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IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

APPEAL CASE NO: A3124/2017

COURT A QUO CASE NO: 32041/2016

DATE: 9^th april 2019

In the matter between:

MOGANO: JOEL PAILE                                                                                         Appellant

and

THE MINISTER OF POLICE                                                                              Respondent

Coram: Tlhapi and Adams JJ

Heard: 29 January 2019

Delivered: 9 April 2019

Summary: Arrest – lawfulness of – whether aiding an escape from lawful custody is referred to in s 40(1)(b) of the CPA, read with schedule 1 – whether arresting officer reasonably suspected appellant of aiding and abetting a detainee to escape from lawful custody – failure by arresting officer to consider question of intention – offence, as  pleaded, not a schedule 1 offence – respondent failed to establish reasonable suspicion.

ORDER

On appeal from: The Johannesburg Magistrates Court (Additional Magistrate Riana Lerm sitting as Court of first instance).

(1) The appeal succeeds with costs.

(2) The respondent shall pay the appellant’s cost of this appeal.

(3) The order of the court a quo is set aside and replaced with the following order:

‘Judgement:

Judgment is granted against the defendant in favour of the plaintiff as follows:

(a) The defendant shall pay damages to the plaintiff in the sum of R55 000.

(b) The defendant shall pay interest to the plaintiff on the amount of R55 000 at the rate of 10.25% per annum (the prescribed rate of interest at the relevant time) from fourteen days after the 26^th of September 2017 to date of payment.

(c) The defendant shall pay the plaintiff’s costs of suit on the appropriate Magistrates Court scale.’

JUDGMENT

Adams J (Tlhapi J concurring):

[1]. The appellant, Mr Joel Paile Mogano, who was a warrant officer in the employ of the South African Police Service at the relevant time, sued the respondent, the Minister of Police, in the Johannesburg Magistrates Court for damages for wrongful arrest and detention. On the 26^th of September 2017 the Magistrates Court (Additional Magistrate Riana Lerm) held that the arrest was lawful and dismissed the appellant’s action with cost. The appellant appeals to this court against the whole of the judgment and the order of the Magistrates Court dated the 26^th September 2017.

[2]. The circumstances of the appellant’s arrest are as follows. On the morning of Sunday, the 1^st of May 2016, the appellant was responsible for and in charge of the holding cells at the Hillbrow Police Station, when one of the detainees escaped from custody during a routine inspection of the cells by a team of police officers. The appellant controlled access to and from the police cells, to and from the cells reception area. He also controlled access into and out of the reception area from the outside. He held the keys and the remote controls for the three doors which granted access to the reception area, the one to the cells and the other two to the outside. It was the duty of the appellant on the morning to man the cameras, which monitored the access through these three doors. In theory, any person, whether a police officer, a detainee or a member of the public, would only have been able to leave the cells and go to the outside via the reception area, where the appellant was stationed behind a counter, if allowed to do so by the appellant.

[3]. The escapee had reportedly requested permission from the police officer in charge of the routine inspection, Colonel Brand (‘Brand’), to go and make a phone call. The detainee was granted such permission by Colonel Brand and was allowed to proceed to the reception area, from where he escaped to the outside. Nobody knows what happened to the detainee after he was allowed to leave his cell. The last time he was seen was when he left his cell to go to the reception area to make his phone call. The police only became aware of the escape a few minutes after completion of the cell inspection, and the escape was confirmed when the police, including Colonel Brand, did a recount of the detainees in the three police holding cells.

[4]. The appellant was arrested, according to Lieutenant Colonel Mashele (‘Mashele’), who was the duty officer in charge of the Hillbrow Police Station on the day, because it was apparent that he (the appellant) ‘allowed’ the prisoner to escape. The appellant was the police officer responsible for guarding the exit doors to the outside from the cells via the cell reception area, so the Lieutenant Colonel reasoned, which means that he allowed the detainee to escape. The appellant was arrested at approximately 15:40 on the day. He was arrested only after the matter had been investigated from 07:00 to about 15:00. The appellant was charged with aiding and abetting an inmate in escaping from lawful custody. In his evidence Lieutenant Colonel Mashele testified that he arrested the appellant because ‘he is accountable for any escape’.

[5]. The appellant, who had been a police officer for a period of approximately 22 years at the time of his arrest, did not know of the escaped detainee until he was asked by Colonel Brand about the inmate he had sent to the appellant to make a phone call. He never saw this person on the day and he was completely unaware that this person, who was not escorted by a police officer as required by SAPS Standing Orders, had actually been sent to his reception area to make a call. The appellant’s evidence in the court a quo was that the detainee was never brought to him and he confirmed this to Lt Colonel Mashele when initially confronted with the fact that a detainee had escaped on his watch. The Lt Colonel’s evidence was that, because he was the custodian of the keys, they suspected the appellant of having aided the detainee to escape from the cells.

[6]. The appellant was arrested at about 15:40 and detained in a single cell, which apparently is reserved for persons ‘in authority’, for approximately two hours, whereafter he was released on bail by the police after his attorney had come to the police station and formally applied for bail on the appellant’s behalf. As regards the treatment he received and the prevailing conditions whilst he was detained in the cell, there appears to be nothing remarkable even on the evidence of the appellant himself. The sum total of his evidence relating to the aforegoing was as follows:

‘I did not feel very good because I thought that even the officers who I worked with, even those who are below me by rank, will take me the other way around. … I thought they were undermining me. Even the time when I was in the cells I lost my ability. I was now an ordinary person. I was no longer a police officer.’

[7]. I read this portion of his evidence to mean that the appellant understandably felt undermined and humiliated by his arrest. It cannot possibly be pleasant for a police officer to be arrested and detained at the very same police station where he is based as a law enforcer.

[8]. The appellant appeared in the Hillbrow Magistrates Court two days later on Tuesday, the 3^rd of May 2016, on which day the charges against him were withdrawn by the public prosecutor. His action for damages was instituted during September 2016.

[9]. The respondent pleaded that the arrest was lawful in terms of s 40(1) of the Criminal Procedure Act, 51 of 1977 (‘the CPA’), because the appellant ‘was attempting to commit an offence and / or committing an offence of aiding a suspect to escape from custody, in terms of the provisions of section 40(1) of Act 51 of 1977’. The defendant’s plea makes no reference to the provisions of any one of the subsections, notably section 40(1)(a), (b) or (c), which envisage three distinct bases on which a person may be arrested without a warrant.

[10]. In order to discharge the onus of justifying the arrest on these grounds (in that regard see: Zealand v Minister for Justice and Constitutional Development & Another, [2008] ZACC 3; 2008 (4) SA 458 (CC) at para 25; Minister of Safety and Security v Sekhoto & Another, [2010] ZASCA 141; 2011 (5) SA 367 (SCA) para 7), the respondent adduced the evidence of some of the police officers who were part of the team which did the routine inspection of and searched the holding cells, as well as the evidence of Lieutenant Colonel Mashele. The appellant also testified. If regard is had to evidence at the trial in the Magistrates Court it is clear that the relevant facts are by and large common cause and the factual disputes are few and far between.

[11]. I interpose here to mention that the respondent was not represented at the hearing of the appeal before us on the 29^th of January 2019. The reason for the non – appearance we understand to be that the defendant has resolved to abide the judgment of this court.

[12]. As regards a possible justification of the arrest based on s 40(1)(a), I am of the view that this aspect of the matter can be disposed of without much ado. Lt Colonel Mashele, who affected the arrest of the appellant, was not present when the offence was supposedly committed by the appellant. He was the duty officer on standby and in charge of the Hillbrow Police Station. He only arrived at the police station after being called by Colonel Brand after the latter had discovered that a prisoner had escaped from the police holding cells. It therefore cannot be said that the appellant had committed an offence in the presence of the arresting police officer.

[13]. Mr Mothibe, Counsel for the appellant, made submissions before us on two issues. Firstly, whether the respondent discharged the burden of proving that a warrantless arrest was permissible in terms of s 40(1)(b) of the CPA. Secondly, if so, whether the appellant discharged the burden of proving that the arresting officer exercised his discretion to arrest irrationally (regarding the onus resting on a claimant in this respect, see Sekhoto paras 45-53). In view of the conclusion I have reached on the first question, it will be unnecessary to consider the second.

[14]. The relevant portions of section 40(1) of the CPA provides as follows:-

‘40. Arrest by peace officer without warrant — (1). A peace officer may without warrant arrest any person—

(a) who commits or attempts to commit any offence in his presence;

(b) whom he reasonably suspects of having committed an offence referred to in Schedule 1, other than the offence of escaping from lawful custody;

(c) who has escaped or who attempts to escape from lawful custody;

(d) … …;

[15]. It is apparent that the only two subsections which find application in this matter are subsections (a) and (b). As I have already indicated, on the evidence before the Magistrates Court, Lieutenant Colonel Mashele, when arresting the appellant, could not possibly have acted in accordance with s 40(1)(a). By all accounts he was not present when the appellant allegedly aided the detainee in escaping from lawful custody. Section 40(1)(c) also does not find application in this matter. There is no suggestion that the appellant ‘escaped or attempted to escape from lawful custody’. The suspicion was that he had assisted another person to escape from custody, which, by no stretch of the imagination, can possibly bring his arrest within the confines of subsection (c). One needs look no further than the wording of the subsection to realise that this conclusion, namely that the arrest of the appellant without a warrant cannot possibly fall within the ambit of the subsection (c), is the correct one.

[16]. That then leaves the provisions of s 40(1)(b), and in order to bring the conduct of Lt Colonel Mashele within the ambit of that subsection, the respondent had to prove on a balance of probabilities that Mashele reasonably suspected the appellant of having committed the offence of aiding and abetting an escape from lawful custody. This entailed proof of two things: firstly, that Mashele in fact suspected the appellant of having committed this offence; secondly, that such suspicion rested on reasonable grounds. The second requirement calls for an objective assessment. The test is not whether a peace officer believes he has reason to suspect but whether, on an objective approach, he in fact has reasonable grounds for his suspicion (Duncan v Minister of Law and Order, 1986 (2) SA 805 (A) at 814D-E; W v Minister of Police, [2014] ZASCA 108; 2015 (1) SACR 409 (SCA) para 8).

[17]. However, before I consider these issues there is a fundamental aspect of the matter which appears to have been overlooked by the learned Magistrate when adjudicating the matter. That relates to whether or not the offence which the appellant was suspected of having committed is an offence referred to section 40(1)(b). The question is this: did Mashele suspect the appellant of having committed an offence referred to in schedule 1 of the CPA?

[18]. The offences referred to in schedule 1 of the CPA are the following: treason; sedition; public violence; murder; culpable homicide; rape or compelled rape as contemplated in sections 3 and 4 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007, respectively; sexual assault, compelled sexual assault or compelled self-sexual assault as contemplated in section 5, 6 or 7 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007, respectively; any sexual offence against a child or a person who is mentally disabled as contemplated in Part 2 of Chapter 3 or the whole of Chapter 4 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007, respectively; trafficking in persons as provided for in section 4 and involvement in the offence as provided for in section 10 of the Prevention and Combating of Trafficking in Persons Act, 2013; bestiality as contemplated in section 13 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007; robbery; kidnapping; childstealing; assault, when a dangerous wound is inflicted; arson; malicious injury to property; breaking or entering any premises, whether under the common law or a statutory provision, with intent to commit an offence; theft, whether under the common law or a statutory provision; receiving stolen property knowing it to have been stolen; fraud; forgery or uttering a forged document knowing it to have been forged; offences relating to the coinage; any offence, except the offence of escaping from lawful custody in circumstances other than the circumstances referred to immediately hereunder, the punishment wherefor may be a period of imprisonment exceeding six months without the option of a fine; escaping from lawful custody, where the person concerned is in such custody in respect of any offence referred to in this Schedule or is in such custody in respect of the offence of escaping from lawful custody; and any conspiracy, incitement or attempt to commit any offence referred to in this Schedule.

[19]. In addition to the aforegoing list, the schedule also provides for the arrest, without a warrant, of any person who commits torture or the related offence.

[20]. The closest the respondent could come to bringing the arrest of the appellant within the ambit of section 40(1)(b), read with schedule 1, relates to the offences listed towards the end of the schedule, which read as follows:

‘any offence, except the offence of escaping from lawful custody in circumstances other than the circumstances referred to immediately hereunder, the punishment wherefor may be a period of imprisonment exceeding six months without the option of a fine;

escaping from lawful custody, where the person concerned is in such custody in respect of any offence referred to in this Schedule or is in such custody in respect of the offence of escaping from lawful custody;

and any conspiracy, incitement or attempt to commit any offence referred to in this Schedule.’

[21]. A proper reading of the schedule, in my view, does not refer to the offence of which the appellant was suspected of having committed. The respondent did not plead that the person who escaped from lawful custody, and who it is alleged the appellant assisted in escaping, was in custody for an offence listed in schedule 1. There is also no evidence relating to the prisoner who escaped. It is not clear what offence he had committed which landed him in custody in the first place. This means that the respondent has failed to prove that section 40(1)(b) finds application. The appellant, on the version of the respondent, was not suspected of having committed an offence referred to in schedule 1 – not on the case pleaded by the Minister and not on the evidence presented by him during the trial of the matter.

[22]. Therefore, one of the jurisdictional requirements of section 40(1)(b) was amiss. The respondent has failed to prove that the arrest was lawful simply because the offence in question did not justify an arrest without a warrant. On this basis alone the appellant was entitled to a judgment in his favour on the liability aspect.

[23]. Even if I am wrong about this requirement, I am still of the view that the appellant ought to have succeeded with his damages claim for the following reasons.

[24]. The reason why the appellant was arrested was because he was the one who controlled access to and from the cells and the cells reception area. There was no way in which any person could exit or enter the cells and the reception area without such person being seen by the appellant, whose official duty it was to monitor and control the entry into and the exit from the cells. As Mashele puts it in his evidence:

‘So there is no way that he could escape through other means. … Mogano is the one who had the keys. A miracle could not have happened for the suspect who had escaped’.

[25]. There was not one shred of evidence that the appellant had assisted the prisoner to escape. Not one of the other police officers had seen the appellant actively facilitating the escape. No member of the SAPS had accused the appellant of having aided the escapee. The sum total of the reasons for the suspicion that the appellant had committed the offence was the assumption that because he should have seen the prisoner leaving the cells, he helped him to escape. This approach however, in my view, loses sight of the fact that there were a number of other police officers moving in and out of the cells. Also, and even more instructive, is the fact that the appellant, right from the start, protested his innocence and explained that he was not even aware that the detainee had been sent to the reception area to make a call.

[26]. I do not consider, in the circumstances, that Mashele could have formed the reasonable suspicion that the appellant aided the detainee to escape. While Mashele was not obliged to accept the appellant’s explanation, and while further investigation was warranted, he should not have inferred that the appellant, who was a police officer of 22 years standing at the time, had committed the offence of aiding an escape from lawful custody.

[27]. Furthermore, there is no indication in Mashele’s evidence that he applied his mind to the question of intention or even had a conception of the requirement of intention in relation to the crime of aiding an escape from lawful custody. He was clearly fixated on the fact that the appellant was possibly the only conduit through which the escapee could leave the cells. It may very well be that the appellant was negligent and derelict in his duties. However, this falls way short of the requirement of intention to commit a crime of assisting in the escape from lawful custody. For these reasons, I am of the view that the suspicion by Mashele would not have been based on reasonable grounds.

[28]. It follows that the respondent therefore failed to discharge the onus of justifying the arrest. It is thus unnecessary to consider whether the decision to arrest was not in any event vitiated by the other grounds.

[29]. It follows that the appeal relating to the liability aspect must succeed.

The Quantum of the Appellant’s Claim

[30]. This then requires me to deal with the quantum of the appellant’s claim, which I believe we can safely deal with.

[31]. The appellant has placed all of the evidence before the Magistrates Court which would have enabled that Court to quantify the appellant’s general damages. Importantly, the appellant was detained for approximately two hours, whereafter he was released on bail. There is no evidence that he was treated particularly badly and by saying that I do not intend to downplay the hurt the appellant would have felt by being arrested and placed in a police cell. What I mean is that he was not for example assaulted. There was no evidence that his single cell was unhygienic and uninhabitable and that he was deprived of access to ablution facilities. His evidence was that he felt that his dignity had been violated in that his subordinates would from then on not show him the necessary respect. He felt undermined by the arrest and humiliated.

[32]. It is trite that in assessing damages for unlawful arrest and detention, the court must take into account all the relevant facts and circumstances of the case and then determine the quantum of damages with reference to the facts and circumstances of the case which would include, amongst others, the age, sex, status, culture and lifestyle of the plaintiff, his social and professional standing as well as the circumstances, nature and duration of the arrest and detention and the publicity given thereto. There is no closed list of factors that must be taken into account.

[33]. In Minister of Safety and Security v Tyulu, 2009 (5) SA 85 (SCA), also reported at [2009] 4 All SA 38 (SCA) and [2009] JOL 23662 (SCA), Bosielo JA said the following at par [26] of the judgment:

‘In the assessment of damages for unlawful arrest and detention, it is important to bear in mind that the primary purpose is not to enrich the aggrieved party but to offer him or her some much needed solatium for his or her injured feelings. It is therefore crucial that serious attempts be made to ensure that the damages awarded are commensurate with the injury inflicted, However, our Courts should be astute to ensure that the award they make for such infractions reflect the importance of the right to personal liberty and the seriousness with which any arbitrary deprivation of personal liberty is viewed in our law. I readily concede that it is impossible to determine an award of damages for this kind of injuria with any kind of mathematical accuracy. Although it is always helpful to have regard to awards made in previous cases to serve as a guide, such an approach if slavishly followed can prove to be treacherous. The correct approach is to have regard to all the facts of the particular case and to determine the quantum of damages on such facts.’

[34]. We have had regard to a number of cases dealing with the amounts awarded for unlawful arrest and detention. In Minister of Safety and Security v Seymour, 2006 (6) SA 320 (SCA), also reported at [2007] 1 All SA 558 (SCA) and [2006] JOL 17531 (SCA), the SCA reduced the general damages awarded to the respondent from R500 000 to R90 000. The respondent was a 63 – year old man and had been unlawfully arrested and imprisoned for a period of five days. On appeal, the court took into account that he had free access to his family and doctor throughout his detention; that he had suffered no degradation beyond that inherent in being arrested and detained; that, after the first 24 hours, he had spent the remainder of his detention in a hospital bed; that, although the experience had been traumatic and distressing, it warranted no further medical attention after his release; and that whilst he had been diagnosed as suffering from depression and anxiety after the incident, it was not attributable solely to his arrest and detention.

[35]. In Louw and another v Minister of Safety and Security and others, 2006 (2) SACR 178 (T), the plaintiffs were detained for 20 hours and were awarded R75 000 each for damages.

[36]. In Olivier v Minister of Safety and Security and Another, 2009 (3) SA 434 (W), also reported at [2008] JOL 21471, the plaintiff was a senior police officer who was arrested by the police in full view of his colleagues and then detained at the same police station where he worked. He had claimed R150 000 for such arrest where he spent about six hours in custody. He was awarded R50 000. The facts in the Olivier case are simirlar to the facts in casu. Olivier was also a police officer arrested at the police station where he was stationed. He was detained for about four more hours than was the appellant in the matter before us.

[37]. In Van Rensburg v City of Johannesburg, 2009 (2) SA 101 (W), also reported at [2007] ZAGPHC 276; [2008] 1 All SA 645 (W) and [2008] JOL 21164, the court awarded R75 000 in damages for a 74 – year old retired accountant who was arrested by the Metro Police and spent about five hours in custody.

[38]. As indicated above, the appellant was 52 – years old at the time of his arrest. He had been in the SAPS for approximately 22 years. At the time of his trial in the Magistrates Court, he was apparently still in the employ of the SAPS. The case against him was withdrawn at his first appearance in court some two days after his arrest.

[39]. The appellant was in custody for two hours before he was released. There was no legal basis for his arrest and detention by members of the police who acted on assumptions. His explanation was rejected out of hand, unreasonably so, in our judgment. Our law regards the deprivation of personal liberty as a serious injury, and where the deprivation carries with it the imputation of criminal conduct of which there was no reasonable suspicion the injury is even more serious indeed.

[40]. Taking into account the facts of this case as a whole, the past awards and relevant case law, a fair and reasonable amount of damages to be awarded to the appellant is the sum of R55 000.

[41]. In the circumstances, we are of the view that the appellant’s appeal should succeed. Judgment should have been awarded against the respondent in favour of the appellant for the amount of R55 000, plus interest thereon and cost of suit. The judgment of the Magistrates Court therefore stands to be set aside and replaced with an order to that effect.

Cost

[42]. The general rule in matters of costs is that the successful party should be given his costs, and this rule should not be departed from except where there be good grounds for doing so, such as misconduct on the part of the successful party or other exceptional circumstances. See: Myers v Abramson, 1951(3) SA 438 (C) at 455.

[43]. I can think of no reason why I should deviate from this general rule. The appellant should therefore be awarded the cost of the appeal.

Order

In the result, I make the following order:-

(1) The appeal succeeds with costs.

(2) The respondent shall pay the appellant’s cost of this appeal.

(3) The order of the court a quo is set aside and replaced with the following order:

‘Judgment:

Judgment is granted against the defendant in favour of the plaintiff as follows:

(a) The defendant shall pay damages to the plaintiff in the sum of R55 000.

(b) The defendant shall pay interest to the plaintiff on the amount of R55 000 at the rate of 10.25% per annum (the prescribed rate of interest at the relevant time) from fourteen days after the 26^th of September 2017 to date of payment.

(c) The defendant shall pay the plaintiff’s costs of suit on the appropriate Magistrates Court scale.’

_______________________________

L R ADAMS

Judge of the High Court

Gauteng Local Division, Johannesburg

I agree,

__________________________

V V TLHAPI

Judge of the High Court

Gauteng Local Division, Johannesburg

 

HEARD ON:	29th January 2019
JUDGMENT DATE: FOR THE APPELLANT:	9th April 2019 Adv R S Mothibe
INSTRUCTED BY:	Dike Attorneys
FOR THE RESPONDENT:	No appearance
INSTRUCTED BY:	No appearance

 

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