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[2011] ZAECMHC 3
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Erasmus v MEC for Transport - Eastern Cape Province (210/08) [2011] ZAECMHC 3; 2011 (2) SACR 367 (ECM) (3 February 2011)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE - MTHATHA
CASE
NO: 210/08
DATE
HEARD: 07 & 08 /12/2010
DATE
DELIVERED: 03/02/2011
In the matter between
ZOLEKA ERASMUS
…..................................................................................
PLAINTIFF
and
MEMBER
OF THE EXECUTIVE COUNCIL
FOR TRANSPORT – EASTERN CAPE
PROVINCE
….............................
DEFENDANT
JUDGMENT
ROBERSON J:-
[1] This is an action for damages for
wrongful arrest and detention. It is common cause that on 29 August
2007, at about 07h30,
the plaintiff was arrested, without a warrant,
at a roadblock at Ngqeleni, by Traffic Officer Fillis, acting in the
course and
scope of his employment with the defendant. The offence
for which the plaintiff was arrested was driving a motor vehicle
without
a driving licence, alternatively failing to carry her driving
licence in the vehicle which she was driving. After the arrest, the
plaintiff was taken in a South African Police Services (SAPS) vehicle
to Ngqeleni police station, from where she was released at
about
13h00 the same day, after an admission of guilt fine for the
alternative offence had been paid. The defendant denied that
the
arrest was unlawful and denied in particular that the plaintiff had
been detained at the police station, alleging that she
had not been
put in a cell, but in a “waiting room”.
[2] The plaintiff is a 42 year old
school teacher. She testified that on 29 August 2007 she was on her
way to work when she was
stopped at the roadblock by Fillis, who
checked her vehicle licence disc and demanded her driving licence.
She did have a valid
driving licence at the time but that morning she
had left her wallet containing the licence at home. She had her
identity document
and her Walter Sisulu University student card with
her, which she showed to Fillis, but Fillis wanted only her driving
licence.
She also had a university disc on her windscreen containing
her name and student number. Fillis pulled her out of her vehicle and
instructed her to join other persons who had been arrested. She was
handcuffed to an unknown man, but pleaded to be allowed an
opportunity to make a telephone call. She was then placed in an
official vehicle and telephoned her school principal, Mr. Majeke,
who
came to the scene of the roadblock. She alighted from the vehicle and
she and Majeke arranged that he would collect her driving
licence
from her domestic employee at a meeting point in Mthatha, and bring
it to her at the roadblock.
[3] A colleague, Mr. Mpuku, also
arrived at the scene and she alighted from the vehicle to speak to
him because she was concerned
about her vehicle and, having left her
keys in the vehicle, she wanted him to take care of it. She also
alighted from the vehicle
in order to find out from Fillis if he was
going to take control of her vehicle, but he told her that he would
not do so. She and
other colleagues, who had found her at the scene,
tried to explain to members of SAPS that her driving licence was on
the way but
Fillis told her she was disobeying his orders and she was
again handcuffed to a man, a taxi driver whom she did not know. A
crowd
had gathered at the roadblock, and amongst the crowd were high
school children whom she had previously taught. Some of them appeared
sympathetic to her, but others laughed and clapped. Mpuku approached
Fillis to try to find a solution but Fillis told Mpuku that
she had
been arrested and had to remain there. Fillis also told Mpuku that he
could drive the plaintiff’s vehicle but he
would first have to
see his driving licence and test him for consumption of alcohol.
[4] The plaintiff saw Majeke arrive
and speak to Fillis, but by this time the SAPS minibus had arrived
and she and other arrested
persons had to board the minibus. Still
handcuffed, they were taken to Ngqeleni police station and put in a
room, the burglar door
of which was locked. There was one other woman
amongst the arrested persons. Some of the men in the room were her
former pupils
who had dropped out of school and they taunted her by
saying that even though she was educated, she was now locked up
together
with them. After about two hours, she and the other woman
called for help as they needed to relieve themselves, and a female
police
officer responded. This officer expressed concern that the two
women had been put in the same room as the men. She unlocked their
handcuffs and transferred them to another smaller room, which had a
cement floor and was cold, and in which was a small toilet
and a thin
mattress covered with a blanket. The windows of the room were set
high up and had burglar guards on them. The door of
this room was
also locked. The plaintiff was in telephonic communication with a
number of people, including Majeke, who informed
her that he had
given her driving licence to Fillis.
[5] Some time after 12h00 she was
taken to yet another room where Fillis was seated. He did not explain
her rights to her but merely
asked her to confirm her identity and
told her that her driving licence had arrived, that she was to be
released, and that she
was to pay R300.00. She did not have any money
but when she was released she met Mpuku who told her that he had paid
the R300.00,
having been informed at the police station that this was
the amount required. She had not instructed Mpuku to pay this amount,
and she was not aware that payment was an admission of guilt. She
thought the money had to be paid in order for her to be released.
[6] The incident affected her to the
extent that she was unable to go to work for a few days. The
publicity was an additional hurt.
Schoolchildren, who knew her as a
strict teacher, were aware that she had been arrested. People who had
witnessed her arrest and
others who had heard about it, questioned
her, and she had to explain what had happened. She felt she had been
regarded as a criminal.
[7] Majeke testified and corroborated
the plaintiff’s evidence that after she had contacted him, he
found her at the roadblock,
in the official vehicle, and thereafter
collected her driving licence at Mthatha and returned to the
roadblock. There he found
the plaintiff handcuffed to a man. He gave
the plaintiff’s driving licence to Fillis, and told Fillis to
whom the licence
belonged. He knew it was Fillis because Mpuku had
pointed Fillis out as the person in control at the roadblock, and
Fillis had
a name tag on, which bore his name. Majeke did not notice
what Fillis did with the licence. He then left for his school.
[8] Mpuku testified that he was a
passenger in a taxi which was also stopped at the roadblock. He saw
the plaintiff in the official
vehicle and on enquiring from one of
the traffic officers at the scene, was told she had been arrested
because she did not have
her driving licence. Fillis was admonishing
the plaintiff for trying to escape and the plaintiff was telling
Fillis that she wanted
to make a telephone call. Fillis then
handcuffed her to a young man, who was a taxi driver. Mpuku enquired
from the traffic officers
if it was proper to handcuff a woman to a
man and was told by one of them that the plaintiff was arrogant, and
that he was disturbing
him from performing his duties. Majeke then
arrived and the arrangement was made for him to fetch the plaintiff’s
driving
licence. When Majeke returned, he handed the plaintiff’s
driving licence to Fillis, and left for school. Mpuku then enquired
from one of the traffic officers what the next step was because the
plaintiff’s driving licence had arrived. He was informed
that
all those who had been arrested were to be taken to the police
station where paperwork was to be completed, and those who
produced
driving licences would have to pay R750.00. Mpuku then took the
plaintiff’s vehicle keys, but Fillis told him if
he was going
to drive the plaintiff’s vehicle, he would first have to
perform a breathalyser test on him. Fillis did not
however perform
this test. The SAPS minibus then arrived and the arrested persons,
including the plaintiff, boarded two by two.
Mpuku was not in a
position to see if they were handcuffed. Once the roadblock was
concluded, Mpuku drew R750.00 from a bank ATM
and proceeded to
Ngqeleni police station. There he was informed by a traffic officer
that all those arrested were going to be charged.
He and others were
called into the charge office and told that anyone who had money
could pay for the arrested persons. Names were
called, and when the
plaintiff’s name was called he was prepared to pay R750.00 but
was told that the amount was R300.00.
He paid R300.00 and a receipt
was issued to him, which he gave to the plaintiff when she was
released. The incident was the “talk
of the town” in
relation to all those who had been arrested, but the plaintiff had
been singled out because she was a teacher
who was well known.
[9] Fillis, a fellow traffic officer,
William Tessling, and Constable Lubuzo of the SAPS, testified on
behalf of the defendant.
[10] Fillis indeed stopped the
plaintiff and demanded her driving licence. When she was unable to
produce it or any form of identity,
he informed her that it was an
offence to drive without a driving licence and that she would be
detained until the licence was
produced. He also informed her of the
fines for the main and alternative charges. He requested her to
telephone someone to bring
her licence to the scene of the roadblock.
At this stage about ten persons had been arrested, some for not being
in possession
of a driving licence. These persons were handcuffed
because there was no police vehicle immediately available and he was
afraid
that they would vanish into the crowd which had gathered.
There was a shortage of handcuffs so they were handcuffed in pairs.
Fillis
initially placed the plaintiff in the official vehicle but
because she had on three occasions alighted from the vehicle, he
decided
that the only way to secure her presence at the scene was to
handcuff her. He thought that she too might vanish into the crowd.
In
its plea the defendant alleged that the plaintiff was handcuffed
because she was trying to escape, but Fillis denied that she
had
tried to escape. When the SAPS vehicle arrived, the plaintiff and the
other arrested persons had their handcuffs removed and
then boarded
the vehicle and left for the police station. Up to this point, he was
not aware that the plaintiff’s driving
licence or other
documentation had been brought to the scene. He continued to perform
duties at the roadblock, and then proceeded
to the police station.
There he found the arrested persons in a room which he presumed was a
consultation room, and which was not
a cell. It had a burglar gate
which was not locked. He was concerned to see the plaintiff and
another woman in the same room as
men and requested a police official
to move them to another room. They were moved to a smaller room,
which also had a burglar gate
which was not locked. He then
registered a case against the plaintiff. On the first information of
crime document he gave instructions
that she could pay a fine of R1
500.00 if no driving licence was produced, and a fine of R300.00 if
her driving licence was produced.
If the plaintiff had not been able
to pay the fine, she would have appeared in court the next morning.
He called the plaintiff
to a room and explained her constitutional
rights to her, and she signed the relevant document. At this stage he
had still not
seen her driving licence. The next day he learned that
she had paid a fine of R300.00 and he was satisfied that the case was
finalised.
[11] When asked during
cross-examination what his purpose was in arresting the plaintiff,
Fillis answered that it was to “educate”
her. He had
learned three steps at college, in the following order: the first was
to educate a person in the rules of the road;
the second was to fine
or summons a person; and the third was to arrest. When reminded that
the purpose of an arrest is to ensure
a person’s attendance at
court, he said he wanted to correct his earlier evidence, and agreed
that this was so. However he
did not agree that it was unlawful to
arrest a person for the purpose of education, and said that education
was part of his purpose
in arresting the plaintiff. He is aware of
other methods of bringing a person before court, namely summons and
written notice,
but if a person who cannot produce a driving licence
has no form of identity, it is his practice to arrest that person.
Driving
without a licence is a serious offence and prevalent in the
Nqeleni district. When specifically asked on what legal basis he was
entitled to arrest the plaintiff, he said he would have to look
through the Criminal Procedure Act
1
(CPA), and when asked again by the
court, referred to the offence of driving a motor vehicle without a
licence. With specific reference
to arrest without a warrant, he
referred to the CPA and the National Road Traffic Act
2
,
but did not specify any sections of those Acts, or describe them in
his own words.
[12] Tessling was also on duty at the
roadblock. He testified that he heard Fillis reprimanding the
plaintiff and telling her to
get back into the official vehicle, and
that Fillis had handcuffed her because she was not willing to remain
in the vehicle. Fillis
said to him that it looked as though the
plaintiff wanted to run away. The handcuffs of the arrested persons
were removed before
they boarded the SAPS vehicle. He said that the
two rooms in which the plaintiff had been placed at the police
station were not
cells, were not locked, and were “more like
offices”. According to him, in this type of situation
(presumably when
a person cannot produce his or her driving licence
at a roadblock), arrest is a last resort. Arrested persons are taken
to a police
station and it is hoped that they will be released the
same day. In response to a question by the court, he conceded that if
such
persons tried to leave the police station before the necessary
documentation arrived, he would prevent them from doing so.
[13] Constable Lubuzo was on duty at
Ngqeleni police station when the arrested persons arrived. She also
said they were not handcuffed.
Because they had all arrived together,
they were all initially placed in what she described as a waiting
room, but when Fillis
arrived he instructed her to move the plaintiff
and another woman to another waiting room. She conceded that persons
kept in these
waiting rooms are in custody. The arrested persons were
charged by the traffic officers and some of them paid admission of
guilt
fines. Through Lubuzo, the receipt for the plaintiff’s
payment of R300.00 was handed in. This receipt reflected that the
money was paid in terms of s 57 of the CPA.
[14] It will be seen from this summary
of the evidence that the main events and their sequence were common
cause. The main disputes
of fact concerned the production or
otherwise of the plaintiff’s identity document and student card
to Fillis, the delivery
of the plaintiff’s driving licence at
the roadblock, and the length of time for which she was handcuffed.
[15] The plaintiff, Majeke and Mpuku
were all impressive witnesses. They testified in a calm and dignified
manner. None of them
exaggerated any detail of the events nor did
they display any bias towards Fillis. The plaintiff in fact said that
she knew that
he was doing his duty. There was no sign of collusion
between them in order to strengthen the plaintiff’s case. For
example:
when the plaintiff saw Majeke talking to Fillis, she did not
say that she saw her licence being handed to Fillis; Majeke did not
say that he saw the plaintiff boarding the SAPS vehicle in handcuffs;
Mpuku could not say if the plaintiff was handcuffed when
she boarded
the police vehicle because he was not in a position to see. Their
evidence dovetailed in a logical sequence. It is
correct that some
details of their evidence were not put to Fillis: for example that
the plaintiff had shown him her identity document
and her student
card, and that her driving licence had been handed to Fillis
personally at the roadblock. The plaintiff explained
that in her
instructions to her attorneys she was mainly concerned with the
affront to her dignity and the fact that Fillis would
not listen or
consider a better way of dealing with the situation than exposing her
in public. It was also put to Fillis that Mpuku
would testify that
the plaintiff’s driving licence had been handed to the police.
3
These omissions were in my view
adequately explained, especially in the light of the totality of the
evidence.
[16] Fillis was not an impressive
witness. He appeared to be trying to play down the whole incident.
The professed need to handcuff
the arrested drivers because they
might vanish into the crowd, was improbable and illogical, in view of
the fact that their vehicles
were still on the scene. His evidence
that the plaintiff had not tried to escape, contradicted the
defendant’s plea, which
must have been drawn on his
instructions. His description of the room in which the plaintiff was
initially held, as a consultation
room, was a transparent attempt to
show she was not in detention. Clearly all the arrested persons in
this room were in custody.
He also changed his evidence when it was
put to him that the purpose of an arrest is to ensure a person’s
attendance at court:
only then did he say that he wanted to correct
his previous evidence and add that this was part of his purpose.
[17] Tessling similarly tried to play
down the arrest by describing the rooms in which the plaintiff was
held as offices, and saying
that they were not locked. Lubozo seemed
to do the same by referring to the rooms as waiting rooms. Both of
them had to be specifically
asked before they conceded that the
arrested persons were in custody.
[18] Overall therefore, where there
was a dispute of fact, the evidence on behalf of the plaintiff was to
be preferred to that on
behalf of the defendant.
[19] In any event, I am of the view
that the resolution of these disputes of fact was not material to a
decision on the wrongfulness
or otherwise of the arrest. What was
material, was Fillis’ purpose in arresting the plaintiff, and
the subsequent events
at the police station.
[20] In
Minister
of Safety and Security v Sekhoto
4
,
Harms DP, in analysing s 40 (1) (b) of the CPA, said at paragraph
[19]:
“
The
methods of securing the attendance of an accused in court for the
purposes of trial are arrest, summons, written notice and
indictment
in accordance with the relevant provisions of the Act (s 38). The
word ‘arrest’, which translates into Afrikaans
as ‘in
hegtenis neem’, has in this and related contexts always
required an intention to bring the arrested person to
justice.”
Further, at paragraph [31], in dealing
with arrests for a purpose not contemplated by the legislator, he
said:
“
The
law in this regard has always been clear. Such an arrest is not bona
fide but
in
fraudem legis
because the arrestor has used a power for an ulterior purpose.”
[21] Fillis’ purpose, on his own
evidence, was not to bring the plaintiff to justice, but to “educate”
her. Put
more colloquially, he arrested her (and probably all the
other persons who were arrested) to “teach her a lesson”.
Bringing the plaintiff to justice was the last thing on his mind. S
40 (1) (a) of the CPA authorises a peace officer to arrest a
person
without a warrant if such person commits or attempts to commit an
offence in his presence. The plaintiff did commit an offence
in
Fillis’ presence, in that she did not carry her driving licence
in her vehicle. Fillis did open a police case with a reference
number, and said that the plaintiff would have had to appear in court
if she had not paid an admission of guilt fine. However Fillis’
professed purpose in arresting the plaintiff, namely to educate her,
and the subsequent events at the police station, showed in
my view
that the overall exercise, from the arrest of the plaintiff to her
release, was an abuse and a distortion of, and utter
non-compliance
with, correct criminal procedure. Fillis’ evidence that part of
his purpose was to ensure the plaintiff’s
attendance at court
was clearly an afterthought. This conclusion is strengthened by his
ignorance of the provisions of the CPA,
and his insistence that
arrest for the purpose of education was not wrongful. It is also
strengthened by Tessling’s evidence
that in these situations it
was hoped that arrested persons would be released the same day.
[22] Events at the police station
reinforced the illegal purpose of the arrest of the plaintiff. I have
mentioned that the admission
of guilt fine of R300.00 was receipted
as a payment in terms of s 57 of the CPA. S 57 provides for payment
of an admission of guilt
when a person has been issued with a summons
(s 54 of the CPA) or given a written notice to appear in court (s 56
of the CPA).
Presumably a written notice to appear in court was
issued in respect of the plaintiff. S 56 (2) of the CPA provides that
the effect
of a written notice handed to a person in custody is that
the person must forthwith be released from custody. A person who is
issued
with a written notice to appear in court has a choice of
appearing in court or paying an admission of guilt fine. The
plaintiff
was neither released nor allowed to exercise such choice.
5
She had to remain in custody until the
fine was paid. She did not choose to pay the fine. Mpuku was told
that it would have to be
paid in order for her to be released. Such
procedure was a complete abuse of s 56 of the CPA. The plaintiff’s
release effectively
had to be bought for a non-negotiable sum. The
plaintiff’s belief that the money was paid in order to secure
her release
was correct.
[23] Mpuku’s evidence showed
that even if a person’s driving licence was eventually brought
to the roadblock, as was
the case with the plaintiff, the traffic
officers were none the less determined to arrest alleged perpetrators
and take them to
the police station. There was therefore no exercise
whatsoever of a discretion to arrest. Such absence of discretion
further underscores
the illegal purpose of the plaintiff’s
arrest.
[24] The treatment of the plaintiff,
from arrest to release, was therefore completely illegal and the
defendant failed to establish,
as it bore the onus to do, that the
arrest and detention of the plaintiff was justified. The plaintiff
must therefore succeed in
her action.
Damages.
[25] The wrongful deprivation of
liberty is in itself a very serious injury. The experience of being
handcuffed in public must have
been extremely degrading and
humiliating, particularly when amongst the crowd of onlookers were
former pupils of the plaintiff,
some of whom were apparently enjoying
her ordeal. At the police station she was in a cell with males, some
of whom mocked her because
her status as a teacher had been
diminished. The gender issue is of relevance in that she could not
relieve herself in that cell
and had to call for help. The second
cell in which she was placed with the other woman was cold and
sparsely equipped. The plaintiff’s
hurt endured for some time
after the incident and it was apparent from the manner in which she
testified that the experience has
been a major event in her life. The
defendant denied liability to the bitter end, and Fillis would not
concede that her experience
was degrading. It was submitted that
Fillis acted with malice, but I do not think that the evidence
justifies such a finding. He
acted in a high handed manner, but with
ignorance.
[26] I have had regard to recent
awards in actions for wrongful arrest and detention, none of which is
on all fours with the present
case, but which give context in which
to consider an appropriate award.
6
In all the circumstances, I consider
an award of R75 000.00 to be appropriate.
[27] The plaintiff claimed damages of
R200 000.00. The award of R75 000.00 falls within the monetary
jurisdiction of the Magistrate’s
Court, namely
R100 000.00 I raised with both counsel
the question of the scale of costs to be allowed should an award be
made which fell within
the jurisdiction of the Magistrate’s
Court. The plaintiff’s counsel submitted costs should be
awarded on the High Court
scale, whereas the defendant’s
counsel submitted they should be awarded on the Magistrate’s
Court scale. Neither counsel
mentioned any factors which supported
their submissions. I am of the view that costs should only be allowed
on the appropriate
Magistrate’s Court scale. Although there is
always some degree of uncertainty about what sum will eventually be
awarded in
claims such as these, there are enough recent decisions
involving similar claims which demonstrate that it was unlikely an
award
of over R100 000.00 would be made. The action did not involve
complex issues of fact or law, and actions such as these are often
heard in the magistrate’s courts. The plaintiff said that she
brought the action because her dignity was impaired, and that
an
award of damages would comfort her and attend to her “inward
cry”. An action in the magistrate’s court would
have met
her needs.
[28] I would hope that the defendant
takes heed of this judgment and ensures that its officials have the
necessary knowledge of
correct criminal procedure before embarking on
similar exercises in the future. Roadblocks serve an important
purpose and driving
without a licence is a serious offence, but a
peace officer’s extensive powers cannot be used merely for the
purpose of teaching
a person a lesson, in other words subjecting a
person to an illegal and shocking experience so that they will not
transgress again.
Order
[29] The following order is made:
29.1 There will be judgment for the
plaintiff in the sum of R75 000.00, with interest thereon at the
prescribed rate from 14 days
from the date of judgment to the date of
payment.
29.2 That the defendant pay the
plaintiff’s taxed party and party costs of suit on the
appropriate Magistrate’s Court
tariff and scale, together with
interest thereon at the prescribed rate from 14 days of the date of
taxation to date of payment.
______________
J.M.
ROBERSON
JUDGE
OF THE HIGH COURT
Appearances:
For
the Plaintiff: Adv Kubuleki, instructed by Mantyi Attorneys, Mthatha
For
the Defendant: Adv Gaju, instructed by The State Attorney, C/O
T.Mnqandi & Associates, Mthatha
1
51
of 1977
2
93
of 1996
3
Plaintiff’s
counsel later informed the court that he had meant to put to Fillis
that Majeke had handed over the licence.
4
[2010]
ZASCA 141
5
She
could have chosen to appear in court and ask for a lesser fine, or
she could have made representations to the prosecuting
authority for
a reduction of the fine.
6
Olgar
v Minister of Safety and Security
[2008] JDR 1582 (E),
Peterson
v Minister of Safety and Security
[2009] ZAECGHC 65,
Fubesi v
Minister of Safety and Security
[2010] ZAECGHC 91