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[2021] ZAGPJHC 79
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Radasi v Minister of Police (5729/2019) [2021] ZAGPJHC 79 (31 May 2021)
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH
AFRICA
GAUTENG DIVISION, JOHANNESBURG
REPORTABLE:
YES
OF
INTEREST TO OTHER JUDGES: YES
REVISED.
31
MAY 2021
CASE
NO: 5729/2019
PHILELE
RADASI
Plaintiff
And
THE
MINISTER OF
POLICE
Defendant
JUDGMENT
MATOJANE
J
Introduction
[1]
It is common cause that Plaintiff was
arrested without a warrant by Sgt Morotolo, a member
of the South
African Police Services (SAPS) and detained. She was taken to Court
on Monday, 17 September 2018, where she was kept
in the court cells
until she was released without appearing in Court.
[2]
Ms Radasi alleges that her arrest and detention was unlawful, and she
claims R450 000.00
from the Minister of police in damages
arising from her alleged wrongful arrest. The defendant has conceded
the arrest and detention
of the Plaintiff and has pleaded that the
arrest was lawful in terms of section 40(1)(b) of the Criminal
Procedure Act 51 of 1977
("the CPA"), which permits a peace
officer to arrest any person reasonably suspected of having committed
an offence referred
to in schedule 1 other than the offence of
escaping from lawful custody.
Plaintiff's
evidence
[3]
The Plaintiff testified that she was asleep on 27 May 2018 when she
got a call from
her boyfriend at around 10 PM. The boyfriend asked
her to come to the gate. He seemed drunk and was in a hurry as there
was a car
waiting for him. The boyfriend gave her a pair of tackies
and told her to keep them for him. She took the tackies and went back
to sleep.
[4]
On 14 September 2018, her boyfriend's sister came to her home and
informed her that
her boyfriend had sent her to collect the tackies
as the police were looking for them. She suggested to her that they
all go to
the police station. At the police station, she was informed
that her boyfriend had robbed the complainant of the tackies, and she
demanded R900.00 for the new pair.
[5]
She informed the police officials that she was not with her boyfriend
when he robbed
the complainant, and neither was she aware of the
robbery. She also told the police that she did not have the R900.00
to pay for
the tackies.
[6]
Present at this interview was the Plaintiff, the boyfriend's sister,
another lady
who accompanied the sister, Sgt Mrotolo and another male
police officer, Sgt Ngobeni. The boyfriend's sister informed the
police
that the Plaintiff must also be arrested so that her family
could also suffer. Her boyfriend's sister told the police that she
was pregnant with somebody else's child and robbed people. Plaintiff
testified that her boyfriend's family did not like her and
preferred
another woman with whom her boyfriend has a child.
[7]
She was after that placed under arrest and detained alone in a dirty,
cold cell. Later
in the evening, another prisoner was brought in. The
prisoner appeared mentally unstable as she was screaming and doing
"funny
things". She never had a bath for three days
as the shower was not working
The
evidence of the defendant
[8]
Detective Sgt Mrotolo testified that she had been a police officer
for 16 years. On
14 September 2018.
She testified
that the relatives of the Plaintiff's boyfriend, who brought her to
the police station, informed her that the Plaintiff
was involved in
an armed robbery. She alleges that the Plaintiff did not deny that
she took part in the robbery. She, however,
states that in the
warning statement she took from the Plaintiff, the Plaintiff denied
that she took part in the armed robbery.
[9]
The Plaintiff informed her that the tackies were brought to her by
her boyfriend and
agreed that they should go and fetch them. The
Plaintiff was cooperating. They went to her home and retrieved the
tackies. She
testified that she placed the Plaintiff under arrest for
armed robbery as her boyfriend had earlier told her that the
Plaintiff
was present during the robbery.
[10]
Under cross-examination, she testified that she interviewed the
Plaintiff's boyfriend in the
cells four months earlier on 29 May 2018
and took his warning statement. She cannot remember if she wrote in
the statement that
Plaintiff's boyfriend implicated her in the
robbery. She also could not remember whether she noted in her
investigation diary whether
the boyfriend told her that the Plaintiff
participated in the robbery. She further could not explain why the
said warning statement
was not in the docket nor why it was never
discovered.
[11]
The second witness for the defendant was Sargent Hlamalani Ngobeni.
He testified that he
has been a police officer for twelve years
and confirmed that he was present at the police station when the
Plaintiff came to enquire
if the police were looking for tackies. He
testified that he concluded from the statement by Sgt Pelotona, who
arrested the Plaintiff's
boyfriend, that the Plaintiff was at the
scene of the robbery where her boyfriend gave her the tackies. He
conceded under cross-examination
that he never enquired from the
Plaintiff about her whereabouts when her boyfriend gave her the
tackies. He stated for the first
time that during the interview, the
Plaintiff said that she was with her boyfriend during the robbery but
never took part. Sgt
Ngobeni denied that the Plaintiff was pregnant
at the time of arrest, and the Plaintiff produced a birth certificate
of her child,
which showed conclusively that she was pregnant at the
time of the arrest.
The law
as applied to the facts
[12]
Section 12(1)(a) of the Constitution provides that everyone enjoys a
fundamental right to freedom
and security, including a right 'not to
be deprived of freedom arbitrarily or without just cause'.
Section
40(1)
of the
Criminal Procedure Act 51 of 1977
grant
discretionary powers to peace officers to arrest a person
without a warrant as long as the peace officer reasonably
suspects
that a suspect has committed an offence referred to in schedule 1
other than an offence of escaping from lawful
custody.
[13]
The jurisdictional facts for
section 40(1)(b)
defence are set out
Duncan
v Minister of Law and Order
[1]
,
namely, that the
arrestor must be a peace officer who entertained a suspicion, based
on reasonable grounds, that the arrestee had committed an offence
referred to in schedule 1.
[14]
In
Minister
of Safety and Security v Sekhoto & another
,
[2]
the
Supreme Court held that:
"
Once
the jurisdictional facts for an arrest . . . in terms of any
paragraph of section 40(1) . . . 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 that is consistent
with the Constitution. In other words, once the
required
jurisdictional facts are present, the discretion whether to arrest or
not arises. The officer, it should be emphasised,
is not
obliged to effect an arrest.
[15]
It would fall to this Court to satisfy itself, firstly, if the
arresting officer had reasonable
grounds to carry out the arrest and,
secondly, (if the answer to that is yes) if the arrest was necessary.
Reasonable
suspicion
[16]
In my view, the concept of a reasonable suspicion requires the
existence of some facts or information
which would satisfy an
objective observer that the person concerned may have committed the
offence. In
Mabona v
Minister of Law and Order
[3]
,
Jones J held that the test is an objective one involving an
enquiry into whether a reasonable person in the arrestor's
position
and having the same information would have considered that there were
'good and sufficient grounds' for suspecting that
the arrestee had
committed a schedule 1 offence, secondly, the arrestor is
required to analyse and assess the quality of
the information
critically and not accept it without checking it where it can be
checked. Thirdly, while the section requires
a 'suspicion but
not certainty', that suspicion must be based 'upon solid grounds'
because if it is not, it is 'flighty or arbitrary'
and not reasonable
suspicion.
[17]
The gist of Sgt Mrotolo's evidence is that she
arrested the Plaintiff based on what she was
orally told by the Plaintiff's boyfriend four months earlier and what
his sister told
her during the interview. She undertook no further
investigations before arresting the Plaintiff. She ignored the
various statements
in the docket that shows that the Plaintiff was
not involved in the robbery.
[18]
Her suspicion that the Plaintiff took part in an armed robbery does
not qualify as a reasonable
one for the following reasons. First, the
complainant and her boyfriend in the armed robbery case both made
statements under oath
stating that they were robbed at gunpoint by
three black males when they went out to buy food. Sgt Mrotolo
admits that the
two statements were in the docket and that she has
read them. She concedes that no mention is made of a female person
who was with
the robbers.
[19]
Second, Sgt Pelotona, who arrested the Plaintiff's boyfriend, made a
statement. Sgt Morotolo
confirmed that the statement was in the
docket when she interviewed the Plaintiff's boyfriend the day after
the robbery. Sgt Pelotona
stated that whilst patrolling with his
colleagues along Bendile Road in Soweto, they were stopped by one of
the complainants who
reported that he was robbed by three African
males driving in a white bakkie. They chased the bakkie, and two
males fell from the
bakkie and ran away. They arrested the occupants
of the bakkie and found a Samsung cellphone and a pair of tackies in
their possession.
No mention is made of a female person amongst the
robbers.
[20]
Sgt Morotolo testified that the relatives of Plaintiff's boyfriend,
who brought her to the police
station, told her that Plaintiff was
involved in an armed robbery. She alleges that the Plaintiff did not
deny that she took part
in the robbery. She, however, states that in
the warning statement she took from Plaintiff, Plaintiff denied that
she took part
in the armed robbery.
[21]
She testified further that prior to interviewing the Plaintiff and
four months earlier, the Plaintiff's
boyfriend had told her that he
handed the tackies to the Plaintiff at the robbery scene.
[22]
Under cross-examination, Sgt Morotolo testified that she took a
warming statement from the Plaintiff's
boyfriend but could not
remember whether she mentioned in the statement that the Plaintiff
was involved in the robbery. She could
not explain why the said
warning statement was not in the docket and accordingly not
discovered. She could also not explain why
she did not arrest the
Plaintiff in May after her boyfriend had implicated her in the armed
robbery. It bears mentioning that the
Plaintiff was in a relationship
with her boyfriend for over five years at the time, and their eldest
child was three years old,
and the Plaintiff was expecting their
second child. This raises the question of why should the boyfriend
implicate the mother of
his children in an armed robbery.
[23]
Sgt Mrotolo conceded under cross-examination that the Plaintiff came
to the station with her
boyfriend's sister to enquire whether it was
true that the police were looking for the tackies. She also admitted
that the Plaintiff
told her that the tackies were brought to her home
by her boyfriend. She acknowledged that she proceeded to place the
Plaintiff
under arrest without first verifying the information which
she provided.
[24]
Sgt Ngobeni was present during the interview. He contradicted the
evidence of Sgt Morotolo in
a material respect. He testified that the
Plaintiff said that she was with her boyfriend during the robbery but
never took part.
He was adamant that according to the arresting
statement drafted by Sgt Morotolo the Plaintiff admitted that she was
at the scene
when her boyfriend committed the robbery.
[25]
Sgt Ngobeni vehemently denied the averment by Sgt Morotolo that he
was the investigating officer.
He said that she was telling a lie. It
also bears mentioning that Sgt Mrotolo said that she was the
investigating officer only
to deny that under cross-examination. She
sought to distance herself from her the unlawful arrest of the
Plaintiff.
[26]
I find
the evidence of the two police officers to be neither
credible nor reliable, and I reject it. There was no information in
the docket
for Sgt Mrotolo and Sgt Ngobeni to form a reasonable
suspicion that the Plaintiff might be involved in the commission of a
crime.
The jurisdictional requirements in s 40(1) were accordingly
not established. The arrest and subsequent detention was unlawful as
it was not intended to secure the attendance of the Plaintiff at a
criminal court but was intended to harass, intimidate and harm
the
Plaintiff. She was not a flight risk and had a fixed address which
was known to Sgt Mrotolo. The Plaintiff could have been
given the
notice to appear in court instead of depriving her of her liberty and
thus impairing her dignity.
Quantum
[27]
In assessing the Plaintiff's damages, I find guidance
from the Constitutional
Court decision in
Minister
of Safety and Security v Tyulu
[4]
where
the Court held that:
"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 the 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
. I readily concede
that it is impossible to determine an award of damages for this kind
of injuria with any kind of mathematical
accuracy. 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 correct approach is to have regard to
all the facts of the particular
case and to determine the quantum of
damages on such facts. (
own underlining
)
[28]
It follows that the principles espoused by the Constitution are
essential in assessing
the Plaintiff's damages. Those principles
are the following:
(a)
Section 9 (1) Everyone is equal before the law and has the right to
equal protection
and
benefit of the law.
(b)
Section 10: Everyone has inherent dignity and the right to have their
dignity respected
and protected.
(c)
Section 12. Everyone has the right to freedom and
security of the person, which
includes the right :
(a)
not to be deprived of freedom
arbitrarily or without just cause;
(e)
not to be treated or punished in a cruel, inhuman or degrading way.
(d)
Section 35(1)(f): Everyone has the right to be released from
detention if the interests of justice
permit, subject to reasonable
conditions.
(e)
Section 35 (2)(e): Everyone who is detained has a 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;
[29]
With these principles in mind, the decision of this Court
must reflect these values
and that a "strong statement"
should be made that, in South Africa, we take the
protection of liberty and security of the
person
seriously. If a person is unlawfully deprived of these
protections, they are to be compensated in a
manner that is
commensurate with the value that we as a society attach to them.
[30]
The Constitutional Court in
Raduvha
v Minister of Safety and Security and Another
[5]
took
judicial notice of the fact that our detention centres, be it police
holding cells or correctional centres, are not ideal
places.
They are not homes. They are bereft of most facilities.
Plaintiff pleaded that during her unlawful detention,
she was treated
in a cruel and inhumane manner. She was detained in a filthy cold
cell and denied her freedom arbitrarily and without
just cause, and
was restricted in her freedom of movement for three days.
[31]
I have considered the fact that Plaintiff was 20 years old at the
time of her arrest and was
about four months pregnant. Her eldest
child was three years old. There was no shred of evidence
linking her to the commission
of a crime; still, she was detained in
a filthy cold cell and had to endure the company of a person she
considered mentally disturbed
because of how she was behaving,
screaming and talking incomprehensibly. She could not have a bath for
three days as the shower
was not working, and the experience was
traumatic to her.
[32]
Both parties have referred me to comparable cases which are
fact-specific and not much helpful.
I have assessed the Plaintiff's
damages in an amount that I consider proportionate to arbitrary
infringement of her constitutional
rights. I took into account the
high-handed, malicious and highly reprehensible conduct of Sgt
Mrotolo, which ought to be deterred.
In my view, a higher amount of
compensation is called for to mark the community's collective
condemnation (denunciation) of what
has happened to a relatively
vulnerable Plaintiff.
[33]
I believe that damages in the amount of
R300 000.00 are appropriate for the time spent by Plaintiff
in
detention away from her home and family.
Costs
[34]
At the beginning of the trial, the Plaintiff brought an application
to amend its particulars
of claim to reflect that Plaintiff was not
arrested at her home but at the police station. Counsel explained
that there was a miscommunication
with the Plaintiff, who does not
understand English. The amendment was intended to align the pleadings
with the evidence in the
docket. The defendant objected to the
proposed amendment misguidedly, believing that it will lose some
advantage. The defendant
unreasonably requested ten days to consider
the amendment. The objection to the amendment was mala fide as it was
intended to cause
an unnecessary delay.
[35]
Proper notice of the proceedings was given to the Defendants in
terms of Section 3(1) of
the Institution of legal proceedings against
certain Organs of State Act, 40 of 2002 on 16 October 2018. The
defendant acknowledged
receipt of the demand on 12 November 2018
instead of at least conceding liability; it defended the matter until
trial even though
there was no evidence in the docket implicating the
Plaintiff in the commission of a crime.
[36]
The Plaintiff had to wait for a substantial period to establish her
claim through no fault of
her own. It is accordingly only fair that
the Minister should be ordered to pay interest on the capital amount
from the date of
demand to the date of payment to protect the
Plaintiff against inflation.
[37]
The cumulative effect of all this calls for a punitive costs order.
[38]
In the result,
(a)
judgement is entered in favour of the
Plaintiff
(b)
the defendant is ordered to pay the Plaintiff R300 000.00 in
respect of damages for
arrest and detention;
(c )
the defendant is ordered to pay the Plaintiff's costs on an attorney
and client scale.
(d)
The defendant is ordered to pay mora interest at the prescribed rate
of interest from the
date of demand being 16 October 2018 to
the date of payment,
K
E MATOJANE
JUDGE OF THE HIGH COURT,
GAUTENG LOCAL DIVISION,
JOHANNESBURG
Appearances
Attorney
for Plaintiff:
L Naidoo
Counsel
for Defendant:
Advocate T Loabile-Rantao
Attorney
for Defendant:
D
Mphephu
[1]
1986
(2) SA 805
(A) at 818G-H.
[2]
2011 (1) SACR 315
(SCA), paras 28-29.
[3]
1988
(2) SA 654
at 658 E-H
[4]
2009
(5) SA 433 (SCA)
[5]
2016
(10) BCLR 1326
(CC)
at
para 68