Lingen and Others v Minister of Police (1268/2015) [2020] ZANCHC 19 (14 May 2020)

IN

THE HIGH COURT OF SOUTH AFRICA

(NORTHERN CAPE DIVISION, KIMBERLY)

Reportable:

YES/NO

Circulate to Judge:

YES/NO

Circulate to Magistrates: YES/NO

Circulate to Regional Magistrates: YES/NO

Case no:

1268 / 2015

Date heard: 12/09; 17/12/2019; 18/02 & 19/02/2020

Date available :

14/05/2020

In the matter between:

OBELENG

JAMES

LINGEN

First Plaintiff

TEBOGO

VICTOR

PETRUS

Second Plaintiff

OBAKENG

GRANNET

DIPONE

Third Plaintiff

PASEKA

PANAS

LINGEN

Fourth Plaintiff

OTHUSITSE

MATTHEWS

MASUBE

Fifth Plaintiff

and

THE MINISTER OF

POLICE

Defendant

JUDGMENT

O'BRIEN, AJ

1. On the morning of 20 January 2014, the police received information regarding an illegal gathering at the corner of Hotazel and Vergenoegd Streets. When they arrived at the scene, they found a hostile crowd singing and chanting. A truck carrying manganese was laying on its side, and there were tyres and wood burning.

2. The gathering was, in fact, illegal because no permission was obtained. General Mnguni, the senior officer at the scene, informed the crowd that the unrest was illegal; that they were not to blockade the road and that they should let people through to go to work. Notwithstanding this request, the crowd became aggressive and pelted them with stones, causing the police to leave the scene.

3. The police returned with reinforcements, the Public Order Police Service (POPS). However, the crowd continued throwing stones at them. A trailer used for traffic control - had also been set alight.

4. More POPS members arrived, and they managed to disperse the crowd. Individual members chased after the crowd and succeeded in arresting

the following individuals: General Mnguni - one Steven Geseratwe; Constable Windwaai - the first plaintiff; Constable Madise - the second plaintiff; Constable Kelokilwe - the third plaintiff; Constable Henderson - the fourth plaintiff and Constable Mpangalasane

- the fifth plaintiff.

5. After their arrest, the plaintiffs were taken to and detained at the Kuruman Police Station. They were detained until 16:00 on 22 January 2014 and released on bail.

6. On 5 September 2019, the plaintiffs issued summons out of this Court for damages in respect of unlawful arrest and detention. All of them, in their evidence, testified as follows: They were cleaning at the premises of the first plaintiff whereafter they played a game of cards knows as "casino". While playing, they noticed a crowd running along the road followed by police officials. The police officials stopped at the first plaintiff's yard, and arrested them. They were loaded into a police van. On route to the police station, the van stopped, and they were ordered to push a burning trailer out of the road. They were detained at the police station and released on 22 January 2014. The charges against them were withdrawn.

7. The police pleaded that the arrest and detention of the plaintiffs were lawful in terms of the provisions of section 40 of the Criminal

Procedure Act, 51 of 1977 ("CPA"). Specifically sections 40(1)(a) and (b) of the CPA in that the plaintiffs had committed

offences in their presence, alternatively it was reasonably suspected that each of the plaintiffs had committed a schedule 1 offence.

8. At the commencement of the proceedings, the parties handed up a pre-trial minute setting out various admissions and the issues in

dispute. The court ordered the separation of issues in terms of Rule 33(4). The arrest and detention of the plaintiffs were to be decided first.

9. Because the police had admitted the arrest, the onus was on the respondent to prove the justification thereof.

THE

EVIDENCE

10. Constable Windwaai attached to the K9 Unit testified that when she arrived at the scene, she found police officials being pelted with stones thrown by a crowd. According to her, it was not easy to identify all the stone-throwers, but that, in her experience, she would identify specific individuals to focus on in order to arrest them. The difficulty was always the number of stone­ throwers as well as protection against injury.

11. Windwaai identified the first plaintiff as one of the stone-throwers by his face and clothing. When the crowd dispersed, she gave chase after the first plaintiff and followed him to a shack. She found him behind the shack and arrested him for public violence.

12. During cross-examination by Mr Maree, appearing for the first to fourth plaintiffs, she denied that she had merely arrested the first plaintiff on account of him being an easy target while he was playing cards in his yard. She also denied that the first plaintiff had been playing cards with the other plaintiffs in his yard. She bears no knowledge of the plaintiffs having been ordered by the police officials to push a burning trailer to the side of the road.

13. She denied the discharge of a rubber bullet. She denied any assault on the first plaintiff. She denied having ordered the first plaintiff to lie on the ground. No official ever put his foot on the first plaintiff's neck while he was lying on the ground. She confirmed that she was the official who had arrested the first plaintiff despite his averment that no female police officials were present during his arrest.

14. Constable Modise of POPS confirmed the evidence that road barricades, stone-throwing, the dragging of tree branches to obstruct the road were present at the scene. As the crowd dispersed, he identified one of the perpetrators and had given chase after him. He managed to meet up with the suspect and had pinned him down and arrested him at a shack. This person was the second plaintiff; he had seen him drag tree branches to the road, and throwing stones and that he had identified him as being part of the crowd by his clothing. He arrested the second plaintiff for public violence.

15. During cross-examination, Madise denied the version of the plaintiffs that they were arrested while playing cards. Furthermore, he disputed the statement that he had placed his foot on the plaintiff's neck while he was on the ground and denied having slapped the plaintiff on the head. He rejected the version that the plaintiffs were ordered to get out of the police van to move a burning trailer to the side of the road.

16. It was put to him during cross-examination by Mr Strydom appearing on behalf of the fifth plaintiff that people had run into the yard of the first plaintiff. He replied that he had chased after the fifth plaintiff from the scene - the place of the unrest. He denied that he had placed his foot on the fifth plaintiff's neck while the latter was lying on the ground. He also denied that he had hit the fifth plaintiff on the back of his head. He confirmed that the trailer was set alight.

17. During re-examination, he was shown exhibit 'C' which depicts the scene or area where the shacks were situated and the direction in which he had followed the second plaintiff. He pointed out the area between the shacks where he had arrested the second plaintiff.

18. Constable Kelokilwe of the K9 Unit in Kuruman arrived at the scene and observed members of the public protesting and barricading the road with stones, steel objects and tree branches. The crowd was pelting the police officials with stones. Although he was not able to identify every person in the crowd, he noticed the third plaintiff putting rocks onto the road. A while later, the third plaintiff joined the crowd in throwing stones.

19. He said the situation got out of control and he started chasing after the group who had scattered in all directions. He arrested the third plaintiff in the road between two shacks. He loaded the third plaintiff, together with other persons in the police van and took them to the police cells where they were detained.

20. During cross-examination, Kelokilwe testified that he had to dodge in order to prevent him from being hit by stones thrown in his direction. He was able to see where the stones were coming from. He denied that he had arrested the third plaintiff in a yard. He furthermore denied the averment that the first three plaintiffs had been arrested simply because they were easy targets.

21. When Constable Henderson of the POPS Unit in Kuruman arrived on the scene, he saw a crowd of approximately 300 protesters. The T-junction had been blocked with rocks, stones, burning tyres and road signs.

22. The crowd was throwing stones at the approaching police officials. He noticed a person in the crowd with a stone the size of which could cause a fatal injury. He followed this person - who turned out to be the fourth plaintiff - into a shack where he arrested him. After the arrest, he read him his rights, placed him in the police vehicle and took him to the police station. There he noticed that the fourth plaintiff had an injury to one of his eyes. He offered the plaintiff medical treatment, but the latter declined the offer saying that it was an old cut.

23. During cross-examination, it was put to Henderson that there were police officials outside the shanty arresting people. He stated that he thinks people were arrested near the shanty but qualified the statement by saying that there were many shanties. He never mentioned in his statement what the fourth plaintiff's involvement in the public violence offence was.

24. He denied that he had arrested the fourth plaintiff in a yard. He also denied having placed his foot on the neck of the fourth plaintiff and denied that the police had fired a shot with a rubber bullet. The following day the fourth plaintiffs eye was bleeding as the scab had fallen off the wound. He denied having mistakenly identified the fourth plaintiff. He reiterated that the fourth plaintiff was not with any person at the time of his arrest.

25. Constable Mpangalasane is attached to the POPS in Kimberley. On his arrival at the scene, he observed the blockade referred to by the other police officials in their evidence. He focused on the fifth plaintiff, who was wearing a red t-shirt and blue trousers, and who had participated in the blocking of the road and the burning of tyres. He arrested the fifth plaintiff at a fence which the plaintiff had failed to scale.

26. During cross-examination, he disputed that the first plaintiff had been arrested together with other persons in the yard of the first plaintiff. He denied that the fifth plaintiff had been playing cards when he was arrested.

27. Warrant Officer Hugo attached to the Northern Cape Task Team who investigates public violence cases, was the investigating officer in a number of these cases. His investigation into this incident revealed no evidence of rubber bullets having been used. His evidence is undisputed.

28. All the plaintiffs testified. Their evidence is straightforward. They aver that on the morning of the incident, they cleaned the yard of the first plaintiff until about 9am. After that, they indulged in a game of cards called "casino". While enthralled by their card game, three or four police vehicles arrived, and police officials armed with shotguns ordered them to lie on the ground. When they did not comply with this order, they were forcefully made to lie on the ground. After their arrest, they were

escorted to a police van. While approaching the van, one of the police officers kicked the first plaintiff from behind, causing him to fall to the ground. He denied being arrested by Windwaai and that he had only met her once he was at the police station. On route to the police station, the police van stopped, and they were ordered out of the vehicle and told to remove a burning trailer, which they did. The police officials accused them of having had a hand in setting the trailer alight. The police officials also threatened them.

29. The second plaintiff confirmed the version of the first plaintiff but said that the police officials had had rifles and that they had instructed them to lie on the ground and had placed their feet on their necks. He went further and stated that while on their way to the police van, they were assaulted by the station commander who had struck each of them with his fist as they passed him.

30. The third plaintiff testified that while in the yard, many people were being chased by the police. He did not know where these people had come from nor why the police were chasing them. Police officials entered the yard where they were, and as they were about to enquire from them what was going on, they were shot at with rubber bullets. They were then instructed to lie on the ground. He denied having participated in the protest action.

31. The fourth plaintiff confirmed the version of the other plaintiffs. He added that one of the police officials had hit him with a fist while another had struck him on the right eye causing same to bleed. This injury was caused by a ring a police officer was wearing. He denied having taken part in the protest action.

32. The fifth plaintiff testified that rubber bullets had been fired before being ordered to lie down. He was punched with a fist just below the left eye. They were all loaded into the police van. When they were ordered to remove the burning trailer to the side of the road, he had asked for gloves to be used as the trailer was hot. He denied being involved in the protest action.

33. The versions advanced by the respective parties are diametrically opposed. The police claim that the plaintiffs had committed acts of public violence, while the plaintiffs claim ignorance to it. The factual disputes will be resolved according to the principles laid down in Stellenbosch Farmers' Winery Group Ltd and Another v Martell et Cie and Others, 2003 (1) SA 11 (SCA) at para 5. The police will have to show that their defence, having due regard to the probabilities, the credibility and reliability of the witnesses, their evidence is true and accurate, is therefore acceptable and that the plaintiffs' evidence is false and stands to be rejected.

34. Before turning to the evaluation of the evidence, the following objective facts are not dependent on the credibility of any witness:

34.1 The police were called to a scene of unrest;

34.2 At the scene they found members of the public blocking a T-junction with rocks, tree branches and burning tyres;

34.3 In an attempt to disperse the unruly crowd who were chanting and singing songs, the police approached them;

34.4 The crowd had pelted stones at the police;

34.5 The plaintiffs were arrested. The circumstances thereof are central in this case.

35. It is against this background that I turn to the evaluation of the evidence. The police officials who testified were satisfactory in all material aspects. They did not contradict each other, and I could not find any inherent improbabilities in each of their versions. From the evidence, it is clear that they had arrived on the scene at different times and as such would have observed things from different angles and perspectives.

36. General Mnguni's evidence was not seriously challenged. It could not have been. He was not involved in the arrest of any of the plaintiffs. Therefore his contribution to the issue in dispute is limited. Constable Windwaai was an impressive witness. Her evidence is quite logical in that she testified that her focus had been on a particular person to enable her to identify him and that that person happened to be the first plaintiff. During cross-examination, she was confronted with her statement. It was put to her that the reference to "they" in her statement and her reference to the first plaintiff in her evidence is indicative of a mistake. She explained that English is not her first language, and I find this explanation as cogent. The so-called contradiction is insignificant. She was steadfast in that she had followed the first plaintiff, and had arrested him as opposed to the latter being an easy target. It is also improbable that she would single out the first plaintiff from several people having regard to the fact that it was never put to her that she had mistakenly arrested him.

37. Constable Modise identified the second plaintiff by his clothing and arrested him at a shack. It is highly improbable that he would arrest the second plaintiff in a yard for playing cards.

38. Constable Kelokilwe likewise impressed. He had chased the third plaintiff, kept him in sight and arrested him. He stated that the third plaintiff had placed objects in the road. He also took part in the throwing of stones. He ran when the group dispersed when the police approached them. During cross-examination, it was put to him that his focus had been to avoid being hit by the stones and not on the people. His evidence was that one needs to ascertain the direction from which stones were being thrown. It was put to him that he was mistaken about the identity of the second plaintiff.

39. Constable Henderson was particularly convincing because he had seen a person carrying a rock capable of causing fatal injury should it hit its intended target. He focused on that person, and he had followed him into a shack where he arrested the fourth plaintiff. He noticed that the fourth plaintiff had an injury, and he offered assistance. It was put to him that he never, in his initial statement, described what acts of public violence the fourth plaintiff had committed. He answered that he had indeed described it as public violence.

40. Constable Mpangalasane arrested the fifth plaintiff after the latter could not scale a fence.

41. The plaintiffs were unimpressive as witnesses. They contradicted each other, and their evidence was unconvincing. Furthermore, as I shall show later, their versions are improbable.

42. The first plaintiff contradicted a statement put to the arresting officer that there were six people in his yard. He denied that a sixth person had also been arrested, and was already in the police van. He initially testified that rubber bullets were fired in their direction. That version changed when he said he thinks one rubber bullet was fired. He failed to mention in his evidence in chief that he was punched in the face and that the arresting officer had placed his foot on his neck to pin him to the ground. He disputed the fact that they were accused of setting the trailer alight.

43. The second plaintiff testified that he was punched with a fist in the neck. This statement, however, was never put to General Mnguni. He could not explain his evidence that a person, Life Mogareng, was arrested before plaintiffs' arrest. This was contrary to the evidence of the other plaintiffs who had testified that Life was playing cards with them. He gave a contradictory answer when he was referred to his warning statement about a swollen eye. His evidence was that he never had a swollen eye.

44. The third plaintiff could not explain the absence of an assault allegation in his warning statement. The fourth plaintiff could not explain why it was not put to the arresting officer that the injury to his eye was caused by a ring the officer was wearing. He could not explain why it was not put that they will be shot at if they ran away. Contrary to the evidence of the other plaintiffs, he states that one rubber bullet was fired into the air while he was lying on the ground. It was put to him that, in his warning statement, he refers to a wound suffered when he was struck with a firearm on his right eye. This information could only have come from the fourth plaintiff himself. The fifth plaintiff contradicted the fourth plaintiff regarding the firing of rubber bullet(s). He also never testified that they were threatened to be shot if they ran away.

45. What the above shows, is that the plaintiffs were completely unsatisfactory witnesses.

46. In any event, the versions of the plaintiffs are improbable for the following reasons:-

46.1 they want the Court to accept that they were innocent and had only played cards, in other words, that the police had let the perpetrators get away by arresting the plaintiffs for no apparent reason;

46.2 it is highly unlikely that the police will describe in detail what each plaintiff did and the circumstances under which their arrests had taken place if the sequence of events had not taken place;

46.3 it was never put to the police officials that they had an axe to grind with the plaintiffs;

46.4 if the police simply colluded and made up a story against each of the plaintiffs, they could have done so in a more engaging manner;

46.5 given the simplicity of the arrest, this court finds it unlikely that the police had a false motive to incriminate the plaintiffs;

46.6 for some obscure reason the plaintiffs would have it that, while they were in custody (after much effort from the arresting police

officials), the police officials would allow them to leave the vehicle in order to remove a burning alternatively already burnt-out

trailer from the road. This suggestion is so fanciful and hard to believe - for if it were true, the police ran the risk of the

arrestees absconding.

47. For the above reasons, the Court rejects the plaintiffs' versions and find that they were arrested in the manner and for the reasons set out in this judgment.

48. The final question is whether the police have proven that they had acted in terms of section 40 (1)(a) of the CPA.

49. All the plaintiffs were arrested on a charge of public violence. That offence is described as: "the unlawful and intentional commission, by a number of people acting in concert, of acts of serious dimensions which are intended forcibly to disturb public peace or security or to invade the rights of others." Milton Criminal Law and Procedure Vol 2, p. 74

50. The intentional obstruction of the road, the throwing of stones, the burning of tyres and the obstruction of use of a public road are all acts of public violence. The intention of the participants was directed at disturbing public peace and order. Each of the

plaintiffs, in common with unidentified protesters, committed the acts described above by the police officials. Therefore I am

satisfied that they had committed the crime of public violence in the presence of the police officers. Although in the particulars of claim there was an allegation that the police did not exercise the discretion to arrest rationally, no evidence was led by any of the plaintiffs in that regard, nor was it their case. The officers were justified in arresting them, and accordingly, their claims must fail. Costs will follow the result.

51. I make the following order:

THE PLAINTIFFS' CLAIMS ARE DISMISSED WITH COSTS.

ACTING

JUDGE

NORTHERN

CAPE HIGH COURT

KIMBERLEY

For the 1st to 4th Plaintiffs: Adv. C. Maree (oio Engelsman, Magabane Inc.)

For the 5th Plaintiff: Adv. C. Strydom (oio Engelsman, Magabane Inc.)

Ref: ABES/0003L/ A.301/JA Snyders

For the Defendant:

Adv. A. van Tonder (oio The State Attorney)

Ref: 69/201500311/OM/NX