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[2010] ZAECPEHC 78
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Nkabi v Minister of Safety and Security (2498/08) [2010] ZAECPEHC 78 (7 December 2010)
1
IN THE HIGH COURT OF SOUTH
AFRICA
(EASTERN CAPE HIGH COURT –
PORT ELIZABETH)
CASE NO. 2498/08
In the matter between:
SIYABULELA LIVINGSTONE NKABI
...................................
Plaintiff
and
THE MINISTER OF SAFETY AND
SECURITY
…............
Defendant
_______________________________________________________
JUDGMENT
_______________________________________________________
DAWOOD J,
[1] THE CLAIM
The Plaintiff herein, Mr
Siyabulela Livingstone Nkabi, instituted an action for damages, in
the total sum of R 150 000-00, against
the Defendant claiming, inter
alia that the employees of the Defendant whilst acting in the course
and scope of their employment
unlawfully and wrongfully arrested and
detained him.
[2] ISSUES THAT ARE COMMON
CAUSE:-
(i) The parties prior to the
commencement of the trial agreed:-
a) That the Plaintiff was
arrested on the 18 December 2007 at 15h15.
b) That the Plaintiff was
detained until 21 December 2007.
c) That an armed robbery
occurred at the Ackermans store in the Ziyabuya Shopping Complex,
Kwadwesi and cellular phones were stolen.
d) That the Plaintiff was at the
Ziyabuya Shopping Complex on the day in question.
e) That the drivers of two black
Golf motor vehicles were arrested on this day.
f) That the driver of the other
Golf, in whose vehicle a toy pistol was found under the carpet of the
driver’s seat, as well
as surgical gloves and one leather hand
glove, was subsequently released.
[3] ISSUES TO BE DETERMINED
The court has to determine the
following issues:-
The lawfulness of the
Plaintiff’s arrest;
The lawfulness of the
Plaintiff’s detention immediately following the said arrest;
The lawfulness of the
Plaintiff’s detention following the expiry of the 48 hours
that is from Thursday, 20 December 2007
at 15h15 until the
Plaintiff’s release at the New Brighton Magistrate’s
court on Friday, 21 December 2007 either
at 10am as alleged by the
Defendant or 1pm as alleged by the Plaintiff.
The period for which the
Plaintiff was unlawfully detained, if any; and
The quantum of damages, if
any, to be awarded to the Plaintiff.
[4] EVIDENCE TENDERED
The Plaintiff in support of his
claim testified himself and called Sharon Noxolo Mkumatela as a
witness.
The Plaintiff,
Siyabulela
Livingstone Nkabi,
testified as follows:-
He is an unmarried 33 year old
building contractor and had been conducting business under a Close
Corporation for a period of
6 years.
On the 18 December 2007 he was
on his way to meet Noxolo Sharon Mkumatela at Kwadwesi in connection
with building a house for
her.
He stopped at the Ziyabuya
shopping complex to buy some food for his workers.
There were a total of four
occupants in the vehicle including him.
He had gone in alone to
Shoprite leaving his workers seated in the motor vehicle. He had
made his purchases and thereupon returned
to the vehicle and
proceeded to drop them off before heading towards his meeting.
He headed towards Nkwenkwe
Street and saw the police vehicle overtaking him and stopping
alongside him indicating that he should
stop. There were 3 occupants
in the police bakkie and he was pointed with rifles.
He alighted and questioned them
as to what was going on.
They requested him to lie on
his stomach and they commenced searching the vehicle while he was
lying down on the pavement.
Two of them searched the
vehicle whilst the third one was standing above him. All of them
were in possession of rifles.
The police officers informed
him that a robbery had taken place at the shopping centre; they
arrested him by handcuffing him,
at the back, in connection with the
robbery.
The police officers were not
prepared to listen to him and swore at him, when he told them that
he had an appointment at 3pm and
requested them to call the lady or
accompany him there.
His diary was in the vehicle
and the building plans were inside his diary. He never saw his diary
after that day.
He was placed at the back of
the police van and the police drove his vehicle to the Kwadwesi
Police Station.
He was taken to Ackermans at
the shopping complex in handcuffs. The store was busy and there were
lots of customers and he felt
bad and as if his dignity had been
lowered by him being paraded in front of many people. He was not
known in the area. He was
made to stand in front of the till area
and four workers were requested to identify him and they did not
identify him as one
of the robbers. He again requested the police to
release him because he was not part of what had happened but they
instead took
him to the Kwadwesi Police Station.
On his arrival at the police
station he noticed another black vehicle that looked similar to his
vehicle, stopped there and when
he was walking past, its doors were
open and he saw a firearm on the mat on the drivers side and he also
saw surgical gloves
on the floor of the vehicle. The driver of that
vehicle was also made to lie down and when that driver attempted to
talk to him
in response to his queries, that driver was assaulted by
the police officers.
He did not know the driver of
the other nor had he seen that driver before. He was thereafter
taken to Kwazakhele Police Station
after staying for approximately 2
to 3 hours at Kwadwesi Police Station.
He was refused permission to
use the telephone despite him requesting to use the phone. His phone
was taken when they locked him
in the police van.
At Kwadwesi police station he
was detained in a police cell, together with more than 10 other
persons. The toilet was not flushing
and was blocked, the blankets
were dirty and were lying on the floor.
He initially indicated that
nothing much happened in the cell except for him being bitten by
bugs and thereafter indicated that
some mischief occurred that night
including an attempted rape. He spoke to the commander who informed
him that the detective
would come that Wednesday but she only
arrived on the Thursday.
On the Thursday he as well as
the driver of the other black golf were called by the detective,
Inspector Williams, who informed
him that he was going to be charged
with robbery and detained. When he attempted to question her
regarding why he was being charged
when a firearm was found in the
other vehicle, she responded that he was not a lawyer and must not
ask her questions. She thereafter
charged him and he was
photographed by her.
He was taken to court on the
21
st
of December 2007 together with 8 or 9 other people
and they were placed in the police cells at New Brighton and their
names were
called at different times whilst his name was never
called.
He was eventually alone in the
cell and asked his name by the police officer who informed him that
the case was withdrawn and
they had made a mistake and he could
leave. He never went inside the court room. He left the building at
about 1pm and went to
his grandmother’s place to freshen up.
On the Monday he went with the documents for his vehicle to get it
released. He
spoke to Inspector Williams who said that the matter
was going to be heard and she was going to meet him again which she
failed
to do.
According to him he felt very
hurt by the incident as they stole his dignity and he subsequently
never had the same energy to
work as he did before the incident,
although he is still operating his business.
Under cross examination he
indicated that he was going to meet the Municipal Inspector at the
Galvendale Community Hall in order
to start a painting job of the
caretaker’s four bedroom house. The Municipal Inspector
informed him that he had other site
meetings so he was unable to
commence work after initially saying they did not get the job. He
confirmed that he had no equipment
to commence the job in his
vehicle and stated that a step ladder and the paint was going to be
provided and he would go and buy
paint brushes at a nearby store.
He confirmed that he signed the
notification of rights of a detained person at 16h40 on the day of
his arrest.
He indicated that at the
shopping centre his employees never left the motor vehicle because
he never saw them leaving and he had
told them to wait for him in
the motor vehicle.
He denied telling Inspector
Williams that they had gone into the shopping centre with him or
that he was lost whilst going to
his client as contained in his
statement. He indicated that the statement was not read back to him
nor was there an interpreter
present when he made his statement to
Inspector Williams.
It took him approximately half
an hour to drop off his workers.
He, for the first time under
cross examination indicated that he attempted to call Sharon whilst
he was on Nkwenkwe Street and
he was still on the phone at the time
he was stopped by the police which according to him was between
14h25 to 14h30. According
to him the police pointed rifles at him
whereas the Defendant’s version was that he was pointed with
handguns.
The police ignored him when he
told them to phone the person that he had an appointment with and
they told him that he would have
his say at the Police Station where
they were going to.
It was simply put to him that
his whole story regarding Ackermans was a fabrication and it was
later put to him that Ackermans
was closed after the robbery.
He indicated that the
registration letters and numbers of his black Golf was CYV 301 EC.
He could not recall speaking to
any police officer at the centre and saying ‘
hello police
officer, how are you?’
He disputed that the cells were
clean and indicated that he was inside there and was kept there and
those cells were dirty.
According to him the inmates
were speaking in an unknown language and they attempted to fondle
him, saying, “
here is a beautiful girl”.
He responded to a question from
the counsel for the Defendant that counsel knew even from the
newspapers that the situation changes
inside prison.
He stated that they tried to
pull him closer to them and he resisted calling out for a police
officer and they desisted without
actually fondling him.
He re-iterated that the other
suspect was assaulted in his presence and could not comment on why
the entry made pertaining to
that driver’s detention reflected
that there were no visible injuries nor any complaints.
He disputed that his arrest or
detention was lawful. That concluded his testimoney.
The next witness
Sharon
Noxolo Mkumatela,
thereafter testified.
Her testimoney was briefly
that she had a meeting with the Plaintiff on the day in question
and had confirmed their meeting
earlier that day.
She arrived at the premises
just before 3pm and waited for the Plaintiff whom she called after
15 minutes and his phone went
to voice mail and when he still had
not arrived she left at about 15h30.
He contacted her 4 days later
saying that he was arrested on the day whilst he was on his way to
her because he had a vehicle
which was the same colour as the one
suspected of having been used by the robbers.
She got very suspicious and
cancelled having the Plaintiff build a house for her. She could
not recall receiving a missed
call from the Plaintiff.
That concluded the Plaintiff’s
case.
The Defendant thereafter opened
its case and called three witnesses namely Constable Florence
Marais, Constable Lindela Glaleka
and Karen Hechter.
Florence Marais
testified as follows:-
She was a reserve constable and
according to her the Plaintiff had greeted her whilst she was in
police uniform at the shopping
centre just after 2pm saying “
hello
police officer, how are you?”
and she greeted him back.
She saw him after approximately
half an hour at the police station and he confirmed that he had just
greeted her and asked how
she was.
This was the first time that
she saw this person whilst he was inside the vehicle with the engine
switched on.
She was certain that there were
people present at the scene, who witnessed him greeting her as well
as people at the police station
who also witnessed him admitting
this.
She conceded that it was
unusual that he greeted her when he did not even know her.
Mr Lindela Glaleka
thereafter testified-
He stated that he is a member
of the South African Police Services and was doing crime
prevention duties together with his
passenger Constable Xhalisile
on the day in question.
10111 broadcasted an armed
robbery over the radio and he responded as a back up vehicle by
driving to the area of Kwadwesi.
The registration letters and
numbers that was broadcasted, was CYV 301 EC of a black golf.
He saw the vehicle as it was
coming out of the shopping centre, he did his warnings.
He confirmed with radio
control the description of the vehicle given out and they
confirmed that that was the vehicle and
he then stopped the
vehicle and they alighted, pointed the vehicle with handguns and
asked that person to get out of the
vehicle.
When they stopped this
vehicle there was another police van that assisted them in
stopping the vehicle and in handcuffing
the accused and searching
the vehicle.
He and his colleague had
handguns but it is possible that the officers in the other vehicle
had R5 rifles.
After they searched him, they
took the Plaintiff and the motor vehicle to the police station.
The Plaintiff’s rights
were explained to him and he was taken to the Kwazakhele Police
Station.
There was no identification
of the Plaintiff by another police officer at the Police Station.
Florence Marais was at the Police
Station on the day in question,
although he was not sure whether or not she was on duty.
They did not go anywhere else
on the day but rather went directly to the Police Station. He
confirmed that the cells are cleaned
and cleaners are employed
specifically to clean the cells.
He indicated that he was
involved with the Plaintiff and did not pay attention to the
occupant of the other black golf motor
vehicle or what was found
in his vehicle.
He indicated that he had a
reasonable suspicion based on the information that had been
broadcasted and the description given
and that he was accordingly
obliged to effect an arrest.
Under cross examination he
confirmed that the vehicle was being driven normally.
He confirmed that the
Plaintiff said that he had his own construction company and was
dropping off his workers and does not
know about any robbery.
He could not remember if the
Plaintiff said that he was on his way to a site to meet a client
and invited them to phone or
go to her, saying that he was only
concerned about the fact that the Plaintiff had committed a crime
and accordingly all
that he did was inform the Plaintiff that he
was arresting him for a robbery.
According to him he would not
have given the Plaintiff the right to make the phone call, because
according to the information
he received the Plaintiff was in the
company of other people and he thought that the Plaintiff was
going to call these people.
The Plaintiff switched off his
cellphone at the charge office as he was going to be detained.
According to him a number of
officers searched the vehicle and he saw some papers and a helmet
lying there but he did not
see a diary nor was that something he
was concerned with or had time for, nor did he see any building
plans or briefcase.
His primary focus was looking
for a firearm because the Plaintiff was involved in a robbery. He
denied that the Plaintiff
was taken to Ackermans.
He conceded that it was
possible that the Plaintiff told his colleague about his client
but he did not speak to the Plaintiff,
about this.
The Plaintiff was taken
directly to the Police Station.
He indicated that although
nothing linking the Plaintiff to the offence was found in the
vehicle on the information received,
the Plaintiff had dropped of
other occupants and it was possible that the firearm was with
those people.
He disputed that he would
take the Plaintiff to Ackermans stating that this was not allowed
because an identification parade
would be held by the
investigating officer later on.
He did not take the
Plaintiff’s cellphone from him but the cellphone was
switched off by the Plaintiff at the charge
office because he was
being detained. That concluded his testimoney.
The next witness called was
Karen Hechter
.
Her testimoney was that she
was employed as a casual worker at Ackermans on the day in
question.
She went to tea at
approximately 2:30pm.
When she returned from tea
she saw a big man blocking the door at Ackermans and went into
Ellerines who had also closed their
doors.
She noticed three men come
out of Ackermans and get into a black Golf.
Someone at Ellerines wrote
the registration number 301 EC on a piece of paper for her and
gave it to her.
That is all that she saw.
Ackermans was subsequently
closed and customers let out as they could not trade because of
the robbery.
Mrs Williams took a statement
from her on the same day.
That concluded her evidence
and the Defendant’s case was closed.
[5] EVALUATION OF THE EVIDENCE
I shall firstly evaluate the
evidence of the Defendant’s witnesses.
The first witness
Ms
Florence Marais
created a good impression on the court and
had no reason to mislead the court with regard to the fact that
she saw and
spoke to the Plaintiff on the day in question both at
the centre and at the Police Station.
I accordingly accept her
testimoney, which although not relevant to the issues before the
court, does have a slight bearing
on the credibility of the
Plaintiff.
Ms Hechter
also
impressed the court as a good witness and her evidence confirmed
that the information that she gave to the police
included the
description of the vehicle as a black Golf and that the
registration numbers that were written down for her
were 301 EC.
She also indicated that the
shop was closed after the robbery and customers, let out which is
contrary to the Plaintiff’s
version that the store was open
and there were customers in the store.
She was not questioned by
either counsel with regard to whether or not the Plaintiff was
brought to the store for purposes
of an identification parade or
whether or not she was requested to identify any person at the
store on the day of the robbery.
She had no reason to lie or
mislead the court and gave her evidence in a forthright and
honest manner.
I find her to be a credible
witness and accept her testimoney as true.
The arresting officer
Mr
Glaleka
was an extremely impressive witness who gave his
evidence in a frank and forthright manner.
He willingly made
concessions with regard to inter alia:-
The fact that the Plaintiff was
not allowed to make calls;
That some of the officers
present may have had R5 rifles;
That the possibility existed
that the Plaintiff had informed his colleague about the meeting;
That even if the Plaintiff had
told him this he would not have taken the Plaintiff to his client or
allowed him to call her, although
he stated that this was because
the Plaintiff had other passengers and he was afraid that the
Plaintiff may call them;
That he did not see any plans
or diary and even if he had seen these items, he would not have been
bothered about it because his
primary focus was finding a firearm;
and
That his primary concern was
arresting the Plaintiff and not listening to his version.
It was evident from his
testimoney that the description he received from the call centre
matched the description of the
Plaintiff’s vehicle and that
prior to stopping the vehicle he verified that the description
given of the vehicle
that had been involved in the robbery
matched the one of the vehicle he was about to stop.
He accordingly, based on the
information received, was satisfied that the Plaintiff’s
vehicle was the vehicle that
was suspected of being involved in
the commission of the offence.
I have no hesitation in
accepting his testimoney and accordingly accept:-
That the Plaintiff was arrested
based on information that he had received from the call centre;
That he verified the
information prior to stopping the vehicle;
That any reasonable police
officer, based on the information received and verified with the
call centre, would have effected an
arrest without a warrant since
such information would have given rise to a reasonable suspicion;
That the information emanated
from a reliable and credible source.
That accordingly his arrest of
the Plaintiff in the circumstances of this case was lawful and
justifiable;
That he took the Plaintiff
directly to the police station and not to the Ackermans; and
That there were only two
officers in his vehicle and they were armed with handguns.
The Plaintiff on the other
hand was not an impressive witness.
His explanation with regard
to why certain of his evidence was only tendered under cross
examination, inter alia, that is
that he only remembered what he
had forgotten, was just one unsatisfactorily aspect of his
testimoney.
It was agreed or common
cause that the Plaintiff was arrested at 15h15 yet the
plaintiff:-
i) Indicated that he was on his
way to a meeting that was scheduled for 3pm at the time that he was
arrested; and
ii) That he was early for his
meeting that is that he was arrested prior to 3pm.
If one accepts what was
common cause then the Plaintiff’s contention in his
testimoney in this regard is untrue, since
he was apprehended
after the scheduled time for his meeting at 3pm.
The Plaintiff was adamant
that he was taken into Ackermans whilst the store was open and
full of customers and he was paraded
in front of everyone at the
cash terminal of the store.
This evidence is disputed by
the arresting officer who denies taking the Plaintiff to the
store and by Ms Hechter who disputed
that the store was open
after the robbery.
The version of the police
officer and Ms Hechter is more probable in this regard.
The Plaintiff’s
version in this regard is highly improbable in that it would be
extremely foolish and irresponsible
for any police officer to
take a suspect into a busy shopping centre in front of a number
of customers and parade him at
the front of the store and have
people identify him there, whilst other suspects are at large and
there could be possible
danger to members of the public.
The Plaintiff’s
version seems farfetched and improbable even if the
identification of the Plaintiff at the store was
not properly
placed in dispute with sufficient particularity save for the bald
averment that it was a fabrication.
It is also highly unlikely
that a store would remain open after a robbery has just occurred
and Ms Hechter’s version
in this regard is far more
probable than that of the Plaintiff.
The Plaintiff initially said
that his only complaint with regard to the cells was the bugs and
the poor sanitary condition
and only thereafter mentioned an
attempted rape. He initially mentioned fondling but then
indicated that they just attempted
to pull him towards them.
He however for the first
time under cross-examination gave some details with regard to
this attempted rape. His testimoney
in this regard is highly
improbable particularly if one considers his version that all the
inmates were in cahoots with
each other yet by him simply
standing firm and shouting for guards they left him alone without
doing anything except attempting
to pull him towards them.
The Plaintiff’s
testimoney does not support his version that there was any
attempt to rape him.
The Plaintiff’s
appears to be fabricating or at the very least exaggerating his
experiences in the cells particularly
with regard to the
attempted rape.
The Plaintiff attempted to
convince the court that he knew that none of his passengers left
the car despite the fact that
on his version he had left them in
the vehicle unattended for at least half an hour.
He accordingly could not
have known whether or not they left the car during his absence
despite his instructions to them.
This failure to concede that
it was possible they could, without his knowledge, have left the
vehicle is a further factor
that adversely impacts upon his
credibility.
The Plaintiff’s
testimoney was unsatisfactorily and where his evidence differs
from that of the Defendant’s
witnesses, the evidence of the
Defendant’s witnesses is to be preferred.
The Defendant witnesses are
found to be far more credible witnesses and their versions far
more probable.
[6] LEGAL PRINCIPLES
I accept the argument by
counsel for the Plaintiff that the Defendant failed to dispute or
challenge inter alia the following
aspects of the Plaintiff’s
testimoney:
That the Plaintiff invited the
SAPS members to phone Ms Mkumatela to confirm the veracity of his
explanation;
That he invited the SAPS
members to accompany him to his appointment with Ms Mkumatela;
That he was only visited for
the first time by the investigating officer, Inspector Williams, a
mere hour before the prescribed
48 hour period was to expire.
That the Plaintiff’s
building plans and diary was in the vehicle at the time of his
arrest but were missing when his vehicle
was returned.
That he did not appear before a
court of law during the entire period of his detention.
That the Defendant also failed
to dispute that Ms Mkumatela had an appointment with the Plaintiff
scheduled for 15h00 on Tuesday,
18 December 2007; and that she tried
to call the Plaintiff between 15h15 and 15h30 on his cellular phone,
which was by then on
voicemail.
Counsel for the Plaintiff
accordingly argued that the Plaintiff’s testimoney with regard
to these aspects should be accepted
in light of the dictum of the
case of
President of
RSA v South African Rugby Football Union
1
.
I accept his argument in this
regard with regard to the above issues.
He argued that this would also
apply in respect of their attendance at Ackermans. I however have
already indicated that despite
this not being properly challenged
with sufficient particularity, the inherent improbabilities in this
regard render it unacceptable.
In assessing whether or not the
Plaintiff’s arrest without a warrant was lawful, I have taken
due cognisance of the provision
of the Act as well as the
authorities referred to by both Plaintiff’s and Defendant’s
counsel.
Section 40
reads
as follows: -
“
A
peace officer may without a warrant arrest any person whom he
reasonably suspects of having committed an offence referred to
in
Schedule 1.
2
The Plaintiff’s counsel
argued that:
In
Duncan
v Minister of Law and order
3
it was held that the
jurisdictional facts for a
s40
(1) (b)
defence are
that:-
The arrestor must be a peace
officer,
That the arrestor must
entertain a suspicion,
The suspicion maybe that the
suspect committed an offence referred to in schedule 1,
The suspicion must rest on
reasonable grounds, and
It is trite that the onus
rest on a defendant to justify an arrest. As
Rabie
C.J
explained in
Minister of law and
order v Hurley
4
“
An
arrest constitutes an interference with the liberty of the individual
concerned, and it thereof seems fair and just to require
that the
person who arrested or caused the arrest of another person should
bear the onus of proving that his action was justified.”
Harms D.P
in
the
Minister of Safety
v Tshei
Jonas
Sekhotos
looked at a
series of cases wherein a fifth jurisdictional fact, which if
justified, would be a requirement for a valid arrest under
section 40
(1).
He set out the dicta in
Louw
v Minister of Safety and Security
5
where Bertelsmanns said
following:
“
I
am of the view that the time has arrived to state as a matter of law
that, even if a crime which is listed in Schedule 1 of Act
51 of 1977
has allegedly been committed, and even if the arresting peace officer
believes, on reasonable grounds that such a crime
has indeed been
committed, this in itself does not justify an arrest forthwith.
An arrest, being as drastic
as an invasion of personal liberty as it is, must still be
justifiable according to the demands of the
Bill of Rights …
[P]olice are obliged to consider, in each case when a charge has been
laid for which a suspect might be
arrested, whether there are no less
invasive options to bring the suspect before the court than an
immediate detention of the person
concerned. If there is no
reasonable apprehension that the suspect will abscond, or fail to
appear in court if a warrant is first
obtained for his/her arrest, or
a notice or summons to appear in court is obtained, then it is
constitutionally untenable to exercise
the power to arrest.”
This decision was subsequent
following a series of other cases
6
.
Harms DP commenting on these
cases in the
Minister
of Safety and Security v Tshei Jonas Sekhoto
@
paragraph 22 held
:-
“
with
all due respect to the different high court judgments referred to,
applying all the interpretational skills at my disposal
… , I
am unable to find anything in the provisions which leads to the
conclusion that there is somewhere in the words a
hidden fifth
jurisdictional fact. And because legislation overrides the common
law, one cannot change the meaning of a statute
by developing the
common law.
At paragraph 24, he stated
further … Absent a finding of unconstitutionality they were
not entitled to read anything into
a clear text.
And at paragraph 25…
…It could hardly be suggested that an arrest under the
circumstances set out in section 40 (1)
(b) could amount to a
deprivation of freedom which is arbitrary or without just cause in
conflict with the Bill of Rights. A lawful
arrest cannot be
arbitrary.”
7
It is evident from the
aforegoing that all that is required is for the arresting officer to
satisfy the requirements of section
40 (1) (b) to render the arrest
lawful.
In this case the officer
furnished an explanation that the information was broadcasted over
the radio;
The officer verified the
information with the call centre prior to stopping the Plaintiff.
This was not challenged under cross
examination.
The arresting officer’s
version has already been accepted as being true and his version is
both credible and probable.
On the information that he
received from the call centre and subsequently verified with the
call centre it is evident that the
information created a reasonable
suspicion to justify an arrest without a warrant on a charge of
armed robbery.
The arresting officer’s
suspicion was based on reasonable ground and is objectively
justifiable as any other officer receiving
similar information would
have responded in a likewise fashion.
The arresting officer’s
failure to verify the Plaintiff’s version with regard to the
conduct outside the time period
of the commission of the offence
does not in the circumstances of this case detract from the
reasonableness of his suspicion
or from his reasonable belief that
the driver of the vehicle whose description had been broadcasted was
involved in the commission
of the offence.
The arresting officer’s
conduct was reasonable and his failure to effect an arrest in the
circumstances of this case would
have been a dereliction of duty and
possibly created a danger to members of the public having regard to
the dictum in the authority
referred to by counsel for the defendant
Minister of Safety
and Security v Mohofe
8
.
Furthermore the Plaintiff’s
explanation did not relate to the material time, being the time that
the robbery occurred.
If one has regard to the time
of the Plaintiff’s arrest, it does not appear to constitute a
valid explanation since he was
arrested after the scheduled time of
the meeting.
I accordingly find that the
Defendant has discharged the onus of establishing that the arrest
was lawful and justifiable without
a warrant, in terms of section 40
(1) (b).
It is evident that the
Plaintiff was detained upon him being arrested as a suspect in a
schedule 1 offence. His detention was
justified based on the
information that the police had at their disposal at the time, in
that there was sufficient information
that warranted further
investigation having regard to the fact that the description given
of the get away vehicle matched his
motor vehicle and the number
plate of his vehicle. His detention upon arrest within the 48 hours
appears to have been justified
and lawful.
The detention of the Plaintiff
within the 48 hours is accordingly found to be lawful in the
circumstances.
The Defendant’s counsel
attempted to utilise the time on the Notice of Rights in terms of
the constitution which is reflected
as 16h40 to argue that the
Plaintiff was not detained in excess of 48 hours.
There is no merit in this
argument since it is common cause that the accused was arrested at
15H15 and that he was given his notification
of rights prior to his
detention.
Section 50 (1) of the Criminal Procedure Act
provides inter alia that an accused person must be brought before a
lower court as soon as reasonably possible but not later
than 48
hours after the arrest.
The accused person must be
brought to court within 48 hours of his
arrest not detention
.
The Plaintiff’s detention beyond the 48 hours was accordingly
unlawful.
The Defendant further did not
call any witnesses to gainsay the Plaintiff’s testimoney that
the Plaintiff was released at
1pm and not 10am as had been alleged
by the Defendant.
I accordingly accept that the
Plaintiff was unlawfully detained for a period of 21 hours and 45
minutes that is from 15h15 on
Thursday, 20 December 2007 until 13h00
on Friday, 21 December 2007.
The Defendant has further
failed to establish that such detention was lawful or justified in
the circumstances.
Any adverse credibility
findings made against the Plaintiff with regard to certain aspects
of his testimoney do not detract from
the fact that his detention
beyond the 48 hours has objectively been established to be wrongful.
[7] DAMAGES TO BE AWARDED TO THE
PLAINTIFF
The issue now is what award of
damages is to be awarded to the Plaintiff, in respect of his
unlawful detention for a period of
21 hours and 45 minutes.
It was not disputed in this
case that the Plaintiff:-
Is an unmarried 32 year old
building contractor;
That he has been conducting
his own business for the past 6 years;
That he was placed in a cell
with more than 10 other inmates;
That the experience was
humiliating and degrading and upsetting; and
That it was an affront to his
dignity and his sense of personal worth.
The condition of the cells were
placed in dispute, the Defendant alleging that the cells were
regularly cleaned by cleaners whereas
the Plaintiff alleged that the
blankets were filthy, the cells had bugs in them and the toilet was
not flushing.
The Plaintiff also alleged that
there was an attempted rape upon him.
It is, as has already been
stated, when evaluating his evidence, highly improbable that a group
in excess of 10 persons who all
seemed to support each other would
have left the Plaintiff unscath if their intention was to attempt to
rape him, yet all they
did was attempt to pull him closer and all it
took was him resisting and calling out, for them to subsequently
leave him alone
for the rest of the time.
This aspect was also not
mentioned in his evidence in chief and he initially merely mentioned
that there were bugs in the cell,
and then upon further questioning
mentioned mischief and an attempted rape. His evidence with regard
to an attempted rape is
accordingly rejected and not taken into
account in assessing his damages.
He may well have exaggerated
the conditions in the cell as well. However this does not detract
from the fact that he was wrongfully
deprived of his liberty for
part of his detention and had to share a cell with in excess of 10
other unknown persons. His testimoney
to the effect that this
experience was humiliating and upsetting and an impairment of his
dignity is accepted.
A brief examination of the
amounts awarded in some other cases is warranted in order to
determine an appropriate award of damages
to be awarded to the
Plaintiff:-
In
Ramakulukusha
v Commander, Venda National Force
9
,
the Plaintiff, a 41 year old businessman and director of companies,
was detained for eight days. The Police closed his business
and
opposed bail. He was awarded R2 500 per day, which equates to a
present day value of approximately R15 000 per day.
In
Manase
v Minister of Safety and Security and another
10
,
the Plaintiff, a 65
year old, married successful businessman, was detained for 49 days.
He was awarded R1 837 per day which equates
to a present day value
of R2 500 per day.
In Olgar v Minister of
Safety and Security
it was held:
“
A just award for damages for wrongful
arrest and detention should express the importance of the
constitutional right to individual
freedom. Furthermore, it should
take into account the facts of the case, the personal circumstances
of the victim, and the nature,
extent and degree of the affront to
his dignity and his sense of personal worth. Theses considerations
should be tempered with
restraint and a proper regard to the value of
money, to avoid the notion of extravagant distribution of wealth from
what Holmes
J called the “horn of plenty”, at the expense
of the Defendant.
11
”
In
Olivier
v Minister of Safety and Security and Another
12
the court
awarded a sum of R50 000-00 where the Plaintiff was wrongfully
and unlawfully arrested and detained for a period
of 5-6 hours;
In
Louw
and Another v Minister of Safety and Security and Others
13
:
the court awarded a sum of R75 000-00 for each Plaintiff where
the Plaintiff’s were wrongfully and unlawfully arrested
and
detained for a period of 20 hours;
In Fubesi
v the Minister Safety and Security
14
unreported,
paragraph 24: the court awarded a sum of R80 000-00 where the
Plaintiff was wrongfully and unlawfully arrested
and detained for a
period of 3 days and 18 hours.
Having due
regard to all the relevant considerations and authorities and the
personal circumstances of the Plaintiff and the nature
and extent
and degree of the offence to his dignity and his sense of personal
worth, the Plaintiff is awarded the sum of R 15
000-00 for his
wrongful detention beyond the 48 hour period.
[8] COSTS
I accept that the court
attaches a great deal of importance to questions of unlawful
detention since it violates fundamental rights
of individuals.
The Magistrate Courts are
equipped and able to accord adequate protection and redress to
persons whose rights have been violated.
The nature of the dispute in
this matter was not of such a complex nature as to preclude the
Magistrate’s Court from adjudicating
upon the dispute.
The Defendant did not have a
valid defence for the detention after the 48 hours. However the
arrest and detention prior to the
48 hours, has been found to be
lawful and justified.
The Defendant accordingly is
partially successful and the Plaintiff is partially successful.
In the exercise of my
discretion in ensuring justice to both parties, the Plaintiff is
granted costs of the action however such
costs are to be awarded on
the Magistrate’s court scale.
[9] ORDER
In the circumstances I make the
following order:-
The arrest of the Plaintiff by
members of South African Police Services is found to be lawful;
The detention of the Plaintiff
within the 48 hours is found to be lawful;
The detention of the Plaintiff
in excess of the 48 hour period is found to be unlawful and
wrongful;
The Defendant is directed to
pay to the Plaintiff the sum of R15 000-00 as damages in
respect of the Plaintiff’s unlawful
detention for a period of
21 hours and 45 minutes; and
The Defendant is directed to
pay the Plaintiff’s costs of suit, on the Magistrate’s
court scale, such costs to include
the costs of the interpreter.
________________
Dawood J
Judge of the High Court
DATE
HEARD: 16 November 2010
DATE
DELIVERED: 7 December 2010
FOR
THE PLAINTIFF: Adv P. H. Mouton
c/o
UNGERER STRUWIG HATTINGH & PEO
28
Seventy Avenue
Newton
Park
Port
Elizabeth
Ref:
M Struwig/bk/NKA06
FOR
THE DEFENDANT: Adv I. DALA
Obo
The State Attorney
29
Western Road
Central
PORT
ELIZABETH
Ref:
Mr V Madokwe/2550/2008/E
1
2000
(1) S.A 1
(CC) @ 37B-6
2
S40
(1) (b) of the
Criminal Procedure Act 51 of 1977
3
Duncan
v Minister of Law order
1986 (2) S.A 805
(A)
4
1986
(3) S.A 568
(A) @ 589 E-F
[2010]
ZASCA 141
[19 November 2010]
5
2006
(2) SACR 178
(T) @ 186 – a – 187 e
6
Minister
of Safety and Security v Sekhoto
2010 (1) SACR 388
(FB)
Gellman
v Minister of Safety and Security
[2007] ZAGPHC 269
;
2008 (1) SACR 446
(w)
Le
Roux v Minister of Safety and Security
2009 (2) SACR 252
,
2009
(4) SA 491
(KZP);
Ramphal
v Minister of Safety and Security
2009 (2) SACR 291
(GSJ)
Charles
v Minister of Safety and Security
2007 (2) SACR 137
(w)
Mvu
v Minister of Safety and Security
2009 (2) SACR 291
(GSJ)
7
R
v Latimer
[1997] 1 SCR 217
par 22;
R
v Mann
2004 SCC 52
;
(2004) 3 SCR 59
; 2004 SCC par 20
8
2007
(4) S.A 215
SCA
9
1989
(2) SA 813
(V) at 849B
10
2003
(1) SA 567
(Ck) at 578 C
11
Olgar
v Minister of Safety and Security ECD 18 December 2008 (case no.
608/07) unreported, para 16 as mentioned in Tommy Peterson
v
Minister of Safety and Security ECD 23 September 2008 (case no.
1173/08) unreported at para 18
12
2009
(3) SA 434
(W)
13
2006
(2) SACR 178
14
ECD
30 September 2010 (case no. 680/2009)