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[2016] ZAGPPHC 958
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Mmabi and Another v Minister of Safety and Security (66598/2012) [2016] ZAGPPHC 958 (21 April 2016)
/SG
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
DATE: 21 April
2016
CASE
NO: 66598/2012
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
In the matter
between:
MP MMABI
FIRST PLAINTIFF
MR
MATHATA
SECOND PLAINTIFF
And
MINISTER
OF SAFETY AND SECURITY
DEFENDANT
JUDGMENT
SWARTZ, AJ
The
first and second plaintiffs issued summons against the defendant as a
result of their wrongful arrest and detention. The
matter
appeared before me by way of a stated case in terms of rule 33(1).
The parties were
ad
idem
on most issues and agreed that the arrest and detention of the first
and second plaintiffs were unlawful. The issues for
determination were crisp and I was only tasked with deciding the
duration of the unlawful detention and the quantum of damages
payable
to each plaintiff, depending on the finding relating to the duration
of the unlawful detention. On behalf of the
first and second
respondents it was contended that the period of detention was nine
days. It was submitted on behalf of the
defendants that the
unlawful detention was for one day only.
The
relevant facts are briefly as follows:
It
is common cause that on 22 May 2012 the first plaintiff was arrested
without a warrant at Nedbank Branch (Dendron Branch, Limpopo)
on a
suspicion of internet fraud and theft involving an amount of
R50 000.00. The amount of R50 000.00 was paid
into
the bank account of the first plaintiff’s company. This
amount was withdrawn and R45 000.00 thereof was paid
into the
account of second plaintiff’s company.
A
second charge of theft through false pretences involving an amount of
R30 000.00 emanated from a complaint in Carolina in
the Free
State.
On
24 May 2012 the first plaintiff was granted bail of R5 000.00 at
the Dendron magistrate court.
On
2 June 2012 the second plaintiff was arrested on the same charges as
the first plaintiff was facing. On 4 June 2012 the
second
plaintiff was joined as accused 2 and was also released on bail of
R5 000.00.
On
6 June 2012 the first and second plaintiffs appeared at the Dendron
magistrate court and the matter was postponed to 18 July
2012.
While leaving the magistrate court and on the same day, i.e. 6 June
2012, after the postponement of the matter, the
first plaintiff was
arrested on a warrant issued in Piketberg. The second plaintiff
was arrested without a warrant.
The
next day, 7 June 2012 the first and second plaintiffs appeared before
a magistrate in Polokwane where charge 1 was withdrawn
against both
plaintiffs. This was the charge emanating from the Piketberg
complaint. It was also the charge being investigated
under the
Piketberg case number and in respect of which the warrant of arrest
had been issued and executed. The state requested
that this
charge be transferred to the Northern Cape where the complainant was
residing in Piketberg. The magistrate issued
a warrant of
removal authorising the removal of both plaintiffs to the Piketberg
police cells.
On
14 June 2012 both plaintiffs appeared before a magistrate in
Piketberg and charged with fraud involving R50 000.00.
The
matter was postponed to the next day, i.e. 15 June 2012.
On
15 June 2012 both plaintiffs pleaded guilty and were sentenced.
On 18 July 2012 both plaintiffs appeared in the
Dendron
magistrate court to face the remaining charge 2. Charges were
withdrawn against the second plaintiff. The first
plaintiff
pleaded guilty to the remaining charge.
At
stated above, the parties are in agreement that the arrest and
detention on 6 June was unlawful and wrongful.
On
behalf of the appellants it was contended that the wrongful detention
was from 6 June 2012 up until 15 June 2012.
They were arrested and detained on the same charges for which they
had been released on bail initially. The bail was never
withdrawn. On behalf of the defendant it was contended that the
detention was unlawful until the next appearance before the
magistrate the very next day, i.e. 7 June 2012. It was
submitted that once the plaintiffs were brought to court pursuant
to
their arrest, the police’s authority to detain became
exhausted. The decision and authority to detain further was
out
of the hands of the police officials.
It
is common cause that the bail on which the plaintiffs were initially
released was never cancelled. It follows that they
were
entitled to their freedom. It is also not in dispute that
factually, they were in detention until 15 June 2012
despite the fact that they were initially released on bail, which
bail was never withdrawn.
Factually,
they were deprived of their freedom.
I
was referred to the typed transcript of the magistrate’s record
of proceedings at their first appearance after the arrest,
on 7 June
2012. The record is incomplete as many of the magistrate’s
handwritten notes are described as “indecipherable”.
Of particular relevance are the following exchanges:
“
Prosecutor
:
The matter is no longer
in my hands. If the investigating
officer for N Cape takes the two accused I am not involved.
Manthata
:
(the legal representative of the accused):
I
request that the bail against the two accused be extended.
Court
:
Mr Manthata can plead
with the police from N.Cape that his client be
warned to appear there. Court adjourns so that defence and
police can enter
into discussions in this regard.
Court
Resumes
Mr
Manthata
:
we have agreed that the two accused be kept in custody.
Court
:
matter closed.”
Counsel
for the parties who appeared before me agreed that the last comment
of the plaintiffs’/accused’s legal representative
be
ignored, as this was apparently never said. It was submitted on
behalf of the first and second plaintiffs that the police
officers
were anxious to take control of the plaintiffs and keep them in
custody, rather than to subject them to the magistrate’s
decision.
Legal
Grounds
:
In
terms of the provisions of section 58 of the Criminal Procedure Act
56 of 1955, the effect of bail being granted is that, the
accused who
is in custody shall be released from custody on payment of the sum
determined or the furnishing of a guarantee to pay.
The release
on bail shall remain, unless sooner terminated, then until a verdict
is given by a court.
Minister
of Safety and Security v Sekhoto and Another
2011 (5) SA 383
par 42:
“
While
it is clearly established that the power to arrest may be exercised
only for the purpose of bringing the suspect to justice,
the arrest
is only one step in that process.
Once an arrest has
been effected the peace officer must bring the arrestee before court
as soon as reasonably possible and at least
within 48 hours
(depending on court hours). Once that has been done the
authority to detain that is inherent in the power
to arrest has been
exhausted. The authority to detain the suspect further is then
within the discretion of the court.”
Minister
of Safety and Security v Tjokwana
2015
(1) SACR 597
(A); at paragraphs 41 to 42:
The
police “… failed dismally to give a fair and honest
statement of the relevant facts to the prosecutor and to bring
all
the relevant circumstances under the attention of (the) magistrate.
On the contrary, they wilfully distorted the truth,
thereby
misleading the prosecutor and the magistrate with the result that the
respondent was remanded in detention and refused
bail, and remained
in custody until his acquittal on 20 July 2009 … it is clear
that his constitutional right to freedom
and security of the person,
was unjustifiably and unreasonably violated by the employees of the
appellant …”
Section
12(1)(a) of the Constitution guarantees everyone the right to freedom
and security of his or her person, including the right
not to be
deprived of his or her freedom.
In
Woji
v The Minister of Police
2015 (1) SA SACR 409 (SCA) it was held that: –
“
the
Constitution imposed a duty on the State and all of its organs not to
perform any act that infringed the entrenched rights,
such as the
right to life, human dignity and freedom and security of the person –
(the police) had a public law duty not
to violate the applicant’s
right to freedom, either by not opposing the application for bail, or
by placing all relevant
and readily available facts before the
magistrate. A breach of this public law duty gave rise to a
private law breach of
the appellants’ rights not to be
unlawfully detained, which could be compensated by an award of
damages.
the
police – … accordingly should not have opposed Mr Woji’s
application for bail, or at least should have told
the magistrate
that in the case of Mr Woji, he was not clearly depicted on the
video. Inspector Kuhn clearly failed in his
duty in this
regard.”
As
I stated above, the fact that the first and second plaintiffs’
arrest and detention on 6 June 2012 were unlawful is not
in dispute.
They appeared before the magistrate on 7 June 2012. Perusal of
the record of proceedings as I have referred
to above clearly
demonstrates the exchanges between the prosecutor who states that
“The matter is no longer in my hands.
If the
investigating officer for N Cape takes the two accused I am not
involved …” Over and above his, the magistrate’s
comments that “Mr Manthata can plead with the police from
N. Cape that his clients be warned to appear there …”
and “matter closed”, to my mind, clearly demonstrates
that that court was
functus
officio
.
Section
50(6) of the Criminal Procedure Act 111 of 1997 reads as follows:
“
(6)(a)
At his or her first appearance in court a person contemplated in
subsection
(1) who –
(i)
was arrested for allegedly committing an offence shall, subject to
this subsection and section
60 –
(aa)
be informed by the court of the reason for his or her further
detention …
(bb)
be charged and be entitled to apply to be released on bail, and
if
the accused is not so charged or informed of the reason for his or
her further detention, he or she shall be released …”
The
plaintiffs should have been released from detention after their
appearance on 7 June 2012. There was no justification
for their
further detention until 15 June 2012. The record is silent as
to any further exchanges and no reasons whatsoever
are provided for
the further detention of the plaintiffs, which detention was unlawful
in the first place. I find therefore,
that the plaintiffs were
held in unlawful detention for a period of nine days, that is, from
6 June 2012 until 15 June
2012.
It
is trite that the determination of an award for general damages is
within the discretion of the court. The court is guided
by but
not tied down to previous awards. Reference to such previous
awards serve merely as a guideline.
The
first plaintiff is 33 years old mother of three children. She
holds a Diploma in Environmental Law and Management from
the
University of Limpopo. Since 1 September 2008 she was employed
as a secretary at the Department of Community Services
at Blouberg
Municipality. She had no previous convictions and apparently
did not receive any financial gain in the offence
she was charged
with. After her unlawful arrest she was held in custody, in an
overcrowded cell with 21 other women in unhygienic
conditions.
She suffered traumatic stress as a result of the detention.
The
second plaintiff is a 35 year old father of four minor children.
In 2010 he was a self-employed driving school instructor.
After
his arrest he was equally subjected to overcrowded unhygienic prison
conditions. He was handcuffed in the journey from
Dendron to
Piketberg. In the cells he was humiliated and threatened.
I
was referred to various case law with previous awards ranging from
R20 000.00 to R160 000.00 in today’s monetary
value.
In
the particulars of claim the plaintiffs sue for payments of the sum
of R150 000.00 each, which amount if fair and reasonable.
Order:
1.
The defendant is ordered to pay the first plaintiff the sum of
R150 000.00;
2.
The defendant is ordered to pay the second plaintiff the sum of
R150 000.00.
3.
The defendant is ordered to pay the costs of the action.
E.L. SWARTZ
ACTING JUDGE OF
THE GAUTENG DIVISION, PRETORIA
Heard
on
:
20-21
April
2016
For
the Plaintiffs
:
Mr. E. Smit
Instructed
by
:
Smit & Maree Attorneys, Polokwane
For
the Defendant
:
Adv. W. Lusenga
Instructed
by
:
State Attorney, Pretoria
Date
of Judgment
:
21 April 2016