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[2013] ZAWCHC 86
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Danti v Minister of Safety and Security and Another (14903/2012) [2013] ZAWCHC 86 (7 June 2013)
Republic of South Africa
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CIRCUIT LOCAL DIVISION,
GEORGE)
Case no: 14903/2012
Magistrate’s
court case no: H62/2010
NOMAWONGA DEBRA DANTI
............................................................................
Plaintiff
v
THE MINISTER OF SAFETY
AND SECURITY
.......................................
First
Defendant
VUSUMZI NDALA
...............................................................................
Second
Defendant
Court
:
Judge J I Cloete
Heard
:25,
26, 27 February 2013; 8, 9, 10, 11 April 2013 and 16 May 2013
Delivered
:7June 2013
JUDGMENT
CLOETE J:
The plaintiff claims
damages against the defendants jointly and severally in respect of
her alleged unlawful assault, arrest and
detention over the period
16 March 2007 to 19 March 2007. The merits and
quantum
of the claim have been separated and at this stage only the merits
need be determined.
On the evening of Friday
16 March 2007 the plaintiff, who was the mother of a
three-month old baby at the time, witnessed
the aftermath of a
brutal domestic assault in Cekiso Street in the Mossel Bay area.
When she arrived at the scene (where bystanders
had gathered), she
saw a severely injured and apparently unconscious woman lying on the
ground. She telephoned the emergency
services call centre number for
assistance and the police responded quickly, arriving in three to
four police vehicles.
The plaintiff, being
concerned about the severity of the woman’s injuries, asked
the police officers to telephone for an
ambulance. She was told that
there was no ambulance available, and the police proceeded to load
the injured woman into the back
of one of their vehicles in order to
transport her to hospital. According to the plaintiff her pleas to
the police to reconsider
and to rather wait for an ambulance were
dismissed. According to the second defendant, Officer Ndala
(‘
Ndala’
) and his partner at the scene, Officer
Sindelo (‘
Sindelo’
) the plaintiff became agitated
and aggressive. Ndala’s evidence was that the plaintiff was
armed with a stick, was shouting
and swearing at him and Sindelo,
and was inciting the bystanders who had gathered to take the law
into their own hands. Sindelo’s
evidence was that the
plaintiff was insulting the police officers, using vulgar language,
and was threatening to lay charges
against the police. Importantly
however, the evidence of both Ndala and Sindelo was that they simply
ignored the plaintiff, and
after loading the man who had assaulted
the woman (and who was also injured) into the back of their police
vehicle, they climbed
into the vehicle to drive away from the scene
to take the injured man to hospital. Neither testified that they
felt threatened
by the plaintiff or that she was in any way
obstructing them in the execution of their duties, although Ndala at
least was clearly
annoyed with her, as is confirmed by the events
that followed.
The plaintiff’s
evidence was that she was walking away from the scene when she was
called back to the vehicle in which Ndala
and Sindelo were now
seated. As she leant into the open window on the driver’s side
(where Sindelo was sitting) Ndala leant
over from the passenger seat
and sprayed her in the face with pepper spray from a canister that
he was brandishing. The two police
officers do not dispute that
Ndala sprayed the plaintiff in the face with pepper spray while they
were seated inside the vehicle.
They deny however that they called
the plaintiff back to their vehicle and gave various contradictory
versions during the course
of lengthy testimony about why Ndala had
discharged the spray.
Ndala’s various
versions (there were five in all) were as follows. Initially he
confirmed the one recorded in the statement
that he had made later
the same evening, namely that ‘
because she was so rude and
we struggled against her I had to use a pepper spray to stop her’
.
During his evidence in chief he stated that the plaintiff was
standing very close to the vehicle; that he was unsure of what
she
intended to do with the stick that she was carrying; and that in
order to protect Sindelo from her and to get her away from
the
vehicle he sprayed her. He did not mention that he himself had felt
threatened. In cross-examination Ndala stated that the
plaintiff was
still shouting at him and Sindelo; that they wanted to leave, that
she was leaning in through the open window and
did not want to move
away, and that this was why he had sprayed her. This version then
changed and his evidence was that he only
pepper sprayed the
plaintiff as a last resort after both he and Sindelo had pleaded
with her to move away from the vehicle and
that she had refused. Yet
again his version thereafter changed, and he claimed that it was
only he who had instructed the plaintiff
to move away and that he
had warned her that he would spray her if she did not do so. However
the plaintiff thought that Ndala
was joking with her and he then
proceeded to spray her. The plaintiff had not knocked on the
driver’s side window. It had
not been necessary because the
window had been open before she approached the vehicle.
Sindelo’s versions
(there were four in all) were as follows. He also initially
confirmed the one recorded in his statement
of later that evening,
namely that ‘
we decided to leave the scene but she kept
swearing at us and
[Ndala]
subsequently
[sprayed]
her
a little bit’.
During his evidence in chief Sindelo stated
that the plaintiff had leant against the vehicle and threatened to
have ‘
these police’
arrested. He pleaded with
her, telling her that she was making matters worse, and when she did
not stop Ndala warned her that
he would spray her. Still she did not
stop and it was at that stage that Ndala leant over and sprayed her.
During cross-examination
Sindelo stated that the plaintiff had come
over to the vehicle and knocked on the driver’s side window,
which was closed.
He was unable to say whether she had knocked on
the window with her hand or with the stick, but he recalled that
when he rolled
down the window she was still holding the stick.
After he had opened the window they ‘
spoke’
. The
reason why Ndala had sprayed the plaintiff was to cause her to move
away from the vehicle, because if she did not do so
‘
it
might have dragged her and hurt her’
. Sindelo had not
simply rolled up the window because he might have hurt the
plaintiff.
Significantly, Sindelo
(who was seated closest to the plaintiff) testified that: (a) he
had not regarded the words allegedly
uttered by the plaintiff as a
threat; and (b) he did not at any stage feel threatened by the
plaintiff. While the plaintiff was
consistent and cogent in her
version, the same cannot be said of Ndala and Sindelo, who appeared
to tailor their evidence each
time a new version put forward by them
was shown to be improbable. Again there was no evidence that after
they were seated in
the vehicle the plaintiff had somehow tried to
stop them from leaving and had thus obstructed the pair in the
execution of their
duties. There was also no evidence that Ndala had
resorted to using the spray in order to execute minimum force to
subdue the
plaintiff. In addition, Ndala eventually admitted that he
had indeed assaulted the plaintiff when he discharged the pepper
spray
into her face, despite at no stage having felt threatened by
her alleged behaviour from within the safety of the vehicle.
After Ndala had sprayed
the plaintiff in the face the two officers drove off and took the
injured man to hospital, leaving the
plaintiff to fend for herself.
She testified that her eyes and face were burning and that she was
coughing. She called a Mrs
Gungxa who lived close to the scene and
the latter assisted the plaintiff to a nearby tap where she washed
her face. Her face
and eyes continued to burn and Mrs Gungxa took
the plaintiff into her home where the plaintiff applied cooking oil
to her face
to try to stop the burning. The plaintiff’s
evidence was that she was compelled to reapply the oil to her face
to try to
get the burn under control. This testimony was confirmed
by Mrs Gungxa who gave evidence on the plaintiff’s behalf. Mrs
Gungxa also testified that she had witnessed the plaintiff’s
earlier presence at the scene although she had not witnessed
Ndala
assaulting the plaintiff as she had stepped into her house after the
injured had been placed in the police vehicles. Mrs
Gungxa’s
evidence was also that at no stage had the plaintiff wielded a stick
or any other weapon, neither had the plaintiff
behaved towards the
police or any of the bystanders in the manner alleged by Ndala and
Sindelo. Mrs Gungxa had also witnessed
the two police officers
calling the plaintiff over to their vehicle as she was leaving the
scene. None of this evidence was challenged
and it supports the
plaintiff’s version in all material respects.
The plaintiff, whose
unchallenged testimony was that as a young girl she had been
subjected to police brutality, gave evidence
that following upon
Ndala’s assault ‘…
ek weet nie of ek kwaad was
nie, of ek het deurmekaar gevoelens gehad, maar wat ek dan ook vir
myself gesê het dat ek gaan
polisiestasie toe gaan en –
om vir die polisie gaan rapporteer’.
After about ten
minutes she left Mrs Gungxa’s home and walked to the local
satellite police station (known as the ‘
CSC’
in
Kwanonqaba) which was a five-minute walk away. On her arrival at the
CSC the plaintiff encountered the duty police officer
(Inspector
Robertson (‘
Robertson’
)) who later testified on
the defendants’ behalf. The plaintiff’s evidence was
that she asked Robertson (although
at that stage she did not know
his name) to call the captain on standby duty. She wished to report
the assault but did not know
the name of the police officer
responsible. Robertson informed her that the captain would only be
available on the following
Monday, 19 March 2007, and that she
should accordingly return on the Monday. The plaintiff was not
prepared to wait until
the following Monday since she wished the
captain to observe the after effects of Ndala’s assault on her
face, eyes and
chest when they were still evident.
While the plaintiff was
explaining her concerns to Robertson, Ndala and Sindelo returned to
the police station. It was the plaintiff’s
evidence that as
they entered the charge office she pointed Ndala out. He responded
‘
ja, ek is Ndala’
and she testified that then‘
hy
sy hemp met sy naamtag uitgewys het en sê ja, hier is ek, wat
gaan jy doen’.
Ndlala moved quickly past the plaintiff
behind the counter. The plaintiff was frightened by Ndala and moved
away to sit down.
By this stage there were a number of police
officers in the charge office. Her evidence was that
‘
Ek
het toe vir hulle almal so deurgekyk, hierdie beamptes, waar ek
eintlik ʼn beampte – ek het eintlik ʼn beampte
gesoek
wat darem ʼn oop en ʼn vriendelike gesig het, want al hierdie
polisie wat hier ingekom het, is die wat hulle mee
saamgeloop het.’
The plaintiff testified
that she got up and continued to plead with Robertson to call the
captain; and it was at that point that
Ndala moved back from behind
the counter, sprayed her in the face again and hit her on her head
with the canister behind her
right eye. Some of the other police
officers present called on Ndlala to stop. He was holding onto the
plaintiff and they pulled
Ndala off her as she fell to her knees.
Her evidence was that the assault with the canister caused swelling
to the area on her
head and that she has subsequently suffered from
pain and discomfort in her right knee.
The plaintiff then
crawled towards the entrance of the CSC and a woman police officer
pointed her in the direction of an outside
tap. Her eyes and face
were again burning and she was coughing. She could hear that other
officers who had been in the close
vicinity of the scuffle were
coughing as well. The plaintiff again washed her face at the tap and
moved towards the entrance
gate in the yard to leave. Sindelo
grabbed her on her right shoulder and asked her where she was going.
She told him that she
was returning home but he forced her into the
back of a nearby police van. She asked Sindelo where he was taking
her and he replied
that ‘
jy gaan sien waarheen ons na toe
gaan’.
Sindelo drove the
plaintiff, locked in the back of the police van, to the Da Gamaskop
police station where there are holding cells.
On their arrival
Sindelo took away her cell phone and informed her that he was
arresting her although he did not explain why.
She begged him not to
arrest her and undertook that she would return whenever he wanted,
since she had a young baby at home whom
she was still breastfeeding.
Sindelo refused and told her that she would only see her child again
on the following Monday. The
plaintiff was handed over to another
police officer and later placed in a cell where she was incarcerated
until the following
Monday morning.
During cross-examination
it was put to the plaintiff that Ndala and Sindelo returned to the
CSC after taking the injured man to
hospital, but were thereafter
again called out to investigate another complaint. The plaintiff was
adamant that the pair had
not again left the CSC, and that if they
had returned and left again it was before she had arrived. It was
also put to her that
they had been called back to the CSC on a
second occasion because she was causing a scene; and that when the
two police officers
were leaving it for a second time it was the
plaintiff who had in fact confronted Ndala; that she had grabbed him
and a struggle
ensued, during the course of which Ndala sprayed the
plaintiff again in order to subdue her. Sindelo had intervened and
was also
affected by the spray. The police then arrested the
plaintiff in the charge office for assault on a police officer and
took her
outside to a police van. The plaintiff however stuck to her
version and impressed as an honest and forthright witness.
Unfortunately
the same cannot be said of Ndala, and to a lesser
extent, Sindelo.
Ndala’s evidence
was that he and Sindelo returned to the CSC after taking the injured
man to hospital. On their arrival
they encountered the plaintiff.
She and another woman were the only two members of the public in the
charge office at the time
although a number of police officers were
present, since they were changing shifts. Ndala confirmed that the
plaintiff had identified
him but tried to portray that he had
co-operated, claiming that he had gone so far as to write down his
name and give it to her.
This had never been put to the plaintiff.
Ndala’s evidence was further that the plaintiff was all the
while shouting at
him and he accordingly suggested to Sindelo that
they leave the CSC; but that ‘
luckily’
they were
simultaneously called out again to attend to another complaint,
apparently in Umtata Street. Ndala was not asked about
the nature of
the complaint, about what steps he and Sindelo had taken to deal
with the complaint, or how long it had taken them
to deal therewith.
He was referred to his occurrence report book but was not asked to
confirm the correctness of its contents,
nor was he asked to testify
about any aspects thereof. Ndala’s evidence was merely that
straight after the complaint had
been attended to he was called back
to the charge office by Warrant Officer Minnies (‘
Minnies’
)
to ‘
come and sort out the problem of the lady who is
complaining about us’
.
Ndala had seemingly
forgotten his earlier testimony that on his previous arrival at the
CSC a number of police officers were present
since they were
changing shifts, because he testified that upon their return to the
CSC many officers were present as they were
(i.e. only then) about
to change shifts. His evidence was that upon their return to the CSC
Minnies (who was in charge of special
duties that weekend) asked
Ndala what had happened with the plaintiff. As Ndala was explaining
to Minnies the plaintiff was shouting
at Ndala from the public side
of the counter. Minnies then again excused Ndala and Sindelo so that
they could ‘
go and attend to complaints outside’
.
As they were leaving Ndala felt a slap to the right side of his
face. As he looked back he saw that it was the plaintiff who
had
slapped him. She was also by that stage holding on to him. Sindelo,
who was immediately behind Ndala, grabbed the plaintiff
but she
would not let go of Ndala whose evidence was that ‘
she was
acting as if she was a person who is ill or sick, and I took out my
pepper spray and I discharged it on her…Sindelo
managed to
hold her, helped by another police officer, and they took her out
and they put her into the van outside.’
Ndala then laid a
charge of assault against the plaintiff.
Ndala was asked whether
he believed that if a person assaults a police officer they should
be arrested, to which he replied ‘
yes, that person must be
arrested and sent to the courts of law, and the court must decide
what
[its]
going to do about that person’.
During cross-examination
Ndala confirmed that, on his version, the plaintiff had been
afforded three opportunities to assault
him in the CSC before she
allegedly did so. The first was when he initially entered the charge
office; the second was when he
left to attend to the complaint in
Umtata Street; and the third was when he again passed her on his
return. On his version, throughout
this period, the plaintiff was
shouting at him, and the CSC was full of police officers, almost all
of whom carried firearms
and pepper spray and wore bulletproof
vests.
Ndala then claimed that
when the plaintiff assaulted him she had torn the buttons off his
shirt. This had not been put to the
plaintiff in her testimony and
had not been mentioned by Ndala either in his police statement or
his evidence in chief. His version
changed, again and again. He then
claimed that he had succeeded in pushing the plaintiff away from him
and that it was as she
approached him for a second time that he
sprayed her. It was as he was spraying the plaintiff that Sindelo
moved between the
two. Ndala had sprayed the plaintiff because if he
had tried to run ‘
then she would have followed me’.
His evidence was that he could not simply have retreated behind the
counter since she would have followed him. He was unable
to explain
why he had not anticipated that some of the other armed officers
would have come to his assistance if the plaintiff
had indeed
pursued him. When it was put to Ndala that the plaintiff had not in
fact assaulted him he replied that ‘
I sprayed her the time
when she was acting like a crazy person and she came towards me …
when somebody is acting crazy,
then you have to use the spray so
that you will be able to control the situation’.
Ndala was referred to
his police statement which he had already confirmed to be correct.
The statement makes no mention of an
earlier return to the CSC that
evening.In his statement Ndala had claimed that the plaintiff had
not shouted at him but at Sindelo;
that Minnies had asked Sindelo
what had happened and that Sindelo had furnished an explanation to
Minnies; that Minnies had then
tried to calm the plaintiff but that
she had lost control; that Ndala had then decided to leave the CSC;
that as he was approaching
the exit the plaintiff slapped him; that
police officers attempted to stop her but were unsuccessful as she
was out of control;
that the plaintiff then approached Ndala again
‘
with an intention to assault’
him and that he had
then used minimum force (i.e. discharging the pepper spray) and
arrested her for assault on a police official.
Ndala’s evidence
however was that he had not arrested the plaintiff; he had remained
behind in the CSC and it was Sindelo
who had taken the plaintiff to
the police van. Accordingly ‘
he
[i.e. Sindelo]
was
the arresting officer’.
Ndala tried to explain this
material contradiction away by claiming that he had meant in his
statement that he was the one who
had laid a charge of assault
against the plaintiff; and that he had also meant that she had been
arrested for assault on a police
officer. It should be mentioned
that at the time Ndala had been a police officer for more than three
years and could thus reasonably
have been expected to be able to
distinguish between an arrest and the laying of a charge.
When Ndala was pressed
to explain how the police officers in the CSC had tried to stop the
plaintiff from assaulting him he replied
‘
the people in the
CSC would not just sit there and just watch what was happening. Some
of them intervened by saying something
to her, like asking her to
stop what she was doing’.
When asked why he had not
mentioned the important detail concerning the buttons on his shirt
in both his statement and his evidence
in chief Ndala sought to
excuse this by stating that ‘
that’s why I say that if
I had written down everything that had happened by detail on that
day, then I would have written
up to ten pages’.
Having
testified a few minutes earlier that he had remained behind in the
CSC and that it was Sindelo who had taken the plaintiff
to the
police van, Ndala then claimed that he had in fact followed Sindelo
and another officer who was apparently assisting him
so that ‘
if
she should give them further problems, I should assist them. I
opened the bakkie, so they put her into the bakkie’.
Ndala’s evidence
was also that a police officer is obliged to arrest a person without
a warrant if that person commits or
attempts to commit an offence in
his or her presence. In his words ‘
if an offence has been
committed, I have to arrest the person’.
He again changed
his evidence, claiming that it was indeed him who had taken the
decision to arrest the plaintiff that night.
He was asked ‘
You
did not consider any other possibilities, except that she must be
arrested there and then?’
and he replied ‘
When
somebody has committed a crime in front of me and assaulted a police
officer, what other circumstances are there to think
of?’
When
he was asked whether or not he had considered any possibilities or
options other than arresting the plaintiff, he replied
that ‘
there
were no other possibilities...
a police officer is a person
that is supposed to keep order; he belongs to the state. So the
assault was a threat to the state.’
Ndala was referred to
s 40(1)(a)
of the
Criminal Procedure Act 51 of 1977
(‘
the
Act’
) which provides that:
‘
40
Arrest by peace officer without warrant
(1) A peace
officer
may
without warrant arrest any person –
(a) who commits
or attempts to commit any offence in his presence;…’
(emphasis supplied)
Ndala confirmed that he
understood the difference between the words ‘
may’
and ‘
must’.
He eventually conceded that
s 40(1)(a)
of the Act confers a discretion on a peace officer
to arrest a person without a warrant but a consideration of his
evidence on
this aspect leads to the conclusion that at the time of
the incident in the CSC Ndala was not aware of the existence of any
such
discretion. Again Ndala’s evidence thereafter changed and
he testified that Sindelo, when arresting the plaintiff, had told
her that he was arresting her ‘
for assaulting a police
official, and by committing the offence in front of him’.
He then claimed that Sindelo had informed the plaintiff of this as
he was wrestling her towards the police vehicle. This had
not been
put to the plaintiff and it had not been mentioned by Ndala in
either his statement or his earlier testimony.
Sindelo’s evidence
was that upon their return to the CSC the plaintiff demanded Ndala’s
name which he willingly provided.
He did not mention that the
plaintiff had been shouting at either him or Ndala; and said that
after Ndala had given the plaintiff
his name ‘
we attended
to other complaints and we left that lady at the police station’.
They were subsequently called back to the CSC by Minnies ‘
to
get clarification on the incident of the lady’.
As Ndala
(and not Sindelo as Ndala had claimed) was explaining to Minnies the
plaintiff ‘
interfered’
. She was ‘
using
very strong words, unacceptable words, and she smelt like alcohol’.
This had never been put to the plaintiff and was also not Ndala’s
testimony.
Sindelo testified that
Ndala suggested that they leave. As they were walking towards the
exit the plaintiff grabbed Ndala and
hit him with her right hand.
The two then wrestled with each other and Sindelo tried to intervene
by getting between them. It
was at that point that Ndala discharged
the spray. Sindelo confirmed that there were a number of other
officers in the CSC at
that stage but did not mention that any of
them had attempted to quieten the plaintiff or to intervene in the
scuffle. He said
‘
as this lady was fighting, I thought that
there was nothing else that I can do now, this person is fighting
with a police official,
I have to arrest her. I then pulled her
outside because at the – inside the station there is pepper
spray that was used.
When I got outside I told her that I was
arresting her for assaulting a police officer inside the police
station, as well as
in front of me’.
During cross-examination
Sindelo’s evidence was that it was Minnies who had told them
to leave and not Ndala who suggested
that they leave the CSC. He was
asked whether it seemed to him that Ndala was provoked by the
plaintiff and he replied that it
did not. He was again referred to
his statement, which he himself had written, where he had said that
‘
most police officials shouted her to leave or else she’s
gonna be arrested for riotous behaviour, but she kept on shouting
at
Ndala whom I saw/thought that, she was provoking Ndala and also
undermining the police…
[she]
blocked Ndala and
started to push Ndala and Ndala retaliated and she fought with Ndala
at the CSC. I stopped Ndala and also arrested
the lady immediately
for beating the police within the station. She told me… her
name… she also tried to apologise
but I told her that it was
late for
[an]
apology because she was underestimating us…’
.
Sindelo also testified
that it was only after Ndala had sprayed the plaintiff that he
managed to get between her and Ndala. When
challenged about the
inconsistencies between his statement and his testimony, Sindelo
proffered varying and equally unconvincing
explanations. First, his
evidence was that he had not had the opportunity to read through his
statement before testifying. He
was then forced to concede that he
had been given the opportunity to read his statement but claimed
that because he was being
asked a lot of questions he could not
remember everything that he had read in the statement. When it
became clear that this explanation
was also not going to hold water,
Sindelo resorted to saying that ‘
I’m not so
conversant in English, so I cannot be accurate in every word that I
use’.
However he conceded that he had prepared his
statement unassisted and that (apart from using words such as
‘
conversant’
and ‘
accurate’
in
his testimony) he himself had used the words ‘
retaliate’
,
‘
underestimating’
and ‘
provoking’
in the statement. When he was asked to explain what he had meant by
it having been late for an apology and that the plaintiff
was
underestimating the police, he replied ‘…
. by the
assault that she committed in the charge office, assaulting a police
officer… she came to the police station…
she was given
a chance. The chance she was given, she didn’t use it, she
became aggressive. She was shouting at Ndala and
he was not
responding. Me and Ndala were about to leave; she then attacked
Ndala. That is my view of “underestimating”’.
Sindelo testified that
Ndala had not asked him to arrest the plaintiff but that he had made
that decision himself. His evidence
was that there is a particular
form, which he referred to as a ‘
Form 14A’
,which
the arresting officer is obliged to complete and which contains all
of the relevant information concerning an arrested
person’s
rights under the Constitution. Sindelo maintained that he had
completed that form ‘
as it was the procedure. You read the
person their rights and you fill out that form.’
He also
claimed that the plaintiff had signed the form once her rights had
been explained to her. His evidence was further that
once the form
is completed and signed, one copy is placed in the docket, another
is given to the arrested person, and the remaining
copy is kept in
the register book. None of this had been put to the plaintiff and it
was common cause that the docket, which
had been discovered, did not
contain any such form. The best that Sindelo could offer was that it
must still be at the Da Gamaskop
Police Station. Sindelo denied that
the plaintiff had ever informed him about her baby and had only
apologised to him (why the
plaintiff was apologising to Sindelo is
not entirely clear) at which stage he had informed her that ‘
helping
people was my right, but also if you have done something wrong, I
must also detain you’.
His evidence was that‘
any
crime that is committed in the presence of a police officer, that
person must be arrested’.
As is the case with Ndala, a
consideration of Sindelo’s evidence on this aspect leads to
the conclusion that he is not
aware of the existence of the
discretion conferred upon a police officer in terms of s 40(1)
of the Act.
The evidence of
Robertson (whom the plaintiff had encountered on her arrival at the
CSC) corroborated that of the plaintiff’s
in all material
respects, save that he supported the versions of both Ndala and
Sindelo that they had left and returned to the
CSC and that the
plaintiff had instigated the scuffle by smacking Ndala. His evidence
was however that after the plaintiff had
smacked him, Ndala pushed
her away; that she came at him again and Ndala again pushed her
away; and that it was only as the plaintiff
was approaching Ndala
for the third time that he first warned her that he would spray her
‘
and then he sprayed her’
. This had never been
put to the plaintiff and was also not consistent with any of the
versions given by Ndala and Sindelo. Robertson
then changed his
evidence and said that it was as the plaintiff approached Ndala for
the second time that he warned her; and
that it was only after he
had again pushed her away and she came at him for the third time
that Ndala sprayed her. Robertson’s
evidence also differed
from that of the two other police officers as to what transpired
after Ndala had sprayed the plaintiff.
He said that ‘
and
then both of them, Sindelo, Ndala and the lady, they went out…
there
[were]
other policemen also, assisting taking that lady
outside’.
His evidence was also that during the scuffle
the other police officers in the CSC had not intervened. Robertson’s
evidence
differed from that of Sindelo, namely that he had moved
between the plaintiff and Ndala. Robertson’s testimony was
that
Sindelo had grabbed the plaintiff from behind as she was
approaching Ndala.
Robertson also testified
that pepper spray is used where the threat to a police officer is
minimal and that police officers are
required to issue a warning
before dispensing pepper spray.
Minnies testified that
on the evening in question he was called out of his office to the
charge office in order to speak to the
plaintiff. In his words:
‘
Daardie
stadium was die dame baie ontevrede, die dame was ongelukkig, en die
dame het ʼn baie harde stemtoon gehad. Ek het vir
die dame gevra
wat die probleem is. Sy het aan my genoem dat twee polisiekonstabels,
ene konstabel Ndala, haar ge-
pepper-spray
het
in Cekisostraat waar hulle ʼn klagte bygewoon het. Ek het gevra
vir die dame of sy ʼn kriminele klagte wil lê
as gevolg van
die voorval, het die dame aan my gerapporteer nee, sy verlang dat die
probleem opgelos moet word.’
His evidence was further
that he informed the plaintiff that he would call Ndala and Sindelo
back to the charge office on one
condition, namely that the
plaintiff would promise him that ‘
sy haar gaan gedra, en
dat sy – dat ons – dit op ʼn professionele manier
kan uitsorteer’.
The plaintiff agreed and he accordingly
contacted the two police officers who arrived a short while later.
The plaintiff pointed
out Ndala, and Minnies spoke to him. At that
stage the plaintiff was calm. However as Ndala began explaining
himself to Minnies
the plaintiff started to interfere. She spoke
loudly; and she and Ndala began a heated exchange. Minnies testified
that he could
see that the situation was about to get out of hand
and excused Ndala. Minnies encouraged the plaintiff to lay a charge
against
Ndala, and as Ndala was leaving ‘
het die dame na
hom geklap. Sy het hom vasgegryp’.
Minnies’ evidence
was that he was shocked; as he stood there the plaintiff was pushing
Ndala around. Ndala took out his
pepper spray and sprayed her.
Sindelo pushed between them and moved the plaintiff towards the
exit. He was assisted by another
police officer (Warrant Officer
Plato, who has since passed away). After Minnies had spoken to
Robertson he returned to his office
and had no more involvement with
the matter. Minnies confirmed that at the time the CSC was full of
police officers as they were
changing shifts.
Minnies impressed me as
an honest and forthright witness who did not attempt to embellish
his version. Robertson contradicted
himself during his testimony and
gave a version about the scuffle that seemed to me to be an attempt
to portray Ndala in as favourable
a light as possible. The evidence
of both Minnies and Robertson indicates that by the time the
altercation between the plaintiff
and Ndala took place, the
plaintiff had become distraught. The plaintiff’s evidence was
that by that stage she had already
been assaulted by Ndala in Cekiso
Street; was deeply distressed since in her perception she was being
met with the same disdain
in the charge office that she had
experienced in Cekiso Street; and that it seemed to her that no-one
was prepared to listen
to her properly and come to her assistance.
These factors, taken together with the plaintiff’s undisputed
testimony concerning
her previous experience of police brutality,
show that on the probabilities the role that the plaintiff played in
the scuffle
between herself and Ndala was not as passive as she
claimed.
However, that is not the
end of the enquiry. The question that must nonetheless be answered
is whether Ndala was justified in
pepper-spraying the plaintiff for
the second time. To my mind the answer to this must be no. First,
there was no evidence that
the plaintiff was still wielding the
stick which Ndala and Sindelo claimed she had in her hand in Cekiso
Street. Second, on Ndala’s
version it was open to him to have
simply retreated behind the counter and it is a poor excuse for him
to claim that he did not
do so because the plaintiff would have
pursued him. On the version of all of the police officers who
testified the CSC was full
of other armed officers at the time. The
evidence of both Minnies and Robertson was that none of the other
officers present had
taken any steps to quieten or subdue the
plaintiff before she slapped Ndala, which leads me to accept that,
whatever it was that
the plaintiff was doing, it could not have been
particularly serious or threatening. Third, it is highly probable
that by that
stage Ndala’s level of irritation with the
plaintiff had increased even further. Not only had the plaintiff
reported him
at the CSC; he had also been called back by Minnies to
explain himself.
The impression that I
gained is that Ndala is not a person who reflects before he acts, as
is borne out by the events of earlier
that evening in Cekiso Street.
It seems to me that Ndala only requires the minimum of provocation
to haul out his pepper-spray
in order to silence the source of his
irritation. The fact of the matter is that there were indeed other
avenues open to Ndala,
but instead he elected to employ the most
easily available, and most intrusive, means in order to subdue the
very same woman
whom he had assaulted earlier that evening. Cut to
their bare bones, the facts show that, on the probabilities, Ndala
indeed
again assaulted the plaintiff when he discharged his
pepper-spray for a second time in the charge office that evening.
In addition, even if the
jurisdictional facts referred to in s 40(1)(a) of the Act had
been present, the onus nonetheless
rested on the defendants to show
that Ndala and/or Sindelo properly exercised the discretion
conferred upon them in terms of
the aforementioned statutory
provision before carrying out the plaintiff’s arrest without a
warrant: see
Minister of Safety and Security v Sekhoto and Another
2011 (1) SACR 315
(SCA) at paragraph[7]. At paragraphs [28] and [29]
the Supreme Court of Appeal dealt with the discretion which an
arresting peace
officer is obliged to exercise as follows:
[28] Once the
jurisdictional facts for an arrest, whether in terms of any paragraph
of s 40(1) or in terms of s 43,
are
present, a discretion arises. The question whether there are any
constraints on the exercise of discretionary powers is essentially
a
matter of construction of the empowering statute in a manner that is
consistent with the Constitution.In other words, once the
required
jurisdictional facts are present the discretion whether or not to
arrest arises. The officer, it should be emphasised,
is not obliged
to effect an arrest. This was made clear by this court in relation to
s 43 in
Groenewald v Minister of
Justice.
[29] As far as s
40(1)(
b
)
is concerned, Van Heerden JA said the following in
Duncan
(at 818H-J):
‘
If
the jurisdictional requirements are satisfied, the peace officer may
invoke the power conferred by the subsection, ie, he may
arrest the
suspect. In other words, he then has a discretion as to whether or
not to exercise that power (cf
Holgate-Mohammed
vDuke
[1984]
1 All ER 1054
(HL)
at 1057). No doubt the discretion must be properly exercised. But the
grounds on which the exercise of such a discretion can
be questioned
are narrowly circumscribed. Whether every improper application of a
discretion conferred by the subsection will render
an arrest
unlawful, need not be considered because it does not arise in this
case.’
The evidence of both
Ndala and Sindelo was that they were not even aware of the existence
of such a discretion.This was correctly
conceded by the defendants’
counsel during argument.In
Ulde v Minister of Home Affairs and
Another
2009 (4) SA 522
(SCA) at paragraph [10] the Supreme
Court of Appeal said that
‘
By
assuming that he had an obligation to detain the appellant, Madia was
not exercising any discretion – he was carrying out
what he
believed to be a “blanket policy” which by definition
precludes the exercise of a discretion.’
That being the case the
defendants have been unable to place any facts before me to indicate
whether or not the discretion was properly
exercised. Accordingly the
enquiry whether there was an improper application of the discretion
does not even arise, notwithstanding
that, as was said in
Duncan
(
supra
), the grounds on which the exercise of such a
discretion can be questioned are narrowly circumscribed. Put
differently, on the
defendants’ own version, they are unable to
discharge the onus that rests upon them in this regard and it follows
that there
is insufficient evidence to indicate that the arrest of
the plaintiff was lawful.
During argument the
plaintiff’s counsel submitted, correctly in my view, that if
the plaintiff’s arrest was found
to be unlawful then it
followed that her subsequent detention was also unlawful. But even
if this is not the case, there are
nonetheless sufficient facts
before me to enable me to find that the plaintiff’s detention
was unlawful.
The only evidence on
this aspect was that of the plaintiff’s as well as certain
documentary evidence to which I will refer
below. It is common cause
that after the plaintiff had been incarcerated in the cells at the
Da Gamaskop Police Station her fate
was placed in the hands of
another unknown officer or officers and thereafter the investigating
officer, Constable Kakaza (‘
Kakaza’
) until her
appearance in court on the following Monday morning (just over 48
hours later) when she was released on warning by
the presiding
magistrate. Although it was the evidence of Robertson that Kakaza is
still employed as a police officer in the
area, and there were no
indications as to why Kakaza was unable to testify, he was not
called to give evidence on the defendants’
behalf.
The plaintiff’s
testimony was that after she was handed over by Sindelo, she was not
asked about her personal circumstances
by any of the officers that
she encountered at the Da Gamaskop Police Station. She was asked by
her counsel whether she had attempted
to ascertain the reasons for
her arrest and detention and she replied that ‘
Ek het nie
die beampte gevra nie, want ek was mos nou al bang gewees. Ek het
toe by die hof eers die Maandag kom hoor laat ek
vir aanranding dan
gearresteer was’.
The plaintiff testified
that on the following morning, Saturday 17 March 2007, she was
interviewed by Kakaza. She was referred
to the form that Kakaza had
completed during the interview and which he had signed. The form
reflects that Kakaza was made aware
that the plaintiff: (a) had a
fixed address; (b) was married; (c) had children; (d) was easily
traceable; (e) had no previous
convictions; (f) was not a suspect in
any other criminal case; and (g) had not resisted arrest. It also
reflects that Kakaza
was satisfied that the plaintiff: (a) had
co-operated with the police; (b) was not a danger to the community;
(c) would
not interfere with state witnesses; (d) should not be held
in custody; and (e) could be released on bail without any conditions
being imposed.
The plaintiff was asked
what her response had been to Kakaza’s question concerning her
children. Her evidence was as follows:
‘
Ek het
hom gesê ja ek het kinders, toe het ek sommer vir hom vertel
van hierdie baba wat nog drink. Toe het ek ook gevra en
gesoebat om
my vry te laat, want ek wil net die kind – die kind drink nog
aan my.
Wat was sy reaksie toe u vir hom
vra hy moet tog vir u asseblief vrylaat, want die kind drink nog aan
u? --- Hy het vir my gesê
nee hy sal my nie kan vrylaat nie, ek
gaan by die hof gaan hoor Maandag of die hof my dan gaan vrylaat.’
The plaintiff’s
evidence was also that, despite request, she was not permitted to
make any telephone calls nor were the police
prepared to notify her
family as to her whereabouts. None of this evidence was challenged.
As was the case with the
plaintiff’s arrest, the defendants bore the onus to show that
her subsequent detention was lawful.
However they failed to adduce
any evidence at all about: (a) what had led Kakaza to conclude that
the plaintiff should not be
released on warning in accordance with
s 72(1)(a) of the Act; or (b) why Kakaza, having concluded that
the plaintiff could
be released on bail (as contemplated by
s 59(1)(a) of the Act) not only failed to fix bail but refused
to release the plaintiff.
The evidence of all of
the police officers who testified was that it is the investigating
officer, and not the arresting officer,
who exercises the discretion
whether or not to grant bail. It was common cause that Kakaza was
the investigating officer; that
he had taken the trouble to
interview the plaintiff; and that he had recorded the information
obtained as well as his conclusions
in respect thereof. The form
signed by Kakaza shows that he had exercised his discretion and had
concluded that he could release
the plaintiff on bail. This
notwithstanding, it is common cause that the plaintiff was not in
fact released on bail and remained
incarcerated until her release on
warning by the presiding magistrate on the following Monday morning.
In these circumstances
the only conclusion that can reasonably be
drawn is that the plaintiff’s detention was also unlawful.
[48] Evidence was also
lead about the subsequent criminal proceedings in the magistrate’s
court relating both to the plaintiff
and Ndala. There was also the
evidence of the two expert witnesses, namely Ms Els (a clinical
psychologist who testified on behalf
of the plaintiff) and Dr
Kritzinger (a clinical psychologist who testified on behalf of the
defendants). Their expert testimony
related predominantly to the
psychological trauma suffered by the plaintiff as well as its
effects. I do not intend to deal with
this evidence since I am of the
view that none of it is directly relevant to the determination of the
merits of the plaintiff’s
civil claim. However because the
plaintiff has been successful and the evidence already given by Ms
Els will be relevant to the
determination of the
quantum
of
the plaintiff’s claim, it seems appropriate to take this into
account in respect of costs at this stage.
[49] During argument the
defendants’ counsel submitted that, were I to find in the
plaintiff’s favour, costs should
be reserved since the
quantum
of the plaintiff’s damages, once determined, might fall within
the jurisdiction of the magistrate’s court. I do not
agree that
it would be appropriate to order that costs be reserved for three
reasons. First, as recorded in the minute of the rule
37 meeting held
on 25 February 2013 (i.e. on the morning that the trial
commenced) it was still the defendants’ stance
that the matter
should not be transferred to another court. Second, and as was said
in
Faiga v Body Corporate of Dumbarton Oaks and Another
1997
(2) SA 651
(W) at 669G-J:
A separation of issues in terms of
the provisions of Rule 33(4), by its very nature, fragments a
hearing. This undesirable feature
is counterbalanced by the
prospective advantage of a saving in costs. One of the great
advantages of the Rule is that in matters
of delict, depending on the
outcome of the hearing on the merits, the issue of
quantum
might
never arise. Also, in those instances where the plaintiff succeeds on
the merits, the matter of
quantum
is often settled. Reserved
costs orders cannot bolster this advantage, but might detract from
it. Evidence and argument in this
matter lasted eight days. It is in
my judgment time to bring the curtain down on this part of the
proceedings and not to have decisions
on costs left in abeyance.
’
[50] Third, I must also
take into account that the plaintiff is not a person of means. She is
employed as a cleaner at a local hospital.
In
Grootboom v
Graaff-Reinet Municipality
2001 (3) SA 373
(ECD) at 381H-382C the
court, having cited
Faiga
(
supra
) with approval, also
took into account the financial position of the plaintiff; and said
‘
indubitably, the plaintiff can ill afford to await the
finalisation of the matter. I accordingly find myself compelled to
make an
award of costs at this stage’.
[51] The
quantum
of the plaintiff’s claim, as it currently stands, is R447 900.
It is of course open to the court adjudicating on
quantum
to
make a determination on the costs relating thereto, including an
order that the plaintiff may only recover costs on the lower
scale in
respect of those proceedings if it is ultimately found that the
quantum
of her claim falls within the jurisdictional limit of
the magistrate’s court. That however is a different issue and
does
not detract from the plaintiff’s success against the
defendants on the merits. There are also no indications that the
plaintiff
has conducted her case on the merits in anything other than
a responsible manner.
[52]
I accordingly make the following order:
1. The plaintiff
succeeds on the merits of her claim against the defendants.
2. The matter is
postponed for trial on the issue of
quantum
on a date to be
arranged with the Registrar.
3. The defendants are
ordered to pay the plaintiff’s costs incurred in the
determination of the merits on the High Court tariff
as between party
and party, including the following:
3.1. The qualifying
fees of the plaintiff’s expert, Ms C. Els; and
3.2. The travel and
accommodation costs of the plaintiff’s legal representatives
for attending the trial in Cape Town from
8 to 11 April 2013 and
on 16 May 2013.
_______________
J I CLOETE