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[2022] ZAFSHC 131
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Ramabanta v Minister of Police and Another (2454/2020) [2022] ZAFSHC 131 (31 May 2022)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
NO
Of
Interest to other Judges: NO
Circulate
to Magistrates: NO
Case
number: 2454/2020
In
the matter between:
KHOTSO
JULIUS RAMABANTA Plaintiff
and
THE
MINISTER OF POLICE 1
st
Defendant
NATIONAL
DIRECTOR OF PUBLIC
PROSECUTIONS 2
nd
Defendant
CORAM:
AFRICA, AJ
HEARD
ON: 20 APRIL 2022
DELIVERED
ON: This 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 have been at 14h00 on 31 May 2022.
JUDGMENT
INTRODUCTION
[1]
This is delictual claim for damages arising from the alleged unlawful
arrest and detention on the 27th of
February 2019 against the
Minister of Police ("first defendant") and the alleged
malicious prosecution by the National
Director of Public Prosecutions
("second defendant").
[2]
At the onset of this trial, the defendants placed on record that the
Special Plea of non-compliance with the
provisions of
Section 3(2)
of
the
Institution of Legal Proceedings Against Certain Organs of State
Act 40 of 2002
, has since been abandoned at Pre-Trial.
[3]
This matter was adjudicated in respect of both merits and quantum.
[4]
EVIDENTIAL MATERIAL
Exhibit Bundle A: Real
evidence "1":
Index: Consolidated
Discovery Bundle Toy fire-arm booked into SAP13140/2019
[5]
Issues which are common cause
[5.1] That the plaintiff
was arrested, by the police, at his home on the 27th of February
2019, without a warrant of arrest under
CAS No: 297/02/2019, on a
charge of attempted murder and detained at the Mangaung Police
Station.
[5.2] The plaintiff made
his first appearance at the Bloemfontein Magistrate's court on 1
March 2019. At that stage the plaintiff
elected to be represented by
Legal Aid and the matter was postponed, until 8 March 2019, in terms
of
section 50(6)
[1]
to obtain
bail information to be verified in order for the state to determine
whether bail will be opposed.
[5.3] On 8 March 2019, Mr
Mazibuko, a private attorney came on record and matter was postponed
for formal bail application. The
state indicated that "one of
the reasons" for the opposition to bail was the legality of the
accused.
[5.4] On the 20th of
March 2019, after the affidavit in support of the plaintiff's
Schedule 5 bail application was read into the
record and a copy of
plaintiff's passport presented to the prosecutor, the matter was
withdrawn.
[6]
Issues in dispute:
[6.1] Whether plaintiff
was arrested unlawfully and without reasonable suspicion;
[6.2] Whether plaintiff
was maliciously prosecuted;
EVIDENCE
FOR THE PLAINTIFF
[7]
Khotso Julius Ramabanta ("Plaintiff'') testified that he is a
Lesotho National, who is legally in South
Africa. He is aged 37 with
his highest level of education being standard 5 (five). On the 27th
of February 2019, he was arrested
by the police, upon entering his
residence, being from work. Upon enquiring about the reason for his
arrest, the police informed
him, that he, Rorisang and Thabiso, shot
the complainant at Mochabela, which allegation the plaintiff refuted.
[8]
Plaintiff stated that he knew the complainant as Putsweng, but that
he was not the person who shot the complainant
but rather, Rorisang,
his younger brother. This he knew because he was present when the
complainant was shot. Plaintiff stated
that on the day in question,
whilst walking with Rorisang and Thabiso, they met up with the
complainant, approaching from the opposite
direction. The plaintiff
did not see from where Rorisang took the firearm, as he (Rorisang)
and Thabiso were walking on plaintiff's
left-hand side. Plaintiff
then saw complainant running away and Rorisang firing a shot. At that
stage he (plaintiff) and Thabiso
kept on walking.
[9]
After plaintiff's arrest, he appeared in court on 01 March 2019,
where after the matter was postponed for
7 (seven) days. Ultimately
the matter was withdrawn. The plaintiff intimated that he remained in
custody at all times, whilst the
state did not have any evidence
against him. He was initially detained at the Mangaung Police station
and thereafter, Grootvlei
Prison. The conditions of his detention
were terrible, unlike at his home. As a non-smoker, was he detained
with smokers; the blankets
smelt of feet and he was detained in a
crowded cell, with ± 30 (thirty) other detainees. He was given
little breakfast and
lunch was served around 14h00, in the afternoon.
His next meal will be the following day, whereas, at home he enjoyed
3(three)
meals per day. At Grootvlei prison, inmates will fight over
the food, brought from outside. He was detained with ±50
(fifty)
inmates and his sleeping arrangements were uncomfortable as
the space was overcrowded and cramped. The plaintiff intimated that
the arrest even impacted where he resided, as his landlord said that
she does not want him on the premises anymore.
[10]
During cross-examination, the plaintiff confirmed that he was also
known by the name of Mahashe and was residing with
his 2 (two)
siblings, Mathatsi and Rorisang, at the time of his arrest. He
conceded that the arresting officer, dressed in full
uniform,
informed him that he was arrested on a charge of attempted murder.
[11]
Plaintiff further conceded that upon searching his dwelling, with
permission, the arresting officer found a toy-firearm
[2]
hidden inside the couch. However, subsequently, plaintiff said that
the firearm was found in Rorisang's shack. After it was put
to the
plaintiff that the firearm was indeed found in his shack, he reverted
back to his earlier version, and confirmed that the
toy-firearm was
indeed found in his shack. When confronted with the fact that he
never testified in chief that a toy-firearm was
found in his shack,
plaintiff responded that he failed to mention it because he was not
asked about it.
[12]
Plaintiff further stated that the shooting incident unfolded after
19h00 in the evening, but he was able to see that
complainant took
out something resembling a firearm. This he observed at a distance of
10 - 12 meters. He however did not manage
to see from where Rorisang
took the firearm, as he was facing in the same direction as Rorisang.
[13]
Plaintiff's interview statement
[3]
was put to him in that he told the investigation officer that he knew
nothing about the incident. Plaintiff denied this saying
that he
informed the investigating officer that Rorisang committed the
offence.
[14]
The plaintiff confirmed that at the time of his arrest, he was
employed at the University as a plasterer, which job he
lost as a
result of the arrest. He stated that he was working under the
contractor as a sub-contractor, then changed his version
stating that
he worked for Ramabanta, who had a sub-contract. The plaintiff was
asked which version between that given in respect
of his income,
should this court believe, the one given at his bail application or
his oral evidence in court. The plaintiff conceded
that the versions
differ but stated that his viva voce evidence should be accepted.
EVIDENCE
FOR THE DEFENDANTS
[15]
Hendrick Squire ("Constable Squire") testified that he
holds the rank of constable, within the South African
Police Service,
for the past 11 years. He is stationed at Mangaung Police station,
doing crime prevention and visible policing
for the past 3 years. His
duties include tactical training in crime prevention.
[16]
In explaining the events leading up to the arrest of plaintiff,
Constable Squire testified that he and his colleague
were patrolling
in Town, around the 25th or 26th of February 2019, in a marked police
vehicle, when they were flagged down by the
complainant, in St.
Andrews Street. The complainant was a certain Mr Nthako, who showed
them a piece of paper, with a case number
and police stamp on it. The
complainant also showed Constable Squire, that he was shot on both
legs, by pulling up his trouser.
He (complainant) said that he knew
the people that shot him and that they are from the Lesotho. He then
asked for Constable Squire's
number, in order for an arrest to be
affected, should he see the suspects again.
[17]
On the 27th of February 2019, around 18h10, Constable Squire received
a call from the complainant, stating that he knew
the whereabouts of
the suspects. Constable Squire mobilized back-up as he knew a firearm
was involved. The complainant directed
them to a house in Segope
Street, which had a shack at the back of the residence. They knocked
at the door of the shack and the
suspect Ramabanta ("plaintiff'')
opened the door. Constable Squire asked plaintiff if he knew the
complainant, to which he
said yes, but that he was not the one who
did the shooting. When the plaintiff uttered these words, constable
Squire told himself
that he was at the right place.
[18]
Constable Squire proceeded to search the shack with permission, and
found a fire-arm inserted into a cut,
made in the sofa. The firearm,
which was made of iron and black in colour, looked like a real
firearm, but on closer inspection,
constable Squire noticed that it
was a toy-firearm. When he enquired from plaintiff what he was doing
with it, plaintiff did not
answer.
[19]
Constable Squire then arrested plaintiff on suspicion of attempted
murder as he was pointed out by the complainant and
the fact that
plaintiff placed himself on the scene. The toy-firearm was booked
into the SAP13.
[20]
During cross examination constable Squire confirmed that at no stage
before effecting the arrest, did he have insight
to the docket. He
confirmed that complainant's statement refers to Rorisang as the
person that shot and not plaintiff. Further,
that the complainant
referred to one firearm and that the 3(three) males was known to him
from Lesotho. Constable Squire agreed
that he did not make further
enquiries about how the shooting happen. When asked why not,
constable Squire said that it was clear
that the men were acting in
common purpose and that they might have arranged or planned the whole
shooting. When asked why he arrested
the plaintiff for attempted
murder as opposed to assault with the intent to do grievous bodily
harm, constable Squire said that
he effected the arrest for attempted
murder because a firearm was involved.
[21]
It was put to constable Squire that he had no reasonable suspicion
that plaintiff committed attempted murder. Constable
Squire said that
he believed the complainant because he pointed out the plaintiff and
a case docket by then was opened, causing
him to act in making an
arrest.
[22]
Mutla Sylvester Chaacha ("Detective Chaacha") testified
that he has been in the employment of the South African
police
services for the past 23 years, 16 years of which as a detective. His
duties entail gathering of evidence and investigating
cases. He is
stationed at the Mangaung police station and confirms that the is the
investigating officer in the present matter,
with cas number
297/2/2019. His involvement in this matter started after the 23rd of
February 2019, when he received the docket.
[23]
He first went to the complainant in order to get a lead or further
information on who the suspects are. The complainant
revealed to him
that he was shot at by 3(three) people and one is named Rorisang.
Constable Chaacha confirmed that he conducted
an interview with
plaintiff, on the 28th of February 2019, and he explained plaintiff's
rights at which point plaintiff said that
he does not wish to make a
statement until he is legally represented. Plaintiff further told him
that he has no knowledge of the
shooting, neither does he know the
complainant or the name Mahaashe.
[24]
The J88 was obtained confirming the injuries sustained by
complainant, and he visited the address of the outstanding
suspects
on a few occasions, but found no-one except the who indicated that he
last saw the suspects on the 27th of February 2019.
Detective Chaacha
said that on the 28th of February 2019, plaintiff informed him that
he did not have a passport and he requested
Home Affairs to
confirm whether the plaintiff was legally in the country. Detective
Chaacha was provided an affidavit
[4]
stating that the name Kgotso Ramabanta ("plaintiff''), did not
appear on their records.
[25]
Detective Chaacha confirmed that he was not present at the hearing of
the formal bail application, but confirms that
the case was withdraw
at that stage due to insufficient evidence to show that plaintiff
acted in common purpose, in attacking the
complainant.
[26]
During cross examination, detective Chaacha confirmed that the
complainant did not specify that he was shot at by the
plaintiff.
When asked whether, based on the information in docket, he would have
effected the arrest, detective Chaacha intimated
that he would, even
though plaintiff did not fire the shot, but he was in the company of
the person who did. Detective Chaacha
said that the complainant
informed him that plaintiff was the one who instructed Rorisang to
shoot him. When he (detective Chaacha)
was asked where in the docket
this information was contained, he said that it does not reflect in
docket because it had slipped
his mind. He further confirmed that he
did not take a further statement in this regard from the complainant,
as complainant had
moved from his address by the time the matter was
withdrawn.
[27]
When detective Chaacha was asked whether the plaintiff should have
been granted bail on the 1st of March 2019, he said
that plaintiff
was not in a position to get bail as they did not have enough bail
information at that stage and the information
from Home Affairs was
still outstanding. Detective Chaacha said that he was present at
court on the 20th of March 2019, to oppose
bail for the plaintiff,
but the case was withdrawn, and he was unaware of that.
[28]
On the courts question detective Chaacha said that he never had
insight to the passport of the plaintiff, which was presented
at
plaintiff's bail application, as plaintiff told him that he did not
have one.
[29]
Jakobus Johannes De Vries ("Mr De Vries") testified that he
was appointed as prosecutor by the National Prosecuting
authority in
2000. He confirms that he was the prosecutor on duty at the
plaintiff's first appearance on the 1st of March 2019.
He said that
the plaintiff on that day applied for legal aid assistance and the
matter was postponed in terms of section 50(6)
[5]
to obtain bail information and verify plaintiff's legality, as he is
a foreign national. On the 8th of March 2019, the plaintiff
was
represented by Ms Mosiane from Legal Aid, who informed the court that
she wishes to withdraw, as plaintiff appointed a private
attorney. Mr
Mazibuko came on record and the matter was accordingly postponed for
a Schedule 5 formal bail application to the 20th
of March 2019. On
the said date, Mr Mazibuko read into record the affidavit in support
of the plaintiff's bail application as well
as handing up a copy of
the plaintiff's passport and work permit, which purportedly expired
on the 31st of December 2019. The state
requested the matter to stand
down for discussion with the senior prosecutor. On resumption, Mr De
Vries withdrew the case because
the plaintiff presented a copy of his
passport and because the outstanding suspects by then have not been
arrested.
[30]
Mr De Vries explained that the matter was initially placed on the
roll because the complainant pointed the plaintiff
as one of the
people who was present, when he was shot and the perpetrators were
known to the complainant. He said that the outstanding
suspects had
to be traced as they acted in common purpose. Mr De Vries stated that
the suspects approached and fled the scene together
and the plaintiff
never denied his involvement. He further stated that because this was
a schedule 5 bail application, the onus
was on the plaintiff to
adduce evidence to show that it will be in the interest of justice
for him to be released on bail, having
regard to
sections 60(4)(a)
to
(e) of Act 51 of 1977.
[31]
During cross examination, Mr De Vries confirmed that at the time of
arrest and on the day of the bail application a charge
of
contravention of section 49
[6]
was not added. When asked why he (Mr. De Vries) stood the matter down
for discussions, Mr. De Vries responded that they did not
know of the
passport, till that day, which stated that the plaintiff was legally
in the country. As this information was contrary
to the section 212
statement contained in the docket, he had to approach the senior
prosecutor. Mr. De Vries said charging the
plaintiff at that stage
with contravention of section 49 would not have had a bearing on the
fact that it was still a schedule
5 bail application. When asked why
he had to discuss the matter with the senior prosecutor, Mr. De Vries
said that as it appeared
from the passport that the plaintiff was
legally in the country (thus not a flight risk), it would be better
at that stage, to
first have the outstanding suspects arrested, to
prove common purpose. Mr. De Vries confirmed that the postea entry
[7]
was made by him and it was his view at that stage that there are
insufficient evidence to argue common purpose. Mr. De Vries further
explained that at the stage of the withdrawal, there was still common
purpose, but he felt it would be better if all the suspects
are first
arrested.
[32]
Mr. De Vries conceded that neither the complainant nor the arresting
statement states that the suspects "approached
and fled the
scene together". When asked why, if the information in the
docket on 1 March 209 was the same at it was on the
20th of March
2019, was bail not granted to the plaintiff and the matter taken to
trial. Mr. De Vries said that he maintains that
there was common
purpose however it would be better if all the suspects were charged
together, hence his entry in the investigation
diary
[8]
that there was "insufficient evidence to proceed at that stage"
and not that there is no evidence.
EVALUATION
OF THE EVIDENCE
[33]
In the case of Zealand v Minister of Justice and Constitutional
Development
[9]
Langa
CJ held:
"The constitution
enshrines the right to freedom and security of the person, including
the right not to be deprived of freedom
arbitrarily or without just
cause, as well as the founding value of freedom... The respondents
then bore the burden to justify
the deprivation of liberty, whatever
form it may have taken." As stated by O'Reagan Jin S v Coetzee
and Others
[10]
"[There are] two
different aspects of freedom: the first is concerned particularly
with the reasons for which the state may
deprive someone of freedom
[the substantive component]; and the second is concerned with the
manner whereby a person is deprived
of freedom [the procedural
component]... Our constitution recognizes that both aspects are
important in a democracy; the state
may not deprive its citizens of
liberty for reasons that are not acceptable, nor, when it deprive
citizens of freedom for acceptable
reasons, may it do so in a manner
which is procedurally unfair."
[11]
[34]
In Minister of Law and Order and Others v Hurley and Another
[12]
the following is stated:
"An arrest
constitutes an interference with the liberty of the individual
concerned, and it therefore seems to be 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."
[35]
The basic rule in civil proceedings is that he who asserts must
prove
[13]
and the standard of
proof in a civil case is the well-known balance of probabilities
which has been described as follows:
"That degree is well
settled. It must carry a reasonable degree of probability, but not so
high as is required in a criminal
case. If the evidence is such that
the tribunal can say: 'We think it more probable than not, the burden
is discharged, but if
the probabilities are equal, it is not'... This
means that if there is more than one possible interpretation of the
facts relating
to any particular issue in dispute, the interpretation
least favourable to the party bearing the onus of proof must be
applied"
[14]
[36]
In Casu, the defendant admitted to the arrest and subsequent
detention of the plaintiff, but pleaded that it was justified
because
constable Squire had a reasonable suspicion that plaintiff made
himself guilty of an offence or offences as referred to
in Schedule 1
of Act51 of 1977, namely attempted murder and/or contravention of
section 9(1) or 9(2) of the Prevention of organised
Crime Act of
1998. Further to this it was pleaded that the arresting officer
exercised his discretion to arrest the plaintiff in
a bona fide,
rational and non-arbitrary manner.
[37]
Section 40(1) (b) of Act 51 of 77 reads as follows:
(1) A peace officer may
without warrant arrest any person-
(b) whom he
reasonably suspects of having committed an offence referred to in
Schedule 1, other than the offence of escaping
from lawful custody;
[38]
JA Van Heerden in Duncan v Minister of Law and Order
[15]
,
it was held that "the jurisdictional facts which must exist
before the power conferred by section 40(1) (b) of the present
Act
may be invoked, are as follows:
1. The
arrestor must be a peace officer.
2. He must
entertain a suspicion.
3. It must be
a suspicion that the arrestee committed an offence referred to in
Schedule 1 to the Act.
4. That
suspicion must rest on reasonable grounds.
[39]
The Duncan case further referred to
[16]
"
Ingram v Minister van Justisie
[17]
which correctly stated the test to be applied as:
The words "reasonable
suspicion" may tend to indicate some subjective test to be
applied; however, that is not so; the
test as to whether "reasonable
suspicion" could have existed and did exist, is to be determined
by an objection standard,
namely that of the reasonable man with the
knowledge and experience of a peace officer based on the facts and
circumstances then
known to the arresting officer."
[40]
This court was referred to the case of Mabona v Minister of Law and
Order and Others
[18]
where it
was stated that:
"Would a reasonable
man in the second defendant's position and possessed with the same
information have considered that there
were good and sufficient
grounds for suspecting that the plaintiffs were guilty of conspiracy
to commit robbery or possession of
stolen property knowing it to be
stolen? The reasonable man will therefore analyse and assess the
information at his disposal critically,
and he will not accept it
lightly or without checking it where it can be checked. It is only
after an examination of this kind
that he will allow himself to
entertain a suspicion which will justify an arrest. This is not to
say the information at his disposal
must be of sufficiently high
quality and cogency to engender in him conviction that the suspect is
in fact guilty. The section
requires suspicion and not certainty.
However, the suspicion must be based on solid grounds"
[41]
It is argued on behalf of the plaintiff that constable Squire's
conduct falls short of what is expected of a reasonable
arresting
officer as expressed in Mabona (supra). Further that constable Squire
failed to analyse and assess the quality of the
information at his
disposal critically and merely accepted it lightly without checking
it where it can be checked. This is so,
as it is argument goes
because constable Squire failed to acquaint himself with the content
of the relevant police docket. Had
constable Squire acquainted
himself with the content of the docket before the arrest, he would
have realised that complainant's
statement expressly indicates that
he was shot by Rorisang. Thus, the arrest of the plaintiff was
founded on the say-so of the
complainant, namely that he was shot by
3 (three) people.
[42]
On behalf of the defendants this court was referred to the case of
Shabaan Hussein and Others v Chong Fook Kam
[19]
where it was stated:
"Suspicion in its
ordinary meaning is a state of conjecture or surmise where proof is
lacking. I suspect but cannot prove.
Suspicion arises at or near the
starting point of an investigation of which the obtaining of prima
facie proof is the end ... Prima
facie proof consists of admissible
evidence; suspicion can take into account matters that could not be
put in evidence at all...
Suspicion can take into account also
matters which although admissible could not form part of a prima
facie case."
[43]
Thus the question for consideration is whether a reasonable man in
constable Squire position and possessed with the same
information
have considered that there were good and sufficient grounds in
formulating a reasonable suspicion that the plaintiff
committed the
offence of attempted murder.
[44]
The objective facts at constable Squire's disposal was that the
complainant approached him, showed him a piece of paper
containing a
case number and police stamp. The complainant relayed to him that he
was shot on both legs and that the perpetrators
are known to him,
from Lesotho. The complainant showed him the wounds.
[45]
It is correctly argued on behalf of plaintiff that the complainant
never said that he was shot by all 3 (three) suspects;
the
complainant only mentioned "a firearm" and that prior to
effecting the arrest, constable Squire did not further probe
the
complainant's account of how the shooting happened, more so because
the plaintiff indicated to him that he did not shoot the
complainant.
[46]
This court is also mindful that apart from knowing the perpetrators,
the complainant showed constable Squire where they
resided and he
pointed plaintiff in the presence of constable Squire. On plaintiff's
own version, when constable Squire asked whether
he knew the
complainant he said yes, and stated complainant's name as Putsweng.
According to constable Squire, the plaintiff freely,
before being
asked any questions, told him that he ("the plaintiff'') did not
shoot the complainant. This utterance, convinced
constable Squire,
that indeed he must be at the right place, because plaintiff
confirmed the complainant's version that he was
shot at by known
perpetrators, despite the fact that plaintiff absolved himself from
any wrongdoing.
[47]
This court was also referred to the case of Mofokeng v Minister of
Police and Another
[20]
where
the following was stated.
"In order to
exercise this discretion, the arresting officer must have sufficient
knowledge of the evidence against the accused.
In casu Motlogi
confirmed during cross-examination that he had no knowledge of the
contents of the docket and could not form an
independent opinion to
arrest or not"
[48]
Premise hereupon, it is argued that had constable Squire's acquainted
himself with the contents of the docket before
the arrest, he would
have realised that the statement of the complainant filed in the
docket, expressly indicates that he was shot
by Rorisang and thus the
decision to arrest the plaintiff was unreasonable.
[49]
The difficulty with this line of reasoning is that it does not
account for the fact that to the mind of constable Squire,
the
complainant was shot in common purpose and further that plaintiff
could have part of this plan to shoot the complainant, bearing
in
mind that plaintiff was walking alongside the outstanding suspects
and was present when the complainant was shot. The reasoning
employed
in the Mofokeng case, that because the arresting officer had no
knowledge of the content of the docket, he could not form
an
independent opinion to arrest, can't find application in casu. The
doctrine of common purpose establishes that where two or
more people
agree to a commit a crime, each will be responsible for the acts of
the others that fall within their common purpose
or design. In the
present matter, the plaintiff was present at the scene; the plaintiff
observed the attack on the complainant,
at the hands of his younger
brother. From that point of view, constable Squire's suspicion can't
be deemed unreasonable, simply
because the plaintiff did not play an
active role in the shooting.
[50]
It is further argued on behalf of the plaintiff that the case of
Gellman
[21]
is authoritative
on the fact that the mere say-so of a complainant is not, without
more, sufficient to arouse a reasonable suspicion
that an offence has
been committed. That is more so when the complainant's version is
unsatisfactory... The inspector made no attempt
to supplement the
unsatisfactory witness statement by seeking out independent
corroborative evidence... " (my emphasis)
[51]
This court fails to understand how constable Squire's failure to
acquaint himself with the content of docket in the circumstances
of
this case, led to an unreasonable suspicion to arrest, as is argued.
Even if this court accepts momentarily that if constable
Squire had
prior insight to the docket, he would have seen that the complainant
identified Rorisang as the shooter. How would knowing
the identity of
the shooter have impacted constable Squire not to arrest the
plaintiff, when the essence of the doctrine of common
purpose is,
that if two or more people, having a common purpose to commit a
crime, act together in order to achieve that purpose,
the conduct of
each of them in the execution of that purpose is imputed to the
others.
[52]
Further, it can hardly be argued that on the face of it, the
complainant's version appeared to any reasonable person
to be
improbable, contradictory and unsatisfactory, as alluded to in the
Gellman case (supra). This is so because complainant's
version is
materially corroborated by the plaintiff himself, save for the fact
that he ("plaintiff'') was not the shooter.
Constable Squire was
shown the wounds inflicted as a result of the shooting, giving
credence to the version of the complainant
that indeed he was shot
with a firearm.
[53]
It is the view of this court that a reasonable person in the position
of constable Squire, possessing the same information,
after having
objectively analysed and assessing the quality of the said
information at his disposal, could formulate a suspicion
based on
reasonable grounds. The court finds that the defendants had
established the listed jurisdictional facts for a defence
based on s
40(1)(b).
[54]
Police officers are never obliged to affect an arrest, when all the
jurisdictional factors are present. It must be borne
in mind that the
object of an arrest is to ensure that the accused person appears
before court in answer to a charge, and not to
punish him for an
offence of which he has not been convicted. An officer, it should be
emphasized, is not obliged to effect an
arrest. The exercise of such
discretion will be clearly unlawful if the arrestor knowingly invokes
the power to arrest for a purpose
not contemplated by the
legislature. The decision to arrest must be based on the intention to
bring the arrested person to justice.
"Therefor if the
object of the arrest though professedly to bring the arrested person
before court, is really not such, but
is to frighten or harass him
and induce him to act in a way desired by the arrestor, ... the
arrest is no doubt unlawful"
[22]
Such an arrest is not bona fide because the arrestor has used a power
for an ulterior motive.
[55]
Further, where there is no urgency and the person to be charged has a
fixed and known address, it is generally desirable
that a less
intrusive method of summons be adopted.
[23]
However, an arrest or subsequent detention does not become unlawful
merely because a summons, or notice to appear in court, would
have
been equally effective in ensuring his or her presence at court.
[56]
"This would mean that peace officers are entitled to exercise
their discretion as they see fit, provided that they
stay within the
bounds of rationality. The standard is not breached because an
officer exercised the discretion in a manner other
than that deemed
optimal by the court. A number of choices may be open to him, all of
which may fall within the range of rationality.
The standard is not
perfection, or even the optimum judged from the vantage of hindsight,
as long as the discretion is exercised
within the range, the standard
is not breached."
[24]
[57]
The court is mindful of the fact that arrest, being the most drastic
method to secure a person's attendance at his trial,
ought to be
confined to serious cases. There is however no evidence to suggest
that Constable Squire, under the present circumstances,
did not
exercise his discretion rationally, in arresting plaintiff. This
court, finds that the necessary jurisdictional facts were
proved for
a lawful arrest and that constable Squire's discretion was not
improperly exercised.
[58]
Once an arrest has been lawfully executed without a warrant the
question arises as to an arrestee's rights thereafter.
Generally,
this is governed by Section 50 of Act 51 of 1977, but must be read
with Section 59 and 59A thereof.
[59]
It is argued on behalf of plaintiff that at the time of plaintiff's
arrest, constable Squire foresaw that plaintiff might
be detained
post his first appearance in court, thus the first defendant should
be held liable for plaintiff's detention after
his first appearance.
This court was referred to the case of De Klerk v Minister of
Police
[25]
in arguing this
point.
[60]
In the De Klerk case Cameron J stated:
"What is more, the
evidence established that, when Constable Ndala arrested the
applicant, she knew that at the Randburg Magistrates'
Court he would
have his first appearance and that is normally postponed. This
conforms her other evidence about what she knew of
how that Court
operated. The arresting officer thus knew that, without her
intervention, in the particular court to which he would
be taken, the
case would be postponed for at least seven days, and that he would be
imprisoned during the postponement."
[61]
The facts in the De Klerk case
[26]
reads succinctly as follows:
"After an
altercation that descended into violence, a charge was laid against
Mr de Klerk ("the applicant") at the
Sandton Police
Station. Eight days later, Constable Ndala contacted the applicant,
who agreed to present himself at the station.
This he did, on 21
December 2012. There he was unexpectedly arrested and detained. His
arrest was woefully unlawful. Less than
45 minutes after this woeful
act, a colleague of Constable Ndala took the applicant, still under
arrest, to the Randburg Magistrates'
Court. There his case docket was
handed to the prosecutor. Inside the docket was recorded a
recommendation that he be granted bail
of R1 000. In other words, she
knew that at the first appearance the remand would be a routine or
mechanical act rather than a
considered judicial decision." (my
emphasis)
[62]
This court indeed embraces the reasoning as was employed in the De
Klerk case, but respectfully disagree with plaintiff,
that in casu,
the actions of constable Squire was woefully unlawful, warranting the
inference that first defendant must be liable
for plaintiff's entire
period of detention. On the objective facts of this case can it not
be said that constable Squire knowingly
invoked the power to arrest
for a purpose not contemplated by the legislature.
[63]
In respect of the claim of malicious prosecution, plaintiff argues
that the issue for determination is whether or not
the second
defendant's employee, in prosecuting the plaintiff, acted without
reasonable and probable cause and animo iniuriandi.
[64]
In order to succeed (on the merits) with a claim for malicious
prosecution, a claimant must allege and prove –
(a) that the
defendants set the law in motion (instigated or instituted the
proceedings);
(b) that the
defendants acted without reasonable and probable cause;
(c) that the
defendants acted with 'malice' (or animo injuriand,);
[27]
and
(d) that the
prosecution has failed.
[28]
[65]
Absence of reasonable and probable cause can only be proved with
reference to subjective and objective elements. "Not
only must
the defendant have subjectively had an honest belief in the guilt of
the plaintiff, but his or her belief and conduct
must have been
objectively reasonable, as it would have been exercised by a person
using ordinary care and prudence"
[29]
.
The plaintiff must prove that the proceedings were instituted without
reasonable and probable cause. The test is objective in
that when it
is alleged that a defendant had no reasonable cause for prosecution
it means that he or she did not have such information
as would lead a
reasonable person to conclude that the plaintiff had probably
committed the offence charged with.
[66]
Plaintiff was charged with attempted murder, where reliance on the
principle of common purpose was placed, as testified
by constable
Squire. This statement is supported by the first entry in the
investigation diary
[30]
where
it reads: Modus Operandi: Suspects came to kill complainant as they
started shooting at him on the street more than eight
(8) times...
Suspects: Rorisang, Mahashe and other unknown African male all from
Lesotho"
[67]
It can hardly be said that the police at the institution of
proceedings, did anything more than one would expect from
a police
officer in those circumstances, namely to give a fair and honest
statement of the relevant facts to the prosecutor, leaving
it to the
latter to decide whether to prosecute or not.
[68]
It is trite, for the purpose of bail, that the offence of attempted
murder with a firearm, resorts under Schedule 5 and
therefore at
first appearance the state requested a remand in terms of section
50(6) for bail information to be verified. In this
regard that
information will include establishing the legality of plaintiff. At
this stage, the docket already contained information
that the
plaintiff was a Lesotho National, and the investigation was geared at
tracing the outstanding suspects.
[31]
[69]
On the 8th of March 2019, the mandate of the legal aid attorney was
terminated and Mr Mazibuko, a private attorney, came
on record and
confirm the date of 20th of March 2019, as suitable for the purpose
of a formal bail application, in terms of Schedule
5. Noteworthy, on
the 8th of March 2019, Mr Mazibuko is aware that the legality of the
plaintiff is one of the reasons bail would
be opposed. This court
finds it peculiar why the plaintiff did not at the time of his arrest
or at his interview with investigating
officer or at his court
appearances leading up to the withdrawal of the case, present his
passport to the state for verification.
Only a copy of the passport
is presented to the state, on the day the matter is withdrawn.
[70]
Mr De Vries testified that the reasons for the withdrawal of the
matter on the 20th of March 2019, was firstly because
plaintiff
presented the prosecution with a copy of what purported to be valid
passport and because no other suspects, have been
arrested by then.
Mr De Vries, who took the ultimate decision to prosecute plaintiff,
testified that at the time he took this decision,
he had access to
the docket, indicating that the plaintiff and other suspects, was
part of a group of known men, who shot the complainant
and the
plaintiff who was pointed by the complainant, was present at the
scene. He therefore concluded that there was a common
purpose, but by
the time the matter was placed on the court roll, the other suspects
were outstanding.
[71]
Mr De Vries, on this information before him at the relevant time, was
clearly convinced that there was enough reasonable
and probable cause
to believe that the plaintiff acted in common purpose with the
suspects at large. It is a fact that the Rorisang(shooter)
is
plaintiff's younger brother and the 3rd suspect was and acquaintance
of Rorisang.
[72]
It is trite that the plaintiff in a Schedule 5 bail application, bore
the onus and it is common cause that plaintiff
is a Lesotho national
as per the particulars he provided the police at the time of his
arrest.
[32]
In part, this
information set in motion the investigating officer to request Home
Affairs to verify the status or movement of the
said plaintiff to
determine whether he entered the country legally and whether he has a
valid visa in his passport. According to
the Movement Control System
the was no record of the plaintiff.
[73]
This is not a case where the plaintiff was detained and nothing
happened until the case was withdrawn, hardly. The investigation
diary clearly sets out the attempts made to trace the outstanding
suspects. The arrest of the plaintiff was based on a reasonable
suspicion, not certainty that the plaintiff is guilty.
[74]
It is argued on behalf of the plaintiff that if on the 20th of March
2019 there was no possibility of a conviction of
the plaintiff on the
evidence contained in the police docket, such possibility did not
exist on the 1st of March 2019, when the
prosecution was initiated.
It is the view of this court, that Mr De Vries had an honest belief
in the guilt of the plaintiff when
the matter was placed, based on
the doctrine of common purpose; in the belief that the outstanding
suspects will be traced and
the fact that plaintiff only presented a
copy of his passport on the day the matter was withdrawn. Thus, the
conduct of Mr. De
Vries was objectively reasonable when he at first
appearance requested a postponement in terms of section 50(6) to
obtain bail
information, taking into account that as part of the
grounds listed in section 60 (a) to (e), the likelihood of evading
trial,
is a key consideration. The plaintiff bore the onus to show
that the interest of justice permitted his release, but for reasons
known only to the plaintiff did he not take the investigating officer
nor the court into his confidence, to present his passport,
albeit a
copy, for verification. This court agrees with the contention as made
by Mr De Vries, in that the words "insufficient
evidence to
argue common purpose at this stage" does not mean that there was
"no" evidence against the plaintiff.
[75]
This court is of the view that the 2nd defendant had reasonable and
probable cause which entailed an honest belief founded
on reasonable
grounds that the institution of proceedings was justified.
[76]
In the result the following order is made
[76.1]
Plaintiffs action is dismissed with costs.
AFRICA,
AJ
APPEARANCES:
COUNSEL
FOR THE PLAINTIFF: Adv.
Mazibuko
Instructed
by: Mazibuko
and Wesi Inc
COUNSEL
FOR THE DEFENDANTS: Adv.
Nhlapo
Instructed
by: State
Attorney
[1]
Page 67 Exhibit Bundle "A" refers incorrectly to section
30(6) if regard is had to the reason for the postponement.
[2]
As depicted on pages 81-82 of Exhibit Bundle "A".
[3]
Page 10 of the exhibit bundle.
[4]
Affidavit in terms of section 212 of Act 51 of 1977
[5]
Of the
Criminal Procedure Act 51 of 1977
.
[6]
Of the
Immigration Act 13 of 2002
.
[7]
Page 51 of the exhibit bundle.
[8]
Page 51.
[9]
[2008] ZACC 3
;
2008 (2) SACR 1
CC at page 11 C
[10]
1997 (1) SACR 379 (CC).
[11]
Zealand v Minister of Justice and Constitutional Development supra.
[12]
1986 (3) SA 568
(A) at 589E - F.
[13]
Law of Evidence, Paragraph 2.2.1.1, page 2-10
[14]
Vermaak v Parity Insurance Co Ltd
1996 (2) SA 312
(W) at 314C
[15]
1986 (2) 805 at G-H.
[16]
1986(2) SA 806 (A) at 818G-H.
[17]
1962 (3) SA at 229G-230A.
[18]
1998 (2) SA 654
(SE) at 658E-H
[19]
1958 (3) SA 105 (T) 152.
[20]
[2019) ZAGPPHC 566 at para 66 (saflii).
[21]
Gellman v Minister of Safety and Security 2008 (1) SACR 446 (W).
[22]
Tsose v Minister of Justice and Others
1959 (3) SA 10
(A) para 17.
[23]
Tose v Minister of Justice 1951 (3) SA 10 (A).
[24]
Minister of Safety and security v Sekhoto & another 2011 (5) SA
367 (SCA).
[25]
2021 (4) SA 585 (CC).
[26]
Para 110-111.
[27]
See Relyant Trading (Pty) Ltd v Shongwe
[2007] 1 All SA 375
(SCA)
para 5.
[28]
(In this case, of course, the case was withdrawn against the
plaintiff on... and requirement (d) need detain us no further.)
[29]
Wille's Principles of South African Law pp 1193-1194.
[30]
Page 46 of the exhibit bundle.
[31]
(see diary entries dated, 1/3/2019, 6/2/2019, 6/3/2019, 7/3/2019)
[32]
Page 53 of the exhibit bundle