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[2016] ZAGPJHC 165
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Ngubane v Minister of Police and Another (31321/2012) [2016] ZAGPJHC 165 (20 May 2016)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
LOCAL DIVISION, JOHANNESBURG)
CASE
NO: 31321/2012
DATE:
20 MAY 2016
In
the matter between
MDUDUZI
RANDOLPH
NGUBANE
................................................................................
PLAINTIFF
And
MINISTER
OF
POLICE
.....................................................................................
FIRST
DEFENDANT
LT-COL
QANGASE
........................................................................................
SECOND
DEFENDANT
Delict
- unlawful arrest and detention - plaintiff arrested at his workplace
- police officers in meeting with plaintiff in investigation
of a
criminal case - plaintiff allegedly obstructing police officers in
the course of their duty -
not such
a serious case as to warrant an arrest and incarceration - claim
upheld.
Damages
- general damages - award of - plaintiff incarcerated in police
holding cell for three-and-a-half hours - embarrassment
and distress
- negative impact on plaintiff’s employability - R80 000-00
awarded - costs of High Court scale.
J
U D G M E N T
VAN
OOSTEN J:
Introduction
[1]
In this action the plaintiff claims damages for an
alleged unlawful arrest and detention. The plaintiff’s arrest
on 4 January
2012, at his workplace during mid-day and his detention
from approximately 14h30 until 18h00 that afternoon, are common
cause.
The defendants’ case is that the arrest was effected in
terms of
s 40(1)(j)
of the
Criminal Procedure Act 51 of 1977
, which
provides that a peace officer may without a warrant arrest any person
who wilfully obstructs him in the execution of his
duties and that
the plaintiff was detained in terms of
s 50(1)
of the CPA. The onus
to prove the lawfulness of the arrest is on the defendants (see
Duncan v Minister of Law and Order
1986
(2) SA 805
(A);
Minister of Law and
Order v Hurley
1986 (3) SA 568
(A)).
[2] In respect of
the plaintiff’s case the plaintiff and Daniel de Jager
testified. The second defendant was the only witness
called to
testify for the defendants.
Background
[3] Before I deal
with the evidence of the plaintiff’s witnesses it is necessary
to set out the background facts that lead
to the incident. The
plaintiff at the time of the incident was the managing director of
Tanker Services Fuel and Gas (Pty) Ltd
(Tanker) a subsidiary of
Imperial Ltd, with business premises situated in Germiston. He was
appointed in that position on 1 September
2011. He however, is
unemployed at this time. De Jager was, and still is, the national
investigator in the employ of the company,
a position he has held for
4 years. The reason for the second defendant and 3 of his colleagues
visiting the premises on the day
of the incident, has its genesis in
a complaint lodged at the Germiston police station, by one Yusuf
Hussein Hassen, concerning
an alleged theft under false pretences,
pursuant to a transaction he had concluded with Tanker in 2009.
Hassen, it is common cause,
had paid a cash amount of R200 000-00
into Tanker’s bank account, on 1 April 2009, which was the
purchase price of a
trailer sold to him by Tanker. For some reason
the tanker was never delivered to him and he specifically came from
Dar es Salaam,
in Tanzania to Germiston in order to obtain a refund
of his money. The plaintiff, of course, was unaware of the
transaction, as
it had occurred prior to his appointment. The
financial director of Tanker, Ms Magdelena Nel, was the
dramatis
persona
concerning the transaction.
[4] Two members of
the SAPS accompanied Hassen to the premises of Tanker on the day
before the day of the incident, but Ngubane
was not there, and they
promised to return the next day. The next day Hassen and the second
defendant, accompanied by three SAPS
constables, arrived at the
premises of Tanker. They were granted permission at the security gate
to enter the premises and they
were eventually invited to sit at
conference table in the office of the managing director, the
plaintiff. Also present were the
plaintiff, De Jager and Ms Nel. The
purpose of their visit and the subsequent meeting, the second
defendant testified, was to obtain
information concerning the
transaction.
The plaintiff’s
version
[5] The plaintiff
testified that he had been informed by Ms Nel of the police-visit the
previous day and that they would return.
As managing director of
Tanker he regarded it as essential that any refund of Tanker’s
monies should be done under his auspices.
The second defendant
informed the plaintiff that he was there ‘with my client’
to secure a refund of the monies he
had paid to Ms Nel. Hassen
produced the proof of payment of the amount. The plaintiff then
explained that the money had been paid
into a corporate account and
not to Ms Nel personally. At that moment the second defendant
instructed the constable sitting next
to him to handcuff the
plaintiff. The constable proceeded to cuff the plaintiff’s
hands behind his back. The plaintiff did
not say anything. The
meeting continued and he slowly gained an understanding of exactly
what the issue was. The meeting ended
sometime between 11h00 and
12h00. The police officers then grabbed him and escorted him out of
the office past the offices of other
employees, who were all able to
and did, observe what was happening, to the main gate. The police
officers first had a smoke and
discussed their shifts whereafter he
was shoved into the police van and taken to the Germiston police
station. There he waited
for an attorney who had been summoned by De
Jager, to arrive. He was allowed to phone his wife who in disbelief
assumed that it
was all a practical joke. At 14h30 he was taken to a
cell in which there were 5 to 8 other persons, in the most appalling
conditions.
He was eventually released at 18h00 and appeared in court
the following morning when all charges against him were withdrawn.
[6] De Jager
confirmed that he was present at the meeting. He expressed the view
to the second defendant that this was a civil matter
and challenged
the authority of the second defendant and his colleagues, as
uniformed policemen, to investigate the case which
according to him,
had to be conducted by detectives. The challenge, he testified, was
premised on his experience having been a
member of the SAPS for 18
years, 13 of which as a detective. He confirmed that the plaintiff
was handcuffed after having said that
the monies had not been paid to
Ms Nel personally but to the company, and added that he specifically
warned the second defendant
that the plaintiff was not obstructing
him and that ‘what he was doing, was wrong’.
The defendants’
version
[7] The second
defendant testified that after introducing himself and the other
members and explaining the purpose of their visit
to those present,
the plaintiff loudly, while banging on the table, interfered in
preventing him from asking any questions to Ms
Nel, resulting in it
becoming impossible to obtain any information from her. The
plaintiff, he continued, took issue with them
as uniformed police
officials, to conduct the investigation. The plaintiff used abusive
language in accusing them of being ‘useless’.
He warned
the plaintiff twice that he was interfering with and obstructing him
in the execution of his duties and that he would
have to arrest him,
but to no avail. He then ordered the arrest of the plaintiff ‘by
touching him on the shoulder’
and handcuffing him as he was
gesticulating. He explained his rights to the plaintiff and they all,
without more ado, in particular
without attempting to question Ms
Nel, left for the gate and then proceeded to the police station. The
plaintiff was charged with
obstructing the police in the execution of
their duties and a case of theft ‘was opened’ against
him.
Evaluation
of the evidence
[8] The evidence of
the plaintiff and De Jager, in my view, is to be preferred to that of
the second defendant. The second defendant
was an unsatisfactory
witness. His evidence in material respects was evasive and he
stubbornly latched onto plainly unacceptable
notions. He was unable
to recall anything more than the plaintiff’s alleged challenge
to their authority, as to have caused
the interference which he
maintained made it impossible to continue with the questioning. The
possibility of an ulterior motive
moreover cannot be excluded: a
second case of theft was ‘opened’ against the plaintiff
that same afternoon, for which
there was admittedly no justification
at all.
[9] The
probabilities, in my view, clearly support the plaintiff’s
version. The plaintiff had no prior experience concerning
the
operation of police investigations as opposed to De Jager who, having
been a member of the police, was well acquainted with
their internal
arrangements. It has not been argued that De Jager’s evidence
should be disregarded, nor am I able to find
any reason for doing so.
I therefore accept the version of the plaintiff.
[10] It should be
added that the arrest, even on the version of the second defendant
was unlawful. This was not such a serious case
as to warrant an
arrest and incarceration. The second defendant was a senior police
officer with some 28 years’ experience;
he was in control of
the meeting and could have exercised restraint and common sense in
employing less drastic measures than an
arrest particularly where a
managing director of a company was involved. On the contrary, he
testified that he considered himself
bound to arrest the plaintiff
once he had interfered with his duties. It is abundantly clear from
his evidence that he did not
at all consider any alternatives (see
Louw and Another v Minister of Safety and Security and Others
2006
(2) SACR 178
(T) 186-8).
[11] For all the
above reasons I hold that the arrest of the plaintiff was unlawful
and it follows that plaintiff’s claim
must succeed.
Quantum of
damages
[12] There can be no
doubt that the arrest and detention of the plaintiff caused him
embarrassment and distress. It has moreover
negatively impacted on
his employability. He endured the indignity of being paraded to the
main gate while handcuffed for all and
sunder, in particular his
sub-ordinates, to observe. His dreadful experience being incarcerated
in a cell in appalling circumstances,
needs no further comment.
[13] Plaintiff
contended for an award of general damages of R80 000-00 as opposed to
the amount of R35 000-00 contended for
by the defendant. I have
reviewed the numerous cases in which awards were made for shorter
periods than 12 hours detention and
I have come to the conclusion
that an award of R8k0 000-00 is fair and reasonable in the
circumstances of this case.
Costs
[14] Counsel for the
defendant submitted that costs on the appropriate magistrate’s
court scale should apply. I do not agree.
I consider that costs on
the high court scale would be appropriate.
[15] In the result
judgment is entered for the plaintiff against the defendants, who are
ordered, jointly and severally, the one
paying the other to be
absolved, to pay:
1.
The amount of R80 000-00.
2.
Interest on the amount in paragraph 1 above
at the applicable
mora
rate,
from 30 days after the date of this judgment until final payment.
3.
Costs of suit.
FHD
VAN OOSTEN
JUDGE
OF THE HIGH COURT
ATTORNEY
FOR PLAINTIFF MR L KOTZÉ
PLAINTIFF’S
ATTORNEYS BOTHA & SUTHERLAND
COUNSEL
FOR DEFENDANTS ADV Z BUTHELEZI
DEFENDANTS’
ATTORNEYS THE STATE ATTORNEY
DATES
OF HEARING 19 & 20 MAY 2016
DATE
OF JUDGMENT 20 MAY 2016