Woite v Minister of Safety and Security

• Jurisdiction: South Africa
• Judge: TL Mosikatsana AJ
• Judgment Date: 11 April 2014
• Docket Number: 08/00091
• Court: South Gauteng High Court, Johannesburg
• Hearing Date: 14 March 2014
• Citation: 2014 JDR 0891 (GSJ)

Mosikatsana AJ:

Introduction

[1]

Plaintiff was a control prosecutor at the time of his arrest. He is a frail man in his sixties. He has suffered from a movement disorder termed 'essential tremors' since he was thirty-years-old. He claims damages in the amount of R500, 000.00 for an alleged assault, wrongful arrest and detention by members of the South African Police Service (SAPS) in the employ of the defendant on 21 July, 2007.

[2]

It is common cause that on or about 20 July, 2007 at approximately 24h00, the Plaintiff's son, Vernon was arrested at a roadblock in Roodepoort, by the Johannesburg Metropolitan Police. Following his arrest, he was taken to Honeydew police station for processing. The Plaintiff attended with his other son Jacques, at the Honeydew police station, to secure his release. When plaintiff arrived at the police station, there was an altercation which led to his arrest by Inspector (Insp) Banda, with the assistance of Sergeant (Sgt) Chauke. It is also common cause, that plaintiff was arrested and detained at approximately 03h00 on 21 July, 2007. He was released after about thirteen hours at 16h00 the same day. It is further common cause that the Director of Public Prosecutions declined to prosecute the charges against the plaintiff.

[3]

The defendant pleads that plaintiff was lawfully arrested in accordance with ss 40(1)(a) [1] of the Criminal Procedure Act [2] based on plaintiff's disorderly and violent conduct.

Factual Background

[4]

The parties presented conflicting versions of what transpired on the day in question. The plaintiff's narrative is that when he arrived at the honeydew police station, he saw his son Vernon handcuffed uncomfortably with his hands to his back. He noticed that Vernon was experiencing excruciating pain, from the tight cuffs. He asked Insp Banda to relax the cuffs. Insp Banda said that he did not have the keys. After approximately 10 minutes, Insp Banda took out a set of keys and removed the cuffs.

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[5]

Vernon told plaintiff that he was assaulted by a lady in civilian clothes. He pointed out the lady to the plaintiff, who then asked the lady to identify herself, because he wanted to report her. The lady refused to identify herself. Plaintiff took out his cell-phone, to take her picture so that he could identify her, when he made his report. Insp Banda intervened. He informed plaintiff that he was not allowed to take pictures inside the Honeydew community service centre (CSC).

[6]

Insp Banda grabbed plaintiff's hand with the cell-phone in it. He wrestled plaintiff for the phone, to prevent him from taking pictures. Insp Banda used his one hand to hold plaintiff's hand with the cell-phone and used his other hand to push plaintiff towards the door of the CSC. Insp Banda then pushed plaintiff forcefully against the window. Plaintiff bumped into the window and wall of the CSC from the force of being pushed by Insp Banda. The window broke in the process. Plaintiff sustained injuries to the right hand side of his body, in the area of his ribcage. Plaintiff's spectacles were damaged during the alleged assault by Insp Banda. Plaintiff testified that when his son Jacques picked up the broken spectacles from the floor one lens was missing.

[7]

Insp Banda handcuffed plaintiff and charged him with resisting arrest, assaulting a police officer and malicious damage to property. Plaintiff was read his rights. He was also given a 'Notice of rights in terms of the Constitution' to sign. He was taken to the Randburg Police cells for detention at approximately 03h00 on 21 July, 2007. He was released thirteen hours later at approximately 16h00.

[8]

Plaintiff testified that during his detention he could not sleep because he was scared of his cell-mate. The blankets in the cell were dirty and it was cold. He testified that he could not drink the water in the cell because the place was dirty, he only drank water in the morning during breakfast.

[9]

The plaintiff testified that he is the primary caregiver to his sickly wife, and that during his detention, he was concerned for her welfare, as she had no one else to care for her. Plaintiff stated that he suffered humiliation due to the fact that he had to appear in the Randburg Magistrate's Court to face his colleagues and explain his appearance on criminal charges of resisting arrest, malicious damage to property and assault on a police officer. Plaintiff testified that he also suffered anxiety at the

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prospect of enduring the hardship of a possible criminal trial and conviction leading to a custodial sentence without the option of a fine on spurious charges.

[10]

Plaintiff was medically examined by Dr Geldenhuys two days later, on 23 July, 2007. The doctor testified in chief, that he was informed by the plaintiff that he was assaulted by police. During the medical examination of plaintiff, the doctor suspected rib fracture and recommended x-rays for the plaintiff. During cross examination, Dr Geldenhuys testified that similar injuries could be sustained in a struggle. It was revealed in cross examination that Dr Geldenhuys' report did not bear the date of the plaintiff's medical examination.

[11]

Vernon corroborated plaintiff's testimony in material respects with regard to the fact that he was assaulted by a female in private clothes in full view of other police officers, and that Insp Banda cuffed him incongruously, such that plaintiff intervened on his behalf, by asking Insp Banda to uncuff him. Vernon testified that Insp Banda initially stated that he did not have the keys for the cuffs, but ten minutes later he took out the keys for the handcuffs and released the pressure of the cuffs. Contrary to what plaintiff had said, Vernon testified that Insp Banda did not remove the handcuffs but that he only released the tightness of the handcuffs.

[12]

Vernon also testified that plaintiff asked the female in civilian clothes, who had assaulted him, to identify herself, but she refused. Plaintiff then attempted to take a picture of the female but he was prevented from doing so by Insp Banda.

[13]

Vernon further testified that he was not present in the CSC, when his father was allegedly assaulted, arrested and detained. He was being transferred to the Roodepoort police cells, when his father was involved in a struggle with Insp Banda. He only heard a window break when he was being loaded into the police van outside the CSC.

[14]

The only inconsistency between the plaintiff's and Vernon's version is that the plaintiff testified that Insp Banda had removed the handcuffs from Vernon. And yet Vernon testified that Insp Banda had relaxed the cuffs. The inconsistency is not material.

[15]

Jacques also corroborated plaintiff and his brother vernon's testimonies in most material respects. He testified that when he arrived at the Honeydew Police Station with his father, he saw his brother handcuffed in 'a funny way'. Vernon told

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him and plaintiff while he was still inside the room where Vernon was held, that he was assaulted by a lady in private clothes. Jacques testified that he was then ordered out of the room where Vernon was held. Resultantly, he didn't observe Insp Banda remove the cuffs from Vernon. However, he...