IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE  -  GRAHAMSTOWN)

								CASE NO:  3587/09
								DATE HEARD:  17&18/11/11
								DATE DELIVERED: 01/03/12

In the matter between

NKOSIYAWO HENDERSON KOTSWANA		PLAINTIFF

and

THE MINISTER OF SAFETY AND SECURITY		DEFENDANT

JUDGMENT

ROBERSON J:-

[1]   In this action, the plaintiff claims damages for wrongful, alternatively malicious, arrest and detention, and for malicious prosecution.

[2]   It is common cause that on 19 February 2009 the plaintiff was arrested without a warrant by Inspector Lawrence Els, acting in the course and scope of his employment with the defendant, on suspicion of having committed theft and fraud.  The arrest followed a complaint by his former employer, FreezerLines, to the police, that a diesel card had been stolen from their premises and fraudulently used to purchase diesel at Imsor Motors, Korsten, Port Elizabeth.  The card purchase slip reflected that on 4 February 2009 at 15h07, diesel to the value of R371.35 had been purchased for a vehicle with registration number DGJ 686 EC (the Isuzu), which was one of FreezerLines’ vehicles.  The kilometre reading of the vehicle was reflected on the slip as 279340.  Following his arrest, which was on a Thursday, the plaintiff was detained in the police cells until Monday 23 February 2009, on which date he appeared in court and was released on warning.  The plaintiff was charged with theft and the matter was postponed from time to time until the charge was withdrawn by the prosecutor on 27 August 2009.

[3]   The defendant pleaded that the arrest was justified in terms of s 40 (1) (b) of the Criminal Procedure Act 51 of 1977 (the Act), in that the arresting officer had a reasonable suspicion that the plaintiff had committed an offence referred to in Schedule 1 of the Act.  The defendant admitted that the prosecution had terminated in favour of the plaintiff, but denied the other elements of malicious prosecution.

[4]   The plaintiff testified.  At the time of his arrest, he had been employed by FreezerLines since about July 2008 as a driver.  FreezerLines’ business involved deliveries to major supermarkets and some small businesses.  On 4 February 2009 he drove a vehicle with registration number DNM 252 EC (the Iveco) and it was filled up with diesel at FreezerLines’ premises.  He completed a trip sheet of his various deliveries that day which reflected that he was at Shoprite Checkers in Stanford Square (Shoprite), from 15h00 to 15h21.  Shoprite is across the street from two garages, but he did not know which one was Imsor Motors.  He had gone to Shoprite to collect receipts for goods which he had delivered earlier.  In order to collect the receipts he had to enter the receiving office of the Shoprite premises.  While he did so, his two assistants known as Oubaas and Martin, waited with the vehicle.  The trip sheet also reflected that the departure kilometre reading of the Iveco was 279262 and the return reading was 279350. The plaintiff had recorded these readings.  He denied that he wrote down the kilometre reading of the Iveco before he left Oubaas and Martin at the vehicle.  He had a good working relationship with both of them. 

[5]   The week before 19 February 2009 he was asked by one Arnold of FreezerLines about a diesel card which had gone missing and was told that he was suspected of taking the card.  He denied that he had taken it.  Other drivers were also asked about the missing card.  The plaintiff explained that drivers were issued with a diesel card when going out for a delivery or when there was no diesel on the premises. The card related to a specific vehicle and a card for a specific vehicle was not to be used for another vehicle.  The cards were issued by a manager who was available, and he had been told that the cards were kept in a safe.   He had access to the manager’s office if he was called there.

[6]   On 19 February 2009 one of the managers at FreezerLines, Rory Schoeman, telephoned him and told him to return to the business premises.  There he found Schoeman, Arnold, and three other persons who were police officers.  Schoeman told him that he had been called in connection with the missing diesel card and he said he had no knowledge of the card.  He was told that his route on 4 February 2009 was significant and his various stops were on that route, and that he had to know about the card.  He was shown the diesel sale slip and said he had not signed it.  The police told him that they were taking him to Mount Road police station and were going to show him video footage taken at the garage, in which he appeared.  His fellow employees witnessed him being taken to the police van.  At the police station these police officers told him that they were going to fetch video footage but they did not return.  He was never shown video footage.  He was left in the charge of student police officers, one of whom told him that he had received orders to lock him up.  He was taken to a cell in which there were five or six other persons.  The number of persons in the cell thereafter increased.  The single toilet in the cell did not flush properly.  He was supplied with a blanket which smelled of sweat and urine, as well as a sponge mattress.  He was afraid in the cell because on his arrival he was asked which prison gang (he referred to the 26’s and the 28’s) he belonged to.  He and those who were not gang members were searched by other prisoners. 

[7]   On Sunday 22 February 2009 detectives charged him and took his fingerprints, and asked if he wanted to make a statement.  He preferred to make a statement in court.  On Monday 23 February 2009 he was taken to court and kept in the holding cells with twenty to twenty five other persons.  From the time he was put in the police cell until the time he was taken to court, he had not been taken out of the police cell. 

[8]   He was dismissed from his employment as a result of the card incident and tried to challenge his dismissal but his case was dismissed because he arrived late at the CCMA. 

[9]   Lawrence Els was the police officer who arrested the plaintiff.  He testified that on 19 February 2009 he received a complaint via the police radio and proceeded to FreezerLines’ premises.  There he met Schoeman, who showed him the Imsor Motors diesel purchase slip and the plaintiff’s trip sheet for 4 February 2009.  He was also told that the diesel card had been stolen.  The documentation pointed towards the plaintiff.  After speaking to Schoeman and taking a statement from him, he asked the plaintiff if he knew anything about the stolen card and if he had been involved in the use of the card at Imsor Motors.  The plaintiff denied involvement.  

[10]  Schoeman’s statement reflected that he had received the diesel slip on 9 February 2009 and it was not possible that diesel could have been put into the Isuzu because it was a new vehicle and the card had last been used on 29 January 2009 when the vehicle went to East London.  It had been discovered that the card had been stolen at FreezerLines.  On making enquiries at Imsor Motors he was informed by the manager and petrol attendant that an African male wearing a shirt with the FreezerLines name on it had “put petrol in” (he did not say in what vehicle).  On checking the drivers’ trip sheets he noticed that on 4 February 2009 the Iveco, driven by the plaintiff, was in Korsten.   When he compared the time the Iveco was in the area and the time the diesel was purchased, as well as the kilometre reading on the trip sheet and the diesel purchase slip, it was his view that the plaintiff had committed fraud with the stolen card.  He questioned Oubaas and Martin, who were white males, and Oubaas said that when they stopped at Shoprite, the plaintiff had written the kilometre reading of the vehicle on his hand and had disappeared for about twenty minutes, and that Imsor Motors is opposite Shoprite.  Schoeman suspected that the plaintiff had stolen the card because only the drivers were allowed to enter the offices at FreezerLines. 

[11]   In addition to his statement, Schoeman told Els that managers had access to the office.  Els thought that Schoeman had mentioned to him that on 4 February 2009 the Isuzu was in Walmer.  Els accepted that no diesel had been put into the Isuzu on 4 February 2009 and that the card for the Isuzu had been fraudulently used.  Els did not interview Oubaas and Martin because they were not available.  He did not interview anyone at Imsor Motors because of the time span.  He conducted no investigations at Shoprite.    

[12]  Els informed the plaintiff that there was enough proof that he was involved in fraud and that he would be detained for forty eight hours.  He arrested the plaintiff because of the information given to him by Schoeman.  The plaintiff was taken to Mount Road police station and detained in the cells.  Els knew nothing about video footage and was of the view that because of the length of time since the diesel was purchased there would not have been footage available.  The docket would have been taken to the crime office and allocated to a detective. 

[13]  Schoeman testified that he was formerly the warehouse manager at FreezerLines and the plaintiff was under his supervision.  He was the person who made the complaint against the plaintiff to the police, after investigations caused the plaintiff to be suspected.  When he received the diesel purchase slip he realised that the vehicle involved could not have been the Isuzu because of the high kilometre reading.  Further investigation led to the discovery that the diesel card for the Isuzu had gone missing on 4 February 2009.  The satellite tracking reports for that day showed that the Iveco was the only FreezerLines vehicle in the vicinity of Imsor Motors.  The Isuzu was in Walmer.  Oubaas and Martin were asked what had happened that day and said that the plaintiff had written numbers on his hand and had gone in the direction of Imsor Motors, and was away for about twenty minutes.  He contacted Imsor Motors and was informed that an African male with the FreezerLines logo on the back of his jacket had been there.  FreezerLines drivers wore jackets with the logo but the assistants did not.

WRONGFUL ARREST AND DETENTION
[14]  The information on which Els formed his suspicion that the plaintiff had committed fraud and theft can be summed up as follows: 
1.	A diesel card for the Isuzu had gone missing and had been used to purchase diesel for a vehicle which was not the Isuzu.
2.	Drivers and managers had access to the office where the diesel cards were kept.
3.	According to FreezerLines’ tracking system the only FreezerLines vehicle in the vicinity of Imsor Motors at the time the diesel was purchased was the Iveco.
4.	Imsor Motors is across the road from the Shoprite branch where according to the trip sheet the plaintiff had been.
5.	The kilometre reading on the diesel purchase slip was very close to the kilometre reading of the Iveco.
6.	Oubaas had told Schoeman that the plaintiff had written numbers on his hand and been absent for twenty minutes.
7.	The manager and petrol attendant at Imsor Motors had informed Schoeman that the person who purchased the diesel was an African male wearing a jacket with the Freezerlines logo on it. 

[15]  In Mabona and Another v Minister of Law and Order and Others 1988 (2) SA 654 (SE) at 658E-H, Jones J, in dealing with the requirement of a reasonable suspicion, said the following:
“The test of whether a suspicion is reasonably entertained within the meaning of s 40 (1) (b) is objective (S v Nel and another 1980 (4) SA 28 (E) at 33H).  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.”

[16]  In my view the grounds on which Els formed his suspicion were not solid enough for the suspicion to be reasonable, and he acted too hastily in arresting the plaintiff.  The information he had been given was circumstantial and some of it hearsay.  There was no reason for him not to interview the persons who were the source of the hearsay evidence.  If he had done so, the circumstantial evidence might have been supplemented or weakened.  If he had made enquiries at Shoprite, where according to the trip sheet the plaintiff had been at the time the diesel was purchased, he might have eliminated the plaintiff as a suspect.  He failed to check information which was capable of being checked.  The circumstantial evidence was not particularly strong.  The plaintiff was not the only employee of FreezerLines who had access to diesel cards.  Other drivers would have worn a jacket with the FreezerLines logo.  The diesel purchased at Imsor Motors was not put into either the Isuzu or the Iveco.  It must have been put into another vehicle driven by another person.  It could not have been the plaintiff who drove the other vehicle because he was driving the Iveco that day.  If it had been the plaintiff who used the stolen card, he would have had to meet someone at Imsor Motors who was driving another vehicle.  Such an unusual scenario cried out for further investigation and the checking of information.  There was no reason to exclude the possibility that someone else had stolen the card and used it at Imsor Motors.  The similarity between the kilometre reading on the purchase slip and the Iveco did seem to be more than a coincidence, but that fact on its own was in my view insufficient on which to form a reasonable suspicion, especially when one takes into account the awkward and unusual scenario if it had been the plaintiff who used the card.

[17]  In my view therefore, Els’ suspicion that the plaintiff had committed the alleged offences was not reasonable and the defendant failed to discharge the onus of proving that the plaintiff’s arrest and detention were justified.  There was no reason to find on the evidence that the arrest was malicious.

MALICIOUS PROSECUTION
[18]  The remaining elements of the claim of malicious prosecution which the plaintiff was required to prove were that the defendant’s servants set the law in motion without reasonable and probable cause and acted with malice.

[19]  It was alleged in the plaintiff’s particulars of claim that “in consequence of the said arrest the SAPS members set the law in motion and instituted a prosecution against the plaintiff on a charge of theft.”  I interpret this allegation to mean that the arresting officers set the law in motion.

[20]  With regard to the requirement of setting the law in motion, the plaintiff was required to prove that Els did something “more than one would expect from a police officer, namely to give a fair and honest statement of the facts to the prosecutor, leaving it to the latter to decide whether to prosecute or not.”  It was not put to Els that he had gone further than expected of him and there was no reason to infer that he had done so.    He took the statement from Schoeman, and gave his own statement to the effect that he had attended the complaint, interviewed Schoeman, questioned the plaintiff, and after viewing documentation had arrested and detained the plaintiff.  Els seems to have had nothing further to do with the case.  His evidence that the docket would have been given to the crime office and allocated to a detective was not challenged.  There was therefore no evidence that Els or any other police officer involved in the arrest of the plaintiff had set the law in motion.  The claim for damages for malicious prosecution cannot succeed.

QUANTUM
[21]  The plaintiff was deprived of his liberty from the Thursday evening until the following Monday morning, a period of about eighty four hours.  During this time he was not let out of the cell.  The conditions were unpleasant, in that the toilet did not work properly and his blanket was unhygienic.  He was also afraid of some of the persons in the cell.  He suffered the humiliation of being arrested in front of his colleagues.  At the time of his arrest he was thirty four years old, and married with three children.
[22]  I have had regard to awards in other cases of wrongful arrest and detention in which the plaintiff was detained for similar periods.  In Minister of Safety and Security v Seymour 2006 (6) SA 320 SCA the respondent spent five days in detention.  For the bulk of that time he was in hospital.  While in police custody he had free access to his family and medical adviser.  His award was reduced on appeal to R90 000.00.  In Rudolph and Others v Minister of Safety and Security 2009 (2) SACR 271 SCA the appellants’ detention lasted for four nights and three days.  They were held in unhygienic conditions, their blankets were dirty and infested with insects, and the cell was infested with cockroaches.  The shower was broken and they were unable to wash and they had no access to drinking water.  One of them was a diabetic and did not have access to his medication.  They were not allowed to receive any visitors.  They were awarded R100 000.00 each.

[23]  The Rudolph matter is closer in circumstance to the present case.  Taking into account the particular circumstances of those cases as well as the depreciation in the value of money since those awards, an appropriate award in the present case in my view is R110 000.00. 

COSTS
[24]  The plaintiff has succeeded only on the first claim.  In May v Union Government 1954 (3) SA 120 (NPD) at 131C, Broome JP said the following:
“The general rule is clear:  a successful plaintiff is entitled to his costs unless the defendant has been entirely successful on a distinct issue wholly unconnected with the issue on which the plaintiff has succeeded.  Fripp v Gibbon & Co., 1913 A.D. 354 at 358.”

In May, the plaintiff succeeded in his claim for wrongful arrest but failed in his claim for malicious prosecution.

[25]  In the present case, the claim for malicious prosecution was not wholly unconnected to the claim for wrongful arrest.  As was said in May at 131 F-G: 
“An investigation of the latter issue (reasonable and probable cause) covered very much the same ground as the investigation of the issue of reasonable grounds of suspicion.  It could thus not be described as a distinct issue wholly unconnected with an issue upon which the plaintiff was successful.” 
  
The whole of the plaintiff’s evidence and that of Els was relevant to the claim for wrongful arrest and detention.  The proceedings were not unnecessarily lengthened by the claim for malicious prosecution.  In all these circumstances I am of the view that the plaintiff is entitled to the costs of the action.

[26]  The following order is made:

26.1  Claim A:  Judgment is entered for the plaintiff in the sum of R110 000.00 with interest thereon at the prescribed rate from the date of service of summons to date of payment.
26.2  Claim B:  The claim is dismissed.

26.3  The defendant is ordered to pay the plaintiff’s costs of the action, with interest thereon at the prescribed rate from 14 days of the date of taxation to date of payment. 

______________
J.M. ROBERSON
JUDGE OF THE HIGH COURT
Appearances
Plaintiff:  Adv. E. Dyer, instructed by O’Brien Inc. Attorneys, Port Elizabeth.
Defendant:  Adv. M. Booi,  instructed by the State Attorney, Port Elizabeth.