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IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE DIVISION, GRAHAMSTOWN

Case no. 48/2014

Date heard: 4/11/15

Date delivered: 10/11/15

Not reportable

In the matter between:

MABHUTI MADZE                                                                                                         Plaintiff

and

MINISTER OF POLICE                                                                                             Defendant

JUDGMENT

PLASKET, J

[1] It is common cause that the plaintiff, Mr Mabhuti Madze, was arrested without a warrant on Thursday 20 June 2013 by Sergeant Phakamile Matomela, a member of the South African Police Service (SAPS) and detained. He was taken to court on Monday 24 June 2013, Matomela having completed a form in which he recommended that Madze be released on bail. He was not released because there was no prosecutor available in court. He was remanded in custody until Wednesday 26 June 2013 and was released on that day.

[2] Madze alleges that his arrest and detention was unlawful and he claims R1 million in damages from the defendant, the Minister of Police.

[3] Section 12(1)(a) of the Constitution provides that everyone enjoys a fundamental right to freedom and security of the person, including a right ‘not to be deprived of freedom arbitrarily or without just cause’. In order to give effect to that right, s 40(1) of the Criminal Procedure Act 51 of 1977 grants a discretionary power to members of the SAPS to arrest people without a warrant, as long as specified preconditions are present. See Duncan v Minister of Law and Order 1986 (2) SA 805 (A) at 818G-I; Minister of Safety and Security v Sekhoto & another 2011 (1) SACR 315 (SCA), paras 28-29.

[4] Section 40(1)(b) is of application in this matter. It vests a discretion in a policeman to arrest a person without a warrant if ‘he reasonably suspects’ that person of ‘having committed an offence referred to in Schedule 1, other than the offence of escaping from lawful custody’. It was this section that Matomela had in mind when he arrested Madze on a charge of stock theft. The offence of stock theft is a Schedule 1 offence.

[5] The material facts are largely common cause or not in dispute. In early May 2013, Matomela was appointed to investigate a case of stock theft involving three cows belonging to Mr Dumezweni Bhemi of Lower Blinkwater in the Fort Beaufort district. On either 1 or 2 May 2013, the cows were slaughtered and their meat was stolen. The heads of the cows were found near where they had been slaughtered.

[6] Matomela was told by an informer that Madze and another man had sold meat to a person by the name of Nomhle Hiti. He interviewed her and she confirmed that she had bought meat from Madze and a second man who she did not know. She showed him leftover, uncooked meat in a fridge. A cows head was also in the fridge with the meat. He seized the entire fridge and took it to his offices. His plan was to have this meat and the three carcasses analysed for any DNA matches. This did not happen because, as a result of load-shedding, the meat in the fridge went rotten and had to be thrown away.

[7] On 20 June 2013, Matomela went to Madze’s home. He asked him to accompany him to the Fort Beaufort police station where he wished to interview him. He confirmed having sold meat to Hiti. He said that he had acquired the meat when he and one Ngothe from the Sheshego area in Alice were travelling in a car between Alice and Fort Beaufort and collided with a cow, presumably killing it.

[8] Matomela asked Madze to show him where the collision occurred. They travelled to the place and Matomela examined the area, finding no trace of animal remains or debris from a car that may have been left after a collision. He asked for Ngothe’s full name and where exactly he lived. Madze could not give him either of these details. This led him to believe that Madze’s version was not true and he then arrested him for the theft of Bhemi’s three cows.

[9] He took Madze to the Alice police station where he was detained. He was later transferred to the Middledrift police station. From there he was taken to court on Monday 24 June 2013 and, because of the absence of a prosecutor, was not released, despite Matomela’s recommendation, until Wednesday 26 June 2013.

[10] When Matomela was cross-examined, he conceded that the presence of a cow’s head in the fridge at Hiti’s house, when taken with the fact that Bhemi had told him and had said in a statement that the heads of his three cows had been recovered, meant that the meat in the fridge was likely to have been from a fourth cow and not one of Bhemi’s cows.

[11] In Mabona & another v Minister of Law and Order & others 1988 (2) SA 654 (SE) at 658E-H, Jones J explained what the concept of a reasonable suspicion entailed. First, he held, the test is an objective one involving an enquiry into whether a reasonable person in the arrestor’s position and having the same information would have considered that there were ‘good and sufficient grounds’ for suspecting that the arrestee had committed a Schedule 1 offence. Secondly, the arrestor is required to analyse and assess the quality of the information critically and not accept it without checking it where it can be checked. Thirdly, while the section requires ‘suspicion but not certainty’, that suspicion must be based ‘upon solid grounds’ because if it is not, it is ‘flighty or arbitrary, and not a reasonable suspicion’.

[12] In my view, Matomela’s suspicion that Madze was guilty of theft of the three head of cattle that were slaughtered at Lower Blinkwater does not qualify as a reasonable one for the following reasons. First, there was no link between Madze selling meat to Hiti and the slaughtered cattle. Secondly, when he saw the head of a cow in the fridge at Hiti’s house, he must have realised that, in all probability the meat in the fridge was not from one of the three cows in the case he was investigating. Thirdly, the visit to the site of the alleged collision between a cow and a car in which Madze had been a passenger could not have availed him in strengthening his suspicion because he inspected that scene about seven weeks after the alleged collision: anything could have happened to the remains and the debris in that intervening period. The mere fact that he sold meat to Hiti does not necessarily make him guilty of stock theft. As a result, I am of the view that the arrest of Madze by Matomela was unlawful.

[13] I turn now to the duration of his detention. Madze was arrested and detained at about 12h00. He was held in the police cells from then until he was taken to court on Monday 24 June 2013. In all probability, he would have been released on bail if the court had been able to function properly. The reason why he was not released had nothing to do with the SAPS. It lay with the prosecution services, and the National Director of Public Prosecutions is not a party to these proceedings. In the absence of the breach of a public law duty on the part of the SAPS, which was neither pleaded nor proved, the defendant cannot be held liable for Madze’s detention from when he appeared in court on Monday 24 June 2013 until his release on Wednesday 26 June 2013. See Woji v Minister of Police 2015 (1) SACR 409 (SCA), paras 27-28. The period for which the defendant is liable is thus from 12h00 on Thursday 20 June 2013 to 10h00 on Monday 24 June 2013 (when, all things being equal, Madze would probably have been released).

[14] In Olgar v Minister of Safety and Security, ECD 18 December 2008 (case no. 608/07) unreported, para 16, Jones J, in assessing damages for an unlawful arrest and detention held:

‘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.’

[15] The amount claimed by Madze – R1 million – is totally unrealistic, as was the amount argued for by Mr Nzuzo, who appeared for him, namely R600 000. Furthermore no evidence whatsoever was led concerning the conditions of Madze’s detention and the effect that it may have had on him. In the result, I am required to determine the quantum of his damages with reference only the values and other factors (to the extent that they are present) mentioned by Jones J in Olgar, to the fact that he was detained unlawfully for two hours short of four days and that the conditions in police cells anywhere in the Eastern Cape are generally unsavoury and far from comfortable or clean.

[16] I have given consideration to comparable cases but they are very much dependant on their own facts and usually are influenced by the conditions that the detainee experienced and their effects on him or her. Even so, the cases vary from awards that appear on the generous side to those that appear to be parsimonious. Taking all of these factors into account and hamstrung as I am by the paucity of evidence, I am of the view that damages in the amount of R120 000 is appropriate for the time spent by Madze in detention and away from his home and family.

[16] I am of the view further that he is entitled to costs on the High Court scale. 

[17] In the result:

(a) judgment is entered in favour of the plaintiff;

(b) the defendant is ordered to pay the plaintiff R120 000 in respect of damages for unlawful arrest and detention;

(c) the defendant is ordered to pay the plaintiff’s costs.

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C Plasket

Judge of the High Court

 

APPEARANCES

For the plaintiff: S Nzuzo instructed by Yokwana Attorneys

For the defendant: S Rugunanan instructed by Netteltons

        

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