On 17 May 2022 judgement was handed down by Strydom J in the matter of Khumalo v Minister of Police (link Khumalo vs Minister of Police (25376/2007) [2022] ZAGPJHC 337 (17 May 2022) (saflii.org)).

The plaintiff (Ms Khumalo) claimed for wrongful and unlawful assault, humiliation and degradation – she sustained injuries, suffered pain, depression and trauma, she had a miscarriage, she lost amenities of life and was disfigured. The merits and quantum of the matter were separated, so this hearing related only to the merits (in other words, who is liable).

On 30 June 2007 she visited a hair salon with her husband. As she was busy being treated two policemen came into the salon. Her husband was standing at the counter. The policemen said “Chinedu you are under arrest”, her husband said he was not Chinedu. One of the policemen Sgt Mbuyisa slapped her husband and wanted to handcuff him. Ms Khumalo asked why was her husband arrested and they told her to get a lawyer. She said that she was a lawyer. There were about twenty people in the salon. The other policeman, Sgt Ndlovu came to her and slapped her whilst she was still under the dryer, she fell to the ground – she was kicked on her body, legs and stomach about five times, she was pulled up by her hair and clothes. She was told that she was the girlfriend of Chinedu and that she was working at Investec Bank. She and her husband were dragged across the road to a police vehicle and was forcibly pushed into it. There was a commotion and people were looking at what was happening to them. The keys of her Jeep vehicle was obtained from her. They drove off in the police vehicle but Sgt Ndlovu who was driving the vehicle slammed of the brakes and they came to a standstill. Sgt Ndlovu pointed them with a firearm asking what was wrong with the Jeep as apparently it could not start. She said maybe the seat belt was not worn by Sgt Mbuyisa when he was trying to drive their vehicle to the police station. She was told that if something should happen to Sgt Mbuyisa he will shoot them. They were taken to Hillbrow Police station. She was told that she was detained for interfering with police work. At the police station she was interrogated and threatened to tell the truth. At about 16h00 plaintiff and her husband were told that they will be taken to Kameeldrift Police Station situated in Pretoria. On arrival at Kameeldrift Police Station her husband was taken from the vehicle but she remained seated. Later she was taken back to Hillbrow Police Station where they arrived at 20h00. Her husband remained at this police station. She again told the police that she was an attorney and was released. She was warned and threatened not to open a case against them as they knew where she was living. She drove off in her Jeep to her home.

The Court heard the matter and held that

• the plaintiff’s evidence is credible, reliable and truthful as far as what happened to her on the relevant day,
• there is no evidence to indicate that the detention of the plaintiff was lawful,
• there is also no evidence that the plaintiff unlawfully interfered with the lawful performance of the police of their duties when they arrested her husband;
• The plaintiff’s claim against the defendant that she suffered a loss of her pregnancy as a result of being assaulted, arrested, detained and deprived of her freedom is dismissed.

The court found that Sgt Ndlovu assaulted the plaintiff by slapping and kicking her, by dragging her by her hair and forcefully took her to the police vehicle where she was forcefully placed into the vehicle. A firearm was pointed at her and she was threatened, both in the police vehicle and later at the police station. This actions of the police humiliated and degraded the plaintiff. Her dignity was impaired. She was told not lay criminal charges against the police. The plaintiff was deprived of her freedom by taking her to Hillbrow Police Station and thereafter to Kameeldrift Police Station and back to Hillbrow. This detention lasted for approximately 5 – 6 hours. She suffered the injuries as was noted in the J88 medico legal report. The assault was unlawful.

The matter will at later stage be heard for quantum (In other words the amount of compensation).

We do not know yet what damages will be awarded to Ms Khumalo and will keep you posted.

What constitutes a valid claim against the police?

• injury or death while in police custody, or as a result of police actions
• loss of income due to unlawful detention
• loss of support, if a breadwinner dies as a result of a police incident
• rape by a police officer (on or off duty) or while in police custody
• torture or assault by police or assault while in police custody
• the discharge of a firearm
• unreasonable loss of freedom
• medical costs for physical, emotional or psychological harm as a result of unreasonable police actions
• arrest without justifiable cause
• malicious persecution
• impairment of dignity

Police may arrest citizens without a warrant only if they witness a crime or have reasonable suspicion that an individual is guilty of a Schedule 1 offence, such as rape, robbery or arson. 

What must you do if you’re arrested by the police?

• Do not resist arrest, even if you are innocent of any wrongdoing
• Do not act aggressively
• Do not attempt to flee or pay a bribe

Procedure for lodging a complaint against the police

• The claim process should begin as soon as possible after a police incident – so contact a suitably qualified attorney as soon as you can.
• a police claim is a type of claim against the state – therefore specific rules and time limits apply – your attorney must to notify the Minister of Police of your intent to pursue a personal injury claim – within six months of the incident. If the six-month limit has lapsed, it may still be possible to lodge a complaint. The courts may grant condonation – special permission – to proceed if there are good reasons for this.
• Ninety days after serving the notice of the intended legal proceedings, a civil action can be instituted against the Minister.
• A prescription period, typically of three years, applies. In other words, a claim against the police must be submitted within three years of the incident, or it will lapse.

What information do you need to claim?

The more information and details you have about the incident, the better your chances of being successful in your claim. This includes:

• where the incident occurred?
• the name(s) of the offending officer(s)
• the names and contact details of witnesses to the incident
• reports from medical professionals
• receipts for medical costs or other costs related to the incident
• photographs of any visible injuries or footage of the incident

This article is not intended to be a full explanation of your rights in a situation where you have been injured as a result of SAPS treatment. For more information contact our offices at 021 556 9864 or info@cklaw.co.za.