Ndiyalwa v Minister of Police
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | Cengani-Mbakaza AJ |
| Judgment Date | 18 July 2023 |
| Citation | 2023 JDR 2759 (ECGEL) |
| Docket Number | EL1605/21 |
| Court | East London Circuit Local Division |
Cengani-Mbakaza AJ:
Introduction
On 05 December 2019, the Plaintiff was arrested and detained by the police on allegations of attempted murder. On 02 January 2020, he was released on bail. Following the said events, he instituted action against the Minister of Police. He demands payment in an amount totalling R1 300 000.00 (One Million Three Hundred
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Cengani-Mbakaza AJ
Thousand Rand only) for damages that he allegedly suffered as a result of his arrest and his subsequent detention.
The pleadings
On 23 November 2021, the Plaintiff issued a combined summons in this court, the particulars of which are formulated as follows:
In relation to Claim A, Plaintiff avers that he was unlawfully and wrongfully arrested without a warrant of arrest in circumstances where the police did not entertain any reasonable suspicion that he had committed a Schedule 1 offence. As a result, he suffered damages in the sum of R800 000 00 (Eight Hundred Thousand Rand only).
In respect of Claim B, Plaintiff alleges that he was detained unlawfully and as a result thereof his freedom of movement was violated. He further contends that he was detained in a cell where he was not allowed to move as he wanted; he was taken away from his family; he was detained in an environment which is not suitable for him; the cells were dirty and full of lice; was forced to share smelly blankets with other inmates and was caused to sleep on cold cement floor during cold winter nights. As a result, thereof, he suffered damages in the sum of R400 000, 00 (Four Hundred Thousand Rand only)
In the specificity of Claim C, the Plaintiff asserts that he was arrested in full view of the general public and family members who consequently held a belief of him being a criminal of the highest degree, not deserving to be amongst the members of the public and be subject to legal proceedings. According to the Plaintiff’s allegations, the conduct of the police resulted in severe impairment of his reputation and feelings of grievance, embarrassment, and humiliation. Following the claims, the Plaintiff seeks an amount of R400 000 00 (Four Hundred Thousand Rand only).
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Cengani-Mbakaza AJ
On 04 March 2022, the Defendant filed a notice of appearance to defend and subsequently filed his plea on 25 August 2022. In his plea, Defendant admits that Plaintiff was arrested without a warrant. However, his arrest was justified in terms of Section 40(1) (b) of the Criminal Procedure Act 51 of 1977 (“the CPA”).
The parties agreed to apply for separation of the merits and quantum in a pre-trial conference minute dated 25 August 2022. On the date of the trial, the court, on application, made an order that the merits be separated from quantum in terms of Rule 33(4) of the Uniform Rules of Court.
The trial proceeded on the basis that Defendant had a duty to begin and bore the onus to prove that arrest and subsequent detention were justified.
The evidence
Constable Mandilakhe Makapela (the arresting officer) testified that he received a police docket containing a complaint of assault by the complainant. He visited the complainant at the hospital and noticed that he was badly injured. Despite his injuries, he could speak, so the arresting officer interviewed him. The complainant informed him that he was assaulted by two males, one of whom he identified as Terra, Thembela. When questioned about the identity of Terra, the complainant mentioned that his girlfriend knew the suspect and where he could be found. The arresting officer recorded a statement, but the complainant could not endorse his signature due to severe injuries on his hands.
The arresting officer proceeded to the residence of the complainant’s girlfriend, who gave him directions to Terra’s location. When he arrived at Amalinda, he apprehended the Plaintiff, whom the complainant’s girlfriend identified as Terra. The arresting officer testified that he informed him of the allegations he was facing. The Plaintiff did not deny them. He further informed him of his Constitutional rights and detained him at the Cambridge police station. The arresting officer further testified that he entertained a suspicion which, according to him, was reasonable in that the Plaintiff allegedly committed an offence of attempted murder and was identified by the complainant’s girlfriend after he had consulted the complainant at the hospital.
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Cengani-Mbakaza AJ
In cross-examination, the officer was asked about the sufficiency of the information which led to the arrest in so far as it related to the identification of the perpetrator simply as ‘Terra’. In his response, he informed the court that Plaintiff was identified by the complainant’s girlfriend and that people knew each other by nicknames in the residential area, according to his experience. It was suggested to the arresting officer that he failed to inform the Plaintiff of the allegations he was facing. However, the arresting officer maintained that he did advise the Plaintiff of the charges against him.
In their quest to discharge the onus of proof, the Defendants also relied on the evidence of Sergeant Nompendulo Qwede (the investigating officer). She testified that upon the Plaintiff’s arrest, she charged him with attempted murder on 07 December 2019. In a later instance, the case was subsequently withdrawn after the Public Prosecutor consulted with witnesses. When asked why the case was withdrawn, the investigating officer testified that the complainant had lost interest in the matter. With this evidence, the Defendant closed his case.
The Plaintiff gave testimony that on the day of his arrest, he was busy with his braai at the car wash, minding his own business. He stated that he was chatting with a certain gentleman when another man approached and asked for the car keys to the vehicle he was driving. Following this, he was suddenly handcuffed by another man when the second man took the car keys. They all drove off to Cambridge Police Station.
Upon arrival, he was caused to stand outside of the car. The police officers took his belongings and put them on the trailer of his car. One of the officers asked him to produce the firearm he had used to shoot Bridge. He informed them that he did not know who Bridge was, to which the police asserted that Bridge was one of his friends. Police asked if he knew Lelethu, and he informed them that Lelethu was his neighbour who worked at Boxer Supermarket. They all drove to Boxer Supermarket. Police entered the Supermarket leaving him in the car, and he was later taken back to the police station. Plaintiff testified that police repeatedly questioned him about a firearm that he claimed to be unaware of.
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He was then detained and kept in police cells with two other young men unknown to him. When questioned whether he knew the other young men, he answered in the negative. When police, considering their knowledge, informed him that he was working with the young men at a taxi rank, he confirmed recognising them by sight. The other young man, who was identified as Lelethu, confirmed that he knew the Plaintiff. They were then informed that they had attacked Bridge. He did not respond to the allegations. In his testimony, the Plaintiff testified that, the following day, they were charged, fingerprints were taken, and they were given certain papers and advised that they would appear in court at a later stage.
On the following Monday, 09 December 2019, they were offered soap to bathe and some meals. A police van came and took them to court. He then spotted Bridge in the court cells. Bridge was singled out from that group, and he was advised that Bridge had caused his arrest. The Plaintiff testified that he was advised to apply for bail. On 02 January 2020, they were granted bail of R1000 00 each (One Thousand Rand only). On 20 March 2020, the case was withdrawn against him. Asked why the...
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