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[2019] ZAECELLC 34
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Damise v Minister of Police (EL354/2018) [2019] ZAECELLC 34 (12 December 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
(EAST
LONDON CIRCUIT LOCAL DIVISION)
CASE
NO.: EL 354/2018
In
the matter between:
LUYOLO
DAMISE
Plaintiff
and
MINISTER
OF POLICE
Defendant
JUDGMENT
MBENENGE
JP
[1]
The plaintiff had gone to Kidd’s Beach Police Station to report
an accident
in which he had been involved whilst driving a motor
vehicle. The motor vehicle accident occurred two days prior to
the plaintiff’s
visit to the police station. He ended up
being detained by the police on that day. The detention spanned
approximately
two days, after which the plaintiff was released on
bail upon appearing in court.
[2]
This action is for recovery of damages against the defendant, sued on
a vicarious
liability basis, in the sum of R1 650 000.00,
made up as follows:
“
9.1
Unlawful arrest
R500 000.00
9.2
Unlawful detention
R450 000.00
9.3
Pain and suffering
R500 000.00
9.4
Contumelia
R200 000.00”
[3]
Besides specially pleading that there was non-compliance with section
3 of Act 40
of 2002
[1]
resulting from the prescribed notice not having been served on the
defendant timeously, the defendant pleaded that the plaintiff
was, in
terms of section 40(1)
[2]
of the
Criminal Procedure Act 51 of 1977
,
[3]
arrested by a peace officer entertaining a reasonable suspicion that
the plaintiff had committed murder. The information leading
to the
suspicion was gleaned from statements deposed to by persons who
witnessed the incident that culminated in the impugned arrest.
[4]
Despite the trite legal position to the contrary, the plea is supine
in relation to
why the detention was justified. It is a mere
bold denial, couched, in the relevant paragraph, as follows:
“
The defendant
denies that the plaintiff’s arrest and … subsequent
detention [were] either wrongful and/or unlawful.”
[4]
This
manner of pleading leaves much to be desired. A detention
constitutes a distinct and separate act from an arrest and
is, in and
by itself,
prima
facie
wrongful.
[5]
Even at pleading
stage, it is incumbent on the defendant to make allegations to
justify the detention.
[5]
Before the commencement of the hearing, counsel for the plaintiff, Ms
Mqobi
, successfully applied for condonation of the plaintiff’s
non-compliance with
section 3
of Act 40 of 2002. The action
thereupon proceeded to trial for a determination of both liability
and
quantum
, with counsel for the defendant, Mr
Swartbooi
,
accepting that the defendant bore the onus to justify the arrest and
the detention, and thus the duty to adduce evidence first.
[6]
Lieutenant Colonel
[6]
Harold
Nxafani, who was, during the time in question, the Station Commander
at Kidd’s Beach Police Station holding the rank
of Captain,
testified that he issued the instruction for one of his subordinates,
Sergeant Berashe, to detain the plaintiff and
that, in so doing, he
took into account:
(a)
information gleaned from statements enclosed in the relevant police
docket implicating the
plaintiff as having been part of a group that
was involved in a fight on the day in question; and
(b)
the fact that the plaintiff had pursued members of the other group
with the bakkie he was
driving and, in the course of the chase, ran
down one of them, fatally injuring him.
[7]
The explanation
Lt Col
Nxafani gave for the instruction that
the plaintiff be detained - and not arrested - was that “[
the
plaintiff
]
was already at the police station
.”
Lt
Col
Nxafani was also of the view that the case was not merely
about “
an accident
”, but a “
murder case
”,
adding:
“
It was a murder
case based on the evidence that was led or [what] Mr [Pala] [had]
asked from the crime scene was [whether] there
was a chase, [or
whether] it was a fight between the two groups. So these people
were chased with this bakkie and then the
bakkie [ran]- initially
from our side when we are dealing with the crime scene and …
we thought it was just a mere accident.
Then it was discovered
later, and also there was no report of any accident which occurred in
the area at that time. So
immediately we found out that the
bakkie has run over the body. That was the need for the
investigation, to investigate and
enquire on the accident. Because
if it was just an accident, you could just do the normal accident and
open up a culpable
homicide [case], but
in this case there was
evidence that this bakkie chased these people
. Also on the
previous day there was a complaint of fighting but we could not be
able to link it with the accident. It
was then after the
accident that this information was recovered that we linked the
complaint with which came through the previous
day, the fighting.”
(Own emphasis)
[8]
The following excerpt from the transcript of these proceedings,
capturing part of
the cross examination of the plaintiff, is of
significance:
“
MS
MQOBI
: The plaintiff’s version is that he went to the
police station to report an accident that had occurred because he had
run over the deceased when they were blocking his vehicle,
accidentally so. Can you dispute that?
MR NXAFANI
:
I don’t dispute that but I was having the problem … why
can
he run over a person and go to the police station on the
following day?”
[9]
Upon the closure of the defendant’s case, the plaintiff
testified. On
the day in question, whilst loading some
commuters onto his bakkie, he was pounced upon and slapped with an
open hand by somebody
who suddenly emerged where he was. When
enquiring as to what the matter was, his assailant once again slapped
him.
A fight between the plaintiff and the assailant ensued.
[10]
Thereafter, the plaintiff and the commuters were attacked by a group
of persons, one of whom
was the assailant who had slapped the
plaintiff. No details of how the attack was meted out were
given. Whilst the
plaintiff was escaping from the scene in the
bakkie, the group blocked his path of travel. In the course of
that, he ran
down a member of the other group. He eventually
escaped the wrath of the assailants and disappeared from the scene.
[11]
The incident occurred in the early hours of Sunday 25 October 2015.
Later that same day,
the plaintiff went to report the “
accident
”
at the Lloyd Police Station, but was referred to Kidd’s Beach
Police Station where he proceeded to in the afternoon
of the
following day, 26 October 2015.
[12]
On arrival at Kidd’s Beach Police Station, being in the company
of one Luyanda, the plaintiff
introduced himself to the police.
He then stated that he had come to report an accident
that had taken place
at Ncerha. The police said “
here
are these people of this green bakkie that had killed a child at
Ncerha
.” He was told to sit down. No one had
ever told him the police had been looking for him. It came as a
shock
for him to learn that somebody had died “
in that
accident
.”
[13]
The police caused the plaintiff and Luyanda to sit next to each other
and asked them to wait.
Thereafter, the police came back
informing Luyanda and the plaintiff they were being arrested.
Some “
rules were read
” in the plaintiff’s
hearing, with the police official concerned stating that he had been
sent to arrest him and that
he and Luyanda were in fact being
arrested.
[14]
The plaintiff further explained:
“
I also did not ask
why he is saying that I am being arrested. After he had read
what was on this paper he wrote something
on it and then he told me
to sign and I signed and gave him. Now he took me and there was
another guy that was handcuffed
on his feet. Now he took the
one side of the cuffs and he added me to this guy and locked me or
putting these cuffs on me.
We were told to wait for the van, we
then sat and waited for the van until it arrived. We were then
taken through to Fleet
Street Police Station. Now that police
official when we arrived at the police station he said to me that he
was asked to
take us – now that police official said that it is
not him that is arresting me, he was told to arrest me. So
therefore
I should not include him in whatever might happen after
this… we were then taken and we were detained in the cells.
I was therefore detained with this guy that I was handcuffed with
from the police station up until we reached Fleet Street Police
Station.”
[15]
Under cross-examination, the plaintiff said he knew he had run down
somebody at the scene on
the day in question. He, however,
could not stop to assess the situation because he was threatened by a
“
weapons
” wielding angry mob; his group comprised
mainly females who were just screaming. He therefore did not
reach out to
the person he had run down to establish her or his
condition. When afforded the opportunity to give his version of what
occurred
on the fateful day, the plaintiff elected to remain silent.
He is on record as having said he would make a statement “
with
[his]
legal adviser of
[his]
choice
.”
[16]
The court must now decide whether—
(a)
the plaintiff’s arrest was justified;
(b)
the ensuing detention of the plaintiff was justified; and
(c)
the amount of damages to be awarded the plaintiff.
[17]
By virtue of his position,
[7]
it
was permissible for
Lt
Col
Nxafani to instruct one of his subordinates to arrest the plaintiff
on condition that he (
Lt
Col
Nxafani) harboured a reasonable suspicion that the plaintiff had
committed an offence listed in Schedule 1 to the
Criminal Procedure
Act, in
this instance, murder.
[18]
In
Ndala
[8]
it was held that where a police official carries out the physical
part of an arrest on the command of another police official under
whom he serves, and who makes the requisite notification to him, it
is actually the superior who carries out the arrest and who
must
harbour the reasonable suspicion.
[9]
[19]
I am satisfied that
Lt Col
Nxafani did harbour a
reasonable suspicion that the plaintiff had committed murder. Based
on the information, to which
Lt Col
Nxafani was privy and
contained in the police docket, the plaintiff had chased members of
the other group at the scene with his
motor vehicle. It was never
disputed that there were statements in the police docket implicating
the plaintiff. The plaintiff
never bothered to follow up on
what eventually became of the person he had run down even after the
threatening atmosphere had waned.
He also did not proffer any
explanation in relation to why he did not proceed to any police
station immediately after the
accident had occurred, in circumstances
where he knew he had run down a person. I should also highlight
that the
Lt Col
did not have to consider whether the plaintiff
might indeed eventually be convicted of murder or, for that matter,
culpable homicide
which is also a Schedule 1 offence and a competent
verdict to a charge of murder. All he had to harbour is a
reasonable suspicion
of the commission of a Schedule 1 offence.
[20]
The parties made the arrest of the plaintiff common cause, leaving it
to the Court to determine whether the arrest
was justified. The
plaintiff’s testimony brought completeness to the process; he
says he was in fact placed under arrest
by a police official who said
he had been instructed to arrest him. This lent support to the
testimony of
Lt Col
Nxafani in a material respect.
[21]
I am also satisfied that the arrest was justified in terms of
section 40(1)(b)
of the
Criminal Procedure Act. To
hold otherwise,
would be to unnecessarily hamper the power of the police to arrest
without a warrant by creating extra limitations
not intended by the
legislature.
[10]
[22]
In
Raduvha
the Constitutional Court found that an “
arrest
and detention are separate legal processes. The fact that both
result in someone being deprived of his or her liberty,
does not make
them one legal process
.”
[11]
Whilst the arrest may be lawful, the detention may be unlawful.
It therefore remains to consider whether, in this instance,
the
detention was justified.
[23]
In the first place, regard being had to the fact that a
detention and an arrest are separate legal processes, the
defendant’s
plea lacked averments necessary to sustain a defence in relation to
the impugned detention. For that reason,
any evidence led in support
of the defence to the impugned detention was irrelevant. In any
event, and quite apart from this conclusion,
it remains to be seen
whether the detention was justified.
[24]
In
Mvu,
[12]
Willis J held that even where an arrest had been lawful, a police
officer had to apply his mind to the question of whether the
detention of a suspect was necessary at all. An arresting
officer should always consider avoiding detention either by releasing
the suspect on warning or on bail depending on the particular
circumstances of the particular case. In the instant matter,
Lt
Col
Nxafani did not testify to having applied his mind to the question of
whether the detention was necessary in order to secure the
attendance
of the plaintiff in court. The police official who detained the
plaintiff was not called to testify in relation to this.
In fact on
the plaintiff’s showing, the detention was effected purely on
the instructions of another police official.
All that
Lt
Col
Nxafani contented himself with was that further investigations had
yet to be conducted, which does not suffice, given the appropriate
test to be invoked before a detention can be effected. In any event,
there is a drought of information in relation to what remained
to be
investigated at the point the impugned detention was effected.
[25]
In all these circumstances, I am of the view that the defendant has
not discharged the onus to justify the
detention, with the result
that the detention was unlawful.
[26]
It remains for this Court to determine the
quantum
of damages to which the plaintiff is entitled.
Nel
[13]
and the cases cited therein with approval, provide guidance on the
exercise of discretion when
quantum
is being considered. In particular, it should be borne in mind
that the amount of award is not susceptible of precise calculation;
it is arrived at in the exercise of a broad discretion.
[27]
The plaintiff was detained from the afternoon of 26 October 2015,
and released from custody
when he appeared in court on 28
October 2015. There was no specificity in relation to the
precise times at which the plaintiff
was detained and released.
He was handcuffed together with Luyanda from Kidd’s Beach to
Fleet Street Police Station
where he was incarcerated. They
were supplied with blankets and matrasses. He described the blankets
as having been in such
a state that he could not even cover himself
therewith. The toilets were filthy, causing an unbearable
stench. Because
of the stench he did not partake of any food.
He described the experience as having been traumatic because he
was being detained
for the first time.
[28]
Taking into account awards previously made and bearing in mind that
each case must be considered
on its own merits, as against a flat
rate per day, a fair and reasonable amount in the circumstances of
this case is R40 000.
[29]
The plaintiff has attained substantial victory, and there is no
reason why costs should not follow
the result.
[30]
The following order is made:
1.
The defendant shall pay the plaintiff R40 000 as and for
damages arising from the plaintiff’s detention from 26 to 28
October 2015.
2.
The defendant shall pay interest on the amount referred to in
paragraph 1 above at the prescribed legal rate with effect from today
to date of payment.
3.
The defendant shall pay the costs of this action, such costs to
bear interest from a date 14 days of the Taxing Master’s
allocator
to date of payment.
S
M MBENENGE
JUDGE
PRESIDENT OF THE HIGH COURT
Counsel
for the plaintiff
:
T
Mqobi
Instructed
by
:
W
Mdlangazi Attorneys
EAST LONDON
Counsel
for the defendant
:
S J
Swartbooi
Instructed
by
: The
State Attorney
EAST LONDON
Date
heard
: 04 and
05 November 2019
Date
judgment delivered
: 12
December 2019
[1]
The Institution of Legal Proceedings against Certain Organs of State
Act, 2002 (Act 40 of 2002).
[2]
No specificity is provided in the defendant’s plea regarding
which of the 17 paragraphs in section (40)(1)(
a
)
–(
q
))
of the
Criminal Procedure Act 51 of 1977
is relied on.
[3]
The
Criminal Procedure Act 51 of 1977
.
[4]
Paragraph 4.4 of the defendant’s plea-over.
[5]
Raduvha
v Minister of Safety and Security
(CCT151/15)
[2016] ZACC 24
;
2016 (10) BCLR 1326
(CC);
2016 (2) SACR
540
(CC) (11 August 2016) at para 39 (
Raduvha
).
[6]
Lieutenant Colonel Harold Nxafani hereinafter conveniently referred
to as
Lt
Col
Nxafani.
[7]
At this time Lt Col Nxafani was Station Commander at Kidd’s
Beach Police Station, occupying the rank of Captain, which
qualifies
him to be “a peace officer” within the meaning and
contemplation of
section 40(1)
of the
Criminal Procedure Act
51 of
1977.
[8]
Minister
of Justice v Ndala
1956 (2) SA 777
(T) at 780.
[9]
See also
Bhika
v Minister of Justice and another
1965 (4) SA 399
(W), at 400G.
[10]
Duncan
v Minister of Law and Order
1984 (3) SA 460
(T) 466.
[11]
Raduvha.
[12]
Mvu v
Minister of Safety and Security and Another
2009 (2) SACR 291 (GSJ).
[13]
Nel v
Minister of Police
(CA 62/2017) [2018] ZAECGHC 1.