Nhlabatsi v Swaziland Government (NULL) [1994] SZHC 14 (25 March 1994);

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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


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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


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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


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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.


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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


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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


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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.


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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.


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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.


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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.


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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


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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