Ditira and Others v Minister of Police (1870/2016) [2023] ZANWHC 177 (29 September 2023)

IN THE NORTH WEST PROVINCIAL DIVISION, MAHIKENG

Case no: 1870/2016

Reportable: YES

/ NO

Circulate to Judges: YES

/ NO

Circulate to Magistrates:

YES / NO

Circulate to Regional Magistrates: YES / NO

In the matter between:

KEGOMODITSWE DITIRA

1st PLAINTIFF

MAGABE GADISUNAME

2nd PLAINTIFF

JOSIA LOOSEBOY

3rd PLAINTIFF

T MOTSHIDIS

4th PLAINTIFF

DISEBO KEOTSHABE

5th PLAINTIFF

V GAOKUMELWE

6th PLAINTIFF

ESHANE MOTSHIDISI

7th PLAINTIFF

TUMISNAG MOGOROSI

8th PLAINTIFF

DIPUO GAOKOMELWE

9th PLAINTIFF

LESEGO SYLVESTER MOGAPELWA

10th PLAINTIFF

KEDIBONE MEKGWE

11th PLAINTIFF

DINEO SEGOMOTSI

12th PLAINTIFF

KEBITSAMANG MOTLUDI

13th PLAINTIFF

BONOLO MOGOROSI

14th PLAINTIFF

LEBOGANG SAM LETLHOHELA

15th PLAINTIFF

KEEPAKAE THEOPHILUS

16th PLAINTIFF

BATLHALEHI K

17th PLAINTIFF

and

MINISTER OF POLICE

DEFENDANT

DATE OF HEARING: 3 JULY 2023

DATE OF JUDGEMENT: 29 September 2023

FOR PLAINTIFF:

Adv O Mothibi

FOR DEFENDANT:

Mr Lehabe

Delivered : This judgment is handed down electronically by circulation to the parties through their legal representatives’ email addresses. The date for the hand-down is deemed to be 13H00 on 29 September 2023.

ORDER

Consequently the following order is made:

(a) The claim against the 3rd plaintiff is struck off the roll.

(b) The defendant is ordered to pay the sum R50 000.00 to the 1st , 2nd , 4th to 17th plaintiffs, as damages relating to the plaintiffs’ unlawful arrest and detention.

(c) The defendant is ordered to pay interest, in respect of the aforesaid amount, at the prescribed rate from date of judgement until date of final payment.

(d) The defendant is ordered to pay the costs of suit on the High Court scale.

JUDGMENT

MAHLANGU AJ

INTRODUCTION

[1] This is a dilictual claim against the Minister of Police for the alleged unlawful arrest and unlawful detention. This claim was brought by 17 plaintiffs, the third plaintiff abandoned the claim at the start of the trial. The matter proceeded in respect of other plaintiffs.

[2] The plaintiffs were arrested at different times on 14 September 2016 and were collectively charged with the contravention of the National Road Traffic Act, Act 93 of 1996 and the Regulation of Gatherings Act, Act 205 of 1993 (the charges). Subsequent to their arrest, during November 2016, the plaintiffs instituted an action against the defendant claiming R600 000 each for unlawful arrest, assault and detention, contumilia, inhuman treatment and emotional shock..

[3] In his plea the defendant admitted arrest and detention but denied any wrongfulness nor unlawfulness as alleged by plaintiffs in their claim and denied any indebtedness to the plaintiffs. The defendant further denied to have ever assaulted any of the plaintiffs during the arrest.

[4] At the beginning of the trial, the parties agreed that the plaintiffs’ case be dealt with first and that there would be no separation between merits and quantum. This court was seized with making a determination on both. The plaintiffs have also prayed for costs for this trial in the event that this court finds in their favour.

FACTUAL BACKGROUND

[5] On 14 September 2016, the Public Order Police Unit (POP) under the commander of the late Captain Ramakatsa, was informed of the protest that was taking place on the N18 Road at the cross road of Pudumoe and Coseng village (N18 road).

[6] Captain Ramakatsa informed the 28 POP members who were under his command to proceed to the N18 Road to assess the situation. On their arrival at the scene, Captain Ramakatsa addressed the protestors and informed them to disperse in 10 minutes. The protestors failed to disperse. He gave them the second warning and after the third warning, he threw the stan grenade to the protestors with the intention of dispersing them, the protestors started to run into different directions of the N18 road. Captain Ramakatsa instructed the POP members to arrest the protestors who continued with the protest after they were told to disperse.

[7] Plaintiffs were arrested in and the around the scene of the incident. Others were arrested in the morning and others during the day. According to Captain Ramakatsa, the plaintiffs were arrested for the charges.

[8] All the arrested plaintiffs were transported to Pudumoe police station with police vehicles. At the police station, the plaintiffs were taken into the boardroom where their rights were explained to them before they were detained. They were all released at 24h00, all the plaintiffs spent less than 24 hours in custody. Upon their release they were given a notice to appear at Taung Magistrate Court (court). The statement of Captain Ramakatsa was accepted by the court

in terms of section 3 of the Law of Evidence Act 45 of 1988. He has since passed away.

[9] There was no testimony against the 2, 8, 9 and the 15th plaintiffs’ claim of unlawful arrest and detention. I am therefore of a view that their arrest and detention should be deemed

to be unlawful and wrongful.

Plaintiff’s evidence

Kegomoditse Ditira-The 1st Plaintiff

[10] Ms Ditira testified that on 14 September 2016 she left her home at around 3h00 going to the N18 road where she was supposed to meet with other people at 4h00. The reason for the meeting was to protest on the N18 road. Whilst waiting for other people to gather, she proceeded to N18 road to go see what was happening. She saw a group of people chanting and singing. She then heard a big sound coming from the protestors. The people started to disperse and ran to different directions. She also started to run but was arrested before she could escape. She was told to get into the police motor vehicle where she was taken to the police station. The police officer who arrested her did not explain the reasons for her arrest and her rights during the arrest.

[11] At the police station, she was taken to the boardroom together with all the people that were arrested at the scene. She testified that, whilst in the boardroom, she was given some documents to sign without them being explained to her. She was thereafter taken to the filthy cell with unhealthy conditions. There was no privacy when using the toilet. She was released at around 24h00. She testified that the reason for her arrest and her rights were not explained to her before she was detained. She was just told to sign the documentation without the contents being explained to her.

[12] Under cross-examination, Ms Ditira denied to have placed any stone on the N18 road and that she was never on the N18 road. Counsel for the defendant contended that at the time of her arrest, Ms Ditira was informed of her rights and the reason of her arrest as her signature appears on the warning statement and the notice of rights. In this regard she was referred to the notice of rights and the warning statement where it is stated that the police had told her that she was arrested because she was a suspect of the charges she was facing. Ms Ditira denied this and explained that when she signed the notice of rights, she was never told what it was, neither was she ever given details of the charges. She explained that she did not even know what a warning statement and the notice of rights she was just told to sign without any explanation.

[13] Ms Ditira further admitted during cross-examination that, she was not arrested for two days she was arrested at around 6h00 and was released at around 24h00. She was not assaulted during her arrest as stated in the particulars of claim. She further admitted that she was given a documentation warning her to appear in court on 4 October 2016.

Gadisuname Magabe-The 2nd Plaintiff

[14] Ms Magabe testified that, she was arrested on 14 September 2016 at around 13h00 whilst walking to Pudumoe village. Whilst walking, she saw people on the street being chased by the police armoured vehicle. She joined the running people and she also ran away. She hide herself in a certain house, whilst inside that house, she was shot by a police officer with a rubber bullet. She was told to get into the police vehicle where she was taken to the police station at around 14h00. She was later taken by the police to Pudumoe clinic for medical attention, from the clinic she was taken back to the police station. She testified that at the police station she was made to sign the documentation provided to her without them being explained to her, she was there after taken to the police cells. She testified that she did not commit any offence and her rights were not explained

to her during her detention.

[15] She testified that, she found unknown people in the cell. There was no privacy as the toilet was used in the full view of other people. The cell was stinky. They were given blankets to sleep and were also provided with food.

[16] Under cross-examination, Ms Magabe denied to have placed any stone on the N18 road. Counsel for the defendant contended that at the time of her arrest, Ms Magabe was informed of her rights and the reason of her arrest as her signature appears on the warning statement and the notice of rights. In this regard she was referred to the warning statement and the notice of rights where it is stated that the police had told her she was arrested because he was a suspect of the charges. Ms Magabe denied this and explained that when she signed the notice of rights and the warning statement, she was never told what

it was, neither was she never given details of the charges. She explained that she did not even know what the notice of rights and the warning statement were, she was just told to sign without anything being explained to her.

[17] Ms Magabe further admitted during cross-examination that, she was not detained for two days as stated in the particulars of claim. She was detained from 14h00 until 24h00 when she was released from the cells and that she was not assaulted during her arrest as stated in the particulars of claim. She further admitted that she was given a documentation warning her to appear in court on 4 October 2016.

Motshidisi Debra Thomas-The 4th Plaintiff

[18] Ms Thomas testified that, on the day of the incident, she walked from Coseng to Pudumoe to join people who were going to a protest. She arrived at Pudumoe at around 5h00. Whilst walking, they heard a big sound and she saw people running, she joined them but was apprehended by a police officers who took her to the police vehicle. The police officers chased other people and arrested them, they were also placed inside the police vehicle. She testified that, she was not informed of the reasons to arrest her and her rights before being arrested.

[19] At the police station, she was taken into the boardroom where she was made to sign some documentation without them being explained to her. After the signing of the documentation, she was taken to the filthy, unhealthy and stinky cell. Inside the cell, she found some of the people that were arrested at the scene of the incident and some people unknown to her. She also testified that they were provided with meals. She testified that she was released at around 24h30. She

denied that she had ever put a stone on the N18 road and that she ever participated in the protest. She testified that she was arrested before she could arrive at the N18 road.

[20] Under cross-examination, Ms Thomas denied to have placed any stone on the road and she was never on the N18 road. Counsel for the defendant contended that at the time of her arrest, Ms Thomas was informed of her rights and the reason of her arrest as her signature appears on the warning statement and the notice of rights. In this regard she was referred to the notice of rights where it is stated that the police had told her she was arrested because he was a suspect of the charges. Ms Thomas denied this and explained that when she signed the notice of rights, she was never told what it was, neither was she never given details of the charges. She was told to signed the paper without anything being explained to her.

[21] Ms Thomas further admitted during cross-examination that, she was not detained for two days, she was not assaulted during her arrest as stated in the particulars of claim. She further admitted that she was given a documentation warning her to appear in court on 4 October 2016.

Keaotshepa Disebo-The 5th Plaintiff

[22] Ms Disebo testified that on the day of the incident, she left Cosen at around 5h30 on his way to Pudumoe. Whilst walking she met a group of people running she turned back and walked away. As she was walking, the police officers stopped her and instructed her to go into the police armoured vehicle. She testified that she was not told of the reason for her arrest, nor were her rights explained to her.

[23] At the police station, she was taken into the boardroom. Where she was made to sign the documentation without the contents being explained to her. She was kept in the cell together with other unknown people which was filthy and smelly, the toilet had no privacy. Everyone had to relieve themselves in front of others. She was provided with the blanket to sleep and the food. She denied to have committed any offence.

[24] Under cross-examination, Ms Disebo denied to have placed any stone on the N18 road and that she was never on the N18 road. Counsel for the defendant contended that at the time of her arrest, Ms Disebo was informed of her rights and the reason of her arrest as her signature appears on the warning statement. In this regard she was referred to the notice of rights where it is stated that the police had told her that she was arrested because she was a suspected of the charges. Ms Disebo denied this and explained that when she signed the notice of rights, she was never told what it was, neither was she never given

details of the charges. She signed the paper without anything being explained to her.

[25] Ms Disebo further admitted during cross-examination that, she was not detained for two days but was detained from 8h00 to 24h00, she was not assaulted during her arrest as stated in the particulars of claim. She further admitted that she was given a documentation warning her to appear in court on 4 October 2016.

Victoria Gaokumelwe-The 6th Plaintiff

[26] Ms Gaokumelwe testified that on the day of the incident, she went to the N18 road to observe what was happening. On her arrival she found the burning tyres and police vehicles parked on the side of the N18 road. Police started to fire rubber bullets, she attempted to run away but she fell. She was arrested and put inside the police vehicle. She testified that her reason for the arrest and her rights were not explained to her at the time of her arrest. She was later taken to the police station together with the other people that were inside the police vehicle.

[27] At the police station her finger prints were taken and was made to complete documentation that was not explained to her. The police officer took her to the clinic as she was injured on her hand. She was detained in the police cell without the reason for her arrest being explained to her. She was released at around 24h00. She denied to have ever taken part in the protest and that she never put a stone on the N18 road. She testified that, the intention was to protest without causing any damage.

[28] The cell she was kept in was unhealthy and dirty. There was no privacy when using the toilet, they had to have their food with the toilet inside the cell.

[29] Under cross-examination, Ms Gaokumelwe denied to have placed any stone on the N18 road and that she was never on the N18 road. Counsel for the defendant contended that at the time of her arrest, Ms Gauokumelwe was informed of her rights and the reason of her arrest as her signature appears on the warning statement. In this regard she was referred to the notice of rights where it is stated that the police had told her she was arrested because she was a suspect of the charges. Ms Gaokumelwe denied this and explained that when she signed the notice of rights, she was never told what it was, neither was she

never given details of the charges. She explained that she did not even know what a warning statement and the notice of rights were, she was just told to sign without anything being explained to her.

[30] Ms Gaokumelwe further admitted during cross-examination that, she was not detained for two days but was detained from around 8h00 and released at around 24h00, she was not assaulted during her arrest as stated in the particulars of claim. She further admitted that she was given a documentation warning her to appear in court on 4 October 2016.

Motshidisi Violet Eshane-The 7th Plaintiff

[31] Ms Eshane testified that, she joined a group of people who were going to N18 road to see what was happening. She testified that she was arrested whilst on the N18 road and was put inside the police vehicle that was on the scene. The reason for her arrest and her rights were not explained to her during the arrest. She denied that she put a stone on the N18 road and that the police did not have any reason to arrest her.

[32] At the police station, she was kept inside the boardroom with all other people that were arrested at the scene. She was made to sign the documentation without its contents being explained to her. She was thereafter taken into the filthy police cell with people unknown to her. There was no privacy in the cell and had to have their food whilst some people were using the toilet.

[33] Under cross-examination, Ms Eshane denied to have placed any stone on the N18 road. Counsel for the defendant contended that at the time of her arrest, Ms Eshane was informed of her rights and the reason of her arrest as her signature appears on the warning statement. In this regard she was referred to the notice of rights where it is stated that the police had told her she was arrested because he was a suspect in the charges. Ms Eshane denied this and explained that when she signed the notice of rights and the warning statement, she was never told what it was, neither was she never given details of the

charges. She signed the paper without anything being explained to him.

[34] Ms Eshane further admitted during cross-examination that, she was not detained for two days but was detained from around 8h00 and released at 24h00, she was not assaulted during her arrest as stated in the particulars of claim. She further admitted that she was given a documentation warning her to appear in court on 4 October 2016.

Tumisang Mogorosi-The 8th Plaintiff

[35] Mr Mogorosi testified that, on the day of the incident, he was on his way to work, when he met a group of people gathered in the street. He thereafter saw police vehicles parked on the side of the road. The police approached him and told him to go back, he tried to explain that he was going to work but was not listened to, instead they chased him. He ran into the house next to the road, the police started firing rubber bullets whilst inside that house and one lady who also ran into that house got injured. One of the police officers approached him and instructed him to get inside the police vehicle. Mr Mogorosi testified that, the police did not inform him about the reason for his arrest and his rights were not explained to him. He was driven to the police station together with all the people that were also arrested.

[36] At the police station he was taken to the boardroom together with all the people that were arrested. He was made to sign documentation that was not explained to him. He was then taken into the filthy unhealthy police cell. There was no privacy when using the toilet and had to have food whilst someone uses the toilet.

[37] Under cross-examination, Mr Mogorosi denied to have placed any stone on the N18 road and that he was never on the N18 road. Counsel for the defendant contended that at the time of his arrest, Mr Mogorosi was informed of his rights and the reason of her arrest as his signature appears on the warning statement. In this regard he was referred to the notice of rights where it is stated that the police had told her she was arrested because he was a suspect in the charges. Mr Mogorosi explained that he did not even know the warning statement and the notice of rights, he was just told to sign without anything being explained to her.

[38] Mr Mogorosi further admitted during cross-examination that, he was not detained for two days but was detained from around 9h00 and released at 24h00, he was not assaulted during his arrest as stated in the particulars of claim. He further admitted that he was given a documentation warning him to appear in court on 4 October 2016.

Dipuo Gaokumelwe, 9th Plaintiff

[39] Ms Gaokomelwe testified that on the day of the incident, she saw a group of people being chased by police officers. He joined that group of people and she also started to run into the house next to the road. The police followed them and pepper sprayed them whilst in that house. She was then arrested and was put inside the police motor vehicle where he was later taken to the police station. The reasons for her arrest and her rights were not explained to her during the arrest.

[40] At the police station, she was taken into the boardroom where she was made to sign the documentation without their contents being explained to her. She was detained in the police cell together with the people she was arrested with. She did confirm that the signature appearing on the rights is her signature but the rights were not explained to her. He further testified that, he was detained and kept in a filthy police cell with unhealthy sleeping conditions. There was no privacy when using the toilet.

[41] During cross examination, Ms Gaokomelwe testified that, she knew about the protest that were taking place at N18 road but he was not part of the protest. She was adamant during cross examination that, during her arrest, the arresting officer did not explain to her her reasons for her arrest and her rights. The defendant’s counsel put it to Ms Gaokomelwe that, she was informed of the reason for the arrest and all charges as she confirmed same on her warning statement

where signature appeared. Ms Gaokomelwe explained that she did not even know what a warning statement and the notice of rights are, she was just told to sign without anything being explained to her.

[42] She further testified during cross examination that, she was not detained for two days as it is mentioned in the particulars of claim and was not assaulted by the police during his arrest. She was detained from around 9h00 and released at 24h00. She was given a notice to appear in court when she was released.

Lesego Sylveser Mogapelwa, 10th Plaintiff

[43] He testified that, on the day of the incident, he was supposed to go join the protestors when he saw fire coming from the N18 road. Before he could arrive at the scene, he saw the police officers on the road who stopped him and pointed him with fire-arms. He was arrested by the police officers put inside a police vehicle and was taken to Pudumoe police station. He was arrested without the police officer explaining the reasons for his arrest and his rights.

[44] He was kept in the filthy cell with other people, some known others unknown to him. They were given the blankets to sleep in. Everyone had to relieve themselves in front of others. There was no privacy when using the toilet in the cell. They were given three meals on that day which was difficult to eat.

[45] During cross examination, he testified that, his intention was to go and protest on the N18 road. He denies that he barricaded the N18 and that he burned tyres on the N18 road. He also testified that, he was never on the N18 road, they were stopped by the police before they could reach the N18 road.

[46] He testified that he did not know the arresting officer before the incident. The reason for his arrest and his constitutional rights were not explained to him during the arrest. He was only made to sign the documents that he did not understand at the police station. Counsel for the defendant contended that at the time of his arrest, Mr Mogapelwa was informed of his rights and the reason of her arrest as his signature appears on the warning statement. In this regard he was referred to the notice of rights where it is stated that the police had told her she was arrested because he was a suspect in the charges. Mr Mogapelwa explained that he did not even know the warning statement and the notice of rights, he was just told to sign without

anything being explained to her.

[47] He admitted that he was not detained for 2 days, he was detained between 9h15 and 24h00, and was not assaulted by the police officers during the arrest. He was also given the notice to appear in court upon his arrest. He denied the claim as mentioned in the POC.

Kedibone Mekgwe, 11th Plaintiff

[48] Ms Mekgwe testified that on 14 September 2016, at around 6h00, he was at Coseng village together with other people from the village waiting to be addressed by their leaders to arrange a protest. Whilst walking and proceeding to a meeting place, the saw police officers who started to chase at them. One of the police officers apprehended her and put her inside a police vehicle. Whilst in the police vehicles, other people were also arrested and placed inside that vehicle. He testified that, the reason for her arrest and her rights were not explained to her during the arrest. She testified that he does not why he was arrested as he did not commit any offence.

[49] At the police station, she was taken into the boardroom together with all the people arrested at the scene. She was made to sign some documentation without them being explained to him. She was later taken into the filthy and smelly police cells. She found other people inside the cell, some unknown to her. There was no privacy when using the toilet, and they had food whilst some people where using the toilet. Her rights were also not explained to him during detention.

[50] During cross examination, Counsel for the defendant contended that at the time of her arrest, Ms Mekgwe was informed of her rights and the reason of her arrest as her signature appears on the warning statement. In this regard she was referred to the notice of rights where it is stated that the police had told her she was arrested because he was a suspect in the charges. Ms Mekgwe explained that she did not even know the warning statement and the notice of rights, she was just told to sign without anything being explained to her.

[51] Under cross examination, she did not agree with the content of the particulars of claim which stated that she was detained for two days, that he was assaulted during the arrest and that she was not warned to appear in court during his arrest. She was detained from around 8h00 and released from custody at around 24h00.

Dineo Mogomotsi, 12th plaintiff

[52] She testified that, on 14 September 2016, she saw people walking to the N18 road and she followed them. Whilst walking to N18, she heard a sound coming from the people who gathered at the N18 road and she saw them starting to run in different directions. She also joined them and ran into the veld where she was arrested by the police and placed inside the police armoured vehicle. The police also arrested other people from the scene, put them inside the armoured vehicle and drove around with them. Her reasons for her arrest and her rights were not explained to her during the arrest.

[53] At the police station, she was taken inside the boardroom together with all the people that were arrested at the scene. Inside the boardroom, she was made to sign documentation without their contents being explained to her. She was not informed of her reasons for her arrest nor of her rights. She was taken into the police cells at around 9h00 and were released at 24h00. She testified that he did not commit any offence and that he did not reach the N18 road. She further testified that, the police cells were filthy and there was no privacy when using the toilet. She was supplied with meals during her stay in the cells which she had to have them whilst other people used the toilet.

[54] Under cross-examination, Ms Mogomotsi denied to have placed any stone on the N18road and that she was never on the N18 road. Counsel for the defendant contended that at the time of her arrest, Ms Mogomotsi was informed of the reason of her arrest as her signature appears on the warning statement. In this regard she was referred to her warning statement where it is stated that the police had told him she was arrested because he was a suspect of the charges. Ms Mogomotsi denied this and explained that when she signed the warning statement, she was never told what it was, neither was she never given details of

the charges. She was just told to sign without anything being explained to her.

Kebitsamang Motludi, 13th Plaintiff

[55] Ms Motludi testified that on 14 September 2016, she left his home to go to N18 when he met a police armoured vehicle. She saw people running away and she joined them and she ran too. She testified that, whilst she was running, one police officer shot at her with a rubber bullet and thereafter took her into a police vehicle. She was not informed of her reason for the arrest and also her rights were not explained to her during her arrest.

[56] At the police station, she was taken into the boardroom where she was made to sign documentation without explaining their contents to her. She was thereafter detained in the filthy police cells. There was no privacy in the cell, the toilet was used in the full view of other people. Lunch was also held inside the cell with an open toilet. She testified that she was later taken to the clinic to receive treatment and was thereafter brought back to the cells. She was detained at around 9h00 and released at around 24h00. She testified that the police officer who arrested her did not explain the reasons for her arrest and did not also explain her Constitutional Rights during her detention.

[57] Under cross-examination, Ms Motludi denied to have committed any offence that could have made the police to arrest her. She testified that she was arrested before she could arrive at the N18 road. She did not see what was happening at the N18 road. Counsel for the defendant contended that at the time of her arrest, Ms Motludi was informed of her rights and the reason of her arrest as her signature appears on the warning statement. In this regard she was referred to the notice of rights where it is stated that the police had told him she was arrested because he was a suspect of the charges. Ms Motludi denied this and explained that when she signed the notice of rights, she was never told what it was, neither was she never given details

of the charges. She was just told to sign without anything being explained to him.

[58] She testified that she was not detained for 2 days as alleged in the particulars of claim, but she was detained from 9h00 until 24h00. She was never assaulted during the arrest. She was given a notice to appear in court after her release.

Bonolo Mogorosi, 14th Plaintiff

[59] Ms Mogorosi testified that on 14 September 2016 she was arrested at Coseng village on her way to join the protest at N18. Her reasons for her arrest and her rights were not explained to her during the arrest. She was thereafter taken to the police station together with other people that she found inside were inside the police vehicle. At the police station, she was taken into a boardroom where she was made to sign the documentation without its contents being explained to her. She was thereafter detained in the police cell at around 9h00 and released at 24h00. Ms Mogorosi testified that, she was not informed about her reasons of her detention and her rights were not explained to her during her detention. She denied to have committed any offence that could have made the police to arrest her.

[60] Under cross-examination, she testified that she was arrested before she could arrive at the N18 road. She did not see what was happening at the N18 road. Counsel for the defendant contended that at the time of her arrest, Ms Mogorosi was informed of her rights and the reason of her arrest as her signature appears on the warning statement. In this regard she was referred to the notice of rights where it is stated that the police had told him she was arrested because he was a suspect in the charges. Ms Mogorosi denied this and explained that when she signed the notice of rights and the warning statement, she was never told what it was, neither was she never given details of the charges she was arrested for. She was just told to sign the

documents without anything being explained to her.

[61] She testified that she was not detained for 2 days as alleged in the particulars of claim, but she was detained from 9h00 until 24h00. She was never assaulted during the arrest. She was given a notice to appear in court after her release.

Lebogang Sam Letlhohela, 15th Plaintiff

[62] Mr Letlhohela testified that, on 14 September 2016, he was at his place of residence when he saw the police chasing people on the street. The police got into his premisses and arrested him. He was put inside a police vehicle and was later taken to the police station. His constitutional rights and the reasons for his arrest were not explained to him during the arrest. At the police station he was taken into the boardroom together with all the people that were arrested at the scene. He was made to sign the documentation without its contents being explained to him. He was thereafter taken to to the police cell. He testified that the police cells were filthy and their condition not health. The cell had an open toilet that was used in full view of other people. They were released at around 24h00. He testified that he was assaulted by the police with a stick.

[63] During cross-examination, he testified that she was arrested before he could arrive at the N18 road. Counsel for the defendant contended that at the time of her arrest, Mr Letlohela was informed of his rights and the reason of his arrest as his signature appears on the warning statement. In this regard he was referred to the notice of rights where it is stated that the police had told him he was arrested because he was a suspect of the charges. Mr Letlhohelai denied this and explained that when he signed the notice of rights, he was never told what it was, neither was he never given details of the charges she was facing He was just told to sign without anything being explained to him.

[64] He was detained at 9h00 and released at 24h00, he denied to have been detained for 2 days as per the particulars of claim. He did admit that he was assaulted by the police with a stick during his arrest but no evidence was brought forward to prove the assault. He was provided with the notice to appear in court upon his release from custody.

Keepakae Theophilius, 16th Plaintiff

[65] Mr Keepakae testified that he was arrested on 14 September 2016 at Pudumoe village on his way to look for his donkeys. Whilst walking to Pudumoe, he met the protestors and the police who were on the N18 road. He got into the veld next to the road to continue the search for donkeys when the police arrested him at around 8h00. He was assaulted during the arrest. The reason for his arrest and his rights were not explained to him during the arrest.

[66] At the police station he was taken to a boardroom where he was made to sign the documents he did not understand. He was thereafter taken to the police cell where he was released at around 24h00. The police cell was filthy and unhealthy. The toilet was inside the cell without any privacy. They had to have food given to them whilst some people were using the toilet. He denied to have ever taken part in the protest. He testified that his rights and the reason for his arrest

were not explained to him during his detention.

[67] During cross-examination Mr Keepakae admitted that there were violent protest on that day on the N18 road but he denied to have been part of it. He admitted that he was not arrested for two days and that he was warned of court appearance upon his release. He was adamant that he was never informed of his constitutional rights upon his arrest. The counsel for the defendant put it to him that he was informed of the reasons for his arrest as he confirmed same on his warning statement where his signature appears. He explained that, he did not even know what a warning statement and the notice of rights were, he was just told to sign without anything being explained to him.

[68] He was detained from around 9h00 until 24h00 when he was released. He denied to have been detained for 2 days and that he was assaulted during the arrest. He was provided with the notice to appear in court upon his release.

Kebone Botlhalehi, the 17th Plaintiff

[69] Ms Bothlalehi testified that, on the day of the incident she went to Podumoe to check on the police vehicles that were on the street. She met people singing on the street. She heard a loud bang and the people started to run away, she joined in and also ran. She fell whilst running and was arrested by the police who put her inside the police vehicle. She was taken to the police station by the police vehicle. Her constitutional and the reasons for her arrest were not explained to her during arrest. She denied to have committed any offence nor to have taken part in the protest.

[70] At the police station, she was given some documents to sign without any explanation of what it was. She was thereafter detained in the filthy stinking police cell that was unhealthy. They were supplied with breakfast, lunch and supper whilst in the cell. She could not eat it as she was supposed to have whilst other people were using the toilet. She was released at around 24h00.

[71] During cross-examination, she denied that she went to Pudumoe with the intention of joining the protesters. She denied to have ever put a stone on N18 road. Counsel for the defendant contended that at the time of her arrest, Ms Bothlalehi was informed of her rights and the reason of her arrest as her signature appears on the warning statement. In this regard she was referred to the notice of rights where it is stated that the police had told him she was arrested because he was a suspect of the charges. Ms Bothlalehi denied this and explained that when she signed the notice of rights, she was never told what it was, neither was she never given details of the charges. She explained that she did not even know what a warning statement and the notice of rights are, she was told to sign without anything being explained to her.

[72] She testified that she was detained for two days and that she was not assaulted during the arrest. She further testified that she was provided with the warning to appear at court.

EVIDENCE LED BY THE DEFENDANT

[73] The first defendant called eleven (11) witnesses to testify on his behalf. They testified on behalf of the plaintiffs except for plaintiff number 2, 8, 9 and 15. The witnesses evidence was materially and factually the same. I do not intend to summarise the evidence of all the defence witnesses in any amount of detail. They materially corroborated each other in their evidence.

[74] The defendant’s witnesses testified that, they were employed by the first defendant as police officers. They were placed under the POP unit stationed at Vryburg police station. They testified that on 14 September 2016 at around 3h45 the received a call from Captain Ramakatsa informing them about the closure of the N18 road. They testified that, they were 28 in number and had gathered at Vryburg police station to be briefed by Captain Ramakatsa. After the briefing they proceeded to where the road that was closed, which was at roads on the N18 road.

[75] On arrival at the scene, they found the N18 road being barricaded by the group of protestors with burning tyres and stones. Captain Ramakatsa addressed the protestors and told them to disperse within 10 minutes. The protestors refused to disperse and continued with the protest. Captain Ramakatsa warned the protestors for the second time and they refused to disperse. He warned them for the third time but they still refused and they continued barricading the road. Captain Ramakatsa threw the stan grenade with an attempt to disperse the protestors. The protestors continued with the protest.

[76] They testified that, Captain Ramakatsa instructed them to arrest the protestors as they were illegally barricading the N18 road. They testified that they then arrested the plaintiffs except for plaintiffs number 2, 8, 9, and 15. They testified that, after arresting the plaintiffs, they informed them of their reasons of their arrests and also explained their rights to them. They thereafter took the plaintiffs to Pudumoe police station using the police vehicles.

[77] During cross examination, they testified that, on their arrival at the Pudumoe police station, they took the plaintiffs into the board room where they were made to sign the notice of rights. They thereafter detained the plaintiffs in the police cells.

EVIDENCE

[78] The evidence of the plaintiffs corroborated each other’s versions in many respects e.g not being told of their rights at the time of arrest and reasons for their arrest, being forced to sign documents without any explanation and the conditions of the cells where they were kept. None of the plaintiffs that testified contradicted themselves or avoided answering any questions. They were all calm, honest and I found them to be credible witnesses.

[79] The defendants’ witnesses on the other hand were cagey and evasive. They could not explain how the plaintiff’s rights were explained inside the boardroom that was occupied by all the plaintiff’s and the arresting officers. They could also not reasonably explain at what stage were the plaintiff’s rights and the reason for the arrest was explained at the scene of crime as it was chaotic. According to some of the plaintiffs, they were instructed to get into the quantum by their arresting officers and others were instructed to get into the armoured police vehicle.

[80] No evidence was led relating to the arrest and detention of the 2, 8, 9 and 15th plaintiff. It is therefore my view that, failure by the defendant to justify the arrest and detention of the 2, 8,9 and 15th plaintiffs, their arrest and detention is unlawful.

[81] In the matter of Stellenbosch Farmers’ Winery Group LTD and another v Martell et cie and others 2003 (1) SA 11 (SCA) at paragraph D held that;

“The technique generally employed by courts in resolving factual disputes of this nature may conveniently be summarised as follows; to come to a conclusion on the disputed issues a court must make findings on (a) the credibility of the various factual witnesses (b) particular witness will depend on it’s impression about the veracity of the witness. That in turn will depend on a variety of subsidiary factors not necessarily in order of importance, such as (i) the witness candour and demeanour in the witness box (ii) the bias latent and blatant (iii) internal contradictions in his evidence (iv) external contradictions with what was pleaded or put on his behalf or with established fact or with his own extracural statements or actions (v) the probability of particular aspects of his version (vi) the calibre and cogency of his performance compared to that of other witnesses testifying about the same incident or events”

[82] It is my view that the plaintiffs were credible witnesses and they were calm and honest when answering the question posed to them .

Unlawful arrest

[83] Since the defendant had admitted the arrest, it bore the onus to prove on a preponderance of probability that its version is the truth and that the arrest was lawful. This onus is discharged if the defendant can show by credible evidence that their version is the more probable and acceptable version. The credibility of the witnesses, the probability and the improbability of what they say should not be regarded as separate enquiries to be considered piecemeal. They are part of a single investigation into the acceptability or otherwise of a defendant’s version, an investigation where questions of demeanor and impression are measured against the content of a witness’s evidence, where the importance of any discrepancies or contradictions are assessed and where a particular story is tested against facts which cannot be disputed and against the inherent probabilities so that at the end of the day one can say with conviction that one version is more probable and should be accepted, and that therefore the other version is false and maybe rejected with safety. In this regard see Mabona and another v Minister of Law and order and others 1988 (2) SA 654.

[84] In R v Hafele 1938 SWA 21, Van der Heever J gave the following description of demeanor:

“ (22) The word demeanor does not merely signify the appearance of the witness in the box; whether he gives his testimony with assurance,

sometimes amounting to impudence, or whether he has a sheepish look which one would expect from a liar.: it means much more; it signifies that which distinguishes the living from mere written records and it includes such matters as a momentary hesitation and intonation of the voice and a thousand considerations which one may enumerate”.

[85] It is common cause that the time of the plaintiff’s arrest, the plaintiffs were allegedly arrested for the obstruction of the Road Traffic Act and the Gatherings Act. It is also common cause that all the plaintiffs that were arrested were transported to the police station where they were detained.

[86] The defendants do not take issue with the fact that the plaintiff was arrested and detained. It was pleaded on behalf of the defendants that the arrest was lawful, detention was not wrongful and that the prosecution was not malicious.

[87] The following are the essential jurisdictional facts which have to be present to justify an arrest without a warrant:

1. The arresting officer must be a peace officer;

2. The arresting officer must entertain a suspicion;

3. The suspicion must be that the suspect (the arrestee) committed an offence referred to in Schedule 1;

4. The suspicion must be based on reasonable grounds.

See Minister of Safety & Security v Sekhotho and Another 2011 (5) SA 367 (SCA).

Zealand v Minister of Justice and Constitutional Development [2008] ZACC 3; 2008 (4) SA 458 (CC).

[88] It is trite that the onus rests on the police officer to prove the lawfulness of the arrest. The reasonableness of the suspicion of any arresting officer acting under section 40(1)(b) of the Criminal Procedure Act 51 of 1977 (CPA), must be approached objectively.

[89] In evaluating his information given by the arresting officers on their reasons to arrest the plaintiffs, a reasonable person would bear in mind that the section authorises drastic police action. It authorises an arrest on the strength of a suspicion and without a need to arrest with a warrant, i.e something which otherwise would be an invasion of private rights and personal liberty. The reasonable person will therefore analyse and assess the quality of the evidence at his disposal critically before concluding that the plaintiff was involved in the offence and will not accept it lightly. It is only after an examination of this kind that he will allow himself to entertain a suspicion which will justify an arrest. This is not to say the information nor the suspicion at his disposal must be of a sufficiently high quality and cogency to engender in him a conviction that the suspect is in fact guilty. The section requires suspicion but not certainty. However, the suspicion must be based upon reasonable solid grounds. Otherwise, it will be lightly or arbitrary and not a reasonable suspicion. It is my view that the plaintiffs were arrested as they were easily apprehended by the police from the group of protestors.

[90] A claim under the action iniuriam for unlawful arrest and detention has specific requirements:

1) The plaintiff must establish that his liberty has been interfered with;

2) The plaintiff must establish that this interference occurred intentionally. In claims for unlawful arrest, a plaintiff need only to show that the defendant acted intentionally in depriving his liberty and not that the defendant knew that it was wrongful to do so;

3) The deprivation of liberty must be wrongful, with the onus falling on the defendant to show why it is not; and

4) The plaintiff must establish that the conduct of the defendant must have caused, both legally and factually, the harm for which compensation is sought.

In this regard see De Klerk v Minister of Police 2020 (1) SACR (1) CC (De Klerk).

[91] Section 12(1) of the Constitution provides that:

“Everyone has the right to freedom and security of the person, which includes the right-

(a) not to be deprived of freedom arbitrarily or without just cause;”

[92] Section 12(1) applies to all persons in the Republic, it is entrenched in the Bill of Rights. It goes together with section 10 of the Constitution which states that every person has inherent dignity and everyone has the right to have their dignity respected and protected. The police are expected to abide by the principle of legality entrenched in the Constitution.

[93] The plaintiffs were arrested and were put inside the police vehicle by different police officers. There was commotion as there were protest in the scene. It could not be clarified by the defendant’s witnesses the reasons why the plaintiffs were arrested and the suspicions that led to their arrest. Further it is not clear from the testimony of the police officers as to at what stage were the reasons for the arrest and rights were explained to the plaintiff.

[94] At the police station, both plaintiff and the defendant agree that, the plaintiffs were kept inside the boardroom where they were made to sign documentation provided to them. The defendant’s witnesses did not explain how were the explanation made in a boardroom full of people. I am of a view that, because the chaotic situation at the scene, the arresting officers failed to follow the correct procedure of explaining the reasons of arresting the plaintiffs and also their rights at the scene. At the police station, all the arrested people and their arresting officers were kept in the boardroom were the plaintiffs were made to sign their rights. It is my view that, it is highly impossible to explain the rights in that situation, the plaintiffs evidence that they were instructed to sign the documentation without its content being explained to them is admissible.

[95] In the Minister of Law and Order v Hurley [1996] ZASCA 53; 1986 (3) SA 568 (A) (Hurley) the following was stated:

“An arrest constitutes an interference with the liberty of the individual concerned, and it therefore seems to be fair and just to require that the person who arrested or caused the arrest of another person should bear the onus of proving that his action was justified in law.”

Quantum

[96] It is trite that damages are awarded to deter and prevent future infringements of fundamental rights by organs of state. They are a gesture of goodwill to the aggrieved and they do not rectify the wrong that took place. In Minister of Safety and Security v Seymour 2006 (6) SA 320 (SCA), the Court encapsulated the purpose of damages and said:

“ Money can never be more than a crude solatium for the deprivation of what in truth can never be restored and there is no empirical measure for the loss”

[97] Various factors play a role in determining an appropriate amount, including the circumstances under which the deprivation of liberty took place, the presence of improper motive or ‘malice’ on the part of the police officers, the harsh conduct of the police officers during the arrest; duration and nature of the deprivation of liberty; the extent of publicity given to the deprivation of liberty; awards in previous comparable cases (together with the effect of inflation) and the fact that, in addition to physical freedom, other personality interests (such as good name and honor) and constitutionality protected fundamental rights have been infringed.

[98] In Minister of Safety and Security v Tyulu 2009 (5) SA 85 (SCA) Bosielo AJA said the following at paragraph 26 of the judgement:

“[26] In the assessment of damages for unlawful arrest and detention, it is important to bear in mind that the primary purpose is not to enrich the aggrieved party but to offer him or her some much needed solatium for his or her injured feelings. It is therefore crucial that serious attempts be made to ensure that damages awarded are commensurate with the injury inflicted. However, our courts should be astute to ensure that the award they make for such infractions reflect the importance of the right to personal liberty and the seriousness with which any arbitrary deprivation of personal liberty is viewed in our law. I readily concede that it is

impossible to determine an award of damages for this kind of injuria with any kind of mathematical accuracy. Although it is always helpful to have regard to awards made in previous cases to serve as a guide, such an approach if slavishly followed can prove to be treacherous. The correct approach is to have regard to all the facts of the particular case and to determine the quantum of damages on such facts (Minister of Safety and Security v Seymour 2006 (6) SA 320 (SCA) at 325 para 17; Rudolph and others v Minister of Safety and Security and Another 2009 (5) SA 94 (SCA) ([2009] ZASCA 39) paras 26-29).”

[99] In Rahim and 14 others v The Minister of Home Affairs 2015(7K6) QOD (SCA), at para 27, it was held that:

“[27] The deprivation of liberty is indeed a serious matter. In cases of non-patrimonial loss where damages are claimed the extent of damages cannot be assessed with mathematical precision. In such cases the exercise of a reasonable discretion by the court and broad general considerations play a decisive role in the process of quantification. This does not, of course, absolve a plaintiff of adducing evidence which will enable a court to make an appropriate and fair award. In cases involving deprivation of liberty the amount of satisfaction is calculated by the court ex aequo et bono. Inter alia the following factors are relevant:

27.1 circumstances under which the deprivation of liberty took place;

27.2 the conduct of the defendants; and

27.3 the nature and duration of deprivation.

Having regard to the to the limited information available and taking into account the factors referred to it appears to me to be just to award globular amounts that vary in relation to the time each of the appellants spent in detention”.

[100] In Olgar v The Minister of Safety and Security 2008 JDRJ582 (E) at para 16, Jones J remarked that:

“In modern South Africa a just award for damages for wrongful arrest and detention should express the importance of the constitutional right to individual freedom, and it should properly take into account the facts of the case, the personal circumstances of the victim, and the nature, extent and degree of the affront of his dignity and his sense of personal worth. These considerations should be tempered with restraint and proper regard to the value of money, to avoid the notion of extravagant distribution of wealth from what Holmes J called the ‘horn of plenty’, at the expense of the defendant.”

[101] It is useful for the court to consider the assessment of awards for damages in previous cases although this exercise has its own challenges. It should also be taken into consideration that each case is decided on its own merits and the determination of quantum is at the discretion of the Court.

[102] In Minister of Police v Du Plessis 2014 (1) SACR 217 (SCA) at paragraph [15], Navsa ADP, writing for the Court emphasized the sanctity of the right of liberty as follows:

“[15] Our new constitutional order, conscious of our oppressive past, was designed to curb intrusions upon personal liberty which have always even in the dark days of apartheid been judicially valued, and to ensure that excesses of the past would not recur. The right of liberty is inextricably linked to human dignity. Section 1 of the Constitution proclaims as founding values human dignity, the advancement of human rights and freedom. Put simply, we as society place a premium on the right of liberty”. (my emphasis)

[103] In assessing the quantum of damages to award, the factors ordinarily considered at paragraph 27 of the Tyulu judgement supra are apposite:

“[27] Having given careful consideration to all relevant facts, including the age of the respondent, the circumstances of his arrest, its nature and short duration, his social and professional standing, the fact that he was arrested for an improper motive and awards made in comparable cases, I am of a view that a fair and appropriate award of damages for the respondent’s unlawful arrest and detention is an amount of R15 00.”

[104] Furthermore, in the assessment of damages, it is useful to have regard to previously decided cases, but in doing so the view

expressed in Steenbergen and others v Minister of Safety and Security (1071/2003, 1072/2003) [2011] ZAFSHC 132 (21 July 2011), by Fischer AJ is apposite:

“[22] I am mindful of the fact that the assessment of awards for general damages with reference to awards made in earlier cases is ‘fraught with difficulty’ as each case falls to be analysed with reference to its own particular facts and circumstances, which seldom, if at all, compare directly with those in another case. Earlier cases are regarded as useful guide as to what has been considered to be appropriate in the past, but such earlier cases quite clearly serve no greater purpose than that. (See the Symour case supra at page 325 para [17]).

[105] In Visser & Potgieter, Law of Damges, Third Edition, at 545 to 548, the authors propose a number of factors which could assist in assessment of damages:

“In deprivation of liberty the amount of satisfaction is in the discretion of the court and calculated ex aequo et bona. Factors

which can play a role are circumstances under which the deprivation of liberty took place, the presence or absence of improper motive or ‘malice’ on the part of the defendant; harsh conduct of the defendants; the duration and nature (eg solitary confinement or humiliating nature) of the deprivation of liberty; the status; standing, age, health and disability of the plaintiff, the extent of the publicity given to the deprivation of liberty, the presence or absence of an apology or satisfactory explanation of the events by the defendant; awards in previous comparable cases; the fact that in addition to physical freedom, other personality protected fundamental rights have been infringed; the high value of the right to physical liberty; the effects of inflation; the fact that the plaintiff contributed to his or her misfortune; the effect an award may have on the public purse; and, according to some, the view that the action iniuriamrum also has a punitive function.”

[106] The sentiments expressed in Rahim and 14 others v The Minister of Home Affairs 2015 (7K6) QOD 191 (SCA) is apposite:

27.1 circumstances under which the deprivation of liberty took place;

27.1 the conduct of the defendants; and

27.3 the nature and duration of the deprivation.

Having regard to the limited information available and taking into account the factors referred to it appears to me to be just to award globular amounts that vary in relation to the time each of the appellants spent in detention” (my underlining).

[107] In the unreported Full Bench judgement of Tobase v Minister of Police and others CIV APP MG 10/2021 (3 December 2021) NWHC, Hendricks DJP as he was then, stated as follows:

[15] In Ngwenya v Minister of Police (924/2016) [2019] 3 ZANWHC 3 (7 February 2019) this Court awarded R15 000.00 per day for unlawful arrest and detention……

[16] The award of the appropriate amount of damages as solatium is within the discretion of the presiding Magistrate or Judge, which discretion must be exercised judicially, taking into account all the factors and circumstances relevant for the imposition of a reasonable amount. Although there is no exact mathematical formula that can be applied, courts should nevertheless strive to achieve a balanced and fair amount, to be awarded as compensation.

[25] Having considered all the facts and circumstances of this case, as well as the personal circumstances of the appellant, which is paramount and which must be considered. I am of the view that an amount of R15 000.00 per day, totalling R45 000.00 should be awarded as reasonable and appropriate solatium……”

[108] In the final analysis, a court in exercising its discretion must balance a premium placed on the right of liberty and seriousness

attached to any deprivation of liberty, whilst avoiding extravagance in compensating for loss of liberty, having regard to peculiar facts of the matter at hand.

[109] The circumstances under which the plaintiff was detained for less that 24 hours were unpleasant at the very least. No amount of compensation can undo the humiliation and human rights violation suffered by the applicants. Appropriate solatia, taking into account all of these factors, are the following: the plaintiffs should be awarded total compensation in the amount of R50 000.00 each. I should pause to mention that the plaintiff’s were arrested in different times and they spend different hours in custody. But it would be reasonable to compensate them with the same amount of money as they all spent less than 24 hours in custody.

Costs

[110] In so far as costs are concerned, the defendant should pay costs relating to the unlawful arrest and detention of plaintiffs.

Order

[111] Consequently the following order is made:

(a) The claim against the 3rd plaintiff is struck from the roll;

(b) The defendant is ordered to pay the sum R50 000.00 to the 1st , 2nd , 4th to 17th plaintiffs, as damages relating to the plaintiffs’ unlawful arrest and detention.

(c) The defendant is ordered to pay interest, in respect of the aforesaid amount, at the prescribed rate from date of judgement until date of final payment.

NORTH WEST HIGH COURT DIVISION, MAHIKENG

APPEARANCES

DATE OF HEARING: 3 July 2023 DATE OF JUDGMENT: 29 September 2023 ATTORNEYS: FOR THE PLAINTIFF: MOTSHABI & ASSOCIATES INC APPLICANT'S ATTORNEYS NO 12 HAVENGA STREET GOLF VIEW MAFIKENG TEL: 018 381 8187 FAX: 018 381 8131 REF: MR MOTSHABI/ M 0277/CIV COUNSEL FOR THE DEFENDANT: STATE ATTORNEY, MAHIKENG CNR SEKAME ROAD DR JAMES MOROKA DRIVE 1st FLOOR, EAST GALLERY MEGACITY COMPLEX MMABATHO TEL: 018 384 0161/0269 REF: 1360/16/P3