In a groundbreaking judgment which will pave the way for the public claiming damages against the police for unlawful conduct, a judge has ruled that if the police do not provide justification for their unlawful actions, the aggrieved public no longer needs to give evidence to prove the cases.
This judgment in the North Gauteng High Court followed a damages claim by two men - Kgaogelo Motsei and Kutlwano Phefadu - for unlawful arrest and detention as well as assault.
While they instituted the court action, Judge Selby Baqwa called on the police to prove that their actions were lawful when they arrested the pair on September 2, 2012.
After hearing evidence from the policemen involved, the judge concluded the police could not justify their unlawful conduct. Without hearing the evidence of the complainants, the judge found in their favour and ruled that the police were 100 percent liable for the damages the two could prove they suffered.
Lawyer Tim Vlok, who appeared for Phefadu, said this case was unique and reportable (would be used as case law in future). “There was last case law about 100 years ago which confirmed this position and this will now pave the way forward for similar cases.”
Vlok said while it wouldno longer be necessary for complainants to prove that the police acted unlawfully, this route could only be followed if the police admitted that they did arrest a person. In cases in which they denied an arrest, it would still be up to the complainant to prove the contrary.
The court heard that four policemen were patrolling in the Mabopane area when they came upon a group of people walking along the Lucas Mangope Highway.
As they stopped to search them, a car stopped on the opposite side of the road. The occupants walked over to the men being searched by the police and accused them of stealing a watch. The two groups then accused each other of possessing a firearm.
No firearm could be found, but an altercation between the police and the two complainants ensued. The police claimed the two tried to prevent them from searching their car and they thus arrested them for interfering with police business.
Judge Baqwa said that on the evidence of the police, they did not enquire that night as to exactly who possessed the firearm and there was no consent given to the police to search the car.
“In the circumstances, any purported suspicion leading to their arrest could not have been formed on reasonable grounds.”
He said the evidence of the police witnesses was riddled with contradictions.
The amount of damages due to the pair will be decided later.