Nkosi v Minister of Police and Another (51083/2015) [2017] ZAGPPHC 558 (2 August 2017)

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

IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

Case number: 51083/2015

Date: 23/5/2017

In the matter between:

SIZWE NKOSI PLAINTIFF

And

THE MINISTER OF POLICE FIRST

DEFENDANT

THE NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS SECOND DEFENDANT

JUDGMENT

PRETORIUS J,

(1) The plaintiff instituted action against the defendant for damages as a result of unlawful arrest and detention. The plaintiff is an adult male residing at [...] M. S., Zola North, Soweto.

(2) The first defendant is the Minister of Police.

(3) The second defendant is the National Commissioner of the South African Police Services.

ISSUES:

(4) It is common cause that on 2 October 2014 the plaintiff was arrested without a warrant by unknown members of the SAPS, who, at all times, acted in the course and scope of their employment. The plaintiff was arrested on a charge of fraud. He was detained at the Pretoria North Police Station on 2 October 2014 and only released from detention on 6 October 2014. He did not appear before a court of law.

(5) The defendant disputes that the arrest was unlawful, unjust and without reasonable cause. It is further disputed that the plaintiff's

wife had paid a policeman R2 500 to obtain a lawyer for the plaintiff.

(6) The defendant has the onus of proof to prove that the arrest was lawful. Section 40(1)(b) of the Criminal Procedure Act[1] provides:

"40 Arrest by peace officer without warrant

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

(b) whom he reasonably suspects of having committed an offence referred to in Schedule 1, other than the offence of escaping from lawful custody; ..."

(7) The defendant called Detective Sergeant Maila as the first witness.

His evidence was that at the time he was a detective constable in the South African Police Service, stationed at Pretoria North. On 20 September 2014 he drove to the plaintiffs home, who was not at home at the time. He went to the plaintiffs house as the plaintiff was a suspect in a fraud case. The plaintiffs parents provided the plaintiffs cellphone number to him. Sergeant Maila phoned the

plaintiff and the plaintiff furnished his work address.

(8) On 8 June 2014 the prosecutor gave an instruction to Detective Sergeant Maila to “obtain warning statements only of suspects and submit for decision when investigation is complete”. Detective Sergeant Maila waited from 20 September 2014 to 2 October 2014 to arrest the plaintiff at his work. When he confronted the plaintiff and told him that his identity number linked him to a charge of fraud, the plaintiff immediately told Detective Sergeant Maila that his identity document had been taken by the police on a previous occasion and never returned to him.

(9) The plaintiff acknowledged that he knew that his identity document was used by another person as he had received numerous calls from retailers in regards to unpaid accounts. He even deposed to an affidavit which he had sent to Woolworths explaining that somebody

else was using his identity document. He testified that he had shown this document to Detective Sergeant Maila.

(10) Detective Sergeant Maila was accompanied by three other members of the South African Police Services, when he fetched the plaintiff from his workplace. At the police station the plaintiff was arrested on a charge of fraud, fingerprinted and placed in a cell. This was on the Thursday, 2 October 2014. He was not taken to court on 3 October 2014, but was detained over the weekend in the police cells. He was taken to court on Monday, 6 October 2014, but was only released late on Monday afternoon, without appearing in court, as the prosecutor decided not to prosecute the plaintiff and he was released.

(11) The plaintiff's wife, Ms Nkosi, testified that she was called by the plaintiff and he told her he was being taken to the police station to make a statement. Thereafter he called her to say he had been arrested for fraud. On the Saturday, 4 October 2014, she went to the police station and saw the plaintiff. On the Monday, 6 October Detective Sergeant Maila phoned her and told her to organize a lawyer for the plaintiff. He met her outside the court and said she had to pay R2 500 for him to obtain a lawyer. She went to the bank and withdrew the money. She paid it over to Sergeant Maila. She waited outside the court building and later that afternoon her husband was released. She called Detective Sergeant Maila and told him that her husband had been released. She made a good impression in court, answered all the questions without hesitation and her evidence is accepted.

(12) Mr Nkosi, the plaintiffs evidence is that he is 46 years old, he is married with three children. He has been employed as a despatch supervisor for 12 years.

(13) He testified that Detective Sergeant Maila had phoned him on 20 September 2014 and came to his place of employment on 2 October 2014, two weeks after the first phone call. He was then taken to the police station to make a statement, but was arrested at the police station and detained in the police cells. He explained that in 2011, when the police had taken his identity document, he tried to open a case at the Dobsonville police station, but was threatened with arrest should he persist in opening a case against the police. He has been without his identity document since 2011.

(14) He has had problems with retailers threatening him with legal steps due to outstanding accounts. He explained that these were not his accounts. He even went so far as to depose to an affidavit, informing Woolworths that his identity document had been stolen and that he had no account with Woolworths and owed no money to Woolworths. All this was explained to Detective Sergeant Maila, but to no avail.

(15) After his arrest he was put in a cell with three other people. The blankets in the cell were filthy. He had difficulty in sleeping as he was concerned as to why he had been arrested. During the night the number of people in the cell grew to 12. He did not eat any of the bread, as the place was filthy. He was denied a change of clothes and spent the entire time of his detention in the same clothes although his wife had brought clean clothes.

(16) On Monday, 6 October 2014, he was taken to court, where he waited all day in the cells until everybody had gone. A court worker came and told him to go as there was no case against him. When confronted by a cellphone number by counsel for the defence he denied ever having a contract with MTN. He had always had a cellphone from Vodacom.

(17) He was badly affected by his arrest and detention and still has nightmares about it, as he had never been arrested before. His wife and children were badly affected by the incident. His youngest daughter was in tears.

REASONABLE SUSPICION:

(18) I am aware that the court must approach the question as to whether the suspicion of Detective Sergeant Maila was reasonable,

objectively. I must determine whether the suspicion existed that a Schedule 1 offence had been committed by the plaintiff.

(19) It is trite that an arrest and detention, to the extent that it deprives the individual of liberty and freedom, is prima facie wrongful and the arrestor has to justify the lawfulness of the arrest and detention. See Lombo v African National Congress[2].

(20) It is common cause that the plaintiff was arrested without a warrant of arrest. In Duncan v Minister of Law and Order[3] Van Heerden JA

held:

"The so-called jurisdictional facts which must exist before the power conferred by s 40 (1) (b) of the present Act may

be invoked, are as follows:

(1) The arrestor must be a peace officer.

(2) He must entertain a suspicion.

(3) It must be a suspicion that the arrestee committed an offence referred to in Schedule 1 to the Act (other than one particular offence).

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

In the present matter it is the fourth jurisdictional fact that has to be considered.

(21) In dispute in this matter is whether Detective Sergeant Maila could reasonably have suspected that a Schedule 1 offence had been committed and that his suspicion rested on reasonable grounds. A certain Mr van Zyl laid a complaint at the police that he had been defrauded in the amount of R31 350 by persons calling him and informing him that he had won R195 000. He was called several times and told to deposit certain amounts into a Capitec Bank account, which he did. The calls were made respectively

from cellphone number [0...] (sic) and [0...] . According to Mr van Zyl Mr Frank's number was [0...] and

Mr Peters number was [0...] (sic).

(22) Detective Sergeant Maila contacted MTN to ascertain to whom the cellphone numbers belong. According to him, he obtained a document

from MTN which indicated the name of the plaintiff. The only information on this document is the customer name; the identity number, and the physical address. There is no identification whatsoever on this document that indicates a cellphone number.

There is no affidavit from an employee from MTN explaining what this document is. It contained the plaintiffs name, identity number and address - nothing more. According to Detective Sergeant Maila this was the document which caused him to suspect the plaintiff.

(23) This suspicion must be satisfied on an objective basis. Detective Sergeant Maila was of the opinion that the document obtained from MTN inextricably linked the plaintiff to the crime committed. There is no affidavit from MTN explaining what the document is that had been obtained from MTN and how it links the plaintiff to the cellphone. The defendant requested the court to make certain deductions in reference to the impugned document.

(24) There is no identification on this document as to what it is and what it relates to. Detective Sergeant Maila did not testify as to the essential and preliminary investigation that led him to have a reasonable suspicion. A policeman who does not substantiate his suspicion, where he is able to do so, does not act reasonably.

(25) According to Detective Sergeant Maila the only evidencehe relied on was the document from MTN. From the outset the plaintiff maintained that it was not his phone that was used in the fraud. Detective Sergeant Maila called the plaintiff on numbers obtained from the plaintiffs parents, which were Vodacom numbers.

(26) Detective Sergeant Maila's evidence was not that the plaintiff was not arrested at his workplace as testified by the plaintiff.

Furthermore his evidence was that the charge against the plaintiff was withdrawn in court when the plaintiff appeared in court, contrary to the plaintiff's evidence that he did not appear in court, but was released from the court cells. Detective Sergeant Maila furthermore testified that the plaintiff had called him to express his happiness at being released, contrary to the plaintiff's evidence.

(27) As the onus rests on the defendant to prove a lawful arrest it would have been incumbent on the defence to call the three police officers who had accompanied Detective Sergeant Maila when he went to fetch the plaintiff. Furthermore, it would have been easy to prove that the plaintiff had in fact appeared in court - this was not done. The three police officers could have testified as to the assertion by the plaintiff that he had shown Detective Sergeant Mailia the affidavit addressed to Woolworths, which Detective Sergeant Mailia had denied.

(28) If I have regard to the evidence before me and apply the principles as set out in Mawu and Another v Minister of Police[4], then I cannot find that Detective Sergeant Maila was in possession of information which,objectively viewed, would lead a reasonable person in his position to form a reasonable suspicion that the plaintiff had committed the crime of fraud. This is even more so where the State Prosecutor had explicitly instructed Detective Sergeant Maila to obtain warning statements from the suspects only to enable the prosecutor to make a decision. There was absolutely no evidence linking the plaintiff to the crime of fraud.

(29) In these circumstances it was unreasonable of Detective Sergeant Maila to arrest the plaintiff, as a reasonable man in these

circumstances would not have formed a reasonable suspicion that the plaintiff had committed a crime having regard to the scant or no evidence at Detective Sergeant Maila's disposal. I therefor find that the plaintiff was unlawfully and wrongfully arrested and detained.

QUANTUM:

(30) In the Minister of Safety and Security v Seymour[5] the Supreme Court of Appeal dealt with quantum. Nugent JA held at paragraph 14:

"The real import of the Constitution has not been to enhance the inherent value of liberty, which has been constant, albeit that it was systematically undermined, but rather to ensure that those incursions upon it will not recur."

(31) Each case has to be decided on its own merits. Comparable cases can only afford guidance, but should not be slavishly followed. It is so that money cannot recompense a person, who had been unlawfully arrested, for such a terrible experience. In Seymour[6] at paragraph 20 the Court held:

"Money can never be more than a crude solatium for the deprivation of what in truth can never be restored and there is no empirical measure for the loss. The awards I have referred to reflect no discernible pattern other than that our courts are not extravagant in compensating the loss. It needs also to be kept in mind when making such awards that there are many legitimate calls upon the public purse to ensure that other rights that are no less important also receive protection."

This finding holds even more true today having regard to the condition of the "public purse".

(32) In this instance the plaintiff was taken from his place of employment on 2 October 2014, arrested and placed in a filthy, overcrowded

police cell from 2 October 2014 until the morning of 6 October 2014. Although his wife had supplied him with clean clothes, he was not allowed to change his clothing and stayed as he was from his time of arrest on the Thursday, until the Monday afternoon when he was released. The food in the cells was so bad that he did not eat it.

(33) There was no indication as to why he was not brought before court on the Friday, but had to spend the weekend in the cells. He was further humiliated when he was handcuffed and put into the back of a police van when he was taken to court. He still has nightmares, his wife and children were severely traumatised by his arrest. He had never been arrested or detained before and has a clean record.

(34) In these circumstances, having regard thereto that the plaintiff spend four nights and four days in custody, I am of the opinion that an award of R90 000 will be appropriate.

(35) In the result I make the following order:

1. The first defendant is ordered to pay to the plaintiff the sum of R90 000 in damages in respect of his unlawful arrest and detention;

2. The first defendant is to pay the plaintiff's costs of suit.

_______________________

Judge C Pretorious

Case number

: 51083/2015

Matter heard on : 2 and 3 August 2017

For the Plaintiff : Adv Cothill

Instructed by

: Spruyt, Lamprecht & Du Preez Attorneys

For the Defendant : Adv Ngoetjane

Instructed by

: State Attorney

Date of Judgment : 23 August 2017

[1] Act 51 of 1977

[2] 2002 ( 5 ) SA 668 (SCA) at paragraph 32

[3] 1986 (2) SA 805 (AD) at p 818 G-H

[4] 2015 (2) SACR 14 (WCC) at paragraph 31

[5] [2007]1 All SA 558 (SCA)

[6] Supra