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[2014] ZANCHC 1
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Booi v Minister of Safety and Security (1402/08) [2014] ZANCHC 1 (28 February 2014)
IN THE HIGH COURT
OF SOUTH AFRICA
(NORTHERN CAPE
DIVISION, KIMBERLEY)
Case
No 1402/08
In
the matter between
HUBERT
TEBOGO
BOOI
.................................................................
Plaintiff
And
THE
MINISTER OF SAFETY AND SECURITY
.........................
Defendant
Heard
On: Between 15/03/2011 and 06/12/2013
Delivered
On: 28/02/2014
JUDGMENT
PAKATI
J
1.
The plaintiff, Mr Hubert Tebogo Booi, an
adult male pensioner, instituted two claims for damages against the
defendant, the Minister
of Safety and Security of the Republic of
South Africa (“the Minister”), for alleged wrongful
arrests and detentions.
In the first claim he was arrested on 01 May
2007 by Capt Mafa and other members of the South African Police
Services (“SAPS”),
without a warrant and detained on a
charge of rape and murder. In the second claim he was arrested by W/O
Henk Van der Merwe on
03 September 2007 and other members of the SAPS
on charges of theft and/or fraud. The plaintiff alleged that he was
humiliated
and deprived of his right to freedom and that his right to
privacy, dignity and bodily integrity were also violated. It was
confirmed
that during the commission of the offences on 16 April 2006
(first claim) and 28 July 2007 (second claim) the plaintiff was in
Goedemoed Prison in Aliwal North from 17 October 2005 to 21 June 2006
and in Kimberley police cells from 01 May 2007 to 31 July
2007 for
the murder charge.
2.
The defendant admitted the arrests and
detentions but pleaded that the arrests and the consequent detentions
were lawful and were
carried out in terms of s40 (1) (b) of the
Criminal Procedure Act 51 of 1977 (“the CPA”). The police
officials claimed
to have had reasonable suspicion that the plaintiff
committed the offences. The defendant pleaded further that the
further
detentions after he appeared in court were authorised by the
magistrate.
3.
The following facts are common cause: That
the plaintiff was arrested by Captain Mafa without a warrant on 01
May 2007; that his
residence was searched without a warrant; that he
appeared in court for the first time on 03 May 2007; that the charges
were withdrawn
against him on 31 July 2007; With regards to the
second claim it is also common cause that he was arrested by W/O Van
der Merwe
on 03 September 2007 without a warrant; that he first
appeared in court on 05 September 2007 and the charges were withdrawn
on
25 October 2007. It was not in dispute that the plaintiff was
brought to court within 48 hours of his arrest on both occasions.
THE
FIRST CLAIM
4.
The plaintiff testified that after midnight
on 01 May 2007 he was at his home with his mother, Ms Martha Booysen,
when he was arrested.
He was taken to Witdam Police Station. In the
morning around 08h00 Capt Mafa booked him out of the police cells and
took him to
his office at Transvaal Road Police Station. He
instructed W/O Koti and Capt Sebase to fetch a certain man known as
‘Pampoen’,
whose real name is Olebogeng Mokgoro, from
Kimberley Prison. He interrogated the plaintiff who gave him a
document confirming that
he was in prison at the time that the said
offences were committed and that his correctional officer was Mr Piet
Moss. Capt Mafa
refused to accept his explanation. He assaulted the
plaintiff and shocked him with electric wires while his head and face
were
covered with a black plastic bag thereby suffocating him. His
hands were cuffed and his feet manacled at the time
.
He was forced to sign a document composed by the captain containing a
version which he was told to repeat before the magistrate.
As the
pain was unbearable he succumbed and signed the document. He did not
know the deceased in the murder and rape charges.
5.
At about 14h00 on 02 May 2007 the plaintiff
was taken to Magistrate Williams to make a confession. He gave
details of how and when
the murder was committed as dictated to him
by Capt Mafa. The Magistrate noticed that his feet were swollen and
recorded that fact
and endorsed and directed on the detention warrant
(J7) that he should be taken to a doctor. However, Capt Mafa did not
comply
with the Magistrate’s directive. The plaintiff did not
reveal to the Magistrate that he was induced and assaulted to make
the confession because Capt Mafa had threatened him with further
assault if he did.
6.
Capt Mafa testified that the plaintiff
admitted having committed the offences in question. The plaintiff
described how he stabbed
the deceased using an object called an
awl/pricker (els) which was described as a long, sharp and small
instrument that is used
to mend shoes. That the plaintiff threw the
instrument away thereafter. Capt Mafa denied assaulting the plaintiff
in any manner.
He denied further that he unduly influenced him to
make a confession. He insisted that the plaintiff did not inform him
of his
alibi
at anytime between his arrest and detention otherwise he would not
have arrested him. This extract appears on the record of proceedings
before the Magistrate in Case Number B2486/07 on 04 June 2007:
“
BESKULDIGDE:
My Edelabaar, ek het eintlik ‘n probleem man. My Edelagbaar,
voor ek nou Regsverteenwoordiger gaan appoint My
Edelagbaar, want ek
hoor nou die Staat hierso maak nou om te sȇ die saak moet nou
weer uitgestel word vir verdere ondersoek.
Dan weet ek nie hoekom die
Staat die saak uitstel vir verdere ondersoek, dan die Ondersoek
Beampte hy weet vir ‘n feit dat
dit is ‘n verkeerde man
wat hulle gerearresteer het. Want daar is volle bewys dat dit is ‘n
verkeerde man wat hulle
gerearresteer het. Nou ek weet nie hoekom nou
moet die saak nou uitgestel word vir verdere ondersoek nie en ek sal
net gevra het
My Edelagbaar moet die…(onhoorbaar).
HOF: Het julle
nie ‘n verhoor van jou nie? Wat staan daar?
BESKULDIGDE:
My Edele… Beapmte ook wees.”
7.
The above is indicative of the fact that
the plaintiff intended to bring it to the attention of the Magistrate
that he was in Goedemoed
Prison when the graveyard murder took place
but the Magistrate failed to hear him out. He had the document in his
possession that
he pointed out to Capt Mafa during the interrogation.
According to Capt Mafa this information was brought to the court’s
attention for the first time on 25 July 2007.
8.
Capt Sebase testified that W/O Koti joined
him in Capt Mafa’s office. He noticed that the plaintiff walked
with difficulty.
During the interview he and W/O Koti sat in another
office opposite Capt Mafa’s. The door of Capt Mafa’s
office was
open. From where he sat he could see the plaintiff. About
an hour later Capt Mafa requested him and W/O Koti to arrange with
Const
Borraine to take the plaintiff to a Magistrate for a
confession, which Const Borraine did. They then left. Capt Sebase
denied that
Capt Mafa assaulted the plaintiff in any manner in his
presence. He also denied that he and W/O Koti went to the local
prison looking
for Pampoen. This concocted version was corroborated
by W/O Koti.
9.
According to W/O Koti Capt Mafa found him,
the plaintiff and W/O Sebase in Capt Mafa’s office. From the
waiting area where
he and Capt Sebase sat he could not see what
happened in Capt Mafa’s office because his back turned against
the wall. However,
he could hear that they were talking but could not
hear what their conversation was all about. He and Capt Sebase later
went to
their respective homes.
10.
Ms Seraline Louise Kock testified that the
plaintiff was an assistant driver in her and her husband’s taxi
business. She got
to know that at some stage the plaintiff was in
custody in connection with the graveyard murder case. On 14 October
2013 she sat
in court whilst Capt Sebase and W/O Koti testified in
the case before me in the High Court. Amazed at the denial of their
knowledge
of the identity of Pampoen, she went to Kimberley Prison on
15 August 2013 to make enquiries. She was furnished with a document,
SAPS 127, which plaintiff’s counsel, Mr Schreuder, handed in as
“Exh B1 and B2”, whose heading is ‘
Temporary
Transfer of Detainee/Sentenced Prisoner’
.
This document shows that on 02 May 2007 Capt Mafa requisitioned
Pampoen Therence Mokgoro regarding the graveyard murder. Capt
Sebase
received the said Pampoen into his custody from prison the same day.
The document bears Capt Mafa’s and Capt Sebase’s
signatures. The second page has Capt Sebase’s photograph. This
evidence was common cause or at least not disputed.
THE
SECOND CLAIM
11.
W/O Petrus Henk Van der Merwe testified
that he arrested the plaintiff on 03 September 2007 at 05h15 on
allegations of theft and/or
fraud. It was alleged that they stole a
bag containing a wallet, bank cards and a petrol card from a certain
lady in Kimberley
Hospital. Moses Setlaba, the then co-accused of the
plaintiff, was said to have informed W/O Van der Merwe that he
received the
petrol card from the plaintiff. He led W/O Van der Merwe
to the plaintiff’s residence where he was arrested.
According
to W/O Van der Merwe the plaintiff confirmed that Setlaba
was known to him; that the plaintiff pointed out the office where the
bag was removed. At no stage did the plaintiff inform him that he was
in prison during the commission of the said offence. On two
different
occasions he was taken to Bloemfontein for an identification parade
which was never held. Two witnesses who came to identify
Setlaba and
the plaintiff at a certain garage in Bloemfontein only pointed out
Setlaba but did not know the plaintiff. This evidence
was not
disputed.
12.
The plaintiff denied knowing Setlaba. He
testified that W/O Van der Merwe knew him since 2000. The warrant
officer accused him of
being the person depicted in a photo with the
alleged suspects. According to him the police targeted him because he
was exonerated
in two cases which W/O Van der Merwe investigated
against him.
13.
W/O Van der Merwe also investigated a
murder case referred to as ‘the Platfontein murder’ which
the plaintiff was charged
for during September 2009. He testified
that the plaintiff handed himself over to the police and admitted
having committed the
murder. According to W/O Van der Merwe the
plaintiff pointed out a murder scene 7 kilometres away from the
correct scene. He informed
Van der Merwe that he threw the deceased’s
property into a dam behind Witdam Police Station in Galeshewe which
was found
to be untrue. These charges were later withdrawn against
the plaintiff.
14.
The plaintiff further testified that in
2009 he knocked off from work at 1 Beach Road, Floors, and went home
in the company of Mr
Kok. At home his mother told him that the police
were as a matter of urgency looking for him. He and Mr Kok rushed to
the police
station where he was told that he was sought for a murder
case that happened at Platfontein. W/O Van der Merwe told him that he
at last got him. He denied knowledge of the murder in Platfontein.
15.
The onus of proving the lawfulness of the
plaintiff’s arrests and detentions rests upon the defendant to
be discharged on
a balance of probabilities. See
MINISTER
OF LAW AND ORDER AND ANOTHER v DEMPSEY
1988 (3) SA 19
(A)
at 38B-C; and
ZEALAND v MINISTER OF
JUSTICE AND CONSTITUTIONAL DEVELOPMENT AND ANOTHER
[2008] ZACC 3
;
2008 (2) SACR 1
(CC)
at paras 24 and 25. The defendant
seeks to discharge this onus by relying on s40 (1) (b) of the CPA in
respect of the arrests. It
provides:
“
40
Arrest by peace officer without a warrant
(1)
A peace officer may without a
warrant arrest any person –
(a)
…
(b)
[W]hom he reasonably suspects of
having committed an offence referred to in Schedule 1, other than the
offence of escaping from
lawful custody;
(c)
…”
16.
Chapter 2 of the Bill of Rights guarantees
that everyone possesses inherent dignity and to have their dignity
respected and protected.
These rights include the right to freedom
and security of the person and not to be deprived of freedom
arbitrarily or without just
cause. It also provides for the right to
privacy and the right to be free from all forms of violence. Kriegler
J in
EX PARTE MINISTER OF SAFETY AND
SECURITY AND OTHERS: IN RE S v WALTERS
2002 (2) SACR 105
(CC)
at 123 para 30 held:
“
[30]…The
arrest of a person by definition entails deprivation of liberty and
some impairment of dignity and bodily integrity.”
17.
Van Heerden JA in
DUNCAN
v MINISTER OF LAW AND ORDER
1986 (2) SA 805
(A)
at
818 G-H set out the jurisdictional facts which must exist before the
power conferred by s40(1) (b) of the CPA may be invoked
as follows:
“
(1)
The arrestor must be a peace officer.
(2)
He must entertain a suspicion.
(3)
It must be a suspicion that the
arrestee committed an offence referred to in Schedule 1 to the Act
(other than one particular offence).
(4)
The suspicion must rest on
reasonable grounds.
If
the jurisdictional requirements are satisfied, the peace officer may
invoke the power conferred by the subsection, ie, he may
arrest the
suspect. In other words, he then has a discretion as to whether or
not to exercise that power.”
18.
It is a statutory fact that murder, rape
and theft and/or fraud are offences contained in Schedule 1 of the
CPA. Capt Mafa and W/O
Van der Merwe were senior officials and peace
officials and were therefore authorised in terms of s40 of the CPA to
arrest the
plaintiff without a warrant on condition they reasonably
suspected that the plaintiff committed a Schedule 1 offence. The
crucial
issue therefore is whether the defendant’s servants had
a reasonable suspicion that the plaintiff committed the said offences
as pleaded.
19.
Regarding the first claim Capt Mafa
testified that he received information from an informer that the
plaintiff committed the rape
and murder and intended fleeing to
Kuruman. On the strength of this information he and the other members
proceeded to arrest the
plaintiff and searched his home. During the
arrest Capt Mafa told the plaintiff where and when the murder took
place, ie 18 April
2006 at the cemetery. However, he did not inform
him what the name of the deceased was until they got to the police
station. The
plaintiff’s testimony was that he did not know who
the deceased was. This was never disputed.
In
MABONA AND ANOTHER v MINISTER OF LAW AND ORDER AND OTHERS
1988 (2) SA
654
(SE)
at 658E-H Jones J stated:
“
The
test of whether a suspicion is reasonably entertained within the
meaning of s40 (1) (b) [of the
Criminal Procedure Act, 51 of 1977
],
is objective (S v Nel and Another
1980 (4) SA 28
(E) at 33H). Would a
reasonable man in the second defendant’s position and possessed
of the same information have considered
that there were good and
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 his
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,
ie 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. 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
sufficiently 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.”
20.
Capt Mafa conceded that the only
information he had against the plaintiff was the informer’s
report to him and the now flawed
confession. The plaintiff was
arrested at his home. In my view Capt Mafa should have considered it
necessary to check out the information
that the plaintiff was about
to abscond to Kuruman. Finding him at home should have created a
doubt in his mind and must have acted
with greater circumspection
before arresting him. He did not analyse and assess the quality
of the information at his disposal
critically. This information was
not elaborated upon nor was it corroborated.
21.
Ordinarily, a police arrest is based upon a
sworn complaint sometimes supported by sworn statements by other
witnesses. In the case
of an informer, however, who insists on
anonymity his/her identity is jealously protected by the police and
the statement safeguard
is therefore lacking. This does not mean that
the police cannot arrest a suspect without a warrant in the absence
of sworn statements
implicating him. Each case is dealt with
according to its own merits. I am of the view that where no sworn
statement is available
a police officer will less readily entertain a
suspicion. See
Mabona supra at
659B-C
.
22.
The same can be said for the evidence of
W/O Van der Merwe who testified that he arrested the plaintiff after
he received information
from Setlaba that the plaintiff was involved
in the commission of the theft and/or fraud. W/O Van der Merwe
conceded that that
was the only information he had at his disposal
when he arrested the plaintiff. In my view it was not possible for
the plaintiff
to have pointed out the office where the bag was stolen
because he was in custody when the theft was committed. The other
disturbing
factor is that Setlaba’s warning statement contained
in Exh A mentioned nothing about the plaintiff and his involvement in
the crime charged to reinforce what W/O Van der Merwe said.
23.
In my view W/O Van der Merwe also did not
critically examine the information or follow it up. He failed to even
make sure that the
two identification parades in Bloemfontein took
place. He confirmed that he never personally spoke to Capt Oelofse
who was responsible
to arrange the parades and also failed to
question why they were called off. He was present when the witnesses
at the garage failed
to point out the plaintiff as a suspect. It is
not clear what inferences Capt Mafa and W/O Van der Merwe drew from
the facts at
hand which caused them to suspect the involvement of the
plaintiff in the commission of the crimes. W/O Van der Merwe was very
evasive in answering simple and straightforward questions. He refused
to concede that the prosecutor was concerned as regards how
the
plaintiff was implicated in this matter even though there was an
entry in the investigation diary on 05 September 2007 to the
following effect: “
Hoe word die
beskuldigdes verbind? Hulle is nȇrens deur die getuies uitgewys
nie en dit is nie op die rol geplaas nie.”
24.I
am satisfied that no grounds for the suspicion existed let alone a
reasonable suspicion that could have been entertained for
the
plaintiff’s arrest on both occasions.
25.
The events leading to the making of the
confession by the plaintiff have a bearing on whether the plaintiff
was assaulted and induced
to make the said confession. The plaintiff
testified that during the course of the interrogation Capt Mafa
assaulted him in an
attempt to extract an admission that he committed
the graveyard murder. He said that during the interrogation Capt Mafa
completed
a document titled ‘
Verklaring
Rakende Onderhoud Met Verdagte’.
In para 7 of this document Capt Mafa noted the following: “
Ek
het aan die verdagte gevra om die beserings aan my te wys en ek het
die volgende waargeneem: Geen beserings nie.”
He
signed it at 12h00 on 02 May 2007. Capt Mafa arrested the plaintiff
on 01 May 2007 but recorded no injuries. The next morning
at 08h00 he
had him in his office for interrogation. The plaintiff was thereafter
brought before Magistrate Williams at 14h15 on
the same day of the
confession.
26.
Magistrate Williams recorded that the
plaintiff’s feet were swollen. It does not make sense that the
Magistrate would note
some injuries if there were none. This shows
that the plaintiff’s feet were indeed swollen. This reinforces
the plaintiff’s
version that he was injured before he was taken
to the Magistrate to make the purported confession. When Capt Mafa
was asked to
explain this he insisted that the plaintiff had no
injuries.
27.
Capt Sebase and W/O Koti also denied the
assault on the plaintiff. These desperate efforts to convince the
Court that no assault
on the plaintiff took place are in vain and
false. The evidence clearly shows that they conspired to save Capt
Mafa’s skin.
Their evidence was unreliable taking into account
their false denial that they went to prison to fetch Pampoen on Capt
Mafa’s
instructions. The uncontroverted evidence of Ms Kock
shows in fact that they gave perjured evidence.
28.
The plaintiff’s evidence that Capt
Mafa dictated his statement that he made to the Magistrate has
significance when one has
regard to the post mortem report of the
deceased conducted by Dr Denise Lourens. According to the doctor
there is no indication
therein that an awl that was mentioned in the
confession was used during the commission of the murder. When Capt
Mafa was asked
to reconcile this finding with the alleged confession
he was constrained to concede that neither the post mortem nor the
docket
mentioned the awl as the probable murder instrument. He
testified that he did not look at the post mortem report but Dr
Lourens
told him about the awl. When he could not take the cross
examination punches anymore he changed his version and said: “
Maybe
I confused the cases because I move with a lot of cases.”
He was very evasive and kept adjusting his version when asked whether
Dr Lourens mentioned the word ‘els’ in any other
case. In
this instance it was clear that Capt Mafa tried to mislead the Court
and was deliberately untruthful. I am satisfied that
the plaintiff
was assaulted by Capt Mafa who also composed what to tell the
Magistrate.
29.
The following allegations can be gleaned
from the plaintiff’s particulars of claim:
“
[6]
Since his arrest on [01] May 2007 until the date of his release on 31
July 2007, Plaintiff was unlawfully kept in custody by
Captain Mafa
and other members of the SAPS whose identities are unknown to [the]
Plaintiff.
[9]
Since his arrest on [02] September 2007 until his release on 25
October 2007, [the] Plaintiff was unlawfully kept in custody
by
members of the SAPS whose identities are unknown to [the] Plaintiff.”
30.
It is important at this stage to
distinguish between wrongful and unlawful arrest on the one hand and
malicious arrest on the other.
Margo J in
NEWMAN
v PRINSLOO AND ANOTHER
1973 (1) SA 125
(W)
at
127H-128A expounded the difference which was approved in
REYLANT
TRADING (PTY) LIMITED v SHONGWE AND ANOTHER
[2007] 1 ALL SA 375
(SCA)
and stated:
“
Stated
shortly, the distinction is that in wrongful arrest, or false
imprisonment, as it is sometimes called, the act of restraining
the
plaintiff’s freedom is that the defendant or his agent for
whose actions he is vicariously liable, whereas in malicious
arrest
the interposition of a judicial act, between the act of the defendant
and the apprehension of the plaintiff, makes the restraint
on the
plaintiff’s freedom no longer the act of the defendant but the
act of the law. The importance of the distinction is
that, in the
case of wrongful arrest, neither malice nor absence of justification
need be alleged or proved by the plaintiff, whereas
in the case of
malicious arrest it is an essential ingredient of the plaintiff’s
cause of action, which must be alleged and
proved by him, that the
defendant procured or instigated the arrest by invoking the machinery
of the law maliciously”.
31.
A consideration of when it would be
competent for a court to pronounce upon matters not raised in the
pleadings was pronounced by
Holmes JA in
SOUTH
BRITISH INSURANCE COMPANY LIMITED v UNICORN SHIPPING LINES LIMITED
1976 (1) SA 708
(A)
at 714G as follows:
“
However,
the absence of such an averment in the pleadings would not
necessarily be fatal if the point was fully canvassed in evidence.
This means fully canvassed by both sides in the sense that the Court
was expected to pronounce upon it as an issue.”
Nowhere
in the pleadings or was any evidence led to prove malicious
prosecution by the plaintiff against the defendant.
32.
The District Court record (Exhibit A)
showed that on 03 May 2007 when the plaintiff appeared in court for
the first time his case
was postponed for a formal bail application
and further investigations. This happened because Capt Mafa opposed
his bail at that
stage because he claimed that he had not verified
the plaintiff’s address. The evidence revealed that Capt Mafa
and the other
members arrested the plaintiff at his home. There could
have been no uncertainty about his residential address. It is
therefore
inexplicable why Capt Mafa still needed to verify his
address. On 13 June 2007 the case was still on the roll for the same
reason
and postponed to 13 July 2007. It was only on 02 July 2007
that Capt Mafa recorded in the investigation diary (part of Exh A)
that
the plaintiff could be granted bail of R1000-00. The prosecutor
was also expected to analyse and evaluate the information in the
diary and decide whether to oppose or support the granting of bail in
the circumstances.
33.
When an accused person is brought before a
magistrate by the prosecutor and the magistrate orders his further
detention that is
the role of the court and not of the arrestor or
the police. Harms DP in
MINISTER OF
SAFETY AND SECURITY v SEKHOTO AND ANOTHER
2011 (5) SA 367
(SCA)
at
para 42 stated:
“
[42]
While it is clearly established that the power to arrest may be
exercised only for the purpose of bringing the suspect to justice,
the arrest is only one step in that process. Once an arrest has been
effected, the peace officer must bring the arrestee before
a court as
soon as reasonably possible; and at least within 48 hours, depending
on court hours. Once that has been done, the authority
to detain,
that is inherent in the power to arrest, is exhausted. The authority
to detain the suspect further is then within the
discretion of the
court.”
See
also
ISAACS v MINISTER VAN WET EN ORDE
1996 (1) SACR 314
(A)
where the court
found that the unlawful detention of an accused ceases when the
magistrate issues the detention order in terms
of
s50
(1) of the CPA.
The relevant part of
s50
(1) provides as follows:
“
50
(1) (c) Subject to paragraph (d) if such an arrested person is not
released by reason that –
(i)
[N]o charge is to be brought against
him or her; or bail is not granted to him or her in terms of
section
59
or
59A
, he or she shall be brought before a lower court as soon as
reasonably possible, but not later than 48 hours after the arrest.”
34.
Needless to say, it is the function of the judicial officer to guard
against the accused being detained on insubstantial or
improper
grounds and, in any event, to ensure that his detention is not unduly
extended. See
MINISTER OF LAW AND ORDER
v KADER
1991 (1) SA 41
(A)
at 51C.
35.
The defendant correctly persisted that the
plaintiff’s unlawful detentions ceased when the Magistrate
authorised further detention
of the plaintiff. The plaintiff’s
detention therefore from 04 May 2007 to 31 July 2007 and 06 September
2007 to 25 October
2007 cannot be attributed to the defendant
considering that it is the Magistrate who ordered the further
detention at the prosecutor’s
request. The plaintiff is only
entitled to damages from 01 May 2007 to 03 May 2007 in respect of the
first claim and from 03 September
to 05 September 2007 for the
subsequent claim. The arrests and detentions of the plaintiff on the
initiative of the police are
approximately three and a half days.
36.
It is evident that the arrests and
detentions of the plaintiff for the period just determined were not
justified and therefore unlawful.
The defendant therefore failed
miserably to discharge the onus of proving that the arrests and
detentions were lawful.
37.
I now turn to the issue of quantum
.
The plaintiff in his particulars of claim alleged that ‘he
suffered damages in the amount of R500 000-00 which amount
is a
global amount and cannot be reasonably be apportioned to the
individual rights violated.’ In
MINISTER
OF SAFETY AND SECURITY v TYULU
2009 (5) SA 85
(SCA)
at para 26 Bosielo AJA held:
“
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 the damages awarded are commensurate
with the injury inflicted. However, our
courts should be astute to
ensure that the awards they make for some infractions reflect the
importance of the right to personal
liberty and the seriousness with
which any arbitrary deprivation of personal liberty is viewed in our
law. I readily concede that
it is impossible to determine an award of
damages for this kind of mathematical accuracy. 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 (Minister of Safety and Security v Seymour
2006 (6) SA 320
(SCA) at 325 para 17; Rudolph and Others v Minister of Safety and
Security and Another
2009 (5) SA 94
(SCA) ([2009] ZASCA 39) paras 26
– 29).
38.
In the award of damages previous
jurisprudence should be used as a guideline only taking into account
that the appropriate award
is in the discretion of the court. In
PROTEA ASSURANCE CO. LTD v LAMB
1971 (1)
SA 530
(A)
at 535B-D Potgieter JA had
this to say:
“
The
further question that arises is to what extent, if any, this court
should be guided in its assessment of general damages by
awards in
previous decided cases. In the case of
Sigournay
v Gillbanks,
1960 (2) SA 552
(AD)
at p556, SCHREINER JA, is reported to have said:
“
Nothing
like a hard and fast rule or definite standard is to be found in a
matter so closely linked with the particular circumstances
of each
case, but some guidance is to be derived from the notion that
fairness to both parties is likely to be served by a large
measure of
continuity in size of awards, where the circumstances are broadly
similar. As was said by Innes CJ, in Hulley v Cox
1923 Ad 234
at p
246, a comparison with other cases though never decisive is
instructive. I respectfully agree in this connection with the
statement of Ormerod, LJ in Scott v Musial,
(1959) 3 WLR 437
at p
446, that there emerges ‘a general idea of the sort of figure
which, by experience, is regarded as reasonable in the
circumstances
of a particular case’ to which general idea a Court of appeal
should give regard.”
39.
I take into consideration that the plaintiff was unduly influenced to
make a confession. He testified to physical assault on
him by Capt
Mafa. However, no claim for assault was included by the plaintiff in
his pleadings. It only came out during cross examination
by Mr Botha,
who initially appeared for the plaintiff, and when the plaintiff gave
evidence. The plaintiff described how Capt Mafa
ordered him to take
off his clothes and left him with short pants. He poured cold water
over him and caused him to fall on his
back from a chair whilst his
head and face were covered in a plastic bag. He was electrocuted
while he was handcuffed. In these
circumstances, in my view, this was
degrading treatment. Nevertheless, the plaintiff greatly exaggerated
the assault. The Magistrate
only noticed his swollen feet as the
other forms of assault did not leave any physical scars but there was
psychological trauma
as well.
40.
I am bitterly disappointed that this matter
was not settled out of court. The arrests and the detentions were
obviously unlawful.
When Mrs Seraline Kock produced the documentary
evidence that Capt Mafa and his team gave perjured evidence there was
no reason
for the defendant to litigate further on the merits. It was
a sheer waste of taxpayers’ money.
41.
Regard being had to previous awards and
what the plaintiff went through and the perjured evidence given by
the police, I am of the
view that an award of R270 000-00 would
be an appropriate award.
42.
It would be a travesty of justice if costs
were not awarded on a punitive scale. I must show my displeasure for
the persisting conduct
by the police to fabricate evidence and to try
and mislead this Court and the Magistrates Court.
In
the result I make the following order:
1.
Judgment is granted for the
plaintiff, Hubert Tebogo Booi, in the sum of R270 000-00 (two hundred
and seventy thousand rand) in
respect of the unlawful arrest and
detention for the period 01 May 2007 to 03 May 2007 and 03 September
2007 to 05 September 2007.
2.
The defendant, the Minister of
Safety and Security, is ordered to pay interest on the awarded
damages at the rate of 15.5% per annum
calculated from 15 days after
date of judgment to date of payment.
3.
The defendant is ordered to pay the
costs of this action on an attorney and client scale.
BM
PAKATI
JUDGE
On
Behalf of the Plaintiff:
Adv
J.J. Schreuder
Instructed
by:
GARRY BOTHA
ATTORNEYS
On
behalf of the Defendants:
Adv
S. Erasmus
Instructed
by:
OFFICE
OF THE STATE ATTORNEYS