Ntwagae v Minister of Safety and Security
| Jurisdiction | South Africa |
| Judge | Phatshoane J |
| Judgment Date | 27 March 2013 |
| Docket Number | 878/08 |
| Court | Northern Cape Division |
Phatshoane J.
Modisaotsile Alfred Ntwagae, the first plaintiff, instituted a claim for damages in respect of his alleged wrongful arrest and detention of 31 January 2007 against the Minister of Safety and Security, the first defendant (the first claim). He and Otlhalogantse Jameson Thebeapelo and Goitsemang Jimaima Thebeapelo, the second and third plaintiffs, instituted a further three claims for wrongful arrest and detention against the Minister and Inspector Patrick Moleko Dibebe, the second defendant. These claims were consolidated in terms of a Court Order dated 22 October 2010.
The plaintiffs are elderly citizens who at the time of their arrests were 65, 70 and 67 years of age, respectively. Mr Ntwagae claims to have been arrested on the morning of 31 January 2007 without a warrant and held until 14h00. It is not in dispute that all three plaintiffs were arrested without warrants on 16 March 2007 on a charge of kidnapping Thomo Mopalami, a five year old
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boy, who disappeared without trace on Sunday 28 January 2007 at or near Churchill Village, Northern Cape Province. They were released on bail on 22 March 2007. The charges against them were later withdrawn due to insufficient evidence to secure a conviction. The Minister denies that Mr Ntwagae was arrested at all on 31 January 2007 and held until 14h00. In respect of the second spate of arrests and detentions of 16 March 2007 the Minister and W/O Dibebe admitted the arrests and detentions but contended that they were lawfully effected within the purview of s 40 of the Criminal Procedure Act, 51 of 1977 (the CPA).
The first claim:
On the first claim Mr Ntwagae had to establish his arrest. From his evidence the following facts can be gleaned. He is a farmer who left school in standard 2. On Sunday 28 January 2007 while he was in the veld he saw wheelbarrow tracks and the footprints of a child. He was approached by a teenage boy next to his cattle-kraal who enquired if he had not seen the missing child. He told the teenager of the tracks and footprints. They parted ways. He was also approached by the police who asked him whether he had seen the child. He informed them as well about the tracks. The disappearance of the child ignited a fury in the Churchill community who went out in search of the child.
On 29 January 2007 whilst Mr Ntwagae was at his kraal one Mr Motlagosele, a policeman, came looking for him. Shortly thereafter a kombi with many police officers also arrived and demanded the child from him. They called Captain Gabaiphiwe Martha Letebele, the station commissioner of Batlharos, who also enquired about the child. The police took him to his home with sniffer dogs but did not find the child. He was taken to Batlharos police station for interrogation and later returned to his home. The next day the Vryburg police came to his home. They kicked opened his door and searched his house. They took him to his cattle-kraal where they dug around but found nothing of significance. They confiscated his cellular phone.
During the morning of 31 January 2007 Mr Ntwagae received another visit from the police while at his cattle-kraal. There he was grabbed, kicked,
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slapped and insulted by them. One of the police officers accused him of selling the child to his church for an amount of R85 000.00. He was handcuffed and taken to Batlharos police station where he was again assaulted. The handcuffs were removed. Although he was not locked up he was kept at the police station under the watchful eye of the police who accompanied him even when he had to go to the shops. He was released at 14h00.
On 3 March 2007 turmoil erupted again in the village to the point where the angry mob nearly burnt his home. This time the police came to his rescue. They locked him up in the police cells for two days. On his release he was advised not to go home. He resided with an acquaintance. The arrest and detention of 03 March 2007 are not in dispute. According to Capt Letebele, Mr Ntwagae was kept in a user-friendly facility; a house for the victims of crime in Batlharos.
The defence of the minister is as follows. Capt Letebele stated that she was not involved in the investigation and search of the missing child. She did not meet Mr Ntwagae on 31 January 2007. She did not assault him and was unaware of any assault that was perpetrated on him by other police officers. She surmised that Mr Ntwagae was not arrested because there is no record of his arrest reflected on the SAP 14 (the occurrence book).
The Constitution of the Republic of South Africa Act, 108 of 1996, guarantees everyone, inter alia, the right to freedom and security of the person, including the right not to be deprived of freedom arbitrarily or without just cause; not to be detained without trial; and to be free from all forms of violence from either public or private sources (s 12(1)(a)(b)(c)). The right to liberty is an intrinsic value of an individual's self-esteem and dignity and therefore a cardinal constitutional imperative worthy of protection from all interfering spheres. In Ex parte Minister of Safety and Security and others: In Re S v Walters 2002 (2) SACR 105 (CC) at 123 para 30 Kriegler J pronounced:
"[30] …The arrest of a person by definition entails deprivation of liberty and some impairment of dignity and bodily integrity. Where, in addition, it is accompanied by the use of force, the impairment of these rights is all the greater; and, ultimately, the use of potentially lethal force jeopardises the most important of all individual rights, the right to life itself."
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Mr Ntwagae was taken to task that in his particulars of claim he only mentioned that on his alleged arrest he was hit with an open hand yet when he testified he expanded to say that he was handcuffed, kicked, pushed and throttled. In response he intimated that he did not inform his attorneys of the further incidents of assault as he was angry. He also did not lay a charge against the police because they were the perpetrators. Ms Erasmus, for the Minister, argued that Mr Ntwagae was unhappy that a few days prior to his arrest his house was subjected to intense search without a warrant yet he failed to institute a claim in respect thereof. This was because, she argued, there was no infraction of any of his rights.
In his particulars of claim Mr Ntwagae further stated that Capt Letebele was amongst the police officers that were present when he was arrested. As his evidence progressed he conceded that Letebele may not have been present. His evidence should be seen in the light that there had been mayhem in the community following the disappearance of the child. Mr Ntwagae is an unsophisticated senior citizen. The incident took place at least three years prior to the commencement of the trial. Many officers were involved and he was accosted more than once. Therefore, the lack of sequence in the narration of the incidents is understandable.
As has been shown, the police were involved in the investigation of the missing child and had in one way or another been in contact with Mr Ntwagae. On the 31 January 2007 extract of the occurrence book at 06h32 the following inscription appears: "06:35: Crime prevention on duty: Capt Moeti, R/Cst Baotlwaeng, Elijah and R/Cst Semanego to Churchill for searcing missing child per S/V BMR 3748. Kilos 277589. Inspected by Capt Letebele." It does not end there because at 18h35 on the same day the following entry is made: "Capt Moeti to Churchill to hand a cellphone to Mr Matlotleng Ntwagae. Later on at 21:40 Moeti reports therein: "R/Capt Moeti: From Churchill from Mr Ntwagae. I found his family and no one wants to talk to me. I tried but all in vain. Then I came back with his cell phone and I handed it to CSC and it was correctly handed".
Mr Ntwagae's evidence to the effect that he was arrested in the morning and held until 14h00, is to a certain extent, supported by that of his son who testified that in the afternoon of 31 January 2007 the police brought his father
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home. When he enquired from the police what happened to him he was told to enquire from his father. His father told him that he was accused of kidnapping and selling the child. He did not notice any signs of torture on him but noticed that he was distressed.
By and large Mr Ntwagae's evidence was not seriously challenged. The only witness called for the Minister, Capt Letebele, was unable to testify on the incidents of 31 January 2007 save to state that she ascertained from the police records that Mr Ntwagae was not arrested. Her denial that she was not involved in the investigation is at odds with the occurrence book entries of the day described in para 11 above. Deprivation of liberty constitutes an arrest. See Mahlongwana v Kwatinidubu Town Committee 1991 (1) SACR 669 (E) at 675D where Mullins J held:
"…(T)hat the mere act of arrest itself involves deprivation of liberty, but our law recognises a clear distinction between the act of arrest, which may occur anywhere, and the act of detention in custody, which involves incarceration after the arrest, and pending the taking of further procedural steps. The power granted to 'detain' may in particular circumstances include the power to arrest."
I am satisfied that Mr Ntwagae was arrested on 31 January 2007. An arrest without a warrant under s 40(1)(b) of the CPA is not unlawful where the arrestor entertains the required reasonable suspicion but intends to make further enquiries after the arrest before finally deciding whether to proceed with a prosecution, provided it is the intention throughout to comply with s 50 of the Act. See Duncan v Minister of Law and Order 1986 (2) SA 805 (A). Section 50, inter alia, provides that an arrested person...
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