Ramphal v Minister of Safety and Security (CA203/2007) [2008] ZAECHC 10; 2009 (1) SACR 211 (E) (18 February 2008)

8

IN THE HIGH COURT OF

SOUTH AFRICA

(EASTERN CAPE DIVISION)

CASE NO: CA203/2007

DATE HEARD: 8/2/08

DATE DELIVERED: 18/2/08

NOT REPORTABLE

In the matter between:

RAMRAJ RAMPHAL APPELLANT

and

MINISTER OF SAFETY AND

SECURITY RESPONDENT

______________

The appellant was arrested without a warrant pursuant to an instruction to this effect being issued by a public prosecutor to the arresting officer. On appeal, the court held that the arrest was unlawful because the public prosecutor had no lawful authority to instruct a policeman to make an arrest, the policeman had failed to exercise the discretion vested in him, and had hence failed to apply his mind, because he had believed he was duty-bound to give effect to the public prosecutor’s instruction, and he had acted for an improper purpose, namely to compel the appellant to make a warning statement, and thus abandon the right to silence that the appellant had previously invoked. Damages in the amount of R35 000.00 were awarded to the appellant.

JUDGMENT

PLASKET J

[1] The South African Constitution is founded, inter alia, on the rule of law, the achievement of human dignity and the advancement of human rights and freedoms.1 This appeal is directly concerned with these values.

[2] The appellant, Mr Ramraj Ramphal, was arrested without a warrant by Constable Butana Ndeleni on 25 November 2005. He spent that night in custody and was released the following morning. He sued the Minister of Safety and Security, in the Magistrate’s Court, Port Elizabeth, for damages arising out of his arrest but his claim was dismissed with costs by the magistrate who presided in the trial.

[3] The material facts are not in dispute. Ramphal was a suspect in a crimen injuria case that Ndeleni was investigating. On 16 November 2005, he went to Ramphal’s shop to take a warning statement from him. Ramphal refused to make a statement and, after a heated exchange between Ndeleni and Ramphal, Ndeleni left without the warning statement.

[4] He sought advice from his superiors as to what he should do next. He was directed to Ms Tanya Swiegelaar, an Advanced District Court Prosecutor at the Port Elizabeth Magistrate’s Court. She purported to issue an instruction to Ndeleni to ‘go back to the plaintiff’s place of employment; to arrest the plaintiff; to take him to Humewood police station; process him and release him on a warning for the next court date’. She wrote in Ndeleni’s investigation diary: ‘Please arrest the accused and bring him to court.’

[5] Two days later Ndeleni went to Ramphal’s shop and arrested him. When he made the arrest, he told Ramphal that he was being arrested ‘so that he could come and give his explanation by himself’. He took Ramphal to Humewood police station, booked him in, and went to Grahamstown. The next morning when he had returned to Port Elizabeth, he told Ramphal’s attorney that if Ramphal ‘could co-operate with me I could see that he is free of charge’. By this he apparently meant that he would release Ramphal on warning. He proceeded to say that he told Ramphal that he had spoken to his attorney and that ‘[h]e must give me his statement and allow me to take his fingerprints’. Ramphal was then released, having made a warning statement.

[6] It is clear from the evidence of Ndeleni that he understood Swiegelaar to be issuing an instruction to him to arrest Ramphal. He reported to his superiors that he was instructed to arrest Ramphal and, with reference to 25 November 2005, he said that this was ‘when I had to go ahead with the instruction I got from the prosecutor’. When he was cross-examined, he was asked for the source of a policeman’s authority to arrest. He answered: ‘A prosecutor can instruct you to go and arrest somebody but even if a crime is being committed in your presence, without any authorisation you can arrest a person’.

[7] The Minister’s plea was originally to the effect that Ndeleni arrested Ramphal lawfully ‘pursuant to [the] provisions of Act 116 of 1998’ – the Domestic Violence Act. Not surprisingly, this aspect of the plea was amended at the commencement of the trial, but it was amended to read that the ‘defendant avers that plaintiff was lawfully arrested pursuant to the instructions form the senior prosecutor to wit Tania [Swiegelaar]’.

[8] The magistrate found on these facts that Ramphal’s arrest, although not authorised by any statutory provisions was reasonable in the circumstances. He accordingly dismissed Ramphal’s claim with costs.

[9] The magistrate erred in so doing. As I stated at the outset of this judgment our constitutional order is founded on the rule of law. That means, at least, that every exercise of public power must, in order to be valid, be authorised by law.2 No provision of s 40(1) of the Criminal Procedure Act 51 of 1977, or of any other statute, authorises the arrest of a person on the instruction of a public prosecutor. The arrest of Ramphal was invalid, and hence unlawful, on this account and whether Ndeleni acted reasonably in the circumstances is entirely irrelevant.

[10] Ramphal’s arrest is invalid on account of two further grounds as well. The first is that, as Ndeleni was under the impression that he was duty-bound to carry out Swiegelaar’s instruction, he failed to appreciate that he had a discretion.3 His failure to appreciate that he had a discretion meant that when he arrested Ramphal he failed to apply his mind and acted irregularly.4

[11] Furthermore, it is clear from the evidence that Ndeleni’s purpose in arresting Ramphal was not to secure his attendance in court, but to force him to make a warning statement. In other words, the purpose of the arrest was to force Ramphal to abandon the right to silence – enshrined as a fundamental right in s 35(3)(h) of the Constitution – which right he had asserted in unequivocal terms on 16 November 2005. This was an improper purpose, with the consequence that the arrest was invalid on this account too.5

[12] From the above, it is evident that Ramphal’s arrest was unlawful and that the appeal must succeed. As stated above, evidence was led by Ramphal concerning quantum but, in the light of the magistrate’s conclusion on the merits, he obviously never dealt with that issue.

[13] Ramphal’s evidence relevant to quantum was not disputed in any significant way and no findings on credibility come into play. This court is, consequently, in as good a position to determine quantum as the court below was. It would, in these circumstances, serve no useful purpose to remit the matter for quantum to be determined by the magistrate and this course is not contended for by the respondent.

[14] Counsel who appeared in the appeal were agreed that the quantum of Ramphal’s damages was in the region of R30 000.00. The evidence upon which this ball-park figure was based is the following.

[15] Ramphal, a 54 year old shop keeper, testified that he was arrested in his shop, in the presence of members of his family and customers. He was placed in the back of a police van and taken to Humewood police station. He was taken to the charge office where he was booked in before being taken to a cell. He was detained with two other people. Of the conditions in the cell, Ramphal said that there ‘were no facilities’ but elaborated no further on what he meant by this. It was cold, which prompted him to ask for his jacket, but this request was refused. He also asked for his medication (for a heart problem and for diabetes) but it is not stated whether he was given his medicine or not.

[16] He was supplied with a blanket, the condition of which he described as ‘terrible, disgusting’. He said that the ablution facilities were open to the view of everyone in the cell. He was given no water or food on the night of 25 November 2005, although he received tea the next morning. He was not able to sleep that night but whether this was due to the trauma of his circumstances or some other cause was not stated.

[17] Ramphal was arrested at about 15h20 on 25 November 2005. He was released at about 10h30 on 26 November 2005. He thus spent 19 hours and 10 minutes in custody. He said of this experience that he was ‘really traumatised’ and that his ‘dignity was lost’. Although he stated that ‘it took a big toll on my health’ no detail about this was given. This was the first time that he had been arrested. The experience, he said, also had an impact on his family: it ‘traumatised them because they couldn’t understand what was the law about’.

[18] In Ochse v King William’s Town Municipality6 Van Rensburg J stated that the ‘right of an individual to personal freedom is a right which has always been jealously guarded by our courts and our law has always regarded the deprivation of personal liberty as a serious injury’. In Thandani v Minister of Law and Order7 he stated that in ‘considering quantum sight must not be lost of the fact that the liberty of the individual is one of the fundamental rights of a man in a free society which should be jealously guarded at all times and there is a duty on our Courts to preserve this right against infringement’. These views hold good today in an era in which freedom and human dignity have been elevated to entrenched justifiable fundamental rights.8

[19] I have considered a number of comparable reported cases,9 as well as the unreported decision in this court of Provincial Commissioner, Eastern Cape and others v Geduld.10 I take into account the factors that I have recorded above concerning the duration, nature and effect of Ramphal’s unlawful arrest. I note, however, that the evidence led on this issue was often vague and incomplete. This has affected the result as, often, important issues have either not been dealt with or have been left unanswered.

[20] I concluded that, in the exercise of the wide, equitable discretion with which I am vested, a fair estimate of Ramphal’s damages is the amount of R35 000.00.

[21] One final, important, issue must be dealt with before turning to the order. It is the fact that this case has brought to the fore an alarming degree of ignorance on the part of Ndeleni and Swiegelaar of their powers – and more importantly, the limits of their powers. This is all the more disturbing because this case is concerned with the power to deprive people of their freedom. I trust that the State Attorney dealing with this matter, when he or she receives this judgment, will take up the problem that I have highlighted with both the Ministry of Safety and Security and the Ministry of Justice and Constitutional Development with a view to them providing proper training for their staff -- or of enhancing any training that may already be provided -- on their constitutional obligations to ‘respect, protect, promote and fulfil the rights in the Bill of Rights’.11

[22] In conclusion, the following order is made:

The appeal succeeds, with costs.

The order made by the magistrate in the court below is substituted with the following order:

‘The defendant is directed to pay the plaintiff:

the sum of R35 000.00 as damages for his unlawful arrest;

interest on this amount at the legal rate a tempore morae; and

costs of suit.’

_______

C. PLASKET

JUDGE

OF THE HIGH COURT

I agree:

____

D. VAN ZYL

APPEARANCES:

For the appellant: Mr P Jooste, instructed by Goldberg and Victor Inc, Port Elizabeth, and Netteltons, Grahamstown.

For the respondent: Mr J Huisamen and Mr NW Nobatana, instructed by the State Attorney, Port Elizabeth, and Mlonyeni and Lesele, Grahamstown.

1 Constitution, s 1.

2 Fedsure Life Assurance Ltd and others v Greater Johannesburg Transitional Metropolitan Council and others [1998] ZACC 17; 1999 (1) SA 374 (CC); 1998 (12) BCLR 1458 (CC), para 58.

3 See Duncan v Minister of Law and Order 1986 (2) SA 805 (A), 818H-I: ‘If the jurisdictional requirements are satisfied, the peace officer may invoke the power conferred by the subsection, ie he may arrest the suspect. In other words, he then has a discretion as to whether or not to exercise that power.’

4 See Union Government (Minister of Mines and Industries) v Union Steel Corporation (South Africa) Ltd 1928 AD 220, 234-235 in which Stratford JA held that if an official vested with a discretionary power ‘fails to appreciate the nature of that discretion … he cannot and does not properly exercise that discretion’. See too Vokwana v National Transport Commission and others 1984 (2) SA 245 (TK), 251F-G.

5 See Van Eck NO and van Rensburg NO v Etna Stores 1947 (2) SA 984 (A); Rikhoto v East Rand Administration Board and another 1983 (4) SA 278 (W); Wheeler and others v Leicester City Council [1985] AC 1054 (HL).

6 1990 (2) SA 855 (E), 860G.

7 1991 (1) SA 702 (E), 707B.

8 See Minister of Safety and Security v Seymour 2006 (6) SA 320 (SCA), para 14.

9 A most useful collection of and analysis of the cases is to be found in Seria v Minister of Safety and Security and others 2005 (5) SA 130 (C), as well as in Minister of Safety and Security v Seymour (note 8).

10 ECD 27 November 2003 (case no. CA 458/08) unreported.

11 Constitution, s 7(2).