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[2023] ZAFSHC 85
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Makhele v Minister of Police and Another (2617/2021) [2023] ZAFSHC 85 (13 February 2023)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 2617/2021
Reportable:
YES/NO
Of
interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
IN
THE MATTER BETWEEN:
TSHIDISO
JACOB MAKHELE
Plaintiff
and
MINISTER
OF POLICE
1
st
Defendant
THE
NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS
2
nd
Defendant
JUDGMENT
BY:
MPAMA, AJ
DATE
HEARD:
25,
26 & 28 OCTOBER 2022
DELIVERED ON:
The judgment was handed down electronically by
circulation to the parties’ legal representatives by email and
release to SAFLII
on 13 February 2023. The date and time for
hand-down is deemed to be 13 February at 15h00.
[1]
The plaintiff instituted action
against both defendants. As set out in the particulars
of claim
(POC), the plaintiff claimed damages arising out of unlawful arrest,
detention and malicious prosecution.
[2]
At the commencement of trial the
plaintiff withdrew the claim of malicious prosecution
against the 2
nd
defendant and the parties requested the court to stand down the issue
of costs for a later determination. I acceded to the request.
The
main issue remaining for adjudication is whether or not the arrest of
the plaintiff by the members of South African Police
Services and
subsequent detention was unlawful and if so the quantification of
damages as a consequence thereof.
[3]
The following issues are common
cause: The plaintiff was arrested by Constable Kantoro
Simon
Mapokoane, without a warrant in the early hours of 2 December 2020.
Constable Mapokoane was a peace officer acting within
the scope of
his employment. The plaintiff was arrested for, a Schedule 1 offence
in terms of the
Criminal Procedure Act 51 of 1977
as amended (CPA).
Subsequent to his arrest he was detained until his first appearance
in court on 4 December 2020 when he was released
on bail.
[4]
In
MINISTER OF LAW AND
ORDER and Others v HURLEY and Another
1986 (3) SA 568
(A) at 589 E-F
it was said:
“
... An arrest
constitutes an interference with the liberty of the individual
concerned, and it therefore seems 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.”
It
follows that the defendant has an onus to show on a balance of
probabilities that the arrest was lawful and justified.
[5]
The evidence of the defendant is
as follows: Constable Mapokoane testified that he was
with his two
colleagues, Constable Mavis Motloung and Constable Phadi in a marked
police vehicle patrolling at Thabanotsoane Village,
Tseseng in the
early hours of 2 December 2020. At approximately 00:30am a young
woman (the complainant) appeared being followed
by a male person. It
is not in dispute that the male person was the plaintiff and I shall
refer to him herein as such. The complainant
rushed towards the
police vehicle. He then stopped the vehicle and noticed that the
complainant was crying. The complainant reported
that she was raped
by the plaintiff. When the complainant reported the plaintiff was at
a distance of about 2-3meters (m) away
from the police vehicle and he
heard what the complainant was saying.
[6]
Constable Mapokoane testified
further that Constable Phadi opened the vehicle’s door
and
before he could say anything the plaintiff ran away. Together with
Constable Phadi they chased the plaintiff leaving the complainant
with Constable Motloung. The plaintiff ran down the hill until they
apprehended him next to certain dongas. The distance between
the
dongas and where the plaintiff was arrested was about 3 kilometers
(km). Together with Constable Phadi they walked back to
the vehicle.
As they were walking back to the vehicle they received a call from
Constable Motloung asking them about their whereabouts
and advising
that another vehicle was on its way from the police station to look
for them. They requested Constable Motloung to
drive the vehicle
towards the dongas.
[7]
Whilst still walking towards their vehicle another police vehicle
appeared. It was
Sergeant Zengele and Constable Mohapi’s
vehicle sent from the police station. He informed the plaintiff about
the reasons
for his arrest and explained his constitutional rights.
The plaintiff was transported in Sergeant Zengele’s vehicle. On
arrival
at the police station he opened a docket and charged the
plaintiff. He then completed a SAP 14. Constable Mohapi obtained the
complainant’s
written statement. He took the plaintiff to the
police cells. He denied that the plaintiff was arrested in the
presence of his
family.
[8]
During cross examination Constable Mapokoane testified that the
plaintiff was not
informed of the reason for his arrest at the
dongas. He further testified that due to the magnitude of the offence
he was unable
to release the plaintiff as he needed to go to court
for his release to be considered. Further cross examination bore
no fruit
as Constable Mapokoane stuck to his version.
[9]
Constable Motloung testified and in essence repeated what was
testified to by Constable
Mapokoane regards how they were approached
by the complainant. Further, she testified that that she remained
behind in the police
vehicle with the complainant. The complainant
was still crying. After they had disappeared she called their
cellphones and there
was no response. Not knowing what had become of
her colleagues she contacted the police station and reported that her
colleagues
were missing.
[10]
A police van was dispatched from the police station to search for
them. Once again she tried
to call her colleagues on their cellphones
and this time she received a response. Constable Mapokoane informed
her that they were
coming from the dongas and were on their way to
the vehicle with the plaintiff. Sergeant Zengele and Constable Mohapi
arrived.
Constable Mapokoane and Phadi appeared with the plaintiff.
The plaintiff was transported in the vehicle driven by Sergeant
Zengele
and the complainant in their vehicle. At the police station
the complainant was attended by Constable Mohapi and the plaintiff
by
Constable Mapokoane.
[11]
The last witness for the defendant was Warrant Officer Matataisi
Albert Molefe, a retired police
officer and an investigating officer
of the rape charges against the plaintiff. At the time of the arrest
of the plaintiff he was
attached to Family Violence, Child
Protection and Sexual Offences Unit within South African Police
Services. His unit
investigated all rape cases hence the docket was
referred to his unit. He received the docket on 3 December 2020, at
about 16h00
from Tseseng Police Station. The docket had been opened
on 2 December 2020. He testified that the normal procedure was for
the
docket to be referred immediately to their unit after it has been
allocated a case number and that he does not know why it took
some
time for this one to be referred to their unit.
[12]
Warrant Officer Molefe testified further that when he received the
docket the complainant’s
statement was already filed. As a norm
he needed to visit complainant in order to continue with the
investigations. He found the
complainant’s address in the
docket and proceeded to this address to see the complainant. At this
address the complainant
was unknown. He asked around and even went to
a nearby police station in search of the complainant, but all in
vain. About to give
up he received some information that the
complainant’s mother was residing at Haresethunya Village and
he proceeded to this
address.
[13]
On arrival he met with the complainant’s mother who informed
him that the complainant was
a sex worker, using drugs and was no
longer staying at home. He obtained a written statement from the
complainant’s mother
and filed it in the docket. Later on he
proceeded to the police station and obtained the plaintiff’s
warning statement. He
knew that because the plaintiff was facing an
offence falling within the ambit of Schedule 6 his release from
police custody was
to be decided only by the court. He took the
docket to the Senior Public Prosecutor (the SPP) and
informed the SPP that
he is unable to get hold of the complainant and
proposed that the plaintiff should be released on warning whilst he
is still searching
for the complainant.
[14]
The plaintiff testified and called one witness, Mr P [....] M [....]
M [....] 1. The evidence
of the plaintiff is that on 2 December 2019,
he was a passenger in his friend’s vehicle, Mr M [....] 1. The
plaintiff is
an educator by profession. At about 15h00 they met the
complainant who was hitchhiking. Mr M [....] 1 stopped and offered
the complainant
a lift. They conversed with the complainant and since
they were drinking some liquor they offered some liquor to her. The
complainant
informed them that she was not drinking liquor, but there
is something she was smoking. The complainant further informed them
that
she was a sex worker and offered her services to him. He paid
her R200.00 for her services. They travelled with the complainant,
and along the way the complainant requested that they should go to a
certain house. They proceeded to this house, the complainant
got in
and returned back with a substance and she started sniffing it in the
car.
[15]
The plaintiff testified further that they proceeded to his place with
the complainant still being
driven by his friend. When they were
nearing his residence his friend dropped them off. He proceeded with
the complainant and next
to a certain corner had consensual sex with
the complainant. When they were finished they proceeded to his place.
The complainant
started walking fast and took a direction of a
vehicle that was approaching. He proceeded to his place and when
about 500m away
he was approached by two males who arrested him. He
was not told why he was being arrested. He was taken to the police
station
and no rights were explained to him. At the police station a
form with his rights was completed. Later on he was taken to the
cells
and detained. On the following day he was transferred to
Phuthadithjaba police cells where he was kept until the following
day.
He was taken to court on 4 December 2020. He appeared in court
and he was remanded in police custody until 10 December 2020,
for a bail application.
[16]
Whilst at the holding cells in court he approached Mr Chabangu, an
attorney who facilitated that
he be taken back to court. When he
reappeared in court he was released on warning. He testified further
that he was unlawfully
detained as the complainant was a prostitute
and he had paid her for her services. The plaintiff in addition
testified on how the
arrest and rape allegations affected him as a
school teacher. His dignity had been adversely affected and his
colleagues had lost
some respect for him. He had suffered damages to
the tune of R400 000.00 for the unlawful arrest and further
detention.
[17]
Mr M [....] 1 corroborated the plaintiff’s version from the
time he offered a lift to the
complainant to when he dropped-off the
plaintiff and the complainant on the street leading to plaintiff’s
place. He testified
that he does not know what happened afterwards.
He learnt about the plaintiff’s arrest later on.
[18]
The defendant contended that the arrest without a warrant was
justifiable and the police acted reasonable
and the plaintiff
contended that it was the opposite.
[19]
The prism through which liability for unlawful arrest and detention
should be considered is the
constitutional right guaranteed in
section 12(1) not to be arbitrarily deprived of freedom and security
of the person. The right
not to be deprived of freedom arbitrarily or
without just cause applies to all persons in the Republic. See
MAHLANGU and ANOTHER v MINISTER OF POLICE
2021 (2) SACR 595
(CC) at para 25
.
[20]
Section 40(1) (b) of the CPA provides:
“
A peace officer
may, without warrant, arrest any person whom he reasonably suspects
of having committed an offence referred to in
Schedule 1, other than
the offence of escaping from lawful custody.”
[21]
In
DUNCAN v MINISTER OF LAW AND ORDER
1986
(2) SA 805
(A) at 818G-H
it was held that
the jurisdictional facts for a section (40) (1) (b) defence are that:
(i)
The arrestor must be a peace officer;
(ii)
The arrestor must entertain a suspicion;
(iii)
The suspicion must be that the suspect committed an offence referred
to in Schedule 1;
(iv)
The suspicion must rest on reasonable grounds.
[22]
The test whether a peace officer ‘reasonably suspects ‘a
person of having committed
an offence within the ambit of s 40(1) (b)
is an objective one. The test is not whether a police believes that
he has reason to
suspect, but whether, on an objective approach, he
in fact has reasonable grounds for his suspicion. See
MINISTER
OF SAFETY and SECURITY v SEKHOTO and ANOTHER
2011 (1) SACR 315
(SCA)
para 6.
[23]
Once the arresting officer has established the required suspicion he
will then be vested with
a discretion to arrest and such discretion
must be exercised rationally.
[24]
The question is whether the defendant discharged the onus of proving
on a balance of probabilities
that the arrest of plaintiff was
lawful. The test is whether the arrestor on the facts presented had
formed a reasonable suspicion
that the plaintiff had committed an
offence falling within Schedule 1 of the CPA and whether he exercised
his discretion properly
when arresting the plaintiff. It was
submitted on behalf of the defendant that the arrest of the plaintiff
was justified and the
arresting officer correctly exercised his
discretion. In addition, it was contended that the arrest of the
plaintiff in the middle
of the night after the complainant had made
the accusation justified the arrest.
[25]
It is not in dispute that: the complainant disappeared without a
trace after she laid charges
rape against the plaintiff. The
complainant’s mother in her statement to the police reported
that the complainant was a sex
worker and that she provided a false
address to the police. However, the court does not look at the now
position in determining
whether the arrestor was justified. It must
look at the circumstances that prevailed at the time of the arrest.
The complainant
in the middle of the night made rape allegations
against the plaintiff. When she approached the police the complainant
was crying
and without any hesitation pointed out the plaintiff as
her assailant. It did not end there, she made a written statement to
the
police and reported in detail how she was raped by the plaintiff.
[26]
The plaintiff denied that he ran away from the police, however the
evidence of Constable Motloung
flies against his face. She testified
that because she was worried when her colleagues disappeared she
sought reinforcement at
the police station and a vehicle was
dispatched. The presence of a second vehicle was never disputed
by the plaintiff. This
shows without a hint of doubt that Constable
Motloung got worried and decided to act when her colleagues went
missing running after
the plaintiff hence assistance from the police
station was requested. The plaintiff by running away from the police,
in the absence
of any explanation strengthened the suspicion on the
part of police.
[27]
The evidence of Constable Motloung is that when the plaintiff was
asked to identify himself he
refused to have any conversation with
Constable Mapokoane. This evidence also stands unrebutted. The
plaintiff thwarted any
attempts by the police to have a discussion
with him regards the allegations at the time of arrest.
[28]
It would be incongruous to expect the police not to act in the manner
they did in the circumstances
of this case in order to bring the
plaintiff to justice. The police cannot be faulted as they exercised
their discretion reasonably.
Failure to act in the manner they did
would be an abdication of their responsibilities.
[29]
I am satisfied that the defendant was able to discharge the onus on a
balance of probabilities
that the arrest of the plaintiff was not
unlawful.
[30]
The last issue to be decided is costs (including the costs of the
second claim withdrawn by the
plaintiff). The award of costs is
always at the discretion of the court. The general rule in litigation
is that costs ‘follow
the event. A successful party must be
awarded costs unless the court considers it appropriate to make a
different order. I find
no reasons to deviate from the general rule.
[31]
In the result the following order is made:
31.1 The plaintiff’s
claim is dismissed with costs.
31.2 The plaintiff is
ordered to pay the defendant’s costs in respect of second Claim
which was withdrawn at the commencement
of proceedings.
L.
MPAMA, AJ
On
behalf of the plaintiff:
Adv. C.
Zietsman
Instructed
by
: Loubser Van
Wyk Inc
Pretoria
c/o Jacob's Fourie Inc
Bloemfontein
On
behalf of the defendant
:
Adv. K. Motshabi
Instructed
by
: Office of
the State Attorney
Bloemfontein