REPUBLIC OF SOUTH AFRICA

SOUTH GAUTENG HIGH COURT, JOHANNESBURG

CASE NO:   10/43463
DATE:30/08/2012
REPORTABLE

In the matter between:

HENRY FOSTER	  Plaintiff

and

THE MINISTER OF SAFETY AND SECURITY	 Defendant 

______________________________________________________________ 

JUDGMENT
______________________________________________________________ 

[1]	This is an action by the plaintiff against the defendant for damages arising out of his wrongful arrest, detention and torture at the hands of policemen employed by the defendant.

The pleadings

[2]	The plaintiff claims the sum of R500,000.00 as a result of the aforementioned treatment that he received from the employees of the defendant and detailed that his arrest was unlawful because there was no reasonable ground to suspect him of the crime of hijacking.  The plaintiff further details the assault perpetrated by the policemen and states that he was suffocated, kicked, hit with fists and open hands and that handcuffs were applied excessively to him to the extent that his wrists were bruised.

[3]	The defendant admits having employed the police officers in question but either has no knowledge or denies the balance of the allegations by the plaintiff other than that he complied with the provisions of Section 57(2) of Act 68 of 1995, by giving the requisite notice before instituting this action.

The evidence

[4]	Having accepted the onus to begin and prove his case, the plaintiff testified in support of his claim and stated inter alia, that:-

4.1	having been born on 7 June 1951, he was 60 years old when he testified, married, had 9 children and 10 grandchildren;

4.2	on 15 July 2010, at 09h00 he was at work at his business, a scrapyard which traded under the name and style of M & D Auto Spares at 415 Kimberley Road, Nancefield, Eldorado Park, within the jurisdiction of this Court;

4.3	he had two employees in his business and they were both at work, his daughter Leonie and a young man whom he identified as Bheki Alfonso Solomons;

4.4	his daughter told him that there were people there to see him.  He noticed two cars and approximately six people.  The only person that he recognised was an Indian Captain from the South African Police Service;

4.5	he was asked whether he knew anything about a Toyota and he replied that he did not.  In response thereto, the policeman whom he later identified as being Bhayat said that if he does not want to talk, they would arrest him;

4.6	as a result of his lack of knowledge of the Toyota motor vehicle, he was arrested and taken to the police station.  He called his daughter and gave her the keys to the business before he was taken away;

4.7	he was transported initially to the Eldorado Park police station and after a brief sojourn there, taken to the Meadowlands police station.  He remained handcuffed throughout this ordeal;

4.8	at the Meadowlands police station, he was taken to an office and instructed to sit down.  He was then asked by a person identified as Malusi about the Toyota. He said he did not know anything about it;

4.9	two young men were brought into the room.  He vaguely recognised the one but not the other.  These two men told the police that the plaintiff was the person who had brought the car to them and that he had been driving a red Uno.  The plaintiff denied ever having had such a motor vehicle;

4.10	the plaintiff wanted to respond to these allegations, but was told to keep quiet by the police;

4.11	these two young men proceeded to implicate the plaintiff in the possession of a stolen motor vehicle and further stated that he had attempted to bail them out after their arrest.  They were then removed from the room;

4.12	“then all hell broke loose in that office”.  A plastic glove was placed over the plaintiff’s head and he was suffocated.  All of this occurred whilst he was still handcuffed and someone sat on his lap pushing him back.   He specifically identified Bhayat as the person who pulled the glove over his face and identified two other members, Maluleke and Motisi as having been present;

4.13	a Captain Nkosi then instructed the police officers to “work him” and referred to him as an “old dog that would not talk”.  This continued until he lost control of his bladder and wet himself;

4.14	he was informed that if he had something to say, he should stamp his foot down and he was continuously asked about the Toyota.  He denied having any knowledge of it, until he could not take the torture anymore.  He then stamped his foot down and stated that he had a Toyota at his scrap yard;

4.15	he was then taken back to the scrap yard, where he explained that he had previously had a white Toyota that had been cut into pieces.  The police then told him that they were looking for a grey Toyota;

4.16	he was then told that he was talking nonsense as it was not the car that they wanted so they took him back to the Eldorado Park police station, where the other two men were booked into the cells.  Thereafter he was taken back to the Meadowlands police station.  He was then booked into the cells;

4.17	at that stage, he was provided with a document that dealt with his rights in terms of the Constitution as a detainee, which formed part of the trial bundle and reflected that he had been detained for committing the offense of car hijacking at 12h25 on 15 July 2010;

4.18	he remained alone in that cell from then on Thursday 15 July 2010 until Sunday 18 July 2010, when the investigating officer came to see him, took his finger prints and informed him that he would be taken to Court the next day;

4.19	the investigating officer further told him that he had a lead in the case and had to leave, but would discuss the issue of bail with him the next day at Court;

4.20	from the time of his arrest, he was denied access to a telephone and had not been allowed to speak to his family or obtain an attorney to assist him;

4.21	on the Monday morning he was taken to the Protea Court, placed in a holding cell and detained there until approximately 16h00, when he was released and told to go home;

4.22	whilst in the cells, he saw one of the men who had falsely implicated him and he asked him why he had done so.  This person responded by saying that he had been under pressure to do so;

4.23	he felt humiliated and the humiliation was aggravated by the fact that a lady police officer had been present in the room when he was tortured and had wet himself;

4.24	he denied any involvement in any hijacking. 

[5]	Under cross-examination, it was put to him inter alia, that:-

5.1	Warrant Officer Malusi had asked him about a grey Toyota Conquest.  This he denied;

5.2	he had been fully informed of the hijacking of this grey Toyota Conquest.  This he also denied;

5.3	he had in fact told the police officers during the torturing process that he had a Toyota at his scrap yard.  This he conceded, but stated that he had merely done so because he could not take the torture anymore;

5.4	if it was not for the two other people who had implicated him, he would not have been arrested.  This he conceded;

5.5	the other two people were responsible for his arrest and they should have been sued.  He agreed with this but stated that the police had ill treated him;

5.6	prior to his arrest Warrant Officer Malusi had read his Constitutional rights to him.  This he denied;

5.7	the policemen would deny ever having suffocated him.  This he denied;

5.8	the police would say that they had not suffocated him, but he had in fact wet himself.  He denied this and stated that the only reason why he had wet himself was because they had suffocated him;

5.9	his signature on the Constitutional Notice indicated that he was aware of his rights.  To this he responded that he had only received this document when he was booked into the cells, and not prior thereto;

5.10	he had been informed that he had the right to obtain a legal representative.  To this he responded that he had never been so informed;

5.11	he had an opportunity to see his family and his daughter.  This he denied and stated that his family were not allowed to see him and did not know where he was;

5.12	he had not obtained a medical report to corroborate his alleged injuries.  This he conceded;

5.13	he did not know how the amount of R500,000.00 had been computed.  This he conceded;

5.14	the prosecutor declined to prosecute him because there was not enough evidence against him.  This he conceded, but stated that he had not been told so by the prosecutor, whom he did not see.

[6]	At a later stage, a Doctor Bhamjee was called to testify in support of the plaintiff’s case. He stated that the plaintiff had been assaulted because he had bruising around his wrists.  This was not challenged at all under cross examination.

[7]	The defendant then called Warrant Officer Ithumeleng Moalosi, a Warrant Officer in the South African Police Service with 21 years’ experience and the investigating officer in this matter to testify.  He stated inter alia, that:-

7.1	he had received a hijacking docket and interviewed the complainant, Francois van Zyl;

7.2	Mr van Zyl told him that he had seen the motor vehicle that had been involved in his hijacking, but could not identify the hijackers;

7.3	two suspects were subsequently arrested for driving a BMW which had been involved in the hijacking;

7.4	the plaintiff was arrested because he was pointed out by some of these suspects as being the person who had brought the hijacked Toyota to be repaired;

7.5	the plaintiff was found at his work premises, approached and placed under arrest;

7.6	he explained to the plaintiff what his Constitutional rights were and that he was entitled to a legal representative.  At that stage, he was in the presence of five other policemen as well as the two suspects who had already been arrested;

7.7	the plaintiff had been handcuffed and transported to the Meadowlands police station;

7.8	he was then taken to the office of Colonel Nkosi, who was his commander.  He was then questioned about the Toyota Conquest and interviewed.  The interview took place in the presence of Captain Bhayat, Warrant Officer Maluleke and Constable Masimolo;

7.9	he had conducted the questioning and remembered what he had asked the plaintiff.  The plaintiff constantly denied everything and stated that he did not even know the suspects who had identified him;

7.10	the plaintiff had denied knowing about a grey Toyota Conquest, but stated that he had previously had a white Toyota Conquest at his scrap yard.  

7.11 	they then proceeded to the scrap yard, inspected the vehicle that was white and thereafter returned to the Meadowlands police station, where the plaintiff was detained;

7.12	the plaintiff had been notified of his rights as appeared from the from that was signed and formed part of the trial bundle;

7.13	he denied arresting the plaintiff without notifying him of all of his rights at the scrap yard and further denied that the plaintiff had been tortured by suffocation;

7.14	the arrest had taken place on a Friday and the plaintiff was taken to Court on the Monday.  The matter was then withdrawn against him and he was released;

7.15	the plaintiff had been arrested because the suspects had indicated that the plaintiff had brought the vehicle to them.

[8]	Under cross-examination, inter alia the following emerged:-

8.1	a perusal of the docket indicated that there were no names and descriptions of the suspected hijackers.  This he admitted;

8.2	the hijacking had occurred at 23h00 on 18 June 2010.  The first suspect was arrested on 15 July 2010 at 11h00, but he could not remember whether he had in fact obtained a statement from this suspect implicating the plaintiff;

8.3	when shown a copy of the statement, he remembered having taken such a statement from the suspect;

8.4	he was then shown a copy of his statement that appeared as “A13” in the trial bundle.  This statement had been filed out of its chronological order and this was a mistake that he had made;

8.5	there was no mention of this statement “A13” in his investigation diary;

8.6	both suspects denied any involvement in the hijacking and made statements to this effect;

8.7	yet he arrested the plaintiff on 15 July 2010;

8.8	he conceded that 15 July 2010, was a Thursday, not a Friday;

8.9	nevertheless, because the arrest had taken place on a Thursday morning, he knew he was well within his rights and entitled to only take the plaintiff to Court on the following Monday morning;

8.10	on 15 July 2010, he did not have a sworn statement implicating the plaintiff in the hijacking;

8.11	he did not believe that he was obliged to obtain such a statement prior to his arrest of the plaintiff;

8.12	he did not agree that he was obliged to investigate matters before he arrested a person;

8.13	the previous suspects had deposed to warning statements in which they did not implicate the plaintiff. He had merely acted on information that he had obtained to the effect that the plaintiff had taken the vehicle to these other suspects;

8.14	he could not remember what the plaintiff’s response had been when he explained his constitutional rights to him;

8.15	he believed that the plaintiff had telephoned an attorney and that his daughter and employee had assisted him in doing so, as he remembered  receiving a call from an attorney on the Saturday requesting that the plaintiff be released on bail;

8.16	this election by the plaintiff to obtain an attorney had not been recorded in his warning statement;

8.17	he did not remember who this attorney was, but remembered that an attorney had spent some time talking to the plaintiff in the cells on the Monday at Court;

8.18	he could not explain why this had not been put to the plaintiff when he testified;

8.19	he could not explain why the plaintiff, who had persistently denied any involvement with a Toyota being hijacked, subsequently took the police to his business premises to point out a different coloured Toyota.  He nevertheless denied that the plaintiff had been tortured;

8.20	he denied that there was a female police officer in the room when the plaintiff was being interviewed;

8.21	an identity parade had been held whilst the plaintiff was in custody, but only the other two suspects had participated therein;

8.22	he denied that he had been obliged to release the plaintiff after he had not participated in the identity parade or been pointed out by any other persons who had been in the motor vehicle when it was hijacked;

8.23	he could not recall at what time the Senior Public Prosecutor had told him that the plaintiff should be released;

8.24	when he went to release the plaintiff from the cells, he found him arguing with his attorney;

8.25	he denied that this aspect was a recent fabrication.

[9]	When questioned by this Court, Warrant Officer Moalosi stated that the plaintiff was not a flight risk and could be trusted, yet he had incarcerated him.

[10]	The second witness called by the defendant was Captain Mohamed Bhayat, who had also been involved in the arrest of the plaintiff and stated inter alia, as follows:-

10.1	the suspects who had been arrested earlier said that they could point out the plaintiff and referred to him as “Madala”;

10.2	they proceeded to the plaintiff’s premises, where he was pointed out as being the person that had been referred to as Madala;

10.3	having introduced themselves, they asked the plaintiff about the vehicle that he had taken for repairs and he denied having done so.  He was then placed under arrest and warned of his rights before he was taken to the Meadowlands police station;

10.4	he denied that the plaintiff had been tortured at the Meadowlands police station;

10.5	the plaintiff has stated that he wanted to take them to where the Conquest was, but this had not occurred during any torture of the plaintiff;

10.6	the plaintiff then took them to the scrapyard, pointed out a white Toyota Conquest but was informed that this was the incorrect motor vehicle; 

10.7	even if the plaintiff had wet himself, he had not been tortured during the interview.

[11]	Under cross-examination, the following emerged:-

11.1	even though when the plaintiff took them back to see the Toyota, this constituted a pointing out, they did not keep proper notes of the route and distance travelled;

11.2	he was unaware of what the plaintiff had stated in his warning statement as he had not seen it;

11.3	if the plaintiff had denied everything in a warning statement, he could not explain or comment on why he thereafter changed his mind and pointed out this other Toyota; 

11.4	he would have expected the investigating officer to put this change of mind in a statement, but could not comment as to why it had not happened;

11.5	when he was told of his constitutional rights, the plaintiff merely nodded his head;

11.6	he had not heard any mention of a lawyer appearing for the plaintiff;

11.7	he could not remember going to the Eldorado Park police station;

11.8	he was of the view that he could question the suspect at any time;

11.9	a female data-capturer was present in the room when the plaintiff was questioned;

11.10	in his view, a normal interview took place;

11.11	when the other suspects’ version was put to the plaintiff, he said that he had a Conquest at his garage and would show it to them;

11.12	he remembered the plaintiff being handcuffed when he was arrested but could not remember what his position was in the office during the interview;

11.13	he had remained in the room throughout the interview;

11.14	he had never had access to the contents of the docket in this matter;

11.15	on the other suspects’ version, the plaintiff had not been implicated in a hijacking;

11.16	there was no reasonable suspicion that the plaintiff had been involved in a car hijacking;

11.17	he thought it would be probable that the investigating officer would obtain a sworn statement implicating the plaintiff before he arrested him, but this would depend on the circumstances of each case;

11.18	he took it that the motor vehicle that had been taken for repairs by the plaintiff was the one that had been hijacked. 

[12]	In response to questions by this Court, he agreed that by virtue of the plaintiff having been excluded from the identity parade, it seemed that he could not have been the hijacker of the vehicle in question.

Argument

[13]	During argument, the plaintiff’s counsel amended his particulars of claim to include a prayer for punitive costs on the basis that the defence put forward by the defendant was vexatious.  The defendant’s counsel opposed this, but conceded that in any event this Court had a discretion in this regard.

[14]	In response to a query by this Court, the plaintiff’s counsel conceded that the plaintiff was not entitled to damages in the vicinity of R500,000.00.  

[15]	 The plaintiff however relied upon the decision of Seymour v Minister  of Safety & Security 2006 (5) SA 495 (W), a decision of Willis J in this Court, in which an award of R500,000.00 had been made, but immediately pointed out, as was his duty, that this award had been reduced on appeal to R90,000.00 in the reported decision of  Minister of Safety & Security v Seymour  2006 (6) SA 320 (SCA). 

[16]	Of particular significance in the latter decision, at  paragraph 20 on p326, Nugent JA, held as follows:-

“[20]  Money can never be more than accrued solatium for the deprivation of what, in truth, can never be restored and there is no empirical measure for the loss.  The awards I have referred to reflect no discernible pattern other than that our courts are not extravagant in compensating the loss.  It needs also to be kept in mind when making such awards that there are many legitimate calls upon the public purse to ensure that other rights that are no less important also receive protection.”

[17]	 Advocate Brown however referred this Court to Van Rensburg v City of Johannesburg 2009 (1) SACR 32 (W), in which Horwitz AJ followed the ratio of Nugent JA and held at page 41j to page 42a that:  “Public officials must be made aware that the courts will not tolerate high handed (not just neglectful) behaviour which results in the people that they serve suffering injury at their hand”, in making an award of R75,000.00 in respect of an unlawful arrest and detention by traffic officers.

[18]	 Advocate Brown further relied upon April v Minister of Safety and Security 2009 (2) SACR 1 (SECLD), Mvu v Minister of Safety & Security & Another 2009 (2) SACR 291 (GSJ), another decision of Willis J, in which he stressed the importance of judicial precedent and that he was bound to follow the reasoning of the Supreme Court of Appeal in the Seymour appeal,  Masisi v Minister of Safety & Security  2011 (2) SACR 262 (GNP), Erasmus v MEC for Transport, Eastern Cape 2011 (2) SACR 367 (ECM) and Greenberg v Gouws 2011 (2) SACR 389 (SG), in which the damages awarded by the Courts for unlawful arrest and detention, ranged between R65 000,00 to R110,000.00 depending upon the length of incarceration and the humiliation suffered by the claimant.  

[19]	The final submission made by Advocate Brown in this regard was that by virtue of the humiliation suffered by the plaintiff and the embarrassment caused by him having been tortured and urinating in his clothing in the presence of a female data-capturer, which conduct on the part of the defendant’s employees, he described as being “callous”, at least R200,000.00 ought to be awarded in this matter.

[20]	 Additionally, as in the decisions of Mvu (above) and Seria v Minister of Safety & Security & Others 2005 (5) SA 130 (C), the Court was urged to express its disapproval of the callous conduct meted out against the plaintiff by the employees of the defendant, by making an appropriate costs order.  The request being that I order the defendant to pay costs on the scale of attorney and client.  

[21]	In answer thereto, the defendant’s counsel argued that it was common cause that a hijacking had taken place, the plaintiff had been identified by at least one other suspect and subsequently released when the prosecutor felt that there was insufficient evidence to prosecute the plaintiff.  In the circumstances, the submission was made that there had not been an arrest without reasonable grounds to do so.  Furthermore, the defendant’s witnesses had denied ever torturing or assaulting the plaintiff.  Consequently the claim should be dismissed with costs as the arrest had been lawful.  However, if this Court was inclined to make an award in favour of the plaintiff, such an award should be in the region of R150,000.00.  Additionally, if this Court was inclined to make the defendant pay the costs of this matter, they should be on the normal scale of party to party.

Findings

[22]	The procedure that the defendant’s witnesses, as experienced police officers, claim to have followed in the arrest, detention and interrogation of the plaintiff is nothing less than disgraceful and deplorable.  

[23]	A careful perusal of the docket that had been handed in as the trial bundle reveals that the defendant’s witnesses did not investigate this matter.  On the statements in the docket, there was no basis in law or fact to arrest the plaintiff.  

[24]	Furthermore, even if the plaintiff was regarded as a possible suspect in that matter, he did not constitute a flight risk and should not have been arrested and detained from the Thursday until the following Monday before appearing in a Court.  

[25]	Such conduct by the defendant’s employees constituted an abuse of the process and more particularly section 50 of the Criminal Procedure Act, No 51 of 1977 which affords investigating officers 48 hours within which to investigate a matter before a suspect is to be brought to Court for the consideration of a bail application unless the investigating officers are prepared to release the person on police bail in schedule 1 offences.  In fact, Section 50(1)(b) expressly provides that: “A person who is in detention … shall, as soon as reasonably possible, be informed of his or her right to institute bail proceedings”.

[26]	 Having steadfastly denied that he had any knowledge of a Toyota motor vehicle that had been hijacked, be it a Toyota Conquest or any other model, and be it grey, white or any other colour, no reasonable or logical explanation exists on the facts of this matter for the plaintiff’s volte face and subsequent admission that he had a Toyota motor vehicle at his scrapyard, other than that he was tortured.  Additionally, no possible explanation has been forwarded as to how the plaintiff’s wrists were injured, other than that he was unnecessarily handcuffed and manhandled by the defendant’s employees.  Similarly, there is no other explanation for his having at an advanced stage in the questioning process, lost control of his bladder and urinated in his trousers.

[27]	This Court cannot condone the treatment and torture of a person who is not only entitled to be presumed innocent, but on the facts of this matter, was shown to be innocent of the allegations levelled against him.  

Warning statements

[28]	Express provision is made in every warning statement in this Court’s jurisdiction for the completion of a warning statement each and every time that a suspect is interviewed.  

[29]	The constitutional protection provided for in terms of section 35 of the Constitution to arrestees is embodied in this principle.  There is no justification for any interview with a suspect who has been arrested or called in for questioning to take place without a warning statement being completed.

[30]	The very term “warning statement” indicates that the person is a suspect and has been warned of his rights and in particular, his right to remain silent, before any such interview may take place.  

[31]	It serves no purpose to attempt to recognise that an arrestee is not obliged to say anything, make any admissions or answer any questions unless he is specifically forewarned of these rights and signs in the warning statement that he has been so forewarned prior to any interview or interrogation taking place. 

[32]	A practise seems to have developed, as was reflected in this case, that arrestees are merely required to complete a warning statement as part of the paperwork before they are taken to Court.  This is not the purpose of a warning statement.  In fact, such a procedure pays mere lip service to the very purpose of such a document.  Its undoubted purpose is to ensure that prior to answering any questions or making any statement, the arrestee is informed of his rights and acknowledges in writing that he has been so informed.  

[33]	If the arrestee, having been forewarned of these rights, and having signed an acknowledgement thereof, thereafter proceeds to answer questions, make admissions or make a statement, they may be utilised against him.  In the absence of such an acknowledgement, any admission made by an arrestee is not admissible.

[34]	It was startling to hear that both of the defendant’s witnesses, who were experienced policemen, believed that they were entitled to question a suspect or arrestee at any time that they wished to do so, without being compelled to complete a warning statement.  

[35]	In assessing the evidence presented before me, I have no hesitation in holding that the arrest and subsequent detention of the plaintiff was without justification and unlawful.  Additionally, I accepted the plaintiff’s version that he was tortured in the presence of the female data-capturer, which resulted in him losing control of his bladder and urinating in his trousers.  The defendant’s witnesses, two experienced policemen, materially contradicted one another in this regard and more particularly whether such a female person was present in the room or not.  It is highly improbable that the plaintiff would have fabricated his version in this regard.  It goes without saying that the defendant’s employees were not entitled to torture, intimidate or threaten the plaintiff.

[36]	Not only by virtue of our more recent constitutionally enlightened approach to such issues, but even prior thereto, our Courts were called upon to protect victims of such abuse. Unfortunately, despite this, the abuse meted out by members of the South African Police Service within the course and scope of their employment by the defendant became notorious and certain units of the police force became more feared than others and practices such as tubing and administering electric shocks were not only condoned by our Courts, but recognised to a certain extent in our Criminal Procedure Act, in which a distinction is drawn between admissions, pointings out and confessions that are freely and voluntarily made and those that are not. 

[37]	This sordid and embarrassing history of abuse is what, in my view, led to the introduction of a Constitutionally enlightened jurisprudential approach to the protection of arrested, detained and accused persons, which is detailed in Section 35 of our Constitution.

[38]	These Constitutionally entrenched fundamental rights are embodied in at least two documents that need to be completed in respect of every accused, arrested and detained person.  These are: 

38.1	the SAPS 14A Notice of Rights in Terms of the Constitution, which is divided into the following six sections: -

(1)	in the first section, the reason for the person’s detention is recorded;

(2)	in the second section, the person is notified of his rights as a detained person as follows: -

 “As a person who is detained you have the following rights:

(a)	you have the right to consult with a legal practitioner of your choice or, should you so prefer, to apply to the Legal Aid Board to be provided by the State with the services of a legal practitioner;

(b)	you have the right to challenge the lawfulness of your detention in person before a court of law and to be released if such detention is unlawful;

(c)	you have the right to be detained under conditions consonant with human dignity, which shall include at least the provision of adequate accommodation, nutrition, reading material and medical treatment at state expense; and

(d)	you have the right to be given the opportunity to communicate with, and be visited by, your spouse or partner, next of kin,  religious counsellor and a medical practitioner of your choice.

(3)	The third section notifies the person of his/her rights as an arrested person as follows: 

(a)	you have the right to remain silent and anything you say may be recorded and may be used as evidence against you;

(b)	you are not compelled to make a confession or admission which could be used in evidence against you;

(c)	you  have the right to be brought before a court as soon as reasonably possibly  but not later than 48 hours after your arrest or the end of the first court day after the expiry of the 48 hours, if the 48 hours expire outside ordinary court hours on the day which is not an ordinary court day;

(d)	you have the right, at the first court appearance after your arrest, to be informed of the reason for your continued detention, or to be released; and

(e)	you have the right to be released from detention if the interests of justice permit, subject to reasonable conditions.”  

(4)	In the fourth section, the person is informed that he/she can exercise all the abovementioned rights at any stage during his/her detention.   

(5)	The fifth section is headed Certificate By Detainee and the detainee is required to identify himself and signs this document in this section as confirmation of the fact that he/she has been informed of these rights.

(6)	In the sixth section, provision is made for:

(a)	certification by a third person as a witness if the detainee refuses to sign the documents to confirm that the detainee was told of his/her rights in terms of the Constitution but refuses to sign the certificate;
38.2	The Warning Statement which is headed “Statement Regarding Interview With Suspect”.  It is referred to as a SAPS 3M document and embodies twelve pages.  On the cover and on the very first page, under the insignia of the South African Police Service, the following appears:

“STATEMENT REGARDING INTERVIEW WITH SUSPECT

This form must be completed every time a suspect is questioned, irrespective of whether the suspect is in detention after an arrest or not.  Where any space provided on the form is insufficient, continue on a folio and attach the folio to that page.  Folios must be signed by the suspect, interpreter, deponent and commissioner of oaths.”

Thereafter, the interviewing police officer is required to record that he has informed the suspect of the allegations that he is investigating against him/her to ensure that he/she understands these allegations. There are numerous introductory paragraphs and forms that require completion, the suspect is entitled to make a statement, if he or she wishes to do so, whereafter both the suspect and the member of the South African Police Service are required to sign the document.  All of the Constitutional safeguards provided for in respect of arrested, accused and detained persons are contained herein and the document sets out each and every step that must be followed in the completion thereof.

[39]	There is no basis in law or fact to conduct any type of an interview or interrogation without completing such a document.  Any attempt to do so would render the arrest and detention of the suspect not only unconstitutional, but unlawful. I am fortified in my view that the arrest and subsequent detention of the plaintiff in this matter was not only unconstitutional but unlawful because the defendant’s witnesses testified under oath that they were of the view that they were entitled to interview and interrogate the plaintiff without having completed such a document.  This can never be the case.  The express terms of the document make it abundantly clear that when a suspect signs them, he/she does so in order to acknowledge that he/she has been notified of his/her rights and understands them.

[40]	The practice whereby these documents are completed, merely to satisfy the prosecutor that the suspect may now be taken to Court is to be frowned upon and not condoned by this Court.  It seems that the Notice in Terms of the Constitution is completed before the person is accepted into the cells, but merely as a formality and for no other purpose.  The Warning Statement is also completed merely as a formality that is required for administrative purposes or as part of the paper work, but not for the intended purpose.  As previously stated, mere lip service is paid to the rights embodied in the Constitution as detailed in these documents.  Their significance in determining whether an arrest and subsequent detention are lawful or not can never be over emphasised.  

Quantum of damages

[41]	 I was referred to the following decisions in argument: Rudolph and Others v Minister of Safety and Security and Another 2009 (2) SACR 271(SCA); Gellman v Minister of Safety and Security 2008 (1) SACR 446 (W); Olivier v Minister of Safety and Security and Another 2008 (2) SACR 387 (W) and Masisi v Minister of Safety and Security 2011 (2) SACR 262 (GNP),  as more recent cases that cover unlawful arrests in which the amounts awarded ranged between R50,000.00 and R150,000.00. 

[42]	 I have also had regard to the more recent decision of Botha v Minister of Safety and Security and Others, January v Minister of Safety and Security and Others 2012 (1) SACR 305 (ECP) where  Tshiki J, held at paragraph 31, as follows:-

“[31]	It follows from what I have stated above that our constitutional provisions referred to above make it obligatory for police officers to first establish the legal justification for the further detention of a person so as to relay such information to the public prosecutor and the latter would then, after applying his mind to the matter, be in an informed position whether or not to apply for the further detention of the person in custody.  In my view, and in practice, it is the police official investigating the case who should be in a position to, and must, inform the prosecutor about the strength or otherwise of his or her case.  Failure by the police officer to apply his mind in the manner suggested supra, could result in the further detention being contrary to the constitutional provisions and liable to be declared to be unlawful.” 

[43]	 Even more recently, Southwood J, in the unreported decision of Steven Weinberg v The National Commissioner of Safety & Security, Victor Booyens and Esias Johannes Roux under case number 22072/06 in the North Gauteng High Court, Pretoria, an action for damages for unlawful arrest and detention arising out of an arrest on 27 May 2005 and release that evening, had regard to the more recent decisions and awarded the amount of R75,000.00 to properly compensate the plaintiff for his injuria and the further amount of R47,942.15 in respect of the costs incurred to secure bail and his acquittal as well as his costs on the scale as between attorney and client because of the manner in which the defendants had conducted the litigation in that matter.

Conclusion

[44]	 As Meer J, held in Seria v Minister of Safety and Security and Others 2005 (5) SA 130 (C), p151B:  “Courts, I believe are tasked with the duty of upholding the rights to liberty, safety and dignity of the individual and in so doing have a responsibility to accord an appropriate and proper value thereto, especially in the light of the extent to which these rights were devalued, indeed negated, in the brutal past of this country.”

[45]	Taking account of all the circumstances pertaining to the plaintiff’s arrest, torture, interrogation, depravation of his constitutional right as well as the awards made in comparable cases, and bearing in mind that no two cases are ever based upon identical facts, I am of the view that a fair and proper award for the conduct meted out to the plaintiff by the defendant’s employees would be R200,000.00.

[46]	By virtue of the findings that I have made in relation to the manner in which the plaintiff was deprived of his constitutional rights, I am of the view that he ought not to be out of pocket by virtue of his pursuit of justice, to which I have found he was entitled.  I am therefore of the view that he ought to be awarded the costs of this action on the scale as between attorney and client.

[47]	I make the following order:-

1.	The Defendant is ordered to pay to the plaintiff the sum of R200,000.00 together with interest thereon from the date of this Order, calculated at the rate of 15.5% per annum to date of payment;

2.	The defendant is further ordered to pay to the plaintiff the costs of this action on the scale as between attorney and client.

 

       _____________________________________
L M HODES S.C
				       ACTING JUDGE OF THE SOUTH GAUTENG
					     HIGH COURT, JOHANNESBURG