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IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION) CASE NO. 4421/2005

In the matter between:

SONWABO BISHINI FIRST PLAINTIFF

LUKWE C. CINGIWE SECOND PLAINTIFF

VUYOKAZI P. TYUKA THIRD PLAINTIFF

And

THE MINISTER OF SAFETY

AND SECURITY DEFENDANT

JUDGMENT

SOMYALO, JP

INTRODUCTION

[1] This action has been instituted by the Plaintiffs against the Defendant for damages resulting from an alleged unlawful arrest and detention of the Plaintiffs.

[2] It is common cause that on 7 September 2002 the Plaintiffs were arrested by members of South African Police Services in connection with an alleged murder and were detained at Walmer police station. On 9 September 2002 they appeared in the magistrate’s court and their case was postponed to 19 September 2002 whereon it was further postponed to the 25 September 2002. On 2 October 2002 the charges against the Plaintiffs were withdrawn, it having been established that “deceased” in the murder charge had, in fact not died.

[3] There are two main issues in this action. The first one being the lawfulness or otherwise of the arrest and detention of the Plaintiffs from 7 September 2002 to 9 September 2002. The second is the lawfulness or otherwise of the Plaintiffs’ detention from 10 September 2002 to 2 October 2002 during which period the matter was postponed from time to time by the magistrate for the purpose of a formal bail application.

[4] At the start of the proceedings it was agreed by both parties that the onus was on the defendant to prove the lawfulness of the arrest and detention. See Newman vs Prinsloo & Another 1973 (1) SA 125 (W) at 126H – 127G. See also Thompson & Another vs Minister of Police 1971 (1) SA 371 (E) at 374 H.

BACKGROUND

[5] The Defendant called three witnesses:

(1) Sergeant Mbangi;

(2) Inspector Marais;

(3) Detective Inspector Nojoko.

For the Plaintiffs:

(1) Amanda Jordaan;

(2) Cingiwe Cecilia Lukwe and;

(3) Danile Lukwe.

[6] According to Sergeant Mbangi who was on duty at the charge office, Walmer police station on 7 September 2002 Nonkululeko Nqebe came in and made a statement. According to her statement which is not a model in clarity and which was handed in as an Exhibit, she was told about an assault on one Mzwandile by a group of women and was further told that the said Mzwandile had passed away. She gave names of the alleged suspects to the police. Sergeant Mbangi could however not recall the details of the statement made to him by Nqebe. He then contacted the control room to request that a patrol van be dispatched to attend to the complaint.

[7] Inspector Ronnie Marais collected Nqebe, together with the statement she had made, from the police station and proceeded to the alleged crime scene. I may here interpose and say that this is in conflict with Inspector Marais’statement as well as his evidence to the effect that he met the witness at the scene.

[8] Inspector Marais’ evidence was to the effect that while on patrol duty during the night of 7 September 2002 he received a radio message advising him of a complaint of assault with intent to do grievous bodily harm. He proceeded to the scene where he spoke to an eye-witness. He however, could not recall who this witness was. In fact he could hardly recall any detail relating to the incident until he was referred to his statement from the police docket which forms part of the record.

[9] Initially Inspector Marais testified that he met the eye-witness at the satellite police station at Fountain Road, Walmer but after seeing his statement he changed to say he must have met the eye-witness at the crime scene. According to the Inspector the suspects were pointed out to him at the scene. He then duly arrested them on a charge of assault with intent to do grievous bodily harm and took them to the Walmer police station where they were detained. He did not see anybody who appeared to be injured.

[10] As stated earlier Inspector Marais could not recall any details of the incident and could not explain some portions of his statement. In a nutshell he tried to reconstruct the events of the night without any proper recollection thereof. His evidence, to say the least, was evasive unsatisfactory and unhelpful. It did however highlight the following significant factors:

(a) After the radio message, he proceeded straight to the scene;

(b) The complaint related to an offence of assault with intent to do grievous bodily harm;

(c) He never saw the alleged victim and did not make any adequate enquiries about the victim’s whereabouts or condition;

(d) He admitted that Nqebe’s statement did not link the Plaintiffs to the alleged crime;

(e) He also conceded that it would have been reasonable to obtain an eye-witness statement.

[11] Detective Inspector Nojoko’s testimony was that he was on stand-by duty as investigating officer of the case and received the docket on 8 September 2002. He remained unclear, despite persistent questioning, as to what his role was as a stand-by investigating officer. It is however clear from the evidence and the documents filed as exhibits that he was infact the investigating officer in the case reported by Nqebe.

[12] He took down the statements of the Plaintiffs. He however could not recall or explain how it came about that the Plaintiffs were charged with murder. He also does not appear to have made any enquiries in this regard. He sent the docket to Court with a note and recommended bail of R1 000-00 for each of the Plaintiffs. He however never followed this up with the prosecutor and, according to him, never received the docket back until approximately 24 days later.

[13] I may now interpose and state that on a charge of murder, being an offence referred to in Schedule 5 to the Criminal Procedure Act 51 of 1977, section 60(11)(b) of that Act prescribes that bail may only be granted if the accused, the onus being on him or her, adduces evidence that the interest of justice permits his or her release on bail. Inspector Nojoko conceded that he was aware of this provision. It is thus difficult to understand how he would have expected that his recommendation on its own, would have resulted in the granting of bail to the Plaintiffs.

[14] It is further common cause that the matter was postponed a few times to enable Inspector Nojoko to attend court for a formal bail application. Although he was evasive as to whether he had investigated whether someone had been murdered or not, it was clear that he had made no such investigation. When it was put to him that Jane Jordaan and Danile Lukwe, on separate occasions, had informed him that Mzwandile (the alleged victim of the murder) was alive and up and about, he could not recall this but did concede that he could not deny that this information had been passed on to him.

[15] He conceded that he had a duty to place all relevant information before a prosecutor. He also conceded that had the prosecution been told that Mzwandile, the alleged murder victim, was alive and well the murder charge would have been withdrawn immediately. He admitted that Nqebe’s statement was hearsay although he relied on it.

[16] Plaintiffs called three witnesses, Jane Jordaan, Cingiwe Cecilia Lukwe and Danile Lukwe. Jane Jordaan an employer of Cingiwe C. Lukwe, one of the Plaintiffs, telephoned Inspector Nojoko during the first weekend and on two separate occasions, enquiring whether the Plaintiffs would be afforded bail. Inspector Nojoko told her that they would not be afforded bail. She phoned again to tell him that the alleged victim was alive.

[17] Mr Lukwe testified that he had similarly contacted Inspector Nojoko during the first few days of second Plaintiff’s detention (Lukwe’s) and informed the Inspector that the “deceased” was alive and well. The Inspector’s response was that he should bring the “deceased” to the charge office. The witness attempted, unsuccessfully, to bring Mzwandile to the Inspector. He informed the Inspector of Mzwandile’s unwillingness to come to the police station. The Inspector’s response was that the Plaintiffs would in any event be released on bail.

[18] The second Plaintiff testified that she and other Plaintiffs were arrested as a result of a pointing out by some persons other than the complainant (Nqebe). She always believed that Mzwandile was alive because she had seen him run away from the place where he was assaulted by people. The Plaintiffs however were informed that they were arrested on a murder charge. They were incarcerated at Walmer police station for approximately three hours. Nqebe was however not detained with the others but was taken away to make a statement.

[19] This seems to accord with Sergeant Mbangi’s evidence that Nqebe’s statement was taken on the night of 7 September 2002. It also highlights the anomaly that the statement which seems to have been the basis of the complaint, was taken after the Plaintiffs had been arrested. The other suspects were detained at the satellite police station in Walmer and Inspector Nojoko took statements from them the following morning. He never discussed the question of bail with them. On 9 September 2002 they were taken to court and remanded in custody for the purpose of obtaining legal representation. On the next court appearance the case was again remanded for a formal bail application. The accused (now Plaintiffs) were informed that the case was remanded because Inspector Nojoko was not present.

[20] At the final appearance the case against the Plaintiffs was withdrawn because it transpired that the “deceased” was still alive.

SUBMISSIONS

[21] On behalf of the Plaintiffs Mr Beyleveld submitted that the arrest of the Plaintiffs was unlawful in that it was done without a warrant of arrest and does not fall within the provisions of Section 40(1)(b) of the Criminal Procedure Act. Secondly even if the charge was murder it was based on a hearsay statement and there could never have been a reasonable suspicion on the part of the police officers.

[22] It was further submitted that the detention was unlawful notwithstanding the fact that the order of the 9^th September 2002 was authorised by a magistrate. Mr Beyleveld submitted further that the arrest was unlawful if one takes into account the provisions of the Constitution relating to the development of Common Law so as to promote the spirit, purport and object of the Bill of Rights. In amplification of this Mr Beyleveld submitted that the police and in particular Inspector Nojoko had a duty to enquire whether there was in fact a dead person. What is more, so the argument on behalf of the Plaintiff went, he ignored all attempts to alert him to the probability of the so-called murder victim being alive. He never made any further attempts to ensure that the Plaintiffs were out on bail when, on his own admission, he was aware that a formal bail application, during which he would have to be present, would have to be made to secure their release.

[23] For the Defendant Mr Simoyi, while conceding that the arrest and detention until the first appearance of 9 September 2002 was unlawful, submitted that it was in fact the Public Prosecutor who was at fault. He submitted that the unlawful detention ceased when the magistrate issued a detention order in terms of Section 50(1) of the Criminal Procedure Act 51 of 1977. He relied on Isaacs vs Minister van wet en order 1996 (1) SACR 314 (A) and on Abrahams vs Minister of Justice & Others 1963 (4) SA 642 (C). Mr Simoyi argued that the prosecutor, having had all the information contained in the docket at his disposal, should have placed this information before the magistrate. The difficulty with this submission is that there is no indication of or evidence on what was contained in the docket at the time of the plaintiffs’ respective appearances in court until the case was eventually withdrawn. As is however apparent from the evidence the investigating officer was, at an early stage of plaintiffs’ detention, aware that the so-called deceased was alive, but he obviously failed to bring that information, through the prosecutor, to the attention of the court.

THE LAW

[24] In terms of Section 40(1)(b) of the Criminal Procedure Act 51 of 1977 “A peace officer may without warrant arrest any person whom he reasonably suspects of having committed an offence referred to in Schedule 1, other than the offence of escaping from lawful custody”. Offences listed under this Schedule are, inter alia, murder, assault when a dangerous wound is inflicted (and not where the offence allegedly committed is assault with intent to do grievous bodily harm, as Inspector Marais testified). It would appear that Inspector Marais, not having been apprised with any first hand information on either a charge of murder or assault with intent to do grievous bodily harm, could not, as indicated below, possibly have had any reasonable suspicion when he effected the respective arrests.

[25] There is also the reasonableness of the suspicion which in my view, would entail amongst other things, ascertaining that in fact a crime has been committed. In the present case Nqebe’s statement was hearsay and was not verified. Further, as pointed out earlier Nqebe’s statement was taken after the arrest of the Plaintiffs. In Ralekwa v Minister of Safety and Security 2004 (1) SACR 136 (TPD) para [13] De Vos J said the following:

“In Duncan v Minister of Law and Order 1986 (2) SA 805 at 818G Van Heerden JA described the conditions to be present in the context of s 41(b) of the Act as follows:

‘(1) The arrestor must be a peace officer.

(2) He must entertain a suspicion.

(3) There 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.’

To decide what is a reasonable suspicion there must be evidence that the arresting officer formed a suspicion which is objectively sustainable. It was described thus by Jones J in Mabona& Another v Minister of Law and Order and Others 1988 (2) SA 654 (SE) at 658 E-G:

‘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 this 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, i e something which otherwise would be an invasion of private rights and … (t)he 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”.

[26] In so far as the detention from 9 September 2002 to 2 October 2002 Mr Simoyi for the Defendant submitted that Inspector Nojoko had made a recommendation that the Plaintiffs be admitted to bail and this was confirmed by the completed form which was part of the docket.

[27] As to the duty on police officer Nojoko to act on the information he had received, that no murder had, infact, been committed, a person is generally not liable when he/she fails to prevent loss or infringement of the rights of another. Liability follows only if the omission was wrongful. This will only be considered if a legal duty rested on the Defendant to act positively to prevent harm from occurring. In Van Eeden vs Minister of Safety and Security 2003 (1) SA 389 (SCA) at 396 para [11] Vivier JA said the following:

“The approach of our courts to the question whether a particular omission to act should be regarded as unlawful has always been an open-ended and flexible one”.

[28] In Moses vs Minister of Safety & Security 2000 (3) SA 106 (C) at 113 G – I the court held that the “omission was wrongful if in the particular circumstances a legal duty to act positively exists and the party whose conduct was under consideration fails to discharge that duty. It is generally accepted that in the absence of an established legal norm or a recognised ground of justification, wrongfulness is determined according to the criterion of reasonableness with reference to the legal conviction of the community as established by the courts”.

[29] The test to determine whether the omission was in conflict with the convictions of the community is objective, in the sense that all the relevant circumstances of a particular case must be taken into consideration. Factors which indicate the existence of a legal duty to act positively must be applied in the light of the spirit, purport and objects of the Bill of Rights.

[30] In Isaac’s case, supra, to which I have been referred by Mr Simoyi it was indeed held that the fact a person’s arrest is unlawful does not mean that his or her further detention in terms of an order made in terms of section 50(1) of the Criminal Procedure Act 51 of 1977 would also be unlawful (323h-i of the report). The ratio of this finding is that, insofar as section 50(1) of the Criminal Procedure Act 51 of 1977 requires an arrested person not to be detained for a period longer than 48 hours unless he is taken to an inferior court and his or her further detention is ordered, an arrested person is able to question in public the lawfulness of his arrest (see also: Abrahams v Minister of Justice 1963(4) SA 542 (C ); and S v Ebrahim 1991(2) SA 553 (A)). It is also, I add, at this stage that any information relevant to the charge against an accused person which may have an effect on his or her detention ought to be brought to the court’s attention.

[31] One must however take into account the fact that the above cases were decided before the coming into effect of the 1996 Constitution of the Republic of South Africa with its Bill of Rights and in particular Section 39(2) which obliges our courts to develop the common law to be in line with the spirit, purport and objects of the Bill of Rights.

[32] Section 39(2) provides that when interpreting any legislation and when developing common law or customary law, every court must promote the spirit, purport and objects of the Bills of Rights. Section 12(1)(a) of the Constitution provides that everyone has the right to freedom and security of the person which includes the right not to be deprived of freedom arbitrarily and without just cause.

[33] In Carmichele vs Minister of Safety and Security & Another [2001] ZACC 22; 2001 (4) SA 938 CC the court decided that there are two stages to the enquiry that courts are required to undertake in such cases. Firstly the court has to consider whether the existing common law, having regard to the objectives of Section 39(2) of the Constitution require development. If the enquiry leads to a positive answer, the second stage concerns itself with how such development is to take place in order to meet the objectives of Section 39(2).

[34] The court held at page 941 E – G:

“the exercise in proportionality previously conducted by the courts in order to determine the duty to act in delictual cases was consistent with the Bill of Rights, but now this exercise had to be carried out in accordance with the spirit, purport and objects of the Bill of Rights and the relevant factors weighed in the context of a constitutional State founded on dignity, equality and freedom and in which the government had positive duties to promote and uphold such values… There was thus a duty on the State and its organs not to perform any act that infringed these rights, and in some circumstances there would also be a positive component obliging the State and its organs to provide appropriate protection to everyone through laws and structures designed to afford such protection”.

[35] The court held at 960 B that in the circumstances of this case liability had to be determined on the basis of the law and its application to the facts of the case. The court held the investigating officer and the prosecutor to have had a legal duty to ensure that they brought all the necessary information at their disposal to the attention of the court. Due to their failure the accused’s bail application was not opposed and his release enabled him to carry out his threats. Therefore a strong case could be made for holding the prosecutor and the investigating officer liable for the damages suffered by the applicant.

[36] The Carmichele decision was followed in Geldenhuys vs Minister of Safety and Security and Another 2002(4) SA 719 (C) at 728 D-E where the limit of wrongfulness relating to public bodies and their duties were extended a lot further when Davis J held:

“…the paramount obligation of such bodies is to act within the framework of the Constitution. Although Ackerman and Goldstone JJ cautioned against ‘overzealous judicial reform’, an extension of the element of wrongfulness within the context of police action is based upon the common-law dictum set out in Ewels (supra) and flows from ‘a proper appreciation of the Constitution and its objective normative value system’”.

[37] In Minister of Justice & Constitutional Development vs Zealand 2007 (2) SACR 401 (SCA) at 404F, para [4] the court in a majority judgment held:

“The right to freedom is entrenched in the Constitution. When a person is arrested and detained public power is being exercised by the executive administration of the state which may not exercise any power or perform any function beyond what is conferred by law. This is in accordance with the doctrine of Constitutional legality, an incidence of the rule of law which is a foundational value of the Constitution. It goes without saying that the state has the burden to prove that the exercise of power was lawful”.

[38] The court, however, seems to have endorsed the decision in Isaacs (supra) when in paragraph [17] it held:

“Following upon this conclusion it needs to be investigated whether any ground exists for finding that in the period between 23 August 1999 and 11 October 2001 the respondent was unlawfully detained. The record reveals that the respondent’s continued detention was in terms of the order of the court remanding him in custody. A decision by a court to remand an accused person in custody results in lawful detention of that person. Such a decision needs to be set aside before lawful detention in terms thereof ceases.”

[39] The Zealand matter went on appeal to the Constitutional Court and on 11 March 2008 the Constitutional Court handed down judgment (Jonathan Zealand vs Minister for Justice & Constitutional Development & Another CCT 54/2007) in which it held, inter alia, in paragraph [42] and [43] that:

“[42] The respondents’ final argument is that the majority decision of the Supreme Court of Appeal was correct to conclude that the applicant’s detention was justified by the series of magistrates’ orders remanding him in custody. These started before his conviction in the second case, continued after his successful appeal in that case, and ran right up until the charges against him in the first case were dropped. The majority held that-

“[t]o detain someone contrary to his or her status does not… affect the lawfulness of the detention, which arises from the court order and not from the place or manner of detention.

[43] I cannot agree. This reasoning ignores the substantive protection afforded by the right not to be deprived of freedom arbitrarily or without just cause contained in section 12(1)(a) of the Constitution. That right requires not only that every encroachment on physical freedom be carried out in a procedurally fair manner, but also that it be substantively justified by acceptable reasons. The mere fact that a series of magistrates issued orders remanding the applicant in detention is not sufficient to establish that the detention was not “arbitrary or without just cause”. To the contrary, for the reasons I advanced above, it is my view that the detention was manifestly both arbitrary and without just cause.”

[40] In the present case it is not in dispute that Inspector Marais arrested the Plaintiffs on a charge of assault with intent to do grievous bodily harm and he had no warrant. It is also clear from the evidence that a statement which formed the basis of the complaint was taken down by Sgt Mbangi after the Plaintiffs were taken into custody. It is also not disputed that the said statement by Nqebe was based on hearsay evidence. Even assuming that the Plaintiffs were arrested on a charge of murder as testified by Sgt. Mbangi there is clearly nothing to suggest that this was based on any reasonable grounds relating to the commission of the offence. No attempt was made to investigate whether an offence had infact been committed nor was any attempt made to establish whether there was indeed a dead person.

[41] Indeed Counsel for the Defendant has conceded that the arrest and detention of the Plaintiffs from 7 to 9 September 2002 was unlawful. Notwithstanding his disclaimer it is clear from the evidence and documents placed before court, that Inspector Nojoko, was the Investigating Officer in the matter. On a charge of murder, Section 60(11)(b) of the Criminal Procedure Act 51 of 1977 prescribes that an accused has to be detained until dealt with in terms of the law. He brings a bail application and has to satisfy the court that it will be in the interest of justice if he is released on bail. Inspector Nojoko claims that he is aware of this provision.

[42] This means his inscription on the docket that the Plaintiffs be released on R1 000-00 bail was of no force and in fact meaningless. It is further contradicted by his response to Jordaan’s enquiry about bail, that there was no bail. He was contacted twice and advised that in fact Mzwandile was alive and well. On one occasion he requested Mr Lukwe to bring Mzwandile to the police station, which seems to be rather unlikely to happen in the light of the fact that according to the evidence Mzwandile was suspected of rape.

[43] He does nothing to investigate whether or not an offence has been committed notwithstanding the clear messages saying to him and indicating that there may very well be no reasonable cause for detaining the Plaintiffs. What is more he does not communicate these to the prosecutor or the court. On the contrary it appears that attempts to get them to court for a bail application to be launched by the Plaintiffs could not be proceeded with due to his failure to attend court. It was on 1 October 2002 when Nqebe made a statement to the effect that Mzwandile is well and alive that Inspector Nojoko brought this to the attention of the Court. Then the case against Plaintiffs was withdrawn.

[44] It is my view that Inspector Nojoko had a duty to investigate the allegation of assault on and the death of Mzwandile. This he failed to do. Had he properly investigated the alleged murder and informed the prosecutor of all the information at their disposal, the Plaintiffs would never have been kept in custody for as long as they were. Consequently the failure by police officers to act when they were under a legal duty to do so was wrongful.

[45] Applying the principles set out in the Carmichele case as well as the Zealand case to the present case it is my view that the police officers had a legal duty to investigate the allegations against the Plaintiffs as well as to take note of warnings from Mrs Jordaan and Mr Lukwe indicating the innocence of the Plaintiffs. Failure to bring this to the attention of the Court when they were duty bound to do so, renders the Defendant liable to the Plaintiffs for any loss they may have suffered.

QUANTUM OF DAMAGES

[46] The personal circumstances of the Plaintiffs are as follows:

First Plaintiff is 34 years old. He matriculated from Mzomhle High School. At the time of his arrest he was employed but found alternative employment after his release. He has two minor children whom he supports.

Second Plaintiff is a 47 year old domestic worker. She is married with two children.

Third Plaintiff is 31 years old. At the time of her arrest she was working for the Department of Water and Forestry. She has been unemployed since her release. She had standard 7 education and has one minor child.

[47] All were detained for 24 days. As guidelines on assessing damages, Counsel have referred me to a number of cases, inter alia:

(a) Mthimkhulu and Another vs Minister of Law & Order 1993(3) SA 432 (E);

(b) Manase vs Minister of Safety & Security 2003(1) SA 567 (Ck).

I have also had sight of an unreported judgment by Jones J in

Gabriel Freeman vs The Minister of Safety and Security &

Another Case no. 760/2005 SECLD delivered on 3 March

2006.

Taking into account all the circumstances I am of the view that a proper and fair damages award in respect of each Plaintiff is R175 000-00.

[48] In the result the following order is made:

1. Defendant is ordered to pay to each of the three Plaintiffs a sum of R175 000-00 being damages.

2. Defendant is ordered to pay Plaintiffs’ costs, such costs to include costs occasioned by the employment of two Counsel.

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____________________

C. M. SOMYALO

JUDGE PRESIDENT

EASTERN CAPE DIVISON OF THE HIGH COURT

COUNSEL FOR PLAINTIFFS: Adv . A Beyleveld with

Adv. M. Beneke

Instructed by: Bumeister De Lange

Attorneys

Tel: 041-373 9693

COUNSEL FOR DEFENDANT: Adv. M. Simoyi

Instructed by: Vaneetha Dhanjee Attorneys

Tel: 041-585 0898

HEARD ON 6 SEPTEMBER 2007

DELIVERED ON 20 MAY 2008

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