Dlamini v Commissioner of Police and Another (3237 of 2001) [2009] SZHC 169 (19 June 2009)

3. Costs of suit;

4. Further and/or alternative relief.

The facts of this case are sufficiently simple. The matters of common cause are that the plaintiff was on the fifteenth day of May 2001, arrested at his work place by employees who handed him over to the Police at the Swazi Plaza Police Post. From there, he was referred to the Mbabane Police Station where he was held and interrogated for the crime of car theft having been accused of stealing the keys of a vehicle belonging to the Department of Labour. Although the plaintiff was detained for a number of days in Police cells and thereafter, at the Sidwashini Remand Centre, he was later released without being prosecuted.

The plaintiff is a fifty year old man father of six and husband of one wife, an alleged Pastor of the Wesleyan Church, and a Society Steward of his church, who considers himself an important person in the community by reason of his last name; Dlamini.

In AD 2001 he was employed as a Government Security Guard at the Tinkhundla Department where he had worked for four to five years. His duties included guarding the buildings and vehicles belonging to the Tinkhundla Department situate at the Deputy Prime Minister's (DPM) Office. The plaintiff alleged that at the same premises, the Department of Labour, had its offices and kept its vehicles. He further alleged that while he had been responsible for the security of the vehicles belonging to the Tinkhundla Department, certain officers from a security company: Guard Alert Security Services, kept watch over vehicles belonging to the Labour Department. He testified that there was no duplication of duties among the guards belonging to the different Departments as they each had a guard house at the DPM's premises, his own guard house which he shared with other Government guards and Police Officers, situate at the entrance to the DPM's office a distance of about thirty metres from the guard house occupied by the security guards from Guard Alert Security Services who guarded the vehicles belonging to the Labour Department. He alleged that the vehicles belonging to the two departments were kept separately and that while he had no knowledge of where the keys to the Labour Department's vehicles were kept as he did not share a guard house with the Guard Alert Security guards responsible for those vehicles, nor were they at any time left in his care, he was aware that the keys to the vehicles belonging to the Tinkhundla Department over which he had responsibility were left on a hanging board in the kitchen of the Tinkundla office building. According to the plaintiff, the security guard from Guard Alert who usually kept watch during the day was one Msimbini while one Nkhosi kept watch at night over the Department of Labour vehicles. On 14/5/05, however, a different gentleman, one Mdziniso arrived on relieving duty and kept watch at night over the Department of Labour vehicles in the place of Nkhosi.

The plaintiff alleged that he reported for work at 4:00pm on 15/5/01, as was his practice. At about 4:30pm he was approached by some Police Officers who, alleging that some keys to one of the vehicles belonging to the Labour Department were lost, placed him in a vehicle and escorted by the said officers, taken to the Swazi Plaza Police Post. Over there although he was made to sit for a while, he was not told of the reason for his arrest when he was handed over, together with the Guard Alert's Mdziniso to an officer from the Mbabane Police Station. The plaintiff recounted that they were sent to the Mbabane Police Station where he overheard a police officer in a telephone conversation say that his case would be dealt with the next day. Thus was he placed in Police cells and detained thereat for four days: Tuesday until Friday. The plaintiff alleged more particularly, that he was detained at the instance of one Kina Dlamini, a Police Officer. The plaintiff testified that not only was he not told of the reason for his arrest, but he heard the said Mdziniso inform the Police that he had given keys to a certain gentleman and so had no idea why he was arrested and detained. The plaintiff further alleged that during the period of his detention in which he suffered the deprivation of basic amenities such as clean blankets, good food and reasonable sanitation, he was kept in a poorly-ventilated, dirty, smoky cell overcrowded with about thirteen occupants besides himself, all with unwashed bodies. He alleged that he was subjected to torture by Policemen who, taking him to an unlit room at night, beat him up and stomped on his feet while attempting to extract information on the whereabouts of a missing car key. According to the plaintiff, when their interrogation yielded no fruit, the Police Officers sent him to the Swazi National Court where he was given a return date and sent to the Sidwashini Remand Centre. At Sidwashini, he was able to take a shower, the first in four days. He alleged that he was grateful for this small act of mercy although in the dormitory in which he was kept, there was neither comfort (for there were no beds, only blankets) nor privacy.

The plaintiff testified that after he stayed in that place for two days: Saturday and Sunday, he was released without ceremony or explanation. So it was that a month after his ordeal, the plaintiff wrote per his counsel to the Police authorities to demand compensation for wrongful arrest and followed it up with a summons in court when no offer of compensation came forth. According to the plaintiff in bad faith, the Police per the officer who investigated the case against the plaintiff the said Kina Dlamini, placed him before court. He was however never prosecuted in the two years during which he attended court, as nobody showed up as the complainant and the Police investigating Officer Kina Dlamini eventually stopped attending court.

It is the case of the plaintiff that he was arrested by the Police without a warrant and detained in their custody and at their instance although there were no justifiable grounds to do so. He alleged further that by reason of the alleged wrongful arrest and detention, he lost his freedom, suffered discomfort, was deprived of the amenities of life et al. He alleged also that he lost his job as a result of the wrongful arrest and detention for although he was not dismissed from it, he was thought to be dishonest and he did not wish to continue in that employment for that reason. The plaintiff thus commenced the present action seeking the aforementioned reliefs the details of which are set out as follows:

1. Loss of dignity, reputation and good name;

2. Loss of amenities of life;

3. Loss of freedom;

4. Contumelia.

The plaintiff called no witness.

The defendants called four witnesses.

According to the first witness, he was a desk officer at the Mbabane Police Station at the time of the arrest of the plaintiff. The witness averred that when he received word telephonically from the Swazi Plaza Police Post regarding the case, he went there where the plaintiff was handed over to him. He alleged that he interviewed the plaintiff as to the whereabouts of the missing car keys belonging to the Department of Labour and that the plaintiff denied knowledge of same. Thereafter, he interviewed another gentleman, the aforesaid Mdziniso who had also been arrested. According to the witness, it was by reason of what Mdziniso told him that he felt there was a serious case for investigation because he believed that the theft of car keys would probably be followed by the theft of the government vehicle to which they belonged. The witness further alleged that he it was who detained the plaintiff after informing him of the reason for his arrest. Thus it was that he handed the plaintiff over to one Kina Dlamini an investigator, for investigations to be conducted.

Commenting on the treatment of prisoners and the facilities at the Police cells, the witness informed the court that there were adequate toilet facilities at the Police cells and that a prisoner who wished to take a shower was usually shown where to do it. Denying that the plaintiffs cell had been smoky, he added that as a matter of practice, prisoners were not allowed to smoke as indeed, all their personal items (including cigarettes) were taken before their detention. He however did not say what obtained at the time of the plaintiffs arrest in 2001 and indeed conceded that he did not know the particular treatment that was meted out to the plaintiff while in the custody of the Police.

An officer of the Department of Labour authorized to use government vehicles was next to testify in support of the defendant's case. He testified that he usually left the keys to the Department of Labour vehicle he was using, at the guard house to the left of the entrance to the Tinkhundla Department. Alleging that both the Department of Labour and Department of Tinkhundla vehicles used a common parking lot with reserved spaces for the Labour Commissioner and the Deputy Prime Minister, he maintained that the guard house which he referred to, was manned and used by all the guards in charge of both Departments although there was an unused guard house at the basement of the multi-storey building housing the offices of the Departments of Labour and Commerce. According to him, on 15/5/01, he left the keys at that usual place by simply dropping them through the window of that guard house when he closed from work, he did not leave them in the care of the plaintiff or any guard. When he went the following day to retrieve the keys however, they could not be found. So it was that he with others decided to make a report to the Police in line with government procedure. At the Police station, he and his companions allegedly simply reported that they had lost the keys to the vehicle they were using. The Police then decided on who to arrest therefor.

The police officer in charge of the "Occurrence Book" desk at the Swazi Plaza Police Post testified in further support of the defendants' case, that on 15/5/01, he was at post when five persons: including the plaintiff, came to his office with a report that car keys had been stolen from the Labour Department. The report was received from one of the men, Simelane against two of them: the plaintiff and one Mdziniso. The two gentlemen aforesaid were said to be responsible for the guard house where the keys were kept. The witness recounted that he interrogated Mdziniso first and was apprised of certain matters relating to the loss of the car keys including his allegation that the previous day, a gentleman had come to the guardhouse looking for the plaintiff and had waited for him in his absence in the guardhouse with Mdziniso. He alleged that although interrogation of the plaintiff with regard thereto yielded only a denial, the plaintiff allegedly admitted that he had had a conversation with such a person at the premises. It was at this point he said, that he believed that there was a case against the two gentlemen and although he did not arrest them, he handed over the case to three officers from the Criminal Investigations Department for investigations.

The said Mdziniso, a former security guard from Guard Alert who had been posted to the DPM's premises as a guard for the Department of Labour the day before the plaintiffs arrest, gave evidence as the last witness for the defendant and recounted the events that led to the arrest of the plaintiff and himself. The witness alleged that while at post at the common guard house at the entrance of the DPM's office premises around 5:00 am on the 15/5/01, a gentleman unknown to him came to him and introducing himself as an employee of the Tinkhundla Department, asked for the plaintiff who was also on duty, guarding the premises of the Tinkhundla Department. This was in the absence of the plaintiff. He testified that when the plaintiff arrived, he entered the guard house with the gentleman. The witness at this point allegedly left the two men in the guard house. He alleged that the plaintiff went out, leaving the gentleman alone in the guard house and that the witness upon re-entering the guardhouse, found the gentleman fidgeting with some car keys that had been left at the place as well as with vehicle immobilisers. He also went out of the guardhouse, leaving the gentleman on his own. The witness further alleged that the plaintiff did not return to the guard house and that later when it was time for the witness to close from his duties, he walked out of the premises with the gentleman who allegedly wished to take a shower at a place near the witness' house. As they walked on, the gentleman allegedly informing the witness that he had left his car for safe­keeping with a teacher at the MDS High School, took some keys out and pressed same. He then allegedly asked the witness for E10 for tea and bread and followed the witness to his house for that sum of money. He however apparently left for his own house when he could not get the money but returned not long after, this time to borrow trousers from the witness. He allegedly left finally when the witness failed to honour his request. According to the witness, all these occurred between himself and a man he did not know and whose name he never found out.

According to the witness, he was arrested later in the day when he reported for work. Before that happened however, he was picked from his house by his superior officer and another gentleman who took him to the DPM's office and informing him that car key belonging to the Labour Department was lost, asked him of its whereabouts.

These were apparently what the witness having been arrested, informed the police. According to the first defence witness, this occasioned the arrest of the plaintiff.

At the close of all the evidence, these matters stood out as issues for determination:

1. Whether or not the plaintiff's arrest and detention were unjustifiable and thus unlawful;

2. Whether or not the plaintiff is entitled to his claim.

The plaintiff having sued the defendants for wrongful arrest and detention, led evidence that he was on 15/5/01 taken from his work place to the Swazi Police Post where he was arrested by the police and placed in detention for a period of seven days. He testified that at the time of his arrest he was going about his work peacefully, and that he was not informed of the reason for the arrest until after he was detained and was subjected to interrogation. The plaintiff further testified that although he denied knowledge of the theft of car keys belonging to the Labour Department, he was not spared arrest and detention and the torture that followed for the purpose of extracting a confession from him. The plaintiff testified that not only did he not have anything to do with the charge of theft for which he was arrested, but that he could not have, as he was employed to look after buildings and vehicles of the Tinkhundla Department and not of the Labour Department which had its own security guards from Guard Alert Security Services. He averred that the said security guards had a different guard house from the one he occupied, and that no-one from Labour Department had left car keys with him. For this reason, he alleged that he was so unconnected with vehicles and keys belonging to the Labour Department that there was no justification for his arrest and even less for his detention for seven long days when that outfit lost car keys.

It is now settled law that in a claim for wrongful arrest and detention, the plaintiffs burden is to establish that he was arrested, the burden of establishing that it was justifiable and lawful is upon the defendant, see: Ziyane v. Attorney-General Civil Case No 396/89 (Unreported) at p.4. The defendants herein have acknowledged that the plaintiff was indeed arrested by Police Officers who did so without a warrant. They have however relied on this defence: that the arrest and detention of the plaintiff were justified as they were grounded on a reasonable suspicion that the plaintiff committed the crime of theft for which he was arrested and detained in accordance with the provisions of S. 22 (b) of the Criminal Procedure and Evidence Act which reads:

"Every peace officer and every other officer empowered by law to execute criminal warrants is hereby authorized to arrest without warrant every person...

(b) whom he has reasonable grounds to suspect of having committed any of the offences mentioned in Part II of the First Schedule"...

In the discharge of this burden the defendants called four witnesses, the Police officer who received the complaint, the police officer who effected the arrest and handed hirn over for investigations to be conducted, the official of the Labour Department who handed the plaintiff over to the Police after the report of theft was made to them, and a gentleman arrested along with the plaintiff for the same crime. The court was informed that a material witness, the investigating officer referred to as Kina Dlamini could however not give evidence as he was deceased. The evidence of all these witnesses was led to establish that the arrest and detention of the plaintiff were justified as they were based on a reasonable suspicion that he had stolen the car keys belonging to the Labour Department, the crime that was under investigation. It was the evidence of the officer of the Labour Department, who with others went with the plaintiff (and indeed Mdziniso) to the Police, that they had only made a report to the police regarding the loss of car keys belonging to the Labour Department and the decision to arrest the plaintiff was made entirely by the Police and not at their instance.

It was the evidence of the two Police Officers one receiving and the other arresting, that the plaintiffs arrest was predicated upon information they received from Mdziniso regarding the circumstances surrounding the theft of the car keys. Mdziniso, as aforesaid gave evidence and testified regarding the matters he informed the Police officers about which led to the arrest of the plaintiff.

Did the sum of pieces of evidence result in the discharge of the burden laid on the defendants to prove that the acts of arresting and detaining the plaintiff in these circumstances were justified?

It seems to me that they did not, and I say so for reasons appearing hereunder. But before I set about my task of assigning reasons, I must first state that the test of establishing that the arrest and detention were for probable cause, that is, that there was reasonable suspicion that the plaintiff had committed the crime for which he was arrested and detained, is that the defendants had to demonstrate that the information the police officers had at the point of arrest was such that as would inform an honest belief in the guilt of the plaintiff. It had to be of such quality that a reasonable prudent and honest man would arrive at the same conclusion, see: Lukhele, Maxwell v. Attorney-General 1987-95 SLR Vol.4 65.

For this, it would suffice that the circumstances were compelling. They did not have to amount to positive evidence against the plaintiff regarding the crime alleged to have been committed, see: Bhembe v Commissioner of Police and anor Appeal case No. 55/2004 (unreported) at p. 8, see also the dictum of

Macdonald CJ in S v. Ganyu, 1977 (4) SA 810 (RAD )at 813 C: "In deciding whether a reasonable suspicion has been proved, it must of necessity be recognized that a reasonable suspicion never involves certainty as to truth..."; see also, per Jones J in Mabona and Anor v. Minister of Law and Order and Ors 1988 (2) SA 654 (SECLD at 658 "This is not to say that the information at his disposal must be sufficiently of high quality and cogency to engender in him a conviction that the suspect is in fact guilty...However the suspicion must be based on solid grounds. Otherwise it will be flighty or arbitrary and not a reasonable suspicion".

It was the duty of the defendants to demonstrate therefore through the adduction of evidence, that at the point of arrest, information placed before the Police suggested such complicity regarding the plaintiff as necessitated the conduct of investigation as to his involvement in the commission of the crime. The evidence led did not measure up to the said standard. It seems to me that when the plaintiff, a security guard for the Tinkhundla Department was taken to the Police regarding the theft of keys belonging to the Labour Department which had its own guard (as Mdziniso was), it was not enough for the Police to rely on the story of the said Mdziniso who was himself under suspicion, without more, to suspect the plaintiff of the crime. Indeed the content of the evidence of Mdziniso did not provide compelling evidence of the plaintiffs complicity in the crime of theft. Save for saying that a strange gentleman came and asked for the plaintiff in his absence, entered the guard house with the plaintiff later and was left thereat on his own by the plaintiff, nothing was said to tie the plaintiff to the crime of stealing the car keys that were found to be missing from the guard house.

Indeed it seems to me that the said Mdziniso cast suspicion on himself rather than on the plaintiff in his narrative for according to him, it was while in his company that the alleged visitor fidgeted with the keys. If he had already taken the keys while he was in the company of the plaintiff, it would be reasonable to suppose that he would not continue to play with keys when Mdziniso was left with him. Furthermore, on Mdziniso's own showing, he also left the gentleman by himself in the room and the plaintiff did not return to the room. I must add that it was curious for Mdziniso to say that not only did he leave the premises with the alleged gentleman whom he said he did not know, but he saw him holding keys which he said belonged to a vehicle that he did not see. The story of Mdziniso appeared more spurious as he recounted that through the long walk to his own house, amid the alleged conversation they had regarding car keys and the show of such keys by the gentleman and the other transactions of wanting to give him money and refusing to lend him trousers, Mdziniso claimed he did not know the man and did not get his name.

Against this background was the plaintiff who was not a Labour Department guard and thus had no responsibility for their property, and furthermore, had worked in that outfit and in the capacity of a security guard for upwards of four years. According to all reports, not only did he protest his innocence of the crime alleged, but he also denied that any such gentleman had come to hirn as Mdziniso, a relief guard alleged. It seems to me that if the Police had gone onto the premises, taken a look at the guard house from which the car was lost to ascertain whether the plaintiff had access to it before arresting him for the purpose of carrying out investigations, they may possibly have demonstrated that there was enough to inform a suspicion of the crime being investigated. Against the background of the plaintiffs four to five years of working at the premises, relying on the word of Mdziniso who as a relief Labour Department guard, had the responsibility over the missing car keys and who told a story that tied him more to a strange man whose existence only he could vouch for without more, to arrest the plaintiff, and detain him was not a justifiable act. Nor is it easy to understand why the Police failed to follow up on, and identify the strange man alleged to have visited the premises, fiddled with keys and was seen holding car keys after he left the premises, if only to tie him to the plaintiff. It must be noted that Mdziniso alleged that the man pointed him in the direction of his house.

As this was not done, and especially in face of the plaintiffs denial of the existence of such a man; bearing in mind also that the plaintiff had no responsibility over the property of the Department of Labour and therefore ought to have been tied to the loss of that outfit's keys only in exceptional circumstances, it seems to me that not only was the act of arresting the plaintiff and furthermore of detaining him, not justifiable, but it was not a responsible course of action.

I find then that the defendants who had the burden of proving that the arrest and detention of the plaintiff was justified, failed to discharge the burden and I hold the same to be a fact.

I hold in consequence that the arrest and detention of the plaintiff for a period of seven days was wrongful.

The plaintiff has alleged torture upon his person. He did not supply any corroborative evidence such as the evidence of a witness who saw him during or after the beatings, bruises on his person, or a medical certificate issued to him after his release. Although I grant that the length of time it took for this case to come to trial made it unlikely for bruises/scars to be exhibited, I still find that a medical certificate issued after the plaintiffs release from the police cells or the evidence of one who saw his state after the fact, would have served as corroborative evidence. Although corroboration is not always essential to the proof of an allegation, in this circumstance, it was. This was because the evidence of Mdziniso, arrested around the same time and for the same offence (indeed the plaintiff alleged that they were taken to the Mbabane Police Station together and interrogated in that dark room around the same time), could have supplied the needed corroboration of torture and beatings but did not.

The plaintiff lost his liberty for a total of seven days. During that time, he alleged that he was prevented from even calling his wife to inform her that he had been arrested. The mental distress which that circumstance occasioned cannot be ignored.

Although the court was told about unsavoury conditions in the police cells, no corroborative evidence was led in support of that. It seems to me however that this is one of the circumstances in which corroboration may not be imperative and the court ought to satisfy itself with the credibility of the witness. It so happened that an attempt to have an inspection in loco was abandoned as it was realised that the conditions that prevailed in the cells nine years after the incident of the plaintiffs took place (and that is how long this matter has been in court before trial commenced), would not perhaps be an accurate guide as to what the plaintiff was subjected to. The plaintiff alleged that he was not permitted to take a bath and that certain persons smoked in the cells giving him much discomfort. A feeble attempt to rebut this by the evidence of a Police Officer was unsuccessful as he acknowledged that he had not been in charge of the cells at the material time and would not know the treatment meted out to the plaintiff. I rely on the plaintiffs demeanour: the sincerity of his manner as he gave the evidence that was corroborated in part by the co-suspect now turned witness for the defence: Mdziniso who alleged that after an interrogation he was locked up in a dark room, to find that not only was the plaintiffs detention wrongful, but it was in unsavoury conditions which gave him much discomfort. I hold the same to be a fact.

The plaintiff has sued for damages for loss of his good name and reputation. Apart from saying that he was a pastor, society steward of his church and a Dlamini of Swazi Royal descent, he did not lead any evidence as to how much the incident affected his credibility and integrity in society. I cannot therefore find as a fact that he had a good name and good reputation which he lost. I however consider these in finding that the plaintiffs arrest and detention must have affected his credibility and integrity in his sphere of influence for I take judicial notice of the fact that a stint in police cells attracts some degree of opprobrium whether or not one is involved in the church or holds a high position in society. The plaintiff alleged that although he did not lose his employment at the Tinkhundla Department, by reason of the incident, he was uncomfortable enough thereafter to leave it because he believed the people there thought he was a thief. He had been employed there for four to five years before the incident. This was a personal feeling arising out of an invasion to the plaintiffs privacy and the right to a good reputation. All these count towards a finding in contumelia and I hold it thus to be a fact that the plaintiff suffered contumelia. I hold that the plaintiff is entitled to the award of damages for his wrongful arrest and all the consequential injury that he suffered.

What will thus be the measure of damages for a man such as the plaintiff for the

incarceration he endured and all that flowed from it?

I award damages to the plaintiff under the following heads of damage:

1. Loss of Liberty;

2. Contumelia.

This is because although loss of amenities and of reputation, dignity and good name were set out as heads of damage, no evidence was led in substantiation thereof and no findings of fact made in consequence.

There is no gainsaying that from the very fact of the wrongful arrest and detention of the plaintiff flow damage for which some compensation must be made. In considering the quantum of damages, I have regard to the fact that the plaintiff was arrested and deprived of his liberty for no reason save for a suspicion unreasonably held that he may have been involved in the commission of the crime of stealing car keys. It cannot be emphasised enough that in a society such as ours, the right of an individual to personal liberty is hallowed. An interference therewith for no apparently justifiable reason (as I have found) must thus be viewed with grave disapproval by the court and the award of damages must reflect this while also attempting to compensate the plaintiff for the infringement of his right to personal liberty. I award damages however guided by the fact that the award of exemplary damages, so popular in the English common law has been held to be inapplicable in this jurisdiction, see per Steyn J A in Zakhele Gina v. Commissioner of Correctional Services and two ors Appeal Case No. 72/2005

Having regard to these considerations, I award under the head of loss of liberty therefore, I award the sum of E 40,000.

The plaintiff is a fifty year-old husband of one and father of six who, according to his unchallenged testimony, was among the elders of his church holding the position of a society steward and also a pastor.

Beyond the indignities he had to endure at the police cells where he underwent interrogation was the fact of his arrest and detention in an open cell for persons suspected of crime, for a number of days and also at Sidwashini Remand Centre.

There is no gainsaying that a man deserves his privacy and the right to live quietly. When these are disturbed and he finds himself treated in such a manner as affects his reputation and leaves him feeling exposed to the censure of those within his sphere of influence (such as his work colleagues of upwards of four years), the personal feeling of humiliation arising out of loss of privacy is not easy to quantify. It is for this reason that in attempting some compensation for contumelia he suffered, I award to the plaintiff the sum of E 30,000. I make this total award of E70,000 guided by comparable awards in this jurisdiction. Steyn JA in upholding the award of damages for a High School student who was incarcerated for one hundred and seventy days in Zakhele Gina's case (supra) said that had he been in the position of the trial judge, he would have awarded much more.

In making the instant award, I have regard not only to the period of incarceration, but to the unfortunate circumstances under which the plaintiff was arrested and detained, to his age and standing in his society, the treatment meted out to him while under detention and the humiliation he suffered which prompted a change of employment even after he was released. I enter judgment for the plaintiff for the sum of E70,000 with costs.