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[2017] ZAGPPHC 137
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Koekemoer v Minister of Police (9326/2015) [2017] ZAGPPHC 137 (10 March 2017)
IN THE
HIGH COURT
OF SOUTH AFRICA
(GAUTENG DIVISION,
PRETORIA)
10/03/2017
CASE
NO: 9326/2015
Reportable: No
Of
interest to other judges: No
CHRISTOFF
KOEKEMOER
PLAINTIFF
and
MINISTER OF
POLICE
DEFENDANT
JUDGMENT
MOLEFE J
[1] The plaintiff in this
action seeks damages against the defendant arising out of his arrest
on 12 August 2014 in Pretoria North,
his subsequent detention and the
resultant withdrawal of the charges against him on 29 September 2014.
[2] The plaintiff alleges
that his arrest in respect of the charge of possession of stolen
property and his subsequent detention
initiated by the members of the
defendant acting within the course and scope of their employment with
the South African Police
Services ("SAPS") was unlawful.
Plaintiff pleaded that his arrest and detention by the SAPS officer
were unlawful in
that it was effected without a warrant and did not
comply with the laws regulating an arrest without a warrant and
further that
it was effected arbitrarily.
[3] The defendant denies that
the arrest and detention were unlawful and avers that the defendant
acted in terms of section 40 (1)
(e) of the Criminal Procedure Act 51
of 1977 ("CPA") when affecting the arrest. This section
provides that a person found
in possession of property reasonably
suspected to have been stolen or acquired by dishonest means can be
arrested without a warrant.
The defendant pleaded that the plaintiff
was arrested by Constable Moseme for allegedly committing an offence
of possession of
suspected stolen property in contravention of
section 36 of the General Amendment Act, Act 62 of 1955 which
provides that:
Failure to give a
satisfactory account of possession of goods
"Any person who
is found in possession of any goods, other than stock or produce as
defined in Section 1 of the Stock Theft
Act, 1959 (Act 57 of 1959) in
regard to which there is a reasonable suspicion that they have been
stolen and is unable to give
a satisfactory account of such
possession, shall be guilty of an offence and liable on conviction to
the penalties which may be
imposed on a conviction of theft
[1]
".
[4] Section 40 (1) (b) of the
CPA provides that a peace officer may without a warrant arrest any
person whom he reasonably suspects
of having committed an offence
listed in Schedule 1. There is no doubt that the crime of possession
of suspected stolen goods that
was investigated and for which the
plaintiff was arrested is listed in Schedule 1 of the CPA.
[5] It is common cause that
the plaintiff was on 12 August 2014 arrested by the SAPS officers
without a warrant at Just Metals Scrapyard
where he is employed as a
workshop manager. He was detained in the police cells at Pretoria
North Police Station and was released
on the same day at
approximately 17h30.
It is further common cause that the
charges against the plaintiff were withdrawn on 29 September 2014 as
the investigating officer
found that the plaintiff's explanation of
how he got into possession of the copper was reasonable.
[6] The issues to be
determined by the court are:
6.1
was the plaintiff's arrest and detention lawful or unlawful?
6.2
if unlawful, the quantum of the plaintiff's damages.
The burden to prove that the arrest was
justified and not wrongful rest upon the defendant and the duty to
begin was by agreement
between the parties imposed upon the
defendant.
[7] Constable Lehlohonolo
Mosebe testified on behalf of the defendant. He testified that on 12
August 2014, he, together with his
team were making routine
inspections of scrapyards and was posted by Warrant Officer de Witt
to do a routine check at Just Metals
Scrapyard in Pretoria North.
They arrived there at 11h40 and requested the plaintiff to allow them
to tour the premises for the
inspection. During the inspection they
found copper cables packed and stored at the premises. Mosebe asked
the plaintiff to explain
the origin of the copper cables and to
produce the documents relating to the cables but the plaintiff failed
to explain to Mosebe
the origin of the copper cables nor to produce
the documents relating to the cables. One of the team members,
Mr Frans
Puta allegedly from Eskom informed Mosebe that the
cables were used by Eskom and that scrapyards were not allowed to
purchase them.
Mosebe testified that he then had
reasonable suspicion that the copper cables were stolen and he
arrested the plaintiff as the plaintiff
was unable to neither provide
an explanation of the possession nor to provide the relevant
documentation. Mosebe further testified
that he was the arresting
officer and not Warrant Officer de Witt. Plaintiff was taken to
Pretoria North police station where he
was detained in the police
cells. Under cross-examination Mosebe testified that he weighed the
copper cables and not de Witt but
he could not explain why de Witt's
signature appeared on the purchase note of the relevant cables.
[8] Plaintiff’s version
of the events leading to his arrest was that on 12 August 2014 at
approximately 10h15, six armed police
officers in uniform in four
marked police vehicles arrived at Just Metals Scrapyard. Warrant
officer de Witt informed him that
he was in charge of the routine
inspection of the scrapyard and informed the plaintiff that they are
going to arrest the plaintiff.
During their search they found a bag
of shiny copper cables and a Mr Puta who was accompanying the police
informed the plaintiff
that the cables were illegal as they belonged
to Eskom. De Witt requested the documents and the register in terms
of the
Second Hand Dealers Act 6 of 2009
with the particulars
regarding the acquisition or disposal of the second hand copper
cables. Plaintiff testified that he got the
purchase notes of the
copper cables but when he handed them to de Witt, he refused to
accept the documents. The copper was weighed
at 319 kg at the
scrapyard premises and de Witt arrested the plaintiff for possession
of stolen copper cables. Plaintiff testified
that the copper cables
found at the scrapyard was commonly used by electricians and could be
purchased anywhere. The plaintiff
was taken to Pretoria North Police
Station in a police vehicle and was detained in a police cell with no
rest rooms with eight
other inmates. He was released on the same day
at approximately 17h30.
[9] Plaintiff testified that
his arrest and detention and having been accused of possession of
suspected stolen copper cables was
painful and embarrassing and his
dignity was degraded. Under cross-examination the plaintiff denied
that Constable Mosebe was the
arresting officer but testified that
the Warrant Officer was the arresting officer and that Mosebe was on
that day, just a by-stander.
Mutually Destructive
Versions
[10] The versions of the
plaintiff and the defendant are irreconcilable in material aspects
regarding how the arrest was made and
are mutually destructive. The
plaintiff’s version is that Warrant Officer de Witt was in
charge of the inspection and was
the arresting officer and he refused
to accept the documentation from the plaintiff.
The defendant's version is
that Constable Mosebe was the arresting officer and that the
plaintiff refused to produce the documentation
to explain possession
of the copper cables.
[11] The technique generally
adopted by the courts in resolving factual disputes when dealing with
two irreconcilable versions is
set out in
Stellenbosch Farmers'
Winery Group Limited and Another v Martell ET Cie and others
[2]
.
The court should make findings on the credibility and reliability
of factual witnesses and on the assessment of probabilities. An
evaluation on the probability or improbability of each party's
version should be determined on the disputed issues. After the
assessment the court will determine whether the party burdened with
the
onus
of proof, has succeeded in discharging it.
[12]
The defendant's version is in my view flawed and unreliable in
that it does not make sense that De Witt was not present at the
inspection
although his signature is on the purchase note dated 12
August 2014 at 12h06 when the copper was booked out from the
scrapyard.
Furthermore, it is highly improbable that the plaintiff
would refuse to give an explanation and documentation of the origin
of
the cables to the arresting officer whilst faced with a possible
arrest.
I therefore find the plaintiff's version
on how the arrest occurred to be more probable.
[13]
An
arresting officer is required to form a reasonable suspicion of a
commission of an offence before arresting an individual, which
arrest
effectively deprives the individual of his liberty. The question
whether Constable Mosebe or/and Warrant Officer de Witt
had a
reasonable suspicion in the circumstances that plaintiff committed
the offence must be considered by taking into account
that:
"Suspicion
in its ordinary meaning is a state of conjecture or surmise where
proof is lacking: 'I suspect but cannot prove'.
Suspicion arises at
or near the starting point of an investigation of which the obtaining
of prima facie proof is the end
[3]
".
[14]
The arresting officer in this case refused to accept the
documentation from the plaintiff which would have explained the
acquisition
of the suspected stolen cables. It is common cause that
the investigating officer, Sergeant Ngobeni found that Mr Puta is
neither
an expert nor an Eskom employee but is an independent
contractor and could not give expert evidence on the identity and the
exact
value of the cables. Sergeant Ngobeni found that the
plaintiff's explanation of how he got to be in possession of the
copper is
reasonable and that there were no prospects of a successful
prosecution against the plaintiff.
[15]
In
my view, the arresting officer
in casu,
had no sufficient
grounds for the reasonable suspicion that the plaintiff has committed
the offence. The arresting officer had a
duty to make enquiries about
the acquisition of the copper, to assess and analyse the information
at his disposal before the arrest
and he failed to do so. The
suspicion that the plaintiff was in possession of suspected stolen
goods was in my view not based on
reasonable grounds and was
therefore unlawful.
Quantum of Damages
[16]
When assessing damages in matters such as the present, the
evaluation of the personal circumstances of the plaintiff, the
circumstances
around the arrest and the nature and duration of the
detention is taken into account
[4]
.
The testimony of the plaintiff about his personal experiences, the
conditions that prevailed in the police cells and what effect
the
arrest had on him is also taken into account. The plaintiff, a
workshop manager, was 36 years old when he was arrested and
was
detained for approximately five and a half hours.
[17]
The purpose of an award for general damages in the context of
matters such as the present is to compensate the claimant for
deprivation
of personal liberty and freedom as well as the mental
anguish and distress. The primary purpose is not to enrich the
claimant but
to offer him or her
solatium
for his or her
injured feelings
[5]
.
[18]
Although the determination of an appropriate amount of damages
is largely a matter of discretion, some guidance can be obtained by
having regard to previous awards made in comparable cases.
Plaintiff's counsel referred me to the relevant comparisons made in
Minister of Safety and Security v Seymour
[6]
:
"The
assessment of awards of general damages with reference to awards made
in previous cases is fraught with difficulty. The
facts of a
particular case need to be looked at as a whole and few cases are
comparable. They are a useful guide to what other
courts have
considered to be appropriate but they have no higher value than
that".
[19]
As
indicated above, awards made in previous cases can only serve as
guidelines. An appropriate award will ultimately depend on the
particular facts and circumstances of each case. I have taken into
account the circumstances of the arrest, the duration of the
detention, the indignity of being confined in a police cell, the
personal circumstances of the plaintiff, the awards made in previous
comparable cases and the gradual devaluation of the currency. Taking
into account all the circumstances in this case, I deem R30
000, 00
to be a just and fair amount of damages for the plaintiff.
Costs
[20] Although the claim in
the summons is R100 000, 00 which is a quantum of damages which falls
within the Magistrate's court monetary
jurisdiction, the plaintiff
seeks costs on the High Court scale. Plaintiff counsel submits that
the plaintiff's constitutional
rights were violated and that
justified the institution of proceedings in the High Court, although
the quantum of the damages falls
within the magistrate court monetary
jurisdiction.
[21]
The purpose of the costs order is to indemnify a party for the
expenses to which he has been put through of having to institute or
defend the action. The fundamental rule is that the award of costs is
always within the discretion of the court. Even the general
rule that
costs follow the event or result, is subject to the overriding
principle that the court has a judicial discretion in
awarding costs.
[22]
In
van der Merwe v Schraader
[7]
it was decided that a party who sues in the High Court for an amount
that falls within the jurisdiction of a Magistrate's court,
may be
awarded costs in the High Court scale, depending on the
circumstances. In this case, despite the fact that the amount claimed
in the summons was clearly within the Magistrate's court monetary
jurisdiction, the summons were issued in the High Court.
[23]
Far too many cases are brought to the High Court with the sum
initially claimed falling comfortably within the District Magistrate
and Regional court monetary jurisdiction. This practice should be
discouraged by sending a clear message to legal practioners to
give
careful considerations to this aspect before proceedings are
instituted. Although the plaintiff has attained a measure of
success,
I am of the view that this action should not have been brought in
this court in the first place. In the circumstances,
I decline to
award costs on the High Court scale.
[24]
In
the result, the following order is made:
24.1
The defendant is ordered to pay the plaintiff an amount of
R30 000.00 for unlawful arrest and detention;
24.2
interest on the amount shall run at the prescribed rate
from date of judgment to date of payment;
24.3
the defendant is ordered to pay costs of the action on a
magistrate court scale.
________________________
DS MOLEFE
JUDGE
OF THE HIGH COURT
APPEARANCES:
For the
Appellant
:
Adv. J Groenewald
Instructed
by
:
Prinsloo
Attorneys Inc.
For the
Respondent
:
Adv. C Lithole
Instructed
by
:
State
Attorneys
Date
Heard
:
15, 16
and 24 February 2017
Date
Delivered
:
10 March 2017
[1]
Section 36 amended by section 4
of Act 18 of 1996
[2]
2003 (1) SA 11
SCA at paragraph
5
.
[3]
Shabaan Bin Hussien and Other v
Chong Fook Kam and Another
[1969] 3 ALL ER 1626
(PC) at 1630.
[4]
See Ngcobo v Minister of Police
1978 (4) SA 930
D at 935 B-F.
[5]
Minister of Safety v Tyulu
2009
(5) SA 85
(SCA) at par 26.
[6]
2006 (6) SA 320
(SCA) at 325 par
17.
[7]
1953 (2) SA 339
(E)