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[2010] ZAGPPHC 237
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Makgothokgo v Minister of Safety & Security (40572/2005) [2010] ZAGPPHC 237 (9 December 2010)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORHT
GAUTENG
COURT,
PRETORIA)
CASE
NR: 40572/2005
DATE:09/12/2010
In
the matter between:
ZACHARIA
MAKGOTHOKGO
…......................................................................................
PLAINTIFF
vs
THE
MINISTER OF SAFETY & SECURITY
…...............................................................
DEFENDANT
JUDGMENT
Ranchod
J,
[1]
The Plaintiff claims damages from the Defendant for wrongful arrest
and detention. It is common cause that Plaintiff was arrested
on 17
April, 2003 and was released on bail on 29 May, 2003. The arrest took
place at Middelwater, Sebhukubye, Sekgosese, Limpopo.
Plaintiff was
charged in connection with the killing of the late William Boy
Seshoka who had been gunned down by one of three unknown
men who had
accosted him after he had closed his shop the night of 7 February,
2003. The deceased's wife was with him at the time.
She had given a
description of the person who shot her husband. Plaintiff was
thereafter arrested. Charges against him in relation
to the killing
of the deceased were withdrawn on 12 September. 2005. It is to be
noted that the plaintiff's continued detention
until his release on
bail was as a result of him initially being refused bail.
[2]
The issue to be decided is whether the arrest and detention of the
plaintiff was unlawful.
[3]
It is common cause or not in dispute that the police officers
effecting the arrest of the plaintiff were acting in the course
and
scope of their employment with the defendant.
[4]
The defendant called Captain Andrew Makgopa to testify. He said that
on arrival at the scene of the incident, he found the deceased's
wife
who gave a description of the perpetrators. She told him that the
person who shot at the deceased was short with a big stomach
or
belly. He was wearing jeans and a white t-shirt. He was dark in
complexion and was almost her height. The other two were taller
and
slender than the one who shot at the deceased. All the three men were
probably above 50 years of age. Thereafter he received
about eight
calls from informers who did not want to disclose their identity.
However, three of them mentioned the name of the
Plaintiff as the one
who shot at the deceased. Eventually, one person by the name of Peter
Mohale came forward and made a statement
to the effect that he was in
the vicinity of the "Korporasie" where deceased's shop was
when the incident took place.
Peter Mohale told Makgopa that the
Plaintiff and the two other men passed him while he was standing with
his girlfriend and that
shortly thereafter they heard a gunshot and
saw the three men running away from the side of "Korporasie".
Peter Mohale
knew the Plantiff very well. He not only described
plaintiff as did the deceased's widow but he also gave plaintiff's
name as Zacharia
Makgothokgo. Peter Mhohales statement is in dispute.
1 will refer to that aspect presently.
[5]
Inspector Makgopa testified that on the strength of the information
and the description given by the deceased's wife and Peter
Mohale, he
arrested the Plaintiff to conduct further investigations. When the
Plaintiff was arrested he is alleged to have implicated
a certain
school principal at the local school who was subsequently released
because he was not positively identified at an identification
parade
that was held where the plaintiff was identified by the deceased's
widow.
[6]
The next witness for the defence was the deceased's widow Ms Makwela
Elisa Ratshivhunga. She testified that the deceased had
just locked
their shop and they were proceeding toward their house which is
situated in the same yard as the "koporasie".
There was
enough light and visibility so good that one could see a five cent
coin on the ground. She said three men emerged from
the side of their
house and were approaching them. She was able to identify the
Plaintiff at the identification parade because
she had seen him
dearly on the day of the incident. She also identified him in court.
She denied having seen or known the Plaintiff
before this incident,
which was disputed by Plaintiff when he testified.
[7]
Both these witnesses made a good impression on the court, as being
truthful insofar as the events of the night of the deceased's
death
is concerned. Mrs Ratshivhunga confirmed Captain Makgopa's evidence
as to the description she gave of the person who shot
her husband.
[8]
Plaintiff himself testified in his own case. Plaintiff testified that
he was a well-know businessman who ran several businesses.
He was the
chairperson of the local school's "school-governing-body"
at the time. He gave an alibi to the effect that
he was at home on
the night of the incident busy preparing for his wife's stockvel the
following day. He was arrested under the
guise that one of his
clients (plaintiff also practiced as an herbalist) who was in
detention wanted to see him for the purpose
of getting treatment.
After his arrest, he was kicked and assaulted by the other detainees
but he did not open a case against them.
[9]
Mr Hendrik Lodewyk du Toit testified on behalf of the plaintiff. He
was requested by the Plaintiff's attorney to examine the
handwriting
on two statements, exhibits "A" and "B", in order
to establish whether they were written by one
and the same person or
not. He was to compare the disputed signature of Peter Mohale on
exhibit "A" with the handwriting
on exhibit "A"
and
"B"
in
order to establish whether they were all written by one and the same
person or not. He said after the examination, comparison
and
evaluation of all the facts, he concluded that the disputed signature
of Peter Mohale on exhibit "A" and the handwriting
on
exhibit "A" and
"B",
were
in fact
created
(beyond doubt) by one and the same author. The relevant signature is
therefore classified as a forgery.
[10]
Lodewyk testified that he does not regard himself as an expert but as
a specialist. However in the expert notice he is referred
to as an
expert. During cross-examination and in answer to questions by the
court, it transpired that he was selective in his examination
of the
exhibits. Of importance was that, his examination, comparison and the
evaluation focused only those alphabets or letters
on exhibit "A"
and "B" which had strong unique handwriting characteristics
with the signature of Peter Mohale
on exhibit "A".
Moreover, he conceded that there were other letters or alphabets on
exhibit "A" and "B"
which did not have strong
unique handwriting characteristics with the signature of Peter
Mohale. He also said that the word "beyond
doubt" that he
used in his report should not be understood in the context of the
words "beyond doubt' used in a court
of law, in other words that
his use of the words had iesser force. He further stated that the
examination and comparison procedures
were restricted by the fact
that only copies of the documents in disputes were available but
insisted that he could still use the
copies.
[11]
That was the conclusion of the evidence in the case.
I
turn
then to evaluate the evidence primarily regarding the arrest and
detention of plaintiff. I should mention that evidence on
the merits
and on quantum of plaintiff's claim were led by plaintiff's legal
representative in a somewhat mixed fashion. What I
also should
mention for present purposes is that plaintiff made a pathetic figure
in the witness stand. He repeatedly contradicted
himself under
cross-examination regarding his earnings from his several businesses
and educational qualification and the marks
he earned in high school.
However, these aspects related to the quantum of his damages and in
view of the conclusion I have arrived
at on the merits of the claim I
need not given them any further consideration.
[12]
The important issue here is the reasonableness of the suspicion
formed by Captain Makgoba which led him to arrest the Plaintiff,
in
this regard he testified that his and the plaintiff's families were
related to each other. It was not suggested in any way that
he had a
motive to falsely implicate and therefore arrest the plaintiff.
[13]
Section 40(1)(b) of the Criminal Procedure Act 51 of 1977 (the Act)
authorises a peace officer to arrest, without warrant,
any person
whom he reasonably suspects of having committed on offence referred
to in Schedule 1 of the Act. Schedule 1 includes
the offences of
murder and culpable homicide. Furthermore, what is required is a
reasonable suspicion.
[14]
It is trite that the Defendant bears the onus of proving, on a
balance of probabilities, that the arrest and detention was
lawful.
The issue of the reasonableness of the suspicion is to be determined
objectively. The circumstances giving rise to the
suspicion must be
such as would ordinarily move a reasonable person to form a suspicion
that the suspect has committed an offence
referred to in Schedule 1.
(see
R v Van Heerden 1958(3) SA 150(T) at 152).
In
Duncan
v Minister of Law and Order 1984(3) SA 460(T) at 465 H-l
it
was held that a reasonable suspicion connotes an absence of certainty
and adequate proof. Van Dijkorst J referred to the
English
case of
Shaaban
Bin Hussein and Others v Chong Fook Kam and Another[1969] 3 Ail ER at
1630 where
it
was held:
"Suspicion
in its ordinary meaning is a state of conjecture or surmise where
proof is lacking;
7
suspect
but I cannot prove". Suspicion arises at or near the starting
point of an investigation of which the obtaining of prima
facie proof
is the end".
Van
Dykhorst J then went on to say:
"The
grounds for suspicion are not limited to facts which can be proved in
court. Surely the statement of a wife that her husband
is a widely
sought notorious bank robber and that his loot is hidden in the attic
would give rise to a reasonable suspicion despite
the fact that the
wife cannot be called as a witness for the prosecution against him.
...A
reasonable
suspicion may be
confirmed
by an identification parade at which the
arrested
suspect is positively identified and a prima facie case may thus be
born, or the hopes of the police may be dashed by a negative
result
and the suspect released (emphasis added)."
[15]
In this case before me that is almost exactly what happened. Even if
I were to disregard Makgopa's evidence about the information
provided
by the informers as being hearsay and that of Peter Mohale's
signature as being a forgery (as argued by Plaintiff's legal
representative - and
I
make
no finding on that) it seems to me that the information and
description of the perpetrator provided by the deceased's widow
was
sufficient for him to form a reasonable suspicion. Makgoba's decision
on those grounds alone were in my view
reasonable
and justified. It is important to note that after he was arrested,
plaintiff was also identified at an identification
parade by the
widow.
[16]
I am therefore of the view that the arrest and detention of the
plaintiff was lawful in the circumstances.
[17]
I make the following order:
"Plaintiff's
claim is dismissed with costs.
N
R
ANCHO
D
J
UDGE
OF THE
NORTH
GAUTE
NG
HIGH COURT
Representation
for the applicant:
Counsel:
E Smit
Instructed
by Attorneys: Messrs Smit & Maree Attorneys, Pretoria
Representation
for the respondent:
Counsel:
M.I. Thabede
Instructed
by Attorneys:
The
State Attorney, Pretoria