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[2023] ZAECMKHC 123
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Hufkie v Minister of Police - Appeal (CA98/2023) [2023] ZAECMKHC 123 (7 November 2023)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE
DIVISION, MAKHANDA)
NOT REPORTABLE
Case no: CA98/2023
In
the matter between:
DESNAY
HUFKIE
Appellant
and
MINISTER
OF POLICE
Respondent
JUDGMENT
Govindjee J
Background and issue
[1]
A blue Proton vehicle was hijacked by
Warren Rademeyer on 25 February 2015 in Summerstrand, Gqeberha.
Constables Blunden and Ntamo
observed the vehicle in Schauderville,
soon after receiving a radio control report of the hijacking. They
attempted to stop the
vehicle by using their vehicle’s sirens
and lights, but, instead of slowing down and stopping, it sped away.
A chase ensued
and Constable Blunden, an employee of the respondent,
discharged shots in the direction of the hijacked vehicle.
[2]
The
appellant was a passenger in the hijacked vehicle at the time of the
shooting. She was shot in the abdomen and instituted a
delictual
action for damages against the respondent. The appellant averred that
Constable Blunden violated her constitutional rights
and acted
recklessly and / or negligently by discharging several shots with his
firearm in public, without having due regard for
the safety of the
general public, thereby contravening s 49(2) of the Criminal
Procedure Act, 1977
[1]
(the
‘CPA’).
[3]
The respondent pleaded that the appellant
and other co-accused persons, who were suspected of having hijacked a
motor vehicle, had
unlawfully attacked the police by shooting at them
first. The police officials concerned had believed that they were in
physical
danger and had used the necessary, commensurate, force to
repel the attack. In the alternative, the respondent pleaded that the
police officers had reasonable grounds to suspect that the appellant
was involved in a hijacking case, as she was inside a hijacked
vehicle. They had lawfully attempted to arrest the appellant and,
once she attempted to prevent and / or escape the arrest, reasonable
force had been used to secure the arrest.
[4]
The
appellant’s claim was dismissed by the Regional Court, with
each party to pay their own costs. That court adopted the
usual
approach to resolving mutually irreconcilable versions, based on
findings as to credibility, reliability, and the probabilities.
[2]
The magistrate concluded that Constable Blunden had honestly
maintained his version throughout his testimony, without
embellishment.
By contrast, the appellant had been evasive and had
testified in a manner that was, at times, materially different from
the version
put to Constable Blunden on her behalf. The court
concluded that these material contradictions were indicative of the
appellant’s
misrepresentation as to the events of the evening
in question. She had also been vague as to the reason for the
hijacker’s
sudden desire to alight from another vehicle in
which she had been travelling with her boyfriend immediately prior to
the hijacking.
On the probabilities, the court held that the
appellant had been part of the planning and execution of the
hijacking. Applying
decisions of the SCA and Constitutional Court, an
outdated version of s 49 of the CPA, and academic commentary, the
court held
that the respondent’s version that occupants of the
hijacked vehicle had fired shots, requiring retaliation, was more
probable,
so that the actions of the police were justified. As will
become apparent, it is this aspect that is crucial for determining
this
appeal.
[5]
Various grounds of appeal were advanced by
the appellant. These include misdirections in respect of the
magistrate’s summary
and evaluation of the evidence, including
the way the appellant’s testimony had been assessed, the
credibility findings in
favour of Constable Blunden, and the
conclusion arrived at on the probabilities. It was submitted that the
contents of a shooting
incident report, contradicting Constable
Blunden’s evidence, had been ignored, along with the evidence
tendered by a fingerprint
expert. Constable Blunden had contradicted
himself, and his evidence had also been gainsaid by the testimony of
Warrant Officer
Botes. The magistrate had erred by concluding that
the appellant had played a part in the hijacking and in the
assessment of the
degree of force used by Constable Blunden.
[6]
The appellant, correctly in my view,
conceded during argument that the use of deadly force by Constable
Blunden, with reference
to the proper understanding of that notion in
terms of s 49(2) of the CPA, would be proportionate and justifiable
if the trial
court’s assessment of the evidence, particularly
in respect of whether the police’s shooting was in retaliation,
was
correct. The converse also applies. Interference with the trial
court’s evidentiary assessment in respect of whether the
police’s shooting was retaliatory would result in the appeal
succeeding. Whether or not this court should interfere with the
findings of fact of the trial court in respect of the shooting
incident is the issue to be determined, bearing in mind the onus
on
the respondent to justify the shots fired by its employees. Put
differently, the main question to be addressed is whether the
appellant has convinced this court that the trial court erred in
accepting Constable Blunden’s evidence that he fired shots
in
retaliation to shots emanating from the hijacked vehicle.
The trial court’s
factual findings: A deferential approach?
[7]
It
is trite that a court of appeal will hesitate to interfere with the
factual findings and evaluation of evidence by a trial court,
particularly if the factual findings depend upon the credibility of
the witnesses who testified at the trial.
[3]
The following explanation for such deference, emanating from foreign
law, has been quoted with approval by the Constitutional Court:
[4]
‘
Not
to have seen the witnesses puts appellate judges in a permanent
position of disadvantage as against the trial judges, and, unless
it
can be shown that [the trial judge] has failed to use or has palpably
misused their advantage, the higher court ought not to
take the
responsibility of reversing conclusions so arrived at, merely on the
result of their own comparisons and criticisms of
the witnesses and
of their own view of the probabilities of the case.’
[8]
Even
in drawing inferences, it is the trial court that is considered to be
in a better position than the appellate court, in that
it may be more
able to estimate what is probable or improbable in relation to the
particular people observed at the trial.
[5]
An appellate court will only interfere where the trial court
materially misdirected itself in so far as its factual and
credibility
findings are concerned.
[6]
As was held in
S
v Francis
:
[7]
‘
The
powers of a court of appeal to interfere with the findings of fact of
a trial court are limited. In the absence of any misdirection
the
trial court’s conclusion, including its acceptance of a
witness’s evidence, is presumed to be correct. In order
to
succeed on appeal, the appellant must therefore convince the court of
appeal on adequate grounds that the trial court was wrong
in
accepting the witness’s evidence – a reasonable doubt
will not suffice to justify interference with its findings.
Bearing
in mind the advantage which a trial court has of seeing, hearing and
appraising a witness, it is only in exceptional cases
that the court
of appeal will be entitled to interfere with a trial court’s
evaluation of oral testimony.’
[9]
This
is not to overstate the deference to be afforded to the trial court’s
findings. This court is duty-bound to overrule
factual findings of
the trial court so as to do justice to a matter
if
it emerges from the record that the trial court misdirected itself on
the facts or that it came to a wrong conclusion.
[8]
[10]
Whether
there was a misdirection of fact by the trial court requires
consideration of the reasons given for that court’s decision.
Reasons that are either on their face unsatisfactory, or shown by the
record to be such, would suffice. There may also be a misdirection
of
fact where, although the reasons as far as they go are satisfactory,
the trial court is shown to have overlooked other facts
or
probabilities.
[9]
Was there a material
misdirection of fact?
[11]
The trial court’s conclusion was
based mainly on its assessment of the conflicting versions of
Constable Blunden and the appellant,
with particular reliance upon
credibility findings in favour of Constable Blunden. The appellant’s
version was assessed as
being replete with inconsistencies while
Constable Blunden’s version, including that shots had been
fired by the police only
in retaliation, was found to be honest.
[12]
There appears to be no misdirection in
respect of both key credibility findings. This is because there are
various improbabilities
and contradictions in the appellant’s
version in respect of material matters, emanating from the record of
proceedings. As
will be illustrated, her version of events is also
unsynchronised with the probable timeline of events, casting further
doubt upon
the veracity of her testimony in respect of the shooting.
[13]
The appellant offered a vague version of
her movements on the evening in question, and appears to have been
particularly flustered
when questioned by the presiding officer. On
the version which appeared during that questioning, she and her
boyfriend, Charles
Harper, had spent the afternoon together with
friends, using Harper’s father’s vehicle and socialising.
It was dark
by time they ‘went to get Warren’. When asked
if the arrangements were made telephonically, the appellant indicated
that ‘he just came to us’ and then ‘we did not know
that we will meet him along the road’. She then reiterated
that
‘…we did not go to pick him up. We found him along the
road.’ Rademeyer requested to accompany them, with
no purpose
in mind, and they drove around together, with no apparent destination
in mind. For an unexplained reason, and at a time
the appellant could
not recall, the three then went to ‘sit’ at her house and
enjoyed themselves while listening to
music. From there they
proceeded to the lake and then to Summerstrand.
[14]
The appellant added that it was dark when
she, Harper and Rademeyer were in Summerstrand together. They spent
‘an hour or
two hours’ there. During at least part of
that time, she and Harper walked on the beach near the Pier while
Rademeyer remained
in the vehicle. They returned and drove around
with him on their way home. Whilst still driving around Summerstrand,
Rademeyer,
who had drugs in his system, indicated that he wished to
alight from the vehicle. When pressed as to why Harper and the
appellant
had allowed him to do so, on his own, late at night and far
from home, the appellant testified as follows:
‘
Ms
Hufkie: Charles said he must get off – he can get off because
Charles does not want him [to] drive his vehicle.
Court: I beg your pardon.
Ms Hufkie: Charles said
he must get off if he wants to get off. Because [he] cannot be angry
if Charles refuses for him to drive
his vehicle.
Court: Now when did that
happen?
Ms Hufkie: At [the lake]
after he asked if he cannot drive Charles’ vehicle and Charles
said no.
Court: So you say now
Warren was angry at the lake.
Ms Hufkie: I am not
saying he was angry but I also do not know.
Court: So you do not know
why Warren wanted to alight from the vehicle?
Ms Hufkie: No.
[15]
The improbabilities of aspects of this
version are immediately apparent. To that must be added the various
material inconsistencies
between the appellant’s version in
response to the presiding officer’s questions, compared to her
earlier testimony,
and when considering the version put to Constable
Blunden by Mr
McKenzie
on behalf of the appellant.
[16]
The appellant testified during her
examination-in-chief that, while driving around in Summerstrand,
Rademeyer ‘said we must
drop him … when we got to
flats’. During cross-examination, she was unable to recall that
they had in fact dropped
him off next to the vehicle that was
subsequently hijacked, vaguely adding that ‘I saw a small
vehicle but the street was
full of [vehicles].’ She then
testified that she had not seen the hijacked vehicle. Leaving aside
the conflict between this
version and the complainant’s
statement to the contrary, at no stage was there any mention of
Harper instructing Rademeyer
to alight or an issue about whether
Rademeyer could drive his vehicle. The appellant led the court to
believe that Rademeyer had
simply requested to be dropped off at a
random moment while they were in Summerstrand, after which the
appellant and Harper continued
to drive around until they were
running out of petrol and decided to return home. She could not
recall the time that elapsed from
dropping Rademeyer until they
arrived home.
[17]
The description of what occurred then is
also significant. The appellant’s version during her
cross-examination was that Rademeyer
was in their street with the
hijacked vehicle when they arrived there. He advised them that it was
his friend’s vehicle.
Despite having dropped him off outside
flats in Summerstrand a few minutes previously, this did not appear
to arouse any suspicion
whatsoever. From there the three, along with
another individual, proceeded to the latter’s home in
Schauderville. The appellant
watched television while the others
smoked mandrax. All of this occurred prior to the shooting incident.
[18]
In addition to the inherent
improbabilities, the appellant’s version is vastly different,
in material aspects, from what was
put to Constable Blunden by her
attorney, who drew from a written statement from Harper which was
included as part of the record:
‘
And
then plus minus, the plaintiff will come and testify plus minus 8 o’
clock he was, she was with her boyfriend, Charles
Harper on that
night and they were in Summerstrand with Warren Rademeyer …
while they were driving in Summerstrand Warren
told him to stop next
to a blue vehicle because he wanted to get out. It was the
complainant’s vehicle. And he [Harper]
could see that there was
a white lady in the vehicle … then the next moment then Warran
went to this lady and both the plaintiff
and Charles did not take any
note of what he was doing and as Warren was saying that he wanted to
get off the vehicle they drove
off
…
Later that night Charles
parked the vehicle at Skuda Street. And he was on his way to, he
walked to take his girlfriend. As they
were walking then they came
here comes Warren with the with a blue vehicle. Now at that stage
they did not know. They did not put
two and two together …
Warrant told them to get into the car, take a drive with them and
they both got into the vehicle.
There was another passenger in the
vehicle with him sitting in front. So they got into the back (sic).’
[19]
Inherent improbabilities and contradictions
aside, the appellant’s slow-moving version of events described
in court is inconsistent
with the common cause facts and other facts
that may be accepted as relevant to the shooting incident. Based on
the complainant’s
statement, it may be accepted that the
hijacking occurred at approximately 22h30. Constable Blunden’s
uncontested evidence
was that he and his partner spotted the hijacked
vehicle within a few minutes after radio control reported the
incident. He confirmed
the vehicle’s description with radio
control and, as the trial court noted, was advised that the suspects
who had hijacked
the vehicle were armed. Although he testified that
the complaint was received after 21h00, his written statement
reflects that
this occurred at approximately 22h41, which accords
with his testimony that he and his partner had spotted the vehicle
shortly
after the complainant’s report was relayed over radio.
Constable Ntamo’s affidavit repeated that time and Warrant
Officer
Botes, the investigating officer, testified that he met the
complainant at the Humewood Police Station within an hour of that
time,
at 23h38, by which time she was already in the process of
making a statement.
[20]
The appellant testified in a manner that
was materially different from the version put on her behalf, both in
respect of what occurred
at the time Rademeyer alighted from Harper’s
vehicle and as to what occurred when they met him thereafter. This
warranted
the conclusion that she had misrepresented the events in
question. Her version was improbable and the adverse credibility
findings
are unassailable. The probabilities, supported by Warrant
Officer Botes’ testimony as to his investigation, favour the
conclusion
that the appellant and Harper dropped Rademeyer alongside
the hijacked vehicle in Summerstrand. They subsequently met with
Rademeyer,
now driving the hijacked vehicle, outside Harper’s
home in Korsten soon after the hijacking took place, and accompanied
him
knowing that he had hijacked that vehicle. While Constable
Blunden consistently maintained his version in a seemingly honest
manner,
the appellant was indeed evasive, particularly in respect of
what occurred inside the hijacked vehicle from the time when the
police
used their vehicle’s lights and sound to attempt to
bring it to a halt, until it eventually crashed and stopped. As the
trial
court noted, had Rademeyer, the driver of the vehicle, stopped
before being chased by the police, the shooting would not have been
necessary.
[21]
While the trial court’s credibility
findings are an important component of determining the matter, they
are not on their own
determinative. In arriving at its conclusion,
the trial court failed to refer to various aspects of the evidence
led. There are
three grounds of appeal that relate to this perceived
shortcoming, each of which require consideration.
Evidence ignored
[22]
The first ground is that expert fingerprint
evidence was ignored. That evidence indicated that six sets of
fingerprints were taken
from the hijacked vehicle. The magistrate
took a dim view of the relevance of the evidence from the outset and
the appellant’s
attorney expressly indicated that he would
argue that the evidence was completely irrelevant, only for the trial
court’s
failure to refer to that evidence to be a point taken
on appeal. That aside, the evidence is, at best for the appellant,
neutral,
and counsel for the appellant rightly did not pursue the
matter.
[23]
The second ground is the contents of the
shooting incident report, alleged to contradict Constable Blunden’s
evidence. The
basis for this is the following summary of the shooting
incident contained in this report:
‘
Members
were chasing a hijacked vehicle in Gelvandale area and suspects
didn’t want to stop when they were instructed to stop
by the
police. Suspects started to shoot police and police fired back. Two
(2) suspects injured, One (1) suspect fled One (1) suspect
arrested
on scene.’ (sic.)
[24]
Ignoring the reference to the police
shooting in retaliation, this extract is linked to the third ground,
namely that the trial
court ignored material contradictions in the
evidence of Constable Blunden and Warrant Officer Botes. The main
point of contention
is the number of suspects inside the hijacked
vehicle at the time of the shooting. Constable Blunden’s
testimony was that
there had been six suspects who alighted from the
hijacked vehicle once it hit a pole and came to a standstill during
the chase.
Three of those suspects had run in different directions
and managed to escape. This version coincided with both Constable
Blunden
and Constable Ntamo’s written statements. Warrant
Officer Botes’ evidence, corresponding with his written
statement,
was that Constable Blunden had told him that there had
been five suspects, and that two had run away. The commander’s
shooting
report, however, only made reference to one suspect fleeing
the scene.
[25]
Although the trial court failed to deal
with this discrepancy directly, it is apparent that it ultimately
accepted Constable Blunden’s
version that three of the six
suspects had fled when the hijacked vehicle had come to a stop, and
that two of the rear passengers
had fired approximately six shots
towards the police vehicle from each of the rear windows.
[26]
An
appellate court should not seek anxiously to discover reasons adverse
to the conclusions of the trial court. This is because
it must be
accepted that no judgment can ever be perfect and all-embracing.
Failure to mention an aspect does not necessarily imply
that that
dimension was not considered.
[10]
While these principles may be noted, the trial court must be
criticised for failing to have to have expressed itself on various
other aspects of the evidence adduced, including the contradictions
in respect of the number of suspects who escaped the scene,
the
weight to be attached to Constable Ntamo’s statement and the
weight to be attached to Lieutenant-Colonel Meiring’s
evidence.
Failing to do so has deprived this court of the opportunity to
consider the trial court’s assessment of these matters,
and
their effect on the overall probabilities. Instead, this court is
obliged to undertake that exercise absent the various benefits
of
observing the witnesses first-hand, and with no sense of the trial
court’s impressions as to the veracity of that evidence.
[27]
The discrepancies in the number of suspects
reflected in police records of the incident must be considered
together with the other
available evidence. The pivot of the
respondent’s case was the testimony of Constable Blunden, who
was the driver of the
police vehicle and the person who explained how
the police returned fire. That explanation was, correctly in my view,
assessed
as cogent and consistent by the trial court.
[28]
There are various reasons for this
conclusion. Constable Blunden’s version finds a modicum of
support when considering the
accepted evidence that the vehicle was
reported as hijacked with the aid of a firearm. It must also be noted
that the shooting
incident occurred during the midst of a high-speed
chase which ran for between two and three kilometres. That distance
offers a
plausible explanation why any spent cartridges would not
have been found, despite a search, bearing in mind the evidence that
some
firearms do not release cartridges. The accepted position was
that the hijacked vehicle was proceeding recklessly, its driver under
the influence of drugs. The police vehicle was in pursuit, with the
distance varying from time to time, the closest point being
approximately 12 metres away. Constable Blunden explained,
during cross-examination, that, from what he could see, the persons
that shot at the police vehicle had ‘just put their hands out
with the firearms out and was shooting at the back towards
us’.
This explained why there was no gunshot residue inside the vehicle.
The evidence that it was not unusual for untrained
civilians to miss
their targets when involved in high-speed chases or shooting
incidents, even when only a short distance apart,
is equally
believable when these circumstances are given proper consideration.
The probabilities of that outcome are enhanced by
the speed involved,
the direction in which the civilians faced when they shot at the
police, their likely lack of training and
the way they did so, simply
putting their hands outside the rear vehicle windows while shooting.
As for Constable Blunden’s
candour, one needs to look no
further than his persistence, during cross-examination, as to the
likely existence of a shooting
incident report, even without knowing
whether its contents would favour his version of events. That report
was sourced as a direct
result of his testimony and formed the basis
of further cross-examination.
[29]
While Constable Frieslaar did not testify,
the appellant relied on his primer residue report in support of her
claim, and that report
was accepted into evidence. Warrant Officer
Botes confirmed that Constable Frieslaaar had been on the scene of
the shooting before
him. Part of Constable Frieslaar’s report
is a written summary of the case, dated 26 February 2015. The summary
refers specifically
to a vehicle hijacked by ‘+- six suspects’
and that ‘suspects shot at the SAPS members and the members
shot back
at the suspects’. That, together with Warrant Officer
Botes’ own statement and recollection, puts paid to the
reference
to only one person escaping, contained in the shooting
report. That reference is anomalous and does not accord with the
overall
probabilities. Considering all the evidence, including the
positive credibility findings in favour of Constable Blunden, the
probabilities
favour his evidence that six suspects were travelling
in the hijacked vehicle. In any event, whether five or six suspects
were
travelling in the hijacked vehicle, the real question is whether
the two or three who managed to run away had fired shots towards
the
police vehicle, from the rear corner seats, during the car chase.
[30]
Constable Blunden’s version of events
on that score is supported by both Constable Ntamo’s statement
accepted into evidence,
and by the testimony of Lieutenant-Colonel
Meiring, who was the Gelvandale SAPS relief commander. He testified
as to his movements
that evening, including what was conveyed by
radio control, and that he was new to the area. His evidence explains
his reasons
for a three to four second conversation he had with a
person he observed standing on the stairs in Highfield Road. That
person
had allegedly witnessed a part of the chase and informed him
that suspects had been shooting ‘back’ at the police.
This accords with his evidence that his first question to Constable
Blunden, upon meeting him at the scene, was whether a police
vehicle
or official had been shot. Considering the hijacking situation at
hand, the probabilities support his explanation for not
taking a
statement from the witness, instead proceeding swiftly to the scene.
[31]
These pieces of evidence offer further
support, at least to some degree, of Constable Blunden’s
version regarding the shooting
itself. Adding the trial court’s
respective credibility assessments of Constable Blunden and the
appellant, which have already
been evaluated as being appropriate,
the outcome is that there remains no basis to interfere with the
trial court’s factual
and credibility findings, or its
conclusion, when considering all the evidence.
The amended CPA and
the alternative defence
[32]
Mention has already been made of the trial
court’s reference to an outdated section of the CPA in its
evaluation of the matter.
Section 49(2) of the CPA provides as
follows:
‘
If
any arrestor attempts to arrest a suspect and the suspect resists the
attempt, or flees, or resists the attempt and flees, when
it is clear
that an attempt to arrest him or her is being made, and the suspect
cannot be arrested without the use of force, the
arrestor may, in
order to effect the arrest, use such force as may be reasonably
necessary and proportional in the circumstances
to overcome the
resistance or to prevent the suspect from fleeing, but, in addition
to the requirement that the force must be reasonably
necessary and
proportional in the circumstances, the arrestor may use deadly force
only if –
(a)
the suspect poses a threat of serious
violence to the arrestor or any other person; or
(b)
the suspect is suspected on reasonable
grounds of having committed a crime involving the infliction or
threatened infliction of
serious bodily harm and there are no other
reasonable means of effecting the arrest, whether at that time or
later.’
[33]
‘
Deadly
force’ is defined in s 49(1) of the CPA to mean ‘force
that is likely to cause serious bodily harm or death and
includes,
but is not limited to, shooting at a suspect with a firearm.’
[11]
[34]
While it is lamentable that the trial court
referred to a previous iteration of the section, and indeed to case
authority that considered
a differently worded section, it is readily
apparent that the outcome would have remained the same even if the
amended section
had been considered. Bearing in mind Ms
Du
Toit’s
concession on the point,
which was appropriately made, it is unnecessary to dwell on that
dimension any further. It is also unnecessary
to consider the merits
of the respondent’s alternative plea, which evokes s 49(2)
(b)
of the CPA.
Conclusion
[35]
Absent any material misdirection, the trial
court’s conclusions are presumed to be correct. The appellant
has failed to convince
me, on adequate grounds, that the trial court
erred in accepting the respondent’s version of events. The
record, read in
its entirety, does not support the arguments advanced
in respect of the alleged misdirections on the facts. While the trial
court
failed to make mention of certain dimensions of the evidence
led in its judgment, filling those gaps, and undertaking the
requisite
analysis in place of the trial court, has added little of
substance to the mix. It is so that the respondent was unable to
recover
the actual firearms in question, or produce scientific proof
confirming shots fired from the hijacked vehicle. While such evidence
would have put the matter beyond any doubt, the probabilities favour
the conclusion that the appellant’s injuries were caused
by
Constable Blunden and Constable Ntamo returning fire. That being the
case, there is no basis for holding that the trial court
came to the
wrong conclusion.
Order
[36]
The following order is issued:
1.
The appeal is dismissed with costs.
A GOVINDJEE
JUDGE OF THE HIGH
COURT
I agree.
G N Z MJALI
JUDGE OF THE HIGH
COURT
Heard:
27 October 2023
Delivered:
07 November 2023
Appearances:
For
the Applicant:
Adv
M Du Toit
Chambers,
Gqeberha
Instructed
by:
Peter
Mckenzie Attorneys
Appellant
attorneys
39
Beetlestone Road
Gelvandale
Gqeberha
Email:
peter@mckenzieinc.co.za
For
the Respondent:
Adv
A Rawjee
Club
Chambers, Gqeberha
Instructed
by:
Ms
L L Weinand
State
Attorney
Respondent
Attorneys
29
Western Road
Central
Gqeberha
Email:
LWeinand@justice.gov.za
[1]
Act
51 of 1977.
[2]
Stellenbosch
Farmers’ Winery Group Ltd and Another v Martell et cie and
Others
2003
(1) SA 11 (SCA).
[3]
R
v Dhlumayo and Another
1948
(2) SA 677
(A) (‘
Dhlumayo
’).
[4]
Powell
& Wife v Streatham Nursing Home
1935
AC 243
at 265 as quoted in
Makate
v Vodacom Ltd
2016 (4) SA 121
(CC);
2016 (6) BCLR 709
(CC);
[2016] ZACC 13
para
38.
[5]
Dhlumayo
above
n 3 at 705.
[6]
Dhlumayo
above
n 3.
[7]
S
v Francis
1991
(1) SACR 198
(A) at 198
j
— 199
a
.
For application of this authority in this Division in the context of
a claim for damages against the Minister of Police, see,
for
example,
Piperdi
v Minister of Police
2020 (1) SACR 572
(ECG) para 3;
Finnis
and Others v Minister of Police
(unreported, Case No: 87/2022, Eastern Cape Division, Makhanda) (15
September 2023).
[8]
Makate
v Vodacom Ltd
above n 4 para 40.
[9]
The
appellate court is then at large to disregard the trial court’s
findings on fact, even though based on credibility,
in whole or in
part according to the nature of the misdirection and the
circumstances of the particular case, and to come to
its own
conclusion on the matter:
Dhlumayo
above n 3.
[10]
Dhlumayo
above
n 3.
[11]
Section 49(1) of the CPA defines ‘
suspect’
to mean ‘any person in respect of whom an arrestor has a
reasonable suspicion that such person is committing
or has committed
an offence’. ‘Arrestor’ means any person
authorised under the CPA to arrest or to assist in
arresting a
suspect.