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[2019] ZAECPEHC 49
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Minister of Police v Dunjana and Others (01/2015) [2019] ZAECPEHC 49 (13 August 2019)
IN THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION
–
PORT ELIZABETH
Case
No.: 01/2015
In
the matter between:
MINISTER
OF POLICE
Applicant
And
LUVUYO
FUNDILE DUNJANA
First
Respondent
SAMKELISIWE
MZAMO HOPA
Second
Respondent
CHUMA
FUYISIZWE KOSANA
Third
Respondent
SINEKAYA
MCOPELA
Fourth
Respondent
LUYANDA
NZO
Fifth
Respondent
SINETHEMBA
PAYI
Sixth
Respondent
MELIKHAYA
TANCA
Seventh Respondent
JUDGMENT
REVELAS
J
:
1.
The
appellant seeks leave to appeal against the whole of the judgment of
Tshiki J delivered on 4 May 2017. Pursuant to an action
for damages
instituted by the plaintiffs for their alleged unlawful arrest and
detention, the court
a quo
awarded
each of the respondents an amount of R500 000,00 as damages
having found that their arrest and detention was unlawful
in the
circumstances.
2.
It is common cause that a retail store
(Kwikspar) in Gelvandale was robbed on 15 June 2013 by several men.
Warrant Officer Botha
found an empty white Nissan bakkie close to the
scene of the robbery. He found it suspicious. He alleged that a
bystander advised
him that the bakkie had been at the scene of the
robbery, but that the occupants of the bakkie had left in a silver
Polo vehicle.
This informant could not remember the numbers of the
Polo’s registration plate, but was able to recall the letters
on the
number plate being FYZ … EC. A silver Polo with
registration number FYZ 815 EC was later detected in Ngalo Street
where
the plaintiffs were arrested.
3.
No weapons nor any proceeds of a robbery
were found on the plaintiffs who were made to lie on the ground for
three hours. Captain
Dippenaar conferred with Warrant Officer Botha
about clothes found in the vehicles in question and the clothes worn
by the robbers
as seen by Dippenaar on images captured on a Close
Circuit Television Security camera installed at the Kwikspar.
4.
The
respondents argue that the clothing identified was actually just a
black leather jacket, a type of garment, very popular amongst
the
general population.
5.
In
addition, the respondents also relied on the discrepancies in the
testimonies of Botha and Dippenaar which justified the rejection
of
the applicant’s version and bolstered the case for the
respondents (as held by the court
a
quo
).
6.
In my view, the evidence regarding the
information given about a certain silver Polo with – albeit
only part of a registration
number - seen at the robbery, which was
then found at the place of arrest, is not insignificant. Another
court may very well find
that the aforesaid information, plus what
Dippenaar had told Botha, was a justifiable basis for a reasonable
suspicion. Therefore
the applicant has prospects of success.
Order:
1.
In the circumstances, the applicant is
granted leave to appeal to the Full Bench of the Eastern Cape
Division.
2.
Costs are to be costs in the appeal.
_____________________
E REVELAS
Judge
of the High Court
Appearances
:
For
the Applicant: Adv Moorehouse instructed by the State
Attorney, Port Elizabeth
For
the Respondents: Adv Wolmarans instructed by Egon A Oswald
Attorneys at law, Port Elizabeth
Date
heard: 8 August 2019
Date delivered: 13 August 2019