Nokeke v Minister of Safety and Security

• Jurisdiction: South Africa
• Judge: Plasket J
• Judgment Date: 09 May 2008
• Citation: 2008 JDR 0512 (Tk)
• Docket Number: 1089/07
• Court: Transkei Division

Plasket J:

[1] The plaintiff, Ms Bolekwa Nokeke, sues the defendants on three causes of action arising from the same set of circumstances. She claims that, on 31 January 2007, she was unlawfully assaulted by the second defendant, Inspector Mlamli Jara, a member of the South African Police Service, that he arrested and detained her unlawfully and that he insulted and threatened her in such a way as to infringe her dignity.

[2] Inspector Jara and the first defendant, the Minister of Safety and Security, deny the assault and the insult but plead that the arrest and subsequent detention of the plaintiff were lawful, the arrest having been effected pursuant to a warrant of arrest.

[A] THE PLEADINGS

[3] Claim A is the claim arising from the alleged assault. The plaintiff's particulars of claim state that on 31 January 2007 'at the offices of the Department of Social Development, Botha Sigcau Building, Mthatha ... the plaintiff was wrongfully and unlawfully assaulted by the second defendant in that he got hold of her and struck her with an open hand in the face'. The particulars of claim proceed to allege that the assault occurred 'within sight of the plaintiff's colleagues and members of the public that were present at the plaintiff's place of work'. The effect of the alleged assault was that the plaintiff 'experienced moderate pain that lasted for some minutes after the assault and suffered contumelia'. She claimed R20 000.00 in damages for the pain and R130 000.00 for contumelia.

[4] The defendants' plea in respect of the assault itself reads:

'Defendants specifically deny that the plaintiff was wrongfully and unlawfully assaulted by the second defendant in any manner whatsoever or as alleged. It is further specifically denied that second defendant ever struck her with an open hand on the face or at all. Plaintiff is put to the proof thereof. When being arrested plaintiff offered

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unlawful resistance and both second defendant and Constable Robiyana forcibly took her away despite her resistance.'

[5] In a later paragraph the defendants re-iterated that the 'only necessary and reasonable amount of force applied against plaintiff was when she resisted lawful arrest until she was overcome with the aid of Constable Robiyana'. It was denied that she experienced the moderate pain alleged by her, that she suffered any contumelia and, consequently, that she suffered any damages.

[6] Claim B is the claim based on impairment of the plaintiff's dignity 'and/or contumelia' arising from allegedly being insulted and threatened by Inspector Jara. The particulars of claim, in their original form, formulated this claim as follows:

'On the date and at the place mentioned in paragraph 3 above the second defendant wrongfully and with intent to injure the plaintiff said to the plaintiff "Uzakunya. Ndizakufundisa isifundo", a rough translation of which is, "You are going to shit. I am going to teach you a lesson".'

It was stated that this was said within sight and hearing of those who had witnessed the alleged assault. Damages in the amount of R150 000.00 was claimed 'in respect of the impairment of her dignity and/or contumelia'.

[7] After the plaintiff had testified - and given a different version as to where this incident was alleged to have occurred - Mr Mbenenge who, together with Ms De Silva, appeared for the plaintiff - applied to amend the particulars of claim. The amendment was not opposed by Mr Dilizo, who appeared for the defendants. It brought the pleadings into line with the plaintiff's evidence that she was insulted by Inspector Jara when he, she and Constable Robiyana were travelling by car to the Mthatha Central Police Station, and not at the Botha Sigcau Building. The amendment, which I granted, removed the words 'and at the place' where they appeared in paragraph 8 and altered paragraph 9 to read: 'This took place within sight and hearing of one person.'

[8] The defendants denied that Inspector Jara 'wrongfully and with intent to injure the plaintiff uttered the words herein quoted or any words to that effect'.

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They stated further that although 'there were people present when effecting [a] lawful arrest upon the plaintiff, it is specifically denied that any insults as alleged were ever uttered at any given stage'.

[9] Claim C is the claim based on the alleged unlawful arrest and detention of the plaintiff. For reasons that will become clear in due course, I shall set out the plaintiff's particulars of claim in detail in respect of claim C. Paragraph 12 of the particulars of claim reads:

'12.1

On the date and at the place mentioned in paragraph 3 above the plaintiff was arrested without a warrant by the second defendant.

12.2

Alternatively and in the event of it being found that the plaintiff was arrested pursuant to the warrant purportedly issued by the Magistrate, Mqanduli on 31 January 2007, which is in any event denied, then only in that event, the plaintiff contends that the warrant was executed without compliance with the provisions of sections 43 and 44 of the Criminal Procedure Act, 1977 (Act 51 of 1977) (the Act), more particularly in the following respects:

12.2.1

The warrant appears to have been applied for and issued at Mqanduli, yet it is common cause that the plaintiff was arrested at Botha Sigcau Building in the district of Mthatha.

12.2.2

The warrant directs the peace officer executing same to arrest the plaintiff and bring her before a lower court in accordance with the provisions of section 43 of the Act, as indeed section 43(2) of the Act authorizes the arrest of the person concerned and the bringing of the person "before a lower court", yet the plaintiff was, upon her arrest, detained at Mthatha Central Police Station.

12.3

Further alternatively, and in the event of it being found that the warrant was executed properly in terms of sections 43 and 44 of the Criminal Procedure Act, 1977, which is in any event disputed, then only in that event, the plaintiff contends that the warrant was executed improperly and/or unlawfully, more particularly in that the

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police who executed the same did not act strictly within the terms of the warrant, in that the warrant authorized him to arrest the plaintiff in Mqanduli yet the arrest of the plaintiff was effected at Botha Sigcau Building, Mthatha.

[10] Paragraph 13 of the particulars of claim states that after her arrest, the plaintiff 'was detained at Central Police Station, Mthatha at the instance of the second defendant and/or various other members of the South African Police Service whose names, ranks and other particulars are unknown to the plaintiff. She was released on bail on the following day upon appearing in Court'. It was alleged, and not disputed, that the police officers involved were all acting within the course and scope of their employment. An amount of R200 000.00 was claimed in respect of Claim C.

[11] The defendants' plea to Claim C was to the following effect. First, they denied the allegation that the plaintiff was arrested without a warrant. They pleaded that 'the the plaintiff was arrested on the strength of a duly issued warrant of arrest which was displayed to her at the time of the arrest'. In answer to paragraph 13 of the particulars of claim - the allegation that the plaintiff was detained at the Mthatha Central Police Station - the defendants, after stating that the contents of this paragraph were 'noted', pleaded that the plaintiff 'was detained on the date in question and she had no visible injuries during detention'. They denied that she suffered damages in the amount claimed or at all.

[12] When the plaintiff requested particulars for trial, the information thus elicited was that the plaintiff was arrested on a charge of fraud, the warrant was applied for on 31 January 2007 by a Mr Mhlontlo, a public prosecutor, and it was issued by a Mr Mkhango, a magistrate from Mqanduli.

[13] In the first rule 37 conference held by the parties, the following is recorded:

'The defendants concede that, in the event of the arrest of the plaintiff not having been by virtue of a warrant of arrest, the arrest would have

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been unlawful. The defendants' legal representative thereafter produced and handed over to the plaintiff's legal representatives a document which, on the face thereof, purports to be embodying an application under section 43 of Act 51 of 1977 for a warrant of arrest and the warrant itself purporting to have been issued by a "Magistrate/ Justice of the Peace". The plaintiff's legal representative thereupon undertook to revert to the defendants' legal representative regarding the authenticity or otherwise of the document.'

[14] In the second rule 37 conference, reference was made to the plaintiff amending her particulars of claim and the defendants amending their plea in consequence, both by particular dates. The latter amendment takes the form of two pleadings both headed 'Consequential Adjustment of Defendants' Plea'.

[15] In these pleadings the defendants plead that the warrant was properly executed in accordance with s 43 and s 50 of the Criminal Procedure Act 51 of 1977 in that 'it was effected in accordance with the statutory provisions of the Act' and the 'object of arrest was complied with in that plaintiff was arrested and detained at Central Police Station at 16h18 on 31 January 2007 and subsequently brought before court on the next court day at Mqanduli Magistrate's Court'.

[16] Furthermore, it was pleaded that 'the manner of execution ... did not affect the legality of the arrest' and nor did it 'convert an initially lawful arrest into an unlawful one'. It was pleaded that, although the warrant was applied for and issued in the district of Mqanduli, because that is where the offence alleged was committed, 'it is immaterial where the arrest is...