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[2014] ZAGPJHC 280
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Riochards v Minister of Police and Others (25597/2012) [2014] ZAGPJHC 280 (23 October 2014)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
CASE
NO: 25597/2012
DATE:
23 OCTOBER 2014
In the matter
between:
LEVERED
RICHARDS
..............................................................................
Plaintiff
And
MINISTER OF
POLICE
................................................................
First
Defendant
M
MUNYAI
..............................................................................
Second
Defendant
NATIONAL DIRECTOR
OF PUBLIC PROSECUTIONS
...........
Third
Defendant
LIESEL VAN
JAARSVELD
......................................................
Fourth
Defendant
MINISTER OF
JUSTICE
..............................................................
Fifth
Defendant
J U
D G M E N T
MASHILE, J:
[1] The Plaintiff, a
twenty-three year-old male person, sues herein in his personal
capacity for unlawful detention stemming from
the Second and Fourth
Respondents’ deliberate presentation of false information to a
magistrate who was considering whether
or not to grant bail to him
subsequent to a charge of robbery with aggravating circumstances as
envisaged in
Section 51
of the
Criminal Law Amendment Act No. 105 of
1997
.
[2] On 27 March 2010
at approximately 21h12, Members of the police acting in the course
and scope of the discharge of their duties
with the First Defendant
arrested the Plaintiff at Eldorado Park, Milnerton Street without a
warrant.
[3] The Plaintiff
was arrested by a student Constable Tinowanga Mukwevo (Mukwevho),
Constable Mathe (Mathe) and another constable
whose name was not
provided to this court. His arrest was pursuant to being pointed out
by the complainant, Mr Jason Johnson (Johnson).
[4] Following his
arrest, he was detained at the Johannesburg Prison, colloquially
known as Sun City Prison. His application for
bail was postponed at
least twice at the instance of the State before it was finally heard
and refused on 7 May 2010. The bail
application came before court on
14 April 2010 and was postponed to 29 April 2010 with the court’s
specific remarks that
the State should come back prepared to argue
the matter if it intended to oppose.
[5] The bail
application came to court again on 29 April 2010 and the State was
still ill-equipped to proceed as it had not obtained
a sworn
statement from the Second Defendant. The hearing was postponed to
the 7th of May 2010 for a further hearing on which date
it was heard
and refused.
[6] In support of
his bail application, the Plaintiff presented his affidavit to court
on 7 May 2010 wherein he delineated his personal
particulars such as
his physical address, his age, lack of pending cases against him, his
date of birth, time and place of his
arrest.
[7] In response to
the bail application of the Plaintiff, the Second Defendant on behalf
of the State prepared an affidavit in opposition
and gave it to the
Fourth Defendant for presentation to court. To the extent that the
magistrate’s judgment places weight
on the allegations
contained in the affidavit of the Second Defendant, the following are
noteworthy:
7.1 The Plaintiff
was arrested on 27 March 2010 at 12h15 in the afternoon;
7.2 The Plaintiff
pointed a firearm at Johnson;
7.3 Johnson seized
the firearm from the Plaintiff and held him around the neck;
7.4 Implicit in the
statement is that the Plaintiff was arrested at the scene of crime
whilst Johnson was holding him by his neck;
7.5 The Plaintiff
committed the offence during broad day light.
[8] Relying mainly
on the contents of the affidavit of the Second Defendant, which is
explicit that the State’s case was strong,
the offence was
serious and prevalent in his area of jurisdiction, the magistrate
found that there were no exceptional circumstances
justifying the
Plaintiff’s release on bail. Accordingly, he ordered that the
Plaintiff be kept in custody until commencement
of his trial. He was
therefore kept in custody for a further 115 days.
[9] The Plaintiff
stayed in custody from 7 May 2010 to 31 August 2010 on which date he
launched a fresh bail application based on
new facts. Those facts
were, in the main, a correction of the false allegations prepared by
the Second Defendant and presented
to court on 7 May 2010 by the
Fourth Defendant. The new facts persuaded the magistrate
consequently he ordered his release on
bail. The Plaintiff was
subsequently tried and ultimately on 25 November 2010 discharged in
terms of
Section 174
of the
Criminal Procedure Act No. 51 of 1977
, as
amended.
[10] The Plaintiff’s
claim is in essence that the Second Defendant while acting in the
course and scope of discharging his
duties with the First Defendant
intentionally gave false evidence in the form of a sworn statement in
opposition to the Plaintiff’s
application for bail. The Fourth
Defendant, also acting in the course and scope of discharging his
duties with the Third Defendant,
failed to verify the contents of the
affidavit prior to presenting it to the court resulting in the
magistrate refusing bail to
the Plaintiff. In consequence of this,
the Plaintiff was detained for a further period of 115 days when he
should have been released
on bail.
[11] The Defendants
have raised lack of compliance with
Section 3
of the Institution of
Legal Proceedings against Certain Organs of State Act No. 40 of 2002
as a special plea against the Plaintiff’s
claim. In terms of
Section 3 of the aforesaid Act, the Plaintiff was under obligation to
notify the Organs of the State, the First,
Third and Fifth
Defendants, within six months of the occurrence of the event, that he
intends to institute a civil claim.
[12] The Plaintiff’s
further detention having happened between 7 May and 31 August 2010,
he should have prior to 7 November
2010 have advised the aforesaid
Defendants of his intention to institute the action against them.
The Defendants argue that even
if the Plaintiff were to contend that
he could not give the notice as he was incarcerated such that one
commences the calculation
of the six month period from the date of
his discharge, 25 November 2010, he remains hopelessly outside of the
period as the last
day on which he could have done so was 25 May
2011.
[13] The Defendants
also argue that the First, Third and Fifth Defendants did not consent
to the action being instituted against
them. They assert that they
will suffer prejudice and accordingly are opposing. The Plaintiff
has also failed to formally launch
an application for condonation of
his failure to notify the organs of State.
[14] The Plaintiff
only wrote his notice of intention to institute this civil claim on
14 June 2012. He dispatched four notices
to wrong addresses in
respect of the organs of state. The notices were also sent to third
parties. There was no explanation why
the incorrect procedure was
followed. Summons was ultimately issued in July 2012.
[15] In the event
that the court condones the Plaintiff’s non-compliance with the
Act, the Defendants contend that the Second
and Fourth Defendants did
not intentionally mislead the Court and in any event, the court is
always at liberty to grant or refuse
bail. In addition, the
Defendants allege that the Plaintiff’s detention was lawful.
[16] It is
convenient at this stage to turn to the evidence that was presented
by both parties in support of their case. The Plaintiff
testified on
his own behalf and thereafter closed his case. The Defendants, on
the other hand, led evidence of five witnesses
before closing their
case. The Plaintiff testified that:
16.1 He was born in
September 1990 and is currently 23 years old. He is not married and
has no children.
16.2 He was in
matric when he was arrested on 27 March 2010. He was detained for
115 days and was finally discharged in terms of
Section 174
of the
Criminal Procedure Act No. 51 of 1977
on 25 November 2010. He found
employment with a panel-beating company and earned R450.00 per week.
16.3 He grew up with
his great grand mother who has no qualification whatsoever. She
worked as a domestic servant during her working
days.
16.4 He grew up not
knowing his father. He only came to know him when he was 13 years
old.
16.5 His mother
lived and still lives in Boksburg. Both his parents have had no
share in his up-bringing.
16.6 He was arrested
on 27 March 2010 at Extension 4, Eldorado Park. He protested arrest
and made it clear to the police officers
and the complainant that he
was not part of the robbery. He claims that he even took off his cap
and told the complainant to look
at him and tell the police that he
was not the one who robbed him.
16.7 The complainant
was confused at the time when the Plaintiff was arrested. He kept on
saying it is him and no, it is not him.
He was however under
pressure from the police to confirm or not to confirm. He eventually
confirmed that the Plaintiff was the
one. The police went ahead and
arrested his hesitation and uncertainty notwithstanding.
16.8 He was
subsequently locked up at the Eldorado Park Police Station and later
transferred to Johannesburg Prison.
16.9 The Plaintiff
was held and kept in the company of other prisoners. He injured his
back during a fight with another prisoner.
16.10 Immediately
after his release on bail he went back to his school but was refused
readmission because it was too late. He
then went back in 2011,
wrote and passed matric at the end of that year.
16.11 Both his legal
representation and bail were paid by his aunt.
16.12 He looked for
work after passing matric. He then worked for the Johannesburg
Metropolitan Police Department for two months.
He was told that he
could not be employed because he had a criminal record.
16.13 He now works
for Hydraark earning R1 560.00. Does not know that he should have
notified the police that he intended to bring
an action against them.
He did not know hence the letter of demand was not sent.
16.14 The
Section 3
letter of demand was only sent to the defendants on 14 June 2012.
This letter was sent to all the relevant parties including the
Minister of Justice.
16.15 According to
the judgment of the magistrate, bail was refused on the strength of
the contents of the statement of the investigating
officer, warrant
officer Munyai. Firstly, it states that:
16.15.1 The
Plaintiff was arrested at 12h15;
16.15.2 It was in
the afternoon;
16.15.3 During broad
daylight;
16.15.4 The
community was outraged as this robbery took place during the day;
16.15.5 The police
did not lose sight of the Plaintiff when they ran after him;
16.15.6 The
Plaintiff was arrested at the scene of the crime;
16.15.7 The
complainant had held him by the neck until the arresting officer
arrived.
16.16 In
cross-examination, the Plaintiff stated that he wanted to sue the
police almost immediately after his discharge. He felt
like suing
the Defendants in 2011.
16.17 To this end,
In February-March 2011 he gave his attorneys instructions to proceed
with the claim. Surprisingly, the attorneys,
in violation of
Section
3
of the Institution of Legal Proceedings against certain organs of
the State Act No. 40 of 2002, only instituted proceedings against
the
Defendants approximately 19 months later.
16.18 The Plaintiff
conceded that his attorneys were negligent by not prosecuting his
claim promptly. The Section 3 letters were
all sent to each defendant
care of the State Attorney.
16.19 His attorneys
and the State entered into plea bargaining negotiations. The
Plaintiff steadfastly refused to plead guilty
because he believed
that he did not do anything wrong. He accordingly rejected it.
16.20 Mr Skhosana
who was the prosecutor in charge of plea bargaining matters at the
time confirmed when he took the stand that
indeed the attorneys came
back to him and said that the Plaintiff was not interested in plea
bargaining as he believe that he was
not guilty.
16.21 Counsel for
the Defendants argued that the Plaintiff heard when the statement of
the investigating officer was read in court
during the first bail
hearing that it was completely incorrect. In response to this rather
strange behaviour by the plaintiff
and his attorney, the Plaintiff
said that he did not speak to his attorney immediately after the
refusal of the bail other than
their parting pleasantries.
16.22 It was put to
the Plaintiff that the first bail application failed because he could
not furnish sufficient and satisfactory
exceptional circumstances
that could persuade the court to feel justified to grant him bail.
16.23 The second
bail hearing however was well supported with reasons that gave
exceptional circumstances hence the court allowed
bail.
16.24 The plaintiff
testified that he relied on his attorney for most of what was taking
place in court.
16.25 This concluded
the case of the Plaintiff.
[17] The Defendants
called JOHNSON as their first witness who took the stand and gave the
following evidence:
17.1 He was the
complainant in the criminal case against the Plaintiff. He claims
that the Plaintiff robbed him using a firearm.
17.2 The Plaintiff
and his co-perpetrator ran away after the robbery. The complainant
and the police then drove around the block
and saw him walking along
side the street. The complainant immediately saw him and told the
police that he was the one who had
just robbed him.
17.3 The Plaintiff’s
reaction after he had been pointed out was one of anger and shock.
The Plaintiff tried to run away when
the police stopped in front of
him. The Plaintiff protested that it was him.
17.4 Johnson first
stated that the Plaintiff did not run away and then changed and said
that he did. Eventually he told the court
that the Plaintiff stopped
when the police vehicle pulled over next to him. Had three versions
on whether or not he was running
away.
17.5 Johnson
admitted that the Plaintiff was arrested at night and not during
broad daylight. He denied nonetheless that he hesitated
that the
Plaintiff was not the one at any time when the police asked him. He
said that he identified him immediately. He denied
that the
Plaintiff was wearing a cap yet the arresting officer confirmed that
the Plaintiff wore a jacket with a cap.
17.6 Mr Johnson was
not a good witness. He left the court with the impression that he
was genuinely mistaken in that he just did
not have one version on
simple matters, such as, did he run or not.
[18] Constable
MUKWEVHO was the Defendants’ second witness and his evidence
was that:
18.1 He knew the
Plaintiff. He is the one who arrested him on 27 March 2010.
18.2 He was busy in
the vicinity of the scene of crime when he heard someone screaming.
Johnson said that someone was trying to
rob him. He then approached
the scene and that is when he noticed two coloured men running away
from the scene. They got into
their vehicle with Johnson. When they
turned around the block they saw a man walking along side the street.
18.3 Johnson then
identified him as the person who robbed him earlier. The Plaintiff
protested but he was nonetheless arrested.
Mukwevho said that it
took them approximately 3 minutes from the time they left the scene
of the crime to the time they arrested
the Plaintiff.
18.4 Mukwevho
confirmed that Johnson was very certain that the Plaintiff was the
one who robbed him.
18.5 In
cross-examination. Mukwevho confirmed that he was the arresting
officer. He arrested the Plaintiff at night. He said
that it must
have been at about 21h30. He made a sworn statement, which he filed
inside the docket on the evening of the arrest,
27 March 2010.
18.6 He denied that
the Plaintiff was arrested by Johnson. The Plaintiff was walking
along side the street when the police approached
him. The Plaintiff
was wearing a jacket with a cap.
18.7 The police
stopped the car and went to him. He resisted arrest claiming that he
was not the culprit.
18.8 He denied that
the Plaintiff took off his cap and confronted Johnson to tell the
police that he was not the one who robbed
him of his property
earlier.
[19] The fourth
witness was Ms LIZEL VAN JAARSVELDT, the prosecutor at the time when
the Plaintiff was tried and she testified that:
19.1 She is the
regional court senior public prosecutor. She was the prosecutor
during the hearing of both bail applications of
the Plaintiff.
19.2 She stated that
the Plaintiff was in fact arrested at 21h00 and not at 12h15 as
alleged on the statement of the investigating
officer, Warrant
officer Munyai. She admitted that she made a mistake. She meant to
type in 21h00 but typed instead 12h00.
19.3 She typed the
statement and gave it to Munyai to sign before a commissioner of
oaths. She apparently has no interest in the
matter in that she
knows no one involved in it.
19.4 She is aware
that plea bargaining negotiations were held between the defence
attorneys and the State but does not know who
initiated them.
Normally the defence would make the approach.
19.5 The Plaintiff
heard that the statement of the investigating officer was incorrect
as it was read onto the record in court yet
he kept quiet. She holds
the view that the Plaintiff could have advised his attorney of the
mistake alternatively, could have
noted an appeal against the
judgment of the magistrate to refuse bail.
19.6 She maintains
that had the Plaintiff notified her of the mistake then and there, as
the statement of Munyai was being read
in court, she would have
stopped the proceedings and corrected the mistake of 12h00 instead of
21h00.
19.7 In
cross-examination, it was put to her that Mukwevho prepared and
signed a statement on 27 March 2010, which he then filed
in the
docket. Surprisingly, his statement just happened not to be in the
docket on 29 March and 7 May 2010. She could not account
for the
convenient disappearance of the statement.
19.8 Plaintiff was
in custody for 41 days before a formal bail application could come
before court. No bail was prepared by the
state on 29 April 2010
consequently the bail application had to be postponed to the 7th of
May 2010.
19.9 She prepared
the statement in the presence of the investigating officer. She then
sat alone to type it whereafter she gave
to Munyai to read before
deposing to it. She conceded that the fact that the statement was
corrected means that Munyai perused
it and saw the mistake which he
corrected.
19.9 It was put to
her that the reference to broad daylight, arrested at the scene of
the crime and afternoon and that the community
was outraged as a
result of this occurrence was in the statement to persuade the
magistrate to refuse bail.
19.10 It was also
put to her that on 24 August 2010, five months from the date of
arrest, the State remained unprepared to proceed
with the formal bail
application. She agreed that indeed the State was not.
19.11 She felt that
there was a need to oppose the second bail application despite that
she realised her mistakes because for every
Schedule 6 offence
prosecutors are required to furnish reasons. Moreover, Johnson
remained resolute that the Plaintiff was the
person who robbed him.
19.12 She conceded
that the statements were badly drafted and confusing such that she
had to interpret them to have meaning. She
was tongue-tight when
asked why she attached a negative meaning against the Plaintiff when
interpreting them.
19.13 She conceded
that the Second Defendant acted in the course and scope of his
employment when he approached her for the typing
of the statement.
[20] WARRANT OFFICER
MUNYAI testified that:
20.1 He is the
investigating officer in this matter and did not know the Plaintiff
prior to his assignment to the case.
20.2 He and Van
Jaarsveldt prepared an affidavit. They did so by making reference to
the statement of the arresting officer, Mathe,
and Johnson.
Thereafter Van Jaarsveldt took the statement to type it.
20.3 Van Jaarsveldt
then gave the typed statement back to him to peruse and thereafter to
sign before a commissioner of oaths.
He admitted that he made
certain corrections on the statement. These corrections were made
after he had read it.
20.4 He came to know
that the crime occurred at night only after reading the statement of
Johnson. He was not in court when the
statement was read to the
court hearing the bail application.
20.5 He could not
remember whether or not he was present when Van Jaarsveldt was typing
the statement.
20.6 In
cross-examination, he stated that he has been a police officer for 22
years, 15 years as crime investigating officer and
a Warrant Officer
for 7 years.
20.7 He confirmed
that he and Van Jaarsveldt compared the statements of the arresting
officer, Mathe, and Johnson to his own as
they were drafting it. The
statement of Mukwevho was not inside the docket at the time. Van
Jaarsveldt subsequently typed the
statement in his absence.
20.8 He and Van
Jaarsveldt discussed the bail application shortly before the start of
the case on 7 May 2010. He claims to have
read his statement prior
to appending his signature.
20.9 According to
his statement, the crime occurred at 12h15. He said that the typist
made an error by swapping the numbers resulting
in 21 becoming 12.
He said that he could not remember whether or not he read the
statement.
20.10 When he was
shown another mistake, which had been corrected, he stated that he
did not rectify it but his was just to initial
next to it. He
confirmed his knowledge of the statement but not of the errors.
20.11 He did not
read the statement because he had seen the manually prepared one and
it had no mistakes and besides, he trusted
Van Jaarsveldt. He could
not explain the reference to broad daylight and afternoon. He could
not answer whether or not the mistakes
were made by him and typed by
Van Jaarsveldt.
20.12 He received
thee docket to conduct investigations on 29 March 2010. Mukwevho’s
statement was signed and filed in the
docket on 27 March 2010. It
was put to him that it was rather strange that he and Van Jaarsveldt
could not find it in the docket.
He was nonetheless adamant that
Mukwevho’s statement was not in the docket.
20.13 On 10 April
2010 the case was postponed for further investigations. He knew that
he had to obtain the statement of Mukwevho
prior to the next bail
hearing, 29 April 2010. He conceded that he was still not ready to
proceed on 29 April 2010.
20.14 He stated in
his sworn statement that Johnson held the Plaintiff by the neck until
the police came to arrest him. According
to Munyai, the plaintiff
was arrested at the scene. If not, this is by reasonable inference.
This was reiterated by the magistrate
when he said: “..... the
accused was arrested then and there….”
[21] Petrus Skhosana
was the last witness for the Defendants and he said:
21.1 He is a Public
Prosecutor stationed at the Randburg Magistrate Court.
21.2 Has been a
prosecutor since 1997. In 2010 he was about 13 years in the field.
21.3 When this
matter was considered in 2010, he was the prosecutor in charge of
plea bargaining.
21.4 He dealt with
the plea bargaining of the plaintiff. He thinks the defence made the
approach and not the State.
21.5 The attorneys
of the Plaintiff eventually withdrew from the plea bargaining process
because the Plaintiff refused to plead
guilty.
[22] It is on the
basis of the above facts that I am required to decide whether or not:
22.1 The
Plaintiff’s further detention was unlawful; and
22.2 If his
detention was unlawful, how much should be awarded to the Plaintiff
by way of damages?
[23] It is common
cause that the Plaintiff’s failure to send the Notice to the
First, Third and Fifth Defendants punctually
constitutes
non-compliance with the Act. It is this acknowledgment that prompted
the Plaintiff to launch an application seeking
condonation of his
non-compliance with Section 3. His application for condonation is
in terms of Section 4(a) of the Act, which
reads:
“If an organ
of state relies on a creditor’s failure to serve a notice in
terms of subsection (2)(a), the creditor may
apply to a court having
jurisdiction for condonation of such failure.
(b) The court may
grant an application referred to in paragraph (a) if it is satisfied
that —
(i) the debt has
not been extinguished by prescription;
(ii) good cause
exists for the failure by the creditor; and
(iii) the organ of
state was not unreasonably prejudiced by the failure.
(c) If an
application is granted in terms of paragraph (b), the court may grant
leave to institute the legal proceedings in question,
on such
conditions regarding notice to the organ of state as the court may
deem appropriate.”
[24] There are
therefore three requirements with which the creditor must comply in
order to qualify for condonation. The court
may grant such
condonation if it is satisfied that:
24.1 The debt has
not been quenched by prescription;
24.2 The creditor
has shown good cause for his failure to adhere to compliance; and
24.3 The organ of
state has not been unreasonably prejudiced by the Plaintiff’s
failure.
[25] Counsel for the
Plaintiff referred this court to several cases that considered the
three requirements above and it is useful
to have regard to them.
The court dealt with the three requisites of the Section of the Act
in De Wet N.O v Minister van Veligheid
en Sekuriteit,
2008 (5) SA 418
(CPD). The Applicant who was a Curator ad Litem for a minor child
brought an application for condonation under the following
circumstances:
25.1 The minor child
was approximately 16 years-old. His parents were farm workers who
had abandoned him and were inebriated for
most of the time. A lady
who worked for the Cape Town Society for the Blind took care of him.
25.2 He was injured
when the South African Police Services sprayed tear gas directly into
his eyes resulting in his blindness.
The notice in terms of the Act
was given two years from the date on which he went blind.
25.3 The Minister of
Safety and Security objected to the notice on the basis that it was
out of time. The Minister was requested
to condone the late service
of the notice, but refused. The Applicant was appointed as Curator
ad Litem, who then brought the
application.
25.4 The Court found
that the claim had not prescribed. The similarities of this case
with the present case are striking. If one
has regard to the fact
that the notices were sent on 14 June 2012 then the Plaintiff
dispatched the notices after nineteen months
compared to eighteen
months . The claim in this case has also not prescribed.
25.5 In concluding
that the applicant had demonstrated the existence of good cause for
his failure to give notice timeously, the
court had regard to his
personal circumstances such as the minor child’s age, his
abandonment by his parents, his difficult
childhood and his blindness
since November 2004.
25.6 The fact that
the Plaintiff in casu too only came to know his father when he was
thirteen, did not grow up with his mother,
was brought up by his
illiterate grandmother and was only nineteen when he was detained are
therefore pertinent personal factors
to be taken into account when
determining whether or not good cause has been shown. Moreover, the
failure of his attorneys to
whom he gave instructions to proceed
against the Defendants in February/March 2011 cannot be attributed to
him. See Mugwena &
Another v Minister of Safety and Security
2006 (4) SA 150
(SCA) and Manase v Minister of Safety and Security
and Another
2003 (1) SA 567
(CkHC).
25.7 With regard to
the third requirement dealing with unreasonable prejudice, the Court
found that the mere fact that the notice
was given late did not
prejudice the Minister. The Court also found that giving notice 18
months late cannot necessarily be taken
as an unreasonable delay.
25.8 If giving the
notice 18 months late was not considered prejudicial this court
cannot decide otherwise but to follow in the
footsteps of these
cases. In arriving at this decision I have taken into account that
the Defendants did not lay any basis of
the prejudice that they will
suffer in their papers or in their cross examination of the Plaintiff
should the court grant condonation.
25.9 The prospects
of success of this claim are good. There are no disputes of fact
which might result in the Plaintiff’s
case being dismissed.
Most of the facts on which his claim is founded are common cause.
The significance of this claim to the
Plaintiff is no doubt that an
award of damages will compensate him for the loss of the one year,
which he spent without attending
school.
[26] Having
considered the facts in the various cases and the circumstances under
which condonation was granted, I have come to
the conclusion that it
will be fair and just that the Plaintiff’s failure to comply
with Section 3 in this case be condoned.
See also Madinda v Minister
of Safety and Security
[2008] ZASCA 34
;
2008 (4) SA 312
(SCA).
[27] I turn now to
examine the fault of the Second and Fourth Defendants, which can
either be in the form of intention or negligence.
The Defendants
have argued that the Second Defendant did not intentionally mislead
the court by giving false evidence in his affidavit
as he was absent
in court when the affidavit was read into the record. In any event,
so the argument goes, granting bail is in
the discretion of the
court.
[28] The
determination of the Defendants’ fault requires a closer
examination of the Second Defendant’s sworn statement
that was
utilised for the purposes of opposing bail and the reasons that the
magistrate furnished when he ordered the Plaintiff
to remain in
custody on 7 May 2010. According to the judgment of the magistrate,
bail was refused on the strength of the contents
of the sworn
statement of the Second Defendant. It states that:
28.1 The Plaintiff
was arrested at 12h15;
28.2 It was in the
afternoon;
28.3 It was during
broad daylight;
28.4 The community
was outraged as this robbery took place during the day;
28.5 The police did
not lose sight of the Plaintiff when they ran after him;
28.6 The Plaintiff
was arrested at the scene of the crime;
28.7 The complainant
had held him by the neck until the arresting officer arrived.
[29] All the above
are evident or implied in the statement of the Second Defendant. It
is also inexorable to conclude that they
form the foundation of the
magistrate’s ratio in ordering the Plaintiff back into
detention on 7 May 2010. The question
that needs investigation is
why did the Second Defendant give this evidence when he knew or ought
to have known that it was incorrect?
[30] The Second
Defendant’s evidence is that he would have made reference to
the affidavit of Constable Mukwevho had it been
in the docket prior
to compiling his own. His evidence that Mukwevho’s statement
was not in the court file must be rejected
as there is no explanation
how it momentarily disappeared and then conveniently resurfaced after
the Plaintiff had been ordered
back into custody. Had he wanted the
Plaintiff to be released on bail, he would have presented the correct
evidence before court
to enable it to exercise its discretion whether
to grant bail or not.
[31] Even if this
court were to accept that the statement of Mukwevho had temporarily
vanished at the time when the Second Defendant
made his own statement
in preparation for the bail application, there is no justification
for missing the statements of Johnson
and Mathe, which were
apparently in the docket and were clear on how and when the Plaintiff
was arrested. Had he taken the trouble
of reading them, he would
have noted that the Plaintiff was not arrested at 12h15, that it was
not during broad day light and that
he was not arrested at the scene
of crime. The Second Defendant gave various inconsistent evidence on
whether or not he read his
statement prior to signing it. He was
also not clear why he noted certain mistakes and left others out when
perusing his statement.
He gave the impression that he did not care,
which led this court to conclude that he was negligent.
[32] The Fourth
Defendant, an officer of the court, took the sworn statement from the
Second Defendant and merely presented it to
court as is without
verifying the veracity of its contents. She was completely
incoherent during her evidence in cross examination
why she allowed
this to happen. Her incoherence leads this court to the inescapable
conclusion that she was negligent and that
her primary concern was to
ensure that the Plaintiff remained in detention regardless of the
circumstances surrounding his detention.
[33] It would not
have taken her more than the reading of the sworn statements of
Johnson and Mathe to establish that the Second
Defendant’s
affidavit had irreconcilable and fundamental differences with those
of the former. She attributed the reference
to the time of arrest,
12h00, as a cosmetic typing error. However, her argument could not
be sustained when she could not justify
the mentioning of
‘afternoon’, ‘during broad day light’ and
‘the community was indignant’ as
those were associated
with 12h00, the time at which the offence is alleged to have
occurred.
[34] She also was
tongue-tight when she had to explain why the opposing affidavit of
the Second Defendant, contrary to Johnson’s
statement, states
that the Plaintiff was arrested whilst Johnson held him by the neck.
Furthermore, she also could not clarify
the discrepancy between her
evidence and Constable Mathe’s statement that the suspects ran
away when they saw them. Mathe’s
statement makes it clear that
the Plaintiff could not have been arrested at the scene while held by
Johnson.
[35] Counsel for the
Plaintiff in cross-examination demanded to know what she would have
done had she been aware of the mistakes.
Her response was that she
would have alerted the court. If this answer was genuine and true,
one would have expected her not
to have opposed the second bail
application brought on new facts on 31 August 2010.
[36] It is
disquieting that what the Second and Fourth Defendants want this
court to believe were inadvertent inaccuracies are in
fact
allegations that were inserted for purposes of persuading the court
not to grant bail. It is indubitable from the contents
of the
judgment of the magistrate that in ordering the Plaintiff back into
custody, he relied on the evidence of the Second Defendant,
which was
jointly prepared with the Fourth Defendant.
[37] The above
became palpable on 31 August 2010 when the magistrate granted bail.
The exceptional circumstances were in the main,
the rectification of
the false evidence of the Second Defendant that was presented to
court by the Fourth Defendant on 7 May 2010.
[38] I am satisfied
that the Second and the Fourth Defendants were negligent in their
handling of the bail application. It was
on the strength of their
testimony that the magistrate exercised his discretion in favour of
denying bail. The Plaintiff’s
continued detention could not
have been lawful especially from 7 May 2010 as it is apparent that he
would have been released had
it not been for the magistrate’s
exposure to the distorted facts by the Second Defendant and presented
to court by the Fourth
Respondent.
[39] The Defendants
have argued that both the Plaintiff and his attorney were present in
court when the false evidence was tendered
to court intimating that
the Plaintiff and his own attorney were the authors of his
misfortunes. The uncontested evidence is that
it was the Plaintiff’s
first experience to appear in court. This court need not emphasise
how overwhelming and daunting
court procedures can be to older and
experienced people let alone a 19 year-old appearing for the first
time.
[40] The Plaintiff
does acknowledge though that he heard that the evidence was incorrect
but he did not have an opportunity to advise
his attorney. When the
magistrate refused bail, the only chance he had was wishing his
attorney well by signalling him prior to
instruction to descend to
the court cells.
[41] A further
contention advanced by the Defendants is that the Plaintiff delayed
in bringing back the matter to court for a bail
hearing. This
assertion presumes that the Plaintiff could have mitigated his
damages but he deliberately prolonged his incarceration
thereby
exacerbating the amount for damages. This approach can never find
favour with this court principally because this court
is acutely
mindful of the poor social circumstances under which the Plaintiff
grew. Even assuming that he grew up with his parents,
it probably
would have taken them that long to secure legal services as a result
of their penury.
[42] I agree with
the approach of the Plaintiff’s Counsel that the evidence of
Johnson, the prosecutor, Mr Skhosana, Mathe
and Mukwevho have limited
value. The evidence of Johnson, Mathe and Mukwevho is only relevant
and useful insofar as it confirms
the manner and time of arrest.
Other than the unreliability of their testimony, it has no weight on
the unlawful detention from
7 May to 31 May 2010 and can safely be
excluded as being neither here nor there. Equally, the evidence of
Skhosana pertaining
to the plea bargaining has no bearing on the
unlawful detention of the Plaintiff and it is accordingly discarded
as being of no
consequence.
[43] In the
circumstances I find that:
43.1 The Plaintiff
has on a balance of probabilities successfully proved that he was
unlawfully detained from 7 May 2010 to 31 August
2010;
43.2 In denying the
Plaintiff bail on 7 May 2010, the magistrate placed weight on the
false evidence of the Second Defendant, which
was presented to the
court by the Fourth Defendant;
43.3 The Second and
Fourth Defendants acted in the course and scope of discharging their
respective duties with the First and the
Third Defendants;
43.4 The Plaintiff
was ordered to remain in custody for 115 days as a result of the
false evidence of the Second Defendant, which
was presented to court
by the Fourth Defendant;
43.5 In consequence
of the Plaintiff’s detention, he lost one year of schooling;
43.6 The actions of
the Second and Third Defendants were unlawful;
43.7 The First and
Third Defendants are vicariously liable for the actions of the Second
and Forth Defendants to the Plaintiff;
43.8 There is no
basis to hold the Fifth Defendant liable and accordingly no order
will be made against it.
[44] Having
established that the Defendants are liable for the compensation of
the Plaintiff’s unlawful detention, I turn
to consider the
amount that should be awarded as damages. Section 12(1) of the
Constitution of the Republic of South Africa Act
No. 108 of 1996
Provides that everyone has the right to freedom and security of the
person, which includes the right -:
“(a) not to be
deprived of freedom arbitrarily or without just cause;
(b) not to bee
detained without trial;
(c) to be free from
all forms of violence from either public or private sources;
(d) not to be
tortured in any way;
(e) not to be
treated or punished in a cruel inhumane or degrading way.”
[45] The Second and
Fourth Defendants wield a lot of power upon which courts rely when
exercising their discretion to deprive a
person of his freedom or to
liberate him. They should have known that the court would place
emphasis on what they gave as evidence
in deciding whether the
Plaintiff was to be freed pending his trial.
[46] Counsel for the
Plaintiff has referred me to a number of comparable cases to assist
with the assessment of damages to be awarded.
It is trite that it is
useful to have regard to previous awards that are similar or closely
associated. It is also settled that
no case is exactly similar to
the other and that one cannot follow previous cases mechanically
without the application of one’s
mind. It follows that each
case must of necessity be decided on the strength of its own peculiar
set of facts.
[47] The facts
against which the damages of the Plaintiff are to be assessed are
that he was 19 years old at the time of detention.
It was his first
time to have been exposed to jail where he mixed with older and
hardened criminals with whom he fought and even
injured his back in
the process. It must have been traumatic to a 19 year old young man
who was looking forward to completing
his matriculation certificate.
He lost a year of schooling and therefore started his working life
later than he could have.
[48] When assessing
how much to award as damages, the personal circumstances of the
Plaintiff cannot be viewed in isolation from
the actions of the
Second and Fourth Defendants. Considering how the Plaintiff came to
be detained for a further period of 115
days in jail, courts should
be fretful and be on their guards as they cannot necessarily trust
even the most experienced employees
in the employ of both the First
and Third Defendants. Under normal circumstances one would regard
individuals who have been employed
for twenty-two and eleven years in
the case of the Second and Fourth Defendants respectively to be the
most consummate in their
respective fields. Their actions are the
aftermath of the society being apprehensive to place trust and
respect on those organs
of State that are suppose to serve and
protect them.
[49] Having said
that, it does not mean that the court must award an amount that is
dreadfully out of line. While I am appreciative
of the cases to
which the Plaintiff’s Counsel referred me, I think they are
completely out of sink with the facts of the
case in casu. Firstly,
in the case of Seymour v Minister of Safety and Security
2006 (5) SA
495
(W), the award that was made by Willis J, as he then was, was
reduced from R500 000.00 to R90 000.00 on appeal.
[50] Equally, in the
case of Van Rensburg v City of Johannesburg
2009 (2) SA 101
, the
sixty-six year old accountant who was awarded an amount of R75 000.00
for being in custody for 6 hours is not by any stretch
of imagination
analogous with this case. The factors that the court took into
account in awarding that amount are totally different
and inimitable.
Thus the award of R75 000.00 in that situation did not come as a
surprise.
[51] In Rudolph &
Others v Minister of Safety & Security
2009 (5) SA 94
the court
allowed damages in the amount of R100 000.00 to each Plaintiff. The
award was pursuant to the deprivation of freedom
of the Plaintiffs
for four days. From the facts of this case Counsel for the Plaintiff
concludes that since each of them was awarded
R100 000.00 it follows
that each of them was paid R25 000.00 for each day in custody. I
would be careful to apply a mathematical
solution to matters of this
kind otherwise the amount of the award would, as I have stated above,
be outrageously and farcically
high.
[52] In Mvu v
Minister of Safety & Security 2009 (6) SA (GSJ) Willis J, as he
then was, allowed damages in the amount of R30
000.00 to a plaintiff
who was kept in custody for overnight. Counsel for the Plaintiff
concludes from the facts of this case and
all the others to which he
has referred this court that generally courts allow between R25
000.00 and R30 000.00 per day in custody.
I disagree that his
assertion is correct. Each case is assessed on its own merits, the
situation under which it occurred, whether
the plaintiff was employed
or not, how skilled or educated the plaintiff was and his age, the
plaintiff’s sex, the list is
not exhaustive.
[53] I have
considered all these cases and the personal position of the Plaintiff
in this case and have come to the decision that
the appropriate
amount to be awarded is R500 000.00. Against that background, the
claim of the Plaintiff succeeds and I make the
following order
against the First, Second, Third and Fourth Defendants jointly and
severally the one paying the other to be absolved:
1. Payment of an
amount of R500 000.00.
2. Interest at the
rate of 9% per annum from the date of judgment to the
date of payment
tempore morae.
3. Cost of Suit.
B A MASHILE
JUDGE OF THE HIGH
COURT OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
COUNSEL FOR
PLAINTIFF: Adv. J P Du Plessis
INSTRUCTED
BY: Gani & Koor Attorneys
COUNSEL FOR
DEFENDANTS: Adv. Tshepo Lebeko
INSTRUCTED
BY: The State Attorney
DATE OF
HEARING:18 February 2014
DATE OF JUDGMENT:
23 October 2014