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[2011] ZAGPJHC 66
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Greenberg v De Beer and Another (22261/02) [2011] ZAGPJHC 66 (21 July 2011)
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SOUTH
GAUTENG HIGH COURT, JOHANNESBURG
CASE
NO: 22261/02
DATE:21/07/2011
In
the matter between:
GREENBERG
LIONEL
MERVYN
...................................................................................
Plaintiff
and
DE
BEER
ELMARIE
...........................................................................................
First Defendant
MINISTER
OF SAFETY AND
SECURITY
.....................................................
Second Defendant
JUDGMENT
MASIPA,
J:
INTRODUCTION
[1]
The plaintiff instituted an action against the first and second
Defendants claiming damages in the sum of R450 000 for unlawful
arrest and detention.
PLEADINGS
[2]
The plaintiffs claim against the defendants is, inter alia, based on
the following grounds:
[3]
On 5 April 2001 at Johannesburg, the plaintiff was wrongfully and
unlawfully deprived of his freedom and liberty for six (6)
days by
the first defendant acting at all material times within the course
and scope of her employment with the second defendant.
[4]
Alternatively, the first defendant wrongfully and maliciously
arrested the plaintiff without reasonable or probable cause.
[5]
Alternatively, the first defendant was actuated by an indirect or
improper motive when she arrested the plaintiff.
[6]
The first defendant wrongfully and unlawfully arrested the plaintiff
under case number MAS 351/04/01 without legal justification
and cause
and the plaintiff was detained from 5 to 10 April 2001
[7]
The plaintiff claims that as a result of the conduct of the
defendants he suffered damages, more particularly contumelia, loss
of
self-respect, humiliation, degradation, loss of dignity and an
unusual and cruel punishment post-traumatic stress disorder in
respect of which he is claiming R450 000.
He
is also claiming a sum of R25 000 which amount he states he expended
in respect, of legal fees and disbursements.
[8]
The plaintiff further alleges that he suffered loss of earnings in
the amount of R10 000 for the period of his incarceration.
[9]
The defendants denied liability for any wrongdoing and filed two
special pleas and a plea.
[10]
in the first special plea the defendants raised a defence of
prescription contending that the plaintiff had failed to comply
with
section 57(1) of the South African Police Act No. 68 of 1995 as
amended ("the Police Act). The defendants contended that
the
plaintiff's claim had prescribed in that it was instituted after the
expiry of twelve calendar months after the date upon which
the
plaintiff became aware of the alleged act or omission.
[11]
In the second special plea the defendants contended that the
plaintiff failed to comply with section 57(2) of the Police Act,
which requires one month notice to be served on the defendants prior
to institution of any legal action, and pleaded that plaintiff
failed
to give such notice and was barred from instituting these
proceedings.
[12]
Having considered all the relevant facts in the matter I am of the
view that a case has been made out for the condonation application.
Detailed reasons for this finding are not necessary in view of the
fact that this Court granted a condonation application in the
matter
where the same plaintiff was suing Inspector Gouws as the first
defendant and the Minister of Safety and Security as the
second
defendant, in that case the plaintiff relied on the same facts as
those in the present case. The condonation application
is therefore
granted.
[13]
in their plea the defendants first denied that any arrest took place.
Alternatively, they contended that the plaintiff was
lawfully
arrested and detained in accordance with the provisions of a warrant
of arrest: alternatively that the plaintiff was arrested
in terms of
section 40
of the
Criminal Procedure Act 51 of 1977
; alternatively
that the plaintiff was lawfully arrested on a valid warrant of arrest
issued in terms of the Domestic Violence Act.
[14]
The defendants also denied that the plaintiff suffered any damages as
a result of the defendants' conduct.
HISTORICAL
BACKGROUND
[15]
The plaintiff, Mr Greenberg, and the complainant, Mrs Greenberg,
whose complaint triggered the arrest in this matter, are former
husband and wife.
[16]
Or 7 February 2001 the parties were granted a divorce by order of
this Court in terms of which the plaintiff was not allowed
to nave
access to his two minor children G and K (I pause to state that the
said order was subsequently varied by this Court and
the plaintiff
was granted the care and custody of the one minor child, K. The
events which led to the arrest of the plaintiff occurred
before the
order was varied.)
[17]
It is common cause that the acrimony between the plaintiff and Mrs
Greenberg which led to the divorce progressed post divorce,
in fact
it grew out of proportion as over the years each party tried to outdo
the other by relentlessly pursuing the other through
litigation.
Victor J in the minority judgment of Greenberg Lionel Mervyn v Gouws
Margaret and Minister of Safety and Security Case
No. 22262/02 SGHC
dated 7 October 2010, recorded 57 cases initiated at the instance of
Mrs Greenberg against the plaintiff and
30 cases initiated by the
plaintiff against Mrs Greenberg.
[18]
It is against this background that this matter ought to be viewed.
COMMON CAUSE
FACTS
[19]
On 7 February 2001 a High Court order was granted which prevented the
plaintiff from having reasonable access to his minor
children.
[20]
On 17 March 2001 the plaintiff was sitting in a synagogue when his
son, Kevin came to sit with him. Later that day Kevin disappeared
and
was returned to his mother two days later. Subsequently the plaintiff
was charged with kidnapping at the Sydenham Police Station.
The case,
however, was never pursued.
[21]
On 5 April 2001 a breach of domestic violence docket was opened at
the Johannesburg Police Station. The same day the plaintiff
was
arrested by the first defendant at the Johannesburg Magistrates'
Court and taken to Germiston Court whereafter the matter was
remanded.
[22]
On 8 April 2001 and at Johannesburg Magistrates' Court the first
defendant opposed a bail application against the plaintiff.
He was
however, released on bail.
[23]
The matter was subsequently struck off the roll when the docket was
repeatedly not brought to court.
EVIDENCE
The
Plaintiff's Case
[24]
The plaintiff, Mr Greenberg, gave evidence that at about 11h20 on 5
April 2001 he was arrested by the first defendant, at the
Johannesburg Magistrates' Court in the presence of a fellow police
officer, Inspector Venter, as he was leaving the court room,
after
having attended a remand in another criminal case which had been laid
against him by his ex-wife.
[25]
He was informed that he was being arrested for domestic violence.
When he asked to see the warrant of arrest the first defendant
told
him that it was in her office and was not shown the warrant of arrest
concerned. He was then taken to Johannesburg Central
Police Station
where he was informed that he was being charged -with a breach of the
Domestic Violence Act. He was not given any
details.
[26]
The first defendant used foul language and had a laugh with inspector
Venter at the fact that they had "got him again'.
She further
used foul language, told him to leave his ex-wife alone and
threatened that she would teach him a lesson.
[27]
In the afternoon the plaintiff was taken to Germiston Magistrates'
Court where the magistrate stated that the matter could
not be heard
there as the plaintiff was known to the magistrates.
[28]
He subsequently appeared in the Johannesburg Magistrates' Court and
the matter was postponed so that the State could investigate
the
matter further.
[29]
Subsequently when he applied for bail the first defendant opposed it.
He was. however, granted bail in the sum of R5 000. He
appeared in
court thereafter repeatedly where the docket was not brought to
court. Finally both the docket and the charge sheet
were not brought
to court and the matter was struck from the roll.
[30]
The plaintiff stated that he was employed in the computer industry.
He has two children born out of his marriage to his ex-wife,
the
complainant. He told this Court how his former wife bombarded him
with numerous criminal charges since the divorce. The charges
invariably led to his arrest, detention and, if pursued, his
acquittal.
[31]
He spoke about his high profile as a member of the Jewish community;
he is a member of two choirs, Johannesburg Male Choir
and the
Synagogue Choir: he is involved in charitable community work. His
arrest was common knowledge and was widely published
in the community
in which he lives.
[32]
He stated that he was incarcerated with criminals. The conditions
under which he was incarcerated were unhygienic; the toilets
were
dirty; there were lice on the blankets; the cells were dirty. He was
traumatised by the experience and felt humiliated when
arrested and
thereafter detained. His esteem in the eyes of his associates and
family was lowered.
The
Defence Case
[33]
Two witnesses, namely Mrs Greenberg and inspector De Beer gave
evidence on behalf of the defendants
[34]
Mrs Greenberg s evidence can briefly be summarised as follows:
[35]
She described how, after an acrimonious divorce, she was granted
custody and guardianship of the two minor children while the
plaintiff was denied access.
[35]
She had to place Kevin under intensive psychological therapy. She had
taken out a domestic violence order against the plaintiff
which she
caused to be amended from time to time. She felt that it was
necessary to. inter alia., prevent the plaintiff from influencing
the
children because he was abusing them psychologically and emotionally.
Hence the necessity to obtain a domestic violence order
against the
plaintiff.
[37]
In February 2001 she obtained a further (ex parte) addendum to the
domestic violence order which stated that the plaintiff
be not
allowed to have any contact with the children until the high court
had ordered otherwise; the plaintiff was not to enlist
the help of
others to send messages to her or the children; the plaintiff was to
pay R20 000 for urgent medical treatment.
[38]
She then related how Kevin disappeared from the synagogue after he
had been sitting next to his father. She reported the matter
to the
police station and the child was returned on the plaintiff's sister
the next day. A psychologist was brought in because
Kevin did not
want to return to her.
[39]
Subsequently she said charges against the plaintiff for kidnapping
and for breaching the domestic violence order at the Sandringham
Police Station Thereafter she obtained a domestic violence warrant
for the plaintiff's immediate arrest.
[40]
Under cross-examination Ms Greenberg conceded that Kevin had run away
from home on previous occasions and that on each occasion
she had
laid a charge of kidnapping against the plaintiff. She, however,
stated that she felt that there was a threat of imminent
harm to
Kevin and that is why she had to report the matter and lay a charge.
[41]
Inspector Elmarie De Beer was the next witness. She is the first
respondent. Her evidence was briefly to the following effect:
She was
the arresting officer and not the investigating officer in case
number 351/04/2001. She arrested the plaintiff for allegedly
contravening a protection order.
[42]
On 5 April 2001 Mrs Greenberg came to her office to open a case for
contravention of a domestic violence order. This was done
after a
kidnapping case had been opened at Sandringham. At the time she was
sharing her office with Inspector Venter.
[43]
She and Inspector Venter went to the Johannesburg Magistrates' Court
in order to determine whether they could proceed with
the matter in
the Johannesburg Magistrates' Court. On her way there she happened to
see the plaintiff and arrested him as she had
the protection order
and warrant in her possession. She informed him why she was arresting
him, showed him the warrant and took
him to the police station
[44]
Her reason for arresting the plaintiff was that she felt that
imminent harm was about to befall the complainant and her child
and
if she did not act immediately she could be prosecuted for
misconduct. She was told by Mrs Greenberg that this incident kept
on
occurring and she did not want to take responsibility for what the
plaintiff might do further to the children hence the need
for
immediate arrest.
[45]
She denied knowing the plaintiff prior to the arrest and denied that
she ever told him to stop abusing his wife.
[46]
Under cross-examination the first defendant conceded that she was not
only the arresting officer in case number 351/04/2001
but also the
"preliminary investigating officer. She stated that she was in
the office with her partner, Inspector Venter,
when the latter
received a phone call. She was informed that Mrs Greenberg had gone
to lay a charge at the Sandringham Police Station
for domestic
violence but alleged that the police there were doing nothing.
[47]
Inspector Venter then told her to go and arrest the plaintiff as he
was appearing in court that morning. The Sandringham Police
had
difficulty tracing him as he was evasive. Mrs Greenberg later came in
and spoke to Inspector Venter while she (the first defendant)
merely
listened in.
[48]
Subsequently she and inspector Venter went to the Johannesburg
Magistrates' Court to talk to the control prosecutor about the
matter
but after the plaintiff was arrested this was no longer pursued and
the plaintiff was taken to Germiston because the complainant
resided
within that jurisdiction.
[49]
When asked what documents were in the docket when she decided to
arrest the plaintiff the first defendant mentioned four documents
and
then a fifth. While taken through the investigation diary she was
referred to the document marked "A2" reflected
as
"verklaring vir die oortreding van die gesinsgeweldwet
geliaseer" (statement for the contravention of the Domestic
Violence Act filed). She alleged that this statement contained
numerous other documents, including documents from case number
2472/12/00.
[50]
While the first defendant was under cross-examination a docket
purportediy for case number 351/04/2001 was presented to her
in the
witness box. Save for one original statement from Kevin, which had
nothing to do with the present case, ail documents in
the docket were
copies. No explanation was given as to the whereabouts of the
original docket.
[51]
Although the first defendant had met Kevin at court and commissioned
the affidavit referred to above she had failed to take
a statement
from him concerning his emotional state or the breach of the domestic
violence order in respect of case 351/04/2001.
The first defendant
conceded that she did not contact Sandringham Police Station to
ascertain the status of the domestic violence
case which had been
opened there or to verify the allegation that the plaintiff was
untraceable.
[52]
She was asked why according to the investigation diary, the docket
had not been registered in the case book and it had not
been seen by
the unit commander until 13 June 2002, (almost a year and a half),
after the arrest. She responded that it was not
her job to register
the matter in the case-book as she was not the investigating officer
and that the investigating officer was
inspector Venter. (This is
clearly not true as an entry on the charge sheet in case 351/04/2001
refers to E de Beer as the investigating
officer.)
[53]
The first defendant's evidence was that the addendum to the domestic
violence order had been granted on 19 March 2001, two
days after the
alleged offence had been committed. She stated that the date did not
matter, what mattered was that she was in possession
of a warrant and
could effect an arrest.
EVALUATION
OF EVIDENCE
[54]
The plaintiff was credible as a witness Although he was in the
witness box for a considerable period he did fairly well under
cross-examination. He explained that at the time of his arrest he
reported regularly at the Sandringham Police Station as part
of his
bail conditions in a case pending against him. His arrest was.,
therefore, not necessary as the police at the Sandringham
Police saw
him regularly and also knew where to find him if he contravened the
bail conditions. Lending credence to this version
Is the fact that
Venter herself knew where the plaintiff could be found. It is very
unlikely that she would not have passed this
information to the first
defendant who was to use her discretion (on the first Defendant's
version), whether to make the arrest
or not.
[55]
On her own version the first defendant conceded that she was indeed
given the necessary background information. She stated
on page 28 of
the record:
"Sergeant
Venter was the investigating officer, she gave me the background in
regards to the investigation that happened in
the Sandringham case.
She was personally involved there ..."
[56]
Mrs Greenberg's evidence merely set out the background which led to
the arrest of the plaintiff. If necessary her evidence
shall be
discussed with that of Mrs De Beer, the first defendant.
[57]
The first defendant was a pathetic witness who chopped and changed
her version as she went along. She made spurious allegations
where
there were no facts to support such and was in general evasive in the
extreme. She contradicted herself several times and
when this was
pointed out she became visibly uncomfortable and, suddenly,
conveniently, could not remember as "the incident
happened long
ago' On more than one occasion she would make a statement only to
recant a few minutes later
[58]
The defendants' case was rendered less credible even more by the many
contradictions between what was put by defendants' counsel
to the
plaintiff and what was stated by the witnesses under oath. Part of
the version put to the plaintiff was not even relied
upon by the
defendants.
[59]
It was put to the plaintiff, on behalf of the defendants, for
example, that the first defendant would say the reason the plaintiff
was arrested only on 5 April - more than two weeks after the incident
- was that they (the police) were looking for him and could
not find
him. Strangely the first defendant said nothing of the sort in her
evidence. On her own version she did not look for the
plaintiff. She
could not have since the complaint only came to her attention on the
day of the plaintiff's arrest.
[60]
It was also put to the plaintiff that the first defendant was going
to deny that there were no investigations done before the
plaintiff
was arrested. Contrary to the above the first defendant conceded that
she did no investigation at all in the matter before
she arrested the
plaintiff. She was given instructions to arrest the plaintiff on the
morning of 5 April - instructions that she
followed with amazing
alacrity. That very same day she arrested the plaintiff. The arrest
was based on the documents presented
to her by-inspector Venter who
received them from Mrs Greenberg. It is clear that the say-so of Mrs
Greenberg was not questioned
and she was the main source of
information that was relied upon This over-confidence in Mrs
Greenberg's version was misplaced
especially given the history of her
relationship with the plaintiff. Had the first defendant done any
investigations at all she
might have learnt of the acrimonious
relationship between Mrs Greenberg and the plaintiff. More
importantly she might have learnt
that Kevin had run away from his
mother more than once and that each time that happened a case was
opened against the plaintiff
which case was later abandoned. In fact
the psychologist who was called in after Kevin's disappearance was
called because Kevin
was refusing to return to his mother. not for
any other reason.
[61]
A puzzling feature about this case is that although the first
defendant commissioned a statement by Kevin, on something different,
on the day the plaintiff was arrested, she failed to take a statement
from him concerning this matter. Her explanation that Kevin
was
"deurmekaaf' does not make sense since she took what Kevin
stated in the statement she commissioned seriously and in fact
sought
to rely on it in the present case.
Was
there a warrant of arrest?
[62]
The plaintiffs evidence was that although he asked to see a warrant
of arrest it was not shown to me. Although the first defendant
denied
this and stated that she arrested the plaintiff on a warrant of
arrest no such warrant of arrest was produced in court.
Even on the
first defendant's version she could not say whether she had an
original warrant of arrest or had only a copy at the
time. The
inference is irresistible that the plaintiff was arrested without a
warrant of arrest.
Was
there justification for an arrest without a warrant?
[63]
Section 40(1)
of the
Criminal Procedure Act No. 51 of 1977
provides
for an arrest without a warrant of arrest. The relevant portion
thereof reads:
"A
peace officer may without warrant arrest any person -
(b)
whom he reasonably suspects of having committed an offence referred
to in Schedule 1, other than the offence of escaping from
lawful
custody."
[64]
The offences allegedly committed by the plaintiff do not fall within
the ambit of
section 40.
[55]
In the circumstances the defendants bore the onus of establishing the
lawfulness of the plaintiffs arrest on a balance of
probabilities
(Minister of Law and Order and Another v Dempsey 1988 (3) SA IS (A)
at 38B-C: Zealand v Minister of Justice and
Constitutional
Development and Another 2008 (2) 3ACR 1 (CC) paras [241 and [25],.
Whether or not the onus had beer-discharged would
depend on the facts
of each case. The facts and circumstances of this case clearly show
that the defendants failed to discharge
the onus.
Was
there a necessity to arrest?
[66]
It is trite that police are obliged to consider in each case when a
charge has been laid for which a suspect might be arrested
whether
there are no less invasive options to bring the suspect before court.
[67]
Arrest is a drastic interference with the rights of an individual to
freedom of movement and dignity and arrest should only
be the last
resort as a means of producing a person in court.
[68]
An immediate detention of the person concerned, therefore, if there
is no reasonable apprehension that the suspect will abscond
or fail
to appear in court if a warrant is first obtained for his/her arrest
or a notice of summons to appear in court is obtained,
is
constitutionally untenable and the exercise of the power to arrest
would constitute an abuse of process.
[69]
|n Tsose v Minister of Justice and Others
1951 (3) SA 10
(A) 17G-H if
was stated:
"An
arrest is of course in genera! a harsher method of initiating
prosecution than citation by way of summons but if the circumstances
exist which make it lawful under a statutory provision to arrest a
priori
as a means of bringing him to Court such an arrest is not
unlawful even if it is made because the arrestor believes that the
arrest
will be more harassing than summons. For just as the best
motive will not cure an otherwise illegal arrest so the worst motive
will not render an otherwise legal arrest illegal.”
[70]
Similarly in Louw v Minister of Safety and Security
2006 (2) SACR 178
at page 186C Bertelsmann J stated that an arrest, being as drastic,
an invasion of personal liberty as it is. must still be justifiable
according to the demands of the Bill of Rights.
[71]
It is clear that the arresting officer has a discretion whether or
not to exercise that power but the exercise of such a discretion
will
be clearly unlawful if the arrestor knowingly invokes the power to
arrest for a purpose not contemplated by the legislature.
[72]
In the present case the first defendant stated that her purpose in
arresting the plaintiff was in order to secure his attendance
at
court because she was not sure if he would comply with a summons or
notice to appear ,n court. There was no cogent reason for
uncertainty
at all as the plaintiff was clearly traceable.
[73]
That the plaintiff was easy to trace is supported by written
information provided by inspector Venter to the prosecutor on
19
February 2001 in case 2472/12/00. In that case inspector Venter
responded to e pro forma questionnaire and answered, inter alia,
in
the following manner
"EVADED/RESISTED
ARREST?
...................
NO,
EASY
TO TRACE?
…....................................
YES.
CO-OPERA
TED WITH POLICE
…...............
YES
"
[74]
The above is significant because it was at the instruction or request
of Inspector Venter that the plaintiff was arrested and
it is highly
unlikely that Inspector Venter would withhold this vita! piece of
information from the first defendant. I have already
stated that the
first defendant conceded that she was given background information by
inspector Venter.
[75]
The inference is irresistible that the first defendant knew that the
plaintiff could be easily traced. That might explain why
she did not
make any investigations at all before she made the arrest. Such
investigations were not necessary since the address,
the identity,
place of business and place of residence of the plaintiff were
available and could easily be verified by the first
defendant.
[76]
In fact when asked what steps she took to find out if plaintiff was
evasive she gave a startling response:
"So
what did you do to establish that he was evasive? - What did I do?
Yes?
Did you phone up Sandringham Police Station to find out if he was
evasive? - / am here to do the arrest, not to do the investigation
no.
[77]
in my view not only is this an astounding response but it is also an
indictment to the South African Police Service
Was
the plaintiff properly arrested in terms of the Domestic Violence
Act?
[78]
In terms of section 3 of the Domestic Violence Act the only time that
an officer may effect an arrest without a warrant is
at the scene of
domestic violence.
[79]
It is common cause that in casu the plaintiff was arrested inside
court premises some weeks after the alleged offences had
taken place
in a synagogue. The first defendant then needed a warrant of arrest
before she could arrest the plaintiff. No such
original warrant could
be produced.
[80]
Defendants' counsel made an undertaking that the original warrant
would be produced during the course of the proceedings. However,
no
such warrant was produced and no reasons were given for this failure.
The defendants had an onus to show that the plaintiff
was arrested in
terms of a warrant of arrest for domestic violence. They failed to
discharge this onus.
[8I]
The first defendant sought to rely on the allegation that there was
imminent harm to Kevin. The first defendants suspicion
of imminent
harm, however, was not based on reasonable grounds especially since
the plaintiff was arrested two weeks after the
alleged incident. As
arresting officer., she asked no questions and merely accepted the
say so of her partner, inspector Venter
Although her evidence was
that she used her own discretion her conduct shows otherwise.
[82]
A reasonable police officer in the position of the first defendant
would have analysed and assessed the quality of the information
at
her disposal critically and would have verified it before making a
decision whether to make an arrest or not.
[83]
In casu had the first defendant acted reasonably she would have asked
questions and would have been apprised of the history
and the nature
of the plaintiff's relationship with his ex-wife and would have
subjected the information furnished to her to careful
scrutiny.
Having regard to the circumstances in this matter i find that the
plaintiff's arrest was wrongful, unlawful and without
proper
justification.
Malice
[84]
Counsel for the plaintiff submitted that the conduct of the first
defendant in arresting the plaintiff in the manner that she
did was
indicative of malice. There is merit in this submission. Both the
arrest and the detention have the hallmark of malice
[85]
A puzzling feature in this case is that it is not clear why it was
the first defendant who was the arresting officer when Mrs
Greenberg
specifically reported the matter to inspector Venter and when the
latter was even available at the time of arrest The
role played by
Inspector Venter, therefore, as well as the relationship she had with
the first defendant cannot, in the circumstances
of this case; be
ignored and clearly points to something sinister going on.
[86]
It was submitted on behalf of the plaintiff that inspector Venter
knew that it would be improper for her to go and arrest the
plaintiff
at court as he was there on a matter in which she was the
investigating officer. She could not arrest him and allege
that his
details had not been verified and. therefore, he should remain in
custody. However, a new investigating officer would
be in a position
to do so. This submission has merit, in my view.
[87]
Although the first defendant denied that there was any mala fide on
her part when she arrested the plaintiff it is difficult
not to infer
mala fide from the circumstances of this case especially since the
defendants failed to call Inspector Venter as a
witness. What ,s also
of great concern to this Court is that the first defendant flatly
denied of any knowledge of a case of corruption
laid by the plaintiff
against Inspector Gouws, one of the police officers involved in one
of his cases for allegedly taking a bribe
from Mrs Greenberg.
She
was constrained to admit under cross-examination that she knew about
this and had in fact made a note of this fact in her own
handwriting.
A conclusion is irresistible that the first defendant was
deliberately attempting to play ignorant for an ulterior
motive and
that she had something to hide.
[88]
There are other clear indications that we are here dealing with a
case of malicious arrest and detention. The plaintiff's
evidence was
that the first, defendant and inspector Venter laughed at the fact
that they had "got. him again'-, that the
first defendant told
him to leave his ex-wife alone and threatened that she was going to
teach him a lessor. Although the first
defendant denied this the
plaintiff's version has a ring of truth and is the more probable
version.
[89]
A sinister motive can be inferred from the fact that the first
defendant lied about how and where the plaintiff was arrested;
why
she and inspector Venter went to the Johannesburg Magistrate's Court.
First she said it was to find out from the senior prosecutor
whether
they could proceed with the case there. Later she said it was to
arrest the plaintiff. Finally she said both those reasons
applied.
[90]
What seals the fate of the first defendant is that her denial that
she was the investigating officer in this matter is clearly
a lie. I
have already referred to the charge sheet where it is clearly noted
that she is the investigating officer. One can only
conclude that she
stuck to this version to exonerate herself from all blame relating to
the conduct of the case. She failed to
say what happened to the
docket or docket was never brought to court. In my view the motive
from the start was to harass the plaintiff
into desisting from
bothering his ex-wife. It was clearly not to proceed with the
prosecution.
[91]
in view of the above I find that malice on the part of the first
defendant has been established
QUANTUM
[92]
""he correct approach is to have regard to all the facts of
the particular case and to determine the quantum of damages
on such
facts (Minister of Safety and Security v Seymour
2006 (6) SA 320
(SCA) 325 para [17]; Rudolph & Others v Minister of Safety and
Security and Others (380/2008)
2009 (5) SA 94
(SCA) paras [26] to
[29]).
[93]
in Seymour supra, it was held that the assessment of awards of
general damages with reference to awards made in previous cases
was
fraught with difficulty. It was held, further, that the facts of a
particular case had to be looked at as a whole, and that
few cases
were directly comparable. They were a useful guide to what other
courts had considered to be appropriate, but they had
no higher value
than that (para [17] at 325B).
194;
incursions upon persona! liberty are viewed seriously by our courts.
However, it has to be borne in mind that money can never
be more than
a crude solatium for the deprivation of what can never be restored
(see Seymour p 327)
[95]
It was argued on behalf of the defendants correctly, in my view, that
unlawful detention ceased after a suspect has been brought
to court
and his further detention was ordered by the court (see Isaacs v
Minister van Wet en Orde 1996 (1) SACR 314 (SCA) at 351
G-l).
[96]
in Isaacs supra the court a quo found that unlawful detention ceased
when the appellant was brought before the magistrate.
On appeal it
was argued, inter alia, that if the arrest was unlawful steps taken,
thereafter, were similarly unlawful. The Supreme
Court of Appeal
rejected this argument and upheld the finding of the court a quo in
this regard.
[97]
This case is distinguishable on the facts. It is common cause that
the plaintiff was taken to court on Thursday 5 April 2001
but to the
Germiston Magistrates' Court. The Johannesburg Magistrates' Court is
right across from the Johannesburg Police Station.
No cogent reason
could be given why the plaintiff was not taken to Johannesburg
immediately he was arrested. The delay in launching
a formal bail
application was caused deliberately by the arresting officer as there
is no evidence that any investigations were
done after the
plaintiff's arrest. It, therefore, cannot be said that the
plaintiff's detention became lawful from the time he
appeared in
court. Where it has been established that the further detention of a
suspect was caused by the delaying tactics of
the police the latter
cannot hide behind a court detention order Police have a duty to
assist a suspect to appear in court as soon
as possible to enable
such suspect to exercise his right to apply for bail.
[98]
Counsel for the defendants submitted that there was nothing
exceptional about the facts of this case and that, therefore, damages
awarded should be lesser than the average especially since the
plaintiff was the author of his own misfortune. He submitted that
an
appropriate award would be R25 000. I disagree. A decision whether a
litigant is the author of his own misfortune can only be
taken by a
court. In the present case no such decision was taken as the matter
was simply not proceeded with.
[99]
In assessing damages a court is enjoined to take into consideration
all the relevant factors in that particular case. Awards
will,
therefore, vary from case to case depending on the circumstances of
each case.
[100]
In Stapelberg v Afdeimgsraad van die Kaap
1988 (4) SA 875
(C) a young
attorney on his honeymoon in Cape Town spent some three hours in a
police cell after being arrested and verbally abused
by the arresting
officer. He was awarded R10 000 for wrongful arrest and detention.
Although he had not been physically assaulted
before or during his
detention he was humiliated and treated disgracefully by the traffic
officer who accused him of, inter alia,
pretending to be an attorney.
Calculated according to the consumer price index referred to in
Robert J Koch, The Quantum Year Book
2007. the present day value of
the above award is about R57 0007
[101]
This Court was also referred to Ochse v King Williams Town
Municipality
1990 (2) SA 855
(E) where a journalist was detained for
a short time on a charge of having maliciously damaged speed testing
cables by slamming
on his brakes when he saw the cables on the road
in front of him He was awarded R7 500 for malicious prosecution.
Calculated according
to the consumer price index referred to in
Robert J Koch, The Quantum Year Book 2007, the present day value of
the above award
Is about R30 0007
[102]
In Bentley and Another v Mcpherson
1999 (3) SA 854
ECD the respondent
was a 45 year old housewife and grandmother. She suffered from
diabetes and high blood pressure. She was unlawfully
deprived of her
liberty for approximately nine and a half hours, during which time
she suffered the indignity of detention in police
cells. At the time
of her arrest there were a number of people in the street. Her
evidence that she felt deeply humiliated was
not challenged. Her
evidence was that once she was released people near her home looked
askance at her and children would mock
her saying she was a “bandiet"
who belonged in the cells. An award of R15 000 was made by the
magistrate. The present
day value calculated according to the
consumer price index referred to in Robert J Koch, The Quantum Year
Book 2007 is R32 0007
*
[103]
I have carefully analysed the facts in this matter, in addition I
have considered awards made in previous cases, bearing in
mind,
however, that such cases can only be used as guidelines and nothing
more
[104]
I have analysed the facts that triggered the arrest, the humiliation
that, the plaintiff suffered as a result of the arrest,
the trauma he
suffered, the period spent in detention as well as the indignity that
comes with being detained. Also taken into
consideration is the
unreasonable conduct of the first defendant who effected arrest
without any verification of facts furnished
to her and without even
considering other means of bringing the plaintiff to court.
Furthermore, the first defendant proceeded
to oppose the plaintiffs
bail application, albeit unsuccessfully, when, on her own version,
she was not the investigating officer
and who, on her own version, at
the time, no longer had anything to do with case 351/04/01.
[105]
Bearing all the circumstances in mind I think an appropriate award is
R90 000 for damages plus R25 000 for legal fees. Loss
of income was
not proved.
[106]
Accordingly, I make the following order:
1.
There will be judgment in favour of the plaintiff against the
defendants jointly and severally the one paying the other to be
absolved in the sum of R115 000.
2.
The defendants are ordered to pay the costs on a High Court scale
jointly and severally.
T
M MASIPA
JUDGE
OF THE SOUTH GAUTENG HIGH COURT, JOHANNESBURG
COUNSEL
FOR THE PLAINTIFF:C SNOYMAN
INSTRUCTED
BY: LARRY MARKS ATTORNEYS
COUNSEL
FOR THE DEFENDANTS:H W SIBUYI
INSTRUCTED
BY:STATE ATTORNEY
DATES
OF HEARING:19/10/2006. 20/10/2006, 25/9/2008;
26/9/2008;
24/1/2011: 2/3/2011
DATE OF FINAL WRITTEN ARGUMENT:23/3/20C1
DATE
OF JUDGMENT: 21 JULY 2011
*
The
figures from
The
Quantum Year Book;
were
kindly provided to this Court by counsel for the defendants
.