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[2022] ZAECPEHC 8
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Noemdoe v Minster of Police (2987/2018) [2022] ZAECPEHC 8 (3 May 2022)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE LOCAL
DIVISION, GQEBERHA)
Case No. 2987/2018
In the matter between:-
KEENAN
PETER
NOEMDOE
Plaintiff
and
THE
MINSTER OF
POLICE
Defendant
Coram:
Bands AJ
Dates heard:
19-21 & 24 January 2022
Delivered:
3 May 2022
JUDGMENT
BANDS
AJ:
[1]
The
plaintiff was arrested on 1 April 2018, without a warrant by the
arresting officer, Constable Mandla, at approximately 17h35,
at the
Wells Estate Splash Festival, on a charge of assault with intent to
do grievous bodily harm; and/or assault with the infliction
of a
dangerous wound.
[1]
He was
detained at the Motherwell Police Station until 19h00 on 2 April
2018, when he was released on bail. It is not in dispute
that the
plaintiff was in custody for 26 hours and 25 minutes.
[2]
The plaintiff claims damages against the
defendant for his alleged unlawful arrest and detention. Whilst the
defendant initially
raised a special plea of non-compliance with
section 3 of Act 40 of 2002, this was later withdrawn together with
the filing of
the defendant’s amended plea, prior to the
commencement of the matter on the first day of trial. Accordingly,
the only issues
which fall to be determined are the lawfulness of the
plaintiff’s arrest and his subsequent detention. In the event
that
I am of the view that the plaintiff’s arrest and/or
detention was unlawful, the quantum of the plaintiff’s claim
will
be considered.
[3]
On the pleadings, the plaintiff contends
that his arrest and detention was wrongful and unlawful inasmuch as
there existed no grounds
to suspect that the plaintiff had committed
an offence. Alternatively, in the event that the members of the South
African Police
Services (“
the SAPS
members
”) entertained such
suspicion, the plaintiff pleaded that they failed to exercise their
discretion to arrest and detain the
plaintiff rationally, as a
consequence of which, it was exercised unlawfully. The basis for the
attack on the SAPS members exercise
of discretion is canvassed on the
pleadings.
[4]
The defendant pleaded that the arrest and
detention was lawful and justifiable in that a complaint was received
by “
the SAPS official(s) on duty
”
and that the “
nature of the
complaint was that the Plaintiff and his co-accused, had committed
the offence of assault with the intent to do grievous
bodily harm on
the complainant and/or a schedule 1 offence of assault with the
infliction of a dangerous wound.
”
The defendant further contends that the plaintiff was lawfully
detained and charged as aforesaid. The plaintiff’s
arrest,
without a warrant, as pleaded by the defendant, was effected in terms
of section 40(1)(b) of the Criminal Procedure Act,
51 of 1977 (“
the
CPA
”).
[5]
Strikingly, until the amendment of the
defendant’s plea on the first day of trial, which introduced
the alternative alleged
offence of “
assault
with the infliction of a dangerous wound”
,
the defendant placed sole reliance on the offence of assault with the
intent to do grievous bodily harm, the latter not being
an offence
referred to in Schedule 1 of the Act, and accordingly not justifiable
under section 40(1)(b) of the Act. I return to
this aspect later.
[6]
The only account of the circumstances
surrounding the commission of the alleged offence/s were narrated by
the plaintiff, who was
stationed at the main entrance of the Wells
Estate Splash Festival, as an independent security official, together
with Morne Joel
(“
Joel
”)
and Glendon Mejanie (“
Mejanie
”),
both of whom testified on behalf of the plaintiff at trial. The
defendant elected not to call the complainant, Banele
Mzimansi
(“
Mzimansi
”)
as a witness. Given the conclusion to which I arrive at herein below,
I do not deem it necessary to draw an adverse inference
against the
defendant for such failure.
[7]
The undisputed evidence on behalf of the
plaintiff is that on the afternoon of 1 April 2018, Mzimansi
approached the main entrance
of the Estate in a White Mercedes Benz,
accompanied by a male passenger. Upon his arrival, a female Metro
Security official attended
to an inspection of Mzimansi’s
vehicle, which inspection the latter resisted. Mzimansi was found
with a glass in his hand,
from which he was drinking what appeared to
be an alcoholic beverage. The official from Metro Security attempted
to explain to
Mzimansi that he was not permitted to bring alcohol or
glass into the estate. This angered Mzimansi and the situation became
volatile.
At this point, Joel approached Mzimansi, who in turn
reached for a bottle of Hennessy Whisky and topped up his glass.
[8]
Joel made numerous requests for Mzimansi to
put down his glass and to desist from drinking, reinforcing what had
previously been
stated by the Metro Security official. Mzimansi
became aggressive towards Joel both verbally and physically and
proceeded to push
Joel in the chest. Joel assessed the glass in
Mzimansi’s hand to be a possible weapon and placed his hand
around that of
Mzimansi, who proceeded to hit Joel in the head with
his free hand. Joel thereafter retaliated. The glass broke in
Mzimansi’s
hand and fell to the ground. Mzimansi returned to
his vehicle and emerged with a sealed champagne bottle, which he held
by the
neck and approached Joel aggressively. He attempted to strike
Joel on the head with the bottle. Joel raised his arms to block the
blow and the impact broke the bottle, which in turn cut Joel under
the chin. The wound began to bleed profusely.
[9]
The plaintiff and Mejanie, who were nearby,
assessed the situation as dangerous and attempted to approach
Mzimansi. Mzimansi, who
was still holding the broken bottle neck
approached Mejanie aggressively. Mejanie punched Mzimansi on the
nose, who thereafter
dropped the bottle neck and returned Mejanie’s
punches. Mzimansi proceeded to punch the plaintiff, who retaliated by
punching
Mzimansi once on each side of his head, in an attempt to get
away.
[10]
The altercation continued between Joel and
Mzimansi, with Joel throwing Mzimansi to the floor, and the parties
ultimately landing
up in a small ditch next to the road before the
fight was naturally diffused. Mzimansi left Wells Estate. An
ambulance arrived
on the scene and Joel was treated. Joel thereafter
approached the Metro Security and offered to provide them with a
statement,
which offer was declined.
[11]
Joel, Mejanie and the plaintiff continued
with their official duties until later in the afternoon when
approximately three SAPS
members, inclusive of Constable Mandla,
arrived on the scene, together with Mzimansi. Upon their arrival,
Mzimansi pointed to Joel;
Majanie; and the plaintiff. The plaintiff
enquired from Constable Mandla if there was a problem, to which
Constable Mandla responded
that a complaint had been laid against
them and that he was there to arrest them. The plaintiff testified
that he attempted to
explain to Constable Mandla what had transpired
earlier on that afternoon, but his attempts fell on deaf ears.
Constable Mandla
read Joel; Majanie; and the plaintiff their rights,
whereafter they were transported in the back of the police vehicle to
Swartkops
Police Station, where they were held for a short period of
time before being transported to the Motherwell Police Station, where
they were detained.
[12]
It bares mention that Joel; Majanie; and
the plaintiff struck me as honest witnesses, with their evidence
being probable; reliable;
and credible in all material respects. I am
alive to the minor discrepancies in their evidence, such as to the
type of glass that
was being held by Mzimansi, but nothing turns on
this.
[13]
Constable Mandla testified that on the day
in question, he was stationed at the Wells Estate Splash Festival,
performing crime prevention
duties. He returned to the Swartkops
Police Station in order to fetch warm clothing. He was informed by
Warrant Officer Mondile
that a complaint of assault with intent to do
grievous bodily harm had been received from a member of the public
and that there
were no other vehicles that were available to go out
and assist the complainant.
[14]
Constable Mandla approached Mzimansi and
introduced himself. He testified that upon seeing Mzimansi he noticed
that he had an open
wound between his eyes; that he had sustained a
severe injury to the nose, which was crooked; and that his face from
his nose downward
was full of blood. According to Constable Mandla,
Mzimansi had also sustained an injury to his left hand. He thereafter
requested
to have sight of the docket. He had regard to the injury
statement contained therein and found the content thereof to be
consistent
with what he had noted. Mzimansi informed Constable Mandla
that he had been assaulted by security guards at the Wells Estate
Splash
Festival. Constable Mandal requested Mzimansi to accompany him
to the scene of the incident.
[15]
Upon arrival at the Wells Estate Splash
Festival, and at the behest of Constable Mandla, Mzimansi pointed out
Joel; Majanie; and
the plaintiff as the persons who had assaulted
him. According to Constable Mandla, he approached the three men and
introduced himself.
He advised the men that a complaint had been
received and that a charge of assault with the intent to do grievous
bodily harm had
been laid against them. Following a phone call
received from an unidentified woman who was with Joel; Majanie; and
the plaintiff,
Captain Krieger arrived at the scene and addressed
Constable Mandla away from the three men. According to Constable
Mandla, Captain
Krieger advised him that he was unaware of the reason
for the said call and informed Constable Mandla to do his job.
Constable
Mandla thereafter reapproached the three men; advised them,
once again, of the charge against them; and informed them that he was
going to arrest them on the charge stated. He read the three men
their rights and enquired whether there was anything that they
did
not understand, to which there was no response. He requested the
three men to get into the police vehicle and advised them
that he
would be taking them to the Swartkops Police Station.
[16]
Warrant Officer Mondile confirmed that he
assisted Mzimansi when he attended upon the Swartkops Police Station;
that he was the
author of the injury statement; and that he had
requested Constable Mandla to go out to the scene of the incident to
assist the
complainant.
[17]
Sergeant Nikelo testified that he first
became aware of the incident and subsequent arrest on 2 April 2018.
Upon receipt of the
docket, he proceeded to interview Mzimansi
telephonically, whereafter he attended upon the Motherwell Police
Station, together
with Warrant Officer Appolis, to interview the
plaintiff. During the course of the interview, Sergeant Nikelo and
Warrant Officer
Appolis obtained the necessary information relating
to the plaintiff’s personal circumstances, relevant to the
issue of bail,
and Warrant Officer Appolis completed the “
Prosecutors
info on Swartkops CAS06/04/2018
”
document. Following the said interview, Sergeant Nikelo formulated
the view that the three persons, including the plaintiff
“have
a right” to be released on bail but that as they were charged
with assault with intent to do grievous bodily
harm, an order of
court would be necessary.
[18]
It is common cause that Constable Mandla,
prior to the arrest of the plaintiff: (i) failed to obtain
exculpatory statements from
the plaintiff; Joel; Majanie; and/or from
any one of the numerous persons who witnessed the incident; and (ii)
that he had no information
concerning the personal circumstances of
the plaintiff. I return to these two aspects later herein below.
[19]
Before proceeding to deal with the central
issues herein, it is necessary to state that whilst I found Constable
Mandla to be an
evasive and argumentative witness, I am of the view,
given the parties’ pleaded cases; the evidence led; and the
issues which
fall to be determined, that it is not necessary to make
a definitive credibility finding in respect of him as a witness.
[20]
In terms of section 40(1)(b) of the Act:
“
A
peace officer may without a warrant arrest a person-
(a)
…
(b)
whom he reasonably suspects of
having committed an offence referred to in Schedule 1, other that the
offence of escaping from lawful
custody.”
[21]
The
jurisdictional facts to justify an arrest in terms of section
40(1)(a) of the Act are as follows: (ii) the arresting officer
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. It is trite that all four
jurisdictional facts must be present to succeed with such defence.
[2]
[22]
The
onus rests on the defendant to justify an arrest. It was stated by
Rabie CJ at 589E-F in
Minister
of Law and Order v Hurley
:
[3]
“
An
arrest constitutes an interference with the liberty of the individual
concerned, and it therefore seems fair and just to require
that the
person who arrested or caused the arrest of another person should
bear the onus of proving that his action was
justified in
law
.”
[23]
In light of the evidence referred to above,
it cannot be gainsaid that the arresting officer, Constable Mandla,
was a peace officer;
and that he entertained a suspicion that the
plaintiff had committed an offence.
[24]
I
previously alluded to the defendant’s pleaded case in respect
of the alleged offence committed by the plaintiff and the
amendment
effected on the first day of trial, the effect of which was to
introduce the alternative alleged offence of “
assault
with the infliction of a dangerous wound”
,
which falls within schedule 1 of the Act.
[4]
[25]
Notwithstanding the amendment, at no stage
did Constable Mandla contend in evidence that the plaintiff was being
charged with the
offence of assault with the infliction of a
dangerous wound and that he was being arrested on such charge.
[26]
In argument, Ms Desi on behalf of the
defendant, argued that Constable Mandla testified that Mzimansi had
sustained a “
dangerous wound
”,
presumably for the purposes of establishing that the plaintiff’s
arrest had been effected pursuant to the commission
of a schedule 1
offence. I find no merit in such argument. The quoted evidence is
taken out of context and cannot be assessed in
isolation. To do so
would be to ignore firstly, the body of Constable Mandla’s
evidence in which he continuously made reference
only to the charge
of assault with the intent to do grievous bodily harm; and secondly,
his unequivocal evidence that he was arresting
the plaintiff on such
charge. This too is supported by the description of the alleged
offence recorded by Constable Mandla on the
document headed Notice of
Rights in Terms of the Constitution, completed at 17h55 on 1 April
2018, following the plaintiff’s
arrest. The evidence relied
upon by Ms Desi was tendered by Constable Mandla merely as a
description of Mzimansi’s wounds,
as assessed by Constable
Mandla and for no other purpose.
[27]
It
is clear that Constable Mandla relied solely on the version told to
him by Mzimansi, which in itself was scant if regard is had
to his
evidence, and the injuries which he was presented with. He failed to
investigate the further circumstances of the assault
itself; and
whether the wound was inflicted intentionally or whether it came
about accidentally during the scuffle. Constable Mandla
wrongly
assumed that the assault was committed with intent to do grievous
bodily harm and that the offence is listed in Schedule
1.
[5]
[28]
As previously stated, Schedule 1 does not
include assault with intent to do grievous bodily harm.
[29]
In the absence of establishing that
Constable Mandla suspected the plaintiff of having committed an
offence referred to in Schedule
1, one of the necessary
jurisdictional facts is missing. I am accordingly unable to find that
the defendant has discharged the
onus, on a balance of probabilities,
that the plaintiff’s arrest without a warrant is lawful in
terms of section 40(1)(b).
[30]
In the event that I am incorrect, I in any
event find that the defendant has failed to prove the existence of
the fourth jurisdictional
fact, and more particularly, has failed to
prove that the information at the disposal of Constable Mandla gave
rise to a reasonable
suspicion.
[31]
As
previously stated, Constable Mandla failed to obtain exculpatory
statements from the plaintiff; Joel; Majanie; and/or from any
one of
the numerous persons who witnessed the incident. The plaintiff,
relying on a recent decision of the Supreme Court of Appeal,
Brits
v Minister of Police and Another
[6]
argued that there is an obligation on an arresting officer to take
into account all information which is reasonably available to
him and
that the version of the arrestee should also be considered.
[32]
The
approach to be adopted in considering whether or not the suspicion is
reasonable has often been restated and was succinctly
set out by
Jones J in the matter of
Mabona
and Another v Minister of Safety and Security and Others
:
[7]
"
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
be based upon solid grounds. Otherwise, it will be flighty or
arbitrary, and not a reasonable suspicion
.”
[33]
Reliance
in similar matters is also often placed on the decision of
Louw
and Another v Minister of Safety and Security and Others
,
[8]
wherein the court stated that the failure of the arresting officer to
investigate an arrestee’s explanation amounted to a
dereliction
of duty; and on the matter of
Liebenberg
v Minister of Safety and Security
[9]
wherein the Court, relying on
Louw
,
stated that:
“
Police
officers who purport to act in terms of section 40(1)(b) should
investigate exculpating (sic) explanations offered by a suspect
before they can form a reasonable suspicion for the purposes of a
lawful arrest
.”
[34]
Van
Zyl DJP in
Wani
v Minister of Police and one Other
[10]
had the opportunity to critically consider the statements expressed
in
Louw
and
Liebenberg
,
and commented at paragraphs [27] and [28] as follows:
“
[27]
… What was said in Louw cannot be elevated to a hard and first
(sic)
rule,
namely that a failure to first investigate an exculpatory statement
proffered by a suspect would render an arrest in terms
of section
40(1)(a)
(sic)
unlawful.
That is not what the Court in Louw said or what was intended to be
conveyed. The statement in Louw that the inaction of
the police
officer in question amounted to a dereliction of duty was made in the
context of the Court’s findings that the
arresting officer
acted with malice. That is, that he had an ulterior motive for the
arrest of the arrestee, that the arrest took
place in circumstances
that could never have raised a reasonable suspicion that the arrestee
had committed an offence listed in
Schedule 1 of the Act.
[28]
What is required by Section 40(1)(a)
(sic)
is that the arresting officer must
entertain a suspicion that a Schedule 1 offence has been committed.
He must entertain the suspicion
at the time of the arrest. The test
for determining the existence of a reasonable suspicion is an
objective one… The question
is whether a reasonable person,
confronted with the same information, would form a suspicion that a
person has committed an offence
as envisaged in Schedule 1. It is not
whether the police officer believes that he has reason to suspect,
but whether objectively,
he in fact has reasonable grounds for his
suspicion. Reasonable ground for the suspicion is to be determined
against what was known,
or reasonably capable of being known at the
relevant time. What is required is that the police officer must take
into account all
the information available to him at the time and
base the decision to arrest on such information
.”
[35]
Van Zyl DJP went on further to state at
paragraph [30] that:
“
[30]
The application of the aforementioned test is case specific. In other
words, the test must be applied in the context
of the facts and
circumstances presented in each case. Accordingly, the quality of the
information at the disposal of a police
officer may in any particular
case, as was clearly the position in Louw, be so tenuous and/or
conflicting that objectively it cannot
sustain a suspicion as
envisaged in a (sic) section 40(1)(b) without the police officer
first, acting reasonably as envisaged in
Mokoena,
[11]
making further enquiries before effecting the arrest. What it
certainly does not mean, is that a police officer has a duty to
prove, or disprove the truth of what was conveyed to him before he
can lawfully execute a warrantless arrest in terms of section
40(1)(b). The judgment in Louw is certainly no authority for such
proposition, or for the proposition that the failure to first
investigate an exculpatory explanation proffered by a suspect without
more renders an arrest in terms of section 40(1)(b) unlawful
.”
[36]
I
align myself with the aforesaid position. To hold otherwise would be
tantamount to creating an additional jurisdictional fact
justifying
an arrest in terms of Section 40(1)(b) of the Act. As Harms J found
in
Minister
of Safety and Security v Sekhoto and Another,
[12]
no fifth jurisdictional fact is required.
[37]
I,
accordingly, respectfully disagree, with the comments of the Court in
the matter of
The
Minister of Police and one Other v Erasmus,
[13]
insofar as the Court found that it is a legal requirement to
investigate exculpatory explanations and that there is a duty on an
arresting officer to verify exculpatory explanations prior to
effecting an arrest.
[38]
It is essential that a legal principle is
understood within the context of the particular facts of the matter
in which it is raised,
and that such principle is supported by the
relevant facts. Put differently, each case should be decided on the
merits of its own
facts.
[39]
In
Brits
v Minister of Police and Another,
[14]
the Court stated at paragraph [30] as follows:
“
On
a holistic consideration of all the evidence, the circumstances under
which the goods suspected to be stolen ended up at the
appellant’s
shop were in part within the knowledge of Col Espach as he had
witnessed their conveyance to the appellant’s
shop.
Furthermore, the appellant proffered a reasonable explanation
regarding the circumstances surrounding his SMS exchange with
Mr
Dube. Armed with all of that information, any further suspicion on
the part of Col Espach could only have fallen within the
category of
a ‘flighty or arbitrary, and not a reasonable
suspicion’.
[11]
To
the extent that Col Espach continued to harbour a suspicion
notwithstanding the plausible explanation given by the appellant,
his
suspicion did not pass the test laid down in Mabona and was
therefore not reasonable
.”
[40]
What distinguishes
Brits
from the present matter is that the
arresting officer in
Brits
,
had knowledge of the arrestee’s exculpatory statement at the
time of effecting the arrest, which statement the Court found
to be a
plausible explanation in the context of the matter. It was in those
circumstances that the Court found that a police officer
possessed of
all the information known to the arresting officer at the relevant
time, would not have reasonably suspected that
the arrestee was
complicit in the commission of the offence.
[41]
Turning to the facts of the present matter,
it cannot be said that time was of the essence to the extent that
Constable Mandla ought
not to have assessed the quality of the
information provided to him by Mzimansi prior to effecting the arrest
of the plaintiff,
insofar as same was possible.
[42]
On Constable Mandla’s own version,
and apart from noting Mzimansi’s injuries, he was merely
informed by Mzimansi that
he had been assaulted by
inter
alia
, the plaintiff. The exists no
plausible explanation as to why Constable Mandla, when approaching
the plaintiff at the scene of
the incident on the afternoon of 1
April 2018, failed to enquire from him, his version of events, which
version was reasonably
capable of being ascertained at the relevant
time. There further exists no reason why Constable Mandla elected not
to obtain statements,
or at the very least question, one of the many
independent persons who had witnessed the altercation in an endeavour
to establish
an objective account of the incident.
[43]
Constable Mandla conceded during
cross-examination that Mzimansi had not informed him of the events
leading up to his assault, and
that had he been aware of such facts,
as set out by the plaintiff, he would have approached the matter
differently. On the facts
of the present matter, I find that
Constable Mandla ought to have made further enquiries, as envisaged
in
Wani
,
prior to effecting the plaintiff’s arrest.
[44]
I accordingly find, in the context of the
present matter, that Constable Mandla failed to take into account all
the information
available to him at the relevant time upon which to
found a reasonable suspicion that the plaintiff had committed an
offence referred
to in Schedule 1 of the Act.
[45]
Given the absence of the fourth
jurisdictional fact, the above finding is once again dispositive of
the issue of liability. It therefore
follows that the plaintiff’s
arrest and subsequent detention was unlawful.
[46]
In
light of the findings which I have reached, I do not intend dealing
at length with the question of how Constable Mandla exercised
his
discretion to arrest the plaintiff, nor do I intend recounting the
trite legal principles relevant to such discretion, suffice
to state
that such discretion only arises once the jurisdictional facts for an
arrest in terms of section 40(1) of the Act are
present, and
accordingly, for the reasons already stated, does not arise in the
present matter.
[15]
[47]
Notwithstanding the aforesaid, I am
constrained to record that Constable Mandla’s evidence was
self-evidently contradictory
in many respects insofar as the exercise
of his discretion to arrest the plaintiff is concerned. Amongst
others, Constable Mandla’s
version vacillated as follows: (i)
that he arrested the plaintiff as a consequence of the seriousness of
the injuries sustained
by Mzimansi; (ii) that he was merely
performing his duty as an officer to look at the complainant and the
injuries sustained by
him and to determine whether the injuries
sustained were life threatening; (iii) that he is aware of his “duty”
or
“job” when to arrest; and (iv) for further
investigation.
[48]
I pause to mention that the defendant, in
his amended plea, contends that the plaintiff was arrested with the
intention of bringing
him to justice and that the SAPS member(s)
weighed their/his or her duty in terms of section 205 of the
Constitution of the Republic
of South Africa, 1996, against the
plaintiff’s right to liberty and in light of all the
information exercised a discretion
to arrest and detain the
plaintiff. This did not emerge from the evidence of Constable Mandla.
[49]
Apart from the fact that it is clear that
Constable Mandla’s understanding of his discretion to arrest,
when same arises,
is lacking in the extreme, the ineluctable
conclusion, on his own version, is that he had already decided to
arrest the plaintiff
prior to leaving the Swartkops Police Station
and accordingly he had no intention of taking any steps to obtain
objective facts
regarding the incident, nor did he attempt to obtain
information regarding the plaintiff’s personal circumstances,
which
were easily ascertainable and which became known to the SAPS
members shortly after his arrest on 2 April 2018, when interviewed
by
Sergeant Nikelo and Warrant Officer Appolis. In the circumstances of
the present matter, I am of the view that consideration
ought to have
been given to such circumstances insofar as they were relevant to the
exercise of Constable Mandla’s discretion
to arrest.
[50]
I accordingly conclude that Constable
Mandla’s decision to arrest the plaintiff was objectively
irrational.
[51]
I now turn to the quantification of
the plaintiff’s damages.
[52]
The plaintiff, in his particulars of claim,
claimed an amount of R581,083.00, with R500,000.00 being in respect
of general damages
and R81,083.00 being for past loss of income,
given the delay in his promotion from Shift Commander to Regional
Manager at Odyssey
Security Solutions (Pty) Limited, which delay was
occasioned as a direct consequence of the then pending criminal
charge against
him. The plaintiff’s employer testified in
support of the plaintiff’s case and gave an account of the
circumstances
surrounding the plaintiff’s promotion; the
reasons for the delay in such promotion; and the financial
implications of such
delay. He further testified as to the
implications that the pending criminal case had on the plaintiff’s
employment until
such time that the charge was withdrawn, and more
particularly, how the plaintiff’s delegated firearms authority
had been
revoked and how he had effectively been demoted to a more
administrative position, which the plaintiff found to be embarrassing
and degrading. This evidence was uncontested by the defendant.
[53]
At the hearing of the matter, and by
agreement between the parties, the plaintiff handed into evidence, as
exhibit “A”,
an amended actuarial report regarding the
plaintiff’s loss of earnings, which provided for past loss of
income calculated
in the amount of R80,948.00. The accuracy of such
report and the facts upon which it was based were not challenged by
the defendant
in evidence. I see no reason to depart from the content
thereof.
[54]
In argument, the quantum of the general
damages claimed was significantly reduced from R500,000.00 to
R100,000.00 and accordingly,
the plaintiff’s total claim at the
end of the trial was in the amount of R180,948.00
[55]
As recorded herein above, the plaintiff was
in custody for a period of 26 hours and 25 minutes. At the time of
his arrest, the plaintiff,
who is now 36 years old, was 32 years of
age. He was arrested in clear view of his colleagues and community
members.
[56]
The plaintiff explained that by virtue of
the position held by him in the security sector, he often works
together with the South
African Police Service at various events and
is well known for that reason in the Motherwell community. He was
humiliated and embarrassed
by his arrest and detention, both in his
professional and personal life.
[57]
The conditions in which the plaintiff was
detained at the Motherwell Police Station were undeniably unsavoury.
He stated that whilst
he was initially detained along with Joel and
Majanie only, by the end of the night there were approximately 13 to
14 persons sharing
the same cell. The ablutions were unhygienic and
not fit for use and the walls of the cell and shower were decorated
with faeces.
The plaintiff was offered nothing to eat or drink on 1
April 2018.
[58]
The plaintiff’s employer further
testified that the plaintiff is an even-tempered individual with
integrity.
[59]
It
is trite that whilst awards for damages made in previous cases may
serve as a guide in the consideration of an appropriate amount
of
damages, such awards are not to be followed slavishly, and each case
must be determined on its facts.
[16]
[60]
In
Brits
,
the Court, after considering recent awards, in similar matters, of
the Supreme Court of Appeal and the Constitutional Court, together
with the facts relevant to the case, including the age of the
appellant; the circumstances of his arrest (inclusive of the fact
that the plaintiff therein was arrested at his place of business in
the presence of two of his employees); and the relatively short
duration of the detention, the Court ordered general damages in the
sum of R70,000.00. I pause to mention that the period of detention
in
Brits
is
comparable to the period of detention herein.
[61]
Given the particular facts of the present
matter, and more particularly, the circumstances set out in
paragraphs [55] to [58] above,
I consider an award in the amount of
R90,000.00 to be suitable in the circumstances.
[62]
Lastly, I now turn to the issue of costs.
The quantum of the plaintiff’s damages falls within the
jurisdiction of the Magistrates’
Court. I find no reason to
justify the prosecution of the claim in this court. Whilst the
parties appeared to be
ad idem
that any cost order granted herein ought to be on a High Court scale,
any such agreement between the parties cannot, and does not,
oust the
Court’s discretion in the award of costs.
[63]
I agree with the plaintiff’s counsel,
Mr Mouton (who appeared together with Ms Barnard), that the
plaintiff’s employer,
who is based in Gauteng, was a necessary
witness. The plaintiff had since May 2020 requested that the
defendant make certain admissions
relating to his claim for past loss
of income (in the event that the plaintiff was successful in proving
that his arrest and/or
detention were unlawful), which the defendant
refused to do. Notwithstanding the aforesaid, and as previously
stated, no aspect
of this portion of the plaintiff’s claim was
placed in dispute by the defendant during evidence. In these
circumstances,
it would be fair to order the defendant to pay the
costs associated with such witness.
[64]
In the result, I make the following order:
1.
Judgment
is granted in favour of the plaintiff for the payment of the sum of
R170,948.00 as against the defendant in respect of
his unlawful
arrest and detention on 1 April 2018.
2.
The
defendant is ordered to pay interest on the sum of R170,948.00, at
the legal rate, calculated from the date of judgment to date
of
payment thereof.
3.
The defendant is ordered to pay the
plaintiff’s taxed or agreed party and party costs of suit on
the Magistrates’ Court
Scale, which costs are to include the
travel costs incurred in respect of the plaintiff’s witness, Mr
Wellerman, who is declared
a necessary witness.
4.
The defendant is ordered to pay interest on
the amount referred to in paragraph 3 herein,
at the legal rate, calculated from fourteen days from the date of
taxation or agreement to date of payment thereof.
I
BANDS
ACTING
JUDGE OF THE HIGH COURT
Appearances:
For
the Plaintiff: Adv P
Mouton, together with Adv N Barnard
For
the Defendant: Adv Desi
[1]
I
deal with these respective charges and the defendant’s amended
pleadings hereunder.
[2]
Minister
of Safety and Security v Sekhoto and Another
2011
(5) SA 367 (SCA).
[3]
Minister
of Law and
Order
v Hurley
1986
(3) SA 568
(A)
at 589E-F.
[4]
No
doubt in an attempt to bring the defendant’s pleaded defence
within the ambit of section 40(1)(b).
[5]
De
Klerk v Minister of Police
2018
(2) SACR 28 (SCA).
[6]
(
756/2020)
[2021] ZASCA 161 (23 November 2021).
[7]
1988
(2) SA 654 (SECLD) at 658E-H.
[8]
2006
(2) SACR 178 (T) at 184.
[9]
(18352/07)
[2009] ZAGPPHC 88 (18 June 2009).
See also
Sibuqashe v
Minister of Police and Another
(527/2011 EC Bhisho) delivered on
22 October 2015.
[10]
(149/2015
EC Bhisho) delivered on 20 March 2018.
[11]
I
accept that this ought to have been a reference to
Mabona.
[12]
2011
(1) SACR 315 (SCA).
[13]
(182/2019
EC Grahamstown, as it then was) delivered on 19 January 2021 at para
[25].
[14]
(
756/2020)
[2021] ZASCA 161 (23 November 2021).
[15]
Or
in terms of section 43 of the Act.
Minister
of Safety and Security v Sekhoto and Another
2011
(1) SACR 315 (SCA).
See
also:
Domingo v Minister of Safety and Security
(CA429/2012)
[ 2013] ZAECGHC 54 (5 June 2013).
[16]
Minister
of Safety and Security v Seymour
2006
(6) SA 320 (SCA);
See
also:
Rudolph and Others v Minister of Safety and Security and
Another
2009 (5) SA 94 (SCA).
See
also:
Brits
v Minister of Police and Another
(
756/2020)
[2021] ZASCA 161 (23 November 2021).