About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2014
>>
[2014] ZAGPPHC 180
|
|
Ndaba and Others v Minister of Police (48208/2012, 48209/2012,49490/2012) [2014] ZAGPPHC 180 (2 April 2014)
IN THE HIGH COURT
OF SOUTH AFRICA
GAUTENG DIVISION.
PRETORIA
CASES
NO: 48208/2012
48209/2012
49490/2012
DATE:
02 APRIL 2014
In the
consolidated matters between:
SIPHIWE
NDABA
...............................................................
First
Plaintiff
MALIBONGWE
MAZIBUKO
......................................
Second
Plaintiff
SBONISENl PHILLIP
MAZIBUKO
................................
Third
Plaintiff
And
THE MINISTER OF
POLICE
...............................................
Defendant
JUDGMENT
MOTHLE J
Introduction
1. Each one of the
three Plaintiffs; Siphiwe Ndaba, Malibongwe Maizibuko and Sboniseni
Phillip Mazibuko instituted action separately
against the Minister of
Police (“the Defendant”) for damages arising out of an
alleged unlawful arrest and unlawful
detention. At the commencement
of the trial an application was made by counsel for both the
Plaintiffs and the Defendant for consolidation
of their actions as
the cause of action arose on the same date, time and place and
involving the same police officers. The Court
granted the order and
the three actions were then consolidated and heard as one action with
the three Plaintiffs against the Defendant.
2. The Defendant had
also filed a notice to amend its plea to which the Plaintiffs, on
expiry of the notice period, had not objected.
However, the
Defendant, on expiry of the notice period, failed to file an amended
plea in time for the trial. The Court granted
leave for the Defendant
to file their amended plea at the commencement of the trial, as the
time frame within which they had to
file the amended plea it in
terms of Rule 28, had not expired.
The Pleadings
3. According to the
pleadings the Plaintiffs allege that on or about 24 September 2011 on
the N3 highway near Heidelberg, they were
unlawfully and wrongfully
arrested by members of the South African Police without a warrant,
charged with armed robbery and detained
until 27 September 2011.
According to the particulars of claim, the alleged arrest and
detention were unlawful and wrongful in
that:
3.1 the Plaintiffs
were arrested without a warrant;
3.2 that the police
did not have reasonable belief that they had committed a Schedulel
offence;
3.3 that the police
did not follow the correct procedures in effecting arrest on the
Plaintiffs;
3.4 the members of
the police were acting within the course and scope of their
employment as policemen.
4. The Plaintiffs
further allege that as a result of the unlawful arrest and detention
each one of them suffered damages in the
amount of R350,000.00 for
contumelia and loss of amenities.
5. The Defendant
initially filed a plea which in effect was a denial of knowledge of
the allegations raised in the particulars of
claim. Later, as I have
already stated, the plea was amended, wherein the Defendant:
5.1 admitted that
the arrest took place on 24 September 2011 by members of the South
African Police;
5.2 that the arrest
was effected on the N3 highway near Heidelberg;
5.3 that the arrest
was effected without a warrant;
5.4 that the
Defendant denies that the arrest was unlawful.
6. The Defendant
specifically pleaded as follows:
6.1 that the arrest
was carried out by police officer as contemplated by the
Criminal
Procedure Act, 51 of 1977
;
6.2 that the
arresting officer had a reasonable suspicion that the Plaintiffs had
committed a Schedule 1 offence, to wit, armed
robbery, in the
alternative that the arrest was effected in order for further
investigations to be conducted under docket CAS Lenasia
193/12/2010,
in order to establish whether the Plaintiffs were involved in the
offence of armed robbery in the said case.
7. The Defendant
further admitted the detention of the Plaintiffs in Heidelberg and
Lenasia Police Stations from 24 September 2011
at approximately 19H30
until 27 September 2011 at 07H30.
The legal
principles
8. It is trite that
once the Defendant admits that there was an arrest, the onus is on
such Defendant to prove that such arrest
was lawful, see: Brand v
Minister of Justice 1959 [4] All SA 420 (A) and Minister of Law and
Order v Hurley
[1986] ZASCA 53
;
[1986] 2 All SA 428
(A) at paragraph 32. Consequently,
the Defendants had the duty to begin. See in this regard Intramed
(Pty) Ltd v Standard Bank
of South Africa Ltd
2004 (6) SA 252
(W) and
Topaz Kitchens (Pty) Ltd v Naboom Spa (Edms) Bpk
1976 (3) SA 470
(A).
The evidence
9. The Defendant led
the evidence, first, of two witnesses, Shaim Ismai and Abdul Gaehler
who were at the scene of the armed robbery
and who gave the police
information by way of statements. Their evidence was helpful to the
extent of the information which they
gave to the police in order to
commence investigation. The statements of these two witnesses
together with those of other eye witnesses
on the scene of the
robbery informed the police that on the 6 December 2011 six men were
involved in an armed robbery at a house
in Lenasia. These men were
travelling in a motor vehicle Nissan Tiida with registration number:
VLW 060 GP and blue in colour.
It was on the strength of this
information that the third witness for the Defendant, Warrant Officer
Baloyi ("Baloyi”)
commenced his investigation of this
crime.
10. Baloyi used the
description of the vehicle to obtain further particulars relating to
the owner thereof who turned out to be
a person bearing the name of
the Third Plaintiff. Baloyi testified that he went to look for the
Third Plaintiff to find out what
he knew about the robbery and could
not succeed in doing so as the address on the papers he had was
inaccurate. On advice of his
superiors, he then put a notice on the
internal police communication network to seek assistance of other
police officers in tracing
the vehicle. This process was referred to
in the trial as putting the vehicle on “circulation
11. The Defendant
then called Constable Motseko (“Motseko”) who is attached
to the Gauteng Flying Squad, Vaalrand of
the South African Police. He
testified that he was on duty on the N3 highway on 24 September 2011,
in the company of another police
Constable, Nkonza. A message came
through the radio that a vehicle described as a Nissan Tiida blue in
colour with registration
number VLW 060 GP had just passed the toll
gate and that such vehicle was linked to an armed robbery that
occurred in Lenasia,
where six males were involved. The police were
instructed to go and check on that vehicle. Motseko and Nkonza got
onto the highway
and saw the vehicle fitting that description. They
stopped the vehicle and the driver of the vehicle came out. Motseko
asked the
driver of the vehicle whose vehicle it was and he replied
by stating that he is the owner of the vehicle. When Moseko told him
that the vehicle was linked to an armed robbery in Lenasia on 6
December 2010, the driver replied that his vehicle was not involved
in such robbery as he is the only person who drove that vehicle ever
since he purchased it and it was never driven by anybody else.
The
two police officers then searched the vehicle as well as the
occupants. There were four males in the vehicle including the
driver.
The search did not yield anything. Motseko further testifies that
when he wanted to get the particulars of the other three
occupants,
the driver gave him his particulars but informed the other passengers
not to give their addresses to the police. He
testified further that
he played the radio communication for the driver to listen and the
message concerning the vehicle was repeated
on the communication. He
thereafter arrested the driver and the three other occupants and they
drove to the Heidelberg Police Station.
12. At the
Heidelberg Police Station he took down the Plaintiffs’
particulars, informed them that he will be keeping them
in the cell
until the Lenasia Police arrive to take over. He then assisted the
driver to collect his personal belongings from the
vehicle which he
recorded in the SAP 13 and then had the driver and his passengers
detained in a cell. He then took the vehicle
to Vaalrand where it was
impounded.
13. Under
cross-examination he stated that the reasons why he arrested the four
occupants of the vehicle were that:
(i) the vehicle
fitted the description of the vehicle which was linked to the armed
robbery in Lenasia;
(ii) the driver
identified himself as the owner of the vehicle and stated that he is
the only person who has driven the vehicle
and no one else has ever
driven the vehicle since he purchased it in November 2011;
(iii) the radio
message made reference to six males involved in the armed robbery and
when he stopped the vehicle there were four
males in it;
(iv) the driver of
the vehicle advised the other occupants not to give the police their
addresses.
14. That was the
case for the Defendant.
15. The three
Plaintiffs and a further witness, Ashen Sewpersaad also testified.
Ashen’s evidence was that he knew the Third
Plaintiff who was
his co-worker. He did not believe that the Third Plaintiff would be
involved in a robbery. He further testified
that on the day of the
robbery, the Third Plaintiff was at work and was part of a meeting
that was held. He could however not produce
any evidence to support
this statement. The issue in this trial is whether the arresting
police constable had reasonable grounds
to hold a suspicion that the
persons he arrested without a warrant had committed a schedule 1
offence. The evidence of Ashen is
not relevant at all in regard to
the issue before this Court. It could be relevant for establishing an
alibi in the event of a
criminal trial.
16. The first
amongst the Plaintiffs to testify was the Third Plaintiff who was the
driver and owner of the vehicle. His version
basically corroborated
the testimony of Motseko except that he held the belief that he was
innocent and his car was not involved
in the robbery. In regard to
his detention in the Heidelberg Police Station, the Third Plaintiff
testified that the cell in which
they were kept was small, crowded
and dirty. And further that the blankets which they used to sleep on
were also dirty. He testified
further that there was no water in the
cells and the only water was on the passage located on a basin where
they were let out in
the morning to wash. He could only wash his
teeth with his finger and could not wash his body. He testified
further that they
were given coffee and bread in the morning and
later on the Sunday, they were given mielie meal and beans soup for
lunch. They
did not have anything to eat for dinner.
17. On the Monday at
about 14H00 in the afternoon the police from Lenasia came to collect
them where they were shackled in both
their hands and feet and driven
to Lenasia Police Station. On arrival there they were locked up.
Later on Monday evening at about
8 o’clock they were each
called in to take a statement with Baloyi. The following morning,
Tuesday 27 they were then taken
to Court but later that day released
as the matter was not enrolled by the prosecutor. He testified that
while waiting to be called
into Court he phoned his father and
requested him to procure the services of an attorney to represent
them, which his father did.
Upon their release in the afternoon their
attorney explained to them that the prosecutor refused to put the
matter on the roll
as there was insufficient evidence. However, an ID
parade was still to be held. On the day scheduled for the ID parade,
the witnesses
did not arrive and therefore the ID parade was
cancelled.
18. Of importance in
his testimony, the Third Defendant testified that when he purchased
the vehicle in November 2010, he had moved
out of his father’s
residence and was staying at a different residence. However, he gave
the financiers of the vehicle his
old address where his father stays
and not his new address. He identified the address on the documents
that were enclosed in the
bundle as Block 4, Unit 28, Volhurst
Street, Jeppestown, Johannesburg. I need to mention that where 28 is
written by hand there
is a number that has been deleted. This address
also appears as the address of the Second Plaintiff with the number
407 and not
28. During cross-examination the Third Plaintiff admitted
that he misrepresented his correct residential address when he gave
the
financiers what he alleged was his father’s address. He
also admitted several inaccuracies on the statement he sent to the
police complaining about his arrest and loss of certain articles in
the vehicle during his arrest. The contents of this statement
were
inconsistent with the evidence he gave in Court and at some point he
could not make up his mind on the witness box as to whether
the Court
should rely on his evidence in Court or on the statement itself.
19. The other two
Plaintiffs also testified.
20. The Second
Plaintiff testified about the arrest virtually corroborating the
version of Constable Motseko, except that he denied
that the driver
told him not to provide their addresses to the Constable at the scene
of the arrest. He further also testified
that for lunch on Sunday
they had rice and chicken which was different from what the Third
Plaintiff has stated. He denied any
involvement in the robbery. He
further testified that he lost his employment as a result of the
arrest and detention. The First
Plaintiff was the last to testify. He
broadly corroborated Motseko as well as the other two Plaintiffs on
the arrest but denied
that the driver told him not to give the police
their addresses at the scene of the arrest. He corroborated the Third
Plaintiff
in regard to the meal they had. He, however, denied that
they were ever taken to Court. He testified that on the morning of
Tuesday,
27 they were taken out of the cells but were made to stand
there and he does not remember what happened. He only knows that
sometime
during the afternoon they were released through the back
entrance of the police station. He denied ever going to Court and at
some
point under cross-examination he stated that he cannot remember
what happened on the day.
Evaluation of
Evidence
21. The question
that the Court had to deal with in this case is whether the arrest
and detention were lawful or unlawful. It is
trite, as already
stated, that in a claim for unlawful arrest and detention, the onus
rests on the Defendant to prove, on a balance
of probabilities, that
the arrest and detention were lawful. See: Minister of Law and Order
v Hurley, supra and Mhaga v Minister
of Safety and Security
[2001] 2
All SA 535
(TK).
Arrest
22. It is common
cause that an arrest without a warrant is authorised by Section 40(1
)(b) of the Criminal Procedure Act, 51 of
1977 ("CPA"),
which reads thus:
“40. Arrest by
peace office without warrant. -(1) A peace officer may, without
warrant, arrest any person - (b) whom he reasonably
suspects of
having committed an offence referred to 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;"
23. The Appellate
Division in Duncan v Minister of Law and Order
1986 (2) SA 805
(A) at
818 G stated that Section 40(1 )(b) stipulates the following
jurisdictional facts namely:
23.1 the arrestor
must be a peace officer;
23.2 he must
entertain a suspicion;
23.3 there must be a
suspicion that the arrestee committed an offence referred to in
Schedule 1 to the
Criminal Procedure Act; and
23.4 the suspicion
must rest on reasonably grounds.
24. On the evidence
it is not disputed that the arresting officer, Constable Motseko is a
peace officer. The Plaintiffs also do
not dispute that the offence
for which they were arrested is a
Schedule 1 offence,
to wit, armed robbery. In issue therefore is whether Motseko had a
suspicion which rested on reasonable grounds.
A reasonable suspicion
must be objectively ascertainable, Ralekwa v Minister of Safety and
Security 2004 (1)SACR 131 (TPD).
25. Counsel for the
Plaintiffs argued that, on the authority of the matter of Louw and
Another v Minister of Safety and Security
and Others 2005 JDR 0199
(T), the arresting officer was supposed to employ less invasive means
to bring the suspect to Court other
than arresting them. However, as
correctly pointed out by counsel for the Defendant, that notion was
rejected by the Supreme Court
of Appeal in the matter of The Minister
of Safety and Security v Sekhoto and Another
[2011] 2 All SA 157
(SCA).
26. Motseko has
stated his reasons for arresting the Plaintiffs. He testified that
the Third Plaintiff not only identified himself
as the owner of the
vehicle, but went further on his own to state that he is the only
person who has ever driven that vehicle since
he purchased it. By
implication it means if the vehicle was indeed linked to the offence,
then he was the driver of the vehicle
on the day of the robbery. This
evidence was not disputed. On the strength of this statement, any
reasonable peace officer would
suspect the driver to have been
involved in the robbery. Motseko in my view had a reasonable
suspicion that the driver participated
in the robbery and was
accordingly justified to arrest him.
27. In regard to the
other three passengers in the vehicle, including the First and Second
Plaintiffs, counsel for the Plaintiffs
argued that the arrest was
effected approximately ten months after the robbery occurred and it
was accordingly unreasonable for
any police officer to suspect that
the passengers in that vehicle would be the same persons identified
at the scene of the robbery
on 6 December 2010. There is, however,
other evidence that is very critical in regard to the arrest of the
First and Second Plaintiff
by Motseko. Motseko testified that the
driver of the vehicle, being the Third Plaintiff advised the other
passengers not to give
their addresses to the police when they asked.
During cross-examination of Motseko, this evidence was not disputed.
Similarly,
in the evidence in chief, cross-examination and
re-examination of the Third Plaintiff this issue was not raised. It
only surfaced
when the Court asked the Third Plaintiff a question as
to whether he advised the other passengers not to give their
addresses to
the police. The Third Plaintiff denied that he did this.
However, he could not explain why this denial was not put to Motseko
to
comment or raised in his evidence in chief or re-examination.
28. The First and
Second Plaintiffs were asked if the Third Plaintiff advised them not
to give their addresses to the police at
the scene of the arrest and
they denied. Likewise, this denial was not put to the Defendant’s
witnesses.
29.
Section 41
of
the
Criminal Procedure Act provides
as follows:
“41. Name and
address of certain persons and power of arrest by peace officer
without warrant. - (1) a peace officer may call
upon any person - (a)
whom he has power to arrest; (b) who is reasonably suspected of
having committed or having attempted to commit
an offence; (c) who,
in the opinion of the peace officer, may be able to give evidence in
regard to the commission or suspected
commission of any offence, to
furnish such peace officer with his full name and address, and if
such person fails to furnish his
full name and address, the peace
officer may forthwith and without warrant, arrest him, or, if such
person furnishes to the peace
officer a name or address which the
peace officer reasonably suspects to be false, the peace officer may
arrest him without warrant
and detain him for a
period not exceeding 12 hours until such name or address has been
verified.
30. Failure by the
Plaintiffs to provide name and address to Motseko as requested will
definitely fall within the ambit of
Section 41
of the CPA. There are
two versions before Court. The one version is that of Motseko that he
requested the addresses of the passengers
including the First and
Second Plaintiffs and the Third Plaintiff, being the driver, advised
them not to furnish such information
to the police. On the other hand
all the Plaintiffs denied that the Third Plaintiff told the other two
not to provide the names
and addresses to the police.
31. Where the Court
is faced with two mutually destructive versions such as in this
instance, it is apposite to refer to the approach
which was laid down
by the Supreme Court of Appeal in the matter of Stellenbosch Farmers
Wineries Group Life and Another v Marcell
Cie and Others
2003 (1) SA
11
(SCA), where the Court stated that to come to a conclusion on the
disputed issues the Court must make findings on:
(a) the credibility
of the various factual witnesses,
(b) their
reliability; and
32. On the question
of credibility it is clear the evidence on record that there were
inconsistencies in the Plaintiffs’ versions.
As already pointed
out, Motseko’s version in general was not disputed. In fact it
was materially corroborated by the Plaintiffs.
33. The Third
Plaintiff proved to be an unreliable and confused witness under cross
examination. After his release from arrest he
wrote to the senior
police officers complaining about the loss of some of the articles
that were in his motor vehicle. In that
letter, he made certain
statements that proved to be in direct conflict with what he
testified before Court. At some point under
cross-examination he was
undecided whether to stick to his version on the statement he wrote
to the police after the arrest incident
or to stand by his evidence
in Court. He could not make up his mind as to which version should be
acceptable and that exposed contradictions
in his evidence. He
further admitted to have provided false and misleading information
regarding his actual residential address
when he purchased his motor
vehicle. He was clearly a poor and unreliable witness.
34. The Second
Plaintiff contradicted the other two in regard to the meals they had
at the Heidelberg police station. He testified
that they were served
rice and meat for lunch whilst the other Plaintiffs testified that
they had beans soup. The First Plaintiff
also contradicted the other
two Plaintiffs as to whether they were taken to Court or not. His
testimony is that they were not taken
to Court but were released at
the back of the police station in Lenasia. Therefore in weighing the
probabilities in this case,
I am of the view that the Plaintiffs
evidence is contradictory and unreliable. Motseko on the other hand
impressed the Court with
his demeanour as a witness. On a balance of
probabilities the version of Motseko in regard to what transpired at
the scene of arrest
seems to be more probable and reliable. The Third
Plaintiff, for reasons unknown, informed the other passengers in the
vehicle
not to provide their addresses when Motseko asked for them.
This in my view provided sufficient ground for the arrest of the
passengers
as well.
35. It appears that
all evidence considered, Motseko had reasonable grounds to suspect
that the Third Plaintiff together with the
other three suspects who
were being conveyed in his vehicle were the people the Lenasia Police
were looking for. The submission
by
counsel for
Plaintiff that he should have investigated or verified the version of
the suspects before arresting them is clearly
not practical and has
been rejected in the matter of Minister of Safety and Security v
Sekhoto and Another supra . The Plaintiffs
were stopped on a highway
at 19H30 by police officers who were not in charge of the
investigation of that offence but simply impounded
the vehicle and
arrested the persons found in the vehicle for reasons already
outlined. When the parties arrived at the police
station, the
Plaintiffs admit that Motseko informed them that this is a case from
Lenasia and that the Lenasia police will conduct
further
investigations concerning the explanation that they had given and
their denials of participation in the armed robbery.
36. Under these
circumstances and having regard to the evidence as a whole, I am of
the view that the arresting police officer had
reasonable grounds to
effect the arrest and that the jurisdictional facts required in terms
of
Section 40(1
)(b) of the
Criminal Procedure Act, as
considered in
the matter of Duncan v The Minister of Safety and Security supra were
met. Under these circumstances, the Plaintiffs’
action
regarding unlawful arrest cannot succeed.
Detention
37. The Plaintiffs
were arrested at 19h30 on 24 September 2012, a Saturday and detained
at 20h10 in Heidelberg. They were released
at 14h00 on 27 September
2012, on Tuesday. The first 48 hours after their arrest expired on
Monday at 19h30. Since the Court was
not sitting at that time, the
next available court day was Tuesday 27, on which day they were taken
to court and released.
38.
Section 50
(1)
(d) of the CPA provides that an arrested person must, if the 48 hours
within which he must in terms of the section be brought
before court
expires outside normal court hours or on a day which is not a normal
court day, be brought before a lower court not
later than the end of
the first court day. On proper interpretation of this
section 50
(1)
(d), the first court day since their arrest on Saturday was the
Monday.
39. Baloyi testified
that he could not obtain. Immediate access to a police vehicle to
fetch the Plaintiffs at Heidelberg Police
Station, but was able to do
so later on Monday at 14h00.
40. Like arrest,
detention in police custody results in the deprivation of liberty and
movement rights, which are protected by the
Constitution. In the
matter of Minister of Correctional Services v Tobani
[2001] 1 All SA
370
(E) the court stated the principle at 371F thus:
" So
fundamental is the right to personal liberty that the lawfulness or
otherwise of a person’s detention must be objectively
justifiable, regardless of the bona tides of the gaoler and
regardless even of whether or not he was aware of the wrongful nature
of the detention
41. In the matter of
Prinsloo v Nasionale Vervolgingsgeslag
2011 (2) SA 214
(GNP) the
Court dealt with the interpretation of Section 50 (1) (d) (i) and
concluded on p220 in paragraph [21] as follows:
“[21] In
hierdie geval het 48 uur verstryk om 16h30 op Vrydag 20 November
2009. Na my mening beteken die verwysing no eerste
hofdag nie ‘n
hofdag na verstryking van die 48 uur nie, maar ‘n hofdag in die
eerste gedeelte van die 48 uur: ”
42. I agree that
where the 48 hours expire after hours on a court day, the person in
custody must be taken to court before the
expiry of the 48
hours, since by then the court shall have adjourned. The limit of 48
hours in terms of section 50 of the CPA is
to protect citizens
against unnecessary deprivation of their fundamental rights and
freedoms as provided for in section 12 (1)
of the Constitution, see
in this regard Minister of Law and Order and Another v Parker
1989
(2) SA 633
(A) at 637J.
43. It also seems to
me that this interpretation is supported by the fact that in the
immediate subsection 50 (1) (d) (ii) which
follows, the statute
refers to instances where the person so detained may be brought to
court, subject to certain specified conditions
such as physical
illness "... on, the next succeeding court day” The notion
that where the period of 48 hours after
arrest expires after court
hours on a court day in terms of section 50 (1) (d) (i), the detainee
may be brought to court the next
succeeding court day is false.
Resort to the next succeeding court day is only applicable to
instances which fall under section
50 (1) (d) (ii). I therefore agree
with the interpretation and approach by the Court in Prinsloo v
Nasionale Vervolginsgeslag supra
and will follow it.
44. According to
Baloyi, the Plaintiffs could not be taken to court on Monday due to
unavailability of transport. They could only
be transported at 14h00
on Monday, an hour or two before the court adjourns. As a result,
they had to spend one more night in custody.
This clearly cannot be
an excuse to prolong their incarceration. In my view, they should
have been taken to court on Monday 26.
Consequently, they were
unlawfully detained from Monday 26 September 2012 at 20h10 until
their release on Tuesday 27 at 14h00 as
their further detention was
neither authorised by court nor was their case on the roll awaiting
hearing.
45. The Defendant is
thus liable for the unlawful detention of the Plaintiffs beyond the
48 hour limit imposed by Section 50 of
CPA. I now turn to consider
the award of compensation for damages suffered as a result of the
unlawful detention.
46. The Plaintiffs
testified that the conditions in the Lenasia were same as in
Heidelberg; dirty cells and dirty blankets. It is
however not only
the conditions of their detention that is relevant in the
determination of compensation for damages. The mere
incarceration is
degrading and an affront to the person’s dignity. Most
importantly, is a deprivation of a Constitutionally
protected freedom
and the security of the person.
47. Determining the
monetary value to these rights is not dependant on simple
mathematical or other scientific calculations. Neither
is case law
very helpful in this regard. However, case law serve only as a
guideline. In the words of Nugent JA in Minister of
Safety and
Security v Seymour
[2007] 1 All SA 558
(SCA) at paragraph 17:
“The
assessment of awards of general damages with reference to awards made
in previous cases is fraught with difficulty. The
facts of a
particular case need to be looked at as a whole and few cases are
directly comparable. They are a useful guide to what
other courts
have considered to be appropriate but they have no higher value than
that”
48. And at 326
paragraph 20:
“[20] Money
can never be more than a crude solatium for the deprivation of what,
in truth, can never be restored and there
is no empirical measure for
the loss. ”
49. The following
cases were considered as a guide by the Court in the Seymour matter,
namely:
In Solomon v Visser
and Another
1972 (2) SA 327
(C), a 48- year-old businessman who was
detained for seven days, first in a police cell and then in a prison,
was awarded R4 000
(R136 000). In Areff v Minister van Polisie
1977
(2) SA 900
(A), this Court awarded a 41- year-old businessman who was
arrested and detained for about two hours R 1 000 (R24 000). In Liu
Quin Ping v Akani Egoli (Pty) Ltd t/a Gold Reef City Casino
2000 (4)
SA 68
(W), a businessman who was unlawfully detained for about three
hours was awarded R12 000 (R 16 978). In Manase v Minister of Safety
and Security and Another
2003 (1) SA 567
(Ck) in which a 65-year-old
businessman was unlawfully detained for 49 days, incarcerated at
times with criminals, the sum of R90
000 (R102 000) was awarded. In
Seria v Minister of Safety and Security and Others
2005 (5) SA 130
(C), a professional man who was arrested and detained in a police
cell for about 24 hours, for a time with a drug addict, was awarded
R50 000 (R52 000).
50. The Supreme
Court of Appeal In the matter of Minister of Safety and Security v
Tyulu
[2009] 4 All SA 38
(SCA) awarded compensation in the amount of
R15 000 for a magistrate who was arrested and briefly detained for
being drunk in the
early hours of the morning.
51. It is the
finding of this Court that the arrest of the Plaintiffs was lawful.
The detention of the Plaintiffs was also lawful
for the period until
Monday 26 September 2012 at 20h11. Beyond that time, and up to their
release the following day, the detention
was unlawful for those
hours.
In the premises I
make the following order:
1. The Plaintiffs’
action for unlawful arrest is dismissed.
2. The Plaintiffs’
action for unlawful detention succeeds in part.
3. The Defendant is
ordered to pay each Plaintiff an amount of R10 000 as damages for
unlawful detention.
4. The Defendant is
ordered to pay 50% of the Plaintiffs’ taxed costs.
JUDGE SP MOTHLE
High Court of
South Africa Gauteng Division PRETORIA.
Date of Hearing:
4, 5, 6 and 7 March 2014
Date of Judgment:
2 April 2014
FOR THE
PLAINTIFF: ADV. J VAN ZYL
INSTRUCTED
BY: FRANKIN ATTORNEYS
93 NJALA
ROAD/ELEPHANT ROAD
MONUMENT PARK
PRETORIA
FOR THE
DEFENDANT: ADV. KM MOKOTEDI
INSTRUCTED
BY: THE STATE ATTORNEY
SALU BUILDING
255 FRANCIS BAARD
STREET
PRETORIA