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IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

CASE NO:33740/14

In the matter between:

M.R.TAPELA                                                                                                1^ST PLAINTIFF

N.T. MONYAI                                                                                                2^ND PLAINTIFF

T. R. NDOU                                                                                                   3^RD PLAINTIFF

And

MINISTER OF POLICE                                                                                    DEFENDANT

JUDGMENT

MOLAHLEHI J

Introduction

[1] The plaintiffs instituted action proceedings against the defendant concerning the alleged unlawful arrest, detention and assault during the night of 24/25 April 2012.

[2] Initially the plaintiffs had instituted three separate claims against the defendant but same were subsequently consolidated into one case.

[3] At the beginning of the trial as per the agreement between the parties the court ordered a separation of the quantum from the merits. Accordingly the matter proceeded only on the merits.

[4] At the end of the hearing on 21 February 2017, the matter was postponed, granting the parties leave to file the heads of argument. There seems to have been some confusion as to whether oral submissions would have to be made after the submissions of the heads of arguments. That was clarified only on 10 November 2017 by the plaintiff's attorneys.

The issues for determination

[5] It is common cause that the plaintiffs were arrested for contravening the provisions of the Firearms Control Act (FCA) .[1] They were all arrested at their places of residences. It is also common cause that at the time of the arrest the police officers did not have warrants of arrest.

[6] The issue that needs consideration is whether in effecting the arrest the police complied with the requirements of s 40 (1) (a) and (5) of the Criminal Procedure Act (CPA).[2] Put in another way the issue is whether the police had reasonable suspicion that each of the plaintiffs individually committed a criminal offence, justifying an arrest without a warrant.

[7] The issue in relation to the assault is whether the plaintiffs on the evidence presented had proven on the balance of probabilities that they were assaulted by the police.

The defendant's version

[8] Sergeant Masingi (Masingi) was the first witness to testify for the defendant. He was at the time of the incident part of the task team based at the Beitbridge border post. His version is that the arrests of the plaintiffs were consequent to a tipoff from an informant who informed them that the plaintiffs were conducting illegal hunting in the area with a rifle.

[9] The first person they approached at his house in the evening was Mr. Tapela (Tapela). On arrival they informed him that they were members of the South African Police Service (SAPS) and further explained to him the reason for their visit. He, upon their request, granted permission to have his house searched.

[10] During the search they discovered bullets which Tapela said belonged to his, friend Mr. Monyai (Monyai). He further said that Monyai has two houses where he stays. He took them to the first house which is at Madimbo.

[11] He disputed the alleged assault on Tapela and stated that there was no reason for that because he (Tapela) was cooperative. They then left with him to the second house of Monyai which is at Masisi. On arrival and after introducing themselves they were granted permission to search the house.

[12] During their search they found a firearm in the safe and when they asked him (Monyai) about the bullets he informed them that they belonged to Tapela.

[13] They took the two to Masisi police station but did not detain them there because they were concerned that the police officers who were in charge of the police station were "too acquainted with the suspects" and they feared that that relationship might undermine their investigation. Their concern about detaining the suspect at that police station was reinforced according to him by one of the police officer asking the suspects about wild animal meat. It was also for this reason that they did not record the incident in the occurrence book.

[14] During cross examination Masingi stated that there was no other method through which they could bring him (Tapela) to court except to arrest him. He disputed that the reason for not detain them at Masisi was because the plaintiffs were badly assaulted.

[15] Seargent Lesaka (Lesaka) was the second witness of the defendant also a member of the task team at Beitbridge at the time. The essence of his testimony was to confirm the process they had followed before arresting each of the plaintiffs. He testified in this respect that before they arrested each one of the plaintiffs they identified themselves and gave reasons why they were arresting them. He also explained to them their constitutional rights.

[16] They arrested Tapela because he was in possession of ammunition in contravention of s 90 of the Ammunition (The Ammunition Act).

[17] In relation to the arrest of Mrs. Ndou his version is that she confirmed that Monyai was her boyfriend. According to him she gave them permission to search her house.

[18] During the search they found ammunition in the house. She was arrested and then taken to Masisi where she pointed Monyai's house. On arrival at the house they enquired from Monyai about his gun. He showed it to them together with its licence. He denied assaulting the plaintiffs at any stage during the process of arresting them.

[19] In relation to the arrest of Mrs Ndou (Ndou) he testified that they arrested her because they found her in possession of ammunition. At the time of going to her house they did not have suspicion that she had committed any offence but went there because they were looking for her husband. They also arrested her because she was found in possession of illegal cigarettes.

[20] During cross-examination , he testified that Ndou was arrested because she contravened the FCA.

[21] Sergeant Mahaswa was the third witness for the defendant and was also a member of the task team. He contended during his testimony that the arrest of Ndou was lawful. According to him there could not have been any ulterior motive in the arrest because he had a love affair with her younger sister. She permitted them to enter the house and at that time she was covered only in a towel. She also permitted them to search the house.

[22] One of the officers, Lesaka saw a box on top of the wardrobe and upon opening it he discovered that it had ammunition inside it. Ndou informed them that the ammunition belonged to her husband who at that time was at Masisi.

[23] Their search further revealed that she was also in possession of illegal and imported cigarettes from Zimbabwe. She failed to produce export permits for the importation of the cigarettes into South Africa. She was after that, arrested, and taken to Chamutulu where she was detained at the police station. He denied ever assaulting her.

[24] He was asked during cross-examination why he thought that Ndou had a firearm. He responded by stating that the information they received indicated that the people they were looking for were staying with her. He disputed that two of the officers he was with assaulted Ndou. He also testified that Ndou let the towel she had covered herself with, fall as an attempt to scare "us".

The case of the plaintiff

[25] Mr Tapela was the first witness for the plaintiffs. He testified that since the assault by the police he has had difficulties in walking and speaking. The consequence of that assault is that he now uses crutches to support him when walking.

[26] On the night of his arrest the police arrived at his house in the middle of the night while he and his family were asleep. He was awoken by the police shouting that he should open the door of his house. By the time he got out of the bed, the police were already in the children's bedroom.

[27] It would appear that as they were getting into his bedroom, he notified them that his wife was naked and apparently they withdrew from entering the room. A female officer then entered the bedroom and started searching.

[28] They handcuffed and assaulted him while in the house. They then took him to his other house where they continued assaulting him by kicking him over his body and head with their boots. They then asked him whether he knew why they were assaulting him. They told him that they were assaulting him because they were looking for guns. He told them that he has a gun in the other house.

[29] At some stage one of the policemen held him against the wall with his feet hanging while the others punched him in his stomach.

[30] Those who were searching the house came out later with ammunition and asked him where he got it from. He informed them that it belonged to his friend, Monyai.

[31] After that they left with him and went to Monyai's house at Madimbo. Before reaching the house, they stopped next to a church where they assaulted him again.

[32] On arrival at Monyai's house, he remained in the police car as they walked towards the house and fired two gun shots with a rifle gun.

[33] They then proceeded with him, Monyai and Ndou to Masisi police station where they assaulted them throughout the night until the morning.

[34] He testified further that he heard those who arrested them saying that they wanted to leave them at the Masisi police station, but those in charge of the police station refused, because of the serious injuries they suffered from the assault.

[35] Tapela further testified that they were taken to the clinic for medical attention arising from the assault. At the clinic, the nurses advised the police to take them to the hospital because of the serious injuries they had. However, instead of taking them to the hospital, they took them to an area near the fire station where they bandaged the wounds on their legs and after that took them back to the police station.

[36] The following morning they were taken to a camping site where they were assaulted. After that, they took them to the Beitbridge border post where they were threatened with deportation to Zimbabwe.

[37] They informed them that they were the South African citizen. Once they were told that the two were the South African citizen and one of them had requested a phone to telephone his attorney, they took them to the magistrate court. At the magistrate court, Tapela requested the magistrate to direct that they be taken to the hospital.

[38] Mrs Tapela was the second witness for the first plaintiff. According to her on the night in question, the police knocked at their house and demanded that they open the door. They entered the house even before they could open for them- while her husband was still dressing. She was lying naked on the bed when they entered her bedroom. As they were entering the bedroom, her husband told them that she was not dressed. They retreated, and only the female police officer entered the bedroom.

[39] The female police officer informed her that they were police officers from Polokwane. After searching the bedroom, she informed her to remain therein with the children.

[40] She further testified that she heard her husband screaming and asking the police why they were assaulting him and also why he should go with them. She never saw her husband from the time the police left with him to the time when he came back after about seven days. The police never told her why her husband was arrested.

[41] On his return from the detention her husband was walking with the assistance of crutches and having problems with his speech.

[42] Mrs Ndou was the third witness for the plaintiffs. She is the wife of Monyai and stays at Madimbo village. On the night in question, at about 22HOO she was awoken by a knock at the door of her house. The police came inside the house and told her that they were looking for Monyai. She told them that he was at Masisi.

[43] As the police entered her bedroom she was covered only with a towel. They told her that they were looking for guns. At that point, a female and a male police officer slapped her on her face with open hands. The towel she had covered herself with fell. One of the officers ordered them to stop the assault because he noticed that she was pregnant.

[44] They searched the house and found ammunition, which she told them, belonged to her husband. They arrested her and took her to the police station, still covered with the towel with a T-shirt at the top which was given to her by her daughter as the police were taking her away.

[45] At the police station, she was shown a box of cigarettes. The box was never shown to her whilst at home. She was detained at Masisi police station until the following day. She soiled herself while seated at the police station.

[46] Whilst at the police station she saw the police bring in Tapela and Monyai. After that she heard them screaming and saying the police were killing them. She saw them again the following day and that was when she heard one of the police saying that the two needed to be taken to the clinic.

[47] Monyai was the fourth witness for the plaintiffs. He testified that on 24 April he was picked up Tapela on his way to Masisi. On their return they ran out of petrol in the van they were traveling in. He left Tapela with the van to go and buy petrol but on his return he found him gone.

[48] In the evening while sleeping he was awoken by gunshots. The next thing he heard the police kicking his door and then came into his house. At the time they entered the house he was sleeping with his wife. They proceeded to open his safe and took out his shotgun. After that they asked him for its license, which he took out. After giving them the license they arrested him for giving ammunition to Tapela.

[49] They handcuffed him and after that assaulted him by kicking him with their boots while he was lying on the floor. They told him that they were assaulting him because he was in possession of a fire arm. He was then taken to Masisi where he found Tapela and Ndou. At the time Tapela was being assaulted by the police. He was also assaulted again at the police station with pipes and sticks.

[50] The following morning the police who arrived for the day shift indicated that they were not willing to detain them because of the serious injuries they had sustained from the assault.

[51] They were then taken to the clinic where the nurses refused to attend to them because of the seriousness of their injuries. They told the police to take them to the hospital.

[52] From the clinic they were taken next to the fire station where they were bandaged and after that they were taken back to the police station where they were assaulted again. He also confirmed what Tapela said regarding being taken to the border post, to the magistrate court where they were released on bail, and after that going to the hospital.

[53] During cross-examination, he disputed the version of Tapela that they were assaulted next to the toilet at the police station. He insisted that he found Tapela at the police station. He also disputed the version of Ndou that they arrived together at the police station. He confirmed what Tapela said about what happened at the clinic concerning the alleged refusal by the nurses to attend to them.

Legal principles

[54] It is common cause that the plaintiffs were arrested and detained without warrants of arrest. The defendant's justification for the arrests is based on the contention that the arresting officers received a tip-off from an informant that Tapela and Monyai were in possession of illegal firearms which they were using for illegal hunting. They were accordingly arrested for contravening the provisions of s 90 of the FCA which provides:

"No person may possess any ammunition unless he or she -

(A) holds a licence in respect of a firearm capable of discharging that ammunition;

(B) holds a permit to possess ammunition;

(C) holds a dealer's licence, manufacturer's licence, gunsmith's licence, import, export or in-transit permit or transporter's permit issued in terms of this Act; or

(D) is otherwise authorized to do so."

[55] As indicated earlier, the defendant's defence is thus based on the provisions of s 40 (1) of the CPA. The jurisdictional facts necessary to satisfy the requirements of section 40 (1) (a) of the CPA are the following:

a. the arresting officer must be a peace officer.

b. an offence must have been committed.

c. the offence or attempted offence must be committed in the  presence of the police officer.

d. The offence must relate to a serious easels.

[56] It is trite that police officers are permitted in terms s 40 (1) (b) of the CPA to arrest a person without a warrant only where they entertain a reasonable suspicion that the person being arrested is committing or has committed an offence listed in schedule 1 of the CPA.

[57] In arresting a person without a warrant a police officer must rely on his or her own suspicion and not that of any other person.. [3] The suspicion must be based on reasonable grounds

[58] The list of the offences upon which a police officer may effect an arrest without a warrant are listed in Schedule 1 of the CPA.[4]

[59] It is trite that the limitation to the powers of the police to arrest without a warrant is based on the consideration that such an action is a drastic invasion of individual liberty enshrined in s 12 of the Constitution. The section guarantees the right of security and freedom of a person which includes the right "not to be deprived of freedom arbitrarily or without just cause. In Rowen v Minister of Safety and Security NO[5] the court held that any deprivation of freedom is regarded as prema facie unlawful and requires justification by the arrestor.

[60] The consequences of an unlawful arrest on an arrestee were stated in Louw v Minister of Safety and Security[6], by Bertelsmann J in the following terms:

"An arrest is a drastic interference with the rights of the individual to freedom of movement and to dignity. In the recent past, several statements made by our Courts and academic commentators have underlined that an arrest should only be the last resort as a means of producing an accused person or a suspect in court."[7]

[61] It therefore follows that every time the police arrest a person without a warrant they have to show that their action is objectively justifiable, and conforms to the values and norms of the Bill of Rights. It is also for this reason that in each case where the arrest is effected without a warrant the police have a duty to consider other less evasive methods of bringing the suspect before the court.

[62] It is also well established in our law that the state bears the onus of justifying the arrest and detention without a warrant.[8] Recently this court in dealing with a situation similar to the present, in Mahlubi James Ntikinca and Another v Minister of Safety and Security[9], said:

"The inquiry into the unlawfulness or otherwise of an arrest without a warrant does not end with the issue of the existence of reasonable suspicion of the commission of the offence but includes an inquiry into whether under the circumstances the arrest was subjectively and objectively justified. Putting it in another way the determination of the wrongfulness or otherwise is not limited to reasonable suspicion of the commission of the offence only but includes an inquiry into whether there were no other options less evasive to the person's liberty.

The requirements constrain the powers of the police in effecting an arrest without a warrant of arrest in that they have to exercise their powers within the bounds of rationality, guided by the principles of constitutional legality.

In brief, in addition to showing that the arrest without a warrant was justified the police must also show that they did not abuse their powers. They have to show that in effecting the arrest they did not act in an arbitrary manner to deprive the arrestee freedom of movement and security. It is trite that the discretion which the police exercise in effecting an arrest has to be done rationally."[10]

[63] ,In relation to the issue of detention the court in Mahlongwana v Kwatinidubu Town Committee,[11] held that:

"It is clear that the mere act of arrest itself involves deprivation of liberty , but our law recognises a clear distinction between the act of arrest, which may occur anywhere, and the act of detention in custody, which involves incarceration after the arrest, and pending the taking of further procedural steps. The power granted to 'detain ' may in particular circumstances include the power to arrest. See R v Moquena E 1932 OPD 52. However, in my view, the power to arrest does not include the power to detain save insofar as such detention may be concomitant to the arrest itself. Arrest is the act by which a free person is apprehended , if necessary by use of force. Once the arrest has been effected, the authority of the person effecting the arrest insofar as any further detention is concerned, ceases. S v Van Vuuren 1983 (4) SA F 662 (T) at 668E. Any subsequent detention, which involves restraint in confinement for a specified or unspecified period of time, must be in terms of an authority to detain, and is not automatically conferred, without such authority, on the person authorised to arrest."

Evaluation and analysis

[64] I deal first with the issue of the lawfulness or otherwise of the arrests. As mentioned earlier in this judgment the defendant conceded that the arrests of each of the plaintiffs were made without warrants. The defendant contended in its heads of argument that in the three instances the arrests were justified in that there existed at the time of the arrests reasonable suspicion that the plaintiffs had contravened the provisions of the FCA. They contended in the alternative that each of the plaintiffs was committing an offence in the presence of the police in contravening the provisions of the FCA.

[65] About Monyai the defendant contended that its case is supported by the fact that he was ultimately found guilty and ordered to pay a fine of R1500.00 or imprisonment for one month.

[66] In the case of Ndou the respondent contended that in addition to the issue of the possession of ammunition in contravention of the Ammunition Act, she also contravened ss 15 and 81 of the Customs Duty Act (CDA). Section 15 of the CDA deals with provisional antidumping, countervailing and safeguarding of duty. Section 81 of CDA deals with the rate of import duty to be applied.

[67] The defendant has conceded that the arrests were made without warrants, the issue to consider as alluded to above is whether the defendant has with the evidence it presented before this court satisfied the requirements of section 40 (1) (b) of CPA. It is trite that the onus was on the defendant to show that the requirements were satisfied.

[68] The first inquiry to be conducted is whether the offences for which the plaintiffs were charged with are those envisaged in Schedule 1 of the CPA Schedule 1 of the CPA provides as follows:

"Any offence, except the offence of escaping from lawful custody in circumstances other than the circumstances referred to immediately hereunder, the punishment wherefore may be a period of imprisonment exceeding six months without the option of a fine."

[69] The offences for which a person may be prosecuted for in terms of the Schedule 1 are provided in terms of section 121 of the FCA. It provides:

"Any person convicted of a contravention of or failure to comply with any section mentioned in Column 1 of Schedule 4, may be sentenced to a fine or to imprisonment for a period not exceeding the period mentioned in Column 2 of that Schedule opposite the number of that section."

[70] The offenses in terms of s 90 of the FCA are set out in Column 1 of the schedule. It is indicated in Column 2 of the same Schedule that a person may not be sent to imprison for more than 15 years. It is also apparent from the reading of the Act that all the offences are given the option of a fine. This is confirmed by what happened in the case of Monyai who was found guilty of the provisions of the FCA for giving ammunition to Tapela. He was, as indicated earlier in this judgment, sentenced to one-month imprisonment with an option of a fine.

[71] It was undisputed that the Tapela and Ndou were in possession of the ammunition of a firearm. This was given to Tapela by the Monyai. It is quite clear that the offences for which the police believed, if at all, that the plaintiffs had committed are offences which on conviction carry an option of a fine. This means that the offenses for which they were arrested for are not those envisaged in Schedule 1 of the CPA. Put in another way, the offenses for which the police arrested the plaintiffs for are not those set out in Schedule I of the CPA. The arrest of each of the plaintiffs was unlawful because they did not comply with the requirements of section 40 (1) of the CPA.

[72] To emphasize, the offences, for which the plaintiffs, were suspected or alleged to have committed are not offences for which upon conviction a sentence of imprisonment could be imposed without an option of a fine.

[73] In respect of Ndou the testimony on behalf of the defendant was that the police went to her house because they were told that she stays with people who are in possession of firearms. It would appear from the version that they were told by the informant that Monyai had a relationship Ndou. It is thus clear that in her case there was no evidence that they ever had reasonable suspicion that she was in possession of ammunition.

[74] Chapter 12 of the CDA deals with categories of offences and penalties that may be imposed by the court in the event of contravention of its provision. Section 215 of the CDA deals with the penalty that may be imposed by the court and provides for both imprisonment and an option of a fine in a case of Category 1 of the offences.

[75] Category 2 offences are dealt with in terms of s 217 which also provides for both imprisonment and an option of a fine.

[76] The defendant also failed to provide evidence and substantiate its assertion that there were no alternative methods of taking the plaintiffs to court except for the drastic and invasive method of arresting them. On their version at least two of the plaintiffs are well known and are acquaintances of some of their own colleagues. The facts of the case indicate that the police failed to properly exercise their discretion in effecting the arrests.

[77] The objective analyses of the facts before this court indicate clearly that the police did not consider alternative methods of taking the plaintiffs to court, if at all there existed suspicion that they had committed any offence. They simply irrationally and with total disregard of each of the plaintiff's rights to privacy, dignity and security arrested them.

[78] In arresting each of the plaintiffs the police acted unlawfully and had total disregard the dignity and the safety of the plaintiffs. They acted wrongly because the offences which they claimed they believed the plaintiffs had committed did not fall within the purview of Schedule 1 of the CPA.

[79] In light of the above I found that the defendant has failed to discharge its duty of showing that the arrests of each of the plaintiffs without warrants were justified in terms of section 40 of the CPA.

The assault

[80] It is evidently clear from the above summary of the evidence of the respective parties that the court is faced with two mutually destructive versions. The approach to adopt when confronted with mutually irreconcilable versions is to make findings on the credibility, reliability of the witnesses and the probabilities.[12] In National Employers' General Insurance Co Ltd v Jagers,[13] the approach to adopt when dealing with the issue of conflicting versions was set out by the court as follows:

"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. This view seems to me to be in general accordance with the views expressed by Coetzee J in Koster Ko-operatiewe Landboumaatskappy Bpk v Suid­ Afrikaanse Spoorwee en Hawens (supra) and African Eagle Assurance Co Ltd v Gainer ( supra). I would merely stress, however, that when in such circumstances one talks about a plaintiff having discharged the onus which rested upon him on a balance of probabilities one really means that the Court is satisfied on a balance of probabilities that he was telling the truth and that his version was therefore acceptable. It does not seem to me to be desirable for a Court first to consider the question of the credibility of the witnesses as the trial Judge did in the present case, and then, having concluded that enquiry, to consider the probabilities of the case, as though the two aspects constitute separate fields of enquiry. In fact , as I have pointed out, it is only where a consideration of the probabilities fails to indicate where the truth probably lies, that recourse is had to an estimate of relative credibility apart from the probabilities."

[81] Turning to the facts of this case, the essence of the case of Ndou is that two of the police officers entered her house and asked her about the guns. After that two of them slapped her on the face with open hands.

[82] Sgt Mahasha on the other hand, testified that he has a relationship with the younger sister, of Ndou and therefore would never have allowed the other officers to assault her in his presence. That version was not challenged during cross­ examination by the Counsel for the plaintiffs.

[83] The version of the defendant is that in all the three instances there was no reason to assault the plaintiffs because they were cooperative. In this respect Ndou informed the police as soon as the found ammunition in the house that it belongs to her partner, Monyai. It is important to note that she was not handcuffed.

[84] The version of Ndou should for those reasons, be rejected on the basis that it is improbable. The version that is probable is that of Sgt Mahasha which, as already indicated, was never challenged.

Alleged assault: Tapela and Monyai.

[85] Tapela's version is that the police assaulted him at his house and also on their way to Ndou's house. The assault, according to him, continued at Masisi police station where the police are alleged to have assaulted him by pushing him and throwing him down on the floor of the charge office next to the toilets. The assault took place in the presence of Ndou, Warrant Officer Magana and other police officers. This version was confirmed by Ndou.

[86] However, Monyai presented a different version. While he confirmed that they were taken to the police station and assaulted in the charge office, he stated that he was not with them when the assault took place. He also stated that he did not see Tapela as he was being assaulted but could hear him screaming. He further contradicted Tapela and Ndou when he said that they were taken outside Masisi police station where they were put against the signpost and assaulted.

[87] In further support of the allegation of assault Tapela testified that because of the serious injuries they sustained as a result of the assault they were taken to the local clinic. The nurses at the clinic refused to treat them but instead gave the police a letter referring them to the hospital. Contrary to the testimony of Ndou and Monyai he testified that it was only him and Monyai who went to the clinic.

[88] In my view it sounds strange from the description of the injuries by the two plaintiffs, that the nurses would have refused to treat them but simply sent them to the hospital. The impression created is that the injuries arising from the alleged assault were so serious that they could not walk properly and needed to be bandaged.

[89] At best, if their version was to be accepted, then at least the nurses would have bandaged them and referred them to the hospital. Furthermore, if the injuries were as serious as they describe them to be, it seems strange that the nurses did not call an ambulance to take them to the hospital.

[90] In my view, the testimony of the nurses who are alleged to have refused to treat the plaintiffs was critical and central to corroborating the allegations of the alleged assaults. There is no evidence as to why they were not called to testify. The only reasonable inference to draw is that the nurses would have given evidence that would have contradicted that of the plaintiffs.

[91] There are several factors that placed the credibility of Tapela into serious doubt. At the beginning of his testimony before his counsel could lead him in evidence in chief, immediately after taking oath he placed on the record that he has, as a result of the assault, suffered memory loss. This was however not supported by any expert evidence. Even then he could not sustain it during cross-examination. He stated during cross-examination that he could not recall the colour of the uniform of the police. He could however recall that people who assaulted him at the fire station had red berets on. He also could recall the colour of the van they travelled in before the arrest. He also, remembered in detail of how they got stuck because of petrol and how he took the bullets out of the van before leaving as Monyai was delaying in coming back with petrol. He also remembered that the van was not very far from his house.

[92] Monyai's version is that they were taken to the fire station where their feet were wrapped in bandages and after that taken to the Masisi police station. It is important to note that this version was never put to the defendant's witnesses.

[93] Another important point in the evaluation of the evidence of Tapela and Monyai is that the police at the Masisi police station are alleged to have refused to book them in on the first occasion they were taken there because of their injuries. It is however the same police officials who took them in the following day but did so without taking them first to the hospital or the clinic.

[94] The testimony of Mrs. Tapela did not assist the case of Tapela in any material way because she did not see the assault taking place. The suggestion or inference that she sought to make in relation to the assault was that her husband was walking on crutches and had difficulties in speaking. This did not assist the case as there was no expert evidence to indicate what the cause of the problems that he (Tapela) had could have been.

[95] The other person who could have assisted this court in determining whether the alleged assault did take place is Warrant Officer Magana of Masisi police station. He was never called as a witness and no explanation was preferred as to why.

[96] It is also important to note that the extent of the injuries as described by Tapela is not supported by any medico-legal examination by an expert. There is nothing in the district surgeon's report that shows that he (Tapela) had difficulties in walking or speaking. The report simply states that he had aberrations on both hands and scars on the head and the foot.

[97] In relation to Monyai referenced was made to the report by the district surgeon Dr. Ramavhuyo who is stationed Masisi. The first problem with the report is that it purports to be supported by an affidavit made by the district surgeon. It is however not commissioned by a Commissioner of oaths. The second problem is that the district surgeon, whose full details appear on the report, including his telephone number was not called to testify. There was no explanation proffered as to why he was not called to testify. It follows therefore that the documents do not comply with the requirements of s 212 (4) of the CPA.

[98] In light of the above, I am of the view that the plaintiffs have failed to discharge their onus of showing that they were each assaulted by the members of the defendant.

Conclusion

[99] In light of the above discussion I find that the defendant has failed to prove that the arrest and detention of each of the plaintiffs were lawful. Accordingly, the plaintiff succeeds in their claim for the unlawful arrest and detention by members of the defendant.

[100] About the claim of assault I find that the plaintiffs have each failed to show on the balance of probabilities that they were assaulted by the police.

ORDER

[101] In the premises the following order is made:

Claim: Unlawful arrest and detention

1. The defendant has failed to justify the arrest of each of the plaintiffs' without a warrant of arrest.

2. Judgment is entered in favour of the plaintiffs about their unlawful arrest and detention.

Claim: Assault

3. The plaintiffs have each failed to prove on the balance of probabilities that they were assaulted by the police.

4. The plaintiffs' claim for damages based on the alleged assaults on each one of them is dismissed.

Quantum

5. The matter is postponed sine die for consideration of quantum relating to the unlawful arrest and detention.

6. Costs to be in the course.

MOLAHLEHI J

JUDGE OF THE HIGH COURT

Date of Hearing: 21 February 2017

Judgment Delivered: 07 December 2017

APPEARANCES

For The PLAINTIFF: JJN Swart

Instructed By: Erwee Attorneys

For The DEFENDANT

Instructed By: State Attorney

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