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[2012] ZAECPEHC 56
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Marwana v Minister of Police (3067/2010) [2012] ZAECPEHC 56 (28 August 2012)
IN THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE, PORT ELIZABETH
Case no: 3067/2010
Date heard: 28-30 Nov 2011
Date delivered: 28 Aug 2012
In the matter between:
FRANCIS NOMKOLISEKO MARWANA
.......................................................
Plaintiff
vs
THE MINISTER OF POLICE
......................................................................
Defendant
JUDGMENT
SUMMARY: Plaintiff herein
sues defendant, in his vicarious capacity, for damages resulting from
unlawful arrest and detention, wrongful
and unlawful assault as well
as unauthorised entry into plaintiff’s premises. Defendant has
denied the allegations but Court
has rejected the evidence by the
defendant’s witnesses and accepted that of the plaintiff who,
in the opinion of the Court,
has been a reliable and truthful
witness.
Held that an assault
which has resulted from an unlawful arrest and detention should be
regarded as a serious violation of the plaintiff’s
right to
dignity. In the circumstances of this case plaintiff had done nothing
to merit the humiliation, shock, pain and trauma
that she has
suffered in the hands of the police in Kabega Park police station. In
such circumstances the award of damages should
merit the seriousness
of the violation of plaintiff’s rights aforesaid.
TSHIKI J:
A) INTRODUCTION
[1] Plaintiff herein is suing
defendant for the following damages:
unlawful arrest and detention
wrongful and unlawful assault
unauthorised entry.
[2] As well as consequential damages
related thereto.
[3] Defendant who is sued vicariously
has defended the action and has denied the plaintiff’s
allegations against it.
B) FACTS
[4] Plaintiff at the time of her
arrest was a domestic worker born on the 19
th
October 1963
who resides at Motherwell, Port Elizabeth. On 8 February 2010 her
employer was robbed of his property including money
and the matter
was reported to the police for investigation. Plaintiff was not on
duty on the date of the robbery. On the following
day, 9 February
2010, she reported on duty and was then arrested and detained without
a warrant by the members of the police. She
was detained at Kabega
Park police cells in Port Elizabeth about 09h00 and was only released
on 10
th
February 2010 at about 15h15. During the period of
her arrest and detention there was an occasion when the members of
the police
took her to her home for further investigation. It is
plaintiff’s contention that she never legally authorised the
police
to enter and search her premises and that during the process
of her detention the police manhandled and assaulted her by striking
her with a wooden plank and strangled her with a plastic bag. As a
result of the assault she sustained visibly injuries which were
noted
by Dr G.N. Mzayise of Motherwell Health Centre who also testified to
confirm the contents of her report in the form of the
J88, exhibit
“A”. In her evidence the doctor testified that she noted
the following injuries on the plaintiff’s
body in the form of:
[4.1] excessive bruises on the back
and upper arms;
[4.2] abrasions both wrist joints;
[4.3] bruises both knees;
[4.4] the doctor further recorded what
the plaintiff had told her that she was also strangled with a plastic
over the month and
nose such that she soiled herself with faeces.
[5] According to the plaintiff’s
evidence she was never informed of the reason for her arrest when she
was arrested by the
policeman Mr Grootboom. At that stage she had
already been informed by Joyce about the robbery at her employer’s
house although
Joyce had confronted plaintiff for having revealed
that she (Joyce) had told her about the robbery. According to the
plaintiff,
Grootboom only informed her that he was taking her to
Kabega police station and that she must not waste his time. It was at
the
police station that she was questioned by the police about the
robbery and when she denied knowledge thereof she was assaulted to
the extent that she soiled herself as aforementioned. She was
interrogated by policemen Minnie and Grootboom and when she was still
being interrogated a policeman whom Minnie and Grootboom referred to
him as the station commissioner came and told her to tell
the truth
because if she does not do so he does not know what Minnie and
Grootboom would do to her after he had left that office.
It was after
this statement that she was assaulted with the wooden plank and at
that stage the so called station commissioner had
already left.
[6] Defendant called two police
witnesses, Mbulelo Grootboom a detective sergeant and Christie
Wepener a warrant officer both stationed
at Kabega Park police
station. The effect of Grootboom’s evidence was to deny the
wrongdoing as alleged against the members
of the police force which
the plaintiff testified about. From the information he received from
the complainant in the robbery case
they decided to take the
plaintiff to the police station to question her about her involvement
in the robbery. He and Minnie decided
to detain her pending the
outcome of their investigation. Plaintiff was then detained by
Grootboom who was the investigator of
the case. Grootboom only
informed her of her constitutional rights verbally because at that
stage they had no forms which contained
those rights. Grootboom
denied all the allegations by the plaintiff against him and Minnie.
Warrant officer Wepener’s evidence
was to confirm that there
were no complaints that were lodged by the plaintiff against the
police whilst she was in detention on
9
th
and 10
th
February 2010.
D) REASONS FOR JUDGMENT
[7] I must say though that plaintiff
has impressed me as a truthful witness throughout her evidence. She
does not appear to have
been either telling lies or exaggerating her
testimony with a view to suit her case nor has she been shown to have
either lied
or misled the Court. Neither did I hear Ms Msizi to be
saying I should not believe the version of the plaintiff on the
grounds
that she has not told the truth. For instance, on page 65 of
the record she was honest enough to concede that the policemen
concerned
allowed her the opportunity to phone her family but she did
not make any call. She was also prepared to concede when it mattered.
At one stage on page 75 line 13-14 she conceded that Captain Grobler
was one of the people who entered the room where she was with
the
other policemen, but she denied that Grobler had gone to check how
the questioning was going on. According to her evidence,
Grobler went
there to instruct her to tell the truth or else he (Grobler) could
not guarantee what would happen to her if she does
not comply. She
was also prepared to concede that the police gave her the opportunity
to put on her pair of jeans.
[8] On the other hand, the evidence of
the main witness for the defendant Mr Grootboom is not consistent
with the probabilities
of the case. For instance, he has denied that
they assaulted the plaintiff yet there is proof from the doctor’s
report that
the recorded injuries are consistent with what she has
told the Court. Plaintiff was also taken from her place of work on
suspicion
of her knowledge of the robbery as a result she was
arrested and detained without a charge preferred against her. The
manner and
effect of arrest is governed by section 39 of the Governed
Procedure Act 51 of 1977 (the CPA) whose provisions are:
“
39
Manner and effect of arrest
An
arrest shall be effected with or without a warrant and, unless the
person to be arrested submits to custody, by actually touching
his
body or, if the circumstances so require, by forcibly confining his
body.
The
person effecting an arrest
shall
at the time of effecting the
arrest or immediately after effecting the arrest, inform the
arrested person of the cause of the
arrest or, in the case of an
arrest effected by virtue of a warrant, upon demand of the person
arrested hand him a copy of the
warrant.
The
effect of an arrest shall be that the person arrested shall be in
lawful custody and that he shall be detained in custody
until he is
lawfully discharged or released from custody.” (My emphasis)
[9] It therefore follows
that an arrest becomes lawful only when effected in accordance with
the provisions of section 39 above
and if the above provisions have
not been followed any subsequent detention of the arrested person is
unlawful. (
Ramphal v Minister of Safety and Security
2009 (1) SACR 211
(E)).
[10] Where, however, an
arrest is effected by a peace officer like Mr Grootboom and or Minnie
in this case the relevant provisions
of section 40 of the CPA state:
“
40
Arrest by peace officer without warrant
A
peace officer may without warrant arrest any person –
…
…
whom
he reasonably suspects of having committed an offence referred to
in Schedule 1, other than the offence of escaping from
lawful
custody.
[Only subsection (c) of
section 40 is relevant to the facts of the case under discussion and
for that reason I need not mention
the other situations where a peace
officer may arrest a person without a warrant of arrest.]
[11] There is no dispute
that the plaintiff was arrested and detained and therefore the
defendant bears the
onus
to prove the lawfulness or
justification for the arrest and detention of the plaintiff. When she
was arrested no explanation of
a charge or of whatever nature was
made to her as the reason for her arrest and neither was she told
whether or not she was being
arrested. On the evidence of Mr
Grootboom plaintiff was taken for questioning. She was never informed
of the offences of which
she was suspected of having committed. At
least none was explained to her. Instead of questioning she came out
of police detention
with injuries. When she was questioned she denied
the involvement in the commission of the robbery at her employer’s
house
and therefore could not assist the police in their
investigations. Having taken her to her home and searched it nothing
was found
from her home yet this did not persuade the two policemen
to release the plaintiff. They, instead, decided that she should
spend
the night and the greater part of the following day in custody.
[12] From what I have
heard by way of evidence I do not believe that there was any lawful
justification in the arrest and detention
of the plaintiff. She was
singularly taken to custody yet there is evidence that two of them
who work for the complainant in the
robbery case could have shared
light on the knowledge of the people who committed the robbery. In
any event, I do not believe that
the evidence that the police had at
the stage of plaintiff’s arrest and detention was sufficient
for them to arrest and detain
her for whatever reason. This in fact
is proved by the assaults they inflicted on the person of the
plaintiff. What was the reason
for the assault if they had
prima
facie
evidence of her commission of the office. There was none.
[13] It is trite law that
an arrest is
prima facie
wrongful and unlawful. It is worse
when it is accompanied by detention. One of the fundamental rights of
a human being is the right
to personal liberty and that the
lawfulness or otherwise of a person’s detention must be
objectively justified, regardless
even of whether or not he or she
was aware of the wrongful nature of the detention. (
Minister of
Correctional Services v Tobani
2003 (5) SA 126
(E)
[2001] 1
ALL SA 370
at 371f (ALL SA). There has been no such justification in
the present case. If the purpose of arresting the plaintiff had any
justification
there could have been no purpose of detaining her after
she had provided answers to the questions posed to her by the two
policemen.
This is more so when the complainant himself had informed
the police that plaintiff was not amongst the people who committed
the
robbery. On the facts of this case policemen could never have
entertained a reasonable suspicion that plaintiff was either involved
or connected with the commission of the robbery.
[14] As for the assault I
accept the plaintiff’s evidence that she was assaulted. She
could not have inflicted those injuries
on her body. It therefore
follows that the police officer Mr Grootboom is not telling the truth
to say they never assaulted the
plaintiff. The fact that she did not
make a report to warrant officer Wepener that she had been assaulted
by the police does not
necessarily mean she was not assaulted. Part
of warrant officer Wepener’s evidence is that other detainees
do not report
assaults and or ill-treatment by police officers.
[15] In
Ochse v
King Williams Town Municipality
1990 (2) SA 855
at 860F-H on
the same issue as
in casu
this Court per Van Rensburg J
remarked as follows:
“
The
right of an individual to personal freedom is a right which has
always been jealously guarded by our Courts and our law has
always
regarded the deprivation of personal liberty as a serious injury.”
[16] In the present case
the unlawful arrest and detention of the plaintiff has resulted in a
serious invasion of her constitutional
right against the invasion of
her liberty. It makes it more serious when she is assaulted with
impunity when her answers to the
questions posed to her by the
members of the defendant could not yield the desired results.
Assaulting an adult person for no apparent
reason is a serious
transgression of his or her right to dignity.
[17] In considering
quantum
sight must not be lost of the fact that liberty is one
of the fundamental rights of a man or woman in a free and democratic
society
which should be jealously guarded and protected at all times.
It is the duty of this Court to protect this right. Unlawful arrest
and detention coupled with wrongful assault constitutes a serious
inroad into the freedom and rights of an individual. [
Thandani
v Minister of Law and Order
1991 (1) SA 702
(E). See also
Ramphal v Minister of Safety and Security
supra
).
[18] As for the police
taking her to her home for searching it seems to me that at that
stage she was no longer in control of her
movements. She had been
detained questioned and then assaulted. Thereafter she was told she
was being taken to her home to search
her premises. No rights were
ever explained to her in that she was never told that she had a right
to refuse searching her premises.
Having rejected their version of
events, I am also satisfied that the police did not in law get the
necessary permission from her
to search her premises. Evidence led
proves that she had no powers to exercise her rights to refuse but
simply to obey the commands
of her captors.
[19] I am therefore
satisfied that plaintiff should succeed in all her claims.
E) AWARD
E1) UNLAWFUL ARREST AND
DETENTION
[20] Plaintiff was
detained from 09h00 on 9
th
February 2010 to 15h55 on 10
th
February 2010 about 30 hours. In my view, an award of R55 000.00
would be reasonable in the circumstances.
E2) ASSAULT
[21] This in my view is a
serious violation of the plaintiff’s rights to dignity.
Plaintiff had done nothing to merit such
humiliation, shock and
trauma. No doubt that she suffered pain which could not be justified
even by any stretch of imagination.
Before I dealt with this case, I
could not, even for a moment, comprehend as a reality in our advanced
state of constitutional
democracy, that there are policemen who are
still engaged in such clandestine conduct of assaulting detained
persons. This type
of behaviour should be viewed in a serious light
and those involved should be removed from the ranks of the police
service. In
my view an award of R90 000.00 would be just in the
circumstances.
E3) UNATHOURISED ENTRY
[22] Although the police had no right
to enter the premises of the plaintiff there is no evidence that they
had done something wrong
or anything beyond their mandate. This in my
view cannot be regarded as a serious violation of the plaintiff’s
rights when
compared to the other violations abovementioned. I am of
the view that an award of R10 000.00 would be justified in the
circumstances.
F) COSTS
[23] The question of costs is always
not an easy problem. In my view any violation of the rights of a
human being should be viewed
as serious. This is so especially the
right to dignity, privacy and more so in circumstances where the
plaintiff suffers emotional
shock, humiliation and trauma by reason
of having been assaulted by the law enforcement agents. To litigate
in the High Court with
a view to protect and enforce your rights is
not uncommon in our constitutional democracy and will always justify
the award of
costs even on the High Court scale. This is more so when
the defendant is one of the state organs who should have ensured that
the rights of the plaintiff should be respected. I have no reason to
believe that the plaintiff herein should not be awarded costs
on the
High Court scale. For that reason the costs herein shall be taxed at
the High Court scale.
[24] In the result, I make the
following order:
[24.1] Claim A – (Arrest and
detention) – the plaintiff is awarded a sum of R55 000.00
[24.2] Claim B – (Assault) –
Plaintiff is awarded a sum of R90 000.00
[24.3] Claim C – (Unlawful
entry) – Plaintiff is awarded the sum of R10 000.00
_________________________
PW TSHIKI
JUDGE OF THE HIGH COURT
Counsel for the plaintiff : Adv Frost
Instructed by : Ingram & Louis
PORT ELIZABETH
Counsel for the defendant : Adv Msizi
Instructed by : State Attorney
PORT ELIZABETH