Opulent Lesiba Molopa v Minister of Safety & Security
| Jurisdiction | South Africa |
| Judge | Lacock J |
| Judgment Date | 01 June 2012 |
| Docket Number | 58034/2008 |
| Court | North Gauteng High Court, Pretoria |
Lacock, J:
The plaintiff, a 32 year old male, residing in Atteridgeville, Pretoria, and employed as a judge's clerk at the High Court, Pretoria, had a summons issued against the first and second defendants for payment of an amount of R2.5 million in respect of damages allegedly suffered by reason
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of his unlawful arrest and detention and being unlawfully assaulted by members of the South African Police Service (SAPS). The first defendant is the Minister of Safety and Security, and the second defendant was at all relevant times the investigating officer in respect of an armed robbery and murder case investigated by SAPS under police docket CAS 44/057/2007. Both defendants denied liability for payment of the damages claimed.
At the commencement of the trial and at the request of counsel for all parties, I ruled that the trial will proceed on the issue of liability only, and that the question of damages be separated for later determination if necessary.
The following factual circumstances were not in dispute:
During the evening of 2 May 2007, a certain Mr Feng was robbed and fatally wounded at this home in St Andrew's Street, Edenvale. During the robbery gun shots were exchanged between Feng and the robbers. During this encounter one of the robbers, know as Surprise, was shot and removed to the Thembisa Hospital for treatment. He did not survive the gunshot wound and died in hospital.
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Lacock, J
During the, same evening of 2 May 2007, a cousin of the plaintiff, one Gideon, was hospitalized and treated for a gunshot wound at the said Thembisa Hospital.
Subsequent to Gideon's admission to Thembisa Hospital, the plaintiff, Mr Howick Mashaba Molatedi (Mashaba) and one Bridgitte (also a cousin of Gideon), arrived at the said hospital in a Volkswagen Citi Golf vehicle. Only the plaintiff was allowed to see Gideon.
On 3 May 2007 Gideon discharged himself from the Thembisa Hospital. The police were unable to locate Gideon after he had left the hospital.
At approximately 02:00 on 15 May 2007 a number of police officials arrested Mashaba at his home in Atteridgeville and ransacked his abode in search of a firearm. They did not find a firearm.
At approximately 03:00 on the same day the aforesaid police officers and Mashaba arrived at the home of the plaintiff in Atteridgeville where he lived with his parents. Here the plaintiff was arrested and held in custody by warrant officer Beneke of SAPS whilst the other members of SAPS searched the
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plaintiff's house for firearms. No firearm was found. No warrant of arrest or a search warrant was issued in respect of these police actions.
The plaintiff and Mashaba were taken to the Wierdabrug police station where they arrived at approximately 05:00 that morning.
At approximately 11:10 the same morning the plaintiff and Mashaba were removed by a police official, one Khumalo, and the second defendant respectively to the Edenvale police station in Edenvale.
On the instructions of the plaintiff's mother, attorney Mkhabela went to the Edenvale police station on 15 May to see the plaintiff. Although Mr Mkhabela arrived at the said police station at approximately 15:30, he was only allowed to see the plaintiff at about 20:00. He immediately noticed that the plaintiff was seriously injured, and he arranged with the station commander to have the plaintiff taken to a hospital and to assist him to lay a charge of assault against the people, who allegedly assaulted the plaintiff. These requests were however ignored.
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Lacock, J
During the early hours of 16 May 2007, the second defendant and Khumalo removed the plaintiff from his holding cell at Edenvale police station. They went to the home of Gideon in Centurion as pointed out by the plaintiff, but no one was at home at this address. From there the plaintiff took them to Gideon's mother's house, his sister's house and the house of Gideon's girlfriend, Phepha, but they were unable to locate Gideon.
On the same day (16 May) attorney Mkhabela addressed a letter to SAPS at Edenvale, the contents whereof read,
"RE: S V OPULENT LESIBA MOLOPA
The above matter has reference.
We confirm having visited at Edenvale Police Station instant regarding the murder charges that our client is facing.
Our client was assaulted by members of the South African Police Services during and after his arrest.
One of the assaulting officers is personally known to him as Godfrey and can be easily pointed out during an identification parade.
We humbly request that he be taken for medical observation and a proper 188 Medical Report be compiled.
We also request that you assist our client in opening a criminal charge of assault with intent to do grievous bodily harm.
We trust you find the above in order.".
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Lacock, J
On 17 May 2007 the plaintiff was taken to the Regional Court, Germiston, where he was officially charged for inter alia robbery and murder. The case was remanded to 24 May 2007.
After the case was postponed, the plaintiff was taken to the Boksburg Correctional Centre, but was refused admission because of his injuries. He was again taken to Edenvale police station where he was locked into a holding cell.
On 18 May 2007 the plaintiff was taken by the police to Thembisa Hospital where he received some pills and ointment for his eyes. From here the plaintiff was taken again to the Boksburg Correctional Centre where he was admitted to the prison hospital. He was treated and remained in this hospital for approximately three months.
On 31 May 2007 the plaintiff and Mashaba brought a bail application before the Germiston Regional Court. Both were represented by counsel. The plaintiff and Mashaba testified; and the second defendant testified on behalf of the State in its opposition to the application. Bail was refused.
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Lacock, J
Following upon a successful appeal against the aforesaid refusal of his application for bail, the plaintiff was released from custody on 26 October 2007.
Twelve (12) days later, on 7 November 2007, all charges were dropped against the plaintiff.
In their plea the defendants denied that the plaintiff was assaulted by members of SAPS as alleged in the particulars of claim, and further pleaded that the arrest of the plaintiff was lawfully effected in terms of section 40(1)(b) of the Criminal Procedure Act of 1977 (the CPA).
Adv van Niewenhuizen SC, on behalf of the defendants, conceded that, should it be found that the arrest of the plaintiff was unlawful, it follows that his detention from the time of his arrest till the date on which bail was refused, was likewise unlawful.
The defendants deny any liability for the time the plaintiff was incarcerated since the date on which bail was refused by the regional magistrate. It is submitted that the dismissal of the application for bail was a judicial function performed by the presiding magistrate, and no fault can be attributed to the
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defendants for any wrongful exercise of such discretion by the magistrate.
It is common cause that the onus of proving the alleged assault rests on the plaintiff, whilst the onus to prove the lawfulness of the arrest and detention rests on the defendants. See MINISTER OF LAW AND ORDER AND OTHERS v HURLEY AND ANOTHER 1986 (3) SA 568 (A) at 589 E to F. I will deal separately hereunder with the question of onus in respect of the plaintiff's detention following upon the refusal of bail.
It is further common cause that the second defendant at all relevant times for purposes of this case was an employee of the first defendant and acted within the course and scope of his employment as such.
I shall first deal with the alleged assault.
The plaintiff testified that at about 03:00 in the morning on 15 May 2007, approximately 11 members of SAPS came to his house and after gaining entry, demanded him to hand over his firearms and further wanted him to disclose the whereabouts of Gideon. The police refused to accept his explanation that he did not possess a firearm and did not know where Gideon is, whereafter they searched his
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(parental) home for firearms, tied his hands behind his back and took him to a nearby piece of deserted open veld where he was severely assaulted. He testified that he was suffocated with a plastic bag over his head, slapped and kicked, and that he was threatened that his private parts would be cut off with a bolt cutter, and that he would be shot. All the time while the plaintiff was assaulted, and which assault lasted for about one hour, the police wanted to know where Gideon was and where the firearm was.
The plaintiff's evidence of this assault was corroborated by Mashaba who was present and witnessed the entire event.
Further uncontested corroboration of the assault on the plaintiff is to be found in the evidence of attorney Mkhabela who testified that when he visited the plaintiff at the Edenvale police station on 15 May 2007, the latter was seriously injured.
Warrant officer Beneke testified that he was present when Mashaba and the plaintiff were arrested at their respective homes, but denied that either Mashaba or the plaintiff was assaulted by the police as alleged. He further .testified that the plaintiff, when arrested, had no visible injuries on his person.
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Lacock, J
Ms van Niewenhuizen conceded, correctly so, that particularly in view of the evidence of attorney Mkhabela, no inference can be drawn other than that the plaintiff was assaulted by members of the SAPS in the...
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