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[2016] ZAGPJHC 5
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Mathe v Minister of Police (2013/29650) [2016] ZAGPJHC 5 (29 January 2016)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
CASE NO: 2013/29650
DATE: 29 JANUARY 2016
In the matter between:
MATHE: PATRICK
JABULANE
............................................................................
Applicant/Plaintiff
And
THE MINISTER OF
POLICE
................................................................
First
Respondent /Defendant
J U D G M E N T
HAWYES, AJ:
INTRODUCTION AND COMMON CAUSE FACTS
AD THE MERITS
[1] The Plaintiff instituted action in
the High court against the Defendant following Plaintiff’s
arrest on the 29th January
2011 in Greenside,Johannesburg.
Plaintiff alleges that his arrest and
subsequent detention were unlawful.
[2] The Plaintiff was arrested and
charged with dealing in drugs by oneCaptain Mkhize.
[3]The arrest was affected without a
warrant.
[4]Plaintiff was placed in custody at
Parkview Police Station at about 2h10 On the 30th January 2011 where
he was detained until
Monday the 31st January 2011.
[5] On 31 January 2011 the Plaintiff
was taken to Hillbrow Magistrates Court where his matter was
postponed to the 7 February 2011.
On the 7 February 2011 bail in the
amount of R4000.00 was set for him by the court. It is unclear when
the Plaintiff paid his
bail and Plaintiff could not assist the court
in this regard.
[6] The parties agree that the
Defendant bears the onus to prove that the arrest itself was lawful
(Minister of Law and Order v
Hurley
1986 (3) SA 568
(A) at 589 E-F)
ISSUES TO BE DECIDED
[7.1] The Validity/lawfulness of the
arrest;
[7.2] The period of unlawful detention;
[7.3] Quantum of damages
SURVEY OF PLAINTIFF’S EVIDENCE
AND ARGUMENT
[8] Only the Plaintiff testified in
support of his case.
[9] Plaintiff testified under oath that
on the 29 January 2011 he went to the “Gin Bar” situated
at Gleneagles Street,
Greenside in the company of a friend. They
arrived at the bar at about 18h30 and proceeded to drink alcohol.
Between them they
drank 18 cans of Castle beer.
[10] Before 23h00 Plaintiff’s
friend left the bar and Plaintiff proceeded down the road to a shop
to buy cigarettes. He was
then approached by two white males who
offered him a beer. They were in civilian clothing. They were
driving a BMW motor vehicle.
Plaintiff consumed the one beer with
his companions.
[11] They then discussed the
possibility of purchasing more beers and agreed to go by foot to a
nearby Shell garage to draw money
so they could purchase more
alcohol.
[12] When they arrived at the Shell
garage Plaintiff noticed three or four police vans. The two white
males took him to the toilet
to search him. A lady remained outside.
They found a small packet of white powder in Plaintiff’s
trouser pocket. It was
wrapped in plastic. They said nothing.
Plaintiff testified that he told them the powder was grandpa headache
powder.
[13] Plaintiff was nonetheless arrested
and taken to the police station where he was later charged for
dealing in drugs. He spent
the night in the police cells.
[14] Plaintiff testified further that
there were bed bugs in the cells but no sponge mattresses to sleep
on. He slept on the floor
and was not provided with blankets. He
also had to share the cell with ten to eleven other people. His
whole body was badly bitten
by bed bugs which affected him badly.
[15] Plaintiff denied approaching a
white lady and agreeing to sell her cocaine for R300.00.
SURVEY OF RELEVANT DEFENDANTS EVIDENCE
AND ARGUMENT.
[16] The defendant lead the evidence of
five witnesses to wit, Mrs Rose Mugeri, the Prosecutor of Hillbrow
Magistrate’s Court,
Reservist Constable Zelna Breytenbach nee’
Van Der Merwe (In whose presence the offence was committed), Captain
Mkhize (the
arresting officer), Mrs Bridget Steer and Captain
Ledwaba.
[17] The gist of the Defendant’s
version given by Reservist Constable Van der Merwe is that she is
employed as an administrative
official at the Parkview Police Station
and has been so employed since 2002. Between 2003 and 2013 she
qualified as a constable
police reservist and performed these
additional duties from time to time.
[18] Van der Merwe testified further
that she performed crime prevention duties on the evening of the 29
January and morning of
30 January 2011 together with Captain Mkhize.
She was dressed in civilian clothing and Captain Mkhize was garbed in
uniform.
[19] The community had lodged numerous
complaints about drugs being sold in the area, prostitution and
shebeens’ operating
without liquor licenses. It was hoped to
effect arrests for these crimes.
[20] Van der Merwe testified further
that Captain Mkhize dropped her off at the corner of Glen Eagles and
Barry Hertzog Ave. She
spoke to the car guards and indicated that
she wished to buy drugs, specifically cocaine. She then proceeded to
walk up and down
Glen Eagles Road.
[21] After a while the Plaintiff
approached her and offered her a packet of cocaine for R300.00. Van
der Merwe testified that she
spoke English and that the Plaintiff
conversed with her in Afrikaans. Plaintiff produced a small folded
see through packet containing
a white powder. Van der Merwe
indicated that they should meet at the Shell Garage at Emmerentia
because she needed to draw money.
She walked off with the Plaintiff
walking behind her. Van der Merwe sms’d Mkhize to advise that
she was on the way with
a suspect.
[22] When they arrived at the Shell
garage Mkhize approached and immediately searched the Plaintiff. He
recovered the small packet
containing the white powder in Plaintiff’s
trouser pocket. Plaintiff was arrested for dealing in drugs.
[23] Van der Merwe deposed that she had
been involved in three separate incidents of people selling drugs to
her.
[24] Plaintiff was taken to the
Parkview police station. Van der Merwe made a written statement
detailing the events and Plaintiff
was placed in the cells. The
parcel containing the white powder was placed in a forensic bag and
sealed in Plaintiff’s presence.
It was later dispatched to the
forensic laboratory in Pretoria for analysis. It is common cause
that the white substance did
not contain the active ingredients of
cocaine but rather aspirin.
[25] Plaintiff’s version was put
to Van der Merwe. Latter denied working with white police officers
that evening.
[26] Captain Sandile Mkhize deposed
that he had 28 years’ service with the SAPS, 8 of which were
performed at the Parkview
police station.
[27] Mkhize gave details of just how
bad the incidences of crime were in the area. He admitted to working
with Van der Merwe on
the night of the 29th and morning of the 30th
January 2011. The Plaintiff was arrested during the early hours of
Sunday morning
(30 January 2011).
[28] Mkhize testified that he
specifically briefed Van der Merwe to find someone who would sell her
drugs. Van der Merwe left him
and proceeded to walk up Gleneagles
Road. The two of them communicated via sms. Van der Merwe advised
him that she had found
someone willing to sell her cocaine for
R300.00 and she had advised him that she would draw the money at the
Shell garage in the
nearby vicinity. Mkhize met them there,
introduced himself, searched the Plaintiff, discovered the white
powder in Plaintiff’s
trouser pocket and placed him under
arrest.
[29] Both witnesses were of the view
that Plaintiff was not drunk.
[30] Both witnesses testified that
Plaintiff gave no explanation for the substance in his possession.
ANALYSIS OF WHICH VERSION SHOULD BE
ACCEPTED:
[31] Plaintiff was a single witness in
respect of his version.
[32] Counsel for the Plaintiff referred
to an alleged contradiction between Van Der Merwe and Mkhize
concerning exactly when another
suspect was arrested and taken to the
police station. It is common cause that this other person was
arrested for some alcohol
related offence. Adv Snoyman relies upon
the accuracy of the records at the Parkview police station and the
testimony of the witnesses
to found his argument that Plaintiff was
actually arrested for an alcohol related offence and during the
course of a search of
the Plaintiff the white powder was discovered.
This version postulated by Snoyman himself amounts to unwarranted
speculation and
is not part of the Plaintiff’s own testimony.
[33] The testimony lead revealed that
the records at the police station did not always strictly accord with
the times that they
were recorded and accordingly cannot be relied
upon as proof of specific detail when certain individuals were
arrested in relation
to others. Besides Van der Merwe and Mkhize were
focussed on the arrest of the Plaintiff and not the details of
someone who was
not before court.
[34] With regard to the relevant
testimony in this case I found Mkhize and Van der Merwe to be good,
honest, reliable witnesses
who corroborated each other in all
material respects. Their testimony was detailed and informative.
[35] I was not impressed with the
testimony of the Plaintiff. I found it necessary to make numerous
observations in my notes about
inadequacies in the evidence of the
Plaintiff. This includes comments that the version was improbable, a
contradiction related
to the length of time Plaintiff resided at his
place of residence and numerous incidences of the Plaintiff
demonstrating evasive
conduct when answering questions.
[36] Unlike the version of the
Defendant witnesses Mkhize and Van der Merwe, Plaintiff’s
version is uncorroborated.
[37] I will therefore, accept the
Defendant’s version of the events leading up to the arrest of
the Plaintiff.
THE LAWFULNESS OF THE ARREST:
[38] Whichever version is accepted it
remains common cause that Plaintiff was arrested and spent a day and
a half in police custody
before appearing at the Hillbrow Magistrates
Court on Monday 31st January 2011.
[39] It is also common cause that the
substance found in Plaintiff’s possession was not an illegal
substance (i.e. aspirin).
[40] It is also common cause that the
Defendant bears the onus of proving that Plaintiff’s arrest was
lawful, on a balance
of probabilities.
[41] The Defendant pleaded that the
arrest of the Plaintiff was lawful in that he was lawfully arrested
in terms of section 40(1)
(a) of the Criminal Procedure Act, 51 of
1977 (CPA).
[42] Section 40 (1) (a) of the CPA
states that a peace officer may without warrant arrest any person (a)
who commits or attempts
to commit any offence in his presence.
[43] Adv Snoyman argued that the
alleged offence did not fall within the statutory ambit of section 40
(1) (a) as no offence was
committed in the presence of the arresting
officer Captain Mkhize. The offence of dealing in drugs was
committed in the presence
of police reservist, Mrs van der Merwe and
thus Mkhize had no right to arrest the Plaintiff thus rendering the
arrest unlawful.
[44] It is clear that section 40(1)
goes far wider than sub paragraph (a) and it is necessary to refer to
sub paragraphs (b) and
(c) for the sake of completeness.
[45] Sub paragraphs 40 (1) (b) and (c)
read as follows:
A peace officer may without a warrant
arrest any person:-
(b) who he reasonably suspects of
having committed an offence referred to in schedule 1, other than the
offence of escaping from
custody;
(c) who is found in possession of
anything which the peace officer reasonably suspects to be stolen
property dishonestly obtained,
and who the peace officer reasonable
suspects of having committed an offensive with respect to such thing.
[46] Mkhize (based upon the
communications with his police reservist Van Der Merwe) had a
reasonable suspicion that Plaintiff was
dealing with drugs (selling
cocaine). Dealing in drugs is a schedule 1 crime and so is any
attempt to do so.
[47] It is common cause that Plaintiff
was in the possession of the white powder at the time of his arrest.
The sale had not been
consummated in that Plaintiff still hoped to be
paid his R300 after the money had drawn. Mkhize continued to harbour
a reasonable
suspicion at the time of the Plaintiff’s arrest
due to the information given to him by Mkhize earlier and the
subsequent
search of the Plaintiff’s trouser pockets.
[48] However, it is possible to carry
this argument one step further.
[49] I accept the Defendant’s
version that Plaintiff gave no explanation for his possession of the
white powder at the time
of his arrest. According to the Plaintiff he
told Mkhize that the white powder was grandpa headache powder.
[50] The probabilities suggest that
when the Plaintiff met Van Der Merwe well knowing that he had grandpa
powder in his possession
he tried to sell it to her as cocaine.
Plaintiff perceived Van Der Merwe as a gullible individual. It is
also probable that he
has been drinking and this may have fuelled a
devious intent.
[51] Plaintiff probably wasn’t a
drug dealer in the true sense of the word but more of a con-man whose
actions were every
bit as undesirable as those of drug dealers.
[52] It is probable that Plaintiff made
no mention of the fact that he only possessed aspirin for had he done
so he probably would
have faced an attempted fraud or theft charge
which would have led to a different lawful arrest with regard to the
provisions of
section 40(1) of the CPA.
[53] I agree with the principles set
out by Innes ACJ in Shidiack v Union Government
1912 AD 642
at 651 to
652 as follows:
“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 be; 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 either to make him change his mind or
to substitute its conclusion for his own. There are circumstances in
which interference would be possible and right. If for instance
such
an officer had acted mala fides or from ulterior and improper motive,
if he had not applied his mind to the matter or exercised
his
discretion at all, or if he had disregarded the express provisions 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.”
[54] I find that Mkhize acted within
the prescripts of the law by exercising his discretion to arrest the
Plaintiff. Thus the day
and a half spent by the Plaintiff in police
custody before appearing in court does not constitute unlawful
detention and it is
not necessary for me to apply my mind to the
aspects of Plaintiff further incarceration after appearing in court
since further
detention was requested by the State Prosecutor acting
in her capacity as an official of the Director of Public Prosecutions
(DPP).
It is common cause that the DPP was not cited as a party to
these proceedings. The Defendant has succeeded in proving that
Plaintiff’s
arrest was lawful on a balance of probabilities.
[55] I hereby make the following order:
55.1 Plaintiffs arrest on the 30th
January 2011 was lawful and Plaintiffs action is accordingly
dismissed with costs.
MA HAWYES
ACTING JUDGE OF THE HIGH COURT
ATTORNEYS FOR THE PLAINTIFF: Maesela
Incorporated
COUNSEL FOR THE PLAINTIFF: Adv. C.
Snoyman
ATTORNEYS FOR THE DEFENDANT:The
State Attorney
COUNSEL FOR THE DEFENDANT: Adv. DJ
Joubert
DATE OF HEARING: 27 October 2015
DATE OF JUDGMENT: 29 January 2016