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[2016] ZAGPPHC 484
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Zwane v Minister of Safety and Security and Another (14209/14) [2016] ZAGPPHC 484 (27 May 2016)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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Policy
IN THE
HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO: 14209/14
DATE:
27/5/2016
(1)
REPORTABLE: NO
(2) OF
INTEREST TO OTHER JUDGES: NO
(3)
REVISED
In the matter between:
GUGULETHU TIMOTHY
ZWANE
PLAINTIFF
and
THE MINISTER OF
SAFETY AND SECURITY
1st
DEFENDANT
THE NATIONAL
DIRECTOR OF PUBLIC PROSECUTION
2nd
DEFENDANT
JUDGMENT
CANCA
AJ;
INTRODUCTION
[1]
The plaintiff, Mr Gugulethu Timothy Zwane, an adult male, who at the
time of his arrest and detention was approximately 33 years
old, and
residing at No. […], Morgenzon, is suing the defendants, the
Minister of Safety and Security and the National Director
of Public
Prosecution, for an alleged unlawful arrest and detention. He is
claiming damages in the sum of R600 000.00 for the unlawful
arrest,
R600 000.00 for the unlawful detention and R100 000.00 for
contumelia, together with costs of suit.
[2]
The defendants deny liability. They contend that the plaintiff was
lawfully arrested and detained on a reasonable suspicion
of having
committed murder and rape.
[3]
The first defendant, the Minister of Safety and Security ("the
Minister") is sued in his official capacity as the
Minister
responsible for the South African Police Services ("the
Police"). The plaintiff holds the Minister vicariously
liable
for the alleged wrongful and unlawful actions committed by members of
the Police stationed at the Morgenzon Police Station.
[4]
The second defendant, the National Director of Public Prosecution, is
also sued in his official capacity and is held liable
by the
plaintiff for the actions of those of his officials that were
involved in the plaintiff's alleged unlawful detention.
BACKGROUND
FACTS
[5]
This action has its origin in the small farming town of Morgenzon, in
the district of Ermelo, Mpumalanga.
[6]
The half-naked body of Ms P.N ("the deceased") was
discovered in an open field between the old and the new cemeteries
in
the vicinity of Extension 2, Sivukile Township, Morgenzon by members
of the public on the morning of 16 December 2012. The deceased
appeared to have been stabbed on her chest and neck, presumably with
the broken beer bottle which was found at the crime scene.
[7]
Acting on information that the deceased and the plaintiff were
drinking alcohol the previous evening at a local tavern,
Mkhulu'sTavern,
in Sivukile Township, and that they were seen leaving
the tavern together, the Branch Commander of the town's police
station, Warrant
Officer Kubheka ("Kubheka"), arrested the
plaintiff later that day. The arrest was, according to Kubheka's
testimony,
based on information that the plaintiff was the last
person seen with the deceased, the plaintiff's apparent nervousness
whilst
being interviewed by him and a colleague, scratches on his
hand and the fact that the plaintiff could not explain the presence
of bloodstains on a jacket found in his room.
[8]
The plaintiff was detained at the Morgenzon Police Station where he
was charged with murder and rape. He appeared at the Morgenzon
Magistrate Court on 19 December 2012. Thereafter, he was transferred
to the Ermelo Prison as an awaiting trial prisoner. Although
the
plaintiff did not apply for bail at his first appearance at Court, he
asked for legal aid representation. The matter was then
postponed in
order to get the plaintiff legal representation and for further
investigation.
[9]
The plaintiff, who remained detained, made several appearances at
Court until he was eventually released from custody on 9 April
2012
for lack of evidence. He was represented by a Legal Aid appointed
attorney at one of those appearances. It is not clear from
the
evidence or the record why this attorney only appeared once or why he
did not apply for the plaintiff to be released on bail.
The record
also does not reveal whether or not the presiding officer at those
appearances enquired as to the progress of the investigation
or why
the plaintiff should not be released on bail. The plaintiff's release
from custody came about as a result of the perpetrator
of the
offences being arrested on 6 April 2012 and confessing thereto the
following day, 7 April 2012.
THE
PLEADINGS
[10]
The essence of the plaintiff's claim on the charges of unlawful
arrest and unlawful detention is found in paragraphs 5, 6,
7, 8, 9,
10 and 11 of his Amended Particulars of Claim. These paragraphs read
as follows:
5.
"On
or about the 16
TH
December 2012 at
Morgenzon, the Plaintiff
was
arrested without
a
warrant
by Officers VP Kubheka and PJ Serulama, members of the South African
Police Service whose ranks are unknown to the Plaintiff.
6.
Thereafter,
the Plaintiff
was
detained at the Morgenzon Police Station
until the 19
th
December 2012 at the instance
of the aforesaid police officers and various other police officers
whose names and rank are unknown
to the Plaintiff.
7.
Thereafter
the Plaintiff
was
further detained at Ermelo Prison until the
gth April 2013 at the instance of the aforementioned members of the
South African Police
Service and at the instance of the second
defendant.
8.
8.1
1 At the time of his arrest, the plaintiff
was
handcuffed
and forced into
a
police van and placed at the Morgenzon
Police Holding Cells under inhuman, humiliating and degrading
circumstances by the aforesaid
Police Officers.
8.2
Consequent to his arrest, charges of murder and rape were
levelled against the plaintiff at the instance of the aforementioned
members
of the South African Police Services and at the instance of
the 2
nd
defendant.
9.
The
arrest and detention constituted
a
mischief against the
plaintiff given that he
was
later released after the Court
held that there
was
not enough evidence to prosecute [the
plaintiff].
The
Police Officials aforesaid had no reasonable belief that plaintiff
was
involved in the commission of the offence when they
arrested and detained the plaintiff.
10.
The
purpose of arrest in this
case was
never achieved and the
arrest
was
used in this manner for
a
purpose it
was
not meant for. Plaintiff
was
kept in Police custody for
a
period of four (4) months without just
cause
for charges
which were struck off [the] roll on the 9
th
April 2013 against him by the Ermelo Court and therefrom [sic] the
plaintiff
was
released from prison.
11.
The
said members of the South African Police Services were acting in the
course and scope of their employment
as
police officers of the
South African Police Services."
[11]
In their Plea, the defendants raised the defence provided by
Section
40
(1)(b) of the
Criminal Procedure Act 51 of 1977
("the Act")
which permits a peace officer to arrest, without a warrant, a person
whom he reasonably suspects of having
committed an offence referred
to in Schedule 1 of the Act.
Section 40
(1)(b) of the Act provides
that:
"(1)
A peace officer may without 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,"
One
of the offences listed in Schedule 1 is murder.
[12]
The relevant parts of the Plea, for purposes of this judgment, are
the following:
AD
PARAGRAPHS
5,6,7,8,9,
10,11,15 AND 16 THEREOF
4.1.1
The Plaintiff was arrested by
a
Peace Officer at
Morgenzon without
a
warrant of arrest on 16h December 2012.
4.1.2
The Plaintiff was arrested in terms of
Section 40
(1) (b) of
the
Criminal Procedure Act 51 of 1977
.
4.1.3
The Plaintiff was reasonable suspected of committing
a
Schedule 1 Offences [sic] (murder) of P.N in the morning of the
16
th
or late night of 15
th
December 2012.
4.1.4
The arresting officer entertained the suspicion, and the suspicion
was based on reasonable grounds.
4.1.5
The Plaintiff's arrest was lawful.
4.2.1
The Plaintiff was dealt with in terms of
Section 50
of the
Criminal Procedure Act 51 of 1977
.
4.2.2
The
Plaintiff was then charged with murder, appeared in Court and did not
apply to be released on bail. Consequently, he was detained,
pending
trial and/or further investigations.
The
Plaintiff's further detention was lawful.
4.2.5
The charge preferred against the Plaintiff was withdrawn by the
Prosecutor on 9 April 2013, due to insufficient evidence
to
prosecute the plaintiff.
4.2.6
At the time of the Plaintiff's arrest, the arresting officer
was acting with[in] the course and scope of employment as an employee
of the First Defendant.
4.2.7
Any other allegation which is at variance with the contents
herein, is deny [sic] and the Plaintiff is put to the proof thereof "
[13]
Van Heerden JA, in
Duncan v Minister of Law and Order
1986 (2)
SA 805
(A) at 818 G-H held that the following jurisdictional facts
have to be met for a successful Section 40 (1)(b) defence, namely:
(a) the arrestor must be a peace officer;(b) the arrestor must
entertain a suspicion;(c) the suspicion must be that the arrestee
committed an offence referred to in Schedule 1 (to the Act) and (d)
the suspicion must rest on reasonable grounds. This test was
re-affirmed by Harms JA in The
Minister of Safety and Security v
Sekhoto
2011 (5) SA 367
SCA at 373 B-C.
[14]
It is common cause that Kubheka is a peace officer and that he
arrested the plaintiff without a warrant. Two of the threshold
requirements for a Section 40 (1)(b) defence have thus been met by
the defendants. In order to ascertain whether or not the rest
of the
jurisdictional facts have been met, it is convenient to examine the
testimony of the witnesses for the respective parties.
THE
EVIDENCE
[15]
It is trite law that an arrest without a warrant is
prima facie
unlawful and that in such an event the onus is on the arrestor to
justify the arrest. Thereafter, the arrestee has to prove the
unlawfulness of the arrest and prove the quantum of his or her
damages. See
Minister of Safety and Security v Linda
2014 (2)
SACR 464
at 466 [5f]. Consequently, the defendants' witnesses were
the first to give evidence.
THE
DEFENDANTS' EVIDENCE
[16]
Kubheka was the defendants' first witness. He testified that he was
called to the crime scene by one of his junior officers,
Constable
Nhlapo, on the morning of 16 December 2012 where he found the
deceased's body. There he was informed by the deceased's
sister that
the deceased's cell phone was missing. Following further
investigation, he ascertained from Ms F.S ("S"),
apparently
one of the deceased's friends, that she, the deceased and the
plaintiff were together the previous evening drinking
alcohol at
Mkhulu's Tavern. During the course of that evening the plaintiff
proposed love to the deceased. The proposal was rejected.
At some
stage S left the deceased and the plaintiff at the tavern and on her
return, approximately 2 hours later, ascertained from
the other
patrons that the deceased and the plaintiff had left the tavern
together. Kubheka also obtained directions to the plaintiff's
residence from S.
[17]
Kubheka further testified that he and a colleague drove to the
plaintiff's residence where he proceeded to interview him. According
to Kubheka, the plaintiff confirmed that he, the deceased and S were
drinking alcohol at Mkhulu's Tavern the previous evening and
that his
proposal was turned down by the deceased. He also informed Kubheka
that he accompanied the deceased to the edge of the
field where her
body was found that morning but had, on their parting, proceeded
straight to his house. Kubheka stated that he
suspected that the
plaintiff was the perpetrator of the offence as he appeared nervous
during the interview and had scratches on
his hand. He then asked to
search the place. It was during this search that he came across a
green jacket with blood stains on
its right sleeve. When asked about
the origins of the bloodstains, the plaintiff did not, according to
Kubheka, give an explanation
but kept apologising and said that he
did not know that she was going to die. It was then that he arrested
the plaintiff as a suspect.
According to him, his suspicion was based
on the fact that the plaintiff was the last person seen in the
company of the deceased,
the scratches on the plaintiff's hand and
the fact that he could not explain the blood on the green jacket.
[18]
He then took the plaintiff to the Morgenzon Police Station where he
was detained. His DNA was taken 18 December 2012 where
after he was
charged. The plaintiff was brought to Court on 19 December 2012 but,
according to Kubheka, he was by then no longer
involved in the
investigation as he had passed on the case to his colleagues,
initially, Constable Serulama ("Serulama")
and then to
Constable Nhlapo.
[19]
Under cross examination, Khubeka conceded that the green jacket
played a vital role in him arresting the plaintiff. He also
stated
that the jacket was booked with the other items in order for the
bloodstains on it to be analysed forensically. However,
he could not
explain why there was no mention of the green jacket in his
Investigation Diary or in his letter to the Commander
of the Forensic
Science Laboratory which accompanied the items which required
analysis. His letter only listed a sexual assault
evidence kit, an
evidence bag containing the deceased's nails, a blood kit and two
evidence bags containing the deceased's clothes.
The green jacket is
only mentioned in his written statement which was penned on 18
December 2012, two days after the arrest. He
also could not explain
why his written statement did not include reference to the
plaintiff's apology. There is also no reference
in his statement that
the plaintiff allegedly said that he did not know that the deceased
would die.
[20]
The Prosecutor Information Form (the "Prosecution Form"),
completed by Serulama, who listed himself as the investigating
officer in the Prosecution Form, however, contains the following
information, which I consider material for purposes of arriving
at a
conclusion in this matter. According to the Prosecution Form, the
plaintiff,
inter alia,
has, (1) fixed employment, (2)
children, (3) a previous conviction of 6 months - what he was
convicted for is not stated - (4) did
not evade or resist arrest, (5)
co-operated with the police, (6) was a danger to person/community,
(7) would interfere with witnesses,
(8) should not be released on
warning or on bail and, (9) should not [sic] be held in prison.
[21]
The defendants' second witness, Ms Marokane, was the State Prosecutor
at the plaintiff's Court appearance on 19 December 2012.
She was not
involved in the plaintiff's subsequent Court appearances. Her
testimony had no effect on whether or not the arrest
was unlawful.
Regarding the claim for unlawful detention though, she stated during
cross examination that, given the fact that
the plaintiff was charged
with a Schedule 1 offence, she would have opposed bail had same been
applied for.
THE
PLAINTIFF'S EVIDENCE
[22]
The plaintiff's first witness was his older brother, Mavukuthu Zwane.
The essence of his testimony was the he was arrested
3 days after the
plaintiff's arrest and was detained for 6 days. The reason for the
arrest was apparently because Khubeka did not
believe that the
plaintiff had committed the crime by himself and that the police
wanted to take a sample of his blood. He successfully
sued the First
Defendant for unlawful arrest and detention. He was paid damages in
the sum of R160 000.00 for the aforesaid arrest
and detention.
[23]
During his testimony the plaintiff confirmed S’s version of
what had happened the previous evening at Mkhulu's Tavern
and
acknowledged that he was with the deceased and S. He further
testified that he and the deceased parted ways at the edge of
the
field where she was later discovered. Thereafter he went home. On the
morning of his arrest, he went to a tavern in the township
where he
drank alcohol and thereafter went back to Mkhulu's Tavern where he
continued drinking alcohol. He denied that the arrest
took place at
his house. His evidence was that Kubheka and his colleagues found him
outside Mkhulu's Tavern. Kubheka informed him
that he was being
arrested for the murder of the deceased and then drove him to his
house where they proceeded to search it. The
officers came across the
green jacket, which is the top of a two-piece overall he wore at
work. His further testimony was that
he informed Kubheka that he had
injured himself at the dairy where he worked. The injury occurred
approximately a month before
his arrest, the bloodstains and the
scratches on his hand were old, so his evidence continued. Kubheka
did not accept this explanation.
However, according to the plaintiff,
Kubheka's colleagues believed him and allegedly told Kubheka that
they should leave him alone.
I assume that the plaintiff took this to
mean that Kubheka's colleagues exonerated him. Kubheka ignored his
colleagues and drove
the plaintiff to the Morgenzon Police Station
where he was detained. After his Court appearance on the 19
th
December 2012, he was later transferred to the Ermelo Prison until
his release.
[24]
Under cross examination, the plaintiff could not be shaken from his
version of what had transpired on the afternoon of his
arrest,
namely, that he was arrested outside Mkhulu's Tavern, was driven to
where he stays by the Police and that he explained
the scratches on
his hand and how the jacket got stained with blood. He could,
however, not explain why he wore a jacket with bloodstains
for a
month without having washed same. He also conceded that his attorney
did not apply for bail but stated that he had asked
him to do so.
OVERVIEW
OF THE EVIDENCE
[25]
In my view, the following are aspects of the plaintiff and Kubheka's
testimonies that require careful consideration:
25.1
was the plaintiff arrested outside Mhkulu's Tavern or at his house?
25.2
is the plaintiff's evidence of how the green jacket got stained with
blood credible?
25.3
was the information at Kubheka's disposal sufficient to give rise to
a reasonable suspicion to effect the arrest?
[26]
The issue of where the plaintiff was arrested is important in the
following respects: (a) if the arrest was outside Mkhulu's
Tavern
then, so the plaintiff contends, Kubheka's suspicion could not have
been reasonable as the only information at his disposal,
at that
stage, was S's statement referred to in paragraph 16 above. That
information, namely, that the deceased and the plaintiff
were
drinking alcohol the previous evening, that the deceased had turned
down the plaintiff's proposal and that the plaintiff and
the deceased
had left the tavern together, was clearly not sufficient to raise a
reasonable suspicion to arrest the plaintiff.
At most, that
information was sufficient for the Police to interview the plaintiff,
and (b) if, as Kubheka testified, that the
arrest took place at the
plaintiff's house after he observed the plaintiff's nervous
behaviour, saw the scratches on his hand and
the blood on the green
jacket, then the question to be asked is whether or not his
suspicion, that the plaintiff was the perpetrator
of the offence, was
reasonable.
[27]
There were various aspects of Kubheka's testimony which, in my view,
rendered him a poor witness. His evidence that the plaintiff
was
scared and nervous during the interview at his house is not enough to
conclude that the suspicion was reasonable. To my mind,
the
plaintiff's nervousness has a rational explanation. It is conceivable
that the plaintiff, (a man of small stature, who kept
breaking down
during his testimony), when informed by the Police that he was either
being arrested for or was a suspect in the
murder of someone he was
drinking with the previous evening and whom he was seen leaving the
tavern that evening, would display
symptoms of nervousness. When I
suggested this to the defendants' counsel during argument, he agreed
that most people in the plaintiff's
position would be nervous. The
plaintiff's nervousness during his interview by Kubheka, was
consequently, by itself, in my view,
not sufficient evidence to
justify a reasonable suspicious for his arrest.
[28]
The evidence that the plaintiff kept apologizing and had said that he
did not know that the deceased would die, when Kubheka
discovered the
bloodstained jacket, does not ring true, is unconvincing and
untenable. The fact that, what amounted to an admission
of guilt by
the plaintiff, was not included in Kubheka's statement, allegedly
given under oath on 18 December 2012, fortifies me
in the view that
that aspect of Kubheka's testimony is improbable and is a fabricated
version. This evidence is consequently rejected.
[29]
Moreover, if the jacket played such a vital role in Kubheka's
suspicion, him not submitting the jacket for forensic examination
or
not having a plausible explanation for not doing so, leads me to the
conclude that the bloodstains were indeed probably old
and could not
have been from the previous evening. The deceased's wounds, judging
from a perusal of the photographs of her body,
are such that there
would have been significantly more blood on the jacket than what is
suggested by Kubheka's evidence.
[30]
It is also worth noting that under cross examination, Kubheka could
not adequately explain why, when asked by an official in
the employ
of the second defendant, the jacket had not been included in the
items sent for forensic analysis. There is also nothing
in the record
to show that Kubheka subsequently responded to the said letter or
that the jacket was eventually sent for analysis
by the Forensic
Laboratory. The plaintiff's evidence that Kubheka's colleagues
exonerated him when he explained how the jacket
got stained with the
blood, must therefore be accepted. Kubheka's testimony, that the
blood on the jacket played a major contributing
factor in him
suspecting the plaintiff of the offence, is rejected. Kubheka was
then left with only Sithole's evidence.
[31]
It is convenient to re-state the test for a reasonable suspicion when
affecting an arrest without a warrant in the circumstances
such as
those faced by Kubheka on that fateful day. In
Duncan supra,
it
was decided, at paragraph 814 D-E, that the test is not whether a
policeman believes that he has reason to suspect, but whether,
on an
objective approach, he in fact has reasonable grounds for his
suspicion. Jones J, in
Mabona and Another v Minister of Law and
Order and Others
1988 (2) SA 654
(SE) at 658 E-G, stated that, in
deciding what constituted evidence that would lead an arresting
officer to form a reasonable suspicion
which was objectively
sustainable, one would have to ask whether a reasonable man in that
policeman's position and possessed of
the same information would have
considered that there were good and sufficient grounds for suspecting
that the plaintiff was guilty
of the offence. The learned Judge goes
on to state that
"the reasonable man will therefore analyse
and assess the quality of the information at his disposal critically
and he will
not accept it lightly or without checking it where it can
be checked. It is only after an examination of this kind that he will
allow himself to entertain
a
suspicion which will justify an
arrest."
[32]
Kubheka's testimony falls short of the test set out in
Mabona
above. A reasonable investigating officer in Kubheka's position,
to my mind, even if he was not convinced that the blood was old
and
from a previous injury as stated by the plaintiff, would have sent
the jacket for analysis of the blood before arresting the
plaintiff
given that he knew where the plaintiff lived and had secure
employment in that small town. A reasonable policeman in
a small
town, where most people, generally know each other, would have warned
the suspect who, as is stated in the Prosecution
Form referred to in
paragraph 20 above, had co-operated with the Police, had children and
fixed employment in that town, not to
leave town until he had been
ruled out as a suspect. I am not convinced that Kubheka, when
affecting the plaintiff's arrest, excised
the requisite critical
examination and analysis of the limited information he had obtained
from S and the responses he received
from his interview of the
plaintiff.
[33]
Is the plaintiff's testimony as to how the jacket got stained with
blood credible? The difficulty in answering this question
is the fact
that neither the plaintiff's counsel nor counsel for the defendants
properly explored the aspect of the bloodstains
during the evidence
in chief or during cross examination. It is not clear how big or how
widely spread the bloodstains were. Were
there just a few spots or
was there a large stain? Whilst the defendants' counsel attempted to
disprove the plaintiff's testimony
in this respect by contending that
it was improbable to wear a jacket with bloodstains for approximately
a month, regard must be
had to the fact that the jacket was part of
an overall the plaintiff wore at work in a dairy. It is conceivable
that as a labourer
his work was manual and did not necessarily
require clean clothes. It is also not clear from the evidence how
prominent those bloodstains
were given that they were old and that
the jacket was dark in colour (green). The plaintiff may very well
have considered the bloodstains
insignificant and not requiring
removal. Although I have, elsewhere in this judgment, referred to the
plaintiff as living in a
house, in fact, he lived in a township "back
room" and probably did not have the luxury of a washing machine
and the
detergents to remove stubborn stains which blood generally
leaves on clothes. The plaintiff's testimony largely withstood
cross-examination.
The instances where he faulted during cross -
examination where not material to the averments made in the
particulars of claim.
[34]
In the light of the above, I am of the view that the plaintiff's
evidence of how the jacket got stained with blood is credible.
Kubheka could easily have gone to the plaintiff's place of employment
to verify the plaintiff's story, but failed to do so. He
also failed
to have the blood on the jacket analysed.
MERITS
[35]
In argument, the defendants' counsel, relying on
Linda supra
(cited in paragraph 15 above), sought to persuade me that,
because the plaintiff did not specifically allege, in his particulars
of claim, that the arrest and detention was based on an unreasonable
suspicion, his claim should fail on that reason alone. I do
not
agree.
[36]
The particulars of claim are poorly drafted. However, a close reading
of paragraph 9 thereof, the relevant parts of which state
that
"
The arrest and detention constituted a mischief against the Plaintiff
. .."
and
" The Police Officials aforesaid had no
reasonable belief that plaintiff was involved in the commission of
the offence when
they arrested and detained the Plaintiff."
as
well as paragraph 10, in which it is alleged that
" ...the
arrest was used in this manner for a purpose that it was not meant
for."
is in my view, albeit inelegantly framed, sufficient
to put the reasonableness of Kubheka's suspicion in issue.
[37]
Although, as was held in
Linda supra,
at [21a-b], that "a
police officer is not expected to satisfy himself to the same
extent as a court'
and that "a
suspicion can be
reasonable despite there being insufficient evidence for
a
prima
facie case,"
when looked at as a whole, the evidence at
Kubheka's disposal was, in my view, not sufficient to raise a
suspicion that was reasonable
to effect the arrest. The arrest and
detention was arbitrary and consequently unlawfully. Notwithstanding
the aforementioned, there
is nothing in the testimony of the
witnesses or in the record to suggest that Kubheka's actions were
motivated by malice. At most,
he was overzealous and probably too
eager to secure an arrest in what was a rather gruesome crime.
[38]
There is no evidence before me or in the record on which I can make a
determination on the culpability of the second defendant.
As stated
in paragraph 20 above, the only witness for the second defendant
testified that, given the serious nature of the offences
levelled
against the plaintiff, she would not, at that early stage of the
investigation, have agreed to his release on bail. The
plaintiff, who
bore the onus of showing exceptional circumstances justifying his
release on bail, did not present any credible
evidence why an
application for his release on bail was not made nor is there any
evidence of wrongdoing on the part of the second
defendant's
officials. The plaintiff's claim against the second defendant for
unlawful detention therefore stands to be rejected.
QUANTUM
[39]
It is common cause that the plaintiff, who was arrested and detained
on 16 December 2012, was only released on 9 April 2013,
following the
confession of the perpetrator of the offences, on 7 April 2013.
Although there is no fixed formula for the determination
of the
quantum in cases of this nature, the dictum of Bosielo AJA, as he was
then, in
Tyulu v
The
Minister of Safety and Security
2009
(4) ALL SA 38
(SCA) at paragraphs 26 & 27, is instructive. It is
important, in the light of what the learned Judge says in that case,
that
the award I make in this matter highlights the right to personal
liberty and that the arbitrary deprivation of such liberty is viewed
seriously in our law.
[40]
In argument, the defendants' counsel contended that, in the event
that I found in the plaintiff's favour, I should only hold
the first
defendant liable for the plaintiff's arrest and detention until the
19th December 2012. In support of this contention,
counsel referred
me
Linda supra
at 477 g - i. Here Murphy J held that
"In
Sekhoto [2011 (5) 367 at 383 C-0] the SCA drew
a
clear
distinction between the powers of
a
peace officer to arrest
and the power to detain. The power to arrest is exercised for the
purpose of bringing the suspect to justice.
Once an arrest has been
effected the peace officer must bring the arrestee before
a
court
as soon as reasonably possible and at least within 48 hours
(depending on court hours)."
[41]
It is trite law that, once an arrestee has been brought to Court, the
authority to detain, which is inherent in the power of
arrest, is
exhausted. The authority to detain a suspect further then falls
within the discretion of the Court. See
Linda
at 477 i-j.
[42]
I am of the view that the plaintiff was poorly treated by the justice
system in this matter. The second defendant and the Judiciary
bear a
responsibility not to allow matters to be postponed for months and
months without good cause, particularly when the accused
is in
custody. However, I have already found that there was no evidence to
show any culpability on the second defendant.
[43]
Having considered the testimony of the various witnesses and having
carefully perused the record and the relevant authorities,
I am
persuaded by the defendants' argument that the plaintiff's unlawful
arrest and detention was from the afternoon of the 15th
December 2012
until his appearance at Court on 19 December 2012. The plaintiff was
therefore denied his liberty from 16 to 19 December
2012. The
plaintiff's counsel argued strongly that I should, when considering
the issue of quantum, take into account the fact
that the plaintiff,
who is still traumatised by his arrest and detention, had lost his
employment as a result of that arrest and
detention. However, neither
the plaintiff nor his counsel were able to show that the Police could
have foreseen him losing his
employment.
[44]
I have given careful consideration to the facts of this case, the
circumstances of the plaintiff's arrest including his social
standing, the real possibility that his reputation in Morgenzon, and
in particular Sivukile Township, has been sullied by his arrest
and
detention. Having observed the plaintiff during his testimony, I have
no doubt that his arrest and prolonged detention as an
awaiting trial
prisoner was very traumatic and that he is still suffering the
effects of that experience. I urge the plaintiff's
legal
representatives to impress upon him the need to seek help from an
appropriate healthcare professional.
[45]
I have also taken note of the dictum by Nugent JA, in
Minister of
Safety and Security v Seymour
2006 (6) SA 320
(SCA) at 325 B,
that
"the awards of general damages with reference to awards
made in previous cases was fraught with difficulty [and that the]
facts
of
a
particular case needed to be looked at as
a
whole and few cases are comparable".
In
Seymour,
the
respondent was also detained at a police station. However, he had
free access to his family and doctor and after 24 hours was
transferred to a clinic where he spent the rest of his 5 days in
detention in a hospital bed. The Court awarded him damages in
the
amount of R90 000.00 in 2006. There is no evidence as to the
conditions under which the plaintiff was detained at the Morgenzon
Police Station. The defendants' counsel submitted that, in the event
I found against the first defendant, an amount of R120 000.00
would
be appropriate damages for the plaintiff. I do not agree. Although I
have found that the plaintiff's detention following
his appearance at
Court on 19 December 2012 was lawful, justice demands, given the
facts of this particular case, that the amount
suggested by the
defendants' counsel be increased.
[46]
In the light of the above, I consider an award in the amount of R
180,000.00 to be fair and appropriate compensation in the
circumstances of this case.
COSTS
[47]
Both the plaintiff and the defendants argued that they would be
entitled to costs in the event that they were successful. I
have
already found that the plaintiff has been successful in his claim
against the first defendant. Costs, therefore, should follow
the
cause.
[48]
The plaintiff has been unsuccessful against the second defendant.
Ordinarily, the plaintiff would be liable for that defendant's
costs.
However, given that the two defendants were represented by the same
counsel, Messrs Phaswane and Kekane, and given my comments
in
paragraph 42 above, it would be inappropriate in these circumstances
to order the plaintiff to pay the second defendant's costs.
ORDER
[47]
I order as follows:
1.
Judgment is granted in favour of the plaintiff against the first
defendant for payment of damages in respect of his unlawful
arrest in
the sum of R180 000.00, together with interest thereon at the
statutory rate as from the date of judgment, and costs.
2.The
plaintiff's claim against the second defendant is dismissed. No order
as to costs.
--------------------
MP CANCA
Acting
Judge of the High Court
APPEARANCES:
For the
Plaintiff:
Adv. L Mgwetyana
Instructed by: Mjali &
Zimema Attorneys, Volksrust.
For the
Defendants:
Advocates MS Phaswane & DM Kekan
Instructed by: N A
Qongqo
State Attorney,
Pretoria.
Heard on: 15 & 16
March 2016
Judgment on: 27 May
2016