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2024
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[2024] ZAMPMBHC 64
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N.F.M obo A.A.B.P v Minister of Police and Others (4626/2021) [2024] ZAMPMBHC 64; 2024 (2) SACR 651 (MM) (6 September 2024)
Latest amended version 9 September
2024.
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
THE HIGH COURT OF
SOUTH AFRICA
MPUMALANGA DIVISION,
MBOMBELA
CASE NO. 4626/2021
(1)
REPORTABLE: YES / NO
(2)
OF INTEREST TO OTHER JUDGES: YES/NO
(3)
REVISED: YES / NO
DATE:
06/09/2024
SIGNATURE
In the matter between:
N[...] F[...] M[...]
(OBO A[...] A[...]
B[...] P[...])
PLAINTIFF
and
MINISTER OF POLICE
FIRST DEFENDANT
THE NATIONAL
COMMISIONER OF POLICE
SECOND DEFENDANT
MPUMALANGA PROVINCIAL
COMMISSIONER
THIRD DEFENDANT
JUDGMENT
MSIBI
AJ
Introduction
[1]
The plaintiff, instituted a claim for damages based on unlawful
arrest and detention against the
Minister of Police (the first
defendant), the National Commissioner of Police (the second
defendant), and the Mpumalanga Provincial
Commissioner (the third
defendant). The plaintiff was arrested by a police officer and
detained together with her four months old
baby on the 14
th
of August 2021. On the 16
th
of August 2021 both were
released without her appearing in court. The defendants plead that
the officer who effected the arrest
acted in terms of section
40(1)
(b)
of the Criminal Procedure Act 51 of 1977 (the Act).
[2]
The court is called upon to decide whether there was a reasonable
suspicion that the accused committed
a Schedule 1 offence and if so
whether the plaintiff’s arrest and detention was lawful.
Secondly whether the child’s
detention was lawful.
[3]
The trial dealt with the merits and the quantum.
Case for the Defendant
[4]
Mr Eddie Mthandeni Ndlazi is a Detective Constable in the South
African Police Service (SAPS)
attached to Matsulu Police Station. He
was on duty on 14 August 2021 when he received a docket that was
opened by B[...] P[...]
wherein he laid a charge of malicious damage
to property. There was a witness statement of Mr Bheki Fakude (Mr
Fakude), the complainant’s
neighbour which was marked A3.
[5]
In his statement, Mr Fakude stated that he saw the plaintiff going
into the complainant’s
premises at about 18:00. He thought that
the complainant was in his house. After a few minutes, the
complainant came to his house
and made a report to him that his
Television has been damaged and there was a stone in the house.
Thereafter, Mr Fakude told him
that he saw his girlfriend minutes
earlier going into his house.
[6]
The complainant took Constable Ndlazi to his house in order for him
to see the damage to his Television
screen. On arrival he could see
that the Television screen was damaged. He could see that it was
struck with a rock from the direction
of the door. The rock was on
the floor in front of the Television. The burglar door was still
locked, the door was not locked.
He went to the accused’s home
in the company of the complainant. The plaintiff was very angry
saying that the complainant
who is her ex-boyfriend had bewitched her
and as a result she cannot have intimate contact with other men, and
that he had to undo
what he did to her. The accused admitted to
damaging the Television screen, adding that she will continue to
trouble and harass
him. Constable Ndlazi then arrested her and took
her to the police station. He decided to detain her because she was
angry, and
she was threatening to cause further harm to the
complainant.
[7]
While at her home, Constable Ndlazi asked the plaintiff to leave the
child at home, and she refused
to do so. He could have taken the
child to a place of safety, but the plaintiff refused. He arrested
her only in the presence of
her mother and the complainant, he did
not handcuff her. He had no other option except to take the plaintiff
into custody for her
safety and that of the complainant. The
plaintiff and her child were taken to Matsulu Court on Monday morning
of the 16
th
of August 2021. Her case was not enrolled by
the Prosecutor, she was released without appearing in court.
[8]
During cross-examination, Constable Ndlazi conceded to the fact that
he had no eyewitness who
saw the plaintiff damaging the Television
set. It was put to him that the complainant was his friend, he had an
ulterior motive
when arresting the plaintiff. The witness insisted
that both the complainant and the plaintiff were unknown to him. He
had reasonable
grounds to arrest and detain the plaintiff. The
witness conceded to the fact that he had a discretion whether to
grant her bail
or not. He could not grant her bail because the value
of the damaged property was above R3 000.00. As a Constable at
that
time, he did not have the discretion to grant bail where the
value of the damaged item was above R3000.00. Constable Ndlazi
further
stated that after interviewing the plaintiff he reached a
conclusion that the plaintiff will return to the complainant’s
home and cause further damage.
Case for the Plaintiff
[9] The plaintiff
testified that on 14 August 2021 she was arrested and
detained together with her 4 months old baby.
She was released on 16
August 2021 without appearing in court. While in custody she was
detained in a cell that was dirty and cold
since the weather was also
cold. She and her baby had to use cold water. They slept on a dirty
sponge next to a toilet. They also
used dirty blankets, as a result
their bodies were itchy. She personally felt judged as a criminal by
people. Upon their release
the child had rash and flu. The plaintiff
denied that she was afforded an opportunity to leave the child at
home. She never refused
to have the child taken to a place of safety
or her mother.
[10]
She further stated that she knew the arresting officer very well. He
was a friend to the complainant. She
believes that the officer took
her ex-boyfriend’s side and arrested her. She disputed the fact
that a neighbour saw her going
to the home of the complainant. The
officer never gave her an opportunity to state her side. Her
constitutional rights were not
explained. She was only handed a
document pertaining to her rights. The plaintiff was referred to the
Notice of Rights in terms
of the Constitution which was marked
Exhibit A. She signed the notice at 20:20 on the 14
th
of
August 2021.
[11] On
the date that the Television was damaged, she was not in Matsulu. She
stated that her incarceration and
that of her child were unjustified.
She is therefore claiming compensation for herself and her child.
During cross-examination
she indicated that her highest standard of
education was matric. She is able to read and write, she conceded
that on the date in
question she understood her constitutional rights
as reflected in the Notice of Rights and she could enforce them. She
further
conceded that on the date of the commission of the offence,
she left Matsulu and went to attend a funeral in Nkomazi. She left
Matsulu at 15:00 on the date in question. Her mother was present
during her arrest but she could not leave the child with her due
to
the fact that she was on a wheel chair.
[12] With this evidence,
the case for the plaintiff was closed.
Common facts
[13] It
is common cause that the plaintiff was arrested and detained with her
baby on 14 August 2021. Both mother
and child were released on 16
August 2021, without appearing in court. The arrest was effected by
Constable Ndlazi of Matsulu Police
Station, who arrested her on a
charge of malicious damage to property.
Issues for
determination
[14]
Was the plaintiff’s arrest and detention lawful? In order to
answer this question, the court must ask
itself if there was a
reasonable suspicion that the plaintiff damaged the property of the
complainant on the date in question.
Was the child’s detention
lawful? Findings in these disputes will determine the lawfulness or
otherwise of the plaintiff’s
arrest and detention.
Onus
[15]
As a general rule the onus to prove the lawfulness of an arrest or
detention rests on the defendant.
[1]
Applicable law
[16] As
for circumstances under which a peace officer can arrest a person
without a warrant of arrest section
40(1) of the Act provides as
follows:
“
40.
Arrest by peace officer without warrant
(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.”
Evaluation
[17]
It is necessary to point out that the plaintiff’s arrest and
subsequent detention are two separate
acts. In
Rowan
v Minister of Safety and Security
,
[2]
the High Court referred to
Mahlongwana
v Kwatinidubu Town Committee
,
[3]
wherein a distinction was made between arrest and detention. The
court stated as follows:
“
It
is clear that the mere act of arrest itself involves deprivation of
liberty, but our law recognises a clear distinction between
the act
of arrest, which may occur anywhere, and the act of detention in
custody, which involves incarceration after the arrest,
and pending
the taking of further procedural steps. The power granted to detain
may in particular circumstances include the power
to arrest. See
R
v Moquena
1932 OPD 52.
However, in my
view, the power to arrest does not include the power to detain save
insofar as such detention may be a concomitant
to the arrest itself.
Arrest is the act by which a free person is apprehended, if necessary
by the use of force. Once the arrest
has been effected, the authority
of the person effecting the arrest insofar as any further detention
is concerned, ceases.
S v Van Vuuren
1983 (4) SA 662
(T) at 668E. Any
subsequent detention, which involves restraint in confinement for a
specified or unspecified period of time, must
be in terms of an
authority to detain, and is not automatically conferred, without such
authority, on the person authorised to
arrest.”
The arrest
[18]
Section 38(1) of the Act provides that arrest is one of the four
methods of securing the attendance of an
accused in court for
purposes of trial. Because of its intrusive nature on the privacy and
liberty of the arrestee, an arrest has
to be effected on the
authority of a warrant, or, under certain circumstances, without a
warrant. Consequently, the onus rests
on the arrestor to justify an
arrest. In
Minister
of Law and Order and Others v Hurley and Another
,
[4]
the court stated as follows:
“
An
arrest constitutes an interference with the liberty of the individual
concerned, and it therefore seems to be fair and just to
require that
the person who arrested or caused the arrest of another person should
bear the onus of proving that his action was
justified in law.”
[19]
The Court, in
Duncan
v Minister of Law and Order
(
Duncan
),
[5]
set out four jurisdictional requirements which flow from section
40(1) of the Act, which authorizes arrests without a warrant.
They
are: that the person arresting must be a peace officer, who
entertained a suspicion that the suspicion was that the arrestee
had
committed a schedule 1 offence, and that the suspicion rested on
reasonable grounds. Applying these jurisdictional facts to
the matter
at hand, Constable Ndlazi was a police officer, who entertained a
suspicion after the complainant opened a case of malicious
damage to
property against the plaintiff. Malicious damage to property is a
criminal offence, punishable in law. The suspicion
rested on
reasonable grounds since there was a witness who also made a
statement placing the plaintiff at the crime scene. There
is evidence
that the plaintiff threatened to further harm the complainant until
her demands are met. It is thus not disputed that,
when the plaintiff
was arrested, the four jurisdictional prerequisites of s 40(1)
of the Act were present.
[20] In
this matter Constable Ndlazi testified that he visited the home of
the complainant and established that
his Television set was indeed
damaged. Meaning that he first satisfied himself that a crime had
been committed. He also saw the
rock that was used to damage the
Television set. He considered the information received from the
complainant’s neighbour,
which identified the plaintiff as the
suspect. He then went to the home of the plaintiff in the company of
the complainant. According
to Constable Ndlazi, the plaintiff
admitted that she did damage the complainant’s property and
threatened to do him more
harm unless he undoes what he did to her,
which made it difficult, if not impossible for her to be intimate
with other men. This
aspect of the defendant’s version is
denied by the plaintiff. The plaintiff argues that there is no
eyewitness who saw her
damaging the complainant’s property. The
complainant, his neighbour and the officer did not witness the
commission of the
offence. It is true that there is no direct
evidence that the plaintiff was seen damaging the Television set. The
objective facts
or circumstances that were reported to the arresting
officer, taken together with the alleged threats that were uttered by
the
plaintiff, without a doubt established a reasonable suspicion
that the plaintiff was indeed the person that damaged the
complainant’s
Television set.
[21]
The next question that arises is whether Constable Ndlazi, in
executing the arrest, exercised a discretion.
In
Minister
of Safety and Security v Sekhoto
(
Sekhoto
),
[6]
the
court
established three important principles in the exercise of a
discretion when effecting an arrest. The first is that once the
required jurisdictional facts that flow from s 40(1) of the Act, as
stated in
Duncan
are
present, a discretion arise as to whether or not to arrest. Second,
and related to the first, is where a party alleges
the failure to
exercise a discretion to arrest, that party bears the onus to prove
that allegation. Third, that the general requirement
is that any such
discretion must be exercised in good faith, rationally and not
arbitrarily. The court in
Sekhoto
further stated thus:
[7]
“
This
would mean that peace officers are entitled to exercise their
discretion as they see fit, provided that they stay within the
bounds
of rationality. The standard is not breached because an officer
exercises the discretion in a manner other than that deemed
optimal
by the court. A number of choices may be open to him, all of which
may fall within the range of rationality. The standard
is not
perfection, or even the optimum, judged from the vantage of hindsight
and so long as the discretion is exercised within
this range, the
standard is not breached.” (Footnotes omitted)
[22]
The officer did not act on the word of the neighbour alone and
arrested the plaintiff, he conducted some
investigations to satisfy
himself if indeed a crime was committed or not. He even gave the
alleged suspect an opportunity to explain
the allegations against
her. Only after having gathered enough information, and having
listened to both parties did he exercise
a discretion whether to
arrest or not. In his own words he arrested the plaintiff after he
had interviewed her and seen the need
to stop her from carrying out
her threats which she uttered in front of him despite the fact that
he was a law enforcement officer.
This illustrates the fact that he
did apply his mind to the surrounding facts of the matter before
effecting the arrest on the
plaintiff.
Rights
[23]
The plaintiff contends that the arresting officer never informed her
of her right to be released on bail.
This version, which was put
before the officer under cross examination, was refuted. Constable
Ndlazi testified that at the time
he arrested the plaintiff, police
bail could not be considered in respect of malicious damage to
property valued above R3 000.00.
The value of the damaged Television
set was R10 000.00. He further testified that he informed the
plaintiff at the police
station, of her right to be released on bail.
In support of this evidence, he referred her to the Notice of Rights
which he handed
to the appellant who read and signed it. Item 3(e) of
the notice of rights reads as follows:
“
(3)
As a person arrested for the alleged commission of an offence, you
have the following rights: . . . (e) you have the right to
be
released from detention if the interest of justice permit, subject to
reasonable conditions.”
[24]
The plaintiff confirmed the evidence of Constable Ndlazi, that she
was given the Notice of Rights document
and that she read and signed
it. She never informed the police officer that she did not understand
the Notice of Rights, nor did
she ask the officer to explain the
contents to her. When she testified in court, she stated that her
highest academic qualification
was grade 12. It could, in all
probability, be inferred that she could read and write. If the
plaintiff had read the document properly,
she could have noticed
these aspects and could then have exercised her right to request
being released on bail.
Detention of the
plaintiff
[25]
The arresting officer testified that he decided to arrest the
plaintiff due to her continued threats on the
person and property of
the complainant. Such threats were uttered in his presence and as a
result he decided to detain the plaintiff
for her own safety and that
of the complainant. From the evidence of the plaintiff, the living
conditions in custody were appalling,
nevertheless her detention was
lawful.
Detention of the minor
child
[26]
The arresting officer testified that he requested the plaintiff to
leave the child at home and she refused.
She refused to leave the
child with her mother or to take her to a place of safety. The
plaintiff disputed the arresting officer’s
version stating that
her mother was not in a position to take care of her child since she
was on a wheel chair, this version concerning
her mother’s
disability was never put to the officer during cross examination, if
it were, he would have responded to this
piece of evidence.
[27]
Section 28(1) of the constitution provides that every child has the
right –
“
.
. .
(b)
To family care or parental care, or to appropriate
alternative care when removed from the family environment;
. . .
(d)
To be protected from maltreatment, neglect, abuse
or degradation;
. . .
(g)
Not to be detained except as a measure of last
resort, in which case, in addition to the rights a child enjoys under
section 12
and 35, the child may be detained only for the shortest
appropriate period of time, and has a right to be –
(i)
kept separately from detained persons over
the age of 18 years; and
(ii)
be treated in a manner, and kept in
conditions, that take account of the child’s age.”
Subsection (2) provides
that a child’s best interests are of paramount importance in
every matter concerning a child.”
[28]
In
Raduvha
v Minister of Safety and Security and Another
,
[8]
wherein the Constitutional Court held that the detention of a child
should be a measure of last resort. The court found the detention
of
a child to be unlawful in that it was in violation of her
constitutional rights in section 28(1)
(g)
and
section 28(2) of the Constitution.
[29]
In case of doubt the arresting officer should have sought assistance
from the nearest office of the Social
Worker in respect of the safety
of the child while her mother was in lawful detention. Police cells
are not homes for children
and are thus not equipped to cater for
their needs. The detention of the child was unlawful. The same cannot
be said to about the
plaintiff’s arrest and detention. On the
contrary the plaintiff’s arrest and detention are found to be
lawful. Only
the child is therefore entitled to damages that have
been proved.
[30]
I now turn to the issue of damages for the unlawful detention of the
minor child, bearing in mind that the
primary purpose of damages as
stated in
Minister
of Safety and Security v Tyulu
,
[9]
is as follows:
“
In
assessment of damages for unlawful arrest and detention, it is
important to bear in mind that the primary purpose is not to enrich
the aggrieved party but to offer him or her some much-needed
solatium
for his or her injured feelings. It is therefore crucial that serious
attempts be made to ensure that damages awarded are commensurate
with
the injury inflicted. However, our courts should be astute to ensure
that the awards they make for such infractions reflect
the importance
of the right to personal liberty and the seriousness with which any
arbitrary deprivation of personal liberty is
viewed in our law.”
[31]
The plaintiff testified that they slept in a cold police cell, they
were offered dirty blankets that caused
their bodies to itch. Upon
their release the baby had flu and a rash. She had to buy medication
for the child. The experience undoubtedly
brought pain and
psychological torture to the child.
[32]
In the result the following order is made:
1.
The plaintiff claim for unlawful arrest and detention is dismissed.
2.
The plaintiff’s claim for unlawful detention in respect of her
minor child is upheld.
3.
The defendant is ordered to pay damages to the plaintiff in the
amount of R100 000.00
occasioned by the child’s unlawful
detention.
4.
The defendant is ordered to pay party and party costs of this action
on the Magistrates Court
scale.
S
MSIBI
ACTING
JUDGE OF THE HIGH COURT
MPUMALANGA
DIVISION MBOMBELA
Appearances
On
behalf of the plaintiff:
Adv
M S Ngomane
Instructed
by:
P
Mahlalela Attorneys
On
behalf of the defendant:
Adv S I Mashele
Instructed
by:
Office
of the State Attorney
[1]
Minister
of Safety and Security v Tyulu
[2009] ZASCA 55
;
2009 (5) SA 85
(SCA) para 21.
[2]
[2011]
ZAGPJHC 11;
[2011] 3 All SA 443
(GSJ) para 57.
[3]
1991
(1) SACR 669
(E) at 675D-F.
[4]
1986
(3) SA 568
(A) at 589E-F.
[5]
1986
(2) SA 805
(A) at 818G.
[6]
2011
(1) SACR 315 (SCA).
[7]
Ibid
para 39.
[8]
[2016]
ZACC 24
;
2016 (2) SACR 540
(CC) para 4.
[9]
2009(5) SA 85 (SCA) para 26.