required by
section 40(1)
of the
Criminal Procedure Act. Two
matters need to be
emphasised in this regard. First, when one looks at the evidence
given by Mr Ndimande about the interactions
that he had with
Inspector Gordon at Inspector Gordon's office, and one must remember
here that one must leave out the pointing
out that was done later, it
does not appear that there is much that Mr Ndimande gave to Inspector
Gordon to implicate either himself
or the plaintiff. In this regard I
particularly want to point out that I have looked very carefully at
the evidence that was given
by Mr Ndimande and
I
looked very carefully at what was put to him by counsel for the
defendant. In this regard I want to state that a lot of the evidence
that was subsequently given by Inspector Gordon and Inspector Nel was
not put to Ndimande, and as I have indicated, it cannot be
used
against him when he was never given a chance to comment upon it or
explain it or defend himself. Accordingly, the conclusion
is that
there was not much on the information that Mr Ndimande gave Inspector
Gordon which implicated Mr Ndimande or the plaintiff,
or both, but
even if there was, the fact of the matter is that such information
was obtained by the illegal use of force or violence
by a police
officer against a suspect who was defenceless and had his hands
handcuffed at the back, and that information could
not justify the
conclusion or suspicion that the plaintiff had committed the murder
of Ms Alberts. The DNA results did not implicate
the plaintiff and
Ndimande and there was no evidence whatsoever that the police
obtained against the plaintiff and the defendant
If the position is
that Mr Ndimande did actually implicate the plaintiff or the
plaintiff and himself in the murder of Ms Alberts,
it can only be
that he gave that information because it was clear that the assault
would not stop unless he gave Inspector Gordon
information that would
implicate the two of them and under those circumstances the police
could not have acted, or cannot be said
to have had reasonable
grounds for the suspicion that the plaintiff had committed the murder
of Mrs Alberts where, as a result
illegal assault by the police on
somebody, that person ends up giving information to the police that
is false, and he gives such
information so as to save his life, or
save himself from beatings by the police. When the person who is
beating a suspect in those
circumstances acts on the information
given by such a person under those circumstances, he knows that that
information may have
been given simply to ensure that the assaults
stopped, and it can't be said that he has reasonable grounds for that
suspicion in
those circumstances. That being the case, it seems to me
that the requirements of
section 4
(1) of the
Criminal Procedure Act
1977
, were not met and that, therefore, the arrest of the plaintiff
was unlawful.
[34]
With regard to the claim for damages arising out of detention,
counsel for the defendant said that the matter must be approached
on
the basis that there are two periods involved with regard to the
detention of the plaintiff and Ndimande. That is the period
prior to
their appearance before court and the period after the appearance
before court. He said that with regard to the period
prior to their
appearance in court, if the arrest was unlawful, then the detention
was also unlawful if there were no reasonable
grounds for the
suspicion. He submitted that with regard to the period after their
appearance in court, the lawfulness or otherwise
of that detention
depended on the fact that their further detention after that was
based on an order of the Magistrate's Court
refusing them bail and
remanding them in custody. He submitted that that detention was
lawful by reason of the fact that it was
authorised by an order of
court.
[35]
Counsel for the plaintiffs approach was that, if the arrest was
unlawful, then the entire detention was also unlawful. I am
inclined
to agree with counsel for the defendant that a distinction does need
to be made, because one cannot pretend that, after
the Magistrate's
Court had refused bail, their detention after that date was not
because of the order of the Magistrate's Court.
It may well be that,
if the plaintiff had pleaded his case differently, namely that he had
not relied on the actual detention,
but had relied on the opposition
of the bail application by the police, and had contended that he
suffered damages, because the
police had chosen to insist that they
should not be given bail, irrespective of what the court decided, it
may well be that there
may have had a case, but I speculate now. The
fact of the matter is that there is an order that was made by the
Magistrate's Court.
That order was not appealed against, nor was it
subjected to a review and that order stood right throughout until the
matter was
finalised by way of the withdrawal of the charges. That
order governed their detention after their appearance in court
In
those circumstances, therefore, I am of the opinion that in respect
of the period from the 25th August 2004 to the date when
they
appeared in court for the first time, that detention was unlawful,
because the arrest was unlawful, but with regard to the
detention
from the date that they appeared for the first time in the
Magistrate's Court to the time that they were released, I
am of the
opinion that it has not been shown that that detention was unlawful,
because the order of the Magistrate's Court has
not been attacked in
any way, and it is that order that governed their continued
detention.
[36]
The conclusion that I have reached as outlined above has the result
that the plaintiff has not been 100% successful, and it
may well be
that it cannot be said that he has been substantially successful
either, if one has regard to the fact that in relation
to the
detention period after the first date of appearance in court, I have
held that that detention was not unlawful. This affects
the issue of
the quantum of damages as well as the issue of costs. The parties'
counsel did not get an opportunity to address me
on the issue of
costs in this kind of scenario. I believe that it is a scenario that
is very different from what they may have
had in mind when the matter
was argued earlier. They both had argued the matter on the basis, I
think, that it would be clear which
party was substantially
successful if we did not have a situation where one party was 100%
successful.
[37]
In those circumstances before I can make any decision on the issue of
costs, I would like to give counsel on both sides an
opportunity to
make submissions as to whether this conclusion that I have reached
means that the plaintiff has been substantially
successful or not, or
whether it is the defendant who has been substantially successful. I
say this at this stage, before I say
anything about the issue of
quantum, because I thought that if I am going to invite counsel to
submit supplementary heads addressing
this issue of costs, I may as
well give the parties an opportunity in the light of this conclusion
to try and see whether they
cannot reach an agreement on the issue of
the quantum of damages. It seems to me that the conclusion I have
reached may well make
it very easy for the parties to reach an
agreement on the quantum of damages for unlawful arrest and detention
prior to the first
day of appearance in court.
[38]
The order that I am going to make, therefore, is the following:
1.
It is hereby declared that the arrest of the plaintiff by the South
African Police on or about 25 August 2004 was unlawful.
2.The
detention of the plaintiff by the South African police from 25 August
2004 to the first date of appearance in court was unlawful.
3.
The plaintiff's claim for damages for unlawful detention from the
date of his first appearance in court in August 2004 to his
release
in August 2005 is dismissed.
4.
The plaintiff is entitled to such damages for unlawful arrest and
detention between the 25th August 2004 and the first date of
appearance in court as maybe agreed upon between the parties or as
may be decided by this court if the parties are not able to
reach
agreement.
5.
Should the parties not reach an agreement on the quantum of damages
within the next 20 calendar days from Monday, 20th June,
2011 the
parties may approach the court with a request that I determine the
quantum.
6.
Both parties are invited to submit written argument on the issue of
costs in the light of the limited success of the plaintiff
with
special reference to the question whether or not it can be said that
the plaintiff has been substantially successful, and
in this regard
the plaintiff must deliver and serve written argument on the issue of
cost, within 14 calendar days from Monday,
20th June 2011, and the
defendant must deliver its written argument within seven days
thereafter.
ON
BEHALF OF THE PLAINTIFF: MR BRENDON GEACH SC & MR SEIMA
INSTRUCTED
BY: A.P. PHEFADU INC, PRETORIA
ON
BEHALF OF THE DEFENDANT: K M MOKOTEDI
INSTRUCTED
BY:THE STATE ATTORNEY, PRETORIA
DATE
OF HEARING: 11 FEBRUARY 2011
DATE
OF JUDGMENT: 17 JUNE 2011