Mene v Minister of Police

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Sambudla AJ
• Judgment Date: 05 September 2023
• Citation: 2023 JDR 3507 (ECM)
• Hearing Date: 26 April 2023
• Docket Number: 5640/2014
• Court: Eastern Cape Division

Sambudla AJ:

Introduction

[1]

Plaintiff has fashioned his cause of action on the actio injuriarum, to vindicate his rights to bodily integrity and liberty, following an alleged unlawful

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infringement by the members of the South African Police Service (SAPS) acting within the course and scope of their employment with the Minister of Police (defendant).

[2]

The defendant’s initial defence as pleaded in his plea dated the 05 November 2018, alleged a justification of the arrest and subsequent detention.

[3]

During the exchange of pleadings and discovery notices, the defendant was invited to discover the contents of the police docket. This was to enable the plaintiff to prepare for trial.

[4]

The defendant’s failure to make available the required police docket, prompted various applications, which then culminated in an application by the plaintiff, wherein an order, striking [1] out the defendant’s defence in the main, was sought and granted.

[5]

Thereafter, the defendant failed to afford itself the opportunity to purge its non-compliance, which if it was so minded, it could effectively do at the pain of a comprehensive and substantive application for rescission.

[6]

Apart from failing to purge such non-compliance, the defendant further failed to appear in court, at the very least, to test the plaintiff’s case without advancing any defence.

[7]

Regardless of the defendant’s defence being struck-out, and the latter being served with a notice of set-down on the 10 February 2023, there was no appearance on behalf of the defendant and the trial proceeded on such basis.

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Evidence.

[8]

The plaintiff, as the sole witness who testified at trial, led evidence, which was neither challenged nor gainsaid and narrated accordingly as adumbrated herein-under.

[9]

On the 01 December 2019, the plaintiff whilst in the company of Maphelo Matiwane (Matiwane), who was driving and the plaintiff was a conductor (driver-assistant), they picked up two hitch-hikers on the gravel road at Mahoyana Locality, Tsolo.

9.1

The plaintiff was sitting at the front of the van and the two man, to whom they had given a lift, sat at the back of a single cab Nissan light delivery vehicle (van);

9.2

All the occupants in the white Nissan (van) were en-route to Tsolo town;

9.3

At Tsolo, next to the Municipality building, the two passengers signaled their intention to highlight from the van and it was at that stage the plaintiff noticed heavily armed SAPS members and who were pointing firearms at all the occupants of car;

9.4

About eight SAPS members, dressed in police uniform, in three marked police vehicles surrounded the van;

9.5

All the occupants in the van were at gun point instructed to highlight from the vehicle and lie on the ground;

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9.6

Without any explanation/s and/or interview/s being given or held, the SAPS members effected an arrest on all the occupants of the van, which included the plaintiff;

9.7

No reason/s were proffered for the arrest and neither was a warrant of arrest produced by the SAPS members;

9.8

The plaintiff and Matiwane were severely assaulted by the SAPS members with booted feet, fists and fire-arm handles;

9.9

The assault meted to plaintiff and Matiwane was severe and sustained and curiously no such assault was extended to the other two passengers;

9.10

The SAPS members recovered a fire-arm and cash from the two males, who had been afforded a lift by Matiwane and plaintiff;

9.11

Without being prompted, the two males provided exculpatory facts to the SAPS members, in that, they must release the plaintiff and Matiwane as they were not involved in the commission of an offence;

9.12

The plaintiff and Matiwane merely provided as lift for reward to the two males;

9.13

Even though the SAPS members were so advised by the two males, this information was ignored and/or not investigated by the members;

9.14

After the arrest, which the plaintiff alleges to be unlawful and without any justification, all the occupants of the van were loaded

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into SAPS marked vehicles and thereafter detained at the Tsolo Police Station at the instance of these members; and

9.15

Through this ordeal, the plaintiff managed to identify one Mbasa, who is a member of the SAPS.

[10]

At Tsolo Police Station, the plaintiff and Matiwane were detained behind the counter with the other two unknown males.

[11]

A while later, an unknown woman and in the company of an unknown male companion, who were travelling in a truck, arrived at the police station where the plaintiff, Matiwane and the other two unknown males had been detained.

[12]

The unknown woman identified the two males in the presence of SAPS members, as the people who had committed a robbery and theft of her goods. She identified the two as suspects and made no such identification regarding plaintiff nor Matiwane.

[13]

Even though the two males, now suspects, had been identified by this unknown woman, the plaintiff remained unaware about the reasons for his arrest, subsequent detention and neither was plaintiff informed by the SAPS members of the reasons thereof.

[14]

Between 17H00 and 18H00, SAPS members from Qumbu arrived at the Tsolo Police Station. Firstly, they took the plaintiff and Matiwane to Dr. Malizo Mpehle Hospital for medical attention and treatment.

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[15]

After a brief detention for medical treatment and intervention at hospital, plaintiff and Matiwane, were transported to Qumbu Police Station and detained at the police cells.

[16]

Prior to being charged, the plaintiff was interviewed by Ngcizela a member of the SAPS stationed at the Qumbu Police Station. Apart from inviting the plaintiff to inform him about what he knew, the latter Ngcizela never advised the plaintiff of the reasons and the purpose for the arrest and detention.

[17]

What caught the plaintiff’s attention though, was an unsolicited remark by Ngcizela to the effect that, if he was the arresting officer, he would have released the plaintiff and Matiwane without detention. The sentiments expressed by Ngcizela came to naught, as the plaintiff and Matiwane were following the interviews by Ngcizela further detained.

[18]

On the 03 December 2015, at about 12H00, Ngcizela then caused the plaintiff and Matiwane to appear before the lower court.

[19]

During their first appearance, the plaintiff was advised about his rights to legal representation and bail. The plaintiff elected to be legally represented at the states expense and further sought to be released on bail.

[20]

A Legal Aid attorney who was present in court, promptly confirmed his intention to represent the plaintiff. When the plaintiff’s attorney applied for the determination of bail, the prosecutor advised the court not to afford plaintiff bail, as the latter was facing serious charges.

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[21]

Acting on the information or lack thereof, received from both the public prosecutor and the SAPS...