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[2010] ZAGPPHC 34
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Botha v Minister of Safety and Security (17088/05) [2010] ZAGPPHC 34 (17 April 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
NORTH
GAUTENG DIVISION, PRETORIA
CASE
NUMBER: 17088/05
THEUNIS
CHRISTOFFEL BOTHA
v
THE
MINISTER OF SAFETY AND SECURITY
JUDGMENT
MABUSE
AJ
(1)
This is an action for payment of money. The plaintiff, an adult male
of Komatiepoort, Mpumalanga Province, has sued out summons
against
the defendant for payment of a total sum of R500 000, 00. His action
arises from the events of 12 August 2004 when he was
arrested at his
house in Komatiepoort by Inspector Pilusa ("Pilusa") and
Sergeant L Jacobs ("Jacobs"), both
members of the South
African Police Service and who were at all material times hereto
acting within their course and scope of their
employment with the
defendant and subsequently detained. He contends that his
aforementioned arrest and detention was unlawful
and that, as a
consequence thereof, he sustained damages.
(2)
After his arrest he was taken to Komatiepoort Police Station where he
was detained at the instance of the said police officers
for one hour
and fifteen minutes. During his aforementioned detention he was
informed that he was in detention and that he should
wait for the
members of the uniform branch of the South African Police Services
who would convey him to Low's Creek Periodica!
Court where he would
appear on the charge of assault.
(3)
Around 12h00, after waiting from 09h00, he and his then co-suspect,
Fernando YingwanefFernando") were taken in the police
van to
Low's Creek Periodical Court by two members of the South Avfrican
Police Services where on their arrival they found that
the court was
already in session. After their arrival both of them were left in the
police van by one policeman who got inside
the court building while
the other policeman remained behind with them.
(4)
After fifteen minutes the policeman who had gone into the building
returned. Fernando asked to two policemen that he wanted
to use the
bathroom and they allowed him to go to it. He too asked in isiSwazi
to be taken to the bathroom but this particular
policeman did not
respond. They immediately drove back without him having appeared in
court or taken to the bathroom or even being
informed of the reasons
for not appearing in court. They drove to another place, which to him
looked like a court building, where
the motor vehicle was again
stopped. The driver and a
woman
got out of the motor vehicle and walked around the comer of the
building. A few minutes thereafter the driver came back. Again
he
asked to be taken to the bathroom. This time the driver refused on
the basis that the plaintiff wanted to escape.
(5)
From this place the police van drove to Nelspruit and from Nelspruit
to Komatiepoort where they arrived at 17h15. Up to this
stage he had
neither used any toilet facilities nor had he been furnished with any
refreshments or water with the result that he
had become dehydrated
by the time he arrived at Komatiepoort Police Station. During the day
he was not allowed to contact his legal
representative.
(6)
At Komatiepoort he was detained with twenty seven inmates of whom
only two were white. During his detention, he was severely
assaulted
by some of his co-detainees. He was forced by his co-detainees to
take off his clothes. His arms and legs were held tight
by some
whilst simultaneously others hit him 250 times in turns with his shoe
on his buttocks for more or less thirty minutes.
As a consequence of
the said assault he was half unconscious and suffered certain wounds,
bruises and injuries.
(7)
His legal representative arrived later at the Police Station and not
only took photographs of his injuries but also arranged
that he
should be held in a separate cell. He only made his first court
appearance the following day where and when he was released
on bail
of R750, 00.
(8)
All the policemen involved in, or connected with, this matter were at
all material times acting within their course and scope
of employment
with the defendant. According to him his arrest and detention or
deprivation of liberty detention was malicious and
unlawful by reason
of the fact that there was no reasonable prospect of success in his
prosecution. The conduct of the police in
unlawfully arresting and
detaining him, amounted to a breach of his fama, dignitas self
esteem.
(9)
Whilst he was being assaulted in the police detention cells, no
policeman came to his rescue or visited the cells. He contends
that
there lay a duty on the members of the South African Police
Services
to guarantee humanity, equality, freedom and safety of all the
detainees on this particular evening. The members of the
Police
neglected their duty or did not perform their duties properly and as
a result he was detained unlawfully. If he had appeared
in court at
Low's Creek on 12 August 2004, he could have been granted bail. As a
consequence of the aforementioned unlawful arrest
and detention and
assault he has suffered damages in respect of contumelia, deprivation
of liberty, violation of his dignitas and
assault. It is for all
these reasons that he claims the sum of R500 000, 00.
(11)
The defendant admits that the plaintiff was indeed arrested and
detained by his employees, who were acting as aforementioned,
but
denies that such arrest and detention was unlawful. The defendant
contends that the poiice officer who arrested the plaintiff
had
reasonable grounds to arrest and open charges against him. He
pleaded further that his members did all that they could in
the
circumstances to ensure the safety of the plaintiff and that failure
to secure bail on 12 August 2005 was due to the plaintiff
s own
fault. The defendant denies that he is liable to pay the plaintiff
the amount so claimed or any part of it.
(12)
I now wish to deal with the evidence of the witnesses who arrested
the plaintiff and analyse the manner in which he was arrested.
It
needs to be recalled that the defendant has admitted that the
plaintiff was indeed arrested. The defendant's defence however
is
that the plaintiffs arrest was not, as claimed by the plaintiff,
unlawful.
(13)
According to the evidence of the defendant's witnesses two people
were involved in the arrest of the plaintiff at his home
at
Komatiepoort on 12 August 2004 and these were Captain Pilusa, who at
the time of the plaintiff s arrest an inspector, and sergeant
Jacobs.
It needs to be mentioned though that although they were involved in
his initial arrest. Pilusa and Jacobs were not involved
in the
plaintiff s subsequent detention, that task, in their absence, having
fallen to the police who had conveyed him to court
and the charge
office staff at the time.
(14)
This episode commenced with the plaintiff having laid a charge of
theft of his tools against some people. It continued with
the
plaintiff becoming disconsolate with the pace and the hopeless manner
in which he perceived that the police were investigating
his case.
The police went to search for the plaintiff s tools at certain places
with the plaintiff and ended up getting into some
people's houses.
Pilusa asked the plaintiff to let him speak to his informer but the
plaintiff told him that his informer was indisposed
and lying in the
hospital. Upon this report Pilusa became despondent and aborted any
further search for the plaintiff s tools,
whereupon they went back to
the Police Station where they parted ways.
(15)
On the morning of 12 August 2004, Pilusa received a report that the
person who was lying at the hospital according to the Plaintiff,
was
under arrest and had been severely beaten. He and his colleagues
went to interview that person while he was lying in the
hospital. On
their arrival, they noticed that that person had been severely beaten
and had sustained serious bodily injuries which
included fractures of
both hands. As a consequence of the report that they were given by
this person and the seriousness of the
injuries that this person had
sustained, they laid charges of attempted murder or assault with
intent to do grievous bodily harm
against the plaintiff.
(16)
Having opened the case, they decided that they were going to arrest
the plaintiff because of the seriousness of the injuries
sustained by
that person. There was another reason why he decided that he would
arrest the plaintiff and that was to prevent him
from interfering
with the injured person while he was lying in the hospital. That
morning Pilusa went to the plaintiff s place
of work or business
where he found him. He told the plaintiff that there was a case of
assault against him for which he would arrest
him and then warned him
to summons and to retain the services of his legal representative.
(17)
He had to arrest the plaintiff in order to make sure that he would
not interfere with the state witness who was lying in the
hospital.
He proceeded to arrest the plaintiff and to take him to Komatiepoort
Police Station where he took down his warning statement
and
thereafter detained him. On the same day of his arrest he arranged
that the plaintiff should be taken to court
at Low's Creek as no
court was sitting at Barberton. The court at Barberton was only going
to sit on 13 August 2004. He was hoping
that if he appeared at court
at Low's Creek on 12 August 2004, the court would release him
on
bail.
(18)
Just after 20h00 that evening Pilusa received a call from a colleague
of his who gave him a report about the plaintiff. He
was shocked to
learn from the call he received from his colleague that the plaintiff
was in detention at the Police Station as
he had thought that he had
been released at court during the day. He went to the Police Station
and visited the plaintiff in the
police cells. He found the
plaintiff in cell 4 and not in cell 7 where he should have been
placed. He noticed that the plaintiff
had sustained some injuries.
According to him, the plaintiff was assaulted in cell no. 7.
According to his knowledge, cell 7 was
for people who had committed
serious offences, while cell 4 was an exercise room. He gave an order
that the Plaintiff should not
be kept in the cell where he had been
assaulted. Raymond Nkuna is the person who had been assaulted by the
plaintiff. The plaintiff
was later convicted of assault and fined RIO
000, 00 or three months imprisonment, despite his claim, even when he
testified, that
there was no prospect, when he was arrested, that he
could be successfully prosecuted.
(19)
The question that this court is called upon to decide is firstly
whether the arrest and detention of the plaintiff was unlawful,
and
if that is the finding of this court, the quantum of damages that
should be awarded to the plaintiff; secondly, whether or
not the
plaintiff was deprived of his freedom when he was taken in a police
van from one place to another; and, if so, the amount
of damages he
is entitled to for such deprivation; thirdly, whether the plaintiff s
assault by some cell inmates had been so planned
and orchestrated by
the defendant's employees and if so, the quantum that should be
awarded to the plaintiff and finally whether
or not his dignity was
violated and if so, the amount of damages that should be awarded to
him.
(20)
It will be recalled that Pilusa has already accepted responsibility
for the arrest and detention of the plaintiff. Again it
must be
recalled that, according to the plaintiff, his arrest and detention
was unlawful because there were no prospects that,
arising from the
allegations that he had assaulted someone, he could be successfully
prosecuted. He has accepted the responsibility
further for the
plaintiff being driven from one place to another and testified that
this was done at his instance in his honest
attempts to bring the
plaintiff before court as soon as possible so that he could be
released on bail. 1 will deal with this aspect
broadly later in the
judgment.
(21)
The basic principle of our law is that where the defendant admits
arrest, there is a duty to on him prove that such arrest
was lawful.
" The onus of proving the lawfulness of the arrest and detention
rests on the first and second defendants. "
Mabona and Another v
Minister of Law and Order and
Others
1988 (2) SA 654
at page 656. in his plea the defendant insisted that
the arrest and detention of the plaintiff was lawful and the police
officers
who arrested him had reasonable grounds to arrest and charge
him.
(22)
J In the discharge of the onus that rests on him, the defendant seeks
to rely on the provisions of section 40 of the Criminal
Procedure Act
NO. 51 of i977("the CPA"),which deal with the circumstances
under which an arrest without a warrant of
arrest can be executed. It
is common cause between the parties and it is also clear from the
evidence that the arrest of the plaintiff
by Pilusa and Jacobs was
executed without a warrant. Accordingly section 40 (1) (b) of the CPA
is the relevant subsection on the
basis of which the issue should be
determined. The said section provides as follows: "40 (I) A
peace officer may without
warrant arrest any person.
(b)
whom he reasonably suspects of having committed an offence referred
to in Schedule 1 other than the offence of escaping from
legal
custody."
(23)
According to the plaintiff s warning statement, which ex facie was
completed at 08h15, the plaintiff was formally informed
that the
Police were investigating the offences of attempted murder or assault
with the intent to do grievous bodily harm against
him. Attempted
murder and assault with the intent to do grievous bodily harm are
among the offences listed in Schedule 1. At the
time Pilusa arrested
the Plaintiff, he held the rank of inspector. He was a police officer
and accordingly a peace officer in terms
of the provisions of section
1 of the CPA. At the time he testified in this case, he was a captain
in the defendant's service.
Accordingly a policeman would have acted
in terms of the provisions of Section 40 (1) (b) if he arrested
someone he suspected on
reasonable grounds of having committed either
attempted murder or assault with the intent to do grievous bodily
harm, without a
warrant.
(24)
The test employed in the determination of whether or not a peace
officer acted lawfully when he arrested someone without a
warrant is
objective. The crucial question would be whether or not the
circumstances prevailing at the time the policeman effected
an arrest
without a warrant were such that a reasonable man finding himself in
the same situation as the policeman involved would
form an opinion
reasonably that the plaintiff has committed an offence listed in
Schedule 1. The policeman shall consider the situation,
assess it and
decide objectively whether it warrants an arrest. "The test of
whether a suspicion is reasonably entertained
within the meaning
of
section 40 (1) (h) is objective (S v Nei and Another
1980 (4) SA 28
(E) at 33H). Wouid a reasonable man in the second defendant's
position and possessed of the same information have considered that
there were good and sufficient grounds for suspecting that the
Piaintiff were guilty of conspiracy to commit robbery or possession
ofstoien property knowing it to have been
stolen.
" See Mabona and Another v Minister of Law and Order and Others
1988 (2) SA 654
SECLD at 658 D-F. See also Duncan v Minister of Law
and Order
1986 (2) SA 808
(A) at 814 D-E where the court stated that:
"It
was common cause that the question whether a Police officer
reasonably suspects a person of having committed an offence
within
the meaning of section 40 (1) (b) of the Act is objectively
justiciable. And It seems dear that the test is not whether
a
Policeman believes that he has a reason to suspect, but whether, on
an objective approach, he in fact has reasonable grounds
for his
suspicion (CF Watson v Commissioner of Customs and Excise
1960 (3) SA
312
(N) at 216; R v Van Heerden
1958 (3) SA 150
(T) at 152; Wisner v.
Molomo
1983 (3) SA 151
(A) at 159." See also Le Roux v Minister
of Safety and Security and Another 2009(2) SA 252 (KZP) at page 258
paragraph 23("Le
Roux") where Madondo J stated the
following:
"Section
40(l)(b) provides that the arresting officer must have a reasonable
suspicion that the suspect has committed an offence
referred to in
Schedule 1 to the Act. The test as to whether "reasonable
suspicion " could have existed and did exist
is to be determined
by an objective standard, namely that of a reasonable man with the
know/edge and experience of a peace officer
based upon the facts and
circumstances then known to the arresting peace officer. An exercise
of power will be unlawful if the
arrester knowingly invokes the power
to arrest for a purpose not contemplated by the legislature. The
proper onus of establishing
the improper object of the arrester will
rest on the arrestee. "
(25)
I now turn to analysing the evidence of Pilusa. It is clear that on
11 August 2004 he and the plaintiff in their search for
the plaintiff
s tools and the people who had stolen them ended up visiting certain
houses. He asked the plaintiff for an opportunity
to speak to the
informer that the plaintiff had mentioned but the plaintiff told him
that the informer was lying in the hospital.
Although the reason his
Informer was lying at the hospital was clearly within the knowledge
of the plaintiff, he did not disclose
it to the Pilusa. The following
morning Pilusa received information that the very same person whom
the plaintiff had labelled an
informer and whom he wanted to
interview about the theft of the plaintiff s tools was under police
guard at the local hospital.
Even more importantly, he was informed
that the said person had been severely assaulted.
(26)
He decided that he was going to interview that person. During
cross-examination he testified further that, after he had received
the report about this person and his condition, he immediately went
to visit him at the hospital where he had been admitted. He
went to
the hospital and found the person lying in a hospital bed. He
interviewed him and, during this interview, discovered that
the
person had been so severely assaulted that he had suffered serious
bodily injuries which included fractured hands. At this
point he
decided that he had heard and seen enough and that he would open or
lay a charge of attempted murder or assault with intent
to do
grievous bodily harm against the plaintiff.
(27)
After had laid charges against him, he also decided that he was going
to arrest the plaintiff without a warrant of arrest,
mainly because
of the seriousness of the injuries sustained by Nkuna and his fear
that the plaintiff might interfere with Nkuna
while he lay in the
hospital. The reasonableness of Pilusa"s suspicion was based on
the information that he had received from
the person who had been
assaulted and his own observation of the magnitude of the injuries
that person had sustained and his fear
of the prospect of the
plaintiff s interference with a prospective state key witness. In
Mabona's case, the court stated the following
about section 40 (1)
(b):
"The
section requires suspicion but not certainty. However this suspicion
must be based upon solid grounds. " See p. 658
H.
(27)
Accordingly, it is not necessary that, before a peace officer can
arrest a person without a warrant he should be certain that
such a
person has committed an offence in Schedule 1. For the purposes of
this section it is sufficient if such a
peace
officer suspects and such suspicion is based on reasonable
grounds.
What is very important, in my view, is whether or not
Pilusa entertained any suspicion based on reasonable grounds before
he executed
the plaintiff s arrest on 12 August 2004 and, in my view,
he did. This is what Madondo J stated in Le Roux's case supra at
paragraph
24 at page 259:
"However
the arresting officer must have good and sufficient grounds for
suspecting that a suspect is guilty of the offence
for which he or
she seeks to arrest him. He must analyse and assess the quality of
the information at his disposal critically.
He must not accept it
lightly or without checking it where it can be checked. It is only
after an examination of this kind that
he must allow himself to
entertain a suspicion which will justify an arrest. See Mabona and
Another v Minister of Law and order
and others
1988 (2) SA 654(SE)
at
page 658H. However, this does not mean that the information at his
disposal must be of sufficiently high quality and cogency
to engender
in him a conviction that the suspect is guilty. Suffice to say that
the suspicion must be based on solid grounds, otherwise
it would be
flighty or arbitrary, and not a reasonable suspicion. See Cell man v
Minister of Safety and Security 2008(1) SACR 446(W)
paragraph 72 at
page 460e. "
in
my view, and this has not been challenged by the plaintiff s counsel,
Pilusa and Jacobs have satisfied the test laid down by
Le Roux.
(28)
During cross-examination, when he was asked to furnish a very good
reason for arresting the plaintiff, he specifically mentioned
that he
could not warn the plaintiff to appear at court because of the
seriousness of the offence he was suspected of having committed.
This
question seemed to suggest that
the plaintiff should not have been
arrested but could have been warned to appear at court. The
discretion to arrest or not is purely
the policeman's. He cannot be
faulted for arresting a person in circumstances where objectively
another policeman would not have
arrested the same person for the
same offence under the same factual background.
"Once
the Police Officer has formed a reasonable suspicion for the arrest
it was held in Ramakulukusha, supra that it was settled
law that the
court would be unable to interfere with a due and honest exercise of
discretion, when it was considered inequitable
and wrong. See also
Nevhutalu and Others v Minister of
Police
and Another
1986 (4) SA 822
(V) at 8S01-832B and Farisani v Miniter
of Justice and Others
1987 (2), SA 321
(V) at 325D-F. " See Le
Roux's matter at page 259 paragraph 25.
(29)
During cross-examination the plaintiff was asked why Pilusa could not
arrest him and he responded by saying that Pilusa should
have warned
him to appear at court the following day. When he was asked whether
or not he wanted special treatment, he simply said
that Pilusa should
have followed Police guidelines. It is important to state at the
outset that the letter date 9 May 2005 allegedly
sent by the then
National Commissioner had not assumed the status of law. Such
considerations as the fact that he knew the plaintiff
since 1981;
that the Plaintiff was, at the time of his arrest, a businessman and
that he knew it are, in my view, not considerations
that should
influence the reasonableness of his suspicion. After all, section
9(1) of the Constitution of the Republic of South
Africa Act 108 of
1996 provides that everyone is equal before the law. At the same time
section 9 (3) prohibits the state from
unlawfully discriminating
directly or indirectly against any one on more of the grounds set out
in the said section.
(30)
In Le Roux the court quoted with approval the following passage from
Ralekwa v Minister of Safety and Security 2004(1) SACR
131 (T) at
page 136a: 'We have moved from the past characterised by much which
was arbitrary and unequal in the operation of the
law to present and
future in a Constitutional State where the Constitution is to lead
the way from a culture of authority to a
culture ofjustification. "
By
"the Constitution" in the above passage is meant the
Constitution of the Republic of South Africa Act NO.108 of 1996.
This
is the supreme law of the country. It is interesting to note that the
said Constitution has not outlawed arrest and in fact
acknowledges
that people may be arrested. Section 35 of the Constitution provides
for arrested, detained and accused persons. St
provides as follows in
subsection (1):
"
Everyone who is arrested for allegedly committing an offence has a
right:
(a)
to remain silent;
(b) be
Informed promptly -
(I)
of the right to remain silent; and
(ii)
of the consequences of not remaining silent;
(c) not
to be compelled to make any confession or admission that could be
used in evidence against that person;
(f)
to be released from detention if the interests of justice
permit, subject to reasonable conditions. "
(31) In
S v Dlamini, S v Dladia and Others, S v Joubert, Sv Schietekat
1999(4) SA 623 CC at page 636 paragraph 6, in dealing with
the laws
applicable in bail proceedings, Kriegler J stated that:
"Section
35(l)(f) in its context, makes three things plain. The first is that
the Constitution expressly acknowledges and sanctions
that people may
be arrested for committing offences, and may for that reason be
detained in custody. The Constitution itself places
a limitation on
the liberty interest protected by section 12. The second is that
notwithstanding lawful arrest, the person concerned
has a right but a
circumscribed one, to be released from custody subject to reasonable
conditions. "
(32) In
Charles v Minister of Safety
2007 (2) SACR 137
(W) at page 144B-D, a
matter that was decided long after the current case had been
launched, Goldblatt J, as he then was, in upholding
the approach
adopted in Tsose v The Minister of Justice and Others
1951 (3) SA 10
(A) and rejecting the trend
set out in Louw and Another v Minister
of Safety and Security and Others
2006 (2) SACR 178
(TPD)("Louw"),
and by implication as followed by LeRoux, stated that:
"The
Legislature having granted a peace officer the right to make an
arrest in circumstances set out in s 40 has created a
situation where
due compliance with such section by a peace officer is lawful and
affords such peace officer protection against
an action for unlawful
arrest. In my view, the court has no right to impose further
conditions on such persons. To do so would
open a Pandora's box where
the courts would be called upon in cases of this type to have to
enquire into what is reasonable in
a variety of circumstances and
further where peace officers would be called upon to make value
judgments every time they effect
an arrest in terms of s 40. These
judgments which they would have to make would later have to be
considered and tested by judicial
officers attempting to place
themselves in the shoes of the arresting officer. "
In
Tsose's case, the court had, among others, stated that: "An
arrest is, of course, in general a harsher method of initiating
a
prosecution that citation by way of summons but if the circumstances
exist which make it unlawful under a statutory provision
to arrest a
person as a means of bringing him to court, such arrest is not
unlawful even if it is made because the arrestor believes
that the
arrest will be more harassing than the summons. For just as the bets
motive will not cure an otherwise illegal arrest...
What
1 have said must not be understood to as conveying approval of the
use of arrest where there is not urgency and the person
to be charged
has a fixed and known address; in such cases it is generally
desirable that a summons should be used. But there is
no law that
requires the milder method of bringing a person to court to be used
whenever it would be trying offence."
(33)
It is for this reason that Goldblatt did not agree with the reasoning
of the court in Louw's case and in fact rejected it on
the basis
that, according to him, it had been wrongly decided. He did not
approve the approach advocated Louw and le Roux that
it is not
sufficient to merely comply with the provisions of section 40 (1) (b)
of the CPA and that the court must look further
than due compliance
with the provisions of the said section.
(34)
I have perused the cases of Le Roux and Louw and several other
foreign cases referred to and applied in Le Roux. If anything
these
cases clearly demonstrate that each case should be decided on the
merits of its own facts. The facts of the abovementioned
cases are
clearly distinguishable from the facts of the current case. In Louw
the court acknowledged and hit the nail on the head
when it restated
the law as contained in section 40 of Act 51 of 1977. For instance it
stated the following at p183e -f:
"...in
the absence of a warrant, an arrest was iawfui only if it was
effected in terms of
s 40
of the
Criminal Procedure Act 51 of 1977
,
and if the person arrested had committed a crime listed in Schedule I
to the Act or was reasonable suspected of having committed
such a
crime. (State v. Shirinda 1984(1) SA 573T)."
(35)
I will come back to Shirinda case supra in the course of the
judgment. Suffice to mention that the court in Louw adjudged the
arrest of the plaintiffs unlawful and furnished at least four reasons
why in its view such arrest and detention was unlawful. In
a word the
reasons that the said court gave are the following:
"...the
real reason for the arrest was a desire on his part (referring to
Sergeant De Beer) to teach the plaintiffs a lesson
for their
allegedly unacceptable behaviour toward the Badenhorsts. 'See p
183J-184 b; secondly, the police officer who arrested
the plaintiffs
acted with malice:
"The
fact that De Beer and his colleagues acted with malice Is further
evidenced by his failure to acquaint himself with the
content of Mr
Badenhorst's statement, which records no accusation of theft at all.
'See p 184a-b; thirdly, that there was no facie
that an offence
listed in the First Schedule had been committed:
"Had
he stopped to consider what the Badenhorsts told him, he would have
known that there was no prima facie case of the commission
of a crime
contained in the First Schedule. "See p 184 b-c; lastly and
fourthly, because of the fraudulent action of the Police
in the
relevant case docket:
'Worse
was to come. The Police docket was, sometime after the arrest,
interfered with in a fraudulent fashion, "see page
I84j-f
(36)
The reasons mentioned above might not have been the only ground that
the court took into account in the determination of whether
or not
the plaintiffs' arrest and detention in Louw was unlawful but they
nevertheless show a clear distinction from the current
case.
Furthermore I agree that, based on the facts of the Louw's case, the
arrest and detention of the plaintiffs in that case
was unlawful and.
for that reason, I would agree with the Court's finding in that
particular matter.
(37)
In State v Shirinda 1986(1) SA 573 SA (T) the issue involved was
whether a traffic officer could effect an arrest in terms
of the
provisions of section 40 of the CPA. The court found that section 40
of the said Act provided that a person could only effect
such an
arrest if he was a "peace officer" in terms of the
provisions of section 334 of the said Act.
(38)
The court found that a traffic officer was not a ''peace officer"
and he did not have the powers vested in a peace officer
by the
provisions of section 40 of the Act to effect an arrest without a
warrant. As this authority dealt essentially with the
question who
can effect an arrest in terms of section 40 of the CPA, it is not of
any assistance to the current matter in the light
of the fact that,
in the current matter, it is not in dispute that both Pilusa and
Jacobs were peace officers at the time of the
arrest and detention of
the plaintiff.
(39)
In R v Waterfield; R v Lynn
(1964) QB 164
(CCA)
(1963) 3 All ER 659.
This
case quintessential^ demonstrates that each case should be decided on
the merits of its own facts. It is important that a principle
should
be understood within the context of the facts of the matter in which
it was uttered. In my view, there must be a relevant
connection
between the facts of the case and the principle relied upon. The
principle must be supported by the facts of the case.
The facts of
the Waterfield and Lynn case are aptly encapsulated in the following
paragraph:
"in
the Judgment of this court it would be difficult, and in the present
case it is unnecessary, to reduce within specific
limits the general
terms in which the duties of police constables have been expressed.
In most cases it is probably more convenient
to consider what the
police constable was actually doing and in particular whether such
conduct was prima facie an unlawful interference
with a persons
liberty or property, if so, it is then relevant to consider whether
(a) such conduct falls within the general scope
of any duty imposed
by statute or recognised at common law and (b) whether such conduct
albeit within the general scope of such
a duty, involved an
unjustifiable use of powers associated with the duty. "See
p.66lC-H
(40) The
court found that the arrest of Waterfield and Lynn was unlawful by
reason of the fact that:
"...
for the purposes of the present appeal it is sufficient to say that
in the view of this court the two police constables
were not acting
in the due execution of their duty at common law when they detained
the motor vehicle. "Seep.662D
That
they were not acting in due execution of their duties when they
detained the car is ably demonstrated by the following passage:
7/7
present case it is plain that the police constables Willis and Brown,
no doubt acting in obedience to the orders of their superior
officer,
were preventing Lynn and Waterfield taking the car away and were
thereby interfering with them and with the car. is to
be noted that
neither of the appellants had been charged nor was under arrestand,
accordingly, the decision In Dilon v O'Brien
and Davis (10) does not
assist the prosecution. It was contended that the two police
constables were acting in execution of a duy
to preserve for use in
court evidence of crime, and in a sense they were, the execution of
that duty did not in the view of this
court authorise them to prevent
removal of the car in the circumstances,"(my own underllning)See
p. 662B-C
(41) Accordingly,
1 am of the view that the case does not assist the plaintiff s case.
The facts of this case are clearly distinguishable
from the current
case.
Lastly the court stated in the Waterfield case that:
In
the course of argument instances were suggested where difficulty
might arise if a police officer were not entitled to prevent
removal
of an article which had been used in the course of a crime, for
example, an axe used by a murderer and thrown away by him.
Such a
case can be decided if an when t arises; for the purposes of the
present appeal it is sufficient to say that in the view
of this court
the two police constables were not acting in the due execution of
their duty at common law when they detained the
car." See
p.662C-D
This
is the basis on which the court in the Waterfield case decided that
the arrest of Lynn and Waterfield was unlawful.
(42)
In conclusion I have no doubt about the correctness of the approach
in Charles' case and would be too slow to differ from it.
On the
facts of this case, I am unable to find that the arrest and detention
of the plaintiff by the defendant's employees was
unlawful.
(43)
I now wish to turn to the plaintiff s complaint that, because he was
kept in a police van and taken from one place to another,
he had been
deprived of his liberty. In the first place, once this court reaches
a conclusion that he was lawfully arrested, it
follows automatically
that his detention was also lawful. Of course it goes without saying
that the consequences of lawful arrest
are the deprivation of
liberty.
(44)
There is however more to the plaintiff s deprivation of liberty than
meets the eye. Because Pilusa knew the plaintiff well
and also knew
the fact that the plaintiff was a businessman and. furthermore,
because he had no objection to the plaintiff being
released on bail
on the same day of his arrest, he arranged that the plaintiff be
taken to court at Low's Creek for that purpose.
Here I wish to pause
and to regurgitate the provisions of section 50 (1) (a) of the CPA
which provides that:
"Any
person who is arrested with or without a warrant for aiiegediy
committing an offence, or for any other reason, shail as
soon as
possible be brought to the Police station, or in the case of an
arrest by warrant, to any other place which is expressly
mentioned in
the warrant. "
(45)
It is unfortunate that the public prosecutor at Low's Creek
Periodical Court decided against
taking
the case. It is clear however that it was late already. The public
prosecutor's refusal to take the case meant that the plaintiff
had to
be conveyed back to Komatipoort Police Station where he had to be
detained without having appeared in court.
(46)
It has not been suggested by counsel for the plaintiff that the
plaintiff, who was under arrest, could have been left freely
to
travel in any transport other than the Police transport from
Komatipoort Police Station to Low's Creek Court and back to
Komatipoort
Police Station. For as long as he was under arrest he was
always in the custody of the Police and they alone were responsible
for
conveying him from one place to another. This obviously means
that his movement had been lawfully restricted following his lawful
arrest and genuine attempts to bring him before court.
(47)
Again it must be recalled that Michael Mashaba was called by his
commander, withdrawn from his shift or what he was doing at
the time
or busy with at the time and instructed to convey the two suspects,
one of whom was the plaintiff to Low's Creek Periodical
Court where
he only arrived between 13h20 and 13h30. On his arrival he found that
the court was still or already busy. He waited
for it to adjourn and
during adjournment, approached the public prosecutor with the docket
and spoke to him about the docket and
the two suspects he was
conveying. The public prosecutor told him that, as they would be
holding court at Komatipoort the following
day. they should drive
back
with both the docket and the suspects and bring them back to court
the following day at Komatiepoort. The plaintiff admitted
during
cross-examination that no time was wasted in taking him to court.
This was in contrast to the statement put to Mashaba by
plaintiff s
counsel that Mashaba wasted time in town before proceeding to Low's
Creek Periodical Court.
(48)
Section 35 (1) (e) of the Constitution states that:
"35(1)
everyone who is arrested for allegedly committing an offence has the
right-
(d)
To be brought before a court as soon as reasonably possible, but not
later than 48 hours after his arrest. " It is clear
that Pilusa
tried his best to bring the plaintiff before Court as soon as
possible. It is not his fault that the public prosecutor
was not keen
to accept the docket because it was brought to him late. In my view,
there were justifiable grounds for depriving
the Plaintiff of his
liberty and the complaint that the Plaintiff was deprived of his
liberty under these circumstances is
without
any merit. Moreover Pilusa has complied with the provisions of
section 35 (1) (d) of the Constitution. A person cannot complain
about being deprived of his liberty where a law requires that he be
deprived of his liberty or whilst there is justification for
such
deprivation.
(49)
It is not in dispute between the parties that in the evening of 12
August 2004 the plaintiff was detained in cell 7 of the
Komatipoort
Police Station and that while he was in that particular cell, he was
severely assaulted, with his own shoes by other
cell inmates; nor is
it in dispute that as a consequence of the said assault he sustained
certain bodily injuries. What needs to
be investigated however is
firstly the reason why he was kept in cell 7 where he was assaulted
and secondly why he was assaulted
while he was in cell 7.
(50)
It will be recalled that Pilusa testified that he was surprised when,
during a telephone conversation he had with a colleague
of his just
after 20h00 on 12 August 2004, it was reported to him by his
colleague that the plaintiff was in the cells and furthermore
that he
had a complaint. He was stunned to learn that the plaintiff was in
the cells because he had thought that he had been released
on bail
during the day.
(51)
He drove to the Police Station where, on his arrival he was taken to
the Police cells. In cell 4 he found the plaintiff and
interviewed
him in there. During this interview the plaintiff complained to him
that he had been assaulted in cell 7. He gave instructions
that the
plaintiff should be kept out of celt 7 which he described as a cell
in which people who had committed serious offences
were kept. He did
not indicate what a serious offence could be nor did he give any
example of such.
(52)
It is obvious from the aforegoing that although Pilusa was tasked
with the investigation of the
criminal
case for which the plaintiff had been arrested and detained at the
police cells, he had no control over where detainees
were placed.
There is also no suggestion that he was involved in any manner with
the placing of inmates in the police cells.
In fact he testified,
during cross-examination, and this was not challenged, that it was
the duty of the C.I.D., whatever that
means, to place people in the
cells. During his examination- in- chief the plaintiff testified that
whilst he was in the cells
no policeman visited the cells and
furthermore no policeman came to his rescue. This version seems to be
inconsistent with the
facts of what happened in the cells. If the
plaintiff was placed in cell 7 initially, he must explain how he
happened to be in
cell 4 where Pilusa found him, if he was not put
there by a policeman. He could only have been removed from cell 7 to
cell 4 by
a policeman who gone to visit the cells.
(53)
Stanley Pumulane Makwenyane's ("Makwenyane") evidence that
he visited the cells at 20h50 has not been challenged,
it will be
recalled that he testified furthermore that as soon as he walked into
cell 7 to check, the plaintiff complained to him
that he had been ill
treated. He told him that he had been assaulted. He then took him out
of cell 7 and put him in a cell or place
where there was nobody. In
the premises the plaintiff s evidence that no policemen visited the
cells and that no Policemen came
to his rescue while he was in the
cells could not have been correct. Makwenyane also testified that he
could hear the noise in
the cells and that accounts for the reason he
visited the cells.
(54)
While there is a duty on the defendant to prove that the arrest of
the plaintiff was lawful, there is a duty on the plaintiff
to prove
that he was deliberately or purposely put in that particular cell so
that he could be assaulted. The plaintiff was put
in there where any
arrested person, especially adult males had been kept as there was no
other cell in which the plaintiff could
be detained. In my view, the
plaintiff has failed to prove that he was purposely put in that cell
to be assaulted and that this
assault on him by his co-detainees was
orchestrated by the employees of the defendant.
(55)
The Plaintiff s claim that he was denied the opportunity to go to the
toilet seems doubtful. The evidence tendered in support
of this claim
is tenuous and inconsistent. According to the plaintiff, this
evidence relates to what happened at Low's Creek Periodical
Court
after the driver of the Police van had come back from the court
building, and when he and Fernando Ngwani ("Fernando"),
his
witness, asked to be taken to the toilet. Fernando was allowed to go
to the toilet but he was not. In fact, according to him,
when he
asked the Policemen for permission to go to the toilet they just
kept
quiet and as a result was never taken to the toilet. On Fernando's
return from the toilet the police put him ("Fernando")
in
the back of the van and thereafter drove away.
(56)
Fernando, on the contrary, testified that at Low's Creek Periodical
Court both of them were let out of the back of the motor
vehicle.
Some gates were opened by the police to let them through but he alone
was taken to the toilet. He left the plaintiff standing
somewhere in
the building while he alone went to the toilet. Under
cross-examination Fernando was asked whether he heard the plaintiff
asked the police to let him to go to the toilet. His response was
that he did not hear the plaintiff ask to be left to go to the
toilet
because both of them were let out to go to the toilet. He
never heard the plaintiff asked for food or water. It needs to be
said though that Fernando did not make a good impression as a
witness. To say the least he seemed to confuse the events he
testified about, was evasive in his response to some of the material
questions put to him and became impatient at times with defendant's
counsel while he did not demonstrate the same characteristics
with
plaintiff s counsel.
(57) In the premises, it would seem
that there is no merit in the plaintiff s claim that he was denied an
opportunity to go to the
toilet and also to have meals or water on
that particular day. On the whole I am not satisfied that the
plaintiff has discharged
his onus in respect of the claims in respect
of which the duty lies on him. The basic principle of our law with
regard to the burden
of proof is that he who alleges must prove. A
classical application of this principle was clearly illustrated in
Pillay v Krishna
and another
1946 SA 946
AD at page 951 where Davis
A.J.A., as he then was. stated that:
"It consequently becomes
necessary at the outset to deal with the basic of rules which govern
the incidence of the burden of
proof - the onus probandi - for upon
them the decision of this case must ultimately rest.
And
it shouid be noted immediately that this is a matter of substantive
law and not a question of evidence; Tregea and Another
(1930. A. P.
16
at page 32). The first principle in regard to the burden of proof
is thus stated in the Corpus Juris: "semper necessitas proband!
incubit illi qui agit" (D.22.3.21). if a person claims something
from another in a Court of law, then he has to satisfy the
Court that
he is entitled to it. " He continued at Page 952 and stated
that: "He who asserts, proves and not he who denies,
since a
denial of fact cannot naturally be proved provided that it is a fact
that is denied and that denial is absolute."
(58) Now, turning to the evidence of
the plaintiff, it is, in my opinion, riddled with improbabilities and
inconsistencies. It is
clear that according to him he found arresting
him to be abominable simply because he had wanted special treatment,
even though
he denied this statement, because
he
was a businessman and known to the Police in that area. When he did
not get this treatment he labelled his arrest unlawful.
(59)
He gave no valid reasons why he could not be locked in cell 7 or why
he could not be locked in the same cell as the other people.
He
unjustifiably accuses the Police of having deliberately put him in
cell 7 so that he could be assaulted and humiliated. There
is nothing
in the evidence to suggest that the Police who put him in the cells
were deliberate in putting him there so that he
could be assaulted.
He relied on it being common knowledge that such events occurred
periodically or from time to time at Komatiepoort
Police Station.
This is not conclusive proof of any planned act on the part of the
Police to put him where he could be assaulted.
His evidence that no
Policeman came to the cells or no Policeman visited the cells while
he was in cell 7 has been proved to be
untruth and a clear figment of
his imagination-Over and above that it is inconsistent with the
proven facts of the case.
(60)
His complaint that he was never given food and water sounds hollow.
There is in my view nothing to suggest that if he had asked
for water
and food the Police would not have provided him with same. He
certainly did not expect the two policemen who were in
his company to
know that he wanted water or food if he did not ask for water and
food, nor did he expect them to provide him with
water and food
bought of their own money.
In
the premises, the whole of his evidence leaves much to be desired
and, in my view, his claim cannot succeed. Accordingly I make
the
following order:
"The
plaintiff s claim is dismissed with costs".
P.M.
MABUSE
ACTING
JUDGE OF THE HIGH COURT
Appearances:
Plaintiffs
Attorneys: De Swardt VogelMyambo
Instructed
by Piet Van Dyk Inc;
Plaintiffs
Counsel: . P.Kemp
With
him Adv. Hein rich sen
Defendants
Attorneys: The State Attorney
D
efendant's
Counsel: Adv. G B Botha
Date
Heard: 2009 November 16-23
Date
of Judgment: 2010 April 17