Barnard v Minister of Police and Another (CA286/18) [2019] ZAECGHC 58; [2019] 3 All SA 481 (ECG); 2019 (2) SACR 362 (ECG) (31 May 2019)

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION, GRAHAMSTOWN)

CASE NO: CA286/18

REPORTABLE

In the matter between:

HERMANUS BARNARD

Appellant

and

THE MINISTER OF POLICE

First Respondent

CONSTABLE DWAYNE JONKER

Second Respondent

Arrest and detention – Without warrant - Evidence – Whether duty on arrestee to present evidence to prove that arresting and detaining officers failed to exercise their discretion once a series of admissions have been made by arresting officer to the effect that discretion was not exercised. Jurisdictional facts for and discretion to arrest and detain discussed and distinguished.

JUDGMENT

STRETCH J:

[1] On 13 June 2014 (at 14h20) the second respondent arrested the appellant without a warrant at a scrap metal dealership in Despatch, Uitenhage (“the premises”) for being in possession of 29

allegedly stolen maroon coloured metal/aluminium window blinds (“the goods”), whereafter he was detained overnight at the local police cells and released on bail the next day (at 11h50) on condition that he appeared in court on 17 June.

[2] According to the appellant’s claim in the court a quo, the Uitenhage prosecutor declined to prosecute him about a month later.

[3] Subsequently the appellant instituted action against the respondents, claiming damages in the sum of R100 000 for unlawful arrest and detention.

[4] The first respondent pleaded that the arrest was lawful in terms of section 40(1)(b) of the Criminal Procedure Act 51 of 1977 (“the CPA”) which reads as follows:

‘A peace officer may without warrant arrest any person –

Whom he reasonably suspects of having committed an offence referred to in Schedule 1, other than the offence of escaping from lawful custody’[1]

[5] The matter went to trial in the Uitenhage magistrates’ court. The respondents assumed the duty to begin and called two witnesses. The appellant thereafter closed his case without giving evidence and without calling any witnesses. The magistrate dismissed his claim with costs. The matter serves before us on appeal, on the

grounds that the magistrate erred and misdirected himself in:

a. Finding that the appellant’s arrest was justified as pleaded by the first respondent, in the light of the inapplicability of section 36 of the General Law Amendment Act 62 of 1955 to the facts of the matter;

b. Finding that the appellant failed to comply with section 23(1)(c) of the Second-Hand Goods Act 6 of 2009 as it was not pleaded, nor was it canvassed in evidence;

c. Finding that it was impossible for ‘29 aluminium metals’ to be worth less than R100 as this was not supported by evidence;

d. Finding that the appellant was in possession of the property which was suspected stolen as this was also not supported by the evidence;

e. Finding that the appellant had other cases against him as this was not supported by the evidence;

f. Failing to deal with the discretion of the arresting officer which was properly pleaded and canvassed;

g. Failing to deal with the duty of the arresting officer to use a less invasive way to secure the appellant’s attendance in court, such as a notice in terms of section 56 of the CPA, which option was both pleaded and canvassed;

h. Failing to deal with the respondents’ duty to bring the appellant before court as soon as reasonably possible, and more particularly that same afternoon, which duty was both pleaded and canvassed.

The law

[6] It is trite that any arrest or detention is prima facie wrongful. It is accordingly not necessary to allege or prove wrongfulness. The defendant in the court a quo must allege and prove the lawfulness of the arrest and detention.[2] Consequently, where police have arrested and detained a person and the arrest and detention are common cause or not disputed (as in the matter before us), the onus of proving lawfulness rests on the police.[3]

[7] Because an arrest and detention are prima facie wrongful, the defendant normally assumes the duty to begin[4] in an effort to establish justification, as there are at the end of the day, no other defences available to the defence, save for placing the plaintiff’s factual allegations in issue.

[8] An arrest without a warrant is lawful if, at the time of the arrest, the arresting officer (inter alia) held a reasonable belief that the arrestee had committed an offence referred to in the first schedule to the CPA.[5] The jurisdictional facts for such a section 40(1)(b) defence are that:

a. The arrestor must be a peace officer.

b. The arrestor must entertain a suspicion.

c. The suspicion must be that the arrestee had committed an offence referred to in schedule one.

d. The suspicion must be based on reasonable grounds.

[9] Once these jurisdictional facts are present, the discretion whether or not to arrest arises.[6]

[10] The discretion must be exercised in good faith, rationally and not arbitrarily.[7] This requires that it must be exercised with the objective of bringing the subject before court. Whether or not the discretion was properly exercised should not be judged on the standard of what is best in hindsight. Guidance as to how the discretion ought to be exercised is set forth in the Constitutional Court decision of MR v Minister of Safety and Security[8], where it was emphasised that the word ‘may’ (as opposed to ‘must’ or ‘shall’) in section 40(1) was permissive and not mandatory or peremptory, allowing the arresting officer the discretion to weigh and consider the prevailing

circumstances in deciding whether an arrest was necessary. It allows for a measure of flexibility because the enquiry is fact-specific. It is ‘neither prudent nor practical to try to lay down a general rule and circumscribe the circumstances under which police officers may or may not exercise their discretion’, since to do so ‘might have the unintended consequence of interfering with their discretion and, in the process, stymie them in the exercise of their powers in pursuit of their constitutional duty to combat crime’.[9]

[11] It is accordingly important, given that arrest is a drastic invasion of a person’s right to liberty and is an impairment of dignity, that courts inquire on a case by case basis whether the officer did in fact exercise this discretion at all, and if so, whether he did so properly[10] and in compliance with the Bill of Rights (my emphasis).

[12] The arresting officer must exercise his discretion properly, in the light of the prevailing circumstances, in order to decide whether an arrest is necessary.[11]

The facts

[13] It was the evidence of the arresting officer in this case (Constable Jonker), that on the day of the arrest, Ms Gxothiwe (the complainant) who was the principal of Sinwulazi High School, reported that the goods which had been stolen from the school could be found at certain premises (described as Despatch Scrap Metal), which is a scrap metal dealership managed by the appellant. Jonker visited the premises and they spoke to one Rasta who was working there but who was unable to produce a record to show where the goods had come from. Jonker left a message with Rasta for the appellant to contact him, whereafter the complainant opened a theft case at the police station. Thereafter he returned to the premises in order to write up information regarding the goods. He spoke to Rasta again and then phoned the appellant and left a message on his phone. He found the appellant at the premises when he returned there for the third time, at about 14h00. He advised the appellant that he had removed the ‘stolen items’ from the premises. The appellant told him that somebody had sold the goods to him at the premises. He asked the appellant for proof of the sale but none was forthcoming. He advised the appellant that because the appellant could not tell him where and from whom he had purchased the goods, he was arresting him for ‘suspiciously stolen property’ and taking him to ‘explain to the court why he had stolen the property’. He added that:

‘I explained to him that we are going to arrest him given the fact that he could not give us any reason or explanation as to how the blinds ended up on his premises, so then we decided that we are going to arrest him so that he must rather explain before the court.’

[14] Thereafter he arrested the appellant and detained him at the local police station on a charge of possession of property suspected to have been stolen.[12] Jonker testified that he did not have the authority to grant the appellant bail or to give him a written notice to appear in court. He said that if it was up to him he would have taken the appellant to court that same day, but he did not have the authority to do so. Only the station commander or the investigator could do this.[13] He added that at that stage he was not aware of any theft charges against the appellant. He said that if he had had the authority to issue the appellant with a summons, he would have done so as he had no reason to believe that the appellant would

subsequently have failed to appear in court. He was unable to say why his superiors who were present when he detained the appellant, did not issue him with a written notice to appear in court, or indeed why the appellant was not released that same day. He confirmed that he did not view the appellant as a flight risk, and that even if the appellant had failed to appear it would have been relatively easy to trace him.

[15] When Jonker was cross-examined it was contended that the appellant had explained how the goods made their way onto the premises. It was put to Jonker that the goods had been purchased two days before and that Jonker’s colleague by the name of Young was aware of this. To this Jonker replied that the goods which he (Jonker) had seized were different to the ones which Young bore knowledge of.

[16] It was further put to Jonker that two youngsters had arrived at the premises two days before, having the goods in their possession as well as items referred to as lip channels. According to the appellant’s legal representative, the appellant then contacted Young who visited the premises and viewed all these items including the goods. The lip channels were returned to their lawful owner. Jonker’s response to the appellant’s version was that the investigator had erred in combining the case of the lip channels with the one of the goods. No attempt was made to elucidate this highly relevant response at the trial and it remains somewhat of a non sequitur.

[17] It was further put to Jonker that the appellant had specifically said to him:

‘Don’t arrest me for these plates. Phone Mr Young, he knows about it.’

[18] Significantly, Jonker neither confirmed nor denied that the appellant had given him this explanation when he was confronted about the presence of the goods on the premises. Instead, Jonker’s response when this was put to him was the following:

‘Months later your Worship that I got this notification that said I need to come to court because I have been subpoenaed, it is then that Mr Young explained to me that he got lip channels but he did not get blinds … In my mind your Worship I was aware that Mr Barnard did not steal these blinds but the thing is that he was in possession of the suspiciously stolen goods. And he didn’t give his full co-operation as to tell us from whom he bought these blinds, and that’s the reason I wanted him rather he must explain before the court where he got it from.’

[19] The relevance and the weight to be attached to this type of indirect response was not pursued during the trial, nor did the magistrate allude thereto in his judgment.

[20] Jonker also added that he did not suspect that the appellant had bought the goods with the knowledge that the sellers had stolen them. Indeed, he was unable to dispute the following:

a. That the appellant had purchased the goods from two youngsters two days before and had paid less than R100 for them;

b. That second-hand items purchased for under R100 where exempt from inclusion in the requisite purchases register.

[21] It was put to Jonker that the transaction had been recorded in the appellant’s invoice book but without “everyone’s details”. His response was that he had asked for anything which the appellant could produce to confirm the identity of the sellers (which was disputed during cross examination as I have already mentioned), but the appellant did not come up with anything.

[22] When it was suggested to him that he was so upset because the appellant had not returned his call that he had threatened the appellant with “bearing the consequence” for failing to react to the police, he said that he would not know whether he had said something like that but that it would have been unprofessional if he did.

[23] It was further put to him that the appellant would testify that he had had a number of other things to do on the morning of his arrest which commanded his attention elsewhere, and that that was the reason why he had failed to respond to Jonker’s telephonic voice message earlier. In essence Jonker conceded that the appellant had not deliberately ignored him, recalling in his evidence that the appellant had mentioned something about having been detained elsewhere delivering a vehicle.

[24] Jonker wrapped up his testimony by saying that he had used his discretion to arrest the appellant that day because he had asked the appellant about the stolen goods and had given him several opportunities to explain but without any success.

The law as applied to the facts

[25] Although the legislation was not specifically cited when Jonker gave evidence, it appears that he arrested the appellant on a charge of contravening section 36 of the General Law Amendment Act, the relevant portion of which reads as follows:

‘36 Failure to give a satisfactory account of possession of goods

Any person who is found in possession of any goods … in regard to which there is reasonable suspicion that they have been stolen and is unable to give a satisfactory account of such possession, shall be guilty of an offence and liable on conviction to the penalties which may be imposed on a conviction of theft.’

Possession of the goods

[26] The appellant’s grounds of appeal seem to suggest that section 36 of the General Law Amendment Act does not apply to this matter, because the appellant was not found in physical possession of the goods.

[27] I do not agree. The plaintiff himself pleaded that he had purchased the goods from members of the public at the scrap metal dealership (the premises) of which he is the manager. Jonker confirmed in his testimony that this was the appellant’s explanation for the goods having been found at the premises. In the circumstances, it matters not that the appellant was absent when the goods were found. For purposes of section 40(1)(b) of the CPA read with section 36 of the 1955 General Law Amendment Act, goods are (or property is) deemed to be found in the possession of the suspect even though the items were not found in his physical possession, and regardless of them having been found in his absence.[14] It is accepted that some degree of control over the goods and the premises where they were found, places the suspect in possession of the goods.[15]

[28] In this respect I agree with the submissions made on behalf of the respondents. It is common cause on the pleadings, alternatively not disputed in the evidence, that the goods were at all relevant times under the appellant’s control. He had concluded the transaction to acquire the goods, and he had retained them on premises which he was managing up until the time when the police seized them in his absence.[16]

[29] Counsel for the appellant, who did not formulate the grounds of appeal and who did not draft the heads of argument, has in any event not vociferously pursued any contention that red-handed possession is a prerequisite for an arrest in circumstances such as those before us.

Reasonable suspicion

[30] It has been contended on the appellant’s behalf that Jonker to some extent jumped the gun by approaching the premises and (on his version) forming a reasonable suspicion that the goods were stolen, without first having verified the complainant’s version on oath, and without first having opened the theft docket which he later did.

[31] Applying the case by case approach, I am not inclined to condemn the manner in which Jonker approached the situation. It appears from the evidence that he was either contacted by the complainant from the premises or that he escorted her to the premises after she had reported to him that she had found the goods which had been stolen from the school at the premises. She positively identified the goods as blinds which had been stolen from the school. Jonker described the blinds as:

‘ … long iron plates which are painted maroon, they are being used as blinds outside the school windows.’

[32] The complainant, when asked how she knew that the goods on the premises were the blinds which had been stolen from the school, gave the following account:

‘It’s blinds your Worship; blinds which had the colour of the school and we even had a sample with us inside the car. … Yes it is the school’s blinds. As I saw it I saw that they look exactly as blinds of the school. … I knew that those blinds belonged to the school because our school has been built in the early nineties and that type of blinds you are not just going to get it anywhere. And something else, there’s no other place which has blinds that has been stolen, like that at our school.’

[33] The mere fact that Jonker did not take time opening a docket and reducing the complaint and the description of the goods to writing in the form of an affidavit is neither here nor there. The complainant was in a position to positively point out the premises where the goods could be found. It seems to me that Jonker was in a position to listen to the complainant and to analyse and assess the quality of her information without having to reduce it to writing before approaching the premises in order to question the appellant.

[34] That is not the end of the matter however. A court which has to decide whether the suspicion of an arresting police officer was reasonable, should not ask whether he considered and applied his discretion in establishing a reasonable suspicion, but rather whether, objectively, a suspicion existed that a schedule one offence had been committed and whether that suspicion rested on reasonable grounds.[17]

[35] A peace officer who fails to substantiate his suspicion when he is able to do so or has the opportunity to do so, does not act reasonably.[18] Police officers who purport to act in terms of section 40(1)(b) of the CPA (as in the matter at hand) should investigate exculpatory explanations offered by a suspect before they can form a reasonable suspicion for the purposes of a lawful arrest.[19]

[36] This takes me back to Jonker’s varied, confusing and evasive responses when it was put to him that the appellant, before he was arrested, had told Jonker not to arrest him but to phone his (Jonker’s) colleague Mr Young, who knew about the goods. The upshot of these responses is that Jonker did not deny (despite having been given more than one opportunity to do so) that the appellant had requested him not to effect an arrest before telephoning Young, who knew about the goods. Nor did he dispute the appellant’s version as conveyed to him, to the effect that the appellant had not only summoned Young to the premises two days before when two youngsters tried to sell lip channels and the goods in question to him, but that Young had indeed attended the premises, had viewed the items, and most significantly, had for some reason, not effected an arrest. Indeed, Jonker’s evidence was that it was only when he was subpoenaed to attend the civil trial which forms the subject matter of this appeal and where he was cited as a second respondent, that he thought it prudent to chat to Young about what had transpired.

[37] To my mind Jonker’s failure to consider the explanations which the appellant had given him and to evaluate their authenticity and veracity by making a simple call to his fellow officer who had been to the premises two days before and had (for reasons which are evidently important) elected not to arrest the appellant, to my mind constitutes conduct which is not reasonable in the circumstances, and which militates against any finding that the warrantless arrest was based on a reasonable suspicion.[20]

[38] It being so that an arrest without a warrant in terms of section 40(1)(b) of the CPA is only permissible where the peace officer entertains a reasonable suspicion that the arrestee has committed a schedule one offence, and having found that any suspicion which Jonker may have entertained could not have been reasonable, (for the reasons which I have already stated) the trial magistrate, in my view, erred in dismissing the appellant’s claim.

The arresting officer’s discretion

[39] In the event that I am not correct in concluding that the respondents failed to prove the jurisdictional fact of reasonable suspicion, the enquiry does not end there. As I have said, once these facts are shown to have been present, the discretion whether or not to arrest arises. The arresting officer’s decision to arrest must be based on the intention to bring the arrestee to justice. Before a police officer exercises his discretion in favour of arrest, he has to weigh and consider the prevailing circumstances. The circumstances in which arrests are effected will rarely be the same. For that reason arresting officers should be flexible in their approach to individual cases. Courts ought to refrain from trying to circumscribe the parameters within which arrests should or should not be carried out. As I mentioned at the beginning of this judgment, courts confronted with allegations of improperly exercised discretion should firstly decide whether any form of discretion was exercised at all, and secondly, even if it has, whether it has been exercised properly in the light of the Bill of Rights.[21]

[40] In Minister of Safety and Security v Van Niekerk[22] the Constitutional Court on the facts before it, refused to lay down a one-size-fits-all test for constitutionally acceptable arrests. The court emphasized that the constitutionality of arrests would almost invariably be dependent on the facts of each case. It was emphasised that police officers who effect arrests and their superiors who supervise the exercise of these powers, are in the best position to establish the appropriate parameters within which the discretion to arrest should be exercised. Reference was also made to the application of police standing orders regulating arrest.

[41] By way of example, in Maharaj v Minister of Safety & Security[23], Pillay J held that the exercise of the discretion to arrest without a warrant was ‘irrational, unreasonable and a disproportional

limitation of [the plaintiff’s] right to her freedom and security of her person under s 12 and her right to freedom of movement under s 12 of the Constitution.’ It was held that the police further violated s 35(1)(f) of the Constitution which deals with the right to be released from detention where the interests of justice permitted.

[42] The police officer in that case had arrested and detained the suspect without attempting to verify information which she had provided. The only reasonable inference, said Pillay J, was that the ‘purpose of the arrest and detention was to intimidate and harass the plaintiff.’

[43] It is so that once the jurisdictional fact of the existence of a reasonable suspicion is proved by the police, the arrest is brought within the ambit of the enabling legislation and is thus justified. If it is alleged that the suspicion was improperly formed, it is for the arrestee to prove it. There is no reason to deviate from the general rule that the party who attacks the exercise of discretion where the jurisdictional facts are present, bears the onus of proof.[24]

[44] In Louw (supra) Bertelsmann J took the following firm stand (emphasis added):

‘I am of the view that the time has come to state as a matter of law that, even if a crime which is listed in Schedule 1 of Act 51 of 1977 has allegedly been committed, and even if the arresting officers believe on reasonable grounds that such a crime has been committed, this in itself does not justify an arrest forthwith.’[25]

[45] The learned judge was of the view that in each case falling within the ambit of section 40 of the CPA, the police are obliged to consider whether less invasive options to bring the suspect to court are available[26], effectively introducing a possible fifth jurisdictional point to be proved by an arrestor relying on section 40(1)(b). The judge also took the view that it was constitutionally unacceptable to resort to a warrantless arrest if there is no reasonable apprehension that the suspect will abscond, or fail to appear in court if a warrant is first obtained, or a notice or summons to appear in court is issued. Accordingly, the power to arrest without a warrant may be exercised only if there are reasonable grounds to suspect that the suspect will abscond if a warrant is applied for.[27]

[46] This elevation of a less invasive means to secure attendance to the level of a possible fifth jurisdictional point to be proved by the arrestor, was however pertinently rejected by the full court of the Supreme Court of Appeal in Sekhoto (supra) where it was unanimously held that the introduction of a fifth jurisdictional point in Louw (supra) and in the cases which followed was unfounded.

[47] Relying then on Sekhoto it would seem, it was contended on behalf of the respondents that it was accordingly not necessary for the police (acting in terms of section 40(1)(b)) to investigate or consider a milder method than a warrantless arrest to secure an arrestee’s attendance at court.

[48] To my mind a contention of this nature loses sight of the fact that even where the police have proved the existence of the jurisdictional facts, the discretion whether or not to arrest still arises. Differently put, the non-elevation of a milder method of securing attendance to a jurisdictional fact to be proved by the police, does not mean that the prudent policeman endowed with a discretion to arrest is at large to simply ignore less invasive methods, and in doing so, to fail to exercise that discretion properly or at all. It does however mean that once the police have proved that the jurisdictional requirements have been met, that it is for the plaintiff to prove that the arresting officer exercised his discretion improperly or not at all with respect to the availability of less invasive means than the warrantless deprivation of the arrestee’s liberty and freedom of movement.

[49] The question which then arises is whether, assuming that the jurisdictional facts existed, it was necessary for the appellant to testify or to present evidence on oath in order to prove that the defendants exercised their discretion improperly or not at all.

[50] In order to answer this question, it would be a valuable exercise (and one which I would have expected the trial court to perform) to list the concessions (relevant to the issue of discretion) which were elicited from Jonker before the question of whether it was still necessary for the appellant to present evidence in order to discharge the onus of proving that Jonker failed to exercise his discretion properly or at all, even arose. Jonker conceded that:

a. He was under the impression that he did not have the authority to give the appellant a written notice to appear in court or to grant him bail.

b. If he did have the authority to issue the appellant with a written notice to appear in court he would have done so, because he had no reason to believe that the appellant would have failed to comply with such a notice.

c. A written notice to appear in court the following day would have had the desired effect, that is, to secure the appellant’s attendance in court.

d. The appellant was fully co-operative.

e. The appellant had been known to him for some time (at least five years) and had worked at the same premises during this period.

f. He knew where the appellant lived when he arrested him and where he had lived in the past.

g. He did not consider the appellant to have been a flight risk when he arrested him.

h. Even if the appellant had failed to attend court, he would have known where to find him.

i. He was not aware of any other theft complaints against the appellant.

j. He knew that the appellant did not steal the goods.

k. He did not suspect that the appellant had purchased the goods from the sellers whilst harbouring the belief that the sellers had stolen the goods.

l. He was not acquainted with the legal niceties with respect to what should be reflected in the purchases register.

m. He did not know why his superiors who were present (Knox and Kleinhans) had failed to release the appellant.

n. He did not know whether he had threatened the appellant with consequences for not responding to his phone call, but that if he had, it would have been improper.

o. The appellant had told him that he had been running errands that morning.

p. He did not know why the appellant was not released the same day.

[51] The appellant’s legal representative extracted at least 16 concessions pertinent to the issue of whether the second respondent

and/or the first respondents servants (apparently Knox and Kleinhans), once the jurisdictional facts were present or were deemed

to have been present, did or did not exercise their discretion in good faith, rationally and not arbitrarily.[28]

[52] The record reflects that the following interchange took place during Jonker’s re-examination, the respondents’ legal representative evidently attempting to put humpty dumpty back together again after these concessions had been tendered:

‘Ms WYNAND (very soft and indistinct) When you arrested Mr Barnard did you use your discretion? --- Yes your Worship I did use my discretion.

How did you use your discretion? --- (indistinct) Mr Barnard the time that I asked him about these stolen goods and I gave him several time to respond he did not react your Worship.’

[53] Not only was this response inconsistent with what Jonker had said previously, but it also fails to address the question of the exercise of discretion in good faith, rationally and not arbitrarily.

[54] I say so for the following reasons: A peace officer who relies on section 40(1)(b) has to prove the jurisdictional facts in that section. Failure to give a reasonable explanation (if this indeed happened) is at best a jurisdictional fact to justify an arrest. I reiterate that once these facts are present, the discretion whether or not to arrest arises. It is trite that an arresting officer’s decision to arrest must be based on the intention to bring the arrested person before justice, and not on whether a satisfactory account for the possession of goods was forthcoming.[29] Whether the appellant ought to have been arrested and/or charged for contravening section 37 instead of section 36 of the General Law Amendment Act is, to my mind, also neither here nor there. It is in any event so that any inability on the arrestee’s part to give a satisfactory account of his possession is not restricted to the time when the goods were found.[30] In the event of a prosecution ensuing, the courts tend to follow a generous interpretation of the section by allowing the accused person to give an account of his possession at any time before judgment.[31] It follows that the crime is completed only at the moment the trial court finds that he was unable to give a satisfactory account of his possession.[32]

[55] In the circumstances an arrest will be unlawful if the arrestor exercises his discretion to arrest for a purpose not contemplated by the legislature. According to the learned authors Du Toit et al, such an arrest would be effected in fraudem legis.[33] I agree.

[56] The high-water mark of the respondents’ case, having furnished at least 16 reasons why the appellant ought not to have been arrested, was that he was arrested (without a warrant) because he allegedly failed to react when he was asked about the “stolen goods”.

[57] To my mind the respondents, on their own version, failed to exercise their discretion at all in arresting the appellant on the facts which were common cause.

[58] The magistrate, whilst acknowledging that it was part of the appellant’s case in the court a quo that Jonker had failed to exercise his discretion in arresting the plaintiff and that this point had been argued by the appellant’s legal representative, thereafter paid no further attention to this important aspect, and failed to address it at all.

[59] To my mind, this failure caused the trial court to reach a decision which, in the result, could not reasonably have been made by a court properly directing itself to all the relevant facts and principles.[34] This misdirection has resulted in a wrong order and entitles this court to set it aside and to substitute it with an order that the appellant’s arrest was unlawful, and consequently also his detention.

Quantum

[60] It is common cause that the appellant was deprived of his liberty and freedom of movement for an unbroken period of 21 and a half hours.

[61] The appellant has pleaded that during this period of unlawful detention he suffered general damages in respect of embarrassment, deprivation of freedom of movement, loss of amenities of life, impairment of his dignity and contumelia. He claims payment from the respondents in the sum of R100 000 together with interest and costs. None of these demands were admitted on the pleadings.

[62] The appellant did not testify at the trial. Nor did he call witnesses to prove the aforesaid allegations.

[63] The respondents’ counsel has nevertheless candidly conceded in his heads of argument and in court, that the unlawful deprivation of a person’s liberty is a serious infringement of fundamental rights, which should be fairly compensated for. However, where the appellant did not testify in the court below, the usual aggravating factors such as conditions of detention are not present and that this should be borne in mind when this court considers an appropriate award. I agree. The following information regarding the appellant’s arrest and detention are either common cause, or have not been seriously challenged:

a. That he was arrested at 14h20 on 13 June 2014 at a scrap metal dealership which he either owned or managed, in Despatch, Uitenhage;

b. That at least one employee was present when he was arrested;

c. That he was placed in a police vehicle and driven to the local police station;

d. That he was detained in a holding cell at the local police station;

e. That he was released at 11h50 the following day.

[64] The respondents have submitted that compensation ranging between R30 000 and R40 000 would be appropriate in the circumstances. The appellant is pressing for R60 000.

[65] The respondents’ counsel referred me to four authorities, submitting that these would provide useful guidelines in assessing the value of the appellant’s damages:

a. In Minister of Safety and Security and Another v Ndlovu[35] the claimant was awarded compensation of R55 000 for four days’ detention in 2012, which upgraded to 2018 when the lower court judgment in the matter before us was delivered, would amount to R76 230.

b. In Goliath v Minister of Police[36] the plaintiff was awarded R50 000 (which upgraded comes to R52 650) for 38 hours’ detention under notably unpleasant conditions.

c. In Prince v Minister of Safety and Security[37] the plaintiff was detained for a period of about 14 hours and 25 minutes in dirty conditions and was awarded damages of R20 000 which upgraded comes to R26 240.

d. In Nel v Minister of Police[38] the plaintiff was awarded damages of R35 000 in respect of 20 hours’ detention in a cell which was claimed to have been dirty and which bore an unbearable stench.

[66] On the other hand, and in the recent decision of De Klerk v Minister of Police[39] the Supreme Court of Appeal awarded R30 000 in general damages in respect of unlawful arrest and detention for a brief period of two hours. In that matter the appellant was not arrested in public (unlike the matter before us) but reported at the police station. Thereafter he spent about two hours at the police station before he was taken to court. He was not locked up in a holding cell as in the case of the appellant before us. According to Shongwe ADP his suffering was minimal and the deprivation of his liberty and his freedom was highly technical, in that the police failed to obtain a warrant of arrest. With regard to costs, although the quantum of the award was far below the jurisdiction of the High Court, the learned judge nevertheless held that because the matter concerned the unlawful deprivation of the appellant’s liberty he was justified in approaching the High Court. Costs on the High Court scale were accordingly awarded.

[67] In Madze v Minister of Police[40] Plasket J in this Division awarded damages to the plaintiff in the sum R120 000[41] for unlawful arrest and detention for a period just short of four days. No evidence whatsoever was lead concerning the conditions of the plaintiff’s detention and the effect it may have had on him. Plasket J nevertheless took into account that the conditions in police cells anywhere in the Eastern Cape are generally unsavoury and far from comfortable or clean.

[68] In Pallorious and Another v Minister of Safety and Security and Another[42] the plaintiffs, who were detained for 24 hours in police cells were each awarded R50 000[43] for unlawful arrest and detention. Ranchod J found that although the first plaintiff was traumatised and embarrassed by the

arrest, he suffered no degradation beyond which is inherent in being arrested and detained. According to the second plaintiff his family was disturbed about the arrest, but he did not elaborate. Although he claimed that his reputation was affected, he did not present further testimony in this regard.

[69] The plaintiff in Koekemoer v Minister of Police[44] was arrested at Just Metals Scrapyard in Pretoria North (where he was a workshop manager) by members of the police on a charge of possession of suspected stolen copper cables. He was detained in the police cells for approximately five and a half hours. He testified that the experience was painful and embarrassing and that his dignity was degraded. He was awarded R30 000[45] in damages for unlawful arrest and detention.

[70] In the unreported judgment of Eksteen J in this Division, in the matter of Chamberlain v Minister of Safety and Security[46] the plaintiff, who had been unlawfully arrested and detained for 67 hours in police cells was awarded R100 000 in damages.[47] The plaintiff in that matter also elected not to testify. According to Eksteen J, the arrest did not occur in the public eye and there was no evidence of any extraordinary features which may have exacerbated the humiliation ordinarily associated with an arrest. There was no suggestion that any of the police officers had dealt unduly harshly with the plaintiff either at the time of his arrest or during his detention. The evidence did not even establish the status or standing of the plaintiff in society. The evidence also did not suggest that any publicity had been given to the deprivation of the plaintiff’s liberty. Eksteen J nevertheless made this sizeable award based on a consideration of the known facts, the duration of the deprivation of the plaintiff’s liberty and on awards made in numerous decisions to which he had been referred to.

[71] I have given consideration to various cases including those which I have listed, and particularly those which are most comparable to the matter at hand. I accept that these awards are merely a guideline and that they tend to vascilate between what may be regarded as generous to being somewhat penurious. Taking all these factors into account, including the conduct of the police and the paucity of evidence with respect to damages from the appellant, I am satisfied that an award for general damages in the sum of R58 000 would be appropriate in the circumstances.

Costs

[72] It has been contended on the appellant’s behalf that he should be granted costs of trial at a rate higher than that prescribed by the magistrates’ court tariff. In support of this contention the appellant relies on the full bench appeal judgment in this Division in Brand v The Road Accident Fund[48]. That matter however specifically dealt with an appeal against the costs order granted by the magistrate in the trial action, in which forum the question of costs was fully ventilated.

[73] I cannot agree more with the views expressed by Kroon J (with whom Plasket J concurred) in that matter regarding counsel’s fees in magistrates’ court trials. I am however hesitant, in a matter where the subject of the appeal is the magistrate’s dismissal of the plaintiff’s claim, to depart from the costs order originally prayed for by him when he instituted his action. Differently put, there is nothing before me to suggest that the trial magistrate would and should have upwardly deviated from the costs relief sought by the appellant in the court a quo if he did rule in his favour, particularly in that the matter was not a complicated one.

[74] In the result, I make the following order:

a. The appeal is upheld with costs.

b. The magistrate’s order is set aside and it is substituted with the following order:

(i) The plaintiff’s claim succeeds.

(ii) The defendants are directed (jointly and severally, the one paying the other to be absolved) to pay damages to the plaintiff in the sum of R58 000,00.

(iii) The defendants are directed (jointly and severally, the one paying the other to be absolved) to pay mora interest on the aforesaid sum to the plaintiff calculated at the legally prescribed rate, from date of demand to date of payment.

(iv) The defendants are directed (jointly and severally, the one paying the other to be absolved) to pay the plaintiff’s costs of suit in respect of the trial, together with interest calculated thereon at

the legally prescribed rate from 14 days after the date of taxation to the date of payment.

______________________

I.T. STRETCH

JUDGE OF THE HIGH COURT

I agree:

_______________________

S. RUGUNANAN

ACTING JUDGE OF THE HIGH COURT

Heard on: 17 May 2019

Judgment handed down: 31 May 2019

Counsel for the appellant: S. Stretch

Instructed by Lessing, Heyns, Keyter & Van der Bank Inc.

Uitenhage

Locally represented by Neville Borman & Botha

Grahamstown

Ref. FARAI NDUMA/LES20056

Counsel for the respondents: B.L. Boswell

Instructed by the State Attorney

Port Elizabeth

Locally represented by N.N. Dullabh & Co

Ref. M. WOLMARANS

[1] Schedule 1 includes offences for which the perpetrator may be incarcerated for more than six months Without the option of a fine.

[1] Schedule 1 includes offences for which the perpetrator may be incarcerated for more than six months

Without the option of a fine.

[2] Minister of Law and Order v Hurley 1986 (3) SA 568 (A) pp 587-589; Lombo v ANC 2002 (5) SA 668 (SCA) para 32

[2] Minister of Law and Order v Hurley 1986 (3) SA 568 (A) pp 587-589;

Lombo v ANC 2002 (5) SA 668 (SCA) para 32

[3] Mhaqa v Minister of Safety and Security 2001 (2) All SA 534 (Tk)

[4] As in the matter before us.

[5] By virtue of the provisions of section 40(1)(b) of the Act, as indeed pleaded by the defendants.

[6] Duncan v Minister of Law and Order 1986 (2) SA 805 A at 818G-H; Minister of Safety and Security v Sekhoto and another 2011 (1) SACR 315 (SCA) at [6] and [28]

[6] Duncan v Minister of Law and Order 1986 (2) SA 805 A at 818G-H;

Minister of Safety and Security v Sekhoto and another 2011 (1) SACR 315 (SCA) at [6] and [28]

[7] Naidoo v Minister of Police and others 2016 (1) SACR 468 (SCA) at [40]-[41]

[8] 2016 (2) SACR 540 CC at [42] et seq

[9] MR (supra) at [42]

[10] As traversed in Duncan and Sekhoto (supra)

[11] Raduvha v Minister of Safety and Security and another 2016 (2) SACR 540 (CC)

[12] According to the cell register the appellant was detained at 14h20 and released the next day at 11h50.

[13] During re-examination however, Jonker testified that it would have been impossible to take the appellant to court on the day of his arrest due to various duties and time constraints.

[14] S v Wilson 1962 (2) SA 619 (A) 624E-F; R v Bergh 1927 OPD 177

[14] S v Wilson 1962 (2) SA 619 (A) 624E-F;

R v Bergh 1927 OPD 177

[15] S v Mataung & others 1962 (3) SA 611 (O); S v Nader 1963 (1) SA 843 (O) 847F

[15] S v Mataung & others 1962 (3) SA 611 (O);

S v Nader 1963 (1) SA 843 (O) 847F

[16] S v Henman 1974 (2) All SA 595 E at pp 597-599

[17] Du Toit et al: Commentary on the Criminal Procedure Act: Juta Revision Service 60, 2018 5-14E

[18] Nkosi v Minister of Police & another (unreported, GP case no 51083/2015, 2 August 2017 at [24]

[19] Louw & another v Minister of Safety and Security & others 2006 (2) SACR 178 (T) 183j-184d; Sibuqashe v Minister of Police & another (unreported, ECB case no 527/2011, 22 October 2015 at [57]

[19] Louw & another v Minister of Safety and Security & others 2006 (2) SACR 178 (T) 183j-184d;

Sibuqashe v Minister of Police & another (unreported, ECB case no 527/2011, 22 October 2015 at [57]

[20] S v Miller 1974 (2) SA 33 (RA) 35E; Olivier v Minister of Safety and Security & another 2008 (2) SACR 387W 394i-j, 395f-g

[20] S v Miller 1974 (2) SA 33 (RA) 35E;

Olivier v Minister of Safety and Security & another 2008 (2) SACR 387W 394i-j, 395f-g

[21] Du Toit (supra) 5-14M-N

[22] 2008 1 SACR 56 (CC) at [18]-[19]

[23] Unreported KZD case no 11275/2012, 5 October 2017 at [37]

[24] Per Harms DP in Sekhoto (supra) at [45]-[49]

[25] At 186b

[26] At 187d

[27] At 187e-f

[28] See Devenish v Minister of Safety and Security (unreported GJ case no 07151/2013, 20 May 2916) at [101]- [106]

[28] See Devenish v Minister of Safety and Security (unreported GJ case no 07151/2013, 20 May 2916) at [101]-

[106]

[29] Section 38 of the CPA sets out the methods of securing attendance of an adult accused in court for the purposes of his or her trial. They are arrest, summons, written notice or the service of an indictment.

[29] Section 38 of the CPA sets out the methods of securing attendance of an adult accused in court for the

purposes of his or her trial. They are arrest, summons, written notice or the service of an indictment.

[30] R v Ismail 1958 (1) SA 206 (A) 212D-E

[31] Osman v Attorney-General of Transvaal 1998 (1) SACR 28 (T) 30e-f

[32] CR Snyman: Criminal Law 2014 6ed 518

[33] Du Toit (supra) 5-14M

[34] See Dengetenge Holdings (Pty) Ltd v Southern Sphere Mining Development Co Ltd 2014 (5) SA 138 (CC) at 170G

[35] [2013] JOL 30437 (SCA)

[36] [2017] ZAECGHC 119 (14 November 2017)

[37] [2013] ZAECGHC 28 (23 May 2013)

[38] [2018] ZAECGHC 1 (23 January 2018)

[39] 2018 (2) SACR 28 SCA

[40] 2016 (7K6) QOD 229 (ECG)

[41] Upgraded to 2018 would come to R140 400.

[42] 2017 (7K6) QOD 320 (GP)

[43] Upgraded would come to R55 950.

[44] 2017 (7K6) QOD 332 (GP)

[45] Upgraded comes to R31 590.

[46] ECD, Port Elizabeth case no 3500/09 handed down 8 May 2014

[47] Which upgraded to 2018, would come to R124 200.

[48] Unreported judgment of the Eastern Cape, Grahamstown case no CA170/09, 30 November 2009