The Minister of Safety and Security was once more ordered to pay thousands of rands in damages, following yet another case of wrongful arrest by the police.

The claim for damages arose from the arrest, detention and subsequent prosecution of the then 68-year-old Mrs Issie Combrink, owner of CC Metal Merchants in Makhado (Louis Trichardt), on 23 January 2008. She, together with Mr Eric Mnisi, an employee, was arrested for allegedly being in possession of suspected stolen property in the form of scrap metal. Upon her arrest, Combrink informed the two arresting officers, Warrant Officer Edward Ramuthuthu and Sergeant Bethuel Makananise, that she was in possession of a control register which could have assisted them in verifying that the items found and confiscated by the said police officers were legitimately obtained. She was, however, ignored by the officers, who proceeded to arrest her.

After her arrest, Combrink was detained for eight hours in the police’s holding cells after which she was granted bail of R500. She appeared in court the next day on the said charge. Her case was postponed several times and eventually withdrawn on 25 March of that year on the grounds that “There are no prospects of a conviction. The defence (plaintiff) submitted proof of purchase of the properties by means of a receipt book and register.” Subsequently, a civil case for wrongful arrest was filed by Combrink.

Judgment in the case was given by Judge J Makgoba in the North Gauteng High Court on 19 April. In his judgement, Judge Makgoba stated, among other things, that the two officers, who argued that Combrink had failed to produce her control register when asked to do so, did not impress him as witnesses.

“Both of them were too talkative, long-winded and could not answer questions properly and as asked. They appeared to be tough, uncompromising and regrettably arrogant police officers who were in a hurry to do their work and not prepared to wait any longer for further explanation from the plaintiff. I reject their version insofar as it differs with the plaintiff’s version,” Judge Makgoba said. He added that it “is improbable that the plaintiff would have risked arrest and detention instead of simply producing the control register which was in existence.”

In contrast with the two police officers’ testimony, Judge Makgoba said that, as a witness, Combrink’s credibility was beyond reproach. “She impressed me as a credible and honest witness. She testified in a straightforward manner and at no stage did she contradict herself. I accept her evidence that she offered to show the police officers the control register at her premises but was ignored,” Judge Makgoba said.

Judge Makgoba said that in order to succeed in a claim for malicious prosecution, the plaintiff [Combrink] had to allege and prove that: the defendants set the law in motion – they instigated or instituted the proceeding;  the defendants acted without reasonable or probable cause; the defendants acted with malice or animo injuriandi; and the prosecution had failed.

In this regard, Judge Makgoba said that, according to Ramuthuthu and Makananise’s testimony, Combrink was arrested for failure to produce a control register and, as a consequence, was charged with being in possession of suspected stolen property. Ramuthuthu and Makananise also maintained that Combrink was arrested on reasonable suspicion that a Schedule 1 offence (possession of stolen property) had been committed and therefore the arrest was lawful.

Judge Makgoba refuted this, however, and argued that had Ramuthuthu and Makananise allowed Combrink to explain and produce the control register, they would have found that the plaintiff could not have reasonably been aware that any of the goods in the cash sale book were stolen. Judge Makgoba also stated that Ramuthuthu and Makananise could also not explain why Combrink would have failed to produce this register and by doing so take the risk of being locked up in the police cells.

“The suggestion by the third defendant [Ramuthuthu] that the control register did not exist at the time of the arrest but was later ‘created’ or forged to suit the plaintiff’s case is nonsensical,” Judge Makgoba said.

Judge Makgoba said that in his view, had Ramuthuthu and Makananise acquired and perused the control register, they would have not instigated a process of prosecution against Combrink. “Consequently, there was malice (animus injuriandi) on the part of the two police officers to cause the charge to be preferred against the plaintiff. In this regard, animus injuriandi means that the police officers directed their will to prosecuting the plaintiff in awareness that reasonable grounds for prosecution were absent; in other words, that their conduct was wrongful,” Judge Makgoba said.

Upon concluding that Ramuthuthu and Makananise’s conduct was wrongful, Judge Makgoba said that that brought him to the issue of quantum (how much damage the plaintiff had suffered in monetary terms). In this case, he said, the indignity Combrink had suffered was taken into consideration.

In his verdict, Judge Makgoba mentioned Combrink’s age. He stated, among other things, that she had suffered indignity by being arrested in front of her employees and then had to sit between Ramuthuthu and Makananise when taken to the police station in their vehicle, with the driver rubbing against her leg every time gears were changed. At the police cells, Combrink had to stand in the excruciating mid-summer heat and could not stand up when required to do so and other prisoners had to help her up. “She had to wipe her hands on her clothes after fingerprints were taken and was treated with the utmost disrespect. To add salt to the wound, the plaintiff was arrested three months after the death of her son and only three weeks after the death of her husband,” Makgoba said.

Upon taking all of the above into consideration, Judge Makgoba delivered judgment in favour on Combrink as follows:

* That the Minister of Safety and Security, Ramuthuthu and Makananise are ordered to pay Combrink the sum of R60 000 damages jointly and severally, the one paying the other to be absolved plus interest thereon at the rate of 15,5% per annum from the date of judgement to the date of payment.

* That the Minister of Safety and Security, Ramuthuthu and Makananise are ordered to pay Combrink the sum of R13 886,56 (being her initial legal cost in defending her criminal prosecution) jointly and severally, the one paying the other to be absolved plus interest thereon at the rate of 15,5% per annum from 3 August 2008 (date of demand) to the date of payment.

* That the defendants pay the costs of the action on a party-to-party scale, meaning that Combrink would pay all her legal fees to be reclaimed from the defendants.

Acting on behalf of Combrink was Advocate Marisa Naudé, on instruction of attorneys Coxwell, Steyn, Vise and Naudé.