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In the HIGH COURT OF south africa

FREE STATE PROVINCIAL DIVISION     

 

                                                                                                 

                             Case No: 2649 & 2675/2018[1]

In the matter between:

ROBERT GEORGE KANES[2]                                                                                  Plaintiff

STELLA TLALENG MOTAUNG[3]                                                                          Plaintiff

 

and

 

MINISTER OF POLICE[4]                                                                                         Defendant

 

Coram:               Opperman, J

Heard:                Trial: 19-20 November 2019, Argument 31 January 2020

Delivered:          24 February 2020[5]

Summary:          Unlawful arrest, detention and assault – evaluation of irreconcilable versions in civil trials – evaluation of police statements – failure to call witness   

JUDGMENT

I INTRODUCTION

[1]        On 12 January 2018 the plaintiffs gathered with their families at Ms Motaung’s home to celebrate her birthday. In the meanwhile, the South African Police Services embarked on a crime prevention operation in the vicinity. Ms Motaung’s home is situated next to an illegal shebeen that is a source of much crime. Information received at the shebeen directed the police to her house and consternation erupted. Two forces collided when the police strived to execute their duties and the plaintiffs wanted for their peace and privacy. The fracas caused rage and antagonism with both “groups”. The arrest of Motaung and Kanes without warrants[6] and alleged assault in the process at the police station was the outcome. Kruger[7] described the dichotomy in law in scenarios such as these aptly:

“Arrest by peace officer without warrant-This section gives peace officers extraordinary powers of arrest. Although arrest is a necessary weapon in the fight against crime, it is an infringement of personal liberty and often also of human dignity. The courts will carefully scrutinise whether the infringement is legally in order (Minister of Law and Order and Another v Dempsey 1988 (3) SA 19 (A) at 38C). At such an infringement of personal freedoms and rights it is important to bear in mind that one is here concerned with the exercise of state power which, according to the principle of legality, has its source in the Constitution (Fedsure Life Assurance Ltd and Others v Greater Johannesburg Transitional Metropolitan Council and Others [1998] ZACC 17; 1999 (1) SA 374 (CC) pars [56]-[59]; President of the Republic of South Africa and Others v South African Rugby Football Union and Others 2000 (1) SA 1 (CC) par [148] and Pharmaceutical Manufacturers Association of South Africa and Another in re: Ex parte President of the Republic of South Africa and Others [2000] ZACC 1; 2000 (3) BCLR 241 (CC) par [20].”

 

[2]        The claims that caused the trial are based on said alleged unlawful arrest, detention (both in non-compliance with section 40 of the Criminal Procedure Act 51 of 1977[8] and alternatively with lack of proper discretion) and assault at the hands of the South African Police Services (SAPS). The defendant denies the allegations and claims lawful arrest in terms of section 40 of the Criminal Procedure Act 51 of 1977 and denies assault. 

“It is denied that the arrest was wrongful and unlawful and the Defendant pleads that the arresting officer was a peace officer who had a reasonable suspicion that a Schedule 1[9] offence was committed, alternatively an offence was committed in his presence. It is specifically denied that the Plaintiff suffered damages at all.

More specifically it is denied that the plaintiff was assaulted as alleged or at all and sustained injuries as a result of the alleged assault as alleged or at all. The defendant pleaded that the plaintiff threatened the lives of the police officials present with a knife and that they used the necessary force to overcome him and neutralise the treat to the officials. It is denied that the medical expenses were incurred for the amounts claimed or at all.”

 

[3]        It is trite that the members involved acted, at all times, within the course and scope of their employment with the defendant. 

 

[4]        The plaintiffs claim that they suffered deprivation of freedom, Contumelia, discomfort, emotional stress, psychological trauma, embarrassment, physical injuries and consequent medical expenditures.

 

[5]         Mr Kanes alleges his physical, injuries due to the assault, to consist of:

“A left ankle severely swollen with articular fibula fracture, left elbow abrasions, back of left shoulder sustained multiple abrasions, lacerations to the right eye with severe bruising and swelling, anterior chest severely swollen with red and tender abrasions, abrasion and swelling to the right eye socket and severe emotional and psychological  trauma with long term physical impairment.”

His total claim amounts to R420 000.00 with interest and costs of the suit.

 

[6]        Ms Motaung claims to have suffered injuries to her lower back, both legs, head and chest. Her total claim is also for the amount of R420 000.00 with interest and costs of the suit.  

 

[7]        The parties agreed to have the merits adjudicated foremost and the court ordered separation.

 

[8]        The parties settled the onus as per law to be on the defendant to prove lawful arrests and detention and the plaintiffs to prove the assaults.

 

[9]        Their respective cases were presented by oral evidence and some documents. The plaintiffs called four witnesses. The two plaintiffs, Lucy Khetsi an eyewitness and Dr Joubert on the alleged injuries sustained. The defendant called Sergeant Sefatsa, Constable Pokedi, Constable Taaso and Constable Lichakane. The four policemen were alleged to have been directly involved in the perpetration of the violations.

 

[10]        The evidence culminated into two irreconcilable versions of the facts.

1.      Mr Kanes testified to have been assaulted by members of the SAPS on 12 January 2018 at Motaung’s residence and thereafter at the police station. He was arrested at the police station and subsequently released from custody on the 13^th of January with a warning to appear at the Magistrate’s Court on 15 January 2018. The prosecutor did not prosecute. Defendant admitted the arrest, as pointed out, but it to have been executed legally. The first assault is denied. The assault at the police station is disputed on the basis that the plaintiff threatened the lives of the police officers with a knife and that they used the necessary force to neutralise the threat.

2.      Ms Motaung, after the events at her home, went to the police station where she was assaulted on the 12^th of January 2018, arrested in the late-night, early-morning of the 13^th of January.  She was released from custody on the 13^th of January and warned to appear at the Magistrate’s Court. The prosecutor declined to prosecute. Defendant admitted the arrest but maintained that the plaintiff insulted and assaulted members of the SAPS at the charge office and as result was forcefully brought under control and arrested.

3.      The reasons for the withdrawal of the cases by the prosecutor are disputed.

 

[11]      It is trite after the conclusion of the respective cases that:

1.      The injuries as claimed were sustained during the 12^th/13^th January 2018.

2.      The plaintiffs were arrested and detained in the morning hours of 13 January 2018.

3.      Motaung was charged with “Drunk in Public”[10] and released on the 13^th of January with a warning to appear in court. The complainant and officer that effected the arrest was Constable NT Lichakane. The matter was struck from the court roll on 9 February.

4.      Kanes was charged with the crimes of “malicious injury to property” after he allegedly torn the shirt of one of the members, “possession of a dangerous weapon” (the knife), “assault on a police officer” and “intimidation” and released on 13 January 2018 with a warning to appear in court.

5.      Kanes opened a case of assault against the police officers on 15 January 2018.

 

II THE LAW

Arrest and detention

[12]      I pause to refer to the two major aspects that demand discussion; the law of arrest and the evaluation of evidence in a civil trial.

[13]      Stretch, J summarised the law on arrest precise and as it is in Barnard v Minister of Police and Another (CA286/18) [2019] ZAECGHC 58; [2019] 3 All SA 481 (ECG); 2019 (2) SACR 362 (ECG) (31 May 2019) at [6] to [12]:[11]

“[6]      It is trite that any arrest or detention is prima facie wrongful. It is accordingly not necessary to allege or prove wrongfulness. The defendant in the court a quo must allege and prove the lawfulness of the arrest and detention.^[12] Consequently, where police have arrested and detained a person and the arrest and detention are common cause or not disputed (as in the matter before us), the onus of proving lawfulness rests on the police.^[13]

[7]        Because an arrest and detention are prima facie wrongful, the defendant normally assumes the duty to begin in an effort to establish justification, as there are at the end of the day, no other defences available to the defence, save for placing the plaintiff’s factual allegations in issue.

[8]        An arrest without a warrant is lawful if, at the time of the arrest, the arresting officer (inter alia) held a reasonable belief that the arrestee had committed an offence referred to in the first schedule to the CPA. The jurisdictional facts for such a section 40(1)(b) defence are that:

a.           The arrestor must be a peace officer.

b.           The arrestor must entertain a suspicion.

c.           The suspicion must be that the arrestee had committed an offence referred to in schedule one.

d.          The suspicion must be based on reasonable grounds.

[9]        Once these jurisdictional facts are present, the discretion whether or not to arrest arises.^[14]

[10]     The discretion must be exercised in good faith, rationally and not arbitrarily.^[15] This requires that it must be exercised with the objective of bringing the subject before court. Whether or not the discretion was properly exercised should not be judged on the standard of what is best in hindsight. Guidance as to how the discretion ought to be exercised is set forth in the Constitutional Court decision of MR v Minister of Safety and Security^[16], where it was emphasised that the word ‘may’ (as opposed to ‘must’ or ‘shall’) in section 40(1) was permissive and not mandatory or peremptory, allowing the arresting officer the discretion to weigh and consider the prevailing circumstances in deciding whether an arrest was necessary. It allows for a measure of flexibility because the enquiry is fact-specific. It is ‘neither prudent nor practical to try to lay down a general rule and circumscribe the circumstances under which police officers may or may not exercise their discretion’, since to do so ‘might have the unintended consequence of interfering with their discretion and, in the process, stymie them in the exercise of their powers in pursuit of their constitutional duty to combat crime’.[17]

[11]     It is accordingly important, given that arrest is a drastic invasion of a person’s right to liberty and is an impairment of dignity, that courts inquire on a case by case basis whether the officer did in fact exercise this discretion at all, and if so, whether he did so properly and in compliance with the Bill of Rights (my emphasis).

[12]     The arresting officer must exercise his discretion properly, in the light of the prevailing circumstances, in order to decide whether an arrest is necessary.^[18]

 

Evaluation of evidence

[14]      To see the truth after a trial where the parties caused irreconcilable versions calls for divine powers that courts do not possess.

 

[15]      In an endeavour to serve justice the law had to develop rules and process that will come as close as possible, in each specific case, to acceptable order and reality. It is vital to realise that veracity must prevail. The administration of justice is not a game that causes the party with the best story to “win”. It is much more. It can best be described as a synthesis of accuracy and moral certainty.

 

[16]      The Supreme Court of Appeals in Dreyer and another NNO v AXZS Industries (Pty) Ltd 2006 (5) SA 548 (SCA)[19] confirmed (at [30]) that the proper approach in resolving factual disputes where there are two irreconcilable versions is to be found in National Employers' General Insurance Co Ltd v Jagers 1984 (4) SA 437 (E) at 440D - H and Stellenbosch Farmers' Winery Group Ltd and Another v Martell et Cie and others 2003 (1) SA 11 (SCA) in paras [5] - [7] at 14 - 15.

1.       The test by Wessels JA in National Employers' Mutual General Insurance Assocation v Gany 1931 AD 187 at 199 is that:

“where there are two stories mutually destructive, before the onus is discharged, the Court must be satisfied upon adequate grounds that the story of the litigant upon whom the onus rests is true and the other false”

2.      But in Koster Ko-operatiewe Landboumaatskappy Bpk v SuidAfrikaanse Spoorweë en Hawens 1974 (4) SA 420 (W) at 426 - 7 and African Eagle Life Assurance Co Ltd v Cainer 1980 (2) SA 234 (W) Coetzee J at 237 cautioned that the approach to the problems of proof as laid down in the Gany's case:

“only applies in cases where there are not probabilities one way or the other. Where there are probabilities, inherent or otherwise, there is no room for this approach.”

3.       The sturdy law laid down in the Stellenbosch Farmers' Winery Group - case is that:

“3.1     … in any civil case, as in any criminal case, the onus can ordinarily only be discharged by adducing credible evidence to support the case of the party on whom the onus rests.

3.2       The party on whom the onus rest and where there are two mutually destructive stories can only succeed if he satisfies the Court on a preponderance of probabilities that his version is true and accurate and therefore acceptable…,

3.3       and that the other version advanced by the defendant is therefore false or mistaken and falls to be rejected.

3.4       In deciding whether that evidence is true or not the Court will weigh up and test the plaintiff's allegations against the general probabilities.

3.5       The credibility of a witness will therefore be inextricably bound up with a consideration of the probabilities of the case…,

3.6       and, if the balance of probabilities favours the plaintiff, then the Court will accept his version as being probably true.

3.7       If however, the probabilities are evenly balanced in the sense that they do not favour the plaintiff's case any more than they do the defendant's, the plaintiff can only succeed if the Court nevertheless believes him and is satisfied that his evidence is true and that the defendant's version is false.”

 

4.       The judgment goes on to describe the technique to come to a conclusion on the disputed issues a court must make findings on (a) the credibility of the various factual witnesses; (b) their reliability; and (c) the probabilities.

 

The finding on the credibility of a particular witness will depend on factors such as (i) the witness' candour and demeanour in the witness-box, (ii) his bias, latent and blatant, (iii) internal contradictions in his evidence, (iv) external contradictions with what was pleaded or put on his behalf, or with established fact or with his own extra curial statements or actions, (v) the probability or improbability of particular aspects of  his version, (vi) the calibre and cogency of his performance compared to that of other witnesses testifying about the same incident or events.

A witness' reliability will depend, apart from the factors mentioned under (a)(ii), (iv) and (v) above, on (i) the opportunities he had to experience or observe the event in question and (ii) the quality, integrity and independence of his recall thereof.

5.      Finding of probabilities implores an analysis and evaluation of the probability or improbability of each party's version on each of the disputed issues.

 

6.      The findings on credibility, reliability and probability must be synthesised into whether the party burdened with the onus of proof has succeeded in discharging it.

 

7.       The complex case occurs when a court's credibility findings compel it in one direction and its evaluation of the general probabilities in another. The more convincing the former, the less convincing will be the latter. But when all factors are equipoised probabilities prevail.”

 

III THE EVIDENCE

Case for the plaintiffs

[17]        TLALENG STELLA MOTAUNG was a 34-year-old lady at the time of the incident. Her standard of education is reflected as grade 12 and she works as a process controller in Clocolan. On 12 January 2018 she was celebrating her birthday and had friends over to her home, amongst them Lucy Khetsi and Kanes.

 

[18]        She struck the court as a neatly dressed and eloquent lady that was simply offended by the incident. Although she endeavoured to hide her dismay during testimony in court, she was at some stages emotional about the incident. Apart from being angry at the unfairness she perceived; she did not portray any vengefulness. She went on to narrate the events with basic detail. I warn myself that there is a probability that she might have acted out or behave badly and socially unacceptable and in a self-defeating manner especially in venting her painful emotions of frustration against the police and the situation on the night of the incident. Her conduct ignited the reaction of the police and they became just as agitated and frustrated. They were busy with crime prevention; doing their work and acted on information. That said; it does, however, not condone illegal actions. It can also be argued that she could have waited to report the matter later; as she did at the IPID, Free State and which culminated into an inquiry.But hindsight is twenty- twenty.

 

[19]        She testified how SAPS members arrived between 22h00 and 23h00 at her house and accused her of hiding alcohol in her house. She denied it and explained the party they were having. At the same time, she heard Kanes saying that the SAPS members should not hit him. She noted the SAPS members screaming and shouting at him in an aggressive manner.

 

[20]        After the SAPS members left, Kanes told her that he had been slapped by a SAPS member by the name of Samson Pokedi. She was perturbed by the invasive and untoward conduct of the SAPS and wanted to report the matter and get an explanation for this.

 

[21]       She was not under the influence of alcohol since she has just returned from a park with the children. Motaung denied being heavily intoxicated as put to her by defendant’s counsel, as she had only one, but no more than two “Hunters Extreme” drinks at the time when the SAPS members approached her at her home.  It was not Motaung’s intention to leave her home that evening. It came about when she needed to report the incident to the SAPS.

 

[22]       Upon arrival at the police station, the same police officers who were at her house earlier, were seated in a Quantum minibus.  Motaung entered the police station and she was followed in by the police officers. While busy explaining herself to a police officer on duty, she was approached by the police officers that were at her house earlier, among them, Pokedi.  After a short discussion she was assaulted by several police officers who slapped her with open hands and clenched fists.

 

[23]       Motaung testified that Kanes arrived only a few minutes before the police arrived at her home. He was there to collect Khetsi, with whom he was in a relationship. She knew Kanes but they did not work at the same place.

 

[24]       At her home and at the police station Motaung wanted to show the police officers her identity document as proof that it was her birthday and that is why she had friends over.  It was important to Motaung not to be associated with illicit alcohol sales or possession, as she was accused of.  She was also not happy with the manner in which she and Kanes were treated by the police, which prompted her to call at the local police station, knowing it was open 24 hours a day with on - duty officers.

 

[25]       Kanes entered the police station a short while after Motaung and upon his entry, the police officers who assaulted Motaung immediately went over to Kanes and started to assault him.

She confirmed on several occasions that she never saw a knife in the charge office or in Kanes’ possession.

 

[26]        During cross-examination it was put to her that she and her friends were drunk and that they swore at and assaulted the police officers in the station.  This she denied.  It eventuated that only Motaung was arrested for allegedly being drunk in public, but not for any other offence, i.e. or crimen injruia or assault.  She was dragged over the floor to the holding cells. Her, “also drunk friends” were not arrested. She sustained an injury to her right leg during her assault.

 

[27]        She confirmed that the police officers, specifically Pokedi, made racial insults towards Kanes as a “poor white person”.  The area at her home was well lit and she could clearly observe Pokedi having interaction with Kanes.

 

[28]        She was detained until 07h30 on 13 January 2018, when she was released and warned to appear at the Clocolan Magistrates’ Court. She was informed by the Prosecutor that her matter would not be enrolled and she would not be prosecuted.

 

[29]      During cross examination she confirmed her signature to the statement on the Police Case

  Docket. She held unequivocally that the content of the statement was not read back to her nor was she given an opportunity to read the statement before she was made to sign it.

 

[30]        The defendant argued that she was confronted with the facts that even though she testified that Constable Pokedi hit Mr Kanes in his face, at her house; this important allegation is not contained in her statement made to the SAPS on 15 January 2018, three days after the incident; reference is only made of an alleged insult towards Kanes.  Pokedi denied the alleged assault and furthermore no allegation of this alleged assault is set out in paragraph 12.2 of the amended particulars of claim.  Paragraph 12.1 thereof still refers to the Plaintiff’s “permanent place of residence”, as well as the unsubstantiated allegations of selling alcohol without a permit.

 

[40]        In her written statement to the police she alleged: that upon arrival at the police station, members of SAPS insulted them and followed them into the charge office; that Kanes attempted to stop the alleged assault upon her; that her friend Thakane was also assaulted and that none of these allegations were confirmed by Motaung under oath.  Neither was Thakane called as a witness.

 

[41]        I pause to deal with the approach to situations where witnesses are confronted with their statements.

 

[42]        In S v Govender And Others 2006 (1) SACR 322 (E) Nepgen J discussed the issue extensively. He pointed out that it is important that it should always be borne in mind “. . . that police statements are, as a matter of common experience, frequently not taken with the degree of care, accuracy and completeness which is desirable. . .'.  (S v Xaba  1983 (3) SA 717 (A) at 730B - C.)  

“Furthermore, as was pointed out in S v Bruiners en 'n Ander 1998 (2) SACR 432 (SE) at 437h, the purpose of a police statement is to obtain details of an offence so that a decision can be made whether or not to institute a prosecution, and the statement of a witness is not intended to be a precursor to that witness' evidence in court. Quite apart from that, however, there are other problems associated with police statements. They are usually written in the language of the person who records them. Frequently the use of an interpreter is required and, invariably, such interpreter is also a policeman and not a trained interpreter. The statement, according to my experience, is also usually a summary of what the policeman was told by the witness and is expressed in language or in terms normally used by him and not necessarily the witness. I am of the view that the fact that discrepancies occur between a witness' evidence and the contents of that witness' police statement is not unusual nor surprising. Whenever there are contradictions between the police statement of a witness and the evidence of such witness, or where there is no reference in a police statement to what can be considered to be an important aspect of that witness' testimony, the approach to be adopted in regard thereto is as described in S v Mafaladiso en Andere 2003 (1) SACR 583 (SCA) at 593e - 594h.”

 

[43]          I agree and will apply the approach that:

“The juridical approach to contradictions between two witnesses and contradictions between the versions of the same witness (such as, inter alia, between her or his viva voce evidence and a previous statement) is, in principle (even if not in degree), identical. Indeed, in neither case is the aim to prove which of the versions is correct, but to [establish] that the witness could err, either because of a defective recollection or because of dishonesty. The mere fact that it is evident that there are self-contradictions must be approached with [circumspection] by a court. Firstly, it must be carefully determined what the witnesses actually meant to say on each occasion, in order to determine whether there is an actual contradiction and what the precise nature thereof [is]. In this regard the adjudicator of fact must keep in mind that a previous statement is not taken down by means of cross-examination, that there  I may be language and cultural differences between the witness and the person taking down the statement which can stand in the way [of the correctness] of precisely what was meant, and that the person giving the statement is seldom, if ever, asked by the police officer to explain [his or her] statement in detail. Secondly, it must be kept in mind that not every error by a witness and not every contradiction or deviation affects the credibility of a witness. Non-material deviations are not necessarily relevant. Thirdly, the contradictory versions must be considered and evaluated on a holistic basis. The circumstances under which the versions were made, the proven reasons for the contradictions, the actual effect of the contradictions with regard to the reliability and credibility of the witness, the question whether the witness was given a sufficient opportunity to explain the contradictions - and the quality of the explanations - and the connection between the contradictions and the rest of the witness' evidence [must], amongst other factors, be taken into consideration and weighed up. Lastly, there is the final task of the trial Judge, namely to weigh up the previous statement against the viva voce evidence, to consider all the evidence and to decide whether it is reliable or not and to decide whether the truth has been told, despite any shortcomings”

 

[44]        “It would seem that, because of their station in life, their lack of education, their immaturity, and/or a variety of other reasons, they are so in awe of the police that when they are told that a policeman has written down something which purports to be what they told that policeman they feel that they could get into trouble if they deny that they in fact said that. But even intelligent, educated and sophisticated people at times react inappropriately when faced with a situation such as that under discussion. Quite obviously these are factors which must be taken into account when assessing the credibility and the reliability of that particular witness, but it does not necessarily mean that an unsatisfactory and unfavorable reaction requires the evidence of that witness to be rejected. What is necessary, is that regard must be had to the type of person the witness is when deciding what weight should be attached to his or her evidence. The reaction of such witness in the witness box when he or she is asked to deal with contradictions in the police statement of that witness must be evaluated by also having due regard thereto. Finally, on this aspect, even if it is concluded that a witness has been untruthful in his or her endeavors to explain any contradictions between his or her police statement and evidence, this does not mean that all the evidence of that witness should be rejected.

 

[45]        The counsel for the defendant held that neither Motaung nor Kanes laid any criminal charges against the SAPS for alleged assault.  (This is not correct because Kanes opened a case of assault.) They only attended the disciplinary hearing of the police officials, when, according to Sefatsa, they all deviated from their statements.  According to Sefatsa, Stella was in tears. The reticence in laying criminal charges gives weight to the argument that Motaung and Kanes were indeed the aggressors at the police station and that they accepted whatever injuries they might have suffered during the fracas as due to the prevailing circumstances. She testified that Sefatsa was one of the persons who assaulted her at the police station, as well as Kanes.  This is not corroborated, and Sefatsa claims that he was in a different office at the time. The submission that Stella was a trustworthy witness is therefore disputed.

 

[46]        Counsel for the plaintiff pointed out that Motaung was a sincere and truthful witness, whom the Court can believe and accept her testimony as the true version of events. In its Plea the Defendant pleaded that Motaung and her friends at the police station assaulted and insulted members of the SAPS.  Motaung’s Arresting Officer, Constable Lichakane denied that Motaung was in any way violent or arrested for assault or insulting police officers, contrary to what has been pleaded and the version as put to Motaung by Defendant’s Counsel. Motaung denied any aggressive conduct or assault of the SAPS members.

 

[47]        It was submitted by counsel for the plaintiffs that Sefatsa and other police officers earlier approached Motaung at her home, associated her with illicit alcohol trading and with Kanes, a white male person, towards whom racial slurs were made.  At the police station this prompted Pokedi and other police officers to immediately be aggressive towards Motaung and resulted in her being assaulted.  She was clearly assaulted to teach her a lesson by police members in a position of authority.

 

[48]        I accept the evidence of Ms Motaung as reliable and credible. Her evidence much however still be measured to the probabilities of the case as a whole.

 

[49]        Robert George Kanes[20] who at the time of the arrest was 55 years of age.  He consistently weighs 62 to 65 kilograms and is 5.8 feet in length. He is an unassertive and modest man that was employed at the municipality. He can be described as almost naïve in the rendering of his testimony.

 

[50]        On 12 January 2018 at the time of his arrest, he was in a relationship with Lucy Khetsi.  Subsequent to the incident he and Khetsi got married and they have a child.  Against this backdrop the evidence of the defendant’s witnesses will be discussed, insofar it was alleged that Kanes called Pokedi a “kaffir”.  Such averments as testified to is unlikely to be true having regard to Kanes’ serious relationship with a black woman and his friendship with other black persons.  Counsel for the plaintiff held that this was rather an instance where Pokedi played the race card under the wrong circumstances.

 

[51]        On the fatal day and returning from work, Kanes went to Motaung’s home to pick up his girlfriend at the time, Khetsi.  He arrived close to 22h00. Not more than 5 to 7 minutes later police officers arrived at Motaung’s home. He did not have any time to consume more than a sip or two of an alcoholic drink.

 

[52]        After hearing a racket, he made enquiries, where he was approached outside the house by Pokedi who insulted him with racial slurs and then slapped him through his face.  Kanes was among other things called a leqaqana, translated from Sotho as a “poor white dog” by Pokedi. Kanes then re-entered the house and he went and sat at the television to calm down. The police officers left.

 

[53]        Motaung wanted to go to the police station to report the incident, and they decided to go together.

 

[54]        At the police station, Motaung went inside and Kanes finished smoking a cigarette, where after he also entered the police station.  Upon entering the police station, he could see and hear Motaung speaking to police officers.

 

[55]        Immediately when Pokedi saw Kanes, he approached him at the entrance of the police station, again making racial slurs towards Kanes.  Pokedi then started to assault Kanes, where after Taaso joined in. Kanes was during his assault pushed over a flowerpot and he fell to the ground.

 

[56]        Kanes testified that Pokedi was strongly built (“fris”), compared to his own frail build.

             

[57]        He was then put in a holding cell where he was further assaulted.  His glasses were damaged during his assault, without which he could not properly see.

 

[58]        A female police officer at some stage wanted him to sign documents, but he was unable to read or sign the documents, as his glasses were damaged, and he had injuries to his face and eyes.  He enquired from the female officer if he was going to be detained, at which time he took a folded pocket knife from his pants and handed it to the female officer as there were other inmates in the cell and he did not know what to expect from them.  He carried this knife with him every day as he also utilised it in doing his work as a technician. 

 

[59]        This officer that was identified and available, was not called by the defendant nor the plaintiff.  

Schmidt[21] with reference to, among others, Raliphaswa v Mugivhi [2008] ZASCA 17; 2008 4 SA 154 (SCA) and Tinto v Minister of Police  2014 (1) SACR 267 (ECG) depicted the principles:

1.      When a litigant fails to adduce evidence about a fact in issue, whether by not giving evidence himself or by not calling witnesses, it goes without saying that he runs the risk of his opponent's version being believed.

2.      If he bears an evidential burden and does nothing to discharge it he will necessarily suffer defeat.

3.      The fact that evidence is not adduced to contradict an opponent's version does not necessarily mean, however, that that version will be accepted.

4.      Whether it is accepted depends on the probative strength of the opponent's evidence, that is to say on whether it really was strong enough to cast an evidential burden on the side failing to present evidence.

5.      Ultimately, therefore, it is the application of the relevant standard of proof to all the facts of the case that determines whether a party's failure to give evidence will be fatal.

6.      It stands to reason that failure to give evidence does not shift the burden of proof.

7.      Another more difficult question is whether an unfavourable inference can be drawn if evidence is not given. Where both sides can be expected to call a witness who is equally available to both and neither calls him, the inference may be drawn that he would give evidence which is unfavourable to both, the strength of each inference depending upon circumstances. Where one party however does not have an opportunity equal to the other party to call the witness, an inference should not be drawn against the party in the weaker position. Thus, it may happen that although an available witness is not called by either of the parties, an adverse inference is nevertheless not drawn against either of them.

8.      Such an inference can also not be drawn if insufficient information is available about the point in issue. There must be some grounds for an unfavourable inference.

 

[60]        Kanes was released from custody during the afternoon of 13 January 2018.

 

[61]        Kanes denied calling Pokedi a “kaffir”, or that he threatened him or that he attacked him with a knife inside the police station, as alleged or at all. Counsel for the plaintiff argued; and correctly so, that in considering these allegations made against Kanes, the following factors need to be considered:

1.      Kanes had barely arrived at Motaung’s house when the police arrived, when he was racially abused and assaulted by Pokedi.  No mention of this visit to Motaung’s home was made by Pokedi or Taaso in any of their statements.

2.      After being racially abused and assaulted at Motaung’s home, Kanes calmed down and sat watching television, when Motaung suggested they report the incident to the police.

3.      At the police station, Kanes did not enter first, he finished smoking a cigarette and only then entered.  Upon his entry he was immediately approached and assaulted.

4.      Kanes was met already at the entrance of the police station and barely given an opportunity to properly enter and approach Motaung to also report the incident to the police officer on duty.

5.      With the intention to report the incident to the police, it would serve no purpose for Kanes to enter the police station and wield a small pocketknife around, threatening fully armed police officers.  On Pokedi’s version, who only saw Kanes for the first time at the police station, Kanes would not have directed any anger at him specifically as he had no recent history of a dispute with him.

6.      Kanes was not merely arrested, he was seriously injured and clearly assaulted.  Neither Pokedi nor Taaso disputed the injuries sustained by Kanes.

 

[62]        Kanes testified that he was never searched or any items removed from his person.  He remained in possession of keys, cigarettes, a lighter and shoestrings when he was detained.  At approximately 06h00 on 13 January 2018 Khetsi arrived at the police station to collect their house keys from him. He then still had it in his possession and handed it to a police officer to hand to Khetsi.

[63]        A co-worker from the municipality arrived shortly after his arrest to collect the keys to the municipal vehicle driven by Kanes. Kanes confirmed this.

 

[64]        Kanes confirmed his statement on the Police Case Docket but denied that it was read back to him or that he was given the opportunity to read it before he was made to sign it.  He did not know of the reason for his arrest at the time when he was detained or when his statement was taken.  The Notice of Rights form was not signed by Kanes, but he denied that he refused to sign it.  He could not see what the documents were as presented to him by a female police officer. Strangely; the witness that could have confirmed the alleged recalcitrant behaviour by Kanes, one Lerato Ramanamane, was not called by the defendant.

 

[65]        Kanes was not the only person assaulted by police officers the evening of 12 January 2018.  Khetsi and her sister Thakani was also assaulted.  Thakani was assaulted for taking a video of the incident and her phone was broken as a result.

 

[66]        Kanes did not see Motaung being assaulted, but he could hear her scream.  He knew something untoward was going on.

 

[67]        Kanes confirmed his injuries as contained in his J88 Medical Report. He confirmed his injuries as clearly visible on photos, which was accepted into evidence without any objection from the defendant. Some of the injuries do not correlate with falling over a plant holder.

 

[68]        Despite the serious allegations of an attack with a knife levelled against Kanes, Pokedi and Taaso did not demand criminal prosecution of the case. It panned out later that the matter was set down for trial but due to the fact that the complainant was late the matter was withdrawn. That said; the complainants did not demand prosecution.

 

[69]        Counsel for the plaintiff concluded that Kanes was a sincere and honest witness, and did not present as a person capable or inclined to walk into a police station wielding a small pocketknife and threaten to kill a fully armed police officer in the presence of other fully armed police officers, also calling a police officer a “kaffir”.

 

[70]        Counsel for the plaintiffs argued that his testimony can be labelled as believable and reliable.

 

[71]        The defendant attacked the credibility and trustworthiness of Kane’s evidence via his statement to the police. As I pointed out; he did admit that he signed his statement to the police on 15 January 2018. He denied that it was read back to him and this tool applied by the defendant failed. It has no value at all.

 

[72]        The issue of the knife is vital and demand consideration by the court. Counsel for the defendant surmised that Kanes fabricated his version:

“4.5.1        He was aware from the pleadings of defendant’s version that he was arrested for suspicion of committing a Schedule 1 offence, alternatively an offence committed in the presence of the arresting officer.

4.5.2          The Defendant’s version is that he attempted to assault police officers with the knife, hence the arrest.

4.5.3          He therefore had to put a version forward as to how the knife came into the possession of the police.

4.5.4          What he did not realise was that the knife had already been entered into evidence in terms of the SAPS 13 file.  If he had voluntarily handed the knife over, the same would have been entered into the SAPS 22 file in respect of possessions of detainees.  It would have been returned to him when he was discharged. The SAPS 22 register was presented to Court and revealed no entry for the relevant time period.  The evidence corroborated these facts.

4.5.5          His version of his belt and shoelaces being handed in is likewise suspicious. Pokedi testified that Kanes was wearing an overall with rubber boots. No belt nor lace were recorded in the SAPS 22.

4.5.6          His version is not being searched before being held in a cell belies belief.  The officials were all experienced policemen who knew the procedures. He knew that the knife had already been confiscated and therefore had to fabricate a version as to why he was in possession thereof.

4.5.7          If his version was true, then it would mean that the Defendant and Pokedi were presented with the greatest of fortune, by suddenly being presented with a weapon which they could fabricate a defence with.  In other words, Pokedi upon discovering somehow that a weapon was suddenly in the possession of the police, decided to enter the same into the SAPS 13 register, to cover up whatever possible consequences may arise.  This is just too much for coincidence.

4.5.8          The Plaintiffs’ cases hinge and regrettably fall upon this aspect.  The probabilities overwhelmingly favour the Defendant that its version of the events is the truth and that they were acting in self-defence during the time of the arrest.”

 

[73]        The last submission above might be true and correct. It stands beyond doubt that the knife was not entered into the SAP 22 but as exhibit in the SAP 13 on the 13^th of January 2018; confirmation of this is in the investigating diary of the docket. The knife was booked in as exhibit 09/2018 together with the torn shirt. The evidence could not be falsified because the docket was opened and the entry made at around 00h30.

 

[74]        The disorder in the evidence of the defendant is however the suspicious handling of the evidence and the items that Kanes had in his possession. Only the knife was booked in and not his keys (car and home), cigarettes, lighter and shoelaces. The keys remained in his possession until he handed it over to a colleague and his wife. He was released with the rest. This can prove that he did indeed just hand over the knife and it was used to falsify the information and cover for the clearly visible and serious injuries Kanes sustained.

 

[75]        I repeat; Constable Lerato Ramanamane was not called by either of the parties. This neglect as it stands is obstructive to a finding in favour of the Minister. Added to this, if his glasses were broken and he could not see the document wherewith Ramanamane was involved; she could have answered the issues in dispute. There was not any reason given as to why she did not testify.

 

[76]        Dr. Joubert confirmed being the author of the J88 Medical Report on the Police Case Docket and that he observed the injuries as contained therein on Kanes’ body. He was not cross-examined by Defendant’s Counsel. The injuries stand undisputed.

 

[77]        Matseko Lucy Khetsi has been in a relationship with Kanes for 3½ years, and they live together.  They also have a child together. She is friends with Motaung.

 

[78]        On 12 January 2018 she observed how Pokedi slapped Kanes at Motaung’s home and also observed Kanes and Motaung’s assault at the police station later that evening.  She did not see Kanes with a knife at the police station, despite being present when he was assaulted by Pokedi and Taaso.  This incident happened between 23h00 and 24h00 at the police station.

 

[79]        Khetsi herself was assaulted by members of the SAPS, but not arrested, despite having consumed alcohol that day.  It was put to Khetsi that she and all the others were highly inebriated, which she denied.

 

[80]        Khetsi confirmed the police members assaulted Motuang by hitting her and throwing her to the floor.  During that time Kanes entered the police station, at which time Pokedi and Taaso immediately proceeded to Kanes and started to assault him at the entrance of the police station.

 

[81]        Khetsi confirmed her statement on the Police Case Docket, but that it was not read back to her nor was she given the opportunity to read it before she was made to sign it.

             

[82]        Khetsi confirmed observing the police throwing her sister’s (Thakane) phone to the ground and breaking it because she was recording the incident.

 

[83]        Khetsi denied the version put to her that Motaung assaulted the police officers and that they were all highly aggressive towards the police officers.

 

[84]        Counsel for the plaintiff described her as a sincere and honest witness, whose testimony the Honourable Court can accept as truthful and creditworthy. It might be so but I caution myself that she is a friend of Motaung and the wife of Kanes. She might lean towards their case. The detail in her evidence and calmness with which she testified weighs in her favour. The part where the cell phone was destroyed is too detailed to be ignored. The defendant denies this and it raises questions as to their evidence as a whole. She was a better witness because she was not directly involved in the skirmishes and had better opportunity for observation.

 

[85]        Defendant again attacks her statement to the police. As ruled above; it is not of much value but I will echo the submission and sentiments of the defendant for what it is worth.

1.      In her statement to SAPS she states that she, together with the Plaintiff were inside Stella’s homestead when the Police arrived. Firstly: “They came into the house and demanded to search the place”, which is contrary to the evidence given by Stella and Kanes.  She also fails to give his testimony during her evidence.

2.      Likewise, no mention of the alleged slapping of Kanes is apparent from her statement. What is significant is that she testified that they were all angered by the visit of the Police and decided to go to the Police Station to report the incident.  This leans in favour of Defendant’s version that the Plaintiffs and their entourage were aggressive when they arrived at the station.

3.      Her version of the alleged assault upon Kanes and Stella differs from their account. In general, she could be expected to attempt to corroborate Stella and Kanes version.  The Court will view her evidence accordingly.

 

[86]        When evaluating evidence of a witness that was under stressful situations it is often more assuring if it is not an exact duplication of other witness’s evidence. It is a sure indication of truthfulness that does not indicate colluded evidence. I accept her testimony as valuable for the case of the plaintiffs and favoured by the probabilities.

 

[87]        At the conclusion of Khetsi’s testimony the Plaintiff’s cases were closed.

 

 

The case for the defendant

[88]        Sergeant Sefatsa has been a police officer for 14 years, of which 3 years was as a Sergeant.

 

[89]        He confirmed he was at Motaung’s home on or about 12 January 2018 and at the Clocolan Police Station shortly thereafter.

 

[90]        He confirmed that he informed Motuang that he suspected she had liquor in her house, which she denied.  She informed that it was her birthday and that she and her friends had their own liquor.  This is in line with Motaung’s testimony that she wanted the police to know that she was not involved in illicit liquor dealings.

 

[91]        He denied witnessing Kanes being assaulted or being called names at Motaung’s home.  He also conceded that he was not in Pokedi’s presence the whole time.

 

[92]        At the police station, Sefatsa did not see any attack by Kanes of Pokedi, he was only informed thereof at a later stage after he made enquiries. It only came out in the IPID inquiry of 15 June 2018 that he “noticed a white male who was in possession of a knife and Costable Taaso to disarm him.  While I was on my way to assist them from behind the counter, they then management to disarm him and the white male was charged in possession of dangerous weapon …”

 

[93]        Sefatsa realised the mutually destructive disparity and attempted to explain himself. He failed to do so.

 

[94]        It was later heard from Taaso that Safatsa was not in the charge office when Kanes allegedly tried to assault Pokedi with his knife, and that they met him only later in the corridor leading to the radio room.

 

[95]        Sefatsa’s evidence in regard to the items in Kanes’s possession is not to be trusted. Not only was it contradictory but not in line with the probabilities. He maintained that Kanes was searched after his arrest, which as per procedure includes taking a suspect’s belt, shoelaces, etc. for safety.  It was put to Sefatsa during cross-examination that Kanes was not searched and that he, at 06h00 on 13 January 2018, still had his keys, cigarettes, lighter and shoelaces with him.  Sefatsa persisted and confirmed that he saw Pokedi and the CSC Commander as well as an unknown warrant officer, search Kanes.  It was also put to Sefatsa during cross-examination that there was no inscription in the SAPS 22 of any items being confiscated from Kanes, which he could not explain.

 

[96]        He later informed the Court of an unknown employee of the municipality who arrived at the police station shortly after Kanes’ arrest, to collect the keys to the municipal vehicle driven by Kanes.  He could not confirm who called this unknown employee to the police station as he did not interact with the person, he only heard about him. 

 

[97]        Sefatsa testified that he saw Kanes after the arrest, but that he observed no injuries at all. This is impossible because the evidence shows that the injuries were severe and impossible to miss. On this point his evidence is glaringly deceitful.  Sefatsa is clearly an experienced police officer.  He on numerous occasions answered questions by referring to procedures and practice, rather than answer the questions directed at him. Compared to the evidence as a whole it seems that he wanted to prevent them from getting into trouble.  He was not truthful and his version should be regarded as implausible and not be preferred above Motaung’s, Kanes’ or Khetsi’s.

 

[98]        Constable Nthabeleng Thelma Lichakane was the arresting officer of Motaung. She arrested Motaung because she smelled of liquor and for drunkenness.  The arrest was in accordance with her training and she did not know the exact provision in the Liquor Act. 

 

[99]        She confirmed during cross-examination that Motaung did not assault or threaten anyone prior to her arrest and that such allegations were not the reason for her arrest.

 

[100]      The law as set out here is vital. It is clear that Motaung was not proven to be drunk to cause section 40 to be invoked. I refer to the finding of the Supreme Court of Appeals in Minister of Safety & Security v Tyulu [2009] JOL 23662 (SCA).

              “[21] It is correct, as the Full Bench found, that the appellant bore the onus of establishing the lawfulness of the respondent's arrest on a balance of probabilities (Minister of Law & Order & another v Dempsey 1988 (3) SA 19 (A) at 38B-C and Zealand v Minister of Justice & Constitutional Development [2008] ZACC 3; 2008 (2) SACR 1 (CC) [also reported at [2008] JOL 21448 (CC)-Ed] at paragraphs [24]-[25]). Therefore, the appellant had to prove that the respondent was drunk in public in the presence of Cordier and/or Dell. I agree with the Full Bench that the evidence tendered by the appellant falls far short of establishing that the respondent was drunk. Drunkenness was defined in Moses v Minister of Law & Order 1995 (2) SA 518 (C) at 522B-H, in a passage with which I agree. This passage reads:

 

"The word 'drunk' is not defined in the Act, and it is well established that drunkenness differs markedly from being under the influence of alcohol. A familiar definition, which appears in Landsdown's South African Liquor Law 5th ed at 476, is the following: 'A man is drunk who, by reason of the alcohol which he has consumed, has lost control of his mental or physical faculties, or both, to such an extent as to render him incapable of comporting himself, or of performing any act in which he is engaged, with safety to himself or with that regard to the rights of others which the law demands.'

 

Landsdown adds that the only absolutely infallible test of drunkenness is a positive reaction for alcohol in the cerebro-spinal fluid, a test which is of course wellnigh impossible to secure in practice. In the present case on appeal, no blood test of any kind was performed to determine the level of intoxication of appellant. The entry in the arresting officer's pocketbook to the effect that appellant was arrested for purposes of 'uitdroging' or 'drying out', and the absence of any entry in the crime register, make it plain that it was never intended to proceed with the charge against appellant, and for that reason there would, of course, have been no reason to test his blood. However, the absence of such a test removes one of the bases upon which the State might have established drunkenness on the part of the appellant.

 

This evidence falls far short of proof that appellant was not in control of his mental or physical faculties in the sense described in the definition referred to above. I am accordingly of the view that for this additional reason there was no lawful basis for an arrest under s 154(1)(c)(i) of the Liquor Act and it follows that appellant was entitled to resist both a search and an arrest in terms of that section."

 

[101]      According to Lichakane, at the time when she arrested and detained Motaung, Kanes was already in custody in another room.  This is in line with the testimony of Motaung and Kanes.

 

[102]      During cross-examination she conceded that she understood why Motaung acted distressed as she was falsely accused by the police of illicit alcohol dealings and the assault of one of her guests as her home; all this on her birthday. 

 

[103]      Constable Samson Pokedi was the arresting officer of Kanes. According to Kanes, it was Pokedi that assaulted him at Motaung’s home and at the Clocolan Police Station. He also called him “poor white dog”.  In reaction hereto Pokedi denied assaulting Kanes and averred that Kanes attacked him with a knife and that he utilised minimum force to subdue and arrest Kanes.

 

[104]      Pokedi testified that Kanes called him a “kaffir” and that he wanted to be assisted by a white person. It was put to Pokedi during cross-examination that he played the race card incorrectly, as he was not aware that Kanes was in a relationship with a black woman and most certainly not a racist.  This is supported by the evidence of Khetsi who told the Court she would not have accepted such behaviour from Kanes, which she would have observed as she was present at Motaung’s home and at the police station when Kanes entered the station.

 

[105]      Pokedi confirmed that Taaso assisted him to subdue Kanes at the police station.

 

[106]      He denied observing any injuries to Kanes after his arrest, although when confronted with the J88 Medical Report, he did not deny those injuries contained therein.  Pokedi could not explain how Kanes could have suffered any injuries during his arrest as per his version.  Pokedi referred only to a pot over which Kanes fell, nothing else. The photos of Kanes’ injuries make testimony that it was not noticed blatantly deceitful.

 

[107]      Pokedi testified he searched Kanes after his arrest but averred that nothing was found on his person.  It was put to Pokedi that Kanes had his knife, cigarettes, lighter, keys and shoestrings with him in the holding cell, as he was never searched as alleged.  The keys were collected from Kanes at 06h00 on 13 January 2018 when Khetsi requested it.  In reaction hereto Pokedi averred that an unknown person claiming to be Kanes’ colleague arrived to collect vehicle keys.  The keys were not handed over, nor was it recorded in a SAPS 22.

 

[108]      When confronted why he did not confiscate and record Kanes’ shoelaces. Pokedi averred he had no shoelaces as he was wearing rubber boots. This contradicts Kane’s testimony that these shoelaces were not removed as he was not searched.  This confirms the contradiction in the evidence of the witnesses for the defendant and their own records.

 

[109]      It was asked of Pokedi what his uniform was at the time when Kanes allegedly attacked him.  He confirmed he carried a weapon (9mm pistol), uniform and bullet proof vest.  It was submitted a frail figure like Kanes would not in any likelihood enter a police station and attack fully armed police officer with a small pocketknife, without any planning whatsoever.

 

[110]      Pokedi’s evidence must be rejected as without veracity and the plaintiffs’ case to be preferred.

 

[111]      Constable Simon Taaso was present at Motaung’s home on 12 January 2018 and thereafter at the Clocolan Police Station. Taaso was involved in the arrest of Kanes after he and Pokedi subdued Kanes. Taaso also wore a bulletproof vest and was fully armed at the time when Kanes allegedly attacked Pokedi. He confirmed Sefatsa was not present during the arrest of Kanes.  Pokedi only afterwards explained to Sefatsa what happened.

 

[112]      Vital, again, is his testimony that he did not see any injuries to Kanes after his arrest, although he did not deny the injuries as contained in the J88 Medical Report.  He could not explain how Kanes could have suffered the injuries in relation to how they subdued Kanes.

 

[113]      Taaso confirmed that he did not search Kanes. I inquired as presiding officer in relation to this if the female police officer that could shed light on the many issues weighing the case down is available. Constable Taaso confirmed she was Constable Lerato Ramanamane and she is available. She was still working at the Clocolan Police Station.

 

IV CONCLUSION

[114]    The mosaic of evidence weighs in favour of the plaintiffs and the balance of probabilities shows that the arrests and detentions were not legal and that the plaintiffs were assaulted. The delictual claims as per their pleadings dated 22 May 2018 must be granted and the resultant injuries found to be as result thereof.

 

[115]    It has been contended on the plaintiffs' behalf that costs of trial should be granted at a punitive scale because the witnesses for the defendant were deceitful. I am not convinced that such an order will be just. Apart from defending their case they did not delay or obstruct the finalisation of the matter. Costs must, of course, follow the outcome.

 

V ORDER

1.            The main claims of both plaintiffs on the merits for unlawful arrest, detention and assault as per summons succeed.

2.           The defendant to pay the costs.

M. OPPERMAN, J

 

 

 

Appearances

For plaintiffs:              ADV C ZIETSMAN

                                    High Court Chambers, Pretoria

                                    c/o Loubser van der Walt Inc.

                                    Pretoria

                                    c/o LOUBSER VAN DER WALT INC.

            Pretoria

            REF: RP VAN WYK/W2198

                                    c/o JACOBS FOURIE INC.

                                    Bloemfontein

                                    REF: HERMAN FOURIE LOU7/0005

 

For defendant:            ADV A WILLIAMS

                                    Chambers, Bloemfontein

                                    c/o BM MARANYANE

                                    Bloemfontein

                                    REF: 66/201800558/P13S

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