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Police again on wrong side of the law

Date: 16 July 2017 By: Andries van Zyl

Gross human rights violations by members of the Makhado SAPS continue to literally cost the taxpayers millions of rands in compensation.

In the past month, two people who suffered at the hands of the Makhado police saw the High Court find in their favour regarding their claims for damages.

One of the victims is Mr Raymond Mashele of Tiyani village near Giyani. He instituted a R4.2 million claim against the Minister of Police for his ordeal at the hands of the local police in 2014. Mashele claimed that he was arrested on a charge relating to theft, unlawfully detained and tortured by the Makhado police.

According to media reports, the torture included being handcuffed and suspended at his wrists from a metal pole between two police vans, while police members assaulted him and threatened to throw him into a dam. All of this happened while struggling to breath as police have placed a plastic bag over his face. He was afterwards thrown into a police cell and refused medical treatment. It is further stated that he was granted bail, but kept in the same police cell for another two weeks, because he could not pay his bail. All charges against him were later dropped by the police as he could not be connected to the theft.

Acting Judge Tshepo Sibeko of the North Gauteng High Court have already found in favour of Mashele, but has yet to determine the amount of damages to be paid. (The Zoutpansberger is in the process of obtaining a complete copy of the judgment).

Closer to home, acting judge Nkosi of the High Court in Pretoria awarded R160 000 in damages to Ms Johanna Pavier of Louis Trichardt on 23 June.

According to court documents, Pavier (who was 61 years old at the time) was arrested without a warrant by Constable Ravele of the Makhado SAPS. The arrest took place at around 17:00 on February 16, 2012, at Reclam in Industria Road, with Pavier only being released at 15:00 the next day.

Like Mashele, Pavier’s account of the human rights violations she suffered at the hands of the police reads like a horror story.

Pavier was summarily arrested for illegally dealing in second-hand goods (scrap metal) after she, according to Ravele, failed to produce a valid “trade” certificate issued in terms of the Second-Hand Goods Act, Act 23 of 1955. This was despite Pavier producing an affidavit that she had obtained from the Makhado SAPS just prior to visiting Reclam, stating that she was selling the goods on behalf of a Mr Gert van der Merwe. This was also despite a letter written in Afrikaans by Mr Van der Merwe stating that the goods belong to him, indicating where the scrap metal is coming from and that he authorised Pavier to sell the goods on his behalf.

The court records show that Ravele did not understand Afrikaans and made no effort to find out what the Afrikaans note said. Ravele admitted in court to not knowing what the certificate looks like he was asking for. Despite this he instructed Pavier to escort him to the Makhado police station. Here she was left standing for an extremely long period of time while Ravele opened and registered the charge against her. He then informed Pavier that she is going to be placed in the police’s holding cells.

The shock caused Pavier to collapse. When she regained consciousness, she was being attended to by ambulance staff and transferred to hospital where her one arm was handcuffed to the hospital bed. The handcuff was in full view of her children who came to visit her. One of the police officers also told her “Jy moet lekker lê, because the next day at 06:00 you would be taken into the police cells where criminals belong and would be raped”.

Later, the court documents state, Pavier asked to use a toilet. She was, however, dragged with the handcuffs to the toilet, where her one wrist was kept handcuffed and the police officer held the other end of the handcuffs. She did not have full privacy in the toilet and Pavier was left humiliated and degraded.

The next day, Pavier was escorted to the police van and was ordered to climb into the back of the van. She obviously had difficulties doing so, because of her one arm being handcuffed and because of her age. Pavier said she had asked the police officer to assist her, but he replied: “I do not render assistance to rubbish.”

As Pavier was climbing into the back of the van, the court heard, the same police officer persistently slammed the door against her causing injury to her right shoulder, right hip, right knee and right foot. The worse was, however, still to come.

Pavier’s right arm was handcuffed to the van. According to her, the driver of the van found joy driving at a high speed and into all available potholes in the road to cause her discomfort. Pavier also testified that the driver deliberately took longer to reach his destination, because he took unscheduled detours to prolong the trip. At the police station, Pavier’s handcuff was removed and she was escourted to the police cells. It was only at around 15:00 on February 17, 2012, that Pavier was released after a warrant officer Bekker intervened.

During the journey, however, Pavier used her cell phone to take a video of her being handcuffed and show the high speeds at which the van was driving. The van also came to a sudden halt, with Pavier hitting her body against the hard steel surface of the back of the van. At this point, judge Nkosi remarked that he has seen the footage several times and that it was clear that the footage is not rehearsed or fabricated. “She appears to be in severe distress, very anxious and traumatised. Her facial expression tells it all,” judge Nkosi said.

In his judgement, judge Nkosi stated that Pavier was arrested for contravening the Second-Hand Goods Act. He, however, stated that the Act has sixteen sections and none of them make provision for a person to be arrested. At most the act makes provision for the imposition of a fine. The defendant (Minister of Police), however, claimed that Pavier’s arrest was justified in accordance with Section 40(2) of the Criminal Procedure Act. This section allows a peace officer to arrest a person without warrant subject to certain conditions as set out by that law. “None of the provisions of the Act [Second-Hand Goods Act] deal with the arrest of an offender or empower the police to arrest the offender. The justification for the arrest as stated by the defendant is therefore clearly incorrect. The fact that the word ‘arrest’ is not found in the Act, indicates that the legislature never intended that a person who contravenes any provision of the Act should be arrested …” said judge Nkosi.

As for the assault on Pavier, judge Nkosi stated that Pavier’s evidence about the humiliating treatment she had received at the hands of the police officers at hospital, as well as outside and inside the police van, remained unchallenged by the defendant. “The defendant failed to call a witness, notwithstanding the fact that the defendant was always aware of the nature of the claims. The fact that she was handcuffed to the hospital bed, which was cruel given the fact that she was an elderly woman of approximately 61 years of age and was in hospital due to a medical condition, leads me to believe that the police officers were so insensitive and cruel. The police behaviour leads me to a conclusion that it is highly probable that they slammed the door of the police van against her upper and lower limbs causing her injuries,” Nkosi sated.

All of the above eventually led to judge Nkosi ordering that the Minister of Police pay Pavier R160 000 in damages. Interest will also be calculated at 10.25% per annum from the date of the judgment until the amount is paid. The Minister of Police is further also liable for the cost of the law suit.

Adv. V. Gass appeared for the plaintiff as instructed by Erwee Attorney from Musina.


 (Download and read the full ruling here).

 
 
 

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Andries van Zyl

Andries joined the Zoutpansberger and Limpopo Mirror in April 1993 as a darkroom assistant. Within a couple of months he moved over to the production side of the newspaper and eventually doubled as a reporter. In 1995 he left the newspaper group and travelled overseas for a couple of months. In 1996, Andries rejoined the Zoutpansberger as a reporter. In August 2002, he was appointed as News Editor of the Zoutpansberger, a position he holds until today.

 
 

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