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NC High Court dismisses unlawful arrest claim

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The five claim they were playing cards when they were arrested.

A CIVIL case against the Minister of Police by five members of the public who were arrested for public violence following an illegal protest in Kuruman, has been dismissed in the Northern Cape High Court.

Obeleng James Lingen, Tebogo Victor Petrus, Obakeng Grannet Dipone, Paseka Panas Lingen and Othusitse Matthews Masube were arrested on charges of public violence following a protest that took place on the corner of Hotazel and Vergenoeg streets in Kuruman on January 20, 2014.

They were detained at the police station and released two days later. The charges against them were withdrawn and on September 5, 2019, the plaintiffs approached the Northern Cape High Court for damages in respect of unlawful arrest and detention.

In their evidence they claimed that they were playing a game of cards known as “casino” in the yard of the first plaintiff, Obeleng Lingen. 

They stated that while playing, they noticed a crowd running along the road followed by police officials. The police officials stopped at Lingen’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. 

“All the plaintiffs testified,” Acting Judge O’Brien said in his judgment. “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. 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.”

The police pleaded that the arrest and detention of the plaintiffs were lawful in terms of the Criminal Procedure Act. 

“The versions advanced by the respective parties are diametrically opposed,” Acting Judge O’Brien pointed out. “The police claim that the plaintiffs had committed acts of public violence, while the plaintiffs claim ignorance to it. The police were called to a scene of unrest. At the scene they found members of the public blocking a T-junction with rocks, tree branches and burning tyres. In an attempt to disperse the unruly crowd who were chanting and singing songs, the police approached them. The crowd had pelted stones at the police and the plaintiffs were arrested.”

Summing up the testimony of the police, Acting Judge O’Brien said that 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. 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.

“Constable Modise of POPs (Public Order Policing unit) 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.

“Constable Kelokilwe of the K9 unit in Kuruman testified that he 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.

“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.

“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. 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.

“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.”

Acting Judge O’Brien found that 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.”

He pointed out, however, that the plaintiffs were unimpressive as witnesses.

 “They contradicted each other, and their evidence was unconvincing. Furthermore, their versions are improbable” 

He added that the plaintiffs were completely unsatisfactory witnesses.

“‘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. 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. Given the simplicity of the arrest, this court finds it unlikely that the police had a false motive to incriminate the plaintiffs. 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.

“For the above reasons, the court rejects the plaintiffs’ versions and finds that they were arrested in the manner and for the reasons set out in this judgment.

“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,” Acting Judge O’Brien ruled.