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[2010] ZAGPPHC 580
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Murrell and Another v Minister if Safety and Security (24152/2008) [2010] ZAGPPHC 580 (2 February 2010)
IN
THE NORTH GAUTENG HIGH COURT. PRETORIA
[REPUBLIC
OF SOUTH AFRICA]
CASE NO:
24152/2008
In the matter
between:
IAN
GORDON MURRELL
….....................................................................................................
First
Plaintiff
SIYANANISO
MASHAVA
….................................................................................................
Second
Plaintiff
and
MINISTER
OF SAFETY AND
…....................................................................................................
Defendant
SECURITY
JUDGMENT
KOLLAPEN A J
1. This is an action
for damages for wrongful arrest and detention brought by the
Plaintiffs against the Defendant arising out of
the arrest and
detention of the Plaintiffs by members of the South African Police
Services acting in the course and scope of their
employment with the
Defendant.
2. The arrest which
occurred on the 21
s1
August 2007 at Beit Bridge was
followed by the detention of plaintiffs who were initially held at
Beit Bridge Police Station and
thereafter at the Musina Police until
their release on the 22
nd
August 2007.
The facts
3. Most, if not all.
of the material facts in this matter are common cause. The 1
sl
and 2
nd
Plaintiff, citizens of Australia and Zimbabwe
respectively, were living in the United Kingdom during 2007 and had
come to South
Africa on a holiday arriving in the country on the 14
th
August 2007. On the 19
th
August 2007 they proceeded to
hire a vehicle, a Toyota Tazz, registration number T[...], from Avo
Car Rental in Boksburg and were
issued with an invoice and other
relevant documentation in respect of the hire of the vehicle. The
period of hire was to be until
the 24
th
August 2007. The
vehicle was registered in the name of one H A Strauss, who was either
the owner alternatively a partner in the
firm Avo Car Rental.
4. On
the 21
st
August 2007 and at Ultra City near Beit Bridge
the vehicle was involved in a minor collision which resulted in no
damage to the
vehicle. The Plaintiffs, as a cautionary measure,
decided to report the accident to the SAPS and proceeded to the Beit
Bridge Police
Station where they were attended to by Constable
Mamabolo. Mamabolo proceeded, as was the practise, to check the
status of the
vehicle on the computerised SAPS Circulation System and
it emerged from the system that the vehicle was listed as stolen.
Mamabolo
then called the Investigating Officer in the matter, one
Inspector Botha who was off duty at the time and not in possession of
the docket but who nevertheless confirmed the status of the vehicle
as being stolen.
5. The Plaintiffs
upon being confronted by this allegation explained that they had in
good faith hired the vehicle from Avo Car
Rental and placed Mamabolo
in possession of the relevant hire documents in support of their
claim. Mamabolo then called Avo Car
Rental spoke to one Lotz who
confirmed the hire of the vehicle to the Plaintiffs. Lotz however
denied any knowledge of the vehicle
having being stolen. It was
common cause however that the vehicle had been stolen on the 10
th
May 2007 and recovered on the 12
lh
May 2007. The
circumstances around the recovery of the vehicle was not clear and it
appears that the police may not have been informed
about the fact of
the recovery of the vehicle The police docket was also incomplete as
it appears that some pages from the docket
were missing and nothing
could be ascertained from the docket with regard to the recovery of
the vehicle.
6. Mamabolo then
proceeded to arrest both Plaintiffs who were initially detained at
Beit Bridge Police from where they were transferred
to the Police
cells at Musina and held overnight. Both plaintiffs were arrested at
approximately 17h00 on the 21
st
August 2007 and were
unconditionally released at approximately 11h40 on the 22
nd
August 2007.
The issues
7. The arrest and
detention of both Plaintiffs was admitted but it was contended on
behalf of the defendant that both the arrest
and detention were
lawful in terms of Section 40(1 )(b) of the
Criminal Procedure Act No
51 of 1977
, in that the arresting officer, prior to effecting the
arrest, had formed a reasonable suspicion that the Plaintiffs had
committed
an offence, namely a contravention of
Section 36
of Act 62
of 1955 - the failure to give a satisfactory account of the
possession of goods reasonably suspected of being stolen.
8. The question of
the damages allegedly suffered by the Plaintiffs was also placed in
issue.
9. On behalf of the
Defendant it was admitted that the policemen in question were at all
relevant times acting in the course and
scope of their employment
with the Defendant and further that Plaintiff had complied with the
provisions of the Institution of
Legal Proceedings against Certain
Organs of State Act No 40 of 2002.
Discussion
10.
Section 40(1)
(b) of the
Criminal Procedure Act 51 of 1977
Provides that:-
“
A
peace officer may without a warrant any person -(b) whom he
reasonably suspects of having committed an offence referred to in
Schedule 1. other than the offence of escaping from lawful custody. ”
11. Section 36 of
the General Law Amendment Act 62 of 1955 provides that:-
“
Any
person who is found in possession of any goods
,
other than stock
or produce as defined in section 1 of the Stock Theft Act 57 of 1959
,
in regard to which
there is reasonable suspicion that they have been stolen and is
unable to give a satisfactory account of such
possession, shall be
guilty of an offence and liable on conviction to the penalties which
may be imposed on a conviction of theft".
In
Duncan v Minister
of Law and Order
1986 (2) SA 805
(A) at 818G-H,
the
Appellate division concluded that in order to be able to rely on the
protection of section 40(1 )(b) it must be established
that:
(a) The person who
affected the arrest was a peace officer;
(b) He must have
entertained a suspicion;
(c) It must be a
suspicion that the arrestee committed an offence referred to in
Schedule 1 of the
Criminal Procedure Act;
>
(d) The suspicion
must rest on reasonable grounds.
12.
In this matter the dispute centred essentially around the issue of
whether the suspicion ‘rested on reasonable grounds'.
In
determining the question of reasonableness the dicta of our Courts
are instructive and in
Mabona
& Another v Minister Law and Order & Others 1988
(2) SA 654 (SE) at 658E to F,
Jones
J described the test and the process by determining whether it was
met as follows:-
“
Would
a reasonable man in the Second Defendant’s position and
possessed of the same information have considered that there
good and
sufficient grounds for suspecting that the Plaintiffs were guilty of
conspiracy to commit robbery or possession of stolen
property knowing
it to have been stolen?”
13
.
In
Ralekwa v Minister
of Safety and Security 2004 (2) SA 342 (T),
De
Vos J alluded to a suspicion which was
objectively
sustainable
.'
14. It is clear that
the test of reasonableness contemplates a thorough and critical
assessment and evaluation of all the relevant
and available
information by the arresting officer. That this is so is both
understandable and justifiable. Our new Constitutional
order places a
high premium on individual freedom and liberty. From the founding
provisions and beyond, the commitment to freedom
and dignity
resonates powerfully in the architecture of the Constitution both as
values as well as fundamental and justifiable
rights.
15. Accordingly it
must follow that any attempt to restrict such freedom and liberty
should naturally be subject to strict and exacting,
but not
unreasonable, standards. While the scourge of crime and violence does
indeed represent a significant threat to our young
democracy, it
cannot in itself serve as a justification to depart from the norms
and standards that characterise ours as a constitutional
state
committed to fairness and justice. What is required however is not
the wisdom of hindsight but a suspicion that is based
on substantial
grounds failing which the suspicion may well be of the nature
described by Jones J in Mabona supra as ‘ flighty
or
arbitrary’.
16. I now proceed to
determine whether the actions of Constable Mamabolo satisfy the
criteria of reasonableness as set out in
Section 40(1)
(b) of the
Criminal Procedure Act No 51 of 1977
and as amplified and given
content to by the dicta of our Courts.
17. In making that
assessment the following relevant information served before Constable
Mamabolo and required his critical consideration:-
(a) The SAPS
Circulation System reflected the vehicle as being stolen.
(b) The
investigating Officer telephonically confirmed the status of the
vehicle as being stolen.
(c) The Plaintiffs
on their own volition had approached him for assistance on the day in
question to report a minor collision, which
probably did not warrant
reporting.
(d) The Plaintiffs
provided an explanation of the circumstances under which they came to
be in possession of the vehicle - namely
that they were bona fide
hirers of the vehicle.
(e) The Plaintiffs
placed Mamabolo in possession of documentation which on the face of
it indicated the hiring of the vehicle by
the Plaintiffs from Avo Car
Rental.
(f) He was able to
verify all the information in the car hire documentation provided by
the Plaintiffs with Avo Car Rental.
(g) The address of
the owner of the vehicle on the SAPS Circulation System namely H.A.
Strauss, corresponded with the address of
Avo Car Rental that
Constable Mamabolo called and that appeared on the vehicle hire
documentation.
(h) Mr Lotz at Avo
Car Hire had no knowledge of the vehicle having being reported stolen
and was unable to confirm the status of
the vehicle as being stolen.
Mamabolo accepted that Lotz had the authority to speak on behalf of
the owner of the vehicle and accordingly
saw no need to phone
Strauss, the owner.
(i) The vehicle was
reflected as being stolen on the 10
th
May 2007, a time
when both Plaintiffs were not in the Republic of South Africa.
18. While the police
status reflecting the vehicle as stolen may have justifiably created
some suspicion with regard to it’s
status it is indeed
difficult to contemplate how any reasonable person placed in
possession of all the above information and in
particular the
explanation offered by the Plaintiffs could persist in the belief
that the Plaintiffs had committed an offence as
described in
Section
36
of Act 62 of 1955.
19.
The explanation offered by the Plaintiffs and verified by Mamabolo
was more than satisfactory.
The
Shorter Oxford Dictionary 6
th
Edition pp 2672
defines
satisfactory as being
‘
sufficient
or adequate’
and
it is apparent that the Plaintiffs went beyond discharging the
obligation placed upon them by Section 36. Simply put, the Plaintiffs
could do no more and yet for some unfathomable reason it was not
enough for Mamabolo who then proceeded to effect the arrest of
the
Plaintiffs.
20. It is worth
recalling the evidence of Inspector Botha at this juncture who opined
that in his view the explanation offered by
the Plaintiffs was both
reasonable and satisfactory. On the other hand Mamabolo persisted in
his stance that the explanation offered
was not satisfactory but
failed to elaborate why he took such a stance.
21. He alluded to
the existence of smuggling syndicates and suggested that the
possibility that the Plaintiffs may well have been
a part of such
syndicates could not be excluded in his mind. That possibility in the
circumstances and on the available information
is so remote and
fanciful that it renders whatever suspicion he may have had flighty
and hardly objectively sustainable.
22. It was argued
for the Defendant that the information from the SAPS Circulation
System reflecting the vehicle as stolen . the
confirmation by
Inspector Botha that the vehicle was indeed still on the stolen list
and the denial by Lotz about the vehicle being
stolen was sufficient
to found a reasonable suspicion . I am unable to agree with this
contention and it is certainly not sustainable.
In making the
determination of reasonableness, all the relevant available
information should be considered. This cannot be a selective
process
where reliance is placed on some factors while others which do not
support the stance taken are ignored.
23.lt must therefore
follow and for the reasons outlined above that the Defendant has
failed on the probabilities to prove that
the arrest and subsequent
detention of the Plaintiffs was justified and that the requirements
of
Section 40(1)(b)
of the
Criminal Procedure Act No 51 of 1977
were
satisfied.
24. It is
accordingly held that the arrest of both Plaintiffs on the 21
s1
August 2007 I and their subsequent detention from the 21
s1
August 2007 until their release on the 22
nd
August 2007
was unlawful.
The
Quantification of Damages
25. The Plaintiffs
were arrested on the 21
st
August 2007 at about 17h00 and
initially detained in a room at Beit Bridge Police from where they
were transferred to the Musina
Police cells. They were incarcerated
in separate cells from approximately 21h00 that evening until 8h00
the following day. They
were then taken to Beit Bridge from where
they were unconditionally released at approximately 11 h40 on the
22
nd
August 2007.
26. Both Plaintiffs
requested legal representation on no less than three occasions from
the time of their arrest but nothing was
forthcoming and the attempts
by the police to secure representation can only be described as half
hearted, grudging and unenthusiastic.
It was hardly a case of a
constitutional obligation being performed diligently and without
delay as is required by Section 237
of the Constitution.
27. The 1
st
Plaintiff was held in a cell with some 20 other inmates under the
most trying of conditions. The toilet was not in a condition
that
rendered it usable and there was no offer of food or water. He shared
a sleeping space with a self confessed murderer and
offered money and
cigarettes in return for protection. Needless to say he spent the 11
hours in that confined and intimidating
space anxious, bewildered and
unable to sleep. The 2
nd
Plaintiff fared no better - she
too shared a cell with others, was offered no food or water or even a
blanket. She described the
toilet as being strewn with faeces and sat
upright against the wall during her 11 hours in the cell. The 1
st
Plaintiff was hospitalised immediately upon his return to England on
the 25
th
August 2007 for pneumonia like symptoms and while
there was a broad suggestion that his incarceration may have
contributed to his
ill health, there was no evidence to support that
conclusion and it will accordingly not be considered for the purpose
of this
judgment.
28. There is little
doubt that the Plaintiffs experience was traumatic and distressing.
At one point they were carefree holiday
makers exploring the beauty
and experiencing the splendour of a remarkable country and within an
hour they were rendered criminals
and confined to cells where the
conditions fell shockingly short of the constitutional imperative
found in Section 35(2) (e) of
the Bill of Rights that every detained
person be held under conditions consistent with human dignity. They
were alone with no access
to family, friends or a lawyer and until
their release were totally uncertain about how the matter of their
arrest and detention
would unfold. It is accordingly necessary that
the award of damages must recognise both the significance of the
values of freedom
and dignity that we are enjoined to uphold as well
as respond to the trauma and the anguish the Plaintiffs had to
undergo under
circumstances that were not of their making and were
easily avoidable.
29.
The awards by our Courts in other matters of a similar nature provide
a useful basis for comparison in determining a fair and
just award.
At the same time one must be mindful of the caution expressed by
Innes CJ in
Hulley
v Cox
1923 AD 234
at 236
that
such a comparison while instructive could never be decisive. I have
been referred to numerous cases by Counsel that provides
some general
guidance in this regard and they include:-
Louw A O v
Minister of Safety and Security A O
2006 (2) SACR 178
(T).
Liu Quin Ping v
Akani Egoli (Pty) Ltd t/a Gold Reef City Casino
2000 (4) SA 68
(WLD).
Seria v Minister
of Safety and Security and Others
2005 (5) SA 130
(CPD).
Heyns v Venter
2004 (3) SA 200
(T).
30. Of course one
must guard against the danger of a mechanical approach to awards in
these matters where freedom and liberty are
computed by reference
purely to time and an hourly rate for such deprivation begins to take
root. Freedom and liberty are germane
to the identity and the very
existence of the individual and when they are undermined without
justification Courts should through
their awards reaffirm the primacy
of such values and rights.
31. Reverting to the
conditions of detention that the Plaintiffs were subjected to. the
Defendant suggested that a lack of resources
prevented a situation
where the conditions of detention could be said to conform with the
prescripts of the Constitution. While
I am mindful of the resource
constraints a new and young democracy such as ours experiences, I am
not convinced that the problem
can always be attributed to a lack of
resources.
32. What is required
is a consciousness of caring and a commitment to the well being of
those detained. That can often make a significant
difference
notwithstanding the constraint on resources and in this matter such
an approach may well have eased the trauma and the
distress the
Plaintiffs experienced during their detention. It was not
forthcoming.
For the above
reasons I am of the view that on award of R 90 000.00 for each
Plaintiff would be just and appropriate in the circumstances.
As a result I make
the following order:-
1. The arrest and
the detention of the Plaintiffs from the 21st August 2007 until the
22
nd
August 2007 was unlawful.
2. The Defendant
is ordered to pay to each of the Plaintiffs the sum of R 90 000.00 as
damages.
3. The Defendant
is order to pay mora interest on the amounts referred to in paragraph
2 at rate of 15.5% per annum from the date
of judgment.
4. The Defendant
is ordered to pay the costs of suit.
KOLLAPEN AJ
ACTING JUDGE OF
THE HIGH COURT