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[2010] ZAWCHC 101
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Malgas v Minister of Safety & Security (9332/2007) [2010] ZAWCHC 101 (25 May 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
Case
No: 9332/2007
In
the matter between:
JUAN
REYNOL MALGAS
Plaintiff
and
THE
MINISTER OF SAFETY & SECURITY
Defendant
JUDGMENT
DELIVERED ON 25 MAY 2010
ALLIE,
J
[1]
At the commencement of the hearing the court ruled that the merits of
the matter be separated from the determination of the
quantum in term
of Rule 33(4) of the Uniform Rules of the court.
[2]
On the first day of the hearing, the plaintiff amended his
particulars of claim by adding that members of the South African
Police Services unlawfully assaulted him whilst he was in the bar
area of the Camelot Restaurant, Mossel Bay by grabbing him and
throwing him to the ground, pressing him down while on the ground,
twisting his right ankle, spraying him with teargas and placing
handcuffs on him.
[3]
Plaintiff's claim is for damages arising out of an injury that he
sustained to his right ankle when he was allegedly assaulted
by the
South African Police Services on 22 October 2006 inside the Camelot
Restaurant and pub in Mossel Bay.
[4]
The defendant pleads that members of the South African Police
Services were justified in spraying teargas into the face and
eyes of
the plaintiff and in causing the plaintiff's injuries to his ankle,
in as much as, he had resisted arrest and he had interfered
with the
arrest of his wife which the members of the SAPS were trying to
effect. The defendant further pleads that members of the
SAPS were
acting in defence and in response to the plaintiff's attack and
assault on them and alleged further that members of SAPS
were lawful
in their application of force to effect the arrest of the plaintiff
in terms of
Section 49
of the
Criminal Procedure Act No. 51 of 1977
.
[5]
In the alternative, defendant pleads that should the court find that
the members of the SAPS were wrongful and were negligent,
the
defendant is not liable for any proven loss and or damages in as much
as the plaintiff attempted to prevent his wife from being
arrested,
resisted arrest and assaulted a member of the SAPS at a time when he
knew that it was dangerous to do so, but nevertheless
proceeded to do
so. The defendant pleads further in the alternative, that the
plaintiff's behaviour contributed to any proven loss
and or damages
suffered by the plaintiff and the plaintiff should accordingly be
held to be proportionally liable.
[6]
The defendant pleads further that the SAPS arrested the plaintiff
without a warrant, but denied that such arrest was unlawful
in
amplification thereof the defendant relies on the provisions of
Sections 40(1)(a)
and or
Section 40(1)(j)
of the
Criminal Procedure
Act.
[7
]
The defendant accepts that onus is on the defendant to prove that a
crime was committed in his presence when it relies on
Section 40(1)
(a) of the Act. The defendant admits that the onus rests on it to
prove that it used force in a justifiable manner in terms of
Section
49
of the
Criminal Procedure Act.
>
[8]
Plaintiff's case is that the defendant was not entitled to arrest him
as he was not resisting arrest. The defendant accepted
that the onus
rest on it to prove that the plaintiff was resisting arrest.
[9]
It is common cause that on the evening of 22 October 2006 members of
the SAPS stationed at Mossel Bay received a report that
a woman at
the Camelot restaurant and pub alleged that another woman had
assaulted her. Constable Tshwale and student Constable
Dearham went
to investigate at Camelot. They then spoke with Janet Malgas, the
wife of the plaintiff outside Camelot and she admitted
that she had
assaulted the complainant.
[10]
Constable Tshwale then placed her in the back of his van and told the
people standing nearby to inform her family that she
was been taken
to the police station.
Juan
Reynol Malgas
[11]
The plaintiff testified as follows: The plaintiff, who was a
disc-jockey inside Camelot, received a message that his wife was
in
the police van outside. He then proceeded outside where he found his
wife in the back of the police van. He tried to open the
door of the
van. Constable Tshwale told him that he could not open it. He asked
Constable Tshwale what was the reason for his wife
being kept in the
van, but he did not give any reason. According to the plaintiff,
Constable Tshwale then placed his hand on his
firearm and the
plaintiff asked him why he was doing that because the plaintiff had
not done anything threatening.
[12]
Plaintiff's version is further that student Constable Dearham handed
his pepper spray to Constable Tshwale. He said Constable
Tshwale then
sprayed him with the pepper spray in his face while he was asking
Constable Tshwale questions about his wife. At that
stage plaintiff
alleged that he lost his balance and he grabbed onto the front chest
part of Tshwale's shirt. He said that Tshwale
then moved backwards
and some of his buttons broke.
[13]
At this stage the plaintiff said that his friend, Shannon Kannemeyer,
came to fetch him and sat with him on the pavement nearby.
Plaintiff
said that student Constable Dearham came to speak to them but he
could not remember what Dearham had said. He said that
his eyes were
burning at that stage. He then saw that the police van drove off with
the back door open and he jumped up to tell
the police that his wife
was in the back, but then the bystanders informed him that his wife
was no longer in the back.
[14]
He went back inside the Camelot Restaurant where he was sitting at a
table. He had just ordered a beer, but before he could
drink it, he
heard that there were police entering Camelot and when he turned
around he saw the police. He felt someone pull him
by his right
shoulder at the back of the stool on which he sat. He said that his
feet were on the floor. He then landed on the
ground with his right
hand under his stomach and his left hand behind his back. He was
lying with his stomach facing down on the
floor. He alleged that the
police then pushed him down against the ground and his left arm was
then handcuffed.
[15]
He felt a pain in his ankle and when he informed the police about it
they sprayed pepper spray at him while he was lying on
the ground. He
said at that point Tshwale was busy turning his ankle to get him to
turn around onto his back. He said that he shouted
from the pain, but
the police said that he must not speak rubbish. He was lifted up by
the police because his arms were handcuffed
behind his back. He tried
to walk but he could not because of the pain.
[16]
Student Constable Dearham and another policeman picked him up and
carried him down the stairs to the police van. He was taken
to the
Mossel Bay Police Station. At the police station he had to sit in a
corner in a room. He said he was taken to hospital after
his wife
arrived and told the police that he needed medical attention. Before
the police stopped at the hospital, they drove around
for a while and
then stopped.
[17]
At the hospital, the doctor looked at him and sent him back to the
police station. Later he was taken back to the hospital
where x-rays
were taken. He was admitted to hospital and transferred to George
hospital where they operated on him. He remained
in hospital for 5
days before he was discharged. He said that his foot was in a cast
and he had to use crutches. He experienced
the incident as
humiliating as Camelot was full of people and it happened in the
presence of his employer.
[18]
He denied that he beat Constable Tshwale against his chest. He also
denied that he resisted arrest. He said that after he returned
from
hospital the first time, the police formally told him that being
charged for assault and resisting arrest.
[19]
He said that the officer that arrested him at Camelot was Constable
Alberts and he denied that Constable Alberts had read him
his rights
inside of Camelot. He said that Constable Alberts assaulted him while
he was being arrested inside of Camelot. He said
that the criminal
charges brought against him were withdrawn at Mossel Bay's
Magistrates Court.
[20]
During cross examination he admitted that it could have been illegal
to have tried to open the door of the van in which his
wife was
sitting had she been arrested. He however said that Constable Tshwale
did not give a reason why his wife was being kept
in the van and he
believed that she was not arrested. He said that he did not believe
that he could have been arrested for attempting
to speak to his wife
in the van.
[21]
He admitted that there were a lot of bystanders by the time he tried
to open the door of the van in which his wife was sitting.
He said
that the bystanders were merely curious and were not threatening. He
denied that there was any scuffle or argument that
caused Constable
Tshwale to use the pepper spray. He denied that his friends encircled
the police. He said approximately 15 minutes
after the incident
outside Camelot, the police came inside to arrest him. He said at
that stage he did not know why the police
were there.
[22]
He denied that he told Dr Perry Van Rooyen that during the fall he
twisted his ankle. He persisted with his allegation that
in fact it
was the members of the SAPS that had twisted his ankle.
Dr
Theo Le Roux
[23]
He is an orthopaedic surgeon who examined the plaintiff and compiled
a medical report of his injuries testified. He found a
bimalleolar
fracture of the right ankle in a bilateral and lateral direction. He
said that two screws were placed in the bilateral
malleolus and in
the lateral malleolus. He said that he could see the two screws that
were inserted in bilateral malleolus and
in the lateral malleolus.
[24]
The doctor said further that there was a horizontal fracture of the
bilateral malleolus and a skew fracture of the lateral
malleolus. He
said that the skew fracture is usually caused by an external rotation
movement of the ankle. For example, when the
foot is turned in an
outward direction. He said it could either be that the body was kept
stationary while the foot was turned
or the foot was kept stationary
and the body was turned. He said that only a rotational movement
could cause that injury. He said
that that type of injury occurs very
often in the soccer and rugby games because very often the foot
becomes stuck in the field
while the body moves in a rotation
direction.
[25]
He said if it happens in a fall, the foot has to be caught in
something like a hole. He believed that you do not usually have
ligament injuries by merely falling. He said that if the foot was
turned as alleged by plaintiff a reasonable amount of force would
have had to be exerted on it to have resulted in that injury. He said
it was actually the skew or diagonal fracture at the ankle
which
could not occur without a rotation movement.
Mrs
Janet Malgas
[26]
She said at the time of the incident she had been married to the
plaintiff for 7 years. She was at the Camelot restaurant and
pub from
the evening of the 21 October 2006 going over to the early hours of
the 22 October 2006. She admitted that an incident
occurred where the
police came and placed her in the van. She had slapped a woman in the
club. The woman then left and returned
with the police officers.
Constable Tshwale said she had to climb into the back of the van
which she then did. There was another
police official with him.
[27]
She was not told that she was being arrested. There were a lot of
people around the van at the time. Later, the van door was
opened and
she then climbed out. She saw the plaintiff sitting on the pavement
with his friend. She and a friend just walked away
after she climbed
out of the van. As she was walking she noticed that other police vans
were approaching the Camelot, but she did
not turn back. The police
station was about 100 metres away from Camelot.
[28]
She did not see the plaintiff being brought out of Camelot by police.
She heard from other people that he was taken to the
police station
and that he was injured. When she arrived at the police station, she
asked the police to have the plaintiff seen
by a doctor. She
accompanied him to the hospital. When she walked away after the
police van had been opened for her, she saw police
standing around
but nobody tried to stop her. She did not see or hear her husband try
to open the door of the van as she was sitting
with her back to the
door.
[29]
Before the police took her husband to hospital they drove around for
approximately 20 minutes because they alleged that there
was an
unruly crowd at the hospital. They then asked her to phone somebody
in the crowd and tell them to disperse. When she arrived
at the
hospital she only found her cousin and his girlfriend.
[30]
At this stage the plaintiff made an application to be recalled. He
was then cross examined about the allegation that would
be made on
behalf of the defendant that when a member of the South African
Police Services touched him on his shoulder to arrest
him inside
Camelot, he resisted.
[31]
The version of defendant that was put to him was that he resisted by
attempting to hit an officer but he was unsuccessful and
he was
brought under control by Sergeant Alberts who held him down before he
fell, he denied this version. The version that was
further put to him
was he and Alberts then both fell to the ground but he denied this
version too. He said that he was lying behind
a chair and somebody
was holding him down and after he said that his ankle was sore,
pepper spray was sprayed at him. At this stage
plaintiff then closed
his case.
Constable
Dearham
[32]
At the time in October 2006, he was a student constable but he is now
a truck driver. He confirmed that he and Tshwale approached
the
Camelot after receiving a complaint that the plaintiff's wife had
assaulted a woman in the parking area. He confirmed that
Tshwale
asked her to climb into the back of the van. He did not hear whether
Tshwale had arrested her. He saw the plaintiff come
down the steps
into the parking area where the van was, followed by a few people. At
the time they were closing the door of the
van.
[33]
Plaintiff wanted to open the door of the van straight away and asked
why they had his wife. Tshwale tried to explain the reason
but the
plaintiff kept approaching the van. Dearham and Tshwale tried to
block anyone from opening the door of the van. Dearham
felt the
situation was getting out of control because quite a big crowd had
gathered. He gave Tshwale his pepper spray and he used
it. He said
that the police can use it if they are in direct danger and to bring
people under control. There was nothing else that
they could have
done because they had used the minimum force. The plaintiff grabbed
Tshwale by his shirt, they moved away from
the van, the shirt tore
and he tried to help Tshwale. He tried to get Tshwale away and they
moved away. Thereafter he and Tshwale
got into the van and drove not
very far in an alley behind the shopping centre just to calm down and
decide what to do. They could
not just leave the situation as it was,
because they did use his pepper spray and so they called for backup
to prevent what happened
outside from happening inside when they
decided to go and arrest the plaintiff for assault and obstructing
justice.
[34]
The backup police vehicles arrived approximately 10 minutes later.
They had a short briefing. There was a female, Constable
Louw in the
parking area outside the Camelot. Dearham and Tshwale walked in front
inside Camelot with 10 to 15 police officers
following. They pointed
the plaintiff out to the other officers. Plaintiff was sitting by the
bar.
[35]
The officers moved closer to arrest him and the others formed a
shield around him. Constable Alberts effected the arrest. He
could
not say if Alberts was alone in effecting the arrest. He did not see
what happened during the arrest. Tshwale was part of
the shield of
policemen formed around the plaintiff. It took approximately 10
minutes to arrest him. While he was taking the plaintiff
out of the
pub, the plaintiff complained that his foot was sore then they picked
him up because he was handcuffed and could not
stand up by himself.
Alberts and Dearham carried him out of the club.
[36]
The situation was explosive and could have got out of hand if they
did not deal with it fast. At the police station they heard
a lot of
loud voices coming from the station. They discovered that there was a
crowd of people at the police station. He understood
that the crowd
was becoming riotous at the charge office. When everything calmed
down at the station, they took the plaintiff to
hospital but sent a
motor vehicle ahead of them to check if the crowd was at the
hospital. They asked the plaintiff's wife, Mrs
Malgas to call the
people and tell them to move away from the hospital because they were
only two officers taking the plaintiff
to hospital. They drove around
the hospital for a while.
[37]
Mrs Malgas confirmed that it was okay and they then went inside. The
doctor attended to plaintiff and said he was free to go.
They helped
him down the steps to the charge office back at the police station
and took him to the cells.
[38]
During cross examination he was asked whether he was aware that
common assault was not a Schedule One offence in terms of the
Criminal Procedure Act and
did not require that a suspect be arrested
without a warrant. He said that he did not know if it was a Schedule
One offence or
not. He believed that the offence was of a serious
nature and that if the complainant wanted to open a case it was
better that
they take the suspect namely, Mrs
Malgas
away. It was put to this witness that assault will only be a schedule
one offence when a dangerous wound is inflicted and
the witness
accepted this.
[39]
The witness also accepted that they could only arrest a suspect
without a warrant if the offence was committed in their presence.
He
could not say whether Mrs Malgas was under arrest at the time when
the plaintiff found her in the back of the police van. He
did not
concede that her arrest was unlawful. He confirmed that Tshwale did
not manage to explain to the plaintiff why his wife
was in the back
of the police van.
[40]
He felt threatened by the crowd and that is what prompted Tshwale to
use the pepper spray. If the crowd had not gathered, they
would still
have used the pepper spray because the plaintiff refused to move away
from the van when he was asked more than twice
to do so.
[41]
This witness agreed with plaintiff's version that when plaintiff
grabbed Tshwale's shirt, Tshwale moved away and therefore
the shirt
buttons tore in that process. He also recalls that Tshwale put his
hand on his firearm and plaintiff asked him do you
want to shoot me.
He admitted that the only time that the plaintiff grabbed Tshwale was
when he pulled the shirt after the pepper
spray was used.
[42]
He did not see the plaintiff hit Tshwale on the chest as stated in
Tshwale's statement to the police. He also did not see plaintiff
grab
Tshwale from behind his neck as Tshwale stated in his statement to
the police. His evidence largely conforms with plaintiff's
evidence.
He accepted plaintiff's version that he lost his balance and he was
confused and that is why he grabbed Tshwale by the
shirt. He denied
that pepper spray was used inside Camelot to overcome plaintiff's
alleged resistance to arrest.
[43]
He confirmed that he and Tshwale made no attempt to arrest the
plaintiff while he was sitting on the pavement. He agreed that
the
primary reason for arresting a suspect was to have the person brought
before the court. He agreed that there were other means
of bringing a
suspect to court such as issuing a criminal summons or a warning. He
and Tshwale saw it as an assault on a police
officer and that is why
they called for backup and why they used 10 to 15 policemen to arrest
the plaintiff in the nightclub. He
remained of the view that that was
what they were entitled to do even if the assault was only the
grabbing of Tshwale's shirt.
[44]
He was not near enough to hear Constable Alberts affect the arrest by
explaining the plaintiff's rights to him. He agreed that
the alleged
offence of assaulting Tshwale was committed in the parking area when
Alberts was not present and that Alberts therefore
could not arrest
the plaintiff without a warrant. He could not dispute that inside of
Camelot plaintiff was pulled back off the
chair by members of the
South African Police Service. At some stage plaintiff was on the
ground. He did not see what happened to
plaintiff on the ground. He
confirmed that if his attention was focused on patrons inside the
club, Tshwale could have turned the
plaintiff's foot and he would not
have been aware of it.
[45]
When he saw the plaintiff on the ground he was lying on his stomach
with handcuffs on. He confirmed the contents of his statement
to the
police but said in court that he could not remember seeing plaintiff
resisting arrest and he did not remember seeing Alberts
use pepper
spray inside of Camelot. He agreed that considering the number of
police officers present, any other officer could have
grabbed
plaintiff's arm to bring him under control and that the use of pepper
spray inside Camelot at the time of the arrest of
plaintiff was not
reasonable. He did not agree with the proposition that the police
made many assumptions and over reacted.
[46]
It was put to this witness during cross examination that at no stage
did the defendant raise in its plea as a justification
for its
conduct, that the crowd had been threatening. He also confirmed that
neither his statement nor that of Tshwale referred
to a threatening
crowd.
Sergeant
Riaan Alberts
[47]
The next witness to testify on behalf of the defendant was Sergeant
Riaan Alberts who was a reservist and a bodyguard at the
time. He
received a call to render backup at Camelot and he responded.
[48]
Tshwale explained that they were at Camelot to arrest a woman and
that her husband had an altercation with him. Tshwale was
in an upset
condition. His uniform was open and his buttons were broken. Several
other police also came to render backup assistance.
The police then
jointly decided to arrest the plaintiff for assaulting a police
officer and obstructing the police in the conduct
of their duties.
[49]
He confirmed that approximately 15 policemen entered the Camelot pub
and restaurant. The owner tried to stop them from entering.
According
to this witness, Tshwale pointed out the plaintiff inside Camelot.
The music was loud, there were lots of people who
were dancing and
the place was chaotic. They split up into two groups and approached
the plaintiff from two sides. A black sergeant
was the first to reach
the plaintiff and the plaintiff sat with his back to the police.
[50]
The sergeant touched the plaintiff on his shoulder and the plaintiff
turned around and tried to land a fist blow on the sergeant.
Alberts
then grabbed the plaintiff from behind and held him to get him under
control. Plaintiff struggled with Alberts, broke loose,
gave Alberts
one or two blows and jumped forward. He then grabbed the plaintiff
from the front and they struggled further but he
could not say how it
happened that both of them fell and landed on the ground where they
continued to struggle. He did not let
go of the plaintiff on the
ground. He fell backwards and they both landed on their sides. They
lay next to each other on the ground.
He could not say which police
officer then handcuffed the plaintiff. The crowd was curious.
[51]
He denied that Tshwale was involved with the arrest inside Camelot.
He asked one of the policemen to spray pepper spray at
the plaintiff.
He only realised that the plaintiff's ankle was injured when they
were moving outside. It was possible that the
plaintiff was injured
in the fall. Everything happened within 5 minutes. He did not read
the plaintiff his rights inside Camelot
because it was noisy and only
did so outside when he told him that he was under arrest.
[52]
He confirmed that the crowd had moved to the police station and later
to the hospital. The plaintiff did not want to stop struggling
in
resisting and that was why he asked for the pepper spray. He
confirmed that the plaintiff was not handcuffed when he used the
pepper spray. He said that the plaintiff had assaulted the sergeant
that arrived by him first, inside Camelot and that he accordingly
arrested the plaintiff because he had assaulted a police officer in
his presence.
[53]
He confirmed that the plaintiff was never charged with assaulting the
black sergeant in inside Camelot. He confirmed that in
fact the
plaintiff was charged with assaulting Tshwale earlier outside
Camelot. He admitted that initially they entered Camelot
to arrest
the plaintiff for the altercation between him and Tshwale earlier. He
later said that it was not the intention of the
15 policemen that
went inside Camelot to arrest the plaintiff but merely to bring him
outside. They wanted to bring him outside
so that Tshwale could
arrest him. He then further said that when the black sergeant inside
Camelot put his hand on the shoulder
of the plaintiff, the plaintiff
turned his head and gave the sergeant a blow which caused him to fall
onto the ground.
[54]
It was put during cross examination to him that it is unlikely that
plaintiff was in a sitting position with the bottom half
of his body
bent forward who could have landed such a blow to the sergeant that
he would have fallen onto the ground. The witness
responded by saying
that by that stage, the plaintiff had stood up. This information was
mentioned for the first time during cross
examination.
[55]
He said that while they were struggling with each other, plaintiff
attempted to land a few blows at him but he was unsuccessful.
It was
put to him that it was unlikely that the plaintiff would have
attempted to attack Alberts and the black policeman when he
was being
encircled by 13 other police officers. He denied that when they were
struggling on the ground the plaintiff was lying
on his stomach. He
first said that if another police officer was twisting the foot of
the plaintiff he would have seen it. He then
later admitted that he
would not necessarily have seen it because he would not have been
looking at the feet.
[56]
He admitted that in his statement to the police, he did not mention
that the black sergeant had first approached the plaintiff
and that
the plaintiff had assaulted him. He could give no explanation as to
why his arresting statement for the plaintiff refers
to the assault
on the police officer as being the assault on Tshwale. He also
admitted that in his statement, no mention is made
of the allegation
that he made in court, that the plaintiff freed himself from the grip
of Alberts and attempted to assault him.
[57]
It was put to this witness that the advocate for the defendant had
indicated that Alberts sat on top of the plaintiff, but
now this
witness had said that they fell on the ground next to each other. He
could give no explanation for that discrepancy. He
could not
establish who the black sergeant was and that is why he was not
called in as a witness in this case. He agreed that the
explosive
situation inside the club could have been caused by the 10 to 15
policemen being present inside the club.
[58]
It was pointed out to this witness, that during cross examination it
was not put to Mrs Malgas that she telephoned people who
were
allegedly in the hospital and asked them to leave the hospital.
Mr
N T Tshwale
[59]
He testified on behalf of the defendant. Mr Tshwale was a police
constable in October 2006. He confirmed his statement to
the police.
[60]
Mr N T Tshwale testified that on Sunday, 21 October 2006 while on
duty, he received a complaint on the police radio that
there was
fighting at the Camelot club. He went to the club with student
Constable Dearham. He met Mrs Hector, the complainant
who said that
she was assaulted by Mrs Malgas, the plaintiff's wife Mrs Malgas who
confirmed that she had assaulted Mrs Hector.
[61]
He said that he was going to arrest her for assault. He took her to
the patrol van and while putting her in the back of the
van, the
plaintiff came from behind and grabbed him by his police shirt and
pulled him back. He turned and saw that the plaintiff
was drunk. He
sprayed the plaintiff with pepper spray to calm him down because he
was aggressive towards Tshwale. When he pulled
his shirt, the
plaintiff tore his buttons. He said the plaintiff further hit him on
the chest with his fist. He said that he
did not wish to fight with
the plaintiff and so he left everything and went away to call for
backup. He said that the plaintiff
did ask him why he was arresting
his wife after he had been sprayed with pepper spray.
[62]
After the altercation between him and the plaintiff, Mr Tshwale
realised that Mrs Malgas was no longer in the back of the
van. He
did not take any further steps against Mrs Malgas because he said
she was already gone. He decided to call for police
backup because
he wanted to arrest the plaintiff for assaulting him. He did see the
plaintiff going up into the pub after the
altercation and there were
lots of people with him. When he went into the club with the police
backup, he did so because he wanted
to arrest the plaintiff for
assaulting him. Once he was inside the club, he saw Constable
Alberts approach the plaintiff, but
at that stage people in the club
stood up and he felt threatened so he went to stand outside. When
the scuffle occurred between
Constable Alberts and the plaintiff
inside the club, he was no longer there.
[63]
He denied the plaintiff's allegations that he was physically
involved in the plaintiff's arrest. He denied twisting the
plaintiff's leg. At the time when he and the rest of the police
backup approached the club, he told them that he did not want
to be
involved in the arrest because he would be a complainant.
[64]
When Alberts approached the plaintiff inside the club, this witness
said that he did not have a clear view so he was not
sure if Alberts
grabbed the plaintiff from behind or from the side.
[65]
During cross examination this witness retracted some of his evidence
in chief. He said that he may have put his words incorrectly
in
chief when he said that he saw Alberts grab the plaintiff when the
people stood up. He now said that once he pointed out the
plaintiff,
the people stood up. He was not sure whether
Constable
Dearham was inside at the time. He denied Constable Dearham's
evidence that he, Tshwale, was part of the shield of policemen
surrounding the plaintiff.
[66]
When he was questioned about why he thought it was necessary to
arrest Mrs Malgas for assaulting Mrs Hector, he said that
he was
still studying and if he was not sure of the charge, he generally
arrested a suspect.
[67]
During cross examination he was asked why he thought that the
plaintiff was drunk when he grabbed him allegedly from behind.
His
response was that because the plaintiff came from the club, he
thought he was drunk. He also said that because the plaintiff
was
with his wife who was drunk, he assumed that the plaintiff was
drunk. He further said that when the plaintiff grabbed him,
the
plaintiff was not moving nicely and therefore he thought he was
drunk.
[68]
It was then put in cross examination to this witness that his
advocate did not put it to plaintiff when he cross examined
him,
that he was not sober. He confirmed that he did not mention in his
statement to the police that the plaintiff was drunk.
He explained
during cross examination, that he used pepper spray on the plaintiff
as a means of self-defence because the plaintiff
approached him from
behind and fought with him. He denied that Constable Dearham gave
him his pepper spray as alleged. He denied
that the plaintiff tried
to open the back of the van. He denied that the plaintiff grabbed
him by his shirt in front and that
he moved back and his buttons
broke.
[69]
He was then further questioned about why in his statement to the
police he alleged that the plaintiff was resisting arrest
when
Alberts was trying to arrest him yet in court he said that he did
not see Alberts effect the arrest as he walked outside
of the club.
His response was that Alberts told him after the arrest that the
plaintiff was resisting arrest and that is why
he wrote that in his
statement. He said that the same answer applied to the question
about why he said in his statement that
Alberts used pepper spray.
It was then put to him that he was in the club at the time when the
plaintiff was arrested and he
therefore saw the use of pepper spray,
but he denied this allegation.
[70]
He mentioned in his statement that the plaintiff was handcuffed when
Alberts was trying to arrest him inside Camelot because
that is what
Alberts told him. He was then questioned about why he did not say in
his statement to the police that he had left
the club and did not
see the major events unfolding inside the club. He could give no
reasonable explanation for this.
Evaluation
[71]
Based on the evidence adduced at court it is clear that members of
SAPS made no attempt to arrest Mrs Malgas after she left
the back of
the police van and made no attempt to arrest the plaintiff after he
was sprayed with pepper and went to sit on the
pavement outside
Camelot. To the extent that the defendant's version as to the need
to use pepper spray outside the Camelot club
varies, I am of the
view that the defendant has not discharged the onus of proving that
it was reasonable to use pepper spray
outside the Camelot club.
[72]
It is common cause that the police used pepper spray inside the
Camelot club when the plaintiff was being arrested. The reason
for
using pepper spray then was because the plaintiff allegedly resisted
arrest while lying of the ground with Constable Alberts
restraining
him and while encircled by some 14 other police officers. The reason
advanced by Constable Alberts for using pepper
spray at that stage
does not accord with the probabilities.
[73]
Constable Alberts evidence also includes the allegation that while
the plaintiff was lying on the ground with Constable Alberts,
he was
handcuffed. He also confirmed the plaintiff's allegation that his
foot was injured while he was lying on the ground.
[74]
In circumstances such as those, other means could have been used to
restrain the plaintiff. Clearly the plaintiff was eventually
restrained by the use of handcuffs. The plaintiff's mobility must
have been hampered by the injury he sustained to his right
ankle at
the time. Given the number of police officers available to assist
and in close proximity, it is more probable than not,
that
sufficient police officers could have restrained the plaintiff. I
accordingly find that the use of pepper spray both inside
and
outside the Camelot club was not reasonable and justifiable in the
circumstances.
[75]
In the light of the fact that Constable Alberts testified in court
only about the allegation that the plaintiff assaulted
an
unidentified black sergeant immediately prior to Alberts reaching
the plaintiff to arrest him and in the light of the fact
that the
charges preferred against the plaintiff initially before they were
withdrawn related to an allegation that the plaintiff
assaulted
Constable Tshwale and not that he assaulted an unidentified
policeman, Constable Alberts was clearly not entitled to
arrest the
plaintiff in terms of
Section 40(1)(a).
This is because
Section
40(1)(a)
provides that a police officer may arrest a suspect without
a warrant if that person commits or attempts to commit an offence in
his presence. Clearly the alleged assault on Constable Tshwale did
not happen in the presence of Alberts.
[76]
To the extent that the defendant also relies on the provision of
Section 40(1)(j)
which provides that a police officer may arrest a
suspect who wilfully obstruct him in the execution his duties, I
will deal
with that allegation as follows: The authorities make it
clear that the obstruction of a police officer in the execution of
his
duties must be a wilful obstruction which effectively renders a
police officer unable to execute the particular duty that he was
about to execute or that he was in the process of executing. [See:
Morapedi
v Springs Municipality
1946 TPD 105
at 109].
[77]
The evidence advanced by the defendant is that outside the Camelot
club the plaintiff approached the back of the van with
the intention
of freeing his wife from the van. The evidence is further that
Constable Tshwale held the plaintiff's wife for
common assault. The
evidence of Constable Tshwale is that the plaintiff effectively
grabbed him from behind thereby preventing
him from keeping Mrs
Malgas in the van.
[78]
Neither Dearham nor Tshwale testified that Mrs Malgas left the
police van as a result of the conduct of the plaintiff. Neither
pursued Mrs Malgas as one would expect police officers to pursue a
suspect who had escaped arrest.
[79]
Tshwale did not allege that as a result of the plaintiff allegedly
grabbing him from behind, Mrs Malgas was able to escape.
Tshwale did
also not allege that as a result of plaintiff grabbing him from
behind, he could not continue with the arrest of
Mrs Malgas or that
he was obstructed in the arrest of Mrs Malgas. As the allegation
concerning the plaintiff's alleged obstructing
Tshwale and Dearham
in the execution of their duties relate to them allegedly being
obstructed from arresting and removing Mrs
Malgas, the defendant has
led no evidence to explain how the "obstruction" prevented
the arrest and removal of Mrs
Malgas.
[80]
The evidence advanced on behalf of the defendant suggests that after
the plaintiff was sprayed with pepper spray his alleged
obstruction
stopped. I can accordingly find no basis for concluding that
plaintiff was arrested because he obstructed Tshwale
and Dearham
from arresting Mrs Malgas.
Section 40(1)(j)
can accordingly not be
raised as a justification by the defendant for the arrest of
plaintiff.
[81]
If anything, based on the evidence of Dearham and Tshwale, it would
seem that the existence of the curious crowd that had
gathered
around the van in which Mrs Malgas was held was the reason for Mrs
Malgas being able to climb out of the police van
and walk away. The
actions of the crowd can hardly be attributed to the plaintiff.
[82]
The police docket handed in as an exhibit at the trial reflect two
charges brought against the plaintiff which were subsequently
withdrawn namely: charge 1, that of assaulting a police officer and
the particulars there relate to the alleged assault on Constable
Tshwale and charge 2, resisting arrest. Although the defendant in
its plea, states as a justification for arresting the plaintiff,
the
charge of obstructing a police officer in the execution of his
duties, the docket refers to the charge of resisting arrest.
The
statement of Constable Alberts in the police docket refers to the
charge of resisting arrest as follows:
"Met
my aankoms het ek verneem dat Konstabel Tshwale en Konstabel Dearham
gepoog het om n mans persoon te arresteer waarop
hy verset het en
vir Konstabel Tshwale aangerand het."
[83]
Further in his statement he says the following:
"Toe
ek hom wou arresteer het hy homself erg verset en ook n hou na my
geslaan. Ek het gekoes en die man se hande agter sy
rug vas gedruk.
Met ons gestoeiery het ons op die dansbaan geval maar waar ek hom
geboei het"
[84]
By contrast neither the statements of Tshwale nor that of Dearham
referred to the plaintiff as resisting arrest outside Camelot
club
at the time when he allegedly grabbed Tshwale's shirt.
[85]
The plaintiff denied that he resisted arrest inside Camelot. It is
clear from the evidence of Tshwale that he was extremely
angry at
the fact that the plaintiff had earlier grabbed him by the shirt
causing his buttons to break. The evidence of Dearham
that he and
Tshwale decided to call for backup because Tshwale regarded the
grabbing of his shirt and breaking of his buttons
as an assault on
him differs from Dearham's further evidence in court that the
buttons broke as a result of plaintiff grabbing
Tshwale by the shirt
after Tshwale had sprayed pepper spray into his face. Dearham also
admitted that plaintiff grabbed Tshwale's
shirt because he was
clearly disorientated by the pepper spray.
[86]
Dearham further gave evidence that he and Tshwale decided to call
for backup and have the plaintiff arrested because they
could not
simply leave the issue as they had used pepper spray. This evidence
is interesting in as much as it is not clear whether
they decided to
proceed to arrest plaintiff because they believed he had assaulted
Tshwale at the time or because they had used
pepper spray and had to
account for the use of the pepper spray. Dearham's evidence in court
that he does not believe that Tshwale
was being assaulted does not
explain why they decided to arrest the plaintiff.
[87]
Tshwale's evidence that he intended to have the plaintiff arrested
but did not wish to do it himself is not supported by
Alberts who
said that he intended to merely bring the plaintiff outside Camelot
so that Tshwale could arrest him. Both these
witnesses lose sight of
the fact that if Tshwale was indeed assaulted by the plaintiff
earlier, Dearham who was present could
have arrested the plaintiff
in terms of
Section 40(1)(a)
of the
Criminal Procedure Act. This
was
however not the evidence of Tshwale, Dearham or Alberts.
[88]
What is clear from the evidence of all the police officers that
testified, is that clearly the police intended to punish
the
plaintiff for the fact that Tshwale was grabbed by his shirt and his
buttons were broken. In so doing, they embarked on a
cause of action
which was excessive and unjustifiable in the circumstances. It was
excessive to enlist the aid of some 15 police
officers merely to
bring the plaintiff outside the club.
[89]
There was no evidence that the crowd that had formed outside the
club when Mrs Malgas was in the van and the crowd that was
inside
the club was threatening in any physical or verbal manner. The only
evidence is the unsupported and unjustified perception
of Tshwale
that he felt unsafe inside the club. There is also no evidence to
suggest that the plaintiff enlisted the aid of the
crowd outside the
club nor any evidence to suggest that police were reasonable in
their anticipation that the crowd might assist
the plaintiff in
resisting arrest inside the club.
[90]
The police officers that testified were clearly untruthful in their
explanation about how the plaintiff's right ankle could
have made a
rotational movement that caused the injuries that he sustained. They
merely seek to justify their aggressive conduct
in arresting the
plaintiff in terms of
Section 40(1)(a)
or
Section 40(1)(j)
when
Alberts who effected the arrest had no authority to arrest the
plaintiff for either offence. I accordingly find that the
arrest of
the plaintiff was unlawful.
[91]
It follows that if the arrest of the plaintiff was unlawful his
alleged resisting of such arrest was lawful. To the extent
that he
may have resisted arrest, the plaintiff was accordingly justified in
so doing. [See
Morapedi
v Springs Municipality supra].
[92]
In paragraph 3.1.2 of the particulars of claim the plaintiff alleged
that he was unlawfully assaulted by members of the South
African
Police Services whilst he was in the bar area of the Camelot
restaurant by being grabbed and thrown to the ground. In
paragraph
3.1.1 he says that he was unlawfully assaulted whilst he was in the
parking area adjacent to the Camelot restaurant
by being sprayed in
the face and eyes with teargas. Neither of these allegations relate
to the plaintiff being unlawfully assaulted
by being sprayed with
teargas or pepper spray inside Camelot at the time when he was
arrested.
[93]
The court can however find that the members of the South African
Police Services had assaulted the plaintiff outside Camelot
restaurant by spraying pepper spray on him as this was the
allegation made by plaintiff and acknowledged by the witnesses for
the defendant.
[94]
The plaintiff's conduct in approaching the van in which his wife was
being held was not of a nature where he ought to have
anticipated
that he would have been arrested and assaulted by the police later
inside Camelot restaurant. Neither Tshwale nor
Dearham testified
that the plaintiff grabbed hold of the handles of the back of the
police van and tugged at it or used any physical
force to have his
wife released from the van. Such conduct may well have justified the
use of pepper spray. A mere approach to
the police officer and a
request for information as to the arrest of his wife could not lead
to the plaintiff anticipating the
use of pepper spray or his
subsequent assault inside the restaurant. Once the plaintiff went on
to argue with Tshwale about why
the latter was touching his firearm,
the exchanges between Tshwale and the plaintiff clearly became more
hostile. Such hostile
exchanges would not necessarily result in a
reasonable police officer spraying pepper spray in the face of a
person such as the
plaintiff.
[95]
Tshwale merely testified that the pepper spray was necessary to calm
the plaintiff. Tshwale did not explain in which way
the plaintiff
behaved that he required too be calmed. What Tshwale did say was
that the plaintiff grabbed him from behind and
then hit him on his
chest with his fist. That evidence is not supported by Dearham who
was clearly present and observing the
exchanges between Tshwale and
the plaintiff. Given the use of pepper spray and the subsequent
injury to the plaintiff, it is
not inconceivable that Tshwale
embellished and exaggerated plaintiff's conduct to justify his
subsequent conduct.
[96]
Tshwale remains a single witness on the plaintiff's alleged assault
on him. In those circumstances, there is no basis for
concluding
that the plaintiff ought to have foreseen the injuries that he would
later have sustained and acted negligently or
recklessly despite
that knowledge or foresight. I can accordingly find no contributory
negligence on the part of plaintiff.
[97]
Alberts is a single witness about plaintiff allegedly assaulting an
unidentified police officer inside Camelot, plaintiff
was not
charged with such assault and Alberts' statement does not contain
particulars of such an assault. This court cannot conclude
that such
an assault took place.
[98]
In the light of the fact that plaintiff had earlier been sprayed
with pepper spray in the face and that he believed such
conduct to
be unjustifiable, the presence of 15 policemen approaching him in
the club would certainly have raised his anticipation
of further
harm. As none of the 15 policemen tried to speak into plaintiff's
ear, given the noise in the club, and to explain
that he was being
confronted for the earlier events that transpired outside, plaintiff
would clearly have had no idea why he
was being approached by 15
policemen.
[99]
Alberts did not explain why more than one policeman could not have
approached plaintiff and asked him to accompany them outside.
This
court can find no explanation for Alberts' high handed approach of
physically grabbing plaintiff and scuffling with him
to the point
where they both fell to the ground. In those circumstances it cannot
be that plaintiff voluntarily assumed the risk
at the time when he
was approached by Alberts who grabbed him physically.
[100]
Section 49(1)
of the
Criminal Procedure Act provides
as follows:
"If
any person authorised to arrest or assist in arresting another
attempts to arrest such person and such person (a) resists
the
attempt and cannot be arrested without the use of force or (b) flees
when it is clear that the attempt to arrest him is being
made or
resist such attempt and flees the person so authorised may in order
to effect the arrest use such force as may in the
circumstances be
reasonably necessary to overcome the resistance or to prevent the
person concerned from fleeing."
[101]
In the case of
Motswana
v MEC for Safety and Security
2008 (1) SACR 404
(NC)
a
police officer had been accused of using a police dog to arrest a
suspect while he could effectively have apprehended the suspect
by
asking his colleagues who were on the scene to assist him. The court
held in that case that the risk of injury by using the
police dog
far exceeded the risk of injury from the physical overpowering of a
person by a number of police officers. The court
found the policemen
had not used that method of apprehending the suspect which would
have involved the least risk of injury to
the suspect.
[102]
In the case of
Govender
v Minister of Safety and Security
2001 (2) SACR 197
(SCA) at 204j to
205a
the
court found that the criterion which questions whether the suspect
posed a threat or danger of serious physical harm was a
sound
approach. The court also held that the proportionality of the force
to be allowed in arresting a suspect had to be determined
not only
by the seriousness of the offence but also by the threat or danger
posed by the suspect to the person arresting him,
to others or to
society at large. In that case the court decided to apply the
constitutional test where the question was asked
when is a statutory
provision allowing the wounding of a fleeing suspect under certain
circumstances reasonable and justifiable
in an open and democratic
society based on freedom and equality.
[103]
In applying that test the court therefore increased the test of
proportionality to include not only the seriousness of the
offence
and the force used but also to look at the nature and degree of the
force used and the threat posed by the suspect to
the safety of the
police officers and other people as well as society at large. As the
reasonableness of the arresting officer's
actions must be considered
objectively, his view of how much force was necessary cannot be
relevant.
[104]
The court will approach each case on its own merits. If one looks at
the provisions of
Section 40(1)
it is clear that
in
casu
Alberts
was not the person authorised under the Act to arrest the plaintiff.
When one views
Section 49(1)
, the question arises whether the
plaintiff could not have been arrested without the use of force. It
is by no means clear from
the evidence of Alberts that the plaintiff
could have been arrested without the use of force. Alberts is not
only a single witness
but his credibility concerning the events that
unfolded inside Camelot are seriously in question as he contrived a
version that
the plaintiff had assaulted an unidentified black
police sergeant prior to Alberts arresting him.
[105]
The nature and the circumstances surrounding the alleged assault on
Tshwale clearly would have made the alleged offence
of plaintiff not
a particularly serious one. Alberts gave no evidence to suggest that
it was not possible for several police
officers to hold plaintiff
while explaining to him that he should accompany them outside. I am
accordingly not convinced that
it was reasonable
and
necessary in the circumstances for Alberts to grab plaintiff and
wrestle with him until they both fell to the ground.
[106]
I accordingly order that the defendant is liable to the plaintiff
for the injuries that he sustained in the Camelot restaurant
and pub
as alleged by plaintiff. I also order that the defendant shall pay
plaintiffs costs including the qualifying cost of
the expert
witness, Dr Theo Le Roux and that plaintiff and his wife Janet
Malgas are declared necessary witnesses.
ALLIE,
J