Michaels v Minister of Police and Another (1697/2016) [2021] ZAECPEHC 30 (6 May 2021)

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[2021] ZAECPEHC 30
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Michaels v Minister of Police and Another (1697/2016) [2021] ZAECPEHC 30 (6 May 2021)

IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE LOCAL
DIVISION, PORT ELIZABETH)
Case
No: 1697/2016
Date
Heard: 23 November to 02 December 2020
Date
Delivered:  6 May 2021
In the matter between:
JEFF
MICHAELS
PLAINTIFF
and
THE
MINISTER OF
POLICE
FIRST
DEFENDANT
NATIONAL
DIRECTOR OF PUBLIC PROSECUTIONS
SECOND
DEFENDANT
JUDGMENT
MULLINS
AJ:
[1]
On 23 May 2016 the Plaintiff, Jeff Michaels, issued summons against
the First and Second
Defendants, the Minister of Police and the
National Director of Public Prosecutions respectively, the factual
allegations in the
amended particulars of claim being the following:
(a)
On
Wednesday, 3 December 2014 at approximately 11h00, at Kuyga,
Greenbushes, the Plaintiff was arrested by one W/O Van Staden on a
charge of robbery.  The arrest was without a warrant;
(b)
There
was no reasonable and/or probable cause for the arrest, which was
accordingly
animo
iniurandi;
(c)
The
Plaintiff’s request for an identification parade at the time of his
arrest was refused (or, in any event, ignored);
(d)
The
Plaintiff’s Constitutional rights were not explained to him;
(e)
Van
Staden failed to comply with sections (4) and (8) of the Police
Standing Order G341;
(f)
Thereafter
the Plaintiff was detained without just cause at the Kabega Park
Police Station until Friday, 5 December 2014, when he
was taken to
Court;
(g)
At
this first appearance bail was opposed by the representatives of both
Defendants and:
(i)
The
matter was remanded to 8 December 2014;
(ii)
On 8
December 2014 the matter was remanded to 10 December 2014;
(iii)
On 17
December 2014 the matter was remanded to 23 December 2014;
(iv)
On 23
December 2014 the matter was remanded to 5 January 2015;
(v)
On 5
January 2015 the matter was remanded to 8 January 2015, on which date
the bail application was heard;
(h)
After
hearing the evidence the Magistrate refused bail;
(i)
Thereafter
the Plaintiff appeared in Court on a number of occasions until 7
December 2015, when the charge was withdrawn in Court
on the basis
that the complainant, when he saw the Plaintiff, stated that he, the
Plaintiff, had not been involved in the robbery.
[2]
It is not in dispute that at all times relevant to the events
described above the First
and Second Defendants servants were acting
in the course and scope of their employment. Accordingly, vicarious
liability is not in
issue.
[3]
Insofar as the unlawfulness of the arrest, initial detention and
subsequent detention
are concerned, the Plaintiff pleaded the
standard allegations and, in addition, certain specific allegations,
which will be dealt
with hereunder.
[4]
In its amended plea the First Defendant pleaded to the arrest and
initial detention
as follows:
(a)
The
Plaintiff was arrested by Van Staden on the instructions of W/O
Weyers;
(b)
The
arrest was reasonable in that there was a reasonable suspicion that
the Plaintiff had been involved in a robbery on 21 October
2014 at
Kuyga, Greenbushes;
(c)
The
suspicion was based on a photograph identity parade (“the photo ID
parade”) in which the Plaintiff had been identified by
the
complainant as one of his attackers;
(d)
On
his arrest the Plaintiff’s Constitutional rights had been explained
to him and he had signed a document accordingly;
(e)
It
was denied that on his arrest the Plaintiff had requested an
identification parade, alternatively if he had, it could not be
granted
at that point in time;
(f)
The
arrest was in accordance with sec 40(1)(b) of the Criminal Procedure
Act, 51 of 1977 (“the Act”);
(g)
The
initial detention (i.e., up until 5 December 2014) was in accordance
with sec 39(3) read with sec 50(1)(c) of the Act and, therefore,
lawful.
[5]
In respect of the subsequent detention the First Plaintiff pleaded
that:
(a)
After
5 December 2014 the further detention was in accordance with sec
60(11) of the Act;
(b)
The
charge was withdrawn on 7 December 2015 for reasons other than that
the complainant had stated that he, the Plaintiff, was not
involved
in the robbery;
(c)
The
further detention was accordingly lawful.
[6]
In its plea the Second Defendant pleaded that:
(a)
On 5
December 2014 the Plaintiff was brought before Court and remanded in
accordance with sec 60(11) of the Act;
(b)
The
Plaintiff was charged with the crime of robbery, which is a Schedule
1 offence as well as a Schedule 6 offence in terms of the
Act.
[7]
In summary, it is not in dispute that the Plaintiff:
(a)
Was
arrested without a warrant on 3 December 2014;
(b)
Was
detained by the police until his first appearance in Court on 5
December 2014;
(c)
Was
remanded in custody by the Magistrate;
(d)
Made
a number of appearances before the bail application was heard on 8
December 2014, which bail was refused;
(e)
Remained
in custody until 7 December 2015, when the charge was withdrawn and
he was released.
[8]
What is in dispute is whether:
(a)
The
initial arrest and detention was lawful;
(b)
The
subsequent detention was lawful.
[9]
The first dispute concerns the First Defendant only and the second
dispute both the
First and Second Defendant.
[10]
In respect of the arrest and initial detention the Plaintiff claims
damages against the First Defendant
in the sum of R150,000.00, plus
interest at the legal rate from date of summons to date of payment,
plus costs of suit.
[11]
In respect of the subsequent detention the Plaintiff claims damages
against the First and Second Defendants
jointly and severally, the
one paying the other to be absolved, in the sum of R4,000,000.00,
plus interest at the legal rate from
date of summons to date of
payment, plus costs of suit.
[12]
The Plaintiff was represented by Ms
M
du Toit
, the
First Defendant by Ms
N
Msizi
and the Second Defendant
by Mr
A
Barnett
.
[13]
At the outset of the trial there was an argument as to the duty to
begin, it being the Plaintiff’s
view that the Defendants had this
duty, the Defendants holding the opposite view. After hearing
argument, as the onus in respect
of the first cause of action rested
on the First Defendant and in respect of the second cause of action
on the Plaintiff, and because
there were two Defendants before the
Court whose defences to the claims were not necessarily on the same
page, as it were (which
subsequently proved to be the case), I ruled
that the Plaintiff should begin.
[14]
The Plaintiff (who testified in Afrikaans and gave evidence through
an interpreter) testified as follows:
(a)
He is
33 years old and lives at 42 Jansen Drive, Kuyga. He lives with his
partner and their child;
(b)
On
the day of his arrest he was alone at home when Van Staden, who he
knows well because he regularly patrols in the area, entered
his
residence.  He was accompanied by a white female police officer.
Van Staden informed him that he had come to conduct a search
and that
he was looking for drugs. He did not find anything and he then told
the Plaintiff to come with him as there was a docket
for one “
Jeff
Fortuin”
;
(c)
The
Plaintiff said that this was not his name, to which Van Staden
replied that if that was the case he would be able to come home.
Van
Staden informed him that the matter concerned a robbery. On hearing
this the Plaintiff said that he should be taken to the complainant,
which, he says, Van Staden refused to do;
(d)
The
Plaintiff was placed in the back of a police van and taken to the
police station. At the police station Van Staden said he was
going to
phone “
Antoinette”
(i.e., Weyers). Van Staden then took a photograph of the Plaintiff
and sent it to Weyers. She apparently replied that “
it
is him”;
(e)
The
Plaintiff was placed in a cell. His Constitutional rights were not
explained to him (although he signature appears on the SAPS14A,
the
time being recorded as 12h15);
[1]
(f)
Initially
he was alone in the cell, but during the night two other individuals
were brought in. They were taken to Court the following
day and he
queried from one Capt Claasen, who he had grown up in front of, why
he was not also been taken to Court. He received no
explanation. He
had no further contact with anyone for the rest of that day;
(g)
At
about 08h00 on Friday one Roelofse took him out of the cell and he
was charged with robbery and interviewed. In response to the
invitation to make a statement the Plaintiff stated:
“
I
never robbed anybody.”
(h)
The
Plaintiff signed this document.
[2]
Thereafter his fingerprints were taken and he was then taken to the
New Law Courts. He appeared alone and he was asked whether
he wanted
a Legal Aid attorney, to which he replied in the affirmative. An
attorney, who was present in Court, thereafter represented
him;
(i)
He
was shown the charge sheet, which indicated that he was the fourth
accused;
[3]
(j)
The
Plaintiff was also shown a document in terms of which his rights had
been explained to him by the Magistrate.
[4]
This document records
,
inter alia,
that the Plaintiff:
(i)
Was one of the four accused;
(ii)
The right to apply for bail had been explained to him;
(iii) He had been warned
in accordance with sec 60(11)(B)(a), (c) and (d) of the Act;
(iv)
He was represented by Legal Aid;
(v)
He was in custody;
(k)
As to
why he was to remain in custody the Plaintiff was told that he had to
wait for the other accused. However, he raised his hand
and requested
an identification parade, as he had no knowledge of any robbery. This
was said in the presence of the prosecutor;
(l)
On 8
December 2014 he again appeared in court, together with two of the
other accused. They raise their hands and informed the Magistrate
that the Plaintiff did not belong there. The Magistrate’s response
was that this would have to be dealt with at the trial;
(m)
On
this occasion the matter was remanded to 17 December 2014. The
investigating officer, Weyers, was present at Court and took his
fingerprints after his Court appearance;
(n)
On 23
December 2014 he again appeared in Court and the matter was remanded
for his “
Profile”
(which is an individual’s criminal record). In the result the bail
application had to be postponed again;
(o)
On 5
January 2015 the bail application was again postponed, no reason
being forthcoming;
(p)
Finally,
on 8 January 2015 the bail application was heard, the Plaintiff being
represented by a Legal Aid attorney, one Terblanche.
The Plaintiff
gave evidence, as did Weyers;
(q)
The
Plaintiff did not testify as to what his evidence in the bail
application consisted of.  Weyers evidence consisted of her
reading out an affidavit, which was handed in as an exhibit.
[5]
(I will return to this document in due course);
(r)
At
the conclusion of the hearing the Magistrate recorded the
following:
[6]
“
Accused
no 4 appears before Court 26
Proceedings
are mechanically recorded
Judgment:
Bail is hereby refused and denied for Applicant no 4.”
(s)
The
record goes on to state that the matter was postponed for further
investigation, the Plaintiff to be remanded in custody;
(t)
In
response to a question from me, the Plaintiff stated that the reason
bail was refused was because of the evidence of Weyers;
(u)
On
the day the charges were withdrawn the Plaintiff was in Court with
three other accused, the complainant was also present.  The
complainant pointed to the Plaintiff and said that he did not know
him and that the fourth person who had robbed him was outside.
In
the result the case against him was withdrawn.  Ms
du
Toit
then took the Plaintiff to an entry in the investigating diary, dated
7 December 2015,
[7]
which record
as follows:
“
I
Charles Owen Mamvura declare that I told Mr V Makasana a state
prosecutor that Mr Jeff Fortuin acc 4 whom I was not sure about at
ID
parade (photos) is not involved in this case. I said so after I saw
the fourth gentleman outside. I then asked that the case be
withdrawn
against Jeff Fortuin. All others I’m sure about and their
involvement. I agree that the investigating officer can get
a full
statement from me about this. I signed this after it was read out to
me and I am satisfied.”
(v)
This
statement is signed by the complainant and countersigned by the
prosecutor.
[15]
So much for the merits. Insofar as the conditions of his
incarceration were concerned the Plaintiff testified
that:
(a)
The
Kabega Park cell was extremely filthy and the blanket smelled;
(b)
At St
Albans Prison he was incarcerated in a cell with 62 other people. He
had to sleep on the floor with only a blanket and no mattress,
as he
didn’t qualify for one, having refused to join a gang;
(c)
The
shower and toilet in the cell were both in the open;
(d)
He
was confined to the cell for long periods of time;
(e)
He
constantly feared being raped;
(f)
During
this entire time he never once saw either of his two children;
(g)
He
appeared in court 18 times, which he found very stressful;
(h)
The
year in custody felt like 10 years.
[16]
In describing his ordeal the Plaintiff became very emotional and
started crying.
[17]
The Plaintiff was subjected to a lengthy cross-examination by counsel
for the First Defendant, Ms
Msizi
, during which his version of
the events was thoroughly tested. By and large the Plaintiff
withstood the cross-examination and it
cannot be said that his
evidence in chief was impugned to any degree. Many of the issues put
to him were not within his knowledge
and he was unable to comment.
[18]
Of particular relevance is the affidavit of Van Staden
[8]
as to the circumstances surrounding the arrest, which was put to the
Plaintiff.  The relevant portion of which reads as follows:
“
2.
I was informed that Jeff Fortuin was a suspect in Cas 249 – 10 –
2014 by W/O Weyers. She
informed me that he was identified in a photo
id parade. I saw the photo’s and recognised him as the same person
on my phone also
named Jeff Fortuin. She informed me that as soon as
I find him he can be arrested.
3.
I tasked a source to identify where he stays and to inform me when he
is at his
place of residence.
4.
On 2014 – 12 – 03 at approximately 11:15 the source contacted me
and informed
me that the suspect is at home. I immediately went to
the house that was pointed to me and found the man known to me as
Jeff Fortuin.
I informed him of the case. At the station I again took
a photo and send it to the detective to verify if this is indeed the
suspect
to which she confirmed. He supplied me with his right name
and I arrested him as Jeff Michael – – –.”
[19]
The Plaintiff’s only response to the quoted passage was that he
denied that his rights were ever read
to him by Van Staden.  He
did not dispute the contents of the affidavit.
[20]
It was put to the Plaintiff that Van Staden would testify that he was
satisfied as to the identity of
the person suspected of the robbery
as the photograph shown to him by Weyers matched the one that he
already had on his phone. The
Plaintiff’s response was that he knew
nothing about any photographs (which is not actually correct, as his
evidence was that at
the police station his photograph has been taken
by Van Staden and sent to Weyers).
[21]
The Plaintiff was also referred to the photo ID parade,
[9]
which consists of a pro forma affidavit attested to by the police
officer holding the identity parade (in fact, there was a second
parade involving some of the other accused), an affidavit by Weyers
and a list of names of the persons whose photographs are shown
to the
witness. The following passage from Weyer’s affidavit was read out:
“
I
checked the index and according to it photo [13] thirteen belongs to
Vusumsi “Star” Yolo and photo [2] two
which
he is not sure of belongs to Jeff Fortuin.”
(My underlining).
[22]
The Plaintiff was asked for his comment and he stated that he had
none.
[23]
I should add that the affidavit of Weyers was admitted in evidence by
agreement and at the same time
the complainant’s statements
[10]
were admitted into evidence by agreement as well as an entry in the
investigation diary, dated 21 October 2014,
[11]
in which it is recorded that the complainant will be able to identify
one of the suspects (I will return to these statements below).
[24]
Ms
Mzisi
then turned to the proceedings of the first Court
appearance. The Plaintiff was asked:
(a)
Whether
the Magistrate saw him raise his hand. He replied in the affirmative
and said that he had been given an opportunity to speak;
(b)
Whether
the attorney representing him had access to the docket. He replied
that according to what he observed she did not.
[25]
That concluded the cross-examination on behalf of the First
Defendant.
[26]
Mr
Barnett
for the Second Defendant then cross-examined the
Plaintiff. Not surprisingly, he did not deal with the arrest and
initial detention,
but instead concentrated on the events surrounding
the first appearance in Court, and thereafter.
[27]
It was put to the Plaintiff that:
(a)
On
his first appearance, when he said that he wanted representation he
was indeed represented by Legal Aid attorney, who happened
to be in
Court. He agreed and said that she wrote down his name;
(b)
On
every occasion he appeared in Court, 18 times in total, he was
represented. He agreed;
(c)
Prior
to the bail application his lawyer asked him whether he was prepared
to testify at the hearing. He replied that he was;
(d)
The
reason for each postponement was explained to him by the Magistrate.
He agreed;
(e)
The
documents before Court do not indicate that his attorney ever
objected to a postponement. He replied that he would not know;
(f)
He
had informed the Magistrate that he wanted an identification parade.
He agreed and said that the Magistrate informed him that his
attorney
would request one. He cannot say whether this was ever done;
(g)
He
was given an opportunity to speak in Court and he was listened to. He
agreed;
(h)
On
the day of the bail application all four accused were in Court and
accused 1 and 2 asked the Magistrate what he (the Plaintiff)
was
doing there as he was not involved in the robbery. He agreed with
this proposition;
(i)
The
Magistrate informed him that whether or not he was involved in the
robbery would be addressed at the trial.  He agreed with
this
proposition;
(j)
When
the above was stated by the Magistrate his lawyer was present in
Court. He agreed with this proposition;
(k)
At
the bail hearing he was represented by an attorney. He agreed with
this proposition.
[28]
That concluded the Second Defendant’s cross-examination.
[29]
In reply to a question in re-examination as to whether he was also
known by the surname “
Fortuin
”, the Plaintiff denied this.
He also stated that he knew one of the other accused but that he did
not know the complainant at all.
[30]
Significantly, the Plaintiff stated that at no stage was the
Magistrate informed by any of the prosecutors
as to the details of
the photo ID parade.
[31]
The Plaintiff closed his case.  Both Defendants brought an
application for absolution from the instance.
[32]
The test for absolution from the instance is trite, namely, whether
at the close of a plaintiff’s case
there is evidence that a court,
applying its mind reasonably to the evidence, could or might, not
should, or ought to, find for the
plaintiff.  This has sometimes
been referred to as
prima facie
evidence or as evidence
sufficient to shift the evidential burden.
[33]
The question to be asked is this:  does the evidence led require
an answer from the Defendants,
or at the very least an explanation?
I was of the view that it did, particularly in that in respect of the
First Defendant
as it bore the onus in respect of the first claim,
and refused the application.
[34]
The First Defendant called Van Staden (who gave evidence in Afrikaans
through an interpreter). He testified
that:
(a)
At
the request of Weyers he arrested the Plaintiff, who had been
identified in the photo ID parade, which individual he recognised
(the photograph having been sent to him by Weyers), as he also had
the Plaintiff’s photograph on his phone;
(b)
The
Plaintiff was known to him as he had been a suspect in the past.
He knew him as Jeff Fortuin;
(c)
He
had been stationed at Kabega Park for 25 years and as Kuyga was a
relatively small area he had seen many individuals grow up in
front
of him.  That is also how he knew the Plaintiff;
(d)
He
did not know where the Plaintiff lived, but received information
through an informant, and went to the house pointed out to him.
He knocked on the door, introduced himself and advised the Plaintiff
that he was being arrested for robbery;
(e)
The
Plaintiff did not ask any questions other than to request an
opportunity to put on warmer clothing and collect his medicine, which
Van Staden allowed him to do;
(f)
As
they were walking to the vehicle Van Staden informed the Plaintiff of
his rights, namely:  that he had the right to remain
silent;
that anything he said would be recorded and used in Court; that he
had the right to legal representation of his choice; if
he couldn’t
afford an attorney one would be provided by Legal Aid; that he had
the right to apply for bail;
(g)
He
did not read from a document, but recited this from memory;
(h)
According
to Van Staden informing a suspect of his/her rights was standard
procedure, which is to complied with as early as possible
when
effecting an arrest;
(i)
He
did this walking between the house and the vehicle as police vehicles
often get stoned and he wanted to get out of the area as
soon as
possible;
(j)
He
drove to the police station where he contacted Weyers and informed
her of the arrest.  He took a photograph of the Plaintiff
and
sent it to her.  She replied that it was the right person and
that he should be kept in custody;
(k)
He
read the Plaintiff his rights (referring to SAP14A), which the
Plaintiff said he understood, and the Plaintiff signed the document
(which is in fact the case);
(l)
He
denied not explaining to the Plaintiff his rights as it is standard
practise;
(m)
The
Plaintiff’s personal belongings were removed and he was then taken
to the cells;
(n)
He
then wrote up his pocketbook;
(o)
He
then wrote up the arrest affidavit (which he read into the record);
(p)
He
confirmed an entry in the occurrence book relating to the arrest
(which he read into the record);
(q)
He
confirmed the details of the cell register;
(r)
He
denied that the Plaintiff had requested to be taken to the
complainant or that he had requested an identification parade;
[35]
Mr
Barnett
on behalf of the Second Defendant had no questions.
[36]
Ms
du Toit
, on the other hand, cross-examined Van Staden at
length.  Of relevance was the following:
(a)
Van
Staden admitted that he was acting on the instructions of Weyers and
that he had no knowledge of the case;
(b)
He
did so because as an experienced detective he accepted Weyers’
word;
(c)
He
denied that he searched the Plaintiff’s house;
(d)
He
denied that he did not inform the Plaintiff of his rights;
(e)
He
photographed the Plaintiff at the police station and sent the
photograph to Weyers in order to make sure he had the correct person;
(f)
He
admitted that his statement/s omitted certain details which he had
now testified about (which issue is dealt with below);
(g)
The
Plaintiff was known to him as he was known to be involved in criminal
activities;
(h)
He
was alone on the day, there being no white female with him;
(i)
He
had lost his pocket book;
(j)
He
had no knowledge of statements made in the matter, which included the
photo ID parade;
(k)
Even
if Weyers had advised him that there was some doubt as to the
identity of the Plaintiff, he would still have arrested him in
the
circumstances;
(l)
Finally,
in response to the proposition that he had been responsible for the
Plaintiff having spent a year in custody, he responded
that based on
Weyers’ experience he had accepted her word and arrested the
Plaintiff.
[37]
In re-examination Ms
Msizi
dealt with Van Staden’s pocket
book and he stated that he had got the Plaintiff to sign the relevant
entry, but that he had lost
his pocket book.
[38]
Not surprisingly, Ms
du Toit
objected to this evidence in that
it did not arise out of cross-examination.  She was quite
correct in this regard, but I allowed
the line of questioning as Ms
Msizi
explained that she had omitted to deal with the issue
during examination in chief.
[39]
The point Ms
Msizi
wanted to make is that although there was
no reference to a pocket book having been signed by the Plaintiff,
that did not mean that
it did not happen.  The same applied to
other omissions in his statement, such as the reading of the
Plaintiff’s rights.
The failure to mention this (and certain
other aspects) did not mean that it did not happen.
[40]
As a result of this new evidence Ms
du Toit
was given an
opportunity to further cross-examine Van Staden. She dealt at some
length with the procedure to be adopted when a pocket
book is lost
and that Van Staden had failed to follow the procedure. It was put to
him that one cannot be issued with a new pocket
book without the
completed one being handed in. He did not dispute this but said that
it was done all the time and that his old book
was not handed in as
it had been lost.
[41]
That completed the First Defendant’s case. I should add that Ms
Msizi
had advised the other parties at the commencement of the
trial that she would not be calling Weyers as she was indisposed and,
accordingly,
unavailable.
[42]
Mr
Barnett
closed the Second Defendant’s case without
leading any evidence.
[43]
Insofar as the unlawful arrest and detention is concerned, the fact
that Weyers was not called does not,
in my view, harm the First
Defendant’s case. Her unavailability was explained and not
disputed.  What she did, and why, is
before the Court and is not
in dispute.  Whether she was justified on those facts in
requesting Van Staden to arrest the Plaintiff
is another matter. Her
further conduct of the case, or lack thereof, is also not in dispute
(and is dealt with below).
[44]
Weyers held a photo ID parade in which the complainant in the robbery
case identified the Plaintiff,
although he had some doubts. Weyers
sent Van Staden the photograph with instructions to arrest the
Plaintiff, if he could. Van Staden
recognised the individual and duly
complied. Moreover, at the police station he took a photograph of the
Plaintiff and sent it to
Weyers who confirmed that he had the right
person. In the result he detained the Plaintiff.
[45]
The crisp question is this: were there sufficient grounds to arrest
the Plaintiff? I am of the view that
there were.  Despite the
equivocal identification, it was a positive identification by the
complainant, which justified the
arrest. It would have been a brave
police officer who ignored the identification, notwithstanding the
tentative nature thereof (which
is dealt with below).
[46]
Relying on the
Ralekwa v Minister of Safety and Security
2004 (1) SA 131
(T)
at para [14], Ms
du Toit
submitted
that the arrestor must form his own suspicion before arresting a
suspect, and may not rely on someone else’s opinion.
The test
is objective.
[47]
Ralekwa
is distinguishable in that it is common cause
that the actual arresting officer in the present matter was Weyers.
Van Staden
was merely carrying out her request.  See
Minister
of Justice v Ndala
1956 (2) SA 777
(T)
. However, that
does not completely exonerate Van Staden. As the “instrument” of
the arresting officer he also has a duty to ensure
that the arrest is
justified.
[48]
I am satisfied that Van Staden had no reason to second guess the
information provided to him by Weyers.
In fact, he went the
extra mile and at the police station sent Weyers a photograph of the
Plaintiff in order to confirm that he had
right person.
[49]
I do not place any weight on the fact that the Plaintiff denied being
involved in the robbery and demanded
that he be taken to the
complainant (if he did).  If every suspect who denies having
committed an offence is allowed to go free,
there will never be an
arrest.
[50]
Thus, I conclude that in effecting the physical arrest of the
Plaintiff Van Staden acted reasonably in
the circumstances.
[51]
But what of Weyers?  She was armed with the result of a photo ID
parade which, on any version, was
open to some doubt. Notwithstanding
this element of doubt, objectively speaking, I am of the view that
there was sufficient grounds
for Weyers to suspect the Plaintiff as
being one of the robbers and have him arrested. Of course, the
subsequent events are another
matter and are dealt with below.
[52]
A final word in respect of Van Staden’s evidence.  In
cross-examination and in argument he came
in for a lot of criticism
from Ms
du Toit
which criticism, in my view, was not
justified. He received information which he had no reason to
question. As he pointed out, Weyers
was an experienced detective and
he had no reason, or basis, for doubting her.  He went to the
extra trouble of sending her
a photograph from the police station to
confirm that he had the right person. Also, the fact that his
evidence and his various statements
differ in certain respects is
hardly critical and is in any event understandable in the
circumstances.   See
S v Mafaladiso
2003
(1) SACR 583
at 593e – 594h.  The loss of his pocket book
and the failure to report it may have been a breach of the police’s
standing
orders, but it did not affect his credibility, or
reliability, in this matter.
[53]
In
Duncan v Minister of Law and Order
1986 (2) SA
805
(A)
at 818G – H it was held that jurisdictional
requirements for a lawful arrest without a warrant were that:
(a)
The
arrestor must be peace officer;
(b)
The
arrestor must entertain a suspicion;
(c)
The
suspicion must relate to an offence referred to in Schedule 1 of the
Act;
(d)
The
suspicion must be reasonable.
[54]
I am satisfied that the First Defendant has acquitted the onus
resting on it on a balance of probabilities
and accordingly find that
the Plaintiff’s first claim stands to be dismissed.
[55]
I turn now to the second claim, i.e., the further detention.
The first issue to resolve is: when
did the initial detention cease
and the further detention commence?
[56]
The Plaintiff appeared in Court on no less than five occasions prior
to the bail application.  The
period involved was a total of 34
days.
[57]
Sec 50(6)(d) of the Act provides that a bail application may be
postponed for periods not exceeding seven
days, on good cause being
shown.
[58]
I accept that the bail application could not take place on the first
appearance, (5 December 2014), nor
on the second appearance (8
December 2014), nor on the third appearance (17 December 2014), nor
on the fourth appearance (23 December
2014) as the profiles were not
available.  But thereafter there was ample opportunity for the
State to get its act together
and make the necessary arrangements.
Neither Defendant showed any urgency and the fact that there were
other accused involved
cannot be used as a justification for keeping
the Plaintiff in custody any longer than was absolutely necessary.
[59]
Perhaps I am being overly lenient to the Defendants, but in the
circumstances I hold that the bail application
could and should have
been held on the Plaintiff’s fifth appearance, namely 5 January
2015.
[60]
Thus, if the Plaintiff has a claim for the further detention, it
commenced on that date.
[61]
The evidence led in the bail application is crucial.
Unfortunately, there is no evidence before
me as to what the
Plaintiff testified in the application.   What is before
me, however, is the evidence of Weyers, which
is contained in her
affidavit prepared for the bail application.  Three passages in
this document are of relevance:
(a)
In
response to the provisions of sec 60(6)(g) Weyers states:
“
The
case against the accused are (
sic)
strong.
He was identified on a Photo Identity Parade in Kabega Park Cas
249/10/2014.
Witnesses
know the persons who robbed them
.”
(My
underlining).
(b)
In
response to the provisions of sec 60(7)(b) of the Act Weyers states:
“
Statements
are filed in the docket
where
the victims name their attackers
and Photo Identification Parade was held.”
(My
underlining).
(c)
In
response to the provisions of sec 60(8)(A)(f) of the Act Weyers
states:
“
The
accused will appear today to apply for bail.  He is linked in
Kabega Park Cas 249/10/2014.  House Robbery via a Photo
Identification Parade held.  There is DNA analysis which needs
to be obtained.”
[62]
The complainant, Mr Mamvura made two statements.  In both of
them he mentions “
Star
”. In neither statement does he
mention the Plaintiff’s name.  The high watermark in this
regard is contained in the following
passages:
(a)
“…
I
saw four 4
unknown
men coming into my house, but I can point out one of them …”
(My
underlining).
(b)
“…
I
saw “Star” standing inside my place and he was denying taking the
cellphones.  I got up and started asking “Star” where
are
the cellphones and he said he doesn’t know, he then shouted for his
friends and in a few moments three
unknown
males came into my place, two of the three males are short coloured
ones, one is tall black male (I can point him out if I see him
again)…”
(My
underlining).
[63]
An entry in the investigation diary, which is dated 21 October 2014
(being the date of the offence),
records:
“
The
complainant alleged that he will be able to identify
one
of the suspects.”
(My
underlining.
[64]
This can only be a reference to the individual referred to on
numerous occasions in the docket as “
Star
”.  The
other three suspects were unknown to the complainant.
[65]
Then there is the outcome of the photo identification parade:
(a)
with
reference to the plaintiff the following is recorded:
“
±
1 minute – Photo 2
but
not sure
.”
(My underlining).
(b)
In
her affidavit in support of the photo ID parade Weyers says:
“
I
checked the index and according to it photo [13] thirteen belongs to
Vusumzi “Star” Yolo and photo [2]
which
he is not sure of
belongs to Jeff Fortuin.”
(My
underlining).
[66]
On what basis it can be deduced from the above that the Plaintiff was
known to the complainant is a mystery.
The opposite is the
case.  Not only was he unknown to the complainant, his
identification was tentative, at best.
[67]
All this information was available to both the First and Second
Defendants, as it contained in the docket
from the outset.
Thus, it defies logic that Weyers could have made such definitive
statements in her evidence in the bail application.
It is not
surprising that the Magistrate refused bail on the evidence before
him/her.
[68]
In addition, the following undisputed facts are also relevant:
(a)
The
photo ID parade was equivocal.  This is not in dispute;
(b)
At
his first appearance the Plaintiff put up his hand and said he was
not involved.  Neither Defendant led any evidence to gainsay
this;
(c)
At a
subsequent appearance two of his co-accused said that he was not
involved in the robbery.  Again, neither Defendant led
any
evidence to gainsay this;
(d)
When
the matter eventually came to trial the complainant confirmed that he
was not involved.  The Plaintiff’s statement in
the
investigation diary confirms this.
[69]
In fact, having regard to what is stated above, what is surprising is
that on the evidence available
to the State (the First and Second
Defendants) bail was opposed at all.
[70]
Freedom of the individual is one of the paramount rights entrenched
in the Bill of Rights.  It is
trite that there is a duty on the
State (be it the police or the prosecution) to bring all relevant
facts to the attention of the
Court when considering bail.  That
clearly did not happen in this case.  On the contrary, the
Magistrate was misled by
the evidence presented by the State.
[71]
What compounds the issue is that, despite the “dodgy”
identification, Weyers never deemed it advisable
to hold a proper
face-to-face identification parade.  Nor did the prosecutors
involved deem it appropriate to advise that one
be held.  Had
either taken this step, at worst for the Defendants the period in
which the Plaintiff was unnecessarily detained
would have been
substantially shortened.
[72]
In cross-examination of the Plaintiff Ms
Msizi
went to great
lengths in an attempt to distance the First Defendant from any
responsibility
after
the Plaintiff’s first appearance in
Court.  In this regard she was unsuccessful.  The fact that
the matter had been handed
over to the Second Defendant and the
Plaintiff was remanded in custody by the Magistrate did not mean that
the investigating officer
could thereafter wash her hands of the
matter. Weyers had a duty to draw to the prosecutor/s the weakness in
the State’s case and
to testify at the bail application that the
Plaintiff was not known to the complainant and that his
identification was uncertain.
She failed to do so.  In fact, she
testified to the contrary.
[73]
Furthermore, despite having more than a year to do so, she never
arranged a proper identification parade
which, had she done so, would
have resulted in the immediate release of the Plaintiff and the
withdrawal of the charge.
[74]
Mr
Barnett
was at pains to distance the Second Defendant from
any responsibility after the Magistrate had made an order remanding
the complainant
in custody, in that thereafter the matter was out of
the prosecuting authority’s hands.  This ignores the fact that
the prosecutor/s
who dealt with the matter had access to the docket
and could and should have brought the information contained therein
to the Magistrate’s
attention.  Had this been done an entirely
different picture would have been painted, particularly at the bail
application.
[75]
It does not help the Second Defendant that it closed its case without
calling any witnesses.  No
explanation was forthcoming as to why
the Second Defendant elected not to place its version before the
Court.  The prosecutor/s
involved must surely have been
available.  In any event, I was not advised to the contrary.
[76]
It was argued that the Plaintiff could have appealed against the
Magistrate’s decision to refuse bail.
This argument suffers
from two difficulties.  Firstly, it should not have been
necessary for the Plaintiff to go on appeal to
correct a manifest
injustice.  Secondly, the appeal Court would have been faced
with the same presented in the Magistrate’s
Court and, based on
that evidence, would in all probability come to the same conclusion.
[77]
As it is, due to the failure by the servants of the First and Second
Defendants the Plaintiff spent just
over of a year in custody, which
is a considerable time, in awful conditions.
[78]
From the aforegoing it is clear that I am satisfied that the
Plaintiff has proved the second claim.
I find that the servants
of both Defendants were negligent in the manner in which they (mis)
handled the subsequent detention of
the Plaintiff, and that his
subsequent detention was unlawful.   They are concurrent
wrongdoers.  It is not necessary
to apportion the blame.
The servants of both Defendants were, in my view, equally remiss in
the exercise of their legal duties.
[79]
Which brings me to the difficult issue of quantum.  On a cursory
perusal of the case law it is evident
that there is no consistency
whatsoever, in the sense that there is no correlation between the
length of time spent in custody and
the amounts awarded.  There
is no such thing as a “daily rate”, as it were.  The Courts
are vested with a discretion,
which must obviously be judicially
exercised.
[80]
The difficulty a Court has in deciding what delictual damages to
award was summed up by Watermeyer JA
in
Sandler v Wholesale
Coal Supplies Ltd
1941 AD at 199, as follows:
“
The
question now arises whether this Court should increase the amount
awarded to the appellant for pain and suffering and permanent
disability.  In considering that question it must be recognise
that though the law attempts to repair the wrong done to a sufferer
who has received personal injuries in an accident by compensating him
in money, yet there are no scales by which pain and suffering
can be
measured, and there is no relationship between pain and money which
makes it possible to express the one in terms of the other
with any
approach to certainty.  The amount to be awarded as compensation
can only be determined by the broadest general considerations
and the
figure arrived at must necessarily be uncertain, depending upon the
judge’s view of what is fair in all the circumstances
of the case.”
[81]
In determining quantum I have had regard to the authorities referred
to me by Ms
du Toit
, in particular
Msongelwa v Minister
of Police
[2012] ZAECMHC 10
,
Mofokeng &
Another v Minister of Police
[2015] ZAGPJHC 30
,
Malefetsane Mofokeng v Minister of Police and Another
(unreported)
Case No. 29678/2014
; Gauteng, Pretoria.
[82]
Apart from the fact that there is no consistency, from the
authorities referred to, three things emerge:
(a)
The
Plaintiff’s personal circumstances play an important role;
(b)
The
conditions of the incarceration play an important role;
(c)
The
defendants’ actions, or inaction, play an important role.
[83]
Insofar as the Plaintiff’s personal circumstances are concerned he
lives in a shack in what appear
to be an informal, or semi-formal,
settlement.  Although he professed to work as a “gardjie”
there was no claim for loss
of earnings and I intend working on the
basis that, at best, he was occasionally employed.  I also take
into account that he
had had a run-in with the law in the past.
[84]
The circumstances of his incarceration were extremely dire.
That anyone, let alone a person who
had done nothing wrong, should be
forced to endure the conditions in which the Plaintiff was detained,
defies ones credulity.
[85]
The attitude of the servants of both Defendants leaves much to be
desired.  At the trial the First
Defendant tried to shift the
blame on the Second Defendant;  the Second Defendant tried to
shift the blame onto the Magistrate.
In truth their servants of
both Defendants adopted a laissez faire attitude and failed dismally
in their duties.
[86]
The Plaintiff claimed R4,000,000.00 and persisted with this sum in
argument.   This sum, in
my view, is not justified.
Taking all the relevant facts into account I am of the view that an
award of R2,000,000.00 will
do justice to the case.
[87]
The Plaintiff has claimed interest as from the date of summons, being
26 May 2016.  Ms
du Toit
referred me to a number of
authorities, in particular
Blything v Minister of Safety and
Security & Others
[2016] ZAGPPHC
, and the
authorities quoted therein, in which the Court’s discretion
conferred on it in terms of
sec 2A(2)(a)
of the
Prescribed Rate of
Interest Act, 55 of 1975
, was discussed.  I can see no reason
not to follow that judgment.
[88]
In the circumstances I make the following order:
1.
The
First and Second Defendants are liable to the Plaintiff as and for
damages for unlawful detention as from 5 January 2015 to 7
December
2015, jointly and severally, the one paying, the other to be
absolved, in the sum of R2,000,000.00.
2.
The
said sum will bear interest at the legal rate as from date of service
of summons (26 May 2016), to date of payment.
3.
The
First and Second Defendants are jointly and severally liable for the
costs of suit, the one paying, the other to be absolved.
__________________________
N.J. MULLINS
ACTING
JUDGE OF THE HIGH COURT
Obo the
Plaintiff:
Adv. M du Toit
Instructed
by:
PETER MCKENZIE
39
Beetlestone Road
Gelvandale
PORT
ELIZABETH
Obo the First
Defendant:

Adv. N Msizi
Instructed
by:
STATE ATTORNEY, P.E.
29
Western Road
Central
PORT
ELIZABETH
Obo the Second
Defendant:
Adv. A Barnett
Instructed
by:
STATE ATTORNEY, P.E.
29
Western Road
Central
PORT
ELIZABETH
[1]
Trial
Bundle "1A"; p. 15
[2]
Trial
Bundle "1A"; pp. 21 – 26
[3]
Trial
Bundle "1C"; pp. 1 – 4
[4]
Trial
Bundle "1C"; p. 34
[5]
Trial
Bundle "1C"; pp. 41 – 47
[6]
Trial
Bundle "1C"; p. 40
[7]
Trial
Bundle "1A"; p. 49
[8]
Trial
Bundle “1A”; pp. 13 - 14
[9]
Trial
Bundle "1A"; pp. 29 – 34
[10]
Trial
Bundle "1A"; p. 2 and pp. 8 – 9
[11]
Trial
Bundle "1A"; p. 41