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[2016] ZAGPPHC 608
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Endeshan v The Minister of Safety and Security (27012/2013) [2016] ZAGPPHC 608 (7 April 2016)
IN THE HIGH COURT
OF SOUTH AFRICA
[GAUTENG DIVISION,
PRETORIA]
7/4/2016
CASE NUMBER:
27012/2013
DATE:
7/4/2016
CASE
NUMBER: 27012/2013
(1)
REPORTABLE: YES
(2) OF
INTEREST TO OTHER JUDGES: YES
In the matter between
:
CT
ENDESHAN
PLAINTIFF
and
THE
MINISTER
OF SAFETY
AND
SECURITY DEFENDANT
JUDGMENT
A.J. LOUW AJ
[1]
On the 11
th
May 2012 and in the district of Witbank the
Plaintiff, who is an Ethiopian refugee, was arrested without a
warrant of arrest in
terms of Section 40 of the Criminal Procedure
Act 51 of 1977 ("the
Criminal Procedure Act"
;) by Sergeant
Combrink, a member of the South African Police Service who acted in
the course and scope of his employment as an
employee of the
Defendant. Sergeant Combrink testified that the charge was that the
Plaintiff was unlawfully in South Africa.
[2]
The facts of the matter are upsetting because the Plaintiff was a
refugee and asylum seeker. As a foreigner and asylum seeker
the
Plaintiff was a vulnerable person. Our Constitution is .committed to
protect freedom, equality and dignity and is concerned
to protect the
vulnerable, exploited and powerless. See:
Kylie v CCMA
2010
(4) SA 383 LAC, par 46 and 50;
SATAWU v Garvas
2013
(1) SA 83 CC, par 61 and 63.)
It
turned out, in the end, that he indeed was not an undocumented person
or an illegal immigrant and his arrest and detention between
the 11th
and the 18th May 2012 were unnecessary, certainly very discomfortable
and avoidable if the employees of the Defendant
acted with deference
to the liberty of the Plaintiff. The question to be answered is
whether the arrest and detention were unlawful.
The
Supreme Court of appeal in the
Minister of Safety and
Security v Sekhoto and Another
2011 (5)
SA 367 (SCA)
found in the context
of
where Section 40(1
)(b) of the
Criminal Procedure Act applied
that there is no "fifth
jurisdictional fact" for a lawful arrest of a person. The "fifth
jurisdictional fact"
being that there must have been no less
invasive option available in order to bring the suspect before a
court. In paragraphs 28
and 39 of the
Sekhoto
-judgment
the Supreme Court of Appeal found that no such fifth jurisdictional
fact can be read into the provisions of
Section 40(1)(b)
of the
Criminal Procedure Act.
>
This
matter concerns
Section 40(1)(a)
or
Section 40(1)(I)
of the
Criminal
Procedure Act and
not
Section 40(1)(b)
thereof. I am however bound by
the Sekhoto-judgment insofar as it found that there is no requirement
that the Police must consider,
before making an arrest, whether there
are less invasive options to bring the suspect before the court than
an immediate detention
of the pernon concerned.
The
unfortunate circumstances of the arrest and detainment of the
Plaintiff in this matter highlight the plight of persons that
might
be lawfully arrested in terms of the provisions of the
Criminal
Procedure Act on
the application of the principles regarding arrest
laid down in
Sekhoto
,
but where
such arrest and detention were unnecessary in the broader
circumstances of the particular matter. The purpose of arrest
is to
secure the attendance of an accused in court. See
Sekhoto
par 19. There are indeed other less invasive of the constitutional
right to freedom ways to secure attendance at court of an accused
person.
[3]
On the other hand I am acutely aware of the fact that the members of
the South African Police Service must be allowed to do
their work.
One is obliged to consider the practicalities of their work where
they have to take decisions without necessarily having
the luxury of
long reflection before deciding on a suitable course of conduct.
[4]
Arising from the above concerns, I overly long delayed in finalising
the judgment. I extend my profound apologies to both parties
for the
delay in finalising the judgment.
[5]
On the pleadings the Plaintiff's case is simple. He was arrested on
the 11
th
May 2012 in the district of Witbank and was held
in custody from the 11
th
May 2012 to the 18
th
May 2012 when the Public Prosecutor issued a certificate of
nolle
prosequi.
As a result of the alleged unlawful arrest and
detention, the Plaintiff claims R250 000.00 in general damages for
loss of his freedom.
In
the particulars of claim it is alleged that proper notice of the
proceedings was given in terms of Act 40 of 2002. This however,
actually was incorrect. A successful application for condonation was
brought and the non-compliance with Section 3(2)(a) and (b)
of Act 40
of 2002 was condoned by Jordaan, J on the 18
th
November
2013.
[6]
The Defendant's amended plea says that Sergeant Combrink arrested the
Plaintiff on the 11th May 2012 without a warrant of arrest.
It is
alleged that the arrest was lawful in that the Plaintiff was arrested
pursuant to the provisions of
Section 40(1)(a)
of the
Criminal
Procedure Act for
contravening the provisions of
Section 37(b)
of the
Refugees Act 130 of 1998
by failing to comply with the conditions
subject to which his asylum seeker temporary permit had been issued
to him. It is further
alleged that the Plaintiff was detained at the
instance of the members of the South African Police Service at the
Vosman Police
Station until the morning of the 14th May 2012 when he
appeared in the Magistrates Court, Witbank. It is then further
pleaded that
the Plaintiff s further detention was pursuant to an
order of the Magistrate, Witbank denying bail and remanding his case
to the
18
th
May 2012. On the 18
th
May 2012 the
Public Prosecutor withdrew the charges against the Plaintiff. It is
further alleged that the Plaintiff is to blame
for the loss of his
freedom because the Plaintiff deliberately refrained from producing a
valid asylum seeker: temporary permit
which he apparently had, either
to the Police during his incarceration over the weekend of the 11
th
May 2012 or to the court when he made his first appearance.
[7]
The parties handed in a bundle of documents that I marked Exhibit
"A". The documents are all common cause between
the
Plaintiff and the Defendant. Amongst these documents are at page 11
of Exhibit "A" an expired asylum seeker temporary
permit
that indeed expired on the 5th May 2012. Also included in Exhibit "A"
at page 8 of Exhibit A is a valid (as at
date of the arrest of the
Plaintiff) asylum seeker temporary permit dated the 9
th
May 2012 and that was valid until the 13
th
June 2012.
[8]
From this document it is accordingly clear that the Plaintiff was, at
the time of his arrest and for the full period of his
detention the
holder of a valid asylum seeker temporary permit. For purposes of
distinction I will refer to the said Exhibit "A"
page 8 as
the "valid asylum seeker temporary permit" and to the
expired permit (page 11 of Exhibit "A") as
"the
expired temporary permit".
[9]
Although the Plaintiff did not take on any onus, the Plaintiff
presented evidence first and the Plaintiff himself, a cousin
of the
Plaintiff, Mr DA Bjigo testified. Thereafter the Plaintiff s case was
closed. The only witness that testified on behalf
of the Defendant is
Sergeant Combrink.
[10]
The Plaintiff testified that he is a citizen of Ethiopia and that he
was arrested in Witbank/Emalahleni at the Kwa-Guqa Township
on the
11
th
May 2012. At the time of his arrest he was in his
shop. According to his evidence he earns more than R3 000.00 per day
from his
business. Sergeant Combrink approached him and requested his
documents. He produced the expired temporary permit. Sergeant
Combrink
informed him that the validity period of the expired
temporary permit had already expired. He explained to Combrink that
he has
valid papers at his home. As a fact this is correct as the
valid asylum seeker temporary permit was already in existence and it
is not in dispute that this document was at the Plaintiffs home on
the 11th May 2012.
[11]
The Plaintiff testified that the valid asylum seeker temporary permit
was issued on the 9
th
May 2012, i.e. some days after
expiry of the expired temporary permit because Ethiopian applications
for asylum are only dealt
with at the Marabastad Office of the
Department of Interior in Pretoria on Wednesdays.
[12]
The Plaintiff explained that he asked his brothers (it appears to be
cousins) by telephone to bring the valid asylum seeker
temporary
permit to the shop. Combrink waited for a few minutes. The Plaintiff
testified that his place of residence was not far
from the shop.
[13]
After a short period of time, it appears. not to have been longer
than 15 minutes, Sergeant Combrink decided to arrest the
Plaintiff.
The Plaintiff testified that his family turned up with the valid
asylum seeker temporary permit whilst he and Sergeant
Combink were
outside the shop and he was informed that he will be kept in custody
until the said document will have been investigated.
It is necessary
to say that Combrink denies knowledge of the existence of the valid
asylum seeker temporary permit and disputes
the evidence that the
papers were brought to the shop. The Plaintiffs witness also does not
support him on this evidence and this
evidence is also contrary to
the Plaintiffs own evidence under cross-examination.
[14]
The Plaintiff was taken into custody, his fingerprints were taken at
the Vosman Police Station and he was placed in a filthy
cell with no
toilet facilities. Again this part of his evidence was disputed by
Combrink but I have no reason to doubt the correctness
of the
Plaintiff s evidence in this regard. Not alone were proper toilet
facilities lacking, no blankets and bedding were provided
and no food
was provided over the weekend. His family brought him food. After his
court appearance on Monday the 14th May 2012
he remained in custody
and was taken to a different police station. Again toilet facilities
were lacking. He did receive food once
a day being a meal of porridge
and salad. Again his family brought additional food to feed him. The
Plaintiff and his fellow detainees
were not allowed to make use of
the toilet facilities outside the cells and had to relieve themselves
in the cells. Again I have
no reason to doubt the veracity of the
Plaintiff on these aspects.
[15]
In cross-examination the Plaintiff was questioned on why he did not
have the valid asylum seeker temporary permit with him.
He explained
that when Combrink confronted him with the fact that the document in
his possession had expired, the Plaintiff explained
that he had not
noticed that it was the expired document. In cross-examination he
said that he was taken into custody to Vosman
Police Station before
his family brought the valid asylum seeker temporary permit. From
Exhibit "A" it appears that at
the latest on the 18
th
May 2012 a legal representative, one Mr Venter, appeared on behalf of
the Plaintiff. The Plaintiff was cross-examined on the question
of
whether he had a legal representative representing him on the 14
th
May 2012. The Plaintiff denied that Mr Venter appeared for him on
that particular day. In further cross-examination he said he
could
not remember whether he had a legal representative. What is clear is
that the Plaintiff is somewhat confused as to the court
procedure and
he conceded that he did not tell the court on the 14th May 2012 that
he was in possession of a valid asylum seeker
temporary permit.
[16]
In cross-examination the Plaintiff indeed said that his family (he
called them his brothers) brought him food and they also
brought the
valid asylum seeker temporary permit to the Police Station over the
weekend of 11 May 2012. This was done by, one Habitjo
according to
the Plaintiff's evidence.
[17]
On the evidence of the Plaintiff it must be said that he is not
certain as to when precisely the valid asylum seeker temporary
permit
was indeed brought to the Police except that it is clear that it was
available on the 18th May 2015 when he was released
at his second
court appearance. I refer in this regard to Exhibit "A"
page 5. I also conclude that he did not properly
understand the court
process on the 14th May 2012.
[18]
The second witness on behalf of the Plaintiff was Mr Bejigo. He
explained that he was not at the Plaintiff's shop when the
Plaintiff
was arrested. He was indeed aware of the arrest on the very day,
namely the 11
th
May 2012. He knew of the arrest because he
received the Plaintiff's call to bring the valid asylum seeker
temporary permit. He
specifically testified that the Plaintiff said
that he had been arrested by the Police and that the witness should
bring the Plaintiff's
valid asylum seeker temporary permit. He then
explained that he drove the vehicle going to the Vosman Police
Station and that he
and the rest of the family followed the South
African Police vehicle and tried to speak to the officers. He says he
pleaded that
he (that is the witness) is in possession of the
documents. He explained that the Plaintiff was driven to the Police
Station by
two South African Police Service personnel members who
were both black officials. On this evidence the discussions were with
Police
officials different.to Sergeant Combrink and not in Combrink's
presence.
[19]
The witness testified that he showed the Police officials the valid
documents. The witness was told to follow the Police to
the Police
Station where the documentation could be investigated. He says that
the Plaintiff was put into the cells and that the
witness was called
by the South African Police officials whereupon he explained the
existence of the valid asylum seeker temporary
permit. The answer was
that a different section would verify these documents. He said in his
evidence that he gave the document
in Exhibit "A", page 8
with the date stamp 9 May 2012, which is the valid asylum seeker
temporary permit, to these Police
officials. The Police officials
remained in possession thereof. He further testified that on the
following day (that is the 12
th
May 2012) he enquired
about the verification process but was told that that had not
occurred yet.
[20]
During cross-examination Mr Bejigo confirmed that the Plaintiff had
already left the shop in the custody of the Police when
the witness
arrived at the shop. He then drove behind the Police vehicle and
flickered his lights. It is not altogether clear but
it appears as if
the personnel transporting the Plaintiff only went into discussion
with the witness when they arrived at the Vosman
Police Station. He
explained that he and the family members tried to obtain the release
of the Plaintiff over the weekend of the
11
th
May 2012
without any success. The legal representative, Mr Venter, only became
involved after the refusal to release the Plaintiff
over the weekend
of the 11
th
May 2012. The witness testified that the
original of the valid asylum seeker temporary permit was in
possession of the Police already
on Friday the 11
th
May
2012.
[21]
In cross-examination by Mr Jozana Mr Bejigo was cross-examined on the
events at court on Monday the 14
th
May 2012. He explained
that him and his brothers were outside court and the legal
representative (I assume Mr Venter) explained
that the valid asylum
seeker temporary permit was not brought to court by the investigating
officer and it was also explained to
them that the Plaintiff would be
held at a different Police station. The legal representative also
explained that arrangements
will be made for an interpreter to
interpret for the Plaintiff. He was adamant that the valid asylum
seeker temporary permit was
given to the Police on the 11
th
May 2012.
[22]
In evidence in chief Sergeant Combrink testified that he was a member
of the South African Police Service and was stationed
at Vosman
Police Station. He testified that he arrested the Plaintiff at the
Plaintiff's tuckshop in the Vosman area. Upon request
the Plaintiff
produced the expired temporary permit, Exhibit "A11".
Sergeant Combrink told the Plaintiff that the Plaintiff
was
unlawfully in the Republic of South Africa. The Plaintiff answered
that his valid asylum seeker temporary permit was where
he sleeps and
that that is not further than 500 metres away and asked to fetch the
document. He could not recall that the Plaintiff
made a phone call
but he waited outside the Plaintiff's shop and after approximately 15
minutes decided to arrest the Plaintiff
for being unlawfully in the
Republic of South Africa.
[23]
Sergeant Combrink testified that the Plaintiff was in the back of his
vehicle, not handcuffed and that nobody stopped them
on their way to
the Vosman Police Station. The said Police Station was not longer
than 10 minutes away from where the arrest took
place. He testified
that the Plaintiff was placed in the holding cells and he confirmed
that a relative (without specifying who
the person was) of the
Plaintiff arrived after the Plaintiff had already been put into the
holding cells. He denied the absence
of ablution facilities and
blankets. He then testified that he wrote out his arrest statement.
The statement appears at pages 13
and 14 of Exhibit "A".
The statement says that the Plaintiff produced the expired temporary
permit and that the Plaintiff
said that he has a new document at
home. The statement then further confirms that they waited for
someone to bring the document
and when no one arrived he decided to
arrest the Plaintiff on grounds thereof that the Plaintiff was an
undocumented person/an
illegal immigrant.
[24]
Sergeant Combrink further explained that the Plaintiff went to court
on the Monday (that is 14 May 2012) but Combrink himself
did not
attend at court. He only became aware of the valid asylum seeker
temporary permit (as it appears at page 8 of Exhibit "A")
shortly before the trial of this matter when he was asked to come and
testify. He denied that the document was given to him by
the witness
Bejigo. He further testified that he arrested the Plaintiff because
the Plaintiff was not in possession of a valid
permit.
[25]
In cross-examination by Mr Pienaar, Sergeant Combrink confirmed that
he waited approximately 15 minutes before he decided to
arrest the
Plaintiff. He testified that he would in any event have arrested the
Plaintiff because of the fact that the valid asylum
seeker temporary
permit was only issued some days after the expiry of the expired
temporary permit, thus because the Plaintiff
would have been
illegally in South Africa for four days prior to the issue of the
valid asylum seeker temporary permit. His explanation
was that he
would have had the suspicion that the valid asylum seeker temporary
permit was fraudulent. He further testified that
the investigating
officer on the case, Warrant Officer Lombaard, did not contact
Sergeant Combrink. He could not explain whether
the information was
followed up, nor the fact that there was less than perfect compliance
with the further investigations after
the arrest of the Plaintiff as
for instance the Plaintiff s warning statement clearly was not signed
by the Plaintiff. (See Exhibit
"A" page 10). There is also
no indication of the residential or work address of the Plaintiff.
Combrink testified that
after the arrest of the Plaintiff and after
arrival of the Plaintiff at the Vosman Police Station, he did not
follow up with Home
Affairs as to the illegality or not of the
Plaintiffs presence in the South Africa as he had other duties and
handed the Plaintiff
over to the detectives who were to investigate
the matter.
[26]
Sergeant Combrink was questioned on why he did not collect the
Plaintiffs valid asylum seeker temporary permit from the Plaintiffs
home. His explanation was that foreigners tended to have unlawful
documents; the Plaintiff was in possession of an expired document
and
that he could not drive the Plaintiff around in a Police vehicle as a
civilian. None of these excuses seem to me to be acceptable,
although
I cannot say that he was obliged to assist with the collection of the
document at the Plaintiff s home.
[27]
He was examined regarding the inscription in the investigation diary
at inscription C1 where, apparently one Colonel De La
Hunt made an
entry in red pen on the 12
th
May 2012 at 14h00. The entry
reads "arranged with home affairs to check the document".
Finally Sergeant Combrink confirmed
in cross-examination that after
having arrested the Plaintiff he had nothing further to do with the
matter.
[28]
The above concluded the evidence that was led.
[29]
In argument Mr Jozana criticised the Plaintiff and his witness on
grounds of the contradictions in their evidence and made
a submission
that these contradictions served to reduce the weight to be attached
to their evidence. His submission was that the
Defendant's version
remained consistent and that the Defendant's version of the facts
must be accepted. He submitted that it must
be the inescapable
conclusion that no valid document was produced over the weekend of
the 11
th
May 2012. He further submitted that it must be
found that the Defendant's employees were not presented with the
valid asylum seeker
temporary permit prior to the 18
th
May
2012 when the Plaintiff was released. He submitted that Sergeant
Combrink acted within his powers and made a lawful arrest.
Therefore,
he argued, also follows that the detention was lawful and when the
Magistrate's Court intervened on Monday 14 May 2012
the further
detention of the Plaintiff was also lawful. Thus, if anything, the
Defendant could only be held liable for two days
of detention (that
is if it is found that the Defendant is liable for unlawful arrest
and detention), He further submitted that
the claim must be dismissed
with costs. If there is liability on the part of the Plaintiff this
must be limited to approximately
R30 000.00 per day of detention.
[30]
Mr Pienaar argued that the Plaintiff was not arrested in terms of
Section 40(1)(a)
of the
Criminal Procedure Act but
indeed in terms of
Section 40(1)(I)
namely on grounds thereof that there was a
reasonable suspicion that the Plaintiff was an illegal immigrant. He
submitted that
the Plaintiff told Combrink that he has valid papers
approximately 500 metres away from where the arrest took place and
that the
invasion of the Plaintiffs liberty should have been an
action of last resort. He argued that there was nothing that
prevented the
collection of the valid asylum seeker temporary permit.
He argued that only Sergeant Combrink was called and that the
investigating
officer, Warrant Officer Lombaard, was not called to
testify. The in red pen inscription referred to above should have
been explained
by the Defendant. He submitted further that it is
common cause that after the arrest nothing further was done with
regard to investigating
the matter and that there was a legal duty
upon the Defendant's personnel to inform the Public Prosecutor that
there was no further
reason for the incarceration of the Plaintiff.
He submitted that the valid asylum seeker temporary permit was with
the South African
Police Service all along since Friday the 11
th
May 2012. He argued that a negative inference must be made against
the Defendant in view of the absence of any evidence from the
investigating officer.
[31]
Mr Pienaar further submitted, with reference to case law, that R250
000.00 as general damages would not be exorbitant depending
on which
scenario applies, namely unlawful detention up to the 14th May 2012
or unlawful detention for the whole period up to the
18th May 2012.
[32]
The contradictions between the evidence of the Plaintiff and his
witness are an unsatisfactory feature of their evidence. The
question, however, is whether they are not to be believed with regard
to specifically the question whether the valid asylum seeker
temporary permit was produced to the Police officials on Friday the
11th May 2012 or Saturday the 12
th
May 2012. There could
not be any contradictions between witnesses on the part of the
Defendant as only Sergeant Combrink was called
to testify. In this
regard it must be kept in mind that Sergeant Combrink can only
testify with regard to the facts of the matter
up to the time when he
left the Plaintiff in the holding cells on the 11
th
May
2012. After that he cannot make any contribution whatsoever to what
occurred thereafter.
[33]
It is common cause on the evidence that the Plaintiff was arrested on
the 11
th
May 2012 whilst he was in possession of the
expired temporary permit. It is further common cause that the valid
asylum seeker temporary
permit was in existence and that the
Plaintiff was not an illegal immigrant at the time of his arrest by
Sergeant Combrink. It
is common cause that the Plaintiff was
transported to the Vosman Police Station and taken into custody in
the holding cells until
Monday the 14th May 2012 when he appeared in
court and was thereafter held in further custody until the 18th May
2012. On the 18th
May 2012 there was a refusal to prosecute because
of the existence of the valid asylum seeker temporary permit.
[34]
As regards the impression that the witnesses made, I make the
following observations: There are contradictions in the evidence
of
the Plaintiff and his witness. However, neither of them gave me the
impression that they are anything but honest witnesses attempting
to
give honest evidence. In this respect I take into consideration that
they find themselves in a situation where they have to
present their
evidence in English where English is not their first language. In any
event the general picture of the evidence presented
by the Plaintiff
and his witness is not at variance with the evidence of Sergeant
Combrink who was the only witness on behalf of
the Defendant. On his
part I
also find Sergeant Combrink an honest witness.
[35]
The Defendant carries the onus of proof to prove the lawfulness of
the arrest as well as the lawfulness of the full period
of the
detention in custody of the Plaintiff. In this respect it must
immediately be stated that the Defendant failed to produce
any
evidence other than that of Sergeant Combrink. In that regard it is
already clear from the previous exposition that Sergeant
Combrink can
only provide evidence up to the initial incarceration of the
Plaintiff on Friday the 11
th
May 2012. On his own version
he thereafter had nothing further to do with the matter. His only
further involvement came when he
was called upon to come and testify
at the trial of this matter.
[36]
The confusing evidence of the Plaintiff and his witness as to
precisely when the valid asylum seeker temporary permit was produced
to the South African Police Service is a factor that I have to take
into consideration. As referred to earlier, Mr Jozana argued
that the
valid asylum seeker temporary permit was only produced on the 18th
May 2012 when the release of the Plaintiff occurred.
I however cannot
accept this submission. I find so for the following reasons. Although
the Plaintiff himself cannot assist me with
precisely when the valid
asylum seeker temporary permit was produced to the Police, this
clearly must have occurred by no later
than 14h00 on the 12
th
May 2012. It is namely common cause that at the time of the
Plaintiff's arrest, he was not in possession of the valid asylum
seeker
temporary permit. It is common cause that the Plaintiff said
to Sergeant Combrink that he indeed has a valid asylum seeker
temporary
permit and that he requested time, prior to his arrest, to
produce this document. Sergeant Combrink could not testify on whether
the Plaintiff made a phone call in order to request his cousins to
bring the valid document to the Plaintiff's shop in order to
avoid
his arrest. However, leaving aside both the Plaintiff's evidence in
this regard as well as the evidence of his witness, it
is indeed on
Sergeant Combrink's evidence clear that the family members, i.e. the
cousins of the Plaintiff, did indeed turn up
at the Vosman Police
station. The evidence of Sergeant Combrink was that the relative
arrived at a time after the Plaintiff had
already been put into the
holding cells. What remains unexplained is the inscription in the
investigation diary by the officer.
That inscription was made,
according to the investigation diary, on the 12
th
May 2012
at 14h00. That entry, in red pen says: "Arranged with home
affairs to check the document." I was not referred
through the
evidence of any of the .witnesses of any follow up on this entry in
the investigation diary and there is a dearth of
evidence on what
occurred at court on both the 14
th
of May 2012 and the
18th May 2012. On the 18
th
May 2012 the public prosecutor
refused to prosecute in view of the existence of a valid asylum
seeker temporary permit. Mr Jozana
has no basis in any evidence for
his submission that the Plaintiff on purpose failed to produce this
document nor for the submission
that it was only produced on the 18
th
May 2012. Indeed these submissions are against the probabilities in
this matter. The Plaintiff is arrested. He calls in the assistance
of
his family members to indeed produce the valid asylum seeker
temporary permit that indeed existed at the time of his arrest
and
that unfortunately was not in his possession at that time. To expect
that the Plaintiff and his family would delay for some
purpose not
explained in any evidence or in cross-examination to produce this
document and then only produce it on the 18
th
May 2012 is
contrary to what one would normally expect in circumstances where a
person is unnecessarily incarcerated whilst he
indeed is in
possession of a valid asylum seeker temporary permit. The inscription
in the investigation diary discussed above,
which remains unexplained
by the Defendant, indeed strongly supports the possession of the
valid asylum seeker temporary permit
by the South African Police by
no later than 14h00 on 12 May 2012.
[37]
I accordingly find that the valid asylum seeker temporary permit was
produced and in possession of the Defendants Police Officers
by no
later than 14h00 on the 12
th
May 2012.
[38]
The question now is whether the Plaintiff was unlawfully arrested by
Sergeant Combrink and unlawfully incarcerated until the
14
th
May 2012. The further questions are whether the remanding of the
Plaintiff in custody on the 14
th
May 2012 for the period
between the 14
th
May 2012 and the 18
th
May 2012
occurred unlawfully.
[39]
On the pleadings the Defendant's case is that the Plaintiff was
arrested lawfully pursuant to the provisions of
Section 40(1)(a)
of
the
Criminal Procedure Act for
contravening the provisions of the
Refugees Act 130 of 1998
by failing to comply with the conditions
subject to which his asylum seeker temporary permit had been issued
to him and on grounds
thereof that the Plaintiff deliberately
refrained from producing the valid asylum seeker temporary permit
either to the Police
over the weekend (of the 11
th
May
2012) or to the court when he made his first appearance on 14 May
2012. On the evidence of Sergeant Combrink he arrested the
Plaintiff
for being unlawfully in South Africa after he saw that the Plaintiff
was in possession of the expired temporary permit.
It appears to me
as if this basis of the arrest can be housed under either
Section
40(1)(a)
or
Section 40(1)(1)
of the
Criminal Procedure Act. From
Combrink's evidence it is clear that he was not aware of the other
legislation referred to in the plea.
[40]
There is no so-called "fifth jurisdictional fact", namely
the consideration of whether there are less invasive options
to bring
the suspect before the court other than an immediate detention of the
arrestee. See:
Sekhoto
para 10,
11 and 13.
[41]
Whether
Section 40(1)(a)
or on
Section 40(1)(I)
applies the Plaintiff
was in remiss in not being in possession of his valid asylum seeker
temporary permit. Despite a short period
of waiting for the document
to turn up, it did not turn up and the arrest was effected. On the
approach set forth in the
Sekhoto
matter,
the conduct of Sergeant Combrink cannot be faulted, although it
certainly was not an optimal exercise of his discretion.
I thus
conclude that Sergeant Combrink lawfully arrested the Plaintiff on
the 11th May 2012.
[42]
In due course it appeared that the Plaintiff indeed was in possession
of a valid asylum seeker temporary permit and accordingly
he was
arrested whilst in fact he was not unlawfully in the Republic of
South Africa. These facts do not make his arrest per se
unlawful. The
assessment of the legality of an arrest in terms of
Section 40(1)(a)
(or
40
(1)(I)) of the
Criminal Procedure Act requires
a determination
whether the facts observed by the arresting officer as a matter of
law
prima facie
established the commission of the offence in
question. Indeed the Plaintiff did
prima facie
commit an
offence as result of the absence of the valid asylum seeker temporary
permit at the time of his arrest. See:
R v Maloy
1953
(3) SA 659
(T) at 662;
S
v Loubser
1977 (4) SA 546
(T) at 548;
Scheepers v Minister of
Safety and Security
2015 (1) SACR 284
(ECG) at para 20
- 21.
[43]
The next question to determine is whether the Plaintiff was lawfully
detained and if so until when.
[44]
The witness Bejigo was adamant that he gave the valid asylum seeker
temporary permit to the arresting officers already on the
11
th
May 2012. On the totality of Bejigo's evidence it appears that the
persons to whom he gave the valid asylum seeker temporary permit
were
not Sergeant Combrink but other officers who indicated that they do
not do the investigations as to the validity of the documentation.
I
already found that on the probabilities the members of the South
African Police Service were already in possession of the valid
asylum
seeker temporary permit by no later than 14h00 on Saturday 12 May
2012. It is only as a result of the unclarities and contradictions
in
the evidence of the Plaintiff and his witness that I do not conclude
that the valid asylum seeker temporary permit was already
in the
possession of the Police officials on Friday 11 May 2012.
[45]
The Defendant carries the onus of proof to prove the lawfulness of
the arrest and the lawfulness of the full period of detention.
Insofar there are more than one possible inference to be made from
the facts in the absence of evidence from the. Defendant for
the
period after .the involvement of Sergeant Combrink, I am entitled to
make the inference that favours the Plaintiff. See for
instance:
Galante v Dickinson
1950 (2) SA 460
(A) at
465.
The inference I make on the evidence is also the most
readily apparent and acceptable inference. See:
AA
Onderlinge
Assuransie Assosiasie
Bpk v De Beer
1982 (2) SA 603
(A)
and
Goliath
v MEG for Health, Eastern Cape
2015 (2) SA 97
(SCA) at par
19.
However, the
Galante
-principle is probably not
applicable as on the probabilities the obvious answer to the question
of the delivery of the valid asylum
seeker temporary permit to the
South African Police officials is, as found above, that the
Plaintiffs family would have ensured
that the valid asylum seeker
temporary permit be in possession of the South African Police
officials as soon as possible so as
to obtain the speedy release from
custody of the Plaintiff. See:
De Maayer v Serebro and
Another, Serebro v Road Accident Fund and Another
[2005]
2 All SA 553
(SCA) at para 19.
[46]
The question then is whether the Plaintiff should have been released
by 14h00 on the 12
th
May 2012.
[47]
In terms of
Section 50(1)of
the
Criminal Procedure Act a
person who
is arrested without a warrant is brought to a police station as soon
as possible and is held in custody for no longer
than 48 hours if he
is not released because no charge is preferred against him. Release
on payment of bail or warning or release
or service of a notice in
terms of
Section 56(2)
of the
Criminal Procedure Act are
also
possible.
[48]
A lawful arrest is not a prerequisite for the provisions of
Section
50(1)
of the
Criminal Procedure Act coming
into effect. Also, an
unlawful arrest does not preclude that the arrestee may be lawfully
remanded in custody in terms of
Section 50.
On the other hand also a
lawful arrest and period of lawful detention of an arrestee does not
prevent the detention from becoming
unlawful. In view of the
provisions of Sections 7, 8, 10 and 12 of the Constitution it is
obligatory for the South African Police
Service officials to first
establish whether there is any legal justification for the detention
of an arrested person. This requirement
also applied to the
Plaintiff. In addition, further, the South African Police officials
were obliged to relay to the public prosecutor
the fact of the
existence of the valid asylum seeker temporary permit at the time of
the first appearance of the Plaintiff on the
141h May 2012. However,
the first time the court and public prosecutor became aware of this
document, according to Exhibit "A",
was on the 18th May
2012. See:
Isaacs v Minister van Wet en Orde
[1995] ZASCA 152
;
[1996]
1 All SA 343
(A);
Woji v Minister of Police
[2015] 1 All SA 68
(SCA);
Botha v Minister of
Safety and Security
2012 (1) SACR 305
ECP
(this is
the same case in unreported form that Mr Pienaar referred to in
argument);
Minister of Safety and Security and Another v
Ndlovu
2013 (1) SACR 339
SCA;
Minister of
Safety and Security v Tyokwana
2015 (1) SACR 597
(SCA);
[49]
In view of the existence of the valid asylum seeker temporary permit,
the Plaintiff should have been released by no later than
14h00 on 12
May 2012. Having regard to the authorities referred to above the
Plaintiff was in unlawful detention since 14h00 on
the 12
th
May 2012. Although I have no doubt with regard to the correctness of
my finding in this regard I need to say, should it become
relevant,
that if I am incorrect with the finding as regards the 12
th
May 2012 then the further detention of the Plaintiff became unlawful
as from his court appearance on the 14
th
May 2012 because
of the fact that the prosecutor and court were not informed by the
police officials of the existence of the valid
asylum seeker
temporary permit on the 14
th
May 2012.
[50]
In the circumstances the Defendant is liable for the unlawful
detainment of the Plaintiff in custody for the period from 14h00
on
the 12
th
May 2012 to his release at court on the 18
th
May 2012. This is a period of 6 days.
[51]
Mr Jozana argued for the dismissal of the claim but argued further
that if anything, the Defendant is only liable for 48 hours
of
detention, namely for the period from Friday 11 May 2012 to the first
court appearance on 14 May 2012. His submission was that
an amount of
approximately R30 000.00 per day would be sufficient compensation. Mr
Pienaar argued for an amount of R250 000.00
depending on the finding
I make with regard to the period of detention, either, on his
submission, to the 14
th
May 2012 or to the 18
th
May 2012
[52]
In the matter of
Woji v Minister of Police
[2015] 1 All SA 68
(SCA)
the Supreme Court of Appeal
in paragraph 38 pointed out that there was no discernible pattern in
awards for unlawful detention other
than that the courts are not
extravagant in compensating the loss. In addition the award of
general damages with reference to awards
made in previous cases was
fraught with difficulty. The facts of the particular case must be
looked at as a whole and few cases
are directly comparable.
See:
paragraph 38 of the Woji-judgment.
[53]
The Plaintiff explained that he is a refugee, that he ran a shop and
made more than R3 000.00 per day. He described appalling
circumstances under which he was held for the whole of the period of
his unlawful detention.
[54]
When one has regard to the facts in the
Woji
matter, I
conclude that the Plaintiffs circumstances were less dramatic and
appalling than those of Mr Woji who was awarded R500
000.00 after
being detained for 13 months and suffered humiliating and degrading
experiences of a worse nature than those that
the Plaintiff suffered.
[55]
In
Phasha v Minister of Police
[2014] JOL
31731
(GSJ)
the plaintiff in that matter was awarded R80 000.00
for some 9 hours of unlawful detention. In
Takawira v
Minster of Police
[2013] JOL 30554
(GSJ)
the
appellant was awarded R75 000.00.
[56]
The basic inquiry is to determine the extent of the Plaintiffs
suffering indignity, unjustified humiliation or loss of self-worth
as
a result of the unlawful detention and to give that loss a monetary
value.
[57]
I do consider it an important factor that the Plaintiff was held in
unlawful custody for a period of 6 days in circumstances
where he
indeed was lawfully in the Republic and where his only mistake that
he did not have the valid asylum seeker temporary
permit in his
possession at the time of his arrest. On production of that document,
it did not persuade the officials of the South
African Police Service
to release him from custody or to ensure that a court release him
from custody before the 18
th
May 2012
[58]
Mr Jozana himself suggested that the amount of R30 000.00 per day
would not be unreasonable (albeit in circumstances where
he was of
the view that any unlawful detention could not be for longer than 48
hours). Mr Pienaar's submission comes down to a
daily amount of
approximately R35 000.00 per day if calculated as from the moment of
arrest.
[59]
After having considered the facts of the matter and the authorities
referred to above I am of the view that R150 000.00 is
just
compensation for the Plaintiffs unlawful detention.
[60]
In paragraph (b) of the Plaintiffs particulars of claim interest is
claimed at the prescribed rate 14 days after judgment.
Accordingly
interest will run from a date 14 days after date of this judgment.
The
mora
interest rate applicable is 9.5% per annum as the
interest rate promulgated in Government Gazette No 397895 of 4 March
2016 will
only become operative as from 1 May 2016.
[61]
In the result I make the following order:
1.
The Defendant is ordered to pay the Plaintiff the amount of R150
000.00;
2.
The Defendant is ordered to pay the Plaintiff interest on the sum of
R150 000.00 at the rate of 9.75% per annum calculated from
21 April
2016 to date of payment;
3.
The Defendant is ordered to pay the Plaintiff s costs of suit.
___________
AJ
LOUW AJ