Padima v Minister of Police of the Republic of South Africa

• Jurisdiction: South Africa
• Judge: VV Tlhapi J
• Judgment Date: 19 February 2015
• Docket Number: 080/2013
• Court: Limpopo Local Division, Thohoyandu
• Hearing Date: 19 February 2015
• Citation: 2015 JDR 2595 (LT)

Tlhapi J:

[1]

The Plaintiff instituted action against the defendant resulting from the alleged unlawful arrest and unlawful seizure of goods at the hands of employees of the Defendant who are members of the South African Police service ("SAPS"), stationed at Mphephu Police Station, Thohoyandou.

[2]

In paragraph 13 of the Particulars of Claim the following is stated:

"13

The arrest, the search and the detention were wrongful and unlawful because the

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arresting police officials and all other police officials involved acted negligently and failed in their duties in one or more of the following:

13.1

They arrested and searched the Plaintiff, and further seized her goods without the requisite warrants or without showing the warrants to the Plaintiff despite the Plaintiff's demand to see and be handed copies thereof;

13.2

At the relevant times thereto, they had no reasonable suspicion that the Plaintiff had or was committing an offence;

13.3

They failed to appreciate the Plaintiffs valid and lawful explanation that the goods found in her possession and control were lawfully in her possession and control;

13.4

They failed to exercise the necessary care and skill when, given the circumstances, they could or should have first ascertained that there were no reasonable lawful grounds or justification to arrest, search and detain the Plaintiff. They could have easily ascertained same by taking of simple investigative steps that no such grounds or justification existed but failed to take such steps;

13.5

They failed to ensure that the Plaintiff was released from detention as soon as possible;

13.6

They failed to ensure that the Plaintiff was not detained without lawful grounds; alternatively, they failed to ensure that the Plaintiff was detained in Police Cell where the Plaintiff would not be exposed to abusive, harsh and degrading treatment by fellow detainees, as she did; and

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13.7

They failed to timeously and formally inform the prosecutors of the lack of lawful grounds for the search, arrest and detention of the Plaintiff or the lack of the requisite evidence for the prosecution of the Plaintiff. Had they done so, as they could and should have done, the prosecutors would have obviously withdrawn the charges as soon as possible.

14.

During the detention, the Plaintiff was unable to work and generates income for herself which she otherwise would have generated through her transport services business had she not been arrested and detained....."

[3]

The Defendant pleaded as follows:

"9

AD PARAGRAPHS ............ 13, 13.1, 13.2, 13.3, 13.4. 13.5. 13.6. 13.7 THEREOF

9.1

The contents thereof are denied as is specifically traversed and plaintiff is put to the full proof thereof;

9.2

The defendant pleads further that the plaintiff failed to produce proof of purchase or satisfactory account of her possession of the seized goods on or before 2 July 2012;

9.3

The defendant pleads that the plaintiff produced satisfactory account on or

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before 2 July 2012, the plaintiff would not have been arrested and detained.

9.4

The plaintiff only produced proof of purchase as aforesaid on 8 November 2012 whereupon charges against her were withdrawn by the public prosecutor;

10.

AD PARAGRAPH 14 THEREOF

The contents thereof are denied and the plaintiff is put to the proof thereof."

[4]

The plaintiff alleged that she suffered damages and seeks compensation in the amount of R400 000.00 set out in the particulars of claims as follows:

R200 000.00 for the unlawful arrest, search and detention;

R100 000.00 for the infringement of dignity;

R 50 000.00 for shock, pain and suffering in detention;

R 48 000.00 for loss of income;

R2 000.00 for subsistence, fuel and transport spent for her court attendance;

On the basis that an arrest and detention is prima facie wrongful, the Defendant bore the onus to prove the lawfulness of its actions and therefore bore the duty to begin in respect of the unlawful arrest and detention.

[5]

Mr Thomas Sinthumule ("Sinthumule") was a captain in the SAPS stationed at Mphephu. He testified that after receiving complaints...