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[2012] ZAECPEHC 6
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Qunta v Minister of Police (2001/10) [2012] ZAECPEHC 6 (10 January 2012)
NOT REPORTABLE
IN THE HIGH COURT OF SOUTH
AFRICA
(EASTERN CAPE DIVISION, PORT
ELIZABETH)
CASE NO: 2001/10
IN THE MATTER BETWEEN:
WYCLIFF ZOLA QUNTA
…................................................................................................
PLAINTIFF
VERSUS
MINISTER OF POLICE
….................................................................................................
DEPENDENT
Coram: Pillay J
Date Heard: 4 May 2011
Date Delivered: 10 January
2011
Summary: Claim for damages -
Arrest and detention - Unlawful arrest and detention - Arrest and
detention admitted -Defendant invoking
Section 40 (1) (b) of criminal
Procedure Act 51 of 1977.
Once arrest is admittedOnus
to prove justification in terms of Section 40 (1) (b) of Act is on
defendant to prove arrest was lawful
- Defendant is required to
establish that the arrestor bad formed suspicion based upon
reasonable grounds.
Necessary opinion - Based on
plaintiffs conduct prior to arrest and allegations of theft by
complainant
Allegations in statement of
the complainant incorrect -Circumstances leading to forming opinion
should not be clouded by that
- Prevailing circumstances must be
examined to determine whether reasonable grounds existed for
suspicion of not.
Arrester holding reasonable
suspicion - Reasonable grounds did exist to form opinion -Defendant
established jurisdictual facts
required to invoke Section 40 (1) (b)
of the Act - Claim dismissed.
JUDGMENT
PILLAY,
J:
[1] The
plaintiff sued the defendant for damages arising out of an alleged
unlawful and wrongful arrest and detention. In the
alternative,
plaintiff claimed that the arrest (and detention) was malicious and
without probable cause. The aforesaid
anest
and
detention were effected by a member of the South African Police
Services (
£
SAPS
7
)
and was in the employ of the Department of Safety and Security of
which the defendant
is
the
ministerial head.
[2] It will be seen that the
defendant is cited as the 'Minster of Police'. This is the title
which used to be accorded to the
minister for that portfolio until
the name of the department was changed to the Department of Law and
Order and then to the Department
of Safety and Security. The
defendant ought to have been cited as the Minister of Safety and
Security. No issue in regard thereto
was however raised by the
dsfendaiit
and
1 will not regard it as one. It seems that all the formalities have
nonetheless been complied with.
[3] The plaintiff was resident
at 218 Connacher Street, New Brighton, Port Elizabeth. He stayed
there for a relatively long period
together with his mother and
brother, Mziwakhe Winston Dlabantu. After his mother died, plaintiff
and his brother hosted their
cousin, Whitcliff Ndudela, who was
later joined by his girlfriend, Lindelwa Yako, Plaintiffs
girlfriend, Ethel Kutwana would
stay
there with him from
time to time together with his son.
[4] Mziwakhe ('the deceased')
passed on arid had made, arrangements for the disposal of his estate
by way of a will which he completed
at the offices of Santam
Insurance, a copy of which he produced while testifying.
[5] It is common cause that the
deceased bequeathed the whole of his estate to the plaintiff. This
instruction was qualified with
the following:
"failing the last
mentioned beneficiary his/her share must devolve upon his/her issue
by representation per stirpes,'
v<
.
[6] ' The qualification is
however, of no moment since the plaintiff inherited the whole
estate, including the house at 218 Connacher
Street, New Brighton,
Port Elizabeth. Similarly it is common cause that the contents of
the house also belonged to the deceased
and consequently also
inherited by the plaintiff. The house was transferred to the
plaintiff in terms of the said will and he
also produced a copy of
the title deed which confirmed that he was indeed the owner thereof,
[7] The use of the appliances
and the associated electricity use gave rise to tension between the
plaintiff on the one hand and
Whitcliff and Lindelwa on the other.
Plaintiff then removed certain appliances and furniture from the
kitchen and stored it in
his bed-roomed. This included the
refrigerator and the microwave oven which he had inherited from his
deceased brother. It is
uncertain whether Whitcliff and/or Lindelwa
were aware of what he had done with the items he removed from the
kitchen.
[8] Shortly thereafter, on
Sunday, 18 April 2010, a little after 7 pm, Inspector Mvula (he was
a constable at the time) arrested
the plaintiff at 218 Connacher
Street, New Brighton.
[9] The plaintiff was then
taken to the New Brighton Police Station. The cells there were full
and he was consequently taken to
Kwazakhele Police Station where he
was detained till Tuesday morning of 20 April 2010. The plaintiff
was charged with theft of,
inter
alia,
the
refrigerator and microwave oven, as well as what was described as
domestic violence. He was released before appearing in court,
on the
20 April 2010.
[10] The plaintiff, testified
that on the night of his arrest he was. in bed when there was a
knock at the kitchen door, Whitcliff
opened it. Mvula and another
person then entered the house. After being told that he was being
arrested, the plaintiff was handcuffed
by Mvula and taken out.
[U] He explained that at the
locked gate his one arm was released from the handcuff in order to
allow him to unlock the gate.
Outside in the street, he noticed,
inter alia,
Lindelwa
Yako and one Andiswa Ntsaluba in the vicinity of the police motor
vehicle.
[12] He testified that prior to
18 April 2010, he had been brought before the magistrate's court to
deal with a claim against
the estate of his late brother. He
proceeded to explain that Andiswa had claimed that she was entitled
to inherit the whole of
the estate, including the house, on the
basis that she was the deceased's daughter. It is not clear how this
was resolved, if
at all, but there is no evidence that Andiswa was
declared either the deceased's daughter or a beneficiary. On the
contrary,
it seems that the will of the deceased was executed and
plaintiff was declared the sole beneficiary and indeed, inherited
the
property of his late brother.
[13] It is also common cause,
that Andiswa laid a charge against the plaintiff at the New Brighton
Police Station on 16 April
2010. The basis for the charges was that
he had removed certain appliances from the house which he had no
right to do because
she was the owner thereof by virtue of having
inherited this from her father, the deceased. A charge of theft was
proffered against
the plaintiff in relation to these appliances and
other things also
listed
as
stolen
property. A second
charge relating to domestic violence was also included on the charge
sheet.
[14] As it turns out, Andiswa's
claim that, she was a beneficiary in the deceased's estate was, at
best for her, an incorrect
belief. The plaintiff was in fact the
sole beneficiary of the whole of the deceased's estate.
[15] The plaintiff testified
that at the time of his arrest, he was told by the arresting officer
to get dressed as he was being
arrested. He stated that when he
asked why he was being arrested, he was told that he would be
informed at the police station.
He also testified that he was
unlawfully taken to the New Brighton Police Station, but as there
was no place for him there, he
was taken to the Kwazakhele Police
Station. There he was held in a cell together with twelve other
people. The cell had a pungent
odour which affected him. The cell
was full and he had to squeeze in between others when he had to find
a place to lie down.
He was provided with a sponge mattress.
[16] During the following day,
he and others who were not taken to court on that day were moved to
another cell. This one was
less uncomfortable but the blankets and
the sponge mattress issued to him smelt of stale urine.
[17] On Tuesday the 20 April he
met Mvula while his property which had been handed in when he was
detained was being returned
to him. He testified that Mvula asked
him if he knew about the stolen property and showed him a list of
the alleged
stolen,
items. The list
reflected items such as a refrigerator, a microwave oven and so
forth. He said that he told Mvula that he did
not know about the
theft and that he had put those items in his bedroom. Mvula did not
say anything! He testified that this was
the
first
time he had heard
about the alleged theft and the possible reasons for his arrest and
detention.
[18] He explained that
throughout his period of custody, he was scared - having heard of
incidents between inmates which resulted
in serious injury and even
death,
[19] Shortly thereafter, he was
taken to the New Brighton Police Station where he was told by
another policeman that he was being
released as the charges against
him had been withdrawn. He went home feeling relieved and happy.
[20] He also testified that on
the afternoon of Saturday, 17
April
2010 he was washing
clothes in the yard outside Ms home when a policeman approached him
enquiring about Andiswa. He told the policeman
that there was no
person by that name staying there. The policeman did not say
anything more and left- As it turns out, the policeman
was Mvula. He
denied that Mvula had enquired after him or anyone else.
[21] He denied that he had
prevented the police from looking into his bedroom or that Andiswa
had showed the police where the
microwave oven and the refrigerator
had been placed in the kitchen. He also denied that he did not
answer Mvula about where the
ii^ms
were as he was never
asked about them while in the house.
[22] He contended that his
arrest and subsequent detention was wrongful and unlawful.
[23] Ethel Kutwana testified on
behalf of the plaintiff. She confirmed that she was his girlfriend
and on the evening of 18 April
2010, she was with him at 218
Connacher Street, New Brighton, Port Elizabeth. At about 8 pm there
was a knock on the kitchen
door and one Kumbuzo, plaintiffs
relative, allowed, the police in. She testified that plaintiff was
then told by one of them
that he was being arrested and the reasons
for the arrest would be explained to him at court. It is not clear
who Khumbuzo is
and nothing more was said about a person by that
name.
[24] The group went outside and
she then saw Andiswa, amongst others outside. She took some clothing
and cigarettes to the plaintiff
when he was already in the police
vehicle. At that time, she noticed Andiswa signing a document(s).
The plaintiff was then taken
away.
[25] The plaintiff then closed
his case.
[26] The defendant called
Inspector Mvula to testify.
[27] He explained that he was
stationed at the New Brighton Police Station at the time. During the
morning, of 17 April 2010,
he was instructed to. investigate a
complaint of theft. He was handed the police docket by the commander
of the police station.
After examining the contents of the
docket
he later proceeded
to 218 Connacher Street, New Brighton. There he found a man washing
clothes in the yard and enquired after
the plaintiff, as referred to
in the complainant's statement which was in the docket - Zola Quta.
He was told that no one by
that name was there. He left the house
and was finally able to contact Andiswa, the complainant, the next
day.
[28] Andiswa then accompanied
Mvula to 218 Connacher Street, New Brighton, with her. uncle, Booi,
who she suggested should accompany
them to calm the plaintiff, if
need be.
[29] Upon reaching the house
they found the front gate locked. Mvula said that Booi then jumped
over the locked gate and knocked
on the front door. The plaintiff
opened and appeared angered. He questioned the right of anyone to
jump over the gate and enter
the property. Andiswa pointed him out
as the person who allegedly stole the items in question.
[30] Mvula testified that he
reminded the plaintiff that he had confronted him the previous day.
There was no response from the
plaintiff.
[31] The gate was then opened
and all of them went into the house. Inside the house, Andiswa
pointed out where the refrigerator
and the microwave oven used to be
in the kitchen. Mvula stated that he then asked the plaintiff about
the items on the list he
had, explaining that tire allegation was
that he had stolen them. The plaintiff did not respond. Mvula
testified further that
he asked to look around the house but was
prevented by the plaintiff and Ethel from entering and looking into
a room of which
the door was closed. The same two prevented him from
looking into their bedroom. (As it turns out, most of the items
allegedly
stolen were in fact inside his bedroom).
[32] Mvula then arrested the
plaintiff. Mvula confirmed that the plaintiff was detained at
KwaZakhele
folice
Station till the
morning of 20 April 2010 when the charges were withdrawn and the
plaintiff was released.
[33] Mvula further testified
that the plaintiffs conduct on 17 April when denying his identity
and his further conduct during
the period immediately prior to his
arrest on 18 April, after being pointed out, his conduct in
preventing or obstructing a house
inspection which was brought about
by the allegations contained in the complainant's statement and his
failure to respond to
material questions, all strengthened the
allegations in the complainant's statement. He consequently formed a
view that an offence
listed in schedule 1 of the Criminal Procedure
Act 51 of 1977 ('the Act') had been committed by the plaintiff and
he therefore
arrested and detained him.
[34] The
chstxge
relating to domestic
violence was added to the charge sheet at the charge office after
the plaintiffs arrest. Mvula furthermore
did not have domestic
violence in mind when he made the decision to arrest the plaintiff
It follows therefore that the plaintiffs
arrest and subsequent
detention was not as a result of any charge related to domestic
violence. As it was correctly argued, depriving
the owners or
household members of the use of their items' could conceivably
constitute a form of domestic violence, as defined.
In the context
of this claim, the charge concerning domestic violence is of no
moment since it had nothing to do with the decision
to arrest and
detain the plaintiff.
[35] I was informed by Mr Dyer,
on behalf of the plaintiff, that the only issue with regards to the
arrest is whether Mvula had
formed a reasonable suspicion that the
plaintiff had committed an offence listed in schedule 1 of the Act,
[36] The defendant relies on
the powers accorded by section 40 (1) (b) of the Act to justify the
arrest and subsequent detention.
Section 40 (1) (b) of the Act
provides that:
"(1) A peace officer may
without warrant arrest any person -
(a)
(b) whom he reasonably,
suspects of having committed an offence referred to in schedule 1,
other than the offence of escaping
from
lawful
custody."
[37] Mr Dyer argued that the
defendant had failed to discharge the onus of proving justification
because the only information
or 'evidence* Mvula had at the time was
contained in the statement which was insufficient to justify the
arrest. He
s^ga&d
that the allegation
in the statement that theft (and/or domestic violence) had been
committed was not based on direct evidence
and was indeed based on
hearsay, which called for further investigation before the arrest.
The relevant portions of the statement
of complaint by Andiswa reads
as follows;
"I am the biological
daughter ofMXIWAK.HE WINSTON DLABANW who passed away on 29-10-26.
And my father MZIWAKHE WINSTONDLA
BANTU thai was owner of the house
m 218 Connacher Street, New Brighton, PE, My father had a trust at
Sanlam Insurers which shows
beneficiary of the entire estate and
thai states that he was unmarried and had only one child.
But- now my father's brother
ZOLA QVTA is staying in the house he.is not supposed to be in the
house and he removed some of the
property from the house. He took
all the appliances ■ from the house and only left the
built-in-cabinets.
My father's brother ZOLA.
QVTA has no right to remove anything from the property until the
assets of the estate is finalised.
J have a witness LINDELWA
YAKO who stays at 218 Connacher Street who saw ZOLA QVTA take the
stuff 'appliances \
I gave no-one permission to
take the property of my father since I am the only child he has, The
stujf that was in the house before
my uncle took some of it was
written down by Santam Insurers,
The following items I noticed
that is missing is the fridge ±R2D00-00 (Two Thousand Rand)
and microwave ±RI500-00
(Ow Thousand Five Hundred Rand) and
dishes, spoons and pots ±R 1 200-00 (One Thousand Two Hundred
Rand) and ornaments
± R85-00 (Eighty Five Rand) and kitchen
table ±R4O0~O0 (Four Hundred Rand)."
[38] In amplifying his
argument, Mr Dyer, contended that the allegations of theft in the
statement is attributed to Lindelwa Yako
only, and therefore falls
outside the personal knowledge of the complainant and therefore
constitutes hearsay. It called, at
least, for further and proper
investigation prior to the arrest.
[39] A close scrutiny of the
statement in question
clearly
shows that the
complainant claimed ownership of the property alleged to have been
stolen. She also alleges that the items mentioned
in the statement
were taken by the plaintiff without her permission. Her reference to
the documentation at Sanlam Insurers is
merely to serve as support
for her assertion that the property indeed belonged to her by way of
inheritance.
[40] Her reference to Lindelwa
Yako as having seen the plaintiff take the items in question is a
reference to someone who would
support her allegation that the items
were taken by the plaintiff. It is not an assertion that she
(Lindelwa) is the only or
exclusive source of such information or
evidence.
[41] There is nothing in the
statement to suggest that the allegations of the complainant should
be doubted or that it should
not be relied upon for the purpose of
investigation.
[42] It is clear from these
circumstances, that what happened prior to the arrest of the
plaintiff informed on Mvula's
nltknate
suspicion which led
to the arrest of the plaintiff.
[43] It is undisputed that
Mvula was briefed to investigate the complaint laid by Andiswa, It
is common cause that Mvula made
two
visits
to 218 Connacher
Street, New Brighton in the course of his investigations of this
complaint. First on 17 April 2010 when he encountered
the plaintiff
who was washing clothes in the yard. Then on 18 April 2010 when the
arrest m
question
occurred. There are however disputes of fact in regard to what
occurred during the respective visits.
[44] The plaintiff alleges that
Mvula met him on 17 April '2010- and asked him about the whereabouts
of Andiswa and left when
he said there was no such person staying
there. Mvula disputed this and claimed to have asked after the
plaintiff by name as
appeared in the statement.
[45] The plaintiff alleges that
Mvula entered the house on 18 April 2010 through the kitchen door
with one other person despite
the gate being locked. Mvula disputed
this and claimed that he entered with Andiswa and.her uncle Booi
after the
plaintiff
opened the front
door.
[46] It is undisputed that
Andiswa pointed out plaintiff as the person who'allegedly stole the
property. She in fact signed a
document to that effect.
[47] There are further disputes
between the plaintiff and Mvula as to what occurred when they were
inside the house. Both plaintiff
and Ethel state that plaintiff was
just told to get dressed because he was being arrested. He was not
given reasons in regard
thereto. They also denied having prevented
Mvula from inspecting the house. On the other hand, Mvula contends
that he did ask
him about the missing property after Andiswa pointed
out to him where some of them used to be in the kitchen viz: the
refrigerator
and microwave oven. He was also prevented by plaintiff
and Ethel from inspecting two specific rooms in the house.
[48] I am not able to agree
with the criticism levelled at Mvula by Mr Dyer, In my view the
criticism, which I will refer to presently,
do not reflect
dishonesty on Mvula
1
s part. He was criticised for
giving
diff^rmt
versions for
effecting the said arrest and I was then urged to reject his
evidence as untrue on that basis. There was no other
criticism of
Mvula's evidence.
[49] It is also undisputed that
on 18 April 2010 there was no response when Mvula asked plaintiff
why he did not tell him that
he was the person he enquired about on
the 17 April 2010.
[50] The plaintiffs evidence
was not criticized in any significant way. His version was simple.
He was probably comforted, it
seems, by the fact that he was the
owner of the items he allegedly stole. His evidence was supported by
that of Ethel He seemed
a good witness who testified.in a straight
forward manner.
[51] Mvula was also a good
witness and the only criticism levelled against him was that he gave
different
'versions'
for the arrest. This should not be confused with reasons for the
arrest. It is clear that he tendered evidence of various
factors or
reasons for concluding that he should arrest the plaintiff These
reasons cannot be isolated from each other but should
be seen as a
composite number of factors which led him to form a suspicion.
[52] The versions in regard to
the material issues as they occurred between the plaintiff and Mvula
before the
said
anest,
are mutually
destructive,
[53] In a situation where there
are two mutually destructive versions (and there is little to choose
between the two), the party
upon whom the onus of proof rests can
only succeed if the court, on a preponderance of probabilities, is
satisfied that the version
of that party is true and accurate and
therefore acceptable, and that the other version tendered by the
other party is false
or mistaken and should be rejected as such.
[54] The issue of weighing up
the
credibility
of
a witness or whether a version is credible is therefore interwoven
with a consideration of the probabilities and if the probabilities
favours the version of the party bearing the onus, then that
version
will be accepted as
probably true. See:
National
Employers' General Insurance Co Ltd v Jagers
1984
(4)
SA 437
(ECD) at 440 D-G: Koste
r
Ko-operatiewe
LaDdboumaatskappy_BEk
v Suid-Afrikaanse Spoorwee enHawens
1974
(4)
SA
420
(W) at 426 -7.
[55] It is
important,
to remember though,
that the discharge of the onus on a balance of probabilities, is
really satisfying the
court
that the version in
question is the truth and therefore acceptable.
[56] The two versions on the
material issues in this matter are so radically different that it
follows that one of the versions
must be untrue. As referred to
already Mr Dyer argued that Mvula was armed with a statement which
did not include 'solid' evidence
and therefore should not have
arrested the plaintiff, but possibly further investigated the matter
in the light of those doubts
relating to ownership and actual
contrectatio,
referred to by Mr
Dyer.
[57] However on close scrutiny
of the facts, the doubts are indeed created
ex
post facto
in that
the true situation as to ownership and where the items were at the
material time, only came to
light
after the arrest.
What was actually contained in the . statement is a direct
allegation that items were stolen and was the property
of the
deponent by virtue of her inheriting them.
[58] Secondly the impression
that the
allegation,
of the theft of
these items is based on
hearsay
is not actually
correct. As it
stands
in
the statement,
all it states is that Lindelwa Yako is a witness thereto. This does
not mean that Lindelwa is the only witness'.
On the face of the
statement, Andiswa asserts that plaintiff had
stolen
the items and not
that she had been told thereof by Lindelwa.
[59] In any event Section 40
(1) (b) of the Act does not necessarily require
direct
evidence but rather
that the
arresting
officer should hold
a suspicion which should be formed on reasonable grounds.
[60] In adopting this approach,
it is necessary to examine the probabilities in the context of what
generally occurred and what
is either common cause or undisputed,
[61] Mvula went to 218
Cormacher Street, New Brighton on 17 April 2010. At the time he was
in possession of a statement made by
Andiswa. According to the
statement it was the plaintiff who allegedly stole the items.
[62] However the truth, as it
transpired, is that the said property did not
belong
to Andiswa and in
fact, the items were not removed from the house at all. But this
should not muddle the situation.
[63] It is clear from the
statement that Andiswa did not. stay at 218 Connacher Street. It is
improbable then that Mvula had gone
in search of Andiswaat that
address on 17 April 2010. On the other hand, it is more
likely
that he enquired
after the plaintiff who denied that such person stayed there or was
present.
[64] There is the issue of a
differently spelt name, as it appeared in Andiswa's
statement
which could
conceivably have led to a wrong pronunciation of the plaintiffs name
when the enquiry about the plaintiff was made
on 17 April 2010, This
was
not
raised
in argument and indeed, it was never the case or'evidence of the
plaintiff that Mvula enquired after a 'Mr Quta' and hence
he denied
that a Mr Quta resided there or was not there. His version is that
Mvula enquired after Andiswa, Consequently this
is not a decisive
issue and nothing further need be said about it
[65] It is further improbable
that Andiswa did not enter the house immediately prior to plaintiff
being arrested as was contended
by plaintiff. This is so because
Mvula's evidence is that Andiswa pointed out plaintiff and showed
Mvula where the fridge and
microwave oven used to be in the kitchen.
If Andiswa did not enter the house, then she would not have been
able to have done
so. This is further corroborated by the fact that
Mvula did not know the plaintiff. The only way he would have, known
who plaintiff
was, would be is by way of identification by someone
else. This is what Andiswa did. Similarly, he would have known where
in
the kitchen the refrigerator and microwave oven used to be unless
he was showed. This is what Andiswa also did. She had to be in
the
house to do this.
[66] It is also clear that
Mvula was on an investigative visit. As he testified he-would not
necessarily have arrested the plaintiff
had the whereabouts of the
said property been explained to him by the plaintiff. He did not go
to 218 Cormacher Street specifically
to arrest plaintiff.
[67] Being part of the
investigation, it is probable that Mvula indeed attempted to search
certain rooms in the house after being
shown where certain items
used to be in the kitchen. His failure to detect these items cannot
be explained other than that he
was prevented from doing so by
plaintiff and Ethel In his evidence, he also explained that at the
time, plaintiff refused to
answer questions as to the whereabouts of
the items in question.
[68] In my view, factors such
as denying his identity on 17 April 2010; the contents of the
statement upon which is investigation
was based; plaintiffs failure
to respond to Mvula when asked why he denied his identity;
preventing an inspection of the house
and plaintiffs silence upon
enquiry of where the items were, objectively raises a clear
suspicion that plaintiff had something
to answer for and that a
crime of theft to which he was connected, had been committed.
[69] It is trite that an arrest
and detention must be both constitutionally and
statutorily
justified.
(See:
Mistry y Interim Medical and PentaiCouncU of South
Africa and
others
1998 (4) SA 1127
(CC). Minister of Correctional Services
v
Kwakwa
[2002] 3 All SA
242
(SCA)\
Hash
& Oth
e
rs
v Minister of Safety &
Security
[2011]
JOL 27576
(ECP) at para [571,
[70] When the jurisdictional
facts as set out in section 40 (1) (b) of the Act have been
established, a peace officer may invoke
the powers bestowed upon him
by the section and forthwith arrest the suspect. The exercise of
such powers is of course discretionary
(See:
Duncan v the Minister of Law apd Order 19S6
(2)
SA 805 A
at 818 H-J)
.
[71] The plaintiff alleged, in
no-specific way, that the discretionary powers to arrest the
plaintiff was not properly exercised.
It was pleaded that Mvula did
not exercise a discretion at all because he did not have knowledge
of the discretion and alternatively,
that if he did, he would not
have concluded that arresting the plaintiff was necessary in the
circumstances. In amplification,
it was pleaded., that he failed to
consider whether the plaintiff would abscond, intimidate witnesses,
interfere with witnesses,
or harm others.
[72] In
Minister
of Law and Order and Another y Dempjsey
1988 (31 SA 19
(A)
at 38
G_Hefer J A
said
'Once the jurisdictional fact is proved by showing that the
functionary
in
fact
formed the required opinion, the arrest is brought within the ambit
of the enabling legislation, and is thus justified. And
if it is
alleged that the opinion was improperly formed, it is for the party
who makes the allegation to prove it. There are
in .such a case
two
separate and
distinct issues, each having its own onus (
Pillay
y
Krishna
and Another
1946 AD 946
at 953)
.
The first is whether
the opinion was actually formed, the second which only arises if the
onus on the first has been discharged
or if it is admitted that the
opinion was actually formed, is whether it was properly formed. If,
eg, in a case like instant
one the applicant were to admit that a
member of a force had formed the opinion that the detention of the
person concerned was
necessary for the maintenance of the public
order, there can, in my view
;
be no doubt that the approach
will
be
dismissed unless evidence is produced which persuades the court on a
preponderance of probabilities that the opinion was not
properly
formed.
[73] It follows therefore that
while the defendant bears the onus of proving justification for the
arrest and detention when invoking
section 40 (1) (b)
of
the Act, the
plaintiff bears the onus of
proving
that the arresting
officer did not properly form the opinion in deciding whether the
effect the arrest or not.
[74] Arrest and detention is a
mechanism used to secure the attendance- of an accused at court - at
least his or her first appearance,
It is not always necessary to
effect an arrest of a person to secure court attendance. If an
alternative can be implemented,
then that option should be adopted.
It is the party making an allegation of an improperly formed opinion
who must prove that
once the
opinion
was actually formed,
that it was not properly formed.
[75] The plaintiff did not
provide evidence to substantiate any of these factors in an attempt
to discharge this specific onus
that the opinion was improperly
farmed.
All
that he can then rely on, in order to discharge that onus, is the
defendant's evidence. In this matter, the factors pertaining
to the
decision to arrest and to detain would equally apply to the question
of whether the
opinion
was improperly
formed or not. Assuming that Mvula was unaware that there were
alternatives to arrest and detention in order to
secure his
attendance at court does not help the plaintiff since the prevailing
circumstances would, in my view, not have altered
his opinion even
if he had considered such alternatives. In my view the prevailing
circumstances militated against arriving at
the conclusion that any
alternative would be appropriate. Consequently, it must follow that,
absent substantiation by the plaintiff
of indiscretion or improper
instruction on the part of Mvula, there is clearly nothing else to
suggest that the decision to exercise
the power to arrest and detain
the plaintiff should be faulted.
[76] The facts relied upon by
Mvula and. which led to the arrest of plaintiff has turned out to be
untrue and incorrect but this
should not cloud the material issue of
whether the defendant has discharged the onus related thereto. The
important plaintiff
was made. In other words what would the
objective policeman in the position of Mvula have done in the
circumstances as they presented
themselves.
[77] The plaintiff had ample
opportunity to explain his situation and refute the allegations
against him. He lied about his identity,
he'refused or failed to
explain the whereabouts of the
ix&ms
when Mvula asked him
about them, he refused to allow Mvula to inspect the rooms in which
these
it^ms
were
being stored at the material time. Had he co-operated with Mvula and
explained the situation, it is unlikely that he would
have been
arrested in the first place.
[78] Combined with the
complaint's statement, her pointing out the plaintiff as the person
who had stolen the items and where
some of these used to be, it is
clear that Mvula had every reason to form a suspicion and honestly
believe that plaintiff did
take these items when he had no right to
do so as alleged in the complainant's statement,
[79] In my view, having formed
this op'mim
and
in the
light
of
plaintiffs reluctance or inability to explain the situation
regarding the stolen property, Mvula was justified in deciding
to
arrest and detain the plaintiff in the circumstances.
[80] The
plaiuxiffs
claim must
consequently fail. As far as costs are concerned, there is nothing
special in this matter which would justify an unusual
costs
award. Costs should
follow the
result
[81] In the result, the
plaintiffs claims are dismissed with costs.
R. PILLAY
JUDGE OF THE HIGH COURT
Obo the Plaintiff:
Adv
Dyer
Instructed by:
O
'
Brienlnc. Attorneys
26 Bird Street, Central, Port
Elizabeth, 6001.
Tel: 041 ~ 5821309
Obo the Defendant: Adv La her
Instructed by: State Attorney
29 Western Road, Central, Port
Elizabeth, 6001.