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[2015] ZAGPJHC 215
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Mashigo v S (9075/13) [2015] ZAGPJHC 215 (11 September 2015)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 9075/13
DATE:
11 SEPTEMBER 2015
In
the matter between:
DESMOND
MASHIGO
.......................................................................................................
PLAINTIFF
And
THE MINISTER OF
POLICE
........................................................................................
DEFENDANT
JUDGMENT
MUDAU
AJ
:
[1] This is an
action for damages consequent upon an alleged unlawful arrest and
detention. It is common cause that the plaintiff
was arrested without
a warrant by the employees of the defendant, acting within the course
and scope of their employment with the
South African Police Service
(“SAPS”), on 14 November 2012 whilst travelling on a
train. The plaintiff was detained
at the Germiston Police Station. He
was held in custody overnight and taken to the magistrate’s
court cells the following
day. He was set free in the afternoon
without an appearance. He was never charged with any crime. The
merits of the case turn on
whether the arrest and detention was
lawful.
[2]
This court is called upon in this trial to
determine both the plaintiff’s claims on the merits as well as
the quantum of damages
.
[3] It is common
cause on pleadings that on the day in question the plaintiff was
arrested by members of SAPS for the offence of
travelling on a train
without a ticket. Thereafter, he was taken to the Germiston police
station. He was detained at about 07h00
until his release on 15
November 2012 at about 13:00 hours.
[4]
The defendant had the onus to begin and prove the justification for
the arrest on a balance of probabilities.
(See
Minister
of Law and Order and Another v Dempsey
[1]
and
Zealand
v Minister of Justice and Constitutional Development
)
[2]
.
[5] The police
officer on duty at the Germiston SAPS charge office, Constable Billy
Matlala (“Matlala”), testified that
he was on duty when a
group of about 20 people were brought to the police station. He was
told that the group of people had been
arrested by the police and
security guards for travelling on a train without tickets. During
cross-examination, Matlala conceded
that he had received no written
statement from any of the officers who carried out the actual arrest
of the plaintiff in the train.
He relied on their oral report.
[6] The evidence of
the plaintiff is briefly as follows. On the day of his arrest, his
car experienced mechanical problems. He
had no choice but to take a
train ride to Alrode where he worked as a truck controller. A friend
of his dropped him off at the
train station shortly before 06h00.
There was no cashier or ticket examiner on duty to sell him a ticket.
As he was late for work,
he could not wait for a cashier. He
proceeded and boarded a train which had stopped at the station. He
intended to purchase a ticket
after he had boarded. He testified that
he had money to pay for the ticket. The plaintiff further testified
that he was not given
an opportunity to purchase a ticket and was
told to keep quiet.
[7] There were other
people inside the train including some of his colleagues. While he
was travelling, a ticket examiner and the
police approached him. They
asked him for his ticket. He had none. He was asked to stand up,
which he did. He was promptly arrested
and handcuffed. When he tried
to give an explanation, they did not want to entertain it but told
him that he could explain in court.
He was not the only one arrested.
At the Germiston train station, they were made to disembark and taken
into police vans. Thereafter
he was taken to the Germiston police
station where he was detained. He had to sleep on a cement floor.
There was an open toilet
which was not only dirty, but also smelly.
As indicated above, the next day he was taken to the courthouse cells
and was eventually
released around 14h00 without an appearance before
the magistrate.
[8] During
cross-examination, he testified that he knew it was an offence to
board a train without a valid ticket. However, this
did not bother
him as he thought he could always buy it once inside the train.
[9]
The Bill of Rights, in our Constitution,
[3]
enshrines in section 12 (1) 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 be detained without trial.
(c)
…
(d)
….”
The protection of
section 12 (1) of the Constitution is fundamental in governing
relationships between the state and a citizen (including
foreigners,
asylum seekers and economic migrants amongst us). This is intended
primarily to strike a balance between public interests
in protection
against crime and individual liberties and freedoms on the other
side.
[10]
Section 12 of schedule 1 of the Legal Succession to the South African
Transport Act
[4]
reads as
follows:
“
A
person who-
(s) is present in a
vehicle under the control of the Company or the Corporation, as the
case may be, and refuses, upon being requested
to do so by an
authorized official of the Company or the Corporation, as the case
may be, to hand over a valid ticket, letter of
authority or
the
applicable cash amount for the actual journey being undertaken;
(“emphasis added”)…
(u) is present on
station premises under the control of the Company or the Corporation,
as the case may be, and who-
(i)
intends to travel by train from such
station premises; or
(ii)
has completed a train journey at such
station premises,
and
refuses, upon being requested to do so by an authorised employee of
the Company or the Corporation, as the case may be, to produce
or
present a relevant ticket, a letter of authority,
cash
or other acceptable means of payment for such journey,
(“emphasis added”) shall be guilty of an offence and on
conviction any competent court may impose, in its discretion,
a fine
or imprisonment, or a fine and imprisonment, or any suitable
punishment within its jurisdiction.”
[11] A passenger in
a train is obliged upon being requested to do so to hand over a valid
ticket, letter of authority or the applicable
cash amount for the
actual journey being undertaken. It is therefore clear from a proper
reading of the relevant section that,
to constitute an offence, the
plaintiff must either have failed to hand over a valid ticket, an
applicable letter of authority
or the cash amount for the journey
undertaken upon request. In this case however, the unchallenged
evidence remains that he was
not given the opportunity to present the
cash amount for the journey he undertook inside the train or later at
the police station.
[12] In argument, it
was contended on behalf of the defendant that the arrest of the
plaintiff was justified in terms of section
40(1) (a) of the Criminal
Procedure Act 51 of 1977 (the Act) as he boarded a train without a
ticket. Section 40 (1) (a) relied
upon provides that:
“
(1)
A peace officer may without a warrant arrest any person- (a) who
commits or attempts to commit an offence in his presence”.
An
arrest entails the exercise of discretion. There is no obligation on
the part of the police to arrest and detain every person
suspected of
having committed an offence (
Minister
of Safety and Security v Sekhoto and another)
[5]
.
[13]
The jurisdictional facts that are necessary for an arrest under s 40
(1) (a) are the following:
1.
the arrestor must be a peace officer;
2.
an offence must have been committed or
there must have been an attempt to commit an offence; and
3.
the offence or attempted offence must be
committed in his or her presence.
[14]
It is an established principle of our law that a decision by an
arresting officer to arrest and detain is a drastic one, which
invades the arrestee’s right to liberty and movement as
guaranteed in our Constitution. There is a duty on the part of the
police in the exercise of this discretion to arrest and detain, that
they be guided by enshrined constitutional principles and
thus be
careful not to infringe upon the rights and liberties of individuals.
In
Louw
v Minister of Safety and Security
[6]
,
Bertelsmann J said:
“
An
arrest is a drastic interference with the rights of the individual to
freedom of movement and to dignity. In the present past,
several
statements made by our Courts and academic commentators have
underlined that an arrest should only be the last resort as
a means
of producing an accused person or a suspect in court – Minister
of Correctional Services v Tobani
2003 (5) SA 126
(E)
[2001] 1 All SA
370
at 371f (All SA):
‘
So
fundamental is the right to personal liberty that the lawfulness or
otherwise of a person’s detention must be objectively
justifiable regardless … even of whether or not he was aware
of the wrongful nature of the detention.’
”
[15]
For the arrest to be lawful it has to be warranted by law. In this
case Matlala, who detained the plaintiff, had no personal
knowledge
of the alleged criminal conduct. Neither did he ask the plaintiff if
he was willing to pay for the train ticket as the
law provides. The
risk of unlawfully depriving the plaintiff’s right to liberty
was always there. (see also
Minister
of Safety and Security v Glisson
[7]
).
[16] Besides, the
offence in respect of which the plaintiff was arrested is not amongst
the list of offences referred to in terms
of section 40(1) (b) of the
Act since there is provision for a fine or a term of imprisonment in
his case. Since the plaintiff
was not afforded an opportunity to pay
for the train ticket, I find that there was no lawful arrest. He was
arbitrarily arrested
and for no sound reasons. Not only was the
plaintiff unlawfully arrested, so was his detention until his release
the next
day.
[16]
It remains to deal with the question of quantum. It is trite that
each case has to be dealt with on its own peculiar merits
regarding
quantum. From both sides, I have been referred to in number of cases
by counsel in this regard most of which I am aware
of. In
Mvu
v Minister of Safety and Security
[8]
,
the plaintiff, an inspector in the SAPS, was detained overnight in
the police cell but was released on warning the following day.
He was
awarded R30-000 -00 as damages. In
Minister
of Safety and Security v Seymour
[9]
an
award of R500 000 for five days of detention was reduced to
R90 000-00 on appeal. In
Minister
of Safety and Security v Tyulu
[10]
an amount of R50, 000-00 as damages was further reduced to R15,
000-00.
[17] In this case,
the plaintiff, who is a family man, was detained under circumstances
already dealt with in para 7 above. The
fact that he was arrested in
the presence of his colleagues and later detained, must have
humiliated him. However, it cannot be
said that the arrest was
carried out for an improper motive as the plaintiff admitted that he
had no train ticket. Counsel for
the plaintiff had in closing
submissions, argued that an amount of R65 000-00 would be
adequate as an award. In my view, a
fair and just award under the
circumstances for the plaintiff’s damages flowing from his
unlawful arrest and detention is
R30, 000-00. There is no reason why
the question of costs should not follow the result. The amount
suggested on behalf of the plaintiff
brings this matter within the
purview of the magistrates’ court’s jurisdiction.
[18] In the result
the following order is made:
The
defendant is ordered to pay the plaintiff the sum of:
1.
R30, 000-00.
2.
Interest on the aforesaid sum at the rate
of 9% from the date of judgment to date of payment.
3.
Costs of suit on the appropriate
magistrate’s court scale.
T
P Mudau
Acting
Judge of the High Court,
Gauteng
Local Division
Johannesburg
Appearances
For
the Plaintiff B L Mzamo
Instructed
By Mzamo Attorneys
For
the Defendant I S Ngwetjana
Instructed
By State Attorney
Date
of hearing 5 - 6 August 2015
Date
of judgment 11 September 2015
[1]
1988
(3) SA 19
(A) at 38B-C
[2]
2008
(2) SACR 1 (CC)
[3]
Act 108 of 1996
[4]
Act 9 of 1989
[5]
2011
(1) SACR 315 (SCA)
[6]
2006 (2) SACR 178
(T) at 185B-C
[7]
2007
(1) SACR 131
(E) at 134D-E
[8]
2009 (6) SA 82
(GSJ)
[9]
2006
(6) SA 320 (SCA)
[10]
2009 (5) SA 85
(SCA)