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[2010] ZAGPPHC 87
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Minister of Safety and Security v Beukes (A599/08) [2010] ZAGPPHC 87 (17 August 2010)
IN THE HIGH COURT OF SOUTH AFRICA
(NORTH GAUTENG HIGH COURT,
PRETORIA)
Not reportable
Case no: A599/08
DATE: 17/08/2010
IN THE
MATTER
OF:
MINISTER
OF SAFETY AND SECURITY APPELLANT
AND
HERMANUS
FREDERICK BEUKES RESPONDENT
JUDGMENT
MNGQIBISA-THUSI
,
J
INTRODUCTION
1.1 This is an appeal from the Magistrates’ Court,
Pretoria.
1.2 The appeal is against the whole
judgment and the order granted by the learned Magistrate Mr B Swart
on 7
th
May 2008.
FACTUAL BACKGROUND
2.1 The
respondent instituted an action against the appellant at the
Magistrates Court, Pretoria for unlawful arrest and detention.
2.2 The facts upon which the claim is
based are that on the 25
th
August 2006, at Deneysville, at the area of Vereeniging, the
plaintiff was arrested without a warrant by members of the South
African Police Service, one Inspector Mokhele and Mabuza who were
working within the course and scope of employment with the appellant
and detained at Vereeniging until 15h45 and released on bail of R1
500-00.
2.3 The respondent claimed a compensation of an amount
of R76 000-00, and the costs of suit.
2.4 The matter was heard on 7 May 2008, and the learned
Magistrate found the arrest to be unlawful and awarded the respondent
compensation
in the amount of R76 000-00, and costs on attorney and
client scale.
2.5 The appellant appeals against the judgment and the
order on the grounds as set out in the Notice of Appeal.
AD MERITS
4.1 The Magistrate erred in finding that the arrest was
unlawful. Police officer is authorised to arrest any person who
commits
or attempted to commit any offence in his or her presence.
See:
Section 40(1)(a)
of the
Criminal Procedure Act 51
of 1977
.
See:
Section 41(1)
read with Subsection (2)
4.2 It is submitted with respect that the following
offences were committed by the respondent:
Failure to obey the traffic sign (traffic lights).
Disregarding the rules of the road. (Stopped in the
middle of the road.)
Disobeying lawful instructions by a police officer.
Refusal to furnish the identity and or drivers licence
to the police.
See:
Section 58
of the
National Road Traffic Act no 93
of 1996
.
See:
Section 3J(1)(b)
of the
National
Road Traffic Act, s
upra
Commentary on Minimal Procedure Act
by Du Toit (Service 28, 2002) 5-15
.
5.1 It is common cause that after the respondent and
Inspector Mokhele and Mabuza met on Voortrekker Street after the
respondent
had skipped a red traffic light, the respondent fled.
5.2 The allegations by the respondent that he thought he
was to be hijacked is highly improbable.
5.3 The respondent evaded justice by fleeing
consequently continued to commit further offences.
5.4 The learned Magistrate judgment was based on an
irrelevant consideration. (Affirmative action appointments).
See: page 75 lien 10.
There is no basis why the learned Magistrate rejected
the testimony of Inspector Mokhele about the fact that he showed his
appointment
certificate card to the respondent and that he had a blue
light on his vehicle.
AD QUANTUM
7.1 The respondent did not prove R76 000-00 or argue
same, therefore the granting of the amount by the learned Magistrate
was an
error.
7.2 On comparable basis, this amount is inappropriate.
See:
The
Minister of Safety and Security v Seymour, Dennis Thomas
heard
on 2 May 2006, judgment hand down on 30 May 2006 SCA 67 (RSA).
See:
The
Minister of Safety and Security v M Tyulu,
heard
on 7 May 2009
,
delivered on 27 May
2009.
See: Liebenberg v Minister of
Safety and Security
hand
down on 18 June 2009.
See: Liu Quin Ping v Akani Egoli
(Pty) Ltd
2000 (4)
SA 68
(W)
See:
Seria
v Minister of Safety and Security
2005
(5) SA 130
(C).
AD COSTS
Despite the fact that the plaintiff did not request
costs on attorney and client scale, the learned Magistrate granted
such costs.
See: page 4 pray 3.
See: page 76 line 10.
See: A.C. Cilliers: Law of costs issue 17 paragraphs
4.09-4.10
See:
Marsh
v Odendaalrust Cold Storages Ltd
1963 (2) SA 263
(W) 269
See:
Lombard
v Minister van Verdediging
2002 (3) SA 242
(T) 247G-H.
See:
Msiza
v Director General, Department of Land Affairs
2002 (3) SA 839
(LCC) 845 F-A.
See:
Nel
v Waterberg Landhouwers Ko-operasie Vereeniging
1946 AD 597-607.
There is no justification for such order of costs. The
reasons as set out by the learned Magistrate as grounds for awarding
an
order of costs are without a foundation.
It is submitted that party and party costs are justified
under the circumstance. See: A.C. Cilliers: Law of Costs issue 20
4-22
paragraphs 4.14-4.15.
It is submitted with respect that the appeal should
succeed with costs.
___________________
M S Phaswane
Counsel for Defendant