Minister of Safety and Security v Moloi (A262/2005) [2008] ZAFSHC 11 (28 February 2008)

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[2008] ZAFSHC 11
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Minister of Safety and Security v Moloi (A262/2005) [2008] ZAFSHC 11 (28 February 2008)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Appeal
No. : A262/2005
In the
appeal between:-
MINISTER
OF SAFETY AND SECURITY
Appellant
and
KHALIPI
OBED MOLOI
Respondent
_____________________________________________________
CORAM:
EBRAHIM
J
et
VAN
DER MERWE J
_____________________________________________________
HEARD
ON:
4
FEBRUARY 2008
_____________________________________________________
JUDGMENT
BY:
VAN
DER MERWE J
_____________________________________________________
DELIVERED
ON:
28
FEBRUARY 2008
_____________________________________________________
[1] This
is an appeal against a judgment delivered in the magistrate’s court
of Phuthaditjhaba finding that the respondent had been
unlawfully
arrested and detained and against the subsequent award of damages in
the total sum of R100 000,00 with costs in favour
of the respondent.
[2] It is common cause
that during the morning of 23 October 2002 and at the Phuthaditjhaba
police station, the respondent was arrested
without a warrant by
inspector S.S. Becezi, acting in the exercise of and within the scope
of his employment with the appellant.
It also common cause that the
respondent was then detained till approximately 19h00 on 24 October
2002, when he was released on
bail. Consequently the respondent
claimed an amount of R50 000,00 for damages in respect of unlawful
arrest and a further R50 000,00
in respect of damages for unlawful
detention. As appears from the above, the magistrate allowed both
claims in full. It is unnecessary
to consider whether separate
claims in respect of unlawful arrest and detention in these
circumstances are proper or sustainable
as counsel for the appellant
fairly accepted for purposes of the appeal that the matter should be
regarded as if a single claim for
damages for unlawful arrest and
detention had been instituted.
[3] The
appellant sought to justify the admitted arrest without warrant and
detention of the respondent by reliance on the provisions
of section
40(1)(b) of the Criminal Procedure Act, No. 51 of 1977 (“the Act”).
This section provides that a peace officer such
as inspector Becezi,
may without warrant arrest any person whom he reasonably suspects of
having committed an offence referred to
in Schedule 1 of the Act,
other than the offence of escaping from lawful custody. The case for
the appellant is that inspector Becezi
on reasonable grounds
suspected respondent of having committed the offences of breaking or
entering into any premises with the intent
to commit an offence and
theft, both mentioned in Schedule 1 of the Act. In the result, the
onus rested on the appellant to show
that the arrest and detention
had been lawful. See
MINISTER
OF LAW AND ORDER AND OTHERS v HURLEY AND ANOTHER
1986 (3) SA 568
(A) at 589 E – G and
MINISTER
VAN WET EN ORDE v MATSHOBA
1990
(1) SA 280
(A) at 284 H – I.
[4] Only
the respondent and inspector Becezi testified at the trial.
[5] The
respondent testified that his late father divorced his mother and
remarried a person who also happened to be the respondent’s
aunt.
The respondent’s late father was the owner of the house in
question, that is where the respondent allegedly committed the
aforesaid crime or crimes. The respondent’s father left a will and
an attorney from Naudes attorneys in Bloemfontein had been
appointed
the executor of the estate of respondent’s father. By 23 October
2002 the estate had not yet been finalised. The respondent
further
testified that he received a letter from Naudes attorneys in
Bloemfontein pertaining to the estate of his father. The respondent
understood the letter as requiring him to look after the house in
question and therefore allowing him to enter into the house.
When
the respondent wished to introduce this letter into evidence, it was
objected to on the basis that the letter had not been discovered.

Thereupon the attorney for the respondent elected not to pursue the
introduction of the letter into evidence. However, the respondent
testified that he took the letter to his aunt, that is his late
father’s second wife, at per parental home, in other words not
at
the house in question, in order to inform her that the respondent was
supposed to go to the house and to look after it. His aunt
said that
she needed her own letter, meaning that a letter should be directed
to her by the executor. In this fashion his aunt refused
to adhere
to or give effect to the respondent’s request. As a result the
respondent went to the Phuthaditjhaba police station
for assistance.
There he was told that the police would not involve themselves in
affairs involving attorneys and that that was
not within the ambit of
their work. For some or other reason he was then referred to the
Child Protection Unit where in turn he
was referred to the chief
magistrate of Phuthaditjhaba. The respondent then went to a
magistrate at the Phuthaditjhaba magistrate’s
court and showed him
the letter. According to the respondent the magistrate then informed
him that in terms of the letter the respondent
is allowed to have
access to the house, to do anything that he wanted to do there and
that he could even change the locks of the
house. The respondent
then went to the house. He found it locked. He gained entry by
breaking a window of the toilet, took the
key to the kitchen door and
damaged the lock of the dining room door so that it would be
difficult for anybody else to gain entry
to the house. This took
place on the 21
st
October 2002. When the respondent returned to the house on the
following morning, he found his aunt there who then told him that
the
police had been looking for him as he was the one who broke into the
house. After a while a certain police officer by the name
of Mokoena
arrived. The respondent explained to Mokoena why he broke into the
house and also showed him the aforesaid letter from
the attorneys.
Mokoena then informed the respondent to meet with the investigating
officer. On the following morning, 23 October
2002, the respondent
did go to the Phuthaditjhaba police station where he met inspector
Becezi. He said that inspector Becezi never
listened to anything
that he was telling him. He said that he did show the aforesaid
letter to inspector Becezi but that he didn’t
want to look at it
and simply arrested the respondent. The respondent was then
detained. On the following morning, 24 October 2002,
he was taken to
court, granted bail and released on bail. Eventually, on 21 November
2002, the case against the respondent was withdrawn.
[6] Inspector Becezi
testified that he was the investigating officer in respect of a
police docket pertaining to the alleged housebreaking
and theft
committed on 21 October 2002. He testified that he went to the house
in question. Upon arrival he was told by a certain
male person that
he knew the person who had committed the housebreaking. This person
said that he managed to see the respondent
and also that the
respondent took some things. Inspector Becezi took a statement of
this witness. On the following day inspector
Becezi also saw the
complainant, that is the respondent’s aunt, at the police station.
She informed inspector Becezi where the
respondent resides.
Inspector Becezi took a statement of this witness as well. He then
visited the respondent’s place of residence
where he spoke to his
mother and informed her that the respondent should report at the
Phuthaditjhaba police station. On the following
morning he was
informed that there was a person looking for him at the police
station and he then met the respondent. He explained
to the
respondent the charges against him. According to inspector Becezi
the mother of the respondent then appeared and started
swearing
whereupon the respondent became uncooperative. Although he explained
the charges to the respondent, the respondent said
that he had
nothing to say. Thereupon he arrested the respondent.
[7] The
magistrate decided the matter on the basis that on inspector Becezi’s
own evidence, the suspicion that he entertained, was
not a reasonable
one. In this regard the magistrate firstly,
inter
alia
,
stated that it was required of inspector Becezi to first satisfy
himself through full investigation that an offence had been committed
before an arrest could be made. In this context the magistrate seems
to even have suggested that it was not permissible to rely
on a
witness statement and that the police officer must independently
verify the allegations. Secondly, the magistrate said that
inspector
Becezi should have allowed respondent to give an explanation, which
he failed to do. In my judgment, the magistrate erred
in both
respects. What is required by section 40(1)(b) of the Act, is a
suspicion
that an offence had been committed that objectively rests on
reasonable grounds, not certainty thereof. The approach of the
magistrate
amounts to requiring certainty and is wrong. See
DUNCAN
v MINISTER OF LAW AND ORDER
1986 (2) SA 805
(A) at 819 G – 820 B. Secondly, on inspector
Becezi’s version, he requested the respondent to give an
explanation in respect
of the allegations against him and the
respondent refused or elected not to do so.
[8] The
magistrate made no finding of credibility. As the onus on the issue
in question was on the appellant, the matter has to be
decided on the
version of the respondent, unless that version could be rejected as
false on the record. In my judgment this is not
possible. On the
contrary, the probabilities tend to favour the respondent’s
version. It is not disputed that the respondent
had a letter in his
possession that was at least interpreted as permitting the respondent
to have access to the house to the exclusion
of others. It is not
disputed that the respondent took this letter,
inter
alia
,
to the magistrate and in fact showed it to the police officer Mokoena
on the day before his arrest. It is common cause that on
the day of
the arrest the respondent went to the police station on his own in
order to answer to the allegations against him. In
the circumstances
it is probable that the respondent would have taken the letter along
and would indeed have attempted to show the
letter to inspector
Becezi. Also, on inspector Becezi’s version, it is improbable that
the respondent would have become uncooperative.
In argument on
behalf of the appellant, it was suggested that the letter may not
have borne out the respondent’s version. The
difficulty with this
argument is that the onus to show that, was on the appellant.
[9] On the version that
has to be accepted for purposes of the decision of the appeal
therefore, inspector Becezi ignored a document
that was specifically
put forward in answer to the allegations against the respondent.
This was quite unreasonable. In fact, in
my view, inspector Becezi
was obliged to have a look at the letter. Had he done so, he would
soon have ascertained that a family
dispute is involved and that
there are at least considerable doubt as to whether the respondent
had the intent to commit a crime.
For this reason alone, inspector
Becezi’s suspicion cannot be said to rest on reasonable grounds.
It follows that, although for
different reasons, the finding that the
appellant did not show a reasonable suspicion, cannot be disturbed.
[10] Regarding
the quantum of damages awarded, it would appear from the magistrate’s
ex
tempore
judgment as if the respondent’s claims were simply granted as if
they were liquid claims which, of course, is impermissible and
improper. In his subsequent reasons for judgment, the magistrate
referred in this regard to two cases, namely
TOBANI
v MINISTER OF CORRECTIONAL SERVICES NO
[2000] 2 ALL SA 318
(SEC) and
GELDENHUYS
v MINISTER OF SAFETY AND SECURITY AND ANOTHER
2002 (4) SA 719
(C). The
GELDENHUYS
-case
is of no assistance in this case as the circumstances thereof are
completely different. In this case an amount of R300 000,00
was
awarded as general damages for pain and suffering in a case where the
plaintiff suffered significant brain damage as a result
of negligent
failure during cell visits to observe that the plaintiff had been
severely injured. The
TOBANI
-case
is in itself a clear indication that the present awards are
excessive. In that case an award of R50 000,00 was made where the
plaintiff was unlawfully detained from the date on which the case
against him was withdrawn on 28 July 1998 to 17 February 1999.
In
the instant case the respondent was 32 years of age at the time of
the trial, had passed matric and was married, but was unemployed.

The respondent gave no evidence as to how he experienced the unlawful
arrest and detention other than saying that he felt very sad.
I
accept, however, that respondent suffered unpleasantness and anxiety.
Instructed by the approach and principles set out in
MINISTER
OF SAFETY AND SECURITY v SEYMOUR
2006 (6) SA 320
(SCA), I believe that an amount of R15 000,00 is an
appropriate award of damages in respect of unlawful arrest and
detention in this
case.
[11] The question of
quantum of damages received virtually no attention at the trial.
Already in his heads of argument, counsel for
the respondent conceded
that the award of the magistrate cannot stand and should be
substantially reduced. In the result, the hearing
of the appeal was
for the most part confined to the questions whether the arrest and
detention were shown to have been lawful. The
appellant argued that
that was the case but was unsuccessful. In the exercise of our
discretion in the particular circumstances
of this case, I believe
that justice and fairness require that the appellant be ordered to
pay 80% of the respondent’s costs of
appeal. The appellant must of
course bear the costs of the trial.
[12] The
following orders are made:
1. The appeal succeeds
only to the extent that the awards of damages in the total sum of
R100 000,00 are set aside and replaced with
judgment in favour of the
respondent in the amount of R15 000,00.
The appellant is ordered
to pay 80% of the respondent’s costs of appeal.
________________________
C.H.G. VAN DER MERWE,
J
I concur.
_____________
S. EBRAHIM, J
On
behalf of appellant: Adv. J.Y. Claasen
With
him
Adv.
L.H. Adams
Instructed
by:
The
State Attorney
BLOEMFONTEIN
On
behalf of respondent: Adv. C. Snyman
Instructed
by:
Lovius
Block
BLOEMFONTEIN
/sp