7 October 2022
An Eastern Cape trader has been awarded damages of R240,000 after he was accused of breaking lockdown rules and arrested while driving his sick son to a doctor, assaulted and detained by police for 40 hours.
The man, who helped his father with running a dealership in Ntabankulu, had an essential services permit, which allowed him to travel and trade during the lockdown.
In his claim against the Minister of Police, heard by Mthatha Deputy Judge President Zamani Nhlangulela at the High Court in Mthatha, the man said he was arrested at a roadblock on 1 April 2020 because his 17-year-old son, who was with him, did not have a permit. Their names have been redacted from the judgment.
Earlier that day, the man bought stock in Kokstad in KwaZulu-Natal and travelled to Ntabankulu to drop it off at the store. While en route, he was stopped at two roadblocks and was required to show his permit.
When he arrived in Ntabankulu he discovered his son was “exhibiting symptoms of terrible flu and bronchitis”.
He immediately phoned his family doctor, based in Kokstad, and drove back to Kokstad. But he was again stopped at a roadblock. He showed his permit and driver’s licence to a police officer, who refused to allow him through because his son did not have a permit.
He appealed to senior officers at the roadblock, explaining his situation and pointing out that the Disaster Management regulations permitted him to take his son for medical treatment. But the officers still refused.
The man then phoned a local traffic officer who told him to take an alternative route where there were no roadblocks. While on the call, he said, one of the policemen came up behind him and grabbed his hand. When he protested, he was punched, kicked and insulted.
When the officer reached for his gun, the man dropped his cellphone and lifted his arms “as a sign of complete surrender”. He was pepper-sprayed, kicked, hit and told that he was a “piece of shit” and a drunk. The man said he then fell to the ground, was handcuffed and put in leg irons.
He was taken to Mount Ayliff police station and charged with assault and interfering with police duties. He was released two days later, after being kept in a small dark cell with 27 other inmates.
In his judgment, Judge Nhlangulela said that during cross examination those representing the minister suggested to the man that the regulations did not authorise the transportation of sick people across the border and that there was no need to take his son to Kokstad because there was a doctor available in Ntabankulu.
The police officers testified that the man pushed one of them and had begun taking pictures of them with his phone. This was why he had been arrested, they said.
They denied assaulting him.
“It was argued strenuously on behalf of the (minister) that the evidence (of the man) was not worthy of credit because he had refused to produce a permit, was evasive, had exaggerated the manner in which the events unfolded, and his version of being assaulted was uncorroborated,” the judge said.
The judge said the man had proved that he was assaulted by the police. The injuries he sustained, proved by the medical record, bolstered his version. “In my opinion, the contradictions, inconsistencies and resultant improbability of the evidence adduced by the (minister’s) witnesses are not insignificant. They were simply not truthful with the court.”
The judge said the man had been kept in a cell for 40 hours without a reason being given for why he was not being prosecuted. “This speaks volumes, not just about the abuse of his constitutional rights, but also the absence of justification for his arrest and detention.”
The court awarded him R60,000 for the assault and psychological harm, R120,000 for unlawful arrest and detention, R50,000 for defamation and R10,000 for legal fees and ordered the minister to pay the costs of the legal action.