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[2015] ZAGPPHC 524
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Westhuizen v Minister of Police and Another (30124/2013) [2015] ZAGPPHC 524 (20 May 2015)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO: 30124/2013
DATE:
20 MAY 2015
In the matter
between:
MICHELLE VAN DER
WESTHUIZEN
...................................................................................
Plaintiff
And
MINISTER OF
POLICE
................................................................................................
First
Defendant
MINISTER OF
EDUCATION
...................................................................................
Second
Defendant
JUDGMENT
NKOSI AJ
A. INTRODUCTION
[1] The plaintiff is
Michelle van Der Westhuisen, a major female travel agent who conducts
business as Select Resorts who sues the
first defendant for her
unlawful arrest and detention.
[2] The plaintiff
withdrew her claim against the second defendant and it is not
necessary for the court to further concern iL^elf
with the claim for
malicious proceedings, which was against the second defendant.
[3] At the
commencement of the trial, the plaintiff and the first defendant
agreed that the merits and quantum should be separated
as provided
for in terms of Rule 33(4) of the Uniform! Rules of Court and the
court made an order to that effect. This order is
hereby withdrawn
and retracted vide paragraphs 57 and 58 infra.
B. THE TRIAL
[4] The allegations
in the plaintiff's particulars of claim are set out as follows:
4.1 Paragraph 4 -
the plaintiff alleges that, on 24 March 2011 at Pinetown, members of
SAPS arrested her without a warrant on a
charge of fraud;
4.2 Paragraph 5 -
the aforesaid members of the SAPS were acting in the course and scope
of their employment with the first defendant;
4.3 Paragraphs 6 and
7 - the plaintiff was wrongfully arrested without any reasonable
suspicion for justifying the arrest and she
was detained at the
Phoenix Police
Station and thereafter the Bronkhorstspruit Police Station on the
insistence of the aforesaid policemen:
4.4 Paragraph 9 -
the plaintiff alleges that the aforesaid members of the SAPS had a
duty to take cognisance of the following facts
which were explained
to them;.
4.4.1 that there was
no objective evidence to justify the plaintiff's arrest;
4.4.2 that there was
no reasonable suspicion for justifying the arrest;
4.4.3 that the
plaintiff had conducted the joint inspection with the complainant
pertaining to the accommodation;
4.4.4 that the
plaintiff previously arranged accommodation for the Ekangala School
with success;
4.4.5 that the n
ambers of the Ekangala School had concluded an agreement with the
plaintiff;
4.4.6 that the
complainant had only lodged a complaint several moths after the
alleged incident.
4.5 Paragraph 10 -
the plaintiff alleges that because of the aforegoing unlawful arrest
and detention, she suffered damages.
[5] The defence of
the first defendant as set out in its plea is summarised as follows:
5.1 Paragraph 4.1 -
the defendant admits that on or about 24 March 20111 at or near
Pinetown, members of the SAPS, acting within
the course and scope of
their employment arrested the plaintiff without a warrant;
5.2 Paragraph 4.2 -
the first defendant alleges that the plaintiff was arrested on a
reasonable suspic, jn that she had committed
the offence of fraud
which is a Schedule 1 offence.
5.3 Paragraph 4.3 -
the first defendant alleges that members of the SAPS, acted in terms
of Section 40(l)(b) of the Criminal Procedure
Act and lawfully
detained the plaintiff at the Phoenix Police Station under case
number 272/09/2010;
5.4 Paragraph 4.5 -
the first defendant alleges that the plaintiff was transferred to
Bronkhorstspruit Police Station, where she
was further detained under
case number: 272/09/2010.
[6] From the
pleadings, it is common cause between the parties that the plaintiff
was arrestedj and detained without a warrant.
[7] An arrest
without a warrant is lawful, inter alia, at the time of the arrest,
the arresting officer had a reasonable belief
that the plaintiff had
committed a Schedule 1 offence. The court had to decide whether
members of the SAPS had a reasonable belief
that the plaintiff had
committed a Schedule 1 offence based on the information available to
them before effecting the arrest.
C. THE EVIDENCE BY
THE PARTIES
[8] The plaintiff is
a travel agent, who operates as Select Resorts from an office
adjacent to her home in Pinetown, Kwazulu-Natal.
[9] The plaintiff
has a website that can be visited and viewed and it shows a number of
destinations throughout the Republic of
South Africa at which she can
arrange accommodation.
[10] During on or
about May , 010, the plaintiff was contacted by Joyce Mpai of the
Ekangala School to arrange accommodation for
a number of school
children and teachers who wished to secure accommodation at the
Durban Beach front.
[11] The plaintiff
managed to secure accommodation for 210 students and 40 teachers at
the Durban Beach front for the sum of R69
900-00.
[12] The
representatives of the Ekangala School were satisfied with the
accommodation and the price charged.
[13] A dispute arose
between the plaintiff and representatives of the Ekangala School
regarding the payment of a deposit of R20
000-00. This amount was not
in dispute.
[14] According to
the plaintiff, the representatives of the school had to pay a deposit
of 50% to secure the accommodation whereas,
according to the
representatives of the school, payment of the sum of the R20 000,00
would be sufficient to secure the accommodation
at the Durban Beach
front. It was her evidence that she does not discuss her commission
with client or was neither necessary to
discuss it as an agent.
[15] During the
beginning of August 2010, on a Sunday, evening, Joyce Mpai and the
Head Master of the Ekangala School and two police
officers from
Pinetown arrived at the plaintiff's residence and demand * j be shown
the accommodation, which the plaintiff had
arranged.
[16] The plaintiff
allowed them in and gathered all documents relating to the
accommjodation and showed the documents to the representatives
of the
accommodation and showed the documents to the representatives of the
school and the two police officers accompanying them.
[17] The details
furnished of the accommodation arranged by the plaintiff did not
satisfy the representatives of the school and
the police officers
accompanying them and they demanded to be shown the accommodation.
[18] The next day,
the plaintiff took the representatives of the school to the
accommodation at the Durban hotel at the beach front,
which she had
arranged. They went through the rooms where the teachers and the
children would stay.
[19] The plaintiff
and the representatives of the Ekangala School were unable to resolve
their differences regarding to what amount
had to be paid to secure
the accommodation.
[20] Eventually, the
plaintiff advised the representatives of the Ekangala School that
they had to djeal directly with the owner
of the hotel, which they
duly did.
[21] On 16 August
2010, a letter was sent by Cool Ideas 27 (Pty) Ltd t/a The Durban
Hotel to the plaintiff. The letter appears on
page 45 of Bundle A and
confirms the booking of the group of the Ekangala School, which
comprised of 40 adults and 210 leaners.
The plaintif
later forjwarded the
said letter to the representatives of the school and impressed upon
them to pay the balance of the deposit
to secure the accommodation.
[22] The
representatives of the school were unhappy with the fact that the
plaintiff earned a fee and proceeded to negotiate directly
with the
owner of the Durban Hotel and they stayed at the Durban Hotel.
[23] During 2011 and
after having stayed at the Durban Hotel, Mr Mpai of the Ekangala
School escalated the matter by filing a complaint
at the police
station in Bronkhorstspruit. The detail of the complaint was not made
known to court.
[24] She brought
detective constable, Moloto, "fully into the picture" and
told him everything that had happened. She
also gave him all the
documents which she had in her possession. This was after a docket
was opened and allocated to Detective
Constable Moloto.
[25] The documents
included correspondences exchanged between the plaintiff and the
school and in particular the letter from the
owner of the hotel
confirming that accommodation had arranged.
[26] On 24 March
2011, detective constable Moloto and a colleague drove down to
Pinetown to arrest the plaintiff for 'raud.
[27] They arrived at
the plaintiff's home at approximately 09h00 and said that they were
seeking accommodation. They were not dressed
in uniform and the
plaintiff invited them in.
[28] After the
plaintiff invited them in, they advised her that they were policemen
from Bronkhorstspruit who came to arrest her
for fraud.
[29] The plaintiff
fetched her file and she showed them all the documents and explained
the situation to the members of SAPS from
Bronkhorstspruit.
[30] The plaintiffs
explanation was not acceptable and she was told to get in the back of
the van and they drove to Durban Hotel.
[31] Upon arrival at
the hotel, the police officers from Bronkhorstspruit spoke to the
manager's son, Ryan, who explained to them
the situation and that
there has been a booking previously.
[32] She was taken
to the Phoenix Police Station where she was arrested and detained in
the holdfng cells until the early morning
of 25 March 2011.
[33] During the
early morning of 25 March 2011, detective constable, Moloto and his
colleague took the plaintiff to Bronkhorstspruit
Police Station where
she was detained further until she was taken to court later during
the day of 25 March 2011 and then released
on bail.
[34] The plaintiff
was deprived of her freedom and humiliated by her arrest. She broke
down in tears while giving testimony, having
to recall the ordeal
that she was put through.
D. CONSIDERATION
[35] When police
have arrested and detained a person without a warrant, the onus of
proving the lawfulness of the arrest rest on
the State. This is trite
law.
[36] The first
defendant can discharge the onus of proving the lawfulness of the
arrest if he can show that, at the time of the
arrest, the arresting
officer had a reasonable belief that the plaintiff had committed a
Schedule 1 offence, fraud in this case.
This is a requirements in
terms of section 40(l)(b) of the Criminal Procedure Act.
[37] In Duncan v
Minister of Law and Order
1986 (2) SA 805
(AD) at 814 D - E the
I
following was said:
"It was also
common cause that the question whether a peace officer reasonably
suspects 'a person having committed an offence
within the ambit of
Section 40(l)(b) of the Act is objectively justifiable and it seems
clear that the test is not whether a policeman
believes that he has a
reason to suspect, but whether, on an objective apf. oach, he in fact
has reasonable grounds for his suspicion'".
[38] Given the
circumstances of the arrest in this instance, it is trite that the
onus rests on the defence to justify an arrest.
[39] The only
question to be decided by the court deciding on the matter is whether
on objective reasonable grounds (in the sense
as referred to in the
Duncan case supra) existed at the time of arrest to support the
belief that the plaintiff had committed a
Schedule 1 offence.
[40] It was
submitted that the first defendant has failed to discharge the onus
of proving that the arresting officer, detective
constable Maloto had
a reasonable belief that the plaintiff had committed the offence of
fraud, which is Schedule 1 offence of
fraud: The commonly accepted
definition of fraud according to CR Snyman 4th ed: "Fraud is the
unlawful and intentional making
of a misrepresentation which causes
actual prejudice or which is potentially prejudicial to another".
[41] Detective
constable Moloto's own version was that he arrested the plaintiff for
fraud because firstly, she received the deposit
of R20 000,00 in her
personal bank account and secondly, because she was unable to furnish
any proof of the fact that she had made
a booking for the Ekangala
School at the Durban Hotel. This was despite the correspondence
between the plaintiff and the school
regarding the 50% deposit to
secure the booking.
[42] The grounds
advanced by detective constable Moloto to support of his belief that
the plaintiff had committed fraud were not
justifiable. He could not
provide proof of a personal bank account as he stated that the amount
of R20 000,00 deposit was made
to the Plaintiff
[43] The invoice
sent by the plaintiff to the representatives of the school had the
bank details of the plaintiff's business, Select
Resorts, on it. The
acceptable rate agreed upon between the parties also appeared from
the invoice. There was no misrepresentation
made to the
representatives of the school on the invoice.
[44] Moreover, the
letter in Bundle B page 45, sent by the owner of the Durban Hotel to
the plaintiff confirmed that the plaintiff
had made a booking on
behalf of the Ekangala School at the Durban Hotel.
[45] The aforesaid
correspondences clearly revealed that objectively speaking that the
grounds for supporting the reasonable belief
that the plaintiff had
committed the offence of fraud did not exist and therefor the arrest
and the detention of the plaintiff
was unlawful.
[46] Matters got
worse for detective constable Moloto when he testified that he had
arrested the plaintiff before making any enquiries
with the owner of
the Durban Hotel regarding the booking. It was his evidence that the
plaintiff acted as if she was the owner
of Hotel accommodation. This
could not be substantiated by him.
[47] He was also
forced to concede that the behaviour of the plaintiff was not
consistent with the behaviour someone who had just
committed fraud.
The plaintiff continued to write letters to the representatives of
the Ekangala School and even gave them her
home address. The
defendants' witnesses all confirmed that the plaintiffs home had a
board indicating Select Resort C.C as a private
residence and office.
[48] It is obvious
from the documents which detective constable Moloto had in his
possession that the dispute between the parties
related to
contractual dispute over payment of the sum of R20 000,00. That much
was revealed by the evidence of Ms Mpai when she
testified that the
school was happy with the total of R69 900,00 for the accommodation,
having paid the deposit to the plaintiff
in the amount of R20 000,00
and settled the balance of R49 900,00.
[49] All of the
aforesaid information was available to detective constable Moloto
before he arrested the plaintiff. The plaintiff's
testimony that she
was a booking agent and her deposits were obtainable on website was
not disputed. The issue of an agent was
confirmed in Wakefields Real
Estate v/s Aftree (666/10)
2011 ZASCA 160
citing Aida Real Estate v/s
Lipschitz 1971(3) SA 871 (W) with approved that: "in case an
agent had introduced a purchaser
who ultimately negotiated directly
with the seller in concluding a sale. The agent was nonetheless held
to be the effective cause
of the sale and therefore entitled to
commission. This is consistent with the situation of the present
case.
[50] When one
applied the objective test as enunciated in the case of Duncan v
Minister of Law and Order supra to the fac s of the
matter, it is
clear that, on an objective approach to the facts (having listened to
the versions of the representative parties
and having sight of all
the documents) there were no reasonable grounds to support the belief
that the plaintiff had committed
fraud and for arresting her.
[51] Detective
constable Moloto attempted to rely on certain statements, which were
allegedly available to him and were in the police
docket.
Page 14 of 18
[52] When he was
asked where the docket is, why it was not discovered and why he did
not bring it to court despite the fact that
a subpoena duces tecum
was served on the first defendant he had no answers.
[53] Detective
constable Moloto had no answers and it leaves the first defendant in
a position^ which the evidence of detective
constable Moloto was
based on nothing more than inadmissible hearsay evidence.
[54] The only
inference to be drawn from the persistence to refuse to make the
docket available despite the trial running over into
a second day is
that there are statements or documents in docket which the first
defendant does not want the court to see. This
was one amongst
others: that the relationship between the plaintiff and the Ekangala
Secondary School was a contractual one between
an agent (booking
agent) and the school through Miss Mpai was not disputed. The deposit
received was not denied and it was accounted
for on payment of agents
fees and R3000,00 securing the booking at Durban Hotel which the
school finally used for its accommodation
in Durban. There was no
evidence of cancellation of the oral agency arranged and Miss Mpai
confirmed that the plaintiff introduced
them to the hotel. Should
they have cancelled it they would have been entitled to claim their
deposit paid. This would be a civil
action and not a criminal
offence. The police through Moloto did not act like a bonus
paterfamilias officer but chose to effect
an arrest. There was no
reasonable suspicion of commission of an offence let alone of a
Schedule 1 offence. The school eventually
used the accommodation as
introduced by the plaintiff.
[55] It was further
submitted that, objectively speaking, a reasonable police officer
having been brought "fully into the picture"
would not have
formed the belief that the plaintiff had committjed the offence of
fraud and as such, the plaintiff's arrest without
a warrant was
unlawful. A reasonable police officer, after receiving a docket could
have approached the state prosecutor for a
decision whether to effect
arrest for prosecution. He did not do that.
[56] In the above
premise, it was submitted that the Honourable Court should enter
judgment in favour of the plaintiff as follows:
56.1 That the first
defendant is liable for all the proven damages of the plaintiff
arising from her unlawful arrest and detention
on 24 March 2011;
5j6.2 That the first
defendant be ordered to pay the plaintiff's costs occasioned in
respect of the merits component of the case;
[57] Though the
parties agreed to separate the merits and quantum from the beginning
the court is entitled to determine the exact
amount of compensation
to avoid unnecessary escalation of costs of further attendance, in
case the finding is in favour of the
plaintiff.
[58] The court is
guided by its own jurisprudence and previous similar relevant
precedents, which is hereby applied in this case.
The plaintiff was
detained for one day and the case was later withdrawn by the court.
This court is entitled to set a reasonable
compensation for such
unlawful arrest and detention.
E. CONCLUSION
[59] Ih the result I
am of the view that the plaintiff succeeded to prove its case on a
balance of probabilities and the 1st defendant's
defence is
dismissed.
F. ORDER
(a) The 1st
defendant is ordered to compensate the plaintiff in the amount of
R150 000,00 for the unlawful arrest and detention.
(b) The defendant is
further ordered to pay costs of this action on party and party scale
on the Regional Court scale.
VRS NKOSI
ACTING JUDGE THE
HIGH COURTT
Plaintiffs
Counsel : Adv Uys PL
Brief by:
Gildenhuys Malatjie Attorneys
1st defendant's
Counsel : Adv. MH Mhambi
Brief by : Office
of the State Attorney, Pretoria