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[2018] ZAKZPHC 21
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Phungula v Minister pf Police (AR 342/2017) [2018] ZAKZPHC 21 (8 June 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Reportable
Case No: AR 342/2017
In
the matter between:
THAMSANQA
PHUNGULA
APPELLANT
and
MINISTER
OF
POLICE
RESPONDENT
JUDGMENT
Delivered
on: 8 June 2018
Gorven
J (Madondo DJP concurring)
[1]
The appellant was arrested at his home on 10 November 2015.
His mother charged him with the theft of a number of items from their
home. The charge was laid on 27 September 2015 under what is referred
to as CAS 176/09/2015. After the charge was laid, the
appellant
absconded. Detective Constable Mahlawe was assigned to investigate
the matter. She was based at the Ibisi police station.
On 10 November
2015, the mother of the appellant phoned the police station. She
informed them that the appellant had returned and
that she had locked
him in a rondavel on their property. Detective Constable Duma was
sent there and arrested the appellant. The
arrest was made without a
warrant. The appellant was thereafter detained in the cells at the
Ibisi police station.
[2]
The appellant appeared in the Magistrate’s Court,
Umzimkhulu, on 12 November 2015. He was there granted bail
in
the sum of R500. On 13 November 2015, the mother of the
appellant paid that amount at that court. She was given a bail
receipt. She took this to the Ibisi police station that day. Despite
this, the appellant was not released. He remained in custody
until
his next court appearance on 7 December 2015. On that
occasion, the magistrate presiding was told that bail had
been paid
but the appellant had not been released. He then very properly
ordered that the appellant be released forthwith unless
he was being
held for another offence. Since that was not the case, the appellant
was released. His detention thus lasted from
10 November 2015
to 7 December 2015. The appellant’s mother
subsequently withdrew the charge against
him.
[3]
As a result of this, the appellant sued the respondent out of
the Magistrate’s Court, Umzimkhulu. He claimed damages of
R200 000
on the basis that his arrest and detention,
alternatively his detention after 13 November 2015, had
been unlawful. The
defence can be summarised as follows:
(a)
On 10 November 2015 the appellant was arrested in respect of business
burglary charges under Ibisi CAS 176/09/15 and Ibisi CAS
185/09/15.
(b)
The appellant was charged only in respect of CAS 176/09/15 as, at the
time, the other docket was with the prosecutorial division
in
Umzimkhulu.
(c)
The arrest was lawful and justified.
(d)
The detention of the appellant from 13 November 2015 was lawful and
justified.
The
claim of the appellant was dismissed with costs on the basis that
neither his initial arrest, nor his detention after 13 November 2015
was unlawful.
[4]
Section 40(1)
(b)
of the Criminal Procedure Act 51 of
1977 (the Act) governs the present arrest without a warrant. It
provides, in its material parts:
‘
A
peace officer may without warrant arrest any person—
(
b
)
whom he reasonably suspects of having committed an offence referred
to in Schedule 1
. . .’.
It
has long been accepted that the party effecting such an arrest bears
an onus to prove the lawfulness of the arrest. In
Duncan
v Minister of Law and Order
,
[1]
the following jurisdictional requirements were set out:
‘
(1) The
arrestor must be a peace officer.
(2) He
must entertain a suspicion.
(3) It
must be a suspicion that the arrestee committed an offence referred
to in Schedule 1 to the Act (other than
one particular offence).
(4) That
suspicion must rest on reasonable grounds.’
[2]
It
was then explained that:
‘
If
the jurisdictional requirements are satisfied, the peace officer may
invoke the power conferred by the subsection, ie, he may
arrest the
suspect. In other words, he then has a discretion as to whether or
not to exercise that power . . .’.
[3]
This
case predated the present democratic milieu. Since the onset of
democracy, s 12(1)
(a)
of the Constitution of the Republic of South Africa, 1996, forbids
the deprivation of freedom arbitrarily or without just cause.
It has
been affirmed that the approach in
Duncan
remains valid to claims for unlawful arrests.
[4]
[5]
At the time, Constable Duma was a peace officer. The charge
laid by the appellant’s mother fell within the ambit of
Schedule
1 of the Act. Two of the jurisdictional requirements were
thus satisfied. It is the other two aspects on which the appellant
relies.
It was submitted that Constable Duma did not himself form a
suspicion and that, if he did, it did not rest on reasonable grounds.
It was further submitted that, if these two issues were decided in
favour of the respondent, the arrest of the appellant did not
result
from the proper exercise of the discretion of Constable Duma.
[6]
The evidence concerning the arrest is as follows. The practice
at the Ibisi police station was to hold morning parades. At these
parades, members of that police station were informed of outstanding
investigations. This practice was known as ‘reading
the
docket’. Constable Mahlawe testified that this took place after
the charge was laid and the appellant had absconded.
She said that
‘on the parade I told my colleagues that I am looking for [the
appellant].’ Constable Duma testified
that the docket was read
and information about the matter was discussed at that parade. The
members present were informed that
the appellant had absconded after
the charge had been laid. As mentioned, on 10 November 2015,
the mother of the appellant
telephoned the police station. She
reported that the appellant had returned and that she had locked him
in a rondavel on the property.
Constable Duma went there, met the
mother, was taken to the rondavel and then arrested the appellant.
[7]
When he was asked what information he had when he arrested the
appellant, he replied, ‘His mother said she is suspecting him
.
. . because she was with him as her house was broken into (and)
the items taken.’ When asked as to the nature of
his suspicion
he indicated that he was working according to information discussed
at the parade when the docket was read.
[8]
Much was made by counsel for the appellant of certain answers
given by Constable Duma in evidence. He said that the investigating
officer told the members that if someone sees the appellant, he
should be arrested. The inference which counsel sought to draw
was
that Constable Duma was simply acting on orders without himself
applying his mind to the matter. This does not accord with
his
testimony above. Counsel also highlighted that Constable Duma said:
‘I think that the investigating officer of the case
is the one
who knows how the case is going.’ After it was then put to him
that he had no suspicion of his own, he replied:
‘Yes, because
I was not the investigating officer. What I was meant to do was to
arrest him if I see him as there was a case
for him.’ He also
said that he didn’t go ‘deep into the merits of the
case’.
[9]
The nature of the
required suspicion has been authoritatively stated:
[5]
‘
This Court has endorsed
and adopted Lord Devlin's formulation of the meaning of “suspicion”:
“
Suspicion
in its ordinary meaning is a state of conjecture or surmise where
proof is lacking; ‘I suspect but I cannot prove’.
Suspicion arises at or near the starting point of an investigation of
which the obtaining of
prima
facie
proof is
the end.”’
[6]
It
is clear from the answers given by him that Constable Duma did have a
suspicion that the appellant had committed the offence
in question.
[10]
The next question
is whether the suspicion rested on reasonable grounds. The test for
this is objective.
[7]
In
Minister
of Safety and Security v Magagula
,
[8]
a
police officer was asked by the investigating officer to interview a
murder suspect and locate and arrest another suspect, who
was said by
the first suspect to have taken part in the commission of the
offence. This suspect interviewed implicated himself
and the
appellant. Details of the offence corresponded with what the police
officer had been told by the investigating officer.
The suspect
identified this other person to the policeman, who then arrested him.
The Supreme Court of Appeal accepted that the
policeman had a
reasonable suspicion that the appellant had committed the offence.
[11]
As regards the present matter, the following facts are
relevant. Constable Duma was told that items had gone missing from
the home
of the appellant’s mother. She had laid a charge on 27
September 2015. After the charge was laid, the appellant had
absconded.
Constable Duma had listened while the docket was read. The
docket would have contained the statement of the appellant’s
mother.
There was discussion after the docket was read. Constable
Duma attended at the home of the appellant’s mother on
10 November 2015.
She there confirmed that the appellant
had stolen items from her. There is no confusion about the identity
of the appellant. To
my mind, the suspicion of Constable Duma rested
on reasonable grounds. In the circumstances, the test was satisfied.
[12]
Since the jurisdictional facts for an arrest were satisfied,
Constable Duma had a discretion as to whether to arrest the appellant
or not. It was submitted that he considered that he had no discretion
because he was not the investigating officer. But his answer
in this
series of exchanges shows that he was confused about what was being
asked of him. He considered that he was asked when
the investigating
officer would have charged the appellant. He said that he did not
have the docket in his possession at the time.
When Constable Duma
arrived at the appellant’s mother’s home, there were a
number of community members who wanted to
assault the appellant. It
was argued that he also said that he ‘had to arrest him because
the community was going to assault
him.’ This is correct but it
was also part of the sequence of questions which had clearly confused
him. In re-examination,
he stated that what he considered was that
the appellant had committed the offence in the area and if not
arrested, he might commit
further offences. This shows that he
exercised his discretion. On the day of the arrest, persons from the
community were present.
They wanted to assault the appellant and
claimed that he had engaged in a number of criminal acts. The
appellant was in fact wanted
in connection with a business burglary
as well. It was clearly reasonable to guard against further criminal
action in the community
by arresting the appellant.
[13]
In addition, Constable Duma was aware that the appellant had
absconded after his mother had laid the charge. This had prevented
his arrest for almost two months. It can hardly be argued in the
circumstances that there were less onerous means to obtain the
attendance of the appellant at court. In the light of this, the
discretion to arrest the appellant was properly exercised and cannot
be impugned. Accordingly, in my view, the respondent discharged the
onus to show that the arrest was lawful and did not infringe
s 12(1)
(a)
of the Constitution.
[14]
That brings me to the question of whether or not the detention
of the appellant was unlawful. Since the arrest was lawful, his
initial
detention was also lawful. It was not alleged that his
detention prior to his appearance on 12 November 2015 was
unlawful.
The issue is whether, after the amount fixed for bail was
paid by his mother on 13 November 2015, his continued
detention
was unlawful.
[15]
In this regard, there was a dispute at the trial
as to what took place when the mother of the appellant presented the
bail receipt at the Ibisi police station. She testified that
she met Constable Duma there. He recognised her as the
appellant’s mother and, when she said she had come to bail out
the appellant, asked for the bail receipt. She gave it to
him and he
then phoned Constable Mahlawe. He told the appellant’s mother
that Constable Mahlawe was not prepared to release
the appellant
because he had other cases pending against him. She then left after
requesting Constable Duma to inform the appellant
that she had paid
bail and come there for his release.
[16]
In cross-examination, it was denied that the appellant’s
mother had met and spoken to Constable Duma that day. Counsel put
to
her that the appellant could not be released because she did not
provide the correct documentation. First, it was contended
that the
bail receipt recorded the case number as B41/15 whereas it was in
fact B416/15. Secondly, it was asserted that she had
required a
further document before the appellant was entitled to be released.
Counsel did not contend that she was told any of
this on
13 November 2015, only that this was in fact the case. Her
response that she was not told of these supposed problems
was not
challenged. Neither was any evidence led by the respondent as to the
inadequacy of her documentation on either score. These
issues were
not pleaded. Nor did the respondent call in evidence the person who
allegedly dealt with her that day. Constable Mahlawe
confirmed that
she had been phoned by someone from the charge office without
identifying that person. The identity of that member
was known to
her. All of this leaves the version of the appellant’s mother
uncontested.
[17]
The Constitutional
Court has made clear that s 12(1)
(a)
of the Constitution requires that ‘not only that every
encroachment on physical freedom be carried out in a procedurally
fair manner, but also that it be substantively justified by
acceptable reasons.’
[9]
It has further held that the Constitution imposes a duty on the State
not to perform any act that infringes the entrenched rights
of
people, including that of freedom and security of the person.
[10]
This is because:
‘
The
protection of personal liberty has a long history in the common law,
both of this country and abroad. It is now entrenched in
our law by
the guaranteed right of everyone in s 12(1) of the Constitution to
freedom and security of the person, including the
right not to be
deprived of freedom arbitrarily or without just cause.’
[11]
[18]
Even if the version put by the respondent to the appellant’s
mother withstands scrutiny, it does not assist the respondent.
The
case number on the bail receipt did differ from that on the charge
sheet by the omission of one figure. But this was the only
offence
for which the appellant was ever charged at the Ibisi police station.
It was also the only offence where his mother was
the complainant. It
was also the only offence for which bail had been granted on
12 November 2015. And it was the only
matter postponed to
7 December 2015. All of this could very easily have been
established by the respondent when the bail
receipt was produced. No
evidence was led of any such steps taken by the servants of the
respondent.
[19]
The fixing of bail meant in this instance that, once bail was
paid, the appellant was entitled to his release. Proof of payment by
way of the bail receipt was produced on 13 November 2015.
Once this was done, a clear duty rested on the respondent and
his
servants to establish whether or not there was any lawful basis on
which to further detain the appellant. This was not done.
The onus
rested on the respondent to prove that the continued detention of the
appellant was lawful. The respondent came nowhere
close to
discharging this onus even on its own version, let alone on the
evidence. This means that the detention of the appellant
between
13 November 2015 and 7 December 2015 was
unlawful. The learned magistrate erred in finding otherwise
without
any evidential or legal basis for doing so.
[20]
It remains to
consider the amount of damages to be awarded for this continued
detention. The principles are clear. An award must
‘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.’
[12]
Comparable awards cannot be looked to as more than a basic guide
since facts differ from case to case. An award is ‘no more
than
a crude
solatium
for the deprivation of [liberty]’ and courts are not
extravagant in arriving at such awards.
[13]
All relevant facts must be taken into account, not only the length of
the deprivation of liberty.
[14]
[21]
In
Rahim
,
[15]
a number of persons were wrongfully detained as illegal immigrants
for periods varying between 4 and 35 days. The Supreme Court
of
Appeal granted damages ranging from R3 000 to R25 000.
These awards were not interfered with by the Constitutional
Court.
[22]
In
Woji
v Minister of Police
,
[16]
the appellant had been wrongfully detained between 20 November 2007
and 13 January 2009. He was forced to endure appalling
conditions
while detained. Apart from overcrowded cells, he was raped twice and
witnessed other prisoners being variously raped
and stabbed. He was
awarded R500 000.
[23]
In
Seymour
,
[17]
the 63 year old respondent was detained for five days at a police
station. He had access to his family and medical advisor. After
the
first 24 hours he was moved to a hospital. The Supreme Court of
Appeal reduced an award of R500 000 to R90 000. Apart
from
his detention, there were no further degrading factors.
[24]
In
Rudolph
& others v Minister of Safety and Security & another
,
[18]
the
first and second appellants were detained for three nights in a
police station. The cell was not cleaned during this time,
the
blankets supplied were dirty and infested with insects, they were
unable to wash, had no access to drinking water, were not
allowed
visitors at all and one of the appellants was without his medication
for diabetes. They were awarded R100 000 each
and the first
appellant, who was re-arrested and detained for a further two nights
in similar conditions, save that his wife could
visit and bring his
medication, was awarded a further R50 000.
[25]
In
Tyulu
,
[19]
a magistrate was arrested and detained for less than a few hours for
being drunk in public. An improper motive led to his arrest.
His
standing in the community was specifically taken into account in
arriving at the award of R15 000.
[26]
In
Minister
of Safety and Security v Scott & another
,
[20]
the first respondent was awarded R75 000 by the high court. This
on the basis that he was detained overnight during which
he suffered
trauma and severe anxiety, was given no medication despite reporting
an injury and spent a sleepless night in the cell
due to his fear of
the other inmates. The Supreme Court of Appeal reduced this to
R30 000 because relevant factors had not
been considered by the
high court. Adverse credibility findings had been made against the
first respondent, he was held to have
been an aggressor in an assault
incident, the arrest was rendered wrongful only on the basis of a
‘technicality’ and
the circumstances of the arrest
favoured the version of the appellant. The alleged conditions in his
cell were disputed as was
the issue whether his injuries required
immediate medical attention. In addition, he was detained for a
relatively short time.
[27]
In
Seria
v Minister of Safety and Security & others
,
[21]
the appellant, an architect in his fifties, had been entertaining
guests at his home. He had been wrongfully arrested in the presence
of his guests. He spent three and a half hours in full view of the
public at the local police station and was then detained overnight
in
the police cells, mostly with a drug addict. He was awarded R50 000.
[28]
The following factors are relevant in the present matter. The
unlawful detention endured from 13 November 2015 to 7 December 2015.
There was nothing adverse about the conditions of his detention
during this period. He admitted having been involved in a number
of
criminal activities prior to his arrest. He admitted having been
caught red-handed in a business burglary for which he would
have been
arrested had the docket in that matter not been sent to the
prosecutorial division. Taking into account these facts and
weighing
them against the right of the appellant not to be arbitrarily
deprived of his liberty, I consider the sum of R75 000
to be an
appropriate award of damages.
[29]
In the result, the appeal is upheld with costs and the order
of the Magistrate’s Court, Umzimkhulu, is set aside and
replaced
with the following order:
‘
1.
The defendant is directed to pay damages to the plaintiff in the sum
of R75 000 for his wrongful detention between 13 November
2015
and 7 December 2015.
2.
The defendant is directed to pay interest on that sum at the legally
applicable rate between the date of service of summons and
the date
of payment.
3.
The defendant is directed to pay the costs of suit.
4.
The balance of the plaintiff’s claim is dismissed.’
_________________
GGorven J
Madondo DJP
Date of
Hearing:
1 June 2018
Date of
Judgment:
8
June 2018
Appearances
For the
Appellant:
DP
Crampton, instructed by SM Zwezwe Attorneys
For the
Respondent:
R Nirghin, instructed
by the State Attorney
[1]
Duncan v Minister of
Law and Order
1986
(2) SA 805 (A)
.
[2]
At 818G-H.
[3]
At H-I.
[4]
Minister of Safety and
Security v Sekhoto & another
2011 (1) SACR 315
(SCA) para 6;
MR
v Minister of Safety and Security
2016 (2) SACR 540
(CC) para 44.
[5]
Powell NO & others
v Van Der Merwe NO & others
2005 (5) SA 62
(SCA) para 36 (footnote omitted from the quotation).
[6]
The reference is to
Shabaan
Bin Hussein and Others v Chong Fook Kam and Another
[1970]
AC 942
(PC) ([1969]
3 All ER 1627)
at 948B.
[7]
Minister of Safety and
Security & another v Swart
2012 (2) SACR 226
(SCA) para 20.
[8]
Minister
of Safety and Security v Magagula
[2017]
ZASCA 103.
[9]
Zealand v Minister of
Justice and Constitutional Development & another
[2008] ZACC 3
;
2008 (2) SACR 1
;
2008 (4) SA 458
;
2008 (6) BCLR 601
(CC) para 43.
[10]
Carmichele v Minister
of Safety and Security & another (Centre for Applied Legal
Studies Intervening)
2001
(4) SA 938 (CC)
para 44.
[11]
Minister of Home
Affairs v Rahim & others
2016 (3) SA 218
(CC) para 27.
[12]
Minister of Safety and
Security v Tyulu
2009
(5) SA 85
(SCA) para 26.
[13]
Minister of Safety and
Security v Seymour
2006 (6) SA 320
(SCA) para 20; approved in
Rahim
para 33.
[14]
Tyulu
para 25.
[15]
See footnote 11.
[16]
Woji v Minister of
Police
2015 (1) SACR
409 (SCA).
[17]
See footnote 13.
[18]
Rudolph & others v
Minister of Safety and Security & another
2009
(5) SA 94 (SCA).
[19]
See footnote 12.
[20]
Minister of Safety and
Security v Scott & another
2014 (6) SA 1 (SCA).
[21]
Seria v Minister of
Safety and Security & others
2005
(5) SA 130
(C).