About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2016
>>
[2016] ZAGPPHC 825
|
|
Malinga v Minister of Police (49213/2012) [2016] ZAGPPHC 825 (8 September 2016)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
PROVINCIAL DIVISION, PRETORIA
CASE
NO: 49213/12
DATE:
8/9/2016
In
the matter:
MESHACK
.
MALINGA
…...............................................
PLAINTIFF
and
THE
MINISTER OF
POLICE
…...........................................
DEFENDANT
JUDGEMENT
KEKANA
AJ:
1.
The
Plaintiff instituted action against the Defendant for payment of the
amount of R1 000 000.00.
2.
The Plaintiff's claim is for unlawful arrest which was
effected on the 06th March 2012 by Constable Phala, a member of the
South
African Police Services.
3.
The Defendant assumed the onus to prove that the arrest was
lawful and within the ambits of
section 40
(1) (b) of the
Criminal
Procedure Act 51 of 1977
.
Section 40
(1) (b) requires that the four
jurisdictional factors has to be satisfied for the lawfulness of the
arrest without a warrant namely:-
(i)
the arrest officer must be a peace officers;
(ii)
he must entertain suspicion that a crime has been committed;
(iii)
suspicion must rest on reasonable grounds;
(iv)
the crime committed must fall under the ambit of Schedule 1.
4.
The
Defendant called Ms Ntshalintshali to testify. She testified that she
is a senior African National Congress official in the
Mpumalanga
Province responsible for the property of the organisation. She was
called upon to intervene on the 06th March 2012 when
members of the
public demonstrated against the Plaintiff at the Parliamentary
Constituency Offices, in Middleburg. She stated that
the incident of
public violence arose as a result of nomination documents which were
taken by the Plaintiff from a certain Mr Gift
Sebeloane and which
documents the Plaintiff was neither authorised nor entitled to
possess. Ms Ntshalintshali further testified
that she approached the
Plaintiff and pleaded with him to return the documents in the
presence of the police. She failed to persuade
the Plaintiff to
return the documents and she then called the chairperson who advised
her that if the Plaintiff refuses to return
the documents, she must
lay a criminal charge against him. It is at that stage when she
called the police who were present at the
scene to arrest the
Plaintiff. She laid a charge of theft against the Plaintiff with MAS
No 161/03/2012 at the Middleburg Police
Station.
5.
The Defendant's second witness was Constable Phala, who was
the arresting office. Constable Phala testified that he reacted to a
radio control complaint and rushed to the Parliamentary Constituency
Office of the African National Congress. Constable Phala,
testified
that when he arrived at the scene, he found Constables Du Preez,
Steward and Thema. In an attempt to curtail further
incidents of
violence he, together with the other police officers, entered the
Parliamentary Constituency Offices to resolve the
issue of the
alleged stolen documents. He stated that inside the offices, he
attempted to mediate between the complainants and
Plaintiff so that
an amicable solution could be reached. He testified that he arrested
Plaintiff when he realised during mediation
that documents were
stolen. He further testified that they handcuffed him and put him at
the back of the police van.
Constable
Phala testified that the Plaintiff told him that he did not have the
document with him but advised that they were in a
safe place.
6.
The Plaintiff testified that he is the member of Provincial
Legislature and was a former Member of the Executive Committee of
Agriculture
in Mpumalanga.
7.
He testified that on the 06th March 2012, he went to get food
at Nandos and noticed that Gift Sebeloane was in possession of the
African National Congress documents. He testified that he took the
documents from Gift and advised him that he was not authorised
to be
in possession of those documents as he was not an appointed regional
deployee to deal with the branch nomination.
8.
Plaintiff stated that Gift called other members of the African
National Congress and an argument ensued. A mob attacked him and a
certain Selolo. He was rescued by Constable and Sergeant Du Preez,
who were driving in the police van and escorted him back to
the
Parliamentary Constituency Office to fetch his car and his laptop.
9.
Plaintiff
testified that Gift Sebeloane was amongst the people who attended the
meeting with Ms Ntshalintshali and the police at
the Parliamentary
Constituency Office.
10.
Plaintiff further testified that when he was asked to give
back the documents, he told them that he was not in possession of
them
but Didi was. It was at that stage when Constable Phala read him
his rights and proceeded to arrest him.
11.
Plaintiff testified that he was taken to the police station at
about 18h45 where he was formally charged with theft and released
at
20h05.
12.
Plaintiff further testified that his arrest was reported in
the Middle Observer and City Press newspapers on the Sunday following
the incident.
13.
It is common cause that the Plaintiff was arrested by
Constable Phala without the warrant of arrest and as a result, the
arrest
was Pima facie unlawful.
14.
As a defence, the Defendant relied on the prov1s1ons of
section 40
(1) (b) of the
Criminal Procedure Act 51 of 1977
.
15.
The issue for determination in this trial is whether the
arrest of the Plaintiff was lawful.
16.
I
n
Mabona and Another v Minister of Law
and
Order
and Others
1988 (2) SA 654
SECLD, the following
is
stated at page 657 E - H
regarding a suspicion
reasonably entertained "the test is whether a suspicion is
reasonably entertained within the meaning
of section 40 (1) (b) is
objective. Would a reasonably 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 be to have been stolen. It seems to me that in
evaluating his information
a reasonable man would bear in mind that
the section authorizes drastic police action. It authorizes an arrest
on the strength
of a suspicion and without the need to swear out a
warrant, is something which otherwise would be an invasion of private
rights
and personal liberty. The reasonable man will therefore
analyse and assess the quality of information at his disposal
critically
and he will not accept it lightly or without checking it
where it could be checked. It is only after the examination of this
kind
that will allow himself to entertain a suspicion which will
justify the arrest. This is not to say that the information at his
disposal must be 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 highly or arbitrary
and not a reasonable suspicion".
17.
In Minister of Safety and Security v Sekhoto and
Another
2010 (1) SACR, the Court per
Harms JA,
dealt with the interpretation of the provisions of
Section 40 (1) (b) and (g) of the Criminal Code. There the
respondents were arrested
by police officers without a warrant and on
suspicion of a contravention of Section 2 of the Stock Theft Act 57
of 1959. At paragraph
[28] of the judgement, the Court said "once
the jurisdictional facts for an arrest, whether in terms of any
paragraph of Section
40 (1) or in terms of Section 43 are present a
discretion arises. The question whether there are any constraints on
the exercise
of discretionary powers is essentially a matter of
construction of the empowering of statute in a matter that is
consistent with
the Constitution. In other words, once the required
jurisdictional facts are present, the discretion whether or not to
arrest arises.
The officer, it should be emphasised, is not obliged
to effect an arrest. This was made clear by this Court in relation to
Section
43 in
Groenewald v Minister of
J
ustice.
18.
In applying the legal principles to the facts in this matter,
the question to be determined is whether Constable Phala had a
reasonable
suspicion in exercising his discretion to arrest the
Plaintiff.
19.
There is no evidence that Constable Phala took steps to
ascertain what exactly was stolen by the Plaintiff in order to
satisfy himself
that the documents could be the subject of theft.
20.
Constable Phala testified that after affording the complainant
and the Plaintiff an opportunity to state their cases when he
attempted
to mediate between the parties, he was satisfied that the
Plaintiff have stolen documents which belonged to the African
National
Congress. These documents that gave rise to the public
violence and subsequent arrest of the Plaintiff, were in possession
of Gift
Sebeloane when Plaintiff took possession thereof. Gift
Sebeloane was not called to testify despite the fact that he was in
Court
at the hearing of the matter.
21.
In Munster Estates (Pty) Ltd v Killarney Hills
(Pty) Ltd
1979 (1) SA 621
AD,
the learned Judge
a quo drew an inference adverse to the Plaintiff from its failure to
call Gerson as a witness notwithstanding
the fact that he was
available and in a position to testify on the crucial issue in the
case, i.e. what was discussed at the meeting
which took place on 4
August 1972.
22.
In the present case, it was not disputed that the public
violence was politically motivated. The complainant and the Plaintiff
were
senior member of the African National Congress who were at
variance as to who was entitled to be in possession of the branch
nomination
forms. It is also not disputed that Constable Phala had
not satisfied himself of which documents of the African National
Congress
were stolen by Plaintiff. In these circumstances, and based
on the legal principles set out by Harms JA in Sekhoto and other
authorities,
I am convinced that the police officer, Constable Phala,
acted unlawfully and did not exercise his discretion reasonably.
23.
Factors which plays a role in the assessment of the amount of
damages are the following: the circumstances under which the
deprivation
of liberty occurred; the presence or absence of malice or
an improper motive on the part of the defendant, the direction of the
deprivation of liberty; and whether the defendant apologizes or
provides a reasonable explanation for what happened. In addition,
inflation may be taken into account if in addition to the deprivation
of liberty other personality interest such as honour especially
reputation are affected, the amount of satisfaction will obviously be
increased.
24.
In
Thandani v Minister of Law and Order
1991 (1) SA 702
(E) at 707 B Van
Rensburg J ,
held that "in considering quantum, sight
must not be lost of the fact that the liberty of an individual is one
of the fundamental
rights of a man in a free society which should be
jealously guarded at all times and there is a duty on our Courts to
preserve
this right against infringement. Unlawful arrest and
detention constitutes a serious inroad into freedom and the rights of
individual.
In the worlds of Broome JP in
May v Union
Government
1954 (3) SA 120N
at 130F
"Our law has always
regarded deprivation of personal liberty as a serious injury."
25.
In Takawira v Minister of Police
2013
J
OL
30554
at
paragraph 36, Spilg J ,
held
that "the invasion of a broad category of rights which may be
distilled to include the right to personal liberty, the
right not to
be arbitrarily arrested without lawful cause, the right to dignity
and the right to one's reputation which includes
the right to be
defamed".
26.
In Takawira
at paragraph 42, Spilg J held that
"it is trite that an enquiry into unlawful detention (as with
arrest) seeks to determine
the extent to which the various affected
rights of personality were impaired and their duration. The enquiry
involves both a subjective
element based on the emotional effect of
the wrong committed to the Plaintiff (such as humiliation or anguish
of suffering injustice,
the loss of self-esteem and self-respect) and
an objective impairment based on external effects of the wrong (such
as loss of reputation
in the eyes of others)".
27.
In Mofokeng and others v Minister of Police 2014/
A3084
(unreported) paragraph 14
Spilg J,
stated that "while the Court can make
assumptions as to the general extent of humiliation and degradation
suffered by a person
wrongfully arrested and detained, it should also
receive evidence that deals in detail with the arrest, the subsequent
detention
and their actual effect on the individual claimant.
This
would include the extent of degradation experience, the extent of
helplessness endured and how he or she subjectively felt
about others
such as family, friends and work colleagues might think.
28.
Plaintiff described in his evidence in chief how he was handcuffed by
the police and put at the back of the police van. Plaintiff
also
testified that he was arrested at his place of employment, in full
view of his colleagues and a crowd that initially attacked
him when
he was rescued by Constable and Sergeant Du Preez. Plaintiff further
described how on a Sunday, following the incident,
he walked into a
grocery shop and saw a picture of himself handcuffed and being led to
a police van. He testified that his 11 year
old daughter, who had
accompanied him to the shop, requested him to buy all the City Press
Newspapers so that people should not
read about his arrest. Plaintiff
explained how he was embarrassed as his dignity as a Member of the
Provincial Legislature and
a former MEC of Agriculture was lowered,
and he felt humiliated and distressed by the incident.
29.
On the other hand, from the evidence presented by Constable Phala and
Ms Ntshalintshali, it appears that Constable Phala arrested
the
Plaintiff at the instance of an advice received by Ms Ntshalintshali
from the chairperson. Certainly Constable Phala did not
investigate
the complaint as he himself testified that it was the first time in
his service to arrest a person for stolen documents.
30.
The failure by Constable Phala to explain why he arrested the
Plaintiff on that day, must also have an aggravating effect when
considering the appropriate award.
31.
Having regard to the comparable cases on the subject, consider an
amount of R120 000.00 justified in respect of the unlawful
arrest.
32.
I accordingly order the following:-
1.
The Defendant to pay to the Plaintiff the sum R120 000.00;
2.
The Defendant is to pay 15.5°/of interest on the aforesaid amount
from date of judgement;
3.The
Defendant to pay the costs of suit including counsel's costs.
________________________________________
KEKANA,
AJ
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
PROVINCIAL DIVISION,
PRETORIA
Attorneys
for the Applicant/ Plaintiff: Martin Terblanche Attorneys
Attorneys
for the Respondent/ Defendant: The State Attorneys