Minister of Safety and Security v Jaftha (CA310/2014) [2016] ZAECGHC 6 (1 March 2016)

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

NOT REPORTABLE

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION, GRAHAMSTOWN)

Case no: CA310/2014

Date heard: 26 February 2016

Date delivered: 1 March 2016

In the matter between

MINISTER OF SAFETY AND SECURITY Appellant

vs

KEVIN JAFTHA

Respondent

JUDGMENT

PICKERING J:

[1] The appellant herein is the Minister of Safety and Security. The respondent is Kevin Jaftha. For the sake of convenience I shall refer to the appellant and the respondent as the defendant and plaintiff respectively.

[2] On Tuesday 29 November 2011 the plaintiff herein was arrested, without a warrant, on a charge of rape by Warrant Officer Ndambuza.

Plaintiff was thereafter detained at Bethelsdorp Police station. On Friday 2 December 2011 he was taken to court. Alleging that his arrest and detention were unlawful plaintiff instituted action against defendant.

[3] The magistrate found that defendant had failed to discharge the onus of justifying the arrest and detention. He awarded plaintiff damages in the sum of R80 000,00 in respect of plaintiff’s detention from 29 November to 9 December. This was despite plaintiff’s attorney expressly stating in the cause of his submissions to the magistrate that he was claiming damages only in respect of the period of plaintiff’s detention up to 2 December 2012. Defendant now appeals against the whole of this judgment.

[4] The defendant adduced only the evidence of the arresting officer, Warrant Officer Ndambuza, in seeking to discharge the onus.

[5] At the time that Ndambuza formed his suspicion that plaintiff had committed rape he had before him a statement made by complainant at 17h30 on 29 November 2011, a statement made by complainant’s mother, apparently at the same time, and a form J88 completed by Dr. Moodley at 21h10 on 29 November 2011.

[6] In her statement the complainant, a 17 year old girl, stated that she resided in [.....], Bethelsdorp. On Sunday 27 November 2011 she visited plaintiff’s house, also in [.....], together with certain friends. They drank there and complainant became intoxicated. Her friends eventually left at approximately 21h00. They told complainant that she should sleep over at plaintiff’s house. Complainant decided to do so and fell asleep on the bed. In the early hours of the morning she woke up to find plaintiff on top of her having sexual intercourse with her. She tried unsuccessfully to push him off, hitting him with her fists and shouted at him to stop, which eventually he did.

[7] In her statement complainant’s mother said that complainant left her house on the afternoon of 27 November 2011, saying that she was going to visit her friends. When she had not returned by 21h00 complainant’s mother sent her an sms asking where she was. Complainant replied, saying she was in Uitenhage with her school friends. She said she could not come home because she was waiting for a lift which had not materialised.

[8] The following day, Monday 28 November, complainant’s mother went to work. On her return in the afternoon she found complainant at home. She was cross with the complainant for having slept out and accordingly did not immediately question her about her whereabouts the previous night. Eventually, a few hours later she did ask the complainant where she had been and complainant told her that she had been afraid of her father and had therefore lied about being in Uitenhage. She then reported to her mother what had happened at plaintiff’s house. According to complainant’s mother she was so upset at what complainant told her that she did not take her to the police because she was waiting for her husband “to be part of this.”

[9] It is common cause that the matter was reported to the police the next day, 29 November, that the statements were then taken and complainant was examined by the doctor.

[10] Dr. Moodley’s report contained in form J88 states, inter alia, as follows:

“Attended special school. Mentally challenged. Admits to alcohol the night before the incident.”

Dr. Moodley recorded that there was bruising of the para-urethral folds as well as bruising and tears of the fossa navicularis. The hymen was ruptured. There was bleeding as well as tears in the vagina. Dr. Moodley concluded that his findings were “consistent with forced rupture of vagina and vaginal penetration.”

[11] In the light of this information Warrant Officer Ndambuza proceeded with the complainant to plaintiff’s house where, at approximately 22h00, he arrested plaintiff. He denied that plaintiff had given him an exculpatory statement to the effect that complainant had had sexual intercourse with another man on the night in question.

[12] In his judgment the magistrate found that Ndambuza had before him two conflicting versions and that in the circumstances he could not have formed a reasonable suspicion that plaintiff had committed rape without having obtained further information pointing to plaintiff’s guilt. In particular, so he stated, Ndambuza “did not do a DNA test. He did not corroborate the version and evidence of the complainant. He did not consider the statement by complainant’s mother when the complainant lied about her whereabouts. He did not take into regard that the complainant

was in her own version was drunk. The fact that the rape was reported only on the 29.11.11 about two days later.”

[13] In my view the magistrate erred in his approach to the evidence.

[14] I should state at the outset that I do not understand the relevance of the reference to DNA tests. The magistrate could not but have been aware that the analysis of any DNA material in the usual course of events takes months, if not longer. Many arrests for rape are effected without recourse to any positive DNA results. The magistrate accordingly should not have taken this into account as a factor.

[15] It is also clear, in my view, that the magistrate failed properly to analyse the evidence which Ndambuza had before him at the time that he effected the arrest. Had he done so he would not have concluded that Ndambuza’s suspicion that plaintiff had committed rape was unreasonable.

[16] It is so that the complainant, by her own admission, was drunk on the night in question. It appears, however, from her statement and that of her mother that she was not so heavily under the influence of alcohol that she was unable to reply to her mother’s message at 21h00 telling her mother that she was in Uitenhage. Furthermore, the complainant fell asleep at approximately 21h00. The incident only occurred approximately five hours later in the early hours of the morning. Ndambuza had no reason to believe in the circumstances that complainant’s state of intoxication had in any way affected her ability to identify her assailant. Complainant identified plaintiff, whom she knew, as that assailant. The incident occurred at plaintiff’s home. Furthermore, the form J88 established that complainant’s private parts were bruised and bleeding and that her injuries were consistent with forced penetration having occurred and were therefore entirely corroborative of complainant’s averment that she was raped.

[17] In this regard the magistrate found as a fact that plaintiff had told Ndambuza that complainant had had sexual intercourse with another man, such sexual intercourse apparently being consensual in nature. The magistrate gave no reasons whatsoever for having preferred plaintiff’s evidence to that of Ndambuza who denied that plaintiff had said any such thing. In accepting plaintiff’s version the magistrate paid no regard whatsoever to the findings recorded on form J88. In the light of those findings the allegation of consensual sexual intercourse, even if it were to be accepted that it was made by plaintiff, is completely improbable.

[18] The magistrate also attached considerable weight to the fact that the complaint was only reported to the police two days after the incident. In this regard he completely ignored the contents of the statement made by complainant’s mother. Complainant’s mother only became aware of the alleged rape on her return from work the following day and she herself was too upset to report the matter to the police without her husband having first been apprised thereof. As also appears from Dr. Moodley’s findings the complainant attends a special school and is mentally challenged. It could hardly have been expected of her in the circumstances to have proceeded alone to lay a complaint at the police station before her mother returned from work.

[19] The magistrate also accorded considerable weight to the fact that the complainant had lied to her mother about her whereabouts on the night in question. In my view, in the circumstances of this case the complainant’s untruthfulness in this regard was utterly irrelevant. In the circumstances disclosed in the two statements her prevarication as to her whereabouts is quite

understandable. That untruthfulness, however, has no bearing whatsoever on the credibility of her allegations in respect of the rape.

[20] The magistrate stated further that:

“The arresting officer did not exercise his discretion objectively. He did not entertain information that could have pointed to a different conclusion. The reasonable suspicion he could have had, was counter balanced by the evidence that he did not entertain.”

[21] Once again, in my view, the magistrate erred in this regard. On the information available to Ndambuza there was no other evidence which might have pointed to a different conclusion. The evidence which he had at his disposal at the time of the arrest was, objectively viewed, sufficient to engender in him a reasonable suspicion that plaintiff had committed the offence of rape. As was stated by Jones J in Mabona and Another vs Minister of Law and Order and Others 1988 (2) SA 654 (SECLD) at 658 G – I:

“This is not to say that the information at his disposal must be of sufficiently high quality and cogency to engender in him a conviction

that the suspect is in fact guilty. The section requires suspicion and not certainty.”

[22] Before turning to deal with the following submission by Mr. Wessels, who appeared for plaintiff at the hearing of the appeal, it is unfortunately necessary to remark on certain aspects of the magistrate’s conduct of the proceedings.

[23] Firstly, he referred on a number of occasions to plaintiff’s and defendant’s respective attorneys merely by their surnames namely “McKenzie” and “Mamase” without affording them the courtesy of the honorific “Mr.” This, with respect to the magistrate, is not in keeping with the dignity of the court, more especially as they scrupously referred to the magistrate as “Your Worship.”

[24] Secondly, after remarking during the course of Ndambuza’s evidence that “I am not trying to cross-examine him McKenzie and Mamase”, he proceeded to do precisely that, and, in so doing, descended into the arena, making it abundantly clear what his views of Ndambuza’s conduct were, even before plaintiff had testified. One example of a “question” posed by him to Ndambuza reads as follows:

“Good let’s go to the issue of the affidavit. Does Exhibit A and B here deposed to at half past five on the day of the arrest, who deposed to those two affidavits? Who signed those two affidavits, that is Exhibit A and Exhibit B half past five on the date of arrest. You remember you are still an arresting officer at that time. It does not matter Mr. Ndambuza. Now it is half past five, your evidence that you arrested that man the same night. Now you’ve got these two as McKenzie was asking you and both affidavits they say at 9 o’clock, that is the complainant, I was drunk, my friends left, I slept over. At 9 o’clock the mother says I sms my child and my child says she is in Uitenhage 9 o’clock the same time. Now you are privy to this information and you go to the man who said I did not rape this lady, you’ve got these two affidavits which it is clear it is lies in the affidavits, the other one is saying 9 o’clock where are you, the other one says no I am in Uitenhage. The same person who says in Uitenhage 9 o’clock says my friends had just left, I decide to sleep over. Then how do you exercise discretion on those facts now, because now you’ve got two conflicting versions. We know now she lied at 9 o’clock, we know for sure, we know now at 9 o’clock from her own version that the friends left, we know that we can’t dispute that. Now you come you say to the man: ‘Sir there is allegations of rape I am going to arrest you’ and the man says to you: ‘I did not rape this woman.’ Now in those facts now are you still sticking to the case that it was not necessary for the warrant of arrest to be applied, because if you applied it on those facts I am telling you now the Prosecutor is not going to give it to you or the Magistrate.” (sic)

[25] This was nothing else but cross-examination and a clear indication that the magistrate had already at that stage lost any semblance of objectivity.

[26] Mr. Wessels submitted with reference to Minister of Safety and Security v Sekhoto 2011 (1) SACR 315 (SCA) at para 28 – 29, that even should it be found that the jurisdictional facts for the arrest were present, Ndambuza nevertheless had a discretion as to whether or not to effect plaintiff’s arrest. He submitted that Ndambuza had failed to exercise any discretion in this regard. This submission was based in part on the following passage in the evidence of Ndambuza:

“A I arrested him and then I took him to Bethelsdorp Police Station.

Q Did you process him at the Bethelsdorp Police Station?

A The investigating officer processed him. I just left him, my duty was just to arrest him. (My emphasis).”

Contrary to what Mr. Wessels submitted, this statement by Ndambuza, read in context, conveyed no more than that once he had effected the arrest he had nothing more to do with the matter. It was not an expression of a belief that he had no discretion but to arrest plaintiff.

[27] In my view Ndambuza clearly exercised his discretion in arresting plaintiff. Rape is an extremely serious offence, even more so when the victim appears on the face of the medical report to be mentally disabled. It is a Schedule 1 offence in respect of which bail cannot be granted by a police officer. In these circumstances I am satisfied that Ndambuza exercised his discretion properly in deciding to arrest the plaintiff.

[28] Mr. Wessels submitted further, however, that even if the arrest was lawful the plaintiff’s subsequent detention from 9am on Wednesday 30 November was unlawful inasmuch as the defendant’s employees had failed to bring plaintiff before a court as soon as was reasonably possible as was specifically pleaded by plaintiff in his particulars of claim.

[29] This submission is premised on the provisions of s 50(1)(c) and (d)(i) which read as follows:

“(c) Subject to paragraph (d), if such an arrested person is not released by reason that-

(i) no charge is to be brought against him or her; or

(ii) bail is not granted to him or her in terms of section 59 or 59A, he or she shall be brought before a lower court as soon as reasonably possible, but not later than 48 hours after the arrest.

(d) If the period of 48 hours expires-

(i) outside ordinary court hours or on a day which is not an ordinary court day, the accused shall be brought before a lower court not later than the end of the first court day;”

[30] As set out above, plaintiff was arrested at 10pm on Tuesday 29 November. He was eventually charged with rape on the afternoon

of Thursday 1 December and taken to court on Friday 2 December 2011. In his evidence plaintiff stressed that from the morning of Wednesday 30 November he queried with certain police officials, including the Station Commander, as to why he was not being taken to court. He was told that his case was being “sorted out”. On Thursday morning he again queried his continued detention but was told that the Rape Victims unit was handling the case and that he had not yet been charged.

[31] In Minister of Police and Another v Du Plessis 2014 (1) SACR 217 (SCA) Navsa ADP stated as follows at p17:

“Justification for detention after an arrest until a first appearance in court continues to rest on the police. Counsel for the appellants rightly accepted this principle. So, for example, if shortly after an arrest it becomes irrefutably clear to the police that the detainee is innocent, there would be no justification for continued detention.”

[32] Mr. Wessels submitted that defendant had failed to discharge the onus upon it inasmuch as it led no evidence as to why plaintiff was only taken to court on Friday 2 December 2011 and why it was not reasonably possible to bring him to court earlier. It would appear that the defendant’s failure to adduce any evidence in this regard arose out of an unfortunate misconception by defendant’s attorney at the trial as to where the onus lay.

[33] Mr. Wessels referred in this regard to Mashilo v Prinsloo 2013 (2) SACR 648 (SCA) at par 16 as follows:

“The outer limit of 48 hours envisaged in the subsection does not, without more, entitle a policeman to detain someone for that entire period without bringing him to court if it could be done earlier. The subsection obliges police authorities to bring someone before court as soon as is reasonably possible. This is so, whether or not the 48 hours expires before or during the weekend. Expedition relative to circumstances is what is dictated by the subsection and the Constitution.”

[34] Mr. Wessels submitted that in the absence of any evidence by, inter alia, the investigating officer, defendant had failed to discharge the onus of proving that it had not been reasonably possible to have brought plaintiff to court before 9 am on Friday 2 December. He submitted therefore that plaintiff’s detention from 9 am on Wednesday 30 November until 9 am on Friday 2 December was unlawful.

[35] In Burford v The Minister of Police, unreported ECD case no CA128/2015 I had occasion to state in a similar matter as follows:

“The respondent tendered no evidence at all in this regard. Where the onus rested on the respondent it is impermissible, in my view, to speculate in favour of the respondent to the effect that it was not reasonably possible to have brought appellant before a court. Having regard to the onus it was incumbent on the respondent to have adduced the evidence of at least the investigating officer in this regard. Depending on the nature of that evidence the respondent may well have been able to discharge the onus. In present circumstances, however, respondent has not discharged the onus of showing that the appellant’s continued detention from Friday morning was justified.

[36] Mr. Sandi, who appeared for the defendant at the hearing of the appeal, submitted that whilst it was impermissible to speculate in favour of the defendant, sight should also not be lost of the practical realities of the situation in the present matter which, he submitted, served to distinguish it to some extent from the Burford case, supra. He submitted that common sense dictated that it would not have been possible for an investigating officer, who in all probability would only have been assigned to the case on the morning of Wednesday 30 November, to have taken control of the docket and to have completed his investigations by 9 am on that morning. It is common cause that plaintiff was eventually formally charged with rape on the late afternoon of Thursday 1 December. Mr. Sandi submitted that it could be inferred therefrom that investigations into the matter were ongoing until that stage and that it had accordingly not been reasonably possible to bring plaintiff to court prior to 9 am on Friday 2 December.

[37] In my view, however, Mr. Wessels is correct that such a finding in the circumstances of this case would amount to no more than speculation. As was stated in S v Essack and Another 1974 (1) SA 1 (AD) at 16D–E inference must be carefully distinguished from conjecture or speculation and there can be no inference unless there are objective facts from which to infer the other facts which it is sought to establish. As stated above, because of the misconception as to where the onus lay, the defendant failed to adduce any evidence at all from which it might be inferred,

for instance, that the investigating officer was still busy with investigations such as to render it not reasonably possible for him to have brought plaintiff before a court by 9 am on Wednesday 30 November, or indeed at any time thereafter on Wednesday or Thursday. This is all the more so in circumstances where the statements of the complainant and her mother had already been taken and the police were also already in possession of the Form J88 medical report by 10 pm on Tuesday. It is unfortunate that defendant’s attorney who appeared at the trial was mistaken as to the incidence of the onus but the defendant must bear the consequences thereof. On the facts before us plaintiff was therefore unlawfully detained from 9 am on Wednesday 30 November until 9 am on Friday 2 December, a period of 2 days and the appeal on the merits must fail.

[38] I turn then to consider the issue of quantum.

[39] In the light of the finding that the arrest was lawful the amount of damages to be awarded to plaintiff must be revisited.

Furthermore, the magistrate misdirected himself in taking into consideration the period of detention from Friday 2 December to 9 December, a period in respect of which plaintiff did not claim. Accordingly we are at large to consider quantum afresh.

[40] In Thandani v Minister of Law and Order 1991 (1) SA 702 (E) van Rensburg J stated at 707B:

“In considering quantum sight must not be lost of the fact that the liberty of the individual is one of the fundamental rights of a man in a free society which should be jealously guarded at all times and there is a duty on our Courts to preserve this right against infringement. Unlawful arrest and detention constitutes a serious inroad into the freedom and the rights of an individual.

In the words of Broome JP in May v Union Government 1954 (3) SA 120 (N) at 130 F:

‘Our law has always regarded the deprivation of personal liberty as a serious injury.’”

[41] In Olgar v Minister of Safety and Security ECD 18 December 2008 (case no. 608/07) unreported, para 16, Jones J, in assessing damages for an unlawful arrest and detention, held:

“In modern South Africa a just award for damages for wrongful arrest and detention should express the importance of the constitutional right to individual freedom, and it should properly take into account the facts of the case, the personal circumstances of the victim, and the nature, extent and degree of the affront to his dignity and his sense of personal worth. These considerations should be tempered with restraint and a proper regard to the value of money, to avoid the notion of an extravagant distribution of wealth from what Holmes J called the ‘horn of plenty”, at the expense of the defendant.”

[42] I have had regard to a number of cases dealing with the quantum of damages in wrongful detention cases, including Hendricks v The Minister of Safety and Security, unreported ECD case No CA&R51/2015 and Sibiya v The Minister of Safety and Security [2008] ZAKZHC 44; [2008] 4 All SA 570 (N), both of which contain a useful summary of awards in similar cases. Whilst a comparison of the awards made in similar cases may serve as a useful guideline, each case must, however, be decided on its own merits. In my view, in the circumstances of this case where the plaintiff was unlawfully detained in a filthy cell for 2 days the award of R80 000,00 made by the magistrate, although made on an incorrect basis, is, fortuitously, appropriate to the proven circumstances of the matter and the appeal against the quantum must also fail.

[43] The following order will issue:

The appeal is dismissed with costs.

_______________

J.D. PICKERING

JUDGE OF THE HIGH COURT

I agree,

_____________________

B. NOMJANA-NDZONDO

ACTING JUDGE OF THE HIGH COURT

Appearing on behalf of Appellant: Adv. Sandi

Instructed by: Yokwana Attorneys, Mr. Yokwana

Appearing on behalf of Respondent: Adv. Wessels

Instructed by: Dold & Stone, Mrs. Wolmarans