Damon v Minister of Police (308/2015) [2020] ZANCHC 40 (25 June 2020)

Reportable:

YES/NO

Circulate to:

YES/NO

Circulate to Magistrates:

YES/NO

Circulate to Regional Magistrates : YES/NO

IN THE HIGH COURT OF SOUTH AFRICA

NORTHERN CAPE DIVISION, KIMBERLEY

Case No:

308/2015

Dates Heard: 08/09 & 10/10 & 18/11/2019

Date Available:

25/06/2020

In the matter between:

MARTIN ALISTAIR DAMON

Plaintiff

and

MINISTER OF POLICE

Defendant

Coram: Dauds, AJ

JUDGMENT

DAUDS AJ

[1] Summons in this matter was issued on 19 February 2015. According to the facts pleaded in his Particulars of Claim, the Plaintiff was arrested on 03 March 2012 and detained at the Nababeep Police Station, Namaqualand, Northern Cape. The Plaintiff pleaded that during his detention, he was assaulted in the holding cell at the police station by a fellow detainee who was at the time unknown to him, but later became known as Eric Cloete. The Plaintiff pleaded further that despite calls for help to the police officers while he was being assaulted, none came to his assistance. As a result of the assault, according to the Plaintiff, he sustained

serious injuries for which he had to undergo medical treatment and a neck operation at the Kimberley Provincial Hospital on 05 March 2012. The Plaintiff pleaded further that the conduct of the police officers, in not responding when he called out to them for help while he was being assaulted by the fellow detainee, was unlawful and/or negligent. According to the Plaintiff, he sustained serious neck and spinal injuries, and was humiliated and his dignity impaired, he also suffered shock and post-traumatic stress. According to him, in addition he suffered loss of amenities of life, disability, pain and discomfort as well as emotional trauma all of which will probably continue into the future. For all this the Plaintiff claims from the Defendant R250,000.00 for past medical and related treatment, Rl00,000.00 for future medical and related treatment, RS0,000.00 for past loss of earnings, Rl,700,000.00 for future loss of earnings, RS00,000.00 for general damages related to pain and suffering, loss of amenities of life, disability and shock, and R200,000.00 for unlawful arrest. The claim was thus for a total amount of R2,800,000.00.

[2] What was odd about the monetary claim for unlawful arrest is that this was not pleaded by the Plaintiff in his Particulars of Claim. According to rule 18(4), every pleading shall contain a clear and concise statement of the material facts upon which the pleader relies for his claim with sufficient particularity to enable the opposite party to reply thereto. This the Plaintiff did not do in so far as the claim for unlawful arrest is concerned. And while the Plaintiff testified about the unlawfulness of his arrest, this Court does not believe it was proper for the Plaintiff to attempt to correct his failure to plead the issue of unlawful arrest by simply testifying thereon. A second attempt was made by the Plaintiff to correct his failure to plead the unlawful arrest issue. This was done after all the evidence was heard and after Mr Visagie for the Defendant pointed this defect out in his argument to the Court. The Plaintiff attempted to correct the defect by delivering a Notice to Amend his Particulars of Claim, but this attempt ended up dead in the water since after almost six months of delivery of the Notice to Amend, no application was brought for leave

to amend in the face of the Defendant's objection to the Plaintiff's proposed amendment. This Court made a ruling in that matter by dismissing it with costs. For the above reasons, the Plaintiff's claim for unlawful arrest cannot stand.

Background facts

[3] The Plaintiff alleged that he was arrested on 03 March 2012 and detained at the Nababeep Police Station, Springbok, Northern Cape Province. During his detention the Plaintiff was allegedly assaulted by a fellow detainee who was at the time unknown to him, and as a result of which the Plaintiff sustained injuries and had to receive medical treatment at the hospital in Springbok and later at the Kimberley Provincial Hospital. According to the Plaintiff, the injuries affect him to this day. The Plaintiff alleged further that he sustained the injuries as a result of the unlawful and/or negligent conduct of the defendant's employees, members of the South African Police Service.

[4] On 25 August 2015 a Special Plea and Plea on the merits were filed on behalf of the Defendant to the Plaintiff's summons and Particulars of Claim. In the Special Plea, the Defendant took the point that the Plaintiff failed to comply with section 3(2) of the Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002 in that the Plaintiff failed to serve the requisite Notice on the Defendant within 6 months of the date of the cause of action. This objection compelled the Plaintiff to bring an application for condonation, and on 14 July 2017 the Court made an order condoning the Plaintiff's non-compliance with section 3(2) of Act 40 of 2002.

[5] On 04 October 2019 the Defendant filed an amended Plea. Based on the parties' pleadings, it was common cause that the Plaintiff was arrested on 03 March 2012 by members of the South African Police Service and detained at the Nababeep Police Station. It was further common cause that during his detention the Plaintiff was assaulted by a fellow detainee who later became known as Eric Cloete, and was separately arrested by members of the South African Police Service stationed at the Nababeep Police Station, but

detained in the same holding cell as the Plaintiff .

[6] The parties agreed to separate the merits of the matter, in particular, the issue of liability, from the issue of quantum of damages. As a result, the first part of the trial proceeded in respect of the merits of the Plaintiff's claim only.

The evidence

[7] The Plaintiff testified in his own cause. He testified that he lives in the residential area Bergsig in Springbok and hitch-hiked to another residential area called Groenkloof also in Springbok to enquire about his furniture from one Joshua Losper who was an acquaintance or friend of his. Losper apparently repairs furniture and the Plaintiff's furniture had apparently been with him for a while for purposes of repair. The Plaintiff testified that he left home to go to Losper's residence at around 3pm in the afternoon. Between 12pm and 2pm he and a friend enjoyed some wine. According to the Plaintiff, he had two glasses of what he called "cheap" wine.

[8] When he arrived in Groenkloof he did not find Losper in, only his son whom he told he was there to collect his furniture. Losper's son said his father was not in, upon which the Plaintiff then said that he would wait for Losper senior. The son apparently became impatient with him and said that he would call the police to have him removed from the premises. According to the Plaintiff, he heard the son actually call the police from his cellphone. The Plaintiff said he stood his ground, but eventually relented and left the Losper residence before the police arrived.

[9] According to the Plaintiff, on his way back home on some sand road not far from Groenkloof he came across the police. By this time it was apparently around 5pm in the afternoon. The Plaintiff said he asked the 3 police officers who arrived in a police van if they could take him home. They apparently said to him he should first accompany them to the Nababeep Police Station. He accompanied the police officers to the police station. There he was apparently asked what he was doing in Groenkloof. According to him, he told the police officers that he went to Joshua Losper to enquire about his furniture, and that Losper himself was not at home but rather his son. He said he told the police officers that he then left the Losper residence. According to him, he told the officers that they do know him and asked them to take him home. Instead he was arrested and locked up in one of the holding cells at the police station.

[10] In the holding cell, according to the Plaintiff, he came across two young men who appeared to him to be students. He had some casual conversation with them. Later they were joined in the cell by another gentleman who, it later turned out, had been arrested for unruly behaviour. According to the Plaintiff, the unruly behaviour of this person, who later became known as Eric Cloete, continued in the holding cell. First, he apparently, without provocation, assaulted the two young gentlemen he found in the cell upon arrival. Later Cloete apparently turned on the Plaintiff and assaulted him too - also without provocation.

According to the Plaintiff, Cloete held him tight around the neck in what he called a "vice grip". He apparently held the Plaintiff there while the Plaintiff was trying to attract the attention of the police officers at the police station by screaming for help. According to him, no help was forthcoming. Eventually Cloete released his grip and the Plaintiff fell to the floor where, according to him, he remained all night until the next morning when a cell visit was carried out by the police, and he was found on the floor. The Plaintiff testified that he had remained on the floor all night because he could not move his body. Upon realising his condition, the police summoned an ambulance. The ambulance attendants first stabilised the Plaintiff, then placed him on a stretcher and took him to the waiting ambulance that drove him to the hospital in Springbok approximately 25 kilometres away, which

was apparently a 30-minute drive from the police station. There the Plaintiff was examined by Dr EH Boer who arranged that he be

transported to the Kimberley Provincial Hospital for further examination and treatment.

[11] During cross-examination, Mr Visagie who represented the Defendant put it to the Plaintiff that he was arrested and detained because he was, as it were, hopelessly drunk. The term used by Mr Visagie was "smoordronk". The Plaintiff replied that while he had enjoyed two glasses of wine at home with a friend between 12pm and 2pm before hitch-hiking to the Losper residence in Groenkloof at 3pm to enquire about his furniture, he strongly denied that he was hopelessly drunk or "smoor drank". Under cross-examination the Plaintiff said that as far as he knew, the person who assaulted him in the police holding cell, Eric Cloete, was charged by the police for his assault on the Plaintiff. The Plaintiff said that he had heard that Cloete was convicted of the assault, although the Plaintiff himself was never called to testify in the criminal matter. This version of the Plaintiff's evidence was not contested.

[12] Mr Visagie further put it to the Plaintiff that in accordance with standard procedure, the police officers on duty were required to visit the holding cells every half hour, which was, according to Mr Visagie, also done during the Plaintiff's detention. The Plaintiff denied that cell visits were conducted every half hour. According to the him, no cell visits were conducted at all during his detention until the following morning when he was found on the floor of the holding cell. Mr Visagie put it to the Plaintiff that even if he had screamed to the police officers in the charge office for help while he was being assaulted by Cloete in the holding cell, the police officers would not have been able to hear his screams as the holding cells were in a building which was to some degree separated from the charge office.

[13] After cross-examination of the Plaintiff, Mr Visagie called the Defendant's first witness, Veronica Theresa Van Wyk, to testify. She had been a police officer for 15 years and was promoted to sergeant in 2013. She was one of the 3 police officers who came across the Plaintiff on 03 March 2012. At the time of the incident, Sergeant Van Wyk would have been a police officer for approximately 8 years. According to her, she and two of her police colleagues were out on patrol in a police van. At the N7 road they saw a man in the middle of the road. They could only spot him from the lights of a vehicle which were shining on him. She testified further that when they approached the man, who turned out to be the Plaintiff, they discovered that he was heavily intoxicated. She said that fearing for his safety, especially that he might be killed by passing vehicles, they arrested him and took him to the Nababeep Police Station to be detained. It was not clear why, if the police officers feared for the Plaintiff's safety, they chose the most extreme option of arresting and detaining him, and thereby deprive him of his liberty instead of considering less extreme alternatives.

[14] The next witness for the Defendant was warrant officer Doreen Jane Ballie. She had been a police officer for 25 years, and a warrant officer for 12. This means at the time of the incident she would have been a police officer for 18 years and a warrant officer for 5. Her evidence was largely the same as that of sergeant Van Wyk who testified before her. According to her, they were out on patrol in a police van. On the N7 road at night they noticed a male person in the lights of a vehicle which was a bakkie. The bakkie apparently had to swerve away from the person who turned out to be the Plaintiff to avoid running him over. According to

warrant officer Bailie, after the bakkie, a truck apparently also had to swerve out of the way to avoid running the Plaintiff over who was apparently still in the middle of the road. According to her, the Plaintiff was intoxicated and they arrested him for public

drunkenness. They then took him to the Nababeep where he was detained. She testified that they told the Plaintiff that they were

taking him away from the N7 for his own safety. Again, it was not clear why, if the concern was for the Plaintiff's safety, the police officers opted for the most extreme option of arrest and detention.

[15] Under cross-examination by Mr Simon for the Plaintiff, Sergeant Van Wyk said that she was aware that they did not arrest and detain the Plaintiff for a Schedule 1 offence as stipulated in the Criminal Procedure Act for which a prison sentence of 6 months without the option of a fine may be imposed. She admitted that the Plaintiff was arrested without a warrant, but, so she said, she believed they did not arrest him unlawfully because at the time of the arrest he was swaying in the road and he was drunk. According to Sergeant Van Wyk, who was a constable at the time of the incident, their practice was to arrest people whom they believed were drunk in public and take them to the police station where they would be detained in the holding cells for 4 hours, and then released. It was apparent that a year after the incident, on 03 March 2013, Sergeant Van Wyk was asked to prepare an affidavit when litigation in regard to the incident was commenced by the Plaintiff. In his cross-examination Mr Simon pointed out to her that 1 year after the incident she mentioned in her affidavit that a truck swerved away from the Plaintiff in the road to avoid running him over, but that she had mentioned nothing about a bakkie swerving away from the Plaintiff to avoid running him over. Yet, so Mr Simon proceeded, 7 years after the incident she was testifying about a bakkie. Mr Simon asked her to explain the discrepancy. Sergeant Van Wyk said that when she prepared the affidavit 1 year after the incident, mention of a bakkie had slipped her mind. She said that 7 years since the incident she remembered that the bakkie was also trying to avoid the Plaintiff where he was drunk in the middle of the road. Mr Simon pointed out to Sergeant Van Wyk that in view of the fact that the Plaintiff had not committed a Schedule 1 offence there was no need to take such drastic measures which involved depriving him of his liberty. Nothing, according to Mr Simon, prevented them from simply taking the plaintiff home if they were that concerned for his safety.

[16] Warrant officer Ballie also prepared an affidavit on 03 March 2013, a year after the incident. In his cross-examination Mr Simon put it to her that while section 40(1) of the Criminal Procedure Act allows a police officer to make an arrest without a warrant, the police officer nevertheless has a discretion. This was apparent from the use of the word "may" in that section. Warrant officer Ballie agreed with Mr Simon. He also put it to her that a Schedule 1 offence was a more serious offence than public drunkenness in that for a Schedule 1 offence a sentence of imprisonment without the option of a fine may be imposed. She agreed with him. Mr Simon asked Warrant officer Ballie why they could not simply call the Plaintiff's family regarding the situation if they were concerned for his safety as they professed to be. Warrant officer replied that that was not how they worked. She said the Plaintiff never appeared in Court for public drunkenness. He was not required to pay a fine either. According to warrant officer Ballie, public drunkenness cases were typically withdrawn and do not proceed any further. Like Sergeant Van Wyk, warrant officer made no mention

about a bakkie in her affidavit which was prepared 1 year after the incident, yet she mentioned the bakkie in her evidence 7 years after the incident. Like Sergeant Van Wyk, warrant officer Bailie said that mention of the bakkie had slipped her mind when she prepared the affidavit a year after the incident. It was apparent from Bailie's testimony that the purpose of the Plaintiff's arrest was never to secure his attendance in Court to face any charge.

[17] The third witness to testify for the defendant was Constable Wilma Magerman who had been a police officer for 11 years. At the time of the incident she would have been a police officer for 4 years. According to her, she was manning the Nababeep Police Station (also called the Community Service Centre or "Gemeenskapsdiensentrum"). Because she was manning the police station at the time, she was referred to as station commander. On 03 March 2012, her 3 colleagues brought the plaintiff to the police station after his arrest. Constable Magerman said that as station commander her duties included writing up the register, answering telephone calls, attending to persons who come to the police station and making regular cell visits. According to her, this keeps any station commander on duty very busy. She said that after the plaintiff was locked up in one of the holding cells, she conducted cell visits every half hour and that she did so in accordance with standing orders contained in the document titled "National Instruction 11 of 2019: Arrest, Treatment and Transportation of an Arrested Person". She confirmed the practice that persons found to be drunk in public would be locked up for 4 hours and then released without charge. In other words, she confirmed that the arrest of these persons was never to secure their attendance in Court for the purpose of facing charges.

[18] A fourth police officer testified on behalf of the Defendant. His testimony was essentially that he arrived at the police station late and to help out constable Magerman. According to him, he carried out cell visits since his colleague, constable Magerman, was kept busy in the charge office by her duties there. He testified that he did not notice anything amiss when he carried out cell visits. However, this police officer had the tendency to make assumptions about he had no knowledge of. For instance, he testified that as he looked into the holding cell that the Plaintiff was placed in, all the occupants were intoxicated and sleeping, and were unaware of his presence - and he chose not to wake them up. It was not clear how, if this police officer had never seen any of the occupants awake to make a determination if they were actually under the influence of alcohol, he could arrive at the conclusion that they intoxicated. The Court found this police officer to be rather liberal in his assumptions during his testimony.

Conclusion

[19] The issue in this matter is really whether the Defendant's employees, members of the South African Police Service stationed at the Nababeep Police Station, owed persons they arrest and detain in police holding cells a legal duty of safety. In other words, whether the Defendant, through his police officers, has a duty to ensure a detainee's safety while such detainee is in the Defendant's custody. The Plaintiff's evidence that the person who assaulted him in the holding cell, namely Eric Cloete, was arrested and detained for unruly behaviour was not contested. It was not clear why this person was not, for reasons of his unruly behaviour, placed in a separate holding cell instead of being bundled in the same cell as other detainees. The Plaintiff's testimony that Eric Cloete was eventually charged with and convicted of the assault on the Plaintiff was not contested either. In his cross-examination of the Plaintiff, Mr Visagie put it to him that even if he had screamed to the police officers in the charge office for help while

he was being assaulted in the holding cell by Cloete, the police officers would not have been able to hear his screams as the holding

cells were in a building which was to some degree separate from the charge office. According to Constable Magerman, as station commander, she was the only police officer on duty at the police station while her colleagues were out on police patrol. This situation continued after her 3 colleagues brought the Plaintiff to the station for detention after his arrest. Constable Magerman was only joined by a colleague much later who arrived at the station to help her out. Having regard to how busy she was in the charge office with her duties which included writing up the register, answering telephone calls, attending to persons who come to the police station, it is highly improbable that she would still have been able to carry out cell visits every half hour while she was alone in the charge office. This would have meant leaving the charge office unattended while the telephone rings and people came in to the charge office to be attended to. The Court finds it improbable that constable Magerman would have left the charge office unattended and go to a part of the building which was to some degree separate from the charge office to carry out cell visits. The Court concludes that Constable Magerman did not in fact carry out cell visits every half hour as she claimed to have done.

[20] The Court is of the view that the Defendant owed the Plaintiff a legal duty to ensure his safety while in the Defendant's custody. Having regard to the evidence in its totality, the Court finds that the Defendant failed in his duty, the result of which was that the Plaintiff was assaulted and seriously injured by a person - Eric Cloete - who was arrested for unruly behaviour and placed in the same holding cell as the Plaintiff. The Court is of the view that the Defendant's employees - the police officers stationed at the Nababeep Police Station - ought to have been aware that Eric Cloete posed a threat to the safety of fellow detainees, and ought not to have placed him in the same holding cell as the Plaintiff.

Order

[21] In the circumstances, the Court makes the following order:

(a) Judgment is granted against the Defendant and in favour of the Plaintiff with costs, with the exception of the Plaintiff's claim for unlawful arrest. In other words, the Plaintiff's claim for unlawful arrest is, for the reasons mentioned in paragraph 2 of the judgment, not upheld.

(b) The matter is to proceed for the purpose of determining the issue of quantum.

DAUDS AJ

For the Plaintiff: Adv. Charles Simon

Attorneys:

Cornelissen Incorporated

Parklands, Table View, Cape Town

jannie@cornelissen- inc.co.za

(Ref: JHC/LM/DAMON)

c/o Hugo Mathewson & Oosthuizen Incorporated

3 Bean Street

Kimberley

riana@hmoattorneys.co.za

(Ref: RIANA GAGIANO/COR27/0001)

For the Defendant : Mr Pierre Visagie

Office of the State Attorney

1st Floor, Woolworths Building

Corner Chapel and Lennox Streets,

(Ref: 69/201314440/PV/lj)