The Minister of Safety and Security v Xhego

• Jurisdiction: South Africa
• Judge: White AJP
• Judgment Date: 20 March 2003
• Docket Number: CA & R 29/2002
• Hearing Date: 14 March 2003
• Court: Ciskei High Court

White AJP:

[1] This is an appeal against an award in respect of damages made by the magistrate, Mdantsane. For the sake of convenience the appellant will be referred to herein as the defendant, and the respondent as the plaintiff.

[2] In his particulars of claim the plaintiff, Xolani Xhego, averred that he had been wrongfully arrested on 19 March 1999 at East London by officers of the South African Police Services, who were in the employment of the defendant, the Minister of Safety and Security. The particulars continue that when the arrest was made the said officers neither held a warrant of arrest authorising them to do so, nor did they have a reasonable suspicion that the plaintiff had committed an offence specified in the first schedule of the Criminal Procedure Act 51 of 1977. The arrest led to the plaintiff appearing in the magistrate's court, Mdantsane, on 23 March 1999, on a charge of public violence, and being detained in prison until he was released on bail on 6 April 1999. The case against the plaintiff was

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eventually withdrawn by the State on 10 August 1999. The plaintiff claimed the following damages arising from the wrongful arrest and detention, and the malicious prosecution:

'Wrongful arrest	R10 000
Malicious prosecution	R10 000
Unlawful detention	R10 000
Contumelia	R20 000
Total	R50 000'

[3] In his plea the defendant admitted that the plaintiff had been arrested, charged and detained, but denied that those acts were wrongful or malicious, or that he was liable for any damages.

[4] At the conclusion of the trial the magistrate found that the police officers in question had arrested the plaintiff without a warrant and without holding, as is required by s 40(1)(b) of the Criminal Procedure Act 51 of 1977, a reasonable suspicion that the plaintiff had committed an offence specified in Schedule 1 of the Act. She consequently granted the following order:

'The Court will therefore make the following award:

Wrongful arrest	:	R7000
Malicious prosecution	:	R2 500
Unlawful detention	:	R7 500
For contumelia	:	R 300

Plus interest at the rate of 15,5% per annum.

Plus costs and interest at rate of 15,5% per annum.'

[5] The facts of the case are, with minor exceptions, not in dispute. Taxi violence had

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existed in the East London/Mdantsane area since 1995 to the date of the trial in 2001. It reached its peak during 1998/1999. On 16 March 1999 Inspector de Swart and other policemen were called to a taxi conflict between Melta and Melta Non Racial Taxi Organisations at Highway Taxi Rank, Mdantsane. Members of Melta, aided by a green Toyota Corolla with registration number NXX580T (the green Toyota), 'pulled' a blue taxi of Melta Non Racial off the road and commenced 'draining' the passengers from it. When members of Melta Non Racial went to the assistance of the driver of the taxi, the policemen present also approached it with a view to calming down the situation. In the ensuing chaos three shots were fired and the green Toyota and a white Opel Kadett sped from the scene. Three empty cartridge cases were recovered from the scene and de Swart opened a docket on a charge of public violence.

[6] On 19 March 1999 Inspectors McKerry and Wewege, and Sergeant Kwali of the Dog Squad of the South African Police Services were patrolling the taxi ranks in East London. At 9:20 they observed a 'suspicious' green Toyota parked in Magnolia Road, North End, East London. They considered it suspicious because they had received a report that they must look out for a green Toyota Corolla with registration No NXX580T, which had been involved in the public violence referred to in para [5] above. There were four occupants in the vehicle, one of whom was the plaintiff. They were all members of the East London Taxi Association (ELTA). According to Inspector McKerry, when the occupants of the green Toyota saw the police vehicle, it moved off into Milner Road. The police officers

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followed it and then stopped it by activating their blue light and siren. There is a dispute whether the police searched the occupants or whether two of them voluntarily produced the firearms they had in their possession and the licences to possess the firearms. At least one of the firearms was cocked and had a bullet in its breech. The police then searched the vehicle and Inspector McKerry found a set of number plates NXX580T under the mat in the boot. On being questioned about the number plates the occupants told the policemen that the vehicle belonged to ELTA and that the number plates were those of the vehicle when it was bought during the previous week. They also stated that they had not been in the vehicle on 16 March 1999 and that there was a book which had to be signed by the person who used the vehicle, which would reflect who had used the vehicle on the day in question. On the windscreen of the vehicle was a clearance disc which related to registration number NXX580T, which differed from the number plates displayed on the vehicle. McKerry and the other policemen then contacted the violent crime division of the South African Police Services, who instructed them to send the occupants of the vehicle to NU1 Police Station, Mdantsane. They then arrested the Plaintiff and the other occupants of the vehicle on suspicion of having been involved in the public violence at Highway Taxi Rank on 16 March 1999. After informing the occupants of their arrest they had them transported to NU1 Police Station for further investigation of the matter. There they were questioned and incarcerated. They appeared in court on 23 March 1999 and were released on bail on 6 April 1999. The case against the plaintiff was withdrawn on 10 August 1999.

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[7] The chairman of ELTA, Eric Yona, testified on behalf of the plaintiff. From the record he appears to have been a very poor witness who was at times both evasive and contradictory. He testified that he purchased the green Toyota for ELTA three or four days before 19 March 1999. He sent someone to register the vehicle and that person must have forgotten to remove the old registration disc from the windscreen of the vehicle. Yona also sent someone to buy new number plates and he, according to Yona, must have placed the old number plates in the boot of the vehicle. Neither of these persons was called as a witness. I can only comment that this version of Mr Yona sounds highly improbable.

[8] When Yona heard that the plaintiff and the other occupants of the green Toyota had been arrested and taken to the NU1 Police Station, he went there. He apparently spoke to Inspector Mboniswa and to other members of the police, but, according to his evidence, he did not tell them that those who were arrested were not in the vehicle on 16 March 1999.

[9] Yona also testified that there is a book that must be signed by the member who wishes to use the green Toyota. Neither Yona, nor the plaintiff, produced this book in court, and there is no evidence that it was ever shown to the police. Similarly, the new licence of the green Toyota, which would have established the date on which it had been licensed and the registration numbers changed, was not produced. One does not know whether the failure to produce either the book or the licence in court was due to design or...