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[2014] ZASCA 108
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W v Minister of Police (92/2012) [2014] ZASCA 108; [2015] 1 All SA 68 (SCA); 2015 (1) SACR 409 (SCA) (11 September 2014)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
REPORTABLE
Case No: 92/2012
In
the matter between:
V[...]
J[...]
W[...]
.................................................................................................................
APPELLANT
and
THE
MINISTER OF
POLICE
......................................................................................
RESPONDENT
Neutral
citation
:
W[...]
v The Minister of Police
(92/2012)
[2014] ZASCA 108
(20 August 2014)
Coram
:
Maya, Tshiqi, Saldulker, Swain JJA and Gorven AJA
Heard
:
20 August 2014
Delivered:
11 September
2014
Summary
:
Investigating officer negligently
misrepresenting strength of State case against appellant at bail
hearing – bail refused
– subsequent detention of
appellant in breach of right to freedom in terms of s 12(1)(
a
)
of Constitution, unlawful and without just cause – breach by
investigating officer of public law duty not to violate appellant’s
right to freedom – breach of appellant’s private law
right not to be unlawfully detained – order of magistrate
not
rendering detention lawful – respondent liable to compensate
appellant.
Order
On
appeal from:
Eastern Cape High Court, Port Elizabeth (Dambuza J
sitting as court of first instance):
1
The appeal is upheld with costs such costs to include the costs of
two counsel.
2
The order of the court a quo is set aside and replaced with the
following order:
‘
2.1
Judgment is granted in favour of the plaintiff for payment of the sum
of R500 000 as against the defendant in respect of
plaintiff’s
unlawful detention for the period 12 December 2007 to 13 January
2009.
2.2
The defendant is ordered to pay interest on the sum of R500 000
at the rate of 15.5 per cent per annum
a tempore morae
from
date of demand to date of payment.
2.3
The defendant is ordered to pay the plaintiff’s costs of suit
together with interest thereon at the rate of 9 per cent
per annum
a
tempore morae
from 14 days after
taxation of the plaintiff’s costs to date of payment.’
JUDGMENT
Swain
ja
(
Maya,
Tshiqi, Saldulker JJA and Gorven AJA
concurring):
[1]
The Njoli Square Branch of Nedbank in Port
Elizabeth was the scene of an armed robbery on 14 June 2007. Video
footage of the robbery
led to the arrest of four individuals,
including the appellant, Mr V[...] W[...].
[2]
Mr W[...] was arrested by Inspector Kuhn, a member
of the South African Police Services (SAPS) on 20 November 2007. On
the following
day the appellant appeared before the Magistrate’s
Court at Port Elizabeth. The case was adjourned to 6 December 2007
and
then to 11 December 2007 to enable the appellant to obtain legal
representation and apply for bail.
[3]
On
11 and 12 December 2007 all four accused applied for bail, which was
opposed by the State. As the charge was one of armed robbery,
being a
Schedule 6 offence in terms of s 60(11)(
a
)
of the Criminal Procedure Act 51 of 1977 (the Act), the accused bore
the onus of establishing on a balance of probabilities that
exceptional circumstances existed, which in the interests of justice
permitted their release.
[1]
Proof by an accused that he or she will probably be acquitted can
serve as ‘exceptional circumstances’.
[2]
The strength of the State case is accordingly relevant to the
existence of ‘exceptional circumstances’.
[3]
[4]
The record of the bail proceedings illustrates
that the only evidence linking the four accused to the bank robbery,
was the video
footage. Inspector Kuhn was the only individual at the
bail hearing who had viewed the video footage. He gave evidence on
its clarity
in identifying the accused as the bank robbers. Relying
upon Inspector Kuhn’s evidence the magistrate refused bail,
finding
that there was a prima facie case against the accused and
there were no exceptional circumstances to justify their release.
[5]
Mr W[...] was thereafter detained in custody until
13 January 2009 when he was arraigned in the Regional Court on a
charge of armed
robbery together with his co-accused. The charge
against Mr W[...] was, however, withdrawn after the prosecutor had
viewed the
video footage and decided that he could not be identified
as one of the bank robbers.
[6]
In the result Mr W[...] instituted action in the
Eastern Cape High Court (Port Elizabeth) against the respondent, the
Minister of
Safety and Security (the minister) alleging that his
arrest and detention were unlawful and malicious and his prosecution
malicious.
His action was, however, dismissed by the court a quo
(Dambuza J). An application for leave to appeal was only partially
successful.
Leave was granted by the court a quo to the full bench of
the Eastern Cape Division against the dismissal of his claim for
unlawful
arrest and unlawful detention, but only for one day being
the period from 20 November 2007 until 21 November 2007. This court
subsequently
granted leave to Mr W[...] to appeal against the
dismissal of all of the claims advanced.
Unlawful
arrest
[7]
Inspector Kuhn arrested Mr W[...] in terms of s
40(1)(
b
)
of the Act. The only issue was whether Inspector Kuhn entertained a
reasonable suspicion that Mr W[...] had committed the Schedule
1
offence of robbery.
[8]
Whether Inspector Kuhn entertained a reasonable
suspicion is objectively justiciable. The test ‘is not whether
a policeman
believes that he has reason to suspect, but whether, on
an objective approach, he in fact has reasonable grounds for his
suspicion’.
See
Duncan v Minister
of Law and Order
1986 (2) SA 805
(A) at
814D-E. The information available to Inspector Kuhn at the time he
arrested Mr W[...] must be examined objectively, to decide
whether
the suspicion he harboured as to Mr W[...]’s involvement in the
robbery was reasonable.
[9]
As pointed out, the only direct evidence available
to Inspector Kuhn as to the identity of the robbers was the video
footage. When
Inspector Kuhn viewed the video he stated he was
immediately able to identity two of the robbers, as he had previously
had cases
against them. The face of the third robber was familiar to
him, but he was unable at the time, to connect a name to the
individual.
The fourth robber, whom he subsequently suspected was Mr
W[...], was unknown to him.
[10]
There was, however, other information available to
Inspector Kuhn which he says led to his suspicion that Mr W[...] was
the fourth
robber. After the arrest of Mr W[...]’s co-accused,
one of them, Mr Zalaba, told Inspector Kuhn that the name of the
fourth
robber was ‘Vig’ which is a commonly used nickname
for Xhosa males with the name V[...]. The co-accused also said that
this individual stayed in New Brighton and had gold in his teeth, or
a gold tooth. Although this evidence would be inadmissible
against Mr
W[...], it can be considered in determining whether Inspector Kuhn’s
suspicion was reasonable. See
Powell NO
and others v Van der Merwe NO and others
2005
(5) SA 62
(SCA) para 37.
[11]
Immediately before Mr W[...] was arrested by
Inspector Kuhn he was found in the company of Mr Gadi and Mr Rubusana
by Inspector
Bezuidenhout who detained all of them for questioning.
He gave evidence that he was busy with crime prevention patrols when
he
was contacted by radio control, that a security guard at a
supermarket had spotted a suspicious looking vehicle. He travelled to
the area where the security guard pointed out to him a BMW motor
vehicle parked on the side walk without any occupants. The guard
explained that he was suspicious of the occupants, because they would
leave the vehicle but return to it, eventually walking down
the road.
The guard was concerned, because the Fidelity Guards van arrived
daily at that time to collect large amounts of money
from the
supermarket. The guard gave them a brief description of the three
occupants of the vehicle. They then travelled down the
road in search
of the occupants whose whereabouts at a café were then pointed
out to them by another guard at the rear of
the supermarket. The
three individuals were standing on the pavement outside the café
eating food. They questioned them
and established their identities as
Mr Gadi, Mr Rubusana and Mr W[...].
[12]
Mr Gadi in the presence of Mr W[...] and Mr
Rubusana stated that they had travelled by taxi from New Brighton and
were on their
way to Korsten. He found in Mr Gadi’s possession
a bunch of keys amongst which was a BMW key. He asked Mr Gadi where
the
vehicle was to which the keys belonged, to which he replied that
it was in New Brighton at his house. This reply immediately aroused
his suspicion, because he knew the BMW was parked down the road.
Having previously established that the vehicle was not stolen,
he
suspected that the BMW vehicle was what he referred to as a ‘safe
vehicle’. He explained that there had been a lot
of armed
robberies in the area. In 80 per cent of these robberies the vehicle
used in the robbery was found abandoned within a
kilometre of the
scene. Another vehicle which was not being sought by the police a
‘safe vehicle’, was then used to
make good the escape of
the robbers as it did not attract any attention from the police.
[13]
Inspector Bezuidenhout accordingly decided to
investigate. All three individuals were loaded into the police van
and driven to where
the BMW was parked. He then took the BMW keys
from Mr Gadi and unlocked the door of the BMW. When he asked Mr Gadi
why he had said
the vehicle was in New Brighton, Mr Gadi offered no
explanation. It indicated to him that for some reason all three of
them wished
to hide the fact that the vehicle was standing nearby.
They then asked Mr Gadi to drive the BMW to the Algoa Park Police
Station
where he contacted the Organised Crime Unit to assist them to
ascertain whether any of these individuals were suspects in any
on-going
investigations. As a result, several members of the unit
arrived including Inspector Kuhn. He told Inspector Kuhn how he had
found
the three individuals, what led him to become suspicious and
why they had brought them to the police station. These detectives
knew both Mr Gadi and Mr Rubusana. Mr Gadi told the detectives that
he was out on bail for a robbery in Kimberley. What he noticed
immediately about Mr W[...]’s appearance was a piece of gold in
one of his teeth protruding from his lip.
[14]
Inspector Kuhn gave evidence that when he was
called to the Algoa Police Station, he and some of the other
detectives from the Organised
Crime Unit had viewed the video footage
several times. He knew both Mr Gadi and Mr Rubusana who had been
arrested for robbery cases
by members of his unit. However, because
there were no warrants of arrest outstanding against either of them,
they were released.
[15]
When Mr W[...] got out of the police van, he told
Inspector Kuhn that he was V[...] W[...] of New Brighton. As Mr
W[...] climbed
out of the police van, Inspector Kuhn immediately
noticed a ‘gold piece in his tooth’ and he believed he
had found
the outstanding suspect who fitted the description given to
him by Mr Zalaba. He then arrested Mr W[...].
[16]
Inspector Kuhn stated he believed the video
footage was very clear and when considered together with the
description of the suspect,
was sufficient to identify Mr W[...] as
the fourth suspect. Inspector Kuhn also stated that he believed the
general appearance
of Mr W[...] matched that of the individual in the
video, in that he was stoutly or stockily built and had a ‘roundish’
face. The circumstances under which Mr W[...] was found in the
company of Mr Gadi and Mr Rubusana he said also played a role in
his
belief that Mr W[...] was the fourth suspect. When he returned to his
office he again looked at the video footage and was satisfied
Mr
W[...] was the wanted suspect.
[17]
When the video footage is viewed, it is quite
clear that the facial features of the fourth robber are not clearly
seen. On the occasions
when this individual looks directly at the
camera, his face is partially covered by what appears to be a
stocking. He is also wearing
a hat and when seen in profile it is
extremely difficult to clearly see his facial features. Indeed, when
giving evidence Inspector
Kuhn conceded that Mr W[...] was not the
individual seen in the video. However, the video footage must not be
considered in isolation.
The additional information available to
Inspector Kuhn at the time he arrested Mr W[...] must also be
objectively considered to
decide whether the suspicion he harboured
as to Mr W[...]’s involvement in the robbery was reasonable. As
stated by Lord
Devlin in
Shabaan Bin
Hussein and others v Chong Fook Kam and another
[1969]
3 All ER 1627
(PC) at 1630:
‘
Suspicion
in its ordinary meaning is a state of conjecture or surmise where
proof is lacking; “I suspect but I cannot prove”.
Suspicion arises at or near the starting point of an investigation of
which the obtaining of prima facie proof is the end.’
[4]
[18]
The very distinctive attributes of the remaining
suspect, namely that his name was Vig, that he came from New Brighton
and had a
gold tooth as described by one of the co-accused, were all
attributes of Mr W[...]. These features, coupled with the extremely
suspicious circumstances under which he was discovered, together with
the broadly similar bodily appearance to the fourth suspect
in the
video possessed by Mr W[...], cumulatively results in Inspector
Kuhn’s suspicion being adjudged as objectively reasonable.
The
minister accordingly discharged the onus of justifying the arrest of
Mr W[...]. See
Minister of Law and Order
v Hurley and another
1986 (3) SA 568
(A) at 589 E-F.
Unlawful
detention
[19]
The basis for Mr W[...]’s claim was that the
magistrate in refusing to grant bail acted upon the information
supplied by Inspector
Kuhn. It was alleged that Inspector Kuhn owed a
duty to Mr W[...] to properly investigate the crime and bring to the
attention
of the prosecutor and the magistrate at the bail hearing,
information which was relevant to the exercise by the magistrate of
his
discretion. It was alleged that Inspector Kuhn had failed to
discharge this duty which resulted in the magistrate ordering the
continued detention of Mr W[...]. His detention was accordingly
unlawful. The minister, whilst conceding that this duty rested upon
Inspector Kuhn, denied its breach. The minister alleged that
Inspector Kuhn had made it clear to the magistrate what the nature
and strength of the prosecution’s case against Mr W[...] was
and that he could identify Mr W[...] in the video footage.
[20]
This claim was dismissed by the court a quo
relying upon the decision in
Isaacs v
Minister van Wet en Orde
1996 (1) SACR
314
(A) on the basis that after his first appearance in court, the
decision that he should remain in custody pending the trial was never
Inspector Kuhn’s. It was the decision of the magistrate which
rendered Mr W[...]’s continued detention lawful. Counsel
for
the minister submitted that this finding of the court a quo, based as
it was upon the authority of
Isaacs,
was unassailable.
[21]
The central issue this court had to deal with in
Isaacs
was
whether as a consequence of the unlawful arrest of the plaintiff, the
provisions of s 50(1) of the Act were inapplicable. It
was held that
the purpose of the section was twofold; to ensure that an arrested
person appeared before court as soon as possible
after the arrest and
to allow the court to order the further detention of the arrested
person for the purposes of trial (at 321I-322C).
The challenge was
directed at the jurisdiction of the magistrate to order the further
detention of the accused. Reference was made
to
Abrahams
v Minister of Justice and others
1963
(4) SA 542
(C) at 545G-H where the following dictum appears ‘.
. . once there is a lawful detention, the circumstances of the arrest
and capture are irrelevant’. This court in
Isaacs
concluded that by the phrase ‘lawful
detention’ was meant detention as a result of a magistrate’s
order, regardless
of whether the arrest was lawful or not. The
magistrate had jurisdiction to order the further detention of the
plaintiff. The provisions
of s 50(1) of the Act were accordingly
applicable and the detention was lawful. See also
Grootboom
en andere v Minister van Justisie en andere
[1997]
3 All SA 51
(SE).
[22]
In
Minister of
Justice and Constitutional Development and another v Zealand
2007 (2) SACR 401
(SCA) para 17, the majority of
this court in reliance upon the decisions in
Abrahams
and
Isaacs
concluded that ‘a decision by a court to
remand an accused person in custody results in lawful detention of
that person. Such
a decision needs to be set aside before lawful
detention in terms thereof ceases’. In
Zealand
the complaint of the plaintiff was that due to the
negligence of the registrar of the high court, his successful appeal
to the full
court against his conviction and sentence for murder was
not brought to the attention of the prison authorities. As a result,
he
continued to be detained as a sentenced prisoner. During this
period he was also detained in another case where he was charged with
rape, murder and assault. In this case the plaintiff was remanded in
custody on several occasions. The plaintiff alleged that he
had been
unlawfully detained as a sentenced prisoner, whereas he should have
been detained as an awaiting trial prisoner after
the success of his
appeal. The majority rejected this argument holding in para 19 that
‘to detain someone contrary to his
or her status does not,
however, affect the lawfulness of the detention, which arises from
the court order and not from the place
or manner of detention’.
In other words the successive remand orders issued by the
magistrate’s court had the effect
of rendering his detention
lawful albeit that his correct status as a detainee was not
recognised during this detention.
[23]
Ponnan JA writing for the minority concluded that
the validity of the remand orders was irrelevant, as the plaintiff’s
continuing
confinement as a sentenced prisoner was illegal. An action
accordingly lay against those who subjected him to this treatment.
The
action was not a claim for unlawful imprisonment, or deprivation
of all liberty, within the context of the
actio
injuriarum
.
[24]
On appeal to the Constitutional Court in
Zealand
v Minister of Justice and Constitutional Development and another
[2008] ZACC 3
;
2008 (4) SA 458
(CC) the single issue which that
court determined should be decided, was whether the appellant’s
detention between the date
of his successful appeal and the date of
his release, as a sentenced prisoner was unlawful for the purpose of
delictual damages.
The Constitutional Court held that the claim
advanced by the appellant was that his detention as a sentenced
prisoner and not merely
his detention in itself was unlawful.
[25]
The Constitutional Court disagreed with the
conclusion of the majority of this court at para 43 that the
applicant’s detention
was justified by the series of
magistrate’s court orders remanding him in custody. The
Constitutional Court disagreed with
the majority view that to detain
someone contrary to his or her status does not affect the lawfulness
of the detention, which arises
from the court order and not from the
place or manner of detention. The Constitutional Court held at para
43 that this reasoning
ignored the substantive protection afforded by
the right not to be deprived of freedom arbitrarily or without just
cause contained
in s 12(1)(
a
)
of the Constitution. This right required not only that every
encroachment on physical freedom be carried out in a procedurally
fair manner, but also that it be substantively justified by
acceptable reasons. The mere fact that a series of magistrates issued
orders remanding the appellant in detention was not sufficient to
establish that the detention was not arbitrary or without just
cause.
The Constitutional Court then concluded at para 45 that the majority
wrongly held that the magistrate’s remand orders
justified the
appellant’s deprivation of freedom. The breach of s 12(1)(
a
)
of the Constitution was sufficient in the circumstances of the case
to render the appellant’s detention unlawful for the
purposes
of a delictual claim for damages, based upon the action for unlawful
detention (para 53).
[26]
The
effect of the Constitutional Court’s decision is that the
remand orders issued by successive magistrates, did not render
lawful, the unlawful detention of the appellant as a sentenced
prisoner, when his status should have been that of an awaiting trial
prisoner.
[5]
[27]
In the present case the challenge raised to the
lawfulness of Mr W[...]’s detention is directed at the manner
in which the
magistrate’s discretion was exercised, influenced
as it was by the erroneous view of Inspector Kuhn that Mr W[...] was
the
fourth robber in the video. In
Isaacs
and
Zealand
this court was concerned solely with the legal
consequences of the detention orders issued by the respective
magistrates and not
the manner in which the magistrate’s
discretion was exercised prior to the grant of these orders. In the
context of s 12(1)(
a
)
of the Constitution and the decision by the Constitutional Court in
Zealand
,
an examination of the legality of the manner in which the
magistrate’s discretion to further detain Mr W[...] was
exercised,
cannot be precluded simply by the existence of the
magistrate’s order. The Constitutional Court in
Zealand
did not require the decisions of the respective
magistrates to be set aside, before the lawfulness of the appellant’s
detention
could be determined. Once it is clear that the detention is
not justified by acceptable reasons and is without just cause in
terms
of s 12(1)(
a
)
of the Constitution, the individual’s right not to be deprived
of his or her freedom is established. This would render the
individual’s detention unlawful for the purposes of a delictual
claim for damages.
[28]
The Constitution imposes a duty on the state and
all of its organs not to perform any act that infringes the
entrenched rights such
as the right to life, human dignity and
freedom and security of the person. This is termed a public law duty.
See
Carmichele v Minister of Safety and
Security and another (Centre of Applied Legal Studies Intervening)
[2001] ZACC 22
;
2001 (4) SA 938
(CC) para 44. On the facts of this
case Inspector Kuhn, a policeman in the employ of the state, had a
public law duty not to violate
Mr W[...]’s right to freedom,
either by not opposing his application for bail, or by placing all
relevant and readily available
facts before the magistrate. A breach
of this public law duty gives rise to a private law breach of Mr
W[...]’s right not
to be unlawfully detained which may be
compensated by an award of damages. There can be no reason to depart
from the general law
of accountability that the state is liable for
the failure to perform the duties imposed upon it by the
constitution, unless there
is a compelling reason to deviate from the
norm. Mr W[...] was entitled to have his right to freedom protected
by the state. In
consequence, Inspector Kuhn’s omission to
perform his public duty was wrongful in private law terms. See
Minister of Safety and Security and
another v Carmichele
2004 (3) SA 305
(SCA) paras 34-38 and 43.
[29]
It will be recalled that the minister admitted
that Inspector Kuhn had a legal duty to place before the magistrate
all information
relevant to the exercise by the magistrate of his
discretion, but denied that he had failed to do so. Inspector Kuhn,
however,
told the magistrate that Mr W[...] appeared on the video and
that the video material in respect of all of the accused ‘is
soos ek en u met mekaar praat, so duidelik is dit’ and ‘dit
is baie sterk, dit is goeie kwaliteit beeldmateriaal’.
When
asked by the magistrate whether he could see all four accused in the
bank on the video, he replied ‘dit is korrek, U
Edele, al vier
was in die bank’.
[30]
As pointed out above, Mr W[...] was not clearly
depicted on the video. Inspector Kuhn accordingly should not have
opposed Mr W[...]’s
application for bail, or should at least
have told the magistrate that in the case of Mr W[...], he was not
clearly depicted on
the video. Inspector Kuhn clearly failed in his
duty in this regard. Having concluded that Inspector Kuhn’s
conduct was wrongful,
it has to be determined whether his conduct was
also negligent. It is clear that a reasonable policeman in the
position of Inspector
Kuhn with only the video material to implicate
Mr W[...], would not have opposed bail, or would at the very least
advised the magistrate
that he was not clearly depicted on the video.
This Inspector Kuhn did not do. See
Carmichele
(SCA) paras 46 and 50.
[31]
From the evidence led at the bail hearing it is
also clear that a reasonable policeman in the position of Inspector
Kuhn would have
foreseen the reasonable possibility that his evidence
would lead to the refusal of Mr W[...]’s application for bail.
The
magistrate sought the assurance of Inspector Kuhn that all four
accused were visible on the video inside the bank before refusing
bail. In his judgment refusing bail, the magistrate stated that
‘there is evidence from the Investigating Officer Inspector
Kuhn that he viewed the video himself and it is clear to him that all
four of the accused are implicated in this offence’.
[32]
The detention of Mr W[...], however, resulted from
the order granted by the magistrate. In order to determine whether
the conduct
of Inspector Kuhn was a
sine
qua non
and therefore the factual cause
of Mr W[...]’s detention, it has to be determined ‘what
the relevant magistrate on the
probabilities would have done’
had the application for bail not been opposed, or Inspector Kuhn had
revealed that Mr W[...]
was not clearly depicted on the video. See
Carmichele
(SCA)
para 60. Because the video was the only evidence ostensibly linking
Mr W[...] to the crime, the magistrate more probably than
not would
have released him on bail. It is also clear that Inspector Kuhn’s
wrongful conduct was sufficiently closely connected
to the loss for
liability to follow, hence it also constituted the legal cause of
that loss. See
Carmichele
(SCA) para 71.
The court
a quo therefore erred in dismissing the appellant’s claim for
unlawful detention. The duration of his unlawful detention
was
accordingly from 12 December 2007 when bail was refused, until his
release on 13 January 2009, a period of 13 months.
Malicious
prosecution
[33]
Mr W[...] had to allege and prove that Inspector
Kuhn:
(a)
Set the law in motion (instituted or instigated the proceedings)
(b)
Acted without reasonable and probable cause
(c)
Acted with malice (
animo injuriandi
) and
(d)
The prosecution failed.
See
Minister of Justice and Constitutional Development v Moleko
[2008] 3 All SA 47
(SCA) para 8.
[34]
The minister admitted that Inspector Kuhn had set
the law in motion against Mr W[...] on a charge of armed robbery, but
alleged
that he acted lawfully and reasonably in doing so. The
minister further alleged that prosecutors employed by the National
Prosecuting
Authority correctly decided to prosecute Mr W[...] on a
charge of armed robbery. With regard to the liability of the SAPS,
the
question is whether Inspector Kuhn did anything more than one
would expect from a police officer in the circumstances, namely to
give a fair and honest statement of the relevant facts to the
prosecutor, leaving it to the latter to decide whether to prosecute
or not. See
Moleko
para
11. Whether Inspector Kuhn did so, will be determined in conjunction
with an examination of whether Mr W[...] proved the necessary
element
of malice on Inspector Kuhn’s part.
[35]
In
Moleko
para 64 this court dealt with what had to be
proved in order to establish malice:
‘
The
defendant must thus not only have been aware of what he or she was
doing in instituting or initiating the prosecution, but must
at least
have foreseen the possibility that he or she was acting wrongfully,
but nevertheless continued to act, reckless as to
the consequences of
his or her conduct (
dolus
eventualis
).
Negligence on the part of the defendant (or, I would say, even gross
negligence) will not suffice.’ [Citations left out.]
[36]
It has been found that Inspector Kuhn acted
negligently in opposing bail or at the least in failing to tell the
magistrate that
Mr W[...] was not clearly depicted on the video.
However, it is clear on the evidence that until he was presented with
the reports
of the identification experts to be called by Mr W[...]
and the minister at the hearing before the court a quo, which he
conceded
he had to accept, he believed that Mr W[...] was the fourth
robber in the video. He said he found it strange that they said it
was not Mr W[...], because he felt the individual was Mr W[...]. He
added that ‘inside me’ he still thought the individual
looked like Mr W[...].
[37]
When regard is had to all of the evidence
including the additional information that Inspector Kuhn had as to
the identity of the
fourth robber, this engendered a reasonable
suspicion in him that this person was Mr W[...]. This suspicion
clearly coloured his
perception of the video material to such a
degree that he genuinely believed it depicted Mr W[...]. In this he
acted negligently,
even grossly negligently. The consequence is that
he gave an honest but unfair statement of the facts implicating Mr
W[...], to
the prosecutor and magistrate. However, this does not
establish that he subjectively foresaw the possibility that this
individual
was not Mr W[...] and recklessly continued to assert that
he was. Mr W[...] accordingly failed to establish an essential
element
of the claim for malicious prosecution. This conclusion
applies equally to the alternative claims advanced by Mr W[...] for
malicious
arrest and detention which must accordingly fail.
Quantum
[38]
In
Minister of Safety
and Security v Seymour
2006 (6) SA 320
(SCA) para 20, this court having reviewed a number of previous awards
for unlawful detention concluded that there was no discernible
pattern other than that the courts were not extravagant in
compensating the loss. It was pointed out at para 17 that the award
of general damages with reference to awards made in previous cases
was fraught with difficulty. The facts of a particular case
needed to
be looked at as a whole and few cases were directly comparable.
[39]
In
Seymour
,
the respondent was detained for five days at a police station, during
which time he had free access to his family and medical
advisor. He
suffered no degradation beyond that which was inherent in being
arrested and detained. After the first period of 24
hours the
remainder of the detention was in a hospital bed at the Rand Clinic.
This court reduced the award of damages from R500 000
to
R90 000.
[40]
Mr W[...] described what can only be regarded as
appalling conditions he was forced to endure whilst in detention.
Cells were overcrowded,
dirty and with insufficient beds to sleep on.
He was subject to the control of a gang, whom he said sodomised other
prisoners.
As a result, he suffered the appalling, humiliating and
traumatic indignity of being raped on two occasions, which he did not
report
to the prison authorities, because he feared retaliation from
gang members. As a consequence, he has difficulty in enjoying sexual
relations with his girlfriend. He also witnessed another prisoner
being stabbed which made him fearful for his safety. After eight
months he was allocated a single cell. His situation then improved,
because he had a bed to sleep on but he was isolated and lonely.
[41]
Mr
W[...]’s description of his experiences and the conditions he
endured whilst in detention were not disputed by the minister’s
legal representative when he was cross-examined. No evidence was led
by the minister to contradict any of his allegations. Mr W[...]
was
detained for 13 months and suffered humiliating and degrading
experiences. A suitable award of damages is the sum of R500 000.
[6]
[42]
The following order is made:
1
The appeal is upheld with costs such costs to include the costs of
two counsel.
2
The order of the court a quo is set aside and replaced with the
following order:
‘
2.1
Judgment is granted in favour of the plaintiff for payment of the sum
of R500 000 as against the defendant in respect of
plaintiff’s
unlawful detention for the period 12 December 2007 to 13 January
2009.
2.2
The defendant is ordered to pay interest on the sum of R500 000
at the rate of 15.5 per cent per annum
a tempore morae
from
date of demand to date of payment.
2.3
The defendant is ordered to pay the plaintiff’s costs of suit
together with interest thereon at the rate of 9 per cent
per annum
a
tempore morae
from 14 days after
taxation of the plaintiff’s costs to date of payment.’
K G B SWAIN
JUDGE OF APPEAL
Appearances:
For
the Appellant: B J Pienaar SC (with him M F Horn)
Instructed
by:
O’Brien
Inc Attorneys, Port Elizabeth
Honey
Attorneys, Bloemfontein
For the Respondent:
C J Mouton SC (with him M Simoyi)
Instructed by:
The State Attorney,
Port Elizabeth
The State Attorney,
Bloemfontein
[1]
S
v Rudolph
2010
(1) SACR 262
(SCA) para 9.
[2]
S
v Botha en ‘n ander
2002
(1) SACR 222
(SCA) para 21.
[3]
S
v Kock
2003
(2) SACR 5
(SCA) para 15.
[4]
As
endorsed and adopted by this court in
Powell
NO and others v Van der Merwe NO and others
2005
(5) SA 62
(SCA) para 36.
[5]
In
Minister
of Safety and Security v Sekhoto
2011
(5) SA 367
(SCA) which dealt with the legality of an arrest and the
exercise of the discretion to arrest, this court in paras 42-44
stated
that once the arrestee is brought before court, the authority
to detain, which is inherent in the power to arrest is exhausted.
Further detention of the suspect is ‘then within the
discretion of the court’ and entails a ‘judicial
evaluation
to determine whether it is in the interest of justice to
grant bail’. The role of the court was to determine whether
the
suspect ought to be detained pending a trial. The appeal,
however, only concerned the lawfulness of the respondents’
arrest
and not their subsequent detention.
[6]
The
disparity between the mora rate of interest awarded in paras 2.2 and
2.3 of the order is occasioned by the variation in the
prescribed
rate of interest from 15.5 per cent per annum to 9 per cent per
annum as from 1 August 2014 (Government Gazette No
37831 dated 18
July 2014). The rate prescribed at the time when interest begins to
run (ie. 15.5 per cent in para 2.2) governs
the calculation of
interest and does not vary if the prescribed rate is adjusted in the
interim.
Davehill
(Pty) Ltd v Community Development Board
1988
(1) SA 290
(A) at 300G-302A. However, interest on a costs order,
only begins to run from the date of the taxing master’s
allocatur
(ie. 9 per cent in para 2.3).
Administrateur,
Transvaal v JD Van Niekerk en Genote Bpk
[1994] ZASCA 128
;
1995
(2) SA 241
(A).