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[2022] ZAECMKHC 88
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Minister of Police v Dunjana and Others (CA 117/2021) [2022] ZAECMKHC 88; [2023] 1 All SA 180 (ECG); 2023 (2) SACR 486 (ECM) (25 October 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION, MAKHANDA
REPORTABLE
Case
no: CA 117/2021
In
the matter between:
THE
MINISTER OF POLICE
Appellant
AND
LUVUYO
FUNDILE DUNJANA
First Respondent
SAMKELISIWE
MZAMO HOPA
Second Respondent
CHUMA
FUYISIZWE
KOSANA
Third Respondent
SINEKAYA
MCOPELA
Fourth Respondent
LUYANDA
NZO
Fifth Respondent
SINETHEMBA
PAYI
Sixth Respondent
MELIKHAYA
TANCA
Seventh Respondent
Coram:
van Zyl DJP; Govindjee J and Ah Shene AJ.
Heard:
16 May 2022
Delivered:
25 October 2022
FULL
COURT APPEAL JUDGMENT
D
VAN ZYL DJP:
[1]
This is an appeal by the Minister of Police against a judgment of
Tshiki J (the Court)
in the Gqeberha High Court ordering the Minister
to pay the sum of R500 000-00 as compensation to each of the seven
respondents.
The order was made pursuant to an action arising from
what the Court found was the unlawful arrest, detention and assault
of the
respondents by police officers employed by the South African
Police Services.
[2]
The Minister requested, and was given leave by the trial court to
appeal the whole
of its judgment. At the hearing of the appeal, the
issues were confined to the correctness or otherwise of the finding
of the trial
court that: The Minister had failed to prove that the
arresting officer entertained a reasonable suspicion that the
respondents
had committed the crime of robbery; the second and fourth
respondents were assaulted by members of the Police Services; and the
quantum of the compensation awarded to the respondents in respect of
both claims, was justified in the circumstances of the matter.
[3]
What has become a not too uncommon occurrence took place on 15 June
2013 when a supermarket
in Beetlestone Road in Gelvandale, a suburb
of Gqeberha, was robbed of cash monies by eight persons armed with
firearms. The robbers,
who had covered their faces to mask their
identities, fled the scene in a white Nissan pickup truck. A warrant
officer Botha, who
is a member of the police reactionary unit, was on
patrol duty with two fellow police officers in the area at the time.
In response
to being notified of the robbery on the police radio, he
proceeded to patrol the area in the vicinity of the supermarket. In
Botha’s
experience, the perpetrators of a robbery would
exchange motor vehicles after they had fled the scene of the robbery,
leaving behind
the get-away vehicle. He accordingly did not proceed
to the scene of the robbery, a task which he left to the uniform
branch of
the police, but kept a lookout for an abandoned motor
vehicle.
[4]
According to Botha, a street block or two away from the supermarket
he found a vehicle
that raised his suspicion by the manner in which
it was parked. He radioed the registration number of the vehicle to
the police
control centre. He was told that the vehicle had been
reported as stolen, and that the vehicle matched the description of
the vehicle
that was used in the robbery at the supermarket. While at
the scene, Botha said he was approached by a member of the public who
wanted to remain anonymous. The individual told him that the persons
who had fled the scene of the robbery in the pickup truck
to the
place where Botha found it, alighted therefrom, and left in a silver
Volkswagen motor vehicle. The person was able to only
provide him
with the alphabetical letters of the registration details of the
vehicle.
[5]
Making use of a social media application on his cellular phone, Botha
said that he
asked his informers to be on the lookout for a motor
vehicle that matched the description given to him. In the early
evening of
the same day Botha was told by an informer that two motor
vehicles, of which one was a silver Volkswagen Polo motor vehicle
with
matching registration letters, were parked at an address in
Ngalo Street, New Brighton in Gqeberha. Botha thought it necessary to
request assistance from what was referred to as a tactical response
unit, whose members accompanied him to Ngalo Street in their
own
vehicle.
[6]
On their arrival at the address they found five persons sitting in
two vehicles parked
inside the property. Both vehicles were
Volkswagen Polos, the one silver and the other red in colour. The
occupants got out of
the vehicles and ran away. They were however all
caught and searched. Nothing was found on them. Two persons were also
found inside
the house. Similarly, nothing incriminating was found on
them. A search of the two vehicles and the house yielded alcohol and
items
of clothing that included a black leather jacket found in the
red vehicle. The explanation offered by the respondents for their
presence at the house was that they were celebrating the birthday of
one of them. Botha spoke to a Captain Dippenaar, first telephonically
and later on Dippenaar’s arrival at the house in Ngalo Street
with regard to the clothing that he had found. Dippenaar, who
viewed
the close circuit television footage of the commission of the
robbery, informed Botha that the clothing worn by the participants
in
the robbery looked like the clothing found by Botha at Ngalo Street.
Botha thereupon arrested the respondents, having formed
what he said
was a reasonable suspicion that the respondents committed the robbery
at the supermarket in Gelvandale.
[7]
Dippenaar’s evidence was that he attended the scene of the
robbery and viewed
the video footage recorded by cameras inside the
supermarket. There were seven or eight robbers who were all armed
with firearms
and with their faces covered by balaclavas. Several
policemen, including the witness Botha, came to the scene to inform
him of
information received by them about possible suspects. He later
went to Ngalo Street at the request of a Colonel Humphreys. There
he
found seven persons who were tied up and were lying on the ground. He
saw what he thought were Volkswagen Golf motor vehicles
parked
outside the property. The clothing worn by the persons lying outside
seemed similar in appearance to the clothing worn by
the robbers in
the video footage. In one of the motor vehicles he was shown a black
leather jacket that resembled a jacket worn
by one of the robbers.
Inside the house there was a branded hat, what Dippenaar described as
a “
hoodie”
or a “
beanie”
type
of balaclava, including two laptop computers with pictures of
firearms stored thereon.
[8]
The next day the investigation of the robbery at the supermarket was
assigned to a
Warrant Officer Erasmus. Erasmus testified that he
compiled a photo album consisting of photos taken of the respondents
in the
clothing which they were wearing when they were arrested by
Botha the previous day. The photos were shown to witnesses to the
robbery.
According to Erasmus none of them were able to identify any
of the respondents by their clothing. He thereupon released the
respondents
from custody. He continued investigating the matter. The
respondents were not arrested again, nor were they ever charged with
having
committed the robbery at the supermarket.
[9]
The arrest of the respondents was without a warrant. The expectation
is that the law
relating to a warrantless arrest under our
constitutional dispensation must by now be certain, particularly
following the judgment
of the Supreme Court of Appeal in
Minister
of Safety and Security v Sekhoto
(
Sekhoto
)
[1]
,
a judgment that may rightly be considered to be the
locus
classicus
with regard to the principles which find application to a claim for
unlawful arrest and detention. There has however, of late,
been a
marked increase in the number of cases serving before the different
courts in this division that involve claims for compensation
arising
from the arrest of persons without a warrant, particularly in terms
of section 40(1)(b) of the Criminal Procedure Act 51
of 1977 (the
Act). While there may be other reasons for this, it is apparent from
the case law relied upon during argument that
diverse outcomes have
created fertile ground for litigants to choose from a number of
available legal arguments that may be used
in an attempt to pursue a
favourable outcome. This, what is an unravelling of the construction
given to the legislative intent
in the section in Sekhoto, engenders
legal uncertainty, and “
The
power of the lawyer”
wrote Jeremy Bentham, “
is
in the uncertainty of the law”
(The Works of Jeremy Bentham, Now First Collected at page 429).
[10]
As a point of departure, section 12(1) of the Bill of Rights of the
Constitution provides for
the right of every person not to be
deprived arbitrarily or without just cause of his or her freedom.
This conforms with the Universal
Declaration on Human Rights and the
International Covenant on Civil and Political Rights that guarantees
the right not to be subjected
to arbitrary arrest or detention except
on such grounds in accordance with such procedures as are established
by law. Officials
with the power to arrest are constrained, like any
other public functionary, by the principle of legality imposed by the
Constitution,
and may not exercise any power or perform any function
beyond that conferred upon them by the law, or exercise such power
arbitrarily
or without just cause.
[2]
[11]
The arrest of a person without a warrant is authorised by law in
section 40 of the Act. The section
has passed constitutional
muster.
[3]
It sets the
conditions for the arrest of a person without a warrant in what are a
number of differing circumstances. In the factual
context of the
present matter, the arrest was effected in the circumstances
contemplated in subsection (1) (b). In terms thereof,
a peace officer
may arrest any person without a warrant of arrest “
whom
he reasonably suspects of having committed an offence referred to in
Schedule 1, other than the offence of escaping from lawful
custody.”
[12]
On a reading of the section it raises two separate and distinct
issues, each with its own onus
of proof. The first issue deals with
the power or authority of the peace officer to arrest a person
without a warrant. The existence
of the power to effect such an
arrest is subject to proof of four jurisdictional facts, namely that:
(a) the arrestor was a peace
officer; (b) he entertained a suspicion;
(c) the suspicion was that an offence referred in Schedule 1 of the
Act had been committed;
and (d) the suspicion was based on reasonable
grounds.
[4]
[13]
The second issue deals with the exercise of the power to effect a
warrantless arrest, and is
not to be conflated with the
jurisdictional facts for the coming into existence of the power to
effect an arrest without a warrant.
[5]
It only arises once it is found that the four jurisdictional facts
are present for the existence of the power to arrest. It is
accordingly premised on a finding that the arrestor was possessed of
the power to effect a warrantless arrest. In
Sekhoto
,
Harms DP referred with approval to the pronouncements of Hefer JA in
Minister
of Law and Order v Dempsey
[6]
with regard to the drawing of a distinction between jurisdictional
facts for the existence of a power, and the improper exercise
of that
power once found to exist. This, Hefer JA said, means that there are
two separate and distinct issues, each having its
own onus.
[7]
[14]
In the context of section 40(1)(b), the focus of the exercise of the
power to arrest is on the
discretionary nature of that power. The
section provides that a peace officer “
may”
without
a warrant arrest any person. They are accordingly not obliged to
exercise their powers of arrest. “
It
is permissive, and not peremptory or mandatory.”
[8]
Not
unlike any other exercise of a discretionary public power, the
traditional common law grounds of review and the objective
rationality
ground required by the Bill of Rights are used to test
the legality of the exercise of the discretion to arrest.
[9]
However, unlike in the case of the existence of the power to arrest,
where the onus of proof is on the person who contends to have
been
possessed that power, the onus is on the party who contends that the
power was improperly exercised, to prove it. “
The
general rule is also that a party who attacks the exercise of
discretion, where the jurisdictional facts are present, bears
the
onus of proof.”
[10]
[15]
The effect of the location of the onus is that the issue of the
improper exercise of the arresting
officer’s discretion will
only arise when it has been pertinently pleaded. “
The
onus can arise only after the issue itself has arisen.”
[11]
As
stated by Harms DP in his judgment in
Sekhoto
,
the principle of litigation fairness demands not only that the
ground(s) on which it is contended there had been an improper
exercise of a discretion must be pleaded, but the specific facts on
which those grounds are based must be stated, “
It
cannot be expected of a defendant … to deal effectively, in a
plea or in evidence, with unsubstantiated averments of
mala
fides
and the like, without the specific facts on which they are based
being stated.”
[12]
This is in keeping with the purpose of pleadings which is to
“
ascertain
definitively what is the question at issue between the parties; and
this object can only be obtained when each party states
his case with
precision.”
[13]
It follows that the issue of an improper exercise of the arresting
officer’s discretion cannot be raised for the first time
on
appeal as the respondents attempted to do in argument in this matter.
[16]
It was not in dispute in the present matter that the arresting
officer was a peace officer as
defined in the Act, and that he formed
a suspicion that the respondents had committed the offence of
robbery, which is an offence
referred to in Schedule 1 of the Act.
The first issue to be decided in the appeal was accordingly confined
to the question of whether
the suspicion formed by the arresting
officer, that the respondents had committed the offence in question,
was a reasonable suspicion.
The test for whether a suspicion is
reasonably entertained within the meaning of section 40(1)(b) is
objective.
[14]
The enquiry is
whether a reasonable person in the position of the arresting officer,
and possessed of the same information, would
have considered that
there were grounds for suspecting that the arrestee committed the
Schedule 1 offence in question. It is not
whether the police officer
believes that he has a reason to form a suspicion, but whether
objectively he had formed a suspicion
that is reasonable.
[15]
The requirement that the arresting officer must have a suspicion, as
opposed to probable cause, implies an absence of certainty
or
adequate proof. “
The
standard of a reasonable suspicion is very low. The reasonable
suspicion must be more than a hunch; it should not be an
unparticularised
suspicion. It must be based on specific and
articulable facts or information. Whether the suspicion was
reasonable, under the prevailing
circumstances, is determined
objectively”.
[16]
The facts or information possessed by the arresting officer must not
be equated with evidence that will be admissible in court.
“
It
must at the outset be emphasised that the suspicion need not be based
on information that would subsequently be admissible in
a court of
law.”
[17]
It is an important distinction that must be kept in mind when the
facts and information possessed by the arresting officer is evaluated
against the standard of reasonableness.
[18]
[17]
A suspicion would be reasonable even in the absence of sufficient
evidence to support a
prima
facie
case against the arrestee.
[19]
Accordingly, at the point of a reasonable suspicion, it appears that
a crime may have been committed, as opposed to the situation
where
probable cause exists, that is, when the likelihood is raised that a
crime had been committed. A suspicion, by definition,
means the
absence of certainty. As it was explained in
Minister
of Law and Order v Kader
,
[20]
it “
is
a state of conjecture or surmise where proof is lacking …
Suspicion arises at or near the starting point of an investigation
of
which the obtaining of
prima
facie
proof is the end.”
[21]
[18]
With this distinction in mind, the test for a reasonable suspicion
requires an objective assessment
of the information the arresting
officer says, and is found on the probabilities, to have been
possessed by him at the time of
the arrest. The test is however not
applied in a vacuum. It is subject to the facts and the context. In
its application, as in
so many other areas of the law, context is
everything. Accordingly, this assessment must be made, as correctly
pointed out in
Minister
of Safety and Security v Van Niekerk
,
[22]
with due regard to the factual context of each case
.
“It would not be desirable for this court to attempt a blanket
all purpose test for constitutionally acceptable arrest …
the
lawfulness of an arrest will be closely connected to the facts of the
situation.”
[23]
By reason of its very nature, the enquiry must be fact specific, that
is, each case must be assessed in the context of its own
facts and
circumstances.
[24]
That
factual context will be provided by matters such as the nature of the
crime, the elements thereof, the source and the nature
of the
information on which the suspicion is said to be based, and its
significance in supporting the suspicion entertained by
the arresting
officer. By way of an illustration, in
Mabona
and Another v Minister of Law and Order (Mabona)
,
[25]
the reasonableness of the suspicion of the arresting officer was
determined in the context of the fact that the source of the
information, on which the officer based his suspicion, was an
anonymous informer. That fact, it was found, would cause a reasonable
police officer to be mindful of the cautionary considerations that
would usually find application to the evidence of such a witness
in
his assessment of that information.
[26]
There is clearly no room for a general rule that must be applied
dogmatically. What may be sufficient in one instance to raise
a
suspicion that is reasonable, may be found to be insufficient in
another instance. It is, as a result, simply wrong to attempt
to
formulate what may be wrongly perceived as hard and fast rules for
applying the test for the existence or otherwise of a suspicion
that
is reasonable.
[19]
A recent example of a misconception regarding the application of the
test for a reasonable suspicion,
that has managed to take hold, is
the proposition, framed as if it is a rule of general application,
that it is “
trite
that police officers purporting to act in terms of Section 40 (1)(b)
of the Act should investigate exculpatory explanations
offered by a
suspect before they can form a reasonable suspicion for the purpose
of lawful arrest.”
[27]
It
manifested itself in this matter in the submission that Botha could
not objectively have formed a suspicion that it was the respondents
who committed the robbery without him first having made an attempt to
determine the veracity of their alibi. This is a most unhelpful
proposition. I say this for the following reasons: Firstly, it
negates the fact that the application of the test for a reasonable
suspicion is fact specific. As stated by the Constitutional Court in
MR
v Minister of Safety and Security
,
[28]
in the context of the exercise of the discretion as envisaged in
section 40(1)(b), which is similarly an enquiry that is fact
specific, “
it
is neither prudent nor practical to try to lay down a general rule.”
To hold otherwise may have unintended consequences and place too
onerous a duty on a police officers that may, as stated in
MR
v Minister of Safety and Security
,
[29]
prove to obstruct them in the exercise of their powers pursuant to
their constitutional duty to combat crime.
[20]
As the test for a reasonable suspicion is fact specific, and must
consequently be applied in
the context of the facts and the
circumstances of each case, the quality of the information at the
disposal of a police officer
may in a particular case be so tenuous
or conflicting that it cannot objectively sustain a suspicion as
envisaged in section 40(1)(b)
without the police officer first having
made further enquiries before he affected an arrest. However, the
fact is that the resultant
finding that the police officer could not
reasonably have formed a suspicion as required, is because the
information at his disposal
was insufficient to sustain such a
suspicion, and not because he had failed to investigate the
information given to him by the
arrestee. To hold otherwise would be
to conflate the requirement that the suspicion must be a reasonable
one, with the legal standard
which is applied to determine fault in
delictual claims, where it is the action or inaction of the defendant
that is tested against
that of the reasonable man. The statement that
a “
peace
officer who fails to substantiate his suspicion when he is able to do
so or has the opportunity to do so, does not act reasonably,”
[30]
has accordingly no place in the context of the enquiry envisaged in
section 40(1)(b).
[21]
The question is simply whether a reasonable person, confronted with
the same information possessed
by the arresting officer at the time
of the arrest, which would include the exculpatory statement of the
arrestee, could form a
suspicion that the suspect had committed an
offence as envisaged in Schedule 1. In
Mawu
v Minister of Police
[31]
the court rejected the proposition in
Mbotya
v Minister of Police
[32]
that the arresting officer’s failure to verify information on
which he acted rendered the arrest unlawful. As correctly state
by
Zondi J, there is nothing in the provisions in section 40(1)(b) which
leads to a conclusion that it is a requirement for a reasonable
suspicion to be formed that “
the
quality of the information upon which the arrestor acts must be
analysed and assessed and that acting on the information, the
quality
of which has not been subjected to scrutiny will render an arrest
unlawful”,
[33]
and
that the decision in
Mabona
certainly does not provide authority for such a proposition. The
reason, the court said, lies in the fact that a lawful arrest
in
terms of section 40(1)(b) is made upon a suspicion that must be
reasonable, and not on facts which can be proved in court. To
this
may be added that the focus of the enquiry is the information at the
disposal of the arresting officer, which information
is to be
measured against the standard of reasonableness, as opposed to the
reasonableness of the conduct of the police officer
concerned.
[22]
Secondly, the decision which is being relied upon for the
proposition, is not authority for it.
Reliance is usually placed on
the judgment in
Louw
and Another v Minister of Safety and Security and Others
(
Louw
),
[34]
a judgment which the Supreme Court of Appeal in
Sekhoto
had found to introduce an approach contrary to the meaning of section
40(1)(b). In the passage in
Louw
,
relied on for the proposition, the court said the following about the
actions of the arresting officer. “
The
fact that De Beer and his colleagues acted with malice is further
evidenced by his failure to acquaint himself with the content
of Mr
Badenhorst’s statement, which records no accusation of theft at
all. His failure to investigate the plaintiff’s
explanation, or
to contact Mr Wessels, was a clear dereliction of duty. He was
obliged to pay as much attention to the suspects’
statements
prior to arrest as he was to consider the Badenhorsts’ story.
In this case he did neither. Had he stopped to consider
what the
Badenhorsts told him, he would have known that there was no
prima
facie
case
of the commission of a crime contained in the First Schedule. Had he
listened to the plaintiff’s version and had he been
as
concerned about the rights of the plaintiffs, the suspects, as he had
been about those of the complainants, he would have realised
that no
crime had been committed, let alone one warranting an arrest.”
“The wrongfulness of the police action is further
evident from
the way in which the docket was completed after the arrest. From its
cover, and from the second plaintiff’s
evidence, it is quite
clear that Van Niekerk and De Beer were uncertain what the plaintiffs
ought to be charged with once plaintiffs
had been taken to the police
station. Eventually, they decided that the theft of the fax machine
should be regarded as the principal
charge.”
[35]
[23]
This passage was relied upon in
Liebenberg
v Minister of Safety and Security
(Liebenberg)
[36]
in support of
the notion that “
Police
officers who purport to act in terms of subsection 40(1)(b) shall
investigate exculpating (sic) explanations offered by a
suspect
before they can from a reasonable suspicion for the purposes of a
lawful arrest.”
[37]
On
a reading of the judgments referred to in paragraph [13] above, it is
evident that the
Louw
and
Liebenberg
judgments are the source of what has subsequently been said to be
“
trite”,
namely
that there is a duty on an arresting officer to verify exculpatory
statements before he can form a reasonable suspicion as
envisaged in
the section.
[24]
What was said in
Louw
cannot be elevated to a hard and fast rule that the failure to first
investigate an exculpatory statement proffered by a suspect
would
render the arrest in terms of section 40(1)(b) unlawful. That is not
what the court in
Louw
said, or what was intended to be conveyed. That this is so, is
evident from a reading of the aforementioned passage in
Louw
on which reliance is placed as authority for the stated proposition.
It is presumably based on the statement in the passage in
Louw
that the failure of the arresting officer to investigate the
plaintiff’s explanation, was a dereliction of duty. However,
this statement was not made in the context of determining the
reasonableness of a suspicion held by the arresting officer, but
rather in the context of the court’s finding that the arresting
officer acted with malice, and that the arrest was made for
an
ulterior purpose, namely to punish him. That purpose, Harms DP in
Sekhoto
[38]
pointed out, was unlawful, as the arrestor invoked the power for a
purpose not contemplated by the legislature, which is to bring
the
suspect before a court to stand trial.
[39]
[25]
Lastly, as correctly found by the court in
Noemdoe
v The Minister of Police
,
[40]
the statement in Liebenberg cannot be correct, because “
To
hold otherwise would be tantamount to creating an additional
jurisdictional fact justifying an arrest in terms of Section 40(1)(b)
of the Act.”
In
Sekhoto
Harms DP, dealing with the finding in
Louw
that the police are obliged to consider in each case whether there
are no less invasive options to bring a suspect before the court
other than arrest, definitively found that there is nothing “
in
the provision which leads to the conclusion that there is, somewhere
in the words a hidden fifth jurisdictional fact.”
The judgment in
Louw
is therefore not authority for the proposition that a police officer
should investigate exculpatory explanations offered by a suspect
before he can form a reasonable suspicion for the purpose of a lawful
arrest, or for the proposition that flows therefrom, namely
that a
police officer has a duty to prove or disprove the truth of what has
been conveyed to him by a suspect before he can execute
a warrantless
arrest in terms of section 40(1)(b) as was contended in argument, and
correctly rejected in
Minister
of Police v Soetwater and Others
.
[41]
[26]
Turning to the facts of the present matter, the first question is
then whether Botha could reasonably
have entertained the suspicion,
which he said he did, when he arrested the respondents. This question
is of course premised on
an acceptance that Botha was as a fact
possessed of the information which he said he had at the time. On a
reading of the trial
court’s reasons for its judgment, it is
evident that it was also not convinced of the credibility, and as a
consequence the
reliability, of Botha’s evidence with regard to
what the information was he said he possessed. To this extent, the
court
pertinently found in its assessment of the evidence that
Botha’s testimony was contradicted in material respects by that
of Dippenaar. Considering the fact that the trial court was in the
advantageous position to assess the credibility of the witnesses
owing to its extensive exposure to the evidence and the benefit of
hearing the testimony
viva
voce
,
this finding must be approached with the necessary deference.
[42]
[27]
Credibility involves an assessment of the trustworthiness of a
witness’ testimony based
on the veracity of the witness and the
accuracy of the evidence that the witness provides. This assessment
of the evidence would
involve an examination of the various factors
including, but not limited to whether the witness’s evidence
harmonizes with
that of other witnesses on the same aspects. On a
reading of the appeal record the court’s criticism of the
evidence of Botha
does not appear to be unjustified or made in error.
Material contradictions in the evidence of Botha and Dippenaar that
are relevant
to an assessment of Botha’s credibility and
ultimately the reliability of his evidence with regard to the
incriminating information
he said he was possessed of, relates to
whether: Botha went to the actual scene of the robbery at the
supermarket where he, according
to Dippenaar, spoke to him and he
gave Dippenaar information regarding possible suspects; the model of
the Volkswagen vehicles
found at Ngalo Street was a Golf or a Polo;
not only the items of clothing found in one of the vehicles and
inside the house was
similar to that which Dippenaar said was worn by
the perpetrators of the robbery, but also the clothing worn by the
suspects which
Dippenaar said he found lying on the ground on his
arrival at Ngalo Street; a hat was found inside the house which had a
branded
logo that corresponded with a logo seen by Dippenaar in the
video footage on a balaclava worn by a perpetrator, and lastly, two
laptop computers were found inside the house with what Dippenaar
clearly thought was incriminating evidence stored thereon. These
discrepancies in the evidence of the two police officers are material
in the context of the issues raised in the matter. They are
all
relevant to the information the arresting officer said he had at his
disposal at the time, and whether it was sufficient to
establish a
suspicion that is reasonable as required by section 40(1)(b).
[28]
The trial court proceeded to find that Botha, on an objective
approach, did not have reasonable
grounds for his suspicion that the
respondents had committed the robbery earlier that day at the
supermarket in Gelvandale. The
question that must be answered is
whether a reasonable person in the position of Botha could have
considered that there were good
and sufficient grounds for suspecting
that the respondent participated in the robbery. As stated, an
assessment of the information
possessed by the arresting officer
against the standard of reasonableness takes place
inter
alia
in the context of the nature and the elements of the crime in
question, the source and the nature of the information, and its
importance in establishing the suspicion which is said to have
arisen.
[43]
Where, as in the
instant matter, the description of the vehicle was given to the
arresting officer by an unidentified person who
wanted to remain
anonymous, and who was not prepared to make a sworn statement, a
reasonable policeman would, as stated in
Mabona
,
be aware of the possible danger in an uncritical acceptance of the
word of a person which is nothing more than an informer.
[44]
A reasonable policeman would also have been aware that in the
circumstance of this case, the focus of any information on which
they
have to base a suspicion, must of necessity relate to the
identification of a suspect as having been one of the robbers. As
in
the case of an informer, evidence of identification is generally
approached with caution,
[45]
and is one of the many considerations which may be relevant in
evaluating
ex
post facto
whether the information possessed by the arresting officer was
objectively sufficient to sustain a suspicion that is reasonable.
However, as cautioned earlier, the information is not to be equated
with what would be evidence that is admissible at a trial.
[46]
Put differently, in applying the test for a reasonable suspicion, the
evaluation of the information is aimed at determining the
reasonableness of the grounds for the suspicion that the arrestee
committed an offence, as opposed to whether it constitutes admissible
evidence that could support a decision to charge him with an offence,
or is sufficient to secure his conviction at the trial.
[29]
With regard to the nature of the information received by Botha from
the anonymous bystander,
the information was very scant and purely
circumstantial in nature. It consisted simply of the colour and make
of a motor vehicle
with a partial registration number. It did not
provide any information relating to the model of the vehicle or the
number and the
possible identities of the persons who got into the
vehicle. The information which Botha received from Dippenaar was
similarly
nothing of a concrete nature. It goes no further than that
some of the items of clothing found at Ngalo Street appeared to be
similar
to those items which Dippenaar said he had seen the
perpetrators of the robbery wearing in the video footage. According
to Dippenaar,
the clothing worn by the suspects “
seemed to
be similar.”
This description is rather meaningless. Except
for the leather jacket, an item of clothing that could not
specifically be linked
to any of the respondents, the information
Botha got from Dippenaar provided no detail of the nature of the
clothing and its colour,
and in what way the clothing was said to be
similar to that worn by the robbers.
[30]
Botha did not immediately arrest the respondents. He did so only
after he had requested that
the person who viewed the video footage
of the robbery come to Ngalo Street. Botha himself, quite clearly did
not think that he
had sufficient information before the arrival of
Dippenaar on which to form a reasonable suspicion that the
respondents participated
in the commission of the robbery. He waited
for Dippenaar to arrive, and it was only after he had met with and
spoken to Dippenaar
that he arrested the respondents. Botha’s
own reservations about his ability to form the required suspicion in
the circumstances
was, in my view, justified. The question is
accordingly whether the information which Botha said he had
subsequently received from
Dippenaar, was sufficient to tip the scale
to him forming a suspicion that was reasonable? The tenuous nature of
the information
he said was given to him by Dippenaar, is, in my
view, insufficient to do that. The hat found inside the house, which
was the one
item of clothing Dippenaar testified “
resembled
almost exactly”
the head gear worn by the first robber that
entered the supermarket, was evidently not considered by Botha. He
made no mention of
it in his evidence. Botha, also made no mention of
Dippenaar’s evidence that the clothing worn by the suspects he
found lying
outside the house seemed to be similar to that seen by
him in the video footage. The question remains of course who the
suspects
were that wore the clothing seen by Dippenaar, and in what
way it resembled the clothing seen by him in the video footage. In
the
final analysis, the only additional information which Botha, on
his evidence, based his suspicion on, was that some of the clothing
found at the address in Ngalo Street looked similar to that observed
by another police officer in the video footage. To conclude,
having
regard to the evidence as a whole, I am not convinced that the trial
court can be said to have erred with regard to its
finding that Botha
was not a credible witness, and that he could not have entertained a
reasonable suspicion in the circumstances.
[31]
The next question is whether the trial court was correct in finding
that on the evidence placed
before it, the second and fourth
respondents discharged the onus of proving that they were assaulted
by police officers during
their arrest. At the hearing of the matter,
the appellant informally sought leave to amend his notice of appeal
so as to specify
this as a factual finding that is appealed against
on the basis that it was made without evidence, and that it was
clearly wrong.
The respondents quite correctly did not oppose the
amendment on this basis. The appellant sought leave to appeal the
whole of the
judgment, and the trial court, in granting leave, did
not limit it in any way to any specific ground(s), and it will be
unjust
to preclude interference on appeal if it is found that the
judgment and the order of the trial court is obviously wrong.
[47]
[32]
The appellant’s submission that the finding of the trial court
that the second and fourth
respondents were assaulted was wrong, is
premised on their acknowledgement in evidence that they were not
physically assaulted
by any of the police officers, but were simply
verbally abused by being sworn at. The second respondent testified
that “
I
was not manhandled. I was not assaulted but we did, we was (sic)
verbally abused, yes.”
The fourth respondent was asked in his evidence in chief whether
anything was done to him after he was told to lie down on the
ground,
to which he replied “
No,
nothing … then nothing happened to me specifically.”
The trial court did not give reasons for its finding that the
appellant is liable to compensate the two respondents for assault.
Counsel for the respondents submitted, in argument, that the second
respondent’s evidence that he was pushed, and that both
respondents were made to lie down on the ground, constituted an
assault. On a whole, the evidence is in my view insufficient to
prove
that the actions relied upon were, on the principle of
de
minimis non curat lex
,
unlawful or that the police officer(s) had the intention to interfere
with the bodily integrity of the two respondents. The actions
complained of are more consistent with that of a police officer whose
aim was to secure the detention of a suspect following his
apprehension and arrest.
[48]
There was also no evidence placed before the trial court that either
of the two respondents was caused to suffer any pain or discomfort,
whether physically, mentally or psychologically, or that they were
humiliated by the aforesaid actions of the police officer(s).
[49]
Accordingly, the finding of the trial court in relation to the second
and fourth respondent’s claim for compensation for
assault
founded on the
actio
iniuriarum,
must be set aside.
[33]
That leaves the question whether the compensation awarded by the
trial court was justified on
the facts of the matter. As stated, the
court decided to make a single award, and ordered the appellant to
pay each of the respondents
the sum of R500 000-00. The appellant’s
submission is that the amount is excessive and not supported by the
evidence.
[34]
In awarding compensation for claims based on the
actio
iniuriarum
the court necessarily exercises a wide discretion. It is trite that
where the amount of compensation is a matter of discretion,
a court
of appeal will be slow to interfere with the award of the trial
court, and cannot simply substitute its own award for that
of the
trial court. It will only interfere if the trial court has
misdirected itself, or the award is so exorbitant or inadequate
that
it compels an inference that the trial court did not properly
exercise its discretion.
[50]
[35]
The purpose of the
actio
iniuriarum
is
to afford satisfaction to the individual whose personality rights
have been infringed, and to act as a deterrent to future
infringements
from taking place. In this matter the personality
rights infringed, namely that of personal liberty and bodily
integrity, are constitutionally
protected rights that require the
making of an award that will reflect the seriousness of the
infringement. This however does not
suggest that large amounts would
always be justified, as the primary purpose of making an award for
compensation is not to enrich
the aggrieved party. This was confirmed
in
Minister
of Safety and Security v Tyula
[51]
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.”
[52]
[36]
Considerations which are relevant when making an assessment of the
amount of compensation to
award for a deprivation of the liberty of a
plaintiff would include, but is not limited to, the status; standing
and the personal
circumstances of the plaintiff; the circumstances
under which the plaintiff was deprived of his liberty; the duration
and nature
of the deprivation of liberty; the presence or absence of
malice or an improper motive on the part of the defendant; the
conduct
of the defendant; the extent of publicity given to the
deprivation of liberty; and awards made in previous comparable
cases.
[53]
Factors relevant to
the quantification of compensation for an assault based on the
actio
iniuriarum
would include the nature and seriousness of the assault; the motive
of the attacker; the publicity given to the assault; the nature
and
seriousness of the plaintiff’s injuries; and previous awards
made in comparable cases.
[54]
[37]
Whilst regard may be had to comparable cases and the awards made
therein, Nugent JA warned in
Minister
of Safety and Security v Seymour
[55]
that they are nothing more than a useful guide to what courts have
considered to be appropriate on the facts before them, “
but
they have no higher value than that.”
[56]
Previous awards are therefore not to be followed slavishly, and
should not be “
allowed
to dominate the enquiry so as to become a fetter upon the Court’s
general discretion in such matters.”
[57]
Ultimately, each case must be determined on its own facts.
[58]
[38]
The respondents were detained for a period of 35 hours. With the
exception of the second and
fourth respondents, they were assaulted
while lying down in the road outside the house in Ngalo Street over
an extended period
of time in full view of local residents and other
bystanders. They were assaulted by being kicked, trampled underfoot
and threatened
with firearms by policeman whose faces were masked to
hide their identities. The assaults were accompanied by verbal abuse
and
were perpetrated for an unlawful purpose, namely in an attempt to
force the respondents to provide the police with information
regarding the whereabouts of the firearms used and the money stolen
in the robbery at the supermarket.
[39]
The trial court correctly gave due consideration to the personal
circumstances of the respondents;
the nature and the circumstances of
the assaults; the humiliation and embarrassment suffered by them as a
consequence of the arrests
and assaults having taken place in the
presence of community members; the seriousness of the infringement of
their personal rights;
the reprehensible nature of the conduct of the
police officers; and the conditions under which the respondents were
detained in
the police cells.
[40]
The respondents were detained for a relatively short period of time.
Two more recent cases which
are comparable with regard to the period
of detention are
Brits
v Minister of Police and Another
(
Brits
)
[59]
and
Minister
of Police and Another v Erasmus
(
Erasmus
)
[60]
where the plaintiffs were released from detention the day following
their arrest. In
Brits
the plaintiff was detained for 25 hours and he was awarded R70 000-00
on appeal. In Erasmus, where the plaintiff was detained for
20 hours,
and an award of R25 000-00 was made on appeal. In
Diljan
v Minister of Police
(
Diljan
)
[61]
the plaintiff was detained for 3 days and the court on appeal
considered an award of R120 000-00 to be fair and reasonable. A
recent matter wherein a large award was made was in
Mahlangu
and Another v Minister of Police
[62]
where the Constitutional Court awarded R500 000-00 for an unlawful
arrest and a detention that lasted 8 months and 10 days. In
De
Klerk v Minister of Police
[63]
the Constitutional Court considered an award of R300 000-00 for
approximately 7 days detention to be appropriate.
[41]
An important distinguishing factor in the present matter is the fact
that the respondent’s
unlawful arrest and detention was
accompanied by assaults, the purpose of which was to extract
information from them. This conduct,
it’s duration and its
public nature, is deserving of censure that must be reflected in an
award for compensation. However,
it does not justify an award of the
extent made by the trial court, and there is clearly a striking
disparity in the amount of
the compensation that should rightly have
been awarded, and that actually awarded by the trial court. The
appeal against the
quantum
of the compensation awarded must
accordingly also succeed. In respect of those respondents who were
also assaulted, I am of the
view that it would be appropriate in the
circumstances to award a single round sum as compensation.
[42]
Lastly, turning to the issue of the costs of the appeal, it must in
my view follow the result.
The appellant was substantially successful
and the amount claimed by the respondents in the trial court was
unjustifiably inflated
and excessive. In
Diljan
the court
urged legal practitioners to “
exercise caution not to lend
credence to the incredible practice of claiming unsubstantiated and
excessive amounts in the particulars
of claim. Amounts in monetary
claims in the particulars of claim should not be ‘thumb-sucked’
without due regard to
the facts and circumstances of a particular
case. Practitioners ought to know the reasonable measure of previous
awards, which
serve as barometer in quantifying their clients’
claims even at the stage of the issue of summons. They are aware, or
ought
to be, of what can reasonably be claimed based on the
principles enunciated above
. There accordingly exists no reason
to depart from the usual rule relating to costs, and to deprive the
appellant from any of his
costs.
[43]
For these reasons, the appeal is upheld with costs, and the order of
the trial court is set aside,
and it is replaced to the following
extent:
(1)
The second and fourth plaintiffs’
claims in respect of assault are dismissed.
(2)
Judgment is granted in favour of the
second and fourth plaintiffs for the payment of R70 000-00 as against
the defendant in respect
of their unlawful arrest and detention on 15
June 2015.
(3)
Judgment is granted in favour of the
first, third, fifth, sixth and seventh plaintiffs for the payment of
R150 000-00 as against
the defendant in respect of their claims for
unlawful arrest, detention and assault on 15 June 2015.
(4)
The defendant is ordered to:
(a)
Pay interest on the aforesaid
amounts at the legal rate, calculated from the date of judgment to
date of payment, and
(b)
Pay the plaintiffs’ costs of
suit together with interest thereon at the legal rate calculated from
14 days from the date of
taxation to date of payment.”
D
VAN ZYL
DEPUTY
JUDGE PRESIDENT OF THE HIGH COURT
I
agree:
A
GOVINDJEE
JUDGE
OF THE HIGH COURT
I
agree:
L
AH SHENE
ACTING
JUDGE OF THE HIGH COURT
Appearances:
For
Appellants:
Adv G Wolmarans
Instructed
by:
Dold & Stone Attorneys
10
African Street
Makhanda
046
- 6222348
For
the Respondents: Adv A C
Moorhouse
Instructed
by:
Whitesides Attorneys
53
African Street
Makhanda
046 -
6227117
[1]
Minister
of Safety and Security v Sekhoto
2011
(5) SA 367 (SCA).
[2]
Mahlangu
and Another v Minister of Police
[2021]
ZACC 10
paras [21] to [28].
[3]
Sekhoto
op
cit fn 1 paras [24] and [25].
[4]
Duncan
v Minister of Law and Order
1986
(2) SA 805
(A) at 818 G – H and
Sekhoto
op cit fn 1 para [6].
[5]
Sekhoto
op
cit fn 1 para [48].
[6]
Minister
of Law and Order v Dempsey
1988
(3) SA 19
(A) at 37 B- 39 F.
[7]
Ibid
at 38 G.
[8]
MR
v Minister of Safety and Security
2016
(2) SACR 540
(CC) para [42].
[9]
Sekhoto
op
cit fn 1 paras [33] to [36].
[10]
Sekhoto
op
cit fn 1 para [44].
[11]
Minister
of Safety and Security v Slabbert
[2010]
2 All SA 474
(SCA) para [21].
[12]
Sekhoto
op cit fn 1
para
[50].
[13]
Imprefed
(Pty) Ltd v National Transport Commission
1993
(3) SA 94
(A) at 107 C – E.
[14]
Minister
of Safety and Security and Another v Swart
2012
(2) SACR (SCA) para [20] and
Mabona
and Another v Minister of Law and Order and Others
1988
(2) SA 654
(E) at 658 E.
[15]
Mabona
op
cit fn 14 at 658 E – F.
[16]
Biyela
v Minister of Police
[2022]
ZASCA 36
para [34].
[17]
Petse
AP
Biyela
ibid para [33].
[18]
See
para 28 of this judgment.
[19]
Duncan
op
cit fn 4 at 819 I to 820 B. See also
Manango
and Others v Minister of Police
2021 (2) SACR 225
(SCA) para (8).
[20]
Minister
of Law and Order v Kader
1991
(1) SA 41
(A) at 50 H.
[21]
See
also
Duncan
op
cit fn 4 at 819 I;
Powel
NO and Others v Van der Merwe NO and Others
2005 (5) SA 62
(SCA) para [36] and
Minister
of Safety and Security v Tyokwana
[2014] ZASCA 130
para [11].
[22]
2008
(1) SACR 56
(CC). See also
Jacobs
v Minister of Safety and Security
(unreported Case no CA 327/2012) GHTHCZA delivered on 23 September
2013 para [22].
[23]
Jacobs
op cit
fn 22
para
[20].
[24]
M
R
op
cit fn 8 para [42].
[25]
Mabona
op cit
fn 14
.
[26]
At
658 I to D.
[27]
Matebese
v Minister of Police
(unreported
case no 224/2017) ZAPHC delivered on 18 June 2019 para [28];
The
Minister of Police and one Other v Erasmus
(unreported Case no 182/2019) GHCZA delivered on 19 January 2021 of
para [25] and
Barnard
v Minister of Police and Another
[2019] 3 All SA 481
(ECG) para [35].
[28]
MR
op
cit
fn
8
para
[42].
[29]
Ibid
.
[30]
Barnard
v Minister of Police and Another
op
cit fn 27 para [35] and
Nkosi
v The Minister of Police and Another
(unreported Case no 51083/2015) GTHCZA delivered on 23 August 2017.
[31]
Mawu v
Minister of Police
2015
(2) SACR 14 (WCC).
[32]
Mbotya
v Minister of Police
(1122/10)
[2012] ZAECPEHC at para [25].
[33]
At
para [31].
[34]
Louw
and Another v Minister of Safety and Security and Others
2008
(2) SACR 178
(T) 184 b.
[35]
Louw
ibid
at 184 b – c.
[36]
Liebenberg
v Minister of Safety and Security
(18352/07)
[2009] ZAGPPHC 88.
[37]
At
para [19.23].
[38]
Sekhoto
op
cit fn 1 paras [30] and [31].
[39]
Sekhoto
op
cit fn 1 para [30].
[40]
Noemdoe
v The Minister of Police
(unreported
Case
No 2987/2018) GCHCZA para [36].
[41]
Minister
of Police v Soetwater and Others
(unreported
Case no 217/2016) GHTHCZA.
[42]
Rex
v Dhlumayo
1948
(2) SA 677
(A) at 705;
S
v Hadebe
1997 (2) SACR 641 (SCA).
[43]
Mabona
op
cit fn 14 at 658 I to 659 F.
[44]
Mabona
op
cit fn 14 at 658 I to 659 B.
[45]
See
Zeffertt and Paizes
The
South African Law of Evidence
(3
rd
ed) at p 162 and further.
[46]
See para [16] of this judgment.
[47]
Qunta
v Minister of Police
[2013]
ZAECGHC 53.
[48]
“
In
the case of actio iniuriarum the fault element involves two
considerations. The first is that the defendant acted intentionally
and the second is that the defendant knew that the act was
wrongful.”
Smit
v Meyerton Outfitters
1971
(1) SA 137
(T) at 139 D.
(
Translated
by Loubser et al
The
Law of Delict in South Africa
at p 377). In
Minister
of Justice v Hofmeyer
[1993] ZASCA 40
;
1993 (3) SA 131
(A) at 157 B this was confirmed as a correct
statement of the law.
[49]
Bennett
v Minister of Police and Another
1980
(3) SA 24
(C) at 37 D – E.
[50]
Protea
Assurabce v Lamb
1971
(1) SA 530
(A) at 534 H to 535 H and
Minister
of Safety and Security v Seymour
2006 (6) SA 320
(SCA) at para [11].
[51]
Minister
of Safety and Security v Tyula
2009
(5) SA 85 (SCA).
[52]
Ibid
para [26]. This passage was quoted with approval by the
Constitutional Court in
Mahlangu
and Another v Minister of Police
[2021] ZACC 10
para [51]. See also
Diljan
v Minister of Police
[2022] ZASCA 103
para [16] and the word of caution expressed in
paragraph [17] of that judgment.
[53]
Mahlangu
and Another v Minister of Police
op
cit fn 52 para [52];
Diljan
v Minister of Police
op cit fn 52 para [18] and Visser & Potgieter
Law
of Damages
(3
rd
ed) at p 545 to 548 and the authorities referred to.
[54]
Visser
and Potgieter op cit fn 48 at p 551.
[55]
Minister
of Safety and Security v Seymour op cit
fn
50
at
para [17].
[56]
Ibid
para [17].
[57]
Protea
Insurance Co Ltd v Lamb
1971
(1) SA 530
(A) at 535 H – 536 B referred to with approval in
Minister
of Safety and Security v Seymour
op
cit fn 50 para [17].
[58]
Minister
of Safety and Security v Seymour
op cit fn 50 para [17]. See also
Rudolph
and Others v Minister of Safety and Security and Another
2009
(5) SA 94
(SCA) para [26];
Brits
v Minister of Police and Another
[2021] ZASCA 161
; and
Minister
of Safety and Security v Tyula
op cit fn 51 para [26].
[59]
Brits v
Minister of Police and Another op cit
fn
58
.
[60]
Minister
of Police and Another v Erasmus
[2022]
ZASCA 57.
[61]
Diljan
v Minister of Police op cit
fn
52
.
[62]
Mahlangu
and Another v Minister of Police op cit
fn
52.
[63]
De
Klerk v Minister of Police
2021
(4) SA 585
(CC).