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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN THE HIGH COURT OF SOUTH AFRICA

(WESTERN CAPE DIVISION, CAPE TOWN)

                                                                                           Case Number: 17424/2011

In the matter between:

SAMMY P LEUTLWETSI                                                                                                     Plaintiff

and

MINISTER OF POLICE                                                                                                     Defendant

Delivered: 29 January 2018

JUDGMENT

BOQWANA, J

Introduction

[1] The plaintiff instituted an action against the defendant, claiming damages in the amount of R 5 000 000.00, in respect of an alleged unlawful arrest and assault.  At the outset, parties advised the Court that the matter will proceed both on merits and quantum.

[2] The quantum claimed comprised:

[2.1] Past loss of earnings – R1 1150.00

[2.2] Future loss of earnings – R8 850.00

[2.3] Past hospital and medical expenses – R10 000.00

[2.4] Future hospital and medical expenses – R12 000.00

[2.5] General damages for pain and suffering, depravation of liberty, loss of amenities of life and shock – R4 758 000.00

[2.6] Contumelia and impairment of dignity – R200 000.00

[3] The plaintiff has since abandoned the claims for past and future loss of earnings, as well as past and future medical and hospital expenses, and reduced the general damages claimed to R378 000.00.

[4] The plaintiff testified in his case and also called three witnesses, namely, Noluthando Sidzumo (‘Sidzumo’), Cheryl MacKlay (‘MacKlay’) and Mandla Sibeko (‘Sibeko’), whilst the defendant called Linda Tolbadi (‘Tolbadi’), Albert Jamjam (‘Jamjam’) and Monde Mfeya (‘Mfeya’). 

Plaintiff’s evidence

[5] The plaintiff testified that he was 36 years old and resided at no.[…], NY […], Gugulethu.  On Thursday 20 November 2008, sometime after 12:00 in the morning, he was arrested in his room situated outside the main house, in the presence of his girlfriend, Sidzumo, by members of the South African Police Service (‘SAPS’).  He testified that whilst he and Sidzumo were sleeping, he heard the door being kicked.  It transpired that the door was kicked open by the police who entered the room carrying firearms.  The television set in his room was on, but the lights were off.  The police entered with torches, which lit up the room.  None of them were dressed in police uniforms.  Without identifying themselves, they started asking him why he [and others] took “the old age” money.  They then put a plastic bag over his head, which they squeezed tight around his face, making it difficult to breathe.  Whilst they were doing this, they were kicking him.  His girlfriend would have seen what was happening.  The plaintiff passed out and when he regained consciousness he was inside a Condor motor vehicle.  He was handcuffed, with his hands behind his back. The handcuffs were tight and the police continued to tighten them even further, so as to cause pain.  He sustained injuries on his left wrist.  He showed a linear blackish scar of less than 5 cm to the Court, which he alleged was the injury caused by the handcuffs. 

[6] He noticed that there were other men in the vehicle.  There were a lot of police officials present.  None of the vehicles were marked as police vehicles and they were white in colour.  He was taken to the Bellville South Police Station.  Once there he and another person, known as Power, whom he knew as residing at Tambo Square, were taken to a room where they were assaulted by police officials.  Power was the first to be handcuffed and they ordered him to stand on his knees.  The police put a plastic bag over Power’s head, in the same manner as they had done to the plaintiff when they assaulted him at his home.  They then told the plaintiff to watch as they ordered Power to lie on his stomach, whilst they sat on his back holding the plastic bag from behind and tightening it. He could remember two of the officials involved: Tolbadi, the Investigating Officer (who had also been involved in the incident earlier at his house) and a gentleman wearing spectacles.

[7] Whilst Power was on the floor, the plaintiff was also instructed to stand on his knees; however he was not handcuffed, he was told to watch.  Even though the plaintiff was not restrained at this point, he was unable to escape, as the exit was blocked by burglar bars. Power then revealed that he [and others] had broken into a place in Table View.  The police told the plaintiff to pray. Power was ordered to sit on the chair and was given a drink.  The plaintiff was then ordered to lie on his stomach and was tortured in the same manner as Power had been. The torture continued until daybreak, as a result of which he was sore and his hands were swollen, but he did not sustain any bruises.  Throughout this ordeal he fainted several times, and was on each occasion revived by having water poured over him.

[8] Thereafter his fingerprints were taken.  He and Power were then placed in a cell which was approximately 5 x 8 metres in size and occupied by about 15 people.  It had one window with burglar bars.  It had mattresses which, at night, they would put together so that everyone could have a place to sleep.  He could not sleep as he was in pain. 

[9] At around 5 or 6 o’ clock in the morning he informed a police captain that his swollen hands were causing him much discomfort and that he had difficulty eating.  The captain indicated that he would investigate, but subsequently informed him that as he had been arrested for a serious matter, the captain could not assist him.  No other assistance was forthcoming. His hands improved about three weeks later, while he was detained in Pollsmoor.

[10] On Sunday 23 November 2008 he was interviewed by Investigating Officer Tolbadi and informed that he had been arrested on account of his fingerprints having been found on a Volkswagen Jetta 4.  It was alleged that he had driven this vehicle and had provided transport to an unnamed person, who had then committed a robbery.  He was charged and his first court appearance was Monday 24 November 2008, with Tolbadi in attendance.  In court he was informed of his right to legal representation and was given 7 days to arrange for same.  His family and his girlfriend arranged for Ms Sharon Williams (‘Ms Williams’) to represent him.  The matter was then postponed for a bail hearing.

[11] Approximately a month later a formal identity parade was held, with Tolbadi and Ms Williams in attendance.  It was communicated to him that he had not been identified at the parade.  Sometime in early 2009 his bail application was heard, at which point it came to light that the fingerprints in the vehicle were not his, though it was not revealed to him to whom it did belong.  The application was postponed again, as it appeared that he had another pending matter in Paarl.  At this point Ms Williams’ mandate was terminated and Advocate Pienaar stepped in.  During a further bail hearing in April 2009, he finally had an opportunity to inform the court of how he was arrested.  Bail was granted in the amount of R1000, though he no longer has the bail receipt, as the money was paid back after the case was withdrawn.  According to the plaintiff the magistrate wanted to withdraw the matter, saying it had no merits.

[12] The case was sent to Wynberg Magistrate’s Court, where, after several postponements, it was finally withdrawn in 2012.  While the State wanted to proceed with the case, none of the nine people in attendance knew him, resulting in the withdrawal.  His ordeal has left him traumatised and fearful of the police.  He occasionally dreamt of the incident, but was not currently receiving any counselling.

[13] In cross examination the plaintiff testified that while he knew where the Ikwezi Community Centre (‘Ikwezi’) was, as it was close to where he lived in Gugulethu, he did not know anything about a robbery there.  On the night of 13 November 2008 while he and his girlfriend were asleep at his home, at approximately 6 to 7 o’ clock, he had been woken by gunshots.  He was later informed by some of his family members, who had gone to investigate the gunshots, that there had been a robbery.  Furthermore he knew nothing about a white Volkswagen Jetta 4, which had allegedly been hi-jacked in the vicinity of Newlands or Bishops Court prior to the robbery.  He stated that he knew Lulama Mpambo (‘Mpambo’) – who was referred to variously as ‘Mpanzo’ and ‘Mpango’ by counsel and other witnesses – as they had grown up together and lived opposite one another.  He confirmed that there had not been any animosity between them, but that Mpambo had been untruthful in her statement to the police, as he had not been involved in the robbery and had not given Mpambo a lift on the morning of 13 November.  He indicated to the Court that his room in his home was about 6 x 6 metres in size (by object reference in court), but maintained that he knew nothing of measurements.

[14] He denied that the police knocked at his door on the day of his arrest, and maintained that they just kicked the door in.  He stated that he would have heard if they had knocked (even if he was asleep).  He never saw any flying squad, the presence of which was suggested on behalf of the defendant.  When he woke up in his room he was dizzy, there were a lot of people and they were making noise. The police said that the light in the room must be switched on.  He was surprised to see himself being lit up by torches and having firearms pointed at him.  The police kicked him in his chest and stomach, causing him to be short of breath.  They then asked him to stand up from the bed.  He seemed to concede that the police did not kick him when he was lying on the bed; they wanted him to get up.  He was asked how it was possible that the police could kick him in his chest whilst standing, to which he stated that they kicked him on his feet whilst he was standing.  He could not explain how they kicked him in his chest while he was standing, but maintained that he did not know but they kicked him.  The police slapped and kicked him in his room. 

[15] He conceded that there had been no marks on his face or body from being slapped and kicked. He conceded further that the only things he complained about to the captain were that his hands were sore or swollen because of the handcuffs, and that he had difficulty swallowing because his throat was sore since he had been throttled or strangled. 

[16] He seemed to think that he had been handcuffed from past after 12:00 at his home, until dawn, at about past 5 or past 6. When it was put to him that he did not tell the magistrate that he was allegedly assaulted by the police, his answer was that the magistrate never asked him that.  It was also put to him that he did not tell the prosecutor that he was assaulted by the police; his answer was that he did not get a chance to speak about that with him.  He conceded that whilst he was facing the charges in relation to the attempted robbery at the Ikwezi, he had another pending matter regarding possession of a firearm.  The firearm case was subsequently withdrawn. 

[17] It was put to him that the case regarding the firearm was withdrawn because the State wanted to centralise the charges, as the firearm was allegedly used to commit several offences stretching from Port Elizabeth to Grabouw, as well as several places in Cape Town, and that that was why Tolbadi opposed bail in the attempted robbery at Ikwezi.  The plaintiff testified that he did not know about those facts, but that the case that involved the firearm was run at the same time as the case of the attempted robbery at Ikwezi. 

[18] Sidzumo testified that she and the plaintiff were in a relationship from 2006 to 2012 and that they have a 6 year old child together. On 13 November 2008 they were still dating. She first heard about the robbery when police came to the plaintiff’s house.  On 13 November 2008, she and the plaintiff were woken up by shots.  At the time, she was supposed to go to work.  She went outside to go and fetch some water, preparing to take a bath.  The plaintiff’s sister and father informed her about the robbery.

[19] The plaintiff then took her to the terminus, since she was going to work.  When she arrived at work in Claremont she received three “please call me” messages from the plaintiff’s phone number.  She called him to ascertain the reason for the messages.  He told her that the police had been at his place and that they wanted to take him to the station, as they alleged he had been involved in a robbery.  The plaintiff suggested that she come back from work and accompany him to the police station to confirm that they had been together that night.  She did not go to the police station.  She phoned the plaintiff again later, who then told her that she did not have to come.  She seemed to think that the plaintiff went to the police station with his sister.

[20] She went to the plaintiff’s house and found that the police had kicked the door down.  The plaintiff informed her that he had gone to the police station and had been told that the police made a mistake by going to his house. 

[21] In regard to the events of 20 November 2008, Sidzumo testified that she had been asleep [at the plaintiff’s home], that the lights had been off, but that the TV was on, as they did not usually switch it off.  She was woken up by the doors being kicked in and torches being shone on them. The police had kicked the door open and wanted to know from the plaintiff whether he was known as Sammy.  There were a lot police, but she was too shocked to count them.  They were wearing normal clothing and some wore bullet-proof vests.

[22] The plaintiff confirmed that he was Sammy.  The police did not introduce themselves; they just wanted to know from the plaintiff where the old age pension from the Ikwezi was. When the plaintiff told them that he knew nothing about the money, the police assaulted him by smacking his face and kicking him.  There was also one official who had a golf stick with which he hit the plaintiff.  At that stage the plaintiff tried to prevent them from hitting him.  He had been seated on the bed and they hit him until he fell to the ground, whereupon he was dragged outside.  He was powerless to resist, due to having been assaulted.  Sidzumo started crying and one of them said “hit this thing”, referring to her.

[23] One policeman kicked her in the stomach and she fell onto the bed.  She did not know where they were taking the plaintiff.  They dragged him towards the vehicles that they had arrived in.  She went up to the gate, but could not see which vehicle they put the plaintiff in, because there were quite a lot of vehicles, most of which were white in colour.

[24] Before he was dragged into the vehicles, the plaintiff’s mouth had been bleeding.  When asked whether she saw any injuries on the plaintiff, she demonstrated by placing her hand on her forehead, but she could not recall which side of the forehead the injuries were on.  He had also been bleeding around one eye.  She had seen these injuries when the plaintiff was being assaulted in the room.  She saw the plaintiff again when he appeared in court, at which point he showed her other injuries on his feet. He told her that he also had wounds on his arms.  Sidzumo demonstrated with both her hands on her arms.  Pointing to her left wrist, she stated that the injury was reminiscent of someone being scratched very severely.

[25] She only saw the plaintiff again when he came back from Pollsmoor, some 5 or 6 months later.  He had lost some weight. She became scared of sleeping at the plaintiff’s place, because he would wake up every time he heard the sound of a vehicle.

[26] In cross examination, Sidzumo testified that the plaintiff was also hit with a fist in his face. She could not say for how long the assault went on.  The official, who was most involved in assaulting him, was a black gentleman, who wore spectacles.  She also could not say whether his bleeding eye was blue or swollen, as she had been scared and shocked, and had been crying. 

[27] As they dragged him outside, the plaintiff exclaimed “yoh-yoh”, as he was in pain.  She put on her trousers and followed them out.  She did not think that the plaintiff understood what was happening or that he was conscious when he was outside because he was powerless.  She could not speak to the plaintiff because she was also scared, shocked and crying.

[28] When asked if she had seen something like a rubber tube or a rope being used to torture him, she testified that a plastic bag that looked transparent was put onto him.  At that point she was not thinking straight and did not look at the time, therefore she could not say how long it took from when the police got into the room to when they took the plaintiff outside, but it was not quick.

[29] She denied that Tolbadi entered the room only after the place was secured by the NIU.  She stated that Tolbadi, whom she remembered to be dark, entered with other police.  She did not know his identity at the time but got to know later that Tolbadi was the person handling the plaintiff’s case. She did not remember Tolbadi introducing himself as that was 8 years ago.  She also did not remember Tolbadi telling the plaintiff the reason for the arrest, but could remember the question “Where is the money of the old age pension?” 

[30] It was put to her that her evidence that the police asked where the pension money was, was nonsensical because the robbery was unsuccessful and therefore no money had been stolen. 

[31] MacKlay testified that the plaintiff was her younger brother and that she lived in a flat situated next to the plaintiff’s.  On the day of the robbery she had heard shots and quickly ran out, to check what was going on. The plaintiff was in his room.  The night before he had been in the company of Sidzumo when he came home and after they had heard the shots, she saw Sidzumo.  She saw the plaintiff that morning, because when she ran out the plaintiff came with the kettle to go and fetch some water from the tap. She told the plaintiff that she was going to Ikwezi to go and see what was happening.  She went to Ikwezi with a lady by the name, Nobuntu. On arrival at Ikwezi they saw a lot of people, who told them about the robbery.  They went back home and told the plaintiff of what had happened.  The plaintiff and Sidzumo had been sitting in their room and were surprised by their account of the robbery.  Sidzumo was about to go to work because she started work at 11 o’clock.

[32] While MacKlay was at her friend’s place, she received a call telling her to come home quickly.  When she arrived at home she was told that there had been a lot of police vehicles, but that they had left already.  Having been asked to tell the Court what she saw and not what other people told her, she stated that on her arrival at her home there were four private vehicles looking for the plaintiff.  The drivers of these vehicles said that they were detectives.  They did not say where they were coming from. When they said they were looking for the plaintiff, she called him over the phone and asked where he was.  He said he was on his way after dropping Sidzumo off at work.

[33] She and the plaintiff then went to Gugulethu Police Station.  When they arrived there, they found the person who was in charge for the day. MacKlay told the official that the plaintiff was being sought after by the police, but they were told that there was no case yet, he could go home.  They then went home after which nothing happened.

[34] One Thursday night while they were asleep, police arrived at their home.  One of the police was wearing a police uniform, some were wearing jeans and t-shirts and some had bullet proof vests on.  They came and kicked the plaintiff’s door open and a lot of them entered the room.  As to what happened next she could not say, but she could hear the plaintiff crying.  They stayed in that room for a period of almost an hour assaulting the plaintiff.  Sidzumo was with the plaintiff inside his room.  Police came out of the plaintiff’s room, carrying him.  They put him in a vehicle, but she did not know whether the vehicle was white because it was at night.

[35] Having been asked to explain how the plaintiff was being carried, she said that they were dragging him. She did not know whether he had handcuffs on, but his hands were at his back.  When asked if he was walking on his own feet, she stated that he was not, they were dragging him.  He was put in the police vehicle and then the police left with him.  Four days passed without her seeing the plaintiff.  They went to look for him at Bellville South police station.  They were told that he was there, but that they would not be able to see him, because he was “swollen up”.  They eventually saw him at Athlone F Court, but did not have a chance to talk to him.  She went to see him at Pollsmoor and he showed her his hands through the glass.  There were marks on his hands.  He tried to show her his legs, stating that he had marks on his legs from being dragged, but she could not properly see.  She met up with him again when he appeared in the Athlone Court.  She seemed to think that he stayed in custody between 4 and 6 months. 

[36] Sibeko, also known as Power, testified that he was arrested in Tambo Village, Manenberg, where he resides, for an offence unrelated to the Ikwezi robbery.  After arresting him, the police stopped at NY […] Gugulethu, for about 2 to 3 minutes, after which they came back with a person (who later became known to him as the plaintiff).  They held this person upside down - with his head facing down and his feet up.  The plaintiff’s pants were torn and looked like a skirt.  Police were assaulting him as they brought him to the vehicle, which was a kombi.  They were swearing at him and also saying to him “…you said you did not know Xhosa…but we told you, you will know Xhosa now.”  They then threw the plaintiff inside the kombi.  The police were also assaulting others that were inside, that had been arrested, but concentrated more on the plaintiff.  They then placed a plastic bag over his head and tightened it, preventing him from breathing.  This was all being done quickly.  Those arrested were then taken to Bellville South police station.  Sibeko was placed in the same room with the plaintiff.  The police assaulted them in that room, asking them to tell the truth about robberies that they were allegedly involved in.  Sibeko had been arrested in connection with a robbery that took place in Paarden Eiland.  There were about eight to ten police in that room, taking turns to hit him and the plaintiff.  They also placed the same plastic bags over their heads, suffocating them, while asking the plaintiff about a white Jetta.  The plaintiff fainted whilst they were pulling and holding him down.  They poured water on him and put the plastic bag back again.  They also asked the plaintiff about a robbery at a centre in Gugulethu and about firearms.  The plaintiff denied any knowledge of these.  This carried on for more than three hours.  Sibeko decided to admit to everything, because of the unbearable nature of the assaults.  The plaintiff later decided to do the same thing.  The assaults then stopped.  The plaintiff’s arms were swollen because of the handcuffs. He, however, later stated that the assault took time but he could not say how long.  Sibeko, who was dizzy at that stage, was then taken to another cell.  Two hours later the plaintiff was placed with him in the same cell.  Sibeko and his co-accused were taken to court and the plaintiff was left in the cells.  They met again in Pollsmoor and that was the last time he saw the plaintiff.

[37] In cross examination, Sibeko testified that he could not recall whether the plaintiff had been handcuffed when the police brought him to the vehicle, as it was a long time ago.  As the police brought the plaintiff to the vehicle, they were assaulting him.  At that time, the plaintiff was saying “sorry, sorry”, but he did not know what the plaintiff was saying sorry for.  That is when the police made the remark that “we told you that you will be able to speak Xhosa”.  

Defendant’s case

[38] Tolbadi testified that he was a Captain in the SAPS.  He is attached to the Directorate for Priority Crime Investigation (‘DPCI’).  In 2008 he was a Constable in the Organised Crime Unit.  On 20 November 2008 [later stated to be 21 November 2008], at approximately 12:30 am, he was in Gugulethu conducting a police operation in respect of an incident that happened on 13 November 2008, involving the robbery of a pension pay out at Ikwezi in Gugulethu.  The robbery took place at around 7:30 in the morning.

[39] On 20 November 2008 he had received fingerprints linked to a vehicle that was involved in the robbery, a white Volkswagen Jetta.  The white Jetta had been reported stolen in the Claremont area and was found abandoned after the robbery.  The fingerprints found on a handle of the passenger door belonged to a certain lady - Mpambo - who lived in Gugulethu.  As soon as he received the fingerprints report, he informed his commander, Captain Jamjam.  Mpambo told him [Jamjam] that she had been walking down a street in Gugulethu early in the morning, when a white Jetta stopped next to her.  She opened the door and the driver, by the name of Sammy [Pitso], the plaintiff, asked where the Yellow Door Club was.  The Yellow Door Club is opposite the Community Hall where the robbery took place.  Mpambo knew the plaintiff.  According to Tolbadi their houses were a kilometre apart.  Captain Jamjam then obtained a statement from Mpambo.

[40] They then embarked on an operation to arrest the plaintiff, with Jamjam in charge of the operation.  They involved the National Intervention Unit (NIU), flying squad and the local police.  The function of the NIU is, if there is a dangerous suspect such as in cases of robbery, to secure the premises, open them, arrest the suspect and call the investigating officer.  The NIU is not involved in the investigation before or after the operation.

[41] On 21 November 2008 at approximately 12 midnight they went to the plaintiff’s address. There were about 14 uniformed police officers, while Tolbadi and Jamjam wore civilian clothes.  As soon as they arrived at the premises, members of the NIU, who were four in number, took the lead.  Tolbadi was inside the yard not far from the door.  The NIU members knocked and said “Police, open the door” and it was quiet.  They knocked again.  He does not know how they opened the door.  One member was at the door and the other three members went inside the house.  Within a second, they called him and Jamjam to come inside.  They found the plaintiff sitting on the bed with his hands behind his back, handcuffed.  The placing of handcuffs by members of the NIU was normal procedure.  Besides the police and the plaintiff, no one else was in the room.  He identified himself to the plaintiff by showing his appointment certificate and informed the plaintiff about the arrest and his rights.  The plaintiff wore short pants and a T-shirt.  He took off the plaintiff’s handcuffs and told him to put on a jacket and long pants.  After that he took him to the police vehicle outside.  The vehicle was an unmarked Condor.  The other police vehicles that accompanied them were marked.

[42] It took approximately two minutes to enter the plaintiff’s room and take him to the police vehicle.  The plaintiff was never assaulted in his room.  He did not notice any other police officer assaulting the plaintiff.  The plaintiff walked to the Condor with him and his hands were at the back as he was handcuffed.  There was another person, whose name he could not remember, in the Condor.  The plaintiff was taken to Bellville South police station.  He processed the suspect by putting him on the books, taking his fingerprints and taking a warning statement.  He then detained him and prepared for the court appearance.  He did not recall the plaintiff being questioned about the Jetta and the robbery by any of the police officers, as the plaintiff was with him and Jamjam the whole time.  He denied that anyone assaulted the plaintiff in any manner alleged, or whatsoever, as the plaintiff was in his presence until he was detained in the cells.  It was put to him that an allegation was made by one of the witnesses that the plaintiff was hit with a golf club.  He stated that he did not remember anything about a golf club.

[43] After the plaintiff was detained, he took him to the Athlone Court.  He could not remember when that was.  The plaintiff appeared fine; there were no bruises or scratches on him.  He was referred to the occurrence book, where Captain Wessels from Bellville South police station made an entry on 21 November 2008 that upon detention the plaintiff was free from any visible injuries.  According to Tolbadi, the charge office commander would not detain him as a suspect if he complained of any injuries.  He would ask the Investigating Officer to take him to hospital before he could detain him.  If the entry states that the suspect is free of visible injuries, then it shows that there was no complaint.

[44] Tolbadi opposed the plaintiff’s application for bail, but bail was granted.  He never made a statement regarding another case that the plaintiff was involved in, as alleged by the plaintiff.

[45] At the time the plaintiff appeared in court, there was another case pending against him, according to his profile, and it entailed, according to his recollection, a firearm.  He did not know anything about charges being withdrawn in the case involving the firearm.  With regards to the case of robbery, charges were provisionally withdrawn against the plaintiff.  According to the prosecutor, Advocate Mfeya, there was a ballistic link: the firearm that was used in the pension pay out robbery in Gugulethu was also used in other robberies in Grabouw, Mitchell’s Plain and the Eastern Cape, or Johannesburg, if he was not mistaken.  Mfeya wanted to centralise the cases because of the ballistic link.  He wanted all the cases to run together with the Western Cape case.

[46] In cross-examination, Tolbadi conceded that the fingerprints did not link the plaintiff to the vehicle.  He also conceded that only the name “Sammy” appears in the statement taken from Mpambo, the name and surname “Pitso Leutlwetsi” do not appear.  

[47] He was just eight metres away from the door at the plaintiff’s house when the members of the NIU had gone into the plaintiff’s room.  He could not see how they opened the door as they were standing in front of it.  In some cases that involve robbery where a firearm was used, NIU would use force to open the door.  He conceded that he did not know what happened inside the room when members of the NIU were there, as he was 8 metres away.  There is no statement from the NIU pertaining to how they found and handcuffed the plaintiff.  According to Tolbadi, this is because they simply enter the house and keep the person under control until the Investigating Officer is called, whereupon he or she would take over.  It was only for few seconds that NIU members were alone in the room with the plaintiff.  He would have seen if anyone assaulted the plaintiff in his presence, as he was there immediately.  He conceded that he was outside the room and could not comment about the allegation that the plaintiff was assaulted inside the room during the period he was not there.  He was, however, there quickly thereafter and in his presence, nothing happened.  He could not comment on the allegation that the plaintiff’s pants were torn.  According to him, the plaintiff walked normally when he was taken to the vehicle and he was not bleeding.  He was with the plaintiff the whole time, along with Jamjam and other police officers and the plaintiff was not carried to the vehicle.

[48] It was put to him that the plaintiff was granted bail on 2 February 2009.  He testified that he would not dispute that if it was written on the charge sheet.  It was put to him also that from the time Mpambo’s statement was obtained, which was 11 o’clock in the morning, there was enough time to obtain a search warrant.  To this he responded by saying that the statement was commissioned at 11 o’clock, but he only received it at 3 o’clock in the afternoon, according to his recollection.

[49] Mpambo was interviewed by Jamjam in the morning, while he was out of office, following up on other information regarding the robbery case.  He got back to the office at 3 o’clock.  That is when his commander, Jamjam, told him to activate people in order to arrest the suspect.  Jamjam told him that the suspect is dangerous and that they must go and arrest him.  They arrested the suspect on the basis of Mpambo’s statement.  

[50] After the lunch adjournment, Tolbadi sought to rectify his earlier version by stating that they had received information at night that the suspect was at his house, after which they went and arrested him.  During the day they were busy with other things and therefore did not have time to go and apply for a warrant of arrest.  Mpambo pointed out the suspect’s address to them.  This had not been mentioned during his examination in chief, and his answer to this was that he was not asked.

[51] He also stated that they did not search for firearms at the plaintiff’s house; they simply went there to arrest him.  Later he rectified that statement by saying that he and Jamjam searched the plaintiff’s house for the firearm that had been used in the robbery, but found nothing.  He added again by saying that the NIU also searched for an illegal firearm.  He could not comment as to why it was never put to the plaintiff that his room was searched for a firearm.  It was also put to him that the plaintiff never mentioned that his room was searched by the police looking for a firearm.  Later on he stated that it was only he and Captain Jamjam who searched the room for a firearm.

[52] The plaintiff was not pointed out, at an identity parade, by a complainant in the robbery matter.  A second set of fingerprints, belonging to one Lwandiso Njineli (‘Njineli’), were also lifted from the Jetta after the robbery, but that result only came in 2009.  A warrant of arrest was obtained in respect of Njineli, albeit in 2009.  Tolbadi’s response to this was that this route was not followed in respect of the plaintiff, because he was not linked with the fingerprints in respect of the vehicles used in the robbery.  Mpambo was not arrested because she was questioned and a detailed statement was obtained from her.  

[53] They did not have information that the plaintiff was planning to flee, but in a case like that they would act immediately after receiving information, as the suspect could run away.  He did not have any reason to believe that if the plaintiff was charged for the offence, he would abscond.  He informed the prosecutor that the ID parade was negative, but was not sure was if the plaintiff was in custody before or after the ID parade.  He also could not recall the date upon which the matter was withdrawn.  The issue of the pending case against the plaintiff came after he was arrested for robbery and not before.  They do not summons a suspect of an armed robbery.  They never approached the plaintiff at his premises on 13 November 2008 (i.e. the day of the robbery) as stated by his girlfriend and belatedly by his sister.    

[54] Jamjam testified that he is a Lieutenant Colonel in the SAPS, stationed at the Provincial Detectives office in Cape Town.  He has been in the police service for 29 years.  In November 2008 he was a Captain stationed at the DPCI, also known as the Hawks.  He knew about the robbery that took place at Ikwezi Centre in Gugulethu on 13 November 2008.  He was the staff officer in that section for serious crime investigations and the Investigating Officer was Tolbadi, who is now a Captain.  Their commander during that year was Colonel Manyana.  Tolbadi reported to him (i.e. Jamjam).  Tolbadi informed him that Mpambo’s fingerprints were obtained from a white Jetta that had been involved in the robbery.  He consulted with Mpambo on 20 November 2008.  Mpambo told him that she got a lift in a white Jetta driven by a person known to her as “Sammy”, on the day of the robbery that happened at Ikwezi in Gugulethu.  She said the driver of the vehicle was alone and she sat in front on the passenger seat.  Mpambo’s fingerprints were lifted outside the vehicle on the left passenger door.  She informed him that the reason she got a lift was because the driver of the vehicle was looking for directions to a place called Yellow Door.  She showed him the way to Yellow Door and was dropped off on the way.  The driver then proceeded to Ikwezi.  Mpambo told Jamjam that she knew “Sammy” very well.  She even knew where he was staying and also knew that he was not working.  She mentioned that he had a red motor vehicle.  He could not remember who Mpambo was referring to when she spoke about the owner of the red vehicle.  He could not remember what “Sammy’s” surname was, he just remembered him as “Sammy”.  Mpambo’s statement prompted him to organise for “Sammy’s” arrest for armed robbery.  The white Jetta made him link “Sammy” to the robbery, as information had been received that a white Jetta was there during the robbery.  It was later found abandoned in the vicinity of Mitchells Plain.  Operations to arrest suspects were usually conducted during the early hours of the morning. 

[55] On 20 November 2008 from the time of receiving the statement from Mpambo, at 11 o’clock in the morning, to the time that the plaintiff was arrested, they were busy with the inspection of the docket as well as correspondences and arranging investigations and consultations relating to this and other matters.  The Ikwezi robbery was a big one and it involved a lot of people.  The investigations took about three hours.  The police were taken to “Sammy’s” house by Mpambo.  He asked for backup from the NIU, because firearms were used during the robbery and a lot of shooting took place.  The NIU is responsible to cordon off the area and to make it safe.  Tolbadi was also there.  After Mpambo pointed the address out, the NIU knocked and opened the door; they then signalled to him and Tolbadi to enter the house.  This was done in a matter of seconds.  He and Tolbadi entered the house and found the suspect inside the room.  There was no one with him in the room.  The suspect was already cuffed.  Tolbadi identified himself by means of his appointment certificate and informed the suspect of his rights and that he was being arrested for armed robbery.  They checked the room but there was not much there.  They told the suspect to put on his pants.  They were in the room for just a few minutes.  He could not dispute that the police kicked down the plaintiff’s door, as he was not the one who was knocking there.  He could not say whether the police identified themselves before the door was kicked open as members of the NIU were in front.  He was asked if any smacking, kicking, punching or suffocating with a plastic bag took place in his presence, inside the plaintiff’s room, to which he testified that none of these things happened.  After informing the plaintiff of his rights and the reason for his arrest, he was placed in a Condor vehicle.  The plaintiff walked with Jamjam, Tolbadi and another colleague.  His hands were in handcuffs.  There was another suspect in the Condor.  He did not recall the suspect’s name.  He knew nothing of the plaintiff being carried upside down from his house to the Condor or of him being mocked as stated by Sibeko.  He denied that the plaintiff was unconscious by the time he was taken to the Condor and only regained his consciousness once he was inside the Condor.

[56] The plaintiff was then taken to the Bellville South police station for detention.  He did not know of and could not comment on the alleged assault at the Bellville police station.  After the plaintiff was handed over to the police station that was the last time Jamjam was involved in the case.  From the time the plaintiff was brought to the police station until he was handed over to the police for detention, neither he (Jamjam), Tolbadi nor any other police officer assaulted him.  He was there when the plaintiff was taken to the police cells.  There was no sign whatsoever of the plaintiff having been assaulted.  He was with the plaintiff from the time of his arrest up until he was booked for detention inside the police station.  He never knew the plaintiff prior to his arrest.

[57] In cross examination, he conceded that he considered Mpambo a suspect when her fingerprints were found and also conceded that she was not arrested.  His explanation was that she was questioned about the fingerprints and gave an explanation and following that she was no longer considered a suspect.  She just mentioned “Sammy” and no surname.  She mentioned his address and all the details about him.  He did not probe why Sammy would ask for directions to Yellow Door when both he and Mpambo lived in Gugulethu and knew each other.  He rectified his earlier statement regarding the vehicle being recovered in Mitchells Plain, by stating he was not sure of where the vehicle was recovered.  He also could not recall if it was recovered the same day as the robbery at Ikwezi.  The operation was also to arrest other suspects.  Another suspect was arrested, although he could not recall the circumstances of that arrest.

[58] They arrived at the suspect’s address at the same time as the NIU.  He, Tolbadi and a member of the NIU were first taken by Mpambo to the address to look at the layout before they started with the operation.  He would dispute that a person in the Condor would be able to see what was happening at the plaintiff’s house, because the vehicles were parked a little further from the house where they operate.  He could not dispute that the other suspect they had in the Condor was named Power.  Power would have been able to see the plaintiff getting in the Condor, because he was already inside the Condor.  He could not dispute that the plaintiff’s sister had a flat situated next to the plaintiff’s, but he never saw her that day.  The distance between where he and Tolbadi stood, and the door of the room, where the members of the NIU were, was about six to seven metres.  He conceded that he could not see what was happening inside, as he was standing outside at that stage.  He could not say whether members of the NIU told the plaintiff that they were placing him under arrest.

[59] When it was put to him that he could not argue with what the plaintiff’s sister had said when she testified that she heard a commotion at the plaintiff’s place, which is next to hers, he answered that he would dispute that, because they were not outside for too long.  Members of the NIU lifted the bed to check for weapons.  He and Tolbadi were already there also when this was done.  He was not sure whether any member of the NIU deposed an affidavit to that effect.  According to his knowledge there had been more than one vehicle involved in the robbery.  He was not sure of the make of the other vehicle.  He conceded that the fingerprints recovered did not link the plaintiff to either of the two vehicles.  When asked why they did not apply for a search warrant before searching the premises of the plaintiff, he testified that he was very busy that day preparing for this case and it slipped his mind to delegate to some of his colleagues to apply for the search warrant.  The same answer was given in respect of the warrant of arrest.

[60] At this point the defendant applied for leave to amend its plea, replacing the reference to search warrant with warrant of arrest.  The plaintiff had no objection to this amendment and it was allowed.  Jamjam conceded that the statement by Mpambo did not mention any role that this “Sammy” played in the commission of the robbery nor did it mention that he was involved in any way in the robbery.  According to him, there was no need to treat the plaintiff in the same manner as Mpambo, by calling and questioning him, because there was a prima facie case that he had been driving a vehicle that had been hijacked.  He denied that the police acted irrationally.

[61] Mfeya testified that he was currently employed by the state as a magistrate, since 4 November 2013.  Before that he worked as a prosecutor until 2010.  He became involved in the prosecution of the robbery case against the plaintiff, according to his re-collection, during the bail application in the Athlone Court.  He might have proceeded with the case until it was sent to the Regional Court in Wynberg.  Mfeya’s evidence was largely not relevant to the issues to be determined by the Court, and a great deal of his cross examination was very much based on suppositions and general procedure. That much was confirmed during argument by both counsel who submitted that nothing turned on Mfeya’s evidence.  Mfeya could also not recall a lot of detail about the case.

Discussion

The application for leave to amend the plaintiff’s particulars of claim  

[62] At the close of the defendant’s case the plaintiff sought leave to amend his particulars of claim by basically inserting the words: “further detained him until he was released on bail” at the end of paragraph 3.  The original paragraph 3 read as follows:            

“                                                                 3.

On or about 20 November 2008 and at Ny (sic) 27, No.[…], Gugulethu at approximately 12h30 members of the SAPS forcefully entered the house without a search warrant and unlawfully assaulted and arrest (sic) him. The members of the SAPS unlawfully and wrongfully assaulted Plaintiff in the presence of his family and his girlfriend, by handcuffing him.

                                        3.1

Within the jurisdiction of the above honourable court, the plaintiff was violently assaulted and unlawfully arrested by the group of police officers without a warrant of arrest.”

[63] I refused the application to amend the particulars of claim and here are the reasons.  Based on the pleading quoted above, the issues brought before the Court were unlawful arrest and assault.  At the outset and throughout the leading of the defendant’s witnesses’ evidence, Mr VDS, appearing for the defendant, objected to the line of questioning adopted by Mr G at some stages, because it sought to touch on further detention which, according to him, was not pleaded and consequentially would be prejudicial to the defendant.  Mr G told the Court that the plaintiff differed with defendant in his interpretation of the pleading in that, according to him, further detention formed part of the cause of action already pleaded.  He held a view that it was the police that set the wheels in motion by arresting the plaintiff and he was incarcerated because of them, they were therefore responsible for his detention.  Mr G advised the Court that this would be the plaintiff’s argument at the end of the case.  The Court allowed the plaintiff’s counsel some latitude in cross examining witnesses based on this alleged understanding of the law, which was to be argued at the end of the case.  Mr G then vacillated between abandoning this line of questioning to attempting to pursue it again in an incomprehensible manner.  

[64] Be that as it may, if one has regard to the stance adopted by the plaintiff when he was warned about a case of further detention not being pleaded, and him seeking leave of the Court to allow evidence to be led, under the pretext that it was relevant to the case of arrest presented before the Court and which was to be argued at a later stage, the introduction of the amendment, right after the last witness for the defendant was excused, without any hint beforehand, led to one conclusion: that the plaintiff ‘wanted to have his cake and eat it’.  This, in my view, equated to conducting a trial by ambush and was unfair to the other party.

[65] Witnesses had come and gone, and gave evidence on the basis of the case presented.  At no stage did Mr G indicate, or even hint, that the plaintiff would seek an amendment to the particulars of claim.  He was warned about the case pleaded throughout the leading of the witnesses’ evidence, particularly those of the defendant.  He, however, still maintained that the plaintiff saw the cause of action pleaded as inclusive of detention, even beyond first appearance in court.

[66] It was further surprising that the application to amend was dated 14 February 2017, when it was only served and filed on 24 April 2017, which was the last day of the hearing of evidence.  Furthermore, and most importantly, this application was not accompanied by any affidavit that would explain why it was not done in 2011 when the summons was issued, or shortly thereafter, or at any stage before the commencement of the trial or before or during the leading of evidence.  The amendment comprised details which were known to the plaintiff from the time that he instituted action in 2011 and despite Mr G’s line of cross examination in November 2016, the application to amend was only brought in April 2017.  This is significant as will presently become clear.

[67] The refusal of the amendment was not only based on the tardiness on the part of the plaintiff in handling the amendment, but on other considerations as well.  I was persuaded by the argument presented on behalf of the defendant that the amendment sought, whilst appearing straightforward and presenting no harm, would have ramifications to the case for the reasons outlined as follows.

[68] First, it was argued on behalf of the defendant that further detention amounts to a separate cause of action and if that were so, the claim would have prescribed, in that it arose in 2008.  In Rustenburg Platinum Mines Ltd v Industrial Maintenance Painting Services CC [2009] 1 All SA 275 (SCA) it was held at para 13 that: “[a]n amendment is no doubt permissible, provided that the debt which is claimed by way of the amendment is the same or substantially the same debt as originally claimed”.  The Court, quoting a passage from the decision of Evins v Shield Insurance 1980 (2) SA 814 (A), went on to state at para 14:

“Where the plaintiff seeks by way of amendment to augment his claim for damages, he will be precluded from doing so by prescription if the new claim is based upon a new cause of action and the relevant prescriptive period has run, but not if it was part and parcel of the original cause of action and merely represents a fresh quantification of the original claim or the addition of a further item of damages.”

[69] In this case the plaintiff did not seek an amendment that would effectively increase his quantum or amount to fresh quantification thereof, in respect of the unlawful arrest and assault; such an amendment would in those circumstances be permissible.  He sought to augment his claim for damages by introducing another cause of action.

[70] Even though the detention of the plaintiff after his first court appearance had its genesis on the same date of the arrest and alleged assault, it does not necessarily follow that he can automatically claim for unlawful detention after the period of his first appearance in court, as well as for malicious prosecution (although it is common cause that the latter was not being claimed).

[71] In the recent decision of Minister of Safety and Security v Magagula (991/2016) [2017] ZASCA 103 (6 September 2017), at para 13, the Court held that: “[t]he two periods of detention – the period until the first appearance in court and the period from first appearance until ultimate release, must be considered separately”.  This is premised on the fact that the authority to detain the suspect further after his or her first appearance in court is within the discretion of the court, which is exercised independently by the court.  (See Magagula supra at para 13.)  According to the Court in Magagula, at paras 14 and 15, the case for unlawful detention for the period before the first appearance in court was dependent upon the defendant failing to establish that the arrest was lawful, whilst the detention after the plaintiff’s first appearance in court is dependent upon the lawfulness or otherwise of the magistrate’s orders.  The court observed that the magistrate is not a servant of the Minister of Safety and Security and that there was no evidence in that particular case that the magistrate had behaved in an unlawful manner.  Fundamentally, the court held that “[n]o liability for his conduct is attributable to the appellant [i.e. Minister Safety and Security]”.

[72] As in this case, the plaintiff, by arguing against the lawfulness of his further detention relied on the police’s failure to perform a public duty, which was wrongful.  Magagula relied on Woji v Minister of Police 2015 (1) SACR 409 (SCA), at para 28, and Zealand v Minister of Justice and Constitutional Development and Another [2008] ZACC 3; 2008 (4) SA 458 (CC), at para 53.  The court in Magagula found that it did not need to decide whether or not reliance on that submission was well-founded as the cause of action was neither pleaded, nor was evidence led on this issue.

[73] In the present case, further detention was not pleaded and the defendant did not lead evidence about the nature of the evidence presented at the bail hearings upon which the court refused or granted bail.  Mr G attempted to elicit evidence from the defendant’s witnesses in cross examination.  Even so, no evidence had been led to suggest that the plaintiff’s detention after the first appearance in court was arbitrary or without just cause.  The only evidence presented was Tolbadi’s opposition to the granting of bail.

[74] As this was a schedule 6 offence, the onus would have been on the plaintiff to put facts before the Magistrate’s Court as to why he should have been granted bail.  It is apparent from the plaintiff’s evidence that he was legally represented at the time, first by Ms Williams and later by advocate Pienaar, and at some point was indeed granted bail.  These legal practitioners that represented him, apart from the fact that the issue of further detention was not pleaded, were not called to give clarity regarding the postponements, that is if there was any sinister reason surrounding those and the circumstances of how the bail application was handled.  If the plaintiff, owing to him being a layperson, lacked understanding of the court processes and the law, there was no reason why those who represented him could not have been approached by his current legal representatives and called to shed some light on his behalf.  The record of the bail proceedings was also not referred to either.  Precisely what occurred and at what time during the period up until the plaintiff was granted bail, therefore, remains speculative.  Without evidence, it cannot be assumed that the plaintiff’s further detention until his release on bail was arbitrary.  

[75] Mr G took witnesses through what was said to be portions of a court book, detailing postponements.  He seemed to suggest that there was no clarity as to whether a bail application was heard and whether the plaintiff was ever granted bail and when that was.  Tolbadi and Mfeya could not recall specific details about the bail application, reasons for postponements and what transpired specifically in this case.  They simply gave evidence about general practice.  Mr G speculated that bail might have been granted in July 2009, as that was the only mention of bail in the court book.  That seems to be contradicted by the evidence of the plaintiff, who suggested that he was released on bail in April 2009.  Much of the cross examination of the defendant’s witnesses was based on speculation and hypothesis without any facts to back it up.

[76] In sum, on this issue, Magagula supra is clear authority for the proposition that further detention after the first appearance in court is a separate cause of action which ought to have been pleaded separately.  (Also see Ngcobo v Minister of Police 1978 (4) SA 930 (D) at 932).  That being the case, it must follow that the defendant’s contention that the claim has become prescribed is good and on that basis the amendment could not be allowed.

[77] Furthermore, as I have found, no evidence was led to suggest that the police officers neglected to and/or provided the prosecutor and ultimately the magistrate with information that led to the refusal of bail and that consequently the magistrate’s orders, by keeping the plaintiff in custody, until his release on bail, were unlawful.  It is worth noting that the plaintiff, in any event, did not plead in the intended amendment that it was the police’s negligent or malicious conduct which resulted in his continued incarceration after his first court appearance.   

[78] Additionally, even though the plaintiff presented no affidavit about the intended amendment, the defendant filed an opposing affidavit of one Petrus Labuschagne (“Labuschagne”), who is a legal official in the employ of the defendant.  Labuschagne stated that because of the narrowness of the plaintiff’s claim, the defendant confined itself to the allegations pleaded in the particulars of claim.  As a consequence, it neither prepared a case in defence for an alleged unlawful detention nor did the defendant consult witnesses in that regard, it also consequently did not lead evidence in that regard.  The defendant would be prejudiced if the amendment were to be allowed, as its case would have to be re-opened. The plaintiff would have to re-open his case to lead relevant evidence.  The defendant would then have to be granted an opportunity to cross-examine the plaintiff.  The defendant would also have to re-open its case in order to lead exculpatory evidence, which would mean recalling of witnesses, tracing of other witnesses that were involved in the plaintiff’s criminal investigation and prosecution eight years ago, who were no longer available to the defendant and which the defendant had no idea where to start looking for in order to consult with them.  It would further have to track down documents which were generated eight years ago.  The defendant had encountered extreme difficulty in tracing the relevant criminal court documents and feared that the same had been lost.  Labuschagne’s affidavit was uncontested by any evidence from the plaintiff.  Mr G simply presented argument against it.

[79] Having applied my mind to all these issues, it was clear that allowing the amendment would effectively result in a full-blown new trial.  I therefore was of the view that the plaintiff had not provided any reason for this Court to apply its discretion in his favour by allowing the amendment.

Unlawful arrest

[80] The issue to be determined is whether the arresting officer, Tolbadi, had a reasonable suspicion that the plaintiff had committed an offence as stipulated in s 40 (1) (b) of the Criminal Procedure Act, 51 of 1977 (‘the Criminal Procedure Act’).

[81] That section provides thus:

“   (1) A peace officer may without warrant arrest any person –

…

(b) whom he reasonably suspects of having committed an offence referred to in Schedule 1, other than the offence of escaping from lawful custody...”

(Underlined for emphasis)

[82] An important consideration from this provision, which is often missed, is that the arresting officer is not obliged to arrest, but has a discretion to do so once all the prerequisites of s 40 (1) (b) are present.

[83] The onus to prove the lawfulness of the arrest is on the defendant, the arrestor.  The test whether the peace officer reasonably suspects a person to have committed an offence is an objective one. It is whether the police officer has reasonable grounds for his or her suspicion.  It has been held that “[s]uspicion in its ordinary meaning is a state of conjecture or surmise where proof is lacking; ‘I suspect but I cannot prove’”.  (See Shabaan Bin Hussien and Others v Chong Fook Kam and Another [1969] 3 ALL ER 1627 (PC), quoted with approval in Duncan v Minister of Law and Order 1986 (2) SA 805 (A) at 819 I.) 

[84] Grounds of suspicion are therefore not limited to those that can be proved in court.

“   It was conceivable that a reasonable suspicion can be formed ‘where a person has been seen at the scene of a crime and upon being questioned gives a false alibi or refuses to answer questions.’ Arrest on reasonable suspicion can be made even if the intention of the arrestor is first to conduct an investigation before charging a suspect or to question suspects or to test the alibi or place the suspect in identification parade.”

(See Mdlalose and Another v Minister of Police and Another [2016] 4 All SA 950 (WCC) at para 59 citing Mawu and Another v Minister of Police 2015 (2) SACR 14 (WCC) at para 32 and Duncan v Minister of Law and Order 1984 (3) SA 460 (T) at 468 E-G)

[85] Whilst it is necessary for the police to act promptly in order to avoid losing their suspect, it was held in Duncan v Minister of Law and Order (1984) supra at 466 E that the police officer “should keep an open mind and take notice of every relevant circumstance pointing either to innocence or to guilt”.  

[86] Turning to the present matter.  The starting point for me is that the right to freedom is a fundamental right jealously guarded in the Constitution of the Republic of South Africa, Act 108 of 1996.  It is a right that is not only to be observed but also respected - arresting and detaining an individual must hence be done in accordance with the law, with the appreciation that a person’s liberty and dignity is intruded upon by being arrested.  It is therefore crucial that when an arresting officer exercises his or her powers to arrest, he or she must do so scrupulously, lawfully and with great respectability.  It is more so when the arrest is conducted without a warrant.  As Jamjam testified, these operations are often conducted during the early hours of the morning when individuals are least suspecting and possibly sleeping.  The arrests would possibly not be the calmest.  The arrest in this case was also executed during the early hours of the morning whilst the plaintiff was sleeping.  

[87] Whilst the investigating officer in this case was Tolbadi, it was Jamjam who interviewed and obtained a statement from Mpambo, which formed the basis of the plaintiff’s arrest.  He was also the person who decided that the operation to arrest the plaintiff must be arranged.  Tolbadi stated the following in cross-examination:

“   The statement was certified by Captain Jamjam the time that you were looking for it was 11 o’clock, the same day, it was 11 o’clock. I go (sic) through to the statement after I was back in the office. It was whereby my commander inform (sic) me lets activate the people so we can just arrest the suspect.”    

[88] Jamjam too stated the following:

“   In my mind it was that the motor vehicle that was recovered, since it was used in that particular armed robbery, therefore I linked the driver to that armed robbery

…

I then, after I got the information from the lady (sic) I then tried to organise a follow-up   and the arrest of that, the mentioned guy that he (sic) was with – she was with …”

(Underlined for emphasis)

[89] Whilst Tolbadi went through the statement when he came back to the office, it appears that it was Jamjam who formed the suspicion and advised Tolbadi that they should effect the arrest.  (Ralekwa v Minister of Safety and Security 2004 (1) SACR 131 (T) at para 14.)  Having said that, I am willing to assume that having read Mpambo’s statement on his own, Tolbadi agreed with Jamjam and did not simply follow his instructions.  

[90] To decide on reasonable suspicion, it is worth observing the remarks made by Jones J in Mabona and Another v Minister of Law and Order and Others 1988 (2) SA 654 (SE) at 658 E-H, also cited in Mbotya v Minister of Police (1122/10) [2012] ZAECPEHC 43 (10 July 2012) at para 25, where the Court held:

 “    The test of whether a suspicion is reasonably entertained within the meaning of s 40 (1) (b) is objective (S v Nel and Another 1980 (4) SA 28 (E) at 33H).  Would a reasonable man in the second defendant’s position and possessed of the same information have considered that there were good and sufficient grounds for suspecting that the plaintiffs were guilty of conspiracy to commit robbery or possession of stolen property knowing it to have been stolen?  It seems to me that in evaluating his information a reasonable man would bear in mind that the section authorises drastic police action.  It authorises an arrest on the strength of a suspicion and without the need to swear out a warrant, ie something which otherwise would be an invasion of private rights and personal liberty.  The reasonable man will therefore analyse and assess the quality of the information at his disposal critically, and he will not accept it lightly or without checking it where it can be checked.  It is only after an examination of this kind that he will allow himself to entertain a suspicion which will justify an arrest.  This is not to say that the information at his disposal must be of sufficiently high quality and cogency to engender in him a conviction that the suspect is in fact guilty.  The section requires suspicion not certainty.  However, the suspicion must be based upon solid grounds.  Otherwise, it will be flighty or arbitrary, and not a reasonable suspicion.”

[91] I previously stated, as per the judgment of Mdlalose supra, that the above passage is no authority for the proposition that every time the police officer is seized with information about a suspect, that information should be analysed before any arrest is effected, as s 40 (1) (b) does not say so.  The question is what would a reasonable man, possessed of the information as in a particular case, have done.  It may be that in some cases the information is sufficiently reasonable for a police officer to form a suspicion that a Schedule 1 offence has been committed, and act on it, requiring no further assessment.  It may also be, in other cases, that the information is so far removed from the commission of the crime, or so scant or is insufficient, such that a reasonable man ought to look at it critically before taking any action to arrest a suspect, more so when there is sufficient time in which to do so.

[92] In the present case, Tolbadi and Jamjam relied on a statement made by a person whose fingerprints were found on a stolen vehicle’s passenger door, which vehicle they allege was used in the commission of the robbery and found abandoned later on.  It is perhaps crucial to analyse the actual content of Mpambo’s written statement.  Its crucial part states as follows:

“On the 2008/11/13 at about 06H55 I woke up from my home and proceeded to (sic) Ikhwezi Community Centre.  While I was on the way to Ikhwezi Community Centre just after about 500 meters from my home, a white motor vehicle Jetta stopped next to me, and the driver asked the direction going to the yellow door.

I told the driver of the motor vehicle white Jetta who was alone in the car that the yellow door is in my direction to Ikhwezi Community Centre.  The driver droped (sic) me into (sic) the corner of Ny […] and Ny […] next to the circle and further proceeded to the direction of Ny […] straight.  As I came to the yard I didn’t see the people outside Ikwezi.  I asked the security guard who then said that the people are making a line (sic) inside the yard.  I then joined the line for the grant inside.  My friend called Zukiswa Mfanana came and also the joined me into the line.

Belinda Landingwe a councillour (sic) at the street ward 41 came inside the yard also went straight to her office.  After about 30 minutes later I then heard some gun sound and then later we dispersed all over the yard running from gun shots, to the kitchen.  After about 30 minutes we then came out from the kitchen and then saw Belinda also frightened about the incident.

We asked a lift from Belinda to go back to my home.  I then noticed that the driver who was carrying me to the Ikwezi Community Centre driving a white Jetta was “SEMI” who is residing at Number  NY […] NUMBER […].  He was wearing a leather jacket black in colour and having black or navy hat and navy Jeans.  According to my knowledge SEMI is unemployed and owning a red golf.

…” (Underlined for emphasis)

[93] It is not clear from the evidence of the defendant’s witnesses how the white Jetta was used in the commission of the robbery at Ikwezi.  What is apparent, is that the Jetta which had been stolen in Claremont on 31 August 2008, was found abandoned.  According to Tolbadi, it was found not far from the crime scene.  He did not, however, state exactly where that was, whether in Gugulethu or in another area.  

[94] Jamjam initially suggested that the vehicle was found in the Mitchell’s Plain area, but later stated that he was not certain of where and when (i.e. on which date) it was discovered.  He also testified that there was information that a white Jetta had been involved in the robbery.  As to how it was allegedly involved and based on whose information, has not been placed before me. 

[95] It appears that another vehicle, an Opel Corsa, was also discovered.  It is clear from some of the written statements obtained from the docket, which have been submitted as part of the trial bundle, that an Opel Corsa was used as a getaway vehicle.  There is one particular statement made by a certain Mncedisi Mkrwele, taken on the same day of the incident, which mentions that the deponent saw armed men jumping into a white Opel Corsa, driving away from the scene and shooting.  There is no mention of a white Jetta and how that featured in the robbery itself.  Another witness statement, albeit taken in 2010, also mentions a silver BMW as a vehicle with which other robbers arrived.  Again this statement refers to the robbers jumping into a white Opel Corsa which was followed by a BMW.  I am aware that the latter statement was taken in 2010 and would not have been part of the information relied on to effect the plaintiff’s arrest, the crucial issue about it, however, is that it contains information confirming the content of a statement taken on the day of the incident and significantly makes no mention of a white Jetta and how it was involved in the robbery.  Going through these statements was my attempt at trying to put the pieces together. 

[96] I am acutely aware of the fact that the docket may be incomplete, however, the missing detail was not fleshed out in evidence.  I would have wanted to know how the Jetta featured in the picture. 

[97] Whilst both Tolbadi and Jamjam mentioned that the white Jetta was involved in the robbery, the manner in which it was used and whether it was seen by the witnesses at the scene of the crime is not clear.  The detail such as whether its occupant(s) were seen alighting from, travelling in or escaping from the crime scene in a vehicle that fitted the description of that which was later found abandoned, is not clear.

[98] That information is important, in my view, because it would be useful in linking the Jetta, hence the driver of the vehicle, from whom Mpambo received the lift, to the robbery at Ikwezi, because Mpambo’s statement simply stated that the driver who gave her a lift, dropped her and then proceeded to the direction of NY[…].  Mpambo did not mention in the statement how far was she dropped from Ikwezi, whether the vehicle’s direction as it proceeded went past Ikwezi and which direction was NY[…].  This was not clarified in evidence either.  Apart from “Sammy” being mentioned as a driver of a white Jetta, which was later abandoned, the role of the Jetta in the robbery is not explained or at least not apparent from the witness statements I have perused.

[99] On the face of it, it would seem reasonable for the police officer to act on the basis of the information that a suspect was seen driving a stolen vehicle which was later found abandoned.  The plaintiff was, however, not arrested and charged for being in possession of a stolen vehicle or theft, but for the armed robbery that took place at Ikwezi, hence the involvement of a heavyweight operation.  To decide the matter on the basis of suspicion relating to theft of the motor vehicle would otherwise be unfair to the plaintiff because that was not the justification for the arrest.   

[100] The information that the police had in relation to the driver of the white Jetta’s involvement in the robbery at Ikwezi contained loopholes, in my view.  It cannot be assumed that the Jetta was a getaway vehicle.  Suspicion might be that it was, but that suspicion must be based on reasonable grounds. It seems to me because of the insufficiency of the information, the arresting officer should have been more perceptive instead of simply ordering an operation to arrest an individual in the early hours of the morning, whilst sleeping, an operation which is highly invasive and humiliating.  As De Vos J put it in Ralekwa supra, at para 10:

“Arrest without a warrant is the most oppressive means of initiating a prosecution.  Although it has been pointed out that personal freedom is a right which has always been jealously guarded by our Courts, in general, it can be said that the enquiry into the lawfulness of a warrantless arrest tends to end once the preconditions for the exercise of the power, namely the jurisdictional facts, have been found to exist.”

[101] A fingerprint expert obtained another set of fingerprints, belonging to Njineli, from the Jetta.  It appears that whilst Njineli’s fingerprints were lifted on 13 November 2008, according to Tolbadi the results were only received in 2009.  It is not clear why that was so.  Tolbadi conceded that when arresting Njineli they obtained a warrant of arrest, his response as to why same was not applied to the plaintiff was that the plaintiff was not linked with fingerprints.

[102] It does further present a concern that the police had approximately 13 hours from 11.00 in the morning of 20 November 2008 to after 12 midnight on 21 November 2008, in which to assess the information obtained from Mpambo, and obtain a warrant of arrest.  Their failure to do so is attributed to them being very busy with investigations of this and other cases.  Jamjam testified that applying for a warrant slipped their minds.  This evidence is rather disconcerting.    

[103] Tolbadi gave a further contradictory version that they obtained information at night that the plaintiff was at his residence and could not apply for a warrant then and he did not know that there could be a magistrate on stand-by at that late hour.  This contradicts his earlier evidence and Jamjam’s testimony that the operation was organised after the statement was obtained and when Tolbadi came back to his office in the afternoon of 20 November 2008.

[104] In the circumstances, a number of options were open to the police before deciding on embarking on the drastic exercise of depriving someone of his liberty without a warrant in the manner they did.  This issue really goes to the exercise of discretion more than a question whether the information obtained was sufficient to form a reasonable suspicion.  This is so because the s 40 (1) (b) does not oblige the police to arrest upon forming a reasonable suspicion, it allows for discretion to be exercised.

[105] It is also worth noting that Mpambo herself was not arrested, but called for questioning, which approach is, in my view, appropriate because she may have had an innocent explanation as to why her fingerprints were on the vehicle.  A suspicion, that she had committed an offence may not, without more, be reasonable, simply because of the presence of the fingerprints on the vehicle.  

[106] In light of the gaps I have outlined, I am of the view that the information the police possessed fell short of the objective test required prior to effecting an arrest without a warrant.

Assault

[107] On this claim the onus to establish the assault, and damages related thereto, is on the plaintiff.  The plaintiff testified that force was used to handcuff him.  Handcuffs are used to try and subdue the arrestee.  The plaintiff testified that his hands were swollen because of the handcuffs.  He further testified that he was assaulted by being slapped, kicked and having a plastic bag placed over his head in order to suffocate him.

[108] In his particulars of claim, the plaintiff pleaded that he was physically pulled from the bedroom by the police officers, dragged by the neck, whilst others were suffocating him with a tyre tube.  He further alleged that, whilst in the police cells, he was denied medical assistance by one of the officers in charge, despite being in severe pain and bleeding.

[109] His evidence largely differs with what is contained in his particulars of claim.  Nowhere in his evidence did he state that he was dragged by the neck whilst others suffocated him with a tyre tube.  I accept that there might have been an error regarding the use of the word ‘tube’, as the plaintiff stated that the plastic bags that were used were referred to ‘tubes’.  The plaintiff, however, did not ask for an amendment of the allegation relating to a ‘tyre’.  He further did not testify that while in the police cells, he was denied seeing a doctor whilst bleeding.

[110] The plaintiff conceded that he did not sustain any visible injuries from the assault, apart from the injury on the wrists caused by handcuffs, but Sidzumo, however, spoke about the plaintiff bleeding from the mouth, top of the eye and having injuries on his arms and legs.  His sister also spoke about injuries on the arms and legs.  Sibeko also testified that the plaintiff was bleeding.  Sidzumo also testified that the plaintiff was hit with a golf stick, something the plaintiff never mentioned.

[111] These three witnesses also gave different versions of how the plaintiff was taken to the police vehicle.  At one stage, Sidzumo testified that he was carried, then she said that he was dragged.  According to MacKlay, he was dragged, while Sibeko on the other hand, stated that the plaintiff was held upside down and was being mocked as he went to the vehicle and spoke to the police along the way.  This is contrary to the plaintiff’s evidence that he was unconscious after he was beaten and suffocated in his room.  According to him, he regained consciousness inside the Condor.  The evidence of the plaintiff’s witnesses gave an impression of exaggeration.  Sidzumo and the plaintiff were consistent about the plaintiff being kicked and slapped through his face, the plaintiff, however, could not explain how it was possible that he could be kicked on his stomach and chest whilst standing, as according to him the police had ordered him to stand when they entered his room. Sidzumo on the other hand testified that the plaintiff had been sitting on the bed when the police hit him until he fell to the ground. MacKlay and Sibeko did not see the assault in the room.  MacKlay simply assumed that the plaintiff was being assaulted when she heard commotion and sounds from the plaintiff.  Sibeko also testified about further assault and suffocation in the Condor after the plaintiff was placed in there, which the plaintiff said nothing about. 

[112] Furthermore, the particulars of claim do not refer to the assault at the police station.  They confined it to the plaintiff’s home.  Be that as it may, the lack of physical injuries makes the allegation of sustained assault, of about three hours in the police station, as Sibeko testified, improbable.  MacKlay testified that the assault in the room took about an hour.  This differs from Sibeko’s version that the police were in the plaintiff’s house for about 2 to 3 minutes.

[113] Apart from various contradictions noted above, the credibility of Sidzumo and MacKlay’s evidence is questionable, in that they gave evidence regarding the police visiting the plaintiff’s house on 13 November 2008 regarding the Ikwezi robbery, something the plaintiff never testified about.

[114] What is also strange about Sidzumo’s evidence about the events of 13 November 2008, is that she stated that she received frantic “please call me” messages from the plaintiff, who told her that the police came to his home and kicked the door, asking about the robbery.  He then asked her to go to the police station with him to confirm that he was with her that night.  Surprisingly, when she called again the plaintiff said she did not have to come (as it appears that he went with his sister).  MacKlay also gave some bizarre evidence: first, that whilst at a friend’s place on 13 November 2008, at about 11 o’clock, she received a call that police were at her home looking for the plaintiff and when she arrived they were already gone.  She then changed this by saying that the police arrived and she called the plaintiff to find out where he was and he told her that he had taken Sidzumo to work.  The plaintiff never took her to work according to Sidzumo, but to the terminus and he is the one who called her as she was arriving at work.

[115] Furthermore, the police could not have gone to the plaintiff’s house on 13 November 2008, as they only received the statement from Mpambo on 20 November 2008 about Sammy who was driving a white Jetta, as stated beforehand.  I can only conclude that this evidence by these witnesses was a clear fabrication designed to assist the plaintiff’s case.

[116] Whilst seeming to suggest that he had advised the captain in the cells that he was injured, the plaintiff testified in cross examination that he only mentioned sore wrists and a sore throat.  The records, however, show that when he was detained, he was free from injuries.  The captain in the holding cells was not informed about the assault.  This was also not mentioned to the magistrate during the plaintiff’s appearances in court.  The plaintiff was, at all these times, legally represented.

[117] Given all these material contradictions, discrepancies and blatant inconsistencies in the evidence of the plaintiff’s witnesses, as indicated above, as well as the strangeness of the fact that no visible injuries were noted when the assault alleged was so severe, makes it difficult for me to find in the plaintiff’s favour.

[118] For these reasons, it is my view that the plaintiff has not been able to show on the balance of probabilities that he was assaulted by the police.

Quantum

[119] The plaintiff has since dropped his damages claim for patrimonial loss.  What is now left is the assessment of non-patrimonial damages.  These damages “…in the case of infringement to a person’s fama or dignitas, are not proved in the same manner as patrimonial damages. Awards are assessed by the Courts in an endeavour of effecting retribution for the injury.”  (Masiu v Ramos (A217/11) [2012] ZAFSHC 79 (26 April 2012) at para 19).

[120] In Rahim and 14 Others v The Minister of Home Affairs 2015 (7K6) QOD 191 (SCA), at para 27, it was held:

“[27]   The deprivation of liberty is indeed a serious matter.  In cases of non-patrimonial loss where damages are claimed the extent of damages cannot be assessed with mathematical precision.  In such cases the exercise of a reasonable discretion by the court and broad general considerations play a decisive role in the process of quantification.  This does not, of course, absolve a plaintiff of adducing evidence which will enable a court to make an appropriate and fair award.  In cases involving deprivation of liberty the amount of satisfaction is calculated by the court ex aequo et bono. Inter alia the following factors are relevant:

27.1   circumstances under which the deprivation of liberty took place;

27.2   the conduct of the defendants; and

27.3   the nature and duration of the deprivation.

Having regard to the limited information available and taking into account the factors referred to it appears to me to be just to award globular amounts that vary in relation to the time each of the appellants spent in detention.”   (Underlined for emphasis)

[121] The plaintiff is in his mid to late thirties.  He was unceremoniously woken up in the privacy of his room, whilst sleeping, in the early hours of the morning, by a heavy police presence.  It has not been disputed that his room was forcefully opened.  He was handcuffed and placed in a police van and, according to one of his witnesses, the neighbours came out to watch the incident.  It was not disputed that before his first court appearance he was placed in a small cell with one window and a burglar bar, with 15 other people with whom he had to put the mattresses together so they could all find a place to sleep.  He was traumatised by the ordeal and is fearful of the police.  He occasionally dreams of the incident but is not receiving counselling.  Sidzumo testified that he would wake up frightened when hearing the sound of a motor vehicle.

[122] It will be recalled in this case that the plaintiff can only claim for unlawful arrest up to his first appearance in court, which is from Friday 21 November 2008 to Monday 24 November 2008.

[123] In Olgar v The Minister of Safety and Security 2008 JDR 1582 (E) at para 16 , Jones J remarked that:

“In modern South Africa a just award for damages for wrongful arrest and detention should express the importance of the constitutional right to individual freedom, and it should properly take into account the facts of the case, the personal circumstances of the victim, and the nature, extent and degree of the affront to his dignity and his sense of personal worth.  These considerations should be tempered with restraint and a proper regard to the value of money, to avoid the notion of an extravagant distribution of wealth from what Holmes J called the 'horn of plenty', at the expense of the defendant.”     

[124] The following statement by Bosielo AJA, as he then was, in Minister of Safety and Security v Tyulu 2009 (5) SA 85 (SCA), at para [26], is apposite:

“In the assessment of damages for unlawful arrest and detention, it is important to bear in mind that the primary purpose is not to enrich the aggrieved party but to offer him or her some much-needed solatium for his or her injured feelings.  It is therefore crucial that serious attempts be made to ensure that the damages awarded are commensurate with the injury inflicted.  However, our courts should be astute to ensure that the awards they make for such infractions reflect the importance of the right to personal liberty and the seriousness with which any arbitrary deprivation of personal liberty is viewed in our law.  I readily concede that it is impossible to determine an award of damages for this kind of injuria with any kind of mathematical accuracy.  Although it is always helpful to have regard to awards made in previous cases to serve as a guide, such an approach if slavishly followed can prove to be treacherous.  The correct approach is to have regard to all the facts of the particular case and to determine the quantum of damages on such facts (Minister of Safety and Security v Seymour 2006 (6) SA 320 (SCA) at 325 para 17; Rudolph and Others v Minister of Safety and Security and Another 2009 (5) SA 94 (SCA) ([2009] ZASCA 39) paras 26-29).”

[125] Having assessed all the circumstances in this case, the plaintiff’s age, the circumstances under which he was arrested, the nature  and the duration of detention relevant for consideration in this case, the alleged emotional effect of the arrest on him, bearing in mind that no expert or medical evidence was provided in this regard, and the evidence regarding the cell in which he was placed during that weekend, I am of the view that it would be fair and appropriate to award damages in the amount of R15 000. 00.

Costs

[126] The plaintiff has been successful only in respect of the claim of unlawful arrest.  The claim of assault has failed.  It seems to me fair and just that the defendant be ordered to pay only half of the plaintiff’s costs in these respects.  Costs relating to the application for the amendment of the particulars of claim brought by the plaintiff on 24 April 2017, which stood over for later determination, would be paid by the plaintiff.  The Court, however, would request parties to make submissions as to why it should not order such costs de bonis propiis against the plaintiff’s legal representatives.         

[127] In the result, the following order is made:

1.        The claim of assault is dismissed.

2.        The arrest of the plaintiff is declared to have been unlawful.

3.        The defendant is ordered to pay the sum of R15 000.00 (fifteen thousand rand) to the plaintiff as damages.

4.        The defendant is ordered to pay interest, in respect of the aforesaid amount at the prescribed rate from date of judgment to date of final payment. 

5.        The defendant is to pay 50% of the plaintiff’s costs on a party and party scale, including all costs that stood over except for costs related to the application for amendment of the particulars of claim brought on 24 April 2017.

6.        The plaintiff is to pay costs related to the application for the amendment to the particulars of claim.  In this regard, however, parties are directed to address the Court as to why it should not order such costs de bonis propiis against the plaintiff’s legal representatives.      

                                                                          _____________________

                                                                           N P BOQWANA

                                                                           Judge of the High Court

                                                                       

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