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“IN THE HIGH COURT OF SOUTH AFRICA”

NORTH WEST DIVISION, MAHIKENG

CASE NO. 931/2011

DATE: 30 OCTOBER 2014

In the matter between:

LENTIKILE PATRICK SELEKO......................................................PLAINTIFF

And

THE MINISTER OF POLICE........................................................DEFENDANT

JUDGMENT

GUTTA J.

A. INTRODUCTION

[1] The plaintiff claims damages in the amount of R900 000.00 from the defendant for unlawful arrest and detention.

[2] Although the defendant raised a special plea in terms of section 3 of the Institution of Legal Proceedings against certain Organs of State Act 40 of 2002 (“the Act”), the plaintiff applied for condonation and the defendant granted the plaintiff condonation on 25 July 2013.

B. COMMON CAUSE

[3] The facts that are common cause between the parties are the following:

3.1 the plaintiff was arrested without a warrant of arrest at Setlagole;

3.2 the defendant was detained at Stella Police Station at 04h40 on Sunday, 02 August 2009;

3.3 an identification parade was held on Tuesday, 04 August 2009 and the plaintiff was pointed out;

3.4 the plaintiff’s first appearance in court was on Wednesday, 05 August 2009;

3.5 the plaintiff was released on bail on Wednesday, 12 August 2009;

3.6 the count of robbery was provisionally withdrawn against the plaintiff on 02 December 2009.

C. ONUS

[4] The defendant bears the duty to begin, and the onus to prove that the arrest and detention was lawful.

D. PLEADINGS

[5] The plaintiff, in paragraph 4 of the particulars of claim, avers that his arrest was unlawful in that two members of the SAPS who arrested him on the instructions of Officer Tsholetsane:

“5.1 did not have reasonable ground to arrest him;

5.2 did not appreciate that they had a discretion to arrest or not to arrest him without a warrant;

5.3 neglected, refused and/or failed to exercise the aforesaid discretion, alternatively to exercise it properly;

5.4 neglected, refused and/or failed to make any enquiries from him or any other person to ascertain whether there were grounds to arrest him or not;

5.5 as a result of their aforesaid neglect, refusal and/or failure they did not realise that there were no grounds for his arrest and that they could have ensured his attendance in Court by serving a summons pursuant to the provisions of section 54 of the Criminal Procedure Act 51 of 1977 (“the CPA”) on him or by warning him to report to them to attend court and that his arrest was thus not the only appropriate way to do so;

5.6 arrested him arbitrarily and without just cause;

5.7 have, as a result of the aforesaid infringed his right not to be deprived of his freedom arbitrarily or without just cause as enshrined in section 12(1)(a) of the Constitution of the Republic of South Africa Act 108 of 1996 (“the Constitution”).”

[6] In the plea, the defendant raised inter alia the following defence:

“2.1 Defendant deny that the Plaintiff was detained in the police vehicle. Plaintiff was kept in the police vehicle for a reasonable period for as long as it was necessary to take him to the police station.

2.2 Plaintiff was arrested on the 2nd day of August 2009 and appeared in court on the 3rd day of August 2009. The Plaintiff was thereafter kept in lawful detention on the strength of a court order until the 12th day of August 2009 when the Plaintiff was released on bail.

3. Save to admit the arrest of the Plaintiff, the Defendant denies that the Defendant had no reasonable grounds to effect such arrest.

3.1 Warrant Officer Tsholetsane was telephoned by an informer on the 28th July 2009, reporting a crime of robbery which was allegedly committed by the Plaintiff and three or more accomplices. Warrant Officer Tsholetsane was provided with video footage relating to the incident of robbery.

3.2 On the 29th day of July 2009 a complaint in CAS22/07/2009, supported by witnesses, supplied Defendant with statements under oath, reporting a case of armed robbery. Plaintiff was linked to the offence.

3.3 Given the seriousness of the allegations against the Plaintiff, it could not be reasonably expected of the Defendant to have invoked the provisions of section 54 of the Criminal Procedure Act or to warn the Plaintiff to appear in court. This could have led to the dissipation of all the exhibits relating to CAS22/07/2009 and any other matters and such warning would have defeated the ends of justice.

3.4 Defendant will plead that, even when not armed with a warrant, a police official may arrest a person if such police official can satisfy the requirements of section 40 of the Criminal Procedure Act 51 of 1977. Defendant pleads further that, the Defendant reasonably suspected the Plaintiff of having committed one of a specific category of offences.

3.5 It will be denied that the Defendant acted arbitrarily and/or infringed Plaintiff’s constitutionally protects rights. If indeed such infringement occurring, which infringement is denied, Defendant’s plead that such limitation or infringement was reasonable and lawful.

3.6 The arrest of the Plaintiff was justified in terms of section 40 of the Criminal Procedure Act 51 of 1977. . .

3.7 The arrest of the Plaintiff was justified and lawful in terms of the provisions of section 50(1) of the Criminal Procedure Act 51 of 1977. . .”

E. WITNESSES

A) DEFENDANT’S WITNESSES

[7] The first witness called for the defendant was Mr Daniel Tsholetsane (“Officer Tsholetsane”), a police officer in the South African Police Services (“SAPS”), holding the rank of a warrant officer for the last 14 years. Currently he is stationed at the Tshidilamolomo Police Station.

[8] In 2009, he was stationed at Stella Police Station. He was the investigating officer in a robbery at a farm in Stroebelsrus under Case No. 2207/09. He explained that on Wednesday, 29 July 2009 at about 05h30–06h30, three assailants armed with firearms went to the house where the farmworkers resided and kept them hostage. They waited for the owner of the farm to go to work and one man remained in the house with the farmworkers, and the other two took one of the farmworkers to the house where they found the owner’s wife, Mrs Catharina Bester (“Mrs Bester”), and demanded money and firearms. They tied her hands and took the keys to the safe. Firearms and jewellery were stolen and the perpetrators fled, driving a white Condor vehicle.

[9] On Saturday, 01 August 2009, at approximately 22h00, Officer Tsholetsane received a message from an informer, who he uses regularly, informing him that the people who were involved in the robbery at Stroebelrus might be at Setlagole. Stroebelsrus is a distance of approximately 45–50km from Setlagole. He woke other members of the Crime Prevention Unit (“CPU”) and proceeded to the place mentioned by the informer. He said he told his informer to look for ‘a white Condor’ with four male passengers who are not known around the area, and gave his informer the features of the suspect. He and his colleagues, namely, Officers Motsana, Moshabe and Ramoenyane, travelled in 3 cars. He was driving a double-cab without a canopy.

[10] He and his informer went to Stomanjo Tavern (“the tavern”), at Setlagole. His informer pointed out three people seated at a table inside the tavern and said that those people arrived in a white Condor, which was parked outside the tavern. One of the witnesses in the robbery case described one of the assailants as short, stout (big body) and dark in complexion, and he identified one of the men at the table as having those features. He went into the tavern and identified himself with his badge and told the patrons to go outside, one at a time. The three suspects, namely, the plaintiff and Mr Rukero and Mr Molaudi, were kept aside. He introduced himself to the suspects and showed them his identity card and he told his colleagues to introduce themselves. He told them that he is investigating a case of robbery and that he suspects that they were involved. The plaintiff understood.

[11] The plaintiff allowed them to search the white Condor and opened the door. Thereafter, they explained the rights to the suspects and he and members of the CPU arrested the three suspects. The time was 03h20 on 02 August 2009. The suspects and the Condor vehicle were taken to the Setlagole Police Station. The two suspects were conveyed in one police vehicle, and the plaintiff was in a bakkie with a canopy driven by Officer Ramoenyane. He said the reason why the suspects were separated was because the plaintiff was cooperating when the vehicle was searched, while the other two were not. At the Setlagole Police Station, they completed the paperwork while the suspects were inside the police vehicle. Only the plaintiff alighted to read what was contained in the report.

[12] Thereafter, they proceeded to Madibogo Police Station. The drive from Setlagole to Madibogo took approximately 20–25 minutes. At Madibogo, the other two suspects were taken into the police station, where they were detained. The plaintiff remained in the bakkie as he was going to be detained at the Stella Police Station. They did not want to detain them together as they would influence one another and the plaintiff was cooperating. They left Madibogo Police Station after approximately 15 minutes and drove to Stella Police Station, which is approximately 30–35km away. It took approximately 20 minutes. They arrived at Stella Police Station at 04h40 on Sunday. At Stella Police Station, the plaintiff was registered and then detained.

[13] He said he arrested the plaintiff without a warrant because he had the statements made by the complaint and witnesses, and he had a suspicion that the plaintiff was one of the perpetrators who committed the crime, according to the features described in the statement under oath. Further, the suspect in the robbery was driving a white Toyota Condor, which is the vehicle driven by the plaintiff. He said it is unusual to find a Condor around the farms as farmers usually drive bakkies.

[14] He said if the suspect is arrested on a Saturday or Sunday, the 48 hours in which a suspect should be taken to Court runs from Monday at 08h00. The plaintiff was not taken to Court on Monday as they were still conducting investigations. The suspects were informed on Monday, 03 August 2009 that an identity parade will be held on 05 August 2009. The plaintiff appeared in Court after the identity parade on 05 August 2009, and was released on bail on 12 August 2009. He was not involved in the case after the plaintiff was released on bail.

[15] Under cross-examination, he was referred to the statement made by Mrs Bester on 29 July 2009, wherein she says that there were four perpetrators, while he testified that there were three perpetrators. He replied that it was some time ago and he had forgotten some of the contents. It was also put to him that in the witness’ statement there is no description of the suspects. He replied that a worker on the farm gave him the description. He was then referred to the statement of the farmworker, Lucky Dirulelo (“Lucky”), who only described the perpetrator as fat, he replied that Lucky also talked about the person being fat and short. He was also referred to the statement of Ms Priscilla Dirulelo (“Ms Dirulelo”), wherein she refers to four unknown men and one was a coloured man. He said Lucky and another gentleman and Mr Patrick Dirulelo (“Mr Dirulelo”) gave him the description of the suspects. When asked why he did not write the description of the suspect in his statement, he replied that these type of crimes are called ‘trio crimes’, that is, offences involving murder, robbery, housebreaking and hijacking, and must be completed very fast.

[16] Under cross-examination, it was also put to him that there is no mention of a white Condor in the witnesses’ statements, he replied that the vehicle was only mentioned when he questioned one of the witnesses and he could not recall who the witness was. It was put to him that Mr Dirulelo referred to a white Venture that the four suspects were traveling in. He replied that most people in the rural area cannot differentiate between a combi and a Venture, and he took photographs of a Condor, Venture and combi and showed them to Mr Dirulelo, who pointed out the Condor. He did not take his statement to confirm the photograph identification. He said he questioned Mr Dirulelo on the same day of the incident.

[17] He said a day after the robbery, they went to the filling station at Stella where they viewed camera footage of 29 July 2009 and he observed a white Condor. The driver and the registration of the vehicle was not visible.

[18] He also said that he was of the view that an identification parade could be of assistance, and that both the plaintiff and the other suspect arrested, Mr Rukero, were pointed out in the identification parade.

[19] When it was put to him that he was not aware that he had a discretion to arrest or not without a warrant, he replied that he knew he had a discretion and exercised the discretion. He said he had the docket with the complainant’s statements, and the features of the suspects and he arrested the plaintiff according to ‘the circumstances of the crime investigation’.

[20] The next witness called was Mr Benjamin Kamogelo Mohutsana (“Officer Mohutsana”). He is a member of SAPS for seven years, holding the rank of constable. He was on duty on 01 August 2009. He said Officer Tsholetsane called him and told him that they have information pertaining to the suspect, who is wanted in the case of housebreaking from a trustworthy informer. He said they went to the tavern and Officer Tsholetsane instructed them where to stand in the tavern. He stood at the main entrance door. They were three officers, namely Officers Tsholetsane, Moshabe and himself. Other officers from Setlagole Police Station joined them at the tavern. The time was approximately 02h00. They left Setlagole in the three vehicles driving in a convoy. He said in his vehicle he conveyed the two suspects, Mr Rukero and Mr Molaudi, and the plaintiff left with Officer Ramoenyane. Officer Tsholetsane did not have any suspect as he was driving in an open bakkie. They first drove to Madibogo Police Station, where they detained the two suspects. That took approximately 20–30 minutes, and thereafter they went to Stella Police Station where they arrived at 04h40 and the plaintiff was detained.

[21] He said it was possible to arrest without a warrant in circumstances where there are reasonable grounds that the suspect can escape in the short period of time and if they suspect that he is the person they are looking for.

B) PLAINTIFF’S WITNESSES

[22] The plaintiff, Lentikile Patrick Seleko, testified. He is a 35 years old man whose highest level of education is standard 8 (Grade 10). He has two minor children aged 5 and 13 years, and is unemployed. Prior to his arrest, during August 2009, he was employed as a driver for Kenny Clay Transport (“Kenney Clay”), who had a contract with South African Breweries. It was put to him that he was arrested for a robbery that occurred on 29 July 2009 between 05h30 and 06h30, he replied that he usually started work at 05h30, but could not recall whether he went to work on 29July 2009.

[23] He said on Saturday, 01 August 2009, he was driving his friend, Thys Lefosa’s (“Bushy”) vehicle, which he borrowed to attend the funeral at Madikwe. It was a white Toyota Condor with registration number DTB 003 NW. He said on 30 July 2009 he asked Bushy if he could use his vehicle. Bushy’s vehicle was not in good condition and on Friday, 31 July 2009 he took the mechanic to repair the vehicle and took possession of the vehicle on Friday. He left for the funeral in the early hours on Saturday, 01 August 2009. After the funeral he returned to his father’s home in Madibe and stayed there until the afternoon. Thereafter, he went to the tavern at Setlagole. He was in the company of his friend Sydney Mosetlhabe and Sydney’s brother, Boka. Sydney died last month. His death certificate was identified.

[24] At the tavern, he was seated with Sydney and Boka, Boka left later. There were other people seated at the same table, but they were not together. A number of police officers arrived. He knew one officer, Neteo (also known as Weepa). The police informed them that they are searching everyone. They formed a line and the police searched everyone as they went outside. He and Sydney were searched and nothing was found. They went back inside the tavern.

[25] He said the police returned and were looking for the driver of the Toyota Condor with registration number DTB 003 NW, which is Bushy’s vehicle. He went outside and the police asked him to open the door of the Toyota Condor so that they could search the vehicle. The police searched the vehicle and did not explain what they were looking for, even though he asked the police officers. Nothing was found in the vehicle. Thereafter, Officer Tsholetsane arrived in a bakkie. Officer Tsholetsane did not speak to him at the tavern. Another police officer informed him that he had to go with them to Setlagole Police Station with the Toyota Condor. They left the tavern at around 21h00 to 22h00. He drove the Toyota Condor and the other two police officers accompanied him to the police station, where he handed over the keys and was instructed to climb into the police vehicle. This is when he realised that he was under arrest. He tried to contact Bushy, but he did not have airtime.

[26] After they left the police station, they drove for the whole night and arrived the next morning at around 05h00 at Stella Police Station. He was alone in the back of the vehicle and there were two or three police officers in front. He was conveyed in a police van with a canopy, glass in front and at the back and a grill on the side. At Stella Police Station a police officer explained to him why he was under arrest.

[27] He was referred to the notice of rights, and he confirmed that he signed it on 02 August 2009 at 04h40 at Stella Police Station, and he identified the property receipt with the items that were taken from his possession at the police station. He said the police officers took his shoes, so they could trace his footprint and only returned it after a few days. His first appearance in court was on 05 August 2009 and he was remanded in custody until he paid bail in the amount of R1 000.00 on 12 August 2009.

[28] He was referred to ‘the statement regarding the interview with the suspect’. He confirmed his signature and the interview with Officer Tsholetsane on 04 August 2009. He said this was the first time he met and spoke to Officer Tsholetsane. He disputed that Officer Tsholetsane identified himself at the tavern and informed him that he was arresting him for robbery.

[29] He said he met the other two suspects, Mr Rukero and Mr Molaodi, for the first time when he was being taken to court in Vryburg on 05 August 2009. He did not know them prior to that day. He denied that he was seated with them at the tavern, and that they were arrested together. He did not see them at the tavern, and did not know if they were detained at Madibogo Police Station. He only saw them at Stella Police Station.

[30] He said he was only allowed visitors after his first court appearance. Neither his wife nor his friend, Bushy, were allowed to see him before this. He was allowed to make a call after his first appearance in court. When describing the condition of his cell, he said it was cold and he was walking with his socks. He was given bedding and he was in the cell with ten other people. He only had 2 blankets and one was used as a pillow. He needed five blankets to sleep and stay warm because the cell is cold and the floor is cement. He admitted that he did not request more blankets. He received meals every day, three times a day. He was not feeling well, as he had a cold. After he was released he went to a doctor and the doctor’s medical note was identified. He admitted that he did not seek medical assistance while he was in the cells.

[31] He said when he was arrested at Setlagole people who he knew saw him being arrested. He felt his dignity was lowered by the arrest and detention. He lost his job after he was arrested. He could also not apply for a public permit as he had a pending case.

[32] He was questioned about the pointing out and that one Lucky pointed him out at the identification parade. He said he does not know Lucky. He identified himself in the photographs taken at the identification parade and said his built was heavier than the others. The other two suspects were also in the line-up.

[33] Under cross-examination, he was referred to Bushy’s affidavit which reads that he went to Bushy on Wednesday, 30 July 2009. It was put to him that the date on Wednesday was 29 July 2009 and Thursday was 30 July 2009. He said he went to Bushy on 30 July 2009 to explain that he will use his vehicle on the weekend and he only took possession of the vehicle on Friday, 31 July 2009.

[34] Under cross-examination, he also said that he arrived at the tavern at 22h00 and consumed 6 or less cold drinks and beers. They were relaxing as they were not working the next day. When asked whether he was under the influence of alcohol when the police arrested him, he replied that he does not know what to say. Later he testified that he arrived at the tavern past 18h00 or 19h00 and he remembered that it was 22h00 when they left the tavern for the police station.

[35] He said he explained to Officer Tsholetsane who the white Condor belongs to and where the owner stays and works, and that Officer Tsholetsane only consulted with Bushy after he was released on bail.

[36] In cross-examination, he admitted that he was not at work the week of 29/30 July 2009, and in re-examination, he said on 27 July 2009 he was on duty but could not recall if he had a load.

[37] The next witness was Mr Thys Lefosa, (Bushy). He is the owner of the white Condor with registration number DTB 003 NW. He said in July 2009, he assisted the plaintiff with transport. He first loaned him his Uno vehicle, to enable him to go to work, because the plaintiff’s bakkie was stolen. Thereafter, the plaintiff came to him on Thursday, 30 July 2009 to borrow the white Condor so that he could attend a family funeral. The vehicle had not been used for 3–4 months because he lost the keys to the vehicle. He told the plaintiff that he had purchased a new ignition key and that he should call a mechanic to repair the vehicle. On 31 July 2009 at 17h05 he met the plaintiff at the car wash and the vehicle had been repaired. He did not see the plaintiff again until after his arrest.

[38] He said on Sunday, 02 August 2009 at 08h00 he received a call from his friend, Officer Weepa, telling him that the plaintiff was arrested. He went to Stella Police Station on the same day. On his arrival he was told that it was not possible to see the plaintiff. He said he did not find his vehicle and was informed that the officers who arrested the plaintiff were not on duty. He met the plaintiff after his first appearance at Stella Police Station on 05 August 2009.

[39] He agreed that he made a statement with Officer Tsholetsane. His statement reads that the plaintiff borrowed the vehicle on Wednesday, 30 July 2009. It was put to him that Wednesday was 29 July 2009 and that a Condor was used in a robbery at Stella on 29 July 2009, at 05h30–06h00. He said on Wednesday morning at 05h30–06h00, his vehicle was in his yard at Signal Hill, and that the vehicle was not in working condition as he had lost the keys to the vehicle and that the plaintiff took possession of the vehicle on the Friday. His statement further reads that he heard on Sunday, 03 August 2009 that the plaintiff was arrested, it was put to him that Sunday was 02 August 2009. He replied that he told the police officer that he heard that the plaintiff was arrested on Sunday and did not give him a date. He confirmed that Officer Tsholetsane read the statement back to him and he signed it. He said he did not check to see if there were any mistakes. The vehicle was returned to him after two days.

F. ISSUES

[40] The issues before this Court are:

40.1 whether Officer Tsholetsane entertained a reasonable suspicion that the plaintiff was involved in the commission of the robbery and if so, whether he appreciated that he has a discretion to arrest or not and considered and applied that discretion, and if so, whether he exercised the discretion rationally;

40.2 whether the arrest and detention of the plaintiff was lawful;

40.3 whether the plaintiff is entitled to damages.

G. EVALUATION OF EVIDENCE

[41] There are conflicting versions with regard to the time and date of the arrest, whether the plaintiff was taken to the Stella Police Station soon after his arrest, whether the plaintiff was arrested by Officer Tsholetsane, whether the other two suspects were at the tavern in the company of the plaintiff and whether they were also arrested. Although the averments pertaining to the time and date when the plaintiff was arrested were denied in the plea and the defendant pleaded that the plaintiff was arrested on Sunday, 02 August 2009 at 03h30, the defendant at the pre-trial conference admitted that the plaintiff was detained at 22h00 on 01 August 2009. However, both Officers Tsholetsane and Mohutsana testified that the plaintiff was arrested on Sunday at approximately 03h20.

[42] When evaluating evidence, the judgment of Stellenbosch Farmers’ Winery Group Ltd & Another v Martell Et Cie & Others 2003 (1) SA 11 (SCA) at 14I–15D paragraph [5] gives guidance. It reads:

“[5] On the central issue, as to what the parties actually decided, there are two irreconcilable versions. So, too, on a number of peripheral areas of dispute, which may have a bearing on the probabilities. The technique generally employed by courts in resolving factual disputes of this nature may conveniently be summarized as follows. To come to a conclusion on the disputed issues a court must make findings on (a) the credibility of the various factual witnesses; (b) their reliability; and c) the probabilities. As to a), the court’s finding on the credibility of a particular witness will depend on its impression about the veracity of the witness. That in turn depends on a variety of subsidiary factors, not necessarily in order of importance, such as (i) the witness’s candour and demeanour in witness-box, (ii) his bias, latent and blatant, (iii) internal contradictions in his evidence, (iv) external contradictions with what was pleaded or put on his behalf, or with established fact with his own extra curial statements or actions (v) the probability or improbability of particular aspects of his version, (vi) the calibre and cogency of his performance compared to that of the other witnesses testifying about the same incident or events. As to b), a witness’ reliability will depend, apart from the factors mentioned under (a) (ii), (iv) and (v) above, on (i) the opportunities he had to experience or observe the event in question and (ii) the quality, integrity and independence of his recall thereof. As to (c), this necessitates an analysis and evaluation of the probability or improbability of each party’s version on each of the disputed issues. In the light of its assessment of (a), (b) and (c) the court will then, as a final step, determine whether the party burdened with the onus of proof has succeeded in discharging it. The hard case, which will doubtless be the rare one, occurs when a court’s credibility findings compel it in one direction and its evaluation of the general probabilities in another. The more convincing the former, the less convincing the latter. But when all factors are equipoised probabilities prevail.”

See National Employers’ General Insurance Co Ltd v Jagers 1984 (4) SA 437 (E) at 440 D to G; Mabona & Another v Minister of Law and Order & Others supra at 662D–F; and April v Minister of Safety and Security 2009 (2) SACR 1 (SECLD) at 13C–F.

CREDIBILITY

[43] Officer Tsholetsane was confident in the witness box and answered all the questions put to him clearly and confidently. He was not evasive. He was well dressed and had a good demeanour. He gave his evidence in a frank and forthright manner, notwithstanding intense cross-examination. He gave a full account of the events that transpired leading to the arrest and detention of the plaintiff. He admitted that he did not obtain the written statement of the witness in respect of the description of the perpetrators and the vehicle, and he also did not include the description, in his statement. He was a reliable witness and I did not find him to be bias.

[44] Officer Mohutsana made a good impression on the Court. He corroborated Officer Tsholetsane’s evidence in the following material respects:

44.1 that Officer Tsholetsane called him and told him that he had information from an informer pertaining to the suspects and they were at the tavern at approximately 02h00;

44.2 that there were three vehicles, he drove one vehicle, Officer Tsholetsane drove the second vehicle and the third vehicle was driven by Officer Ramoenyane, and the plaintiff was transported in the vehicle driven by Officer Ramoenyane;

44.3 the other two suspects, namely, Mr Rukero and Mr Molaodi, were conveyed in his vehicle;

44.4 Officer Tsholetsane did not transport any suspect as he was driving an open bakkie;

44.5 they drove to Madibogo Police Station where the two suspects were detained and thereafter they went to the Stella Police Station where the plaintiff was detained at approximately 04h00.

[45] The plaintiff did not make a good impression on the Court. He was often evasive and contradicted himself as set out hereinbelow:

45.1 he initially, in examination in chief, testified that he could not recall whether he went to work on the morning of the robbery, but later testified that he used his friend, Bushy’s vehicle to travel to work on the day in question. Further, in cross-examination, he admitted that he was not at work the week of 29 and 30 July 2009. He did not state what vehicle he was driving on the day of the robbery and did not answer the question when asked if he drove alone;

45.2 he also contradicted his evidence regarding the time when he went to the tavern on 01 August 2009. He testified that he went to the tavern “past 18h00 or 19h00” and later testified that he arrived at the tavern at 22h00. He further testified that he left the tavern with the police around “21h00 to 22h00”, and under cross-examination he said he remembered that it was 22h00 when they left the tavern;

45.3 he said that he only met his co-accused in the police vehicle on the way to the Magistrates’ Court, and later testified that he met them at the Stella Police Station;

45.4 he said he explained to Officer Tsholetsane who the white Condor belongs to and where the owner stays, but on his own version, he only spoke to Officer Tsholetsane on 04 August 2009, the day before they met in court.

[46] The witness, Bushy, corroborated the plaintiff’s version that the plaintiff came to see him on 30 July 2009 and requested the use of the vehicle, and that the plaintiff took possession of the vehicle on the Friday after he repaired it. However, the fact that Bushy in his statement said that the plaintiff came to see him on Wednesday, which is 29 July and coincidentally the date of the robbery, raises the question whether it was a coincidence or not.

H. THE LAW

[47] The defendant relies on the provisions of section 40(1)(b) of the CPA, to justify the arrest of the plaintiff without a warrant.

[48] Section 40(1)(b) of the CPA provides that:

“40(1) A peace officer may without warrant arrest any person-

. . .

(b) whom he reasonably suspects of having committed offence referred to in Schedule 1.”

[49] The jurisdictional facts which must exist before the power conferred by section 40(1)(b) of the CPA may be invoked are:

49.1 the arrestor must be a peace officer;

49.2 the arrestor must entertain a suspicion;

49.3 the suspicion must be that the suspect (the arrestee) committed an offence referred to in Schedule 1 (other than escaping);

49.4 the suspicion must rest on reasonable grounds.

[50] The defendant bore the onus to prove the jurisdictional facts on a balance of probabilities.

[51] When considering the jurisdictional facts, the following facts are common cause:

51.1 the members of SAPS who arrested the plaintiff are peace officers as contemplated in the definition of ‘peace officer’ in section 1(1) of the CPA, read with the provisions of section 40(1)(b) of the CPA;

51.2 the robbery in respect of which the plaintiff was arrested is a Schedule 1 offence;

51.3 Officer Tsholetsane arrested or caused the plaintiff to be arrested as he suspected him of being involved in the commission of the robbery.

[52] Hence, the only issue in dispute in relation to the jurisdictional facts is whether Officer Tsholetsane entertained a reasonable suspicion that the plaintiff was involved in the commission of the robbery, and if so, whether he appreciated that he has a discretion to arrest and exercised his discretion rationally.

REASONABLE SUSPICION

[53] Section 40(1) of the CPA requires the objective standard of a reasonable person, namely, whether a reasonable man would in the circumstances, have harboured the suspicion that the suspect has committed an offence referred to in Schedule 1 of the CPA.

[54] It has been stated Mabona & Another V Minister of Law and Order & Others 1988 (2) SA 654 (SE) at 658E–H, that:

“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.”

[55] Officer Tsholetsane relied on the following information when he formed the suspicion:

55.1 he relied on a description of the motor vehicle used in the commission of the robbery;

55.2 Officer Tsholetsane said a white Condor was mentioned by one of the witnesses when he questioned them. He could not recall the name of the witness. He said although the witness, Patrick, referred to a white Venture, he realised that the inhabitants of Stella and its environs find it difficult to distinguish between a Kombi, a Venture and a Condor, and he showed Patrick pictures of the aforesaid motor vehicles and Patrick pointed the picture of the Condor as depicting the type of vehicle that was used in the commission of the robbery;

55.3 he said a Toyota Condor is not a vehicle that is often seen in the area. He also viewed camera footage at a service station where a white Toyota Condor was visible;

55.4 Officer Tsholetsane gave his informer the features of one of the perpetrators and instructed his informer to be on the lookout for a white Condor with four male passengers who are not known in the area. His informer is a person who he has used on several occasions in the past. The informer contacted him on the evening of 01 August 2009, 3 days after the robbery, that the people who were involved in the robbery might be at the tavern in Setlagole. The informer pointed out the white Condor and the men who arrived in the vehicle who were seated in the tavern;

55.5 he relied on the plaintiff’s features. He said that one of the perpetrators was described as being short, stout and dark in complexion by a witness when he interviewed him. He said Patrick also described the perpetrator as short and fat;

55.6 the plaintiff described himself in cross-examination as dark in complexion, with a big body and short. His description is consistent with the description given by the witness;

55.7 the fact that Officer Tsholetsane arranged for an identification parade on the Monday following the plaintiff’s arrest supports both his suspicion to arrest and the exercise of his discretion, which is dealt with hereinbelow.

[56] It is common cause that the plaintiff was driving a white Toyota Condor on 01 August 2009 and the vehicle was parked outside the tavern at Setlagole, and the plaintiff was in the company of two men.

[57] Hence, the plaintiff fitted the description of one of the perpetrators, he was not from Setlagole and he was in the company of two other men. He was driving a Condor motor vehicle, which vehicle is not usually found in the area, and Setlagole is only 45–50km from Stroebelsrus where the robbery occurred. Furthermore, the plaintiff was identified three days after the robbery.

[58] Although there is no evidence to corroborate Officer Tsholetsane’s testimony that a white Condor was identified and that the one assailant was described as short, dark and stout, as stated supra, I found Officer Tsholetsane to be a credible witness, and his version to be probable. He gave a full account of the events that transpired leading to the arrest and was not evasive notwithstanding intense cross-examination. I do not accept that his evidence is false or a recent fabrication as submitted by counsel for the plaintiff, Ms Zwiegelaar.

[59] The probabilities are that the witnesses in the robbery described one of the assailants as short, dark and stout and that the assailants drove a white Condor vehicle, as Officer Tsholetsane would not have given his informer the description of the suspect and told him to be on the lookout for a white Condor.

[60] It is improbable that Officer Tsholetsane only arrived after the vehicle was searched and did not speak to the plaintiff as Officer Tsholetsane described in detail what he observed on his arrival at the tavern and what steps he took inside and outside the tavern. Further, Officer Mohutsana corroborated Officer Tsholetsane’s evidence as set out supra.

[61] It is common cause that the plaintiff and the two suspects were at the identification parade and were taken with the plaintiff to court. I accept the evidence of Officers Tsholetsane and Mohutsane that the plaintiff and the two suspects were arrested in the early hours of Sunday morning, and the plaintiff was detained in Stella Police Station while the other two suspects were detained at Madibogo Police Station.

[62] I am of the view, from the aforegoing facts and circumstances relied upon by Officer Tsholetsane, that the decision to arrest the plaintiff was based on reasonable grounds and is objectively justifiable, that a reasonable man in Officer Tsholetsane’s position, and possessed of the same information, would have suspected the plaintiff of committing robbery.

[63] Accordingly, all four jurisdictional facts laid down in section 40(1)(b) are satisfied.

DISCRETION

[64] It is clear from the wording of paragraph (b) of section 40(1) of the CPA that it is only when all four of the jurisdictional facts are satisfied that the peace officer may invoke the power conferred upon him by the aforesaid section, namely, to, in his discretion, arrest the suspect. See Duncan v Minister of Law and Order 1986 (2) SA 805 (A).

[65] The peace officer is not obliged to effect an arrest and exercise a discretionary power, which power has to be exercised within the limits of section 40(1)(b) and Chapter 2 of the Constitution of the Republic of South Africa Act 56 of 1996 (“the Constitution”), which contains the Bill of Rights. See Minister of Safety and Security v Sekhoto 2011 (1) SACR 315 (SCA) at 321C, paragraph [28], wherein Harms DP stated that:

“[28] Once the required jurisdictional facts for an arrest, whether in terms of any paragraph of s 40(1) or in terms of s 43 are present, a discretion arises. The question whether there are any constraints on the exercise of discretionary powers is essentially a matter of construction of the empowering statute in a manner that is consistent with the Constitution. In other words, once the required jurisdictional facts are present the discretion whether or not to arrest arises. The officer, it should be emphasised, is not obliged to effect an arrest. This was made clear by this court in relation to s 43 in Groenewald v Minister of Justice (1973 (3) SA 877 (A) at 883G–884B).”

[66] It is clearly established that the power to arrest conferred upon peace officers by section 40(1)(b) of the CPA may be exercised only for the purpose of bringing the suspect before court and that the exercise of the discretion will be unlawful if the arrestor knowingly invokes the power to arrest for any other purpose. See Minister of Safety and Security v Sekhoto supra at 327G and 331C, paragraps [29] and [42].

[67] In Minister of Safety and Security v Sekhoto supra at paragraph [34], the Supreme Court of Appeal (“the SCA”) referred to the decision of Shidiack v Union Government (Minister of the Interior) 1912 AD 642 at 641–652, where the Court held:

“Now it is settled law that where a matter is left to the discretion or the determination of a public officer, and where his discretion has been bona fide exercised or his judgment bona fide expressed, the Court will not interfere with the result. Not being a judicial functionary no appeal or review in the ordinary sense would be; and if he has duly and honestly applied himself to the question which has been left to his discretion, it is impossible for a Court of Law either to make him change his mind or to substitute its conclusion for his own. . . . There are circumstances in which interference would be possible and right. If for instance such an officer had acted mala fide or from ulterior and improper motives, if he had not applied his mind to the matter or exercised his discretion at all, or if he had disregarded the express provisions of a statute – in such cases the Court might grant relief. But it would be unable to interfere with a due and honest exercise of discretion, even if it considered the decision inequitable or wrong.”

The Court supra, accepted that these traditional grounds of review should be used to test the legality of discretion to arrest and held further that as the above decision predates the Bill of Rights, that the exercise of discretion must be objectively rational.

[68] The SCA referred, in Minister of Safety and Security v Sekhoto supra at 330D, paragraph [38], to a general rule that any discretion must be exercised in good faith, rationally and not arbitrarily and held, at 330E paragraph [39], that peace officers are entitled to exercise the discretion conferred upon them by section 40(1)(b) of the CPA as they see fit, provided that they stay within the bounds of rationality. See Minister of Safety and Security v Katise (328/12) [2013] ZASCA 111 (16 September 2013) at paragraph [17].

[69] If all four of the jurisdictional facts laid down in section 40(1)(b) of the CPA have been satisfied by the arrestor, the onus to establish that the discretion conferred upon the peace officer by that section was not rationally exercised by the arrestor is on the suspect. See Minister of Safety and Security v Sekhoto supra at 334B–D, paragraph [53]; Minister of Law and Order v Dempsey 1988 (3) SA 19 (A) at 38F–H.

[70] Harms DP at paragraph [25] said that:

“[25] It could hardly be suggested that an arrest under the circumstances set out in s 40(1)(b) could amount to a deprivation of freedom which is arbitrary or without just cause in conflict with the Bill of Rights. A lawful arrest cannot be arbitrary.”

[71] Harms DP in Minister of Safety and Security v Sekhoto supra further stated at paragraph [32]:

“[44] While the purpose of arrest is to bring the suspect to trial the arrestor has a limited role in that process. He or she is not called upon to determine whether the suspect ought to be detained pending a trial. That is the role of the court (or in some cases a senior officer). The purpose of the arrest is no more than to bring the suspect before the court (or the senior officer) so as to enable that role to be performed. It seems to me to follow that the enquiry to be made by the peace officer is not how best to bring the suspect to trial: the enquiry is only whether the case is one in which that decision ought properly to be made by a court (or the senior officer). Whether his decision on that question is rational naturally depends upon the particular facts but it is clear that in cases of serious crime – and those listed in Schedule 1 are serious, not only because the Legislature thought so – a peace officer could seldom be criticized for arresting a suspect for that purpose. On the other hand there will be cases, particularly where the suspected offence is relatively trivial, where the circumstances are such that it would clearly be irrational to arrest. This case does not call for consideration of what those various circumstances might be. It is sufficient to say that the mere nature of the offences of which the respondents were suspected in this case ─ which ordinarily attract sentences of imprisonment and are capable of attracting sentences of imprisonment for 15 years ─ clearly justified their arrest for the purpose of enabling a court to exercise its discretion as to whether they should be detained or released and if so on what conditions, pending their trial.”

(Own emphasis)

[72] The validity of an arrest is not affected by the fact that the arrestor, in addition to bringing the suspect before court, wishes to interrogate or subject him to an identification parade or blood tests in order to confirm, strengthen or dispel the suspicion. See Duncan v Minister of Law and Order supra at 818B–C; Minister of Safety and Security v Sekhoto supra at paragraph [31].

[73] An arrest made without a warrant under section 40(1)(b) of the CPA is not unlawful where the arrestor entertains the required reasonable suspicion, but intends to make further enquiries after the arrest before finally deciding whether to proceed with a prosecution, provided it is the intention throughout to comply with section 50 of the CPA. See Duncan v Minister of Law and Order 1986 (2) 805 (AD) at 806–820; Rowan v Minister of Safety and Security N.O [2011] 3 All SA 443 (GSJ).

[74] Officer Tsholetsane testified that the plaintiff was transported separately from the other two suspects and detained at a different police station, and the reason was that the plaintiff was cooperating and the other two were not, and further that they did not want the suspects to influence each other. Officer Tsholetsane exercised the discretion to arrest the plaintiff and keep him separated from the other suspects to prevent them from influencing each other.

[75] Officer Tsholetsane testified that the plaintiff was not taken to Court on Monday as they were still conducting investigations. He said the plaintiff and the other two accused were informed on Monday, 03 August 2009 that an identification parade was going to be held on 05 August 2009. The plaintiff was taken to Court after the identification parade.

[76] Officer Tsholetsane stated that he knew he had a discretion and exercised his discretion to arrest the plaintiff. As stated supra, I found Officer Tsholetsane to be a credible witness. Accordingly, I accept his testimony that he exercised a discretion when arresting the plaintiff, and arrested the plaintiff according to the circumstances of the crime investigation. He had interviewed the witnesses and had a description of the features of one of the perpetrators of the robbery, and the vehicle used. He did not detain the suspects together as he feared they would influence each other and he intended to arrange an identification parade.

[77] Robbery is not only a Schedule 1 office that attracts a minimum sentence of 15 years imprisonment for a first offender in terms of section 51(2)(a)(i) of the CPA. It is also an offence referred to in Part II of Schedule 2 of the CPA, where a ‘police bail’ does not apply. Once arrested, the plaintiff could only be released on bail by a court if satisfied that exceptional circumstances exist which justify his release on bail. Officer Tsholetsane, in his evidence, described the offence of robbery as a trio offence, which is in the same category of other serious crimes.

[78] Hence, Officer Tsholetsane’s intention was to take the plaintiff to Court after conducting the identification parade and for the Court to ultimately decide whether the plaintiff should be granted bail or be detained pending the trial. Accordingly, the exercise of the discretion was rational, given the seriousness of the offence and the arrest was neither arbitrary nor without just cause.

SECTION 50

[79] Section 50 of the CPA deals with the procedure after arrest. The provisions of subsections (1) and (2) provide:

“50. Procedure after arrest

(1)(a) Any person who is arrested with or without warrant for allegedly committing an offence, or for any other reason, shall as soon as possible be brought to a police station or, in the case of an arrest by warrant, to any other place which is expressly mentioned in the warrant.

(b) A person who is in detention as contemplated in paragraph (a) shall, as soon as reasonably possible, be informed of his or her right to institute bail proceedings.

(c) Subject to paragraph (d), if such an arrested person is not released by reason that-

(i) no charge is to be brought against him or her; or

(ii) bail is not granted to him or her in terms of section 59 or 59A, he or she shall be brought before a lower court as soon as reasonably possible, but not later than 48 hours after the arrest.

(d) If the period of 48 hours expires-

(i) outside ordinary court hours or on a day which is not an ordinary court day, the accused shall be brought before a lower court not later than the end of the first court day;

(ii) or will expire at, or if the time at which such period is deemed to expire under subparagraph (i) or (iii) is or will be, a time when the arrested person cannot, because of his or her physical illness or other physical condition, be brought before a lower court, the court before which he or she would, but for the illness or other condition, have been brought, may on the application of the prosecutor, which, if not made before the expiration of the period of 48 hours, may be made at any time before, or on, the next succeeding court day, and in which the circumstances relating to the illness or other condition are set out, supported by a certificate of a medical practitioner, authorise that the arrested person be detained at a place specified by the court and for such period as the court may deem necessary so that he or she may recuperate and be brought before the court: Provided that the court may, on an application as aforesaid, authorise that the arrested person be further detained at a place specified by the court and for such period as the court may deem necessary; or

(iii) at a time when the arrested person is outside the area of jurisdiction of the lower court to which he or she is being brought for the purposes of further detention and he or she is at such time in transit from a police station or other place of detention to such court, the said period shall be deemed to expire at the end of the court day next succeeding the day on which such arrested person is brought within the area of jurisdiction of such court.

(2) For purposes of this section-

(a) 'a court day' means a day on which the court in question normally sits as a court and 'ordinary court day' has a corresponding meaning; and

(b) 'ordinary court hours' means the hours from 9:00 until 16:00 on a court day.”

[80] In Mashilo & Another v Prinsloo [2012] ZASCA 146 (28 September 2012), the SCA at paragraph [11] held that:

“[11] Section 50 was designed, even before the advent of the new constitutional dispensation, to encroach in the least restrictive manner on a potential accused’s right to freedom. Subsection 50(1)(a) is the beginning of steps to be taken to expedite the workings of the criminal justice system. First, an arrested person has to be brought to a police station as soon as possible after his or her arrest. Second, that person is required, in terms of s 50(1)(b) to be informed of his or her right to institute bail proceedings ‘as soon as reasonably possible’. Section 50(1)(c)(ii) requires that an arrested person be brought before a lower court ‘as soon as reasonably possible’, but not later than 48 hours after the arrest. This is to ensure court oversight and to enable a bail application to be brought.”

[81] It is clear from section 50(1)(d) of the CPA that an arrested person must be brought to court within 48 hours, and if the 48 hours within which he must in terms of this section be brought before court expires outside normal court hours, or on a day which is not a normal court day, he should be brought before a court during and not later than the end of the first court day after his arrest.

[82] Officer Tsholetsane testified that if a suspect is arrested on a Saturday or Sunday, the 48 hour period starts to run on Monday at 08h00 and that the plaintiff was taken to court on Wednesday, within the 48 hour period. It is apparent that Officer Tsholetsane misundertood the provisions of section 50 of the CPA.

[83] The plaintiff was arrested at approximately 03h00 on Sunday, 02 August 2009. Hence, the 48 hour period starts to run from the time of arrest and expires at 03h00 on Tuesday. Hence, the plaintiff should have been taken to Court on Tuesday, 04 August 2009 before 16h00. The plaintiff was taken to court on Wednesday, 05 August 2009.

[84] Although Officer Tsholetsane entertained a reasonable suspicion that the plaintiff committed robbery and properly exercised his discretion to arrest with the intention of bringing the plaintiff to justice within the 48 hour period, he failed to bring the plaintiff to Court within 48 hours as prescribed under section 50.

[85] Although the detention of the plaintiff within the 48 hours is justified and lawful, the plaintiff’s continued detention after the 48 hours expired, before his first appearance in Court and was accordingly unlawful. The plaintiff was unlawfully detained for the period exceeding the 48 hours, which is from 16h00 on Tuesday, 04 August 2009 until 09h00 on Wednesday, 05 August 2009, which is 17 hours.

[86] Mrs Zwiegelaar submitted that the period after the plaintiff’s first appearance in Court, on 05 August 2009, until his release on bail on Wednesday, 12 August 2009 at 13h45 was also unlawful.

[87] In Minister of Safety and Security v Sekhoto supra at paragraph [42], Harms DP stated that:

“[42] . . . Once an arrest has been effected the peace officer must bring the arrestee before a court as soon as reasonably possible and at least within 48 hours (depending on court hours). Once that has been done the authority to detain that is inherent in the power to arrest has been exhausted. The authority to detain the suspect further is then within the discretion of the court.”

[88] After the plaintiff appeared in court on 05 August 2009, the matter was postponed to 12 August 2009 for further investigation and for the hearing of the plaintiff’s bail application as the State indicated that it intended to oppose bail. Hence, after the plaintiff appeared in court on 05 August 2009, the discretion to detain the plaintiff or grant him bail vested in the Court and not the defendant. See Hash & Others v Honourable Minister of Safety and Security [2011] JOL 27576 (ECP) at paragraph 76–78.

I. DAMAGES

[89] The next consideration is what damages to award the plaintiff in respect of the unlawful detention for the 17 hours that the plaintiff was unlawfully deprived of his freedom.

[90] The SCA in Minister of Safety and Security v Seymour 2006 (6) SA 320 (SCA), referred to the judgment of Protea Assurance Co Ltd v Lamb 1971(1) SA 530 (A) at 535H–536B, where the court held that in the assessment of general damages the facts of a particular case must be looked at as a whole and the quantum of damages has to be determined on such facts.

[91] The plaintiff’s personal circumstances, as expressed by counsel for the defendant, are the following:

91.1 he is 32 years old and is presently unemployed. His highest school qualification is Standard 8;

91.2 at the time of his arrest, he was 27 years old and employed as a truck driver, earning a net salary of R5 000.00 per month;

91.3 he lost employment as a result of his arrest and detention. He secured employment as a truck driver for the Dreyer Family Trust on 01 December 2009 and was retrenched on 08 February 2013;

91.4 the owner of the tavern is his friend and he is known in Setlagole as the parental home of his wife is there. He felt himself aggrieved by the fact that he was arrested in front of the owner of the tavern and the patrons thereof and felt that his dignity has been impaired as they used to question him about his arrest;

91.5 he was kept in a police cell at Stella Police Station together with ten other detainees. He experienced his detention as difficult as it was cold and he only had a pair of socks to wear, as his shoes were taken from him by the members of the SAPS at Stella before his detention and only returned to him a few days later. He had to sleep on the cement floor of the cell as the only bedding that he received were two blankets, of which he used one to cover himself and the other as pillow as he could not sleep without a pillow;

91.6 he became ill when he was detained;

91.7 although Bushy, his wife and other members of his family came to Stella Police Station to visit him, they were not allowed to do so. He was only allowed to be visited after his first appearance in court on Wednesday, 05 August 2009;

91.8 he was not allowed to make or receive any phone calls until after his first appearance in court.

[92] Factors which traditionally play a role in the assessment of general damages are:

92.1 the circumstances under which the deprivation of liberty took place;

92.2 the presence or absence of improper motive or malice on the part of the defendant;

92.3 the harsh conduct of the defendant;

92.4 the nature and duration of the deprivation of liberty;

92.5 the conditions under which the plaintiff was detained;

92.6 the status, standing, age and health of the plaintiff;

92.7 the extent of the publicity given to the deprivation of liberty;

92.8 the presence or absence of an apology or satisfactory explanation of the events by the defendant;

92.9 awards in previous compatible cases;

92.10 the fact that in addition to physical freedom, other personality interests such as honour and good name have been infringed;

92.11 the high value of the right to physical liberty;

92.12 the effect of inflation; and

92.13 the fact that the actio iniuriarum also has a punitive function.

[93] As I have found the arrest and detention within the 48 hour period to be lawful, and because the damages that I am awarding are only for the period exceeding the 48 hours, there are several factors mentioned supra, which are not relevant.

[94] Counsel for the plaintiff and defendant referred to several cases in their respective heads of argument.

[95] In Seria v Minister of Safery and Security & Others 2005 (5) SA 130 (C), the Cape Provincial Division awarded a professional man who was arrested and detained in a police cell for about 24 hours, R50 000.00. The Court held that “there is no fixed formula for the assessment of damages for non-patrimonial loss. It is recognised that a court has the power to estimate an amount ex aequo et bono and consequently enjoys a wide discretion with fairness as the dominant norm.”

[96] In Louw & Another v Minister of Safety and Security & Others 2006 (2) SACR 178 (T), the Court awarded a sum of R75 000.00 for each plaintiff, where the plaintiffs were wrongfully and unlawfully arrested and detained for a period of 20 hours.

[97] In Minister of Safety and Security v Seymour supra the SCA has dealt with the case of a 63 year old man who had been unlawfully arrested and detained for five days. He was awarded damages in the amount of R500 000.00 by the Witwatersrand Local Division. On appeal, the SCA after considering the fact that he had free access to this family and doctor throughout his detention at the police station, that he had suffered no degradation beyond that that is inherent in being arrested and detained, that after the first period of about 24 hours he had spent the remainder of his detention in a hospital bed at a clinic and that although the experience had been traumatic and distressing it warranted no further medical attention after his release concluded in paragraph [21] of the judgment that an appropriate award is the sum of R90 000.00 and consequently reduced the award accordingly.

[98] In a matter arising from the North West Division of Dirk Renier Labuschagne v Minister of Safety and Security & Another (1013/2008) (29 September 2011), the plaintiff, who was involved in a motor vehicle collision, was unlawfully arrested and detained for a period of ten hours in a hospital ward behind bars, the Court awarded an amount of R90 000.00 to the plaintiff.

[99] In Mvu v Minister of Safety and Security & Another 2009 (6) SA 82 (GSJ), Willis J acknowledged the conservative approach of Minister of Safety and Security v Seymour supra and awarded damages in the sum of R30 000.00 for a day’s detention.

[100] Landman J, in this Division, awarded an amount of R140 000.00 to the plaintiff in the matter of Emmanuel Tlhaganyane v Minister of Safety and Security (1661/2009) (14 February 2013) as compensation for his unlawful arrest and detention for about 19 hours by members of the SAPS.

[101] In Olivier v Minister of Safety and Security & Another 2009 (3) SA 434 (W), the Court awarded a sum of R50 000.00, where the plaintiff was wrongfully and unlawfully arrested and detained for a period of 5–6 hours.

[102] In Minister of Safety and Security & Others v Ndlovu 2013 (1) SACR 1 (SCA), the plaintiff was detained for two days and the Court awarded him damages in the amount of R55 000.00.

[103] In Motshwane & Others v Minister of Safety and Security (449–454/2011) (12 December 2013), North West High Court, the five plaintiffs were arrested and detained for five days. The Court granted them R240 000.00 each.

[104] In Makuke v Minister of Safety and Security (833/2006) (10 August 2007), North West High Court, the plaintiff was awarded R120 000.00 for an unlawful arrest and detention of eight days.

[105] In arriving at a reasonable amount of damages to compensate the plaintiff, I have taken cognisance of the following:

105.1 the plaintiff was only allowed to make and receive calls and receive visitors after his first appearance in Court;

105.2 it was cold in the police cell and the plaintiff had to sleep on the cement floor with two blankets;

105.3 he was walking in his socks as his shoes were taken from him when he was detained;

105.4 he became ill in the cells and consulted with a doctor after his release from detention.

[106] I have also noted that the plaintiff admitted that he did not request more bedding and did not request medical assistance when he became ill.

[107] Having due regard to all the relevant considerations, facts and circumstances, and authorities cited supra, I am of the view that the amount of R36 000.00 is reasonable compensation for the plaintiff’s depravation of his freedom beyond the 48 hour period.

[108] As the plaintiff was only partly successful, interest will run from the date of judgment.

J. ORDER

[109] In the result, I make the following order:

a) The defendant is ordered to pay the plaintiff:

i) The sum of R36 000.00;

ii) Interest on the aforesaid sum at the prescribed rate from the date of judgment to date of payment;

iii) Costs of suit.

N. GUTTA

JUDGE OF THE HIGH COURT

APPEARANCES

DATE WHEN HEADS OF ARGUMENT

WERE MADE AVAILABLE TO JUDGE : 31 JULY 2014

DATE OF JUDGMENT : 30 OCTOBER 2014

COUNSEL FOR PLAINTIFF : ADV C. ZWIEGELAAR

COUNSEL FOR DEFENDANT : ADV T. SEBOKO

ATTORNEYS FOR PLAINTIFF : NIENABER & WISSING ATTORNEYS

(Instructed by ABEL BESTER INC.)

ATTORNEYS FOR DEFENDANT : THE STATE ATTORNEY

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