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[2021] ZASCA 161
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Brits v Minister of Police & Another (759/2020) [2021] ZASCA 161 (23 November 2021)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
Reportable
Case
no: 759/2020
In
the matter between:
CHRISTIAAN
BRITS
APPELLANT
and
MINISTER
OF
POLICE FIRST
RESPONDENT
COLONEL
JAMES ESPACH
SECOND RESPONDENT
Neutral
citation:
Brits
v Minister of Police & Another
(759/2020)
[2021] ZASCA 161
(23 November 2021)
Coram:
PETSE AP and MATHOPO, MOCUMIE,
MOLEMELA and MOTHLE JJA
Heard:
25
August 2021
Delivered:
This judgment was handed down
electronically by circulation to the parties' representatives via
email, publication on the Supreme
Court of Appeal website and release
to SAFLII. The date and time for hand-down is deemed to be 10h00 on
23 November 2021.
Summary:
Delict – unlawful arrest and
detention – vicarious liability of the Minister of Police –
appropriate amount of
compensation.
ORDER
On
appeal from:
Limpopo Division of the High
Court, Polokwane (Makgoba JP and Mudau J sitting as court of appeal):
1
The appeal is upheld with costs.
2
The order of the high court is set aside and
replaced with the following:
‘
1
The appeal is upheld with costs.
2
The order of the Magistrates’ Court, Tzaneen, is set aside
and
replaced with the following:
“
(a)
The first defendant is ordered to pay R70 000 as general damages
to the plaintiff.
(b)
The first defendant is ordered to pay R7 239.
(c)
The amounts in paragraphs (a) and (b) above shall
bear interest at the prescribed rate from date of the judgment of the
Magistrates’
Court, Tzaneen, being 11 January 2018 to date of
payment.
(d)
The first defendant is ordered to pay the
plaintiff’s costs of suit.”’
JUDGMENT
Molemela
JA (Petse AP and Mathopo, Mocumie and Mothle JJA concurring)
Introduction
[1]
This appeal arises from a delictual claim for
damages instituted by the appellant, Mr Christiaan Brits as the
plaintiff, against
the respondents as the defendants in the
Magistrates Court, Tzaneen (the trial court). The basis of the claim
was that the second
respondent, Col Espach, (cited as the second
defendant in the trial court) had acted wrongfully and unlawfully
when he arrested
the appellant without a warrant at the latter's
business premises, a dealership in second hand goods and scrap metal,
on suspicion
of being complicit in the offence of possession of
property suspected to be stolen. The claim against the first
respondent, the
Minister of Police (cited as the first defendant in
the trial court), was on the basis of vicarious liability. The trial
court
found that the arrest was justified and thus dismissed the
appellant’s claim with costs. The appellant appealed to the
Limpopo
Division of the High Court (the high court). That court, per
Mudau J with Makgoba JP concurring, dismissed the appeal with costs.
Aggrieved by that decision, the appellant sought and was granted
special leave by this Court.
Background
facts
[2]
The circumstances leading to the appellant’s arrest are largely
undisputed.
The
appellant stated in his evidence-in-chief that metal scrap dealers
were regulated by law in relation to the sale and purchase
of
second-hand goods. He
testified
about the procedure normally followed at his shop whenever a seller
offered to sell scrap metal. This procedure was in
apparent reference
to the Second-Hand Goods Act 6 of 2009 (Second-Hand Goods Act), which
prescribes
that all scrap metal dealers engaged in recycling of any controlled
metals be registered and keep a register that contains
the details of
the seller, a description of the product sold, as well as the price
involved in the object of sale.
He
stated that the scrap metal offered for sale is usually a mixture of
different metals, like aluminium, iron, pieces of stone
and pieces of
plastic.
According to the appellant, once the metal is brought to his shop,
the process followed by the shop-assistants entailed separating
and
sorting different metals out. After the sorting process, ‘the
metal is then weighed, written up in the register, the
price
calculated, the ID document [of the seller] would be photocopied, and
then the person leaves with his money’.
His
explanation of the procedure followed at his shop was not disputed by
the respondents.
[3]
On the morning of 4 July 2014 the appellant received a text message
from his former
employee, Mr Dube, asking the appellant to phone him.
He ignored the text message. About 30 minutes later, Mr Dube sent a
message
to his phone via the short message service (SMS) informing
him that he had copper for sale. He told Mr Dube to take it to the
shop.
He explained that the reason he directed him to the shop was
because all business transactions were done at his business premises.
He subsequently received a call from the manager of his business, Mr
Michael Mashapu (Mr Mashapu), who told him that the police
were at
the business premises and required his presence. Upon arrival at the
shop, Col Espach told him that Mr Mashapu had purchased
stolen copper
and the appellant would therefore be arrested. He informed Col Espach
that Mr Dube had sent him an SMS offering to
sell him copper. He
professed his innocence and even offered to assist Col Espach to
locate Dube. After reading the SMS exchange,
Col Espach confiscated
his phone and then arrested him. He was detained from about 12h00 and
subsequently released on bail the
following day, 5 July 2014, at
about 13h00. As a result of the arrest, he engaged the services of a
legal representative. He incurred
legal expenses in the amount of
R7239 in respect of the bail proceedings. The appellant’s
version of events was not controverted.
[4]
Mr Mashapu testified that on the day of the incident, three men
entered the shop and
offered to sell scrap metal that was contained
in a bag. While he and a female shop assistant were in the process of
examining
the items that were brought to the shop by these men, Col
Espach entered the shop. He was dressed in civilian clothing. He
grabbed
one of the three men, identified himself as a police officer
and produced his appointment card. The three persons all managed to
flee. He maintained that C
ol
Espach entered the shop before he and his female colleague had had an
opportunity of inspecting the contents of the bag. At that
moment,
the contents of the bag had not yet been weighed and
no
transaction to purchase its contents had been entered into. He also
pointed out that at that stage, he bore no knowledge of the
SMS
exchanges between the appellant and Dube. According to Mr Mashapu,
the appellant had, at no stage, instructed him to buy or
take
possession of the items brought to the shop by the three men. He
further testified that after Col Espach had introduced himself
to
him, he called the appellant to apprise him of the situation. While
he was talking to the appellant, Col Espach took the phone
from him
and instructed the appellant to come to his shop, indicating that he
intended arresting him.
[5]
Although Mr Mashapu’s evidence was that he was not allowed to
purchase second-hand
copper, it was common cause that the appellant,
in the normal course of his business as a second-hand scrap metal
dealership, was
permitted to deal in all types of metals within the
precepts of the law. Mr Mashapu’s evidence regarding the
procedure followed
when a seller was offering to sell second hand
goods accorded with that of the appellant.
He
confirmed the procedures as set out by the appellant, commencing with
the assessment of the nature of the goods brought by the
seller and
culminating with the recordal of the information in the register and
the filing of a copy of the seller’s ID document.
He
explained that the metals usually brought to the shop for sale
consisted mostly of aluminium, radiators and stainless steel metal
sheets. He explained that sorting the material offered for sale was
important as different metals had varying prices. Whenever
someone
was selling various metals, the metal would first be sorted before
being weighed. I interpose to mention that to the extent
that Mr
Mashapu’s account of events was not challenged, it must be
accepted as correct.
[1]
[6]
Colonel Espach testified that on 4 July 2014 he was on duty and had
stopped his unmarked
vehicle at a petrol station when he saw two men
walking in the street carrying what seemed to be a very heavy bag.
The two men
were coming from the direction of some smallholdings in the area,
which was an area that was beset with
the
theft of copper cables, borehole shafts and transformers.
The
men were struggling to carry the bag. This fortified his suspicion
that the contents of the bag could be copper cables stolen
from the
industrial area. He decided to watch the movements of these persons
in the hope that they would lead him to the kingpin
who had created a
market for the theft of copper cables.
[7]
He observed a third man (who was later identified to him as Mr Dube)
approaching the
duo with a shopping trolley and noted that the heavy
bag was loaded on the trolley, whereafter the trio walked together in
the
direction of a second-hand metal dealership. He phoned his
colleagues, reported on his observations and asked for a back-up team
to be dispatched. He followed the trio and saw them entering a
second-hand metal dealership with the shopping trolley. Watching
from
the street while awaiting the arrival of the back-up team, he noticed
that the bag was taken out of the trolley and put on
a counter,
whereafter it was attended to by two shop attendants, who later
turned out to be Mr Mashapu and an elderly lady. He
realised that a
transaction was in progress but did not ascertain whether the
transaction was concluded because he was moving up
and down in the
street so that the back-up team could see him. He decided to enter
the shop to confront all the persons who were
involved in the
transaction, as he feared that the men in question would soon leave
the premises.
[8]
Upon entering the shop, he
produced
his appointment card, introduced himself and ordered everyone to
stand still. At that point, one of the two men who had
initially
carried the bag pushed him out of the way and the two of them headed
for the door. He grabbed one of them, but Mr Dube
loosened his grip
to help the man escape. He tried chasing the two men in the street,
but they outran him. In the intervening period,
Mr Dube also fled the
scene.
[9]
He stated that once he was back at the appellant’s shop, he
ordered everyone
to remain inside until the backup team arrived.
He
learnt that the person behind the counter, Mr Mashapu, was the
manager of the business.
He
noticed that the bag previously carried by the suspects who had fled
was placed on the counter and that the contents thereof
had been put
in a sack belonging to the shop. Upon the arrival of his back-up
colleagues, it was discovered that the contents of
the bag were
copper cables that had been cut into pieces. The pieces of copper
were weighed and found to weigh 29.8 kg.
He
asked Mr Mashapu to phone the owner of the business. The appellant
subsequently arrived at the premises and introduced himself
as the
owner of the dealership.
[10]
Upon the appellant's arrival, he (Col Espach) requested to see his
cellular phone. Without asking
for the appellant’s permission,
he looked at the messages on the appellant’s cellular phone. He
discovered that the
appellant had had an SMS exchange with Mr Dube,
in terms of which Mr Dube had offered to sell him copper. The SMS
exchange revealed
that in response to the appellant’s enquiry
about the weight of the copper, Mr Dube had informed him that it
weighed 20kg.
The appellant had then told Mr Dube to take it to his
shop. The SMS exchange led him to suspect that the appellant was
complicit
in the theft of the copper cables that were brought to his
shop. On the basis of that suspicion, he decided to
arrest
the appellant without a warrant and took him to the police station,
where he was kept in detention until he was released
on bail on the
afternoon of 5 July 2014. The appellant furnished Mr
Dube’s
address to the police and he was later arrested.
[11]
Under cross examination, Col Espach conceded that the appellant was,
as a second-hand dealer,
allowed to buy copper. He stated that his
concern was that the appellant had been contacted directly by the
seller ‘as if
it is a special copper that needs to be delivered
that side’. He also conceded that even though he had
confiscated the appellant’s
phone, a transcript of the SMS
exchange was not available to be handed in as evidence. His evidence
that Mr Dube had told the appellant
that the copper weighed 20kg thus
remained unsubstantiated.
[12]
Colonel Usiba was called as the respondents’ witness. He
confirmed that he was part of
the back-up police team summoned to the
scene by Col Espach. He stated that upon his arrival at the shop, he
and his colleagues
were shown a mealie meal sack containing copper
cables. The copper cables were on the counter, near the scale.
Furthermore, he
confirmed having seen the SMS exchange between the
appellant and Mr Dube in relation to the copper that Mr Dube was
asked to bring
to the shop. Under cross-examination, he conceded that
one could not easily tell that the copper brought to the shop was
burnt.
None of the companies approached during police investigations
were able to identify the copper as their property. The investigating
officer, Mr Rasebotsa, also testified as the respondents’
witness. Nothing turns on his evidence. Suffice to mention that
he
stated that, from his point of view, the proceedings were still
pending.
[13]
It is common cause that the appellant, Mr Dube and a third co-accused
appeared before the magistrate's
court in Tzaneen on a charge of
possession of property suspected to be stolen in contravention of s
36
[2]
of Act 62 of 1955. It
appears that the charges were then provisionally withdrawn on 17
November 2014, apparently to allow for the
re-arrest of Mr Dube, who
had absconded whilst out on bail. The trial commenced on 5 September
2016 and was concluded on 24 March
2017.
Legal
principles applicable to an arrest without a warrant
[14]
In their plea, the respondents admitted the appellant’s arrest
without a warrant and his
subsequent detention. Their justification
of the arrest was simply set out as follows: ‘… the
arrest was lawful as
the Plaintiff was arrested for possession of
suspected stolen property.’ I
t
is trite that the arrest and detention of any person are
prima
facie
wrongful,
as they amount to a deprivation of a person's liberty. Section 12 of
the Constitution guarantees every person the right
not to be deprived
of freedom arbitrarily or without just cause and not to be detained
without trial.
In
Minister
of Safety and Security v Van Niekerk
,
[3]
the Constitutional Court stated as follows:
’
17.
. . . [T]he constitutionality of an arrest will almost invariably be
heavily dependent on its factual circumstances.
…
20.
[I]t would not be desirable for this Court to attempt in an abstract
way divorced from the facts of this case, to articulate
a blanket,
all-purpose test for constitutionally acceptable arrests.’
[15]
As regards the onus to prove the lawfulness of an arrest, the
Constitutional Court in
Mahlangu
and Another v Minister of Police
,
[4]
said:
‘
It
follows that in a claim based on the interference with the
constitutional right not to be deprived of one’s physical
liberty,
all that the plaintiff has to establish is that the
interference has occurred. Once this has been established, the
deprivation
is prima facie unlawful and the defendant bears an onus
to prove that there was a justification for the interference.’
In
this matter, the arrest was not in dispute; it was therefore common
cause that the respondent bore the onus to prove the lawfulness
thereof.
[16]
Section 40 of the CPA provides, in relevant parts, as follows:
‘
40
Arrest by peace officer without a warrant
(1)
A peace officer may without a warrant arrest any person-
…
(b)
whom he reasonably suspects of having
committed an offence referred in Schedule 1, other than the offence
of escaping from lawful
custody.
. . .
(e)
who is found in possession of anything
which the peace officer reasonably suspects to be stolen property or
property dishonestly
obtained, and whom the peace officer reasonably
suspects of having committed an offence with respect to such thing.
’
[17]
The respondents did not, in their plea, specify the subsection of s
40 on which they relied for
their justification of the appellant’s
arrest. The trial court proceeded on the premise that reliance was
placed on s 40(1)
(b)
of the Criminal Procedure Act. The high court, traversed both s
40(1)
(b)
,
on the basis of the charge preferred against the appellant being
listed in Schedule 1 of the CPA, and s 40(1)
(e)
,
which provides that ‘a peace officer may without warrant arrest
any person who is found in possession of anything which
the peace
officer reasonably suspects to be stolen property or property
dishonestly obtained, and whom the peace officer reasonably
suspects
of having committed an offence with respect to such thing’.
[18]
In
Duncan
v Minister of Law and Order for the Republic of South Africa
(Duncan)
[5]
it was held that an arrest without a warrant would be justified as
envisaged in s 40(1)
(b)
of the CPA if the following jurisdictional facts were present: (i)
the arrestor must be a peace-officer; (ii) the arrestor
must entertain a suspicion; (iii) the suspicion must be
that the suspect (the arrestee) committed an offence referred
to in
Schedule 1; and (iv) the suspicion must rest on reasonable grounds.
The
learned Judge of Appeal stated further that ‘If the
jurisdictional requirements are satisfied, the peace officer may
invoke the power conferred by the subsection; ie, he [or she] may
arrest the suspect. In other words, he [or she] then has a discretion
as to whether or not to exercise that power (cf
Holgate-Mohamed
v Duke
[1948]
1 All SA ER 1054 (HL) at 1057). No doubt the discretion must be
properly exercised. But the grounds on which the exercise
of such a
discretion can be questioned are narrowly circumscribed.’
[19]
Applying the same reasoning as in
Duncan
,
the jurisdictional factors that have to be proved by a defendant who
relies on s 40(1)(e) as a defence are: (i) the arrestor must
be a
peace officer; (ii) the suspect must be found in possession of
property; (iii) the arrestor must entertain a suspicion that
the
property has been stolen and illegally obtained; (iv) the arrestor
must entertain a suspicion that a person found in possession
of the
property has committed an offence in respect of the property; and (v)
the arrestor’s suspicion must rest on reasonable
grounds. It is
trite that once the jurisdictional facts for an arrest in terms of
any one of the paragraphs of s 40(1) are present,
a discretion
arises.
[6]
[20]
The following remarks made by the court in
Mabona
and Another v Minister of Law and Order and Others
(Mabona)
[7]
in
relation to the issue of a reasonable suspicion are apposite:
‘
The
test of whether a suspicion is reasonably entertained
within the meaning of s 40 (1)
(b)
is objective. . .
. 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.’
These
remarks are,
mutatis mutandis
, equally apposite in relation to
the provisions of s 40(1)
(e)
.
Application
of the legal principles to the facts
[21]
The fundamental question is whether Col Espach, prior to the arrest,
reasonably suspected the
appellant of having committed an offence in
respect of the copper cables brought to his shop by the three men.
The trial court
and the high court found that he did.
The
ratio of the decision of the high court can be found in the following
passage:
‘
On
the probabilities, [Mr Mashapu] would not have started the process of
measurement, before the contents of the bag were ascertained.
The
measurement of the copper presupposed an important end-stage, receipt
of the copper on behalf of the shop. Colonel Espach intervened
at the
stage when the copper was weighed, consistent with the laid down
procedure in the shop. What remained was payment for the
copper to
the sellers and for the relevant details to be entered in the
register.
Objectively
considered, the arresting police officer in this matter had
reasonable grounds for his suspicion and exercised his discretion
accordingly. His suspicion that the appellant was involved in the
sale of illicit copper was completely justified by the peculiar
circumstances. In this case, the appellant, on his version, told a
former employee to deliver copper to his shop. On his version,
the
appellant suspected that the copper was stolen.
Prima
facie,
the appellant exercised
constructive control of the copper through his employee, [Mr
Mashapu]. That the copper was stolen is fortified
by the fact that
those who brought it, including the former employee, Dube, are at
large, which gave rise to the authorization
of a warrant of arrest
and the temporary withdrawal of the charges.’
[22]
The difficulty for the respondents is that none of the findings in
the passage above are borne
out by any evidence at all. The appellant
never conceded that the contents of the bag were stolen property. The
high court therefore
erred in finding that the appellant had made
such a concession. It seems to me that the high court considered
certain parts of
the evidence in isolation instead of analysing the
evidence in its entirety.
[8]
It
failed to take into account that, by Col Espach’s own
admission, at the time when he was standing in the street, he was
not
focused solely on what was happening in the shop because he was also
on the lookout for the expected arrival of the back-up
team. A
significant concession which does not seem to have been taken into
account by the high court is that Col Espach admitted
that he entered
the shop before the transaction was finalised.
[23]
There can be no debate that a buyer dealing with second-hand goods
would first want to see the
goods offered to him before deciding
whether or not to purchase them. The appellant's and Mr Mashapu’s
testimony about the
protocols followed at the appellant’s shop
are plausible. Notably, Mr Mashapu’s evidence that Col Espach
entered while
he was busy inspecting the contents of the bag was not
disputed. Similarly, it was not put to him that by the time Col
Espach entered
the shop, he (Mr Mashapu) had already weighed the
copper cables. Under such circumstances, the high court’s
findings that
‘[t]he
measurement
of the copper presupposed an important end-stage, receipt of the
copper on behalf of the shop’ and that ‘Col
Espach
intervened at the stage when the copper was weighed’ are
clearly erroneous.
[24]
It is clear from Col Espach’s own version that he acted hastily
and pounced prematurely,
as the transaction had not yet been
concluded. In terms of the Second-Hand Goods Act, a buyer must
inspect the goods and satisfy
himself or herself that the seller is
in lawful possession of the goods in question before buying them. The
second-hand dealer
must also record the details of the transaction in
a register. The Act further imposes a duty on the second-hand dealer
to report
any suspicious items to the police and obtain an
acknowledgment that he or she made a report. Mr Mashapu’s
evidence was that
Col Espach entered the shop before he had had an
opportunity to follow the protocols set out in the Act. That being
the case, his
compliance with that Act was interrupted by Col Espach
at the stage when he was determining the contents of the bag. He can
therefore
not be faulted for the absence of the relevant
documentation.
[25]
It is significant that on Col Espach’s own evidence, money had
not yet exchanged hands.
This must be the reason why the three men
were still in the shop when Col Espach arrived at the scene. The
persons who brought
the copper cables to the appellant’s shop
fled as soon as Col Espach had introduced himself. It could therefore
not be established
whether Mr Mashapu would have purchased the
contents of the bag or not. Objectively considered, a reasonable
police officer who
was privy to the same information as Col Espach
would not have reasonably suspected that the appellant was complicit
in the three
suspects’ possession of the copper cables. There
was simply no basis for such a suspicion.
[26]
As regards the SMS exchange, both the trial court and the high court
lost the context of the
circumstances under which the SMS text
messages between the appellant and Mr Dube were exchanged. The
explanation given by the
appellant for the SMS exchange was
reasonable. This is more so the case because the appellant is the one
who volunteered the information
pertaining to the SMS exchange
between himself and Mr Dube, to Col Espach. The undisputed evidence
was that Mr Dube had sent the
appellant a text message requesting him
to phone him and the appellant had ignored that message because he
did not want to talk
to him. The appellant’s evidence that he
did not want to speak to Mr Dube because he had dismissed him over
theft is a plausible
version that was confirmed by Mr Mashapu. Even
on Col Espach’s version, Mr Dube was merely told to take the
copper to the
shop. Nothing in Col Espach’s evidence suggested
that the SMS exchange was incriminatory. There was no basis for the
trial
court’s conclusion that a transaction for the sale of
copper was concluded via SMS.
[27]
The respondents’ pleaded case was that the appellant had been
found in possession of property
suspected to be stolen. According to
Snyman, a person is
‘
found
in possession’ within the contemplation of s 36 of Act 62 of
1955 if he or she has personal and direct control over
the goods
suspected of having been stolen; it is not sufficient that he
exercises control through an agent or a subordinate.
[9]
The high court found that the appellant had exercised constructive
control of the copper cables through Mr Mashapu. Relying on
an obiter
statement in
S
v
Wilson
(Wilson)
,
[10]
the high court reasoned that the appellant was in possession of the
copper cables even though he was not physically present at
the shop
when they were found. In that case, possession of dagga was imputed
to the appellant as the owner of the premises where
dagga was found
in a locked storage area in the appellant’s absence.
[28]
Reliance
on the
Wilson
judgment
is misplaced, in my view, as this
case is distinguishable both on the facts and the law. First, the
charge in that matter related
to the possession of dagga and not the
possession of good suspected to be stolen as set out in s 36 of Act
62 of 1955; second,
the court expressly stated that it was not
necessary for it to decide the precise meaning of the expression
‘found in possession’
as used in s 36 of Act 62 of 1955;
third, the court accepted that the owner of the property had
exercised a measure of control
over the illicit goods; fourth, in
coming to its conclusion that the appellant in that matter was in
possession of the dagga, the
court
inter alia
took into account that the appellant had, at the time when the dagga
was found, admitted that it was his property.
[29]
In this matter, the appellant had never been shown to have exercised
any control over the illicit
goods. Contrary to the high court’s
finding, he never admitted to knowing that the copper cables were
stolen. On Col Espach’s
own evidence, the bag containing the
copper cables was still on the counter when he entered the shop and
had not been locked away.
Under those circumstances, I am not
persuaded that Mr Mashapu ever assumed possession of the copper
cables in question. Mr Mashapu
categorically stated that the
appellant had not, prior to the three men’s arrival at the
shop, instructed him to purchase
or take possession of the contents
of their bag. Therefore, there can be no question of Mr Mashapu
having accepted the copper cables
as an agent on behalf of the
appellant or the appellant having exercised constructive control of
the copper through Mr Mashapu.
It would therefore be wrong to impute
unlawful possession of the copper in question to the appellant.
Insofar as the high court
found this to have been the case, it erred.
[30]
On a holistic consideration of all the evidence, the circumstances
under which the goods suspected
to be stolen ended up at the
appellant’s shop were in part within the knowledge of Col
Espach as he had witnessed their conveyance
to the appellant’s
shop. Furthermore, the appellant proffered a reasonable explanation
regarding the circumstances surrounding
his SMS exchange with Mr
Dube. Armed with all of that information, any further suspicion on
the part of Col Espach could only have
fallen within the category of
a ‘flighty or arbitrary, and not a reasonable suspicion’.
[11]
To the extent that Col Espach continued to harbour a suspicion
notwithstanding the plausible explanation given by the appellant,
his
suspicion did not pass the test laid down in
Mabona
and was therefore not reasonable.
[31]
Another significant consideration is that the respondents did not
dispute the evidence that when
Col Espach phoned the appellant, he
told him that he must come to the shop so that he could arrest him.
Bearing in mind his evidence
that he wanted to arrest the ‘kingpin’
who ordered stolen goods and created a market therefor’, the
ineluctable
inference is that Col Espach had made up his mind to
arrest the appellant long before he even arrived on the premises and
did not
apply his mind to the appellant’s explanation
pertaining to the SMS exchange.
[32]
For all the reasons mentioned above, I am of the view that a police
officer possessed of all
the information, including the SMS exchange
and the explanation therefor, would not have reasonably suspected
that the appellant
was complicit in the unlawful possession of the
copper cables. This finding is dispositive on the issue of liability,
as one of
the jurisdictional factors that render an arrest without a
warrant lawful (a reasonable suspicion), is lacking. Put differently,
the question whether the arrestor exercised a discretion to effect an
arrest without a warrant only comes up for consideration
once all the
jurisdictional factors have been established. There is therefore no
need for this Court to address itself to the enquiry
as to whether or
not Col Espach had exercised any discretion prior to effecting the
arrest.
[12]
As it was common
cause that he was acting within the course and scope of his
employment with the first respondent at the time when
the appellant
was arrested, it follows that the first respondent was vicariously
liable for
Col
Espach's wrongful acts.
The
determination of quantum
[33]
It is common cause that the unlawful arrest led to the appellant’s
detention for a period
of approximately one day. The trial court and
the high court did not consider the issue of quantum as they found
that the appellant’s
arrest and detention were lawful. Although
awards of damages made in previous decisions may serve as a guide in
the consideration
of an appropriate amount of damages for the injury
resulting from unlawful arrest and detention, such awards are not to
be followed
slavishly, for every case must be determined on its
facts.
[13]
It must be borne in
mind that the primary purpose of an award of damages for unlawful
arrest and detention is not to enrich the
aggrieved party but to
offer him or her some solatium for their injured feelings.
[34]
In
Kammies
v Minister of Police and Another
,
[14]
the plaintiff was detained for three days and awarded damages in the
sums of R70 000. In
Rahim
and Others v Minister of Home Affairs
,
[15]
this Court awarded damages ranging from R3 000 for four days unlawful
detention and R20 000 for 30 days to R25 000 for
35 days’
unlawful detention. In
De
Klerk v Minister of Police
,
[16]
the Constitutional Court considered an amount of R300 000 for
approximately seven days’ detention to be fair and reasonable.
In
Mahlangu
and Another v Minister of Police
,
[17]
the Constitutional Court awarded damages in the amount of R500 000
for an unlawful detention that lasted eight months and
ten days.
Having considered all the facts of this case, including the age of
the appellant, the circumstances of his arrest, the
relatively short
duration of the detention, I consider an amount of R70 000 to be
an appropriate award of damages for his
unlawful arrest and
detention. I also consider the amount of R7239, which was paid as
legal costs for the bail proceedings, to
be fair and reasonable.
[35]
As regards costs, there is no reason to depart from the ordinary rule
that costs follow the result.
Order
[36]
In the result, the following order is granted:
1
The appeal is upheld with costs.
2
The order of the high court is set aside and
replaced with the following:
‘
1
The appeal is upheld with costs.
2
The order of the Magistrates’ Court, Tzaneen, is
set aside and
replaced with the following:
“
(a)
The first defendant is ordered to pay R70 000 as general damages to
the plaintiff.
(b)
The first defendant is ordered to pay R7239.
(c)
The amounts in paragraphs (a) and (b) above shall
bear interest at the prescribed rate from date of the judgment of the
Magistrates’
Court, Tzaneen, being 11 January 2018 to date of
payment.
(d)
The first defendant is ordered to pay the
plaintiff’s costs of suit.”’
M
B MOLEMELA
JUDGE
OF APPEAL
Appearances
For
appellant:
C Zeitsman
Instructed
by :
Johan Steyn Attorneys, Tzaneen
Symington De Kok,
Bloemfontein
For
respondents:
M E Ngoetjana
Instructed
by:
State Attorney, Polokwane
State Attorney,
Bloemfontein
[1]
President
of the Republic of South Africa and Others v South African Rugby
Football Union and Others
[199] ZACC 11;
1999 (10) BCLR 1059
;
2000 (1) SA 1
(CC) para 62.
[2]
Section 36
of Act 62 of 1955 provides:
‘
Failure
to give a satisfactory account of possession of goods
- Any
person who is found in possession of any goods ... in
regard to which there is reasonable suspicion
that they
have been stolen and is unable to give a satisfactory
account of such possession, shall be guilty of an offence
and liable
on conviction to the penalties which may be imposed on a conviction
of theft.'
[3]
Minister of Safety and
Security v Van Niekerk
2008(1) SACR 56 (CC);
2007 (10) BCLR 1102
(CC) paras 17 and 20.
[4]
Mahlangu and Another v
Minister of Police
[2021] ZACC 10
;
2021 (7) BCLR 698
(CC) para 32.
[5]
Duncan v Minister of
Law and Order
for
the Republic of South Africa
(Duncan)
[1986] ZASCA 24
;
[1986] 2 All SA 241
(A); 1986(2) SA 805 (A) at 818F-H.
[6]
Ibid.; also see
Minister
of Safety and Security v Sekhoto
and Another
[2010] ZASCA 141
;
2011 (5) SA 367
(SCA) para 28.
[7]
Mabona
and Another v Minister of Law and Order and Others
1988(2)
SA 654 (SCE) at 658E-G.
[8]
S v Shilakwe
2012
(1) SACR 16
(SCA) at 20, para 11.
[9]
CR Snyman, Criminal Law, 5
th
ed at 525.
[10]
S v Wilson
1962 (2) SA 619 (A).
[11]
Mabona
and Another v Minister of Law and Order and Others
,
footnote 7 above
at
658H.
[12]
See
Minister of Safety
and Security v Sekhoto
and Another
[2010] ZASCA 141
;
2011 (5) SA 367
(SCA) para 28.
[13]
Minister of Safety and
Security v Seymour
2006 (6) SA 320
(SCA) para 17;
Rudolph
and Others v Minister of Safety and Security and Another
2009 (5) SA 94
(SCA) para 26-29.
[14]
Kammies v Minister of
Police and Another
[2017] ZAECPEHC 25.
[15]
Rahim and Others v
Minister of Home Affairs
[2015] 3 All SA (SCA) paras 27 and 28.
[16]
De Klerk v Minister of
Police
[2019] ZACC
32
;
2019 (12) BCLR 1425
;
2021 (4) SA 585
(CC).
[17]
Mahlangu and Another v
Minister of Police
[2021] ZACC 10.