THE HIGH COURT OF SOUTH AFRICA 
(WESTERN CAPE HIGH COURT, CAPE TOWN)

Case No.: 4390/2007
In the matter between:

JUDGMENT DELIVERED: FRIDAY 10 DECEMBER 2010 SALDANHA, J
[1.] The plaintiff, Mr. Mzimkulu Hilton Mpemvana instituted an action for damages against the defendants arising out of his arrest and detention on a charge of armed robbery of which he was acquitted.

[2.] The court with the consent of the parties separated the issue of the merits from that of the quantum. The only issues for determination at this stage is whether the initial arrest and detention of the plaintiff at the instance of employees of the first defendant and subsequent detention allegedly at the instance of the employees of both defendants was indeed unlawful and wrongful as claimed by the plaintiff.

{i} The members of the first defendant, knew alternatively should have known that no reasonable grounds existed for the arrest and subsequent detention of the plaintiff.

[4.] The plaintiff claimed that both the investigating officer and the state prosecutor at the appearance of the plaintiff in court on the charge of armed robbery recommended that he be denied bail notwithstanding their having considered the police docket, knew or ought to have known that;

[5.] The plaintiff initially appeared on various occasions in the Plettenberg Bay magistrates court where he unsuccessfully applied to be released on bail. He subsequently appeared in the regional court at Knysna and stood trial on a charge of armed robbery.

[6.]    The plaintiff claimed that at each of the remands and during the bail
application the defendant owed a duty of care to him to; 

[8.] As a consequences of such conduct on the part of the defendants the plaintiff claimed that he had suffered damages in the amount of R982 8110. The plaintiff further claimed that the members of the first and second defendant were at all relevant times acting within the course and scope of their employment.

[9.] The plaintiff claimed that he had complied with the statutory provisions of Act 40 of 2002 alternatively that he was entitled to condonation in terms of section 3 of the Act.

[12.] At the commencement of the proceedings both the first and second defendants accepted that they bore the onus of proving the lawfulness of the plaintiffs arrest and initial detention. They lead the evidence of three witnesses. The plaintiff for his part chose not to testify and neither was any other witnesses called by the plaintiff.

The background

[15.] The plaintiff however was according to Theunissen and Nomdo inexplicably not formally charged and prosecuted for the unlawful possession of the firearm that was found in the black bag.

The application for bail.
[17.] It was common course that the charge of robbery on which the plaintiff was arrested fell under Schedule 6 of the Criminal Procedure Act (CPA). Section 60(11) of the CPA provides;
"Notwithstanding any provision of this act, where an accused is charged
with an offence referred to -

[19.] Theunissen testified that in preparing for the plaintiffs application for bail he investigated the personal circumstances of the plaintiff. The plaintiff had initially informed him during the arrest at Mboto's house that he had also lived at the same residence with Mboto. The plaintiff however had subsequently said to him that he lived at a different address at Sididi Street in Kwanobuhle. He also gave the Sididi address as his work address. The plaintiff informed him that he was originally from the Eastern Cape, Uitenhage and that at the time of his arrest he had only lived for about a year in Plettenberg. He claimed that he was divorced and had two children. The plaintiff had also claimed that the day prior to the incident (and his arrest) he had been in Uitenhage and that he had spent the night with an unknown woman at an unknown address. On the morning of the incident he had got a lift to Plettenberg Bay and was dropped off at the Thyme and Again stall and from there Mboto had given him a lift to the Quanoquaba township. Theunissen claimed that Mboto had given him a contrary explanation as Mboto had claimed that he together with the plaintiff and three other unknown persons had gone to the Thyme and Again stall after he (Mboto) had run an errand in the town. At the Thyme and Again road stall Mboto claimed to have looked for a particular magazine which they did not have and he returned to the vehicle. At the vehicle one of the three unknown men got into the car and told him to drive back to the township. He had not known that the three unknown men had been involved in a robbery at the Thyme and Again stall.

[21.] The magistrate refused to release the plaintiff on bail. Theunissen conceded that part of the considerations the court would have taken into account was the possible involvement of the plaintiff in the May 2003 incident.

[22.] The plaintiff did not appeal the decision of the magistrate and neither did he during the course of the trial renew his application for bail. The plaintiff was also subsequently charged with the 2003 robbery and on the 23 November 2003 obtained a discharge in terms of section 174 of the CPA. The plaintiff however did not renew his application for bail thereafter on the Thyme and Again charge.

The 2003 robbery
[23.] Nomdo who was the initial investigating officer in the matter claimed that the only information that the police had about the perpetrator was that obtained from informers and that the perpetrator was allegedly known by the name 'Zim'. One of the witnesses had subsequently identified the plaintiff from a photograph shown to him as one of the suspects in the matter. No identification parade was held by either Nomdo or Theunissen who had subsequently taken over the investigation of the matter. It appeared that at the trial none of the witnesses were found which resulted in a collapse of the states case against the plaintiff and he successfully obtained a discharge in terms of section 174.

The Thyme and Again robbery prosecution.

Issues for determination

November 2005 (the date on which the plaintiff was acquitted on the 2003 robbery charge) was lawful.

The arrest of the plaintiff
[28.] Section 41 (a) of the CPA provides that "a peace officer may without warrant arrest any person -

(a) Who commits or attempts to commit any offence in his presence
(b)Who he reasonably suspects of having committed an offence referred to in schedule 1 other than the offence of escaping from lawful custody	

[31.] On the basis of the evidence, which was not contradicted by any testimony of the plaintiff, both Theunissen and Nomdo found the plaintiff in the presence of Mboto who had been identified as having driven the vehicle which had been described as having been used in the robbery. It also appeared to be common cause that the clothing worn by the plaintiff on his arrest accorded with the description given by the witness and that the plaintiff was found in the immediate vicinity of a black bag (which had also been referred to by the witness) and in which an unlicensed firearm was found.  In the circumstances although the plaintiff had not been charged with and prosecuted for the possession of the unlawful firearm there appeared to be a reasonable basis for the arresting officers to have formed a reasonable suspicion of the plaintiffs involvement in the offences such as the possession of an unlawful firearm and the armed robbery at the Thyme and Again stall.

The refusal of bail to the plaintiff

The continued detention of the plaintiff after the 23 November 2005.

"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."

[34.]   However inasmuch as the plaintiff is under the constitution entitled to his
liberty the provisions of section 60 (11) prescribes that;

The issue of costs
[35.] During the course of the trial two specific issues arose with regard to the question of costs. The witness Stemmet had initially not been available to testify on account of ill health. The proceedings were adjourned and the defendants were required to provide proof that Stemmet's absence had been occasioned as a result of ill health. At the subsequent appearance of Stemmet he confirmed that he had been ill and was unable to attend court. His absence had been supported by a medical certificate by his doctor. I am therefore of the view that each party should carry their own wasted costs occasioned by the postponement.

[37.] The defendants also handed up to the court a proposed Amended Plea in which it claimed that plaintiffs claim arising out of allegations that he was
(a) Maliciously arrested and detained.
(b) Maliciously prosecuted.
(c) Owed a duty of care with reference to being granted bai.l

[38.] Mr. Mouton objected on behalf of the plaintiff to the belated application for the amendments and informed the court that neither he nor his attorney had been appraised or informed prior to the moving of the application by the defendant's counsel of their intention to seek such amendments. Mr. Mouton further submitted that the plaintiff had not relied during the course of the trial on the claim based on a malicious arrest, detention and the prosecution of the plaintiff by the defendants.

[40.] Swanepoel further submitted that the defendants had provided no explanation of the circumstances under which the admission was made nor the reasons for it's withdrawal. The plaintiff also claimed that the proposed amendment of the pleas by the insertion of the special plea was vague, embarrassing and susceptible to be excepted upon various grounds.

[43.] In the light of the abandonment the court requested defendants counsel to submit an affidavit from the defendants that it was in fact their instructions to move for such amendments as defendants counsel had indicated that the proposed amendments had only occurred to him during the course of formulating his heads of argument in the matter.

[44.] The defendants filed an affidavit by a Johan Truter a legal officer in the employ of the first defendant who confirmed that the amendments were moved upon their instructions and the instruction to their counsel was confirmed in an affidavit by the state attorney responsible for dealing with the matter.

[45.] The aborted amendments resulted in the matter being unnecessarily delayed by more than a full court day. Besides the wasted costs, counsel for the plaintiff and the attorney were further inconvenienced by having to spend another day in Cape Town as they were both from out of town.

[46.] In the light of the belated nature of the amendments and its abandonment I am of the view that it is appropriate that the wasted costs occasioned thereby be borne by the defendants on an attorney client scale, jointly and severally, the one paying the other to be absolved. Mr Mouton submitted that a costs award in favour of the plaintiff should include that of two counsel. I do not agree, as the nature and complexity of the matter certainly did not warrant the employ of two counsel.

In the result the following order is made:
The plaintiffs claim is dismissed with costs, save for the wasted costs occasioned by;

SALDANHA J