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Ngwenya v Minister of Police (A3128/2017) [2018] ZAGPJHC 610 (29 October 2018)

80 Reportability
Criminal Procedure
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Brief Summary

Arrest and Detention — Lawfulness of arrest — Appellant arrested without warrant by police on suspicion of involvement in hijacking — Appellant denied knowledge of the offence and was not identified at an identity parade — Court found arrest and subsequent detention unlawful as police lacked reasonable grounds for arrest based on unreliable information from an accomplice — Respondent held liable for compensation for unlawful detention.

Comprehensive Summary

Summary of Judgment


Introduction


This matter concerned an appeal against a decision of a lower court (the court a quo) in an action for damages arising from arrest and detention. The appeal was heard in the High Court of South Africa, Gauteng Local Division, Johannesburg, under case number A3128/2017.


The appellant was Selby Zwelibanzi Ngwenya, the plaintiff in the court a quo. The respondent was the Minister of Police, cited in his representative capacity for the conduct of members of the South African Police Service.


The procedural history reflected that the appellant’s appeal was noted late, necessitating an application for condonation at the commencement of the hearing. The respondent did not oppose the condonation application, and condonation was granted. The substantive appeal then proceeded on the question whether the appellant’s arrest and ensuing detention were lawful, and, if not, what relief should follow.


The general subject matter of the dispute was the lawfulness and justification of a warrantless arrest in terms of the Criminal Procedure Act 51 of 1977, the lawfulness of continued detention after first appearance in court, and the appropriate constitutional and delictual consequences flowing from an unlawful deprivation of liberty.


Material Facts


It was common cause that, in the early hours of 2 October 2015, the appellant was at home asleep when police officers arrived and arrested him without a warrant. It was also not in dispute that the appellant was detained in police cells and made his first court appearance on 5 October 2015, and that he remained detained until he was released on bail on 29 October 2015.


On the appellant’s version, police officers asked him about a firearm; he denied possessing one. He was questioned about alleged involvement in a hijacking, which he denied. He was then taken away, driven around while police checked other houses, and later detained at Springs. The appellant testified that he encountered Ayanda Sidu (Ayanda) in the company of police and learnt that Ayanda had directed the police to his home. The appellant further stated that he attended an identity parade at which he was not pointed out.


The arresting/investigating officer (Detective Constable Koma) testified that Ayanda led the police to the appellant’s home and pointed him out as an accomplice, alleging also that the appellant was in possession of the firearm used in the offence. Koma testified that the appellant was found hiding at the corner of the bed and then cooperated by leading the police to other alleged accomplices (including persons referred to as Thulani and Willie), but those efforts did not yield arrests. The court treated certain aspects of this follow-up information as not advancing the justification for arrest, noting that what was said by relatives of those individuals was hearsay and uncorroborated.


A further material factual feature, as drawn from the record and emphasised by the appeal court, was that Ayanda had previously lied to the investigating officer and had provided inconsistent information about the identities of accomplices. The complainant had reportedly been robbed by five assailants, and Ayanda initially gave four names that did not include the appellant, later adding the appellant’s name. The court regarded Ayanda’s unreliability as central to whether the police could reasonably rely on the information for purposes of arrest and continued detention.


Legal Issues


The central legal questions were whether the appellant’s arrest without a warrant on 2 October 2015 was lawful under section 40(1)(b) of the Criminal Procedure Act 51 of 1977, which permits warrantless arrest where a peace officer reasonably suspects a person of having committed a Schedule 1 offence, and whether the respondent discharged the onus of proving justification for the interference with liberty.


A further issue was whether the respondent could be held liable for the appellant’s continued detention after his first court appearance on 5 October 2015, given the respondent’s contention that subsequent detention flowed from a court order and was therefore not attributable to the police.


The matter therefore involved a combination of legal standards (the objective test for “reasonable suspicion” and constitutional protections against arbitrary deprivation of liberty), the application of law to fact (whether the information held by the officer met the threshold for reasonable suspicion), and an evaluative determination on the lawfulness of continued detention in circumstances where the police allegedly failed to present a fair and objective account of relevant facts to the prosecuting and judicial authorities.


A consequential remedial issue was the appropriate award of general damages for unlawful arrest and detention, and whether the matter should be remitted to the court a quo for quantum, particularly because quantum had not been determined there.


Court’s Reasoning


The court approached the matter from the premise that an arrest is a serious interference with liberty and that, as a matter of established principle, the party responsible for the arrest bears the onus of proving that the arrest was justified in law. The court linked this approach to the constitutional protection in section 12(1)(a) of the Constitution, which guarantees the right not to be deprived of freedom arbitrarily or without just cause.


Turning to the statutory framework, the court considered section 40 of the Criminal Procedure Act, focusing on the requirement that the peace officer must have a reasonable suspicion (an objective standard) that the arrestee committed a Schedule 1 offence. In applying the objective test, the court examined what information the arresting officer had at the time of arrest and whether that information could properly sustain reasonable suspicion.


A key component of the court’s evaluation was the reliability of the information supplied by Ayanda. The court rejected the respondent’s contention that the suspicion was reasonable merely because it was based on information from a co-accused already arrested. The court gave two reasons for this conclusion. First, it stated that the confession of one accused is inadmissible against another, and therefore could not, without more, justify the arrest of the appellant. Second, and more centrally on the facts, the court found that Ayanda had demonstrated unreliability by lying to the investigating officer and by giving shifting versions (including initially naming four accomplices and later adding the appellant). On that basis the court concluded that a reasonable officer would have treated Ayanda’s information with circumspection, and that this did not occur.


The court further reasoned that the attempts to corroborate Ayanda’s information by visiting other alleged accomplices did not cure the deficiency, because the information obtained from relatives (that those persons no longer slept at home following the hijacking) was hearsay and not corroborated. The court therefore concluded that the officer’s suspicion was not based on reasonable grounds, rendering the arrest unlawful.


On the question of continued detention after 5 October 2015, the court rejected the respondent’s submission that the police could not be liable because the appellant’s post-appearance detention was due to the court’s remand. The court held that police have a public law duty to place before the prosecutor and the court a fair, honest, and objective statement of relevant facts bearing on detention and bail. It found that the investigating officer failed to do so, particularly given the known weakness in the State’s case arising from Ayanda’s unreliability and the fact that the appellant was not identified at the identity parade. The court considered that these circumstances supported the conclusion that the continued detention was unlawful and inconsistent with the constitutional right to freedom.


In relation to damages, the court relied on authority emphasising that damages for unlawful arrest and detention are not intended to enrich a claimant but to provide solatium for injured feelings, while also reflecting the importance of the right to liberty. Although general damages had not been determined in the court a quo, the appeal court held there was no reason to remit the question and proceeded to determine compensation itself. The court also recorded concessions by the appellant’s counsel that the appellant was not persisting with the claim for assault damages (due to absence of proof/medical evidence) and that the claim for legal fees could not succeed because the bill of costs had not been taxed.


In assessing the period and impact of detention, the court took into account the appellant’s humiliation in being arrested at home in the early hours, the deprivation of family life for 27 days, and the absence of a proper basis for the arrest and extended detention given the known unreliability of the informant. The court also expressed agreement with the proposition that claims against the State should not operate as a “get rich quick” mechanism, while nonetheless recognising the seriousness of arbitrary deprivation of liberty and the need for fair compensation.


Outcome and Relief


The court granted condonation for the late noting of the appeal, the respondent having filed no opposition.


On the merits, the court upheld the appeal and set aside the order of the court a quo. It substituted that order with an order declaring that the appellant’s arrest and detention from 2 October 2015 to 29 October 2015 were wrongful and unlawful.


The respondent was ordered to pay the appellant R300 000 within 30 days of the order, together with interest at 9% per annum, calculated from the date of service of summons to date of payment.


The respondent was further ordered to pay the costs of the appeal and the costs of the action on the party-and-party scale.


Cases Cited


Van Wyk and Another v The Minister of Police and Another (A617/15) [2016] ZAGPPHC 942 (17 November 2016) (Unreported)


Minister of Safety and Security and Another v Mhlana 2011 (1) SACR 63 (WCC)


Scheepers v Minister of Safety and Security 2015 (1) SACR 284 (ECG)


Minister of Safety and Security v Tyulu 2009 (5) SA 85 (SCA)


Legislation Cited


Constitution of the Republic of South Africa, 1996 (in particular sections 12(1)(a), 12(2), and 35(2)(e))


Criminal Procedure Act 51 of 1977 (in particular section 40)


Rules of Court Cited


No rules of court were cited in the judgment.


Held


The court held that the respondent failed to establish that the appellant’s warrantless arrest was justified under section 40 of the Criminal Procedure Act, because the arresting officer’s suspicion was not reasonable on objective grounds, having been materially based on information from an informant/co-accused who had demonstrated unreliability and whose information was not properly corroborated.


The court further held that the respondent was liable for the appellant’s continued detention beyond his first court appearance because the police failed in their duty to place a fair, honest, and objective account of relevant facts before the prosecuting and judicial authorities, particularly in light of the weakness in the State’s case and the absence of identification at an identity parade.


The court held the respondent liable to compensate the appellant for the full period of detention from 2 October 2015 to 29 October 2015, and awarded R300 000 as general damages together with interest, as well as costs.


LEGAL PRINCIPLES


An arrest constitutes a significant infringement of liberty, and the party who arrested or caused an arrest bears the onus of proving that the arrest was justified in law.


For an arrest without a warrant under section 40 of the Criminal Procedure Act 51 of 1977, the applicable standard is whether the peace officer held a reasonable suspicion on objective grounds, assessed with reference to the facts known to the officer at the time of arrest, rather than by reference to subsequent developments such as whether prosecution follows or succeeds.


Where the justification for arrest depends materially on information from an accomplice or informant whose reliability is in doubt, the reasonableness of the suspicion requires a level of caution and circumspection; uncritical reliance on demonstrably unreliable information may render the suspicion unreasonable and the arrest unlawful.


Police officials have a public law duty to place before the prosecutor and the court a fair, honest, and objective account of relevant facts bearing on decisions about continued detention and bail; a failure in that duty may render continued detention unlawful even where a formal remand order is made.


Damages for unlawful arrest and detention are aimed at providing solatium for injured feelings and vindicating the importance of the right to personal liberty, and should be commensurate with the injury without functioning as a vehicle for enrichment.

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[2018] ZAGPJHC 610
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Ngwenya v Minister of Police (A3128/2017) [2018] ZAGPJHC 610 (29 October 2018)

REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: A3128/2017
In
the matter between:
NGWENYA:
SELBY
ZWELIBANZI                                                 APPELLANT
AND
MINISTER
OF
POLICE                                                                   RESPONDENT
JUDGMENT
TWALA
J
[1]
The central issue in this appeal is whether the arrest and detention
of the appellant by members of the South African Police
Service on
the 2
nd
of October 2015 until he was released on bail on the 29
th
of October 2015 was lawful and justified.
[2]
At the beginning of the hearing the appellant brought an application
for condonation for the late noting of the appeal. The
respondent did
not file any opposition to the application. The application for
condonation was granted.
[3]
It is common cause that the appellant was sleeping in his home on the
2
nd
of October 2015 when in the early hours of the morning the police
came and arrested him without a warrant. It is not in dispute
that he
was later detained in the cells and made his first appearance in
court on the 5
th
of October 2015. He was only released on bail on the 29
th
of October 2015.
[4]
It is apparent from the record that the appellant was at his home
when he was arrested by the police. The police asked him for
a
firearm and he told them he does not have a firearm. They beat him up
and asked him about his involvement in a hijacking which
he denied
knowledge of. He was then handcuffed and bundled into the police
vehicle and they drove around with him checking on other
houses. He
was later detained in the police cells in Springs. He then saw Ayanda
Sidu (Ayanda) who was in the company of the police
when he was
arrested. In their conversation it transpired that it is Ayanda who
directed the police to his house. Later that day
the investigating
officer came and told him to admit to the hijacking so that he can be
released on bail, but he refused to admit
something which he does not
know. He attended an identity parade but no one pointed him out at
the identity parade. He was detained
from the 2
nd
of
October 2015 until he was released on bail 29
th
of October
2015.
[5]
Detective constable Koma’s (Koma) testimony was that he was
taken to the appellant’s house by Ayanda who pointed
out the
appellant as an accomplice in the hijacking case and that he is in
possession of the firearm that was used in committing
the offence. He
found the appellant hiding at the corner of the bed in his house. He
confronted him with the firearm and the hijack
and he decided to
co-operate with the police. He directed him to Thulani, Willie and
Schalkwyk. He directed him to Thulani’s
address whom he said
has the firearm but when they got there Thulani’s grandmother
told him that since  Thulani hijacked
a taxi in Springs he  does
not sleep at home. The appellant then took the police to Willie’s
address where they phoned
his father who informed them that since he
hijacked a taxi in Springs Willie had not been sleeping at home. He
then detained the
appellant in the police cells in Springs where
after he appeared in court and was remanded in custody at Modderbee
prison until
he was released on bail.
[6]
It is trite law and in terms of the bill of the rights enshrined in
the Constitution of the Republic of South Africa Act, 108
of 1996
that, everyone has the right to freedom and security of the person,
which includes the right not to be deprived of freedom
arbitrarily or
without just cause.
[7]
Section 40 of the Criminal Procedure Act, Act 51 of 1977 (CPA)
provides as follows:
“
Arrest by
peace officer without warrant:
(1)
A
peace officer may without 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;
(c)
……………………
.
[8]
In
Van
Wyk and Another v The Minister of Police and Another (A617/15) 2016
ZAGPPHC 942 (17 November 2016)
(Unreported) the court stated the following:
“
I consider
it to be good policy that the law should be as there stated. 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.”
[9]
In
Minister
of Safety and Security and Another v Mhlana
2011 (1) SACR 63
(WCC)
the court stated the following:
“…………
.
In order for a peace officer to be placed in a position to rely upon
s40 (1) (a) it is not necessary that the crime in fact be
committed
or that the arrestee be later charged and convicted of the suspected
offence.”
[10]
In
Scheepers
v Minister of Safety and Security
2015 (1) SACR 284
(ECG)
the court said the following:
“
The test
is an objective one and the question to be answered is in our view
whether the arresting officer had direct personal knowledge
of
sufficient facts at the time of the arrest, on the strength of which
it can be concluded that the arrestee had prima facie committed
an
offence in his presence. Stated differently, did the arresting
officer have knowledge at the time of arrest of the arrestee,
of such
facts which would, in the absence of any further facts or evidence,
constitute proof of the commission of the offence in
question. The
aim is not to determine whether the arrested person is guilty of the
offence on which he was arrested. It accordingly
matters not that the
arrestee was not prosecuted or was acquitted at a subsequent trial on
the basis of evidence other than what
the arresting officer had in
his possession at the time when he executed the arrest. An acquittal
simply means that the prosecution
failed to prove the guilt of the
arrested person beyond a reasonable doubt on the evidence available
to it at that time and placed
before the trial court.
To hold otherwise
is, as a matter of public policy, undesirable. It would mean that
knowledge is ex facto attributed to the arresting
officer, of the
facts he did not have actual knowledge of at the time of effecting
the arrest. It requires the search for a balance
between two equally
important aims of public policy, namely the liberty of the individual
on the one hand, and the maintenance
of law and order on the other.
Arrests under s 40 (1) (a) usually take place in circumstances where
prompt and decisive action
is called for, and which is of necessity
founded on the circumstances of the moment, such as public order
offences. The arresting
officer cannot be expected to determine the
guilt of the arrestee in such circumstances in advance, and to hold
otherwise would
unnecessarily discourage peace officers from
arresting offenders who are in the act of committing an offence. The
arrest of a person
in flagrante delicto without a warrant is a
necessary power to effectively maintain order and combat crime and
should not be unduly
curtailed.”
[11]
I find myself in disagreement with the contention of the defendant’s
counsel that the arresting officer’s suspicion
was based on
reasonable grounds because he received information on a co-accused
who was already arrested. Firstly, the confession
of one accused is
inadmissible against another. Secondly, in this particular case, it
is on record that the investigating officer
initially was lied to by
Ayanda who later pointed out the appellant.  He gave the
investigating officer four names of his
accomplices and the follow up
on them drew a blank. He admitted to the investigating officer that
he was lying to him on other
information regarding the commission of
the offence. A reasonable peace officer would have henceforth treated
any other information
from Ayanda with circumspect and same cannot be
said about the investigating officer in this case.
[12]
It is on record that the complainant informed the police that he was
robbed by five (5) assailants. Ayanda was first to be
arrested and he
gave four (4) names as his accomplices but did not include the name
of the appellant. In the second instance he
then included the name of
the appellant. It is my respectful in my view therefore that, coupled
with the fact that Ayanda  had
lied to the investigating officer
before, should have signalled to the him to be circumspect and
cautious in his approach of the
case regarding the information from
Ayanda and exercise his discretion to arrest the appellant reasonably
under the circumstances.
[13]
Nothing turns on the investigating officer’s testimony that the
appellant took them to Thulani whose grandmother told
them that he
does not sleep at home anymore since the robbery and hijack in
Springs and what they were similarly told by the father
of Willie. It
is hearsay evidence which was not corroborated at all. I therefore
conclude that the arresting officer’s suspicion
was not based
on reasonable grounds since Ayanda had already shown that he was
unreliable. I therefore find that the arrest and
detention of the
appellant was wrongful and unlawful.
[14]
It is contended by the respondent’s counsel that the further
detention of the appellant after the 5
th
of October 2015 was due to the order of the court and therefore the
respondent cannot be held liable. I disagree. There is a public
law
duty on the part of the police officer to place before the prosecutor
and the court a fair, honest and objective statement
of the relevant
facts to determine the issue of releasing the appellant on bail and
the investigating officer failed to do so on
the first appearance of
the appellant in court. On the first appearance, the investigating
was aware of the strength of the State’s
case based on the
unreliability of the information of Ayanda. Secondly, the appellant
was continuously detained until he was released
on bail on the 29
th
of October 2015 even after he was not pointed out at an identity
parade. The irresistible conclusion I come to is that the continued

detention of the appellant was unlawful and in breach of the right to
freedom in terms of section 12(1)(a) of the Constitution.
I therefore
hold the respondent liable to compensate the appellant for the full
period of his detention.
[15]
Section 12 (1) (a) of the Constitution of the Republic of South
Africa, Act 108 of 1996 provides as follows:
“
(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)
………
.
(2) Everyone has
the right to bodily and psychological integrity, which includes the
right-
(a)
………….
(b)
to security in and control over their body;
(c)
…………………
[16]
Section 35 (2) (e) of the constitution provides as follows:
“
(2)
Everyone who is detained, including every sentenced prisoner, has the
right-
(e)
to conditions of detention that are consistent with human dignity,
including at least exercise and the provision, at state expense
of
adequate accommodation, nutrition, reading material and medical
treatment.”
[17]
In
Minister
of Safety and Security v Tyulu
2009 (5) SA 85
(SCA)
,
the Supreme Court of Appeal stated as follows:
“
In the
assessment of damages for unlawful arrest and detention, it is
important to bear in mind that the primary purpose 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 attempts 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 any arbitrary deprivation of personal liberty
is viewed in our law.”
[18]
The issue of general damages never arose in the court a quo for
obvious reasons. However, I find no reason why it should be
referred
back to the magistrate court for determination.
[19]
Counsel for the appellant conceded that he is not pursuing the claim
for the assault for there was no proof of the injuries
nor medical
evidence tendered. Further, the same applies to the claim for legal
fees occasioned by the arrest and detention since
the bill of costs
was not subject to taxation by the taxing Master or any other body
with the same authority.
[20]
I agree with the plethora of authorities that action for damages
against the State should not be used as a
get
rich quick scheme
since taxpayers fund these kinds of damages. However, it is not in
dispute that the appellant suffered the arbitrary deprivation
of
personal liberty and human indignation by virtue of his unlawful
arrest and detention. He found himself being humiliated in
front of
his family in the early hours of the morning. He was deprived the
enjoyment of his family and children for a period of
27 days without
just cause. There was absolutely no reason for the police to rush
into arresting the appellant without a warrant
and detain him for so
long when they were fully aware that Ayanda was an unreliable person.
I hold the view therefore that the
appellant had quite a traumatic
experience which entitles him to a fair and reasonable compensation.
[21]
In the circumstances, I make the following order:
I.
The
appeal is upheld;
II.
The
order of the court a quo is set aside and replaced with the following
order:
1.
The
arrest and detention of plaintiff from the 2
nd
of October 2015 up until the 29
th
of October 2015 was wrongful and unlawful;
2.
The
respondent is liable to pay the appellant the sum of R300 000
within 30 days from the date of this order together with
interest at
the rate of 9% per annum calculated from the date of service of
summons to date of payment;
3.
The
respondent is liable to pay the costs of the appeal and of the action
on a party and party scale.
_________________
TWALA
J
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION
I
agree
_______________
MATSEMELA
AJ
ACTING
JUDGE OF THE HIGH COURT OF
SOUTH
AFRICA, GAUTENG LOCAL DIVISION
Date
of hearing: 15 October 2018
Date
of Judgment: 29 October 2018
For
the Appellant: ADV. J Viljoen
Instructed
by: E Talane Inc
TEL:
011 421 3097
For
the Respondent: ADV.  IS Ngwetjana
Instructed
by: STATE ATTORNEY
TEL:
011 330 7674

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