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[2009] ZAGPPHC 358
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Masanabo v Minister Of Safety And Security (11909/04) [2009] ZAGPPHC 358 (8 December 2009)

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Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
(TRANSVAAL
PROVINCIAL DIVISION)
CASE
NO: 11909/04
DATE:
8 DECEMBER 2009
NOT
REPORTABLE
In
the matter between
A
M
MASANABO                                                                                                           Plaintiff
and
MINISTER
OF SAFETY AND
SECURITY                                                                 Defendant
JUDGEMENT
1
The
plaintiff sued the defendant out of this division in an action based
on the following facts, as pleaded:
1
.
1
that on 10 November 2002 the plaintiff was arrested by two uniformed
members of the SAPS at Pretoria;
1.2
that the arrest was effected without a
warrant.
1.3
that the plaintiff was detained at
Pretoria by members of the SAPS from Saturday afternoon 10 November
2002 until Sunday afternoon
11 November 2002;
1
.
4
that in effecting the arrest, the members of the SAPS acted
maliciously and/or wrongfully and/or unlawfully,
1
.
5
that the plaintiff suffered damages in the sum of R170 262.50 made up
as follows
1.5.1
general damages in the sum of R120
000.00;
1.5.2
estimated damages for loss of earnings as a taxi driver in the sum of
R262.50:
1.5
.
3
damages for contumelia in the sum of R50 000.00
2
2
.
1
To this suit, the defendant filed a plea and a special plea, the
latter of which pertained to the non-compliance with section

3(2)(a)of Act 40 of 2002. At the hearing. Mr Motepe
abandoned
the special plea and therefore no more shall be said about it
2
.
2
The plea filed by the defendant contains an admission regarding the
arrest but the defendant pleaded that the plaintiff was arrested
on a
“reasonable suspicion that he was in possession of a stolen
motor vehicle and consequently [was] a suspect”
2.3
All further contumelia and damages are
denied
3
3.1
At the heanng. Mr Geach acting on behalf
of the plaintiff, moved for an amendment of par 9.2 of the
particulars of claim to ado
the following:
“
....plus
R500 for the loss of the hire of the bakkie."
Thus
the total amount of damages claimed is the sum of R170 762.50.
3
.
2
No objection was made to the amendment and it was granted and the
pleadings thus accordingly amended.
4
As
both merits and quantum are in dispute. I was handed a document
markeo Exhibit C, which sets out facts that are common cause
and
facts that are in dispute This document reads as follows:
'FACTS
THAT ARE COMMON CAUSE
1.
The identity of the parties.
2.
That the Plaintiff was arrested
and detained on 10 November 2002 and thereafter released.
3.
Vicarious liability of the
Defendant.
4.
The arrest was without a warrant.
FACTS
THA T ARE IN DISPUTE
1.
That Plaintiff was unlawfully,
maliciously arrested and detained.
2
.
That
Plaintiff suffered any damages
3.
That Plaintiff was a taxi driver
4.
That Plaintiff gave full and
adequate particulars of the owner
5.
That the members of the SAPS
ignored the owner of the vehicle
6
That members of the SAPS initially agreed to accompany the Plaintiff
to tire owner but for no apparent reason subsequently changed
their
minds.
7.
That Plaintiff was kept without toilet facilities and bedding.’
It
bears mentioning that Mr Geach abandoned the malicious arrest part of
the case during his closing argument.
5
The
following persons testified
5.1
the Plaintiff himself.
5
.
2
Mr Ntuh on behalf of Plaintiff being the owner of the vehicle in
question;
5
.
3
Insp Jenny Lee Kemp for Defendant.
5
.
4
Insp Leonie Grobler for Defendant;
5
.
5
Insp Nqoko for Defendant;
6
THE
PLAINTIFF
6.1
The plaintiff testified that he is […..]
years old and that he had parked his uncles bakkie. a brown Ford
Cortina at a garage
in Club View and was resting (actually sleeping)
in the bakkie. He was awoken to knocking at the window of the bakkie
and saw that
there were uniformed police officers with a Flying Squad
car. They asked him to get out of his vehicle and there was a white
lady
who kept shouting here is the car. “
It
is my father's car”
He had
never seen this lady prior to that night. She kept telling the
officers that it was a colour of the vehicle belonging to
her father.
6.2
The police asked him to open the bonnet of the vehicle and they
inspected it whilst talking on their radio and then they told
the
plaintiff that they were taking him to the Wierdabrug Police Station
where they arrived at approximately 23h00.
6
.
3
The woman who accused plaintiff of being in possession of her
father's vehicle said that she was cold and asked if she could fetch

something to wear and she left and returned with a jacket.
6
.
4
All the time the plaintiff kept telling the police officers that the
owner of the vehicle was available and could be reached They
asked
him whether he knew where the owner lived and he told them who the
owner was and where he lived. Although they would take
him to find
the owner this in fact never transpired and the plaintiff was
informed that he would be charged for being in possession
of a
suspected stolen vehicle Although the plaintiff informed them who the
owner was and that he would take them to the owner he
was ignored and
he testified that he was read his nights. removed of his possession
and locked m a cell which consisted of a wall
with bars He described
it as "more of a cage than a room'. There was a 2litre contained
with urine in it and it stank, there
was no toilet and no bedding.
6
.
5
Although the plaintiff asked for something to put on as it was cold,
they didn't. Although he was told they would give him a blanket
they
didn't do that either After the change of shifts, he was taken to a
cell and shown a bed and blankets and toilet facilities
He was
brought tea and bread eventually given the opportunity to make a
telephone call and he telephoned someone to fetch his Uncle
Ntuli. In
the early morning he was taken to the charge office where he found
his uncle Ntuli who had brought the ownership documents
of the
vehicle to show the police as the plaintiff had requested him to
Although Mr Ntuli showed the policemen the documents and
asked the
police to release the plaintiff, the plaintiff testified that they
took him back to his cell He was called again at approximately
09h00
on the Sunday being the day after his arrest
6.6
It then transpired that although there
were further enquired made to the plaintiff by other SAPS officers,
he was still not released
and he was seen by other people who usually
use his taxi services
6
.
7
Eventually the plaintiff was released at approximately t6h00 He was
informed that the bakkie had been inspected and nothing untoward

found and he could return the following day to fetch the bakkie The
bakkie was eventually returned to the plaintiff two days later.
6
.
8
No criminal charges were ever pressed and nothing came of the matter.
7
7
.
1
The plaintiff further testified that he is a taxi driver and head of
the Marshalls at his taxi
rank.
He is a deputy chairperson of the disciplinary section of the
Tshwane/Marabastad Taxi Association He was incarcerated with
2 other
people he knew; whilst he was in custody he was seen by the Chairman
of his Association and by Mr Ntuli.
7
.
2
He stated that he felt emotionally abused and he felt very bad as he
is the person who
usually
keeps discipline at the rank and he wondered now people would now
regard him also because he wore his ZCC badge. He was
concerned how
this would affect him at work and at Chruch.
7.3
After his release he was subjected to
people's questions about his arrest and he was
made
to feel bad What compounded matters is that his accuser at the police
station was allowed to get herself something warm to
wear but he was
not afforded the same courtesy He stated that he felt
"humiliated
and insulted"
8
8
.
1
Insofar as his income is concerned he makes his living transporting
people and goods
8.2
Regarding the bakkie he testified that
he had borrowed it to remove a Zozo house from Knoppteslaagte to
Olievenhoutbos and he would
receive R500 for doing this He would have
dome this the Saturday and still gone back to his taxi business after
he'd completed
the job However, because of his arrest, he was unable
to do this job He also lost out on his usual taxi work as he was
unable to
go back to work on the Sunday after his release
8
.
3
The plaintiff testified that on a Sunday he does approximately 5
trips and earns R3-50 per passenger. This means that there would
have
been approximately 75 passengers in total.
9
9
.
1
Cross examination did not take the plaintiffs case much further, nor
did it make any dent in the plaintiff s credibility as a
witness.
9
.
2
It was put to him that Insp Kemp would testify that the plaintiff was
arrested at
approximately
3.30a and that he was released at approximately 13h00 the following
day. but the plaintiff denied this.
9.3
The fact that the plaintiff could not
give Mr Ntuli s exact physical address but knew it from sight is
neither here nor there as
the point is that he was never taken there
and Mr Ntuli in any event did produce the vehicle's documents when
plaintiff asked him
to do so.
9
.4
One aspect that the cross did clear up
is that the plaintiff would have expended approximately R100 - R150
petrol in his transport
of the Zozo hut and his profit would thus be
between R350 – R400.
10
The
next witness for the plaintiff was Mr Johannes Ntuli who testified
that:
10
.
1
he is the plaintiff s uncle and the owner of a Ford Cortina bakkie
which he had lent to the plaintiff.
10.2
He heard of the plaintiffs arrest from
his friend on the Sunday and he went to the police station at
approximately 09h00 and took
his proof of ownership papers with him
to the Wierda Brug Station.
10.3
He left the police station at
approximately 13h00 and only got his bakkie back a few days later.
11
Cross
examination showed that Mr Ntuli went to fetch the plaintiff after
his release, in the afternoon and the plaintiff dosed his
case.
12
The
defendant's first witness was Insp Jenny Lee Kemp who was the
arresting officer at the time She testified that:
12.1
she was at tne Wierdabrug Police Station when a lady arrived and said
that during
approximately
1999 or 200 her Ford Cortina had been stolen and while she was
driving that night, she had seen it parked at a Shell
Garage. She
said there were certain identifying marks on the vehicle such as the
switches her father had installed, a towbar a
bump on the vehicle and
the doorhandle that opened and closed in a strange way.
12.2
Insp Kemp also testified that the vehicle was stated to have an
automatic transmission but the bakkie was manual.
12.3
She stated that she woke the plaintiff up as he was sleeping in the
vehicle and he explained that the vehicle belonged to a
friend of his
and he was asked to accompany them to the station. Mrs Viljoen (the
complainant) was also asked to point out the
identifying marks on the
vehicle at that time.
12.4
They arrived at the station at approximately 01h00. The plaintiff was
with them when
they
investigated the vehicle and he could not give us the address of the
bakkies owner so he was read his rights at approximately
03h30 and
was put in a holding cell and when the paperwork was completed an
hour later he was taken to the proper cells. Her shift
ended at 07h00
but she left Wierdabrug at about 05h00 and has no idea what happened
to the plaintiff after she signed the occurrence
book and handed the
plaintiff over.
12.5
Insp Kemp admitted that there were certain discrepancies between the
vehicle stolen and the vehicle in the plaintiff s possession.
She
also stated that although the plaintiff told her who the owner of the
vehicle was he could not give her an address or telephone
number of
the owner and she dented that the plaintiff told her he could take
her to the owners house. She admitted that her mam
suspicions were
based upon Mrs Viljoen s report.
12.6
During cross examination much was made by Mr Geach of times that
appeared on the documents contained in Bundle D and the time
of
arrest and the time of release. This is relevant to the issue of how
many hours the plaintiff spent in detention and I will
return to this
issue later under the discussion of quantum.
13
The
next witness was Insp Leonie Grower. Unfortunately, Insp Grobler had
undergone a brain operation which has affected her long
term memory
and she had independent recollection of the facts and could only
testify as to what she saw in the bundles before court
and the
procedures she usually follows when an arrest is made.
14
Insp
Nqoko was the last witness to testify for defendant. He is an
Inspector with the Vehicle Theft Unit and he was called in to
do the
inspection on the Ford Cortina. He testified that he had found that
the vehicle had not been interfered with and he signed
the statement
found at D12.
15
AD
MERITS
From
the outset I must state that I found all the witnesses to be credible
and I must also state that in my opinion, this matter
does not tum on
credibility, but on the objective facts of this matter. What is dear
is that the arresting officers did not have
a warrant. That being so
the arrest must then be done In terms of the provisions of s40 of the
Criminal Procedure Act.
16
It
is also so that the onus of proving that the arrest and detention are
not unlawful or wrongful rests on the defendant, (see
Union
Government v Bolstridge
1929 AD 240
Brand v Minister of
Justice
1959 (4) SA 712
(A) at 714,
Bentlev and another
v McPherson
1999 (3) SA 854
(E) AT 857)
17
17.1
During his argument, Mr Geach stated that:
17.1.1
the plaintiff and his uncle corroborated each other in ail material
respects;
17.1.2
the documents contained in Bundle D are contradictory and cannot be
relied upon; 17.1.3 the police's version is improbable
in material
respects
17.2
He submitted that even on the defendant's version, the plaintiff was
arrested merely
upon
the say-so of the complainant and no rudimentary enquiries were made.
Instead of impounding the bakkie and letting the plaintiff
go he was
arrested and even when the owner arrived with proof of ownership, he
was ignored.
17
.
3
He submitted that, as stated in Louw v Minister of Safety &
Security
2006 (2) SACR 178
(T) arrest should be the last resort and
he stated that there was no doubt that the arrest and subsequent
detention were unlawful
18
Mr
Motepe on behalf of the defendant, submitted that on the facts, the
plaintiff was asleep at a garage at 01h00, the complainant
had
pointed out certain identifying marks on the vehicle, and that Insp
Kemp had not immediately arrested the plaintiff but that
she was
brought under the impression that the vehicle was stolen. As I
understand his submissions he states that the police at
all times
acted reasonably in terms of the Act.
19
I
cannot agree with Mr Motepe s submissions. At the very least, if the
police were under the impression that the vehicle v/as stolen
then
they could have impounded the vehicle. Where it is clear that the
plaintiff offered a reasonable explanation for his whereabouts,

tendered to take them to the owner and where the owner indeed arrived
the following day to show proof of ownership, objectively
speaking
there could be absolutely no reason to have either arrested or held
the plaintiff. In my opinion, and perhaps whilst having
the best of
intentions the police acted hastily in arresting the plaintiff and I
thus find in favour of the plaintiff on the merits.
20
AD
QUANTUM
It
is clear that the plaintiff is entitled to damages the question being
the quantum thereof. Mr Geach submitted that an amount
of R80 000.00
is reasonable bearing in mind that:
20
.
1
the plaintiff was in custody from approximately 03h30 on the evening
of his arrest until approximately 16h00 the following day;
20.2
the plamtrff was held under unpleasant
circumstances ;n the holding cell before being transferred to the
cells proper at about 07h00
when the shift changed and was not
offered a blanket or warm clothing despite his requests and despite
the fact that the complainant
was allowed to fetch warmer clothing
because she was cold.
20.
3
the police were
"extremely
unsympathetic with the plaintiff and Mr Ntuli and unduly brusque”
20.4
the plaintiff is a man of some standing
in his community and his incarceration received wide publicity.
20.5
he suffered a loss of earnings and an
amount of R662.50 would be appropriate:
20
.
5.1
R500 00 in respect of the |Ob lost for transporting the Zozo from
which an
amount
of R100 should be deducted for transport leaving an amount of R400.00
20.5.2
the amount of R262.50 for the 5 trips of passengers he lost out on
calculated at 75 passengers x R3-50 per person
20.6
an amount of R50 000.00 in respect of
contumelia.
21
Mr
Motepe submitted that:
21
.
1
the amount claimed for damages is excessive when regard is had to the
present
authorities
and the time spent in detention which was at maximum a period of 12
hours;
21.2
insofar as the loss of earning is
concerned, the plaintiff was released at 13h00 on the
Sunday
and at most had he gone back to work after his release, he would have
forfeited 1 load of passengers.
21.3
the amount of R400.00 is reasonable for
the loss of the income from the transport of the Zozo;
21.4
an amount of R50 000, 00 for damages,
Including contumelia is warranted as the plaintiff was in custody for
no more than 12 hours,
he was treated well after he was moved to the
cells proper.
22
Before
I move on to the issue of the determination of quantum there is one
aspect which bears mentioning here and that is the one
outlined in
paragraph 17.1.2 supra. I agree with Mr Geach that the documents
contained in Bundle B are somewhat contradictory and
that as a result
they are rather unreliable. Just one such example is the time of the
Plaintiffs release which the police record
puts at approximately
13h00 and the evidence of the Plaintiff and his unde put at 16h00
Although this issue is not germane to the
issue of the merits. it ts
germane to the issue of quantum and will be treated accordingly.
23
Each
case must be regarded on its own merits and at best, the authorities
give us no more than a general guideline as to damages
in matters of
this nature To give but a few examples
23.1
In the matter of
Louw and another
v Minister of Safety and Security and others
1
Berllesmann J awarded the
Plaintiff an amount of R75 000.00 in damages after the plaintiffs
were incarcerated for approximately
20 hours in circumstances which
were humiliating, an invasion of their dignity and emotionally
damaging.
23.2
In
Serla
v Minister of Safety and Security and others
2
an amount of R50 000.00 was awarded after the Plaintiff was arrested
and detained in terms of a warrant issued in terms of the
Domestic
Violence Act
3
for some 20 hours.
23
.
3
In
Bentley and another v
McPherson
4
the Plaintiff was awarded R15 000,00 after
spending
some 9 % hours in detention
24
Insofar
as quantum is concerned I therefore come to the following conclusion
24
.
1
as to loss of earnings:
24.1
.
1
I disagree with Mr Motepe's submissions stated m paragraph 21.1 supra
and find in favour of the Plaintiff in this regard.
24.1.2
I take note of the concession made by Mr Motepe as contained in
paragraph 21.3.
24
.
1.3
I therefore find that the amount to be awarded to the Plaintiff in
respect of his loss of earnings is the amount of R662,50.
24
.
2
I find that the Plaintiff was incarcerated for a period of 17
½
hours and the appropriate
amount
of damages to award including those in respect for
conlumelia
,
is the amount of R70 000.00.
25
COSTS
24.1
Mr Geach submitted that the plaintiff is
entitled to costs on a High Court scale as it was proper for this
matter to have been brought
in this court. He therefore asks for an
order that the defendant be ordered to pay the plaintiffs costs of
suit on the High Court
scale.
25
.
2
Mr Motepe submitted that the plaintiff could never have thought that
his damages could
reasonably
amount to R100 000.00 or more in light of the relevant authorities.
He submitted that this court has a discretion as
regards the issue of
costs as well as the scale on which costs may be granted, but that
the discretion must be exercised judicially.
25.3
I agree with Mr Motepe. In light of the
facts of this matter, it could not be reasonably contemplated that
the amount of damages
to which the plaintiff would be entitled would
exceed the sum of R100 000,00 and this matter is not so unduly
weighty that it warrants,
on its facts or the law the attention of a
High Court which would justify the scale of the award to be those of
the High Court.
26
THE
ORDER
I
therefore make the following order:
1.
The plaintiff succeeds on the merits.
2.
The plaintiff is awarded the sum of R 70
000 00 damages, including contumelia.
3.
The plaintiff is awarded the amount of R662 50 for loss of income.
4.
The defendant is ordered to pay the
costs of the action on a party and party scale which costs are
awarded on the Magistrate s Court
scale.
B
NEUKIRCHER (AJ)
1
2006 (2) SACR 178
(T)
2
2005 (5) SA 130
(C)
3
No 166 of 1998
4
(1999) 2 All SA 89
(EC)