Mongakgotla v The Attorney General 2010 1 BLR 13 CA

"Headnote: The appellant was cautioned, and then arrested and detained, on suspicion of having been involved in the commission of a robbery that was still under investigation. He claimed damages for his alleged unlawful arrest and detention. The High Court found that the arresting officer had harboured a reasonable suspicion that the appellant was involved in the commission of the robbery and dismissed the appellant's action. The facts upon which the finding of 'reasonable suspicion' was based were that the arresting officer had been given a tip-off that the robbery was committed by members of the Mongakgotla family, the appellant had been pointed out as a member of the Mongakgotla family, and the appellant had refused to answer questions by the police while they were conducting their investigation. The appellant appealed against the High Court's decision. Held: (1) The suspicion of the arresting officer was not reasonable because it was based on nothing more than a tip-off that the robbery was committed by members of the Mongakgotla family and a pointing out of the appellant as a member of the Mongakgotla family. (2) As a cautioned suspect the appellant was entitled to refuse to answer questions and his silence did not strengthen the reasonableness of the suspicion at the time of his arrest. (3) It followed that the appellant's arrest and detention for 16½ hours was G unlawful. (4) The appellant spent the night in a dirty and smelly police cell, and the blankets were dirty. He was unable to sleep at all and was provided neither with access to a shower nor with food. (5) In the circumstances an amount of P5 000 would adequately compensate the plaintiff for his injuria.

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