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[2016] ZAGPPHC 611
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Magagula v Minister of Safety and Security (A68/2012 ; 33724/2006) [2016] ZAGPPHC 611 (17 May 2016)
THE
HIGH COURT
OF SOUTH AFRICA GAUTENG
DIVISION,
PRETORIA
APPEAL
CASE NO: A68/2012
CASE
NUMBER 33714/2006
0
MAGAGULA
APPELLANT/ PLAINTIFF
AND
MINISTER
OF SAFETY
AND
SECURITY RESPONDENT/
DEFENDANT
JUDGMENT
MODIBA
AJ (Msimeki J and Olivier AJ concurring)
INTRODUCTION
[1]
This
is an
appeal
against
an order
granted
by this
court
per Zonda
J,
awarding
the
appellant damages in
the
amount of
R150,
720
for loss
of
income
and
general
damages
arising
from unlawful arrest and unlawful detention.
He appeals
with leave of the
court
a
quo.
For
convenience
I refer to
the
parties
as they
were
cited
in the
court a
quo.
[2]
The
plaintiff
was
partially
successful
in the
court
a
quo.
The
court
a
quo
declared
his arrest
as well
as
his
detention
from
25 to
30 August
2004
unlawful
[1]
and
awarded
him
damages in
the
amount of
R720
[2]
in
respect
of loss
of
earnings
and R150,
000
in
respect
of
general
damages.
[3]
The
court
a
quo
found
that
his
detention
ceased
to
be unlawful
when
he
was
remanded
in custody
at
his first
court
appearance.
It is for
that
reason that the court a
quo
declared his detention period from the date he was
first remanded in custody, being 30 August 2004 to the date he was
released on
18 October 2005 lawful. Despite the plaintiff's partial
success, the court a
quo
ordered him to pay the
defendant's legal costs.
[3]
The plaintiff appeals the part of the order of the court a
quo
in respect of which he was unsuccessful. He seeks an order
declaring his whole detention period unlawful. He also seeks his
award
for damages adjusted to accord with such a finding. Not only
does the defendant oppose the appeal, he also cross appeals part of
the order of the court a
quo
that declared the plaintiff's
arrest and detention unlawful as well as the damages awarded to the
plaintiff. The cross appeal is
also with leave of the court a
quo.
LEGAL
QUESTIONS TO BE DETERMINED IN
THE APPEAL AND IN
THE CROSS APPEAL
[4]
The following issues are to be decided on appeal:
4.1 whether the
plaintiff's detention ceased to be unlawful when the Krugersdorp
Magistrate's Court remanded him in custody
at his first court
appearance on 30 August 2015. The plaintiff's case is that
his detention did not cease to be
unlawful.
4.2
in
the
event
that I find
the
plaintiff's
whole
detention period
is
unlawful,
the
quantum
of
general
damages
and
loss of
income to
be
awarded to
the
plaintiff
from 25
August
2004
to
18
October
2005.
The
plaintiff
seeks an
award
for
general
damages
and
for
loss
of
income
in
respect
of
the
428
days
spent
in
unlawful
detention.
4.3
whether
the
defendant
was
entitled
to
costs
of
suit in
the
court
a
quo
even
though
the
plaintiff
was
partially
successful
in that
court.
The
plaintiff
contends
that the defendant
was
not
entitled to
costs
of suit
in the
court
a
quo.
[5] The issue to be
decided in the cross appeal is whether Detective Sergeant Nel
harboured a reasonable suspicion that the
plaintiff committed a
schedule 1 offence as envisaged by section 40 (1) (c) of the
Criminal Procedure Act 51 of 1977 (the CPA)
when he arrested him on
25 August 2004. The defendant's case is that he harboured such a
suspicion, therefore the plaintiff's
arrest and detention was
lawful.
BACKGROUND
FACTS
[6]The
above issues will be understood better against the background facts
set out below. These facts are common cause between the
parties.
[7]
The plaintiff's action arises out of the events that took place on 25
August 2004 in Krugersdorp. On that day, a certain Jeffrey
Thabiso
Ndimande (Mr Ndimande) and a male person only identified in the trial
record as Obakeng were arrested on charges of housebreaking
and theft
and taken to the Krugersdorp Police Station. Shortly thereafter and
at approximately 14h30, Inspector Gordon, the investigation
officer
in the murder of Ms Alberts, was given certain information regarding
Mr Ndimande and Obakeng. Ms Alberts, a prominent Krugersdorp
business
woman, was murdered at her home two weeks prior. Inspector Gordon did
not spell out details of this information in his
evidence. Inspector
Gordon immediately made his way to the Krugersdorp Police Station
where he found Mr Ndimande and Obakeng. He
booked them out to his
office in Roodepoort where he questioned them individually in
connection with Ms Alberts's murder. He then
arrested Mr Ndimande for
Ms Alberts's murder. At approximately 16h00 that same afternoon, the
plaintiff was arrested as an accomplice
to Mr Ndimande in Ms
Alberts's murder. Inspector Gordon decided not to arrest Obakeng for
this offence.
[8]
It is common cause that the plaintiff's arrest was not authorised by
a warrant. Murder is one of the offences listed in Schedule
1 of the
CPA. It is also common cause that when he arrested the plaintiff, the
arresting officer acted within the scope and duty
of his employment
with the defendant.
[9]
On the day he was arrested, Mr Ndimande pointed out several scenes,
namely, 777 tavern in Krugersdorp where he spent time with
the
plaintiff on the evening of 15 August 2015 (the night when Ms Alberts
was murdered), the plaintiff's work place where he pointed
the
plaintiff out to Detective Sergeant Nel - leading to his arrest, as
well as the scene of Ms Alberts's murder. These paintings
out were
conducted by Superintendent Eksteen. A few days after his arrest, Mr
Ndimande was taken to Magistrate Visagie to make
a confession.
Magistrate Visagie refused to note the confession after Mr Ndimande
informed her that he was tortured to make it.
[1O]
Mr Ndimande and the plaintiff were later detained at the Krugersdorp
Police cells until their first court appearance on 30
August 2004.
They were remanded in custody. Thereafter, they continued to appear
in court several times. After each court appearance,
they were
remanded in custody at the Krugersdorp Police cells and later at the
Krugersdorp Prison. After several court appearances
and about two
months after his arrest, the plaintiff raised the question of bail.
He was unsuccessful in a bail application opposed
by Inspector
Gordon. Both Mr Ndimande and the plaintiff were kept in custody until
the plaintiff was released on 18 October 2005
without any charges
being put to the plaintiff.
APPLICABLE
LEGAL
PRINCIPLES
[11]
Below I have summarised an ensemble of legal principles from several
reported cases dealing with unlawful arrest and detention
commonly
referred to by our courts. In determining the issues articulated
above, I am guided by these legal principles.
Onus
[12] The
defendant
bears
the
onus
to
prove
that
the
plaintiff's
arrest
and
detention
is lawful.
See
Minister
of
Law and Order v Hurley and another
[4]
and
Zealand
v
Minister
of
Justice
and
Constitutional
Development
and
another.
[5]
If
the
defendant
fails
to
discharge
this
onus,
the
appeal
stands to
succeed
and the
cross
appeal stands to be dismissed.
Unlawful
arrest
[13] For an arresting
officer to effect a lawful arrest without a warrant, the following
jurisdictional facts must be present:
13.1
the arresting officer must be a peace officer;
13.2 he must arrest a
suspect based on a reasonable suspicion that the suspect
committed an offence set out in Schedule
1 of the CPA;
13.3
he must
arrest the suspect without a warrant authorising such arrest.
[6]
[14]
An
enquiry
into
whether an
arresting
officer
arrested
a
suspect
on
a
reasonable
suspicion that
he
committed a Schedule
1 offence
is
objectively justiciable.
The test is
not whether the arresting officer had reason to suspect,
but whether
his
suspicion is founded on reasonable grounds. See
Duncan
v Minister of Law and Order
[7]
Any
additional
information
available
to
the
arresting
officer
when
he
arrests
a
suspect
must also
be
considered to determine whether
he acted on
a reasonable
suspicion.See
Woji
v Minister of Police.
[8]
[15]
In
Powell
NO
v
Van
der
Merwe
NO
and
others
[9]
the
SCA adopted
the
following
definition
of suspicion:
"Suspicion
in its
ordinary
meaning is
a state of conjecture
or surmise
where
proof
is lacking; 'I suspect
but cannot
prove'.
Suspicion
arises at or near the starting
point of an
investigation of which the obtaining of a
prima
facie
proof
is the end."
[10]
[16]
Information
by
a
suspect
which
implicates
another
person
in the
commission
of
an offence,
although
inadmissible
as
evidence
against
a
co-accused
may
be
used to
determine whether
the
suspicion
harboured
by an
arresting
officer was
reasonable.
See
Woji
[11]
supra.
Unlawful
detention
[17] The authority
of the
police to
detain
a
person is
inherent
in
their
discretionary
power to
arrest.
See
Minister
of
Safety
and
Security
v
Tyokwana.
[12]
Once
a detainee
is brought
before
court,
that
authority
is
exhausted.
Further
detention
of
a
suspect
is within
the
discretion
of
the
court and
requires a
judicial
evaluation
to
determine
whether
it
is in the interest
of justice
to
release the
suspect
on
bail. See
Minister
of
Safety and Security v Sekhoto
.
[13]
is the
duty
of a
judicial
officer to
guard against the
accused
being
detained
on
insubstantial
or improper
grounds
and
to ensure that his detention
is
not
unduly
extended.
See
Minister
of
Law
and
Order
v
Kader.
[14]
However
an
order
by the
reception
court
(being
a
court
tasked
with
remanding
cases when
accused
persons
first
appear
in court),
without
a
proper
enquiry
into
whether
or
not
an
accused
person
ought
to
be
detained
pending
trial,
does
not
end
the
unlawfulness of
the
detention
of
an
accused
person
(Ndlovu
supra).
[15]
Whether
the
unlawfulness
of
a
detention
ceases
upon
a
remand
order
by
a
Magistrate
has
to
be answered
with
regard to
the
peculiar
facts
of
each
case
(Tyokwana
supra).
[16]
The
right
to freedom
and
security
of
the person
and
the
State's
duty
to respect
individual rights
[18]
The
Constitution
of
Republic of
South
Africa, 1996 (the Constitution) imposes a positive
duty
on
the
state
and
on
all
its
organs
not
to
perform
any
act
that
infringes
entrenched rights
including
the right
to human
dignity and
freedom and
security of
the
person.
(
Carmichele
v
Minister
of
Safety
and
Security
and
another
(Centre for Applied
Legal
Studies
lntervening)
).
[17]
[19]
Section 12(1)
(a)
of
the
Constitution
protects
the
right
of
a
suspect or
an
accused
person not
to
be deprived
of freedom
arbitrarily
or without
just
cause.
This right
requires
that
every
encroachment
on
a
person's
physical
freedom
be
carried
out
in
a
procedurally
fair
manner
but
also
be
substantively
justified
by
acceptable
reasons
(Sv
Coetzee
and
Others).
[18]
Therefore
a series of Magistrate's Court issued orders
remanding
the
appellant
in
detention
is not
sufficient
to
establish
that the
detention
was not arbitrary or without just cause. Breach of section 12(1) (a)
of the Constitution is sufficient to render the appellant's
detention
unlawful
for the purpose of a delictual claim for damages. See
Zealand
supra.
[19]
Damages
for the infringement of
personal
rights
[20]
The
following
principles
governing the award of money in cases of an infringement of
personality
rights
are
set
out
in the
seminal
Minister
of
Safety
and
Security
v
Seymour
judgment
[20]
:
20.1
Money can
never be more than a crude
solatium
for the
deprivation of what in truth can never be restored.
There is no empirical measure for the loss.
[21]
20.2
The trial
judge
has
a wide discretion to award what the judge
considers
to be fair
and
adequate
compensation
to
the
injured
party.
[22]
A
court will
not
interfere
with
damages
awarded
by the
court
a
quo
on
appeal
unless
there
is
a substantial
variation
or
striking
disparity
between
what
the
trial
court
awarded
and what an appeal court believes ought to have been awarded.
20.3
the
assessment
of
damages
with
reference
to
earlier
cases
is fraught
with
difficulty.
The facts
of
a
particular
case
need to
be
considered
as
a whole
and few
cases
are
directly
comparable.
They
are,
however,
a
useful
guide to what other
courts
have
considered
to
be
appropriate
but they
have
no
higher
value than
that.
[23]
ANALYSIS
[21]
The evidence
of the
parties'
witnesses
is mutually
destructive
regarding
the
identity of
the
arresting
officer
and
the
circumstances
that
led to
the
plaintiff's
arrest.
In
order
to
determine
the
unlawfulness
of
the
plaintiff's
arrest
and
detention,
it
is
important
to
first
reconcile
the
parties'
mutually
destructive
versions.
It
is
trite
that
to
reconcile
mutually
destructive
versions of
the
parties,
the
approach
adopted in
the
Stellenbosch
Farmers Winery
[24]
has
to
be
followed.
The
approach
requires
the
court
to
make
a
finding
on
the
probabilities, having regard to the credibility and reliability of
the parties' witnesses.
[22]
According to Inspector Gordon and Detective Sergeant Nel, the latter
arrested the plaintiff after Inspector Gordon requested
him to assist
with the plaintiff's arrest. Inspector Gordon informed Detective
Sergeant Nel that he sought the plaintiff's arrest
because after
Inspector Gordon arrested Mr Ndimande, Mr Ndimande made certain
admissions to him regarding Ms Alberts's murder and
implicated the
plaintiff. Prior to proceeding to arrest the plaintiff, Detective
Sergeant Nel interviewed Mr Ndimande in Inspector
Gordon's presence
to
confirm
the admissions that Mr Ndimande made to Inspector Gordon. Mr Ndimande
continued to implicate the plaintiff. He informed
Detective Sergeant
Nel that he was with the plaintiff when the plaintiff shot Ms Alberts
at her home and that the murder weapon
will be found where the
plaintiff resides. Mr Ndimande also offered to point out the
plaintiff. It was on the basis of the information
he received from
Inspector Gordon, confirmed by Mr Ndimande, as well as a pointing out
of the plaintiff by Mr Ndimande that Detective
Sergeant Nel arrested
the plaintiff. The evidence of Detective Sergeant Nel regarding the
plaintiff's arrest is supported by the
arresting statement that he
prepared after he arrested the plaintiff. Inspector Gordon
corroborated Detective Sergeant Nel's evidence
in this regard.
[23]
According to the plaintiff and Mr Ndimande, the plaintiff was
arrested by Inspector Gordon. They both testified that they will
be
able to identify Inspector Gordon when they see him. However, when
called upon to identify him in court, they could not do so.
[24]
It seems to me that both Mr Ndimande and the plaintiff made a mistake
regarding the name and identity of the officer who arrested
the
plaintiff. From the record it appears that Mr Ndimande and the
plaintiff's interaction with Detective Sergeant Nel was very
limited.
He arrived at the SAPS Roodepoort Detectives branch office he shares
with Inspector Gordon around 3pm on the day of their
arrest. This was
before the plaintiff was arrested. The plaintiff was arrested at
approximately 4pm on 25 August 2004. Not only
did Inspector Gordon
accompany Detective Sergeant Nel when he went to arrest the
plaintiff, he arrested him on Inspector Gordon's
request. Mr Ndimande
was present when Inspector Gordon requested Detective Sergeant Nel to
assist him with arresting the plaintiff.
After he arrested the
plaintiff, Detective Sergeant Nel left Mr Ndimande and the plaintiff
with Inspector Gordon at approximately
7pm that evening. It does not
appear that Detective Sergeant Nel had another encounter with Mr
Ndimande and the plaintiff in the
428 days of their detention. During
this period, particularly in the first two months of their arrest, it
appears that Mr Ndimande
and the plaintiff had numerous interactions
with Inspector Gordon when he was investigating Ms Alberts's murder.
When the plaintiff
applied for bail some two months after he was
arrested, it was Inspector Gordon who opposed it.
[25]
Despite their long interaction with Inspector Gordon during their
detention, during the trial in the court
a quo
which took
place approximately 7 years after these events, the plaintiff and Mr
Ndimande could not identify him. From these facts,
it appears that
both the plaintiff and Mr Ndimande probably knew that the person who
wanted the plaintiff arrested is Inspector
Gordon. From the evidence,
it appears that even though both the plaintiff and Mr Ndimande did
not clearly remember the name of
this officer, the name 'Gordon'
remained engraved in their minds. In his evidence, the plaintiff
conceded that he may be mistaken
regarding the name and identity of
the person who arrested him due to the lapse of time between his
arrest and the civil trial.
The plaintiff and Mr Ndimande lack a
motive to be dishonest regarding the identity of the police officer
who arrested the plaintiff.
[26]
Given that it was Inspector Gordon who wanted the plaintiff arrested,
that when Detective Sergeant Nel went to arrest the plaintiff
Inspector Gordon accompanied him, as well as the fact that Inspector
Gordon interacted with Mr Ndimande and the plaintiff several
times
during their detention, it is probable that both Mr Ndimande and the
plaintiff made a
bona fide
error regarding the name and
identity of the person who arrested the plaintiff. The probabilities
support a finding that Detective
Sergeant Nel and not Inspector
Gordon arrested the plaintiff.
[27]
It is apposite at this point to reconcile the parties' versions
regarding the circumstances that led to the plaintiff's arrest.
[28]
As already stated, the plaintiff s arrest was prompted by an
admission statement made by Mr Ndimande to Inspector Gordon
implicating
the plaintiff. According to Inspector Gordon, he
interviewed Mr Ndimande for approximately 30 minutes. During this
time they developed
a rapport and Mr Ndimande of his own volition
admitted to being with the plaintiff when the plaintiff shot Ms
Alberts. Inspector
Gordon arrested Mr Ndimande without a warrant. He
denied inducing an admission statement from the plaintiff by torture.
It was
because of the admission made by Mr Ndimande that Inspector
Gordon requested Detective Sergeant Nel to assist him to arrest the
plaintiff.
[29]
Before proceeding to arrest the plaintiff, Detective Sergeant Nel
independently questioned Mr Ndimande to confirm his admission
statement and to assess the plaintiff's risk profile. According to
Detective Sergeant Nel, during the interview, Mr Ndimande laid
all
the blame for Ms Alberts's murder on the plaintiff. Mr Ndimande was
relaxed and did not appear to be under pressure to speak.
He had no
evidence of being assaulted on his face and wrists. He even started
talking about the murder incident whereupon Detective
Sergeant Nel
warned him to be careful because his admission statement was
bordering on a confession. At that point Inspector Gordon
read him
his constitutional rights in Detective Sergeant Nel's presence. Mr
Ndimande then offered to make a confession and to point
out certain
scenes. Detective Sergeant Nel then decided that this information
warrants the plaintiff's arrest. At that point, Detective
Sergeant
Nel started making preparations to arrest the plaintiff.Inspector
Gordon started making arrangements for Mr Ndimande to
make the
confession and the pointing out.
[30]
According to Mr Ndimande, when Inspector Gordon took him to his
office on the day he was arrested, he questioned him about
Ms
Alberts's murder. Mr Ndimande denied any knowledge of this crime.
Inspector Gordon insisted that he knew and started assaulting
him. He
made him lie on his back with his hands handcuffed to the back, sat
on his chest and suffocated him repeatedly with a clear
plastic bag
bearing an SAPS logo, uttering the words
"wit
jy
die waarheid praat?"
repeatedly. While
Inspector Gordon was suffocating him, three other men walked into his
office and assaulted him by kicking him.
While being assaulted like
that, a white lady also walked in. He screamed to her for help. The
white lady walked away without assisting
him. Inspector Gordon then
put him on a chair and told him that he will see what he will do with
him if he does not tell the truth.
Then he asked him where he was on
the day Ms Alberts was killed. He told him that he was at 777 tavern
with a friend watching football.
The friend in question is Owen
Magagula, the plaintiff. He then took him into the car and told him
to show him where the friend
lives. They then drove with another
person who was with Inspector Gordon to the plaintiff s place where
he pointed out the plaintiff.
From the trial record it appears that
this person is Detective Sergeant Nel. The plaintiff was arrested.
They drove back to Inspector
Gordon's office where Mr Ndimande was
locked in a place resembling a court yard. Inspector Gordon and his
colleague took the plaintiff
into Inspector Gordon's office. Later
the plaintiff told Mr Ndimande that Inspector Gordon assaulted and
suffocated him with a
clear plastic bag bearing an SAPS logo. After a
while Mr Ndimande was brought back to Inspector Gordon's office where
the plaintiff
was asked where the fire arm was. Inspector Gordon's
friend then told them to tell the truth otherwise they were going to
shit.
They were beaten up again and after a while taken to the police
cells where they were locked up.
[31]
According to the plaintiff, after he was arrested, he was also
assaulted and tortured by Inspector Gordon and a person he referred
to as his (Inspector Gordon's) colleague using the same method
described by Mr Ndimande. The plaintiff also corroborated Mr
Ndimande's
evidence in material respects regarding the plaintiff's
arrest. He contradicted Mr Ndimande's evidence regarding the place
where
he was arrested and the sequence of events immediately after
the plaintiff's arrest. According to Mr Ndimande, the plaintiff was
arrested at his place of residence. From there they were taken to
Inspector Gordon's office. According to the plaintiff, he was
arrested at his place of work and taken to his house where it was
searched to no avail initially by police officers and subsequently
by
sniffer dogs. From his house the plaintiff was taken to Inspector
Gordon's office where he was interrogated and tortured to
produce a
fire arm. He was then locked up separately from Mr Ndimande in the
cells at the Roodepoort police station. It was at
this point that he
was assaulted and tortured by Inspector Gordon and his colleague. At
midnight on the 26 August 2004, Inspector
Gordon booked him out and
took him to the compound where he stays again. His place of residence
was searched again and nothing
was found. He was taken to the police
cells where he was locked up until he was taken to court several days
later.
[32]
Mr Ndimande further testified that on the evening of his arrest
Inspector Gordon fetched him from the police cells and took
him into
an office where there was a white lady. Again he was asked if he knew
a place where a lady was killed. The white lady
was busy writing.
Thereafter Inspector Gordon gave him a paper and told him to sign it.
When he asked what that paper was for Inspector
Gordon told him not
to ask shit and told him to sign. He was not given an opportunity to
read the paper prior to signing it. When
he tried to read it he was
told to "sign otherwise he will 'shit himself"'. He refused
to sign but was told that if he
does not sign he will be beaten up.
He was in pain and did not want to be beaten up again. It is for that
reason that he signed
it. Inspector Gordon and this white lady then
took him into a car. They told him that they are going to where he
was drinking with
the plaintiff. On arrival he was told to point with
a finger to show that that is where they were drinking. Then someone
took a
picture of him pointing out. From there he was taken to the
plaintiff s place of work where he was told to point out and when he
was pointing out another picture was taken. From there they drove to
Ms Alberts's house where again he was instructed to point
out and a
picture of him was taken in the process.
[33]
It is common cause that the person Mr Ndimande referred to as the
white lady is Superintendent Eksteen. She conducted the pointing
out
by Mr Ndimande at Inspector Gordon's request. When asked under cross
examination what he was pointing at, Mr Ndimande's answer
was that he
was pointing at a wall. He does not know why he was being told to
point out. After the pointing out, he was taken back
to the cells at
the Randfontein Police Station and the following morning taken to
Roodepoort. He requested to be taken to his house
to collect
toiletries and changing clothes. On arrival there his house was
ransacked. Nothing was found. He was taken to the police
station
where Inspector Gordon told him to make a statement implicating the
plaintiff and he will be made a state witness. When
he refused to
make it, he was again assaulted. He was thereafter locked in a
separate cell from the plaintiff. The following day
he was taken out
and again questioned about Ms Alberts's murder and specifically about
the firearm. He was taken to his place of
residence where his house
was searched again to no avail.
[34]
He was made to appear in court several days later. On the day of his
first court appearance he was taken to a Magistrate's
office. On
their way to the Magistrate's office Inspector Gordon again promised
to make him a state witness if he made a statement
to the Magistrate
to the effect that the plaintiff killed Ms Alberts. It is common
cause that the Magistrate in question was Magistrate
Visagie.
Inspector Gordon remained outside the Magistrate's office. Mr
Ndimande refused to make the statement. He informed the
Magistrate
what Inspector Gordon promised him. He also informed the Magistrate
that Inspector Gordon and his colleagues assaulted
and tortured him
to make the statement.
[35]
At their first court appearance, when the presiding Magistrate
remanded them in custody at the police cells in Krugersdorp,
according to both Mr Ndimande and the plaintiff, they raised their
hands and complained to the presiding Magistrate not to let
them go
with Inspector Gordon because he ill-treats them. The presiding
Magistrate ignored their complaint and told them to go
with Inspector
Gordon because he was still investigating the case. When they left
the court, Inspector Gordon assaulted them further
by handcuffing
their one hand together, tightening the hand cuffs and putting his
hand in them to press their hands further against
the handcuffs,
causing them pain. He told them that they are talking nonsense and
took them to the Krugersdorp Police cells.
[36]
The allegations of assault and torture made against Inspector Gordon
and Detective Sergeant Nel were met by a bare denial by
these two
officials.
[37]
According to Superintendent Eksteen, Inspector Gordon was not
involved in the pointing out at all. Mr Ndimande pointed out
the 777
tavern, the construction site where the plaintiff works and the scene
of Ms Alberts's murder voluntarily. He was easy to
work with. He
showed no sign of distress. She did not observe any injuries on Mr
Ndimande. Pictures of Mr Ndimande taken prior
to the pointing out
also do not indicate injuries on Mr Ndimande. He never complained to
her about being assaulted by anyone.
[38]
I find it astonishing that of the chain of people who were invited by
Inspector Gordon to assist with various aspects of his
investigation
of Mr Ndimande's involvement in Ms Alberts's murder, Magistrate
Visagie was not called. On 30 August 2004 Mr Ndimande
was taken to
Magistrate Visagie to make a confession. He refused to make a
confession before Magistrate Visagie and informed her
that he was
coerced to make it. In the aborted confession statement which was
admitted by the court a
quo,
Magistrate Visagie reports that
she observed and was informed by Mr Ndimande of the following
injuries: slight laceration on the
left eye brow, scratches on the
left and right elbows; a slight cut in the right forearm caused by
hand cuffs; both forearms swollen;
chest still painful from being sat
on; back of head swollen; neck still painful from the pressure caused
by the plastic bag; slight
scratch on ankle sustained when his ankle
was pressed against the floor.
[39]
Mr Ndimande also informed Magistrate Visagie that Inspector Gordon
comes at any time into the cell where he is kept, books
him out and
goes and assaults him. He put him under extreme pressure. Magistrate
Visagie also noted that Mr Ndimande informed her
that Inspector
Gordon forced him to make a statement to Superintendent Eksteen on
the day of his arrest but did not want to repeat
it because he made
the statement under duress.
[40]
A cursory examination of the evidence of the parties' witnesses and
in particular, the evidence of Detective Sergeant Nel regarding
the
plaintiff's arrest, as well as that of Mr Ndimande and Superintendent
Eksteen, regarding the events that transpired during
the pointing
out, may sway anyone reading the trial record towards a finding that
the plaintiff and Mr Ndimande are not reliable
and that Mr Ndimande
lacks credibility. I say so for the following reasons:
40.1
the plaintiff and Mr Ndimande have a poor recollection of the
identity of the plaintiff's arresting officer;
40.2
the evidence of the plaintiff and Mr Ndimande regarding the
plaintiff's place of arrest and sequence of events
after
the plaintiff's arrest is contradictory;
40.3 Mr Ndimande's
evidence regarding Inspector Gordon's participation in the
pointing out, when weighed against
the evidence of the defendant's
witnesses in respect of the pointing out seems improbable
because:
40.3.1
he fails to elaborate on how Superintendent Eksteen's party knew
how to get to
the scenes that he
pointed out. It is not clear in particular how
Superintendent Eksteen's party would have known
the directions
to the 777 tavern because of the 3 scenes that Mr Ndimande
pointed out, it is the only scene that Inspector
Gordon has not
been to prior to the pointing out. Given that on Mr Ndimande's
version, Inspector Gordon instigated the
pointing out and was
present during the pointing out, one would have expected him to
have testified that Inspector Gordon
directed Superintendent
Eksteen's party to the scenes that he pointed out. This crucial
aspect of a pointing out process
is missing from his evidence.
his response to a
question under-cross examination regarding what he was pointing at
- his answer was that he was pointing
at a wall - seems unfounded;
[41] Mr Ndimande's
evidence is also contradictory in several other respects. He
testified in chief that the police men who
came in when he was
being suffocated by Inspector Gordon sat on his legs. Later he
changed this version to say they pressed
his legs against the
floor. He also testified that when he was torturing him, Inspector
Gordon uttered the words:
"will jy
die waarheid
praat"
repeatedly. When questioned under
cross-examination he said Inspector Gordon swore at him saying
"Kaffer
praat,
Kaffer praat,
jy moet
die
waarheid praat".
Furthermore, when questioned about why he refused to make a
confession before Magistrate Visagie, he testified that he
informed
Magistrate Visagie that Inspector Gordon threatened to
kill him when he was torturing him. However, in his evidence in
chief
he never mentioned that Inspector Gordon threatened to kill
him. His evidence was that Inspector Gordon used the words: 'you
will see what I will do to you.'
[42]
The plaintiff failed to identify the official who together with
Inspector Gordon assaulted him in Inspector Gordon's office
after he
was arrested. Although I found that Detective Sergeant Nel arrested
the plaintiff in Inspector Gordon's company, there
is no basis from
the plaintiff's evidence to find that Detective Sergeant Nel was
present in Inspector Gordon's office when the
plaintiff was assaulted
as claimed. The plaintiff failed to establish prima facie that
Detective Sergeant Nel assaulted him. For
that reason, I do not find
fault with Detective Sergeant Nel's bare denial of the torture.
[43]
The contradictions in Mr Ndimande's evidence as well as between the
evidence of Mr Ndimande and the plaintiff relates to details
of
events testified about and do not in my view affect the veracity of
their evidence. Mr Ndimande and the plaintiff also lack
a good recall
of some details of this incident. In view of the long time lapse
between their arrest and the proceedings in the
court a
quo,
poor
recall of the incident and contradictions on such details are not out
of the norm.
[44]
Despite finding that the evidence of the plaintiff and Mr Ndimande is
poor in the respects detailed in paragraphs 42 to 44
above, I find
their evidence of the torture in respect of Inspector Gordon too
detailed to dismiss as a fabrication. I find it
disconcerting that
Inspector Gordon did not deal with the torture claims in his
evidence, save to barely deny them. The court a
quo
also had
difficulty with the cursory manner in which Inspector Gordon dealt
with the allegations of torture by these witnesses.
When one examines
Inspector Gordon's evidence against the totality of the evidence of
the parties, a completely different picture
emerges.
[45]
I have several difficulties with Inspector Gordon's evidence.
Firstly, he failed to take the court into his confidence regarding
the information that he received telephonically from an undisclosed
informant that led him to interrogate Mr Ndimande and Obakeng
and to
arrest Mr Ndimande. It concerns me that his evidence on the crucial
question of what exactly led him to question Mr Ndimande
and Obakeng;
and on what basis, apart from the controversial admission statement
by Mr Ndimande, he moved from Obakeng to suspect
that the plaintiff
was involved in Ms Alberts's murder. His evidence on this crucial
aspect is nebulous. This connection is important
because at that
point, Inspector Gordon had been investigating Ms Alberts's murder
for two weeks and had not secured evidence linking
any suspect to
this callous deed.
[46]
Secondly, his evidence regarding Mr Ndimande's verbal admission
statement contradicts what he recorded in his arresting statement
in
respect of Mr Ndimande. He testified that Mr Ndimande told him that
the plaintiff shot Ms Alberts. In the arresting statement,
Inspector
Gordon stated that Mr Ndimande told him that he (Mr Ndimande) shot
the plaintiff. When cross examined on this aspect,
Inspector Gordon's
response was that his use of
'hy'
in the relevant
paragraph in the arresting statement was in reference to the
plaintiff. The court a
quo
found and in my view
correctly so, that his use of
'hy'
in that paragraph
was clearly in reference to Mr Ndimande. The only inference to draw
from Inspector Gordon's evidence in this regard
is that he
deliberately changed his version to give gravitas to his reasons for
wanting the plaintiff arrested.
[47]
Thirdly, when Detective Sergeant Nel interviewed Mr Ndimande in
Inspector Gordon's presence, according to Detective Sergeant
Nel, Mr
Ndimande informed him that the plaintiff shot Ms Alberts. At this
point, Inspector Gordon became aware that Mr Ndimande's
admission
statement is contradictory. However he did not question Mr Ndimande
further to clarify this important contradiction.
I find this
disturbing. From the record, it also does not seem that he brought
the contradiction in Mr Ndimande's admission to
Detective Sergeant
Nel. He instead accompanied Detective Sergeant Nel when he went to
arrest the plaintiff.
[48]
These concerns raise a serious question about Inspector Gordon's
credibility. From the record, I find that Inspector Gordon
was not a
credible witness.
[49]
The veracity of Inspector Gordon's evidence is further weakened by
the following:
49.1 From the evidence
that I have detailed in paragraphs 36-40 above, we see that
things took an interesting turn when Mr
Ndimande and the plaintiff
interacted with officials outside the SAPS for the first time since
they were arrested. When he was
taken to Magistrate Visagie and when
he appeared in court for the first time, Mr Ndimande complained to
these officials of being
tortured and ill-treated by Inspector
Gordon. This supports the probability that until then, they only
came into contact with
SAPS officials who they perceived to be one
company who could not be trusted.
49.2
Magistrate Visagie's observed injuries on Mr Ndimande a few days
after his arrest: I find it inexplicable that Superintendent
Eksteen did not observe any injuries on Mr Ndimande when he was
brought to her on the day of his arrest. Magistrate Visagie's
evidence ought to be given more weight than that of
Superintendent Eksteen for the following reasons:
49.2.1
She is independent of the SAPS. For that reason, Mr Ndimande is
likely to be comfortable to complain to her about
Inspector Gordon's
ill-treatment;
49.2.2 As a judicial
officer one expects her to be more arduous in her assessment of
Inspector Gordon's conduct and more eager
not only to respect Mr
Ndimande's rights as a person suspected to have committed an
offence, but to also be more prudent
in exercising her duty to
protect Mr Ndimande's rights;
49.2.3 Injuries are also
not visible on photographs of Mr Ndimande taken when he was in
Superintendent Eksteen's office, yet when
he attended Magistrate
Visagie's office a few days later, Magistrate Visagie observed
injuries on Mr Ndimande.
[50]
Magistrate Visagie's evidence raises the following probabilities:
50.1 Mr Ndimande did
not have injuries because Inspector Gordon deliberately used a
plastic bag to torture him so that he
does not leave any trace of
the torture.
50.2
Superintendent Eksteen either did not take care to observe
injuries on Mr Ndimande prior to the pointing out; or
50.3 at the very
worst, Superintendent Eksteen ignored the injuries to protect her
colleague.
[51]
The first conjecture does not explain why Mr Ndimande was bruised
from being kicked by Inspector Gordon's colleagues. For that
reason,
I find this conjecture improbable.
[52]
When Superintendent Eksteen was preparing Mr Ndimande for the
pointing out, photographs of Mr Ndimande were taken. Injuries
cannot
be seen on photographs taken by Sergeant Viljoen prior to pointing
out. There is no evidence on record that photographs
of Mr Ndimande
were taken at close range. If they were taken, the trial record does
not reflect that such photographs were admitted
during the trial.
They were also not part of the appeal record. Only two photographs of
the plaintiff taken during the pointing
out were taken of him only
wearing underpants. From these pictures, a conclusion cannot be drawn
that he did not have injuries
when he attended Superintendent
Eksteen's office. This supports the second conjecture that I deal
with in paragraph 51.2 above.
[53]
From the record, Superintendent Eksteen's evidence seems to be
straight forward. I have no reason to doubt her credibility
as a
witness. There is also no evidence of collusion between her and
Inspector Gordon. Apart from the uneven evidence of Superintendent
Eksteen and Magistrate Visagie in respect of Mr Ndimande's injuries,
the trial record does not provide any basis for second guessing
Superintendent Eksteen's evidence.
[54]
This leaves me, particularly in light of the unreliable nature of the
pictures of Mr Ndimande taken prior to the pointing out,
with the
second conjecture being more probable. I therefore find
Superintendent Eksteen's evidence on this aspect unreliable. I
am not
satisfied that she properly observed injuries on Mr Ndimande before
the pointing out.
[55]
I am of the view that the report of assault and torture given by Mr
Ndimande to Magistrate Visagie; and that given by the plaintiff
and
Mr Ndimande to the presiding Magistrate when they first appeared in
court is the straw that breaks the camel's back. These
are the first
officials outside the safety and security service to whom they
reported their assault and torture. They probably
felt safe to report
to them because they are not part of the safety and security service.
Until then, apart from the people they
interacted with at their
respective residences when their places of abode where searched, they
only came into contact with SAPS
officers. A few of these SAPS
officers either joined in the assault or ignored their requests for
help; for example, the three
officers and a white lady who walked
into Inspector Gordon's office during Mr Ndimande's interrogation.
[56]
Given that Magistrate Visagie observed injuries on Mr Ndimande a few
days after he was allegedly tortured, and in the light
of my finding
that Superintendent Eksteen failed to properly observe injuries on Mr
Ndimande, it is probable that Mr Ndimande had
these injuries when he
attended Superintendent Eksteen's office.
[57]
Interestingly, Magistrate Visagie was not called to testify in the
court a
quo.
Given the contents of the aborted confession
statement she took from Mr Ndimande, it is not far-fetched to draw a
negative inference
that she was not called to testify because her
evidence would not have supported the defendant's version. I
therefore draw a negative
inference from the defendant's failure to
call Magistrate Visagie to testify at the trial.
[58]
Given that Inspector Gordon did not have any evidence linking any
suspect to Ms Alberts's murder, coupled with lack of clarity
regarding what led him to suspect Mr Ndimande to be party to Ms
Alberts's murder in the first place, gives rise to the probability
that his only prospect of securing a conviction against the plaintiff
and Mr Ndimande is their confession to murdering Ms Alberts.
This
would probably give him sufficient reason to torture and assault Mr
Ndimande.
[59]
The concerns that I have regarding Inspector Gordon's evidence (see
paragraphs 45 to 49), as well as the totality of the evidence
strongly support a probability finding that Inspector Gordon tortured
and ill-treated the plaintiff and Mr Ndimande as alleged.
His version
is improbable. I therefore agree with the court a
quo'
s
rejection of Inspector Gordon's evidence.
[60]
Next I determine whether the plaintiff's arrest was based on
reasonable grounds.
Unlawful
arrest
[61] The defendant's case
on appeal rests solely on whether Detective Sergeant Nel as the
official who arrested the plaintiff, harboured
a reasonable suspicion
as required by section 40 (1) (c) of the CPA, that the plaintiff was
involved in Ms Alberts's murder.
[62]
When he arrested the plaintiff, Detective Sergeant Nel relied on two
nebulous reports on the plaintiff's participation in Ms
Alberts's
murder, namely the vague information received from Inspector Gordon
regarding Obakeng and Mr Ndimande and an admission
statement by
Ndimande implicating the plaintiff. He ought to have enquired deeper
into the reasons why Inspector Gordon wanted
the plaintiff arrested.
Detective Sergeant Nel executed Inspector Gordon's request to arrest
the plaintiff without properly enquiring
into the reasons for this
request. Bearing in mind the judgment
in
Powell NO,
that
suspicion is established on a continuum, the beginning of which is
when a suspicion rises without proof and is completed when
prima
facie
proof is obtained; at the very least Detective
Sergeant Nel should have established whether there is evidence that
links the plaintiff
to Ms Alberts's murder. The implication of the
plaintiff by Mr Ndimande only served to prompt a suspicion. It was
insufficient
to establish it. Detective Sergeant Nel failed to
independently formulate a suspicion regarding the plaintiff's
involvement in
Ms Alberts's murder. The probabilities suggest that
his decision to arrest the plaintiff was swayed by Inspector Gordon's
request
to assist him to arrest the plaintiff.
[63]
The cursory manner in which Detective Sergeant Nel dealt with
Inspector Gordon's request relegates his role to that of a person
who
executed an instruction to arrest the plaintiff without independently
formulating a suspicion as required by section 40 (1)
(c) of the CPA.
His conduct was nothing short of that of a messenger who accepted
information given to him without questioning
it.
[64]
There is a pivotal interplay between section 40 (1) (c) of the CPA
and section 12 (1)
(a) of the Constitution.
In
Coetzee,
O' Regan's J defined the content of the right of a
suspect or an accused person not to be deprived of freedom
arbitrarily or without
just cause to include not only the procedure
followed in arresting a suspect, but also the substantial reasons
therefore. To accept
Detective Sergeant Nel's evidence that he
arrested the plaintiff on reasonable suspicion will pay lip service
to this important
constitutional right - having regard to its
definition by O'Regan J. In the absence of evidence linking the
plaintiff to Mrs Alberts's
murder, his reliance on Ndimande's
so-called admission also falls short of the requirement for
substantial reasons for an arrest
as required by section 12 (1) (a)
of the Constitution.
[65]
I find that when he arrested the plaintiff, Detective Sergeant Nel
did not have a reasonable suspicion that the plaintiff was
involved
in Mrs Alberts's murder as required by section 40 (1) (c) of the CPA.
I also find that he lacked substantive reasons to
arrest the
plaintiff as required by section 12 (1) (a) and (c) of the
Constitution. Therefore I find that the Plaintiff's arrest
was
unlawful.
Unlawful
detention
[66]
In light of the unlawfulness of the plaintiff's arrest, his detention
from 25 August 2004 to 30 August when he first appeared
in court is
inherently unlawful. This is in line with the decision in
Tyokwana.
It is common cause that Inspector Gordon was responsible for
the plaintiff's detention. His detention of the plaintiff under the
circumstances mapped out above (knowing that Mr Ndimande's purported
admission statement was induced by torture, that it was contradictory
and that in the absence of this precarious information, he lacked
evidence that links the plaintiff to Ms Alberts's murder) amounts
to
an arbitrary deprivation of his freedom without just cause. There was
no substantial reason for the detention. Therefore, the
plaintiff was
also detained in violation of section 12 (1) (a) and (c) of the
Constitution. I confirm the court a
quo's
finding that his
detention was unlawful.
[67]
When
Mr
Ndimande
and the
plaintiff
appeared
in
court
on
30 August
2004
and
on
subsequent occasions until
the
plaintiff raised
the
question of bail
in
October
2004, it appears that they were not informed of their right to apply
for bail as contemplated
in section
50 (1)
(b)
read with
section
50 (6)
(c) of the
CPA.
[25]
When
he was
remanded
in custody
by
the
presiding
Magistrate,
it does
not appear
that the
plaintiff
was
informed of
the
reason
for his
detention.
From
the
first
day
of
the
plaintiff
s
appearance
in
court,
there
appears
no reason
why
he
was
detained
further
because
Inspector
Gordon
knew that
he did
not have
any evidence that linked him to Ms Alberts's
murder.
He did not
inform the Public Prosecutor and as a result this
information
was
not
placed
before the
presiding
Magistrate.
It does
not seem
that
an
enquiry
into
the
reasons
for
the
plaintiff's
further
detention
was
conducted
when the plaintiff appeared in court on 25 August 2004. Therefore,
in line
with the decision in
Zealand
and
in
Ndlovu,
the
presiding
Magistrate's
order
remanding
the
plaintiff
in custody
did not sanitize the unlawfulness of his detention.
[68]
When the Plaintiff applied for bail some two months after he first
appeared in court, from the appeal record it also does not
appear
that Inspector Gordon played open cards with the court regarding the
absence of evidence linking the plaintiff to Ms Alberts's
murder.
Again, from the trial record, it does not appear that the presiding
Magistrate enquired into the reasons for the plaintiff's
continued
detention during the bail application. Inspector Gordon's evidence is
silent on this aspect. He opposed bail on the basis
that he needed to
take blood samples from the plaintiff and Mr Ndimande for DNA
analysis purposes. The presiding Magistrate refused
to grant the
plaintiff bail because Inspector Gordon informed him that the
plaintiff does not have a fixed address. There is no
evidence why
Inspector Gordon did not accept the address of the plaintiff's abode
in Chanclif where he conducted a search for the
murder weapon.
[69]
After Mr Ndimande and the Plaintiff were denied bail, they were
further remanded in custody for three months. Inspector Gordon
only
arranged for the collection of Mr Ndimande
and
the plaintiff's blood samples close to their next date of appearance
in court, further unjustifiably prolonging their stay in
detention.
[70]
The plaintiff and Mr Ndimande appeared in court several times
thereafter. On every occasion of their appearance they were remanded
in custody on the basis that the DNA results were pending. After
spending approximately 428 days in detention, charges against
them
were withdrawn and the plaintiff was released due to lack of
evidence. No charges were put to them.
[71]
The plaintiff was detained without a just cause from the first day
for the following reasons:
71.1
his detention was predicated on an unlawful arrest;
71.2 there was no
evidence linking him to Ms Alberts's murder. Therefore there
was no substantive reason for his detention
on each occasion he was
remanded in custody;
71.3 he was not
informed of his right to apply for bail forthwith after his arrest
and when he first appeared in
court;
71.4
when he eventually applied for bail his application was
unreasonably opposed by Inspector Gordon who failed to disclose
information that would have counted in the plaintiff's favour;
71.5
the presiding Magistrate does not seem to have conducted an
enquiry into the reasons for the plaintiff's further
detention
at any stage during the plaintiff's detention.
[72]
In light of the foregoing, I find that the plaintiff's detention from
30 August 2004 to 18 October 2005 was unlawful.
Damages
[73] The amount to be
awarded for damages falls within the discretion of the trial
court.
[26]
It may only
be set aside by the appeal court in the event of a misdirection. The
award made by the court a
quo
in
respect of both the unlawful arrest and unlawful detention and the
loss of earnings was limited to the period of detention found
to be
unlawful. Having found that the whole period of the plaintiff's
detention was unlawful, sufficient cause exists to set aside
the
amount
awarded
by the
court
a
quo
in
respect of
both heads
of damages
and to
replace
it
with
an award that accords with the whole
period
that the
plaintiff spent in
unlawful
detention.
[27]
Quantum
for loss
of income
[74]
When he was
arrested, the plaintiff worked
on a
construction
site 7 days
a week.
He
earned R120
per
day, paid
fortnightly.
Counsel
for
the
defendant
argued
that
he
was
employed on a temporary capacity therefore the amount of R720 awarded
by the court a
quo
in
respect
of
loss
of
earnings
was
appropriate.
The
award
made
by
the
court
a
quo
was
based
on
6
days
detention
from
the
day
the
plaintiff
was
arrested
to
the
day
of
his
first
appearance
in court.
No evidence was placed before the court a
quo
that
his contract would have expired on 5 September 2004 or at any time
during the period of his detention. There is therefore
no basis
for limiting his loss of earnings
as argued
by Counsel
for the defendant. The concern raised by Counsel for the defendant is
best dealt with by allowing a contingency deduction.
In my view,
it is appropriate in the circumstances of this case to allow the
plaintiff the proverbial 5% contingency deduction
[28]
to his proven past loss of income.
[75]
The
plaintiff
spent
428
days
in
unlawful
detention.
He
ought
to
have
worked
a
45 hour
week by law.
[29]
No evidence
was placed before the court a
quo
regarding
his conditions
of
employment
in
respect
of
the
additional
2
days
that he
worked
weekly,
particularly whether he was paid overtime for any work done in excess
of 45 hours per week.
However,
given the
length of
the
plaintiff's
detention,
it is
unconscionable that
he would
have worked
for 428 days flat out. This would have amounted to a 63 hour week,
which would have been unlawful. This issue was
not raised
in the court a
quo,
probably
because the award made by the court
a
quo
in
respect
of
loss of
earnings
was
only for 6
days. This
issue was
also
not argued
on
appeal.
However,
the
interests
of
justice
require
that
I take
it
into
account
in
determining the plaintiff's loss of income.
[76]
In the absence of evidence regarding overtime and compensation for
it, the plaintiff has only proved his entitlement to loss
of earnings
for a 45 hour week of work from 30 August 2004 to 18 October 2005.
This translates to 296 working days. He would have
therefore earned
R35, 520 during the period of his unlawful detention. The value of
this
amount
on 31 March
2016
is
R62, 705.23 after allowing
a 5%
contingency
deduction.
[30]
In
the premises, the plaintiff is entitled to damages for loss of
earnings in
the latter
amount.
Quantum
for unlawful
arrest
and detention
[77]
Two of the
rights of the plaintiff that were infringed are embodied in the
Constitution; namely,
the
right to
dignity
and the
right
not to
be deprived
of
one's
freedom
without
just cause.
The Constitutional Court has recognised a delictual claim for damages
brought under
section
12(1)
(a) of the
Constitution which
is based on
the
unreasonable
and
unjustifiable infringement
of
an
individual's
right
not to
be
arbitrarily
deprived
of
freedom
or
to
be
so deprived
without just cause. See
Zea/and.
[31]
[78]
A determination of the plaintiff's damages for unlawful arrest and
detention, involves an assessment of the extent of violation
of
affected personal rights and the duration of the infringement. It
necessitates an enquiry into the following objective and subjective
factors:
(a)
loss of
reputation in the eyes of others, (b) the emotional effect of the
infringement on the plaintiff, (c) the manner of arrest
and (d) the
conditions under which he
was
detained.
[32]
[79]
It
is
incumbent
upon
the
plaintiff
to
lead
detailed
evidence
regarding
his
personal
circumstances,
the events
surrounding
the arrest
as well as all relevant details concerning the
detention
including
its
nature,
duration
and
incidents
that
may
have
occurred.
[33]
The plaintiff was
arrested
at work
in the
presence
of his
superior
and
colleagues.
No evidence
was led regarding the size of the police contingent when he
was
arrested and on the manner in which
the
arrest
was
executed.
From
the
evidence
the
following
people
accompanied
Detective Sergeant Nel
when he
attended the plaintiff's place of work to arrest him: Inspector
Gordon, Mr Ndimande and an undisclosed
number of
members of
the tracing
unit. Also
no evidence
was led regarding the number of people who witnessed the unauthorised
search of his abode, the emotional and psychological
trauma of the
arrest, the conditions in which the plaintiff was
detained
while
awaiting
trial
as well
as the
plaintiff's
pre- and
post-
detention quality of life and state of health.
[80]
In
Mokoena
v
Minister
of
Safety and Security
[34]
the
court
per Spilg
J (Modiba
AJ
concurring)
stated as follows
regarding
failure
by
a plaintiff to lead evidence that allows the court to take all
relevant factors
into
account when determining the amount of damages for unlawful
arrest and
detention:
"It
would therefore be incorrect to conclude that a party will only be
entitled to a nominal award if he or she does not eloquently
and
vividly describe the effects of the arrest and detention. Moreover
the court is entitled to assume that, barring any evidence
to the
contrary, a plaintiff will suffer a loss of self-worth, will perceive
that others have a lower estimation of him, that he
will suffer
embarrassment, is likely to lose a degree self-confidence and will
experience vulnerability, humiliation and a feeling
of being impotent
as a consequence of a wrongful arrest and detention."
[81]
From the trial record, there is cause to find that the plaintiff was
humiliated before his colleagues and superior when he
was arrested.
Given the chain of events after his arrest, including a prolonged
unexplained detention period as well as refusal
of bail without
justification as dealt with in the preceding paragraphs, I am
satisfied that the plaintiff suffered emotional trauma
as a result of
the unlawful arrest and unlawful detention. On the strength of the
judgment in
Mokoena,
despite the shortcomings in the
plaintiff's evidence regarding how the unlawful arrest and unlawful
detention has affected him and
in the absence of contrary evidence, I
find that as a result of the trauma endured during his arrest and
detention, the plaintiff
has suffered loss of self-worth,
self-confidence, low estimation of his perception by others,
humiliation and impotence.
[82]
In reaching a conclusion regarding the amount to be awarded to the
plaintiff in respect of general damages for unlawful arrest
and
detention I have considered the following cases:
82.1
Seymour.
R90 000 in 2006 - 5 days
detention but only one night in a cell;
82.2
Makgae
v Minister of Safety and Security:
[35]
:
R75
000.00 in 2014 -
2
nights
detention.
82.3
Sobopha
v
Minister
of
Police:
[36]
R60
000.00
in
2013
-
20
hours
detention;
82.4
Baasden
v Minister of Safety And Security
[37]
R120,
000.00 in 2014 -
24
hours
detention;
82.5
Khanyile
v
Minister
of
Police:
[38]
R
11O
000.00
in
2013
-
56
hours
detention;
82.6
Lamula
and
Others
v
Minister
of
Police:
[39]
R100 000
in 2013 -
5
days detention;
82.7
Duarte
v
Minister
of
Police:
[40]
R75
000
in
2013
for
arrest
and
4
hours
detention only- separate award
for
assault)
82.8
Phasha
v
Minister
of
Police:
[41]
R80
000
in
2012
-
9
hours
detention;
82.9
Sithebe
v
Minister
of
Polic:e
[42]
R140,
000
in
2014
-
3
days
detention;
82.10
Wojii
(supra): RSOO, 000 from 12 December 2007 to 13
January 2009 (397 days).
[83]
No amount of money can compensate the plaintiff for the infringement
of his freedom, human dignity and security of the person
that he
endured at the hands of Detective Sergeant Nel and Inspector Gordon
during the events that gave rise to this claim.
[84]
In the premises, I am satisfied that an award of R750, 000 for
general damages for the 428 days the plaintiff spent in detention
is
appropriate.
[85]
The defendant's cross appeal fails.
LEGAL
COSTS
[86]
With the plaintiff having completely succeeded on appeal, it is
appropriate that costs follow the course. No evidence was led
regarding why a different order in respect of costs should be made in
the circumstances. Given the plaintiff's entitlement to costs
of
suit, it is superfluous to determine the appropriateness of an
adverse cost order against him where he succeeds in respect of
the
cause of action but only proves a nominal proportion of the amount
set out in his particulars of claim. This is one of the
questions the
plaintiff sought to be determined on appeal.
Costs
of two counsel
[87] The plaintiff was
represented by Advocate Geach SC assisted by Advocate Seeima, a
junior. Counsel for the state argued that
this matter did not warrant
briefing two counsel; therefore, in the event that the plaintiff is
successful, he is only entitled
to the costs of 1 counsel. I
disagree. This was not a simple unlawful arrest and detention case.
Relative to other similar cases,
the appeal record was long. It
approximates over 1,000 pages. The evidence is intricate and required
careful consideration. The
jurisprudence on the issues to be decided
is vast.
[88]
In the premises, I find that briefing two counsel was warranted. I
therefore allow the Plaintiff the costs of two counsel.
ORDER
I
therefore make the following order:
1.
The appeal succeeds.
2.
The defendant's cross appeal is dismissed.
3.
Paragraph 1 of the order granted by the court a
quo
on 17 June
2011 is confirmed.
4. Paragraphs 2, 3, and 4
of order granted by the court a
quo
on 17 June 2011are
set aside and replaced with the following:
4.1 The plaintiff's
detention from 30 August 2004 to 18 October 2005 is declared
unlawful;
5.
Paragraphs 1 and 2 of order granted by the court a
quo
on
30
th
September 2011 are
set
aside and replaced with the following:
5.1 Judgement in the
amount of R812,705.23, is awarded in favour of the plaintiff;
5.2 The defendant
shall pay the plaintiff's costs of suit in both the court a
quo
and in this court including the costs of two counsel.
OLIVIER AJ
I agree
MSIMEKI J
It is so ordered
OLIVIER
AJ---
LEGAL
REPRESENTATIVES:
Counsel
for the Appellant/ Plaintiff: Mr Geach SC assisted by Mr Seeima
Instructed
by: A. P. Phefadu Inc.
Counsel
for the Respondent/ Defendant: Mr Mokotedi
Instructed
by: The State Attorney
[1]
The court a quo handed down judgment in respect of the Defendant's
liability on 21 June 2011.
[2]
This is what the Plaintiff would have earned for 6 days' wages
working at a building construction site. He was earning R120 per
day.
[3]
The court a quo handed down judgment in respect of quantum on 30
September 2011.
[4]
1986 (3) SA 568
(A) at 589 E-F, referred to with approval in
Minister of Safety and Security v Ndlovu
2013
(1)
SACR 339
(SCA) at 10.
[5]
[2008] ZACC 3
;
2008 (6) BCLR 601
(CC) at 25, also referred to with approval in
Minister of Safety and Security v Ndlovu
(citation
at footnote 4) at 10.
[6]
Section 40( 1) (b) of the CPA.
[7]
[1986] ZASCA 24
;
[1986] 2 All SA 241
(A) at 8.
[8]
2015 (1) SACR 409
(SCA) at 18.
[9]
2005 (5) SA 62
(SCA) at 36.
[10]
The SCA borrowed this definition from Devlin Shabaan Bin Hussein and
others v Chong Fook Kan and another
[1969] 3 All ER 1627
(PC) at
1630, referred to with approval in Woji v Minister of Police (see
citation at foot note 8) at 17.
[11]
See citation at footnote 8.
[12]
2015 (1) SACR 597 (SCA).
[13]
2011 (5) SA 367
(SCA) at 42-44.
[14]
1991 (1) SA 41
(A) at 51 A-C. See also the Zealand judgment as well
as Minister of Safety and Security and another v Ndlovu (citation at
footnote
4) at 16 were referred to with approval by Petse JA,
writing for the court).
[15]
Minister of Safety and Security and another v Ndlovu (see citation
at footnote 4 supra) at 16. This reasoning accords with that
applied
in Zealand where the court defined the content of the right of a
suspect or an accused person not to be deprived of freedom
arbitrarily or without just cause. See paragraph 21 of this
judgment.
[16]
Minister of Safety and Security v Tyokwana (citation at footnote 12
supra) at 39.
[17]
[2001] ZACC 22
;
2001 (4) SA 938
(CC) para 44 referred to with approval in Woji v
Minister of Police (footnote 8 at 20.)
[18]
[1997] ZACC 2
;
1997 (3) SA 527
(CC). In this case O'Regan J defined the content of
this right as follows:
"They
raise two different aspects of freedom: the first is concerned
particularly with the reasons for which the state may
deprive
someone of freedom; and the second is concerned with the manner
whereby a person is deprived of freedom ...
Our
Constitution recognizes that both aspects are important in a
democracy: the state may not deprive its citizens of liberty
for
reasons that are not acceptable, nor, when it deprives citizens of
freedom for acceptable reasons, to do so in a manner which
is
procedurally unfair."
[19]
Footnote 5 at 53.
[20]
2006 (6) SA 320 (SCA).
[21]
Seymour at para 20.
[22]
Seymour at para 11.
[23]
Seymour at para 17.
[24]
Stellenbosh Farmers Winery Group Ltd and Another v Martel Et CIE and
Others
2003 (1) SA 11
(SCA) at para 5.
[25]
Section 50 (1)(b) reads:'
A
person who is in detention as contemplated in paragraph (a) shall,
as soon as reasonably possible, be informed of his or her
right to
institute bail proceedings', and
Section
50 (6)(c) reads:
The
bail application of a person who is charged with an offence referred
to in Schedule 6 must be considered by a magistrate's
court:
Provided that the Director of Public Prosecutions concerned, or a
prosecutor authorised thereto in writing by him or her
may, if he or
she deems it expedient or necessary for the administration of
justice in a particular case, direct in writing that
the application
must be considered by a regional court.
[26]
The court exercises a judicial discretion. See Merber v Merber
1948
(1) SA 446
(A) at 452-453.
[27]
Minister for Safety and Security v Scott
2014 (6) SA 1
(SCA) at para
42 and Road Accident Fund v Marunga
2003 (5) SA 164
(SCA) at para
23.
[28]
R Koch, The Quantum Yearbook 2015 at pg. 120.
[29]
Section 9
of the
Basic Conditions of Employment Act 75 of 1997
.
[30]
Calculated from www.inflationcalc.co.za based on an annual inflation
increase of 6.8% from 18 October 2005 to 31 March 2016.
[31]
At 24, 25 and 35.
[32]
Takawira v Minister of Police
2013 JOL 30554
at 42 and 43.
[33]
Sithebe v Minister of Police (31236/2012) [2014] ZAGPJHC 201 (4
August 2014).
[34]
Unreported judgment, Gauteng Local Division case number 2014/ A3084,
delivered on 17 February 2015.
[35]
[2014] ZAGPPHC 937
[36]
[2014] ZAGPJHC 189
[37]
2014 (2) SACR 163 (GP)
[38]
[2013] ZAGPJHC 234
[39]
[2013] ZAGPJHC 130.
[40]
[2013] ZAGPJHC 51.
[41]
[2012] ZAGPJHC 261.
[42]
[2014] ZAGPJHC 201.