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[2011] ZAGPPHC 96
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Beka v Minister of Safety and Security and Another (33324/2007) [2011] ZAGPPHC 96 (20 May 2011)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG, PRETORIA)
CASE
NO 33324/2007
DATE:20/05/2011
LINDA
ISRAEL
BEKA
................................................................................................
PLAINTIFF
AND
THE
MINISTER OF SAFETY AND
SECURITY
.......................................
FIRST
DEFENDANT
INSPECTOR
TINYIKO CHAUKE
.......................................................
SECOND DEFENDANT
JUDGMENT
PHATUDI
J
[1]
The plaintiff instituted this action against the defendant for
damages he sustained as a result of the defendants arrest and
detention without a warrant. The plaintiff further claim damages
occasioned by second defendant and other Police Officers who
assaulted him.
[2]
At the commencement of the trial, the defendants abandoned their
special plea. The defendants concede that the onus is on them
to
proof that arrest was lawful. They further concede that they have a
duty to begin.
[3]
Tinyiko Rekson Chauke (Chauke) testifies in Tsonga. Ms July Sithole,
duly sworn-in interpreter, interpreted to English. He is
a warrant
officer and investigating officer attached to Saselamani Police
Station. He is assigned to investigate an offence of
murder,
attempted murder and rape under case number CAS 29/08/2004. He hands
in the entire police docket as exhibit. I marked it
"A".
[4]
He testifies that on 11 August 2004, he received a call to attend to
the case of murder committed near Shikundaville next to
Punda Maria
Road. On his arrival at the scene, he found the body of a person
lying near a Toyota Hi-Lux (LDV) with registration
number DKG 414 N.
He noted gun shot wounds on the body of this person. He found that
the person had already passed on.
[5]
He later learned that the deceased was one Paul Ramudluli. He
arranged for a photographer and for the body to be taken to the
mortuary. The photos compiled are not clearly visible. He further
learned that another victim has been taken to the hospital. He
proceeded to the hospital where he consulted with the victim by the
name of Josephine Mabaso (Josephine). Josephine made a statement
1
which he reduced to writing. He, subsequent thereto, went to the
following people and obtained statements by:
(I)
Vaidah Mabaso - marked A4
2
(ii)
Jack Mafumo - marked A5
3
(iii)
Constance Mabaso - marked A6
4
[6]
On the 16 August 2004, he went with Captain VF Ngobeni to Mankweng
Hospital to obtain another statement from Josephine. The
statement is
Marked A7
5
.
He, based on the contents of the statements, formulated a prima facie
case that justified plaintiffs arrest. He further formulated
a
suspicion that the plaintiff is the one who committed the said
offences
6
.
[7]
He testifies under cross-examination that on the 11 August 2004,
Josephine did not mention the name of the perpetrator. She
only
mentioned the name of the perpetrator on the 16 August 2004 during
consultation with Captain Ngobeni. Josephine indicated
that the
plaintiff warned her that he (Plaintiff) would kill her should she
disclose his name. He found the explanation to have
been acceptable
and reasonable. It is on that basis he effected plaintiffs arrest on
the 19 August 2004. He was assisted by other
Police officers
7
.
They went once to the plaintiffs house at about 10h50. They there and
then searched the house for a firearm but to no avail. He
denies
having assaulted the Plaintiff on the day in question.
[8]
He concedes that the plaintiff was arrested in the morning of
Thursday 19 August and only brought him to court on Monday 22
August
2004. He opposed the plaintiffs application to be released on bail.
[9]
The plaintiff, well known in his community as Beka Mhlanga "the
carpenter". He testifies that the second defendant
together with
four (4) other officers arrested him at his house. He co-orporated
and complied with their orders in all respect.
He responded humbly to
their questions. He was taken to the police station. On their
arrival, one warrant officer Khoza told other
officers to release him
on warning. The second defendant refused to release him and told w/o
Khoza that "broerskap" is
not permissible.
[10]
The second defendant enquired from him as to the whereabouts of the
firearm. He was then assaulted at the Police station. Later
during
the day, he was again assaulted at his house in demand of the
firearm. He was again taken to the Police station where he
was
"suffocated" with a sack at room 6. They kept on saying
"bloody F*** terrorist, take out the firearm".
[11]
He concedes that he was in a love relationship with Josephine but
denies being involved in the commission of the offences.
He further
concedes that he underwent military training at Mkhonto we Sizwe (MK)
outside South Africa. He finds no justification
for his arrest. He
testifies that he lost income from a subcontract he signed with Erick
Matchebela.
[12]
He testifies under cross-examination that he was assaulted at the
Police station and at his house when taken there in search
for a
firearm. His face was swollen with no bruises. He further testifies
that the Police refused to take him to a doctor. He was
kept in
custody until taken to court on Monday 22 August 2004.
[13]
When confronted with his statement, he denies knowing what was
written in the statement. He was only told to sign an uncompleted
document. The contents of the statement were not read to him. No
rights were explained to him.
[14]
With regard to the sub-contract, he testifies that he would have been
paid R40, 000.00 on completion. The main contractor would
provide the
materials. All he had to do was to provide labour and skill.
[15]
Matena Erick Matchebela (Matchebela) testifies that he had been
awarded a tender to build RDP houses. He concluded a sub-contract
with the plaintiff. The plaintiff had to erect roofs of the said RDP
houses. He would provide material. Material was not delivered
on
time. By the time the material was delivered, he learned that the
plaintiff was arrested. He would have paid the plaintiff R40,
000.00
per month. The total value of the sub-contract was approximately Rl
000 000.00 (one million rand). The total value of the
tender he
received is approximately R5 000 000.00 (five mollion rand) He would
have paid the plaintiff the said R40, 000.00 per
month with ease. He
handed in a document to prove the value of the tender. The document
was handed in as exhibit B5.
[16]
The second defendant is recalled on allegations of assault. He denies
having assaulted the plaintiff at all. The defence team
objects that
the plaintiff testified on his assault at his house. We played the
record back to ascertain if indeed the plaintiff
did testify of the
assault at his house. I recorded that he was assaulted both at Police
Station and his house during arrest.
[17]
In my evaluation of the evidence, it is clear that the following is
not in dispute.
17.1
Warrant officer Chauke is a peace officer who effected the plaintiffs
arrest and detention.
17.2
The arrest was effected on 19 August 2004
17.3
The second defendant was acting in the course and scope of his
employment with the first defendant.
[18]The
following issues are in dispute.
18.1
Notwithstanding the defendant's admission of the arrest, they contend
that the arrest and detention was lawful and justified
in terms of
section 40 (1) (b) of
Criminal Procedure Act 51 of 1977
on the basis
of second defendant's reasonable suspicion that the plaintiff had
committed the offence.
18.2
The plaintiff had been assaulted by the second defendant.
[19]
No evidence was led by the plaintiff in support of his claim for
legal fees and malicious prosecution. In fact, the director
of public
prosecution (DPP) declined to prosecute. There was no prosecution
conducted against plaintiff. The malicious prosecution
and the claim
for legal fees stand to be dismissed.
[20]
Section 40
(1) (b) of
Criminal Procedure Act provides
that a peace
officer may without a warrant, arrest any person whom he reasonably
suspect of having committed an offence referred
to in Schedule 1,
other than the offence of escaping from lawful custody. In order to
find that arrest was effected lawfully in
terms of
section 40
(1)
(b), the court must consider the following jurisdictional facts.
(i)The arrestor must be a peace officer ;( ii) the arrestor
must
entertain the suspicion ;( iii) the suspicion must be that the
suspect committed an offence referred to in Schedule 1 of Criminal
Procedure Act and (iv) the suspicion must rest on reasonable grounds.
[21]
It is without doubt that the arrestor (W/O Chauke) of the Plaintiff
was (and still is) a peace officer. It is further not disputed
that
the arrestor entertained a suspicion based on Josephine's statement.
The question to be determined is whether the suspicion
rest on
reasonable grounds considering the evidence tendered.
[22]
Josephine's statements are not in dispute. It is further common cause
that the Plaintiff and Josephine had intimate relationship.
Josephine
is one of the victims. She was with the deceased on the day and time
when the offences were committed. Josephine states
that the
perpetrator raped her before fleeing.
[23]
The second defendant obtained the statement from her on the 11 August
with no names of the perpetrator. Another statement obtained
on the
16 August, with which the plaintiffs name is mentioned as the
perpetrator. The second defendant testified that Josephine
indicated
to him that she withheld the name of the perpetrator in fear of her
life. It is not clear from Josephine's statements
and the second
defendant's evidence as to when were such threats advanced. It must
be remembered that Josephine knew the Plaintiff.
She alleges to have
been raped at the scene by the plaintiff. One can easily infer, as I
do, that the plaintiff may have uttered
the said threatening words
during the commission of the offence, (most probably during rape).
[24]
The second defendant alleges to have established the suspicion that
the plaintiff did commit the offences. In Louw v the Minister
of
Safety and Security
2006 (2) SACR 178
(T), Bertelsmann J is 'of the
view that the time has arrived to state as a matter of Law that, even
if a crime which is listed
in Schedule 1 of cpa 51 of 1977 has
allegedly been committed, and even if the arresting peace officers
believes on reasonable grounds
that such a crime has indeed been
committed, this in itself does not justify an arrest forthwith'. He
further held that 'if there
is no reasonable apprehension that the
suspect will abscond, or fail to appear in court if a warrant is
first obtained for his
or her arrest.... then its constitutionally
untenable to exercise the power to arrest". Harms DP in Minister
of Safety and
Security v Sekhoto 2011(1) SACR 315 SCA refers this as
"the fifth jurisdiction fact" which would be a valid
requirement
for arrest under all paragraphs of section 40(1) of
Criminal Procedure Act.
[25
]
Harms DP further set out that "this requires that the facts on
which the defence is based must be set out." He further
thereto
states that "it would at least be necessary to allege and prove
that the arrestor appreciated that he had a discretion
whether to
arrest without a warrant as not; that he considered and applied that
discretion; that he considered other means of bringing
the suspect
before court; that he investigated explanations offered by the
suspect; and that there were grounds for infringing
upon the
constitutional rights because the suspect presented a danger to
society, might have absconded, could have harmed himself
or others,
or was not able and keen to disprove the allegations.. ."
[26]
The question to be considered here is whether the second defendant
considered and applied his discretion in establishing a
reasonable
suspicion. The second defendant testified that he formulated a
suspicion that the plaintiff is the suspect because Josephine
and the
plaintiff knew each other from their intimate relationship. He
thought that Josephine would not be telling a lie.
[27]
The other question to consider is whether the second defendant
considered other means of bringing the suspect before court.
The
Plaintiff testified that one W/O Khoza was inclined to release him on
"warning" [or summons] to appear to court on
specific day.
The second defendant refused to adhere to such opinion from his
colleague by uttering the words 'no broerskap allowed".
It is
clear that second defendant had already taken a decision to keep the
plaintiff in custody without considering other means
of bringing
suspect to court.
[28]
Did the second defendant investigate explanation offered by the
suspect? Both the plaintiff and second defendant testified
that the
plaintiff corporated with the Police. He responded humbly to all
questions posed to him. The second defendant conceded
thereto. He
even testified that the words written in the "bail form"
that Plaintiff did not corporate were misplaced.
[29]
He, however, failed to accept the plaintiffs explanation. He failed
to investigate the explanation the plaintiff offered. This
is clear
that the plaintiff did not present a danger to the society. I find
the second defendant's explanation that the plaintiff,
as an MK
veteran, presented a danger to the society as being misplaced. I find
no evidence that the plaintiff would have absconded
or harmed himself
or was not able and keen to disprove the allegations. The suspicion
was not sufficiently reasonable at the time
of arrest.
[30]
The Plaintiff testified that he was assaulted at room 6 (six) of
Sesalemani Police Station. He was further assaulted at his
house.
Considering that he was arrested on Thursday morning of 19 August
2004 and only brought to court on Monday 22 August, I
infer that the
Plaintiff was indeed assaulted. He was kept in custody for the
weekend to conceal his swollen face to the public
and in particular,
the presiding officer. I find no reason why the plaintiff was not
brought to court on Friday 20 of August other
than to conceal the
swollen body and face of the plaintiff. In support thereto, he
reported the matter which was not investigated
to date.
[31
] The Plaintiff had a standing contract to erect roofs of RDP houses
as corroborated by Mr. Matchebela. It is clear that Mr.
Matchebela
had a contract (tender) to build the RDP houses. It is undisputed by
the defence that such a contract existed. The defence
attempted to
dispute the amount to be paid to the Plaintiff. The document B5 blew
on the face of the defence. In fact, they shot
themselves in the foot
by calling for such a document. Had it not be for the detention of
plaintiff, he would have earned R40 000.00
per month as placed on
record by Mr. Matchebela. I find the difference in their testimony on
when would the amount have been paid
(monthly or on completion), as
immaterial.
[32]
I find the Plaintiff to have suffered general damages in respect of
loss of freedom and discomfort. The quantum is not disputed.
I am,
though, of the view that an amount of R150, 000.00 is commensurate to
his claim.
[33]
It is trite law that costs follow the event. The plaintiffs successes
dictate his entitlement to costs. I thus make the following
order.
THE
FIRST AND SECOND DEFENDANTS ARE JOINTLY AND SEVERALLY, THE ONE PAYING
THE OTHER TO BE ABSOLVED:
CLAIM
A:
1.
ORDERED TO PAY THE PLAINTIFF THE SUM OF Rl, 110,000.00
2.
INTEREST ON THE SAID SUM OF R30000.00 AT THE RATE OF 15, 5 PERCENT
PER ANNUM FROM THE 14th DAY OF THIS DATE TO DATE OF PAYMENT
C
CLAIM B
3.
ORDERED TO PAY THE PLAINTIFF THE SUM OF R30, 000.00
4.
INTEREST ON THE SAID SUM OF R 30000.00 AT A RATE OF 15.5 PERCENT PER
ANNUM FROM THE 14th DAY OF THIS DATE TO DATE OF PAYMENT
5.
ORDERED TO PAY THE PLAINTIFF'S COSTS OF SUIT
AML
PHATUDI
JUDGE
OF THE HIGH-COURT
Heard
on: 08 March 2011
For
the Plaintiff: Adv MA CHAUKE
For
the Defendants: Adv AT NCONGWANE
Date
of Judgment: 20 May 2011
1
Statement at page 4 to 6 of Exhibit A. it is a handwritten statement
with no typed version.
2
Page 9 of exhibit A
3
Page 12 of exhibit A
4
Page 14 of exhibit A
5
Page 16 of exhibit A. I required second Defendant to read the entire
statement of Josephine on record as there is no typed version.
6
Murder, attempted murder and rape.
7
Warrant officer Khoza. wife of Ngobeni. wife of MT Micheal and
Mafuleke.