Phoko v Minister of Safety and Security and Others (1127/2013) [2016] ZANWHC 52 (21 October 2016)

IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION, MAHIKENG

CASE NO: 1127/2013

In the matter between:

STEPHEN POIHO PHOKO

PLAINTIFF

and

THE MINISTER OF SAFETY & SECURITY

FIRST DEFENDANT

LUITENANT GENERAL WILLIAM MPEMBE SECOND DEFENDANT

CAPTAIN WESSIE ENGELBRECHT THIRD DEFENDANT

J U D G M E N T

GURA J:

Introduction

[1] The plaintiff sued the defendants for payment of R1 2000 000 – 00 being damages arising from an incident of 5 July 2012 at Total garage, Mahikeng, where the second and third defendants are alleged to have unlawfully attacked and assaulted the plaintiff.

[2] During the night of 5 July 2012 at 21H00, the plaintiff, a Municipal Traffic Officer, knocked off duty and drove to Total garage in Mahikeng to buy airtime. He was accompanied by his friend, Mr Mmoloki Dijwe (“Dijwe”) who had just arrived from Rustenburg. When these two men met, Dijwe had beer cans which contained draft beer. At Total garage the plaintiff bought airtime and went back to his motor vehicle which was parked in the garage parking area. After occupying the driver’s seat, he started to send the airtime token numbers to someone.

The plaintiff’s evidence

[3] As he was busy with the said process another vehicle arrived there and stopped at a parking space immediately to his left. The driver of that vehicle was a uniformed police captain and his passenger, who occupied the back seat directly behind the driver, was a man who had a suit on. These two were unknown to the plaintiff at that stage. It is now common cause that the man on civilian attire was the second defendant (“the general”) and the captain in police uniform was the third defendant (“the captain”). The plaintiff was also on official uniform.

[4] When the general opened his motor vehicle door, he accidentally hit the body of the plaintiff’s motor vehicle with it. The three (the plaintiff, the general and the captain) then converged at the left rear side of the plaintiff’s car in order to inspect the damage, if any, caused by the general’s door. Fortunately, there was no damage but the general’s car door had deposited a small quantity of paint on the plaintiff’s car body.

[5] The plaintiff testified that the general, in an impolite manner, told him that he should take his car to the panel beater for assessment of any damage and that he (the general) would pay for the costs of repair. He indicated to the plaintiff that he should not worry. At that stage the captain saw the cans of beer in the plaintiff’s car and he told him “I see you are drinking liquor in public, I am arresting you”. The plaintiff asked him why would he arrest him whereupon the captain said for drunken driving. The plaintiff asked him who had been drinking intoxicating liquor because it was Dijwe who had been consuming this beer. A quarrel then ensued between the two (the plaintiff and the captain).

[6] At that stage the general who was unknown to the plaintiff, asked him (the plaintiff) if he knew who he was. The plaintiff’s response was that it is not necessary for me to know you if you have damaged my car, you will have to pay for its repair. The plaintiff walked to his seat but before he could open his car door, the general came to him with a violent attitude. He hit the bonnet of the plaintiff’s car.

[7] In the meantime, the plaintiff got into his car quickly and locked the driver’s door. Unfortunately for him however, his front seat passenger’s window was wide open. Dijwe was seated on that seat at that stage. The captain then put his head through the open window whilst the general was now hitting the driver’s window. The plaintiff tried to communicate with the captain but they could not hear each other. He then told the captain that he was going to start his car in order to go away.

[8] The plaintiff then started his car and reversed. By then the captain was already inside the car through the left front passenger window. He (captain) grabbed the plaintiff on the neck and the latter switched off the engine. The captain then engaged the emergency (hand) brake. Despite the captain’s tight grip on his neck, he managed to open the driver’s door and went out of the vehicle where he eventually met the general. The latter grabbed him and threw him to the ground.

[9] The captain got out of the car and came to assist the general. The plaintiff did not know what were they trying to do but he managed to get out them and walked away. He passed the petrol pump and went to the other side. He then saw a police van arriving at that garage and he went to it in order to ask for help since the captain and the general were assaulting him.

[10] Whilst the plaintiff was talking to a police officer in the police van, the captain approached him and kicked him on the left leg as a result of which both of them (the plaintiff and captain) fell to the ground. At that stage the captain said: “you are under arrest”. When he was directed to stand up, the plaintiff’s left leg started to be painful. He was conveyed to hospital later that night where the doctor confirmed that his left leg had been fractured.

Cross-examination on the plaintiff

[11] The following evidence emerged during cross-examination: Dijwe had two beer cans of which one was still sealed but the second one was open because he was busy drinking from it. In sequel to the incident at that garage, the plaintiff opened a criminal case of assault against the general and the captain. His first statement to the police was made on the day subsequent to this incident, 6 July 2012. The plaintiff could not recall when did he make the second statement but both statements relate to the present civil case as well as the criminal case against the last two defendants. The plaintiff did give evidence in the Magistrates Court in the criminal case against the general and the captain.

[12] The plaintiff denied that he ever insulted the general by calling him with his mother’s private parts. When the captain and the general realised that there was no damage to the plaintiff’s car, it was then that the captain accused him of having consumed liquor in the car and he asked the plaintiff if he knew that he would arrest him. At that stage the captain said the plaintiff was smelling intoxicating liquor. The two beer cans were on the console of the car. The plaintiff denied that there were two beer bottles which were opened already as well as one sealed beer can.

[13] The plaintiff conceded that when he walked away from the two, he knew that the captain had already said he would arrest him. He denied that he drove his car after the police had told him that he could not drive in his alleged intoxicated condition. When he reversed the car, the plaintiff wanted to drop Dijwe at his pace so that he could also go home. At no stage before he was injured did the police tell him that he had to go with them to the police station for investigation of his alleged drunkenness.

[14] In re-examination by his counsel, the plaintiff testified that he went to the police bakkie which had just arrived at the garage in order to ask for help because his life was in danger. The distance between the place where he fell down earlier to a point where he was kicked by the captain is about 16 to 17 paces.

The plaintiff’s witness

[15] The second witness for the plaintiff was Mr Mmoloki Dijwe. His version is to the effect that on 5 July 2012 he was from Rustenburg and his transport dropped him at Mega City – Mmabatho. When the plaintiff knocked off duty he collected him with his motor car. They proceeded to the garage at Mahikeng.

[16] After the general’s vehicle had arrived there, he ( the general) bumped the plaintiff’s car with his door, in the process of opening. The plaintiff, who was on his car seat screamed at the general and said: “Pa can you see that you are damaging my car?” The general did not pay attention to what he was saying but he just walked away in the direction of the shop entrance. The plaintiff alighted from his car in order to check the damage to his car. In the process of getting out of the vehicle, the plaintiff screamed at the general: “Pa, can you see that you cause me damage?”

[17] After checking his car for damage, he came back to his seat. Whilst inside his vehicle, the plaintiff screamed again: “Sir, you should have apologised for the damage you have caused to my car.”

[18] When the general heard that, he was walking away again towards the entrance of the stop. He (the general) came back and he angrily hit the plaintiff’s car with fists, asking: “Do you know who I am?” The captain saw the can of beer inside the plaintiff’s car and he remarked: “You are drunk and you are in uniform.” He put his head and arms into the car through Dijwe’s window and tried to hold the plaintiff with his neck.

[19] The plaintiff started the car and reversed slightly. At that stage the captain’s lower body was still outside the car whilst his upper body was on Dijwe. The latter was seated on the front left seat. The plaintiff stopped the car and alighted from it. Just in the process of getting out of it, there arrived a police vehicle at the garage. He went to the direction of that police vehicle.

[20] The captain got out of the plaintiff’s car through the driver’s door and followed him. He chased the plaintiff and ended up kicking him as a result of which he fell down.

[21] The plaintiff’s car was not parked properly hence Dijwe drove it and parked it in an appropriate space there at the garage. He then heard the plaintiff screaming as if he was in pain. At that stage the captain kept on saying that he would arrest him for drinking and driving whilst on uniform. There were two beer cans in the plaintiff’s car of which one was sealed and the second one was already opened. This intoxicating liquor was brought by Dijwe but the plaintiff did not drink it. He was sober.

Cross-examination on the plaintiff’s witness

[22] The following evidence was tendered by Dijwe during cross-examination. The only words which he (Dijwe) heard being uttered by the plaintiff were: “Sir, can’t you see that you are damaging my car?” He never heard the plaintiff calling the general with his mother’s private parts. Dijwe did not hear the general advising the plaintiff to get quotations for the damage to his car. He said that he did not believe that the general could have uttered those words because of the magnitude of his anger.

[23] When asked what made the general to return from the shop entrance and go to the plaintiff’s car, Dijwe said it was when he (the general) heard the plaintiff saying: “Sir, you should have apologised.” Counsel for the defendants then suggested to the witness that when the general walked towards the shop entrance it was after the trio had discussed the issue about the bumping of the plaintiff’s car with the general’s car door. His response was that he never saw any discussion. A follow-up question was: “So you never saw any discussion between the plaintiff and the general?” His response was yes.

[24] When the captain grabbed the plaintiff with his neck, he was very aggressive. He then freed himself and went out of the car. Dijwe testified that he never heard the captain saying that he was going to arrest them for drinking in public.

[25] Earlier that day on his way from Rustenburg, Dijwe bought six beer cans. He then drank four out of these beer cans. When he met the Plaintiff at Mega City, he had two cans only. When this incident occurred, there were only two cans in the car, one in his hand and the sealed one in the console. When he saw the captain kicking the plaintiff, Dijwe was seated inside the car. He kicked him on the inner side of his left leg. He was asked about what eventually happened to the two beer cans which were in the plaintiff’s car. His response was that he left them inside the car after parking it and that he never threw them away.

Absolution from the instance

[26] After the close of the plaintiff’s case Ms Mongale for the defendants applied for absolution from the instance in respect of the captain and the general. This application was opposed by Ms Smit for the plaintiff. The Court granted absolution from the instance in favour of the general and ruled that the first defendant and the captain had a case to answer.

The first defence witness

[27] Both the captain and the general gave evidence for the defence. Here is the captain’s account of the events of 5 July 2012 at 22H00. He was the driver of the general’s official motor vehicle, an unmarked police car, Ford Everest. The captain was in police uniform but the general was not. The latter alighted from the vehicle whilst the captain was busy switching off the engine. He then noticed that the general was involved in a conversation with the driver of the car which was stationary on the right side of the Ford Everest. At that stage the plaintiff was still inside his car.

[28] The captain heard the plaintiff insulting the general in Setswana with his mother’s private parts. He (the captain) alighted from the car. The general then said to the plaintiff: “If there is any damage to your vehicle go and get quotations, then I will pay.” The general further said to the plaintiff that it was not necessary for him to insult or scream at him.

[29] The captain noticed that the plaintiff was wearing a uniform for Road Traffic Officers. The passenger in the plaintiff’s car was holding a beer bottle containing beer. Apart from this beer bottle, there were two beer containers on the console of this car. The latter two containers were an already open beer can and a sealed beer bottle. It was then that the captain drew the general’s attention to the liquor.

[30] The captain then informed the plaintiff that he was going to arrest him for drinking in public. The plaintiff told him that he could try but he would loose the case in court. The captain went nearer to the plaintiff in order to “study him”, he said. At that stage they were standing outside next to the left rear door of the plaintiff’s car. The captain then noticed, through the garage lights, that the plaintiff’s eyes were red and his breath had a smell of alcohol. The captain informed him that his eyes were red and he was smelling liquor. The latter said: “No, you don’t do this to me” and he pointed the captain with a finger under his nose.

[31] The general informed him that since he was drinking in public, consequently he was not in a position to drive. He accordingly instructed the plaintiff to accompany them to the police station where they would deal with that case further. The plaintiff walked to his car, occupied the driver’s seat and locked the door. What the two officers intended to do was for the general to drive the plaintiff’s car from that place to the police station whilst the captain would drive the general’s car. The plaintiff was supposed to be a passenger in his own car.

[32] The general ran to the plaintiff’s car and knocked at the driver’s door. He even hit it with an open hand and instructed the plaintiff to open the door because he was not supposed to drive that vehicle. The plaintiff insisted that he was going away, he started his car and reversed it.

[33] The captain leapt into the vehicle through the open front passenger’s window in order to stop the plaintiff from driving. He (captain) switched the gear lever to neutral and engaged the emergence (hand) brake. The car stopped. He tried to press him against the driver’s door so that he could get out of the car. Indeed he went out of the car. The captain testified that at that stage their intention was to arrest the plaintiff for driving under the influence of liquor, crimen injuria and resisting arrest.

[34] The captain went out of the car through the driver’s door as well in order to assist the general to arrest the plaintiff. The plaintiff broke loose again outside the car where the general was waiting for him and he started to jog away. The captain gave chase by walking fast towards him. There was a police van which blocked his way albeit temporarily.

[35] The captain approached him from the back and held him on his shoulders with both of his (captain’s) hands. He put his (captain) left leg a bit ahead of his (plaintiff’s) left leg. With the captain’s right leg, he tripped the plaintiff’s right leg. Both of them fell backwards and landed on the ground. At that stage, the captain knelt, touched the plaintiff on his shoulders and warned him that he was under arrest for driving under the influence. The reason for the arrest, he said, was to enable him to handcuff him.

[36] The plaintiff then said his leg was broken. As a result of this, he was not handcuffed. The arresting technique which the captain used is applied generally in SAPS to subdue a person to arrest. The steps which the captain took to execute the trip all happened almost at the same time. When the plaintiff fell, half of his body fell on the captain and the other part of his body landed on the ground on the right side of the captain.

[37] He stated that he used minimal force to subdue him to arrest. He did not kick him. In so tripping him, he did not thereby intend to harm him and he did not foresee that he would end up injured. There was no other opportunity to effect the arrest other than at the time when he tripped him. The plaintiff had attempted to evade every attempt to subdue him or stop him from going away.

[38] The plaintiff opened a criminal case against the captain for which he was prosecuted at the Magistrate’s Court. He was found not guilty. A criminal case was also opened against the plaintiff for driving under the influence of intoxicating liquor, crimen injuria and resisting arrest. Blood was drawn from him on the subsequent day after the incident – that was on 6 July 2012. The captain does not know what happened to that case.

Cross-examination on the captain

[39] The following evidence emerged during cross-examination of the witness. Immediately after the plaintiff had insulted the general, it was unnecessary for the police to arrest him for that offence because they could just take down his motor vehicle registration numbers to enable them to trace him in future, should the need arise. When the captain saw the open beer on the console of the car and felt the smell of intoxicating liquor from the plaintiff’s breath, he entertained a reasonable suspicion that he drank liquor. The plaintiff was informed by the general, before he drove his car, that he had to go with the police to the police station to be subjected to a breathalyser alcohol test.

[40] The captain neither saw the plaintiff nor Dijwe drinking liquor, but he wanted to arrest Dijwe also for he had an open beer bottle in his hand. The police ultimately did not subject the plaintiff to the breathalyser test because he was now injured. When the plaintiff switched on his car engine in order to go away, the general had already told him that he was not fit to drive that car but he (plaintiff) had not yet been told that the general would drive his car from the scene.

[41] After the plaintiff broke loose from the two police officers outside his car, he started off jogging away, then thereafter he just walked up to the time when he was tripped. In terms of page 234 of the Trial Bundle (Exhibit A) the prosecutor declined to prosecute the plaintiff in the case which was opened by the general on the night of the incident.

The evidence of the second defence witness

[42] The second witness for the defendants, General Mpembe testified. He confirmed that he accidentally hit the plaintiff’s vehicle with his rear right door in the process of opening it. The plaintiff insulted him with his mother’s private parts. The general requested him: “Do not insult me, go and open a case at the police station”; and further: “Go and get a quotation”. At that stage the plaintiff was still seated behind his vehicle’s steering wheel and he communicated with the general through an open window on the passenger’s side. The general admits that he was irritated by the plaintiff’s remarks.

[43] The captain then informed the general and even showed him the intoxicating liquor which was on the plaintiff’s car console. It was a bottle and a can. The passenger who was in that car was holding a bottle in his hand which looked like a beer bottle. The latter bottle contained something. The captain informed the plaintiff that since he was smelling of liquor and his eyes were bloodshot he was going to arrest him and his passenger for drinking in public. The plaintiff, upon hearing this, became irritated.

[44] When the general realised that the plaintiff was walking towards his car, he walked around on the other side of his car and tried to prevent him from going away. He quickly closed the door. The general tapped with his hands on the bonnet and also on his window telling him not to leave. In the meantime, the captain leapt into the plaintiff’s car through the open window on the front passenger’s side. He tried to disengage the gear lever.

[45] At that stage, the plaintiff started the car and quickly reversed. After the plaintiff had got out of his motor vehicle, the general lowered his hands in order to arrest him. A scuffle ensued and he broke loose from the general. During the scuffle between the plaintiff and the general, the captain joined them and tried to hold him but he broke loose from the captain’s hands also.

[46] The plaintiff then walked away at a pace which is something between running and walking. The captain reached him, he tripped him and both of them fell to the ground. He used an arresting skill in tripping him by holding him with both of his hands on the shoulders and at the same time tripping him. As the plaintiff was walking away from us, a police vehicle which belongs to the Public Order Policing (“POP”) arrived there. The plaintiff was not running to that car as he alleged in his evidence.

[47 Later after the two had fallen to the ground, the general became concerned about the potential exhibits, the beers which had been in the plaintiff’s vehicle. He then saw a person on the driver’s seat of that car who, when asked, denied knowledge of the beers or the beer bottles. The general asked him if he ever saw a passenger in that car who had a beer bottle in his hand. He denied having seen him. That particular person then parked that car properly. At that stage, the general was not aware that the man he was speaking to was Dijwe. He only realised that when Dijwe testified in this civil trial.

[48] When the captain and the plaintiff fell down he said “you are under arrest”. On that very same night, after the plaintiff had been conveyed to hospital, the general and the captain made statements so that the general could open a criminal case against the plaintiff. The general could not find the beer in the plaintiff’s car or in any other vehicle at the scene on the night of the incident.

[49] The captain was never violent towards the plaintiff but he used reasonable force. Any other police officer in the situation of the captain, would have used the same arresting technique – the trip. It is incorrect for anyone to say the captain kicked the plaintiff.

[50] The general admits that at one stage he asked the plaintiff if he knew who he was because he had realised that the plaintiff was treating him with disrespect. It was necessary for the police to arrest the plaintiff because he had already been informed that he was under the influence of liquor. Despite this he continued to drive his car. There were at least two to three attempts to arrest him: He was prevented from driving; thereafter the general tapped on the vehicle; the captain dived into his car through a window and finally, the scuffle between the plaintiff and the general after he got out of his car.

[51] The plaintiff was not supposed to drive from the garage but the general would drive his car. The sole purpose of going to the police station was to use the prescribed apparatus on the plaintiff in order to determine to what extent was he under the influence of liquor. Neither the general nor the captain were ever officially informed that the prosecutor had declined to prosecute the plaintiff in the case where the general was the complainant.

Cross-examination on the general

[52] In cross-examination, the general testified to the effect that he did not personally see either the plaintiff or Dijwe drinking intoxicating liquor on the night of the incident. The general never introduced himself to the plaintiff because he had said he is not interested to know who he was.

The video footage

[53] In the morning of the day of the commencement of the trial, the Court as well as all the parties including their counsel and attorneys, in chambers watched a video footage of the incident of the night of 5 July 2012 at the garage in question. This video footage became part of the evidential material before Court and it was handed in by Ms Mongale as exhibit 1. Somewhere in the middle of the trial I did request all the parties that I wanted to have a look at the video again, in chambers. That we then did. The contents of this video footage which has no sound (one cannot hear the people talking to each other), was not summarized by the Court into the evidence in Court because the parties agreed in chambers that in the main, the footage confirmed the oral evidence of parties before Court. If need be, I will later in the judgment, comment on certain parts of the video footage. What is important is that the video footage does not clearly indicate the feet of both the plaintiff and the captain at the crucial moment of the kick/trip.

Assessment of evidence

[54] All the witnesses testified four years after this incident. In his evidence in chief the plaintiff testified that when he came across the general outside his car he threw him to the ground. During cross-examination he stated that the general helped him to fall down. Later he finally conceded that the general never assaulted him. The plaintiff stated that outside his car, he met the general and the captain emerged from his (the plaintiff) car to assist him (the general) but he did not know at that stage what these two men were trying to do to him. However, later he conceded that when he walked from the two men he knew already that the captain had earlier said he would arrest him. In my view therefore, he was avoiding an arrest.

[55] The next question is whether the plaintiff was going to the POP bakkie which had just arrived when he broke loose from the two officers. In his evidence in chief he set out the sequence of events as follows: He managed to get out of the two men and walked away. He passed the petrol pump and went to the other side. He then saw the police bakkie arriving and he went to it. It is clear therefore that when he walked away from the two officers it was not because he was going to the POP bakkie for help. The bakkie had not yet arrived at the garage. The video footage of the garage also depicts the POP bakkie pulling into the garage after the plaintiff had already passed the petrol pumps. That the plaintiff broke loose from the officers in order to seek help from the other police who had just arrived is, in my view, false. He was evading the

two officers.

[56] The plaintiff stated that he approached the police bakkie because the captain and the general were assaulting him. This allegation of assault is false because the general never assaulted the plaintiff, something which the plaintiff himself conceded in cross-examination. At that stage the captain also had not yet assaulted the plaintiff. The only stage at which the plaintiff was assaulted, according to him, was when the captain kicked him, fracturing his leg.

[57] The plaintiff’s view is that whilst he was standing still busy talking to the occupants of the police bakkie, the captain kicked him. The video footage depicts something to the contrary – when he was tackled by the captain, the plaintiff was still walking towards the bakkie and he was not stationary. The plaintiff testified that the distance which he walked from the two officers to the police bakkie was about sixteen or seventeen paces.

[58] He was asked why he went back to his driver’s seat after the captain had told him that he would arrest him. The plaintiff’s response was that he did that because they had finished talking with the captain. If this is the case, I find the plaintiff’s conduct thereafter surprising. The general suddenly hit his bonnet and the driver’s window, trying to stop him from driving. He did not open his window to hear what the general wanted from him. He locked his car door instead. The captain took an unusual calculated risk of diving into the car through the passenger’s window; yet the plaintiff never asked him what he wanted. He just reversed his car. After he was pushed out of the car, he staggered towards the general. He fell down and both officers tried to hold him. He did not ask anyone of them what was the matter but instead broke loose and walked away. In my view, any person who did not know what the two men wanted, would have inquired. The plaintiff did not do that. It is clear that he was deliberately avoiding the two officers.

[59] The plaintiff made two statements to the police. The first was on 6 July 2012 at 06H00 and the subsequent one on 7 March 2013 at 09H04. In the first statement he stated that after the captain leapt into his car, he grabbed him on his neck and started to beat him all over the body. In the second statement he did not mention that the captain assaulted him all over his body when he was inside his car. During cross-examination, Ms Mongale referred the plaintiff to his statement and asked him if indeed the captain did hit him all over his body inside his car. He confirmed that he did hit him as reflected in the first statement. Counsel then referred him to his second statement where no mention was made of the assault “all over the body” after the captain had entered the plaintiff’s car. He conceded that in the March 2013 statement he did not mention that assault in his car.

[60] Counsel then referred him to his evidence in chief before this Court which he had given the previous day and pointed out to him that in chief, he had never told Court that the captain hit him all over his body whilst he was still behind the steering wheel. Ms Mongale asked him which of these two versions was the truth. His reaction was that both versions are the truth. Later during cross-examination he said on 6 July 2012 when he made his first statement he was not in his “right state of mind” because he had just been awoken where he was sleeping. He gave this last response when further contradictions were pointed out between his two statements. In my view, this is just an afterthought because he earlier confirmed, under oath in this Court, that the captain beat him all over the body inside his vehicle.

[61] In re-examination the plaintiff testified that he approached the police van which had just arrived at the garage, in order to ask for help seeing that his life was in danger. The truth is, there was no danger threatening the plaintiff. My view is that he was avoiding to go with the police to the police station or he was avoiding arrest. I take judicial notice of the fact that the distance from that garage to the nearest police station (Mahikeng Police Station) is less that two kilometers. The Court finds that the plaintiff was not an honest witness because he contradicted himself.

[62] Dijwe testified that as the plaintiff was alighting from his vehicle, at the stage when the captain was already inside the plaintiff’s vehicle, he saw a police van behind them, and he (the plaintiff) went to it. This evidence differs with the plaintiff’s account of the sequence of events at the scene. The video footage does not depict any police van behind the plaintiff’s car when he alighted from it. That van pulled into the garage area only after the plaintiff had passed the petrol pumps. In his evidence in chief, Dijwe did not testify about what happened immediately after the plaintiff got out of the car where he met the general and they were subsequently joined by the captain. He seems not to have seen what happened between the trio at that stage.

[63] Under cross-examination Dijwe stated that what caused the captain to enter the plaintiff’s car was the general’s anger. He said that he did not hear the general asking the plaintiff to get quotations for the car. When he was told that even the plaintiff admitted that the general said he should go and get quotations, Dijwe insisted that he does not believe that the general could have said that because he was very angry. A denial of such a proven fact clearly shows that Dijwe is a biased witness. When he was asked about the discussion between the general and the plaintiff which took place next to the car’s rear left door, Dijwe stated that he never saw or heard any discussion between the two.

[64] His evidence is that when he parked the plaintiff’s car at the garage, the beers were still in the car. He does not even know what happened eventually to the beers. He does not recall that the general asked him about the beers after the plaintiff had broken his leg.

[65] I am satisfied that the general did talk to Dijwe and asked him about the liquor and the passenger who had been in that car earlier. Unfortunately, at that stage the general could not recognize Dijwe as the passenger who had been in the plaintiff’s car earlier. It becomes apparent that the beers were hidden or thrown away at the scene. The only person who was in charge of the plaintiff’s car at that stage was Dijwe. He had the plaintiff’s car ignition key. This Court finds that no one else except Dijwe disposed of the liquor and its containers. In my view, he did so in order to derail any future case against the plaintiff about drinking in public or drunken driving. When the plaintiff got out of his car finally, Dijwe knew that the cause of the problem between him and the police was the liquor. His conduct in disposing of the liquor borders on an attempt to defeat the ends of justice. What he did at that garage – disposing of the beers and subsequently lying to the general – suggests that his honesty and impartiality as a witness are questionable.

[66] The captain and the general corroborated each other and there are no material contradictions in their evidence. Having said that, I find it difficult to imagine how a humble trip by the captain would have fractured another man’s leg. What is worse is that it was the plaintiff’s right leg and not the left one which the captain says he pushed sideways with his right leg. At that stage, the captain’s left foot had been placed on the ground just in front of the plaintiff’s left leg. So the former’s left leg constituted a barrier to the plaintiff’s left leg if he attempted to move forward. At that stage the plaintiff was no longer walking fast as he did earlier. He was about one metre away from the police bakkie. In my view, it is highly unlikely under these circumstances that a trip could have caused the fracture. The captain must have delivered a kick to the plaintiff’s left leg.

The Law

[67] Section 49(2) of the Criminal Procedure Act[1] provides:

“If any arrestor attempts to arrest a suspect and the suspect resists the attempt, or flees, or resists the attempt and flees, when it is clear that an attempt to arrest him or her is being made, and the suspect cannot be arrested without the use of force, the arrestor may, in order to effect the arrest, use such force as may be reasonably necessary and proportional in the circumstances to overcome the resistance or to prevent the suspect from fleeing, but, in addition to the requirement that the force must be reasonably necessary and proportional in the circumstances, the arrestor may use deadly force only if-

(a) the suspect poses a threat of serious violence to the arrestor or any other person; or

(b the suspect is suspected on reasonable grounds of having committed a crime involving the infliction or threatened infliction of serious bodily harm and there are no other reasonable means of effecting the arrest, whether at that time or later.”

[68] In Ex Parte Minister of Safety and Security: in re S v Walters[2], the Court distilled the following requirements of section 49:

“(a) The purpose of arrest is to bring before court for trial persons suspected of having committed offences.

(b) Arrest is not the only means of achieving this purpose, nor always the best.

(c) Arrest may never be used to punish a suspect.

(d) Where arrest is called for, force may be used only where it is necessary in order to carry out the arrest.

(e) Where force is necessary, only the least degree of force reasonably necessary to carry out the arrest may be used.

(f) In deciding what degree of force is both reasonable and necessary, all the circumstances must be taken into account, including the threat of violence the suspect poses to the arrester or others, and the nature and circumstances of the offence the suspect is suspected of having committed; the force being proportional in all these circumstances.

(g) Shooting a suspect solely in order to carry out an arrest is permitted in very limited circumstances only.

(h) Ordinarily such shooting is not permitted unless the suspect poses a threat of violence to the arrester or others or is suspected on reasonable grounds of having committed a crime involving the infliction or threatened infliction of serious bodily harm and there are no other reasonable means of carrying out the arrest, whether at that time or later.

(i) These limitations in no way detract from the rights of an arrester attempting to carry out an arrest to kill a suspect in self-defence or in defence of any other person.”

[69] The learned author Jonathan Burchell[3] holds the following view in relation to the reasonable test:

“(a) Reasonable/Propotional Test

The new version does specifically stipulate that the force used in either overcoming the resistance of an arrestee or preventing his or her escape must be ‘reasonably necessary and proportional in the circumstances to overcome the resistance or to prevent the suspect from fleeing’. This general limiting factor applies to all use of force, including the use of deadly force. The obvious value of a proportional/reasonable criterion is that a court has to weigh in the balance of force used by the arrestor, the requirement that the suspect has been made aware of the fact that he or she is to be arrested, the need for oral warning or warning shots (see Matlou v Makhubedu), the ability of the suspect to escape (for instance, his or her agility on foot or climbing) and, specifically in the case of an arrestor using a firearm, whether such use of the firearm involves a risk of harm to innocent bystanders and/or whether the arrestor is, threatened. The reasonableness criterion also incorporates an emphasis on the reality that the discretion to use or not to use force (including deadly force) must be assessed in the circumstances, not in the comfort of a judicial armchair.”

(Footnotes omitted)

[70] The onus lies on a defendant who admits the “assault” to prove the lawfulness of the “assault” and arrest.[4] In the present case, the captain and the general deny the assault but they admit that there was a tackle which is an arresting skill which was employed on the plaintiff to subdue him to arrest. In my view therefore, the defendants must allege and prove:

“(a) that the captain acted lawfully; or

(b) that the captain had reasonable grounds for suspecting the commission of an offence by the plaintiff, on which grounds he was by law entitled to arrest the plaintiff;

(c) that the captain attempted to arrest in a manner prescribed by law;

(d) that the plaintiff attempted to prevent or escape arrest; and

(e) that the force employed by the captain was reasonably necessary to bring about the arrest.”[5]

Summary and conclusion

[71] The captain had a reasonable suspicion that the plaintiff had consumed intoxicating liquor because

(i) there were beers in the plaintiff’s car console

(ii) the plaintiff’s eyes were bloodshot; and

(iii) the plaintiff’s breath had a smell of intoxicating liquor.

[72] The captain and the general corroborated each other on all material facts. Despite their denial that the plaintiff was kicked, the Court is satisfied that, generally their version is plausible and in conformity with the video footage that the plaintiff was told not to drive his motor vehicle but to accompany them to the police station.

[73] The plaintiff, as a law enforcement officer, knew what steps were to be taken once a member of the SAPS or Traffic Police suspects someone to be under the influence of intoxicating liquor whilst he/she is driving a motor vehicle on a public road/place. The plaintiff did everything within his powers to disregard the instruction of the police. He locked his car door and told the police that he was going. Had it not been for the captain, who leapt into his car and interfered with the steering mechanism, the plaintiff would have driven away, leaving the police at the scene. He was reckless about the safety of the captain whose upper body was inside his car and his lower body – from the waist, outside the car. He reversed his vehicle with the officer hanging with his waist on his door. Outside his car he did not change his mind but broke loose from the two officers. This whole spectacle, viewed from the video footage, is reminiscent of a cat and rat game.

[74] Once he had disregarded the initial instruction of the police not to drive; once he drove the vehicle by reversing it in his alleged condition; once he resisted all the efforts by the officers to restrain him, the captain was legally entitled to arrest him. The use of force, in the form one kick to the leg was reasonably necessary to effect the arrest. In my view, this force was commensurate with the plaintiff‘s behaviour up to that stage. It was absolutely necessary for the police to subject him to a breathalyser within two hours. Had he disappeared from the scene on foot, the whole purpose of the test would fail.

[75] In the premise, the Court is of the view that the attack by the captain on the plaintiff was justified in terms of section 49(2) of the Criminal Procedure Act. The plaintiff’s attempt to recover any damages from the captain or the Minister must fail because he is the author of his own misfortune.

Order

[76] The following order is made:

The plaintiff’s claim is dismissed with costs.

______________

SAMKELO GURA

JUDGE OF THE HIGH COURT

NORTH WEST DIVISION

APPEARANCES:

DATE OF HEARING:

26 JULY 2016

DATE OF JUDGMENT:

21 OCTOBER 2016

COUNSEL FOR THE PLAINTIFF: ADV D. SMIT

COUNSEL FOR THE DEFENDANTS: ADV M. MONGALE

ATTORNEYS FOR THE PLAINTIFF: KGOMO MOKHETLE INC.

ATTORNEYS FOR THE DEFENDANTS: THE STATE ATTORNEYS

[1] Act 51 of 1977

[2] [2002] ZACC 6; 2002 (4) SA 613 (CC) at para 54

[3] Principles of Criminal Law, Third Edition at page 313 para (a)

[4] Malahe v Minister of Safety and Security [1998] ZASCA 64; 1999 (1) SA 528 (A); Macu v Du Toit en Ander 1983 (4) SA 629 (A)

[5] Amler’s Precedents of Pleadings; Sixth Edition: LTC Harms at page 46