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IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION, GRAHAMSTOWN)

CASE NO.: CA 125/2011

DATE HEARD: 24/8/12

DATE DELIVERED: 12/10/12

NOT REPORTABLE

In the matter between:-

MINISTER OF SAFETY AND SECURITY .......................................................APPELLANT

and

ANDREW SELWYN SCHEEPERS .................................................................RESPONDENT

JUDGMENT

PLASKET, J and COSSIE, AJ.

[1] This is an appeal against a judgment of the magistrate’s court, Uitenhage. It is before us with the leave of that court. The central issue on appeal is the correctness of the finding of the trial magistrate that the plaintiff (whom we shall refer to as Scheepers) was unlawfully detained at the instance of Constable Michael Ndwayana, acting within the course and scope of his duties as an employee of defendant, in the cell block area of the Uitenhage Police Station for a period of approximately 30 minutes.

[2] Scheepers was awarded damages of R5 000-00 by the trial court being a globular amount for detention, contumelia and impairment of dignity.

[3] In his particulars of claim, Scheepers alleged that, on 30 November 2005, he was unlawfully and intentionally detained in a cell at the Uitenhage Police Station by Ndwayana, notwithstanding the fact that the plaintiff had requested Ndwayana ‘on numerous occasions to open the gate for him’. He alleged that Ndwayana had, accordingly, acted maliciously and as a result, Scheepers was deprived of his right of freedom and movement. Scheepers claimed damages for malicious and unlawful arrest and detention. His claim was thus based on the actio injuriarum.

[4] In the normal course of events, a plaintiff seeking damages based on the actio injuriarum is required to allege and prove the intention to injure – animus injuriandi.. In Moaki v Reckitt & Colman (Africa) Ltd & another 1968 (3) SA 98 (A) at 104B-C, Wessels JA confirmed that in actions of this type our law has always required a plaintiff to prove the requisite legal intention to injure in the form of dolus directus or dolus indirectus. The allegation that Ndwayana acted maliciously takes the matter no further. See Moaki’s case at 103G-104B.

[5] The facts that follow are either common cause or are not in dispute. Scheepers was employed by the South African Police Service as a police reservist, with the rank of reserve inspector, and was on duty on 30 November 2005 at the Community Service Centre of the Uitenhage Police Station (the CSC).

[6] On the same day Ndwayana was on duty as the commander of the cell block at the Uitenhage Police Station and, as such, was the police official in charge of the cell block.

[7] The CSC was very busy on that day. As a result, Scheepers did not take the normal tea break. When the opportunity presented itself later, however, he went to the kitchen to take a tea break. He found the kitchen door locked. He then went to the kitchen situated in the cell block. He knocked and Ndwayana opened the door for him. Scheepers asked Ndwayana to let him in so that he could make coffee. Ndwayana let him in, locking the cell block gate behind him, as he was required to do. Scheepers went to the kitchen. He made coffee while chatting to the women working in the kitchen.

[8] While Scheepers was busy in the kitchen, Ndwayana was called by his superior, Captain Schoeman, for an interview with him in the CSC relating to Ndwayana’s performance appraisal. Ndwayana advised Scheepers that he was going to the CSC and thereupon left the cell block, having locked the gate and the door behind him (once again as he was required to do) with Scheepers still inside the cell block.

[9] While busy conducting the interview with Ndwayana, Schoeman received a telephone call from Scheepers who told him that he was locked in the cell block. Schoeman confirmed that Ndwayana was with him and that Scheepers should wait.

[10] Subsequent to the telephone call, Ndwayana went back to the cell block where he found Scheepers waiting. He opened the gate and the door. Scheepers left the cell block.

[11] These facts are largely consistent with the versions of Ndwayana and Schoeman. The version given by Scheepers, while based broadly on these facts, contains additional features that, if accepted, would tend to establish that Ndwayana acted with animus injuriandi in locking Scheepers in the cell block.

[12] Scheepers testified that when Ndwayana left, locking the gate behind him, he (Scheepers) had asked Ndwayana to open the gate for him, but Ndwayana waved at him and said ‘fok jou’ before leaving the cell block.

[13] He then stated that he thought Ndwayana would return quickly, but after 15 minutes had passed he used his cell phone to call Schoeman. He told Schoeman that he was locked in the cells. Schoeman confirmed that Ndwayana was with him and that he should wait. After a further 15 minutes Scheepers telephoned Schoeman again and was told by Schoeman that Ndwayana said he must wait. Scheepers, after waiting for a further period, then telephoned Inspector Scharnick at the CSC, who said that Ndwayana was on his way. After a while Ndwayana arrived and opened the gate for him. Scheepers reported the matter to Superintendent du Pisanie who said he was not taking sides but advised Scheepers that he could either complain internally or institute civil proceedings.

[14] Under cross examination he stated that at first he had thought that Ndwayana was playing a prank. He drank his coffee and then after 15 minutes he telephoned Schoeman. He had not spoken to Ndwayana after Ndwayana had opened the door and the gate for him. He confirmed that no prisoners were in the courtyard and there was no immediate threat to him.

[15] Ndwayana testified that after he had been summoned to Schoeman’s office, he informed Scheepers of this and said that he would be returning. He locked the gate behind him when he left the cell block and went to the CSC which was about 20 metres away. When he left the cell block, Scheepers was still drinking his coffee. He was also chatting to someone in the kitchen. Ndwayana spent about 15 minutes with Schoeman completing performance appraisal forms. He then went back to the cell block and opened the door for Scheepers, who did not appear to be upset or angry. Ndwayana stated that if, when he left the cell block, Scheepers had asked to be allowed out he would certainly have complied with this request. He denied having sworn at Scheepers as alleged.

[16] Under cross examination, he could not recall if Schoeman had received a telephone call from Scheepers. In reply to questions by the court, he stated that he had not recorded the time he left the cell block in the Occurrence Register nor the time of his return to the cells.

[17] Schoeman stated that on the day in question he had been busy with staff evaluations for pay progression. He had telephoned and asked Ndwayana to come to his office for this purpose. While busy with Ndwayana, he received a telephone call from Scheepers who told him that he was locked in the cell block and that Ndwayana should let him out. He told Scheepers to wait. The performance appraisal took about 15 minutes. He and Ndwayana left his office together and Ndwayana walked in the direction of the cell block.

[18] The difference between the version of Scheepers, on the one hand, and Ndwayana and Schoeman, on the other, lies in the following disputed facts, namely:

• Ndwayana’s conduct and the utterances he allegedly made to Scheepers when he left the cell block in response to Schoeman’s call, in particular the allegation by Scheepers that Ndwayana had sworn at him and had refused to let him out of the cell block;

• the number of telephone calls made by Scheepers to Schoeman while he was locked in the cell block; and

• the length of the period of plaintiff’s confinement in the cell block.

[19] The court a quo decided the matter on the Scheepers’ version. The magistrate gave no reasons why he preferred this version. He had no regard to the probabilities or the credibility of the various witnesses. The way that he should have approached his decision was set out as follows by Eksteen AJP in National Employers’ General Insurance v Jagers 1984 (4) 437 (E) at 440D- G:

‘It seems to me, with respect, that 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. In a civil case the onus is obviously not as heavy as it is in a criminal case, but nevertheless where the onus rests on the plaintiff as in the present case, and where there are two mutually destructive stories, he can only succeed if he satisfies the Court on a preponderance of probabilities that his version is true and accurate and therefore acceptable, and that the other version advanced by the defendant is therefore false or mistaken and falls to be rejected. In deciding whether that evidence is true or not the Court will weigh up and test the plaintiff’s allegations against the general probabilities. The estimate of the credibility of a witness will therefore be inextricably bound up with a consideration of the probabilities of the case and, if the balance of probabilities favours the plaintiff, then the Court will accept his version as being probably true. 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.’

[20] As a general rule, courts of appeal are reluctant to interfere with factual findings made by trial courts unless they are convinced that those findings were clearly wrong. See in this respect, the well-known case of R v Dlumayo & another 1948 (2) SA 677 (A) at 706. In Santam Bpk v Biddulph 2004 (5) SA 586 (SCA) at para 5 Zulman JA expressed the principle and its limits when he stated:

‘Whilst a Court of appeal is generally reluctant to disturb findings which depended on credibility it is trite that it will do so where such findings were plainly wrong . . . This is especially so where the reasons given for the finding are seriously flawed. Overemphasis of the advantages which a trial Court enjoys is to be avoided, lest an appellant’s right of appeal “becomes illusory”. . . It is equally true that findings of credibility cannot be judged in isolation, but require to be considered in the light of proven facts and the probabilities of the matter under consideration.’

In this matter, the magistrate’s reasons for preferring Scheepers’ version are entirely absent. His failure to make proper factual findings in the manner set out by Eksteen AJP in Jagers (cited above) is a misdirection, warranting a reassessment of the evidence. In addition, his failure to have regard to the wider probabilities is also, on its own, a misdirection entitling this court to reassess the evidence. See Body Corporate of Dumbarton Oaks v Faiga [1998] ZASCA 101; 1999 (1) SA 975 (SCA) at 979I-J.

[21] In circumstances such as this, where an appeal court does not have the benefit of the views of the presiding officer who saw and heard the witnesses in the witness box, it has to do the best it can in assessing the evidence and determining the probabilities. In S v Frazenburg & others 2004 (1) SACR 182 (E) at 188b-c Leach J set out the approach to be adopted as follows:

‘To summarise, as the trial Court made no findings as to the credibility of the witnesses who testified, this Court, on appeal, (a) has to do its best on the material on record; (b) cannot proceed on the assumption that there was no misdirection or irregularity in the process of reaching the decision that was reached by the Court a quo; (c) cannot assume that the Court a quo had cogent reasons for seemingly accepting the witnesses who implicated the appellants; and (d) should have regard only to the question of the onus of proof once all the relevant evidence has been examined to see whether there is any doubt as to which version is acceptable.’

[22] The central issue that had to be decided by the court a quo was whether Scheepers was detained in the circumstances as pleaded and testified to by him, or whether the evidence of Ndwayana and Schoeman concerning the circumstances and duration of Scheepers’ stay in the cell block should have been preferred. Once the factual dispute is determined, the final issue to be decided is whether the conduct of Ndwayana was wrongful.

[23] Based on the legal principles set out above, it is now incumbent on this court to do the best that it can in reassessing the evidence, against the backdrop of the general probabilities. It is central to Scheepers’ case that he was detained for a period that, on his own version, ranges from approximately 35 minutes to an hour and that he knew this because he made three telephone calls, more or less 15 minutes apart, to Schoeman on two occasions and to inspector Scharnick. His evidence in this regard leaves a lot to be desired.

[24] In his evidence in chief, Scheepers said that he had telephoned Schoeman for the first time after about 15 minutes and, after Schoeman had spoken to Ndwayana, he was told by Schoeman that he must wait. After a further 15 to 20 minutes, he telephoned Schoeman again. This time he was told that Ndwayana had said that he was busy and that Scheepers must wait. Then, after a further 10 minutes, he telephoned inspector Scharnick who told him that Ndwayana was on his way to the cell block.

[25] In cross-examination, however, this version changed significantly. First, he said that when he telephoned Schoeman the first time, it was clear to him that Ndwayana was not in Schoeman’s immediate vicinity because he heard Schoeman shouting to Ndwayana. Secondly, when he called Schoeman the second time, he said that he told Schoeman that he had now finished with what he had been doing in the cell block and wanted to leave, whereupon he was told that Ndwayana said that he must wait, that he (Ndwayana) was busy but that he would return to the cell block soon. Thirdly, when he spoke to Scharnick, he said that he could hear Scharnick speak to Ndwayana, saying that Scheepers was waiting for him, before being told by Scharnick that ‘Mike said jy moet wag want hy is besig’. Scheepers then asked Scharnick what Ndwayana was doing and Scharnick told him that ‘the man says he is busy, you must wait’.

[26] What is significant in the differing versions is that in cross-examination, Scheepers mentioned for the first time that Schoeman and Ndwayana were not in close proximity of each other; that it was only after about half an hour, when he called Schoeman the second time, that he said that he had finished his business in the cell block; that on this occasion, Ndwayana had indicated through Schoeman that he would return soon to the cell block; and that his accounts of what was said to and by Scharnick varied from being told that Ndwayana was on his way to being told that Ndwayana said that he was busy and that Scheepers must wait.

[27] These inconsistencies raise serious questions about the credibility of Scheepers. They are inconsistencies that go to the very heart of his version. That is compounded by the fact that it was never pertinently put to Ndwayana that he was ever in Scharnick’s company or that it had been necessary for Schoeman to shout at him because he obviously was not in Schoeman’s office. It was also not properly disputed that he was in Schoeman’s company for at least 30 minutes. When Schoeman testified, he was adamant that Ndwayana’s performance appraisal took him 14 or 15 minutes to complete, and no longer. This was not disputed. His evidence that he only received one telephone call from Scheepers was also not disputed. It was suggested in cross-examination, however, that Ndwayana may not have gone directly to the cell block when he left Schoeman’s office. This was not put to Ndwayana.

[28] Scheepers’ evidence is based on a number of improbabilities. First, he testified that when Ndwayana left the cell block, he had asked Ndwayana to let him out but Ndwayana had sworn at him and locked him in. It is improbable that he had asked Ndwayana to let him out because he had just arrived to make and drink a cup of coffee and he had not done so yet. It is also improbable that Ndwayana would have sworn at him as he said: there is simply no possible reason for Ndwayana to have behaved in this bizarre way. Secondly, given the fact that Schoeman was an officer and Ndwayana was not, and that Schoeman had summoned Ndwayana to his office to complete a performance appraisal, it is improbable that Schoeman, when Scheepers telephoned him on the first occasion, would have consulted with Ndwayana before telling Scheepers to wait, and it is even more improbable that, on the second occasion, Schoeman would have said that Ndwayana said that he was busy and that Scheepers must wait. Thirdly, it makes no sense that Scheepers, when he telephoned Schoeman the second time would have told him that he was now finished with his business in the cell block and that he wanted to leave. This evidence renders the first telephone call meaningless.

[29] We have considered the way in which Ndwayana and Schoeman gave their evidence and dealt with cross-examination. While we obviously did not have the benefit of seeing and hearing them in the witness box, it appears to us from the record that their evidence was of good quality. Both gave evidence that was consistent and logical, they were not troubled in cross-examination and their accounts of events are in line with the probabilities. Their evidence was mutually corroborative. As a result, we are of the view that the magistrate, had he approached the task of determining the factual disputes properly, should have found that the version of Ndwayana and Schoeman was probably true and the version of Ndwayana was probably false.

[30] Once it is accepted that Ndwayana only spent 15 minutes with Schoeman, then Scheepers’ evidence of the three telephone calls must be untrue. That means that it must be accepted that, when Ndwayana left the cell block, he told Scheepers that he was leaving for a while and would return; that Scheepers had no difficulty with this and did not ask to be let out of the cell block; that when Ndwayana left, Scheepers was making his coffee and chatting to the women who prepare food in the cell block; that Ndwayana walked the 20-odd metres to the CSC, where he met with Schoeman; that he returned to the cell block shortly after Scheepers telephoned Schoeman; that he unlocked the cell block and Scheepers left.

[31] It is apparent from these facts that, when Ndwayana locked the cell block when he went to meet with Schoeman, he did so deliberately. Despite that, he did not act with animus injuriandi – with the intention to injure Scheepers. That inference arises from the basis upon which Ndwayana left Scheepers inside the cell block, the duration of his absence and the fact that he opened the cell block for Scheepers immediately on his return and soon after Scheepers telephoned Schoeman to say that he wished to leave the cell block. Furthermore, his conduct was not wrongful. We say this because the cell block had to be locked at all times, especially if Ndwayana was not in the cell block. Scheepers knew, when he went to the cell block, that he would be locked in once he entered it. He must have known too that if Ndwayana left the cell block, he would have to lock the gate behind him and that anyone who was inside would have to await his return in order to leave. Ndwayana left the cell block because he was instructed by a superior to do so. That is a legitimate reason and, indeed, he would have been guilty of misconduct if he had refused to obey Schoeman’s order. He informed Scheepers that he was leaving and Scheepers chose to remain in the cell block to drink his coffee and chat to the women who worked there. In these circumstances, in our view, the legal convictions of the community would baulk at the imposition of liability on the appellant.

[32] In the result the following order is made:-

(a) The appeal is upheld with costs.

(b) The order of the court below is set aside and replaced with the following order:

‘The plaintiff’s claim is dismissed with costs.’

C PLASKET

JUDGE OF THE HIGH COURT

CTS COSSIE

ACTING JUDGE OF THE HIGH COURT

APPEARANCES:

COUNSEL FOR THE APPELLANT: ADV. N.M. PATERSON

INSTRUCTED BY: MESSRS N.N. DULLABH & CO.

5 BERTRAM STREET

GRAHAMSTOWN

COUNSEL FOR THE RESPONDENT: ADV A. FROST

INSTRUCTED BY: NEVILLE BORMAN & BOTHA

22 HILL STREET

GRAHAMSTOWN

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