CASE NO. 795/2000 IN THE HIGH COURT OF SOUTH AFRICA (BOPHUTHATSWANA PROVINCIAL DIVISION) In the matter between: and

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1 795/2000 CASE NO. IN THE HIGH COURT OF SOUTH AFRICA (BOPHUTHATSWANA PROVINCIAL DIVISION) In the matter between: MARCEL ANDREW MOLEMA PLAINTIFF and MEMBER OF THE EXECUTIVE COUNCIL FOR SAFETY & SECURITY NORTH WEST PROVINCE CAPTAIN VICE 1 ST DEFENDANT 2 ND DEFENDANT CIVIL JUDGMENT MOGOENG J. [1] This is an action for damages instituted by Mr Marcel Andrew Molema ( Marcel ), against the MEC for Safety and Security, North West Province and Captain Vice ( Vice ), a member of the South African Police Service (SAPS). It is divided into four claims, namely, (i) claim 1 - assault; (ii) claim 2 - unlawful arrest; (iii) claim 3 - assault; and (iv) claim 4 - unlawful detention. 1

2 [2] It was agreed at the commencement of the proceedings that the onus of proof in respect of claims 1 and 3 would be borne by Marcel and that the Defendants would have to discharge the onus in respect of claims 2 and 4, and that the merits be dealt with first and quantum later. I ordered accordingly. [3] The parties versions are mutually destructive. However, certain facts have become common cause and/or are undisputed. I set them out below: 3.1 Vice s father-in-law was robbed of a safe containing an unspecified amount of money in a farm around Mafikeng; 3.2 As a result, a case of robbery was duly reported at the relevant police station; 3.3 On 28 February 2000 at about 03h00 Vice and other members of the police force arrived at Marcel s home. The stated reason for the visit was a search for a safe and money belonging to Vice s in-laws; 3.4 Marcel and his younger brother, Gavin, and Tebogo Lechuti ( Tebogo ) were apprehended. Tebogo was released on the same day at Kgomongoe Building. The two brothers were taken to Hartebeesfontein police station for detention; 3.5 While at Hartebeesfontein these brothers were allowed to 2

3 call their brother in Mafikeng and Marcel was allowed to visit Dr Stevens on the day of the arrest. 3.6 The injuries which Marcel had, and must have sustained during and/or after his arrest but while in police custody, were a swollen left eye, perforated left eardrum, swollen left cheek and a bruised/scratched right knee which was even bleeding. These were observed by both Dr s Stevens and Malan as well as Inspector Mekgwe. 3.7 Marcel and Gavin were detained on 28 February 2000 at 08h25 and released on 01 March 2000 at 13h05. This means that they were left in detention for about ten hours after the expiry of 48 hours since their arrest. I turn now to the evidence in so far as it relates to the balance of the issues which are in dispute. [4] Marcel testified in the terms that follow. Vice introduced himself upon his arrival and he was not aggressive. His rights were never explained to him. He undertook to show the police the house where the girlfriend of Mojaki Lechuti ( Mojaki ) lived. [5] As they were proceeding to the vehicles, so as to go to that place, Vice struck him behind his head with an open hand. This blow caused him to fall to the ground. He was surprised since this attack was unprovoked. They got to the house in question but Mojaki was not there. A white policeman, other than Vice, 3

4 smacked him across his face once or twice alleging that he was concealing the whereabouts of Mojaki. [6] They then proceeded to Amos House. All policemen, excluding Vice, assaulted him. A certain white policeman hit him with clenched fists several times on his left ear, eye and cheek. Another policeman hit him with an iron rod on his back and waist and right knee several times. He became unconscious. He was then dragged to the combi where his hands were tied, his head was covered with a black cloth and electric shocks were administered to him on his hip and later on his right foot. The police kept on asking him where the safe and the money were during the torture. Over and above the injuries which are not disputed, his hip was sore and swollen and his body was aching as a result of the assault. [7] Gavin s evidence accords with that of Marcel except as would be stated hereafter. He testified that when Mojaki was not found at his girlfriend s house, Vice and three policemen hit Marcel with an iron rod on his back several times. He also said that at Amos House, Vice smacked Marcel whereas the others struck him with an iron rod all over his body as if they were mad. Marcel became unconscious after this attack. He was limping and was dragged by the police from around the corner of Amos House where he had been attacked. All the blows delivered with the rod were forceful and hard. [8] Tebogo said that Vice delivered hard blows to Marcel s head and back several times while black policemen were holding 4

5 him, at the home of Mojaki s girlfriend. He also said that Marcel was struck with an iron rod at Amos House and he appeared to be unconscious. [9] Anis testified that the police smacked Marcel across his face while they were in the backyard of their home and again smacked him behind his head when they were about to leave the premises. As a result of the latter blow, Marcel staggered. He nearly fell but certainly did not fall. Marcel then closed his case after leading the evidence of Inspector Mekgwe, Dr Stevens and Dr Malan regarding the injuries that they saw on his body. [10] The first defence witness was Vice whose evidence is set out below. He introduced himself as Captain Vice of the Murder and Robbery Unit, Klerksdorp, upon his arrival at Marcel s home. He told Marcel that he was a suspect in a robbery case in which his father-in-law was the complainant. Marcel was drunk. As he was explaining to Marcel that he had come to arrest him and also explaining his rights to him, Marcel insulted and grabbed him. They grabbed each other, wrestled with each other, and fell to the ground on their bellies as Vice indicated. Marcel, who was then in front of Vice, fell first and Vice after him. Vice was constrained to use reasonable force to bring Marcel under control. He, inter alia, applied what he referred to as FBI-type tactics to subdue Marcel. He then handcuffed Marcel from behind, put him in a police combi and then explained his rights to him again. 5

6 [11] Marcel undertook to show them the place of residence of Mojaki s girlfriend since they were looking for Mojaki. They went there but did not find Mojaki. Thereafter they went to the house of Mojaki s lawyer, then to Amos House in Mafikeng, where the detectives offices are located, and lastly to the Murder and Robbery offices at Kgomongoe Building in Mmabatho. Tebogo was released and Marcel and Gavin were taken to Hartebeesfontein police station. [12] Vice testified that Marcel was at no stage physically attacked by any member of the SAPS in his presence. He did not dispute the observations made by Mekgwe and the doctors regarding Marcel s injuries. He faintly suggested that, the injuries could have taken place at the time when Marcel was resisting arrest and when they we wrestling and falling. He said he really did not know for certain how Marcel sustained those injuries. [13] Inspector Mothofo testified that Vice introduced himself, explained the purpose of their visit as well as the rights of the suspects. He denied that Marcel was beaten up as alleged by Marcel and his witnesses. According to him, Marcel was intoxicated and aggressive. He resisted arrest, grabbed Vice and he fell twice. He said that he did not notice any injuries on Marcel even as he handed him over to Inspector Mekgwe at Hartebeesfontein. The defence then closed its case. [14] Mrs Gutta, on behalf of Marcel, submitted that since Marcel s witnesses corroborate him on the assault, the Court must find that claims 1 and 3 had been proven on a preponderance of 6

7 probabilities. Furthermore, the evidence of the medical doctors and Inspector Mekgwe have clearly established the existence of the injuries which were sustained during the arrest and detention. The injuries could, so goes the submission, only have been caused by the police as testified to by Marcel, Tebogo, Gavin and Anis. Mrs Gutta submitted, in respect of claim 2, that there was no reasonable suspicion that Marcel had committed the robbery that he was arrested and detained for. Mrs Gutta also submitted that the legal rights of Marcel to apply for bail were not explained, he was not told why he was arrested. As regards claim 4, Mrs Gutta submitted that Marcel was detained beyond 48 hours and was released about 5 hours after the expiry of the 48 hour period. This, according to Mrs Gutta, rendered Marcel s detention unlawful. Mr Hendricks, for the Defendants, submitted that Marcel was not assaulted and that his arrest and detention were lawful. [15] I was not impressed by Marcel, Gavin, Tebogo and Anis as witnesses. They made a very poor impression on me and I am satisfied that they are not credible witnesses. Some of the key unsatisfactory features in their evidence are set out below. Anis testified about two incidents in which Marcel was smacked, while still at his house, which no other person, including Marcel, knew anything about. Marcel, Tebogo and Gavin all testified that several hard blows were delivered to the back of Marcel with an iron rod. However, no trace of an injury which could be said to have been caused by an iron rod was found. In fact, no injury whatsoever was found on the head and back of Marcel. Dr Stevens, who examined the unclad body of 7

8 Marcel on the day on which those injuries were allegedly inflicted, did not see any such injuries and neither did Dr Malan two days later. Furthermore, Marcel neither complained to any of the doctors about any pain on his back, head, hip nor foot. He did not even alert Dr Stevens to the right hip which he said was sore and swollen at the time of the examination by Dr Stevens. This is a fundamental flaw in the evidence of Marcel. None of the witnesses can be heard to claim that he mistakenly thought hard blows with an iron rod or baton were delivered to the body of Marcel several times. It is all or nothing. These witnesses were all very emphatic about the plurality of the strikes and their viciousness. The absence of a trace of any of them in itself does a telling blow to Marcel s case. But this is not all. Marcel, Tebogo and Gavin all said that Marcel became unconscious after the assault at Amos House. This is obviously irreconcilable with the fact that he could still limp as he came from around the corner of Amos House to the combi. How can a person who has fainted be limping at the time of his unconsciousness? Furthermore, how can a person who is being dragged limp? Marcel said that he was smacked by a white policeman once or twice at the house of Mojaki s girlfriend. That white man is not Vice. Gavin said Vice and others assaulted Marcel with an iron rod. Tebogo said that only Vice hit Marcel with what looked like an iron rod. These are also material contradictions between their versions. The victim, Marcel, said someone other than Vice smacked him. He never said anything about the use of the more painful rod at that stage. Gavin and Tebogo were so eager to strengthen Marcel s case that they said an iron rod was used at the house 8

9 of Mojaki s girlfriend. I find all these to be lies and I am satisfied that all of these witnesses were lying. There are other reasons for arriving at this conclusion that I do not consider necessary to burden this judgment with. [16] Vice and Inspector Mothofo gave their evidence exceptionally well. There are no material contradictions in their evidence and I find them to be credible witnesses. [17] Over and above a favourable credibility finding that I make about the Defendants witnesses, the probabilities also favour the Defendants for the reasons that follow: 17.1 On the evidence of Marcel and some of his witnesses, Vice introduced himself, indicated that he was looking for a safe and money that belonged to his father-in-law. It is improbable that he did not at the same time mention that a robbery took place, that Marcel, among others, was suspected of having been involved in the commission of that robbery, that he was arresting him for that reason and that he did not explain Marcel s legal rights. The context in which Vice introduced himself and stated what he was looking for coupled with the fact that Marcel exercised the right to telephone his next of kin and the right to see a doctor upon his arrival at Hartebeesfontein, makes it even more probable that Marcel s rights, including those that he exercised on the same day of his arrest, were explained to him. This is also borne out by an entry, to the effect that his rights were explained to 9

10 him, which was made in the Occurrence Book at the time of his detention Gavin said that as Vice smacked Marcel, the latter almost fell. Marcel himself said that he fell. Vice also said that Marcel, albeit as a result of a different cause, fell to the ground. Vice and Mothofo said that Marcel resisted arrest aggressively. This resulted in a wrestling of sorts between him and Vice which led to both men falling to the ground and on their bellies. This, in my view, is the probable cause of Marcel s knee injury as well as the other injuries that he sustained. It is important to bear in mind that the injuries to Marcel s eye, ear and cheek are all on the left-hand side. The question is whether this was caused by several blows with clenched fists as alleged by Marcel or something else. I am satisfied that on the probabilities these injuries must have been sustained at the time when Marcel fell to the ground, or that while he was on the ground he must have, in his drunken stupor and while continuing to resist arrest, hit the left side of his head against some object or the ground itself. These injuries could also have been sustained during the scuffle preceding or following the fall. I am also satisfied that these injuries were probably caused by a single blow to the left side of the head under the above or related circumstances. They were definitely not caused by the alleged assault. Besides, as I said above, there is not a single credible witness who testified about the injuries on Marcel s behalf. 10

11 17.3 It is highly improbable that Marcel who says that he cooperated with the police would have been singled out for assault out of all the other suspects like Gavin. If they assaulted him to force information out of him, as he says the police kept on asking him about the safe and money as they assaulted and tortured him, why did they not do the same to Gavin? Besides, how could the experienced police at the level of Captain and Inspector have been so stupid as to inflict visible injuries on Marcel in the presence of Gavin and Tebogo and then immediately release Tebogo risking the possibility of him telling other people what the police had just done to Marcel? How could they risk their professions by committing such a criminal offence so openly in the new South Africa? How could they assault Marcel in the presence of Anis and Marcel s sister, and later apparently in the presence of Mojaki s girlfriend and her father? This is highly improbable. [18] On the summons, the arrest of Marcel is alleged to be unlawful on the basis that it was carried out without a warrant. Such an arrest is lawful in terms of s 40(1)(b) of the Criminal Procedure Act 51 of 1977 if the arresting officer reasonably suspects the suspect of having committed an offence listed in schedule 1 of the Act. Robbery is an offence so listed. Vice had received information that Marcel, two of his brothers and Mojaki were involved in the robbery of which his father-in-law was a victim. He interviewed the informer before the arrest was carried out. 11

12 I am satisfied that his suspicion was reasonable within the meaning of s 40. Mrs Gutta sought to deviate from the summons by alleging that the suspicion was not reasonable, and that Marcel was not informed of his right to apply for bail. None of these were pleaded. Be that as it may I am satisfied that all the rights were explained and that the suspicion to arrest was reasonable. Regarding why the arrest was effected without a warrant, Vice explained that since he received information about the involvement of Marcel and others on Sunday afternoon and he knew of no Magistrate they could obtain a warrant of arrest from at that time, he decided to arrest the suspects without the warrant. [19] The summons attacked the lawfulness of the detention on the basis that it was without any justification or excuse. The Defendants have explained that Marcel was arrested and detained on a reasonable suspicion of involvement in the commission of robbery. This is a lawful ground for detention particularly for a serious offence like robbery. Contrary to the summons, Mrs Gutta then shifted the attack, on the lawfulness of the detention, to the fact that the Defendants did not cause Marcel to appear before the Magistrate before the expiry of 48 hours of his detention. This is not part of Marcel s case before me. In any event Marcel was released about ten hours after the expiry of the 48 hour period envisaged by s 50(1)(c). Furthermore, the provisions of s 50 are in my view, not peremptory but directory. This follows from the provisions of this section, particularly subsection (1)(d). The Legislature is not strict with regard to the observance of the 48 hours. This is 12

13 evident from the leverage given to the State in the stated exceptions allowing the State to have until the end of the next day after the expiry of the 48 hours before presenting the defence before Court. The lower Court in my position would have, in my view, a discretion to excuse the further detention had this issue been specifically pleaded. The import of s 50 is, in my view, that the State would and should ordinarily use its right to further detain an arrested person if the detainee is not brought before Court within 48 hours of his or her arrest. In other words, if the continued detention is not excusable on any of the exceptions specifically provided for in s 50(1)(d), then he or she is entitled to be released since no acceptable or recognised legal basis exist for his or her continued detention. Marcel was released on the very same day on which he should have appeared in court and the mischief that s 50 was intended to address disappeared with his release. That mischief, I may add, is the notorious long or indefinite detention without trial of yesteryear. [20] In view of the aforegoing, I am satisfied that Marcel failed dismally to discharge his onus in respect of claims 1 and 3 on a preponderance of probabilities. On the other hand the Defendants proved the lawfulness of the arrest and the detention (claims 2 and 4 respectively) on a balance of probabilities. All four claims, therefore, fall to be dismissed. I turn now to the question of costs. [21] Ordinarily, costs follow the result. However, I believe that the police, of all people must take the lead in the observance of the 13

14 spirit and the terms of the law. Whereas I am alive to the fact that it has never been part of Marcel s case that the detention was unlawful for the reason that he was kept for longer than 48 hours, the reality of the situation is that Marcel was indeed detained for much longer than 48 hours since his arrest, contrary to the spirit of s 50(1)(c). As a mark of this Court s disapproval of the police s continued detention of Marcel beyond the 48 hour period, the Defendants, though successful, would not be entitled to their costs particularly because there is no explanation whatsoever for the delay. [22] In the result, the following order is made: (b) (a) all four claims are dismissed; and there will be no order as to costs. M.T.R. MOGOENG JUDGE OF THE HIGH COURT 14

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17 APPEARANCES DATE OF HEARING : MARCH 2002 DATE OF JUDGMENT : 08 MARCH 2002 COUNSEL FOR PLAINTIFF : ADV N. GUTTA COUNSEL FOR DEFENDANTS : ADV R.D HENDRICKS ATTORNEYS FOR PLAINTIFF ATTORNEYS FOR DEFENDANTS : SMIT STANTON & MOTLHABANI INC : THE STATE ATTORNEY