Assault, wrongful arrest claim against police must be heard again, says SCA

A man who was shot by police and arrested for armed robbery will have another chance for his claim of unlawful arrest, assault and detention against the police to be heard.

The Supreme Court of Appeal remitted the application by Thabang Phakula back to the Pretoria high court to be heard by another trial judge on all the issues; including whether he was unlawfully shot, arrested and detained.

When the matter was initially heard, the court decided to separate issues to be determined and decided to first deal with the question of whether police had acted lawfully when they shot Phakula.

Judge Neil Tuchten held in February last year that police had lawfully shot Phakula to apprehend him. The court then did not deal with the two other issues raised in Phakula's claim.

Phakula was shot by members of the Special Task Force on the allegation that he was part of an armed gang that had conspired to commit armed robbery at the house of a businessman in Emalahleni (Witbank), Mpumalanga, on October 26 2010.

Phakula's version was that he was on his way to visit his then girlfriend who was studying at Unisa.

He was arrested and charged with attempted murder and robbery. In November 2011, Phakula was found not guilty and discharged due to a lack of evidence.

As a result of the injuries he sustained, Phakula was found to be medically unfit to resume work as an army officer in the South African National Defence Force.

He subsequently instituted proceedings against the minister of police in which he claimed damages arising from the shooting and for his subsequent arrest, assault and detention.

When the matter was initially heard in the high court, it decided to separate the issues to be determined. The court held that police had lawfully shot him and did not deal with the question of assault and detention.

This led Phakula to appeal to the Supreme Court of Appeal.

In its judgment passed on Wednesday, the SCA said the high court should simply have heard all the evidence on all the claims and thereafter determined all the issues before it.

“That would also have meant that the high court would not have fallen into the trap, as it did, of making factual findings on one leg instead of all three legs of [Phakula's] claim,” judge of appeal Baratang Mocumie wrote in her judgment.

Mocumie said it was never advisable to separate issues as a general rule.

“Ill-considered separation of issues often result in a wastage of scarce resources as has been witnessed in this case,” she said.

Mocumie said had the separation of the issues not been ordered, the trial court would have started evidence to determine first and foremost whether the arrest was lawful.

Then the rest of the issues including the assault and detention, substantiated by medical evidence, would flow naturally to help the court come to a proper conclusion on whether the police officers were justified in shooting.

“But as is apparent from its judgment, the order that the high court granted brought an end to the whole action encompassing three claims when the two of those claims were not before it,” Mocumie said.

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