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[2016] ZAGPPHC 973
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Pallourios and Another v Minister of Safety and Security and Another (20924/2012) [2016] ZAGPPHC 973 (25 November 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
REPORTABLE: NO
OF INTEREST TO OTHER
JUDGES: NO
REVISED
CASE N0:20924/2012
25 November 2016
In the matter
between:
APPOLO PALLOURIOS
FIRST
PLAINTIFF
ANTONIO INTJA
SECOND
PLAINTIFF
and
THE MINISTER OF
SAFETY AND SECURITY FIRST
DEFENDANT
ADJ. OFFICER
PETRUS MAKHOBELA
SECOND
DEFENDANT
JUDGMENT
RANCHOD J:
[1] The plaintiffs
in this matter have instituted action against the defendants for
damages arising from their alleged unlawful
arrest and detention
without
a warrant. It is,
inter alia,
alleged that:
"5. On the 22nd
December, 2010 at Hartbeespoort Police Station, the First and Second
Plaintiffs were arrested without a warrant
by [the second defendant)
a member of the South African Police Service....
6. Thereafter, the
First and Second Plaintiff (sic) were unlawfully detained at
Hartbeespoort Police Station from 07h30 to 22h00
at the instance of
the aforesaid policeman and various other policemen whose names and
ranks are also unknown to the Plaintiffs."
[2]
It is common cause that the arrest took place on the 291h of
December and the particulars of claim were amended accordingly during
the course of the trial.
[3]
It is apparent that the plaintiff's base their claim on an
arrest without a warrant. However, the defendants pleaded that the
arrest
of the plaintiffs was pursuant to a lawfully issued warrant of
arrest.
[4]
During a pre-trial conference the defendants' attorney made
available a copy of the warrant to the plaintiffs' attorneys. The
plaintiffs
nevertheless did not amend their particulars of claim nor
sought to do so during the trial.
[5]
I am satisfied from the evidence led during the trial that a
proper warrant of arrest had indeed been issued by a magistrate. The
second defendant testified that he had been instructed by the Public
Prosecutor to obtain a warrant and thereafter arrest the plaintiffs.
[7]
I should mention at this stage that normally the defendant's
witnesses would testify first as the onus to prove that the arrest
was lawful rested on the defendant. However, the parties had agreed
that the plaintiffs would testify first and the matter proceeded
accordingly.
[8]
The first plaintiff, Mr Pallourios testified that he had first been
arrested on the 9th or 101h of September 2010 (it was a
Friday) and
taken to court on the following Monday when the matter was withdrawn
by the Public Prosecutor and he was released.
He suspected that the
arrest was at the behest of his former employer for whom he had
worked as a close protection officer or,
as is commonly known, as a
bodyguard from September 2009 to March 2010.
[9] Mr Pallourios
testified that on Tuesday 21 December 2010 he received a telephone
call from a Colonel Mokwena, who was in charge
of the Hartbeespoort
police station, requesting him to come with the second plaintiff to
see him on Friday the 241h December. He
says he told the Colonel that
he could meet him the next day, i.e. Wednesday. When he and the
second plaintiff arrived at the police
station on Wednesday they were
immediately arrested. They were told by the second defendant that
they are to be detained while
their addresses were being verified
even though their addresses had been verified in September. They were
told that they were being
charged for extortion and "something
else" which, apparently, was intimidation.
[10] They were again
detained in a cell after returning from verification of their
addresses. The next day they were taken to the
Brits magistrates'
court where the matter was referred to the Regional Court and they
were released on warning. A trial proceeded
and on 28 January 2015 Mr
Pallourios was found not guilty and discharged on all counts. The
learned magistrate noted on the charge
sheet that the proceedings
against him were stopped by the Public Prosecutor on instructions
from the 'OPP'. The second plaintiff
Mr lntja was found guilty on the
main count of an attempt to commit extortion.
[11] Mr Pallourios
testified that when he was arrested he was not shown the warrant of
arrest which was dated 22 December 2010.
He said his arrest was on 29
December 2010 and not on 22 December 2010 as pleaded. At the end of
the plaintiffs' case I granted
an application by their counsel for
the amendment of the particulars of claim accordingly. Mr Pallourios
was adamant that he was
not shown the warrant of arrest when he was
arrested.
[12] Mr lntja
confirmed in broad terms what Mr Pallourios testified to about the
events immediately prior to the arrest and thereafter.
He too said
they were not shown a warrant of arrest by the second defendant when
effecting the arrest.
[13]
After the plaintiffs closed their case the defendants applied for
absolution from the instance. The basis for the application
was that
whereas the plaintiffs' case was based on an arrest without a warrant
the uncontested evidence was that the arrests were
with a warrant.
[14] Plaintiffs'
counsel submitted that even if a warrant of arrest was issued the
arresting officer had a discretion whether to
arrest or not. Unless
he testified it could not be determined whether he had exercised his
discretion properly.
[15] Defendants'
counsel argued that the issue of the proper exercise of a discretion
was not raised in the pleadings.
[16] I thought it
necessary to explore the issue about whether the arresting officer
had exercised his discretion properly and refused
the application for
absolution bearing in mind the dictum of Harms JA in
Sekhoto
1
that:
"[28] Once the
jurisdictional facts for an arrest, whether in terms of any paragraph
of s 40(1) or in terms of s 43, are present,
a discretion arises...
whether or not to arrest.... The officer, it should be emphasised, is
not obliged to effect an arrest."
[17] The second
defendant then testified for the defence and the defendants
thereafter closed their case. Second defendant said
he had arrested
the plaintiffs on the strength of the warrants.
[18] It is evident
that the plaintiffs having not amended their particulars of claim and
faced with the fact that the warrants of
arrest had been issued,
changed tack and sought to persuade the court that even if second
defendant arrested the plaintiffs on
the strength of the warrants, he
did not exercise his discretion properly.
[19] In
Minister
of Safety and Security v Slabbert
2
it was said (I quote from the Headnote):
"The issue on
appeal was whether the High Court's finding that part of the
respondent's detention was unjustified addressed
an issue covered by
the case pleaded and established by the respondent. A determination
of that issue required a consideration
of the pleadings and to a
lesser extent the evidence led at the trial. In the particulars of
claim, the respondent alleged that
the arrest and detention were
wrongful because there were no reasonable grounds for his arrest and
detention and that the arresting
officers were aware of that fact.
The question for
consideration was whether the case pleaded by the respondent covered
the assertion that the refusal to release
him into his wife's care
rendered the further detention unlawful. A perusal of the particulars
of claim showed that such a case
was not pleaded. The arrest and
detention were challenged solely on the basis that the police had no
legal justification for effecting
them.
The purpose of the
pleadings is to define the issues for the other party and the Court.
A party has a duty to allege in the pleadings
the material facts upon
which it relies. It is impermissible for a plaintiff to plead a
particular case and seek to establish a
different case at the trial.
It is equally not permissible for the trial court to have recourse to
issues falling outside the pleadings
when deciding a case.
However,
where the issue in question has been canvassed fully by both sides at
the trial. a party may be allowed to rely on such
issue even if not
covered by the pleadings".
(My underlining).
[20] In Sethoko is
was further held at para 57:
'The case can be
disposed of on a simple basis, namely, that the proper exercise of
Van der Watt's discretion was never an issue
between the parties. The
plaintiffs, who had to raise it either in their summons or in a
replication, failed to do so.
The issue was also not ventilated
during the hearing
.' (My emphasis).
[21] In this matter
before me the issue of the exercise of the arresting officer's
discretion was ventilated during the trial. The
second defendant
testified in evidence in chief - and again under cross-examination -
that he had arrested the plaintiffs because
he had been told by the
public prosecutor to obtain warrants for their arrest and then arrest
them.
[22] The second
defendant said he was not aware that Col. Mokwena had called the
plaintiffs to the police station. He was surprised
when he saw them
there on 29 December 2010. But, he remembered that he had a warrant
of arrest for them, which he had obtained
a week earlier, and
proceeded to arrest them.
[23] Col. Mokwena
was not called to testify. I have before me the plaintiffs'
uncontested version about how it was that they went
to the
Hartbeespoort police station. Was it just coincidence that second
defendant found them at the police station and promptly
arrested
them? I think not. His testimony that he was not aware that Col.
Mokwena had called them to the police station is not
convincing.
There is nothing to indicate that Col. Mokwena had called them to the
police station for a purpose unrelated to their
arrest.
[24] In any event,
when second defendant saw the plaintiffs at the police station he had
a discretion whether to arrest them or
not. The plaintiffs had come
to the police station as requested by Col. Mokwena. This was in spite
of the fact that they had been
arrested and detained earlier in
September by Col. Mokwena, Capt. Tshabalala and Lady Capt. Molatse
and thereafter released. There
could thus have been no fear that they
would evade arrest.
[25] After their
arrest the plaintiffs were detained then taken to verify their
address and thereafter taken to the magistrate's
court the next day.
The fact that they had fixed addressed indicated that they were not
flight risks as is apparent from the fact
that at court they were
released on warning.
[26] The second
defendant repeatedly stated when testifying that he carried out the
instructions of the prosecutor when he arrested
the plaintiffs. The
issue of a discretion whether to arrest or not, according to him, did
not arise.
[27] In my view,
given that the plaintiffs had come voluntarily to the police station
and that their addresses were verified, the
second defendant could
have exercised a discretion whether to take the drastic step of
arresting and detaining them. In Du Toil,
et al Commentary on the
Criminal Procedure Act at 5-20 [Service Issue 51, 2013] the learned
authors state
'Even where a
warrant for the arrest of a suspect has been lawfully obtained in
terms of s 43 this in itself does not necessarily
justify an arrest
to secure the attendance of the suspect in court. In
Brown and
another v Director of Public Prosecutions
&
others
(supra)
Fourie J reaffirmed that an arrest constituted such a drastic
invasion of personal liberty that it still had to be justifiable
according to the demands of the Bill of Rights. A change in the
flight-risk of a suspect might, however, justify his arrest to
secure
his attendance in court (227a-c, 227 i-j). In
Theobald v Minister
of
Safety
and Security and others
2011(1) SACR 379 (GSJ)
the court held that s44 was not peremptory in the sense that a police
officer was bound to arrest a person
where a warrant for his arrest
had been issued. Section 44 was never intended to preclude a police
officer from exercising his
discretion not to effect an arrest in
terms of the warrant should circumstances require that (at [310]).
Where a police officer arrests a suspect pursuant to a warrant of
arrest while he is unaware that he has a dis
cretion whether or
not to arrest
such an arrest is unlawful.
The exercise of the
arrestor's discretion to arrest or not is peremptory. It stands to
reason that a police officer cannot exercise
a discretion that he is
unaware of ...." (My underlining).
[28] I therefore
find that the arrest was unlawful in circumstances where the second
defendant did not exercise his discretion at
all.
[29] The arrest was
at about 10:15 on Wednesday which, it is not in dispute was a normal
court day. There was, in my view, sufficient
time to take the
plaintiffs to court the same day. Instead, they were detained until
the next morning when they were brought before
a court. It follows
that the detention that followed upon an unlawful arrest was also
unlawful until they were brought before a
court.
[30]
I turn then to the issue of the quantum of damages of the respective
plaintiffs. It is trite law that in the assessment of damages
for
unlawful arrest and detention, it is important to bear in mind that
the primary purpose is not to enrich the aggrieved party
but to offer
him some much needed solatium for his injured feelings.
(Minister
of Safety and Security v Tyulu 2009 (5) 85 (SCA)).
There is no
fixed formula for the assessment of damages for non-patrimonial loss.
The satisfaction is assessed
ex aequo et bono
(according to
what is just and good).
(Seria v Minister of Safety and Security
and others
2005 (5) SA 130
(CPD)).
[31]
Factors that a court takes into account include the age and health of
the plaintiff, the circumstances of his arrest, the nature
and
duration of the arrest, the plaintiffs' social and professional
standing, whether he was arrested for an improper motive or
as a
result of malice; publication of the arrest and plaintiffs' income. A
court may also have regard to awards made in previous
cases, but they
can merely serve as a guide as no two cases are exactly alike. It is
also trite that our courts are not extravagant
in compensating the
loss arising from unlawful arrest and detention. (See
Minister of
Safety and Security v Tyulu 2009 (5) 85 (SCA), Seria v Minister of
Safety and Security and others
2005 (5) SA 130
(CPD)
and
Minister
of Safety and Security v Seymor
2006 (6) SA 320
(SCA)).
[32]
In
Tyulu
at para 26 is was also said that:
'However, our courts
should be astute to ensure that the awards they make for such
infractions reflect the importance of the right
to personal liberty
and the seriousness with which any arbitrary deprivation of personal
liberty is viewed in our law. I readily
concede that it is impossible
to determine an award of damages for this kind of injuria with any
kind of mathematical accuracy.
Although it is always helpful to have
regard to awards made in previous cases to serve as a guide, such an
approach if slavishly
followed can prove to be treacherous. The
correct approach is to have regard to all the facts of the particular
case and to determine
the quantum of damages on such facts....'
[33] At the time of
his arrest the first plaintiff was manager of a shop in
Pretoria-West. He testified that he felt traumatised
by his arrest -
more so than when he was first arrested in September. He said unlike
the time of his first arrest when the police
were 'arrogant' this
time round they 'just kept quite'. He says an article appeared about
the case in the Beeld newspaper which
was factually incorrect but did
not elaborate as to in what respects it was so. He says he felt
embarrassed when relatives called
him about it.
[34]
As far as him being traumatised is concerned he again did not
elaborate further. It seems to me that he did not suffer any
degradation beyond that which is inherent in being arrested and
detained. He was detained for just under 24 hours before being
brought before court when he was released on warning.
[35]
I am of the view that an amount of R50 000.00 would be adequate
compensation for the contumelia, unlawful arrest and unlawful
detention.
[36] I turn then to
the second plaintiff. The facts and circumstances leading to his
arrest and detention are almost identical to
that of the first
plaintiff except that he was kept in a separate cell apart from the
first plaintiff. He said his family was disturbed
about his arrest
but did not elaborate. He said the arrest affected his reputation but
again, he did not elaborate further save
to say he had been in the
South African Airforce up until 2008 which was some two years before
his arrest.
[37] I am of the
view that in the case of the second plaintiff as well an amount of
R50 000.00 would be adequate for the contumelia,
unlawful arrest and
unlawful detention.
[38] There remains
the question of costs. When the plaintiffs launched the action the
amount claimed (R100 000.00) fell well within
the jurisdiction of the
Magistrate's court. The amount awarded is within the Magistrate's
court jurisdiction. It is appropriate
that costs should be awarded on
the Magistrate's court scale.
[39] I make the
following order:
1. The first
defendant is to pay first plaintiff an amount of R50 000.00 (Fifty
Thousand Rand) as damages together with costs of
suit on the
Magistrate's court scale.
2. The first
defendant is to pay second plaintiff an amount of R50 000.00 (Fifty
Thousand Rand) as damages together with costs of
suit on the
Magistrate's court scale.
___________________________
RANCHOD J
JUDGE OF THE HIGH
COURT
Appearances:
Counsel on behalf of
Plaintiffs: Adv M Olivier
Instructed by: F Van
Wyk Inc.
Counsel on behalf of
Respondents: Adv Jansen van Rensburg
Instructed by: The
State Attorney
Date heard:15 August
2016
Date delivered: 25
November 2016
1
Minister
of Safety and Security v Sekhoto
2011 (1) SACR 315
(SCA) at 327 para
[28].
2
[2010]
2 All SA 474
(SCA).