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[2024] ZAMPMBHC 5
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Thobela v Minister of Police (2630/2021) [2024] ZAMPMBHC 5 (24 January 2024)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
(MPUMALANGA DIVISION,
MBOMBELA)
CASE NO: 2630/2021
(1)
REPORTABLE:NO
(2)
OF INTEREST TO OTHER JUDGES:YES
(3)
REVISED: YES
DATE: 24/01/2024
SIGNATURE
In the matter between:
MOSHE
THOBELA
Plaintiff
and
MINISTER
OF
POLICE
Defendant
This
judgment was handed down electronically by circulation to the parties
and/or parties’ representatives by email. The date
and time for
hand-down is deemed to be 24 January 2024 at 10:00.
JUDGMENT
MASHILE J:
INTRODUCTION
[1]
The Plaintiff (“Thobela”), a thirty-two-year old
male person, sues the Defendant (“the Minister”) for
damages
emanating from his alleged unlawful arrest, detention and
assault on 17 December 2018 at approximately 23:00 by members of the
South African Police Services (“SAPS”) stationed at
various South African Police Stations. The arrest is said to have
happened at or near Alexandria Trust in the District of
Bushbuckridge, Mpumalanga Province. The Minister is sued in his
capacity
as the executive head of SAPS.
[2]
Despite the issuing of founding papers, service thereof and delivery
of other subsequent
processes, the action was not defended and the
Minister was not represented in Court on the date of trial. Thobela
was arrested
on 17 December 2018, detained at Calcutta Police Station
and released on 19 December 2019. The date of release of Thobela
stated
in the particulars of claim appears to be incorrect because
his evidence in Court was that he was released on 19 December 2018
and that the period of arrest over those two nights covered
approximately thirty-five hours. Moreover, Dr Makukule confirmed that
he examined Thobela on 19 December 2018 and not 2019.
[3]
Thobela was allegedly woken up late at night arrested, detained and
assaulted by members
of SAPS for being a suspect in robbery. In
consequence of the assault, Thobela sustained the following injuries:
3.1
L
eft ear,
3.2
Left knee;
3.3
Left side of the head;
3.4
Chest; and
3.5
abdomen.
[4]
The Minister has neither contested the merits nor the quantum. In
view of the Minister’s
lack of response, I am bound to accept
that Thobela was wrongfully arrested, detained and assaulted in the
manner described by
him. I am further compelled to accept that the
actions of the members of SAPS were intentional and legally
inexcusable. The actions
of the members of the SAPS led to the
injuries described above. The only issues that this Court is required
to determine are therefore
causation and patrimonial loss. In other
words, two of the four elements of delictual liability are already
present. These are,
the wrongful act and fault, either in the form of
negligence or intention.
EVIDENCE
[5]
In support of the claimed amount, two witnesses were called. The
first was Thobela
himself followed by Dr Makukule who examined him
following the assault. To start then with the evidence of Thobela. He
testified
that he was thirty-two-years old, married with one minor
child and that he resides in Alexandria, in the District of
Bushbuckridge,
Province of Mpumalanga with his wife and child. He
stated that he was awoken by loud bangs coming from the windows of
his bedroom.
[6]
He slightly opened the curtain and noticed that there were about
seven members of
the SAPS who demanded that he open the door. He told
them that he would not do so unless they furnished him with a search
warrant.
This seemed to infuriate them as they told him that they
would proceed to open without his permission. They broke down the
burglars
and forcefully pushed open the door to his bedroom. They
instructed him to come out, which he did. He was directed to a dusty
ground
where he was instructed to lie down. When he refused, he
surprisingly found himself on the ground anyway.
[7]
He could not tell how he was brought down but thought that he was
kicked on the legs.
Once on the floor, the Police assaulted him
further by jumping on his back with their boots, repeatedly kicked
him on his ribs
and abdomen. He screamed and cried. They lifted him
from the ground, and told to go back to his bedroom and to keep quiet
as he
was making noise. The Police then demanded to know from him
what he was doing at Spar Ximungwe earlier that day. He answered that
he went to buy envelopes on behalf of his mother-in-law and food for
himself.
[8]
They rejected his explanation and demanded to know who he was with
when he went to
Spar Ximungwe where he and his friends robbed a
cash-on-transit vehicle. They slapped him on the face with open
hands. They then
took an empty plastic, covered his head and face,
and tied it around his neck. They continued to slap his face with
open hands
and fists on his head and ribs. They took-off the plastic
and again repeated the question concerning the robbery at Spa
Ximungwe.
He denied any knowledge of the robbery as a result of which
they covered his head in a plastic and resumed the beatings.
[9]
They ultimately relented and told him that they were arresting him.
They guided him
to a grey double cap Ford Ranger in which he was
conveyed to Marite Satellite Police Station. Discovering that Marite
did not have
holding cells, they conveyed him to Calcutta Police
Station where the Police at that station attended to admission
administrative
procedures before incarcerating him over night. He
said that Police officers visited him in the Police cell at about
21:00. They
asked the same questions that were put to him by the
group of Police Officers that arrested him the previous night.
[10]
He told them that he was not part of what had happened at Spar
Ximungwe. They left him but warned
that they would return the
following day to assault and to establish what the truth was. They
did not come back in the morning
instead, he was informed that he
would be released and that they were waiting for some officer to sign
his release warrant. He
was eventually set free at about 10:00 on 19
December 2018 without any charges levelled at him and without
appearing in Court.
On his release, he went to see
Dr Makukule for medical examination. He explained to him that he felt
pains on his left ear, chest,
ribs and left knee.
[11]
Dr Makukule is the Medical General Practitioner who examined Thobela
after his release from custody
on 19 December 2018. His
qualifications were not challenged. He confirmed that he examined
Thobela and that he prepared a medical
certificate to which he
appended his signature. Thobela told him that he was apprehended,
assaulted and detained. His medical examination
of Thobela revealed:
11.1
A swollen left head;
11.2
A swollen left ear;
11.3
A tender chest suggesting that it was moderately painful;
11.4
Tenderness on the left and right sides of the abdomen;
11.5
That Thobela’s urine showed protein without any trace of blood
cells
confirming
that the injuries were moderate.
[12]
These injuries, he said, were consistent with those that could have
been sustained as a result
of assault. The injuries were serious but
not as severe as they could have been. Thobela did not obtain further
medical treatment
from any other medical institution other than that
from Dr Makukule.
ISSUES
[13]
The issue to be decided is whether or not
the jurisdictional preconditions mentioned below have been satisfied
in particular, whether
or not a reasonable suspicion to arrest was
present. It will be adequate to dismiss the claim if this Court finds
that one of those
jurisdictional prerequisites were not met. However,
it will not be the end of the enquiry if the Court finds that all of
the conditions
were fulfilled. The next question that will still
require determination will be to establish whether the Police
Officers exercised
their discretion to arrest rationally having
regard to the circumstances.
[14]
Insofar as quantum is concerned, Thobela must demonstrate that he
has
made out a case that the injuries that he suffered directly
contributed to the loss that he now seeks to recover from the
Minister.
If that causal link cannot be established, there cannot be
liability on the side of the Minister and the claim will stand to be
dismissed. Assuming that there exists a causal link between the
injuries and his loss, Thobela will also have to satisfy this Court
that the injuries are commensurate with the amount that he is
claiming.
LEGAL FRAMEWORK
[15]
Section
12(1) of the Constitution of the
Republic of South Africa Act No. 108 of 1996 stipulates that everyone
has the right to freedom
and security of the person, which includes
the right:
“
(a)
not to be deprived of freedom arbitrarily or without just cause;
(b)
not to be detained without trial;
(c)
…;
(d)
…;
(e)
…”
[16]
Section
40(1)(b) of the Criminal Procedure Act 51 of 1977 (CPA) provides that
a peace officer may, without a warrant, arrest any
person whom he
reasonably suspects of having committed an offence referred to in
schedule 1. The jurisdictional factors for a Section
40(1)(b) of the
CPA defence were, in
Duncan
v Minister of Law
[1]
,
held to be as follows:
16.1
The arrestor must be a peace officer;
16.2
The arrestor must entertain a reasonable suspicion;
16.3
The suspicion must be that the arrestee committed an offence referred
to in
schedule 1;
16.4
The suspicion must be based on reasonable grounds.
[17]
Insofar as quantum is concerned, Thobela has referred this Court to
two cases,
Fisa
v Minister of Police
[2]
and
Phefadu
v Minister of Police
[3]
,
which, he contended are analogous with the case under consideration.
I will look at these two cases more closely below. Whatever
the
argument is with the amount awarded in these two cases, the statement
at
Paragraph
17 of
Minister
of Safety and Security v Seymore
[4]
is significant. The Court
held as follows:
“
The assessment
of awards of general damages with reference to awards made in
previous cases is fraught with difficulty. The facts
of a particular
case need to be looked at as a whole and few cases are directly
comparable. They are a useful guide to what other
courts have
considered to be appropriate but they have no higher value than
that
.”
[18]
The
above stated, certain general principles concerning awards in these
matters have crystallised and it is significant that I describe
them
before proceeding with the assessment itself. In
Sondlo
v Minister of Police
[5]
it was held that: “
where
the coffers of the state to which citizens of the country make a
contribution are to be the source for payment of damages,
some
restraint is called for when awarding damages.”
[19]
In similar terms, the Court in
Olgar
v The Minister of Safety and Security
[6]
,
the Court stated:
"In modern South
Africa a just award for damages for wrongful arrest and detention
should express the importance of the constitutional
right to
individual freedom, and it should properly take into account the
facts of the case, the personal circumstances of the
victim, and the
nature, extent and degree of the affront to his dignity and his sense
of personal worth. These considerations should
be tempered with
restraint and a proper regard to the
value of money, to avoid
the notion of an extravagant distribution of
wealth from what Holmes J called the 'horn of plenty', at the expense
of the defendant."
[20]
In
Rahim
and 14 others v The Minister of Home Affairs
[7]
,
it was held:
"[27]
The deprivation of liberty is indeed a serious matter. In cases of
non-patrimonial loss where damages
are claimed the extent of damages
cannot be assessed with mathematical precision. In such cases the
exercise of a reasonable discretion
by the Court and broad
general considerations play a decisive role in the process of
quantification. This does not,
of course, absolve a plaintiff
of adducing evidence which will enable a court to make an appropriate
and fair award. In cases involving
deprivation of liberty the amount
of satisfaction is calculated by the Court ex aequo et bono. Inter
alia the following factors
are relevant:
(a)
Circumstances under which the deprivation of liberty took place;
(b)
The conduct of the defendants; and
(c)
The nature and duration of the
deprivation.
Having regard to the
limited information available and taking into account the factors
referred to it appears to me to be just to
award globular amounts
that vary in relation to the time each of the appellants spent in
detention."
ANALYSIS
[21]
An arresting officer must demonstrate that his reasonable suspicion
to apprehend the suspect
can be supported by objective evidence.
Failure to establish such objective evidence, the suspicion cannot be
justified and the
arrest will be unlawful. The question is therefore,
have all the four jurisdictional factors for the section 40(1)(b)
defence been
satisfied in this case? The Court find itself in an
unenviable position where it has to decide without any contribution
from the
Minister. In the absence of evidence from the Minister, the
Court will assume in favour of Thobela that the officers were peace
officers and that the offence that he was suspected to have committed
is a Schedule 1 offence.
[22]
Again, the lack of evidence from the Minister makes it impossible to
ascertain whether on the
facts of this case Thobela has successfully
demonstrated that the officers lacked a reasonable suspicion at the
time of arrest
- Thobela was part of a gang that robbed the Spar
Ximungwe and that the suspicion was based on reasonable grounds. Even
if all
these jurisdictional facts were to be marked off as having
been complied with, this Court would remain reticent whether or not
the Police Officers exercised a proper or rational discretion to
arrest him.
[23]
Assuming that all these jurisdictional factors were complied with,
the main obstacle for the
Minister is, did the officers exercise
their discretion to arrest rationally? Admittedly, it is clear from
the evidence of Thobela
that he was interviewed and questions put to
him about a robbery at Spar Ximungwe. This Court does not have any
clue why Thobela
was suspected of having been part of that gang.
Thus, a decision that they acted reasonably arresting him cannot be
readily made.
[24]
In any event, the purpose of arresting and confining a suspect is
ordinarily to secure attendance
at Court, to ensure that he does not
temper with State witnesses or destroy potential evidence. From the
evidence of Thobela, the
Court is unable to discern whether any of
these troubled the mind of the officers when they resolved to arrest
and detain him for
thirty-five hours. There is no evidence that
Thobela was a flight risk and besides, the officers obviously had his
address. Why
they could not ask him questions and warned him to come
to the Police Station leaves this Court baffled. Everything
considered,
it is the finding of this Court that the officers were
too eager to make an arrest where circumstances demanded more
circumspection.
[25]
Turning to quantum, the statement in the matter of Seymore
supra
is
significant insofar as the use of previous decisions are concerned
but it must be stated that each case must be assessed on its
own
facts. In consequence of lack of evidence from the Minister, this
Court is prepared to assume in favour of Thobela that there
exists a
direct correlation between the injuries sustained and the loss
suffered. This renders the consideration of causation gratuitous.
[26]
I
n
the matter of Phefadu
supra
,
the Court awarded a globular figure
of
R350 000.00
.
Over and above the arrest and detention, stated the Court, the
Plaintiff was severely assaulted by members of the Police and
suffered an injury to his left eye; severe bruising to the left eye;
severe bruising, abrasions and lacerations to the face, a ligamentous
injury to the left arm and shoulder; bruising and muscular injuries
to the left arm and shoulder; a deep laceration to the left
shoulder,
a concussive type head injury and emotional shock and trauma.
[2
7
]
In
the
matter of
Fisa supra
,
the Court awarded a globular amount of
R300 000.00
for general damages where the Plaintiff was detained for
approximately 6 hours during which it was found that he was severely
assaulted. The general medical practitioner who first examined the
Plaintiff in that case confirmed that the Plaintiff had complained
of
a headache and pains in his arms. During her examination of the
Plaintiff, she noted bruises and swelling of his arms and haematomas
on the back of his head.
[28]
A Clinical Psychologist told the Court that the plaintiff would
require 15 sessions of relationship,
family and sexual counselling at
the rate of
R920
per session. The Clinical Psychologist stated
that the Plaintiff’s prognosis could be regarded as poor. The
Clinical Psychologists
of the respective parties then compiled a
joint minute wherein they agreed that the Plaintiff had initially
developed acute stress
disorder followed by post-traumatic stress
disorder with depressed mood. They also agreed that his condition has
become chronic
and he will require 15 to 20 session at
R920
per session.
[29]
Dr Magagula, the Defendant’s Psychiatrist, diagnosed the
Plaintiff with major depressive
disorder and chronic post-traumatic
stress disorder. She was of the opinion that he suffered from
distress triggered by exposure
to cues, which remind him of the
trauma, namely nightmares, insomnia, intense fear and the fear of
being left alone in public places
where he is likely to encounter
Police officers. He further suffers from low self-esteem, sexual
problems, daytime drowsiness and
poor attention and concentration.
She recommended both Pharmacological and Psychological treatment.
[30]
I need to reiterate that it is important to bear in mind that each
case is to be treated differently
as previously decided cases may or
may not be helpful. That is not to say that decided cases are to be
disregarded but still they
are not to be followed dogmatically. Thus,
it is manifest from both the cases of
Fisa
and
Phefadu supra
that
although the Plaintiffs in both matters were confined and assaulted
for a shorter period when compared to the matter in
casu
,
the injuries sustained and their
sequelae
were graver.
[31]
While in both cases experts attested to the seriousness of the
injuries suffered, in
casu
there are no
particulars of the after effects of the injuries. I am consequently
obliged to assume that Thobela’s injuries
were moderate, as
testified by Dr Makukule who completed the J88 wherein he describes
his finding of his examination of Thobela.
It appears that future
medical treatment is not foreseen as it is not even claimed. Equally
there is no evidence that he has lost
income or that he will in
future as a result of the injuries that he sustained.
[32]
Everything said, the award to be made will take into account that the
Court does not take kindly
to the violation of a person’s right
to liberty. While that is so, this Court is somewhat hindered in its
determination of
the amount to award to Thobela as a result of lack
of evidence. Thobela did not adduce any evidence of the conditions
under which
he was held during the thirty-five-hour period. This
Court cannot assume that the conditions were bad or favourable.
Furthermore,
no evidence was presented stating how Thobela felt as a
result of the unlawful arrest.
[33]
That said, Thobela was arrested and assaulted in full view of his
mother and sisters. The conduct
of the officers of jumping on his
back with their boots and kicking him on the ribs, head and abdomen
was undeniably appalling.
The duration for which he was kept was
unjustifiably protracted having regard to what they needed to
establish.
[34]
Thobela has claimed an amount of
R850 000.00
for arrest,
detention and assault. The cases to which he has referred this Court
do not compare favourably with this case. Admittedly,
he was kept in
custody for longer but that did not translate into severe injuries as
was the case in
Fisa
and
Phefadu supra
. Everything
considered, it is the view of this Court that an amount of
R200
000.00
will adequately address his deprivation of liberty and the
fact that he was assaulted.
[35]
In the result, I make the following order:
1.
The Minister is ordered to pay an amount of
R200 000.00
to Thobela for the unlawful arrest, detention and assault;
2.
The Minister is liable for the Costs of
Thobela.
B A MASHILE
JUDGE OF THE HIGH
COURT OF SOUTH AFRICA
MPUMALANGA DIVISION,
MBOMBELA
APPEARANCES:
Counsel
for the Plaintiff:
Adv
SE Nhlabathi
Instructed
by
Mpho
Mashiloane Attorneys
Counsel
for the Defendant:
Instructed
by:
Date
of Judgment:
24
January 2024
[1]
1986
(2) SA 805
(A) at 818G
[2]
(1263/2012)
[2016] ZAECELLC 1 (26 April 2016)
[3]
(65249/2012)
[2017] ZAPGPPHC 583 (12 September 2017)
[4]
2006(6) SA 320 (SCA)
[5]
(14842/11)
2012 ZAPGJPHC 140(21 August 2012) at paragraph 10
[6]
2008
JDRJ582 (E) at para 16
[7]
2015
(7K6) QOD 191 (SCA), at para 27