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[2025] ZALMPPHC 34
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Van Der Zee v Minister of Police and Another (36/2019) [2025] ZALMPPHC 34 (20 February 2025)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
CASE
NUMBER: 36/2019
(1)
REPORTABLE:
YES
/NO
(2)
OF INTEREST TO THE JUDGES:
YES
/NO
(3)
REVISED.
DATE:
20 FEBRUARY 2025
SIGNATURE:
SUSANNA
CATHERINA PETRONELLA VAN DER ZEE
PLAINTIFF
-and-
MINISTER
OF POLICE
FIRST DEFENDANT
MINISTER
OF HOME AFFAIRS
SECOND DEFENDANT
JUDGMENT
BRESLER
AJ:
Introduction:
[1]
The matter came before court as a trial. The Plaintiff claims
judgment against the
First and Second Defendant, jointly and
severally, for an amount of R450,000.00 in respect of damages
suffered as a result of deprivation
of liberty, inconvenience and
contumelia
.
[2]
What distinguishes this matter from other claims normally instituted
as a result of
an arrest and subsequent detention, is that the
Defendants pertinently deny that there was either an arrest or any
detention of
the Plaintiff at any stage. Only four witnesses
testified in the case on behalf of the Plaintiff, one of whom is the
Plaintiff
herself. The Defendants elected to close their case without
calling any witnesses.
[3]
After the Plaintiff closed her case, the Defendant applied for
absolution from the
instance. The
crux
of the application was
that the evidence led by the Plaintiff’s own witnesses
contradicted her evidence and the official
South African Police
Service (SAPS) records do not show any evidence of the Plaintiff’s
alleged arrest and detention. After
having considered that further
evidence might come to light should the Defendants present their
case, this Court refused the application
for absolution.
[4]
As stated herein before, the Defendants then elected to close their
case without calling
any further witnesses.
Issues
that require determination:
[5]
Having regard to the position as postulated by the pleadings, this
Court is therefore
called upon to determine if the Plaintiff was
indeed arrested and detained and, if so, if damages were suffered as
a consequence
thereof.
The
Plaintiff’s testimony:
[6]
The Plaintiff testified that on the day of the alleged incident,
being the 29
th
of October 2018, she was present in her
shop situated at Tzaneen, Limpopo Province. At approximately between
the hours of 12:00
and 13:00, officials employed by the First
Defendant, accompanied by officials from the Second Defendant,
approached her in her
shop, informed her she is being arrested and
demanded that she must ‘get into their vehicle’ so that
she can be taken
to the Tzaneen Police Station. When asked for a
reason, they informed her that her ‘working permits’ had
expired. She
could not recall if their clothes were blue or brown.
[7]
The Plaintiff informed them that she had her keys with her and that
she can drive
to the Police station herself. They refused. When asked
if she can collect her cell phone, this request was also refused. She
was
then obliged to get into the back of the vehicle with two other
ladies being Irene Mfishane and Patience Mawadze.
[8]
They were taken to the Tzaneen Police Station around the back where
the Police cells
are. At the Police station, they were kept in
deplorable circumstances. They were shackled and had chains on their
hands and feet.
When one of the detainees asked to make use of the
restroom, this request was blatantly ignored. The Plaintiff told this
detainee
to ‘go on the floor’.
[9]
The police station had two holding cells. One was presumably utilised
for men and
the other for women. The cell was approximately 4 –
5 square metres. The cell was extremely dirty and had no toilet. The
area was smelly and noisy.
[10]
They were not provided with any food or water for the duration of her
detention. She was not
willing to make use of the amenities, save for
the toilet, which she was obliged to make use of.
[11]
Later during the testimony of the Plaintiff, she testified that she
had her cell phone with her
in the holding cell. Her phone was
utilised to take the pictures that were admitted into evidence. She
could not identity the person
that took the photos.
[12]
As to her demeanour on the photos, the Plaintiff testified that she
wanted to keep the spirits
of her workers high and to pacify them. It
was not an expression of her true emotional state.
[13]
The Plaintiff furthermore testified that she did not utilise her
phone to contact her husband
or any third party. She did not ask any
questions or approached any officials whilst being detained at the
Police station as she
was too shocked and emotional.
[14]
After 17:00 the Plaintiff’s staff informed her children that
she was at the Police station.
She was then only released after dark
– the Plaintiff could not recall the exact time but
approximated it to be after 19:00.
[15]
During cross examination, it was put to the Defendant that all
detainees are kept in the reception
cell pending processing. All
their personal effects are to be handed over to the SAPS for safe
keeping. The Plaintiff could not
indicate why she served as the
exception in so far as she retained her cell phone.
[16]
It was put to the Plaintiff that she was able to make a call to a
third party as she had her
phone with her – in response she
stated that she did not want to unnecessarily involve her children
and her husband, hence
she did not call them.
[17]
In response to the submission from counsel that she would only have
been allowed to retain her
cell phone if she was merely a visitor,
the Plaintiff posed the question as to how else she would have
travelled to the Police
Station without her car.
[18]
During re-examination, the Plaintiff persisted in her version that
she was arrested and detained
and not simply visiting her employees.
[19]
She also stated during cross examination that she did not sit with Ms
Mfishane and Ms Mawadze
– there were a few people between them.
She did not see any officials visiting the cell as she just sat there
crying.
[20]
The difficulty with the testimony of the Plaintiff lies in the fact
that her recollection of the incident,
appears to be selective. She
recalls pertinent details like a noisy environment, interactions with
individual detainees, and particulars
like the two mattresses and the
dirty shower. She is however unable to recall the colour of the
uniforms of the alleged arresting
officers. This court is also not
satisfied with her explanation that she did not use her cell phone to
call family members as she
was ‘embarrassed’. One would
assume that, at the very least, she would approach an official and
ask for the reason
for her alleged arrest and detention. This seems
to be the more natural expected reaction. According to her, she did
not approach
anybody, did not speak to anybody and was not addressed
by anybody, yet she was simply ‘released’ later that
night
without explanation. One would also assume that, if the took
the pains to take photo’s to bolster her employees’
morale,
she would have at least taken the effort of talking to them.
It appears however from her testimony that she simply stayed quiet.
[21]
As will be evidenced from what is stated herein after, her evidence
was also contradicted by
her employees in several respects. Although
counsel for the Plaintiff argued that her emotional state tainted her
testimony to
a certain extent, the different versions cannot simply
be ignored. The concession in itself, in so far as it presupposes
that the
evidence might not be a true recollection, casts doubt on
the Plaintiff’s version.
The
testimony of Patience Mawadze:
[22]
Ms Mawadze confirmed that she has been employed by the Plaintiff
since 2015. She furthermore
confirmed that she was present on the
29
th
of October 2018 when the incident transpired.
[23]
She recalled that the incident in question transpired sometime after
12:00 in the afternoon.
Police officials (the First Defendant’s
representatives) dressed in blue uniforms and Home Affairs officials
(the Second
Defendant’s representatives) dressed in khaki
uniforms entered the shop.
[24]
The First Defendant’s representative requested a copy of her
passport and identity document.
They ten informed her that they were
going to arrest her and take her to the Police station.
[25]
She was told to get into the one Police vehicle (a police van). She
was later joined by Ms Mfishane
in the Police vehicle whereafter they
were taken to Tzaneen Police station. Upon their arrival, the
Plaintiff was not there. She
only arrived later and then joined them.
The Plaintiff stayed with them for quite some time. They were not
shackled.
[26]
At the Police station, they were told to wait. After a period of
time, Ms Mawedze and Ms Mfishane
were processed and their
fingerprints taken. They were then taken to an alternative holding
cell and ‘locked up’. They
were not accompanied by the
Plaintiff. She only saw the Plaintiff the next day and after their
release.
[27]
The witness was not able to indicate how long this process took as
cell phone was taken by the
First Defendant upon her arrival at the
Police station. This aligns with the statement put to the Plaintiff
that personal belongings
are removed and not retained by detainees.
[28]
Curiously, and contrary to the testimony of the Plaintiff, she
testified that Exhibit B is a
photo taken of herself, Ms Mfishane and
the Plaintiff when they were ‘taken to the toilet’. It
was pertinently testified
by the Plaintiff that the First Defendant
ignored the request from some of the individuals to make use of the
facilities, resulting
in her telling a detainee to ‘go on the
floor’.
[29]
During cross examination, Ms Mawedze remained steadfast in her
testimony as to her personal experience.
She was not willing to
speculate on the position of the Plaintiff or any allegations
regarding incidents that transpired in her
absence.
[30]
Having considered the testimony as a whole, this Court found Ms
Mawedze a credible witness. Her
answers did not appear contrived or
dramatized in any respect.
The
testimony of Ms Mapula Rachel Mangena:
[31]
Ms Mangena confirmed that she is an employee of the Plaintiff. She
testified that members of
the First and Second Defendant came to
their place of employment on the 29
th
of October 2018. She
confirmed that the Plaintiff was informed that she was being arrested
and that they are taking her with them.
[32]
She took the car keys from the Plaintiff and handed her, her cell
phone.
[33]
She did not witness the Plaintiff leave with the Police vehicle, but
she assumed she went as
she did not see the Plaintiff for the rest of
the day.
[34]
She confirmed that the Plaintiff returned to work on the next day and
appeared to be troubled.
The Plaintiff did not however discuss the
incident with Mr Mangena.
[35]
During cross examination, she reiterated that she did not remain
outside and can therefore not
testify as to what transpired after she
left.
[36]
The evidence of the witness was consistent. She did not venture into
the arena of speculation
or opinion and remained steadfast in her
conviction that she cannot testify on events that she did not
observe.
[37]
Nothing much however turns on her testimony save in so far as she
confirmed that the Plaintiff
was in possession of her cell phone.
The
testimony of Irene Mfishane:
[38]
Ms Mfishane confirmed that she is employed by the Plaintiff and that
she was involved in the
incident that took place on the 29
th
of October 2018. She confirmed the testimony of the Plaintiff and Ms
Mawadze that the officials from the First and Second Defendant
attended their workplace shortly after 12:00 noon. She also testified
that the officials indicated that the purpose of the attendance
is to
inspect their work permits.
[39]
She confirmed that both her and Ms Mawadze were arrested and told to
enter the Police vehicle
(the Police van). Contrary to the testimony
of the Plaintiff, Ms Mfishane testified that, at the time they were
taken into custody
by the officials, the Plaintiff was ‘inside’
(the shop). She was adamant that she could not testify as to what
transpired
in the shop as she was not present.
[40]
She confirmed the testimony of Ms Mawadze to the effect that they
were both taken to the Police
station in the same vehicle and that
the Plaintiff only followed approximately 10 – 15 minutes
later.
[41]
She could not confirm if the Plaintiff was accompanied by a member of
the First Defendant but
did indicate that the Plaintiff shared a
bench with her and Ms Mawadze.
[42]
Ms Mfishane confirmed that there were no facilities where they were
sitting. Again, contrary
to the testimony of the Plaintiff, she
stated that when asked to use the facilities, the officials obliged
by taking them in a
group together.
[43]
When being shown the photos that were admitted into evidence, Ms
Mfishane confirmed that same
was taken outside of the facilities when
they were taken as a group to use it.
[44]
Approximately after 16:00 in the afternoon, they were taken to the
second cell where they were
locked in for the evening. The Plaintiff
did not accompany them. In the second cell, they were provided with
supper. They were
also given toiletries like soap and toothbrushes.
[45]
As to being left without food and water for the full duration of the
detention, as was testified
by the Plaintiff, she stated that she was
too stressed to ask for water so she cannot confirm that the First
Defendant denied them
water or food.
[46]
During cross examination, she confirmed that the Plaintiff did not
accompany them in the same
vehicle. She corroborated the evidence of
Ms Mawadze and contradicted the Plaintiff in this regard.
[47]
She also contradicted the evidence of the Plaintiff to the extent
that she confirmed that they
did not share a cell but that the
Plaintiff was sitting at the part where there was a bench. She also
confirmed that she did receive
toiletries, and that the Plaintiff
would not receive same as she was not taken to the cells with Ms
Mawadze and her.
[48]
In so far as the testimony of Ms Mawadze and Ms Mfishane were
consistent and, to a large extent,
very similar, this court do not
doubt that the evidence presented by Ms Mfishane was also truthful.
Their testimony also conforms
with the statements made by the
Defendants’ counsel as to the normal procedures followed in
arresting and detaining a suspect.
The Court therefore has not
reservation in finding her to be a credible witness.
[49]
It is therefore, at the very least, common cause between the parties
that Ms Mawedze and Ms Mfishane
were arrested and detained. This is
corroborated by
inter alia
the SAPS 10 form that forms part of
the proceedings.
[50]
It also appears from the testimony of Ms Mawedze and Ms Mfishane that
the Plaintiff was treated
differently to a large extent. She was not
placed with them in the same Police vehicle, she was not expected to
provide her fingerprints
or complete any forms, she retained her cell
phone during the course of the alleged arrest and detention, she was
not removed to
the second cell and locked up, she was not provided
with food or toiletries and she was not detained overnight.
Applicable
law:
[51]
The Plaintiff submitted in its Heads of Argument that the Defendant
failed to raise any defence
to justify the arrest and detention. This
Court disagrees. It is not common cause that there was, indeed, an
arrest and detention
of the Plaintiff. The Defendants’ defence
is just that: a denial of the arrest and detention as opposed to
justifying an
admitted arrest and detention.
[52]
The cause of action in respect of an unlawful arrest and detention is
the
actio
iniuriarum.
[1]
To succeed with the claim, the Plaintiff must therefore prove
causation, wrongfulness, fault and harm.
[2]
A successful delictual claim entails the proof of a causal link
between a defendant’s actions or omissions, on the one hand,
and the harm suffered by the Plaintiff on the other hand. This is the
‘but-for’ test. Legal causation must be established
on a
balance of probabilities.
[53]
It is trite law that the Plaintiff must prove arrest and detention –
unlawfulness is then
assumed, and the
onus
is on the Defendant to prove lawfulness.
[3]
[54]
Arrest takes place as soon as the police assume control over the
person’s movements.
[4]
Can
it be said that the First Defendant ‘assumed control’
over the movements of the Plaintiff?
[55]
The Plaintiff’s testimony is that a member of the First
Defendant (presumably) approached
her in the shop and informed her
that she was being arrested. He accompanied her to the police vehicle
and told her to ‘get
in’. The impression was created that
this transpired more or less simultaneous with the arrest of the
other individuals as
they were ‘detained’ in the same
vehicle, according to the Plaintiff. This version was rejected by
both Ms Mfishane
and Ms. Mbawedze.
[56]
Ms. Mangena, contrary hereto, testified that the interaction took
place whilst she was standing
outside when the Plaintiff was informed
that she was being arrested. She took the Plaintiff’s keys and
went inside to collect
the Plaintiff’s cell phone, which she
handed to the Plaintiff (presumably outside) whereafter she returned
inside. She did
not see the Plaintiff leave.
[57]
There are just one too many anomalies in the testimonies of the
Plaintiff and her witnesses.
The Plaintiff was not re-called to
verify these different versions, nor was these witnesses declared to
be hostile or uncooperative.
There is no reason to reject their
testimony to the effect that control was not assumed over her.
[58]
It was never put to Ms Mawadze and Ms Mfishane that their arrest and
detention was flawed.
It is simply unfathomable that three
people will be arrested simultaneously, but the process followed in
only one is fatally flawed
to the extent that absolutely no record of
her arrest and detention exists.
[59]
As to her alleged detention, this Court is similarly of the view
that, having regard to the vast
difference between her version, and
that of Ms Mawadze and Ms Mfishane, that the Plaintiff was not
detained. The fact that she
did not request any person to leave, does
not justify a finding that she was not able to leave as and when she
wished. Coupled
with the discrepancies in the Plaintiff’s
testimony highlighted herein before, it rendered her testimony less
than satisfactory.
[60]
The Plaintiff argued that a negative inference must be drawn from the
fact that the Defendants
did not call any witnesses. Having regard to
the Heads of Argument, it appears that the Plaintiff wants to make
out a case that
in the absence of witnesses rebutting the Plaintiff’s
testimony, it must be accepted as the truth. It is this Court’s
view that the Plaintiff failed to appreciate that her own witnesses
damaged her credibility.
[61]
The Defendant made reference to the matter of
Briers
N.O. and Others v Salmon N.O. and Others
[5]
where the Court stated the following:
‘
[6] The general
rule regarding the drawing of inferences is trite. The inference that
is sought to be drawn must be consistent with
all the proved facts;
if it is not, then the inference cannot be drawn.
[6]
The position was summarised as follows in S A Post Office v Delacy
and Another:
'The process of
inferential reasoning calls for an evaluation of all the evidence and
not merely selected parts. The inference that
is sought to be drawn
must be "consistent with all the proved facts. If it is not,
then the inference cannot be drawn"
and it must be the "more
natural or plausible, conclusion from among several conceivable ones"
when measured against
the probabilities.'
[7] 'Plausible' in
this context means 'acceptable, credible, suitable'.
[7]
It has also been stated that, where one or more inferences are
possible, a court must satisfy itself that the inference sought
to be
drawn is the most plausible or probable, even if that conclusion may
not be the only one.
[8]
[8] If there are no
positive proved facts from which the inference can be made, the
method of inference fails and what is left is
mere speculation or
conjecture.
[9]
[62]
In lieu of the above authorities, this court is of the view that
nothing turns on the fact that
no witnesses were called on behalf of
the Defendant. In this matter, the Defendants did not carry any
onus
as the Plaintiff first had to proof that an arrest and detention in
actual fact took place.
The
position of the Second Defendant:
[63]
This Court finds it apposite to note the position of the Second
Defendant specifically, as the
testimony of the witnesses addressed
mostly the actions of the First Defendant.
[64]
The Plaintiff could not positively testify that a representative of
the Second Defendant assumed
control of her person. She could not
confirm if the vehicles of the First or the Second Defendant were
utilised. There was no testimony
to the effect that the alleged
arrest was at the behest of the Second Defendant – mention was
merely made that the ‘permits’
were not in order. It was
also the Plaintiff’s testimony that she was ‘detained’
by the First Defendant.
[65]
As such, no case has been made out against the Second Defendant
specifically and the Plaintiff’s
case against it stands to be
dismissed as well.
Conclusion:
[66]
The Plaintiff failed to prove, on a balance of probabilities, that
she was arrested and detained
by the First and Second Defendant. As
such, the Plaintiff’s claim cannot succeed and stands to be
dismissed. There is no
reason why the cost order should not follow
the outcome of the proceedings. Having regard to the nature of the
matter and the importance
thereof to the parties, costs are awarded
on a party and party scale including costs to counsel on Scale B.
Order:
[67]
In the result the following order is made:
67.1
The Plaintiff’s claim is dismissed with costs on party and
party scale including costs to counsel on
Scale B.
M
BRESLER AJ
ACTING
JUDGE OF THE HIGH COURT,
LIMPOPO
DIVISION, POLOKWANE
APPEARANCES
:
FOR
THE PLAINTIFF :
Adv. AM
Schnehage
INSTRUCTED
BY
:
Kirk
Twine Attorneys
Polokwane
ktwine@ktpsa.co.za
FOR
THE DEFENDANTS :
Mr TA Masete
INSTRUCTED
BY
:
Office
of the State Attorney
Polokwane
TMasete@justice.gov.za
DATE
JUDGEMENT RESERVED:
11 October 2024
DATE
OF JUDGMENT
:
20
February 2025
[1]
Thompson v Minister of Police
1971 (1) SA 371
(E) at 373
[2]
Oppelt v Head: Department of Health Provincial Administration:
Western Cape
2016 (1) SA 325
(CC) at par 34
[3]
Minister of Law and Order v Hurley 1986 (3) SA 568 (A)
[4]
R v Mazena
1942 (2) SA 152
(E) at 154
[5]
2023 JDR 0431 (WCC) at [6]
[6]
With reference to S A Post Office v Delacy and Another
2009 (5) SA
255
(SCA) at para 35. R v Blom
1939 AD 188
at 202-203.
[7]
With reference to
Ocean
Accident and Guarantee Corporation Ltd v Koch
1963 (4) SA 147
(A) at 159B- D.
[8]
With reference to
AA
Onderlinge Assuransie-Assosiasie Bpk v De Beer
1982 (2) SA 603
(A).
Cooper
and Another v Merchant Trade Finance Ltd
(474/97) [1999
]
ZASCA 97 (1 December 1999) para 7;
Govan
v Skidmore
1952 (1) SA 732
(N) at 734C-E.
[9]
S v
Essack & another
1974 (1) SA 1
(A) at 16C-E, quoting
Caswell
v Powell Duffryn Associates Collieries Ltd
[1939] 3 All ER 722
at 733.