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[2023] ZAFSHC 16
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Ditsele and Others v Minister of Police and Another (805/2019; 3131/2019) [2023] ZAFSHC 16 (25 January 2023)
THE
HIGH COURT OF SOUTH AFRICA
FREE
STATE PROVINCIAL DIVISION
CASE NO: 805/2019
Reportable: yes/no
Circulate to other
Judges: yes/no
Circulate to
Magistrates: yes/no
In the matter between:
EDWARD
DITSELE
First Plaintiff
FREDDY
SELLO
MOHLALA
Second Plaintiff
TSHEPO
HOPE MASHAMAITE
Third Plaintiff
and
THE
MINISTER OF POLICE
First Defendant
THE
NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS
Second Defendant
As
consolidated with:
CASE
NR.: 3131/2019
In
the matter between:
ANDREW
THAPELO
HESIE
Plaintiff
[1]
and
THE
MINISTER OF POLICE
First Defendant
THE
NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS
Second Defendant
Coram:
Opperman, J
Hearing:
20
April 2021, 21 April 2021, 23 April 2021, 20 July 2021, 21 July 2021,
23 July 2021, 5 October 2021, 6 October 2021, 22 November
2021, 31
January 2022, 25 October 2022
Delivered:
25 January 2023. The
judgment was handed down electronically by circulation to the
parties’ legal representatives by email
and release to SAFLII
on 25 January 2023. The date and time for hand-down is deemed to be
25 January 2023 at 15h00
Judgment:
Opperman, J
Summary:
Arrest in terms of
section
40
of the
Criminal Procedure Act 51 of 1977
and prosecution by the
State
JUDGMENT
[1]
The
Supreme Court of Appeal in
Biyela
v Minister of Police
(1017/2020) [2022](1 April
2022) ZASCA 36
, yet again, stressed that
our legal system sets great store by the liberty of an individual.
The decision to arrest must be reasonable
and rational.
[2]
[2]
Our constitutional reality is the same when
prosecution is instituted in a criminal court of law. Liberty is not
only physical freedom;
it is to be free and protected from
malignant,
harmful and defamatory persecution.
[3]
The facts
in casu
demonstrate the persistent reality of the
police and the prosecuting authority in their battle against crime
and the protection
of our democracy; they have to take split second
decisions to arrest and make complicated choices to prosecute. The
truth rarely
prevails and people and evidence are unpredictable. The
battle against criminal anarchy that threatens our society is grave.
[4]
Hence, the legal fact that the decision to arrest and to prosecute do
not demand prove
of the case beyond reasonable doubt or any doubt at
the time. T
he Biyela - case
supra
noted that the standard of a reasonable suspicion for arrest is very
low.
[34] The standard of a
reasonable suspicion is very low. The reasonable suspicion must be
more than a hunch; it should not be an
unparticularised suspicion. It
must be based on specific and articulable facts or information.
Whether the suspicion was reasonable,
under the prevailing
circumstances, is determined objectively.
[35] What is required is
that the arresting officer must form a reasonable suspicion that a
Schedule 1 offence has been committed
based on credible and
trustworthy information. Whether that information would later, in a
court of law, be found to be inadmissible
is neither here nor there
for the determination of whether the arresting officer at the time of
arrest harboured a reasonable suspicion
that the arrested person
committed a Schedule 1 offence.
[36] The arresting
officer is not obliged to arrest based on a reasonable suspicion
because he or she has a discretion. The discretion
to arrest must be
exercised properly…
[5]
Section 38 of
the Criminal Procedure Act 51 of 1977 (CPA) prescribes the methods of
securing attendance of accused in court:
(1)
Subject to section 4 (2) of the
Child Justice Act, 2008 (Act No. 75 of 2008), the methods
of securing
the attendance of an accused who is eighteen years or older in court
for the purposes of his or her trial shall be
arrest, summons,
written notice and indictment in accordance with the relevant
provisions of this Act.
[Sub-s.
(1) substituted by s. 4 of Act No. 42 of 2013.]
[6]
Section 39 of
the CPA prescribes the manner and effect of arrest:
(1)
An arrest
shall be effected with or without a warrant and, unless the person to
be arrested submits to custody, by actually touching
his body or, if
the circumstances so require, by forcibly confining his body.
(2)
The person
effecting an arrest shall, at the time of effecting the arrest or
immediately after effecting the arrest, inform the
arrested person of
the cause of the arrest or, in the case of an arrest effected by
virtue of a warrant, upon demand of the person
arrested hand him a
copy of the warrant.
(3)
The effect of an arrest shall be that the person
arrested shall be in lawful custody and that he shall be
detained in
custody until he is lawfully discharged or released from custody.
[7]
Section 40 of the CPA prescribe arrest without a warrant as is
relevant to this case;
and it is clear that:
40.
Arrest by peace officer without warrant.
(1) A
peace officer may without warrant arrest any person—
(a)who commits or
attempts to commit any offence in his presence;
(b)whom he reasonably
suspects of having committed an offence referred to in Schedule 1,
other than the offence of escaping from
lawful custody;
(h) who is reasonably
suspected of committing or of having committed an offence under any
law governing the making, supply, possession
or conveyance of
intoxicating liquor or of dependence-producing drugs or the
possession or disposal of arms or ammunition; …
[8]
Before now and as far back as on 19 November 2010, Harms DP, Nugent
JA, Lewis JA,
Bosielo JA and K Pillay AJA in the matter of
Minister
of Safety and Security v Sekhoto and Another
2011 (1) SACR 315
(SCA) concluded that
section 40
of the
Criminal Procedure Act 51 of
1977
is not unconstitutional.
[9]
The parameters or “jurisdiction” for a lawful arrest are:
[31]
In order to prove that the
arrest was lawful, it must be proven that:
(i)
the arresting officer
was a peace officer;
(ii)
the arresting officer
entertained a suspicion;
(iii)
that
the suspect to be arrested committed an offence referred to in
schedule 1;
[3]
(iv)
the
suspicion rested on reasonable grounds.
[4]
[10]
The Sekhoto - case categorically denounced a fifth jurisdictional
requirement that arrest
will be unlawful if a less invasive option
exists such as summons or written notice:
[21]
The four express jurisdictional facts for a defence based on
s
40(1)(b)
have been set out earlier, but to repeat the salient
wording: 'a peace officer may without warrant arrest any person whom
he reasonably suspects of having committed an offence referred to in
Schedule 1'. Schedule 1 offences are serious offences.
[22]
With all due respect to the different High Court judgments
referred to, applying all the interpretational skills at
my disposal
and taking the words of Langa CJ in
Hyundai
seriously,
I am unable to find anything in the provision which leads to the
conclusion that there is, somewhere in the words,
a hidden fifth
jurisdictional fact. And because legislation overrides the common
law, one cannot change the meaning of a statute
by developing the
common law.
[11]
In defending a claim for unlawful arrest, the
four jurisdictional facts set out in
section 40(1)(b)
or, here also,
40(1)(h) of the CPA must be pleaded. It was done in the instance
as will be pointed out hereunder.
[12]
The Sekhoto - case ruled that once the
required jurisdictional facts were present the discretion whether or
not to arrest arose.
Harms, JP set some margins; not a
numerus
clausus
, of the reasonable suspicion
- discretion:
1.
Peace officers are entitled to exercise
this discretion as they see fit, provided they stayed within the
bounds of rationality.
2.
This standard is not breached because an
officer exercised the discretion in a manner other than that deemed
optimal by the court.
3.
The
standard is not perfection, or even the optimum, judged from the
vantage of hindsight, and, as long as the choice made fell
within the
range of rationality, the standard is not breached.
[5]
4.
It is clear that the power to arrest is
to be exercised only for the purpose of bringing the suspect to
justice; however, the arrest
is but one step in that process.
5.
The arrestee is to be brought to court
as soon as reasonably possible, and the authority to detain the
suspect further is then within
the discretion of the court.
6.
This discretion is subject to
a wide-ranging statutory structure and, if a peace officer were
to be permitted to arrest only
when he or she was satisfied that the
suspect might not otherwise attend the trial, then that statutory
structure would be entirely
frustrated. To suggest that such a
constraint upon the power to arrest is to be found in the statute by
inference is untenable.
7.
The arrestor is not called upon to
determine whether or not a suspect ought to be detained pending
trial; that is for the court
to determine, and the purpose of an
arrest is simply to bring the suspect before court so as to enable it
to make that determination.
8.
The
enquiry to be made by the peace officer is not how best to bring the
suspect to trial, but only whether the case is one in which
that
decision ought properly to be made by the court. The rationality of
the arrestor's decision on that question depended upon
the particular
facts of the case, but it is clear that in cases of serious crimes,
such as those listed in Schedule 1, an arrestor
could seldom be
criticised for arresting a suspect in order to bring him or her
before court.
[6]
[13]
The Biyela
- case confirmed the above and ruled that the evidence or suspicion
considered by the officer
need
not
be based on information that would subsequently be admissible in a
court of law.
[7]
Information regarded by the arresting officer
may
be hearsay evidence.
[14]
The party who alleged the infringement of a constitutional right bore
the onus of establishing
it. Furthermore, a party who attacked the
exercise of a discretion where the necessary jurisdictional facts
were present, bears
the onus of proof.
[15]
Malicious
prosecution is characterized by malice or intend to do harm.
Whether
a prosecution is wrongful or unlawful depends on whether there was a
reasonable and probable cause coupled with the
animus
iniuriandi
of the defendant in instigating, initiating or continuing it.
[8]
[16]
Under Section
179 of the Constitution, 1996 and the
National Prosecuting Authority
Act, 1998
, the National Prosecuting Authority has the power to
institute criminal proceedings on behalf of the State and to carry
out any
necessary functions’ incidental to institution of
criminal proceedings. Section 179 of the Constitution places the
decision
to prosecute within the sole power of the Prosecuting
Authority.
[17]
The
Directives or Code of Conduct
[9]
promulgated in terms of the National Prosecuting Act, 1998, demand
that p
rosecutors
shall, among others:
1.
Perform their
duties fairly, consistently and expeditiously.
2.
Perform their
duties fearlessly and vigorously in accordance with the highest
standards of the legal profession.
3.
They shall
give due consideration to declining to prosecute, discontinuing
criminal proceedings conditionally or unconditionally
or diverting
criminal cases from the formal justice system; particularly those
involving young persons, with due respect for the
rights of suspects
and victims, where such action is appropriate.
4.
In the
institution of criminal proceedings; proceed when a case is
well-founded upon evidence believed to be reliable and admissible,
and not continue a prosecution in the absence of such evidence.
5.
They must
ensure that, throughout the course of the proceedings, the case shall
be firmly but fairly and objectively prosecuted.
6.
They must
consider the views, legitimate interests, and possible concerns of
victims and witnesses when their personal interests
are, or might be,
affected, and endeavor to ensure that victims and witnesses are
informed of their rights, especially with reference
to the
possibility, if any, of victim compensation and witness protection.
7.
They shall
safeguard the rights of accused persons, in line with the law and
applicable international instruments as required in
a fair trial.
8.
A prosecutor
must examine proposed evidence to ascertain if it has been lawfully
or constitutionally obtained and shall refuse to
use evidence which
is reasonably believed to have been obtained through recourse to
unlawful methods which constitute a grave violation
of the accused
person's human rights and particularly methods which constitute
torture or cruel treatment.
[18]
In
Kubeka v The Minister of Police and Another
(63675/2016)
[2022] ZAGPPHC 298 (4 May 2022) Collis, J ruled and confirmed that:
[30] … To
succeed with a claim for malicious prosecution a claimant must allege
and prove that (i) the defendants
set the law in motion, they
instigated and instituted the proceedings; (ii) they acted without
reasonable and probable cause; (iii)
they acted with malice, and (iv)
the prosecution failed.
[19]
Okpaluba,
[10]
after scrutiny of the South African law, case law and international
principles, emphasized that:
…
the requirement
of reasonable and probable cause plays such a central role in an
action for malicious prosecution that the success
of such an action
depends largely on there being a lack of reasonable and probable
cause for the prosecution among the other three
requirements. The
presence or absence of reasonable and probable cause more or less
dictates whether or not there is any basis
for the prosecution and
leads the way to the inquiry as to whether there was malice or
improper purpose on the part of the prosecutor.
Again, whether or not
the defendant lacked reasonable and probable cause to instigate,
initiate or continue the prosecution depends
ultimately on the facts
and information carefully collected and objectively assessed, on
which the prosecutor based his/her belief
that the plaintiff was
guilty;
it is
not
the probability that those
facts would secure a conviction.
Yet the prosecutor is faced with
the difficulty in that his/her conduct in this regard is subject to
both the subjective and objective
tests. In evaluating the material
that is available to him/her arising from the investigations, the
objective sufficiency of the
material must be considered by the
prosecutor and assessed in the light of all the facts of the
particular case. In effect, his/her
belief must be honestly held and
founded on reasonable grounds, such that would lead a reasonable
person in his/her position to
hold a similar belief. It essentially
requires the plaintiff to establish a negative, rather than for the
defendant to prove the
existence of reasonable and probable cause.
(Accentuation added)
[20]
The cases of the first three plaintiffs were consolidated with that
of the fourth plaintiff.
In this case the litigation instituted
against the Minister of Police and the National Director of Public
Prosecutions, as per
t
he amended claim dated 25
October 2022, is based on the following:
6.
The First and Second
Defendants’ offices and principle place of business are
situated in the jurisdiction of the above-mentioned
Honourable Court.
AD
CLAIM 1 – AD UNLAWFULL ARREST AND DETENTION
7.
7.1 On the
8
th
of October 2016 at Manguang Township the Plaintiffs
were wrongfully and unlawfully arrested by unknown Police members who
at the
time of the arrest was in service of the Manguang SAPS.
7.2 The
aforementioned arrest was effected at Manguang without a Warrant of
Arrest.
8.
8.1 The
Plaintiffs was thereafter transported to the Manguang Police Station
and detained at the instance of the
arresting and investigating
police officers at Manguang SAPS holding cells without a Warrant of
Detention.
8.2 The
Plaintiffs was charged under Manguang Police Case Docket under CAS
111/10/2016 on alleged charges of dealing
in Dagga and dealing of
alcohol without a license.
8.3 On
the 11
th
of October 2016 the Plaintiff’s appeared in
the Manguang Magistrate’s Court and was released on bail of
R400.00 each.
8.4 The
Plaintiffs was thus detained at the Manguang Police Station holding
cells from the 8
th
of October 2016 until the 11
th
of October 2016.
9.
At all relevant times the
aforesaid members of the First Defendant were acting within the cause
and scope of their employment as
employees of the First Defendant.
10.
The arrest of the
Plaintiff was unlawful in the fact that:
10.1 The members of
the Manguang SAPS respectively did not take into account the
Plaintiffs’ rights in terms of article
12 of the Constitution,
Act 106 of 1996, (herein after called “the Constitution”)
10.2 The Plaintiffs
was arbitrarily and without good cause deprived from his freedom.
10.3 That the
members of the Manguang SAPS had no grounds to interfere with the
Plaintiff’s Constitutional rights, by
that:
10.3.1
The Plaintiffs did not pose any risk to the community.
10.3.2
The Plaintiffs would not have evaded the court hearing.
10.3.3
That the members of the Manguang SAPS had no grounds to believe that
the Plaintiff would harm
himself or any other person of the public.
10.3.4
That the Plaintiffs was in condition and/or had the will to refute
the allegations against
them and/or did explain to the members of the
Manguang SAPS that they did not deal with Dagga and selling alcohol
without a license
but the members did not take it into consideration;
10.3.5
That the members of the Manguang SAPS had no urgency towards the
arrest of the Plaintiffs.
10.3.6
That the members of the Manguang SAPS did not take into consideration
whether the Plaintiffs
had a known and fixed residence.
AND/OR
ALTERNATIVE:
11.
The arrest of the
Plaintiffs was unlawful due to the fact that the members of the
Manguang SAPS had no
prima facie
and/or reasonable grounds to
arrest the Plaintiffs.
AND/OR
ALTERNATIVE:
12.
The arrest of the
Plaintiffs was unlawful due to the fact that the members of the
Mangaung SAPS did not exercise their discretion
and/or did not
exercise their discretion properly by:
12.1 There was no
obligation on the members of the Manguang SAPS to arrest the
Plaintiff as there were no evidence confirming
that they were selling
either Dagga or alcohol to members of the public.
12.2 That the
members of the Manguang SAPS did not investigate the matter properly
and did not follow up the Plaintiffs’
explanation and proof
that all these items found in their possession relating to alcohol
was purchased by them and all purchase
orders were given to the
arresting officers.
12.3 That there
were no grounds to suspect that the Plaintiffs had committed an
offence.
12.4 That the
members of the Manguang SAPS did not exercise their discretion
properly and
bona fide
.
13.
As a result of the
unlawful arrest and detention, the Plaintiffs suffered general and
special damages in the sum of R450 000.00
each for:
13.1 Depriving of
the Plaintiff’s freedom;
13.2
Contumelia;
13.3 Emotional
stress and psychological trauma;
13.4 Embarrassment
suffered by the Plaintiff by keeping him in holding cells and being
arrested in front of members of the
public and colleagues;
13.5 Legal fees.
The amount of R450 000.00
each is a global amount for the Plaintiffs’ general and special
damages.
AD
CLAIM 2 – AD MALICIOUS PROCEEDINGS
14.
14.1 On the 11
th
of October 2016 at or near Manguang, the members of the Manguang SAPS
wrongfully and maliciously set the law in motion by arresting
and
charging the Plaintiffs on the charge of possession of Dagga and
dealing in alcohol.
14.2 The Plaintiffs
on the 11
th
of October 2016 appeared in the Manguang
Magistrate’s Court on the abovementioned charges whereafter the
Plaintiff were released
on bail of R400.00 each after the matter was
remanded for further investigation.
14.3 The unknown
member of the Second Defendant alternatively the Public Prosecutor
continued to prosecute the Plaintiffs
on the aforementioned charges
and the Plaintiffs appeared in Court on six different occasions
regarding this particular matter.
14.4 On the 16
th
of March 2017 the Public Prosecutor decided to withdraw the
charges against the Plaintiffs due to a lack of evidence and possible
successful prosecution.
14.5 The Plaintiffs
were then again Summons to appear in Court on the 13
th
of
July 2017 as the unknown member of the Second Defendant decided to
re-institute the prosecution.
14.6 After five
more appearances the matter was set down for trial the 6
th
of December 2017 against the Plaintiffs but was subsequently
discharged in terms of Section 174.
15.
When laying these charges
against the Plaintiffs the members of the Manguang SAPS and members
of the National Prosecuting Authority
had no reasonable and/or
probable cause for doing so nor did they have any reasonable belief
in the truth and information and charges
initiated, but the arrest
and prosecution who were rather acuted by malice and/or
animo
iniuriandi
.
16.
At all relevant times the
aforementioned members were acting within the course and scope of
their employment as employees of the
First Defendant as members of
the Mangaung SAPS and the Second Defendant as members of the National
Prosecution Authority.
17.
As a result of the
foregoing the Plaintiffs suffered general and special damages in the
sum of R400 000.00 each for:
17.1
Contumelia;
17.2 Emotional
stress and psychological trauma;
17.3 Loss of
amenities of life;
17.4 Legal fees;
17.5 Travelling and
hotel expenses.
The amount of R400 000.00
each is a global amount for the Plaintiff’s damages.
STATUTORY
REQUIREMENTS:
16.(sic)
Notices in terms of
Section 3 of Act 40 2002 was forwarded to the 1
st
and 2
nd
Defendants by the Plaintiffs, which Notice is annexed hereto and
marked
Annexure “A”.
Notwithstanding demand, the
Defendants have refused and/or neglected to pay the amount.
WHEREFORE
the
Plaintiffs prays for judgment against the First and Second Defendants
for:
AD
CLAIM 1:
1.
Payment of the sum of R450 000.00 each;
2.
Mora interest at the rate of 10,25% per annum in terms of the
Prescribed Rate of Interest Act, No 55 of 1975
, calculated from date
of summons until date of payment;
3.
Cost of suit;
WHEREFORE
the
Plaintiffs pray for judgment against the First and Second Defendants,
jointly and severally for:
AD
CLAIM 2:
1.
Payment of the sum of R400 000.00 each;
2.
Mora interest at the rate of 10,25% per annum in terms of the
Prescribed Rate of Interest Act, No 55 of 1975
, calculated from date
of summons until date of payment;
3.
Cost of suit;
[21]
The charges against the plaintiffs were for the illegal sale of
liquor and the illegal
possession of dagga.
[22]
The first plaintiff, Edward Ditsele, is 46 years old, in a
relationship and has three children.
He resides in Soweto. The second
plaintiff, Freddy Sello Mohlala, is 56 years old, has been married
for 15 years and has four children.
He resides in Soweto. Mohlala
owns a tavern called Freddie’s and since 2007. The business is
run by his children. He declared
on his warning statement that he is
unemployed. This is not true because he is self-employed and still
generate an income from
the tavern. The third plaintiff, Tshepo Hope
Mashamaite, is 38 years old, married and has two children. He resides
in Gauteng and
works as a technician at Eskom. Mashamaite owned
alcohol, as he regards himself “a bit of a whiskey collector”.
The
fourth plaintiff is Andrew Thapelo Hesi. As said; his case was
consolidated with the case of the other plaintiffs. Hesi is 30 years
old, married and has two children. He resides in Bloemfontein. Hesi
did not travel from Soweto with the other Plaintiffs.
[23]
The evidence adduced in this trial was proficiently summarised in the
heads of arguments
of counsel for the plaintiffs and the defendants.
I will not burden the judgment with the detailed depiction of the
evidence. Although
showed from their different perspectives; the
summaries are correct.
[24]
Little is in dispute and the facts are mostly common cause. The
issues are more legal in
nature: Were the arrest and detention
unlawful and was the prosecution malicious on the facts that
prevailed?
[25]
The testimony of all four the plaintiffs concluded their case. The
defendants called two
arresting officers; Sergeant Moloi and Captain
Haarmeier. The Investigating Officer, Constable Raboroko, testified
and their case
was concluded by the testimony of the prosecutor that
dealt with the trial. She was Mrs. Yucinda Smith.
[26]
The exhibits that were handed in are the following:
Exhibit A: The bundle of
pictures of the items confiscated numbered pages 100 – 121;
Exhibit B: The dagga
certificate which was signed by Mashamaite;
Exhibit C: The SAPD 14A
Notice of Rights of Mashamaite;
Exhibit D: The SAPD 14A
Notice of Rights of Hesie;
Exhibit E: The SAPD 14A
Notice of Rights of Ditsele;
Exhibit F: The Warning
Statement of Mohlala;
Exhibit G: The SAPD 14A
Notice of Rights of Mohlala;
Exhibit H1 to H3:
Extracts from the Occurrence Register, SAPD 10;
Exhibits I1 and I2:
Extracts from the Detained Persons Register;
Exhibits J1 to J6:
Extracts from the SAPD 13 Register depicting the confiscated items of
8 October 2016;
Exhibit K: Statement of
Captain Haarmeier commissioned on 10 October 2016;
Exhibits L1 to L3:
Extracts from the Investigation Diary (SAPD 5) of the docket marked
Mangaung cas 111/10/2016;
Exhibits M1 to M4:
Receipts on pages 146 – 148 as handed in by the plaintiffs;
Exhibit N: Statement of
Constable Raboroko commissioned on 4 May 2017;
Exhibits O1 and O2:
Statement of Constable Raboroko;
Exhibit P: Statement of
Constable Raboroko commissioned on 30 November 2016;
Exhibits Q and Q1:
Statement of Constable Raboroko;
Exhibits R1 and R2:
Extracts from the Investigation Diary (SAPD 5) of the docket marked
Mangaung cas 111/10/2016;
Exhibit S: Extract from
the Investigation Diary (SAPD 5) of the docket marked Mangaung cas
111/10/2016;
Exhibit T: J15 Charge
Sheet dated 16 March 2017.
[27]
The facts proven are:
1.
The four plaintiffs were found in possession of thousands of rands
worth of alcohol
at a Sechaba Chisa Nyama, a popular drinking and
party venue in Bloemfontein.
2.
The place was packed with people and it was even more so because of
the Macufe
Festival that was on that weekend when the plaintiffs were
there and before their arrest.
3.
The alcohol was on the back of a bakkie whereupon the plaintiffs were
sitting
with the flap open. This, according to the testimony of Hesi,
the fourth plaintiff, and the evidence of the arresting officers;
Moloi and Haarmeier. Hesi testified that they sat on the back of the
vehicle at Sechaba. The wind and rain caused them to move
into the
cabin of the bakkie.
4.
Three of the plaintiffs came from Soweto and one of the plaintiffs
was from Bloemfontein.
The alcohol belonged to two of the plaintiffs;
the one a tavern owner and the other a whiskey collector. They
produced receipts
on different occasions to prove their ownership but
it did not take the alleged sale of the liquor any further. It proved
their
ownership.
5.
The version of the plaintiffs on why they brought the copious amount
of alcohol
to Bloemfontein is vague. The one version is that they
were going to meet some more friends and intended to distribute it
among
them. The other is that it was for a family gathering. It is
improbable that the two plaintiffs were going to hand out the
valuable
and substantial amount of alcohol free of charge;
specifically, the expensive alcohol such as the whiskey. In addition
to the alcohol,
a substantial number of drinking glasses were on the
bakkie.
6.
The bakkie, a double cab Volkswagen Amarok, belonged to Mashamaite.
7.
Strangely and against the version of the plaintiffs that they did not
engage
in any retail or sale of the liquor; it is an undisputed fact
that a cash float was found in the cabin of the bakkie. It is, among
others, depicted on page 114 of Exhibit A in a photo taken by the
police. It consisted of:
14x R10.00 notes,
R345.00 worth of R5.00
coins,
1x torn in half R10.00
note,
3x R100.00 notes,
8x R20.00 notes,
4x R200.00 notes,
6x R50.00 notes,
there were some torn
R20.00 notes also confiscated.
8.
The inventory of the alcohol is the following:
18x Smirnoff 1818 Citrus
Flavour 750ml bottles,
12x Smirnoff 1818
Original 750ml bottles,
10x SKYY Vodka 750ml
bottles,
12x Absolute Vodka 750ml
bottles,
12x Singleton Whiskey
750ml bottles,
12x Amarula 750ml
bottles,
12x Henessy Cognac 750ml
bottles,
7x Krone Borealis Vintage
750ml bottles,
2x Courvoisier Cognac
750ml bottles,
1x Remy Martin Cognac
750ml bottle,
1x J & B 12 years
Whiskey 750ml bottle,
1x Johnnie Walker Blue
Label 750ml bottle,
1x Glenfiddich 15 years
old Whiskey 750ml bottle,
1x Glenfiddich 18 years
old Whiskey 750ml bottle,
1x box with 12 Johnny
Walker drinking glasses and 9 Bell’s drinking glasses,
25 white and 46 coloured
drinking glasses.
9.
The cash slips entered into evidence by agreement between the parties
show alcohol
to the value of R1299.00, R4299.35 and R12391.60.
(Exhibit M)
10.
Hesi testified that he saw the “hawkers’ bag”
depicted at page 107 of the photo
album Exhibit A (the “Blue
Everest” bag wherein the dagga was found), with the alcohol on
the back of the bakkie at
the time he joined the other three
plaintiffs at Sechaba.
11.
In the meanwhile, Moloi, a police official in the South African
Police Service received a call
at 12pm, on the day of the arrest,
from an informant that liquor was sold from the bakkie of the
plaintiffs.
12.
The informant has become deceased before this trial commenced. In
terms of the Biyela - case hearsay
evidence is admissible for the
arrestor to form a reasonable suspicion. Moloi also did not want to
disclose the identity of the
informant to the prosecutor; this to
protect the informant.
13.
Moloi immediately requested the Crime Intelligence Unit (CIU) to put
the bakkie at Sechaba under
surveillance. The information from them
was that it seemed as if there was liquor being sold from the
vehicle. He accepted the
suspicion and observations of the
unidentified member of the CIU unit and acted according to that
information.
14.
The CIU unit of the police were not willing to expose the identity of
the undercover agent or
let her testify in the trial. This was to
protect her safety and their projects.
15.
Moloi compared the information from the informant to that of the
undercover unit and it was similar.
They observed the plaintiffs
sitting on the back of the bakkie with the alcohol. He called “10111”
for backup and they
converged on the scene.
16.
There were approximately 7 police officers. It was around 16h00. It
is the evidence of both Moloi
and Haarmeier that the back flap of the
bakkie was open, the alcohol displayed and the plaintiffs were seated
on the back. This
is disputed by the plaintiffs but was the evidence
on which the prosecuting authority had to make their decision and the
veracity
of which had to be tested in court.
17.
The bakkie was indeed loaded with alcohol and a later search produced
dagga, money in different
denominations and some torn notes, and
drinking glasses.
18.
One of the police officers on the scene indicated that the situation
at Sechaba were becoming
volatile. There were many people gathering
around the scene and for the safety of everybody; the public, police
and plaintiffs
they decided to move the plaintiffs and the vehicle to
the police station. It is also known protocol among police that
suspects
must be cuffed for their own safety and that of the police
when taken into custody.
19.
The police officers testified that there is a difference between
taking a person into custody
and arresting the person. They did not
arrest the plaintiffs there and then because they wanted to search
the bakkie and make further
inquiries. They did not arrest on a whim
but took care to gather information.
20.
At the police station the female officer located dagga packed in
“bankies” in the
bakkie. The officer testified that in
her many years of experience with the arrest of perpetrators for
dagga she came to know that
“bankies” are used for the
sale of dagga. This elevated the suspicion of illegal activities by
the plaintiffs. Crucial
is that not one of the plaintiffs wanted to
declare to whom the bag belongs that the dagga was found in. At the
time of the arrest
and when the decision was taken to prosecute this
issue was unexplained.
21.
The search of the bakkie occurred with the permission of the owner
and in his presence.
22.
The dagga was later weighted in the presence of Mashamaite and it was
found to be 96 grams. He
personally signed the “Dagga
Certificate” on 8 October 2016 (Exhibit B).
23.
The plaintiffs were arrested and their constitutional rights were
explained and certificates in
terms of section 35 of the Constitution
were handed to them which they signed. (Exhibits C, D, E and G)
24.
It is common cause that the plaintiffs were incarcerated until their
first appearance and that
the conditions in the police cells were not
good. They were traumatised by the experience. The plaintiffs were
detained from the
8
th
of October 2016 until the 11
th
of October 2016, whereafter they were granted bail of R400.00. The
48-hour incarceration limit was adhered to.
25.
Counsel for the defendants is correct where he pointed out in their
heads of argument that Mashamaite
stated during cross examination in
the trial:
15.1.26.
When defendant’s version put to him(sic), he stated that he
understands the position the police took. He further stated it is the
job of the police to do law and order.
15.1.27.
When the process of arrest, investigation and prosecution was put
to
him he agreed with it.
15.1.28.
He signed the dagga certificate and gave the alcohol slips to Cst
Raboroko.
26.
He is also correct that Mohlala made the same concession that the
police must do their work:
In re-examination he
testified the following:
25.1.
He understands that the police should investigate and they were
supposed to arrest him to investigate a
suspect.
27.
It is common cause, as the plaintiffs pleaded and testified, that
they were detained until 11
October 2016, when they were released on
bail. Plaintiffs pleaded that they were prosecuted until 16 March
2017.
28.
The evidence is that the Court struck the matter from the roll due to
unreasonable delays. According
to the evidence recorded the witnesses
were not at court. Numerous appearances occurred. It is incorrect
that the prosecutor withdrew
the charges on 16 March 2017. The J15
Charge Sheet (Exhibit T) indicates the matter was struck from the
roll.
29.
The plaintiffs were summoned to again appear in Court on 13 July
2017. This, on account of the
second defendant’s decision to
re-institute prosecution. After five more appearances, the plaintiffs
were discharged on 6
December 2017 in terms of
Section 174
of the
Criminal Procedure Act, 51 of 1977
.
30.
The prosecutor that testified did not want to continue with
prosecution but her senior instructed
prosecution after they
re-evaluated the evidence. They have a statutory right and obligation
to do so. The reason for the prosecutor’s
hesitance to
prosecute is that there were no eyewitnesses to the crimes.
31.
None of the witnesses for the defendants witnessed the sale of liquor
or dagga.
32.
The plaintiffs did not possess a licence to deal in liquor and could,
consequently, not produce
one at the scene or when they were formally
arrested or during the trial.
33.
The legal process of arrest and detention was complied with.
34.
The plaintiffs were represented by Legal Aid: South Africa and later
by privately mandated counsel.
35.
The statements of Captain Haarmeier, Sergeant Moloi and Constable
Raboroko depict a
prima facie
case. Their evidence during the
trial
in casu
caused
a prima facie
case. If they did
not act, they might have been accused of neglecting their duties in
the circumstances of the case.
36.
The dagga was found in the bakkie and the four plaintiffs arrested in
the bakkie was
prima facie
in possession of the dagga. They
denied knowledge of the dagga and the evidence had to be tested by
way of a trial. It is not probable
that not one of the plaintiffs had
knowledge of the dagga. It would not have been prudent for a
Prosecuting Authority to accept
the word of the accused in the
circumstances of the case.
37.
The sale or not of the liquor also had to be tried and tested by way
of a criminal trial. The
word of the plaintiffs could not just be
accepted in the face of the amount of liquor, the dagga, the
circumstances prevailing
at the scene, the drinking glasses and money
float that were indicative of distribution of the alcohol, the
information of the
informer, the information from the Central
Intelligence Unit and the nonsensical denial of the knowledge of the
dagga.
38.
The one plaintiff was a tavern owner and it was his business to sell
liquor. The likelihood that
the owners of the liquor will give
thousands of rands worth of liquor away free of charge seems highly
improbable and implausible.
The plaintiff kept the fact that he was a
tavern owner from the police.
39.
Vital is the pleadings of the first defendant dated 23 September 2019
in the case with which the
prosecuting authority went on trial and
represented the case against all the plaintiffs.
AD PARAGRAPH 8.1
7.1
The contents hereof is denied. The plaintiffs were requested to
accompany the police officers
to the nearest police station, being
the Mangaung Police Station, as it was too risky and dangerous to
conduct a search of the
plaintiff’s co-accused’s vehicle
where it was parked.
7.2
The plaintiffs were not placed under arrest at the scene, but were
placed under arrest once a
thorough search of the vehicle, with the
consent of the plaintiff’s co-accused, was conducted. Dagga and
copious amounts
of alcohol were found in the plaintiff’s
co-accused’s vehicle.
7.3
the plaintiff’s co-accused admitted that the vehicle with
registration number DZ 17 XC
GP belonged to him and, after the
voluntary search was conducted, the plaintiff’s co-accused
admitted that the bag in which
the dagga was found was his. He
thereafter signed a certificate acknowledging that the dagga was
weighed in front of him and that
it was 96 grams.
7.4
One of the plaintiff’s co-accused admitted to selling of the
liquor without a license.
7.5
The plaintiff and his co-accused acted with common purpose in that
they all had a hand in the
illegal sale of liquor and dagga.
40.
The judgment of the Court
a quo
that caused the finding in
terms of
section 174
of the
Criminal Procedure Act was
not placed
before this Court. The reason(s) for the finding was depicted in the
entrance by the prosecutor in the diary of the
docket and addressed
to the investigating officer (Exhibit L in this case).
2017/12/6
IO
174 on both counts for al
4 Accused.
Reasons
1.
SN1 Mr. Moloi conceded that he did not see the exchange.
2.
There were a lot of people around that had interaction with
the
bakkie.
3.
Conceded that for it could be for own (sic); we arrested him
solely
due to the fact that accused made admissions, but this was not in his
statement.
4.
Court found trial (sic) there was no evidence on which to convict
ito
the dealing in liquor case.
5.
Possession of dagga
·
Could not prove anyone had control due to the fact that
witnesses
conceded that a lot of people were there and only assumes it belonged
to the accused and was on the bakkie.
·
Capt Haarmeyer was consulted for the trial but her version
was also
different from that of the first witness & different from which
she wrote in her statement. She would not have assisted
the state’s
case.
·
Other eye witnesses were not provided to state to aid
the case even
though such was requested.
Matter was finalised
41.
To issue summonses or notices on 8 October 2016 would have been risky
because three of the plaintiffs
resided in Soweto and their addresses
were not confirmed. One of the plaintiffs misrepresented the fact
that he is the owner of
a tavern. The alcohol and dagga seized were
of substantial value and amounts.
42.
To conclude:
In order to
prove that the arrest was lawful, the defendants had to and did prove
that:
(i)
the arresting officer
was a peace officer;
(ii)
the arresting officer
entertained a suspicion;
(iii)
that the suspect to
be arrested committed an offence referred to in Schedule 1 (or in
this instance; in terms of
section 40(1)(h)
,
who is reasonably suspected of
committing or of having committed an offence under any law governing
the making, supply, possession
or conveyance of intoxicating liquor
or of dependence-producing drugs
,
…);
(iv)
the suspicion rested
on reasonable grounds.
43.
The case against the plaintiffs was not without merit on paper.
The evidence against
the plaintiffs were legally sufficient to justify prosecution.
[28]
The police and the prosecuting authority acted with reasonable and
rational discretion and cannot
be, under the circumstances, accused
of unlawful conduct.
[29]
The delay in the finalisation of the case and the conditions endured
in the police cells are
of grave concern but are not part of the
claims. Copies of the judgment must be forwarded by the Registrar of
this Court to the
Mangaung Station Commander: SAPS, Bloemfontein and
the Director of Public Prosecutions: Free State, Bloemfontein for
their attention.
[30]
ORDER
The actions based on
unlawful arrest and detention; and malicious prosecution (Claims 1 &
2) of all four plaintiffs are dismissed
with costs.
M
OPPERMAN, J
APPEARANCES:
For
plaintiffs:
ADVOCATE C ZIETSMAN
Magnolia
Chambers, Pretoria
Instructed
by:
Jacobs Fourie Attorneys, Bloemfontein.
For
defendants:
ADVOCATE K NAIDOO
Chambers,
Free State, Bloemfontein
Instructed
by:
State Attorney, Free State, Bloemfontein
[1]
Hereafter
referred to as the fourth plaintiff.
[2]
Paragraph
[36].
[3]
Or in this instance; read with the terms of
section 40(1)(h):
“…
who is reasonably suspected of committing or of having committed an
offence under any law governing the making,
supply, possession or
conveyance of intoxicating liquor or of dependence-producing drugs,
…”
[4]
Biyela
supra
and also see
Duncan
v Minister of Law-and-Order
1986
(2) SA 805
(A) at 818G – H.
[5]
Sekhoto
supra
at paragraphs [28] and [39] at 327b–c and 330e.
[6]
Sekhoto
supra
at
paragraphs [42] to [44] at 331
c–
332
a
.
[7]
Biyela
supra
at paragraphs [
33]
and [35].
[8]
Okpaluba, C.,
Reasonable
and probable cause in the law of malicious prosecution: A review of
South African and Commonwealth decision,
PERIPELJ 2013 (16)1 241- 279 at 241.
[9]
https://www.npa.gov.za/npa-code-conduct
accessed on 21 January 2023.
[10]
Supra
at 279. Also see
Mdhlovu
v National Director of Public Prosecutions
(677/2018) [2022] ZAMPMBHC 36 (24 May 2022).