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[2010] ZAECPEHC 42
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Hoco v Mtekwana and Another (2028/2008) [2010] ZAECPEHC 42; 2010 (2) SACR 536 (ECP) (29 June 2010)
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE – PORT ELIZABETH)
Case
No.:
2028/2008
Date
heard:
25
May 2010
Date
delivered:
29
June 2010
In the matter between:
DANIEL
MNONELELI HOCO
Plaintiff
and
INSPECTOR MTEKWANA
First
Defendant
MINISTER
OF SAFETY AND SECURITY
Second
Defendant
J U D G M E N T
DAMBUZA, J
:
This is a damages claim arising from
the arrest and detention of the plaintiff by members of the
Department of Safety and Security.
The plaintiff is
an adult male who resides at 29 Bangor Place, Kabega, Port
Elizabeth. He is self-employed, conducting a business
of trucking
services.
The first
defendant is an adult male who is a member of the South African
Police Services holding the rank of Inspector and stationed
at
Humewood Police Station in Port Elizabeth.
The second defendant is sued herein
in his capacity as the Minister of Safety and Security in charge of
the South African Police
Services.
On 13 February
2008 the plaintiff was arrested by the first defendant
at
Kabega Police Station, Old Cape Road, Port Elizabeth. He was then
detained at Humewood Police Station from 13 February 2008
to 18
February 2008, and thereafter transported by members of the South
African Police Services to Gugulethu Police Station in
Cape Town
where he was detained overnight and released on 19 February 2008.
It is common cause
that when the plaintiff was arrested and detained the members of the
South African Police Services who arrested
and detained him,
including the first defendant, were acting within the course and
scope of their duties as employees of the
second defendant.
In their plea, the
defendants plead that the arrest was lawful as the plaintiff was
arrested on a warrant of arrest issued by
a Magistrate in Athlone,
Cape Town on 11 February 2008 under Gugulethu CAS No.: 418/01/2008.
At the start of
the trial, Counsel for both parties advised me that the parties had
come to an agreement that, it being common
cause that the plaintiff
was arrested on a warrant of arrest and detained pursuant thereto,
the only issue before me was the
lawfulness of the detention from 15
February to 19 February 2008, that being the period subsequent to
the expiry of the first
48 hours after the arrest of the plaintiff.
1
In this regard the plaintiff’s contention is that from 15
February to his release on 19 February the detention was unlawful.
On the other hand, the defendants maintain that the detention was
lawful for the whole period save the 16 and 17 February.
The defendants,
having admitted the arrest of the plaintiff in their plea, bore the
onus of proof and the duty to be the first
to lead evidence. This
much is recorded in the rule 37 minute. They, however, did not
lead any evidence at the trial.
They merely closed their case.
The plaintiff then gave evidence, setting out the background to his
arrest.
His evidence was
that during January 2008, he was in Cape Town
on a visit. On his return he took his child Mninawe or Lolwethu
Matiwanie, the youngest of his three children, back to Port
Elizabeth with him. At the time, the child resided with his
maternal grandmother in Cape Town. His mother resided in
Johannesburg.
About two weeks
after
the
plaintiff returned from Cape Town, he received a message to contact
the first defendant. He phoned the first defendant who
told him
that he had visited the plaintiff’s home in connection with
the child that the plaintiff had taken from Cape Town
and that a
charge had been laid against the plaintiff in respect of that
incident. The first defendant further explained to
the plaintiff
that a warrant had been issued for his arrest and that police were
on their way from Cape Town to fetch him from
Port Elizabeth.
On 13 February
2008, the first defendant
phoned
the plaintiff advising him to go to Humewood Police Station.
Because the plaintiff did not know where Humewood Police
Station
was, it was agreed that the plaintiff and the first defendant would
meet at the Kabega Police Station. At Kabega Police
Station, the
plaintiff explained to the first defendant that he had taken the
child from Cape Town because he wanted to secure
a school for the
child, as he was not satisfied with the conditions in which the
child lived in Cape Town. The plaintiff was
arrested and taken to
Humewood Police Station where he was detained from about 12 noon on
that day (13 February 2008). At
about midday on Friday, 15
February 2008, the plaintiff enquired from police officers at
Humewood Police Station as to when he
would be taken to court, as
the 48 hour period within which he had to be caused to be brought
before a court had elapsed.
He was advised that he would only
appear in a court in Cape Town. He then remained in police
detention over the weekend and
on Monday, 18 February, the first
defendant took him out of the police cells and he was then
transported in a police vehicle
to Cape Town, together with the
child, Mninawe. In Cape Town he was detained at Gugulethu Police
cells until the following
morning (19 February) when he was
transferred to the Athlone Magistrate’s Court where he
remained for a short time until
he was released.
During argument
Mr
Menti
who appeared on behalf of the defendants, advanced the defendant’s
case as that the denial that the detention of the plaintiff
for the
days 16 and 17 February was unlawful is based on the fact that it
was impossible for the police to cause the plaintiff
to appear
before a court during these days as it was a week-end and the courts
were not in session. Further, so the argument
went, the period of
48 hours before which the plaintiff had to appear in court expired
on Friday, 15 February when the plaintiff
was still held in Port
Elizabeth. The plaintiff could not appear in a court in Port
Elizabeth as it was specified in the warrant
of arrest that he had
to appear before a court in Athlone, Cape Town. He had not yet
been transferred to Cape Town as the police
from Cape Town had not
arrived to fetch him. Hence his continued detention from Friday,
15 February until Monday morning, 18
February when he was
transferred to Cape Town. In the end, so it was argued, the
plaintiff could only appear before a court
on
19 February, when
he was in Cape Town. In this regard, the defendants rely on the
provisions of s 50(1)(d)(iii) which provide
that if the period of 48
hours expires at a time when the arrested person is outside the area
of jurisdiction of the lower court
to which he/she is being brought
for the purposes of further detention and he/she is at such time in
transit from a police station
or other place of detention to such
court, the said period shall be deemed to expire at the end of the
court day next succeeding
the day on which such arrested person is
brought within the area of jurisdiction of such court.
Firstly, there is
no evidence
to
support the submissions made on behalf of the defendants. As I
stated earlier, no evidence was led on their behalf. There
is no
explanation before me that, for some reason it became impossible for
the plaintiff to be brought before a court within
48 hours. It was
incumbent upon the police, having arrested the plaintiff, to make
arrangements that he be brought before a
court within the prescribed
period. There is no explanation why police officers from Cape Town
did not arrive in Port Elizabeth
earlier than Monday (18 February).
The evidence by the plaintiff was that, when he was arrested the
first defendant told him
that police were on their way from Cape
Town to Port Elizabeth to take him to Cape Town.
Further, th
e
contention by the defendants was never pleaded by them. I am
mindful that issues between the parties seem to have narrowed
down
subsequent to the close of pleadings. And when it became clear
that the arrest was founded upon a warrant of arrest issued
in Cape
Town, the plaintiff amended the basis of his claim to unlawfulness
of the detention after the expiry of the 48 hour period
following
the arrest. In any event, as it was submitted by
Mr
van Rooyen
who appeared on behalf of the plaintiff, the defendants’
reliance on s 51(3)(d) cannot stand as the plaintiff was not in
transit at the time of the expiry of the 48 hour period. He was
still in detention in Port Elizabeth.
My further view is
that
in
any event, the defendants’ admission that the detention of the
plaintiff on 16 and 17 February 2008 was unlawful is self-defeating
as regards to the period of detention subsequent thereto. If the
detention during this period was unlawful, I have difficulty
in
understanding how it again became lawful in respect of the period
subsequent thereto, without a fresh warrant authorising
re-arrest
and further detention.
Consequently
I
am satisfied that, the plaintiff’s detention from 12 noon on
Friday, 15 February 2008 until 19 February 2008 when he was
released, was unlawful.
As regards the
quantum, the plaintiff was in unlawful custody for almost four
days, two and a half of which he spent in police
custody at Humewood
Police Station, Port Elizabeth, one day in transit and in police
cells at the Gugulethu Police Station, and
the last few hours at
Athlone Magistrate’s Court in Cape Town.
The plaintiff’s
evidence was that on Wednesday, 13 February, he was alone in the
police cell at Humewood Police Station.
He described the cell in
which he was kept as a typical cell in a South African Police
Station which only has a toilet and
a water tap. He slept on the
floor and was given blankets to sleep with. The plaintiff remained
alone in the cell until Friday,
15 February when other people were
brought in, in connection with charges of theft of a motor vehicle.
A cousin visited him
during the time he spent in the police cells
in Humewood Police Station. There was no shower in the cell or any
other bathing
facilities, with the result that the plaintiff last
bathed prior to his arrest on 13 February and could only bath again
after
his release from police custody on 19 February 2008. He
testified that the incident left him hurt and he felt embarrassed
and
abused. His business also suffered during the period that he
was in police custody, particularly as he drives some of the trucks
himself.
Mr van Rooyen
referred
me to the
Minister
of Safety and Security v Seymour
2006
(6) SA 320
(SCA). At 325 in
Seymour’s
case,
Nugent JA held that in assessing awards of general damages, Courts
should view awards made in previous cases only as guidance
as to
what other courts have considered to be appropriate. Seymour, a 63
year old man, was unlawfully arrested and imprisoned
by the state
for a period of five days. He was awarded general damages of
R500,000.00 by the High Court. On appeal the Court
reduced the
award made by the High Court to R90,000.00.
I have
further
considered awards made in other cases by this Court in
Brander
v Minister of Safety and Security
,
Case No.: CA100/2007 (an unreported decision of the then Eastern
Cape Division, delivered on
6 December 2007), wherein an award
of R15,000.00 damages was made in respect of the arrest and
detention of an appellant overnight.
In
Minister
of Safety and Security v Tyulu
[2009]
4 All SA 38
SCA, a 48 year old magistrate was arrested and kept in
police custody overnight; damages in the amount R15,000.00 were
awarded.
In
Russell
v Minister of Safety and Security
[2009]
JOL 23425
(E) the plaintiff, a candidate attorney, was awarded
damages in the amount of R130,000.00 for unlawful arrest and
detention.
In
Slabbert
v Minister of Safety and Security
,
Case No.: 1128/2005 (an unreported decision of the Eastern Cape
Division, delivered on 13 November 2007), the plaintiff who
had been
arrested for being drunk and disorderly, was awarded damages of
R20,000.00 for continued detention in police custody
after his wife
had offered to the police to drive the plaintiff home. At para
[38] in
Slabbert’s
case
(supra)
,
Kroon J referred to guidelines set out by the authors of Visser and
Potgieter’s
Law
of Damages
,
2
nd
Ed. at p475 as to factors relevant in assessing damages to be the
following:
“
The
circumstances under which the deprivation of liberty took place;
the presence or absence of improper motive or ‘malice’
on
the part of the defendant, the harsh conduct of the defendants; the
duration and nature (eg solitary confinement) of the deprivation
of
liberty; the status, standing, age and health of the plaintiff; the
extent of the publicity given to the deprivation of liberty;
the
presence or absence of an apology or satisfactory explanation of the
events by the defendants; awards in previous comparable
cases; the
fact that in addition to physical freedom, other personality interest
such as honour and good name have been infringed,
the high value of
the right to physical liberty; the effect of inflation; and the
fact that the
action
injuriarum
also has a punitive function.”
The learned Judge
added that
Neethling’s
Law
of Personality
op cit. 130-1 adds the following factors to those listed above:
“
The
circumstances surrounding the deprivation of liberty
‘its
duration’ and the presence or absence of an apology or
satisfactory explanation. Naturally, satisfaction is increased
if
additional personality interests such as dignity and good name are
involved.”
In this case
the conduct of the police leaves an impression that they did not
appreciate the seriousness of depriving the plaintiff of his
liberty
through arrest and incarceration. It appears that they became
content in the knowledge that the accused had been arrested
and
failed to take reasonable and necessary steps to protect his
interests and to comply with the law relating to arrest and
detention. Further, I consider the embarrassment caused to the
plaintiff by being transported as a prisoner together with his
minor
child. The continued detention must have lowered the esteem in
which he was held by his child, as a father. The continued
unlawful detention further exposed him unnecessarily to the
indignity suffered in the well known squalor of prison cells. They
never explained to him why they did not bring him to Court earlier.
He was taken away from his home and business, was released
from
custody in a city hundreds of kilometres from home without appearing
in court and was left to pay for the transport back
to his home.
During argument it
was submitted by
Mr
Menti
on behalf of the defendants that in the event that I find for the
plaintiff, costs should be awarded on a magistrate’s
court
scale. This argument is fuelled by the amendment by the plaintiff
of his particulars of claim to limit his claim to only
a portion of
the period of detention that he had initially claimed for, thus
placing the probable quantum of his damages within
the jurisdiction
of the magistrate’s court. But, it was common cause at the
trial that there was an agreement between
the parties that, having
regard to the fact that the amendment was effected at a late stage
in the filing of the pleadings, the
matter would remain in the High
Court. I do agree with the submission made on behalf of the
plaintiff that, even subsequent
to the amendment of the particulars
of claim, the quantum is not far off from the jurisdiction of this
Court. It was therefore
not unreasonable of the plaintiff to
continue with the case in this Court rather than transfer to the
magistrate’s court.
In the cases referred to in paragraphs 20
and 21 above, in which damages of far less than R100,000.00 were
awarded, proceedings
were held in the High Court even though, in
most of these cases, the period for which the plaintiffs claimed was
less than in
this case. My view is that, it would not be just to
award costs, in this case, on the magistrate’s court scale.
In the result I make the following
order:
Judgment is granted
in favour of the plaintiff against the defendant in the sum of
R80,000.00 together with costs.
_________________________
N. DAMBUZA
JUDGE OF THE HIGH COURT
Appearances
:
For the
plaintiff: Adv C van Rooyen instructed D Gouws Inc. Attorneys of Port
Elizabeth
For the
defendants: Adv E Menti instructed by the State Attorney of Port
Elizabeth
1
S 50(1)
(a)
of
the
Criminal Procedure Act 51 of 1977
provides that:
“
(1)
(a)
Any person who is arrested with or without warrant for allegedly
committing an offence, or for any other reason, shall as soon
as
possible be brought to a police station or, in the case of an arrest
by warrant, to any other place which is expressly mentioned
in the
warrant.
(b)
A person who is in
detention as contemplated in paragraph
(a)
shall, as soon as reasonably possible, be informed of his or her
right to institute bail proceedings.
(c)
Subject to paragraph
(d)
,
if such an arrested person is not released by reason that─
(i)
no charge is to be brought against him or her; or
(ii)
bail is not granted to him or her in terms of
section 59
or
59A
,
he
or she shall be brought before a lower court as soon as reasonably
possible, but not later than 48 hours after the arrest.”