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[2010] ZAGPPHC 16
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Murrell and Another v Minister of Safety and Security (24152/2008) [2010] ZAGPPHC 16 (22 February 2010)
IN
THE NORTH GAUTENG HIGH COURT, PRETORIA
[REPUBLIC OF SOUTH AFRICA]
CASE NO: 24152/2008
In the matter between:
IAN GORDON MURRELL
SIYANANISO MASHAVA
First Plaintiff
Second Plaintiff
and
MINISTER OF SAFETY AND
SECURITY
Defendant
JUDGMENT
KOLLAPEN
A J
This is an action
for damages for wrongful arrest and detention brought by the
Plaintiffs against the Defendant ar
ising
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.
The arrest
which occurred on the 21
st
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
Most
,
if not all, of the material facts in this matter are common cause.
The 1
st
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 TCP 165 GP, 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.
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.
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
th
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.
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
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.
The question of the damages allegedly
suffered by the Plaintiffs was also placed in issue.
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
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.”
Section 36 of
the General Law Amendment Act 62 of 1955
prov
ides
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.
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 consi
dered
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?”
In
Ralekwa
v Minister of Safety and Security
2004 (2) SA 342
(T),
De Vos J alluded to a suspicion which was
‘objectively
sustainable.’
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.
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’
.
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.
In making that
assessment the following relevant information served before
Constable Mamabolo and required his critical consideration:-
The SAPS Circulation System reflected
the vehicle as being stolen.
The investigating Officer
telephonically confirmed the status of the vehicle as being stolen.
The Plaintiffs on
their own volition had approached him for assistance on the day in
quest
ion
to report a minor collision, which probably did not warrant
reporting.
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.
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.
He was able to
verify
all the information in the car hire documentation provided by the
Plaintiffs with Avo Car Rental.
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.
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.
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.
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.
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.
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.
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 whate
ver
suspicion he may have had flighty and hardly objectively
sustainable.
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.
It 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 C
riminal
Procedure Act No 51 of 1977 were satisfied.
It is accordingly
held that the arrest of both Plaintiffs on the 21
st
August 2007 l and their subsequent detention from the 21
st
August 2007 until their release on the 22
nd
August 2007 was unlawful.
The
Quantification of
Damages
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 11h40 on the 22
nd
August 2007.
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.
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.
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.
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).
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.
Reverting to the
conditions of detention that t
he
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.
What is required
is a consciousness of caring and a commit
ment
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 a
ppropriate
in the circumstances.
As a re
sult
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