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[2021] ZAECPEHC 67
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Minister of Police v Hashe (CA93/2021) [2021] ZAECPEHC 67 (7 December 2021)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE LOCAL
DIVISION, PORT ELIZABETH)
Case No: CA93/2021
In the matter between
THE MINISTER OF POLICE
Appellant
And
LONWABO
HASHE
Respondent
Coram: Eksteen J et
Pakati J
JUDGMENT ON APPEAL
PAKATI J
[1]
This appeal concerns a claim for damages arising from an alleged
unlawful arrest and detention
of the respondent, Mr Lonwabo Hashe. He
was arrested by Captain Nkosentsha Hilton Toto (“Capt Toto”),
of the South
African Police Services (“the SAPS”) without
a warrant, on a charge of assault with intent to do grievous bodily
harm
on 28 July 2018 at approximately 11:20am, at “M”
Street in Tyanti Location, Makhanda. Mr Hashe was kept in
custody
until Monday 30 July 2018, when he was transported to
Grahamstown Magistrate’s Court where he was further detained at
the
court’s holding cells pending his appearance before a
magistrate. He was subsequently released from the holding cell
at approximately 11:00am, without appearing before a magistrate, the
prosecutor having declined to prosecute him. Mr Hashe
contended
that the arrest and subsequent detention were wrongful, unlawful and
without justification.
[2]
On 26 April 2019 he issued summons against the appellant, the
Minister of Police (“the Minister”),
in Grahamstown High
Court, claiming damages for unlawful arrest and detention in the sum
of R150 000-00. On 24 July 2019
judgment was entered in his
favour for the amount of R120 000-00, with interest at the legal rate
from 15 November 2018 to date
of payment. The Minister was
further ordered to pay the costs of the action. No application
for rescission was brought
to the trial court. Ms Masiza, on
behalf of the Minister, and Mr Olivier, for Mr Hashe, confirmed that
an application for
rescission had been abandoned.
[3]
In his particulars of claim, Mr Hashe had delineated his cause of
action as a wrongful and unlawful
arrest, effected without
justification by the members of the SAPS, in the course and scope of
their employment with the Minister,
on a charge of assault with
intent to do grievous bodily harm. He contended that Capt Toto,
a Group Commander stationed at
Joza Police Station, and his
colleague, Constable Sonanzi, invoked their power for an improper
purpose with the intention to frighten
and harass him by punishing
him, with an ulterior motive. They did not consider any
explanation or statement from him setting
out his side of the story.
He argued that they failed to analyse information at their disposal
in order to exercise their
discretion properly before effecting the
arrest. They further failed to consider, so he contended,
whether or not he was
a flight risk, would interfere with the
investigations or stand his trial. He alleged that they failed
to assess whether
they had a
prima facie
case against him or
not and continued with the arrest and detained him, thereby depriving
him of his freedom of choice and movement.
[4]
The Minister admitted the arrest and detention, but denied that it
was unlawful and without justification.
He contended that the
arresting officer had acted in terms of s 40(1) (b) of the Criminal
Procedure Act 51 of 1977 (“the
CPA”) in that he
reasonably suspected that Mr Hashe had committed an assault with
intent to do grievous bodily harm, an offence
which, he contended,
was listed in Schedule 1 of the CPA.
[5]
Capt Toto testified that he received the docket on 27 July 2018 and
perused the statements therein.
He also interviewed the
victim. It transpired that the victim did not know the suspect
but could point him if he were to
see him.
[6]
Capt Toto explained that the victim’s mother, Ms Lindeka
Khatiya, had enquired about the
progress of the case, whereupon he
told her that he was still searching for witnesses. She then
gave him a cell phone number
of Ms Nandipha Jodwana, one of the
witnesses who happened to be the victim’s friend. It is
worth mentioning that Ms
Jodwana later refused to depose to a
statement saying that she did not want to get involved in this
matter. Capt Toto said
that he had not expected this witness to
be uncooperative, considering that she proffered information
regarding the whereabouts
of Mr Hashe. When he perused the
docket he realised that Sergeant Wayi, who was his colleague, was Mr
Hashe’s father
and had been present at the scene of the alleged
offence. However, he did not want to be of assistance regarding
the whereabouts
of his son.
[7]
Capt Toto explained that on 28 July 2018 he received information from
Ms Jodwana regarding
the whereabouts of Mr Hashe, which he followed
up. He proceeded to his home and arrested him, without a
warrant, and detained
him at Joza Police Station. He said that
Mr Hashe did not apply for bail, and even if he had done so a
prosecutor would have
been the only person who had the authority to
release him. However, on that day none were available as it was
a weekend.
He explained further that Mr Hashe had declined to
make a statement and said that he would do so in the presence of his
legal representative.
Regarding the detention, he asserted that
Mr Hashe had been detained and taken to court before the expiry of 48
hours. According
to him, he cooperated with him.
[8]
Capt Toto conceded during cross-examination that he did not know that
assault with intent
to do grievous bodily harm was, in fact, not an
offence listed in schedule 1 of the CPA. He said that he had to
arrest a
person when he believed that he may not be able get hold of
him again and that he had no choice, but to arrest him, as it
was his duty to do so. He acknowledged that he did not attempt to
arrange for a warrant, by either calling a prosecutor or magistrate
in order to obtain one. He also did not consider section 56 of
the CPA regarding a written notice to secure his attendance
at
court. He argued that it was unnecessary.
[9]
Regarding the detention, Capt Toto conceded that he did not consider
whether Mr Hashe was
a flight risk or not
.
He further
admitted that he did not consider whether he was a danger to society,
would interfere with investigation or stand his
trial. He
explained that Mr Hashe’s father did not know his whereabouts
and did not have his contact number, as he
only visited during
holidays. He admitted that he could have asked for their
contact details but did not, as he did not trust
them.
[10]
When he was asked what he made out of the contents of the statements
contained in the docket Capt Toto
said: “A
ll that, pointed
to the suspect and it made me not to doubt to arrest him”
.
In the arresting statement he deposed to, he said that the reason for
the arrest was that Mr Hashe had been pointed out
by an eye witness.
[11]
The facts of this case are largely common cause, save for the
lawfulness or otherwise of the arrest and detention.
In the
notice of appeal filed on 8 April 2021 the Minister listed grounds of
appeal which may be divided into three parts namely;
11.1 The appellant’s
failure to discharge the
onus
of proving that the arrest and
detention were lawful and justified;
11.2 The procedure
followed by the Magistrate of finding, on the merits, without
allowing the respondent to close his case as required
by the
Magistrates’ Court Rule 29
[1]
;
and
11.3 Costs of counsel’s
fees at three times the prescribed tariff.
[12]
Section 40(1) (b) authorises a peace officer to effect an arrest
without a warrant where he entertains
a reasonable suspicion that the
person has committed an offence referred to in Schedule 1, other than
the offence of escaping from
lawful custody. As adumbrated earlier,
assault with intent to do grievous bodily harm is not referred to in
Schedule 1 of the CPA.
However, the schedule does refer to an assault
when a dangerous wound has been inflicted. It is clear from this
section that the
following jurisdictional facts should be present to
justify an arrest without a warrant:
(12.1) the arrestor must
be a peace officer;
(12.2) He must entertain
a suspicion;
(12.3) the suspicion must
be that the suspect (the arrestee) committed an offence referred to
in Schedule 1, in this case, an assault
in which a dangerous wound
has been inflicted; and
(12.4) the suspicion must
rest on reasonable grounds. Once these jurisdictional facts are
present the discretion whether or
not to arrest, arises.
[2]
[13]
The first two requirements are not contentious in this case. The
issues which arise are whether Capt.Toto
entertained a suspicion as
adumbrated in paragraph (12.3) above, and, if he did, whether the
requirements of paragraph (12.4) above,
which relate to the
reasonableness of the suspicion, have been satisfied. Based on the
facts of this case the critical question
is whether perusal of the
docket, interview of the victim and the fact that the respondent was
pointed out by an eye witness, were
sufficient to give rise to a
reasonable suspicion that Mr Hashe had committed an assault in which
a dangerous wound had been inflicted.
[15]
On behalf of Mr Hashe it was argued that the Minister had failed to
discharge the
onus
of proving that the arrest and detention were lawful.
It is trite that the
arresting officer bears the
onus
to prove the lawfulness of the arrest. In
MINISTER
OF LAW AND ORDER v HURLEY AND ANOTHER 1986 (3) 568 (A)
[3]
Rabie CJ had this to say:
“
An arrest
constitutes an interference with the liberty of the individual
concerned, and it therefore seems to be fair and just to
require that
the person who arrested or caused the arrest of another person should
bear the
onus
of proving that his action was justified in
law.”
[17]
It is equally trite that the reasonableness of the suspicion of the
arresting officer who acts
under s 40(1) (b) must be approached
objectively.
[4]
[18]
The Minister bore the
onus
of establishing the jurisdictional facts, on a balance of
probabilities. If he did so, the arrest would be lawful, unless
Mr Hashe is able to establish that the arresting officer exercised
his discretion to arrest in a manner that was unlawful.
[5]
In
DE
KLERK v MINSTER OF POLICE [2018] 2 ALL SA 597 (SCA)
[6]
Shongwe ADP held:
“
[11]
What is clear is that the arresting officer relied on the statement
by the complainant and the J88 only, when she made the
decision to
arrest. Clearly, seen objectively, that was insufficient.
The arresting officer failed to investigate further
the circumstances
of the assault itself, whether the wound was inflicted intentionally
or whether it came about accidentally during
the scuffle. The
nature and the seriousness of the wound was never investigated.
The arresting officer wrongly assumed
that the assault was committed
with intent to do grievous bodily harm and that the offence is listed
in Schedule 1. Arrest
without a warrant in these circumstances
was not lawfully permissible. In my view the respondent failed
to establish the
jurisdictional facts, in particular that the
appellant committed an offence referred to in Schedule 1. I find that
the appellant
succeeded to prove that the discretion was exercised in
an improper manner. (See Minister of Safety and Security v
Sekhoto
2011 (1) SACR 315
(SCA) at para [46] and Duncan at 819B-D).”
Notably,
only Capt Toto testified on behalf of the Minister.
[19]
Thring AJ, in
BOBBERT
v MINISTER OF LAW AND ORDER 1990 (1) SACR 404 (C)
[7]
,
held
that, for purposes of an arrest without a warrant by a peace officer
in terms of s 40(1) (b), it is necessary that the peace
officer
reasonably suspects such a person of having committed an offence
referred to in Schedule 1 of the CPA. For an assault
to fall
under Schedule 1, a dangerous wound must have been inflicted.
Any attempt to commit an offence referred to in Schedule
1 also
constitutes an offence under that Schedule. The concept
‘
grievous
bodily harm
’
and ‘
dangerous
wound
’
as formulated by the courts in the context of assault are, however,
not synonymous. Thus, where the sole basis for
an arrest in
terms of s 40(1) (b) is the arrestor’s suspicion, based upon an
entry seen in a police register of suspects,
that the arrestee has
allegedly committed an assault with intent to inflict grievous bodily
harm, there is no reasonable ground
for the arrestor to suspect: (1)
that an assault in which a dangerous wound was inflicted, has in fact
been committed; or (ii)
that such an assault has been attempted. It
stands to reason that a person who commits an assault with intent to
do grievous bodily
harm does not necessarily attempt to commit an
assault in which a dangerous wound is inflicted and such arrests are
unlawful under
s 40(1) (b).
[20] Capt
Toto focussed, in his evidence, on whether he entertained a
reasonable suspicion that Mr Hashe had committed
an offence of
assault with intent to do grievous bodily harm, when he decided to
arrest him. No evidence was led to establish
that the offence
committed was listed in Schedule 1 of the CPA and that the suspicion
that he entertained rested on reasonable
grounds which would have
entitled him to exercise a discretion whether to arrest or not.
[8]
[21]
Requirement (iii) of the jurisdictional facts mentioned above, which
justifies an arrest without a
warrant in terms of s 40(1) (b) of the
CPA, has not been met. As I have said, for an assault to fall
within the ambit of
Schedule 1, a dangerous wound must have been
inflicted. For purposes of an arrest without a warrant by a
peace officer in
terms of s 40(1) (b) the Minister was required to
establish, on a balance of probabilities, that Capt Toto held a
suspicion, resting
on reasonable grounds, that Mr Hashe had inflicted
a dangerous wound. No such evidence was led by Capt Toto.
Because he believed
that assault with intent to do grievous bodily
harm was referred to in schedule 1 to the CPA, he never directed his
mind to the
issue.
[22]
Regarding the infliction of a dangerous wound, Ms Masiza conceded
that no evidence relating to the
infliction of a dangerous wound that
threatened the life or limb of the victim was tendered by Capt Toto.
As adumbrated earlier,
during cross-examination, Capt Toto said that
he had perused the docket and decided that he would arrest Mr Hashe
if he found him.
He further said: “
When
you get the dockets and look at the dockets, you make an arrangement
and those who will be arrested on that particular weekend,
or need to
be arrested. And also the plaintiff was in that list and there
were also others
.”
Again, Ms Masiza acknowledged that in the circumstances as testified
to by Capt Toto, the arrest could not be justified
in terms of s
40(1) (b). A policeman who does not substantiate his suspicion
where he is able to do so, does not act reasonably.
[9]
For these reasons the arrest was unlawful, with the result that the
subsequent detention was also unlawful.
[23]
Clearly, Capt Toto wrongly assumed that the offence of assault with
intent to do grievous bodily harm
falls under Schedule 1. He
did not testify that during the interview of the complainant he
enquired from him about the nature
and seriousness of his
injuries.
[10]
He also did not claim to have information upon which he could have
suspected that Mr Hashe had inflicted a dangerous wound
on him, nor
did he see the injuries. The description of the injuries as
recorded in the injury statement compiled by Ms Ntomboxolo
Ndzima is:
“
long
stitched wound on the right hand, three stitched wounds at the back
of the shoulder on the right side and wound at the lower
back
.”
No medical evidence was available in the docket as to the severity of
these injuries or the potential threat which they
may have posed to
life or limb. The description does not suggest that those
injuries constituted a dangerous wounds and photographs
attached to
the injury statement were unclear.
[24]
The Minister failed to establish that Capt Toto entertained a
reasonable suspicion that Mr Hashe had
committed an offence referred
to in Schedule 1. Therefore, the reliance on section 40(1) (b)
has no merit.
[25]
Regarding the second ground of appeal namely, the procedural step
taken by the court
a quo
, of giving judgment at the close of
the Minister’s case, without Mr Hashe first closing his case is
concerned, it was argued
that Mr Hashe had failed to place evidence
before court, which renders the Minister’s evidence
unchallenged. However, Mr
Olivier contended that it was unnecessary
for him to lead evidence after the Minister had closed his case.
The record shows
that the parties agreed that the plaintiff would
testify after the close of the case for the Minister. Before
the Magistrate,
Mr Olivier submitted that the Minister had failed to
prove that the arrest and detention were lawful and that that would
be the
end of the case. Mr Jokwe, for the Minister, accepted
that at the close of his case heads of argument had to be filed on
the merits of the case. This was conceded by Ms Masiza.
[26]
In
CLAUDE NEON LIGHTS (SA) LTD v DANIEL
[1976] ALL SA 347(A)
the Court stated that the test to be applied when absolution from the
instance is sought at the close of plaintiff’s case,
is not
whether the evidence led by the plaintiff establishes what would
finally be required to be established, but whether there
is evidence
upon which a Court, applying its mind reasonably to such evidence,
could or might (not should, nor ought to) find for
the plaintiff.
[27]
In
SIKO v ZONSA (1908, T.S. at 1013)
the Court dealt with a
case where the
onus
lay on the defendant and where at the
close of his evidence the plaintiff had neither closed his case nor
testified. Solomon
J (Mason J concurring) remarked that it
would be useless waste of time to proceed with the matter further.
This principle
was confirmed in
MOENG V MINISTER OF POLICE
CIVAPP3/2016)
[2016] ZANWHC 49
(30 JUNE 2016).
[28]
De Waal JP in
HODGKINSON
v FOURIE
1930 TPD
740
[11]
also confirmed the principle applied in Siko
supra
and held:
“
At the close of
the case of the one side upon whom the
onus
lies, the question
which the judicial officer has to put to himself is: “Is there
evidence on which a reasonable man might
find for that side.”
[29]
The same principle is applicable
in casu
. Therefore, the
attack on the Magistrate’s procedural step of giving judgment
at the end of the Minister’s case
in favour of Mr Hashe has no
merit. In my view, it would have been a useless exercise and
waste of time to proceed with the
matter further when there was no
evidence on which the Court could find for the appellant. I am
therefore unpersuaded that
the Magistrate erred in this regard.
COSTS
[31]
Both parties were
ad idem
that the court
a quo
erred in
not advancing reasons when awarding costs at three times the
Magistrates’ Court tariff. They requested us
to make a
fresh consideration regarding costs. Ms Masiza submitted that
it was not prudent to appoint counsel in this matter
as the merits
and quantum were not complicated. According to her, the
appointment of counsel by Mr Hashe prejudiced the Minister,
who was
not represented by counsel. She conceded that awarding costs at
a higher rate would still give the taxing master
a discretion.
However, she stated that the award should be limited to what was
necessary.
[32] However,
Mr Olivier submitted that counsel’s costs at a higher rate have
been allowed in the past in the
Magistrate’s Court and
therefore should not be reduced and relied on Rule 33 (8) of the
Magistrate’s Court Rules.
[12]
He conceded though that costs at three times the prescribed tariff
does raise the ceiling.
[33]
It is trite that the award of costs is a matter wholly within the
discretion of the court, but this
is a judicial discretion and must
be exercised on grounds upon which a reasonable person could have
come to the conclusion arrived
at.
[13]
It is also trite that the purpose of an award of costs to a
successful party is to indemnify him for the expense to which
he has
been put through having been unjustly compelled to initiate or defend
litigation as the case may be.
[14]
[34]
Jones J (Schoeman J concurring) in
ROAD
ACCIDENT FUND v FORBES (CA 197/05)
[2006] ZAECHC 47
(28 September
2006)
[15]
,
an unreported judgment, held:
“
[6]
The courts frown upon unwarranted interference with the taxing
master’s discretion with regard to the fees which should
be
allowed when he taxes a bill. The emphasis is on interference
which is
unwarranted
. The tariff itself places fetters
on this discretion by fixing a maximum fee. The court has no
alternative but to place
a similar fetter when it exercises its
discretion to allow a higher fee in terms of note (b). As it
is, the taxing master
still retains a proper measure of discretion
when he comes to tax the bill in this case. The tariff
provides, for example,
for a trial fee
not exceeding
the
amount set out in the tariff (item 22). That must be read in
this case as a fee not exceeding three times the amount
set out in
the tariff. It seems to me that the taxing master has the same
degree of discretion that he always has in deciding
upon the
reasonableness of fees charged. The only difference is that the
ceiling has been raised.”
[35]
The learned Judges found that an award of party and party costs,
including counsel’s fees at
three times the amount of the
tariff, is not incompetent. That is so because the taxing
master still retains his proper discretion.
In
BRAND
V ROAD ACCIDENT FUND (CA 170/09) [2009] ZAECGH 85 (30 November
2009)
[16]
Kroon J (Plasket J concurring) remarked:
“
Suffice
it to say that the Magistrate’s approach can clearly not be
endorsed. The restriction of the engagement of counsel
to
“special cases” enjoys no foundation in the rules of the
Magistrate’s court nor in the practice followed in
that court,
and is clearly unacceptable. I may add that, as will appear
below, the engagement of counsel in the matter was
in fact a proper
and prudent course for the Appellant to have adopted. It need
hardly be commented that the inference is
inescapable that the
Magistrate’s unacceptable attitude towards the briefing of
counsel to appear in his court featured largely
in his coming to the
decision reached by him.”
[36]
The award of costs by the Magistrate does no more than to indemnify
the successful party for the reasonable
expenses he was obliged to
incur in being forced into court to exercise his rights. In my
view, the award made by the Magistrate
is fair and not incompetent
and should stand.
[37]
In the circumstances I would dismiss the appeal with costs.
B
M PAKATI
JUDGE
OF THE HIGH COURT
EKSTEEN
J:
I
agree. The appeal is dismissed with costs.
J
W EKSTEEN
JUDGE
OF THE HIGH COURT
Date
Heard:
17 September 2021
Date
Delivered: 07 December 2021
Appearances:
For Appellant:
Adv A N Masiza instructed by the State Attorney c/o Joko
& Co.
Inc, Makhanda
For
Respondent: Adv W H Olivier instructed
by N N Dullabh Attorneys, Makhanda
[1]
Rule
29 (8) of the Magistrates’ Court Rules of Court provides that
where the burden of proof is on the defendant, the defendant
shall
first adduce his evidence, and if necessary the plaintiff shall
thereafter adduce his evidence.
[2]
Duncan
v Minister of Law and Order
1986 (2) SA 805
(A) at 818G-H; Minister
of Safety and Security v Sekhoto and Another 2011 (1) SACR 315 (SCA)
(2011 (5) SA 367)
at para [6].
[3]
At
589E-F.
[4]
See
Minister of Safety and Security v Swart
2012 (2) SACR 226
at para
[20].
[5]
See
Minister of Safety and Security v Sekhoto
supra
at para [30] & [38].
[6]
At
para [11]; See Mneno v Minister of Police (647/2013) [2016] ZAECBHC
15 (delivered on 14 June 2016).
[7]
At
453 t
he
Court concluded as follows: “I conclude that there was no
reasonable ground on which Antha could have suspected, simply
because the plaintiff was sought by the police on a charge of
assault with intent to do grievous bodily harm, that he was guilty
of an attempt to commit an assault, when a dangerous wound is
inflicted.’ His arrest of the plaintiff, being a
statutory function, could, to use the words of Hefer JA in Minister
of Law and Order and Another v Dempsey (supra at 38B-C) only
be
validly performed within the limits prescribed by the statute
itself’. In the absence of a reasonably grounded
suspicion on Antha’s part that the plaintiff had committed or
attempted to commit such an assault, it follows, in my view,
that
his arrest of the plaintiff was unlawful.”
[8]
See
Duncan v Minister of Law and Order
1986 (2) SA 805
(A) at 818I.
[9]
See
Nkosi v Minister of Police & Another (unreported, GP case no
51083/2015, 2 August 2017 at [24].
[10]
See
Goliath v Minister of Police (CA107/2017) [2017 ZAECGHC 119 (14
November 2017).
[11]
At
745. See also Pather v Minister of Police (14512/13) [2016]
ZAGPPHC 215 (31 March 2016) at para 31.1-31.3 where the Court
held:
“…Plaintiff is entitled to apply for judgment at the
close of the Defendant’s case without leading evidence
and
without closing its case. It was submitted on her behalf that the
test to be applied is similar to that of absolution from
the
instance where a Plaintiff has not discharged its
onus
.
It was further submitted that if a Defendant upon whom the
onus
of proof rests has failed to lead such evidence in discharge of that
onus to the effect that a reasonable man could have not
cone to the
conclusion that it might be accepted, the court would be entitled to
give judgment for the Plaintiff.”
[12]
Rule
33(8) of the Magistrates’ Court Rules provides: “(8) The
court may on request made at or immediately after giving
of judgment
in any contested action or proceedings in which –
(a)
is involved any difficult question of law
or of fact; or
(b)
the plaintiff makes two or more claims
which are not alternative claims; or
(c)
the claim or defence is frivolous or
vexatious,
Award
costs on any scale higher than that on which the costs of the action
would otherwise be taxable.”
[13]
Mouton
v Die Mynwerkersunie
1977 (1) SA 119
(A) at 149A-B. See also Merber
v Merber
1948 (1) SA 446
(A) at 453.
[14]
Die
Meester v Joubert
1981 (4) SA 211
(A) at 218G-H; Zeelie v General
Accident Insurance Co Ltd 1993 (2) SA 776 (E) at 779D-F
[15]
At
para 6.
[16]
At
para [14].