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REPORTABLE

SOUTH GAUTENG HIGH COURT

JOHANNESBURG

CASE NO: 14013/2010

DATE:10/10/2012

In the matter between:

NICOLAAS GEORGE VAN DER WESTHUIZEN...............................................Plaintiff

and

MINISTER OF SAFETY AND SECURITY...........................................................First Defendant

INSPECTOR M D KUTUANE................................................................................Second Defendant

J U D G M E N T

KGOMO, J:

INTRODUCTION

[1] The plaintiff instituted an action against the two defendants for damages for wrongful or unlawful arrest and detention in his first claim and defamation or the uttering of defamatory statements in respect of the second claim. He is claiming the sum of R500 000,00 in respect of the first claim and R100 000,00 in respect of the second claim.

[2] In respect of the first claim the allegations are that the second defendant together with other employees of the first defendant wrongfully and unlawfully arrested the plaintiff at or near Helena Lochner Street in Vanderbijlpark on 29 November 2009 despite there being proof or proof having been shown to them by the plaintiff that he was not the person they (the police) were looking for in respect of a fraud charge being investigated in Klerksdorp, namely, Eugene Viljoen. It is further alleged that the defendants and/or their employees wrongfully and without just or reasonable cause locked up the plaintiff in the police cells from 29 November 2009 until 30 November 2009 when he was released without appearing in court.

[3] In respect of the second claim the allegations are that upon or about the same date, i.e. 29 November 2009, and at or near Vanderbijlpark Police Station the second defendant defamed the plaintiff or uttered a statement defamatory to the plaintiff in front of his wife and two minor children with an intent to humiliate and defame him.

[4] It is the plaintiff’s case that he was arrested wrongfully by police officials who are employees of the first defendant in the face of irrefutable proof that he was not the Eugene Viljoen whom the Klerksdorp Police were looking for and that worse still, this was done without a warrant which it later emerged was all the time available and in possession of the defendants and/or their employees or colleagues of the employees.

[5] The plaintiff further contends that his incarceration in the police cells was ordered and effected by the second defendant in the face of all necessary evidence that he was not the person he and/or the police were looking for, thus the detention having been malicious and for ulterior motives.

[6] The plaintiff contends that his arrest, detention and character assassination were calculated and/or have caused him harm to his person, dignity and fame, necessitating him being compensated for same.

THE PARTIES

[7] The plaintiff is businessman and managing director of a security company in Vanderbijlpark, ordinarily resident at 15 Vaalpark, Vereeniging.

[8] The first defendant is the political head and responsible or accounting authority of the Department of Safety and Security in and under whose auspices the South African Police Services (“SAPS”) resorts.

[9] The second defendant is an inspector in the South African Police Service (“SAPS”) attached to the Vanderbijlpark Police Station.

[10] The second defendant and the other police officers who effected the arrest initially before the former took over and locked up the plaintiff in the police (holding) cells were acting within or in the course and scope of their employment and duties as policemen and women under the control of the first defendant.

EVIDENCE LED ON BEHALF OF PLAINTIFF

[11] On behalf of the plaintiff two witnesses testified in substantiation of the allegations.

Nicolaas George van der Westhuizen

[12] He is the plaintiff and the first witness.

[13] He is 37 years old, married, with two minor children. At the time of the occurrence of events leading to this suit he was 34 years old and residing in Vanderbijlpark where was born and bred. He gave his ID number as 751219 5122 08 8 and even produced the original ID-document for verification purposes. He has been the manager of his family-owned and run security company since he left school just under 19 years ago. The business premises are situate at Piet Retief Boulevard, Vanderbijlpark. Its name is DAI Security.

[14] By virtue of his work description he has people working as permanent guards in his business as well as around 10 to 15 guards who are always on standby in the event of need. His business has a client base of over 3 000 clients, some of whom are private person while others are small businesses and major corporations.

[15] He works closely with Vanderbijlpark SAPS where he regularly takes security guards from his firm for the periodical fingerprinting as required in the security industry. He said he was well-known at Vanderbijlpark SAPS as well as within the general community, more so that his family security company is the oldest in the area. He also has relatives and friends or acquaintances working as policemen and/or women at Vanderbijlpark SAPS.

[16] His security company has a cordial relationship with the police station : it sponsors events meant for police members, has donated cellphones to the police station for use in crime prevention, have donated vehicle parts to the police station for repairs and maintenance to the patrol vehicles so that they be in tip-top shape for policing duties and helped set up or maintain facilities for use by the public there, to mention a few.

[17] On 29 November 2009 in the morning the plaintiff and his wife received news that one of their family friends was killed in a motorcycle accident. He took the company Nissan X-trail suv with registration letters and numbers XMN 615 GP, loaded his wife and two children and drove towards his sister-in-law’s place in Elana Lochner Street, Vanderbijlpark.

[18] When he turned into Pasteur Street, Vanderbijlpark he noticed a black Volkswagen Golf with police-like blue and red lights flicking its lights and he took it he was being stopped. He pulled over and the Volkswagen Golf stopped alongside his motor vehicle on his right. There were two people inside – a man and a woman. Both of them were Africans (blacks). By the firearms at their sides and the blue lights and radio antenna on the roof of the Golf he was convinced they were the police, even though the blue light was not on the car’s roof but inside the cabin on the dashboard. It was not a marked police car however and the two were not in uniform.

[19] The male occupant of the Golf approached him and asked him if the Nissan X-trail belonged to him without introducing himself to him (plaintiff) or producing and flashing any police ID-card at him as would have been expected. He told him the vehicle was his and asked him if there was a problem. The male person told him that vehicle (X-trail) was involved in a fraud case in Klerksdorp. To put it in the language he was using in testimony, he said:

“Die man sê toe vir my die voertuig wat ek ry was betrokke in ‘n bedrog saak in Klerksdorp.”

At this stage, this male person did not state that a person was involved in a fraud but that the motor vehicle was.

[20] He (plaintiff) told him that that was impossible because the X-trail was relatively new (at the time) and had never gone or been in Klerksdorp. He also told him it was a company vehicle which he used on all errands, business and private.

[21] The man ordered him to stay where he was and he went to the Golf, took out a briefcase from which he took out a small newspaper clipping about half the size of an ID-document. He showed the plaintiff a black and white photo of a white male on the newspaper clipping and told him he (plaintiff) looked like or was alike to that man in the clipping, and that the name of that man was Eugene Viljoen.

[22] The plaintiff told him that the man in the newspaper clipping did not look like him. The man then asked the plaintiff if he could see his ID-book. The latter told him that he left it at home due to the haste they left there as a result of the terrible news of the death of a friend. He asked the plaintiff where his home was. He told him. Incidentally according to the plaintiff the place where he was stopped or pulled over was about 4 to 5 km from his house. He surmised that if he was really eager to verify his identity, it was not that far to go there and do so. The plaintiff also stated that he was in possession of his driver’s licence, however this man did not ask to verify his identity thereby, or verify the registration of the X-trail through its licence disk. Furthermore, he did not explain to him in what respect the X-trail was involved in or with a fraud case in Klerksdorp. In fact, he did nothing to verify facts that would or could have satisfied him that he was not speaking to Eugene Viljoen. No mention was made to him by this unknown man (at that stage) about any warrant of arrest. The man just told him he could go and he (plaintiff) drove away towards his destination.

[23] When he stopped the X-trail in front of his sister-in-law’s apartment complex in Elena Lochner Street, he only then realised that the Volkswagen Golf must have followed him because he saw it stop behind the X-trail. This time round the woman occupant of the Golf approached him and ordered him to summarily or forthwith go with them to the police station. He asked his wife to alight with the children and go inside the complex to her sister. The woman occupant of the Golf got in and occupied the X-trail’s passenger seat. At this stage none of these people had told him whether he was under arrest and/or for what offence(s). She ordered him to drive to the Vanderbijlpark Police Station.

[24] He had no choice or was not given any option but to comply. His freedom and movement were curtailed. No warrant was shown to him even at this stage.

[25] At the police station he was taken into the office that serves the cell complex and told to wait there under guard as the investigating officer was on his way to the police station.

[26] When that investigation officer arrived, it was Inspector Kutuane, the second defendant.

[27] Without greeting the plaintiff or identifying himself to him the second defendant told the former that he had waited a long time to meet face-to-face with him. “Om hom in the hande te kry …” as he put it in Afrikaans. He was also in private clothes.

[28] Without intimating whether he was being arrested or under arrest or reading him his constitutional rights, the second defendant simply grabbed the plaintiff’s arms, twisted or pulled them to his back and handcuffed them there. When the plaintiff asked him why he was handcuffing him the second defendant allegedly told him he (plaintiff) should or ought to know. When the latter protested his innocent the second defendant insisted he knew why he was being handcuffed. According to the plaintiff further the second defendant was highly arrogant and unapproachable. Even when the plaintiff told him he was recently released from hospital with broken ribs as a result of a motorcycle accident and asked that he not be handcuffed with his hands at his back as it was too painful, the second defendant just said to him:

“… ek is nie gepla nie …”

meaning, I am not concerned or troubled by that.

[29] He was then taken to a room nearby where his fingerprints were taken and personal things like shoe laces were confiscated. Thereafter he was re-handcuffed and left there guarded by three policemen.

[30] The plaintiff further testified that he obediently followed their instructions without talking back or remonstrating. It was around 08h00 when all these latest were done.

[31] The second defendant then told him that he had been tracing or trailing him for a whole week and asked him where he was the previous Saturday.

[32] At this stage counsel for the defendants, who had been provided with an official sworn interpreter as she stated that she did not understand the language the witness was using in testifying, to wit, Afrikaans, raised an objection about the plaintiff’s counsel who dramatically or rhetorically repeated the words of the plaintiff, namely:

“… They had been following you or trailing you for a week!”

[33] Apparently she misconstrued the meaning and effect of this gesture because the same words which were uttered by the plaintiff were still in the process of being interpreted when counsel for the plaintiff repeated them rhetorically or by way of emphasis, just like when words would be underlined or placed in parenthesis for emphasis or maximum effect. I explained what had happened after counsel for the plaintiff had also explained how the words were uttered euphemistically.

[34] The second defendant then asked the plaintiff if he knew Beethoven Street and the latter said he knew the street but nobody living there. He then asked him if the knew Mantevrede Plot No 70 and the plaintiff told him that this was the site of his family security company business.

[35] He then asked him for his ID-document and the plaintiff told him it was at his home.

[36] At this stage, according to the plaintiff, he asked that he be allowed to phone his attorney but the second defendant told him that was unnecessary as the presence of an attorney would not assist him or come to his aid. He instead proposed that he take the plaintiff to his home to fetch his ID-document.

[37] With his hands still handcuffed at his back the second defendant and some of his colleagues attempted to push or press him into the back seat of a small Ford Ikon sedan but failed because he (plaintiff) is a big man and his hands were handcuffed behind him. The Ford Ikon was too small to accommodate him.

[38] That was when his (plaintiff’s) wife arrived at the police station with the children.

[39] The plaintiff and his counsel at this stage requested leave from the court to stop testifying in Afrikaans for the benefit of the defendants’ counsel who indicated that she did not understand that language, hence she was provided with an interpreter. Their motivation was that the move would lead to a faster pace in the proceedings and eliminate discomfort for defendants’ counsel. Despite my re-assurances to the plaintiff that he had a right to testify in the language of his choice or one he was comfortable in, he still elected to use English with the reservation that whenever he felt he could not transmit his message across adequately in English, he be allowed to express himself in Afrikaans. His wish was granted.

[40] The plaintiff asked his wife to go and fetch his ID-document at home. She collected the car keys from him so that she can take out the house keys from the X-trail.

[41] The second defendant walked with her or after her towards the car and then inexplicably slapped the keys out of her hands. They fell to the ground. He (second defendant) said to her:

“Jy is getroud met ‘n krimineel. Die klere wat jy aan het is gesteelde klere.”

In English, loosely translated, the above words mean:

“You are married to a criminal. The clothes you are wearing are stolen clothes.”

[42] The plaintiff does not remember her response but his wife drove away.

[43] When the wife returned with the ID-book and handed it to the second defendant, the latter said:

“Ah!! another fraud case.”

[44] The plaintiff’s wife told him the ID was not a forgery and that if he (second defendant) wished to verify the plaintiff’s identity, she also had in her possession their marriage certificate and the children’s birth certificates from which such verification can also be made. According to plaintiff the second defendant insisted that a fraud is a fraud by any name, meaning that he still regarded the ID-document of the plaintiff as a forgery.

[45] That is when the plaintiff asked his wife to call their attorney, Mr David May to come to his aid.

[46] When David May arrived, he tried to convince the police, especially the second defendant that the plaintiff was not Eugene Viljoen, that he personally knew Eugene Viljoen and that the plaintiff was definitely not Eugene Viljoen.

[47] It was at this stage that the plaintiff heard the police explain to David May that the former was suspected of having committed fraud at Klerksdorp amounting to R2 000,00.

[48] When David May could not convince the police that the plaintiff was not Eugene Viljoen he told the plaintiff that he had done his best and he would leave and see him the following day.

[49] The police, i.e. second defendant ordered that the plaintiff be locked up in a cell and the latter was duly booked in. Even at this stage, the plaintiff testified, he was not read back or recited his constitutional rights. It was around 11h00.

[50] He asked for medical attention or medication but he was ignored.

[51] His (plaintiff’s) father also arrived at the scene and vouched for the plaintiff. However, since the plaintiff’s surname was not the same as that of his father the police refused to believe that they were father and son. The plaintiff explained that he was his stepfather, hence the latter’s surname was Van Loon. This did not convince the second defendant to change his mind about locking the plaintiff up. Even the fact that the plaintiff ran a well-known 24-hour security company in the area was not enough to make the second defendant believe him or at least first conduct an enquiry into the veracity of the plaintiff’s story and/or the authenticity of his alibi.

[52] According to the plaintiff further, he asked his wife to give him his pills. As the latter was to hand same over, the second defendant slapped them out of her hands and they fell down. She had to pick them up from there. The food that his wife had also brought to him was not handed to him.

[53] All the above, according to the plaintiff, happened in full view of his young children. They were traumatised and crying. As a result of what they had witnessed, they had to see a psychiatrist or psychologist for counselling.

[54] The plaintiff also testified about the conditions under which he was incarcerated : He was put in a small room which had a mattress on the floor and the place was teeming with lies. It was very dirty. There were other 12 to 13 inmates in that cell, some of whom were very aggressive towards him and a fellow white also incarcerated therein. They (the two) were the only whites in the cell. The group they were with started fighting among themselves with the result that he and the fellow white cellmate were forced to retire to some passage nearby within the cell, where they spent the night huddled in a heap. The black cellmates would demand money or cigarettes from them on pains of assault if they could not comply. He also stated that some of the cellmates were still obviously under the influence of liquor.

[55] During cell visits he (plaintiff) asked that he be given his pills but was ignored.

[56] The following morning he was re-handcuffed and taken to a transit room or office where paperwork was prepared for him and others to be taken to court. His fingerprints were taken there.

[57] While in that place he was seen by a paramedic who, after checking him, told the police that he was not qualified to deal with a person with broken ribs and that such injury was the preserve of properly qualified practitioners, i.e. doctors.

[58] He asked that he be handcuffed with his hands in front to alleviate the pain but they refused.

[59] He was taken to the court complex which is situated next to the police station where he was put in a cell there. No food was given to him except a slice of bread and some soup, which according to him looked so unhealthy that he refused to eat it.

[60] While there an acquaintance working at the police station, one Captain Cloete, came by. He told the police that he knew the plaintiff well and that he was not Eugene Viljoen. He was also ignored.

[61] He was kept in those court cells from around 08h00 until around 15h30 when he was taken to a certain female police officer who was said to be from Klerksdorp. This was W/O Constance Elizabeth Nepgen, who testified on behalf of the defendants and who was incidentally the investigating officer of the case at Klerksdorp wherein Eugene Viljoen was a suspect. In fact, according to the plaintiff, W/O Nepgen called out the name of Eugene Viljoen when she arrived and because he knew he was being associated with or mistaken for Eugene Viljoen, he stepped forward and told her he was the man being mistaken for Eugene Viljoen. W/O Nepgen immediately turned and faced the second defendant and told him he had arrested a wrong man. When W/O Nepgen realised that the plaintiff also had part of his ring finger missing, she told the second defendant and the other police that the Eugene Viljoen she was investigating had a full set of fingers. It was then when the second defendant tried to force W/O Nepgen to take the plaintiff to Klerksdorp and decide there whether to release him or not. W/O Nepgen refused.

[62] He (plaintiff) was then released and told to go home. Second defendant refused to give him his ID-book.

[63] As he was walking out of the police station with his father-in-law, the second defendant according to the plaintiff uttered the following words in Afrikaans and English:

“Ek is nie klaar met jou nie. I know where you live.”

[64] According to the plaintiff, these words coincided with what the second defendant told him earlier : That he was going to send him to Klerksdorp to face his misdemeanours there.

[65] After two weeks he went to fetch his ID-book from the police station.

[66] The above experiences according to the plaintiff have traumatised him and his family. He had to consult a psychologist for counselling. His children fear the sight of a policeman. His clients keep on asking him whether it was correct he was arrested and locked up for fraud by the police, which aspect is damaging to his person, reputation and business. He verily believes that his identity would have been easily verified, even from policemen working at the police station as he was well-known there. It is the reason he believes that the second defendant, W/O Kutuane, acted like a racist or a person with a sinister hidden agenda.

[67] Cross-examination of this witness did not reveal anything of substance save for what was put to him that the two police officials who arrested him in the street did not travel with him in his car to the police station and no newspaper clipping was shown to him. The plaintiff persisted with his story. Plaintiff also confirmed that he and his wife knew quite a few policemen working at the Vanderbijlpark Police Station. Plaintiff also stated here that he later met Eugene Viljoen through a friend of his who introduced them to each other after hearing the plaintiff’s story of woe.

[68] The plaintiff’s wife, Dorothy Lewis van der Westhuizen corroborated the plaintiff’s version in all material respects. Cross-examination did not elicit anything new. She also corroborated the uttering of the words complained of as being derogatory and defamatory of the plaintiff by the second defendant.

[69] That concluded the plaintiff’s case.

DEFENDANTS’ CASE

[70] The defendants’ case was led through only two witnesses, namely, Constable Mtanelo Mike Dikotsi, the arresting officer, and W/O Nepgen. Te second defendant did not testify or called to testify.

[71] Constable Dikotsi’s testimony was that he was working in the tracing unit at Vanderbijlpark Police Station. On the morning of 29 November 2009 he was shown a warrant of arrest by the second defendant and instructed to look for a white man a Eugene Viljoen, driving a black Nissan X-trail with registration letters and numbers XMN 615 GP and wherever he finds it, to bring it and the driver to the police station. He was using a black unmarked Volkswagen Golf and was accompanied by female Constable Tsheueu. According to this witness, this white man was wanted by the police for a fraud case.

[72] As he patrolled around Vanderbijlpark he spotted the vehicle fitting the description he was given, number plate and all. He stopped this vehicle using his hooter and by flicking his headlamps at it. It pulled over and he stopped his vehicle near it. He then went to this X-trail and introduced himself and told the driver who was the plaintiff that he was ordered to bring the Eugene Viljoen driving it to the second defendant at the Vanderbijlpark Police Station. He went on to state that the driver told him he was Nicolaas Oosthuizen or something like that. He allowed him to drive away as he did not fit the name description he was given by the second defendant. He then phoned the second defendant to tell him what had happened. The latter ordered him to follow or look for that motor vehicle and bring it and the driver to the police station:

“… even through the names were different as he wanted to talk to him …”

[73] He drove around until he spotted the X-trail parking in front of some complex gate in Vanderbijlpark. He approached the occupants of this car and told the occupant that he had been ordered to bring them in at the police station. The woman in the motor vehicle, who happens to be the plaintiff’s wife told him the driver was her husband and was definitely not Eugene Viljoen as well as not being a criminal. He told them he understood however he was going to take them with him to the police station by hook or crook as that was an instruction from his superior. They relented and they drove the X-trail in front of their Volkswagen Golf to the police station.

[74] On arrival at the police station the two vehicles entered the precinct and parked there between the charge office and the police cells complex. He then phoned the second defendant. The latter came from the charge office to where they had parked. He handed the X-trail driver and the woman to his care and custody and left as his work was done.

[75] Constable Dikotsi further stated that he did not see children inside the X-trail at any stage. He insisted that the plaintiff’s wife accompanied the plaintiff in their vehicle. He categorically denied his colleague, the female Constable Tsheueu ever climbing into the X-trail’s front passenger seat. He agreed that he and Constable Tsheueu had their service pistols with them. He also stated that at no stage did Constable Tsheueu approach the X-trail. She, according to him throughout stood guard at their Volkswagen Golf in the event something went wrong.

[76] He denied ever showing the plaintiff a newspaper clipping containing the picture of a white male.

[77] He further stated that at no stage were the occupants of the X-trail aggressive or uncooperative.

[78] During cross-examination the following emerged:

1. This witness was never given any job description of a tracer and never received any formal training whatsoever to do such a job;

2. He did not know the person he was looking for, let alone how he looked like;

3. A policeman should record all he/she did in a pocket book, however he did not write the details of the wanted person and vehicle in his pocket book but on a piece of paper;

4. He identified a document shown to him as the warrant he was shown by the second defendant;

5. He stated that he could not speak or understand Afrikaans;

6. There was an ID-number of the wanted person at the bottom of the warrant of arrest to identify the wanted man with and that number, 760227 5025 08 4 did not match the plaintiff’s ID-number (as read out to him in court);

7. He never possessed a briefcase this day, neither did he possess one generally;

8. He conceded that there are many people driving black X-trails around;

9. He allowed the plaintiff to drive away after stopping him, the first time because he was satisfied he was not the person wanted by the second defendant but the latter ordered him to bring that man and vehicle in;

10. He never asked for any identification document from the plaintiff or try to verify his identity before he commanded him to drive in front of him to the police station;

11. Under no circumstances would he have tolerated the plaintiff not going with him to the police station;

12. He stated that an extract from the second defendant’s statement under oath that he (second defendant) received information from his informer about sighting the X-trail at around 07h30 as well as that informer having seen Eugene Viljoen’s photo in the Daily Sun Newspaper was news or new evidence to him;

13. He also denied the second defendant’s version that it was him (second defendant) who spotted the X-trail driving in town and he (second defendant) asked the drier to accompany him to the police station;

14. He acknowledged that at no stage did he see the plaintiff committing any Schedule 1 offence in his presence, as allegedly alleged by the second defendant; and

15. The plaintiff had no choice or option but to accompany him to the police station.

[79] W/O Nepgen then also testified. She is a detective attached to the Klerksdorp SAPS with 15 years service. She confirmed that she had no suspect with the name of Van der Westhuizen. Her suspect was Eugene Viljoen.

[80] More materially, according to this witness the warrant of arrest she had for Eugene Viljoen was never at Vanderbijlpark on 28 or 29 November 2009. Her attempts to fax it to the second defendant on 29 November 2009 at night failed. Consequently according to her it was untrue or impossible for Constable Dikotsi to have seen that warrant of arrest at 07h30 on 29 November 2009.

[81] According to this witness further, she confirmed through the plaintiff’s fingerprints that he was not Eugene Viljoen. She made use of Home Affairs fingerprints data as well as the police’s LCRC experts on fingerprints to verify the plaintiff’s identity as not been that of Eugene Viljoen.

[82] She was asked to read out from the investigations diary in the Klerksdorp docket aspects relating to this matter. She had recorded those entries long afterwards, i.e. on 7 December 2009. The inscription is in Afrikaans and it is my considered view that same should be reproduced as written so as not to derogate on its meaning or impact. It reads as follows:

“2009-12-07 Ontvang oproep op 2009-11-27 vanaf Insp Kutuane vanaf Vanderbijlpark. Vra dat ek lasbrief (LB) moet deurfaks. Faks wou nie deurgaan nie (016) 9881867. Op Sondag 2009-11-29 kontak Insp Kutuane my weer en vra vir verdagte Eugene Viljoen se ID No. Kry nuwe faks. Probeer weer faks en sirkuleer strokie deur faks no. (016) 9101969. Tel lui net, gaan nie oor op faks nie. Kontak Insp Kutuane en hy deel my mee dat hy my Maandag oggend sal kontak. Op Maandag oggend kontak Verdagte se Prok nl Mnr David May my en deel my mee dat persoon wat te Vanderbijlpark gearresteer is nie Eugene Viljoen is nie, maar N G v/d Westhuizen. Terwyl by hof is kontak Insp Kutuane my weer vir LB en faks LB deur na (016) 9109083. Prok kontak my ook en sê dat SA my sal kontak. Sup Makaudi roep my in om ongeveer 10:30 op 2009-11-30 en deel my mee dat daar gesê word dat ek weier om verdagte te gaan haal te Vanderbijlpark en dat hy probeer om selfmoord pleeg het. Kry magtiging saam met Insp Visser en gaan na Vanderbijlpark, spreek verdagte en neem vingerafdrukke. Vergelyk V/A met verdagte Eugene Viljoen se V/A wat verkry is by PKLS Binnelandse Sake. V/A word ook vergelyk deur Insp Modise wat by V/A eenheid gewerk het. Dit is nie dieselfde persoon nie. Foto’s stem ook nie ooreen nie. Verdagte gearresteer se regter ringvinger se eerste lit is geamputeer. Kapt Viljoen deel my ook mee dat Mnr v/d Westhuizen gereeld gearresteer word vir aanranding en goed bekend is by die hof. Insp Kutuane lyk of hy my wild wing om verdagte saam te neem en beweer dat ek verkeerde verdagte gesirkuleer het. Verdagte word nie met saak verbind nie en OB wyer om hom te arresteer op MAS 836/01/08. Prokureur ken verdagte Eugene Viljoen en soek hom self.”

[83] From the above quotation it is clear that a wrong person had been arrested and detained under circumstances where the arrest could have been avoided or his identity verified immediately. It is also clear that Constable Dikotsi lied about seeing a warrant of arrest for Eugene Viljoen on 29 November 2009 and that the second defendant, in the face of all the above facts and circumstances exonerating the plaintiff, still tried to coerce W/O Nepgen to arrest him. She stated that she was not prepared to inherit or take over Insp Kutuane’s problem.

APPLICATION TO AMEND DEFENDANT’S PLEA

[84] After both the plaintiff’s and defendants’ cases were closed, on 7 September 2012 both sides were asked to prepare and hand in heads of argument. The deadline to do so was 13 September 2012 at 12h00. By the deadline only the plaintiff’s heads were filed. The defendants’ were brought to court on 14 September 2012. The defendants’ counsel’s explanation that she tried but failed to send them over electronically on time was accepted by the court as proof of the attempts were produced.

[85] Before counsel for the plaintiff could commence with closing argument, counsel for the defendants made an application to amend paragraph 5.2.2 of the defendants’ plea by deleting the words:

“… committed in his presence.”

at the end of that paragraph.

[86] The plaintiff vehemently opposed the proposed amendment.

[87] To put the proposed amendment in its correct perspective and context, the section sought to be amended reads as follows:

“5.2.2 he (i.e. 2^nd Defendant) reasonably suspected the Plaintiff of having committed an offence referred to in Schedule 1, to wit, fraud, committed in his presence.”

[88] The application to amend was not allowed for the following reasons:

1. The plea herein was served and filed on 8 July 2010. Many processes pertaining hereto have been embarked upon, like pre-trial conferences;

2. This aspect was specifically raised when the defendants’ first witness, Constable Dikotsi, was cross-examined, more so that Constable Dikotsi’s testimony was diametrically opposed to the gist of the defendants’ plea or tended to negate issues therein raised, especially this aspect that the plaintiff was arrested because the second defendant reasonably suspected that he (plaintiff) have committed a Schedule 1 offence in his (second defendant’s) presence;

3. The issues raised around this aspect in my view called for evidence from the second defendant, Inspector or W/O Kutuane to set the record straight or shed light on W/O Kutuane according to counsel for the defendants refused to enter the witness stand and testify : I will deal with the probity of this refusal later in this judgment;

4. This specific issue was pertinently raised in the plaintiff’s heads of argument and was intricably woven into the very fabric of the plaintiff’s submissions or argument;

5. In the circumstances it was this Court’s finding that the application to amend was too conveniently timed as not to raise an apprehension that it was opportunistically raised as a rear-guard move to come up with a change in the defendants’ case unfortunately at a time when it could not be done without causing prejudice and injustice;

6. It was also my considered view and finding that W/O Dikotsi (second defendant) had the time, opportunity and occasion to put the record straight by entering the witness stand and subjecting himself to cross-examination;

7. It is common cause that he refused to or did not do so. Even at this stage of the proceedings, nothing prevented the defendants’ re-opening their case and leading the evidence of the second defendant. They did not take this chance or opportunity.

ANALYSIS

[89] Section 40 of the Criminal Procedure Act 1977 (Act 51 of 1977) as amended (“Criminal Procedure Act” or “Act”) makes provision for the arrest of a person without a warrant. However the circumstances under which such arrest may be effected are clearly circumscribed. Section 40(a) allows for such an arrest where such person is reasonably suspected of having committed a Schedule 1 offence and section 40(b) allows for same where such an offence is committed in the presence of an officer of the peace, of whom a policeman/woman is one. In terms of section 50 of the Act, such arrested person shall appear before court within 48 hours of his/her arrest.

[90] Our Constitution and other enabling legislation do not countenance an arrest without a warrant for flimsy or negligible or obscure reasons. The law should be interpreted in such a way that the liberty of an individual is always paramount.

[91] In Minister of Safety and Security v Glisson 2007 (3) SA 78 (E) the court held among others that:

“… where there is an even balance between the protection of the individual liberty and avoidance of unnecessary restriction on the police, the scales will fall on the side of individual liberty. The police should not lightly arrest without a warrant.”

[92] The onus of proving the lawfulness of an arrest rests with or on the police, i.e. the defendants herein.

See: Brown and Others v Deputy Commissioner of Police, Natal 1960 (2) SA 809 (N).

[93] Where, as in this case, the issue is whether or not the arrest was lawful or wherein a wrong person has been arrested, the question to be determined in relation to the immunity given to the police under the applicable laws is whether any ordinary, prudent and cautious person authorised and bound to execute a warrant of arrest or effect an arrest, would have believed that the person being arrested was the wanted person or the person named in the warrant of arrest, if any.

See: Ingram v Minister of Justice 1962 (3) SA 225 (W).

[94] It is so that the police are exonerated from blame when lawfully executing their duties. In Minister van Wet en Orde v Van der Heever 1982 (4) SA 16 (C), this was encapsulated in the headnote as follows:

“The intention of the Legislature according to the wording of s 46 of Act 51 of 1977 is to exonerate anyone from the consequences of an unlawful arrest provided he had reasonable grounds for believing that the person he had arrested was the person who had to be arrested. The test which has to be applied is that laid down in Ingram v Minister of Justice 1962 (3) SA 225 (W), viz 'whether any ordinarily prudent and cautious person, authorised and bound to execute the warrant [or effect the warrant], would have believed that the plaintiff was the person named therein [or to be arrested]'.”

[95] The issue of the burden of proof was reiterated in the yet unreported case of Raymond Ngema v Mininster of Police decided by Van Oosten J under Case Number 05081/2011 on 24 May 2012. At para [6] thereof the honourable judge put it as follows:

“… It is trite that the onus rests on the arresting officer, and therefore the defendant, to prove justification for the arrest and detention (see Zeeland v Minister of Justice and Constitutional Development and Another [2008] ZACC 3; 2008 (4) SA 458 (CC) para [24] and [25]. The determination of this issue requires me to assess the credibility of the witnesses. In this regard the shortcoming in the evidence of the police witnesses concerning the contradiction regarding the events … after the plaintiff had been apprehended, is of crucial importance.”

[96] I fully agree with my brother Van Oosten J’s findings above. This is what has happened in this case and what I am called upon to do.

CLAIM 1 – UNLAWFUL ARREST AND DETENTION

[97] The plaintiff’s contention is that he was arrested at Elena Lochner Street, Vanderbijlpark around 07h30 on 29 November 2009 and was only released late in the afternoon of 30 November 2009, making the total period he was unlawfully deprived of his liberty and/or freedom, 32 hours. The defendants’ contention is that should this Court find that the plaintiff’s arrest and/or detention were unlawful, the total period should be calculated from 10h00 on 29 November 2009 until his release, coming to a total loss of liberty or freedom for 28½ hours.

[98] It is my considered view that there is no material disparity between the periods propounded by the protagonists herein as same would not materially affect any award, if found to be justified, that may be considered.

[99] I am satisfied that the plaintiff and his witness or wife were credible witnesses whose versions were mutually corroboratory and their testimonies were not at any stage impeached by cross-examination. On top of that, as also conceded by the defendants, the plaintiff’s version was corroborated by the defendants’ witness, Constable Dikotsi.

[100] It was Constable Dikotsi’s testimony that after he himself was satisfied by the plaintiff’s explanation that he (plaintiff) was not Eugene Viljoen, and allowed him to drive away, he was ordered by the second defendant to follow him and bring him to him at the police station. According to Constable Dikotsi, had the plaintiff refused to go with him to the police station, he (Dikotsi) would have forcibly taken him there. It is thus common cause that the plaintiff was apprehended at Elena Lochner Street.

[101] It is also uncontradicted evidence by the plaintiff that upon his arrival at the police station the second defendant handcuffed his hands behind his back in spite of his pleas that that conduct was exacerbating the pain in his broken ribs. It is thus not in dispute that the plaintiff was arrested by the second defendant who proceeded to detain him in the police cells until the following day in the afternoon when he was released without a charge from the Vanderbijlpark Magistrates’ Court cells.

[102] As to the lawfulness of this arrest, Constable Dikotsi testified that he was shown a warrant of arrest for Eugene Viljoen, be it the evening of 28 November 2009 or the early morning of 29 November 2009. There is no material difference. From the evidence led by the defendants’ W/O Nepgen, it is impossible for the warrant of arrest for Eugene Viljoen to have been available at Vanderbijlpark on the above two days as it was only faxed through successfully on Monday 30 November 2009. The defendants’ version herein is based on a blatant untruth. Why such lies were told has not been explained.

[103] It is my considered view and finding further that the policemen and women involved in the arrest and detention of the plaintiff had ample opportunity and occasion to verify whether the plaintiff was Eugene Viljoen or not. There is evidence that the second defendant did not want to listen to the plaintiff’s explanation that there are also police officials stationed at the Vanderbijlpark police station who could vouch that he was not Eugene Viljoen. The second defendant also could have taken the plaintiff the 3 to 4 km to his home and allegedly well-known 24 hour business premises to verify his identity. As clear proof that he was bent on arresting and detaining the plaintiff irrespective of any proof he furnished, when the latter’s wife brought his ID-book as well as their marriage certificate and one of the children’s birth certificate, the second defendant dismissed same as being fraudulent. Yet, when he booked the plaintiff in, he recorded him in the books as Van der Westhuizen and not the Eugene Viljoen he was insisting he was.

[104] The above conduct, in my view, and finding strengthens the plaintiff’s contention that the second defendant acted with a tinge of malice that can even be characterised as racism.

[105] It should be borne in mind that the second defendant had Constable Dikotsi’s team that was floating around town doing “tracings” or on patrol. They could have easily done the verifications even if the second defendant may have been held up or busy with something. This Court would not know why all these happened or why logical things were not done because the second defendant refused to testify in this trial.

[106] The next question to be answered is whether or not the second defendant had any grounds whatsoever to believe that the plaintiff was Eugene Viljoen. On the evidence before this Court no reasonably, careful person would have come to that conclusion.

[107] Even on the morning of 30 November 2009 one of the court orderlies, Captain Cloete, told the second defendant that the plaintiff was definitely not Eugene Viljoen. The second defendant ignored all this information. It is my view and finding that even at this late stage, the release of the plaintiff in the morning would have ameliorated or mitigated the damages inherent in the then already realised unlawful arrest and detention.

[108] Without any reasons whatsoever, the second defendant decided the plaintiff was to be apprehended, handcuffed, and detained in the cells.

[109] The evidence of W/O Nepgen was conclusive proof of the unlawfulness of the arrest and detention.

[110] Counsel for the defendants wanted to make capital of a few discrepancies in the testimonies of the plaintiff and his wife, like whether they arrived simultaneously at the police station or what was happening when the second defendant allegedly uttered the words complained of as being defamatory. She also argued that the fact that the words complained of as testified to in court are not exactly the same words quoted in the pleadings points to untruthfulness on the part of the plaintiff and his witness.

[111] In my view, the above submissions are misplaced.

[112] The evidence in this matter clearly and unambiguously prove unlawful arrest and detention.

[113] The plaintiff’s evidence about how he was handcuffed, how dirty, uninhabitable and inhuman the conditions in the cells were have not been gainsaid. He was not even allowed to accept food that was brought to him by his wife.

[114] It is thus my considered view and finding that the plaintiff was arrested in a dehumanising and inhumane manner in front of his small children and that the arrest has humiliated and traumatised him and his family. It has not been disputed that the family had to undergo counselling. The conditions in the cell in which he was incarcerated were also proven to have been such that he had to endure spending the night exposed to the elements in a small passage within that cell. That this was a harrowing experience cannot be disputed.

[115] The manner in which he was herded to the police station echo’s what was held in Masawi v Chabata and Another 1991 (4) SA 764 (ZH) wherein that court case’s headnote reads as follows:

“Delict - Arrest - Wrongful arrest - What constitutes - Plaintiff  induced, by means of unlawful threats of physical force and imprisonment, to accompany officers to police station in order to resolve civil dispute in which plaintiff involved - Plaintiff under complete direction and control of police officers for approximately two hours and 40 minutes - Such constituting proof of arrest.”

[116] Counsel for the defendant argued that the mere fact that the plaintiff did not resist Constable Dikoti’s order to accompany him to the police station presupposed that he was not under arrest at that stage. As seen above, this submission is gainsaid by the findings in the Masawi v Chabata case above.

[117] It was also submitted on behalf of the defendants that because the second defendant and the plaintiff did not know each other, there was no way the former could have harboured any ill-feelings or malice towards the plaintiff.

[118] Unfortunately the second defendant chose or elected not to participate in this trial. As such the above submission is pure speculation or conjecture which takes this case nowhere. What is trite is that a person’s actions, deeds or words may well be outward manifestations of that person’s state of mind and the circumstances of each case may dictate whether such manifestations can be found to constitute some of the probabilities inherent in the case. It is my view and finding that in this case, the second defendant’s conduct and utterances lend themselves to the above supposition or interpretation.

[119] What really surprised this Court is the defendants’ counsel’s submission that the plaintiff ought to accept the conditions under which he was incarcerated because being arrested and detained in public cells presupposed that one should accept any conditions one finds there, be they bad or extremely bad.

[120] I find the above submission not only strange but also insensitive, dehumanising and humiliating. I interpret same to mean that the authorities are at liberty to have unkempt, uninhabitable detention venues or centres as they are or will be accommodating criminals or sub-humans.

[121] In this case, the plaintiff had done nothing in front of Constable Dikotsi or the second defendant to deserve being labelled as a criminal or a person deserving of a place worse than an unkempt and un-cleaned pig-sty or being abused when in police custody. There is thus no justification for the above submission.

[122] The plaintiff in my view and finding has thus proved that he was unlawfully arrested under mysterious circumstances and detained under harrowing and dehumanising conditions.

CLAIM 2 – DEFAMATION

[123] The plaintiff’s averment and allegations that the second defendant humiliated him by referring to him as a criminal who is providing for his wife (and by extension, his family) through ill-begotten spoils gained through criminal conduct is unchallenged. The person who should or could have challenged these allegations is the second defendant himself. He refused to set the record straight.

[124] As already stated above, the words complained of are inherently defamatory. It has not been disputed that these words were uttered to the plaintiff’s wife in the presence of and possibly or probably within hearing of the couple’s minor children but decided within hearing of the second defendant’s colleagues whose evidence said they even laughed at the plaintiff’s wife when the words were uttered by the second defendant.

[125] It is my view and finding that even though the second defendant refused to come and help this Court with his testimony, anyone of those colleagues of his who were present when the words were uttered are competent and compellable witnesses who could have been called to come and testify. They were interested parties to the shenanigans taking place : Their evidence may have shed some light on whether or not the plaintiff and his wife sucked the words from their thumbs. It is water under the bridge that they were not called. Consequently, the plaintiff’s version stands unchallenged and “alive”.

[126] By any description the words:

“Jy is getroud met ‘n misdadiger en jou man is ‘n krimineel”

as well as

“… die klere wat jy aan het is deur jou man gesteel …”

are defamatory. They branded the plaintiff as a criminal, an offender and a thief.

[127] These words were uttered by the second defendant while on duty as a police official who was acting within the purpose, course and scope of his duties as a police officer. The plaintiff submitted that those words were uttered by the second defendant intentionally without reasonable grounds whatsoever to substantiate any truthfulness thereof. There is no counter from the defendants’ side. As such the allegations are proven.

See: Food World Stores Distribution Centre (Pty) Ltd v Allie [2002] 3 All SA 200 (C).

[128] In Seymour v Minister of Safety and Security 2006 (5) SA 495 (W) the plaintiff was arrested by a policeman on 29 December 2000 and locked up. All attempts by family to have him released on bail were resisted by that policeman. Only on 30 December 2000 was the plaintiff told he was being arrested for fraud. Five (5) days later was he only taken to court where all charges against him were withdrawn or what people say, the case was thrown out of court. Later the policeman arrived uninvited at a meeting the plaintiff was having with the auditor of a charitable project, a foreign donor, a local donor and other persons. When asked to leave he said to the plaintiff in the presence of all present, that he will still “get” the plaintiff “for fraud and misappropriation of funds”. Since that day the plaintiff’s project(s) has received no further financial aid from foreign and local donors. When granting the plaintiff an order for R500 000,00 as compensation the court held among others that the plaintiff’s rights under sections 10, 12, 14 and 35 of the Constitution had in some degree been infringed and his right to dignity had unquestionably been infringed. The court further held that a sanction of damages that ought to be handed down in those circumstances warranted something:

“… more than a judicial slap on the wrist.”

[129] On the evidence before this Court the plaintiff has established the utterance of the abovementioned defamatory words against or towards him. It is my finding further that the requisite animus iniuriandi was also established.

DAMAGES

[130] The plaintiff is asking for damages in the amount of R500 000,00 for the unlawful arrest and detention and R100 000,00 for the defamation.

[131] Unlawful arrest and misuse of powers by members of the defendant is frowned upon and its escalation should be curbed as by yesterday, i.e. “pronto”.

[132] Section 12 of our Constitution gives everyone the right to:

“freedom and security of the person, which includes the right –

1. not to be deprived of freedom arbitrarily or without just cause;

(b) not to be detained without trial …”

[133] In Seymour v Minister of Safety and Security (supra) the court held among others that courts must move, however glacially, to reflect in their awards for damages in cases of wrongful arrest and detention the changes in values which have occurred, not only in society as a whole, but which judges are expected to apply, such as the right to freedom and security of the person, which includes the rights set out above found in section 12 of our Constitution. Included therein are the right to privacy (section 14), the rights conferred upon arrested, detained and accused persons (section 35) and the right to dignity (section 10). The learned honourable Willis J further held that if the courts value those rights, their judgments must reflect it.

[134] In my assessment of the award in respect of the plaintiff’s damages for unlawful arrest and detention on the one hand and the defamation of his character or defilement of his name, I propose also to adopt the approach followed by Erasmus J in Ntshinga v Minister of Safety and Security and Another and cited with approval by Plascet J in Peterson v Minister of Safety and Security 2011 (6K6) QOD 1 (ECG).

SECOND DEFENDANT’S CONDUCT

[135] The conduct of doings of the second defendant in this matter deserve closer scrutiny even though he elected not to testify. A docket with MAS 1336/11/20090, Control Register No. 546/11/09 and Case Register No. 05/11/2009 has been filed and handed in and marked Annexure “C” in this case by counsel for the defendants at the start of this trial. This docket contains several documents that were used in this trial, among them the second defendant (W/O Kutuane’s) statement under oath and other related documents. It is my considered view that the circumstances surrounding this case docket may have a bearing on the damages that may or ought to be awarded at the end of the day. Counsel in this case spent quite some time trying to unravel or defend the authenticity of its opening.

[136] This docket is supposed to have been opened at 10h10 on 29 November 2009. The suspect is Nicolaas George van der Westhuizen whose ID Number is 751219 5112 08 8. What is remarkable about this “copy of a docket” is that unlike ordinary dockets, the documents therein are not consecutively numbered in the peculiar SAPS mode of A1 to A-whatever. It is a compilation of documents filed haphazardly not in the sequence they would have been received.

[137] This is supposed to be the docket that would have been opened for Eugene Viljoen whom is supposed to have been pulled over and apprehended by the second defendant in “the road” driving a black Nissan X-trail with registration numbers XMN 615 GP for a fraud case at Klerksdorp. According to the A1, which is supposed to be the very first document in the “docket” the second defendant received this information from his informer at 07h30 on 29 November 2009. This A1 statement in his “docket” is the 12^th (twelfth) document, not the first. According to the statement the informer saw this Eugene Viljoen’s photo published in the newspaper “Daily Sun”.

[138] According to the statement further the second defendant personally went onto the streets and came across this X-trail. He allegedly pulled it over and ordered the driver to go with him to the Vanderbijlpark Police Station. There the driver produced an ID-book with the numbers mentioned above and the name was Nicolaas George van der Westhuizen. Because of this difference in the names which were not those of the suspect he wanted, he then suspected the ID-book may be forged. Without much ado he locked the man up, not as Viljoen, but as Van der Westhuizen.

[139] As can be seen, the above statement is diametrically opposed to that of Constable Dikotsi. Nowhere is warrant of arrest mentioned. Neither is the plaintiff’s wife, his attorney Mr May or his stepfather.

[140] What makes the situation more interesting is what is contained in what is marked A3 therein titled “Bail Information Form”. At the top thereof in capital letters is written:

“THE INVESTIGATING OFFICER MAY NOT NEGOTIATE WITH ACCUSED/LEGAL REPRESENTATIVE REGARDING BAIL.”

[141] That is a very peculiar instruction in the light of our present day constitutional dispensation.

[142] Further revealing in the document is the following : It states that the accused has no fixed address, no fixed employment, he has no property, yet he has a wife and children; he has previously been arrested and has outstanding warrants of arrest issued against him but is not in custody or on bail in any other case; has not committed any other offence while on bail or escaped or attempted to escape from custody or evaded or resisted arrest; however he is likely to evade or can easily evade arrest if released from custody; was or will be difficult to trace; has provided false information to SAPS; yet he co-operated with or surrendered to the police (SAPS); he will not interfere with or intimidate witnesses and never threatened any witnesses; nevertheless, despite the above, he is likely to interfere with investigations although he is no danger to any person or the community; he is a member of a gang or syndicate who might commit further offences and who, for his own safety, should be kept in custody and may not have contact with the complainant in the case being investigated.

[143] The case being investigated is not the suspected forged ID-document but:

“Fraud – Klerksdorp CAS 836/01/2008”

[144] With hindsight, we know that the suspect in the Klerksdorp case is not Nicolaas George van der Westhuizen with ID number 751219 5112 08 8 but Eugene Viljoen with ID number 760227 5025 08 4.

[145] The details listed above do not make sense. It is not understandable why Nicolaas George van der Westhuizen should be locked up for offences perpetrated by Eugene Viljoen.

[146] Now that we know that the plaintiff, who was the object or subject of all the above was a well-known resident of Vanderbijlpark whose family was running the oldest 24-hour security company in town and also that the plaintiff regularly brought his security officers to this police station for security clearance(s) the arrest of the plaintiff becomes mysterious if not surprising. There is also evidence that the plaintiff’s business has sponsored the police station with cellphones for crime prevention purposes. The second defendant works in the crime prevention sector and is also a member of the local Trio-Unit, which is a group of officers drawn from a cluster made up of several neighbouring police stations with a specific task of performing joint intelligence and crime prevention duties across the borders of specific police stations without transgressing any jurisdictional boundaries. How he would not have known of the plaintiff is not only at variance with recognised concepts of truthfulness but also smacks of blatant lies being told. The plaintiff suggested and charged that this particular “docket” never existed at the time the plaintiff was released from custody but is a recent fabrication by the second defendant in a sorry attempt to cover up for his indiscretion and misdemeanour. In the circumstances of this case, more so that this accusation was not contradicted, this Court finds it difficult, if not well-nigh impossible not to accept.

[147] It is this Court’s finding that the second defendant arrested and detained the plaintiff without any legally acceptable or valid cause. His creation of “Docket 1336/11/2009 (Vanderbijlpark)” was a failed or transparent attempt and/or ruse to try to cover up his illegal and unlawful act. This conduct not only caused both the principal parties in this case to engage in a trial that was not supposed to be, but also was an abuse of this Court’s process and time. Such conduct must be visited with the most punitive costs order.

[148] It is my further view and finding that the second defendant’s conduct may have misled the first defendant into defending this action. His failure or refusal to come and testify as enunciated in court by their counsel definitely left both the first defendant and its counsel with “egg on their faces”.

[149] The Constitution of South Africa and its Bill of Rights have been flouted flagrantly. The end result in this action or trial should reflect that abhorrence of the deliberate flouting of our constitutional values. As put by Tshiki J in Botha v Minister of Safety and Security and Others, January v Minister of Safety and Security and Others 2012 (1) SACR 305 (ECP) at para [31]:

“[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.”

QUANTUM OF DAMAGES

[150] The plaintiff is 57 years old now. He would have been 34 years old at the time of his unlawful arrest and detention. He is married with three children who are still young. These children were exposed to the plaintiff dehumanising experiences and harrowing tales of woe. He is still traumatised. So are the children and their mother. People in Vanderbijlpark keep on asking him about his arrest and detention in such terms as can be interpreted that his character may now be under serious cloud or suspicion.

[151] The humiliation and impairment of the plaintiff’s dignity due to the unlawful deprivation of personal freedom deserves due recognition. The plaintiff was in custody for a period ranging between 28½ hours and 32 hours after having done nothing wrong. It appears from the evidence adduced in this case that the second defendant wanted to show him “who is boss”.

[152] It is so that previously decided cases on the heads of damages in issue here may be used as a guideline when a proper quantum of damages appropriate to the circumstances of a case under consideration. Sight is not lost of the fact that each case should be decided on its own peculiar circumstances and facts.

[153] In Minister of Safety and Security v Seymour 2006 (6) SA 320 (SCA) the Supreme Court of Appeal lowered an award by the court a quo of R500 000,00 to R90 000,00 as a result of the peculiar circumstances in that case. In Kwenda v Minister of Safety and Security 2011 (6K6) QOD 10 (GNP) Murphy J awarded R70 000,00 for unlawful arrest and detention for approximately 44 hours. In Hoco v Mtekwana 2011 (6K6) QOD 18 (ECP) an award of R80 000,00 for unlawful detention of 4 days. The same amount was awarded in Fubesi v Minister of Safety and Security 2011 (6K6) QOD 44 (GSJ) where the period of detention was 18 hours.

[154] A clear indication of how the facts in a case dictate the award to be handed down was illustrated in the following cases: In Rowan v Minister of Safety and Security 2011 (6K6) QOD 44 (GSJ) damages of R50 000,00 were awarded for unlawful detention of 5 hours. In Gobuamang v Minister of Police 2011 (6K6) QOD 85 (ZAPPJHC) R70 000,00 was awarded for unlawful arrest and detention of 16 hours.

[155] In a yet unreported judgment by Hodes AJ delivered on 30 August 2012, Henry Foster v Minister of Safety and Security (Case No 10/43463), the court awarded the plaintiff the sum of R200 000,00 for unlawful arrest and detention. He had been incarcerated for four (4) days and denied the right to phone his people or a lawyer. It emerged during the trial that the investigations officer did not conduct investigations before he arrested the plaintiff but relied on say-so’s of persons he had arrested for certain crimes. The court further found that:

“Furthermore, the plaintiff did not constitute a flight risk and should not have been arrested and detained …

Such conduct by the defendant’s employees constituted an abuse of the process and more particularly section 50 of the CPA.”

This is in my view a finding what had happened in our case.

[156] The length of time a person is detained after arrest is not the only factor to be considered when determining damages. All the relevant and peculiar circumstances inherent in a particular case will inform what the appropriate quantum of damages should be. For e.g. in Minister of Safety and Security v Tyulu 2009 (5) SA 85 (SCA), R15 000,00 was awarded in respect of damages for the wrongful arrest and detention of a magistrate for 15 minutes.

[157] The arrest of the plaintiff herein was done with such reckless disregard for humanity and the law that it defies logic. A big or hefty man who has just been recently released from hospital with broken ribs having his arms and hands brutally pulled to his back and handcuffed there. Cries of pain and suffering were ignored. Attempts were made to press him like a sack of mielie meal inside a Ford Ikon micro sedan until the second defendant and his colleagues realised that he cannot fit therein. The following day he is again handcuffed and loaded into a police van or truck to be taken to a court situated in a complex separated from the police station by a fence. He could have been easily escorted there walking.

[158] I have set out in detail the circumstances under which he was detained in the police cells as well as the trauma he endured therein. All of this solely because some police official’s ego was sore or needed a boost. The malice inherent therein is palpable.

[159] As Meer J put it in Seria v Minister of Safety and Security and Others 2005 (5) SA 130 (C) at 151B:

“… 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.”

[160] The solatium for what happened to the plaintiff should be such that it serves as a warning to other police officers with similar intentions or character traits to think twice before conducting themselves in the manner the second defendant conducted himself and/or acted.

[161] I fully agree with what Hodes AJ said in the Henry Foster case at pp 20, para [16], when he quoted from Nugent JA in Minister of Safety and Security v Seymour (supra):

“[20] Money can never be more than accrued solatium for the depreciation 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 for 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.”

COSTS

[162] The general rule is that costs should follow the suit. In this case, the plaintiff has asked for an order of costs on a scale as between attorney and client.

[163] The assessment and awarding of costs lies in the discretion of the court and the court should exercise its judicial discretion properly in deciding what costs order to levy in a case.

[164] The first defendant is the political and administrative principal of the second defendant. It must shoulder the pain incurred by the indiscretions of its underlings and/or employees who erred in their actions and ways while acting in the course and scope of their employment with it. Under normal circumstances the first defendant ought to be held liable for the costs of suit jointly and severally with the second defendant. However the circumstances prevailing in this case are not normal circumstances.

[165] The second defendant’s actions appear to have been premeditated and/or calculated. Maybe he has or had knowledge that whatever indiscretions he perpetrated, his boss or employer, the first defendant will carry the can.

[166] It is my considered view and finding that the time has arrived where deliberate or grossly negligent indiscretions should result in the author of such misdeeds feeling the brunt of the court’s wrath. Although the first defendant should still be responsible for the payment of the general damages, it is my further considered view and finding that the second defendant should pay the costs of suit from his own pocket. The order of costs this Court ultimately makes should clearly circumscribe how the costs awarded should be recovered from the second defendant in his personal capacity. In such a way, it is my view that justice would not only have been done, but would have been seen to have been done.

ORDER

[167] The following order is made:

1. In respect of Claim 1, the defendants are ordered to pay the plaintiff the sum of R400 000,00 (Four Hundred Thousand Rand);

2. In respect of Claim 2, the defendants are ordered to pay the plaintiff the sum of R80 000,00 (Eighty Thousand Rand);

3. The sum total of the abovementioned two (2) claims in the amount of R480 000,00 shall be accompanied by an interest levy at the prescribed rate from date of this judgment to date of payment;

4. The second defendant is ordered to pay the costs of suit in his personal capacity on a scale as between attorney and client;

5. The first defendant is ordered and directed to pay out to the plaintiff the abovementioned costs and then recover same from the second defendant’s salary or emoluments at the rate and/or amounts its rules, regulations or directives prescribe.

6. A copy of this judgment shall be served on the second defendant’s reporting office/officer.

_____________________________

N F KGOMO

JUDGE OF THE SOUTH GAUTENG

HIGH COURT, JOHANNESBURG

FOR THE PLAINTIFF GERT J VAN NIEKERK

INSTRUCTED BY MILLS & FROENEWALD ATTORNEYS

VEREENIGING

TEL NO: 016 – 421 4631

PLAINTIFF’S JOHANNESBURG

ATTORNEYS J L VAN DER WALT ATTORNEYS

SUITE 1713, SCHREINER CHAMBERS

JOHANNESBURG

TEL NO: 011 – 472 1834

FOR THE DEFENDANTS ADV (MS) M SELLO

INSTRUCTED BY STATE ATTORNEY

NORTH STATE BUILDING

JOHANNESBURG

TEL NO: 011 – 330 7631

DATE OF TRIAL 14 SEPTEMBER 2012

DATE OF JUDGMENT 10 OCTOBER 2012

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