REPUBLIC OF SOUTH AFRICA

IN THE GAUTENG DIVISION OF THE HIGH COURT OF SOUTH AFRICA,

PRETORIA
CASE NO: 29473/2012 
DATE: 05 DECEMBER 2013 
NOT REPORTABLE 
NOT OF INTEREST TO OTHER JUDGES 

In the matter between:

LAURENTIUS PIETER MARTHINUS BEZUIDENHOUT 			PLAINTIFF
 and

MINISTE OF POLICE 						         DEFENDANT

JUDGMENT
HIEMSTRA AJ

[1]	The plaintiff, a male security officer employed by ERRS Security Company, claims damages from the Minister of Police for assault, unlawful arrest and detention by members of the South African Police Service (SAPS), acting within the course and scope of their employment. The defendant admits that the plaintiff had been arrested and detained, but claims that it has been lawful. The defendant denies that members of the SAPS had assaulted the plaintiff.
[1]	
[2] 	Since the arrest and detention had been admitted, the onus to prove that it had been lawful rests on the defendant. The onus to prove the assault rests on the plaintiff. The parties agreed at the outset that the defendant should present its case first since the major part of the onus of proof rested on the defendant.
[3] 	The plaintiff’s employer was engaged in the protection and guarding of Gautrain building sites at the time. During the early hours of 6 November 2010, the plaintiff and his colleague, Mr Simon Sithole, had been patrolling Gautrain sites in a bakkie, the property of their employer. The plaintiff was the driver and Mr Sithole sat in the front passenger seat. The name of the company was emblazoned on the sides of the vehicle. At about 02:00 members of the SAPS, constables Petrus Nkohlo Peter Monyamane and female constable Chauke passed them in a police vehicle in Nelson Mandela Drive near the corner of Schoeman Street in Pretoria. They sounded their siren and flashed blue lights. They caused the plaintiff to stop his vehicle. So far the versions of the two parties coincide broadly. On what followed, the versions part ways and cannot be reconciled.
[4]	The only witness for the defendant was Constable Petrus Nkohlo (Nkohlo). His colleage, Constable Peter Monyamane, was present at court, but counsel for the defendant did not call him to testify. I shall in due course indicate whether a negative inference should be drawn from the fact that he did not testify to corroborate the evidence of Nkohlo.

[5]	Nkohlo testified that during the night in question SAPS members stationed at the Sunnyside Police Station, together with Metro Police conducted a “stop-and-search” operation and were patrolling the streets of Pretoria. At about 02:30, while passing the vehicle driven by the plaintiff in Nelson Mandela drive near Shoeman Street, he and his colleagues noticed the passenger, Mr Sithole, drinking from a bottle of Carling Black Label beer. They stopped the vehicle. Nkohlo went to the passenger’s side of the vehicle and Monyamane to the driver’s side. Nkohlo said to Sithole that he was going to arrest him for drinking in public. Sithole offered no resistance, allowed Nkohlo to handcuff him and walked with him to the police vehicle. However, the plaintiff got out of the vehicle, told the policemen they were that they were “dom kon- stabels” that did not know their work, he pushed them around and said that he would assault them. When the policemen had put Sithole in the police vehicle and had closed the door, the plaintiff opened the door and tried to pull Sithole out. The policemen told the plaintiff that they would arrest him for interfering with their duties. However, the plaintiff kept swearing at them and fighting them. They then called back-up, which arrived soon. After the back-up arrived, the plaintiff kept fighting and swearing. They eventually managed to subdue and handcuff him. Nkohlo admitted that in the process of subduing the plaintiff, one of the police officers had squirted pepper spray into his eyes. They put him with Sithole in the police vehicle. They were taken to the Sunnyside Police Station where case dockets were opened and the plaintiff and Sithole were detained in the police cells.
[6]	The plaintiff's version is completely different. He confirmed that the police officers had stopped his vehicle. He said that Nkohlo had asked Sithole for his identity book or his company identity card. Sithole did not have these with him. The plaintiff said that they would fetch it, but the police officers would have nothing of it. He suggested that they follow their vehicle to Sithole’s home to fetch the identity documents, but the police officers said that they did not have time. The plaintiff insisted that they did not have any reason to arrest Sithole. Monyamane then demanded money from Sit- hole. Sithole refused to pay him any money, whereupon he Monyanabe said that they would find a reason to arrest him. Monyamane then went to the police vehicle and returned with two Black Label beer bottles, which he put down between Sithole’s feet in the security vehicle. When the plaintiff protested, Nkohlo said something like “shut up white boer, this is our country and we will do what we like”.
[7]	The plaintiff testified that he would never have allowed Mr Sithole to drink on duty or in a company vehicle. Company policy strictly forbids it. Mr Johan Booyse, the company manager confirmed that under no circumstances would any company officer drink on duty.
[8]	The plaintiff further testified that while the police officers were handcuffing Sithole, he moved around the vehicle and told Sithole not to worry, he would phone their manager, Mr Booyse. He went with his cell phone around the police vehicle and took two photographs. He tried to call Mr Booyse, but his number was engaged. He eventually got through to Mr Booyse and told him what had been happening. While talking, he noticed Nkohlo talking on a radio. After a while about seven police vehicles arrived on the scene as well as three Metro Police vehicles. A lot of policemen approached him and hit him with batons, fists and open hands. He tried to throw his cell phone into his vehicle, but was prevented. While defending himself against the blows someone put his hand from the back through his legs and pulled him down by his  private parts. The plaintiff suspects that it had been Nkohlo because Nkohlo had been right behind him. He was pinned to the ground with his hands and knees spread out. He still had his cell phone in his hand and Nkohlo stomped on this hand so that he had to release his cell phone. Nkohlo picked it up. While lying on the ground someone squirted pepper spray into his eyes. The policemen picked him up and dragged him to the police vehicle. While dragging him, he was again squirted in the eyes with pepper spray from a very short distance.
[9]	At the police station the plaintiff’s and Sithole’s personal belongings were taken and entered into a register. At the police station, Nkohlo and Monyamane made the plaintiff and Sithole sit on a long bench while they were doing paper work. The plaintiff asked Nkohlo for his cell phone, but he did not reply. The plaintiff then said that he would open a charge of theft against him. Nkohlo said that he could do what he liked, he had no proof that that he (Nkohlo) had taken the cell phone.
[10]	Nkohlo handed the plaintiff a document titled “NOTICE OF RIGHTS IN TERMS OF THE CONSTITUTION” which he had filled in. He told the plaintiff to sign the document, but he refused.
[11]	The plaintiff had suffered some facial and head injuries. At one stage a constable fetched the plaintiff from his cell to take him for a medical examination. Nkohlo and Monyamane accompanied him to the hospital. The plaintiff had remained handcuffed ali the time. The medical practitioner asked Nkohlo and Monyamane to remove the handcuffs because she could not adequately examine him in that position. He had a thick jacket on which he could not remove with the handcuffs on. They told her they did not know where the key was.

[12]	Nkohlo and Monyamane returned the plaintiff to the police station where he was locked up in a cell separately from Sithole. While locked up, a constable asked him if he would like to phone someone to get him out. He told the constable that he did not have his cell phone. The constable used his own cell phone and dialled someone. He toid the plaintiff that that person would get him out. The plaintiff spoke to the person who introduced himself as an attorney. He spoke with a foreign accent and said he could get the plaintiff out, but it would cost him R1 500. The plaintiff said he could get the money. The constable allowed him to phone Mr Booyse. He reached Mr Booyse, who arrived at the police station at about 08:00. After a full day of negotiating and pleading, the plaintiff and Mr Sithole were released. The plaintiff said he did not have a watch with him and estimated that they had been released between 18:00 and 18:30. Mr Booyse said it was about 20:00. When the plaintiff was released, his shoe laces and belt were returned, but not his cell phone and a gold pendant that he had worn around his neck.
[13]	Immediately after his release, the plaintiff returned to the charge office and laid a complaint of assault and unlawful arrest and detention. The prosecutor declined to prosecute the police officers.
[14]	Upon his release the plaintiff was given a written warning to appear in the Hatfield Magistrates’ Court on Monday 8 November 2010 at 08:30. He duly went to the court on that day, but there was no case for him on the roll. He spent the entire morning trying to find out where he had to appear. He was eventually told that there was no case and that he could leave. He never again heard of the matter.
[15]	The plaintiff was unable to work for four days. He said that he had suffered headaches for about a month. He still suffers recurring headaches which he had not suffered before.
[16]	The plaintiff testified that the incident had a lasting effect on him. He works in the security industry, but has no trust in the SAPS. In the course of his duties he often has to arrest offenders. He finds himself unable to take such offenders to a police station. He always instructs other officers to do it.
[17]	Mr Sithole had been subpoenaed to testify. However, his mother had passed away earlier during the week of the trial and he had to attend her funeral in Port Elizabeth.
[18]	Mr Booyse, the company manager testified in support of the plaintiff. He confirmed the evidence of the plaintiff insofar as it related to him. He said he had arrived at the police station at about 08:00 the following morning. He spent the full day until 20:00 negotiating the release of the plaintiff and Mr Sithole. He had to pay an amount of R1 500 for their release. He said he had not been given a bail receipt. He is convinced that what he had paid was a bribe and not bail.
EVALUATION OF THE EVIDENCE

[19]	It is common cause that the plaintiff had been arrested and detained. Arrest and detention are prima facie wrongful and the onus to prove the lawfulness of the arrest and detention rests on the defendant.
[20]	Bearing in mind the incidence of the onus of proof, I must decide which version is more probable, if I cannot decide this on a balance of probabilities the party that bears the onus will not have discharged it. In weighing up the probabilities I shall be guided by the well-established technique described in Stellenbosch Farmers' Winery Group Ltd & Another v Martell et Cie and Others.
[21]	There were many eyewitnesses to the events at the scene of the arrest. Monyamane was an active participant. Constable Chauke was also present during all the events. Monyamane was in fact present at court. In my view a negative inference must be drawn from the considered decision not to call him. Admittedly, Sithole was also not called by the plaintiff. However, the plaintiff gave a plausible and acceptable explanation for his absence.

[22] Nkohlo made a statement immediately after the incident and it formed part of the discovered documents. Nkohlo was confronted in cross-examination with certain contradictions between his statement and his evidence in court. His statement is brief and obviously cannot cover all the details of the events. However, there is one glaring contradiction which Nkohlo failed to explain plausibly. He was emphatic that he and Monyamane had put Sithole into the police vehicle without any resistance. When the plaintiff tried to release Sithole and a scuffle broke out, they called for back-up. It sounds reasonably plausible up to this point. However, his statement gives a completely different sequence of events. He said that when they had indicated their intention to arrest Sithole, the plaintiff had started swearing and threatening to assault them. Thereafter he called for back-up. When the back-up arrived, they managed to arrest Sithole. Thereafter the plaintiff tried to free Sithole. They then subdued the plaintiff and arrested him. When this contradiction was put to Nkohlo, he said that he had made a mistake with the name of the person they had arrested with the help of the back-up. However, he had described Sithole in the same sentence as the plaintiff’s crew. It is therefore clear that he did not merely make a mistake with the name of the person. He clearly intended to convey that they had arrested Sithole with the help of the back-up. Glaring as this contradiction is, it is in itself not fatal to the defendant’s case. It could be argued that Nkohlo’s memory had failed him. However, I must also consider the demeanour of the witnesses and the inherent probability of their versions.
[23] I have carefully observed the demeanour of the witnesses. Nkohlo was insolent, contemptuous of the court and counsel for the plaintiff. He slumped so low in his chair in the witness box that I could not see his face. When I directed him sit upright, he slowly shifted slightly higher only to slither back moments later. During cross- examination he was questioned about Mr Sithole’s case docket. He said that there had been no docket because minor charges are recorded in a document that he referred to as a FIC. He said that is was at the police station and could be obtained. Counsel for the plaintiff requested him to fetch the document during the lunch break. He reluctantly agreed to do so. However, he simply ignored the request and made no effort to obtain it. 
[24]	Nkohlo further showed no scruples regarding the unnecessary brutality of the arrest. It seemed as if he regarded the use of pepper spray the most natural thing to do, even to a helpless man pinned to the ground by a whole squad of policemen. In my view the use of pepper spray was gratuitous and designed to cause unnecessary pain and anguish.
[25]	The plaintiff, on the other hand, made an excellent impression on me. He was courteous and forthcoming. Despite uncompromising cross-examination, he remained polite and restrained.
[26]	I further find that the defendant’s version is inherently improbable. I have no doubt that the security company would have a firm policy about drinking on duty and that no deviation would be tolerated. The plaintiff was Mr Sithole’s senior. It is inconceivable that he would have allowed Mr Sithole to drink in the vehicle while on patrol. I make no finding in this regard, but the suspicion looms large that the police officers had planted two Black Label beer bottles in the plaintiff’s vehicle in order to create a reason to arrest Sithole after he had refused to pay a bribe.

[27]	Shocking and disturbing as the plaintiff’s version is, it is not improbable. Outrages like this are unfortunately the order of the day.
[28]	I therefore find that the defendant had failed to show on a balance of probabilities that the arrest and detention of the plaintiff had been lawful. 

THE QUANTUM OF DAMAGES
[29]	The plaintiff claims damages under the following heads:
1.	Wrongful arrest and detention:
1.1	Loss of income:	   R 20 000
1.2	General damages: 					  R100 000
	Total:							  R120 000
2.	Assault:
2.1	Loss of income:	R 20 000
2.2	Past and future medical expenses:	R 10 000
2.3	General damages:	R100 000 
Total:		R130 000

3. Iniuria:

  R100 000

TOTAL:

General damages:
						        R330 000

 

[30]	In assessing an appropriate award of compensation, I shall refrain from relying excessively on awards in previous cases. As Nugent JA said in Minister of Safety & Security v Seymour “the assessment of awards of general damages with reference to awards made in previous cases is fraught with difficulty. Only in few cases are the facts directly comparable. Previous awards provide a useful guide, but nothing more. 
[31]	The plaintiff has not proven his past of future medical expenses, and I shall award no amounts in respect thereof. I am further of the view that it serves no purpose to award separate amounts under each head set out in the plaintiff’s particulars of claim. A trial judge has a large discretion to award what he or she in the circumstances considers to be fair and adequate compensation to an injured party  I therefore prefer to award a globular amount.
[32]	The plaintiff had been grievously humiliated and had been deprived of his freedom for approximately 18 hours. One hour of unlawful detention is one hour too many. Using the numerous previous decisions that I have been referred to as broad guideline, I believe that a fair and adequate compensation is the sum of R200 000.
In the result I make the following order:
The defendant is ordered to pay to the plaintiff—
1.	The sum of R200 000;
2.	Interest on aforesaid sum at the prescribed rate of interest from the date of judgment to the date of payment;
3.	Costs of suit.
J HIEMSTRA
ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA

Date of hearing:			15 November 2013
Date of judgment:			05 December 2013
Counsel for the plaintiff:		Adv. J.H.P. Hattingh
Attorney for the plaintiff:		Micha J. van Vuuren Attorneys 
Ref.: MB0122
Counsel for the respondent:		Adv. P Monyane
 					Adv. M. Kgareya

Attorney for the respondent: 		The State Attorney 
Ref: JM/KF7609/2011/Z48
(Mr J. Moselane)