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[2023] ZAECELLC 16
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Ndiyalwa v Minister of Police (EL1605/21) [2023] ZAECELLC 16 (18 July 2023)
IN THE HIGH COURT OF
SOUTH AFRICA
(EAST LONDON CIRCUIT
DIVISION)
CASE NO: EL1605/21
In
the matter between:
THEMBELA
NDIYALWA
PLAINTIFF
and
MINISTER
OF POLICE
DEFENDANT
JUDGMENT
CENGANI -MBAKAZA AJ:
Introduction
[1]
On 05 December 2019, the Plaintiff was arrested and detained by the
police on allegations
of attempted murder. On 02 January 2020, he was
released on bail. Following the said events, he instituted action
against the Minister
of Police. He demands payment in an amount
totalling R1 300 000. 00 (One Million Three Hundred Thousand Rand
only) for damages
that he allegedly suffered as a result of his
arrest and his subsequent detention.
The pleadings
[2]
On 23 November 2021, the Plaintiff issued a combined summons in this
court, the particulars
of which are formulated as follows:
(a)
In relation to Claim A, Plaintiff avers
that he was unlawfully and wrongfully arrested without a warrant of
arrest in circumstances
where the police did not entertain any
reasonable suspicion that he had committed a Schedule 1 offence. As a
result, he suffered
damages in the sum of R800 000 00 (Eight Hundred
Thousand Rand only).
(b)
In respect of Claim B, Plaintiff alleges
that he was detained unlawfully and as a result thereof his freedom
of movement was violated.
He further contends that he was detained in
a cell where he was not allowed to move as he wanted; he was taken
away from his family;
he was detained in an environment which is not
suitable for him; the cells were dirty and full of lice; was forced
to share smelly
blankets with other inmates and was caused to sleep
on cold cement floor during cold winter nights. As a result, thereof,
he suffered
damages in the sum of R400 000, 00 (Four Hundred Thousand
Rand only)
(c)
In the specificity of Claim C, the
Plaintiff asserts that he was arrested in full view of the general
public and family members
who consequently held a belief of him being
a criminal of the highest degree, not deserving to be amongst the
members of the public
and be subject to legal proceedings. According
to the Plaintiff’s allegations, the conduct of the police
resulted in severe
impairment of his reputation and feelings of
grievance, embarrassment, and humiliation. Following the claims, the
Plaintiff seeks
an amount of R400 000 00 (Four Hundred Thousand Rand
only).
[3]
On 04 March 2022, the Defendant filed a notice of appearance to
defend and subsequently
filed his plea on 25 August 2022. In his
plea, Defendant admits that Plaintiff was arrested without a warrant.
However, his arrest
was justified in terms of Section 40(1) (b) of
the Criminal Procedure Act 51 of 1977 (“the CPA”).
[4]
The parties agreed to apply for separation of the merits and quantum
in a pre-trial
conference minute dated 25 August 2022. On the date of
the trial, the court, on application, made an order that the merits
be separated
from quantum in terms of Rule 33(4) of the Uniform Rules
of Court.
[5]
The trial proceeded on the basis that Defendant had a duty to begin
and bore the onus
to prove that arrest and subsequent detention were
justified.
The evidence
[6]
Constable Mandilakhe Makapela (the arresting officer) testified that
he received a
police docket containing a complaint of assault by the
complainant. He visited the complainant at the hospital and noticed
that
he was badly injured. Despite his injuries, he could
speak, so the arresting officer interviewed him. The complainant
informed
him that he was assaulted by two males, one of whom he
identified as Terra, Thembela
.
When questioned about the
identity of Terra, the complainant mentioned that his girlfriend knew
the suspect and where he could
be found. The arresting officer
recorded a statement, but the complainant could not endorse his
signature due to severe injuries
on his hands.
[7]
The arresting officer proceeded to the residence of the complainant’s
girlfriend,
who gave him directions to Terra’s location. When
he arrived at Amalinda, he apprehended the Plaintiff, whom the
complainant’s
girlfriend identified as Terra. The arresting
officer testified that he informed him of the allegations he was
facing. The Plaintiff
did not deny them. He further informed him of
his Constitutional rights and detained him at the Cambridge police
station. The arresting
officer further testified that he entertained
a suspicion which, according to him, was reasonable in that the
Plaintiff allegedly
committed an offence of attempted murder and was
identified by the complainant’s girlfriend after he had
consulted the complainant
at the hospital.
[8]
In cross-examination, the officer was asked about the sufficiency of
the information
which led to the arrest in so far as it related to
the identification of the perpetrator simply as ‘Terra’.
In
his response, he informed the court that Plaintiff was identified
by the complainant’s girlfriend and that people knew each
other
by nicknames in the residential area, according to his experience. It
was suggested to the arresting officer that he failed
to inform the
Plaintiff of the allegations he was facing. However, the
arresting officer maintained that he did advise the
Plaintiff of the
charges against him.
[9]
In their quest to discharge the onus of proof, the Defendants also
relied on the evidence
of Sergeant Nompendulo Qwede (the
investigating officer). She testified that upon the Plaintiff’s
arrest, she charged him
with attempted murder on 07 December 2019. In
a later instance, the case was subsequently withdrawn after the
Public Prosecutor
consulted with witnesses. When asked why the case
was withdrawn, the investigating officer testified that the
complainant had lost
interest in the matter. With this evidence, the
Defendant closed his case.
[10]
The Plaintiff gave testimony that on the day of his arrest, he was
busy with his braai at the
car wash, minding his own business. He
stated that he was chatting with a certain gentleman when another man
approached and asked
for the car keys to the vehicle he was driving.
Following this, he was suddenly handcuffed by another man when the
second man took
the car keys. They all drove off to Cambridge Police
Station.
[11]
Upon arrival, he was caused to stand outside of the car. The police
officers took his belongings
and put them on the trailer of his car.
One of the officers asked him to produce the firearm he had used to
shoot Bridge. He informed
them that he did not know who Bridge was,
to which the police asserted that Bridge was one of his friends.
Police asked if he knew
Lelethu, and he informed them that Lelethu
was his neighbour who worked at Boxer Supermarket. They all drove to
Boxer Supermarket.
Police entered the Supermarket leaving him in the
car, and he was later taken back to the police station. Plaintiff
testified that
police repeatedly questioned him about a firearm that
he claimed to be unaware of.
[12]
He was then detained and kept in police cells with two other young
men unknown to him. When questioned
whether he knew the other young
men, he answered in the negative. When police, considering their
knowledge, informed him that he
was working with the young men at a
taxi rank, he confirmed recognising them by sight. The other young
man, who was identified
as Lelethu, confirmed that he knew the
Plaintiff. They were then informed that they had attacked Bridge. He
did not respond to
the allegations. In his testimony, the Plaintiff
testified that, the following day, they were charged, fingerprints
were taken,
and they were given certain papers and advised that they
would appear in court at a later stage.
[13]
On the following Monday, 09 December 2019, they were offered soap to
bathe and some meals. A
police van came and took them to court. He
then spotted Bridge in the court cells. Bridge was singled out from
that group, and
he was advised that Bridge had caused his arrest. The
Plaintiff testified that he was advised to apply for bail. On 02
January
2020, they were granted bail of R1000 00 each (One Thousand
Rand only). On 20 March 2020, the case was withdrawn against him.
Asked
why the case was withdrawn, he testified that one Lelethu could
not be found.
[14]
Under cross-examination, Plaintiff testified that at the time of his
arrest, he became aware
of the accusations against him. Police
informed him that he was accused of shooting Bridge. When the
complainant’s statement
was made known to him during
cross-examination, it was highlighted that the complainant had named
Terra Thembela as his attacker.
Plaintiff said he could not
comment on that; however, at a later instance, he became aware that
he was implicated in the
crime in question. He admitted to knowing
the complainant’s girlfriend as Zintle and was advised not to
interfere with her
upon his release on bail. Furthermore, under
cross-examination, Plaintiff stated that he was a well-known DJ in
the area, he works
at the taxi rank and that the majority of people
are familiar with him. Given this, he elaborated, it would be highly
unlikely
for people to confuse his identity. With this
evidence, Plaintiff closed his case.
The Issues
[15]
The issue for determination is whether Plaintiff’s arrest and
his subsequent detention
were lawful. This will be analysed through
legal principles and in a discussion that will be presented below.
Applicable Law and
Evaluation
[16]
I proceed to deal with the lawfulness of the arrest.
[1]
In
Minister
of Law and Order and Others v Hurley and Another
[1]
,
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”
[17]
Section 40(1)
(b) of the
Criminal Procedure Act
[2]
provides that –
‘’
a
peace officer may without a warrant arrest any person whom he
reasonably suspects of having committed an offence referred to in
Schedule 1.’’
[18]
In
Duncan
v Minister of Law and Order
[3]
,
it was held there are so-called jurisdictional facts which must exist
before the power conferred by
section 40(1)
(b) of the
Criminal
Procedure Act, and
these are:
(a)
the arrestor must be a peace officer;
(b)
he must entertain a suspicion;
(c)
it must be a suspicion that the arrestee
committed an offence referred to in Schedule 1 to the
Criminal
Procedure Act
(other
than one particular offence); and
(d)
that suspicion must rest on reasonable
grounds.
[19]
The ruling in
Mabona
[4]
demonstrates how a reasonable suspicion is formed.
Jones
J explained what the concept of reasonable suspicion entailed. First,
he held, the test is an objective one involving an enquiry
into
whether a reasonable person in the arrestor’s position and
having the same information would have considered that there
were
‘good and sufficient grounds for suspecting that the arrestee
had committed a Schedule 1 offence. Secondly, the arrestor
is
required to analyse and assess the quality of the information
critically and not accept it without checking it where it can
be
checked. Thirdly, while the section requires ‘suspicion but not
certainty’, that suspicion must be based ‘upon
solid
grounds’ because if it is not, it is ‘flighty or
arbitrary, and not a reasonable suspicion’.
[20]
In
Biyela
v Minister of Police,
[5]
the court affirmed that the test of whether a suspicion is reasonable
is objectively justiciable. Musi AJA said,
“
[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
. ….. (Emphasis
added)”
Legal
submissions by the parties
[21]
In his heads of arguments, counsel for Defendant argues, briefly,
that the claim against Plaintiff
should be dismissed on the basis
that the police verified the information they had at their disposal.
He argues that the Plaintiff
was arrested after being identified as a
perpetrator of a Schedule 1 offence.
Counsel
for the Plaintiff argues that the wrong person was arrested.
Furthermore, the arrest was conducted unlawfully because the
arresting officer failed to comply with the required standing orders
in affecting the arrest, which further flows to the detention
of the
Plaintiff.
[6]
[22]
Gleaning from the evidence presented,
it
has been established that Constable Makapela was a peace officer.
Subsequent to his interview with the complainant, he entertained
a
suspicion that a Schedule 1 offence had been committed. The fact that
the offence falls under Schedule 1 was never placed in
dispute.
Was the wrong person
arrested?
[23]
On the issue of identity, both versions are mutually destructive. In
Stellenbosch
Famer’s Winery Group Ltd and Another v Martell et Cie and
Others
[7]
,
a case that I was referred to by counsel for the Plaintiff, the
following was said:
‘’
The
technique generally employed by courts in resolving factual disputes
where there are two irreconcilable versions before it may
be summarised as follows. To come to a conclusion on the
disputed issues the 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 of the veracity of
the witness. That in turn will depend on a variety
of
subsidiary factors such as (i) the witness' candour and demeanour in
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 extra curial statements or actions, (v) the probability
or improbability of particular aspects of his version,
and (vi) the
calibre and cogency of his performance compared to that of other
witnesses testifying about same incident or
events. As to (b), a
witness' reliability will depend, apart from the factors mentioned
under (a)(ii), (iv) and (v), on (i) the
opportunities he had to
experience and 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 more
convincing the former, the less convincing
will be the latter. But
when all factors are equipoised probabilities prevail’’.
[24]
Sergeants Makapela and Qwede corroborated each other, that the person
whom the complainant identified as
his attacker was the Plaintiff.
The statement that Sergeant Qwede had, which was enclosed in the
police docket mentioned the Plaintiff’s
name. Sergeant Qwede
informed the court that the complainant, his girlfriend and the
Plaintiff reside in the same area, and they
know each.
Cross-examination of the two witnesses bore no fruit because both
stuck to the versions of their stories.
[25]
The nickname Terra was never placed in dispute. Instead, Plaintiff
acknowledged that he is a well-known person
in the taxi industry as
well as a DJ of the area. Most importantly, he mentioned that there
would be no chances of mistaken identity.
In addition to the
information that the police had at their disposal, the fact that the
Plaintiff saw the complainant in the cells
and was advised that he
had caused his arrest might have strengthened the police’s
belief that the correct person was detained.
In the Plaintiff’s
version, police knew that he worked in the taxi industry. It is,
therefore, safe to conclude that police
verified the quality of
information they had, especially with regard to the identity of the
perpetrator of the alleged offence.
The evidence of the
Defendant, which is corroborated by Plaintiff on the issue of
identity, is credible and reliable. The
police had sufficient
justification for the arrest because they had reliable and
trustworthy information from the complainant himself.
It is common
cause that the arresting officer observed how badly injured the
complainant was. This then settles the factual disputes
between the
parties. I agree with the assertions made by the Defendant’s
counsel that under the circumstances, it was reasonable
for the
arresting officer to suspect that the Plaintiff had attempted to kill
the complainant. I am, therefore, satisfied that
all the
jurisdictional facts were established.
[26]
It is trite that once jurisdictional facts are established, the
question of discretion should be scrutinised.
In
Biyela
,
[8]
at para [36] per Musi AJA,
“
The
arresting officer is not obliged to arrest based on a reasonable
suspicion because he or she has discretion. The discretion
must be
exercised properly.”
[27]
The general requirement is that any discretion must be exercised in
good faith, rationally and not arbitrarily.
[9]
Once the jurisdictional facts have been established, it is for the
Plaintiff to prove that the discretion was exercised in an improper
manner.
[10]
Counsel
for the Plaintiff argues that the arresting officer failed to fulfil
the standing orders. With respect, counsel omits to
substantiate this
argument. I find this feature quite unsettling. In
Minister
of Safety and Security v Van Niekerk,
[11]
the Constitutional Court referred at [19], to the following
portions of the Police Standing orders (G) 341 issued under
Consolidated notice 15/99:
“
Background
The arrest constitutes
one of the most drastic infringements of the rights of an individual.
The rules that have been laid down
by the Constitution, 1996(Act 108
of 1996), the Criminal Procedure Act, 1977(Act 51 of 1977), the other
legislation and this order
concerning the circumstances when a person
may be arrested and how such person should be treated, must be
adhered to.”
[28]
The only fact that was challenged on the manner of arrest was that
the Plaintiff was never made aware of
the allegations against him. It
must be remembered that Plaintiff contradicted what was put to the
Defendant’s witnesses
on this aspect. Although it was claimed
during cross-examination that Plaintiff had never been aware of the
accusations against
him, this fact flew right in his face. In
contrast to the information provided to the arresting officer,
Plaintiff testified that
the police told him he had shot Bridge and
further questioned him concerning a firearm he had never used. Even
if reliance were
to be placed on the standing orders, as suggested by
counsel for the Plaintiff, there is nothing to suggest that the
arresting
officer exercised his discretion improperly. What appears
on the evidence tendered is that police followed the correct
procedures
[12]
when effecting
the arrest. There is no hint of proof that police actions were
motivated by
malafides
or by ulterior motives at the time the arrest was executed. I,
therefore, conclude that the Plaintiff’s arrest was lawful,
and
police exercised their discretion to arrest properly.
[29]
In the Plaintiff’s particulars of claim, the issue of detention
is pleaded separately from arrest.
In my view, it is imperative that
this issue be scrutinised and dealt with separately. What was said in
M
R v Minister of Safety and Security
[13]
finds relevance in this matter. The court held that arrest and
detention are separate legal processes, so much that while
the arrest
may be lawful, the detention may be unlawful; the fact that both
result in someone being deprived of her or his liberty
does not make
them one legal process.
[30]
It is trite that detention is, in and by itself,
prima
facie
unlawful. The onus rests on the detaining officer to justify the
detention. The constitutional right guaranteed in Section 12(1)
of
the Constitution to not be arbitrarily deprived of one’s
freedom and security of person shall serve as the lens through
which
liability for unlawful arrest and detention should be viewed. The
right not to be deprived of freedom arbitrarily or without
a just
cause applies to all persons in the Republic.
[14]
In
Minister
of Safety and Security v Magagula
,
[15]
the Supreme Court of Appeal emphasized the need to distinguish
between the period of arrest and an accused’s first appearance
in court, on the one hand, and the period between first appearance
and ultimate release, on the other. The case for unlawful detention
in respect of the first period, said Lamont AJA, is dependent upon
the failure of the authorities to establish that the arrest
was
lawful. In respect of the second period, however, the legality of
detention depends upon the court’s orders.
[31]
In the case under consideration, it is common cause that the
Plaintiff faced a Schedule 1 offence which is
regarded as a very
serious offence. In Banda
v
Minister of Police
[16]
at
para 61
per
Mbenenge JP
“
The
circumstances under which an arrested person may be released from
custody before their first court appearance are circumscribed.
Both
Sections 59(1) (a) and 59 A (1) of the CPA deal with the police bail
and prosecutor’s bail, respectively. These sections
fetter the
discretion of the police. They render it well neigh impossible for
police to grant bail in terms of section 59 of the
CPA, as attempted
murder is listed under Part 11 or Part 111 of Schedule 2 to the CPA.”
[32]
I am mindful that in
casu
no reference was made to Sections 59(1) (a)
[17]
and 59A (1)
[18]
of the CPA.
However, reference to the relevant sections will not change the
essential ingredients of this case. The arresting officer
testified
that upon his arrest, the Plaintiff was left in the hands of the
investigating officer to pursue further processes. Evidence
brought
by the investigating officer remains unchallenged, stating that due
to the Plaintiff being formally charged on 07 December
2019, a date
which fell on a Saturday, it was not feasible to bring him to court
for his first appearance. On Monday, 09
December 2019,
Plaintiff appeared for the first time in court. It was at this
moment that the investigating officer got her
first opportunity to
discuss the matter with the Public Prosecutor and deliberate a
strategy on how to deal with the matter going
forward. Although
bail was later granted, she never objected to the release of the
Plaintiff on bail; hence he was granted
bail in the amount of R1000.
00 (One Thousand Rand). Considering the above, I conclude that the
purpose of detention was to bring
the Plaintiff to justice. Following
the events as demonstrated above, I find that the detention of
Plaintiff was lawful. In the
result the claims brought against the
Defendant must fail.
Costs
[33]
The general rule is that costs follow the result. This is a case of a
delictual claim for damages arising
out of arrest and detention. I
see no reason why I should deviate from the general rule.
Order
[34]
The Plaintiff’s claims are dismissed with costs.
N
CENGANI-MBAKAZA
ACTING
JUDGE OF THE HIGH COURT
APPEARANCES:
Counsel
for the plaintiff:
Adv
L Magadlela
Instructed
by:
N.
Tyatyeka
Plaintiff’s
Attorneys
Short
Mill House
Victoria
Crescent
The
Quarry office Park
EAST
LONDON
Counsel
for the defendants:
Adv
M Rili
Instructed
by:
The
State Attorney
Defendants’
Attorney
Old
Spoornet Building
17
Fleet Street
EAST
LONDON
Date heard:
20 and 23
June 2023
DELIVERED
ON:
The judgment was handed down
electronically by circulation to the parties’ legal
representatives by email. The date and time
for hand-down is deemed
to be 18 July 2023 at 10:00.
[1]
1986(3)
SA 568(a) at 589 E-F
[2]
Act
51 of 1977, The Act
[3]
On
SAFLII(38/1985)[1986]ZASCA 24
[1986] ZASCA 24
; ;
[1986] 2 All SA 241
(A) (24MARCH 1986)
[4]
Mabona
& another v Minister of Law and Order & others
1988 (2) SA 654
(SE) at 658E-H
,
[5]
(1017/202)
[2022] ZASCA 36
(01 April 2022)
[6]
Plaintiff’s
heads of arguments para 7.2( filed on 23 June 2023)
[7]
2003
(1) SA 11 (SCA);2003 (1) SA p11
[8]
Foot
note 5 supra
[9]
Masethla v President of the RSA
[2007] ZACC 20
;
2008 (1) SA 566
(CC) At para 23; The
Minister of Safety
and
Security v Sekhoto 2011 (1) SACR 315 (SCA)
[10]
Minister
of Safety and Security v Sekhoto footnote 9 supra
[11]
2008(1)SACR
56 (CC)
[12]
.
Section 39 of the CPA (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.
[13]
2016
(2) SACR 540
(CC) at para 39
[14]
Mahlangu
and Another v Minister of Police 2021(2) SACR 595 (CC) at para 25
[15]
(991/2016)[2017]
ZASCA103(6 September 2017) at para 13
[16]
(CA
99/2020) [2021] ZA ECGHC 55(8 June 2022) at para 61
[17]
Section
59 of the CPA, (1)
(a)
An
accused who is in custody in respect of any offence, other than an
offence referred to in Part II or Part III of Schedule 2
may, before
his or her first appearance in a lower court, be released on bail in
respect of such offence by any police official
of or above the rank
of non-commissioned officer, in consultation with the police
official charged with the investigation, if
the accused deposits at
the police station the sum of money determined by such police
official.
[18]
An
Attorney-General, or a prosecutor authorised thereto in writing by
the Attorney-General concerned, may, in respect of the offences
referred to in Schedule 7 and in consultation with the police
official charged with the investigation, authorise the release
of an
accused on bail.