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2023
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[2023] ZAECBHC 22
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Mlombo v Minister of Police (190/2022) [2023] ZAECBHC 22 (8 August 2023)
IN THE HIGH COURT OF
SOUTH AFRICA
EASTERN CAPE DIVISION,
BHISHO
Case No: 190/2022
In
the matter between:
ASANDILE
MLOMBO
Plaintiff
and
MINISTER
OF POLICE
Defendant
JUDGMENT
Bloem J
[1]
The issue is whether the plaintiff was
lawfully detained between the date of his first appearance in court
and his next appearance.
The material facts are largely common cause
or undisputed. They are that on 5 September 2021 Asandile
Mlombo, the plaintiff,
was arrested without a warrant by a member of
the South African Police Service on a charge of malicious damage to
property.
He was detained until he appeared in court at
Mdantsane the following day, when the magistrate ordered his release
from custody
and warned him to appear in that same court at 08h30 on
15 October 2021. Instead of being released, the plaintiff was
remanded
in custody at the East London Correctional Centre until 15
October 2021, when he appeared in court. The magistrate then
again
ordered his release from custody and warned him to appear in
court on 8 November 2021.
[2]
The plaintiff instituted a claim for
damages against the Minister of Police, the defendant, for damages
arising from his arrest
and detention before his first appearance in
court and his detention after his first appearance in court. He
subsequently
abandoned his claim for unlawful arrest and detention
before his first appearance and proceeded only with his claim for
damages
arising from his detention after his first appearance in
court.
[3]
In his particulars of claim the plaintiff
alleged that on 6 September 2021, the court orderlies, as members of
the South African
Police Service, took him into custody after the
magistrate had ordered his release and had him transferred to the
above correctional
centre where he was detained until his next
appearance in court on 15 October 2021.
[4]
In his amended plea, the defendant denied
that the court orderlies wrongfully and unlawfully detained the
plaintiff. He pleaded
that the court orderlies acted on a
warrant for the plaintiff’s detention (referred to as a J7 in
the plea and the evidence)
“
that
was provided by the court clerks
”,
that “
the court orderlies were
furnished with a J7 that requires that an accused be taken to prison
and same was done
” and that, “
in
order for the court orderlies to release an accused, they ought to be
furnished with a J6, and in this case they were furnished
with a
J7
.” The defendant
accordingly denied that he was liable to pay damages to the plaintiff
arising from his detention after
his first appearance. In his
replication the plaintiff denied the lawfulness of the warrant for
his detention (the warrant).
He challenged the warrant on the grounds
that there was no legal or factual basis for the issue thereof since
the magistrate had
ordered his release from custody; and that the
court orderlies were obliged to execute the magistrate’s order.
The plaintiff
also disputed the authenticity of the warrant because
inter alia
it was not signed by the magistrate who had ordered his release on
warning.
[5]
The defendant decided to lead evidence
first. Thandoxolo Mketo, who was the defendant’s only
witness, testified that
he is a member of the South African Police
Service for about 18 years, performing duties as a court orderly at
the magistrate’s
court at Mdantsane. His experience at
that court is that, after a magistrate had ordered that a person be
kept in custody
to appear in court on a later date, the clerk of the
court would prepare a warrant for that person’s detention and
hand it
to the magistrate for signature. The clerk of the court would
then hand the warrant to him for execution. Before executing the
warrant, he would not look at other court documents, like the charge
sheet or criminal record book. An official stamp of the
South
African Police Service would be affixed to the warrant because,
without an official stamp on it, a person will not be received
at a
correctional centre. He did not know who stamped the warrant in
question. He testified that warrant officer Selana worked
with him as
a court orderly on the day in question.
[6]
The plaintiff testified that, when he
appeared in court on 6 September 2021, the magistrate said that he
must go to prison.
When he was asked in cross-examination why
he claimed damages from the defendant, his response was that the
magistrate had issued
an order that he should be released, but
despite that order, he was kept in custody.
[7]
The magistrate who presided over
proceedings on 6 September 2021, Anton Pretorius, testified that
he postponed the case to
15 October 2021 and ordered the plaintiff’s
release on warning. He said that it would not have made sense for him
to order
the plaintiff to be remanded in custody when the interests
of justice demanded his release on warning. He explained that a
warrant for detention is completed by the clerk of the court and
signed by him. Each magistrate has his or her own official
stamp which should be affixed to a warrant for detention. He
has been doing so for the last four to five years. In this case
he
neither signed the warrant nor was his official stamp affixed to it.
[8]
Neziswa Manahla testified that she has been
working for the Department of Justice as an administration clerk for
the past 21 years.
Her duties as clerk of the court included
entering particulars of every criminal case coming before the
presiding magistrate on
that day, in the criminal record book,
preparing warrant for arrest forms, as well as warrants for detention
and warrant for release
(J6). Before the commencement of proceedings
on 6 September 2021, she entered the particulars of each of the four
cases that served
before the magistrate on that day in
the criminal record book. She made entries under the headings
of the case
number, mass number, name of the police station from
which the case emanated, name of the accused and the offence with
which each
of the accused had been charged. She does not, and
did not in this case, complete the entries under the headings
‘verdict,
sentence or order’. Those entries are
completed by the magistrate at the conclusion of each case. The
entries
under the heading ‘remarks’ are completed by a
court orderly. She testified that she was in court when the
magistrate
wrote “RW 15/10/2021” under the heading
‘verdict, sentence or order’, which stands for ‘remand
on
warning’. It means that the magistrate ordered the
plaintiff’s release from custody and warned him to appear in
court on 15 October 2021. No entry was made under the heading
‘remarks’ in respect of the plaintiff and the fourth
accused whose particulars were entered in the criminal record book
for that day. The two of them were ordered to be released from
custody and warned to appear in court on future dates. She
testified that warrant officer Selana signed under the heading
‘remarks’ in respect of the two remaining accused persons
whose particulars were also entered in the criminal record
book. The
magistrate had ordered that those two accused persons be kept in
custody.
[9]
Ms Nxazonke-Mashiya, counsel for the
defendant, submitted that the plaintiff’s claim should be
dismissed because his detention
was
prima
facie
lawful. That submission was made
because the court orderlies detained the defendant pursuant to a
warrant for his detention.
Her submission was accordingly that
the mere production of the warrant justified the plaintiff’s
detention. The plaintiff
challenged the validity of the warrant on
the grounds set out in his replication.
[10]
In
Cresto
Machines (Edms) Bpk v Die Afdeling Speur-Offisier, SA Polisie,
Noord-Transvaal
[1]
the
court dealt with a search warrant which the police (the respondent)
had obtained from a magistrate to attach the appellant’s
pin-tables (the machines). The respondent alleged that the
appellant or its lessees of the machines permitted the machines
to be
used in a manner that contravened certain statutory provisions.
The police intended prosecuting them and intended using
the machines
as evidence in such prosecutions. Trollip JA said that it was
clear that the warrant was issued under section
42(1) of the Criminal
Procedure Act 56 of 1955 (the 1955 Criminal Procedure Act). Section
42(1) of the 1955 Criminal
Procedure Act read as follows:
“
If
it appears to a judge of a superior court, a magistrate or a justice
on complaint made on oath that there are reasonable grounds
for
suspecting that there is upon any person or upon or at any premises
or in any receptacle of whatever nature within his jurisdiction-
(a)
stolen
property or anything in respect of which any offence has been, or is
suspected on reasonable grounds to have been committed,
whether
within the Republic or elsewhere; or
(b)
anything
in respect of which there are reasonable grounds for believing that
it will afford evidence as to the commission, whether
within the
Republic or elsewhere, of any offence or that it was used for the
purpose of or in connection with such commission of
any offence; or
(c)
anything
in respect of which there are reasonable grounds for believing that
it is intended to be used for the purpose of committing
any offence,
the
may issue a warrant directing any policeman named therein or all
policemen to search such person, premises or receptacle and
any
person found in or upon such premises, and to seize any such thing if
found, and to take it before a magistrate to be dealt
with according
to law
.”
[11]
It was held that, without a warrant, the
onus of proof would have been on the respondent to establish that the
attachment of the
machines was legally justified, but that the
warrant for attachment served “
to
discharge the onus of proof initially resting upon the respondent”
and that consequently, “
the
ultimate onus rested on the appellant to demolish the defence of the
existence of the warrant
”. The
magistrate exercised his discretion in favour of the respondent by
issuing the warrant. It appeared to him that
there were
reasonable grounds for suspecting that the machines were used in
connection with the commission of offences or that
they would afford
evidence as to the commission of those offences. That was the
factual basis upon which the warrant was
issued. The legal
basis for the issue of the warrant was section 42 of the 1955
Criminal Procedure Act.
[12]
In
Minister
van Polisie v Goldschagg
[2]
the respondent failed to appear in court after a summons, intended
for him, had been served on his brother’s employee.
The
respondent did not know that he was required to appear in court.
When he failed to appear in court in accordance
with the prescripts
of the summons, the magistrate issued a warrant for his arrest under
section 309(3) of the 1955 Criminal Procedure
Act. Section 309(2) and
(3) read as follows:
“
(2)
Except where otherwise specially provided by any law, the service
upon an accused of any summons or other
process in a criminal case in
an inferior court shall be made by the prescribed officer, either by
delivering it to the accused
personally or, if he cannot conveniently
be found, by leaving it for him at his place of business or usual or
last known place
of abode with some inmate thereof. The service
of the summons may be proved by the evidence on oath of the person
effecting
the service or by his affidavit or by due return of service
under his hand.
(3)
If any person fails to appear at the hour and on the day appointed
for his appearance to answer any
charge, and the court is satisfied
upon the return of the person required to serve the summons that he
was duly summoned or if
it appears from evidence given under oath
that he is evading service of the summons, or if it appears from such
evidence that he
attended but failed to remain in attendance, the
court in which the said criminal proceedings are conducted, may issue
a warrant,
directing that he be arrested and brought, at a time and
place stated in the warrant, or as soon thereafter as possible,
before
the court or any magistrate
.”
[13]
It was held that the onus was on the
respondent to prove the unlawfulness of his arrest and detention as
an essential element.
The validity of that warrant was indeed
challenged. The magistrate issued the warrant under section
309(3) when the respondent
failed to appear in court. He was
satisfied, based on the return of service, that the respondent had
been duly summoned to
appear on the day appointed for his
appearance. His non-appearance in court was sufficient for the
warrant to be issued under
that section. There was accordingly
also a factual and legal basis for the issue of the warrant for the
respondent’s
arrest and detention.
[14]
In
the present matter there was no legal or other basis for the issue of
the warrant for the plaintiff’s detention.
On the
contrary, the magistrate had ordered his release from custody.
In terms of section 12(1)(a) of the Constitution, everyone
has the
right to freedom and security of the person, including the right not
to be deprived of freedom arbitrarily or without just
cause. In
Zealand
v Minister of Justice and Constitutional Development and Another
[3]
it
was held that the right not to be deprived of freedom arbitrarily or
without just cause affords a person substantive protection.
Langa CJ had the following to say in that regard:
“
That
right requires not only that every encroachment on physical freedom
be carried out in a procedurally fair manner, but also
that it be
substantively justified by acceptable reasons. The mere fact
that a series of magistrates issued orders remanding
the applicant in
detention is not sufficient to establish that the detention was not
‘arbitrary or without just cause
’”
.
[15]
In
S
v Bogaards
[4]
it
was held that it is an order of court, rather than a detention
warrant, that is the legal basis for a person’s detention.
Khampepe J said that it does not follow that where a warrant, based
on a court order, is held to defective, the detention necessarily
becomes unlawful. The learned Judge found that “
the
efficacy of the administration of the criminal justice system
requires that the lawfulness of detention depends on the order
of a
court rather than the validity of a warrant
”
and that “
it
is the court order, not the warrant, that is the legal basis for a
person’s detention and it cannot be that, where the
warrant is
defective, detention necessarily becomes unlawful
.”
Although a warrant serves the important purpose of guarding against
unlawful detention, it does not mean that, where a
court orders the
detention of an accused person, his or her detention becomes unlawful
because of a defective warrant.
[16]
The mere production of a warrant for a
person’s detention is not a complete defence to justify such
person’s detention.
It is settled law that, where a
defendant detains a plaintiff, the onus is on the defendant to
justify that detention. Where
a defendant produces a warrant
for the plaintiff’s detention, such detention would be
prima
facie
lawful. Without the warrant
being successfully challenged, the warrant would legally justify the
plaintiff’s detention.
The onus would then be on the
plaintiff to prove that his or her detention was unlawful. That
could be done by establishing,
for instance, that the warrant was not
based on an order of court. What is important is that the
warrant must be based on
a court order for the detention to be
lawful. It follows that, in the absence of a court order as the
basis for the warrant
for a person’s detention, such a warrant
is invalid and accordingly unlawful. In this case, the
plaintiff established
that there was no basis for the warrant for his
detention. In my view, he has successfully established that the
deprivation
of his freedom was without a just cause. His right
contained in section 12(1)(a) of the Constitution was infringed.
His detention was not legally justified and accordingly unlawful.
[17]
Ms Nxazonke-Mashiya submitted that if it is
found that the warrant is unlawful, the plaintiff’s claim
should nevertheless
be dismissed because he failed to establish that
the police caused his detention. Counsel submitted that it was
the clerk
of the court who prepared the warrant and that the
orderlies merely executed it. It was submitted that the
Minister of Justice
should accordingly have been cited as a defendant
as he is vicariously liable for the wrongful conduct of employees of
the Department
of Justice, such as Ms Manahla. That submission
is not supported by the facts and cannot be sustained. Warrant
officer
Mketo testified that the warrant was prepared by the clerk of
the court. Ms Manahla was the clerk of the court on the day
in
question. She testified that she did not prepare the warrant.
Her undisputed evidence was that the warrant was not
completed
in her handwriting and that she did not take the warrant to another
magistrate to be signed.
In my view,
the probabilities favour Ms Manahla’s version. She had
access to the charge sheet and the criminal record
book in which the
magistrate made entries that the plaintiff’s case was remanded
to 15 October 2021 and that he was warned
to appear in court on that
day. She testified that she would not have prepared a warrant
for the plaintiff’s detention
after the magistrate had ordered
his release from custody. Warrant officer Mketo, on the other
hand, testified that he had
no access to any document other than the
warrant. In the circumstances, I find that Ms Manahla did not
prepare the warrant
for the plaintiff’s detention. It is
unknown who prepared it and under what circumstances. Warrant
officer Mketo
testified that, because warrant officer Selana signed
the criminal record book, he must have received the warrant for the
plaintiff’s
arrest. No reason was given for warrant
officer Selana’s failure to testify. He might have been
able to explain
the circumstances under which the warrant was
obtained and executed by them, since warrant officer Mketo was unable
to do so.
[18]
When the warrant was executed, warrant
officer Selana in all probability knew that the magistrate had
ordered that the plaintiff
should be released from custody.
Before the execution of the warrant, he signed the criminal record
book wherein the magistrate’s
orders in respect of the four
accused persons, who appeared before him on the day in question, were
recorded. He must have
seen that the magistrate had ordered the
plaintiff’s release, yet he, according to warrant officer
Mketo, nevertheless received
the warrant which they executed.
With his knowledge of the magistrate’s order, warrant officer
Selana should not have
executed the warrant without investigating how
it came into existence. Had he done so, he would have realised
that the warrant
was invalid.
[19]
In the circumstances, the defendant is
liable for the plaintiff’s unlawful detention which was caused
by the court orderlies,
as members of the South African Police
Service. Since the plaintiff was in unlawful detention from
6 September 2021
to 15 October 2021, he must be compensated
for the harm caused by such detention.
[20]
The plaintiff’s evidence about the conditions under
which he was detained in the above correctional centre was
unchallenged.
No evidence was given about his personal
particulars. From a copy of his identity document it appears
that he was born on
1 October 1996. He testified that he
was frightened because it was the first time that he was held in a
correctional
centre. There were between 22 and 25 inmates in
the cell, sharing one toilet. There were fewer beds than
inmates, which
caused some of them to put two mattresses together on
which three of them could sleep. Their meals consisted
primarily
of two slices of bread, pap and coffee, which would
sometimes be cold. There was a positive note to his otherwise
negative
experience. He testified that, because of his
experience, he knows that he should not commit offences.
[21]
The
primary purpose of compensation is not to enrich the aggrieved party
but to offer him or her consolation for his or her injured
feelings.
The damages awarded should accordingly be commensurate, as far as
possible, with the harm and consequences thereof.
Counsel
referred to various authorities
[5]
to serve as a guide in the assessment of the quantum of the
plaintiff’s damages. I have had regard also to
Phungula
v Minister of Police
[6]
wherein an adult male was detained for 24 days and awarded R75 000
on 8 June 2018;
Woji
v Minister of Police
[7]
wherein an adult male who was unlawfully detained for 13 months was
awarded R500 000 on 11 September 2014;
Alves
v LOM Business Solutions (Pty) Ltd and Another
[8]
wherein a 34-year-old fitter and turner who was in custody for
between 12 and 15 months longer than he should have been because
the
Department of Justice and Constitutional Development failed to ensure
that the record of proceedings required for his appeal
was prepared
within in reasonable time was awarded R300 000 on 9 September
2011;
Rahim
and 14 Others vs Minister of Home Affairs
[9]
wherein one plaintiff who was in detention for 30 days was awarded
R20 000 and another who was in detention for 35 days was
awarded
R25 000 on 29 May 2015; and
Richards
v Minister of Police
[10]
wherein a 23-year-old who was 19 years old when he was exposed
to jail for the first time and detained for 115 days was granted
R500 000 on 23 October 2014 for his arrest and detention.
I have taken into account the present value of the above awards,
using the Schedule for updating previous comparable awards as read
with the Annual CPI Tables in Part II of
The
Quantum of Damages in bodily and fatal injury cases
.
[22]
Regard being had to the above authorities, the circumstances
under which the plaintiff was detained, that he was deprived of his
freedom without just cause and he was in custody for 39 days, I am of
the view that an appropriate award of damages would be R400 000.
[23]
The plaintiff was successful in his claim against the
defendant. He is accordingly entitled to the costs of the
action.
A lot of time was wasted in the presentation of the
evidence. The evidence of warrant officer Mketo, the plaintiff
and Mr
Pretorius was concluded at 14h40 on the first day of the trial
on 25 May 2023 when the case was postponed to 24 July 2023, for Ms
Manahla to testify. She testified for not more than an hour on
24 July 2023. The parties were not ready to make submissions
at
the conclusion of Ms Manahla’s evidence and requested that they
do so on the following day, when the proceedings lasted
for no more
than an hour and a half. What the parties did over three days
could easily have been done in two days.
The hearing should
accordingly have lasted no longer than two days, inclusive of the
presentation of oral submissions.
[24]
In the result, it is ordered that:
1.
The plaintiff’s detention, caused by members of the South
African Police Service, from 6 September
2021 to 15 October 2021 was
unlawful.
2.
The defendant shall pay the plaintiff:
2.1 R400 000
as damages for his unlawful detention;
2.2 interest
on R400 000 at the legal rate from the date of judgment to date
of payment;
2.3 costs of the
action, such costs shall be limited, insofar as appearances are
concerned, to two days.
GH BLOEM
Judge of the High
Court
For
the plaintiff:
Mr
L Rusi,
instructed
by Magqabi Seth Zita Inc,
East
London and SZ Sigabi & Associates,
Qonce.
For
the defendant:
Ms
Z Nxazonke-Mashiya,
instructed
by the State Attorney,
East
London.
Date
heard:
25
May 2023 and 24 and 25 July 2023
Date
of delivery of the judgment:
8
August 2023
[1]
Cresto
Machines (Edms) Bpk v Die Afdeling Speur-Offisier, SA Polisie,
Noord-Transvaal
1972
(1) SA 376
(A) at 394G and 395E.
[2]
Minister
van Polisie v Goldschagg
1981
(1) SA 37 (A).
[3]
Zealand
v Minister of Justice and Constitutional Development and Another
[2008] ZACC 3
;
2008
(4) SA 458
(CC) at par 43.
[4]
S
v Bogaards
2013(1) SACR 1 (CC) at paras 36 and 37.
[5]
The
p
laintiff’s
counsel referred to
Louw
v Minister of Safety and Security
and
Others
2006
(2) SACR 178
(T) and
van
Rooyen vs Minister of Police
(CA 332/2018) [2020] ZAECGHC 44 (26 March 2020)
,
while
the defendant’s counsel referred to
Rahim
and 14 Others v Minister of Home Affairs
(
supra
);
Minister
of Safety and Security v Tyulu
2009
(5) SA 85
(SCA);
Ngwenya
v Minister of Police
(924/2016)
[2017] ZANWHC 78
(2 November 2017). I have been
unable to access to the cases of
Gulane
and
Matshe
respectively
v
Minister of Police
which have been referred to in paragraph 57 of counsel’s
written heads of argument. That paragraph seems to be a
regurgitation of a portion of paragraph 24 in
Moumakwe
v Minister of Police
(1046/2020) [2023] (ZANWHC 59) (24 May 2023) wherein Reddy AJ said
the following: “
In
Tobase
v
Minister of
Police
and
Others
CIV
APP MG 10/2021 (3 December 2021)
Hendricks
DJP
(as he then was) addressed this notion wherein the following was
stated:
[15]
In
Ngwenya
v
Minister of Police
(92412016)
[2019]
3 ZANWHC 3
(7
February 2019) this Court awarded R15 000.00 per day for unlawful
arrest and detention. The same amount
was
awarded
in the matter
of
Gulane
v Minister
of
Police
CIV
APP MG 21/2019, in an appeal which emanated from the Magistrate
Court, Potchefstroom
and
decided by
Petersen
J
et
Gura
J.
Petersen
J
et
Gura
J
did
also in the matter of
Matshe
v
Minister
of
Police,
case
number
CIV APP RC 10/2020, likewise, award an amount of R15 000.00 per day
for each of the two days that the appellant
was
detained.”
[6]
Phungula
v Minister of Police
2018 (7KS) QOD (KZP).
[7]
Woji
v
Minister
of Police
2015
(7K6) QOD 95 (SCA).
[8]
Alves v
LOM Business Solutions (Pty) Ltd and Another
2011 (6K7) QOD 1 (GSJ).
[9]
R
ahim
and 14 Others vs Minister of Home Affairs
2015 (7K6) QOD 191 (SCA).
[10]
Richards
v Minister of Police
2015
(7K6) QOD 206 (GJ).