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[2024] ZAECQBHC 14
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Payi v Minister of Police and Another (2063/2019) [2024] ZAECQBHC 14 (22 February 2024)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
[EASTERN
CAPE DIVISION, GQEBERHA]
Case
No: 2063/2019
In
the matter between:
PHINDILE
PAYI
PLAINTIFF
and
THE
MINISTER OF POLICE
1
ST
DEFENDANT
THE
NATIONAL DIRECTOR OF PUBLIC
2
nd
DEFENDANT
PROSECUTIONS
JUDGMENT
Pakati
J
Introduction
[1]
The plaintiff instituted an action for damages against the Minister
of Police and the National
Prosecuting Authority, the first and
second defendants, claiming an amount of R300 000-00 for the alleged
unlawful arrest and detention
on 13 August 2018, payment in the sum
of R2,5million for further detention from 15 August 2018 until 12
September 2018, and an
amount of R500 000-00 for malicious
prosecution.
[2]
The members of the South African Police Services (“the SAPS”)
arrested the plaintiff
without a warrant on 13 August 2018, for
allegedly committing the offences of kidnapping and rape. He was
detained at Motherwell
Police Station. The members of the first
defendant and the second defendant were acting in the course and
scope of their employment.
[3]
In his particulars of claim, the plaintiff alleged that on 15 August
2018, the matter was postponed
until 24 August 2018, for formal bail
application at the instance of both the first and second defendants.
They opposed his release
from custody. He was then transferred to St
Albans Prison, where he was further detained. On 24 August 2018, .his
bail application
was again postponed to 28 August 2018 at the
instance of the public prosecutor, acting in concert with the
investigating officer.
On 28 August 2018, the plaintiff was in
attendance and the plaintiff’s bail application was again
remanded to 12 September
2018, at the specific request and instance
of the public prosecutor acting in concert with the investigating
officer. On 12 September
2018, despite there being no change to his
personal circumstances, the public prosecutor and the investigating
officer were no
longer opposed to the plaintiff’s release on
bail.
[4]
In the amended plea filed on 24 March 2020, the first defendant
pleaded to the plaintiff’s
amended particulars of claim dated
13 February 2020, as follows:
(a) The first defendant
admits that the plaintiff was lawfully arrested without a warrant
after he was pointed out by the complainant
for being involved in
criminal activity. The arrest and detention were justified by the
provisions of s 40 (1) (b) of the Criminal
Procedure Act, 51 of 1977
(“the CPA”).
(b) The plaintiff was
lawfully arrested and detained for having committed kidnapping, an
offence referred to in schedule 1 of the
CPA.
(c) The complainant
pointed out the crime scene as the plaintiff’s residence.
(d) She also pointed out
Mr Thobela Beyi (“Beyi”) as the person who allegedly
kidnapped and raped her at the plaintiff’s
residence.
(e) The first defendant
denies that the plaintiff’s arrest was wrongful, unlawful, and
unjustified.
(f) The arresting
officer, Sergeant Siyabulela Mnyango (“Sgt Mnyango”), was
a peace officer as defined in the Act. He
had a reasonable suspicion
that the plaintiff had committed a Schedule 1 offence of kidnapping.
(g) The first defendant
denies that the plaintiff was unlawfully held at Motherwell Police
Station.
(h) Regarding claim 2,
the second defendant admits that the plaintiff and his co-accused
appeared in court for the first time on
15 August 2018. Their rights
were explained to them, and they elected to apply for legal aid. The
matter was then postponed
for legal aid and a formal bail application
to 24 August 2018. They were remanded in custody. On 24 August 2018,
they appeared
in court and the matter was postponed to 04 September
2018, for legal aid and a formal bail application. Even on this day,
they
remained in custody. On 04 September 2018, the case was
postponed to 07 September 2018, for a formal bail application. On 07
September
2018, it was remanded to 12 September 2018for a formal bail
application.
(i)
On 12 September 2018, the bail proceedings in terms
of schedule 6 of
the CPA, proceeded against the plaintiff and his co-accused.
They had the
onus
to satisfy the court that exceptional
circumstances existed which in the interest of justice permitted
their release. However,
on 12 September 2018, the second defendant
was no longer opposed to the plaintiff’s release on bail.
(j) The first and second
defendant deny that they set the law in motion against the plaintiff
thereby acting with malice.
[5]
It is common cause that on 13 August 2018, the plaintiff was arrested
by the police and detained
at Motherwell Police Station until 15
August 2018, when he appeared in court for the first time. It is also
common cause that the
plaintiff remained in custody until he was
released on 12 September 2018, when the case against him was struck
off the roll due
to lack of evidence.
[6]
Before the trial started, the parties had agreed that there would be
no separation of merits and
quantum
.
Regarding the lawfulness of the arrest and detention, the first
defendant bore the
onus
to prove the grounds of justification.
[1]
That is so because the justification for the detention following an
arrest until a detainee’s first appearance in court continues
to rest on the police.
[2]
The
first and second defendants also have an
onus
of proving the lawfulness of the plaintiff’s continued
detention from 15 August 2018 to 12 September 2018. The general
principle
is that the
onus
rests
on the detaining officer to justify the detention because detention
is
prima
facie
unlawful.
[3]
The plaintiff bears
the
onus
only when he alleges that the arresting officer failed to exercise
his/her discretion rationally. In respect of malicious prosecution,
the plaintiff bears the
onus.
However, the parties agreed that, for their convenience, the
plaintiff would commence leading evidence in respect of the claims.
[7]
To prove his case against the defendants, the plaintiff testified and
called no witnesses to testify
on his behalf. The defendants called
the arresting officer, Sgt Mnyango, Constable Nomangesi Andries (“Cst
Andries”),
Captain Ayanda Sabane and the prosecutor, Mr Themba
Mavakala, to testify on their behalf.
The
evidence of the plaintiff
[8]
The plaintiff testified that on 12 August 2018, the day before his
alleged unlawful arrest, he
was in the company of Beyi, and one Mr
Junior, travelling in Beyi’s motor vehicle. The plaintiff
occupied the back seat.
They proceeded to a tavern in Motherwell. At
the tavern, they consumed alcohol. After a while, when the plaintiff
realised that
he had too much to drink, he went to the vehicle and
fell asleep. He was awakened by a noise caused by his companions when
they
approached the vehicle in the company of about five unknown
ladies and a male person. The complainant was amongst the ladies. The
plaintiff saw the complainant for the first time. The complainant sat
on the lap of Beyi, who occupied the front passenger seat.
After
everyone had boarded the vehicle, the plaintiff heard the occupants
of the motor vehicle talking about going to the beach.
Indeed, they
took the direction going towards the beach. When the vehicle stopped
at the beach, the male person ran out of the
vehicle saying that ‘
he
was not getting along with the beach
’ and disappeared in
the bushes. The ladies also alighted and gave chase but could not
catch up with him. They returned to
the location without him.
[9]
The plaintiff noticed that the complainant and Beyi were involved in
a love relationship because
they were kissing the whole time during
the trip. Before the vehicle reached the plaintiff’s home, some
of the ladies had
alighted. The plaintiff remained with the driver of
the vehicle and his girlfriend, the complainant and Beyi. When the
plaintiff
arrived at his home, Beyi asked for a place to sleep with
the complainant, to which the plaintiff agreed. The plaintiff, Beyi
and
the complainant alighted and proceeded to his house. Inside the
house, the plaintiff showed Beyi and the complainant the bedroom
that
they were going to occupy for the night. In the meantime, he remained
in the lounge, playing music, drinking some wine, and
doing his
laundry.
[10]
In the early hours of the morning, the complainant appeared and sat
with the plaintiff in the lounge. She
told him that she wanted to
leave. Considering that the area was unsafe, and it was still in the
early hours of the morning around
03h00, the plaintiff discouraged
her from leaving and asked her to wait a little while. He told her
that there were no taxis at
that time. He promised that he would
accompany her to get to a taxi called Jikeleza a little later. She
asked for some food from
the plaintiff, who offered her same. As she
was busy eating, she asked for some water. The plaintiff went to the
kitchen to fetch
water. In the meantime, the complainant got out of
the house and ran away. The plaintiff realised that she ran out with
his money
and two cell phones that were inside the bedroom where she
and Beyi slept. He then gave chase.
[11]
The complainant ran into a house in the neighbourhood where the
plaintiff found her, crying. He informed
the owner of the house that
the complainant ran away with his money and two cell phones. The
neighbours advised him to come later
to resolve the issue. He
returned home to continue with his laundry and found Beyi still
asleep. At approximately 06h00 or 07h00
in the morning, Beyi woke up
and left for his house. At around 08h00 in the morning, as he was
about to hang his laundry, two police
officers, Sgt Mnyango and Cst
Andries, arrived in the company of the complainant. They asked the
complainant: “
Is this the person
?” She replied in
the negative. They then asked him the whereabouts of Beyi and he told
them that he stayed in the location
but did not know where he was.
They told him that they would keep him until they found Beyi. He then
directed them to where Beyi
lived. When they ultimately found him,
the plaintiff and Beyi were arrested for rape and kidnapping. They
were kept .in custody
from that morning of 13 August 2018, until 15
August 2018, when they appeared in court for the first time. Their
case was postponed
about four times before it was struck off the roll
against the plaintiff on 12 September 2018, due to lack of evidence.
[12]
The plaintiff also testified about the bad condition of the police
cells as well as those of St Albans Prison
where he was detained.
The
evidence of Sergeant Mnyango
[13]
On 13 August 2018, Sgt Mnyango was on duty with Cst Andries at
Kamvelihle Police Station when Ms Ndileka
Kolisi reported that the
complainant informed her that she had been raped. Cst Andries
attended to her. Sgt Mnyango, Cst Andries
and Ms Kolisi proceeded to
Ms Kolisi’s house where the complainant was. On their arrival,
the complainant informed them that
she was taken by the plaintiff and
Beyi. Beyi raped her while the plaintiff was present in the house.
Sgt Mnyango contends that
he entertained a reasonable suspicion that
the plaintiff had committed an offence referred to in schedule 1 and
arrested him. He
was pointed out by the complainant as the person who
refused her to get out of the vehicle as well as his house.
[14]
During cross-examination, Sgt Mnyango conceded that the complainant
told him that it was not the plaintiff
who raped her. He confirmed
that he did not enquire further as to what the plaintiff exactly did
to her. He also confirmed that
the pointing out statement did not
state categorically what offence the plaintiff had committed. When
the complainant told him
that the plaintiff refused to open the door
to the house, he concluded that the plaintiff kidnapped her. When he
was asked whether
his suspicion was reasonable, he conceded that the
suspicion did not rest on reasonable grounds. He concluded that the
arrest was
unreasonable under the circumstances.
The
evidence of Constable Andries
[15]
Cst Andries’ evidence did not take the defendant’s case
any further. She distanced herself from the
arrest of the plaintiff
because she asserted that there was no evidence linking the plaintiff
to the commission of the offences.
She did not complete the
pointing-out statement, Sgt Mnyango did. She stated that they took
the plaintiff, Beyi and the complainant
to the police station because
they had not received sufficient information pertaining to the role
of the plaintiff.
The
evidence of Captain Ayanda Sabane
[16]
Captain Ayanda Sabane was the investigating officer of the case. On
13 August 2018, he took down the statement
of the complainant, Ms
N[…] M[…], and interviewed the plaintiff on 14 August
2018. During the interview, Captain
Sabane informed the plaintiff
that he was a suspect in a rape and kidnapping case. He confirmed
that he already had the benefit
of reading the complainant’s
statement when he interviewed the plaintiff. He disagreed that there
was no evidence implicating
the plaintiff. He said: “
His
presence at the time the complainant was pulled to the room, I take
it as if he [the plaintiff] was part of it.”
However,
during cross-examination, he confirmed what he said during bail
proceedings that there were no elements of rape and kidnapping
against the plaintiff. He added that he did not know why the
plaintiff was arrested. He also confirmed that he contradicted
himself
when he said that the plaintiff gave a condom to the
complainant because the complainant was the one who requested a
condom from
the plaintiff. He proffered no explanation for this
contradiction.
The
evidence of Temba Mavakala
[17]
Mr Mavakala, an employee of the second defendant, and acting senior
public prosecutor at the time, testified
that after reading the
statement of the complainant on 15 August 2018, his duty was to
determine whether there was a
prima facie
case against the
plaintiff and Beyi, which he did. He concluded that there was a
prima
facie
case against both. He then charged them for rape, a
schedule 6 offence and kidnapping. He also consulted with Captain
Sabane and
they decided to oppose bail. The matter was postponed for
the plaintiff and Beyi to apply for legal aid. Mr Mavakala insisted
that
the plaintiff acted with a common purpose with Beyi in the
commission of the offences. In his opinion, when the plaintiff said
he feared Beyi, that was a sign of refusing the complainant to leave.
However, he conceded that in the complainant’s statement,
there
is no detail indicating the role played by the plaintiff in the
commission of the offences.
Common
cause facts
[18]
It is common cause that the plaintiff was arrested and detained by
Sgt Mnyango, in the company of Cst Andries,
on 13 August 2018. It is
further common cause that because of his arrest, the plaintiff was
detained at Motherwell Police Station
until he appeared in court for
the first time, on 15 August 2018. The matter was remanded a few
times before it was struck off
the roll, on 12 September 2018, due to
a lack of evidence implicating the plaintiff in the commission of the
offences.
Issues
[19]
The issues for determination are whether: (i) the plaintiff was
lawfully arrested and detained in terms of
s 40(1) (b) of the CPA;
(ii) the defendants were liable for the plaintiff’s continued
detention from 15 August 2018 to 12
September 2018 when the matter
was struck off the roll, and (iii) the second defendant, acting in
concert with the first defendant,
maliciously prosecuted the
plaintiff.
The
lawfulness of the arrest
[20]
S 40(1) (b) of the CPA provides that a peace officer may without a
warrant arrest any person whom he reasonably
suspects of having
committed an offence referred to in schedule 1, other than the
offence of escaping from lawful custody. The
arrest would be lawful
if the arresting officer successfully establishes the jurisdictional
factors, and he/she may invoke the
power conferred by s 40(1) (b) to
arrest the suspect unless the plaintiff demonstrates that the
discretion to arrest him/her was
exercised unlawfully.
[4]
The jurisdictional requirements for a lawful arrest under s
40(1) (b) defence are that:
20.1
the arrestor must be a peace officer.
20.2
the arrestor must entertain a suspicion.
20.3 the
suspicion must be that the suspect committed a schedule 1 offence;
and
20.4 the
suspicion must rest on reasonable grounds.
[21]
If the arresting officer succeeds in establishing these
jurisdictional factors, the arrest would be lawful,
unless the
plaintiff establishes that the discretion to arrest him/her was
exercised in an unlawful manner.
[5]
If one or more of the jurisdictional factors is/are not met, the
arrest would be unlawful. The relevant enquiry is whether the
suspicion was reasonable thereby successfully establishing the
jurisdictional factors.
[6]
[22]
In the instant case, it is undisputed that Sgt Mnyango is a peace
officer; that kidnapping is a schedule
1 offence; and that he
entertained a suspicion that the appellant had committed an offence
of kidnapping. In dispute is whether
his suspicion rested on
reasonable grounds, which must be considered against the applicable
principles and the relevant factual
matrix.
Whether
the suspicion was based on reasonable grounds
[23]
In
Mabona
and Another v Minister of Law and Order and Others,
[7]
Jones J held:
“
The test of
whether a suspicion is reasonably entertained within the meaning of s
40(1) (b) is objective (
S v Nel and Another
1980 (4) SA 28
E
at 33E-H). Would a reasonable man in the second defendant’s
position and possessed of the same information have considered
that
there were good and sufficient grounds for suspecting that the
plaintiff was guilty of conspiracy to commit robbery or possession
of
stolen property knowing it to have been stolen? It seems to me that
in evaluating his information a reasonable man would bear
in mind
that the section authorises drastic police action. It authorises an
arrest on the strength of a suspicion and without the
need to swear
out a warrant, i.e. 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.”
(Own emphasis)
[24]
It is undisputed that the plaintiff was not the driver of the vehicle
and from the statement of the complainant,
nowhere does she say that
the vehicle was driven on the instructions of the plaintiff. She
stated that when she and her companions
tried to escape, it was the
driver of the vehicle who pulled her by her hair and assaulted her on
the back with an empty bottle
forcing her to go to the vehicle. Even
when the drivers exchanged, it was still not the plaintiff who drove
the vehicle but one
Bulelani. This is according to the statement of
the complainant. The first time she mentioned the plaintiff she said:
“
I left with the owner of the house with the first driver
male. He instructed me to enter the house, inside I seated on the
couch
at lounge (sic), he said I must go to the bedroom. The African
male who was the first driver he instructed me to take off all my
clothes. I asked to the other male (sic) who was the owner of the
house for a condom, he gave us
.”
[25]
In the above quotation, there is nothing that suggests that the
plaintiff had anything to do with forcing
the complainant to alight
from the vehicle to go to his house. Similarly, there is no
indication that he refused to let her go
from his house, at any
stage. In her statement, she stated that when she asked the plaintiff
to open the door for him, he said
that he was afraid of Beyi because
he is a gangster and stays in the location, which is denied by the
plaintiff. After she ran
out of the plaintiff’s house and
noticed that the plaintiff was chasing her, she said: “
I saw
the owner of the house asking for help from the community members of
Kamvelihle area
.” S also did not mention that the door was
locked and could not go out or that the plaintiff kidnapped her, as
Sgt Mnyango
wants the court to believe. Instead, Sgt Mnyango
testified that he arrested the plaintiff ‘
based on what the
complainant informed me. She said that the plaintiff refused her to
leave or let her go and also of what happened
in the car. To me, that
amounted to kidnapping because he took away her rights.’
Surprisingly, this does not appear in Sgt Mnyango’s
statement which he himself wrote. In paragraph 2 of his statement,
the following is recorded: “
On Monday 2018-08-13 at about
07:15 I went to house 2[…] M[…] Street, Ikamvelihle
where the complainant, Ms N[…]
M[…], pointed out
suspect Phindile Payi to me. I arrested him, explained his rights as
per SAPS 14/26/08/2018. He was free
from injuries
.” When he
got to the plaintiff’s house he said: “
Upon entering
the house, the complainant said: ‘Here is Phindile, the one I
was running from in the morning.’ I informed
the plaintiff that
we were arresting him for kidnapping.”
On both occasions,
there were no details regarding what the plaintiff did to the
complainant. There is also no indication that
he informed the
plaintiff of his rights when he arrested him. In his own version, he
did not give the plaintiff an opportunity
to explain and tell him his
side of the story before effecting the arrest.
[26]
Sgt Mnyango testified that when Ms Kolisi arrived at the charge
office, she was attended to by Cst Andries,
and he was not close to
them when Ms Kolisi made the report. He did not hear what it was all
about. Strangely, he is the one who
effected the arrest. At the time,
the complainant’s statement had not even been taken down except
what he said the complainant
informed him which is neither contained
in her statement nor his. Clearly, Sgt Mnyango had no information to
analyse or assess
at the time of the arrest. He simply accepted what
he said he was told without checking where it could be checked. It is
therefore
surprising that without an examination of this kind, he
allowed himself to entertain a suspicion which would justify the
arrest
of the plaintiff. He also did not say that he investigated the
information, as a starting point, to obtain
prima facie
proof
that an offence of kidnapping had been committed.
[27]
When Sgt Mnyango was asked if he enquired from the complainant what
she meant when she said the plaintiff
did not allow her to alight
from the vehicle, he said he did not. He confirmed that it was not
the plaintiff who held the complainant
by the hair. He conceded that
if he had asked for the details from the complainant, that would have
helped in formulating a reasonable
suspicion. He would also have
established that the door was unlocked. He admitted that the
complainant did not mention in her statement
that she was prevented
from leaving the house. He admitted further that when he arrested the
plaintiff the only information at
his disposal, was what he was told
by the complainant that she was raped in the house and no further
detail, especially regarding
the alleged kidnapping. He confirmed
that when he arrested the plaintiff, he insisted that he had done
nothing wrong. Instead of
considering what he was telling him, he
told him that he would explain whatever he wanted to say in court.
[28]
During cross-examination, it was put to Cst Andries that when she
wrote the name of the suspect as Thobela
Beyi, in the investigation
diary (annexure “A”) at page 96, it was because there was
no information implicating the
plaintiff. She said: “
I only
had one suspect there, it was Thobela. However, the arresting officer
[Sgt Mnyango]
decided to include the plaintiff. He said he was
going to arrest the plaintiff for kidnapping and Thobela, for
kidnapping and rape.
I asked him the reason why he was arresting the
plaintiff because I only mentioned Thobela. Then Sgt Mnyango said to
me the plaintiff
was also involved in all this thing. That is when I
informed him that he will make the arrest and not me because I only
saw Thobela
as the suspect in this case of kidnapping and rape.”
She confirmed the evidence of Sgt Mnyango that nowhere was it written
in the complainant’s statement that the plaintiff prevented
the
plaintiff from leaving the house.
[29]
Adv Cetywayo
submitted that Sgt Mnyango did not set out the
basis for the suspicion, on reasonable grounds, that the plaintiff
took part in
the kidnapping and rape of the complainant.
Adv Dala
argued that the plaintiff failed to plead any facts upon which the
attack on Sgt Mnyango ‘s discretion to arrest him was
based.
[30]
It is trite that an arrest or detention is
prima facie
wrongful. The evidence shows that Sgt Mnyango’s belief that the
plaintiff had committed a schedule 1 offence did not rest
on
reasonable grounds, as shown above. When he arrested the plaintiff, a
docket had not been opened and the complainant’s
statement had
not been obtained. I therefore conclude that the first defendant
failed to discharge the
onus
to justify the arrest. I say so
because the arrest was not carried out to secure the plaintiff’s
attendance to court for
prosecution to commence, but he was arrested
because he was pointed out by the complainant.
Detention
[31]
Detention is, in and by itself, unlawful. The
onus
rests
on the detaining officer to justify it.
[8]
The Constitutional Court remarked that the question whether the
applicant’s detention was consistent with the principle of
legality and his right to freedom and security of the person in s 12
of the Constitution, is a constitutional matter. S 12(1) of
the
Constitution guarantees that everyone has the right to freedom and
security of the person, which includes the right not to
be deprived
of freedom arbitrarily or without just cause.
[32]
The plaintiff alleges that after he was arrested, he was taken to
Motherwell Police Station where he was
detained. He alleges further
that there were no reasonable and/or objective grounds justifying his
detention. He contends that
his detention was wrongful and without
reasonable and probable cause in that Sgt Mnyango, as well as other
police officers at Motherwell
Police Station failed to apply their
minds in respect of his detention and the circumstances relating
thereto. He contends further
that Sgt Mnyango acted unreasonably in
that there was no evidence linking him to the commission of any
offence.
[33]
In
Mvu v
Minister of Safety and Security and Another
[9]
Willis J cited with approval
Hofmeyr
v Minister of Justice and Another
[10]
and remarked:
“
[10]
In
Hofmeyr v Minister of Justice
and Another
King J, as he then was,
held that even where an arrest is lawful, a police officer must apply
his mind to the arrestee's detention
and the circumstances relating
thereto, and that the failure by a police officer properly to do so
is unlawful. The minister's
appeal was unanimously dismissed by what
was then known as the Appellate Division of the Supreme Court.
It seems to me that,
if a police officer must apply his or her mind
to the circumstances relating to a person's detention, this includes
applying his
or her mind to the question of whether detention is
necessary at all. This, it seems to me, and in my very respectful
opinion,
enables one to get a better grip on an issue which has been
debated in the law reports in recent cases such as
Minister
of Correctional Services v Tobani
;
Ralekwa
v Minister of Safety and Security
;
Louw
v Minister of Safety and Security and Others
;
Charles
v Minister of Safety and Security
;
Olivier
v Minister of Safety and Security
;
and
Van Rensburg v City of
Johannesburg
. On the question of
unlawful detention per se, as a concept to be considered separately
from the question of arrest, it is, in
my respectful view,
instructive to read the
Tobani
case
in which Jones and Leach JJ, together with Govender AJ, upheld, in an
appeal to the full court, the judgment of Froneman
J. I also agree
with the general approach of Horwitz AJ in the
Van
Rensburg
case even though, in
that case, the facts are distinguishable from the present one at
least inasmuch as a warrant for arrest
had been issued.”
[34]
Adv Cetywayo
submitted that the plaintiff was detained because
of an unlawful arrest. Sgt Mnyango effected the arrest despite the
entry in the
investigation diary that the suspect was Beyi.
Adv
Cetywayo
submitted further that the wrongful act of Sgt Mnyango
and Cst Andries, of arresting the plaintiff resulted in his further
detention
after his first appearance.
[35]
Regarding the condition of the holding cell in Motherwell Police
Station and in St Albans Prison in which
the plaintiff was detained,
Adv Dala
submitted that the issue of the conditions of the cells was not
pleaded by the plaintiff in his particulars of claim. For this
assertion, he relied on
Jacobs
v Minister of Safety and Security (
CA
327/2012) [2013] ZAECGHC 95
[11]
where the Court as per Eksteen J held:
“
[29] The function
which pleadings fulfil in litigation was discussed in
Imprefed
(Pty) Ltd v National Transport Commission
1993 (3) SA 94
(A).
Kumleben JA and Nienaber JA, in their joint judgment, at 107C-E
state:
At the outset it need
hardly be stressed that: ‘The whole purpose of pleadings is to
bring clearly to the notice of the Court
and the parties to an action
the issues upon which reliance is to be placed…’”
[36]
In reply,
Adv Cetywayo
submitted that the conditions of the
cells were part of what the plaintiff had to go through because of
the unlawful arrest.
[37]
In
his particulars of claim, the plaintiff did not mention the condition
of the cells in which he was detained. He mentioned it
during his
testimony.
In
South
British Insurance Co Ltd v Unicorn Shipping Lines (Pty) Ltd
[12]
Holmes JA (
Wessels
JA, Trollip JA, Corbett JA, and Galgut AJA, concurring) stated
:
“
However,
the absence of such an averment in the pleadings would not
necessarily be fatal if the point was fully canvassed in
evidence.
This means fully canvassed by both sides in the sense that the Court
was expected to pronounce upon it as an issue.”
[38]
After the plaintiff testified about the condition of the cells in
which he was kept, the defence cross-examined
him about it.
Adv
Dala
put it to him that the defendants would deny whatever he
said regarding the condition of the cells. In any event, the
plaintiff
testified about his experience in custody, which cannot be
divorced from the fact that he was in custody. That he was arrested
and detained is uncontroverted, as alluded to earlier. Moreover, the
defendants will not be prejudiced as both parties fully canvassed
it.
[39]
Sgt Mnyango and Cst Andries knew that there was no evidence
linking the plaintiff to the commission of the offences when Sgt
Mnyango
arrested and detained him. Nevertheless, Sgt Mnyango
proceeded and arrested and detained him. This is unacceptable as it
undermines
the constitutional right to freedom and security of a
person including the right not to be deprived of freedom arbitrarily
or without
just cause.
Further
detention from 15 August 2018 to 12 September 2018
[40]
It is common cause that after his arrest, the plaintiff appeared in
court on 15 August 2018, for the first
time. He alleged that the
investigating officer as well as the prosecutor were in possession of
the docket and yet they opposed
his release from custody which
resulted in the matter being remanded in custody to 24 August 2018,
for a formal bail application.
On 24 August 2018, the matter was
again remanded at the request and instance of the prosecutor acting
in concert with the investigating
officer and he was transferred to
St Albans Prison where he was further detained until 28 August 2018.
It was further postponed
to 12 September 2018 for a formal bail
application at the instance and request of the prosecutor acting in
concert with the investigating
officer. On 12 September 2018, without
there being a change in his personal circumstances, the prosecutor
and the investigating
officer were no longer opposed to his release
on bail. On this day, it was struck off the roll against him due to
lack of evidence,
as stated.
[41]
Adv Cetywayo
submitted that the wrongful arrest of the
plaintiff by Sgt Mnyango and Cst Andries, the prosecutor, acting
together with W/O Sabane
to oppose his release on bail, led to his
further detention which caused harm to the plaintiff.
[42]
In response to the above, the defendants stated in paragraph 15 of
the plea:
“
15. AD
PARAGRAPH 14
15.1 The plaintiff and
his co-accused, Beyi, who appeared in court on the 15
th
of
August 2018 were explained their rights to bail and elected to apply
for the assistance of legal aid and the matter was postponed
to 24
August 2018 for a formal bail application.”
[43]
In reply,
Adv
Dala
argued that the authority to further detain a suspect is within the
discretion of the court. For this assertion, he relied on Sekhoto
[13]
where the court held that while it is clearly established that the
power to arrest may be exercised only for the purpose of bringing
the
suspect to justice, the arrest is only one step in that process. Once
an arrest has been effected, the peace officer must bring
the
arrestee before a court as soon as reasonably possible and at least
within 48 hours (depending on court hours). Once that has
been done,
the authority to detain that is inherent in the power to arrest has
been exhausted. The authority to detain the suspect
further is then
within the discretion of the court.
[44]
Theron J in
Bryan
James De Klerk v the Minister of Police
,
[14]
remarked:
“
[81]
Constable
Ndala subjectively foresaw the precise consequence of her unlawful
arrest of the applicant. She knew that the applicant’s
further detention after his court appearance would ensue. She
reconciled herself to that consequence. What happened
in the
reception court was not, to Constable Ndala’s knowledge, an
unexpected, unconnected and extraneous causative factor
– it
was the consequence foreseen by her, and one which she reconciled
herself to. In determining causation, we are
entitled to take
into account the circumstances known to Constable Ndala. These
circumstances imply that it would be reasonable,
fair, and just to
hold the respondent liable for the harm suffered by the applicant
that was factually caused by his wrongful arrest.
For these
reasons, and in the circumstances of this matter, the court
appearance and the remand order issued by the Magistrate
do not
amount to a fresh causative event breaking the causal chain
.
”
[45]
The learned Judge concluded:
[15]
“
[86]
The
crucial fact in this matter is that Constable Ndala subjectively
foresaw the harm arising from the mechanical remand of the
applicant
after his first court appearance. She knew that the applicant’s
further detention after his court appearance
would be the consequence
of her unlawful arrest of him. She reconciled herself with this
knowledge in proceeding to arrest
him. In addition, she knew
that her mere note inside the docket recommending bail would amount
to nothing at this first appearance.
That the judicial
process
should
have
had a different tenor and outcome seems to me to be beside the
point. The point is that Constable Ndala knew it
would not.”
[46]
At paragraph [88] the learned Judge continued:
“
[88]
On the facts of this
case, the Magistrate concerned should not be exclusively liable for
the subsequent detention, given the original
delict by the arresting
officer and her subjective foresight of the subsequent detention and
the harm associated therewith.”
[47]
The liability of the police for the detention post-court appearance
of the arrestee should be determined
on an application of the
principles of legal causation, having regard to the applicable tests
and policy considerations. This may
include a consideration of
whether the post-appearance detention was lawful. These public policy
considerations will serve as a
measure of control to ensure that
liability is not extended too far. The conduct of the police after an
unlawful arrest, especially
if the police acted unlawfully after the
unlawful arrest of the plaintiff, is to be evaluated and considered
in determining legal
causation. Moreover, each case must be
determined on its own facts. That is because there is no general rule
that can be applied
dogmatically to determine liability.
[16]
The determination of legal causation is based on the
consideration of the various factors which
inter
alia
,
include direct consequences, reasonable foreseeability, and the
presence of a
novus
actus interveniens
.
[17]
[48]
In the present case, the arrest of the plaintiff was unlawful as it
did not consider the principle that deprivation
of liberty through an
arrest and detention is
prima facie
unlawful. Sgt Mnyango must
have known that pursuant to the unlawful arrest, the plaintiff would
routinely be remanded in custody
after his first appearance. In
addition, Captain Sabane, who was privy to the complainant’s
statement which clearly stated
that the suspect was Beyi, recommended
that bail be opposed until the 12
th
of
September 2018. In his evidence during bail proceedings on 12
September 2018, Captain Sabane stated:
“
Your Worship, with
regard to accused 2 [the plaintiff] hence I am saying I don’t,
I am not against him being granted bail
because when I read the
statement of the complainant, I don’t see him being involved in
the actual incident of rape and kidnapping.
Maybe because he chased
her out of the house and on the road the sister, the witness; maybe
that is why he was arrested because
‘A1’ statement, in
the complainant’s statement, there is nothing that implicates
him in the rape and the kidnapping
because from the tavern, they
don’t say he did anything to the bushes and back to the place
where they slept.”
[49]
Mr Mavakala, who acted as a senior public prosecutor on the first day
the plaintiff appeared in court, testified
that he did not receive
further information which would have strengthened the case against
the plaintiff between 15 August 2018
and 12 September 2018. When he
was asked from which facts he drew his conclusion, he was at pains to
explain that. Instead, he
conceded that no facts were detailing what
the plaintiff did to support his conclusion. He also could not d
irect
the court to the portions of the complainant’s statement
detailing the plaintiff’s role in the commission of the
offences. When he addressed the court on 12 September 2018, when the
plaintiff appeared in court for the formal bail application,
he said:
“
Your Worship, however in
respect of accused 2
[the
plaintiff],
Your Worship, accused 2
does not have pending cases or previous convictions and also the case
against him in terms of the merits
of the case, it is not so very
clear
.” This, to me, shows
that he did not honestly believe that the plaintiff was guilty of the
offences charged. An example of
this is shown when he continued:
“
Your Worship, the schedule in
respect of accused 1 but that changed a lot with accused 2. Accused
2, Your Worship, I argued with
my investigating officer to my
superiors trying to explain to them that nothing for this person to
be answered but they insist
so he is still on the dock now because,
not because of me or the investigating officer
(sic)
.”
[50]
The above shows that Sgt Mnyango, Cst Andries, Captain Sabane and Mr
Mavakala subjectively foresaw the harm
when the case was remanded
after the plaintiff’s first court appearance. They reconciled
themselves with that knowledge.
Mr Mavakala could not proffer a
reason why the plaintiff was not released on 15 August 2018, when he
appeared in court for the
first time.
[51]
In this case, to impose liability on the defendants for the entire
period of detention (30 days) in the circumstances
of this matter,
would not exceed the bounds of reasonableness, fairness, and
justice.
[18]
In
the circumstances, I conclude that this matter meets the criteria set
out by the Constitutional Court in
De
Klerk supra,
to hold the defendants liable for the period of 30 days for which the
plaintiff was further detained.
Malicious
prosecution
[52]
It consists in the wrongful and intentional assault on the dignity of
a person comprehending also his or
her good name and privacy.
[19]
To succeed with a malicious prosecution claim, the plaintiff must
allege and prove that; (i) the defendants set the law in motion
(instituted or instigated the proceedings); (ii) the defendant acted
without reasonable and probable cause; (iii) the defendant
acted with
malice (or
animo
inuriarum
);
and (iv) that the prosecution failed. In this instance, the plaintiff
bears the
onus
of proof to establish each, as alluded.
[20]
The plaintiff’s case was struck off the roll due to lack of
evidence linking him to the commission of the offences of kidnapping
and rape, as stated.
The
respondents set the law in motion (instituted or instigated the
proceedings)
[53]
In
Lederman
v Moharal Investments
(Pty)
Ltd
[21]
Jansen
JA
(Ogilvie
Thompson JA, Rumpff JA, Botha JA, Jansen JA and Muller AJA) held:
“
Inherent
in the concept 'set the law in motion', 'instigate or institute the
proceedings', is the causing of a certain result, i.e.
a prosecution,
which involves the vexed question of causality. This is especially a
problem where, as in most instances, the necessary
formal steps to
set the law in motion have been taken by the police and it is sought
to hold someone else responsible for
the prosecution.”
[54]
Jansen JA in Lederman
supra
quoted with approval from the
judgment of Price J in
Madnitsky v Rosenburg
1949 (1) PH J5
and said:
“
[W]hen an informer
makes a statement to the police which is wilfully false in a material
particular [sic], but for which false information
no prosecution
would have been undertaken, such an informer “instigates”
a prosecution.”
[55]
In
Waterhouse
v Shields
[22]
Gardiner J remarked:
“
The first matter
the plaintiff has to prove is that the defendant was actively
instrumental in the prosecution of the charge. This
is a matter more
difficult to prove in South Africa, where prosecutions are nearly
always conducted by the Crown, than it is in
England, where many
cases are left to the private prosecutor. Where a person merely gives
a fair statement of the facts to the
police and leaves it to the
latter to take such steps thereon as they deem fit and does nothing
more to identify himself with the
prosecution, he is not responsible,
in an action for malicious prosecution, to a person whom the person
may charge. But if he goes
further, and actively assists and
identifies himself with the prosecution, he may be liable. “The
test,” said Bristowe
J in
Baker v Christiane
1920 WLD
14
, “is whether the defendant did more than tell the detective
the facts and leave him to act on his own judgment”.
[56]
Notwithstanding
the bare denial in
the pleadings that
on 13 August 2018, the
members
of the SAPS and those of the
NPA
instigated
the prosecution against the plaintiff, the plaintiff insisted that
the defendants did so on charges of kidnapping and
rape.
57]
Regarding the liability of the first defendant, the relevant question
is whether the police did anything
more than one would expect from a
police official in the circumstances, namely, to give a fair and
honest statement of the relevant
facts to the prosecutor, leaving it
to him to decide whether to prosecute or not.
[58]
Based on the facts of the instant case, it cannot be said that the
members of the first defendant were actively
instrumental in the
prosecution of the charges against the plaintiff. It also cannot be
said that they directed their will in prosecuting
the plaintiff
thereby infringing his personality although they were aware that
there was no evidence linking the plaintiff to the
alleged offences.
[59]
The same cannot be said about the prosecutor who must pay attention
to the contents of the docket and act
with objectivity and protect
the public.
[23]
The prosecutor
was initially adamant that after reading the docket which contained
the statement of the complainant, there was
a
prima
facie
case against the plaintiff. During the bail hearing he said: “
Accused
2
[the
plaintiff]
,
Your Worship, I argued with my investigating officer to my superiors
(sic) trying to explain to them that nothing for this person
to be
answered but they insist so he is still on the dock now because not
because of me or the investigating officer [indistinct]
”.
In paragraph 65.1 of the defendants’ heads of argument,
the following can be gleaned:
“
65.1 It was the
evidence of Mr Mavakala that due to the case not being strong enough
against the plaintiff, he did not oppose the
granting of bail against
the plaintiff. However, due to the fact that the plaintiff was being
charged with a schedule 6 offence,
the plaintiff bore the
onus
of proving that there were exceptional circumstances indicating that
it would be in the interest of justice for him to be released
on
bail.”
[24]
[60]
The above is different from what Mr Mavakala testified to. He said:
“
I
read the docket. My duty was to determine whether there was a
prima
facie
case or not against the accused
persons. After considering and reading the docket I determined the
charges first and determined
that there was a
prima
facie
case against both accused. When
the docket arrived, it was written kidnapping and rape. When I made
my decision after reading the
docket, I charged both for kidnapping
and rape.”
[61]
As far as the second defendant is concerned, in terms of s 179(2) of
the Constitution, the prosecuting authority
has the power to
institute criminal proceedings on behalf of the state and to carry
out any necessary functions incidental to instituting
criminal
proceedings.
In
Carmichele v Minister of Safety and Security and Another (Centre for
Applied Legal Studies Intervening)
[25]
Ackermann
et Goldstone JJ held:
“
72…
However,
prosecutors have always owed a duty to carry out their public
functions independently and in the interests of the public.
Although
the consideration of bail is pre-eminently a matter for the presiding
judicial officer, the information available
to the judicial
officer can but come from the prosecutor. He or she has a duty to
place before the court any information relevant
to the exercise of
the discretion with regard to the grant or refusal of bail and, if
granted, any appropriate conditions attaching
thereto.”
[62]
In this case, the prosecutor did not act independently. Although
during the trial he insisted that there
was a
prima facie
case
against the plaintiff, that is not what he conveyed to the magistrate
during the bail hearing. His opinion had changed in
that he said
there was no
prima facie
case against the plaintiff but
listened to his seniors who told him to proceed with the case even
though there was no evidence
linking the plaintiff to the commission
of the crimes.
[63]
In my view, the second
defendant instigated the prosecution against the plaintiff because
the prosecutor knew that there was no
evidence linking the plaintiff
to the commission of the offence and yet he was actively instrumental
in continuing with charging
the plaintiff.
Absence
of reasonable and probable cause
[64]
Reasonable and probable cause, in the context of malicious
prosecution, means an honest belief founded on
reasonable grounds
that the institution of proceedings is justified. The concept
therefore involves both a subjective and an objective
element.
[26]
In
Beckenstrater
v Rotter and Theunissen
[27]
Schreiner
JA laid down the test for reasonable and probable cause and said:
“
When
it is alleged that a defendant had no reasonable cause for
prosecuting, I understand this to mean that he did not have such
information as would lead a reasonable man to conclude that the
plaintiff had probably been guilty of the offence charged; if,
despite his having such information, the defendant is shown not to
have believed in the plaintiff's guilt, a subjective element
comes into play and disproves the existence, for the defendant, of
reasonable and probable cause.”
[65]
It cannot be said that either subjectively or objectively the
prosecutor had an honest belief founded on
reasonable grounds that
the institution of proceedings was justified. He is the one who
argued with his seniors that the plaintiff
had no case to answer, as
alluded. In the circumstances, the plaintiff succeeded in discharging
the
onus
of proving the absence of reasonable and probable
cause.
[66]
This leads me to the next issue,
animus iniuriandi
.
Animus
iniuriandi
[67]
To succeed in this claim, the plaintiff must allege that the
defendant intended to injure him (either
dolus
directus or indirectus
).
Animus
iniuriarum
includes not only the intention to injure but also the consciousness
of wrongfulness. Van Heerden
JA
in
Minister
of Justice and Constitutional Development and Others v Moleko
[28]
remarked:
“
[63]
In this regard
animus injuriandi
(intention) means
that the defendant directed his will to prosecuting the
plaintiff (and thus infringing his personality),
in the awareness
that reasonable grounds for the prosecution were (possibly) absent,
in other words, that his conduct was (possibly)
wrongful
(consciousness of wrongfulness). It follows from this that the
defendant will go free where reasonable grounds for the
prosecution
were lacking, but the defendant honestly believed that the plaintiff
was guilty. In such a case the second element
of
dolus
,
namely of consciousness of wrongfulness, and therefore
animus
injuriandi
, will be lacking. His mistake therefore excludes the
existence of
animus injuriandi.”
[68]
In
Patel
v National Director of Public Prosecution and Others
[29]
Ledwaba DJP held:
“
[27]
A prosecutor should assess whether there is sufficient and admissible
evidence to provide a reasonable prospect of a successful
prosecution, otherwise the prosecution should not commence. According
to the DPP”s Prosecution Policy Code of Conduct, Guidelines
and
Directing under the heading: When the role of the prosecutor is
described, it is stated that:
“
Prosecutors
must
at all times
act in the interest of the community…
[Members
of the Prosecution Authority] must act impartially and …in
good faith..
.” Emphasis added.
[69]
In
casu
,
the prosecutor did not believe that the plaintiff was guilty, hence
he argued with his seniors and was not opposed to the plaintiff’s
release on 12 September 2018 when the matter was struck off the roll.
The prosecutor also did not carry out his public functions
independently and in the interests of the plaintiff, as stated. He
did not act in accordance with the requirements of the constitution
and did not have regard for the rights of the plaintiff. Such rights
include his rights to bail and not to be detained arbitrarily
and
without just cause.
[30]
[70]
The conduct of the prosecutor was a deliberate intentional act in
that he directed his will to prosecute
the plaintiff thus infringing
his personality, as mentioned above. In other words, his conduct was
wrongful, and he was conscious
that his action was wrongful. He
foresaw the possibility that he was acting wrongfully, but continued
to act, recklessly as to
the consequences of his conduct. He was
fully aware of the fact that by doing so, the plaintiff would in all
probability be injured
and his dignity negatively affected. I am
satisfied that the plaintiff proved
animus iniuriandi
on the
part of the second defendant.
Quantum
[71]
In assessing the
quantum
of damages, Bosielo AJA, as he then was, in
Minister
of Safety and Security v Tyulu
[31]
held:
“
[26] 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
injuria
with
any kind of mathematical accuracy. Although it is always helpful to
have regard to awards made in previous cases to serve
as a guide,
such an approach if slavishly followed can prove to be treacherous.
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 (
Minister
of Safety and Security v Seymour
2006
(6) SA 320 (SCA)
at
325 para 17;
Rudolph
and Others v Minister of Safety and Security and Another.
2009
(5) SA 94
(SCA)
([2009]
ZASCA 39) paras 26 - 29)”.
[72]
It is undisputed that the plaintiff was arrested on 13 August 2018,
and appeared in court for the first time
on 15 August 2018 and
detained for two days. He was detained for a further 30 days before
he was released on 12 September 2018.
The plaintiff is relatively
young. He was arrested in full view of his neighbours. Cst Andries
testified that when the plaintiff
was removed from the police
station, about 50 members of the community were watching. The
plaintiff testified that after his arrest,
the mother of his two
children now refers to him as a rapist. He is unable to maintain a
love relationship as he is referred to
as a rapist. In the community,
he is no longer seen in the same light as he was before his arrest.
[73]
Concerning deprivation of liberty, Erasmus J in
Ntshingana
v Minister of Safety and Security and Another
[32]
referred to the general principles that the amount of damages to be
awarded when determining the
quantum
of damages in matters which concern unlawful deprivation of liberty,
is in the discretion of the court, amounts to an estimate,
is
calculated
ex
aequo et bono
and is based on the extent and nature of the violation of the
personality. The plaintiff further testified regarding the unhygienic
condition in the cells wherein he was incarcerated.
[74]
As far as
quantum
is concerned, I have considered the relevant
facts, as well as the age of the appellant, his personal and social
circumstances,
the circumstances of the arrest, the nature and
duration, the fact that when he was arrested there was no evidence
linking him
to the commission of any crime, yet he remained in
custody for 30 days. I have also made a comparison of the previous
awards in
similar cases like this one, which serves as a useful
guide. However, each case must be treated according to its own
merits. I
am of the view that a fair and appropriate award of damages
for the appellant’s unlawful arrest and initial detention is an
amount of R100 000-00 (one hundred thousand rand). For further
detention from 15 August to 12 September 2018 (30 days) a fair and
appropriate award is an amount of R800 000-00 (eight hundred thousand
rand). Having regard to the circumstances of this case and
having
considered the previous awards in cases of this nature, R300 000-00
(three hundred thousand rand only) is fair and reasonable
for damages
suffered by the plaintiff in claim 3 for malicious prosecution.
Costs
[75]
Adv
Cetywayo
submitted that costs should follow the result. He submitted further
that due to the complexity of the matter and the amount of
quantum
involved, it was necessary to employ two counsel. He further
submitted that the defendants should be ordered to pay costs on a
scale between attorney and client to show displeasure in the conduct
of the police for the concessions they made that the arrest
of the
plaintiff was not justifiable. For this assertion, he relied on
Gerrit
Smit v The Road Accident Fund
[33]
where Eksteen J remarked:
“
Generally, I think
that the computation and proof of a claim for loss of earning
capacity does usually involve complex issues of
fact and law. Where
the claim is large, then it is usually a reasonable and prudent
precaution for a plaintiff to engage the services
of two counsel.”
[76]
Adv Dala
submitted that the issues of this matter were
relatively uncomplicated, and that the plaintiff’s claim should
be dismissed.
He submitted further that this matter was not a complex
one deserving of two counsel. He referred to the
SCA in
Minister of Police v Gqamane
[2023] ZASCA 61
where costs of two
counsel were disallowed on the basis that the matter was not
sufficiently complex to justify such an award. He
submitted further
that costs should only be costs of one counsel.
[77]
The case referred to by
Adv Cetywayo
above, dealt with
computation of loss of earning capacity and is distinguishable from
the instant case.
I am of the view that this
matter was not complicated enough to justify the employment of two
counsel even though the
quantum
of damages sought is a substantial amount of money. In my view, there
is no justification for costs on a scale as between attorney
and
client. Costs on a scale as between party and party are proper, in
the circumstances.
[78]
In the circumstances, I issue the following order:
Claim1
1.
The first defendant is ordered to pay the plaintiff, Mr
Phindile Payi, a sum of R100 000-00 (one hundred thousand rand only),
for
unlawful arrest and detention of two days, from 13 August 2018 to
15 August 2018.
2.
Interest
a tempora morae
at the
prescribed legal rate from the date of judgment.
Claim 2
3.
The defendants are ordered to pay an amount of R800 000-00
(eight hundred thousand rand only) for further detention of 30 days
from
15 August 2018 to 12 September 2018, jointly and severally the
one paying the other to be absolved.
4.
Interest
a tempora morae
at the
prescribed legal rate from the date of judgment.
Claim 3
5.
The second defendant is ordered to pay an amount of R300
000-00 (three hundred thousand rand only) for malicious prosecution.
6.
Interest
a tempora morae
at the
prescribed legal rate from the date of judgment.
7.
The defendants are ordered to pay costs of the action jointly
and severally the one paying the other to be absolved.
BM
PAKATI
JUDGE
OF THE HIGH COURT, EASTERN CAPE DIVISION, GQEBERHA
APPEARANCE:
COUNSEL
FOR PLAINTIFF:
ADV
CETYWAYO WITH ADV MASHIYI
INSTRUCTED
BY:
NTANZI
ATTORNEYS INC
COUNSEL
FOR DEFENDANT:
ADV
DALA
INSTRUCTED
BY:
STATE
ATTORNEY, GQEBERHA
DATE
HEARD:
22,
23, 24, 25, 26, 29, 30, 31 MAY 2023
, 01 JUNE 2023
, 13 JULY 2023
JUDGMENT
DELIVERED:
22
FEBRUARY 2024
[1]
Minister
of Law and Order v Hurley
1986 (3) SA 569
(A) 589E-F.
[2]
See
Minister of Police and
v
Another
v Du Plessis
[2013] ZASCA 119
;
2014 (1) SACR 217
(SCA) at para 17.
[3]
See
JE
Mahlangu and Another v Minister of Police [2021] ZACC10 at para [32]
where it was held that once it has been established that
the
constitutional right not to be deprived of one’s physical
liberty has been interfered with, the deprivation is prima
facie
unlawful, and the infringer bears the onus to prove that the
interference was justified.
[4]
In
Minister
of Safety and Security v Sekhoto and Another
2011
(1) SACR 315
(SCA)
,
Harms DP quoted with approval the dictum in
Duncan
v Minister of Law and Order
1986 (2) SA 805
(A) at 818H-J and 819A-B where Van Heerden JA held:
“If the jurisdictional requirements are satisfied, the peace
officer
may invoke the power conferred by the subsection, i.e., he
may arrest the suspect. In other words, he then has a discretion as
to whether or not to exercise that power (cf
Holgate-Mahomed
v Duke
[1984] 1 All ER 1054
(HL) at 1057). No doubt his discretion must be
properly exercised. But the grounds on which the exercise of such a
discretion
can be questioned are narrowly circumscribed. Whether
every improper application of a discretion conferred by the
subsection
will render an arrest unlawful, need not be considered
because it does not arise in this case. All that need be said for
the
purposes of the point under consideration is that an exercise of
the discretion in question will be clearly unlawful if the arrestor
knowingly invokes the power to arrest for a purpose not contemplated
by the Legislator. But in such a case, as is generally the
rule
where the exercise of a discretion is questioned, the
onus
to establish the improper object of the arrestor will rest on the
arrestee (cf
Divisional
Commissioner of SA Police, Witwatersrand Area, and Others v SA
Associated Newspapers Ltd and Another
1966 (2) SA 503
(A) at 512;
Groenewald
v Minister van Justisie
1973 (3) SA 877
(A) at 884).”
[5]
Sekhoto
supra
paras 30 and 38.
[6]
See
Nkosinathi
Justice Banda v Minister of Police N.O.
[2020]
ZAECGHC 55 para 40).
[7]
Mabona
and Another v Minister of Law and Order and Others
1988 (2) SA 654
(SE) at 658E-H; see also
Shaaban
Bin Hussein and Others v Chang Fook Kam and Another
(1969)
3 All ER 1627
(PC) the court held: “Suspicion in its ordinary
meaning is a state of conjecture or surmise where proof is lacking;
“I
suspect but I cannot prove.”
Suspicion
arises at or near the starting point of an investigation of which
the obtaining of prima facie proof is the end.”
(Own emphasis)
[8]
Zealand
v Minister of Justice and Constitutional Development and Another
[2008] ZACC 3
;
2008 (2) SACR 1
(CC)
(2008) (4) SA 458
;
2008 (6) BCLR 601)
para 24.
[9]
Mvu
v Minister of Safety and Security and Another
2009
(2) SACR 291
(GSJ) para 10
.
[10]
Hofmeyr
v Minister of Justice and Another
1992
(3) SA 108
(C
).
[11]
Jacobs
v Minister of Safety and Security
(CA
327/2012) [2013] ZAECGHC 95
para
[29].
[12]
South
British Insurance Co Ltd v Unicorn Shipping Lines (Pty) Ltd
1976
(1) SA 708
at 714G.
[13]
Sekhoto
supra
at
para 42.
[14]
Bryan
James De Klerk v the Minister of Police
[2019]
ZACC 32
para
81.
[15]
At
para 86.
[16]
See
De
Klerk
supra
at para 63.
[17]
See
De
Klerk
above at para 65.
[18]
De
Klerk
supra
at para 87.
[19]
Heyns
v Venter
2004
(3) SA 200
(T) 208B.
[20]
Minister
of Safety and Security v Lincoln
(682/19)
[2020] 3 All SA 341
(SCA);
2020 (2) SACR 262
(SCA) (5 June 2020).
[21]
Lederman
v Moharal Investments (Pty) Ltd
1969
(1) SA 190
(A) at 197A.
[22]
Waterhouse
v Shields
1924
CPD 155
at 160.
[23]
Minister
of Police and Another v Du Plessis
2014
(1) SACR 217
(SCA)
.
[24]
Section
60(11)
(a) of the
Criminal Procedure Act 51 of 1977
provides that
the court shall order that the accused be detained in custody until
he/she is dealt with in accordance with the
law, unless the accused,
having been given a reasonable opportunity to do so, adduces
evidence which satisfies the court that
the interests of justice
permit his/her release.
[25]
Carmichele
v Minister of Safety and Security and Another (Centre for Applied
Legal Studies Intervening)
[2001] ZACC 22
;
2002 (1) SACR 79
(CC) at para 72.
[26]
Minister
of Justice and Constitutional Development and Others v Moleko
2009
(2) SACR 585
(SCA) para 20.
[27]
Beckenstrater
v Rotter and Theunissen
1955
(1) SA 136
(A) 136A-B.
[28]
Minister
of Justice and Constitutional Development and Others v Moleko
[2008]
3 All SA 47
(SCA)[28] at 63.
[29]
Patel
v National Director of Public Prosecution and Others (Unreported
Judgment:
(4347/15)
[2018] ZAKZDHC 17;
2018 (2) SACR 420
(KZD) (13 June 2018) at 31 para
27);
see
also Minister of Police and Another v Du Plessis
2014
(1) SACR 217
(SCA) at para 34 where the court held that a prosecutor
had to pay attention to the contents of his docket. He has to act
with
objectivity and protect the public interest.
[30]
See
January
v Minister of Safety and Security
2012 (1) SACR (ECP) para 32.
[31]
Minister
of Safety and Security v Tyulu
2009 (5) SA 85
(SCA) para 26.
[32]
Ntshingana
v Minister of Safety and Security and Another
[2021]
JOL 50340 (CC).
[33]
Gerrit
Smit v The Road Accident Fund
[2014]
ZAECPEHC para 16.