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[2018] ZAECPEHC 1
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September v Minister of Police and Others (2589/2012) [2018] ZAECPEHC 1 (30 January 2018)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
Policy
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE LOCAL
DIVISION, PORT ELIZABETH)
CASE NO.:
2589/2012
In the matter
between:
MLINDELI
DAVID SEPTEMBER
Plaintiff
And
MINISTER
OF
POLICE
First Defendant
NATIONAL
DIRECTOR OF PUBLIC
PROSECUTIONS
Second Defendant
MINISTER
OF JUSTICE AND
CONSTITUTIONAL
DEVELOPMENT
Third Defendant
JUDGMENT
BESHE J:
[1] The
plaintiff in this matter was arrested by employees of the first
defendant on the 24 August 2009 on suspicion that he had
committed
rape.
[2] Plaintiff’s claims, as would appear from his
amended particulars of claim are premised on
inter alia
the
following allegations:
Claim A.
“
6.
On the 24
th
of August 2009, the Plaintiff was unlawfully arrested without a
warrant at Provincial Hospital, Port Elizabeth by members of the
South African Police Force, whose names and ranks are unknown to the
Plaintiff.
7. The Plaintiff was detained initially at Kwa-Zakhele Police
Station for a period of three days, and thereafter at St Albans until
his release on the 11
th
November 2009.
8. On the 27
th
of May 2010 the Plaintiff appeared in
Court and charges against him were withdrawn.
9. In the event of being found that the members of the South
African Police complied with the jurisdictional facts to justify the
unlawful arrest, in terms of Section 40)1)(b) of the Criminal
Procedure Act, 1997, (Act No 51 of 1997) “the Act”. The
Plaintiff pleads that the discretion to arrest and detain unlawfully
was arbitrarily unreasonable, unjustified and improperly by
the
members of the South African Police Force, in that:
9.1 the members of the South African Police Force did not verify
the information that they were initially given;
9.2 the members of the South African Police Force failed to
ascertain the identity of the Plaintiff, with certainty or at all, as
a result they arrested the Plaintiff who was not at the scene when
the crime complained off was committed;
9.3 the Investigation Officer/or other unknown Police Officers
involved in the investigation of the matter against the Plaintiff:
9.3.1 knew or ought to have known that no reasonable objective
grounds or justification existed for the Plaintiffs’ further
and subsequent continued detention;
9.3.2 could have easily ascertained by taking simple investigation
steps that no such grounds or justification but failed to take
and
such step;
9.3.3 failed in their duty to inform the relevant Public
Prosecutors dealing with the matter that there were no such grounds
or
justification or indeed no objective facts reasonably linking the
Plaintiff to the alleged crime of rape
9.3.4 failed to take steps whatsoever to ensure that the Plaintiff
was released from detention as soon as possible.”
Claim B.
“
17.
On the 24
th
of August 2009, the members of the South African Police Force set the
law into motion by laying a charge of rape against the Plaintiff.
18. On the 27
th
of May 2010, the Plaintiff appeared in
Court and charges against him were withdrawn.
19. The actions of the members of the South African Police Force
were unlawful and were made with the intention to injure the
reputation
of the Plaintiff in that the members of the South African
Police Force did not believe the truth of the information given.
20.
Plaintiff also suffered contimelia. His personal integrity, name,
reputation and dignity were impaired, as a result of the public
nature of the court proceedings, to which he was subjected to
amounting to R150 000.00.”
[3]
Responding to the claims, in their plea the defendants admit that
plaintiff was arrested by functionaries of the first defendant
on the
24 August 2009. Defendants denied that plaintiff’s arrest was
unlawful. Pleading that he was arrested lawfully in
terms of
Section
40
(1) (b) of the
Criminal Procedure Act 51 of 1977
on a reasonable suspicion that he had committed the offence of rape.
It was further denied that functionaries of first defendant
exercised
their discretion to arrest and detain the plaintiff in an arbitrary
unjustified, unreasonable and improper manner. First
defendant
pleaded that the decision to arrest the plaintiff was based on the
intention to bring him to justice. Second defendant
denied that the
public prosecutor performed his or her duties negligently or breached
any of his or her duties.
[4] It is
trite that the onus rests on the defendant to justify an arrest.
[1]
[5] However,
because plaintiff’s suit is not confined to unlawful arrest, he
is also suing the defendants for damages for
malicious prosecution
and bore the onus in respect of the latter claim, plaintiff testified
first.
[6] The
plaintiff was the only witness who testified in support of his
claims. His evidence, briefly stated was as follows:
He is a sixty
five (65) year old self employed upholster. On the 24 August 2009 he
was discharged from Provincial Hospital where
he had been admitted
for a stomach ailment. Whilst still waiting for medication he was to
take home following his discharge, two
police officers arrived and
informed him that he was under arrest in connection with the rape of
a child he did not know. He did
however know the child’s mother
with whom he was in a relationship. He was taken to KwaZakhele police
station where he was
locked up with five other inmates. He was taken
to court on a Wednesday having been arrested on Monday. The matter
was postponed,
he was thereafter held at St Albans Prison.
[7] It is
common cause that he was released on bail on the 11 November 2009. It
is also common cause that the plaintiff was re-arrested
on the 9
February 2010 it being alleged that he failed to appear in court
subsequent to being admitted to bail resulting in a warrant
for his
arrest being issued. He was held at St Albans until his release once
again on bail on the 16 February 2010. The charge
against him was
withdrawn on 27 May 2010.
[8] During
cross examination, counsel for the defendants,
Mr
Dala
put to him that the charge was
provisionally withdrawn to which he answered: all he knows is that
the charge against him was withdrawn.
He also persisted in his denial
that he raped his lover’s child. It transpired that on the date
the rape is alleged to have
taken place he had spent the night at the
complainant’s home and that he left the house after the
children left for school.
When it was put to him that the police,
armed with the rape complaint, conducted investigations, he responded
by saying he can
see that.
[9] After the
conclusion of the plaintiff’s case,
Mr
Dala
moved an application for absolution from
the instance in respect of second and third defendants in so far as
Claim A is concerned
and in respect of all three defendants in
respect of Claim B. Arguing that in respect of Claim B there is no
evidence that any
of the defendants set the law in motion against the
plaintiff.
[10] The
application was opposed by
Mr Nobatana
who was acting for the plaintiff.
[11] Mindful
of the requirements that should be met in order for a claim for
malicious prosecution to succeed, I was of the view
that at least one
such requirement had not been met by the plaintiff. The requirements
were restated in
Rudolf v Minister of
Safety and Security
[2]
to be the following:
(a) That defendants set
the law in motion. (instigated or instituted the proceedings).
(b) The defendants acted
without reasonable and probable cause.
(c) The defendants acted
with
malice
.
(d) That the prosecution
failed.
[12] Not only
must these requirements be alleged they must also be proved.
[13] There
was no allegation that second and third defendants set the law in
motion against the plaintiff. In the particulars of
claim, plaintiff
alleges that
“members of the South African Police Force
set the law in motion by laying a charge of rape against the
plaintiff”
. It was further alleged that they did
not believe the truth of they said. Firstly we know that the mother
of the complainant laid
a charge against the plaintiff and not the
members of the first defendant. There was no evidence led to bolster
the allegation
that the defendants did not believe in the truth of
the information given. Having been of the view that in the
circumstances, there
was no evidence upon which I could find in
favour of the plaintiff - I had no difficulty granting the defendants
absolution from
the instance in so far as Claim B is concerned.
[14] One
witness testified on behalf of the defendants or in rebuttal of
plaintiff’s claim.
Sergeant Abegail
Tantaswa Teyise
testified that on or about
the 18 July 2009 the docket in respect of this matter was allocated
to her to conduct investigations.
She proceeded to obtain statements
from the alleged victim, her teacher and her aunt. She testified that
when she inherited the
docket, it only had the statement of the
complainant’s / victim’s mother according to which the
victim was said to
be mentally disabled. It transpired that
Sergeant
Teyise
interviewed the minor child being the
victim of the alleged rape
N.
,
a neighbour and complainant’s teacher because the complainant
had indicated that she made a report to her teacher as well
about the
rape.
[15]
Sergeant
Teyise
was questioned at length about what was said to be
contradictory versions about rape from the statements at her
disposal. This
proposition was based on the fact that the teacher to
whom the report about the alleged rape was first made did not mention
the
actual rape in her statement. The relevant part of teacher
N.
M.
reads as follows:
“I do not remember
the day and the date but I only know that it was the previous
quarter, I was at school and it was in the
morning session when N.
came to me in class. She told me that at her home there is a male
whom they go to church together and this
man was touching her on her
body. She then told me that she refused and asked the man to leave
her alone.”
She told
N.
to bring her mother to school which she never did. It emerged from
plaintiff’s evidence that he attended the same church
with
N.’s
mother and would collect the church keys from her place (
N.’s
mother’s house). It was also put to
Teyise
that
M.’s
statement was also in conflict with that of
Ms
D.
who also deposed to a statement wherein
she stated
N.
told her
that plaintiff “had touched her on her body dragging her to
sleep with him”.
Teyise
retorted that whilst she would not ignore these two statements and
considered them together with complainant’s and her mother’s,
she formed an opinion that there was a reasonable suspicion that the
plaintiff raped the complainant.
Teyise’s
attention was also drawn to the fact that the
medical report on the examination of the complainant was inconclusive
as well as her
mental state. She maintained that she was of the view
that there was a reasonable suspicion that plaintiff had committed
the offence.
[16] To this
end she traced the whereabouts of the plaintiff. Established that he
was admitted at Provincial Hospital. She made
arrangements with the
nursing staff at the hospital that she be advised when plaintiff was
to be discharged. She accordingly arrested
the plaintiff upon his
discharge from hospital.
[17]
Section
40
(1) (b) of the
Criminal Procedure Act
provides
that:
A peace
officer may without warrant arrest any person whom he reasonable
suspects of having committed an offence referred to in
Schedule1,
other than the offence of escaping from lawful arrest.
Rape and
sexual offence against a child or a person who is mentally disabled
are offences that are listed in
Schedule 1 of
the
Criminal Procedure Act
>. These are no
doubt serious offences.
[18] It would
appear that after the re-arrest of the plaintiff, the Sexual Offences
Prosecutor referred the complainant to a Clinical
Psychologist for an
assessment to determine the following:
Her level of
intelligence (IQ assessment) and category in which she fell, and
whether she could distinguish between right and wrong.
Having
assessed the complainant
Dr Mabusela
concluded as follows:
“On the basis of
N.’s developmental history as well as her performance on the
assessment, it can be concluded that N.’s
intelligence falls
within the moderately mentally retarded range. Overall her mental age
is therefore estimated at just over nine
(9) years. N. seems able to
distinguish between truth and lies as long as she can comprehend the
information. There are however
indications that she may not always
feel comfortable enough to express what she knows to be the truth (or
not) if confronted aggressively.”
It would seem
however, that the charge against the plaintiff was provisionally
withdrawn after an application for a postponement
was refused and
before the evaluation report could be filed. This was on the 27 May
2010.
[19] There
seems to be no issue with the other requisite jurisdictional facts
for a
Section 40
(1) (b)
defence except for the question whether
Sergeant
Teyise
(the arresting officer) had reasonable
grounds for the arrest. In particular whether the discretion to
arrest and detain was exercised
justifiably.
[20]
Mr
Nobatana
argued that the arresting officer
failed to exercise her discretion properly. This in view of the fact
that she decided to arrest
the plaintiff even though she had
contradictory statements, the J88 was inconclusive and complainant
was mentally retarded.
[21]
Teyise
told court that she considered all the statements at her disposal,
did not exclude any of them, and that based on all the information
at
her disposal, she formed the opinion that there was a reasonable
suspicion that the plaintiff raped the complainant. She testified
that she did not have any problems when interviewing the complainant.
They understood each other well. This seems to be in keeping
with
Dr
Mabusela’s
observation / finding that
she is moderately retarded. She can distinguish between truth and
lies as long as she comprehends the
information.
[22] The test
whether a suspicion was reasonable entertained within the meaning of
Section 40
(1) (b)
was
enunciated by
Jones J
in
Mabona and Another v Minister of Law and
Order and Others
[3]
as follows:
“The test of whether
a suspicion is reasonably entertained within the meaning of s
40(1)(b) is objective (
S v Nel and Another
1980 (4) SA28 (E)
at 33H). Would a reasonable man in the second defendant’s
position and possessed of the same information
have considered that
there were good and sufficient grounds for suspecting that the
plaintiffs were guilty of conspiracy to commit
robbery or possession
of stolen property knowing it to have been stolen? It seems to me
that in evaluating his information a reasonable
man would bear in
mind that the section authorises drastic police action. It authorises
an arrest on the strength of a suspicion
and without the need to
swear out a warrant, ie something which otherwise would be an
invasion of private rights and personal liberty.
The reasonable man
will therefore analyse and assess the quality of the information at
his disposal critically, and he will not
accept it lightly or without
checking it where it can be checked. It is only after an examination
of this kind that he will allow
himself to entertain a suspicion
which will justify an arrest. This is not to say that the information
at his disposal must be
of sufficiently high quality and cogency to
engender in him a conviction that the suspect is in fact guilty. The
section requires
suspicion but not certainty. However, the suspicion
must be based upon solid grounds. Otherwise, it will be flighty or
arbitrary,
and not a reasonable suspicion.”
[23] When
Teyise
inherited the
docket, there was only one statement filed, that of complainant’s
mother which seems to have been taken on the
3 July 2009, the
incident having taken place on the 15 May 2009. She proceeded to
obtain statements from the complainant, her teacher
and a neighbour.
The teacher confirmed that complainant made a report to her about
what had befallen her in the hands of the plaintiff.
Just as
complainant had suggested, that immediately after she arrived at
school she made the report to her teacher, she said the
report was
made in the “morning session”. Complainant had been
consistent in her reporting about the identity of the
person who she
alleged molested her.
Sergeant Teyise
cannot be faulted for not placing much reliance on the J88. The
complainant was examined on the 3 July 2009 – more than a
month
after the incident had taken place. The doctor’s conclusion was
“Alleged rape”. I am not sure what this
means. Only the
first page of the J88 was attached. We are in the dark as to what was
contained in the rest of the report.
[24] I am
unable to find that
Teyise’s
suspicion was not based on solid ground. I am of the view her
suspicion was reasonable and the arrest of the plaintiff was not
unlawful. It stands to reason that the initial detention was not
unlawful.
[25]
Apart from a bald allegation in the particulars of claim, regarding
the detention after the first appearance that
“
By
requesting that plaintiff be remanded in custody on or about 26
th
August 2009 – 11 November 2010 the said prosecutor/s acted
maliciously and
amino injriandi
and without due regard for plaintiff’s constitutional rights to
be released on bail”
. No
evidence was led as to how the prosecutor acted with
amino
injuriandi
. All we
know is that on his first appearance in court plaintiff expressed the
wish to be represented by his private attorney. The
matter was
postponed but it transpired the said attorney was on maternity leave.
What emerged from plaintiff’s cross examination
is that the
matter was also postponed for a bail application.
Teyise
deposed to an affidavit for purposes of bail application. In which
she expressed the view that the state had a strong case against
the
plaintiff “as he is known to the victim”. That in my view
was still in keeping with what she maintained during
this trial –
that she formed an opinion that there was a reasonable suspicion that
the plaintiff committed the offence.
Mr
Nobatana
suggested
that by submitting that the state had a strong case against the
plaintiff she misled the court. I do not agree. In her
view the state
had a strong case against the plaintiff. I am not persuaded that she
acted maliciously.
[26]
In my view the plaintiff has not made out a case for damages for the
detention following his first appearance in court in respect
of the
defendants.
[27] In the result plaintiff’s action is
dismissed with costs in respect of both claim A and B.
_______________
NG BESHE
JUDGE OF
THE HIGH COURT
APPEARANCES
For
the Plaintiff
:
Adv: MW
Nobatana and Adv: V Madokwe
Instructed
by
:
LUTHANDO NGQAKAYI ATTORNEYS
3
rd
Floor, Capitol Building
545 Govan Mbeki Avenue
North End
PORT ELIZABETH
Tel.: 041 – 484 6294
Ref.: Mr L Ngqakayi/nk/MAT512
For
the Respondents :
Adv: Dala
Instructed
by
:
THE
STATE ATTORNEY
29 Western Road
Central
PORT ELIZABETH
Tel.: 041 – 585 7921
Ref.: 1455/2012/B
Date
Heard
:
24 –
26 October 2017
Date
Reserved
:
26
October 2017
Date
Delivered
:
30
January 2018
[1]
Minister of Law and Order v Hurley
1986 (3) SA 568
A at 589 E –
F.
[2]
2009 (5) SA 94
at 100 [16].
[3]
1988 (2) SA 654
at 658 D – H.