About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Limpopo High Court, Polokwane
SAFLII
>>
Databases
>>
South Africa: Limpopo High Court, Polokwane
>>
2022
>>
[2022] ZALMPPHC 35
|
|
Phoshoko v Minister of Police (1017/2013) [2022] ZALMPPHC 35 (27 June 2022)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
LIMPOPO DIVISION,
POLOKWANE
CASE
NO: 1017/2013
REPORTABLE: YES/NO
OF INTEREST TO OTHER
JUGDES: YES/NO
REVISED.
In
the matter between:
FUNKY
GABRIEL PHOSHOKO
PLAINTIFF
And
MINISTER
OF POLICE
DEFENDANT
JUDGEMENT
KGANYAGO
J
[1]
On 13
th
November 2012 the plaintiff was arrested by the
members of the South African Police Services (SAPS) on suspicion of
murder of one
George Makwasena. The plaintiff was detained in the
cells at Musina SAPS from the date of his arrest until he was
released on bail.
The plaintiff made his first appearance in Musina
magistrate court on 15
th
November 2012 wherein he was
remanded in custody. The plaintiff was ultimately released on bail on
21
st
November 2012. The charges against the plaintiff were
provisionally withdrawn on 10
th
January 2013. To date the
charges have not been reinstated against the plaintiff.
[2]
The plaintiff has instituted an action against the defendant for
alleged unlawful arrest and detention.
According to the plaintiff’s
particulars of claim, the members of the SAPS who have arrested him
were acting within the course
and scope of their employment. The
plaintiff in his particulars of claim, is claiming that the defendant
is liable for the entire
period of his detention. The defendant had
defended the plaintiff’s action. In its plea, the defendant had
conceded that
the plaintiff was arrested by members of the SAPS on
13
th
November
2012. The defendant denied that the arrest was unlawful, but pleaded
that the arresting officers were peace officers, and
had acted in
terms of section 40 (1) (b) of the
Criminal
Procedure Act
[1]
(the Act), as they reasonably believed that the plaintiff had
committed a Schedule 1 offence, which was murder.
[3]
The parties have agreed during their pre-trial meeting that merits
and quantum should be decided separately
in terms of Rule 33 (4) of
the Uniform Rules of Court (the Rules). This court is therefore
called upon to determine the issue of
liability only. Since the
defendant is relying on section 40 (1) (b) the Act, the duty to begin
rest on the defendant.
[4]
The defendant’s only witness to testify was Paul Ramukhadi. He
testified that on 13
th
November 2012 he was employed by
the SAPS and was Lt-colonel. He was stationed in Thohoyandou under
the organised crime unit (Hawks).
He has gone on retirement on 30
th
April 2022. At the time of his retirement he was colonel by rank.
[5]
On 13
th
November 2012 he was on duty in Thohoyandou when
he responded to information that there was a crime of murder that was
committed
in Musina. He arranged a team to go to the crime scene. On
arrival at the crime scene he found that one George Makwasena
(deceased)
had been shot dead and had died on the scene of crime.
They started their preliminary investigations by interviewing
witnesses
who were near the crime scene, they went to the taxi rank
to interview witnesses, and also interviewed the witnesses in the
vicinity
of Musina.
[6]
The deceased was shot on the street next to his homestead. The reason
why they interviewed the witnesses
at the taxi rank was because the
deceased was in the taxi industry, and during that period there was
feud in the taxi industry
around Musina. At about 17h00 to 18h00
whilst he was busy taking statements of witnesses, one of his
colleagues told him that there
was a man who was at Musina SAPS and
he was waiting for him (witness). Whilst still busy taking statements
from witnesses, he got
information that the plaintiff knows about the
crime. However, the evidence that he had collected so far did not
directly link
the plaintiff as the person who might have killed the
deceased, but that the people who had killed the deceased had run
into the
plaintiff’s car and left the scene in the plaintiff’s
car.
[7]
He also got information from the deceased wife and niece that a day
before the incident, the plaintiff
and the deceased were at court for
cases that they have opened against each other. On the day the
plaintiff and the deceased were
at court, the plaintiff had withdrawn
his case against the deceased but was not happy with the withdrawal,
and he told the deceased
that he will deal with him his own way, and
that the deceased interpreted it to mean that the plaintiff will kill
him. He also
got information that in the morning of the incident, the
deceased went to the taxi rank, and on arrival at the taxi rank, the
plaintiff
blocked his way. The deceased had to use the back entrance
in order to enter into the taxi rank.
[8]
On arrival at the taxi rank, the deceased had talked to his driver
and after that he left. When the
deceased left the taxi rank, his
driver was driving behind him. As they were driving, the plaintiff’s
car came from behind
and overtook the deceased and the deceased’s
driver. The deceased and his driver parted ways, and as the driver of
the deceased
was approaching Musina town, he got a call that the
deceased had been shot and killed.
[9]
He found the plaintiff waiting for him at Musina SAPS and arrested
him around 20h00. He arrested the
plaintiff based on the
circumstantial evidence, and he also wanted the plaintiff to explain
about the scene of the crime. Once
a person is arrested, he appears
in court and police officers have no say on his further detention.
[10]
The witness was cross examined and he conceded that constable Ravele
in his police statement has stated that
one Knowledge Gatsi had
informed him that he saw the deceased been shot from a distance. The
witness further conceded that Knowledge
Gatsi in his police statement
has stated that he saw two guys who shot the deceased, and after
shooting the deceased the two guys
left the scene on foot running
towards the railway line and thereafter they disappeared. The witness
further conceded that according
to the statement of Gatsi, he was
able to identify one of the killers. When the witness was asked why
he had ignored the statement
of Gatsi, he stated that he did not
ignore it, but had taken a follow up statement in order to clarify
the first statement. Under
re-examination the witness stated that the
statement of Gatsi was not helpful in identifying the suspects. That
concluded the evidence
of the defendant and it closed its case.
[11]
The plaintiff took the witness stand and testified under oath. He
testified that in the morning of the 13
th
November 2012 he
was driving his Toyota Hilux bakkie from Polokwane to Musina. He went
to Polokwane to fetch the diff for his combi
which was operating at
Beitbridge Border Post. As he was about 500 metres to arrive at the
border, he met the deceased who was
driving his black BMW vehicle on
N1 road. When he met the deceased he flickered him the lights of his
vehicle, and the deceased
flickered back. The deceased was driving
towards Nancefied township, and it was around 7h20 to 7h25.
[12]
On arrival at the taxi rank at the border, he found that his driver
was going to load passengers. He told
his driver that he will deliver
the diff at one Sam the mechanic, and that after offloading the
passengers his driver must take
the vehicle to the mechanic so that
he can fit that diff. From there he went to the garage bought a red
bull drink, and after that
went to the taxi rank to inform the que
marshals that his vehicle will be out for repairs that day, and will
be back as soon as
it has been fixed.
[13]
Whilst the plaintiff was still at the taxi rank, he got a call that
the deceased had been shot and killed
by the boys who sell illicit
cigarettes. He had never blocked the deceased vehicle, but had met
him on the N1 road. That day he
and the deceased were never together
at the taxi rank. After offloading the diff at the mechanic, he went
to his house. Whilst
at his house, at about 8h45 he got a call from
captain Ramovha requesting him to meet him at the police station. He
went to the
police station and waited for about one and half hours,
as captain Ramovha was not there. He then phoned the same number that
captain
Ramovha had used to phone him, and the captain told him to
wait and that they will come to the station.
[14]
After an hour one police officer Notsikelelo arrived at the station,
and told the plaintiff that it was alleged
that he had committed a
crime at Nancefield township. He told the police officer that he was
never in the township, and his vehicle
was fitted with a tracker, and
that they can check his movements. The said police officer told the
plaintiff that the people who
are going to interview him are still in
the township, and he must wait for them. Later about five police
officers arrived at the
police station and they questioned him about
his movements after coming back from the border. The said police
officers told him
that his double cab bakkie was seen at the scene of
crime where someone was shot. He denied that he was at the scene, and
also
told them that he was driving a single cab and not a double cab.
He showed the police officers his vehicle and they also took the
pictures of his vehicle. He also gave the police officers the phone
numbers the company of his car tracker so that they can check
his
movements. The other police officers left him in the office, and he
do not know whether they went to check his movements with
the car
tracker.
[21]
At about 21h00 captain Ramovha arrived and told the plaintiff that
they were going to charge him for murder.
He asked the police
officers the registration numbers of the vehicle that was at the
scene of crime, but they could not give him
that. He was then put
under arrest and detained. His warning statement was taken the
following day. He denied that he had told
the deceased that he will
deal with him. He denied that he had killed the deceased, and also
denied playing any role in the killing
of the deceased.
[22]
The plaintiff was cross examined and he conceded that after his
arrest he appeared in court, and was remanded
in custody. He also
conceded that he was released on bail after a week, and that the
charges against him were provisionally withdrawn
on 21
st
January 2013. He conceded that in his warning statement it is not
stated that he had informed the police officers about checking
the
movements of his car with the company of his car tracker, but
insisted that he had told them. That concluded the evidence of
the
plaintiff and he closed his case. Both counsel have addressed the
court on the merits of the case.
[23]
It is not in dispute that on 13
th
November
2012 the plaintiff was arrested and detained by the members of the
SAPS on suspicion of having murdered the deceased. The
defendant is
justifying the actions of the arresting officer by stating that the
arresting officer had acted in terms of section
40 (1) (b) of the
Act. Generally, an arrest and detention is prima facie unlawful and
wrongful, and it is for the defendant to
prove the lawfulness of the
arrest and detention once these are admitted. (See
Lombo
v African National Congress
[2]
).
[24]
In terms of section 40 (1) (b) of the Act, a peace officer may
without a warrant arrest any person whom he
suspects of having
committed an offence referred to in Schedule 1, other than the
offence of escaping from lawful custody. It is
trite that the
jurisdictional facts must exists before section 40 (1) (b) can be
invoked. Those jurisdictional factors are that
the arrestor must be a
peace officer, he must entertain a suspicion, it must be a suspicion
that the arrestee had committed an
offence referred to in Schedule 1
of the Act, and the suspicion must rest on reasonable grounds. If the
jurisdictional requirements
are satisfied, the peace officer may
invoke the powers conferred by the subsection, i.e, he/she may arrest
the suspect. (See
Duncan
v Minister of Law and Order
[3]
).
[25]
On what may be regarded as reasonable suspicion, there must be
evidence for the arresting officer to form
a reasonable suspicion
which is objectively sustainable. (See
Minister
of Law and Order v Hurley and Another
[4]
).
This will entail the arresting officer investigating the
circumstances of the particular offence which is alleged to have been
committed before it can be said that there is reasonable suspicion
that an offence has been committed.
[26]
The basis upon which the arresting officer had formed the alleged
reasonable suspicion, was on the information
that he got from the
deceased niece Tsepo Richard Makwasena and other witnesses who told
the arresting officer about what allegedly
transpired at court the
previous day between the deceased and the plaintiff. The arresting
officer also relied on the information
from the deceased’s
brother who according to his written police statement he was told
that on the date of the incident the
deceased was at the taxi rank
where the plaintiff had blocked the deceased road. The deceased’s
brother has further stated
in his police statement that he was
informed that the suspects who had shot the deceased got away from
the scene in the plaintiff’s
car.
[27]
According to the written statement of Richard to the police, he was
in the house when he heard the gun shots.
He went out to the street
to check what was happening and he saw a person jumping over the
fence from the side of the deceased’s
house holding a small
bag. On the street he saw the plaintiff’s grey Toyota single
cab, and also Mr Mudluli’s white
Inyathi taxi with tinted
windows which were parked. After the shooting the two vehicles drove
away from the scene at a high speed.
When he went to scene he found
that the deceased had been shot and killed.
[28]
However, this was not the only available information provided to the
arresting officer. Knowledge Gatsi whom
can be referred as an eye
witness had given the information to the arresting officer that he
saw the two people that have shot
the deceased, and he was about 30
metres from the scene and was also able to identify one of the
suspects. This eye witness had
also given the description of the
clothes that the suspects were wearing and the direction in which
they went. The witnesses whom
the arresting officer had relied on
them to form a reasonable suspicion, they all did not see the actual
shooting but only heard
gun shots. The arresting officer on his own
testimony had stated that he arrested the plaintiff based on
circumstantial evidence.
He therefore opted to ignore direct evidence
of Gatsi and to rely on circumstantial evidence of witnesses who
already knew the
feud between the deceased and the defendant. As
these witnesses have stated that defendant had threatened to kill the
deceased
the previous day, logic will tell that in matters of this
nature their first suspect will be the plaintiff.
[29]
In
Biyela
v Minister of Police
[5]
Musi AJA said:
“
[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. Whether that information would
later, in a court of law, be found to be inadmissible
is neither here
nor there for the determination of whether the arresting officer at
the time of arrest harboured a reasonable suspicion
that the arrested
person committed a Schedule 1 offence.
[36]
The arresting officer is not obliged to arrest based on a reasonable
suspicion because he or she has a discretion. The discretion
to
arrest must be exercised properly. Our legal system sets great store
by the liberty of an individual and, therefore, the discretion
must
be exercised after taking all the prevailing circumstances into
consideration.”
[30]
In my view, there was no basis for the arresting officer to have
ignored the information provided by Gatsi
who had given the arresting
officer direct evidence and also the description of the alleged
suspects. The arresting officer overlooked
the more credible evidence
and opted for circumstantial evidence. The arresting officer did not
take into consideration all the
prevailing circumstances before he
formed a reasonable suspicion to arrest the plaintiff, and in my
view, was not based on reasonable
grounds. Therefore, the arrest and
detention of the plaintiff was unlawful.
[31]
The next question to be determined is for which period is the
defendant liable for the unlawful detention
of the plaintiff. Counsel
for the plaintiff has submitted that the defendant is liable for
entire period up to date of been released
on bail. Counsel for the
defendant had submitted that in case the plaintiff succeeds with his
claim, the period to be considered
should be from the date of
detention up to the time of first appearance in court, as further
detention was sanctioned by the court.
[32]
In
De
Klerk v Minister of Police
[6]
Theron J said:
“
[62]
The principles emerging from our jurisprudence can then be summarised
as follows. The deprivation of liberty, through arrest
and detention,
is per se prima facie unlawful. Every deprivation must not only be
effected in a procedurally fair manner but must
also be substantively
justified by acceptable reasons. Since Zealand, a remand order by a
magistrate does not necessarily render
subsequent detention unlawful.
What matters is whether, substantively, there was just cause for the
later deprivation of liberty.
In determining whether the deprivation
of liberty pursuant to a remand order is lawful, regard can be had to
the manner in which
the remand order was made.
[63]
In cases like this, the liability of the police detention post-court
appearance should be determined on an application of the
principles
of legal causation, having regard to the applicable test and policy
considerations. This may include a consideration
of whether the
post-appearance detention was lawful. It is these public policy
considerations that will serve as a measure of control
to ensure that
liability is not extended too far. The conduct of the police after an
unlawful arrest, especially if the police
acted unlawfully after the
unlawful arrest of the plaintiff, is to evaluated and considered in
determining legal causation. In
addition, every matter must be
determined on its own facts – there is no general rule that can
be applied dogmatically in
order to determine liability.”
[33]
It is therefore not automatic that the Minister of Police will be
held liable for post-appearance detention,
it must be shown that
magistrate who had remanded the matter did not break the causation.
Once an arrested person is handed to
the court official, the
arresting officer does no longer have control on how the judiciary
handles the matter further. It must
therefore be shown that the
remand was a result of the unlawful conduct of the police officers,
or what role did the police officers
play in the matter been
remanded. No evidence was placed before court of the conduct of the
police after handing over the plaintiff
to the court officials. No
evidence was presented whether the investigating officer had opposed
bail when the plaintiff made his
first appearance in court, or had
requested seven days to verify some other issues. It is not for this
court to embark in a process
conjecturing evidence in order to held
the defendant liable where there is no factual basis in evidence, or
insufficient evidence
have been placed before court. In my view, no
sufficient evidence has been placed before court to enable it to
determine whether
the defendant should be held liable for the
detention of the plaintiff post-appearance in court.
[34]
In the result I make the following order:
34.1 The plaintiff
succeeds in his claim for unlawful arrest and detention against the
defendant from date of arrest up to the date
of his first appearance
in court with costs.
KGANYAGO
J
JUDGE OF THE HIGH
COURT OF SOUTH
AFRICA, LIMPOPO
DIVISION, POLOKWANE
APPEARANCES:
Counsel
for the plaintiff
:
P Phasha
Instructed
by
:
Phokoane Phasha attorneys
Counsel
for the defendant
:
Adv MS Monene
Instructed
by
:
Office of the State Attorney,
Polokwane
Date
heard
:
14
th
June 2022
Electronically
circulated on
:
27
th
June 2022
[1]
Act 51 of 1977
[2]
2002 (5) SA 668
(SCA) at para 32
[3]
1986 (2) SA 805
(A) at 818G-I
[4]
1986 (3) SA 568
(A) at 579E-580E
[5]
[2022] ZASCA 36
(01 April 2022) at paras 35 and 36
[6]
[2019] ZACC 32
;
2019 (12) BCLR 1425
(CC); 2020 (1) SACR (CC);
2021
(4) SA 585
(CC) (25 August 2019) at paras 62 and 63