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IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE, GRAHAMSTOWN)

Case No: 680/2009

Date heard: 22-23.9.2010

Date delivered: 30.9.10

Not reportable

In the matter between:

MASIXOLE NELSON FUBESI …................................................................Plaintiff

and

THE MINISTER OF SAFETY & SECURITY …..........................................Defendant

The plaintiff had been arrested without a warrant by a member of the South African Police Service. He was released after having been detained for three days and about 18 hours. He claimed damages for unlawful arrest and detention. The arresting officer had had two conflicting versions before him. One was that the plaintiff had been party to the theft of a firearm and the second was that while the thief of the firearm had handed it to the plaintiff, he had given it back immediately. The arresting officer had not known which version to believe and had decided to arrest the plaintiff. It was held that he had not, on his own evidence formed a reasonable suspicion that the plaintiff had committed a Schedule 1 offence and the arrest and subsequent detention of the plaintiff was unlawful. An award of damages in the amount of R80 000.00 was made as well as costs on the High Court scale.

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JUDGMENT

PLASKET, J:

[1] It is common cause that the plaintiff was arrested without a warrant at about 19h50 on Thursday 7 August 2008 and held in custody until his release at about 14h00 on Monday 11 August 2008. He alleges that his arrest and detention were unlawful and claims damages in the amount of R 150 000.00 from the defendant.

[2] It is also common cause that the plaintiff was arrested by Constable J.P. Smidt in purported reliance on s 40(1)(b) of the Criminal Procedure Act 51 of 1977. That section empowers a policeman to arrest without warrant if he or she forms a reasonable suspicion that the arrestee has committed a Schedule 1 offence.

[3] The issues that arise for decision are: (a) whether Smidt formed a reasonable suspicion that the plaintiff had committed the Schedule 1 offence of theft and, if so, whether he applied his mind properly in exercising his discretion to arrest the plaintiff; (b) if I find the arrest to have been unlawful, the quantum of the plaintiff’s damages; and (c) liability for costs.

[A] THE FACTS

[4] Two brothers, Ayabulela and Mihlali Gxotiwe, gained entry to their mother’s gun safe and stole two firearms that were kept in it. Mrs Gxotiwe, after discovering the theft, elicited admissions from her sons that they had stolen the firearms but they refused to tell her where the firearms were. She took them to the KwaDwesi police station in Port Elizabeth and laid a charge of theft.

[5] This brought Smidt and his colleagues doing crime prevention duties into the picture. They interviewed the brothers who told the policemen that one had given a firearm to a person by the name of Monwabisi Ngqungwana and the other had given the second firearm to the plaintiff.

[6] Smidt and three colleagues went to the plaintiff’s house, accompanied by one of the brothers – Mihlali – who showed them where the plaintiff lived. There are differences in the evidence of the plaintiff and Smidt as to what happened at the house but little turns on these differences. The plaintiff stated that he was arrested at home and taken to the police station but Smidt said that the plaintiff was requested to accompany the policemen to the police station and was only arrested after he had been interviewed.

[7] As it is not in dispute that Smidt was the policeman who took the decision to arrest the plaintiff, I shall proceed on the basis that Smidt did indeed arrest the plaintiff at the police station.

[8] The policemen were also taken by one of the brothers to the house of Ngqungwana who pointed out the firearm that had been given to him. It is not clear from the evidence of Smidt when precisely this happened but that is of little consequence. In the result, the two brothers, Ngqungwana and the plaintiff were all present at the police station.

[9] The plaintiff was interviewed by Smidt and either one or two of his colleagues at the police station. He told Smidt that Mihlali had given him the firearm but he did not want it and had given it back. This was put to Mihlali who said that it was untrue. While Smidt was not certain as to the length of time that the plaintiff had held the firearm, the plaintiff said in his evidence in chief that, at the KwaDwesi police station, he had said that when Mihlali had given him the firearm he had given it straight back. This evidence was not challenged in cross-examination and can be accepted.

[10] At this stage Smidt, unable to decide who was telling the truth, decided to arrest the plaintiff, as well as the other three, so that the investigating officer in due course could decide what to do about the case. They were arrested for the theft of the firearms.

[11] The plaintiff was detained in the cells at the KwaMagxaki police station before being transferred to the cells of the New Brighton Magistrate’s Court on Monday 11 August 2008. He was released at about 14h00 without having appeared in court.

[B] THE ISSUES

(a) Reasonable Suspicion and the Discretionary Power to Arrest

[12] The first issue that I am called upon to decide is whether on the facts outlined above, Smidt formed a reasonable suspicion that the plaintiff had committed the Schedule 1 offence of theft. This is a jurisdictional fact the presence of which activates the discretion power to arrest without a warrant. In other words, when a policeman forms a reasonable suspicion that the arrestee has committed a Schedule 1 offence, he or she is then empowered, in his or her discretion, to arrest.¹ If, on the other hand, the policeman does not form a reasonable suspicion, he or she has no power to arrest.

[13] The test to be applied to whether a suspicion is reasonable is an objective one – the suspicion, to qualify as a reasonable one, must be objectively sustainable.² What that involves was set out as follows by Jones J in Mabona v Minister of Law and Order and others:³

‘Would a reasonable man in the second defendant's position and possessed of the same information have considered that there were good and sufficient grounds for suspecting that the plaintiffs were guilty of conspiracy to commit robbery or possession of stolen property knowing it to have been stolen? It seems to me that in evaluating his information a reasonable man would bear in mind that the section authorises drastic police action. It authorises an arrest on the strength of a suspicion and without the need to swear out a warrant, ie something which otherwise would be an invasion of private rights and personal liberty. The reasonable man will therefore analyse and assess the quality of the information at his disposal critically, and he will not accept it lightly or without checking it where it can be checked. It is only after an examination of this kind that he will allow himself to entertain a suspicion which will justify an arrest. This is not to say that the information at his disposal must be of sufficiently high quality and cogency to engender in him a conviction that the suspect is in fact guilty. The section requires suspicion but not certainty. However, the suspicion must be based upon solid grounds. Otherwise, it will be flighty or arbitrary, and not a reasonable suspicion.’

[14] In assessing the facts at his or her disposal, a policeman must consider with an open mind all of the facts – those that point to guilt and those that point to innocence.⁴ Secondly, in order for the suspicion to be reasonable, the policeman’s suspicion must also go to the mental element of the crime concerned.⁵ Thirdly, as Jones J said in Minister of Safety and Security v Glisson,⁶ the power to arrest without warrant should not be used lightly:

‘I am aware of the need in cases such as this to find a balance between the protection of individual liberty on the one hand and avoidance of unnecessary restriction on the police in the execution of their duties on the other. Where the two are evenly balanced, the scales in a modern constitutional state will fall on the side of individual liberty. The police should not lightly make arrests without warrant. At times – and I think this is such a case – it may be difficult for a policeman to know where to draw the line. If he does not witness criminal conduct himself, he should always be alive to the need for a warrant, which, he knows, would neither be sought nor granted except where there is a sworn statement of the commission of criminal conduct.’

[15] In this case, it is clear to me that Smidt, who impressed me with his honest and forthright evidence on how he took a difficult decision, acted in good faith. That on its own, however, is not good enough. He had two conflicting versions before him. Mihlali’s was to the effect that the plaintiff had taken possession of the stolen firearm and was therefore guilty of theft on the basis of the continuous nature of the offence. The second was the plaintiff’s own exculpatory explanation that Mihlali had given him the firearm but that he had given it straight back. It seems to me, that faced with these two versions, he could not have formed a reasonable suspicion that the plaintiff had committed theft without having obtained further information to point to the plaintiff’s suspected guilt.⁷ He testified that he did not know whether to believe Mihlali or the plaintiff but decided, nonetheless, to arrest the plaintiff. On his own evidence, in these circumstances, he could not and did not form a reasonable suspicion.

[16] I am accordingly of the view that the defendant has not discharged the onus that rests on it to justify the plaintiff’s arrest and subsequent detention. In the light of this finding, it is unnecessary for me to consider whether Smidt exercised his discretionary power regularly or not: as the jurisdictional fact was absent, he never had the power to arrest the plaintiff at all.

(b) Quantum

[17] The factors that are to be taken into account in the determination of quantum in cases involving unlawful arrest and detention are well-known. They were broadly stated by Jones J in Olgar v Minister of Safety and Security:⁸

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

[18] Broadly similar cases serve as a rough guide but it must be borne in mind that the facts of each case vary considerably and so it is almost impossible to find cases on all fours with the case under consideration. I have, however, taken into account the awards made in a number of cases involving unlawful arrest and detention.

[19] The plaintiff was 18 years old when he was arrested. He was a student in grade 8. He had never been arrested or detained before and testified that he was very scared when he was placed in a crowded cell. He was given a mattress and a blanket. He spent from about 19h50 on Thurday 7 August 2008 until about 14h00 on Monday 11 August 2008 in custody. He was thus detained for three days and about 18 hours. He says that his arrest and detention caused him humiliation because his school friends said, after his release, that he was a thief. He complained that he was denied access to medication but Smidt said that if the plaintiff had told the police that he required medication from home, they would as a matter of course, have collected the medication for him. I do not intend dealing with this issue further because nothing turns on it: the plaintiff does not appear to have suffered any adverse consequences if, indeed, he had been denied access to his medication.

[20] When I consider and weigh the factors that I have listed above, as well as the fact that Smidt did not act with malice or in bad faith, and I consider the awards made in other cases involving unlawful arrests and detention,⁹ I am of the view that an award of R80 000.00 is reasonable.

(c) Costs

[21] It was argued by Mr Cole, who appeared for the plaintiff that even if I make an award within the jurisdiction of the magistrate’s court, I should award costs on the High Court scale. Mr Sandi, who appeared for the defendant, argued that there is no reason to award costs on the High Court scale.

[22] In my view, however, an award of costs in favour of the plaintiff on a High Court scale is justified. In Olivier v Minister of Safety and Security and another,¹⁰ in which an award of R50 000.00 was made in respect of the plaintiff’s unlawful arrest and detention, Horn J nonetheless awarded costs on the High Court scale. His reasoning appears from the following passage:¹¹

‘When a court awards costs it exercises a discretion. The facts and principles of law in this matter were not uncomplicated. Quantum, more often than not, is a thorny question, the outcome of which is not always easy to predict. I do not believe that the plaintiff should be penalised with costs for choosing to litigate in this court, particularly having regard to the circumstances of this case.’

[23] While I decided the merits on one ground only – the absence of the necessary jurisdictional fact – other grounds were canvassed in the evidence and in argument, rendering the facts and the application of the legal principles to them more complicated than this judgment on its own may show. As Horn J said in the passage quoted above, the issue of quantum in a case such as this, where there is no ‘empirical measure’ for a plaintiff’s loss and the decided cases show little in the way of a pattern,¹² has its own difficulties that justify a flexible approach to the question of costs. In these circumstances, I am of the view that the plaintiff is entitled to costs on the High Court scale.

[C] THE ORDER

[24] The following order is made.

(a) The defendant is directed to pay the plaintiff R80 000.00 as damages in respect of his unlawful arrest and detention, as well as interest on this amount at the legal rate from a date 14 days after the date of this order to the date of final payment.

(b) The defendant is directed to pay the plaintiff’s costs of suit on the High Court scale, together with interest thereon at the legal rate from a date 14 days after allocatur to the date of final payment.

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C. PLASKET

JUDGE OF THE HIGH COURT

Appearances:

For the plaintiff: Mr S. Cole instructed by Wheeldon, Rushmere and Cole

For the defendant: Mr N. Sandi instructed by N.N Dullabh and Co.

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