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[2018] ZAGPJHC 46
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Mhlanga v Minister of Police (41410/2012) [2018] ZAGPJHC 46 (16 February 2018)
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REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 41410/2012
Not
reportable
Not
of interest to other judges
16/2/2018
In
the matter between:
MHLANGA
PHIKIZANI
PLAINTIFF
and
THE
MINISTER OF
POLICE
DEFENDANT
JUDGMENT
MOOSA
AJ
:
INTRODUCTION
[1]
The Plaintiff herein is Mhlanga Phikizani, an adult female
businesswoman of […] F. Park, Devland.
[2] In
casu,
she sues the
Minister of Police as a result of an incident that occurred on 12
February 2012, when members of the South African
Police Services
arrested the Plaintiff without a warrant.
[3]
She alleges that both her arrest and subsequent detention at the
Eldorado Park Police station was unlawful and unreasonable,
and that
she suffered damages as a result thereof for injury to her privacy,
dignity and bodily integrity until her release from
custody by
members of the SAPS on 13 February 2012.
[4]
The plaintiff claims damages in the amount of R 150 000.00 (one
hundred and fifty thousand rands), plus interest at the rate
of 15.5%
from date of summons and costs of the action.
[5]
The defendant has defended the claim by Plaintiff and in his plea
denies all the allegations and puts the Plaintiff to the proof
thereof.
[6]
At the commencement of the trial the parties agreed that the
Defendant had the right to begin as the burden of proof rests on
the
arresting officer to prove that the arrest was lawful
[1]
.
It is well established that the onus rests on the arresting officer
to prove the lawfulness of the arrest. This is so because
as Rabie CJ
stated in
Minister
of Law & Order & others v Hurley & another
1986 (3) SA
568
(A) at 589 E – F
:
‘An arrest constitutes an interference with the liberty of the
individual concerned, and it therefore seems to be fair and
just to
require that the person who arrested or caused the arrest of another
person should bear the
onus
of proving that his action was justified in law’.
EVIDENCE
[7] The only witness called by the
Defendant was the arresting officer, Constable Thembisile Wicliff
Skotha (‘Skotha’)
who was in the employ of the SAPS for a
period of 8 (eight) years as at the time of the incident. He
testified that he was on crime
prevention duties together with other
colleagues during the afternoon of 12 February 2012. He received
information of a number
of people who were unlawfully dealing in
liquor whilst patrolling the Freedom Park area.
[8]
Skotha testified further that he proceeded to the address where it
was alleged that the unlawful sale of alcohol was taking
place. Upon
arrival at the premises, he observed a number of persons sitting in
the premises whilst consuming alcohol. He further
observed a number
of liquor advertisements that were displayed on the premises. Upon
further inspection, he asked one of the patrons
as to the whereabouts
of the owner. This patron pointed out the Plaintiff to him and he
observed her selling alcohol to her patrons.
He immediately
approached her and requested her to produce a permit that entitled
her to sell alcohol.
[9]
The Plaintiff however failed to produce any permit that entitled her
to lawfully sell liquor to members of the public from her
premises.
When taxed further about the permit, the Plaintiff stated that the
patrons had purchased the liquor from a neighbour
and that she was
only selling traditional beer to them.
[10]
Skotha then searched the premises in the presence of the Plaintiff
and found several bottles of alcohol in the shack and her
refrigerator, which he confiscated. The Plaintiff was then informed
that she was being charged for dealing in liquor without a
permit and
placed under arrest, after her rights were properly read and
explained to her. She was then placed in the police vehicle,
and
taken to the Eldorado Police Station. She was detained thereat and
the exhibits entered in the SAP 13 register with serial
number 189,
which comprised of the following: 27 (twenty seven) bottles of 750 ml
Hansa Pilsener; 7(seven) bottles of 750 ml Castle
Lager; 3 (three)
bottles of 750 ml Black Label and 3 (three) SAB crates.
[11]
He was adamant that he did not confiscate any traditional (sorghum)
beer, nor did he see anyone consuming traditional beer
at the
premises. He testified that he was entitled to arrest the Plaintiff
during the crime prevention operation and especially
when a crime was
being committed in his presence. Further, he did not issue a summons
to the Plaintiff as it was a Sunday and secondly
it would have
defeated the purposes of the crime prevention exercise, by waiting
for summons to be issued to the Plaintiff for
the crime committed.
[12]
The Plaintiff was duly processed at the charge office and placed in
the holding cells. She was handed a notice of her constitutional
rights under Notice Number Q2794638.
[13]
The witness referred to the SAPS 10 wherein it is recorded that the
Plaintiff was charged at 23h10 on 12 February 2012 and
thereafter
released. Skotha testified that the Plaintiff was released from
custody a few hours after her arrest, having paid an
admission of
guilt. The Plaintiff subsequently paid an admission of guilt in the
amount of R 100.00 (one hundred rand) under counterfoil
number
W7702495 at the Eldorado Police Station. Skotha testified that the
only time an arrested person would pay an admission of
guilt would be
if they acknowledge that they have been guilty of the crime for which
they have been charged. He referred to the
relevant SAPS registers to
corroborate his viva voce testimony.
[14]
The Defendant, Mhlanga Permission Phikizani testified that on 12
February 2012 she was at her yard and seated with her customers
who
were consuming sorghum beer, when two members of the South African
Police Services arrived thereat. They walked passed the
group and
entered her shack and opened the refrigerator where she kept her
meat. They enquired as to who the owner of the
premises was and
she identified herself accordingly. They asked her if she was selling
beers and she denied same, adding that the
beers that were in her
refrigerator belonged to her customers and that she was selling
sorghum beer.
[15]
They insisted that the beer belonged to her and that she was selling
it to her customers and subsequently placed her under
arrest. She
denied selling any of the beer to her customers and further denied
that the members of the SAPS had asked her for any
documentation.
She testified that the liquor that was confiscated belonged to
her customers who had requested her to keep
them cold in her
refrigerator. She denied ever been explained any of her
constitutional rights.
[16]
Her children of 12 (twelve) and 8 (eight) years old were extremely
upset and crying whilst she was placed in the police vehicle,
in full
view of her customers and children. She denied having any liquor
adverts displayed on her premises.
[17]
Upon arrival at the Eldorado Police Station she was duly processed
and placed in a cell, which was in a very bad state, inter
alia, the
toilet was not flushing; the cell smelt foul and she observed other
inmates relieving themselves on the floor. She was
not given anything
to eat or drink and neither was there any drinking water available.
She felt very humiliated and did not feel
good about being arrested.
[18] She denied ever being explained
any of her rights at the Police Station. She was only given a
document containing her constitutional
rights at a later stage, when
she was asked as to whether she wanted to be released or not.
She denied paying an admission of
guilt in the amount of R 100.00 (one hundred rand) for her release
from custody and denied ever
admitting guilt that she was selling
liquor illegally.
EVALUATION
[19]
It is important to note that the particulars of claim state that the
Plaintiff was unlawfully arrested on 12 February 2012
by unknown
members of the South African Police Services without a warrant acting
within the scope of their employment with the
Defendant on a charge
of ‘Drinking in Public and dealing in Liquor’. Alleging
further that the arrest of the Plaintiff
was unlawful as she did not
commit the offences for which she was arrested as she was only
selling traditional beer, which does
not require a licence and that
such arrest was not justified under the provisions of
Section 40
of
the
Criminal Procedure Act 51 of 1977
.
[20]
Central to the considerations of whether Plaintiff’s arrest was
unlawful or not, are
Sections 39
and
40
(1) (a) and (h) of the
Criminal Procedure Act
[2]
together with the evidence of the parties.
[21] In terms of
Section 40
(1) (a) of
the
Criminal Procedure Act 51 of 1977
, a peace officer may arrest a
person without a warrant who commits or attempts to commit an offence
in his/her presence. The requirements
that must be met before the
power conferred in terms of
S 40(1)
(a) may be exercised are as
follows:
(1) The arrestor must be a peace
officer;
(2) an offence must have been
committed or there must have been an attempt to commit an offence;
and
(3) such commission
or attempt must have been in his or her presence.
In
terms of
Section 40
(1) (h) a peace officer may arrest a person
without a warrant who is reasonably suspected of committing or having
committed an
offence under any law governing the making, supply,
possession or conveyance of intoxicating liquor or of
dependence-producing
drugs or the possession or disposal of arms or
ammunition.
[22]
Section 154 (1) (a) of the Liquor Act 27 of 1989 (‘Liquor Act’)
provides as follows: “
Any
person who sells any liquor otherwise than under a licence or an
exemption, shall be guilty of an offence”
.
Section
163 (1) (a) of the Liquor Act reads as follows: “
Any
person who is guilty of an offence in terms of this Act shall on
conviction be liable – in case of an offence referred
to in
Section 154 (1) (a) to a fine or to imprisonment for a period of not
more than five years”
[23]
The question whether an officer was authorised to arrest a person is
therefore a factual one, namely whether an offence was
committed or
attempted to be committed in the presence of a peace officer. This
gives the officer a wide discretion, irrespective
of the crime that
was committed. In
Minister
of Safety and Security v Kleinhans
2014 (1) SACR 613
(WCC),
Le Grange J noted that the power to arrest comes into existence when
the above noted factual situation exists, irrespective of
the trivial
nature of the crime.
[24]
The precarious nature of the fact that the decision to arrest is left
to the idiosyncratic nature of every officer of every
officer of the
law is summarised in the Supreme Court of Appeal decision in
Minister
of Safety and Security v Sehoto & Another
2011 (1) SACR 315
(SCA)
:
“
This
would mean that peace officers are entitled to exercise their
discretions as they see fit, provided that they stay within the
bounds of rationality. The standard is not breached because an
officer exercises the discretion in a manner other than that deemed
to be optimal by the court. A number of choices may be open to him,
all of which may fall within the range of rationality. 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”.
The factors, in my view, that need to
be present for an officer to affect an arrest without a warrant, or
rather a rightful arrest,
with reference to the aforementioned
decision would be the following:
(1) The
jurisdictional prerequisites for S 40 (1) must be present;
(2) the arrestor must be aware that he
or she has a discretion to arrest;
(3) the arrestor must exercise that
discretion with reference to the facts;
(4) there is no
jurisdictional requirement that the arresting officer should consider
using a less drastic measure than arrest to
bring the suspect before
court.
[25]
Skotha testified that pursuant to information received he attended at
the premises of the Plaintiff and, inter alia, observed
her selling
liquor without being in possession of a valid licence/permit.
Accordingly, he was of the view that an offence in terms
of the
Liquor Act was being committed in his presence and he accordingly
proceeded to arrest the Plaintiff, for such contravention.
[26]
It is common cause between the parties that the confiscated items, as
per the SAP 13 were taken from the premises of the Plaintiff.
The
crisp dispute is whether the Plaintiff was selling the liquor to her
customers as per Skotha, or whether on her version she
was merely
storing the liquor in her refrigerator for her customers and selling
traditional (sorghum) beer, at the time.
[27] The question simply to be
answered is whether the Plaintiff had committed an offence in the
presence of the member of the SAPS,
and if this is the case then this
court must find that the arresting officer was lawfully justified in
terms of the
Criminal Procedure Act and
the relevant legislation in
terms of the Liquor Act. This answer can only be obtained after a
careful analysis and appraisal of
the evidence of the two witnesses
who appeared before this court.
[28] Skotha gave his evidence in a
simple straight - forward manner without contradicting himself. His
evidence simpIy is that during
a crime prevention operation he
received information of unlawful dealing in liquor taking place at
the premises of the Plaintiff.
He proceeded thereto and observed the
Plaintiff selling liquor from her shack to her customers. He
requested her to produce a permit
that she was unable to. Hence, it
was clear to him at the time that she had contravened Section 154 (1)
(a) of the Liquor Act,
in that she had committed such offence in his
presence.
[29]
On the other hand the Plaintiff wants this court to accept her
version that she was merely selling traditional beer and that
the
liquor was kept in her refrigerator for safekeeping. Further, that
she did not sell any liquor to her customers at the time;
and cannot
furnish this court with any reason as to why the member of the SAPS
would want to falsely implicate her in the commission
of the offence.
What I find strange is the fact that she denies being properly
appraised of her rights at all material times,
despite the
documentary evidence that was presented during the trial. This in my
view is clearly a ruse to bolster her allegations
of an unlawful
arrest on the part of the SAPS.
What
is more telling and in my view the death knell of the Plaintiff’s
case is the fact that she paid an admission of guilt;
which she
vehemently denies. It begs the question as to who would be so
magnanimous to pay an admission of guilt on behalf of the
Plaintiff,
in order to secure her release from custody on the night of 12
February 2012.
[30]
It is clear from the documentary evidence presented before this court
that the Plaintiff was arrested during a crime prevention
operation,
detained at the SAPS Eldorado Park in terms of the proper protocols
and subsequently released from custody, after having
paid an
admission of guilt and before any appearance in court on 13 February
2012.
[31]
After carefully considering the totality of the evidence before me,
having due regard to the applicable law and the necessary
caution to
be applied regarding single witnesses, I am satisfied that the
Defendant has established that the arrest upon the Plaintiff
on 12
February 2012 was justified in the circumstances, and that such
arrest was lawful in terms of
Sections 39
and
40
(1) (a) of the
Criminal Procedure Act 51 of 1977
.
I find that Skotha was a reliable and
credible witness. He gave his evidence in a clear, concise and
chronological manner and was
not swayed by probing cross -
examination. The Plaintiff on the other hand did not make a very good
impression on this court and
she faired fairly badly during her
evidence before this court.
ORDER
[32]
In
the result, I make the following order:
The Plaintiff’s claim is
dismissed with costs including costs of counsel.
________________________________
C I MOOSA
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION
JOHANNESBURG
Counsel for Plaintiff: Mr T Ntunja
Instructed by: Ettas Arthur Makamu
Inc
Johannesburg
Tel: 0118321040
Ref:
EAM/20/2012
Counsel for Defendant: Ms M Kgariya
Instructed by: Office of the State
Attorney
Johannesburg
Tel:
0113307634
Ref:
6953/12/P62/fm
Dates
of hearing 16 February 2017
17
February 2017
20
February 2017
21
February 2017
23
February 2017
27
February 2017
Date
of Judgment 16 February 2018
[1]
See
Minister of Safety and Security and Another v Swart 2012 (2) SCA at
191
[2]
51 of
1977