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[2021] ZAGPJHC 864
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Phadu v Minister of Police (16924/2018) [2021] ZAGPJHC 864 (9 July 2021)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 16924/2018
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED:
NO
09
JULY 2021
In
the matter between:
KGAHLISO
RUDY
PHADU
Plaintiff
and
MINISTER
OF
POLICE
Defendant
JUDGMENT
Delivered:
By transmission to the parties via email and uploading onto Case
Lines the Judgment is deemed to be delivered. The date for hand-down
is deemed to be 09 July 2021
SENYATSI
J:
[1]
On 9 July 2016, two women were allegedly raped, robbed of their
cellular phones, kidnapped
and assaulted at gunpoint by a male
person. The alleged crimes took place at night, around 22h00 at Ivory
Park, Tembisa in Gauteng
Province.
[2]
The victims of the crimes laid charges with the police. Of the two
ladies, only one
of them, hereafter referred to as Sibongile Mpetla,
claimed she could identify the perpetrator.
[3]
More than two months after the incident, the plaintiff, Mr Kgahliso
Rudy Phadu, was
arrested by Sergeant Baloyi, a member of the South
African Police Services, as a suspect for the crimes. He was charged
with rape,
robbery, assault, and kidnapping. He was arrested without
a warrant and kept in custody for 39 days. He was later released on
bail
on 04 November 2016 and the charges against him were permanently
withdrawn during February 2017 due to the fact that the DNA semen
tests returned a negative result and could not link him to the rape
incident.
[4]
Following the arrest and the withdrawal of charges, the plaintiff
sued the defendant
for wrongful arrest and detention, claiming
damages for harm suffered as a result thereof.
[5]
The plaintiff contends that the investigating officer who effected
the arrest did
not act reasonably in the circumstances as he failed
to thoroughly investigate the case. He further contends that there
was no
identikit drawn of the alleged perpetrator as described by one
of the victims of the crimes and in particular that no investigations
regarding the alleged used firearm were done.
[6]
The defendant contends that the arrest was lawful and justified in
terms of
section 40
of the
Criminal Procedure Act of 1977
in that the
plaintiff was pointed out by one of the victims as the perpetrator in
the alleged crimes.
[7]
The plaintiff called four witnesses. He was first to give evidence in
support of his
claim. He testified that on 26 September 2016, the day
of his arrest, he was at the hair salon which is next to his home.
While
seated he saw a man that he had previously seen on 3 September
2016. He recalled that the unidentified man had told him that someone
had likened him to a rape suspect. The man had not told him who he
was. That strange man then gestured to another man to enter
the
salon.
[8]
In fact, at the commencement of his testimony, the plaintiff revealed
how on return
from a soccer game on 3 September 2016 he met an
unidentified stranger who had intimidated him about the fact that
someone thought
he looked familiar to a rapist. On the day of his
arrest, once the second man entered the salon premises he was
confronted, forcefully
pressed to the seat, and handcuffed. He claims
that he was not informed of the reasons for his arrest and what the
charges against
him were. The second man who came in also did not
introduce himself.
[9]
He testified that when he questioned why he was being arrested, he
was told that he
would explain himself before a court. It is his
further evidence that one of the patrons at the salon, known to him
as “Zakes”
unsuccessfully tried to intervene and asked
the unidentified arrestor the reason for the arrest. The arrestor
responded by telling
Zakes not to interfere.
[10]
Before he was taken away and while in handcuffs the plaintiff asked
if he could use the bathroom.
He was escorted to the bathroom and
thereafter taken to an awaiting white Toyota Corolla vehicle which
was parked outside the salon.
He noticed that the arrestor's vehicle
was not marked as a police vehicle. Upon arrival at the vehicle, he
was ordered to enter
the unmarked vehicle and found a female
passenger inside who proceeded to tell the plaintiff that: “
you
know what you did”
. The plaintiff was taken to Ivory Park
Police Station and after his first appearance at Thembisa
Magistrate’s Court, transferred
to Modderbee prison to await
trial.
[11]
Upon being taken to the Ivory Park police station in the company of
arresting officer, the plaintiff
was asked about the two other people
that were in the car, the unknown female passenger and an unknown man
that he met on 3 September
2016. He responded that he recognised the
man as the same man he had seen on 3 September 2016 but he did not
know the female and
was seeing her for the first time. He again
mentioned that his rights were not read to him at the police station
or the salon during
the arrest.
[12]
After his first appearance at Thembisa Magistrate's Court, the
plaintiff was transferred to Modderbee
prison and kept there for 39
days until his release on bail on 4 November 2016. It is his evidence
that while in custody at Modderbee
prison, he was threatened with
sexual abuse. He explained that the threat made him depressed and as
a result, he attempted to take
his own life by cutting his wrists
with a razor blade in the hope that he would bleed to death. The
intervention of a fellow inmate
saved his life and he was then
offered protection by the said inmate. It is worth noting that the
plaintiff became very emotional
when revealing that part of his
experience in prison. During testimony, he sobbed and stated that he
did not understand why he
was accused of such serious crimes, crimes
he had no knowledge of.
[13]
Under cross-examination by Mr Bangisi, counsel for the defendant, put
it to the plaintiff that
the arresting officer introduced himself on
the day of the arrest and read out to him his constitutional rights.
This version was
seriously denied by the plaintiff. The plaintiff
also denied that he had ever met the woman before his arrest on 26
September 2016.
He admitted that he had seen another man who pointed
him out whilst he was seated in the salon. The plaintiff further
denied that
he was informed of the reasons for his arrest.
[14]
The plaintiff also testified that present at the salon was Mr Gerald
Shabangu, the salon owner
and about five other people including
Zakes, who in his view could corroborate his version of events.
[15]
The second witness to testify on behalf of the plaintiff was Mr
Zakhele Michael Radebe, also
known as ‘Zakes’. He
testified that upon his arrival at the hair salon the people present
were Mr Gerald Shabangu,
Tupac, and the plaintiff. He came into the
hair salon and sat waiting for his turn as he normally did.
[16]
As he was seated, an unidentified man came into the hair salon and
stood by the door. That man
called someone by a hand gesture. Shortly
thereafter, a second man then entered the hair salon. The first man
then pointed out
the plaintiff. The second man approached the
plaintiff and pressed him down. The second man looked angry and
aggressive as he was
pressing the plaintiff to the chair with
excessive force and reached for his handcuffs. While observing the
arrest, he then asked
the man as to what was happening as the
plaintiff was not resisting arrest. He was instructed not to
interfere. The plaintiff asked
to use the bathroom. The plaintiff was
escorted to the bathroom and upon his return, he was taken outside
into an unmarked white
Toyota Corolla sedan. He was concerned by what
had happened and as a result he took photos of the said vehicle using
his cell phone.
[17]
He confirmed that the plaintiffs’ home is opposite the hair
salon. He stated that the plaintiffs'
mother was called onto the
scene of the incident and informed of her sons’ arrest. On
being questioned about the pictures
under cross-examination, he
replied that the photos he had taken on the day of the arrest were no
longer available as he had lost
the cellular phone that contained the
pictures. He further corroborated the plaintiffs’ version that
the arresting officer
never introduced himself and no reason was
proffered for the arrest.
[18]
The third witness to testify on behalf of the plaintiff was Mr Gerald
Shabangu, the owner of
the salon. He confirmed that there were five
people present in the salon at the time of the arrest. He stated that
while the plaintiff
was seated a strange man entered the salon and
asked the plaintiff whether he remembered him. The plaintiff asked
him who he was,
to which no answer was given. Then a second man
entered the salon and pressed the plaintiff to the seat and proceeded
to handcuff
him. Zakes asked the second man why the plaintiff was
being handcuffed and the man told him to let the law take its course.
The
plaintiff asked to use the bathroom and was taken thereto. From
the bathroom, the plaintiff was taken to a white Toyota Corolla
sedan
and driven away.
In
his evidence, he pointed out that he did not assume that the men were
police officers. He also confirmed the plaintiffs' version
that the
men did not introduce themselves as police officers and they were not
in police uniform but rather casually dressed.
[19]
The fourth witness to testify was Mr Thembelani Fikifiki Lephoto who
testified as an expert witness.
He holds a Masters degree in Clinical
Psychology from the University of Zululand which he obtained in 2012.
He has been in active
private practice since 2014. He offers
psychotherapy to patients with psychological issues and has
experience in report writing,
amongst them medico-legal reports.
[20]
He testified that on 22 January 2020 he carried out an interview in
Sepedi on the plaintiff.
The report was finalised on 7 February 2020.
The purpose of the report was to assess and diagnose the impact of
the arrest and
imprisonment. After testifying about the background
given to him by the plaintiff, he further testified that the
psychological
effects the plaintiff has are nightmares about the
arrest and detention, he also suffered from psychological trauma,
personality
and behavioural changes as well as anger and aggression
towards people.
[21]
In his assessment, he concluded that the plaintiff suffered from mood
disorders and post-traumatic
stress disorder. Mr Lephoto recommended
that the plaintiff be referred to a clinical psychologist and
psychiatrist for further
attention. He conceded that he had not
published any article in any medical journal but maintained that the
tools he relied on
to assess the plaintiff are used regularly in the
field. His mandate in the plaintiffs' case was to assess and he did
not do any
intervention programme. He maintained that one assessment
would not be enough and that the plaintiff needed further medical
attention.
After Mr Lephotos’ evidence, the plaintiff closed
its case.
[22]
The defendant called one witness, namely Detective Sergeant Jacky
Baloyi. He testified that he
has been with the South African Police
Service for 15 years and has been a detective sergeant since 2009. He
testified that he
knew about the arrest of the plaintiff. He stated
that he started investigating the charges on 11 July 2016 when the
case was opened.
[23]
As part of his investigation, he interviewed the complaints regarding
the details of the incident.
Only one victim, Sibongile Mpetla,
stated that she could identify the perpetrator. Almost two months
after the charges were laid,
he received a phone call from one of the
complainants on 26 September 2016, informing him that she had seen
the suspect. Following
up on the lead he was taken to an address in
Ivory Park by the complaint. He was in the company of a colleague.
His colleague has
since been dismissed from the police service.
[24]
Upon arrival at the address, the complainant pointed out the suspect
at the neighbour’s
house. He stated that he went to the suspect
and introduced himself. He said he warned him of his rights and
informed the plaintiff
about the arrest. He confirmed that the
plaintiff did not resist arrest. He testified that although there
were people in the neighbours’
house from which the arrest took
place, he did not speak to any of them. He took the plaintiff to
Ivory Park Police Station where
upon arrival he was made to sign a
copy of his constitutional rights.
When
questioned whether he had met the plaintiff before the day of his
arrest he responded that he met the plaintiff for the first
time on
the day of his arrest. He was never at court during the plaintiff’s
subsequent court appearances after the arrest.
Under
cross-examination, he admitted that he completed the basic detective
course in 2015. He also confirmed, from the content
of the docket,
that the suspect was only identified as tall and dark according to
the statement taken on 9 July 2016. The witness
also confirmed that
the alleged crime took place at around 22h00 at night at Ivory Park,
Tembisa. No facial features were mentioned
in the statement and he
never ordered the identic kit. The only reason for the arrest of the
plaintiff was as a result of the call
from Sibongile Mpetla.
[25]
The witness conceded that the identikit was never used to investigate
the crimes. He also told
the court that the firearm used in the
crimes was never investigated. Sergeant Baloyi further conceded that
after being shown the
notice of rights form, the plaintiff was
required to sign as a suspect, this did not happen and the form
remained unsigned. Despite
this fact, the witness insisted that the
constitutional rights were read to the plaintiff.
[26]
In light of the above facts the issues that require careful
determination are as follows:
(a) Whether the detention
was wrongful and unlawful;
(b) Whether the amount
claimed is justifiable in the circumstances.
These
issues will be dealt with in the context of the legal principles
applicable.
[27]
The basis of liability for unlawful arrest and detention should be
considered through the constitutional
right guarantee in section 12
(1) of the Constitution not to be arbitrarily deprived of freedom and
security of the person. The
right not to be deprived of freedom
arbitrarily or without just cause applies to all persons in the
Republic.
[1]
These rights,
together with the right to human dignity, are fundamental rights,
entrenched in the Bill of Rights.
[2]
The
state is required to respect, protect, promote and fulfil these
rights, as well as other fundamental rights.
[3]
[28]
It is trite that this is a delictual claim which comprises of
wrongful, culpable conduct by one
person that factually causes harm
to another person that is not too remote.
[4]
When the harm in question is a violation of a personality interest
caused by intentional conduct then the person who suffered the
harm
must institute the
actio
iniuriarum
(action for non-patrimonial damages) to claim compensation for the
non-patrimonial harm suffered.
[29]
A claim under the
actio
iniuriarum
for unlawful arrest and detention has specific requirements
[5]
:
(a) the plaintiff must
establish that his liberty has been interfered with;
(b) the plaintiff must
establish that this interference occurred intentionally. In claims
for unlawful arrest, a plaintiff need
only show that the defendant
acted intentionally in depriving his liberty and not that the
defendant knew that it was wrongful
to do so;
(c) the deprivation of
liberty must be wrongful, with the onus falling on the defendant to
show why it is not and;
(d) the plaintiff must
establish that the conduct of the defendant must have caused, both
legally and factually, the harm for which
compensation is sought.
[30]
In the present action, the claim is restricted to damages under the
action iniuriarum.
Under
the action iniuriarum
the
injury to personality involves an element of
contumelia
or
insult.
[31]
When the charges were laid in July 2016, the defendant’s
members had ample time to investigate
the charges. The police had at
their disposal, the capacity to prepare the identikit based on at
least what was related to them
in a statement by Sibongile Mpetla.
She was the only one of the two victims who said she could positively
identify the suspect.
Sergeant Baloyi, as an investigating officer in
the case, failed significantly to ensure that the preparation and
finalisation
of the identikit by his colleagues was finalised. As a
consequence; when leads such as the call received from the
complainant,
Sibongile on 26 September 2016 was given to him, he
ought to have by that time finalised the identikit to at least have a
picture
to compare the identified suspect with, having first
discussed same with the complainant. He failed to discharge a basic
detective
duty especially given that the alleged crimes were
committed in the dark around 22h00. Any arrest ought to have been
approached
with caution as it may out to be wrongful. It is
disappointing that someone with 15 years of experience in detective
policing could
fail to do such a bare minimum.
[33]
There has not been any explanation proffered by the defendant on
reasons why Sibongile Mpetla
has not been called as a witness to
assist this court on her observations of the suspect. It was in my
respectful view, improper
for Sergeant Baloyi to rely on the
identification features of the suspect as only “tall and dark",
given that there
are many "tall and dark" male persons in
Ivory Park. Reliance on these two features to effect an arrest of the
plaintiff
was grossly invasive, wrongful and unlawful.
[34]
The plaintiff has been able to show that the arrest was unlawful. I
have no reason to reject
the evidence that when Sergeant Baloyi
effected the arrest on 26 September 2016, he did not introduce
himself nor did he read the
constitutional rights to the plaintiff.
This was confirmed by Mr Zakhele Radebe, who was concerned about why
the plaintiff was
in handcuffs. On being asked what was happening,
Sergeant Baloyi simply replied that Mr Radebe should not interfere
with what was
happening. Sergeant Baloyi himself confirmed that he
did not speak with anyone. It follows that the version of the
plaintiff as
corroborated by Mr Radebe on this point must, on balance
of probabilities, be accepted.
[35]
Another important consideration on the wrongfulness of the arrest is
what has been conceded in
cross-examination of Sergeant Baloyi
regarding failure to ensure that the constitutional rights form was
signed by the plaintiff.
It should be remembered that Sergeant Baloyi
failed to ensure that the Constitutional Rights form was signed by
the plaintiff.
Although he insisted under re-examination by Mr
Bangisi that he read the constitutional rights to the plaintiff, this
does not
appear to be the case. In my respectful view, it is highly
unlikely that he read these rights to the Plaintiff. I hold this view
based on the manner in which the plaintiffs’ arrest was rushed.
In fact, despite the fact that two months had elapsed since
the
charges were laid Sergeant Baloyi had not made any headway with his
investigation. He could not even get the identikit finalised
which
was unfortunate. The manner in which some of our police members rush
into effecting arrests, calls for a review in how crime
detection
within our police is done. If proper processes are in place and
enforced on members of our police, this in my respectful
view will
minimize the number of rushed arrests which either do not result in
convictions or become wrongful. I hold this view
because the
defendant faces the significant number of claims of this nature quite
regularly in our courts.
[36]
The results of the DNA semen test on the plaintiff about the alleged
rape seems to be the only
crime that was under investigation. In
fact, the results proved to be decisive in ensuring the permanent
withdrawal of the charges
against the plaintiff. When questioned
about the rest of the charges the investigating officer, Sergeant
Baloyi, was not helpful
on what happened to the rest of the charges.
Although he insisted that he was investigating other charges, that
part of the evidence
is not supported by any fact.
[37]
Our Constitution ensures the personal liberty of all persons in South
Africa is jealously guarded.
Consequently, arbitrary deprivation of
liberty by any organ of the state must be visited upon with
appropriate sanction by our
courts. I hold the view that the arrest
of the plaintiff was wrongful and unlawful and not protected by
section 40
(1) of the
Criminal Procedure Act.
[38]
The second issue that should be determined is the quantum of the
damages suffered. Settled with
regard to the value of the right
invaded by unlawful arrest and detention.
[6]
In
Sigcau v
The Queen
[7]
,
the court refers to the right of every inhabitant to protection
against any illegal infraction of personal liberty. Malice increases
the damages awarded and can take the form either of abusing power or
acting with an ulterior motive.
[8]
[39]
The seriousness of the deprivation of personal liberty was
highlighted in
May
v Union Government
[9]
.
The degree of humiliation is also a factor to be taken into account
to make a determination on the quantum.
[10]
[40]
Neethling Potgieter and Visser in Neethling’s Law of
Personality identify factors affecting
the amount of the award as
relating to the invasion of a broad category of rights which may be
distilled to include, the right
to personal liberty, the right not to
be arbitrarily arrested without lawful cause, the right to dignity
and the right to ones’
reputation which includes the right not
to be defamed.
[41]
The Court confronted with the request to determine the quantum of
damages should award just and
equitable general damages. There is no
reason not to award general damages in this case.
[42]
In the present case the plaintiff claims in total the sum of R 6
million divided as follows:
(a) unlawful arrest and
detention (39) days R2 000 000;
(b) Deprivation of
freedom and liberty R 1 000 000;
(c) Loss of amenities of
life R 1 000 000;
(d) Impairment of dignity
and reputation R 500 000 and
(e) Psychological trauma
R 1 500 000.
For
the purpose of my Judgment, I will deal with the determination of the
quantum as a globular amount under general non-patrimonial
damages.
[43]
The plaintiff is a fairly young man who was at school at the time of
his arrest. He was still
staying with his parents. He is no longer at
school and his intimate relationship has collapsed as a result of the
arrest. It cannot
be denied that he will carry with him the stigma of
the arrest for the rest of his life. Consequently, an award will be
made, which
in my view, is fair and reasonable not only to the
plaintiff but also the defendant. The claim must therefore succeed.
ORDER
[44]
The following order is made:
(a)
The defendant is ordered to pay the sum of R650 000 to the
plaintiff;
(b)
The interest payable will be at the rate of 10.25% per annum
calculated
from the date of delivery of the letter of demand to the
date of payment of the amount under (a) above.
(c)
Cost of suit.
SENYATSI
ML
Judge
of the High Court of South Africa
Gauteng
Local Division, Johannesburg
REPRESENTATION
Date
of hearing: 09 March 2021
Date
of Judgment: 09 July 2021
Plaintiff’s
Counsel: Adv MJ Ngobeni
Instructed
by: Segala Seshibe Attorneys
Defendant’s
Counsel: Adv N Bangisi
Instructed
by: State Attorney, Johannesburg
[1]
See Mahlangu and Another v Minister of Police (CCT 8820)
[2021] ZACC
10
at para
[25]
[2]
See Section 10 of the Constitution states that every person has
inherent dignity and everyone has the right to have their dignity
respected and protected
[3]
Section 7 (2) of the Constitution, Section 7(1) provides that this
‘Bill of Rights is a cornerstone of democracy in South
Africa.
It enshrines the rights of all people in our country and affirms the
democratic values of human dignity, equality and
freedom
[4]
See De Klerk v Minister Police 2020 (1) SAXCR 1 (CC)
[5]
See Loubser et al, The Law of Delict South Africa 2 ed (Oxford
University Press Southern Africa (Pty) Ltd, Cape Town 2021) at
21
[6]
See Sigcau v The Queen, 12 (SC) 256 AT 26
[7]
Supra
[8]
See Birch v Ring
1914 TPD 109
; Louw and Another v Minister of Safety
and Security and Others 2006 (2) SACR (178) (T)
[9]
1954 (3) SA 120
(N) at 130
[10]
See Minister of Safety and Security v Seymour
2009 (6) SA 320
(A) at
paras 12 and 14