Mofokeng v Minister of Police and Another (29678/2014) [2019] ZAGPPHC 566 (21 November 2019)

IN THE HIGH COURT OF SOUTH AFRICA(GAUTENG DIVISION, PRETORIA)

REPUBLIC OF SOUTH AFRICA

(1) REPORTABLE: YES/NO

(2) OF INTEREST TO OTHER JUDGES: YES/NO

(3) REVISED

Case Number: 29678/2014

21/11/2019

In the matter between:

MALEFETSANE MOFOKENG Plaintiff And MINISTER OF POLICE First Defendant NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS Second Defendant

JUDGMENT

JANSE VAN NIEUWENHUIZEN J

INTRODUCTION

[1] This action emanates from the arrest of the plaintiff on 26 June 2013 and his subsequent detention until 15 July 2013. The plaintiff claims compensation for the damages he suffered as a result of his arrest and detention.

[2] I propose first to deal with the merits of the plaintiff’s claim and thereafter with the quantum.

MERITS

PLEADINGS

Plaintiff’s cause of action

[3] The plaintiff alleges that his arrest on 26 June 2013 by servants of the first defendant was:

[3.1] malicious alternatively;

[3.2] without a warrant alternatively;

[3.3] without intending to bring the plaintiff to justice alternatively;

[3.4] as a result of the unlawful exercising of the discretion to arrest.

[4] The plaintiff, further, alleges that his detention until 15 July 2013 was wrongful and unlawful, in that:

“9.1 the policemen involved in the purported investigation of the matter against the plaintiff:

(i) knew, alternatively ought to have known, that no reasonable or objective grounds or justification existed for either the arrest of the plaintiff or his subsequent and continued detention;

(ii) could have easily ascertained by the taking of reasonable investigative steps that no such grounds or justification existed, but failed to take any such steps;

(iii) failed in his/their duty to inform the relevant public prosecutor/s dealing with the matter that there were no such grounds or justification and indeed no objective facts reasonably linking the plaintiff to the alleged crime of robbery;

(iv) failed to take any steps whatsoever to ensure the plaintiff was released from detention as soon as possible.

9.2 The prosecutor or prosecutors, whose identities are unknown to the plaintiff who had control over the relevant police docket and who dealt with the plaintiff from time to time during their (sic) several court appearances until they (sic) were released:

(i) failed in his/their duty of care to acquaint himself/themselves with the contents of the relevant police investigation docket, from which it would have been apparent that there were no reasonable grounds or justification for the continued detention of the plaintiff;

(ii) failed in his/her duty to timeously withdraw the charges against the plaintiff;

(iii) in any event failed in his/their duty to ascertain independently that no reasonable grounds or justification existed for the continued

detention of the plaintiff;

(iv) failed to take any steps to ensure that the plaintiff was released from detention as soon as possible.”

[5] The claim for unlawful arrest is only against the first defendant (“the police”), whereas the claim based on his continued detention is against both the police and the second defendant (“the NDPP”).

Defendant’s plea

[6] In respect of the plaintiff’s arrest, the defendants denied the averments pertaining to the unlawfulness of the arrest and pleaded that the arrest was in terms of a warrant.

[7] The plaintiff was put to the proof of the averments pertaining to the plaintiff’s unlawful detention.

EVIDENCE

[8] At the inception of the trial, the defendants denied the wrongfulness of the plaintiff’s arrest and alleged that reasonable and justifiable grounds existed for the arrest of the plaintiff.

[9] In view of the aforesaid plea, the court ruled that the defendants have the duty to begin and the onus of proof in respect of the arrest. The defendants led the evidence of two witnesses and closed their case. The plaintiff testified, and prior to the plaintiff being cross-examined, Mr Moeti, counsel for the defendants, moved for an amendment of the plea to reflect that the plaintiff was arrested on a warrant.

[10] Notwithstanding the eleventh hour at which the application for an amendment was moved, the court granted the amendment and issued directives for the further conduct of the trial. As a result of the aforementioned, the evidence does not follow in a chronological order and will be dealt with as presented.

[11] The issues that are common cause from the evidence presented at the trial are summarised infra.

[11.1] On 11 March 2010 at approximately 9:15 two employees of the Spar in Delareyville were robbed on their way to the bank to deposit money. One of the employees was sprayed with pepper spray and according to a statement deposed to by the employee, the assailant assaulted him by hitting the employee in the chest with his elbow. As a result of the pepper spray and assault, the assailant managed to rob him of the money.

[11.2] Immediately after the assault, the assailant got into a 1400 white Nissan bakkie. The police were informed and at approximately 13:00 the police found a white Nissan bakkie abandoned at the cemetery in Delareyville. According to an affidavit deposed to by a police officer, one Detective Warrant Officer Viljoen, he endeavoured to trace the registration number from the number plates on the bakkie, but found that the registration number was not on the system.

[11.3] The licence disc reflected a different registration number and the system reflected that a vehicle with such registration number was reported stolen on 7 March 2010 via Jeppe Mas 240/02/2010. Viljoen found a can of pepper spray in the back of the bakkie and contacted the Fingerprint experts to lift finger prints from the bakkie.

[11.4] A fingerprint that was lifted from the rear view mirror inside the bakkie was identified to be that of the plaintiff.

[11.5] On 16 April 2016 Ms Lotriet, a prosecutor at Delareyville Magistrate’s Court applied for a warrant for the plaintiff’s arrest in terms of a section 43 of the Criminal Procedure Act, 51 of 1977 (“the Act”) form, also known as a J50. A magistrate at Delareyville Magistrate’s Court issued the warrant.

[11.6] The warrant was forwarded to the Northwest Provincial Tracking Team and the plaintiff was arrested in Johannesburg by Sergeant Motlogi on 26 June 2013 on the warrant.

[11.7] The plaintiff was taken to Delareyville police station and thereafter to court. The court was not sitting and the plaintiff’s first appearance in court was on 28 June 2013.

[11.8] The matter was postponed and the plaintiff remained in custody. The plaintiff appeared two more times in court until he was granted bail on the 15th of July 2013.

[12] The first witness that testified on behalf of the defendants was Sergeant Motlogi (“Motlogi”). Motlogi confirmed that he and two of his colleagues, Sergeant Gonzani and Sergeant Ntsimane proceeded to the plaintiff’s

residence on 26 June 2013. The file in his possession contained a warrant of arrest for the plaintiff. Motlogi first attended at the plaintiff’s previous place of employment, to wit CBR Security. I pause to mention that the 1400 Nissan bakkie from which the plaintiff’s fingerprints were lifted was a CBR Security vehicle that was stolen as per the Jeppe Mas 240/02/2010 referred to supra.

[13] The plaintiff was no longer employed at CBR Security and Motlogi proceeded to the plaintiff’s residential address. Upon arrival,

Motlogi introduced himself to the plaintiff, showed his appointment card and requested to see the plaintiff’s Identity document.

The plaintiff was not in possession of his Identity document and was requested to state his identity number. Upon being satisfied that the plaintiff was the person the warrant pertained to, Motlogi informed the plaintiff of his constitutional rights.

[14] Motlogi explained to the plaintiff that he is placing him under arrest for a robbery and handed a copy of the warrant to the plaintiff. After the plaintiff was handcuffed he requested to see his wife, who was at work. The plaintiff’s request was complied with and he said his goodbyes to his wife where after they proceeded to Delareyville. Upon arrival at Delareyville police station, Motlogi once again explained the plaintiff’s constitutional rights to him and handed a SAP14A form containing the plaintiff’s rights to him.

[15] The plaintiff was taken to court, but as alluded to supra the court was no longer sitting and Motlogi took the plaintiff back to Delareyville police station and informed the investigation officer of the arrest. If one has regard to the docket it appears that either Detective Warrant Officer Herbst (“Herbst”) or Detective Warrant Officer Viljoen (“Viljoen”) was the investigating officer at the time. Motlogi stated that it took approximately four and half hours from the moment of plaintiff’s

arrest until they arrived in Delareyville.

[16] Motlogi testified that the plaintiff, save for asking to see his wife, did not say anything else.

[17] During cross-examination Motlogi admitted that upon the arrest of a suspect everything that transpires during the arrest should be noted in a police officer’s pocketbook. He, however, indicated that he did not have his pocketbook pertaining to the arrest of the plaintiff with him at court. Motlogi testified that he only had the warrant of arrest and the plaintiff’s criminal record, colloquially known as a SAP 69, in his possession on the day of the plaintiff’s arrest.

[18] As a result, Motlogi was not au fait with the contents of the docket and could not form an independent opinion whether the arrest was justified or legal. Motlogi explained

that the docket remains with the investigation officer and his task is to track down a suspect and arrest the suspect on the strength of the warrant of arrest.

[19] The following version (“first version”) of what transpired in the car on their way to Delareyville was put to Motlogi:

“If my client said that he, on the date that you informed him the robbery took place, said in the car to Delareyville that he was on duty at his work, could you confirm or deny what he said?

[20] Motlogi denied that the plaintiff informed him of this.

[21] Motlogi was referred to the affidavit deposed to by Viljoen in support of the application for a warrant of arrest. According to the affidavit, the plaintiff was not at court and a warrant of arrest J165 was authorised against him. According to the affidavit the plaintiff could not be traced on the J165 and as a result the warrant could not be executed. Due to the aforesaid, Viljoen requested a J50 warrant of arrest.

[22] Motlogi indicated that the affidavit in support of the warrant of arrest was not with the documents he received prior to the plaintiff’s

arrest.

[23] Motlogi was asked in which language he explained the plaintiff’s constitutional rights contained in the SAPS14(A) to him, to which Motlogi answered, Setswana. It was put to Motlogi that the plaintiff is not conversant in Setswana. Motlogi answered that he finds it surprising because he conversed with the plaintiff in Setswana at all relevant times. The plaintiff apparently speaks Southern Sotho.

[24] Ex facie the SAPS14(A) form, the language choice of the plaintiff was indicated as Setswana. Contrary to the first version put to Motlogi, it was put to him (“second version”) that he did not inform the plaintiff when completing the SAPS14(A) document that he was charged with robbery and as a result the

plaintiff could not tell him that he was at work when the robbery was committed. Motlogi denied this and pointed out that the word

“robbery” was filled in on the SAPS14(A) document.

[25] Ms Lotriet (“Lotriet”) was the next witness to testify on behalf of the defendants. Lotriet testified that she was the control prosecutor at Delareyville

Magistrate’s Court at the time of the plaintiff’s arrest. Lotriet was referred to the charge sheet in the robbery matter and confirmed that the plaintiff’s first appearance was on 28 June 2013. The plaintiff was arrested on a J50 warrant of arrest in respect of Delareyville case number CAS50/2010. Lotriet testified that she received the case docket some time before the plaintiff’s

arrest as a decision docket, which entails that she must, in view of the fact that no suspects had been arrested, decide to nolle prosequi the matter or whether she should issue written instructions for further investigation.

[26] She confirmed that she applied for a J50 warrant of arrest for the plaintiff because his fingerprints were found on the Nissan bakkie’s

rear view mirror. The affidavit supporting the request for a J50 warrant deposed to by Viljoen was shown to her and she said that it was not the correct affidavit. The affidavit incorrectly states that a warrant is requested because the plaintiff was not at court which is not factually true.

[27] Lotriet insisted that she would not have applied, and the magistrate would not have granted a J50 warrant, without an affidavit setting out the correct facts. She could, however, not find the correct affidavit in the docket. Lotriet testified that the plaintiff applied for legal aid at his first appearance in court and that the matter was remanded until 1 July 2013 for legal aid. The plaintiff remained in custody, because it was a Schedule 5 offence as a result of the plaintiff’s previous conviction and a formal bail application was necessary.

[28] Lotriet referred to the Investigation diary in the docket and indicated that she requested the Investigation officer in writing to find out what had happened to the pepper spray can that was found in the back of the bakkie. On 1 July 2013, Lotriet requested a further seven-day remand because the requested bail information was not yet available. The matter was remanded until 8 July 2013.

[29] On 8 July 2013 Lotriet became aware of the plaintiff’s alibi and the explanation for his fingerprints being found in the Nissan

bakkie. Lotriet testified that it was the first time that she became aware that the plaintiff had an alibi. The matter was remanded to 15 July 2013 for a formal bail application and Lotriet gave a written instruction in the investigation diary to the investigation officer to follow up on the plaintiff’s alibi.

[30] Lotriet, furthermore, instructed the investigation officer to arrange for an Identification parade prior to 15 July 2013 and to be ready to testify at the bail application. On 13 July 2013 the investigation officer indicated in the investigation diary that the complainant cannot point out his assailant as he was sprayed with pepper spray. The investigation officer, however, failed to follow up on the plaintiff’s alibi.

[31] On 15 July 2013 Lotriet’s instruction in respect of the plaintiff’s alibi was still not complied with and the plaintiff

was granted R 500, 00 bail. The matter was remanded to 5 August 2013.

[32] On a question of whether she was aware that the plaintiff informed the police that he had an alibi, Lotriet referred to the warning

statement taken down by Herbst on 27 June 2013, which indicated that the plaintiff allegedly merely denied the allegations against him.

[33] On 5 August 2013 the plaintiff provided Lotriet with proof that he was working in Johannesburg on the day of the robbery. Lotriet

provisionally withdrew the matter against the plaintiff. Lotriet instructed the investigating officer to confirm the plaintiff’s

alibi and upon receipt of the information she decided to nolle prosequi the matter against the plaintiff. Lotriet testified that had she been aware of the alibi defence she most probably would not have enrolled the matter on 28 June 2013, because it is a good defence.

[34] During cross-examination Lotriet confirmed that a police officer, when told upon the arrest of a suspect that the suspect has an alibi, should make a note in the docket. Lotriet was confronted with the incorrect affidavit and could not explain why the “correct” affidavit was not in the docket.

[35] Lotriet admitted that the affidavit in support of the J50 warrant of arrest should be served with the warrant on a suspect upon his/her arrest. She, furthermore, conceded that the reason for the aforesaid was to give the arrested person an opportunity to decide what to do next.

[36] It was put to Lotriet that the investigating officer, once he noted the alibi defence in the investigation diary, could easily have

ascertained the alibi by merely phoning the security company the plaintiff alleged he worked for at the time. Lotriet readily conceded

this.

[37] It was put to Lotriet that an identification parade should have been held as soon as possible after the plaintiff’s arrest and at least in the first 48 hours of his arrest. Lotriet agreed that the identification parade should have been held as soon as possible, but pointed to the logistical difficulties in arranging an identification parade in Delareyville. Apparently police officers from Potchefstroom or Klerksdorp are called to attend to the parade. Lotriet explained that the outcome of the identification parade would, in any event, not have been the end of the matter because the plaintiff still had to explain why his fingerprints were in the Nissan bakkie.

[38] The remainder of Lotriet’s cross-examination centred around the question whether she had enough evidence to enrol the matter and why bail was not granted earlier. Lotriet dealt with these issues in her evidence-in-chief and her version did not change during

cross-examination. That concluded the evidence on behalf of the defendants.

[39] The plaintiff confirmed that he was employed during 2010 at CRD Security as a security guard. The plaintiff, furthermore, confirmed that a white Nissan bakkie belonging to CRD Security was stolen during 2010. The bakkie had a light signal on top and insignia of the company on the doors. He saw the bakkie when it was returned to the company. The bakkie was found in North West and had black marks (fingerprint powder) all over the body of the bakkie. The bakkie was used for four to five years prior to the incident by a number of the security officers employed by the company including himself. The aforesaid explains why his fingerprints were found on the rear view mirror of the bakkie. The plaintiff left the employ of CRD Security prior to his arrest.

[40] The plaintiff testified that, on the day of his arrest, he was contacted by a lady from the control room at CRD Security who told him to run away because the police are looking for him. The plaintiff indicated to the lady that he will not run away because he had done nothing wrong.

[41] The police arrived at his place of residence and showed him a photo of himself bearing his identity number. The plaintiff confirmed his identity number and the police officer informed him that he had a right to handcuff him. He requested the police officer to afford him an opportunity to take his child to his wife.

[42] The plaintiff’s evidence in respect of the conversation (“third version”) in the vehicle whilst travelling to Delareyville is as follows:

“Yes, when we were on the way my heart was sore. The lady who was with the police asked me whether I had been a mechanic and she further told me that they discovered some fingerprints on a vehicle in North West. At that time, they had not told me about any robbery or any offence. After telling me of the fingerprints she told me that on the vehicle the fingerprints were found it was a vehicle that was involved in a robbery and I further requested that if possible why do we not go to the office so that I can establish as to where I was when that alleged robbery took place.

Before you go any further was the date of the robbery discussed with you? – She had not told me about that.”

[43] The plaintiff testified that he was not informed of his right to legal representation or his right to apply for bail when he was arrested. The plaintiff stated that no warrant of arrest with an accompanying affidavit was shown to him during his arrest. According to the plaintiff, when he requested to be taken to his previous place of employment, the police officer driving the motor vehicle said “this one is mad”.

[44] The plaintiff confirmed that he received the notice of his rights at Delareyville police station. The plaintiff testified that when he received the notice he was informed that he has the right to remain silent and the right to an attorney. His right to apply for bail was once again not explained to him. The plaintiff testified that whilst his fingerprints were taken at Ottosdal police station on 27 June 2013, there were two police officers present. One took his fingerprints and the other was filling in a form. I pause to mention, that the police officers in question, are according to the evidence Herbst and Viljoen.

[45] The plaintiff asked the police officers why he was arrested. The police officer asked him whether he knows anything about a 1400 bakkie and he said no. The police officer told him that it was a CRD Nissan bakkie. The plaintiff responded that he was previously employed at CRD and that he was the driver of the CRD Nissan bakkie. The police officer told him that he can sue the state if he did not commit the crime.

[46] The plaintiff was told to sign the form that was completed by one of the police officers. The plaintiff testified that he did not know what was written on the form, but signed it because he was instructed to do so.

[47] The plaintiff testified that at his first appearance in court he was told by the magistrate that he is being charged for the theft of R 80 000, 00. That was the first time the plaintiff was made aware of this.

[48] The plaintiff stated that he had legal representation when he appeared in court on 8 July 2013. On 15 July 2013 the plaintiff was granted bail after a discussion between his attorney and the prosecutor. Upon being granted bail, the plaintiff obtained proof from CRD Security that he was on duty on the day of the robbery. The plaintiff testified that he handed the copies to the prosecutor at his next appearance and that she said “this is terrible, were you also driving this vehicle?”. The plaintiff stated that he did not have to appear as the prosecutor dismissed the case against him.

[49] During cross-examination the plaintiff indicated that two male police officers entered his house on the day of his arrest and that a lady police officer remained in the police vehicle. The plaintiff testified that the following occurred after his identity number was confirmed:

“Then they said there is a case against you in North West –we are here to arrest you.”

[50] Mr Moeti pointed out to the plaintiff that he was, in view of the aforesaid answer, indeed informed of the reason for his arrest. The plaintiff agreed. When asked what transpired during his transit to Delareyville, the plaintiff answered that he requested the police to take him to CBR’s offices so that he can find out where he was on the day of the robbery. I pause to mention that this answer was provided notwithstanding the fact that the plaintiff testified that he was not aware of the date on which the robbery occurred.

[51] Shortly thereafter, the plaintiff testified that he was initially not informed for the reason of his arrest (“fourth version”) and that is why he asked the police the reason for his arrest.

[52] The plaintiff struggled to explain how it was possible to communicate with the police officers if he claims he that he did not understand

them. On further cross-examination and in direct conflict with the evidence on record, the plaintiff suddenly alleged that the police officer that arrested him did not explain his constitutional rights to him.

[53] The plaintiff was questioned on why he did not tell the court of his alibi at his first appearance in court, upon which the plaintiff

stated that he did not know he may speak in court.

[54] Although a broad statement was made that the police were never aware of the plaintiff’s alibi, the plaintiff’s evidence in respect of his conversation with the police officers when his finger prints were taken was not specifically denied. Neither Herbst nor Viljoen testified to dispute this aspect of the plaintiff’s evidence.

[55] Nothing much turned on the remainder of the plaintiff’s cross-examination.

LEGAL PRINCIPLES AND DISCUSSION

Arrest

[56] In respect of the arrest, it is trite that an arrest is prima facie wrongful. The defendant bears the onus to prove the lawfulness of the arrest. [See: Brand v Minister of Justice 1959 (4) SA 712 A at 714G-H]. Mr Moeti submitted that Motlogi effected the arrest in terms of a warrant of arrest that was in the proper form and duly issued by an authorised official, namely the magistrate in Delareyville. In the premises, the police have proved that the arrest

was not wrongful.

[57] Mr Kerr-Philips, counsel for the plaintiff, did not agree. Mr Kerr-Philips first of all submitted that the warrant was, in view of the incorrect affidavit requesting the warrant, not validly obtained.

[58] In evaluating this submission, it is clear that the affidavit accompanying the warrant of arrest is on a mere reading in conflict

with the information contained in the warrant. Whereas the affidavit refers to the plaintiff’s failure to attend court, the warrant itself clearly indicates that it relates to a robbery that was committed on 11 March 2010 in the district of Delareyville.

[59] The contents of the warrant support the evidence of Lotriet that the wrong affidavit is contained in the docket and that an affidavit

referring to the robbery on 11 March 2010 was used in support of the application for the warrant.

[60] Had the affidavit referring to the plaintiff’s failure to appear in court been used to apply for the warrant, the warrant would have reflected this fact. Insofar as the warrant is concerned, I am satisfied that the warrant was in the proper form and issued by a duly authorised official.

[61] This is, however, not the end of the matter. Mr Kerr-Philips submitted that even if a warrant is valid, the arresting officer must, prior to the arrest, still exercise a discretion to arrest.

[62] The submission bears scrutiny. As a starting point, our courts place a high value on the right of security and freedom of a person. The constitutional protection of this basic human right is to be found in section 12(1)(a) of the Constitution of the Republic of South Africa, 1996.

[63] In the context of the criminal justice system, section 35(1) of the Constitution provides that “Everyone has the right to liberty and security of the person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law ....” (own emphasis)

[64] In casu section 44 of the Criminal Procedure Act, 51 of 1977 prescribes the procedure applicable to an arrest on a warrant of arrest. The section reads as follows:

“A warrant of arrest issued under any provision of this Act may be executed by a peace officer, and the peace officer executing such warrant shall do so in accordance with the terms thereof.” (own emphasis)

[65] The section clearly confers a discretion on an arresting officer in possession of a warrant of arrest to arrest. [See: Brown & Another v Director of Public Prosecutions & Others 2009 (1) SACR 218 C and Theobald v Minister of Safety and Security 2011 (1) SACR 379 GSJ.]

[66] In order to exercise this discretion, the arresting officer must have sufficient knowledge of the evidence against the accused. In casu Motlogi confirmed during cross-examination that he had no knowledge of the contents of the docket and could not form an independent opinion to arrest or not. He merely executed the J50 warrant of arrest and in so doing acted in contravention of the provisions of section 44 of the Act.

[67] It furthermore appeared during cross-examination that Motlogi was not even aware that he had a discretion to arrest. In this regard, Mr Kerr-Philips referred to the matter of Domingo v Minister of Safety and Security (CA 429/202) [2013] ZAECGHC 54 (5 June 2013), in which it was held that an arrest by a police officer who is not aware that he/she has a discretion to arrest, renders the arrest automatically unlawful.

[68] In these circumstances, I find that the arrest of the plaintiff was unlawful and that the police is liable for the damages suffered by the plaintiff due to his unlawful arrest.

[69] Where an arrest is unlawful an accused’s detention until his/her first appearance in court is also unlawful. This would entail that the police are liable for the plaintiff’s unlawful detention from 26 to 28 June 2013.

Continued detention

[70] The position is somewhat different in respect of the detention of an accused after his/her first appearance in court. [See: Isaacs v Minister van Wet en Orde 1996 (1) SACR 214 SCA.]

[71] In respect of the continued detention of the plaintiff, subsequent to his first appearance in court, the issue of causation arises. In the Isaacs matter supra the court held that upon an accused’s first appearance in court, the accused’s further detention is by order of a magistrate and the detention cannot be attributed to the conduct of the police. The finding was, however, on the facts of the matter and will not always find application. There may be instances that the police are still liable for the continued detention of an accused.

[72] The Constitutional Court in the recent judgment of De Klerk v Minster of Police (CC95/18) [2019] ZACC 32 (22 August 2019) revisited the test applicable to the continued detention of an accused. In respect of the general principles pertaining to causation the court stated the following at paragraphs [24] and [25], to wit:

“[24] Causation comprises a factual and legal component.[1] Factual causation related to the question whether the act or omission caused or materially contributed to the harm.[2] The “but-for” test (condictio sine qua non) is ordinarily applied to determine factual causation.[3] If, but for a wrongdoer’s conduct, the harm would probably not have been suffered by a claimant, then the conduct factually caused the harm.[4] …

[25] Legal causation is concerned with the remoteness of damage. This entails an enquiry into whether the wrongful act is sufficiently closely linked to the harm for legal liability to ensue.[5] Generally, a wrongdoer is not liable for harm that is too remote from the conduct concerned[6] or harm that was not foreseeable.[7]”

[73] The judgment dealt with the Isaacs matter and with various other judgments on the issue. In summary, the court held as follows at paragraph [62]:

“[65] The principles emerging from our jurisprudence can then be summarised as follows. The deprivation of liberty, through arrest and detention, is per se prima facie unlawful. Every deprivation of liberty must not only be effected in a procedurally fair manner but must also be substantively justified by acceptable reasons.[8] Since Zeeland, a remand order by a Magistrate does not necessary render subsequent detention lawful. What matter is whether, substantively, there was just cause for the later deprivation of liberty. In determining whether the deprivation of liberty pursuant to a remand order is lawful, regard can be had to the manner in which the remand order was made.”

[74] Having regard to the factual enquiry in casu, the plaintiff’s evidence that he requested the police on their way to Delareyville to take him to CBR’s offices in order to determine whether he was at work on the day of the alleged incident, is important. Had he made the request, it was the first opportunity the police had to verify the plaintiff’s alibi.

[75] The evidence is, however, problematic. As alluded to supra two conflicting versions was put to Motlogi during cross-examination. Firstly, it was put to Motlogi that the plaintiff informed him on the way to Delareyville that he was at work on the day of the incident. Later during cross-examination, it was put to Motlogi that he never informed the plaintiff of the reason for his arrest and that is why the plaintiff could not tell Motlogi that he was at work.

[76] During his evidence-in-chief, the plaintiff gave a totally different version. According to his evidence the lady police officer informed him on their way to Delareyville about the 1400 Nissan bakkie and that his fingerprints were found in the bakkie. Although she did not inform him of the date of the incident he requested to be taken to his place of employment in order to establish where he was when the robbery occurred.

[77] During cross-examination, the plaintiff firstly testified that he was informed during his arrest of the reason for his arrest. The

plaintiff then changed his version and testified that he was not told and therefore had to ask the police why he was arrested. This version in turn contradicts his version that he was actually informed by the lady police officer of the reason for his arrest.

[78] One thing that is certain, is that Motlogi did not have the docket in his possession and did not have any details pertaining to the crime or the plaintiff’s involvement in the crime. Consequently, the lady police officer that accompanied Motlogi would also not have known the details pertaining to the crime and it could not have been possible for her to relate the details to the plaintiff as per his evidence.

[79] Although the plaintiff’s memory could have faded over time, which could explain the different versions proffered by the plaintiff, the objective fact that Motlogi and conversely the police officers that accompanied him did not, save for the date of the commissioning of the offence, have any knowledge of the details surrounding the crime, renders the plaintiff’s evidence unreliable and his evidence on this aspect cannot be accepted.

[80] The next step is to examine the plaintiff’s evidence in respect of his conversation with Herbst and Viljoen at Ottosdal police station on 27 June 2013. The plaintiff testified that he informed Herbst and Viljoen that he was previously employed at CBR and that he had driven the Nissan bakkie. The warning statement taken down by Herbst and commissioned by Viljoen is in Afrikaans. Although the plaintiff speaks Southern Sotho the services of an interpreter was not utilised. This is most unsatisfactory and little, if any, evidentiary value can be attached to the statement.

[81] The warning statement indicates that the plaintiff denied his involvement in the crime, but chose to remain silent. As alluded to supra the conversation the plaintiff had with Herbst and Viljoen was not specifically denied, neither did Herbst or Viljoen testify to dispute the plaintiff’s evidence in this regard.

[82] Two aspects arise:

[82.1] what the impact on the finding that the plaintiff’s evidence in respect of his version of what transpired upon his arrest and on his way to Delareyville was unreliable, has on the reliability of the remainder of his evidence; and

[82.2] the inference to be drawn from the fact that Herbst and Viljoen were not called to dispute the plaintiff’s version in this regard.

[83] In Santam Bpk v Biddulph [2004] 2 All SA 23 SCA, Zulman JA held as follows at paragraph [10]:

“[10] Sigasa may not have been a satisfactory witness in all respects. However, the proper test is not whether a witness is truthful or indeed reliable in all he says, but whether on a balance of probabilities the essential features of the story he tells are true (cf R v Kristusamy 1945 AS 546 at 556 and HC Nicholas 'Credibility of Witnesses” (1985) 102 SALJ 32 especially at 32-35). This is particularly so in this case where the trial court rejected Sigasa’s evidence on the basis of his veracity as opposed to the reliability of his evidence of his evidence.”

[84] Both Herbst and Viljoen had knowledge of the contents of the docket and it is probable that they would have discussed the details pertaining to the commissioning of the crime with the plaintiff. It is furthermore probable that the plaintiff, being made aware of the details of the crime for the first time, would have spontaneously told the police that he was employed at CBR and that he had driven the Nissan bakkie.

[85] As indicated the only two people who could dispute the plaintiff’s version were not called. In Sampson v Pim 1918 AD 657 at 662 the court held that the failure to call a witness who was available at court and who could have supported the plaintiff’s

version leads to the irresistible inference that the witness would not have supported the plaintiff’s version.

[86] In Kock v S.K.F. Laboratories (Pty) Ltd 1962 (3) SA 764 ECD the court held with reference to the Sampson matter supra the following at 766A-B:

“None of these cases seem to me to support the propositions that for the Court to be able to draw an adverse inference from the failure by a party to call a witness such witness must actually have been subpoenaed by the other party and be present at Court. The prerequisite for the drawing of an inference adverse to a party is that the witness must be available. By that I do not understand the authorities to mean available in a narrowly circumscribed and defined notion such as that he must have been present in the precincts of the

Court at the time of the trial. It seems to me a witness is available if his testimony in the case could be procured by the party against whom it is sought to draw an adverse inference.”

[87] The defendants did not state that it is not possible to procure the evidence of Herbst and Viljoen. In the premises, the irresistible

inference to be drawn is that their evidence would not have contradicted that of the plaintiff. The fact that the plaintiff’s

evidence in respect of Herbst and Viljoen was not denied, strengthens the drawing of an adverse inference from their failure to testify.

[88] In the premises, I am satisfied that, on a balance of the probabilities, the plaintiff’s version in respect of what he told Herbst and Viljoen is true.

[89] Herbst and Viljoen’s failure to act on this information resulted in the continued detention of the plaintiff. Had they immediately

investigated the plaintiff’s version, his alibi would have been confirmed and his detention subsequent to his first appearance in court could have been avoided.

[90] The investigation diary in the case docket reveals the further conduct of the police in the matter. The docket was taken to court and on 28 June 2013 after the plaintiff’s first appearance in court, Lotriet directed a query to the investigating officer in respect of the pepper spray that was found in the back of the bakkie. It appears that Herbst and Viljoen simply disappeared from the scene between 27 June 2013 and 16 July 2013.

[91] The new investigating officer, one Galet Lhobogwe (“Lhobogwe”) (rank not indicated in the investigation diary) did not respond and no further entry was made until the 8th of July 2013 when the plaintiff appeared for the third time in court. On 8 July 2013 Lotriet directed several queries to Lhobogwe, of which the following is significant:

“8/7/13 I/O

1) Alibi – follow up please;”

[92] On 9 July 2013 a certain police officer, Dahala (rank not stated), made the following entry:

“From court

1. See entry dated 8/7 and comply.”

[93] On 13 July 2103, Lhobogwe, noted the following:

“Docket received and all instructions noted and shall be adhered to.”

[94] On the same day, Lhobogwe dealt with all the queries, save for the alibi query, and returned the docket to court. On 15 July 2013, the plaintiff was granted R 500, 00 bail and Lotriet made the following entry:

“I/O

Branch commander pls.”

[95] During her evidence Lotriet testified that she made the entry because she became frustrated with the lack of co-operation from the

investigating officer. On 16 July 2013 Herbst noted that the docket had been received from court and made a note that the branch

commander must be seen.

[96] On 17 July 2013, Balelo (rank not stated) instructed Lhobogwe to come and see him with the docket to answer the queries.

[97] On 1 August 2013 Lhobogwe indicated that he had received the docket, noted all instructions and that he shall comply therewith. Nothing further transpired and the docket was returned to court. At the plaintiff’s court appearance on 5 August 2013 Lotriet made an entry indicating that the plaintiff has provided her with copies of the logbook of his employer indicating that he was on duty at the time of the incident. She noted that she had provisionally withdrawn the matter. Lotriet, once again, requested the investigating officer to confirm the plaintiff’s alibi.

[98] On 12 August 2013 Lhobogwe finally took the necessary steps to verify the plaintiff’s alibi. It took Lhobogwe one phone call to verify the alibi.

[99] It is a fact that the plaintiff’s alibi proved to be correct and that Lotriet provisionally withdrew the case against the plaintiff when he produced proof of his alibi. In the premises, the omission by the police as set out supra establishes factual causation. Had the police acted prudently, the plaintiff would probably not have been detained subsequent to his first appearance in court.

[100] I deem Lotriet’s conduct in prosecuting the case to be satisfactorily. It is the police who have the authority and the obligation to investigate matters in order to make an informed decision in respect of the continued detention of an accused person. All information obtained during the investigation should be supplied to the prosecutor to enable the prosecutor to form an independent opinion on the necessity of the continued detention of an accused. A failure to do so, has one consequence and one consequence only, the

continued detention of the accused.

[101] In respect of legal causation, the question arises whether the various police officers foresaw that their omissions could result in the plaintiff’s continued detention?

[102] To my mind the answer is yes. Being made aware of the plaintiff’s possible alibi, Herbst and Viljoen knew full well that the veracity of the alibi will have a direct impact on the plaintiff’s continued detention.

[103] The following remark in S v Steward 2017 (1) SACR 159 NCK at paragraph [42] in respect of the importance to verify an alibi is apposite.

“[42] The problem in this case is that the state was derelict in its duty. It appears that the police neglected to obtain the statements of Ntsie and Sereo as witnesses who could either vouch for the appellant or disavow such extended time in his company. The police have an obligation to investigate an alibi raised by a suspect. The earlier that is done, the better, for reasons that suggests themselves. See S v Mlati [1984] ZASCA 88; 1984 (4) SA 629 (A) at 632A-D and 640E-I.”

[104] In this instance the new investigating officer was, until 13 July 2015, oblivious of the fact that the plaintiff had been arrested. Lhobogwe was not informed by Herbst of the plaintiff’s arrest. Had he been so informed he could have conducted a proper interview with the plaintiff which no doubt would have alerted him to the plaintiff’s alibi defence.

[105] The police’s failure to act is exacerbated by their conduct subsequent to the plaintiff’s first appearance in court.

Lotriet’s various requests for further information simply fell on deaf ears. Lotriet requested the police to follow up on the plaintiff’s alibi as early as 8 July 2013. This was eventually done, by making a simple phone call on 12 August 2013.

[106] It appears that the police simply had no regard for the plaintiff’s right to liberty. Their collective omissions prior to the plaintiff’s first appearance in court until his release on bail on 15 July 2013 is the sole reason for the plaintiff’s continued detention which was for the reasons stated supra foreseeable.

[107] In the premises, I find the police are also liable for any harm the plaintiff suffered as a result of his continued detention until 15 July 2013.

DAMAGES

[108] The plaintiff was unlawfully detained for 20 days. The plaintiff testified that the conditions in the police cells at Ottosdal were

horrific. There was only one cell and it was over populated. There was no water and the plaintiff could not bath. He received five

slices of bread a day which he described as being “fakumoya” meaning non-nutritious bread. The toilet in the cell was not in working order. The conditions at Ottosdal prison were similarly dismal. Although there was a shower, the shower was leaking. The cell he was kept in had one functioning toilet. There were 20 to 30 people kept in one cell and the plaintiff testified that there was not enough room for everyone.

[109] At Ottosdal prison there were no beds but only a built structure on which the chief of the cell slept. He received five slices of bread in the morning at 10:00 and “pap” and a small piece of meat at 16:00. Although the food was served on a plastic plate, the plaintiff had to eat with his hands while seated on the floor.

[110] Being arrested for a crime one has not committed must be traumatic. The plaintiff had to inform his wife whilst in the company of the police officers of his arrest. He had to appear in court and was kept in appalling conditions. The plaintiff testified that his spirit was hurt by the whole ordeal. The plaintiff testified that he lost his employment due to his arrest and was devastated. His wife was seven months pregnant at the time of his arrest and his arrest caused her unnecessary stress.

[111] I deem the absolute impairment of the plaintiff’s dignity during his whole ordeal as paramount. The shame and humiliation in being arrested, handcuffed, locked up in police cells, locked up in jail and appearing at various times in a criminal court is unimaginable. The plaintiff should be duly compensated for the infringement of his constitutional rights to liberty and dignity.

[112] Mr Kerr-Philips suggested an amount of R 500 000, 00. Mr Moeti did not seriously oppose the suggested amount. Having had regard to various awards in similar matters and more particularly the award in Rudolph v Minister of Safety and Security [2009] 3 All SA 323 SCA, in which an amount of R 100 000, 00 was awarded in respect of the unlawful arrest and detention of the plaintiffs for a period of five days, I agree that the amount of R 500 000, 00 would adequately compensate the plaintiff for the damages he suffered as a result of his unlawful arrest and detention.

Costs

[113] Costs should follow suit.

ORDER

[114] In the premises, the following order is made:

1. The first defendant is ordered to pay the plaintiff:

1.1 The amount of R 500 000, 00.

1.2 Interest on the aforesaid amount at 10% per annum from 29 April 2014 until date of payment.

1.3 Costs of suit.

N. JANSE VAN NIEUWENHUIZEN

JUDGE OF THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

DATES HEARD

6th to 10th of May 2019

DATES FINALISED

16th to 18th of September 2019

JUDGMENT DELIVERED 21 November 2019

APPEARANCES

Counsel for the Plaintiff:

Advocate G.E. Kerr-Phillips

and Advocate A. Naidoo

Instructed by:

Wits Law Clinic

(011 435 9444)

Ref: LAB/112/MOFOENG/PJ/OM

Counsel for the Defendants:

Advocate O.M. Moeti

Instructed by:

State Attorney Pretoria

(012 309 1580)

Ref: 2578/14/z24

[1] Lee v Minister for Correctional Services [2012] ZACC 30; 2013 (2) SA 144 (CC); 2013 (2) BCLR 129 (CC) at para 38; Premier of the Western Cape Province v Loots [2011] ZASCA 32; 2011 JDR 0250 (SCA) (Loots) at paras 16-7; and International Shipping Co (Pty) Ltd v Bentley [1989] ZASCA 138; 1990 (1) SA 680 (A) (Bentley) at 700E-I.

[2] Minister of Police v Skosana 1977 (1) SA 31 (A); [1977] 1 All SA 219 (A) at 34F-G: “Causation in the law of delict gives rise to two rather distinct problems. The first is a factual one and relates to the question as to whether the negligent act or omission in question caused or materially contributed to the harm giving rise to the claim. If it did not, then no legal liability can arise and cadit quaestio (the question falls). If it did, then the second problem becomes relevant, viz. whether the negligent act or omission is linked to the harm sufficiently closely or directly for legal liability to ensue or whether, as it is said, the harm is too remote. This is basically a juridical problem in which considerations of legal policy may play a part.” (Footnotes omitted.)

[2] Minister of Police v Skosana 1977 (1) SA 31 (A); [1977] 1 All SA 219 (A) at 34F-G:

“Causation in the law of delict gives rise to two rather distinct problems. The first is a factual one and relates to the question as to whether the negligent act or omission in question caused or materially contributed to the harm giving rise to the claim. If it did not, then no legal liability can arise and cadit quaestio (the question falls). If it did, then the second problem becomes relevant, viz. whether the negligent act or omission is linked to the harm sufficiently closely or directly for legal liability to ensue or whether, as it is said, the harm is too remote. This is basically a juridical problem in which considerations of legal policy may play a part.” (Footnotes omitted.)

[3] In Lee above n 1 at paras 41 and 74, the majority of this Court held that in appropriate cases, the “but-for” test should be relaxed.

[4] Minister of Safety and Security v Van Duivenboden [2002] ZASCA 79; 2002 (6) SA 431 (SCA) at para 25.

[5] mCubed International (Pty) Ltd v Singer N.O. [2009] ZASCA 6; 2009 (4) SA 471 (SCA) (mCubed) at para 22; Lee above n 1 at para 38; and Bentley above n 1 at 700H.

[6] Fourway Haulage SA (Pty) Ltd v SA National Roads Agency Ltd [2008] ZASCA 134; 2009 (2) SA 150 (SCA) (Fourway Haulage SA) at paras 30-2 and Standard Chartered Bank of Canada v Nedperm Bank Ltd [1994] ZASCA 146; 1994 (4) SA 747 (A) at 764I-J.

[7] Country Cloud Trading CC v MEC: Department of Infrastructure Development [2013] ZASCA 161; 2014 (2) SA 214 (SCA) at para 27. See the explanation advanced by Nkabinde J in Lee above n 1 at para 38: “The point of departure is to have clarity on what causation is. This element of liability gives rise to two distinct enquiries. The first is a factual enquiry into whether the negligent act or omission caused the harm giving rise to the claim. If it did not, then that is the end of the matter. If it did, the second enquiry, a juridical problem, arises. The question is then whether the negligent act or omission is linked to the harm sufficiently closely or directly for legal liability to ensue or whether the harm is too remote. This is termed legal causation.”

[7] Country Cloud Trading CC v MEC: Department of Infrastructure Development [2013] ZASCA 161; 2014 (2) SA 214 (SCA) at para 27. See the explanation advanced by Nkabinde J in Lee above n 1 at para 38:

“The point of departure is to have clarity on what causation is. This element of liability gives rise to two distinct enquiries. The first is a factual enquiry into whether the negligent act or omission caused the harm giving rise to the claim. If it did not, then that is the end of the matter. If it did, the second enquiry, a juridical problem, arises. The question is then whether the negligent act or omission is linked to the harm sufficiently closely or directly for legal liability to ensue or whether the harm is too remote. This is termed legal causation.”

[8] Zealand v Minister for Justice and Constitutional Development [2008] ZACC 3; 2008 (4) SA 458 (CC); 2008 (6) BCLR 601 (CC) at para 43. See also S v Coetzee [1997] ZACC 2; 1997 (3) SA 527 (CC); 1997 (4) BCLR 437 (CC) at para 159, where O’Regan J held that “the state may not deprive its citizens of liberty for reasons that are not acceptable, nor, when it deprives citizens of freedom for acceptable reasons, may it do so in a manner which is procedurally unfair.”