Minister of Police v Rabie

• Jurisdiction: South Africa
• Judge: Jansen JA, Joubert JA, Cillié JA, Van Heerden JA and Vivier AJA
• Judgment Date: 27 September 1985
• Hearing Date: 03 September 1984
• Court: Appellate Division

Van Heerden JA:

A In an action instituted in the Witwatersrand Local Division, the respondent claimed damages from one Van der Westhuizen, as first defendant, and the appellant, as second defendant. He alleged that he was assaulted and unlawfully arrested by Van der Westhuizen who also "unlawfully, B maliciously and without any reason or grounds therefor" laid a false charge of attempted housebreaking against him (resulting in detention in a prison for some 16 days), and "wrongfully, maliciously and without just cause" caused him to be prosecuted. The respondent also alleged that Van der Westhuizen was a policeman who at all material times

C "was acting in his capacity as a policeman in the service of the South African Police and was acting within the course and scope of his employment as such".

In his plea the appellant denied the above allegations. Van der Westhuizen did not enter an appearance to defend the action but at the commencement of the proceedings before him GOLDSTONE J ruled that the trial should proceed against both defendants.

D The appellant and the respondent filed a statement of admitted facts which reads as follows:

"1.

On 31 December 1980 second defendant, one Albertus Arnoldus van der Westhuizen, attended a social function at his ex-in-laws' home, which was situated across the road from the CNA on the corner of Jules and King Streets, Malvern. E The second defendant was asked to leave the social function and, subsequent to a complaint being made to the Cleveland Police Station, the second defendant left the social function.

2.

On Thursday morning, 1 January 1981, at approximately 00h30 the plaintiff, André Rabie, was walking down Jules Street, Malvern, past a shopping complex situated on the corner of Jules and King Streets, Malvern.

3.

As the plaintiff (approximately 5'4" and 170 lbs) passed F the CNA shop (referred to in para 1), the second defendant in this matter, one Albertus Arnoldus van der Westhuizen (approximately 6'4" and 195 lbs), walked out from behind a tree, slightly ahead of the plaintiff, grabbed hold of the plaintiff and asked him "Hoekom wil jy inbreek?"

4.

The plaintiff replied "I don't know what you are talking about." The second defendant then said "Moenie lieg nie" and then struck the plaintiff with a wheel spanner across the forehead.

5.

The plaintiff G sustained an open wound on the forehead and bled profusely.

6.

The second defendant identified himself as a policeman, by stating that he was a policeman and that he was arresting the plaintiff and taking him to the police station.

7.

The second defendant then took the plaintiff to the CNA shop-window, banged his head against the window and said "Het jy hier ingebreek?"

8.

After a H brief discussion with persons over the road, the second defendant took the plaintiff, put his hands through his (the second defendant's) vehicle's front window, wound up the window, thereby causing the plaintiff's hand to be jammed between the window and the door-frame of the vehicle. Whilst the plaintiff was then outside the vehicle, the second defendant himself got into the vehicle with one Johanna van der I Westhuizen (his ex-wife) and drove off with the plaintiff dragging outside for a distance of approximately 200 metres.

9.

The second defendant then stopped and allowed the plaintiff to get into the vehicle aforesaid and took the plaintiff to the Cleveland Police Station where he:

(i)

reported that the plaintiff had attempted to break the CNA shopwindow with a three-quarter brick by hitting the window five times;

(ii)

wrote out his own statement to the above effect as per annexure 'A';

(iii)

J filled out a docket himself.

Van Heerden JA

10.

The second defendant and the policeman on duty, one A Sergeant Sadie, went to the scene of the crime where:

(i)

no brick was found at the scene pointed out by the second defendant;

(ii)

no chip marks appeared on the window allegedly hit with the brick, although there were 'dust marks';

(iii)

the door-frame was not bent or damaged.

The plaintiff was tried and detained (see infra) as a B result of the second defendant's statement, which, apart from his evidence in the trial, was his only further involvement in the matter.

11.

Pursuant to the above facts, the plaintiff was taken to the new General Hospital where he received 14 stitches to the open wound on his forehead. Thereafter, he was taken to the Jeppe Police cells where he was detained until the next C day.

12.

At the Cleveland Police Station the plaintiff made a verbal statement to Sergeant Sadie to the effect that he denied all liability on the charge. On 1 January 1981, the plaintiff made a statement as per annexure 'B'. The plaintiff accompanied the investigating officer to the scene of the crime, where blood marks, appearing on the shop-window of the CNA, were shown to the investigating D officer and where he viewed the door that allegedly was hit by the plaintiff with a brick.

13.

At approximately midday on 1 January 1981, the plaintiff, after being charged with attempted housebreaking in the Jeppe court, was removed to the Fort Prison to await trial. Bail was set at R200, which the plaintiff and his family were unable to pay.

14.

On 16 January 1981, the plaintiff appeared in court and the E trial was postponed, whilst bail was reduced to R100, which was paid by the plaintiff's family and he was released. The plaintiff therefore spent 16 days in detention at the Fort Prison in Hillbrow.

15.

Pursuant to the above and in the normal course of events, the plaintiff was prosecuted by the State at the Jeppe magistrate's court where he appeared on a charge of attempted housebreaking and attempted malicious damage to property, which trial commenced on 19 February, was F adjourned and continued on 16 March, when the plaintiff was acquitted on all charges.

16.

The second defendant stated to Colonel Van Rensburg, the Divisional Commissioner of Police for the East Rand, that he considered himself as being on duty at the time of the assault.

17.

During the period 31 December 1980 to July 1981, the second G defendant was employed in the South African Police Force:

(i)

as a policeman in the mechanical section of the South African Police at Boksburg;

(ii)

his duties were that of a mechanic, ie to repair police vehicles;

(iii)

second defendant worked office hours and went off duty on 31 December 1980 at 16h15.

18.

H At the time of the assault the second defendant was:

(i)

dressed in private clothing;

(ii)

in his private vehicle in Malvern; and

(iii)

at the scene in pursuance of private interests."

It was therefore not in dispute that the respondent had been inter alia unlawfully assaulted and arrested by Van der Westhuizen. The respondent was the only witness and his I evidence related mainly to the damages claimed by him. He also dealt, however, with the circumstances leading to the assaults, arrest, detention and prosecution.

The Court a quo held that Van der Westhuizen had acted "as a servant of the State" and that the appellant was vicariously liable for the damages suffered by the respondent. In the result the defendants were ordered, jointly and severally, to J pay to the respondent the sum of R5 750 (and

Van Heerden JA

A costs). This amount was made up as follows: R2 000 for the assault, R500 for the unlawful arrest, R2 500 for the wrongful detention and the balance for the malicious prosecution.

It was common cause at the hearing of the appeal that although Van der Westhuizen was employed as a mechanic, he was a member B of the Police Force as defined in s 1 of the Police Act 7 of 1958 and hence also a peace officer within the ambit of s 1 of the Criminal Procedure Act 51 of 1977. In terms of s 40 (1) of the latter Act he was therefore entitled to arrest without a warrant, inter alia, anyone who committed or attempted to commit an offence in his presence, or who was found at any C place by night in circumstances which afforded reasonable grounds for believing that such person had committed or was about to commit an offence.

The respondent's claim against the appellant was based on the provisions of s 1 of the State Liabilities Act 20 of 1957. That section reads as follows:

"Any claim against the State which would, if that claim had D arisen against a person, be the ground of an action in any competent court, shall be cognisable by such court, whether the claim arises out of any contract lawfully entered into on behalf of the State or out of any wrong committed by any servant of the State, acting in his capacity and within the scope of his authority as such servant."

In Mhlongo and Another NO v Minister of Police 1978 (2) SA 551 (A) at 567, CORBETT JA said:

E "All members of the South African Police Force are prima facie servants of the State and consequently, when a wrongful act is committed by a member of the Force in the course or scope of his employment " (my italics) "the State is prima facie liable. It is then for the State to show that, in committing the wrongful act, the policeman was engaged upon a duty or function of such a nature as to take him out of the category of F servant pro hac vice. In order for the duty or function to take him out of the category of servant it must be one which is personal to the policeman in the sense that from its very nature the State is so deprived of the power to direct and control him in the carrying out of his duty or function, that he cannot be regarded pro hac vice as a servant of the State."

CORBETT JA found it unnecessary to decide whether the arrest of a suspect can be regarded as a personal duty taking the policeman outside the category of servant. The point was, G however, decided in Minister van Polisie en 'n Ander v...