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[2014] ZAGPPHC 280
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Raboshaba v Minister of Safety And Security and Another (41312/2011) [2014] ZAGPPHC 280 (9 May 2014)
IN
THE NORTH GAUTENG HIGH COURT, PRETORIA
(REPUBLIC
OF SOUTH AFRICA)
CASE
NO: 41312/2011
DATE: 03 MAY 2014
In
the matter between:
JOSHUA
RABOSHABA
.............................................................
PLAINTIFF
And
MINISTER
OF SAFETY AND SECURITY
..................
1st
DEFENDANT
CONSTABLE
VAN DER BERG
..................................
2
nd
DEFENDANT
JUDGMENT
MALI
AJ
:
[1]
The
plaintiff in this action seeks damages in the amount of R300.000.00
against the defendant arising out his arrest on 13 April
2010 in
Boschkop Police Station, his release on bail after ten (10) days and
ultimately the resultant withdrawal of the plaintiff’s
case on
7 December 2010.
[2]
The
plaintiff alleges that his arrest for the charge of armed robbery was
unlawful if regard had to the requirements of section
40(1) (b) of
the Criminal Procedure Act 51 of 1977 (“CPA”), in that
the second defendant failed to exercise his discretion
to the effect
that there was a reasonable suspicion that the plaintiff committed
the offence.
[3]
The
defendant denies that the arrest was unlawful and avers that the
plaintiff was arrested pursuant to the second defendant having
had
exercised a reasonable suspicion, in that the plaintiff was
positively identified as the person who committed the offence.
[4]
The
duty to begin was argued by the parties and I ruled that the duty to
begin was upon the defendant. The case proceeded on merits
and
quantum.
[5]
The
issues that arise for consideration are the following:
(i)
Whether
on the facts, Constable van der Bergh (the second defendant) had
formed a reasonable suspicion that the plaintiff had committed
an
offence falling under Schedule 1 of the Act.
(ii)
Whether
he applied his mind properly in exercising his discretion to arrest
the plaintiff.
(iii)
If
not, then the quantum of plaintiff’s damages occasioned by the
arrest and detention.
(iv)
Liability
for costs.
COMMON CAUSE FACTS
[6]
The
plaintiff was arrested on the 13 April 2010, at Boschkop Police
Station whilst on duty as he was and is still a member of the
South
African Police Service (“SAPS”). He was arrested by the
second defendant, acting within the course and scope
of his
employment.
[7]
Pursuant
to the plaintiff’s arrest, he was detained at Kameeldrift
Police Station cells from 13 April 2010 until 15 April
2010.
Thereafter the plaintiff was detained at Pretoria Central Prison from
15 April 2010 until 23 April 2010 upon his release
on bail. The
matter was remanded several times pending the decision of the
Director of Public Prosecutions (“DPP”)
and the charges
were withdrawn on 7 December 2010 as the DPP declined to prosecute.
THE
EVIDENCE
[8]
On
behalf of the defendant, Constable Gerhadus van der Bergh (“Constable
van der Bergh”) testified that he was a constable
in the SAPS
and has been a SAPS member for twelve (12) years. On 13 April 2010 he
was performing duties at Mamelodi Trio Task Team,
when he was
informed by the Commanding officer, Lieutenant General Sesweke
(“General”) that there was an allegation
of armed robbery
against the plaintiff. The General informed him that there was
a sworn statement made by the complainant
in the case of armed
robbery wherein the complainant had positively identified the
plaintiff 100%.
[9]
Constable
van der Bergh then telephonically contacted the complainant, Mr Spath
to verify whether he was sure about the plaintiff’s
identification. He testified that Mr Spath confirmed the
plaintiff’s identity and that he was prepared to testify in
court.
[10]
He
further testified that Mr Spath identified the plaintiff as the
suspect in the armed robbery which occurred on 6 August 2009
and he
further confirmed the plaintiff’s identity on 18 March 2010
when the plaintiff assisted him to certify documents at
the police
station. He also established from the statements that the
plaintiff visited Mr Spath’s home on 11 April
2011 uninvited in
a suspicious manner and that according to him confirmed that indeed
the plaintiff was the suspect. He also testified
that he thereafter
examined the statements which were taken at the time of the alleged
robbery and had established a link between
the suspect and the case
of robbery. The link was based on the description of the plaintiff.
He then formed a reasonable
suspicion that the plaintiff
was the suspect.
[11]
He
then proceeded to the General to discuss his findings, the General
then informed him that the plaintiff must be arrested and
further
investigation conducted upon. He further testified that he
established that there were sufficient grounds to arrest the
suspect
based on Mr Spath’s statements. Under cross examination he
conceded that the only ground he relied upon was the alleged
positive
identification of the plaintiff according to Mr Spath’s sworn
statement and the telephonic confirmation by Mr Spath
the
complainant. According to him, Mr Spath had positively
identified the plaintiff as “
lank
and stewig, hy het goed Afrikaans gepraat”
.
Under cross examination it also transpired that the sworn statement
relied upon by Constable van der Bergh was deposed to at 13h20
on 13
April 2010, however the decision to arrest the plaintiff was already
made as early as 10h00, a fact conceded upon by the
second defendant.
In essence it is reasonable to say that when the decision to arrest
the plaintiff was made there was no valid
statement to rely upon.
[12]
In
a nutshell the defendants alleged that an offence of armed robbery
was committed and that the second defendant, who was a peace
officer
as defined in the Act, had fully satisfied himself that the plaintiff
was the perpetrator of the said offence. It is thus
alleged the
second defendant was as a result justified in arresting the
plaintiff.
Mr Spath was not called
as a witness although he was in court during the trial proceedings.
[13]
The
plaintiff’s version of the events leading to his arrest was
that, on 13 April 2010 at about 22h: 00; he was on duty at
Boschkop
Police station when his superior, the Station Commander, Mr Tekisho
called him to his office. At the station commander’s
office the
plaintiff found a number of policemen including Constable van der
Bergh.
[14]
The
station commander then informed him that the policemen were there to
arrest him in connection with armed robbery against one
Mr Spath. The
station commander read him his constitutional rights and thereafter
he was arrested. Constable van der Bergh then
arrested the plaintiff
and placed him on handcuffs. The plaintiff was then escorted out of
the police station to the police van.
On the way to the police
van the plaintiff was photographed by the newspaper photographer
whilst on handcuffs and the article
about his arrest with his
photograph was published in various newspapers. The plaintiff stated
that he was shocked and embarrassed
by his arrest.
[15]
The
plaintiff further testified that he requested the second defendant to
take him home to change from police uniform to his civilian
clothing.
He was transported at the back of a police van and driven home for a
change of clothing. When he got at the gate of his
home he requested
the other policeman to dial his cell phone for him; in order to call
his wife to bring clothes as he was in handcuffs.
His wife was
shocked to see him under arrest. His wife then brought him clothes
and he undressed and dressed outside his yard in
the open as he was
under arrest and not in a position to get inside the house. The
plaintiff stated that he was also humiliated
by this situation. The
plaintiff was later taken to Kameeldrift Police station where he was
detained.
[16]
The
plaintiff was detained for two days at the police station until he
was charged. On the third day the plaintiff appeared in court
where
he applied for bail and same was refused. During the plaintiff’s
first appearance he was handcuffed and was seen by
other policemen
who knew him. He described the whole experience as shocking,
humiliating and embarrassing. After 10 (ten) days
the plaintiff was
granted bail. On 7 December 2010 the charges were eventually
withdrawn against the plaintiff. Subsequent
to his release on bail he
reported for work, and he described the whole experience of meeting
his colleagues unsavoury and embarrassing.
Some of his colleagues
sympathised with him; a painful situation which aggravated his
feelings of indignity. The plaintiff
was then suspended with
full pay and then later called to a disciplinary hearing, however he
was finally reinstated.
[17]
The
plaintiff also testified that on 6 August 2009 the alleged day of the
armed robbery he was working at the police station as
a shift
commander and that he never robbed Mr Spath. On 6 August 2009 as part
of his duties, he attended to the complaint from
the Boschkop area
and patrolled the same area. He confirmed meeting Mr Spath for the
first time when he came to the police station
on 18 March 2010; when
he assisted him to certify his documents. The plaintiff denied that
he went to Mr Spath’s home on
11 April 2010.
[18]
The
plaintiff also stated that during the period of his suspension his
two little daughters who were 5 (five) and 3(three) years
old
respectively then asked him why he was no longer going to work. He
told them the truth and he stated that also caused him a
lot of pain
and degradation as a father and family man. The plaintiff further
stated that he spent R14, 000.00 on legal fees.
[19]
The
totality of the plaintiff‘s evidence was that at the time he
was arrested there was no sufficient evidence that he committed
armed
robbery. He stated that the only reason which led to his arrest is
the alleged positive identification by Mr Spath
who
described the suspect as:
“
lank
and stewig, hy het goed Afrikaans gepraat”
The
English translation is “
tall,
strong built and good Afrikaans speaking”.
The plaintiff further stated there was no sufficient identification
by the second defendant except for him acting on the description
provided by the complainant.
THE LAW
[20]
Section
40
(1)(b) of the
Criminal Procedure Act 51 of 1977
provides that, “
a peace officer may without warrant arrest any person whom he
reasonably suspects of having committed an
offence referred to in
Schedule 1”.
The
jurisdictional requirements for a lawful arrest are stated as
follows:
(i)
the
arrestor must be a peace officer;
(ii)
the
arrestor must entertain a suspicion;
(iii)
the
suspicion must be that the suspect committed an offence referred to
in schedule 1;
(iv)
the
suspicion must rest on reasonable grounds.
The
test to be applied is an objective test. In
Duncan
v Minister of Law and Order
[1]
the abovementioned jurisdictional facts were emphasised. See also
Nkambule
v Minister of Law and Order
[2]
.
[21]
For
the purposes of this judgment it would be appropriate to mention the
first three jurisdictional facts were indeed common cause
between the
parties. The fourth jurisdictional fact is what the plaintiff has
placed under attack. To decide what a
reasonable
suspicion
is, there must be evidence that the arresting officer formed a
suspicion which is objectively sustainable.
[3]
[22]
In
addition thereto, the circumstances giving rise to the suspicion must
be such as would ordinarily move a reasonable man to form
the
suspicion that the arrestee has committed a schedule 1 offence. In
the decision of
Mabona
and Another v Minister of Law and Order and Others
[4]
Jones J, said the following:
‘
Would
a reasonable man in the second defendant’s position and
possessed of the same information have considered that there
were
good 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 this 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, i.e. 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.
(my emphasis) 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 sufficient 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.’
[23]
In
Mvu
v Minister of Safety and Security and another
[5]
,
Wills J held:
“
the
test is not whether a policeman believes that he has reason to
suspect, but whether on an objective approach, he in fact has
reasonable grounds for his suspicion. Furthermore, not only must the
arrestor prove that he had reasonable grounds for believing
that the
arrestee has committed an offence listed in the Schedule but
also that he had reasonable grounds for believing that
the arrestee
had the mental element for committing the offence”.
[24]
The
peculiar circumstances of a particular case the arresting officer is
presented with will therefore determine whether such suspicion
would
be reasonable or not. The test as to whether the suspicion of the
person effecting the arrest is reasonable must be approached
objectively.
[6]
[25]
The
question then to be answered; is what was the reasonable suspicion
entertained by Constable van der Bergh on the day in question?
He
responded to an instruction by his superior that there was a sworn
statement by only one person positively who had identified
the
plaintiff as a suspect in an armed robbery in an incident which
involved five people. Nothing was placed before me as
to why
was the identification parade not held nor why were the other four
victims of the armed robbery not questioned about the
plaintiff’s
identity. It was my observation that the plaintiff is not tall and
neither strong built, having regard to his
identity a thorough
identification was required. Any man who is tall, strong built
and good Afrikaans speaking could have
been a suspect.
[26]
A
peace officer who relies on section 40(1) (b) has to prove all the
jurisdictional facts in that section. Once these facts
are
present the discretion whether or not to arrest then arises. The
decision to arrest must be based on the intention to bring
the
arrested person to justice and the discretion so exercised must be to
arrest in good faith, rationally and not arbitrarily.
It then
follows, once the jurisdictional requirement of a reasonable
suspicion is proved by the defendant, the arrest is
brought within
the ambit of the enabling legislation and thus justified.
In
this matter it is alleged that his suspicion was improperly formed,
and has been successfully proven.
[27]
The
evidence placed before me is to the effect that the decision to
arrest the plaintiff was made arbitrarily and/ or premised on
irrational reasoning; more particularly that the timing of the sworn
statement relied upon is questionable. Constable van der Bergh
on his
own testimony was told by General Sesweke to arrest the plaintiff. He
was the investigating officer, therefore a peace officer
required by
law to have formulated his own reasonable suspicion. It
therefore follows that the defendant failed to satisfy
that his
suspicion was reasonable to effect the arrest of the plaintiff.
The reasonable man would have analysed and assessed
the quality of
the information at his disposal critically, and he would not have
accepted it lightly or without checking it where
it can be checked.
In
casu
it
was not impossible to check as other witnesses were involved in the
alleged case of armed robbery. Whilst I acknowledge that
people’s
memory spans differ, but I cannot ignore the time lapse of
approximately 7 (seven) months between the commission
of crime and
the period of identification. In
casu
a
thorough identification and/or further corroboration was required.
Furthermore it is trite in cases involving the identity of
a suspect
to hold an identification parade.
[28]
I
am not persuaded that Constable van der Bergh had a reasonable basis
at all to arrest and detain the plaintiff as he failed to
properly
apply his mind that his suspicion was reasonable based on the facts
before him. His conduct fell far too short of
that expected of
a police officer in his position with the limited information he had
at his disposal. To exacerbate matters was
the preconceived decision
based on his superior’s instruction to arrest the plaintiff
without having examined the much relied
upon sworn statement at all.
QUANTUM
[29]
The
plaintiff was arrested during the course of his duty, being a police
officer himself. The arrest occurred in the presence of
his
colleagues and was published in newspapers. He was detained in police
custody for 10 (ten) days pending bail application. He
was forced to
undress and dress in open view outside his home, where he would have
been seen by his neighbours a humiliating and
degrading experience.
He was paraded in handcuffs in front of his wife and kids. He was
later suspended and hauled before
the disciplinary inquiry involving
his superiors and his colleagues being a policeman of long service
with a respectable rank.
During the period of his suspension he was
obliged to inform his little ones of his predicament an undoubtedly
traumatising situation.
[30]
In
Thandani
v Minister of Law and Order
[7]
van Rensburg J observed:
“
In
considering quantum ; sight must not be lost of the fact that
the liberty of the individual is one of the fundamental rights
of a
man in a free society which should be jealously guarded at all
times and there is a duty on our Court to preserve
this right against
infringement. Unlawful arrest and detention constitute a serious
inroad into the freedom and rights of an individual”.
[31]
Visser
and Potgieter, Law of Damages 2
nd
edition at page 475
outline
some of the factors to be taken into account in the awarding of
damages to include:-
“
The
circumstances under which the deprivation of liberty took place; the
presence or absence of improper motive or ‘malice’
on the
part of the defendant; the harsh conduct of the defendants, the
duration and the nature (e.g. solitary confinement) of the
deprivation of liberty; the status , age and health of the plaintiff;
the extent of publicity given to the deprivation of liberty;
the
presence or absence of an apology or satisfactory explanation of the
events by the defendant; awards in previous comparable
cases; the
fact that in addition to physical freedom, other personality
interests such a honour and good name have been infringed;
the high
value of the right to physical liberty; the effect of inflation; and
the fact that the
action
injuriarum
also
has a punitive function”.
[32]
In
Minister
of Safety and Security v Tyulu
[8]
Bosielo AJA (as he then was) commented:
“
In
the assessment of damages for unlawful arrest and detention it is
important to bear in mind that the primary purpose is not to
enrich
the aggrieved party but to offer him or her some much-needed solatium
for his or her injured feelings. It is therefore crucial
that serious
attempts be made to ensure that damages awarded are commensurate with
the injury inflicted. However, our courts should
be astute to ensure
that the award they make for such infractions reflect the importance
of the right to personal liberty and the
seriousness with which any
arbitrary deprivation is viewed in our law…..Although it is
always helpful to have regard to
awards made in previous cases to
serve as a guide such an approach if slavishly followed can prove to
be treacherous. The correct
approach is to have regard to all the
facts of the particular case and to determine the quantum of damages
on such facts”.
[33]
In
an unreported decision of the
Eastern
Cape High Court, per Jones J in Olgar v Minister of Safety and
Security [ ECD 18 December 2008 (case 608/07) at para 16]
,
the following was stated:
‘’
In
modern South Africa a just award of damages for wrongful arrest and
detention should express the importance of the constitutional
right
to individual freedom, and it should properly take into account the
facts of the case, the personal circumstances of the
victim, and the
nature, extent and degree of the affront to his dignity and his sense
of personal worth. These considerations should
be tempered with
restraint and a proper regard to the value of money, to avoid the
notion of an extravagant distribution of wealth
from what Holmes J
called the ‘horn of plenty’, at the expense of the
defendant.”
[34]
It
is fair to consider all relevant factors in the circumstances of this
case. The plaintiff was 50(fifty) years old when he was
arrested. He
is a lieutenant officer of more than 30(thirty) years of experience
in the South African Police Service. He experienced
excruciating
humiliation of being arrested at his work place in the presence of
his colleagues and in full view of the media which
captured and
published his arrest with his photograph. Thereafter he suffered the
further humiliation of changing clothes in the
open, possibly being
seen by his neighbours and in the presence of other policemen in his
company. He was seen by his wife
and kids in handcuffs and
transported at the back of the police van a very degrading experience
particularly for a policeman who
is supposed to uphold the law. He
was unlawfully deprived of his liberty for ten 10(ten) days and
described the indignity of his
detention and court appearances when
he had to face his colleagues as the worst experience of his life.
[35]
In
Seria
v Minister of Safety and Security and others
[9]
Meer J stated:
“
there
is no fixed formula for the assessment of damages for non-patrimonial
loss. It is recognised that a court has the power to
estimate an
amount ex aequo et bono and consequently enjoys a wide discretion
with, fairness as the dominant norm”
He
then awarded a plaintiff the sum of R50 000 for approximately twenty
(20) hours detention. In
Mbotya
v Minister of Police
[10]
,
Mageza AJ awarded plaintiff the sum of R55.000.00 for
unlawful arrest and detention of a period of two days.
[36]
In
Mvu
v Minister of Safety and Security and another
[11]
Willis J, following the caution in the Supreme Court Appeal matter of
The
Minister of Safety and Security vs Seymour
[12]
acknowledged the conservative approach of our Courts and awarded
damages in the sum of R30. 000.00 for a day’s detention.
In
casu
the
plaintiff was detained for 10(ten) days. It is common cause that the
value of the above mentioned amounts has increased.
It is
trite law that all awards are influenced by the final determination
of the specific facts of each case.
[37]
In
the premises I therefore make the following order:
The
first defendant is to pay the plaintiff:
1.
The
sum of R275. 000.00
2.
Interest
on the aforesaid sum, at
15.5%
from date of judgment to date of payment;
3.
Costs
of suit.
MALI
AJ
ACTING
JUDGE OF THE HIGH COURT
Date
of Hearing:
25 February 2014
Date
of Judgment:
3 May 2014
Counsel
for
Plaintiff:
Adv.: D Mtsweni
Instructing
Attorney for Plaintiff:
Ehlers Fakude Incorporated
Counsel
for Defendant:
Adv. Baloyi
Instructing
Attorney for Defendant:
State Attorney Pretoria
[1]
1986
(2) SA 805 (A): dictum at 818H-J applied
[2]
1993 (1) SACR 434
(T) AT 436 A-B
[3]
Mvu
v Minister of Safety and Security & Another 2009 (2) SACR (GSJ)
at [9]
[4]
1988
(2) SA 654
(SE): dictum at 658E-G applied
[5]
2009(6) SA 82
[6]
See
in this regard R v Van Heerden
1958 (3) SA 150
(T) at 152E
[7]
1991 (1) SA 702
(E) at
707B
[8]
209(5) SA 85 (SCA) AT 93 d-f
[9]
9165/2004 [2004]
[10]
(1122/10)[2012] ZAECPEHC 43
[11]
2009(6) 82
[12]
(2006) ZASCA 71