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[2016] ZAGPPHC 765
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Latakgomo v Minister of Safety And Security (A861/2014) [2016] ZAGPPHC 765 (30 August 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
number: A861/2014
Date:
30 AUGUST 2016
In
the matter between:
MATSOBANE NELSON
LATAKGOMO
APPELLANT
And
MINISTER
OF SAFETY AND SECURITY
RESPONDENT
JUDGMENT
PRETORIUS
J,
(1)
This
appeal is against the whole judgment and order delivered by Maumela J
on 28 September 2011. The court
a
quo
did not grant leave to appeal, but leave to appeal was granted by the
Supreme Court of Appeal on 16 October 2014 to the full court
of this
division. An application for condonation for the heads of
argument of the respondent being filed out of time was
unopposed and
was granted. It is based on a claim that was originally
launched for unlawful arrest by the appellant.
(2)
It
is common cause between the parties that on 5 November 2007 the
appellant was arrested by Constable Moodley, acting within the
course
and scope of his employment as a member of the South African Police
Services, the respondent. The appellant was taken
to Brixton
Police Station where he was detained overnight, after which he
appeared in court on 6 November 2007 and was released
at
approximately 13h00.
(3)
The
appellant instituted an action for damages against the respondent,
claiming unlawful arrest as the cause of action. The
appellant
alleges that he was unlawfully arrested and detained without a
warrant of arrest on a charge of shoplifting. The
arrest and
duration of detention are both common cause. His evidence in
relation to the condition of the cell at the police
station is not in
dispute.
(4)
Due
to these facts the respondent bears the onus to establish the
lawfulness of both the arrest and the detention on a balance of
probabilities.
(5)
Section
40(1) of the
Criminal
Procedure Act
[1]
(“the CPA”) provides:
“
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 than the
offence of escaping from
lawful custody;”
(6)
If
all the jurisdictional requirements of subsection 40(1)(b) are
present, the policeman will be empowered to arrest a suspect without
a warrant of arrest.
(7)
The
main question in the present instance is whether the suspicion, on
which Constable Moodley arrested the appellant, was reasonable.
His evidence in this regard is crucial.
FACTUAL BACKGROUND:
(8)
On
5 November 2007 Constable Moodley received a message which caused him
to proceed to Pick n Pay Store in Milpark, Johannesburg.
The
manager of the store reported to him that certain of his employees
had allegedly committed the crime of theft over the week-end
at the
store. Subsequently Mr Bhamjee showed him a video of the
alleged crime taking place. He informed Constable Moodley
that
some of the employees had been arrested over the weekend. It
later transpired that they were all subsequently released.
(9)
The
appellant and a certain Simon were called to the manager’s
office, where both Mr Bhamjee and Constable Moodley were present.
The appellant was accused of stealing two packets of chicken and was
shown the video footage. The appellant immediately indicated
that he had paid for the chicken and produced a Pick n Pay till slip
to prove it. He furthermore produced an FNB approval
slip to
show that he had used an FNB card to pay for the chicken portions.
(10)
According
to Constable Moodley this fortified his suspicion that the chicken
portions had been stolen. He concluded that the
appellant had
committed theft, an offence listed under schedule 1 of the
CPA
[2]
.
The appellant and Simon were arrested at 09h00 and detained overnight
at the Brixton police station. The next morning
the appellant
appeared in court and the prosecutor decided not to prosecute him and
he was released at 13h00 at court.
(11)
The
video recording was ruled to be inadmissible by the court as the
appellant and his legal team had no prior knowledge that it
would be
used at trial. Furthermore no evidence was presented in regards
to the authenticity of the video tape.
(12)
Mr
Bhamjee, the owner of the store’s evidence, was that he did not
see the appellant tampering with the packets of chicken
portions that
he had bought and had proof of payment of. There is no
indication that these two packets of chicken portions
were tampered
with and no investigation was launched to ascertain whether it
contained more chicken than it was supposed to contain.
Mr
Bhamjee conceded that the appellant was not one of the culprits he
had observed in the cold room stealing from him. The
appellant
lived close to the store. This investigation to ascertain
whether the appellant’s packets of chicken portions
had been
tampered with could have been done with ease. No explanation is
given as to why it was not done. The further
evidence by both
Mr Bhamjee and Constable Moodley was that they did not bother to
examine the till slip produced by the appellant
and indicated to the
appellant that he should show it to the magistrate.
(13)
Constable
Moodley did not form his own opinion and reasonable suspicion, but
relied upon what was conveyed to him by Mr Bhamjee
and on what he had
witnessed on the inadmissible content of the video footage. He
did no further investigation and refused
to consider the till slip
and proof of payment with a FNB card, as a reasonable person in his
position should have done.
The argument that the appellant had
paid for the chicken at the till where a co-perpetrator was on duty
has to fall away.
The evidence was that she could not assist
him, due to the fact that he was paying by card and he had to go to
another teller.
Furthermore the packets of chicken portions
were inspected and approved by the security guard at the exit.
LEGAL POSITION:
(14)
In
Olivier
v Minister of Safety and Security and Another
[3]
,
Horn J held:
“
Personal
liberty weighs heavily with the courts. A balance has to be found
between the right to individual liberty on the one hand
and the
avoidance of unnecessary restriction of the authority of the police
in the exercise of their duties on the other hand.
There
is no doubt that when these factors are evenly balanced, the scales
in a democratic constitutional society would fall on the
side of
individual liberty
.”
(Court
emphasis)
(15)
Section
12(1)(a) and (b) of the
Constitution
[4]
of South Africa provides:
“
Everyone has the right to freedom and
security of the person, which includes the right-
(a)
not
to be deprived of freedom arbitrarily or without just cause;
(b)
not
to be detained without trial…”
(16)
It
is trite that the test is objective when considering whether a police
officer had a reasonable suspicion in the circumstances
of the case.
The court has to decide whether Constable Moodley could have
“reasonably suspected” the appellant
of having committed
theft. If the court finds for the respondent on this issue,
then the court has to decide whether the
respondent can affect a
warrantless arrest where there exist no circumstances preventing him
to obtain a warrant before arresting
the appellant.
(17)
In
Mabona
and Another v Minister of Law and Order and Others
[5]
,
Jones J held:
“
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.”
(Court
emphasis)
(18)
In
Minister
of Safety and Security V Seymour
[6]
,
Nugent JA held”
“
I
do not think that the courts in earlier cases placed less value on
personal liberty than ought to be placed on it today
.
Indeed, what was said in May shows the contrary. Nor do I think there
is any basis for concluding that awards that were made at
that time
reflect a more tolerant judicial view of incursions upon personal
liberty. It was precisely because personal liberty
has always been
judicially valued that the incursions that were made upon it by the
Legislature and the Executive at that time
were so odious. The real
import of the Constitution has not been to enhance the inherent value
of liberty, which has been constant,
albeit that it was
systematically undermined, but rather to ensure that those incursions
upon it will not recur. To the extent
that the learned Judge placed a
jurisprudential premium on personal liberty that was absent before
now, in my view, it was misdirected.”
(Court
emphasis)
(19)
Section
39(2) of the
Constitution
[7]
provides:
“
When interpreting any legislation, and
when developing the common law or customary law, every court,
tribunal or forum must promote
the spirit, purport and objects of the
Bill of Rights.”
(20)
This
court takes into consideration that the suspicion Constable Moodley
formed was based solely on Mr Bhamjee’s report.
According
to this report the appellant was not observed taking part in the
theft by Mr Bhamjee, either in the cold room or on the
video.
Furthermore the appellant had a valid proof of payment, which
Constable Moodley did not follow-up in any way.
There was no
indication that the proof of payment produced immediately by the
appellant, was not genuine. The production
of the till slip
should immediately have alerted Constable Moodley to thoroughly
investigate the allegation against the plaintiff
before taking the
drastic step of arresting the appellant without a warrant.
(21)
There
was nothing in the statement by Mr Bhamjee which could have caused
Constable Moodley to have a reasonable suspicion that the
appellant
had committed the crime of theft. There is no evidence at all
that links the appellant to the syndicate which had
purportedly
committed the crime of theft. The arresting officer did not
evaluate the evidence, nor did he investigate the
allegations against
the appellant. Had he considered the till slip and the FNB card
payment proof, he would not have come
to the same conclusion, but he
chose to ignore it. Constable Moodley did not try and
corroborate the allegations by Mr Bhamjee,
although it was clear that
Mr Bhamjee’s statement was speculative and did not contain any
concrete allegations against the
appellant.
(22)
In
these circumstances we find, that due to the lack of evidence at the
time of the arrest, Constable Moodley could not have had
a reasonable
suspicion that the appellant had committed the crime of theft.
(23)
We
must agree with the sentiment expressed in
Gellman
v Minister of Safety and Security
[8]
where the court said:
“
An arrest is not a substitute for good
police work.”
In
this instance Constable Moodley made no attempt to corroborate the
complaint and to ascertain whether the plaintiff was one of
the
perpetrators identified by Mr Bhamjee. It would have been very
easy for him to inspect and compare the till slip, the
FNB card
statement and the chicken portions bought. He failed in all
respects and I find that the plaintiff had shown on
a balance of
probabilities that Constable Moodley could not have had a reasonable
suspicion that the plaintiff had committed the
crime of theft.
(24)
It
is abundantly clear that in the prevailing circumstances at the time
it was not necessary to arrest the plaintiff. Constable
Moodley
failed to take into consideration the provisions of Standing Order
G341 which provides:
“
Securing the attendance of an accused at
the trial by other means than arrest
(1)
There
are various methods by which an accused’s attendance at a trial
may be secured.
Although
arrest is one of these methods, it constitutes one of the most
drastic infringements of the rights of an individual and
a member
should therefore regard it as a last resort
.
(2)
It
is impossible to lay down hard and false rules regarding the manner
in which the attendance of an accused at a trial should be
secured.
Each case must be dealt with according to its own merits. A
member must always exercise his or her discretion
in a proper manner
when deciding whether the suspect must be arrested or rather be dealt
with as provided for in subparagraph (3).”
(Court
emphasis)
(25)
Members
of the police must implement these provisions and realize that arrest
is only a means to secure the defendant’s presence
at court.
It is not meant to be a punishment in itself.
(26)
The
guidelines for an arrest set out in the
Gellman
case
[9]
should be considered before an arrest is made, namely the police
official should consider whether there are reasonable grounds
to
suspect that the person to be arrested has committed an offence
referred to in Schedule 1, by analysing the evidence at his/her
disposal critically; while there may be circumstances in which an
official can form a reasonable suspicion based only on a witness
statement, those circumstances would be rare and it would be
preferable for the official to find corroborative evidence before
making an arrest; after the official has determined that there are
reasonable grounds for suspecting that the commission of a Schedule
1
offence has been commited, he must exercise his discretion to
determine whether there are circumstances which militate in favour
of
effecting a warrantless arrest.
(27)
The
court has to agree with counsel for the plaintiff where it is stated
that “
when
a police officer exercises a discretion in violation of a standing
order, that might in itself be an indication that the discretion
was
not properly exercised and that the warrantless arrest was unlawful”
.
(28)
Before
infringing upon the constitutional rights of a person the police
officer has to weigh up the facts such as whether the accused
is a
danger to society, may abscond, and has no defence to the allegations
against him. In this case there was no such evidence.
Constable Moodley acted as an agent for Mr Bhamjee, after having been
informed by Mr Bhamjee as to the actions of the plaintiff.
The
respondent failed to discharge the onus to prove the jurisdictional
facts as required in terms of section 140(1)(b) of the
CPA
[10]
.
Therefor he could not have had a reasonable suspicion that the
appellant was guilty of shoplifting and the appeal has to
be upheld.
QUANTUM:
(29)
The
appellant claimed R150 000 for the unlawful arrest and
detention. At the time of his arrest the appellant was the
head
of security at the store. He was arrested whilst on duty in
full view of the personnel and customers of the store.
There
can be no doubt that this caused the appellant embarrassment and
stress as he had to endure the indignity of being arrested
at his
place of employment, in front of the other employees. He was
placed in a police cell where he was kept overnight in
dire
circumstances. He was only released the next day at 13h00 after
the prosecutor decided not to prosecute him.
(30)
In
Minister
of Safety and Security v Seymour
[11]
Nugent JA said the following:
“
Money
can never be more than a crude solatium for the deprivation of what,
in truth, can never be restored and there is no empirical
measure for
the loss
.
The awards I have referred to reflect no discernible pattern other
than that our courts are not extravagant in compensating
the loss.
It needs also to be kept in mind when making such awards that there
are many legitimate calls upon the public purse
to ensure that other
rights that are no less important also receive protection.”
(Court
emphasis)
(31)
The
award of damages in this instance is discretionary. We have
been referred to previous awards, but realize the amounts
in these
awards are mere guidelines, although we have considered the amounts
awarded in similar matters.
(32)
In
all the circumstances we consider an award of R80 000 to be fair
to both the appellant and respondent.
(33)
We
find that the appellant was wrongfully arrested and detained and is
entitled to damages of R80 000.
(34)
The
following order is made:
1.
The
appeal is upheld;
2.
The
respondent to pay the costs of the appeal;
3.
The
order of the court
a
quo
is set aside and the following order is substituted:
3.1
The
respondent is ordered to pay the appellant damages in an amount of
R80 000;
3.2
The
amount of R80 000 is to bear interest at the rate of 9% per
annum from the date of this order to date of payment;
3.3
The
respondent is to pay the appellant’s costs incurred in the
action.
Judge
C Pretorius
I
agree.
Judge
P M Mabuse
I
agree.
Judge
M J Teffo
Case
number : A861/2014
Matter
heard on : 10 August 2016
For the Appellant : Adv R J De Beer
Instructed
by : Arthur Moore Incorporated
For the Respondent : Adv K M Mokotedi
Instructed by : State Attorney
Date
of Judgment : 30 August 2016
[1]
Act 51
of 1977
[2]
Supra
[3]
2008(2)
SACR 387 (WLD) at page 393 f - g
[4]
Act
108 of 1996
[5]
1988(2)
SA 654 (SE) at 658 E-J
[6]
2006(6)
SA 320 (SCA) at paragraph 14
[7]
Supra
[8]
2008(1)
SACR 446 WLD at paragraph 83
[9]
Supra
[10]
Supra
[11]
Supra
at paragraph 20