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[2020] ZAGPJHC 309
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Theron v Minister of Police (A3042/17) [2020] ZAGPJHC 309 (1 September 2020)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
CASE
NUMBER: A3042/17
In
the matter between:
JASON
ASHLEY
THERON
Appellant
and
THE
MINISTER OF POLICE
Respondent
J
U D G M E N T
Noko AJ
Introduction
1.
This
appeal lies against the judgment and order of the Magistrate’s
Court for the district of Ekurhuleni North, Kempton Park,
in terms of
which the delictual claims for unlawful arrest and detention was
dismissed. The appellant’s claim was for a globular
sum of R200
000.00.
Background
facts
2.
The
appellant was arrested on 3 November 2014 after he was found in
possession of a vehicle, to wit a Toyota Yaris (“
the
motor vehicle”
)
which was suspected to have been stolen. The appellant was detained
from 3 November 2014 to 5 November 2014 whereafter he was
released
without appearing in court.
Court
a quo
3.
It was
common cause that the appellant was arrested by a police officer,
Captain Mthembu
(“Mthembu”),
and that he was detained for approximately two days. At the
commencement of the trial the parties agreed that the respondent
bore
the
onus
to justify the arrest and detention. The respondent therefore also
had the duty to begin.
4.
The
respondent’s first witness was Mthembu. He testified that on 3
November 2014 he received information that a suspected
stolen motor
vehicle was parked at Birchleigh Mall (also referred to in evidence
as the Pick n Pay Mall)
(“the
Mall”
)
in Norkem Park and he proceeded there with his colleague, Constable
Mazibuko
(“Mazibuko”)
by motor vehicle. When they arrived at the scene he parked his motor
vehicle about 100 meters from where the suspected stolen motor
vehicle was parked. Shortly thereafter the appellant appeared
and proceeded towards the suspected stolen motor vehicle, opened
the
driver’s door and got into the motor vehicle. The appellant
started the engine, but before he could drive away, he was
intercepted by Mthembu, who identified himself and requested the
appellant to search the motor vehicle. The appellant cooperated
and
on inspection it was noted that the engine chassis numbers and the
licence disc were not the same. Mthembu then requested the
appellant
to accompany him to the police station and the appellant obliged. At
the police station the particulars of the motor
vehicle were loaded
onto the SAPS computer system and it was then discovered that the
motor vehicle was reported stolen under case
number 374/08/2014.
When the appellant was confronted with this information he stated
that the motor vehicle belonged to
a person by the name of Bongani.
The appellant was thereafter read his rights, arrested and detained.
5.
Mthembu,
together with his colleague, Mazibuko, then proceeded to the address
of the person who appeared in the SAPS computer system
as the owner
of the stolen motor vehicle. On arriving at the address, the owner
stated that his car had never been reported as
stolen. It was also
discovered that a similar car with registration numbers was parked in
the yard. Both Mthembu, and the said
man then went back to the police
station where it was ascertained that the said motor vehicle was
duplicated, having similar registration
numbers and being of the same
colour as the motor vehicle that had been found in the man’s
yard earlier that day during the
investigation. That was the last
time Mthembu dealt with the matter.
6.
The
respondent then called the investigating officer, Constable Sefago
Moroko (“
Moroko”
),
who is attached to the Motor Vehicle Theft Unit. Moroko testified
that he interviewed the appellant on 4 November 2014. After
receiving
certain information from the appellant he went to the appellant’s
house where he met with the appellant’s
sister, Kutlwano.
Kutlwano told him that she knew where Bongani stayed and she
accompanied Moroko to a certain property. They were
however unable to
access the property as it was situated inside an estate and an access
tag was required to gain entry to the estate.
Kutlwano also provided
Moroko with Bongani’s cell number which rang unanswered when
Moroko attempted to phone him. The docket
was thereafter reallocated
to another investigating officer, Monty Mahlare (“
Mahlare”
).
7.
Mahlare,
who is attached to the Vehicle Identification Unit, testified that he
took the appellant to court on 5 November 2014 where
he conversed
with the public prosecutor. It was decided to release the appellant,
but with the prosecutor’s instructions
that a further
investigation should be conducted. During his investigations
Mahlare also attempted to visit Bongani’s
house but he could
similarly not access the property as it was in an estate and only
accessible using a tag. He tried calling the
cellular number which
was given to him but calls to the cellular phone number always went
directly to voice mail. Mahlare
testified that what made it
even more complicated was the fact that he was only give the name
Bongani; the surname, and the exact
details of the unit Bongani was
supposedly occupying, were not provided. He conceded during cross
examination that more could have
been done such as tracing the
Body Corporate of the estate in order to gain permission to access
the property, as well as
invoking section 205 of the Criminal
Procedure Act 51 of 1977
(“the
CPA”)
which could have assisted in locating and getting the details of
Bongani. However, at that time the appellant had already been
released without being charged. The investigation was not finalised
and the docket was subsequently reallocated to another investigating
officer. That concluded the evidence on behalf of the respondent.
8.
The
appellant testified that he was at the Mall with his sister,
Kutlwano, to draw money for his mother from Pick n Pay. On entering
the Mall, they spotted Bongani sitting in a restaurant. They then
went to greet him. Bongani requested the appellant to fetch his
motor
vehicle and to bring it closer to where he was seated.
The appellant agreed and proceeded to the motor vehicle.
He opened
the driver’s door, got into the motor vehicle, and started the
engine. This was when he was confronted by Mthembu
and Mazibuko.
Mthembu instructed him to alight from the motor vehicle and Mthembu
inspected the vehicle. Mthembu then told him
that the motor vehicle
was reported stolen. Bongani and Kutlwano then came to the
scene. The appellant told Mthembu that
the motor vehicle belonged to
Bongani, who, in the presence of the police officers, confirmed that
the motor vehicle was his. Mthembu
however only instructed the
appellant to accompany them to the police station and left Bongani
behind. At the police station he
was detained and Mthembu then went
back to the Mall and searched for Bongani, but was unable to find him
9.
The
appellant called his sister, Kutlwano, to testify. She testified that
she drove with the appellant in their mother’s car
to withdraw
money from Pick ‘n Pay at the Mall. They first stopped at the
Engen garage for petrol and then proceeded to the
Mall. They spotted
Bongani seated at the restaurant eating. They approached Bongani to
greet him and that is when Bongani requested
the appellant to drive
his car and park it closer to where he was seated. The appellant
proceeded to the car and was confronted
by Mthembu who accused him of
driving a stolen car. Kutlwano and Bongani then went to the motor
vehicle and Bongani told Mthembu
that the motor vehicle belonged to
him. Mthembu informed them that he was taking the appellant with him
and Bongani may come if
he so wished. Bongani did leave with them but
Kutlwano later learnt that he was not arrested and detained with the
appellant. In
a subsequent discussion with Bongani he did not give a
clear account why he was not detained, but undertook that he will
make a
plan for the appellant to be released. That concluded the
evidence on behalf of the appellant.
10.
The
court
a
quo
held that the onus was on the respondent to demonstrate that the
arrest was lawful. The court made reference to section 40 of the
CPA
which requires that the arresting officer should have a reasonable
suspicion based on reasonable grounds that the suspect committed
an
offence referred to in schedule 1. The magistrate held that the
requirement is not that the arresting officer should satisfy
himself
of all the elements of the offence, but that the arresting officer
should only have reasonable suspicion that such an offence
has been
committed. The court noted that on inspection the arresting officer
established that the chassis number on the motor vehicle’s
engine did not correspond with the registration numbers of the motor
vehicle. In addition, on subsequent enquiry, it transpired
that a
case of theft was indeed registered under Primrose Cas. 374/08/2014.
11.
The
court
a
quo
found that because there were reasonable grounds for the suspicion,
the arrest was lawful and it therefore follows that the detention
was
lawful. The magistrate proceeded and stated that “…
when
Capt. Mthembu decided to arrest the plaintiff he had no powers to
release the plaintiff since the powers to release or detain
the
plaintiff rested with the courts. On the basis I am of the view that
the detention of the plaintiff was not unlawful”
.
(sic).
Before
this court
12.
The
appellant applied for condonation for the failure to comply with Rule
51 (3) and 51 (4) of the Magistrate Court Rules. The appellant
had
failed to serve and file the notice of appeal on the magistrate. This
application was not opposed and the explanation given
by the
appellant for the non-compliance is accepted. Condonation is granted.
13.
The
appellant contended that the
onus
is on the respondent to demonstrate that the arrest was lawful. The
arresting officer is therefore required to demonstrate that
he held a
reasonable suspicion that the appellant committed a crime of theft,
alternatively a crime in terms of s 36 or s 37 of
the General Law
Amendment Act 62 of 1955 (“the General Law Amendment Act”)
. Section 36 of the General Law Amendment
Act provides that
“
any
person found in possession of any goods … in regard to which
there is a reasonable suspicion that they have been stolen
and is
unable to give a satisfactory account of such possession shall be
guilty of an offence …”
14.
The
appellant contended that there was no basis for the arresting officer
to arrest the appellant especially in circumstances where
both the
appellant and his sister told the arresting officer that the motor
vehicle belonged to Bongani.
15.
The crux
of the appellant’s argument was that the arresting officer did
not satisfy the jurisdictional fact that there was
the existence of a
reasonable suspicion that the appellant was committing a schedule 1
offence. In addition, so it was argued,
section 36 and 37 of the
General Law Amendment Act enjoins the arresting officer to satisfy
himself that the possession of the
stolen property was without
reasonable explanation, or alternatively that the possessor had
reasonable suspicion that the motor
vehicle was stolen. In
casu
the appellant supported by his sister, confirmed that possession of
the motor vehicle was authorised by Bongani who was the owner
of the
motor vehicle. As a result there was no basis for the arresting
officer to conclude that the appellant was in a possession
of a motor
vehicle with the knowledge that it was stolen or should have
suspected that it was stolen.
16.
The
respondent’s counsel contends that the arrest was justified as
the appellant was arrested in possession of a motor vehicle
suspected
to have been stolen. In fact, so it is argued, at the time when
Mthembu intercepted the appellant he was already
armed with the
information that there was a motor vehicle parked at the Mall which
had been reported as stolen. It was submitted
that the conduct of the
respondent in this regard was on all fours with the requirements of
section 40 of the Act read with section
37 of the General Law
Amendment Act.
17.
Counsel
for the respondent further contended that the evidence presented by
the arresting officer and the other witnesses for the
respondent were
water tight, credible and probable. It was submitted that the
evidence of the appellant was riddled with contradictions
and should
be rejected by the court. It was also contended that it was
improbable that an arresting officer of such experience
will decide
not to arrest Bongani who allegedly came to the scene and confirmed
that he is the owner of the motor vehicle in question.
The respondent
also submitted that for some inexplicable reasons Bongani was not
called to testify by the appellant who could have
confirmed that the
motor vehicle belonged to him and that he was the one who sent the
appellant to drive and bring the car closer.
Evaluation
18.
Section
40(1)(b) of the CPA provides that “
a
peace officer may without an arrest warrant arrest any person who he
reasonably suspects of having committed an offence referred
to in
schedule 1, other than the offence of escaping from custody.”
19.
The
appellant was arrested by Mthembu who testified that he arrested the
appellant for possession of stolen property i.e. s 36 of
the Criminal
Law Amendment Act. In schedule 1 of the CPA only the common law
offence of “Receiving stolen property knowing
it to have been
stolen” is included and not an offence under s 36 or 37 of the
General Law Amendment Act. Possession of stolen
property in
contravention of s 36 of the General Law Amendment Act is therefore
not a schedule 1 offence. The arrest could therefore
not have been
made in terms of section 40(1)(b) of the CPA as the circumstances
giving rise to the suspicion must be such as would
ordinarily move a
reasonable man to form the suspicion that the arrestee has committed
a
schedule
1 offence
(my emphasis). Section 40(1)(e) which applies to the offences
referred to in s 36 and 37 of the General Law Amendment, does however
make provision for an arrest without a warrant if any person:
“…
.
is found in possession of anything which the peace officer reasonably
suspects to be stolen property or property dishonestly obtained,
and
whom the peace officer reasonably suspects of having committed an
offence with respect to such thing.”
20.
The
jurisdictional requirements for a s 40(1)
(e)
defence are: (i) the arrestor must be a peace officer; (ii) the
arrestor must entertain a suspicion; (iii) the suspicion must be
that
the property had been stolen or acquired by dishonest means; (iv)
that the arrestee had committed an offence in connection
with the
property and that; (v) the suspicion was based on reasonable
grounds.
[1]
The question whether the suspicion of the peace officer effecting the
arrest is reasonable must be approached objectively.
[2]
Accordingly, the circumstances giving rise to the suspicion in terms
of s 40(1)(e) must be such as would ordinarily move a reasonable
person to form a suspicion that the property has been stolen/
acquired by dishonest means and that the arrestee has committed an
offence in connection with the property.
21.
It is
trite that once these jurisdictional facts are present the discretion
whether or not to arrest arises.
[3]
In
Raduvha
v Minister of Safety and Security and Another
[4]
the Constitutional Court confirmed the principles enunciated in
Sekhoto
and
Duncan
and held as follows:
“[42] Section 40(1) of the CPA
states that a police officer “may” and not “must”
or “shall”
arrest without a warrant any person who
commits or is reasonably suspected of having committed any of the
offences specified therein.
In its ordinary and grammatical
use, the word “may” suggests that police officers have a
discretion whether to arrest
or not. It is permissive and not
peremptory or mandatory. This requires police officers to weigh
and consider the prevailing
circumstances and decide whether an
arrest is necessary. No doubt this is a fact-specific enquiry.
As the police officers
are confronted with different facts each time
they effect an arrest, a measure of flexibility is necessary in their
approach to
individual cases. Therefore, it is neither prudent
nor practical to try to lay down a general rule and circumscribe the
circumstances
under which police officers may or may not exercise
their discretion. Such an attempt might have the unintended
consequence
of interfering with their discretion and, in the process,
stymie them in the exercise of their powers in pursuit of their
constitutional
duty to combat crime.”
22.
In
Raduvha
supra
the court found that as section 40(1) grants police officers a
discretion whether to arrest, “
the
two courts should have gone further in their evaluation of the
evidence to determine whether the facts justified an arrest.
This is
so because an arrest is a drastic invasion of a person’s
liberty and an impairment of their rights to dignity, both
of which
are enshrined in the Bill of Rights.
At
paragraph [44] it was held as follows:
“[44] In other words the courts
should enquire whether in effecting an arrest, the police officers
exercised their discretion
at all. And if they did, whether
they exercised it properly as propounded in
Duncan
or
as per
Sekhoto
where the court, cognisant of the
importance which the Constitution attaches to the right to liberty
and one’s own dignity
in our constitutional democracy, held
that the discretion conferred in section 40(1) must be exercised
“in light of
the Bill of Rights”.
23.
At the
time of the arrest the arresting officer had the following facts at
his disposal; firstly, he had information that a stolen
motor vehicle
was parked at the Mall, secondly, on his arrival at the Mall he found
the motor vehicle, in the possession of the
appellant, and after
inspecting the motor vehicle he discovered that the chassis number
and the registration of the motor vehicle
were not the same. He asked
the appellant to accompany him to the police station and the
appellant agreed. Thirdly, when subsequently
loading the information
of the motor vehicle in the SAPS computer system, it reflected that a
case of theft was opened in relation
to the said motor vehicle. When
assessing these facts objectively, Mthembu had a reasonable suspicion
that the motor vehicle had
been stolen or acquired by dishonest means
and that the appellant had committed an offence in connection with
the motor vehicle.
Under cross examination Mthembu disputed that
appellant was in the company of his sister at the time of the arrest;
that
the appellant informed him that the motor vehicle belonged
to Bongani; or that Bongani was present when the appellant was
apprehended. It is Mthembu’s evidence that the name “Bongani”
was only mentioned by the appellant at the police
station after the
appellant was informed that the motor vehicle was stolen. Mthembu’s
evidence was corroborated by Moroko
in all material aspects.
24.
In light
of the two mutually destructive versions presented before court the
approach formulated by Nienaber JA in
Stellenbosch
Farmers’ Winery Group & another v Martell et Cie
is
apposite
:
“
The
technique generally employed by courts in resolving factual disputes
of this nature may conveniently be summarised as follows.
To come to
a conclusion on the disputed issues a court must make findings
on (a) the credibility of the various factual
witnesses; (b) their reliability; and (c) the
probabilities. As to (a), the court’s finding on the
credibility of a particular witness will depend on its impression
about the veracity of the witness. That in turn will depend on
a
variety of subsidiary factors, not necessarily in order of
importance, such as (i) the witness’s candour and demeanour
in
the witness-box, (ii) his bias, latent and blatant, (iii) internal
contradictions in his evidence, (iv) external contradictions
with
what was pleaded or put on his behalf, or with established fact or
with his own extracurial statements or actions, (v) the
probability
or improbability of particular aspects of his version, (vi) the
calibre and cogency of his performance compared to
that of other
witnesses testifying about the same incident or events. As
to (b), a witness’s reliability will depend,
apart from
the factors mentioned under (a)(ii), (iv) and (v) above, on (i)
the opportunities he had to experience or observe
the event in
question and (ii) the quality, integrity and independence of his
recall thereof. As to (c), this necessitates
an analysis and
evaluation of the probability or improbability of each party’s
version on each of the disputed issues. In
the light of its
assessment of (a), (b) and (c) the court
will then, as a final step, determine whether
the party burdened with
the onus of proof has succeeded in discharging it. The hard case,
which will doubtless be the rare one,
occurs when a court’s
credibility findings compel it in one direction and its evaluation of
the general probabilities in
another. The more convincing the former,
the less convincing will be the latter. But when all factors are
equipoised probabilities
prevail
.”
[5]
25.
Based on
the evidence presented by the appellant it is highly unlikely that
Bongani was present when the appellant was found in
possession of the
stolen motor vehicle and that he admitted that he was the owner of
the said motor vehicle. If the appellant’s
version is correct
it is inexplicable why Mthembu would not have arrested Bongani. The
appellant’s version, namely that Bongani
admitted that it was
his motor vehicle and that he was “let go” by the police,
is, under the circumstances, highly
improbable. The objective
evidence points to the fact that the only time when the appellant
stated that the motor vehicle belonged
to Bongani was when the
appellant was at the police station after the SAPS computer system
confirmed that the motor vehicle was
reported stolen. Section 36 of
the Criminal Law Amendment Act stipulate that the person in
possession of the stolen motor vehicle
should give a reasonable
explanation of his possession of a motor vehicle suspected to be
stolen. In
Doma
v S
,
[6]
Sutherland J held that it is sufficient that the police officer
should form a reasonable suspicion on the facts presented before
him
and need not go to the extent of asking the stranger to account to
the possession of the motor vehicle by the person found
in possession
of the stole item or item suspected to be stolen.
26.
The
probabilities are in favour of the respondent’s version and
points to the fact that Bongani was a name that was only mentioned
after the appellant was taken to the police station. In this regard
it is also noteworthy that two investigating officers were
unable to
locate the whereabouts of Bongani or get hold of him on the cell
phone number provided to the police. Coincidentally,
the appellant
was also unable to secure Bongani’s attendance at court to
testify on his behalf. Kutlwano, who testified that
she knows Bongani
very well, was, oddly enough, also unable to shed any light on
“Bongani’s” whereabouts.
27.
During
his testimony the appellant gave an elaborate version of how he was
asked to bring Bongani’s motor vehicle closer to
the restaurant
where he was eating, how he was arrested, released, and arrested
again, and how the police was looking for Bongani
“in the
bushes” The appellant’s version was riddled with
contradictions and improbabilities. The appellant’s
explanation
that he gave to the police about how he came into possession of the
motor vehicle was improbable and completely unsatisfactorily.
28.
It is
trite that a court of appeal will only interfere with the findings of
the lower court where it is clear that the presiding
officer
misdirected himself on the facts or the law or exercised his
discretion capriciously. The evidence in this matter
clearly
shows that the arresting officer had reasonable grounds to suspect
that the appellant was in possession of stolen property.
Under
the circumstances of this case there is no evidence to show that
Mthembu did not exercise his discretion in a proper manner.
Consequently,
the court
a
quo
was correct in its finding that the arrest and subsequent detention
of the appellant were lawful.
29.
The
magistrate found that once an arrest was effected the release was
only left to the court. This may not necessarily be the correct
legal
position. However, the appellant was released without appearance in
court. Section 50(1)(c)(i) of the CPA permits releasing
the accused
from detention in the event no charge is being brought against the
accused. In
casu
no charge was brought against the accused and as such the release,
even though not authorised by the court, was within the purview
of
the provisions of section 50(1)(c) of the CPA. Section 50(1)(c)(i) of
CPA read with section 35(1)(d)
[7]
of the Constitution, provides that an accused has to be brought to a
lower court as soon as reasonably possible, but not later
than 48
hours after the arrest. It was appellant’s case that he was not
taken to court within reasonable time. In any event,
it is clear that
efforts were made by the investigating officers in locating Bongani
through visiting his place of residence and
or calling the only
number which was availed to them by the appellant’s sister, to
no avail.
30.
In
conclusion the court is satisfied that the arguments this court is
satisfied that the court a quo
did
not misdirect itself on the facts or the law, and consequently
this court is not at liberty to interfere with its
finding. The
arguments
advanced
in support of the appeal are not sustainable and the appeal cannot be
upheld.
31.
In the
result the following order is made:
(a)
The
appeal is dismissed with costs.
_______________________
NOKO AJ
ACTING JUDGE OF THE
HIGH COURT GAUTENG LOCAL
DIVISION
I agree
________________________
WINDELL J.
JUDGE OF THE HIGH COURT
GAUTENG LOCAL DIVISION
APPEARANCES:
For
the Appellant
:
MR
EPHRAIM TALANE
Instructed
by
:
E
TALANI INCORPORATED
For
the Respondents
:
ADV
M W DLAMINI
Instructed
by
:
OFFICE
OF THE STATE ATTORNEY, JOHANNEBURG
Date
of hearing
1
June 2020
Date
of judgment
this judgment was handed
electronically by circulation to the legal representatives by
email. The date and time for the hand
down is deemed
[1]
Setlhapelo v Minister of Police
2015
JDR 0952 (GP) at [25].
[2]
Rex v Van Heerden
1958(3) SA 150 (T).
[3]
See
Duncan v
Minister of Law and Order
1986 (2) SA
805(A)
and
Minister of Security v
Sekhoto & Another
2011 (5) SA 367
(SCA).
[4]
2016
(2) SACR 540 (CC).
[5]
2003(1) SA 11 (SCA) at para 5.
[6]
(2012)/A447) ZAGPJHC 116
[7]
Everyone who is arrested for allegedly committing
an offence has the right –
(d) to
be brought before the court as soon as reasonably possible, but not
later than-
(i)
48 hours after the arrest; or
(ii)
the end of the first court day after the expiry of the 48 hours, if
the 48hours expire outside the ordinary court hours or
on a day
which is not an ordinary court day.”