IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, MTHATHA)
CASE NO.: 1086/2019
In the matter between:
THEMBELANI MBALELA Plaintiff
and
MINISTER OF POLICE Defendant
JUDGMENT
ZONO AJ:
Introduction
[1] The plaintiff instituted these proceedings for damages arising out of plaintiff’s
assault, unlawful arrest and detention , all of which took place on 15th June
2018, although the detention took longer. The plaintiff alleges that he was
assaulted, unlawfully arrested and detained by members of South African
Police Service who were acting within the coarse and scope of their
employment with the defendant. As a result of his assault, unlawful arrest and
detention the plaintiff alleges that he sustained serious injuries and suffered
damages.
[2] The defendant in his plea denies that there was an assault or that the plaintiff
was assaulted. The defendant pleads that if there were inju ries sustained by
the plaintiff, t hose injuries were not caused by the defendant or his P ort St
Johns Police employees. With regard to the arrest and detention, the
defendant admits that there was an arrest and detention at the instance of the
members of South African Police Se rvice. However, the defendant denies that
arrest and deten tion was unlawful.
[3] The defendant relies on the provisions of section 40(1) and 40(1)(h) of the
Criminal Procedure Act 51 of 197 7 as amended. Section 40(1) of Criminal
Procedure Act provides:
“(1) A peace officer may without warrant arrest any person -
(h) who is reasonably suspected of committing or of having
committed an offence under any law governing the making,
supply, possession or conveyance of intoxicating liquor or of
dependence -producing drugs or the possession or disposal of
arms or am munition.”
[4] The defendant, in conclusion , pleads that the plaintiff was searched with his
permission and a drug of b oss Mandrax was found in his body and as result of
that he was arrested and detained at P ort St Johns Police cells .
[5] During trial of this matter parties applied for separation of issues with the
issue of liability to be determined first and issue of quantum to stand over.
This application was made in respect of all the claims.1 The application was
duly granted2 and the issue of liability was separa ted from that of quantum.
[6] The parties were “ ad idem ” about the issue of onus. Plaintiff bore the onus of
proof in respect of the claim arising from the alleged assault. The defendant
bore onus of proof in respect of the claim arising from the alleged unlawful
1 Assault, arrest and detention.
2 Rule33(4) of Uniform Rules of Court (URC) .
arrest and detention. Consequently, provisions of Rule 39(1 3) of U niform
Rules of Court became applicable.
[7] Rule 39(13) of the U niform Rules of Court provides as follows:
“(13) Where the onus of adducing evidence on one or more of the
issues is on the plaintiff and that of adducing evidence on any
other issue is on the defendant, the plaintiff shall first call his
evidence on any issues in respect of which the onus is upon
him, and may then close his case. The defendant, if absolution
from the instance is not granted, shall, if he does not close his
case, thereupon call his evidence on all issues in respect of
which such onus is upon him.”
[8] The plaintiff called his evidence first in respect of the claim arising from the
assault and for the sake of convinience also in respect of the claim arising
from the alleged unlawful arrest and detention without him losing his right to
call rebutting evidence3 in respect of the claim arising out of the alleged arrest
and detention.
[9] It is apposite at this stage to remark that, Rules of court are designed to
ensure a fair hearing and should be interpreted in such a way as to advance
and not reduce the scope of the right to a fair trial entrenched in section 34 of
the Constitution.4 They are also designed to enhance smooth running of the
proceedings.
[10] In Eke5 the Constitutional Court observed as follows:
“39. ……. Without doubt, rules governing the court process cannot be
disregarded. They se rve an undeniably important purpose.
That, however, does not mean that courts should be detained by
3 Rule 39(14) of URC .
4 DF Scott (EP) (Pty) Ltd v Golden Valley Supermarket 2002 (6) SA 297 (SCA) at 301 G -H.
5 Eke v Parsons 2016 (3) SA 37 (CC) .
the rules to a point where they are hamstrung in the
performance of the core function of dispensing justice. Put
differently, rules should not be observed for their own sake.
Where the interests of justice so dictate, courts may depart from
a strict observance of the rules. That, even where one of the
litigants is insistent that there be adherence to the rules. Not
surprisingly, courts have often said “[i ]t is trite that the rules exist
for the courts, and not the courts for the rules”.
[40] Under our constitutional dispensation, the object of court rules is
twofold. The first is to ensure a fair trial or hearing. The second
is to “secure the inexpensive and expeditious completion of
litigation and . . . to further the administration of justice”. I have
already touched on the inherent jurisdiction vested in the
superior courts in South Africa. In terms of this power, the High
Court has always b een able to regulate its own proceedings for
a number of reasons, including catering for circumstances not
adequately covered by the Uniform Rules, and generally
ensuring the efficient administration of the courts’ judicial
functions.”
[11] It was accordi ngly in the interests of justice and convenient to allow the
plaintiff to call his evidence in respect of all the claims first without him loosing
his right of calling his rebutting evidence on any issue in respect of which the
onus was on the defendant.
Assault
[12] The plaintiff testified that after he alighted from the taxi from Mthatha at
Mampube Stop, Port St Johns, walking on t he gravel road towards
Sijungqwini Location, someone in the motor vehicle (ranger) with tinted
windows called him by his nick name , Sipikipi ki. As he was coming closer, he
heard a sound of a firearm being c ocked and he then ran away. Motor vehicle
occupants became his chasers ; they fired some shots and he fell on the
ground and three men caught him in the garden of a certain homestead.
[13] One of the three men was in the Civilian Cloth es and two were in the Police
Uniform. They were all in possession of fire arms. They got the plaintiff up and
handcuffed him and began to assault him with clenched fists, open hands,
kicking him with booted feet and t ripping hi m down. As they were assaulting
him they were asking him about the firearm and that took place for about an
hour. The plaintiff testified that he was hysterically crying as a result of which
the members of the community came to watch. They would strangle the
plaintiff while they we re telling him to tap out if he has an answer.
[14] The p laintiff was severely bleeding. After they realised that they could not find
the firearm on plaintiff’s body and the kind of answer they were looking for ,
they took plaintif f to his homestead where they fou nd plaintiff’s brother ,
Solomzi. Plaintiff an d Sol omzi’s room were searched in vain. No firearm was
found. The plaintiff was there after taken to Port St Johns Police Station where
he was eventually detained.
[15] As the plaintiff was being processed for dete ntion, he requested to be
excused to relieve hi mself , and he was accomp anied by another Police
Officer who later realized that the plaintiff’s testicles were swollen. He reported
what he saw to other police officers and advised that plaintiff be taken to the
clinic. The same police officers who assault ed the plaintiff took him to the
clinic at about 16:55, where he was medically treated and released with
medication and a review date. He was then taken to the police station for
detention.
[16] The defendant discovered “ all documents opened and case docket ” in terms
of discovery affidavit deposed to by Colonel Mbeki on 04th June 2020.
Contents of the docket were subsequently filed on 31st October 2024 under
cover of n otice of filing. Part of the defendant’s discovered documents is what
the plaintiff referred to as “ clinic records .” This appears to be a copy of the
clinic card page. The notes in the clinic record or card appear to have been
made on the 15th June 2018.
[17] The relevant crucial information re corded in the clinical notes or clinic records
is as follows:
“ 15th June 2018……
Tembelani Mbalela M 29yrs
Caguba Loc
BP 130/85 MMHg P96 bpm T0C
16H55
Brought by Police
With Swollen Scrotum/testicles
After he was assaulted/kicked
On his private part today….
Review hospital PRN
Review -m/o (when needed) hospital”
[18] The plaintiff testified that he was released was from custody on 27th June
2018. An OPD sheet, part of Isilimela Hospital records discovered by the
plaintiff in terms of plaintiff’s discovery affidavit deposed to on 03rd June 2020,
recorded this crucial information .
“Patient’s name : Tembelani Mbalela Age:29 Sex:M
Bp:107//61 Pulse 89” Resp 18 Temp: 39.7oC
……………..
28/06/2018 Assaulted on Private parts by police
c/o of pains on private parts
Painful when passing urine
………..
Testis swollen ++ hard in areas…
….. Review PRN.”
This information was recorded by Isilimela Hospital on the day following the
release of the plaintiff from police custody .
[19] The plaintiff further testified that Isilimela Hospital referred him to Nelson
Mandela Academic H ospital where he was advised that he would have to
undergo surgical operation of the testicles. After the scan results, the plaintif f
was advised that the testicle s would have to be removed. He refused to
undergo that operation as he as afraid.
[20] The defendant denies that the members of SAPS assaulted the plaintiff.
Paragraph 3 of the plea states:
“3.2 The defendant denies the assault on the person of the plaintiff at
all. In amplification the defendant avers that:
……
3.3 The defendant admits that the plaintiff was detained at Port St
Johns Police Station holding cell, free of injuries .”
[21] The purpose of the pleadings is to define the issues for the other party and
the court. A party has a duty to allege in the pleadings the ma terial facts upon
which it relies . It is impermissible for a party to plead a particular case and
seek to establish a different case at the trial.6 During plaintiff’s cross
examination the defendant sought to introduce a version that the plaintiff
might have been caused by other inmate s. This is not defendant’s pleaded
case. This version presupposes that assault oc curred in the police cells but
not perpetrated by the police. Surprisingly defendant’s witnesses did not come
anywhere closer the version that plaintiff’s injuries might have been cau sed by
the inmates. That which was put to the plaintiff was not supported by the
defendant’s witnesses.
[22] The situation was exerbated by the fact that a version was placed again by
the defendant’s Counsel to the plaintiff that the police would come a nd testify
6 Minister of Safety and Security v Slabbert 2010 (2) LL SA 474 (SCA) Para 11 .
that they do not det ain injured people. When defendant’s witnesses came to
testify, none gave that version. No defendant’s witness testified that plaintiff’s
injuries might have been caused by the other inmates, and the police do not
detain inju red people.
[23] Put differently, it was never clearly repudiated that the p laintiff was assaulted.
Mandisi Xhaphile, who is one of the Police Officers who was present when the
incidents of 15th June 2018 were taking place, gave evidence. He gave a
genera l answer in relation to the alleged assault of the plaintiff. When a
version of plaintiff’s assault was put he would say “I do not know that or say i
don’t know that he was assaulted ”7. A party who does not make a firm
repudiation of an allegation when bound to do so incurs the risk of an adverse
inference being drawn against him.8 I am inclined to infer a dverse inference
against the defendant. Where a litigant wishes to dispute a fact , he is und er a
duty to deny it.
[24] I am fortified in my inclination to infer an adverse inference against the
defendant by the provisions of Rule 22(2) of Uniform Rules of Court (URC)
which provides:
“(2) The defendant shall in his plea either admit or deny or confess and
avoid all the material facts alleged in the combined summons or
declaration or state which of the said facts are not admitted and to what
extent, and shall clearly and concisely state all material facts upon
which he relies.”
There is thu s a serious duty imposed upon a legal practitioner who settles a
plea or answering affidavi t to ascertain and engage with facts which his client
disput es and to reflect such disputes fully and accurately in the plea9. Legal
Practitioners shou ld be disco uraged to be slack with this well -grounded
practice.
7 In a specific manner in the cross examination.
8 Mc Milliams v First Consolidated Holdings (Pty) Ltd 1982 (2) SA (1) (A) at 10E .
9 Wightman t/a JW Construction v Headfour (Pty) Ltd 2008 (3) SA 371 (SCA)at 375F - 376B .
[25] To round up , the plea only shows a bare denial of the allegations relating to
the assault. The oral testimony of the defendant’s witnesses only offers
equally bare denial of the evidence relating t o the assault of the plaintiff. The
weighed of the evidential material favours not only the rejection of the
defendant’s version but also the ad mission of the plaintiff’s case or a version
relating to the assault.
[26] I have alluded above to the fact tha t the clinic card or clinic records
discovered by the defendant demonstrate that the plaintiff was brought to the
clinic on the same date of his arrest at about 16:55 by the police officer. N o
police officer, who gave evidence , attempted to deal with or nega te this
evidence. This evidence accords with plaintiff’s evidence that he was brought
to the clinic by the same police officers who assaulted him. Indeed, the weight
of evidential material seems to be hea vier in favour of the plaintiff.
[27] The plaintiff states that he was brought back to the police cells from the clinic
by the same police officers who assaulted him. Whilst there is evidence that
the plaintiff was at the clinic on 15th June 2018 at 16:55 and also that he was
released from police custody only on 27th June 2018; there is absolutely no
account by the defendant as to how:
(a) the plaintiff was brought to clinic;
(b) and how he was brought back to the police cells for detention. This
avails plaintiff’s evidence for admission as credible , reliable and
probable evidence of the two.
[28] The plaintiff was released from custody on 27th June 2018. On 28th June 2018
the plaintiff was at Isilimela Hospital for the same injuries he complained of
and suffered on or sustained on 15th June 2018. This medical record too , is
not sought to be impugned by the defendant. The same injury for which the
plaintiff was medically treated on 15th June 2018 by the clinic is the one that
was medically considered on 28th June 2 018 when he was released on
custody. Both plaintiff and defendant’s version do not show that plaintiff was
ever not in the police custody at least from 14:00 on 15th June 2018. The time
when the plaintiff was brought to clinic (at 16:55) , he was still or already in
police custody. It is reiterated that this kind of evidence is not accounted for by
or on behalf of the defendant.
[29] Where , as in this case , the onus rest on the plaintiff , he can only succeed if
he satisfied the court on a preponderance of probabilities that his version is
true and correct10. I accordingly find that plaintiff’s version on the claim arising
from the plaintiff’s assault on 15th June 2018 is possibly true and corre ct.
[30] Nienaber JA in Stellenbosch Farmers Winey Group Ltd11 observed as follows:
“The technique generally employed by courts in resolving factual
disputes of this nature may conveniently be summarised as follows. To
come to a conclusion on the disputed issues a court must make
findings on (a) the credibility of the various factual witne sses; (b) their
reliability; and (c) the probabilities. 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’s 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 b ehalf, or
with established fact or with his own extracurial statements or actions,
(v) the probability or improbability of particular aspects of his version,
(vi) the calibre and cogency of his performance compared to that of
other witnesses testifying abo ut the same incident or events. As to (b),
a witness’s reliability will depend, apart from the factors mentioned
under (a)(ii), (iv) and (v) above, on (i) the opportunities he had to
experience or observe the event in question and (ii) the quality, integri ty
10 National Employers General Insurance v Jagers 1984 (4) SA 437 at 440E .
11 Stellenbosch Farmers Winery Group Ltd and Another v Martell et cier and others 2003 (1) SA
11 (SCA) at 12D -H.
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 its evaluati on of the general probabilities in another. The
more convincing the former, the less convincing will be the latter. But
when all factors are equipoised probabilities prevail …”
[31] The main hurdle the defendant could not pass is the contradiction between
their discovered document to wit, clinic card or record s of 15th June 2018,
which demonstrates that the plaintiff was brought by the members of SAPS to
the clinic with injuries on the scrotum or testicles on the one hand, on the
other hand, that the plaintiff was detained free of injuries. Another difficulty
with the defendant ’s version is that what was put to the plaintiff at times was
not supported by the defendant’s witnesses. Defendant’s evidence, even
when it stands alone leaves much to be d esired. It is not reliable, it is full of
improbabilities and it is not credible.
31.1 It worth noting that Constable K apok testified that he handc uffed the
plaintiff who appeared to him to be cooperative . That conduct was not
explained. The probability is that their conduct of inflicting pain to the
plaintiff was unprovoked. It is not clear why was it necessary to fasten
the plaintiff with handcuffs if he was cooperative . Secondly , Constable
Kapok was assisted by the two police officers to wit, Xhapile a nd
Mlungu to put the plaintiff into the motor vehicle they were driving in.
The nature of the assistance is not explained. The probability is that
they interfered with plaintiff’s body when they were assaulting him. It is
again not clear why an assistance was necessary if the plaintiff was
cooperative . Lastly , Constable Kapok testified that he did not notice
any injuries on the plaintiff before he was locked up in the cells; none
were reported by the plaintiff. The net effect of defendant’s evidence is
that it is in direct contradiction with itself, and does not si t comfortably
with the whole body of the evidential material before this court.
Defendant’s evidence is clearly not reliable.
31.2 Plaintiff’s constitutional right to bodily integrity was violated by the
members of defendant aforesaid.12 Section 12 (1) of the Constitution
provides:
“(1) Everyone has the right to freedom and security of the
person, which includes the right -
(a) ……
(b) ……
(c) to be free from all forms of violence from either public or
private sources;
(d) not to be tortured in any way; and
(e) not to be treated or punished in a cruel , inhuman or
degrading way .”
The plaintiff was assaulted by the members aforesaid in the full view
members of community. The circumstances under which the assault
took place amounted to torture and it was very much degrading.
31.3 Cameron J in Kirland Investments13aptly remarked as follows:
“82…… On the contrary, there is a higher duty on the state to
respect the law, to fulfil procedural requirements and to tread
12 Section 12(2) of the Constitution .
13 MEC for Health, Eastern Cape and another v Kirland Investments (Pty) Ltd 2014 (3) SA 481
Para 82 .
respectfully when dealing with rights. Government is not an
indigent or bewildered litigant, adrift on a sea of litigious
uncertainty, to whom the courts must extend a procedure -
circumventing lifeline. It is the Constitution’s primary agent. It
must do right, and it must do it properly.”
[32] In the final analysis I find de fendant liable for p laintiff’s damages arising from
plaintiff’s assault on 15th June 2018.
Unlawful Arrest and Detention
[33] Contrar y to plaintiff ‘s version that he was arrested pursuant to an assault and
question s relating to his alleged possession of a firearm, the defendant ’s
witnesses testified that the plaintiff was arrested for possession of drugs, to
wit, Boss Mandrax. Constable Kapok testified that on 15th June 2018 he
received an information that a young man from Caguba Administration Area,
Port St Johns , went to Mthatha to purchase drugs and the informer undertook
to update him about the youngman’s whereabouts. He then requested
Warrant O fficer Xhaphile and Sergeant Mlungu to sta nd by for back up
services/ duties .
[34] Warrant Officer Xhapile and Sergeant Mlungu went to pick up Constable
Kapok and then went to wait at Caguba Administrative Area for informer’s
update. At about 13:00 on 15th June 2018 the informer advised Constable
Kapok that the suspect had alighted from Mthatha. The informer gave
description of the suspect and how he dressed himself. Indeed, as they were
driving on the road they saw a person matching the description given by the
informer. That person was the plaint iff herein.
[35] Constable Kapok alighted and went to the plaintiff. As he was introducing
himself to the plaintiff, Warrant Officer Xhaphile and Sergeant Mlungu stood
outside the motor vehicle they were driving in. Constable Kapok requested
permission to search the plaintiff , which permission was granted by the
plaintiff. He found in the front pocket of plaintiff ’s pair of trousers a money bag
containing some tablets.
[36] Constable Kapok suspected that those tablets were the drugs. He was not
sure of the number of those tablets , but he testified that they were many.
Constable Kapok asked to the plaintiff what was contained in the money bag
and the plaintiff stated that those were drugs. Upon establishing that the
plaintiff di d not have licence or permit to posse ss drugs, he advised the
plaintiff that he was arresting hi m. He then handcuffed the plaintiff. The two
police officers assisted Constable Kapok in putting the plaintiff into the car.
The tablets were with Constable Kapok.
[37] A case was opened at the scene an d statements were taken as the two police
officers had t he necessary material to do so . The plaintiff was thereafter taken
to the police station for detention. Constable Kapok testified that upon arrival
at the po lice station he took the plaintiff into the cells while Warrant Officer
Xhaphile and Sergeant Mlungu went to the charge office. Tablets were given
to Warrant Officer Xhaphile to enter them in the relevant records. Constable
Kapok registered the plaintiff in the cell records or registers and altimately
detained him in the cells. Constable Kapok then left the plaintiff in the cells,
left the police station and police officers he was working with. He did not come
to contact with the case and plaintiff again. This evidence was given together
with the one relating to assault. Findings made about defendant’s witnesses
and evidence above are still relevant herein.
[38] Section 12(1) of the Constitution provides that:
“(1) Everyone has the right to freedom and security of the person,
which includes the right -
(a) not to be deprived of freedom arbitrarily or without just
cause;
(b) not to be detained without trial;”
[39] An arrest Constitutes an interference with the liberty of the individual
concerned and it therefore seems fair and just to require that the person who
arrested or caused the arrest of another person should bear the onus of
proving that his action was justified in law.14 Interference with individual ’s right
to fre edom must be justified in law . Every interference is prima facie
unlawful15.
[40] Individual ’s rights to freedom can be limited16. It can be limited if the limitation
is strictly in terms of law of general application. An arrest of an individual
constitutes an interference with the individual’s right to freedom. The purpose
of the arrest is to bring the suspect to trial or justice17. The defendant relies on
section 40(1) (h) of CPA in that the plaintiff was found to be in possession of a
Boss Mandrax.
[41] I am mindful of plaintiff’s version that he was arrested pursuant to police probe
about firearm. Nothing was said about drugs. However, I wish in the interim to
deal with the version of the defendant and establish if it passes muster.
[42] Constable Kapok, the arresting officer, relied on the information obtained from
his informer, who did not come to give evidence. It is not stated if the informer
was present when the so called drugs were being b ought. It is unknown how
the informer got to know about the purchase of drugs. What we know is that
the plaintiff was going alone when he was coming from Mthatha. It is not clear
how the informer became aware of the drugs. I may allude to the fact that the
informer did not even make a statement to the police. Informer’s knowledge
about drugs leaves more questions than answers. It could not have raised any
reasonable suspiscion that an offence referred to section 40(1)( h) of CPA has
been committed . It is not unimagin able that a person coming from a doctor or
pharmacy may be in possession of tablets relating to the condition he or she
14 Minister of Safety and Security v Sekhoto and another 2011 (5) SA 367 (SCA) Para 7; Minister
of Law and Order v Hurle y 1986(3) 568 (A) 589 E -F.
15 Zealand v Minister of Justice and Constitutional Development 2008 (2) SACR (1) (CC) Para
25.
16 Section 36 of the Constitution .
17 Minister of Safety and Security v Sekhoto 2011 (3) SA 367 (SCA) Para 42 and 44 .
was cons ulting in connection with. It was not reasonable to suspect on a mere
look to those tablets , without more, that they are Boss Ma ndrax.
[43] Constable Kapok, having been led by the information received from the
informer, confronted the plaintiff. According to him he found a money bag
containing tablet s. He knew that those were drugs by only using his naked
eye and what he calls “his experience ” to estab lish that those were drugs. He
did not only know that those tablets were drugs, he also knew that they were
a type of a drug that is called Boss Mandrax. Th is court was never apprised of
Constable K apok’s experience and qualifications relating to his knowledge of
different types of drugs, and where and how that knowledge, experience or
qualifications were obtained. All we know is that Constable Kapok was an
ordinary police officer. I say this because no evidence was led as to his
knowledge of different types of drugs.
[44] Lastly , at no stage were tablets sent for examination, even after the arrest and
detention of the plaintiff. It is therefore difficult to arrive under these
circumstances to a conclus ion that arresting officer ’s suspiscion was
reasonable. Reasonable suspiscion must be based on reasonable grounds .
Three interrelated questions need to be asked and answered. Is the
information received or heard fr om the informer reasonable? or D oes it
provide sufficient ground s for a reasonable suspicion? Does the possession of
tablets by any person, on its own , provide a reasonable ground for suspiscion
that such a tablet is drug?
[45] Informer ’s information about the drugs , without knowledge of how or w here it
was obtained is not reasonable. Possession of tablets , without more, cannot
give rise to a reasonable suspiscion that such a tablet is a drug, let alone that
it is a Boss Mandrax. Reasonable grounds are interpreted objectively and
must be of such a nature that a reasonable person would have had a
suspiscion18. The fact that the peace officer acted in good faith is no answer
to a claim of unlawful arrest and detention.
18 Duncan v Minister of law and Order 1986 (2) SA 805 (A) at 814 D .
[46] In Mabona19 Jones J had this to say:
“……… It seems to me that in evaluating his information a reasonable
man would bear in mind that the section authorises drastic police
action. It authorises an arrest on the strength of a suspicion and
without the need to swear out a warrant, ie something which otherwise
would be an invasion of private rights and personal liberty. The
reasonable man will therefore analyse and assess the quality of the
information at his disposal critically, and he will not accept it lightly or
without checking it where it can be checked. It is only after an
examination of this kind that he will allow himself to entertain a
suspicion which will justify an arrest. This is not to say that the
information at his disposal must be of sufficiently high quality and
cogency to engender in him a conviction that the suspect is in fact
guilty. The section requires suspicion but not certainty. However, the
suspicion must be based upon solid grounds. Otherwise, it will be
flighty or arbitrary, and not a reasonable suspicion.”
[47] Arresting off icer’s reliance on the information from unidentified informer was
insufficient. An informer who was not with the plaintiff when the alleged drug
purchase was taking place. It is not clear how he became aware of the
alleged purchase. The relationship betwee n the informer and the plaintiff was
not explained. Suspiscion was not based on reasonable grounds.
[48] About the alleged drugs found in possession of the plaintiff, the arresting
officer depended on his undisclosed experience without further investigati ng
the kind of tablets he allegedly found in possession of the plaintiff.20 Naming
of the tablets as Boss Mandrax21 is insufficient.
19 Mabona and another v Minister of law and order and others 1988 (2) SA 654 (SE) at 659 E -H.
20 De Klerk v Minister of Police 2018 (2) ALL SA 597 (SCA) Para 11 .
21 Boss Mandrax .
[49] O’Regan in Coetzee22 deal with two aspects of freedom, namely the
substance and the procedural component in this fashion:
“[159] These are separate questions. They raise two different aspects
of freedom: the first is concerned particularly with the reasons for which
the state may deprive someone of freedom; and the second is
concerned with the manner whereby a person is deprived of freedom.
As I stated in Bernstein and Others v Bester and Others NNO [1996]
ZACC 2 ; 1996 (2) SA 751 (CC); 1996 (4) BCLR 449 (CC) at
paragraphs 145 -7, our Constitution recognises that both aspects are
important in a democracy: the state may not deprive i ts citizens of
liberty for reasons that are not acceptable, nor, when it deprives
citizens of freedom for acceptable reasons, may it do so in a manner
which is procedurally unfair. The two issues are related, but a
constitutional finding that the reason fo r which the state wishes to
deprive a person of his or her freedom is acceptable, does not
dispense with the question of whether the procedure followed to
deprive a person of liberty is fair. With respect, therefore, I cannot
agree with Kentridge AJ when h e states at paragraph 93 of his
judgment:
“In brief, if an offence of absolute liability had been created, it
would not in itself have given rise to any question of the
unfairness of the trial of such an offence. Where the severity of
such a provision has been mitigated by allowing the accused to
prove a special defence it is in my view illogical if not perverse to
say that this destroys the fairness of the trial .”23
[50] Both aspects of plaintiff’s freedom have been negatively affected and violated
by the conduct of Constable Kapok and two police officers. The procedural
aspect is affected on the basis that t he unwarranted application of force and
assault of the plaintiff by the police officers concerned does not sit comfortably
22 S v Coetzee and others 1997 (3) SA 527 ( CC) Para 159 .
23 De Lange v Smuts NO and Others 1998 (3) SA 785 (cc); 1998 (7) BCLR 779 (CC) Para 18 .
with the version that the plaintiff , when he was being arrested, was dealt with
politely. It is highly improbable that the plaintiff wa s properly ad vised of his
rights in circumstan ces where he was being assaulted by the same members
of SAPS. The manner in which the plaintiff was arrested was procedurally
unfair. I accept plaintiff’s version that demonstrates that the police officers did
not introduce themselves to the plaintiff and that he was not advised of his
rights. Police officer’s failure when arresting and detaining the plaintiff to
introduce themselves to the plain tiff, coupled with the fact that they failed to
inform the plaintif f of his constitutional rights , is procedurally unfair.
Cons equently, plaintiff’s freedom or liberty was arbitrary deprived.
[51] Plaintiff’s rights were violated by the police officers at two levels : Firstly, when
he was arrested, and Secondly, when he w as detained. When he was
arrested, the police officers failed to advise him of his right to remain silent.
Section 35 (1) of the Constitution provides that:
“(1) Everyone who is arrested for allegedly committing an offence has
the right -
(a) to remain silent;
(b) to be informed promptly -
(i) of the right to remain silent; and
(ii) of the consequences of not remaining silent;”
[52] When the plaintiff was detained the plaintiff was not advised of his rights set
out in section 35(2)(a) -(f) of the Constitution which provides as follows:
“(2) Everyone who is detained, including every sentenced prisoner,
has the right -
(a) to be informed promptly of the reason for being detained;
(b) to choose, and to consult with, a legal practitioner, and to
be informed of this, right promptly;
(c) to have a legal practitioner assigned to the detained
person by the state and al. state expense, if substantial
injustice would otherwise result, and to be informed. of
this right promptly;
(d) to challenge the lawfulness of the detention in person
before a court and, if the: detention is unlawful, to be
released;
(e) to conditions of detention that are consistent with human
dignity, including at least exercise and the provision, at
state expense, of adequate accommodation, nutrition,
reading material and medical treatment; and
(f) to communicate with, and be visited b y, that person's -
(i) spouse or partner;
(ii) next of kin;
(iii) chosen religious counsellor; and
(iv) chosen medical practitioner.”
[53] Constable Kapok in his testimony stated that he is the one who took the
plaintiff to the police cells. He testi fied about what he did when he was
detaining the plaintiff. He testified th at he registered the plaintiff i nto the cell
records. Nothing e lse was said by Constable Kapok. A maxim of interpretation
“expressio unius est exclusio alteriu s” is applicable. It simple means that
express mention of one thing is an exclusion of the other.24 Express mention
of the things done excludes all things not specifically mentioned. Had
Constable Kapok advised the plaintiff of his rights he would have said s o in
his evidence. This attests to the fact that not only the arrest was unlawful but
also the accompanying detention. In fact the power to detain is inherent in
the power to arrest25. If a police officer does not have power to arrest , as a
corrollary he does not have a right to detain.
[54] Section 195(1)(a) of the Constitution provides that:
“(1) Public administration must be governed by the democratic values and
principles enshrined in the Constitution, including the following principles:
(a) A high standard of professional ethics must be promoted and
maintained….”
The manner in which the plaintiff was arrested and detained does not reflect
the conduct expected by these provisions. Police Officer’s (Kapok) conduct
when arresting and detaining th e plaintiff did not mirror the conduct that is
required of police officers. This section require s not just professional ethics,
but also “A high standard of professional ethics ” to be demonstrated. The bar
is very high. Any conduct falling short of high pr ofessional standard is
invalid26and unacceptable in a country founded on Constitutional values and
principles.
[55] When looking at this matter holistically one cannot divorce the conduct
exhibited by the police officers when the assault was me ted out to the pla intiff,
and when the arrest was e ffected. Police officer’s conduct of 15th June 2018
was a single and continuous enterprise purpose of which was to subdue the
plaintiff for him to submit to the arrest and consequent detention.
24 Ndaba v Ndaba 2017 (1) SA 342 (SCA) Para 51 (footnote included) .
25 Minister of Safety and Security v Sekhoto and another 2011 (5) SA 567 (SCA) Para 42;
Minister of Police and another v Du Plessis 2014 (1) SACR 217 (SCA) Para 28 .
26 Section 2 of the Constitution
[56] I have stated above that also the substantive component of plaintiff’s freedom
was violated. No tangible reasons and reasonable explanation was given for
the arrest and detention of the plaintiff. On the authority of Coetzee27 and De
Lange28 the state cannot deprive its citizen of liberty for reasons that are not
acceptable. It does not appear that the tablets, which were allegedly the
reason for the ar rest and detention of the plaintiff, were ever sent for
examination.
[57] In the amalgam of the facts of this case and the evidence tendered I find the
defendant liable to the plaintiff for damages arising from his unlawful arrest
and detention.
Conclusi on
[58] In the preceding paragraphs I have found the defendant liable to the plaintiff
for damages arising from plaintiff’s assault, arrest and detention. I see no
reason why costs cannot follow the result. I accordingly find the defendant
liable to pay c osts of suit.
[59] Although the plea shows that on 18th June 2019 the matter was postponed to
afford the plaintiff an opportunity to obtain a legal aid legal representative, the
evidence from both parties is silent about the postponement and the reason
for such a postponement. The onus of proof on the issue of arrest and
detention is on the defendant, w ho has failed to discharge such onus.
Accordingly, the defend ant has not made out a case to justify plaintiff’s
detention from 18th June 2018 to 27th June 2018.
Order
[60] In the result I make the following order :
27 S v Coeetze and others 1997 (3) SA 527 (CC ) Para 159.
28 De Lange v Smuts NO and others 1998 (3) SA 785 P ara 18 .
1. The defendant is found liable to pay plaintiff’s agreed or proven
damages arising from plaintiff’s assault on 15th June 2018.
2. The defendant is found liable to pay plaintiff’s agreed or proven
damages arising from plaintiff’s arrest on 15th June 2018 an d for
his resultant detention up to and including 27th June 2018.
3. The defendant is liable to pay costs of suit.
__________________ ______________
A.S ZONO
ACTING JUDGE OF THE HIGH COURT
APPEARANCES:
For the Plaintiff : ADV GUMEDE
Instructed by : C. MEVANA INC ATTORNEYS
70 Cumberland Street
Mthatha
Tel: 067 640 5553/ 064 738 1300
Email: chumamev@gmail.com
Ref: TM -MP19_Njov
For the Defendant : ADV MELANE
Instructed by : STATE ATTORNEY
94 Sission Street
Fortgale
Mthatha
Ref:683/19 -A8H
Email: XHanise@justice.gov.za
Matter heard on : 30, 31 October 2024 and
05 November 2024
Delivered on : 18 February 2025