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[2019] ZAECPEHC 14
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Ntlangeni and Others v Minister of Police (1822/2017) [2019] ZAECPEHC 14 (14 March 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH
NOT
REPORTABLE
Case
No:1822/2017
XOLANI
NTLANGENI
First Plaintiff
LUNGILE
GEORGE DICK
Second Plaintiff
SEUNS
JOHANNES
Third Plaintiff
JOHAN
FLEURS
Fourth Plaintiff
and
MINISTER
OF POLICE
Defendant
JUDGMENT
MFENYANA
AJ:
Introduction
[1]
The plaintiffs instituted an action against the Minister of Police.
The facts giving
rise to the plaintiffs’ action are set out in
their particulars of claim. It is common cause that on 9 March 2015
at approximately
21h00, the plaintiffs were arrested by a member of
the defendant without a warrant, on a charge of possession of
suspected stolen
property. It is stated that on the day in
question, the plaintiffs were driving at or near the gravel road in
End Street,
Reservoir Hills, Despatch, when they were stopped by
members of the defendant, who accused them of being in possession of
suspected
stolen goods. They were put inside a police van and driven
to the Despatch police station where they were detained until they
appeared
in court on 11 March 2015. They were subsequently released
on warning at approximately 13h00 on the same day. The matter was
postponed
a few times and subsequently disposed of on 21 September
2015 following a court annexed mediation process.
[2]
It is further common cause that at the time of the arrest and
detention, the members
of the defendant were acting within the course
and scope of their employment with the defendant.
[3]
The plaintiffs claim an amount of R150 000.00 in respect of each
of them, for
damages arising from their unlawful arrest and
detention.
[4]
The plaintiffs allege that the arrest by the defendant was unlawful
for various reasons,
inter alia, that the members of the defendant
had no lawful reason to arrest them, and that the arresting officer,
Mr Potgieter,
‘did not entertain a reasonable suspicion that
the plaintiffs had committed an offence, alternatively that he failed
to take
simple investigative steps to confirm or refute his
suspicions’.
[5]
The plaintiffs further allege that their detention was unlawful as
there was no legal
justification to arrest them in the first place.
They challenge their continued detention on 10 March 2015, and argue
that there
was no valid reason for the defendant not to release
them on warning on the morning of 10 March 2015. As such, the
plaintiffs
further allege that their detention was unreasonably long
in the circumstances, as members of the defendant could have
ascertained
before and/ or after the detention that the plaintiffs
had not committed any offence.
[6]
The defendant denied that the arrest and detention were unlawful and
consequently denied
any liability to compensate the plaintiffs.
Plaintiffs’
case
[7]
Johan Fleurs (Fleurs) testified on behalf of the plaintiffs. He
testified that he
is 57 years old, and the fourth plaintiff in these
proceedings. He is presently unemployed as he was at the time of the
incident.
He is married and has four children whom he support through
part-time jobs. He attends church every Sunday.
[8]
On 9 March 2015, he was driving from a sports meeting with the first,
second and third
plaintiffs. He saw people at a dumping site,
handling refuse and some had wheelbarrows loading bricks. He
stopped and asked
them if they were loading bricks and they
confirmed. He saw that some of the bricks were still whole and some
were broken. He joined
in and loaded some bricks onto his bakkie. The
first, second and third plaintiffs also helped. They loaded
approximately 100 –
113 bricks. They drove home thereafter.
While on his way home, he saw a police van with the blue light on. He
did not know why
the police had the blue light on because he did
nothing wrong. The police official came out and accused him of
stealing and ordered
him to come out of the vehicle. He tried to
explain that the vehicle belonged to his brother in law, but the
police official dismissed
him. He stated that this was done in full
view of residents who came out to watch because of the manner the
police handled the
incident. Potgieter pulled them out of their car
and shoved them into the police van. He stated that he felt very bad
because Potgieter
handled him like an animal and he had never been
handled in that manner before. He had an explanation for the
bricks and
offered to go and show Potgieter where he got the bricks
from but Potgieter dismissed him. He arrested all four of them and
took
them to Despatch police station. He denied them any opportunity
to call a lawyer, stating that it was not time for lawyers. They
were
all detained at the Despatch police station and appeared in court on
11 March 2015 where they were asked if they wanted to
apply for legal
aid. They were released from court at approximately 14h00 on ‘free
bail’.
[9]
He described the condition of the cells both at the police station
and at court as
‘
very, very, very bad, and very dirty’
.
He testified that he could not eat for the two days he was
incarcerated. He was traumatised ‘
for his whole life’
,
so is his family. He stated that his whole life, even at church, has
changed drastically. His children could not even finish
school
as they were bullied and mocked by other children, who told them that
their father is a thief. He stated further that he
cannot find work
in Despatch as a result, as the news of his arrest spread to the
whole of the community. He testified that after
his release, he
took photographs of the dumping site to show to the court. It later
transpired that the photographs were
taken two years after the
incident.
[10]
During cross- examination, Fleurs testified that he is an elder at
his church and is involved
in community sport clubs. He conceded that
only his youngest child was still of school going age at the time of
his arrest. He
was 17 years at the time and in grade 9. He could not
remember whether his son dropped out of school before or after the
final
examinations in that year. He further conceded that the said
child had been struggling at school even prior to the incident and
had to repeat some grades.
[11]
When asked why he asked the obvious to the people at the dumping site
when he could see that
they were loading bricks, he replied that he
was not sure if the bricks belonged to someone. Counsel for the
defendant asked who
the bricks could belong to, when by his own
admission, they were at a dumping site. He appeared agitated by this
question and stated
that someone could have been trying to make money
from the bricks as there is a high rate of unemployment. He stated
further that
he did not find it strange that people were removing
bricks at night.
[12]
Fleurs testified that he knew Potgieter before the incident, as he
services the Despatch area
and there is no bad blood between the two
of them. He conceded that he took the photographs after his
consultation with his attorney
in 2017. He stated further that he
wanted to prove to the court that it was a dumping site, but counsel
for the defendant challenged
him on his testimony stating that the
dumping site would not look the same way it did two years ago when by
his own admission,
people are dumping there daily. He stated further
that he used his cellular phone to take the pictures but he no longer
had the
phone as it got broken.
[13]
The remainder of Fleur’s testimony was an account of his
experience and perception of the
police at Despatch. He
testified that they were arrogant and racist, and did not inform him
of his constitutional rights. It was
put to him that he was raising
these issues for the first time in cross examination, because he was
making his story up as he went
along.
[14]
He initially denied signing the mediation agreement and later
recalled upon prompting by the
defendant’s counsel, that he
signed the document ‘very quickly as there was no time to
explain what the document was
about’. At this point, he became
a little aggravated.
[15]
The first, second and third plaintiffs did not testify.
Defendant’s
case
[16]
In denying liability, the defendant relies on section 40(1)(b) and
40(1(e) of the Criminal Procedure
Act. The defendant further relies
on section 39 and 50 in justification of the detention.
[17]
The arresting officer, Warrant Officer Potgieter testified for the
defendant. He stated that
he has been working at the Despatch police
station for twenty eight years. On the night in question, he was
doing night duty and
patrolling in the Kayamnandi area with his
colleague, Constable Tana (Tana). They were approached by one Mr
Konzapi (Konzapi) who
informed them that some people were loading
bricks onto a ‘bakkie’ at the RDP construction site.
Konzapi gave them
the description and particulars of the bakkie. They
proceeded in the direction of End Street. A vehicle fitting the
description
given by Konzapi approached them from the opposite
direction. They saw that it was loaded with bricks and stopped it.
They established
that the driver was Mr Fleurs, the fourth plaintiff
and he was in the company of three other persons; the first, second
and third
plaintiffs in this matter. He testified that he knows the
fourth plaintiff as he is a community leader in the Despatch area and
knows where he lives.
[18]
He asked Fleurs and his passengers where they got the bricks from and
Fleurs told them he was
sent by Goofy to fetch them from a dumping
site. He arrested all four of them as he concluded that a ‘case
needed to be investigated’.
When asked for comment on the
plaintiff’s allegation that he had no lawful reason to arrest
the plaintiffs, Potgieter denied
this, and added that it was not a
normal thing to remove building material in the dark where no one
resides. He denied that the
purpose of the arrest was to embarrass
the plaintiffs and stated further that the complaint came from a
third party and not from
him and his colleague.
[19]
Potgieter testified further that he believed what Khonzapi told him,
as the plaintiffs’
could not convince him that it was lawful
for them to remove the bricks. His aim was to arrest the plaintiffs
and thereafter investigate
as he would have failed in his duty had he
entertained any doubt about arresting them. He further stated that
the matter was referred
for mediation and subsequently withdrawn on
21 September 2015 because the prosecutor was not happy that the owner
of the bricks
did not come forward. In conclusion he testified that
he would not do anything differently if faced with the same
circumstances
again.
[20]
During cross examination Potgieter testified that he informed the
suspects that he was arresting
them for being in possession of
suspected stolen goods and immediately took them to the Despatch
police station. He said the suspects
gave their full cooperation.
After all the formalities were done, the stand-by detective was
notified. He confirmed that the value
of the goods was R904.00. He
confirmed further that he knows where Fleurs stays and did not
consider him to be a flight risk, but
that he did not verify the
plaintiffs’ addresses as this is normally done by the
detectives. He further stated under cross
examination that he does
not know why the plaintiffs were not brought to court the next day,
and that the detectives are more suitable
to answer that question.
When he was asked whether he requested Konzapi to take him to the
site from where he reportedly saw bricks
being removed by the
plaintiffs, he replied that there was no need for him to do so as he
was convinced that Konzapi was telling
the truth. He left the
verification to the investigating officer. He confirmed that the
owner of the bricks was never found and
if that was the case, they
would have signed the mediation agreement as well. The agreement was
ultimately concluded between Konzapi
(as a complainant) and the
plaintiffs.
[21]
Potgieter disputed the plaintiff’s version that they got the
bricks from a dumping site,
stating that none of the bricks were
broken. He declined to answer who of the four plaintiffs was in
possession of the bricks,
and deferred this question to the court.
Issue
for determination
[22]
The main issue for determination is whether the arrest and detention
of the plaintiffs was unlawful.
The
law
[23]
Section 40(1)(b) provides:
“
A
peace officer may without warrant arrest any person –
(b)
whom he reasonably suspects of having committed an offence referred
to in Schedule 1, other than the offence of escaping from
lawful
custody…”
[1]
[24]
Section 40(1)(e) provides further that a peace officer may arrest any
person
“
(e)
who is found in possession of anything which the peace
officer reasonably
suspects
to be stolen property or property dishonestly obtained, and whom the
peace
officer reasonably suspects of having committed an offence with
respect
to
such thing;…”
[2]
[25]
For successful reliance on section 40(1)(b) the defendant must
establish the following jurisdictional
factors:
(a) that the person
arresting must be a peace officer;
(b) who must
entertain a suspicion;
(c) that the
arrestee has committed a Schedule 1 offence; and
(d) that suspicion must
be based on reasonable grounds.
[26]
Once the jurisdictional requirements are satisfied, the peace officer
is entitled to exercise
a discretion as they deem fit, provided they
stay within the bounds of rationality.
[3]
[27]
The jurisdictional factors in respect of a defence in terms of
subsection (e) require in addition,
that the peace officer must
entertain a reasonable suspicion that the property has been stolen or
dishonestly obtained; and that
the person found in possession thereof
has committed an offence in respect of that property.
The
present case
[28]
It is common cause that Potgieter was a peace officer. It is further
common cause that possession
of stolen property is a schedule 1
offence. The issue turns on whether in arresting the plaintiffs,
Potgieter entertained a suspicion
in accordance with subsections (b)
and (e), and whether that suspicion was reasonable in the
circumstances.
The
test, is not whether a policeman believes that he has reason to
suspect, but whether, on an objective approach he in fact has
reasonable grounds for the suspicion.
In
Mabona
& Another vs Minister of Law and Order & Others
[4]
,
Jones J stated thus:
“
The test of
whether a suspicion is reasonably entertained within the meaning of
s40(1)(b) is objective. Would a reasonable man in
the (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 (being in possession of suspected stolen
(property) knowing it to have been stolen)?
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.”
[5]
(my emphasis)
[29]
Upon receiving information from Khonzapi that a crime had been
committed, Potgieter set out to
find the alleged perpetrators. He
found them on the road with the bricks as informed by Khonzapi. His
decision to arrest was based
on the information he received from
(Khonzapi). It is well established that the information of informers
generally must be regarded
with caution. In Potgieter’s
defence, it must be considered that not only did he receive
information from Khonzapi that the
plaintiffs were in possession of
suspected stolen property, but he “
caught them in the act”,
so to speak, when he stopped them on the road, with a bakkie full
of bricks, as informed by Khonzapi. I suggest that in his mind
this
somewhat corroborated Khonzapi’s account, and on the basis of
this “corroboration”, concluded that the plaintiffs
had
stolen the bricks as informed by Khonzapi.
He asked the plaintiffs where they got the bricks from,
and they told him that they were sent by Goofy to fetch them. He did
not
believe this explanation and at that point, decided to effect an
arrest.
In
all the circumstances there was nothing upon which Potgieter could
have been able to assess the quality of the information
he
received from Khonzapi or the reasonableness of the conclusion
reached by Khonzapi.
He did not verify the information
received or make any further enquiries, independent of what his
informer had told him. He did
not visit the site, which according to
Khonzapi’s statement, was not far from where the arrest took
place. He, in so doing,
entertained a suspicion before critically
examining the information at his disposal. In my view, a simple
enquiry by Potgieter,
and in the circumstances, a visit to the
site would have sufficed. The purpose is to make the enquiry before
the arrest,
as opposed to making an arrest in order to investigate
the circumstances. The suspicion must be reasonable at the time of
the alleged
offence in order to pass scrutiny.
[30]
It was Potgieter’s testimony that no one came forward to claim
the bricks and up until
the time they concluded the matter and
withdrew the charges against the plaintiffs, they had no complainant,
apart from Khonzapi.
No one seemed to have been deprived of ownership
of the property. This, in my view thwarts any suspicion that an
offence
had been committed. I am alive to the fact that the suspicion
must be entertained at the time of the arrest. However even with the
wisdom of hindsight it cannot be said that the suspicion in any way,
lends itself to any degree of reasonableness in the manner
required
by the law. In his testimony, Potgieter stated that “
My aim
was to arrest the people and then investigate. If I had doubted to
arrest them, there and then, I would have failed in my
duty.”
He stated further that he did not ask Khonzapi to take him to the
site, stating further that there was no need to do that as he “
was
convinced that the explanation by Khonzapi was the truth”
It
is on this basis that he effected the arrest. He left the site
inspection to the investigating officer. While the police are
entitled to ‘strike while the iron is hot’, this is not
one such instance as by his own admission, Potgieter believed
Khonzapi’s information to be the truth and on the basis of this
“truth”, believes that he was obliged to
effect an
arrest. He misconstrued the powers conferred on him by section
40(1)(b) and (e).
[31]
In respect of section 40(1)(e), Potgieter’s testimony was that
he did not concern himself
about who of the four plaintiffs was in
possession of the bricks, but decided to arrest all of them so that
the court could decide.
[32]
As a witness, Potgieter appeared to be an honest and credible
witness. He answered questions
with ease, even under cross
examination, and offered no solution to some of the questions, where
he had none. His demeanour was
calm, and he maintained this demeanour
throughout his testimony. The crux of his testimony was that he
arrested the plaintiffs
to enable the detectives to investigate
whether the plaintiffs had committed an offence or not. This in my
view, falls short of
the requirements.
[33]
The plaintiffs’ witness on the other hand was not an impressive
witness. His testimony
was convoluted and in some instances
unreliable. He gave a long-winded and exaggerated account of
the impact of the arrest
on him and his family, stating that his
children had to drop out of school as they were mocked by other
children. During cross
examination he conceded that only one of his
four children was of school going age at the time, and that the said
child had his
own troubles with schooling, as he had repeated grades
in the past, and was, as a result lagging behind his peers. His
account
of the happenings on the day of the arrest were no less
convoluted. I view this as nothing more than the witness’
eagerness
to create an exaggerated impression of what happened on the
day in question, perhaps in an attempt to be more believable to the
court, and create an impression that he had suffered more trauma than
he had. The result was the opposite. Fleurs seemed to make
his
evidence as he went along to a point of making allegations of racism
for the first time, which did not initially form part
of his case.
During cross examination he admitted that the photographs he
presented to the court, purportedly of the dumping site,
were only
taken two years after the incident.
[34]
I do not consider these discrepancies or the witnesses’
demeanour to go to the heart of
the issue to be decided to the extent
that they alter the course of the determination whether the defendant
acted reasonably or
not. It is also trite that the trait of an
truthful witness is not their candour or ability to craft their
testimony in the most
forthright of ways. As Diemont JA in
S v
Kelly
1980 (3) SA 301
(A)
, stated, “
demeanour is, at
best, a tricky horse to ride…”.
There is thus, as
the learned judge stated, little profit in comparing the demeanour
only of one witness with that of the other
in seeking the truth. The
evidence must be looked at in its totality.
[35]
Having regard to the pleadings and the evidence tendered as a whole,
I find that the defendant
has not discharged the onus resting on it,
that Potgieter entertained a reasonable suspicion that the plaintiffs
had committed
an offence. I am therefore persuaded that the arrest
and detention of the plaintiffs was unlawful. The ensuing detention
is as
a consequence, also unlawful. I must also add that by his own
admission, Potgieter testified that he knew the fourth plaintiff,
knew where he lived, and described him as a community leader in the
area of Despatch. He added that he did not consider him a flight
risk. This suggests that a little less invasive method other than
arrest and detention, could have achieved the purpose of bringing
the
plaintiffs, all of whom were cooperative, before court.
[36]
I do not agree with the defendant’s counsel that there are two
mutually destructive versions
in this matter. The facts in this
matter are common cause. The only issue facing this court is a clear
question of law, whether
the police acted within the scope of their
powers in effecting the arrest and detaining the plaintiffs.
Locus
standi of the first, second and third plaintiffs
[37]
It was contended, albeit lukewarmly, by the defendant that the
plaintiffs lacked
locus
standi
.
The basis for the defendant’s contention was not disclosed nor
was this contention taken any further save for a rather unexpected
regurgitation thereof in the defendant’s heads of argument. The
defendant further submitted that on the basis that the other
three
plaintiffs were not called to testify, their claims should be
dismissed with costs. This was met with resistance on behalf
of the
plaintiffs, that the submission of the plaintiffs’ identity
documents into evidence and confirmation thereof by the
arresting
officer makes it clear that the plaintiffs are all adults with the
necessary
locus
standi
to sue in their personal capacities. Mr Le Roux, counsel for the
plaintiffs submitted that the aggravated nature of the plaintiffs’
detention was reported by the fourth plaintiff who testified and in
essence that they needed not testify. I will deal with this
aspect in
the ensuing paragraph. I was referred in this regard to the decision
of Eksteen J in
Leon
Chamberlain v Minister of Safety and Security
[6]
where
the learned judge found the arrest and detention of the plaintiff
unlawful and awarded him an amount of R100 000.00 even
though he
did not testify.
[38]
I do not think that much can me made of the defendant’s
challenge in respect of
locus standi
. I now turn to consider
the effect of the failure or election to not testify, on the part of
the first, second and third plaintiffs.
Ms Cubungu, counsel for the
defendant argued that these plaintiffs’ claims stand to be
dismissed with costs. Their election
not to testify, to my mind,
affects no more than the quantum of damages to be awarded and to some
degree, the extent of the evidence
placed before this court. I say
this for the simple fact that even on the defendant’s version,
all four plaintiffs were arrested
by Potgieter and detained until 11
March 2015. I have already found that the arrest and the ensuing
detention were unlawful. This,
in my view, entitles the plaintiffs to
some form of compensation as a result of their unlawful arrest and
detention. It would seem
that the real question to be answered is
whether the three plaintiffs who did not testify have proved their
claims in respect of
quantum.
Quantum
[39]
An arrest constitutes an incursion into a person’s liberty.
As
Rabie CJ stated in
Minister
of Law and Order v Hurley
[7]
,
“…
an
interference with the individual concerned.
“
In
the assessment of damages for unlawful arrest and detention, it is
important to bear in mind that the primary purpose is not
to enrich
the aggrieved party but to offer him or her some
much-needed solatium for his or her injured feelings.
It is
therefore crucial that serious attempts be made to ensure that the
damages awarded are commensurate with the injury inflicted.
However,
our courts should be astute to ensure that the awards they make
for such infractions reflect the importance of the
right to personal
liberty and the seriousness with which
any
arbitrary deprivation of personal liberty is viewed in our law. I
readily concede that it is impossible to
determine
an award of damages for this kind of iniuria with any kind
of mathematical accuracy.
The
correct approach is to have regard to all the facts of the
particular case and to determine the quantum of damages
on such
facts”.
[8]
[40]
The available case law also only serves as a guide in arriving at
what could be considered a
fair amount of compensation. As Nugent JA
stated in
Minister
of Safety and Security v Seymour
;
it is fraught with difficulty. “
The
facts of a particular case need to be looked at as a whole and few
cases are directly comparable. They are a useful guide to
what other
courts have considered to be appropriate, but they have no higher
value than that"
[9]
.
[41]
It was submitted on behalf of the plaintiffs that the following award
would be fair in the circumstances:
R150 000
in respect of the fourth plaintiff;
R100 000
each in respect of the first, second and third plaintiffs.
[42]
I have considered the specific facts of the present case. It is not
in dispute that the plaintiffs
were detained for a period of 41
hours. From what could be gleaned from the testimony of the fourth
plaintiff, the arrest and detention
caused him some degree of
embarrassment and humiliation although not to the degree he
demonstrated. It is also not in dispute that
he was detained in
a dirty cell, and that his church life was affected by the incident.
While the fourth plaintiff painted a gloomy
picture of his entire
family severely traumatised by the incident, this was refuted in
cross examination. I did not find any special
features that
exacerbated the arrest and detention.
[43]
Having considered the fourth plaintiff’s age, the nature of the
arrest and the duration
of the detention, I consider an amount of R80
000.00 to be appropriate in the circumstances. I have given due
consideration to
comparative awards given by this division in
relatively comparative circumstances, none of which fit squarely
within the circumstances
of this case.
[44]
The first, second and third plaintiffs did not testify. There is no
evidence before me on how
the circumstances of their arrest and
detention affected each of them personally. There is no evidence of
any extraordinary circumstances,
their social standing, occupation or
anything which could be said to aggravate the humiliation beyond that
which is ordinarily
associated with deprivation of liberty. In the
absence of their evidence in this regard, I am guided by previous
comparative awards.
In the circumstances, and on occasion of
their arrest and deprivation of liberty, in so far as that has been
established(even
on the defendant’s own case), I consider that
an amount of R50 000 for each of the three plaintiffs is an
appropriate
award.
Costs
[45]
It was submitted that the court has a discretion to award costs at
the high court scale, regardless
of the amount. In dealing with this
issue, I find the following passage by Jones J, apposite.
“
The
high court frequently restricts costs to the magistrates’
courts scale on the ground that the plaintiff could and should
have
proceeded in the magistrate’s court where litigation is less
expensive. In doing so, it applies the basic principle
of costs that
the court has a discretion which it must exercise judicially upon a
consideration of all the facts of each case,
and that the underlying
consideration is fairness to both sides. The amount of the judgment
or settlement is always a significant
factor in balancing fairness.
The courts discourage litigants from choosing a more expensive forum
where relief can be obtained
in a less expensive one. The defendant
should not have to pay more in the way costs because he has been
brought to a more expensive
court unnecessarily. While the amount of
a judgment is always important, it is, however, not the only
consideration. Various other
circumstances – for example, the
complexity of the factual issues, the difficulty of the legal issues,
the seriousness of
an imputation against reputation, the honesty of
officials, the general importance of the issue to the parties or the
public –
might induce a court to award costs on the high court
scale although the amount involved is small. But as a general rule
the proper
exercise of the court’s discretion on costs provides
a powerful deterrent against bringing proceedings in the high court
which might more conveniently be brought in the magistrate's court,
and this implies that the party who could have chosen to proceed
in
the lower courts will have to satisfy the high court that there are
good and sufficient reasons for the exercise of a discretion
to award
high court costs in his or her favour.”
[10]
[46]
While I agree that a
rrest and detention is a
deprivation of constitutionally guaranteed rights to freedom of
movement and dignity, I am not persuaded
that the facts of the
present matter presented any complex legal issues which could not
have been conveniently disposed of in the
Magistrate’s court.
[47]
In the result I make the following order:
(a) That the
defendant is liable to compensate the plaintiffs for damages arising
out of the unlawful arrest and detention
of the plaintiffs in the
following amounts:
(i)
R50 000 each in respect of the first, second and third plaintiffs.
(ii)
R80 000 in respect of the fourth plaintiff.
(b) The defendant
shall pay interest on the amount stipulated in (a) above, at the
prescribed rate of 10.25 % calculated from
date of judgment, to date
of payment.
(c)The Defendant is
ordered to pay the plaintiffs’ costs on the Magistrate’s
Court scale.
_____________________________________
SM
MFENYANA
ACTING
JUDGE OF THE HIGH COURT
Appearances
For
the
Plaintiff: Adv.
Le Roux
Instructed
by: Lessing,
Heyns, Keyter & Van der Bank Inc.
For
the Defendant: Adv.
Cubungu
Instructed
by: The
State Attorney
Date
Heard: 29
– 30 January 2019
Date
Delivered: 14
March 2019
[1]
Sec
40(1)(a), Criminal Procedure Act
[2]
Sec.
40(1)(e)- Criminal Procedure Act
[3]
Minister of Safety and Security v Sekhotho 2011 (5)SA 367
[4]
1988(2)
SA 654
[5]
at
658 F – G
[6]
(3500/09)
[2014] ZAECPEHC 30 (8 May 2014)
[7]
1986(3)
SA 568 (A) at 589
[8]
Minister of Safety and Security v Tyulu
2009 (5) SA 85(SCA)
at 930
D-F
[9]
[2007] 1 All SA 558 (SCA)
[10]
Vermaak
v Road Accident Fund
[2006]
ZAECHC 10
, at para [5]