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[2014] ZAGPPHC 160
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Dyssel v Minister of Safety and Security (28353/2012) [2014] ZAGPPHC 160 (20 March 2014)
IN THE HIGH COURT
OF SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
CASE
NO: 28353/2012
DATE:
20 MARCH 2014
In the matter
between:
LAETITIA
DYSSEL
........................................................................................
PLAINTIFF
And
THE MINISTER OF
SAFETY AND SECURITY
....................................
DEFENDANT
J U
D G M E N T
AVVAKOUMIDES, AJ
INTRODUCTION AND
THE ISSUES
1. The plaintiff
issued summons against the defendant for damages pursuant to the
arrest of the plaintiff by members of the South
African Police
Services (“the SAPS”) on 24 September 2010. Both the
merits and the quantum of damages are in dispute.
The plaintiff
claimed that she was unlawfully arrested. The defendant relied on the
provisions of the section 40 (h) of the Criminal
Procedure Act 51 of
1977 (“the Act”) as justification for the arrest. It is
common cause that the arrest took place
without a warrant of arrest.
In terms of the docket the charge on which the plaintiff was
arrested, is dealing in liquor without
a license.
2. It was agreed
between the parties that the defendant would bear the duty to begin
and onus of proof that the arrest was lawful.
It is trite that the
onus rests on a defendant to justify an arrest. As Rabie CJ explained
in Minister of Law and Order and Others
v Hurley and Another Minister
of Law and Order and Others v Hurley and Another
1986 (3) SA 568
(A)
at 589E – F: “An arrest constitutes an interference with
the liberty of the individual concerned, and it therefore
seems fair
and just to require that the person who arrested or caused the arrest
of another person should bear the onus of proving
that his action was
justified in law.”
THE EVIDENCE
3. The defendant
called one witness only, namely Warrant Officer James Joseph Hurst
(“Hurst”) who testified that he
has been a member of the
SAPS for 24 years. He started off as a clerk in shifts and was then
moved over to the section dealing
with the exhibits and the
protection thereof. He has been assigned to the Groot Drakenstein
Police Station for 23 years.
4. Hurst testified
that he knew the plaintiff prior to the date of the arrest both
unofficially and officially explaining that the
plaintiff had
previously been in trouble with the police for the same offence. He
has seen her around and spoke briefly to her
on occasion. Ms Cronje
who appeared for the defendant attempted to lead similar-fact
evidence to illustrate that the plaintiff
had previously been
arrested for selling liquor without a license. Mr Snyman, who
appeared for the plaintiff, objected to such
evidence being led on
the basis that such evidence would severely prejudice the plaintiff
and that such evidence would portray
the plaintiff in a negative
light vis a vis the court.
5. Moreover Mr
Snyman submitted that such similar-fact evidence could not, on any
construction, lead to a conclusion that the plaintiff
was dealing in
liquor without a license on the day in question.
6. I ruled that such
evidence was inadmissible and that I would furnish reasons for such
ruling in the judgment. My reasoning, inter
alia, is that this case
involves the arrest of a person without a warrant. An arrest,
wrongful as alleged, implicates a person’s
liberty and other
personality aspects. (See Relyant Trading (Pty) Ltd v Shongwe 2007
(1) AII SA 375 (SCA))
7. Such an arrest,
in order to be lawful, must be shown to have been executed by the
arresting officer if such officer had formed
a reasonable belief that
the plaintiff had committed an offence contemplated by Schedule 1 of
the Criminal Procedure Act 51 of
1977 (“the Act”) or, as
in this case, an offence in terms of section 40 (1) (h) of the Act.
8. Ms Cronje pointed
out to the court that the sub sections (b) and (h) of section 40 of
the Act are identical save that sub section
(b) refers to offences
contained in Schedule 1. It must follow thus that, inasmuch as it is
the duty of the defendant to not only
show that the arresting officer
suspected the plaintiff of having committed an offence but that the
officer reasonably suspected
the plaintiff of having committed a
Schedule 1 offence, specifically, the same applies to this case,
meaning specifically an offence
in terms of section 40 (h). (See
Manqalaza v MEC for Safety and Security, Eastern Cape 2001 (3) AII SA
255 (Tk))
9. The defendant’s
attempt to introduce similar fact-evidence was aimed at showing that
the arresting officer formed the reasonable
belief that the plaintiff
was selling liquor without a license, because she had previously done
so. As far as similar-fact evidence
is concerned the relevance
thereof is dependent upon the argument that the same conditions are
likely to produce the same results.
The practical value of such an
approach is very limited because it is more often than not impossible
to satisfy a court that the
condition on both occasions were
sufficiently similar.
10. This is why the
courts have always insisted that any kind of similar-fact evidence
should have a high degree of relevance. (See
Managers of the
Metropolitan Asylum District v Hill (1)
(1882) 47 LT 29
at 35)
11. In my view such
evidence would not only be irrelevant for the purpose intended but
also prejudicial to the plaintiff in that,
the evidence was aimed at
justifying the arrest and portraying such arrest as compliant with
the provisions of section 40 (h).
For this reason I disallowed such
evidence.
12. Hurst’s
further evidence was that a member of SAPS, who apparently had wished
to remain anonymous, deposed to an affidavit
upon which a search
warrant had been obtained from a magistrate on 23 September 2010, one
day prior to the arrest. This search
warrant was issued in favour of
Hurst, authorizing him to search the plaintiff residence and seize
objects used in the commission
of the suspected offence, being the
selling of liquor without a license.
13. Although the
plaintiff’s case is not based on an irregular or unlawful
search warrant I observed the absence of the annexure
referred in the
search warrant, from the trial bundle. The warrant refers to an
annexure that was neither contained in the trial
bundle nor presented
to the plaintiff. Furthermore part of the search warrant provides the
following:
“Aan: A/O JJ
HURST POLISIEDIENS GROOT-DRAKENSTEIN en Alle lede soos per Aanhangsel
……..
(Rang, naam en
werksadres van lede wat deursoeking gaan uitvoer)
en enige ander lid
van die Suid-Afrikaanse Polisiediens wat behulpsaam kan wees met die
visentering en beslaglegging:
Dit blyk aan my uit
inligting onder eed, dat redelike gronde bestaan om te glo dat daar
binne die Landdrosdistrik van ……….
PAARL …………….
Voorwerpe is,
VERKOOP VAN DRANK ………….. en wat –
*(a) op redelike
gronde vermoed word betrokke te wees by die vermelde pleging van;
*(b) tot bewys kan
strek van die vermeende pleging van; of
*(c) op redelike
gronde vermoed word bestem te wees on gebruik te word by die pleging
van;
die misdryf(we),
synde HANDEL/VERKOOP VAN DRANK en dat ek redelike gronde het om te
vermoed dat die voorwerpe-
*in besit, of onder
beheer van LITITIA DYSSEL EN GREGORY DYSSEL”
(Vermeld naam van
persoon(e)
…. BIEN DONNE
PLAAS HUIS NR. 10, GROOT-DRAKENSTEIN
(Beskryf die
perseel)
U word hierby
gemagtig om gedurende die dag/nag* die geidentifiseerede –
*persoon(e) te
visenteer;
*perseel te betree
en te deursoek en om enige persoon(e) op of by daardie persoon te
visenteer, en op die voorwerp(e) wat in Aanhangsel
“A”
beskryf is, beslag te le, wat gedurende die deursoeking gevind word
en om daaroor te beskik ooreenkomstig artikel
30 van die
Strafproseswet.”
14. The warrant
authorized Hurst to execute the search warrant “…gedurende
die dag/nag” and the remaining parts
were also marked with
asterisks to select one or more of the options thereon. No option was
selected and the search warrant was
issued on that basis.
15. I have
reservations about the validity of the search warrant and its
compliance with the Act. For example section 21 (3) (a)
of the Act
specifically provides that the search shall be executed in the day
unless it is authorized in writing to take place
at night. As I have
said however, this was not the case of the plaintiff. According to
Hurst, on the morning of 23 September 2010
he was allocated the
search warrant at the shifts of the Groot Drakenstein Police Station.
He had no knowledge of the warrant prior
to that morning, but said
that he was allocated the search warrant to execute. No explanation
was given for the delay in executing
the search warrant because the
search warrant was executed between 23h00 to 24h00 on 24 September
2010.
16. Hurst was
accompanied by Captain Morina Abrahams (who was the station commander
at the time) and Constables Jeftas and Cosa.
According to Hurst he
knocked on the door of the servant’s quarters adjacent to the
main house at the plaintiff’s premises
and the plaintiff’s
husband opened the door. Hurst asked where the plaintiff was
whereupon the plaintiff’s husband,
Gregory Dyssel (“Gregory”)
called his wife from the main house and then went back into the
servant’s quarters.
Hurst showed Gregory the search warrant.
When the plaintiff came out of the main house he showed the search
warrant to her as well.
She did not look very happy and after
searching the main house he found 4 full bottles of beer on top of
the freezer, 4 full bottles
inside the freezer and 8 cases of empty
beer bottles.
17. Hurst explained
the charge of dealing with liquor without a license to the plaintiff,
loaded up the bottles and cases and took
the plaintiff with them to
the station where she was arrested and booked and ultimately
incarcerated. It was his decision to arrest
the plaintiff. He
explained that the basis of his decision to arrest the plaintiff was
the quantity of the empty bottles which
showed how much liquor the
plaintiff would have sold. He said that he knew from about 2008 and
2009 that the plaintiff was dealing
in liquor without a license and
he was adamant that he and his colleagues were aware of what the
plaintiff was doing.
18. When asked by Ms
Cronje on what authority he had executed the arrest without the
necessary warrant he replied that she was in
possession of the liquor
and when he asked the plaintiff why there were so many empty bottles
she answered that these were left
over from a previous party. He did
not accept the plaintiff’s explanation and he accordingly
arrested her. The only other
persons present aside from the plaintiff
were her husband Gregory and their son who was in his early teens.
There was no money
found. The remaining evidence as aimed at what
transpired after the arrest.
19. Under cross
examination Hurst conceded that the search warrant does not contain
the so stated “…voorwerpe …
VERKOOP VAN DRANK”
and that the search warrant ought to have stipulated such
“voorwerpe”. Insofar as the absence
of the affidavit upon
which the search warrant was issued, he explained that he was not the
deponent thereof and that it had been
filed somewhere in the
archives. He was clear that the deponent of such affidavit was not he
but someone else. The absence of the
annexure containing the
“voorwerpe” could not be explained.
20. Hurst conceded
that he formed the reasonable belief that the plaintiff was
committing an offence on the basis of the complaint
upon which the
search warrant was issued and because he knew a long time prior to
the arrest “what the plaintiff was doing”.
He also
conceded that it would have been relatively easy to obtain a warrant
of arrest at the same time as the search warrant.
He stated that at
the time it was not protocol to obtain warrants of arrest and at the
time all they were concerned about was closing
down shebeens.
21. Although the
search warrant contains the name of the plaintiff and her husband,
Hurst explained that it was the plaintiff that
they were after. He
was specific that he had formed the reasonable belief that the
plaintiff had been committing an offence, and
because of that, he
felt that he could arrest her.
22. It was put to
him that the plaintiff was not in the main house but in the servant’s
quarters with her husband and that
he could not have found the beers
in the main house and he stated that memory fades with time and that
he got the impression that
the beers came from the main house. His
reasonable belief was formed prior to entering the premises of the
plaintiff and was largely
based on his prior knowledge of what the
plaintiff had done previously. He also stated that the empty beer
bottles were proof of
his suspicions.
23. Hurst was
questioned about the provisions of the then applicable Liquor Act No.
27 of 1989 but was less than sure on what provisions
he might have
acted when arresting the plaintiff. Although I understood his
justification for the arrest to be based on section
40 (h) of the
Act, as pleaded, he stated that he had looked at all the provisions
of that Liquor Act and had acted in terms thereof.
He tried to
explain his lack of knowledge of the applicable law by saying he was
a clerk at the time and he worked on what his
superiors gave him and
applied the law as his Captain ordered him to.
24. What is most
perturbing about Hurst’s evidence is that he readily conceded
that the full bottles of beers did not concern
him but could not
explain the reason for the forensic analysis being conducted on the
full beer after the arrest. Moreover the
Station Commander Captain
Abrahams was off duty but had accompanied him to the plaintiff’s
premises between 23h00 and 24h00
on that night. He went as far as
admitting, incorrectly as it were, that the word “ek”
contained in the search warrant
referred to him whereas if fact this
refers to the magistrate who issued the search warrant.
25. Hurst admitted,
in re-examination, that he relied on the search warrant without
thinking and because every policeman knew what
the plaintiff was
doing and because it was not the first time the plaintiff had been
arrested, he felt he could arrest her. He
admitted that the plaintiff
explained the empty beer bottles as the remainder from a party and
although he admitted that she had
done so in front of everyone he did
not believe her. The Defendant closed its case after Hurst’s
evidence.
26. The plaintiff
testified that she and her husband were in bed at the time. The
lights were off and it was dark. They were in
the process of being
intimate with each other when there was a knock on the door. Gregory
answered the door and Captain Abrahams
asked for the plaintiff. She
came out and Gregory went back to bed to stay with their minor son.
27. She testified
that the main house belonged to her mother and she had grown up
there. She was adamant that Hurst did not speak
to her at all but
that Captain Abrahams dealt with her most of the time. The main
house was locked at the time and she had definitely
not come out from
there but from the servant’s quarters. The beers and the empty
bottles were found in the servant’s
quarters and not in the
main house. She was fleetingly shown the search warrant where after
the search took place without any explanation.
She explained that the
beers were bought for Gregory and his friends upon his request.
28. She explained
that the quantity of beer found was very little for her husband and
his friends, who drank substantial amounts.
This is also the reason
why she had divorced from him together with the fact that he did not
support her emotionally and financially.
She denied emphatically
selling liquor at the time and testified that she had stopped doing
so a long time ago. She had gained
employment then as a seasonal
worker sorting fruit at the same company as her husband.
29. She explained
the ordeal of her being in jail as disgusting, filthy and stinking of
human excrement. It was unbearable. She
could not eat the food she
was given and had to rely upon what was brought to her by Gregory and
her children. She could not sleep
on the bedding provided to her
because of the dirt and grime thereon and it felt like something was
crawling on her the whole time.
30. In desperation
she asked Constable Maart on Sunday 26 September 2010 if she could
sign a statement admitting to everything if
he would release her on
police bail. He apparently agreed, brought her a statement purporting
to be part of the section 35 warning
statement and she made a short
statement admitting to selling liquor without a license so that she
could feed her children. She
explained that she was desperate to get
out and look after her children because her husband was not very
interested in doing so.
Despite the statement she was not released on
police bail. On Monday 27 September 2010 she was taken to court and
eventually released
on bail of R500.00 at approximately 15h00.
31. After one
postponement of the case the charges were withdrawn against her.
32. The cross
examination of the plaintiff did not reveal anything of substance and
was aimed mainly at inconsistencies about her
previous conduct and
the obvious lie she had told about being unemployed when she had
clearly stated that she was at the time.
This she explained by saying
she was looking for sympathy.
ARGUMENT
33. In argument it
was submitted on behalf of the plaintiff that it is inconceivable and
improbable that the deponent of the affidavit
upon which the
application for a search warrant could be anyone else but Hurst
himself because the search warrant was issued in
his favour. Hurst
had testified that he was simply allocated the search warrant at the
shifts on 23 September 2010 and he did not
know anything about it
until he received the search warrant. I do find this to be highly
improbable.
34. Secondly the
liquor legislation referred to by Hurst as having been studied
beforehand was completely irrelevant because the
search warrant was
specific about the offence, coupled with the defendant’s plea
that it relied upon section 40 (h) of the
Act as a defence for the
arrest.
35. It was further
argued that Hurst was motivated to arrest the plaintiff simply by her
previous convictions and he had been committed
to arresting her
before he arrived at her premises. Of utmost importance is his
concession that if he had not known about the plaintiff’s
previous conduct and he was faced with the same empty bottles he
would not have formed a reasonable belief that she was selling
liquor
without a license. In my view this is crucial and shows that the
arrest could not, on these facts, have been lawful.
36. The defendant
argued that the police officers were well within their rights to
arrest the plaintiff because of her history and
moreover in that the
plaintiff had not proved that Hurst exercised his discretion
improperly.
37. Ms Cronje
referred me to the case of Minister of Safety and Security v Sekhoto
and Another
2011 (5) SA 367
(SCA) and submitted that the plaintiff
bore the onus, once the required jurisdictional facts were
established, to show that the
discretion on whether or not to arrest,
was exercised improperly. Whilst this is correct Ms Cronje submitted
that the plaintiff
should have pleaded in her particulars of claim
that the arresting officer failed to exercise his discretion
improperly. I do not
agree. In my view the failure to exercise the
discretion properly flows from the evidence led and the defendant was
at all times
aware of the plaintiff’s case.
38. In Sekhoto
supra, the Supreme Court of Appeal held that the rationality of
arrestor's decision on that question is dependent
upon particular
facts of every case. The so called “fifth jurisdictional fact”
laid down in Louw v Minister of Safety
and Security
2006 (2) SACR 178
(T) to the effect that the police are obliged to consider less
invasive means of bringing suspect before court is not contained
within the meaning and ambit of section 40(1) (b) of the Act.
39. I am furthermore
not persuaded that the defendant’s argument holds water on the
probabilities. In Govan v Skidmore
1952 (1) SA 732
(N) at 734 it was
stated by Selke J that: “…in finding facts or making
inferences in a civil case, it seems to me,
that one may, as Wigmore
conveys in his work on Evidence, 3rd ed., para 32, by balancing
probabilities select a conclusion which
seems to be the more natural
or plausible, conclusion from amongst several conceivable ones, even
thought that conclusion is not
the only reasonable one.”
DECISION AND THE
LAW
40. For reasons that
follow I find that the arrest was unlawful. Hurst was not clear about
his evidence and even admitted that he
could not recall the events
after almost three and a half years. I do find it improbable that the
affidavit upon which the search
warrant was issued in favour of Hurst
specifically, given his evidence that he knew what was going on at
the plaintiff’s
premises long prior to the day of the arrest.
41. Hurst was not
trained as an official dealing with liquor cases and his attempt to
justify the arrest with reference to the liquor
legislation
applicable at the time can only fabrication at best. His view that
warrants of arrest were not protocol at the time
is indicative that
he considered the issuing of a warrant of arrest but because it was
not protocol he decided against it. Moreover
he conceded that he
could easily have obtained a warrant of arrest.
42. Hurst was
clearly motivated by the plaintiff’s previous conduct and it
seems clear to me that he had decided en route
to the plaintiff’s
premises that he was going to arrest her. Having said this I now to
turn to the applicable legal principles.
43. The test to be
applied in determining whether a suspicion is reasonable is an
objective one. For the suspicion to qualify as
reasonable it must be
objectively sustainable. (See Duncan v Minister of Law and Order
1986
(2) SA 805
(A) at 814 E and Mvu v Minister of Safety and Security and
Another
2009 (2) SACR 291
(GSJ) at paragraph (9)) On the facts of
this case I am hardly persuaded Hurt’s suspicion was reasonable
and objectively sustainable.
44. I have also
considered the unreported Supreme Court of Appeal judgment in the
case of Minister of Safety and Security and Jonathan
Daniels v
Johannes Francois Swart Case No. 194/11 wherein at paragraph 23
thereof on page 10, Bosielo JA stated: “To my mind
to conclude
that the respondent was under the influence of alcohol on the mere
fact that he smelt lightly of alcohol, is more of
a quantum leap in
logic. It follows in my view that the second appellant’s
suspicion was not based on reasonable grounds
and therefore the
respondent’s arrest and detention were unlawful”.
45. Furthermore an
arresting officer must for his own opinion (suspicion) and not rely
on another person’s opinion (suspicion).
(See Ralekwa v
Minister of Safety and Security and Another
2004 91) SACR 131
(T) at
paragraph (14) page 136G). Again on the evidence of this case, Hurst
acted on the search warrant issued pursuant to someone
else’s
affidavit and I was not persuaded that it was he that actually
effected the arrest instead of his Captain.
46. The plaintiff
could have been released on bail in terms of section 59 (1) of the
Act. In terms of this section and with due
regard to the alleged
offence that the plaintiff was charged for, the police could have
released the plaintiff on what is commonly
referred to a police bail
and warned to appear in court on the ensuing Monday. The police
should have released the plaintiff either
on bail or warning or
arranged with a commissioned officer for this to have been done.
Moreover, section 35 of the Constitution
provides detailed rights to
arrested, detained and accused persons, including the right to be
released if the interests of justice
permit and upon reasonable
conditions, and to humane conditions of detention.
47. The plaintiff
did, in desperation, ask Constable Maart on Sunday 26 September 2010
to release her on police bail if she would
sign a statement admitting
to everything. He apparently agreed and brought her a document
purporting to be part of the section
35 warning statement.
48. She made a short
statement admitting to selling liquor without a license so that she
could feed her children. She explained
that she was desperate to get
out and look after her children because her husband was not very
interested in doing so. Despite
the statement she was not released on
police bail. On Monday 27 September 2010 she was taken to court and
eventually released on
bail of R500.00 at approximately 15h00.
49. It must follow
that even if the arrest was lawful it does not follow automatically
that such person is to be detained until
he or she may be brought to
court at the earliest opportunity: a proper discretion is always to
be exercised as to whether detention
is indeed appropriate. Perhaps
this will serve (as in the Mvu judgment, supra) as encouragement for
a wider awareness on detaining
people when it is not necessary to do
so.
50. I now turn to
the issue of quantum. This matter does entail some aggravating
features. The plaintiff was arrested on a Friday
late at night
despite the search warrant having been issued on the morning the
previous day. The warrant did not provide for the
search to be
conducted at night. The only inference that I can draw is that the
time of the arrest was designed to ensure that
the plaintiff would
spend the whole weekend in jail and not be able to apply for bail in
a court.
51. Furthermore the
arrest must have taken place in front of her husband and minor child
and, as the court was told, on their way
to the police station there
were other members of the immediate surrounding community to whom she
is well known who witnessed the
arrest. The plaintiff was clearly
traumatised by the events. She and her husband were in the throes of
being intimate with each
other late at night when the police arrived
and arrested her.
52. I am mindful of
the difficulty in arriving at fair compensation which is simply based
on previous court decisions. I was referred
to the case of Thandani v
Minister of Law and Order 1991 (1) SALR (EC) at 702 at 707 A-C
wherein the factors to be considered when
dealing with compensation
are dealt with. These include the deprivation of liberty, the social
standing in the community, the circumstances
surrounding the
deprivation of liberty and the publicity of the arrest. On the facts
of this case the plaintiff was not a flight
risk.
53. In Seria v
Minister of Safety and Security
2005 (5) SA 130
C the court awarded
R50000.00 for a shorter period of detention. After the appeal in the
case of Seymour v Minister of Safety and
Security
2006 (6) SA 320
(SCA), Bertelsmann J, in the case of Louw v Minister of Safety and
Security and Others
2006 2 SACR 178
(T) awarded R75000.00. Most of
the cases that I was referred to appear to have awarded amounts in
this region. In this case however
the plaintiff spent three nights in
jail under circumstances and conditions that she described as
unbearable.
54. In the
circumstances I am of the view that an award of R90000.00 would be
appropriate. The cases that I have had regard to and
were referred to
by counsel include awards that fall within the jurisdiction of the
magistrate’s court. I was requested by
counsel for the
defendant, in the event that I find for the plaintiff, to consider
awarding costs on the magistrate’s court
scale. I am not
persuaded to do so. In all the cases referred to the underlying
principle of awarding costs on the high court scale
appears to be the
importance which the courts attach to questions of unlawful arrest
and detention. Consequently I am of the view
that costs on the high
court scale should be awarded.
55. In the premises
I make the following order:
(a) The defendant
shall pay to the plaintiff the sum of R90000.00.
(b) Interest on the
aforesaid sum at the rate of 15.5% per annum from date of judgment to
date of payment.
(c) Costs of suit on
the high court scale as between party and party.
AVVAKOUMIDES, AJ
JUDGE OF THE HIGH
COURT
Representation
for the Plaintiff:
Counsel Adv: T P
Snyman
Instructed
by Erwee Attorneys
Representation
for Defendant:
Counsel Adv: H T
Cronje
Instructed
by: State Attorney