IN
THE HIGH COURT OF SWAZILAND
Civ.
Case No. 1273/91
In
the matter of:
Shepherd
Melusi Nhlabatsi
Vs
The
Swaziland Government
CORAM :
Hull, CJ.
FOR
PLAINTIFF Mr. A. Lukhele
FOR
DEFENDANT Mr. Masuku
Judgment
(ex tempore) (25/3/94)
It
is common ground in this case that in February of 1991 the plaintiff
was arrested by the police without a warrant in Mbabane, and
thereafter detained for some days on an allegation of theft. He was
eventually released without being charged, and without, during the
time of his detention, having been brought before a Magistrate. In
the particulars of claim, the plaintiff alleges that he was arrested
on 28th February and released on 4th March. On the evidence for the
defendant, he was not released until 5th March. However no
application has been made by the plaintiff to amend his particulars
of claim in this respect, and I proceed on the basis that the
complaint that he makes is that he was wrongfully arrested and
wrongfully detained in prison from 28th February until 4th March.
The
plaintiff is alleging that he was wrongfully arrested and wrongfully
imprisoned. The defendant admits the facts of the arrest and the
detention but denies that the conduct of the police was wrongful.
There
are two issues in the case - the first is whether the defendant
2
detention
were justified; and the second issue is, if it has not done so, then
what is the appropriate measure of damages? It is common ground that
the defendant bears the onus of proving justification for its conduct
- the conduct of its officers - and secondly, that it must do so on a
balance of probabilities. And I refer to one of the cases cited by
both counsel in this case, a case which as so many of his cases do,
sets out clearly the relevant law on the subject - I am referring to
the case of Ziyane v. the Attorney General, a judgment of my
predecessor Chief Justice Hannah given in Civil Case Number 396/89 on
23rd November 1990; and on page 4 of that judgment, in the second
paragraph, he deals with the law which is applicable to the case and
he there held that, following Brand v. the Minister for Justice and
Another, 1959 (4) 712, and Newman v. Prinsloo and Another 1973 (1)
S.A. 125, the defendant, having accepted or having admitted that the
arrest was in fact made and that detention did in fact follow, then
the onus of proving justification does rest, on a balance of
probabilities of course, on the defendant.
The
defence called as a witness an experienced police officer, Sergeant
Dlamini, who was the investigating officer in the case. His evidence
was to the effect that he was present at the Mbabane Police Station
when reports were received - made by telephone to desk officers -
about an alleged theft of money - and on the evidence it became clear
that it was an alleged theft of money in a bag inside the Ministry of
Foreign Affairs, the amount involved being said to be E1,565. Now as
I understood Sergeant Dlamini's evidence - I think it was clear
enough - he was really saying that there were two phone calls, one on
27th February and one on 28th February. On his account the owner -
the complainant if you like, owner of the money that was taken - was
interviewed on the first day and a docket was opened.
And
then there was a second call on the following day and the effect of
that call, as I understand the evidence, was that a person had been
seen in the building - in the Ministry of Foreign Affairs building
-on the day of the theft; and effectively, I think, what was being
said was that that person was now known. It was known who the person
was who was in the building on the previous day. According to the
plaintiff's claim as pleaded, it was Sergeant Dlamini who effected
his arrest, and indeed it was the plaintiff's own
3
evidence,
and I would add further that that was also an admitted fact in the
plea in reply to the plaintiff's particulars of claim.
However
Sergeant Dlamini, when he gave evidence himself said, no, that was
not how it happened. He said that when the second call came, a desk
officer took the call and gave instructions for the arrest, and
Sergeant Dlamini was saying that he was not one of the persons who
went and arrested the plaintiff but that he, after he had been
arrested, caused him to be brought up from the police cells, where he
interviewed him. I think there is a consequence in that which I will
come to in due course, but I advert to that at this stage.
Having
been interviewed by Sergeant Dlamini, the plaintiff was then taken by
the sergeant to his own house, to a room - I think it was described
as that - in his house, where Sergeant Dlamini said, and it's not in
dispute, that he found E90 in a bag hidden in a wardrobe, if I can
put it that way - and when I say "hidden" in a wardrobe,
what 1 mean is underneath other items in the wardrobe.
And
it is also common ground that on his arrest the plaintiff had in his
pockets an amount which, according to the police - (and the plaintiff
didn't really disagree with this, he just didn't remember precisely
how much it was) - according to the police that amount was E73.50.
And so on the evidence, after his arrest the plaintiff was found to
be in possession of E163.50.
Now
Sergeant Dlamini said that he asked the plaintiff to explain how he
came into possession of the money, and as for the E90 he says that
the plaintiff's response was that that was money he was keeping to
pay his account with the Ellerines store. And as far as the money in
his pocket was concerned, he said that he had withdrawn money on
payday -on his payday - and that is how he explained the presence of
that money. He went further when asked to prove this, if you like,
he' then said that he had a bank book, but that it was with
moneylenders.
Sergeant
Dlamini said that he himself was not satisfied with that explanation,
and he said he also took into account information that he had to the
effect that the plaintiff, on the day of the alleged theft
4
had
come into the Ministry of Foreign Affairs building without
introducing himself and telling people in the building what his
purpose was. That, Sergeant Dlamini was saying, was one of the
factors that the he was taking into account in deciding whether or
not he was happy with the plaintiff's account of events on the day in
question.
Now
Sergeant Dlamini, in evidence, said that the reasons that he
suspected the plaintiff were as follows: first of all, on the
information available to him, he had entered the Foreign Affairs
building without introducing himself; secondly, according to the
information available to the sergeant, the plaintiff was not known
there; thirdly, that money was found in his possession when the
sergeant investigated the matter and that in the sergeant's mind no
clear explanation, or no satisfactory explanation, was given for that
money.
Now
it goes further than that, however, because Sergeant Dlamini did say
in his evidence that, as a result of enquiries, he had other
information available to him. He said that the plaintiff explained to
him that he had been sent by a certain Justice Dlamini to a Mrs.
Mkhabela but that he could not contact her. And in his evidence, the
sergeant did say here that he had spoken to Mrs. Mkhabela, who was
not called, but after all he was testifying as to what operated on
his mind and he said that she knew nothing about the plaintiff.
On
28th February, after he had been taken to his room by Sergeant
Dlamini, the plaintiff was also taken by him back to the cells where
he was detained. And he was detained, it is common ground, over the
weekend, at least until Monday the 4th of March and, as I say,during
that time he was not brought before a court of law.
Eventually
the bank book was produced, and it is common ground that what the
bank book showed was that on 25th February, the plaintiff had
withdrawn E300 from his account, and on 26th February he had drawn
another E190 from his account.
5
It
is also apparent from the evidence, and in fact it was agreed on the
evidence, that the plaintiff had denied that he had committed the
theft. Sergeant Dlamini, in testifying, said that the plaintiff was
eventually released on 5th March, but he also said that the plaintiff
had not ceased to be a suspect in the case. He gave the court to
understand that the matter was still an open file, and if in the
event now, some three years later, sufficient evidence was found to
proceed upon the charge, he himself would do so.
The
defendant also called as a witness a man who was the security guard
at the entrance to - I should say in the Foreign Affairs building on
the day in question. He gave evidence that, in fact, the plaintiff
came to the building three times during that day and each time he
went in without reporting to the security officer. I have to say at
once that, on the evidence, it was not established by the defendant
that there is a requirement to report to the security officer and in
fact, in the way in which he explained how he carries out his duties
in the Foreign Affairs Ministry, what he was saying was not that
there was an obligation to report to Security as you come in but
rather that it is the normal practice for people who come to the
building to introduce themselves as they come in, and that is the
evidence I have before me, as far as that is concerned.
He
was, however, also saying that on this particular day the plaintiff
appeared to be in a hurry on the occasions when he went in and out,
that he did not introduce himself but he was the only person, out of
a number of visitors whom he estimated to be at least thirty, who did
not do so. And I will proceed in this matter on the basis that that
information was available to Sergeant Dlamini when he was
investigating the case subsequently.
The
security officer said, in answer to a question which I asked him,
that the comings and goings, if I can put it that way, of the
plaintiff had aroused his suspicions, but it was also clear that he
himself did nothing about that. He did not report the comings and
goings of the plaintiff to anybody. It is also clear that after the
plaintiff had gone for the last time, the security guard was informed
that something had gone missing - that there had been a theft in the
6
building
- and I think in weighing his evidence as to whether or not his
suspicions were aroused at the time, one has to keep in mind the
possible effects of hindsight in that regard. But, however, the
important thing in that regard is not so much what he himself thought
but rather what Sergeant Dlamini was acting upon, and I do proceed on
the basis that Sergeant Dlamini had this information available to him
at the time when he took the action that he took.
The
plaintiff himself gave evidence in the trial. He is a young man -I
think he said he is 28 years old - is that correct? Yes. He is a
computer programmer. He is a civil servant because he was working at
the time in what is known as the CTA. I am not sure what CTA stands
for, but it is the central administration pool for motor vehicles. He
explained, and this was never challenged in the end, why he went to
the Foreign Affairs Ministry on 27th February.
What
he said was that the man he worked with asked him to deliver a note
to a person called Olivia who worked at Foreign Affairs, and he went
there just before lunch and went to the building to deliver the note,
but could not find her. He said that he made a second trip, and that
again he could not find her. He denies making a third trip.
And
as I say it was accepted by the end of the case that he did in fact
go to the Foreign Affairs in order to deliver a note.
He
said that on 28th February, while at his place of work, he was told
that he had to go back to the Ministry of Foreign Affairs to see the
Protocol Officer. And he said when he went across there - he was told
he must go, but he was not told why he had to go - when he went
there, he said that he found a Mr. Ndlangamandla there, whom I
understand to be a person who works in the Ministry of Foreign
Affairs, and also two police officers. And he said that Mr.
Ndlangamandla informed him that money was missing from the Ministry
of Foreign Affairs and he acknowledged, certainly in
cross-examination, that Mr. Ndlangamandla made it clear to him that
he was expected to give an explanation because of his visit there the
previous day. And I think, on hearing the plaintiff's evidence, it is
possible to reconstruct to an extent one aspect of this case which.
is this, that the plaintiff-said that
7
while
they were there a phone call was put through to the police station,
and he said it was after that that Sergeant Dlamini and another
officer came across to the Ministry of Foreign Affairs where the
plaintiff had been asked to go.
And
that, I think, as far as it runs, coincides to an extent with
Sergeant Dlamini's own evidence that on 28th February, he was in the
charge office when a phone call was received by the desk officer. To
that extent, I think the two accounts coincide with each other.
Now
the plaintiff said that in fact Sergeant Dlamini did come across to
the Ministry of Foreign Affairs, and that the plaintiff had to go
with him and another officer to the police station, where he was put
in the police cells. And he said that he stayed there for about an
hour before being taken out and taken to his house. He himself said
he did not consent to go to his house, although Sergeant Dlamini said
that he did tell him where they were going and that he did obtain the
plaintiff's consent to this visit. But apart from that, he does not
dispute what happened at the house, namely that E90 was found in a
bag at the bottom of the wardrobe, underneath other items.
He
confirmed that he was held in custody until, on his account, 4th
March, and he said eventually his bank book was produced.
He
said in his own evidence that, after he was released, Sergeant
Dlamini told him that he nevertheless had to report to him every
Monday - in other words on a sort of bail, if I can put it that way
-and he said that in fact he did so until July, but then in July
Sergeant Dlamini finally said to him "Well, you're free to go",
while on the other hand making it clear that the matter was still
under investigation. That itself might in this claim ordinarily be
relevant to the question of damages, but I am not going to take that
into account for this reason, that although this is what the
plaintiff said in the witness box, none of that was ever put to
Sergeant Dlamini. And Sergeant Dlamini has never had the opportunity
to say whether he himself agrees that that is what happened. So in
reaching a conclusion in this case I disregard that element as being
a factor against the defendant.
8
Now
the plaintiff also gave evidence as to conditions in the police cells
in which he was detained. Crown Counsel in the end did not seek to
argue that, if he was wrongfully detained, then it would have been an
unpleasant experience. I would, if necessary, have gone and conducted
a view in loco of the cells in questions, but I do not need to do
that and I have the evidence of the plaintiff and it is to the
following effect : The evidence is that he was kept in a very crowded
room. At the outset there were 18 people there altogether. They
eventually increased to 21 people. He said he could not sleep. He
found the food - I took him to be saying he found the food
unpalatable, and if I might put it this way, the drinking water not
palatable. In the event, he could not eat or drink the food that was
there. He said as a result of this experience, having to stay in this
cell for several days and not being able to sleep, he was affected by
- he says he has developed a persistent cough since then and that he
cannot stand up for any long periods of time as he previously could.
He was also saying that he has been affected nervously by the
experience. I have to say, as far as that goes, that he did not call
medical evidence to establish or in corroboration of his own
testimony that he had developed a cough because he stayed in the
police cells, or to give me any medical background as to his actual
physical condition in relation to his ability to stand for longer
periods of time, and also in relation to whether or not he is now
suffering from nervous tension. So I take his evidence into account
for what it is worth but there is a limit to how far I can, in the
absence of medical evidence, take it into real account in deciding
what I think the consequences should be because of those things.
.
However, what I do want to say at once is that I do accept, and I do
find as a matter of fact, that to stay in a police cell for the time
alleged by the plaintiff, in the circumstances of the cell which he
described and which I do accept, would, I have no doubt, be an
extremely unpleasant experience, quite apart from the question of
humiliation that arises when somebody is arrested and detained. When
I say it would be an extremely unpleasant experience, what I am
addressing myself to are the physical circumstances in which one
would be detained. In addition, of course, there would be the effect
on one's sense of dignity to be taken into account.
9
Well,
having said that that - and caning to the point - the question here
is has the defendant shown on a balance of probabilities that there
were reasonable grounds - sorry, that the arrest and detention were
justified? What the defence has to show is that there were reasonable
grounds for the police officer who arrested the plaintiff to suspect
that he had in fact committed a theft.
That
is the first thing they have to show.
The
very first difficulty in my mind that the defence faces is the one
taken at the outset of his final submissions, by Mr. Lukhele, because
on the defence's own case the people who did effect the arrest have
not come into court and given evidence as to what motivated them to
do so and on what basis they did so. And strictly speaking, I think
that is the end of the case as far as liability is concerned. In
saying that, I rely on the judgment given by my former colleague Mr.
Justice Rooney in Magagula v. the Commissioner of Police and Others,
Civil Case No. 455 of 1990, a judgment given on the 7th of February
1992, because if there is no evidence as to how the people who
actually effected the arrest did so, and why they did so, and on what
ground they did so, then it necessarily follows that the defence has
not discharged the onus of proof upon it, and it also follows that
the arrest was unlawful, as was held in that case, and indeed as
Chief Justice Hannah intimated in the case which I have already cited
of Ziyane. So I think the defence in this case, on the question of
liability, fails for that reason.
However,
I also want to consider the matter on the basis that the arrest was
made at the behest of Sergeant Dlamini as the Crown initially
admitted in its plea in response to the plaintiff's particulars of
claim.
What
it came down to was this. A bag with money in it went missing from
the Ministry of Foreign Affairs on the 27th of February; the
plaintiff was a person who was in the building at the time, which
gave him an opportunity to take the bag (I think that is how I will
put it); moreover he had come into the building without introducing
himself - and those three factors, in my view, are the, factors which
initially
gave rise to suspicion against him.
10
My
own view of that is as follows, that those three factors are not, in
themselves, sufficient to give rise to reasonable grounds objectively
for suspicion against a particular person and moreover, when one
takes the other factors into account in the case - the fact that he
was a civil servant; on the evidence that he was known to at least
one person in the building, namely a Mr. Pele, who actually greeted
him when he went there; the fact that, admittedly, he had business
going to the building to deliver a note; and thirdly the fact that
the security guard, when he saw him leaving, did not see him leaving
with a bag, which is what was allegedly taken - when those additional
factors are taken into account I do not think it could be said at all
that there is a sufficient basis there for suspecting, upon
reasonable grounds, that the plaintiff was the person, or may have
been the person, who took the bag from the Ministry of Foreign
Affairs.
Then
what else is there in support of the action taken by the police?
There is the fact that money was found in his pockets and that money
was found in a bag in a hidden location in his room afterwards. But
with due respect, that does not prove anything, nor in my view does
it even give rise to a reasonable basis for suspicion, because the
amount that was found in his possession came to a total of (by my
reckoning) just over E160; and it is perfectly clear that on the
evidence he had, within two days previously, from his own sources,
withdrawn E490 from his bank account.
And
on the whole of that I do not consider that that is a sufficient
basis for justifying, upon reasonable grounds, the arrest of a man on
suspicion of theft.
Sergeant
Dlamini said that he was not satisfied with the plaintiff's
explanation but, with respect, the test is not whether the particular
officer who is investigating a case is satisfied or not; and if I may
say so, in passing, it is very easy for people to take a negative
attitude and say "Well, you may say this but you don't persuade
me yet." That attitude can be taken, and obviously has been
taken in this case, because on the Sergeant's own account, he still
keeps this file open, even though it's three years old.
11
But
fortunately the law insists on a rather more rigorous standard. The
test is whether there are reasonable grounds for disbelieving
somebody, and suspecting that somebody has committed an offence.
I
would therefore myself conclude, for each of the reasons 1 have
given, that first of all the defence has not discharged the onus of
satisfying the court on a balance of probabilities that this arrest
was justified. It follows that both the arrest and the consequent
detention were, in the view of the court, unjustified.
And
then I come to the question of damages. The plaintiff is apparently a
respectable young man. He is a computer programmer. He seems to be a
well-presented young man. He was detained and he lost his liberty for
more or less five days. He had to stay in police cells, in very
unpleasant circumstances. I also take into account the sense of
indignity which I do not doubt that he would have felt, because of
all this. And I do not doubt too, without being specific about it,
that it has had its effect on him afterwards. I am not prepared to
hold that it has been shown that it has had specific medical
consequences, but I do not doubt that it has had an effect on his
nervous disposition afterwards, and I take account of what he has
said in that regard. In the case decided by my predecessor Chief
Justice Hannah, the case of Ziyane, the plaintiff was awarded in 1990
- which is now over three years ago - E5000 in damages for a period
of detention which admittedly did not exceed 60 minutes, but I have
to say at once, even though that is a very short period of detention
and the amount awarded was nevertheless E5,000, that that detention
was accompanied by circumstances very humiliating to the plaintiff
concerned, and I think that must have been a factor in Chief Justice
Hannah's mind in awarding damages.
It
is a matter of assessment and judgment, but my own view in this case,
bearing in mind the length of the detention, is that it would be
appropriate to award damages for the wrongful arrest and detention,
keeping in mind also the decision I have just referred to, in a sum
of E12,000.
I
say E12,000 because power is not to be abused. It is to be exercised
responsibly on proper grounds. It is very easy for someone
12
to
say "Yes, I have heard that but I am not satisfied." Public
officers have a more onerous burden than to take that stance. And I
also say it because if a person is detained in prison, or in custody,
for as long as five days, that is a gross intrusion on that person's
civil liberties, and I reach the figure of E12.000 taking those
considerations into account, weighing them against the amount of
E5,000 awarded by Chief Justice Hannah for a much shorter period of
detention, but in humiliating circumstances, in the case of Ziyane.
And
so my judgment will be that there will be judgment in the sum of
E12,000 damages for the plaintiff and the costs, of course, must
follow the event.
DAVID
HULL
CHIEF
JUSTICE
Puma Rihanna 