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[2023] ZAGPJHC 678
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Morris v Minister of Police (42773/2013) [2023] ZAGPJHC 678 (9 June 2023)

REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA,
GAUTENG LOCAL
DIVISION, JOHANNESBURG
Case
Number:
42773
/2013
NOT REPORTABLE
NOT OF INTEREST TO
OTHER JUDGES
NOT REVISED
09.06.23
In the matter between:
STEVEN
MORRIS
PLAINTIFF
and
MINISTER
OF POLICE
DEFENDANT
NEUTRAL
CITATION:
Steven Morris vs Minister
of Police
Case No: 42773/2013) [2023]
ZAGP JHC 678 (09 June 2023)
This judgment was
handed down electronically by circulation to the parties/and or
parties’ representatives and uploading on
CaseLines. The date
and time of hand-down is deemed to be 09 June 2023 at 10h00.
JUDGMENT
JORDAAN AJ
INTRODUCTION
[1]
This is an action for damages arising from
the arrest and detention of the Plaintiff, Mr. Steven Morris, by
members of the Defendant,
acting within the course and scope of their
duty on the 12
th
of July 2013.
[2] Subsequent to his
release, the plaintiff instituted a claim for damages for the
unlawful arrest of the plaintiff on the 12
th
of July 2013
and his continued detention until his release.
[3]
The Defendant defends the action on the
basis that the plaintiff’s arrest and detention was justified
in terms of Section
40(1)(b) of the Criminal Procedure Act 51 of 1977
(“the Act”).
COMMON CAUSE
[4] At the outset of the
trial it was common cause between the parties that:
4.1 The plaintiff was
arrested on the 12
th
of July 2013 at approximately 04h00
;
4.2
the
plaintiff was arrested on a charge of Assault with intent to
do grievous bodily harm
;
4.3
the
plaintiff was arrested without a warrant of arrest
;
and
4.4
the
plaintiff was detained at Ennerdale Police Station Cells
.
ISSUES
[5] The issues remaining
for determination by this Court are:
5.1
Whether
or not the arrest and detention of the Plaintiff was justified in
terms of section 40(1)(b) of the Act; and if not
5.2 The quantum of
damages.
ONUS OF PROOF
[6] By virtue of its
defence, the defendant attracted the onus of establishing the
lawfulness of
the plaintiff’s
arrest
[1]
on a balance of
probabilities.  As a consequence, the defendant
also
attracted the duty to begin.
EVIDENCE ADDUCED BY
THE DEFENDANT
[7] Sergeant (Sgt) Pule
Moloi testified that he was a Constable (Cst) on 12
th
of
July 2013 when he reported for duty at 4am and went on suspect
tracing and arrest duties as part of the crew of Cst Buys. It
was his
evidence that they proceeded to 07
th
Avenue Ennerdale
where the plaintiff confirmed that he was the one who assaulted the
complainant. It then came to his mind to arrest
the plaintiff, which
arrest he executed without a warrant. It was further his evidence
that he charged the plaintiff at the Ennerdale
Police Station at
approximately 06h00 and the plaintiff was taken to court at 10h00.
[8] During
cross-examination it was the evidence of Sgt Moloi that he did not
depose to an arrest statement because he was not the
arresting
officer and he did not affect the arrest on the plaintiff, Cst Buys
was the arresting officer and she affected the arrest.
He further
testified that Cst Buys was the only one to enter into the yard he
was simply her crew and searched the plaintiff whom
she had arrested
as Cst Buys was female. Sgt Moloi testified that he did not read the
case docket upon which the complaint and
resultant arrest was based,
Cst Buys did. Sgt Moloi was confronted that he commissioned Cst Buys’
arrest statement after
the arrest of the plaintiff at 4am however, he
recorded the time of arrest on the docket as 5am and his oral
evidence was that
he arrested the plaintiff at 06h05 to which he
replied that he was inexperienced and that he cannot recall the time
of arrest and
he did not know the time of the plaintiff’s
release.
[9] During re-examination
Sgt Moloi testified that he heard the plaintiff state he assaulted
the complainant and he knew it was
the suspect because Cst Buys told
him, “it is him we have him”.
[10] At the conclusion of
the singular evidence of Sgt Moloi, the defendant closed their case.
EVIDENCE ADDUCED BY
THE PLAINTIFF
[11] The plaintiff, Mr.
Morris, testified that he is a self-employed man in the plumbing and
construction sector, who was born and
raised at 7
th
Avenue
Mid-Ennerdale, where he lives with his girlfriend, mother, brother,
two sisters and his two sons aged 15yrs and 3yrs respectively.
In the
early winter’s day hours of the 12
th
of July 2013,
while asleep with his family, Mr. Morris was awakened by a loud knock
at the door of his home. On establishing that
it was the police, he
opened the door dressed in his pyjamas and identified himself as
Steven Morris to the police when the police
stated that they were
looking for Tots. It was his testimony further that notwithstanding
the fact that he denied assaulting anyone
he was informed that he
will be arrested for assault and the police proceeded to cuff his
hands and arrest him while dressed in
his pyjamas.
[12] The further
testimony of the plaintiff recounted his detention at the Ennerdale
Police Station Cells where that he was detained
in a 15m
2
cell with approximately 15 cellmates in it. It was his testimony that
the cell was very cold and dirty, the toilet could not flush
and had
faeces in it, the shower was redolent of urine, the cell windows were
broken, he was not provided with a blanket and he
had nothing to sit
on and thus stood hunched forward. He further testified that due to
the cold, his arm was paining as a result
of a  previously
healed injury, but he was denied a phone call and never received pain
medication. He was later called out
of the cell with other cell mates
and processed for court. He was thereafter placed in a holding
facility with other arrestees
in preparation for transportation to
court. This holding facility had no roof and again no blankets were
provided until they were
transported to court. At the Vereeniging
Court Cells he was kept in the cells until late afternoon when he was
released from the
cells without appearing in court. He testified that
no provision for  transportation was made. He felt embarrassed
and humiliated
as he, as an adult man, had to walk in pyjamas in
public in Vereeniging, and had to request transport money from a
woman that he
knew work in the mall.
[13] It was his testimony
that he no longer trusted the police as they arrested him for assault
with intent to do grievous bodily
harm when he never assaulted
anyone, his younger son always ask if he will be arrested whenever he
sees police officers. His neighbours,
mom, sister and brother saw him
being arrested, which is an embarrassment to the plaintiff. It was
his testimony that people
in his community did not trust he will not assault them as a
contractor.
[14] There was no
significant cross-examination worth recounting and the plaintiff
closed their case at the conclusion of the evidence
of Mr. Morris.
THE LAW
[15] Section 40(1)(b) of
the Act reads as following:
“
40
Arrest by peace officer without warrant
(1)
A peace officer may without warrant arrest any person-
(a)
…
(b)
whom he reasonably suspects of having committed an offence referred
to in Schedule 1, other than the offence of escaping from
lawful
custody.”
[16]
Schedule 1 to the Act provides for a list of offences of which the
offence:
“
Assault, when a
dangerous wound is inflicted.”
is provided for in the
Schedule.
[17]
It is trite
[2]
that there are
four jurisdictional facts that has to be proved in justification of a
section 40(1)(b) defense, namely:
17.1
The arrestor must be a peace officer;
17.2
The arrestor must entertain a
suspicion;
17.3 The suspicion must
be that the suspect (the arrestee) committed an offence referred to
in Schedule 1; and
17.4
The suspicion must rest on reasonable
grounds
[18]
The determination whether a peace officer acted lawfully when he
arrested someone without a warrant is objective
-
whether, on an objective approach, the arresting officer in fact has
reasonable grounds for his suspicion that the plaintiff has
committed
an offence listed in Schedule 1.
[19]
Malicious
detention takes place under or in terms of a valid judicial process,
where the defendant makes improper use of the legal
machinery of the
state. The requirements to succeed in an action for malicious
detention are therefore like those for malicious
prosecution namely:
1.
that the defendant instigated the detention;
2.
that the instigation was without reasonable and probable cause; and
3.
that the defendant acted with
animus
iniuriandi
.
[3]
ANALYSIS
I will now have regard to
the evidence tendered to see whether the requirements have indeed
been met.
[20] Sgt Moloi initially
testified that he arrested the plaintiff, but later denounced that he
was the arresting officer- testifying
that he was not the arresting
officer, he was the crew to the arresting officer in that he searched
the plaintiff once Cst Buys
arrested the plaintiff and said “its
him”. Cst Buys was never called to testify.
[21] While Sgt Moloi
initially testified that the plaintiff was arrested on the charge of
assault with intent to do grievous bodily
harm, on the basis that the
plaintiff admitted that he assaulted the complainant. This version of
Sgt Moloi later changed to t
hat
he heard it from the distance that he stood away from the
plaintiff and Cst Buys as opposed to the initial impression he evoked
that he was one of the two officers that it was said to. The
plaintiff in contrast denied that he stated or admitted that he
assaulted
the complainant, it was his testimony that he denied
assaulting anyone and identified himself as Steven Morris. When Sgt
Moloi
was confronted with this version, he confirmed that the
plaintiff indeed stated that he is Mr. Morris.
[22] It was Sgt Moloi’s
further
evidence
that he never saw or spoke to the complainant, that he never read the
docket and that he did not know why the plaintiff
was being sought.
In the circumstances the evidence of Sgt Moloi does not rise to the
level of a reasonable suspicion that the
plaintiff committed a
Schedule 1 offence.
[23]
Having regard to the evidence this
court finds that the defendant,
burdened
with the onus to proof the lawfulness of the arrest of the plaintiff
on a balance of probabilities, has failed to discharge the
onus that
the arrest was lawful in terms of s40(1)(b) of the Act. It follows
that the plaintiff has established that his arrest
was unlawful.
[24]
Having regard to the evidence, no evidence of malicious detention was
presented.
On
this basis the claim for malicious detention cannot succeed.
QUANTUM
[25]
In assessing the plaintiff’s damages, the Court has regard to
what the SCA said in the
case
of
Minister
of Safety and Security v Tyulu
[4]
:
-
'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.’
[26]
The Court further has regard what the SCA stated in the case of
Rahim
[5]
:
“
[27]
The deprivation of liberty is indeed a serious matter. In cases of
non-patrimonial loss where damages are claimed, the extent
of damages
cannot be assessed with mathematical precision. In such cases the
exercise of a reasonable discretion by the court and
broad general
considerations play a decisive role in the process of quantification.
This does not of course absolve a plaintiff
from introducing evidence
which will enable a court to make an appropriate and fair award. In
cases involving deprivation of liberty
the amount of satisfaction is
calculated by the court
ex aequo et
bono.
In ter alia the following factors
are relevant:
(i)
the circumstances under which the deprivation of liberty took place;
(ii)
the conduct of the defendant; and
(iii)
the nature and duration of the deprivation.”
[27] The plaintiff, Mr.
Morris, testified that he was handcuffed and arrested at home at
approximately 4h00 on the cold winter’s
morning of the 12
th
of July 2013 in the presence of his family and view of his neighbours
in the community where he was born and raised. He was not
allowed to
change his clothing or get a jacket. The plaintiff is an adult man
self-employed in the plumbing and construction field.
[28]
Mr. Morris testified that
he was detained at the
Ennerdale
Police
Station Cells with approximately 15 other cellmates in
a 15m
2
cell which had approximately 15 other cellmates in
it. It was his testimony
that the cell was very
cold and dirty
, the toilet could not flush and had faeces in
it, the shower was redolent of urine, the cell windows were broken,
he was not provided
with a blanket and he had nothing to sit on and
thus stood hunched forward. He further testified that due to the
cold, his arm
was paining as a result of a previously healed injury,
but despite
requests
he never received
pain medication. He was thereafter placed in a holding facility with
other arrestees in preparation for transportation
to court. The
holding facility had no roof and no blankets were provided.
[29] Mr. Morris was later
released from the Vereeniging Court Cells at approximately 15h30
without  appearing in court and
suffered the indignity of having
to walk in pyjamas into a mall in Vereeniging in order to obtain
transportation from a person
he knew. He then had to embark on a
train to Ennerdale and walk a further one kilometre from the train
station to his home. Mr.
Morris was detained for eleven and a half
hours from his arrest at approximately 04h00 until his release from
the Vereeniging Court
Cells at approximately 15h30.
[30] This court is
nonetheless reminded about what
Holmes J in
Pitt
v Economic Insurance Co Ltd
1957 (3) SA
284
(D) stated: -
'(T)he Court must take
care to see that its award is fair to both sides – it must give
just compensation to the plaintiff,
but it must not pour out largesse
from the horn of plenty at the defendant's expense.'
[31]
The
court had regard to the Heads of Argument of the parties and
comparative authority. In the case of
Minister
of Police and Another v Erasmus
[6]
the
plaintiff was suspected of having committed the crime of
housebreaking with intent to steal and theft. He was arrested and
detained in unpleasant conditions for approximately 20 hours and the
High Court awarded R50 000 in damages. The award was reduced
to
R25 000 by the SCA.
[32]
The court further has had regard to what was stated in the Minister
of Safety and Security v Seymour
[7]
“
Money
can never be more than a crude solatium the deprivation of what, in
truth, can never be restored and there is no empirical
measure for
the loss. The awards I have referred to reflect no discernable
pattern other than courts are not extravagant in compensating
the
loss. It needs to be kept in mind that when making such awards there
are many legitimate calls upon the public purse to ensure
that the
other rights that are no less important also receive protection.”
[33]
The case law Court has been referred to, merely serves as a guide as
the facts of this case is distinguishable from the cases
referred to.
This Court awards damages bearing the full eleven and a half hours of
detention in mind, the humiliation and degradation
in the arrest and
detention, the public humiliation Mr. Morris suffered walking in
pyjamas, the unhygienic and cold cell that he
was detained in and the
failure to provide a phone call, pain tablets and blanket while
bearing comparable caselaw and authorities
in mind.
COSTS
[34]
Throughout the proceedings, the plaintiff has not advanced any
circumstances nor was the matter of a complexity warranting
the
institution of these proceeding in the High Court. In this matter at
an earlier pre-trial
[8]
held on the 18
th
day of May 2022 the parties agreed that the matter be transferred to
the Magistrates Court, however this never happened. Court
in the
exercise of its discretion and having heard the evidence submitted in
the case, is of the view that there is nothing justifying
the
institution of the claim in the High Court. For this reason, costs
will be awarded on the Magistrates Court scale.
ORDER
OF COURT
1.
The arrest of
the plaintiff on the 12
th
day of July 2013 is found to be unlawful.
2.
The claim for
malicious detention is dismissed with costs.
3.
The Defendant
is ordered to pay the Plaintiff damages in the sum of R 50 000.00
(Fifty Thousand Rand).
4.
The Defendant
is ordered to pay the Plaintiff interest on the said amount of
R50 000.00 (Fifty Thousand Rand) at the rate of
15.5% commencing
15 days after the date of this order until date of payment.
5.
The Defendant
is ordered to pay the Plaintiff’s costs of this action on the
Magistrates Court scale.
M
T Jordaan
Acting
Judge
of the
High
Court,
Johannesburg
HEARD ON 7 to 8 February
2023
JUDGMENT DATE 09 June
2023
FOR
THE PLAINTIFF
Adv J Mamitja
Email
fhatuwani2009@hotmail.com
INSTRUCTED
BY
Madelaine Gowrie
Attorneys
Email
admin@mgowrieattorneys.co.za
FOR
THE DEFENDANT
Adv M Memane
Email
memanemduduzi@gmail.com
INSTRUCTED
BY
The State Attorney
Email
VManamela@justice.gov.za
[1]
Minister
of Safety and Security and Another v Swart
2012 (2) SA 226
SCA at 19
[2]
Duncan
v Minister of Law and Order
1986
(2) SA 805
(A) at 818G.
[3]
Neethling
et al
Law
of Delict
5
ed (2006) at 304-306
[4]
2009
(5) SA 85
[5]
Rahim
and Others v Minister of Home Affairs
2015
(4) SA 433
SCA
[6]
[2022]
ZASCA
(22
April 2022)
[7]
2000
(6) SA 320
SAC at 326
[8]
CaseLines
002-6 paragraph 7