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[2014] ZAGPPHC 52
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Baasden v Minister of Safety And Security (11874/11) [2014] ZAGPPHC 52; 2014 (2) SACR 163 (GP) (28 February 2014)
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REPUBLIC OF SOUTH
AFRICA
NORTH GAUTENG
HIGH COURT
PRETORIA
(REPUBLIC OF
SOUTH AFRICA)
Case
no: 11874/11
DATE:
28 FEBRUARY 2014
In the matter
between:
LEON WOUTER
BAASDEN
..........................................................................
PLAINTIFF
AND
THE MINISTER OF
SAFETY AND SECURITY
.......................................
DEFENDANT
JUDGMENT
BAQWA J
[1] In this matter
the plaintiff, Mr Leon Wouter Baasden, an adult male residing at V……
L… M…... No
1…., W…. Street, R….,
is suing the defendant, who is the Minister of Safety and Security
for wrongful arrest
and detention as a result of which he suffered
damages in the sum of R420,520,00.
[2] The defendant is
being sued in his capacity as the Head of the South African Police
Services.
[3] The action
arises out of the detention of the plaintiff on 14 August 2010 at OR
Tambo International Airt\port, Johannesburg
allegedly without a
warrant by members of the South African Police Services.
[4] Defendant has
pleaded to plaintiff’s particulars of claim admitting the place
and time of arrest and the fact that at
the relevant time the police
were acting in their capacity as members of the Police Services.
[5] Defendant denies
that the arrest and detention of plaintiff was unlawful and pleads
that Detective Sergeant Mashile who is a
Peace Officer as defined in
section 1
of the
Criminal Procedure Act 51 of 1977
arrested the
plaintiff and that he was doing so on the strength of a warrant of
arrest issued against the plaintiff in Garsfontein
Cas number
485/07/2002.
[6] The defendant
called the evidence of three witnesses. The first witness was Warrant
Officer Cloete who was the initial Investigating
Officer in a case
which had been opened by Wesbank against the plaintiff in terms of
the Hire Purchase Act. In that matter it was
alleged that the
plaintiff had entered into an agreement with Wesbank after which he
disappeared without paying for the goods in
question, namely a motor
vehicle.
[7] Cloete testified
how he visited one of the addresses reflected in the Instalment Sale
Agreement namely S…. P….
2…... W…...
Pretoria to look for the plaintiff. He was informed that plaintiff no
longer lived there after which
he applied on form J50 for the issuing
of a warrant of arrest which was duly granted.
[8] He thereafter
applied on form SAPS 55 for circulation of the name of the plaintiff
as a ‘wanted’ person at the Local
Criminal Records Centre
(LCRC). This was duly effected and the docket was stored away to
await the result of the circulation.
[9] On the day of
the arrest, namely 14 August 2010 plaintiff was an incoming passenger
from New Zealand when his passport triggered
a response in a computer
of the Movement Control System indicating that something was amiss.
This led to plaintiff’s arrest
by Sergeant Mashile who
confirmed telephonically with Captain Makhubele of Garsfontein Police
Station that there was still a valid
warrant in the docket for the
arrest of plaintiff. As a result, plaintiff was arrested and
temporarily detained at OR Tambo after
which he was transferred to
Garsfontein Police Station for further detention. He was detained
there until released after an urgent
application to the high Court at
about 17h00 on 15 August 2010.
[10] Plaintiff also
gave evidence and the sequence of events as narrated by him largely
coincides with the version given by defendant’s
witnesses.
[11] He also called
the evidence of Advocates Gerber and Neukircher S.C. Both these
advocates testified to what can be summarised
as lack of co-operation
experienced at Garsfontein Police Station from some of the officials
who included Captain Makhubele and
the standby prosecutor, One Lebo
Mokalaka. After a series of events, during which the advocates were
trying to obtain the release
of plaintiff, bailed was denied by the
standby prosecutor.
[12] Advocate
Neukircher S.C thereafter brought a bail appeal on an urgent basis
before my brother Justice Mavundla. Before the
matter could be
finally adjudicated, the prosecutor conceded bail in the some of
R2,000.00 leading to the release of the plaintiff.
[13] The critical
difference between the plaintiff and defendant’s versions
concerns what happened post the arrest and the
information given to
him at that time by the members who arrested and detained him. He
testified that he was neither informed the
reason for his arrest nor
shown the warrant of arrest in terms of which he was detained. Whilst
Sergeant Mashile admits that he
did not show plaintiff any warrant,
he states that he informed him about the existence of the warrant and
that it was in regard
to the crime of theft. Similarly, Captain
Makhubele states that he duly informed plaintiff that he was arrested
for the crime of
alienation of goods which amounted to theft and that
he showed him the warrant of arrest.
[14] As stated
above, defendant claims that the arrest was lawful because of the
existence of a validly issued warrant of arrest.
This is the crux of
defendant’s defence. What is amazing however is that whilst
there are documents emanating from the relevant
docket which have
been referred to during the evidence led by the defendant, there is
no warrant of arrest of the plaintiff. Warrant
Officer Cloete
testified that after completing the proforma J50 form for the issue
of the warrant of arrest he also completed the
SAPS 55 for
circulation for ‘wanted’ person. The originals of both
these documents were then forwarded to the LCRC
for processing.
Cloete also
testified that in the event of a warrant of arrest disappearing,
another warrant has to be applied for. What this means
is that the
appearance of the information regarding the existence of a warrant of
arrest on any other document or electronic data
or system does not
constitute a warrant but merely evidences that a warrant had been
issued. A warrant must exist in real terms
as a document that can be
exhibited when necessary hence the need to re-apply for one when the
original goes missing.
[15] While Captain
Makhubele testified that the warrant was taken to court with the
docket, this does not in my view explain the
absence of a copy of the
warrant of arrest on which the defendant has relied for his defence.
The Local Criminal Records Centre
is what it says it is, namely a
place where criminal records are kept. One would imagine that records
of documents submitted, such
as warrants of arrest are also kept and
stored at the LCRC. Yet no one has been called by the defendant to
testify in this regard,
[16] Right upfront,
defendant admitted that he bears the onus of proving the lawfulness
of the arrest. Prima facie, he has done
so by proving the existence
of Cas number 485/7/02 and the relevant docket. Whilst Warrant
Officer Cloete and Captain Makhubele
testify about the existence of a
warrant of arrest none has been included in the documents before me.
It is not for me to infer
the existence of a warrant of arrest or to
assume that it did exists. There has been no explanation why the
assistance of the LCRC
was not sought to furnish even a copy of the
warrant in question. It should have been not just a logical but the
easiest thing
for the defendant to access this critical detail in
order to prove its case. Proof on a balance of probabilities by the
defendant
cannot be achieved by drawing inferences in favour of his
case. It has to be done on the weight of evidence presented by the
defendant.
This, the defendant has failed to do. I accordingly find
that defendant has failed to prove the lawfulness of the arrest.
[17] Regarding
quantum of plaintiff’s damages, it is common cause that
plaintiff was detained for one night and in this regard
I have to be
guided not only by the personal circumstances of the plaintiff but
also by the relevant case law.
The Constitution
[18] In the matter
of Minister of Safety and Security v Sekhoto (131/10)
[2010] ZASCA
141
(19 November 2010) Harms (DP) stated as follows:
‘’16 The
Bill of Rights guarantees the right of security and freedom of the
person which includes the right ‘not
to be deprived of freedom
arbitrarily or without just cause’(s12(1)(a)). This right
although previously not entrenched, is
not something new in our law.
That is why, as stated at the outset of this judgment, any
deprivation of freedom has always been
regarded as prima facie
unlawful and required justification by the arresting officer. This
explains the rule that a plaintiff need
only allege the deprivation
of his freedom and require of the defendant to plead and prove
justification.’’
[19] In casu it is
common cause that plaintiff was deprived of his freedom from the 14th
to the afternoon of 15 August 2010. I have
found that though
defendant pleaded justification he has failed to prove such
justification on a balance of probabilities. This
entitles plaintiff
to compensation for the damages suffered.
[20] Whilst it is
useful to have regard to awards made in previous cases, regard must
be had to the facts of each case to determine
the quantum of damages.
[21] The plaintiff
was detained from the afternoon of 14 August 2010 and released on the
afternoon of 15 August 2010, a period of
approximately twenty four
hours. Needless to say, deprivation of freedom is a humiliating
experience to any individual. Mr Baasden
is a professional landscaper
and he incurred legal expenses in the process of procuring his
freedom by employing the services of
Advocate Neukircher.
[22] As Van Rensburg
J said in Thandani v Minister of Law and Order 1999(1)SA 702(E) at
707B
‘’…Sight
must not be lost of the fact that the liberty of the individual is
one of the fundamental rights of
a men in a free society which should
be zealously 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 the freedom and rights of
an individual.’’
See also in this
regard
22.1. Olivier v
Minister of Safety and Security 2008(2) SACR 387
22.2. Seymore v
Minister of Safety and Security 2006(5) SA495
22.3. Gellman v
Minister of Safety and Security 2008(1) SACR 446
[23] In the result,
judgment is given in favour of the plaintiff and the following order
is made:
23.1. In regard to
the wrongful arrest and unlawful detention the defendant shall pay
the plaintiff the sum of R120,000.00 with
costs which shall include
the costs incurred on 24 August 2012.
23.2. In regard to
the legal expenses, defendant shall pay the plaintiff the sum of
R20,520.00.
S.A.M BAQWA
(JUDGE OF THE
HIGH COURT)
Counsel for the
plaintiff: Adv M Olivier
Instructed
by: De Meyer Attorneys
Counsel for the
respondent: Adv M.S Phaswane
Instructed
by: The State Attorney