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[2019] ZAGPJHC 9
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E A and Others v Minister of Police (14/41567) [2019] ZAGPJHC 9 (12 February 2019)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
CASE NO: 14/41567
In the matter
between:
E
A
First
Plaintiff
E
A
obo
Second
Plaintiff
N
K (I.D. …)
E
A
obo
Third
Plaintiff
A
K (I.D. …)
E
A
obo
Fourth
Plaintiff
L A (I.D. …)
E
A
obo
Fifth
Plaintiff
K
A (I.D. …)
ELAINE AFRIKA obo
A
A (I.D.
…)
Sixth
Plaintiff
and
THE
MINISTER OF
POLICE
Defendant
J U D G M E N T
MABESELE,
J
:
[1] The plaintiffs instituted claims
against the defendant for general damages arising from the (i)
unlawful and malicious arrest
and detention of the first plaintiff;
(ii) unlawful and unconstitutional detention of the second and third
plaintiffs and (iii)
violation of the constitutional rights to
parental care of the fourth to sixth plaintiffs. The total
amount claimed is R1 950 000,00.
[2] The first plaintiff is the mother
of the second to sixth plaintiffs. She is acting both in her capacity
and on behalf of the
second to sixth plaintiffs. The second and
third plaintiffs are twins. They were one year and six months
old on 14
August 2014 when the first plaintiff was arrested and
detained. The fourth and fifth plaintiffs were twelve years and
seven
years old, respectively, on the said date and the sixth
plaintiff was six years old.
[3] It is common cause that on 14
August 2014, at about 20:00, and at Kliptown, Johannesburg, the first
plaintiff and her husband
were arrested for theft by the police,
without a warrant. The second and third plaintiffs, due to
their ages, were taken
together with their mother to prison.
According to the first plaintiff, the fourth to sixth plaintiffs were
left home alone
following her detention and the detention of her
husband. The first plaintiff was released from detention on 15
August 2014
at the Kliptown Magistrate’s Court cells at about
12:30.
[4] At the commencement of the trial
counsel for the defendant conceded that the arrest and detention of
the first plaintiff were
unlawful. It was denied, however, that
the arrest and detention were without probable cause or malicious.
[5] The case for the second and third
plaintiffs is that their detention with their mother was unlawful and
unconstitutional as
it violated their rights:
(i)
not to be detained, except
as a measure of last resort, and if detained, only for the shortest
appropriate period of time;
(ii)
to be treated in a manner
and kept in conditions that take into account the child’s age;
(iii)
to be kept separately from
adults;
(iv)
to be protected from
maltreatment, abuse or degradation.
[6] The case for the fourth to sixth
plaintiffs is that the actions of the police in arresting their
parents violated their constitutional
rights to:
(i)
parental, family or
appropriate alternative care;
(ii)
be protected from
maltreatment, neglect, abuse or degradation; and
(iii)
not to be subjected to
practices that could endanger their well-being, physical or mental
health.
[7] Three witnesses, including the
first and fourth plaintiffs, testified in the plaintiffs’ case
and three witnesses testified
on behalf of the defendant.
[8] L A is the fourth plaintiff.
She is the daughter of the first plaintiff. She is currently 14 years
old. She was twelve
years old in 2014. In the same year she was
staying together with her parents, namely; first plaintiff and her
husband.
[9] Her evidence is that on 14 August
2014 she found her father home when she came back from school.
It was around 15:00.
She expected the first plaintiff back home
from work at 18:00. The first plaintiff was supposed to bring
them food but never
showed up. At around 19:00 she had a knock at the
door whilst she was watching a television with her siblings in the
dining room.
After her father had opened the door she heard the
police accuse him of stealing a shack. Thereafter the police
left the
house with him. She remained behind with four
siblings. Since they were alone in the house after the arrest
of her
father she locked the doors for their safety. Later that
night two men unknown to her arrived at the house to fetch the
twins.
She was not told where the twins were taken to.
After the departure of the men with the twins she sat with her
siblings in
one room. The children were crying due to hunger.
They never slept that night. She was frightened. None of
them
went to school the following day. On the same day, at
14:00, her grandmother and aunt visited them. After they had
realised that she and her siblings were left alone they took them to
their aunt’s residence to get food. Later on her
siblings
were taken back home and she remained behind. She disputed the
version of the police that the first plaintiff was
arrested at home
and took the twins with her when the police left the house with her.
[10] Mrs T A, the mother of the first
plaintiff, was on her way home from work when she received a message
regarding the arrest
of the first plaintiff. It was in the morning.
When she reached home she phoned her other daughter, B, to fetch her
and take
her to the residence of the first plaintiff to see what was
happening there. B arrived at 12:50. Thereafter both of them
drove to Klipspruit. On arrival at 14:00 they found the
children of the first plaintiff crying. When asked about the
whereabouts
of the twins, L informed them that men unknown to her
came and took them. The children were complaining of hunger.
Since there were no adults present she and B decided to take the
children to the residence of B. On arrival at the said
residence
they prepared food for the children. They took the
children back home late that afternoon after they had received
information
that the first plaintiff was home. She did not
spent much time with the first plaintiff or ask her anything because
she was
rushing to work.
[11] The first plaintiff testified
that in the year 2014 she was staying in Klipspruit with her husband
and five children, including
twins. Her father died in 2009,
followed by her husband who died after 2014. In 2014 she was
employed as a casual worker
by an organisation known as Maphelo
Skills Development. Her working hours stretched from 11:00 to
18:00.
[12] On 14 August 2014 she left home
to work at about 10:00. When she knocked off at 18:00 she went to the
shop to buy bread and
chips for the family because she had already
told her husband not to cook for supper. She received her
salary on that day
in an amount of R400,00. After buying food
she walked home. Whilst on her way home she was stopped by a
police vehicle.
Two police officers came out and informed her
that they were arresting her for theft. The police did not
identify themselves.
After she was informed about the purpose
of the arrest she was handcuffed and put inside the police vehicle
wherein she found her
husband and a man who it was said was a
complainant. The police ignored her plea to take her home to
breastfeed her twins.
[13] When they arrived at the Kliptown
police station she explained to the police that she did not steal a
shack as alleged and
that it was bought by her husband. She was
locked in the holding cell at about 21:00. Whilst in the cells
she requested to
see the station commander to inform him or her about
her twins who were left home without food. She wanted to
breastfeed
them. After she had made a request the twins were
fetched from home to enable her to breastfeed them. The twins did not
have
extra clothes or napkins when they were brought to her in the
cell. She sat on the bench holding the twins on her arms the
whole night since she was not provided with the bed for the twins to
sleep on. The twins were restless and cried the whole
night.
She confirmed that she was released from detention on 15 August 2014.
[14] Mr Ngwenya testified that on 14
August 2014, at about 20:00, he arrested the first plaintiff and her
husband at their residence
for theft after they were identified by
the complainant who was in his company. Present also, during
the arrest, was the
police “
informer
”.
Besides the first plaintiff and her husband in the house, there was
an adult female who introduced herself as R A
as well as the first
plaintiff’s father. After he had informed the suspects of the
reasons for arrest he handcuffed the first
plaintiff’s husband
and put both of them in the police vehicle. Due to the first
plaintiff’s insistence to take
the twins with her he asked the
informer to help the first plaintiff carry the twins.
Thereafter he drove the suspects and
the twins to the police station.
He did not see other children in the house on that day. He
testified that in the event that
there were children present, they
were under the care of R Afrika and the father of the first
plaintiff. On arrival at the
police station he left the
suspects and the twins under the care of two police officers in the
guardroom. He testified under cross-examination
that he arrested the
first plaintiff and her husband after he had read the statement made
by the complainant.
[15] Mr Gerald Feldman is a member of
the Crime Prevention Forum (“
CPF
”). He was
still a member of this forum in 2014. Members of this forum
assist the police with curbing crime in
the various communities.
[16] On 14 August 2014, in the
afternoon, he accompanied police officer Ngwenya to the residence of
the complainant in Klipspruit.
The complainant had opened a
case of theft of his shack. On arrival at the complainant’s
residence the complainant took them
to the residence of the first
plaintiff and identified the first plaintiff and her husband as
suspects. The first plaintiff’s
aunt and father by the
name of “
Z
” were present and the father greeted
him. He was sick in bed. He testified that when the first
plaintiff and her husband
were placed under arrest the first
plaintiff insisted on taking her twins with her to the police station
despite a plea by her
aunt, R, to leave the children with her. He
disputed the version of the first plaintiff that she was arrested in
the street. He
did not see other children in the house. He testified
that he knows the first plaintiff’s father and the whole family
well.
He did not dispute L’s version which was that she
and her two siblings were present in the house when her father was
arrested.
[17] Mrs Sylvia Bham is a police
captain in the South African Police Services. She is stationed
at Diepkloof police station.
In 2014 she was stationed at
Kliptown police station. On 14 August of the same year, and at
23:00 she visited the cells.
In the cells she found five women and a
child. She never saw the twins in any of the cells.
However, she agreed that
the cell register which she signed that
night had the names of the first plaintiff’s twins. Since it is
common cause from
the evidence of the arresting officers and the
plaintiff that the latter and her twins were at the police station
together on the
night of 14 August 2014, although they differ on how
the plaintiffs got there, it is beyond dispute that the first
plaintiff was
locked in the cell with her twins. Mrs Bham
testified that prison regulations prohibit detention of minor
children in the
cells.
[18] In closing arguments counsel for
the plaintiffs argued that the plaintiffs have made out their case as
stated in the particulars
of claim. He argued that even though the
defendant admitted that the arrest and detention of the first
plaintiff was unlawful,
the arrest was without probable cause in that
the arresting officer went to arrest the first plaintiff despite the
fact that the
complainant mentioned in his statement which the
arresting officer had read, that his shack, which it was alleged was
stolen by
the first plaintiff and her husband, was found by the
complainant on someone else’s property.
[19] According to the plaintiffs’
counsel the arresting officer should have proceeded to house […]
J road, Klipspruit
West, where the shack was erected and made
enquiries instead of arresting the first plaintiff who was not in
possession of the
said shack and had denied stealing the shack.
I agree and conclude that in addition to the unlawful arrest and
detention
of the first plaintiff the arrest and detention were
malicious. This brings me to the issue of the rights of the second
the sixth
plaintiffs, alleged to have been violated by the actions of
the police.
[20]
Section 28(1) of the Constitution
[1]
provides that every child has the right –
(i)
to family care or parental
care, or to appropriate alternative care when removed from the family
environment;
(ii)
to be protected from
maltreatment, neglect, abuse or degradation;
(iii)
not to be detained except
as a measure of last resort, in which case, in addition to the rights
a child enjoys under sections 12
and 35, the child may have be
detained only for the shortest appropriate period of time, and has a
right to be kept separately
from detained persons over the age of 18
years and treated in a manner, and kept in conditions that take
account of the child’s
age. Subsection (2) provides that a
child’s best interests are of paramount importance in every
matter concerning the child.
[21]
Detention of a child as a measure of last resort was emphasised in
Raduvha
v Minister of Safety and Security and Another
[2]
wherein the Constitutional Court upheld the appeal declaring the
arrest and detention of the child who was an applicant, unlawful,
in
that they were in violation of her constitutional rights in section
28(1)(g) and section 28(2) of the Constitution.
[22]
Counsel for the defendant argued that although the detention of the
first plaintiff was unlawful same cannot be said about
the second and
third plaintiffs because they were in custody of the first plaintiff
who insisted to be with them so that she could
be able to breastfeed
them. Counsel acknowledges the fact that the first plaintiff has the
right not to be detained unlawfully
and her unlawful detention
violated her rights, including rights to dignity and freedom, and is
accordingly entitled to claim damages.
Counsel argue, however,
that the second and third plaintiffs, whose rights to dignity were
equally violated due to the conduct
of the police in unlawfully
arresting their mother, are not entitled to damages. This argument is
misplaced. Where the detention
of the mother or guardian of the child
is in violation of her constitutional rights and unlawful it follows
that the rights
[3]
of the minor children who are detained with her or are in her custody
are equally violated and their detention is unlawful.
Therefore
they are entitled to claim damages that may be proved. Even if the
detention of the mother or guardian may be lawful,
the detention of
the minor children with her shall be unconstitutional, if is in
violation of certain provisions of section 28(1)
of the Constitution,
as in the present case where the second and third plaintiffs were
kept in the same holding cell with their
mother and other persons
over the age of 18 years, as per the cell register dated 14 August
2014.
[23] There are two mutually
destructive versions in so far as they relate to the positions of the
fourth to sixth plaintiffs after
the arrest of their parents.
On the one hand the plaintiffs testified that the fourth to sixth
plaintiffs were left alone
in the house after their father was
arrested at home and their mother in the street not far from home. On
the other hand the version
of the police officers is that both the
suspects were arrested at home and there were other elderly people
present during the arrest.
[24]
The correct approach to be adopted when dealing with mutually
destructive versions was briefly set out in
National
Employers General Insurance Co Ltd v Jagers
[4]
wherein the following was said:
‘…
Where the onus
rests on the plaintiff as in the present case, and where there are
two mutually destructive stories, he can only
succeed if he satisfies
the court on a preponderance of probabilities that his version is
true and accurate and therefore acceptable,
and that the other
version advanced by the defendant is therefore false or mistaken and
falls to be rejected. In deciding
whether that evidence is true
or not the court will weigh up and test the plaintiff’s
allegations against the general probabilities.
The estimate of
the credibility of a witness will therefore be inextricably bound up
with the consideration of the probabilities
of the case and, if the
balance of probabilities favours the plaintiff, then the court will
accept his version as being probably
true. If however the
probabilities are evenly balanced in the sense that they do not
favour the plaintiff’s case any more
than they do the
defendant, the plaintiff can only succeed if the court nevertheless
believes him and is satisfied that his evidence
is true and that the
defendant’s version is false.
’
[25]
This approach was approved in
Stellenbosch
Farmers Winery Group Ltd and Another v Martell Et Cie and Others
[5]
wherein the following was said:
‘
The technique generally
employed by courts in resolving factual disputes of this nature may
be conveniently summarised as follows:
To come to a conclusion
on the disputed issues the court must make findings on (a) the
credibility of the various factual witnesses;
(b) their reliability;
and (c) the probabilities … As to (c) this necessitates an
analysis and evaluation of the probability
or improbabilities of each
party’s version on each of the disputed issues …
’
[26] When one consider and analyse the
evidence of the plaintiffs and their witness, entirely, in so far as
it relates to the arrest
of the first plaintiff and the positions of
the fourth and sixth plaintiffs after the arrest of their parents
(first plaintiff
and her husband) it becomes apparent that the
evidence was carefully planned to create a believable story that the
events took
place as told by the witnesses. The witnesses sought to
achieve, without success, corroboration in their evidence in order to
demonstrate
that their evidence is true and accurate and therefore
acceptable, and that the evidence advanced by the police is therefore
false
or mistaken and false to be rejected. What follows below
demonstrates this point.
[27] According to L Afrika the first
plaintiff was not arrested at home and the second and third
plaintiffs were taken away from
home by men unknown to her after her
father was arrested. She and her two siblings spent the whole night
without parental care
and food. Her version with regard to the
arrest of the first plaintiff and removal of the second and third
plaintiffs from
home is corroborated by the first plaintiff who
testified that she was arrested in the street and taken to the police
station.
After she was locked up in the holding cell she
requested that the police fetch the second and third plaintiffs from
home in order
for her to breastfeed them. Sadly, though, the evidence
of these witnesses is contradicted by the unquestionable documentary
evidence
in the form of a cell register which was presented by the
plaintiffs’ own counsel to the police officer Bham during
cross-examination.
The register clearly shows that the first, second
and third plaintiffs and their father were all admitted into the
police holding
cell at 20:45, which corroborates the evidence of the
police that the first plaintiff was arrested at home and taken to the
police
station together with the second and third plaintiffs.
That documentary evidence remained unchallenged. In fact the
plaintiffs’
counsel relied on it to show that the second and
third plaintiffs were locked in the same cell with the first
plaintiff and not
as testified by Mrs Bham, that there were no baby
twins in the cells. Therefore, the evidence of the first
plaintiff and
her daughter L, is unreliable. Moreover, it is
improbable that the police would handcuff, from the back, a
defenceless woman
in public as alleged by the first plaintiff, on a
mere suspicion of theft of a shack. In view of the
unreliability of the
evidence of these witnesses I am unable to
accept the evidence of the first plaintiff that her father died
before 2014 and could
not have been around on 14 August 2014.
In the same breathe, I reject the evidence of L that she and her
siblings were left
home alone after her parents were arrested.
[28] The evidence of Mrs T A is not
persuasive and creates doubt as to whether she ever visited the house
of the first plaintiff
in the morning of 15 August 2014. The
reasons are as follows: She testified that after she had heard
the news about
the arrest of the first plaintiff she rushed to the
latter’s house because she was worried about the children.
On arrival
she was informed about the missing baby twins.
Interestingly, she never took any steps to look for them.
Surely, any
reasonable person in the position of Mrs Afrika would
have reported the incident to the police. After she had offered other
children
food, according to her, she went back to the first
plaintiff’s house and found the plaintiff home with the
babies.
Again, she never enquired from the first plaintiff
about the reason for her arrest and how it came about and whether she
had got
hold of the babies who were reported to her to be missing.
Therefore, I am unable to accept her evidence as reliable, that
she
visited the house of the first plaintiff on 15 August 2014.
[29] On the other hand the police, in
particular Mr Feldman, were impressive witnesses. As stated
earlier, their evidence
that the first plaintiff was arrested at her
house and took the baby twins with her to the police station is
corroborated by the
prison cell register which shows that the three
of them were admitted into the holding cell at the same time.
For this reason,
I find no reason not to accept their evidence, that
although they did not see other children in the house save the baby
twins,
there were two elderly persons present in the house when the
first plaintiff was arrested. The said persons are known to Mr
Feldman
as the first plaintiff’s aunt called R and her father
“
Z
”. Therefore, the first plaintiff has
failed to establish that the police violated the rights of the fourth
to sixth
plaintiffs when arresting the first plaintiff and her
husband.
[30]
I now turn to the issue of damages for unlawful and malicious arrest
and detention of the first plaintiff and unlawful detention
of the
second and third plaintiffs, bearing in mind the primary purpose of
damages as stated in
Minister
of Safety and Security v Tyulu
[6]
as follows:
‘
In the assessment of damages
for unlawful arrest and detention, it is important to bear in mind
that the primary purpose is not
to enrich the aggrieved party but to
offer him or her some much-needed solatium for his or her injured
feelings. It is therefore
crucial that serious attempts be made
to ensure that damages awarded are commensurate with the injury
inflicted. However,
our courts should be astute to ensure that
the awards they make for such infractions reflect the importance of
the right to personal
liberty and the seriousness with which any
arbitrary deprivation of personal liberty is viewed in our law …
’
The court gave a warning that although
it is always helpful to have regard to awards made in previous cases
to serve as a guide,
such an approach if slavishly followed can prove
to be treacherous. The suggested correct approach is to have regard
to all the
facts of the particular case and to determine the quantum
of damages on such facts.
[31] The prisons or correctional
centres are not homes. Even though our Constitution guarantees
the rights of those in custody,
nothing can substitute home even if
the family life is worse than prison. Therefore, it stands to reason
that whoever is detained
unlawfully suffers unexplainable pain and
psychological torture.
[32] The first plaintiff was locked in
the holding cell for the whole night with her baby twins who had no
extra clothes and napkins
and were crying throughout the night. She
was holding them in her arms and watched them cry but could not do
anything because prison
was not their home or her house where she
could whisper into their ears in the usual manner which they are used
to and plead with
them to calm down and sleep. The children
were restless. At times they stopped crying due to tiredness since
they were not
provided with a bed to sleep on. Their mother
explained:
‘
they missed food they
usually enjoyed at home and I noticed faeces in their napkins but I
had no extra napkins. In the morning during
breakfast I shared a
slice of bread with them.’
That experience undoubtedly brought
pain, emotions,
contumelia
and psychological torture to her.
The concession made by the defendant that her arrest and detention
were unlawful clearly demonstrates
that the arresting officer had no
respect for human dignity. The arrest and detention was
malicious. On the other hand
the baby twins were subjected to
maltreatment, degradation and pain. The actions of the police are
condemned.
[33] Having considered a concession
made by the defendant with regard to the unlawful arrest and
detention of the first plaintiff
and a finding that they were also
malicious, as well as the trauma and pain suffered by the first
plaintiff, not only as a result
of her unlawful and malicious
detention for sixteen hours but also the pain of seeing her babies
cry the whole night wearing wet
napkins full of faeces, I am of the
view that an award in an amount of R250 000,00 for her and
R100 000,00 in respect
of each baby is appropriate.
[34] In the result the following order
is made:
34.1 The defendant shall pay damages
to the plaintiffs as follows:
34.1.1 R250 000,00 to the first
plaintiff
34.1.2 R100 000,00 to the second
plaintiff
34.1.3 R100 000,00 to the third
plaintiff
34.2 The first plaintiff shall within
three months of payment of the capital amount due to the minor
plaintiffs in terms of this
order do all things necessary to achieve
the establishment of a trust (the trust) and the opening of a bank
account of the trust
by the trustees, and the plaintiffs’
attorneys shall do all things necessary to assist in achieving this
establishment of
the trust.
34.3 Payment by the defendant shall be
made only into a trust of the plaintiffs’ attorneys, to be
invested and held by them
in a separate interest-bearing account in
terms of Section 78(2A) of the Attorney Act 53 of 1979, pending the
establishment of
the trust and the opening by the trustees of a bank
account.
34.4 On the establishment of the trust
and the opening of a bank account of the trust the plaintiffs’
attorneys shall pay
the full amount invested in such account as
aforesaid, including the accrued interest, into the trust’s
said bank account.
34.5 The number of the trustees for
the purposes of transacting the business of the trust (save the
appointment of the trustees)
shall be two (2), and such number for
such purpose shall not be exceeded or reduced.
34.6 The trustees shall be:
34.6.1 E A (the first plaintiff) and
34.6.2 Standard Bank of South Africa
34.7 The terms and provisions of the
trust deed shall not be amended, save with the leave of the court.
34.8 The trustees shall provide
security to the satisfaction of the master in terms of Section
9(2)(a) of the Trust Property Control
Act of 1988.
34.9 The minor plaintiffs are exempted
from furnishing security.
34.10 The trust beneficiaries shall
be:
N K (I.D …)
A K (I.D …)
34.11 The defendant shall pay costs.
________________________________________
M M MABESELE
JUDGE OF THE HIGH COURT
GAUTENG LOCAL DIVISION,
JOHANNESBURG
Heard on: 04 December 2018
Judgment delivered on: 12 February
2019
APPEARANCES:
On behalf of the plaintiffs: Adv F F
Opperman
Instructed by: Madelaine Gowrie
Attorneys, Johannesburg
On behalf of the defendant : Adv M J
Maluleke
Instructed by: State Attorney
Johannesburg
[1]
108
of 1996. See also the provisions of sections 6 and 7 of the
Children’s Act,38 of 2005.
[2]
[2016]
ZACC 24.
[3]
e.g.
right to dignity
[4]
1984
(4) SA 437
(E) at 440E-G
[5]
2003
91) SA 11
(SCA) at 14I-15C
[6]
2009
(5) SA 85
(SCA) at para [26]; see also
Minister
of Safety and Security v Seymour
2006 (6) SA 320
(SCA) at par [17]