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2021
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[2021] ZAECMHC 2
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Morrison v Minister of Safety & Security (80/2017) [2021] ZAECMHC 2 (12 January 2021)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE LOCAL
DIVISION, MTHATHA
CASE NO: 80/2017
Date of hearing: 08
December 2020
Delivered
on : 12 January 2021
In
the matter between:
LUNDI
MORRISON
Plaintiff
And
MINISTER
OF SAFETY AND SECURITY
Defendant
JUDGMENT
MAJIKI
J:
[1]
There are three plaintiffs in this matter. They initially sued
the defendant in separate actions
but those on 13 February 2019 were
consolidated under the present case number. The cause of action
arose out of the same
incident. They were arrested by members
of the South African Police Services (SAPS) near the Total garage at
Madeira Street,
Mthatha (Total garage). They claim that their
arrests and their subsequent detention were unlawful. They now
sue the
defendant as the person who is vicariously liable for
unlawful acts and omission by the members of the SAPS during the
course and
within the scope of their employment. The action was
defended up to the period before the commencement of trial. It
had been postponed a number of times at the instance of the
defendant, who promised to consider a memorandum sent on the merits
of the matter. Eventually, the matter was heard in the absence
of the defendant. The matter is before court for determination
of liability only.
[2]
The evidence of all the plaintiffs was to a great extent, materially
similar. As a result,
it will be summarised together.
They all reside at Corhana location. They were out in the night
as friends and needed
money for petrol. The three of them had
remained near FNB, York road for those who had gone back to Corhana
to fetch a bank
card. They decided to walk towards Total
garage, in order to buy cigarettes.
[3]
When approaching the garage, they saw police vans and members of SAPS
searching people there.
They were called by the police, they
were also searched and the police found nothing in them, except for
their cellphones and a
sum of R3.00. They were ordered to get
into the police van. They joined other people who were already
in the police
van and were taken to the police station.
[4]
On their arrival at Madeira police station, they were offloaded and
ordered to do a frog jump from the
van to the charge office.
They were directed towards the reception counter and were caused to
wait behind the counter.
Whilst there, two ladies and two
gentlemen walked in. They pointed at them, one said Mr Mlambo
took their phones, cards and
money. Another said Mr Morrison
took their motor vehicle at gun point and bumped it. They were
not allowed to speak
to the people who were accusing them.
Nevertheless, they protested saying they knew nothing about the
accusations.
They were each handcuffed and taken to separate
rooms. Each had their separate bad experiences which would be
more relevant
when quantum of their claims is determined.
[5]
Around 4 a.m. they were taken to Central police station. They
were detained from 19 March 2016.
They were charged on Sunday
20 March 2016 and appeared in court on 22 March
2016. They were also detained
in separate cells. They
were remanded in custody at Wellington prison for bail application.
They were eventually released
on bail on 11 April 2016. They
continued to attend court until charges against them were withdrawn.
The plaintiffs
denied any wrongful-doing.
[6]
No evidence was led on behalf of the defendant. In his plea he
had admitted the arrests
but stated that they were lawful as they
pertained to a common robbery by them. Unfortunately, as the
party who had the onus
to justify the arrest, he did not do so.
[7]
The plaintiffs were arrested without a warrant of arrest. The
legal position is that, arrest
without warrant is
prima
facie
unlawful and requires
justification from the arresting officer. It does not seem as
if the police exercised any discretion
as to whether the plaintiff
ought to have been arrested, from the time of arrest up to the time
following being were pointed out
by their accusers. From the
evidence it does not appear that the plaintiffs were known to the
police. They were not
told that they were suspects in relation
to any offence. They were pointed out much later at the police
station. We
also have no insight of what the officers gathered
during the interviews and what they considered in order to make the
decision
to detain the plaintiffs.
[8]
There are statutorily limited instances where arrest without warrant
may be justified. Section
40(1) lists those instances. In
any of them it would have been the arresting officer who would have
had to place facts before
court, in order to satisfy the court that
the arrest was justified.
Section
12(1)(a) of the Constitution of the Republic of South Africa, 1996
guarantees the right to freedom in that no one shall
be deprived of
his liberty arbitrarily or without just cause. In
Minister
of Safety and Security v Sekhoto
2011
(1) SACR 315
(SCA) at paragraph 16, it was affirmed that the
plaintiff need only allege the deprivation of his freedom and require
of the defendant
to plead and prove justification.
[9]
In my view the plaintiffs have satisfied what was required of them by
alleging the arrests.
Also in evidence I accept their evidence
as true. It was simple consistent and honest.
[10]
In the circumstances, the defendant is found to be liable for the
plaintiff’s unlawful arrest and detention
up to the time of
their first appearance in court. They did not, in this court,
testify about the circumstances surrounding
their further detention,
except to state that the matter was remanded in order for them to
make an application for bail.
In
the result,
1.
The defendant is hereby held liable for the
plaintiff’s damages as a result of their unlawful detention
from 19 March 2016
to 22 March 2016.
___________________________________
B MAJIKI
JUDGE
OF THE HIGH COURT
Counsel
for the plaintiff :
Mr Badli
Instructed by
:
Messrs S Z Jojo Incorporated
30
Wesley Street
MTHATHA
Counsel
for the defendant: Mr Ngadlela
Instructed by
:
The State Attorney
Broadcast
House
94
Sissons Street
Fort
Gale
MTHATHA