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[2018] ZAGPPHC 172
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Machongwe v Minister of Police (37321/2015) [2018] ZAGPPHC 172 (28 March 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISON, PRETORIA
CASE
NUMBER: 37321/2015
In
the matter between:
RONALD
MACHONGWE
Plaintiff
And
MINISTER
OF
POLICE
Defendant
JUDGMENT
SARDIWALLA
J:
INTRODUCTION
[1]
Crisply formulated, the gravamen with which this case is concerned is
whether the defendant
has discharged the burden of proving that the
plaintiffs arrest was lawful. If the defendant has not fulfilled that
burden of proof,
the corollary to that question is the issue of
quantum - what just and equitable compensation must be awarded to the
plaintiff.
PARTIES
[2]
The plaintiff is Ronald Machongwe, an adult male who has instituted
these proceedings in which he claims
that he was unlawfully arrested
by police officers who were under the employment of the defendant.
[3]
The defendant is the Minster of Police, in his capacity as the head
of the South African Police Service
under which the police officers
who arrested the plaintiff work.
BACKGROUND
[4]
Before contending with the legal issues, it is wise to first trace
the genesis of this dispute. In doing
so, only the salient facts
necessary for the resolution of the legal dispute will be traversed.
[5]
The plaintiff alleges that on 2 April 2015, close to Sunnyside,
Pretoria he was driving in order to
go secure a business deal with a
potential client. He was stopped by police officers who wanted to
check his license disc but they
realised that the license disc was in
order.
[6]
From here until the point where the plaintiff is arrested, there is a
dispute regarding what precisely
took place however, there is no
dispute regarding the applicants' arrest. This dispute moreover, is
not crucial to the determination
of the legal issues.
[7]
According to the plaintiff's version, the police officers saw money
in his car and demanded that
he give them a bribe in order for them
to let him go. He declined to offer them the bribe and they
immediately noticed that he
had been recording them. Upon realising
this they took his phone and deleted the recording.
[8]
It is at this point that the plaintiff says that he was then arrested
and the police manufactured
a charge for possession of dagga and he
was taken to Sunnyside Police Station.
[9]
According to the defendant's version, police officers stopped the
vehicle driven by the plaintiff and
asked to conduct a search inside
the car and on the plaintiff. During the search, the police officers
found a bag of dagga inside
the pocket of the plaintiff. The
defendant claims that it is upon such a discovery that the plaintiff
was arrested.
[10]
The defendant continues to allege that the plaintiff was taken to
Pretoria Central where the dagga was weighed because
there was no
machine to weigh dagga at Sunnyside Police Station. The dagga was
weighed and a certificate of the weight of the dagga
was issued with
the weight of the dagga being 0,15 gram. The dagga was booked with
the South African Police Service 13 official
under reference number
SAPS 13 No 145/04/2015 and sealed in the presence of the Plaintiff.
[11]
On the plaintiffs appearance in the Magistrates' Court the matter was
abandoned (declared a nulle
prosequi) as a consequence of the
defendant failing to produce the certificate of the weight of dagga
which was not in the docket.
[12]
The plaintiff now approaches this court in order to seek damages
against the defendant for an amount of R500
000.
THE
LAW
[13]
Section 12 (1) of the South African constitution enshrines the rights
of everyone to freedom and security
of the person. It states that:
1.
Everyone has the right to freedom and security of the person, which
includes the right
a.
not to be deprived of freedom arbitrarily or without just cause;
b.
not to be detained without trial;
c.
to be free from all forms of violence from either public or private
sources;
d.
not to be tortured in any way; and
e.
not to be treated or punished in a cruel, inhuman or degrading way."
[14]
It
is said that Section 12(1) guarantees both substantive and procedural
protection.
[1]
The substantive
component requires the state to have good reasons for depriving
someone of their freedom and the procedural component
requires the
deprivation to take place in accordance with fair procedures
[15]
In
the decision of
Pather
v Minister of Police
[2]
in
which the leading judgment of
Minister
of Safety and Security v Sekhoto and Another
[3]
was
cited, it was stated that in cases where it is claimed that an arrest
is urtlawful that the essential element to be proven is
lawfulness.
[16]
In
Minister
of Law and Order and Others v Hurley and Another
[4]
regarding
the onus it was said:
"An
arrest constitutes an interference with the liberty of the individual
concerned, and it therefore seems to be fair and
just to require that
the person who arrested or caused the arrest of another person should
bear the onus of proving that his action
was justified in law"
[17]
This position in our law is even more entrenched as a result of the
supremacy of the Constitution especially
the Bill of Rights in which
section 12(1) finds its positionality and section 1 in which we find
the fourtding values. Section
1 states that the Republic of South
Africa is founded on the Supremacy of the Constitution and the rule
of law. Moreover, South
Africa is founded on accountability,
responsiveness and openness.
[18]
From this stems the principle that:
"It
is a requirement of the rule of law that the exercise of public power
by the Executive and other functionaries should not
be arbitrary.
Decisions must be rationally related to the purpose for which the
power was given, otherwise they are in effect arbitrary
and
inconsistent with [the rule of law]."
[5]
5
President of the Republic of South Africa and Others
v
South
African Dental Association and Another
(2015] ZACC 2;
2015 (4)
BCLR 388
(CC).
[19]
The
power of police officers is given in order to: prevent, combat and
investigate crime, to maintain public order... and to uphold
the
law.
[6]
Moreover, to ensure the
safety and security of all persons and property in the national
territory; to uphold and safeguard the
fundamental rights of every
person as guaranteed by chapter 2 of the South African
Constitution.
[7]
This is the
reason the powers are given and this is why the defendant bears the
onus of showing that the arrest was lawful, failing
which, the action
will be arbitrary and therefore unlawful.
[20]
The following are crucial in proving the lawfulness of an arrest in
terms of section 40(1) of
the Criminal Procedure Act:
"1.
the arrestor must be a peace officer;
2.
the arrestor must entertain a suspicion ;
3.
the suspicion must be that the suspect (the arrestee) committed an
offence Referred to in Schedule 1;
4.
The suspicion must rest on reasonable ground
5.
the person must be reasonably suspected of committing or of having
committed an offence under any law
governing the making, supply,
possession or conveyance of intoxicating liquor or of
dependence-producing drugs or the possession
or disposal of arms or
ammunition;"
[21]
In this case the key issue in dispute is whether the plaintiff was in
possession of dagga or not.
PLAINTIFF'S
CASE
[22]
The plaintiff's case is simply that there was no dagga in his
possession and that the police officers
manufactured the charge.
DEFENDANT'S
CASE
[23]
The defendants contention is that the plaintiff is unreliable, no
bribe was ever requested from the plaintiff,
that the plaintiff's
chronology of events does not make sense and that the plaintiff was
found in possession of dagga.
ANALYSIS
[24]
The defendant in this case need only show that the dagga does exist
and was found in the plaintiff's possession
and then explain why the
matter was not prosecuted- was it abandoned because of prosecutorial
discretion or because the investigation
is continuing. The defendant
simply does not provide an explanation. Instead, the defendant
chooses to attack the credibility of
the plaintiff and the
plaintiff's version of events as if the plaintiff bears the onus in
this case.
[25]
It must be emphasised that in this a case of unlawful arrest, it is
the defendant, the one who has arrested
or caused the arrest to have
been effected bears the onus. The submissions by the defendant,
unfortunately, do not take the onus
inquiry any further.
[26]
It is for this reason that the defendant has failed to discharge the
onus of showing the court that
the arrest was lawful. The defendant
does not produce the confiscated dagga or even the certificate of
weight of the dagga. The
defendant does not explain why if the dagga
exists, the matter was nonetheless declared a
nulle prosequi.
CONCLUSION
ON THE MERITS
[27]
The plaintiff's claim that the arrest was unlawful succeeds and the
defendant's claim that the arrest was
lawful fails.
QUANTUM
[28]
For
an enriching discussion of the vexed issue of quantum see
Mathe
v
Minister
of Police
[8]
_from
para
16 - 30. Essentially, Courts are cautioned not to engage quantum as
if they are attempting to enrich the plaintiff. However,
they must
consider the certain factors: the role of the police service in our
society; the manner in which the arrest was effected;
the conditions
in which the plaintiff was detained; the period of the detention; the
impact of the detention on the plaintiff,
his life, health, family or
work; whether there has been an apology; and the rights of the
plaintiff that have been violated.
[29]
Cognisant of the authorities in
Mathe
and guided by the awards
given in those cases it is just and equitable to grant the plaintiff
damages for R250 000. The manner in
which the defendant has pursued
this litigation, up to this point not admitting or giving a
satisfactory explanation for the arrest.
Many people in the
plaintiffs position would have not been able to amass the financial
muscle to litigate against the might of
the state.
[30]
The way in which the plaintiff describes his treatment from which it
is abundantly clear that
there was absolutely no reason for the
police to arrest him except for malicious permutations. The betrayal
of the police officers
' oath, the law and the Constitution, is
atrocious.
[31]
Depravation of the plaintiffs sacred liberty in an arbitrary manner
and for is deserving of this award.
ORDER
[32]
In the result the following order is made: Judgment is granted
against the defendant for:
1. Payment
of the sum of R250 000;
2.
Interest at the rate of 9% per annum from 14 days after date of
service of the summons until date of payment;
3.
Costs of suit.
C
M SARDIWALLA
JUDG
OF THE GAUTENG DIVISION, PRETORIA
APPEARANCES
Date
of Hearing
26 February 2018
Date
of Judgment
28 March 2018
Counsel
for the Plaintiff
ADV JSC NKOSI
Applicant's
Attorneys
MWIM ATIORNEYS
Counsel
for the Respondent
ADV T.T TSHIVHASE
Respondent's
Attorneys
THE
STATE ATIORNEY
[1]
Iain Currie & Johan de Waal in
The
Bill of Rights Handbook
fifth
Ed (Juta and Company Ltd, Cape Town 2005).para 12.1 p 292.
[2]
Pather v Minister of Police (2016] ZAGPPHC 215 at para 35.
[3]
2011 (1) SACR 315
(SCA)
[2011] 2 All SA 157
(SCA);
2011 (5) SA 367
(SCA)) (2010] ZASCA
[4]
[1986] ZASCA 53
; (1986] 2 All SA 428 (A).
[5]
President
of the Republic of South Africa and Others
v
South
African Dental Association and Another
(2015]
ZACC 2; 2015 (4) BCLR 388 (CC).
[6]
Constitution of the Republic of South Africa 1996, section 205(3).
[7]
South African Police Service Act, 68 of 1995
.
[8]
[2017] ZAGPJHC 133;
2017 (2) SACR 211
(GJ);
[2017] 4 All SA 130
(GJ).