About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2022
>>
[2022] ZAFSHC 301
|
|
Le Roux and Another v Minister of Police Republic of South Africa and Another (1340/2018) [2022] ZAFSHC 301 (4 November 2022)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 1340/2018
1343/2018
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
CHARNDREI
LE ROUX
1
st
Plaintiff
CHARMAINE
LE ROUX
2
nd
Plaintiff
and
MINISTER
OF POLICE: REPUBLIC OF
SOUTH
AFRICA
1st
Defendant
NATIONAL
DIRECTOR OF PUBLIC PROSECUTIONS
2nd
Defendant
JUDGMENT
BY:
REINDERS
ADJP
HEARD
ON:
13
MAY 2022
DELIVERED
ON:
4
NOVEMBER 2022
[1]
Mrs Charmaine Le Roux, the plaintiff under case number 1343/2018, is
the mother of
Ms Charndrei Le Roux, the plaintiff under case number
1340/2018. For ease of reference Ms Le Roux will be referred to as
the first
plaintiff, and Mrs Le Roux as the second plaintiff or
interchangeably on their first names (or collectively the
plaintiffs). Such
references are with no intent of disrespect but
merely for ease of clarity. The first defendant is the Minister of
Police (the
defendant). Reference to all other witnesses will be as
indicated once mentioned.
[2]
The plaintiffs instituted action
against the defendant claiming damages arising from their
alleged
unlawful arrest and detention. It is common cause that they
were arrested without warrants on 1 September 2015 and
detained until
8 September 2015 when they were released on bail.
[3]
The defendant disputed the unlawfulness of the arrests and subsequent
detentions.
More specifically, reliance is placed on s 40(1)(b) of
the Criminal Procedure Act 51 of 1977 (the CPA) which stipulates that
a
peace officer may without a warrant arrest any person “
whom
he reasonably suspects of having committed an offence referred to in
Schedule 1 …”
[5]
To prove their cases both plaintiffs testified and called Mr Jerry
Brummer (Jerry).
The defendant presented the evidence of members of
the South African Police Services (SAPS). Mr Wiese (at the time
Warrant Officer
Wiese (Wiese), Warrant Officer Fouché
(Fouché), Sgt Khene (Khene) and Captain Mokgobo (Mokgobo)
testified.
[6]
It is common cause that one Mrs Buschouw (the victim/Mrs Buschouw)
was attacked and
seriously injured when she went jogging in a
Bloemfontein suburb in the early hours of 31 July 2015. The averred
unlawful arrests
and detentions have their origin in this incident.
[7]
The upshot of the testimonies of the plaintiffs related to their
arrests at their
place of residence (a smallholding) on 1 September
2015. The plaintiffs testified on what had transpired on the said
day. They
testified in essence that they were approached by several
police officers. It became common cause that the said police officers
were Khene, Wiese and Jacobs. The plaintiffs testified that a female
officer accompanied them in the police van. This was corroborated
by
Khene who testified that he had given instructions that a female
officer should accompany the team as females would be involved.
Although there were discrepancies relating to whether the arrests
were effected on the smallholding or at the police stations,
I have
no reason not to believe the evidence of Wiese that he effected the
arrests on the plaintiffs at the smallholding. According
to Charmaine
they were not properly informed of the reasons for their arrest,
which was echoed by Charndrei. Thereafter they were
transported in a
police vehicle to Park Road Police Station, interrogated and later
detained at separate police stations (Charmaine
was detained at
Bayswater Police Station). The evidence of Jerry in my view did not
take the matter any further. Whether he had
been assaulted by the
police to make a statement is of no consequence for determination by
this court on the unlawfulness of the
arrests of the plaintiffs.
Although he likewise instituted action against the defendant for
unlawful arrest and detention, I was
not called upon to adjudicate
thereupon.
[8]
According to Fouché he arrested Jerry at the smallholding
(where the plaintiffs
resided) earlier that morning in the company of
and on Khene’s request to do so. Wiese, who was also present
during the arrest,
confirmed the arrest. Jerry was transported to the
Parkweg Police Station where he was interrogated. Khene testified
that Jerry
divulged information which subsequently led to the
aforementioned arrests of Charmaine and Charndrei later that day.
Khene’s
evidence will be addressed in more detail herein below.
The evidence of Wiese confirmed that he was requested by Khene to
effect
the arrests on the plaintiffs at the smallholding.
[9]
The defendant bore the onus of proving that the said arrests were
lawful. In
Duncan
v Minister of Law and Order
[1]
it was held that:
“
The
jurisdictional facts which must exist before the power conferred by
section 40(1)(b) of the present Act may be invoked, are
as follows:
The
arrestor must be a peace officer; he must entertain a suspicion; it
must be a suspicion that the arrestee committed an offence
referred
to in Schedule 1 to the Act and that suspicion must rest on
reasonable grounds.”
[10]
Khene testified that he attended to the scene of the crime and,
although he was not the Investigating
Officer (one Sgt Methu was the
IO) he remained in contact with the victim and her husband after
having met them shortly after the
attack had occurred. At “
some
stage during the investigation”
they contacted him
regarding certain information, but he was unable to state exactly
when this had occurred. The said information
led to the victim’s
husband accompanying him to the residence of the plaintiffs where
Jerry was found. This information was
not in any way discussed by him
with the IO. Khene testified that Jerry was arrested at Park Road
Police Station after he confessed
that he was the person who attacked
the victim. According to Khene the names of Charmaine and Charndrei
were specifically mentioned
by Jerry, who told him that he had been
offered an amount of R 20 000-00 to effect the assault. No notes
were made by him,
and he only made a statement on 2 September 2015 on
the information provided to him by Jerry. When prompted during
cross-examination
on what exactly was conveyed to him by Jerry, Kene
was vague and responded: “
what he said to me is in my
statement.”
Khene testified that he could not remember
speaking to the plaintiffs prior to them being arrested by Wiese, but
could only recall
that at “
some stage”
he
interviewed the plaintiffs and confronted them with the information
in his possession and “
they denied everything”.
He
was not involved in the process to have Jerry appear before a
magistrate in terms of Sec 217(b) of the CPA. In fact, he was unaware
that this had transpired.
[11]
It is not disputed that Khene made his statement regarding the
information given to him by Jerry
during his interrogation, only on
the following day, 2 September 2015. The alleged confession of Jerry
was likewise only reduced
to writing on 2 September 2015 before
Mokgobo who took down Jerry’s warning statement. Both the
victim and her husband made
statements detailing their suspicions and
the basis therefore. However, these statements were attested to after
the arrests of
the plaintiffs respectively on 5 and 9 November 2015
(as evidenced by the Trial Bundle).
[13]
In the case of
Zealand
v Minister of Justice and Constitutional Development and Another
[2]
Langa CJ held as follows:
“
The
constitution enshrines the right to freedom and security of the
person, including the right not to be deprived of freedom arbitrarily
or without just cause, as well as the founding value of freedom…
The respondent then bore the burden to justify the deprivation
of
liberty, whatever form it may have taken.” As stated by
O’Reagan J in S v Coetzee and Others [There are] two different
aspects of freedom: the first is concerned particularly with the
reasons for which the state may deprive someone of freedom [the
substantive component]; and the second is concerned with the manner
whereby a person is deprived of freedom [the procedural component].
Our constitution recognizes that both aspects are important in a
democracy: the state may not deprive its citizens of liberty for
reasons that are not acceptable, nor, when it deprive citizens of
freedom for acceptable reasons, may it do so in a manner which
is
procedurally unfair.”
[14]
This was echoed in
Minister
of Law and Order and Others v Hurley and Another
[3]
the
following is stated:
“
An
arrest constitutes an interference with the liberty of the individual
concerned, and it therefore seems to be fair and just to
require that
the person who arrested or caused the arrest of another person should
bear the onus of proving that his action was
justified in law.”
[15]
In the matter at hand the defendant admitted to the arrest and
subsequent detention of the plaintiffs,
but pleaded that it was
justified because the arresting officer had a reasonable suspicion
that plaintiffs had made themselves
guilty of an offence as referred
to in Schedule
1 Act 51
of 1977, namely attempted murder/conspiracy
to commit murder.
[16]
Duncan
supra
referred to
Ingram
v Minister of Justice
[4]
where the test to be applied was stated as follows:
“
The
words, ‘reasonable suspicion’ may tend to indicate some
subjective test to be applied; however, that is not so;
the test as
to whether “reasonable suspicion” could have existed and
did exist, it to be determined by an objection
standard, namely that
of the reasonable man with the knowledge and experience of a peace
officer based on the facts and circumstances
then known to the
arresting officer.”
[18]
With reference to the matter of
Mabona
and Another v Minister of Law and Order and Others
[5]
the crucial question to be asked is stated as follows (at 658 E-G):
“
Would
a reasonable man in the second defendant’s position and
possessed with 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 be stolen?
The reasonable man will
therefore analyse and assess the information at his disposal
critically, and he will not accept 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 justify an
arrest.
This is not to say the information at his disposal
must be of sufficiently high quality and cogency to engender in him
conviction
that the suspect is in fact guilty. The section requires
suspicion and not certainty. However, the suspicion must be based on
solid
grounds.”
And
further at 658 E-G:
“
The
test of whether a suspicion is reasonably entertained within the
meaning of
s40(1)(b)
of the
Criminal Procedure Act 51 of 1977
is
objective.
”
[19]
In
Nxomani
v Minister of Police
[6]
it
was held that:
“
reasonable
grounds are interpreted objectively and must be of such a nature that
a reasonable person would have had a suspicion.
The arrester’s
grounds must be reasonable from an objective point of view. When the
peace officer has an initial suspicion,
steps have to be taken to
have it confirmed in order to make it a “reasonable”
suspicion before the peace officer arrests.”
[20]
Moreover, the quality and source of the Arresting Officer’s
information is to be considered critically.
[7]
[21]
Police officers who purport to act in terms of
s 40(1)(b)
should
investigate exculpatory explanations offered by a suspect before they
can form a reasonable suspicion for the purpose of
a lawful
arrest.
[8]
[23]
Applying the aforementioned case law to the facts, the defendant’s
conduct in my view fell
short of a reasonable police officer in the
circumstance armed with the information he had at the time. I say so
for the following
reasons:
It
is undisputed that Khene did not have any evidence under oath linking
the plaintiffs to the crime. At the time he only had the
oral
confession by Jerry. The statement of Jerry was only reduced in
writing the following day. He knew, or at least had to know,
that
armed with only the confession by Jerry without having it in writing
under oath, he could not present a
prima facie
case in a court
of law against the plaintiffs, as such information would not only
amount to hearsy evidence, but it would also
be inadmissible unless
such person testifies. He did not conduct any further investigation
after the oral information of Jerry.
No evidence was presented by
Khene that there was an urgency to have the plaintiffs arrested
immediately. Nothing would have prevented
him from first having a
proper conversation with the plaintiffs and, after having heard their
versions denying any involvement
in the crime, keeping the arrests
back. The information could then be further investigated and arrests
effected later. Ms Wright,
appearing on behalf of the defendant,
submitted that Khene did not “simply rush to the plaintiffs to
arrest them”,
but “
merely wanted to interview them”
.
This submission cannot be sustained. Khene could not remember whether
he had spoken to the plaintiffs at the smallholding or not.
This ties
in with the plaintiffs’ evidence that they were provided with
very scant information on the reason for their arrest.
I agree with
the submission of Mr Zietsman, representing the plaintiffs, that a
proper interview would at least have had the potential
to dissipate
the suspicion held by Khene. Had Khene properly conducted an
interview with the plaintiffs, one would have expected
him to not
only have a clear recollection of such interviews, but also recorded
it in writing. The end results were that the state
prosecutor elected
not to proceed and charges against the plaintiffs were withdrawn on
18 February 2016. I am of the considered
view that Khene was not at
liberty to have arrested the plaintiffs under these circumstances and
accordingly the arrests were unlawful.
[24]
I am therefore satisfied that the plaintiffs should be compensated
for their unlawful arrests.
[25]
The finding as aforementioned that the arrests by the defendant was
unlawful however does not
automatically lead to the inference that
the detention of the plaintiffs was also unlawful. In
MR
v Minister of Safety and Security
[9]
it was held at para [39] that “
arrest
and detention are separate legal processes, despite the fact that
damages are often claimed in respect of both.
’
[10]
[26]
In respect of the detentions, the parties were
ad idem
that a
distinction be drawn between two periods of detention, to wit the
period of detention from the time of arrest up to the
first court
appearance on 3 September 2015, and detention after such appearance
until release on bail.
[27]
The liability of the defendant for detention
after
the plaintiffs’ first court appearances, should be determined
by applying the principles of legal causation as comprehensively
dealt with by the Constitutional Court in
De
Klerk v Minister of Police
.
[11]
[28]
It was also held in
De
Klerk
supra
[12]
that, once the plaintiffs were brought before a court for their first
appearance, the authority of the SAPS to detain, inherent
in the
power of arrest, was exhausted.
[29]
In
Mahlangu
v Minister of Police
[13]
the Supreme Court of Appeal held (at [41]) as follows:
“
Public-policy
considerations … limit liability for the continued judicial
detention to the stage where it could reasonably
be expected of the
plaintiffs to have pursued the bail application to finality.”
[30]
It was submitted by Ms Wright, appearing for the defendant, that the
plaintiffs did not plead,
nor did they so testify, that the SAPS had
committed any wrong in regard to their first appearances in the
magistrate court or
thereafter. In fact, it was alleged in the
particulars of claim that the “
public prosecutor’s
failure to comply with his/her/their legal duty resulted in the
further detention.”
The plaintiffs moreover, so the
argument goes, did not allege any omission by the arresting officer
to prevent the plaintiffs’
further detention after their first
appearance which resulted in wrongfulness.
[31]
It is common cause that the plaintiffs appeared in court within 48
hours of their arrests for
attempted murder, a schedule 5 offence.
Accordingly, a formal bail application was necessitated in terms of
s
60(11)(b)
of the CPA. A postponement was requested in terms of
s
50(6)(d)
and the decision to remand the matter to 8 September 2015
was ostensibly that of the presiding magistrate at the time. From the
evidence before court it is clear that the SAPS did not oppose bail
(as evidenced by notes made in the investigating diary).
[32]
In view of the aforementioned I conclude that the defendant cannot be
held liable for damages
flowing from the plaintiffs’ first
court appearance on 3 September 2015 to 8 September 2015. I do not
see any reason for
not applying the same principles of legal
causation enunciated by the court in
De Klerk
supra
for
the determination of liability of the defendant for detention from
the date of plaintiffs’ arrest on 1 September 2015
to their
first court appearances on 3 September 2015.
[33]
In reaching the conclusion as I did that the
arrest of the plaintiffs was unlawful, I considered all of
the
factors as indicated in para [23] for a determination of the
reasonableness of the suspicion held by Khene. The question
thus is whether there is a casual link between the unlawful arrests
and the detention of the plaintiffs that followed as a result
of the
determined unlawful arrest. In my view such casualty is evident as,
had it not been for the unlawful arrests, the plaintiffs
would not
have been deprived of their right to freedom for the time from their
arrest until they appeared before the magistrate.
In
De Klerk
supra
the court held that that the authority of the SAPS to
detain was inherent in the power of arrest. Therefore, if such power
flows
from an unlawful arrest, the authority of the SAPS to detain
would in my view also be unlawful. Put differently, the unlawful
arrest
of the plaintiffs resulted therein that the plaintiffs were
unlawfully be detained causing them to suffer damages. Accordingly,
I
am of the view that the plaintiffs should be compensated for the
unlawful detention by the defendant, but only in respect of
the
period of detention from 1 September to 3 September 2015.
[34]
The plaintiffs initially instituted action,
amongst other, against the defendant for defamation and against
the
National Director of Public Prosecution for malicious prosecution.
The claim of defamation was withdrawn and the plaintiffs
abandoned
the claim for malicious prosecution. Under the heading “unlawful
detention” the plaintiffs claimed that they
suffered damages in
the amount of R 500 000-00 for unlawful arrest and detention,
unlawful prosecution and
contumelia
. Under a separate heading
“Loss of enjoyment and amenities of life”, the plaintiffs
claimed to have suffered general
damages in the amount of R
500 000-00 as a result of “temporary loss of the enjoyment
of the amenities of life in that
a loss of self-respect, humiliation,
degradation, loss of dignity and an unusual and cruel punishment
post-traumatic stress disorder.”
[35]
As stated, the plaintiffs did not persist in prosecuting the claim
for unlawful prosecution and
accordingly any reference thereto in the
determination of the award of damages, should be disregarded.
Moreover, in assessing general
damages no evidence was tendered by
either plaintiff in relation to the alleged post-traumatic stress
disorder. Although I have
sympathy with the plaintiffs for the ordeal
they went through, this court is not at liberty to “teach a
lesson” to
the defendant as requested by the first plaintiff.
Mr Zietsman supplied me with case law in respect of damages awarded
by our courts
in respect of unlawful arrest and detention to serve as
a helpful guide in making an award. I was however unable to find any
of
the case law referred to on all fours with the matter before me.
The correct approach to be followed to have regards to all the
facts
of a particular case and to determine the quantum of damages thereon
as was held in
Rudolph
and Others v Minister of Safety and Security and Another
.
[14]
[36]
Charmaine testified that she was humiliated by the
experience, and focused mainly on the fact that the media
attention
had dire consequences for them. Charndrei stated that she was
separated from her mother and felt alone, she could not
eat and was
scared, moreover the blanket and mattress provided to her was dirty
and the toilet was in a deplorable condition. In
their pleadings the
plaintiffs, in claiming defamation, stated that the negative media
reporting on them caused them to be ashamed
and isolated them from
being in the public eye. It was conceded that their relocation to
George, was not necessitated by their
wrongful arrest, but rather by
the media hype that started with the attack. A determination for
damages for
injuria
,
especially as the kind of
injuria
in matters like these, cannot be determined with mathematical
precision. I harbour great sympathy for the plaintiffs for the
emotional
trauma that they had to endure. Both plaintiffs were
visibly upset when they testified on the conditions in their holding
cells.
It cannot be gainsaid that this negative experience caused
emotional hardship to the plaintiffs. Although I have sympathy with
the plaintiffs for the ordeal they went through, this court is not at
liberty to “teach a lesson” to the defendant as
requested
by the first plaintiff. Damages are not to punish the defendant, but
are awarded to “
deter
and prevent future infringements of fundamental rights by organs of
state. They are a gesture of goodwill to the aggrieved…
”
[15]
Taking into account the living conditions in custody, the period of 2
days spent in custody and relevant previous rewards, I am
of the view
that R 75 000-00 would constitute a fair and appropriate
compensation to each of the plaintiffs.
[37]
Both plaintiffs claim payment in the amount of R 50 000-00 in
respect of legal assistance
upon their arrest. Not only did first
plaintiff not testify to having paid any amount in this regard, but
second plaintiff testified
that she (second plaintiff) was assisted
by family members in paying their legal team and she only paid an
amount of R 10 000-00.
No proof was provided for such payment
and accordingly the second plaintiff’s reduced claim cannot
succeed.
[38]
From the pleadings under case number 1340/2018 the first plaintiff
claimed to have suffered a
loss of income in the amount of R
250 000-00. It was common cause that the first plaintiff was not
earning any income at the
time of her arrest. It follows that the
aforementioned claim cannot succeed.
[39]
I am indebted to counsel for both the plaintiffs and defendant for
their able heads which assisted
me greatly. There is no reason why
costs should not follow the result. Mr Zietsman, appearing for the
plaintiffs, pressed on me
to award costs on a High Court scale and
also to include the reasonable travelling and accommodation costs for
attending the trial,
in respect of counsel and the plaintiffs. The
plaintiffs had to travel from George to Bloemfontein to attend the
trial. They should
not be out of pocket for having done so. I am
however of the view that counsel’s cost should best be left in
the discretion
of the Taxing Master.
[40]
Wherefore both first and second plaintiffs’ claims succeed as
follows:
1.
The defendant is ordered to pay an
amount of R 75 000-00 (seventy-five-thousand-rand) to the first
and second plaintiff respectively
for unlawful arrest and detention.
2.
Such payment to be effected before or on
5 January 2023.
3.
Should payment not be effected in
respect of orders 1 and 2 before or on 15 January 2023 the
aforementioned amount will bear interest
at the rate a
tempore
morae
calculated from date of this
order.
4.
The defendant is ordered to pay the
taxed party and party costs on a High Court scale, such costs to
include the reasonable expenses
of the plaintiffs in attending to
trial.
C
REINDERS, ADJP
On
behalf of the applicant:
Adv
C Zietsman
Instructed
by: Rosendorff
Reitz Barry
BLOEMFONTEIN
On
behalf of the respondent: Adv
G Wright
Instructed
by: State
Attorneys
BLOEMFONTEIN
[1]
1986 (2) SA 805
(A)
[2]
2008 (4) SA 458 (CC)
[3]
1986 (3) SA 568
(A) Rabie CJ held
[4]
1962 (3) SA 225
(W) at 229G-230A
[5]
1988 (2) SA 654
(SE) at 656B-D)
[6]
(123/2017) [2020] ZAECBHC 27 (13 October 2020) at [109]
[7]
De
Klerk v Minister of Police
where Shongwe ADP (Majiedt JA and Hughes AJA concurring) found at
paragraph 11
[8]
Louw &
Another v Minister of Safety and Security & Others
2006 (2) SACR 178
(T) 183J – 184D and
Sibugashe
v Minister of Police & Another
(unreported, ECB case no 527/2011, 22 October 2015) at [57]
[9]
2016 (2) SACR 540 (CC)
[10]
See also
Lombo
v African National Congress
2002 (5) SA 668
(SCA) at [26]
[11]
2020 (1) SACR 1
(CC) at [63]
[12]
at para [60]
[13]
2020 (2) SACR 136
(SCA)
[14]
(380/2008)
[2009] ZASCA 39
at paras [26]- [29]
[15]
Mahlangu
and Another v Minister of Police
2021 (2) SACR 595
(CC) at para [50]