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IN THE HIGH COURT OF SOUTH AFRICA
NORTH WEST DIVISION - MAHIKENG
CASE NO: 20/2023
In the matter between:
FELICIA LONGMAN PLAINTIFF
and
MINISTER OF POLICE DEFENDANT
DATE JUDGMENT RESERVED 29 NOVEMBER 2024
DATE OF JUDGMENT 15 JANUARY 2025
This judgment was handed down electronically by circulation to the
parties' representatives via email. The date and time for hand-down is
deemed to be 15 January 2025 at 1 0h00.
ORDER
(i) The defendant is ordered to pay the plaintiff the amou nt of R
40.000.00 together with interest at the prescribed rate from
date of service of summons to date of payment.
(ii) The defendant shall pay the costs of suit on a party and party
scale as prescribed in the High Court tariff.
JUDGMENT
REDDY J
Introduction
[1] The plaintiff instituted a delictual action against the defendant, the
Minister of Police, pursuant to her warrantless arrest, for her
unlawful arrest and detention from 12 May 2022 (at approximately
1 0h00) to 13 May 2022(at approximately 11 h00). The action was
defended. The defendant pleaded that the arrest of the plaintiff was
justified in terms of the provisions of section 40(1 )(b) of the Criminal
Procedure Act 51 of 1977, ("the CPA "). There was no separation of
liability and quantum w ithin the context of Rule 33(4) of the Uniform
Rules of Court, ("the Rules"). Consequentially, the action
encompassing !ability and quantum were determined conjunctively.
The defendant's case
[2] On 12 May 2022, Sergeant Jacobs, ("Jacobs"), received Vryburg
docket bearing CAS 57/05/2022. The docket included the statement
of the complainant, Catherine Tabe, ("Tabe") a medico legal report
and the investigation diary, ("the SAPS 6"). Jacobs perused same.
Jacobs contended that certain aspects of the Tabe's statement
warranted further investigation to determine "really what happened."
[3] To achieve this purpose, Jacobs proceeded to Tabe's premises where
further investigation was conducted. Significantly, no additional
statement was deposed to by Tabe. The relevance of same will
become apparent. Tabe then pointed out the suspects which included
the plaintiff. After introducing himself to the suspects (including the
plaintiff), Jacobs executed the arrest of all suspects in the presence
of female Sergeant English. The three accused were arrested on
allegations of kidnapping and assault with intent to do grievous bodily
harm. Jacobs then read the rights of the accused in terms of the
section 35 of the Constitution. The accused were then transported to
the SAPS at Vryburg.
[4] The suspects were detained in the holding cells. According to the cell
commander , the female cells were inspected and found to be in
humane state to serve the purposes of detention without starving off
the rights of detainees.
The plaintiff's case
[5] The plaintiff confirms her arrest and that of her two cohorts. It is so
that all three were transported to the SAPS Vryburg, where the usual
processing took place. This included the taking of fingerprints and
culminated with the constitutional rights of all being explained.
Thereafter, they were escorted to the holding cells. Whilst the
holding cells was not occupied, it was not fit for humane detention.
[6] The conditions of detention can be succinctly set out as follows. A
terrible odour permeated the cell which emanated from a leaking
latrine, which flowed onto the cell floor. When the latrine was to be
used, there was no privacy. Additionally, the cell was cold and there
was an absence of hot water. The plaintiff was given a blanket with
no sponge. Furthermore, the shower was not working.
Legal principles
[7] The defendant admitted the arrest and detention. Consequently, the
defendant bore the onus of proof. This then required of the
defendant to justify the lawfulness of the arrest and the subsequent
detention of the plaintiff on a balance of probabilities. This much was
conceded to by counsel for the defendant. This concession wa s
correctly made and in accordance with the principles enunciated in
Minister of Law and Order and Others v Hurley and Another [1986]
SA 568[A] where the following was said:
"An arrest constitutes an interference with the liberty of the individual
concerned, and it therefore seem s 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."
[8] In JE Mah/angu and Another v Minister of Police 2021 ZACC 10 at
paragraph 32 this position was reiterated as follows:
"It follows that in a claim based on the interference with the constitutional right
not to be deprived of one's physical liberty, all that the plaintiff has to establish
is that an interference has occurred.' Once this has been established the
deprivation is unlawful and the defendant bears the onus to prove that there
was a justification for interference."
[9] A good point of departure would be to examine the purport of the
empowering provision namely, section 40[1] [b] of the CPA as
pleaded by the defendant. It reads as follows:
[1] A peace officer may without warrant arrest any person-
[a] .......
[b] whom he reasonably suspects of having committed an offence referred to in
Schedule 1, other than the offence of escaping from lawful custody.'
[1 0] In Minister of Safety and Security v Sekhoto and Another [201 0]
ZASCA 141, [2011] 2 All SA 157[SCA], 2011[5] SA 367[SCA] at
paragraph 6 the SCA said the following in respect of the
jurisdictional requirements of the section 40[1 ][b] of the CPA:
"As was held in Duncan v Minister of Law and Order, the jurisdictional facts for
a defence are that [i] the arrestor must be a peace officer; [ii] the arrestor must
entertain the suspicion must be that the suspect[arrestee] committed an offence
referred to in schedule 1; and [iv] the suspicion must rest on reasonable
grounds.'
Discussion
[11] The warrantless arrest of the plaintiff according to Jacobs was
founded on two statements that were contained in the docket. The
first of Tabe and the medico legal report.
[12] The evidence of Jacobs was unsatisfactory in material aspects. The
statement of Tabe given its broad sweeping allegations and
ambiguity should have necessitated further investigation prior to the
arrest of the plaintiff. The contention of Jacobs that within the
context of criminal process further investigation undoubtedly can
continue is unquestionably. The jurisdictional requirements that
govern an arrest are markedly different from the investigative
process that may precede and continue post the execution of an
arrest. In the circumstances of this case, the arrest of the plaintiff
was to be founded on statutory delineated jurisdictional grounds. In
this regard, the failure of Jacobs to have recorded a supplementary
affidavit from Tabe is telling. More peculiarly, Jacobs did not find an
additional affidavit explicating these events. See: Minister of Safety
& Security v Sekhoto 2011 (1) SACR 315 at page 327, para 29
[13] It is a hallow principle of our law that the jurisdictional requirements
relied on by the section 40( 1 )(b) of the CPA must be shown to exist
at the time Jacobs executed the arrest on the plaintiff. Ex post facto
considerations cannot be applied to justify the arrest retrospectively.
[14] It is common cause that Jacobs is a peace officer in the employ of
the defendant. Further, it is indisputable that assault with intent to
do grievous bodily harm and kidnapping are offences cited in
Schedule 1 of the CPA .
[15] On the conspectus of the evidence that was before Jacobs, Jacobs
could not have reasonably suspected that the plaintiff to have
committed an offence referred to in Schedule 1. This was a fissure
in the case for the defendant. The statement of Tabe at best was
vague. It failed to delineate essential details of the alleged
perpetrators. The repetitive use of the word "they" was woefully
inadequate to have inferred alleged unlawful on the part of all the
suspects.
[16] Moreover, as can be gleamed from the statement the details that
surrounded the alleged commission of these offences, are not
described with sufficient particularity. Simply put, the roles that were
played by each of the suspects are not described. Notably, in the
Tabe's report to the examining medical examiner, she stated that
whilst walking in the street she was attacked by two women . Jacobs
effected an arrest on three women .
[17] Jacobs attempted to reinforce his decision to arrest the plaintiff by
referring to certain conversations that he may or may not have had
with the plaintiff. Extra curial statements with the plaintiff as then
accused with regards her presence or absence at the crime scene
is generally inadmissible. Even if these statements were admissible
and accurate it is peculiar that the plaintiff's exculpatory statements
denying any involvement in any criminal allegations were not
afforded due weight. Peace officers who act within the purview of
section 40[1][b] of the CPA should investigate exculpatory
explanations by a suspect before they can form a suspicion. See:
Louw and Another v Minister of Safety and Security and Others
2006 [2] SACR 178 [T at 184, Liebenberg v Minister of Safety and
Security 2009, ZAGPPHC 88]. To this end, when the plaintiff
attempted to proffer an explanation, she was dismissed by Jacobs.
[18] When an arresting officer has a suspicion, investigative steps should
be pursued to determine the reasonableness of the suspicion. [R v
Heerden 1958 [3] SA 150 71.
[19] In Mabona v Minister of Justice 1988 [2] SA 654 SEC the following
was stated as regards suspicion:
'the reasonable man will therefore analyse and assess the quality of information
at his disposal critically and will not accept it lightly or without checking it where
it can be checked. It is only after an examination of this kind that he will allow
himself to entertain a suspicion that will justify the arrest. This is not to say that
the information at his disposal must be of a sufficiently high quality and cogency
to engender in him a conviction that the suspect is in fact guilty. The section
requires suspicion not certainty. However , the suspicion must be based on solid
grounds.' See: Brits v Minister of Police and Another (756/2020)
[2021] ZASCA 161 (23 November 2021).
[20] On application of the law to the facts it could not be found Jacobs
had a suspicion of any crime been committed based on the evidence
at his disposal at the time the plaintiff was arrested. On the
conspectus of the evidence, there existed no suspicion that the
plaintiff committed an offence referred to in Schedule 1 of the CPA.
The arrest of the plaintiff in the absence of a suspicion axiomatically
renders the arrest unlawful. That signals the death knell for the case
for the defendant as the jurisdictional factors set out in section
40[1 ][b] of the CPA are symbiotic in nature.
Quantum
[21] In Visser & Potgieter, Law of Damages Visser & Potgieter, Law of
Damages, 3ed Pages 545 - 548, the following factors are listed that
can play a role in the assessment of damages :
"In deprivation of liberty the amount of satisfaction is in the discretion of the
court and calculated ex aequo et bona. Factors which can play a role are the
circumstances under which the deprivation of liberty took place; the presence
or absence of improper motive or 'malice' on the part of the defendant; the harsh
conduct of the defendants; the duration and nature (e.g. solitary confinement
or humiliating nature) of the deprivation of liberty; the status, standing, age,
health and disability of the plaintiff; the extent of the publicity given to the
deprivation of liberty; the presence or absence of an apology or satisfactory
explanation of the events by the defendant; awards in previous comparable
cases; the fact that in addition to physical freedom, other personality interests
such as honour and good name as well as constitutionally protected
fundamental rights have been infringed; the high value of the right to physical
liberty; the effects of inflation; the fact that the plaintiff contributed to his or her
misfortune; the effect an award may have on the public purse; and, according
to some , the view that the actio iniuriarum also has a punitive function".
[22] There is no underscoring, that each case will be considered on its
own unique particularities. The conditions in which the plaintiff was
detained have been alluded to. It needs no regurgitation.
[23] In the Minister of Safety and Security v Tyu/u Minister of
Safety (327/08) [2009] ZASCA 55 (27 May 2009) Bosielo JA
postulated on issues a court should take into consideration when
assessing what would be an appropriate amount of damages in
matters of this nature as follows:
"In the assessment of damages for unlawful arrest and detention, it is important
to bear in mind that the primary purpose is not 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 the damages
awarded are commensurate with the injury inflicted. However, our courts should
be astute to ensure that the awards they made 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. I readily concede
that it is impossible to determine an award of damages for this kind of injuria
with any kind of mathematical accuracy. Although it is always helpful to have
regard to awards made in previous cases to serve as a guide, such an
approach if slavishly followed can prove to be treacherous. The correct
approach is to have regard to all of the facts of the particular case and to
determine the quantum of damage on such facts (Minister of Security and
Seymour 2006 (6) SA 320 (SCA) at para 17; Rudolph and Others v Minister of
Safety and Security and Another 2009 (5) SA 94 (SCA) [2009] ZASCA
39 paras 26-29)."
[24] Paramount in the exercise of a court's discretion judicial discretion
is balance. Regarding balance Holmes J (as he then was) stated
in Pitt v Economic Insurance Company Limited 1957 (3) 284 (D) at
287E that:
"The court must take care to see that its award is fair to both sides -it must give
just compensation to the plaintiff, but it must not pour out largesse from the horn
of plenty at the defendant's expense." See : De Jongh v Du Pisani
N . 0. 2005 (5) SA 547 (SCA) para 60.
[25] In terms of section 12(1) of the Constitution, everyone has the right
to freedom and security of person. The right to freedom and security
is further sub classified in section 12(1) (a) -(e). There is no
underscoring that freedom is a precious right that must be jealously
guarded. See : Thandani v Minister of Law and Order 1991 [1] SA
702 [E] at 707, Masisi v Minister of Safety and Security 2011 [2]
SACR . In O/gar v Minister of Safety and Security, 2008 JDR 1582
(E) at paragraph 16, Jones J observed that a just award of damages
should express the importance of the constitutional right to
individual freedom. At the same time, the award should properly
consider the facts of the case, the personal circumstances of the
victim, and the nature, extent, and degree of the affront to his or her
dignity and sense of personal worth. See : Motladile v Minister of
Police (414/2022) [2023] ZASCA 94; 2023 (2) SACR 274 (SCA) (12
June 2023) at paragraph 22, Masiteng v Minister of Police
(A139/2022) [2023] ZAFSHC 175 (12 May 2023) at paragraph 13.
[26] Viewing the facts of the case, as well as recent awards made by our
courts in comparable cases and the steady decline in the value of
money , I believe that justice would be done were I to award the
plaintiff an amount of R40 000.00, (forty thousand rand).
Costs
[27] The plaintiff should not be rendered out of pocket due to pursuing
this matter, the normal rule on the issue of costs should apply.
Although the quantum falls within the jurisdiction of the Magistrate's
Court, the plaintiff was , in my view, justified in seeking redress in the
High Court. It is important that our courts accord to the deprivation
of a person's liberty when determining the scale on which to award
costs. In De Klerk v Minister of Police [2018] ZASCA 45; [2018] 2 All
SA 597(SCA); [2018] (2) SACR 28(SCA) paras 18 & 55, which also
concerned an unlawful arrest and detention, the Supreme Court
Appeal contended that although the total quantum awarded [
R30 000] is far below the jurisdiction of the High court, the appellant
was justified in approaching the high court because the matter
concerned the unlawful deprivation of his liberty. See : Motladile v
Minister of Police (414/2022) [2023] ZASCA 94; 2023 (2) SACR
274 (SCA) (12 June 2023) at para 26. Accordingly, I will award
costs on the High Court scale.
Order
[28] I accordingly make the following order:
(i) The defendant is ordered to pay the plaintiff the amount of R
40.000.00 together with interest at the prescribed rate from date
of service of summons to date of payment.
(ii) The defendant shall pay the costs of suit on a party and party
scale as prescribed in the High Court tariff.
E OF THE HIGH COURT OF
SOUTH AFR1CA ,NORTH WEST DIVISION,
MAHIKENG
APPEARANCES
Date of Hearing:
Date written heads
submitted by plaintiff:
Date written heads
submitted by defendant:
Date of Judgment:
Counsel for Plaintiff:
Attorney for Applicant:
Counsel for Defendant:
Attorneys for Defendant
05 November 2024
28 November 2024
28 November 2024
15 January 2025
Adv D . Smith
Nienaber & Wissing Attorneys
10 Tillard Street
Mahikeng
Adv Lehabe
State Attorneys
Cnr Sekame Road
1 st Floor, East Gallery
Megacity Complex
Mmabatho