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[2024] ZAECMKHC 78
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Minister of Police v Ose (CA70/2023) [2024] ZAECMKHC 78 (11 June 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION, MAKHANDA
CASE
NO: CA70/2023
In
the matter between:
MINISTER
OF POLICE
Appellant
And
MZIKAYISE
OSE
Respondent
JUDGMENT
Bloem
J
[1]
Mzikayise Ose, the respondent, was arrested by Mandisi Hlwempu, a
member of the South African Police Service, on Friday, 5 April
2019,
whereafter he was detained until Monday, 8 April 2019. After his
release from detention he instituted action against the
Minister of
Police, the appellant, claiming that he was unlawfully arrested and
detained by members of the South African Police
Service acting within
the cause and scope of their employment as servants of the state. The
court a quo found that the respondent
was unlawfully arrested and
detained and awarded R300 000 as damages, together with costs of
the action. An application for
leave to appeal was refused by the
court a quo. It is with the leave of the Supreme Court of Appeal that
the appellant appeals
against the order and judgment of the court a
quo.
[2]
The facts are briefly that during the evening of Friday, 5 April 2019
the respondent was travelling home along the N2 outside
Grahamstown
when he came across a group of people. His wife and nine-year-old son
were inside the vehicle with him. He stopped
at the side of the road
to enquire what was happening. He learned that a vehicle or vehicles
had collided with cows, that the police
had been at the scene of the
collision (the accident) and that they accompanied the drivers of the
vehicles to the Grahamstown
police station. Persons helped themselves
to the carcasses of the cows. He requested whether he could have some
meat whereafter
a hindleg and the head of a cow, both still unskinned
(the meat), were placed in the boot of his vehicle.
[3]
Near the Committees Drift police station he was stopped at a
roadblock. Captain Hlwempu came across the meat in the boot of
the
respondent’s vehicle. He called for an explanation and the
respondent said that he obtained the meat from the scene of
the
accident. The respondent, his wife and his son were taken to the
Committees Drift police station.
[4]
It is common cause that captain Hlwempu made a call to the
Grahamstown police station to enquire whether the accident had been
reported at that police station. However, there is a dispute as to
the response to that enquiry. Captain Hlwempu testified that
the
response he received from the person to whom he spoke was that
“
Grahamstown police did not know about an accident which
occurred in their area
”. On the other hand, both the
respondent and his wife testified that captain Hlwempu had switched
on the speaker of the telephone
which he used and they heard the
conversation between him and the police officer on the other side.
Both testified that the police
officer on the other side confirmed
that the accident had been reported at that police station. The
respondent and his wife also
testified that after the police officer
had confirmed the reporting of the accident at the Grahamstown police
station, captain
Hlwempu said to the respondent that he was lucky.
[5]
The respondent left the police station to check on his son who was
still inside the vehicle. Upon his return, he noticed captain
Hlwempu
putting his hand on his wife’s breast. When he testified,
captain Hlwempu denied such inappropriate behaviour. He
acknowledged
that subsequent to the respondent’s arrest and detention, he
faced disciplinary proceedings arising from a complaint
that the
respondent’s wife had lodged against him in respect of the
alleged inappropriate behaviour in the police station.
[6]
In a statement that captain Hlwempu made a few hours after the
respondent’s arrest, he said that, before he took the
respondent to the police station, he “
then warned the
suspect that he is under arrest for being in possession of stolen
meat. I then took the suspect to the police station.
”
[7]
Captain Hlwempu testified that he reported the matter to the
commander of the stock theft unit in Grahamstown, who, in turn,
contacted the stand-by police officer in that unit, Sakhekile Nzipho.
Sergeant Nzipho testified that after he had been informed
by his
commander of a person who had been arrested and waiting at the
Committees Drift police station, he contacted the Committees
Drift
police station to establish what the case was all about. A colleague
informed him that the arrested person had been found
in possession of
the meat which he claimed to have obtained from the scene of the
accident. Sergeant Nzipho then contacted the
Grahamstown police
station to establish whether such an accident had been reported at
that police station. After receiving confirmation
thereof, he drove
to the scene of the accident where he found evidence of the accident,
like debris and intestines on the tarred
surface of the road.
Sergeant Nzipho testified that he drove to the Committees Drift
police station, approximately 45 kms from
Grahamstown, where he found
captain Hlwempu, constable Mbilana and the respondent. He noticed
that the police officers were busy
with paperwork regarding the
respondent’s arrest.
[8]
After the docket had been handed to him, captain Hlwempu informed him
that the respondent would be detained in Grahamstown.
Sergeant Nzipho
transported the respondent to Grahamstown where he was detained at
the Joza police station until Monday, 8 April
2019. The respondent’s
evidence was that before he set foot in court on the Monday, a police
officer informed him, while
he was still inside the court cell, that
he would not go to court and that he could go home. It turned out
that the public prosecutor
declined to prosecute the respondent. It
is against the above factual matrix that it must be decided whether
the court a quo correctly
found that the respondent was unlawfully
arrested and detained.
[9]
The starting point is the reason for the respondent’s arrest.
As pointed out above, in his statement captain Hlwempu said
that the
respondent was arrested because he was “
in possession of
suspected stolen meat
”. In another statement, which was
also made on 6 April 2019, captain Hlwempu said that at 23h55 on 5
April 2019 he arrested
the respondent “
for the offence of
possession of suspected stolen meat
” and that “
he
was in possession of suspected stolen meat in the boot of his
vehicle
”. The face of the case docket, wherein captain
Hlwempu is identified as the complainant, identified the nature and
description
of the offences as theft, possession of suspected stolen
meat and transport of carcass without the required documentation.
[10]
In the light of the contents of the case docket, I have no doubt that
the charges of theft and transportation of the carcass
without the
required documentation were an afterthought. That is apparent from
the way in which those offences had been inserted
on the front cover
of the case docket. Immediately under the heading ‘Nature and
description of offence’ is written
‘Possession of
suspected stolen meat’. The date, time and place where the
alleged offence occurred were inserted. However,
the same cannot be
said for the offences of theft and transportation of a carcass
without the required documentation. The word
‘Theft’ has
been written above the heading and the offence of ‘Transport of
carcass without the required documentation’
was written below
the space provided for the description of the offences. Secondly, in
none of the statements that captain Hlwempu
made is reference made to
either theft of the carcass or a portion thereof; or that the
respondent transported the meat without
the required documentation.
Thirdly, the appellant pleaded that the respondent “
was
lawfully arrested and detained on a charge of being in possession of
suspected stolen
meat”. In the circumstances, the court a
quo was correct in its finding that the respondent was arrested
because he was allegedly
in possession of suspected stolen meat. It
must accordingly be determined whether the court a quo correctly
found that the respondent
was unlawfully arrested and detained.
[11]
The appellant relied on section 40(1)(
a
), (
b
) and (
e
)
of the
Criminal Procedure Act 51 of 1977
to justify the respondent’s
arrest without a warrant of arrest.
Section 40
provides for the
circumstances under which a police officer may arrest a person
without a warrant of arrest. In so far as it is
relevant to this
case,
section 40(1)
provides as follows:
“
(1) A peace
officer may without warrant arrest any person-
(a) who commits or
attempts to commit any offence in his presence;
(b) whom he reasonably
suspects of having committed an offence referred to in Schedule 1,
other than the offence of escaping from
lawful custody;
…
(e) who is found in
possession of anything which the peace officer reasonably suspects to
be stolen property or property dishonestly
obtained, and whom the
peace officer reasonably suspects of having committed an offence with
respect to such thing;
…
(g) who is reasonably
suspected of being or having been in unlawful possession of stock or
produce as defined in any law relating
to the theft of stock or
produce.”
[12]
The Stock
Theft Act 57 of 1959 (the Stock Theft Act) was promulgated to combat
theft of stock and produce.
[1]
Each of sections 2 to 10 thereof, except for sections 5 and 9,
creates different offences. Section 2 provides as follows:
“
Any person who is
found in possession of stock or produce in regard to which there is
reasonable suspicion that it has been stolen
and is unable to give
satisfactory account of such a possession shall be guilty of an
offence.”
[13]
The
elements of the offence under section 2 are that the person (i) was
found in possession of (ii) stock or produce (iii) in regard
to which
there is a reasonable suspicion that the stock or produce had been
stolen; and (iv) the suspect is unable to give a satisfactory
account
of such possession.
[2]
It is
undisputed that the respondent was found in possession of stock,
which, in terms of section 1 of the Stock Theft Act, includes
the
carcass or a portion of the carcass of a cow. The next enquiry is
whether captain Hlwempu could be said to have had a reasonable
suspicion that the meat was stolen. That depends on the circumstances
of the case. In
S
v Nomtebe
[3]
the accused was found in possession of five goats with kids and six
sheep in a kraal. She failed to explain her possession of the
stock.
The magistrate, based on those facts, believed that he was entitled
to infer that the stock was stolen and convicted the
accused of
theft. The reviewing Judge did not agree that that was the only
reasonable inference to be drawn. The mere fact that
the accused was
in possession of the stock did not lead to the irresistible inference
(in this case, a reasonable suspicion) that
they had been stolen. He
concluded that the absence of such inference (reasonable suspicion)
meant that the accused was not called
upon to give any explanation
for her possession.
[14]
Although
section 2 requires a reasonable suspicion, and not certainty, the
suspicion must be based on solid grounds to be reasonable.
Would a
reasonable person in captain Hlwempu’s position with the same
information as him, have considered that there were
good and
sufficient grounds for suspecting that the meat in the boot of the
respondent’s vehicle was stolen? A reasonable
person will
analyse and assess the quality of the information at his disposal
critically and check it where it can be checked.
[4]
The information at captain Hlwempu’s disposal when the alleged
reasonable suspicion was formed, was that the respondent had
the meat
in the boot of his vehicle shortly before midnight on the night in
question. Captain Hlwempu’s undisputed evidence
was that the
roadblock, where the respondent’s vehicle was searched and the
meat found, was set up because of the high incidence
of stock theft
in the area. In my view, if regard is had to the above circumstances
under which the meat was found in the respondent’s
possession,
captain Hlwempu had grounds for reasonably suspecting that the meat
was stolen. That is not the end of the enquiry
in terms of section 2
of the Stock Theft Act.
[15]
The
respondent was called upon to give a satisfactory account of the meat
in respect whereof captain Hlwempu entertained a reasonable
suspicion
that it had been stolen. An explanation, to be satisfactory, must be
such that it gives an account of the possession
of the suspected
stolen meat in the sense that the possession thereof was in good
faith and innocent in regard to the purpose of
the Stock Theft
Act.
[5]
[16]
The respondent’s explanation was that, when he arrived at the
scene of the accident, he stopped his vehicle at the side
of the road
and asked the people who had gathered what they were doing. The
response was that vehicles had collided with cows,
that the police
were there but had left with the drivers of the vehicles involved in
the accident. He saw those persons taking
meat for themselves. He
asked them to give him some of the meat and they obliged by giving
him the hindleg and head. When he was
cross-examined about whether he
had permission from the owners of the cows to take meat from the
carcasses, his response was that
he asked the people on the scene of
the accident and that he took the meat “
because those people
did not show that it doesn’t belong to them. I asked for it and
they gave me.
” He then drove off.
[17]
I am of the view that the facts of this case are no different from a
truck loaded with cooldrink which overturned and persons
who come
across the overturned truck help themselves to the cooldrink. If one
of those persons was found not far from the scene
of the overturned
truck with, for example three crates of cooldrink, each crate
containing 12 2-litre bottles of cooldrink in his
possession, there
would, in my view, be a reasonable suspicion that the cooldrink had
been stolen from the truck. An explanation
that others allowed him to
take the cooldrink and that the police had taken the driver of the
truck to the police station or to
a medical practitioner, would not
be a satisfactory explanation for the cooldrink in such person’s
possession. Similarly,
a reasonable person would not have had a
bona
fide
belief that he was entitled to take the meat, even though
members of the South African Police Service were on the scene and had
thereafter taken the drivers of the vehicles to the police station.
It is accordingly found that the respondent did not give a
satisfactory account to captain Hlwempu of his possession of the
meat. In the circumstances, all the requirements of section 2
of the
Stock Theft Act were met.
[18]
I now deal with whether the appellant established that he was
justified to arrest the respondent in terms of section 40(1)(
a
),
(
b
) or (
e
) of the
Criminal Procedure Act, as
pleaded.
In my view, and regard being had to the elements of the offence
created under section 2 of the Stock Theft Act, that offence
was
committed in the presence of captain Hlwempu, as envisaged in section
40(1)(
a
) of the
Criminal Procedure Act. That
is so because the
respondent was found in possession of the meat in regard to which
captain Hlwempu had a reasonable suspicion
that it was stolen and the
respondent was unable to give a satisfactory account of his
possession of the meat.
[19]
The
jurisdictional facts for a defence under
section 40(1)(
b
)
of the
Criminal Procedure Act are
that (i) the arrestor must be a
peace officer; (ii) the arrestor must entertain a suspicion; (iii)
the suspicion must be that the
suspect committed an offence referred
to in Schedule 1; and (iv) the suspicion must rest on reasonable
grounds.
[6]
Absent one of the
jurisdictional facts, a defence based on
section 40(1)(
b
)
cannot succeed. I will, in favour of the appellant, assume that each
of the jurisdictional facts for his defence under
section 40(1)(
b
)
has been established, except whether the offence created under
section 2 of the Stock Theft Act is an offence referred to in
Schedule 1 of the Criminal Procedure Act. The closest offences to the
offence under section 2 of the Stock Theft Act are “
Theft,
whether under the common law or statutory provision
”
and “
Receiving
stolen property knowing it to have been stolen
”.
It was specifically held in
S
v Buthelezi
[7]
that the offence created under section 2 of the Stock Theft Act
“
cannot
be said to be “theft” or “stock theft”, nor
are they the same as receiving stolen property well knowing
it to
have been stolen
”.
I respectfully agree with that finding. The reason therefor is that
those are separate offences, distinct from the offence
created under
section 2 of the Stock Theft Act. Since a jurisdictional fact is
absent from a defence under section 40(1)(
b
)
of the
Criminal Procedure Act, the
appellant failed to show that the
respondent’s arrest was justified in terms of
section 40(1)(
b
).
[20]
The appellant also pleaded that the respondent’s arrest was
justified in terms of
section 40(1)(
e
) of the
Criminal
Procedure Act. The
jurisdictional facts for a defence under
section
40(1)(
e
) are that (i) the arrestor must be a peace officer;
(ii) the suspect must be found in possession of property; (iii) the
arrestor
must entertain a reasonable suspicion that the property has
been stolen or illegally obtained; (iv) the arrestor must entertain
a
suspicion that the person found in possession of the property has
committed an offence in respect of the property; and (v) the
arrestor’s suspicion must rest on reasonable grounds. It will
be noted that
section 40(1)(
g
) deals specifically with a
person reasonably suspected of being or having been in unlawful
possession of stock or produce, as defined
in any law relating to the
theft of stock or produce. The law that relates to the theft of stock
or produce is the Stock Theft
Act. In my view, section 40(1)(
e
)
deals with property generally, whereas section 40(1)(
g
) deals
specifically with stock or produce. The appellant has for some
inexplicable reason not relied on the provisions of section
40(1)(
g
)
in his plea, with the result that the inclusion of reliance on
section 40(1)(
e
) as a defence excludes reliance on section
40(1)(
g
) as a defence. It therefore means that, because the
Legislature specific deals with stock or produce in section 40(1)(
g
),
reference to property generally in section 40(1)(
e
) excludes
stock or produce.
[21]
In the circumstances, the appellant cannot rely on section 40(1)(
b
),
(
e
) or (
g
) of the
Criminal Procedure Act. He
had been
able to establish the jurisdictional facts for the defence of
section
40(1)(
a
) only. But, even if the conclusion that the appellant
cannot rely on or has failed to satisfy the requirements of
section
40(1)(
b
), (
e
) or (
g
) is wrong, and even if it
should have been found that the jurisdictional facts of
section
40(1)(
b
), (
e
) or (
g
) had been established, the
finding regarding the respondent’s unlawful arrest and
detention will remain the same, for the
reasons set out hereunder.
[22]
Once the
jurisdictional facts for an arrest in terms of
section 40(1)(
a
)
are present, captain Hlwempu had a discretion whether to arrest or
not.
[8]
He would have had the
same discretion had the respondent been arrested under
section
40(1)(
b
),
(
e
)
or (
g
).
It means that the presence of all the jurisdictional facts of the
defence under
section 40(1)(
a
)
does not mean that an arrest is lawful and that the police officer
must or shall arrest. The court must still determine whether
the
facts justify the suspect’s arrest. The lawfulness of an arrest
will be closely connected to the facts of the situation.
[9]
One of the contentions upon which the appeal turned in
Hlape
v Minister of Police
[10]
was whether Mr Hlape’s arrest was unlawful because, as he
alleged, the arresting officer did not exercise the discretion
conferred on him before arresting Mr Hlape.
Section 40(1)
states
when, the jurisdictional factors of any of those subsections have
been establish, a police officer
may
arrest the suspect without a warrant of arrest.
[23]
A distinction needs to be drawn between the failure to properly
exercise the discretion conferred on the arresting officer
by
section
40(1)
of the
Criminal Procedure Act and
a failure to exercise the
discretion at all.
[24]
An arrestee who alleges that his arrest was unlawful because the
arresting officer failed to properly exercise the discretion
conferred on him under
section 40(1)
or failed to exercise the
discretion at all, bears the onus of proving such failure, rendering
his arrest unlawful. The exercise
of the discretion to arrest must be
rational. The test whether the discretion was rationally related to
the purpose for which the
power to arrest was given is an objective
one.
[25]
A police officer who effects an arrest in terms of
section 40(1)
of
the
Criminal Procedure Act exercises
a public power. The decision to
arrest must accordingly be rational to pass constitutional muster.
The Constitutional Court expressed
itself in this regard as follows:
“
It
is a requirement of the rule of law that the exercise of public power
by the Executive and other functionaries should not be
arbitrary.
Decisions must be rationally related to the purpose for which the
power was given, otherwise they are in effect arbitrary
and
inconsistent with this requirement. It follows that in order to pass
constitutional scrutiny the exercise of public power by
the Executive
and other functionaries must, at least, comply with this requirement.
If it does not, it falls short of the standards
demanded by our
Constitution for such action.”
[11]
[26]
A court
will be very slow to interfere with the discretion that has been
exercised as long as the exercise of that discretion is
objectively
rational. The court would not interfere if it is of the view that the
arresting officer exercised the discretion “
in
a manner other than that deemed optional by the court
”.
The standard of rationality is not breached as long as the discretion
is exercised within the bounds of rationality.
[12]
An arresting officer has to collate facts and exercise his discretion
based on those facts. Those facts may include an investigation
of the
exculpatory explanation provided by the suspect.
[13]
It is upon an examination of those facts that an arresting officer
has to exercise his discretion.
[27]
Captain
Hlwempu conceded that he had no reason to believe that the respondent
did not own a fixed property, gave him a wrong address,
lied when he
said that he was employed by the Nqushwa Municipality, or would not
appear in court if issued with a summons. In
Tsose
v Minister of Justice and Others
[14]
it was held that where a person to be charged has a fixed or known
address, it is generally desirable that a summons be issued
to secure
his attendance at trial. In the light of what follows, it is
unnecessary to establish and deal with the information at
captain
Hlwempu’s disposal to determine whether he exercised the
discretion to arrest properly.
[28]
In terms of
section 38(1)
of the
Criminal Procedure Act, the
methods of securing
the attendance of a suspect, who is 18 or older, in court for the
purposes of his or her trial shall be arrest,
summons, written notice
and indictment. The Police Standing Order (G) 341
[15]
acknowledges that an arrest constitutes one of the most dramatic
infringements of the rights of an individual. Members of the South
African Police Service are therefore advised to regard arrest as a
last resort, to be utilised only in those cases where less invasive
options are unavailable.
[29]
The
situation is different when the discretion conferred on a police
officer by
section 40(1)
of the
Criminal Procedure Act is
not
exercised at all. In
Director-General:
Department of Home Affairs and Another v Mavericks Revue CC
[16]
the
Department of Home Affairs granted a corporate permit to the
respondent corporation to employ 70 exotic dancers in terms of
section 21
of the
Immigration Act 13 of 2002
. A functionary within
the Department of Home Affairs declined to issue work permits to the
dancers unless each of them paid a fee
for a work permit; and
provided a cash deposit as security for repatriation. It was common
cause that the functionary had a discretion,
albeit delegated, to
require payment of a repatriation deposit. The Department of Home
Affairs had instructed the functionary to
ask for a repatriation
deposit in all similar cases. She executed that instruction and did
not exercise the discretion conferred
on her by
regulation
18(6)(
b
)(iii).
The court assumed that
regulation 18(6)(
b
)(iii)
allowed for further security (in addition to the security that was
provided when the respondent corporation obtained the
corporate
permit) to be demanded at the functionary’s discretion. The
high court found that, by merely executing the instruction,
the
functionary failed to exercise any discretion at all, with the result
that her decision was unlawful. The Supreme Court of
Appeal confirmed
that finding.
[17]
[30]
Captain Hlwempu’s evidence was that, after the jurisdictional
facts had been established, he did not consider other methods
of
securing the respondent’s attendance at court. The relevant
portion of his evidence reads as follows:
“
Mr Nguta: So let
me try to get this from you. Did you consider issuing him with a
summons?
Mr Hlwempu: No.
Mr Nguta: Okay, then it
is simple. You never exercised any discretion. You never considered
it.
Mr Hlwempu: No sir.
Mr Nguta: Yes, that is
perfect. In your mind there was only one thing possible, arrest him.
You did not consider any other alternative.
You already said that.
Mr Hlwempu: Yes.”
[31]
I am satisfied that, in the light of the above evidence, captain
Hlwempu did not exercise the discretion conferred on him by
a
section
40(1)
of the
Criminal Procedure Act before
he arrested the
respondent. In the circumstances, the respondent’s arrest was
unlawful.
[32]
Mr Petersen submitted that captain Hlwempu had no alternative but to
arrest the respondent because the alternatives provided
for in
section 38
of the
Criminal Procedure Act were
not available to him. I
shall deal with only the option of a written notice.
[33]
In relevant part,
section 56(1)
of the
Criminal Procedure Act reads
as follows:
“
If
an accused is alleged to have committed an offence and a peace
officer on reasonable grounds believes that a magistrate's court,
on
convicting such accused of that offence, will not impose a fine
exceeding the amount determined by the Minister from time to
time by
notice in the
Gazette
,
such peace officer may, whether or not the accused is in custody,
hand to the accused a written notice … ”.
[18]
[34]
Captain
Hlwempu testified that he was unaware of the value of the cows which
had been killed in the accident, but he would not sell
a cow for less
than R10 000. If regard is had to the fact that the respondent
was not arrested for theft of a cow, a carcass
thereof or any portion
of such carcass, it is in my view improbable that a sentence
exceeding a fine of R5 000 would have
been imposed upon
conviction of an offence under section 2 of the Stock Theft Act. That
is particularly the case if regard is had
to his undisputed version
of how the respondent came to be in possession of the meat. Nothing
prevented captain Hlwempu from handing
a written notice to the
respondent to appear in court, thereby avoiding the invasive
procedure of an arrest. In all the circumstances,
the respondent’s
arrest was unlawful, with the result that his detention was also
unlawful.
[19]
[35]
The purpose
of awarding damages is not to enrich a claimant, but to offer him
solatium for his injured feelings. There should be
a rational link
between the harm caused and the damages awarded. The award should
accordingly be commensurate with the harm. In
the final analysis,
each case must be decided on its on facts, which must be looked at as
a whole. The quantum of damages must
be determined on those facts
[20]
and be fair not only to the claimant, but also to the party who has
been ordered to pay the damages.
[36]
An award of
damages for unlawful arrest and detention must express the premium
that our courts place on the right to freedom as
well as the right to
have a person’s right to dignity respected and protected.
[21]
[37]
Mr Petersen
submitted that the amount of damages awarded by the court a quo was
so excessive that it calls for intervention by this
court. Counsel
relied primarily on
Minister
of Police v Khedama
[22]
wherein the appellant was arrested on 3 December 2011 and thereafter
detained until her release on 12 December 2011, nine days
after her
arrest. She was arrested at an airport when she was in the company of
her employer and his wife.
[38]
After her arrest she was initially detained at the Tongaat police
station in a small cell. The conditions in the cell were
like those
reflected in most recent law reports relevant to conditions in a
holding cell. It was dirty, the toilet inside it caused
a terrible
smell, there were filthy blankets and the food provided was inedible.
Those conditions made it almost impossible for
her to sleep. Six days
after her arrest, she spent a night in a cell in Mthatha. The roof of
that cell was leaking while it was
raining that night. The conditions
in the cell were no different from those described above. On the
following night she found herself
in another cell in East London with
other female prisoners. The following morning, they continued their
journey to Cape Town. They
stopped at a petrol station where she, for
the first time in seven days, freshened up in the washroom of the
petrol station. They
finally arrived in Cape Town during the night of
11 December 2011. The following day she appeared in the magistrate’s
court
and was granted bail. It finally transpired that she was not
the person sought.
[39]
Ms Khedama testified how traumatic the experience of her arrest and
detention was. Her relationship with her employer was badly
affected
because of her arrest and detention. On her return to work she was
demoted from being a sales manager to a salesperson.
There was expert
evidence that she had symptoms of anxiety, flashbacks,
hypervigilance, sleep deprivation and reduced libido after
her arrest
and detention. The diagnosis was that she had probably suffered from
post-traumatic stress disorder.
[40]
In the
light of the above factors the trial court awarded the sum of
R1 000 000 to Ms Khedama.
[23]
Not satisfied with that award, the appellant appealed to the full
court against that award. The court had regard to other cases
[24]
as a guide to award what it considered as an appropriate award. It
considered that the award of R1 000 000 by the trial
court
was out of proportion to the injury inflicted. In respect of the
other authorities, it said the following:
“
Mindful
of the traumatic experience of Ms Khedama and in no way attempting to
diminish or detract therefrom, one must, in my view,
when considering
the appropriateness of the award of the court
a
quo
have
regard to the awards of our courts in even more horrific
circumstances. For instance, in
Mahlangu
,
several police officers tortured the first plaintiff to make a
confession. Subsequently, he and his supposed co-perpetrator were
placed in ‘solitary confinement for two months in order to
protect them from attack and taunting by fellow detainees who
believed that they killed their relatives.’ They were detained
for eight months and 10 days and were awarded R500 000 by
the
Constitutional Court in May 2021. Also in
W[...]
v Minister of Police
the
court took into account the appalling conditions of the cells in
which Mr W[...] had been kept, he was subjected to being controlled
by a gang who raped other prisoners and he was raped on two
occasions. Mr W[...] later had his own cell, with a bed, but was then
in isolation. He was detained for 13 months, and was awarded R500 000
in 2014.”
[41]
Having considered the circumstances under which Ms Khedama was
arrested and the conditions under which she was detained, the
full
court deemed that the sum of R350 000 was appropriate.
[42]
Counsel
also referred to
Motsaathebe
v Minister of Police
[25]
wherein the plaintiff was unlawfully arrested and detained for one
day in “
inhumane
conditions. There was no water. The latrine was not functioning. The
blankets in the cell were inadequate given the number
of detainees
”.
On 19 January 2024 he was awarded R30 000 for damages arising
from his arrest and detention.
[43]
I have also
considered
Rudolph
[26]
wherein the appellants were unlawfully arrested at about 17h00 on a
Friday and released at about midday on the following Tuesday.
They
were subjected to what the Supreme Court of Appeal described as
humiliating conditions. Those conditions were that “
t
he
cell in which they were held was not cleaned for the duration of
their detention. The blankets they were given were dirty and
insect-ridden and their cell was infested with cockroaches. The
shower was broken and they were unable to wash. They had no access
to
drinking water. Throughout their detention the first appellant, who
suffers from diabetes, was without his medication. They
were not
allowed to receive any visitors, not even family members
.”
On 31 March 2009 the Supreme Court of Appeal awarded each of the
appellants the sum of R100 000 for arrest and detention.
That
sum equates to R217 000 in 2024.
[44]
In
Diljan
v Minister of Police
[27]
the Supreme Court of Appeal warned against the “
progressively
exorbitant amounts that are claimed by litigants lately in comparable
cases and sometimes awarded lavishly by our
courts
”.
The court referred to the high court judgment in
Khedama
as an
example. That was before the full court reduced the award granted by
the trial court to R350 000. The appellant in
Diljan
was
arrested at about 16h00 on a Friday and thereafter detained until the
following Tuesday morning. She did not appear in court.
The court
described the conditions under which she was detained as appalling.
The police cell in which she was detained was filthy
with no hot
water; the blankets were dirty and smelling; the toilet was blocked;
she was not provided with toilet paper; she was
not allowed visitors;
and she could not eat the bread and peanut butter that was the only
food provided to her. She was deprived
of visitation rights by her
family and that resulted in her not receiving medication for her
heart condition. Her arrest caused
her humiliation which was
exacerbated by her children, grandchildren and neighbours witnessing
her arrest. On 24 June 2022 the
amount of R120 000 was awarded to her
for arrest and detention. That amount equates to R135 240 in 2024.
[45]
In the present case, I have considered that the respondent was
arrested in the presence of his wife and son; is a leader at
his
church; is permanently employed by a local municipality; after his
arrest, he witnessed captain Hlwempu putting his hand on
his wife’s
breast; it was the first time that he was arrested; he was detained
in a filthy cell and given a thin plastic
mattress with filthy
blankets, causing him not to sleep during the period of detention;
shared the cell with other persons; was
provided with inedible food;
and the police officers refused to accept the food that his wife
wanted to give him. Taking all the
facts of this case into account
and having regard to comparable cases, particularly
Rudolph
and
Diljan
, I am of the view that an appropriate amount of damages
would be R160 000. Since the difference of what was awarded by the
trial
court and what I deem appropriate is so vast, the amount of
R350 000 should be reduced to R160 000.
[46]
Although Mr Petersen submitted that the trial court should have
awarded costs on the magistrate’s scale because, so he
submitted, the respondent could have issued summons in that court, I
am not persuaded that the trial court erred in that regard.
The trial
court considered the issue of costs and exercised its discretion and
did not misdirect itself in that regard. It is pointed
out that in
Diljan
, the magistrate’s court and the high court,
sitting as a court of appeal, dismissed the appellant’s claim
for damages
for arrest and detention. The Supreme Court of Appeal
upheld the appeal against the dismissal of her claim and ordered the
appellant
to pay the costs of the appeal, as well as the costs
incurred in the magistrate’s court and the high court. Those
costs were
on the high court scale. There is no reason to disturb the
finding of the trial court that the appellant should pay the
respondent’s
high court costs.
[47]
Although the appellant has been substantially successful in this
appeal, I am of the view that it would be appropriate for
each party
to pay his own costs occasioned by the appeal. The respondent should
not be burdened with having to pay the costs relating
to the appeal.
[48]
In the result, it is ordered that:
1. The appeal is upheld
to the extent set out in paragraph 2 hereunder.
2. Paragraphs 2 and 3 of
the order of the court a quo are set aside and replaced with the
following:
“
2. The defendant
shall pay to the plaintiff the sum of R160 000 as and for damages for
the aforesaid unlawful arrest and detention.
3. The defendant shall
pay interest on the sum of R160 000 at the prescribed rate of
interest, calculated from the date of judgment,
being 19 May 2022, to
the date of payment”.
3. Each party shall pay
his own costs relating to the appeal.
GH
BLOEM
Judge
of the High Court
Brooks
J.
I
agree.
RWN
BROOKS
Judge
of the High Court
Laing
J.
I
agree.
JGA
LAING
Judge
of the High Court
APPEARANCES
For
the appellant: Mr F Petersen, instructed by the State Attorney,
Gqeberha and Netteltons Attorneys, Makhanda.
For
the respondent: Mr M Nguta with Mr L Dinisa, instructed by Mgangatho
Attorneys, Makhanda.
Date
of hearing:
20 May 2024.
Date
of delivery of judgment:
11 June 2024.
[1]
S v
Nader
1963 (1) SA 843
(O) at 848F-G.
[2]
R v
Ismail and Another
1958 (1) SA 206
(AD) at 209H and
S
v Kane
1963 (3) SA 404
(T) at 405H.
[3]
S v
Nomtebe
1970
(4) SA 162 (E).
[4]
Mabona
v Minister of Law and Order
1988
(2) SA 654
(SECLD) at 658E-H.
[5]
S v
Nader
fn
1 at 848F-G.
[6]
Minister
of Safety and Security v Sekhoto
[2010]
ZASSCA 141;
2011 (5) SA 367
(SCA);
2011 (1) SACR 315
(SCA); [2011] 2
All 157 (SCA) par 6.
[7]
S v
Buthelezi
1967 (2) 540 (N) at 541E-F.
[8]
Minister
of Safety and Security v Sekhoto
in
fn 6 par 28.
[9]
Minister
of Safety and Security v Van Niekerk
2008
(1) SACR 58
(CC) par 20.
[10]
Hlape v
Minister of Police
[2024] SASCA 68.
[11]
P
harmaceutical
Manufacturers Association of SA and Another: In re ex parte
President of the Republic of South Africa and Others
[2000] ZACC 1
;
2000 (2) SA 674
(CC) par 85.
[12]
Sekhoto
fn 6
par 39.
[13]
Groves
NO v Minister of Police
[2023] ZACC 36
;
2024 (1) SACR 286
(CC);
2024 (4) BCLR 503
(CC) paras
52 and 60.
[14]
Tsose v
Minister of Justice and Others
1951
(3) SA 10
(A) 17G-H.
[15]
The Police Standing Order was issued under Consolidated Notice
15/1999.
[16]
Director-General:
Department of Home Affairs and Another v Mavericks Revue CC
2008
(2) SA 418 (SCA).
[17]
Mavericks
fn 16 paras 15 and 16.
[18]
With effect from 30 January 2013 a fine should not exceed R5 000.
[19]
Minister
of Safety and Security v Tyokwana
2015 (1) SACR 597
(SCA) at 600g-h.
[20]
Rudolph
and Others v Minister of Safety and Security and Another
2009
(5) SA 94
(SCA) par 26.
[21]
Minister
of Police v Du Plessis
2014
(1) SACR 217
(SCA) par 15.
[22]
Minister
of Police v Khedama
[2024]
ZAKZPHC 23.
[23]
It appears that, had Ms Khedama’s particulars of claim not
been limited to R1 000 000, the trial court might
have
awarded R1 760 000 in respect of wrongful arrest (R100 000);
wrongful detention, calculated at R80 000 per
day for 12 days
(R960 000); defamation (R500 000); and general damages
(R200 000).
[24]
Mahlangu
v Minister of Police
[2021]
ZACC 10
;
2021 (2) SACR 595
(CC);
2021 (7) BCLR 698
(CC) par 51 and
W[…]
v Minister of Police
[2014]
ZASCA 108
;
2015 (1) SACR 409
(SCA); [2015] 1 All 68 (SCA).
[25]
Motsaathebe
v Minister of Police
[2024] ZANWHC 8.
[26]
Rudolph
fn
20 par 27.
[27]
Diljan
v Minister of Police
[2022]
ZASCA 103
par 20.