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[2013] ZAGPPHC 114
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Mapuranga v Minister of Police (34441/2011) [2013] ZAGPPHC 114 (15 May 2013)
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT,
PRETORIA
(REPUBLIC OF SOUTH AFRICA)
Case No: 34441/2011
DATE:15/05/2013
In
the matter between:
MAPURANGA JEVAS (ALIAS JEVAS
MPOFU)
........................................................
Plaintiff
and
THE MINISTER OF
PEOPLE
.......................................................................................
Defendant
JUDGEMENT
MAKHUBELE
AJ
INTRODUCTION
[1]
The plaintiff (Jevas) is an unemployed Zimbabwean national who
according to the particulars of claim, resides at Plot 198,
Buffelsdrift Nature Reserve, Pretoria. He instituted action against
the Minister of Police (Defendant ) and claimed payment of an
amount
of R240 000 ,00 (Two hundred and fourty thousand rand) for damages he
suffered as a result of his arrest and detention which
according to
him was unlawful .
[1.1]
The trial commenced on 31 January and adjurned on 01 February 2013.
Counsel submitted heads of argument on 18 and 01 March
respectively.
Plaintiff filed replication to defendant’s submissions on 05
March 2013.
[2]
In his particulars of claim, Jevas alleged that he was arrested by
unknown members of the “South African Police Force
on 04
January 2010 at Kameeldrift police station without a warrant and was
detained there until he was released on Friday, 08 January
2010
*unconditionally, without been charged or brought before a court of
law” .
[3]
The defendant filed a special plea and plea on the merits on 23
September 2011. In terms of the special plea, defendant alleged
that
plaintiff has failed to give a notice in terms of section 3(1)(a) of
the Institution of Legal Proceedings Against Certain
Organs of State
within the prescribed six months period after the occurrence of the
incident that gave rise to the cause of action.
The
plaintiff filed a substantive application for condonation a day
before the matter was heard. Defendant did not oppose the application
and condonation was duly granted.
[4]
On the merits, defendant;
[4.1]
placed in issue the plaintiffs name and alleged that the name given
to the arresting officer was "Sylvester Nothing turns
on this.
[4.2]
admitted the arrest with the qualification that it was lawful and it
took place on “05 January 2010 at 12:00 at Buffelsdrift
Nature
Reserve by Constable E K Diale on a reasonable suspicion of being an
illegal immigrant in terms of
section 41
of the
Immigration Act, No
13 of 2002
”.
[4.3]
pleaded that plaintiff was “lawfully detained in terms of
Section 34(2)
read with
Section 41
of the aforesaid Act until 8
January 2010 At Kameeldrift Police Station,.
[4.4]
pleaded that it had no knowledge as to whether plaintiff was
released, charged or brought before court. However, the plea
went on,
plaintiff was taken to Home Affairs at 09:30 on 08 January 2010 for
deportation.
[5]
Two trial bundles, A
1
and B
2
were handed in and references were made therein throughout the
proceedings.
[6]
I was advised at the commencement of the proceeding
3
that the parties had agreed that there should not be a separation of
issues in terms of Uniform
Rule 33(4)
. The trial proceeded on both
merits and quantum.
ISSUES
FOR DETERMINATION
[7]
The date of arrest was placed in issue by the defendant. Plaintiff
alleges that he was arrested on 04 January 2010, however,
he has not
substantiated this. On the other hand, defendant has submitted
documents to support its contention that the date of
arrest is 05
January 2010. It appears from plaintiffs heads of argument that there
is a concession that this is the correct date.
I therefore accept the
version of the defendant that plaintiff was arrested on 05 January
2010. In any event, plaintiff did not
adduce any evidence in rebuttal
thereof.
The
remaining issues are:
[7.1]
The place where the arrest took place.
[7.2]
The lawfulness of the arrest and detention.
[7.3]
The. quantum of damages should the arrest and detention declared
unlawful.
ONUS
[8]
Dendant has admitted that plaintiff was arrested and remained in
custody from 05 to 08 January 2010. This is all that the plaintiff
was required to prove. The onus
4
is then on the defendant to justify the lawfulness of the arrest and
deprivation of freedom.
EVIDENCE
[9]
Mr Ekele Kissinger Diale testified on behalf of the defendant. His
evidence in chief was briefly as follows:
[9.1]
He is a constable with nine years experience and he is stationed at
Kameeldrift Police Station.
[9.2]
On 05 February 2010 he was busy with his duties amongst which was
patrols and attending to complaints.
He
received a complaint from Buffelsdrift Nature Reserve about one of
the residents who, it was alleged, brought workers into the
complex
without registering them at the gate. This, it was alleged was a
contravention of the rules of the Home Owners Association.
[9.3]
He could not remember the complainant or the alleged transgressor of
the rules. He left the police station with the complainant
though.
[9.4]
When they arrived at the transgressors house, they found a male
person working at the garden. The person introduced himself
as
Sylvester Mpofu
5
.
Diale informed him about the purpose of their visit. He realized that
the person did not understand Sepedi. He then addressed
him in
English. He established that the person was from Zimbabwe. He asked
him to produce documents that entitled him to be in
South Africa.
[9.5]
Plaintiff informed Diale that his documents were at his residence, in
East Lynne. Diale asked him to accompany them
6
to East Lynne, about 20 kilo metres from Buffelsdrift.
[9.6]
When they reached the destination, plaintiff found that the door was
locked. The key was with his brother who had gone to
Mamelodi. They
did not go to Mamelodi because plaintiff claimed that he did not know
the exact place his brother had gone to.
[9.7]
He took plaintiff to the police station because in any event it was
not his responsibility to go to East Lynne with plaintiff.
He was
just helping him to get the documents that entitled him to be in
South Africa. Plaintiff, according to Diale was supposed
to have his
documents in his possession so that he could produce them whenever he
was asked to.
[9.8]
He detained him at the police station for Home Affairs to fetch him
for purposes of investigating and verifying if indeed
he had
documents that entitled him to be in South Africa. The intention was
not to take him to court.
[9.9]
When asked how he effected the arrest, Diale indicated that he
informed plaintiff that he was under arrest and proceeded to
complete
the relevant documentation, namely SAP 3A and 3B and the immigration
form. He referred to Bundle B.
[9.10]
The Notice of Rights in page 2 was completed by one Mr Maphakane who
was assisting him. This was done on 05 January 2010,
the date
inserted therein.
[9.11]
The Preamble to and the Statement7 were completed by him whilst
plaintiff was at the holding cells. He confirmed that the
plaintiff
provided him with his personal details such as his name and age. The
statementfform in page 5 of the bundle ) was completed
on 05 January
2010. The copy in the bundle has a date stamp of 24 May 2011 because
that is the date on which it was certified.
[9.12]
He also completed the warrant of detention in page 6 of Bundle B in
order to detain plaintiff to allow Home Affairs officials
to proceed
with the investigations.
[9.13]
He also completed the form titled " Arrest of illegal foreigner
in terms of
section 41
and
Regulation 43
of the
Immigration Act\ He
confirmed that plaintiff was in the waiting cells when this form was
completed. The waiting cell is in the charge office and plaintiff
gave him answers to all the questions in the form, such as duration
in the country and his home language. Plaintiff confirmed,
when
asked, that he understood English. Plaintiff signed the form under
“illegal immigrant”. He did not tell him that
his real
name is Javas Mapuranga. This is the reason why this name does not
appear in all the forms he completed.
[9.14]
Diale was asked to explain the “X” marks in the form that
appears in page 8 of Bundle B. He explained that these
are the
reasons why he decided to arrest the plaintiff after completion of
the interview
7
.
[9.14.1]
Plaintiff did not produce a valid passport with visas or work permit
on request.
[9.14.2]
Plaintiffs passport had expired because he failed to produce it on
request.
[9.14.3]
Plaintiff admitted that he was not in possession of a valid passport.
[9.14.4]
Plaintiff acknowledged that he was not born in the
Republic
of South Africa.
[9.15]
When asked how Home Affairs would know that he had detained plaintiff
at Kameeldrift, Diale explained that they (police)
inform them by
telephone.
[9.16]
He believed that plaintiff did not have a permit to reside in South
Africa because he failed to produce it when he was asked
to at
Buffelsdrift. He noted a copy of plaintiffs passport in page 1 of
Bundle B. He denied having seen it at the police station
on the day
he arrested plaintiff.
[9.17]
His counsel asked him what his response would be if it were to be
argued that plaintiff was arrested at the instance of the
complainant
and that the signature attributed to plaintiff in the forms were
forged. Diale maintained that he arrested plaintiff
after he, as a
police offer had asked him certain questions and not because he was
told by someone to do so . He denied that plaintiffs
signature was
forged. He did not know plaintiff before the day in question.
[10]
Cross examination of Diale yielded the following facts:
[10.1]
He could not remember the name of the complainant.
[10.2]
He did not record the complaint in the Occurence Book, his diary, nor
did he take a statement
[10.3]
He admitted that the complaint had no “criminal smell on it”,
and that it was an issue that fell within the mandate
of the Home
Owners Association. He maintained that as a police offer he felt that
he had to accompany the complainant to help the
parties to resolve
it.
[10.4]
He admitted that he did not have knowledge of the rule that was
allegedly transgressed, nor did he have sight of the rules
. He did
not ask for a copy of the rules to verify if the complaint was a
transgression of the rules. He also could not remember
the name of
the alleged transgressor.
[10.5]
He could not remember whether his colleague was male or female.
[10.6]
He could not remember whether the complainant (put to him as a Mr
Ras) remained in his vehicle whilst he talked to the plaintiff.
[11]
Diae contradicted his own version (evidence m chief] and Defendant s
plea that plaintiff was arrested at the police station
after the
interview in terms of
section 41
. When asked under cross examination
when exactly did he arrest plaintiff, Diale gave the following
explanations:
[11.1]
He found plaintiff at the alleged transgressor’s house. He
asked his whereabouts and he was informed that he was not
available.
He told the complainant that the transgressor is not home. He does
not know what happened to the complainant after he
told him this.
[11.1]
He and his colleague did not return to the police station after being
informed that the transgressor is not available. They
returned to
where the plaintiff was and asked him about his documents. His
answers as to where they arrested plaintiff were not
consistent. At
some point he said at Buffelsdfrift where they found him. He later
changed and said after they returned from East
Lynne and then he
changed again and said he was arrested at Buffelsdrift.
It
appears, from the contradictory responses that when they went to East
Lynne plaintiff was placed on terms. He would be let off
if they
found the documents they were looking for at East Lynne.
[12]
Counsel for the plaintiff informed Diale that Plaintiff, if he
testifies, would make certain assertions about how the police
arrived
at his workplace, discussed with his employer and how he was
arrested. Plaintiff did not testify and as such I will not
accept his
alleged version that has not been tested under cross examination by
defendant
It
was put to Diale that plaintiff will testify that:
[12.1]
He was asked by Mr Ras to make certain that plaintiff did not
return
to the nature reserve. Diale denied this.
[12.2]
The alleged transgressor , Mr Brand was at home when the police
arrived. He called plaintiff who was in the house at the
time. He
denied this.
[12.3]
Mr Ras addressed Mr Brand and informed him that the police were there
to arrest and take away the plaintiff because he was
a trespasser in
the nature reserve. He denied this.
13.
Diale could not remember a conversation between Mr Ras and Mr Brand
about the home owners rules. He also could not remember
his
conversation with Mr Ras as they were leaving the nature reserve.
[13.1]
It also transpired during cross examination that Diale did not know
the procedures of the
Immigration Act, in
particular how
section 41
operates. According to him, the arrest comes before the interview. He
admitted that he does not have knowledge of the provisions
of
section
34(2)
, despite the fact that he completed forms outlined above in
this regad. He also indicated that he would not arrest someone who
informs him that he is a South African citizen, even if he does not
have documents to prove this.
[14]
Diale could not explain why certain portions of the forms he
completed were not filled in. For example, the space where it
should
indicated to whom it is addressed was left blank.
He
also did not hand the form to an immigration officer because they are
not stationed at the police station. He left the forms
at the charge
office (Client Service Centre).
[15]
He could not explain why he declared under oath that he arrested
plaintiff after the interview when in fact he arrested him
at
Buffelsdrift.
[16]
Defendant closed its case,
[17]
The plaintiff closed his case without testifying or calling
witnesses.
LEGAL
FRAMEWORK
[18]
The Immigration Act, 13 of 2002 (the Act) and Regulations pursuant
thereto regulate the arrest, detention and deportation of
illegal
immigrants.
The
Act makes provision for and distinction between persons who are
suspected of being illegal immigrants and those who , as a fact
have
already been declared as such. This distinction is very important as
it will become clear hereunder.
[19]
Section 41 creates a mechanism of identifying persons suspected of
being illegal immigrants, and how they are to be dealt with
pending
verification of their legal status.
Section
34 empowers immigration officers to arrest and prescribes the period
of detention for certain categories of illegal immigrants.
[20]
It is necessary, for the sake of completeness, to quote the relevant
sections :
34
Deportation and detention of illegal foreigners
(1)
Without the need for a warrant, an immigration officer may arrest an
illegal foreigner or cause him or her to be arrested, and
shall,
irrespective of whether such foreigner is arrested, deport him or her
or cause him or her to be deported and may, pending
his or her
deportation, detain him or her or C cause him or her to be detained
in a manner and at a place determined by the Director-General,
provided that the foreigner concerned —
(a)
shall be notified in writing of the decision to deport him or her and
of his or her right to appeal such decision in terms of
this Act;
(b)
may at any time request any officer attending to him or her that his
D or her detention for the purpose of deportation be confirmed
by
warrant of a Court, which, if not issued within 48 hours of such
request, shall cause the immediate release of such foreigner;
(c)
shall be informed upon arrest or immediately thereafter of the
rights set out in the preceding two paragraphs, when possible
practicable and available in a language that he or she understands;
(d)
may not be held in detention for longer than 30 calendar days without
a warrant of a Court which on good and reasonable grounds
may extend
such detention for an adequate period not exceeding 90 calendar days,
and
(e)
shall be held in detention in compliance with minimum prescribed
standards protecting his or her dignity and relevant human
rights.
(2)
The detention of a person in terms of this Act elsewhere than on a
ship and for purposes other than his or her deportation shall
not
exceed 48 hours from his or her arrest or the time at which such
person was taken into custody for examination or other purposes,
provided that if such period expires on a non-court day it shall be
extended to four p.m. of the first following court day.'”
21.
Section 41(1) reads as follows:
“
When
so requested by an immigration officer or a police officer, any
person shall identify himself or herself as a citizen, permanent
resident or foreigner, and if on reasonable grounds such immigration
officer or police officer is not satisfied that such person
is
entitled to be in the Republic, such person may be interviewed by an
immigration officer or a police officer about his or her
identity or
status, and such immigration officer or police officer may take such
person into custody without a warrant, and shall
take reasonable
steps, as may be prescribed, to assist the person in verifying his or
her identity or status, and thereafter, if
necessary detain him or
her in terms of section 34”
SUBMISSIONS AND FINDINGS ON THE MERITS
[22]
As stated above, Defendant pleaded that the arrest and detention was
lawful and was effected in terms of section 41(1) read
with 34(2) of
the
Immigration Act.
[23
]
I agree with the submission of counsel for the plaintiff that this is
the case that the latter was supposed to meet. In fact defendant
maintained during the trial that the said sections authorized Diale
to arrest and detain the plaintiff.
[24]
In his written submissions, counsel for the defendant changed tune
and argued that the arrest and detention was in terms of
section 40(1
(i) of the
Criminal Procedure Act, 51 of 1977
which authorises a
peace officer to arrest, without a warrant, any person :
“
who
is reasonably suspected of being a prohibited immigrant in the
Republic in contravention of any law regulating entry into or
residence in the Republic"
[25]
Counsel for the plaintiff objected to defendant’s reliance on
the
Criminal Procedure Act on
the basis that this was not pleaded,
and it was not tested during cross-examination.
[26]
I agree with the submissions of counsel for the plaintiff in this
regard. It may be that the
Criminal Procedure Act authorises
such an
arrest, however, the arresting officer still have to explain how he
exercised his dicretion. I do not intend to waste time
on this issue,
but it is clear that on the evidence presented, Diale did not show
that he exercised a discretion.
[27]
As I have stated above, the
Immigration Act regulates
the arrest,
detention and deportation of illegal immigrants.
The
procedures that ultimately lead to the deportation of an illegal
immigrant are supposed to be carried out in terms of the
Immigration
Act.
8
[28
]
Defendant should have pleaded the
Criminal Procedure Act, and
led
evidence to show how
Section 40(1
)(i) was applied in casu. It is not
for me to embark on an analysis of how the discretion in terms of the
Criminal Procedure Act should
be applied simply because that was not
the case before me. I cannot rule on matters that were not pleaded
and clearly not argued
before me.
[29]
It is clear from Diale’s evidence that he did not know that
Section 41
of the
Immigration Act enjoins
him to assist plaintiff to
prove his status. He (Diale ) thought that he was merely being humane
when he accompanied plaintiff
to East Lynne. Diale did not know that
he had a discretion not to arrest plaintiff. At the police station he
got on with the process
of filing in what he called interview and
detention forms simply because he assumed that there was nothing else
he could do since
plaintiff failed to produce documents that entitled
him to be in South Africa.
An
immigration officer who decides that an illegal immigrant is liable
to be deported has discretion whether or not to arrest and
detain the
person pending his deportation. There is no obligation to do so.
[30] In the matter of Ulde v Minister
of Home Affairs and Another
2009 (4) SA 522
(SCA) the appeal court
considered the issue of the discretion of the arresting officer in
terms of the immigration Act.
In
the matter of Lawyers for Human Rights v Minister of Home Affairs9,
this discretion had been held to be “limited”.
[31]
The appeal court expressed its concerns about the so-called limited
discretion and held that it gives an impression that an
officer is
merely being helpful wThen he or she assists an illegal foreigner to
prove his status. The court referred to the matter
of Northwest
Townships (Pty) Ltd v The Administrator of the Transvaal
1975 (41 SA
1
(T) p 8F-G where Colman J said:
‘
(A)
failure by the person vested with the discretion to apply his mind to
the matter (includes) capriciousness, a failure on the
part of the
person enjoined to make the decision, to appreciate the nature and
limits of the discretion to be exercised, a failure
to
direct his thoughts to the relevant data or the relevant principles,
irrelevant considerations, an arbitrary approach, and the
application
of wrong principles.'
[31.1]
Cachalia JA went on to state that”
(8)“
The approach I have outlined is now subsumed under s 12(l)(a) of the
Constitution which provides that freedom may not
be deprived
‘arbitrarily or without just caused Simply put a person may not
be deprived of his freedom for unacceptable
However,
once the decision-maker has demonstrated that the discretion has been
properly exercised, a court will not interfere, even
if it appears
that the wrong decision was made.
[32]
On the facts of this matter, it is clear that Diale did not know what
he was doing, and as such, the question of whether or
not he
exercised his discretion does not arise. It could only arise if he
knew the purpose of his actions and the consequences
for the
plaintiff.
[33]
The defendant has failed to justify that Diale was entitled to arrest
and detain plaintiff. Diale simply filled in the forms
without
applying his mind as to the consequences arising therefrom. He did
not care what happens to plaintiff after he has completed
the forms,
which in any event were not fully done.
[34]
Plaintiff closed his case without testifying. I cannot hold this
against him, moreso because the onus was on the defendant
to
establish the lawfulness of his arrest and detention.
[34.1]
On the facts, defendant has failed to discharge the onus , and
therefore I make a finding that the arrest and detention of
plaintiff
was unlawful.
SUBMISSIONS
ON QUANTUM OF DAMAGES
[35]
I warned plaintiff after he closed his case without testifying that I
would have nothing to evaluate his damages against should
I find that
he was arrested and detained unlawfully. Plaintiff chose not to place
his personal circumstances, the cisrcumstances
under which he was
held, his state of mind or any other factor(s) that could have
assisted me to quantify his damages.
[36]
It is so that an arrest and detention in itself infringes on a
person’s right to dignity and freedom as counsel for the
plaintiff has submitted. However, circumstances under which a person
is held, duration and how it affected him determines the extent
of
compensation to be awarded.
[37]
Counsel for the plaintiff has submitted that I should not “slavishly
adhere to a consumer price index in adjusting the
award” or
refer to awards in previous cases.
[38]
Whilst I agree with the principle, I still hold a view that the
starting point is an individual's circumstances. In that way,
a trial
judge is able to distinguish those circumstances from those of any
other case. It is as simple as legal precedents. The
facts determine
how a specific principle should be applied.
[39]
Counsel for the defendant has asked me to award an amount of RI0
000,00 as damages, mainly because I have no other information
except
that the plaintiff was detained for three (3) days (5 to 8 January
2010).
Counsel
for the plaintiff is of the view that a fair amount is R50 000,00 for
each day that plaintiff was incarcerated.
[40]
The only information I have about plaintiff is what has been admitted
in the plea and the concessions and admissions made during
cross
examination of the defendant’s witness, and that is;
[40.1]
Plaintiff was removed from his work place, driven to East Lynne,
about 20 km away. He was taken to the police station; and
[40.2]
He was detained for three (3) days as I stated above.
[41]
I will not determine a daily award because I do not know the
circumstances under which plaintiff was held or how he coped on
each
of those three days or how it affected him.
[41.1]
An amount of R90 000,00 in my view represent a fair amount of damages
suffered by plaintiff as a result of his unlawful arrest
and
detention.
[42]
I make the following order;
[42.1]
The arrest and detention of plaintiff is declared unlawful,
[42.2]
Defendant is ordered to pay plaintiff damages in the amount of R90
000, 00 (ninety thousand rand) together with interest
at the current
prime rate and calculated from date of summons to date of payment.
[42.3]
Defendant is ordered to pay plaintiff costs of this action.
Makhubela AJ
Acting
Judge the High Court
Date
heard: 31 January and 01 February 2013.
Judgment
delivered on: 15 May 2013
Appearances: Plaintiff: Advocate JH v
B Lubbe
Instructed
by: De Klerk & Marais Inc.
Lynwood
Ridge, PRETORIA.
Defendant: Advocate MS Phaswane
Instructed
by: State Attorney, PRETORIA.
1
Pleadings
2
documents
3
See
also paragraph 4.6 of pre-trial minutes dated 15 November 2012
4
See:
Minister of Order v Hurley 1986(3) SA 568 (A) AT 589 E-F
5
It
is common cause that this person is plaintiff. I will refer to him
as s such.
6
It
is common cause that a colleague accompanied Diale; although he
claimed that he could not remember that it was a male or female.
7
Pages 3, 4 and 5, Bundle
B
8
SEE Jeebhai and Others v Minister of Home Affairs and Another
2009
(5) SA 54
(SCA), paragraphs 23