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[2021] ZAGPPHC 290
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Lawu and Another v Minister of Police (12400/17; 12401/17) [2021] ZAGPPHC 290 (24 May 2021)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been redacted
from this document in compliance with the law and
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IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
no: 12400/17
12401/17
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES:
NO
REVISED:
YES
DATE:
10 May 2021
In
the matter between:
BONGANI
INNOCENT
LAWU
First Plaintiff
TSHEPO
MAKOBI
Second Plaintiff
and
THE
MINISTER OF
POLICE
Defendant
NEUKIRCHER
J:
1]
This is an action for damages against the defendant stemming from the
allegedly
a) unlawful arrest and detention and b) assault of the
plaintiffs
[1]
by members of
defendant without a warrant and under s40(b) of the Criminal
Procedure Act 51 of 1977 (the CPA).
2]
The plaintiffs each issued out separate action against defendant
which were then
consolidated for purposes of trial.
3]
The matter proceeded on merits only.
4]
The defendant has admitted that the arrests were without a warrant
and its case
is that the offence was a Schedule 1 offence of theft
and that as it was based on a reasonable suspicion that plaintiffs
had committed
the offence, the arrest was lawful. The defendant
denied the assault allegations.
5]
At the pre-trial conference held on 16 February 2021 the parties
agreed that,
although defendant bore the onus in respect of the
arrest, as plaintiffs bore the onus as regards the assault and
therefore the
plaintiffs would bear the duty to begin.
The witness
6]
There were five in total:
6.1 Lawu;
6.2 Makobi;
6.3 Mrs Lawu
(Lawu’s mother and Makobi’s aunt);
6.4 Sergeant
Rasenyalo; and
6.5 Constable
Molaudzi.
The evidence
7]
Lawu’s evidence was that at approximately 23h00 on 28 July 2015
he was
sleeping at this aunt’s flat, where Makobi resides, when
there was a loud knocking at the door. When he opened the door 6
to 8
policemen barged in with the complainant
[2]
.
The police demanded “
who
is Bongani?
”
and
complainant pointed him out. The complainant then pointed to a jacket
which was lying on the bed and a computer
[3]
which was next to the bed, and told the police that Lawu stole them
and also stole R10,000 from him.
8]
The police then demanded the money from Lawu and began to search the
flat. Although
he asked whether they had a warrant, they ignored him.
9]
They found R320 in the pocket of the jacket which one officer then
pocketed.
10]
Lawu and Makobi were then handcuffed.
11]
Not long after, Mrs Lawu arrived. She witnessed complainant storming
towards Lawu and hitting
him with an open hand on the left side of
his face so hard that the right side of his face hit the wall and he
started bleeding.
12]
When Lawu wanted to press charges against complainant for assault, he
was told to “
shut up
”.
13]
He and Makobi were put into the police van and taken to the Sunnyside
Police Station’s
charge office where they were read their
rights. Lawu again stated he wanted to press charges and was told
“
shut up little boy
”.
14]
He and Makobi were then put in a cell. His head was still bleeding
and he wiped the blood
with his clothes. After a while the bleeding
stopped.
15]
According to Lawu, he was charged on 29 July 2015 and his
fingerprints taken. It is also
important to note that there is
“Statement regarding interview with Suspect” which is
dated 29 July 2015 which specifically
notes the swelling and bruising
on Lawu’s face.
16]
He and Makobi were taken to court for the first time on 30 July 2015
and their cases were
remanded for seven days to confirm their
addresses. The reason for this apparently was that the arrest sheets
gave different addresses
for Lawu and Makobi respectively. According
to Lawu, the prosecutor specifically asked why this was and he
explained that no […],
Pretoria was Makobi’s parental
home and no […], Pretoria was his home. It was the prosecutor
who insisted on confirmation
of address and the matter was then
postponed.
17]
From there they were taken to Kgosi Mampuru Prison
[4]
where he says the prison warder assaulted him with a mug on his head.
He was taken to the clinic and needed stitches. The warder
then gave
him two packets of cigarettes and told him that if he did not say
anything about the assault, he would give Lawu cigarettes
every day.
Because he was scared, he didn’t press any charges.
18]
He and Makobi were eventually, after several appearances, released on
bail on 6 August 2015
and the case against them was withdrawn on 11
November 2015.
19]
According to Lawu in cross-examination:
19.1
Constable Mulaudsi was not at the flat when plaintiffs were arrested
– he saw him
for the first time at the charge office and only
knew his name because he was wearing a name badge;
19.2
six to eight police officers, only two of which were uniformed, came
to the flat to arrest
him and Makobi;
19.3
other than that the arrest was effected without a warrant, he denied
defendant’s
version.
20]
When it came to how he and Makobi knew complainant, his version was
that he met complainant at
the company where he worked as a security
officer and complainant and he became friends and the former would
give him advice.
21]
When Lawu’s contract ended after three months, they would visit
each other’s home.
Lawu said the complainant loved the way he
sang and gave him a computer so Lawu could make his own music –
complainant even
installed and set up the computer at the flat.
22]
As to the money: complainant sent Lawu to the ATM to draw money for
him. He gave Lawu his ATM
pin and instructed him to draw R300 to R350
each time. He was in possession of complainant’s jacket as it
had been lent to
him the same day he was arrested as it was a cold
day and complainant had sent him to draw money again. He testified
that he had
given the complainant the money each time he had
withdrawn it at complainant’s behest.
23]
He saw complainant at approximately 11h00 that morning and said
complainant looked “
clumsy
”
and “
tired
”
as if he wanted to
sleep
[5]
.
24]
Lawu denied that he had stolen the computer, the jacket or the
R10,000. In fact, the complainant’s
bank statement
[6]
,
which formed part of the docket and was referred to in evidence, also
shows no evidence of either a single withdrawal of R10,000
or several
withdrawals which total R10,000. What it does show are the following
withdrawals:
24.1
on 25 July 2015
R 350.00
24.2 on
26 July 2015
R 350.00
24.3 on
26 July 2015
R 300.00
24.4 on
26 July 2015
R 150.00
24.5 on
27 July 2015
R 300.00
24.6 on
27 July 2015
R
400.00
R1750.00
25]
On Lawu’s version he drew money for complainant on
approximately three occasions in amounts
not exceeding R350.00 and,
apart from the last withdrawal on 27 July 2015, the bank statement
confirms this version.
26]
Lawu’s head injury also finds support in the “Statement
regarding interview with suspect”
which is dated 29 July 2015
at 09h15 which records in par 7:
“
*…
I asked the suspect to show me the injuries and noticed the
following: -
Swollen head
* I asked the suspect
how and when he/she* has sustained the injuries and he or she replied
as follows:-
assaulted by the
complainant”
27]
That same statement records that Lawu refused to make any statement
and stated:
“
I do not agree
with the allegations and I would like to give my statement in court.”
28]
It remained Lawu’s position throughout his evidence that he had
attempted to give his version
on more than one occasion during his
arrest, that he was told each time to “
shut
up
”
,
that he was assaulted by complainant in view of the police officers
who stood by and did nothing to prevent this assault, that
he was
again assaulted by a Correctional Services Officer at New Lock Prison
and that he was prevented from laying a charge of
assault against
complainant and later against the Correctional Services Officer
[7]
.
Tshepo Makobi
29]
His evidence was that on 28 July 2015 he and Lawu were their flat
when there was a hard knock
on the door. When he opened it there were
six to eight people outside with the complainant and Mrs. Lawu. They
pushed past him
and asked “
who is Bongani?
” The
complainant pointed out Lawu and then Lawu and he were handcuffed.
30]
He stated that Lawu was injured when complainant slapped him with an
open hand and as a
result, Lawu’s head bumped against the wall
and he was bleeding. Complainant assaulted Lawu in full view of the
police stating
“
this is what I wanted to do to you in front
of the police
.”
31]
None of the police officers told him why he was being arrested. All
he knew is that the
allegation was that Lawu had stolen two
computers, a jacket, R10,000 and some cellphones.
32]
He confirmed that complainant had given Lawu a computer and had lent
him his jacket. He
also confirmed that complainant would send Lawu to
draw money for him on occasion and that the money found in the jacket
pocket
by the police belonged to Lawu and not the complainant.
33]
He testified that the complainant was their friend; that they would
visit each other and
that complainant enjoyed listening to Lawu
“rapping” and that he had given Lawu a computer so he
could make music.
This was why, when the police arrested them a month
later for theft, they were so shocked.
34]
His evidence was further that he was assaulted by a police officer at
the cell – he
was slapped with an open hand and pushed. He did
not have any injuries.
35]
He found out in prison, from Iyanda, that the latter had been
arrested for stealing two
computers, five jackets, R10,000 and
cellphones. It bears mentioning that Iyanda was the third person
referred to in the complainant’s
statement as having committed
the theft.
36]
On their first appearance, plaintiffs were not granted bail: they
plead not guilty and their
case was postponed for further
investigation.
37]
He confirmed that he witnessed the assault on Lawu by the
Correctional Services Officer
at New Lock.
38]
In cross-examination, Makobi confirmed that six to eight police
officers arrived to arrest
them; that two were in police uniform;
that Lawu was assaulted in full view of the police and was injured
and bleeding as a result,
and remained adamant that the police did
not tell him why he was being arrested.
39]
Although he was not a particularly dynamic witness he confirmed
Lawu’s evidence in
all material respects.
Mrs. Lawu
40]
Her evidence was that the police and complainant arrived at her
residence between 22h00
– 23h00 on 28 July 2015 and knocked
hard at the door. They identified themselves and when she opened the
door the complainant
rushed in asking “
where is the
computer?
” and started looking for it and accusing Lawu of
stealing it.
41]
She stated that she specifically said that complainant had given Lawu
the computer a month
earlier and that Lawu was at her sister’s
house. They all then went there.
42]
She said it was “chaos” at her sister’s flat when
they arrived. There
were more than five police officers present of
which only two were in uniform. As the police were arresting the
plaintiffs for
theft, complainant threatened to assault Lawu and then
did so while the police looked on – Lawu hit his head on the
wall
as a result of the assault by complainant and was bleeding.
43]
In her opinion, complainant was drunk at the time
[8]
.
44]
Complainant accused Lawu of stealing his computer and jacket and
despite her again trying
to explain to the police that these items
had been lent to Lawu by the complainant, they refused to listen. She
also testified
that Lawu pointed the policeman out to her who had
allegedly pocketed the R320 found in the jacket pocket.
45]
Approximately two or three days later complainant telephoned her and
asked forgiveness as
he said it was, in fact, Iyanda who had stolen
his possessions.
[9]
He asked Mrs
Lawu to accompany him to the Sunnyside Police Station to secure
plaintiffs’ release. Unfortunately, by then
they had been taken
to New Lock prison. She found out when the court appearance was. On
that date the matter was postponed and
no bail granted because proof
of address was required. According to her, she found this puzzling as
“
they
were arrested where they stayed”.
46]
They were released after she paid Lawu’s bail of R500 and her
sister paid Makobi’s
bail – she did not specify the date.
47]
When Lawu was released she saw he had a stitch on his head. He told
her a prison warder
had hit him on the head with a cup.
48]
She denied defendant’s version.
49]
Plaintiff then closed their case and defendant applied for absolution
in respect of the
claims based on the alleged assaults of the
plaintiffs. An
ex tempore
judgment was handed down in which I
granted the following order:
49.1
the application for absolution in respect of the assault that took
place at New Lock Prison was upheld;
49.2
the absolution application in respect of the remainder of the assault
allegations was dismissed.
The defendant’s
case
Sergeant Rasenyalo
50]
He is a sergeant employed by SAPS and stationed at Sunnyside Police
Station. He has been
a police officer for 15 years and has held his
present rank for 3 years.
51]
On 28 July 2015 he and Constable Mulaudzi were in a marked SAPS
vehicle doing patrol in
Arcadia, Pretoria when they received a
complaint via radio control. They went to complainant’s
residence at approximately
21h30. According to complainant he was
with three men
[10]
on 26 July
2015 – they drugged him and he regained consciousness in the
hospital two days later and was discharged. When
he went home he saw
that the three men had stolen two computers, his jacket and taken his
bank card and withdrawn R10,000. He stated
that he knew where to find
the suspects.
52]
They then all went to the plaintiffs flat at […], Pretoria.
They knocked and Lawu
opened the door. They identified themselves as
police officers (they were in uniform). They explained that the
complainant had
opened a case against them. Complainant pointed out
Lawu as the one who had stolen his possessions and pointed out his
jacket and
computer. He then informed the plaintiffs that they were
going to arrest them, which they did after reading them their rights,
and they seized the stolen property.
53]
His evidence also was that the plaintiffs failed to explain why they
were in possession
of stolen property despite their questioning them.
54]
After the arrest, they took plaintiffs to Sunnyside Police Station
where they were informed
of their Constitutional Rights. After the
plaintiffs were taken to the cells, they had no further knowledge of
what occurred as
his job ended at the arrest.
55]
He was adamant that plaintiffs were justifiably arrested for being in
possession of suspected
stolen property.
56]
In cross-examination, Rasenyalo confirmed that:
56.1
when he laid the charges, complainant stated that two computers, a
leather jacket, cellhpones and cash
had been stolen – they only
found one computer and a jacket in plaintiffs’ possession;
56.2
they did not get a warrant first because complainant stated he knew
who and where the suspects were
and when they got there he pointed
out his property;
56.3
they did not listen to the plaintiffs’ explanation that
complainant had lent them the computer
and jacket because “
people
will say anything to get out of trouble
”;
56.4
that although he is aware that an arrest is not the only means to
secure an accused’s attendance
at court he “
will
arrest if [he] needs to arrest to secure the attendance at court
”
where plaintiffs can state their case;
56.5
the plaintiffs’ explanation of why they were in possession of
complainant’s property was
not sufficient.
[11]
57]
The question regarding whether an arrest shouldn’t be a last
resort yielded the following
response: an arrest is necessary to
secure a court attendance and to prevent a situation where the
accused doesn’t attend
court and can’t be traced.
58]
He denied that either of the plaintiffs were assaulted but could not
explain the recordal
of Lawu’s injury as set out in para 26
supra
.
59]
He denied that there were six to eight police officers at plaintiffs’
residence and
maintained it was only he and Mulaudzi who effected the
arrest. He also denied that R320 was taken and denied speaking to Mrs
Lawu.
60]
He was adamant that as complainant pointed out the plaintiffs and as
they were in possession of
his property and their story was “mixed”
they formed the opinion that there was a reasonable suspicion
upon which
they could effect an arrest in terms of s40(b) of the CPA.
Constable Mulaudzi
61]
He has been in the employ of SAPS since 2012 and is stationed at the
Sunnyside Police Station.
62]
His evidence confirmed that of Rasenyalo in respect of the events
leading up to plaintiffs arrest:
they were on duty when they received
a 10111 call. When they arrived at complainant’s house he
informed them that he suspected
he had been drugged on 26 July 2015
by three men who were at his place. He said certain items were
stolen
[12]
.
63]
He said he knew where the suspects lived and took them to the flat.
They knocked and entered.
Complainant pointed out the plaintiffs and
the complainant pointed out his property. According to Mulaudzi the
plaintiffs were
then arrested.
64]
On his version the plaintiffs were arrested for being in possession
of stolen property and he
did not recall any discussions taking place
with the plaintiffs.
65]
He denied Lawu was assaulted, he denied six to eight police officers
were present and also denied
going to Mrs Lawu’s residence
first.
66]
In cross-examination he conceded that he had not tried to ascertain
the truth of the allegations
before effecting the arrest – his
version was that, as police officers, they must listen to what the
complainant states and
that it is not for them to judge. He also
testified that an arrest is the most secure way “
of ensuring
a suspect’s attendance at court
” and that “
it
is too much of a risk
“to take a suspect in first for
questioning and then release them.
67]
He has no knowledge of what happened to the case after the plaintiffs
were detained in the Sunnyside
Police Station cells.
68]
It was also demonstrated in cross-examination that:
68.1
on 22 September 2015 the Magistrate “
refused
further remand. Matter struck off the roll. Please complete
investigations and return docket for decision
.”
68.2
on 24 November 2015 a
nolle
prosequi
was issued in respect of both plaintiffs.
69]
It was put to Constable Mulaudzi that the
nolle prosequi
was
proof that the arrest was unlawful, which he denied.
70]
That then concluded the evidence.
The witnesses
71]
Whilst neither the first nor the second plaintiffs were particularly
dynamic witnesses, all the
evidence presented on the material aspects
of their case corroborated their version. Any discrepancies
[13]
do not disturb my view that their evidence was reliable.
Unfortunately, the defendant’s witnesses did not make a
particularly
good impression, especially given that they contradicted
documentary evidence: they denied any assault on Lawu and denied he
was
showing any signs of injury. But in the Interview Statement
[14]
that injury is specifically mentioned. The fact that they did so, and
the one attempted to corroborate the version of the other,
indicates
their unreliability as witnesses.
The legal position
72]
The principles regarding an unlawful arrest are trite:
72.1
an arrest or detention must be constitutionally and statutorily
justified
[15]
and the reason
for this is obvious: it deprives a person of their liberty and
dignity
[16]
;
72.2
where an arrest takes place without a warrant, once the arrest and
detention are admitted the onus
rests on the State to prove the
lawfulness thereof
[17]
;
72.3
to discharge this onus, the defendant must show that a) the arrestor
was a peace office; b) that he
or she entertained a suspicion; c)
that the suspicion was that the arrestee had committed a Schedule 1
offence and d) that the
suspicion rested on reasonable grounds
[18]
;
72.4 an
honest belief in the legality of the arrest or detention is no
defence
[19]
73]
s40 of the CPA provides:
“
(I)
A peace officer may without warrant arrest any person –
(a)
who commits or attempts to commit any offence in his presence;
(b)
whom he reasonably suspects of having committed an offence
referred to in Schedule 1 other than the offence of escaping from
lawful
custody.”
74]
Schedule 1 of the CPA includes, for purposes of s40 and 42,
inter
alia
:
“
Theft, whether
under the common law or a statutory privisio”
and
“
Receiving
stolen property knowing it to have been stolen”
75]
It is so that an arrest is not the only manner of securing an
accused’s attendance at court.
In terms of the CPA, the others
are via summons, written notice and indictment.
76]
In
Louw
v Minister of Safety and Security
[20]
,
Bertlesmann J found that given the other methods of securing an
accused’s attendance at court, and given the severe inroads
an
arrest and detention makes on an individual’s freedom and
dignity, there was a fifth jurisdictional requirement before
an
arrest could be made: there must not have been a less invasive option
available in order to bring the suspect before court.
77]
However in 2011 the Supreme Court of Appeal (SCA) put an end to that
debate in
Minister
of Safety and Security v Sekhoto and Another
[21]
when it found that to construe the provisions of s40(1)(b) of the CPA
to include this fifth jurisdictional requirement would unfairly
and
incorrectly fetter an arresting officer’s discretion and that
no such requirement exists.
78]
Of particular importance insofar as the exercise of that particular
discretion is concerned, is
the following:
“
[28]
Once
the jurisdictional facts for an arrest
,
whether in terms of s40(1) or in terms of s43,
are
present, a discretion arises
.
The question whether there are any constraints on the exercise of
discretionary powers is essentially a matter of construction
of the
empowering statute in a manner that is consistent with the
Constitution.
In
other words, once the required jurisdictional facts are present the
discretion whether or not to arrest arises. The officer,
it should be
emphasised is not obliged to effect an arrest.
This was made clear by
this court in relation to s43 in Groenewald v Minister of
Justice
[22]
.
[29]
As far as s40(1)(b) is concerned, van Heerden JA said the following
in Duncan (at 818H-J)
“
If the
jurisdictional requirements are satisfied, the peace officer may
invoke the power conferred by the subsection, i.e., he may
arrest the
suspect. In other words, he then has a discretion as to whether or
not to exercise that power (cf Holgate-Mohammed v
Duke
[1984] All ER
1054
(HL) at (1057). No doubt the discretion must be properly
exercised. But the grounds on which the discretion can be questioned
are
narrowly circumscribed…”
Was
there a reasonable suspicion that the plaintiffs had committed a
Schedule 1 offence?
79]
Thus the first question is whether the police officers reasonably
suspected that plaintiffs had
committed
[23]
a Schedule 1 offence. In my view the answer is “no”:
according to the evidence, the complainant’s charge was
that
plaintiffs had stolen two computers, a jacket, taken complainant’s
bank card and withdrawn R10,000
[24]
and taken cellphones. According to Mulaudzi, the accusation was that
they had stolen a desktop screen, boxes and clothes.
It is common
cause that a computer and a jacket were pointed out by complainant
and Lawu admitted that they belonged to complainant.
The plaintiffs’
version was that these had been lent to Lawu – it is common
cause that both police officers refused
to entertain any explanation
for the possession of the goods
[25]
.
It is also the defendant’s version that they had not found any
money at the flat. The plaintiffs’ explanation for
being in
possession of the complainant’s property, as corroborated by
Mrs Lawu prior to the plaintiffs’ arrest, demonstrates
that a
proper investigation was required prior to an arrest being made.
Did the police
officers exercise their discretion reasonably?
80]
It remains trite that the purpose of an arrest is to bring a suspect
before a court
[26]
.
81]
Even if it could be said that the police officers had entertained a
reasonable suspicion that
the plaintiffs had committed a Schedule 1
offence, the question in the present matter is: was it necessary to
arrest the plaintiffs
in order to secure their attendance at court?
82]
In answering this question, the evidence presented by the defendant
is particularly instructive
as:
82.1
Sgt Rasenyalo simply stated that although he was aware that an arrest
is not the only means to secure
an accused’s attendance at
court he “
will
arrest if [he] needs to arrest to secure the attendance at
court.”
[27]
82.2
Constable Mulaudzi testified that an arrest is “
the
most secure way”
of
ensuring a suspect’s attendance at court and that it is too
much of a risk to first take the suspects in for questioning
and then
release them
[28]
83]
The only possible way that there was “
too much of a risk”
in this matter is if the addresses given by plaintiffs were false and
indeed at their first appearance in court on 30 July 2015,
the matter
was remanded to confirm their addresses.
84]
But, in my view and on the facts of this particular matter, the above
is demonstrative of the
fact that both Rasenyalo and Mulaudzi simply
failed to exercise the discretion conferred on them by s40(1)(b) and
as confirmed
in a long line of authorities including
Duncan
and
Sekhoto
. I say this for the following reaons: on
defendant’s version –
84.1
when these police officers went to take complainant’s statement
on 28 July 2015 he told them
he knew where to find the suspects
[29]
.
Thus he knew where they lived;
84.2
on their own version, the police officers were taken straight to the
flat where they actually found
both plaintiffs and arrested them
there.
85]
Thus there could never have been any issue of a false physical
address being provided as the two
police officers tried to intimate
in their evidence.
86]
On plaintiffs own version, and as corroborated by Mrs Lawu, the
complainant and the two SAPS officers
first went to her address and
when they didn’t find plaintiffs there they went to the flat.
Thus, even on that version, SAPS
was at all times fully aware of
where they could find plaintiffs.
87]
Thus, in my view, it was not necessary to arrest the plaintiffs in
order to secure their attendance
at court and in doing so the
defendant failed to exercise their discretion correctly.
88]
Given this, given that not all the allegedly stolen property was
found in possession of the plaintiffs,
given that they had both
provided the police officers with an explanation for the possession
of the goods, and given that both
police officers knew where they
could find both plaintiffs, I find that the police officers failed to
exercise the discretion conferred
on them by s40(1)(b) properly and
thus the plaintiffs must succeed on the issue of the unlawful
arrest
[30]
. This being so,
their subsequent detention until they were brought before a court on
30 July 2015 is also unlawful.
The detention from
30 July 2015 until 6 August 2015
89]
The next leg of the enquiry is: was the subsequent detention of
plaintiffs until their release
on bail on 6 August 2015 unlawful? The
reason for their further detention, according to Lawu’s own
evidence, was that the
prosecutor was not satisfied with the
explanation given by the plaintiffs as to why they had two addresses.
He wanted confirmation
of address and thus their case was postponed
by the court for this purpose.
90]
Both police officers testified that after plaintiffs were arrested
they had no further knowledge
of the case and their view was that any
damages would fall within the purview of the Minister of Safety and
Security. This too
was the submission made by defendant’s
Counsel.
91]
In
De
Klerk v Minister of Police
Theron
J
[31]
found that the
investigating officer was aware that the applicant would not be
released on bail at his first appearance in court,
such appearance
being a mere formality in a busy remand court and that the police
officer subjectively foresaw the precise consequence
of the unlawful
arrest of the applicant but it appears that this was found as a
result of direct evidence before the court
[32]
,
which is not the position here.
92]
As was stated:
[76] A
reasonable arresting officer in the circumstances may well have
foreseen the possibility that pursuant to an unlawful
arrest, the
arrested person would routinely be remanded in custody after their
first appearance. Here, however, the arresting officer
had actual
subjective foresight that the proceedings in the ‘reception
court’ would occur as they did and that the
applicant would not
be considered for bail at all and accordingly suffer the harm that he
did.
[77] The High
Court in Ebrahim, the Police Minister (Minister of Law and Order)
contended that his
liability relating to the unlawful arrest of the plaintiff was
limited to the time of
the plaintiff’s detention until the date of his first
appearance before a Magistrate. The High
Court reasoned that in
order to determine whether the Police Minister was liable, it had to
be established whether the requisite
causation was present to give
rise to legal responsibility. Applying the test for causation
as enunciated in Skosana and
Bentley, the High Court concluded that
the plaintiff’s loss of liberty was caused by the abductors’
wrongful acts,
but for which he would have been a free man:
“
I
am of [the] opinion that a supervening act which is foreseen as the
likely consequence of the wrong does not break the chain of
causation
and can be taken into account in assessing damages.”
[78] The decision was
confirmed on appeal. The Court held that the original arrest
and re-arrest were linked sufficiently
closely to the respondent’s
continued detention:
“
The
re-arrest flowed from the original arrest and the purpose of both was
to eventually bring the respondent before the courts so
that he might
ultimately be convicted and sent to prison. This purpose was
achieved and the responsible police officers must
have foreseen that
the respondent might be detained until so sentenced. Hence the
roles of the Attorney-General and the courts
in the whole process
constituted no more than contributory links in the chain of
causation.”
[79]
Professor Burchell is of the view that an intervening event does not
necessarily break the causal
chain where it was subjectively
foreseen, even though it is otherwise considered as abnormal.
Burchell explains that “[a]n
abnormal event which would
otherwise rank as a novus actus does not so rank if it was
actually foreseen (or was reasonably
foreseeable in negligence cases)
or planned by the accused”.
[80]
Professor Snyman puts it as follows:
“
All
the . . . rules relating to a novus actus are subject to the
qualification that if X planned the unusual turn of events or foresaw
it, it cannot amount to a novus actus. This accords with the
rule of the adequate causation test . . . that, in determining
whether an act tends to lead to a certain result, one should take
into account not only the circumstances ascertainable by the
sensible
person, but also the additional circumstances known to X.”
[81]
As explained, subjective foresight of harm cannot itself necessarily
imply that harm is not too
remote from conduct. It is, however,
a weighty consideration. In the present matter, Constable Ndala
subjectively foresaw
the precise consequence of her unlawful arrest
of the applicant. She knew that the applicant’s further
detention after
his court appearance would ensue. She
reconciled herself to that consequence. What happened in the
reception court
was not, to Constable Ndala’s knowledge, an
unexpected, unconnected and extraneous causative factor – it
was the consequence
foreseen by her, and one which she reconciled
herself to. In determining causation, we are entitled to take
into account
the circumstances known to Constable Ndala. These
circumstances imply that it would be reasonable, fair, and just to
hold
the respondent liable for the harm suffered by the applicant
that was factually caused by his wrongful arrest. For these
reasons, and in the circumstances of this matter, the court
appearance and the remand order issued by the Magistrate do not
amount
to a fresh causative event breaking the causal chain.”
[33]
93]
Thus, on the facts of this matter and given that it was the decision
of the prosecutor to recommend
that the matter be remanded despite
the plaintiffs explanation, which the court then did, I find that the
decision of the prosecutor
and the court constitutes a
novus
actus
as
referred to in
De
Klerk
[34]
,
and defendant cannot be held liable for the plaintiffs continued
detention after their appearance on 30 July 2015.
The assault
94]
The question is: is defendant liable in circumstances where the
assault on Lawu was not perpetrated
by a police officer?
95]
Lawu wants to hold defendant liable for an assault committed by the
complainant on him in the
presence of the police officers: the basis
is that the police stood by and allowed the assault to take place.
96]
No authority for this proposition was proffered by counsel.
97]
In
Carmichele
v Minister of Safety and Security and Another (Centre for Applied
Legal Studies Interventing
)
[35]
the Constitutional Court found that there were circumstances in which
the police and prosecution services “
were
among the primary agencies of State responsible for the discharge of
its constitutional duty to protect the public in general
and women in
particular against violent crime, and that on the facts of the
instant case, the applicant was entitled to damages
in delict for
their failure to do so
.”
[36]
.
98]
But the facts in
Carmichele
was a far cry from those in this
case. In that case the egregious behaviour of the authorities –
in ignoring the repeated
efforts by the applicant to persuade the
State to oppose bail of an offender charged with rape and a previous
conviction for indecent
assault, where an interview with the
prosecutor revealed serious sexual deviation and the referral
documents reflected the seriousness
of the rape and sexual deviation
– led to the Constitutional Court finding that the State was
liable for delictual damages
following the release of the suspect on
bail (without opposition) and the appellant being brutally attacked
by him again a few
days later.
99]
In this matter the accounts given by plaintiffs’ witnesses
differed slightly:
99.1
according to Mrs Lawu, the complainant threatened he would assault
Lawu and then hit him which caused
his head to hit the wall:
99.2
according to Lawu and Makobi the complainants words and actions were
virtually simultaneous.
100] It
is also common cause that Lawu was assaulted once.
101]
Whilst the discrepancies in highlighted in par 99
supra
do not
detract from the overall impression of these witnesses, the evidence
suggests that everything occurred virtually in one
continuous action.
There was no prolonged period of threats by complainant before he
assaulted Lawu and the police would not have
been able to intervene
to stop the assault. In any event I find that in the circumstances of
this particular case, the liability
of the State as set out in
Carmichele
does not and cannot be visited in this matter. I
also find that the following is appropriate in this matter:
“…
fears
about the chilling effect such delictual liability for a failure by
the State to take positive action to prevent harm might
have on the
proper exercise of their duties by public servants were sufficiently
met by the proportionality exercise referred to
above and also by the
requirements of foreseeability and proximity. Liability had to be
determined on the basis of the law and
its application to the facts
of the case, and not, as was the case in some foreign jurisdictions,
on the grounds of public interest
immunity granted to public
authorities against such claims.”
[37]
102]
This being so, the assault claim against defendant by Lawu must fail.
103] As
regards the alleged assault on Makobi – he stated in this
evidence that he was assaulted by a member
of SAPS during his arrest
but his Interview Statement specifically records that he “
was
not threatened / assaulted / influenced
”. There being two
conflicting versions put by him before this court, and given that he
bears the onus to prove the assault,
I find that he has failed to
discharge his onus and his assault claim must fail.
Conclusion
104]
The conclusion thus, based on all the evidence, is that both
plaintiffs must succeed solely in their claims
for unlawful arrest
and detention.
Order
105]
The order I thus make is the following:
105.1 the defendant
is ordered to pay 100% of the first and second plaintiffs proven or
agreed damages in respect of their
claims for unlawful arrest and
detention until their appearance in court on 30 July 2015;
105.2 the
plaintiffs’ claims in respect of assault are dismissed;
15.3
the issue of quantum is separated in terms of Rule 33(4) and
postponed
sine
die
;
105.4 the defendant
is ordered to pay the costs of the first and second plaintiffs.
NEUKIRCHER J
Date of hearing: 2 March
to 4 March 2021
Date of judgment: 10 May
2021
Hearing
conducted via videoconferencing
Delivered:
This judgment was prepared and authored by the Judge whose name is
reflected and is handed down electronically
by circulation to the
parties/their legal representatives by email and by uploading it to
the electronic file of this matter on
CaseLines. The date for
hand-down is deemed to be 10 May 2021.
Counsel
for applicants: Adv Modjadji
Instructed
by: MWIM Attorneys
Counsel
for respondents: Adv Tsele
Instructed
by: State Attorney
[1]
In
this judgment 1
st
plaintiff
is referred to as Lawu and 2
nd
plaintiff
as Makobi – or they are
referred
to as “the plaintiffs”
[2]
O
ne
Mr. Ntshabeleng
[3]
P
lugged
in and open next to the bed
[4]
Also known as
New Lock
[5]
During the
evidence it was suggested that the complainant had taken drugs
or
alcohol but
there
was absolutely no foundation laid for this and was pure speculation.
The evidence carries no probative value at all
[6]
For
the period 25 July 2015 to 31 July 2015
[7]
The
latter because he was intimidated
[8]
Again, this
evidence is simply conjecture and has no probative value
[9]
It appears
that Iyanda was later arrested for theft of the complainant’s
property
[10]
I
dentified
as Bongani, T.S and Iyanda
[11]
But see par 53
supra
[12]
A
ccording
to his recollection – a desktop screen and boxes and clothes
[13]
For example whether Mrs
Lawu arrived together with the police officers or after them
[14]
para
26 supra
[15]
Minister
of Correctional Services v Kwakwa [2002] 3 All SA 242 (SCA); 2002
(4) SA 55 (SCA)
[16]
Minister
of Justice v Hofmeyr [1993] 2 All SA 232 (A). 1993 (3) SA 131 (A)
[17]
Brand
v Minister of Justice
[1959] 4 All SA 420
(A)
1959 (4) SA 712
(A) at
714: the plaintiff
need
not allege or prove wrongfulness – it is for the defendant to
allege and prove the lawfulness of the arrest and detention.
Also:
Mhaga v Minister of Safety and Security [2001] 2 All S 534 (Tk); Cf
Ceter Minister of Safety and Security
[2007] 3 All SA 365
(D);
Minister of Law and Order and Others v Hurley and Another
1986 (3)
SA 568
(A) 589E-F
[18]
Duncan
v Minister of Law and Order 1986(2)SA 805(A) at 818 G-H
[19]
Tsose
v Minister of Justice 1951(3) SA 10(A) at 18 Smit v Meyerton
Outfitters
1971 (1) SA
137
(T); Ramsay v Minisster of Police
1981 (4) SA 802
(A) at 818
[20]
2006
(2) SACR 178 (T)
[21]
2011(5)
SA 367 (SCA)
[22]
1973
(3) SA 877
(A) at 883 G-884B
[23]
T
he
test is an objective one: S v Nel and Another
1980 (4) SA 28
(E) at
33H
[24]
According
to Rasenyalo
[25]
In
Ramakuluksha v Commander, Venda National Force
1989 (2) SA 813
(V)
at 836G to 837B
it
was held that in order to ascertain whether a suspicion that a
Schedule 1 offence had been committed is reasonable, there must
be
an investigation into the essentials relevant to the offence
Also
Gellmon v Minister of Safety and Security 2008
(1) SACR 446 (W)
[26]
Kotze
v Minister of Safety and Security 2012(1) SACR 396 (GSJ) at [28]
[27]
par
56.4
supra
[28]
par
51 and 63
supra
[29]
par
52 and 63
supra
[30]
This case is
somewhat trivial: see Sekhoto
supra
[31]
2020(1) SACR 1 (CC)
- writing for the majority court
[32]
See par 81 of the
judgment quoted in par 91 below
[33]
Footnotes removed
[34]
At par [79] of the
judgment
[35]
2002(1)
SACR 79(CC)
[36]
Headnote
[37]
Carmichele
@ par 49