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2024
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[2024] ZAECMKHC 41
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Minister of Police v Xopo and Another (CA 155/2023) [2024] ZAECMKHC 41 (9 April 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, MAKHANDA)
Not
Reportable
Case
no: CA155/2023
In
the matter between:
THE
MINISTER OF POLICE
Appellant
and
LUVUYO
DERRICK XOPO
First
Respondent
THOKOZILE
NGQEKAZI
Second
Respondent
JUDGMENT
Notyesi
AJ
Introduction
[1]
The
respondents sued the appellant for damages arising from their alleged
unlawful arrest and detention (the detention having spanned
from the
early hours of 3 July 2017 to 4 July 2017) for the respective amounts
of R100 000 each. Initially, there were two
claims by the second
respondent, claim one was for unlawful arrest and detention and claim
two was for wrongful and unlawful assaults.
The second respondent
abandoned claim two at the commencement of the trial.
[2]
At
the end of the trial before the court
a
quo
, the Magistrate found that the
arrest and detention of the respondents was unlawful and awarded them
damages in their favour in
the amount of R80 000 each, with
interest from the date of judgment to date of payment, plus costs.
This is an appeal against
the Magistrate’s judgment and orders.
[3]
The
appeal is predicated mainly on the contention that the Magistrate had
erred in finding that the appellant failed to discharge
the onus
resting upon the arresting officer in terms of section 40(1)(b) of
the Criminal Procedure Act, 51 of 1977 (the CPA),
[1]
to justify the respondents’ arrest and detention. The appellant
contends that the Magistrate erred and misdirected himself
in
concluding that there was no reason for the police to delay in
verification of the names and addresses of the suspects,
having
regard to the evidence that the respondents were arrested in the
early hours of 3 July 2017 and that the verification of
the
respondents’ addresses could have been done within a short
period of time and not over a period of more than 1 day.
[4]
The
appellant had submitted, in the Magistrate’s Court and
presently before this Court, that the arrest and detention of the
respondents was lawful and justified in terms of section(s) 40(1)(b),
although in their plea he had further relied on section 40(1)(f);
read with sections 39 and 50 of the CPA but this was not pursued in
evidence or in argument. In this regard, the appellant had
submitted
that the arresting officer had sufficient information at his disposal
which warranted the arrest and detention of the
respondents.
[5]
At
the commencement of the hearing of this appeal, the appellant had
brought an application for condonation in respect of their
late
filing of the notice to prosecute the appeal. This Court granted the
condonation and reinstated the appeal. The respondents
did not oppose
the grant of condonation and the reinstatement of the appeal.
[6]
The
issue for determination is whether or not:
(a) the
magistrate correctly found in favour of the respondents that their
arrest and detention was unlawful
and not justified in terms of
section 40(1)(b) of the CPA; and
(b) in
the event that the court a quo correctly found in favour of the
respondents whether or not the amount
awarded was appropriate or
excessive based on the evidence of the case.
Background
[7]
At
approximately 03h30, on 3 July 2017, the respondents were arrested by
members of the South African Police Service without a warrant
at or
near the M17, Port Elizabeth. The arrest was admitted; accordingly,
the appellant’s witnesses were the first to adduce
evidence in
the trial. In this regard, Sgt Thandisiwe Flatela and Sgt Mfusi Abel
Thala testified.
[8]
Sgt
Flatela testified that he is a member of the SAPS holding a rank of
police sergeant. According to him, on 2 July 2017, he was
on duty
patrolling as part of crime prevention. He was clad in full police
uniform. He testified that at about 12 midnight, he
received a
complaint through the police radio control. The report he received
was that there was a shooting incident at Seyisi
area of KwaZakhele.
[9]
Upon
receipt of that report, Sgt Flatela proceeded to the scene of the
shooting. When he arrived at the scene of the crime, he found
a man
already dead. Upon his enquiry about the incident, he received
information that the person who had shot the deceased had
run into a
red Golf vehicle and fled the scene. Sgt Flatela immediately conveyed
the information to his colleagues through a police
radio. His
colleagues, within a short space of time, informed him that the red
Golf had been spotted and stopped. He immediately
left the scene and
proceeded to the place where the red Golf had been found.
[10]
Upon
his arrival at the place where the red Golf had been stopped, he
found his colleagues and the occupants of the red Golf. He
introduced himself to the occupants of the red Golf and told them
that he was following up on a person suspected of murder. He
informed
the occupants that according to his information, the person who had
committed the murder was alleged to have driven away
in a red Golf.
Sgt Flatela further testified that he then arrested the occupants in
order to conduct further investigations. He
then made arrangements
for a prima residue test to be done and buccal samples to be taken on
each of the occupants of the red Golf.
He also arranged for
their questioning, in order to trace the person implicated in the
crime of murder.
[11]
On
his conclusion of the prima residue test and buccal samples, Sgt
Flatela detained the respondents for what he termed ‘thorough
investigation to be done because of the seriousness of the offence.’
According to him, the investigating officer, at that
time, was at the
scene of the crime at Seyisi Area, KwaZakhele.
[12]
Sgt
Flatela had further testified that the person who provided him with
information of the murder suspect was a member of the community.
He
did not divulge the details of his informant.
[13]
Sgt
Thala also testified. He confirmed that he was the investigating
officer of the murder case. According to him, he was dispatched
by
controller 10111 to attend to a murder crime scene at Ndongeni
Street, Seyisi, KwaZakhele. On his arrival at the scene, he found
Constable A N Ndingi of New Brighton visible policing unit. Constable
Ndingi had informed him that he had arrived at the scene
at about
23h35 and that on his arrival, he found the body of the deceased
already laying on the ground.
[14]
According
to Sgt Thala, he had attended the scene in the early hours of 3 July
2017 and that after completing the crime scene investigation,
he went
off duty. He again reported on duty on the same morning at about
07h30. When he reported for duty at about 07h30, he received
the case
docket from his superior commanding officer at about 10h30 on the
same day. Sgt Thala testified that when he received
the docket, he
observed that there were suspects that were found in the red Golf and
that prima residue tests were done and that
buccal samples were also
taken. Sgt Thala conducted his own investigations by interviewing 7
suspects that were arrested in the
red Golf. The purpose of his
investigation was to establish whether any of the suspects were
linked to the offence.
[15]
He
testified that upon completing his investigations, he realised that
there was not enough evidence to place them at the scene
and decided
to release them. He completed his investigation on 3 July 2017 and
released the suspects on 4 July 2017. The delay
in the release of the
suspects was because he was waiting for the commanding officer to
sign SAP328 documents before the suspects
could be released. Sgt
Thala also confirmed that on 3 July 2017, he had obtained a statement
from a certain Mr Siyolo. He further
testified that when he arrived
at work on 3 July 2017, he saw in the docket that the suspects were
arrested in the red Golf at
03h00 on 3 July 2017. According to him,
the time was about 4 hours after the commission of the offence. Sgt
Thala had further testified
that according to the information he had
in the docket, the only person who was mentioned as a suspect by the
witness was one Athi.
According to him, he could not find a statement
mentioning a person amongst the occupants of the red Golf as the
person who had
shot the deceased.
[16]
The
first respondent testified in support of the respondents’ case.
According to the first respondent, they were arrested
on 2 July 2017
on the freeway to Motherwell. At the time of the arrest, he was
travelling in a red Golf with 6 people, including
the first
respondent. According to him, the second respondent is his girlfriend
and mother of their child. According to the first
respondent, when
they were arrested by the police, they were forced to lay down and
were informed by the police that they were
looking for Athi. The
police took them into a police vehicle and drove to KwaZakhele police
station. The police further took them
to Motherwell police station
where samples were taken from their mouths and testing was performed.
After the tests were conducted,
the police took them back to
KwaZakhele police station where they were detained in separate police
cells. The first respondent
testified that he was detained in a
single cell until he was released on 4 July 2017.
[17]
The
first respondent further described the conditions of the police cells
in which he was detained. According to him, he had to
sleep on a very
slim cover which was on the floor and he was given one blanket. The
police had informed him that the vehicle that
they were travelling in
was suspected in the commission of a murder.
[18]
The
second respondent did not testify.
The
Legal Principles
[19]
The
appellant relied upon the provisions of section 40(1)(b) of the CPA
to justify the respondents’ arrest and detention.
Section
40(1)(b) empowers a peace officer to arrest without a warrant any
person ‘whom he reasonably suspects of having committed
an
offence referred to in schedule 1, other than the offence of escaping
from custody’. In terms of this section, what must
be enquired
- is whether the arresting officer had reasonable suspicion.
[20]
In
Minister
of Safety and Security v Sekhoto
[2]
,
Harms
DP stated:
“
As
was held in Duncan v Minister of Law and Order
[3]
,
the jurisdictional facts for a s 40(1)(b) defence are that (i) the
arrestor must be a peace officer; (ii) the arrestor must entertain
a
suspicion; (iii) the suspicion must be that the suspect (arrestee)
committed an offence referred to in Schedule 1; and (iv) the
suspicion must rest on reasonable grounds.”
[21]
The
appellant, in an endeavour to justify the arrest of the respondents
without a warrant, had adduced evidence of the arresting
officer and
the investigating officer. The upshot of their evidence has been set
out in the summary above.
[22]
The
arresting officer need not be satisfied that the evidence proves
beyond a reasonable doubt that the offence had been committed.
In
Shaaban
Bin Hussien and Others v Chong Fook
I
Kam
and Another
[1969]
3 All ER 1627
(PC) at 1630 quoted with approval in
Duncan
[4]
-
suspicion
in its ordinary meaning is a state of conjecture or surmise where
proof is lacking. I suspect, but cannot prove. Suspicion
arises at or
near the starting point of an investigation of which the obtaining of
prima facie proof is the end. An arresting officer
is required to
assess the information at his or her disposal and decide whether it
is sufficient to ground a reasonable suspicion,
Mabona
and Another v Minister of Law and Order and Others
[5]
.
[23] Section
50 of the CPA allows the police to lawfully detain an arrested person
for a period not exceeding
48 hrs before bringing him before a Court
or releasing him, hence an arrest made under section 40(1)(b) of the
Act is not unlawful
where the arrestor entertained the required
reasonable suspicion, but intends to make further inquiries after the
arrest before
finally deciding whether to proceed with a prosecution.
[24]
In
Minister
of Safety & Security v Sekhoto
[6]
it
was observed –
‘
if
the jurisdictional requirements are satisfied, the peace officer may
invoke the power conferred by the subsection, i.e, he may
arrest the
suspect. In other words, he then has a discretion as to whether or
not to exercise that power (cf Hogate-Mohammed v
Duke (198411 All ER
1054 (HL) at 1057). … But the grounds on which the exercise of
such a discretion can be questioned are
narrowly circumscribed.
Whether every improper application of a discretion conferred by the
subsection will render an arrest unlawful,
need not be considered
because it does not arise in this case.’
[25] The
appellant, in the plea, had also relied upon the provisions of
section 40(1)(f), and that subsection
reads –
‘
who
is found at any place by night in circumstances which afford
reasonable grounds for believing that such person has committed
or is
about to commit an offence;’
[26] As
I understand the appellant’s case before the Magistrate, this
Court and the totality of the
evidence presented by the appellant,
the defence based on section 40(1)(f) had not been pursued. This
appeal turns on whether the
appellant’s witnesses had
established the defence based on section 40(1)(b). I consider
evidence in this regard.
Discussion
(i)
The
lawfulness of the arrest
[27] In
his judgment, the Magistrate had found that the appellant’s
witnesses, when the evidence is
considered as a whole, failed to
discharge the onus that rests upon the appellant to justify the
arrest and detention of the respondents.
In support of his
conclusion, the Magistrate reasoned as follows: –
‘
According
to evidence the perpetrator was known by name and there is no reason
the police can take days to verify actual name of
suspects,
furthermore one Athi was mentioned as the perpetrator of crime not
six people. It was very easy for the police to sift
and find that
this Athi is not one of the passengers and that process would not
have taken days. … The Defendant’s
evidence falls below
the requirements as set out in case of
Mabona & Another v
Minister of Law and Order 2 other
1988 (2) s a 654 (SE) at 658 E
at 658 H.’
[28] Mr
Mnyani
, counsel for the appellant, had contended before this
Court that the Magistrate, in coming to his conclusion that the
appellant’s
witnesses failed to justify the arrest and
detention of the respondents, had erred or misdirected himself in
many respects, and
that he had ignored the evidence of Sgt Flatela.
Mr
Mnyani
submitted that Sgt Flatela had entertained a
reasonable suspicion that the respondents were involved in the
commission of the offence
of murder at Seyisi Area, KwaZakhele.
[29] The
contention, in this regard, was that the arresting officer’s
belief was based on information
of sufficiently high quality and
cogency and that it was based on solid grounds. Mr
Mnyani
contended that it was important to consider the fact that Sgt
Flatela had attended the crime scene at 12 midnight and that he
received
information from a member of the community. He further
contended that the red Golf was stopped by Sgt Flatela’s
colleagues
within a short space of time and that the occupants of the
red Golf were immediately arrested upon his arrival thereat. He
emphasized
that the person who had shot the deceased had fled in a
red Golf and therefore, the police had reasonable suspicion for
arresting
the occupants of the red Golf.
[30]
In
advancing this contention, Mr
Mnyani
had inter alia relied on the authority of
Minister
of Safety & Security v Magagula
[7]
.
In that case the police had sufficient information at their
disposal to arrest based on a confession by a co-perpetrator
which
corroborated information at their disposal and the suspect pointed
out the person and the suspect’s identity was also
confirmed by
his co-employee and by himself.
[31]
In
the
Magagula
case, it was held that - the facts known to Inspector Nel are
sufficient to establish the existence of a suspicion. That suspicion
was reasonably held as the facts objectively considered establish
reasonable grounds for him to have had the suspicion.
[8]
The same cannot be said on a careful consideration of the facts in
this case. Mr
Mnyani
had also relied on the authority of
Minister
of Police v Bosman & Others
[9]
.
In this case, it was held that –
‘
Goeda
testified that once he had instructed the occupants to disembark from
the bakkie, he stood outside the police vehicle. He
could not say
with certainty that he heard all of the information in respect of the
shooting incident over the radio. It does not
appear from Goeda’s
testimony that there was mention of any names specifically
communicated over the radio. Even if this
Court were to accept that
Goeda may have heard the names of the suspects involved in the
shooting incident (and that not all of
the respondents were suspects)
over the radio, a firearm with live ammunition was found to have been
thrown out of the fleeing
bakkie in which all the respondents were
occupants, which gave rise to a reasonable suspicion that they were
involved in the shooting
incident at Malabar and the possession of
the firearm. In such circumstances it was reasonable for Goeda to
arrest all the respondents,
in order to conduct further investigation
in this regard, as it could not be immediately determined which of
the respondents may
have potentially used the firearm in the shooting
incident. This was not unreasonable in the circumstances.’
[32] In
this case, Sgt Flatela did not have the details of the person that
had shot the deceased at Seyisi
Area, KwaZakhele. He had no
information about the details of the person who had run into the red
Golf. He did not even know whether
the person was a male or a female.
He did not ask the informant / community members vital questions
pertaining to the identity
of the person who had shot the deceased or
who was seen there. He did not ask whether the person was male or
female, how the person
was attired, what race group the person
belonged to, what was his or her complexion, whether there were any
identifying features,
whether he saw the registration letters and
numbers of the red Golf, what time he last saw the person and the
vehicle. He did not
enquire from the informant or witness how many
occupants were in the Golf that this person boarded or inquire from
him the time
he saw the person boarding this vehicle. The information
at his disposal was so scant that it could not warrant the arrest of
seven
occupants of a red Golf that was found some time after the
shooting. There was paucity of information about the identity of the
suspect. Whilst the evidence is that only one person had shot the
deceased and ran into a Golf, Sgt Flatela arrested 7 persons,
1 of
them was a female. More significantly, there was no evidence found in
the red Golf, after it was stopped and searched, which
linked any of
the occupants of the red Golf to the offence. Other than what Flatela
was told by the undisclosed member of the community,
there was simply
no link to the offence of any of the occupants of the vehicle. In
these circumstances, Sgt Flatela had a duty
to assess the information
at his disposal and confirm whether there was a link between the
commission of the offence and the occupants
of the red Golf. He did
not do so. These facts are distinguishable from those of the
Bosman
case upon which Mr
Mnyani
had relied.
[33]
In
Minister
of Police & Another v Muller
[10]
it was stated –
‘
Reverting
to the provisions of s 40(1)(b) of the CPA, as recorded earlier, in
order to carry out an arrest in terms of these provisions,
the
arresting officer must harbour a reasonable suspicion that an offence
had been committed. In
Mabona
[11]
Jones J considered what was required for a suspicion to be reasonable
in the context of s 40(1)(b) of the CPA. He recorded:
“…
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 on solid
grounds. Otherwise, it will be flighty or
arbitrary, and not a reasonable suspicion.”’
[34]
In
my view, a reasonable police officer would have analysed and assessed
the quality of the information at his disposal critically,
and he
would not have accepted it lightly or without checking. I agree with
the reasoning of the Magistrate and he correctly relied
on the
Mabona
judgment.
Sgt Flatela had failed to justify the arrest of the respondents and
therefore the Magistrate correctly found that the
arrest was
unlawful. The information at the disposal of Sgt Flatela was too
scanty to ground a reasonable suspicion which is required
in terms of
section 40(1)(b) of the CPA.
[12]
The
lawfulness of the detention
[35] The
Magistrate, in his judgment, had found that there were no legitimate
basis for the detention of
the occupants of the red Golf and that
consequently, the detention of the respondents was unlawful. In this
regard, the Magistrate
had reasoned that the police could not have
taken days in order to verify the suspect. According to the
Magistrate it was easy
for the police to establish whether Athi was
among the arrested occupants of the red Golf. I agree. Mr
Mnyani
had criticised the reasoning of the Magistrate in this regard and
contended that the Magistrate had misdirected himself. Mr
Mnyani
relied, in this regard, on the evidence of Sgt Flatela, the upshot of
which amounted to this summary, in essence:
(a) the
occupants of the red Golf were arrested in the early hours of 3 July
2017; and
(b) the
detention of the occupants of the red Golf was for purposes of
conducting further investigations
by prima residue testing, buccal
samples and questioning of the arrested persons.
[36] Mr
Manyani’s criticisms are unfounded if one has regard to the
fact there was no evidence linking
the respondents and the occupants
of the red Golf to the offence of murder. There was an inherent duty
upon the police to verify
and assess the information at their
disposal in order to determine whether they had arrested and would
ultimately detain the correct
persons for the offence. There was no
evidence to indicate how long it would take to get the results of the
prima residue, nor
was there evidence to suggest that it was
necessary to detain all the suspects. The paucity of evidence leading
to the arrest of
the suspects, as illustrated above was still present
during the detention of the suspects, as none of that information had
been
obtained at the time of detention.
[37] More
significantly, Sgt Thala conducted his own investigations at about
10h30 on 3 July 2017 after he
had received the docket from his
superior. He had realised that there was not enough evidence to link
the arrested persons to the
offence. He concluded that they should be
released. However, he further delayed the release of the arrested
persons, waiting for
his superior, although he had confirmed that
there was no evidence to link them with the offence. This further
detention of the
respondents could not be justified. This much was
conceded by the appellant’s counsel, that even if this court
had found
the arrest and the initial detention lawful, the detention
after 10h30 would have been unlawful based on the testimony of the
investigating
officer. Accordingly, the detention of the respondents
was unlawful.
[38] Mr
Le Roux
, counsel for the respondents, had submitted that the
respondents ought to have been released at least on two distinct
occasions.
The first occasion was when their DNA samples and prima
residue tests were taken before they were detained. In this regard,
Mr
Le Roux
correctly, in my view, argued that there was no
reason given by the police on why the statements could not have been
taken at that
stage and the respondents immediately released. The
second occasion upon which the respondents ought to have been
released, was
after Sgt Thala had interviewed them on 3 July 2017 and
found that there was no evidence linking them to the offence. I agree
with
both submissions of Mr
Le Roux
. I therefore conclude, in
this regard, that the detention of the respondents from approximately
3h30 am on 3 July 2017 until their
release on 4 July 2017, was
unlawful.
Quantum
[39]
Mr
Mnyani
had contended that the amount awarded for damages as a result of the
unlawful arrest and detention of the respondents was excessive.
He
submitted that the Magistrate had not provided reasons for awarding
the amount of R80 000 in respect of each respondent.
I agree
with the submissions of Mr
Mnyani
in this regard. The judgment does not provide reasons in support of
the amount awarded. The judgment of the Magistrate merely makes
reference to the judgment of
Minister
of Safety & Security v Tyulu
[13]
and
Minister
of Police v Clyde Fillis
[14]
.
It
is not apparent from the Magistrate’s judgment how he applied
the guidance set out by the cases he relied upon. In my view
that is
a misdirection and this Court is entitled to assess the award of
damages.
[40]
In
Minister
of Safety & Security v Tyulu
[15]
the SCA held as follows-
‘
In
the assessment of damages for unlawful arrest and detention, it is
important to bear in mind that the primary purpose is not
to enrich
the aggrieved party, but to offer him or her some much-needed
solatium for his or her injured feelings. It is therefore
crucial
that serious attempts be made to ensure that the damages awarded are
commensurate with the injury inflicted. However, our
courts should be
astute to ensure that the awards they make for such infractions
reflect the importance of the right to personal
liberty and the
seriousness with which any arbitrary deprivation of personal liberty
is viewed in our law. I readily concede that
it is impossible to
determine an award of damages for this kind of injuria with any kind
of mathematical accuracy. Although it
is always helpful to have
regard to awards made in previous cases to serve as a guide, such an
approach if slavishly followed can
prove to be treacherous. The
correct approach is to have regard to all the facts of the particular
case and to determine the
quantum
of damages on such facts.’
[41]
In
Peterson
v Minister of Safety and Security
[16]
Plasket
J held-
‘
The
satisfaction in damages to which plaintiff is entitled falls to be
considered on the basis of the extent and nature of the violation
of
his personality (corpus, fama and dignitas). As no fixed or sliding
scale exists for the computation of such damages, the Court
is
required to make an estimate ex aequo et bono. The authors of Visser
and Potgieter’s Law of Damages 2
nd
ed, 475 have
extracted from our case law factors which can play a role in the
exercise.
The
circumstances under which the deprivation of liberty took place, the
presence of absence of improper motive or
malice
on the part
of the defendant; the harsh conduct of the defendants; the duration
and nature (eg solitary confinement) of the deprivation
of liberty;
the status, standing, age and health of the plaintiff; the extent of
the publicity given to the deprivation of liberty,
the presence or
absence of an apology or satisfactory explanation of the events by
the defendants; awards in previous comparable
cases; the fact that in
addition to physical freedom, other personality interests such as
honour and good name have been infringed,
the high valued of the
right to physical liberty; the effect of inflation; and the fact that
the action injuriarum also has a punitive
function.’
[42]
In
Phakamisa
Madingana v Minister of Police
[17]
Laing J awarded an amount of R80 000 for damages arising from
the arrest of the plaintiff on 18 May 2020 and released on 19
May
2020. The detention was for one day. The court had considered that
the plaintiff had been arrested in front of members of the
community.
The plaintiff was subjected to an embarrassing experience. He held a
position of high political office and he was a
leader in his church
and community.
[43]
In
Alvade
Daniel Francis v The Minister of Police and Another
[18]
the appellant was detained from 16 September 2019 until 20 September
2019. In this case, the appellant was kept in an overcrowded
cell of
40 to 50 persons sharing beds. The plaintiff was uncomfortable for
the reason that they were being robbed and there was
gang stuff.
Basic food was provided twice a day. The court, after assessing the
facts of the case, awarded damages in the amount
of R100 000.
[44]
In
Minister
of Police v Nazmoul Hoque
[19]
the court awarded damages in the amount of R60 000 for unlawful
arrest and detention. The plaintiff was arrested on 30 September
2019
at approximately 21h30 and released at approximately 08h05 on 1
October 2019.
[45]
In
Peterson
v Minister of Safety & Security
[20]
the plaintiff was in custody for 8 hours and awarded R60 000 in
2011. She was awarded separate amounts for breach of duty
and
assault.
[46]
In
Martins
v The Minister of Police
[21]
the plaintiff was also assaulted, arrested and detained by the police
for a period of over 24 hours. In this matter, Chetty J awarded
the
plaintiff R40 000 in respect of arrest and detention, and
R25 000 in respect of the assault.
[47]
In
Nel
v Minister of Police
[22]
Mbenenge JP, after considering awards made in this division,
concluded that it is quite a daunting task to draw comparison between
cases as they frequently lack information,
inter
alia
,
relating to the effect of the arrest upon the person.
[48]
In
Minister
of Police v Lonwabo Mjali & Others
[23]
the Full Bench awarded the plaintiff a sum of R100 000 for
unlawful arrest and detention which had spanned from 28 September
2014 until 30 September 2014. The plaintiff had testified that he was
arrested in full view of the members of society and that
he was
embarrassed and humiliated during his arrest. His further evidence
was that he was detained in a congested and filthy and
dirty cell.
The Full Court relied upon a number of cases for the factors to be
considered in determining an appropriate award:
-
“
[27]
On
the score of the purpose of an award of damages, the Constitutional
Court, in
Mahlangu
and Another v Minister of Police
[24]
,
held that damages are awarded to deter and prevent future
infringements of fundamental rights by organs of state. They are
a
gesture of goodwill to the aggrieved and they do not rectify the
wrong that took place. With these principles of law
in
mind, I turn to deal with the issues raised in the instant appeal.
[29]
In
EFF
and Others v Manuel
[25]
,
the
SCA emphasized that claims for unliquidated damages by their very
nature involve a determination by the court of an amount that
is just
and reasonable in the light of a number of indeterminable and
incommensurable factors and that in order to determine an
appropriate
award relevant evidence has to be presented and fully explored.
[40]
However,
I re-iterate that in the quantification of damages for which the
appellant was held liable, it was imperative that sufficient
evidence
be led and fully explored to aid a fair assessment of the damages
suffered by each of the respondents. The Court, in
Rahim
v The Minister of Home Affairs,
said
the following on this issue:
[27] The
deprivation of liberty is indeed a serious matter. In cases of
non-patrimonial loss where damages
are claimed the extent of damages
cannot be assessed with mathematical precision. In such cases the
exercise of a reasonable discretion
by the court and broad general
considerations play a decisive role in the process of
quantification.
This does not, of course, absolve a plaintiff
of adducing evidence which will enable a court to make an appropriate
and fair award.
In cases involving deprivation of liberty the amount
of satisfaction is calculated by the court
ex aequo et
bono
.
Inter alia
the following factors are
relevant: (i) circumstances under which the deprivation of liberty
took place; (ii) the conduct
of the defendants; and (iii) the nature
and duration of the deprivation. (Emphasis added)
[48]
That
being said, I share the Court’s sentiments in
Diljan
v Minister of Police
[26]
,
with
respect, when it held:
‘
[17]
Thus,
a balance should be struck between the award and the injury
inflicted. Much as the aggrieved party needs to get the
required
solatium
,
the defendant (the Minister in this instance) should not be treated
as a ‘cash-cow’ with infinite resources. The compensation
must be fair to both parties, and a fine balance must be carefully
struck, cognisant of the fact that the purpose is not to enrich
the
aggrieved party.’
[49] I
have considered the arguments by both Mr
Mnyani
and Mr
Le
Roux
and the relevant authorities. Regard being had to the fact
that the Constitution places a high premium on the right to freedom,
which includes the right not to be deprived of freedom without just
cause, the right to dignity, the right to privacy and the
circumstances under which the respondents were arrested in the early
hours of 3 July 2017, the unpleasant cells and the conduct
of the
police, especially that of Sgt Thala who failed to release the
respondents, after having satisfied himself that there was
no link
between the respondents and the commission of the crime at least at
10h30 on the 3
rd
.
[50] The
respondents were not arrested in full view of the public. The arrest
occurred in the early hours
of the day at approximately 03H30. The
respondents were in custody for approximately 36 hours. The first
respondent was detained
in a single cell. The circumstances under
which the second respondent was detained are unknown due to her
failure to testify. The
right to liberty is to be jealously guarded
and the infringement thereof appropriately compensated. The second
respondent on all
the available evidence even in the absence of her
own testimony was unlawfully deprived of inter alia her right to
liberty.
[51] Taking
due cognisance of all the relevant factors an amount of R50 000
each is considered an appropriate
amount as much needed solatium for
their injured feelings arising out of their wrongful arrest and
wrongful deprivation of liberty.
Costs
of appeal
[52] The
appeal was against both the merits and the quantum. The respondents
were successful in respect of
merits. Damages have been awarded to
the respondents in an amount more than what the appellant’s
counsel had proposed as
an appropriate award. In my view, the
respondents have been successful in their action against the
appellant. The appellant was
only successful in having the amount
reduced, but not to the amount he had considered appropriate. In such
circumstances, the respondents
were substantially successful and are
entitled to costs of the appeal. The costs of the appeal are
accordingly awarded in favour
of the respondents.
Conclusion
[53] The
appeal is unsuccessful against the findings of unlawful arrest and
detention.
[54] The
appeal is only successful to the extent that the award of damages for
the unlawful arrest and detention
would be reduced from the award of
R80 000 to an amount of R50 000. For the reason that the
appeal is successful only
to a very limited extent, the costs of the
appeal is awarded in favour of the respondents. Whilst the arrest was
unlawful due to
their failure to properly investigate prior to
arresting and detention, I must point out that the police had acted
expeditiously
in this particular case. The incident took place at
midnight. The police reaction is highly commendable and appreciated
as pointed
out by the magistrate as well.
Order
[55] In
the result the following order is made: –
(i)
The
findings of the magistrate that the arrest and detention of the first
and second plaintiff were wrongful and unlawful is confirmed.
(ii)
The
order of the Magistrate in respect of quantum is set aside and
replaced with the following order–
(a) The
defendant is directed to pay to the first and second plaintiffs the
sum of R50 000 each, arising
out of their unlawful arrest and
detention from the early hours of the 3 July 2017 to 4 July 2017, for
a period of approximately
36 hours.
(b) The
defendant is directed to pay interest on the aforesaid amount at the
legal rate from the date of
the judgment to date of payment.
(c) The
defendant is to pay the plaintiffs’ costs of suit, including
counsel’s fees not more
than 3 (three) times the tariff of the
Magistrate’s Court.
(iii) The
appellant is directed to pay the costs of the appeal.
M
NOTYESI
ACTING
JUDGE OF THE HIGH COURT
I
agree.
F
B A DAWOOD
JUDGE
OF THE HIGH COURT
Appearances:
Counsel
for the Appellant
:
Adv M Mnyani
Attorneys
for the Appellant
:
Dold & Stone
Inc
Makhanda
Counsel
for the Respondents :
Adv J D Le Roux
Attorneys
for the Respondents :
Neville Borman & Botha
Makhanda
Date
heard
: 26 February 2024
Dat
delivered
: 09 April 2024
[1]
Criminal
Procedure Act, 51 of 1977
[2]
Minister
of Safety and Security v Sekhoto
2011 (1) SACR 315
at page 315 at 320.
[3]
Shaaban
Bin Hussien and Others v Chong Fook
I
Kam
and Another
[1969]
3 All ER 1627
(PC) at 1630;
Duncan
v Minister of Law and Order
1986 (2) SA 805 (A).
[4]
Duncan
supra
[5]
Mabona
and Another v Minister of Law and Order and Others
1988
(2) SA 654
(SE) at page 658 D
[6]
Minister
of Safety & Security v Sekhoto
2011
(1) SACR 315
at page 327, para 29
[7]
Minister
of Safety & Security v Magagula
2017
JDR 1486 (SCA);
[2017] ZASCA 103
(unreported SCA Case No: 991/2016,
6 September 2017) at para [9]
[8]
The
Minister of Safety & Security v Magagula
,
supra at para 12
[9]
The
Minister of Police v Bosman & Others
(1163/2020)
[2021] ZASCA 172
unreported SCA case delivered on 9 December 2021
[10]
Minister
of Police & Another v Muller
2020 (1) SACR 432
(SCA) para 20
[11]
Mabona
v Minister of Law and Order
supra
at 658 E-H
[12]
Louw
and Another v Minister of Safety & Security & Others
2006
(2) SACR 178
(T) at 184 B-D
[13]
Minister
of Safety & Security v Tyulu
2009 (5) SA (SCA) 85
[14]
Minister
of Police v Clyde Fillis
Case No CA234/2014 delivered on 16 October 2018 (Grahamstown High
Court)
[15]
Tyulu
supra
[16]
Peterson
v Minister of Safety and Security
[2009]
ZAECGHC 65 at para 15
[17]
Phakamisa
Madingana v Minister of Police
Case No: 3411/2021, Eastern Cape Division, Makhanda, judgment
delivered on 4 April 2022
[18]
Alvade
Daniel Francis v The Minister of Police and Another
Case
No: CA141/2022, Eastern Cape Division, Makhanda, judgment delivered
on 7 March 2023
[19]
Minister
of Police v Nazmoul Hoque
Case
No: CA65/2022, Eastern Cape Division, Makhanda, judgment delivered
in May 2023
[20]
Peterson
v Minister of Safety & Security
supra
[21]
Martins
v The Minister of Police
(1400/2011)
[2013] ZAECPEHC 27 (4 June 2013)
[22]
(CA
62/2017 [2018] ZAECGHC) 23 January 2018
[23]
Minister
of Police v Lonwabo Mjali & Others
Case
No: CA 91/2022, Eastern Cape Division, Mthatha
[24]
Mahlangu
and Another v Minister of Police
(CCT
88/20)
[2021] ZACC 10
; 2021 (7) BLCR 698 (CC);
2021 (2) SACR 595
(CC) (14 May 2021).
[25]
EFF
and Others v Manuel (711/2019)
[2020] ZASCA 172
(17 December 2020).
[26]
Diljan
v Minister of Police
(Case
No. 764/2021) ZASCA 103 (24 June 2022).