Moodley v Ekurhuleni Metropolitan Municipality and Another (2015/04528) [2017] ZAGPJHC 235 (23 August 2017)

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA,

GAUTENG LOCAL DIVISION, JOHANNESBURG

CASE NO:2015/04528

Not reportable

Not of interest to other judges

Revised.

In the matter between:-

MOODLEY, NEELAN Plaintiff and THE EKURHULENI METROPOLITAN MUNICIPALITY First Defendant THE MINISTER OF POLICE Second Defendant

JUDGMENT

CRUTCHFIELD AJ:

[1] The plaintiff claimed general damages in respect of his arrest and detention.

[2] It was common cause that:

2.1 The plaintiff was arrested without a warrant of arrest in terms of s 40(1)(j) of the Criminal Procedure Act 51 of 1977 (‘CPA’), on a charge of ‘interference with our duties’;

2.2 The arrest was effected by members (‘Metro officials’) of the Ekurhuleni Metropolitan Police Department (‘the EMPD’) at approximately 12h15 on 12 June 2014;

2.3 Pursuant thereto, the plaintiff was detained at the instance of the arresting Metro officials by members (‘SAPS members’) of the South African Police Service (‘SAPS’) at the Benoni Police Station holding cells. The Plaintiff was released at approximately 19h30 on 12 June 2014;

2.4 The relevant Metro officials and SAPS members acted at all material times, within the course and scope of their employment with the EMPD and SAPS respectively.

2.5 The plaintiff complied with the provisions of s 3 of the Institution of Legal Proceedings Against Certain Organs of State Act, 40 of 2002.

2.6 The issues for determination at the trial were the following:

2.6.1 The lawfulness or otherwise of the plaintiff’s arrest by the Metro officials;

2.6.2 The lawfulness or otherwise of the plaintiff’s detention;

2.6.3 The quantum of the general damages to be awarded to the plaintiff, if any, including which of the defendants was liable for the plaintiff’s damages resulting from his detention at the Benoni Police Station;

2.6.4 Which party should pay the costs of the action and the scale of any costs order.

[3] It was common cause between the parties that the defendants bore the onus of proving that the arrest and detention of the plaintiff were lawful. However, whilst this agreement was correct in respect of the claim against the second defendant, it was not wholly accurate as regards the first defendant in the light Minister of Safety and Security v Sekhoto and another.[1]

[4] There was some dispute at the commencement of the trial as to who was required to begin. I ruled that the plaintiff ought to begin leading the plaintiff’s evidence on the issues upon which he carried the burden of proof, which ruling accorded with an agreement reached between the parties at the pre-trial conference held by them.

[5] Two conflicting versions of the events that lead to the plaintiff’s arrest were ventilated at the trial. The plaintiff gave one version and his testimony was supported by that of his twenty-two(22) year old son, effectively an eye-witness, who was with the plaintiff at the time of his arrest.

[6] The other version was that of Constable Kunene (‘Kunene’), a Metro official, called by the first and second defendants. Certain aspects of his version were corroborated by Constable Skosana (‘Skosana’), his partner on the day in question.

[7] The plaintiff testified that he was born on 30 August 1956 and was 57 years of age at the time of his arrest. He lived in Benoni with his wife and two major children. The plaintiff was the sole breadwinner in the household.

[8] The plaintiff’s account of the events on the day in question, broadly speaking, was the following:

8.1 The plaintiff and his son were performing deliveries at the relevant time. The plaintiff’s son was driving when the vehicle was brought to a halt by Kunene.

8.2 Whilst there was some variance between the plaintiff’s witnesses and those of the defendants as to the precise direction in which the relevant roads operated, this was not a material aspect.

8.3 The plaintiff testified that Kunene accused the plaintiff’s son of travelling through a red robot without stopping. The son, however, said the robot was amber whilst Kunene insisted that it was red. The plaintiff told his son to apologise to Kunene and not to argue with him. Kunene requested the son’s driver’s licence. The plaintiff testified that his son spoke very softly but the Metro official took the licence and proceeded to the Metro officials’ vehicle.

8.4 It was some ten minutes before Kunene returned, during which time the plaintiff alighted from the vehicle and walked up and down the pavement alongside the vehicle whilst carrying out his religious chants. Kunene returned to the plaintiff’s son holding a book and asked the son for his name, (notwithstanding that he already had the driver’s licence), to which the plaintiff’s son replied very softly. As a result, the plaintiff, who had approached Kunene from the pavement, repeated his son’s name, to which Kunene responded that he was not talking to the plaintiff. The plaintiff replied to the effect that he was trying to assist.

8.5 The plaintiff gave evidence that whilst his son has speech problems, he was speaking very softly because it was his first experience of being stopped by a Metro official and he was in a state of shock. The plaintiff testified that he could not hear his son. Hence, the plaintiff intervened by responding to Kunene’s questions rather than simply informing Kunene that his son had a speech difficulty.

8.6 Kunene warned the plaintiff that if he interfered again, Kunene would arrest him. The plaintiff protested that he was merely trying to assist.

8.7 Kunene then proceeded to arrest the plaintiff, duly assisted by Skosana and a third Metro official in the vicinity. The plaintiff initially attempted to resist but was cuffed with his hands behind his back and taken to the Metro officials’ vehicle.

[9] The plaintiff alleged that he was in severe pain at the time and shouted at his son to give the Metro officials the information they required because he was in pain.

[10] One of the two Metro officials who assisted Kunene, (described by the plaintiff as “the youngster”), pushed the plaintiff onto the floor of the backseat of the vehicle, causing the plaintiff’s left leg to impact the vehicle’s floor whilst his body was crouched over the backseat. The third Metro official subsequently assisted the plaintiff to sit properly on the backseat.

[11] The incident occurred close to the Benoni Police Station (‘the police station’), to where the Metro officials transported the plaintiff after procuring the required information from the plaintiff’s son and issuing him with a ticket.

[12] The plaintiff testified that he was in pain, admitted that he had shouted and made use of what he termed ‘the F-word’, enquiring in somewhat colourful language why the Metro officials were arresting him. He volunteered that he was angry.

[13] Upon arrival at the police station, the plaintiff was taken to a reception area attached to the holding cells (‘the reception’).

According to the plaintiff, it was the first time he had been in police cells.

[14] In the reception, the plaintiff sat on a bench whilst a further Metro official, (‘the fourth Metro official’), asked for certain information and handed the plaintiff a piece of paper upon which he said the plaintiff’s rights were stated and that the plaintiff must read. The plaintiff was still handcuffed. The fourth Metro official wanted to place the folded piece of paper into the plaintiff’s pocket, which the plaintiff refused to allow, and requested the removal of the handcuffs. The Metro officials said the handcuffs were old ones, they did not have the key and somebody had gone to fetch it. Subsequently, the third Metro official returned and removed the handcuffs.

[15] The plaintiff sat in the reception for approximately half an hour. Thereafter, he was taken to a cell, occupied, at that stage, by one other male arrestee. Additional arrestees were placed in the cell as the day progressed.

[16] The plaintiff was unable to eat the evening meal as he ascribed to a vegetarian diet. After the meal, the plaintiff was removed from the cell and fingerprints and a statement were taken from him.

[17] The plaintiff was warned to appear in court the following morning and was released on bail of R500.00.

[18] The plaintiff attended at court the following day. He was not required to appear in court, but was told to fetch his bail money and that he was free to go as there was no case against him. Nothing further was heard by the plaintiff in respect of the matter.

[19] The plaintiff testified that the conditions inside the cell were not fit for human occupation. The cell was dirty and had mattresses on the floor. An open lavatory was situated on one side of the cell. The toilet was dirty, emitted a foul odour and serviced multiple users within full view of other arrestees.

[20] The plaintiff felt degraded by the ordeal. Whilst he testified that it was his first experience of a cell, and his first exposure to a place of that nature, this was placed in some doubt under cross-examination.

[21] It must be said that the plaintiff struggled to confine his replies to the questions directed to him. Inevitably, the plaintiff’s

responses resulted in a lengthy repetition of evidence already led by the plaintiff, and he was requested on multiple occasions to confine his replies to the questions. The plaintiff was described in argument by counsel for the first defendant as argumentative,

belligerent and disinclined to answer straightforward questions.

[22] The plaintiff testified under cross-examination by the first defendant’s counsel that he generally did not have issues with Metro officials and had previous experience of being stopped by them. He stated that he was calm at the relevant time. There was nothing strange in Kunene’s attitude when he addressed the plaintiff’s son and Kunene was neither arrogant nor aggressive.

[23] The plaintiff was a bit restless waiting in the vehicle after Kunene returned to his official vehicle, and alighted to walk up and down and perform his religious chants. Once Kunene returned to the driver, the plaintiff went to the driver’s window to see what was happening. Everything was calm. Kunene was professional, calm and collected.

[24] The plaintiff replied to Kunene’s questions because his son was speaking very softly. He was polite and there was no reason for Kunene to take offence. The plaintiff did not understand why Kunene said he was interfering when he was merely trying to assist by furnishing the necessary particulars.

[25] Kunene conveyed to the plaintiff that he should refrain, and that Kunene was not speaking to him. The second defendant’s counsel enquired as to why the plaintiff, knowing that Kunene wanted him to desist from interfering, did not simply return to his side of the vehicle.

[26] The plaintiff’s reply was that it seemed as if his son could not speak The plaintiff’s son had a speech problem, was not able to speak properly as a child and although as an adult he could talk, he struggled to get his words out.

[27] Hence, to the second defendant’s counsel’s question as to why the plaintiff did not simply inform Kunene that his son had a speech problem, the plaintiff replied that he supplied the requested details to Kunene. The plaintiff could not understand why Kunene said he was interfering when he was simply trying to assist.

[28] The plaintiff testified that his son was able to speak on some occasions but not on others. Importantly, he conceded that it would not have been immediately obvious to Kunene that his son had a speech difficulty, and, that his son may have sounded normal to Kunene.

[29] The plaintiff agreed that it was absurd of Kunene to arrest him when he was simply trying to assist. This was despite his failure to advise Kunene of his son’s speech defect.

[30] The plaintiff, under cross-examination, disputed certain statements made by him in his evidence-in-chief, as to whether he informed Kunene that his son was unemployed. Whilst the plaintiff initially admitted as much, he subsequently denied the admission, alleging that he must have misheard the question.

[31] The plaintiff testified in cross-examination for the first time that he had a semi-circular mark of approximately two (2) mm on his right wrist, allegedly a result of the handcuffs being too tight on him. The mark remained evident notwithstanding the time lapse of approximately three (3) years. Notwithstanding, he did not advise his attorney thereof despite the experience being fresh in his mind when he consulted with his attorney initially. No mention was made of the alleged injury in the initial letter of demand sent by the plaintiff’s attorney during approximately 2014.

[32] The plaintiff denied under cross-examination that he insisted he would not pay the fine because he was unemployed. He denied that he pushed Kunene, told him he would lose his job, or, that he interfered with Kunene to the extent that Kunene was unable to converse with the driver. Skosana effectively distracted the plaintiff and Kunene was then able to issue the fine.

[33] The plaintiff denied further that he followed Kunene (after Kunene had issued the traffic fine and continued with his duties), to Kunene’s original position observing the traffic, denied that he pushed Kunene, threatened him again that he would lose his job, and denied that it was at that stage, that the plaintiff was arrested as he was preventing Kunene from performing his duty observing the traffic.

[34] It was put to the plaintiff in cross-examination for the second defendant that Kunene read the plaintiff his Constitutional rights in the reception, and that the plaintiff refused to sign acknowledgement thereof. The plaintiff denied that it was Kunene who read him his rights, and, denied his alleged refusal to sign as he was still in handcuffs at the time.

[35] The plaintiff’s son’s was a softly spoken courteous young man who completed his Grade 10 school year. His testimony, although quiet, was audible to all members of the court. His evidence dovetailed closely with that of the plaintiff.

[36] The plaintiff closed his case.

[37] Kunene was the arresting office. He had ten (10) years service as a Metro Police officer and held a National Diploma in Traffic. It was common cause that he was a peace officer. He testified that he was performing traffic law enforcement duties together with his partner on the relevant day, Skosana.

[38] Kunene testified that Metro officers usually work in pairs and on the day in question, he was paired with Skosana, his usual partner being off duty. He testified initially that a third officer was not present with him and Skosana as alleged by the plaintiff.

[39] At approximately 11h00 – 11h30 he observed the plaintiff’s son driving the vehicle through a red traffic light. Kunene stopped the vehicle at approximately 11h15 to 11h20. Kunene could not remember more precisely as it was approximately three (3) years ago.

[40] Kunene greeted the driver, told him he had travelled through a red light and asked for his driver’s licence. The driver alleged that the robot was amber, Kunene told him it was red and that he intended giving him a fine. The driver handed over his driver’s licence and Kunene started writing out the fine. At that stage, the plaintiff exited the vehicle, approached Kunene and said he would not accept the fine as his son was not working and how were they going to pay the fine.

[41] Kunene testified that the plaintiff pushed him against his chest, and he warned him not to do so, stating that he was not talking to the plaintiff but to the driver, the plaintiff’s son. Notwithstanding, the plaintiff persisted that his son was not working and pushed Kunene repeatedly, so that Kunene was unable to write and warned the plaintiff that he was going to arrest him for interference.

[42] Skosana became aware of the altercation and arrived on the scene. He took the plaintiff to the front of the vehicle advising him to approach the court if he disputed the fine. Once the plaintiff was away from the immediate vicinity, Kunene was able to speak to the driver and although it was not easy for Kunene to understand the plaintiff’s son, the son gave Kunene the information he required and Kunene issued the fine to the driver who accepted it.

[43] Kunene testified that the plaintiff was ‘so arrogant’. He differentiated between the plaintiff’s conduct and that of his son, stating that ‘the driver was good to me, not arrogant, responded to me, listened. The father took responsibility for what was done (by) the son”.

[44] Having issued the fine, Kunene returned to where he was observing the traffic initially. The plaintiff followed him. The plaintiff approached him saying that he would show Kunene, that he was going to lose his job and repeatedly pushed him against his chest. Hence, Kunene called Skosana to assist him to arrest the plaintiff because he could not concentrate on the traffic.

[45] Kunene told the plaintiff he was under arrest for interference, handcuffed him with his hands behind his back, placed him in the vehicle and drove him to the police station, a drive of approximately five (5) minutes, the police station being a block and a half away.

[46] At the police station, the plaintiff was taken directly to the SAPS members in the reception, seated there and the handcuffs unlocked with the key that was kept in the pouch along with the cuffs. Kunene did not see any injuries to the plaintiff and nor did the plaintiff reported any injuries to him.

[47] Kunene then proceeded to read the plaintiff his Constitutional rights.

[48] Kunene testified that he was the Metro official who informed the plaintiff of his rights, the manuscript handwriting on the

Certificate By Detainee portion of the SAPS 14A document, was his, as was the signature of the person who informed the detainee of his rights. Kunene stated that the document was not signed by the plaintiff because the plaintiff refused to do so and that the plaintiff was free of the handcuffs at that stage. The SAPS 14A document reflected that the plaintiff’s rights were explained to him at 12h27.

[49] In respect of the SAPS 10 document, Kunene stated that that form was used by SAPS members. He confirmed that his signature appeared at the end of the entry that referred to the plaintiff, on the SAPS 10. Kunene testified that an SAPS member wrote the entry, and Kunene filled in his name in the space left for it by the SAPS member, and signed at the end of the entry. The entry recorded that the plaintiff was detained at 12h10. Kunene did not know if the plaintiff was put in the cells because he handed him over to the SAPS and left the reception to open a case of interference against the plaintiff.

[50] As regards the plaintiff’s son’s speech impediment, Kunene explained that the son could speak and Kunene was able to obtain the necessary information from him. The problem, however, was that the plaintiff did not want his son to be issued

with the fine. Kunene acknowledged that he could not arrest a person for assisting him.

[51] Kunene gave evidence on behalf of the first and second defendants. He was unsure about the presence of the third Metro officer referred to by the plaintiff, as they usually worked in pairs. Kunene stated that the handcuffs and the key were kept together. The plaintiff was released from the handcuffs once he was in the reception as the reception door was kept locked.

[52] Kunene testified in detail how he explained the plaintiff’s Constitutional rights to him. The plaintiff refused to sign for receipt of the document, stating that his lawyer would take the necessary steps. Kunene gave the document to him and the plaintiff put it in his pocket.

[53] Kunene then handed the plaintiff over to the SAPS members, a process requiring the recordal by a SAPS member of the plaintiff’s

name, gender and age in the occurrence book, and the provision of an OB (‘occurrence book’) number. Kunene then left the reception and did not see the plaintiff again.

[54] As to the plaintiff’s complaint that the handcuffs were too tight, Kunene denied as much and stated that if the handcuffs were too tight they would damage the person’s hands and ‘that is not allowed’. Furthermore, the SAPS could not allow the detention of an injured person. Kunene denied that the plaintiff complained that the handcuffs were tight or that he was injured. Kunene testified that he could not remember the exact period of time during which the plaintiff was in the reception prior to the handover but did not think it was more than fifteen (15) minutes. Nothing untoward or illegal occurred in respect of the plaintiff’s arrest or detention.

[55] Under cross-examination by the plaintiff’s counsel, Kunene testified that as a peace officer, s 40 of the CPA permitted him to arrest anybody who committed an offence. The offence in this instance was interference with a Metro officer’s duties. Kunene could not recall in terms of which subsection of s 40, he arrested the plaintiff.

[56] In the event that a suspect was interfering with Kunene in the performance of his duties and if Kunene could not perform his duties because of that interference, it was an offence.

[57] The requirements for an arrest on a charge of interference were that there was an interference that was unlawful, intentional and committed in Kunene’s presence.

[58] Kunene could not remember the further requirements but the abovementioned comprised an offence. As to the requirement of a physical aspect to the interference, Kunene stated that the interference could be by use of power or by means of talking.

[59] Kunene was referred to some discrepancies in the timeline as to the plaintiff’s arrest, his arrival at the police station and the arrest affidavit deposed to by him.

[60] As regards Kunene’s arrest affidavit, it appeared from that affidavit that there was a third Metro officer working with Kunene and Skosana at the time of the incident, as testified by the plaintiff. Notwithstanding the reference thereto in the affidavit,

Kunene was not able to recall the third officer although he did not dispute the content of the statement as being correct. He recalled Skosana because it was Skoshana who assisted him with the plaintiff’s arrest.

[61] The third Metro officer was ‘S S Kunene’. Kunene stated in the affidavit that the plaintiff, after Kunene issued the driver with the ticket, ‘jumped out of the motor vehicle and started shouting at me and swearing at me’. Kunene did not state in the affidavit, however, that the plaintiff had pushed him.

[62] Kunene conceded that he wrote the affidavit within the hour after the incident. In the event that the plaintiff had pushed Kunene as testified by him, Kunene would have written it in the affidavit. Notwithstanding, Kunene attempted to explain the discrepancy and persisted that the plaintiff had pushed him and said that he would lose his job.

[63] Nor did Kunene state in the affidavit that after he returned to his original position, the plaintiff followed him and prevented him from observing the traffic, at which point Kunene arrested him. However, Kunene stated in the affidavit that he had read the plaintiff his constitutional rights.

[64] Notwithstanding the discrepancies between Kunene’s affidavit and the evidence given by him in court, his version of the events leading to the plaintiff’s arrest, that the plaintiff interfered with him to the extent that he was unable to perform his duties, was more probable than the version alleged by the plaintiff and his son, to the effect that the plaintiff was merely trying to assist pursuant to which Kunene arrested him.

[65] In effect, Kunene asked the court to believe a version different to that stated by him in his affidavit deposed less than one hour after the incident. Kunene’s answer was that he did not remember the precise timeline nor the number of Metro officers on the scene at the time of the plaintiff’s arrest but he remembered everything else that happened. Furthermore, it was the second incident of interference when the plaintiff followed Kunene to his original position observing the traffic, for which Kunene arrested him, of which no mention was made in the statement. Notwithstanding, Kunene was adamant that he would not have arrested the plaintiff if the plaintiff had not interfered with him.

[66] Kunene confirmed that he knew that he had a discretion to arrest the plaintiff or not. He arrested the plaintiff because the plaintiff was disturbing him in the performance of his duties.

[67] Kunene confirmed that he deposed to the arrest affidavit because he intended the plaintiff to be prosecuted for his interference. Kunene did not think of issuing a notice to the plaintiff to appear in court. It was his duty to arrest the plaintiff and the court would decide how to deal with him. Kunene did not consider the punishment that might follow if the plaintiff was found guilty as the court would be the one to decide a suitable sentence.

[68] Kunene denied that the plaintiff had told his son to apologise to Kunene. If the plaintiff’s son had apologised it would have shown he was wrong and Kunene could have used his discretion.

[69] As regards the plaintiff’s son’s speech difficulty, Kunene testified that he could hear what the son was saying although he spoke softly. The son was cooperative and Kunene obtained his address from the son not from the plaintiff. The plaintiff did not assist Kunene and Kunene would not have arrested the plaintiff for doing so. Kunene had already issued the fine when the plaintiff was arrested. There was no delay between the plaintiff entering the Metro officials’ vehicle and being driven to the police station. There was no delay in releasing the plaintiff from the handcuffs. The keys of the handcuffs were not unavailable as the cuffs were kept with the keys to unlock them.

[70] To the question that it was his colleague, S S Kunene, who had signed the SAP 14A and explained his rights to the plaintiff, Kunene, notwithstanding the detailed explanation given by him in his evidence in chief that he had dealt with the plaintiff’s constitutional rights, conceded it was possible that S S Kunene had done so.

[71] My impression of Kunene at that stage was that he was mortified at having made the error in his earlier testimony. He apologised and stated that he could not remember whether S S Kunene was present or not. He conceded that the arresting affidavit did mention S S Kunene. Kunene had made an error, but he had not sought to deceive the court. He apologised repeatedly and conceded that his mistake, without insisting the contrary.

[72] Kunene testified in reply, that he wanted a court to take steps in connection with the plaintiff’s conduct described in the affidavit. He did not intend the affidavit as a complete rendition of the events but rather as a summary.

[73] The first defendant’s second witness was Constable Benjamin Skosana. He was a member of the EMPD from 2009 and held a National Diploma in Traffic. Skosana correlated Kunene’s version that the officers ordinarily worked in pairs and a vehicle was allocated to each pair. It did occur occasionally, that more than two officers worked together.

[74] Skosana was standing approximately two (2) metres or so from Kunene when Kunene stopped the plaintiff and his son’s vehicle.

Skosana heard some disturbance emanating from the scene and approached the vehicle. Somebody was speaking loudly and Skosana became aware that the driver was cooperating but the passenger was interfering, by saying various things including that his son did not go through the red light and could not pay the ticket as he was not working.

[75] Skosana advised him that they could go to court and negotiate a reduction or withdrawal of the ticket. It appeared to Skosana that the father agreed with the advice. The plaintiff subsequently alighted from the vehicle and walked to Kunene, who called Skosana and said that the plaintiff was disturbing him as he was busy writing, the plaintiff was pushing him.

[76] Skosana intervened, there was mention of arrest, the plaintiff returned to his side of the vehicle and the Kunene finished writing out the ticket.

[77] A second incident occurred when the plaintiff followed Kunene telling Kunene that he would lose his job, the plaintiff would speak to his lawyer and show Kunene how he would sort it out. The plaintiff was following Kunene from behind pushing him. Kunene informed Skosana that the plaintiff was pushing him.

[78] The Metro official arrested the plaintiff and took him to the police station. Skosana handed the plaintiff over to the SAPS members and did not have any further involvement in the matter.

[79] Skosana correlated Kunene’s evidence of a second altercation/incident between the plaintiff and Kunene, and that it was as a result thereof that the plaintiff was arrested.

[80] There were various discrepancies between Skosana’s evidence-in-chief and under cross-examination. The most material was

Skosana’s testimony in chief that when he approached Kunene to assist with arresting the plaintiff, Kunene and the plaintiff were walking but under cross-examination he testified that Kunene and the plaintiff were stationary when Kunene requested that he assist with the arrest, that Kunene had approached him and asked Skosana to help with arresting the plaintiff.

[81] Skosana’s evidence was at variance in certain respects with that of Kunene, particularly in respect of the precise sequence of events prior to the plaintiff’s arrest. However, Kunene’s version was supported in respect of the essential elements of the plaintiff’s interference, that the plaintiff pushed Kunene and that there was a second incident after Kunene had issued the ticket.

[82] Skosana testified that he was the officer who removed the handcuffs after seating the plaintiff in the reception. Thereafter he left the reception. Skosana denied that the handcuffs were left on the plaintiff after he was taken to the reception. Skosana also denied that the plaintiff suffered an abrasion on one wrist resulting from the cuffs being too tight. Skosana denied that the handcuffs were old and that the keys had to be fetched from the National Prosecuting Director’s offices. Skosana had already left the reception when the plaintiff’s notice of rights was issued to him.

[83] Thereafter, the first and second defendants closed their cases.

[84] Mr Du Bruyn made comprehensive heads of argument available to me for which I was most grateful.

[85] I was not impressed by the plaintiff as a witness. His evidence coincided with that of his son to a degree that was improbable taking into account the lapse of time since the incident.

[86] Furthermore, the plaintiff was argumentative and belligerent under cross-examination. His answers were long-winded and repetitive. He failed to answer relatively simple questions in an open and direct manner. Concessions that one would ordinarily expect of an open and forthright witness, were not forthcoming from the plaintiff. He denied that he had contradicted himself in instances where he clearly had done so.

[87] Moreover, the plaintiff’s evidence that he alighted from the car to perform his religious chants and that he intervened in order to assist, and persisted with that intervention despite Kunene warning him that he would be arrested, was improbable.

[88] Notwithstanding the contradictions and difficulties with Kunene’s evidence, and, the discrepancies between Kunene and Skosana’s respective versions of the events, the first defendant’s version overall, was far more probable and credible than that of the plaintiff.

[89] In the light of the above, the plaintiff’s version was improbable to the extent that it could not have happened in the

manner described by him. I reject the plaintiff’s version of the events that lead to his arrest.

[90] An incident occurred during the course of the plaintiff’s cross-examination that requires mention, particularly in the light of the first defendant’s version. Whilst counsel for the second defendant was addressing me, the plaintiff insisted on interrupting or ‘chipping in’, so to speak, not once but approximately three times (although I did not count the interruptions), notwithstanding that the second defendant’s counsel was speaking, to the point where I was forced to instruct the plaintiff to stop interrupting the second defendant’s counsel’s submission to me.

[91] Given the essence of Kunene’s account of the events that led to the plaintiff’s arrest, the correlation between that version and the plaintiff’s persistent interruptions of the second defendant’s counsel, was marked.

[92] The SCA in Sekhoto, relying on Duncan v Minister of Law and Order,[2] dealt with an arrest by a peace officer without a warrant in terms of s 40(1)(b) of the CPA. Whilst the focus of the matter before me was s 40(1)(j), the principles articulated in Sekhoto were relevant to the determination before me.

[93] Sekhoto held[3] that an arrest under the circumstances articulated in s 40(1)(b), (and by parity of reasoning, s 40(1)(j)) of the CPA, would not amount to a deprivation of freedom that is arbitrary or without just cause, in conflict with the Bill of Rights, (s 12(1)(a) of which guarantees the right of security and freedom of the person, and includes the right ‘not to be deprived of freedom arbitrarily or without just cause’.[4]) A lawful arrest cannot be arbitrary.

[94] Once the jurisdictional facts for an arrest in terms of s 40(1)(j)) are present, the peace officer’s discretion whether to arrest or not incepts. The peace officer is not obliged to effect an arrest.[5]

[95] Whilst the discretion must be properly exercised, the grounds upon which the exercise of the discretion can be questioned are ‘narrowly

circumscribed’.[6]

[96] An exercise of the discretion will be unlawful if the power to arrest is knowingly invoked for a purpose not contemplated by the legislature. The decision to arrest must be based on the intention to bring the arrested person to justice.

[97] Assuming the existence of the necessary jurisdictional facts, the SCA accepted that the traditional common-law grounds of review (originally formulated in Shidiack v Union Government[7]), should be used to test the legality of the exercise of a discretion to arrest,[8] subject to (in the light of the Bill of Rights[9]), the exercise of the discretion also being objectively rational.

[98] It remains a general requirement that any discretion must be exercised in good faith, rationally and not arbitrarily. In effect, a peace officer is entitled to exercise his discretion as he sees fit, provided that he remains within the bounds of rationality. The standard is not breached because the officer exercised the discretion in a manner other than that deemed optimal by a court. A number of choices may be open to him, all of which may fall within the range of rationality. The standard is not perfection or even the optimum, judged from the vantage of hindsight – so long as the discretion is exercised within this range, the standard is not breached.

[99] The power to arrest may be exercised only for the purpose of bringing the suspect to justice.[10] However, if a peace officer were to be permitted to arrest only once he is satisfied that the suspect might not otherwise attend the trial, then the statutory structure would be entirely frustrated. To suggest that such a constraint upon the power to arrest is to be found in the statute by inference, is untenable.[11]

[100] The purpose of an arrest by a peace officer is no more than to bring a suspect before a court, or a senior officer tasked with determining whether a suspect ought to be detained further, pending trial.

[101] It follows that the enquiry to be made by a peace officer is not whether to bring the suspect to trial but whether the case is one in which that decision ought properly to be made by a court or a senior officer. Whether a decision on that question is rational depends upon the particular facts that the peace officer encounters. There will be cases where the circumstances are such that it would clearly be irrational to arrest. This, in effect, was the plaintiff’s argument.

[102] As to the onus, Sekhoto[12] restated that once the jurisdictional facts for an arrest in terms of s 40(1) of the CPA were established (by the first defendant), (the jurisdictional facts ought to have been pleaded by the first defendant), it was for the plaintiff to prove that the peace officer had exercised the discretion in an improper manner. Hence:

‘A party who alleges that a constitutional right has been infringed bears the onus. The general rule is also that a party who

attacks the exercise of (a) discretion, where the jurisdictional facts are present, bears the onus proof. This is the position whether or not the right to freedom is compromised.’[13]

[103] The jurisdictional facts necessary for a defence in terms of s 40(1)(j) CPA are that the arrestor is a peace officer, the arrestee

must act wilfully, the arrestee must obstruct the arrestor in the execution of his duties and the arrestor must be exercising a lawful duty at the time.

[104] The plaintiff submitted that the required jurisdictional facts were not proved as the physical aspect required for a valid interference, was absent.

[105] To my mind, the nature of the physical aspect required was well illustrated by R v Weyer[14] in which he appellant had refused to step aside after being requested to do so by a policeman, thus hindering the policeman in the performance of his duties. The court held that arrest was justified.

[106] Kunene articulated his understanding of the requirement under cross-examination by the plaintiff, that the interference could be by the use of power or by talking. Kunene could not be faulted.

[107] On Kunene’s evidence, the plaintiff’s interference (including the plaintiff’s badgering, belligerent and argumentative stance) started at the vehicle and served to obstruct Kunene’s attempts to issue the fine, causing Kunene to warn the plaintiff to desist. It was only once the plaintiff moved away, that Kunene was able to complete his task and issue the fine. Thereafter, the plaintiff followed Kunene, persisted with his misconduct, and thereby obstructed Kunene in his observation of the traffic.

[108] Hence, the first defendant proved the physical aspect and the required jurisdictional facts were established. In the circumstances, I am of the view that the first defendant proved a wilful interference by the plaintiff and Kunene was within his rights to invoke his discretion to arrest in terms of s 40(1)(j) of the CPA.

[109] The plaintiff argued that even assuming all of the required jurisdictional facts for arrest were present, Kunene did not exercise his discretion adequately or at all. This because Kunene did not consider options other than arrest despite knowing that he had a discretion to arrest or not.

[110] Arrest, according to the plaintiff, ought to have been the last resort and other options considered first. The fact that Kunene stated that it was ‘his duty to arrest the plaintiff’ indicated that he failed to exercise his discretion, thus rendering the arrest unlawful.

[111] I did not understand Kunene to mean that he had no option but to arrest the plaintiff. Kunene knew that he had a discretion, and that the plaintiff’s interference with him entitled him to arrest the plaintiff.

[112] Moreover, the plaintiff’s argument in this regard was dealt with in Sekhoto.[15] Firstly, Kunene was entitled to exercise his discretion as he saw fit provided he did so rationally.

‘The standard is not breached because an officer exercises the discretion in a manner other than that deemed optimal by the court. A number of choices may be open to him, all of which may fall within the range of rationality. The standard is not perfection or even the optimum, judged from the vantage of hindsight — so long as the discretion is exercised within this range, the standard is not breached.’[16]

[113] Secondly, Kunene was not obliged, prior to arresting the plaintiff, to satisfy himself that the plaintiff might not attend the trial unless he was arrested.[17]

[114] Kunene’s purpose in arresting the plaintiff could not be criticised. Kunene’s object was to bring the plaintiff before a court in order that a court might decide how to deal with the plaintiff thereafter.

[115] There was no evidence that Kunene did not act in good faith or that he did not ‘duly and honestly’[18] apply himself to the circumstances and issues at hand.

[116] Moreover, viewed objectively, I cannot find that the decision to arrest the plaintiff, in the light of the plaintiff’s

persistent misconduct at the relevant time, was not rational. It may not have been optimal but I cannot find that Kunene breached the standard required of him.

[117] Counsel for the first defendant conceded that the plaintiff’s Constitutional rights ought to have been explained to him at the time of his initial arrest rather than waiting until he arrived at the police station.

[118] The plaintiff conceded that the plaintiff was transported to the police station as soon as possible, as required by s 64H of the SAPS Act.[19]

[119] The plaintiff argued that the Metro officials had exceeded their statutory powers by detaining the plaintiff at the police station, when they ought to have handed the plaintiff over to the SAPS. Even if the initial arrest and detention by the Metro officials was lawful, the plaintiff argued that the further detention was not.

[120] Fulfilment of the requirements of s 40(1)(j) of the CPA, does not determine the lawfulness or otherwise of the plaintiff’s further detention at the police station.[20] The law is clear that once an arrested person is brought to the police station by the Metro officials, the powers of those officials terminates. Only SAPS members have the power to further detain an arrested person after the initial arrest.

[121] Hence, the question arose as to whether the detention of the plaintiff at the police station was effected by the Metro officers. In my view, the evidence did not support the plaintiff’s argument that the plaintiff was detained by the Metro officials at the police station. Kunene was clear in his evidence that the books of forms such as the occurrence book and the cell register were for the use of SAPS members only. The Metro officials only filled in their names in the space provided by the SAPS member concerned, and signed the entry.

[122] Furthermore, Kunene testified that there was a door between the reception and the holding cells through which only SAPS members were permitted to proceed. In effect, all that was done by the Metro officials in the reception was to escort the plaintiff inside, read him his Constitutional rights, remove his handcuffs and furnish the necessary particulars required by the SAPS members. Thereafter, the Metro officials left the reception.

[123] That finding, however, is not determinative of the lawfulness or otherwise of the plaintiff’s further detention by the SAPS at the police station.

[124] The initial arrest by the Metro officials in terms of s 40 of the CPA, and the subsequent detention of the plaintiff by SAPS at the police station in terms s 50 of the CPA, were separate statutory acts.[21]

[125] The SAPS members were obliged to consider afresh, prior to detaining the arrested person further, whether the detention by the SAPS of the plaintiff was justified and lawful,[22] indeed, ‘whether the detention (was) necessary at all’.[23]

[126] The failure of the SAPS members to do so was unlawful.[24]

[127] The burden of proof fell upon the second defendant to establish that the further detention of the plaintiff at the police station was lawful.

[128] The second defendant was obliged to rely upon the evidence of Kunene. Given that Kunene was a Metro official and not a SAPS member, Kunene’s evidence did not suffice to show that the further detention of the plaintiff by the SAPS at the police station was lawful.

[129] However, the plaintiff’s evidence of the events at the police station was that subsequent to the evening meal, he was fingerprinted, made a statement, and was released on bail shortly thereafter. That evidence was not disputed. It was apparent that the SAPS determined after the evening meal, when the plaintiff had already been detained for some hours, that it was not necessary to detain the plaintiff.

[130] The plaintiff was released at about 19h30, having been entered into the cells at 12h10, a period of approximately seven (7) hours by my reckoning.

[131] The plaintiff gave evidence that the conditions of his detention at the police station were not consistent with human dignity. Whilst the conditions under which the plaintiff was detained were not clean or hygienic, the plaintiff’s exposure thereto was limited given that his detention endured for a relatively short time of approximately seven (7) hours.

[132] In the circumstances, I am of the view that the detention of the plaintiff by the SAPS was unlawful and that the plaintiff was entitled to an award of damages consistent with the violation of his constitutional rights to freedom and dignity, and the extent of the violation thereof.

[133] Mr Njana for the second defendant argued that the facts relevant to the plaintiff’s evidence of the conditions in the cell and the open toilet that emitted a foul odour, were not pleaded by the plaintiff in paragraphs 14 to 17 of his particulars of claim. Given that the plaintiff’s detention at the hands of the SAPS endured only for few hours, an award of general damages of approximately R20 000.00 with costs on the Magistrates’ Court scale was appropriate.

[134] ‘It is trite that the assessment of general damages is a matter within the discretion of the trial court and depends upon the unique circumstances of each particular case’.[25]

[135] I was referred by the plaintiff and the defendants’ legal representatives to various reported and unreported cases of the SCA and the High Court, in respect of the extent of the variance in the quantum of the awards granted by our courts. I considered those cases.

[136] In this instance, there was no indication of an improper motive or malice on the part of the SAPS members in detaining the plaintiff, and he was not subjected to any violence or harsh conduct. Whilst the plaintiff testified as to various injuries sustained by him during his initial arrest, they were not reported by the plaintiff and did not require medical attention.

[137] The conditions of the plaintiff’s detention were indeed less than ideal, and the plaintiff ought to have been given a meal of which he could partake, even if it was something simple. The plaintiff, however, did not overnight in the police cell.

[138] Although the plaintiff testified that he felt demeaned and degraded by the detention, the limited duration of the plaintiff’s

detention served to ameliorate the extent of the harm suffered by him.

[139] The plaintiff was 57 years of age at the time of the incident, married with two children, both majors.

[140] The plaintiff conceded that the award in Devenish v The Minister of Safety and Security,[26] was high and that an amount of R15 000.00 to R20 000.00 was appropriate in respect of the first defendant and between R75 000.00 and R80 000.00 in respect of the second defendant. Furthermore, that the costs should be award on the High Court scale.

[141] The court in Scott[27] referred to Minister of Safety and Security v Seymour in which a 63 year old man was unlawfully arrested and imprisoned for five days. The SCA found that an appropriate award was the sum of R90 000.00 in respect of general damages for his arrest and imprisonment. In reducing the award from R500 000.00, (made by the court a quo), to R90 000.00, the SCA had regard to the fact that the plaintiff in that matter did not suffer any ‘degradation beyond that which is inherent in being arrested and detained’, a circumstance equally applicable to the plaintiff before me.

[142] The SCA in Scott also referred to Rudolf v Minister of Safety and Security, in which the appellants were arrested and detained for some three nights under extremely unhygienic conditions, far worse than that to which the plaintiff testified.

[143] Regard being had to the circumstances of this matter, together with comparable awards in similar cases (in the SCA and the High Courts), and taking into consideration the decreasing value of money in the interim since the decisions referred to were granted, an appropriate award in my view is the sum of R50 000.00.

[144] The quantum awarded by me falls within the jurisdiction of the Magistrates’ Court. I was referred to various cases in which costs on the High Court scale were found to be justifiable, notwithstanding the reduced quantum, as was submitted by the plaintiff in this matter.

[145] The fact that this matter concerned an unlawful deprivation of liberty, did not, in and of itself, justify an order for costs on the High Court scale. If it did, it would mean that every matter in which this principle was articulated, would justify costs on the High Court scale, a wholly untenable proposition.

[146] I was referred by the plaintiff to the recent unreported judgment[28] of the Full Bench of the Gauteng Division, Pretoria. The order was that the costs therein justified those of the High Court.

The facts in that matter, however, were wholly at variance with those before me and were not comparable.

[147] However, given the legal issues that were relevant in this matter, I am of the view that this matter warrants an order for High Court costs.

[148] By reason of the circumstances aforementioned, I make the following order:

1. The plaintiff’s claim against the first defendant is dismissed with costs;

2. The second defendant is ordered to pay:

2.1. An amount of R50 000.00 to the plaintiff in respect of general damages arising out of the unlawful detention of the plaintiff by the second defendant.

2.2 Interest on the capital amount a tempore morae from the date of judgment until final payment.

2.3. Costs of suit.

_________________________________________________

A A CRUTCHFIELD

ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG.

COUNSEL FOR PLAINTIFF Mr L de Bruin.

INSTRUCTED BY Bessinger Attorneys.

COUNSEL FOR FIRST DEFENDANT Mr C Swanepoel.

INSTRUCTED BY Du Plessis Deheus & Van Wyk.

COUNSEL FOR SECOND DEFENDANT Mr Njana.

INSTRUCTED BY The State Attorney.

DATE OF HEARING 15 – 17 March 2017.

DATE OF JUDGMENT 23 August 2017.

[1] Minister of Safety and Security v Sekhoto and another 2011 (5) SA 367 (SCA) (‘Sekhoto’).

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

[3] Sekhoto para 25.

[4] Id para16.

[5] Id para 28.

[6] Sekhoto para 29 quoting Duncan at 818H-J.

[7] Sekhoto para 34.

[8] Id para 35.

[9] Id paras 34 to 37.

[10] Id para 42.

[11] Id para 43.

[12] Sekhotho para 46.

[13] Id para 49.

[14] R v Weyer 1958 (3) SA 467 (GWLD).

[15] Sekhoto para 43.

[16] Id para 39.

[17] Id para 43.

[18] Sekhoto para 34 quoting Shidiack v Union Government (references omitted.)

[19] SAPS Act 68 of 1995.

[20] Rowan v Minister of Safety and Security NO [2011] 3 All SA 443 (GSJ) at paras 56 to 59 (‘Rowan’).

[21] Mvu v Minister of Safety and Security & Another 2009 (6) SA 82 (GSJ) at [9] (‘Mvu’).

[22] Botha v Minister of Safety and Security & Others/January v Minister of Safety and Security & Others 2012 (1) SACR 305 (ECP) at [29] (‘Botha’).

[23] Mvu para 10; Rowan para 57.

[24] Hofmeyr v Minister of Justice & Another 1992 (3) SA 108 (CPD) 110D.

[25] Minister for Safety and Security v Scott & Another [2014] 3 All SA 306 (SCA) at [42] (footnotes omitted).

[26] Devenish v The Minister of Safety and Security (case no 07151/2013).

[27] Scott para 45.

[28] R A and others v Minister of Police (GDP) Case number A315/2015.