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[2022] ZAECMHC 26
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Poswa v Minister of Police (642/2021) [2022] ZAECMHC 26 (18 August 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION, MTHATHA
REPORTABLE
/ NOT REPORTABLE
Case
No: 642/2021
In
the matter between:
YANDISA
POSWA
Plaintiff
and
MINISTER
OF
POLICE
Defendant
JUDGMENT
DA
SILVA AJ:
[1]
On the unfortunate evening of 24 September
2020, after 22:00, the plaintiff was a paid-up passenger in a motor
vehicle which was
stopped by members of the South African Police
Service (“
the Service
”).
The driver of the said motor vehicle was allegedly driving without a
license. For this, the motor vehicle was taken to
the Police Station
in Elliotdale where the driver was issued with a ticket. Nothing much
turns on the issuance of the ticket.
[2]
It is common cause that the plaintiff was
arrested without a warrant on the fateful night at the Police Station
on a charge of obstructing
the ends of justice. The circumstances
leading to the arrest are however in dispute.
[3]
According to the arresting officer, Lungisa
Mlingo, (Mlingo) the plaintiff is alleged to have been making a noise
at the charge
office of the Elliotdale Police Station in that he, the
plaintiff, was shouting at the members of the Service, saying that
the
members were taking chances by arresting the driver and that
they, the members, wanted money. This happened whilst Mlingo was
filling
out the ticket against the driver. The plaintiff is said to
have uttered the aforementioned words 3 – 4 times for about a
period of 3 minutes. During this period, Mlingo was unable to
complete the ticket as he could not hear the driver’s responses
to the questions posed. According to Mlingo the arrest was in terms
of section 40(1)(a) of the Criminal Procedure Act, 1977 (Act
51 of
1977) (“
the CPA
”).
[4]
It was Mlingo’s evidence that he
arrested the plaintiff for the purpose of ensuring his attendance in
court. He, Mlingo, did
not consider other methods of securing the
plaintiff’s attendance in court as he was of the view that
because of the way
the plaintiff was behaving (shouting), the
plaintiff would not attend court if warned to do so.
[5]
Of course, the plaintiff denies that he was
shouting or making any noise. Instead, the plaintiff testified that
on the fateful night,
after the police had driven the motor vehicle
with its passengers (which included the plaintiff) to the Police
Station, the plaintiff
panicked when he saw that it was getting late,
and he just wanted to go home.
[6]
According to the plaintiff, the panic
started when he saw that the police were man-handling the driver who
was apologizing for driving
without a license. When the plaintiff saw
this and that time was passing, he said to the police that the driver
was not opposing
the police, that the police should either arrest the
driver (in which event the driver must refund him his money) or
release him.
For saying these words, the plaintiff was arrested.
[7]
It is common cause that after the arrest,
the plaintiff was taken to Coffee Bay Police Station where he was
detained until Monday,
28 September 2020. The plaintiff was charged
on the evening of Friday, 25 September 2020.
[8]
On 28 September 2020, the plaintiff was
driven to the cells of Mqanduli Magistrates’ Court from where
he was picked up by
the members of the Service and taken to
Elliotdale Magistrates’ Court. At Elliotdale Magistrates’
Court, the plaintiff
was placed in the holding cells until such time
when he was informed that the prosecutor had issued a
nolla
prosecui
. This was around lunch time.
[9]
Thereafter the plaintiff was taken to the
Police Station in Elliotdale where he was detained for a short while
whilst he was being
processed out of the system.
[10]
In challenging the arrest and detention,
the plaintiff not only averred that they were unlawful but that they
were without reasonable
and justifiable cause and maliciously carried
out. During the trial, the Court asked the plaintiff’s counsel,
Mr. Mbiko,
whether he was challenging the discretion to arrest and
detain, as well. The answer was a resounding yes.
[11]
Having set out the pleaded case and the
evidence, it is apposite for me to deal with the issue of the plea.
The plea was only signed
by an attorney his capacity as attorney for
the defendant. It was not signed by counsel and an attorney or
in
the case of an attorney who, under section 4(2) of the
Right of Appearance in Courts Act, 1995 (Act No. 62 of 1995),
has the
right of appearance in the High Court. This issue was remedied with
the defendant amending his plea with no objection from
the plaintiff.
[12]
Having stated above, I now turn to deal
with the first issue: was the arrest lawful?
[13]
It
is trite law that the police, having admitted the arrest and
detention, bear the onus of justifying same.
[1]
[14]
Section
40(1)
(a)
empowers a peace officer to arrest without a warrant any person who
commits an offence in their presence. The jurisdictional facts
necessary for an arrest under section 40(1)
(a)
are
the following: (i) the arrestor must be a peace officer; (ii) an
offence must have been committed or there must have been
an attempt
to commit an offence
[2]
; and
(iii) the offence or attempted offence must be committed in his or
her presence
[3]
.
[15]
It is commendable that an arrest in terms
of section 40(1)
(a)
should
be confined to serious cases but where a peace officer does effect a
lawful arrest in terms of section 40(1)
(a)
for
what may be considered to be a less serious offence, the arrest or
subsequent detention does not become unlawful merely
because a
summons, or notice to appear in court, would have been equally
effective in ensuring his or her presence at court.
[16]
However,
in
Mpale
NO v Minister of Police
[4]
,
the trial court took into account the fact that the offence was not
of a serious nature in deciding that there was no need to
arrest and
detain, and that less stringent and less invasive procedures were
available to secure the suspects’ attendance
at court.
[17]
The
elements
of
the offence of defeating or obstructing the course of justice are:
‘(a) conduct (b) which amounts to defeating or obstructing
(c)
the course or administration of justice and which takes place (d)
unlawfully and (e) intentionally’.
[5]
[18]
Regard being had to paragraphs 3 and 7
above, it is evident that there are mutually destructive versions
with regards to the issue
of what was uttered by the plaintiff.
However, regard being had to the approach that I take in this matter,
I need not deal with
which version is more probable.
[19]
For the purposes of this judgement and
without making any finding on credibility, I shall accept Mlingo’s
version in respect
of what was uttered by the plaintiff and his
conduct to determine whether such conduct constituted an obstruction
of justice. In
so accepting this version, I repeat, I make no
credibility findings.
[20]
Mlingo said that justice was obstructed
because he could not hear what the driver was saying when the ticket
book was being completed.
However, he also says that the plaintiff
uttered the above-mentioned words 3 – 4 times over a period of
about 3 minutes.
That would mean that the plaintiff would have said
the afore-mentioned words about once per minute, at best for the
defendant.
Clearly this shows that the conduct of the plaintiff, in
the circumstances of this case, was not obstructive and that Mlingo
could
have carried on with his duties.
[21]
Further, the Constitution guarantees the
right to freedom of expression. It is my view that if the plaintiff
had uttered the words
that he said to have uttered, he was free to do
so. It may very well be that Mlingo was offended by these words, and
he used the
letter of the law to arrest the plaintiff as a form of
punishment. Thus, I hold the view that no offence was committed in
the presence
of the peace officer.
[22]
In
light of the above, the arrest was unlawful. It follows that the
detention was also unlawful
[6]
.
[23]
I now turn to deal with the issue of
quantum. The plaintiff did not give any evidence in aggravation of
quantum other than to state
the circumstances of his arrest and the
period of his detention. These facts are adumbrated above and need
not be repeated.
[24]
It is trite that in cases involving
deprivation of liberty, the quantum to be awarded is in the
discretion of the trial court and
such discretion is to be exercised
fairly and generally calculated according to what is good on the
merits of the case. Various
factors play a role in determining an
appropriate amount. It is therefore useful to consider the assessment
of awards for damages
in previous cases.
[25]
In
Nel
v Minister of Police
[7]
the court determined that R35 000 would be appropriate for 20
hours detention in a dirty, stinking cell. In
Madyibi
v Minister of Police
[8]
the court awarded R40 000 for an unlawful arrest and detention
of a 24-hour period.
[26]
In
Domingo
v Minister of Safety and Security
,
[9]
the court awarded R40 000 in respect of unlawful arrest and
detention for the plaintiff who was arrested and released the
following day.
[27]
The plaintiff was arrested in the night of
24 September 2020 and released in the afternoon of 28 September 2020.
The plaintiff was
thus detained for about 3 ½ days.
[28]
Regard being had to circumstances of the
arrest and the period of detention, it would be appropriate for the
defendant to pay the
sum of R95 000.00 for the unlawful arrest
and detention.
[29]
I accordingly make the following order:
(a)
The defendant is held liable for the
unlawful arrest and detention from 24 – 28 September 2020.
(b)
The defendant is directed to pay the
plaintiff the sum of R95 000.00 for the unlawful arrest and
detention from 24 –
28 September 2020.
(c)
The defendant is directed to pay interest
on the afore-said amount from the fourteenth day of judgment to date
of payment.
(d)
The defendant is directed to pay the costs
of suit.
AM
DA SILVA
Acting
Judge of the High Court
Appearances
:
Counsel
for Plaintiff:
Adv Mbiko
Instructed
by:
MK Majavu & Associates
Mthatha
For
Defendant:
Mr Mkhongozeli
Instructed
by:
HN Mkhongozeli Attorneys
Mthatha
Dates
heard:
2 & 3 August 2022
Date
judgment reserved: 3 August
2022
Date
judgment delivered: 18 August
2022
[1]
Minister
of Law and Order v Hurley
1986 (3) SA 568 (A)
pp. 587–589 and
Lombo
v African National Congress
2002 (5) SA 668 (SCA)
para. 32.
[2]
Madyibi
v Minister of Police
2020
(2) SACR 243 (ECM)
.
[3]
Van
Wyk & another v Minister of Police & another
(unreported,
GP case no A617/15, 17 November 2016) at [16] and
Mtshemla
& another v Minister of Police & others
2020
(2) SACR 254 (ECM)
.
[4]
Unreported,
GJ appeal case no A3133/2017, 26 April 2019 at [16].
[5]
R
Snyman
Criminal
Law
6
ed (2014) at 237. There is now a newer edition, but the definition
remains the same – see CR Snyman
Criminal
Law
7ed (2021) at 292.
[6]
Isaacs
v Minister van Wet en Orde
1996 (1) SACR 314
(SCA).
[7]
Nel
v Minister of Police
(CA62/2017)
[2018] ZAECGHC 1.
[8]
2020
(2) SACR 243 (ECM).
[9]
(CA429/2012)
[2013] ZAECGHC 54(5 July 2013).