About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Makhanda
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Makhanda
>>
2023
>>
[2023] ZAECMKHC 45
|
|
Smith v Minister of Police (2004/2019) [2023] ZAECMKHC 45 (4 April 2023)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE
DIVISION, MAKHANDA)
CASE NO: 2004/2019
In the matter between:
CARLTON EDMUND
THEONIEL SMITH
Plaintiff
and
MINISTER OF POLICE
Defendant
JUDGMENT
Bloem J:
1.
This is an action for damages by the
plaintiff against the defendant, the Minister of Police, arising from
his arrest and detention.
The plaintiff initially instituted
action also against the Minister of Justice, as the second defendant,
and the National Prosecuting
Authority of South Africa, as the third
defendant. He has subsequently withdrawn his claims against
those two defendants
and tendered to pay the costs in respect of his
withdrawn claims.
2.
In his particulars of claim the plaintiff
alleged that on 8 September 2018 and at Cradock he was arrested
without a warrant by warrant
officer Kerneels van Rooyen (Kerneels,
as he is known) on a charge of housebreaking with intent to steal and
theft. He was then
detained at the police holding cells at Cradock
until 10 September 2018 when he appeared in the magistrate’s
court at
Cradock. After his appearance in court on 10 September
2018, he was further incarcerated at the instance of members of the
South African Police Service. He was held in custody until 20
September 2018 when he was released after a successful formal
bail
application. The state withdrew the case against him on 15
November 2018.
3.
The plaintiff alleged that his arrest and
detention were wrongful, unlawful and without justification. He
alleged that, as
a result of his unlawful arrest and detention, he
suffered damages in the sum of R500 000.00 in respect of the
deprivation of his
liberty, loss of privacy, shock and trauma,
emotional pain and suffering, loss of earnings and the impairment of
dignity and contumelia.
4.
The
defendant admitted that Kerneels arrested the plaintiff and that he
was detained at the cells of the Cradock police station
from 8 to 10
September 2018. He denied that the plaintiff’s arrest was
wrongful and unlawful. Relying on the
provisions of section
40(1)(b) of the Criminal Procedure Act,
[1]
the defendant pleaded that the plaintiff was arrested without a
warrant because Kerneels reasonably suspected him of having committed
the offences of housebreaking with the intent to steal and theft,
alternatively, housebreaking with the intent to commit an offence
unknown to the state (the suspected offences).
5.
The defendant alleged that, when the
plaintiff appeared in court on 10 September 2018, the
matter was postponed to 12
September 2018 to secure legal
representation for the plaintiff and for further investigation
pertaining to the verification of
his address and profile. When
the plaintiff appeared in court on 12 September 2018, the matter
was postponed to 20 September
2018 to enable the plaintiff to make a
formal bail application. The plaintiff was released on
20 September 2018 after
bail was granted and he paid in the sum
of R300. The defendant denied that the plaintiff’s
detention was wrongful and
unlawful.
6.
Since
the defendant admitted that Kerneels arrested the plaintiff and
caused his detention until his first appearance in court on
10
September 2018 (the initial detention), the onus was on him to
justify the arrest and detention. That is so because
an
arrest constitutes and interference with an individual’s
liberty. It is for that reason that the person who deprives
an
individual of his liberty bears the onus of proving that his or her
action was justified in law.
[2]
The defendant sought to justify the plaintiff’s arrest by
relying on section 40(1)(b) of the Criminal Procedure
Act, which
provides that a peace officer may without warrant arrest any person:
“
(b)
whom he reasonably suspects of having committed an offence referred
to in Schedule 1, other than the offence
of escaping from lawful
custody.
”
7.
The
jurisdictional facts for a section 40(1)(b) defence are that (i) the
arrestor must be a peace officer; (ii) the arrestor must
have
entertained a suspicion; (iii) the suspicion must be that the suspect
had committed an offence referred to in Schedule 1;
and (iv) the
suspicion rested on reasonable grounds.
[3]
8.
It is common cause that Kerneels, who
arrested the plaintiff, is a peace officer and that the suspected
offences for which the plaintiff
was arrested are offences referred
to in Schedule 1. What is in issue is whether or not Kerneels
had reasonable grounds for
suspecting that the plaintiff had
committed the suspected offences.
9.
The plaintiff testified that he lives with
Ruth Plaaitjies, his partner, at her parental home at Rustoord,
Cradock. On Friday, 7
September 2018 and at the request of his
neighbour, he cleaned her garden between 10h00 and 14h00. She
paid him R30 with
which he bought meat and homemade beer. He
and his partner consumed the beer at home. Between 5 and 6 o’
clock that
evening, he walked with some rose tree shoots (the trees),
which he had collected from his neighbour’s garden, to the
house
of Virginia Smith, the complainant. She had asked him for
rose trees earlier in that week. Upon his arrival, she told
him
that she did not feel well and did not have money to pay for the
trees. He left the trees on her stoep and went to his
aunt’s
house, which was not far from the complainant’s home.
There he met his cousin, Veronice Pieterse.
The two of them
went to a shop where they bought bread, potatoes and spices. On
their way home, they past a tavern where
they bought two bottles of
sherry. Upon their arrival at his aunt’s home, they
consumed one bottle of sherry.
He then went home where he and
his partner prepared supper, consumed the other bottle of sherry and
went to bed after he had smoked
dagga.
10.
When he woke up at approximately 7 o’clock
on the Saturday morning, he dressed himself in his partner’s
black tracksuit
trousers and T-shirt and put on his black jacket, cap
and takkies. He put the clothes, which he was going to wear
when attending
a funeral later that day, in a black bag and arranged
with his partner to meet her at the funeral. As he was walking
along
the side of the N10 towards his mother’s house at
Michausdal, Cradock to have a bath, the police stopped him. He
knew
both policemen who alighted from the police van (the van).
Kerneels greeted and asked him where he had slept the night before.
He informed him where he had been sleeping. He asked him
whether he knew anything about the trees. He informed Kerneels
that he took the trees to the complainant’s house the previous
day. Kerneels told him that someone who was dressed
in black
clothes had broken into the complainant’s house during the
night. He informed Kerneels that he was at the
complainant’s
house during the previous afternoon. Kerneels told him that he
should accompany them to the complainant’s
house. He
showed him the clothes that he intended to wear to the funeral but
Kerneels was not interested. He once again
informed Kerneels
that he knew nothing about the break in at the complainant’s
house.
11.
He accompanied the policemen to the
complainant’s house, where he was left sitting in the back of
the van. The two policemen
entered the house. Shortly
thereafter the three of them walked towards the van. The
complainant looked into the back of the
van and said that the
plaintiff was indeed the person who had broken into her house.
He begged her and said that it was not
him. The policemen took
a docket from the vehicle and returned with the complainant to her
house where they remained for
some time. When they returned,
they drove to the police station via a dumping site where the
policemen looked at something.
They also drove past his aunt’s
house as well as his partner’s parental home. At both
houses he shouted at the
policemen to stop but they did not stop.
12.
At the police station he was taken in the
direction of the cells where his bag was taken from him. He was
placed in a cell
until he was taken to court on Monday, 10 September
2018. The case was postponed until 12 September 2018 to secure
legal
representation for him. He was thereafter detained at the
police cells at the Cradock police station until he appeared in
court
on 12 September 2018. The case was then postponed to 20
September 2018 to enable him to make a formal bail application.
He was detained at the Middelburg Correctional Centre until he
returned to the Cradock police station on 19 September 2018, where
he
was detained in the cells until he appeared in court on the following
day. He made a successful bail application whereafter
he was
released from detention.
13.
The plaintiff testified that he could not
have committed the suspected offences because he was in bed with his
partner throughout
the previous evening until approximately 7 ’o
clock on the morning of 8 September 2018.
14.
Ruth Plaaitjies confirmed that she is in a
love relationship with the plaintiff for the past seventeen years.
She testified
that on the Friday the plaintiff worked in their
neighbour’s garden after which he returned with rose shoots as
well a R30 that
he received from his neighbour. They
bought meat and homemade beer. Upon their return, they consumed
the beer.
The plaintiff left with the rose shoots between 5 and
6 o’clock that afternoon. He returned at about 7 o’clock
with bread, cigarettes, a bottle of sherry, spices and potatoes.
He said that the complainant did not want to have the rose
shoots.
They prepared supper and consumed the bottle of sherry. After
dinner the plaintiff undressed his blue overall
pants and black
overall jacket. She then did his and her laundry after which
they went to bed. She testified that the plaintiff
did not leave
their room until approximately 7 o’clock the following
morning.
15.
When they woke up she prepared the clothes
which he intended wearing to a funeral later that day and placed them
in a black backpack.
He was dressed in her black tracksuit
pants and the black jacket that he wore the previous day. He
left the overall pants
behind because he wanted her to wash it.
When he left, he said to her that he was going to have a bath at his
parental home.
They agreed to meet later during the day at the
funeral. She did not see him later that Saturday. When he did not
return by 9 o’clock
on the Sunday morning, she went looking for
him, but did not find him. She denied that she spoke to
Leicester Booysen (sergeant
Booysen) at her house on the Saturday or
Sunday.
16.
She learned for the first time on the
Monday from her mother that the plaintiff had been locked up.
She went to the magistrate’s
court at Cradock where she met
sergeant Booysen who asked her what she was doing at the court.
She told him that she had
been told that the plaintiff would appear
in court on that day. He asked her whether the plaintiff was
with her on the Friday
night. When she confirmed that he was
indeed with her, he asked whether he did not arrive “
with
cellphones or something else
”.
She told him that he arrived with the potatoes, bread, etc. She
did not have further discussions with him.
17.
Ms Plaaitjies testified that, prior to his
arrest, she and the plaintiff had been living together for
approximately one year.
He was not working prior to his arrest,
other than doing odd jobs earning between R80 and R150 per day,
depending on the type of
work he was required to do. She was
unable to say how much he earned per week.
18.
Kerneels testified that, as he and
constable Lewis were patrolling the streets of Cradock at about 6
o’clock on the Saturday
morning, they received a report of the
suspected offences at the complainant’s house. They went
to her house where
they interviewed her. She informed them
that, as she woke up, she saw a figure busy with the drawers in her
house.
She did not see his face. She told them that he
was built like the plaintiff. He was dressed in a black pair of
trousers
and black jacket. She informed them that the person
had stolen three cell phones and a bag. While they were
interviewing
the complainant, her daughter received a call to the
effect that the plaintiff was seen walking along the N10 towards
Michausdal.
He and constable Lewis drove towards the N10 and
stopped the vehicle where they found the plaintiff near the N10.
He was
dressed in a black pants and black jacket.
19.
He informed the plaintiff that he was being
arrested because he broke into the complainant’s house that
morning and stole
some items. The plaintiff denied the
allegations against him. Having placed the plaintiff in the
back of the van, they
returned to the complainant’s house.
He reported to the complainant that they had arrested the plaintiff.
She
went to the van and accused the plaintiff of having broken into
her house. He denied that he broke into her house. After
constable Lewis had completed the complainant’s statement, they
went to the police station. After certain paperwork
had been
completed, the plaintiff was placed in a cell at the police station.
The plaintiff did not have a bag in his possession
when he was
arrested. The last time that he dealt with the plaintiff was
when he was placed in the cells.
20.
Sergeant Booysen testified that the docket
regarding the complaint of the suspected offences was allocated to
him on the Saturday
morning after the plaintiff’s arrest.
At that stage only the statements of the complainant and the
arresting officer
were in the docket. Having read those
statements, he interviewed the complainant, who informed him that she
suspected that
it was the plaintiff who had broken into her house and
that he was at her house during the previous day. He then
interviewed
the plaintiff at the police station who told him that he
knew nothing about the break in at the complainant’s house and
that
he was at his partner’s house the previous night. He
then went to Ms Plaaitjies who told him that she was unaware when
the
plaintiff left home. With her permission he searched her home
but did not find a TV, which was stolen from the complainant’s
house. He thereafter activated his informer to be on the
lookout for a TV which could be for sale by a private person.
His informer did not furnish him with any additional information.
21.
He decided to charge the plaintiff at about
midday on the Sunday as he was meant to appear in court on Monday, 10
September 2018.
As part of the process of charging the
plaintiff, he took his warning statement wherein the plaintiff
referred to his visit to
the complainant’s house and his aunt’s
house on the Friday, that he slept at his partner’s house that
night and
that he was on his way to Michausdal on the Saturday
morning when he was arrested. He also prepared, what was
referred to
as the bail form. It is a document completed by an
investigating officer containing a suspect’s personal
information
and whether or not the police would oppose bail. He took
the plaintiff’s fingerprints for purposes of establishing
whether
he had previous convictions, as well as comparing them with
the fingerprints which had been lifted at the scene of the crime.
22.
He did not accompany the plaintiff when he
went to court on the Monday. He received the docket on Friday,
14 September 2018
when he noticed an entry made by the public
prosecutor that he must prepare himself for a bail application.
He went to court
on 20 September 2018 and told the public prosecutor
that he would not oppose bail. He deposed to an affidavit to
that effect.
The magistrate granted bail to the plaintiff in
the sum of R300.
23.
The
information that Kerneels had at the time of the plaintiff’s
arrest was that the plaintiff was at the complainant’s
house
during the previous day, that someone was in her house that morning,
that the suspect was dressed in a black pants and black
jacket, that
he was built like the plaintiff and that the plaintiff was dressed in
a black pants and a black jacket when he was
arrested. The question
is whether a reasonable person with that information would have
considered that there were good and sufficient
grounds for suspecting
that the plaintiff had committed the suspected offences. In
Mabona
and another v Minister of Law and Order and others
[4]
meaning was given to the concept of reasonable suspicion. Jones J
said the following in that regard:
“
The
question is whether his suspicion was reasonable. 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 33H). 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 plaintiffs were 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, ie something which otherwise would be an
invasion of private rights and personal liberty. The
reasonable man will therefore analyse and assess the quality of the
information at his disposal critically, and he will not accept
it
lightly or without checking it where it can be checked. It is only
after an examination of this kind that he will allow himself
to
entertain a suspicion which will justify an arrest. This is not to
say that the information at his disposal must be of sufficiently
high
quality and cogency to engender in him a conviction that the
suspect is in fact guilty. The section requires suspicion
but not
certainty. However, the suspicion must be based upon solid grounds.
Otherwise, it will be flighty or arbitrary, and not
a reasonable
suspicion.
”
24.
In cross-examination Kerneels conceded that
he did not suspect that it was the plaintiff who had committed the
suspected offences.
He also conceded that, before arresting the
plaintiff, he should have enquired where he was at approximately half
past five that
morning, but that he did not do so. In
re-examination, he testified that the complainant was sure that it
was the plaintiff
who had broken into her house. Yet, when the
court requested him to clarify his evidence in cross-examination and
re-examination
in that regard, he gave the following evidence:
“
MR
VAN ROOYEN:
She did not
say it is Carlton. She said that – the person who was in
her house, the body build is like Carlton.
She did not say for
sure that it is Carlton, M’Lord.
COURT
:
You can understand Warrant Officer, ultimately this is what the case
is about and I need to understand your evidence and
quite frankly I
do not understand your evidence. Help me to understand what she
said to you.
MR
VAN ROOYEN
: At the
interview she said she saw the body structure. The clothing
description, the black jacket and the black trouser.
She also
mentioned that the previous day he was there with the same clothing
description. That is why she mentioned in the
interview, she
can be sure it is Carlton.
COURT
:
No, that it is. She is sure that it could be Carlton.
MR
VAN ROOYEN
: Could be, ja.
It could be Carlton.
COURT
:
Now that is what I do not understand. It is one thing to say
the person that I saw in my house is Carlton. There
can be no
doubt about that. I am definitely sure that the person that I
saw in my house could have been Carlton. What
does the second
one mean to you.
MR
VAN ROOYEN
: Could have
been.
COURT
:
Because that is your evidence.
MR
VAN ROOYEN
: Could have
been.
COURT:
So, what
does it mean?
MR VAN ROOYEN:
Dit kan moontlik.”
25.
Mr Madokwe, counsel for the defendant,
submitted that Kerneels entertained a reasonable suspicion that the
plaintiff had committed
the suspected offences. Counsel relied
on Kerneels’ evidence that the complainant had informed him
that she suspected
the plaintiff; that the complainant’s
daughter received a report that the plaintiff was seen walking along
the N10
while the policemen interviewed her; and, when the
plaintiff was stopped, he was wearing black clothing. The
section
requires an arresting officer’s suspicion to be
reasonable. It must be based on reasonable grounds. In this
case, Kerneels
relied on the complainant’s suspicion, not his
own suspicion. What is more, is that he did not ascertain the
grounds
upon which the complainant’s suspicion was based.
His evidence was that the complainant informed him that she did not
see the intruder’s face.
26.
In my view, the information at Kerneels’
disposal did not form a solid basis upon which a reasonable suspicion
could be founded.
What was submitted on behalf of the defendant
means that Kerneels arrested the plaintiff because he was dressed in
black clothing
when he was found walking near the N10. At best
for the defendant, when the plaintiff was arrested wearing black
clothing,
it could be said that Kerneels may have had a suspicion
that he could have been the intruder that the complainant saw.
But
that suspicion would not have been based upon solid grounds.
It would accordingly not have been a reasonable suspicion. The
information was hopelessly inadequate for purposes of forming a
reasonable suspicion. Kerneels testified that, when he told
the
plaintiff of the reasons for his arrest, the plaintiff denied that he
broke into the complainant’s house. Kerneels
should, at
that stage, have assessed the quality of the information at his
disposal. His evidence was that he took the plaintiff
to the
complainant’s house and reported to her that they had arrested
the plaintiff. When the complainant saw the plaintiff,
she
accused him of having broken into her house. That was the very
same person who did not identify the intruder to the policemen
less
than an hour earlier. Kerneels could also have gone to the
plaintiff’s partner to establish whether the plaintiff
was
indeed at home at the time when the complainant had her house broken
into. That information could easily have been checked,
but he
failed to do so.
27.
I reject sergeant Booysen’s evidence
to the effect that, during the course of the Saturday morning, he
visited Ms Plaaitjies.
If that was the case, he would
most probably have minuted a statement from her to the effect that
the plaintiff was with her at
all material times. The least he
could have done in that regard was to make an entry to that effect in
the investigation
diary. His failure to record his alleged
visit to Ms Plaaitjies gives credence to her evidence that sergeant
Booysen did
not visit her at any stage over that weekend and that she
met him for the first time at court on the Monday.
28.
In the circumstances, I am satisfied that
the defendant has failed to demonstrate that, when Kerneels arrested
the plaintiff, he
had a reasonable suspicion that he committed the
suspected offences. The plaintiff’s arrest was
accordingly unlawful.
29.
Regarding the plaintiff’s initially
detention, Mr Madokwe submitted that, because the plaintiff’s
arrest was lawful,
it follows that his initial detention was also
lawful. For that submission, counsel regard on section 39 (3)
of the Criminal
Procedure Act, which reads as follows:
“
The
effect of an arrest shall be that the person arrested shall be in
lawful custody and that he shall be detained in custody until
he is
lawfully discharged or released from custody
.”
30.
The
arrest contemplated in section 39 (3) of the Criminal Procedure Act
is a lawful arrest. The subsection provides that the
person who
has been lawfully arrested shall be in lawful custody until lawfully
discharged or released from custody. Counsel
did not make
submissions on the initial detention in the event of the arrest being
found to have been unlawful. Since the
arrest was found to have
been unlawful, it follows that the initial detention was also
unlawful.
[5]
In the
circumstances, the plaintiff’s initial detention was also
unlawful.
31.
The plaintiff complained that his detention
after his first appearance in court (the subsequent detention) was
wrongful and unlawful.
In paragraph 9 of his particulars of
claim, the plaintiff pleaded that his subsequent detention was
wrongful and unlawful, in that
Kerneels and the other members of the
South African Police Service who were involved in the investigation
of the suspected offences
against him:
“
9.1.1
Knew alternatively ought to have known that no reasonable objective
grounds or justification existed for
the Plaintiff’s continued
and subsequent detention.
9.1.2
Could easily have ascertained, by taking simple investigative steps,
that no such grounds or justification
existed, but failed to take any
such steps.
9.1.3
Failed in their duty to inform the public prosecutor(s) dealing with
the matter that no such grounds
or justification existed.
9.1.4
Failed to take any steps to ensure that the Plaintiff was released
from detention as soon as was possible
.”
32.
The defendant pleaded
inter
alia
that:
“
7.2.2
The relevant case docket of the South African Police Service
contained sufficient information to warrant
the prosecution of the
Plaintiff with bail being set at R300.00.
7.2.3
In terms of
section 42
of the
National Prosecuting Authority Act 32
of 1998
no person is liable in respect of anything done in good faith
under the said Act.
7.2.5
All functions performed by the relevant public prosecutors with
regard to the criminal prosecution
were performed in good faith.
7.2.6
The relevant public prosecutors neither acted with animus iniuriandi
nor maliciously.
7.2.7
The rights contained in the Bill of Rights of the Constitution of the
Republic of South Africa, 1996
are subject to certain limitations,
including the general limitation set out in section 36.
The basis upon which the
Plaintiff was lawfully arrested, detained
and prosecuted is set out above. Section 205 of the
Constitution specifically mandates
members of South African Police
Service to prevent, combat and investigate crime, to maintain public
order, to protect and secure
the inhabitants of the Republic and
their property, and to uphold and enforce the law. Section 79
of the Constitution
mandates the National Prosecuting Authority to
institute criminal proceedings on behalf of the state and to carry
out any necessary
functions incidental to instituting criminal
proceedings.
7.3
The detention of the plaintiff following his appearance in court on
10 September
2018 and thereafter occurred pursuant to orders issued
by and at the instance of the presiding magistrate who is not an
employee
of the defendants.
”
[6]
33.
For the defendant to be held liable for the
plaintiff’s subsequent detention, the plaintiff was required to
show that he suffered
harm and that the harm was caused by a wrongful
and intentional act (or failure to act) on the part of the defendant
or a member
of the South African Police Service who investigated the
suspected offences. The only member who investigated the suspected
offences
was sergeant Booysen. It is undisputed that the
plaintiff suffered harm when he was deprived of his liberty during
the subsequent
detention.
34.
In paragraph 9 of his particulars of claim,
the plaintiff alleged that the subsequent detention was wrongful
because Kerneels and/or
sergeant Booysen failed to prevent the
subsequent detention when he or they acted in the manner set out in
paragraph 9.1 of the
particulars of claim. The plaintiff’s
claim is that one or both of the policemen had a duty to protect the
plaintiff’s
right not to be deprived of his freedom, but that
they failed to protect that right when they acted in the manner set
out in paragraph
9 of the particulars of claim.
35.
The
issue, on the pleadings, is whether the conduct of Kerneels and/or
sergeant Booysen, in relation to the harm suffered by the
plaintiff
as a result of the subsequent detention, was wrongful. The
plaintiff did not plead causation. In other words,
he did not
plead that his subsequent detention was caused by his unlawful
arrest. The case pleaded by the plaintiff distinguishes
it from
de
Klerk v Minister of Police
[7]
where the plaintiff pleaded that his subsequent detention was caused
by his wrongful arrest.
[8]
36.
Section
35
[9]
of the Constitution
guarantees certain rights to persons who have been arrested and
detained as suspects. In terms of section
35(1)(d)(i) any
person who has been arrested by the police for allegedly committing
an offence has the right to be brought before
a court as soon as
reasonable but not later than 48 hours after arrest. The duty
to take the arrested person to court rests
on the police. In
terms of section 35(1)(e) any arrested person has the right, at
the first court appearance, to be
charged or to be informed of the
reasons for the detention to continue, or to be released. The
decision to charge the arrested
person falls exclusively within the
domain of the National Prosecuting Authority, represented in these
proceedings by the public
prosecutor. In terms of section
35(1)(f) any arrested person has the right to be released from
detention if the interests
of justice permit, subject to reasonable
conditions. The power to release an arrested person from
detention vests in the
presiding officer. Three different
institutions of government (the South African Police Service, the
National Prosecution
Authority and the Judiciary) have separate
constitutional obligations to perform when a suspect makes his or her
first appearance
in court after being arrested.
37.
The Constitutional Court has upheld the
doctrine of separation of powers. In terms of that doctrine the
different arms of
the state should refrain from interfering on the
terrain of the other. That doctrine is implicated in this
case. Two
arms of the state are involved, namely the executive
and the judiciary.
38.
In this case sergeant Booysen, who operates
under the executive arm of the state as a member of the South African
Police Service,
complied with his constitutional obligation by
ensuring that the plaintiff was brought before a court as soon as
reasonably possible.
It was for the National Prosecuting
Authority, represented by the prosecutor, to determine whether or not
the plaintiff should
be charged. The prosecutor decided to
charge the plaintiff with the suspected offences. It was then
for yet another
arm of the state, the judiciary, to determine whether
it would have been in the interests of justice to have the plaintiff
released
from detention.
39.
After sergeant Booysen had complied with
his constitutional obligation to ensure that the plaintiff was
brought before the court,
two further constitutional obligations had
to be taken by two different role players. The first was that
the prosecutor had
to decide whether or not to charge the plaintiff.
He decided to charge him with Schedule 5 offences and indicated that
the state
would oppose the plaintiff’s release on bail.
The second was that the magistrate decided not to release the
plaintiff
from custody.
40.
As the investigating officer, sergeant
Booysen had the constitutional obligations to take the plaintiff to
court as soon as reasonably
possible. He complied with that
obligation. Once sergeant Booysen had taken the plaintiff to
court, he had no power
to charge the plaintiff or to release him on
bail or order his further detention. Those powers belonged to
the prosecutor
and magistrate respectively.
41.
The plaintiff adduced no evidence to
demonstrate that either Kerneels or sergeant Booysen or both of
them acted in a wrongful
or unlawful manner in terms of his
constitutional obligation in relation to the harm suffered by him as
a result of his subsequent
detention. The harm was caused by
the prosecutor who indicated that he would oppose bail and by the
magistrate who postponed
the case. It cannot be said that
Kerneels or sergeant Booysen wrongfully caused the subsequent
detention when, all they did,
was to execute their constitutional
obligations to take the plaintiff to court, to elect to oppose bail,
to charge the plaintiff
and decide not to release him from custody.
In the circumstances, Kerneels or sergeant Booysen’s conduct or
omission in relation
to the plaintiff’s subsequent detention
was not wrongful. Since the plaintiff failed to establish
wrongfulness on the
part of any member of the South African Police
Service in respect of the harm suffered by the plaintiff as a result
of his subsequent
detention, it is unnecessary to deal with the
question of causation. The plaintiff’s claim based on his
subsequent
detention must accordingly be dismissed.
42.
I am of the view that considerations of
public policy would render it unfair and unreasonable to impute
delictual liability to the
police, especially if regard is had to
sergeant Booysen leaving the issue of the plaintiff’s release
on bail in the hands
of the prosecutor, that he caused the plaintiff
to be brought before a magistrate on the Monday, that the prosecutor
and the magistrate
took decisions in which neither Kerneels nor
sergeant Booysen took part.
43.
In all the circumstances, the defendant
should be held liable for the plaintiff’s unlawful arrest and
his detention until
his first appearance in court. The police
did not act wrongfully in respect of his subsequent detention. The
defendant can
accordingly not be held liable for the plaintiff’s
subsequent detention. It means that the defendant should
compensate
the plaintiff for his arrest and detention for two days.
44.
Regarding
the quantum of the damages suffered by the plaintiff as a result of
his arrest and initial detention, the Constitution
places a high
premium on the right to freedom, which includes the right not to be
deprived of freedom without just cause.
Regard was had to the
plaintiff’s personal circumstances, the circumstance under
which he was detained and the majority judgment
in
de
Klerk v Minister of Police.
[10]
In my view the sum of R100 000.00 is appropriate to compensate
the plaintiff for damages suffered by him.
45.
The plaintiff was substantially
successful. He is accordingly entitled to the costs of the
action, save for the costs of the
first day of trial on 31 October
2022 when the case was postponed to the following day to enable the
plaintiff to effect the amendment
of his particulars of claim. He
should pay the defendant’s costs occasioned by that
postponement. Since the plaintiff
could have obtained judgment
in the sum of R100 000 in the magistrate’s court, there is
no reason why the defendant
should pay High Court costs.
46.
In the result, it is ordered that:
1.
The plaintiff’s claim for unlawful
arrest and detention by a member of the South African Police Service
from 8 to 10 September
2018 is upheld.
2.
The defendant shall pay to the plaintiff
the sum of R100 000 as damages for his above unlawful arrest and
detention.
3.
The defendant shall pay interest on the sum
of R100 000 at the prescribed rate, such interest to run after
30 days from the
date of this order to date of payment.
4.
The plaintiff’s claim, that members
of the South African Police Service caused his further detention
after his first appearance
in court on 10 September 2018, is
dismissed.
5.
The defendant shall pay the plaintiff’s
costs of the action on the magistrate’s court scale, such costs
to include counsel’s
fees, which fees shall not exceed thrice
the amount specified in the applicable tariff, and exclude the costs
occasioned by the
postponement on 31 October 2022.
6.
The plaintiff shall pay the defendant’s
costs occasioned by the postponement on 31 October 2022.
G H BLOEM
Judge of the High Court
For the plaintiff:
Mr
W Olivier, instructed by Coetzee and Venter Inc, Cradock and
McCallum Attorneys, Makhanda.
For
the defendant:
Mr
V Madokwe, instructed by the State Attorney, Gqerberha and Lulama
Prince Attorneys, Makhanda.
Date
heard:
31
October 2022, 1 and 2 November 2022.
Date
of delivery of judgement:
4
April 2023.
[1]
Criminal
Procedure Act, 1977 (Act 51 of 1977).
[2]
Minister
of Law and Order and others v Hurley and another
1986 (3) 568 (AD) at 589E-G.
[3]
Minister
of Safety and Security v Sekhoto and another
2011 (1) SACR 315
(SCA) at par 6.
[4]
Mabona
and another v Minister of Law and Order and others
1988 (2) SA 654
(SECLD) at 658E-H.
[5]
Minister
of Law and Order, Kwandebele, and others v Mathebe and another
1990 (1) SA 114
(A) at 122B-D. Although
Mathebe
deals
with different legislation, the principle remains the same that, if
an arrest is tainted by illegality, the detention would
also be
illegal or unlawful.
[6]
The
defendants at the time were the Minister of Police, the Minister of
Justice and the National Prosecuting Authority of South
Africa.
[7]
de
Klerk v Minister of Police
2020 (1) SACR 1 (CC).
[8]
Id
paras 19 and 20.
[9]
Section
35(1)(d), (e) and (f)
of the Constitution provides that everyone who is arrested for
allegedly committing an offence has the right -
“
(d)
to be brought before a court as soon as reasonably possible, but
not later than —
(i)
48 hours after the arrest; or
(ii)
the end of the first court day after
the expiry of the 48 hours, if the 48 hours expire outside ordinary
court hours or on a day
which is not an ordinary court day;
(e)
at the first court appearance after
being arrested, to be charged or to be informed of the reason for
the detention to continue,
or to be released; and
(f)
to be released from detention if the
interests of justice permit, subject to reasonable conditions.”
[10]
de
Klerk v Minister of Police
2018
(2) SACR 28
(SCA).