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[2023] ZAECMKHC 74
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Mlatsha v Minister of Police (215/2017) [2023] ZAECMKHC 74 (13 June 2023)
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IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE
DIVISION, MAKHANDA)
Case No: 215/2017
In the matter between:
XOLISILE
MLATSHA
Plaintiff
And
MINISTER
OF POLICE
Defendant
JUDGMENT
BESHE J:
[1]
Plaintiff instituted action against the defendant claiming damages
arising from what he alleges was
wrongful arrest and detain by the
employees of the defendant.
[2]
Plaintiff pleaded that he was arrested at Grahamstown on the 12 May
2015 without a warrant. Thereafter
detained at the police station
from 12 May 2015 to 14 May 2015. He stood trial and was acquitted on
31 August 2015. The defendant,
through his employees maliciously set
the law into motion against him by laying a false charge of theft of
a motor vehicle against
him. He was arrested even though the police
had a warrant of arrest issued in the name of his brother
Siyamxolela
Mlatsha
. Plaintiff’s claim is for payment in the sum of
R480 000.00 as and for damages.
[3]
In his plea defendant denied that plaintiff’s arrest and
detention was unlawful. It was admitted
that the arrest occurred on
the date as alleged by the plaintiff. Further that it was without a
warrant based on the ground of
reasonable or probable cause that he
had committed an offence to wit possession of dagga in the presence
of a peace officer. This
after having obtained a warrant to search
the premises where plaintiff was arrested.
[4]
Two witnesses
Sergeant Sauli
and
Constable Zana
were
called in support of defendant’s case. Plaintiff was the only
witness to testify in support of his claim.
[5]
Sergeant Sauli’s
evidence was that as he was patrolling
in a police van with
Constable Zana
at extension 7 in Makhanda
on the 12 May 2015 when they were stopped by a male person who
pointed a house to them alleging that
drugs were sold therefrom.
Based on this information, they approached the local Magistrates
Court where they obtained a warrant
authorising them to search the
said premises being number 4[…] Extension 7. It is common
cause that the search warrant bore
Siyamxolela Mlatsha’s
name. Armed with the search warrant, they proceeded to 4[…]
Extension 7 where he observed there were two flats. They knocked
on
the door closest to the gate which door was open. Plaintiff who was
known to him came out and identified himself as the owner
of the
flat. He was the only person inside the flat. Having introduced
themselves, they showed him the search warrant and asked
if he had
any drugs inside the flat and whether they could search the place.
Plaintiff responded that he did not have any drugs
and that they
could go ahead and search the flat. They found dagga underneath a
chair not far from the door. His colleague
Constable Zana
found dagga in a plastic bag next to the wardrobe. They also found
dagga underneath the bed. Plaintiff was then placed under arrest
for
possession of dagga. After weighing the dagga in his presence at a
Tip Top butchery he was taken to the police station where
he was
locked up on a charge of possession of dagga.
[6]
During cross-examination, he confirmed that according to the
information, the owner of the house whose
name was given as
Siyamxolela
was the one selling drugs. He however insisted
that the person they found in possession of dagga was the plaintiff.
It also transpired
that the flat where plaintiff was found is the
only place that was searched. He also denied that there was a
Colonel
Van Roos
in their company and that there was forceful entry into
any structure in the premises. He could not explain why
Captain
Van Roos
deposed to a statement to the effect that plaintiff was
arrested in his presence. He testified that he is the one who
arrested
the plaintiff and there was no one else present in the
premises besides the plaintiff. The latter did not tell him he was
not
Siyamxolela
. He denied
Siyamxolela’s
girlfriend was present in the room and that she confirmed the room /
flat belongs to
Siyamxolela
.
Sergeant Sauli
asserted
that he arrested the plaintiff because he was found in possession of
dagga even though he is not the same person in respect
of the search
warrant was authorised and took the court through the wording of the
search warrant. Namely, authorising the holder
to search the
identified premises and to search any person found on or at such
premises and seize the drugs if found.
[7]
Constable Zana
by and large confirmed
Sauli’s
evidence regarding how they ended up in 4[…] Extension 7 Joza.
Adding that the informer had actually pointed out the flat
they ended
up searching after having obtained a search warrant. How plaintiff
confirmed he was the owner of the flat from which
he came out after
they had knocked on the door. He denied possession of any dagga and
gave them permission to search the flat.
As well as how they
proceeded to search the room and about what they found. He denied
that any force was used to gain entry into
any structure in the
premises when he was there. He denied that plaintiff was arrested on
a false charge of theft of a motor vehicle.
He also denied that
plaintiff said the room belonged to his brother and that his
brother’s girlfriend also confirmed that
or that plaintiff was
not home when they arrived and only found them there when he returned
from the shops. Or that they refused
to let him go to his room to
fetch his Identity Document.
Plaintiff’s
version
[8]
On 12 May 2015 he returned home from a nearby shop to find people
moving about inside the premises
of his parental home, in particular
in the area of his younger brother’s room. He established that
those were the police,
and they were arguing with his father. It
appears to be common cause this was at 4[…] Extension 7 in
Joza. He enquired about
what was happening. He told them who he was.
The police told him they found dagga in his room and showed him a
search warrant in
his younger brother,
Siyamxolela’s
name.
the police refused to go to his room as he suggested so that he could
get his Identity Document and show them who he was.
They insisted
they were arresting him. They did not show him what they allegedly
found in his brother’s room. He testified
that there were eight
policemen involved, amongst them was one
Van Roos
. After he
was placed in a police van, the police continued searching other
structures at his home. That the room in question was
his brother’s,
was confirmed by his brother’s girlfriend. Having been arrested
on 12 May 2015, he was kept in police
custody until the 14 May 2015
when he appeared in court. Plaintiff denied that he was told that he
was being arrested in connection
with a charge of theft of a motor
vehicle as pleaded in his particulars of claim. He also denied as
suggested in his particulars
of claim that the police had a warrant
of arrest for his younger brother,
Siyamxolela
. He testified
that the police did not warn him about his constitutional rights.
Asked how the police could have mistaken him for
his brother when his
name clearly appeared, is reflected in the notice of rights form as
well as his statement, he responded that
he was surprised that he was
arrested yet the document police bore his brother’s name. He
could not explain why if his brother’s
girlfriend was inside
the room where dagga was allegedly found she was not arrested.
[9]
The basis upon which it is contended on behalf of the plaintiff that,
the police had no justification
to arrest him is as it would appear
from his testimony:
The drugs, if found, were
found inside his brother’s room. He cannot be expected to know
what is kept therein. He could not
have had the necessary intention
to possess the drugs. Hence according to the police, he said he did
not have any drugs in his
possession when he was asked.
[10] Arguing
for the absolution of the defendant,
Mr Mpahlwa
submitted that
it matters not that the search warrant bore plaintiff’s
brother’s name because the search warrant provided
for the
search of the premises and persons therein. Which the police did.
Further that, had the dagga been found in the room in
which
plaintiff’s brother’s girlfriend was, she would have been
arrested. Further that does not make sense that the
police would let
go of her and arrest plaintiff who was not in the room where dagga as
found. It was submitted that the police
were justified in arresting
the plaintiff for committing the offence of possession of dagga in
their presence. (
Section 40
(1) (a)
of the
Criminal
Procedure Act 51
of
1977
) This section provides for an
arrest without a warrant of any person who commits or attempts to
commit any offence in the presence
of a peace officer.
[11] It
seems to me that to decide the matter one way or the other I must
determine whether there is evidence on a
balance of probabilities
that the place where the dagga was found belongs to the plaintiff or
not. This is the room in which dagga
weighing 11.800kg was found in
three different places as aforementioned.
[12]
Plaintiff denies he was found or emerged from his flat
when the police knocked on its door that was open. I do
not
understand his version to be that he was inside the said room but had
only visited same as it belongs to his brother not him.
Hence, I do
not think that decision in the matter of
S
v Gentle
[1]
,
to which I was referred by
Mr
Basson
,
his legal representative is of much assistance to him. But I take
note of the dictum therein that where it was held that there
was a
reasonable possibility that the appellant in that matter had no
knowledge of the negligible amount of dagga found in his
presence and
therefore lacked the required intention to possess the dagga. Had the
plaintiff admitted that he was inside the said
room which belonged to
his brother but was not aware there was dagga it would have been
different. The
Gentle
matter
is also distinguishable from the case under consideration because we
are not talking about a negligible amount of dagga but
11.800kg. Some
of which was under a chair not far from the door and apparently not
concealed. It is not common cause that the room
in question belongs
to plaintiff’s brother. According to defendant’s
witnesses, plaintiff told them it was his room
after he emerged from
inside the room.
[13] It
will be recalled that plaintiff pleaded that he was arrested on false
charge of theft of a motor vehicle.
That the police had a warrant of
arrest that was issued against his brother. That the police arrested
him even though he told them
Siyamxolela
whose name appeared
in the arrest warrant has his brother. It is common cause that the
search warrant (not arrest warrant) the
police had plaintiff’s
brother’s name. Granted he may have been mistaken to say it was
a warrant of arrest, probably
being a layperson. So, the description
of the warrant police had is of no moment since there is a logical
explanation for it. But
it transpired during his testimony that he
was not arrested on a charge of motor vehicle theft as pleaded.
.
[14]
In addressing the issue of the divergence between
plaintiff’s plea and evidence in this regard, it was submitted
that the court is not bound by the pleadings if a particular issue
was fully ventilated during the trial. It is trite that the
purpose
of pleadings is to define the issues between the parties and the
court. that it is impermissible for the party in particular
plaintiff
to plead one case and then seek to establish a different case during
the trial.
[2]
It is also trite
that pleadings are made for the court and not the court for pleadings
and therefore where a party has placed all
the facts before the court
and same have been fully ventilated there will be no justification
not to have regards thereto. Be that
as it may, it is noteworthy that
even though the claim was instituted after the plaintiff was
acquitted in respect of a criminal
case, in his pleadings he steered
clear of the real reason given for his arrest. Namely, the allegation
that drugs were found in
his room. In my view, this cannot be ignored
when assessing plaintiff’s version.
[15] It was
also argued against the run of plaintiff’s evidence that there
may have been confusion if he said
the room in question was his
because that was his parental home. But he denies that he was inside
the room that was searched by
the police. Same as the argument that
he would not have known that there were drugs in that room because he
was merely a visitor.
That was not his evidence. But that was not his
version, he denied he said that was his room.
[16] From
what has been said so far, it is clear that the versions presented by
the plaintiff and the defendant are
irreconcilable and mutually
destructive. Even though plaintiff’s version is not that clear
cut. The approach to be adopted
in such circumstances has been
suggested in a number of cases which include:
National
Employers’ General Insurance v Jagers
[3]
where
it was said:
“
It
seems to me, with respect, that in any civil case, as in any criminal
case, the
onus
can
ordinarily only be discharged by adducing credible evidence to
support the case of the party on whom the
onus
rests.
In a civil case the
onus
is
obviously not as heavy as it is in a criminal case, but nevertheless
where the
onus
rests
on the plaintiff as in the present case, and where there are two
mutually destructive stories, he can only succeed if
he satisfies the
Court on a preponderance of probabilities that his version is true
and accurate and therefore acceptable, and
that the other version
advanced by the defendant is therefore false or mistaken and falls to
be rejected.
”
SFW
Group Ltd & Another v Martell Et Cie & Others
[4]
where
it was stated:
“
[5]
On the central issue, as to what the parties actually decided, there
are two irreconcilable versions. So, too, on a number of
peripheral
areas of dispute which may have a bearing on the probabilities. The
technique generally employed by courts in resolving
factual disputes
of this nature may conveniently be summarised as follows. To come to
a conclusion on the disputed issues a court
must make findings on (
a
)
the credibility of the various factual witnesses; (
b
)
their reliability; and (
c
)
the probabilities. As to (
a
),
the court’s finding on the credibility of a particular witness
will depend on its impression about the veracity of the
witness. That
in turn will depend on a variety of subsidiary factors, not
necessarily in order of importance, such as (i) the witness’
candour and demeanour in the witness-box, (ii) his bias, latent and
blatant, (iii) internal contradictions in his evidence, (iv)
external
contradictions with what was pleaded or put on his behalf, or with
established fact or with his own extracurial statements
or actions,
(v) the probability or improbability of particular aspects of his
version, (vi) the calibre and cogency of his performance
compared to
that of other witnesses testifying about the same incident or events.
As to (
b
),
a witness’ reliability will depend, apart from the factors
mentioned under (
a
)
(ii), (iv) and (v) above, on (i) the opportunities he had to
experience or observe the event in question and (ii) the quality,
integrity and independence of his recall thereof. As to (
c
),
this necessitates an analysis and evaluation of the probability or
improbability of each party’s version on each of the
disputed
issues. In the light of its assessment of (
a
),
(
b
)
and (
c
)
the court will then, as a final step, determine whether the party
burdened with the
onus
of proof has succeeded in
discharging it. The hard case, which will doubtless be the rare one,
occurs when a court’s credibility
findings compel it in one
direction and its evaluation of the general probabilities in another.
The more convincing the former,
the less convincing will be the
latter. But when all factors are equipoised probabilities prevail.
”
[17]
It is trite that the
onus
rests
on the defendant to justify an arrest.
[5]
Has the defendant succeeded in discharging the
onus
resting
on him to show that the arrest of the plaintiff was justified? The
onus
rests
on the defendant to allege and prove the legal justification of the
arrest. Defendant contends that the reason for plaintiff’s
arrest was that he had committed an offence in the presence of the
arresting officer. The offence being possession of dagga. Evidence
was adduced in this regard. I do not understand plaintiff’s
evidence to dispute that the police found dagga in one of the
structures in the premises. I could not find any fault with the
evidence of defendant’s witnesses. During cross-examination
a
statement that was deposed to by a
Captain
Van Roos
was
drawn to their attention. The statement seemed to confirm plaintiff’s
evidence that he observed the two witnesses who
testified on behalf
of the defendant
Sauli
and
Zana
together
with other officers who included
Captain
Van Roos
inside
his premises.
Van
Roos
in
his statement states that on the same date as alleged by the
defendant’s witnesses the 12 May 2015 together with his
colleagues
from the Crime Prevention Unit visited plaintiff’s
home armed with a search warrant, having received information that
dagga
was sold in the premises. As a result of the search dagga was
found in the premises. The problem however is that
Sauli
and
Zana
deny
that they were attached to the same unit with
Van
Roos
or
that he was part of the crew that found drugs at plaintiff’s
house as a result of which he was arrested by
Sauli
.
Van
Roos
was
not called as a witness by any of the parties. Even though the search
was, according to
Van
Roos
,
conducted on the 12 May 2015 his statement was commissioned on the 27
May 2015. According to
Zana
and
Sauli
,
Van
Roos
was
no longer with the South African Police Service. The suggestion was
therefore that the defendant’s witnesses were not
speaking the
truth. For what is it worth,
Van
Roos’s
statement
seems to confirm defendant’s evidence about dagga having been
found in the premises. That the person in whose house
dagga was found
was arrested. It is common cause that plaintiff is the person who was
arrested on that day in the premises. I am
not persuaded that
Van
Roos’s
statement
affects the reliability or veracity of defendant’s evidence.
The evidence of the two witnesses was consistent and
coherent. They
did not contradict each other in any material respect. The dagga the
allegedly found in plaintiff’s room was
handed in by
Constable
Sauli
and
entered in the exhibits register. The arrest statement is deposed to
by
Sauli
.
[18] On the
other end of the spectrum, plaintiff’s evidence cannot be said
to have the same characteristics.
His case is far from being
consistent.
[19] The
case that the defendant came to answer was that the plaintiff was
wrongfully and unlawfully arrested on false
charge of theft of a
motor vehicle, even though the police had a warrant of arrest issued
in his brother’s name.
[20] It was
only in his evidence that he testified that dagga was found albeit in
his absence. He was told by the police
that they found dagga and
shown a warrant in his brother’s name. Presumably in a bid to
prove to them that he was not the
person with the name in the
warrant, he asked the police to take him to his room so that he can
show then his identity document,
but they refused. He also suggested
that the room in which dagga was found belonged to his brother and
the latter’s girlfriend
was inside the room. In argument it was
submitted that he was merely a visitor and could not have known that
there was dagga inside
that room because it was concealed. But it was
never his evidence that he was inside the room and the room belonged
to his brother.
It is also not clear why if his brother’s
girlfriend was inside the said room where 11.800kg of dagga was found
she was not
arrested. Nor was the owner of the house, plaintiff’s
father arrested.
[21] In all
the circumstances, I am satisfied that on a preponderance of
probabilities defendant’s version is
true and accurate and
therefore acceptable and that plaintiff’s version is false and
falls to be rejected.
[22] I am
satisfied that defendant’s evidence proves that the plaintiff
committed the offence of being in possession
of dagga in the presence
of peace officers
Zana
and
Sauli
. That therefore
plaintiff’s arrest was justified on the basis of
Section 40
(1) (a)
of the
Criminal Procedure Act
>.
[23]
Accordingly, plaintiff’s claim is dismissed with costs.
N G BESHE
JUDGE OF THE HIGH
COURT
APPEARANCES
For
the Plaintiff:
Adv:
A. F. Basson
Instructed
by:
MGANGATHO
ATTORNEYS
7
Somerset Street
MAKHANDA
Ref:
A. Mgangatho/Mlatsha/M12
Tel.:
073 524 3586 / 073 761 7751
For
the Defendant :
Adv:
M. Mpahlwa
Instructed
by:
STATE
ATTORNEY (GQEBERHA)
C/o
McCALLUM ATTORNEYS
87
Fidelity Building
MAKHANDA
Ref:
Mr M McCallum
Tel.:
046 – 622 2372
Date
Heard:
30
January 2023, 31 January 2023, 1 February 20203
Date
Reserved:
02/01/23
Date
Delivered:
06/13/23
[1]
1983 (3) SA 45
NPD.
[2]
See Kaliv
Incorporated v General Insurance Ltd
1976 (2) SA 179
D at 182A.
[3]
1984
(4) SA 437
ECD at 440 D-E.
[4]
2003
(1) SA II SCA at 14-15 paragraph 5.
[5]
Minister of
Safety and Security v Sekhoto and Another
2011 (1) SACR 315
SCA at
322.