About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2016
>>
[2016] ZAGPPHC 312
|
|
Mufamadi v Minister of Police (60328/13) [2016] ZAGPPHC 312 (29 April 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
29/4/16
CASE
NO: 60328/13
Not
reportable
Not
of interest to other judges
Revised
In
the matter between:
MATODZI PHILLIMON
MUFAMADI PLAINTIFF
and
MINISTER
OF
POLICE DEFENDANT
JUDGMENT
RANCHOD J:
Introduction
[1]
The plaintiff sues the defendant for his arrest and subsequent
detention on 18 April 2012 at or near Woodbush Plantation, Tzaneen.
[2]
It is alleged that he was arrested by 'Investigator Mkhawane,
Investigator Ngamuni and other officers whose particulars and
ranks
are unknown to the plaintiff.'
[3]
It is further stated in the particulars of claim that the plaintiff
was arrested 'on suspicion of theft, despite his denial
of having
committed the said charge.'
[4]
Plaintiff says he was thereafter 'detained ... for 20 (twenty) days
at the instance of the aforesaid Policeman
(sic)
and other
members of the South African Police Service ...' (SAPS).
[5]
Plaintiff says further that he was released on 81h May 2013 and the
charges were withdrawn. It is common cause between the parties
that
the year should be 2012 and not 2013.
[6]
It is also to be noted that no allegation has been made that the
arrest and detention was unlawful. However, the defendant pleaded
(in
an amended plea) as if the plaintiff alleged unlawfulness. This is
apparent from para 3.3 of the amended plea where it is stated
that
'3.3 In the event
that the ... Court finds that the arrest of the Plaintiff by members
of the Defendant was unlawful, which
is still being denied ....'
[7]
The defendant could have excepted to the particulars of claim on the
basis the particulars did not disclose a cause of action,
but did not
do so. The trial proceeded on the basis that the defendant had to
prove that the arrest and detention was unlawful.
In this regard the
defendant relies on
section 40(1)(b)
of the
Criminal Procedure Act 51
of 1977
, which provides:
'40
Arrest by peace officer without warrant
(1)
A peace officer may without a warrant arrest any
person -
(a)
(b) whom he reasonably
suspects of having committed an offence referred to in Schedule 1,
other than the offence of escaping from
lawful custody;'
[8]
It should be noted that both defendant's and plaintiff's witness
referred to certain statements in the police docket which were
made
by persons other than the witnesses. In the minutes of the second
pre-trial conference held on 15 September 2015 the parties
agreed
inter alia, that 'a document will be what it purports to be, without
the correctness of the contents thereof being admitted.'
However, the
next paragraph, which provides that 'A party wishing to rely on the
correctness of the content of a document, still
has to proof (sic)
same' was deleted - lines having been drawn though it. Both counsel
for the plaintiff and for the defendant
informed me that it had been
agreed that reference to the content of the statements may be made
without the necessity of having
to call the authors of the documents,
which is why it was deleted although, as a consequence of the
deletion the last words of
the previous paragraph 'without the
correctness thereof being admitted' should also have been deleted.
[9]
The plaintiff was arrested on 18 April 2012 on suspicion of theft
(which falls within Schedule 1) of a motor vehicle. The facts
leading
up to the arrest of the plaintiff may briefly be set out as follows.
On 1 April 2012 Mr Magazi Bethuel Vukeya, a truck
driver in the
employ of Woodbush Plantation (Woodbush) in Tzaneen reported to the
police that his employer's vehicle, a Toyota
Dyna Truck with
registration letters and numbers 250 KLF MP had been stolen from his
employer's premises at about 03:00 that same
morning. On 8 April 2012
at about 04:00 Mr Albert Maile Ramalatswi a former employee of
Woodbush spotted the truck travelling on
a road in the plantation
whilst he was travelling in another vehicle. He flicked his lights to
indicate to the other driver that
he should stop but the driver of
the truck did not do so. Mr Ramalatswi followed the truck for about
7km before it finally stopped.
Upon enquiring, the truck driver told
him his name was Mongwe, that he was an employee of Woodbush recently
transferred from Venda
and that he had the manager's permission to
use the truck to convey his wife (somewhere).
[10]
The only witness for the defendant was Warrant Officer Andrew Ngamuni
who has 21 years' experience in the SAPS. He testified
that he was
with other police officers when the plaintiff was arrested on 18
April 2012. He said he arrested and detained the plaintiff
after
investigation of the matter on the basis of information provided by
an informer and Mr Albert Ramalatswi who was previously
employed at
Woodbush, the company where plaintiff was employed. A written
statement was taken later from Ramalatswi on 20 April
2012 by the
investigating officer, Warrant Officer Khoza. He testified further
that an identification parade was also held at which
Mr Ramalatswi
identified the plaintiff. The motor vehicle which belonged to
Woodbush, had not been recovered.
[11]
Warrant Officer Ngamuni testified that he had sufficient information
to form a reasonable suspicion to suspect that the plaintiff
had
committed the offence of theft, hence he proceeded to arrest him. He
testified, both in evidence-in-chief and in cross-examination,
that
the reasonable suspicion that the plaintiff had committed an offence
was based not only on the information provided by an
informer and
that of Ramalatswi but also because the latter had identified the
plaintiff at an identification parade. However,
the identity parade
was held only on 6 May 2012 which was long after the arrest so that
cannot be correct. But the value of the
identification parade, where
Ramalatswi identified the plaintiff, such as it is, is that it, with
hindsight confirmed that the
police had arrested the very person
mentioned by their informer and Ramalatswi.
[12]
In cross-examination, Ngamuni was referred to Ramalatswi's statement
in which he said when he asked the driver of the truck
who he was, he
said his name was Mongwe, in other words that Ramalatswi did not
mention plaintiff's name. Hence, so the line of
cross-examination
went, he could not have formed a reasonable suspicion on which to
arrest plaintiff who has a different name.
However, what Ramalatswi
says in his statement is that that is what the truck driver told him
- not that he knew the driver and
that his name was Mongwe.
Ramalatswi had told the police that he would be able to identify the
person if he saw him again. He did
so at the identification parade
when he identified the plaintiff as the person he saw driving the
truck - albeit that the parade
was held after the plaintiff's arrest.
[13]
In any event, even if one disregarded the evidence about the
identification parade, in my view, the police and in particular,
Ngamuni had sufficient information to reasonably suspect the
plaintiff of having committed an offence and the arrest without a
warrant was in the circumstances lawful. The jurisdictional
requirements for a lawful arrest without a warrant have been
established
by the defendant.
[14]
As I said, the plaintiff was arrested on Wednesday the 181h April
2012. It is not in dispute - in fact the defendant concedes
- that
the plaintiff should have been brought before Court within 48 hours
unless the period of 48 hours expires outside ordinary
court hours or
on a day which is not an ordinary court day.
[15]
During his testimony the plaintiff testified that according to him he
was arrested when the police arrived at his place of
employment at
about 9am and asked him to accompany them. They took him in an
unmarked police vehicle in which he sat in the cabin,
to a corner of
the plantation where they questioned him for about 10 minutes.
Thereafter they took him to a filling station near
Magoebaskloof
where they bought food. Plaintiff said they then handcuffed him and
placed him in the back of the vehicle where the
handcuffs were locked
to a pole and he was told that he was now under arrest.
[16]
Further in his evidence-in-chief the plaintiff said Ngamuni was lying
when he said it was he who had arrested the plaintiff.
However, in
plaintiff's particulars of claim he says that Ngamuni was one of the
policemen who arrested him. In the Arrest Report
it is stated the
arresting officer was Sgt Ramakgopa. There is no dispute that
plaintiff was arrested by police officers in their
capacity as such.
It therefore is not material to the issue before me whether it was
the one or the other police officer.
[17]
In the Arrest Report by Ramakgopa it is stated that the date of
arrest is 19 April 2012 which it is common cause is incorrect.
The
correct date is 18 April 2012. The time of arrest is not stated in
the Report. All this indicates some degree of sloppiness
on the part
of the policemen involved - something that unfortunately occurs all
too frequently.
[18]
It seems to me that the plaintiff was arrested when he was handcuffed
and put in the back of the van, and by plaintiff's own
admission,
that is when he was told he was under arrest, notwithstanding his
testimony that he is of the view that he was arrested
at 9am. The
time of his arrest was in all probability sometime after he was taken
from his place of employment and when he was
detained at the police
station - according to the police investigation diary notes under
Serial Number 959 - at 13:10 on the 181h
by Ngamuni. The 48 hours
therefore expired some time before 13:10 on Friday 201h April.
[19]
Mr Baloyi, who appeared for the defendant stated, erroneously it
turns out, that 201h April 2012 was Good Friday and the following
Monday was Easter Monday. He said since plaintiff was arrested on the
preceding Wednesday at 13:10 the earliest he could be brought
to
court was on Monday the 23rd April. Firstly, if it was indeed Good
Friday (a public holiday) then the following Monday would
also have
been a public holiday. However, the plaintiff was brought before
court on Monday, 23rd April. Hence, it could not have
been Easter
Weekend. Secondly, I think I can take judicial notice of the fact
that a perusal of the 2012 calendar reveals that
Easter Weekend in
2012 was from Friday 6 April to Monday 9 April.
[20]
Plaintiff should have been brought before court by Friday, 20 April
2012 before 13:10. To that extent his detention from Friday
at the
very least from 13:10 until his appearance in Court on the following
Monday was unlawful.
[21]
On 23rd April when plaintiff appeared before court he was remanded in
custody until his release on 8 May 2012. Mr Baloyi submitted
that the
plaintiff's detention after his first appearance in court was a
'judicial' detention, hence the defendant cannot be held
liable for
that period.
[22]
Mr De Klerk, who appeared for the plaintiff, argued to the contrary
and referred the Court to
Minister of Safety and Security and
Another v Ndlovu (788111)
[2012] ZASCA 189
(30 November 2012). In
my view, that case can be distinguished from the facts of this case.
There it was held, firstly, that the
arrest itself was unlawful. The
unlawfulness did not cease when the accused was brought before a
'reception court' which remanded
him in custody without enquiry
whether it is in the interests of justice to detain him further.
[23]
In this matter before me no evidence was led - the onus being on the
plaintiff to do so - as to the circumstances under which
the court
before which the plaintiff was brought on 23rd April, 2012 decided to
remand him in custody. In the circumstances, I
cannot determine
whether the plaintiff s continued detention after his first
appearance in court was unlawful.
[24]
I find, therefore, that the plaintiff's detention after the expiry of
48 hours until he was brought before court on the 23rd
April 2012 was
unlawful, which would equate to just under 3 days of unlawful
detention for which he should be compensated in damages.
[25]
The plaintiff testified on the question of the quantum of damages. He
said it was not a pleasant experience in that the detainees
were
incarcerated in a small cell. He had to sleep on the floor with one
blanket. There was only one toilet to be shared between
them.
[26]
This court was referred to a number of cases on the issue of quantum
of damages. The cases are a useful guide but no two cases
are exactly
alike; ultimately the court has to make a determination on the facts
before it.
[27]
Having considered a number of the decided cases, and the submissions
of both parties, I am of the view that although the conditions
under
which the plaintiff was kept in detention were not ideal, they can be
distinguished from cases where they were worse. In
my view an amount
of R85 000.00 would be adequate compensation in the circumstances of
this case.
[28]
I make the following order:
1. Defendant is ordered
to pay plaintiff an amount of R85 000.00 together with costs of suit.
____________________________
RANCHOD J
JUDGE
OF THE HIGH COURT
Appearances:
Counsel
on behalf of Plaintiff
: Adv C.D De Klerk
Instructed
by
: S.O Ravele Attorneys
Counsel
on behalf of Respondent :
Adv F Baloyi
Instructed
by
: State Attorney
Date
heard
: 3 November 2015
Date
delivered
: 29/4/16