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[2010] ZAGPPHC 559
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Payne v Minister of Safety and Security and Others (21226/2004) [2010] ZAGPPHC 559 (5 February 2010)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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IN THE HIGH COURT
OF SOUTH AFRICA
(NORTH
GAUTENG
,
PRFTORIA)
DATE: 5 February
2010
CASE NO: 21226/2004
NOT REPORTABLE
NOT OF INTEREST TO
OTHER JUDGES
In the matter
between:
CHARLES PHILLIP
PAYNE
........................................................................................................
PLAINTIFF
And
MINISTER OF
SAFETY AND
SECURITY
.......................................................................
1
st
DEFENDANT
NATIONAL
COMMISSIONER FOR THE
SOUTH AFRICAN
POLICE
SERVICES
..........................................................................
2
nd
DEFENDANT
PROVINCIAL
COMMISSIONER FOR THE
SOUTH AFRICAN
POLICE
SERVICE
............................................................................,
3
rd
DEFENDANT
ELIAS JOHANNES
ROUX
.................................................................................................
4
TH
DEFENDANT
JUDGMENT
MAKGOKA. J
[1] This is an
action for damages consequent upon the arrest and detention of the
plaintiff. It is common cause that the plaintiff
was arrested by the
fourth respondent on 9 February 2004 and detained at the Norwood
Police Station until 11:00 the following day,
10 February 2004,
without being charged. The plaintiffs arrest was in execution of a
warrant of arrest authorised by the magistrate
of Johannesburg on 7
December 1995.
[2] The
circumstances that led to the issue of the warrant are the following:
during May 1995, a Mr Charles Phillip Payne, with
ID No: 5[...], made
fraudulent purchases from three companies. On 23 May 1995, he
purchased goods from Consumer Classic (Pty) Ltd
t/a Encyclopaedia
Britannica, in the amount of R12 482.00, payable over eighteen
months. He did not pay for the goods.
[3] On 30 May 1995,
trading as Charles Payne Construction, he ordered goods to the amount
of R21 798.00 from Electrolux SA (Pty)
Ltd on a cash-on-delivery
basis. When the goods were delivered to his offices, Mr Charles Payne
informed the delivery man that
the second signatory to the cheque was
not available. It was then arranged that delivery would take place,
and the cheque to be
collected on 5 June 1995. When a director of
Electrolux went to Mr Payne’s business premises on 5 June 1995,
Mr Payne was
nowhere to be found, together with the delivered goods.
[4] On 12 June 1995,
he drew a cheque in favour of Pick ‘n Pay, for goods purchased.
The cheque was later dishonoured.
Evidence
[5] The plaintiff,
as well as his son, testified on his behalf. For the defendants, the
fourth defendant, Inspector Esias Johannes
Roux (“Roux”)
and Inspector Bright Rato Motsekedi, testified.
[6] The plaintiff
testified that during June 1995 one Sam Rego of Tile Africa,
Woodmead, phoned him and demanded payment for goods
sold and
delivered to him. He informed Mr Rego that he had never bought goods
from Tile Africa, Woodmead. Rego told him that they
had a copy of his
identity document, which was faxed to him later.
[7] The copy of the
identity document bore the following: a picture of a bearded man,
whom the plaintiff stated was not him; ID
No: 5[...] issued in the
name of Charles Phillip Payne on 7 May 1980. It further bore an
endorsement that the bearer participated
in the referendum on 17
March 1982.
The plaintiff’s
arrest
[8] The plaintiff
testified that Roux arrived at his residence just before midnight on
9 February 2004. He was woken up by his son,
who informed him that
the police officers were there to arrest him. When he asked Roux the
reason for his arrest, Roux simply said
to him that, he, the
plaintiff, knew the reason. He then explained to Roux that there was
a person who had stolen his ID in Brits
and that that person was the
culprit, who used his false identity document.
[9] The fourth
respondent was not interested in his explanation and ordered him to
come along, otherwise he would handcuff him.
At that stage he was
only clad in a “pikkie broek”, a t-shirt and sandals.
There were people who were watching and
he felt aggrieved at being
treated like a criminal.
[10] He was placed
inside an unmarked police vehicle. There was a lady inside the
vehicle and Roux drove at a very high speed. He
was taken to the
Norwood Police Station where a warning statement was completed and
signed. He was detained at the police station
overnight. The cell in
which he was kept was dark, there was no bed, just a mattress. The
cell was unhygienic. He was released
the following day at
approximately 11:00 after appearing in court. He was not charged.
[11] In
cross-examination he stated that the identity number that was used
for the purchases is his old identity number. His new
and present
identity number is the same, save for the last three digits. The old
number ended up with 006, whereas his new number
ended with 089.
Asked why he applied for a new identity document, he stated that he
got divorced at some stage, hence he applied
for a new identity
document.
[12] The plaintiff
testified further during cross-examination that since the new
identity number was allocated to him in 1990 he
never used his old
identity number.
[13]
He was, however, challenged by Mr
Maakane,
for
the defendants, with a supposition that, despite him having obtained
a new identity book on 13 August 1990, he continued to
use the old
identity number. Two documents were used by Mr
Maakane
to
illustrate this point. The first document is an affidavit that the
plaintiff deposed to on 8 February 1996 in response to Rego
of Tile
Africa’s demand for payment. This affidavit was deposed to by
the plaintiff to explain that he was not the person
who had had
purchased goods from Tile Africa. In the preamble of the said
affidavit, the plaintiff stated his full names as well
as ID No:
5[...], his old ID number.
[14] The second
document whereon the same ID number appears is the plaintiff’s
warning statement. The plaintiff’s explanation
with regard to
the affidavit was that same was drafted by his attorney who used his
old identity number. On the police warning
statement he stated that
he provided all other particulars thereon, except for the ID number.
The suggestion obviously being that
someone else inserted his old
identity number on the warning statement. I find the above
explanations flimsy and unconvincing.
The attorney must have drafted
the affidavit from the information provided by the plaintiff. Where
else would the attorney have
obtained the ID number from, if not from
the plaintiff himself? In any case, the plaintiff signed the
affidavit, having satisfied
himself that the information contained in
the affidavit, was correct, including his ID number. With regard to
the police warning
statement, he similarly must have supplied the old
ID number to the police officer who was taking down his statement.
His explanation
that he provided all other information except the ID,
is therefore unpersuasive.
[15] I shall assume,
without deciding the issue, that the plaintiff was in fact, not the
person intended in the warrant of arrest.
The next question to be
decided is whether Roux can seek immunity in terms of
section 46(1)
of the
Criminal Procedure Act, 51 of 1977
. The section provides as
follows:
“
46.
Non-liability for wrongful arrest
(1) Any person
who is authorised to arrest another under a warrant of arrest or a
communication under
section 45
, and who, in the reasonable belief
that he is arresting such a person, arrests another, shall be exempt
from liability in respect
of such wrongful arrest."
[16]
The test which has to be applied to establish “reasonable
belief” set out in the subsection was laid down in
Ingram
v Minister of Justice
1962
(3) SA 225
(W) at 229 E-H, where it was decided that in determining
this aspect, the question is asked whether a reasonable and careful
man
who has been entrusted with the execution of the warrant, would
have believed that the person whom he had taken into custody was
the
person identified in the warrant.
[17] In this regard,
Roux testified that he received the docket from Norwood Police
Station and noted a warrant of arrest for a
Mr Charles Phillip Payne.
He obtained a profile from the police records and noticed further
therefrom that a BMW motor vehicle
was registered against Charles
Phillip Payne’s identity number 5[...].
[18] He proceeded to
the address mentioned in the warrant, namely 3[...] S[...] V[...]
Flat, 1
st
A[...] Street, S[...], Pretoria accompanied by
members of the “blits” patrol. Upon arrival he was
welcomed by the plaintiff’s
son and told him he was looking for
Charles Payne. The son called the plaintiff whereupon Roux introduced
himself to the plaintiff.
He asked him whether he was Charles Payne
and the plaintiff confirmed it. He asked the plaintiff for his
identity document. He
noticed that the plaintiff produced the old
“big” identity document. He opened it and the ID number
thereon was exactly
the same as that in the warrant. The plaintiff
denied that Roux asked for his ID book. I find it highly improbable
that Roux would
have proceeded to arrest the plaintiff without having
established his identity, more so in light of the nature of the
complaints
which led to the issue of the warrant.
[19] He also noted
the BMW motor vehicle mentioned above and also questioned the
plaintiff about it. This was not disputed in cross-examination
or
during the plaintiff’s evidence-in-chief. He told him that he
was arresting him on the basis of a warrant for theft under
false
pretences. It was approximately 22:15 when he arrested him. He gave
him a copy of the warrant and left the plaintiffs identity
book with
his wife. He told the plaintiffs family that he was taking the
plaintiff to the Norwood Police Station where he immediately
drove
to. At the police station he detained the plaintiff and explained his
constitutional rights to him and the reason for his
arrest. Roux must
also be criticized for not confiscating the plaintiffs old ID book.
This was surely one of the exhibits that
could be used in the
possible trial of the plaintiff.
[20]
It was argued by Mr
Maakane
that
the plaintiff was arrested on the basis of a warrant, the validity of
which was not challenged and that the person whom the
warrant had
been directed at, was the plaintiff. On the other hand, Ms
Van
der Heever
on
behalf of the plaintiff contended that given that the warrant was an
old one and that the plaintiff gave an explanation to Roux,
the
latter should have been more circumspect and prudent in arresting the
plaintiff. In short, the plaintiffs argument is that
there was
“theft” of his identity by an unknown person as a result
of which he, as an innocent person, was arrested
instead of the real
culprit.
[21]
Ms
Van der Heever
relied
on
Ingram,
as
well as
Minister
van Wet en Orde v Van der Heever
1982
(4) SA 16
(C), for the proposition that Roux’s conduct in
arresting the plaintiff was not prudent and failed to meet the test
laid
down in both cases. In my view, the present case is
distinguishable from both
Ingram
and
Van der Heever,
on
the facts.
[22]
In both those matters it was common cause that there was a clear
mistaken identity, whereas in the present action, this is
not common
cause. In
Ingram,
the
warrant reflected the name of the plaintiff. It was, however, in fact
meant for the plaintiffs son who had a similar name. In
Van
der Heever,
the
warrant was issued in the name of the plaintiffs brother, John, while
the real intendee was his brother, Rudolph. What led to
the confusion
is that, upon his arrest on a charge of drunken driving, Rudolph had
furnished the police with the name of his brother,
John. Rudolph was
tried and convicted under the name of his brother, John. After
conviction, he failed to appear for sentence.
A warrant was issued in
the name of John, upon which the accused’s brother was
arrested. John was later released when it
transpired that the warrant
was not intended for him but for his brother, Rudolph.
[23]
I have also considered the views expressed in a judgment of this
Division in
Edwards
v Beneke
1970
(2) SA 437
(T). The court in that case was also, as in
Ingram
and Van der Heever,
faced
with a question of a mistaken identity where a warrant intended for
one individual was executed upon the other. It was held
at 440A-B,
where the evidence established that the appellant was the person
against whom the warrant had been directed, that the
sheriff or his
deputy was entitled to arrest the appellant even if, as it
subsequently transpired, he was not the real judgment
debtor.
[24]
Reverting to the facts of the present case, when evaluating the
conduct of Roux on the night of the plaintiffs arrest, I take
into
account the following: first, that
prima
facie,
the
person named in the warrant and the plaintiff, were one and the same
person, secondly, that upon being requested to produce
his identity
document the plaintiff produced the old identity document, the number
of which corresponded with the identity number
in the warrant.
Thirdly, Roux also noticed the BMW motor vehicle at the plaintiffs
premises, which had been registered under the
plaintiffs name with
the identity number reflected on the warrant. Lastly, at the police
station, the plaintiff furnished the identity
number which
corresponded with the one on the warrant.
[25]
On the above considerations, I come to the conclusion that Roux acted
ordinarily prudent and reasonably under the circumstances.
Regarding
the evidence of the plaintiff that he tried in vain to explain to
Roux that this was a case of mistaken identity, I agree
with Roux’s
retort that under the circumstances of the case he would still have
arrested the plaintiff. What the plaintiff
sought to convey to Roux,
amounted to a possible defence in a criminal trial. In my view, Roux
had conducted a “mini enquiry”
alluded in
Van
derHeever.
The
plaintiffs case therefore falls to be dismissed.
[26] Finally the
issue of costs. The costs of the action should follow the cause.
There are, however, costs occasioned previously
on different
occasions, namely 11 October 2006 and 4 March 2009. On the former
occasion, the matter had to be postponed due to
the late filing of
the defendants’ discovery affidavit in terms of which the
warrants of arrest were discovered. On the latter
occasion, the
defendants applied for a postponement due to unavailability of the
witnesses for the defendants.
I reserved costs on
that occasion. In my view the costs occasioned on 4 March 2009 should
be paid by the defendants jointly and
severally. With regard to the
costs occasioned on 11 October 2006 I deem it fair and just that I
make no order as to costs. I am
not persuaded that the late discovery
should necessarily result in a postponement. Only in cases where the
discovered documents
are voluminous and of a complex nature, which
require extensive consultations and preparation, would it be proper
to postpone the
matter on that basis.
[27] I therefore
make the following order:
1. The plaintiff’s
action is dismissed with costs.
2. The said costs
shall not include the costs occasioned on 4 March 2009, which costs
shall be paid by the defendants, jointly and
severally, the one
paying the others to be absolved.
HEARD
ON
:
3 & 4 March and 4 August 2009
FOR
THE PLAINTIFF
:
Adv N Van den Heever
INSTRUCTED
BY
:
Louis Benn Attorneys, Pretoria
FOR THE FIRST,
SECOND. THIRD &
FOURTH
DEFENDANTS
Adv
SS Maakane
INSTRUCTED
BY
:
State Attorney, Pretoria
DATE
OF JUDGMENT
:
5 February 2010