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[2011] ZASCA 7
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Minister of Safety and Security v Kruger (183/10) [2011] ZASCA 7; 2011 (1) SACR 529 (SCA) (8 March 2011)
Links to summary
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case No: 183/10
In the matter between:
MINISTER OF SAFETY AND
SECURITY
...................................
Appellant
and
ROELOF PETRUS KRUGER
......................................................
Respondent
Neutral citation:
Minister
of Safety and Security v Kruger
(183/10)
[2011] ZASCA 7
(8 MARCH
2011)
Coram:
NUGENT, CACHALIA
and SHONGWE JJA
Heard:
16 FEBRUARY 2011
Delivered: 8 MARCH 2011
Summary:
Unlawful arrest
and detention –
s 55(1)
of the
South African Police Service Act
68 of 1995
– whether exempts state from liability –
defamation and injuria – damages award.
_____________________________________________________________________
ORDER
_____________________________________________________________________
On appeal from: North Gauteng
High Court, Pretoria (Tuchten AJ sitting as court of first instance)
The award of damages for
defamation and injuria is set aside and replaced with an award of
R20 000. Save for that the appeal
is dismissed with costs.
_______________________________________________________________________
JUDGMENT
_______________________________________________________________________
NUGENT JA (CACHALIA and SHONGWE
JJA concurring)
[1] Rayton is a small town of
about 2 500 inhabitants. It is where Mr Kruger (the respondent)
conducts business repairing motor
vehicles. While at his premises Mr
Kruger was arrested by the police under a warrant that had been
issued by a magistrate. He was
driven to a police station where he
was incarcerated overnight. The following day he was brought before a
magistrate and released
on bail. In due course the Director of Public
Prosecutions declined to prosecute.
[2] A reporter and a cameraman
from e-tv – a national television broadcaster – were
present at the premises when the
police arrived to arrest Mr Kruger.
They followed the police onto the premises and made a video and audio
recording of the arrest,
and of Mr Kruger being led away in handcuffs
to the waiting police vehicle. That night a report of the arrest –
accompanied
by visual images – was broadcast on one of its news
channels.
[3] Mr Kruger sued the Minister
of Safety and Security (the appellant) in the North Gauteng High
Court for damages, first, for unlawful
arrest and detention,
secondly, for infringement of his dignity, and thirdly, for
defamation. All the claims succeeded before Tuchten
AJ. He awarded
damages of R50 000 for unlawful arrest and detention and of
R300 000 for infringement of dignity and defamation
combined.
The Minister now appeals with the leave of that court.
[4] The chronicle commences with
a complaint that was made to the police by Ms Mahlangu. She said that
Mr Kruger had stolen a Mazda
motor vehicle from her by false
pretences. A considerable part of the evidence was taken up with that
complaint. Mr Kruger said
that he had been given the vehicle in
exchange for a Honda vehicle by agreement with a friend of Ms
Mahlangu who purported to be
acting on her behalf. The dispute on
that issue is not material and I need say no more about it.
[5] The complaint was
investigated by Sergeant Mavuso of the organized crime unit on the
instructions of Senior Superintendent Ngwenya.
The full extent of the
investigation does not appear from the evidence. But what does appear
is that Sergeant Mavuso discovered,
amongst other things, that the
Honda vehicle that had been the subject of the alleged exchange was
registered in Swaziland, and
he suspected that it had been stolen in
that country.
[6] Once his investigation was
complete Sergeant Mavuso forwarded the docket to the Director of
Public Prosecutions. Some time later
he was informed by a member of
that office that it had been decided to prosecute Mr Kruger and
Sergeant Mavuso was handed a warrant
that had been issued by a
magistrate authorising his arrest.
[7]
Section 43
of the
Criminal
Procedure Act 51 of 1977
authorises a magistrate or justice of the
peace to issue a warrant for the arrest of any person upon the
written application of
a public prosecutor (amongst others). The
application must set out the offence alleged to have been committed,
it must contain
certain jurisdictional allegations, and it must state
that from information taken upon oath there is a reasonable suspicion
that
the person in respect of whom the warrant is applied for has
committed the alleged offence.
[8] In this case the application
for the warrant, and the warrant itself, were both embodied in a
single-page standard-form. The
application recorded that Mr Kruger
was suspected to have committed fraud and forgery and uttering. The
space provided in the standard-form
warrant for recording the offence
was, however, left blank.
[9] At about 10h00 on 3 December
2003 Sergeant Mavuso and Senior Superintendent Ngwenya arrived at the
business premises of Mr Kruger
to effect his arrest. They were
accompanied by eight other police officers. At the premises with Mr
Kruger were his parents, another
relative, a number of employees and
two clients. Present outside the premises were the cameraman and the
reporter I referred to
earlier.
[10] Sergeant Mavuso and Senior
Superintendent Ngwenya entered the premises and proceeded to Mr
Kruger’s office. They were
followed by the cameraman who
recorded the interior of the premises and the arrest, which occurred
in the office of Mr Kruger.
Mr Kruger was told by Sergeant Mavuso
that he was under arrest and Senior Superintendent Ngwenya handcuffed
his wrists behind his
back. He was then led out to the police vehicle
and the events that I mentioned earlier ensued.
[11] The court
below found that the warrant of arrest was invalid – and thus
that the arrest and subsequent detention were
unlawful –
because it failed to reflect the offences in respect of which it was
issued. That finding was challenged only
faintly before us. The terms
in which a warrant of arrest must be framed are not expressly stated
in the Act but I think it is
implicit in
ss 39(2)
and
43
(2) that
it was intended that it should reflect the offence in respect of
which it has been issued.
Section 39(2)
requires a person who effects
an arrest without a warrant to inform the arrested person of the
cause of the arrest. Where the arrest
is effected in execution of a
warrant the arrestor must, upon demand of the arrested person, hand
him or her a copy of the warrant.
Quite clearly that contemplates
that the cause of the arrest will appear from the warrant. Moreover,
s 43(2)
provides that a warrant of arrest must direct the arrest
of the person named in the warrant ‘in respect of the offence
set
out in the warrant’. I think those two provisions make it
abundantly clear that it was considered by the draftsman to be
self-evident that a warrant must describe the offence and it was not
considered necessary to express that in terms. I also think
that it
must be taken to be axiomatic that a warrant that is formally
defective in a material respect – as the warrant was
in this
case – is invalid.
1
[12] Two
submissions that were advanced on behalf of the Minister can be
disposed of briefly. It was submitted that in this case
Mr Kruger
would have known the suspected offences for which he was being
arrested because they were described in the application
for the
warrant that appeared immediately above the warrant on the
single-page standard-form. I do not think the submission has
merit.
If the statute required the warrant to reflect the suspected offences
and rendered it invalid if it did not do so, as the
statute does,
then I think it follows that it is immaterial that they are apparent
from another source, even if that source is
readily to hand.
2
As Cameron JA
observed in
Powell
NO v Van der Merwe NO,
3
albeit in
relation to a warrant authorising search and seizure, the courts
examine the validity of such a warrant ‘with a
jealous regard
for the liberty of the subject’, and in my view that must apply
even more to warrants that authorise the deprivation
of personal
freedom.
[13] It was also submitted that
even if the warrant was invalid the arrest was nonetheless lawful
because the police had a reasonable
suspicion that offences had been
committed. That was not pleaded in justification of the arrest but
counsel submitted that the
issue was fully canvassed in the evidence.
I am not sure that the issue was indeed canvassed but in any event on
the evidence that
is before us the submission must fail. Section
s 40(1)(b) of the
Criminal Procedure Act confers
a discretion
upon a police officer to arrest upon reasonable suspicion that fraud
or forgery and uttering (amongst other offences)
have been committed.
In this case the police officers did not purport to exercise that
discretion. On the contrary, they purported
to do no more than to
execute the instruction contained in the warrant.
[14] But the principal ground
upon which the Minister sought to avoid liability was in reliance
upon
s 55(1)
of the
South African Police Service Act 68 of 1995
,
which exempts a police officer from liability for the consequences of
executing a defective warrant in certain circumstances.
It was
submitted on behalf of the Minister that because the police officer
is exempted from liability it follows that the state
cannot be
vicariously liable. Two decisions of the high courts stand in the way
of that submission and we were asked to overrule
them.
[15]
Section 55(1)
of that Act
provides as follows:
‘
Any
member who acts under a warrant or process which is bad in law on
account of a defect in the substance or form thereof shall,
if he or
she has no knowledge that such warrant or process is bad in law and
whether or not such defect is apparent from the face
of the warrant
or process, be exempt from liability in respect of such act as if the
warrant or process were valid in law’.
4
[16] The terms in which the
submission on behalf of the Minister was framed in the heads of
argument points immediately to its fallacy.
It is not disputed that
neither of the police officers was aware that the warrant was bad in
law and that they were thus exempted
from liability under that
section. Reminding us that vicarious liability is a secondary
liability counsel for the Minister submitted
that the effect of the
exemption was that the police officers ‘committed no delict’
and there is thus no room for vicarious
liability.
[17] That construction of the
section is not correct. A police officer – or anyone else for
that matter – who deprives
a person of his or her liberty
without legal justification commits a delict, and is ordinary liable
for the damage that is caused
by the delictual act. The section does
not purport to render the act lawful. In its terms it does no more
than to relieve the police
officer of the consequences of the
delictual act. The act remains unlawful and, in accordance with
ordinary principles, the employer
is vicariously liable for its
consequences.
[18] The same
argument was advanced and rejected in
Goldschagg
v Minister van Polisie.
5
In that case
the question arose under s 31(1) of the Police Act 7 of 1958,
which is in material respects the same as the provision
that is
before us.
6
Botha J
summarily rejected an argument that the effect of the section was
that a police officer who executes a defective warrant
does not
commit an unlawful act. The learned judge also found that while the
section exempted the police officer from the consequences
of the
unlawful act it did not similarly exempt the state.
7
(The decision
was reversed on appeal
8
but the issue
that is now before us was not considered.)
[19] Thirion J
reached the same conclusion in
De
Welzim v Regering van KwaZulu
9
in relation to
s 34(2) of the KwaZulu Police Act 14 of
1980.
10
The learned
judge said the following:
‘
By
‘n beskouing van art 34(2) is dit duidelik dat dit nie die
handeling van die lid van die Mag verontskuldig nie. Dit verskaf
nie
‘n skulduitsluitingsgrond nie en ook nie ‘n
regverdigingsgrond ten opsigte van die handeling nie. Dit stel slegs
die lid vry van aanspreeklikheid sonder dat dit die kwaliteit of
onregmatigheid van die daad self raak. Gevolglik beïnvloed
dit
nie die aanspreeklikheid van die KwaZulu Regering nie.’
11
[20] I have no
doubt that the decisions in
Goldschagg
and
De
Welzim
were
correct. I need only add that the draftsman of s 55(1) must be
assumed to have known of those decisions when the section was
drafted. The repetition in s 55(1) of the material terms of the
sections that were there in issue itself indicates that the
draftsman
intended s 55(1) to bear the construction that was adopted in
those cases.
12
In those
circumstances the finding by the court below that the Minister is
liable for the consequences of the unlawful arrest and
detention
cannot be faulted.
[21] I turn to the claims for
injuria and defamation before returning to the amount that was
awarded in damages.
[22] The broadcast on the night
of the arrest commenced with an introduction by the presenter who
said the following:
‘
It
could be the end of the road for a car theft syndicate operating
between Swaziland and South Africa. After a two year investigation,
Mpumulanga police today arrested the man believed to be the kingpin.
Police say the cars are stolen in Swaziland and sold in South
Africa.
They believe government officials in both countries and a local
insurance company are also involved.’
The broadcast then switched to
the reporter who opened her report as follows:
‘
It
was not business as usual at this car repair workshop. The boss was
arrested for vehicle theft, fraud and forgery’.
The interior of the workshop was
shown visually, followed by a visual and audio recording of a short
conversation between Senior
Superintendent Ngwenya and Mr Kruger
immediately after his arrest, and a visual showing of him being
handcuffed. The recording
went on to show Mr Kruger being led away to
the police vehicle with his hands handcuffed behind his back. The
reporter concluded
her report as follows:
‘
It
is alleged that cars stolen in Swaziland are brought here for
re-spraying and their engine numbers are also changed. Police say
they have identified three such vehicles but believe there are
others’.
[23] The visual images of Mr
Kruger showed only his torso at the time of his arrest, and his back
as he was being led away. His
name was not mentioned in the course of
the report. It is clear that only those who were acquainted with Mr
Kruger or his workshop
would have been capable of identifying him
from the report.
[24] It was alleged by Mr Kruger
that one or other police officer must have informed the television
team (or the television station)
of the anticipated arrest and to
have done so with the intention that it should be recorded and
broadcast. His case was that the
police officer concerned thereby
wrongfully ‘instigated’ the defamatory and injurious
broadcast and that the Minister
is vicariously liable for such damage
as the broadcast caused.
[25] The claim is rather unusual
but we are not called upon to deal with its substance. The sole
ground upon which the claim was
resisted in the court below and in
this court was a denial that the police were responsible for the
presence of the television
crew. We were told by counsel for the
Minister unequivocally that if we were to find that the presence of
the television team was
indeed brought about by information provided
by one or other police officer – which was the finding of the
court below –
then it was accepted that the Minister is liable
for any damage that was caused by the broadcast. We have accordingly
approached
the matter on that basis but I must emphasise that we make
no finding on other aspects of the claim.
[26] I turn to that factual
question. The television reporter, Ms Mabuse, gave evidence. She said
that she had no recollection of
how they came to be present at the
scene but that it might have been on information provided by the
police. Only two other possibilities
were suggested by counsel for
the Minister. One was that the television team happened upon the
scene fortuitously. The prospect
that a television team from a
national broadcaster fortuitously happened to be outside a motor
vehicle workshop in Rayton at the
time the police arrived is so
remote as to be non-existent. The second suggestion was that one or
other member of the community
might have been the culprit. It is most
unlikely that members of the local community would have known of the
imminent arrest and
least of all of the nature of the investigation
that the police had undertaken. I agree with the court below that it
is probable
that one or other member of the police informed e-tv of
the anticipated arrest so that it could be given publicity. That
being
so, on the approach that was adopted on behalf of the Minister
before us (and in the court below) the only remaining issue is to
assess the damages to be awarded for the consequences of the
broadcast.
[27] It is trite that the
determination of damages is within the discretion of the trial court
and will be interfered with only
in the event of misdirection.
Misdirection might in some cases be apparent from the reasoning of
the court but in other cases it
might be inferred from a grossly
excessive award.
[28] It has
been said repeatedly that the assessment of awards of general damages
with reference to awards made in previous cases
is fraught with
difficulty. They nonetheless provide a measure of guidance provided
that those difficulties are borne in mind.
As Potgieter JA said in
Protea
Assurance Co Ltd v Lamb
,
13
after citing
earlier decisions of this court:
‘
The
above quoted passages from decisions of this Court indicate that, to
the limited extent and subject to the qualifications therein
set
forth, the trial Court or the Court of Appeal, as the case may be,
may pay regard to comparable cases. It should be emphasised,
however,
that this process of comparison does not take the form of a
meticulous examination of awards made in other cases in order
to fix
the amount of compensation; nor should the process be allowed so to
dominate the enquiry as to become a fetter upon the
Court’s
general discretion in such matters. Comparable cases, when available,
should rather be used to afford some guidance,
in a general way,
towards assisting the Court in arriving at an award which is not
substantially out of general accord with previous
awards in broadly
similar cases, regard being had to all the factors which are
considered to be relevant in the assessment of general
damages. At
the same time it may be permissible, in an appropriate case, to test
any assessment arrived at upon this basis by reference
to the general
pattern of previous awards in cases where the injuries and their
sequelae
may
have been either more serious or less than those in the case under
consideration.’
[29] I turn
first to the award for unlawful arrest and detention. An appropriate
award in a case of that kind – with reference
to awards in some
past cases – was considered most recently by this court in
Seymour
v Minister of Safety and Security
.
14
In that case
the plaintiff was unlawfully arrested and detained for five days. One
night was spent in a police cell together with
other inmates, and the
remaining time was spent in a hospital ward, to which the family of
the plaintiff had free access. An award
of R500 000 was reduced
on appeal to R90 000.
[30] On the face of it the arrest
and detention in this case, by comparison, might seem to warrant a
substantially lower award,
but there is a materially aggravating
factor. To be arrested, even lawfully, is inherently humiliating. So
much more so when a
cameraman has grossly invaded the privacy of the
arrestee by entering upon his or her premises without permission and
thereupon
recorded the arrest. In this case the police permitted –
indeed, they probably invited – all that to take place. Given
that aggravating factor I see no reason to conclude that the award
was excessive – and least of all that it was grossly excessive.
There was no cross-appeal against the award.
[31] Before
leaving this topic there is an observation that needs to be made. The
police have a duty to carry out policing in the
ordinary way. They
have no business setting out to turn an arrest into a showpiece.
Similar conduct, on that occasion by officials
of the Competition
Commission who were executing a warrant for search and seizure,
evoked the censure of this court in
Pretoria
Portland Cement Co Ltd v Competition Commission.
15
When executing
a warrant of arrest the police are obliged to do so with due regard
to the dignity and the privacy of the person
being arrested. The
conduct of the police in permitting – indeed, inviting –
a cameraman to invade the premises of
Mr Kruger in order to witness
the arrest warrants equal censure.
[32] While the award for unlawful
arrest and detention cannot be faulted, the same cannot be said for
the award that was made for
injuria and defamation. Two factors that
come to the fore in making an assessment are the seriousness of the
defamation and the
extent of the publication.
[33] In this
case the substance of the defamation was that Mr Kruger had been
arrested on suspicion of having committed various
offences. It was
pointed out by this court in
Independent
Newspapers Holdings Ltd v Suliman
16
that to allege
that a person has been arrested does not imply that he or she is
guilty, but it does imply that there is a reasonable
suspicion that
he or she has committed the relevant offence, which is itself
defamatory.
17
In that case
the majority
18
held that
before the suspect is brought before a court it is generally not in
the public interest or of public benefit that the
identity of the
arrested suspect should be disclosed, even if the allegation is
true.
19
But once the
suspect has been brought before a court his or her identity may be
published with impunity.
20
[34] Although
the truth of the allegation, by itself, provides no defence to a
claim for defamation, it seems to me that it must
nonetheless be
relevant to the assessment of damages. For the action for defamation
protects reputation and it is difficult to
see why a person should be
compensated for loss of reputation if the reputation is in truth not
deserved.
21
[35] In this case the allegations
made in the report were in some respects materially untrue. It is
apparent from the application
for the warrant that Mr Kruger was not
arrested on suspicion of ‘car theft’ but on suspicion of
fraud and forgery and
uttering. And as pointed out by the court
below, Sergeant Mavuso was not of the belief that Mr Kruger was the
‘kingpin’
of a ‘car theft syndicate’, and
there is no evidence that anyone else in the police held that
suspicion. Nonetheless,
it is not disputed that the police suspected
on reasonable grounds that he had committed fraud and forgery and
uttering –
which are themselves serious offences of dishonesty.
[36] As for the breadth of the
publication the identity of Mr Kruger is likely to have reached a
decidedly limited audience notwithstanding
that the broadcast was on
national television. I have pointed out that his identity would have
been known only to those who were
acquainted with Mr Kruger or his
business premises who would mainly have been the inhabitants of
Rayton. Although the evidence
establishes that news of the arrest
quickly spread throughout the town it is by no means clear that that
was in consequence of
the broadcast. Indeed, it is likely that news
of the event would have become the talk of a small town by word of
mouth even without
the broadcast. Nonetheless I have accepted that
the broadcast reached at least some residents of Rayton and others
who knew Mr
Kruger.
[37] The plaintiff in
Suliman
was alleged to have been arrested on suspicion of having been
associated with the bombing of a nightclub – a particularly
heinous crime. His identity was made known and it was published
repeatedly in a newspaper that had a wide circulation in an area
in
which the plaintiff was well known. He was awarded R50 000 for
defamation and injuria. In comparison to that award alone,
the award
of R300 000 in the present case, in which both the nature of the
defamation and the breadth of publication was decidedly
more limited,
was in my view grossly excessive, which points to misdirection. In
the circumstances we are at large to reassess
the award. It was held
in
Suliman
that the injuria that is associated with defamation
is a separate wrong but in that case, as in the present, a combined
award was
made. In the light of the considerations above, and in
particular the award in
Suliman
, in my view the present wrongs
are deserving of damages of no more than R20 000.
[38] Counsel for the Minister
informed us that even if the award is reduced, Mr Kruger has
nonetheless had substantial success,
in that the appeal was brought
primarily to disturb the finding that the Minister is not exempt from
liability for wrongful arrest
by reason of s 55(1), and that Mr
Kruger is entitled to his costs.
[39] Accordingly the award of
damages for defamation and injuria is set aside and replaced with an
award of R20 000. Save for
that the appeal is dismissed with
costs.
_________________
R W NUGENT
JUDGE OF APPEAL
APPEARANCES:
For
appellant: B R Tokota SC
M
S Mphahlele
Instructed
by:
State
Attorney, Pretoria
State
Attorney, Bloemfontein
For
respondent: J J S Prinsloo SC
Instructed
by:
De
Klerk & Marais Inc, Pretoria
Webbers,
Bloemfontein
1
Cf
Minister of Safety and Security v Van der Merwe
(55/09)
[2010] ZASCA 101
;
[2011] 1 All SA 260
(SCA).
2
Cf
Thint (Pty) Ltd v National Director of Public Prosecutions
2009
(1) SA 1
(CC) para 159 in relation to warrants authorising search
and seizure.
3
2005
(5) SA 62
(SCA) para 59.
4
Section
331
of the
Criminal Procedure Act is
in identical terms except that
it extends beyond police officers.
5
1979
(3) SA 1284 (T).
6
Section
31(1)
reads as follows:
‘
If
any legal proceedings be brought against any member of the Force for
any act done in obedience to a warrant purporting to be
issued by a
magistrate or justice of the peace or other officer authorized by
law to issue warrants, that member shall not be
liable for any
irregularity in the issuing of the warrant or for the want of
jurisdiction in the person issuing the same, and
upon producing the
warrant containing the signature of the person reputed to be a
magistrate or justice of the peace or other
such officer as
aforesaid, and upon proof that the acts complained of were done in
obedience to the warrant, judgment shall be
given in favour of such
member.’
7
The
learned judge also inferred from the judgment of this court in
Minister van die Suid Afrikaanse Polisie v Kraatz
1973 (3) SA
490
(A) at 1302A-B that the trial court had supported that
conclusion (the issue was not dealt with on appeal). I have had the
advantage
of access to the judgment of the trial court – which
was not available to the learned judge – from which it appears
that the point that is now before us was not pertinently considered
by that court.
8
Minister
van Polisie v Goldschagg
1981 (1) SA 37
(A)
9
1990
(2) SA 915
(N).
10
Quoted
in the judgment at 920F-H as follows:
‘’
n
Lid van die Mag wat ter goeder trou ‘n handeling verrig
ooreenkomstig of in die tenuitvoerlegging van ‘n bepaling
wat
‘n verordening van ‘n bevoegde wetgewende gesag heet te
wees is, ondanks enige onreëlmatigheid in verband
met die
verordening van of gebrek in so ‘n bepaling of afwesigheid van
regsbevoegdheid van daardie wetgewende gesag, vry
van
aanspreeklikheid ten opsigte van die verrigting van daardie
handeling in dieselfde mate en onderworpe aan dieselfde voorwaardes
asof daardie onreëlmatigheid nie plaasgevind het of daardie
gebrek of afwesigheid van regsbevoegdheid nie bestaan het nie.’
11
At
923H-I.
12
LC
Steyn: Die Uitleg van Wette
(1981) by S I E Van Tonder
assisted by N P Badenhorst, C N Volschenk and J N Wepener 5ed p 132.
13
1971
(1) SA 530
(A) at 535H-536B.
14
2006
(6) SA 320
(SCA).
15
2003
(2) SA 385
(SCA).
16
[2004]
3 All SA 137
(SCA).
17
Paras
31 and 78.
18
Marais,
Scott and Mthiyane JJA, Ponnan AJA and I dissenting.
19
Para
47.
20
Para
47.
21
Cf
Johnson v
Rand Daily Mails
1928 AD 190
at 206.