Mvu v Minister of Safety and Security and Another

• Jurisdiction: South Africa
• Judge: Willis J
• Judgment Date: 31 March 2009
• Citation: 2009 (2) SACR 291 (GSJ)
• Docket Number: 07/20296
• Counsel: MM Hinana for the plaintiff. ST Nkosi for the defendants.
• Court: South Gauteng High Court, Johannesburg

Willis J:

[1] This is a claim for damages consequent upon an alleged unlawful arrest and detention. It is common cause that the plaintiff was arrested without a warrant by the second defendant, acting within the course and G scope of his employment with the South African Police Service, during the night of 2 3 September 2004, at the Moroka Police Station, Soweto, held in custody there in the so-called 'police cells' and set free the following day in the afternoon when he was 'released on warning'. He was charged with malicious injury to property. The case turns on H whether the arrest and detention were unlawful. [1]

[2] The plaintiff is himself an inspector in the South African Police Service, attached to the Organised Crime Unit and is based in Mthatha. He has been a police officer since 1990. At the time of his arrest and detention he held the same rank as inspector, but was attached to the I detective branch in Mthatha. Since 1999 the plaintiff has been divorced from the mother of his twin daughters, Thandeka and Thembeka Mvu, who lived with their mother in Chiawelo. At the time of the plaintiff's

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arrest these two children were 15 years old. The plaintiff enjoyed a civil A relationship with the mother of these two children. The twins regularly visited him in Transkei and, from time to time, he would visit them here in Gauteng. At the time of the incidents giving rise to this claim the plaintiff was in Gauteng on work-related business and was based at the Sandton Police Station. He took advantage of the opportunity to visit his B daughters.

[3] It is common cause that the plaintiff became incandescent with rage with his daughters when he discovered that they had cellular telephones (cellphones) which they had received as a result of a 'love relationship'. He took the cellphones from them and threw them to the ground, C seriously damaging the cellphones in the process. The plaintiff has added an embellishment to the story, that he believed, by reason of what he had been told by his daughters' mother, that the cellphones had been given to his daughters by 'gangsters' in order to lure them into drug-trafficking. This was a further reason why he had acted as he did: he wanted to put an end to this unwholesome relationship. The plaintiff says that he D informed the second defendant about this aspect of the suspected 'gangsterism', but the second defendant denies this. Not much really turns on the point, but I shall deal with it later.

[4] The plaintiff's daughters, no doubt distressed, like most teenagers, at being deprived of cellphone contact with the world, went with their E uncle, Ntlahla Nhlapho, to lay a charge of malicious injury to property against the plaintiff, at the Moroka Police Station on 2 3 September 2004. The second defendant was seized with the matter. Acting on information given to him by the plaintiff's daughters, the second defendant telephoned the plaintiff at the plaintiff's cellphone at about 9 F pm. The plaintiff immediately travelled from Sandton to meet the second defendant. The second defendant decided, in view of the fact that it was common cause that the plaintiff had damaged his daughters' cellphones as he did, that he should arrest the plaintiff, which he did at about 10pm. The second defendant then proceeded to incarcerate the plaintiff in the police cells where the plaintiff spent the night with about G six other men, among whom were suspected rapists and robbers. The plaintiff, unsurprisingly, found this deeply distressing and humiliating. The second defendant seemed to believe that he had no option but to detain the plaintiff.

[5] There is a dispute as to whether the plaintiff did, in fact, produce his H 'appointment certificate' as police officer to the second defendant. This certificate is not a 'piece of paper'. Instead, it is a plastic card indistinguishable in shape, size and texture from the plastic credit cards, debit cards, membership cards, etc, of which the court believes it may fairly take judicial notice festoon the wallets of almost all the citizenry I nowadays. Again, not much turns on this factual dispute, as the second defendant admits that not only did the plaintiff inform him that he, the plaintiff, was an inspector, but also that the plaintiff's daughters told him that this was the case. Although the second defendant seemed to have changed his version as to whether or not the fact of plaintiff being a police officer was an easily verifiable fact, it is common cause that the second J

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A defendant removed from the plaintiff his possession of his police-issue firearm before placing him in the police cell. In other words, the act of taking possession of the firearm from the plaintiff would, in itself, have alerted the second defendant to the fact that the plaintiff was, in all probability, a police officer. It is scarcely probable that a person in B unlawful possession of a police-issue firearm would calmly present himself to the police station accordingly. I shall also deal with my finding on the factual dispute relating to the plaintiff's production of his 'appointment certificate' later.

[6] The plaintiff was arraigned on a charge of malicious injury to C property in the magistrates' court for the district of Johannesburg in Protea, Soweto, on 2 4 September 2004 and released on warning. He was warned to appear in court on 2 7 September 2004. On that date the trial was postponed to 1 6 November 2004. On 1 6 November 2004 the matter was struck from the roll. The charge was reinstated and the trial set down D for 5 October 2005. On 6 October 2005 the plaintiff was found not guilty and discharged at the close of the State's case in terms of s 174 of the Criminal Procedure Act 51 of 1977, as amended (the Act). It is not clear why this occurred, but it is ultimately irrelevant to the determination of the case.

E [7] Having regard to the principles and criteria set out in Stellenbosch Farmers' Winery Group Ltd and Another v Martell et Cie and Others; [2]African Eagle Life Assurance Co Ltd v Cainer; [3]National Employers' General Insurance Co Ltd v Jagers; [4]Baring Eiendomme Bpk v Roux; [5]Koster Ko-operatiewe Landboumaatskappy Bpk v Suid-Afrikaanse Spoorweë en F Hawens; [6]National Employers Mutual General Insurance Association v Gany; [7] and AA Onderlinge Assuransie-Assosiasie Bpk v De Beer, [8] I am of the view that the plaintiff neither acted as he did because he was worried about his daughters being lured into 'gangsterism', nor did he tell the second defendant this. As the second defendant observed, if this is G indeed what he believed, the most obvious way of dealing with the matter, especially as he was an experienced police officer, would have been to enlist the help of the police themselves. Moreover, intact cellphones would have provided valuable records of telephone calls that could have assisted in tracking down these 'gangsters'. The plaintiff,

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when pressed to explain why he did not act accordingly, could give no A satisfactory answer. In Ocean Accident and Guarantee Corporation Ltd v Koch [9] Holmes JA said:

'As to the balancing of probabilities, I agree with the remarks of SELKE, J., in Govan v Skidmore, 1952 (1) SA 732 (N) at p. 734, namely

". . . in finding facts or making inferences in a civil case, it B seems to me, that one may, as Wigmore conveys in his work on Evidence, 3rd ed., para 32, by balancing probabilities select a conclusion which seems to be the more natural, or plausible, conclusion from amongst several conceivable ones, even though that conclusion be not the only reasonable one.'

This dictum has been referred to with approval in innumerable cases. [10] C It hardly needs to be added that 'plausible' is not here used in its negative sense of specious, but in the connotation which is conveyed by words such as acceptable, credible, or suitable. [11] Having regard to the facts, disputed and undisputed, set out above, I consider the most 'voor-die-hand liggende en aanvaarbare afleiding' [12] and the more plausible, D acceptable and credible conclusion, on a balance of probabilities, is that the plaintiff acted as he did, in regard to his daughters' cellphones, in a moment of overzealousness, and perhaps even the overprotectiveness that is common among fathers when their daughters are teenagers.

[8] Employing the same fact-finding tools set out in para [7] above, I E conclude that the plaintiff did show his 'appointment certificate' to the second defendant at the Moroka police station. It is common cause that the plaintiff informed the second defendant of his status as an inspector in the South African Police Service. In all the circumstances of this case, it is hardly credible that the plaintiff would not have demonstrated this not unimportant fact through the simple expedient of producing his card F known as an 'appointment certificate'.

[9] In terms of s 40(1)(b) of the Act:

'(1) A peace officer may without warrant arrest any person -

. . . G

(b)

whom he reasonably suspects of having committed an offence referred to in Schedule 1, [13] other than the offence of escaping from lawful custody.' [Footnote added.]

Willis J

A In Duncan v Minister of Law and Order, [14] Van Heerden JA said that, in order to enjoy the protection of this section, an arrestor must establish the following four requirements: [15]

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