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[2018] ZAGPPHC 472
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Latchman and Another v Minister of Police (30689/2011) [2018] ZAGPPHC 472 (20 March 2018)
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH
AFRICA
GAUTENG DIVISION, PRETORIA
CASE
NUMBER: 30689/2011
20/3/2018
In
the matter between:
NUNDKISSOON
LATCHMAN
1
st
Plaintiff
AADIT
KUMAR (JASON)
LATCHMAN
2
nd
Plaintiff
and
THE
MINISTER OF
POLICE
Defendant
JUDGMENT
HATTINGH
AJ
EVIDENCE
PRESENTED
[1].
At the start of the hearing the defendant admitted the identity of
both the plaintiffs
as the persons that was detained on the 24
th
December 2008 at 14h00.
[2].
It was also admitted that the 1st plaintiff remained in custody until
the 25t h December
2008 and was released at 13h45.
[3].
The 2nd plaintiff was released to his father on the 25
th
December 2008 at 9h20.
[4].
At the start of the trial the plaintiffs abandoned claim 2 of their
particulars of claim
and only proceeded with claim 1 in terms of
unlawful arrest.
[5].
The defendant carried the
onus
to begin, but for practical
reasons the plaintiffs testified first.
[6].
The 1
st
plaintiff testified under oath. He testified that
he was from Newcastle and was invited by a close friend, Mr Feng Chu
Yeh, to
accompany him and three Chinese ladies to Cape Town. The 1
st
plaintiff and another driver drove the vehicle down to Cape Town. In
the Cambi were seven people. It was Mr Yeh, three ladies,
a driver
and the 1
st
and 2
nd
plaintiffs.
[7].
The 1st plaintiff took the 2
nd
plaintiff with him because
it would be a holiday for his nephew and it would be all paid for.
[8].
On the 24
th
December 2008 the whole group drove to Hout
Bay. The reason why they went to Hout Bay was to go shopping. Whilst
there Mr Yeh purchased
fresh fish. Mr Yeh told the 1
st
plaintiff hat someone told him about another place where there is
fresh fish.
[9].
At a specific house, Mr Yeh went in and bought seafood there and they
brought ice and we
were just touring through Hout Bay.
[10]. At some
point they were pulled over by the police. The police asked the s1t
plaintiff for his Identity Document
and drivers license. They were
all requested to step out of the vehicle. There were two security
vans and a police vehicle.
[11]. The police
searched the vehicle but gave no reasons for the search and they also
did not have a search warrant.
They opened a few packets/bags and
asked the s1t plaintiff to identify the items. 1st plaintiff told the
police that he was only
the driver of the vehicle.
[12]. The 1
st
plaintiff testified that he trusted Mr Yeh. He testified that there
was 1 (one) bag with frozen seafood. He only realised on opening
the
bag that it was abalone. He said he told the police that the seafood
belongs to Mr Yeh but the policeman said they have to
arrest
everyone. Mr Yeh then told the police that he bought the abalone but
the police did not want to listen and arrested them
all.
[13]. He
testified that they were taken to the police station where the Combi
was confiscated. All their belongings
were taken, luggage, food,
cellphones and wallets. The items were all entered into a SAP13
register.
[14]. Mr Yeh
again pleaded with the police that the seafood belonged to him. They
were all arrested. The 1st plaintiff
told the police that he would
take them to the place where the seafood was purchased.
[15]. He
testified that they all went back to the place where the seafood was
purchased. The police followed them
there. They drove past the shop
and stopped at a remote place. The police spoke to other police over
the radio and told them it
is too dangerous to arrest those people.
After that they were all taken back to the police station. They were
all detained.
[16]. He
testified how all seven of them were kept in the same holding cell.
In the cell was also other detained
people. He testified they were
arrested before their rights were explained. He testified that
another policeman arrived and told
Mr Buchler, the person that
arrested them, to take the little boy (2
nd
plaintiff) out
of the cell. Buchler told the other policeman that he was still busy
with the documentation. The policeman argued
about why they were
arrested. Mr Buchler called them individually to the glass to sign
papers.
[17]. Mr Buchler
then explained to us that we were arrested for abalone and that we
have a right to an attorney
and to apply for bail.
[18]. The 1
st
plaintiff testified that he was allowed to phone his brother ,the
father of the 2
nd
plaintiff. His brother informed him that
he was on his way to Cape Town to fetch his son.
[19]. He
testified that he was placed in a cell with the 2nd plaintiff that
was at that stage only 8 (eight) years
old and physically
handicapped. They were given blankets but the blankets were infested
with fleas and bugs. He testified how he
kept the child the whole
night on his lap.
[20]. The next
morning a policewoman arrived and asked what a boy was doing in the
cell. She fetched the key,
took the 2nd plaintiff out and kept him
with her. The father of the 2nd plaintiff arrived and left with the
2
nd
plaintiff.
[21]. On the
26
th
December 2008 the rest of them were still in the
cells and the 1
st
plaintiff's brother was looking for an
attorney to represent them in court. An attorney was found and they
were all released on
police bail. The Cambi was released to them and
they went back to the hotel. The next day (Monday) they went to
Wineberg Magistrate's
Court. They did not go into court but was only
informed by their attorney that all the charges were withdrawn
against them.
[22]. The 1
st
plaintiff further testified about his nephew's physical impairment
and having a deformed right leg and how he made a prosthesis
for his
nephew to assist him to walk.
[23]. The 1
st
plaintiff further testified about the filthy state of the toilet and
that it was clogged. They received no mattress. He testified
about
how scared the 2
nd
plaintiff was about being arrested and
locked up. He cried in the cell. He further testified that it was the
first time the 2
nd
plaintiff was alone with him without
his parents being present.
[24]. Under
cross examination the 1
st
plaintiff testified that Mr Yeh
was conversant in English. The 1
st
plaintiff denied that
he acted as a translator for Mr Yeh in all the negotiations. He
further testified that he never saw abalone
before and he knows it as
perlemoen. He further testified that Mr Yeh did not tell him what he
was going to buy. He again confirmed
that Mr Yeh told the police
during the search and at the police station that the abalone belonged
to him.
[25] It
was stated to the 1
st
plaintiff that Buchler will come and
testify that when the Combi was pulled over Mr Buchler told the 1st
plaintiff that he believe
there was perlemoen in the vehicle. This
was denied by the 1
st
plaintiff. He further testified that
Buchler told him that he was responsible and he must be present
during the search. He further
stated that he was called into the
Combi and the bag containing the abalone was shown to him and he told
the police that Mr Yeh
was the owner and Buchler opened the bags. He
further told Buchler that he did not know that it was illegal to
process abalone.
[26]. It was put
to the 1st plaintiff that it is Buchler's version that the 2
nd
plaintiff was kept in the victims support room. It was a carpeted
room with toys. 1
st
Plaintiff again confirmed that the 2
nd
plaintiff was in the cell with him and only the next morning a
policewoman saw the 2
nd
plaintiff in the cells and said
the child is not allowed to be there. The 1s t plaintiff stated that
Buchler lied and that the
2
nd
plaintiff was only taken
Christmas morning by a female policewoman.
[27]. The 1
st
plaintiff confirmed that the 2
nd
plaintiff was released to
his father on Christmas day at approximately 9h00.
[28]. Thereafter
the 2
nd
plaintiff testified. He testified about the trip
to Cape Town. How they were stopped by the police. How the police
scolded his
uncle (1
st
plaintfif). He further testified
how he had to write his name on a piece of paper. He was shown a
Notice of Rights in terms of
the Constitution (section 35 of Act 108
of 1996). On the form it is stated:
"You are detained for the
following reason: possession of abalone".
This form clearly
on numerous places state that it relates to people detained. At the
bottom of the document above the inscription:
"Signature/thumbprint
of detainee",
is the name Jason. The 2
nd
plaintiff confirmed that is was his signature.
[29]. He
confirmed that the blankets were dirty and full of bugs. He testified
about the bites and itches and
how he sat on his uncle's lap. He
further testified that as a consequence of the arrest and detention
he has a fear of bugs and
public toilets. He also doesn't want to be
near policeman. He can still remember that Christmas and a policeman
saying to him:
"Enjoy your night in jail with bugs".
[30]. Mr Buchler
testified how he and two other policeman pulled over the Cambi and he
found frozen abalone in
a bag under the back seat of the Cambi. He
further testified how Mr Yeh told him that it was his abalone. He
further testified
how they went to the house of the smuggler but did
not go in. Strangely enough Mr Buchler testified that the 2
nd
plaintiff was never arrested. He testified that he decided not to
take the 2
nd
plaintiff to Jameshouse, a place of safety,
because the kids there were rough. He kept the 2nd plaintiff in the
victims support
room where there was a carpet, bed duvet and a proper
toilet. He further denied that the cells were dirty. He testified
that the
cells are cleaned every morning and on the day in question
there was nobody before them in the cells. He testified that he was
not sure if there were mattresses.
[31]. Mr Buchler
denied that the 1
st
plaintiff was arrested and stated that
he was only in safekeeping. He further confirmed under
cross-examination that possession
of abalone is a Schedule 1 offence.
Mr Buchler further admitted that he knows the person from whom Mr Yeh
purchased the said abalone.
He is Jerome Solomon and a well-known
smuggler.
[32]. Mr Buchler
admitted under re-examination that Mr Yeh admitted to possession of
the abalone. He testified
that a warrant officer and higher in rank
can grant police bail. He further stated that he had to do all the
paperwork before anyone
can be released on police bail. He had to
investigate the addresses, take fingerprints and do warning
statements.
[33]. A
policewoman by the name of Tania Lesch testified on behalf of the
defendant. She primarily testified about
how children should be
treated in a police station. She testified about the implementation
of the new Children's Act of 2017 and
how that changed procedures.
[34]. the court
posed a question to her asking if it would be required to take a
warning statement from a minor
child that is not detained. Her answer
was no. The only reasonable conclusion that the court can reach is
that the 2
nd
plaintiff was therefor arrested.
THE ARRESTING OFFICER'S AVERMENT
THAT THE 2
ND
PLAINTIFF WAS NEVER DETAINED AND/OR ARRESTED.
[35]. During the
viva voce
evidence of Mr Stefanus Petrus Buchler (previously
an inspector with force number 0805603-0 and stationed at SAPS Hout
Bay) he testified
that the 2
nd
plaintiff was never
arrested. This contention must be corroborated by all the evidence as
a whole, including documentary evidence.
[36]. Mr Buchler
was under cross-examination confronted with his A1 statement, deposed
to on the 24
th
December 2008 at 16h20. He confirmed to the
correctness of the affidavit including the contents thereof. It is of
significance
that paragraph 5 of the said statement reads as follows:
"I then arrested all
the passangers for possession of abalone and took them to SAPS Hout
Bay to be detained. They were 3X adult
females, 3X adult men and 1X
minor child."
and paragraph 6:
"The abalone was handed
in the SAP 13fl23/08, and the V W Cambi SAP 13fl24/08. Sea Fisheries
was contacted to seal the abalone
bag nr 001184."
and paragraph 7:
"The one suspect told
me that he bought the abalone from a man in harbour.
I took him to show me the
address. At the address I recognise the house as Jerome Solomon's
house and it is 4 Duiker Str, Hout Bay.
The house is known as a
smuggling house."
[37]. It is
clear from the above passage that even the minor child, 2
nd
plaintiff, was indeed arrested. It is furthermore clear that one male
person accepted responsibility for the possession of the
abalone.
This is furthermore consistent with the evidence of the 1
st
plaintiff, and that the said person was Mr Feng Chu Yeh. It is
furthermore consistent with the fact that he even showed, Mr Buchler
where the abalone was purchased.
[38]. It is
clear that from the moment that Mr Feng Chu Yeh admitted to the said
possession of the abalone there
existed no legitimate basis for the
continued detention of the other occupants of the vehicle. The court
inquired from Mr Buchler
why Mr Feng Chu Yeh was not taken for a
confession and he only said that there was no police officer with the
required rank at
the police station. The court finds this excuse
baseless. The least Mr Buchler could have done at that stage was to
grant police
bail to the rest of the occupants of the Combi and made
such bail subject to the condition that they remain at the hotel. He
however
opted to detain all of them over Christmas. His further
excuse was that there was nobody which could grant police bail. It is
my
understanding that there must be at all relevant times an officer
in charge of any station with the rank of at least a captain.
[39]. The
following document that was accepted by the court as evidence was a
Notice of Rights in terms of the
Constitution (section 35 of Act 108
of 1996). This document clearly demonstrate that the person is
detained for possession of abalone.
It furthermore explain all the
constitutional rights afforded to arrested and/or detained persons.
It is clear from the standard
form that paragraph 1 & 2 refers to
detained persons and paragraph 3 refers to arrested persons. The
certificate by detainee
contains the following information:
“
Jason Latchman (8
years). He was warned in English by lnsp Buchler on 2008-12-24 at
14:30.”
[40]. The
document was clearly signed by the 2nd plaintiff.
[41]. The A2
statement by Inspector Jacobus Barthlomeus Lourens also corroborates
the statement of Mr Buchler
that the chinese male admitted that it
was his abalone.
[42]. It is
furthermore clear that everyone exclude the 2
nd
plaintiff,
that was already released to his father, received police bail as per
J398. The said bail was granted on the 25
th
December 2008.
The court fails to understand, based on the information contained in
these documents, why everyone could not have
been released on police
bail on the first day being 24 December 2008. All the information
contained in these documents were readily
available on the 24
th
December 2008.
[43]. Another
document of importance was an extract from the Investigation Diary of
Mr Buchler. There is an entry
dated 08-12-24@ 16:30 that reads as
follows:
"1) FIC as per A1
2)
Suspects
1)
Feng-Chu Yeh
2)
Yuge Ding
3)
Guoxian Zhang
4)
Chun-Khei Wu
5)
Lucas Zakhele Shabalala
6)
Nandkissoon Latchman
7)
Jason Latchman
(8yrs)"
(emphasis added)
This entry clearly indicate that
the child was also a suspect.
[44]. There was
also the following entry in an Occurrence Book dated Wednesday 2008-
12-24 under number 1317.
The time is illegible, but entry number 7)
reads as follows:
“
7
Jason
Latchman (8), SAP 14fi3/12/2008 SAP 14 A/ copy minor child,
special
arrangements being made to 'place in social care'
.
”
[45]. It is
clear from the evidence presented that nothing further was done to
place the 2
nd
plaintiff in social care.
[46]. It is
clear from the evidence
viva voce,
statements and other
documentary evidence that the only logical conclusion to which this
court can come to is that the 2
nd
plaintiff was arrested.
LEGAL
PRINCIPLES PERTAINING TO UNLAWFUL ARR
E
ST AND DETENTION\
[47]. It is
clear in law that the defendant bears the onus to establish the
lawfulness of both the arrest and
the detention on a balance of
probabitliies. Under common law, see
Minister of Law and Order &
Others v Hurley & Another,
1986 (3) SA 568
(A) 589 E - F
and
Minister van Wet & Orde v Mtshoba,
1990 (1) SA 280
(A) 284 E -
H and 286 B - C.
Both cases confirm that the action is based on
an interference with the liberty of the individual. In relation to
the constitutional
infraction of Section 12(1)(a) see
Zeeland v
Minister of Justice and Constitutional Development & Another,
[2008] ZACC 3
;
2008 (4) SA 458
(CC), at paragraphs 24
and
25
and
35,
which identifies the claims as based on the unreasonable and
unjustifiable infringement of an individual's right not to be
arbitrary
deprived of freedom or to be so deprived without just
cause. In Zeeland the court also stated that the defendant bears the
burden
to justify the deprivation of liberty, whatever form it might
have taken.
[48]. In order
to escape liability from wrongful arrest and detention a peace
officer effecting an arrest without
a warrant must fall squarely
within the provisions of
Section 40(1)
of the
Criminal Procedure Act
51 of 1977
. The relevant provisions of the section for the purposes
of this act are:
"(1)
A peace officer may without
a
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.,,
[49]. From the
moment that Mr Feng Chu Yeh accepted guilt in terms of the abalone
found in a plastic bag frozen
and +/- 5 (five) kg the defendant had
his culprit. There was no explanation that made any sense why Mr Feng
Chu Yeh was not there
and then taken to make a formal confession. It
is furthermore clear that statements should have been obtained from
other occupants
as witnesses. None of this was done and during the
trial it became clear, that up to the date of the hearing of this
matter, even
Mr Feng Chu Yeh came scot-free.
[50]. Police
bail could have been readily obtained on the first day before a duty
station commander. The witness,
Mr Buchler's argument that there was
no person at the
police
station to grant police bail does not hold true as there must at all
times be such a person at the police station.
[51]. In this
regard, I endorse the sentiment expressed by Borchers AJ in
Van
Rensburg v City of Johannesburg 2009 (1) SACR (W) 34
who referred
to the irony that exists where the very persons who are engaged to
protect citizens actually invade their rights.
[52]. It is
clear that Mr Buchler, the arresting officer, did not exercise his
discretion rationally. If a discretion
was indeed exercised, then it
was not rational in the case of both the plaintiffs.
[53]. It is
clear from the conspectus of the evidence before the court that Mr
Buchler did not exercise his discretion
rationally and that if he did
exercise it rationally both the plaintiffs would have received police
bail shortly after their arrests.
The court finds further, that from
the totality of all the evidence, that the minor child, 2nd
plaintiff, was indeed arrested.
[54]. The court
now turns to damages. The approach to the assessment of damages for
wrongful arrest was summarized
in
Ntshingana v Minister of safety
and Security, Unreported case no 1639/01, ECO,
14.10.2013 as
follows:
"The satisfaction in
damages to which
a
plaintiff
is entitled falls to be considered on the basis of the extent and
nature of the violation of his personality. As no fixed
or sliding
scale exists for the computation of such damages, the court
is
required
to make an estimate ex aequo et bono. The authors of Visser and
Potgieter's Law of damages 2
nd
Edition, 475 have extracted from our
case
law
factors which can play a role in the exercise:
'The circumstances under
which the deprivation of liberty took place, the presence or absence
of improper motive or (malice) on
the part of the defendant, the
harsh conduct of the defendant, the duration and nature of the
confinement of the deprivation of
liberty, the status, standing, age
and health of the plaintiff, the extent of the publicity given to the
deprivation of liberty;
The presence or absence of an apology or
satisfactory explanation of the events by the defendant, awards in
previous comparable
cases, the fact that in addition to physical
freedom, other personality interests such as honour and good name
have been infringed,
the high value of the right to physical liberty;
the effect of inflation, and the fact that the actual inuriarem also
has a punitive
function'.”
[55]. This court
takes all the above mentioned factors in consideration but more
specifically the tender age of
the 2
nd
plaintiff in this
matter coupled with his physical impairment as well as the fact that
he was detained in a general cell with other
detainees and had to
endure that for one night without a mattress and only having a
blanket sitting on his uncle's lap. It is furthermore
clear from the
evidence that he is still affected by his arrest to this day.
[56]. It is
furthermore clear that the 1s t plaintiff was detained on 24 December
2008 at 14h00 and remained in
custody until 26th December 2008 at
13h45. This is +/- 2 (two) days. The 2
nd
plaintiff was
detained on 24 December 2008 at 14h00 and remained in custody until
25
th
December 2008 at 9h30. This constitutes 18% (Eighteen
and a Half) hours.
[57]. Having
regard to the aforesaid this court is of the view that an award of
damages in the sum of R200,000.00
(Two Hundred Thousand Rand) is
appropriate in terms of the 1
st
plaintiff, made up as
follows:
(a)
Unlawful arrest
R80,000.00
(b)
Unlawful detention (2
days)
R120,000.00
and the sum of R170,000.00 (One
Hundred and Seventy Thousand Rand) in terms of the 2
nd
plaintiff made up as follows:
(a)
Unlawful
arrest
R100,000.00
(b)
Unlawful
detention
R70,000.00
[58]. I
accordingly make the following order:
58.1.
The
defendant is directed to pay to the 1st plaintiff the sum of
R200,000.00 (Two Hundred Thousand Rand) together with interest
thereon determined according to the current mora interest rate
calculated from the date of judgment to date of payment.
58.2.
The
defendant is directed to pay to the 2
nd
plaintiff the sum of R170,000.00 (One Hundred and Seventy Thousand
Rand) together with interest thereon determined according to
the
current mora interest rate calculated from the date of judgment to
the date of payment.
58.3.
The
defendant is directed to pay the plaintiffs' costs of suit.
HATTINGH
AJ
ACTING
JUDGE OF THE HIGH COURT
GAUTENG
DIVISION, PRETORIA