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[2015] ZAGPJHC 323
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Ngwenya v Minister of Police (SS24398/2013) [2015] ZAGPJHC 323 (23 November 2015)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED:
YES
Case No: SS
24398/2013
Date: 23/11/2015
In
the matter between
LOUIS
NGWENYA
PLAINTIFF
And
THE
MINISTER OF POLICE
DEFENDANT
JUDGMENT
DELIVERED ON 23 NOVEMBER 2015
MAHALELO
AJ:
1.
The
plaintiff instituted an action for damages against the defendant for
unlawful arrest, unlawful detention and malicious prosecution
after
he was arrested without a warrant and detained by members of the
South African Police Services (SAPS) on a charge of possession
of
illicit cigarettes.
2.
It is
alleged by the plaintiff that members of the SAPS were acting within
the cause and scope of their employment as servants of
the defendant
in arresting and detaining him and as a consequence setting in motion
his malicious prosecution.
3.
The
defendant denies that the arrest and detention were unlawful and
states that the plaintiff was lawfully arrested and charged,
that the
charge was withdrawn by the state prosecutor on a technicality.
4.
It is
trite that the onus rests on the defendant to justify an arrest. As
Rabie CJ explained in
Minister
of Law and order v Hurley 1986(3) SA 568 (A) at 589 E-F
“
An
arrest constitutes an interference with the individual concerned, and
it therefore seems fair and just to require that the person
who
arrested or caused the arrest to another person should bear the onus
of proving that his action was justified in law,
”
The plaintiff bears
the onus in respect of the claim for malicious prosecution, by
agreement they testified first.
5.
The
following facts are common cause between the parties:
5.1
. the
plaintiff was arrested on 5 May 2012 after a room in which he was
found was searched by the police and 31 cartons or
more of
illicit cigarettes were found.
5.2
. the
packets of illicit cigarettes were found on a bed covered with
a blanket , others were found hidden behind the couch
on which the
plaintiff was found seated.
5.3
.
the plaintiff was detained at Honeydew Police Station under CAS
number 242/05/2012 and was later transferred to Randburg Police
station where he was charged with possession of illicit cigarettes,
and
5.4
.
He appeared in the Magistrate’s court Randburg on 7 May 2012.
The case was postponed several times , subsequently the State
Prosecutor withdrew the charge on 26 May 2012.
6.
Two
witnesses testified in support of the plaintiff’s case while
the defendant led the evidence of the arresting officer.
The evidence
in this matter can be summarised as follows:
The
plaintiff testified that he resides at [...] G. S., Extension [...]
Diepsloot. The circumstances leading to his arrest at [...]
S. L. S.,
Cosmo City on 5 May 2012 are the following: he had visited an
acquaintance Ollie Ncube (Ncube). Ncube had briefly gone
out of his
residence just before the police arrived. While alone in Ncube’s
room a police officer entered, he asked him to
stand up. The police
officer searched the room and found packets of alleged illicit
cigarettes on the bed covered with a blanket.
Other packets were
found behind the couch he previously sat on. The police officer
informed him that he was under arrest for possession
of alleged
illicit cigarettes. He informed the police officer that he was not
the owner of the room and that he had visited Ncube.
The police made
him to carry the alleged illicit cigarettes contained in two plastic
bags out of the room. He was taken to the
police car.
7.
While
in the police car Ncube arrived. He pointed him out and informed the
police that he was the owner of the room. The police
apprehended
Ncube and placed him in a different police car. The plaintiff was
taken to Honeydew police station where he enquired
about Ncube. He
was informed that Ncube alleged that the illicit cigarettes belonged
to him (plaintiff). He was transferred to
Randburg police station. He
was charged with the possession of illicit cigarettes and he appeared
in the Randburg Magistrate’s
court on Monday the 7
th
May 2012. He was detained in the cells and given blankets of a poor
quality, the toilet in the cell was not in a good working condition.
He was also detained at Johannesburg prison where there were not
enough beds to sleep on. The case was postponed several times
until
the charge was withdrawn against him by the state prosecutor on 26
th
June
2012.
8.
Under
cross examination he testified that he is a Zimbabwean citizen, that
at the time of his arrest he did not possess a valid
passport. He
applied for asylum seekers permit in 2010 and was waiting to be
issued with same. When he was arrested he was in possession
of a
receipt which showed that he had applied for a permit. He disputed
that he was arrested at his residence at [...] G. S. Diepsloot
. He
testified that he furnished the address to the police officer who
arrested him.
9.
Nokonzima
Mbusha testified that she is the owner of house number [...] S. L. S.
Cosmo City at which Ncube rented a room. On the
5
th
May 2012 three police officers arrived at her house at approximately
19H00. A white police officer entered the room and came out
with the
plaintiff. The police officers she remained with in the kitchen
informed her that the plaintiff had been arrested. She
then called
Ncube to come and solve the problem. When he arrived the police
apprehended him as well and left with him. Ncube returned
to the
house at around 22H00. When she questioned him about the whereabouts
of the plaintiff, he responded that he did not see
him. She disputed
that the plaintiff was arrested at his residence at [...] G. S.
Diepsloot.
10.
Cornellius
Christopher Kuilder, the arresting officer testified that, he is a
Sergeant in the SAPS under the Vaal Rand Flying Squad
Unit. On the
5
th
May 2012 they were busy with cluster operations gathering information
relating to crimes committed and the tracing of and arresting
of
suspects. He was following up on information he had received
regarding the sale and distribution of illicit cigarettes at number
[...] G. S.. He was in the company of one crew member constable
Ntsoe. The address [...] G. S. was pointed out to them by an
informer.
11.
Upon
arrival at [...] G. S. they knocked and someone responded. The
property is a two roomed RDP house. In the first room there
was a TV
and the second room was a bedroom. He entered the bedroom and found
the plaintiff. He explained the purpose of him being
there and asked
permission to search the room. In the presence of the plaintiff he
found cartons of cigarettes on the bed covered
with a blanket. Others
were found behind the couch. Upon inspecting them he discovered that
they did not bear the SABS and RIP
marks. He informed the plaintiff
that the cigarettes were illegal and therefore he was placing him
under arrest. He requested his
ID document. The plaintiff did not
have one. The plaintiff offered an explanation regarding same and the
presence of illicit cigarettes.
He found the explanation
unreasonable. He explained to the plaintiff his Constitutional rights
and thereafter arrested him and
took him to Honeydew police station
where he opened the case against him. He booked the illicit
cigarettes in the SAP 13 Register.
He made a statement and thereafter
detained him.
12.
Sergeant
Kuilder testified further that the plaintiff was found and arrested
at [...] G. S.. The plaintiff indicated to him that
that was his
place of residence. He found no one else at that address except
the plaintiff. He never spoke to anyone else
except the plaintiff. No
person identified herself to him as the owner of the house.
13.
During
cross examination he conceded that he made a mistake in his statement
that the plaintiff was arrested in Cosmo City instead
of Diepsloot.
He testified that there is no address known as [...] G. S. in Cosmo
City. He explained that he is not quiet conversant
with the area as
his unit is based in the Vaal Rand and as a result he might have
mistakenly written Cosmo City instead of Diepsloot
in his statement.
He was adamant that he arrested the plaintiff at [...] G. S.. He
disputed that the plaintiff was arrested at
[...] S. L. S. in Cosmo
City.
14.
The
issues for determination are whether the arrest and detention of the
plaintiff was unlawful, and whether he was maliciously
prosecuted.
Section 40(1)(b) of the Criminal Procedure Act 51 of 1977 (the Act)
provides:
“
1. A peace
officer may without a warrant arrest any person-
(a)………
(b)
Who
he reasonably suspects of having committed an offence referred to in
schedule 1, other than the offence of escaping from lawful
custody.
(e)
Who
is found in possession of anything which the peace officer reasonably
suspects to be stolen property dishonestly obtained, and
whom the
peace officer reasonably suspects of having committed an offence with
respect to such thing.”
15.
In
Duncan
v Minister of Law and order[1986]
2 ALL SA 241
(A
)
the jurisdictional facts for a section 40(1)(b) defence are the
following:
15.1. The arrestor must be a peace
officer,
15.2. The arrestor must entertain a
suspicion,
15.3 The suspicion must be that the
arrestee committed an offence referred to schedule 1 and
15.4. The suspicion
must rest on reasonable ground.
16.
In
order to prove the fourth requirement, the test is not whether the
peace officer believes that he has reason to suspect, but
whether on
an objective approach, he in fact has reasonable grounds for his
suspicion. Once the jurisdictional facts are present,
the discretion
whether or not to arrest arises. The officer is not obliged to
arrest. See
Minister
of Safety and Security v Sekhoto and Another
2011 (1) SACR 315
(SCA)
17.
V
a
n
Heerden JA in Duncan v Minister of Law and Order at 818 H to J supra
said the following:
“
If the
jurisdictional requirements are satisfied, the peace officer may
involve the power conferred by the section, i.e., he may
arrest the
suspect. In other words, he then has the discretion as to whether or
not to exercise that power. No doubt the discretion
must be properly
exercised.”
18.
In
R
v Van Heerden
1958 (3) SA 150
(T)
the court held that the suspicion must be reasonable and the test for
such reasonableness is objective. The approach to be adopted
in
considering whether the suspicion was reasonable is the one followed
by Jones J In
Mabona
and Another v Minister of Law and Order and others 1988 (2) SA
(SE
)
at 658 F-H
“
It seems
that in evaluating his information a reasonable man would bear in
mind that the section authorises drastic police action.
It authorises
an arrest on the strength of a suspicion and without the need to
swear out a warrant; i.e something which otherwise
would be an
invasion of private rights and personal liberty. The reasonable man
will therefore analys and assess the quality of
information at his
disposal critically and he will not accept it lightly or without
checking it where it can be checked. It is
only after an examination
of this kind that he will allow himself to entertain a suspicion
which will justify an arrest: This is
not to say that the information
at his disposal must be of sufficient high quality and cogency to
engender in him a conviction
that the suspect is in fact guilty. The
section requires suspicion and not certainty. However the suspicion
must be based on solid
grounds. Otherwise it will be flightly or
arbitrary and not a reasonable suspicion.”
19.
In
the Sekhoto matter referred to supra, the court held that:
“
Peace
officers are entitled to exercise their discretion as they see fit,
provided that they stay within the bounds of rationality.
The
standard is not breached because an officer exercised the discretion
in a manner other than that deemed optimal by the court.
A number of
choices may be open for him, all which may fall within the range of
rationality. The standard is not perfect or even
the optimum, judged
from the vantage hindsight and so long as the discretion is exercised
within this range the standard is not
breached
.”
20.
Innes
ACJ articulated the following principle in
Shadiack
v Union Government (Minister of interior)
1912 AD 642
at 651-652
:
“
Now
it is settled law that where a matter is left to the discretion or
the determination of a public officer, and where his discretion
has
been bona fide exercised or his judgement bona fide expressed, the
court will not interfere with the result. Not being a judicial
functionary no appeal or review in the ordinary sense would he, and
if he has duly and honestly applied himself to the question
which has
been left to his discretion, it is impossible for a court of law to
make him change his mind or to substitute its conclusion
for its own.
There are circumstances in which inference would be possible and
right. If for instance such an officer has acted
mala fide or from
ulterior and improper motives, if he had not applied his mind to the
matter or exercised his discretion at all,
or if he had disregarded
the express provision of a statute, in such cases the court might
grant relief. But it would be unable
to interfere with a due and
honest exercise of discretion, even if it considered the decision
inequitable or wrong.”
21.
Malicious
prosecution consist in the wrongful and intentional assault on the
dignity of a person, his or her good name and privacy.
The elements
required to show malicious prosecution are that the arrest or
prosecution was instigated without a reasonable or probable
cause and
with malice or
animo
injuriandi
.
See
Heynes
v Venter 2004(3) SA 200 (T) at 280 B.
22.
In
Thomson
and Another v Minister of Police and Another
1971 (1) SA 371
(E)
,
it was held that an arrest is malicious where the defendant makes
improper use of the legal process to deprive the plaintiff of
his
liberty. In
Minister
of Justice and Constitutional Development v Moleko 2008(3) ALL SA
47(SCA),
it was held that in order to succeed with a claim for malicious
prosecution a claimant must allege and prove:
22.1
that
the defendant set the law in motion ( instigated or instituted the
proceedings);
22.2
that
the defendant acted without reasonable and probable cause;
22.3
that
the defendant acted with “malice” ( or amino injuriandi)
and
22.4
that
the prosecution has failed.
It
was further held that “
The
defendant must thus not only have been aware of what he or she was
doing in instituting or initiating the prosecution, but must
at least
have foreseen the possibility that he or she was acting wrongfully,
but nevertheless have continued to act reckless as
to the
consequences of his or her conduct (dolus eventualis). Negligence on
the part of the defendant or I would say, even gross
negligence will
not suffice.”
23.
The
crux of the defendant’s case is that the arresting officer
received information together with an address which was pointed
out
to him by an informer where it was alleged that someone was in
possession of or distributing illicit cigarettes. The information
was
followed at the given address and illicit cigarettes were found. The
plaintiff was the occupant of the room where such cigarettes
were
found. When he was asked about possession of the illicit cigarettes,
according to Sergeant Kuilder, he offered an explanation
which could
not correct the wrong (referring to possession of illicit
cigarettes). Sergeant Kuilder considered the explanation
not to be
reasonable and he arrested him.
24.
On
the other hand the plaintiff alleges that the cigarettes in question
were not found at his residential address but in Ncube’s
room.
It is improbable that Sergeant Kuilder wrote the address [...] G. S.
in his statement merely because it is the address where
the plaintiff
resided. Sergeant Kuilder testified that the address where the
plaintiff was arrested is a two roomed house, that
there was no other
occupant except the plaintiff and no one else but the plaintiff was
arrested at the said address. The case docket
and all other documents
he completed at the police station (Honeydew) indicates the address
where the plaintiff was arrested and
illicit cigarettes found as
[...] G. S..
25.
It is
worth mentioning that nowhere in the case docket or in the arrest
statement is the address [...] S. L. Cosmo City mentioned.
Sergeant
Kuilder disputed that the plaintiff was arrested at [...] S. L. Cosmo
City. It is common cause that there is no address
known as [...] G.
S. in Cosmo City. There is also nowhere where he stated that after
arresting the plaintiff, Ncube arrived and
was also arrested. There
is no reason for Sergeant Kuilder to hide the fact that Ncube was
also arrested on that day. There cannot
be any reason that if Ncube
was arrested he could just be released without being charged. Further
to this there is no reason why
the plaintiff who alleges to have been
just a visitor, should be arrested, charged and be detained for what
he did not have knowledge
of.
26.
It is
not probable that if the events unfolded as the plaintiff and his
witness wants the court to accept, that Sergeant Kuilder
could
dispute their version. He has nothing to gain. The plaintiff
testified that there were many police cars and police officers
at the
time of his arrest. In contradiction to this version, his witness
Nokonzima Mbusha testified that only three police officers
entered
the house. She did not mention that they came driving in many police
cars to her house. On this aspect Sergeant Kuilder
testified that
they were using only one police vehicle and he was the driver
thereof. It is improbable that if Ncube was arrested
at the same time
with the plaintiff, Sergeant Kuilder could not have been aware of
such arrest. It is also strange that Ncube’s
name does not
appear anywhere in the police docket.
27.
It is
clear from the evidence and the pleadings that the arrest and
detention of the plaintiff is not in dispute. What is in dispute
is
the lawfulness or otherwise thereof. Counsel for the plaintiff
submitted that the reasonableness of a suspicion that a suspect
has
committed an offence with regard to an article which is suspected of
having been either stolen or dishonestly acquired depends
on the
acceptability of the explanation given by the suspect for his
possession of such article. He further submitted that the
explanation
given by the plaintiff is the test used to determine whether there
was a reasonable suspicion for purposes of justifying
an arrest in
terms of section 40(1)(e) of the Act.
28.
Counsel
for the plaintiff further more submitted that the fact that Sergeant
Kuilder elected to exclude the explanation given to
him by the
plaintiff in his arrest statement leaves the court with no option but
to accept the explanation given by the plaintiff,
which explanation
according to the plaintiff is reasonable.
29.
Counsel’s
submission does not have merit. According to the evidence of Sergeant
Kuilder he received information, went to the
address pointed out by
the informer, found the plaintiff in the bedroom, searched and found
illicit cigarettes. He never came across
the owner of the premises
other than the plaintiff at that house. He does not know anything
about the person by the name of Ncube.
There was no other person
except the plaintiff who was arrested in connection with the illicit
cigarettes found at the said address.
30.
Sergeant
Kuilder testified further that he could not remember the content of
the explanation given to him by the plaintiff but that
the plaintiff
could not reasonably explain the unlawful and wrongful possession of
the illicit cigarettes. The question whether
a peace officer
reasonably suspects a person of having committed an offence within
the ambit of section 40(1)(e) is objectively
justifiable. It is clear
that the test is not whether a police officer believes that he or she
has a reason to suspect, but whether
on an objective approach, he or
she in fact has reasonable grounds for his suspicion. See
Duncan
v Minister of law and Order supra.
31.
T
aking
into account the fact that the plaintiff was found alone in the
bedroom in which the illicit cigarettes were found and was
not able
to explain the presence thereof, it is reasonable that the arresting
officer entertained the suspicion that a crime was
committed in his
presence, consequently it was not necessary for him to obtain a
warrant.
32.
It is
common cause that the plaintiff is a Zimbabwean citizen , at the time
of his arrest he did not possess a valid passport. Sergeant
Kuilder
testified that he took into account the fact that the plaintiff was
an illegal immigrant for purposes of considering bail.
He concluded
that the detention of the applicant was an appropriate way of
ensuring his attendance in court on the 7
th
May 2012. A warning of the plaintiff or his release on bail at the
police station under these circumstances would not serve the
interest
of justice.
33.
The
fact that the plaintiff was found in possession of illicit cigarettes
and failed to explain his possession thereof can reasonably
be
regarded and interpreted by an objective reasonable police officer as
committing a crime in his presence. There is no
evidence that
Sergeant Kuilder in effecting the arrest was mala fide or was
motivated by ulterior motives or that he abused his
powers. On the
circumstances prevailing in this matter the arrest and detention of
the plaintiff was justifiable and was effected
on reasonable grounds
in light of the reasonable suspicion formed by the arresting officer
in terms of section 40(1)(e) of the
Act.
34.
Against
the backdrop of events and the factors that were common cause at the
time of the plaintiff’s arrest, detention and
the subsequent
withdrawal of the charge against him by the state prosecutor it
cannot be cogently contended by the plaintiff that
the charge
instituted by the Sergeant Kuilder against him was unjustified,
unlawful or predicated on malice. The plaintiff has
not successfully
argued that the prosecution instigated against him was without a
reasonable and probable cause or with malice
or amino inuriarum.
35.
In
the premises I make the following order:
35.1. The
plaintiff’s claim is dismissed with costs.
___________________________
MAHALELO
AJ
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
COUNSEL
FOR PLAINTIFF: ADV T MUDENDA
COUNSEL
FOR DEFENDANT: ADV P MARKS
DATE
OF HEARING: 7 September 2015.
DATE
JUDGMENT: 23 November 2015