Tomodi v Minister of Police

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Reddy AJ
• Judgment Date: 15 September 2023
• Citation: 2023 JDR 3500 (NWM)
• Hearing Date: 06 June 2023
• Docket Number: 2351/19
• Court: North West Division, Mahikeng

Reddy AJ:

Introduction

[1]

The plaintiff instituted a delictual action against the defendant, the Minister of Police, pursuant to his warrantless arrest, for his unlawful

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arrest and detention from 10 January 2019 to 14 January 2019. The action was defended. By virtue of an order of court, the merits and quantum were separated. On 9 February 2023, the following orders were made:

(i)

The defendant is 100% liable for all the agreed and or proven damages of the plaintiff.

(ii)

The quantum proceedings are postponed to a date to be determined by the Office of the Registrar in conjunction with the Office of the Judge President,

(iii)

The defendant is ordered to the pay the costs of the suit on a party and party basis on the High Court Scale.

[2]

Having been seized with the deliberation of liability, it would be prudent to provide a broad factual matrix, preceding the introduction of the evidence on quantum presented by the plaintiff and defendant.

[3]

On 10 January 2019 at about 20h50, a complaint was received regarding an allegation that a crime of malicious damage to property had been allegedly committed. This resulted in the plaintiff’s arrest. After the arrest of the plaintiff, he indicated that hot water had been poured on his person by Nkobeng (the complainant in the malicious damage to property case). I found that plaintiff was unlawfully arrested and detained for the period 10 January 2019 to 14 January 2019.

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[4]

Further thereto, I was singularly unimpressed with collective evidence of the employees of the defendant, which was accented in my judgment, on liability where the following was penned:

[24]

“The collective evidence of the defendants’ witnesses were of an unconvincing tenure. In the assessment of the evidence, it proved an extremely difficult task to formulate a proper mosaic of proof on which the reasonable suspicion of Mogotsi was founded. Given the two grounds that Mogotsi relied on to effect the arrest, he could not have formed a reasonable suspicion. In addition, the defendant’s witnesses’ evidence were littered with improbabilities coupled with a penchant for intentionally concealing material facts from ventilation. This stance would have no doubted effected the bona fides of a reasonable suspicion, assuming such existed. . . .”

[5]

I then proceed to justify the conclusions that were arrived at. Crucially, which is intertwined to the issue of quantum, I factually found:

“(ii)

It is indisputable that boiling water was thrown at the plaintiff. This fact as per the case of the defendant was mentioned on the scene and in a written statement made later that evening by Nkobeng. . . .”

Quantum

[6]

The plaintiff was 31 years old, at the time of his arrest and resided at Huhudi, Vryburg. He was a bachelor, with two children, one of which had passed on. The highest level of education that he attained was Grade 10. The arrest of the plaintiff was executed in the presence of his mother. The manner of his arrest, caused him to feel that he was not part of the “world.” A request for medical intervention

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was declined by the police officers. The police officers retorted that “nothing had happened to him”

[7]

At Huhudi SAPS, the plaintiff was thrown with twenty (20) litres of cold water. He was placed on a truck wherein he waited for a period. Thereafter he was transferred to the back of a police van. The police van was driven to a petrol station to purchase luxuries. From the petrol station, the plaintiff was transported to Pudimoe SAPS, which was approximately fifty (50) to sixty (60) kilometres away.

[8]

At Pudimoe SAPS, the plaintiff beseeched the police officers for medical assistance. The plaintiff indicated he was “feeling the heat” from his wounds, which included blisters on his face which oozed “liquid.” Regarding his detention, the plaintiff was held in a cell which was four (4) metres by three (3) metres, with six (6) other detainees. These detainees confiscated an amount of R50-00, other detainees sought cigarettes from him, but the plaintiff could not acquiesce, as his cigarettes were wet.

[9]

No proper provision was made for him to sleep. There was no mattress. Resultantly the plaintiff had to sleep on the floor. A blanket had to be shared with an inmate who was described as “insane.” The sleeping arrangements had a negative effect on his injuries, as the plaintiff had no clothing which covered his upper body. The covering of his upper body with a blanket caused blisters which “leaked”.

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[10]

There was no privacy when the latrine facility was in use. The sleeping area and latrine were not separated. There was no proper access to water, no reading material nor was there any entertainment.

[11]

On 14 January 2019, whilst at the holding cells at court, a police officer called colleagues from Huhudi SAPS to take the plaintiff to the clinic. The entire experience had a negative effect on him.

[12]

The three witnesses that the defendant called on quantum, more pertinently focussed on the date on which the plaintiff had received medical treatment. These witnesses were honest witnesses and did not attempt to amplify or embellish their evidence. In the final analysis these witnesses’ evidence did not add to the dispute, given the findings on the documentary evidence on liability that the plaintiff had not been afforded medical attention on 14 January 2019.

Plaintiff’s submissions

[13]

Mr Maree for the plaintiff submitted that against the backdrop trite authorities, the following factors deserve emphasis:

(i)

The way the plaintiff was arrested.

(ii)

The conditions under which the plaintiff was detained.

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(iii)

The plaintiff was detained whilst suffering from excruciating burn wounds without receiving medical attention.

(iv)

The plaintiff’s experience whilst being detained.

(v)

The inadequate and inhumane sleeping arrangements in the cells.

(vi)

The negative view the community holds of the plaintiff after his arrest and detention.

(vii)

All other circumstances in this matter, and

(viii)

The flagrant disregard of the plaintiff’s constitutional rights.

[14]

Mr Maree submits:

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