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[2019] ZAECELLC 32
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Mahlanza v Minister of Police (EL1326/2017) [2019] ZAECELLC 32 (26 November 2019)

IN THE HIGH COURT OF
SOUTH AFRICA
[EAST LONDON CIRCUIT
LOCAL DIVISION: EAST LONDON]
CASE
NO. EL1326/2017
In the matter between:
PHUMZILE
MAHLANZA

Applicant
And
MINISTER OF
POLICE

Respondent
JUDGMENT
JOLWANA J
[1] The plaintiff alleges
in his particulars of claim that on 17 August 2017 at 13h00 he was
arrested by unknown members of the
South Africa Police Services who
were in full uniform and were armed with rifles.  He was
thereafter detained at Fleet Street
police station overnight until he
appeared at the East London Magistrate’s Court the following
day where he was released
on warning.  He now claims damages for
the said arrest and detention which he alleges, were unlawful.
[2] The plaintiff further
alleges that the said arrest even with a warrant of arrest was
wrongful, unlawful, irrational and malicious
in that the police
officers did not exercise their discretion on whether to arrest him
or not properly.  The very manner of
his arrest was calculated
to degrade, embarrass and humiliate him.  He was arrested during
the lunch hour in full view of
his colleagues at work, his senior
managers who became aware of his arrest and he had to account to them
about it, as well as members
of the public in the nearby taxi rank
whose attention would be attracted by the presence of so many police
vehicles.
[3] The police that
arrested him came in a fleet of eight marked vehicles with sirens
blaring.  He was handcuffed and some
of the police officers were
singing as he was walked to a waiting police vehicle.  The sheer
number of the police officers
involved was grossly disproportionate
considering that the very warrant of his arrest was issued for his
alleged failure to appear
at a Maintenance Court for a maintenance
enquiry.
[4] The defendant pleaded
that indeed the plaintiff was arrested in terms of a warrant of
arrest at his place of employment in the
normal way by police
officers who were in their uniform and armed with their standard
service pistols which were holstered.
The defendant denied that
they were armed with rifles.  The defendant further pleaded that
the reason for the arrest of the
plaintiff was his failure to appear
at the East London Maintenance Court for a maintenance hearing in
respect of which the plaintiff
had been summonsed to appear and had
ignored the summons.  Furthermore the plaintiff had been warned
in the subpoena that
his non-appearance at the maintenance hearing
could result in his arrest.
[5] The plaintiff called
Sandelwa Tupha a security guard who was on duty  at the time of
his arrest at the Road Accident Fund
where the plaintiff is
employed.  She testified that on the day of the plaintiff’s
arrest she was at work at her desk
at the main entrance to the
building.  Approximately thirty police officers including
traffic officers entered the building
some of whom came to her desk.
They told her that they were looking for a certain gentleman who
worked for the Road Accident
Fund.  They did not tell her the
name of the person they were looking for.  She asked them to
complete the visitor’s
register after which she referred them
to the 4
th
floor of the building where the Road Accident
Fund reception was located.
[6] She later saw them
coming out of the lift with the plaintiff surrounded by the police
and handcuffed.  When they were outside
of the building the
police started singing “
Wathint’ abafazi, wathint’
imbokodo
”.  Loosely translated this means you strike a
woman you strike a rock.  There were many police and traffic
officer’s
vehicles and she heard sirens of the police vehicles
turned on.
[7] The plaintiff
testified that he has been working for the Road Accident Fund since
2013 and has lived in Amalinda which is one
of the residential areas
of East London for about three years.  He lives with his wife
and children.
[8] On 17 August 2017 at
about lunchtime he was at his desk at his place of work when he
received a call from the receptionist asking
him to come to the
reception which is on the 4
th
floor.  When he opened
the door at the reception he was shocked to see a group of so many
police officers standing in a parade
like formation.
[9] The receptionist told
her that those police officers were looking for him.  One
sergeant Mbuli introduced herself and told
him that they were there
to arrest him for a child maintenance case.  She also showed him
a warrant of arrest.  He told
sergeant Mbuli that he is not
supposed to be arrested because he is maintaining his child and that
proof that he pays maintenance
for the child was at his desk that
very moment and that he could bring that proof of paying the
maintenance for the child.
Sergeant Mbuli respondent that such
proof would be evidence in court and that they were not there for
that purpose, they were there
to arrest him.  She then took out
handcuffs and handcuffed him with his hands to the back.  They
took him into the lift
down to the ground floor.  All the police
officers were women.
[10] When he was taken
out of the building he saw many marked police and traffic officers’
vehicles which turned on their
sirens.  He was taken into one of
the police vehicles and he battled to sit because he was handcuffed
to the back.  He
asked the police officers what that was all
about as he did not think it was about the maintenance of his child
as he was paying
maintenance for the child.
[11] He testified that he
had been summonsed to go to the maintenance court before.  The
complainant in respect of the maintenance
case was captain Zimkitha
Mbishe who is also a police officer and she is the mother of his
child.  When he received the maintenance
summons from the
sheriff he collected all his proof of payments and took them to the
maintenance court and placed them in the file.
He thought that
if the magistrate received proof that he was paying maintenance that
would be the end of the matter.  On the
second occasion he was
summonsed he did not go to the hearing this time because he had
missed the hearing date.
[12] He paid maintenance
for his child although he would miss a month here and there in which
case he would communicate with the
complainant through an sms to
inform her.  He has five children that he is looking after
including the complainant’s
child and he is responsible for all
five of them.
[13] After his arrest he
was taken to Fleet Street police station where he was processed and
taken to a holding cell.  The
conditions in the cell were very
bad with a dirty toilet next to him and his cell mates.  The
toilet had no toilet paper and
there was no privacy at all.  He
had to sleep on a thin mattress with a dirty smelly blanket.
One of the inmates in
that cell was arrested for a drug related
offence.  He could not sleep because other detainees were being
brought into the
cell throughout the night.  He did not know
what to expect from those inmates.
[14] The following day he
was taken to an office in the magistrate’s court building where
he was given a date and warned to
appear on a specific date for the
maintenance hearing.  On that date he was never charged for
failing to appear in court on
the previous occasions.  After the
hearing he consented to pay R1 000.00 per month.
[15] The arrest had a
negative effect on him in that at his place of work he had to account
to his general manager for the arrest.
His relationship with
his wife suffered as he struggled to be intimate with his wife.
His relationship with his daughter
for whose maintenance he had been
arrested also suffered in that it deteriorated.
[16] Under cross
examination he testified that he is aware that August is women’s
month.  He is aware of the song that
was sung at the time of his
arrest which is normally sung during ordinary celebrations especially
during women’s month celebrations
but was unhappy that it was
sung by those female officers whilst arresting him.
[17] The defendant called
sergeant Mbuli, the arresting officer.  She testified that on 17
August 2017 they had an operation
as they normally do as female
police officers in August each year at Fleet Street police station.
They decided to include
as part of the operation the execution of
warrants of arrest which were her responsibility.  The operation
included the female
members of the South African Police Service, the
municipal law enforcement unit and the traffic officers.  They
decided to
go to certain taverns, visited old age homes and executed
warrants of arrest.  The other arrest made that day was at
Kidd’s
Beach and no other arrest was effected in the CBD other
than that of the plaintiff.
[18] She could not
remember how many they were in total as members from all these
branches of the law enforcement agencies.
When she arrested the
plaintiff she was with sergeant Bester.  They arrived at the
plaintiff’s work place and spoke
to the security officer
there.  She already knew the floor they were going to as she had
been there before.
[19] She and sergeant
Bester went to the Road Accident Fund at 4
th
floor.
They went to the receptionist at the 4
th
floor and
enquired about the plaintiff who was called and they had to wait for
him.  After some time the plaintiff arrived.
She informed
him that he was under arrest and showed him the warrant of arrest.
She handcuffed him and told him that she
was arresting him due to his
failure to appear at  the maintenance court.  They took him
to their vehicle and proceeded
to the police station with him where
he was eventually detained.
[20] When they went to
the 4
th
floor she thinks they were about six police
officers but could not be sure as she was focusing on the arrest.
Other police
officers who were with her at the 4
th
floor
went down with her and the plaintiff and others had already exited
the building at that time.  She did not hear any
song being
sung.  She was focusing on arresting the plaintiff and there
were many people there who were standing some distance
away.
Some of those people were police officers and others were members of
the public.  The police did sing the song
alleged by the
plaintiff when they visited the old age home.  On that day they
were not carrying any riffles and they did
not turn on the sirens of
their vehicles.  She and sergeant Bester and the plaintiff
proceeded to the police station in their
vehicle while other officers
continued with other operations.
[21] She testified that
she knows the complainant in the maintenance case but did not know
that she was the complainant in the case
to which the warrant of
arrest pertained when she went to execute the warrant.  She
became aware of it when the plaintiff
mentioned her in the police
vehicle on the way to the police station.  The plaintiff accused
her of arresting him because
she is friends with the complainant. The
plaintiff further said that he was paying maintenance for his child
and did not know why
he was needed in court.  He also said he
wanted to fetch proof to show that he was paying maintenance for the
child.
The plaintiff further mentioned that he had received
summons but saw no need to go to court when he was paying
maintenance.
[22] Under cross
examination she was referred to the police Standing Orders which, in
part, stipulates that although an arrest is
one of the ways of
securing an accused’s attendance in court it was the most
drastic infringement of the rights of a person
and therefore it
should be used as a last resort.  She confirmed being aware of
it, however, a warrant of arrest is an authorization
from court for
the arrest of a person.  She therefore felt that she had to
arrest the plaintiff.  She could not recall
enquiring from the
plaintiff about his place of residence.
[23] The plaintiff did
tell her that he was paying maintenance for the child.  However,
the warrant of arrest was due to his
failure to appear in the
maintenance court.  Although the plaintiff said to her that he
had proof that he was paying the maintenance
for his child, he never
asked to be allowed to fetch the proof and she did not think of
giving him an opportunity to fetch the
proof of the alleged
payments.  If it was still possible for her to take the
plaintiff to court she would have done so but
after 14:00 they were
not allowed to bring arrested persons to court, they have to detain
them until the following day.
[24] She further
testified that she had gone to the Road Accident Fund’s offices
on three previous occasions to look for the
plaintiff and on those
occasions she spoke to a receptionist.  However, she could not
remember the name of the receptionist
or even the dates on which she
went there.  It might very well be that he did not get the
message on all those three occasions.
When asked if there
was no other less invasive way of securing the plaintiff’s
attendance in court other than
arresting him, her response was
that at the time of arresting and detaining the plaintiff she could
not take him to the magistrate
as it was  after 14:00.  She
testified that her discretion did not allow her to warn the plaintiff
to come to court as
against arresting and even detaining him.
She was obliged to arrest the plaintiff with a possibility of taking
him to court
if time allowed.  If time did not allow her to take
him to court she had to arrest and detain him in the cells for the
following
day.
[25] The issue in the
main is whether sergeant Mbuli, armed with a warrant of arrest had
any discretion at all regarding whether
or not to arrest the
plaintiff.  If she had a discretion to exercise, whether she
exercised such discretion properly and did
not arrest the plaintiff
arbitrarily and thus abused her power to arrest in execution of the
warrant of arrest.  It was contended
on behalf of the defendant
that there was no discretion at all and sergeant Mbuli was obliged to
arrest the plaintiff in terms
of the warrant of arrest.
[26]
Section 43 of the Criminal Procedure Act
[1]
(the CPA) provides for a warrant of arrest as follows:
“
(1)
Any magistrate or justice may issue a warrant for the arrest of any
person upon the written application of an attorney–general,
a
public prosecutor or a commissioned officer of police –
(a)
which sets out the offence alleged to have
been committed;
(b)
which alleges that such offence was
committed within the area of jurisdiction of such magistrate or, in
the case of a justice, within
the area of jurisdiction of the
magistrate within whose district area application is made to the
justice for such warrant, or where
such offence was not committed
within such area of jurisdiction, which alleges that the person in
respect of whom the application
is made, is known or is on reasonable
grounds suspected to be within such area of jurisdiction; and
(c)
which states that from information taken
upon oath there is a reasonable suspicion that the person in respect
of whom the warrant
is applied for has committed the alleged offense.
(2) A warrant of arrest
issued under this section shall direct that the person described in
the warrant shall be arrested by a peace
officer in respect of the
offense set out in the warrant and that he be brought before a lower
court in accordance with the provisions
of section 50.
(3) A warrant of arrest
may be issued on any day and shall remain in force until it is
cancelled by the person who issued it or
if such person is not
available, by any person with like authority, or until it is
executed.”
[27] It is common cause
that the plaintiff was arrested on 17 August 2017 on the basis of a
warrant of arrest issued by the magistrate
in East London on 17 July
2017.   The said warrant in part reads thus:
“
THESE
ARE THEREFORE, in the name of the State, to command you that
immediately upon sight hereof you arrest and bring the above

–mentioned, person or cause him/her to be arrested and brought
before the said court to be dealt with according to law.”
It is also common cause
that the warrant of arrest was issued after the plaintiff had been
served two times with a summons requiring
him to appear in the
maintenance court for the maintenance hearing in respect of his
child.
[28]
It was argued on behalf of the defendant that courts are enjoined to
intervene when the interests of children are imperiled
to protect
them.  Counsel for the defendant referred to the case of
Bannatyne
v Bannatyne
[2]
in which the Constitutional Court expressed itself as follows:
“
[27]
Systemic failures to enforce maintenance orders have a negative
impact on the rule of law.  The courts are there to ensure
that
the rights of all are protected.  The judiciary must endeavour
to secure for vulnerable children and disempowered women
their small
but life sustaining legal entitlements.  If court orders are
habitually evaded and defied with relative impunity,
the justice
system is discredited and the constitutional promise of human dignity
and equality is seriously compromised for those
most dependent on the
law.
[28] It is a function of
the state not only to provide a good legal framework, but to put in
place systems that will enable these
frameworks to operate
effectively.  Our maintenance courts and the laws that they
implement are important mechanisms to give
effect to the rights of
children protected by section 28 of the Constitution.  Failure
to ensure their effective operation
amounts to a failure to protect
children against those who take advantage of the weaknesses of the
system”
[29] Maintenance orders
and maintenance enquiries are very important for the reasons stated
in
Bannatyne
.  Therefore they must be enforced and those
required to attend maintenance enquiries have an obligation to
present themselves
at the maintenance courts for those enquiries.
That is why failure to respond to a maintenance summons or to attend
a maintenance
enquiry may lead to possible arrest and could also lead
to detention.
[30] However, does that
mean that the society’s abhorrence of the failure of so many
men in particular, in society to maintain
their children and be there
for them should result in those men being arrested in a ridiculing
manner as a
quid pro quo
for the disgraceful conduct of those
men?  I do not think so and certainly our constitutional and
legal framework makes no
particular exception for the necessary
arrests of those men.  Their right to dignity must still be
respected in my view and
are equally entitled to the presumption of
innocence which is not taken away by an arrest with a valid warrant.
[31]
The legal position regarding arrests on the basis of a warrant was
stated authoritatively as follows in
Minister
of Safety & Security v Sekhoto
[3]
:
“
[23]
It may be convenient to interpose a further mention of s 43.  As
said, it deals with the issue of a warrant for arrest
upon the
written application of a director of public prosecution, a public
prosecutor or a commissioned officer of police.
The further
jurisdictional facts for the warrant are that the application must
set out (i) the offence alleged to have been committed
(which need
not be a Schedule 1 offence,) (ii) that the offence was committed
within the area of jurisdiction of the magistrate
or that the suspect
is known or is on reasonable grounds suspected to be within such area
of jurisdiction, and (iii) that from
information taken upon oath
there is a reasonable suspicion that the suspect has committed the
alleged offence.  If the fifth
jurisdictional fact is part of s
40(1) (b) it must also by parity of reasoning form part of s 43 but
there is no way in which the
wording of the section can be
manipulated to achieve this result.
[24] …
[25] …
[26] …
[27] …
[28] Once the
jurisdictional facts for an arrest, whether in terms of any paragraph
of s 40(1) or in terms of s 43 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 emphasized, is not obliged to effect an
arrest.  This was made clear by this court in relation to s 43
in
Groenewald v Minister of Justice
.”
[32] This legal position
is so important that it forms part of the Standing Orders for all
police officers.  Standing Order
(G) 341 subparagraph 3 reads as
follows:
“
3
Securing the attendance of an accused at the trial by other means
than arrest
(1)
There are various methods by which an
accused’s attendance at a trial may be secured.  Although
arrest is one of these
methods, it constitutes one of the most
drastic infringements of the rights of an individual and a member
should therefore regard
it as a last resort.
(2) It is impossible to
lay down hard and fast rules regarding the manner in which the
attendance of an accused at a trial should
be secured.  Each
case must be dealt with according to its own merits.  A member
must always exercise his or her discretion
in a proper manner when
deciding whether a suspect must be arrested or rather be dealt with
as provided for in subparagraph (3)”
(3) A member, even though
authorized by law should normally refrain from arresting a person if
–
(a) the attendance of the
person may be secured by means of a summons as provided for in
section 54
of the
Criminal Procedure Act, 1977
; or
(b) the member believes
on reasonable grounds that a magistrate’s court on convicting
such person of that offence, will not
impose a fine exceeding the
amount determined by the Minister from time to time by notice in the
Government Gazette, in which event
such member may hand to the
accused a written notice [J534] as a method of securing his or her
attendance in the magistrate’s
court in accordance with
section
56
of the
Criminal Procedure Act, 1977
.”
[33] It seems to me that
sergeant Mbuli left his office already determined to arrest the
plaintiff at all costs.  Even when
the plaintiff indicated to
her that he was paying maintenance and that he had proof of payments
on his desk, sergeant Mbuli did
not take that into consideration and
weigh her options.  Her evidence that had the magistrate’s
court still opened at
the time of the arrest she would have taken the
plaintiff to the magistrate to deal with the alleged proof of
payments is not helpful.
By that time it was too late because
the arrest had already been effected, all that remained was his
detention which was also a
foregone conclusion on the part of
sergeant Mbuli.  She did not explain in her evidence why she had
to arrest the plaintiff
that day knowing fully well that she would
have to detain the plaintiff overnight for the following day for the
very reason that
she could not take him to court after 14:00.
[34] At the very least
the evidence suggests that the arrest of the plaintiff was possibly
an elaborate well designed and carefully
executed plan to embarrass
the plaintiff possibly at the behest of the complainant in the
maintenance matter who incidentally is
a colleague of sergeant Mbuli
within the same cluster and who is known to her.  The plaintiff
being arrested in execution
of a warrant of arrest on a day in which
as female law enforcement officers from the various law enforcement
structures such as
SAPS, municipal police and traffic police had a
women’s month inspired operation is too much of a coincidence.
She
went to arrest the plaintiff with a very large number of female
officers from these groupings some of whom actually entered the

building, went all the way to the 4
th
floor where the
plaintiff worked.  I do not accept sergeant Mbuli’s
attempt at playing down her proximity to the complainant
in the
maintenance case.
[35] The plaintiff was
made an epicentre of this operation, handcuffed and walked to the
police vehicle.  This whole exercise
was clearly not only about
sergeant Mbuli executing her duties as a police officer but also
about embarrassing the plaintiff.   This
was not only a
women’s month celebration inspired operation but also an abuse
of police power using the important celebrations
for an unintended
purpose.  In the process she even forgot the obligation to
exercise her discretion properly which could
have resulted in her not
arresting the plaintiff but warning him to come to court the
following day, if she had applied her mind
to properly executing her
duties.
[36] It is worth
emphasizing that the plaintiff resides in East London and works in
the East London CBD not very far from Fleet
Street police station.
The vague reference to previous visits to the plaintiff’s place
of work even if they actually
happened, which is doubtful, did not
mean that the plaintiff must be arrested without more.  Even on
those days sergeant Mbuli
claims to have gone to the plaintiff’s
place of work and left messages, she could not say with whom she left
those messages.
She could have asked to speak to the
plaintiff’s superiors and left a message with them.  She
did not do any of that
which begs the question, did she ever go there
before and left those messages as she claims to have done?  The
evidence suggests
otherwise.
[37] Sergeant Mbuli’s
evidence shows that she never even considered how best to secure the
plaintiff’s attendance at
court other than by arresting him.
She acted in total disregard of the plaintiff’s rights in
circumstances in which
she had no reason to believe that the
plaintiff would not co-operate for she never investigated the
possibilities.  In the
result the plaintiff had to spend the
night in police cells when that was totally uncalled for.  She
seems to have taken into
consideration extraneous factors such as the
women’s month celebrations which played a huge role in how she
performed her
duties.
[38]
Clothed with state authority that could negate a citizen’s
constitutional rights police officers are in general expected
at all
times to act in a reasonable manner as explained comprehensively in
Associated
Provincial Picture Houses Ltd v Wednesburg Corporation
[4]
.
In that case Lord Greene MR said:
“
It
is true the discretion must be exercised reasonably.  Now what
does that mean? Lawyers familiar with the phraseology commonly
used
in relation to exercise of statutory discretions often use the word
“unreasonable” in a rather comprehensive sense.
It
has frequently been used and is frequently used as a general
description of the things that must not be done.  For instance,

a person entrusted with a discretion must, so to speak, direct
himself properly in law.  He must call his own attention to
the
matters which he is bound to consider.  He must exclude from his
consideration matters which are irrelevant to what he
has to
consider.  If he does not obey those rules, he may truly be
said, and often is said, to be acting unreasonably.”

Similarly, there may be something so absurd that no sensible person
could even dream that it lay within the powers of the authority.

Warrington LJ in
Short v Pool
Corporation
(1) gave the example of the
red–haired teacher, dismissed because she had red hair.
That is unreasonable in one sense.
In another sense it is
taking into consideration extraneous matters.  It is so
unreasonable it might almost be described as
being done in bad faith;
and in fact all these things run into one another.”
[39] Sergeant Mbuli
clearly did not apply her mind to whether or not it was necessary to
arrest and detain the plaintiff.
She operated on the basis that
the warrant of arrest directed her to arrest the plaintiff and
therefore she arrested him.
In so doing she ignored even the
Standing Orders which as indicated above, called upon her to think
and make an appropriate decision.
The large group of women
officers who thronged into the Road Accident Fund building was not
only an unnecessary show of force but
was also clearly an abuse of
police powers of arrest by arresting a man in circumstances in which
it ought to have been clear that
there was no need to arrest him.
The show of women power during a women’s month inspired
operation was in and of itself
an extraneous consideration to the
extent that it played a negative role in the arrest of the
plaintiff.
[40] The plaintiff had a
permanent employment as a claims’ handler at Road Accident
Fund.  He had a fixed place of residence
in which he had lived
with his wife and children for about three years and in East London
he had lived even longer.  That
the plaintiff had ignored
previous maintenance court summons issued and served on him by the
sheriff did not mean that he should
be arrested without consideration
of the relevant issues for the determination of whether or not
arresting him is appropriate in
the circumstances.  In any event
on her own evidence sergeant Mbuli was not aware of the summons which
had been ignored by
the plaintiff resulting in the warrant of arrest
being issued.  Her evidence was that she had gone to the
plaintiff’s
place of work on three previous occasions about the
warrant leaving messages.
[41] In the circumstances
sergeant Mbuli clearly did not exercise her discretion rationally.
I do not think that taking a
warrant and executing it by effecting an
arrest without applying her mind to the facts before her was an
exercise of the discretion.
Exercising a discretion includes
weighing all the options and choosing the best option in the
circumstances as dictated by the
facts.   The plaintiff was
unnecessarily humiliated and his dignity imperiled when he was made a
centre piece of those
celebrations.  All this renders the arrest
of the plaintiff unlawful because of the irrational exercise of the
discretionary
power or even the abuse of the powers vested in her as
a police officer.
[42] This brings me to
the consideration of the appropriate award of damages for the
unlawful arrest and detention, mental anguish,
discomfort and
humiliation.  At the risk of repetition it is necessary to recap
the evidence.  The plaintiff’s
case is that he was
humiliated among his colleagues at his place of work.  The
arrest was effected during the lunch hour at
the Road Accident Fund
building which is adjacent to the taxi rank.  The police who
went there to arrest him handcuffed him,
he was held by one officer
on his right hand side while another was holding him on his left hand
side.  Some police officers
who were evidently part of the
operation started singing a song
wathint’ abafazi wathint’
imbokodo
,
you strike a woman you strike a rock
.  He
was taken to a police vehicle and driven to the police station with
police sirens being turned on in a manner that was
akin to a scene
from a movie.
[43] On his arrival at
the police station he was processed and taken to a cell.  That
cell was filthy and the toilet was smelly
and very close to them in
the cell.  He could not sleep that night as other arrested
persons were brought in during the night.
The following morning
he was taken to court where he was released on warning.  This
whole incident affected his relationship
with his wife as he would
have visions of those female police officers when he tried to be
intimate with his wife.  His relationship
with his daughter was
also negatively affected by the whole episode as it deteriorated.
[44]
In
Zealand
v Minister of Justice and Constitutional Development and Another
[5]
Langa CJ had this to say:
“
[24]
There is another more important reason why this court should rule in
the applicant’s favour.  The Constitution enshrines
the
right to freedom and security of the person, including the right not
to be deprived of freedom arbitrarily or without just
cause, as well
as the founding value of freedom.  Accordingly, it was
sufficient for this case for the applicant simply to
plead that he
was unlawfully detained.  This he did.  The respondents
then bore the burden to justify the deprivation
of liberty, whatever
form it may have taken.
[25] This is not
something new in our law.  It has long been firmly established
in our common law that every interference with
physical liberty is
prima facie
unlawful.  Thus, once the claimant
establishes that an interference has occurred.  The burden falls
upon the person causing
that interference to establish a ground of
justification.  In
Minister van Wet en Orde v Matshoba,
the Supreme Court of appeal again affirmed that principle, and then
went on to consider exactly what must be averred by an applicant

complaining of unlawful detention.  In the absence of any
significant South African authority, Grosskopf JA found the law

concerning the
rei vindicatio
a useful analogy.  The
simple averment of the plaintiff’s ownership and the fact that
his or her property is held by
the defendant was sufficient in such
cases.  This led that court to conclude that, since the
common-law right to personal
freedom was far more fundamental than
ownership, it must be sufficient for a plaintiff who is in detention
simply to plead that
he or she is being held by the defendant.
There can be no doubt that this reasoning applies with equal, if not
greater, force
under the Constitution.”
[45] The defendant has
not been successful justifying the arrest and detention and therefore
the invasion of the plaintiff’s
right to dignity, freedom and
security of his person.  He must therefore be compensated for
the humiliating violation of his
constitutional rights to freedom,
security and dignity as well as the arbitrary detention for which
there was no justification.
The detention of the plaintiff
merely because he could not be taken to court due to the lateness of
the hour without any consideration
and weighing whether if he was
warned to come to court the following day he would not do so was in
itself an abuse of public power
in a manner that is contrary to its
intended purpose.
[46]
This principle was expressed as follows by Swain JA in
Wojiv
Minister of Police
[6]
:
“
[28]
The Constitution imposes a duty on the state and all of its organs
not to perform any act that infringes the entrenched rights
such as
the right to life, human dignity and freedom and security of the
person.  This is termed public law duty.
See
Carmichele v Minister of Safety & Security and Another
(Centre of Applied Legal Studies Intervening)
[2001] ZACC 22
;
2001 (4) SA 938
(CC)
para 44.  On the facts of this case Inspector Kuhn, a policeman
in the employ of the state, had a public law duty not
to violate Mr
Woji’s right to freedom, either by not opposing his application
for bail, or by placing all relevant and readily
available facts
before the magistrate.  A breach of this public law duty gives
rise to a private law breach of Mr Woji’s
right not to be
unlawfully detained which may be compensated by an award of damages.
There can be no reason to depart from
the general law of
accountability that the state is liable for the failure to perform
the duties imposed upon it by the Constitution,
unless there is a
compelling reason to deviate from the norm.  Mr Woji was
entitled to have his right to freedom protected
by the state.
In consequence, Inspector Kuhn’s omission to perform his public
duty was wrongful in private law terms.
See
Minister
of Safety & Security an Another v Carmichele
2004 (3) SA 305
(SCA) paras 34-38 and 43.”
[47]
The plaintiff was arrested in a humiliating and degrading manner.
He was frogmatched by a large group of female police
officers in
handcuffs and in the process he was made a public spectable in
violation of his inalienable right to dignity.
In
Minister
of Safety and Security v Tyulu
[7]
Bosielo AJA (as he then was) expressed the following sentiments which
explain the philosophical and legal reasoning and considerations
on
compensation that must inform cases like this one:
“
[26]
In the assessment of damages for unlawful arrest and detention it is
important to bear in mind that the primary purposes 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 attempt 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 the arbitrary depravation of personal
liberty is viewed in our law.  I
readily concede that it is
impossible to determine an award of damages of this kind of injuria
with any mathematical accuracy.
Although it is always helpful
to have regard to awards made in previous cases to serve as a guide,
such an approach, if slavishly
followed, can prove to be
treacherous.  The correct approach is to have regard to all the
facts of the particular case and
determine the quantum of the damages
on such facts.”
[48] A compensation of
R75 000.00 is in my view appropriate in the circumstances for the
unlawful arrest and detention, injury to
the plaintiff’s
dignity and the general violation of his constitutional rights.
[49] In the result the
following order will issue:
1. The defendant is
directed to pay to the plaintiff the sum of R75 000.00 as and
for damages in respect of unlawful arrest
and detention.
2. The defendant is
directed to pay interest on the amount of R75 000.00 to be
calculated at the prescribed rate of interest
from a date fourteen
(14) days after the date of judgment to date of payment.
3. The
defendant is directed to pay the plaintiff’s costs of suit
together with interest thereon, such interest to be calculated
at the
prescribed rate of interest from a date fourteen (14) days after
allocatur
to date of payment.
_________________________
M.S. JOLWANA
JUDGE OF THE HIGH
COURT
Appearances
Counsel for the
Applicant: L. VAN VUUREN
Instructed by: CINGA
NOHAJI ATTORNEYS
East London
Counsel for the
Respondent: L. BURGER
Instructed by: STATE
ATTORNEY
East
London
Heard on: 01 October 2019
Delivered
on: 26 November 2019
[1]
Criminal Procedure Act 51 of 1977
[2]
Bannatyne v Bannatyne 2003 (2) SA 363 (CC)
[3]
Minister
of safety & security v Sekhoto
and Another 2011 (1) SACR 315 (SCA)
[4]
Association
Provincial Picture Houses Ltd v Wednesburg Corporation
[1947] 1 KB 223
(CA) at 229
[5]
Zealand
v Minister of Constitutional Development and Another
[2008] ZACC 3
;
2008 (4) SA 458
at 468 (CC)
[6]
Woji v
Minister of Police
2015 (1) SACR 409
(SCA)
[7]
Minister
of Safety and Security v Tyulu
2009 (5) SA 85
(SCA)