Mbozani v Minister of Safety & Security

• Jurisdiction: South Africa
• Judge: Maya, J
• Judgment Date: 05 June 2003
• Citation: 2003 JDR 0377 (TkH)
• Docket Number: 219/2002
• Court: Transkei High Court

Maya AJ:

This an action for damages in the sum of R250 000.00 for wrongful arrest and unlawful detention and defamation.

The parties considered that the issues to be adjudicated upon in the matter could not be conveniently decided separately, particularly as the Plaintiff's witness/es on both the merits and quantum were the same. The matter thus proceeded on the understanding that both the question of the Defendant's liability and quantum would be determined simultaneously.

In terms of their Rule 37 conference meeting the parties had also agreed that the Defendant bore the onus of proof in the proceedings and would commence with the leading of evidence. I found this to be a correct approach as the Defendant admitted the arrest and subsequent detention. This then placed the burden on him to prove the justification upon which he relied therefor. See Minister van Wet en Orde v Matshoba 1990 (1) SA 280 (A) at 284 E-H.

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Maya AJ

It was common cause that the Plaintiff was arrested at Port St Johns on 25 January 1999 and subsequently charged with murder, robbery and malicious injury to property. He was kept in detention for sixty four days until 2 April 1999 when he was granted bail by this court on appeal against the Magistrate's refusal to grant it. On 2 November 2001 after he had appeared in the district court on numerous occasions, he was advised that the Director of Public Prosecutions (hereinafter "the DPP") had declined to prosecute the matter. The charges he was facing were subsequently withdrawn.

The claim of R250 000.00 set out at paragraph 13 of Plaintiff's particulars of claim is constituted as follows:

"(a) Wrongful, unlawful arrest	-	R100 000.00
(b) Wrongful, unlawful detention for 64 days	-	R 64 000.00.
(c) Defamation	-	R 50 000.00
(d) Contumelia	-	R 36 000.00
		R200 000.00"

At the commencement of the proceedings I drew the attention of Mr Noxaka, the Plaintiff's attorney, to the fact that on a reading of the pleadings it did not appear that the Plaintiff had made any allegations which would support the claim for defamation. He conceded this fact and consequently made an application for the amendment of the particulars by the deletion of the heading of defamation under

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Maya AJ

paragraph 13(c) and the substitution for the sum of R200 000.00 of R250 000.00 at paragraph (a) of the prayer. The application was not opposed and I accordingly granted it. The effect of the amendment was thus two-fold in respect of paragraph 13 as it also automatically corrected the total sum of the claim which had been erroneously reflected as R200 000.00 instead of R250 000.00.

Three police officers who had been involved in the criminal proceedings were called to testify on behalf of the Defendant. The first witness, a Captain Khayalethu Gwayi who is a member of the Scorpions Unit in East London, stated that he was one of the police team which arrested the Plaintiff and was present during his interrogation. The relevant docket had been opened at Port St Johns where the offences had been committed. The matter had however been allocated to the unit to which he was attached at the time, the Murder and Robbery Unit in Umtata, for investigation. That is how he became involved in the matter. An Inspector Mtshiza, who has since died, had been the chief investigating officer in charge of the case. The Plaintiff was arrested on the strength of sworn statements of three eye-witnesses and survivors of the shooting incident, who directly implicated him in the commission of the offences. An operation strategy was formulated by the team and a collective decision taken to arrest the Plaintiff. They set out to arrest him without first obtaining a warrant for such arrest as they did not consider that one was necessary in the circumstances of the case, having regard to the serious nature of the offences involved, which all fell under Schedule I of the Criminal Procedure Act 51 of 1977 (hereinafter "the Act").

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Maya AJ

The arrest was effected properly and the Plaintiff was warned of all his rights under the law. He co-operated fully with the police and, in a warning statement he willingly made, gave an account of the commission of the offences which matched the one given by the eye-witnesses. He was subsequently assigned to a big case which involved a robbery at the Standard Bank which kept him fully occupied and was not thereafter involved in the case. He was however informed that investigations had progressed further and that the Plaintiff had even made a pointing-out after leading the police to the burnt remains of the vehicle which had been driven by the man who was murdered in the attack and had allegedly been used to chase other victims.

He was aware of a letter emanating from the office of the DPP in which the latter purportedly declined to prosecute the Plaintiff. He however questioned its authenticity in the light of available evidence, particularly as it had been signed by a filing clerk in that office whom they learnt had died. He had referred the docket back to that office for the DPP's reconsideration and decision. The matter is presently being dealt with by a Mr Venter of that office. He awaits his decision and believes that the Plaintiff may be recharged in the matter.

Mr Khaya Nomandela's brief testimony is that he is no longer a police officer and is currently employed by the Department of Justice attached to the Scorpions Unit. He was a member of the Murder and Robbery Unit responsible for investigation of the relevant criminal case against the Plaintiff. He was present both during the Plaintiff's arrest and interrogation which in his opinion were conducted according

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Maya AJ

to the law. He confirmed Captain Gwayi's participation in the matter at that stage.

He took the case over as its chief investigator on the death of Inspector Mtshiza.

At this stage a document in the letterhead of the National Prosecuting Authority of South Africa, addressed to the Public Prosecutor in charge of the Plaintiff's case at the Port St Johns district court, was handed in by consent and admitted into the record. Paragraph 1 thereof notifies of the DPP's decision not to prosecute the accused (the Plaintiff) at that stage and directs that a formal inquest be held into the death of the deceased in the matter.

The last defence witness, a Captain Sonwabile Nkosiyane, was also a member of the Umtata Murder and Robbery Unit at the material time although he is presently attached to the Serious Violence Crimes Unit. He handed into the record, with the Plaintiff's consent, two affidavits he said formed part of the docket in the criminal case. The two affidavits, in which the...