Minister of Police v Seleke (A306/2016) [2019] ZAGPPHC 468 (22 August 2019)

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

(NORTH GAUTENG HIGH COURT, PRETORIA)

Case No: A 306/2016

22/8/2019

In the matter of:

Minister of Police

Appellant

And

Deikhona Masego Seleke

Respondent

JUDGMENT

Maumela J.

1. This is an appeal against the judgment and order handed down by the Regional Magistrate in Pretoria on the 21st of August 2015. The Appellant is the Minister of Police. The Respondent is Deikhona Masego Seleke.

BACKGROUND.

2. The respondent instituted action in the Regional Court Pretoria, (court a quo). He sought relief at an amount of R 250,000-00. This claim was based upon allegations of unlawful arrest and detention which allegedly took place on the 11th of August 2014. Appellant admits the arrest and detention but denies that it was unlawful. The learned magistrate delivered judgment in favour of the respondent on the 21st of August 2015 . The judgment was in favour of the Respondent.

BRIEF FACTS.

3. On the 11th of August 2014, (the day of the incident), at Northam, the Respondent was arrested without a warrant by members of the South African Police Services, ('members'). At the instance of the members, he was detained at Northam Police Station in Limpopo for one day. The Respondent contends that the arrest and detention were unlawful. On the 12th of August 2014, the Respondent appeared before a magistrate at Northam Magistrates Court whereupon he was released on warning. On the 29th of August 2014, the case against the respondent was eventually withdrawn due to lack of sufficient evidence.

4. The Respondent contends that on the day of the incident the members of the respondent were acting within the course and scope of their employment as police officers under the South African Police Services. He submits that as a result of their arrest he suffered

loss to the amount of R 250 000-00. According to the respondent this amount is in respect of general damages, loss of freedom, impairment of dignity, inconvenience, contumelia and embarrassment. Respondent instituted action which was defended.

THE ISSUE.

5. The court is to determine whether or not the court a quo was correct in finding that arrest of the respondent was unlawful. It is trite that the Appellant, who was the Defendant before the court a quo bore the onus to prove that the arrest and detention were lawful. The learned magistrate stated that she is “not satisfied" that the Defendant discharged its onus on a balance of probabilities, of proving the justification for the arrest in the sense that the suspicion harboured by the arresting officer was a reasonable suspicion.”

6. The Defendant admits the arrest and detention as well as the date on which it all happened, the 11th of August 2014. However Defendant denies liability for the arrest and detention. Defendant contends that the arrest and detention were lawful. The court has to determine whether or not the court a quo was correct in deciding that the Respondent discharged the onus on him to prove that the arrest and detention were not lawful.

CONDONATION.

7. These appeal proceedings were preceded by an application for condonation where the Appellant sought condonation as follows:

4.1. That non-compliance with Rule 50(4) of the Uniform Rules of Court be condoned;

The application for condonation was not opposed and was granted.

8. Subject to specific requirements, section 41 (1) (b) of the Criminal Procedure Act 1977: (Act No 51 of 1977) empowers the police; ('peace officers'), to effect arrests without a warrant. To that end, this section provides the following:

"(1) A peace officer may without warrant arrest any person·

(b). Who is reasonably suspected of having committed or of having attempted to commit an offe more interesting letters nce."

9. It is trite that where claims against the Minister of Law and Order are based on allegations of unlawful arrest and arrest is not disputed, then the onus falls upon the defendant, (the Minister of Law and Order), to prove before court that the arrest and the subsequent detention were justified. In the case of Minister of Law and Order and Others v Hurley and Another[1] the court stated the following: "Having concluded that the Court was not precluded from considering whether Coetzee had reasonable

grounds for his aforesaid belief concerning Kearney, I now tum to the question of onus, ie the question whether the appellants had to prove that Coetzee had the required belief, or whether the respondents had to prove that he did not. The Court aquo did not decide the question, but held (at 725D - E) that, even if one assumed that the onus was on the respondents, they had discharged ff. I deal with the question in the paragraphs that follow. Arrests without warrant by peace officers acting under the B powers of arrest conferred upon them by the Criminal Procedure Act 51 of 1977 and its predecessors (Act 31 of 1917 and Act 56 of 1955) have on many occasions given rise to disputes in which the lawfulness of an arrest was in issue, and in cases of this kind the question of onus may be of vital importance. It has been held, or assumed, in a number of cases decided in the Provincial and Local Divisions of the Supreme Court that the onus lies on the peace officer who made the arrest in issue to prove that he acted lawfully, i.e. that he acted within the powers of arrest conferred upon him by statute. Some of those decisions are referred to in Botha v Lues[2]. In that case a Full Court of the Orange Free state Provincial Division dissented from those decisions and held that the onus was on the plaintiff, who claimed damages on the ground of an alleged wrongful arrest, to establish the unlawfulness of the arrest of which he complained. The basis of this finding by the Court was that, if a peace officer who is empowered by statute to arrest a person whom he reasonably suspects of having committed an offence proceeds to arrest someone whom he so suspects, the arrest cannot be unlawful, since the exercise of a power which is conferred by law cannot constitute unlawfulness ("uitoefening van 'n bevoegdheid (en plig) wat van regswee verleen word kan nie wederregtelikheid daarstel nie": at 691C - D). Since unlawfulness is necessary to establish liability, the Court said (at 6910- E), a plaintiff who complains of an arrest can succeed in his claim only if he establishes that the person who arrested him did not have the required suspicion. When this decision came on appeal to this Court (see Botha v Lues[3], CORBETT JA found it unnecessary to decide the question of onus. He did say, however, that it was doubtful whether the decision of the Provincial Division concerning the question of onus could be reconciled with what was said in certain decisions of this Court. The learned Judge referred to Mabaso v Felix[4] and Ramsay v Minister van Polisie en Andere[5]. In the judgment of the Provincial Division no reference was made to the judgment of this Court in Brand v H Minister of Justice and Another[6] a case in which the appellant claimed damages for alleged unlawful arrest and detention in consequence thereof. In the course of his judgment OGILVIE THOMPSON JA, dealing with the question of onus, said (at 714F – H)."

10. In the case of Duncan v Minister of Law and Order[7] the court stated the following: "It may, however, be conducive to clarity if, before setting out my reasons for this view, the basis on which an apparently lawful arrest may yet be held to be unlawful, is considered. 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 in Schedule 1 to the Act (other than one particular offence).

(4). That suspicion must rest on reasonable grounds."

EVIDENCE.

11. Ronnie Lephoka Khosa testified for the state. He stated under oath that he is the Investigating Officer in the case against the respondent. He stated that before arresting the respondent he contacted one Mr Herman per telephone. In this conversation he was provided with the name and contact numbers of a further witness; namely Mr Piet Pillay. He proceeded to obtain a statement from Pillay and one Mr Belle. On 11th of August 2014 he obtained a written statement from one Mr Ramokoka. The witness testified that he interviewed all the witnesses in order to conduct a proper investigation in the matter.

12. He testified that it was on the basis of further testimony from the people he interviewed that he took the decision to arrest and detain the respondent. He testified that the evidence in "A1" linked the respondent to the commission of the offence in this case. According to him the said evidence is as follows: "The applicant as the supervisor of the company ordered as well as participated in removing parts of these vehicles belonging to the company. .. . That will be Mr Joshua and Mr Tshepo Ramokoka and the complainant as well."

ISSUES.

13. The Appellant contends that the court a quo erred in finding that the arrest of the Respondent was unlawful. Appellant points out that the Respondent was arrested because he was a linked to the commission of a crime. It found that the statement by the complainant is not sufficient to form a basis for a reasonable suspicion that the Respondent committed the offence. The appellant contended that the totality of the evidence at hand was sufficient for rendering the arrest to be lawful. Among others the evidence implicated the Respondent for stripping parts

from vehicles.

14. The court is to determine whether the court a quo erred in finding that the Appellant failed to discharge the onus on it; namely to prove that the arrest and detention was lawful. Should it be that the court a quo was correct, the court is to determine whether it was correct or not for the court a quo to grant an award of compensation to the Respondent at an amount of R 50 000-00.

15. It is common cause that the Respondent was arrested and detained by members of the Appellant on the 12th of August 2014 where after he was detained over 7 hours. It is common cause therefore that the onus lay with the Appellant to prove that there was justification for the arrest and detention which rendered it lawful. The Appellant contends that the available evidence is such that should have led the court a quo to find that it discharged the onus on it.

16. The Appellant did not advance a plausible explanation for why its members resorted to the arrest of the Respondent. It did not lead evidence to prove that arrest of the Respondent was the only option available at the disposal of its members. Neither was a plausible reason advanced for why the Respondent was arrested and detained on the basis of evidence that was not sufficient to secure a conviction against him. The court finds that was no sufficient reason for the respondent to be arrested.

17. The appellant contends that the court a quo erred in finding that the Respondent discharged his onus and that the Appellant failed to discharge the onus on it, namely proving that the arrest and detention of Respondent was lawful. It is trite that in instances where appeal is against the finding of the court a quo, the appellate court should be careful not to interfere with the finding of the trial court unless it finds that the court a quo erred in arriving at the finding at which it did.

18. In the case of S v Francis[8], Appellate Powers: "The powers of a Court of appeal to interfere with the findings of fact of a trial Court are limited. In the absence of any misdirection the trial Court's conclusion, including ffs acceptance of a witness' evidence is presumed to be correct. In order to succeed on appeal, the appellant must therefore convince the Court of appeal on adequate grounds that the trial Court was wrong in accepting the witness' evidence - a reasonable doubt will not suffice to justify interference with its findings. Bearing in mind the advantage which a trial Court has of seeing, hearing and appraising a witness, it is only in exceptional cases that the Court of appeal will be entitled to interfere with a trial Court's evaluation of oral testimony.”

19. In this case the court found no basis upon which to conclude that the court a quo was wrong in concluding that the appellant did not discharge the onus on it to prove that the arrest and detention of the Respondent was justified. The appeal against the finding of the court a quo stands to be dismissed.

20. The Appellant also contends that the court a quo erred in determining the amount payable to the Respondent as compensation to be R 50 000-00. It argues that the amount determined is not fair and reasonable and that this court ought to interfere by determining a lower amount.

21. The Appellant submits that in the event where the court finds the arrest of the respondent to have been unlawful, it should find that the court a quo erred in determining the amount of damages due to the Respondent to amount to R 50,000-00. The Appellant referred to the case of: Minister of Safety and Security v M Tyulu[9] where the court stated as follows: "When assessing 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 much needed 'solatium' for his or her injured feelings. It is therefore crucial that serious attempts are made to ensure that the damages awarded are commensurate with the injury inflicted."

22. The court held further in the Tyulu case[10] that the length of the period over which a person remains detained after arrest "is not the only factor to be considered when determining damages. "The court heard that all the surrounding circumstances ought to be taken into consideration in order to determine the quantum of damages to be awarded. This approach was also endorsed in the case of Minister of Safety and Security v Seymour DT (2006) SCA, at paragraph 17) where the court heard as follows: 11the assessment of awards of general damages with reference to awards made in previous cases is fraught with difficulty. The effects of a particular case need to be looked at as a whole and few cases directly compatible.

23. The Respondent was detained at Northam Police Station. He made a court appearance after one day of detention. The Appellant argues that the court a quo erred in determining the amount of compensation payable to the respondent to be R 50 000-00. The Appellant submits that an amount of R 5 000-00 can suffice as compensation payable to the Respondent. The court is to determine the correctness or otherwise of the amount determined is sufficient for purposes of compensation to the Respondent.

24. In the reportable case of Rahim v The Minister of Home Affairs[11] the Supreme Court of Appeal held that the following factors are relevant for determining an appropriate award in a case of deprivation of liberty:

(i). The circumstances under which the deprivation of liberty took place.

(ii). The conduct of the defendants and

(iii). The nature and duration of the deprivation.

25. To be able to determine whether the court a quo was correct or not in determining the amount of compensation, the court has to consider decisions around compensation made by courts in similar cases. In the case of Rahim[12], foreign nationals were awarded different amounts ranging from R 3 000-00 to R 2 000- 00. The court held that they had not adduced any evidence to show that beyond the arrest and detention, they experienced any other humiliation, malice on the side of the defendant and that they were detained in unbearable conditions. In the case of Minister of Safety and Security v Seymour[13], the Respondent, who was a business man at the time of his arrest, was awarded an amount of R 90 000-00 compensation for a period of 5 days in detention.

26. The above dicta notwithstanding, it is undeniable that compensation for unlawful arrest is premised on consideration among others of the discomfort brought to bear upon the plaintiff as a result of the deprivation of freedom he or she suffered due to the unlawful arrest. If that be the case the length of the period over which the plaintiff suffered such inconvenience ought to play a major role in determining the amount of compensation awarded.

27. In the case of Sondlo v Minister of Police[14], the court cautioned that: "where the coffers of the state to which citizens of the country make a contribution are to be the source for payment of damages, some restraint is called for when

awarding damages." The Appellant argues that in determining the amount of compensation payable to the respondent in this case the court a quo did not exercise the requisite restraint. However it would not be acceptable for the exercise of restraint to be allowed to undermine the measure to which arrest, especially unlawful arrest goes to undermine the rights of the victim and the inconvenience that the arrest and detention brought to bear against him or her.

28. Naturally, arrest and detention are an invasion against the right to the personal liberty, and the right of individuals to free movement. Whenever such rights get undermined, it should be on reasons that justify it. In the case of Louw and Another v Minister of Safety and Security and Others[15], Bertelsmann J held that: "An arrest is a drastic interference with the rights of the individual to freedom of movement and to dignity. In the recent past, several statements by our Courts and academic commentators have underlined that an arrest should only be the last resort as a means of producing an accused person or a suspect in court. The court cited the case of Minister of Correctional Services v Tobani[16] with approval.

29. It is settled that the arrest of suspects should always be a measure for last resort. In the case of Minister of Minister of Correctional Services v Tobani[17], the Court held as follows: "So fundamental is the right to personal liberty, the lawfulness or otherwise of a person's detention

must be objectively justifiable regardless even of whether or not he was aware of the wrongful nature of the detention. If an accused

person or a suspect does not present a danger to society, if in all probability he will stand his trial and will not abscond and if such a person will not harm himself and is not in danger of being harmed by others and may be able and keen to dispose the allegations against him or her; an arrest will ordinarily not be the appropriate way of ensuring the accused's presence."

30. The Appellant did not provide a plausible explanation for why its members resorted to the arrest of the Respondent. It did not adduced evidence proving that the arrest and detention of the respondent was a measure of last resort. It did not advance reasons why the Respondent was arrested and detained whereas there was no sufficient evidence on the basis of which to proceed with his prosecution.

31. The Appellant cited several decisions involving arrest and detention without a warrant and compensation in respect thereto. To that end, the following awards also provide some indication of how other courts have viewed incursions upon personal liberty (they are by no means exhaustive of the cases that have confronted the issue). In Solomon v Visser[18], a 48 year old businessman who was detained for seven days, first in a police cell and then in a prison, was awarded R4 000 (R136 000). In Areff v Minister of Polisie[19] this court awarded a 41 year old businessman who was arrested and detained for about two hours R 1000 (R24 000).

32. In Liu Quin Ping v Akani Egoli (Pty) Ltd[20] a businessman who was unlawfully detained for about three hours was awarded R'12 000 (R16 978). In Manase v Minister of Safety and Security[21], in which a 65 year old businessman was unlawfully detained for 49 days, incarcerated at times with criminals, the sum of R90 000 (R102 000) was awarded. In Seria v Minister of Safety and Security[22], a professional man who was arrested and detained in a police cell for about 24 hours, in the company of a drug addict, was awarded R50 000 (R52 000).

33. It is fact that money can never suffice as solatium for the deprivation of what in truth can never be restored. At the same time, there is no empirical measure for the loss. The awards referred to reflect no discernable pattern other than that our courts are not extravagant in compensating the loss. It needs also to be kept in mind when making such awards that there are many legitimate calls upon the public purse. Other rights that are no less important also have to receive protection.

34. In the case of Liebenberg v Minister of Safety and Security[23], an 18 year old appellant was involved in a motor vehicle accident en route home from school and she was taken to a local hospital for blood sample in the back of a Police van. The court found that the circumstances surrounding the conveyance of the appellant to the hospital and her being made to wait for two hours amounted to an arrest and such arrest was unlawful. As damages, the court awarded the applicant R 35,000-00.

35. In the case of Phasha v Minister of Police[24], the plaintiff was arrested on a charge of attempted theft and spent 9 hours in custody before he could be released on R 1000-00 bail. The court awarded him R 80,000-00.

36. The appellant contends that an amount of R 50,000-00 as an amount of compensation for unlawful arrest is not fair and reasonable. Appellant submits that R 5000-00 should be the amount awarded as compensation. However the court has to bear in mind the invasion that arrest and detention brings to bear upon individuals. The nature of it calls upon courts to take measures to dissuade organs of state from unnecessarily reverting to arrest and detention were other options are available at the disposal of members of organs of state.

37. Considering all of the circumstances the Respondent has a head to contend with as a result of the arrest and detention without a warrant, the court determines that the appeal against the findings and the determination of the amount of compensation made by the court a quo stands to be dismissed.

38. In the result, the appeal against the whole judgment of the court a quo stands to be dismissed and the following order is made:

ORDER.

1. The appeal against the whole judgment of the Regional Magistrate in Pretoria delivered on the 21st of August 2015 is dismissed.

2. The appellant shall pay the costs of the appeal.

Maumela TA.

Judge of the High Court of South Africa.

[1] 1986 (3) SA 568 (A).

[2] 1981 (1) SA 687 (O).

[3] 1983 (4) SA 496 (O).

[4] 1981 (3) SA 865 at page 872 H - 874 B.

[5] 1981 (4) SA 802. at page 807 and 817 F -818 B.

[6] 1959 (4) SA 712 (A).

[7] 1986 (2) SA 805 (A)

[8] 1991 (1) SACR 198 (A)

[9] 2009 (5) SA 85 {SCA}, at paragraph (26)

[10] Supra

[11] (965/2013) (2015 ZASCA 92 (29 May 2015).

[12] (supra)

[13] OT (2006) SCA 67 (RSA).

[14] (14842/2011) 2012 ZAPGJPHC 140 (21 August 2012), at paragraph (10)

[15] 2006 (2) SACR 178 (T) at 185 b - e

[16] Supra.

[17] 2003 (5) SA 126 (E)

[18] 1972 (2) SA 327 (C)

[19] 1977 (2) SA 900 (A) Esp 914H-915A The 1977 index 1s 194

[20] 2000 (4) SA 68 (W) The 2000 index is 2 719

[21] 2003 (1) SA 567 (Ck) The 2003 index is 3 392

[22] 2005 (5) SA 130 (C) The 2005 index is 3 681

[23] 2003 (JHO) 31028 (ECG)

[24] 2014 (JHO} 3173 (GSJ) SGHC