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REPORTABLE

IN THE GAUTENG HIGH COURT OF SOUTH AFRICA

JOHANNESBURG LOCAL DIVISION

CASE NO: 23852/11

DATE:30/10/2013

In the matter between:

DALIWONGA VICTOR MBOVANE...........................................................Plaintiff

and

THE MINISTER OF POLICE...................................................................Defendant

JUDGMENT

MUDAU, AJ:

[1] In this action the plaintiff claims damages from the defendant for his alleged wrongful and unlawful arrest as well as detention.

[2] The plaintiff was arrested on 28 April 2011 by Constable Letswalo, a member of the South African Police Services, without a warrant, and detained on a charge of obstructing the police in the execution of their duties in terms of section 67 (1) (a) of the South African Police Service Act 68 of 1995 (the Act).

[3] The defendant admits the arrest but pleads that the arrest and the ensuing detention was lawful in terms of section 40 (1) (a) of the Criminal Procedure Act 51 of 1977 (the CPA) read with section 67 of the Act.

THE LAW

[4] Section 40 (1) (a) of the CPA provides:

“(1) A peace officer may without warrant arrest any person-

(a) Who commits or attempts to commit any offence in his presence…

(j) who wilfully obstructs him in the course of his duty.”

[5] Section 67 (1) (a) of the Act reads:

“(1) Any person who-

(a) Resists or wilfully hinders or obstructs a member in the exercise of his or her powers or the performance of his or her duties or functions or, in the exercise of his or her power or the performance of his or her duties or functions by a member wilfully interferes with such member or his or her uniform or equipment or any part thereof…shall be guilty of an offence and liable on conviction to a fine or imprisonment for a period not exceeding 12 months.”

[6] Chapter 2 of the Constitution of the Republic of South Africa Act No. 108 of 1996 headed Bill of Rights provides inter alia as follows:

“Freedom and Security of the person

12. (1) everyone has the right to freedom and security of the person, which includes the right –

(a) Not to be deprived of freedom arbitrarily or without just cause;

(b) Not to be detained without trial;

(c) To be free from all forms of violence from either, public or private sources;

(d) Not to be tortured in any way; and

(e) Not to be treated or punished in a cruel, inhuman or degrading way.”

[7] The only issue that falls to be decided is the lawfulness of the arrest and subsequent detention. Should the issue be decided in favour of the plaintiff, the quantum of damages needs to be assessed. There was no separation of issues in terms of rule 33 (4) of the Uniform Rules of this Court.

[8] It is trite that an arrest and detention is prima facie unlawful. The defendant admits the arrest and detention and accordingly bears the onus to establish that the arrest was lawful. In Minister of Law and Order and Others v Hurley and Another¹, it is stated thus:

“An arrest constitutes an interference with the liberty of the individual concerned, and it therefore seems to be fair and just to require that the person who arrested or caused the arrest of another person should bear the onus of proving that his action was justified in law.”

[9] In order to succeed in a defence based on section 40(1) ss (a) and (j) of the CPA the defendant is required to establish:²

i) the arrestor is a peace officer;

ii) the arrestor in fact entertained a suspicion;

iii) the suspicion which he held was that the suspect (the arrestee) had committed an offence which is referred to in Schedule 1 of the CPA; and

iv) the suspicion rests upon reasonable grounds.

THE EVIDENCE

[10] The version by Constable Letswalo, who testified on behalf of the defendant, is essentially as follows. During the evening of the 28 April 2011 and at approximately 21h30, he was on duty searching for wanted suspects connected to crimes mentioned in a police docket with case no. 1229/4/11. With him were Sergeant Rangwanasha and Constable Motalane. They went to the complainant’s house and picked her up. Then they went to a first suspect’s house in La Rochele. The first suspect was arrested and detained.

[11] They continued the search for the plaintiff’s son, Mcebisi. Upon arrival they found the plaintiff who at that stage was unknown to them, at the gate. After explaining to the plaintiff the reasons for their visit, they showed him their appointment certificates. The plaintiff however became arrogant and blocked the gate. The plaintiff thereafter shouted “Mcebisi run away, the police are coming to arrest you”.

[12] The police managed to push the plaintiff aside and accessed the premises. When they ran to the back of the house they observed an unknown man jumping the parameter wall into the next property. They returned to the gate where the plaintiff was. After warning the plaintiff not to interfere with their duties, they drove off in search for other suspects.

[13] The police arrived at a third residential address, situated in a street opposite to the plaintiff’s residence. To their surprise, they found the plaintiff standing at the gate in the company of an unidentified woman. Upon seeing them, the plaintiff shouted obscenities and blocked the gate to deny them access into the yard. They warned the plaintiff for the second time not to interfere with their duties. The plaintiff however persisted with his conduct. They decided to arrest him for obstructing them in the course of their duty.

[14] The plaintiff resisted being cuffed. Back up was called, and a police van promptly responded. The plaintiff was handcuffed and put into the van. The plaintiff was taken to Booysens police station where he was formally charged for obstructing them in the execution of their duties and his constitutional rights were explained to him.

[15] At a later stage people arrived at the police station with the plaintiff’s son, Mcebisi in their company. It was only then that he became aware that Mcebisi had previously been arrested but on a different case.

[16] In cross-examination, Constable Letswalo testified that Mcebisi was however not placed under arrest but released as it was explained that he had already been arrested for a similar incident. Letswalo could, however, not furnish the case number in which the plaintiff’s son was a suspect. When he was asked why Mcebisi was not arrested as he was a wanted suspect, Letswalo testified that they warned him to return to the police station the next day.

[17] He was asked whether he had verified the said docket, since April 2011. He explained that he did not do so as he is not the investigating officer in the matter. He maintained however that Mcebisi was a wanted suspect in two separate case dockets.

[18] According to Letswalo, the suspect who was arrested shortly before the plaintiff was charged, was however, released on warning. When he was asked why the plaintiff was not dealt in the same manner, he responded that as he was the complainant, the decision was not his to make as the docket had been assigned to someone else for a decision.

[19] He conceded however that he never saw the second docket in which the plaintiff’s son was a wanted suspect except for case no 1229/4/11 in which a decision was taken not to prosecute. The prosecutor declined to prosecute the plaintiff who remained in detention from 28 April 2011 to 2 May 2011.

[20] It was put to Letswalo that there was no second docket in which Mcebisi was a wanted suspect as it was never discovered despite numerous requests therefore by the plaintiff. Letswalo maintained that he saw the copies of both dockets shortly before he took the witness stand.

[21] Letswalo was asked whether the police proceeded in search of the third suspect. He indicated that they did not as “they thought” the plaintiff had already told the suspect to run away. Letswalo could not explain why the plaintiff was not taken to court on Friday the 29^th April 2011 as statements regarding his arrest were already taken. It was put to Letswalo, that besides the one other suspect, the complaint in respect of case no 1229 was not with the police at the plaintiff’s residential address. Letswalo maintained however that she was present.

[22] It was put to him that Mcebisi never presented himself to the police on the night of the plaintiff’s arrest, but the following morning. Letswalo responded that the complainant Mrs Gumbi who would have identified Mcebisi had already left the police station by the time Mcebisi arrived 45 minutes later. That concluded the version by the defendant regarding the plaintiff’s arrest.

[23] Sergeant Mashamaite (Mashamaite) testified on behalf of the defendant as follows. He was on duty at the Booysens police station on the night of the plaintiff’s arrest. His colleague, the arresting officer asked him to take the plaintiff’s warning statement in terms of 35 (1) of the Constitution of the Republic of South Africa Act No 108 of 1996.

[24] He did not explain to the plaintiff his rights as envisaged in section 35 (1) of the Constitution as this had already been done by his colleagues. The plaintiff had a choice whether to make a statement or not. The plaintiff however chose to make a statement which he reduced in writing (page 55 of the indexed papers). The said statement reads as follows:

“On 2011/04/28 at about 21:30, police arrived at my place. They were looking for my son and I then became worried because the previous day they were taken by police. I then stopped the police from entering while my son was finding his way out through the back. After my son managed to escape, I then let the police got inside.” sic.

In cross-examination, it was put to Sergeant Mashamaite that the plaintiff was not the author of the statement referred to above. He was merely requested to sign by the arresting officers. Mashamaite disputed this.

[25] When Mashamaite, was asked why the statement was not signed, he responded that it was the plaintiff’s choice whether to sign each page of the warning statement or not. The defence case was thereafter closed.

[26] The plaintiff testified about the circumstances leading to his arrest as follows. The family was preparing supper when they heard an aggressive knock at their gate. He went outside to investigate. There were three (3) men outside. A fourth person remained inside an unmarked police car parked nearby.

[27] The three men who were outside introduced themselves as police officers. They wanted his son, Mcebisi, then 23 years of age, for an assault incident that occurred in the neighbourhood. He explained to the police that his son had since been arrested for that incident but was released. He told the police that Mcebisi was not home. The police told him not to take over their job. They went inside the house to search for Mcebisi but were not successful as Mcebisi was not home when the police arrived. The police then left.

[28] The plaintiff decided to make further enquiries from a certain neighbour whose son was also arrested in respect of the same incident. He wanted to know from the neighbour what happened to the money which was contributed by the affected parents to secure their sons’ release on bail in that case. This bothered him as he was yet to see his son since his release.

[29] It was whilst he was speaking to his neighbour at the gate when the same police officers arrived. The police accused him that he was there to warn a wanted suspect to run away from them. The plaintiff refuted this accusation.

[30] The police informed him that he was under arrest. When they tried to put him into a van he resisted until police back-up was called. It is the plaintiff’s version that he resisted arrest as he had not committed any crime. By then people were out in the street looking on. He was pepper-sprayed and handcuffed. He remained in handcuffs from the scene of arrest to Booysens Police Station. When he complained about the handcuffs he was told that it was necessary because he was stubborn and disrespectful. From Booysens police station and whilst still in handcuffs, he was transferred to Johannesburg Central Police Station and detained in a cell. The conditions of the detention cell in Johannesburg Central were unbearable. The cell was dirty and smelly.

[31] It is further the plaintiff’s version that he was not the author of the warning statement allegedly made by him. All he did was to sign it when the statement was brought to him in the cells by the arresting officer, Letswalo. The statement was not explained to him.

[32] The plaintiff’s son Mcebisi Majola (whom I shall conveniently refer to as Mcebisi), testified and confirmed the plaintiff’s evidence that he was not home that night. He had gone out with his girlfriend and other friends. He only learnt about his father’s arrest on his return the following day. He thereafter went to the Booysens Police Station to hand himself over as he had heard from his mother that the police had been looking for him.

[33] After presenting himself to the police, he was however not arrested. A police officer to whom he presented himself asked him to go to court and explain himself to a public prosecutor. He did so on Tuesday, 2 May 2011. His father was however not brought to the Johannesburg Magistrate’s Court. Later, around midday, he found him in the Johannesburg Central Police Station. When he enquired about his father’s release, he was referred back to Booysens police station. That concluded plaintiff’s case.

[34] When a crime is committed in the presence of the police, it is necessary for a “reasonable suspicion” to exist. Either the accused did or did not commit a crime. The question is whether his conduct was on a balance of probabilities, equal to obstruction.

[35] An arresting police officer who relies on Section 40 (1) (j) has to prove the existence of jurisdictional facts justifying the arrest that ensued. Whether an arrestee acted wilfully in obstructing the execution of a duty of a peace officer must be considered objectively. The obstruction must consist of some or other physical conduct, a positive action although conduct need not always be positive.

[36] In Zealand v Minister of Justice and Constitutional Development and Another³, the court stated that:

“The Constitution enshrines the right to freedom and security of the person, including the right not to be deprived of freedom arbitrarily or without just cause, as well as the founding value of freedom. Accordingly, it was sufficient in this case for the applicant simply to plead that he was unlawfully detained. This he did. The respondents then bore the burden to justify the deprivation of liberty, whatever form it may have taken.”

[37] In Minister of Police v Du Plessis⁴, the following is said:

“Our new Constitutional order, conscious of our oppressive past, was designed to curb intrusions upon personal liberty which has always, even during the dark days of apartheid, been judicially valued, and to ensure that the excesses of the past would not recur. The right to liberty is inextricably linked to human dignity. Section 1 of the Constitution proclaims as founding values, human dignity, the achievement of equality and the advancement of human rights and freedoms. Put simply, we as a society place a premium on the right of liberty.”

[38] Since it is trite law that an arrest and detention must be legally justified in accordance with the Constitution and the applicable law whether common law or statutory, it remains to be determined in the circumstance of this case whether this was justified as the defendant alleges.

[39] It is not in dispute that a decision was made not to prosecute the plaintiff even before his appearance in court. I turn to assess the credibility of the witnesses who testified for the respective parties.

PROBABILITIES

[40] Against the background referred to the police had no warrant of arrest when they went to the plaintiff’s place of residence in search of his son. I find it highly improbable that the arresting officer Letswalo had the docket in his possession. If he had such a docket it was likely to contain an entry that Mcebisi had been arrested and was already released on warning. It is doubtful whether there was a second docket registered in respect of which Mcebisi was a wanted suspect as alleged by police officer Letswalo. If there was, the said docket could and would have been discovered on request.

[41] The probability remains that the police went to the plaintiff’s home address to look for his son in respect of a matter in which he was already released on warning pending trial. Mcebisi had no reason to flee from the police as he was already out of custody and on warning. Had he been home on the night of the plaintiff’s arrest but fled from the scene, it hardly makes sense that 45 minutes later, he presented himself at Booysens Police Station to Letswalo who decided not to arrest him. Letswalo gave the excuse that he could not have detained Mcebisi in the absence of the complainant, Gumbi, who would have identified him. This explanation makes no sense as there were other people including the plaintiff who could easily have verified Mcebisi’s identity to him. Besides, positive identification in a form of an identity book could easily have been requested from Mcebisi.

[42] According to Letswalo, the police were able to brush the plaintiff aside when he tried to block their access into the premises earlier. The police at that stage took a decision not to arrest the plaintiff for obstructing them in the execution of their duties. The reasons for the arrest of the plaintiff at that stage the police did so which is relevant for purposes of this matter, remain obscure. It is not clear whether the gate the plaintiff is alleged to have blocked is a pedestrian one or a motor vehicle gate. Either way, it is not clear from Letswalo’s testimony how the plaintiff physically managed to block the gate to prevent three police officers from accessing the premises. Since the police had managed to push the plaintiff aside and entered his premises earlier on, Letswalo failed to explain why the police did not do so when they encountered the plaintiff at the second address.

[43] To compound the issue further, there was no attempt to search for the unnamed suspect they were looking for even after the plaintiff was placed under arrest. The suspicion that the police had that the plaintiff had warned a wanted suspect to run away is not borne out by the evidence led before court. That suspicion remains unreasonable as it was then.

[44] I find that the version by the arresting officer, Letswalo, a single witness, with regard to the circumstances leading to the plaintiff’s arrest as unpersuasive, not corroborated, neither credible nor reliable. His version remains inherently improbable.

[45] The plaintiff’s version was, on the material issues in dispute corroborated by his son, Mcebisi. This pertains particularly to the allegation that Mcebisi was not home when the police arrived. Secondly, that Mcebisi contrary to what the police witness testified only presented himself to the police the next day.

[46] The version by the plaintiff that he only went outside to investigate the source of the noise at the time and date of his arrest, is in my view consistent with the probabilities. Contrary to what this court was told by Letswalo, there is no reason why the plaintiff would be found standing at the gate of his property at that time of the night for no apparent reason.

[47] Both the plaintiff and his son made favourable impressions on the mind of this Court. I find that the plaintiff and his son were credible witnesses whose versions can and are relied upon. The plaintiff readily admitted that he resisted arrest on the night in question as he believed he had not committed any crime. In a Constitutional democracy such as ours, the plaintiff was justified in resisting arrest which I find to have been unlawful.⁵

[48] The evidence on behalf of the defendant did not present a clearer factual situation which arose for the peace officer to exercise his powers of arrest. It appears to have been arbitrary and for no lawful reasons.

[49] How to effect an arrest is fully regulated by legislation. An arrest is only lawful if it is carried out in accordance with statutory requirements.⁶ The absence of reasonable grounds for the police conduct is borne out by the fact that there was no subsequent prosecution that followed. The discretion to arrest the plaintiff in this matter was improperly exercised, and so was the decision to look for the plaintiff’s son without a warrant. I am satisfied that the evidence before me clearly establishes that the plaintiff was unlawfully arrested.

[50] This Court is inclined to believe that the motive was none other than to harass or punish the plaintiff and his son. This cannot enjoy legal protection.⁷ It accordingly follows that the detention that followed was equally unlawful⁸.

[51] In Hofmeyr v Minister of Justice and Another⁹ King J said the following:

“even where an arrest is lawful, a police officer must apply his mind to the arrestee’s detention and the circumstances relating thereto and that the failure by the police officer properly to do so, is unlawful. It seems to me that if a police officer must apply his or her mind to the circumstances relating to a person’s detention, this includes applying his or her mind to the question of whether the detention is necessary at all. This, it seems to me, and in my very respectful opinion, enables one to get a better grip on an issue which has been debated in the law reports in recent cases.”

[52] In this matter, the plaintiff was subsequent to his arrest and detention, not taken to court for his first appearance on the 29 April 2011 for reasons that is unknown. The defendant tendered no evidence to explain the reasons why this was the case. It is common cause that only the statement of the arresting officer Letswalo was obtained. In my view, there is no reason why the statements of the two other police officials who were with Letswalo were not taken on the same date. The result thereof was, the plaintiff remained in custody for the entire weekend including 1 May 2011 which was a public holiday. It is common cause that the plaintiff was only released about midday on 2 May 2011 without having made an appearance in court.

[53] It is trite law that justification for the detention after an arrest until a first appearance in court rests on the police.¹⁰ As Navsa JA stated:

“So for example, if shortly after an arrest it becomes irrefutably clear to the police that the detainee is innocent, there would be no justification for continued detention.”

[54] In the instant case, there is no justification why the plaintiff was kept in custody from the 28 April until his release on the 2 May 2011. The way he was held captive in handcuffs whilst in a police van to his final destination at the Johannesburg Central Police Station was unwarranted. To my mind, this suggests that the police were out to punish the plaintiff.

QUANTUM OF DAMAGES

[55] I turn to deal with the aspect of quantum. Regarding quantum, the plaintiff is asking for damages in the amount of R350 000 for the unlawful arrest and detention. The attorney for the plaintiff contended that an amount of R175 000.00 would be just. Counsel for the defendant submitted that an amount of R80 000.00 would be appropriate under the circumstances.

[56] In Minister of Safety and Security v Seymour¹¹, Nugent J A stated the position as follows:

“The assessment of awards of general damages with reference to awards made in previous cases is fraught with difficulty. The facts of a particular case need to be looked at as a whole and few cases are directly comparable. They are a useful guide to what other courts have considered to be appropriate but they have no higher value that that.”

Previously decided cases on the subject of the quantum of damages regarding cases of this nature should therefore, only be used as guidelines. Each case has to be dealt with on its own peculiar merits. It is trite law that a trial court has discretion what in the circumstances, is a just and fair award for a damages claim¹².

[57] In this matter the plaintiff who is an employed father of three could not attend work as a result of this incident. The plaintiff was denied his right to freedom of movement for a little over four days. He suffered humiliation and impairment of his dignity when he was unlawfully arrested with a crowd of people watching on.

[58] By way of example, in Minister of Safety and Security v Seymour¹³, an amount of R90 000.00 was awarded. In Kwenda v Minister of Safety and Security¹⁴, an amount of R70 000.00 was awarded as damages for unlawful arrest and detention wherein the arrestee was detained for 44 hours. In Henry Foster v Minister of Safety and Security,¹⁵ an amount of R200 000.00 was awarded wherein the arrestee was detained for 4 days. In Minister of Safety and Security v Seymour¹⁶, Nugent JA stated at para [20] as follows:

“Money can never be more than a crude 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 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.”

[59] In my view a fair and just award in damages as a result of the plaintiff’s unlawful arrest and detention is R90 000 00. It follows that the costs should follow the outcome.

CONCLUSION

[60] In the result judgment is granted in favour of the plaintiff against the defendant for:

1. Payment to the plaintiff the sum of R90 000.00 as damages.

2. Interest on the aforesaid sum at 15.5% interest from date of judgment to date of payment.

3. Costs of suit.

_____________________________________

T P MUDAU

ACTING JUDGE OF THE SOUTH GAUTENG

HIGH COURT, JOHANNESBURG

Dates of hearing: 10-11 September 2013

Date of Judgment: 30 October 2013

For the Plaintiff: B L Mzamo

Instructed by: Mzamo Attorneys

For the Respondent: Adv. M M Zondi

Instructed by: State Attorney

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