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[2021] ZAGPJHC 155
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Bhengu v The Minister of Police (42822/2018) [2021] ZAGPJHC 155 (13 May 2021)
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
CASE NO: 42822/2018
Not Reportable
Not Of interest to other
judges
Revised: Yes
Date: 13 May 2021
In the matter between:
BHENGU:
ZABALUNGE
Plaintiff
and
MINISTER OF
POLICE
Defendant
JUDGMENT
ALLY AJ
INTRODUCTION AND
BACKGROUND FACTS
[1]
This is a delictual claim for damages arising from the arrest of the
Plaintiff on
23 April 2018 by members of the Defendant.
[2]
The incident which gave rise to the Defendant being arrested occurred
on 27 January
2018 at House No 102 N[....] Park at O[....] East. In
the incident a person by the name of Businessman Bonga was stabbed on
the
head with an Okapi knife and succumbed some time later on 19
April 2018.
[3]
Plaintiff alleged that his arrest without a warrant and subsequent
detention was unlawful
and the Defendant pleaded that the Plaintiff
was lawfully arrested in terms of
Section 40(1)
(b) of the
Criminal
Procedure Act 57 of 1977
, as amended. As a result, Counsel for the
Defendant accepted that they had the duty to begin and had admitted
thereto in the
Rule 37
Conference. Defendant further pleaded, it its
amended plea, that the Plaintiff was lawfully detained in terms of
Section 50
of the
Criminal Procedure Act 57 of 1977
, as amended.
[4]
Sergeant Samuel Seloane who was a Corporal at the time of the
incident was called
to testify on behalf of the Defendant.
[5]
Sergeant Seloane testified that he had been on duty when he was
called to the front
of the charge office where he met a lady,
Nolufefe, who indicated to him that her brother had died after being
stabbed on 27 January
2018.
[6]
Sergeant Seloane enquired whether a case had been opened when the
incident occurred
and Nolufefe answered in the negative. Nolufefe
indicated further that she wanted a case number to provide same to
the administration
at Chris Hani Baragwanath Hospital for the release
of the body for burial.
[7]
Sergeant Seloane testified that on hearing about the stabbing of the
deceased in January
2018, he opened a case of murder. Nolufefe had
indicated that there were eye witnesses where the stabbing incident
had taken place.
This place was at 102 N[....] Park.
[8]
Sergeant Seloane testified that he, and his partner, Warrant Officer
Mokgawa then
proceeded to 102 N[....] Park with Nolufefe.
[9]
At 102 N[....] Park, Nolufefe pointed out the owner of the place,
colloquially known
as the tavern. Sergeant Seloane described the
owner of the tavern as a 58 year old lady and could not remember her
name but had
the name of the daughter which he stated was contained
in his statement. This daughter’s name is Thuliswa Mbovane.
[10]
Sergeant Seloane testified that the owner of the Tavern who was later
identified as Nomxolisi
Mbovane, told him that she was present when
the incident of the stabbing of the deceased took place. Of relevance
to these proceedings,
Nomxolisi Mbovane indicated that two gentlemen
had an argument outside the tavern. She was unable to indicate what
the argument
was about. Plaintiff was the third gentleman. During the
argument an Okapi fell to the ground. Nomxolisi Mbovane told Segeant
Seloane
that she tried to retrieve the knife but was unable to
because the Plaintiff had picked it up and handed it to Cebisile who
then
used it to stab the deceased.
[11]
Thulusile Mbovane, referred to at times as Thuliswa, when questioned
at the tavern, repeated
what her mother Nomxolisi Mbovane had stated.
Thulusile also indicated that she knew the two suspects and knows
where the Plaintiff
stays but not Cebisile. Sergeant Seolane then
requested Thulusile to take him to Plaintiff’s residence but
before leaving
asked Nomxolisi Mbovane whether she could make a
statement detailing what she had witnessed during the incident of the
stabbing
in January 2018. She indicated that she would do so the
following day which was 24 April 2018. It is common cause that such a
statement
was deposed to by Nomxolisi Mbovane on 24 April 2018.
[12]
Defendant called Constable Mpho Sono to testify. It appeared that the
only reason for calling
Constable Sono to testify was to indicate
that she was responsible for taking down the statement of Nomxolisi
Mbovane. Constable
Sono was not at the scene of the stabbing nor did
she accompany Sergeant Seloane during the arrest of the Plaintiff.
[13]
Defendant’s case was closed after the testimony of Constable
Mpho Sono.
[14]
Plaintiff was called to testify as well as a certain Kholekile
Magqagqana.
[15]
The Plaintiff is approximately 36 years old and indicated that he is
married with three children,
twins who are 16 years old and the
youngest who is nine years old. He lives with his wife and children
at O[....], N[....] Park.
He works at C[....] City operating a TLB, a
motorised machine, used to load goods on trucks. He completed Grade
7.
[16]
The Plaintiff testified that he was not involved in the stabbing of
the deceased and was in fact
in the tavern at the time of the
stabbing. Mr Magqagqana corroborated this part of Plaintiff’s
evidence, namely, that he
and the Plaintiff were in the tavern at the
time of the stabbing of the deceased.
[17]
Plaintiff’s version of events, from the time he made contact
with the South African Police
Services [SAPS], differs markedly from
that of the evidence of Sergeant Seloane.
[18]
The Plaintiff testified that the SAPS came to his residence around
20H10 and the reason for saying
this was that the children were
watching the television programme, Generations. At this time he was
drawing water for a bath as
he had just come from work. His house is
a shack and is separated inside by a curtain which separates the room
from the kitchen.
[19]
The Plaintiff testified that the police forced the door open. At this
time he was in the room
readying himself for a bath. The police who
entered the shack were dressed in uniform and were accompanied by a
lady. The children
screamed and as he emerged from the room, he was
pointed by this lady. He identified the lady as being Thuliswa
Mbovane.
[20]
He testified that when, entering, the people did not introduce
themselves as police but they
did indicate that he was being arrested
for murder because he had killed someone. The name of the deceased
was not mentioned.
[21]
On exiting the shack, the Plaintiff noticed that there were two
police vans and a polo motor
vehicle. He was taken to the polo motor
vehicle. He testified that he was not told why he was being taken to
the polo motor vehicle
but in the motor vehicle, he was told he was
to take the police to Cebisile’s house. On the way to
Cebisile’s house,
he was assaulted in the polo motor vehicle.
He stated that he was assaulted all the way to Cebisile’s house
and it was the
police officer in front of him that assaulted him. The
issue of his assault is dealt with later in this judgment.
[22]
He testified that they were not able to find Cebisile on that evening
and he was taken to the
police station where they arrived at around
about 21H20.
[23]
At the police station they produced his identity document and they
took a statement. He was not
given time to call his sister although
he requested same. He stated that the details of the murder incident
were never told him.
[24]
The Plaintiff testified as to the inhumane conditions he experienced
and was subjected to after
having been placed in the cells.
[25]
Plaintiff testified that he was not involved in the stabbing of the
deceased nor did he provide
the Okapi knife to Cebisile to stab the
deceased. He also testified that at the time of the incident he was
in the tavern and that
Thuliswa, who pointed him out, was with him in
the tavern during the stabbing of the deceased. He stated that
Thuliswa heard from
her mother about the incident and did not observe
the incident herself.
[26]
The Plaintiff then called Mr Kholekile Magqagqana to testify. Mr
Magqagqana testified, in a nutshell,
that he was with the Plaintiff
during the incident at 102 N[....] Park and that when the stabbing
took place the Plaintiff as well
as Thuliswa were in the tavern.
EVALUATION AND
ANALYSIS OF THE EVIDENCE
[27]
As stated above the evidence of Sergeant Seloane differed markedly
from the Plaintiff regarding
the circumstances of his arrest and can
be regarded as diametrically opposite. In these circumstances the
Court must then depend
on the credibility of the witnesses to
determine which evidence must be relied upon
[1]
.
[28]
I was impressed with the demeanour of Sergeant Seloane during his
testimony. His testimony was
clear as to the circumstances of the
arrest and his engagement with the Plaintiff. The Plaintiff, on the
other hand did not impress
me. He only conceded to facts after been
shown that his testimony could not be true when shown a document that
he had signed. The
testimony of importance in evaluating the
Plaintiff’s credibility, in my view, is the issue of his
assault by police officers.
This issue was never canvassed in the
letter to Defendant nor in his initial pleading and subsequent
amendment.
[28]
Against the backdrop of the abovementioned testimony the test for
justification of an arrest
in circumstances under
Section 40
(1) (b)
has been clearly stated by our Courts
[2]
:
“
As
was held in Duncan v Minister of Law and Order
(1986 (2) SA 805
(a)
at 818G-H), the jurisdictional facts for a s 40(1)(b) defence are
that (i) the arrestor must be a peace officer; (ii) the arrestor
must
entertain suspicion; (iii) the suspicion must be that the suspect
(the arrestee) committed an offence referred to in Schedule
1; and
(iv) the suspicion must rest on reasonable grounds.”
[29]
In the circumstances of this case the Defendant, in my view has
proven the first jurisdictional
fact, namely that the arrestor was a
peace officer. It is the rest of the jurisdictional facts which need
careful attention and
evaluation.
[30]
Sergeant Seloane on behalf of the Defendant testified that he was
told by the owner of the tavern
at N[....] street and the daughter of
the owner, namely, Thuliswa Mbovane, that the Plaintiff was present
at the scene of the stabbing
and that the Plaintiff was the person
that picked up the fallen Okapi knife and handed it to Cebisile who
used it to stab the deceased.
Sergeant Seloane further testified that
Thuliswa informed him that she could identify the Plaintiff and was
taken to the Plaintiff’s
shack where she pointed out the
Plaintiff.
[31]
It was after the pointing out of the Plaintiff by Thuliswa that the
Plaintiff was arrested.
[32]
The question to be posed is whether the information provided by
Thuliswa and the owner of the
tavern to Sergeant Seloane can be
regarded as admissible evidence where they have not testified. In my
view, whilst the testimony
of Sergeant Seloane regarding his
engagement with the owner and Thuliswa at the tavern can be regarded
as hearsay, and therefore
inadmissible, the pointing out of the
Plaintiff by Thuliswa at Plaintiff’s residence cannot be said
to be hearsay evidence
as it happened in his presence and is
corroborated by the Plaintiff in his testimony.
[33]
The critical time as set out in the Sekhoko case is at the time of
arrest and whether at such
time, the arrestor had a reasonable
suspicion that a crime set out in schedule 1 had been committed.
Based on the analysis above
regarding the pointing out of the
Plaintiff at his residence, I am of the view that the Plaintiff was
arrested in circumstances
where it can be said that a reasonable
suspicion arose that he had committed a Schedule 1 Offence, namely,
murder.
[34]
In the result and on a conspectus of the evidence placed before this
Court, the Defendant has
discharged the
onus
of justifying the
arrest of the Plaintiff without a warrant in terms of
Section 40
(1)
(b) of the
Criminal Procedure Act 51 of 1977
, as amended.
[35]
Having come to the above conclusion, it follows in my view that the
detention of the Plaintiff
in the circumstances of this case was also
lawful.
Costs
[36]
Plaintiff’s Counsel argued that the employment of two Counsel
in this matter was warranted,
inter alia
, because
constitutional issues were raised. In my view, the mere raising of a
constitutional issue does not necessarily justify
the employment of
two Counsel as it would also depend on the complexity of the matter.
To mind, this matter does not fall within
the realm of complex
matters.
[37]
It is trite, furthermore that the Court has a discretion in matters
of costs and such discretion
must be exercised judiciously. In the
result and exercising my discretion, I am of the view that costs
should follow the result
and that such costs should only include the
employment of one Counsel.
[38]
Accordingly the Plaintiff’s claims for damages for Claim A,
unlawful arrest and Claim B
unlawful detention is dismissed with
costs, such costs to include the employment of one Counsel.
G. Ally
ACTING JUDGE OF THE
HIGH COURT
GAUTENG DIVISION OF
THE HIGH COURT, JOHANNESBURG
Delivered: This judgement
was prepared and authored by the Judge whose name is reflected and is
handed down electronically by circulation
to the Parties/their legal
representatives by email and by uploading it to the electronic file
of this matter on CaseLines. The
date for hand-down is deemed to be
17 May 2021.
Date of Hearing:
5 August 2020
Date of Judgment:
13 May 2021
APPEARANCES:
Plaintiff
:
Adv. S. I. Vobi
with
him
Adv. Msomi
Mtumtum
Inc Attorneys
Office
No. 106, First Floor
83
Albertina Sisulu Street
Works
@ Market Building
Johannesburg
info@mtumtumincattorneys.co.za
Defendant
:
Adv.
L. Liphoto
with her
Adv.
Nteso
State
Attorney
10
th
Floor, North State Building
95
Market Street, cnr Kruis Street
Johannesburg
BNkoana@justice.gov.za
[1]
Stellenbosch
Famer’s Winery & Ano v Martell Cie SA & Others 2002
SCA @ para 5
[2]
Minister
of Safety & Security v Sekhoto
2011 (5) SA 367
(SCA) at 373 para
6