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[2016] ZAGPJHC 151
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Devenish v Minister of Safety And Security (07151/2013) [2016] ZAGPJHC 151 (20 May 2016)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO. 07151/2013
DATE:
20 MAY 2016
In
the matter between:
DEVENISH,
BARRY
PHILLIP
..................................................................................................
Plaintiff
And
MINISTER
OF SAFETY AND
SECURITY
..........................................................................
Defendant
JUDGMENT
NOCHUMSOHN
AJ
1.
This is a claim for damages arising out of
the arrest and detention of the plaintiff at the Fairland Police
Station on the evening
of 9 December 2010, at 22h00.
2.
The plaintiff a 58 year old male (at the
time of the arrest), civil engineer, was arrested without a warrant,
by Constable Richard
Ndebele of the Fairland Police Station and was
detained overnight in Police cells at Fairland Police at the instance
of the said
constable and other members of the South African Police
Services, whose names and ranks are unknown to the plaintiff.
3.
The arrest and detention is common cause
and was admitted by the defendant in the Plea.
4.
I was informed by counsel at the
commencement of the second day of the hearing that it was common
cause between the parties that
the plaintiff was liberated at 11h00
on the morning of 10 December 2010.
5.
It was further admitted that Constable
Ndebele and other members of the South African Police Service were
all acting within the
course and scope of their employment as
Policemen with the South African Police Services in relation to the
arrest and detention
of the plaintiff.
6.
The summons embraces two claims. The
first claim lies in general damages for R300 000.00, arising out
of the arrest and
detention. The second claim is for special
damages of R10 000.00 and general damages of R100 000.00,
arising out
of the wrongful and malicious laying of a criminal
charge. In argument, plaintiff’s counsel abandoned the claim
for special
damages of R10 000.00.
7.
With reference to
Minister
of Law and Order & others v Hurley & another 1986(3) SA
568 (AD) 589 E – F
,
Counsel for the plaintiff, Adv L du
Bruyn, rightly persuaded me that unlawfulness is not an element
required to be alleged inasmuch
as the onus lies upon the State to
prove the lawfulness of the arrest.
8.
In relation to the second claim, the
plaintiff's case was that the criminal proceedings were initiated
without reasonable or probable
cause, with
animus
iniuriandi
and with malice.
9.
In argument Plaintiff’s counsel
agreed with me that the second claim is academic for purposes of this
case, given that the
true damages flow as a product of the arrest and
detention of the plaintiff overnight. Counsel conceded that there is
not much
room for entitlement to any damages arising out the
initiation of the charge, if same was initiated on the morning
following the
arrest, in circumstances where such charge was brought
to an end some two to three hours later by the Senior Public
Prosecutor
who declined to prosecute. Had a malicious prosecution
ensued and the plaintiff been made to stand trial, it would have been
incumbent
upon me to deal with such claim. This was not the
case and whatever damages arise out of the initiation of the charge,
in
the circumstances of this case, coincides with the damages which
flow arising out of the arrest and detention.
10.
On the morning of 10 December 2010, a
charge for the defeating the ends of justice was initiated and the
plaintiff was taken to
the Newlands Magistrate's Court where he was
released from custody after the prosecutor declined to prosecute.
As stated,
it is common cause that the release took place at 11h00 on
10 December 2016.
11.
In terms of the Pre-Trial Minute, it was
agreed between the parties that the defendant had the duty to begin
and must prove the
lawfulness of the arrest and detention.
12.
In his opening address, counsel for the
plaintiff argued that the defendant must prove that in terms of
Section 40(1)(j) of the
Criminal Procedure Act the arresting
officer who arrested the plaintiff on a charge of wilfully
obstructing him in the execution
of his duties, is required to prove
the following:
12.1.
That there must be an element of physical
force;
12.2.
That the defendant must show in respect of
the arrest and detention that the arresting officer exercised his
discretion properly;
12.3.
That arrest is the only method available in
order to secure an attendance at court, in terms of Section 38 of the
Criminal Procedure
Act.
13.
Counsel submitted further in his opening
address that there is a standing Police Order to the effect that
arrest is the harshest
of inroads into deprivation of liberty and
that the requirements of the Criminal Procedure Act are to determine
a person's full
name, his address, his employment, address of his
employment, and only thereafter can one determine whether or not one
would be
a flight risk. It was argued that without making these
inquiries, an arresting officer is unable to exercise such a
discretion.
14.
In relation to the detention of the
plaintiff, it was argued that the plaintiff ought to have been
granted police bail.
15.
In his opening address, counsel for the
plaintiff mentioned that the requirements for proving a case based
upon a malicious prosecution
are the following:
15.1.
The defendant must have set the law in
motion in order to instigate the proceedings;
15.2.
The defendant must have acted without
reasonable and probable cause;
15.3.
The defendant must have acted with malice;
15.4.
The prosecution must have failed.
16.
For the reasons mentioned above the second
claim is academic in this case and there is no need for me to make a
finding as to whether
or not the requirements set out in paragraph 15
above were met.
17.
At the commencement of the trial, the
parties informed me that no evidence would be lead on quantum and
that this aspect of the
case would be dealt with in argument.
18.
The defendant began by calling as its one
and only witness, Warrant-Officer Motlokwa Athangs Monyemangene.
19.
Mr Monyemangene testified that he is a
Warrant-Officer in the employ of the defendant, that he could
slightly recall the events
in relation to the plaintiff's case, that
he worked at the Fairland Police Station at the time and still does,
that he was not
on duty on the night of the 9 December 2010, that he
remembered that Officer Ndebele had arrested the plaintiff, who was
detained
overnight at the Fairland Police Station.
20.
He was asked in chief if he could confirm
that the arrest took place at 11h00. Counsel for the
plaintiff rightfully
objected on the basis that if the
warrant-officer was not present at the time of the arrest, he could
not testify to any of its
details.
21.
He testified that he arrived at the police
station the following morning, went to the Charge Office, to check
the dockets that had
arrived and to be informed of people who were
arrested. He looked at the names, and saw the plaintiff had
been arrested together
with his son. He later
corrected this to say his daughter and I accept the interpreter's
explanation that the
confusion between son and daughter was an error
on the part in interpretation.
22.
Monyemangene testified further that he
started to read the Record and saw that there was a case against them
and from there he took
the matter to court. He testified
that it was the duty of the court to make its decision concerning the
alleged case.
From this I deduce that Monyemangene initiated
the charge on that morning.
23.
Monyemangene was asked what made him charge
the father with interfering with the police duties. The answer was
that when they opened
the docket he was swearing at the police and he
was saying "
my daughter was not
supposed to be arrested".
24.
When asked whether he could have decided to
release the plaintiff, the answer was that he could have decided
whether to release
him on bail or whether to take him to court.
He testified that it would be in the hands of the court to decide
whether it
is going to release the plaintiff.
25.
He qualified this by saying he was vested
with the discretion to grant police bail but that would be rendered
dependent upon the
circumstances as to whether the accused had a
fixed address, fixed employment, had previous convictions and was
considered to be
a flight risk.
26.
Mr Monyemangene went on to testify that
once he had read the docket, he thought it best to take the plaintiff
to court.
27.
When asked what the reasons for the arrest
was, he uttered words to the effect that the plaintiff had been
interfering with the
police in the execution of their duties, had
insulted the police and gave the police instructions as to how they
should go about
doing their work.
28.
This witness testified that he was on
standby and when asked to explain what that means, he answered that
he could be phoned to
attend serious cases such as robbery, murder,
business robbery but that for minor cases he would not be informed
after hours.
He qualified this answer further by adding
that he would only attend to minor cases on the following morning and
testified that
he was not phoned for the arrest of Mr Devenish, as
this was not a serious case.
29.
In response to being asked how police bail
operated, Mr Monyemangene testified that for schedule 1 cases he was
allowed to grant
police bail whereas for schedule 6 offences, this
was not allowed. He qualified this by stating that in order to
grant police
bail, the police would ascertain whether an accused has
a fixed address, fixed employment, whether or not there are previous
convictions
and whether or not the person is a flight risk.
30.
When asked what the elements are for
wilfully obstructing police in the course of their duties,
Monyemangene responded in specific
terms to the plaintiff's case
rather than to answer the question in general terms, as it was put to
him. This was this
witness' style of answering questions
under cross-examination throughout. His answer to the question
was when the person
arrives in a fighting mood with the police saying
"I want this person to be released” and starts swearing at
the police,
that person must be arrested.
31.
He was then asked "Is it your evidence
that swearing at the police or if the person tells the police how to
do their job, that
such conduct would be obstructing the police in
the course of their duties." Monyemangene's response
was "If
you see the person arrive in a fighting mood saying I
want my daughter released now, using abusive language, that person
will never
be released because he is in a fighting mood."
32.
I pause to mention that swearing does not
give rise to obstructing the police in the execution of their duties.
I refer to
S v Sharp 2002(1) SACR 360
paragraph 13 at 372 E,
where a
police officer was called a “
bitch”,
it was said:
“
By
the very nature of her work as a police inspector in the SA Police
Services it is more than likely that she had been exposed
to
situations previously where individuals had used rude or abusive
language in her presence and probably even directed it at her.
Such language, I dare say, may even have made a sailor blush
……..
Further, the word bitch is now also part
of everyday parlance and scarcely raises an eyebrow in
conversations.”
33.
Counsel for the plaintiff then put it to
the Warrant-Officer that for somebody to wilfully obstruct the police
in the execution
of their duties, there must be a physical element,
the answer was words to the effect that it is an obstruction if the
conduct
is insulting, pointing fingers, how then do the police
defend?
34.
Counsel then reasserted to the witness that
there must be a physical obstruction to which the witness correctly
answered that as
far as this matter is concerned I cannot go deeper
as I was not there.
35.
The Warrant-Officer testified further under
cross-examination that when he arrived at work on the morning of 10
December there was
no indication of any attempt to verify the
plaintiff's residential address, work address or whether or not the
plaintiff had been
afflicted with previous convictions. His
answers were simply to the effect that it takes time to ascertain
previous convictions,
it was not a computerised process and one Peter
was vested with the duty to establish this and he was unable to
ascertain whether
or not it had been done. The
Warrant-Officer did however testify that in his own judgment, he did
not consider the
plaintiff to be a flight risk.
36.
It leaves one mystified as to why no steps
were taken to ascertain all these elements set out in paragraph 35
above on the evening
of the arrest and detention, as the answers to
these questions would have undoubtedly led to the granting of Police
bail.
37.
Finally, Monyemangene testified that he did
not know the plaintiff, he did not have any details of who he was. He
testified that
the person whose duty it was to verify the plaintiff's
profile was one Mostert, but he did not know whether Mostert had made
these
inquiries.
38.
The defendant then closed its case without
calling any further witnesses.
39.
The plaintiff was then called to testify as
the first witness for the plaintiff's case.
40.
The plaintiff testified that he was born on
16 March 1953, making him 58 years of age in December 2010 at the
time of his arrest,
that he lived at number 40 Deneys Reitz Road for
the past twenty-two years, has been married since 18 March 1995, has
two natural
children and two step-children, the step-children being
31 years and 28 years of age respectively and his daughter, Erin,
being
25 years of age and his son, Liam, being 20 years of age
respectively.
41.
The plaintiff testified that when he was
arrested, his daughter, Erin was 19 years of age and that the events
of the arrest took
place on Thursday night 9 December 2010.
42.
The plaintiff was at home with his wife,
Helen, when he received a call between 9 and 10 p.m. from his
daughter, Erin, to say that
she had been arrested for jumping a red
robot. He instructed her to wait at the scene, corner
Mountainview Road and Beyers
Naude Drive in Blackheath.
When he arrived at the scene, he was confronted by arrogant
unco-operative police and was
arrested by two male and one female
member of the police. He did not know their names but
subsequently discovered that the
male constable who was running the
operation was named Constable Ndebele.
43.
The plaintiff testified that he tried to
explain to the police his policy that he had instructed his children
to drive to the nearest
police station as had been mentioned by the
media.
44.
When asked in chief what had been said by
the media, he explained that if one was worried about the identity of
people (referring
to the police), one ought to drive to a
police-station or to a well-lit spot.
45.
The plaintiff testified that he tried to
explain this to the constable, but this explanation was dismissed as
unacceptable. Thereafter
his wife pleaded with the officials and
explained that his daughter had not gone through a red robot, that
there had been a right
flashing arrow, but the explanations were to
no avail.
46.
Two policemen arrived thereafter in an
unmarked car, but both in uniform. The name tag on one was
Dooley and the other was
an unidentified constable.
47.
The plaintiff testified that he tried to
explain the position to Dooley and the unidentified constable, but
they were also unco-operative.
48.
He said his wife pleaded with them to let
them go home, but that did not work either.
49.
He testified that Constable Ndebele then
said he was arresting Erin and taking her to the Fairland Police.
The plaintiff said
he would not allow her to ride in a police van on
her own. The plaintiff offered to take Erin in his car,
which was
unacceptable to the constable. The plaintiff
then said he would go with her in the back of the van. Thereafter,
the
constable said ꞌYou also go in the back, you are also
arrestedꞌ.
50.
The plaintiff was then informed in chief
that the State's evidence was that he had sworn at the police, which
the plaintiff denied.
51.
The court asked the plaintiff if he
inquired from the constable why Erin was being arrested.
His answer was no it was
implied that it was as a result of going
through a red robot.
52.
The plaintiff then testified that upon
arrival at the Charge Office they were jeered and laughed at and that
Dooley and the other
unidentified constable failed to arrive at
Fairland Police.
53.
The plaintiff testified that when he asked
to be released on bail, he was informed that it was not possible.
This was the only response.
54.
When asked in chief whether he or Erin had
been accused of anything else, the plaintiff testified that he has a
speech impediment
which activates when tired or excited as a result
of which the police thought that he was drunk, but he was not, and he
had offered
to undertake a breathalyser test and was not taken up on
that offer. He testified further that the demeanour at the
police-station
was one of jeering and the police in question had said
words to the effect that "We are the law and you cannot touch
us."
55.
The plaintiff testified that he was
unimpressed with the behaviour of the police officials.
56.
The plaintiff testified further he was then
placed in the police cells and that his daughter had been asked to
sign a sheet stating
her rights, but no such offer had been extended
to him.
57.
The plaintiff described the conditions in
the cell as sub-human, last cleaned in 1950, with a tap running with
smelly awful blankets.
He described the toilet as a hole in the
ground against a wall, which was not private, the cell was dirty and
not well-ventilated.
58.
His bedding comprised a pile of smelly
mattresses which had been thrown on concrete.
59.
The plaintiff testified that there was one
other male inmate, but the cell could accommodate eleven or twelve
people.
60.
Although I am not called upon to make
Constitutional findings, these conditions would appear to be quite
appalling and in contravention
of Section 35(2)(e) of the
Constitution of the Republic of South Africa which provides:
“
Everyone
who is detained, including every sentenced prisoner, has the right to
conditions of detention that are consistent with
human dignity,
including at least exercise and the provision, at state expense, of
adequate accommodation, nutrition, reading material
and medical
treatment.”
61.
The plaintiff testified that his daughter
had been placed in the cell next door with another lady.
62.
The plaintiff testified that he obtained
the services of a lawyer the next morning, he did not make a
statement and was informed
that he would be taken to Newlands
Magistrate's Court.
63.
The plaintiff confirmed that he was charged
that morning but when taken to court, the public prosecutor declined
to prosecute him.
64.
The plaintiff testified that prior to being
taken to court, the station commander at Fairland Police invited him
to an interview
with the Community Police Forum Chairman. In
this interview the Station Commander enquired why he had not phoned
him and
mentioned words to the effect that ꞌthis could have
gone awayꞌ, but that he could not squash the case now, as the
docket was opened.
65.
The plaintiff testified that he was not
able to call the Station Commander the previous evening.
66.
When asked to comment about the events, the
plaintiff testified that he could not believe that the police had
acted with such little
discretion. He felt that as a citizen both his
and his daughter's rights had been violated.
67.
He testified that he was a structural
engineer in private practice with some 35 to 40 years experience.
At no stage had Constable
Ndebele asked him for his full name or his
surname. At no stage did anybody at the police station request
his full name.
This was first done when the Detective
interviewed him the next morning. Furthermore, at no stage did
Constable Ndebele ask
what his employment was or whether or not he
was afflicted with previous convictions. Neither was he asked
anything about
his status in the community.
68.
When asked how these events affected the
plaintiff, he testified that he felt as though he had been raped and
unable to defend his
family.
69.
Under cross-examination by the defendant's
counsel, the plaintiff was asked to read out paragraph 4 of an
Affidavit deposed to by
Jacqueline Trollope, who was not called to
testify.
70.
This affidavit appeared at page number 8 to
bundle C of the court documents.
71.
Although item 15 to the Pre-Trial Minute
reads that "No proof will be produced by way of Affidavit"
in terms of Rule 38(2)",
in item 17 of the Pre-Trial
Minute it was agreed that documents would serve as evidence of what
they purport to be and would not
form part of the Record unless
referred to in evidence.
72.
As soon as counsel for the defence
attempted to utilise this Affidavit in cross-examination of the
plaintiff a lengthy objection
was debated before me on the part of
plaintiff's counsel to the effect that Trollope had not been called
by the defence, the defence
had closed its case and could not call
Trollope, and, the plaintiff would not be calling Trollope who was
apparently on a cruise
ship.
73.
Counsel for the defence argued that I ought
to allow questioning on this Affidavit in the interests of justice,
which I reluctantly
yielded to, but in doing so expressed my
reservations as to its probative value without Trollope having been
called.
74.
The plaintiff was then asked to read
paragraph 4 of the Affidavit into the Record, but was not questioned
as to whether that version
was true or false. The paragraph in
question reads as follows:
"
Erin's
parents then arrived and tried to explain why Erin had wanted to
drive to the nearest police station. However they
were just
ignored. Barry Devenish advised that he had always explained to Erin
that if she felt unsafe and was unsure that she
should drive directly
to the nearest police station and deal with the situation there. Erin
was arrested and when her father refused
to let Erin go in the police
van alone, the policeman then refused to let her father go in the van
with her and told him that if
he insisted on going in the van with
her then he would be arrested. He was then arrested."
75.
At best for the defence. the Affidavit
demonstrates, on Trollope's version, that the policeman refused to
let the plaintiff go in
the van and told him that if he insisted on
going in the van with his daughter, he would then be arrested.
Nothing much turns on
this version and it does not materially differ
from the version which the plaintiff himself put forward.
76.
The plaintiff's version was that he would
not allow his daughter to go in the police van alone. It
is perfectly understandable
that as the father of a 19 year old girl,
he would have concerns about her being taken away in the back of a
police van late at
night as she would no longer be under his parental
care and control.
77.
The plaintiff did what any caring and
concerned father would do in circumstances where his daughter was
being arrested in the middle
of the night on frivolous charges.
Whilst climbing into a police van may be a contravention of
other legislation, it does
not give rise to obstructing the police in
the exercise of their duties. Even if the police were
exercising a lawful duty
in arresting the plaintiff’s daughter,
the act of climbing into the van with his daughter does not give rise
to an obstruction.
78.
As the content of the Affidavit of Trollope
does not take the matter any further or serve to prove the lawfulness
of the arrest
in any manner, it becomes an exercise in futility for
me to apply my mind as to whether the Affidavit is admissible.
79.
The plaintiff then called its second and
final witness, Herbert William Joseph Stephens, who testified that he
was the brother-in-law
of the plaintiff, that he had received a
telephone call at around 10h00 or 11h00 p.m. on the evening of 9
December 2010 and informed
of the arrest.
80.
He proceeded to the Fairland Police and
inquired whether or not his brother-in-law and niece were in custody
at the police station.
He was asked whether or not he was an
attorney and indicated that he was a family member. He
requested to see the officer
in charge and was referred to a
sergeant, but could not remember his name. It was then
confirmed to him that his brother-in-law
and niece were in custody.
81.
When he asked on what charges his niece had
been arrested, he was advised that it was on a charge of reckless and
negligent driving.
82.
When he was asked on what basis the
plaintiff had been arrested, he was advised that it was on defeating
the ends of injustice and
in his words "
They
considered him to be under influence of alcohol because his speech
was slurred".
When asked how he
responded to this, he mentioned he responded by saying to the police
that the plaintiff suffered from a speech
impediment and had he been
tested for alcohol, they would have realised that there was no
foundation to this suspicion.
83.
This witness indicated that he mentioned to
the sergeant that he did not think that the police were conveying a
good public image
by having six police officers involved in the
arrest of a 19 year old girl for a minor offence.
84.
Mr Stephens testified that he then asked if
he could see his brother-in-law and niece and was told that he could
not, but the sergeant
then said that he was not the person in charge
and that he would have to see Warrant-Officer Naidoo.
85.
Stephens testified that he proceeded
through to the offices and was told to wait outside Warrant-Officer
Naidoo's room, when the
sergeant went inside and conversed with
Naidoo. Naidoo then walked out and ignored him and walked down
the passage.
The sergeant then came out and said that they must
see another Warrant-Officer whose name Stephens could not recall.
They went looking for this other Warrant-Officer, found him sitting
in a car listening to the radio.
86.
Stephens then asked why his brother-in-law
and niece could not be released. The Warrant-Officer got out of his
car, and informed
Stephens that there was nothing that he could do to
release them as a docket had already been opened.
87.
Stephens then testified that there was
nothing more that could be done. His sister-in-law then raised
the question of bail
and they said they could not find the Bail Book
or the Bail Register. He then made no further reference
to this bail
discussion, which he testified took place in his
presence.
88.
Stephens testified that he then left the
police station and indicated that he would return in the morning as
the plaintiff needed
his medication. He left without having
seen his brother-in-law or niece that night.
89.
Stephens testified further that on arrival
the next morning he met the Warrant-Officer, who he identified
as Warrant-Officer
Monyemangene, who he found to be rather
arrogant. Stephens testified that he had been instructed
to inform the Warrant-Officer
that there would be a case of wrongful
arrest opened against the police and at that stage there was an
altercation between his
wife, her sister and the other officers.
At this time one of the officers waved a finger under his wife's nose
and said words
to the effect :
"
We are the
law, we can do what we like".
90.
Stephens testified that he then requested
his wife to leave before she ended up arrested.
91.
He was told by the Warrant Officer that he
had not as yet completed the docket and did not know if he could
complete it that day
and that his brother-in-law and niece might have
to spend the weekend in jail. Stephens testified that he
started to
become annoyed and put it to the Warrant-Officer that he
thought that he was abusing his powers and would take whatever steps
he
could to make sure that he does not get away with this.
92.
I put to the counsel for the plaintiff that
I could not attribute too much cogency to this evidence as this
version had not been
put to Warrant-Officer Monyemangene who had
testified the day before, which served to neutralise this evidence.
93.
Stephens testified that he arranged for an
attorney, he left the charge office and waited for the outcome at
court.
94.
All that was extracted from Mr Stephens
under cross-examination by the defence was that he was unable to call
an attorney at 1.00
a.m., he was not in the legal field, he is an
insurance loss-adjuster, did not know where to find an attorney at
1.00 a.m., had
left the police station at 1.00 a.m. and did not know
who to call.
95.
The plaintiff then closed its case.
96.
Having regard to all the evidence, I am
required to determine whether or not the defendant has proved the
lawfulness of the plaintiff’s
arrest and detention. If
the arrest is not proved to have been lawful, I am then required to
determine the quantum of the
general damages to be awarded to the
plaintiff, as well as the costs of the suit.
97.
The defendant’s case was that the
arrest was one in terms of Section 40(1)(j) of the Criminal Procedure
Act 51 of 1977 (“the
Act”) in terms of which a peace
officer may without a warrant arrest any person who wilfully
obstructs him in the execution
of his duty.
98.
Counsel for the plaintiff, correctly in my
view , submitted that the jurisdictional facts for a section 40(1)(
j
)
defence are
98.1.
the arrestor must be a peace officer;
98.2.
the arrestee must wilfully obstruct the
arrestor in the execution of his duty;
98.3.
the arrestor must exercise a lawful duty;
and
98.4.
the arrestor must properly exercise his
discretion to arrest.
99.
To bring the case within the ambit of
section 40(1)(
j
),
the Defendant had to prove that there was a physical aspect to the
Plaintiff’s alleged obstruction of Constable Ndebele
in the
execution of the latter’s duty, although it may not be
necessary that any force or violence should be used. This is
in line
with
R vs Weyer
1958 (3) SA 467
(GWLD) 472A
, per Diemont J “
to
bring a case within the section it must be proved that the
obstruction had a physical aspect, although it may not be necessary
that any force or violence should be used.”
This
was reiterated in
S v Serra
1968 (1)
SA 292
(ECD) 293 F
.
100.
On the evidence of the plaintiff which must
be accepted as the truth, absent the calling by the defence of
Constable Ndebele, there
was nothing in the plaintiff’s conduct
which constituted a physical aspect which would serve to have
obstructed Ndebele in
the execution of his duties. Although I
am not called upon to make a finding, I have some doubt as to whether
or not Ndebele
was exercising a lawful duty in arresting the
plaintiff’s daughter. Counsel for the plaintiff suggested
in argument
that I could take judicial notice of the fact that Erin
had launched a separate action in this division relating to her
unlawful
arrest, which was settled on the basis of the State having
capitulated on the merits. I make no finding as to
whether
or not I may take such judicial notice, but do find that the
climbing into the police van by the plaintiff for the protection of
his daughter, as he did, could not have served to physically obstruct
Ndebele in the arrest of Erin, whether such arrest was lawful
or not.
101.
The point was well made in
Minister
of Safety and Security v Sekhoto & another 2011(5) SAC 367 (SCA)
paragraph 28 at 379 (D)
“Once
the jurisdictional facts for an arrest, whether in terms of any
paragraph of Section 40(1) or in terms of Section
43 are present, a
discretion arises. The question whether there are any
constraints on the exercise of discretionary
powers is essentially a
matter of construction of the empowering Statute in a manner which is
consistent with the Constitution.
In other words, once the
required jurisdictional facts are present the discretion whether or
not to arrest arises.
The officer, it should be
emphasized is not obliged to effect an arrest. This was made
clear by this court in relation to
Section 43 in
Groenewald
v Minister of Justice 1973(3) SA 877 (A) at 883G to 884B.
102.
From the evidence it is clear that no
proper discretion was exercised on the part of Ndebele in effecting
either the arrest or detention
of the plaintiff. To some
extent the plaintiff may have arrested himself by insisting upon
climbing into the back of
a police van on the way to the police
station in order to accompany his daughter, but it did not end there,
as he could and should
have been released upon the arrival at the
police station. There was simply no just cause to detain him.
103.
With reference to
“
Pharmaceutical
Manufacturers Association of South Africa & another: in re
Ex parte President of the Republic of South
Africa and others
[2000] ZACC 1
;
2000
(2) SA 674
(CC) paragraphs 85 – 86 at 709 D – F,
I find that the discretion exercised by
Ndebele was arbitrary and not executed properly or objectively, as
one would have expected
of a policeman in the circumstances.
His decision to arrest and detain was not rational and did not meet
the
purpose for which his powers were conferred upon him, in an
objective sense.
104.
Section 38(1)
of the
Criminal Procedure Act
contains
the following relevant provisions:
“
[T]he
methods of securing the attendance of an accused who is eighteen
years or older in court for the purposes of his or her trial
shall be
arrest, summons, written notice and indictment in accordance with the
relevant provisions of this Act.”
105.
There is no evidence that Ndebele
considered –
105.1.
applying for a warrant for the Plaintiff’s
arrest in terms of section 43 of the Act;
105.2.
requesting the prosecuting authority to
issue a summons for the Plaintiff in terms of section 54 of the Act;
or
105.3.
handing to the Plaintiff a written notice
in terms of section 56 of the Act.
106.
It is apparent that Ndebele never
considered any of these options, because he –
106.1.
immediately arrested the Plaintiff when the
latter allegedly obstructed him; and
106.2.
did not ask the Plaintiff for his full
names, surname, residential address, occupation or status (as he
would have been required
to do in terms of
Section 56
of the
Criminal
Procedure Act).
107.
With
all of the above law and facts on the
evidence correctly contextualised, I am left with no doubt that the
arrest of the plaintiff
was unlawful. Furthermore, there was
nothing in the defendant’s case that could have come remotely
close to proving
the lawfulness of the arrest. It therefore
stands to reason that the detention of the plaintiff was similarly
unlawful.
I support this supposition with reference to
Minister
of Safety and Security v Tyokwana
2015 (1) SACR 597
(SCA) 600 G
and
I quote “
If the arrest of the
respondent was unlawful it would follow that his subsequent detention
was also unlawful”.
108.
Even where an arrest is lawful, a police
official must apply his mind to the arrestee’s detention and
the circumstances relating
thereto. The failure by the police
official properly to do so is unlawful. The mere compliance with
section 40(1)(
j
)
of the Act does not automatically render the Plaintiff’s
detention lawful.
109.
Section 59(1)(
a
)
of the Act provides as follows:
“
An
accused who is in custody in respect of an offence, other than an
offence referred to in Part II or Part III of Schedule 2 may,
before
his or her first appearance in a lower court, be released on bail in
respect of such offence by any police official of or
above the rank
of non-commissioned officer, in consultation with the police official
charged with the investigation, if the accused
deposits at the police
station the sum of money determined by such police official
”
110.
It remains a mystery as to why police bail
was not offered to the plaintiff and no attempts were made to
ascertain the facts necessary
to meet bail criteria, all of which
were present. The plaintiff had a permanent address
for some twenty years,
worked as a civil engineer for some 35 to 40
years, had been married for fifteen years, had two children, had two
step-children
and was not a flight risk.
111.
The following was held in
MacDonald
v Kumalo
1927 EDL 293
at 307 and 308
:
“
[I]t
is the duty of the officer authorised to grant bail to do so, unless
he has substantial grounds for refusing, and the intention
of the
proviso appears to us to be defeated if, as disclosed in the evidence
in this case, the officer empowered to grant bail
goes off duty at 5
p.m., and the bail book is locked up. This practice is certain to
lead to abuse, and many presumably innocent
men may be compelled to
spend the night in a police cell on charges of petty offences, who
undoubtedly would have been released
if the officer had been present…
This is another reason why the police should exercise the power of
summoning for petty
offences in place of arresting and charging the
offender.
112.
The only thing left for me to determine is
the quantum of the general damages to which the plaintiff is
entitled. With
reference to the unreported judgment of
Epstein A J
in
this division
Phasha, Thabo Sydney v
Minister of Police Case No. 25524/2011,
an
award of R80 000.00 was made in circumstances where the claimant
had been incarcerated for nine hours terminating at 9.30
p.m.,
without spending a night in the cells. Such judgment was
delivered on 29 November 2013 and if one applies the
Consumer Price
Index, such award would equate to some R93 500.00 in today’s
terms. More pertinently, at paragraph
39 of the judgment,
Epstein A J
says:
“
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.”
113.
Similarly, in the case of
Van
Rensburg v City of Johannesburg 2009 (2) SA101
in
this division,
Horwitz A J
,
awarded in similar circumstances an
amount of R70 000.00 to a 74 year old gentleman, a retired
accountant, a very decent person,
dignified, courteous, soft-spoken
and urbane. The detention in this instance was for a very short
space of time between the
hours 11h00 to 06h00. At (i) on
page 110
Horwitz A J
ruled
“
Viewing of the facts of the case
as a whole, I believe that justice would be done were I to award an
amount of R75 000.00.”
Although
the quantum falls within the jurisdiction of the Magistrate’s
Court, the plaintiff was in my view, justified
in seeking redress in
the High Court. Added to that is my distaste for the behaviour
of the defendant’s Metro Police
and their indifference to the
lot of a respectable citizen. I intend therefore to award costs
on the High Court scale.
114.
I too note my distaste, as did
Horwitz
A J
in
Van
Rensburg supra,
at the manner in
which Constable Ndebele and others at both the time of arrest and
detention conducted themselves.
115.
The plaintiff made a very good impression
as a witness, as did his brother-in-law, Mr Stephens. The plaintiff
is clearly a refined
gentleman, a highly contributory member of
society, a good citizen, a professional civil engineer of some 40
years standing, a
family man with strong family values who did what
he did for the protection of his daughter, whom he was left to worry
about whilst
placed in his police cell, knowing that she had been
placed in the adjacent cell. This all falls to be taken into account
in the
determination of a general damages award to compensate for the
plaintiff’s deprivation of liberty, distress, inconvenience,
humiliation and injury to his dignity. In debate with me in argument,
counsel for the plaintiff suggested, in the context of the
judgments
referred to and the dates upon which they were delivered, that the
sum of R150 000.00 would suit.
116.
Accordingly, judgment is hereby granted
against the defendant in favour of the plaintiff for:
116.1.
Payment of R150 000.00;
116.2.
Interest thereon at the mora rate from the
date of summons;
116.3.
Costs of the suit on the scale as between
party and party at the rate applicable for actions instituted out of
the High Court.
G
NOCHUMSOHN
ACTING
JUDGE OF THE HIGH COURT
20 MAY 2016
Date
of Hearing: 17, 18 and 19 May 2016
Date
of Judgment: 20 May 2016
Counsel
for the plaintiff: Mr L du Bruyn
Instructed
by: Levin, Tatanis Incorporated
Counsel
for the defendant: Adv Liphosa
Instructed
by: The State Attorney