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[2006] ZAWCHC 85
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Petersen v Minister of Safety and Security (8867/2002) [2006] ZAWCHC 85 (5 December 2006)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
CASE
NUMBER
:
8867/2002
DATE
:
5
DECEMBER 2006
In
the matter between:
BASIL
PETERSEN
…............................................................................
Applicant
and
MINISTER
OF SAFETY & SECURITY
…............................................
Respondent
JUDGMENT
Application
for Leave to Appeal
DAVIS,
J
:
This
is an application for leave to appeal against the judgment of this
Court on 5 September 2006. The events which gave rise to
the action
brought by plaintiff (applicant in this case) are indeed tragic. I do
not intend to traverse the facts which are set
out in the principal
judgment. Suffice it to say that the case did divide into three
separate issues, the lawfulness of the arrest,
the alleged indecent
assault and sodomy by fellow detainees and the alleged assaults by
Inspectors Heunis and
Ockhuis
and other police officials.
The
Court found in effect that the arrest was lawful. The Court found
that there was no evidence that the plaintiff had been assaulted
by
either Inspector Heunis or Ockhuis or other police officials, but
did find that the defendants (respondents in this application)
knew
or should have known that the plaintiff was under the age of 18 at
the time that he was brought to the Philippi Police Station
and
accordingly should have been put into a separate cell for children
at that point.
Mr
Sher
,
who again appears on behalf of the plaintiff, did not raise any new
arguments with regard to the question as to why the Court
had erred
with respect to the alleged assaults by Heunis and Ockhuis and I
think to that extent, no other court should be confronted
with the
matter on which there is absolutely no evidence and which there is
no reasonable prospects of success.
The
issue which Mr
Sher
urged
this Court, not only to effectively reconsider, but to find that
there were reasonable prospects of success, concerned the
detention
of the plaintiff in an adult cell at Philippi Police Station. In
this regard he drew a distinction between the question
of arrest and
the detention. It is true that in the particulars of claim which
were drawn, subsequent to which an agreement with
regard to damages
was reached, the relevant paragraph reads:
"Basil
Peterson has suffered damages in the amount of R2 683 150,00 which
sum is made up as follows. For and in respect of
wrongful arrest and
detention and deprivation of liberty R100 000."
Although
the issue was not argued with the precision which perhaps it
required, it is correct, notwithstanding what was set out
in those
particulars of claim, that Mr
Sher
did
submit in his written heads, that in the event that the detention
was unlawful, at least insofar as the detention in a cell
with adult
gangsters was concerned, even if the arrest was not so unlawful. To
that extent, there is no question in my mind that
another court may
well come to a different conclusion to that reached by this Court.
Of course, that will have consequences for
the damages, but that is
not the point. The point is that plaintiff should have been put into
a cell for juveniles, whilst arrested
at the Philippi Police
Station. This did not occur.
The
Court has already found that this should have happened on the
evidence which was made available to the police and accordingly
to
that extent, the continued detention of plaintiff at the Philippi
Police Cells, could well be found to have been wrongful
by another
court.
The
essence of the argument with regard to wrongful arrest was that the
information made available to Inspector Heunis, the arresting
officer, by Mr A, was that by the time the fatal shots were fired,
plaintiff and his fellow gangsters had already left the scene
and
accordingly it was not reasonable for Inspector Heunis to have
proceeded to arrest plaintiff. I must confess that I find
it
difficult to conceive that another court might come to a different
conclusion upon the test which this Court adopted. It may
well be
that another court has a stricter and narrower view as to the manner
in which police can arrest suspects.
Turning
to the issue of the assault by fellow detainees. Mr
Sher
submitted
that another court might take a more generous view of the evidence
as given by plaintiff and his mother. Mr
Jamie
,
who again appears on behalf of the defendants (respondent in this
case) contended that the first report of the assault only
took place
in Pollsmoor and not whilst the plaintiff was held at the police
station. He further submitted that if there was no
evidence, the
police did not assault the plaintiff, when questions arose as to why
plaintiff and/or his mother did not report
the events at Philippi
Police Station.
Furthermore
Mr
Jamie
urged
upon me to take account of the fact that there was no challenging to
the various cell inspections which had taken place
whilst plaintiff
was in the Philippi Police Station and that accordingly, the
evidence to justify that he had been assaulted
at the police
station, was slim at best and certainly did not justify a finding
against defendants on the probabilities.
I
have found this case an extremely difficult one. A great tragedy has
engulfed the plaintiff and his family and, I found, as
a result
thereof, that plaintiff's evidence was extremely difficult to
deconstruct, given his state of mind. I have more confidence
that
this aspect of the case is less susceptible to appeal. However, in
view of the fact that I consider that there are prospects
of
success, at least on the one point, and given that when the evidence
is examined in its totality, it may well be that another
court might
be more generous in its interpretation thereof.
I
thus find that leave to appeal should be granted in respect of the
finding that the arrest and continued detention were lawful
and
further the finding in respect of the alleged indecent assaults and
sodomy by fellow detainees at the Philippi Police Station.
These are
essentially factual questions not legal ones and it would,
therefore, only be proper that the matter be sent to a full
bench of
this Division of determination. Cost to
stand
over.
DAVIS,
J