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[2018] ZAGPPHC 774
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Marope v Minister of Police (68732/2012) [2018] ZAGPPHC 774 (14 February 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
(1)
NOT
REPORTABLE
(2)
NOT OF
INTEREST TO OTHER JUDGES
(3)
REVISED
Case No. 68732/2012
14/2/2018
In the matter between:
MAROPE,
IKAGENG
SAMUEL
PLAINTIFF
And
MINISTER
OF
POLICE
DEFENDANT
JUDGMENT
MILLAR
AJ
1.
The
Plaintiff brought an action for damages against the defendant for
damages arising out of what was alleged to be his unlawful
arrest and
detention. The defendant admitted the arrest but placed in issue its
unlawfulness and that the plaintiff had suffered
any damages.
2.
It
was common cause that on 23 October 2010 and at the Grobler's Bridge
border post, between the Republic of South Africa and Botswana,
located in the Limpopo Province, the plaintiff was, while he was on
duty there as a serving police officer, arrested and thereafter
detained for a period of 5 days until his release on bail.
3.
Furthermore
that Isuzu truck with registration number ZBL 107 GP bore false
registration plates, had been stolen in Gauteng and
had been passed
through the departure checkpoint at the border, this despite the fact
that when it was subsequently returned and
checked, according to the
police "Standard Operating Procedure" - it was found to
have two sets of number plates, one
behind the other (front and back}
and that checking its' VIN (vehicle identity number also called
chassis number} on the computer
system had immediately revealed that
ZBL 107 GP was false and that the vehicle was stolen.
4.
In
respect of the evidence led five witnesses testified. The defendant
called four witnesses and the plaintiff one, to testify.
The first
witness was Sergeant Chauke ("Chauke"} who had effected the
arrest. He testified that he was attached to the
anti-corruption unit
in Polokwane. On the 22"d of October 2010 he and fellow officers
had been informed that they were to
take part in an operation at the
Grobler's Bridge border post. Information had been obtained that a
truck that had been stolen
in Gauteng was going to be taken across
the border at that border post and that a police official, Warrant
Officer Marope, the
plaintiff, was named as the person who would
facilitate this. He had travelled to the vicinity of the border post
with other officers
and they had waited there keeping a lookout for
the truck. When the truck did not appear, they had all gone home.
5.
Early
the next morning he had received a call that the truck was parked at
the border. He left his home to go there and, on the
way, had been
informed by surveillance at the border that the truck had passed
through to Botswana. He had called for assistance
on the radio and by
the time he had arrived at the border the truck was parked there. The
driver of the truck, Patrick Mashaba
("Mashaba") was also
there. He had gone to speak to Mashaba and asked him who had passed
the truck through to Botswana
and he had pointed to the plaintiff who
was standing nearby.
6.
He
had then gone to the plaintiff and asked him to accompany him. He
informed the plaintiff that he was under arrest and had disarmed
him
and then taken him to his vehicle. He testified that he had not
handcuffed the plaintiff when he arrested him as it would have
been
in full view of the public and so he waited until he was in the
vehicle before he did so.
7.
He
drove the plaintiff to Tom Burke Police Station where a docket was
opened, and the plaintiff was formally taken into custody.
8.
Lieutenant
Colonel Phudufudu testified in regard to the standard operating
procedure. His evidence was largely common cause. He
testified that
having regard to the documentation presented at the checkpoint for
the truck, that it should never have been passed.
His evidence was
that in particular the letter purporting to be from the owner of the
truck authorizing Patrick Mashaba to travel
with the truck to
Zimbabwe and Mozambique would have raised a concern and he should
have been asked to obtain a further letter
or been advised to cross
the border into Zimbabwe. The crux of his evidence was that with the
documentation that had been presented
for the truck, if the standard
operating procedure had been followed, the truck would not have been
allowed to pass.
9.
The
defendant also called Constable Sekgobane ("Sekgobane"). He
testified that on the day in question he had reported
for duty to the
Grobler's Bridge border post where he was stationed. A parade was
held at 07H00. Although he was attached to the
same detail as the
plaintiff which was to check vehicles and persons departing the
Republic, he had been instructed that morning
by his commander
Warrant Officer Shingange ("Shingange") to drive fellow
officers who had just finished their shift,
home. He had done so and
as he was arriving back at a 08H00, he had been instructed to go with
the plaintiff to fetch a truck that
had been incorrectly passed
through the border. They had gone to the Botswana side but the truck,
an Isuzu was already gone. They
had then driven into Botswana and
after about 10 km they had located it at a filling station. The
driver, Patrick Mashaba was in
the process of filling the truck with
diesel. They told him there was an issue with the truck and that he
should return with them
to the Republic.
10.
Sekgobane
had then driven the truck back while Mashaba had accompanied the
plaintiff in the police vehicle. When he had arrived
back he had
parked the truck and gone about his duties. Later that day he had
been called in by Shingange and asked whether he
had passed the truck
through and he had informed him that he had been taking officers home
when the truck had gone through.
11.
Constable
Ramotebele ("Ramotebele") corroborated the evidence of
Chauke as to what had transpired on the 22
nd
.
He had gone to Tom Burke Police Station on the 23
rd
and had found the truck there as well as Marope and Mashaba. He had
spoken to Mashaba who had implicated Marope. He had thereafter
charged Mashaba and his passenger Hamish Dlamini ("Dlamini").
Mashaba had told him that Dlamini was just a person he
had given a
lift and the charges against him had been subsequently been
withdrawn. Mashaba was subsequently convicted of being
in possession
of stolen property. He testified that he had investigated the case
and had even come to Gauteng to take statements
from the owner of the
truck and the person who had been driving it when it had been stolen.
The charges against Marope had subsequently
been withdrawn.
12.
The
plaintiff, a Warrant Officer who had served for 17 years, testified
that he had arrived for work on the 23
rd
October 2010 and attended the parade. He had gone to the departure
checkpoint but had not inspected any vehicles or pedestrians
that had
passed. He had received a message from Shingange that an Isuzu truck
had been passed that had problems and that it should
be found. He
went to Sekgobane and they had gone to the Botswana side only to find
the truck had gone. They had driven into Botswana
to look for the
truck and had come upon it at a filling station about 10km from the
border. They had spoken to the driver Mashaba
and had told him he
needed to return with them. Sekgobane had driven the truck back and
he brought Mashaba back with him. When
they got back the truck had
been parked and he had handed Mashaba over at the CSC (Community
Service Centre). He had then gone
back to his duties.
13.
Around
midday, he was called to the CSC where he met Chauke and a Colonel.
He was asked to sit down and then disarmed, arrested
and handcuffed.
He was told he was being arrested for letting the truck pass and that
Mashaba had said he had been the one that
had let it pass.
14.
He
was taken by Chauke to Tom Burke Police Station where he was charged.
He was kept in the waiting area for some time and then,
in full
uniform, taken to the cells at approximately 18H00. He was kept in
the cells until Monday morning when he was taken to
court. He had
managed to phone his family on Sunday and had arranged for them to
bring him a change of clothes. He changed before
court and did not
appear in his uniform. The case was remanded to the Thursday for bail
and he was then granted bail. He paid the
bail and was released.
15.
The
plaintiff testified that he had spent a total of 5 nights in the
cells. The other inmates had been cruel and abusive to him,
particularly as he was wearing his uniform and had made disparaging
remarks about him. He was prevented from eating as the other
inmates
took his food from him. He was degraded and humiliated by them and
beaten on the back while having to simulate riding a
bicycle. The
plaintiff thereafter appeared in court on a number of occasions until
25 March 2012 when the charges against him were
withdrawn. Although
he returned to work, he found it impossible to gain the trust of his
colleagues and so he resigned in October
2012.
16.
The
evidence led by both parties, was given by the respective witnesses
who, with the exception of Ramotebele, testified through
an
interpreter, acceptable. The versions were for the most part
consistent , save for the difference between the plaintiff and
Chauke
as to where he was actually arrested. This difference is in my view
immaterial. This case can be decided on the whole of
the evidence led
by the parties and it is not necessary for me to prefer one over the
other.
17.
It
is common cause that the plaintiff was arrested without a warrant.
Section 40(1)(b)
of the
Criminal Procedure Act 51 of 1977
provides
that, "a
peace officer may
without warrant arrest any person whom he reasonably suspects of
having committed an offence referred to in Schedule
1".
18.
It
was held by the Supreme Court of Appeal in
Duncan
v Minister of Law and Order
[1]
that
"The
so-called jurisdictional facts which must exist before the power
conferred by s 40(1)(b) of the present Act may be invoked,
are as
follows:
(1)
the arrestor must be
a
peace officer;
(2)
the arrestor must entertain
a
suspicion;
(3)
the suspicion must be that the
suspect committed an offence referred to in schedule 1;
(4)
the suspicion must rest on
reasonable grounds."
19. The
test to be applied is an objective one
[2]
.
It is not in issue that Chauke is a peace officer as defined in the
Act nor that given the information furnished to him on the
22
nd
together with Mashaba's pointing out of the plaintiff, that he
entertained a suspicion of the commission of an offence contemplated
in Schedule 1.
20.
What is in issue is whether, objectively, Chauke's suspicion rested
on reasonable
grounds.
21.
In
Mabona and
Another v Minister of Law and Order
[3]
it was stated
that
" The
test whether
a
suspicion is
reasonably entertained within the meaning of s 40(1)(b) is objective
(S v Nel
and Another 1980(4) SA 28 (E) at 33H)
.Would
a
reasonable
man in the second defendant's position and possessed of the
same
information have
considered that there were good and sufficient grounds for suspecting
that the plaintiffs were guilty of conspiracy
to commit robbery or
possession of stolen property knowing it to have been stolen? It
seems to me that in evaluating his information,
a
reasonable man
would bear in mind that the section authorises drastic police action.
It authorises an arrest on the strength of
a
suspicion and
without the need to swear out
a
warrant, ie
something which otherwise would be an invasion of private rights and
personal liberty. The reasonable man will therefore
analyse and
assess the quality of the information at his disposal critically, and
he will not accept it lightly or without checking
it where it can be
checked. It is only after an examination of this kind that he will
allow himself to entertain
a
suspicion which
will justify an arrest. This is not to say that the information at
his disposal must be of sufficiently high quality
and cogency to
engender in him
a
conviction that
the suspect is in fact guilty. The section requires suspicion not
certainty. However the suspicion must be based
on solid grounds.
Otherwise it will be flighty or arbitrary, and not a reasonable
suspicion."
22.
The onus of proving the lawfulness of the arrest in a matter such as
the present one
lies with the defendant.
[4]
23.
While the evidence of-Chauke shows clearly that he harbored a
suspicion, this was
based exclusively on the information furnished on
the 22nd and on the pointing out of the plaintiff by Mashaba. It
seems to me
that based solely on this evidence that further enquiry
by Chauke was reasonably necessary in the circumstances. The fact
that
the plaintiff had been one of the officers to go and fetch the
truck in Botswana and bring it and Mashaba back ought to have alerted
him to the fact that further enquiry was necessary.
24.
Besides the evidence of Sekgobane that he had been called in by
Shingange, there was
no evidence that any of the other police
officers who had been stationed at the departure point were
questioned. Furthermore, there
was no attempt to verify on the
computer system whether the plaintiff had indeed been checking
vehicles or whether anyone else
had. Neither Chauke nor Ramotebele
interviewed Hamish Dlamini, an independent witness who was in custody
and available to them
in order to ascertain whether the plaintiff had
indeed been the one to pass the truck through the departure point and
no statement
was taken from Mashaba to confirm his pointing out of
the plaintiff.
25.
In the circumstances, I find that Chauke could and should have
conducted further enquiries
before his summary arrest of the
plaintiff and that accordingly the arrest and detention of the
plaintiff were unlawful. During
argument of this matter, defendant's
counsel formally conceded liability and in the circumstances no order
need be made in this
regard.
26.
In regard to the quantum of damages to be awarded, the approach to be
followed is
set out in
Mbanjwa
v Minister of Police
[5]
where it was
stated:
"[39]
The Supreme Court of
Appeal has, however, warned that
a
process of
comparison should not be
a
meticulous
examination of awards that interferes with the court's general
discretion in awarding
a
fair amount of
damages. [See: Minister of Safety and Security v Seymour
2006 (6) SA
320
(SCA).]
[40]
An award should adequately compensate
a
claimant for the
deprivation of personal liberty and freedom and the attendant mental
anguish and distress. [See: Minister of Safety
and Security v Tyulu
2009 (5) SA 85
(SCA).]
[41]
The award should, however, also be fair to the defendant and should
not be the product of an
overly emotional response by the court. No
amount of money will compensate the plaintiff for what he has lost."
27. I
have considered awards made in other cases
[6]
.
A distinguishing feature of the present case is that the plaintiff
was a police officer who besides being incarcerated in uniform,
had
been previously stationed at the station concerned. This must
certainly have added to the humiliation felt by him.
28.
While awards in cases where the arrest and detention of the party was
found to be
without any justification, seem to be higher than those
where there was a justification, there does not seem to me to be a
difference
in principle. Once the deprivation is found to be
unlawful, the determination of the quantum of damages must be made
taking all
of the circumstances of the particular case into account.
29.
In my view a fair quantification of the damages suffered by the
plaintiff for the
unlawful arrest, deprivation of his freedom,
humiliation and degradation, pain and suffering is the sum of R 275
000,00. I find
that the plaintiff suffered such damages from the time
of the arrest and due to the composite and ongoing nature of the
arrest
and detention, it would be inappropriate to arbitrarily
apportion a specified amount for each of the specific heads of
damage.
30.
Given the nature of the plaintiff's claim and the circumstances
giving rise to it,
I am of the view that the claim was wisely brought
before this court and in the circumstances, intend to make the costs
order that
I do.
31.
It is ordered:
31.1
The defendant is ordered to pay to the plaintiff the sum of R275
000,00;
32.2
The defendant is ordered to pay interest at the prescribed rate a
tempore mora from date of this
order to date of payment, both days
inclusive;
33.3
The defendant is to pay the plaintiff's costs of suit on the scale as
between party and party.
A MILLAR
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
HEARD
ON:
12,13 & 14 FEBRUARY 2018
JUDGMENT
DELIVERED ON:
14 FEBRUARY
2018
COUNSEL
FOR THE PLAINTIFF:
ADV S MANGOLELE
INSTRUCTED
BY:
CHEUEINCORPORATED
REFERENCE:
MR CHEUE
COUNSEL
FOR THE DEFENDANT : ADV D MOHLAMONYANE
INSTRUCTED
BY:
THE STATE ATTORNEY - PRETORIA
REFERENCE:
MR MASHABELA
[1]
1986 (2) SA 805
(A) at 818 G-H
[2]
Duncan supra at 814 D-E where it was stated
" it seems clear
that the test is not whether
a
policeman believes that he has
reason to suspect, but whether, on an objective approach he in fact
has reasonable grounds for
his
suspicion" ;
see also
Mvu v Minister of Safety and Security and Another 2009 (2) SACR 291
(GSJ)
[3]
1988 (2) SA 654
(SE) at 658 E-H
[4]
Minister
of Law and Order v Hurley
1986 (3) SA 568
(A) at 589 E-F; Minister
van Wet en Orde v Matshoba 1990 (1) SA280 (A).
[5]
An unreported decision (17447/2008) in this Division delivered on 5
April 2017
[6]
See for example The Quantum of Damages in Bodily and Fatal Injury
Cases, Volume vii ,Corbett & Honey, Juta 2014 and in particular
Hendricks v Minister of Police K6-152 at paragraph 11 where
comparative awards in 2015 values were set out.