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[2022] ZAECGHC 2
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Korkie v Minister of Police (2129/2020) [2022] ZAECGHC 2 (1 February 2022)

IN THE HIGH COURT OF SOUTH
AFRICA
EASTERN CAPE DIVISION,
GRAHAMSTOWN
CASE
NO. 2129/2020
2129.2020 Korkie v Minister of Police
(01 February 2022)
RICARDO LLEWELEN
KORKIE

Plaintiff
and
MINISTER OF
POLICE

Defendant
JUDGMENT
Bloem J.
[1]     The plaintiff instituted a claim for
damages in the sum of R450 000.00 against the Minister
of Police
for malicious, alternatively wrongful, arrest and detention.
He instituted another claim for damages in the
sum of
R200 000.00 for malicious prosecution.  He alleged that at
approximately 01h30 on Sunday, 18 August 2019 and at
King William’s
Town he was arrested by a member of the South African Police Service
on a false charge of being in possession
of a firearm without a
licence.  After his arrest, he was detained until after his
appearance in court on 19 August 2019
when he was granted
bail.  The case was postponed on three occasions.  The
state withdrew the charge against him on 22
November 2019.  The
plaintiff alleged that, when the law was set in motion against him on
18 August 2019, the member
had no reasonable or probable
cause for doing so, had no reasonable belief in the truth of the
information given to him and acted
mala fide
and
animo
injuriandi
.
[2]     In respect of the plaintiff’s
claim based on his arrest and detention, the defendant admitted
that
the plaintiff was arrested without a warrant of arrest by
Siyabulela Witvoet, a police officer.  He pleaded that
the
arrest was lawful since sergeant Witvoet, who was a constable at the
time of the plaintiff’s arrest, could, in terms
of section
40(1)
(a)
of the Criminal Procedure Act,
[1]
arrest the plaintiff without a warrant of arrest since he committed
an offence in his presence.  In the alternative, the defendant

pleaded that sergeant Witvoet reasonably suspected the plaintiff, in
terms of section 40(1)
(h)
of the Criminal Procedure Act, of
having committed an offence under the laws governing the possession
or disposal of arms or ammunition,
various alleged offences having
been pleaded in detail.   The defendant also denied that
the plaintiff was unlawfully
detained, pleading that his detention
was justified in terms of section 39(3)
[2]
and section 50(1)
[3]
of the Criminal Procedure Act.
[3]    The defendant admitted that sergeant
Witvoet set the law in motion against the plaintiff by laying a

charge against him of being in possession of a firearm without a
licence.  He denied that sergeant Witvoet acted wrongfully,

unlawfully and intentionally or gave false and clearly wrong
information.  He pleaded that the charge against the plaintiff

was
bona fide
and reasonable and that sergeant Witvoet
had reasonable cause for laying the charge against the plaintiff.
[4]    The plaintiff testified that he resides in
Port Elizabeth.  However, due to work commitments, he
sometimes
works out of town.  He did not go home over the weekend of 17/18
August 2019 but remained in King William’s
Town.  During
the evening of 17 August 2019 he and his friends consumed some
alcoholic drinks.  He testified that he
had consumed the
contents of two 340ml bottles of beer before he and three of his
friends set off from their guest house to a night
club in town to
purchase more alcoholic drinks.  Before they entered the night
club, he saw one of his friends, Jenrick, pointing
an airgun
[4]
at another person.  He went to Jenrick, grabbed the airgun from
him and put it in his pocket.  They went into the night
club
where they remained for approximately twenty minutes and emerged with
the liquor that they had purchased.
[5]    As they were leaving, he saw some
policemen outside the night club.  He also saw the person at

whom Jenrick had earlier pointed the airgun.  That person
pointed at Jenrick as the person who had pointed a firearm at him
and
at him (the plaintiff) as the person who had grabbed the firearm from
Jenrick.  A police officer, who turned out to be
sergeant
Witvoet, asked him whether he had the firearm.  He produced the
airgun.  Sergeant Witvoet looked at it and took
out its
magazine.  The plaintiff testified that sergeant Witvoet must
have seen that there were a gas canister and small silver
balls in
the magazine, that there were no rounds of ammunition inside it and
that it was therefore not a real firearm.
[6]     He asked the policemen whether they
would arrest him despite the fact that what was in his possession
was
not a real firearm.  They told him not to talk to them at the
scene but at the police station.  He and Jenrick were
placed in
a police vehicle and taken to the police station where they were
detained in a cell until their appearance in court on
the Monday
morning.  The case against Jenrick was withdrawn at their first
appearance.  The magistrate set bail for him
in the sum of
R500.00 and postponed the case to 19 September 2019, on which date it
was postponed to 29 October 2019, whereafter
it was further postponed
to 22 November 2019, on which date the charge against him
was withdrawn by the state.
[7]     After the close of the plaintiff’s
case, the defendant’s application for absolution
from the
instance was dismissed.
[8]     Sergeant Witvoet testified that he
has been a member of the South African Police Service for the
past
thirteen years.  He reported for duty at 18h00 on 17 August 2019
and performed patrol duties with warrant officer
Ngese around the
central business district of King William’s Town.  When
they were near the night club in question during
the early hours of
18 August 2019, they were stopped by a young man who told them that
two youngsters pointed a firearm at him.
They proceeded towards
the night club. The complainant had a stick in his hand and pointed
out the two persons who he said had
pointed a firearm at him.
They went to the plaintiff and a person who was with him and enquired
which one had a firearm.
The plaintiff said that he had a gas
gun, which he said was not a real firearm.  Sergeant Witvoet
testified that the plaintiff
then handed the firearm to him.   He
looked at it and saw it as a 9mm pistol.  Many people had in the
meantime gathered
around them.  More police officers arrived on
the scene.
[9]     Sergeant Witvoet testified that,
when he made enquiries, the plaintiff confirmed that he had consumed

some beer.  He asked him whether he knew the dangers of a
firearm to a person who had consumed liquor.  He made those

enquiries after the plaintiff had told him that he had grabbed the
gas gun from his friend, Jenrick, who had pointed it at the

complainant.  The plaintiff repeated that he did not have a real
firearm.  Sergeant Witvoet said that he could not trust
that it
was not a real firearm since, according to him, the law had already
been broken when the firearm had been pointed at the
complainant.
He informed the plaintiff of his rights before arresting him.
[10]   He testified that the plaintiff was at all
times co-operative.  He arrested the plaintiff because the

complainant had reported that a firearm had been pointed at him.
According to him, the law was broken in that the firearm
was in the
plaintiff’s possession although he did not have a licence for
such possession and the plaintiff had explained
to him that he had
grabbed the gas gun from Jenrick.  He thought that by that act
the plaintiff endangered himself, Jenrick,
the complainant and nearby
property.
[11]   The plaintiff and Jenrick were taken to the
police station where sergeant Witvoet inspected the firearm.
He
pressed a button to release the magazine, similar to a 9mm pistol.
He saw that there were no rounds of ammunition in the
magazine.
Instead, there was an air canister inside it which was on top of a
spring with small silver iron balls on top of
the canister.  It
was the first time for him to see such a magazine.  He said that
he needed to establish what the nature
of that firearm was.  It
was entered into the relevant book at the charge office and placed in
a safe.  It was later
sent for ballistics examination.
[12]   He decided to have the plaintiff detained
because he feared that, if released, he might break the law again,

people might be robbed and people’s property might be damaged.
He also was unable to follow up on the plaintiff’s
Port
Elizabeth address that he had given to him.  In the
circumstances, he detained the plaintiff so that he could appear
in
court on the following day.
[13]   The onus was on the defendant to justify the
plaintiff’s arrest and detention.  The defendant
sought to
justify the plaintiff’s arrest on the basis of section 40(1)
(a)
and
(h)
of the Criminal Procedure Act.  He contended
that the plaintiff committed an offence in sergeant Witvoet’s
presence.
Section 40(1)
(a)
entitles a police officer to,
without warrant, arrest any person “
who commits or attempts
to commit any offence in his presence
”.
[14]   In the circumstances of this case, the
plaintiff’s arrest would be lawful if the defendant established

on a balance of probabilities that (1) the plaintiff was arrested by
a police officer; (2) the plaintiff had committed or attempted
to
commit an offence; and (3) the commission of the offence, referred to
in (2) above, or the attempted commission of that offence,
occurred
in the presence of the police officer.
[15]   The defendant’s case is that sergeant
Witvoet arrested the plaintiff because he was in possession of
a
firearm without a licence, in contravention of section 3(1)
(a)
or
(b)
and (2) of the Firearms Control Act.
[5]
Section 3 of the Firearms Control Act reads as follows:
“
3.
General
prohibition in respect of firearms and muzzle loading firearms
(1)
No person may possess a
firearm unless he or she holds for that firearm –
(a)     a
licence, permit or authorisation issued in terms of this Act; or
(b)     a
licence, permit, authorisation or registration certificate
contemplated in item 1, 2, 3, 4, 4A or
5 of Schedule 1.
(2)     No person
may possess a muzzle loading firearm unless he or she has been issued
with the relevant competency
certificate
.”
[16]   Section 120(1)
(a)
of the Firearms
Control Act makes it an offence for a person to contravene or fail to
comply with any provision of that Act.
It is accordingly an
offence to possess a firearm without holding for that firearm a
licence, permit or authorisation in terms
of the Firearms Control
Act.  An essential element of such an offence is that the person
should be in possession of “a
firearm”.
[17]   It is common cause that sergeant Witvoet
arrested the plaintiff and that the plaintiff did not have a licence

to possess a firearm.  If it is found that the plaintiff
possessed a firearm, then it follows that it must also be found that

the offence envisaged in section 3(1)
(a)
or
(b)
was
committed in the presence of sergeant Witvoet.  What remains to
be determined is whether the plaintiff, while in the presence
of
sergeant Witvoet, was indeed in possession of a firearm and thereby
committed an offence.
[18]   For purposes of section 40(1)
(a)
the
test is not whether sergeant Witvoet had a reasonable suspicion or
belief that the plaintiff committed the offence of possessing
a
firearm without a licence in his presence.  It is in this regard
that section 40(1)
(a)
differs from many subsections
[6]
of section 40(1) which entitle a police officer to arrest a person on
reasonable suspicion or reasonable grounds for believing
that an
offence had been committed.
[19]   The test is whether the arresting officer had
personal knowledge of facts upon which it can be concluded
that the
arrested person had
prima facie
committed an offence in his
presence.  By way of example, if the arresting officer walks
into a room and sees A hitting B
across his face with an open hand,
he would be entitled in terms of section 40(1)
(a)
to arrest A
because the facts observed by him disclosed the offence of assault.
That it later turned out that A acted in
self-defence and accordingly
acquitted, is irrelevant for purposes of the arrest.   One
has to look at the facts, as
they existed at the time of the arrest,
to determine whether it could be concluded that, on the face of it, A
committed the offence
of assault on B in the arresting officer’s
presence.
[20]   What were the facts which sergeant Witvoet
observed which led him to conclude that the plaintiff had committed

the offence of being in possession of a firearm without a licence?
He knew that the plaintiff did not have a licence to possess
a
firearm, because the plaintiff had told him so.  The plaintiff
told him that he did not require a licence because what he
possessed
was not a firearm, but a gas gun.  It was at that stage that
sergeant Witvoet should have ascertained whether or
not the device in
the plaintiff’s possession was a firearm. The plaintiff’s
evidence was that sergeant Witvoet inspected
the device on the
scene.  Sergeant Witvoet denied that.  I accept the
plaintiff’s evidence in that regard because
it is corroborated
by the contents of the statement that sergeant Witvoet made after the
plaintiff’s arrest. In that statement
sergeant Witvoet said
that he approached the plaintiff and asked if he had a firearm,
whereupon the plaintiff took out a 9mm pistol
from his pocket.
When he took out the magazine to make the firearm safe, he saw “
a
gas tube came out with no live ammunition
”.   Since
the situation had become volatile outside the night club, he could
and should have taken the plaintiff
to a place where he could inspect
the device to ascertain whether it was indeed a firearm.  He
inspected the device at the
police station.  But the plaintiff
had by then already been arrested.  If sergeant Witvoet was
certain or entertained
the belief that the device was a firearm, it
is unlikely that he would have inspected it at the police station.
Such inspection
is, in my view, proof that he entertained doubt
whether the device was indeed a firearm.
[21]   I do not accept sergeant Witvoet’s
evidence that, after he had inspected the device at the police
station, he still believed that it was a firearm.  Although the
exterior of the device might resemble the features of a 9mm
pistol,
once the magazine is taken from it, the difference between the
magazine of a 9mm pistol and an airgun is apparent.
The rounds
of ammunition of a 9mm pistol are stacked one on top of the other
with a spring at the bottom of the magazine.
When he saw the
magazine of the airgun, it contained an air canister on top of a
spring and smaller silver balls above the canister.
There were
no rounds of ammunition in the magazine of the airgun.
[22]   Sergeant Witvoet has training in firearms and
ammunition.  In my view, he should have known, after inspecting

the airgun, that it was not a firearm.  He should then have
given heed to what the plaintiff had said in that regard or he
should
have entertained serious doubt about whether or not it was a firearm.
[23]   It was agreed between the parties that the
plaintiff was found in possession of an airgun.  Section 5(1)

of the Firearms Control Act specifically provides that an airgun is
not regarded as a firearm for purposes of the Firearms Control
Act.
In the circumstances, because the plaintiff did not possess a firearm
at the time of his arrest, he did not require
a licence and did not
commit an offence in the presence of sergeant Witvoet.  On that
interpretation it must be found that
the plaintiff’s arrest
cannot be justified under section 40(1)
(a)
of the Criminal
Procedure Act.
[24]    In the alternative, the defendant pleaded that
sergeant Witvoet reasonably suspected the plaintiff of having

committed an offence in terms of section 40(1)
(h)
of the
Criminal Procedure Act.  Insofar as it is relevant to this case,
that subsection entitles a police officer to, without
warrant, arrest
any person:
“
who is reasonably suspected of committing or of having
committed an offence under any law governing … the possession
or disposal
of arms or ammunition”
.
[25]   The pleaded offences which sergeant Witvoet
allegedly reasonably suspected the plaintiff of having committed
are
that he was in possession of a firearm without a licence;
[7]
he was in possession of a device that had the appearance of a firearm
but was not capable of operating as such and cannot by superficial

examination be identified as an imitation;
[8]
alternatively he handled an airgun in a manner likely to injure or
endanger the safety of property of any person or with reckless

disregard for the safety of property of any person;
[9]
or in circumstance where it created a risk to the safety or property
of any person and not to take reasonable precautions to avoid
the
danger;
[10]
he handled an airgun while under the influence of a substance which
has an intoxicating or narcotic effect;
[11]
he pointed an airgun at persons without good reason to do so;
[12]
or he pointed a thing which was likely to lead a person to believe
that a firearm, an antique firearm or an airgun was pointed
at such
person without good reason to do so;
[13]
and he was in possession of an airgun with intent to commit an
offence.
[14]
[26]   There was no evidence that the plaintiff
pointed his airgun or a firearm at any person.  There was also

no evidence from which it could be concluded that the plaintiff was
in possession of his airgun with the intention to commit an
offence.
On the contrary, the undisputed evidence was that the plaintiff was
unaware that Jenrick had taken the plaintiff’s
airgun from the
guesthouse before they went to the night club.  The plaintiff
could accordingly not have had an intention
to commit an offence when
he was unaware that Jenrick had his airgun.
[27]   Regarding the plea that sergeant Witvoet
reasonably suspected the plaintiff of possessing a firearm licence,

it is found that, when sergeant Witvoet first saw the device, he
could have suspected it to have been a firearm.  However,
the
undisputed evidence is that, when the plaintiff handed the device to
him, he told sergeant Witvoet that it was not a firearm
but, what he
referred to as, a gas gun.  I accept the plaintiff’s
evidence that, while they were still in front of the
night club,
sergeant Witvoet looked at the device and its magazine.  He must
then have realised that the magazine did not
contain rounds of
ammunition.  Under those circumstances, sergeant Witvoet cannot
be said to have entertained a reasonable
suspicion that the plaintiff
was in possession of a firearm.  When sergeant Witvoet saw the
contents of the magazine, there
was, in my view, a duty on him to
have investigated the plaintiff’s exculpatory statement that he
was not in possession of
a firearm, but a gas gun.  In the
circumstances, although sergeant Witvoet might initially have had a
suspicion that the plaintiff
possessed a firearm, that suspicion was
not reasonable after he saw the contents of the magazine.
[28]   Section 4(1)
(e)
of the Firearms Control
Act does not prohibit the possession of an airgun.  It prohibits
the possession of an imitation of
a gun, cannon, recoilless gun,
mortar, light mortar or launcher manufactured to fire a rocket,
grenade, self-propelled grenade,
bomb or explosive device as well as
any frame, body or barrel of a gun, cannon, recoilless gun, mortar,
light mortar or launcher.
On the evidence, Sergeant Witvoet
could not reasonably have suspected the plaintiff of having committed
an offence by being in
possession of a prohibited firearm, as
envisaged in section 4(1)
(e)
of the Firearms Control Act.
[29]   There was no evidence to suggest that the
plaintiff handled his airgun in a manner that was likely to injure

any person outside the night club or that he handled the airgun with
reckless disregard for the safety or the property of others
or that
his handling of the airgun created a risk to the safety or property
of other persons and that he did not take reasonable
precautions to
avoid the danger.  The evidence was that, when sergeant Witvoet
asked whether the plaintiff or Jenrick had
the firearm, the plaintiff
handed his airgun to him.  There was simply no evidence to
suggest that an offence in terms of
section 120(3)
(b)
or
(c)
was committed or that sergeant Witvoet could reasonably have
suspected the plaintiff of having committed such an offence.
[30]   Although the plaintiff admitted that he had
consumed beer, there was no evidence that he was under the influence

thereof.  On the contrary, the evidence was that the plaintiff
was co-operative.  Before he climbed into the police vehicle,
he
had the presence of mind to hand his cellphone to his friends with
the request that his wife be informed of his arrest.
Sergeant
Witvoet testified that he informed the applicant of his rights when
he arrested him.  I am sure that sergeant Witvoet
would not have
taken the trouble of explaining the plaintiff’s rights to him
had he been under the influence of liquor.
In all the
circumstances, the defendant’s reliance on section 40(1)
(h)
of the Criminal Procedure Act cannot be sustained.  The
plaintiff’s arrest was accordingly unlawful.  The
plaintiff
adduced insufficient evidence to establish that sergeant
Witvoet made improper use of the legal proceedings to deprive him of
his
liberty.
[15]
Accordingly, although the plaintiff was unlawfully arrested, he was
not maliciously arrested.
[31]   Since the plaintiff’s arrest was
unlawful, it follows that his subsequent detention until his
appearance
in court on 19 August 2019 when he was released from
custody was also unlawful.
[16]
The defendant can rely on neither section 39(3) nor section 50(1) of
the Criminal Procedure Act to justify the plaintiff’s
detention
following his unlawful arrest.
[32]   I now consider whether or not the plaintiff was
maliciously prosecuted.  In order to succeed with his
claim for
malicious prosecution, the plaintiff was required to allege and prove
that (1) sergeant Witvoet set the law in motion,
meaning that he
instigated the criminal proceedings against the plaintiff; (2)
sergeant Witvoet acted without reasonable and probable
cause; (3)
sergeant Witvoet acted with
animo injuriandi
(malice); and (4)
the proceedings instituted against the plaintiff terminated in his
favour.
[17]
[33]   The enquiry as to whether or not the plaintiff
proved that sergeant Witvoet had reasonable or probable cause,
is
whether, when he instigated or initiated the criminal proceedings
against the plaintiff, he had such information as would lead
a
reasonable person to conclude that the plaintiff had probably been
guilty of possession of a firearm without a licence to hold
that
firearm.
[18]
[34]   For a defendant to be held liable for malicious
prosecution, the plaintiff must prove
animus injuriandi
by
showing that:
34.1.       the defendant intended to
cause the plaintiff to be prosecuted or must have foreseen
that his
conduct would cause the plaintiff to be prosecuted; and
34.2.       the defendant knew or
foresaw the possibility that there were no reasonable grounds for
the
prosecution, meaning that he was aware of the wrongfulness of his
conduct or foresaw the possibility that his conduct may be
wrongful;
but
34.3.       the defendant nevertheless
continued with his wrongful conduct, reckless as to the possible

consequences of his conduct.
[35]   It is common cause that sergeant Witvoet
instigated or initiated the criminal proceedings against the
plaintiff
by arresting him on a charge of being in possession of a
firearm without a licence, in contravention of the Firearms Control
Act,
and that those criminal proceedings terminated in the
plaintiff’s favour.  This court must determine whether,
when sergeant
Witvoet initiated those criminal proceedings, he had
reasonable or probable cause for doing so, and whether he had
animus
injuriandi
.
[36]   Sergeant Witvoet’s evidence was that the
device would be sent for ballistics examination.  He
must have
been aware that, without confirmation that the device was a firearm,
he had insufficient information at his disposal
to have acted with
reasonable or probable cause.  The fact that he wanted the
device to be sent for ballistics examinations
suggest that he was
unsure, at least at that stage, whether or not it was a firearm.
He knew that the ballistics examination
could either confirm that it
was indeed a firearm, as described in the Firearms Control Act, or
that it was not a firearm.
In other words, the possibility
existed that it might not have been a firearm.  Sergeant Witvoet
must have foreseen that his
arrest of the plaintiff would cause the
plaintiff to be prosecuted.  He must also have foreseen the
possibility that, if it
was not a firearm, there were no grounds for
the prosecution.  He must have foreseen the possibility that his
conduct may
under those circumstances be wrongful, but he
nevertheless continued with the assertion that the device was a
firearm, reckless
as to the consequences of his conduct.
[37]   In the circumstances, I am satisfied that the
plaintiff established that sergeant Witvoet acted without

reasonable and probable cause when he instigated the criminal
proceedings against the plaintiff and that, for purposes of malicious

prosecution, he acted with malice.  The plaintiff has
accordingly established that he was maliciously prosecuted at the
hands
of sergeant Witvoet.
[38]    I now deal with the quantum of the plaintiff’s
claims for unlawful arrest and detention and malicious
prosecution.
The plaintiff is married and employed.  He was arrested in
full view of his friends and many other
persons who gathered outside
the night club. He was deprived of his freedom for approximately 32
hours.  He was detained in
a cell at the police station under
very unpleasant circumstances.  He had to appear before a
magistrate on four occasions.
His undisputed evidence was
that his appearance before court caused him humiliation.
Furthermore he had to travel from
Port Elizabeth to King William’s
Town on at least three occasions to attend court.
[39]   Counsel for the plaintiff suggested that an
amount of R120 000.00 should be awarded for the plaintiff’s

unlawful arrest and detention and that the sum of R100 000.00
would be appropriate for his malicious prosecution.  Counsel
for
the defendant has suggested that the sum of no more than R50 000.00
should be awarded for the plaintiff’s unlawful
arrest and
detention.  No submission was made in respect of the quantum of
the plaintiff’s claim for malicious prosecution.
[40]   I have had regard to the authorities referred
to by both counsel.
[19]
Regard being had to the fact that the Constitution places a high
premium on the right to freedom, which includes the right
not to be
deprived of freedom without just cause, the plaintiff’s
personal circumstances, the circumstances under which he
was detained
and the humiliation when he appeared in court, I am of the view that
his damages should be set in the sum of R80 000.00
in respect of
his arrest and detention and R50 000.00 in respect of his
malicious prosecution.
[41]   There is no reason why the defendant should not
pay interest on the above sums calculated from the date of
service of
summons on the defendant to date of payment thereof.
[42]   The plaintiff could have instituted the above
claims against the defendant in the magistrate’s court.

Despite submissions to the contrary by counsel for the plaintiff, it
would, in my view, be inappropriate to order the defendant
to pay the
plaintiff’s costs on the High Court scale when the plaintiff
could have instituted the proceedings in the magistrate’s

court.  However, the plaintiff would be entitled to the cost of
counsel on the relevant magistrate’s court scale because
the
defendant raised defences which appeared, at least on the pleadings,
to be complex.
[43]   In the result, it is ordered that:
43.1.       The plaintiff was
unlawfully arrested on 18 August 2019.
43.2.       The plaintiff’s
detention after his aforesaid unlawful arrest until his first
appearance in the magistrate’s court, King William’s Town
at 09h00 on 19 August 2019 was unlawful.
43.3.       The plaintiff was
maliciously prosecuted.
43.4.       The defendant shall pay to
the plaintiff the sum of R80 000.00 as and for damages
for his
aforesaid unlawful arrest and detention.
43.5.       The defendant shall pay to
the plaintiff the sum of R50 000.00 as and for damages
for his
malicious prosecution.
43.6.       The defendant shall pay
interest on the sums of R80 000.00 and R50 000.000
at the
prescribed rate of interest, from the date of service of the summons
on him to date of payment.
43.7.       The defendant shall pay the
plaintiff’s costs of suit on the magistrate’s
court
scale, such costs to include counsel’s fees, which fees shall
not exceed thrice the amount specified in the applicable
tariff.
____________________________
G H BLOEM
Judge of
the High Court
For the
plaintiff:

Ms M du Toit, instructed by Peter Mckenzie Attorneys, Port Elizabeth
and N N Dullabh & Co, Grahamstown.
For the
defendant:

Mr W H Oliver, instructed by the State attorney, Port Elizabeth and
Netteltons Attorneys, Grahamstown.
Date
heard:

15, 16, 17 and 18 November 2021.
Date of delivery of
judgement:                    1

February 2022.
[1]
Criminal Procedure Act, 1977 (Act 51
of 1977).
[2]
Section 39(3)
of the
Criminal
Procedure Act reads
as follows:
“
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.
”
[3]
Section
50(1)
of the
Criminal Procedure Act deals
with the procedure to be
followed after the arrest of a person, for example, where he or she
shall be taken after arrest, that
he or she shall be informed of his
or her right to institute bail proceedings and by when he or she
shall be brought before a
court, if not released.
[4]
During his evidence the plaintiff
referred to the device as a gas gun, whereas sergeant Witvoet
referred to it as a firearm.
That device shall accordingly be
referred to as a gas gun, airgun and firearm interchangeably, albeit
that it is common cause
that it was an airgun.
[5]
Firearms Control Act, 2000 (Act 60 of
2000).
[6]
See subsections (b), (e) to (h), (k) to (o) and (q) of section
40(1).
[7]
In contravention of section 120(1)
(a)
as read with section (3(1)
(a)
or
(b)
.
[8]
In contravention of section 120(1)
(a)
as read with section 4(1)
(e)
.
[9]
In contravention of section
120(3)
(b)
.
[10]
In contravention of section
120(3)
(c)
.
[11]
In contravention of section 120(4).
[12]
In contravention of section
120(6)
(a)
.
[13]
In contravention of section
120(6)
(b)
.
[14]
In contravention of section
120(10)
(b)
.
[15]
Relyant Trading (Pty) Ltd v
Shongwe and another
[2007]
1 All SA 375
(SCA) at par 14.
[16]
Minister of Safety and Security v
Tyokwana
2015 (1) SACR 597
(SCA) at par 12.
[17]
Minister for Justice and
Constitutional Development and Others v Moleko
2009 (2) SACR 585
(SCA) at par 8.
[18]
Beckenstrater v Rottcher and
Theunissen
1955 (1) SA 129
(A) at 135G-136B.
[19]
Rudolph and others v Minister of
Safety and Security and others
2009 (2) SACR 271
(SCA); Rahim and others v Minister of Home Affairs
2015 (4) SA 433
(SCA);
Ndlovu
v Minister of Safety and Security
2014 (7K6) QOD 38 (ECG);
Mpange
v Minister of Safety and Security
2015 (7K6) QOD 133 (ECM);
Minister
of Police v Mahleza
(CA
106/2020) [2021] ZAECGHC 83 (14 September 2021);
Oriyomi
v Minister of Police
(14132/13)
[2020] ZAGPPHC 224 (6 April 2020); and
Ntombikhona
Maleshiyo v MEC for the Department of Health, Eastern Cape
(451/2018) [2020] ZAECBHC 28 (23 October 2020) and the authorities
referred to therein.