Background

Unlawful Police Assault

If you suspect that the police have unlawfully assaulted you it is important to open a docket at the SAPS and get a J88 completed by a medical practitioner as soon as possible after the assault.

In the recent judgment wherein, we successfully brought a claim on behalf of our client against the Minister of Police, 1 the defendant averred that it had no knowledge of the incident and denied the assault. The challenge was thus to prove that the people involved were members of the SAPS and were acting within the course and scope of their duties.

The individuals who entered the client’s house were looking for an unlicensed firearm. When he could only produce proof of a licensed firearm, they started assaulting him. After the assault, the client was placed in a marked police vehicle and driven to a different location where the police found and arrested a young man with a firearm. The people then left with the young man who was arrested and left the client behind to find his own way home.

The client testified that he later learned that the young man was being detained at a police station.

The plaintiff (our client) testified, and he led evidence of two other witnesses, one witness had witnessed the police assaulting the client in the client’s home first hand and the other witness observed the events at a distance of about 10 meters in his home.

The evidence from the state was that the investigating officer was directed by his supervisor to hold an identity parade but that the investigating officer could not because police officers who work outside of the police station are required to make entries in the occurrence book and when he checked the occurrence register no entries had been made.

The court noted that the state however did not explain why it did not investigate and find out which police officers had been involved in the arrest and detention of the young man who was arrested as surely the investigating officer who gave evidence on behalf of the state would have known that documents and registers relating to the arrest and detention of the young man could have shown which police officers were involved.

The court found that the evidence of the client and his witnesses showed in varying degrees that there were four persons who said they were police officers, they used handcuffs, and some of them were in uniform similar to that of the police, and one of the two vehicles they used, had markings similar to markings of the police.

The court also noted that there was no indication that people could have been members of a different police force other than the SAPS, the duties of the members of the SAPS are exclusive to them and it is only the police service that can conduct raids in the manner the four persons did.

The court also found that if it is proved that the four persons were police officers, the fact that some were in uniform, the vehicles they used at least one being a marked police vehicle, their use of handcuffs, and their entire mission to recover illegally possessed firearms would cumulatively show they were acting in the course and scope of their employment.

The court deduced that the client produced evidence establishing objective facts and that the client contended that the only reasonable inference to be drawn from the objective facts was that the four persons were police officers. However, as stated by the court the plaintiff did not prove that the vehicle was a police vehicle nor did he prove that the uniform worn by two of the four people were police uniforms. Therefore, there was no direct evidence speaking to the fact the people were in fact police officers, and as the court only had circumstantial evidence the court had to consider the cumulative effect of all the items of circumstantial evidence.

In coming to its decision, the court referred to “two cardinal rules of logic” from the famous decision of R v Blom 2 . This is the standard of evidence an inference must meet in criminal proceedings. To further explain the different standards of proof, in civil proceedings the inference sought to be drawn must be consistent with the proven facts, but it need not be the only reasonable inference: it will be sufficient if it is the most probable inference. 3 In criminal proceedings, as stated in R v Blom 4 the first rule is that the inference sought to be drawn must be consistent with the proven facts. The second rule is that the proved facts should be such that they exclude every reasonable inference save the one sought to be drawn. The second rule is in line with the fact that in a criminal case, the state must furnish proof beyond a reasonable doubt. 5

Using the standard of a preponderance of probabilities the court concluded that it was possible that the four people were police officers but the fact that when the plaintiff produced and showed them his licenced firearm, they did not take it and stated that they wanted an illegal firearm strengthened the inference that they were indeed police officers and therefore the probabilities favoured our client more.

Please find a link to the full judgment here: Ngubane v Minister of Police (4808_2017P) [2023]
ZAKZPHC 87 (23 August 2023).html

Please note that you have limited time within which to claim against the state. You have six (6) months from the date of incident occurred to deliver a Notice of Intention to Institute Legal Proceedings against certain organs of state (a “Statutory Notice”) 6 . Subject to provisions of Chapter III of the Prescription Act 68 of 1969 summons should be served within a three (3) year period from the date of the incident.

One can request condonation for the late delivery of a Statutory Notice but not for a prescribed claim. Therefore, it is paramount that you contact a legal professional as soon as possible after such an incident with the SAPS to obtain advice on a potential claim.

Contact Rob Menzies and Associates Inc. for a free-of-charge interview into whether you have a viable claim for brutality by members of the SAPS and for us to explain our terms of service.

1 Ngubane v Minister of Police (4808/2017P) [2023] ZAKZPHC 87 (23 August 2023)
2 1939 AD 188 at 202-203
3 AA Onderlinge Assuransie Bpk v de Beer 1982 2 SA 603 (A) as discussed in PJ Schwikkard & SE Van der Merwe Principles of Evidence (2016) 578
4 Blom (n 1) 202-203
5 Schwikkard (n 2) 579
6 Section 3 of the Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002