About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Port Elizabeth
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Port Elizabeth
>>
2016
>>
[2016] ZAECPEHC 65
|
|
Zweni v Minister of Police and Another (2629/2013) [2016] ZAECPEHC 65 (4 October 2016)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH)
Case No. 2629/2013
Dates Heard: 28
-29July 2016,
and
1 August 2016
Date
Delivered: 4 October 2016
In
the matter between:
Sipho
Zweni
Plaintiff
and
The
Minister of Police
First
Defendant
The
National Director of Public Prosecutions
Second Defendant
JUDGMENT
MALUSI
AJ:
[1]
This is an action for damages for alleged unlawful arrest, unlawful
detention and malicious prosecution. The claim is defended
by both
defendants.
[2]
The plaintiff claims damages in the sum of R250,000.00 for unlawful
arrest on 23 September 2010 and initial detention until
his first
appearance in the Port Elizabeth Magistrates Court on 27 September
2010. He further claims damages in the sum of R200,000.00
for
unlawful detention for the period commencing when he appeared in the
lower court to 14 February 2012 when he was acquitted.
The third
claim for damages is for the sum of R250,000.00 which is based on
malicious prosecution.
[3]
The defendants admitted in their plea that the plaintiff was arrested
without a warrant. They denied that the arrest and detention
were
unlawful. They asserted that the arrest and initial detention were
justified by the provisions of section 40(1)(b) read with
section 50
of the
Criminal Procedure Act 51 of 1977
. They asserted that the
detention for the extended period was due to plaintiff being denied
bail and postponements of the case
in the course of the
administration of justice. The defendants admitted the arrest and
prosecution of the plaintiff but denied
that they acted without
reasonable cause.
[4]
Most of the evidence is either common cause or is not disputed. The
plaintiff testified that on Monday, 20 September 2010 at
about 14h00
he was off-loading tools from his van to storage at his home. Whilst
busy with this chore he called the complainant,
T.. He sent her to
buy paraffin for him at the local shop. Upon return he instructed her
to place the paraffin container on a table
in his kitchen. He gave
the child a R5 tip and as she walked out of the gate she was joined
by another child, N..
[5]
The plaintiff gave evidence that at about 17h00 on the same day he
met the two children on the way as he was driving to the
local Spar
supermarket. He gave them a lift and dropped them in a street in his
neighbourhood upon return.
[6]
The plaintiff testified that on Thursday, 23 September 2010 he was
arrested at his home. The arresting officer told him the
reason for
the arrest was the alleged rape of the complainant the previous
Monday. Nothing further was explained. His evidence
was that he told
the police of an altercation he had with a young man from his
neighbourhood. He was later detained until the following
Monday.
[7]
Under cross examination the plaintiff conceded the police were simply
performing their duty and had no ulterior motive. He denied
that he
was pointed out by the complainant at the time of arrest. He conceded
the complaint was serious and it was not unreasonable
to arrest him.
He gave convoluted evidence about the complainant being part of a
conspiracy against him.
[8]
Constable Gregory Harry is the detective who arrested the plaintiff.
He testified that he interviewed the complainant’s
mother, N.
J. and her neighbour N. N.. The complainant was interviewed by
another female officer. After written statements were
obtained from
all three witnesses, he accompanied the complainant and her mother to
the plaintiff’s house.
[9]
Harry gave evidence that plaintiff’s wife opened the door. The
plaintiff was called to the door and he informed him about
the
charge. An argument ensued between the plaintiff and his wife. He
went outside with the plaintiff. The complainant pointed
out the
plaintiff as the person who raped her. The plaintiff was arrested and
detained at Motherwell police station.
[10]
Harry said the reasons he arrested the plaintiff were that the charge
involved a schedule 6 offence; he had no authority to
issue a warning
to appear at court to plaintiff; the latter was positively identified
by the complainant; the residences of the
plaintiff and complainant
were in close proximity on the same street.
[11]
Under cross examination Harry testified that though he had decided to
arrest the plaintiff by the time he left the police station
this was
subject to the complainant identifying the plaintiff. His view was
that it was not prudent to delay the identification
of the plaintiff
by the complainant. He had compared and weighed up the written
statements and found no discrepancy with
oral statements given to
him. He did not get a warrant of arrest as the matter involved a
schedule 6 offence. He also needed to
act urgently.
[12]
Harry testified he had arrested the plaintiff so that he may be taken
to court. Another factor he had considered was is that
due to the
close proximity of the residences the community may exact mob justice
against the plaintiff.
[13]
Renerte Grobelar is 24-year veteran senior public prosecutor. She
read the docket on the morning of the plaintiff’s first
appearance in the lower court. At that time there were ten statements
in the docket. She was convinced there was a strong prima
facie case
against the plaintiff based on the statements.
[14]
Under cross examination she testified that she did not only consider
the complainant's statement and the J88 medical legal
report. She
also considered the important statement of N. who saw the
complainant with the plaintiff and the statement
of the
complainant identifying the plaintiff. She was of the view that
apparent contradictions on some aspects between the statements
were
not material as police statements are generally of poor quality. Her
view was that the alleged rape was not a once off incident
as the J88
and the statements indicated grooming of the complainant by the
plaintiff. She stated that a prosecutor could not authorize
the
release of an accused on bail in a schedule 6 offence as the court is
required to authorize such. On completion of the investigation
she
was convinced the evidence proved the plaintiff’s guilt beyond
a reasonable doubt.
Unlawful
arrest and detention
[15]
The right to freedom and security is enshrined in section 12(1) of
the Constitution and any arrest and detention of a person
amounts to
prima facie infringement of these rights. When challenged, the police
bear onus of proving that the arrest and detention
are not
wrongful
[1]
.
[16]
Section 40(1)(b) of the Criminal Procedure Act 51 of 1977 (‘the
Act”) provides for an arrest by a peace officer
without a
warrant of any person whom he reasonably suspects of having committed
an offence referred to in Schedule 1 of the Act.
In
Duncan
v Minister of Law and Order
[2]
it was held that there are four jurisdictional pre-requisites to be
established before an arrest is determined to be in accordance
with
the section. These are the following:
(i)
The
arrestor must be a peace officer;
(ii)
The
arrestor must entertain a suspicion;
(iii)
The
suspicion must be that the suspect (the arrestee) committed an
offence referred to in Schedule 1; and
(iv)
The
suspicion must rest on reasonable grounds. The introduction of a
fifth jurisdictional element has been rejected by the Supreme
Court
of Appeal
[3]
. The test whether
the police officer has a reasonable suspicion is an objective one
[4]
.
[17]
The discretion whether to arrest or not arises once the required
jurisdictional facts are present. The exercise of the discretion
by
the police officer must be rational when viewed objectively
[5]
.
[18]
Section 35(1) (d) of the Constitution provides that a person under
arrest has the right to be brought before a court as soon
as
reasonably possible but not later than 48 hours after arrest. Section
50(1) of the Act is the legislative enactment of this
Constitutional
right.
[19]
Unlawful detention does not necessarily depend upon whether the
original arrest was unlawful or not. Justification for the
detention
that follows on arrest until a detainee’s first appearance in
court continues to rest on the police
[6]
.
The unlawfulness of a detention does not cease when the detainee is
brought before a reception court, as remand orders by a Magistrate
do
not validate an unlawful detention
[7]
.
[20]
In the particulars of claim the principal attack on the lawfulness of
the arrest is predicated on the assertion that Harry's
suspicion was
not based on reasonable grounds. The following facts are the basis
for the assertion:
“
10.1.
In formulating the alleged suspicion rape murder (sic) the
members of the SAPS and prosecutors failed to take into account
contradictions between the various state witnesses;
10.2.
That there was no conclusive medical evidence confirming the charge
of rape;
10.3.
That the complainant was not a competent witness.
10.4.
In the circumstances, the said members of the SAPS and prosecutors at
all times failed to pay due regard to the logical conclusion
that
followed from the available evidence, namely that the complainant was
not raped by the Plaintiff
.”
[21]
In the alternative, it is asserted that Harry failed to exercise his
discretion properly as on the available facts "
there
was no rational need to deprive the plaintiff of his liberty pending
his first appearance in court
."
[22]
Thus, it is clear that only the fourth jurisdictional pre-requisite
for unlawful arrest at issue. There is no dispute that
Harry is a
peace officer; he entertained a suspicion; the suspicion was that the
plaintiff had committed rape which is in offence
listed in Schedule
1. The issue for decision is whether Harry's suspicion rests on
reasonable grounds.
[23]
The first assertion by plaintiff is that there were contradictions in
the statements of the three state witnesses available
at the time of
arrest. Mr Dyer, who appeared for the plaintiff, concentrated on the
discrepancy in the sequence of events and failure
to conduct further
investigations.
[24]
In my view there is no merit in the assertion. There are no material
contradictions on the first three statements except for
dates. The
contention of discrepancy is based on a misunderstanding. It takes
into account statements that were not available to
Harry at the time
he took the decision to arrest the plaintiff. The statement of N.
was taken the day after the plaintiff
was arrested.
[25]
Whether further investigation is warranted before an arrest is
effected must surely depend on the facts of each case. An objective
assessment of the three statements available indicates there were
reasonable grounds to arrest without the need for further
investigation.
N. saw the complainant in objectively
“suspicious” circumstances with the plaintiff. When the
complainant was
confronted by N. she alleged being raped by the
plaintiff on multiple occasions. Harry took the precaution of
checking the
aspect of identity by having the child point-out the
plaintiff. The statement of Jack is just a preamble on a standard
form without
making material allegations.
[26]
The requirement is that the arresting officer only has to form a
suspicion. I agree with Jones J when he said , “
This
is not to say that the information at his disposal must be of
sufficient high quality and cogency to engender in him a conviction
that the suspect is in fact guilty. The section requires suspicion
but not certainty
.”
[8]
[27]
The rest of the other basis relied upon by the plaintiff tabulated in
paragraph 20 above have no merit. They are that the facts
were known
after the arrest was effected. An objective assessment of Harry’s
state of mind and the facts he considered at
the time of arrest
ineluctably lead to the conclusion that at the time of arrest the
suspicion was reasonable.
[28]
The plaintiff asserted in his first alternative cause of action in
the particulars of claim that the arrest was malicious.
No proper
basis was alleged. Mr Dyer listed a number facts as the basis of
contending the arrest was malicious. I need not list
nor deal with
them in any detail as none of these facts raised constitute a basis
for malicious arrest. Harry stated that the sole
object for the
arrest was to bring the plaintiff to court. This justified the arrest
as not malicious. Only the object and not
the motive for the arrest
is relevant in determining malicious arrest. The claim for malicious
arrest must therefore fail.
[29]
The exercise of discretion by Harry was challenged by the plaintiff
in his particulars of claim. It has been held that once
the
jurisdictional facts are established, it is for the plaintiff to
prove that the discretion was exercised in an improper manner
[9]
.
Under cross examination by Mr Beyleveld, who appeared for the
defendants, the plaintiff conceded that it was a correct decision
to
arrest him. Nowhere in his evidence did he say the discretion should
have been exercised in his favour. By that I do not mean
I expected
him to know of the concept of discretion but at least I expected him
to provide reasons and to allege that regardless
of the suspicion he
should not have been arrested.
[30]
Under cross-examination Harry stated that discretion was "not
available" in this case because of the seriousness
of the
offence. It appears he felt compelled to arrest. But vigilant
analysis of the evidence indicates that he in fact exercised
a
discretion. His evidence indicates that he had decided to arrest the
plaintiff when he left the police station. But this decision
was to
be reconsidered by him depending on whether the plaintiff was
identified by the complainant. He clearly applied his mind
to the
facts before him. He also considered the proximity of the residences
of the plaintiff and complainant. All these facts made
him arrest the
plaintiff.
[31]
Harry may not have been aware of discretion as a concept. He struck
me as not being a knowledgeable or sophisticated police
officer. An
example is that in his 11 years experience he had never applied for a
warrant of arrest. In my view the court needs
to look at whether he
applied his mind to the relevant facts. One needs to look beyond mere
concepts but at the substance. He clearly
applied his mind before
arresting the plaintiff. His decision hinged on the identification of
the plaintiff.
[32]
I am of the view that harry was an honest and truthful witness. He
answered the questions satisfactorily. His evidence was
clear and
cogent despite his limitations outlined above. I accept his evidence
especially where contradicted by that of the plaintiff
who was not a
good witness.
[33]
I am obliged to distinguish the present matter from
Domingo
v Minister of Safety and Security
[10]
and
Qunta
v Minister of Police
[11]
.
Both these cases are judgments of Chetty J in which I concurred. The
Domingo
and
Qunta
are distinguishable from the present case on the facts. In both of
those matters it was clear no thought was given to the arrest
by the
arresting officer. The facts in this matter are quite different as
outlined above. As such I may depart from the precedent
in these two
cases.
[34]
I am satisfied that viewed objectively the decision to arrest was
rational. The reasons given by Harry for arresting plaintff
cannot be
faulted. This was a serious case with a discretionary minimum
sentence of life imprisonment. The lawfulness of an arrest,
it has
been held, is closely connected to the facts of each situation
[12]
. The evidence indicates that the arrest was justified and thus
lawful.
[35]
The initial detention of the plaintiff is on an entirely different
footing. It was foreshadowed in the particulars of claim
that the
plaintiff asserted his initial detention to be unlawful. Despite this
the defendant led no evidence whatsoever to justify
the plaintiff's
initial detention. The justification for detention after an arrest
until the first appearance in court continues
to rest on the police
[13]
.
[36]
In
Burford
v The Minister of Police
[14]
it was held that having regard to the incidence of onus it was
incumbent on the respondent to have adduced evidence to justify
the
detention. Failure to lead evidence can only result in the defendant
being liable. The same finding was reached in
Minister
of Safety and Security v Jaftha
[15]
in similar circumstances. Consequently, the first defendant is liable
for the unlawful detention of the plaintiff during
the initial period
before his appearance in the lower court.
[37]
The plaintiff asserts further in the particulars of claim that his
extended detention from 27 September 2010 when he first
appeared in
the Magistrates Court to 14 February 2012 when he was acquitted was
unlawful. The basis are that employees of the defendants
allegedly
failed to properly investigate the charges against him; failed to
inform the presiding Magistrate that the complainant
was not a
competent witness; represented that there were sufficient and
compelling reasons not to release the plaintiff on bail;
and failed
to ensure all relevant issues were considered by the Magistrate.
[38]
The detention of the plaintiff when he first appeared in the
Magistrate Court was governed by section 60(11)(a) of the Act.
It
provides:
“
(11)
Not withstanding any provision of this Act, where accused is charged
with an offense referred to–
(a)
In
Schedule 6,
the
court shall order that the accused be detained
in custody until he or she is dealt with in accordance with the law,
unless
the accused
,
having been given a reasonable opportunity to do so,
adduces
evidence which satisfies the court that exceptional circumastances
exist which in the interest of justice permit his or
her release
;”
(own emphasis).
Clearly
section 60(11)(a) authorized the detention of the plaintiff unless he
discharged an onus. It was held that this section
limits the right of
the accused to be released from detention in section 35(1)(f) of the
Constitution
[16]
.
[39]
The plaintiff instituted two applications for bail. He abandoned his
first bail application midway in the hearing. The second
bail
application was refused by the Magistrate. The applicant contends
there was no proper investigation by the police. He does
not state in
what respect. It cannot be expected of the defendant to lead evidence
about every conceivable aspect of the investigation
to rebut this
allegation. There is simply no merit in the allegation when the
factual basis has not been disclosed.
[40]
The plaintiff asserts that the defendants’ employees failed to
inform the Magistrate that the complainant was not a competent
witness. This overlooks the fact that the psychological report was
received by the defendants on 10 March 2011. The second bail
application had been concluded on 2 March 2011.The copy of the docket
was provided to the plaintiff's legal representatives on
15 April
2011. It was incumbent on the plaintiff to bring a third bail
application not the defendants. Furthermore, The report
does not say
the complainant is incompetent only that she is mildly mentally
retarded. It is the Regional Magistrate who made a
ruling that she is
incompetent. I find no merit in this assertion.
[41]
The plaintiff asserts that defendants’ employees represented
there were reasons not to release him on bail. He does not
allege in
what respect this was wrong or unlawful. The employees could not just
be supine in the bail application. They had a legal
obligation to
place evidence before court
[17]
.
I find no merit in this assertion.
[42]
The plaintiff asserts the defendants’ employees failed to
ensure the Magistrate considered all relevant issues. None
of the
"issues" are specified nor in what respect the defendants’
employees failed. There simply is no merit whatsoever
in this
assertion.
[43]
Grobelaar testified that she alone took the decision to oppose bail.
The reasons to oppose were that it is was a serious case
, a Schedule
6 offence and the State had a strong case. She was of the view that
during bail application the complainant strengthened
the State case
by placing himself on the scene. After the second hearing the
Magistrate refused bail.
[44]
I am of the view that, taking into account the evidence of Grobelaar
and the evidence in the form of the transcripts of the
bail
applications , the defendants discharged the onus on them to justify
the lawfulness of the entire period of detention. The
fact that there
was a statutory provision stipulating plaintiff must be detained
weighs in the favour of the defendants.
malicious
prosecution
[45]
The plaintiff must allege and prove following requirements in order
to succeed on a claim for malicious prosecution:
(a)
That
the defendants set the law in motion (investigated or instituted the
proceedings);
(b)
That
the defendants acted without reasonable and probable cause;
(c)
That
the defendants acted animo injuriandi; and
(d)
That
the prosecution has failed
[18]
.
The
four requirements will be considered in turn.
[46]
It appears from the evidence that the employees of the first
defendant did no more than one would expect from them. Harry and
his
colleagues received the complaint and registered it. He arrested the
plaintiff and detained him. The investigating officer
submitted the
docket to the prosecution. There is no evidence that any of the
employees of the first defendant were involved in
the decision to
prosecute. Thus, the first defendant cannot be held liable for the
prosecution.
[47]
Grobelaar testified that she alone took the decision to prosecute the
plaintiff. Clearly she set the law in motion.
[48]
Reasonable and probable cause means in this context an honest belief
founded on reasonable grounds that the institution of
the proceedings
is justified. It has to be determined by adopting both an objective
and subjective approach
[19]
.
It is not expected of the defendant to test the truth of every
possible relevant factor before initiating the prosecution.
It must
be decided on the facts of the particular case.
[49]
Grobelaar testified that she genuinely believed that the accused was
guilty of rape. She considered 10 statements in the docket
, namely
A1-A10, when taking the decision to prosecute. She considered N. 's
statement important as she saw the complainant with
the plaintiff.
The plaintiff was pointed out by complainant. The fact that the
plaintiff was with the complainant in his home at
the time of the
incident. She considered all of these facts crucial.
[50]
Grobelaar struck me as genuinely believing the plaintiff was guilty.
When discrepancy regarding sequence of events was pointed
she firmly
stated it was not a material factor. This was because the quality of
the statement was not good. She displayed a confident
and calm
demeanour throughout her evidence. She was an impressive witness.
[51]
I objectively considered whether Grobellar’s belief and conduct
was reasonable. I am satisfied that there was a prima
facie case
established in those statements. The complainant stated that she had
been raped inside the plaintiff’s house.
N. corroborated that
the complainant was inside the plaintiff’s house at the time.
The complainant was in the complainant’s
motor vehicle
according to N. . The report the complainant made to N. about
repeated rape incidents, the medico legal report
indicated rape could
not be excluded. All this evidence when considered holistically
establishes a prima facie case.
[52]
The plaintiff appeared to me to be untruthful. He could not answer
simple questions. He was visibly uncomfortable when pointedly
asked
about the charge of rape. His memory was selective in its
recollection. Where his version is in conflict with that of the
defendants’ witnesses I accept the latters’.
[53]
I am of the view that the claim of malicious prosecution has not been
proven by the plaintiff.
Quantum
[54]
A number of factors need to be considered when assessing the
appropriate quantum of damages for unlawful detention. At the
time of
arrest the plaintiff was 47 years old. He was married. He was
self-employed as a builder. He testified that the police
treated him
civilly at the time of arrest. He was in a cell with many detainees.
He described the condition of the cell as fair
except for a bad smell
from the toilet. The blankets given to him also had a bad smell. I
accept that police cells are notoriously
unsavoury in this province
[55]
The plaintiff's evidence is what hurt him the most in this arrest
detention is that that he was innocent. As apparent from
this
judgement I have serious reservations about his innocence. His claim
for unlawful detention was successful due to the defendants
not
tendering evidence.
[56]
I have considered a number of other cases of unlawful arrest and
detention as a guideline. The cases I have considered have
a marked
difference regarding the amount of damages awarded. It is trite that
this case must be decided on its own merits. In my
view an
appropriate award is R100 000,00.
[57]
In the premises the first defendant is ordered to pay the plaintiff :
(a)
R100 000,00 as damages in respect of his unlawful detention;
(b)
Interest on the aforesaid amount at the prescribed legal rate from
the date of this order to date of
final payment;
(c)
Costs of suit, as taxed or agreed, on the party and party scale;
[58]
The plaintiff is ordered to pay the second defendant’s costs of
suit, as taxed or agreed, on party and party scale.
______________________________
T.
MALUSI
ACTING
JUDGE OF THE HIGH COURT
On
behalf of the plaintiff:
Adv E Dyer
Instructed
by:
O, Brien Inc
Port
Elizabeth
On behalf of the
first and defendant: Adv A Beyleveld SC with
Adv B Naran
Instructed
by:
State Attorney
Port
Elizabeth
[1]
Zealand v Minister of Justice and Constitutional
Development and Another 2008(2) SACR 1 (CC) at para 24; Minister of
Safety and
Security v Slabbert [2010]2 All SA 474 (SCA) at para 20
[2]
1986(2) SA 805(A) at 818 9-H
[3]
Minister of Safety and Security v Sekhoto and
Another [2011]2 All SA 157 (SCA) at para 22
[4]
Woji Minister of Police [2015]1 All
SA 68 (SCA) at para 8
[5]
Sekhoto supra at para 36
[6]
Minister of Police v Du Plessis 2014(1) SACR 217
(SCA) at para 17
[7]
Minister of Safety and Security v N
Ndlovui 2013(1) SACR 339 (SCA)
[8]
Mabona
v Minister of Law and Order and Others 1988(2) SA654(SE) at 658 E-H
[9]
Sekhoto ibid at para 46
[10]
CA 429/2012)[2013] ZAECGHC 54 (5 June 2013)
[11]
CA 114/2012) [2013] ZAECGHC 53 (5 June 2013)
[12]
Minister of Safety and Security v Van Niekerk
2008(1) SACR 56 (CC) at para 20
[13]
Du Plessis
ibid
at para 17
[14]
CA 128/2015 [2015] ZAECGHC 126(10 November
2015) at para 24
[15]
CA 310/2014) [2016] ZAECGHC6 (1 March 2016
[16]
S v Dlaminietc 1999(2) SACR 51 CC at para 77
[17]
S v Branco 2002(1) SACR 531(W) at 533 F
[18]
Prinsloo and Another v Newman 1975(1) SA 481(A)
at 492 C-F; Minister of Justice and Constitutional Dev. V Modeko
2009(2) SACR
585 (SCA) at para 8
[19]
Moleko at para17