IN THE HIGH COURT OF SOUTH AFRICA (GAUTENG DIVISION, PRETORIA) JUDGMENT. [1] The Plaintiff claims damages from the Defendants, jointly and severally,

Transcription

1 / / IN THE HIGH COURT OF SOUTH AFRICA /MF (GAUTENG DIVISION, PRETORIA).p. i::. ~,.. ~~', 5 t."v""' (I) REPORTABLE: {yes) /,-0 (2) OF INTEREST T~THER JUDGES: YJip./~ (3) REVISED... ~.... Case No: 2577/2014 In the matter between: GUGULETHU MLILO Plaintiff and THE MINISTER OF POLICE THE MINISTER OF JUSTICE First Defendant Second Defendant JUDGMENT PRINSLOO, J [1] The Plaintiff claims damages from the Defendants, jointly and severally, flowing from her alleged unlawful arrest and detention by employees of the

2 2 two Defendants, acting within the course and scope of their employment. [2] Before me, Mr. T.P. Kruger SC appeared for the Plaintiff and Mr. B.N. Mbiko appeared for the Defendants. INTRODUCTION: [3] It is common cause that the Plaintiff, a young lady, in the company of her younger sister and her mother, was arrested and detained by police officers, acting in the course and scope of their employment, at the Musina border post in the early hours of Wednesday, 3 July [4] After she appeared briefly in the Musina Magistrates Court the next day, and after she was detained in the police cells for another day, she was transferred by police officers to Middelburg, Mpumalanga on the basis that a warrant for her arrest had been issued in January 2013 in Ermelo; it is common cause that she was then detained in the Middelburg cells until Tuesday 9 July 2013 when she was released without ever appearing in Court and after the investigating officer had informed her that the charges had been withdrawn. She was therefore detained for six nights. [5] The case that was originally presented on behalf of the Plaintiff was that the warrant of arrest was obtained under false pretences in the sense that the then

3 3 investigating officer, Warrant Officer Lombard, did not follow up all the available leads and information and, had he done so, would have realised that the Plaintiff was not the suspected perpetrator of alleged fraud and forgery deemed to have been committed by her. The case was advanced on the basis that if the full picture has been presented to the Learned Magistrate in Ermelo, the warrant of arrest would not have been issued and that the conduct of the Warrant Officer had resulted in the unlawful arrest and detention and the damages flowing there from. [6] After the conclusion of the evidence before me in February 2017, the counsel for the Plaintiff, in view of evidence given on behalf of the Defendant during the trial, and during closing argument, applied for an amendment of the Particulars of Claim, essentially, and at amending the original allegation that the Plaintiff was arrested on a charge of fraud with a warrant of arrest that was issued after the investigating officer had made a false statement as I earlier explained, by replacing that allegation with one to the effect that the arresting officer in Musina, then Constable (now Sergeant) Mphalehle, arrested the Plaintiff on a charge of fraud without a warrant of arrest after he (Mphalehle) had telephonically obtained knowledge of the existence of a warrant of arrest. [7] The application for an amendment was opposed, but granted by me with an appropriate costs order.

4 4 [8] At that stage, the Defendants did not ask for a postponement. [9] Further, during closing argument, counsel for the Plaintiff indicated that there would be yet another amendment, flowing from the earlier amendment, to the effect that when Mphalehle effected the arrest, the warrant of arrest had not been telegraphically transmitted to him, as a result whereof the arrest was unlawful and in contravention of section 45 of the Criminal Procedure Act, no. 51 of In addition, it would be pleaded, by seeking an appropriate amendment, that, in effecting the arrest, Mphalehle failed to comply with the provisions of section 39(2) of Act 51 of 1977 by failing to properly inform the Plaintiff of the cause of the arrest. [10] After hearing argument, the matter was postponed sine die on the basis that the Plaintiff was to pay the wasted costs occasioned by the postponement and the further amendment, if sought, and it was understood that the Defendants would also be given leave to amplify the Plea, if advised to do so. [ 11] After the amendments were effected to the Particulars of Claim and the Plea ' the matter only came before me again on 9 October On that occasion,

5 5 the Defendants were also permitted to reopen their case and to recall Sergeant Mphalehle. [12] It is useful to quote the new paragraphs in the amended Particulars of Claim which are relevant for present purposes, and the Plea thereto in the amended Plea: The amended Particulars of Claim: "3.1 On or about 3 July 2013 at 03h00 at Beitbridge Border Post in Limpopo Province, a member of the South African Police Service, one Constable (now Sergeant) Mphalehle, arrested the Plaintiff on a charge of fraud without a warrant of arrest, after he (Mphalehle) had telephonically obtained knowledge of the existence of a warrant of arrest. 3.2 When Mphalehle affected (sic) the arrest, the warrant of arrest had not been telegraphically transmitted to him as a result whereof the arrest was unlawful and in contravention of section 45 of the Criminal Procedure Act, 51 of In addition, in effecting the arrest, Mphalehle failed to comply with the provisions of section 39(2) of Act 51 of

6 by failing to properly inform her of the cause of the arrest." (I add, that the earlier allegations that the then investigating officer had not properly investigated the case and on the strength thereof obtained a warrant, were not abandoned in the amended Particulars of Claim.) The amended plea: "Ad paragraph 3.1: 1.1 The Defendant admit the arrest of the Plaintiff by Constable Mphalehle on a charge of fraud and denied that it was without a warrant of arrest and maintained its version that the arrest was authorised in terms of an existing warrant of arrest. 1.2 The Defendant pleads further that the warrant is attached in the papers before Court. Ad paragraph 3.2: 2.1 The Defendant admits that at the time of arrest the warrant of arrest had not been transmitted in terms of

7 7 Section 45, but still denies any unlawfulness on the part of the Plaintiff and put the Plaintiff to the proof thereof 2. 2 The Defendant pleads further that it was not in dispute that the warrant for the arrest of the Plaintiff existed. Ad paragraph 3.3: 3.1 The contents of this paragraph are denied and the Applicant (sic) is put to the proof thereof The Defendant pleads further that after it was confirmed telephonically by the Ermelo Police Station that the Plaintiff was informed that she a wanted (sic) and was arrested for fraud and forgery. 3.2 The Defendant pleads further that not at any stage has the Plaintiff ever ask (sic) to see the warrant of arrest. " [13] It is convenient to quote the text of sections 39(2) and 45(1): "39.2 The person effecting an arrest shall, at the time of effecting the arrest or immediately after effecting the arrest, inform the arrested person of the cause of the arrest or, in the case of an arrest effected by virtue of a warrant, upon

8 8 demand of the person arrested hand him a copy of the warrant. " "45(1) A telegraphic or similar written or printed communication from any magistrate, justice or peace officer stating that a warrant has been issued for the arrest of any person, shall be sufficient authority to any peace officer for the arrest and detention of that person." [14] Allegations contained in the Particulars of Claim regarding the quantum of the alleged damages suffered, were met, by and large, with a bare denial in the Plea. [ 15] I turn to a brief summary of the evidence. An effort will be made to limit the summary to issues directly relevant for purposes of deciding the disputes. BRIEF SUMMARY OF THE EVIDENCE: (i) Gugulethu Mlilo (the Plaintiff): [16] At the time of her arrest on 3 July 2013 she was resident at Olievenhoutbosch in the Pretoria district. [17] She gave evidence in court that she was staying with her mother.

9 9 [18] On 3 July 2013 she was on her way to Zimbabwe with her mother and sister. They went through the Musina border gate. They got there at about O 1h00. [19] When their passports were checked and her name observed, the party was asked to stand aside because of a "slight problem". No details were specified. [20] After a few minutes two police officers came and took them to the back offices. There she was told that the police had been looking for her since She denied any knowledge of what they were talking about. They said that they had a warrant for her arrest which was issued in Ermelo. She asked the police to call Ermelo to hear what it was all about, but the police did not want to give her any information. They phoned Ermelo, but there was no answer. [21] No one showed her the warrant. [22] She was booked into a cell with fifteen people. She was given no bedding or a bed. The condition of the cell was that it was very dirty. There were fifteen ladies, "most of them" were having their monthly periods. There was only one toilet for use by all of them. The condition of the toilet was that it was

10 10 dirty and the water was "on and off''. There was no washbasin. There was no tap to drink water. They drank from the shower. [23] She was taken to court on that Wednesday morning, 3 July [24] At Court she was told that the case would be heard in Ermelo. She asked for bail, but that was denied by the Magistrate. [25] At this point it is worth making the following remarks: No evidence was tendered on behalf of the Defendants to rebut the Plaintiffs testimony about the conditions under which she was detained in those particular cells. No evidence was tendered to rebut the very brief evidence about what happened in court or to explain why bail was refused. [26] She was taken back to the police cells from the court and stayed there until Friday 5 July. At about 20h30 to 21h00 on the Friday she was called by the police and they told her that she would be transported to Middelburg. They arrived there at approximately 01h00. She was transported in a passenger vehicle manned by two male police officers. She was first taken to the

11 11 Musina Police Station where she was placed in the back of a police van with three other people. [27] At Middelburg at approximately O 1h00 the two police officers handed her over to other police officers who would show her where she would be sleeping overnight. Before that the police started reading documents they received from the other police officers and then asked her what she was doing in Musina and whether she was a foreigner I Zimbabwean. She responded that she didn't think that that was relevant. They opened the door to her room close to the office used by the police officers and the room was ''full of blood and blood clots ". That was where she spent the rest of the night. There were no blankets and there was no furniture in the room. There was no toilet and no tap. I add that there was no evidence in rebuttal offered on behalf of the Defendants about these conditions of detention. [28] On Saturday morning she was taken to the cells and that is where she spent the rest of the weekend. She was alone in the cells. She was not given any food or blankets and there was no furniture. There was a toilet but it could not be used because it was covered with a blanket. She used a plastic bag to relieve herself. She got food from an uncle who brought some food to her.

12 12 Again, no evidence was offered in rebuttal of these allegations about the conditions of detention. [29] On the Monday morning a lady came and told her to cone along, they were going to court. They did not go to Court. She asked the lady whether she could use the cell phone because her understanding was that she was supposed to be in court on the Tuesday, not the Monday. She wasn't given the cell phone to use. The lady asked her if she wanted to make a statement and she refused. Later she made a statement when she was handed over to the investigators. It appears that the statement was deposed to before a commissioner of oaths, Captain Johanna Cathrina Coetser, of the Middelburg Commercial Crime Investigation Unit. The statement is Exhibit "Cl5". It is dated Tuesday 9 July [30] In the statement the Plaintiff offered some information disputing allegations of fraud and forgery, which evidently had been made against her. In brief, it amounts thereto that in 2010, just after the World Cup, someone met her and offered her some work at remuneration. He asked for her ID document to present to the prospective employer and disappeared with the document. She also denied ever opening a certain bank account at ABSA Bank and in the course of her further evidence, denied having entered into a lease agreement

13 13 at a stage before the ID document was stolen and disputed the signature on the lease agreement. [31] Exhibit "C 1 7" is a statement by one Nk:ambule, purporting to be a police officer in Middelburg, whom she indicated she didn't know. Nk:ambule referred to her uncle as Mandia Moyo (which she admitted to be correct) and her bpyfriend, one Norman, which information she also admitted. Nothing turns on this for present purposes. [32] Exhibit "C 18" is a notice of rights in terms of the Constitution, purported to have been signed at Beit Bridge Police Station or border post at 03h40 on 3 July 2013, signed by the Plaintiff and purporting to contain the usual warning in terms of the Constitution and informing her of her rights and the fact that she was being detained for fraud and forgery. She did not dispute the authenticity of this document. She said she was given "C 18" when she was arrested in Musina. [33] Exhibit "Cl9" is a statement she made in Middelburg earlier on 9 July 2013 when she indicated that she was not willing to make a statement. It also appears from the statement that she indicated that she wished to consult with a legal practitioner. This never happened. She later made the other statement voluntarily before Captain Coetser, as I attempted to illustrate.

14 14 [34] On the 9th of July, the Tuesday, Captain Coetser took her to Ermelo. They went into a court building and she was told to wait in an office. The Captain said she wanted to speak to the Prosecutor. Later Captain Coetser came back (after about an hour) and said "the case was dismissed". The Captain phoned the Plaintiffs uncle to come and collect her. She did not appear in court. [35] Her evidence of what happened in Ermelo remains undisputed. [36] She was subjected to extensive cross-examination. I never got the impression that she was in any way discredited. I considered her to be a strong and impressive witness. [37] At the border post; when her passport was initially kept, she was not told what the problem was or that she was under arrest. Later, in the private area where she was taken by the police officer, she was told that there was a warrant for her arrest. When she asked what for, the police said that they did not know, it was an Ermelo case, that is why she asked them to call Ermelo to find out what the charge was. No one answered the phone at Ermelo. She said that they told her that she could not be released because she had been on the wanted list since They could not or would not tell her what she was wanted for. She was not questioned about anything at Musina.

15 15 [38] When they arrived in Middelburg, she was also not told what she had been arrested for. Ultimately the investigating officer (presumably Captain Coetser) told her what the case was about. This was on the Monday the 8th of July. That was when she made the explanatory statement about the alleged fraud and forgery as I have explained. [39] She was denied access to a lawyer and also the opportunity to contact her family. [ 40] The version of Mphalehle was put to her. Inter alia it was put to her that Mphalehle called the Ermelo police to enquire whether the Plaintiff was still on the wanted list. He spoke to Warrant Officer Ndimande and Captain Schmulien of Ermelo. She insisted that the telephone was not answered by the Ermelo police. She could not comment about what Mphalehle would say about the existence of a warrant of arrest. [ 41] It was put that Mphalehle would say that when his shift ended he handed her over to another officer. [42] She was cross-examined at length about the evidence of Warrant Officer Lombard about the whole fraud and forgery investigation. I do not propose dealing therewith because the charges were withdrawn and these details are not relevant for present purposes, because the charges were withdrawn or "the

16 16 case was dismissed" and her explanatory statement to Captain Coetzer was not contested by the defence. [43] In re-examination she reaffirmed her evidence in her statement to Captain Coetzer that the "lease agreement" she allegedly entered into fraudulently was unknown to her and the signature was not hers. [ 44] After the re-examination and in further cross-examination she testified for the first time about the fact that she was also, in preparation for this litigation, examined by clinical psychologist, Dr. Kobus Truter, whose report, dated 19 March 2015, forms part of the papers. He found that her ordeal with the arrest and detention resulted in initial severe symptoms of depression, which abated over time but she was left with an ongoing post-traumatic stress syndrome and would benefit from psychological treatment. The cost of this treatment was also calculated by this expert. [ 45] However, Dr. Truter was not called to testify and his expert evidence summary filed in terms of Rule 36(9) together with his report, remained in dispute at the pre-trial conference. [46] After the Plaintiffs testimony, her case was closed, whereupon the Defendants applied for absolution from the instance. The application was refused.

17 17 (ii) James Makubatjatji Mphalehle: [ 4 7] He held the rank of Sergeant and in 2013, when this incident occurred, he was a Constable. [48] On 3 July 2013 he was stationed at Beit Bridge during the night shift. [ 49] On 3 July 2013 he was posted at "Movement Control Centre " monitoring the printer, as he called it. That is where details of wanted suspects are recorded. [50] At 02h40 there was "a hit" involving the Plaintiff. This is recorded when the passport is stamped. He went to the "suspect" but cannot remember if it was a male or a female. The immigration officer pointed the person out to him. He took her along to his office. He explained to her that she had been the subject of "a hit". He asked her if she had ever "done anything" at a place called Ermelo, which she denied. [51] There was some problem with proper communication between the witness and the interpreter. When it recurred more than once, Mphalehle agreed to testify in English.

18 18 [52] The witness said he managed to contact Ermelo and spoke to Warrant Officer Ndimande who explained available details about the case against the Plaintiff to him. Warrant Officer Mataka also took part in the discussion. [53] At some point the Plaintiff said that she knows about the Ermelo case. This was, of course, not put to the Plaintiff and clearly denied by her if one looks at her evidence as a whole. [54] Mphalehle also said that at one stage the Plaintiff asked him to please let her go into Zimbabwe to attend a funeral. This was also not put to the Plaintiff and, generally, some aspects of Mphalehle's evidence struck me as unsatisfactory. [55] At one stage Ndimande phoned back (this was never put to the Plaintiff) and said that the system had been checked and that the Plaintiff was still a wanted person. He said a warrant for her arrest had been issued in January of the same year. He said that Mphalehle had to arrest the Plaintiff but because it was night time he could not telefax the warrant but would do so in the morning. [56] The witness said he then told the Plaintiff that he was arresting her for fraud and forgery. This, of course, she denied, although there is Exhibit "Cl8", which I have referred to, suggesting that these details were conveyed to her

19 19 when her constitutional rights were explained. In my view nothing turns on this for present purposes. He said he explained her rights to her and gave "Cl8" to her. His name, in fact, does appear on "Cl8". [57] He then took the Plaintiff to the Musina SAPS cells and he handed her over to a colleague. When he handed her over she was free from injuries. That was the end of his role in the whole incident. [58] In cross-examination he conceded that although he was told that the charge was in respect of fraud and forgery, he had no details about these charges which he could convey to the Plaintiff. He conceded that by the time he arrested the Plaintiff he did not have a warrant, neither did he see the telefaxed document. [59] The witness was inclined to make long speeches which were not relevant, in content, to the issue under discussion. Generally, I did not find him very.. 1mpress1ve. [ 60] He was questioned about the fact that his evidence that the plaintiff had said that she knew about the Ennelo case was not put to the Plaintiff in crossexamination. He said he told the attorney about it.

20 20 [ 61] I am not persuaded that the evidence of Mphalehle did anything to advance the case of the Defendants. It is also worth revisiting the Plea (as quoted) to the amended Particulars of Claim to the effect that "the Defendant admits that at the time of arrest the warrant of arrest had not been transmitted in terms of section ", but still denying the unlawfulness. (iii) Jacobus Engnatius Lombard: [62] I have referred to the involvement of Warrant Officer Lombard as the original investigating officer in respect of the fraud and forgery charges. [63] As I have mentioned, the case of the Plaintiff was initially based on an argument that Lombard did not investigate the matter properly and obtained a warrant of arrest against the Plaintiff on the strength of incorrect information. [64] In the end, this argument was not persisted with. In the result, there is no need for me to analise the evidence of Warrant Officer Lombard any further. The fact is that the fraud and forgery charges were abandoned. [65] Warrant Officer Lombard did not have the benefit of interviewing the Plaintiff before coming to his conclusions. He did not have all the information, including the fact that the ID document had been stolen and that the plaintiff

21 21 denies having entered into the particular lease agreement to which I have referred. [66] No effort was made on behalf of the Defendants to persuade me that there was any merit in these criminal charges. [67] There was no rebuttal of the Plaintiffs evidence denying any involvement in these alleged offences. [68] After the testimony of Warrant Officer Lombard, the Defendants closed their case. This is when the amendments came into play, which I have dealt with at some length. This is also when the section 45 and section 39 defences were mooted and the matter postponed so that the papers could be amplified. (iv) James Makubatiatii Mphalehle recalled: [69] I mentioned that upon the resumption of the trial on 9 October 2017, sergeant Mphalehle was recalled. [70] It is fair to say that there was nothing in his evidence on this occasion which significantly supplemented his evidence on the first occasion or advanced the case of the Plaintiff.

22 22 [71] It should also be borne in mind that the evidence of the Sergeant was, to a significant extent, overtaken by the admission in the amended Plea to the effect that "the Defendant admits that at the time of arrest the warrant of arrest had not been transmitted in terms of section ". Indeed, in closing argument, Defendants' counsel conceded, correctly, that the Plaintiffs case based on non-compliance with section 45 is good, but he maintained that the Plaintiff can only succeed against the First Defendant. I will revert to this argument. [72] Nevertheless, Sergeant Mphalehle again confirmed that he was the arresting officer and that he received "a hit" at about 02h40. He went to collect "the subject" and took her to his office. [73] Warrant Officer Mataka helped him to use the landline to contact Ermelo SAPS. There he spoke to Warrant Officer Ndimande, who confirmed the particulars and said the sergeant must detain the Plaintiff, undertaking to telefax the warrant of arrest the next day. [74] The next morning at 06h00 the Sergeant handed the Plaintiff over to the next shift officials to detain her at the Musina cells.

23 23 [75] When he returned to duty at 18h00 for the next shift he was told that Ermelo SAPS had telefaxed the warrant and they also took the Plaintiff to the Musina Court where she appeared. [76] Understandably, counsel for the Plaintiff objected that this amounted to inadmissible hearsay evidence. Counsel of the Defendant said he could not take the matter further, but I provisionally allowed the evidence in terms of section 3(3) of the Law of Evidence Amendment Act, 45 of It is now an appropriate stage to rule that the hearsay evidence is not admitted. No proper case was made in terms of section 3(1) of the said Act to persuade me to exercise my discretion otherwise. There was no explanation given for the failure by the Defendants to call the recipient of the telefaxed warrant the next morning. In any event, such evidence would not take the matter further, because Section 45(1) of the Criminal Procedure Act foreshadows the situation of the telegraphic or similar written or printed communication reaching the arresting officer prior to the arrest and to serve as authority for the arrest. It is common cause that this never happened. It is convenient to revisit the wording of section 45(1): "Telegraphic or similar written or printed communication from any. magistrate, j ustice or peace officer stating that a warrant had been

24 24 issued for the arrest of any person, shall be sufficient authority to any peace officer for the arrest and detention of a person. " [77] Going back to the previous morning, when he effected the arrest, the Sergeant said that he informed the Plaintiff of the reason for the arrest and pointed out that she was a wanted person by the Ermelo SAPS for fraud and forgery. He also read her constitutional rights to her. [78] In cross-examination he confirmed that his evidence did not take the matter further from what he had said on the previous occasion. [79] He confirmed that he never saw the warrant, neither did he ever have it in his possession. [80] When he arrested the Plaintiff he did to hand the warrant to her. The reason is obvious. [81] He agreed that fraud and forgery was "a wide description" and, through lack of information, he could not tell the Plaintiff in detail what the charges were about. [82] He confirmed ( again for obvious reasons) that at the time of the arrest the Plaintiff did not see a copy of the warrant.

25 25 [83] He could not say whether the warrant was telefaxed and whether that was the reason why the Plaintiff appeared in the Musina court. [84] He confirmed that "Cl8" (the printed document dealing with the section 35 notice of the constitutional rights) was handed to the Plaintiff by him on the 3rd of July at the time of her arrest and also signed by him. [85] The Defendant's case was closed after this. [86] In his closing argument, counsel for the Plaintiff submitted that the provisions of section 40 of the Criminal Procedure Act ("CPA") dealing with the arrest by a peace officer without a warrant, did not come into play because the Sergeant effected the arrest in the belief that he was doing so on the authority of a warrant of arrest. This state of affairs appears to me to be in line with what was pleaded in the amended Particulars of Claim, namely that the Sergeant "... arrested the Plaintiff on a charge of fraud without a warrant of arrest, after he (Mphalehle) had telephonically obtained knowledge of the existence of a warrant of arrest ". In the amended Particulars of Claim, the Defendants also admitted the arrest of the Plaintiff by the Sergeant "... on a charge of fraud and denied (sic) that

26 26 it was without a warrant of arrest and maintained (sic) its version that the arrest was authorised in terms of an existing warrant of arrest. " (87] In all the circumstances it is clear from the evidence (and conceded by the Defendants as I have explained) that the arrest was effected without the "telegraphic or similar written or printed communication " foreshadowed by section 45( 1) so that the arrest, for that reason, was unlawful. (88] In his closing argument, counsel for the Plaintiff also dealt with the provisions of section 39(2) which were introduced in the amended Particulars of Claim. It deals with the "manner and effec1 of arrest" and provides: "(2) The person effecting arrest shall, at the time of effecting the arrest or immediately after effecting the arrest, inform the arrested person of the cause of the arrest or, in the case of an arrest effected by virtue of a warrant, upon demand of the person arrested hand him a copy of the warrant. " (89] On this subject, I was referred to Minister van Veiligheid & Sekuriteit v. Rautenbach, 1996(1) SACR 720 (AD) where the following is said at 735 c-g: "Waar dit voor of ten tye van die inhegtenisneming reeds blyk dat die arresteerder nie aan die vereistes van artikel 39(2) kan voldoen nie, of

27 27 gaan voldoen nie, dan bestaan daar geen rede vir die onderskeid wat in die benadering van die howe in die bogemelde sake gemaak is tussen die regmatigheid van die inhegtenisneming en die onregmatigheid van die daaropvolgende aanhouding nie. Dit geld vir die mededeling van die rede en die oorhandiging van 'n afskrif van die lasbrief As in Mantu se geval daar geen lasbrief was nie en die polisie bloot op inligting die eerste beskuldigde wou gearresteer het, sou die aangehaalde getuienis steeds tot die slotsom gelei het dat die inhegtenisneming self onregmatig was. Alhoewel die nakoming van die vereistes van artikel 39(2) nie noodwendig ten tye van die inhegtenisneming hoe/ te geskied nie, en daar dus in die konteks gese kan word dat die vereiste nie 'n bestanddeel van die inhegtenisneming is nie, stel die Wetgewer dit tog in die vooruitsig dat daar we! aan die vereistes voldoen kan word 'ten tyde van die uitvoering van die inhegtenisneming'. Hierdie woorde, en die gedagte daarin vervat, het nie in die voorgangers van artikel 39(2) voorgekom nie. As die feite aantoon dat die arresteerder 'ten tyde van die uitvoering van die inhegtenisneming' te kenne gee dat hy nie by magte of nie van voorneme is om die statutere voorskrifte na te kom nie, dan ontbreek daar enige feitlike grondslag vir 'n bevinding dat die inhegtenisneming nogtans regmatig is. Eweneens sal die

28 28 inhegtenisneming onregmatig wees as die arresteerder nog voor die inhegtenisneming laat blyk dat hy nie die vereistes gaan nakom nie." [90] In Minister of Safety and Security & Another v. Schuster & Another (CA 107/2016) [2017] ZAECGHC 36 (16 March 2017) the following is said in paragraph [12] of the judgment: "A police official who effects an arrest in terms of a warrant must, upon the demand of the person arrested, hand him or her a copy of the warrant. If a police official is not in possession of a warrant of arrest and realises that he or she will not be able to comply with the demand for a copy of the warrant, but nevertheless effects the arrest, such an arrest will be unlawful. Minister van Veiligheid en Sekuriteit v. Rautenbach, 1996{1) SACR 720 {SCA). In this case the policeman intended to take the arrested person to the police station and hand him a copy of the warrant at the police station. According to the court this would have taken too long and would not have complied with the requirements. " [91] lnparagraph-[6] of Schuster, the following is said: "[16] In Rautenbach (supra) it was set out that compliance with section 39(2) of the CPA is required as soon as possible but

29 29 that it is clear where there is no intent or ability to comply therewith the arrest is invalid from its inception. In that matter the arrestor acted on the authority of a warrant to arrest a suspect, but did not take a copy to the arrest and could not have exhibited it had the suspect requested same and he was therefore not able and did not intend to comply with the requirement, and the arrest was futile. In Bassden v. Minister of Safety and Security, 2014(2) SACR 163 (GP} the failure to prove that a warrant existed by producing same at the trial was sufficient to support a finding that the arrest consequent thereupon was unlawful. " [Emphasis added] [92] Counsel also argued, correctly in my view, that once it is found that the arrest of the Plaintiff was unlawful, it is not necessary to determine the second question of whether the arresting officer had indeed informed the Plaintiff of the charges against her. This has to do with the question whether or not the Sergeant informed the Plaintiff of the charges, something which remained in dispute. [93] It was also argued before me that, where the section 45(1) contravention is being conceded, and where the arrest is unlawful for that reason alone, the

30 30 section 39(2) argument serves as little more than a supplementary rather than as conclusive consideration. [94] Finally, I was reminded by counsel, correctly, that when police have arrested and detained a person and the arrest and detention are admitted or established, the onus of proving lawfulness rests on the State - see Am/er 's, Precedents of Pleadings, 8 1 h edition, p. 43 and Mhaga v. Minister of Safety and Security, [2001) 2 Al/SA 534 (Tk) and Cele v. Minister of Safety and Security, [2007} 3 Al/SA 365 (D). [95] For all these reasons, it is clear that the onus was not discharged and that the arrest was unlawful. IS THE SECOND DEFENDANT ALSO LIABLE: (96] The action was originally only instituted against the Minister of Police, as is often the case with these matters. However, on 22 October 2014 the Second Defendant, the Minister of Justice: was joined as such by this Court. The order forms pa1i of the papers before me. [97] In a Plea to the amended Particulars of Claim (presumably the amendment granted in Febmary before the postponement of the case) the Defendants are

31 31 both cited in the heading and it is indicated that "the Defendants plead as follows... ". [98] For some reasc,n, and perhaps because of laxity, the heading of the pleadings at times only referred to the Minister of Police as "Defendant". This is clearly wrong, [99) In the final amendment of the Particulars of Claim of March following the February postponement, the amended Particuiars of Claim refer to both the Defendants as First and Second Defondant respectively. An amount of R4Z 1, is claimed in respect of damages. No distinction is drawn between whether m not the clairn lies ~~ainst the First or the Second or both Defendants jointly &nd severally. l accept that the latter is the position, although. with respect, the Particulars of Claim could have been framed less clum$ily. [1001 In the last Plea which r have on record purporting to plead to the amendment of 23 Febmary 2017, the Defendants, for some reason, cited only the First Defendant in the heading, but there is nothing in the body of the Plea to suggest that the Defendants are offering a "defence" to the effect that the Second Defondant is 1ot before the Court.

32 32 [101] I mention all this, because Defendants' counsel, if I understood him correctly, argued that there was no Plea by the Second Defendant, so that the latter is not before the Court. I cannot accept this argument, highly technical as it is. The earlier Plea to the amendment, as I have said, cited both Defendants and states that "Defendants plead as follows". There was no reason for the Plaintiff to assume that there would be a submission on behalf of the Defendants, in closing argument, that the Second Defendant is not before Court. I reject this contention. [102] I now turn to the question as to whether or not the Second Defendant, as Minister of Justice, can also be held liable to compensate the Plaintiff for damages in this particular case. [103] I am alive to what was said in the well-known case of Minister of Safety and Security v. Sekhoto, 2011 (5) SA 367 (SCA) at 383 C- D: "while it is clearly established that the power to arrest may be exercised only for the purpose of bringing the suspect to Justice, the arrest is only one step in that process. 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 forty eight hours, depending on court hours. Once that has been done, the authority to detain, that is inherent in the power to arrest, is exhausted. The

33 33 authority to detain the suspect further is then within the discretion of the court. " [104] In Vuyani Julius Woji v. The Minister of Police ( ) [2014] ZASCA 108 [20 August 2014] the Learned Judge of Appeal, in a footnote to paragraph [26] of the judgment, points out that the appeal in Sekhoto "only concerned the lawfulness of the Respondents ' arrest and not their subsequent detention". [105] In Minister of Safety and Security (First Appellant) and Minister of Justice and Constitutional Development (Second Appellant) v. Never Ndlovu, (788/1 1) [2012] ZASCA 189 (30 November 2012) it appears that the Respondent who was arrested on a charge of possession of suspected stolen property, was first brought before a so-called "reception court" in the Grahamstown area on 23 October 2008 and remanded in custody to 30 October On that day he was granted bail, which was paid on his behalf the following day. The case was then postponed again. On 9 December 2008 all the charges were withdrawn again and on 20 December 2008 his property, seized by the police on the date of arrest, was released to him. On 21 April 2010 the Respondent instituted proceedings against the Appellants, both the Ministers, as the First and Second Defendants for unlawful arrest and detention from 21 to 31 October 2008.

34 34 [106] During the trial before the Eastern Cape High Court, Grahamstown, it was conceded on behalf of the First Appellant (Minister of Police, then known as the Minister of Safety and Security) that the attest on 21 October 2008 and the subsequent detention until 23 October 2008 when he was brought before the "reception (:Ourt" were unlawful. However, the Appellants persisted in their defence that Respondent's unlawful detention ceased when the Magistrate in the "reception court" remanded the Respondent in custody to 30 October 2008 for a bail application at Legal Aid. The appeal which came before the Supreme Court of Appeal (SCA) was only concerned with the lawfulness of the further detention from 24 to 31 October The case of the Appellants was that from the time the Magistrate issued the detention order the unlawful detention ceased. [107] In the Court a quo judgment was granted against both Defendants, jointly and severally (a) in respect of the unlawful arrest and detention between 21 and 23 October 2008 for RSS,000.00; and (b) in respect of the unlawful detention in prison between 24 and 31 October in the sum of RI 75, The total came to R230,0Ci0.00. [108] It appears from the judgment that the prosecutor, Mr. Prinst was given a socalled "bail information form" completed by one of the poiice officers. This form was intended to assist the prosecutor at the Respondent's first appearance at Court. The prosecutor was expected to evaluate the information contained in that fonn and then decide whether to consent or

35 35 object to bail. The form recorded that the Appellant be refused bail because he was considered a flight risk-judgment paragraph [i J]. [109] The prosecutor testified during the trial to the effect that he did not study the docket but only looked at the "bail information form". He said it was the responsibility of the control prosecutor to study the docket, draw a charge sheet and thereafter to give it to the prosecutor in the "reception court". When the matter was called in the "reception Court" the prosecutor applied for the case to be remanded, which was granted without further ado. The Learned Magistrate postponed the case for seven days - judgment par. [12}. [11 O] In paragraph U 3 J the Learned Judge of Appeal says the following: "It is opportune to say something about the so-called 'reception court', which has since ceased to exist. This is a 'court' which at that time was solely dedicated to dealing with accused persons at their first appearance at court. All cases before it were postponed as a matter of course and as a rule it never entertained any bail applications. Neither did it embark on a judicial evaluation to determine whether it was in the interest of justice to grant bail nor, in this case, did it afford the Respondent the opportunity to address it on the question of his eligibility to be released on bail. "

36 36 [ 111] On a general leading of the judgment, it appears that the State failed to offer any relevant evidence as to why the bail application was refused. In paragraph [15] the Learned Judge makes the following remark: "The inevitable consequence of these evidentiary "shortcomings " is that the evidence of the appellants, who bore the onus to justify the deprivation of the respondent's liberty, came nowhere near discharging that onus. " [112] In paragraph [16} the following is observed by the Learned Judge of Appeal: "In this case it is common cause that the 'reception court' never embarked on any judicial evaluation because, as a matter of course, its function was merely to postpone cases and without, it would seem, enquiring whether or not an accused person ought to be detained pending a trial. It can thus hardly be contended that the unlawful detention of the Respondent ceased when he was brought before the 'reception court' which ordered his detention. It follows that this appeal must fail. "

37 37 [113] In the present case, it is reasonable, in my view, to infer that the position was comparable to that in Ndlovu: There is no indication whatsoever that the State offered any evidence as to why the Plaintiff should not be released on bail; The Plaintiff only remarked in passing that she asked for bail but it was refused. There is no indication that a proper bail application was considered and adjudicated upon; and On a general reading of the papers, it appears that the Musina Court where the Plaintiff appeared before she was further detained only to be sent to Middelburg, operates in a matter akin to the "reception court" which features in Ndlovu: On the probabilities, it is reasonable to assume that Plaintiffs appearance in the Musina Court was a mere formality to comply with the requirements of the Criminal Procedure Act, No. 51 of 1977, that there was no intention to hear the matter in Musina and that it was always understood that the case would be heard in Ermelo. The Plaintiff testified, as I have already indicated, that at Court she was told that the case would be heard in that town. [114) In the circumstances, I consider it appropriate to follow the guidance provided by the Learned Judge of Appeal to the effect that "it can thus hardly be

38 38 contended that the unlawful detention of the respondent ceased when he was brought before the 'reception court' which ordered his further detention. " [115] It follows that both the Defendants are to be held liable and that the dictum in Sekhoto, supra, does not come into play. [116] However, it should be noted that in Nd/ovu, the Supreme Court of Appeal varied the order of the Court a quo as explained in paragraph [ 17] of the judgment: The High Court entered judgment in favour of the Respondent against both the Ministers, jointly and severally, for his unlawful: (a) arrest and detention for the period 21 to 23 October 2008 and awarded compensation in the amount ofr55,000.00; and (b) detention for the period 24 to 31 October 2008 m the sum of Rl 75, [117] In this regard the Learned Judge pointed out that in respect of (a) judgment could only have been entered against the First Appellant (the Minister of Police, then the Minister of Safety and Security) and that would also hold true in respect of the interest and costs that flow from that award.

39 39 In respect of (b ), judgment, interest and costs ought to have been entered against the appellants jointly and severally. the order was corrected accordingly. The appeal was otherwise dismissed with costs, including the costs of two counsel. [118] Against this background, I propose following the same approach in this particular case. BRIEF REMARKS ABOUT THE QUANTUM OF THE A WARD TO BE MADE: [ 119] Although each case must be considered on its own particular circumstances, it has become common practice to take cognisance of similar awards made in respect of comparable cases in other courts. The Quantum Yearbook by Robert J. Koch has become a very useful guide in this regard. [120] The two awards made in Ndlovu against the respective Ministers, namely R55, for the first three-day detention period and Rl 75, for the second eight-day detention period come to R230, in total and 1s updated for inflation in the Quantum Yearbook of2018 to R339,

40 40 [121] The seven-day detention period experienced by the present Plaintiff comes to about 65% of the eleven-day period meted out to Ndlovu, so that the corresponding percentage of 65% of the updated figure for Ndlovu comes to some R220, for the present Plaintiff. The R55, awarded against the Minister of Police in Ndlovu will then be updated for inflation to approximately Rl05, and the R175, awarded against both the Ministers will be updated to approximately R233, The corresponding figures for the present Plaintiff, given the shorter detention period, will come to some R68, and R150, respectively. [122] In Ndlovu, I could find no indication in the judgment of the circumstances under which the aggrieved party was detained whereas, in the present case, the Plaintiff was detained under appalling and completely unacceptable circumstances. I have mentioned details of her undisputed evidence. Given this disgraceful treatment of the Plaintiff, I have come to the conclusion that awards of Rl 00, (against the First Defendant) and R200, against the Defendants jointly and severally, in the spirit of the guidelines to be found in Ndlovu, would be more appropriate.

41 41 [123] Before making the order, it may be useful to refer to some other comparable awards: In Minister of Safety and Security & Another v. Schuster & Another (CA107/2016) [2017]ZAECGHC 35 (16 March 2017) the two Plaintiffs were unlawfully arrested and then unlawfully detained further because of irregular conduct on the part of the employees of the Minister and the Director of Public Prosecutions when it came to considering the bail application. They were detained from 10 January 2013 to 30 January 2013 (some twenty days) and for the arrest they were awarded RS0, each and for the further detention some R250, each, yielding a total award of some R300, each for a longer period of detention than what we are dealing with in the present case. I couldn't find the updated figure in the Quantum Yearbook; In Vuyani Julius Woji v. The Minister of Police (92/2012) {2014) ZASCA 108 (20 August 2014) the Appellant was unlawfully detained because of misrepresentations made at the bail application after his arrest. He was detained from 12 December 2007 to 13 January He was awarded R500, He was detained in appalling conditions. The cells were overcrowded, dirty and with insufficient beds to sleep on. He was subjected to the control of a gang, who

42 42 sodomised other prisoners. As a result, he was also raped on two occasions. The award of R500, after the thirteen months of detention is updated to R699, in the Quantum Yearbook. This case is not, strictly, comparable to the present matter; and In Lindiwe Ndlovu v. Minister of Police, Case no /2014 of this Court, the Gauteng Division, the Plaintiff was detained for a period of eight days after she had also been arrested at the Musina border post and the arrest was found to be unlawful. She was awarded R240, as damages for her unlawful arrest and detention. I could not find an updated figure in the Quantum Yearbook. [124] Against this background, it seems to me that the suggested award of R300, will not be inappropriate in the present case. THE COSTS: [125] I have already mentioned that the Plaintiff was ordered to pay the wasted costs flowing from the amendment of 23 February 2017 as well as the wasted costs occasioned by the postponement of the proceedings on that day to enable the Plaintiff to move for a further amendment and for the pleadings to be adjusted accordingly. This would include the costs occasioned by the postponement.

43 43 [126] The rest of the costs should follow the result and should be paid by the Defendants, jointly and severally. [127] I am of the view that the Plaintiff was well justified in employing the services of senior counsel, given the complexity of the matter. As I understand guidelines laid down by the Supreme Court of Appeal, it would be inappropriate for me to order the Defendants to pay the costs of senior counsel because that would amount to fettering the discretion of the Taxing Master. See The City of Johannesburg Metropolitan Municipality v. The Chairman of the Valuation Appeal Board for the City of Johannesburg (282/2013) [2014} ZASCA 5 (12 March 2014) at paragraph 34 and Hangar v. Robertson (200/2015) [2016] ZASCA 102 (JO June 2016) at paragraph [21]. THE ORDER: [128] I make the following order: Judgment is entered in favour of the Plaintiff: 1. Against the First Defendant for: 1.1 payment of the sum ofrl00,000.00;