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[2017] ZAGPPHC 881
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Dlamini v Minister of Police and Another (52293/2015) [2017] ZAGPPHC 881 (24 March 2017)
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IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
REPUBLIC
OF SOUTH AFRICA
Date
of hearing: 15 and 16 March 2017
Date
of judgment: 24 March 2017
Case
number 52293/2015
Not
reportable
Not
of interest to other judges
Revised.
In
the matter between:
MICHAEL
DLAMINI
Plaintiff
and
THE
MINISTER OF
POLICE
First
Defendant
NATIONAL
COMMISSIONER OF THE
SAPS
Second
Defendant
JUDGMENT
BRENNER,
AJ:
1.
The plaintiff, Michael Dlamini ("Dlamini"),
sued the Minister of Police as first defendant, ("the
Minister"),
and the National Commissioner of the South African
Police Services ("the SAPS"), ("the Commissioner"),
as second
defendant, for damages of R3,5 million for unlawful arrest,
and R3,5 million for unlawful detention.
2.
The arrest occurred on 21 May 2013 at 10h05 at
the Virginia police station, in the Free State province, without
warrant. Dlamini
was detained at the police holding cells until 08h00
on 23 May 2013, when he made his first appearance in the Virginia
Regional
Court.
3.
The defendants admit that the arrest was without
warrant, but aver that the arrest was lawful, in that a reasonable
suspicion was
formed that Dlamini had committed rape, an offence
listed in schedule 1to the Criminal Procedure Act, 51 of 1977 ("the
CPA").
4.
Dlamini remained in custody at a local prison
from 23 May 2013 until about 19 or 20 May 2015, when he was released
after being acquitted
on trial. He had applied for bail, but his
application was refused.
5.
In amplification of their denial that the arrest
and detention were unlawful, the defendants aver in their plea that:
a.
On
17 May 2013, a charge of assault was preferred against him by the
same complainant in the rape case (N. S. ("S.")),
and this
case was pending when Dlamini appeared in Court on the rape charge;
b.
S.
had previously obtained a protection order against Dlamini in terms
of the
Domestic Violence Act, 116 of 1998
;
c.
On
the evening of 20 May 2013, Dlamini had phoned S. to threaten her
with death;
d.
On
23 May 2013, he had sent her an sms threatening to kill her and her
son;
e.
He
had previous convictions relevant to the rape offence, as well as the
pending charge of assault.
6.
Dlamini's case was based on his arrest on 21 May
2013 and subsequent detention for almost two years pending the rape
case. But he
had only cited the Minister and the Commissioner of
Police, and not the NDPP or the Department of Justice. His case had
to be confined
to the arrest on 21 May 2013. He had made no claim for
malicious prosecution by the prosecutor or unlawful detention by the
Court.
7.
In argument post the hearing, Counsel for Dlamini
conceded that the damages claim against either defendant could not
cover the two
year period during which he was in custody. He
contended, however, that the damages claim should be extended beyond
the two days
in the police cells in Virginia, to the eventual date of
hearing of his bail application. This because the investigating
officer
should have made himself available on the date of the first
appearance in Court on 23 May 2013 to dispose of the bail application
on this date. Instead, he failed to do so and the hearing occurred
about one week afterwards. This issue is traversed below.
8.
Dlamini was arrested without warrant, and this
occurred in terms of
Section 40(1)(b)
of the CPA. The lawfulness of
the arrest being the fundamental issue, the defendants accepted the
onus of proof. Captain Barend
Strydom ("Strydom") testified
on their behalf and Dlamini testified on his own behalf.
9.
The gist of Strydom's evidence is as follows.
Strydom had been employed by the SAPS for 29 years, since 21 December
1987, and was
appointed a Captain on 1 October 2000. On 20 May 2013,
he was on standby duty for the Virginia Detective Service, having
been stationed
at this unit since June 2006.
10.
He received a phone call at about 18h00 on 20 May
2013, from an official at the Virginia Community Service Centre, the
new appellation
for the Virginia police station. He was informed of
the opening of a rape case at the station. When he arrived there, he
perused
the contents of the docket which at that stage contained only
the complaint affidavit of complainant S. He testified that he read
through her affidavit and satisfied himself that all the necessary
elements of a rape offence had been mentioned by her. He met
S., who
was present at the station.
11.
The contents of S.'s affidavit are quoted
verbatim below:
"I N. S. states
under oath in English
I am an Indian African
female age 34 10.......residing at no […] B. Street Virginia
with cell....and I am unemployed.
On Monday at about
12:00 on 2013-05-20 I went to fetch my stuff at no […] K.
where I was staying. I was working for Visayani
Security and we were
staying at the same company house with my ex boyfriend.
On the same day at
about 15:00 I received a message from my ex boyfriend via Mxit
that I took his belt by mistake. I checked
the belt inside my bags
and found it, so we agreed on meeting at the Methodist church in
Kommando Street so that I can give him
his belt. We meet there at the
Methodist Church and before I even gave him his belt he asked to talk
to
me
about something
else.
Then he asked me to
walk with him through the street as we doesn't want his Manager to
see him with me. and we walked down the street
on Kommando until the
T-junction with Highlands Avenue. We stand next to the road and he
asked me to sit there at the empty house
at Highlands Avenue. We went
and sit outside that house but at the back of it and we were still
talking.
After that he told me
that he wants to sleep with me for the last time and I told him that
he knows that we are no longer together.
I will never do that and I
am not that kind of a person who sleeps on the empty houses with a
man. He then pushed me against the
wall and I
was
fighting back until I fell on the ground. I told him to leave
me
then he jumped on top of
me.
He puts his arm on my throat and I couldn't
scream and he lifted up my skirt and shift my panty and he put his
penis inside my vagina.
I tried to push him away then he removed his
penis from my vagina and put it in my anus and it was very painful.
Before he put
his penis in my vagina he was wearing a condom then
when he forced it in the anus. The condom burst and I still tried to
push him
then he removed the penis from the anus back to the vagina
then he sperms without a condom.
After that he stood up
and left
me
there. The
suspect is my ex boyfriend Michael Dlamini residing at no […]
K. Street Virginia and he is working at Visayani
Security. There are
no witnesses in this incident as we were only two at that time. And I
am two months pregnant. After the suspect
raped
me
he left the condom hanging in my vagina and I
removed it and took it to the police. And I did not give anyone
permission to rape
me
and
I request further police investigation and prosecution."
12.
Strydom introduced himself to S. and interviewed
her. He said that she was in a state of shock, and was emotional and
crying a lot.
She appeared to be depressed. She informed him that she
had preferred an assault charge against Dlamini a few days before the
alleged
rape. He did not make further enquiries about the assault
charge, nor did he attempt to access the assault docket while at the
police station. S. did not mention anything about the assault charge
being withdrawn. Strydom conceded that it made no sense that
S.,
after her alleged assault a few days before the rape, had still seen
fit to accompany Dlamini to the back of an empty house,
a lone, to
speak to him.
13.
Considering that S. referred to Dlamini as her
"ex-boyfriend", he could not recall asking S. pertinent
questions as to
when she broke up with Dlamini and when they had last
had consensual sex with one another. He consistently maintained that
in his
view, the contents of S.'s affidavit and his observations of
her state of trauma were sufficient grounds to arrest Dlamini and
that no further enquiries were necessary.
14.
Strydom contacted a standby member of the Family,
Child and Sex Unit ("the FCS") to arrange for S. to be
medically examined.
He handed her over to the investigating officer,
Ishmael Sehume ("Sehume" or "the IO"). Later on
in his office,
he completed a written report containing details of
the complaint. This report indicated that he had observed no injuries
on S..
Strydom confirmed this fact in evidence.
15.
Strydom said that he was convinced from S.'s
demeanour that she was a victim of rape. He motivated his suspicion
by referring to
a number of theoretical courses he had attended, in
1991, 2001, 2003, 2007 and 2012, on psychologically motivated crimes.
He testified
that he had never encountered a situation where a rape
complainant had not actually been raped.
16.
On the same evening, Strydom said he learnt that
Dlamini was employed as a security guard by Hannes Potgieter
("Potgieter").
Strydom knew Potgieter. He phoned him to
inform him of the rape charge against Dlamini. He asked where he
could find him. Potgieter
declined to disclose Dlamini's whereabouts
because Dlamini was on guard duty and Potgieter had no relief guard
to substitute for
Dlamini. Potgieter informed Strydom that he would
bring Dlamini to the police station the following morning after
Dlamini had finished
guard duty for the night.
17.
At about 08h00 on 21 May 2013, Potgieter and
Dlamini arrived at the station. Strydom said he read his
section 35
constitutional rights to Dlamini and that he told Dlamini he was
going to be arrested on a rape charge. He testified that Dlamini
gave
no explanation about the charge of rape nor did he proffer an alibi.
Strydom said that he was not informed of the events of
the morning of
20 May 2013, when S.'s personal effects were removed from Dlamini's
room, in the presence of Potgieter. He contacted
an FCS officer to
apprise him of the situation. He thereupon arrested Dlamini and took
him to the police cells. The police records
indicate that this
occurred at 10h05. This was the last time that Strydom had any
dealings with Dlamini. He was not made aware
of the outcome of the
case.
18.
Strydom arrested Dlamini on the strength of S.'s
affidavit. At the time of arrest, no warning statement had been taken
from Dlamini.
Nor did Strydom have a form J88 or medical report of
any nature to record the medical examination of S. It merits mention
that
the J88 form was not discovered by the defendants and was not
contained in the docket discovered by them. I was informed by the
defendants that the form had been mislaid. Dlamini did not have a
copy.
19.
One day after his arrest, that is, at 15h08 on 22
May 2013, Dlamini signed a warning statement. The contents read:
"My girlfriend N.
went to open a rape case against me and to tell the truth I have not
been with the lady and even the scene
she referred to is total lie.
N. was fired at
Visayani Security and she did open a case of assault common against
me. as such she was told to vacate the premises
which the company
hires for us to stay.
I have at no stage had
sexual intercourse at that given time."
20.
Dlamini testified that he and S. had been in a
relationship for about one year and four months before they had
broken up on 19 May
2013. They had lived together, with her ten year
old son, in a room at a house provided by Vusayani Security in
Virginia for some
of its employees. About six people lived in the
house at the time of his arrest. He asserted that he had neither
raped nor assaulted
S., as alleged by her.
21.
He had caught S. in the company of another man,
in Virginia, on both 16 and 17 May 2013. Following an argument about
this on 17
May 2013, S. had preferred a charge of assault against him
on 17 May 2013. He denied having assaulted her. He testified that she
would verbally abuse him and scream at him when they argued but that
he never laid a hand on her. He was arrested that same day
and went
to court on 19 May 2013, when he was released on warning and told to
return to court on a date he could not recall. However,
on the same
day, he was given a protection order to sign. He signed the document
but was not given a copy. This document was not
produced in evidence.
S. informed him that the charge had been withdrawn against him and he
believed her.
22.
Although she said she had withdrawn the charge,
he had terminated their relationship on the afternoon of 19 May 2013.
His reasons
for terminating relations were various. He would give
money to S. to pay accounts and she would fail to pay them. He had
caught
her in the company of other men. He had secured employment for
her at Vusayani Security as a guard. She had no respect for her work
and would often abandon her post. Potgieter had fired her in mid
April 2013. She had continued to live with Dlamini with his blessing
as it was the policy of the firm to permit partners to live with
personnel at the house.
23.
He told S. that she should vacate their room the
following day. She appeared to agree with him that their relationship
should come
to an end, and matters appeared amicable. She said she
and her son would leave the following morning for Stanger, to live
with
her parents. That same afternoon, on their return to his room,
they had consensual sex, during which he used a condom. He normally
used a condom when they had sex. When this happened, either one of
them would remove it and flush it down the toilet. On this afternoon,
he did not remove the condom.
24.
Dlamini was on guard duty from 18h00 on 19 May
2013 until 06h00 on 20 May 2013. On returning home, he had asked
Potgieter to accompany
him to the room to ensure that S. vacated it
without incident. He wanted Potgieter to be a witness in case another
charge of assault
was laid against him. On arrival at about 07h00, S.
was not there and her personal effects were still in the room. Both
Potgieter
and Dlamini removed her effects and placed them outside the
house. Potgieter left and Dlamini went to sleep.
25.
A few hours later, S. arrived at the house. She
knocked on the window of the bedroom and swore at Dlamini,
complaining about his
having removed her effects from their bedroom.
He refused to let her into the house. At about 10h00 or 11h00 she
arrived with some
policemen, having informed them that she had been
unlawfully evicted. Dlamini asked one of the policemen to phone
Potgieter. After
doing this, the policeman told S. that she no longer
had any right to stay in the house and that if she persisted, a
charge of
trespass could be laid against her.
26.
The police left. S. entered the house and stole
two pairs of jeans, an iron and a kettle which belonged to him. He
did not contemplate
laying a charge of theft against her. She told
him that she was going to show him who she was, and left with her son
and her personal
goods. Dlamini said that this was the last time he
saw her or spoke to her. This is presumably other than when he saw
her in court
during the rape trial.
27.
Dlamini denied having made any threatening calls
to S. or sending her threatening messages after his arrest on 21 may
2013. His
cellphone had been removed from his possession on his
arrest.
28.
At about 22h00 on 20 May 2013, Potgieter phoned
him to tell him of the rape charge by S. and to arrange to take him
to the police
station the following morning. They arrived at the
station together at about 09h00 on 21 May 2013. They proceeded to
Strydom's
office where the latter informed them of the rape case.
Dlamini testified that Potgieter explained to Strydom what had
occurred
on the morning of 20 May 2013, that Potgieter had assisted
with the removal of S.'s goods from the house, to safeguard her
laying
another assault charge against Dlamini.
29.
Dlamini testified that he told Strydom that he
did not assault S. nor did he rape her. Strydom told him to give his
explanation
to the IO. Dlamini said Potgieter complained about why
Strydom still intended to lock up Dlamini despite what they had told
him.
Strydom replied that "there was nothing" he could do.
30.
Dlamini's first appearance in Court was at about
08h00 on 23 May 2013. On this date, the case was postponed for about
seven days
for a bail hearing, and that day he was transferred to the
local prison. Bail was eventually applied for and refused. The case
went to trial. After S., another witness whose name he could not
recall, and a forensic nurse, and Dlamini had given evidence, Dlamini
was acquitted and released on 19 or 20 May 2013. There was never a
trial concerning the assault charge preferred on 17 May 2013.
31.
In the police docket, there is a typed note above
the signature of the prosecutor dated 20 May 2013 which reads:
"Accused found
not guilty and discharged.
Given benefit of the
doubt.
Court held that
complainant was not a credible witness."
32.
Dlamini did not return to his former employment
after his release. He resorted to performing piece work such as
driving and gardening.
33.
The grounds upon which Strydom harboured his
suspicion of the commission of rape against S. were not reasonable.
Strydom rested
his laurels on the various theoretical courses he had
attended which he appeared to believe had qualified him to test the
veracity
of a rape complainant's version by her statement and her
demeanour. These factors simpliciter seemed to him to be definitive
of
the enquiry. He had noted no visible injuries on S. despite her
allegations that Dlamini had held her by her throat, and that she
had
been forcefully raped, twice vaginally and once anally. Considering
this objective fact, he could and should have awaited the
outcome of
the medical examination before contemplating arrest. The medical
report would have assisted in the independent determination
of
whether S. had sustained injuries consistent with vaginal and anal
rape.
34.
He should have enquired about the circumstances
which had culminated in their breakup, and when this had taken place,
to satisfy
himself that there was no ulterior motive behind the
charge. He should have had regard to the contents of the assault
docket. By
that stage, a medical report would probably have been
obtained to verify S.'s alleged injuries in the assault.
35.
Strydom and Dlamini both confirmed that Potgieter
accompanied Dlamini to the station on the morning of the arrest.
Strydom said
they arrived at 08h00 while Dlamini said it was 09h00.
The arrest time is documented in the police records as 10h05. Even on
Dlamini's
version, there was a window of at least one hour before he
was arrested by Strydom.
36.
Counsel for Dlamini did not submit to Strydom
that Dlamini and Potgieter had explained the events of 20 May 2013
fully to Strydom
prior to the arrest. When Dlamini testified about
his and Potgieter's conversation with Strydom, Counsel for the
defendants did
not object.
37.
Nevertheless, Ibelieve that Ican safely draw the
inference that some conversation concerning the eviction of S. on the
previous
morning probably occurred, such as would have elicited some
circumspection in the mind of an arresting officer as to the
complainant's
motives. But Strydom probably closed his mind to this
information.
38.
Even assuming that no such conversation occurred,
it is plain that Strydom had already developed a misplaced
confirmatory bias against
Dlamini by the time of his arrest, not even
awaiting the outcome of the medica l examination for some form of
independent corroboration
of physical injuries consistent with
vaginal and anal rape.
39.
Strydom conceded in court that it made no sense
that S., after her alleged assault a few days before the rape, had
still seen fit
to accompany Dlamini to the back of an empty house,
alone, to speak to him. On the inherent probabilities, she would have
been
fearful of going to any private place alone with Dlamini after
he had previously assaulted her three days beforehand.
40.
Strydom did not testify that Dlamini had any
previous convictions. The only criminal case he knew about was the
one of the pending
assault on S.. No SAP 69 form or any other proof
was tendered by the defendants to support this. The allegation by the
defendants
that Dlamini had previous convictions consistent with the
offences of rape and assault was unproven and accordingly vexatious.
41.
Dlamini proved to be an unflappable witness. He
was credible, honest and consistent in his version in all material
respects, and
remained so despite rigorous cross examination. His
recollection of events was clear and coherent and he presented as a
genuine
and sincere witness. It was undisputed that, at the time of
his arrest, he was employed and had a fixed address. He volunteered
to go to the police station.
42.
Dlamini said he made exculpatory statements to
Strydom before his arrest. I find this to be more probable than not.
Moreover, it
is also highly probable that Potgieter corroborated his
version. Strydom and Potgieter knew one another. There was at least
one
hour available for this to have occurred before Strydom arrested
Dlamini. The statements about the events which preceded the
preferring
of the rape charge should at least have given Strydom
pause to question the motives of S.. Significantly, Dlamini gave an
exculpatory
statement in his warning statement the following day.
43.
In the result, Strydom's arrest of Dlamini on 21
May 2013 was unlawful, and Dlamini's subsequent detention until 08h00
on 23 May
2013 was unlawful. Hereafter, whatever occurred in Court
and in regard to the prosecution of the case was out of the control
of
the police.
44.
The Minister cannot be held accountable for any
events post 08h00 on 23 May 2013. The delay in the pursuit of the
bail application
is not attributable to the police but to the court
system. Neither the NDPP nor the Minister of Justice was a party to
this action.
45.
As was
stated in
Minister of Police v du
Plessis 2014 C7K6l QOD 1 SCA at paragraph 28:
"Once an arrestee
is brought before a court, in terms of
s50
of
the Criminal Procedure Act 51 of 1977 (CPA), the police's authority
to detain, inherent in the power of arrest, is exhausted....
As
pointed out by Campbell AJ in the court below, before the court makes
a decision on the continued detention of an arrested person
comes the
decision of the prosecutor to charge such a person."
46.
The cause of action in the arrest is based on the
action iniuriarum, for which general damages may be claimed. Special
damages may
be claimed under the lex Aquilia. In casu, the arrest
occurred under section 40(1)(b) of the CPA. The onus is on the
Minister to
prove the lawfulness of the arrest. Section 40(1)(b)
provides:
"40(1) A peace
officer may without warrant arrest any person-
(b) whom he reasonably
suspects of having committed an offence referred to in Schedule 1,
other than the offence of escaping from
lawful custody."
47.
Schedule 1 to the CPA includes, inter alia:
"Rape, or
compelled rape as contemplated in
sections 3
and
4
of the
Criminal
Law (Sexual Offences and Related Matters) Amendment Act, 2007
,
respectively.
Sexual assault,
compelled sexual assault or compelled self-sexual assault as
contemplated in
section 5
,
3
>6
or
3
>7
of the Criminal Law
etc, respectively."
48.
In
Hiemstra's Criminal
Procedure Lexis Nexi's Issue 9 at 5
7,
the following is stated:
"In
Duncan v Minister of Law and Order
1986 { 2) SA 805 CA) @ 818 F-H
the
jurisdictional facts which must exist before the power conferred by
section 40 (1) (b) may be invoked, were set out as follows
(1) the
arrestee must be a peace officer, (2) the peace officer must
entertain a suspicion, (3) it must be a suspicion that the
arrestee
committed a Schedule 1 offence (other than escaping) and (4) that
suspicion must rest on reasonable grounds.
49.
There is no fifth jurisdictional requirement for
the arresting officer to consider whether there are less invasive
options to bring
the suspect before Court. Vide
Minister
of Safety and Security v Sekhoto and Another 2011 (1 ) SACP 315 (SCA)
par 2
2,
where
the SCA overruled the finding that such requirement existed in
Louw
and Another v Minister of Safety and Security and Others 2006 C2)
SACP 1 78 T at 1 86a-187e.
50.
Arrest without warrant was summarised in
Sekhoto
as follows (vide
Hiemstra
op cit at 5-8)
:
(i)
the jurisdictional prerequisites for
S 40
(1) (b)
must be present;
(ii)
the arrester must be aware that he or she has a
discretion to arrest;
(iii)
the arrester must exercise that discretion with
reference to the facts;
(iv)
there is no jurisdictional requirement that the
investigating officer should consider using a less drastic measure
than arrest to
bring the suspect before court.
51.
"Reasonable grounds" are to be
interpreted objectively - Vide
Duncan
supra at 814 D Per
Hiemstra OD cit 5-8
:
"...
the
section requires suspicion, not certainty. Such suspicion must,
however, make sense, otherwise it is frivolous or arbitrary
and not
reasonable. There must be evidence that the arresting officer formed
a suspicion which is objectively sustainable.
See
Ralekwa v Minister
of
Safety and Security
2004 (1) SACR 131
T par 1."
52.
I refer to the case of
Olivier
v Minister of Safety and Security and another
[2008] ZAGPHC 50
;
2008 (2) SACR 387
WLD.
The following occurred: Olivier, a
superintendent in the SAPS based in Heidelberg, was arrested without
warrant and detained for
six and one half hours on a charge of theft
alternatively fraud. The charges were later withdrawn. Another
superintendent (who
had received a call from an unidentified person)
had told the arresting officer, Senior Superintendent Mokoena
("Mokoena"),
that Olivier had retained certain cigarettes,
alcohol, clothing and shoes seized in another case, instead of
incinerating them
or throwing them down a mine shaft, which was their
standard modus operandi. Olivier had retained five cartons of
cigarettes which
lay openly on his desk in his office but explained
to Mokoena that he had done so because he had to check with the area
commissioner
about the manner in which they were to be disposed of.
53.
Following Olivier's arrest, inspections of his
office and home revealed no evidence of his possession of these
goods. He was released
on bail at 20h00 that night. Following a
damages claim for unlawful arrest, he was awarded damages of R50
000,00.
54.
At p395f of
Olivier.
the
Court remarked:
"The plaintiff
gave an exculpatory explanation which should have alerted the second
defendant (Mokoena) to the real possibility
that the
plaintiff at the time lacked the requisite mens rea
for theft or fraud. Indeed, the second defendant seemed to know very
little
of the requirements of
s40(1)(b)
where a peace officer effects
an arrest without warrant.'"'
55.
The Court held that the enquiry must be decided
on its own facts but enunciated certain general principles at p398
d-f:
"This entails
that the adjudicator of fact should look at the prevailing
circumstances at the time when the arrest was made
and ask himself
the question "was the arrest of the accused in the circumstances
of the case, having regard to flight risk,
permanence of employment
and residence, co-operation on the part of the accused, his standing
in the community or amongst his peers,
the strength or weakness of
the case, and such other factors which the court may find relevant,
unavoidable, justified or the only
reasonable means to obtain
objectives of the police investigation?" The interests of
justice may also be a factor.
"
56.
In
The Minister of
Safety and Security v Tyulu
2009 ZASCA 55
SCA dated 27 May 2009,
a 48 year old magistrate was arrested on suspicion of being drunk in
public when he walked to a nearby filling station to buy a
soft
drink. The police had been on the lookout for a person whom a
witness, one Hendricks, had identified as being drunk while
driving a
vehicle. Tyulu denied being drunk while walking to the filling
station and denied driving the vehicle at all.
57.
A medical report indicated that Tyulu's blood
alcohol content was 0,23g per 100 millilitres, more than twice the
legally permissible
limit. Tyulu admitted having consumed six beers
at home shortly before going to the petrol station. The charge that
Tyulu was drunk
in public was under section 154(1)(c) of the Liquor
Act 27 of 1989 and section 40(1)(a) of the CPA was invoked. The
drunken driving
offence was in terms of section 40(1)(f) of the CPA.
Hendricks eventually conceded that he was unsure whether the driver
of the
vehicle was indeed drunk.
58.
On appeal it was found that there was no reliable
evidence to prove that Tyulu was found to have been drunk at all. The
DPP declined
to prosecute. Tyulu was released after 15 minutes in
detention. He was awarded damages of R15 000,00 on appeal.
59.
In
Minister of Safety
and Security and Jonathan Daniels v Johannes Francois Swart
2012
ZASCA 16
SCA 22 March 2010
,
Johannes
Swart ("Swart"), a sergeant of 16 years' standing, was
arrested without warrant, under section 40(1)(b) of the
CPA, by a co
officer, constable Jonathan Daniels ("Daniels"), from the
same police station at De Doorns, on a suspicion
of driving a motor
vehicle on a public road while under the influence of intoxicating
liquor. He spent four and one half hours
in detention. The charge
against Swart was withdrawn the following day after a blood test
revealed that his blood alcohol limit
was below the permissible
limit.
60.
The SCA found that the only basis for Swart's
arrest was the evidence from Daniels that he smelt of alcohol and
that Swart's vehicle
had left the road and landed in a ditch. There
was no evidence that he was unsteady on his feet, that his speech was
slurred that
he could not walk in a straight line or that his eyes
were bloodshot. On the contrary, Swart appeared to have been in full
control
of his senses and spoke in a friendly and coherent manner.
See paragraphs 21 and 22 of the judgment. His damages award of R50
000,00
was confirmed on appeal.
61.
I turn to the facts in this case. I am mindful of
the premise that the suspicion must be objectively reasonable but
does not require
certainty. In
Shabaan Bin
Hussein and others v Chong Fook Kam and others
1969 3 All ER 1626
PC
at 1630
,
the
Privy Council said:
"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."
62.
The critical question to be asked is whether
Strydom had enough evidence at his disposal on 21 May 2013 to create
reasonable grounds
for arrest without warrant, which grounds were
objectively sustainable.
63.
As demonstrated by the facts in the cases of
Tyulu, Olivier
and
Swart
,
the grounds for arrest without warrant were
tenuous at best, with a lack of reliable, independent corroboration
in most instances.
64.
In casu, the same situation prevailed, in the
sense that Strydom unreasonably relied on the affidavit of
complainant S. and on his
observations of her purported traumatic
emotional state as sufficient grounds for arrest. This despite
indications of the absence
of any ostensible physical injuries, which
patently warranted an independent medical investigation. This despite
the inconsistency
between her alleged assault by Dlamini three days
before, and her decision to go to a vacant house alone with him after
that, and
despite the probability that Dlamini and Potgieter provided
him with an ulterior motive for the charge.
65.
For the reasons adumbrated above, the arrest of
Dlamini on 21 May 2013 and his detention until 23 May 2013 was
unlawful and his
claim for damages against the Minister for this
period is legally actionable.
66.
The inclusion of the Commissioner was
superfluous, but I have resolved not to grant any costs order in this
regard.
67.
In the case of Minister of Safety and
Security v Scott SCA case number 969/2013
.
the plaintiff was awarded damages in the
amount of R30 000,00 following his unlawful arrest and detention for
nine hours. In the
instant case, Dlamini was in custody for about two
days. An award of R35 000,00 per day for 21 and 22 May 2013 is fair
and reasonable
in the given circumstances.
68.
Defendants' Counsel did not raise the issue of an
order for Magistrates' Court costs. Lawyers should be sanctioned
against the launch
of litigation in the High Court for cases which
fall squarely within the jurisdiction of the Magistrates' Courts.
69.
In this case, the defendants' defence was
untenable and without factual or legal foundation. It was vexatious
in the manner in which
allegations were made but not proved against
the plaintiff, such as those of threatening communications from
Dlamini to S., and
any previous convictions on the part of Dlamini. A
punitive award of costs is justified.
70.
The following order is granted:
a.
The first defendant is directed to pay to the
plaintiff the sum of R70 000,00;
b.
The first defendant is directed to pay the
plaintiff's costs on the attorney and client scale.
__________________
T
BRENNER
ACTING JUDGE OF THE HIGH
COURT OF SOUTH AFRICA
GAUTENG DIVISION,
JOHANNESBURG
23
March 2017
Appearances
Counsel
for the Plaintiff: Advocate P Ngutshana
Instructed
by: M A Maoba Attorneys
Counsel
for the Defendants: Advocate M D Mlamonyane
Instructed
by: The State Attorney