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CASE NO: 1394/2004

IN THE HIGH COURT OF SOUTH AFRICA

(BOPHUTHATSWANA PROVINCIAL DIVISION)

In the matter between:

J BOSSERT APPLICANT

and

THE MINISTER OF SAFETY AND SECURITY 1^ST DEFENDANT

INSPECTOR W MAKHUTLE 2^ND DEFENDANT

FOR THE APPLICANT : ADV PISTOR

FOR THE RESPONDENTS : ADV TSHIDZUMBA

DATE OF HEARING : 03 NOVEMBER 2008

DATE OF JUDGEMENT : 12 DECEMBER 2008

J U D G E M E N T

LEEUW J:

INTRODUCTION:

[1] The plaintiff instituted action against the defendant for damages in respect of the following claims:

1. unlawful arrest and detention;

2. assault and

3. non-compliance with legal duty by virtue of the provisions of section 35 (2) (b) of the Constitution of South Africa Act No 108 of 1996 (the Constitution) and section 73 (1) of the Criminal Procedure Act No 51 of 1977 (the Criminal Procedure Act).>

[2] The basis of the plaintiff’s claim emanates from the arrest without a warrant and detention of the plaintiff at the Mafikeng Police Station overnight as well as an assault on him allegedly at the police station during his arrest. The defendant denied liability but at the hearing of this matter, I was informed that the defendant admitted that the arrest and detention was unlawful, but denied the assault. In view of the aforesaid admission, the applicant withdrew the third claim.

[3] It was also placed on record that the parties agreed that the question on the merits and the quantum will be proceeded with and not separated in terms of Rule 33 (4) as was agreed at the pre-trial conference. The evidence therefore related to both the merits and quantum in respect of the claim based on the unlawful arrest and detention as well as the assault respectively.

The Facts

[4] Plaintiff, who is 34 years old, testified that on the 9^th January 2003, he was at his present place of business at the Caltex garage in Mafikeng when his wife was involved in an accident with a driver of another vehicle. This driver proceeded to the police station and he and his wife and a certain Shaun Grobble followed in their vehicle.

[5] At the police station, he and his wife were sitting on a bench in the public area of the charge office whilst the other driver related the facts to the police about what happened at the Caltex garage. Whilst sitting there, with his legs crossed, the police reprimanded him for sitting in that position because theirs was not a “pre-1994” police station.

[6] He was then summoned by the police to enter the private side of the police station, at the back of the counter. They chased away Shawn Grobble and his wife remained seated on the bench. When he enquired from them as to where they were taking him to, he was told that he did not have to know; he asked for permission to phone his lawyer, and when he took out his cellphone for that purpose, three (3) to four (4) police officers held his hand and threw away the cellphone. He was put on a small table whilst one of the policemen searched his pockets and removed his waist belt. He was asked whether he had any object in his possession which could cause him harm. They gave the belt to his wife. The wife told him that she picked up his cellphone on the floor.

[7] According to the plaintiff, during the struggle, he felt pain on the right side of his back above the waist. He cannot say what caused the pain. He was then locked up in a holding cell for about an hour. He was thereafter taken to an awaiting trial prisoners’ cell.

[8] It was at night when he was locked up in that cell which was about seven (7) square metres in size, with about seventeen (17) other male persons crammed inside. The lights were switched off from outside and were again put on at the request of one of the inmates. There was an inmate who appeared to be playing a leading role in the cell.

[9] This person (the leader) took off his shoes and thereafter gave them back to him because he did not like them. He searched his pockets and asked him whether he wanted a “skooter drive”. It was explained to him that a “skooter drive” meant that every newcomer in the cell was to be undressed and whilst naked, would be assaulted with wet shoes and thereafter sexually assaulted by all inmates. He was shown an inmate in the cell who had also undergone the same ritual and was lying still on the floor and could not even talk.

[10] He struck a deal with the leader who had demanded an amount of R50-00, Boxer tobacco, a packet of cigarettes and a PM9 radio battery. He was then ordered to dance before the lights were switched off, which he did.

[11] When the lights went off, they all slept on mattresses in the overcrowded cell and they were sharing blankets. During the night, the inmates started talking about having a “skooter drive” with him and he pleaded with the leader who increased the money he had promised to pay to R100-00.

[12] He could not fall asleep for the whole night. In the morning at 6h00, he was given coffee and bread smeared with peanut butter. But before they could eat, they were forced to take a shower with no privacy. He was also forced to brush his teeth with a toothbrush and toothpaste used by all the inmates. He did not eat because he had lost appetite.

[13] Later that morning, Sebastian Moses, who is a candidate attorney, came to see him. He then requested him to bring the items for the leader of the cell. The items were brought by Sebastian Moses and his wife after about an hour or two. He, the plaintiff, took the items and gave them to the leader.

[14] He was later released from the cell at 11h59 and was given a written warning by the police to appear in Court on the 16^th January 2003 on a charge of assault. He attended Court on that date and the matter was postponed several times. He was never furnished with a copy of the charge sheet and the complainant in the matter never attended Court. The charge was eventually withdrawn by the public prosecutor on the 14^th March 2003.

[15] On the morning of his release from the cells on the 10^th January 2003, he had a consultation with his attorney Dr Almay Stanton. According to plaintiff, he was embarrassed and when he arrived at home, his wife took a photo of the reddish mark on his body. The photographs were handed in as Exhibit B. He consulted Dr Kruger, a medical doctor, on the same day and according to the doctor’s findings as reflected on the medical report (J88 form), the injury, a bruise, was consistent with a finger impression which was inflicted with some measure of force. He also added, when he testified, that the bruise was consistent with a fist or a slap or even forceful grip to the body. That the effect of the injury could have been reduced by the fact that the plaintiff had his clothes on. He reiterated the fact that the injury was consistent with pushing and dragging of the plaintiff.

[16] With regard to the effect of the incarceration as well as the assault on his emotional state and self-esteem, the plaintiff stated that he is a well known resident of Mafikeng, conducting a business and is now perceived as a jailbird; that this causes him to be shameful in the eyes of the community and his family.

[17] Emotionally, he was traumatized by the ordeal in the cells, especially the fact that he was threatened with sexual assault. He consulted a psychologist once in that regard and medication was prescribed for him which reduced his nervousness and anxiety. He sees himself as a failure in the eyes of his family and friends because as a head of the family, it is expected of him to be strong and yet he has been reduced to a weakling as a result of his experience.

[18] His wife testified that she has been married to the plaintiff for seven (7) years now and that when this incident happened, they were married for two (2) years. According to her, prior to his arrest, the plaintiff was an outgoing and friendly person but that after this incident, he has become withdrawn and is aggressive towards people and their pets at home. Even after testifying here in Court about this incident, he became more withdrawn and did not want to talk about his experience. The plaintiff told the Court that ever since this experience, his attitude towards the police changed to the negative.

[19] The Applicant’s counsel, Mr Pistor, presented the evidence of Dr Roenel Stanton, which evidence has a bearing on the third claim. The Defendant’s counsel objected to this evidence been admitted for the reason that the claim was withdrawn. It was explained to the Court that Dr Roenel Stanton’s evidence was relevant for the purpose of determining quantum in respect of the two other claims. I provisionally allowed this evidence subject to its relevance in that regard.

[20] Dr Stanton’s evidence was to the effect that she was present at the time when the plaintiff was allegedly manhandled by the police. She was about four (4) metres from the plaintiff when she saw him through a cubicle. She enquired from the police at the charge office about the nature of the charge against the plaintiff, but was not given an answer. She enquired as to who the investigating officer was and was not given a satisfactory answer. Up to about 19h00, when the plaintiff was taken to the cells, she was denied permission to talk to the plaintiff as her attorney. She was given a telephone number at 20h00. She tried the number several times but could not get through. She waited at the police station until 24h00. She went to the plaintiff’s house to collect a jersey for him and on the following day, that is when he was released from the cells, she advised him to see a doctor and a psychologist because she realized that he was in a state of shock.

[21] That completed the evidence of the plaintiff. An application for absolution from the instance was refused. The defendant called a police officer Eric Letlhogile who is a police reservist. He testified that he was on duty with other police officers when the plaintiff came to the charge office on the 9^th January 2003.

[22] On the plaintiff’s arrival, he found the driver of the other vehicle which had collided with his, the plaintiff’s wife’s car. That driver was injured and he pointed out the plaintiff as the person who assaulted him at the garage. A case of assault was opened against the plaintiff and the police explained to him that he was under arrest. The plaintiff offered resistance and was violent and the other police officers manhandled him in order to over power him. He relented and was taken to the cells.

[23] A body search was done and his rights in terms of section 35 of the Constitution were read to him and thereafter he signed the “Notice of Rights in terms of the Constitution” at 19h10. He did not notice any injuries on the plaintiff and further stated that the plaintiff was not assaulted in anyway on that date.

[24] Mr Pistor cross-examined this witness extensively on the issue on whether or not the rights of the plaintiff were read to him, and in particular whether he was given an opportunity to talk to his attorney who was present at the police station. Eric Letlhogile reiterated the fact that the plaintiff never made a request to see an attorney or his family. He further stated that the complainant (the other driver) was bleeding and his shirt buttons were torn off when he pointed out the plaintiff as the person who assaulted him.

The Law

[25] The main question to be decided on the merits is whether the plaintiff was assaulted by the police officers at the time of his arrest and incarceration.

[26] In the particulars of claim, plaintiff alleges that he was unlawfully assaulted by the police by “forcefully pushing and pulling him around and by hitting him on his hand with which the plaintiff was holding his cellphone and further that he sustained bruises, experienced pain and inconvenience.” In his response to a request for further particular with regard to the nature of injuries sustained, it was stated that the plaintiff sustained bruises on his back and on his hand.

[27] By alleging that the police assaulted him as described in the particulars of claim and in his evidence, the plaintiff implies that the police did so intentionally. See Groenewald v Groenewald 1998 (2) SA 1106 (SCA) at 1112 C – F and the following case referred to Mabaso and Others v Minister of Police and Another 1980 (4) SA 319 (W). The assault is denied by the defendant and it is also not the defendant’s case that the plaintiff sustained the injuries at the time when plaintiff was manhandled during the arrest and detention.

[28] The onus of proving on the balance of probabilities wrongful and intentional assault lies on the plaintiff on the factual as well as legal issues because the defendant denies the assault and joined issue with plaintiff on those issues. Compare Mabaso v Felix 1981 (3) SA 865 (AD) at 873 G – H and 874 and the cases therein cited, where the defendants had pleaded justification for an act which would otherwise be wrongful, in which case the defendant would bear the onus of proving excuse or justification on legal issues.

[29] In Groenewald v Groenewald supra, Streicher JA stated the following at 1112 D – E.

“I agree that the allegation in the plaintiff’s particulars of claim that the defendant ‘assaulted’ the plaintiff by threatening her with a knife, dragging her by the hair and throwing her against a table carries with it an implicit allegation that the defendant did so intentionally. It does, however, not follow that it also carried the implicit allegation that the defendant intended the alleged result.

The defendant would only have been delictually liable to the plaintiff if the wrongful acts were committed intentionally or negligently.”

[30] The Court went further to state at 1112 G – 1113 A – B, that:

“In delictual claims of the nature involved in the present case two separate questions arise:

1. Was the defendant at fault?

2. For what consequences caused to the plaintiff in consequence of the defendant’s conduct is the defendant liable in damages to the plaintiff?

For the purposes of answering the first question the defendant would be held to be at fault as long as he intended to cause harm to the plaintiff, even if he did not intend that the consequences of such conduct would be to cause the kind of harm actually suffered by the plaintiff or harm of that general nature. He would also be held to be at fault if a reasonable person in the position of the defendant would have realised that harm to the plaintiff might be caused by such conduct, even if he would not have realised that the consequences of that conduct would be to cause the plaintiff the very harm she actually suffered or harm of that general nature.

Once fault in this way is attributed to the defendant, the second question is determined by asking whether the damages actually suffered by the plaintiff are damages which the defendant can be compelled to compensate the plaintiff for. In respect of this second enquiry reasonable foreseeability might in some case be an irrelevant criterion, and in some cases might even operate as a decisive criterion; but it is one of many criteria which might flexibly be applied as a matter of policy to determine whether or not the damages actually suffered by the plaintiff are or are not too remote to hold the defendant liable.”

[31] In applying the above principles to the present case, the question is whether the plaintiff has succeeded to prove, on a balance of probabilities, that the wrongful acts committed by the defendant were committed intentionally or negligently.

[32] The plaintiff’s evidence in Court, which is denied by the defendant, is that he was manhandled by 4 to 5 police officers; in the process, he took out a cellphone and the police grabbed it from his hand; they conducted a body search. He cannot say what the police did but he sustained an injury and pain on his back. This version is in line with the evidence of Eric Letlhogile who testified that the plaintiff was manhandled because he was refusing to submit to the arrest, albeit the arrest and detention was unlawful.

[33] The version of the plaintiff as it appears from the particulars of claim is that the second defendant and/or other policemen unknown to the plaintiff, hit him on his hand with which he was holding his cellphone and that he sustained bruises as a result. In his further particulars to the defendants’ request, he states that he sustained bruises on his back and arm. This is contradictory to his evidence in that he did not mention the fact that he sustained a bruise to his hand, and neither did he mention that he was hit at the back of his body.

[34] In view of the contradictions in the evidence of the plaintiff, which are material, the probabilities are that he was manhandled as admitted by Eric Letlhogile but that the plaintiff failed to prove on a balance of probabilities that the assault or the wrongful act was committed intentionally or negligently.

[35] I am not satisfied that the plaintiff has succeeded to prove the claim of assault in that regard.

On quantum

[36] The damages in this instance will only relate to the claim on unlawful arrest and detention. It was submitted on behalf of plaintiff that the damages claimed, R50 000-00 in respect of the unlawful arrest and R100 000-00 for the unlawful detention are reasonable taking into account the emotional trauma experienced by the plaintiff in the cells.

[37] On the merits of this case, there is no doubt that the plaintiff’s experience in the cell was traumatic. Plaintiff was detained for a period of seventeen (17) hours and fourteen (14) minutes which is less than a day. The evidence of Dr Stanton, which was meant to prove that the plaintiff was not afforded an opportunity to consult his attorney and according to Mr Pistor, would justify a substantial award of damages, related to the claim that was withdrawn by the plaintiff. Mr Pistor referred me to Fose v Minister of Safety and Security [1997] ZACC 6; 1997 (3) SA 786 (CC). In this case the Court dealt with the issue of appropriate relief where fundamental rights in terms of the Constitution have been infringed.

[38] I do not wish to deal with the issues raised in that regard save to state that the plaintiff is not seeking any relief for infringement of fundamental rights, as a separate claim. Besides, the fact that the plaintiff was unlawfully arrested and detained on its own is a violation or infringement of his fundamental rights as prescribed by the Constitution. However I will consider the fact that the plaintiff, had he been allowed to contact his attorney, who was present at the police station, and had his attorney been given the particulars of the investigating officer on the day of his arrest, he would most likely have been released much earlier.

[39] Several factors which are trite pertaining to quantum were referred to in Minister of Safety and Security v Seymour 2006 (6) SA 320 (SCA). These factors were used as guiding lines by the Court in determining the appropriate quantum. I share the view held by Nugent JA that “the assessment of awards of general damages with reference to awards made in previous cases is fraught with difficulty”. See p 326 par [17] I will also use the cases referred to in that judgment as a guide, and individualize the plaintiff’s circumstances in that regard.

[40] When this incident happened, the plaintiff was 34 years old. He was not employed at the time but was assisting on a part-time basis at the Molopo Take Aways, which is a café. He was married for almost two (2) years with his present wife. He stated that he underwent psychological counselling but only once after his release. Except for the anxiety and nervousness, he explained that he believes that the community, his friends and relatives perceive him in a different light ever since his arrest and incarceration; he has become withdrawn as a result of the experience.

[41] The fact that the plaintiff is not undergoing any therapy to correct his condition, is indicative of the fact that the condition is not that serious that it would result in a life-long psychological effect on him. Besides, plaintiff did not call the psychologist on this issue. This does not however, mean that the Court should undermine the trauma experience by him whilst incarcerated in the cells.

[42] Counsel for the defendant Mr Sidzumo has argued that an amount of R10 000-00 would be sufficient for the unlawful arrest and that for the unlawful detention R20 000-00 would be appropriate. Having regard to the cases referred to in the Minister of Safety and Security v Seymour supra, I am of the view that the amounts claimed by the plaintiff are excessive in the circumstances of this case, but similarly that the amount of damages suggested by Mr Sidzumo is reasonable.

[43] I find that the first defendant, nominally representing the police, and the second defendant are liable for damages for the unlawful arrest and detention of the plaintiff. It was admitted in the pleadings that the second defendant was the officer who arrested the plaintiff.

[44] I am of the view that even though the plaintiff has not succeeded in all the claims against the first defendant, that the defendant should be liable to pay costs taking into account the fact that the plaintiff’s fundamental rights were violated which infringement should be viewed in a serious light.

[45] I accordingly make the following order:

1. The defendants are jointly and severally, the one paying the other to be absolved, ordered to pay:

Claim 1:

(a) R10 000-00 Ten Thousand Rand to the plaintiff in respect of unlawful arrest;

(b) R25 000-00 Twenty Five Thousand Rand to the plaintiff for unlawful detention;

2. Interest on the said amounts at a rate of 15.5% per annum a temporae morae to the date of payment.

3. Costs of suit.

Claim 2: (Assault)

4. This claim is dismissed.

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M M LEEUW

JUDGE OF THE HIGH COURT

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