John Keene, Richard Henry and Susanne Blendulf v The Minister of Safety and Security and The Minister of Defence: Gauteng High Court, Pretoria, Case No: 37587/2005
1. On 13 January 2005 a Captain Molapo of the SAPS and a fight-sergeant Banda of the SANDF conducted an investigation at the South African National Museum of Military History in Saxonwold which culminated in the arrest and detention of
1.1 Mr John Keene, the director of the South African National Museum of Military History;
1.2 Mr Richard Henry, the curator of Armoured Fighting Vehicles and of small arms at the museum;
1.3 Ms Susanne Blendulf, curator of the Insignia, Memorial Plaques, Postal History Collections and the Editor of the South African Journal of Military History; allegedly on grounds that the museum was in possession of 6 stolen armoured vehicles.
2. The function of the Museum is to collect items of military heritage and history and to maintain these for exhibition to the public and for educational purposes. Together with the Transvaal Museum and the Transvaal Museum the South African National Museum of Military History forms part of the Northern Flagship institution created in terms of the Cultural Institutions Act No 119 of 1998. It is recognised as one of the best museums of its type in the world.
3. Mr Keene, Mr Henry and Ms Blendulf were held overnight at the Kameeldrift Police Station, Pretoria . Mr Keene who had had an operation on 12 January to repair a detached retina had to undergo a further emergency operation on 14 January 2005 in consequence of his retina re- detaching during his detention.
On the morning of 14 January 2005 Mr Henry and Ms Blendulf were released at the Johannesburg Magistrates' Court after being informed by Mr Anil Singh the legal representative of the Departments of Arts and Culture that the State Prosecutor had declined to prosecute. Mr Keene was released later in the day after completion of his eye operation. He had been kept shackled to his hospital bed. He suffered further consequential damage to his eye and has lost sight in that eye. Ms Blendulf suffered acute post traumatic stress. [For a fuller account see here - Ed]
4. Mr Keene, Mr Henry and Ms Blendulf were represented by Advocates Paul Pretorius SC, Michelle Augustine and John Peters, instructed by Webber Wentzel, at the Gauteng High Court in Pretoria in an action for damages on grounds of unlawful arrest and detention and in respect of the consequences to the health of Mr Keene and Ms Blendulf arising from the arrest and detention.
5. The trial commenced on 4 March 2009 before Acting Judge Sapire and was completed on 10 March 2009. At the trial evidence was led on behalf of the Plaintiffs. On Mr Henry's evidence it was clear that the museum's acquisition of military vehicles and artillery pieces was fully documented and accounted for and that the investigating officers had been fully apprised of this during their investigation.
One of the more shocking pieces of evidence, amongst many, to emerge at the trial was the evidence that flight sergeant Banda had on the night of the arrest at Kameeldrift Police Station ceremoniously held up and switched off his cell phone when Mr Keene's attorney, Mr Barry Whitter, had asked for his cell phone number so that he could be contactable for purposes of arranging a bail application during the course of the night of 13 January 2005.
6. Another shocking piece of evidence which emerged was that the entreaties of Mr Whitter that a district surgeon be summoned for the purposes of obtaining his consent for the administration of Mr Keene's medication by his wife who was present at the police station, was refused.
7. In addition, Mr Keene was kept shackled to the stretcher when taken to the Pretoria Eye Institute in the early hours of 14 January and was kept shackled to his hospital bed before and after his emergency eye operation. A police guard was posted in his ward to watch him.
8. At the conclusion of Mr Henry's evidence the Ministers of Safety and Security and Defence, without leading any of their witnesses, conceded liability and made a tender of settlement in the following terms:
8.1 "In full and final settlement of all the claims of whatsoever nature, by each of the Plaintiffs against the Defendants, and the Second Defendant conceding the merits of the Plaintiffs' claims regarding their arrest on the grounds of unlawful possession of stolen military vehicles and artillery pieces and acknowledging that such military property was not stolen and that the South African National Museum of Military History acted lawfully in regard to all such property, and without further admissions;
8.2 And that the Defendants shall pay the sum of R475 000 and party to party costs limited to:
8.2.1 There being no attorneys fees (the attorneys performing the work pro bono); only attorneys disbursements, including the qualifying fees of the Plaintiffs experts, the total of such disbursements and qualifying fees not exceeding R20 000.
8.2.2 Fees of senior and one junior counsel.
8.3 The Defendants shall pay the capital sum by 14 April 2009, failing which the contents hereof shall be made an order of court."
9. Mr Keene, Mr Henry and Ms Blendulf accepted the offer as tendered by the Ministers. More important to them than the financial aspect of the settlement as agreed, was the fact that the settlement vindicates their good names and that of the museum, establishes the unlawfulness of their arrests and vindicates the lawfulness of their actions and those of the museum.
10. Upon being informed of the settlement Acting Judge Sapire, made the following comments:
10.1 In addition an apology by the Defendants to Mr Keene, Mr Henry and Ms Blendulf would have been the proper and gentlemanly thing to have been done;
10.2 The judge observed that too many cases were coming before the Gauteng High Court where there is a lack of discretion in effecting arrests by arresting officers. He stressed that the power to arrest should be used with discretion, particularly in cases such as this, where the Plaintiffs were palpably venerable and good public citizens.
10.3 The judge continued that there are ways of securing the attendance of an accused person in court other than arrest. In too many cases, before the Gauteng High Court the power of arrest is used as a punishment in itself and not a manner to procure attendance in court.
10.4 The judge further expressed his grave disquiet that senior people, including the Ministers themselves, had not attended the proceedings in order to apprise themselves at first hand of what had happened. The judge stressed that the people in charge of the case should have been present to see how their unilateral statements are dealt with in court and in other cases of this nature. In that way, a lot of public money could be saved. He wanted this message to go down from the highest ranking members of the police to every constable.
10.5 Counsel for the Defendants stated that he had written memoranda to the senior legal advisors of the Ministers pointing out the shortcomings in the investigation in this case by Captain Molapo and flight sergeant Banda. He suggested that the state attorney should prepare a series of lectures for arresting officers by judges.
10.6 The judge stated that this case was a matter of public interest and that the public should know what had happened in this court. He said that he was speaking these words deliberately in public, and that his words should be heeded.
Statement issued by Webber Wentzel, Johannesburg, March 11 2009