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[2018] ZAECMHC 30
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Tate v Minister of Police and Another (1452/2015) [2018] ZAECMHC 30 (27 June 2018)
IN THE HIGH COURT OF SOUTH
AFRICA
EASTERN CAPE LOCAL DIVISION,
MTHATHA
CASE
NO: 1452/2015
In
the matter between:-
INGIPHILE
PHAKAMISA
TATE
Plaintiff
and
MINISTER
OF
POLICE
First
Defendant
CONTSBALE
MANCO
Second
Defendant
JUDGMENT
MATEBESE
AJ
[1] In this matter the plaintiff
is suing the defendants for damages for unlawful arrest and
detention.
[2] The parties agreed to
proceed on both liability and quantum. At the beginning of the
trial I requested counsel appearing
for the parties to engage their
respective clients on the quantum to be awarded in the event I find
against the defendant on liability.
Counsel indeed reached an
agreement in this regard and I am grateful to both of them for their
assistance.
[3] It is common cause that the
plaintiff, Ingiphile Phakamisa Tate, was arrested without a warrant
by the second defendant, a member
of the South African Police
Services and the first defendant’s employee. The arrest, it is
common cause, took place in the
morning of the 27 March 2015 Ngqeleni
Magistrates’ court, Ngqeleni.
[4] The plaintiff alleges that
his arrest aforesaid was wrongful and unlawful and claims damages in
the total sum of R750 000.00
(Seven Hundred and Fifty Thousand Rand
only).
[5] It is also common cause that
the plaintiff was detained by the members of the South African Police
Services on 27 March 2015
and was released on 30 March 2015 without
appearing in court.
[6] The plaintiff contends that
his detention was also unlawful and for this claims damages as well.
Unlawful arrest and
detention:
[7] I have already stated herein
above that it is common cause that the plaintiff was arrested without
a warrant.
[8] Section 12 of the
Constitution guarantees everyone a right to freedom and security
which right includes a right not to be deprived
of freedom
arbitrarily or without just cause.
[9] Section 35 of the
Constitution guarantees everyone who is arrested a right, inter alia,
to be brought before court as soon as
reasonably possible, but not
later than48 hours after the arrest or the end of the first court day
after the expiry of the 48 hours,
if the 48 hours expires outside
ordinary court hours or on a day which is not and ordinary court day.
[10]
Section 40(1)
of the
Criminal Procedure Act 51 of 1977
authorises a peace officer to
arrest a person without a warrant under certain circumstances.
[11] In this case, though not
clearly and pertinently pleaded, I understood that the first
defendant seeks to justify the arrest
of the plaintiff by reliance on
the provisions of
section 40(1)(b)
which provides that a peace
officer may arrest without a warrant any person whom he reasonably
suspects of having committed an
offence referred to in Schedule 1 of
the
Criminal Procedure Act
, other than the offence of escaping from
lawful custody. The plaintiff also understood the defendants’
case to be based
on the provisions of
section 40(1)(b)
of the
Criminal Procedure Act.
[12
]
It is trite that the jurisdictional facts for a
section 40(1)(b)
defence are that the arrestor must be a peace officer, the arrestor
must entertain a suspicion, the suspicion must be that the
person
arrested has committed an offence referred to in Schedule 1 and the
suspicion must rest on reasonable grounds.
[1]
[13] That the arrestor of the
plaintiff on 27 March 2015 was a peace officer is not in dispute, so
is the fact that the arrestor
suspected the plaintiff of having
committed Malicious Injury to Property which is an offence referred
to in Schedule 1 to the
Criminal Procedure Act.
[14
]
The only issue is whether the suspicion rested on reasonable grounds.
This is an issue that must be determined objectively.
In
other words, the test is not whether the police officer believes he
has reason to suspect, but whether, on an objective
approach, he in
fact had reasonable grounds for his suspicion.
[2]
[15] It is trite that the onus
to justify both the arrest and the detention rests on the defendants.
[16] In an attempt to discharge
the onus the defendants relied on the evidence of Sergeant Manco, the
second defendant. He testified
that he is a detective on the South
African Police Services and stationed at Madeira Police station in
Mthatha. That he was the
Investigating Officer of CAS 349/07/14
involving allegations of assault, malicious injury to property and
pointing of a firearm.
That the complainant in the case is Xola Bili
and that the plaintiff was the suspect. He further testified that the
incident allegedly
took place in Mthatha next to Circus Triangle on
31 July 2014.
[17] He further testified that
he had been looking for the plaintiff since July 2014 but was
advised, when he went to the plaintiff’s
home at Corana to look
for that he was not well and was in Johannesburg, that he only went
to look for him once and only kept telephone
contact with the
plaintiff’s brother and he never applied for a warrant for the
entire period of 7 months that he had been
waiting for the plaintiff.
There is also no evidence that he ever asked for the plaintiff’s
telephone numbers and attempted
contact the plaintiff.
[18] He testified that on 27
March 2015 he received a telephone call from Xola Bili who advised
him that the plaintiff was due to
appear at Ngqeleni Magistrates’
court in the same case that the said Xola Bili was to appear. At the
time he received the
telephone call he was at Madeira Police station
in Mthatha. He proceeded to Ngqeleni where he found the plaintiff and
Xola Bili.
He then arrested the plaintiff for allegedly having
committed malicious injury to property. He testified that the
plaintiff did
explain to him that the case at Ngqeleni arose out of
the same incident as the one he was being arrested for and in a way
asked
him to look at the Ngqeleni case but he refused to do so. He
said he did not care about it as it did not concern him.
[19] He testified that from
Ngqeleni to Mthatha plaintiff drove behind them. Plaintiff was, at
the time, in the company of his legal
representative. At Madeira
Police station, he again advised plaintiff of his rights and
thereafter took him to Central police station
to detain him. He did
not give any reasons why he saw it necessary to detain the plaintiff.
On Monday the 30
th
March 2015 he only delivered the docket
in court and did not attend court. No reasons were advanced why he
did not attend at court.
He only heard after three days that the
plaintiff was released and that plaintiff never appeared in court.
[20] Under cross examination he
was asked why he did not apply for a warrant he only stated that the
offence that the plaintiff
was alleged to have committed is a serious
offence and there was no reason to apply for a warrant because he is
able to arrest
for such cases.
[21]
The plaintiff’s evidence was in essence common cause with that
of the defendants, at least on the material issues. The
arrest and
the reasons therefore are common cause. Plaintiff further testified
that he advised the second defendant that the allegations
against him
were fabricated and even urged him to look at the docket in the
Ngqeleni case which the second defendant refused to
do. This was not
meaningfully disputed by the second defendant. In fact, he confirmed
having been referred to the Ngqeleni case
something which he ignored.
[22] Whilst I accept that the
second defendant is not obliged to scrutinise or analyse the cogency
of the explanation given to him
by an arrestee, it cannot be
reasonable for him to simply ignore and/or refuse to consider same.
[23] In
Raduvha v Minister of
Safety and Security 2016(10) BCLR 1326 at 1342
para.56 BOSIELO
AJ
, as he then was, stated:
“
Our
people deserve a police service which is steeped in a culture of
respect for human rights. This requires them in all their dealings
with society whilst executing their constitutional duties to be
guided by respect for human rights and strict observance of the
rights to human dignity, equality and freedom”
[24] In my view, the second
defendant’s actions towards the plaintiff are inconsistent with
this culture.
[25] In my view, the suspicion
that the plaintiff had committed malicious injury to property, in the
circumstances of this case,
was not based on reasonable grounds.
[26] In the circumstances I find
that the arrest of the plaintiff on 27 March 2015 was unlawful. It
must therefore follow that his
detention on 27 March 2015 to 30 March
2015 was also unlawful.
[27] In fact even if I am wrong
in finding the arrest to be unlawful, the defendant has failed to
justify the detention of the plaintiff.
Consequently, the defendant
cannot escape liability for such detention.
Quantum:
[28] I have already stated
herein above that the parties, at the beginning of the trial, engaged
each other and agreed on an amount
that would be reasonable
compensation in the event I find in favour of the defendants.
[29] I was advised during
argument that the parties agreed that compensation in the sum of R25
000.00 for each day of detention
was reasonable in the circumstances
of this case. They also agreed that the period of detention was three
days.
[30] I find no reason to differ
with the parties in this regard.
Costs:
[31] Regarding costs I see no
reason why the general rule that costs must follow the result should
not apply in this case.
[32] I engaged counsel for the
plaintiff during argument on why costs should not be awarded in the
Magistrates’ court scale.
He was constrained to concede that
such an award of costs is reasonable in the circumstances.
[33] In the circumstances I make
the following order:
33.1 The
plaintiff’s claim for unlawful arrest and detention succeeds;
33.2 The defendants are ordered
to pay the plaintiff a sum of R75000.00 (Seventy Five Thousand Rand
Only) in respect of his unlawful
arrest and detention from 27 March
2015 to 30 March 2015, jointly and severally the one paying the other
to be absolved.
33.3 The defendants shall pay
the costs of the action such costs to be taxed on a Magistrates’
court scale.
_____________________
Z.Z. MATEBESE
JUDGE OF THE HIGH COURT
(ACTING)
Appearances:
For the
plaintiff:
Mr
Krewu
Instructed by
Bulela Krewu Attorneys, Mthatha
For the defendant:
Adv. Nabela
Instructed by
State Attorney, Mthatha
Matter heard
on:
26 June 2018
Judgment delivered on:
27 June 2018
[1]
Duncan v Minister of Law and Order
1986 (2) SA 805
at 818G-H; Minister of Safety and Security v Sekhoto and another
2011
(1) SACR 315
para.[6] and [28]
[2]
Mawu v Minister of Police 2015(2) SACR 14
para.[22]