Garces v Minister of Safety and Security and Another (1360/2007) [2009] ZAFSHC 75 (5 March 2009)

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[2009] ZAFSHC 75
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Garces v Minister of Safety and Security and Another (1360/2007) [2009] ZAFSHC 75 (5 March 2009)

IN
THE
HIGH COURT OF SOUTH AFRICA
(ORAN
GE
FREE STATE PROVINCIAL DIVISION)
Case
No
.
: 1360/2007
In
matter
between:
JOSE
M
ANUEL
SANTOS PASTANA GARCES
Plaintiff
and
THE
MINISTER OF SAFETY AND SECURITY
1
ST
Defendant
J
OSHUA
SELLO SEFATSA
2
ND
Defendant
HEARD
ON
:
18
- 21 November 2008
JUDGMENT
BY
:
C.J.
MUSI, J
_____________________________________________________
DELIVERED
ON
:
5
March 2009
[1]
This
is a claim for damages. The plaintiff Mr Jose Manuel Santos Pestana
Garces, alleges that he was unlawfully arrested, assaulted,
detained
and defamed by Inspector Joshua Sello Sefatsa (the second defendant)
at all relevant times, an employee of the first defendant.
It is not
in dispute that the second defendant acted in the course and scope of
his employment.
[2] The
plaintiff testified that on 15 October 2006 he was at his business
premises, Three Rivers Multi Market, at Bethlehem. At
approximately
06H00,
a male person bought 6 bags of medium size potatoes from him. A few
hours later, a boy entered the shop and complained that
he bought
medium potatoes but was given small ones. He requested a swop. The
plaintiff obliged. Approximately one hour later
the same boy entered
the shop with an elderly lady. They had four bags of small potatoes
and requested that those bags be swopped
for medium sized potatoes.
The plaintiff demurred and told them that the price difference
between small and medium potatoes is
R2.00 a bag. He informed them
that he would swop the potatoes if he was paid R2.00 extra per bag.
The lady and the boy left the
shop.
[3] They
later returned with the second defendant and his colleague, Inspector
Nhlapo. The police officers did not introduce themselves.
They were
wearing police uniform. The lady again asked for a swop and he
reiterated that she should pay R2.00 per bag extra.
The second
defendant started speaking loud saying “there is law in this land
and people can’t do as they wish”. The second
defendant became
unruly. He requested him (second defendant) to stop making noise and
leave the shop. He did not listen. Plaintiff
moved towards the
storeroom. The second defendant followed him, held him by his arm
and told him that he is under arrest for resisting
authority. He
held unto a door handle and the second defendant pulled him loose and
dragged him to the police van. He lost a
shoe in the process. At
the police van the second defendant threw him into the bakkie. His
legs hanged out whilst his torso was
already in the bakkie. The
second defendant took his legs and threw it in the bakkie saying “get
inside you dog”. Second
defendant closed the door. There was a
man and a woman in the back of the police van. The second defendant
then drove away and
returned to collect Nhlapo. On his return at the
shop he said to Nhlapo “get in the car leave those dogs”.
Nhlapo, the lady
and boy got into the front of the police van.
[4] The second defendant
drove to the Zenex filling station and bought petrol. He then called
the petrol attendants and members
of the public nearer and said to
them “come and see the monkey that I have arrested today and I am
going back to arrest the other
one”.
[5] He
was then taken to Bohlokong police Station. Whilst he took his
property from his pockets a police officer noticed that he
had a lot
of money in his possession and commented that if he has so much money
why didn’t he give the customers the potatoes
or their money. He
told him that the money does not belong to the business. He was put
in a cell with 26 other persons. He was
held from 12H30 until 17H30.
Although he felt the pain on his legs he did not check what the
source of the pain was. The next
day he went to court where he was
told that the case ha
d
been withdrawn. The afternoon he consulted doctor Van Schalkwyk who
treated the injuries that he sustained.
[6] He testified that
this incident has affected his physical and mental health. His blood
pressure is high and he also consulted
a psychologist on two
occasions. He does not know how much he paid for the medical and
psychological interventions.
[7] Nicolette
Becker testified that she is employed at the Three Rivers Multi
Market since July 2005 as a cashier. She was in the
shop when the
police entered with a lady and a child. They approached the
plaintiff. She heard the plaintiff and the second defendant
talking
loudly to each other. Nobody was pushed or pulled. She heard the
second defendant screaming but can’t remember what
he said. She
heard the plaintiff telling the police officers to leave the shop.
[8] The
plaintiff walked towards the storeroom. The second defendant
followed him and told him that he is under arrest. The plaintiff

asked why he is placed under arrest but the second defendant did not
tell him. The plaintiff was pulled to the police van. He
sat at the
edge of the police van’s door, the second defendant took his legs
and put them in the van. The second defendant drove
away and
returned to fetch his colleague, who was talking to the co-owner of
the shop. Second defendant then said that this is
his country and he
can do as he pleases.
[9] She
also testified that the plaintiff who was outgoing is now reserved.
[10] Mr
Barend Petrus van der Merwe testified that on 15 October 2005 he was
at Three Rivers Multi Market, where he works as a car
guard. On
arrival at the shop he saw how the second defendant was pulling the
plaintiff to the police van. The second defendant
opened the police
van and knocked the plaintiff in the van. The plaintiff bumped his
head and fell backwards at the door of the
van. The second defendant
then took his legs and threw it into the police van. Second defendant
closed the police van’s door,
whereafter he took a walk. On his
return he requested the lady and the boy to get into the police van.
He drove away and returned.
On his return, he spoke in Sesotho. He
then said in Afrikaans that this is the new South Africa; this is
“their” or “our”
land.
[11] Dr Eben Herman Van
Schalkwyk is a qualified medical practitioner, for the past 44 years.
He confirmed that the plaintiff has
problems with his varicose
veins. His skin, on his legs, was of a very bad quality.
[12] On 16 October 2006
he examined the plaintiff. He saw that the plaintiff presented
injuries on both his ankles. He also had
a bruise on his left hip.
He was very tense. He prescribed bandages and antibiotic cream. He
saw the plaintiff a few times thereafter
and the wounds responded
well to treatment.
[13] He
also referred the plaintiff to a clinical psychologist due to what he
diagnosed as post traumatic stress disorder. He also
noted that the
plaintiff has undergone a personality change after the incident. The
plaintiff has physically healed 100% but not
psychologically.
[14] Inspector
Sello Joshua Sefatsa, the second defendant confirmed that on 15
October 2006 he was on duty. He testified that he
and Nhlapo found
the lady (complainant) and her son at the charge office. The
complainant told them that she sent her child to
the plaintiff’s
business to buy medium potatoes but that he was given small potatoes.
[15] They went to the
plaintiff’s shop. At the shop the child pointed out the plaintiff
as the person from whom he bought the
potatoes. He tried to explain
the reason for their presence to the plaintiff. The plaintiff raised
his voice and was unco-operative.
He explained to the plaintiff that
they came in connection with the potatoes and the plaintiff said he
does not want to talk to
Bamboos. He understood this to be
insultative and referring to him as a baboon.
[16] The
plaintiff requested them to leave his business premises. The
plaintiff then pushed him on his chest with both hands.
He informed
him that he is arresting him for assault on a police officer. The
plaintiff ran towards the storeroom and held unto
the doorframe. He
again informed him that he is under arrest and explained his rights
to him. The plaintiff tried to get into
the storeroom. He explained
to him that he is resisting arrest, which is a second offence.
[17] He forcefully
loosened the plaintiff’s grip and forcefully, whilst he was
resisting, removed him to the police van. At the
police van he
requested him to get in, but he refused. He used force to get him
into the police van. After he closed the police
van the plaintiff
kicked the door whilst shouting open the door, open the door.
[18] Nhlapo
was talking to the co-owner of the shop and he called Nhlapo. Nhlapo
got in and they drove to Bohlokong police station,
where the
plaintiff’s rights were explained. Inspector Dlamini asked the
plaintiff whether he had any injuries and he said no.
Inspector
Dlamini then asked the plaintiff about his money because he had
approximately R5000.00. Dlamini asked him whether all
the money was
his and he said yes. The plaintiff had shoes on.
[19] He denied swearing
at the plaintiff. He also denied stopping at the Zenex filling
station.
[20] Nhlapo
confirmed that he was at the plaintiff’s shop with the second
defendant, after a complaint relating to potatoes.
Before they could
properly explain the reason for their visit the plaintiff
gestigulated that he does not want to talk to them.
He went to speak
to the co-owner of the shop whilst the second defendant went to the
plaintiff. It was clear that the plaintiff
was angry and talking
loud. The second defendant moved towards him saying Sir listen. The
plaintiff then pushed the second defendant
and ran towards the
storeroom. The second defendant followed him and held him so that he
could not enter the storeroom. The second
defendant then told him
that he is under arrest for assaulting a police officer and for
obstructing the police in the execution
of their duties. The
plaintiff said he will not be arrested by nincompoops or baboons or
words to that effect.
[21] At
the storeroom’s door the second defendant forcefully loosened the
plaintiff’s hold and pushed him to the police van.
At the police
van, the plaintiff did not want to enter and he was holding unto the
frame of the door looking inside the van.
The second defendant
removed his hands and put him in the van. His torso was in the van
and the second defendant put his feet,
which were hanging out, in the
van. The plaintiff had shoes on at that stage. After the door was
closed, the plaintiff kicked
the door. The second defendant called
him, he got into the police van and they drove to Bohlokong police
station.
[22] He also denied that
there were insults hurled at the plaintiff. He denied that they
stopped at the Zenex garage.
[23] At
the police station they explained to the plaintiff that the people
only wanted the right potatoes or their money back.
The second
defendant also told the plaintiff that he did not mind what the
plaintiff did to him. The plaintiff was charged with
inter
alia
assault on a police officer.
[24] It
is not in dispute that the plaintiff was arrested by the second
defendant. The second defendant alleges that the arrest
was lawful
because he acted in terms of
section 40
(1)(a) and (j) of the
Criminal
Procedure Act
51 of 1977
.
Section 40
(1)(a) and (j) reads as follows:
“
40 (1) A peace
officer may without warrant arrest
any
person-
(a) who commits or
attempts to commit any offence in his presence;…
(j) who wilfully obstructs him in the
execution of his duty…”
[25] The
onus of establishing that the offence was committed in his presence
rests upon the second defendant. Likewise the defendants
bears the
onus of proving that the arrest was justified in law. See
Minister
of Law and Order v Hurley and Another
1986 (3) 568 AD at 589 D – G.
Brand
v Minister of Justice and Another
1959 (4) SA 712
at 714 F – H.
[26] Mr
Jordaan SC on behalf of the plaintiff argued that the issue of the
potatoes, which led to the police going to the plaintiff’s
business
was a civil issue and the police had no business to investigate it.
I don’t agree with Mr Jordaan. The police, as
the second defendant
testified, have a duty to prevent crime. In
Minister
Van Polisie v Ewels
1975 (3) SA 590
(A) at 597 G –H it was said:
“
Wat misdaad
betref, is die polisieman nie met afskrikker of opspoorder nie, maar
ook beskermer.”
All
members of the SAPS are required to sign a code of conduct. See
Government
Gazette
No. 27642 of 10 June 2005. In terms of the said code of conduct, a
replica of which was handed in as exhibit C, all members of
the SAPS
must commit themself:
“
to creating a safe and secure
environment for all the people in South Africa by –
(a) participating in endeavours aimed
at addressing crime;
(b) preventing all acts which may
threat the safety or security of any community and
(c) investigating criminal conduct
which endangers the safety or security of the community and bringing
the perpetrators to justice…”
In
terms of section 205 (3) of the
Constitution
of the Republic of South Africa
108 of 1996 the objects of the police service are:
“
to prevent, combat and investigate
crime, to maintain public order, to protect and secure the
inhabitants of the Republic and their
property, and to uphold and
enforce the law.”
[27] In
casu
the second defendant received information from the complainant that
they paid for medium size potatoes and were given small size

potatoes. They went to the plaintiff’s shop to investigate the
complaint with a view of attempting to solve the problem in order
to
prevent it from ballooning into crime and secondly because the
revelations made by the complainant, properly construed, revealed

that she or her son was defrauded the difference between the medium
and small potatoes. Although nothing much turns on this point
it is
clear that the police went to the plaintiff’s shop for a valid
reason.
[28] The
evidence in relation to what happened inside the shop and thereafter
is riddled with contradictions and is mutually destructive.
[29] The
plaintiff did not impress me as a reliable witness. According to him
the second defendant created unrest in his shop.
He asked the second
defendant to leave the shop. Whilst he was walking towards the back
of the shop the second defendant grabbed
him and told him that he was
under arrest. This is improbable. Something must have happended for
the second defendant to arrest
the plaintiff. In his statement dated
2 November 2006 the plaintiff stated that:
“
Before I could
say anything one (policemen) became very loud and aggressive and at
the top of his voice shouted at me about not
changing (the) potatoes.
In English he screamed and said I must go back to my country and
said “This country has laws.”
There
was no way that I could speak to him or give any response. He,
without any provocation, pushed me with both his hands on
the chest
and I almost tripped and fell.”
His evidence in court
however was that he told the police officers that if the complainant
pays the extra R2.00 he will swop the
small potatoes for medium size
potatoes. He even showed the police where the medium size potatoes
were packed. At no stage did
he testify that the second defendant
pushed him with both his hands on his chest.
[30] The
plaintiff was clearly not forthcoming with evidence as to what
precipitated his arrest. According to the second defendant,
it is
the assault on him that precipitated the arrest. Nicolette Becker
did not see anyone pushing another. Ms Becker testified
that the
plaintiff asked the second defendant why is he arresting him but he
received no reply. This is in line with what the
plaintiff stated in
his aforementioned statement. The plaintiff however testified that
the second defendant informed him,
albeit
whilst dragging him, that he is under arrest for “resisting
authority”.
[31] The
plaintiff testified that the second defendant threw him in the police
van and shouted “get inside you dog.” In his
statement he stated
that “the policemen in
the loudest of words shouted “in you go, you dog.” I do not have
a problem with the fact that the plaintiff did not recall
the exact
words used. What I find strange is that neither Ms Becker nor Mr van
der Merwe heard the second defendant calling the
plaintiff a dog or
words to that effect.
[32] Likewise
the plaintiff testified that the second defendant said to his
colleague “get in the car leave these dogs.” In
his statement he
stated that the second defendant “shouted at his partner in the
shop “lets go, lets go leave the dogs behind;
and after driving of
he returned and in the same loud and shouting voice he told the
partner that there was nothing to listern
to or to discuss with
“those dogs” and that he should come.
Again,
neither Ms Becker nor Mr van der Merwe heard the second defendant
shouting those words or any words to that effect. If
those words
were used one would have expected Ms Becker and/or Mr van der Merwe
to have testified about it. Ms Becker testified
that the second
defendant called his partner and said this is his country and he can
do as he pleases. Mr van der Merwe on the
other hand heard him say
in Afrikaans this is the new South Africa and it is our country.
[33] It
is clear to me that the plaintiff is embellishing his evidence in
relation to the swearing incidents. There was just no
swearing. His
evidence in relation to what happened at the Zenex filling station is
not corroborated. Both the second defendant
and his colleague deny
the incident. I find it improbable that the second defendant would
specifically drive to the filling station
just to show the petrol
attendants and members of the public that he had arrested the
plaintiff. The arrest at the shop was done
in public. Members of
the public saw the second defendant arresting the plaintiff. There
would be no need for him to go and boast
about the arrest at the
filling station. In my view, this is another attempt by the
plaintiff to embellish his evidence.
[34] I find it strange
that the plaintiff did not call any of the petrol attendants who were
on duty to corroborate his version.
[35] The plaintiff’s
version in relation to the two other detained people who were in the
back of the police van is also not corroborated
by any of the
witnesses who testified on his behalf nor is it corroborated by any
or the witnesses that testified on behalf of
the defendants.
[36] It is clear that the
plaintiff’s evidence is unreliable. I reject his evidence.
[37] Ms
Becker tried her best to give a coherent account of what happened
there. She was busy with her duties and could not see
everything
that transpired there. She could not hear what the second defendant
said in the shop. Her evidence is that he spoke
loudly but she could
not hear what he said because she was busy with customers. However,
she says categorically that no one pushed
or pulled (“stamp or
ruk”) another. This cannot be, because the plaintiff stated that
the second defendant pushed him whilst
the second defendant said the
plaintiff pushed him. Because Ms Becker was busy and did not take
proper notice of what was happening
there, it would be risky to
decide this matter on her evidence. Her evidence in relation to what
precipitated the arrest is in
any event vague and contradicts the
plaintiff’s evidence. Her evidence is that the plaintiff moved
towards the storeroom. The
second defendant followed him. The
plaintiff stood and was busy with something when the second defendant
told him that he is under
arrest. The plaintiff testified that he
was grabbed whilst walking to the back. I also find it strange that
she heard everything
that the plaintiff said but could not hear
anything that the second defendant, who according to her was speaking
loudly, said.
[38] Mr
van der Merwe’s evidence does not take the matter any further. He
was not in the shop when the arrest was effected.
His evidence is in any event of a very poor quality. Mr Jordaan
conceded this in argument.
[39] The
second defendant was not the best of witnesses either. He was
rightfully criticized by Mr Jordaan as being a shrewd witness.
He
evaded some questions. He continually repeated questions before
answering them. He was vague in relation to the information
they
received from the complainant before going to the shop. Despite all
these deficiancies in his evidence, his evidence is in
sync with the
probabilities in relation to what precipitated the plaintiff’s
arrest. His evidence that the plaintiff pushed
him is corroborated
by his colleague. He would in any event have had no legal reason to
effect an arrest if nothing happend between
him and the plaintiff.
It is clear from inspector Nhlapo’s evidence that the second
defendant tried to speak to the plaintiff
but the plaintiff did not
want to engage him. He (Nhlapo) went to speak to the co-owner of the
shop whilst seeing and hearing
what is happening between the
plaintiff and the second defendant.
[40] Nhlapo
and the second defendant testified that the plaintiff insulted them.
Exactly when this happened is not clear because
according to the
second defendant the plaintiff said he does not want to talk to
baboons whereas Nhlapo testified that the plaintiff
said he will not
be arrested by Bambuse or nincompoops or words to that effect.
According to both the second defendant and Nhlapo
the plaintiff only
ran towards the storeroom after he pushed the second defendant.
Nhlapo and second defendant corroborated each
other in all material
respects. Nhlapo was a very frank and forthright witness. His
evidence was also not criticized by Mr Jordaan.
Mr Motloung on
behalf of the defendants also pointed out that Nhlapo was a good
witness. He further stressed that the second
defendant would not
have said to the plaintiff that he (plaintiff) is crossing the line
if the plaintiff did nothing. I accept
the version of the second
defendant and Nhlapo. I accept that the plaintiff pushed the second
defendant and that, that action
precipitated the arrest. The
question is whether the arrest was lawful.
[41] The
second defendant relies on section 40 (1)(a) and (j) of the
Criminal
Procedure Act
,
51 of 1977 for the lawfulness of the arrest. It is common cause that
the second defendant is a peace officer and that the plaintiff
was
arrested without a warrant.
[42] What
has to be determined is whether an offence was committed in the
presence of the second defendant. The onus, as stated
above rests on
the defendants to show that the arrest was lawful. They bear the
onus to show that the jusrisdictional facts contained
in
section 40
(1)(a) and (j) of Act 51 of 1977 were present. In
Minister
of Law and Order v Dempsey
1988 (3) SA 19
(AD) at 38 B – D Hefer JA said the following in this
regard:
“
I accept, of
course, that the onus to justify an arrest can only be justified on
the basis of statutory authority, that the onus
can only be
discharged by showing that it was made within the ambit of the
relevant statute. Any statutory
function can, after all, only be validly performed within the limits
prescribed by the statute itself and, where a fact or state
of
affairs is prescribed as a precondition to the performance of the
function (so called jurisdictional fact), that fact or state
of
affairs must obviously exist and be shown to have existed before it
can be said that the function was validly perfomed.”
[43] In
this matter the pushing of the second defendant led to his arrest.
Mr Jordaan did not dispute that such pushing constituted
an assault.
He however argued that there was no need to arrest the plaintiff
because he was a known businessman in Bethlehem and
less intrusive
means other than arrest could have been used. This is true but does
it make the arrest unlawful? In my view it
does not. The enabling
statute prescribes that he second defendant may without warrant
arrest a person that commits an offence
in his presence. The offence
in
casu
was committed in the second defendant’s presence. He had the right
to arrest the plaintiff without a warrant. Moreover the
plaintiff
was released on the same day and warned to appear in Court the next
day. Was it necessary for the second defendant to
use force to
effect the arrest?
Section 49 (2) of Act 51
of 1977 provides that:
“
If any arrestor
attempts to arrest a suspect and the suspect resists the attempt, or
flees, or resists the attempt and flew, when
it is clear that an
attempt to arrest him or her is being made, and the suspect cannot be
arrested without the use of force, the
arrestor may, in order to
effect the arrest, use such force as may be reasonably necessary and
proportional
in
the circumstances to overcome the resistance or to prevent the
suspect from fleeing…”
Section 39 (1) reads as
follows:
“
An arrest shall be effected with or
without a warrant, and unless the person to be arrested submits to
custody, by actually touching
his body or, if the circumstances so
require, by forcibly confining the body…
[44] It
has repeatedly been said that the purpose of an arrest is to ensure
that the suspect is taken to Court to answer to the
charge or
charges. See
Kruger:
Hiemstra’s Criminal Procedure Lexis Nexis
2008 at 5 – 20 to 5 – 21 [issue 1].
[45] It
is not in dispute in this matter that the plaintiff resisted arrest.
On the plaintiff’s version because he did not know
why he is being
arrested. On the defendant’s version because he deliberately did
not want to cooperate with the police. The
police were entitled to
use reasonable and proportional force to effect the arrest. What is
reasonable and proportional force
will depend on the facts and
circumstances of each particular case.
[46] In
this case it has not been argued that the force that was used was
unreasonable or disproportionate. If one has regard to
the totality
of the evidence and the prevailing circumstances in the shop, I can’t
find that the force used was disproportional
or unreasonable. The
plaintiff resisted arrest. The second defendant loosened his grip
from the doorframe or handle. The plaintiff
did not want to walk
voluntarily to the police vehicle. The second defendant took him by
force and in the process dragged him
to the police vehicle. The
plaintiff has a sensitive skin and a pre existing condition. The
injuries that he sustained is not
indicative of the amount of force
used. In my view the force used was in the circumstances reasonable
and proportional.
[47] It is my considered
opinion that the claim ought not to succeed.
[48] The defendants were
successful in defending the claim. There is no reason why a costs
order in their favour should not be
made.
[49]
I
accordingly make the following order.
The claim is
dismissed with costs.
____________
C.J.
MUSI, J
On
behalf of the Plaintiff
: Adv.
A.F. Jordaan SC
Instructed
by:
Honey
Attorneys
BLOEMFONTEIN
On
behalf of the Defendant
: Adv.
S.E. Motloung
Instructed
by:
State
Attorney
BLOEMFONTEIN
/ms