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[2012] ZAGPPHC 346
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Mafa and Another v Minister of Police and Another (21313/2011,26083/2011) [2012] ZAGPPHC 346 (13 December 2012)
NOT REPORTABLE
IN THE HIGH COURT OF
SOUTH AFRICA
(NORTH GAUTENG
PRETORIA)
CASE NO:21313/2011 and
26083/2011
DATE:13/12/2013
In the matter between:
MAHLOMOLA LAZARUS
MAFA
…............................................
FIRST
PLAINTIFF
SYDNEY JOSEPH
NYATHI
…............................................
SECOND
PLAINTIFF
and
MINISTER OF
POLICE
.................................................................
FIRST
DEFENDANT
WARRANT OFFICER
MPHUTI
...................................................
SECOND
DEFENDANT
JUDGMENT
KUBUSHI, J
INTRODUCTION
[1] Two matters were
placed before me on 8 August 2012, namely, case number 21313/2011 in
respect of Mahlomola Lazarus Mafa, whom
I shall refer to as the first
plaintiff, and case number 26083/2011 in respect of Sydney Joseph
Nyathi, whom I shall refer to as
the second plaintiff. The parties
had agreed at a pre-trial conference that the two matters be
consolidated. The matters were as
a result consolidated for purposes
of this hearing.
[2]
The
plaintiffs’ respective claims against the defendants is for the
sum of R3 510 000, in respect of damages for unlawful
arrest and
detention. The plaintiffs were arrested by Constable Fouche (Fouche)
on 2 July 2010 for allegedly robbing the manager
of Castle Corner Bar
at gunpoint and were held in detention until 27 October 2010.
[3]
At
the commencement of the trial it was made clear that apart from the
question of damages, the only dispute to be adjudicated upon
was
whether the arrest of the plaintiffs fell within the ambit of section
40 (1) (b) of the Criminal Procedure Act 51 of 1977 (the
Act).
[4]
According
to the parties the following facts were common cause between them:
that the plaintiffs were arrested by a peace officer,
Constable
Fouche, on the 2 July 2010 and detained until 27 October 2010; they
were arrested for the offence of armed robbery that
forms part of the
offences in Schedule 1 of the Act; as there was no evidence linking
the plaintiffs to the offence the senior
prosecutor issued a nolle
prosequi certificates against both plaintiffs. What remained to be
determined by this court was whether
at the time Fouche arrested the
plaintiffs, he entertained a suspicion that rested on reasonable
grounds.
[5]
The
parties were also agreed that the onus was on the defendants to prove
that Fouche had reasonable grounds for arresting the plaintiffs,
and
that as a result the defendants should be the first to lead evidence.
EVIDENCE
[6]
The
defendants called Fouche, the police officer who arrested the
plaintiffs to give evidence. Fouche’s evidence was to the
effect that on 21 June 2010 he received a radio call about a
commission of a business robbery at Castle Corner Bar (the Bar). At
the Bar he was shown a CCTV material, which showed what happened
during the robbery. The manager of the Bar, Mr Scholtz, gave him
a
description of the robbers who had held the staff at gunpoint. Mr
Scholtz said one of the robbers was big, tall and had a round
face.
Fouche also had an opportunity to observe the robbers on the video
footage, which was also downloaded onto his laptop. One
of the
robbers was wearing a jacket with a Ferrari emblem at the back (the
Ferrari jacket) and a baseball cap. The robbers were
using a white
Ford Laser motor vehicle as their getaway motor vehicle. This motor
vehicle did not have its original Ford wheel
caps but had what Fouche
referred to as after-sales wheel caps.
[7]
Fouche
gave his informers the description of the robbers and the Ford Laser
and instructed them to be on the lookout for them. On
2 July 2010 he
was phoned by one of the informers that the Ford Laser fitting the
description he had given them was parked at the
Island Paradise
Tavern. Before he went to the tavern he called for back-up. At the
tavern he found a white Ford Laser with after-sales
wheel caps parked
outside. Before he went into the tavern he looked at the video
footage. There were about eight people in the
tavern. He enquired
about the owner of the Ford Laser parked outside. Two people stood up
and said they were the owners. He then
requested them to step outside
with him. When they were outside he showed them the video footage.
These two persons fitted the
description of those who were on the
video footage. They were the same height and built with the same
facial features. One of the
suspects had a baseball cap on and he
also looked similar to one of the people on the footage. He asked
them of their whereabouts
on the day of the robbery, and as they
could not answer him he then arrested them. He took them to the
Mamelodi East Police Station.
He made two statements at the police
station about the arrest of the plaintiffs.
[8]
Under
cross-examination and with specific reference to the investigating
diary, it came out that the criminal trial was postponed
several
times for further investigation and that as at 19 July 2010 the
prosecutor had as yet not been informed about the registration
number
of the motor vehicle and
how the plaintiffs were linked to the case and the circumstances
under which the plaintiffs were arrested.
[9]
Both
plaintiffs testified. According to them, on 2 July 2010 they were
having drinks at a tavern known as Paradise Island. Fouche,
in the
company of other police officers, entered the tavern and ordered the
patrons to stand against the wall with their arms raised.
They then
conducted body searches on everyone in the tavern.
[10]
Fouche
then called the first plaintiff outside and showed him the video
footage on his laptop. He showed him someone and said it
was the
first plaintiff and the first plaintiff denied that it was him. There
were other police officers in the vicinity that were
also watching
the video footage and they in a chorus also said that the person on
the video footage was the first plaintiff. Fouche
then took out a
machine and took the first plaintiffs fingerprints. He was then
handcuffed and taken into a police van.
[11]
The
first plaintiff testified that he was put in the police van because
Fouche insisted he had similar features with one of the
persons who
were on the video footage. Whilst in the van they brought another
person, the second plaintiff.
[12]
After
the first plaintiff was arrested, Fouche went back into the tavern
and asked for the owner of the white Ford Laser parked
outside. The
second plaintiff confirmed that he was the owner and he was told that
that motor vehicle had been involved in a robbery.
He was handcuffed
and put in the police van with the first plaintiff. At the time of
the arrest the two plaintiffs did not know
each other.
[13]
At
the time of his arrest the first plaintiff was employed at Ford Motor
Corporation at Watloo as a hoisting machine operator. He
testified
that on the day of the robbery he was at work. When he came out from
detention he found that he had been dismissed from
work. A
disciplinary hearing was held and he was reinstated.
[14]
Two
months after the first plaintiff was released from detention he
approached attorneys, Seoka Attorneys, and instructed them to
write a
letter notifying the first defendant of his intention to institute
action against it for an amount of R500 000. A summons
for the amount
of R500 000 was issued on the 26 January 2011 and withdrawn on the 6
April 2011. His testimony is that he instructed
his attorneys to
withdraw the summons because he later realized that he had incurred
some debt, which he was still paying and that
the amount of R500 000
was not enough. His current attorneys issued another summons claiming
R3 510 000. According to the first
plaintiff’s testimony the
amount claimed was for time spent in detention, the trauma and all
related matters. He was, however,
not able to provide a breakdown of
the amount of damages claimed.
[15]
The
second plaintiff testified that he owns that motor vehicle, the white
Ford Laser, since 2008. He was not shown the video footage
that was
shown to the first plaintiff. On the date and time it is alleged he
committed the robbery he was at home. His testimony
was that he was
not happy about the time he spent in prison because the cell
conditions were humiliating. Since his release the
police have not
contacted him.
[16]
The
second plaintiff, however, did not have knowledge of any action that
was instituted before this one. He did not know anything
about a
letter of demand issued by Seoka Attorneys. He said he did not
mandate Seoka Attorneys to claim on his behalf. His claim
is for R3
510 000 being for his unlawful arrest and detention and for
compensation of his motor vehicle that he used as a taxi.
The motor
vehicle was impounded by the police and has not been functional since
he got it back from the police.
[17]
Linder
cross-examination the second plaintiff insisted that he was arrested
on Thursday the 1 July 2010 and finger printed on the
2 July 2010.
Whilst arrested he did not apply for bail as he did not have money to
pay it.
[18]
After
their arrest the plaintiffs were taken to the Soshanguve Police
Station. They appeared in court on Monday 5 July 2010 and
were
remanded in custody. They were released on 27 October 2010, 117 days
after their arrest.
[19]
Whilst
so detained they were taken to an identity parade but they were not
identified. The prosecutor later issued a nolle prosequi
certificate
in respect of their case.
[20]
When
addressing me, the defendants’ counsel contended that the
second defendant did not comply with the provisions of section
3 of
Act 40 of 2002 due to the fact that he testified that he did not
mandate Seoke Attorneys to issue the notice on his behalf
in terms of
that Act. She, however, submitted that she would not take issue with
the said non-compliance as, according to her,
it was highly
improbable for Seoke Attorneys to have acted without the second
plaintiff’s mandate. She, therefore, shifted
this evidence to
the second plaintiff’s credibility. In addition she also
submitted that some of the second plaintiff’s
evidence in court
was at variance with certain paragraphs of his particulars of claim,
namely: that in court he testified that
he did not issue a section 3
notice whereas in paragraph 6 of his particulars of claim he alleges
that a notice was issued; and
he testified further that he was
arrested on 1 July 2010 whereas in his pleadings he alleges that he
was arrested on 2 July 2010.
The defendants’ counsel prayed
that the court should, in respect of these discrepancies, make an
adverse inference in regard
to the credibility of the second
plaintiff’s evidence.
[21]
The
plaintiff’s counsel on the other hand noted the fact that the
defendants’ counsel did not take issue with the second
plaintiff’s non- compliance with section 3 of Act 40 of 2002.
He, however, contended that the defendants’ argument
could
still be unsuccessful because for the defendants to challenge such
non-compliance they should have raised an objection before
and/or
after summons by means of a special plea. He referred me to the
following judgments in that regard: MADINDA v MINISTER OF
SAFETY &
SECURITY
[2008] ZASCA 34
;
2008 (4) SA 312
(SCA), MINISTER OF SAFETY & SECURITY v
DE WITT
[2008] ZASCA 103
;
2009 (1) SA 457
(SCA) and a judgment of the full bench of the
South Gauteng High Court in COCHRANE v CITY OF JOHANNESBURG
2011 (1)
SA 553
(SGC) at 558I.
THE ISSUE TO BE DECIDED
[22]
The
main issue to be decided by this court is whether Fouche proved that
at the time of arresting the plaintiffs he had reasonable
suspicion
to arrest them.
ARREST
[23]
The
defendants’ counsel contended that at the time of arresting the
plaintiffs, the arresting officer, Fouche, had a reasonable
suspicion
that the persons he was arresting had committed a schedule 1 offence,
that is, armed robbery. She submitted that Fouche
could clearly
identify the
white Ford Laser with the
after sales-wheel caps that was parked outside the tavern as the one
he identified on the video footage.
He arrested the second plaintiff
because he confirmed that he was the owner of the Ford Laser. He
arrested the first plaintiff
because he wore a baseball cap similar
to the one worn by the person he saw on the video footage, and his
description fitted the
one depicted on the footage. According to
Fouche he was arresting the correct people he suspected had committed
the offence.
[24] The plaintiffs’
counsel, however, argued that the defence did not prove reasonable
suspicion on the part of Fouche. According
to him, Fouche relied on
the description of one of the suspects as provided to him by Mr
Scholtz. However, Fouche got the description
wrong and gave his
informers incorrect information. Fouche was looking for a short
person with a round face whereas Scholtz had
said the suspect was a
big and tall person with a round face. Scholtz is the person who was
robbed and had the opportunity to see
the persons who attacked them
at the bar. He also had a chance to review the video footage before
he made a statement to the police.
This description is also confirmed
by his statement to the police. Scholtz met with Fouche immediately
after the incident and gave
him this description. But, Fouche
arrested a short person with a round face. According to Scholtz’s
statement the short suspect
was wearing a Ferrari jacket and a
baseball cap. According to Fouche the first plaintiff was wearing a
baseball cap when he arrested
him however the first plaintiff
testified
that
when he was arrested he was wearing the jacket he was wearing in
court - which was not a Ferrari jacket - and a ‘beany’
hat. In this respect, counsel referred me to MABONA & ANOTHER v
MINISTER OF LAW & ORDER
1988 (2) SA 654
(SECLD) and OLIVIER v
MINISTER OF SAFETY & SECURITY & ANOTHER
2009 (3) SA 434
(SGC).
[25]
The
plaintiffs’ counsel contended further that Fouche relied on the
chorus of the police who were with him who said the person
on the
video footage was the first plaintiff. Fouche was supposed to have
exercised more care and diligence, more so, as he was
dealing with
informers.
[26]
The
test to be applied in determining whether a peace officer “reasonably
suspected” a person having committed an offence
within the
ambit of section 40 (1) (b) is objectively justiciable. The question
is not whether a peace officer believed that he
or she had reason to
suspect, but whether, on an objective approach, he or she in fact had
reasonable grounds for his or her suspicion.
The test is that of a
reasonable man with the knowledge and experience of a peace officer
based upon the facts and circumstances
then known to the arresting
peace officer. See DUNCAN v MINISTER OF LAW AND ORDER above at 811J -
812A and 814D - E and MINISTER
OF LAW AND ORDER v HURLEY AND ANOTHER
1986 (3) SA 568
(AD) at 579F - 580I.
[27]
Fouche’s
testimony is that at the time of arrest he already had information
that the plaintiffs were the persons who committed
the offence.
Scholtz informed him about the identity of the first plaintiff. He
had an opportunity to study the video footage of
the robbery whilst
he was at the scene of the crime. He went to the tavern where he
found the plaintiffs after a tip off from one
of his informers. He
had given the informers the description of the first plaintiff based
on the information from Scholtz and what
he had observed on the video
footage. He had downloaded the video footage onto his laptop and when
he arrived at the tavern he
had an opportunity to study the footage
again and confirmed that indeed the persons depicted in the footage
were the plaintiffs.
Even after he had called the plaintiffs outside
the tavern he was certain that they were the persons on the video
footage. The
first plaintiff was at the time of arrest still wearing
a baseball cap similar to the one on the video footage.
[28]
According
to Fouche, both plaintiffs owned up to being the owners of the white
Ford Laser that was parked outside the tavern. This
Ford Laser was
the same one that was depicted on the video footage. Fouche had had
an opportunity to study the Ford Laser from
the video footage firstly
whilst still on the scene of the crime. He studied the footage again
when he arrived at the tavern and
confirmed that the Ford Laser was
the one depicted in the footage. What distinguished the Ford Laser
according to him were its
wheel-caps. The Ford Laser did not have the
original Ford wheel caps but what he referred to as “after
sales wheel-caps”.
[29]
The
question thus is whether on the information at the disposal of Fouche
would a reasonable peace officer have arrested the plaintiffs?
My
view is that he would not have.
[30]
When
evaluating the evidence I was faced with two irreconcilable versions
on this issue. The plaintiffs’ version was that
there were no
grounds for Fouche to suspect that they had committed the robbery.
Their testimony was to the effect that on the
day they were arrested
they were at a tavern enjoying their respective beers when Fouche in
the company of other police officers
came to the tavern and arrested
them. Their version is that the police walked into the tavern and
ordered all the patrons to stand
against the wall with their arms
raised, they then searched them.
[31]
The
first plaintiff’s testimony was that after being searched
Fouche asked him to step outside with him. Outside he was shown
the
video footage and Fouche told him that the person on the footage was
him. He saw the person on the footage and it was not him.
He told
Fouche so but Fouche did not listen to him. According to the first
plaintiff Fouche was overpowered by the other police
officers who
chorused that it was him on the video footage. He also denied that on
that day he was wearing the baseball cap that
Fouche testified he was
wearing.
He was wearing the same
clothes he was wearing in court when he testified and a ‘beany’
hat.
[32]
The
second plaintiff testified that he was arrested for no reason other
than that he was the owner of the Ford Laser that was parked
outside
the tavern. He said Fouche went out with the first plaintiff and when
he came back he asked for the owner of the motor
vehicle parked
outside. He stood up and told Fouche that he was the owner and he was
arrested. He was never shown the video footage
but was arrested the
moment he owned up to the motor vehicle.
[33]
The
defendants’ version, on the other hand, is that Fouche went
into the tavern and asked for the owner of the Ford Laser
parked
outside the tavern. Two people stood up and owned up to being the
owners of the motor vehicle. Fouche then asked them to
step outside
with him. Outside he showed them the video footage and said they were
two of the people on the footage. He then arrested
them.
[34]
The
technique generally employed by a court in resolving factual disputes
where there are two irreconcilable versions before it
is to make
findings on: the credibility of the factual witnesses; their
reliability and the probabilities of the matter. See STELLENBOSCH
FARMERS’ WINERY GROUP & ANOTHER v MARTELL ET CIE &
OTHERS
2003 (1) SA 11
(SCA) at para 5.
[35]
When
evaluating the evidence, I found the plaintiffs’ evidence to be
satisfactory in that although there were discrepancies
in the second
plaintiff’s evidence, the plaintiffs, however, corroborated
each other.
[36]
The
first plaintiff was a good witness he did not contradict himself in
his evidence in-chief nor did he contradict himself during
cross-
examination.
[37]
The
second plaintiff, though, was not a satisfactory witness in all
respects. There were discrepancies in his testimony under cross-
examination. Firstly, he gave false evidence in respect of the
required notice to the first defendant. He denied that he gave
instructions to Seoka Attorneys to issue the notice to the first
defendant. I am in agreement with the defendants’ counsel
that
it is highly improbable that Seoka Attorneys would have issued the
notice without instructions from the second plaintiff.
Secondly, the
second plaintiff also contradicted himself by saying the arrest
occurred on Thursday 1 July 2010. It is common cause
that the
plaintiffs were arrested on 2 July 2010.
[38]
However,
the proper test for the reliability of a witness is not whether the
witness is truthful or indeed reliable in all that
he or she says,
but whether on a balance of probabilities the essential features of
the story which he or she tells are true. See
SANTAM BPK v BIDDULPH
[2004] 2 All SA 23
(SCA) at para 10.
[39]
When
looking at the totality of the evidence before me my view is that the
discrepancies in the second plaintiff’s evidence
are not really
material. To my mind, on the balance of probabilities the essential
features of his evidence are true. This is so
because the first
plaintiff corroborates that evidence. That the second plaintiff was
arrested with the first plaintiff on 2 July
2010 and released from
detention on 27 October 2010 is undisputed. Both plaintiffs testimony
as to how they were arrested corroborated
the other.
[40]
The
evidence of the defendants’ witness, Fouche, was to me not
satisfactory. Although there were no discrepancies in his evidence
as
such, I, however, found his version of how he arrested the plaintiffs
improbable. I found it highly improbable: that when Fouche
enquired
about the owner of the motor vehicle two people stood up and claimed
to be the owners of the motor vehicle; that he did
not even enquire
who of the two is the real owner, but just arrested both of them;
that people who had recently been involved in
a robbery using the
motor vehicle which was parked outside would readily stand up and own
up to that motor vehicle when approached
by the police - not even one
but two of them; that Fouche did not confiscate the baseball cap
which the first plaintiff was wearing
at the time of arrest if that
baseball cap was indeed similar to the one in the video footage; that
if the people arrested were
the same ones who were on the video
footage, the police did not provide the prosecution with that footage
immediately; and also
that if the plaintiffs were the people on the
footage they were not easily identified at the identification parade.
[25]
In
my view, Fouche’s testimony was highly improbable and I could
as a result, not rely on it. I, therefore, concluded that
the version
of the plaintiffs must be accepted as truthful and that of the
defendants be rejected as unreliable. Consequently the
defendants
failed to discharge the onus.
DETENTION
[26]
The
contention by the defendants’ counsel on the issue of detention
is that the defendants are not liable. According to her,
the
plaintiffs were lawfully arrested and were brought before court
within the time prescribed in section 50 of the Act. She contended
that even if the arrest was unlawful, the Minister of Police could
only be liable until Monday morning when they were brought to
court,
from that day they were kept in detention at the behest of the
magistrate whose discretion it was to keep them in custody.
[27]
The
plaintiffs’ counsel on the other hand submitted that since the
arrest was unlawful the detention flowing from there was
as a result
also unlawful. There was no evidence linking the plaintiffs to the
offence as per the inserts referred to in the investigation
diary.
These inserts indicate that the police were aware that no evidence
linking the plaintiffs to the crime existed and should
have informed
the prosecutor as such. He contended that the defence did not call
Constable Mphuthi, the investigating officer,
to give evidence about
the conduct of the police from the time of arrest until the
plaintiffs were released and that this should
be interpreted
adversely against the defendants.
[44]
While
it is clearly established that the power to arrest may be exercised
only for the purpose of bringing the suspect to justice,
the arrest
is only one step in that process. Once an arrest has been effected
the peace officer must bring the arrestee before
a court as soon as
reasonably possible; and at least within 48 hours, depending on court
hours. It is indeed so that once that
has been done, the authority to
detain, that is inherent in the power to arrest, is exhausted. The
authority to detain the suspect
further is then within the discretion
of the court. See MINISTER OF SAFETY AND SECURITY v SEKHOTO
2011 (5)
SA 367
(SCA) at 383 para 42.
[45]
However,
the discretion of a court to order the release or further detention
of a suspect is dependent upon the information provided
to it by the
prosecutor when applying for the further detention of the accused.
The prosecutor on the other hand depends on the
information provided
to her or him by the investigating officer.
[46]
It
is, therefore, obligatory for police officers to first establish the
legal justification for the further detention of a person
so as to
relay such information to the prosecutor. The prosecutor must also
apply his or her mind to the information provided so
that he or she
is in an informed position to decide whether or not to apply for the
further detention of the person in custody.
The prosecutor has a duty
to establish the facts which justify the incarceration of a detained
person and to relay same to the
presiding officer. It is upon these
facts that a court will exercise its discretion whether to release or
further detain an accused.
It is my view that an investigating
officer is duty bound to disclose all the information, whether
positive or adverse to the case,
to the prosecutor.
[47]
A
failure by either the investigating officer or the prosecutor to
comply with these duties could lead to damages being awarded
to an
aggrieved party. See BOTHA v MINISTER OF SAFETY AND SECURITY &
OTHERS: JANUARY v MINISTER OF SAFETY AND SECURITY &
OTHERS
(unreported, ECP case nos 575/09 and 576/09, 1 April 2011)
[48]
The
contention by the plaintiffs’ counsel is that the plaintiffs
were kept in custody for this long because of the tardiness
of the
police in investigating the case. He is correct.
[49]
It
is common cause that the plaintiffs were arrested on 2 July 2010 and
only released on 27 October 2010, ie 117 days later. It
is also
common cause that they were brought before court on Monday 5 July
2010, which was the first court date after their arrest.
It is
further common
cause that they were
further detained at the behest of the court. The case was postponed
several times for police investigation.
[50]
My
view is that the tardiness of the police is the cause of the
plaintiffs being detained for so long, in this instance. The
investigating
officer failed to provide the prosecutor with the
information at his disposal. According to the notes in the
investigating diary,
on 19 July 2010, the prosecutor made a request
that an identification parade be conducted as soon as possible with
all the witnesses
who can identify the suspects. The identification
parade was held on 5 August 2010 and the plaintiffs were not
positively identified
but the police failed to relay this to the
prosecutor. At the time the identification parade was held the matter
had been postponed
to the 11 August 2010. On that date the prosecutor
was not informed that the plaintiffs were not positively identified.
The prosecutor
made another entry in the investigating diary on that
date instructing the police to conduct an identity parade as soon as
possible
with all witnesses.
The case was further
postponed to the 22 September 2010 even on this day the police failed
again to inform the prosecutor about
the outcome of the
identification parade.
[51]
On
the 19 July 2010 the prosecutor had also requested the police to
verify the registration number of the getaway motor vehicle
from the
CCTV footage and to trace the registered owner of the motor vehicle.
There was no need, in my
view, for the case to be postponed for investigation in order to make
this information available to the
prosecutor. This information was
already available to the police but the investigating officer failed
and/or neglected to provide
it to the prosecutor. Firstly, the
registration number of the Ford Laser could have been immediately
provided because the Ford
Laser had been in the possession of the
police from the day the plaintiffs were arrested. Secondly, the video
footage of the scene
of crime was by then already in the possession
of the police. This is confirmed by a note made by the police on the
8 July 2010
in the investigating diary. Fouche also had a copy. He
downloaded the video footage onto his laptop at the scene of crime.
According
to him he used that video footage to arrest the plaintiffs.
The second plaintiff had also informed Fouche that he was the owner
of the Ford Laser. The question is why did the police not provide the
prosecutor with this video footage immediately. The availability
of
the video footage could have assisted the prosecutor to determine
earlier whether the plaintiffs were linked to the crime.
[52] The police kept
asking the prosecutor to postpone the case for further investigation
whilst they had the information required
by the prosecutor at their
disposal. Should this information have been given to the prosecutor a
nolle prosequi certificate could
have been issued earlier than 27
October 2010. My view is that at all material times, the police knew
that they did not have evidence
against the plaintiffs. They misled
the prosecutor. And based on the lack of information the prosecutor
had no choice but to request
the court to postpone the case. The
court as such did not have the full information when exercising its
discretion to further detain
the plaintiffs.
[53]
I
am in agreement with the plaintiffs in this respect. If the police
were diligent in their investigations the plaintiffs would
not have
been kept this long in detention. I find therefore that the
defendants are liable for the full period of detention of
the
plaintiffs.
[54]
This
case turns on its peculiar facts and is not meant to create a
precedent that where the arrest is found to be unlawful, the
ensuing
detention would be unlawful as well. Each case must be determined on
its own circumstances.
QUANTUM
[55]
In
respect of the quantum, the defendants’ counsel submitted that
both plaintiffs provided no evidence about damages for contumelia,
trauma, dignity or reputation. According to her, the plaintiffs
testified about special damages, which were not pleaded in their
particulars of claim. They failed as a result to prove damages.
[56]
The
plaintiffs’ counsel, on the other hand, submitted that the
plaintiffs did not have to quantify the amount claimed. The
amount,
according to him, has been stated in paragraph 6 of their respective
particulars of claim. His further argument was that
a person
unlawfully arrested suffers trauma and loss of dignity even though he
or she is not an outstanding member of the community.
He said the
plaintiffs were claiming general damages, which are normally suffered
by a person who has been unlawfully arrested
and detained. In
assessing these damages the court must consider the length of time
spent in detention; the fact that once arrested
for robbery people
start talking and this diminishes a person’s standing among his
neighbours. The first plaintiff had to
go through a disciplinary
hearing. His reputation has been diminished as a result among his
colleagues. Damages are awarded taking
into account the plaintiffs’
particular circumstances. He submitted that an appropriate amount for
damages in the circumstances
of this matter would be R1 500 000 in
respect of each of the plaintiffs. The length of time in custody must
count in their favour.
[57]
Proof of damages is treated differently from proof of a point in
issue which goes to the merits. If the plaintiff fails to
adduce
available evidence about damage, absolution follows; but if he or she
adduces evidence, but fails to quantify the damage
precisely, the
court must make an estimate as best it can. Failure to prove the
correct amount of compensation to which one is
entitled is not
necessarily as damaging as failure to prove a right to compensation.
See ESSO STANDARD SA (PTY) LTD v KATZ
1981 (1) SA 964
at 970 and CWH
Schmidt & H Rademeyer: LAW OF EVIDENCE Issue 10 at 3 - 36
[58]
In
this instance, I am satisfied that the evidence adduced by the
plaintiffs suffices for me to make an estimate of the damages
they
suffered. The plaintiffs, as per their respective particulars of
claim, are individually claiming a global amount of R3 510
000 in
respect of general damages for the loss of freedom, contumelia,
trauma and damages to their dignity and reputation and not
special
damages.
[59]
The
plaintiff’s counsel conceded as much that the amount of R3 510
000 claimed by each plaintiff is excessive in the circumstances
of
this case and that an appropriate amount should be R1 500 000 in
respect of each plaintiff. He contended that this amount is
fair in
the light of the courts normally awarding R25 000 per day.
[60]
The
plaintiffs were deprived of their liberty for 117 days. The length of
time a person is detained after arrest is not the only
factor to be
considered when determining damages: all the relevant circumstances
deserve consideration. However, in this instance,
very scanty
information has been provided. What can be considered is that both
plaintiffs were arrested in the presence of other
patrons of the
tavern and as such lost their standing in their eyes. They spent 117
days in detention. The first plaintiff had
to undergo a disciplinary
process to be reinstated in his employment and as such also lost his
standing among his colleagues.
[61]
Comparison with previously decided cases does not help in most cases,
as few cases are rarely directly comparable. No two cases
can be on
all fours. I however had to consider previously decided cases only as
a guide of how other courts awarded damages. The
following are the
judgments that I took into consideration: in ZEALAND v MINISTER OF
JUSTICE & CONSTITUTIONAL DEVELOPMENT &
ANOTHER
[2009] JOL
23423
(SE) the plaintiff was detained for 1 932 days, the registrar
having failed to issue a liberation warrant and he was awarded R2
000
000 which translates to R2 312 000 in 2012 according to R Kock:
Quantum Yearbook 2012; in TOBANI v MINISTER OF CORRECTIONAL
SERVICES
NO
[2000] 2 All SA 318
(SE) plaintiff was detained for 61/2 months
and was awarded R50 000 which translates to R99 000 in 2012 in terms
of R Kock: Quantum
Yearbook 2012. The plaintiff in that case had
failed to take reasonable steps to alert the prison authorities of
his plight; in
MTHIMKHULU & ANOTHER v MINISTER OF LAW & ORDER
199
3 (3) SA 432
(ECD) the plaintiffs were detained for 144 days and
depending on the type of work they were doing they were awarded R41
920 and
R40 000 respectively. The amount of R40 000 translates to
R142 000 in 2012 in terms of the R Kock: Quantum Yearbook 2012; and
in
THANDANI v MINISTER OF LAW & ORDER
[1991] 1 All SA 39
(E) the
plaintiff was kept in custody for 68 days and awarded R22 000 which
will translates in 2012 to R117 000 in terms of R Kock:
Quantum
Yearbook 2012.
[62]
The
award of general damages is by no means an easy task. There is no
basic formula for the assessment of this kind of damages.
To arrive
at a fair and just amount both objective and subjective factors may
have to be taken into account as appears in the cases
quoted above.
The facts of each particular case must be looked at as a whole. A
court has a wide discretion to award what it considers
to be fair and
adequate compensation to the injured party. See TOBANI v MINISTER OF
CORRECTIONAL SERVICES NO
[2000] 2 All SA 318
(SE) at 326e and
MINISTER OF SAFETY & SECURITY v SEYMOUR
2006 (6) SA 320
(SCA) at
para [17].
[63]
Having
considered the guidelines in the cases quoted above and taking into
account the circumstances in this instance, my view is
that, an
amount of R200 000, as general damages, in respect of each plaintiff
is appropriate and will constitute a solatium commensurate
with the
injury inflicted.
[64]
In
the premises I make the following order:
i.
The
plaintiffs succeed in their respective claims in respect of the
merits and quantum;
ii.
The
plaintiffs are awarded damages in the amount of R200 000 each plus
interest thereon at 15.5% from the date of service of the
summons;
iii.
The
defendants are to pay the costs of this action jointly and severally
the one paying the other to be absolved.
EM KUBUSHI
JUDGE
OF THE HIGH COURT
HEARD ON THE : 08
AUGUST 2012
DATE OF JUDGMENT : 13
DECEMBER 2012
PLAINTIFFS’
COUNSEL: ADV F.M.M SNYMAN
PLAINTIFFS’
ATTORNEY : MAKHAFOLA & VESTER INC
DEFENDANTS’
COUNSEL : ADV G.E. NAMENG
DEFENDANTS’
ATTORNEY : THE STATE ATTORNEYS