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[2023] ZAFSHC 75
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Zimu v Minister of Police: Republic of South Africa (327/2021) [2023] ZAFSHC 75 (13 March 2023)
SAFLII
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number:
327/2021
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
MOJALEFA
GLEN
ZIMU
Plaintiff
and
MINISTER
OF POLICE: REPUBLIC OF
SOUTH
AFRICA
Defendant
JUDGMENT
BY:
REINDERS J
HEARD
ON:
7 OCTOBER 2022
DELIVERED
ON:
13 MARCH 2023
[1]
On 20 June 2020 the plaintiff, Mr Mojalefa Glen Zimu, was arrested by
members of the
South African Police Service (“SAPS”)
without a warrant of arrest. The plaintiff instituted action
proceedings against
the Minister of Police (the defendant) claiming
damages arising from his alleged unlawful arrest and detention.
[2]
It is common cause that subsequent to his arrest plaintiff was
detained at the Phuthaditjhaba
Police Station until his first
appearance in court on 22 June 2020 on charges of pointing of a
firearm, malicious damage to property
and assault with the intent to
do grievous bodily harm. Hereafter he was detained at the Harrismith
Correctional Centre until 29
June 2020 when he was released on bail.
[3]
The defendant admits the arrest
and subsequent detention of plaintiff, but disputes any
unlawfulness
thereof. More specifically, reliance is placed on s 40(1)(b) of the
Criminal Procedure Act 51 of 1977 (the CPA) which
stipulates 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 …”
[4]
I was called upon to adjudicate whether the arrest as mentioned and
the subsequent
detention of plaintiff was lawful and, in the event it
being found that such was wrongful and unlawful, the liability of the
defendant
for the damages so suffered.
[5]
To prove his case plaintiff testified and called two of his family
members. The defendant
presented the evidence of members of the SAPS,
namely Detective Constable ML Mokoena (Constable Mokoena) and NO
Makalima (Constable
Makalima).
[6]
Constable Mokoena testified that she was the investigation officer
(IO) in the matter
and was on duty on 20 June 2020 when she received
note of a complaint that had been laid.
6.1 She
was furnished with a police docket containing a sworn statement of
the complainant Ms NR R [....] (“
N [....]”), a “SAP5”
(firearm licensing) and perjury form. She read the statement, the
upshot thereof relating
to an incident that occurred on 18 June 2020
at 21h00 during an electricity outage when complainant was allegedly
assaulted by
a group of five people inside her residence after her
assailants had kicked down the kitchen door. This had followed upon a
gunshot
that was heard by her, her daughter M [....] R [....] (“
M [....]”) and neighbours (including one “Dikgang”).
Although it was dark and she could not physically see any of these
assailants she was able to recognise the voice of an ex-boyfriend
of
M [....], called Mojalefa. She was assaulted with sticks, hit with
stones against her forehead (causing her to bleed) and she
noticed
two of her assailants were armed with firearms. She and her child M
[....] 1 were ordered to lay down on the floor and
avoid eye contact
with the assailants. The following morning, she noticed a brown-gold
gun cartridge, picked it up with toilet
paper and kept it with her
until she went to the police station to report the incident.
6.2
According to Constable Mokoena, she met with the complainant and her
daughter at the Community Centre (a police
station) and interviewed
them (“the interview”). The complainant relayed her
version, and Constable Mokoena took a
statement from M [....], who
merely confirmed that an incident had taken place on said date, but
having heard a gunshot she ran
to the neighbour’s house with
her child. It was dark and she did not see the assailants or how many
they were.
6.3
Constable Mokoena accepted during cross-examination that it was her
duty to investigate and establish what
exactly had happened before
any arrests could be made. She did not deny the following: that she
had accepted the complainant’s
version of recognising the
plaintiff by his voice as the truth; there was no urgency to have the
plaintiff arrested; despite complainant’s
affidavit on a
firearm in possession of the plaintiff, she did not enter plaintiff’s
parental home to search for the firearm;
and she did not see any
injuries on complainant’s face (with no J88 being completed to
confirm the alleged injuries). No
firearm was ever found. According
to her, Constable Makalima effected the arrest on the plaintiff out
of her own accord and not
on any instruction from her. On a question
whether both she and Constable Makalima decided to arrest the
plaintiff, she responded
that “such decision was made before”
they had gone to the plaintiff. When prompted why she did not conduct
any other
interviews (for example any neighbours or Dikgang) she
testified that there was no necessity to do so. Despite the
mentioning in
complainant’s sworn affidavit of a shell casing,
she did not request such casing and nothing to follow up was done in
this
regard. On the basis of complainant’s voice recognition of
the plaintiff, she decided to “serve” the complainant
“by
taking the accused person to court”, and arresting him “was
the only way to secure his attendance”.
[7]
Constable Makalima testified that on 20 June 2020 she was the
detective on standby
and reported for service at 10h00. She was
informed that a case had been opened and “it was alleged that
the perpetrator
is known to the complainant.” She was taken to
the Community Centre where the complainant and her daughter were
present.
Constable Mokoena conducted an interview with and posed
questions to the complainant and M [....]. M [....] indicated that
she
knows where plaintiff resides and indeed pointed same out when
members of the SAPS accompanied her there. Upon knocking on the door
the plaintiff was informed that he was being arrested on the strength
of charges laid against him by the complainant, which charges
(pointing of a firearm, malicious damage to property and assault with
the intent to do grievous bodily harm) she “had seen
on the
docket” which she had taken with her to plaintiff’s
residence.
[8]
During cross-examination Constable Mokoena testified that although
she did not read
the docket she was present during the interview. She
could however only recall that Constable Mokoena asked N [....] “how
does she know the plaintiff” with the reply that she “doesn’t
know him very well”. What caused her to be
suspicious was when
she heard that during the week plaintiff had threatened M [....]
(whom she referred to as “the victim”)
with violence. I
will revert back to the evidence tendered by Constable Makalima.
[9]
The defendant bore the onus of proving that the said arrests were
lawful. In
Duncan
v Minister of Law and Order
[1]
it was held that:
“
The
so-called jurisdictional facts which must exist before the power
conferred by s 40 (1) (b) of the present Act may
be
invoked,
are as follows:
(1)
The arrestor must be a peace officer.
(2)
He must entertain a suspicion.
(3)
It must be a suspicion that the arrestee committed an offence
referred to in Schedule 1 to the Act (other than one particular
offence).
(4)
That suspicion must rest on reasonable grounds.”
[10]
The Constitutional Court in
Zealand
v Minister of Justice and Constitutional Development and Another
[2]
by mouth of Langa, CJ held that:
“
The
constitution enshrines the right to freedom and security of the
person, including the right not to be deprived of freedom arbitrarily
or without just cause, as well as the founding value of freedom…
The respondent then bore the burden to justify the deprivation
of
liberty, whatever form it may have taken.”
[11]
Whether the arresting officer held a reasonable suspicion entails the
following test as held
in
Ingram
v Minister of Justice
[3]
:
“
The words,
‘reasonable suspicion’ may tend to indicate some
subjective test to be applied; however, that is not so;
the test as
to whether “reasonable suspicion” could have existed and
did exist, it to be determined by an objection
standard, namely that
of the reasonable man with the knowledge and experience of a peace
officer based on the facts and circumstances
then known to the
arresting officer.”
[12]
The crucial question to be asked was stated in
Mabona
and Another v Minister of Law and Order and Others
[4]
as follows (at 658 E - G):
“
Would a
reasonable man in the second defendant’s position and possessed
with the same information have considered that there
were good and
sufficient grounds for suspecting that the plaintiffs were guilty of
conspiracy to commit robbery or possession of
stolen property knowing
it to be stolen?
The reasonable man will therefore analyse
and assess the information at his disposal critically, and he will
not accept 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 justify an arrest.
This is
not to say the information at his disposal must be of sufficiently
high quality and cogency to engender in him conviction
that the
suspect is in fact guilty.
The section requires suspicion
and not certainty. However, the suspicion must be based on solid
grounds.”
And
further at 658 E - G:
“
The test of
whether a suspicion is reasonably entertained within the meaning of
s40(1)(b)
of the
Criminal Procedure Act 51 of 1977
is
objective.
”
(My own emphases.)
[13]
Moreover, the quality and source of the Arresting Officer’s
information is to be considered
critically.
[5]
[14]
It is common cause that the plaintiff was arrested without a warrant.
Despite any other versions
tendered before me on the identity of the
police officer who effected the arrest, it is the defendant’s
case that Constable
Makalima was the arresting officer as testified
by both herself and Constable Mokoena. Applying the aforementioned
case law to
the facts, Constable Makalima’s conduct in my view
fell short of a reasonable police officer in the circumstance armed
with
the information she had at the time. I say so for the following
reasons:
14.1 According to
Constable Makalima she (and ostensibly other colleagues) was informed
by Constable Mokoena of “a suspect
wanted for pointing of a
firearm and malicious damage to property.” She confirmed during
cross-examination that she did not
read the complainant’s
statement in the docket, but was present during the interviews that
Constable Mokoena conducted with
both the complainant and her
daughter. What she could recall from the interviews were limited to
two aspects: Firstly, when complainant
was asked how the plaintiff
was known to her, complainant answered that she “did not know
the plaintiff very well’,
but that her daughter knew where the
plaintiff resided. Secondly, according to the complainant, the
alleged perpetrator (whom she
had allegedly identified by voice
recognition as per a statement made to an unknown police officer and
without any indication that
the services of an interpreter was
utilised) was an ex-boyfriend of the complainant’s daughter who
had made threats of violence
during the week preceding the alleged
incident. The alleged threats were not mentioned by either
complainant or M [....] 2, not
captured under oath in the witness
statement of M [....] 2, nor a supplementary witness statement on
this issue by the complainant.
This was the totality of the
information that she was armed with when arresting the plaintiff. Her
arresting statement sworn to
shortly after the arrest, did not
include any reasons as to why she had arrested the plaintiff, but
merely that he was arrested.
During her testimony she added that
plaintiff refused to answer any of her questions upon her and her
colleagues’ arrival
at his parental residence, indicating that
he wished to exercise his right to representation by a lawyer which
prompted her to
arrest him. According to Constable Makalima the
offences which plaintiff were arrested for, was as a result of the
interviews which
led her to the conclusion that the violence was
serious, ostensibly domestic violence (hence her reference to the
complainant’s
daughter Manthaba as “the victim”
instead of the complainant). In my view, the suspicion harboured by
Constable Makalima
was rather that the plaintiff had committed
domestic violence and that was why she arrested him. Put differently,
the arrest of
plaintiff for pointing of a firearm, malicious damage
to property and assault with the intent to do grievous bodily harm,
was not
what she intended arresting plaintiff for. Neither the
complainant nor her daughter testified. As was the case with
Constable Mokoena,
apart from the limited information at the
interviews that she (Constable Mokoena) had, no other investigations
were done by Constable
Makalima to dissipate or confirm her
suspicion. No evidence was presented by either of the two constables
that there was an urgency
to have the plaintiff arrested immediately.
It took a maximum of three hours from the time that the docket was
received by Constable
Mokoena until the plaintiff was arrested.
Information could have been further investigated and the arrest held
over for later.
The end results were that the state prosecutor
elected not to proceed and charges against the plaintiff were
withdrawn. I am of
the considered view that Constable Makalima was
not at liberty to have arrested the plaintiff under these
circumstances, and accordingly
the arrest was unlawful.
14.2 In passing I
might mention that, on the evidence of Constable Mokoena, should I
have found that she was in fact the arresting
officer (and tested
against the applicable principles) I would likewise have found that
she could not have objectively harboured
a reasonable suspicion that
the plaintiff had committed the offences. Despite my finding that the
arrest was unlawful however,
both constables in my view ought to be
commended for their prompt response in taking their duty to serve the
community, seriously.
Violence against women is rife in our country-
but that does not mean that members of the SAPS in effecting an
arrest without a
warrant, should not apply the imperatives imposed on
them to act lawfully in doing so.
[15]
It follows that I am satisfied that the plaintiff should be
compensated for his unlawful arrest.
The finding as aforementioned
that the arrest by the defendant was unlawful however does not
automatically lead to the inference
that the detention of the
plaintiff was also unlawful. In
MR
v Minister of Safety and Security
[6]
it was held at paragraph [39] that “
arrest
and detention are separate legal processes. The fact that both result
in someone being deprived of his or her liberty,
does not make
them one legal process
.”
[16]
The liability of the defendant for unlawful detention of the
plaintiff should be determined by
applying the principles of legal
causation as comprehensively dealt with by the Constitutional Court
in
De
Klerk v Minister of Police
.
[7]
“
In
cases like this, the liability of the police for detention post-court
appearance 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. It is these public-policy
considerations that 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.
In addition, every matter
must be determined on its own facts — there is no general rule
that can be applied dogmatically
in order to determine liability.”
[17]
The first period of detention relates to plaintiff’s detention
from his arrest until his
first court appearance, whilst the second
entails the period post his court attendance until his release on
bail. Counsel for plaintiff
submitted that defendant should be held
liable for the entire period of detention from 20 June 2020 to 29
June 2020. In support
of his contention reliance was placed on the
pleadings. As stated in paragraphs [1] and [2] herein above, the
defendant admitted
that plaintiff was arrested without a warrant on
20 June 2020, thereafter detained at Phuthaditjhaba Police Station
until 22 June
2022 followed by his detention at the Harrismith
Correctional Facilities until his release on 29 June 2020. The said
averments
were likewise admitted by defendant at a pre-trial
conference held on 9 May 2022. As defendant is bound by its pleadings
as well
as his admissions in this regard during the pre-trial
conference
[8]
, so the argument
went, the defendant is liable for compensation for plaintiff’s
detention from 20 June 2020 to 29 June 2020.
[18]
It was submitted by counsel for defendant that defendant’s plea
should be read in conjunction
with its plea in paragraph10.2 where it
answered: “In amplification of the denial above, the Defendant
pleads that the arrest
and detention were lawful, and further the
detention of the Plaintiff was in accordance with
Section 50
(1) of
(
sic)
Criminal Procedure Act No, 51 of 1988 and further
detention of the Plaintiff was at the instance of the Court.”
Plaintiff
pleaded in paragraph 6 of the particulars of claim that the
arrest and detention were unlawful in that the members of the SAPS
did not “…investigate the matter properly…;
and/or there were no grounds to suspect that the Plaintiff had
committed and offence.” Plaintiff pleaded a further three
alternatives hereto. The amplification on which defendant relies
in
paragraph 10.2 of its plea, was pleaded in respect of the third
alternative, namely paragraph 9 of the plaintiff’s particulars
of claim dealing with defendant’s non-compliance with the SAPS
Standing Orders (General) 341, in that their goal was not,
amongst
others, to prevent plaintiff from committing any further offences or
protection of the plaintiff. The latter alternative
was not the case
presented before me by plaintiff and upon which I based my finding
that the arrest was unlawful. Despite this
however, it is not the end
of the determination of the defendant’s liability for the two
periods of detention.
[19]
The defendant’s submissions in par [17] above, is in my view
not dispositive of the question
of the defendant’s liability
for the entire period of detention. Reliance on the pleadings as
stated herein above for a finding
that the detention of plaintiff
after his first court appearance as well as the period until his
release on bail are consequently
and without any further adjudication
of the evidence before court unlawful, is in my view misplaced. It
would negate the causality
test as enunciated in
De Klerk
(
supra
).
[20]
In
Mahlangu
v Minister of Police
[9]
the Supreme Court of Appeal held (at [41]) as follows:
“
Public-policy
considerations … limit liability for the continued judicial
detention to the stage where it could reasonably
be expected of the
plaintiffs to have pursued the bail application to finality.”
[21]
Constable Mokoena as IO testified that she completed the
pro forma
A6-form which was thereafter placed in the police docket and
provided to the state prosecutor before the plaintiff’s first
court appearance following his arrest. During cross-examination she
was confronted therewith although there was a mark in the provided
for tick box that she is of the view that plaintiff can be released
on bail, crossed out the reference that she was opposed to
bail being
granted. Constable Mokoena explained that it had been mistakenly done
and that she indeed had indeed not opposed to
the granting of bail
for the plaintiff as indicated on the form. It is evident from the
rest of the A6-form that Constable Mokoena,
amongst others, had
indicated that plaintiff had a fixed address, is easy to trace, was
co-operative with the police, post no danger
to a person/community
and will not interfere with witnesses. In my view the aforementioned
is consistent with Constable Mokoena’s
testimony that she did
not oppose bail. From the evidence before me on the notes made by the
presiding magistrate, the postponement
for consideration of the
plaintiff’s release on bail, was not at the instance of the
defendant, but the decision of the presiding
officer at the time.
[22]
In reaching the conclusion as I did that the arrest of
the plaintiff was unlawful, I considered all of the factors
as
indicated in paragraph [16] for a determination of the reasonableness
of the suspicion held by Constable Makalima. The question
thus is
whether there is a causal link between the unlawful arrests and the
detention of the plaintiff that followed as a result
of the
determined unlawful arrest. In my view in respect of the detention
such causal link is evident as, had it not been for the
unlawful
arrest, the plaintiff would not have been deprived of his right to
freedom for the time from his arrest until he appeared
before the
magistrate. The unlawful arrest of the plaintiff resulted therein
that the plaintiff was unlawfully detained causing
him to suffer
damages. Accordingly, I am of the view that the plaintiff should be
compensated for his unlawful detention by the
defendant in respect of
the period of detention from 20 June 2020 to 22 June 2020 only.
[23]
The plaintiff claimed that he suffered general damages in the amount
of R 400 000-00 for
unlawful arrest and detention as a global
figure for
contumelia
, loss of amenities, pain and suffering
for the period of nine days. The claims for special damages for legal
fees and emotional
stress and psychological trauma were abandoned.
[24]
Counsel for plaintiff supplied me with case law in respect of damages
awarded by our courts for
unlawful arrest and detention to serve as a
helpful guide in making an award, and I considered same. The correct
approach to be
followed is to have regards to all the facts of a
particular case and to determine the
quantum
of damages thereon as was held in
Rudolph
and Others v Minister of Safety and Security and Another
.
[10]
[25]
Plaintiff testified that the conditions in the
holding cells where he was detained from his arrest until
he appeared
in court on 22 June 2022, were very unfavourable. He had to sleep on
the floor with one blanket only and was detained
with four to five
people in the same cell. Moreover, the bathroom facilities were not
in a working condition and the toilet did
not flush. After his arrest
and detention, he experienced bad dreams, feared police vehicles and
became heavy hearted. It is trite
that a determination for damages
for
injuria
,
especially as the kind of
injuria
in matters like these, cannot be determined with mathematical
precision. Damages are not to punish the defendant, but are awarded
to “
deter
and prevent future infringements of fundamental rights by organs of
state. They are a gesture of goodwill to the aggrieved…
”
[11]
Taking into account the living conditions in custody, the period of 2
days spent in custody and relevant previous rewards, I am
of the view
that an amount of R 30 000-00 would constitute a fair and
appropriate compensation to the plaintiff.
[26]
I am indebted to counsel for both the plaintiff and defendant for
their concise and able heads
of argument. There is no reason why
costs should not follow the result. Mr De Klerk pressed on me to
include the reasonable travelling
and accommodation costs for
attending the trial, in respect of counsel and the plaintiff. The
plaintiff had travelling costs to
Bloemfontein to attend the trial.
He should not be out of pocket for having done so. I am however of
the view that counsel’s
cost should best be left in the
discretion of the Taxing Master.
[27]
Wherefore the plaintiff’s claims succeed as follows:
1.
The defendant is ordered to pay an amount of R 30 000-00
(thirty-thousand-rand)
to the plaintiff for unlawful arrest and
detention.
2.
Such payment to be effected before or on 1 May 2023.
3.
Should payment not be effected in respect of orders 1 and 2 before or
on 1 May
2023 the aforementioned amount will bear interest at the
rate
a
tempore morae
calculated from date of this
order.
4.
The defendant is ordered to pay the plaintiff’s taxed party and
party costs
on a High Court scale, such costs to include the
reasonable expenses of the plaintiff in attending to trial.
C
REINDERS, J
On
behalf of plaintiff:
Adv MCC de Klerk
Instructed by:
Loubser van Wyk Inc
c/o Jacobs Fourie Inc
BLOEMFONTEIN
On
behalf of plaintiff:
Adv PS Mphuloane
Instructed by:
State Attorneys
BLOEMFONTEIN
[1]
1986 (2) SA 805
(A) at 818H
[2]
[2008] ZACC 3
;
2008 (4) SA 458
(CC) at paragraph 24
[3]
1962 (3) SA 225
(W) at 229G - 230A. See Duncan
supra
at 811H - I
[4]
1988 (2) SA 654 (SE)
[5]
Mabona
supra
at 658 E - G
[6]
2016 (2) SACR 540 (CC)
[7]
2020 (1) SACR 1
(CC) at [63]
[8]
Saayman v Road Accident Fund
2011 (1) SA 106
(SCA) MEC for Economic
Affairs, Environment andTourism, Eastern Cape v Kruizenga
2010 (4)
SA 122
(SCA) at 126F
[9]
2020 (2) SACR 136 (SCA)
[10]
2009
(5) SA 94
(SCA)
at paragraphs [26] - [29]
[11]
Mahlangu
and Another v Minister of Police
2021 (2) SACR 595
(CC) at paragraph
[50]