Netshindama v Minister of Police and Another (96403/2015) [2020] ZAGPPHC 138 (20 March 2020)

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION

(1) REPORTABLE: YES/NO

(2) OF INTEREST TO OTHER JUDGES: YES/NO

(3) REVISED.

CASE NUMBER: 96403/2015

20/3/2020

In the matter between:

REFILOE PATIENCE NETSHANDAMA

Plaintiff

and

THE MINISTER OF POLICE

First Defendant

NATIONAL COMMISSIONER OF THE SOUTH AFRICAN

POLICE SERVICES

Second Defendant

JUDGMENT

STRIJDOM, AJ

1. The plaintiff in this matter, Ms Refiloe Patience Natshandama instituted civil action against the Minister of Police (“First Defendant”) and the National Commissioner of the South African Police Services (“Second Defendant”).

2. She claims a total sum of R1.5 million in respect of general damages. The claim is based on the alleged unlawful arrest and assault of the plaintiff at the behest of the defendants’ employees, it being alleged that on 11 April 2013, plaintiff was unlawfully assaulted, tortured and detained by members of the South African Police Service for a robbery that had occurred at Engen Garage[1].

3. Plaintiff alleges that at the Rabasotho Police Station in Tembisa the members of the South African Police Service assaulted her by beating her and causing injuries to her eyes, jaws and face, she was also shocked. Subsequent to being assaulted, she was released on 13 April 2013 and was never brought before a magistrate. She was detained for approximately 2 days following her arrest and thereafter she was released.

4. While the defendant admits having arrested the plaintiff, the defendant denies that such arrest was in any way unlawful. In this regards, the defendant pleaded that:-

4.1 Plaintiff was arrested by Detective Constable Moloto, a peace officer as defined in section 40 of the Criminal Procedure Act No 51 of 1977;

4.2 That Constable Moloto arrested plaintiff on reasonable suspicion that plaintiff committed an offence referred to in Schedule 1 of Act 51 of 1977 to wit accessory or accomplice to armed robbery;

4.3 The suspicion that plaintiff committed a Schedule 1 offence was based on reasonable grounds; and

4.4 That Detective Constable Moloto was therefore entitled to arrest the plaintiff without a warrant in terms of section 40 Act 51 of 1977.

5. In so far as the alleged assault is concerned, the defendants deny vehemently that their employees ever assaulted plaintiff.

The Issues

6. The court was called upon to adjudicate two issues, firstly whether plaintiff’s arrest and subsequent detention was unlawful and secondly whether plaintiff was indeed assaulted by the defendants’ employees.

The arrest

7. The facts of the alleged unlawful arrest are to a certain extend largely common cause and can be summarised as follows:-

7.1 On 10 April 2013 at an Engen Garage (“the garage”) situated around Tembisa, a robbery took place whereupon the garage was robbed of a large sum of money. Plaintiff was at the time of the robbery an employee of the garage and was on duty as a cashier.

7.2 Following the armed robbery, the police from Rabasotho Police Station were summoned to the scene of the crime.

7.3 The owner of the garage, Mr Sandile Sikhosana testified that the garage was equipped with CCTV cameras and that the footage of the robbery was shown to the plaintiff.

7.4 Having reviewed the CCTV footage and after conducting some preliminary investigation, Constable Moloto formed a suspicion that some of the employees of the garage might have been involved in the armed robbery. Constable Moloto then decided to take plaintiff together with other employees of the garage to Rabasotho Police Station for further questioning.

7.5 On arrival at the Rabasotho Police Station, plaintiff was questioned by Constable Moloto and he formed the suspicion that the plaintiff was involved in the robbery.

7.6 Plaintiff admitted to Constable Moloto that she knows one of the people involved in the robbery and undertook to show Constable Moloto where that person resides. Constable Moloto decided to arrest plaintiff and to continue with investigations the next morning.

7.7 Plaintiff denies the existence of the video footage and that she was aware of the existence of a panic button.

The assault

8. The facts of the alleged assault can be summarised as follows:-

8.1 The plaintiff was booked out of the cells by Constable Moloto on the 11th of April 2013 at approximately 10H00. She was later then taken to the garage where the robbery took place.

8.2 Upon leaving the garage the plaintiff was taken back to the Rabasotho Police Station. Plaintiff testified that when they arrived at the Police Station she was placed on the floor of an empty room, her hands handcuffed at the back while being questioned about where she had put the money from the garage. When she informed Constable Moloto and other members that she knew nothing about the robbery, they assaulted her by hitting her on the face with open hands and fists and she was repeatedly kicked.

8.3 After stating that she knew nothing about the robbery, one of the members of the SAPS, filled a transparent plastic bag with water and covered plaintiff’s face with it. Unable to breathe, the plaintiff fainted and collapsed. The next thing the plaintiff remembered was waking up and her clothes drenched with water.

8.4 Not knowing what they would do to her next or where they were taking her, the plaintiff, out of fear, told the members of the SAPS that she would take them to the house of the man she planned the robbery with, if they did not assault her any further.

8.5 Plaintiff testified that members of the SAPS drove around Tembisa with the plaintiff handcuffed in the back seat of the police vehicle and she randomly pointed out a shack and indicated to them that the man whom she planned the robbery with lived there. Unable to locate the man, they took the plaintiff back to the Police Station and she was booked back in a cell.

8.6 Plaintiff further testified that as a result of being assaulted, her face was swollen, her eyes were bruised, and she was unable to properly open and close her mouth. She did not receive any treatment for her injuries whilst in custody despite having requested pain medication from a female guard who was on duty in the cells.

8.7 After her release from custody the plaintiff was attended to by Dr Mabela and Dr Katszeff who completed a J88 form.

The common cause facts

9. The following facts are common cause between the parties:-

9.1 On 10 April 2013 at approximately 17H30, the plaintiff reported for duty at Engen Garage in Tembisa, Gauteng. She was employed as a cashier stationed at Teller 1.

9.2 At approximately 20H00, four armed men entered the store, held the cashiers at gunpoint and robbed the store emptying out the money in the tills.

9.3 Plaintiff was required to attend at Rabasotho Police Station in Tembisa with other staff members.

9.4 Upon arrival at the Police Station, at approximately 22H00, the plaintiff was arrested for the robbery which had occurred on 10 April 2013.

9.5 The plaintiff was detained from 10 April 2013 to 13H45 on 12 April 2013 when she was released.

9.6 Plaintiff was arrested by Detective Constable Moloto, a peace officer as defined in section 40 of the Criminal Procedure Act No 51 of 1977.

9.7 The Engen Garage in Tembisa where the robbery took place, was equipped with CCTV cameras and a panic button.

9.8 The plaintiff sustained injuries depicted on the photographs and on the J88 completed by Dr Mabela and Dr Katszeff.

Assessment of credibility and probabilities

10. Plaintiff’s witnesses

10.1 Ms Netshandama made a favourable impression on the court as an intelligent witness whose account was truthful and reliable. She gave a thorough account of the incident in a straight forward manner. Under cross-examination she was able to logically substantiate her evidence thereby reinforcing it.

10.2 Although there are some contradictions in her evidence, contradictions per se do not lead to rejection of the witness’ evidence. Her evidence is also corroborated by her witnesses as far as the injuries that she sustained are concerned. Her version is also reconcilable with the probabilities and objective facts in this matter.

10.3 Dr Mabela was an impressive and reliable witness. His evidence was not seriously contested by the defendants’ counsel in cross-examination. The nature of his evidence is consistent with that of the plaintiff’s version of events.

10.4 Lebohang Masupha gave his version of events in a clear, concise and cogent manner. His version was aligned with that of the plaintiff as well as the other witnesses called by the plaintiff. His evidence was credible and free from contradictions and discrepancies concerning the details.

10.5 Mpho Ngale also came across as a credible and reliable witness. She impressed the court as a good witness and there is nothing to cast doubt on her veracity concerning the events. She did not contradict herself in any material way. She gave her evidence in a logical fashion which corroborated the version of the plaintiff.

11. Defendants’ witnesses

11.1 Constable Moloto did not impress the court as a reliable witness. His evidence regarding the incident was not credible and free from contradictions. There are inconsistencies between his evidence and the other defendants’ witnesses.

11.2 Constable Moloto testified that he could see the video footage very clearly, however, later conceded in cross-examination that there were some movements of the plaintiff that were not clear.

11.3 He testified that he was aware of the amounts that were in each till on the night of the robbery because Sandile and the manager gave him receipts from the till. Sandile stated that it would have been impossible to know the amounts then and that he only checked the till receipts the next day.

11.4 Constable Moloto testified that when he watched the video footage, he saw the plaintiff put something into her pocket, however, Sandile testified that he does not remember seeing that. Constable Moloto testified that while watching the video footage, he saw the plaintiff open the bag of money which had been thrown near the bread aisle by one of the robbers, however, Sandile says that the plaintiff felt the bag and that he did not see her open it.

11.5 Constable Moloto and Sandile’s version of what they saw the plaintiff do with the bag is further contradicted by Constable Mabale, who testified that he saw the plaintiff kick the bag of money to one of the robbers.

11.6 There are further inconsistencies between Constable Moloto and Constable Mabale relating to what they saw on the video footage. Constable Moloto states that the plaintiff pushed one of the robbers out of the shop, however, Constable Mabale states that the plaintiff grabbed the robber and walked him outside the shop. Constable Moloto states that there was one bag of money that the robbers took, however, Constable Mabale testified that he saw two bags of money.

11.7 Constable Moloto initially testified that the reason for the plaintiff’s arrest was due to the fact that when he had taken her into the Police Station for further questioning, the plaintiff confessed to her involvement in the crime saying that a man had approached her in January and asked for help in planning the robbery. When the witness was cross-examined he testified that he decided to arrest the plaintiff after seeing the video footage.

11.8 It is highly improbable that if the plaintiff did in fact confess that she was not taken to a magistrate or a justice of peace to make a confession.

11.9 His version that the plaintiff was not assaulted at the Police Station or whilst in custody is also improbable and not reconcilable with the objective facts of this matter.

11.10 Sandile Sikhosana did not impress the court as a reliable witness as he contradicted the evidence of Constable Moloto and his memory did not serve him well.

11.11 Mr Sikhosana testified that he did not reinstate the plaintiff and that he would not have offered the plaintiff her job back since she was involved in the robbery of his business. During cross-examination he conceded that the plaintiff could have been hired back.

11.12 There are material contradictions between this witness and Constable Moloto regarding their observations of the video footage.

11.13 Mr Sikhosana testified that the plaintiff attended a training course for cashiers. Under cross-examination he testified that he is not sure if she had attended training.

11.14 Mr Sikhosana testified that he does not remember seeing that plaintiff put something into her pocket. Constable Moloto testified that he saw the plaintiff put something into her pocket. Constable Moloto also states that he saw plaintiff open a bag of money. Mr Sokhosana testified that plaintiff felt the bag and that he did not see her opening it.

11.15 Captain Mathebula testified that when roll call was done at the police cells, detainees were taken out of their cells. He testified that he had checked the cells and there were no complaints regarding an assault from any of the detainees. Officer Tlhake testified

that he was a cell commander on 12 April 2013 at Tembisa Police cells from 06H00 to 18H00. He further testified that detainees were only taken out of their cells when a cell commander’s shift started and ended. He also stated that on 12 April 2013 no complaint was made to him by any of the detainees in the cells. The reliance on the cell register is doubtful. Entries in the cell register were made before the roll call was held. It was conceded by Warrant Officer Tlake that it was wrong to make entries in the register before roll call was held.

11.16 Detective Sergeant Mabale testified that he reported on duty at Tembisa Police Station on 11 April 2013. Constable Moloto told him about the robbery the previous night at the Engen Garage and that he had arrested one female. He further testified that the plaintiff was booked out of the cells and handed over to him by Constable Moloto. Sergeant Mabale observed that the plaintiff was crying. He introduced himself to her and asked her why she is crying. The plaintiff answered by saying that she was caught up in a temptation the previous night and she is prepared to cooperate with the police.

11.17 Sergeant Mabale contradicted Moloto and Sandile Sikhosana’s version of what they saw on the video footage.

11.18 Sergeant Mabale testified that he saw the plaintiff kick the bag of money to one of the robbers and there were two bags of money. Neither Constable Moloto nor Sandile Sikhosana testified that they saw the plaintiff kicking the bag two metres. Constable Moloto and Sandile Sikhosana testified that they only saw one bag of money on the video footage.

11.19 Sergeant Mabale denied that he was involved in the interrogation of the plaintiff and when she was assaulted.

11.20 During cross-examination Sergeant Mabale conceded that he was present with Constable Moloto when they consulted with their counsel on the merits of this case and that they had the opportunity to hear each other’s version. In my view, there was the possibility that a witness’ recollection may have been influenced by what he had learnt of the statement of another witness. A witness may well be misled into accepting the recollection of another witness as his own without consciously realising what has happened.

11.21 There are also improbabilities in the witness’ evidence. It is highly improbable that if the plaintiff had confessed to her involvement that no statement was taken from the plaintiff.

11.22 It is also improbable that if the plaintiff was not assaulted at the Police Station that she sustained the injuries shortly after she was released from custody.

11.23 Sergeant Mabale did not impress the court as a reliable witness. His evidence cannot be accepted as demonstrated by the above stated contradictions and improbabilities.

Evaluation of the evidence

12. The technique generally employed by courts in resolving two irreconcilable

versions was described in SFW Group Ltd & Another v Martell et Cie & Others 2003(1) SA 11 (SCA). To come to a conclusion on the disputed issues a court must make findings on (a) the credibility of the various factual witnesses, (b) their reliability; and (c) the probabilities.

13. Where there are two stories mutually distractive, before the onus is discharged, the court must be satisfied that the story of the litigant upon whom the onus rests is true and the other is false. If the acceptable evidence is such that I can simply say that I think it is more probable than not, the burden is discharged, but if the probabilities are equal, it is not.

14. On a conspectus of all the evidence before me I am persuaded that the plaintiff’s

version is not only more probable than that of the defendants’

version but is also corroborated by the evidence of Dr Mabela, Lebohang and Mpho.

Reasonable suspicion

15. The defendants base their defence on section 40(1)(b) of the Criminal Procedure Act 51 of 1977, alleging that the arrest of the plaintiff was lawful.

16. Section 40(1)(b) of the CPA provides that a peace officer may, without a warrant,

arrest any person –

“(b) whom he reasonably suspects of having committed an offence referred to

in Schedule 1, other than the offence of escaping from lawful custody”

17. Certain jurisdictional facts must exist before the power to arrest without a warrant

may be invoked. These include the following:

17.1 The arrestor must be a peace officer;

17.2 The peace officer must entertain a suspicion;

17.3 It must be a suspicion that the arrestee committed a Schedule 1 offence;

and

17.4 That suspicion must rest on reasonable grounds[2].

18. The test poses the following legal question: Would a reasonable man in the

defendant’s position and possessed of the same information have considered that there were good and sufficient grounds for suspecting that the plaintiff was guilty of an offence?

19. It was submitted by counsel for the defendant that Constable Moloto and Mr Sikhosana testified as to what they saw on the video footage. They all pointed

out a number of suspicious behaviour on the plaintiff’s part, which gave rise to a suspicion

that the plaintiff was involved in the armed robbery.

20. The suspicious behaviour can be stated as follows:

20.1 Firstly the two witnesses saw the plaintiff putting money next to the till

when she was expected to have placed the money inside the till or inside

the safe.

20.2 When plaintiff had the opportunity to press the panic button she did not

press the panic button.

20.3 Plaintiff was seen putting something in her pocket.

20.4 Plaintiff was seen on the video footage feeling the school bag that had

money inside.

21. Constable Moloto premises his suspicion on the video footage. His evidence on what he observed was not reliable and was contradicted by other witnesses. His suspicion was not based on solid grounds and in my view was not a reasonable

suspicion. The video footage was not produced during trial. Having considered the discrepancies on what the witnesses saw on the video footage the court cannot attach any weight to it.

Detention

22. It is common cause that the plaintiff was detained from 22H00 on 10 April 2013 to 13H45 on 12 April 2013. The unlawfulness of the detention flows automatically from the unlawful arrest of the plaintiff.

The assault of the plaintiff

23. It was submitted by counsel for the defendant that notwithstanding the fact that there were regular cell visits at the Police Station by the members of the SAPS,

plaintiff did not complain about her assault to neither of them. Plaintiff provided

an explanation for her failure to report. She explained that she had requested a

lady who was in the cells to provide her with a pain killer whereupon the lady said she does not have.

24. It was further submitted that it is improbable that if the plaintiff was assaulted by Constable Moloto and other police officers that she would ask Constable Moloto

to transport her to Sun City prison after she was released.

25. The plaintiff discovered a J88 form which was completed by Dr Maleba[3]. The date on the J88 form is 12 April 2013, the day on which the plaintiff was released from custody.

26. The injuries listed on the J88 include inter alia, the following:

26.1 Punched extensively in the face;

26.2 Injuries to the eyes including pooled bruising;

26.3 Injuries to the jaw (unable to open mouth); and

26.4 Tender and bruised wrists.

27. Dr Mabela confirmed that the injuries sustained by the plaintiff were as a result of

“hand blows”. On examination of the plaintiff he observed that her wrists were tender and bruised which was reconcilable with the plaintiff’s version of someone having struggled while being handcuffed.

28. Dr Mabela further opine that the injuries were consistent with the plaintiff’s

version of being assaulted.

29. Photographs were also taken of the plaintiff’s injuries and submitted into evidence[4].

30. The injuries sustained by the plaintiff were further confirmed by the plaintiff’s brother Lebohang Masupa who visited the plaintiff at the Police Station as well as by the plaintiff’s cousin Mpho Ngale who had taken her to see Dr Mabula.

31. On a conspectus of all the evidence the only reasonable conclusion to be drawn is that the plaintiff was assaulted by the police whilst in custody.

32. I my view the plaintiff has proved on a balance of probabilities that she was

assaulted by the police.

33. The defendant failed to discharge its onus in proving that the plaintiff’s arrest and detention was lawful.

34. In the result the court finds in favour of the plaintiff that she is entitled to the

damages she proves.

J. J. STRIJDOM

ACTING JUSTICE OF THE HIGH COURT

GAUTENG DIVISION, PRETORIA

MATTER HEARD:

12 December 2019

Judgment delivered:

20 March 2020

COUNSEL FOR PLAINTIFF: ADV. B. BODHANIA

Instructed by:

LHL ATTORNEYS Inc.

COUNSEL FOR DEFENDANT: ADV. H.A. MPSHE

Instructed by:

STATE ATTORNEY, PRETORIA

[1] See paragraph 3 of the plaintiff’s Particulars of Claim.

[2] See Duncan v Minister of Law and Order [1986] ZASCA 24; 1986 (2) ALL SA 241 and De Klerk v Minister of Police 2018 (2) 28 (SCA).

[3] See Merits Bundle, Vol 2 at pg. 44.

[4] See Merits Bundle, Vol 1, at pages 62 – 71.