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[2011] ZAGPJHC 100
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Gobuamang v Minister of Police [2011] ZAGPJHC 100; 2009/5959 (26 August 2011)
SOUTH GAUTENG HIGH COURT,
JOHANNESBURG
REPORTABLE
CASE NO
:
2009/5959
DATE:26/08/2011
In the matter between:
GOBUAMANG,
AKANYANG
RODNEY
.................................................
Plaintiff
and
MINISTER
OF
POLICE
............................................................................
Defendant
J U D G M E N T
SALDULKER, J
:
INTRODUCTION
[1] The plaintiff has instituted
an action against the defendant for damages for his unlawful arrest
and detention which occurred
on 4 July 2008.
[2] According to the plaintiff
the arrest, without a warrant was made by two uniformed white
policemen at or near a roadblock
in Belendina Street in the district
of Roodepoort. The plaintiff alleges that the arrest was
‘on
the accusation that he was intoxicated’
.
Thereafter he was detained at the Roodepoort police station. The
defendant filed a plea denying these allegations.
[3] The trial proceeded on both
the merits and quantum. The plaintiff sued for an amount of R180
000,00 for deprivation of liberty,
discomfort, inconvenience,
defamation,
contumelia
and general damages.
EVIDENCE
THE PLAINTIFF
[4] The plaintiff, a teacher by
profession, testified that on July 2008, he spent the afternoon at
his girlfriend’s place
and later left her place to board a
taxi, on his way to his home, with his girlfriend. His home was six
kilometres away. Whilst
they were walking in Belendina Street, the
plaintiff noticed that there was a roadblock, in the same street, set
up by members
of the South African Police Services (SAPS). They had
to pass the roadblock to board a taxi.
[5] As they got to the roadblock,
he was approached by two white police officers. One of them asked him
if he had been
‘drinking’
which he denied. The other accused him of
‘drinking’
and told him that they were arresting him and taking him to the
police van. He tried to reason with them, insisting that he was
not
drunk. One of the police officers pulled out an electrical device,
with which he prodded the plaintiff’s buttocks as
he boarded
the police van. The police van was crowded with people that had also
been arrested.
[6] At the police station he and
the other people who had been arrested with him, were instructed to
line up against a wall in
the parade room, where policemen took down
their particulars. The plaintiff refused to do so, as he believed
that his arrest
was unlawful.
[7] When it came to take the
plaintiff’s particulars, he at first attempted to explain to
Constable Sebola that he had been
mistakenly brought there. A scuffle
ensued between Constable Sebola and the plaintiff, during which he
was pushed aggressively
against the wall by the Constable, who then
started to assault him, striking the plaintiff several blows.
Initially, he assaulted
him with open hands, followed by blows to the
stomach and face. In the process Constable Sebola, whilst aiming a
further blow,
missed and hit the window pane behind the plaintiff.
The window broke and Constable Sebola sustained a cut on his hand,
which bled.
With the bleeding hand he struck the plaintiff further
blows and then pulled him outside, where he began to kick the
plaintiff.
After the plaintiff fell down, the Constable continued to
kick the plaintiff in his chest. Constable Sebola was ultimately
stopped
from further assaulting the plaintiff by another policeman.
[8] At around 23h00 Const Sebola
took him to the cells and entered the plaintiff’s name in the
register. He refused to inform
the plaintiff what the charges
against him were. The plaintiff was then detained alone in a cell and
separated from the other
arrested people. The plaintiff was released
on bail at around 15h45 on the following day, 5 July 2008. After his
release he laid
a charge of common assault against Constable Sebola.
He also made a statement to Constable Gumede in regard to the assault
perpetrated
on him.
[9] The plaintiff was charged
with malicious damage to state property, common assault and
crimen
injuria
. He appeared
in court in respect of the aforegoing charges and a ‘
nolle
prosequi’
decision was made by the prosecutor in respect of the charges.
[10] After his court appearance
he went to Dr Moloi who examined him and recorded in the form J88
that the plaintiff sustained soft
tissue injuries to the left ear, to
the left side of the face and the anterior chest.
[11] The plaintiff was not tested
for alcohol at the time of his arrest or at the police station. He
felt aggrieved and insulted
by the incident. He was a teacher and had
a good standing in the community. The pupils in his school became
aware of the incident
and he felt defamed and depressed about the
arrest.
[12] Under cross-examination
the plaintiff denied that there was a tavern in Belendina Street
where the roadblock had been set
up, stating that he informed the
two white policeman who arrested him that he was not drunk, and that
he was on his way to take
a taxi. He also denied that he and his
girlfriend were arrested by Constable Sebola together with a group of
17 other people as
they were coming, drunk, from the tavern.
[13] The plaintiff stated that
the policemen had smelt his breath, and then ‘
shocked
him with an electric device’
,
which he described as being two- pronged, which pierced his buttock
and caused him to suffer excruciating pain. He continued
to feel
this pain for some four to five days thereafter.
[14] He denied that the reason
for his arrest was to prevent crime and loitering in the area or that
he had been arrested for being
drunk in public. The plaintiff stated
that he was never told the reason for his arrest. He denied that he
had pushed Constable
Sebola or could have done so, taking into
account Constable Sebola’s physique and his official
capacity.
The plaintiff then closed his
case.
EVIDENCE
THE DEFENDANT
[15] Constable Sebola testified
that he was part of a joint operation on 4 July 2008, a Friday night
around 19h30, to patrol the
Roodepoort CBD, ‘
doing
stop and search’ duties.
He was with Constable Netshiunda at the time of the incident.
[16] He testified that the reason
why drunk people were arrested, was that these people were vulnerable
to being robbed and killed
and sometimes they also committed crimes.
He was able to tell from a person’s mannerisms that such a
person was drunk, namely
speaking loudly and smelling of liquor. On
the night of the incident 17 people were arrested for being drunk.
[17] Generally, when drunk people
were arrested they would be taken to the police station, and booked
in. They would then be kept
there until the next morning, until they
were sober, when they would be given an opportunity to pay an
admission of guilt fine
and no case would be opened against them.
He stated that drunkenness is not
a criminal offence.
[18] Constable Sebola testified
that whilst patrolling with his crew he noticed the plaintiff and his
girlfriend walking in a manner
which showed that they were drunk.
When they approached him, he realised the extent to which the
plaintiff was drunk. He asked
to search the plaintiff, but he would
not co-operate. He realised that the plaintiff and his female
companion would get robbed
and not reach their destination. They were
noisy and had difficulty understanding the questions being put to
them.
[19] The plaintiff insisted that
he was not drunk. However he proceeded to arrest him because all
drunk suspects when stopped and
searched, maintained that they were
not drunk, although they were. He denied that a white police officer
had been involved in the
plaintiff’s arrest. There were no
white policemen on their shift. He also denied that they had used a
two-pronged electrical
device that night, but stated however, that
they did carry a pepper spray but did not use it on that occassion.
[20] At the police station the
plaintiff refused to give him his details and swore at Constable
Sebola using vulgar words. As the
plaintiff spoke loudly, he
realised that he was influencing the others, who had been arrested,
‘to get out of
control’
. He
then decided to handcuff the plaintiff, but the plaintiff pushed
him and he fell against the wall behind him, striking the
window pane
with his outstretched arms , and in the process injured his thumb,
for which he later received medical treatment. Constable
Netshiunda
tried to separate them during their altercation. He denied assaulting
the plaintiff in any manner.
[21] Under cross-examination he
agreed that there were three charges against the plaintiff, malicious
injury to property, assault
and
crimen
injuria
. He conceded
that the plaintiff did not have the intention to break the window
pane as he had merely pushed him, nor did he have
the intention to
assault him. At the time the plaintiff was arrested, he did not
intend to charge him but to keep him safe from
being attacked or
robbed by criminals. He did not charge the plaintiff with drunkenness
as it is not a criminal offence. A case
of drunkenness was not
registered in the docket. The following day those people who had paid
admission of guilt fines were released.
It was pointed out to him
that in the case of the plaintiff, no admission of guilt fine was
paid, instead he was released on bail.
[22] At the time of the incident,
the plaintiff and his girlfriend were not walking straight but
colliding with each other. However,
he could not say that they had
come from the tavern. He testified that the plaintiff was not stopped
because he was suspected of
committing any criminal offence. It was
put to him that when the plaintiff was detained the only charge
mentioned in the
‘notice
of rights’
was
malicious injury to state property and not
crimen
injuria
or assault.
[23] He stated that the plaintiff
had committed an offence in terms of
s 23
of the
Liquor Act of 2003
,
but he did not arrest the plaintiff in terms of the
Liquor Act. He
had been arrested for being drunk on a public road. He denied that
the plaintiff had been assaulted even though this was recorded
by
Constable Gumede in his
‘statement
regarding interview with suspect’
.
[24] The defendant’s
second witness was Constable Leonard Netshiunda. He was on duty with
Constable Sebola. He testified
that he saw the plaintiff and his
girlfriend lingering in Belendina Street. Constable Sebola approached
the plaintiff and his girlfriend
and asked to search them. Constable
Sebola realised the plaintiff was drunk as he was staggering and
smelling of liquor and arrested
him.
[25] The plaintiff was arrested
for contravening
s 127
of the
Liquor Act which
allowed a police
officer to arrest drunk people for their own safety. He was sure that
the plaintiff and his girlfriend were coming
from the tavern.
[26] At the police station, the
plaintiff was swearing at all the policemen. As a result Constable
Sebola decided to handcuff the
plaintiff. This led to an altercation
between the plaintiff and Constable Sebola in the parade room. The
plaintiff forcefully
pushed Constable Sebola causing him to fall
against a window pane and injure his hand. They were armed with
firearms, handcuffs
and pepper spray. They did not have any electric
devices.
THE LAW
[27] An arrest or detention is
prima facie unlawful and the onus is on the defendant to prove the
lawfulness thereof. The defendants
rely on the provisions of Section
40(1)(a) of the Criminal Procedure Act 51 of 1977 (the Act )in terms
of which a peace officer
may without warrant arrest any person-
who commits or attempts to commit any offence in his presence;
(b) ……………………….
[28] Section 127 of the Gauteng
Liquor Act 2 of 2003 (Liquor Act) provides that:
“
It
is an offence for any person to –
…
…
be intoxicated in or on or near any public place, including but
not limited to any road, street, lane, thoroughfare, square, park,
market, shop, warehouse or public garage, etc;
consume liquor in or on or
near any public place, including a motor vehicle driven on a public
road or parked in a public place;
introduce, possess or consume
any liquor on a sports ground, or any part thereof, to which the
public has or is granted access,
except on any licensed premises
situated on the sports ground concerned.
”
[29] In terms of the
Liquor Act
‘
intoxicated
and
intoxicated condition
’
each mean the condition a person is in when his or her capabilities
are so impaired by liquor that he or she is likely to
cause injury to
himself or herself or be a danger or nuisance or disturbance to
others.
ASSESSMENT
[30] The burden of proof rests on
the defendant to prove that the arrest and detention of the plaintiff
on 4 July 2008 was not unlawful.
Constable Sebola, who alleges that
he arrested the plaintiff for being drunk testified that when he
arrested the plaintiff, he
was not suspected of committing any
criminal offence. There is no evidence that the plaintiff’s
condition was such that his
capabilities were so impaired by liquor
that he was likely to cause injury to himself or be a danger or
nuisance to others. Constable
Sebola conceded that the plaintiff
did not have any intention to assault him nor any intention to damage
the window pane in the
parade room. However, despite this concession
the plaintiff was nevertheless charged with malicious injury to
property,
crimen
iniuria
and assault.
[31] The plaintiff was not
charged with being drunk in public because that is not a criminal
offence. The terms of section 40(1)(a)
of the Act are that a peace
officer may without a warrant arrest any person who commits or
attempts to commit any offence in his
presence. The plaintiff
committed no offences.
[32] In my view, the plaintiff’s
version that he was not drunk when he was arrested by the two white
policemen is credible
and reliable. He was not charged in terms of
the
Liquor Act for
being intoxicated in a public place. He was not
incarcerated with the other drunk detainees. He did not pay an
admission of guilt
fine. He was not released in the morning. He was
released on bail.
[33] That the plaintiff was
assaulted by Constable Sebola is borne out by the complaint of an
assault by the plaintiff recorded
by Constable Gumede when he
interviewed him and the J88 completed by Dr Moloi. Although there is
reference to the altercation in
the parade room in Constable Sebola’s
statement, there is however, no reference to the arrest of the
plaintiff.
[34] There was no reasonable
suspicion to arrest the plaintiff. He was not arrested for committing
any crime. In these circumstances,
there were no grounds that could
justify the arrest of the plaintiff and it was not lawful in terms
of s40(1)(a) of the Act.
[35] The defendant’s
witnesses were not impressive. The defendant in its plea denied that
the plaintiff had been arrested
on the accusation that he was drunk.
This is in contradiction to the testimony of both the policemen who
advanced the version that
the plaintiff had contravened the
provisions of the
Liquor Act to
justify the plaintiff’s arrest.
Yet the plaintiff was not arrested in terms of the
Liquor Act.
Clearly
, the defendant’s employees were not acting in terms of
section 40 of the Act. Nor can the defendant rely on the provisions
of the
Liquor Act to
justify the arrest. It is not clear on which
provisions of the Act or the
Liquor Act the
defendant seek to rely
on, as no provision is pleaded by the defendant.
[36] What is clear, is that there
was no intention to charge the plaintiff with any particular offence
at the time he was arrested.
The only intention was to arrest and
detain him at the police station, and then release him after he had
paid an admission of guilt
fine. This did not materialise as he was
ultimately charged with various alleged crimes which occurred after
his arrest. I am therefore
of the view that the defendant failed to
justify the arrest and detention of the plaintiff.
CONCLUSION
[37] In view of all the
aforegoing I find that the detention of the plaintiff was unlawful.
Constable Sebola conceded that the
plaintiff committed no offence
prior to his arrest and did not have the intention to assault him nor
damage state property. The
plaintiff’s version that he was
assaulted is reliable and credible. He reported the assault to
Constable Gumede. There is
no reason to reject his version of the
events that led to his unlawful arrest and detention.
[38] It is improbable that the
plaintiff would act violently in the presence of other policemen, in
a crowded parade room. He laid
a charge of assault against Constable
Sebola on the following day after his release. He also visited Dr
Moloi who confirmed the
injuries in the J88.
[39] I find that both the arrest
and detention of the plaintiff were unlawful. The defendant has
failed to discharge the
onus
which rests upon him to prove that the arrest and detention were
lawful.
[40] The plaintiff has claimed
R180,000 for his unlawful arrest and detention. The plaintiff
testified that he was detained from
Friday evening until Saturday
afternoon. The plaintiff was assaulted at the hands of the police
whose duties are to protect and
to serve the community. The police
who arrested the defendant on their own version did not intend to
charge him. He clearly posed
no danger to himself or to the public
at large at the time of the arrest. The arrest in full view of the
members of the public
was a drastic invasion of the plaintiff’s
liberty. He must have been humiliated by the accusation of being
drunk. He was
placed in a cell on the false accusation that he was
drunk. He was never examined nor was a sample of blood taken from him
to determine
his level of intoxication. He was detained in isolation
from about 23h00 until his release the following afternoon at 15h45,
a
period of approximately 16hours. The plaintiff is a teacher by
profession, a man of good standing. Clearly his incarceration must
have caused him embarrassment and humiliation and tarnished his
reputation amongst the school children. It is clear that the
experience
has been traumatising and distressing for him. Having
regard to all the facts there can be no doubt that the plaintiff
suffered
damages.
[41] The awarding of damages for
unlawful arrest and detention is discretionary and is the domain of
the trial court. Previous
awards can only serve as guidelines. In
Minister of Safety and
Security v Seymour
2006 (6) SA 320
(SCA) paragraph [17], Nugent JA stated as follows:
“
The
assessment of awards of general damages with reference to awards made
in previous cases is fraught with difficulty. The facts
of a
particular case need to be looked at as a whole and few cases are
directly comparable. They are a useful guide to what other
courts
have considered to be appropriate but they have no higher value than
that.
”
In the above case the plaintiff
was deprived of his liberty for five days. During his detention he
had access to his family and
medical adviser. The court also found
that he suffered no degradation beyond that inherent in being
arrested and detained. However,
the Supreme Court of Appeal reversed
the award made by the High court of R500 000,00 to that of R90
000,00.
[42] In
Olivier
v Minister of Safety and Security and Another
2009 (3) SA 434
(W), the
plaintiff was a senior police officer who was arrested by the police
in full view of his colleagues and then detained at same police
station where he worked. He had claimed R150 000,00, for such
arrest where he spent about six hours in custody and the court
awarded him the amount of R50 000,00 which it regarded as fair and
reasonable to both parties.
[43] In
Van
Rensburg v City of Johannesburg
2009
(2) SA 101
(W), the court awarded R75 000,00 in damages for a 74
year old retired accountant who was arrested by the Metro Police and
spent
about five hours in custody.
This amount is equivalent to R
99,000 according to Robert Koch, The Quantum Yearbook, 2011.
[44] In
Areff
v Minister van Polisie
1977(2)
SA 900 (A), a 41 year old business man who was arrested and detained
for about two hours was awarded the amount of R1000.
This amount is
equivalent to R31 000 in 2011.
[45] In
Minister
of Safety and Security v M Tyulu
2009 (5) SA 85
(SCA), The Supreme Court of Appeal awarded R15 000,00,
to a magistrate who was arrested and detained for 15 minutes.
The
Honourable Court in the above matter further held that although the
plaintiff in the matter was arrested for a relatively short
period,
the length of time for which a person is detained after arrest is not
the only factor to be considered when determining
damages. All the
surrounding circumstances deserve to be taken into consideration.
[46] The
Tyulu
case (
supra
)
is very similar to the facts in this case. The police maintained that
their arrests in that case, without a warrant were lawful
and
justifiable in terms of s 40(1) (a) of the Act as the plaintiff had
committed an offence in terms of the
Liquor Act. The
plaintiff was
accused of being drunk in public. The Supreme Court of Appeal held
that the evidence did not show that the plaintiff
was not in control
of his physical or mental faculties or both as a result of him having
consumed alcohol at the time when he was
arrested. He may have been
under the influence of alcohol which did not necessarily mean that he
was drunk. It further held that
the plaintiff’s arrest without
a warrant for being drunk in public was not justified by s 40(1) (a)
of the Act.
And at para [26] of the judgment
the following is stated by Bosielo JA:
“
In the assessment of
damages for unlawful arrest and detention, it is important to bear in
mind that the primary purpose is not
to enrich the aggrieved party
but to offer him or her some much - needed solatium for his or her
injured feelings. It is therefore
crucial that serious attempts be
made to ensure that the damages awarded are commensurate with the
injury inflicted. However, our
courts should be astute to ensure that
the awards they make for such infractions reflect the importance of
the right to personal
liberty and the seriousness with which any
arbitrary deprivation of personal liberty is viewed in our law. I
readily concede that
it is impossible to determine an award of
damages for this kind of injuria with any kind of mathematical
accuracy. Although it
is always helpful to have regard to awards made
in previous cases to serve as a guide, such an approach if slavishly
followed can
prove to be treacherous. The correct approach is to have
regard to all the facts of the particular case and to determine the
quantum
of damages on such facts”.
[47] Viewing the facts of this
case as a whole, the past awards and the relevant case law, a fair
and reasonable amount of damages
to be awarded to the plaintiff is
the amount of R70 000,00.
[48] In the result I make the
following order:
Judgment is granted against the defendant in favour of the plaintiff
for:
Payment of the sum of
R70,000,00;
Interest on the said sum at the
rate of 15.5% per annum a tempore; morae from date of judgment to
date of payment;
Costs of suit.
__________________________
H
SALDULKER
JUDGE OF THE SOUTH
GAUTENG
HIGH COURT,
JOHANNESBURG
ATTORNEY FOR THE PLAINTIFF-
MOSALAKAE SEPAMLA ATTORNEYS
ATTORNEY FOR THE DEFENDANT – THE STATE ATTORNEY
COUNSEL FOR THE PLAINTIFF – ADV MOKALE
COUNSEL FOR THE DEFENDANT – ADV DLAMINI
DATE OF HEARING: 4
TH
MARCH 2011
DATE OF JUDGMENT: 26
TH
AUGUST 2011