IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG LOCAL DIVISION, JOHANNESBURG)

(1)	REPORTABLE: YES/NO
(2)	OF INTEREST TO OTHER JUDGES: YES/NO
(3)	REVISED. 

DATE: …………..……………………...

Date			Signature

				                   	                      CASE NO.: 6983/2013  
                                                           
In the matter between:

RICHARD MOSES 							              Plaintiff

And 

MINISTER OF SAFETY AND SECURITY			                   Defendant

JUDGMENT

BALOYI AJ:
 
INTRODUCTION

[1] 	The plaintiff’s claim against the defendant consists of two parts.  
[1.1] 	The first claim is for an amount of R25 000, for the unlawful arrest  	and R25 000 for the subsequent   detention of approximately 2½ 	hours that occurred on the 24 September 2011. 

[1.2] 	The second claim is for the unlawful arrest and detention that 	took 	place at 07h30, on 25 September 2011 until his release 	on 27 September 2011 at approximately 10h00.   In this regard, the plaintiff is claiming R25 000 for the unlawful arrest and R100 	000 for the detention, which lasted for two days.   

[2] 	At the time when the incident took place in 2011, the plaintiff was 	25 years old.   

[2.1] 	Abie Mohapi (“Mohapi”) is a policeman, stationed at Lenasia and lives not far from the plaintiff’s residence.  He accused the plaintiff of being involved in a housebreaking incident at his mother’s residence on the morning of 19 September 2011. The plaintiff denied any knowledge or involvement in the housebreaking. He was taken by Mohapi to his mother’s residence, 	where the plaintiff enquired from Mohapi’s sister what had 	transpired that morning and she informed the plaintiff that someone had knocked on their door but nothing had been stolen from the premises.  However, despite lack of incriminating evidence against the 	plaintiff, he became a victim of constant harassment and reported Mohapi to Captain 	Sibiya of Sebokeng Police Station. Regrettably, the police did 	not provide him with the necessary protection that he needed 	against Mohapi and he was subsequently beaten up by 	Mohapi and his friend Neo Nkafu, causing him serious injuries. 	He laid charges against them and they were subsequently 	found guilty and sentenced to three 	years’ imprisonment. These 	facts are not disputed by the defendant. 
    
CLAIM 1

THE ARREST ON 24 SEPTEMBER 2011  

[3]	 Whilst the assault charges were pending against Mr Mohapi for 	assaulting the plaintiff, he went to the plaintiff’s house at 62514 	Zone 17 Sebokeng in a police van together with two police 	constables namely Maluleke (“Maluleke”) and Mukwevho.  They found the 	plaintiff and his two friends inside the house.  Mr Mohapi pointed at the plaintiff and indicated that he is the person they were looking for.

[3.1] 	The police proceeded to search the plaintiff and his friends as 	well as the premises.   While they were busy searching Mr Mohapi 	went to the toilet and upon his return he produced a plastic 	packet containing dagga and shouted possession.  When the 	plaintiff enquired from him as to where did he get the dagga, 	instead Mr Mohapi  slapped him with an open hand on his face. The plaintiff then complained to Maluleke and Mukwevho that Mohapi had assaulted him before and he had laid criminal charges, and the case was pending against Mohapi and that the injuries were still visible.

[3.2]	That notwithstanding, Constable Maluleke 	told the plaintiff that                                         	he  was  under  arrest, handcuffed him and  ordered him into the 	police van.  The two friends that were with the plaintiff were also 	arrested and ordered into the police 	van. This incident took 	place at approximately 13h30. The 	plaintiff further testified that 	they were taken to Sebokeng Police 	Station. At the police 	station, the plaintiff together with his two friends, were 	requested to remove their shoes and belts, and the plaintiff 	signed a document when he handed in his shoes and 	belt.  	They were taken to a holding cell.  

[3.3] 	At approximately 16h00, the plaintiff and his two friends were 	released from custody.  They were detained for approximately 	2½ hours.  

[3.4] 	During cross examination by the defendant’s counsel, it was put 	to the plaintiff that he was only taken for questioning and his 	response was that at the police  station they did not ask him 	anything.  It was further put to the plaintiff that when they took 	him away, there was no need to explain to him his constitutional 	rights because he was not arrested.  However, the plaintiff was 	adamant that he was cuffed, put in the back of the police van 	and Constable Maluleke told him he was under arrest. 

[3.5] 	His evidence in this regard   is supported by that of his sister 	Rachel Motsepe who testified that she went to the police station approximately 13h45,  after receiving  a phone call from her brother,  Mr Richard Moses, that he has been arrested and is being held at Sebokeng Police Station. 
 
[3.6] 	At the police station, she confronted the police that had arrested her brother, namely Mukwevho, Maluleke and Abie Mohapi. The three policemen told her that her brother was arrested for possession of dagga, which was found by Abie Mohapi in the plaintiff’s house. 

[3.7] 	She queried the fact that Abie Mohapi was allowed to search 	the premises and take over the scene, when charges of assault 	laid by the plaintiff were pending against him.   She was also 	surprised to find that the three policemen, who arrested her	brother for possession of dagga, did not make statements 	regarding the charge of possession of dagga against her 	brother.  When she asked the three policemen why they did not write statements to that effect; Abie Mohapi, who was stationed 	at Lenasia Police Station, became angry and said he will not write a statement regarding where and how he found 	the dagga in the plaintiff’s house.
  
[3.8] 	She also observed that Abie Mohapi was under the influence of 	alcohol and was becoming very aggressive saying whether she 	likes it or not the plaintiff will remain in custody.  She was 	dissatisfied with the conduct of the three policemen and 	approached the Commander of the Community Service Centre 	(CSC), who agreed with her that Constable Mukwevho and 	Maluleke were wrong in allowing Abie Mohapi to take over the 	scene and instructed the two constables to release the plaintiff 	from the holding cell. At that point, Abie Mohapi became furious and stated that he will report the matter to the Station Commander and 	the Minister of Police. 

[3.9] 	The (CSC) Commander told Abie  Mohapi that he is at liberty to report him to the Station Commander  or the Minister and  	instructed  the two  Constables once again to release the 	plaintiff. He was then released from the holding cell and his sister saw him coming out of the cells.   

SUMMARY OF THE EVIDENCE OF THE DEFENDANT

CONSTABLE TIYANI MALULEKE 

[4] 	On 24 September 2011 at approximately 13h00, he was 	performing patrol duties in Sebokeng, together with his crew 	member Constable Mokwevho.   At that time, they received a 	call from a police officer, Abie Mohapi, who alerted them about 	people who were busy smoking dagga. The two constables 	drove to Abie Mohapi’s residence, and thereafter Mohapi took them 	to the plaintiff’s residence which was a few houses away from his house. Mohapi started searching the plaintiff’s house however Constable Maluleke restrained him from searching the house further because he was off duty.  Mohapi became upset for 	being told to stop searching the house and   pointed a finger at the plaintiff saying: “you Moses, you have caused a police officer to be arrested”. 
 
[4.1]  Maluleke became suspicious and thought there 	seemed to be 	bad blood between Mohapi and the plaintiff since they reside in 	the same area and knew each other well. Maluleke and 	Mokwevho searched the house, as 	well as the occupants and 	the plaintiff, and did not find any 	illegal substance. They all 	went outside the house and Mohapi   remained inside.   After a 	short while Mohapi came out of the house shouting: “Nyaope!   	Nyaope!  Inside the house” and   at 	that stage he was holding a 	plastic bag which he said contained Nyaope.   He gave this 	plastic bag to `Maluleke so that he could open a case of 	possession of drugs at the police station. However,  Maluleke 	was surprised and asked him where in the house he found the 	drugs. Instead Abie Mohapi started shouting at the police 	officers.  Constable Maluleke told Mohapi to open a case of 	possession of drugs because he is the one who found the 	drugs. According to Maluleke the plastic bag contained a white 	powder-like substance and he was not certain whether the 	powder was illegal substance or not.  Despite the conduct of 	Mohapi, Maluleke decided to take the plaintiff to Sebokeng 	Police Station for questioning.   He placed him at the back of the   	police van but he was not cuffed.   At the police station, he 	parked the police van outside the station and asked the plaintiff 	if he knew about Nyaope and the plaintiff denied any 	knowledge regarding Nyaope.   Maluleke explained 	that he 	did not open a case of possession of drugs or illegal 	substance, because he did not find drugs in the plaintiff’s house.  	He also sought advice from Captain Nhlapo, who told him to 	release the plaintiff.    He then told the plaintiff to go home. 

[4.2] 	During cross-examination by the  plaintiff’s legal representative,  	Constable Maluleke reiterated the fact that Abie  Mohapi  was 	uncooperative  and  violent  at the plaintiff’s house,  and he told 	plaintiff that he has caused  a police officer to be arrested and 	he will pay for it.  

[4.3] 	 Maluleke also conceded during cross-examination that the          	plaintiff was told to go home at 16h00. 

[4.4] 	Constable Lufuno Mukwevho corroborates the evidence of 	Constable Maluleke to a large extent regarding the following:
   
[4.5] 	That he also searched the plaintiff’s house and did not find 	drugs.  The plaintiff, together with his friends, was searched and 	no illegal substance was found in their possession.   All of them 	vacated the house, except for Abie Mohapi who remained 	inside. After a short while, Abie came out shouting saying he 	found dagga and it belongs to Moses (the plaintiff).  Mukwevho 	was surprised as well; he became suspicious because he did not 	see where Abie Mohapi found the dagga. However they 	decided to take the plaintiff to Sebokeng Police Station for 	questioning.  The plaintiff sat in the front seat of the police van 	between the two police officers, and they drove to the police station and parked the van outside.  The plaintiff denied any 	knowledge regarding the dagga allegedly found at his premises 	by Mohapi.
  
[4.6] 	At the police station, Mohapi refused to open a case of 	possession of dagga against the plaintiff, and that prompted  	Constable Maluleke to release the plaintiff. Maluleke 	registered the dagga allegedly found at the plaintiff’s house on 	the SAP 13 register as lost and found property. 

[5] 	The evaluation of evidence reveals that there was indeed  bad 	blood which  existed  between Mr Mohapi and the plaintiff, in 	that whilst  at the plaintiff’s residence Abie  Mohapi pointed a 	finger at  the plaintiff  saying:  “You Moses  you have caused a 	policeman to be arrested you will pay for it “.    His conduct also 	supports the contention that he had a feeling of intense hatred 	towards the plaintiff. 

[5.1] 	Furthermore, the plaintiff also alerted  the two arresting officers at 	the time they were  at his house that Mohapi assaulted him on  a 	previous occasion, that he sustained injuries which were still 	visible and that he had  laid charges of assault, which were 	pending against Mr Mohapi.  

[5.2] 	Both arresting officers also testified that they became suspicious 	when Abie Mohapi shouted to them that he had found a plastic 	bag containing dagga in the house belonging to the plaintiff.   	What surprised the two officers is the fact that they initially 	searched the plaintiff’s house and nothing illegal was found in 	the house or in possession of the occupants. That 	notwithstanding,   Maluleke  told the plaintiff that  he was under 	arrest,  handcuffed him and ordered him into the police van, and transported him to the police station.  

[5.3] 	What is rather strange is that at the police station,  the two 	arresting  officers  declined   to make arresting statements and Abie 	Mohapi  also refused  to make a statement  regarding the 	dagga  allegedly found by him at the plaintiff’s house.  The 	plaintiff’s sister, who arrived a short while later at the police station, insisted that Maluleke release his brother from the holding cells, however,   Abie Mohapi, who was drunk and aggressive at the 	time, told her whether she likes it or not the plaintiff will remain in custody. Clearly the police officers made themselves guilty of a gross abuse of the power entrusted to them.   The plaintiff’s sister was aggrieved by the unbecoming conduct of the police officers and reported the matter to the CSC Commander who 	berated the two officers for allowing Abie Mohapi to take over the scene and searched the plaintiff’s house.   The Commander instructed the two police officers to release the plaintiff from the holding cell.  

[5.4] 	What is disturbing is the fact that  Abie Mohapi was out on bail   	in a criminal matter, where  the plaintiff  was the complainant  	and he went to the plaintiff’s residence, harassed and 	threatened him  thereby breaching his  bail  condition. Plaintiff‘s 	evidence is that Mohapi assaulted him with an open hand, 	when he enquired from him as to where did he find the dagga in 	the house. 

[5.5] 	The two police officers maintained throughout their testimony 	that they took the plaintiff to Sebokeng Police Station. However, he was not detained in the holding cells but was held outside 	the station inside the police van for questioning.   This version is 	disputed by the plaintiff and his sister. Plaintiff testified that the 	police removed his belt and other belongings and he was 	locked up in a cell.   His sister testified that when he was released 	he came from a cell in the CSC area. Warrant  Officer Motsepe,  a witness  called by the defendant,  	testified that there was  indeed a room with  a burglar door in the CSC area  and  police would keep suspects in this room whilst deciding to charge them or not.   However he cannot say if plaintiff was held in that room.  

[5.6] 	I have carefully considered the evidence of the plaintiff and his 	sister and could find no indication that their evidence is 	fabricated. However, evidence of Maluleke and Mukwevho is contradictory and unreliable.  Mukwevho stated that he was held for 20 minutes but Maluleke testified that he only asked 	him one question, viz does he use dagga.  The plaintiff’s   version 	is reliable and he came across as a trustworthy and reliable witness.  He was corroborated by his sister and I accept their version as the truth, namely that he was detained in a holding 	cell in the CSC area.  I therefore reject the version of the two 	police officers that he was kept in a police van outside.  

[5.7] 	It is abundantly clear that the police had a motive to falsely 	implicate the plaintiff regarding the dagga allegedly found by 	Abie Mohapi, and their intention was clearly to punish him for 	laying assault charges against Mohapi.   This is demonstrated by 	their refusal to make sworn statements regarding the charge of 	possession of dagga, which turned out to be a fabrication.  This is 	fully supported by the fact that he was later released without 	being charged with any crime.

[5.8] 	I therefore find that his arrest and subsequent detention for a 	period of approximately 2½ hours was indeed unlawful.
   
CLAIM 2  

[6] 	With regard to the second claim, the defendant does not dispute that the plaintiff was arrested and detained from 25 to 27 September 2011. However, the defendant pleaded a justification 	and maintained that the arrest was in terms of Section 40(1)(b)  of the Criminal Procedure Act 51 of 1977 (“the Act”).  

[6.1] 	In terms of Section 40(1)(b)   of the Act,  an arrest without a 	warrant  is only permissible where the peace officer is 	entertaining a reasonable  suspicion that the person he is 	arresting, has committed an offence listed in Schedule 1.
   
[6.2] 	The jurisdictional facts for a Section 40(1) (b)   defence are that: 

(i)	The arrestor must be a peace officer;
(ii)	The arrestor must entertain a suspicion;   
(iii)	The suspicion must be that the suspect  (the arrestee) committed an offence referred to in Schedule 1; and 
(iv)	The suspicion must rest on reasonable grounds.  

[6.3] 	Once these jurisdictional facts are present, the discretion whether or not to arrest arises.   See Duncan v Minister of Law and Order 1986(2)   SA 805(A)   at 818 G-H  and Minister of Safety and Security v Sekhoto and Another 2011(1) SACR 315  (SCA). 

[6.4] 	In order to determine whether these jurisdictional facts are 	present, it is important to analyse the evidence of Maluleke and 	Mukwevho and what follows is a summary of their evidence. 

[6.4.1] That on the morning of the 25   September 2011,  while they were 	performing  patrol duties in Sebokeng, Maluleke received  a call   	from Mrs Alinah Mohapi who is  Abie Mohapi’s mother,  telling 	him that she has opened a case of housebreaking  with intent to 	steal and theft and knows the whereabouts  of the suspect.  The 	two Constables drove to her residence.   Upon arrival she further 	explained that she had laid a charge of housebreaking against 	a person who helps her with gardening, and suspects that this 	person took her items.   She further explained that she saw this 	person entering and leaving her premises.  She also mentioned 	that the stolen items were a microwave, iron and kettle and the 	suspect resides at house number 62480 in Sebokeng.  

[6.4.2]At approximately between 07h00 and 08h00, Mukwevho, Maluleke and Mrs Mohapi proceeded  to the said address and found the 	plaintiff in the house. Mrs Mohapi pointed out the plaintiff as the suspect and he was arrested by Maluleke.  

[6.4.3] During his testimony, Constable Maluleke admitted to arresting 	the plaintiff, without verifying the existence of the docket.  He 	further testified that at the time he arrested the plaintiff, he had 	not seen or read the sworn statements of Mrs Mohapi.  He stated 	that he arrested the plaintiff on the strength of being shown a 	case number by Mrs Mohapi and did not confirm or verify if the 	docket was indeed opened:   “I told myself there is case number 	and I can arrest the plaintiff.”  What is interesting is that Maluleke did not go to Mrs Mohapi’s house to ascertain how entry was gained.  

[6.4.4] One of the jurisdictional prerequisites for section 40(1) (b),   is that 	the arresting officer must have a reasonable suspicion that the 	suspect has committed a Schedule 1 offence.   (See Mvu v 	Minister of Safety and Security & Another  2009(2)   SACR 291   	(GSJ)   at [9];   Minister of Safety and Security & Another v Swart 	2012 at SACR 226(SCA)  

[6.4.5] Accordingly, the reasonableness of the suspicion must be 	assessed objectively; would a reasonable person,   confronted 	with the same set of facts, form the suspicion that the arrestee 	has committed a Schedule 1 offence.  In R v Jones   1952(1)   SA 	327 (EDL), a constable received a report from a responsible 	person that a man had hit a girl in the face with a sjambok 	causing an open wound.  The constable arrested the man 	without further ado, but the open wound was not “dangerous”   	as required by the Schedule.   The Court held that the Constable 	should have obtained more information about the wound 	before he could have had sufficient grounds for a reasonable 	suspicion.  

[6.4.6] Similarly in this matter as well, Maluleke arrested the plaintiff 	upon being shown a case number by Mrs Mohapi, without further ado. The information given by Mrs Mohapi was clearly insufficient 	to cause a reasonable person to believe that the offence has been committed.  It is also evident that Maluleke did not form his own suspicion that the plaintiff had committed the housebreaking with intent to steal and theft as required by Section 40(1) (b) of the Act, but relied on the suspicion of Mrs Mohapi.   In general,   the person effecting the arrest is also the person who must harbour the 	reasonable suspicion. See   Minister of Justice vs Ndala 1956(2) SA 777(T) 780.

[7] 	Constable Maluleke should have obtained more information 	about the manner in which the housebreaking was committed, 	how entry was gained and how did the suspect carry the stolen items.  

[7.1] 	Furthermore, Maluleke confirmed during  cross-examination that 	Abie Mohapi told the plaintiff on the previous day, that  he had 	caused a policeman to be arrested and will pay for it.    	Therefore, when Maluleke arrested the plaintiff for the second 	time on the 25 September 2011, he already knew about the bad 	blood that existed between Mohapi and the plaintiff.   In fact, the plaintiff complained to him the previous day that Mohapi had assaulted him before and he had laid criminal charges which,   at the time, were pending against him.  Quite frankly, this factor should have raised alarm bells prompting him to conduct 	thorough investigation before effecting an arrest.   In the case of 	Louw & Another v Minister of Safety and Security & Others 2006(2)   	SACR 178(T)   183 j – 184d, it was held that police officers who 	purport to act in terms of Section 40(i)(b)should investigate 	exculpatory explanations offered by a suspect, before they can 	form a reasonable suspicion for the purposes of a lawful arrest. 

[7.2] 	The flagrant disregard for the provisions of Section 40(1)(b)   by  	Constable Maluleke,  coupled  with the fact that he was not a 	reliable  witness in the witness stand, with a marked  propensity to 	fabricate his evidence where it suited him,  confirms  the suspicion 	that he was used by Abie Mohapi and his mother to harass and 	punish the plaintiff for having laid  criminal charges of assault against Abie Mohapi.    He succeeded in doing so on two consecutive days i.e. 24 and 25    September 2011.  He unjustifiably arrested and detained the plaintiff, despite protestations by the plaintiff that there was bad blood between him and Mr Mohapi. Constable Maluleke also conceded under cross-examination that the plaintiff’s arrest and detention on the 	25 September 2011 was unlawful.  

[7.3] 	I therefore find that there was no justification by the defendant in 	arresting the plaintiff and his arrest and the subsequent detention 	was also unlawful. 

[8] 	I now turn to the issue of quantum.  In  the assessment of 	damages  for unlawful  arrest and detention regarding  Claim 1  	as well as Claim 2, it is important to bear in mind that the  primary 	purpose is not to enrich  the aggrieved party but to offer him or 	her some much  needed solatium for his or her injured feelings.    	It is therefore crucial that serious attempts be made to ensure 	that the damages awarded are commensurate with the injury 	inflicted. However, our Courts should be astute to ensure that the 	awards they make for such infractions reflect the importance of 	the right to personal liberty and the seriousness with which any 	arbitrary deprivation of personal liberty is viewed in our law.   It is 	impossible to determine an award of damages for this kind of 	injuria with any kind of mathematical accuracy.   Although it is 	always helpful to have regard to awards made in previous cases 	to serve as a guide to such an approach, if slavishly followed can 	prove to be treacherous.  The correct approach is to have 	regard to all the facts of the particular case and to determine 	quantum   of damages on such facts.   See:   Minister of Safety 	and Security v Tyulu 2009(5)   SA 85 (SCA).  The parties’ counsel 	referred me to a number of judgments, which I shall for the 	purposes of this judgment only consider as a guide.  I also 	considered the fact that the time spent in detention should not 	be the only factor to consider when awarding damages of this nature and that all the circumstances must be considered.   The plaintiff testified that he felt he was abused, oppressed and deprived of 	his freedom arbitrarily and without just cause. He was restricted in 	his freedom of movement and he was detained by Maluleke without him having properly investigated the charges against him.  He was treated in a degrading manner by being detained in conditions that were uncomfortable and dirty.    It was very 	cold in the cell and he was only given one thin blanket which was very dirty.   He was in pain and could not wash his sores properly from the injuries sustained after he was assaulted by Abie Mohapi.  He was not allowed medication for his injuries.   

[8.1] 	I however find it important to take into account that the police 	failed to have regard to the plaintiff’s complaint that he was 	being harassed by Abie Mohapi.  The cumulative effect of these 	arrests on 24 and 25  September,   as well as the subsequent 	detentions 	reveal that Mr Mohapi was bent on having the 	plaintiff arrested without any probable cause.  The police 	failed to protect the plaintiff from the abuse and harassment 	by 	Abie Mohapi.  

[8.2] 	An amount of R30 000 as suggested by the defendant’s Counsel   	regarding Claim 2 would not reflect the importance of the right 	to personal liberty and the seriousness with which any arbitrary  	deprivation of personal liberty is viewed in our law.

[8.3] 	I am of the view that a fair and appropriate award of 	damages in the circumstances should be R30 000 for the 	unlawful arrest and detention of 24 September 2011, and 	R100 000 for the unlawful arrest and detention of 25 to 27 	September 2011.   

ORDER 

In the result the defendant is ordered to pay the plaintiff the following amounts: 

(i)			Claim 1 – R30 000 (Thirty thousand rands).
(ii)			Claim 2 – R100 000 (One hundred thousand rands).  
		TOTAL    - R130 000 (One hundred and thirty thousand 			rands).
(iii)			Interest at the rate of 15, 5%   per annum on the aforesaid amounts from the date of judgment to date of final payment.  
(iv)	    		Costs of suit:    These to include costs occasioned by the 	postponement on the 14 August 2014. 

________________
J BALOYI 	
ACTING JUDGE OF THE HIGH COURT, JOHANNESBURG	

Date of Hearing:            14 August 2014, 29 September and 01 October 2014
Date of Judgment:     20 February 2015

Appearances:

For the Plaintiff: 	MR LN NAIDOO FROM LOGAN NAIDOO ATTORNEYS
For the Defendant	: MR T HIGA
Instructed by	: THE STATE ATTORNEY JOHANNESBURG