---

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

CASE NO: 65732/2018

In the application between:

EUGEN MATSHETE                                                                               Plaintiff

and

THE MINISTER OF POLICE                                                                Defendant

JUDGMENT

This matter has been heard in terms of the Directives of the Judge President of this Division dated 25 March 2020, 24 April 2020 and 11 May 2020. The judgment and order are accordingly published and distributed electronically. The date and time of hand-down is deemed to be 14h00 on 20 September 2021.

LENYAI AJ

[1]        This is an action for damages arising out of an unlawful arrest wherein the plaintiff is suing the defendant for an amount of R 500 000.00.

[2]        It is trite that the onus rests on the defendant to justify an arrest. In the matter of Minister of Law and Order v Hurley 1986 (3) SA 568 (A) at 589E-F the court stated that “An arrest constitutes an interference with the liberty of the individual concerned, and it therefore seems fair and just to require that the person who arrested or caused the arrest of another should bear the onus of proving that his action was justified in law.”

[3]        Adv Moshodi who appeared on behalf of the defendant correctly conceded that as the defendant has admitted the arrest and detention, the onus was therefore on her to justify such arrest and detention.

[4]        The common cause facts are as follows:

4.1      the plaintiff was arrested without a warrant and charged with the offence of theft and house breaking.

4.2      The plaintiff was arrested by Constable Philemon Lebea and Constable Peter Mulwedzi who are members of the South African Police Services,  acting in the scope of their employment.

4.3      The plaintiff was charged and detained at the Hercules Police Station.

4.4      The Plaintiff was transferred to the Pretoria Central Police Station. 

[5]        The facts in dispute are as follows :

5.1      The arrest was malicious and unlawful.

5.2      A warrant of arrest was required to effect arrest.

5.3      The time and  date of the arrest as well the time of release from prison.

5.4      Whether the offence is a schedule 1 offence.

5.5      Whether the plaintiff was a registered student at Tshwane University of Technology.

5.6      Whether the plaintiff was a registered resident of Ekhaya Junction student accommodation.

5.7      Whether the plaintiff missed a test for EUC10AT module and had to repeat the module as a result of the arrest.

5.8      Whether the plaintiff was in the company of his girlfriend and cousin at the fresher’s ball, and

5.9      The damages suffered by the plaintiff.

[6]        The defendant called one witness Sergeant Philemon Lebea, who at the time of effecting the arrest was a constable. He testified that he and Constable Peter Mulwedzi were the arresting officers and he was also the investigating officer in this matter.

[7]        He testified that on the 18^th September 2017 he was allocated two dockets for further investigation of the crime of housebreaking and theft of two laptops and a cell phone. The two dockets related to the same offence of housebreaking and theft with two different complainants. Mr Lucky Bongani Nkosi was the complainant in case No 302/09/2017 and Mr Leonard Ofentse Sikwane was the complainant in case No 335/08/2017.

[8]        Sergeant Lebea further testified that the commission of the offence in respect of both cases took place at Ekhaya Junction Student Accommodation, at approximately the same time while both complainants were at the fresher’s ball.

[9]        He testified that the two crimes were linked as per the directions given in the investigation diary. The instructions were that he was to conduct  investigations in relation to the two cases and report back to his authorities. The investigation diary entry dated 17 September 2017 in respect of case 302/09/2017 records the complainant as Mr Lucky Bongani Nkosi. The investigation diary also recorded Mr Mac-Noel Bobo Ndlovu who was residing at Ekhaya Junction as a witness in case 302/09/2017.

[10]     The instructions in the investigation diary were the following:

            10.1    further investigation;

            10.2    visit the scene of the crime;

            10.3    interview the complainants and witnesses;

            10.4    trace the suspect;

            10.5    involve sector manager in this regard and

            10.6    B/F 24.

[11]     Constable Lebea testified that he visited the crime scene on the 19 September 2017 to conduct further investigations. Mr Nkosi who is the complainant in case No 302/09/2017 was attending lectures and he found Mr Mac-Noel Bobo Ndlovu, the witness in the said case. He also found the other complainant in case No 335/08/2017, Mr Leonard Ofentse Sikwane and he proceeded to interview both of them.

[12]     Mr Mac-Noel Bobo Ndlovu identified the plaintiff as the suspect and he made a written statement that he caught him in the act of committing the offence of house breaking and theft. In his statement he recorded that he witnessed the plaintiff fiddling with the door of Mr Nkosi with a wire and when he asked him what he was doing, he replied that he was trying to make quick cash.

[13]     Mr Ndlovu then took him to Mr Leonard Ofentse Sikwane, the complainant in case No 335/08/2017,  who made a statement that when he came back from the fresher’s ball in the early hours of the 16^th September 2017 at around 03:00, he discovered that his room had been broken into and his laptop was missing. He stated that he suspected the plaintiff as he had been seen by other students with his laptop.

[14]     Sergeant Lebea further testified that Mr Ndlovu, the witness, took him to the room of the plaintiff’s girlfriend and found the plaintiff there. He was advised by the witness and Mr Sikwane that the plaintiff was a squatter and he was not a resident at Ekhaya Junction Student Accommodation. The witness pointed the plaintiff out to him and an arrest was effected. He gave the plaintiff reasons for his arrest and he read his rights to him. He testified that he was concerned that as the plaintiff was not a resident at Ekhaya Junction Student Accommodation, he might struggle to find him in the future if he didn’t arrest him at that time. He testified that he had asked the plaintiff to point out his room and he could not.

[15]     Sergeant Lebea testified that at the time of making the arrest he had a reasonable suspicion that the plaintiff had committed the crime of house breaking and theft, which is a schedule 1 offence. He had two complainants and one of them suspected the plaintiff as the perpetrator because other students had seen him with his laptop and a witness who caught him in the act of trying to open the locked door of  the other  complainant and he was pointed out by the witness.

[16]     Sergeant Lebea testified that the plaintiff was arrested on the 19^th September 2017 as confirmed by the arrest statement and taken to the Hercules Police Station. He was booked into the holding cells on the same day as per the cell register and the notice of rights signed by the plaintiff. The plaintiff was transferred to Pretoria Central Prison for overnight accommodation and meals as the Hercules Police station only has holding cells.

[17]     Constable Lebea testified that he interviewed the plaintiff the following day and took his statement. The plaintiff signed the statement and in the statement he indicated his address as PH 2090 Phomolong, Saulsville and that he was a student. He was also charged on the 20^th September 2017. The mother of the plaintiff also confirmed the residential address of her son as PH 2090 Phomolong, Saulsville

[18]     Constable Lebea testified further that he tried to find the other students who had seen the plaintiff with Mr Sikwane’s laptop but he could not get hold of them or they would not come forward. The prosecutor made a note on the docket, nolle prosequi, which refers to a prosecutorial decision to decline to prosecute a case. The plaintiff was then released and set free in the 20^th September 2017.

[19]     During cross-examination Sergeant Lebea’s testimony was tested by Adv Letswalo, the legal representative of the plaintiff and he stood firm on his testimony in chief. He however conceded that he had been advised by the witness, Mr Mac-Noel Bobo Ndlovu and the Mr Sikwane, the complainant in case no 335/08/2017 that the plaintiff was squatter and not a registered resident at Ekhaya Junction, he did not verify with the management of the student residence. He also conceded that he did not interview the plaintiff on the day of the arrest and only interviewed him a day later after he had spent a night in prison. He further conceded that he had not been able to interview the other witnesses mentioned by Mr Sikwane in his statement and he had also not interviewed Mr Nkosi the complainant in case No 302/09/2017. It was also established during cross-examination that the time he recorded in his statement as the time of arrest is factually incorrect as he could not have made the arrest at the same time he wrote his statement at the police station which is 15 minutes away from the place of arrest. He clarified during re-examination that the time of writing the statement was 10:40 and the time of making the arrest was earlier at 10:25.

[20]     The plaintiff gave evidence in support of his claim and called further two witnesses who testified in his favour.

[21]     It is noteworthy to state that the legal representatives of the plaintiff uploaded documents on caselines while the trial was in progress in complete disregard to the rules of court. The court ruled that the information so uploaded must be removed from caselines and the plaintiff must confine himself to giving evidence that has been pleaded. The plaintiff’s legal representative also requested to amend their pleadings while the trial was in progress. The defendant objected as a substantial application had not been brought before court and the plaintiff was attempting to close the gaps in their case. The  defendant’s objection was upheld.

[22]     The plaintiff testified that he was unlawfully arrested and detained  on the 18^th September 2017 by members of the South African Police Service and charged with the crime of housebreaking with intent to steal and theft. The arrest took place in full view of other students and his friends.

[23]     The plaintiff testified that at the time of his arrest he was a student at Tshwane University of Technology (TUT) in Pretoria and he was unemployed. He further testified that he was a resident at Block 25 Ekhaya Junction Student Accommodation which is a mixed residence of male and female students and the National Student Financial Aid Scheme (NSFAS) was paying for his accommodation, tuition and he would also receive a monthly allowance. On the day he was arrested the police found him sleeping in his room with his girlfriend.

[24]     He testified that on the 15^th September 2017 there was a fresher’s ball at TUT to welcome the new students and he planned to go there with his friends, Bobo ( the witness) and Boitumelo. He went over to their residence which was a block away from his to enquire if they were still going together and he was told that they were no longer going with him. Boitumelo accused him of making advances on his girlfriend and they had a heated argument. Thereafter he left them and went back to his residence. He later went to the fresher’s ball around 15:00  accompanied by his girlfriend and his cousin and returned the following morning around 03:00 to sleep.

[25]     The plaintiff further testified that on Sunday morning Mr Bobo Ndlovu (the witness) came to his room and told him that there were items stolen from his commune and because he was at their commune on Friday he should know what had happened. He told him he does not know what he was talking about and Mr Bobo Ndlovu told him that he will tell people what he had done and left. On Monday the police knocked at his door and told him that he was being accused of theft and they were taking him to the police station for further questioning. He was transferred to Pretoria Central Prison and was told that he will appear before a Magistrate the following day. The following day, the 19^th September 2017,  other prisoners were taken to court but he was told that as he had not yet been charged he cannot appear before a Magistrate. He was charged in the afternoon and the following day in the morning he was told that he will appear before a magistrate. While he was in the holding cells he was called out, made to sign some forms and released.

[26]     On the 20^th September 2017 in the afternoon he was released without making his first appearance before a Magistrate and he was told to go home. The plaintiff testified that he remembers the date clearly as he had a test that day which he could not write as he had just been released from prison. He was heartbroken and traumatised for being incarcerated for a crime he had not committed. He found prison to be a bad place which was dirty and crowded. While there he could not eat or bath. He testified that his relationship with his friends soured as he could not understand why they would falsely accuse him of something he did not do and cause him such pain.

[27]     The plaintiff testified that he suffered damages as a result of the unlawful arrest. He failed his module as he could not focus on his studies due to the trauma he endured and had to repeat the module in 2018, his health deteriorated, he  developed a rush, sore throat and had headaches. He further suffered from emotional shock and trauma. He was humiliated in front of his fellow students and he is now labelled a criminal by the entire university community. He was chased away from residence because other students did not want to stay with a thief. He was now forced to commute between his home in Saulsville and the University which caused him financial strain.

[28]     The plaintiff further testified that he was examined by a traditional healer, who is a relative of his and prescribed some herbs to help him ease his medical condition.

[29]     During cross examination the plaintiff could not explain why his evidence in chief differed substantially from his pleaded case in his particulars of claim. In his evidence in chief he testified that he was arrested on the 18^th September 2017 and released on the 20^th September 2017. He said he remembers the date of his release because that is the day he was supposed to write a test on EUC 101AT ( End User Computer) and as a result of missing the test he failed and had to repeat  the module the  following year. However in his pleadings he stated that he missed a test on EUC 101AT ( End User Computer) which he was supposed to write on the day of his arrest despite informing the arresting officers of same. Plaintiff pleaded that he was refused accommodation on campus because he did not pass all his modules however in his evidence in chief he testified that he was kicked out of the residence because other students did not want to stay with a thief.

[30]     Plaintiff further testified in his evidence in chief that he went to the freshers ball with his girlfriend and his cousin however in his pleadings he stated that he met the complainant and others along the way to the freshers ball which event the plaintiff attended with other students. He stated that it could be a typing error that no reference was made in his pleadings about him being in the company of his girlfriend and cousin at the ball. Plaintiff was quizzed on why he had not placed before court his identity document, proof of registration as a student at TUT, proof of residence at Ekhaya Junction and proof of the test that he missed. His answer was that he gave the documents to his attorneys of record and he does not know why they had not placed the documents before court and said it was an error on the part of his attorneys. Plaintiff however indicated that the proof of registration as a student at TUT during 2017 was attached to his pleadings which clearly indicated his name, identity number and the registered courses and subjects. He also testified that he had lost his identity document.

Plaintiff did not prove to the court that he was a registered resident at Ekhaya Junction and his conflicting versions of the reason of being expelled from residence makes it difficult for the court to rely on his version that he was a registered resident at the student accommodation.

[31]     The plaintiff when he was confronted with the police documents indicating the date of arrest as the 19^th September 2017 his response was that the date recorded by the police was incorrect. Plaintiff also could not explain why he had not placed any evidence before court to compute his damages especially his psychological, and medical report as well as his transport costs. His response was that he had consulted a traditional healer who diagnosed him with having bad spirits, back pain, sores on his body and no written report was given to him. He also consulted a doctor at a public clinic  who diagnosed him with fever and blocked nose and no written report was given to him. He used taxis to commute from his home to TUT and no receipts are issued in taxis.

[32]     The plaintiff called his first witness Mr Siseko Tshangele. He testified that he is a friend of the plaintiff and is also a final year student of Business Management and Entrepreneurship at TUT. He has been friends with the plaintiff since 2016 when they were both first year students. He testified that in 2017 the plaintiff stayed with his girlfriend in his room however she had her own room which was a double room which she shared with another female student. He met the plaintiff at the fresher’s ball and he was in the company of his girlfriend and his cousin. They were drinking alcohol together until around 02:30 in the morning when he left them to go to his room. He testified that he was present when the plaintiff was arrested. He was surprised that the plaintiff was arrested and he doesn’t understand why the plaintiff was accused by his friends of theft out of all the other students and residents. He also stated that he did not know anything about an argument between the plaintiff and Boitumelo.

[33]     During cross examination Mr Tshangele could not explain why the plaintiff did not mention him in his pleadings as well as in his evidence in chief. When pressed for an answer by the legal representative for the defendant he stated that perhaps the plaintiff forgot to mention him. He also conceded that the plaintiff had not confided in him that he had failed a module because of the arrest. He further stated that he was never requested by the plaintiff  or his legal representatives to depose to an affidavit and he was only contacted last month ( May 2021) to testify in favour of the plaintiff. When quizzed whether the plaintiff was told the reason for his arrest his answer was that he could not hear the conversation between the police and the plaintiff. In contradiction to his evidence in chief Mr Tshangele  further stated that plaintiff’s friends might have had a personal vendetta against him because there was a girlfriend issue.

[34]     The plaintiff then called a second witness Ms Palesa Ntabi. She testified that she was a student at TUT and has a National Diploma in Hospitality and Management which was conferred to her by TUT during 2021. She is the girlfriend of the plaintiff and she was present when he was arrested. She had attended the fresher’s ball accompanied by the plaintiff and his cousin. She testified that they were drinking alcohol for most of the night until 05:00 when they left the ball because the party was dying out and people were leaving. She went with the plaintiff to his room to sleep and his cousin slept in her room. On Monday morning the police knocked at the door, Mr Ndlovu was with the police and pointed out the plaintiff to the police who then advised him that he was being arrested because he had been accused of stealing a laptop. She further testified that on the day plaintiff was arrested he was supposed to write a test  and as a result he failed the module because of this case. She further stated that the plaintiff was kicked out of the student residence because the other students did not want to stay with someone they considered to be a thief.`

[35]     During cross examination Ms Ntabi testified that she met the plaintiff in 2016 when he was doing a bridging course. He was upgrading as he had not met the minimum requirements for acceptance into the institution as a first year student. She also testified that she has no knowledge of an argument between plaintiff and Boitumelo and according to her Bobo and Boitumelo were not friends of the plaintiff, they just knew each other as fellow students and house mates. Ms Ntabi did not mention being in the company of Mr Tshangela in her evidence in chief and had to be probed by the plaintiff’s legal representative during re-examination to remember being in the company of Mr Tshangela. She clarified that Mr Tshangela was not in their company but he happened to be at the ball with other students.

[36]     Section 40(1)(b) of the Criminal Procedure Act 51 of 1977 reads as follows :

(1) A peace officer may without a warrant arrest any person –

(b)       Whom he reasonably suspects to have committed a schedule 1 offence other than the offence of escaping from custody.

[37]     The section requires that the peace officer must have a reasonable suspicion that a schedule 1 offence had been committed by the suspect when effecting an arrest in terms Section 40(1)(b).  The term ‘reasonable grounds to suspect’ has enjoyed considerable attention by our courts. In the matter of R v Van Heerden 1958 (3) SA 150 T, Galgut AJ ( as he then was) stated that “these words must be interpreted objectively and the grounds of suspicion must be those which would induce a reasonable man to have suspicion."

[38]     This principle was followed in the matter of Duncan v Minister of Law and Order (38/1985) [1986] ZASCA 24; [1986] 2 All SA 241 (A) (24 March 1986) where HJO van Heerden JA said the following, “The so called jurisdictional facts which must exist before the power conferred by s 40 (1) (b) of the present Act may be invoked, are as follows:

1)        The arrestor must be a peace officer.

2)        He must entertain a suspicion.

3)        It must be a suspicion that the arrestee committed an offence referred to Schedule 1 to the Act

4)        The suspicion must rest on reasonable grounds.

If the jurisdictional requirements are satisfied, the peace officer may invoke the power conferred by the subsection, i.e., he may arrest the suspect.”

[39]     The test for reasonable grounds is eloquently set out as follows in the matter of Mabona v Minister of Law and Order and Others 1988 (2) SA 654 E at 685E-H: “Would a reasonable man in the second defendant’s position and possessed of the same information have considered that there were good and sufficient grounds for suspecting that the plaintiffs were guilty of conspiracy to commit robbery or possession of stolen goods knowing it to have been stolen? It seems to me that in evaluating his information a reasonable man would bear in mind that the section authorises drastic police action. It authorises an arrest on the strength of a suspicion and without the need to swear out a warrant, i.e. something which otherwise would be an invasion of private rights and personal liberty. The reasonable man will therefore analyse and assess the quality of the information at his disposal critically, and he will not accept it lightly or without checking it where it can be checked. This is not to say that the information at his disposal must be of sufficiently high quality and cogency to engender in him a conviction that the suspect is in fact guilty. The section requires suspicion but not certainty. However, the suspicion must be based upon solid grounds. Otherwise, it will be flighty or arbitrary, and not a reasonable suspicion.”

[40]     In the matter of Louw v Minister of Safety and Security 2006 (2) SACR 178 (T) at 186a – 187e, Bertelsmann J said the following : “I am of the view that the time has arrived to state as a matter of law that, even if a crime which is listed in Schedule 1 of Act 51 0f 1977 has allegedly been committed, and even if the arresting officers believe that on reasonable grounds that such a crime has indeed been committed, this in itself does not justify an arrest forthwith.

An arrest, being as drastic an invasion of personal liberty as it is, must still be justifiable according to the demands of the Bill of Rights….[P]olice are obliged to consider, in each case when a charge has been laid for which a suspect might be arrested, whether there are no less invasive options to bring the suspect before the court than an immediate detention of the person concerned. If there is no reasonable apprehension that the suspect will abscond, or fail to appear in court if a warrant is first obtained for his/her arrest, or a notice or summons to appear in court is obtained, then it is constitutionally untenable to exercise the power to arrest.”

[41]     In the matter of Minister of Safety and Security v Sekhoto and Another (2011 (1) SARC 315 (SCA); [2011] 2 All SA 157 (SCA); 2011 (5) SA 367 (SCA) [2010] ZASCA 141;  131/10 (19 November 2010), the jurisdictional facts for a section 40(1)(b) defence were confirmed by Harms DP at para 6 where he stated that “As was held in Duncan v Minister of Law and Order, the jurisdictional facts for a section 40 (1)(b) defence are that (i) the arrestor must be a peace officer; (ii) the arrestor must entertain a suspicion; (iii) the suspicion must be that the suspect (arrestee) committed an offence referred to in Schedule 1; and (iv) the suspicion must rest on reasonable grounds.”

[42]     In the matter of Minister of Safety and Security v Slabbert (668/2008) [2009 zasca163 (30 November 2009) at para 11, Mhlantla JA stated that “The purpose of the pleadings is to define the issues for the other party and the court. A party has a duty to allege in the pleadings the material facts upon which it relies. It is impermissible for a plaintiff to plead a particular case and seek to establish a different case at the trial. It is equally not permissible for the trial court to have recourse to issues falling outside the pleadings when deciding a case.”

[43]     The court went further to state at para 12 that “There are however, circumstances in which a party may be allowed to rely on an issue which was not covered by the pleadings. This occurs where the issue in question was canvassed by both sides at the trial. In South British Insurance Co Ltd v Unicorn Shipping Lines (Pty) Ltd 1976 (1) SA 708 (A) at 714G, this court said, :

‘However, the absence of such averment in the pleadings would not necessarily be fatal if the point was fully canvassed in evidence. This means fully canvassed by both sides in the sense that the Court was expected to pronounce upon it as an issue.

[44]     In the matter of Molusi & others v Voges N O & others 2016 (3) SA 370 (CC), supra at para 28, Nkabinde J stated that “The purpose of pleadings is to define the issues for the other party and the court. And it is for the court to adjudicate upon the disputes and those disputes alone. Of course, there are instances where the court may of its own accord (mero motu), raise a question of law that emerges fully from the evidence and is necessary for the decision of the case as long as its consideration on appeal involves no unfairness to the other party against whom it is directed.

[45]     Turning to the matter before me, it is trite that every individual’s person is inviolable. In actions for damages for wrongful arrest or detention our courts have ruled that such infractions are prima facie unlawful. Once the arrest has been admitted or approved, the onus is on the defendant to justify such infraction. The defendant has to prove on a balance of probabilities that the jurisdictional facts existed before the power conferred by s 40 (1) (b) of the present Act was invoked, as stated in Duncan v Minister of Law and Order, supra para 38.

[46]     The witness for the defendant in his evidence testified that all the jurisdictional facts existed at the time of the arrest. He testified that he had a reasonable suspicion that the plaintiff had committed the crime of house breaking and theft, which is a schedule 1 offence. He had two complainants and one of them suspected the plaintiff as the perpetrator because other students had seen him with his laptop and a witness who caught him in the act of trying to open the locked door of the other complainant and he was pointed out by the witness. He however conceded during cross examination that when he arrested the plaintiff he did not ask to hear his version nor did he interview him when they arrived at the police station. He left him in the holding cells and continued with his other duties. He only interviewed and charged him the following morning just before he was to appear before a magistrate, after he had spent a night in prison.

[47]     It seems to me that the police officer did not question the plaintiff to get his explanation to the allegations of theft he was being accused of. In Louw v Minister of Safety and Security, supra para 40, the court stated that, the police officers who purport to act in terms of Section 40(1)(b), should investigate exculpatory explanations offered by a suspect before they can form a reasonable suspicion for the purpose of a reasonable arrest. This principle for reasonable suspicion was followed and crystalized in the matters of  Mabona v Minister of Law and Order and Others, supra para 39 and Minister of Safety and Security v Sekhoto, supra para 41. The police officer cannot act merely on a subjective suspicion, the suspicion must be reasonable.

[48]     In his evidence in chief, Sergeant Lebea testified that at the time of making the arrest he had a reasonable suspicion that the plaintiff had committed the crime of house breaking and theft, which is a schedule 1 offence. He had two complainants and one of them suspected the plaintiff as the perpetrator because other students had seen him with his laptop and a witness who caught him in the act of trying to open the locked door of  the other  complainant and he was pointed out by the witness. The plaintiff testified that during the arrest he was told that he is being taken in for further questioning and he was not afforded an opportunity to give an explanation, even when they arrived at the police station he was not interviewed until when he was about to go to court.

[49]     The question to ask is whether a reasonable man in the shoes of the police officers in casu would have effected an arrest with the information at their disposal or whether they would have questioned the plaintiff to get further facts to assist them to ascertain whether it was reasonable to arrest without a warrant of arrest. In my view it would have been prudent for the police officers to have questioned the plaintiff and formed an objective reasonable suspicion that he committed the crime before arresting without a warrant of arrest. I find their decision to arrest the plaintiff to be Wednesbury unreasonable, that is, their decision was so unreasonable that no reasonable person acting reasonably could have made it, a reference made to the matter of Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1947] 2 All ER 680, [1948] 1 KB 223. It is my view that the police officers in exercising their discretion to arrest without a warrant, relied on a suspicion that was not reasonable therefore rendering their action unlawful.

[50]     The police officer during his evidence in chief testified that his main reason for arresting the plaintiff was because he was concerned that as the plaintiff was not a resident at Ekhaya Junction Student Accommodation, he might struggle to find him in the future if he didn’t arrest him at that time. This in my view cannot be correct and condoned as the purpose of an arrest is not for the convenience of peace officer in executing their duties. The main reason to arrest a person is to secure their attendance before court to answer to an allegation that the individual committed a crime. The conduct of the police officer in this matter was unlawful.

[51]     The plaintiff led evidence outside the bounds of his pleaded case and called witnesses outside the bounds of his pleaded case. See the matter of Minister of Safety and Security v Slabbert supra at para 43. The defendant had an opportunity to canvass the evidence of the plaintiff and in my view this evidence did not adversely affect the case of the defendant. See the matter of Molusi & others v Voges N O & others 2016 supra at para 44.

[52]      Plaintiff’s evidence in chief differed substantially from his pleaded case in his particulars of claim. In his evidence in chief he testified that he was arrested on the 18^th September 2017 and released on the 20^th September 2017. He said he remembers the date of his release because that is the day he was supposed to write a test on EUC 101AT ( End User Computer) and as a result of missing the test he failed and had to repeat  the module the  following year. However in his pleadings he stated that he missed a test on EUC 101AT ( End User Computer) which he was supposed to write on the day of his arrest despite informing the arresting officers of same. Plaintiff pleaded that he was refused accommodation on campus because he did not pass all his modules however in his evidence in chief he testified that he was kicked out of the residence because other students did not want to stay with a thief.

[53]     Plaintiff further testified in his evidence in chief that he went to the freshers ball with his girlfriend and his cousin however in his pleadings he stated that he met the complainant and others along the way to the freshers ball which event the plaintiff attended with other students. He stated that it could be a typing error that no reference was made in his pleadings about him being in the company of his girlfriend and cousin at the ball. Plaintiff was quizzed on why he had not placed before court his identity document, proof of registration as a student at TUT, proof of residence at Ekhaya Junction and proof of the test that he missed. His answer was that he gave the documents to his attorneys of record and he does not know why they had not placed the documents before court and said it was an error on the part of his attorneys. Plaintiff however indicated that the proof of registration as a student at TUT during 2017 was attached to his pleadings which clearly indicated his name, identity number and the registered courses and subjects. He also testified that he had lost his identity document.

[54]     It is my view that the plaintiff’s evidence  as stated above is full of material contradictions. He cannot explain why he did not mention the witnesses in his pleadings, the contradictions in his evidence on the date of the test he is supposed to have missed and failed. It begs the question why the plaintiff did not place before the court evidence of the test he missed and failed taking into consideration the conflicting dates of the test in his pleadings and evidence. With regards to his registration as a student at TUT, the plaintiff produced a document purporting to be a proof of registration. This document is however not certified as a true copy of the original and can therefore not be accepted by the court. The plaintiff blamed his legal representatives for not placing his evidentiary documents before the court. The plaintiff’s version cannot on a balance of probabilities  be accepted by the court.

[55]     The plaintiff also called two witnesses to testify on his behalf. It is noteworthy to indicate that he had not mentioned them in his pleadings. The first witness, Mr Tshangele could not explain why the plaintiff did not mention him in his pleadings as well as in his evidence in chief. When pressed for an answer by the legal representative for the defendant he stated that perhaps the plaintiff forgot to mention him. He also had no idea that plaintiff had failed a module because of the arrest. He further stated that he was never requested by the plaintiff or his legal representatives to depose to an affidavit and he was only contacted last month (May 2021) to testify in favour of the plaintiff. In contradiction to his evidence in chief Mr Tshangele  further stated that plaintiff’s friends might have had a personal vendetta against him because there was a girlfriend issue.

[56]     The other witness Ms Palesa Ntabi, testified that she was a student at TUT at the time of plaintiff’s arrest and she is the girlfriend of the plaintiff and she was present when he was arrested. During cross examination Ms Ntabi could not explain why the plaintiff never mentioned her in his pleadings. She also testified that she has no knowledge of an argument between plaintiff and Boitumelo and according to her Bobo and Boitumelo were not friends of the plaintiff, they just knew each other as fellow students and house mates. Ms Ntabi did not mention being in the company of Mr Tshangela in her evidence in chief and had to be probed by the plaintiff’s legal representative during re-examination to remember being in the company of Mr Tshangela. She clarified that Mr Tshangela was not in their company but he happened to be at the ball with other students. Her evidence does not corroborate that of the plaintiff, instead it contradicts it.

[57]     It is my view that the evidence of these two witnesses did not assist the plaintiff’s case instead it has created an element of doubt on the truthfulness of the version of the plaintiff with regard to who the plaintiff was with at the fresher’s ball, what time they left the party, whether there was a test that the plaintiff missed.

[58]     The plaintiff’s testimony is that he was arrested on the morning of the 18^th September and released in the afternoon  20^th September 2017. However in the heads of argument filed by his legal representative, the date of release is stated as the 22^nd  September 2017. The evidence produced by the defendant shows that the plaintiff was arrested on the morning of the 19^th September 2017 and released in the late morning of the 20^th September 2017. The plaintiff’s version of the date of arrest and the conflicting dates of release create doubt on the truthfulness of the evidence of the plaintiff and the court can only rely on the evidence before it. The evidence provided by the defendant with regard to the date and release of the plaintiff is accepted save for the time of arrest where the defendant conceded that the plaintiff was arrested earlier at 10:25. The defendant in its heads of argument submitted at para 12.4 that “ The duration of his detention is no more that 36 hours even if we were to go by the version that he was arrested at 08:00 which time was disputed as the cell register records that he was arrested at 10:35.”

It my view that the duration of the plaintiff’s detention, when we calculate the hours from 08:00 the 19^th to 12:00 the 20^th September 2017 is 28 hours.

[59]     The defendant submitted in its heads of argument that the plaintiff is a young man who was not manhandled when he was arrested. No allegation to that effect was made and no evidence in that regard was lead. Plaintiff has not placed any evidence before court to compute his damages especially his psychological, and medical report as well as his transport costs. The plaintiff in his evidence in chief testified that it was crowded and filthy in the cell and because of the filth he could not eat or sleep. He was experiencing incarceration for the first time.

[60]     In determining the quantum for general damages suffered by an arrestee for an unlawful arrest,  Potgieter JA in the matter of Protea Assurance Co Ltd v Lamb 1971 (1) SA 530 (AD) at 536, held that “comparable cases when available should rather be used to afford some guidance in a general way towards assisting the Court in arriving at an award which is not substantially out of general accord with previous awards in broadly similar cases, regards being to all factors which are relevant in the assessment of general damages…..”

[61]     However in the matter of Minister of Safety and Security v Seymour 2006 (6) SA 320 (SCA) [2007] 1 All SA 558 para 17, Nugent JA held that “ 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 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 than that.”

[62]     In the matter of Minister of Safety and Security v Tyulu (327/2008) [2009] ZASCA 55; 2009 (5) SA 85 (SCA); 2009 (2) SACR 282 (SCA); [2009] 4 All SA 38 (SCA) (27 May 2009), Boshielo AJA held that “ 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.”

[63]     In the matter of Kwenda and Others v Minister of Safety and Security (3667/09) [2010] ZAGPPHC 274 (25 June 2010) at para 18, Murphy J  quoted a passage in Protea Assurance Co Ltd v Lamb supra para 60,  where Potgieter JA stated that “ It is settled law that the trial judge has a large discretion to award what he in the circumstances considers to be fair and adequate compensation to the injured party for the sequelae of his injuries.”

[64]     In reaching my conclusion on an appropriate amount to be awarded in this matter before me, I have had regard to the cases of Protea Assurance Co Ltd v Lamb, Minister of Safety and Security v Seymour, Minister of Safety and Security v Tyulu and Kwenda and Others v Minister of Safety and Security. The judgements in these cases illustrate  what Nugent JA said , in  Seymour that there is no specific pattern or formula followed in awarding damages and they also indicate that our courts are not extravagant in awarding compensation in unlawful arrest matters. The factors that usually have some bearing are: the age of the plaintiff; whether or not the arrest was for an improper motive; whether the plaintiff was manhandled or arrested in a humiliating, degrading or public manner; the duration of the detention; and whether the plaintiff was compromised in his dignity further by reason of him occupying an important office or position.

[65]     In the matter of  Kwenda and Others v Minister of Safety and Security supra, an award of R70 000 was granted for a 36 hour detention of the plaintiff under appalling conditions at the Silverton Police Station.

In the matter of Mothoa v Minister of Police (5056/11) [2013]ZAGPJHC 38, an award of R150 000 was granted for a 22 hour detention of the plaintiff under appalling conditions at the Johannesburg Central Cells.

In the matter of Candice J Nel v Minister of Police CA62/2017, an award of R35 000 was made by the appeal court for a 22 hour detention of a mother together with her two year old infant .She was detained in a dirty police cell with other unknown females which bore an unbearable stench. She was incarcerated for the first time and she was release without appearing in court.

[66]     Turning to the matter before me, it is obvious from the evidence that the plaintiff suffered humiliation by reason of the arrest in front of his girlfriend and other friends as well as students of TUT residing at  Ekhaya Junction. The plaintiff is a young man and in reasonably good health and there is no evidence that the detention, despite the terrible conditions, compromised his health or physical and psychological wellbeing. There is no doubt that the humiliation and appalling conditions of the detention did have a negative impact that may possibly endure. The plaintiff was detained for 28 hours before being released without any criminal proceedings being instituted because the prosecutor declined to prosecute the matter.

[67]     Taking into account all the above factors and the remarks in Tyulu where it was held that “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.” I consider an amount R70 000 to be a fair and reasonable  compensation to the plaintiff in respect of his general d damages.

[68]     It is a general rule in our law that the costs should follow the results and I see no reason to deviate from the norm.

[69]     In the premises, the following order is made:

(a)  The arrest and detention of the plaintiff  on the 19^th September 2017 was  unlawful.

(b)   The defendant is liable to compensate the plaintiff for general damages in the amount of R70 000, such amount to be paid within 30 days from date of this order.

(c)  Defendant is ordered to pay the costs of suit.

M.M.D. LENYAI

ACTING JUDGE OF THE HIGH COURT

GAUTENG DIVISION, PRETORIA

CASE NUMBER:  65732/2018

HEARD ON:  05 - 07 May 2021 and 23 – 24 June 2021,

Heads of Argument submitted on 2 July 2021

FOR THE PLAINTIFF:  ADV. K Letswalo

INSTRUCTED BY:  MWIM Attorneys, Pretoria

FOR THE DEFENDANT: ADV M.T Moshodi

INSTRUCTED BY : State Attorney, Pretoria

DATE OF JUDGMENT:  20 September 2021

---