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[2013] ZANCHC 7
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Ntwagae and Others v Minister of Safety and Security and Another (878/08) [2013] ZANCHC 7 (27 March 2013)
IN THE HIGH COURT OF
SOUTH AFRICA
[NORTHERN CAPE HIGH
COURT, KIMBERLEY]
JUDGMENT
Reportable:
YES
/
NO
Circulate
to Judges:
YES
/
NO
Circulate
to Magistrates:
YES
/
NO
CASE NR :878/08
MODISAOTSILE
ALFRED NTWAGAE
....................................................
1
ST
PLAINTIFF
OTLHALOGANTSE JAMESON
THEBEAPELO
......................................
2
ND
PLANTIFF
GOITSEMANG JIMAIMA
THEBEAPELO
...............................................
3
RD
PLAINTIFF
AND
MINISTER OF SAFETY AND
SECURITY
............................................
1
ST
DEFENDANT
PATRICK MOLEKO DIBEBE
...............................................................
2
ND
DEFENDANT
TRIAL DATES: 06/12/2010 -
08/12/2010
12/09/2011 –15/09/2011
05/09/2012; 11/09/2012 –
13 /09/2012 and 06/12/2012
JUDGMENT DATE: 27 MARCH
2013
PHATSHOANE J.
Modisaotsile Alfred
Ntwagae, the first plaintiff, instituted a claim for damages in
respect of his alleged wrongful arrest and
detention of 31 January
2007 against the Minister of Safety and Security, the first
defendant (the first claim)
.
He and Otlhalogantse Jameson
Thebeapelo and Goitsemang Jimaima Thebeapelo, the second and third
plaintiffs, instituted a further
three claims for wrongful arrest
and detention against the Minister and Inspector Patrick Moleko
Dibebe, the second defendant.
These claims were consolidated in
terms of a Court Order dated 22 October 2010.
The plaintiffs are
elderly citizens who at the time of their arrests were 65, 70 and 67
yearsof age,respectively. Mr Ntwagae claims
to have been arrested on
the morning of 31 January 2007 without a warrant and held until
14h00. It is not in dispute that all
three plaintiffs were arrested
without warrantson 16 March 2007on a charge of kidnapping T M,
a five year old boy,who disappeared
without trace on Sunday 28
January 2007 at or near Churchill Village, Northern Cape Province.
They were released on bail on 22 March
2007. The charges
against them were later withdrawndue to insufficient evidence to
secure aconviction. The Minister denies that
Mr Ntwagaewas arrested
at all on 31 January 2007 and held until 14h00. In respect of the
second spate of arrests and detentions
of 16 March 2007 the Minister
and W/O Dibebe admitted the arrests and detentions but contended
that they were lawfully effected
within the purview of s 40 of the
Criminal Procedure Act, 51 of 1977 (the CPA).
The first claim
:
On the first claim Mr
Ntwagae had to establish his arrest. From his evidence the following
facts can be gleaned.He is a farmer
who left school in standard 2.On
Sunday 28 January 2007 while he was in the veld he saw wheelbarrow
tracks and the footprints
of a child. He was approached by a teenage
boy next to his cattle-kraal who enquired if he had not seen the
missing child. He
told the teenager of the tracks and footprints.
They parted ways. He was also approached by the police who asked him
whether
he had seen the child. He informed them as well about the
tracks.The disappearance of the child ignited a fury in the
Churchill
community who went out in search of the child.
On 29 January 2007
whilst Mr Ntwagaewas at his kraal one Mr Motlagosele, a policeman,
came looking for him. Shortly thereafter
a kombi with many police
officers also arrived and demandedthe child from him. They called
Captain Gabaiphiwe Martha Letebele,the
station commissioner of
Batlharos, who also enquired about the child. The police took him to
his home with sniffer dogs but did
not find the child. He was taken
to Batlharos police station for interrogation and later returned to
his home. The next day the
Vryburg police came to his home. They
kicked opened his door and searched his house. They took him to his
cattle-kraal where
they dug around but found nothing of
significance. They confiscated his cellular phone.
During the morning of 31
January 2007 Mr Ntwagae received another visit from the police while
at his cattle-kraal. There he was
grabbed, kicked, slapped and
insulted by them. One of the police officers accused him of selling
the child to his church for
an amount of R85 000.00. He was
handcuffed and taken to Batlharos police station where he was again
assaulted. The handcuffs
were removed. Although he was not locked up
he was kept at the police station under the watchful eye of the
police who accompanied
him even when he had to go to the shops. He
was released at 14h00.
On 3 March 2007 turmoil
erupted again in the village to the point where the angry mob nearly
burnt his home.This time the police
came to his rescue. They locked
him up in the police cells for two days. On his release he was
advised not to go home. He resided
with an acquaintance. The arrest
and detention of 03 March 2007 are not in dispute. According to Capt
Letebele, Mr Ntwagae was
kept in a user-friendly facility;a house
for the victims of crime in Batlharos.
The defence of the
minister is as follows. Capt Letebele stated that she was not
involved in the investigation and search of the
missing child. She
did not meet Mr Ntwagae on 31 January 2007.She did not assault him
and was unaware of any assault that was
perpetrated on him by other
police officers. She surmised that Mr Ntwagae was not arrested
because there is no record of his
arrest reflected on the SAP 14
(the occurrence book).
The Constitution of the
Republic of South Africa Act, 108 of 1996, guarantees everyone,
inter alia
, the right to freedom and security of the person,
including the right not to be deprived of freedom arbitrarily or
without just
cause; not to be detained without trial; and to be free
from all forms of violence from either public or private sources (s
12(1)(a)(b)(c)).
The right to liberty is an intrinsic value of an
individual's self-esteem and dignity and therefore a cardinal
constitutional
imperative worthy of protection from all interfering
spheres. In
Ex parte Minister of Safety and Security and others:
In Re S v Walters
2002 (2) SACR 105
(CC)
at 123 para 30 Kriegler
J pronounced:
“
[30]…The
arrest of a person by definition entails deprivation of liberty and
some impairment of dignity and bodily integrity.
Where, in addition,
it is accompanied by the use of force, the impairment of these rights
is all the greater; and, ultimately,
the use of potentially lethal
force jeopardises the most important of all individual rights, the
right to life itself.”
Mr Ntwagae was taken to
task that in his particulars of claim he only mentioned that on his
alleged arrest he was hit with an
open hand yet when he testified he
expanded to say that he was handcuffed, kicked, pushed and
throttled. In response he intimated
that he did not informhis
attorneys of the further incidents of assault as he was angry. He
also did not lay a charge against
the police because they were the
perpetrators. Ms Erasmus, for the Minister, argued that Mr Ntwagae
was unhappy that a few days
prior to his arrest his house was
subjected to intense search without a warrant yet he failed to
institute a claim in respect
thereof. This was because, she argued,
there was no infraction of any of his rights.
In his particulars of
claim Mr Ntwagae further stated that Capt Letebele was amongst the
police officers that were present when
he was arrested. As his
evidence progressed he conceded that Letebele may not have been
present. His evidence should be seen
in the light that there had
been mayhem in the community following the disappearance of the
child. Mr Ntwagae is an unsophisticated
senior citizen.The incident
took place at least three years prior to the commencement of the
trial.Many officers were involved
and he was accosted more than
once.Therefore, the lack of sequence in the narration of the
incidents is understandable.
As has been shown,
the police were involved in the investigation of the
missing child and had in one way or another been in contact with Mr
Ntwagae.
On the 31 January 2007 extract of the occurrence book at
06h32 the following inscription appears:
“
06:35:
Crime prevention on duty: CaptMoeti, R/CstBaotlwaeng, Elijah and
R/CstSemanego to Churchill for searcing missing child
per S/V
BMR 3748. Kilos 277589. Inspected by CaptLetebele.”
It
does not end there because at 18h35 on the same day the following
entry is made: “
CaptMoeti to Churchill to hand a
cellphone to Mr MatlotlengNtwagae.
Later on at 21:40
Moeti reports therein
: “R/CaptMoeti: From Churchill
from Mr Ntwagae. I found his family and no one wants to talk to me.
I tried but all in vain.
Then I came back with his cell phone and I
handed it to CSC and it was correctly handed”.
Mr Ntwagae’s
evidence to the effect that he was arrested in the morning and held
until 14h00, is to a certain extent, supported
by that of his son
who testified that in the afternoon of 31 January 2007 the police
brought his father home. When he enquired
from the police what
happened to him he was told to enquire from his father. His father
told him that he was accused of kidnapping
and selling the child. He
did not notice any signs of torture on him but noticed that he was
distressed.
By and large Mr
Ntwagae’s evidence was not seriously challenged. The only
witness called for the Minister, CaptLetebele,
was unable to testify
on the incidents of 31 January 2007 save to state that she
ascertained from the police records that Mr
Ntwagae was not
arrested. Her denial that she was not involved in the investigation
is at odds with the occurrence book entries
of the day described in
para 11 above. Deprivation of liberty constitutes an arrest.
See
Mahlongwana v Kwatinidubu Town Committee
1991 (1) SACR 669
(E)
at 675Dwhere Mullins J
held:
“…
(T)hat
the mere act of arrest itself involves deprivation of liberty, but
our law recognises a clear distinction between the act
of arrest,
which may occur anywhere, and the act of detention in custody, which
involves incarceration after the arrest, and pending
the taking of
further procedural steps. The power granted to 'detain' may in
particular circumstances include the power to arrest.”
I am satisfied that Mr
Ntwagae was arrested on 31 January 2007. An arrest without a warrant
under s 40(1)(b) of the CPA is
not unlawful where the arrestor
entertains the required reasonable suspicion but intends to make
further enquiries after the
arrest before finally deciding whether
to proceed with a prosecution, provided it is the intention
throughout to comply with
s 50 of the Act. See
Duncan v Minister
of Law and Order
1986 (2) SA 805
(A).
Section 50,
inter alia
,
provides that an arrested person must be brought before a court
within a prescribed period of time.
In
Thompson and
Another v Minister of Police and Another,
1971 (1) SA 371
(E)
at
374H, Eksteen J held:
“
The
arrest itself is prima facie such an odious interference with the
liberty of the citizen that animus injuriandi is thereby presumed
in
our law, and no allegation of actual subjective animus injuriandi is
necessary (Foulds v Smith,
1950 (1) SA 1
(AD) at p. 11). In such an
action the plaintiff need only prove the arrest itself and the onus
will then lie on the person responsible
to establish that it was
legally justified.”
In the light thereof
that the Minister cannot justify the arrest it follows as a
consequence that it must have been unlawful.
The second, third and
the fourth claim:
The plaintiffs allege
that they have been wrongfully arrested and detained from 16 to 22
March 2007. Mr Strydom, for the plaintiffs,
argued that the
plaintiffs’ further detention following their appearance in
court was unlawful and a clear breach of their
rights as set out in
s 35 of the Constitution. Counsel argued that W/O Dibebe had an
obligation to disclose favourable information
to the prosecutor for
the plaintiffs’ release.
The following averments
are captured in the plaintiffs’ particulars of claim:
“
11. Op of
ongeveer 16 Maart 2007 en te Churchill Village, KurumanDistrik, is
dieEisergearresteersonder ‘n lasbriefdeurInspekteurDibebe
van
die Kimberley SAPD.
12. Na die arrestasie is die
Eiseraangehou by die Mothibistad SAPD selle en
teKurumanKorrektieweDienste tot en met 22 Maart 2007
toe
borgvirhomvasgestel is teMothibistadLanddroshof, welketydperk 7 dae
in aanhoudingdaarstel.
13. GemeldeInspekteurDibebe het
tealletyeopgetreebinne die omvang van sydiens as Polisiebeampte van
die Suid-AfrikaansePolisiediens
en is
Verweerderderhalwemiddelikaanspreeklikvir die gemeldeInspekteur se
optrede.
14. As gevolg van voormeldely die
Eiseralgemeneskade in die bedrag van R700 000.00 weens die
aantasting van syreg op vryheid
van beweging, vernedering, ongerief,
ongemak, skending van syreputasie en eergevoel en
verliesaanlewensgenietinge.”
As a starting point a
distinction should be drawn between wrongful arrest on one hand and
malicious arrest on the other. In
Relyant Trading (Pty) Ltd v
Shongwe
[2007] 1 All SA 275
SCA
at 377 para [4] the court made
this pronouncement:
“
Wrongful
arrest consists in the wrongful deprivation of a person’s
liberty. Liability for wrongful arrest is strict, neither
fault nor
awareness of the wrongfulness of the arrestor’s conduct being
required. An arrest is malicious where the defendant
makes improper
use of the legal process to deprive the plaintiff of his liberty. In
both wrongful and malicious arrest not only
a person’s liberty
but also other aspects of his or her personality may be involved,
particularly dignity. In Newman v Prinsloo
and another
[1973 (1) SA
125
(W) at 127H] the distinction between wrongful arrest and
malicious arrest was explained as follows:
“
[I]n
wrongful arrest . . . the act of restraining the
plaintiff’s freedom is that of the defendant or his agent
for
whose action he is vicariously liable, whereas in malicious arrest
the interposition of a judicial act between the act of the
defendant
and apprehension of the plaintiff, makes the restraint on the
plaintiff’s freedom no longerthe act of the defendant
but the
act of the law.”
See also:
Minister of
Safety and Security v Sekhoto and Another 2011(5) SA 367 (SCA)
at
para [42].
The plaintiffs’
detention from the period 19 – 22 March 2007 cannot be imputed
on the Minister. The following were
the remarks by Holmes JA in
South British Insurance CoLtd v Unicorn Shipping Lines (Pty) Ltd
1976 (1) SA 708
(A)
at 714F-G:
“
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.”
The plaintiffs did not
separately canvass or take issue with their alleged malicious arrest
and detention following their appearance
in court on 19 March 2007.
Neither did they sue for malicious prosecution. If they had there
may have been something to say for
them. See
Garth Hash and
others v The Minister of Safety and Security EC 2499/2009;
2500/2009; 2501/2009
(unreported) delivered on 02 August 2011.
For the purposes hereof I will only deal with the plaintiffs’
alleged wrongful
arrest and unlawful detention for the period 16 -19
March 2007.
The defendants bore the
onus to prove the lawfulness of the arrest
(Minister of Law and
Order and Others v Hurley and Another
1986 (3) SA 568
(A)
at
589E-F
)
.W/O Dibebe testified that rumours were circulating at
Churchill, that the plaintiffs may have been linked to the
disappearance
of the child. He questioned the mother of the missing
child. He also received information that Thusanang John Tshukutswane
("
Trigger
"), knew what happened to the missing
child. He explained that Trigger, a 24-year old man, appreciated
what he was saying
and appeared to him normal.
W/O Dibebe intimated
that after recording Trigger's statement he was of a view that the
state had a
prima facie
case against the plaintiffs. He says
his view was fortified by the fact that the Churchill villagers
staged a protest march against
the plaintiffs. According to him it
was strange that the community undertook the search for the child
whereas Mr Ntwagae cavalierly
went about his own affairs and did not
join them. He established that the child went missing in the veld in
the vicinity of where
Mr Ntwagae had been seen. He consulted with
Brig Jappie Riet before he arrested the plaintiffs on a count of
kidnapping on 16
March 2007. The plaintiffs were held in custody and
brought before court on 19 March 2007. They were remanded in custody
and
released on bail on 22 March 2007. The docket was referred to
the Director of Public Prosecutions for decision. A
nolleprosequi
was issued and on 31 May 2007 the case was withdrawn.
Mr Jameson Thebeapelo is
also a farmer. He has been married to the third plaintiff for 49
years. He testified that on 16 March
2007 around 17h30 W/O Dibebe
arrested him without furnishing any reason for his arrest. He saw
papers at the police station to
the effect that the charge related
to kidnapping. On his release on 22 March 2007 he was advised
by CaptLetebele to leave
Esperenzer village, where he resides, for
Seven Miles, 12 kilometres away from his home for his own safety
where he stayed for
a period of a month. It was for the first time
that he was placed under arrest. He was locked up with other
inmates.Although
these inmates respected him he suffered in jail and
the food was unpalatable.
Ms Jemaima Thebeapelo,
the third plaintiff, is partially blind. Similarly, she was not
informed that her arrest related to kidnapping.
Like her husband she
has never been in conflict with the law. She endured an unbearable
prison stay, such as sleeping on a cement
bed and a floor carpet.
She had no access to her medication. She was similarly banished to
Seven Miles with her husband.
Mr Ntwagae also has a
clean criminal record. He stated that the prison was overcrowded
which deprived him of sleep. The prison
conditions were bad. On his
arrest his cellular phone was taken away at the police station and
only returned after 8 months.
He has a sickly wife who requires
constant medical care and attention because she cannot bathe herself
and walks with difficulty.
Her condition worsened following his
arrest because he could not support her. Mr Ntwagae says that his
dignity was impaired as
the villagers view him as a kidnapper and
order their young children to stay away from him.
Although the facts in
Mabona and Another v Minister of Law and Order and Others
1988 (2) SA 564 (SE)
are quite distinguishable, I find
the following remarks by Jones J at 664 D-G apposite:
“
In
evaluating the lawfulness of the police actions I must bear in mind
that at times it is necessary to strike while the iron is
hot. If
swift, effective action is not taken, but instead ponderous
enquiries, suspects may be forewarned and evidence may disappear.
For
this reason, the second defendant's decision to search the
plaintiffs' houses is entirely justified, although he may have been
better advised to have obtained a warrant in case permission to
search was refused. But when the search failed to produce the stolen
money or any other incriminating evidence, the arrest of the
plaintiffs was not justified. A thorough search by a number of
trained,
experienced policemen had failed to confirm the presence of
a large sum of money hidden in the first plaintiff's home, which is
the most important and the most incriminating part of the informer's
information. If there was any reasonable basis for suspicion
before,
it must now have fallen away. In my view a reasonable policeman would
no longer have good grounds of suspicion, and he
would not have
arrested the plaintiffs. Instead, he would have put the gist of his
information to them, questioned them about it
and conducted any
further enquiries and investigations which their explanations
suggested.”
In terms of s 40(1)(b)
of the CPA:
“
A peace-officer may without warrant
arrest any person whom he reasonably suspects of having committed an
offence referred to in
Schedule 1 other than the offence of
escaping from lawful custody
”.
Here, the
question to be determined is whether W/O Dibebe reasonably suspected
the plaintiffs of having committed a schedule 1
offence.In the
Minister of Safety and Security v Sekhoto and
Another
supraat 379 para [28]
the
court held:
“
[28]
Once the jurisdictional facts for an arrest, whether in terms of any
paragraph of s 40(1) or in terms of s 43, are present, a discretion
arises. The question whether there are any constraints on the
exercise of discretionary powers is essentially a matter of
construction
of the empowering statute in a manner that is consistent
with the Constitution. In other words, once the required
jurisdictional
facts are present the discretion whether or not to
arrest arises. The officer, it should be emphasised, is not obliged
to effect
an arrest. This was made clear by this court in relation to
s 43 in Groenewald v Minister of Justice[1973 (3) SA877(A)].
W/O Dibebe obtained the
following statement from Trigger on 14 March 2007 which he
claims implicated the plaintiffs. It reads:
"
Thusanang
Jan Tshukutswane, Trigger, verklaar in Afrikaans ondereed
(Tswana-sprekend).
Ek is 'n volwasse man,
Suid-Afrikaanse burger met identiteitsnommer: 830202 6919 086,
gebore 1983-02-02, 24 jaaroud,
woonagtig by huisnommer 5E,
SprinzastadteKuruman met kontaknommer 082 362 8707 en is
tans werkloos.
Op Maandag, 29-01-2007 omstreeks
08:00 die oggend het eknaThebeapeloOtlhalogentse se
woningafgeloopomtegaankuier. Met aankomsdaar
het
ekvirThebeapeloOtlhalogantsebuitesyhuisontmoetnabysytuckshop.
MeneerThebeapelo het my
daarnagestuurnasyvriendMeneerMatlotlengNtwagae
se huisom 'n
sakdaartegaanhaal en virhom, MeneerThebeapeloOtlhalagontse, moet
bring.
Ek het
tevoetgestapnaMatlotlengNtwagae se woningteChurchhillStad in
Kuruman. Toe ek by Matlotleng se woningopgedaag het, het
ekvirhomgekrywaarhybesig was omsyvoertuigte was. Die
voertuigwatMatlotlenggewas het was 'n wit bakkiegewees. Ek het
virMatlotlengverteldatMeneerThebeapeloOtlhalogantsevir
my gestuur
het om 'n saktekomhaal.
MeneerMatlotlengNtwagae het 'n
grootrooistreepsakagter die bakkiewathygewas het gehaal en aan my
oorhandig. Ek het met die
gewiggevoeldathierdiegrootrooistreepsakbaieswaar
was. Daarna het
ekgeloop met die
grootrooistreepsakoppadterugnaMeneerThebeapeloOtlhalogantse se
woning. Terwylekalleen met
hierdiesakoppad was naMeneerThebeapelo
toe het ekgeloop en rus.
Op 'n stadium het ek die
grootrooistreepsak met my regterduimgedruk en toe het ek 'n gehuil
van 'n kind in die sakgehoor. Die
grootrooisak se gulp was heeltyd
toe gewees en na die gehuil van 'n kind binne-in was ekgeskrik en
onderdruk van Gees. Die drukking
van Gees het gemaakdateknie die
sakmoetoopmaaknie. Die gehuil van 'n kind in die sak het twee
keerplaasgevind.
Met my aankoms by MeneerThebeapelo
se huis was hynietuisnie. MeneerThebeapelo se vrou het my
gesêdathyna die veld gegaan
het om die
beestebymekaartegaanmaak. MeneerThebeapelo se vrou se naam is
GoitsemangThebeapelo en ek het virhaar die grootrooistreepsakgegee
endaarnaweggeloophuistoe.
Ek het ooknievirGoitsemanggesê
van watekgehoor het binne die sak want ek was onderdruk van die
gees.
Toe MeneerThebeapelo my gestuur het vir die sak het
sywerknemer in die Tuckshop, Mpho gehoor toe MeneerThebeapelogepraat
het
met my oorhierdiesak, wateksou by
MeneerMatlotlengNtwagaegaangehaal het. Dit is al watekkanverklaar.
Ek is vertroud met die
bostaandeverklaring en begrypdit. Ek het geenbeswaar ten die aflê
van die eed. Ekbeskou die eed as
bindendvir my gewete
.
"
(My
emphasis).
The chronology of events
would help to put matters in perspective and to try and comprehend
W/O Dibebe’s logic or lack thereof.
He says he studied the
docket before effecting the arrests of plaintiffs. Contained therein
is a statement of W/O Maele, dated
12 March 2007, taken four
days prior to the arrest of the plaintiffs on 16 March 2007. It
reads:
‘
I am the
investigating officer in this inv[estigation] and on 11/03/07
+
11:30,I
met Mrs Mosiapoa who the family alleged that she is having
information and she cannot witness because she only heard people
talking at Church. Trigger traced and Mr Mokime state that he is
psychiatric patient and goes anywhere he wants without informing
them. It is alleged that he was having stripe bag from Mr Ntwagae to
somewhere but Mr Ntwagae is having enough transport and cannot
involve sick (mad) person to be involved in this serious matter.’
Mr Strydom, for the
plaintiffs, confronted W/O Dibebe with W/O Maele’s statement
relating to the fact that the former Investigating
officer was not
prepared to take into account what Trigger had to say because he was
a psychiatric patient. In response W/O Dibebe
intimated that the
statement was nothing short of hearsay. That there was no expert
report evincing that Trigger had psychological
problems.
The pre-arrest alarm
bells were already ringing with the statement of W/O Maele, which
W/O Dibebe Ignored. When W/O Dibebe obtained
Trigger’s
statement on 14 March 2007 (above) the alarm bells were ringing
several octaves higher, which should have alerted
him outright that
Trigger seems objectively mentally disturbed. He did not require a
psychiatric report, as he claimed, to determine
this. Sound common
sense and human experience was sufficient.
To emphasize this fact I
highlight the following absurdities in Triggers’ statement:
It makes no sense that
the second plaintiff (Mr Thebeapelo), a business man (Tuck-shop
owner), would be so unwise to send Trigger,
who was not part of the
alleged kidnapping conspiracy, to fetch the victim of a crime, in a
bag for that matter.
Equally, how naïve
could it have been for the first plaintiff (Mr Ntwagae) to release
the kidnapped victim who was still
alive, to Trigger who, if sound
minded, would do his civic duty and raise the alarm (to keep the
metaphor) with the local chief
or the police.
Thomo Mopalami, the
missing boy, was five years old.If he was normal it means he could
speak and spill the beans on them. We
know from the statement that
he could cry. He cried twice. Why would the kidnappers take such a
risk.
If Thomo developed
normally in his physique he would be very heavy, and indeed he was
according to Trigger. He had to rest several
times. The plaintiffs
stayed five kilometres apart, aten kilometres return trip that is
what the evidence revealed (
ex post facto
). Nevertheless if
W/O Dibebe did not know that at the time it was inherent in the
nature of investigating a case to verify
why Trigger had to rest
several times. More blatantly, Trigger’s statement shows that
Mr Ntwagae had a bakkie with the
cargo already loaded. This means
of transport would not have escaped the alleged kidnapper.
More decisively, forget
for the time being about the psychiatric expert evidence, Trigger
revealed to W/O Dibebe the occult
at play. He said,
inter alia
,
in the statement “
en na die gehuil van 'n kind binne-in
was ekgeskrik en onderdruk van Gees
(under the spiritual spell
or supernatural influences). He says later: “
Ek het
ooknievirGoitsemang
(the third plaintiff)
gesê van
watekgehoor het binne die sak want ek was onderdruk van die gees”.
This could also mean I was bewitched. Who in his sound and
sober senses would not have taken a peek in the bag and rescued the
child? This sounds more like the fable or fairy tale fed to
children about the giant that carried Tselane (a little girl) on
its back in a sack.
The occurrences up to
this point constitute the crux of the case because it relates to the
pre-arrests events. It has to do with
what W/O Dibebe knew before
effecting the arrests. Put differently, what the justification for
the arrests was. The subsequent
events are
ex post facto
and
therefore of lesser importance.
What is astonishing is
that notwithstanding W/O Dibebe’s false denials concerning
Trigger’s state of mind, two months
following the plaintiffs’
release he made enquiries about Trigger’s psychological state
from his grandparents. The
following appears on the investigation
diary:
“
DoenaanteLegobestraatwaar
A10 (Trigger) se ouersblyvirnavraagoorsygeestoestand en of
hynormaalkanpraat en dink…Rachel meld
dat Trigger wel ‘n
geestes problem ondervindwannerhy met iemandpraat en datsymoeder A,
ook die selde is. Ditkomvoorasofdit
die helegesin se probleem is en
Rachel verwys my naeneMevTlhomelangwiemeerkanuitbreioor Trigger
omdatsyvirhomgrootgemaakhet ”
Mr Strydompressed W/O
Dibebe further as follows:
“
Mr
Strydom: As u geweet het wat u nounavraegaandoen het na die
arrestasie in Meimaand, dit is twee maandena die arrestasie, sou
u
nogtans die drieeisersgearresteer het.
W/O Dibebe: U Edele, volgens my,
volgens my kennis, eksouhulleeersarresteer het
alvorensekhierdiegetuiegevat het na ‘n sielkundige
of so”
It does not add up that
W/O Dibebe made this enquiry when he held a view that Trigger was
normal. Ms Seitsing Maureen Leacwe,
testifying for the plaintiffs,
intimated that Trigger is mentally handicapped and suffers from
epilepsy. Ms Leacwe’s testimony
was, to this extent, confirmed
by the chief of the village Mr Moehi Samuel Petros.
Ms Antoinette van Wyk, a
clinical psychologist, examined Trigger on 04 November 2011 by
conducting a psychometric assessment
due to suspected intellectual
disability. Trigger was 28 years 9 months old when the test was
conducted. She used non-verbal
tests as Trigger’s language
differed from hers. She testified that his IQ can be categorized
into profound intellectually
disabled range. The tests revealed his
mental age (cognitive ability) between 4 years 6 months and 5 years.
He was not orientated
to time or place and did not know which year
or month it was. In Ms Van Wyk’s opinion Trigger would not be
in a position
to make a statement on 14 March 2007 about an incident
that took place on 29 January 2007 by giving accurate dates, times
and
places.
Trigger took the stand
and was clearly present by default. For example he does not know his
age, his grandmother who took care
of him or that his grandfather
has passed away. He also does not know the plaintiffs which begs the
question on how he knew from
whom he had to collect the sack and
whom to deliver it to.What is disconcerting is that Trigger’s
statement reflects dates
and times of the incidents with precision,
something which the clinical psychologist testified he is incapable
of doing. I have
personally observed this fact when Trigger
purported to testify. This to me presupposes that W/O Dibebe may
have given him a
helping hand in para 1 and 2 of his (Trigger’s)
statement, quoted in para 29 (above).
W/O Dibebe may well have
had a suspicion because the child is said to have disappeared in the
vicinity where Mr Ntwagae had been
seen but mere suspicion is not
enough.It is trite that the grounds relating to a reasonable
suspicion are interpreted objectively
and must be of such a nature
that a reasonable person would engender a suspicion. See
R
v Van Heerden
1958 (3) SA 150
TPD;Duncan v Minister of Law and Order
supra at 814 D
.
The following passage
appears from the headnote in
Mabona and Another v Minister of Law
and Order and others
supra at 655 B-D:
“
The test
of whether a suspicion is reasonably entertained within the meaning
of
s 40(1)(b)
of the
Criminal Procedure Act 51 of 1977
is objective:
would a reasonable man in the particular 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 the offence or offences for which
he sought to arrest the
plaintiffs. It seems 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.”
In my view W/O Dibebe
relied entirely on a rather quirky statement he obtained from
Trigger without making any effort to analyse
and assess the quality
thereof as already pointed out. On the evidence before W/O Dibebe, I
am of the view that,his suspicion
does not measure up to the
standard required of a reasonable man and therefore he did not
exercise his discretion properly, in
fact he was close to doing it
so capriciously. Nothing in the evidence show that securing the
plaintiffs’ attendance at
court through other less restrictive
or invasive means could not have achieved the same results. To the
contrary, the evidence
suggests that the plaintiffs had, since the
disappearance of the child, been found by the police at their homes.
I cannot see
these elderly people, aged (65, 67 and 70), who reside
in a rural area and unsophisticated, being on the run to evade
standing
trial. It therefore follows that the plaintiffs’
arrestsand detention for the period 16 - 19 March 2007were wrongful
and
unlawful.
The quantum
In their particulars of
claim the plaintiffs claim general damages due to deprivation of
their freedom of movement, humiliation,
discomfort, infringement of
their reputation and integrity and loss of enjoyment of life. In
respect of the wrongful arrests
of 31 January 2007 Mr Ntwagae
claims an amount of R100 000.00 whereas in respect of the
arrest for the period 16 to
19 March 2007 an amount R700 000.00
was claimed by each of the plaintiffs which, has since been reduced
to R500 000.00
in the plaintiffs’ heads of argument.
Regard being had to Mr
Ntwagae’s testimony the parties appears to be
ad idem
that the period of his arrest on 31 January 2007 may be
approximately 7 hours.In respect of the arrest and detention from
16-19 March 2007 the period of the plaintiffs’ incarceration
would be approximately two and a half days.
The determination of an
appropriate amount of damages is a matter of discretion to be
exercised with the aid of all available
facts.The previous awards
made in comparable cases provide a useful guidance. In
Protea
Assurance Co Ltd v Lamb
1971 (1) SA 530
(A)
at 535B – D the
court held:
“
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 p. 556, SCHREINER, J.A., 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, C.J., 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,
L.J., in Scott v. Musial,
(1959) 3 W.L.R. 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."
The plaintiffs are
elderly people who through their lives have never placed themselves
on the wrong side of the law. Mr Ntwagae
was subjected to degrading
treatment on 31 January 2007.As for the arrests of 16 March 2007 the
plaintiffs enduredappalling detention
conditions. The partially
visually impaired Ms Thebeapelo had undergone an eye operation just
before her arrest. W/O Dibebe admitted
knowing of her medical
condition and having done nothing to alleviate her situation. The
plaintiffs seem to be well to do farmers
in the village of Churchill
and appear to have earned some respect from their fellow villagers
through the years. They have lost
their esteem as a result of the
unlawful and wrongful arrests.
Determining appropriate
compensation is a vexing aspect in cases involving wrongful and
unlawful arrests simply because the injury
through deprivation can
never be reversed. Nugent JA remarked as follows in
Minister of
Safety and Security v Seymour
2006 (6) SA 320
(SCA)
at para
[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. The awards I have referred to reflect no discernible
pattern other than that our courts are not extravagant
in
compensating the loss. It needs also to be kept in mind when making
such awards that there are many legitimate calls upon the
public
purse to ensure that other rights that are no less important also
receive protection.”
In
Minister of Safety
and Security v Swart (194/11)
[2012] ZASCA 16
(22 March 2012)
an
award of R50 000.00 for a policeman who had been detained for 4
½ hours was confirmed. In
Masisi v Minister of Safety and
Security 2011 (2) SACR 262 (GNP)
an award was fixed at
R65 000.00 for a durational detention of just over 4 hours. In
Manase v Minister of Safety and Security and Another
2003 (1) SA
567
(Ck)
the plaintiff, a 65-year old businessman,had been
unlawfully detained for 49 days. He was awarded R100 000.00
of which
R90 000.00 thereof was for malicious arrest and
detention while R10 000.00 was for malicious prosecution. In
Van Rensburg v City of Johannesburg
[2007] ZAGPHC 276
;
2009 (1) SACR 32
(W)
R75 000.00 was awarded to a 74-year old retired accountant who
was wrongfully arrested and held for a period of approximately
6
hours. In
Van der Merwe v Minister van Veiligheid en Sekuriteit
en andere
, unreported judgment of this court, case number 716/07
delivered on 27 November 2009, the plaintiff, a 60-year old building
contractor,
whose unlawful arrest was for a period of 2 ½
hours was awarded R25 000.00.
Thecompendium of all the
above decisions and numerous others not cited shows that there can
beno rule of thumb. It depends entirelyon
the circumstances of each
and every case. Regard being had to the circumstances of this case I
am of the view that an award of
R40 000.00 in respect of the
first claim and an award of R170 000.00 to each of the
claimants for the unlawful arrest
and detention of 16-19 March 2007
would be appropriate.
On the question of
costs, Mr Strydomcontended that they be awarded on an attorney and
client scale. He argued that W/O Dibebe’s
testimony is
interspersed with contradictions, untruthfulness and contempt
against the plaintiffs. He referred to
Coetzee v National
Commissioner of Police and Others
2011 (1) SACR 132
(GNP)
where
the court held that a government official in a particular position
can be ordered to pay costs
de bonispropriis
under certain
circumstances as a result of such an official's actions, and in
particular where the actions of the official were
unlawful and
gratuitously gave rise to litigation and the attendant costs. I am
not swayed that the plaintiffs have laid any
basis for an award of
costs on a punitive scale neither is there any averment on their
particulars of claim that W/O Dibebe acted
mala fide
.
Ms Erasmus, on the other
hand, contended that if the plaintiffs were to be successful they be
awarded costs on the Magistrates’court
scale. Courts have
granted costs on the High court scale even where the amount claimed
falls within the jurisdiction of the magistrates’
court. The
underlying principle being the importance which the courts attach to
questions of unlawful arrest and detention. See
Mvu v Minister of
Safety and Security and Another 2009 (2) SACR 291 (GSJ)
at
302 para 17.The costs will be on the High court scale.
There is no
justification to single out W/O Dibebe to pay the legal costs when
other officers were also involved particularly
with regard to the
arrest of 31 January 2007. W/O Dibebe may have been the
investigating officer but was not the most senior
officer involved
in the investigation. For example Capt Letebele was involved in the
early days of the investigation. W/O Dibebe
also intimated that he
consulted with Brig Jappie Riet before effecting the arrests. The
Minister of Safety and Security is vicariously
liable and the
plaintiffs will suffer no prejudice.
ORDER:
In the result I make the
following order:
1. Judgment is granted
for the first plaintiff (Mr Ntwagae):
1.1 In the sum of
R40 000.00 (forty thousand rand) in respect of the unlawful
arrest of 31 January 2007.
1.2 In the sum of
R170 000.00 (one hundred and seventy thousand rand) in respect
of the unlawful arrest and detention for the
period 16-19 March 2007.
2. Judgment is granted
for the second plaintiff (Mr Thebeapelo):
In the sum of R170 000.00
(one hundred and seventy thousand rand)in respect of the unlawful
arrest and detentionfor the period
16-19 March 2007.
3. Judgment is granted
for the third plaintiff (Ms Thebeapelo):
In the sum of
R170 000.00(one hundred and seventy thousand rand)in respect of
the unlawful arrest and detentionfor the period
16-19 March 2007.
4. The first defendant,
the Minister of Safety and Security,is ordered to pay interest on the
awarded damages at the rate of 15,5%
per annum from 10 March 2008,
the date of demand,to date of payment.
5. The first defendant is
ordered to pay the costs of thisaction on party and party scale.
_____________________________
MV
PHATSHOANE
JUDGE
NORTHERN CAPE HIGH COURT
FOR
THE PLAINTIFFS: ADV WAF STRYDOM INSTRUCTED BY ENGELSMAN MAGABANE INC
FOR
THE DEFENDANTS: ADV SL ERASMUS INSTRUCTED BY THE STATE ATTORNEY