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2024
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[2024] ZAECMHC 94
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Ncele v Minister of Police (3908/2019) [2024] ZAECMHC 94 (26 November 2024)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE DIVISION
– MTHATHA)
CASE NO.:
3908/2019
Date
of hearing :
6 September 2024
Date
delivered : 26 November 2024
In the matter between:
SALVADO
NCELE
Plaintiff
And
MINISTER
OF
POLICE
Defendant
_
JUDGMENT
MAJIKI ADJP
[1]
The plaintiff sued the defendant for damages he allegedly suffered
because of his
arrest and assault by members of the South African
Police services (SAPS). His action is based on vicarious liability,
the defendant
is the person who is responsible for the actions
committed and or omissions by the members of SAPS, within the course
and during
the scope of their employment. The action is defended by
the defendant.
[2]
At the commencement of the trial the parties successfully moved an
application in
terms of section 33(4) of the Uniform Rules for the
separation of issues. Only the issue of merits requires determination
at this
stage.
[3]
Between the years 2016 and 2020 the plaintiff was a branch manager of
Boxer superstores
(Boxer) in Willowvale. It is common cause that on
20 April 2019 he reported a business robbery. A case was opened under
CAS 55/04/19.
After he interacted with the police officers about the
CCTV footage and had made his statement, on 3 May 2019, around 13h00
to
14h00 police officers arrived at his workplace. He was taken to
the local police station for questioning.
[4]
From then on, the parties’ versions differ as to what
transpired until the time
the plaintiff parted with the police.
Before delving into their evidence regard must be had to the
pleadings.
[5]
In his particulars of claim regarding the arrest the plaintiff
averred:
8
The said police
officers then took plaintiff to Msobomvu Police Station where he was
further interrogated and subsequently released
at about 20h00 without
being charged.
9
Plaintiff’s
arrest and subsequent detention was malicious, wrongful and unlawful
in that:
9.1 there was no
reasonable or probable cause that Plaintiff had committed the said
offence;
9.2 there was no
evidence linking Plaintiff to the commission of the offence for which
he was arrested and detained.
12
Plaintiff’s
malicious, wrongful and unlawful arrest and detention and/or
malicious deprivation of liberty aforesaid:
12.1 constituted an
intentional interference and justifiable infliction of restraint upon
the Plaintiff’s personal liberty;
12.2 was insulting and
injurious to the Plaintiff;
12.3 impaired the
integrity, dignity and self-esteem of the Plaintiff;
12.4 caused Plaintiff
to be aggrieved, embarrassed and humiliated.’
[6]
Regarding the assault, the plaintiff averred that he was unlawfully
and wrongfully
assaulted with fists, booted feet, injured by
tightening of cable ties, tortured and suffocated with plastic bag by
members of
SAPS, amongst whom were Mr Mgudlwa and Lt Cl Gcasamba.
[7]
The defendant’s pleaded version is that the plaintiff was
called to the police
station for questioning about his knowledge or
involvement in the housebreaking that had taken place at Boxer.
Further the defendant
denies knowledge of a police official named
Mgudlwa at Willowvale police station. The defendant confirms that
that Lieutenant Colonel
Gcasamba (Lt Cl Gcasamba) works at that
police station but denies that he had anything to do with the matter.
[8]
During the hearing only the plaintiff and Lt Cl Gcasamba testified in
the parties’
cases respectively. The plaintiff testified that
his initial statement was made to a police officer, Mr Mgudlwa. On
the day of
his arrest Lt Cl Gcasamba declined his invitation to meet
him in his office and said they needed to go to the police station.
When
he stepped out of the building, he saw a marked police combi
with open doors. The occupants in police uniform were taking
positions
around the shopping complex. He was driven in a Toyota
Atios sedan (Atios), sitting with one police officer at the back, the
other
two police officers sat at the front. Their motor vehicle was
escorted by the police marked combi. All police officers came in with
him to the one office at the police station.
[9]
After Lt Cl Gcasamba introduced himself, he was shocked to hear him
saying that according
to the information they had, the plaintiff was
involved in the robbery. He denied his involvement, Lt Cl Gcasamba
took his phone
and said they had no choice but to take him to
Msobomvu police station. He was accompanied to take his motor vehicle
from work
and park it at his rented home. When they went back to
Boxer, the staff members were all present, Lt Cl Gcasamba said he
should
not do any foolish act. He was escorted by the police to his
place of residence, some surrounded the yard. His neighbours looked
on. He was taken back in the Atios and sat in between Lt Cl Gcasamba
and another police officer at the back. Mr Mgudlwa was sitting
at the
front.
[10]
Police Officers travelled with him. They made a brief stop at Dutywa
police station. Whilst alone
in the car one police officer came and
told him to admit as he had already been implicated. He denied
involvement in the robbery.
After about 15 (fifteen) to 20 (twenty)
minutes, they drove to Msobomvu police station, Butterworth with him.
He was in the Atios
with three police officers and Lt Cl Gcasamba
drove alone in a greenish double cab bakkie. The marked police
combi followed.
They reached Msobomvu police station around 15h00.
[11]
According to the plaintiff he was taken to an office and Lt Cl
Gcasamba sat with him. He
told the plaintiff that, that was his
last chance to admit his involvement in the commission of the
offence. Upon his denial Lt
Cl Gcasamba looked up and told the police
officers that they knew what to do. The plaintiff from thereon
details how the police
tortured him until he was taken to the person
who was their source of information. It transpired that he
implicated his deputy
manager and not him.
[12]
The police used cable ties to tie his wrists to the back, at Lt Cl
Gcasamba’s instructions,
who said that was in order to control
emotions not to run high. The uniformed police officers took him to
another room. On the
table he saw 5 litre bottles with water. He was
told that when he was ready to tell the truth he must tap his left
foot. He
was made to lie on his back on his tied hands. His
face was covered with a big red cloth. One sat on his lap; another
held his
legs and they poured about 10 to 15 litres of water in his
nostrils. He would choke and suffocate, and when he was losing
strength,
he tapped his foot. When he told them he knew nothing, they
seemed angry and assaulted him. The one who sat on his lap hit
him with fists and hands. The one with the cloth pulled it and caused
his head to hit the tiled floor. He urinated on himself;
they said he
must go and sit on the chair. He asked them to lift him up, they
refused, he knelt and crawled using his elbows for
support to get to
the wooden chair.
[13]
He was asked to recline his head backwards with his face up. He was
poured with water on his
exposed chest. The bottles were filled
again, at that stage he counted about 5 bottles of 5 litres and 1,5
litres. He became unconscious
and was bleeding. His right eye was
closed and swollen.
[14]
They eventually stopped and asked him to stand up. He was taken back
to Lt Cl Gcasamba and the
rest of the police officers. He was so
weak, his arms had to be held as means to support him. He saw a young
man who had a hooded
top, kneeling and facing the wall. Lt Cl
Gcasamba asked that man to speak, the man said they got the
information to get to Boxer
from the assistant manager. He was not
allowed to speak by Lt Cl Gcasamba when he tried to. He was moved
back towards the room
where he was tortured. The passage they used
was narrow, it only allowed one person to hold him for support. He
said he was not
an assistant manager. The attitude immediately
changed to being polite as what he said was relayed to the rest of
the officers.
He said they should take out his name tag from the
pocket of his shirt and look at it. They did, they were quiet, left
him and
stood at a distance. He cried in anger as he realised that
they made a mistake by taking him. Lt Cl Gcasamba and others joined
in, police officers cut the cable ties. He was taken back to the
office, he was left with Lt Cl Gcasamba and the three police officers
he was with in the Atios. After a while, Lt Cl Gcasamba said they
could see he was cold and shivering, he must be taken home. He
handed
the plaintiff his phone.
[15] The plaintiff
then gave details of their travel from Butterworth to
Willowvale, with Mr Mgudlwa and another officer.
They stopped at
Dutywa spar supermarket for their purchases, against his expectation
of being taken to a healthcare centre. His
eyes were swollen, he was
cold and bleeding. Instead they proceeded to Willowvale. It was
around 20h00 when they told him
he could go, he was free. The
plaintiff could not explain how he felt than saying he was hurt,
embarrassed and hated life. He was
made to feel like he was not
human, in the hands of people who, ordinarily, should protect
him. His arrest was in view of
the shopping complex staff and
customers. The customers ' cars were parked all around the shopping
complex when he was taken to
the Atios.
[16]
At home, his girlfriend screamed upon sight of him. She told
him he had left the room and
the car unlocked. He just sobbed and
would not speak. She gave him pain tablets and applied hydrotherapy
with warm water on the
swollen parts. His writs were oozing. He would
not have been able to drive to consult, medically. He could not sleep
as well.
[17]
On the next day he consulted Dr Matolengwe who completed his medical
report J88. It was admitted
as evidence as exhibit A. The doctor
recorded the following injuries :
-
Conjectural haemorrhage right eye
-
Sub-orbital haematoma right
-
Bruises around both writs
-
Tender right temporal region
-
Tender right elbow
- Blunt
injuries
Conclusion : blunt
injuries e.g. fists, handcuffs.
He stayed at home for
seven days nursing the injuries. The photo album with 15 photos
depicting his injuries was also admitted as
exhibit B.
[18]
In cross examination he said he did not feel threatened and was not
manhandled by the police
when they walked out of Boxer with him. He
was however uncomfortable when he saw the marked police combi and
uniformed police,
as if they were following up on a lead. He could
not recall whether they were armed or not. He said he was answering
to questions
at the time Mr Mgudlwa minuted his statement. He
did not recall whether it was read back to him. He explained that on
the night of the robbery, after he was alerted by the alarm company
of the ongoing robbery, he followed the police motor vehicle
to the
shop.
[19]
He persisted that he was arrested by the police. He even complained
with IPID about his wrongful
arrest. His movements were restricted,
he could only move at the police instructions.
[20]
Lt Cl Gcasamba, was assisting as a commander at Willowvale
intelligence unit at the time
of the events, that being one of the 32
police stations falling under Amathole district. He was with
sergeant Jubase and
warrant officer Mlonyeni (now retired) at the
time. His testimony in the main, was that the plaintiff was not
arrested but was
taken for questioning as he was a complainant in the
robbery at Boxer. That was a matter of course. According to him
it was
a long time ago that he interacted with the plaintiff. He
did not know the police officer by the name of Mgudlwa.
[21]
His evidence was inconsistent regarding whether he was present at
Boxer. He first said he sent
junior members in a double cab that was
not branded. He said they had just finished eating after 2
(two) pm when the plaintiff
asked to take his car from the shopping
complex and only drove with the police from his place of residence to
the police station.
He later said he was present when the plaintiff
was taken. However, at the time the plaintiff took his car to his
place of residence,
he proceeded to the police station, the plaintiff
and other police officers found him there.
[22]
He denied that he was present at Msobomvu police station. At all
material times they were at
Willowvale police station. He said he had
no knowledge of the details of torture the plaintiff said he suffered
at Msobomvu police
station, he was not present. He never saw the
plaintiff's statement. When it was shown to him he said he could not
make out who
wrote it. He however recognized the name of commissioner
of oaths, one Kwenene.
[23]
Lt Gcasamba sat down with the plaintiff. He said he could not recall
if he was handcuffed, but the standing
rules make that provision.
When showed photos depicting injuries in the plaintiff's wrists, he
sighed and said they never tighten
their ties. They also use cable
ties some times for the safety of the police as other people do
become violent. He eventually
said the plaintiff was advised of
the reason to be handcuffed even during amicable questioning and was
handcuffed. He said he asked
the plaintiff to explain the events of
the day of the robbery, the security company, duration of that
service, history of robberies
at Boxer. That took about 7 (seven)
hours as they finished with him after 9 (nine) pm. There was nothing
noticeable when the plaintiff
left, he saw him. He was never
tortured or suffocated. He was taken back to the shop, he said he
needed to check something,
maybe in relation to the security.
[24]
He denied that the plaintiff had the injuries depicted in the photos
when he was with them. He
denied ever saying his juniors know what to
do after the plaintiff denied involvement in the robbery. He also
denied that there
was a person who gave them information about the
involvement of a deputy manager. He said they did not have
Atios during
the said mission, they never used sedan vehicles in
rural police stations. He did not recall the motor vehicle the
plaintiff was
driven in, to the police station.
[25]
In cross examination he explained that since 1995 police no longer
interrogate suspects and also
do not use force. His version also
changed regarding whether the plaintiff was handcuffed.
He said he had no
knowledge about the police becoming polite to the plaintiff after
they realized he was not the implicated person.
When asked why it
took 7 (seven) hours to question the plaintiff, he said many sections
were involved. His cellular phone had to
be checked and junior
officers take time when working. He said sergeant Jubase had taken
the plaintiff’s cellular phone,
when told it was taken by him
he said he may have done so, it was a long time ago.
[26]
He said it was not possible that there could be a complaint at IPID
because he never deposed
to a statement. He said the plaintiff
could not have driven his motor vehicle from the shopping complex if
he was under arrest.
He had no knowledge if the assistant manager was
ever questioned.
[27]
The issue to be determined is whether when the police held the
plaintiff for about seven hour
he was under arrest or not. Further,
whether they assaulted him as he alleges.
[28]
On these definitive issues, the parties versions are mutually
destructive. The principle summarised
in STELLENBOSCH FARMERS WINERY
V MARTELL ET CIE
2003 (1) SA 11
at paragraph 5, is an acceptable
standard to resolve the factual disputes in such circumstances. The
court is required to make
a finding on (a) the credibility of the
factual witnesses, (b) their reliability, and (c) the probabilities.
[29]
The court went on to explain the application of the principle as
follows:
'As to (a), the court's
finding on the credibility of a particular witness, will depend on
its impression about the veracity of
the witness. That in turn will
depend on a variety of subsidiary factors, not necessarily in order
of importance, such as (i) the
witness' candour and demeanour in the
witness box, (ii) his bias, latent and blatant, (iii) internal
contradictions in his evidence,
(iv) external contradictions with
what was pleaded or put on his behalf, or with established fact or
with his own extra crucial
statements or actions, (v) the probability
or improbability of a particular aspects of his version, (vi) the
calibre and cogency
of his performance compared to that of other
witnesses testifying about the same incident or events. As to (b), a
witness' reliability
will depend, apart from the factors mentioned
under (a) (ii) , (iv) and (v) above under on (i) opportunities he had
to experience
or observe the event in question and (ii) the quality,
integrity and independence of his recall thereof. As to (c), this
necessitates
an analysis and evaluation of the probability or
improbability of each party's version on each of the disputed issues.
In the light
of its assessment of (a), (b), and (c) the court will
then, as a final step, determine whether the party burdened with the
onus
of proof has succeeded in discharging it. The hard case, which
will doubtless be the rare one, occurs when a court's credibility
findings compel it in one direction and in its evaluation of general
probabilities in another. The more convincing the former,
the less
convincing will be the latter. But when all factors are equipoised
probabilities will prevail.'
[30]
As a starting point this court views the evidence tendered by the
plaintiff as having been clear,
coherent, detailed and spontaneous.
It was consistent with what was pleaded in the particulars of claim.
He gave honest answers
without bias, even when they were not in
favour of his case. He did not exaggerate. For example, he said
he did not feel
threatened and was not manhandled by the police
before he reached the police station. He was frank about the fact
that he did not
recall if the uniformed police were armed or
not. Also, with regard to torture he said it only occurred much
later, at Msobomvu
police station. Eventhough he could recall the
names of Mr Mgudlwa and Lt Cl Gcasamba, he was not tempted to
implicate them in
the physical torture.
[31]
The plaintiff gave gross details of the torture, of which the
paragraphs 12 and 13 above are
dedicated to. He had no difficulty in
recalling the evets, he did not appear as if he was making up facts
as afterthought. He even
became emotional and broke down, especially
when expressing his disappointment at the fact that none of the
officers extended a
word of apology after they realised what they had
done. Even with how he was transported at various times his version
was consistent.
He was certain about Atios and at what stage he was
driven in it. Unlike Lt Cl Gcasamba who said he was not certain of
what vehicle
he was driven in when transported to Willowvale police
station. He stuck with his version even during lengthy cross
examination.
His evidence was reliable and in this court's view more
probable.
[32]
Lt Cl Gcasamba's evidence in the first place was inconsistent with
the pleaded version. The defendant
had pleaded that Lt Cl Gcasamba he
was not involved in the matter. He on the other hand said, he was in
charge of the operation.
He contradicted himself as to whether he was
present at Boxer when the plaintiff was first approached and asked to
go the police
station. He was also inconsistent and less of being
evasive regarding the issue of whether the plaintiff was handcuffed.
He could
not explain the lengthy questioning, in his version, from
14h00 (fourteen) to 21h00 (twenty-one). He blamed police officers who
had taken the plaintiff's phone. He said processing the phone took
them long, however, when confronted with the fact that he had
taken
the phone, he said he may have done so. As the only witness called by
the defendant his testimony was not very helpful, he
said he could
not clearly recall the events, due to passage of time. He also
distanced himself from anything that happened at Msobomvu
police
station, saying he was not there. In the final analysis he could
profer no version about the detailed account of what the
plaintiff
said happened there. However, he said he saw the plaintiff when he
was taken home, he appeared normal with no injuries.
That is despite
the fact that Dr Matolengwe recorded injuries a few hours later, the
next morning.
[33]
Lt Cl Gcasamba appeared to be very casual and carefree, he kept on
pushing the actual interaction
with the plaintiff to junior officers.
However, none of the said officers were called, not even Mr Mgudlwa.
The defendant in the
plea had only denied that Mgudlwa was at
Willowvale police station.
[34]
This court is of the view that the plaintiff has discharged the onus
he bore to prove that the
police did arrest, detain and assault him
as alleged.
In
the result,
1. The defendant is
hereby held to be liable for all the damages the plaintiff will prove
to have suffered as a result of his arrest,
detention and assault by
the members of South African Police Services on 3 May 2019.
2. The defendant is
hereby ordered to pay costs of the action to date. Interest on costs
shall start to run 14 (fourteen) days from
the date of allocator or
agreement of the amount of costs.
B MAJIKI
JUDGE OF THE HIGH
COURT
Counsel
for the plaintiff
: Mr
Matanda
Instructed by
: Messrs
Siyabulela Parkie Attorneys
No. 66 Stanford Terrace
Street
MTHATHA
Counsel for the
Respondent
:
Mr
Gumede
Instructed
by
: The
State Attorney
Broadcast House
94 Sission Street
Fort Gale
MTHATHA