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[2011] ZAKZDHC 53
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Borain and Another v Minister of Safety and Security (16735/08) [2011] ZAKZDHC 53 (28 November 2011)
1
IN
THE KWAZULU-NATAL HIGH COURT, DURBAN
REPUBLIC
OF SOUTH AFRICA
CASE
NO: 16735/08
In
the matter between
STEPHEN
DAVID BORAIN
….........................................................................
First
Plaintiff
JEAN
PIERRE EDWARD WITTSTOCK
….................................................
Second
Plaintiff
and
MINISTER
OF SAFETY AND SECURITY
…........................................................
Defendant
JUDGMENT
Delivered: 28 November
2011
MURUGASEN
J
[1] This is an action for damages
arising out of the arrest and detention of the plaintiffs by a police
officer acting in the course
and scope of his employment with the
defendant.
[2] The plaintiffs, Stephen David
Borain (Borain) and Jean Pierre Edward Wittstock (Wittstock), are
security officers employed by
Is’khumba Senyathi Protection
Services (IPS). During 2007, the plaintiffs were deployed by IPS to
provide security and surveillance
services and training programs for
Nonke Petroleum, a company that transports fuel. On 16 October 2007
the plaintiffs intervened
in an incident when a driver of a Nonke
tanker unlawfully attempted to sell fuel he was transporting. The
driver subsequently lodged
a complaint of armed robbery against the
plaintiffs. The plaintiffs were arrested approximately a year later
in connection with
the complaint.
[3] The plaintiffs allege that they
were unlawfully arrested and detained at the Hillcrest Police Station
holding cells from 10h00
until their release from custody at
approximately 22h00 on 5 September 2008 at the instance of Warrant
Officer T D Mkhize acting
in the course and scope of his employment
with the defendant, the Minister of Safety and Security.
[4] The plaintiffs allege further that
during their arrest and detention, they suffered emotional distress,
embarrassment, and public
humiliation and were unable to attend to
their work related responsibilities. Each plaintiff consequently
claims general damages
in the sum of R225 000 for wrongful
arrest and detention, contumelia and emotional stress. The plaintiffs
also seek to recover
loss of income and legal costs incurred in
securing their release from custody and for related professional
legal services.
[5] The defendant denies that the
arrest and detention of the plaintiffs was unlawful and avers that
Mkhize had, in terms of
S 40(b)
of the
Criminal Procedure Act 51 of
1977
, reasonable grounds for suspecting that the plaintiffs had
committed armed robbery and/or assault with intent to do grievous
bodily
harm.
The trial proceeded on the merits and
quantum.
Factual Matrix
[6] The following facts are either
common cause or clearly established on a balance of probabilities.
1 Nonke Petroleum (Nonke), a company
which transports fuel from the Island View and Engen depots in Durban
to Johannesburg, suffered
a high incidence of fuel theft during the
course of such transportation.
2 During 2007 Nonke hired the services
of IPS to provide security and surveillance as well to educate the
drivers on safety on the
road. The two plaintiffs held training
courses for the drivers on hijacking response and safe driving.
3 At about 23h34 on 16 October 2007,
one of Nonke’s vehicles, Tanker 26 bearing registration plates
NJ16089 driven by an employee
Sizwe Kubeka, departed the Bayhead area
and approached Shongweni at approximately 24h10. The vehicle was
under covert surveillance
by the plaintiffs who were following the
vehicle in their own vehicle.
4 At the Shongweni exit from the N3
Highway, Tanker 26 deviated from its journey plan and made an
unauthorised stop. The plaintiffs
observed the tanker at a distance
before driving up to it. They found Kubeka with an Indian male,
Mahabeer, who had paid him R3000
for the fuel Mahabeer was about to
move from the tanker into the flowbin which was on his vehicle. The
plaintiffs interviewed Mahabeer
and recorded information received
from him and took photographs
inter alia
of Kubeka, the
tanker, Mahabeer, his vehicle, the flowbin and siphoning equipment.
Mahabeer was then allowed to leave.
5 They then reported the incident to
the owner of Nonke, Badat, who instructed them to report the incident
to his managers. Arrangements
were made for the tanker to be driven
back to Nonke’s premises. In the interim the plaintiff’s
took possession of the
R3000 that Mahabeer had paid to Kubeka and 2
private cellphones which were in the tanker contrary to both company
policy and legislation.
Kubeka however fled the scene.
6 On the same night the cellphones and
money were handed to Nonke’s operational manager, Wilken, and
the tanker was driven
back to Nonke’s premises by another
employee, Haribans. The plaintiffs complied a report with photographs
on the incident,
dated 22 October 2007, which was furnished to Badat.
Nonke subsequently instituted disciplinary proceedings against Kubeka
who
failed to attend, and was dismissed.
7 On 17 October 2007 at approximately
10h00 Kubeka reported that he had been hijacked to Constable Z Ngcobo
at the Hillcrest Police
Station. He was unable to furnish the vehicle
registration number and she called his employers as she was required
to circulate
the vehicle’s details. A Nonke employee, Rieckerd,
informed her that Kubeka had been stealing fuel and that the vehicle
which
he alleged had been hijacked was with Nonke. Consequently she
refused to register the complaint of armed robbery as she was of the
opinion that Kubeka’s report was false. She made an entry to
that effect in the Occurrence Book under entry 1405 at 10h45
on 17
October 2007.
8 Nonke’s employees informed the
plaintiffs of Kubeka’s attempt to report the ‘hijacking’,
and that the
police had been apprised that his report was false and
that Kubeka had unlawfully attempted to sell fuel.
9 On 22 October 2007 Kubeka reported a
complaint of armed robbery and assault with intent to do grievous
bodily harm at the Hillcrest
Police Station, alleging that he had
been robbed of 2 cellphones and R700 at gunpoint by 2 unknown white
males and assaulted with
an iron rod by them. He made a statement to
Reserve Constable Sibiya who also opened a docket under CAS
283/10/2007. The docket
was handed to Captain R S Gcwabaza who
assigned it to Warrant Officer T M Radebe on 23 October 2007.
10 On 23 October 2007 Radebe, in an
entry made at 12h45 in the Investigation Diary, recorded that Nonke
had reported to him that
Kubeka was lying and that he had been caught
by private investigators while selling diesel; that he was not
hijacked or robbed
but had fled from the N3 leaving the truck. In a
further entry at 14h00 on 24 October 2007, Radebe cross referenced to
OB Number
1405/10/2007 and recorded ‘Kindly close this docket
as false’.
11 On 5 August 2008 the docket was
handed by Capt Gcwabaza to Mkhize, with instructions to investigate
the complaint and that the
complainant was not robbed of his vehicle
but of his money and cellphones. On 6 August 2008 Mkhize interviewed
the complainant
who informed him that the plaintiffs were employed at
the same company as him.
12 Mkhize then spoke telephonically to
Badat who furnished him the plaintiff’s contact numbers. Mkhize
then telephoned Wittstock
who undertook to attend on Mkhize at the
police station. An entry dated 26 August 2008 reflects that Wittstock
informed Mkhize
that he had called at the police station to see him
but no one attended to him. On 4 September 2007 Mkhize spoke to
Wittstock who
arranged to meet him with Borain on 5 September 2008.
13 When the plaintiffs presented
themselves at the office of Mkhize at the Hillcrest Police Station on
the morning of 5 September
2008, they were placed under arrest by
Mkhize at approximately 10h00. While being processed in the charge
office the plaintiffs
were exposed to former colleagues in the police
services and other persons who knew them. They were then handcuffed
and escorted
to the holding cells at the police station, where they
were detained with other suspects. When the plaintiffs were unable to
persuade
Mkhize not to arrest them although they presented him with
statements they had prepared from the report they had presented to
Badat,
Borain contacted his father to obtain legal representation and
Wittstock called Badat to verify their version to Mkhize and secure
their release. At the request of Mkhize, the firearms belonging to
the plaintiffs were brought from their homes and handed in at
the
Hillcrest Police Station and entered in the SAP13 register under
reference SAPS13/854/2008.
Their legal representative, attorney
Storm Hattingh, attended on Mkhize at the police station during the
morning while the plaintiffs
were in the charge office, but failed
to persuade Mkhize to release the plaintiffs although she arranged
for the plaintiff’s
firearms to be handed in, on the
understanding that the plaintiffs would then be released. She then
arranged with PK Naidoo,
the senior public prosecutor at Pinetown
Magistrates Court for a bail application to be heard. The hearing
did not take place
as Mkhize did not arrive at the court with the
plaintiffs. Badat also presented himself at the police station
having advised
Mkhize he would do so after he attended mosque, but
Mkhize was not there.
Hattingh was instructed to launch an
urgent application to the High Court for bail. She gave notice to
the State attorney, the
Registrar of the High Court and the judge on
duty. She then proceeded to her office with the counsel on brief and
prepared the
application papers. At about 19h30 she received a
telephone call from Mkhize that a bail application would be held at
20h00 at
the Hillcrest Police Station.
She instructed counsel to attend the
hearing which he did with Borain’s father. Senior Public
Prosecutor Ngcobo of the Pinetown
Magistrates court was at the
police station. He perused the file and having advised Mkhize that
the allegations by Kubeka were
false, he endorsed the file ‘
nolle
prosequi’.
The plaintiffs were released on warning and
were directed to present themselves at the Pinetown Magistrate’s
court on the
following Tuesday. The matter was remanded to 19
September 2008, when the charges against the plaintiffs were
formally withdrawn.
Issues for determination
[7] The issues for determination by
this court were :
whether the defendant had discharged
his onus to prove on a balance of probabilities that the arresting
officer had acted on a
reasonable suspicion in effecting the arrest
of the plaintiffs;
if he had not, whether the plaintiffs
had suffered damages consequent upon such unlawful arrest and
detention;
if they had, the quantum of damages
suffered by the plaintiffs.
The Law
[8] T
he
onus
of proving on a balance of probabilities that the
arrest and detention were lawful is on the defendant, who in denying
that the
plaintiffs were unlawfully arrested and detained, relies on
the provisions of
s 40(1)(b)
of the
Criminal Procedure Act No 51 of
1977
which provides that:
‘
A peace
officer may without a warrant arrest a person-
(a)…
(b) whom he reasonably suspects of
having committed an offence referred to in Schedule 1, other than the
offence of escaping from
lawful custody.’
[9] In
Duncan v Minister of Law and
Order 1986 (2) 805 AD Van Heerden J held at page 818 para F-H :
‘
The so called jurisdictional
facts which must exist before the power condoned by S40 (1)(b) of the
present Act may be invoked, are
as follows:-
The arrestor must be a peace officer.
He must entertain a suspicion.
It must be a suspicion that the
arrestee committed an offence referred to in Schedule 1 to the Act
(other than one particular
offence).
The suspicion must rest on reasonable
grounds.”
[10] Therefore while the peace officer
is vested with a discretion, such discretion must be properly
exercised. But ‘the test
is not whether a policeman believes
that he has reason to suspect, but whether on an objective approach,
he in fact has reasonable
grounds for his suspicion’. (
Duncan
supra 814 D-E)
[11] Therefore the test as to whether
the suspicion of the officer effecting the arrest had been reasonable
is an objective test.
(Ralekhwa v Minister of Safety and Security
2004 (1) SACR 131
(T) at 134 h-i)
.
[12] However, ‘reasonable
suspicion does not imply that there must be a prima facie case
against the suspect. Nor does a peace
officer when effecting arrest
necessarily have to have the intention of bringing the arrestee
before court to be prosecuted. A
reasonable suspicion, coupled with
the intention to make further enquiries before deciding whether the
case merits prosecution,
will suffice.’
Duncan v Minister of
Law & Order
1984 (3) SA 460
(T) at 460-461.
Argument
[13] On behalf of the plaintiffs, Mr
Prior submitted that the defendant had failed to discharge his onus
to show that Mkhize had
acted on a reasonable suspicion that the
plaintiffs had committed armed robbery and/or assault, as it was
apparent from the largely
unchallenged evidence presented by and in
support of the plaintiffs, that he failed to properly consider,
investigate or access
all the information relevant to the complaint
against them. Instead he had relied on the statement made by the
complainant some
days after the incident, which contained material
discrepancies with his initial report at the same police station. The
plaintiffs
had also testified credibly that although they were not
flight risks and had made a concerted effort to persuade Mkhize that
they
had not committed armed robbery, they were arrested in
infringement of their constitutional rights. As a result of their
arrest,
they had been traumatized and exposed to humiliation which
constituted aggravating factors which impacted on the quantum of
damages
suffered by the plaintiffs. The quantum claimed by the
plaintiffs viz R100 000 was an appropriate sum which accorded
with
the awards in other similar cases. In conclusion, Mr Prior
contended that the conduct of Mkhize and the defendant warranted an
order for costs on an attorney and client scale.
[14] In response Ms Jikela contended
that the defendant had discharged his onus as Mkhize had had acted on
a reasonable suspicion.
The initial complaint had related to
hijacking and not the armed robbery later reported by the
complainant. Gcwabaza had reopened
the docket for valid reasons as it
related to the armed robbery and Mkhize’s reasonable suspicion
was justified as the plaintiffs
confirmed their presence at the crime
scene, that they possessed firearms and that they had taken money and
cellphones from the
complainant. As armed robbery is an offence in
terms of Schedule 6 of the Criminal procedure Act 51 of 1977, S60
(11)(a) justifies
the arrest and detention. She urged the court to
find that as ‘suspicion’ connotes an absence of certainty
and of adequate
proof, Mkhize had acted on a reasonable suspicion,
and that the arrest of the plaintiffs was not unlawful. She submitted
further
that a punitive costs order as requested by plaintiffs in
argument were not justified as the defendant was entitled to defend
the
matter so that it could be properly adjudicated in court. Insofar
as the quantum is concerned, she conceded that the plaintiffs
were
entitled to their legal costs and damages at the rate of R450 an hour
for the 14 hours in which the plaintiffs were detained.
Reasonable Suspicion or Unlawful
arrest
[15] According to Mkhize at the time
of the arrest, he had the following grounds which constituted
reasonable suspicion against
the plaintiffs :
1 The statement of the complainant
that he had been robbed at gunpoint by two unknown males of 2
cellphones and R700, deposed to
on 23 (22) September 2007.
2 The interview with the complainant
who informed him that the ‘suspects’ worked with him.
3 The confirmation by Badat that the
‘suspects’ were the plaintiffs who provided security to
Nonke.
4 Confirmation by the plaintiffs that
they were present at the scene of alleged ‘armed robbery’
and that they owned
firearms.
[16] In
Duncan (1984) supra
at
466 A-B
the court held that ‘…a reasonable suspicion
could also conceivably be formed where a person has been seen at the
scene
of a crime and upon being questioned gives a false alibi or
refuses to answer questions…’.
The conduct of the plaintiffs herein
may be clearly distinguished from the above circumstances.
[17] The plaintiffs admitted to being
at the scene of the crime with Kubeka. Wittstock testified that
Mkhize requested them to come
to the police station to make a
statement so that the docket in respect of the armed robbery could be
closed. It is apparent from
the facts that as the plaintiffs were not
aware of the charge laid by Kubeka with Sibiya, they were under the
impression that they
were presenting themselves at Mkhize’s
office to assist with statements in respect of the hijacking Kubeka
had first alleged.
They therefore prepared statements based on their
report to Nonke and took it to Mkhize. Although Mkhize denies that he
requested
the plaintiffs to bring statements as he would have taken a
warning statement from them, their evidence was not challenged when
they testified. Wittstock who is the person who communicated with
Mkhize, persisted that Mkhize had asked him to bring a statement
on
more than one occasion and that he had specifically advised Mkhize
that he had attended the police station on more than one
occasion
between 20 August 2008 and 4 September 2008 in an attempt to give him
the statement after they had spoken telephonically
on 20 August 2008.
Mkhize himself recorded that Wittstock had advised him that he had
been at the police station in the investigation
diary on 26 August
2008.
[18] Thus even before the arrangement
was made for the plaintiffs to attend on Mkhize on 5 September 2009,
they were cooperating
with his request to make a statement albeit in
respect of the alleged hijacking. In the statements which they had
prepared the
plaintiffs specifically state that the money (R3 000)
which Kubeka had received for the fuel (R3 000) and his 2
cellphones
were seized at the scene and handed to Wilken on his
arrival at the scene and a report compiled and handed to Nonke
thereafter.
[19] The plaintiffs testified,
unchallenged, that they presented their statements to Mkhize who
barely glanced at it but advised
them that he was taking it to his
Captain, and returned shortly thereafter to advise them that they
were being arrested.
[20] In my view, Mkhize ought to have
realized that he had two materially disparate versions from Kubeka
and the complainants. But
more significantly, there was already a
material discrepancy between Kubeka’s statement and his version
to Mkhize, in that
he initially reported that he had been robbed by
two unknown men but had informed Mkhize that the men were security
guards for
Nonke. Further the plaintiffs admitted to taking R3 000
from Kubeka while Kubeka stated that he was robbed of R700. These
discrepancies would have been immediately apparent to Mkhize.
Therefore before taking any further
action, or even forming a reasonable suspicion, it was incumbent upon
Mkhize to consider and
evaluate the versions of Kubeka and the
plaintiffs in the light of the other information available to him and
to obtain further
information from the sources which were apparent
from the docket itself.
[21] Radebe’s notes on the
Investigation diary is a clear indication that there are two
versions:
One which relates to the alleged
hijacking and the other to the armed robbery of
cellphone and money. The docket was
endorsed by Radebe with a cross reference to
Occurrence Book entry OB Number
1405/10/2007 and his endorsement that the docket
was closed as the complaint was false.
Mkhize therefore had clear access to
the detailed entry made by Constable Ngcobo, from which it was
evident that Kubeka had made
an earlier allegation of hijacking in
which he had not reported that he had been robbed of money and
cellphones. This together
with the dates of the reports ought to have
placed Mkhize on his guard, particularly as the earlier report was
made by Kubeka on
the morning of the incident and the second report
some five days later. Mkhize had recourse to his colleagues to
discuss their
reports and conclusions but failed to avail himself of
the opportunity to do so. He was evasive when crossexamined on his
failure,
as he initially alleged that Radebe was on sick leave, but
when on his own version he admitted being with Radebe on the day of
the arrest, he conceded that he had not sought any clarification from
them.
[22] Although an arrest in terms of S
40 (b) envisages that further investigation will follow as there may
not be a prima facie
case, it would have in the aforesaid
circumstances been reasonable for Mkhize to make further enquiries to
Nonke before he interviewed
the plaintiffs. Badat confirmed that
several telephone numbers recorded on page 11 of the police docket
included his personal number
and telephone numbers for senior
employees of his company. Therefore Mkhize could have interviewed
Badat and the employees of Nonke
to obtain clarification and further
information about Kubeka and the plaintiffs, even before 5 September
2008.
[23] As Mkhize had verified with Badat
that the plaintiffs were still employed as ‘security’ for
Nonke when he obtained
their contact details, he could, at that stage
already, have obtained further details in respect of the incident on
16 October
2007 from Badat. Had he done so, he would have been in a
better position to evaluate the plaintiffs’ version and the
contents
of their ‘statements’ in the light of their
complicity as alleged by Kubeka.
[24] Badat would have been able to
confirm that money to the value of R3 000 and two private
cellphones were seized from Kubeka
and handed to Wilken. Instead
Badat confirmed that Mkhize did not ask him about the money or the
cellphones. Had he been asked,
Badat may even have furnished Mkhize
with a copy of the plaintiff’s report dated 22 October 2007,
which would have better
informed Mkhize about the complaint he was
investigating, as the report consisted of photographs and a detailed
narration of events
locations and the items recovered. Under
Section
3 Interpretation,
the plaintiffs’ report states:
‘
As the agreed amount of money
had been handed over to the driver it was seized with two private
cellular phones belonging to the
driver. The money and cellular
telephones were handed to Mr Wilken on his arrival at the scene.’
[25] Badat was also in a position to
confirm that the plaintiffs were known to Kubeka as they had held
training courses for Nonke’s
drivers of which Kubeka had been
one. Mkhize could also have verified the conclusion by Ncgobo and
Radebe that the first allegation
by Kubeka of hijacking was false
with Nonke which would have impacted adversely on Kubeka’s
credibility and cast suspicion
on his complaint rather than on the
plaintiffs.
[26] In the absence of such a course
of enquiry being followed by Mkhize, his suspicion that the
plaintiffs had committed armed
robbery, cannot be considered
reasonable. But even when the plaintiffs arrived at the police
station with their ‘statements’
and sought to persuade
him of their innocence, he ought to have taken cogniscence that they
were not merely protesting their innocence
but they were referring
them to verifiable sources to substantiate their allegations.
[27] As held in
S v Purcell-Gilpen
1971 (3) SA 548
(RAD) at 554 C:
‘
Where the opportunity exists
either to allay or confirm an initial suspicion, that opportunity
should be taken, and the failure
to take it is a failure to act as a
reasonable but honest man.’
[28] The response of the prosecutor
Ngcobo when he read the docket that it was a bogus claim, and his
questioning of Mkhize as to
why the docket was opened, and the
plaintiffs subsequent release on warning supports the plaintiff’s
contention that the
their arrest and detention was unlawful as there
was no grounds on which Mkhize could have conceived a reasonable
suspicion that
they had committed armed robbery.
[29] Badat testified that although he
spoke telephonically to Mkhize after Wittstock telephoned him to
inform him that they required
his intervention as they were being
arrested, Mkhize was not interested in what he was saying and that
when he went to the police
station to see Mkhize personally, Mkhize
was not there although he had told Badat that he would wait for him.
But when Badat went
back to the police station in the evening of 5
September 2008, the prosecutor from the Pinetown Magistrates court
asked him about
the involvement of IPS with Nonke; he had then
explained that the services of IPS were employed by his company which
had resulted
in drastic reduction in fuel loss, and prosecution and
convictions in respect of such fuel loss.
[30] However from the evidence of the
plaintiffs, Badat and Ms Hattingh it is apparent that Mkhize had not
conducted the investigation
with an objective perspective. Not only
had he failed to access the information available to him prior to the
arrest of the plaintiffs,
he also adopted an obstinate and
uncooperative attitude.
[31] Badat testified that he believed
that Mkhize had already made up his mind because when he explained
what had taken place during
the incident on 16 October 2007, and the
attempted theft by Kubeka, Mkhize had responded that he had a
statement from Kubeka and
whatever Badat said to him would not
matter. Mkhize had also advised him that he would be putting the
plaintiffs in jail and he
would see ‘what would happen on
Monday’.
Badat also testified that Mkhize was
aggressive and repeated that he was locking up the plaintiffs and
nothing that anybody could
do would make a difference. In Badat’s
view Mkhize was deliberately disrespectful to him because when Badat
requested that
he discuss the report at the police station, Mkhize
had replied ‘Come and see me’ but had failed to wait for
Badat.
He confirmed further that the arresting officer did not
discuss or request the cell phones and the money from him.
[32] Mkhize’s obstinate and
uncompromising attitude is also confirmed by the plaintiffs and their
attorney. Wittstock testified
that the more he appealed to Mkhize,
the more confrontational Mkhize became. Borain’s evidence that
Mkhize was also aggressive
towards him and commented that he had the
physical stature of a fighter who liked to beat up black people was
also corroborated
by Wittstock.
[33] Hattingh testified that when she
introduced herself to Mkhize, he did not greet or acknowledge her. He
refused to discuss why
the plaintiffs had been arrested, and told her
only that an investigation was pending, he was still taking
statements and nothing
had been finalized. He was however intent on
keeping the plaintiffs in custody over the weekend. She also
testified that although
Mkhize had advised the plaintiffs’
counsel that he would not oppose bail if the plaintiff’s
firearms were handed to
the police, and this was done, Mkhize had
failed to attend or take the plaintiffs to the Pinetown Magistrates
court, where the
senior Public Prosecutor had agreed to hear the bail
application. This had then led to the preparation of the urgent High
Court
Application, which was preempted by the plaintiffs being
released before the application was moved.
[34] It is appropriate to note that
the plaintiffs testified in an exemplary manner; they were clear and
coherent; their demeanour
was frank and credible; their evidence
although largely unchallenged, remained uncompromised and consistent
under crossexamination
and they corroborated the testimony of each
other without any material discrepancy. Badat, Hattingh and Constable
Ncgobo were also
clear and coherent witnesses. However despite
Reserve Constable Sibiya’s confidence in his ability to carry
out his duties
efficiently, he was confused about the discrepancy of
the dates on the investigation diary and Kubeka’s statement
although
he was confident that he had met Kubeka on one day only. But
nothing turned on this.
[35] Mkhize evinced an arrogant and
uncooperative attitude when testifying and initially attempted to
avoid answering questions
put to him by his own counsel, by alleging
that his memory failed him and had to be admonished by the court
after his counsel confirmed
that she had consulted with him several
times prior to the trial. Neither was he impressive under
crossexamination. He was evasive
and unconvincing in his denials of
the manner in which he responded to the plaintiffs, their legal
representatives and Badat and
their concerted efforts to provide him
with convincing and verifiable information pertaining to the falsity
of the complaint of
armed robbery. His conduct lent credibility to
the plaintiff’s allegations that Mkhize did not investigate the
complaint
laid by Kubeka in an appropriately objective manner and
that he effected or caused the unlawful arrest of the plaintiffs.
[36] I am accordingly constrained to
find that Mkhize’s conduct in acting on Kubeka’s
complaint was not that of a reasonable
man.
‘
The grounds of suspicion must
be those must be those which would induce a reasonable man to have
suspicion’.
(R v Van
Heerden
1958 (3) SA 150
(T) at 152 E)
[37] In
Mabona and Another v
Minister of Law and Order
and Others
1988 (2) SA 654
(SE) Jones J held at 658 F-H:
‘
It seems to
me that in evaluating his information a reasonable man would bear in
mind that the section authorises drastic police
action. It authorises
an arrest on the strength of a suspicion and without the need to
swear out a warrant, i.e. 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 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.’
[38] As already found Mkhize’s
conduct falls short of the conducted expected of the reasonable man
and his suspicion was not
based on solid grounds. In the premises, I
am not persuaded that the defendant has discharged the onus on him
and I am satisfied
that the arrest of the plaintiffs cannot be
justified on the grounds of reasonable suspicion.
[39] As held in
Duncan (1984) supra
at 466 D-E
‘
the power of arrest without a
warrant is a valuable means of protecting the community. ……..on
the other hand the law
is jealous of the liberty of the subject and
the police in exercising this power must be anxious to avail
mistaking the innocent
for the guilty. …….. they should
keep an open mind and take notice of every relevant circumstance
pointing either
to innocence or to guilt’.
[40] Given the constitutional
imperatives that prevail in our democracy, an arrest is a drastic
invasion of personal liberty and
must be justifiable despite the
protection of the right to freedom of person offered by the
Constitution.
(Louw v Minister of Safety & Security
2006 (2)
SACR 178
(T) at 187; Le Roux v Minister of Safety & Security &
Another
2009 (4) SA 491
(N))
[41] Mkhize clearly failed to take
cogniscence of the obligation on him to effect arrest only if the
drastic action was justifiable
and there was no further evidence to
support the defendant’s contention that Mkhize had arrested or
caused the arrest of
the plaintiffs on reasonable suspicion that they
had committed armed robbery.
I am therefore satisfied that the
plaintiffs’ arrest and detention was unlawful.
Damages
[42] The plaintiffs testified that
after Mkhize advised them that they were being arrested, he provoked
and challenged them by making
personal comments about them and
refusing to take cogniscence of their service in the South African
Police Services (SAPS) and
that they were still contributing to law
enforcement.
[43] Borain testified that he held the
rank of constable in SAPS from 2001 until 2007. He thereafter
established IPS of which he
is the sole member. He has worked on
several high profile security projects including the 2010 FIFA World
Cup and has provided
security services at the Sun Coast Casino. He is
still a reserve police officer with a force number and works with the
Rescue and
Recovery Unit.
[44] Wittstock was a member of the
South African Police Services from 1990 to 2007 and held the rank of
Inspector. He was a senior
officer involved in crime intelligence in
the provincial and national offices in Durban. He was responsible for
major projects,
one being Operation West which targeted the import
and export of drugs by syndicates, prostitution and robbery in
Durban. On occasion
he still assists with the management of deep
cover agents. He left the South African Police Services in 2007 and
joined Borain
as an operations manager in IPS.
[45] The plaintiffs were processed in
the charge office in the presence of members of the public, the
charge office personnel and
other members of SAPS several of whom
they knew. Mkhize continued to mock them in the charge office by
Mkhize, and the persons
present laughed at the plaintiffs. At this
stage they had to remove their shoes laces and belts and hand over
their keys, cellphones
and wallets. Boraine was forced to clutch at
his pants to prevent it from falling off and exposing the lower half
of his body.
[46] Several members of the police
dog unit whom Borain had worked with were present in the charge
office. A senior policeman, Captain
Fourie who knew Borain, enquired
from him what was happening; Borain advised him that he was being
arrested on a charge of armed
robbery.
Wittstock confirmed that Borain had
seen and spoken to Captain Fourie. He himself had seen Senior
Superintendent Joseph whom he
had worked with in the Durban Riot
Unit. Joseph asked him why he was been arrested and what he had done;
Wittstock advised him
that he had not done anything unlawful, and
asked Joseph to speak to Mkhize.
After they were processed, the
plaintiffs were handcuffed with their hands behind their back and
escorted through an open courtyard
to the holding cells by two
policemen.
[47] The plaintiffs testified that
they were extremely humiliated and had to convince people of his
innocence after their arrest
had been observed. They had been
handcuffed although they were not flight risks and had not physically
resisted arrest in any way.
They were placed in a cell with other
suspects. The plaintiffs testified to the unsanitary condition of the
cell and toilet and
ablution facilities.
[48] Wittstock further testified that
he had an appointment with Dr Graham Fuller, a Neurosurgeon at St
Augustine Hospital at 11h00
on the day of the arrest. He had had
spinal surgery and one of the titanium screws in the rod fusing his
spine had come loose.
It had taken more than a month to get the
appointment with Fuller and was on medication for pain in the
interim. When he informed
Mkhize about the appointment and that it
was essential that he keep the appointment, Mkhize responded that he
should make another
appointment. Wittstock had since undergone
further surgery.
[49] None of the aforegoing evidence
was seriously challenged or undermined by the defendant, even after
Mkhize testified. As already
held, Mkhize was not a credible witness
and his attitude in court lent credibility to the plaintiff’s
allegations about his
conduct.
[50] The core business of IPS is
investigating and guarding; the plaintiffs also hold health and
safety and behavioral response
educational courses and training for
the drivers of companies they monitor. Thus the arrest of Boraine and
Wittstock had the potential
to impact adversely on their suitability
and competence to provide such services as they offer and their
reputation in the security
industry. However no evidence was
furnished that they had suffered any such loss consequent to their
arrest.
[51] Nevertheless I am satisfied that
the plaintiffs are entitled to general damages pursuant to their
arrest as a result of the
unlawfulness thereof, the humiliation to
which they were exposed and the conditions under which they were
detained.
Loss of income
[52] The plaintiffs were unable to
undertake the surveillance operation which was scheduled to take
place between 5 - 8 September
2007. They were in custody on 5
September 2007; they had been traumatized by their arrest, and their
firearms had been surrendered
to the police. There was no one else
who was qualified to undertake the surveillance. Furthermore the
company that employed them
for the operation required the plaintiffs’
specific expertise and knowledge. They consequently suffered loss of
the R25 000
they would have been paid for the surveillance operation.
Legal Costs
[53] The legal costs incurred by the
plaintiffs was not challenged. The statement of account from Storm &
Company was in respect
of the costs incurred by both plaintiffs and
lay to be divided between them.
[54] During the closing address, Mr
Prior advised that the quantum of the damages claimed by each
plaintiff was R127 900, which
sum was constituted by R100 000
for general damages the plaintiff’s half share of the legal
costs and the loss of income.
[55] The trial court has a wide
discretion when it considers fair and adequate compensation to the
injured party. It must consider
all the factors and circumstances
relevant to the assessment of damages and past awards.
[56] As held in
Minister of Safety
& Security v Tyulu
2009 (2) SACR 282
SCA by Bosielo AJA
at
289 – 290 para [26] :
‘
In the assessment of damages
for unlawful arrest and detention, it is important to bear in mind
that the primary purpose is not
to enrich the aggrieved party but to
offer him or her some much-needed solatium for his or her injured
feelings. It is therefore
crucial that serious attempts be made to
ensure that the damages awarded are commensurate with the injury
inflicted. However, our
courts should be astute to ensure that the
awards they make for such infractions reflect the importance of the
right to personal
liberty and the seriousness with which any
arbitrary deprivation of personal liberty is viewed in our law. I
readily concede that
it is impossible to determine an award of
damages for this kind of
injuria
with any kind of
mathematical accuracy. Although it is always helpful to have regard
to awards made in previous cases to serve as
a guide, such an
approach if slavishly followed can prove to be treacherous. The
correct approach to have regard to all the facts
of the particular
case and to determine the quantum of damages on such facts (
Minister
of Safety and Security v Seymour
2006
(6) SA 320
(SCA) at 325 para 17;
Rudolph
and Others v Minister of Safety and Security and Another
2009
(2) SACR 271
(SCA) paras 26-29).’
[57] Relevant facts in this matter are
the age of the plaintiffs, the circumstances, nature and duration of
their arrest, the conditions
under which they were detained, their
frustrated attempts to be released on bail, their professional
standing and the conduct of
the police towards them.
[58] In
Minister of Safety and
Security v Seymour
2006 (6) SA 320
(SCA)
on appeal the Supreme
Court held that R90 000 was an appropriate award in respect of a
63 year old man who had been unlawfully
arrested and detained for 5
days albeit 24 hours was in custody and the remaining period under
police guard in hospital.
[59] In
Rudolph v Minister of
Safety & Security
2009 (5) SA 94
(SCA)
the court held on
appeal held that an award of R100 000 for general damages was
appropriate when the appellants were unlawfully
arrested and detained
for 3 days and 4 nights and subjected to humiliation and under
extremely unhygienic conditions.
[60] In
Minister of Safety &
Security v Kruger
2011 (1) SACR 529
SCA
the court held that ‘the
police have a duty to carry out policing in the ordinary way. They
have no business setting out to
turn an arrest into a showpiece’.
The suspect was shown in a television broadcast being handcuffed and
led to a police vehicle.
The respondent was awarded R50 000 for
unlawful arrest and detention and R20 000 for
iniuria
.
[61] In
Minister of Safety &
Security v Tyulu
2009 (2) SACR 282
SCA
the court found that
although the detention was for a short period, there were aggravating
factors: the arrestee was a magistrate
arrested by people with whom
he normally worked; he was manhandled and dragged into a police
vehicle; he was taken to the scene
of a motor collision and made out
to be a criminal; he was arrested for an improper motive. As a man of
considerable standing in
the community he must therefore have been
severely embarrassed, humiliation and shock and concomitant anguish
and stress. He was
awarded R15 000.
[62] Having evaluated the relevant
facts in the light of the comparable cases and the Classified Listing
of Inflation Adjusted Awards
as set out in the Quantum Handbook 2011,
I am of the view that a fair and appropriate award of general damages
for the unlawful
arrest and detention of the plaintiffs is an amount
of R40 000 each.
Together with the award for legal
costs and loss of income the plaintiffs are awarded damages in the
sum of R67 900.
Costs of the action
[63] Mr Prior submitted that a
punitive order for costs on an attorney and client scale is
appropriate given that from the facts
available, the defendant ought
to have realized that the arrest of the plaintiffs was unlawful and
not opposed the relief sought.
[64] Ms Jikela contended in response
that the defendant has the right to defend claims against him and a
punitive costs order is
therefore not warranted. Further the legal
expenses and loss of earnings have been established and quantified at
a lesser sum than
originally claimed.
[65] In
Ramakulukusha
v Commander, Venda National Force
1989 (2) SA 813
(V) at 855
it
was held that in order to award attorney and client costs, the court
had to find that ‘the defendant adopted dishonest
tactics in
the course of the action or a vexatious and frivolous attitude
towards the plaintiff or showed malicious intent to draw
the matter
out deliberately so that the plaintiff would be mulcted by his won
costs and would not be able to continue the matter…..’
.
[67] I am unable to find such an abuse
of court proceedings. Further, I am not persuaded that a punitive
costs order is justified
merely because the defendant did not concede
the merits. There is a responsibility to the public at large, from
whose contributions
the awards and costs of applications of this
nature are paid, that matters in which an organ of State is sued, be
adjudicated in
a court of law to establish liability and the degree
thereof, and for a fair and equitable assessment of quantum.
Order
Judgment is granted in favour of the
plaintiffs for:
payment in the sum of R67 900 to
each plaintiff;
interest thereon at the rate of 15,5%
per annum from date of judgment to date of final payment;
costs of suit
________________
Murugasen J
Counsel for the Plaintiff: Adv PC
Prior
Instructed by: TATE, NOLAN &
KNIGHT INC 15 Ennisdale Drive
Durban North
Counsel for the Respondent: Adv S
Jikela
Instructed by: STATE ATTORNEY
6
th
Floor Metlife Building
391 Smith Street
Durban