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[2016] ZAGPPHC 1219
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Biko v Minister of Police (47679/2014) [2016] ZAGPPHC 1219 (15 November 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
Number: 47679/2014
15/11/2016
Reportable:
No
Of
interest to other judges: No
Revised.
BEN
FAKADE
BIKO PLAINTIFF
AND
MINISTER
OF POLICE
DEFENDANT
JUDGMENT
MOLEFE
J
[1]
Plaintiff instituted an action against the defendant based in the
delict of unlawful arrest and detention and seeks damages
in the sum
of R4 334 600, 00.
[2]
The plaintiff was arrested on 16 November 2012 at or near Fochville
by members of the South African Police Services (SAPS) on
a rape
charge of a 9 year old child. He was detained in a Fochville
Correctional facility until on 24 February 2014 when he was
found not
guilty and was acquitted.
[3]
Prior to the trial the plaintiff conceded that the police had
reasonable cause for effecting his arrest on a charge of rape
of a
child in terms of Section 40 (1) (b) of the Criminal Procedure Act 40
of 1977 ("CPA") and in this regard relied
on
Minister of
Safety and Security v Sekhoto and Another
2011 (5) SA 367
(SCA);
"Clear that in serious crimes
such as those listed in Schedule 1, arrestor could seldom be
criticized for arresting suspect
in order to bring him or her before
court".
Section
40 (1) (b) of the CPA provides that a peace officer may without
warrant arrest any person -
("(b) whom he reasonably suspects
of having committed an offence referred to in Schedule 1".)
[4]
The issues to be determined by this Court are:
4.1 was the plaintiff's
detention post arrest lawful or unlawful?
4.2 if unlawful, the
quantum of the plaintiff's damages.
Unlawful
Detention
[5]
By agreement, counsel prepared the following agreed chronology of
events document to assist the court; the facts therein are
not
disputed.
1. 15/11/2012: class teacher (Mosia)
questions complainant due to her offensive smell;
2. 16/11/2012: Constable Mokoena is
called to the school;
3. 16/11/2012: complainant made a
statement to the police;
4.
16/11/2012:
complainant examined by Doctor; J88 report made findings:
"old
tear of hymen, child has
a
sexual
transmitted
disease
in
an
offensive
state";
5. 16/11/2012: plaintiff is arrested
and held at Fochville police station;
6. 17/11/2012: mother made a statement
to the police;
7. 17/11/2012: crime kit of sexual
assault collected from the complainant;
8. 18/11/2012: police arrested Abram
Oupa Phatilane (Troupa) for the same offence;
9. 18/11/2012: bail information
(questionnaire) filled out for the plaintiff;
10. 19/11/2012: plaintiff appeared in
court - remanded in custody for further investigation; held at
Potchefstroom prison, awaiting
trial section;
11. 20/11/2012: plaintiff appeared in
court and made an application for bail - application dismissed;
12. 10/12/2012: complainant's mother
makes a statement to police;
13. 21/12/2012: plaintiff appears in
court - matter remanded for further investigations;
14. 15/01/2013: investigation diary -
suspect to be checked for STD found in the complainant;
15. 16/01/2013: plaintiff appears in
court and remanded in custody;
16. 09/01/2013; note by prosecutor -
suspects in both cases should be taken to the district surgeon and
examined to check if they
have the similar STD as found in the child;
17. 24/01/2013: accused persons taken
to Dr Rambau for examination and their blood samples sent to
laboratory;
18. 25/01/2013: inform doctor/district
surgeon of STD to determine the suspect;
19. 29/01/2013: awaiting the DNA and
STD test results;
20. 25/02/2013: plaintiff appeared in
court; remanded for further investigation;
21. 04/03/2013: investigation diary -
"STD must be investigated";
22. 07/03/2013: plaintiff appeared in
court; remanded in custody;
23. 13/03/2013: investigation diary -
'spoke to Prof Gaudji at university of Pretoria re: STDS;
24. 18/03/2013: both accused persons
to be taken to district surgeon for examination and Human Papiloma
Virus HPV testing;
25. 22/03/2013: spoke to Crisis Centre
to enquire if doctor will re-examine suspect;
26. 15/04/2013: plaintiff appears in
court; matter referred to regional court Fochville;
27. 20/05/2013: plaintiff appears in
regional court for trial; remanded in custody;
28. 08/07/2013: plaintiff appears in
court; matter postponed to 19/07/2013 for copies of docket;
29. 19/07/2013: plaintiff appears in
court; remanded in custody to 09/09/2013 for trial;
30. 09/09/2013: plaintiff appears in
court; remanded in custody to 08/10/2013;
31. 08/10/2013: plaintiff appears in
court; remanded in custody to 03/12/2013;
32. 03/12/2013: plaintiff appears in
court; remanded in custody to 04/02/2014 (no intermediary);
33. 04/02/2014: matter remanded to
13/02/2014;
34. 13/02/2014: matter part heard;
remanded to 17/02/2014;
35. 17/02/2014: remanded to 24/02/2014
for judgment;
36. 24/02/2014: plaintiff found not
guilty and discharged.
Common
Cause Facts
[6]
Plaintiff was arrested on 16 November 2012 and was released on 24
February 2014 and spent 15 months in the awaiting trial section
at
Potchefstroom prison. By end of February 2013 the investigation
against the plaintiff was complete and docket ready.
[7]
Plaintiff made 12 appearances in court and each time he was refused
bail or bail was not considered. At that time, plaintiff
was
permanently employed, owned a house and had a permanent address and
was not a flight risk. A bail questionnaire was completed
and
plaintiff was found suitable for release on bail.
[8]
The chronology as reflected in the docket shows that the plaintiff
was kept in custody pending his medical reports on his STD
status to
link him to the offence. The plaintiff corporated with the police and
submitted himself to medical examinations and tests
whilst in
custody. Even after medical examination were carried out and blood
samples sent to the laboratory plaintiff was still
kept in prison.
[9]
Plaintiff was one of the two suspects arrested for the same offence
and same complainant. The other suspect, Abrahm Oupa Phahlane
was
also not found guilty and was discharged on 25 October 2013.
[10]
Plaintiff's counsel
[1]
submitted
that there was no justification to keep plaintiff in custody pending
the trial for more than a year. Once the medical
examinations and
tests were done he should have been released on bail. Counsel argued
that there was manifest injustice in depriving
plaintiff of his
freedom when even after more than a year at the trial there was still
no medical evidence linking or implicating
him to the rape charge
until he was discharged.
[11]
Rape of a child under 16 years is a Schedule 6 offence. Section 60
(11) (a) of the CPA provides that:
"(11) Notwithstanding any
provision of this Act, where an accused is charged with an offence
referred to
(a)
in schedule
6, the court shall order that the accused be detained in custody
until he/she is dealt with in accordance with the law
unless the
accused having been given a reasonable opportunity to do so addresses
evidence which satisfy the court that exceptional
circumstances
exists which in the interest of justice permit his or her release".
[12]
Defendant's counsel
[2]
,
submitted that the plaintiff was lawfully arrested on 16 November
2012 in terms of section 40 (1) (b) of the CPA and that the
subsequent detention after the lawful arrest was also lawful. The
plaintiff was brought before court within a reasonable time on
Monday
19 November 2012 and that the subsequent detention after he was
brought before court was ordered by the court. Counsel for
the
defendant contends that after the plaintiff's first appearance in
court, the power of the police that was inherent in the power
of
arrest ceased. Counsel in this regard relied on
Minister
of Safety and Security v Sekhoto
2011 (5) SA 367
SCA par 42
wherein
it was held:
"While it is clearly
established that the power to arrest may be exercised only for the
purpose of bringing the suspect to
justice, the arrest is only one
step in that process. 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. Once that has been done, the authority
to detain, that is
inherent in the power to arrest, is exhausted. The authority to
detain the suspect further is then within the
discretion of the
court".
[13]
It was further submitted on behalf of the defendant that should the
court find that the detention was unlawful, the Minister
of Police is
not liable to compensate the plaintiff for damages suffered as a
result of the unlawful detention but that the National
Department of
Public Prosecution (NDPP) should be liable for damages. Respondent's
counsel contends that after the decision by
the Public Prosecutor to
prosecute the plaintiff and after the application for bail was
dismissed by the Magistrate, the continued
detention was not ordered
by the police but by the court.
[14]
There can be no doubt that the crime of rape of a minor child that
was investigated and for which the plaintiff was arrested
is serious
and falls within the purview of Schedule 1 of the CPA. The issue to
be determined is whether the plaintiff's subsequent
detention for a
period of 15 months was lawful.
[15]
Deprivation of liberty remains a serious human rights violation. In
Masisi v Minister of Safety and Security
2011 (2) SACR 262
(GNP)
the court said the following at paragraph 18:
"The right to liberty is an
individual's most cherished right, and one of the foundational values
giving inspiration to ethos
premised on freedom, dignity, honour and
security. Its unlawful invasion therefore strikes at the very
fundamental of such ethos.
Those with authority to curtail that right
must do so with the greatest of circumspection, and sparingly".
[16]
I agree with the submissions made by plaintiff's counsel that there
was no justification to keep the plaintiff in custody pending
trial
for more than a year. The investigation of the case was completed by
the end of February 2013 and the plaintiff was found
to be suitable
for release on bail. A report was compiled by the Correctional
Services confirming plaintiff's personal details
including his
employment status and proof of his residence.
[17]
The purpose of arrest and detention is to bring the suspect before
court. Thereafter less intrusive and oppressive means must
be used to
bring him to court and to ensure that he stands trial. Keeping a
person presumed to be innocent in custody must be considered
in
exceptional cases. A person's constitutional right to liberty cannot
easily be trammeled through the exercise of discretion
on the part of
an investigating officer
(Coetzee v National Commissioner of
Police and Others
2011 (2) SA 227
GNP.
[18]
I am satisfied that the plaintiff's detention post his arrest was
unlawful and the defendant has failed to prove that the plaintiff's
lengthy detention for more than a year was justified in law.
[19]
I have noted with concern that the defendant's defence and argument
that the Minister of Police is not liable for plaintiff's
damages for
unlawful detention but that the Minister of Justice or Director of
Public Prosecutions should be the liable party,
was not pleaded.
Defendant failed to plead that the detention was at the hands of the
prosecution and subject to the further discretion
of the magistrate.
This defence was only raised for the first time in argument.
[20]
Defendant is obliged in terms of rule 22 of the Uniform Rules to set
out the defence he relies on. The purpose of pleadings
is to clarify
the issues between the parties, the allegations in the plea must be
of sufficient precision to enable the plaintiff
to know what the case
is he has to meet. The defendant cannot therefore, rely upon a
defence which is not pleaded, or which he
is not allowed to
incorporate into the plea by an amendment. A pleader cannot be
allowed to direct the attention of the other party
to one issue and
then, at the trial, attempt to canvass another. (See
Erasmus
Superior Court Practice. Volume 2 DI 254 to 256. Second edition Van
Loggerenberg).
On this basis alone, this defence should be
disregarded and fails.
[21]
There is also no merit on this defence. When a matter is
"postponed
for further investigation"
as is the case in this matter, it
means that the police are still investigating and the matter is not
ready for trial. Chronology
shows that from end of February 2013 to
the date of the trial, the police repeatedly claimed to be waiting
for blood results. However,
no such results materialized and the
matter was set down for trial on the same docket as it was in
February 2013.
Quantum
of Damages
[22]
When assessing damages in
matters such as the present, the evaluation of the personal
circumstances of the plaintiff, the circumstances
around the arrest
and the nature and duration of the detention is taken into
account
[3]
.
It was submitted on behalf of the plaintiff that he was locked up in
the police cell for four days sharing the cell with 20 people.
He had
to sleep on the floor with a single dirty blanket. He was kept at the
awaiting trial section in prison for more than a year.
The cell was
overcrowded with 49 prisoners in it. The conditions in prison were
deplorable and unbearable. He was informed that
for the charge he
faced, there were prospects of him spending the rest of his life in
prison and this caused him enormous stress.
Plaintiff is a 47 year
old man and was at the time of the arrest, employed as a welder
earning R600 per week. Plaintiff's counsel
submitted that his loss of
earnings for a year is R28 800 and that he should be awarded general
damages in the sum of R1 825 000,
00 calculated at R5000, 00 per day.
[23]
The purpose of an award for general damages in the context of the
matter such as the present, is to compensate the claimant
for
deprivation of personal liberty and freedom as well as the mental
anguish and distress.
In
Minister of Safety v Tyulu
2009 (5) SA 85
(SCA) at par 26
Bosielo
AJA (as he was then) emphasized that the primary purpose is
"not
to enrich the claimant but to offer him or her some much-needed
solatium for his or her injured feelings".
[24]
Although the determination of an appropriate amount of damages is
largely a matter of discretion, some guidance can be obtained
by
having regard to previous awards made in comparable cases.
Defendant's counsel referred me to the relevant comparisons made
in
Minister of Safety and Security v Seymour
2006 (6) SA 320
(SCA at
325):
"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
a
useful guide to what other courts have
considered to be appropriate but they have no higher value than
that".
Defendant's
counsel also referred me to the awards made in the following cases:
Thandano v Minister of Law and
Order
[4]
;
Minister van Wet and Order v Van den Heever
[5]
and Manase v Minster of Safety and Security
[6]
[24]
As indicated earlier, awards made in previous cases can only serve as
guidelines. An appropriate award will ultimately depend
on the
particular facts and circumstances of each case. I take into account
the circumstances of the arrest; the duration of the
detention, the
indignity of being confined in prison, the personal circumstances of
the plaintiff (albeit limited); the awards
made in previous
comparable cases and the gradual devaluation of the currency. Taking
into account all the circumstances in this
case, I deem R450 000, 00
to be a just and fair amount of damages for the plaintiff. The
defendant is also ordered to pay an amount
of R28 800 for plaintiff's
loss of earnings.
[25]
In the result the following order is made:
1.
The defendant is
ordered to pay the plaintiff an amount of R478 800, 00;
2.
Interest on the
amount shall run at the prescribed rate from date of judgment to date
of final
payment;
3.
The defendant is
ordered to pay the
plaintiff's costs of suit.
D
S MOLEFE
JUDGE
OF THE HIGH COURT
APPEARANCES:
Counsel
on behalf of Appellant:
Adv. I Hussain SC
Instructed
by:
Russia Langa Attoneys
Counsel
on behalf of Respondent:
Adv. V Mashele
Instructed
by:
State Attorneys
Date
Heard:
28 October 2016
Date
Delivered:
15 November 2016
[1]
Adv. I Hussain SC
[2]
Adv. V Mashele
[3]
See Ngcobo v Minister of Police
1978 (4) SA 930
(D) at 935 B-F
[4]
1991 (1) SA 702
AT 707 B
[5]
1982 (4) SA 16 2003 (1) SA 567
[6]
2003 (1) SA 567