Endeshan v Minister of Safety and Security
| Jurisdiction | South Africa |
| Judge | AJ Louw AJ |
| Judgment Date | 07 April 2016 |
| Docket Number | 27012/2013 |
| Hearing Date | 07 April 2016 |
| Court | Gauteng Division, Pretoria |
A.J. Louw AJ
On the 11th May 2012 and in the district of Witbank the Plaintiff, who is an Ethiopian refugee, was arrested without a warrant of arrest in terms of
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Section 40 of the Criminal Procedure Act 51 of 1977 ("the Criminal Procedure Act") by Sergeant Combrink, a member of the South African Police Service who acted in the course and scope of his employment as an employee of the Defendant. Sergeant Combrink testified that the charge was that the Plaintiff was unlawfully in South Africa.
The facts of the matter are upsetting because the Plaintiff was a refugee and asylum seeker. As a foreigner and asylum seeker the Plaintiff was a vulnerable person. Our Constitution is committed to protect freedom, equality and dignity and is concerned to protect the vulnerable, exploited and powerless. See: Kylie v CCMA 2010 (4) SA 383 LAC, par 46 and 50; SATAWU v Garvas 2013 (1) SA 83 CC, par 61 and 63.)
It turned out, in the end, that he indeed was not an undocumented person or an illegal immigrant and his arrest and detention between the 11th and the 18th May 2012 were unnecessary, certainly very discomfortable and avoidable if the employees of the Defendant acted with deference to the liberty of the Plaintiff. The question to be answered is whether the arrest and detention were unlawful.
The Supreme Court of appeal in the Minister of Safety and Security v Sekhoto and Another 2011 (5) SA 367 (SCA) found in the context of where Section 40(1)(b) of the Criminal Procedure Act applied that there is no "fifth jurisdictional fact" for a lawful arrest of a person. The "fifth jurisdictional fact" being that there must have been no less invasive option available in order to bring the suspect before a court. In
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paragraphs 28 and 39 of the Sekhoto-judgment the Supreme Court of Appeal found that no such fifth jurisdictional fact can be read into the provisions of Section 40(1)(b) of the Criminal Procedure Act.
This matter concerns Section 40(1)(a) or Section 40(1)(I) of the Criminal Procedure Act and not Section 40(1)(b) thereof. I am however bound by the Sekhoto-judgment insofar as it found that there is no requirement that the Police must consider, before making an arrest, whether there are less invasive options to bring the suspect before the court than an immediate detention of the person concerned.
The unfortunate circumstances of the arrest and detainment of the Plaintiff in this matter highlight the plight of persons that might be lawfully arrested in terms of the provisions of the Criminal Procedure Act on the application of the principles regarding arrest laid down in Sekhoto, but where such arrest and detention were unnecessary in the broader circumstances of the particular matter. The purpose of arrest is to secure the attendance of an accused in court. See Sekhoto par 19. There are indeed other less invasive of the constitutional right to freedom ways to secure attendance at court of an accused person.
On the other hand I am acutely aware of the fact that the members of the South African Police Service must be allowed to do their work. One is obliged to consider the practicalities of their work where they have to take decisions without necessarily having the luxury of long reflection before deciding on a suitable course of conduct.
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Arising from the above concerns, I overly long delayed in finalising the judgment. I extend my profound apologies to both parties for the delay in finalising the judgment.
On the pleadings the Plaintiff's case is simple. He was arrested on the 11th May 2012 in the district of Witbank and was held in custody from the 11th May 2012 to the 18th May 2012 when the Public Prosecutor issued a certificate of nolle prosequi. As a result of the alleged unlawful arrest and detention, the Plaintiff claims R250 000.00 in general damages for loss of his freedom.
In the particulars of claim it is alleged that proper notice of the proceedings was given in terms of Act 40 of 2002. This however, actually was incorrect. A successful application for condonation was brought and the non-compliance with Section 3(2)(a) and (b) of Act 40 of 2002 was condoned by Jordaan, J on the 18th November 2013.
The Defendant's amended plea says that Sergeant Combrink arrested the Plaintiff on the 11th May 2012 without a warrant of arrest. It is alleged that the arrest was lawful in that the Plaintiff was arrested pursuant to the provisions of Section 40(1)(a) of the Criminal Procedure Act for contravening the provisions of Section 37(b) of the Refugees Act 130 of 1998 by failing to comply with the conditions subject to which his asylum seeker temporary permit had been issued to him. It is further alleged that
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the Plaintiff was detained at the instance of the members of the South African Police Service at the Vosman Police Station until the morning of the 14th May 2012 when he appeared in the Magistrates Court, Witbank. It is then further pleaded that the Plaintiff's further detention was pursuant to an order of the Magistrate, Witbank denying bail and remanding his case to the 18th May 2012. On the 18th May 2012 the Public Prosecutor withdrew the charges against the Plaintiff. It is further alleged that the Plaintiff is to blame for the loss of his freedom because the Plaintiff deliberately refrained from producing a valid asylum seeker: temporary permit which he apparently had, either to the Police during his incarceration over the weekend of the 11th May 2012 or to the court when he made his first appearance.
The parties handed in a bundle of documents that I marked Exhibit "A". The documents are all common cause between the Plaintiff and the Defendant. Amongst these documents are at page 11 of Exhibit "A" an expired asylum seeker temporary permit that indeed expired on the 5th May 2012. Also included in Exhibit "A" at page 8 of Exhibit A is a valid (as at date of the arrest of the Plaintiff) asylum seeker temporary permit dated the 9th May 2012 and that was valid until the 13th June 2012.
From this document it is accordingly clear that the Plaintiff was, at the time of his arrest and for the full period of his detention the holder of a valid asylum seeker temporary permit. For purposes of distinction I will
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refer to the said Exhibit "A" page 8 as the "valid asylum seeker temporary permit" and to the expired permit (page 11 of Exhibit "A") as "the expired temporary permit".
Although the Plaintiff did not take on any onus, the Plaintiff presented evidence first and the Plaintiff himself, a cousin of the Plaintiff, Mr DA Bjigo testified. Thereafter the Plaintiff's case was closed. The only witness that testified on behalf of the Defendant is Sergeant Combrink.
The Plaintiff testified that he is a citizen of Ethiopia and that he was arrested in Witbank/Emalahleni at the Kwa-Guqa Township on the 11th May 2012. At the time of his arrest he was in his shop. According to his evidence he earns more than R3 000.00 per day from his business. Sergeant Combrink approached him and requested his documents. He produced the expired temporary permit. Sergeant Combrink informed him that the validity period of the expired temporary permit had already expired. He explained to Combrink that he has valid papers at his home. As a fact this is correct as the valid asylum seeker temporary permit was already in existence and it is not in dispute that this document was at the Plaintiff's home on the 11th May 2012.
The Plaintiff testified that the valid asylum seeker temporary permit was issued on the 9th May 2012, i.e. some days after expiry of the expired temporary permit because Ethiopian applications for asylum are only
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dealt with at the Marabastad Office of the Department of Interior in Pretoria on Wednesdays.
The Plaintiff explained that he asked his brothers (it appears to be cousins) by telephone to bring the valid asylum seeker temporary permit to the shop. Combrink waited for a few minutes. The Plaintiff testified that his place of residence was not far from the shop.
After a short period of time, it appears not to have been longer than 15 minutes, Sergeant Combrink decided to arrest the Plaintiff. The Plaintiff testified that his family turned up with the valid asylum seeker temporary permit whilst he and Sergeant Combink were outside the shop and he was informed that he will be kept in custody until the said document will have been investigated. It is necessary to say that Combrink denies knowledge of the existence of the valid asylum seeker temporary permit and disputes the evidence that the papers were brought to the shop. The Plaintiff's witness also does not support him on this evidence and this evidence is also contrary to the Plaintiff's own evidence under cross-examination.
The Plaintiff was taken into custody, his fingerprints were taken at the Vosman Police Station and he was placed in a filthy cell with no toilet facilities. Again this part of his evidence was disputed by Combrink but I have no reason to doubt the correctness of the Plaintiff's evidence in this
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regard. Not alone were proper toilet facilities lacking, no blankets and bedding were provided and no food was provided over the weekend. His family brought him food. After his court appearance on Monday the 14th May 2012 he remained in custody and was taken to a different police station. Again toilet facilities were lacking. He did receive food once a day being a meal of porridge and salad. Again his family brought additional food to feed him. The Plaintiff and his fellow detainees were not allowed to make use of the toilet facilities outside the cells and had to relieve themselves in the cells...
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