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[2015] ZAGPJHC 50
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Manga v Minister of Police (16783/2011) [2015] ZAGPJHC 50 (27 March 2015)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
CASE NO: 16783/2011
DATE: 27 MARCH 2015
In the matter between:
ELIAS
MANGA
...........................................................................................................................
Plaintiff
And
MINISTER OF
POLICE
.........................................................................................................
Defendant
SUMMARY
Arrest – legality of –
arrest without warrant by peace officer –
Criminal Procedure
Act 51 of 1977
,
sec 40(1)(b)
– jurisdictional facts present –
peace officer arresting plaintiff at police station for robbery which
is offence specified
in Schedule 1 of
Criminal Procedure Act –
peace
officer first seeking confirmation and verification of
allegations – reasonable suspicion – arrest lawful –
subsequent
detention of plaintiff at police station also lawful since
plaintiff not entitled to be released by police in terms of
sec
59(1)(a)
of
Criminal Procedure Act – reman
d by magistrate at
first court appearance – claims of unlawful and wrongful arrest
and detention and claim based on malicious
prosecution dismissed.
J U D G M E N T
MOSHIDI, J:
[1] The plaintiff has instituted action
against the defendant in which he claims damages arising out of his
alleged unlawful arrest,
detention and malicious prosecution. The
incident under discussion occurred at the Johannesburg railway
station, commonly referred
to as Park station (“Park station”),
on 3 August 2009.
THE BACKGROUND FACTS
[2] The facts that gave rise to this
action can be summarised as follows: In the summons the plaintiff
was described as a businessman
of Louis Botha Avenue, Yeoville,
Johannesburg. During July 2009 an armed robbery (“robbery”)
was committed at Klerksdorp
and the docket case number was opened
under CAS1482/2009. The investigating officer assigned to the
robbery case was Officer Karren
(“Karren”). During the
robbery case in Klerksdorp several complainants, including Mr Gift
Kangansaru (“Gift
Kangansaru”) were held hostage and
robbed of a substantial amount in cash including cellphones by
several robbers. The plaintiff
was a suspect in the robbery case.
At that stage the plaintiff’s address was given as Braksam
Towers, Unit 57, Bok and Wanderers
Streets, Joubert Park,
Johannesburg.
[3] There was also a robbery case on 31
July 2009 during which a Nigerian national, Mr Adeniyi Olatunji
Aladeselu (“Aladeselu”)
of Leopold Heights Building,
Claim Street, Hillbrow and other victims, were robbed of at least
R100 000,00 in a botched diamond
dealing transaction. A robbery case
was opened at the Hillbrow police station under CAS132/08/2009 (“the
Hillbrow case”).
The investigating officer assigned to the
case was Warrant-Officer Jethro Paul (“W/O Paul”). Gift
Kangansaru testified
in the present action as part of the defendant’s
witnesses. However, Aladeselu was not called to testify even though
his
statements formed part of the bundles before the Court. It was
common cause that the plaintiff was later arrested on 3 August 2009,
which gave rise to the instant action.
THE PLAINTIFF’S EVIDENCE
[4] The plaintiff testified as the only
witness in his claims. He said that on 3 August 2009 he had
accompanied his children on
their way to the Eastern Cape from Park
station. He placed the children in a bus. Thereafter he went to the
parking grounds of
Park station. He came across a gentleman who turn
out to be Gift Kangansaru, and who needed some help from the
plaintiff. The
plaintiff obliged and listened to Gift Kangansaru.
[5] The long and the short of the
events, was that Gift Kangansaru skilfully lured the plaintiff into
the police station at Park
station. Once inside, Gift Kangansaru
spoke to Warrant Officer M Mahasha (“W/O Mahasha”), who
was on duty. This was
about 15h00. Gift Kangansaru accused the
plaintiff of being one of the robbers who had robbed him at
Klerksdorp and later told
Mahasha so. The plaintiff denied the
allegations but remained largely uncooperative. Mahasha later placed
the plaintiff under
arrest for the robbery case. The plaintiff
denied that whilst at Park station, further complainants came forward
to link him to
the robberies. One of such complainants was a
gentleman called TJ, a friend of Gift Kangansaru. He said that Gift
Kangansaru
phoned this friend, who in turn phoned the Hillbrow police
station. The police from Hillbrow then came to Park station police
station
and arrested the plaintiff. The friend phoned by Gift
Kangansaru turned out to be Aladeselu.
[6] Contrary to other credible witness,
the plaintiff testified that he was only later that day (3 August
2009) formally arrested
and handcuffed at the Hillbrow police
station. He was charged with armed robbery which was not specified.
His constitutional rights
were not read to him. He was placed in the
cells where he joined other ten inmates. It was a small cell with one
toilet and he
slept on the floor. He was not visited by his family
during his detention. He was 67 years of age and married with
children.
THE PLAINTIFF’S FIRST COURT
APPEARANCE
[7] On 5 August 2009, the plaintiff
made his first appearance in the Johannesburg Magistrate’s
Court. He was remanded in
custody at the Johannesburg Prison. He
made several subsequent court appearances. On his own version, he
was denied bail due mainly
to his previous convictions. The previous
convictions included the use/possession/dealing in
dependence-producing substance (dagga),
and the illegal possession of
gold, committed in May 1991 and July 1995, respectively. The charges
against the plaintiff were
subsequently, i.e. 2 February 2010,
withdrawn by the public prosecutor for reasons explained later below
by the defendant’s
witnesses. The plaintiff denied any
complicity in the robberies.
PLAINTIFF’S CROSS-EXAMINATION
[8] The plaintiff was closely
cross-examined, I must hasten to observe that his evidence, both in
chief and during cross-examination,
was highly improbable and
unimpressive. His evidence that when he was approached by Gift
Kangansaru in the parking lot at Park
station, the latter was a
complete stranger to him, was false. He, however, said that he knew
Gift Kangansaru by sight only before
3 August 2009, as he, the
plaintiff, was a street vendor, selling food in the area of the
station. He could not explain why he
followed a complete stranger,
Gift Kangansaru, into the police station, and why he volunteered to
help such stranger with some
unspecified request for help. He
however admitted that he knew Aladeselu before 3 August 2009. He
used to visit Aladeselu’s
shop, a Cell C vendor. The plaintiff
changed versions in cross-examination on occasion. He could not
explain why two complainants
could identify him as one of the robbers
on the same day i.e. 3 August 2009. The plaintiff’s denial of
the Klerksdorp robbery
was also blatantly false as shown later. The
plaintiff initially denied that his constitutional rights were read
to him upon his
arrest and detention. However, when confronted with
the SAP14, the notice of rights in terms of the Constitution, at p
100 of Bundle
A, which he signed on 3 August 2009 at about 18h00, he
alleged that he was merely told to sign the document. It was common
practice
that a copy of the document was normally provided to a
suspect to retain the cells and to read at leisure.
[9] The plaintiff was truly not a
consistent witness. For example, his evidence as to why he gave the
police a false address on
arrest could not be understood entirely.
The same applied to the evidence as to why he could not supply his
identity book to the
police. He denied, rather unconvincingly, that
the charges against him were subsequently withdrawn simply because
his friends
intimated State witnesses, as testified by the
investigating officer, W/O Paul and as contained in the statement
made by Aladeselu.
The plaintiff also tended to answer questions in
cross-examination by asking questions. For example, when put to him
that Gift
Kangansaru pointed him out on arrest as one of the robbers,
the plaintiff asked why Gift Kangansaru refused then to testify
against
him in the criminal trial. When it was put to the plaintiff
that the arresting officer, W/O Mahasha, arrested him on grounds of
reasonable suspicion, the plaintiff retorted that he did not know
Klerksdorp at all. When further put to the plaintiff that the
police
believed that they had sufficient evidence to prosecute him
successfully, the plaintiff said that he had no comment. Further,
in
this regard, when put to the plaintiff that the charges against him
were not false or drummed up, the plaintiff kept quiet,
and the
question had to be repeated before he said that he had no comment to
make. To sum up, the plaintiff was truly not a credible
witness on
crucial aspects of this matter.
THE DEFENDANT’S EVIDENCE
[10] At the conclusion of the
plaintiff’s evidence, three witnesses were called on behalf of
the defendant. They were W/O
Mahasha (the arresting officer); Gift
Kangansaru; and W/O Paul. The evidence of W/O Mahasha, as arresting
officer, was undoubtedly
the most crucial in the context of this
case. However, I must commence with the evidence of Gift Kangansaru,
as the link.
THE EVIDENCE OF GIFT KANGANSARU
[11] Gift Kangansaru testified that he
was at Park station, Johannesburg, on the day of the arrest of the
plaintiff, i.e. 3 August
2009. He observed the plaintiff whom he
knew well. He testified in great detail about the plaintiff’s
involvement in the
Klerksdorp robbery. This included prior meetings
with the plaintiff in connection with a diamond deal. The plaintiff
lured the
complainants, including Gift Kangansaru, to the false
diamond deal in Klerksdorp. However, the plaintiff and his
accomplices had
other motives. In the end, and during the alleged
deal, Gift Kangansaru and other complainants were robbed of at
gunpoint their
money in Klerksdorp, amounting to approximately R150
000,00. Gift Kangansaru himself was robbed of about R50 000,00 in
cash by
the plaintiff and his accomplices.
[12] He testified that when he observed
the plaintiff at Park station on 3 August 2009, he at first became
emotional and angry.
However, on seeing the security guards in the
vicinity of the parking lot, he gathered courage, and approached the
plaintiff.
He asked the plaintiff about his money (R50 000,00).
Thereafter, he lured the plaintiff into the nearby police station.
He made
a report to W/O Mahasha in the presence of the plaintiff
about the plaintiff’s involvement in the robbery. At that
stage,
Gift Kangansaru said he had saved on his cellphone the case
number of the robbery which he had opened at Klerksdorp. The case
number was also referred to as a ‘pointing out note’.
Gift Kangansaru also had the cellphone numbers of the initial
investigating officer by the name of Karren. All of these he provided
to W/O Mahasha.
[13] At the time of his evidence, Gift
Kangansaru was a director at the Vine College where he had undergone
training in identifying
and dealing in genuine diamonds. He was
introduced to the plaintiff prior to the robbery. He had meetings
with the plaintiff.
The plaintiff promised to obtain for Gift
Kangansaru and his friends and colleagues, genuine diamonds. He knew
the plaintiff well
based on about three meetings with him. However,
it was during the third meeting on 31 July 2009 that they were lured
to this
false deal during which the robbery occurred. During the
robbery, the plaintiff was in the company of four other accomplices.
In
the process of the false diamond deal, the robbers on seeing the
money brought along for the deal, changed suddenly. The robbers
produced firearms and police appointment cards. The victims raised
their hands and pleaded for mercy. They were told that they
were
under arrest for dealing illegally in diamonds. The plaintiff,
although not producing a firearm, shouted that the complainants
were
under arrest. The plaintiff also took part in searching their
victims. The robbers took bank cards, and during the hostage,
some of
the robbers departed from the scene with the plaintiff to withdraw
money from the bank accounts.
[14] Gift Kangansaru testified that
during the hostage at the house in Klerksdorp, he managed
surreptitiously to contact his brother,
told him where they were held
and to contact the police. The latter arrived at the scene swiftly,
during the temporary absence
of the plaintiff and arrested some of
the robbers.
[15] Whilst at the police station on 3
August 2009, the complainant in the Hillbrow robbery case arrived and
also identified the
plaintiff as the robber who robbed him. He
stopped attending the Klerksdorp robbery case after receiving death
threats.
THE CROSS-EXAMINATION OF GIFT
KANGANSARU
[16] Gift Kangansaru was
cross-examined. There emerged nothing eventful. He was a consistent
and comfortable witness. He corroborated
W/O Mahasha in all material
respects. After tricking the plaintiff, he had to drag him into the
police station at Park station
since the plaintiff became reluctant
to enter. After the arrest of the plaintiff he was in contact with
the investigating officer
in the Klerksdorp robbery case i.e. Karren,
and became aware that the plaintiff was joined as a co-accused there.
He also told
the investigating officer that he had received death
threats if he testified. He was certain that the plaintiff was one
of the
robbers who took his money. He was unsure if W/O Mahasha
observed the witness holding the plaintiff when they entered the
police
station. Gift Kangansaru was adamant that when still at the
Park station police station, and after he phoned one of the
complainants
called TJ, the latter promptly arrived at the police
station and identified the plaintiff as one of the robbers as well.
He denied
that the plaintiff entered the police station voluntarily.
[17] Gift Kangansaru testified that
once he had given W/O Mahasha all the details of the robbery case,
W/O Mahasha telephoned the
investigating officer in Klerksdorp, and
after a discussion, W/O Mahasha confirmed that the plaintiff was
wanted in Klerksdorp.
Gift Kangansaru also personally phoned the
investigating officer, Karren, and told her that the plaintiff was at
the police station.
W/O Mahasha then arrested the plaintiff and read
his rights to him. The investigating officer, Karren, undertook to
travel to
Johannesburg and to collect the plaintiff. He made a
statement to W/O Paul at the Hillbrow police station who was
investigating
the robbery perpetrated by the plaintiff on the victim
called Aladeselu. The latter robbery took place on 31 July 2009 and
Kangansaru
knew another victim called TJ as a friend.
THE EVIDENCE OF W/O M MAHASHA
[18] W/O Mahasha testified. He
corroborated the version of Gift Kangansaru in all material respects.
The criticism levelled against
W/O Mahasha both in cross-examination
and in argument, was truly not justified in the circumstances.
Crucial in his evidence,
was his conduct, state of mind and decision
to arrest the plaintiff on 3 August 2009, and caused him to be
detained at the Hillbrow
police station. At the time of the arrest,
he was on duty at Park station police station from 06h00 to 18h00.
He had some 21
years’ service in the SAPS. The witness, Gift
Kangansaru, came into the police station with the plaintiff. Gift
Kangansaru
alleged that the plaintiff had robbed him in Klerksdorp in
July 2009. Gift Kangansaru, in proof of his allegations, produced
the
pointing out note from the Klerksdorp investigating officer,
Karren, which contained a case number, police station, nature of the
crime, and contact details of Karren. W/O Mahasha questioned Gift
Kangansaru closely in order to ascertain the veracity of the
allegations. He telephoned Karren and spoke to her to verify the
allegations. This was about 16h30. Karren confirmed the robbery
incident and the involvement of the plaintiff thereat. Arrangements
were made with Karren to come to Johannesburg and collect
the
plaintiff. Subsequent to such confirmation and verification, he
believed Gift Kangansaru, and decided to arrest the plaintiff.
He
read to the plaintiff his rights in terms of the Constitution, and
made arrangements for the plaintiff to be detained at the
Hillbrow
police station.
[19] He testified that the arrest of
the plaintiff in the circumstances, was perfectly lawful since the
plaintiff was suspected
of having committed the robbery, which is a
Schedule 1 offence. He testified that his suspicion to arrest was
based on reasonable
grounds as the investigation of armed robbery was
confirmed against the plaintiff.
[20] In cross-examination, W/O Mahasha
testified that Gift Kangansaru was calm when he related the
information to him. It was not
unusual for a complainant to arrest a
suspect. He did not know what happened between the plaintiff and Gift
Kangansaru outside
the police station. He was adamant that he read
to the plaintiff his constitutional rights, which was a procedural
matter. He
could not explain what eventually happened to the
pointing out note received from Gift Kangansaru. He had attached the
note to
his statement made in the Klerksdorp docket. He testified
that in his telephone discussion with Karren, she mentioned that Gift
Kangansaru assured her that he would be able to identify the robbers
on sight. Gift Kangansaru sounded positive about the identity
of the
plaintiff as one of the robbers since they met before for days
discussing the aborted diamond deal, which turned out to
be false. He
denied that the plaintiff was handcuffed on arrest and that he was
not the arresting officer. The SAPS 14 notice
of rights was in fact
signed by his colleague, B M Nkosi, as reflected at Bundle A p 100.
However, in his statement, which is
at Bundle A 105, Mahasha
confirmed that he read to the plaintiff his constitutional rights on
more than one occasion. In regard
to the allegations, the plaintiff
was largely uncooperative when questioned.
[21] In my view, W/O Mahasha was an
impressive and credible witness. He withstood close and incisive
cross-examination. He had
never before dealt with the plaintiff and
had no known reason to falsely implicate the plaintiff. He was
corroborated by Gift
Kangansaru.
THE EVIDENCE OF W/O S J PAUL
[22] The final witness for the
defendant was W/O S J Paul (“Paul”) who was a detective
stationed at the Hillbrow police
station. At the time of his
evidence, he had some 15 years’ service in the SAPS. He was the
investigating officer in the
Hillbrow robbery case which was opened
by Aladeselu. The plaintiff was the suspect. The plaintiff was
detained at the Hillbrow
police station from 3 August 2009. After
his first court appearance at the Johannesburg Magistrate’s
Court, the plaintiff
was transferred to the Johannesburg prison. The
trial was postponed for further investigation and in order to verify
the plaintiff’s
address. Thereafter bail was applied for but
was declined mainly since the plaintiff had previous convictions and
could not produce
his identity document. At a later stage when the
matter was to be heard in the Regional Court, the charges were
withdrawn because
the complainants were intimidated. In this regard,
he referred to the statement of Aladeselu at Bundle A 109 in which
the threats
were mentioned.
THE CROSS-EXAMINATION OF W/O PAUL
[23] In cross-examination, Paul
testified that the charges against the plaintiff relating to the
Hillbrow robbery case were withdrawn
on 2 February 2010. He
personally visited the address given by the plaintiff at Braksam
Towers, Unit 57, Bok and Wanderers Streets,
for verification.
However, the plaintiff was unknown at this address. In regard to the
Klerksdorp robbery, Paul testified that
he made contact with the
investigating officer, Karren, who confirmed that the plaintiff was
also wanted there for robbery, which
trial never proceeded for
reasons unknown to him. There was plainly nothing controversial in
the evidence of Paul. He made no
attempt at all to implicate the
plaintiff. There was no reason to doubt his evidence.
THE ISSUES FOR DETERMINATION
[24] The pertinent issues for
determination in this trial are whether the arrest of the plaintiff
on 3 August 2009, and his subsequent
detention by the police were
wrongful or unlawful. The other issue was whether the plaintiff’s
claim for damages for malicious
prosecution based on the fact that
the prosecution of the plaintiff never occurred. In this regard, the
plaintiff claimed general
damages in the sum of R1 250 000,00.
THE LEGAL PRINCIPLES APPLICABLE
[25] It was common cause that W/O
Mahasha arrested the plaintiff without a warrant. It was equally
common cause that W/O Mahasha
was a peace officer as defined in sec 1
of the Criminal Procedure Act 51 of 1977 (“the Criminal Code”).
Sec 40(1)(a)
and (b) of the Criminal Code provides that:
“(1) A peace officer may without
warrant arrest any person –
(a) who commits or attempts to commit
any offence in his presence;
(b) whom he reasonably suspects of
having committed an offence referred to in Schedule 1, other than the
offence of escaping from
lawful custody; …”
The offence of robbery under discussion
in the present matter is contained in Schedule 1 of the Criminal
Code.
[26] The onus of alleging and proving
that the arrest without a warrant was lawful was on the defendant.
In addition, sec 12(1)
of the Constitution provides that:
“(1) Everyone has the right to
freedom and security of the person, which includes the right –
(a) not to be deprived of freedom
arbitrarily or without just cause;
(b) not to be detained without trial;
(c) to be free from all forms of
violence from either public or private sources;
(d) not to be tortured in any way; and
(e) not to be treated or punished in a
cruel, inhuman or degrading way.”
In Minister of Safety and Security v
Linda
2014 (2) SACR 464
GP, at para [20] the Court said:
“Section 40(1)(b) of the Act
provides that a peace officer may without warrant arrest any person
whom he reasonably suspects
of having committed an offence referred
to in sch 1. The jurisdictional facts for a s 40(1)(b) defence are:
the arrestor must
be a peace officer; the arrestor must entertain a
suspicion; the suspicion must be that the suspect (arrestee)
committed an offence
referred to in sch 1; and the suspicion must
rest on reasonable grounds.”
See also Minister of Safety and
Security v Sekhoto
2011 (1) SACR 315
(SCA) at para [6].
[27] In the instant matter, and in my
view, the defendant in its amended plea, properly pleaded the
jurisdictional facts to the
detailed facts, and followed by the
evidence described above in full. In this regard para 5 of the
amended plea (in response to
paras 7, 8, 9, 10 and 11 of the
particulars of claim) accorded with the credible evidence led on
behalf of the defendant. For
the sake of completeness, para 5 of the
amended plea is hereby reproduced:
“5. The contents of these
paragraphs are denied as if specifically traversed and the plaintiff
is put to the proof thereof.
5.1 On 3 August 2009, whilst on duty,
the arresting officer, Mogale Mahasha, was approached by a certain Mr
Gift Kangansaru. He
pointed out the plaintiff, being a suspect in
the case of armed robbery which was committed in Klerksdorp, and that
he had been
a victim of such armed robbery committed by the
plaintiff. Mr Kangansaru then gave Mahasha a case number for such
armed robbery.
5.2 Mahasha then phoned the Klerksdorp
investigating officer, who was handling the matter as per the case
number provided to him
by the complainant, Mr Kangansaru.
5.3 The Klerksdorp investigating
officer confirmed that indeed the plaintiff was a wanted man, being a
suspect in the case of armed
robbery which was committed in the
Klerksdorp area.
5.4 Based on such information and the
fact that the complainant had a point out note which Mahasha had
verified, he then arrested
the plaintiff for a case of armed robbery,
as he was authorised to do.
5.5 Immediately after his arrest, more
complainants came up to complain that they had also been robbed by
the plaintiff on different
occasions. Subsequently, more armed
robbery dockets were opened against the plaintiff.
5.6 The plaintiff was arrested on 3
August 2009 and appeared in court early on 5 August 2009, which means
he appeared in court within
48 hours of his arrest.
5.7 Save as aforesaid, the defendant
denies that the plaintiff was unlawfully arrested and that the police
officers acted with malice.
5.8 Over and above what has already
been pleaded, the plaintiff’s arrest without a warrant was
justified in law in that:
5.8.1 the arrestor was a peace officer;
5.8.2 the arrestor entertained a
suspicion;
5.8.3 the suspicion was that the
suspect, the plaintiff, committed an offence as referred to in
Schedule 1 and the suspicion rested
on reasonable grounds.
5.9 Furthermore, the plaintiff was
arrested with an intention to bring him to justice.
5.10 After plaintiff’s first
appearance in court, he was transferred to the Johannesburg Prison
and from then onwards, the
Minister of Police had no authority over
him as his further detention was at the instance of the court.
5.11 The charges against the plaintiff
were eventually withdrawn after the complainants had refused to
testify following allegations
of intimidation.”
[28] It is also trite that the
suspicion held by the arresting officer must be assessed, not
generally, but objectively. The arresting
officer also has a
discretion whether or not to effect the arrest in the circumstances,
and even consider other less drastic measures
to ensure that the
suspect appeared in court. In Minister of Safety and Security v
Linda, supra, at para [21] the Court said:
“The question whether the
suspicion of the person effecting the arrest is reasonable must be
approached objectively. A suspicion
inherently involves an absence of
certainty or adequate proof. A police officer is not expected to
satisfy himself to the same
extent as a court. A suspicion can be
reasonable despite there being insufficient evidence for a prima
facie case. In Shabaan
Bin Hussain and Others v Chong Fook Kam and
Another the Privy Council said:
‘Suspicion in its ordinary
meaning is a state of conjecture or surmise where proof is lacking,
“I suspect but I cannot
prove”. Suspicion arises at or
near the starting point of an investigation of which the obtaining of
prima facie proof is
the end.’”
In Minister of Safety and Security v
Sekhoto, supra, at para [28] the Court said:
“Once the jurisdictional facts of
an arrest, whether in terms of any paragraph of s 40(1) or in terms
of s 43, are present,
a discretion arises. The question whether there
are any constraints on the exercise of discretionary powers is
essentially a matter
of construction of the empowering statute in a
manner that is consistent with the Constitution. In other words,
once the required
jurisdictional facts are present the discretion
whether or not to arrest arises. The officer, it should be
emphasised, is not
obliged to effect an arrest. This was made clear
by this court in relation to s 43 in Groenewald v Minister of
Justice.”
APPLYING THE LEGAL PRINCIPLES TO THE
FACTS
[29] In applying the legal principles
to the facts of the present matter, it was more than plain that in
arresting the plaintiff,
W/O Mahasha had more than a reasonable
suspicion, objectively speaking. He received sufficient information
from Gift Kangansaru
about the involvement of the plaintiff in the
robbery crime. Other complainants also later came forward
implicating the plaintiff.
W/O Mahasha applied his mind properly to
the allegations. He spoke to the plaintiff who opted to be
uncooperative. W/O Mahasha
did not immediately and over-hastingly
arrest the plaintiff. He wanted to satisfy himself that the suspicion
was based on reasonable
grounds. He had the verbal report of Gift
Kangansaru, the case number or pointing out note relating to the
robbery case in Klerksdorp.
He then telephoned the Klerksdorp
investigating officer, Karren, in order to verify the allegations and
also to satisfy himself
that the Klerksdorp investigating officer was
indeed investigating a case that involved the plaintiff. It was only
after such
confirmation that W/O Mahasha then decided to arrest the
plaintiff. This was credible and reasonable conduct as opposed to
the
plaintiff’s unimpressive version. I was more than
convinced that the requirements of sec 40(1) of the Criminal Code had
been satisfied. It followed therefore, that the arrest of the
plaintiff on 3 August 2009, even though it was without a warrant,
was
justified and lawful in the circumstances. The plaintiff’s
claim based on unlawful and wrongful arrest must fail.
PLAINTIFF’S ALLEGATIONS OF
UNLAWFUL DETENTION
[30] I turn to the alleged unlawful
detention of the plaintiff. There is in law a clear distinction
between the act of arrest and
the act of detention in custody, as was
made clear in, inter alia, Mahlongwana v Kwatinidubu Town Committee
1991 (1) SACR 669
(E). The arrest of the plaintiff was lawful on a
serious charge of armed robbery. He was detained at the Hillbrow
police station
from 3 August 2009 until he made his first appearance
in court on 5 August 2009. Whilst it seemed logical to argue that
where
the arrest was unlawful, the subsequent detention would also be
unlawful, in proper circumstances it can also be argued to the
contrary. That is that, where the arrest was lawful, as in this
case, the detention, pending first appearance in court, can also
be
said to be lawful. This will, of course, depend on the particular
circumstances of each case. (Cf Mthinkulu and Another v
Minister of
Law and Order
1993 (3) SA 432.)
[31] In the instant matter, the claim
of the plaintiff of unlawful detention in respect of his detention at
the Hillbrow police
station can in my view, be dismissed on one clear
ground only. That is that, in the light of the serious nature of the
offences
that he was arrested for, which attracted the minimum
sentencing regime in the event of conviction, there was conceivably
no way
in which the police could have, or should have, invoked their
discretion to release him pending his first appearance in court.
Sec
59(1)(a) of the Criminal Code provides that:
‘An accused who is in custody in
respect of any offence, other than an offence referred to in Part II
or Part III of Schedule
2 may, before his or her appearance in a
lower court, be released on bail in respect of such offence by any
police official of
or above the rank of non-commissioned officer, in
consultation with the police official charged with the investigation,
if the
accused deposits at the police station the sum of money
determined by such police officer.’
See in this regard, Mvu v Minister of
Safety and Security
2009 (6) SA 82
(GSJ) at 91. The charges which
the plaintiff faced are specifically mentioned in Part II Schedule 2,
i.e. robbery. The plaintiff
could also not be released under the
provisions of sec 50(3) of the Criminal Code which provides that,
‘subject to the provisions
of subsection (6), nothing in this
section shall be construed as modifying the provisions of this Act or
any other law whereby
a person under detention may be released on
bail or on warning or on a written notice to appear in court’.
[32] Once the plaintiff appeared in
court on 5 August 2009, the matter of his further detention was not
longer in the hands of the
police, but under the judicial oversight
of the trial court. In Isaacs v Minister van Wet en Orde
1996 (1)
SACR 315
(A), the appellant was initially asked to go to the police
station for questioning. After questioning, the appellant was,
however,
ordered to stay in the police station and there to wait for
the policeman who was at that time busy with further investigation
into the case. At first court appearance, the appellant was remanded
in custody. The appellant was technically under arrest. The
Court
found that a detainee’s continued detention pursuant to an
order of court in terms of sec 51 of the Criminal Code,
was lawful
despite the fact that it had followed upon the appellant’s
unlawful arrest. The facts in the latter case were
clearly
distinguishable from the facts in the present matter since the arrest
of the plaintiff here was plainly lawful. However,
each case must be
considered on its own circumstances. The end result, was however,
that the plaintiff was in detention until
the charges against him
were ultimately withdrawn, was not unlawful, as discussed below.
ALLEGATIONS OF MALICIOUS PROSECUTION
[33] Finally, I deal with the
plaintiff’s claim based on malicious prosecution. This claim
too, must fail. The onus was
on the plaintiff to allege and prove
this claim, in all of its facets. One of the elements the plaintiff
had to allege and prove
was that the defendant instituted the
criminal proceedings in question without reasonable and probable
cause, including malice.
See in this regard, inter alia, Prinsloo v
Newman 1975 (1) SA 481 (A).
[34] The credible evidence of W/O Paul
was that he investigated the matter, i.e. the Hillbrow robbery case
thoroughly and believed
that the plaintiff had a formidable case to
answer. He provided all the relevant facts to the public prosecutor.
The prosecutor
in exercising his/her discretion, based on the facts
produced, decided to prosecute the plaintiff. In this regard the
evidence
was significantly not challenged seriously in
cross-examination. It was equally significant that it was never
suggested to W/O
Paul that he misled or misrepresented the facts to
the prosecutor. It was also not the plaintiff’s case that there
was no
evidence at all on which he could be prosecuted successfully.
Furthermore, there was no evidence on record that the magistrate was
misled or that incorrect facts were placed before the magistrate with
the result that the plaintiff had to be remanded in custody
and
refused bail. On his own version, the plaintiff was denied bail
because of his previous convictions mentioned earlier in the
judgment. This was not disputed. In addition, W/O Paul testified
that the plaintiff was denied bail because he supplied to the
police
a false address. The plaintiff also was unable to provide any form of
positive identification. This evidence too, was never
contested by
the plaintiff during cross-examination. In the circumstances, the
conclusion that the further detention of the plaintiff
after being
ordered by the magistrate was lawful, became irresistible. In the
same manner, the persistence of the police officers
with the
prosecution of the plaintiff, was justifiable, and could never have
been in violation of his rights in terms of sec 12(1)
of the
Constitution.
[35] It is so that in terms of sec
35(2)(d) of the Constitution, the plaintiff, as an accused person,
had the right ‘to challenge
the lawfulness of the detention in
person before a court and, if the detention is unlawful, to be
released’. The magistrate,
on the basis of the information
before court, decided otherwise, apparently because the interests of
justice did not permit his
release. There was no evidence that the
plaintiff applied for bail later on new facts or appealed the
decision of the magistrate
in refusing bail. The fact remained that
the charges against the plaintiff both in the Hillbrow and the
Klerksdorp robbery cases,
were withdrawn because the complainants
were intimidated and threatened with death.
CONCLUSION
[36] I therefore concluded that the
plaintiff had failed miserably, to make out a case for any of the
heads of damages he claimed
in this action. The action must be
dismissed.
COSTS
[37] I deal with the issue of costs
briefly. It is a matter of discretion, and ought normally to follow
the result. The plaintiff
was an elderly man of about 67 years of
age. He earned his livelihood from hawking in the streets of
Hillbrow or Yeoville. He
looked pathetic in the witness stand. He
was plainly opportunistic in his claims. He became emotional when he
testified about
his release from detention. This was clearly in an
endeavour to mislead the court. He was a skilful trickster involved
in illegal
diamonds and gold. There was no hope that he would be
able to meet an adverse costs order, although he was represented by
eminent
counsel and private attorneys in this trial. It would be
unjust and inequitable to order him to pay the costs. He suffered
purely
because of his opportunism. He faced the might of the state
and its resources in defending his claims.
ORDER
[38] In the result the following order
is made:
1.The plaintiff’s action is
dismissed.
2.Each party shall pay their own costs.
D S S MOSHIDI
JUDGE OF THE HIGH COURT OF SOUTH
AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
COUNSEL FOR THE PLAINTIFF C
GORGIADES
INSTRUCTED BY BARRY KIRKMAN
ATTORNEYS
COUNSEL FOR THE DEFENDANT B
SHABALALA
INSTRUCTED BY STATE ATTORNEY
DATE OF HEARING 17 NOVEMBER 2014
DATE OF JUDGMENT 27 MARCH 2015