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[2016] ZAGPPHC 428
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Duma v Minister of Police and Another (41429/2011) [2016] ZAGPPHC 428 (13 June 2016)
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REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
CASE
NO:
41429/2011 JHB
DATE:
13/6/2016
Reportable:
No
Of
interest to other judges: No
Revised
In
the matter between:
THANDEKA
DUMA
Plaintiff
and
MINISTER
OF
POLICE
1
st
Defendant
MINISTER
OF HOME
AFFAIRS
2
nd
Defendant
JUDGMENT
AC
BASSON, J
[1]
The
plaintiff, Ms Thandeka Duma, is claiming damages from the first
defendant (the Minister of Police) and second defendant (the
Minister
of Home affairs) in the amount of R 250,000.00 for her unlawful
arrest and a further R 250,000.00 for her unlawful detention.
[2]
The
plaintiff was arrested on 27 October 2010. After her arrest, the
plaintiff was further detained until her release on 4 November
2010.
The charges against her were withdrawn in February 2011. The
plaintiff remained in detention for approximately 9 days.
Personal
information regarding the plaintiff MsThandeka Duma
[3]
It is for
purposes of this judgement important to give a brief background of
the plaintiff. I will, for reasons that will become
clear herein
below, refer to the plaintiff as “Duma GP” and “the
plaintiff” interchangeably.
[4]
Duma GP was
born on […] December 1973. According to her Declaration of
Birth she was born in the Magisterial District of
Johannesburg. Her
identity number is indicated as:
[…]208
.
The first four numbers of her identity number are consistent with her
date of birth. Her identity number on her identity document
(“ID”)
is also consistent with the identity number allocated to her by the
Department of Home Affairs at birth.
[5]
Duma GP was
also issued with a passport by the Department of Home Affairs which
passport expired on 23 August 2014. Her identity
number is indicated
as
[…]080
and her date of birth as […] 12-1973 which is consistent with
her Declaration of Birth. She also used her first ID to apply
for her
two children’s’ birth certificates in 1992 and 2000
respectively.
[6]
In 2002 the
plaintiff went to the Department of Social Development’s
offices in Diepkloof, Soweto to apply for child grants
for her two
children. She was then informed that she was already receiving child
grants in Pietermaritzburg.
[7]
In 2004 the
plaintiff lost her ID after a break-in. She applied for a new ID in
2004 but only received it in 2008. The information
on her ID is again
consistent with her Declaration of Birth.
[8]
The
plaintiff had an existing revolving credit account at game stores at
President Street Johannesburg.
Personal
information regarding a second MsThandeka Duma
[9]
It is for
purposes of this judgement also important to give a brief background
of a second individual with the exact same name namely
Ms Thandeka
Duma. This Ms Duma resides in Pietermaritzburg, Kwa-Zulu Natal. (I
will for purposes of this judgment and to avoid
confusion with the
plaintiff (“Duma GP”) refer to the second Ms Duma as
“Duma KZN”.)
[10]
According
to the Declaration of Birth of Duma KZN, she was born on […]
June 1973. Her ID is recorded as:
[…]086
.
Duma KZN was also issued with an ID somewhere in the 1990’. The
date is illegible on her ID.
[11]
On her ID
it is recorded that she was born […] December 1973 and her
identity number is recorded as […]080.
[12]
However,
when the identity document of Duma KZN is read together with her
Declaration of Birth, it is patently clear that her birth
date and
her ID number recorded in her ID book are incorrect in that it does
not accord with her date of birth nor with the ID
number allocated to
her at the time of her birth.
[13]
What
complicates matters is the fact that the identify number and birth
date recorded in the ID book of Duma KZN are identical to
the ID
number and birth date which clearly belong to Duma GP.
[14]
It was,
however, common cause that the particulars (including the ID number)
that appears on Duma GP’s identity document are
correct and
that it corresponds with the ID number allocated to her at birth
whereas the ID number on the ID document of Duma KZN
appears to be
incorrect.
Facts
of this matter
[15]
It was
therefore common cause that Duma GP is the lawful owner of the ID
number although it appears that Duma KZN uses the same
information on
the ID issued to her.
[16]
In this
regard it was therefore admitted by the second defendant that the ID
document that was issued to Duma GP is the correct
ID and that she is
the lawful owner of the document. The second defendant also confirmed
that the ID issued to Duma KZN reflected
an incorrect ID number and
an incorrect birth date and that the ID document of Duma KZN
incorrectly reflect the ID number and birth
date which belong to Duma
GP.
[17]
Lengthy
evidence was led in respect of the possible reasons for this mistake.
I do not regard it necessary to repeat the evidence
in detail.
Suffice to note that the second respondent acknowledged that Duma KZN
was mistakenly issued with an ID document reflecting
the details
belonging to Duma GP. Despite lengthy evidence and cross-examination,
officials of the second respondent could merely
speculate as to
the reasons for the mistake.
[18]
I have
already referred to the fact that the plaintiff had an existing
revolving credit with Game store. It was her evidence that
she
received an SMS informing her that she should come to the store
because she had a credit in the amount of R 10,000.00 on her
account.
When she visited the store she was arrested for fraud.
[19]
Mr
Steenkamp - the general manager at the time of the specific Game
Store where Duma GP was arrested - testified that he had received
an
instruction from RCS to arrest the plaintiff for fraud. Mr Steenkamp
testified that he had been handed a letter from RCS to
which a copy
of the ID of Duma KZN was attached. On the document it is recorded in
handwriting that this was the real owner of
the identity document. It
was the evidence of the arresting officer (Constable Langa) that it
was he who had recorded this on the
ID. Also attached is an affidavit
deposed to by Duma KZN stating that she did not open an account at
Game Stores.
[20]
Steenkamp
testified that he formed a “suspicion” that Duma GP was a
fraudster purely on the basis of the e-mail from
RCS that was given
to him. He conceded that he made no investigations and that he did
not even peruse the plaintiff’s original
application with RCS
to determine which identity document was supplied to RCS at the time
of her application.
[21]
Steenkamp
also had regard to an affidavit deposed to by Duma KZN who recorded
as her identity number as […]080 - which is
the exact same
identity number reflected on the plaintiff’s ID.
[22]
Duma KZN
deposed to this affidavit on 2 July 2010 wherein she bizarrely
confirmed that she had two identity numbers but that she
preferred to
use the one which was in fact allocated to Duma GP and that she did
not prefer the one that was in fact allocated
to her and which
accords with her actual birth date.
The
arrest of Duma PG
[23]
Sergeant
Langa (“Langa”) was called to Game Store. When he arrived
he was handed copies of the two identity documents.
As already
indicated, both identity documents reflected identical ID numbers as
well as identical dates of birth. The only difference
between the two
documents was the two photographs: The one photograph belonged to
Duma GP and the other photograph belonged to
Duma KZN.
[24]
It was the
evidence of Langa that he formed the “reasonable suspicion”
that the plaintiff was a fraudster and that Duma
KZN was the lawful
owner of the ID document. Langa was cross-examined at length in
respect of what he took into account in
arriving at the decision to
arrest the plaintiff. At the time Langa was given the original
ID of the plaintiff. He asked
Duma GP where she got the ID from. She
replied that she got it from Home Affairs. This did not appear to
have made any impression
on Langa.
[25]
Langa then
offered various explanations as to why he formed the “
suspicion
”
that the plaintiff was a fraudster. In his evidence in chief he
explained that he showed the copy of the ID document of
the Duma KZN
to the plaintiff. When the plaintiff said that it was not her face on
the ID document – he concluded that there
was a case of fraud.
Then he testified that it was not possible for two people who look
different to have the same ID number. He
did, however, concede in his
evidence that he suspected that there was a “
mistake
somewhere
”
only to conclude that “
we
at the SAPS call that fraud
”.
[26]
Langa
admitted that, although he did think of going to Home Affairs (the
second defendant) to verify the identity of the plaintiff,
he did not
do so because it was not part of his job as he is not an
investigating officer. He explained that his job ended once
the
suspect was placed in a cell.
[27]
In
cross-examination Langa confirmed that he did have the plaintiff’s
original ID. He was also specifically asked if he had
noticed
anything sinister on the ID to which he replied “no”. To
a question whether the photo on the plaintiff’s
ID appeared to
have been superimposed he also replied “no”. He further
confirmed that the ID of the plaintiff was an
original ID. He also
confirmed that when he asked Duma GP where she got the ID from she
told him that she got it from Home Affairs.
[28]
On the face
of it, Langa therefore had no reason to suspect that the ID document
of Duma GP was falsified. He in fact admitted that
he was satisfied
that the photo was not superimposed and that the ID document appeared
to be original. The only reason for his
suspicion seems to have been
the fact that the two faces on the two IDs were different. From there
he then merely concluded that
the plaintiff was the fraudster.
[29]
To a
question whether it had crossed his mind that this was merely an
error and that that was the reason why the two faces on the
two ID’s
were different, he merely replied that it had to be investigated.
[30]
Although
Langa testified in his evidence in chief that he had suspected that
there was a mistake, he thereafter testified in cross-examination
that it had never crossed his mind that there was an error. Langa
also confirmed that Duma GP begged him to go to her house to
ask her
mother to confirm her identity. He, however, explained that the
police did not drive around with suspects and that they
merely had to
transport them to the police station.
[31]
It was put
to Langa that he merely “assumed” that she was a
fraudster to which he replied that he did interview her
and that it
did not just arrest and that he was “
friendly
to her
”.
[32]
Importantly
Langa testified that he was of the view that the plaintiff was a
fraudster on account of the RCS letter and according
to what Game
stores told him and in light of the fact that the “real owner”
had deposed to an affidavit stating that
she had not opened an
account at Game stores. Langa then made the startling statement that
he
did not label her a fraudster but that it was actually Game stores
that had labelled her a fraudster and conceded that he just
accepted
that. Langa therefore clearly did not form an independent opinion on
whether an arrest was warranted.
[33]
A further
fact taken into account by Langa was the fact that he merely assumed
that the plaintiff was a fraudster simply because
Duma GP’s ID
was issued
after
the one that was issued to Duma KZN. In other words, Langa accepted
that the Duma GP’s identify document was fraudulent simply
because, on the face of it, the ID of Duma KZN was issued first. As
will be pointed out, this assumption made by Langa is completely
wrong.
[34]
I have
several difficulties evidence of Langa and with the manner in which
he had exercised his discretion:
(i)
Langa
merely assumed that there was fraud involved because there were two
similar ID documents but with different photos
(ii)
He
further assumed that there was fraud involved and assumed that Duma
GP was the fraudster merely because it seemed on the face
of it that
the ID document of Duma KZN was issued first: The plaintiff therefore
had to be the fraudster. This assumption is fundamentally
wrong. In
this regard the undisputed evidence of the witness on behalf of the
second defendant was that the date that appears on
an ID is not
indicative of when an ID was first issued. In any event, it is the
latest ID that is considered to be the valid one.
(iii)
It is
further clear from the evidence of Langa that he had relied on the
fact that Game had labelled the plaintiff a fraudster.
In fact he
conceded in cross-examination that he just accepted that. On this
evidence it is clear that Langa did not form his own
opinion as to
whether reasonable grounds existed which would have warranted an
arrest.
(iv)
Although
Langa stated in cross-examination that it had never crossed his mind
that an error had occurred, he expressly stated in
his evidence in
chief that he had suspected that there was a mistake somewhere. The
fact that Langa (at least if regard is had
to his evidence in chief)
suspected that there could have been a mistake somewhere, could not
have led him to believe that reasonable
grounds existed which could
have lead him to form a suspicion that the plaintiff was a fraudster.
(v)
Langa had
the original ID document of the plaintiff in his possession whereas
he merely had a copy of the ID document of Duma KZN.
He conceded that
the photo of the plaintiff was not superimposed on the ID and that
the ID also looked original to him. The plaintiff
also informed him
that she got her ID from Home Affairs. Langa clearly did not consider
these facts because if he had he would
not have formed a reasonable
suspicion that an offence as listed in Schedule 1 of the CPA was
committed.
(vi)
Langa’s
evidence was that it was not his job to investigate. At the very
least he could have contacted the Department of Home
Affairs (the
second defendant) to verify the information. According to the second
defendant had he done so the problem would have
been resolved
immediately.
(vii)
Duma GP
also testified, and it was not dispute by Langa, that she had told
him to accompany her to her home so that her mother could
verify her
identity. Langa blatently refused to do so because it was not,
according to him, his job to investigate.
[35]
I have
little hesitation to find on the facts that Langa was grossly
derelict in the execution of his duties and that he could not
have
formed a reasonable suspicion on the facts before him that Duma GP
(who was about to be arrested) had committed an offence.
In fact, he
could have easily determined whether she had committed an offence
purely by contacting the Department of Home Affairs
or by visiting
her mother to establish her identity. Sight can never be lost of the
fact that, by its very nature, an arrest constitutes
a severe
restriction of, and interference with, a person’s freedom of
movement and should therefore only be effected in circumstances
allowed by the statutory prescriptions of the Criminal Procedure
Act
[1]
(“CPA”). In
terms of section 40 of the CPA a peace officer is authorised to
arrest a person without a warrant in (
inter
alia
)
the following circumstances:
“
(1)
A peace officer may without warrant, arrest any person –
(a)
who commits or attempts to commit any offence in his presence;
(b)
whom he reasonably suspects of having committed an offence referred
to in Schedule 1, other that the offence of escaping from
lawful
custody;”
[36]
In
this regard the law is clear: In terms of section 40(1)(b) of the
CPA a person can only be arrested if the arresting officer
has
a reasonable suspicion that the person who is about to be arrested
has committed an offence as set out in Schedule 1 of the
CPA. Section
40(1)(b) of the CPA therefore includes a reasonable suspicion test or
standard that depends on a reasonable person’s
judgement on
grounds that need not be certain or true but are at least well
founded according to the objective standards of the
reasonable person
and with due regard to all the circumstances of the particular case.
See in this regard:
Mabona
and another v Minister of Law and Order and others
where
the court set out the legal position as follows:
[2]
“
The
question is whether his suspicion was reasonable. The test of whether
a suspicion is reasonably entertained within the meaning
of s
40(1)(b) is objective (S v Nel and
Another
1980
(4) SA 28 (E)
at
33H).
Would a reasonable man in the second defendant's position and
possessed of the same information have considered that there
were
good and sufficient grounds for suspecting that the plaintiffs were
guilty of conspiracy to commit robbery or possession of
stolen
property knowing it to have been stolen? It seems to me that in
evaluating his information a reasonable man would bear in
mind that
the section authorises drastic police action. It authorises an arrest
on the strength of a suspicion and without the
need to swear out a
warrant, ie something which otherwise would be an invasion of private
rights and personal liberty. 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. This is not to say that the information at his
disposal must be of sufficiently high
quality and cogency to engender
in him a conviction that the suspect is in fact guilty. The section
requires suspicion but not
certainty. However, the suspicion must be
based upon solid grounds. Otherwise, it will be flighty or arbitrary,
and not a reasonable
suspicion.”
[37]
It is clear
from this decision that a reasonable man will at least critically
assess the quality of the information at his disposal.
More
importantly, he will not accept the information lightly or “without
checking it where it can be checked”. It is
clear from the
aforegoing that Langa did none of this. Although it is accepted that
what is required is a “suspicion”
and not “certainty”,
the information before Langa did not pass the threshold of suspicion
especially because it was
not based on solid grounds. Moreover,
Langa could easily have verified the information but was clearly not
interested to
do so. See also in this regard:
Olivier
v Minister of Safety and Security and Another
[3]
where the court with reference to the
Mabona
decision confirmed that the suspicion must at least be realistic and
well founded:
[4]
“
.. s 40(1) of the
Act required that an arresting officer must have a reasonable
suspicion that a suspect had committed a Schedule
1 offence. In
addition, the facts on which the officer relied for his suspicion
must at least be realistic and well founded, having
regard to the
circumstances of the particular case. The second defendant (the
arresting officer) had based his suspicion on what
he had heard from
a third party, and not on what the plaintiff had himself told him. He
had not considered the reasonableness of
the plaintiff's explanation,
nor had he tried to evaluate its authenticity or veracity. He also
could not explain why the plaintiff's
explanation was unacceptable or
unreasonable. Given the facts of the matter, the second defendant had
failed to show that he could
have entertained reasonable grounds for
his suspicion justifying the arrest of the plaintiff. This was a
matter which required
proper investigation and consideration before
the serious step of arresting the plaintiff was taken. On
the facts,
the second defendant had acted over-hastily and
imprudently.”
[5]
[38]
On
the evidence before this court it is therefore concluded that
objectively no reasonable suspicion existed at the time warranting
the arrest of the plaintiff. In this regard the first defendant has
failed to discharge the onus that the arrest and detention
of the
plaintiff was justified in terms of section 40(1)(b) of the CPA. It
is therefore concluded that the arrest and detention
of the plaintiff
was unlawful.
[39]
I am
equally persuaded that no reason whatsoever existed for the continued
detention of the plaintiff.
[40]
The
plaintiff is entitled to damages for the injustice that she has
suffered. It was clear from her evidence that she had suffered
great
humiliation as a result of the arrest. She also testified that her
in-laws were now of the view that she was lying about
her true
identify. Her credit rating was also affected by the incident. It is
trite that the
amount
that should be awarded to a plaintiff as damages falls within the
sole discretion of the court although the court may have
regard to
what other courts have decided to be reasonable in comparable
circumstances.
[41]
It
is, however, acknowledged that the assessment of awards of general
damages with reference to awards made in previous cases is
fraught
with difficulty. The facts of a particular case need to be looked at
as a whole and few cases are directly comparable.
They are, however,
a useful guide to gage what other courts have considered to be
appropriate but they have no higher value than
that.
[42]
The
assessment of general damages is therefore a matter (which falls)
within the discretion of the trial court and that it depends
upon the
unique circumstances of each particular case.
[6]
I have taken note of the circumstances under which the plaintiff was
arrested and the subsequent trauma that she had experienced
as a
result of the arrest. It was clear from her demeanour in the witness
box that the incident severely traumatised her. I have
taken note of
the fact that she had been detained for approximately 9 days. I am,
however, mindful of the fact that the
length
of time that a person had been detained after arrest is but one of
the factors to be considered when determining what should
be awarded
in terms of damages: All the relevant circumstances should be
considered. See:
Minister
of Safety and Security v Tyulu
.
[7]
[43]
I
have already pointed out that the plaintiff has suffered considerable
distress and humiliation as a result of the arrest. There
is also no
doubt that the arrest of the plaintiff constituted a serious invasion
of her right to movement and dignity. In the circumstances
I am of
the view that it would be fair to award the plaintiff damages in the
amount of R 300 000.00 (three hundred thousand
rand) for her
unlawful arrest and subsequent unlawful detention.
The
liability of the second defendant
[44]
There
is one outstanding issue to consider and that is whether the second
defendant could also be held liable. The plaintiff claimed
that the
second defendant’s employees were reckless, negligent and
careless in dealing with the plaintiff’s and with
Duma KZN’s
applications for identity documents. I have already pointed out that
it was common cause that the second defendant
had issued the same ID
(apart from the photos appearing in the documents) to both Duma GP
and Duma KZN. It is, however, not clear
from the evidence how this
mistake had occurred. What is clear from the evidence is the fact
that the second defendant was already
aware of the duplication of
ID’s at the time of the arrest and had Langa made enquiries
with the second defendant, the second
defendant would have clarified
the situation for him.
[45]
I
am in agreement with the submission that the plaintiff bears the onus
to prove the existence of a nexus between the second defendant’s
conduct and the detrimental consequences she had sustained as a
result of the second defendant’s conduct in issuing two
identical IDs.
[46]
Although
it was not in dispute that the second defendant did in fact issue two
identical ID documents, it was submitted that the
issuing of the two
IDs (factual causation) is simply too remote from the actual arrest
(legal causation). In respect of causation
the Supreme Court of
Appeals (as it then was) in
International
Shipping Co (Pty) Ltd v Bentley
[8]
stated
as follows:
“
As
has previously been pointed out by this Court, in the law of delict
causation involves two distinct enquiries. The first is a
factual one
and relates to the question as to whether the defendant's wrongful
act was a cause of the plaintiff's loss. This has
been referred to as
'factual causation'. The enquiry as to factual causation is
generally conducted by applying the so-called
'but-for' test,
which is designed to determine whether a postulated cause can be
identified as a
causa
sine qua non
of the loss in question. In order to apply this test one must make a
hypothetical enquiry as to what probably would have happened
but for
the wrongful conduct of the defendant. This enquiry may involve the
mental elimination of the wrongful conduct and
the substitution of a
hypothetical course of lawful conduct and the posing of the question
as to whether upon such an hypothesis
plaintiff's loss would have
ensued or not. If it would in any event have ensued, then the
wrongful conduct was not a cause of the
plaintiff's loss;
aliter
,
if it would not so have ensued. If the wrongful act is shown in this
way not to be a
causa
sine qua non
of the loss suffered, then no legal liability can arise. On the other
hand, demonstration that the wrongful act was a
causa
sine qua non
of the loss does not necessarily result in legal liability. The
second enquiry then arises, viz whether the wrongful act is linked
sufficiently closely or directly to the loss for legal liability to
ensue or whether, as it is said, the loss is too remote.
This is
basically a juridical problem in the solution of which considerations
of policy may play a part. This is sometimes called
'legal
causation'…. Fleming
The
Law of Torts
7th ed at 173 sums up this second enquiry as follows:
'The
second problem involves the question whether, or to what extent, the
defendant should have to answer for the consequences which
his
conduct has actually helped to produce. As a matter of
practical politics, some limitation must be placed upon legal
responsibility, because the consequences of an act theoretically
stretch into infinity. There must be a reasonable connection between
the harm threatened and the harm done. This inquiry, unlike the
first, presents a much larger area of choice in which legal policy
and accepted value judgments must be the final arbiter of what
balance to strike between the claim to full reparation for the loss
suffered by an innocent victim of another's culpable conduct and
the excessive burden that would be imposed on human activity
if a
wrongdoer were held to answer for all the consequences of his
default.'”
[9]
[47]
The
important enquiry in this instance is whether the wrongful act (of
issuing two IDs to two different individuals) is linked sufficiently
closely to the unlawful arrest of the plaintiff in order for legal
liability in respect of the second defendant to ensue.
[10]
In general it is accepted that a wrongdoer is not liable for harm
which is too remote from the conduct concerned or where the harm
was
not foreseeable.
[48]
I am of the
view that the damages suffered by the plaintiff are simply too
remote. It is in my view inconceivable that the second
defendant even
though it was negligent could have foreseen the reasonable
possibility that the first defendant would some 18 years
later arrest
the plaintiff for ID fraud even thought there was no such fraud.
Furthermore, had Langa - who had a duty upon him
to properly consider
the facts available to him and not to accept
lightly
or without checking the facts where it can be checked
–
the plaintiff
would not have been arrested. I am therefore on the evidence before
me not persuaded that the arrest is sufficiently
closely connected to
the issuing of two IDs in order for legal liability to arise in
respect of the second defendant to arise.
Order
In
the result the following order is made:
1.
The
first defendant is ordered to pay the plaintiff an amount
of
R 300 000.00 (three hundred thousand rand) for her unlawful
arrest and subsequent unlawful detention and to pay
interest
on this amount at the rate of 15,5% per annum from 14 days after the
date of judgment to date of payment.
2.
The
first defendant is ordered to pay the costs of suit.
_________________________
AC
BASSON
JUDGE
OF THE HIGH COURT
[1]
51 of 1977
[2]
1988 (2) SA 654 (SE).
[3]
2009 (3) SA 434
(W)
[4]
At 441A.
[5]
Quoted from the headnote.
[6]
Minister of Safety and Security v
Seymour
2006
(6) SA 320
(SCA) para 17;
Rudolph
& others v Minister of Safety and Security
&
another
2009
(5) SA 94
(SCA) paras 26-27.
[7]
2009
(5) SA 85
(SCA).
[8]
1990 (1) SA 680 (A).
[9]
At 700E – 701C.
[10]
mCubed
International (Pty) Ltd &
another v Singer NNO & others
2009
(4) SA 471
;
[2009] 2 All SA 536
(SCA)
para
22.