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[2013] ZAECMHC 17
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Mothibedi v Minister of Safety and Security and Another (1680/2009) [2013] ZAECMHC 17 (6 September 2013)
REPORTABLE
IN THE HIGH COURT OF SOUTH
AFRICA
(EASTERN CAPE HIGH COURT -
MTHATHA)
CASE NO. : 1680/2009
Heard on : 29, 30 and 31 May
2013
Delivered on : 06 September 2013
In the matter between:
RAUTA MOTHIBEDI
...................................................................................
Plaintiff
And
MINISTER OF SAFETY AND
SECURITY
...................................
First
Defendant
CONSTABLE MHLATHI
............................................................
Second
Defendant
JUDGMENT
______________
MAJIKI J:
[1] On 18 August 2009 the
plaintiff sued the defendants for unlawful arrest, unlawful detention
and contumelia for a sum of R300 000.00.
[2] The plaintiff’s case
is that on 15 January 2009 he was arrested by the second defendant at
Sterkspruit on charges of driving
a motor vehicle without a valid
driver’s licence. The second defendant alleged that the
plaintiff was under influence of
liquor and he detained him from
about 11h00 to 20h00, so as to gain sobriety.
[3] It is common cause that on
the said date the plaintiff was arrested at Lepota location and taken
to Sterkspruit Central Police
Station, he was issued with a written
notice to appear in court or pay a sum of R100.00 admission of guilt
on or before 05 February
2010.
[4] The issue for determination
was whether the arrest was lawful and the duration of subsequent
detention, if any.
[5] According to the defendants
the arrest was lawful and was effected in terms of Section 40 (1) (a)
of the Criminal Procedure
Act (“the CPA”). Further, the
plaintiff had contravened section 12 of National Road Traffic Act No.
93 of 1996 “(the
NRTA”).
[6] Section 40(1)(a) of the CPA
provides that
“
a
peace officer may without warrant arrest any person who commits or
attempts to commit any offence in his presence.”
Section 12 of the NRTA provides
that
“
no
person shall drive a motor vehicle in a public road except under the
authority and in accordance with the conditions of a licence
issued
to him or her in terms of this Chapter or any document deemed to be
a licence for the purposes of this Chapter; and
unless he
or she keeps such licence or document or any other prescribed
authorisation with him or her in the vehicle”.
[7] The parties agreed that the
matter should be heard both on merits and quantum. The defendants
bore the onus to prove the lawfulness
of the arrest and they had to
adduce evidence first.
[8] The second defendant
testified that on 18 January 2009 at about 11am +15-20 km away from
Sterkspruit town, he was in company
of Constable Gumata and reservist
Yakobi. In an uphill at Lepota location he saw a motor vehicle, combi
driven by the plaintiff
slanting and obstructing the roadway. He
stopped behind it and signalled with a hooter, alerting its driver
that he was behind
it, the motor vehicle jerked. He went to the motor
vehicle, he found the plaintiff and some passengers in the motor
vehicle. He
enquired from the plaintiff if there was a problem, the
plaintiff answered in the negative. He asked the plaintiff to move
the
motor vehicle, because the road was bad. The plaintiff started
the motor vehicle and it jerked again. He then asked if the plaintiff
had a driver’s licence. The plaintiff answered that he did not
have it. He asked for the plaintiff’s identity document,
and
the plaintiff said he did not have it as well.
[9] He then advised the
plaintiff that he had committed an offence and he was arresting him
for driving without a licence. He took
the plaintiff and told him
that he would drive the plaintiff’s motor vehicle and the
plaintiff would seat as a passenger.
Gumede then drove the state’s
motor vehicle. They proceeded to the police station with the
passengers still inside the plaintiff’s
motor vehicle. Upon
their arrival at the police station the passengers requested to
alight and they alighted. He gave the plaintiff
a J534 form, a notice
to appear in court alternatively, to pay a fine as an admission of
guilt. He explained the contents of the
form to the plaintiff. The
plaintiff was calm and composed. He co-operated during the arrest. He
told the plaintiff that he could
not release the motor vehicle to
him, he would have to bring someone with a driver’s licence.
[10] In about 15 minutes the
plaintiff came with someone to fetch car, he inspected the driver’s
licence of the said person
and gave him the motor vehicle’s
keys in the plaintiff’s presence. He denied that he detained
the plaintiff until 20h00
but insisted that he released him at about
11h30. He had already knocked off duty by 20h00; his shift was 07h00
to 19h00. There
would not have been a need to either detain the
plaintiff for longer or draw his blood as he was not arrested for an
offence that
involved drunkenness. He also denied that he hand -
cuffed the plaintiff or that he had locked him at the back of the
police van.
[11] Under cross examination he
conceded that he was working under a station commander but he did not
hand the plaintiff to the
station commander. They do record their
work in the occurrence book, albeit not all the time. He stated that
he did not know what
the standing orders require of them in that
regard. He only has recollection of hearing about standing orders
during the lessons
on his training but has never seen one. He would
not say if he complied with the standing order G341 during the arrest
of the plaintiff
because he was not familiar with it.
[12] He also conceded that he
never completed the rights form because he had already advised the
plaintiff of his rights, and the
plaintiff was not going to be
detained. He did not make a record in his pocket book as he did not
have it at the time. He said
even if all this was required of him by
the standing orders, in practice they do not do it when the suspect
would be released,
they only issue the suspect with a ticket. He
denied that he had ulterior motives in arresting the plaintiff. The
plaintiff was
arrested in order to be issued with the notice to
appear in court for driving a motor vehicle without a licence. He was
not sure
of the Act or section that empowered him to arrest the
plaintiff. He only knew that the offence was in terms of the Road
Traffic
Act. He did not lock the plaintiff at the back of the police
van as required by standing order G250 because the plaintiff was
co-operative.
He confirmed that in the J534 his name appears as an
investigating officer and therefore was both an arresting and
investigating
officer in the matter; that he did not fill in the
serial number of registration of J534 because the notice had not been
captured
in the system yet by the administration staff.
[13] He denied that the
plaintiff was out of the motor vehicle, he said the plaintiff was at
all times in the motor vehicle’s
steering wheel. He also denied
that there was only one person, one Lukhanyo inside the motor
vehicle. He denied that he ever escorted
the plaintiff into the
holding cells. He disputed that the plaintiff could have walked on
foot at night after his release. He re-iterated
that the plaintiff
was under his control for about 30 minutes only, from around 11h00 to
11h30. He conceded that he had no record
of this and that his name
did not appear in the occurrence book because he was not based in the
station for the performance of
his duties but was working away from
the station.
The defence case was closed.
[14] The plaintiff testified
that he was arrested by police on 18 January 2009 around 11h00. Their
motor vehicle was parked outside
the road, other motor vehicles could
drive in the road. They were two (2) when the police arrived. He was
outside the vehicle,
the other one was inside the vehicle. The police
parked their police van behind their motor vehicle. The police
officers said they
were drunk behaved as if they were traffic
officers and a male police officer came to him; handcuffed him and
put him at the back
of the van. He could not balance at the back of
the motor vehicle; it was driven at a very high speed on the gravel
road.
[15] At the police station he
was taken inside charge office. He was issued with a ticket and taken
to the cells with the ticket.
The cell was far away from the charge
office. He stayed there until 20h00 when he was released by another
police officer whom he
did not know. He was handcuffed throughout. He
walked alone and arrived home at about 22h00. The police officer had
no reason to
arrest him.
[16] Under cross examination he
stated that he was not driving the motor vehicle. The police officers
did not ask him anything.
He was calm at the time of his arrest but
was handcuffed. He was not given any explanation or told of any
charge. He was issued
with a ticket contents of which he could not
read. He could not explain why his name did not appear in the
detention register but
he did see the second defendant completing the
register. According to him the motor vehicle that the police alleged
he was driving
was left by its owner with the keys in its ignition,
the owner had gone to buy tobacco. He did not know who collected the
motor
vehicle after his arrest, but it was removed the same day from
the police station. He never paid a sum of R100.00 fine.
He was not given food during the
period of his detention. He confirmed that no blood was drawn from
him because he was sober. He
also confirmed that he did not have a
driver’s licence, but the second defendant never asked him for
it.
[17] Mr Luzipho pointed out in
defendants’ heads that there are two irreconcilable versions in
the matter. In such circumstances,
the applicable principle is
clearly set out by Eksteen AJP in
National
Employers’ General Insurance Co Ltd v Jagers
1984 (4) SA 473
(E) at 440 D-G.
“
It
seems to me, with respect that in any civil
case, as in any criminal case
the onus can
ordinarily only be discharged by
adducing
credible evidence to support the
case of the
party on whom the onus rests...”
Mr Hinana on the other hand on
behalf of the plaintiff argued that if the defendant as the party
that bears the onus has failed
to discharge it, there is no need for
the plaintiff to adduce credible evidence.
[18] The second defendant
impressed me as a truthful and credible witness. He was quick to
acknowledge that some of his actions
fell short of procedural
standards that are prescribed by various standing orders. As regards
the facts his evidence was reliable
he was consistent even during
cross examination.
[19] I am unable to come to the
same finding about the plaintiff’s evidence. The plaintiff’s
evidence seemed to be very
convenient and is not supported by the
undisputed facts and inherent probabilities against which it was
adduced. In
Mabona and another v Minister of Law and Order 1988
(2) 654 (SECLD)
at
662 C-F
the court stated as follows
with regard to the approach in two conflicting versions:
“
The
upshot is that I am faced with two conflicting
versions only one of which can
be correct. The
onus
is on each plaintiff to prove on
a preponderance of
probability that her version is
the truth. This
onus
is
discharged if the plaintiff can
show by credible evidence
that her version is the more
probable and acceptable
version. The credibility of the
witnesses and the
probability or improbability of
what they say should
not be regarded as separate
enquiries to be considered
piecemeal. They are part of a s
ingle investigation into
the acceptability or otherwise
of a plaintiff’s version,
an investigation where questions
of demand and
impression are measured against
the content of a
witness’s evidence, where
the importance of any discre-
pancies or contradictions are
assessed and where a
particular story is tested
against facts which cannot be
disputed and against inherent
probabilities, so that at
the end of the day one can say
with conviction that
one version is more probable and
should be accepted,
and that therefore the other
version is false and may
be rejected with safety.”
[20] The plaintiff stated that
he was not inside the motor vehicle, he was never asked about the
driver’s licence. He testified
that he does not have a driver’s
licence, how then would the second defendant have known that he does
not have one, if he
had not asked him about it. He said he was with
one Lukhanyo, they were told that they were drunk and behaving as if
they were
traffic officers, if he was not associated with the driving
of the motor vehicle, what would have been the reason for Lukhanyo
not to be arrested for the same “wrong reasons” as him.
He said he did not know who collected the motor vehicle. According
to
the plaintiff, this motor vehicle was taken whilst it was him and
Lukhanyo who were in or near it. They somehow would have had
to
account about it in the circumstances, but according to him, he does
not know how and when the motor vehicle was taken from
the police
station . Finally, he said he was released at 20h00 by another police
officer. Undisputed evidence was led that his
arrest was not recorded
anywhere, the second defendant had knocked off at 19h00, how then
would another police officer had become
aware of his presence in the
cells and take it upon himself to release him after the second
defendant had already left. I therefore
accept the second defendant’s
evidence that he arrested the plaintiff for driving the motor vehicle
without a driver’s
licence and that the plaintiff was released
at about 11h30 after he was issued with the notice to appear in
court.
[21] Having rejected the
plaintiff’s evidence it still remains to be determined if the
defendants discharged the onus resting
on them that the arrest was
lawful.
A driver in the NRTA is defined
as one who drives or attempts to drive any motor vehicle, drive has a
corresponding meaning with
driving. To start the engine of a vehicle
therefore is to drive it. In
S v Vorster
1968 (2) SA 59
(0)
an
accused found to be asleep behind the steering wheel with engine not
running was held not to have attempted to drive the motor
vehicle
under influence of liquor.
The plaintiff started the
vehicle more than once on the day but it jerked, which is why the
second defendant went to him to ask
if there was a problem. In terms
of s.89(1) failure to observe the requirement of section 12 of the
NRTA, which requires any person
who drives a motor vehicle in a
public road to be duly licenced to do so, and to keep his licence
with him in the vehicle, is an
offence. The plaintiff did commit an
offence in the presence of the second defendant.
[22] The second defendant failed
to comply with a number of the standing orders during the arrest of
the plaintiff. Standing Order
350 regulates the restraining measures
on a person in custody. The measures are taken as precautions to
prevent the escape of the
person in custody. The use of the
restraining measures is discretionary depending on circumstances
including, the behaviour of
the arrested person. The restraining
measures are effected until such time that the arrested person is
handed over to the Community
Service Centre Commander or until he is
placed in a police cell. In my view, there was no need to hand over
the plaintiff to the
Community Service Centre Commander because he
was dealt with as soon as he arrived at the police station. He was
issued with a
J534 form and not taken to the cells. Standing Order
No. 4 about the recording of the use of restraining measures in the
occurrence
book applies to a person who is being detained in a police
cell. This also applies to Standing Order No. 7(4) as to the
transportation
by a police van and the provision that the arrested
person who is transported at the back must be handcuffed. They are
used as
restraint measures to prevent such person from escaping.
There is nothing that precludes the arresting officer from not taking
the precautions if the arrested person’s behaviour is not such
that in the view of the police officer is likely to escape.
[23] The second defendant had
stated that he could not record in his pocket book that he had
informed the plaintiff of his constitutional
rights because he
did not have a pocket book at
the time, further according to their practice they issue SAP14A,
which is a record of constitutional
rights, to people who are
detained. The evidence establishes that the plaintiff was arrested
for driving a motor vehicle without
a valid driver’s licence.
It establishes further that he was given a written notice in terms of
s56 of the CPA and thereafter
released. One aspect that still
requires determination to conclude on the lawfulness or otherwise of
the arrest in this case, is
whether the plaintiff ought to have been
appraised of his rights in the circumstances, in terms of ss (4) and
(8) of the standing
order G341.
[24] Standing Order No G341 of
the police Act creates obligations on the part of the police officers
concerning what police officers
are required to do when effecting an
arrest and how the arrested person should be treated. The rules in
terms of the Standing Order
must be strictly be adhered to. The
background to the Standing Order makes a very compelling statement
that arrest constitutes
one of the most drastic infringements of the
rights of an individual. This Standing Order, in line with the
Constitution of the
Republic of South Africa, 1996 (“the
Constitution”) and other relevant legislation regulates the
framework and lays
rules concerning the circumstances of an arrest of
an individual. S 35 of the Constitution Act provides amongst others,
that :
(1) Everyone who is arrested for
allegedly committing an offence has the right
(a) to remain silent;
(b) to be informed promptly-
(i) of the right to remain
silent; and
(ii) of the consequences of not
remaining silent;
(c) not to be compelled to make
any confession or admission that could beused in evidence against
that person;
(2) Everyone who is detained,
including a sentenced prisoner, has the right :
(a) to be informed promptly of
the reason for being detained;
(b) to choose, and to consult
with, a legal practitioner, and to be informed of this right
promptly;
(c) to have a legal practitioner
assigned to the detained person by the state and at state expense, if
substantial injustice would
otherwise result, and to be informed of
this right promptly;
(d) to challenge the lawfulness
of the detention in person before a court and, if the detention is
unlawful, to be released;
[25] Sections (4) and (8) of the
standing order G341 in a sense are a summary of both S.35(1) and (2)
of the Constitution.
Section 4 provides:-
(a) In terms of section 35(1) of
the Constitution, 1996, the information that must be furnished to a
person at the time of or immediately
after his or her arrest is as
follows:
(i) the reason for his or her
arrest;
(ii) that he or she has the
right to remain silent and that anything he or she says, may be used
as evidence against him or her
in a court of law;
(iii) that he or she has a right
to consult with a legal practitioner of his or her choice or that he
or she may, if he or she so
prefers, apply to the Legal Aid South
Africa to have a legal practitioner assigned to the case at state
expense; and
(iv) that he or she has the
right to apply to be released on bail.
(b)
Section
39
(2) of the
Criminal Procedure Act, 1977
, requires that the person
who effects an arrest must, at the time of effecting the arrest or
immediately thereafter, inform the
person who has been arrested of
the reason for his or her arrest. It is not necessary to use the
actual words of the charge –
mentioning the offence would be
sufficient. If the arrest took place by virtue of a warrant, a copy
of the warrant must, upon his
or her demand, be handed to the person
who has been arrested.
(c) The
information in subparagraph (a) must be furnished to the arrested
person in a language which he or she understands. For
this purpose
the said information is printed on the first pages of the Pocket book
(SAPS 206) in all eleven official languages.
To ensure that a person
is fully informed of these rights, the arresting member must read
this information from the Pocket to the
arrested person in a language
which the arrested person understands.
Section 8
provides:-
(1) Recording of the fact that
the arrested person has been informed of his or her rights:
(a) A member who arrests a
person must, as soon as possible after having furnished the
information in paragraph 6(4)(a) (above),
to the arrested person,
record in his or her Pocket book the fact that the information was so
furnished.
(b) The member must request the
arrested person to acknowledge that he or she has been informed of
his or her rights and that he
or he understands the contents thereof,
by signing next to the recording in the Pocket book, referred to in
subparagraph (a).
(c) If the arrested person
refuses to sign in the Pocket book, a third person (whether a
civilian or another member) who witnesses
the person being informed
of his or her rights, must be requested to sign next to the recording
to certify that he or she has witnessed
this and that the arrested
person refused to sign. If a third person is not available, the
member must make a recording in the
Pocket book to the effect that a
third person was not available to certify that the arrested person
was informed of his or her
rights and that the arrested person
refused to sign the Pocket book.
The courts have over a number of
times strongly condemned of all acts that seek to undermine the
constitutionally protected rights
of an individual. As stated in the
preamble of Standing Order G341 arrest is a drastic infringement of
right to freedom. This was
confirmed in
Minister of Safety and
Security v Van Niekerk 2008 (1) 56 CC
at paragraph 19 and the
court went further to hold that the decision to arrest depend on the
circumstances of the case. At paragraph
20 the court concluded that
nuanced guidelines already exist to determine constitutionally
acceptable arrests in relation to the
facts of the situation.
Guidelines themselves, underline, that the lawfulness of an arrest
will be closely connected to the facts
of the situation.
[26] The conduct of the second
defendant in this case with regard to the compliance with standing
order G345 is inexcusable. The
concession that, it is their practice
not to record that an arrestee, who is not to be detained, had been
advised of their rights
is even more concerning. An arrest is not a
confirmation of the suspect’s guilt, it is not a matter of
choice whether the
fact that they were informed of their rights
should be recorded. This Standing Order is a safeguard so as to
ensure that there
is a record of compliance with the law when
effecting an arrest.
[27] In the circumstances, the
failure goes to the root of lawfulness of the arrest. Accordingly,
the arrest of the plaintiff was
unlawful. I have already rejected the
plaintiff’s evidence regarding the duration of his detention.
The evidence of the second
defendant is the only probable evidence in
this regard.
Quantum
The plaintiff claimed R75 000.00
for his unlawful arrest. He claimed a further R150 000.00 in a sense,
for loss of earnings, in
that he did not perform his work as a motor
mechanic during the detention. Furthermore, that his dignity self
esteem and integrity
were impaired; that he had to walk about 5
kilometres on foot back to his home. The plaintiff is a self employed
motor mechanic
who cannot read or write. His arrest lasted less than
an hour. No evidence was led as to what extent his arrest became
public knowledge
except to the passengers that were in his motor
vehicle. There was also no evidence as to his earnings.
In
Minister of
Safety
and Security v Seymour 2006 (6)SA 320 SA
at para 17 the court
concluded that in assessing general damages the facts of the
particular case must be looked at as a whole.
The court can rely on
previous awards for guidance, but the task is discretionary. None of
the cases I was referred to by counsel
for the plaintiff could assist
me in the circumstances of this case. In
Minister of Safety and
Security and Others v Ndlovu 2012 ZACA 189,
on 30 November 2012
Petse JA confirmed an award of R55 000.00 for arrest and detention
that lasted 48 hours. The award made therein
provided me with some
guidance in arriving at an appropriate award in this case.
In my view, an award in the sum
of R2 200.00 is appropriate.
I therefore make the following
order :
Judgment in favour of the
plaintiff is granted
First and second defendants
are to pay the plaintiff jointly and severally, one paying other to
be absolved damages in the sum
of R2 200.00 for unlawful arrest.
Interest at the rate of 15.5%
from the date of judgment to the date of payment.
Costs of suit.
_________________________
B MAJIKI
JUDGE OF THE HIGH COURT
Counsel for the plaintiff : Mr
Hinana
Instructed by : CAPS Pangwa &
Associates
Suite 302, Offices 311 & 312
City Centre Complex
York Road
MTHATHA
Counsel for the defendant : Mr
Luzipho
Instructed by : State Attorney
Broadcast House
94 Sissons Street
Fortgale
MTHATHA