Gasa v Minister of Police (368/2015) [2017] ZAECMHC 32 (8 August 2017)

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN

THE HIGH COURT OF SOUTH AFRICA

{EASTERN CAPE LOCAL DIVISION – MTHATHA}

Case NO 368/2015

In the matter between:

KHAYA

GASA Plaintiff

And

MINISTER

OF POLICE Defendant

JUDGEMENT

JOLWANA AJ

[1] Plaintiff and his friend were arrested in Butterworth on the 07 January 2015. Plaintiff thereafter instituted proceedings

claiming damages for wrongful arrest and detention.

[2] Defendant admitted the arrest and detention, but denied that they were unlawful.

[3] The evidence of the defendant is that on the day in question the arresting officer constable Mazimela and constable Rubushe

reported for duty as usual. They were told to be on a look out for a motor vehicle with registration letters and numbers [H...] which was suspected of involvement in an armed robbery at Komga in December a few weeks earlier. Mazimela testified that he and his colleague were doing crime prevention duties which included doing patrols in the town of Butterworth.

[4] While doing patrols at Meriman Street in the CBD, they saw two men changing number plates by removing the number plate [H...] which was on top of [N...]. They stopped near the vehicle and instructed the plaintiff and one Mabhongo who was fiddling with the number plates to raise their hands and put them on top of the car.

[5] They searched them and found a firearm on Mabhongo who could not produce a licence for the firearm. Mabhongo told them that the firearm belonged to one Njemla of Payne Location in Mthatha. The plaintiff told them that the vehicle belonged to his girlfriend who is a nurse in Durban. Plaintiff was then arrested together with Mabhongo on charges of possession of an unlicensed fire arm and a traffic offence.

[6] The plaintiff appeared in court on the 08 January 2015 and was remanded in custody for a formal bail application. The reason for postponement was the fact that the state was opposing the release of the plaintiff on bail hence the need for a formal bail application. The matter was accordingly postponed to the 15 January 2015. However, on the 15 January 2015 the state was no longer opposing the release of the plaintiff on bail and he was accordingly released on R500-00 bail.

[7] It is common cause that the plaintiff was arrested without a warrant. The defendant’s case was that the police officers were entitled to arrest the plaintiff in terms of section 40 (1) (a) and (b) of the Criminal Procedure Act 51 of 1997, “the Act”. Section 40 (1) provides that:

“a peace officer may without a 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 an offence of escaping from lawful custody”.

[8] Both arresting officers could not explain why they could have been or were entitled to arrest the plaintiff on charges of unlawful

possession of a firearm which they found, not on the plaintiff but on the waist of Mabhongo . In Addition to the firearm being found on him, Mabhongo told them that the firearm belonged to his uncle. It was clear even there at the scene of the arrest that the plaintiff had nothing to do with the fire arm. It is therefore clear that the arresting officers could not have legally been entitled to arrest the plaintiff for possessing or being in possession of an unlicensed fire arm it being their version that they found the firearm on the waist of Mabhongo.

[9] The second charge for which the plaintiff was arrested and detained is a traffic offence which is not specified in the plea. However, the arresting officers testified that they did not know the name of the traffic offence for which they were arresting the plaintiff. They also did not know the regulation in respect of the traffic offence. It appears from the defendant’s written submissions that the plaintiff was arrested for the contravention of regulation 35 (6) (a) of the Regulation published in term of Act 93 of 1996. This regulation reads as follows:

“no person shall operate on a public road a motor vehicle: in or on which a number plate is carried on which a licence number appears which is not applicable to such motor vehicle or anything purporting to be a licence number, unless he or she provides evidence that such plate was not carried with criminal intent”.

[10] Even if it were to be accepted that the plaintiff’s conduct which was described in evidence by the defendant as fiddling with the number plates, is an offence, no evidence was led to show that it could in some way be covered under section 40 of the Act. What is clear is that the plaintiff was arrested for being in the company of Mabhongo who was in possession of a firearm for which he did not have a licence. It is also clear that plaintiff was wrongly arrested hence he ended up being released on R500-00 bail which was not opposed after some nine days of being in detention.

[11] When the defendant closed its case the plaintiff also closed his case without testifying. The defendant lurched on the fact that the plaintiff did not testify and submitted that the version of the defendant which was not gainsaid should be accepted and the court should, on this basis alone, dismiss plaintiff’s claim. In making this submission Mr Rili, defendant’s counsel missed a very important aspect relating to cases of arrest and detention. That is the fact that the arrest and detention are prima facia unlawful. It is the defendant that must justify the arrest and detention. Once arrest is admitted the plaintiff does not have to testify in order to prove that the arrest was unlawful. The onus is that of the defendant to prove that the arrest and detention were, in fact, lawful.

[12] In Lentikile Patrick Seleko v Minister of police[1], the provisions of section 40 (1) (b) of the Act were summarised. The court stated that the arrester must be a piece officer, the arrester must entertain a suspicion, the suspicion must be that the arrestee committed an offence referred to schedule 1 other than the offence of escaping from lawful custody and the suspicion must rest on the reasonable grounds.

[13] Where the plaintiff was wrongly arrested in circumstances in which he should not have been arrested in the first place there is no room for evaluation of the reasonableness of the suspicion. The evidence of the arresting officer similarly point to the fact that the plaintiff should not even have been arrested. It follows that the plaintiff must succeed in his claim.

[14] It is clear that the rights of the plaintiff were violated by the arresting officer in the exercise of public power in circumstances in which one can only conclude that public power was abused. The Constitutional Court has expressed itself on the exercise of public power in cases of arrest and detention. In Minister of Justice and Constitutional Development and another v Zealand[2] the court stated that:

“the right to freedom is entrenched in the Constitution of the Republic of South Africa ,1996. When a person is arrested and detained public power is being exercised by the executive administration of the state which may not exercise any power or perform any function beyond what is conferred by law. This is in accordance with the doctrine of constitutional legality, an incident of the rule of law which is the foundational value of the Constitution”.

[15] In this case the plaintiff spent nine days in detention because the state initially opposed bail resulting in the matter being postponed for formal bail application. On the 15 January 2015, the date on which the formal bail application was supposed to be heard, the state changed its mind and decided not to oppose bail. The plaintiff was then released on R500.00 bail. This puts a big a question mark on the decision making process from arrest and detention and then to opposing bail. All of this was at best irresponsible and grossly negligent and an abuse of public power and the violation of the constitutional rights of the plaintiff.

[16] In assessing damages each case should be considered on its own merits as a general principle. This principle was restated as follows by Bosiels JA in Minister of Safety and Security v Tyulu.[3]

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

[18] In this case the plaintiff spent nine days in detention for no reason other than the arbitrary use of public power by the arresting

officers who had no or scant regard for plaintiff’s constitutional rights, which are sacrosanct.

[19] In the result the following order will issue.

1. The defendant is directed to pay to the plaintiff on amount of R160 000.00 as and for damages in respect of all heads under which damages were claimed.

2. The Defendant is directed to pay interest on the amount of R160 000.00 to be calculated at the prescribed rate of interest from a date fourteen days after date of judgment to date of payment.

3. The defendant is directed to pay the plaintiff’s costs of suit together with interest hereon, such costs to be calculated at the prescribed rate of interest from a date fourteen days after allocatur to date of payment.

SM

JOLWANA

JUDGE OF THE HIGH COURT (ACTING)

Appearances:

Counsel for the Applicant: Mr Ngumle

Instructed by Singqumba Incorporated

No 56 Sprigg Street

MTHATHA

Counsel for the Respondent: Mr Rili

Instructed by State Attorney

Broadcast House

94 Sissons Streets

Fortgale

Matter heard on: 20 June 2017

Judgment delivered on: 08 August 2017

[1] ( 931/2011) ZANWLIC 40

[2] 2007 (2) SACR 401 at 404- F-G

[3] 200 9(5) SA 85 (SCA)