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[2015] ZAGPJHC 222
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Lepota v Minister of Police (29067/2013) [2015] ZAGPJHC 222 (2 October 2015)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
CASE NO: 29067/2013
DATE: 02 OCTOBER 2015
In the matter between:
THEMBA
LEPOTA
.....................................................................................................................
Plaintiff
And
MINISTER OF
POLICE
.........................................................................................................
Defendant
J U D
G M E N T
KEIGHTLEY, AJ
:
INTRODUCTION
[1] The plaintiff in this matter, Themba Lepota (“Mr Lepota”)
sues the defendant, the Minister of Police (“the
Minister”),
for Mr Lepota’s alleged wrongful arrest and detention. He
claims damages in the amount of R200 000.
00 for the wrongful arrest,
and a further R200 000.00 for the detention.
[2] It is common cause that Mr Lepota was arrested on charges of
housebreaking and theft by Detective Warrant Officer Moeketsi
(“Mr
Moeketsi”) on 10 September 2010. His first appearance in
court was on 13 September 2013. Mr Lepota
was not released on
his first appearance, and remained in custody until 1 November 2010
after he was granted bail by the court.
[3] Mr Lepota was ultimately acquitted on the charges against him on
22 January 2013.
[4] As Mr Lepota’s arrest was without a warrant, the Minister
relies on section 40(1)(b) of the Criminal Procedure Act 51
of 1977
to establish the lawfulness of the arrest. This provision
provides that:
“
a peace officer may without warrant arrest any person whom
he reasonably suspects of having committed an offence referred to in
Schedule 1
”
[5] The jurisdictional requirements for a lawful arrest under section
40(1)(b) are very well established in our law, and do not
require
extensive discussion:
[5.1] the arresting officer must be a peace officer;
[5.2] he or she must entertain a suspicion;
[5.3] the suspicion must be that the arrestee has committed a
schedule one offence; and
[5.4] the suspicion must rest on reasonable grounds.
[1]
[6] “Suspicion” implies an absence of certainty or
adequate proof. A reasonable suspicion does not require that
there is sufficient evidence to establish a
prima facie
case
against the arrestee.
[2]
[7] Whether a reasonable suspicion exists or not is determined on an
objective basis.
[3]
The pertinent question is whether the circumstances giving rise to
the suspicion are such that they would ordinarily cause
a reasonable
person to form the suspicion that the arrestee has committed the
offence in question.
[4]
The lawfulness of the arrest is not affected by the withdrawal of
charges, or acquittal of the arrestee on the relevant charges,
as
this decision lies with the court or prosecutor, and not the
arresting officer.
[5]
[8] If the jurisdictional facts are present, a discretion arises on
the part of the arresting officer as to whether to effect an
arrest
or whether to use an alternative method of ensuring the suspect’s
attendance at court. The discretion must be
exercised in good
faith, rationally and not arbitrarily. This requires that it
must be exercised with the objective of bringing
the suspect before
court.
[6]
[9] Arresting officers are entitled to exercise their discretion as
they see fit, provided they stay within these bounds.
Whether
or not the discretion was properly exercised should not be judged on
the standard of what was best in hindsight.
As the SCA noted in
Sekhoto
:
“
The standard is not perfection or even the optimum, judged
from the vantage of hindsight – so long as the discretion is
exercised
within this range, the standard is not breached.
”
[7]
[10] The arresting officer bears the
onus
of establishing the
jurisdictional facts. If this is established, the arrest will
be lawful, unless the plaintiff is able
to establish that the
arresting officer exercised the discretion to arrest in a manner that
was unlawful.
[11] In the present case there is no dispute that Mr Moeketsi was a
peace officer, or that he harboured a suspicion that Mr Lepota
was
guilty of the offences in question, or that those offences were
Schedule 1 offences. The only jurisdictional fact that
is
placed in dispute is whether or not Mr Moeketsi’s suspicion was
reasonable.
[12] If I find for the Minister in this regard, Mr Lepota pleads, in
addition, that the arrest and detention nonetheless are unlawful
in
that Mr Moeketsi exercised his discretion improperly.
THE FACTS
[13] On the evening 4 September 2010, a Saturday, the home of the
criminal complainant, Nomsa Ndlela (“Ms Ndlela”),
in
Orlando East, Soweto, was broken into and various items were stolen.
These included a TV, four wristwatches, two cell
phones, and four
pairs of “designer” sports shoes, or takkies, as they
were referred to in evidence. The room
from which the items
were stolen was ransacked, and the TV stand was broken.
[14] Ms Ndlela was not home at the time. She was attending a
funeral. Her daughter, Nomvulo, contacted her by phone
earlier
in the evening to report the incident to Ms Ndlela.
[15] In the statement made by Nomvulo to the police at the Orlando
police station the following day, she indicated that two men
in
balaclavas had come into the house after knocking on the front door.
They forced her into the bedroom. Thereafter,
they started
ransacking the room and taking items. One of the men tried to
undress her, and tore the buttons off her pyjamas.
The other
man remonstrated with him, and he stopped. Thereafter, the men
locked her in the house, and left with the stolen
items.
[16] Although Nomvuzo did not give evidence at the trial, it is not
in dispute that Mr Lepota’s arrest was sparked by a
housebreaking incident at Ms Ndela’s home on the night in
question. It is also not in dispute that the police action
that
followed stemmed from the criminal complaint laid by Ns Ndela, which
was supported by Nomuvuso’s statement, and one
by Ms Ndela
herself.
[17] In Ms Ndele’s statement that she made to the police when
she laid her criminal complaint on Sunday, 5 September 2010,
she
stated that a man who stays in the house next door to hers told her
that he had seen the suspects. On the basis of this
information, Ms Ndela said in her statement that she had proceeded to
“Themba and Machudu”, in the same street as hers.
They had agreed that they had stolen the items in question, and they
had given her back her cell phones.
[18] It is common cause that the person called Themba is the
plaintiff, Mr Lepota, and that “Machudu” is the person
who was his co-accused in the criminal case. The correct
spelling of his name is “Mashudu”.
[19] Ms Ndela knows both Mr Lepota and Mashudu. They come from
the same neighbourhood.
[20] After the complaint was laid, the arresting officer, Mr
Moeketsi, was given the responsibility of investigating the matter.
The exact date when this occurred is not know, but it was between the
lodging of the complaint and the opening of the police docket
on 5
September, and the arrest of Mr Lepota on 10 September 2010.
[21] It is not in dispute that both of Ms Ndlela’s initial
statement and Nomvulo’s statement were in the docket when
it
was handed to Mr Moeketsi.
[22] The fact that Mr Lepota was arrested on 10 September 2010 is not
in dispute. However, the details of, and the background to
the arrest
form the core of the dispute between the parties. I will revert
to this in due course.
[23] It is common cause that the initial charge identified in the
police docket was one of housebreaking and theft, and that this
was
subsequently amended by the public prosecutor to charges of robbery
and attempted rape.
[24] As I have already indicated, Mr Lepota appeared in court for the
first time on 13 September 2010, and was remanded in custody.
More than two years later, in January 2013, Mr Lepota was acquitted
on the charges against him. Ms Ndela testified at the
hearing
before me that she had attended every one of the court dates, and
that she was never called as a witness in the criminal
trial.
She said that when she asked the prosecutor why he had not called
her, he told her that he had forgotten about her.
This was not
challenged under cross-examination.
[25] These are the non-contentious, bare bones facts of the case.
I deal with the more detailed facts forming the heart of
the dispute
below.
WAS THERE A REASONABLE SUSPICION?
[26] As I have already indicated, the first issue in dispute is
whether Mr Moeketsi’s suspicion that Mr Lepota was involved
in
the crime was reasonable. The Minister bears the
onus
of
establishing this.
[27] Over the approximately three days of the trial I heard the
evidence of five witnesses. Mr Moeketsi and Ms Lepota for
the
Minister, followed by Mr Lepota, a Mr Myoli and Mr Lepota’s
grandmother, Sana Lepota, (“the grandmother”),
for Mr
Lepota.
[28] For purposes of reaching a decision in this matter it is not
necessary for me to summarise the evidence of each witness. Indeed,
a substantial amount of evidence was on tangential issues, and was
not really of much assistance to me. Mr Myoli’s evidence
by and
large fell into this category, and I will make very little reference
to it.
[29] As will become apparent later, most of the evidence that I will
refer to in detail concerns the circumstances in which Mr
Lepota’s
arrest took place.
[30] At the time of the incident, Mr Lepota lived with his
grandmother. It is common cause that the police tried to trace
both suspects during the week after 5 September 2010. They
looked for Mr Lepota at his grandmother’s house on at least
one
occasion, this being the night of Thursday 9
th
September
2010, in connection with Ms Ndela’s complaint. He was not
at home. The police told the grandmother
that they were looking
for Mr Lepota, and that he should report to Mr Moeketsi at the police
statin when he returned home.
[31] It is common cause that the arrest occurred the following day,
when Mr Lepota, accompanied by his grandmother, arrived at
the police
station, and met Mr Moeketsi. The crux of the case turns on
what occurred between Mr Moeketsi and Mr Lepota at
the time of his
arrest. Not surprisingly, Mr Moeketsi and Mr Lepota give
conflicting versions of what transpired.
[32] On Mr Moeketsi’s version, he had read the statements by Ms
Ndala and Nomvuzo when the docket was given to him.
He had also
interviewed both of these witnesses and checked their versions
against the statements. Ms Ndela had identified
Mr Lepota as
one of the suspects, together with Mashudu. Ms Ndela had
repeatedly said that she had tried to arrange with
Mr Lepota and
Mashudu for the return of her missing items. They had promised
to do so or to pay her back, and had asked her
not to open a criminal
case.
[33] According to Mr Moeketsi’s testimony, on 10 September
2010, when he met Mr Lepota and his grandmother at the police
station, Mr Lepota said that he had come to hand himself in. He
(Mr Lepota) told Mr Moeketsi that he was prepared to hand
himself
over, in order to get the matter settled. Mr Moeketsi
understood this to mean that Mr Lepota wanted to settle the
matter
with the complainant.
[34] In his view, it was not the police’s job to try to settle
matters between suspects and complainants. The duty
of the
police was to arrest a person reasonably suspected of a crime, and to
take the matter to court.
[35] Mr Moeketsi testified that he was satisfied that there was a
“solid” case against Mr Lepota, and that his suspicion
of
Mr Lepota’s involvement in the crime was reasonable. He
accordingly proceeded to arrest Mr Lepota. He informed
him of
his rights and he asked him to remove his shoelaces, and belt and to
give these to his grandmother. Thereafter, Mr
Lepota was
detained at the police station.
[36] On the following day, Mr Moeketsi proceeded to complete what is
commonly known as the “warning statement” form
with Mr
Lepota. In the section indicating that the suspect has been
informed, among other things, of the reason for his arrest
and his
right to remain silent, the word “Yes” has been inserted
in Mr Moeketsi’s handwriting, and Mr Lepota’s
signature
appears thereunder. It is also recorded in the document that
the suspect has elected “to remain silent”.
Again
Mr Lepota’s signature appears thereunder. Mr Moeketsi
confirmed in his testimony that the form accorded with
the facts,
i.e. Mr Lepota did not wish to make a statement to the police when he
was arrested, and had exercised his right to silence.
[37] He testified further that the following day, the 12 September
2010, the same process was followed with the other suspect,
Mashudu,
who had since also been arrested. However, unlike Mr Lepota, Mr
Mashudu elected to make a written statement.
Mr Moeketsi
testified that the normal procedure in those circumstances is that
the investigating officer does not complete the
warning statement.
Instead, the investigating officer refers the suspect to a senior
officer, who takes the statement down.
This is because the
suspect may make self-incriminating statements. These must be
properly recorded by an officer with a
high enough rank.
In Mshudu’s case, a captain completed the warning statement
form and took Mashudu’s statement.
In Mashudu’s
statement, he says that it was Mr Lepota who gave the stolen cell
phones to him.
[38] Mr Lepota’s version paints a very different picture
altogether of what occurred when he was arrested.
[39] According to his testimony, he did not know why the police were
looking for him. He was at his mother’s house
on the
Thursday night. His grandmother phoned him on Friday to say
that the police had come to the house looking for him.
The
police had left a message that he was to go to the police station
when he came home.
[40] On Friday, 10 September 2010, he and his grandmother went to the
police station and asked to see Mr Moeketsi. They waited
for
him for about 45 minutes. When Mr Moeketsi arrived, the
grandmother said: “Here is the person you are looking for.”
When he went into Mr Moeketsi’s office, Mr Lepota repeated that
he was the Themba that they were looking for.
[41] At this point, according to Mr Lepota’s evidence, Mr
Moeketsi instructed him to remove his shoelaces and belt and all
items from his pocket and to give these to his grandmother. Mr
Lepota asked Mr Moeketsi why he must do so, and Mr Moeketsi
responded
by telling him that he was under arrest.
[42] Mr Lepota’s version is that when he asked Mr Moeketsi why
he was being arrested, Mr Moeketsi told him that he was not
to say
anything; he was not to talk to Mr Moeketsi. Despite Mr Lepota
trying to tell Mr Moeketsi that he did not understand
why he was
being arrested, Mr Moeketsi would not let him speak.
[43] He says that he also tried to explain to Mr Moeketsi what had
transpired at Mashudu’s house at the meeting on Sunday
5 March.
He said he had tried to tell Mr Moeketsi that he had told Ms
Ndela that he knew nothing about stolen watches.
However,
according to Mr Lepota, Mr Moeketsi would not allow him to tell him
anything. Instead, he said to Mr Lepota: “I
already know
everything about you. I am well informed.”
[44] It was Mr Lepota’s further evidence that Mr Moeketsi did
not tell him the reason for his arrest, nor did he advise him
of his
rights. He said he did not elect to exercise his right to
remain silent. Mr Moeketsi did not ask him if he wanted
to make
a statement or not. If he had been asked, Mr Lepota said that he
would have elected to make a statement.
[45] Mr Lepota explained his signature on the warning statement form
by telling the court that he had simply signed his name where
Mr
Moeketsi indicated he should, where the paper was marked with an
“X”. He said that the answers above his signature
had not been filled in when he was told to sign the document.
[46] When Mr Lepota’s version was put to Mr Moeketsi under
cross-examination, he denied it. Similarly, when Mr Lepota’s
version was put to Mr Moeketsi under cross-examination, he also
denied it.
[47] Accordingly, on Mr Moeketsi’s version, he formed a
suspicion of Mr Lepota’s involvement in the crime, this was
a
reasonable suspicion, based on what he knew about the case from the
police docket, and from interviewing Ms Ndela and Nomvuzo.
When
Mr Lepota presented himself at the police station, with a view to
handing himself in so that the matter could be settled between
Mr
Lepota and the complainant, Mr Moeketsi acted in accordance with his
duties and obligations as a police officer and arrested
him.
[48] The contrary version of Mr Lepota is that Mr Moeketsi was
determined to arrest him and to keep him in the dark about why he
was
being arrested and what his rights were. He actively prevented
Mr Lepota from trying to tell Mr Moeketsi anything that
was
exculpatory. In addition, on Mr Lepota’s account, Mr
Moeketsi essentially falsified the warning statement document
by
obtaining Mr Lepota’s signature on it by devious means.
[49] Which of these versions is the more probable? Clearly, if
Mr Lepota’s version prevails, it would be difficult
to conclude
that Ms Moekesti’s suspicion was a reasonable one. This
is because on Mr Lepota’s evidence, Mr Moeketsi
actively went
out of his way to close his mind to any information pointing away
from Mr Lepota’s involvement in the crime.
An arrest in
such circumstances would not be lawful.
[50] However, when considered as a whole, the evidence weighs in
favour of Mr Moeketsi’s version of what happened when he
arrested Mr Lepota. There are a number of indicators that
support this.
[51] It is common cause that on the Sunday following the break-in a
meeting took place at Mashudu’s house to discuss what
had
occurred. Mr Lepota and Mashudu were at the
meeting, as were Ms Ndela, her father, Mashudu’s uncle,
and Mr
Lepota’s grandmother.
[52] Mr Lepota testified in his evidence in chief about this meeting
and confirmed that his grandmother was present. He said
that
his grandmother, together with Mashudu’s uncle, had come to
fetch him to attend the meeting. He also said that
the stolen
watches, and his and Mashudu’s involvement in their theft, was
discussed. Ms Ndela told him that he should
give the watches
back, or pay for them, or she would go to the police.
[53] This is consistent with Ms Ndela’s evidence about what
occurred at the meeting, and it is consistent with Ms Ndela
identifying Mr Lepota and Mashudu as the suspects in her first
statement to the police. It is also consistent with Ms Nedela’s
evidence at the trial when she testified that when the suspects did
not return the watches after 2 hours, she went to the police
station
and laid a complaint.
[54] In my view, what may be inferred from this common evidence is
that on the day following the incident there was an attempt
by Ms
Ndela and her family (her father), together with the two suspects and
their families (Mashudu’s uncle and Mr Lepoto’s
grandmother) to deal with the situation without going to the police.
Ms Ndele wanted the remainder of her property (the watches)
returned
by the suspects or to be reimbursed by them. Everyone involved was
from the same neighbourhood. The course they
adopted seems to
me to have been a perfectly reasonable in the circumstances. It
was only when Mr Lepota and Mashudu failed
to return the watches to
her, she followed through with her threat to go to the police.
[55] Against this background, Mr Moeketsi’s evidence about what
Mr Lepota said when he met with Mr Moekesti at the police
station on
10 September has a considerable ring of truth. Mr Moeketsi
testified that Mr Lepota said that he come to the police
station to
hand himself in so that the matter could be settled with the
complainant. This is consistent with the families
previously
having met to try to settle the matter. The difference now was
that the police were involved. It is not
unreasonable to infer
that what Mr Lepota and his grandmother hoped they could do was to
persuade the police that the matter was
still capable of settling
without criminal steps being taken.
[56] Mr Lepota’s version, on the other hand was that when he
reported to the police station on 10 September in response to
the
message the police had left with his grandmother on the night before,
he did not know that he was a suspect in the theft case.
He had
in mind that the police may have wanted to see him in connection with
the theft. However, he said that because he
had nothing to do
with the theft, he thought that the police were simply going to ask
him for his help in trying to identify the
suspect. Mr Lepota
also testified that when Mr Moeketsi placed him under arrest he was
unaware of the reason.
[57] In Mr Lepota’s grandmother’s testimony she also
pleaded ignorance of what was behind the arrest. She testified
that when her grandson was arrested she did not know it had anything
to do with items stolen from Ms Ndela. In her evidence
she said
that first time that she heard about Mr Lepota’s involvement in
a theft was when he appeared in court on 13 September
and she heard
them saying there that Mr Lepoto had stolen some watches. She
testified in her evidence in chief that before
this, she did not even
know that Ms Ndela’s watches had been stolen.
[58] Both Mr Lepota’s and his grandmother’s versions in
this regard do not stand up to scrutiny. On his own evidence,
Mr Lepota knew that Ms Ndela had accused him of stealing items from
her home, and she had demanded that he return the watches.
Although he testified that he had denied his involvement in the theft
at the Sunday meeting, the fact is that he knew that Ms Ndela
had
identified him as a suspect and that she intended reporting the
matter to the police if her watches were not returned.
In these
circumstances, his version of why he thought he was wanted at the
police station, and that he did not know he was a suspect,
is
improbable.
[59] As far as the grandmother is concerned, on the common cause
evidence, she was at the Sunday meeting. She must have known,
at the
very least, that her grandson was suspected of stealing the watches
and that Ms Ndela was threatening police action.
[60] In these circumstances, I cannot accept that Mr Lepota and his
grandmother were being truthful when they testified that they
did not
know that Mr Moeketsi wanted to see Mr Lepota as a suspect in the
housebreaking and theft incident.
[61] I conclude that the more probable version of what transpired at
the police station on 10 September when Mr Lepota was arrested
is the
version given by Mr Moeketsi. I find on the probabilities that
Mr Lepota and his grandmother knew that Mr Lepota was
a suspect in
the crime. They came to the police station to speak to the
investigating officer in the hopes of trying to broker
a settlement
with the complainant, Ms Ndela, and to avoid formal action being
taken against Mr Lepota by the police. They
knew very well why
Mr Lepota was there, and they were not taken by surprise when Mr
Moeketsi proceeded to arrest Mr Lepota.
[62] I accept the truth of Mr Moeketsi’s evidence that he took
the view that it was not the police’s function to get
involved
in trying to settle matters between complainants and suspects.
He pointed out to the court that the crimes in question
were serious
ones. A home had been invaded in the presence of a resident,
and items of substantial value had been stolen.
Mr Moeketsi
cannot be faulted for adopting the approach that in those
circumstances his duty was to arrest the person suspected
to be
involved in the crime.
[63] What of Mr Lepota’s version that Mr Moeketsi refused to
permit him to say anything that may have provided exculpatory
evidence, and that he did not give Mr Lepota the opportunity to make
a warning statement? If this version is correct, it
means that
Mr Moeketsi falsified the warning statement document by making Mr
Lepota sign a statement in blank, and filled in the
answers
afterwards.
[64] Again, this version does not stand up to scrutiny. Mr
Moeketsi is a police officer with more than 20 years experience.
From his testimony it was clear to me that he is fully acquainted
with the process of arresting suspects, and how they are dealt
with
until their first appearance at court. Mr Moeketsi had Ms
Ndela’s statement identifying Mr Lepota as a suspect,
and he
had interviewed Ms Ndela before Mr Lepota’s arrest to verify
her version. Mr Lepota and his grandmother had
arrived at the
police station in response to message that Mr Lepota should report to
the police. There is no reason why,
in these circumstances, Mr
Moeketsi would have felt the need deliberately to flout police
procedure, and his own constitutional
obligations as a police officer
by falsifying the warning statement as Mr Lepota claims.
[65] Most tellingly, the warning statement form of the other suspect,
Mashudu, recorded that he wished to make a statement, and
a statement
was attached to it. As I have already noted, Mr Moeketsi
explained that Mashudu’s warning statement form
and the
statement itself were completed by a captain rather than by Mr
Moeketsi. This is the normal procedure where a suspect
elects
to make a statement. There is no explicable reason why, as the
investigating officer, Mr Moeketsi would have actively
obstructed one
of the suspects from making a warning statement, while not doing the
same in respect of the other.
[66] Mr Lepota relied on Mr Miyeni to support his claim that Mr
Moeketsi actively prevented the recording of any exculpatory
statements.
Mr Miyeni assisted in the recovery of the TV set on
the night of the housebreaking. On Sunday 12 September 2010 he
made a written “recovery statement” under oath to the
police. Mr Moeketsi took the statement. The statement
is
brief. It explains how Mr Myoli came to know about the incident
on the night in question, how he went to Ms Ndela’s
house, how
the TV set was found behind the room of the next door neighbour, and
how he and Ms Ndela’s son took the TV set
to Mr Myoli’s
house, presumably for safe keeping. The statement does not
mention Mr Lepota. It is clearly aimed
at establishing the
facts regarding where the TV set was found, and how it came to be in
Mr Myoli’s house.
[67] Mr Myoli claimed in his evidence that at the time that he made
the statement, he had tried to tell Mr Moeketsi why Mr Lepota
could
not have been involved in the housebreaking, but that Mr Moeketsi
would not listen to him, and would not include any of what
he was
trying to tell him in his statement. The statement was taken
after Mr Lepota was arrested. Consequently, whatever
Mr Myoli
told Mr Moeketsi, it could not have affected the reasonableness of
the latter’s suspicion regarding Mr Lepota’s
involvement
in the crime. The suspicion had already been formed and acted
upon. For this reason, too, it is difficult
to understand why
Mr Moeketsi would have needed to deliberately suppress exculpatory
evidence at this stage.
[68] Mr Moeketsi in any event denied in his testimony that he had
prevented Mr Myoli from giving him exculpatory information.
He
testified that Mr Myoli had not mentioned Mr Lepota when he made his
recovery statement. This is consistent with what
is contained
in the statement. As I have already indicated, the statement
was made under oath, and Mr Myoli confirmed that
he had read it
through before he signed it.
[69] On the probabilities, I accept Mr Moeketsi’s version.
It is common cause that Mr Lepota and Mr Myoli are good
friends.
It is easy to see how Mr Myoli might have been willing to embellish
his version of what transpired when the recovery
statement was taken
to bolster his friend’s claim against the Minister.
[70] For these reasons, I reject Mr Lepota’s version that Mr
Moeketsi closed his mind to any exculpatory evidence in the
process
of carrying out the arrest.
[71] Mr Lepota’s counsel submitted that the suspicion formed by
Mr Moeketsi was not reasonable. She submitted that
Mr Moeketsi
should have analysed Ms Ndela’s statement more thoroughly, and
should have interviewed more of the people who
had attended the
Sunday meeting to determine whether Mr Lepota had indeed promised to
return the stolen items to Ms Ndela.
[72] This submission is without merit on the facts of this case.
At the time of the arrest Mr Moeketsi knew that Ms Ndela
had
identified Mr Lepota and Mashudu as suspects. He knew that on
Ms Ndela’s version, both suspects had accepted their
involvement and, in the presence of their family members, had
undertaken to return the stolen watches. Mr Moeketsi knew that
they had not done so. He also knew that the police had not been
able to trace the suspect over the past week, even though
they
resided in the area. This would certainly raise suspicion in
the mind of the reasonable person that the two suspects
were involved
in the crime.
[73] Furthermore, when Mr Lepota reported to Mr Moeketsi, he (Mr
Lepota) indicated that he was there to hand himself in in order
to
settle the matter with the complainant. For any reasonable
person this would have confirmed the suspicion that Mr Lepota
was
involved in the theft.
[74] Therefore, I conclude that Mr Lepota’s arrest was based on
a reasonable suspicion on the part of Mr Moeketsi that Mr
Lepota had
committed the crime.
[75] It follows that the arrest was lawful.
WAS THE DISCRETION EXERCISED PROPERLY?
[76] The second question is whether Mr Moeketsi exercised the
discretion to arrest Mr Lepota
bona fide
, rationally and not
arbitrarily.
[77] In his evidence, Mr Moeketsi said that in terms of the
applicable guidelines that apply to the police, the nature of the
crime was such that an arrest was required, and that the suspect
could only be released on bail set by a prosecutor or the court
when
the suspect appeared in court. He pointed out that the value of
the stolen property involved was high. Furthermore,
as women,
the complainant and her daughter were vulnerable to possible danger
if the suspects were summonsed or released on warning
to appear in
court, rather than being arrested.
[78] The
onus
of establishing that Mr Moeketse exercised his
discretion unlawfully rests on Mr Lepota. Counsel for Mr Lepota
submitted
that Mr Moeketsi did not act
bona fide
by preventing
Mr Lepota from providing an exculpatory statement to the police.
I have already rejected Mr Lepota’s
evidence in this regard.
It follows that there is no evidence of any
mala fides
conduct on the part of Mr Moeketsi.
[79] Furthermore, the purpose of Mr Lepota’s arrest clearly was
to bring him before court at the earliest opportunity.
He was
arrested on Friday, 10 September 2010. He made his first court
appearance within the requisite 48 hours, on Monday
13 September
2010. The docket was handed to the prosecutor who then dealt
with the matter in accordance with normal procedures.
Mr
Moeketsi’s decision to arrest Mr Lepota was quite evidently
rationally connected to the purpose of arrest, viz. to bring
the
suspect before court.
[80] From the reasons that Mr Moeketsi gave for his decision to
arrest Mr Lepota and to detain him until his first court appearance
I
am satisfied that this decision was based on good grounds, and was
not arbitrary in any way.
[81] I conclude that Mr Lepota has failed to establish that the
exercise by Mr Moeketsi of his discretion to arrest him was improper
and unlawful.
CONCLUSION
[82] It follows that I find in favour of the Minister on both issues
before me.
[83] I make the following order:
1. The plaintiff’s claim is dismissed with costs.
R KEIGHTLEY
ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
Date Heard: 25-27 August
2015
Date of Judgment: 2
October 2015
Counsel for the Plaintiff: Adv L C
Abrahams
Instructed by: Khumalo T Attorneys
Counsel for the Defendant: Adv FF
Opperman
Instructed by: The State Attorney,
Johannesburg
[1]
Duncan v Minister of Law and Order
1986 (2) SA 805
(A) at
818G-H and
Minister of Safety and Security v Sekhoto &
Another
2011 (1) SACR 315
(SCA) at [6] & [28]
[2]
Duncan
, above, 465-6
[3]
Minister of Safety and Security v Swart
2012 (2) SACR 226
(SCA) at [20]
[4]
R v Van Heerden
1958 (3) SA 150
(T) 152
[5]
Victor v Minister of Police
[2014]
ZAGPPHC 920, at [150]
[6]
Sekhoto
, above, [30]
[7]
Sekhoto
, above, [38]