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
>>
2017
>>
[2017] ZAECPEHC 25
|
|
Kammies v Minister of Police and Another (3670/2011) [2017] ZAECPEHC 25 (18 April 2017)
IN THE HIGH
COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH)
CASE
NO.: 3670/2011
In
the matter between:
WILLIAM
KEVIN KAMMIES
Plaintiff
And
THE
MINISTER OF
POLICE
First Defendant
THE NATIONAL DIRECTOR OF PUBLIC
PROSECUTIONS
Second Defendant
JUDGMENT
BESHE
J:
[1]
This matter concerns three claims for damages under the following
heads:
A.
Wrongful and unlawful alternatively malicious arrest and detention.
B.
Continued detention.
C.
Malicious prosecution.
Plaintiff’s
claims arise out of his arrest on the 26 February 2010 at Voisen
Road, Gelvandale in Port Elizabeth. It is common
cause that he was
then detained at Kabeka Park Police Station until the 1 March 2010 on
which day he appeared in the Magistrate’s
Court Port Elizabeth
on a charge of housebreaking. Claim B is founded on plaintiff’s
further detention following his appearance
in court whereupon he was
remanded in custody until his release on the 21 March 2010. Claim C
is based on the assertion that plaintiff’s
prosecution, which
was set in motion by members of first defendant and or second
defendant, was malicious and without reasonable
cause and effected
animo iniuriandi
.
[2]
In their plea, defendants admit that the plaintiff was arrested on
the 26 February 2010 without a warrant. Defendants however
deny that
the arrest was unlawful. They claim that the arrest was in terms of
Section 40
(1) (b)
of the
Criminal Procedure Act 51 of 1977
in that there was a reasonable suspicion that the plaintiff had
committed or attempted to commit a
Schedule
1
offence.
[3]
Recounting the events that led to his arrest, plaintiff testified as
follows:
At
about 9h15 on that day he was invited to
Ms
Dick’s
house
who in turn asked him to fetch her daughter from Mercantile Hospital.
In order for him to do this,
Ms
Dirk
provided him
with keys to a Grey Toyota Conquest motor vehicle. He told
Ms
Dirk
he will first
go to his house to have breakfast.
Ms
Dirk’s
son
Morné
came
along with him.
Morné
suggested that he drives to
Hermanus
Johnson’s
place to pick up something whilst plaintiff is having breakfast. He
indeed drove in his mother’s vehicle leaving plaintiff
behind.
Morné
came
back at about 11h15 with two others,
Clifford
and
Hermanus
.
He also got into the car and dropped
Morné
and
Hermanus
at
Morné’s
girlfriend’s place. He arrived at the hospital at ±
12h00. It took him a while to find
Ms
Dirk’s
daughter. He then drove back to
Ms
Dirk’s
house
with the latter’s daughter. He found
Morné
,
Clifford
and
Brian
drinking
and smoking at the
Dirk
household. He joined them. Later they drove to Tra’s Tavern to
get more drinks. There the police surrounded their car and
arrested
all five of them who were in the car, those being the plaintiff,
Morné
,
who was the driver at the time,
Clifford
,
Brian
and
Hermanus
.
Police demanded firearms and advised them that they were arrested in
connection with a housebreaking and theft charge.
[4]
Plaintiff testified that he felt humiliated and embarrassed because
the arrest was witnessed by many people. They were placed
in a police
van and driven in a convoy of police cars.
[5]
Constable Magre Toring
testified in support of defendants’
case. His evidence, briefly stated was as follows:
At
about 13h30 on the day in question, he received information relating
to a motor vehicle that was involved in a housebreaking
incident in
the Sherwood area. During the course of following up on the
information he proceeded to a house in Voisen Street, Gelvandale.
He
spotted the car whose description he had with five occupants. He
called for backup and all five occupants of the vehicle were
arrested. It is common cause that plaintiff was one of the five
occupants of the motor vehicle. According to
Toring
,
the information at his disposal was that a vehicle fitting the
description of the motor vehicle in which plaintiff was, was seen
parked next to the scene of a housebreaking and theft in the Sherwood
area. Inside the said motor vehicle were four to five occupants.
According to the information the housebreaking occurred at midday
between 11h00 and 13h00. He confirmed that a search of the occupants
of the motor vehicle and the vehicle upon arrest did not yield
anything. He testified that it did not occur to him that it was
possible that one of the occupants of the vehicle was not part of the
earlier housebreaking. It was also put to him that four to
five men
meant there could have been only four and one of the five found in
the car later was not one of that four. He agreed.
[6]
Toring
testified that his involvement in the matter ended after the arrest
of plaintiff and his four co-accused persons and handing them
over to
officer
Grootboom
.
At that stage he did not have the police docket or witness’s
statements at his disposal. He stated that had plaintiff told
him
that he had an
alibi
,
he would have followed up on the
alibi
.
In this regard plaintiff testified that he did not mention the
alibi
because he realised that there would be no one else present at his
home at the material time who would confirm his
alibi
..
[7]
According to the statement deposed to by the owner of the burgled
premises,
Mr Van
Niekerk
, he was
alerted to a possible break-in at about 11h30. He makes mention of a
gold Toyota Conquest that was observed in front of
his garage.
According to
Toring’s
statement and
evidence in court – at 12h30 according to his statement and
13h30 according to his
viva
voce
evidence he
received information concerning the break-in. The motor vehicle
allegedly involved therein was a silver-grey Toyota
Tazz. According
to the statement deposed to by
Mr
Van Niekerk’s
neighbour
who blew the whistle about the possible break-in,
Ms
de Swart
, it was at
10h30 when she observed a bronze Toyota Conquest / Tazz
with
three
coloured
males inside parked next to her neighbour’s house. (my
emphasis)
[8]
When confronted about the discrepancy about the number of occupants
in the car in question,
Toring
stated that he arrested all five occupants because he was afraid that
if he released some of then they would hide the stolen goods.
[9]
Section 40
(1) (b) of the
Criminal Procedure Act
provides
that:
“
(1)
A peace officer may without warrant arrest any person –
(a) …
… …
(b)
whom he reasonably suspects of having committed an offence referred
to in Schedule 1, other than the offence of escaping from
lawful
custody.”
Breaking
or entering any premises with intent to commit an offence is listed
under
Schedule 1
.
[10]
To answer the question whether the arrest and detention of the
plaintiff was unlawful or not, I must determine whether on the
evidence, the arresting officer has cause to believe or suspect that
plaintiff had committed housebreaking which is an offence
listed
under
Schedule 1
and whether such suspicion rested on reasonable grounds.
[11]
It is trite that the test whether a peace officer reasonably
suspected a person of having committed a
Schedule
1
offence is an
objective one. The question is whether any reasonable person,
confronted with the same set of facts, would form a
suspicion that a
person has committed a
Schedule
1
offence.
[1]
[12]
To recap on the evidence upon which
Toring
arrested the five occupants of the Toyota motor vehicle one of whom
was the plaintiff: He receives information at about 13h30 that
a
vehicle, whose description he was given was involved in a
housebreaking at Sherwood. He was told there were four to five people
in the motor vehicle. He then spotted the motor vehicle with five
people inside and arrested all five because he was afraid if
he
released any of them they would hide the stolen goods. The
involvement of the motor vehicle was based on the fact that it was
parked outside or next to the premises that were broken into.
[13]
We know that none of the stolen goods were found on the suspects or
on the vehicle were found in. According to the plaintiff
they went to
Tra’s Tavern after 14h00. This is in a way confirmed by the
certificate by detainee / notice of rights which
he signed at 14h40.
[14]
This was some four hours after the Toyota Conquest was seen next to
Van Niekerk’s
house. At the time it had three occupants.
[15]
Can it be said in the circumstances that the arresting officer would
form a reasonable suspicion that the plaintiff has committed
a
Schedule 1
offence.
[16]
It does not seem as though
Toring
did much to verify the information at his disposal. To establish when
this motor vehicle was seen parked next to
Van
Niekerk’s
premises, how many occupants it had. This is in view of the fact that
he does not seem too certain of the number he was given –
four
or five. Yet we know there were three according to the whistle
blower. None of the stolen goods were found in the said vehicle.
[17]
In my opinion, in view of the guaranteed right to freedom, the
arresting officer should have done more, should have examined
the
information he had at his disposal, more critically, asked or
established more details to convert his suspicions into a reasonable
one.
[18]
In my view the arresting officer did not live up to the standard
suggested by
Jones J
in
Mabona and
Another v Minister of Law and Order and Others
[2]
where he states:
“
The
test of whether suspicion is reasonably entertained within the
meaning of s 40(1)(b) is objective (
S v
Nel and Another
1980 (4) SA28 (E) at
33H. would a reasonable man in the second defendant’s position
and possessed of the same information
have considered that there were
good and sufficient grounds for suspecting that the plaintiffs were
guilty of conspiracy to commit
robbery or possession of stolen
property knowing it to have been stolen? It seems to me that in
evaluating his information a reasonable
man would bear in mind that
the section authorises drastic police action. It authorises an arrest
on the strength of a suspicion
and without the need to swear out a
warrant, ie something which otherwise would be an invasion of private
rights and personal liberty.
The reasonable man will therefore
analyse and assess the quality of the information at his disposal
critically, and he will not
accept it lightly or without checking it
where it can be checked. It is only after an examination of this kind
that he will allow
himself to entertain a suspicion which will
justify an arrest. This is not to say that the information at his
disposal must be
of sufficiently high quality and cogency to engender
in him a conviction that the suspect is in fact guilty. The section
requires
suspicion but not certainty. However, the suspicion must e
based upon solid grounds. Otherwise, it will be flighty or arbitrary,
and not a reasonable suspicion.”
It
is my finding that the suspicion entertained by
Constable Toring
was not reasonable in the circumstances. Accordingly the arrest and
detention of the plaintiff were unlawful.
[19]
No evidence was led to support the claims for malicious arrest and or
prosecution.
[20]
Plaintiff’s claim for damages in respect of unlawful arrest and
detention is for an amount of R150 000.00 against the
first
defendant. The following emerged form plaintiff’s evidence in
this regard:
He
was arrested on the 26 February 2010, detained in custody until 1
March 2010 when he appeared in court on a charge of housebreaking.
He
was locked up in a small cell with no windows with ten others. The
blankets they used were dirty.
He
was arrested in full view of many people, placed in a police van and
driven in a police convoy. Felt humiliated and embarrassed.
Clearly
plaintiff’s rights to freedom, dignity and reputation were
impaired.
[21]
Counsel for the plaintiff
Mr
Dyer
gave a helpful
synopsis of awards given in similar circumstances. Having considered
those as well as other awards given in similar
cases I am of the view
that an award of R60 000.00 will be an appropriate one in the
circumstances. It will be such that it reflects
the importance of the
right to freedom of an individual.
[22]
Accordingly the following order will issue:
(a)
Plaintiff’s claim for damages arising out of his arrest and
detention (Claim A) succeeds.
(b)
Claims for damages in respect of Claims B and C are dismissed.
(c)
First defendant is ordered to pay the plaintiff R70 000.00 for
damages in respect of his unlawful arrest and detention.
(d)
First defendant is ordered to pay interest on the abovementioned
amount at the legal rate.
(e)
First defendant is ordered to pay costs of suit.
_______________
NG
BESHE
JUDGE
OF THE HIGH COURT
APPEARANCES
For
the Plaintiff
:
Adv: Dyer
Instructed
by
:
O’BRIEN
INCORPORATED
26 Bird
Street
Central
PORT
ELIZABETH
Tel.: 041 –
582 1309
Ref.:
22/2011/ROB/cs
For
the Respondent :
Adv: PE Jooste
Instructed
by
:
STATE
ATTORNEYS
Pagdens Court
29 Western
Road
Central
PORT
ELIZABETH
Tel.: 041 –
585 7921
Ref.:
876/2011/F
Date
Heard
:
23 September
2016
Date
Reserved
:
23
September 2016
Date
Delivered
:
18
April 2017
[1]
Minister of Safety and Security v Swart
2012 (2) SACR 266
at 232
[20].
[2]
1988 (2) SA 645
at 658 E – H.