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[2023] ZAECMKHC 31
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Pieters v Minister of Police (CA 66/2022) [2023] ZAECMKHC 31 (14 March 2023)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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SAFLII
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IN THE HIGH COURT OF
SOUTH AFRICA
EASTERN CAPE DIVISION,
MAKHANDA
NOT REPORTABLE
Case no: CA 66/2022
In the matter between:
WAYNE
PIETERS
Appellant
and
THE
MINISTER OF
POLICE
Respondent
JUDGMENT
Govindjee J
[1]
The appellant was arrested without a
warrant by members of the South African Police Service at 07h10 on 8
December 2018. He was
charged with ‘drunk and disorderly’
conduct and detained at the Kabega Park Police Station until 15h45
that day. He
instituted an action against the respondent for wrongful
and unlawful arrest without a warrant. The respondent denied
liability,
averring
inter alia
that the arrest was justified and that the appellant had not suffered
any harm as a result of his arrest and detention.
[2]
The appellant agreed to commence
proceedings before the court a quo on the basis that his
locus
standi
had been placed in issue.
Despite the onus on the respondent to prove the justification for the
arrest, the appellant proceeded
to present his entire case for the
sake of convenience, before the respondent led its evidence.
The
trial proceedings
[3]
The
respondent admitted the arrest of the appellant on a charge of drunk
and disorderly conduct in a public place. The respondent
averred that
the arrest and subsequent detention were lawful, relying on s
40(1)
(a)
,
alternatively
s 40(1)
(b)
of the
Criminal Procedure Act, 1977
.
[1]
The alternative basis was seemingly jettisoned during the trial.
[4]
The appellant’s version was that he
had not consumed any liquor on the day in question. He had taken a
taxi from his home
in Gelvandale to Schauderville and had walked from
there to Malabar for a work-related appointment. It was during the
time that
he was walking to Malabar that he was arrested, placed in a
police van and taken to a police station. His girlfriend, Ms M[...],
testified that he had left home at 05h00 that morning and had not
been drinking.
[5]
Constable Nel was the only witness called
by the respondent. On his version, the appellant had been lying
asleep on a pavement in
the Kabega Park area, with his feet in the
street. The appellant was smelling of alcohol and was not easily
woken. Constable Nel
tried to assist him to his feet but was met with
resistance. The appellant was arrested on the basis that he had been
sleeping
in a manner that was a nuisance and a danger to himself and
to motorists. During cross-examination, Constable Nel testified that
another police officer had been driving the police van on the day of
the incident. He vaguely recalled that this was Sergeant Oosthuizen,
as confirmed by the entry in the SAP 15 register.
The
judgment of the court
a quo
[6]
The magistrate’s analysis of the
evidence presented at trial was terse:
‘
The
Plaintiff testified and called one witness C[...] M[...], who
testified on his behalf. Constable Anrich Nel testified on behalf
of
the Defendant…
There are two mutually
destructive versions before the Court…both cannot be true.
Only one can be true. Consequently the
other must be false.
The Plaintiff’s
witness confirms that she was with the Plaintiff on the Friday
evening: that she was present when he left
for work on the Saturday
morning. Her evidence does not take the case any further. She was not
present when he was arrested.
In cases in which the
onus of proof rests upon the Plaintiff and the Court at the end of
the case is unable to determine which side
has spoken the truth, it
must order absolution from the instance.
If at the conclusion of
the case the Court is unable to reject either the Plaintiff’s
or the Defendant’s version and
the Court cannot determine what
happened, he will order absolution from the instance.
In this case such an
Order is made and it is ordered that each party pay its own costs.’
The appeal
[7]
The appellant submitted that the magistrate
had erred and misdirected himself by dealing with the case on the
basis that the onus
of proof rested on him. In addition, it was
argued that the magistrate failed to scrutinise the mutually
destructive versions of
the appellant and Constable Nel properly. Ms
M[...]’s unchallenged evidence regarding the appellant’s
state of sobriety
was not afforded due consideration and, finally, an
adverse inference ought to have been drawn from the respondent’s
failure
to call Sergeant Oosthuizen to testify.
Analysis
[8]
It
is lamentable that the court a quo made no effort to apply the
accepted technique used to resolve two irreconcilable versions,
as
described in
SFW
Group Ltd & Another v Martell et Cie & Others
.
[2]
No findings of credibility were made. There were neither remarks
about the candour and demeanour of the witnesses nor a reflection
of
the probabilities or improbabilities of the respective versions. The
court a quo seemingly embraced the path of least resistance
in
concluding that it was unable to determine what had transpired. The
magistrate proceeded to use his understanding of the onus
to conclude
that the appellant had failed to make his case, so that the
respondent was absolved from liability. Here too the magistrate
erred.
[9]
It
is trite that where an arrest without a warrant is admitted, the onus
rests on a defendant to justify the jurisdictional facts
for a lawful
arrest:
[3]
‘
An
arrest constitutes an interference with the liberty of the individual
concerned, and it therefore seems fair and just to require
that the
person who arrested or caused the arrest of another person should
bear the
onus
of proving that his action was justified in law.’
The
fact that the appellant accepted a duty to begin has no bearing on
the onus in respect of proving the jurisdictional facts for
a lawful
arrest.
[4]
It was for the
respondent to do so. There is no cross-appeal against the
magistrate’s finding that the probabilities of the
respective
versions were evenly balanced. Accepting that to then be the case, it
was the respondent that failed to discharge its
onus to prove the
jurisdictional facts for a lawful arrest on a balance of
probabilities. The subsequent detention was, as a result,
also
unlawful. The consequence of that must be that the appellant ought to
have succeeded in his claim, and the magistrate’s
decision to
the contrary must be set aside.
[10]
This outcome is supported when considering
certain aspects of the evidence presented at trial. In particular,
M[...]’s evidence
that she had seen the appellant in a sober
state at 05h00 on the day of his arrest was unchallenged. There is no
apparent basis
for rejecting that evidence, which was material. The
court
a quo
erroneously placed no emphasis on this in weighing the evidence
presented. The consequence is that it is highly improbable that
the
appellant would have been in the advanced stage of intoxication
described by Constable Nel approximately 90 minutes later.
His
evidence on the point stands in stark contrast to that of the
appellant, supported by M[...].
[11]
In
addition, as argued by
Mr
Wessels
,
the magistrate erred in failing to draw an adverse inference from the
respondent’s failure to call Sergeant Oosthuizen,
who was
present at the time that the appellant’s arrest, to testify.
The SCA has confirmed that if a party fails to place
the evidence of
a witness who is available and able to elucidate the facts before the
trial court, this failure may lead to an
inference that it fears that
such evidence may expose facts which are unfavourable to its case.
[5]
Whether or not an inference ought to be drawn depends upon the facts
of the matter, and the strength or weakness of the case is
a relevant
factor for consideration. In this instance the probabilities
certainly did not favour the respondent strongly. Sergeant
Oosthuizen
cannot be said to have been a witness equally available to both
parties. There is no indication that he was unable to
testify. His
evidence may have been crucial in respect of material aspects of the
dispute between the parties. The respondent should
have called him to
testify and the court
a
quo
erred in failing to draw an adverse inference from the failure to do
so.
Quantum
[12]
The appeal must, for all these reasons, be
upheld with costs. As for quantum, the appellant was detained in a
dirty and smelly cell
for approximately eight and a half hours. His
fundamental right to dignity was impaired as a result of his wrongful
arrest and
warrants an appropriate award of damages. That award
should provide a measure of satisfaction for the injustice he has
suffered.
[13]
Mr Wessels
argued
that an award between R60 000 and R70 000 would be
equitable. He provided a brief analysis of the varying amounts
ordered by different courts in comparable cases. It is the facts of
the case that predominantly determine what is appropriate.
The
appellant was detained during the day and for a relatively short
period of time. There is a paucity of information regarding
the
actual conditions he experienced while incarcerated. An award of
general damages in the sum of R35 000 is considered to
be an
appropriate sum to ameliorate the infringement of his rights.
Order
[14]
In the result:
1.
The appeal is upheld with costs.
2.
The order of the court
a
quo
is set aside and is replaced with
the following:
‘
1.
The defendant is ordered to pay
to the plaintiff the amount of R35 000, as and for
damages.
2.
The defendant is ordered to pay interest on the aforesaid amount at
the legally prescribed
rate, from the date of service of summons to
date of payment.
3. The defendant is
ordered to pay the plaintiff’s costs of suit, including
increased fees for counsel but limited to
twice the tariff for
consultation and trial, together with interest calculated thereon at
the legally prescribed rate, from a date
fourteen (14) days after
taxation to the date of payment.’
A GOVINDJEE
JUDGE OF THE HIGH
COURT
EKSTEEN J:
I agree.
JW EKSTEEN
JUDGE OF THE HIGH
COURT
Heard:
10 March 2023
Delivered:
14 March 2023
Counsel
for the appellant:
Adv
JW Wessels
Instructed
by:
Swarts
Attorneys
80
Stanford Road
Korsten
Gqeberha
Counsel
for the respondent:
Adv
AC Barnett
State
Attorney
29
Western Road
Central
Gqeberha
[1]
Act
51 of 1977.
[2]
SFW
Group Ltd & Another v Martell et Cie & Others
2003
(1) SA 11
(SCA) para 5.
[3]
Minister
of Law and Other and Othes v Hurley and Another
1986
(3) SA 568
(A) at 589E-F.
[4]
See
Minister
of Safety and Security v Sekhoto
2011 (1) SACR 315
paras 7, 8, 45-53.
[5]
Dlanjwa
v The Minister of Safety and Security
[2015]
ZASCA 147
para 29.