Kami v Minister of Police and Another

• Jurisdiction: South Africa
• Judge: B Hartle J
• Judgment Date: 18 February 2022
• Court: East London Circuit Local Division
• Docket Number: ECD 2533/2016
• Citation: 2022 JDR 0748 (ECGEL)

Hartle J:

Introduction:

[1]

The late Mr. Sandile Kami ("the deceased") sued the defendants for damages for his claimed unlawful arrest and detention, and malicious prosecution, arising from a rape incident alleged to have been committed on 14 June 2015 at Needs Camp, East London, and in respect of which he was alleged to have been involved.

[2]

It is necessary at the outset to outline the details of this incident and its unique features as was primarily recorded in the contemporaneous statement of the complainant, Ms. Pamana, so as to appreciate the prosecutorial consequences which flowed from it. The parties at the present trial agreed that this statement (Exhibit A) be admitted into evidence on the basis that its contents were what had informed the relevant arresting officer regarding the nature of the offence alleged to have been committed according to the complainant, and his claimed justification for the deceased's arrest, detention and ensuing prosecution. Ms. Pamana, by the time of the trial, was deceased.

[3]

The gist of the complaint as appears from her statement is that on Friday, 13 June 2015, she had proceeded to a tavern near Needs Camp where she enjoyed herself with her friends. In the early hours of the morning, after leaving the tavern, they were approached by a group of four males who separated her from her other female friend and took her to bushes near the police station. She could not identify any of the men who had accosted her in this manner since it was dark and all of them had covered their faces. Three of the four took turns raping her and ejaculated inside of her. It is only the fourth suspect, who she identified in her statement as "Sive", who did not rape her. She related that when it came time for this person she had referred to as Sive to have his turn, he informed the other three suspects that he could not penetrate her because he knew her and that they were cousins. On this basis he also persuaded the other three men to apologize to her for assailing her. "Sive" then accompanied her home. En route a vehicle

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appeared which she flagged down to ask for help. Contemporaneously with her soliciting the driver's assistance on this basis, "Sive" fled the scene. The driver of the vehicle took her to her home.

[4]

On her arrival there she promptly reported the rape to her mother. Her mother also deposed to an affidavit which was entered into the record by consent marked Exhibit B. The first report which the complainant made materially conforms to the information as was related in Exhibit A except that the mother did not say that she was informed by the complainant of the names of any of the suspects.

[5]

These statements, together with the J88 medical report, which supports the probability that the complainant had indeed been raped, were the precursor to the police investigation and the deceased's arrest ultimately.

[6]

The plaintiff died after litis contestatio on 13 May 2017 and his estate was, by the time of the trial, represented by his father, Mr. Phuthumile Kami, who was formally substituted in his stead by order of this court dated 24 October 2017.

[7]

The claim for damages was made up of the following components:

7.1

unlawful arrest and detention for the period prior to his first court appearance;

7.2

unlawful detention for the period after the first court appearance, (for 38 days ensuing after his first court appearance);

7.3

malicious prosecution;

7.4

costs of defending the criminal case of the deceased;

7.5

damages; and

7.6

contumelia.

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[8]

Sub-items 5 and 6 above make no sense when read as self-standing claims, neither was it the plaintiff's case that something other than traditional damages were being sought arising firstly from the deceased's alleged unlawful arrest and his detention as a consequence and, secondly, upon his prosecution on the rape charge that was ultimately withdrawn. I accordingly read these "components" as simply forming part of the main claims.

[9]

As for the plaintiff's claim for special damages for the legal costs of defending the "failed" prosecution, no evidence was led as to the extent of these even though the fact that they were incurred is suggested from a transcript put up of the bail hearing which ensued shortly after the deceased was arraigned on a Schedule 6 charge of contravening section 3 of the Criminal Law Sexual Offences and Related Matters Amendment Act, No. 32 of 2007 ("SORMAA"). As a result, I granted absolution from the instance in this respect of this claim at the close of the plaintiff's case. [1]

The parties' "stated case": [2]

[10]

It is common cause that the deceased was arrested at his house by a police officer, one Sergeant Gcobani Tyafu, without a warrant just before midnight on 23 September 2015 and charged, on the face of it, of having contravened the provisions of section 3 of the SORMAA. As the evidence will reveal, he was arrested following a pointing out by the complainant. He was brought before the

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magistrate's court on 28 September 2015 on which day the matter was postponed to 2 October 2015. At his initial appearance he informed the court that he wished to apply for bail and the prosecutor indicated that she would oppose such an application. The court ordered that he remain in custody whilst arrangements were being made for the bail hearing.

[11]

On 2 October 2015 he was legally represented but the hearing did not ensue. [3] The matter was postponed ultimately to 5 October 2015 for the formal bail application during which time the deceased remained in custody.

[12]

At the end of the hearing bail was refused, and the deceased remanded to 27 November 2017. On 5 November 2015, pursuant to his having been requisitioned to court earlier, the charge(s) against him were withdrawn.

The pleadings:

[13]

The legality of the arrest was challenged by the plaintiff in the pleadings on the basis that it had been without any justification or excuse and that it had been for a purpose other than bringing the deceased to trial. It was further pleaded that the police had arrested him without ever considering the supposed explanation he offered (it is not clear what this was although his warning statement amounted to a denial of the allegations put against him, or that he had raped anyone) and/or the purported lack of identification or the implication of him by the complainant of the offence of rape in the matter under investigation. Also pleaded is that the police acted without critically considering an alternative or less traumatic manner of securing his attendance in court.

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[14]

The plaintiff pleaded that the arresting and investigating officer owed him a duty of care in relation to his arrest and detention prior to his first court appearance to assess the strength of the case against him and to determine whether there existed a prima facie case on this basis; to ensure that he not be detained in custody or that his detention not be extended when no such prima facie case existed against him; and to seek "the imposition of bail and (or his) release ON WARNING (in his favour), as the interests of justice dictated as such".

[15]

The claim for unlawful detention as against the police and the prosecution after the first court appearance are founded on the grounds that they acted maliciously and in concert with each other in opposing the granting of his bail. The malice contended for was alleged to be grounded on the basis that no legitimate basis existed for resisting his release on bail neither was there probable cause to prosecute him as there was no prima facie case against him. In addition, so it was alleged, they failed to place before the court all relevant information in his favour. [4] As against the police only, the plaintiff contends that the arresting and investigating officer acted without considering whether the deceased was in fact a flight risk and further that he acted in a manner that ignored his constitutional rights contrary to the presumption of his innocence.

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[16]

The malicious prosecution claim brought against both the police, and by implication the second defendant, [5] is based on the contention that in laying a false charge of rape against the deceased, neither arm of State had reasonable or probable cause for doing so; were actuated by malice and/or improper motives; and had no credible evidence incriminating the deceased in respect of the purported offence

The plea:

[17]

In the plea, the first defendant denied generally that the deceased had been unlawfully arrested by members of the service in full view of the public as claimed by the plaintiff. He pleaded, in amplification of his denial, that the deceased had been arrested by a police officer in the presence of his parents on a reasonable suspicion (on the basis contemplated in section 40 (1) (b) of the Criminal Procedure Act, No. 51 of 1977 ("CPA")), that he had committed a Schedule 1 offence, namely rape; that he had been informed of his constitutional rights; that he was detained in accordance with section 50 of the CPA; that he had been charged within 48 hours of his arrest; and that his further detention after his appearance before the lower court was by virtue of orders of court.

[18]

Also denied in the plea is the allegation that the continued detention of the deceased after his first appearance in court was unlawful, the first defendant setting it straight that the decision to oppose the deceased's bail was

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independently taken by the public prosecutor after an assessment of the case docket and that his further detention had been by virtue of orders of court. [6]

[19]

The second defendant denied the allegation that the...