About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Mpumalanga High Court, Mbombela
SAFLII
>>
Databases
>>
South Africa: Mpumalanga High Court, Mbombela
>>
2022
>>
[2022] ZAMPMBHC 26
|
|
Dube v Minister of Police (A33/2021) [2022] ZAMPMBHC 26 (25 April 2022)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA,
MPUMALANGA
DIVISION, MBOMBELA
(MAIN
SEAT)
CASE
NO: A33/2021
REPORTABLE:
YES
/ NO
OF
INTEREST TO OTHER JUDGES:
YES
/NO
REVISED.
24
APRIL 2022
In
the matter between:
SENZO
THAMSANQA
DUBE
Appellant
and
MINISTER
OF
POLICE
Respondent
JUDGMENT
Coram:
Ratshibvumo J
et
Roelofse AJ
Roelofse
AJ:
[1]
The
appellant instituted an action for unlawful arrest against the
respondent in the Regional Division of Mpumalanga at Mbombela.
The
learned magistrate dismissed the appellant’s claim with costs
on 11 October 2020
[1]
after
having heard the evidence of the police officer who arrested the
appellant and the appellant.
[2]
The appellant says that the court
a
quo
has misdirected itself in that it
erred in law when it ruled that the respondent has discharged the
onus upon him on a balance
of probabilities that the arrest of the
appellant was lawful; erred in law by dismissing the appellant's
claim on the ground that
the arrest of the appellant by the
respondent was based on a reasonable suspicion. For the remainder of
the grounds of appeal,
the appellant relies on purported factual
miss-directions which led to factual findings that were wrong. It is
trite that a court
of appeal will only interfere in the factual
findings of a lower court if the factual findings were affected by
material misdirection
or if the court of appeal is convinced that the
factual findings were wrong. The evidence that was heard by the court
a quo
and
the findings it made must therefore be interrogated in order to
determine whether there was any material misdirection by the
learned
magistrate.
The law
[3]
An
arrest without a warrant is lawful if (a) the arrest was effected by
a peace officer; (b) at the time of the arrest the arresting
officer
had a reasonable belief that the plaintiff had committed a schedule
1 offence.
[2]
The defendant
has to show that; (c) the arresting officer entertained a suspicion;
(d) that the suspicion was reasonable; (e) and
that the arresting
officer exercised the discretion to arrest properly.
[3]
[4]
It was common cause that the
appellant was arrested without a warrant by a peace officer. What the
respondent had to establish on
a balance of probability was that the
arresting officer entertained a suspicion that the appellant
committed the robbery; that
the suspicion rested on reasonable
grounds and that the arresting officer has exercised his discretion
properly when the appellant
was arrested. The onus proving the
aforesaid was upon the respondent.
[5]
This is what was said in
J
E Mahlangu and Another v Minister of Police
[2021] ZACC 10
at para. 31:
‘
[31]
This approach was affirmed in Zealand in which – as in the
instant matter – the focus was on detention. There this
Court
held that:
“
It
has long been firmly established in our common law that every
interference with physical liberty is prima facie unlawful. Thus,
once the claimant establishes that an interference has occurred, the
burden falls upon the person causing that interference to
establish a
ground of justification. In Minister van Wet en Orde v Matshoba, the
Supreme Court of Appeal again affirmed that principle,
and then went
on to consider exactly what must be averred by an applicant
complaining of unlawful detention. In the absence of
any significant
South African authority, Grosskopf JA found the law concerning the
rei vindicatio a useful analogy. The simple
averment of the
plaintiff’s ownership and the fact that his or her property is
held by the defendant was sufficient in such
cases. This led that
Court to conclude that, since the common law right to personal
freedom was far more fundamental than ownership,
it must be
sufficient for a plaintiff who is in detention simply to plead that
he or she is being held by the defendant. The onus
of justifying the
detention then rests on the defendant. There can be no doubt that
this reasoning applies with equal, if not greater,
force under the
Constitution.”36 (Footnotes omitted.)
[32] It follows that in a
claim based on the interference with the constitutional right not to
be deprived of one’s physical
liberty, all that the plaintiff
has to establish is that an interference has occurred. Once this has
been established, the deprivation
is prima facie unlawful and the
defendant bears an onus to prove that there was a justification for
the interference.’
[6]
Whether the suspicion held by an
arresting officer was reasonable was addressed in
Minister
of Safety and Security v Magagula
(991/2016)
[2017] ZASCA 103
(6 September 2017):
‘
[8]
In this court it was common cause that the arresting officer was
Inspector Nel. The issue to be decided is whether or not Inspector
Nel had a reasonable suspicion that the respondent had committed the
offence of murder. If he had held such a suspicion then the
arrest
would have been lawful by reason of the provisions of
section
40(1)(b)
of the
Criminal Procedure Act 51 of 1977
.
[9] In Shabaan Bin
Hussein and Others v Chong Fook Kam & another it was held that a
suspicion ‘in its ordinary meaning
is a state of conjecture or
surmise where proof is lacking; ‘I suspect but I cannot prove’.
Suspicion arises at or
near the starting point of an investigation of
which the obtaining of prima facie proof is the end.
[10] The suspicion of the
arresting officer is reasonably held if, on an objective approach,
the arresting officer has reasonable
grounds for his suspicion.[3]
Once the required suspicion exists an arresting officer will be
vested with a discretion to arrest,
which he must exercise
rationally.’ [End notes omitted].
Evidence before the
court
a quo
[7]
Lieutenant-Colonel SS Lukhele
testified that he attended to a scene where a robbery was committed.
A person was arrested at the
scene. The person was suspected to have
been the diver of a getaway vehicle. The person named the appellant
and other persons as
co-perpetrators of the robbery. The person said
that the appellant was the driver of a second getaway vehicle.
[8]
A cellphone was found in the
person’s possession. The phone record revealed that there was
communication between that person
and the appellant on the day of the
robbery. Also on the same day, the person took the police to the
dwelling where the appellant
lived with his parents. The appellant
was not home when the police attended the dwelling.
[9]
A month later, an informant told
Lt-Col. Lukhele that the appellant was back at his residence. Lt-Col.
Lukhele activated the tactical
response team and went to the
appellant’s home. Upon arrival at the appellant’s
dwelling, Lt-Col. Lukhele saw that
a window at the back of the
dwelling was open and that the appellant was trying to escape through
the open window. The appellant’s
motor vehicle was searched. A
pair of gloves and a balaclava were found in the vehicle. Lt-Col.
Lukhele testified that the gloves
and the balaclava that was found in
the appellant’s vehicle were the same as those used during the
robbery. The appellant
tendered information about his involvement in
the robbery. The appellant was taken to the Malelane Police Station
in order to make
a confession. Arrangements were made in order for
the appellant to make the confession.
[10]
The appellant testified that he was
arrested at his residence. The appellant’s version is that the
police arrested him while
he was coming out of his room. The
appellant denied that he was arrested while fleeing through his
window. The police also searched
the appellant’s room. The
appellant confirmed that the police searched his vehicle but denied
that gloves and a balaclava
were found in his vehicle. The appellant
testified that the matter was subsequently withdrawn against him in
court.
[11]
Upon this evidence the learned
magistrate, amongst other things, found that, by volunteering a
confession, the appellant placed
himself on the scene of the robbery.
The magistrate found that the arresting officer
:
‘……cannot be faulted and the arrest, one can only
say is based on reasonable grounds.”
The learned magistrate further said as follows:
"I
am also satisfied that he is sufficiently linked to the commission of
an offence. I am satisfied that the suspicion which
was entertained
by the arresting officer is based on reasonable grounds. And I am
satisfied that the plaintiff failed on a balance
of probability to
prove the case against the Minister of Police on a balance of
probability. And based on that finding the Court
in satisfied that
the action of the plaintiff is supposed to be dismissed.’
Discussion
[12]
I should be immediately clear that
the appellant’s first ground of appeal that “
[T]he
court erred in law by ruling that the Respondent discharged the onus
upon him, on a balance of probabilities, that the arrest
and
detention was lawful and therefore justifiable.”
is
clearly wrong
.
From
the extract of the judgment referred to in the preceding paragraph,
is clear that the learned magistrate has found the appellant
has
failed to prove its case against the respondent on a balance of
probability. Does the learned magistrate’s finding which
clearly shows that the onus was thought to be on upon the appellant
(which is clearly wrong) invalidate the proceedings to such
an extent
for it being a material misdirection? I think not because, on the
evidence, properly considered, the claim had to fail
even if the onus
was applied correctly.
[13]
Lt-Col. Lukhele was given the name
of the appellant from a person who was arrested at the scene. A cell
phone that was found with
the person that was arrested at the scene
of the robbery, showed that contact was made with the appellant on
the day of the robbery.
The person took Lt-Col. Lukhele to the
appellant’s residence. When Lt-Col. Lukhele attended to the
appellant’s residence,
the appellant was not home and only
returned a month later. The appellant wanted to escape his arrest.
The appellant wanted to
offer information over his involvement in the
robbery. All of this shows objectively a reasonable suspicion that
the appellant
was involved in the robbery. Therefore, there could be
no doubt that the appellant’s arrest followed from a reasonable
suspicion-
held by Lt-Col. Lukhele that the appellant was involved in
the robbery.
[14]
Despite the error committed by the
court a quo in placing the onus on the respondent, in my view, the
evidence has established each
of the requirements for the appellant’s
arrest to be lawful. The appellant was identified as an accomplice by
a person who
was arrested at the scene of the robbery. The appellant
was not at his residence when the police attended there the same
night
of the robbery. The police acted upon information that the
appellant had returned to his home approximately a month later. The
appellant wanted to evade his arrest when he attempted to flee
through his bedroom window when the police arrived at his residence.
The appellant indicated that he wanted to confess to the commission
of the robbery.
[15]
Even though the learned magistrate
had misdirected himself in finding that the appellant had failed to
prove his case, the manner
in which the learned magistrate had
evaluated the evidence shows no material misdirection and neither am
I able to find that the
learned magistrate was wrong in dismissing
the claim. The outcome was correct.
[16]
With regards to the other grounds of
appeal which are directed at the factual findings by the learned
magistrate, I am not prepared
to interfere for the findings of the
court a quo was correct.
In
the premises, the following order is made:
The
appeal is dismissed with costs.
Roelofse
AJ
Acting
Judge of the High Court
I
agree.
Ratshibvumo
J
DATE
OF HEARING: 25 March
2022
DATE
OF JUDGMENT: 25 April 2022
APPEARANCES:
FOR
THE APPELLANT: MR. MP
MASEKO
INSTRUCTED
BY MP MASEKO INC ATTORNEYS
FOR
THE RESPONDENT: NO APPEARANCE
[1]
The
notice of appeal seeks to appeal the entire order and judgment of
the court a quo dated, according to the notice of appeal,
10
November 2020. The record of the proceedings record that the
proceedings were conducted on 11 October 2020 where after judgment
was delivered on the same day. I accept that the judgment date is
incorrectly reflected in the notice of appeal. Nothing turns
on this
issue.
[2]
Section
40(1)(b)
of the
Criminal Procedure Act 51 of 1977
. Subsections
40(1)(a) and (c) to (q) mentions the other circumstances under which
a person may be arrested without a warrant.
Those circumstances are
not relevant for purposes of this judgment. A schedule 1 offence
includes amongst others, robbery.
[3]
See:
Duncan v Minister of Law and Order
1986 (2) SA 805
(A) with regards
to the jurisdictional factors in under (b), (c) and (d). See: Louw
and Another v Minister of Safety and Security
and Others
2006 (2)
SACR 178
(T) with regards to the jurisdictional fact under (e). Also
see: Minister of Safety and Security v Swart (194/11)
[2012] ZA SCA
16
(22 March 2012).