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[2012] ZAGPJHC 261
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Phasha v Minister of Police (25524/2011) [2012] ZAGPJHC 261 (21 November 2012)
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Certain personal/private details of parties or witnesses have been
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REPORTABLE
SOUTH
GAUTENG HIGH COURT
JOHANNESBURG
CASE
NO: 25524
/2011
DATE:21/11/2012
In
the matter between
PHASHA,
THABO
SYDNEY
..................................................................
Plaintiff
and
MINISTER
OF POLICE
…...................................................................
Defendant
JUDGMENT
EPSTEIN
AJ:
[1] This
is a claim for damages for wrongful arrest and detention. It is
common cause that on 24 April 2010 the Plaintiff was arrested
without
a warrant by police officers who are members of the South African
Police Services, on a charge of attempted theft. It is
the
Plaintiff’s evidence that he was arrested at about 12h30 and
taken to the Jabulani police station where he was detained
until he
was released at approximately 21h30. The period from the time of his
arrest, including his detention until his release
on bail of R1
000.00 was approximately 9 hours. The Plaintiff claims damages in the
sum of R150 000.00 as a result of the injury
to his privacy, dignity
and bodily integrity. It is not disputed that notice was given in
terms of section 2 (1) of Act 40 of 2002
prior to the institution of
the action.
[2] The
Defendant pleads that the Plaintiff was lawfully arrested in terms of
s.40 (1) of the Criminal Procedure Act 51 of 1977
(“the Act”)
on a charge of theft / attempted theft. However, in evidence, warrant
officer Makuvhile who affected the
arrest said that he arrested the
Plaintiff on a charge of attempted theft.
[3] The
applicable provision is s.40 (1) (b) of the Act which provides as
follows:
“40
Arrest by peace officer without warrant –
(1)
A peace officer may without warrant arrest any person –
(a)
.......
(b)
whom he reasonably suspects of having committed an offence referred
to in Schedule 1, other than the offence of escaping from
lawful
custody;
(c)
......”
[4] Schedule
1 of the Act includes the offence of theft, whether under the common
law or a statutory provision. In cross-examination
it was suggested
by the Plaintiff’s counsel that attempted theft is not an
offence listed in Schedule 1. However, Schedule
1 refers to “Any
conspiracy, incitement or attempt to commit any offence referred to
in this Schedule”. Therefore,
attempted theft is a Schedule 1
offence.
[5] The
onus to justify an arrest rests on a Defendant.
1
[6] Whilst
the Defendant acknowledged the duty to begin, an interpreter was not
available and the Plaintiff’s counsel, by
agreement with the
Defendant’s counsel, elected to begin by leading the Plaintiff.
[7] The
following is a summary of the Plaintiff’s evidence:
The Plaintiff was born on 30 November
1969. He was 40 years old at the time of the arrest which forms the
subject matter of this
case. He lives in Dobsonville and has resided
at the same address since 1998. He lives with his 3 biological
children and 2 adopted
children.
The Plaintiff works as a debt
collector at the office of the State Attorney in Market Street,
Johannesburg. He has been so employed
since 1995.
On Saturday, 24 April 2010 the
Plaintiff, accompanied by Mr Lebo Mokoto (“Mokoto”)
travelled in the Plaintiff’s
own car to Shoprite Checkers. His
purpose was to buy a leash for his dog. The Plaintiff and Mokoto
spent about 15 minutes in
the shop looking for an appropriate leash
but could not find one. As they were leaving the shop they were
stopped by a security
guard who said he wanted to speak to them. He
requested them to accompany him to an office. The manager of the
shop also came
into the office to which they had been taken. The
manager informed the Plaintiff and Mokoto that a woman alleged that
she had
been robbed of her money. Two women came into the office
accompanied by a young boy. The boy is identified in the docket at M
K (“K”). The complainant said that she had been told by
Kula that he had seen the Plaintiff and Mokoto in a group,
that the
Plaintiff and Mokoto had cut the complainant’s bag and that
they had taken her purse.
The Plaintiff disputed this. It is
apparent that there were cameras in Shoprite. The Plaintiff asked
for the video footage to
be replayed but the manager left the room
saying he was going to another office to look at the footage
himself. Thereafter the
police arrived and informed the Plaintiff
and Mokoto that they were being arrested.
The Plaintiff said that he and Mokoto
were not searched by the security guards, nor by the police. The
Plaintiff also testified
that he asked the police who were arresting
him to look at the video footage but they refused to do so.
The Plaintiff testified that he knew
the police who arrested him. He said that they were once colleagues
of his wife who was in
the police and worked at Jabulani police
station. She has since passed away. The Plaintiff said that the
senior policeman, who
he believed had the rank of captain, used to
come to his house to fetch the Plaintiff’s wife to take her to
work.
The Plaintiff and Mokoto were
handcuffed. They were then led through the mall and escorted to the
police vehicle. It took about
5 to 10 minutes to walk from the shop
to the vehicle. The Plaintiff felt humiliated and embarrassed and
said that his dignity
was impaired. He said that people who he knew
were surprised to see what was happening.
The Plaintiff told the police that he
had his own car. He handed the keys to them and someone drove his
car to the police station.
At the police station they were made
to sit on a bench and then made to sign a document. The document was
identified in the bundle
of documents handed in as “NOTICE OF
RIGHTS IN TERMS OF THE CONSTITUTION”. (Section 35 of the Act
no. 108 of 1996.)
The document commences with the words: “You
are being detained for the following reason – attempted
theft”.
The document reflects the time as 13:20.
After signing the document they were
placed in a small cell. It was very dirty. There were approximately
7 other detainees in
the cell who were smoking and there were
cigarette stubs on the floor. It had a toilet which was filthy and
there was no toilet
paper. The blankets provided were dirty. The
Plaintiff estimated the size of the cell. His indications reflected
that it was
approximately 2.5m x 2.5m.
The Plaintiff testified that he was
in the cell until after 21h00. He requested the police to arrange an
attorney who subsequently
arrived. The Plaintiff and Mokoto were
released on bail of R1 000.00 each and told to appear in court on
Monday, 26 April 2010.
[8] In
cross-examination the Plaintiff testified as follows:
i) He
was in the shop for about 15 minutes. He spent this time examining
various leashing to see if he could find a suitable one
but could not
do so.
ii) He
confirmed that the complainant said in his presence that her purse
had been lost but that she had not seen the Plaintiff
and Mokoto take
the purse. She heard this from K.
iii) It
was put to the Plaintiff that the rank of the officer who arrested
him was warrant-officer and not captain. The Plaintiff
said that he
may be confused as to the rank but said that the fact of the matter
is that the senior policeman who arrested him
– (the other
policeman is a constable) – was known to him.
iv) The
Plaintiff stated that his wife passed away in 2007. She worked at
Jabulani police station in the detective branch from
1996 to 2007.
[9] After
the Plaintiff’s evidence, the Plaintiff closed his case.
[10] The
Defendant called two witnesses to testify. The first witness was
warrant-officer Khathutshelo Eckson Makhuvile (“Makhuvile”).
He, together with constable Mutere (“Mutere”), arrested
the Plaintiff and Mokoto. In summary, Makhuvile’s evidence
was
as follows: -
He has been a policeman for 26 years
and a warrant-officer for 13 years. He has been at Jabulani police
station since 1995. Mostly
he is posted to the crime office and it
is his responsibility to open dockets.
On 24 April 2010, a call was received
from people at Shoprite at Jabulani Mall. They said that two people
had been ‘arrested’
for trying to steal.
Makhuvile said that it is the duty of
the police to go to a place where people have been arrested so that
they can take the people
to the police station.
When he and Mutere arrived at
Shoprite at 13h00, the security guards pointed out the Plaintiff and
Mokoto.
The complainant was present at the
scene. The bottom of her handbag had been cut so that a purse can be
taken out of the bag.
The complainant was holding her bag.
After the Plaintiff and Mokoto had
been pointed out to Makhuvile, he introduced himself and explained
to them their rights. He
said he was there to arrest them.
Makhuvile testified that the security
guards told him that they had searched the Plaintiff and Mokoto.
(The Plaintiff denied this.)
Makhuvile said that the security guards
told him that they did not find anything in the possession of the
Plaintiff and Mokoto.
After hand-cuffing both the Plaintiff
and Mokoto, he took them to the police vehicle and then took them to
the police station.
This was after 13h30. He said that the vehicle
was approximately two minutes walk from the Shoprite building. The
parking lot
is a little distance away from Shoprite.
At the police station a case was
opened against the Plaintiff and Mokoto.
Makhuvile said that he did not know
the Plaintiff and the first time he saw him was at Shoprite when he
was called to the premises.
Makhuvile said that he did not know
the Plaintiff’s wife. Later, in cross-examination, the name of
the Plaintiff’s
wife, Julia Sigone, was put to Makhuvile by
the Plaintiff’s counsel. He said that he did know her and
confirmed that she
is deceased. He however persisted in his
testimony that he did not know the Plaintiff.
[11] The
following was Makhuvile’s evidence in cross-examination:
He said that he arrested the
Plaintiff on a charge of attempted theft.
Neither he nor Mutere searched the
Plaintiff and Mokoto at Shoprite. They were searched on arrival at
the police station but nothing
was found.
Makhuvile denied that the Plaintiff
had said to him that he wanted to see the video footage. However,
Makhuvile was aware that
there was video footage and said that the
duty to see this falls on the investigating officer and not himself.
He confirmed that the complainant
told him that she had not seen the Plaintiff and Mokoto cut her bag
or take her purse. She had
relied upon what K had told her.
Makhuvile spoke to K. The young boy
said that he saw one of the two persons, that is the Plaintiff and
Mokoto, cutting the handbag
with a knife but he did not identify
which of the two.
Makhuvile’s decision to arrest
the Plaintiff and Mokoto was based upon what K had said and the fact
that the bag was cut.
He said that he estimated that K was 15 or 16
years old.
When asked whether he did not
consider other methods he could have used other than arrest,
Makhuvile said he did not think of
another way. He said that the
person must be arrested and get a cell number and then be taken to
court. He said if a person is
not arrested he, Makhuvile, will be
acting wrongly. If a person points out a suspect, he said they have
to arrest him.
[12] The
next witness called by the Defendant was the investigating officer,
warrant-officer Mackson Alec Ngobeni (“Ngobeni”).
His
evidence was to the following effect:
He has been in the South African
Police Services for 22 years and has been a warrant-officer for 12
years. He deals with general
cases.
He was given the docket in this
matter to investigate. He took it to the Protea Court. The Plaintiff
was at court having been
given bail over the weekend.
There was no statement from a
security guard. He also considered that video footage was required.
The prosecutor required a statement
from the security guard.
Ngobeni told the Plaintiff that he
could get his bail back. The case was not enrolled on the court
roll.
Ngobeni tried to get a statement from
the security guard but was told by the manager of Shoprite that they
do not have records
of who the security guard was. He also could not
obtain from Shoprite the video footage which he requires, where this
exists,
when doing this type of work. He said Makhuvile would know
that he needed video footage.
After Ngobeni’s testimony, the
Defendant closed its case.
[13] It
is common cause that on 13 September 2010, the prosecutor decided not
to prosecute the Plaintiff and Mokoto. The crime docket
was endorsed
“nolle prosqui”.
[14] To
re-cap -
The Plaintiff was arrested on a
report given by K who was not yet 13 years old.
It is not disputed that the Plaintiff
asked the security guards and the manager to replay the video
footage.
Before arresting the Plaintiff and
Mokoto, they were not searched by the police.
On the evidence presented by the
Defendant, the security guards did not find a knife or purse on
either the Plaintiff or Mokoto.
(It will be recalled that the
Plaintiff disputes that they were searched by the security guards.)
The police were aware of the fact
that there were cameras at Shoprite but decided not to see the video
footage, leaving this to
the investigating officer.
Despite the protestations of the
Plaintiff, they were arrested.
The Plaintiff and Mokoto were
hand-cuffed and they had to walk through the mall to the police car.
Makhuvile had not seen the cells on
the day in question and could not dispute their condition, save to
state that they are cleaned
every morning.
Makhuvile left work at 18h00 and he
had no personal knowledge as to when the Plaintiff was released.
The records as to when the Plaintiff
arrived at Jabulani Police Station were not admissible as no witness
was called to prove
them.
The Plaintiff’s evidence that
it was approximately 9 hours from the time he was arrested until the
time he was released
could not be disputed.
[15] There
are four jurisdictional facts for a s.40 (1) (b) defence, namely:
The arrestor must be a peace officer;
The arrestor must entertain a
suspicion;
The suspicion must be that the
suspect (the arrestee) committed an offence referred to in schedule
1;
The suspicion must
rest on reasonable grounds.
2
[16] The
first issue to be determined is whether the arresting officers in
this case had reasonable grounds for the arrest. It is
the
Plaintiff’s case that the police officers did not have
reasonable grounds.
[17] The
Plaintiff was arrested without a warrant for “attempted theft”.
Reasonable grounds are interpreted objectively
and must be of such a
nature that a reasonable person would have had a suspicion.
3
The arrestor’s grounds must be reasonable from an objective
point of view.
[18]
There must be evidence that the arresting officer formed a suspicion
that is objectively sustainable.
4
[19] It is the
peace officer himself who must form the suspicion. Importantly, if
the arrestor acts on information received, it
must be sufficient to
make a reasonable person believe that the offence has been
committed.
5
[20] From
the evidence, Makhuvile appears to hold the opinion that once a
complaint is received, he has to effect an arrest and
that there is
no other way of bringing the suspect before court. Makhuvile hardly
spoke to the Plaintiff and Mokoto. He did not
search them and did not
think that he should see the video footage which could have played a
major role in forming the required
reasonable suspicion. Makhuvile
went so far as to state that he did not talk much to the Plaintiff
because the complainant herself
was, as he put it, complaining so
much.
[21] Even
if the security guards had searched the Plaintiff and Mokoto, (which
I have already said was denied by the Plaintiff),
no knife or
implement was found which could have been used to cut the bag.
Moreover, one would have expected Makhuvile and Mutere
to at least
have considered how the alleged offence was committed. All that he
was faced with, according to his testimony, was
that the
complainant’s bag had been ‘cut’ and her purse was
missing. Surely this required an explanation. The
implication was
that somebody unseen had cut open the bottom of her bag –
without an explanation as to whether the bag was
being carried by the
complainant or placed somewhere – with the intention of
removing a purse from the bag. What is inexplicable
is if the bag was
cut at the bottom, why it would be expected that only the purse would
fall out or be removed. Also, why was it
necessary to cut the bag as
opposed to simply opening it? None of this was explained by
Makhuvile.
[22] In
his heads of argument, the Defendant’s counsel submitted that
the Plaintiff’s testimony was not credible, that
he
contradicted himself and that his version should therefore be
rejected as it is not probable. These are indeed strange submissions
taking into account that there is no indication as to which part of
the Plaintiff’s testimony was not credible and where
he
contradicted himself. At no stage did the Defendant’s counsel
in cross-examination put to the Plaintiff any contradictions
in his
evidence or suggest to him that he was not telling the truth.
6
[23] It
must be remembered that the young eye witness could not say whether
it was the Plaintiff or Mokoto who had taken the purse.
The best that
Makhuvile could offer was that he was told that they were together.
If he was inferring that there was a common purpose,
more would have
been required to form the necessary reasonable suspicion.
[24] I
find that applying the objective test, the arresting officers did not
have reasonable grounds to suspect that the Plaintiff
had attempted
to steal the complainant’s purse.
[25] Even
if the arresting officers had formed a reasonable suspicion –
which I find is not the case – it is still incumbent
upon the
officers to properly exercise their discretion as to whether or not
to arrest the suspects. The question in this case
is whether the
arresting officers did so.
[26] Once
the jurisdictional facts have been established, the discretion
whether or not to arrest a suspect arises. As stated in
Sekhoto
7
the officer is not obliged to effect an arrest.
8
The exercise of the discretion was dealt with in Sekhoto.
9
Where a discretion has been
bona fide
exercised, the court will not interfere with the result. There are
however circumstances in which interference would be possible
and
right. As stated in Sekhoto
10
‘
if he had not applied his mind to
the matter or exercised his discretion at all, or if he had
disregarded the express provisions
of a statute – in such cases
the court might grant relief
’.
[27] It
must however be noted that in Pharmaceutical Manufacturers
Association of SA: In re ex parte application of President of
the
RSA
11
,
Chaskalson P held that the Bill of Rights required that the exercise
of a discretion must also be objectively rational otherwise
it is in
effect arbitrary.
12
[28] The
question which therefore arises is whether the discretion was
rational. Perhaps in this case, what should be asked is,
was the
discretion exercised at all? Makhuvile seemed to believe that once
there was a complaint, he should effect an arrest. There
are other
methods of securing the attendance of an accused in court for the
purposes of trial, such as summons, written notice
and indictment in
accordance with the relevant provisions of the Act. It cannot be
determined on the evidence whether Makhuvile
knew that Julia Sigone
was the Plaintiff’s wife and therefore knew where the Plaintiff
lived. But he made no enquiries before
arresting him as to where he
lived and did not give any reasons as to why he believed the
Plaintiff would abscond. There was no
evidence that after the
Plaintiff and Mokoto were taken to an office at Shoprite there was
any attempt to escape. If an accused
is not a danger to society, will
not fail to stand trial, will not harm others or be harmed by them
and may be keen to disprove
the allegations against him, an arrest
will not be an appropriate way of securing an accused’s
presence in court.
13
It must be remembered that the accused tried to prove his innocence
by asking for the video footage to be shown but this was not
acceded
to by the manager. Moreover, Makhuvile should have considered whether
the sentence likely to be imposed upon a conviction
would be in the
form of a fine or one other than imprisonment. If this was the
likelihood, then he should not have been subjected
to pre-trial
detention.
14
[29] The
police drove the Plaintiff’s car and had details of its
registration. He could have shown them where he lived and
they could
then have released him on warning to appear in court on Monday. There
was in any event no reason to detain him until
approximately 21h30.
[30] It
seems that the arresting officers simply did not exercise the
discretion vested in them, based on the evidence of Makhuvile.
If any
discretion was exercised, then it was not rational.
[31] I
turn now to the question of damages. The approach to the assessment
of damages for wrongful arrest was summarized in
Ntshingana
v Minister of Safety and Security
15
as follows:
“The
satisfaction in damages to which a plaintiff is entitled falls to be
considered on the basis of the extent and nature
of the violation of
his personality (corpus parma and dignites). As no fixed or sliding
scale exists for the computation of such
damages, the court is
required to make an estimate ex aequo et bono. The authors of Visser
and Potgieter’s Law of Damages
2nd Edition, 475 have extracted
from our case law factors which can play a role in the exercise:
The
circumstances under which the deprivation of liberty took place, the
presence or absence of improper motive or (malice) on the
part of the
defendant, the harsh conduct of the defendant, the duration and
nature of the confinement of the deprivation of liberty;
the status,
standing, age and health of the plaintiff, the extent of the
publicity given to the deprivation of liberty; the presence
or
absence of an apology or satisfactory explanation of the events by
the defendant; awards in previous comparable cases; the fact
that in
addition to physical freedom, other personality interests such as
honour and good name have been infringed, the high value
of the right
to physical liberty; the affect of inflation; and the fact that the
actual inuriarem also has a punitive function”.
[32] Whilst
acknowledging that the facts in different cases are not the same, a
comparison of other cases and previous awards is
a guide to
determining the quantum of damages.
[33] In
the Plaintiff’s heads of argument, the following cases were
referred to:
Louw
v Minister of Safety and Security
2006 (2) SACR 178
(T)
Olivier
v Minister of Safety and Security
2009 (3) SA 434
(W)
Van
Rensburg v City of Johannesburg
2009 (2) SA 101
(W)
Murrell
and another v Minister of Safety and Security ?
Saffli
22 / 2 / 2010 24152/2008 [2010] ZAGPPHC16 ?
[34] The
Defendant’s Heads also referred to comparative cases:
Olivier
v Minister of Safety and Security
2009 (3) SA 434
(W)
Motsei
v Minister of Safety and Security 2010 ZAGPPHC 14, 4 March 2010
(unreported)
Minister
of Safety and Security; Jonathan Daniel v Johannes Swart
2012 ZASCA
16
, 22 March 2012
Areff
v Minister of Police
1977 (2) SA 900
Van
Rensburg v City of Johannesburg
2009 (2) SA 101
[35] A
number of comparative cases were referred to in
Sibiya
v The Minister of Safety and Security
16
.
In
The Minister of Safety and Security v
Seymour
17
,
the Plaintiff was unlawfully arrested and imprisoned for a period of
5 days. He was awarded general damages of R500 000.00 by
the
Johannesburg High Court but on appeal it was reduced to R90 000.00.
In
Ngema v The Minister of Police
18
,
the Plaintiff was awarded a global amount of R40 000.00 for wrongful
arrest and detention for less than 3 hours.
[36] As
stated above, the Plaintiff testified concerning his humiliation and
embarrassment at not only being arrested but being
marched through
the mall handcuffed, where people knew him. He said that his
reputation has been affected and the whole incident
has affected him
very badly. He stated that he is involved in cultural activities like
dancing and training children. However,
he feels that the community
no longer has confidence in him and they regard him as a robber. He
testified that even at work, the
incident has affected him. Sometimes
colleagues would make some negative comments towards him.
Notwithstanding that some comments
were made in jest, work colleagues
would utter hurtful words such as ‘we know you are somebody who
robs people’s handbags’.
It must be pointed out that the
Plaintiff was not maltreated by the police and he was not assaulted.
He however suffered the indignity
of being arrested, detained and
placed in a cell which was in a filthy condition and where he was
kept until approximately 21h30.
[37] The
Plaintiff’s counsel submitted that the award in this matter
should be in the sum of R110 00.00.
[38] In
my view, taking the cases I have referred to as a guide, an
appropriate award is the sum of R80 000.00.
[39] Insofar
as costs are concerned, a Plaintiff is required to make an estimate
when issuing summons. Although the amount awarded
falls within the
jurisdiction of the Magistrate’s Court, the Plaintiff was in my
view entitled to bring this action in the
High Court.
ORDER
[40] In
the premises I make the following Order:
The Defendant is to pay the
Plaintiff: -
The amount of R80 000.00;
Interest on the aforesaid sum of
the rate of 15,5% from date of service of the summons to date of
payment
Costs of the action.
_________________
EPSTEIN
AJ
ACTING
JUDGE OF THE HIGH COURT
Counsel
for Plaintiff – Adv N Adam
Attorney
for Plaintiff – Bessinger Attorneys
Counsel
for Defendant – Adv TJ Mosenyehi
Attorney
for Defendant – The State Attorney
1
The Minister of Safety and Security v Sekhoto & Another
2011 (1)
SACR 315
(SCA) at para [7]; Duncan v Minister of Law and Order
1986
(2) SA 805
(A) at 818 G-H.
2
Duncan, supra, at 818 G – H; Sekoto, supra at para [6]
3
R v van Heerden
1958 (3) SA 150
(T); Duncan, supra at 814 D –
E: “….the test is not whether a policeman believes that
he has reason to suspect,
but whether on an objective approach, he
in fact has reasonable grounds for his suspicion”.
4
Ralekwa v Minister of Safety and Security
2004 (1) SACR 131
(T)
para [1]
5
R v Basson
1961 (3) SA 279
(T).
6
President of the RSA v South African Rugby Football Union
2001 (1)
SA 1
(CC) at paras [33, 72, 124, 125]
7
Paragraph [28]
8
Groeneveld v Minister of Justice
1973 (3) SA 877
(A) at 883 G –
884 B.
9
Paragraphs [34], [35] and [36].
10
Paragraph [34]
11
[2000] ZACC 1
;
2000 (2) SA 674
(CC) at paras 85-86
12
Sekhoto para[36]
13
Le Roux v Minister of Safety and Security
2009 (4) SA 491
(N)
14
S v Moeti
1991 (1) SACR 362
(B) at 463 H.
15
U
nreported case no 1639/01, ECD, 14.10.2003
16
2008 JDR0821 (N)
17
2006 (6) SA 320
SCA 67
18
Unreported case no. 05081/2012 (SGHC)