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2018
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[2018] ZALMPPHC 52
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Smit v Minister of Police (2423/2017) [2018] ZALMPPHC 52 (6 September 2018)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
(LIMPOPO
DIVISION, POLOKWANE)
CASE
NO: 2423/2017
Not
reportable
Not
of interest to other judges
Revised.
6/9/2018
In
the matter between:
EBEN
SMIT
PLAINTIFF
and
MINISTER
OF
POLICE
DEFENDANT
JUDGMENT
KGANYAGO
J
[1]
The plaintiff Eben Smit was arrested on the 30
th
November 2016 on a charge of assault common. The plaintiff and the
arresting officer agreed that the he will appear in court on
the 25
th
January 2017. He was released on warning. The Deputy Director of
Public Prosecutions declined to prosecute him and he was also
not
required to appear in court on the 25 January 2017. The plaintiff has
issued summons against the Minister of Police claiming
damages for
alleged unlawful arrest and detention in the sum of R450 000.00
[2]
The defendant denies that the plaintiff was arrested and detained.
The plaintiff testified that he is a practicing attorney
in Polokwane
since 1986. He is now 62 years of age. He was arrested without a
warrant.
[3]
He stated that on the 30
th
November 2016 he was called by warrant officer Buys to come to
Polokwane SAPS. He went to the SAPS, and on arrival warrant officer
Buys informed him that a charge of assault common has been opened
against him and he wanted to take a statement from him. He told
warrant officer Buys that he will make a statement in court.
[4]
According to the plaintiff, warrant officer Buys took his
fingerprints and took him to the holding cells where the main cell
door was locked. After the main cell door was locked, he remained
standing next to the counter in the reception area. After a while
he
was given a notice of rights in terms of the Constitution to show
that indeed he has been arrested.
[5]
He further stated that he was released after an hour. He was never
taken to the holding cells, but he was at all times at the
reception
area. The door leading to the reception area was locked and he could
not move out. He was told that he was placed under
arrest.
[6]
He stated that he is a senior attorney and was seen by people who
were coming in and out of the cells. After he was released
he felt
worthless, humiliated and being a criminal. His sugar level went
higher than normal. At the police cells there were lot
of people who
knew him and have seen him in the cells.
[7]
The plaintiff under cross examination stated that he was at the
police station for about an hour and was detained for about
30
minutes. He conceded that none of his personal belongings were taken
from him and further that he was not taken to the holding
cells. He
further conceded that his candidate attorney has laid a charge of
assault common against him with the SAPS, and that
warrant officer
Buys called him to the police station. He however stated that the
complaint by his candidate attorney was false.
[8]
Warrant officer Buys testified on behalf of the defendant. He
testified that on the 30
th
November 2016 an assault common case was opened against the
plaintiff. He phoned the plaintiff and explained the charges to him,
and told him to come to the police station.
[9]
He stated that the applicant came to his office at the police
station. On arrival he told the plaintiff that one of his employees
has laid a charge of assault against him. He explained to the
plaintiff the procedure that he was going to follow. He also told
the
plaintiff that he was not going to physically detain him but to write
him in the cell books in order to enable him to charge
him as he will
need a cell number when charging him.
[10]
He further stated that he took the plaintiff’s finger prints
and charged him whilst in his office. After that he went
to the cells
with the plaintiff and issued him with a written warning to attend
court. The cell book is been kept at the reception
area. Whilst he
was busy writing in the cell register, the plaintiff was consulting
with his clients in the holding cells. After
that he told the
plaintiff that he was released. The whole process took about an hour.
Before he charged the plaintiff, he explained
to him that he was
placed under arrest. However, the plaintiff was never detained. He
released him on warning and they also agreed
on the date of his first
appearance in court. Since it was during December, the plaintiff told
him that he had already arranged
to go on holidays with his family
and they agreed that he will appear in court during January 2017.
[11]
The witness was cross examined and he conceded that he had placed the
plaintiff under arrest. He conceded that the denial of
the arrest in
the defendant’s plea is misleading and wrong. He conceded that
when he told the plaintiff that “you are
released”, by
implication it meant that he could not have left before he was told
to do so. He conceded further that the
plaintiff was deprived his
freedom of movement and further stated that anyone who enters the
cell with an officer, is not permitted
to leave on his own.
[12]
As per the defendant’s amended plea, the arrest and detention
of the plaintiff has been placed in dispute. Therefore
the onus was
the plaintiff to establish the existence of the arrest and detention.
The plaintiff during his testimony submitted
a notice of rights in
terms of the constitution which is usually issued to a person who has
been arrested and about to be detained.
The plaintiff has duly signed
that document, and warrant officer Buys has countersigned the
certificate as the person who informed
the detainee of his rights and
that he understood its contents.
[13]
Warrant officer Buys when testifying, conceded that he had arrested
the plaintiff but dispute having detained him. He further
stated that
he had charged the plaintiff and released him on warning. Therefore,
in my view there are overwhelming evidence that
the plaintiff was
arrested without a warrant. Even on the defendant’s own version
the plaintiff was arrested without a warrant.
[14]
In terms of section 40 (1) (b) of the Criminal Procedure Act 51 of
1977 (“the CPA”) a peace officer may without
warrant
arrest any person whom he reasonably suspects of having committed an
offence referred to in Schedule 1, other than the
offence of escaping
from lawful custody.
[15]
It is trite that jurisdictional facts must exist before section 40
(1) (b) of the CPA can be invoked. Those jurisdictional
facts are
that the arrestor must be a peace officer, he must entail a
suspicion, it must be a suspicion that the arrestee committed
an
offence referred to in Schedule 1 of the Act, and the suspicion must
rest on reasonable grounds. If the jurisdictional requirements
are
satisfied the peace officer may invoke the power conferred by the
subsection, ie, he may arrest the suspect. (See
Duncan
v Minister of Law and Order
1986 (2) SA 805
(A) at 818 G-I).
[16]
It is common cause that Schedule 1 does not include assault common,
but list assault when a dangerous wound is inflicted. In
its plea the
defendant did not rely on section 40 (1) (b). A defendant who wishes
to rely on the section 40 (1) (b) defence, traditionally
has to plead
the four jurisdictional facts in order to present a plea that is not
excipiable. If the fifth fact is necessary for
a defence, it has to
be pleaded. This requires that the facts on which the defence is
based must be set out. (See
Minister of
Safety and Security v Sekhoto
2011 (1) SACR 315
at para 52).
[17]
Warrant officer Buys relied on the statement of the complainant to
arrest the plaintiff. He did not carry out the investigation
to
determine the veracity of the allegations contained in the
complainant statement before he effected arrest. Assault common is
also not listed as a Schedule 1 offence. Arrest without a warrant in
these circumstances was not lawfully permissible. I find that
the
plaintiff has succeed in proving that the discretion which was
exercised by warrant officer Buys was improper and therefore
his
arrest was wrongful and unlawful.
[18]
I turn to the alleged unlawful detention of the plaintiff. The
plaintiff claims that he was unlawfully detained for 30 minutes.
Warrant officer Buys testified that he was with the plaintiff for
about an hour. The plaintiff was called telephonically to report
at
the police station. On his arrival at the police station, the
allegations against him were explained and, upon being asked if
he
wished to make a statement, he declined and elected to make one in
court. He had been at the police station for about an hour.
Warrant
officer Buys conceded that before he told the plaintiff that he was
released, he could not have left on his own. The plaintiff
was issued
with document containing his constitutional rights, and those rights
were even explained to him. That document is reserved
for suspects
who have been arrested and about to be detained. I am therefore
satisfied that the plaintiff has discharged his onus
of prove and
have shown that he was detained. In my view, he was detained for an
hour, even though he was never locked up in a
holding cell. (See
De
Klerk v Minister of Police
[2018] ZASCA 45
(20 March
2018)
at
para 16).
[19]
Turning to quantum, in
De Klerk v
Minister of Police
supra,
the appellant was detained for two hours and not taken to the holding
cells before he appeared in court and was awarded R30 000.00
for
unlawful arrest and detention.
[20]
In
Minister of Safety and Security v
Tyulu
2009 (5) SA 85
(SCA)
the
respondent who was a magistrate was wrongfully arrested for being
drunk in public. He was detained for a few hours. The trial
court
took into consideration his age, the circumstances of his arrest, the
nature and short duration of his detention, his social
and
professional standing and awarded him R15 000.00.
[21]
In this matter I will take into consideration that the plaintiff was
unlawfully arrested without a warrant and detained for
an hour, his
age, the fact that he was not detained in the holding cells and his
professional standing. I am of the view that an
appropriate award is
the total sum of R20 000.00 for his unlawful arrest and
detention.
[22]
In the result I make the following order:
22.1.
The defendant is ordered to pay the plaintiff the sum of R20 000.00
in general damages in respect of the unlawful arrest
and detention.
22.2 The defendant to pay
the plaintiff’s costs on magistrate court scale as between
party and party.
_________________________
KGANYAGO
J
JUDGE OF THE HIGH
COURT OF SOUTH AFRICA, LIMPOPO DIVISION, POLOKWANE
APPEARANCES
For Plaintiff: Adv van
den Eende
Instructed by: Smit &
Maree Attorneys
For Defendant:
Instructed by: State
Attorney Polokwane
Date of Hearing: 13
th
August 2018
Date of Judgment: 6
th
September 2018