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[2022] ZANCHC 84
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Ralehike v Minister of Police (1416/2020) [2022] ZANCHC 84 (14 December 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
NORTHERN
CAPE DIVISION, KIMBERLEY
Case
No:1416/2020
Heard:
16 – 17/08/2022
Argued:18/08/2022
Delivered:
14/12/2022
Reportable:
YES / NO
Circulate
to Judges: YES / NO
Circulate
to Magistrates: YES / NO
Circulate
to Regional Magistrates: YES / NO
In
the matter between:
GAOIKWATLHAE
BETHUEL RALEHIKE
Plaintiff
and
MINISTER
OF POLICE
Defendant
JUDGMENT
Mamosebo
J
[1]
In this action the plaintiff, Mr Gaoikwatlhae Bethuel Ralehike,
claims an amount of
R2 million in damages against the Minister of
Police for his alleged unlawful arrest on 21 November 2019 and
detention from that
date to 02 December 2019. The breakdown is as
follows: R1,000,000.00 for the unlawful arrest and deprivation of
freedom and R1,000,000.00
for
contumelia,
inhuman treatment
and emotional shock. The parties have agreed to separate merits
and quantum and only sought determination
of the merits at this
stage. Adv. T Tyuthuza represented the plaintiff while Mr. P
Visagie represented the defendant.
[2]
The issue that stands for determination is crisp, that is, whether
the plaintiff’s
arrest and detention was lawful as contemplated
in s 40(1)(b) of the Criminal Procedure Act 51 of 1977 (the CPA).
Couched
differently, whether there was information available to
cause the members of the South African Police Service (SAPS) to
reasonably
suspect the plaintiff and the two other men, Mr Simon
Sipho Ravuza and Mr Mike Langa, of having committed the offences of
fraud
and extortion with which they were accused of.
[3]
The following are common cause facts:
3.1
The citation of the parties is confirmed;
3.2
The
locus standi
of the plaintiffs is acknowledged;
3.3
The jurisdiction of the court to adjudicate the case;
3.4
That the members of the SAPS arrested plaintiff without a warrant;
and
3.5
The
onus
of proof and duty to begin rested upon the defendant,
the SAPS Minister.
[4]
The defendant called three witnesses who testified on his behalf:
D/Sgt Tebogo Samuel
Markus (Markus) and D/Sgt Moshopa Macdonald
Mojaki (Mojaki), who are members of the SAPS attached to the
Hartswater detective branch,
and Sgt Godwin Phushudi (Phushudi), a
member of the Crime Intelligence Unit (CIU) of the police service.
They are all experienced
police officers who have been with the
police service for 16, 17 and 18 years, respectively. The sum
total of the defendant’s
case is summed up hereunder.
[5]
On 21 November 2019 D/Sgt Markus received a telephone call around
08:00 in the morning
from a gentleman by the name of “Zenzile”
( whose full details were unknown to him), but is known to Markus as
one
of the elders in the community he grew up in, with information
that he will be meeting with the investigating officer (I/O) to give
him money in order for the I/O to have his son, who was arrested and
charged with rape, released from prison. “Zenzile”
was later identified as “Zenzile Nyane”. The
transaction was to take place in the vicinity of the post office.
[6]
Markus used an unmarked SAPS vehicle which he parked facing the
direction of the post
office so that he could observe the transaction
as it unfolds. He noticed Zenzile handing over something to
Mike Langa. The
recipient then walked towards a silver-grey
Nissan Almera sedan vehicle parked behind Markus’ vehicle.
Markus saw the
recipient using the rear and side mirrors of his
vehicle. He recorded the registration numbers of the Almera and
noticed
that there were two other occupants in the Almera. Markus
then made a U-Turn with his vehicle to establish whether the
occupants,
one of whom turned out to be the plaintiff, were members
of the SAPS. He was content that the occupants were not SAPS
members.
[7]
Markus drove to Standard bank to meet with Zenzile. Zenzile
reported that he
gave Mike Langa R100.00 (One Hundred Rand) in cash
and the balance of R2,000.00 (Two Thousand Rand) was to be exchanged
around
12:00 midday that same day. Markus assured Zenzile that
the men were not police officers and arranged with Zenzile for the
next transaction. Zenzile delivered R2,000.00 in notes to the
police station. The police made copies of the notes.
An
entrapment was set. They handed Zenzile the entrapment money to
give to Mike Langa who solicited the bribe.
[8]
There was back-up from additional SAPS members who were strategically
positioned around
the post office area to monitor and conduct
surveillance of this transaction. Markus parked his unmarked
vehicle at the prearranged
spot. He saw the same three men in
the Almera that he had identified earlier. Markus saw Mike
Langa counting the money
before he left. Plaintiff and Sipho
Ravuza remained in the Almera when the transaction took place. After
the transaction
Mike walked to the Almera. Markus and a
colleague followed him while others approached from the opposite
direction. Just
as he was about to board the vehicle the
recipient of the money, Mike Langa, noticed the police presence and
screamed “police”
as he attempted to flee and was
arrested.
[9]
D/Sgt Moshopa Macdonald Mojaki arrested the plaintiff as he was about
to occupy the
driver’s seat. The police searched the
briber, Mike Langa, and recovered the marked money. Markus
testified that
all three men acted in concert. It was put to
Markus in cross-examination that the plaintiff makes an income by
transporting
commuters with his private vehicle and that on that
specific day he transported the two men as part of his business. No
certificate
or licence for lawfully doing so was produced.
[10]
D/Sgt Mojaki was on duty on 21 November 2019 when Markus arrived with
Zenzile. Markus recounted
the stated call he received from
Zenzile and left. Around 14:00 Markus returned with Zenzile who
informed them that a certain
man by the name of “Mike”,
who identifies himself as a police officer, assists people with the
release of their children
who are arrested and detained by the
police, for a fee. At the time when the information was
related, the detectives were
in the company of the members of the
Crime Intelligence Unit within the SAPS. Zenzile carried cash
in notes which he gave
to the police to be photocopied. Thereafter,
they proceeded to the post office where they positioned themselves
strategically
and waited for the transaction to occur. Mojaki
stood watch outside Standard Bank which was across the road from the
post
office.
[11]
Mojaki testified that he saw Zenzile arriving with his wife and
stopped at the post office within
sight. Mike arrived wearing a
pair of light blue pants, a checkered shirt and red shoes. Zenzile
and Mike stood around
talking. Zenzile put his hand in the
right pocket of his pants and took out the money and handed it over
to Mike. Mike
then turned around and took the direction from
which he came. Mojaki and Markus followed him.
[12]
The plaintiff was seated in the vehicle. Mike spotted Sgt
Phushudi approaching from behind
the plaintiff’s vehicle and
shouted to the plaintiff “we are caught out”, and tried
to flee. Detectives
Mojaki and Markus apprehended him. The
plaintiff quarrelled with Sgt Phushudi. They furnished their
full names and
were all informed of the reason for their arrest,
being fraud and extortion. They were taken to the police
station where
Zenzile positively identified them as the same persons
who had impersonated police officers. He also identified their
vehicle.
The cash was registered in the SAP 13 exhibit
register.
[13]
SAP 14A is a Notice of Rights in terms of the Constitution attached
to the papers of the Minister
of Police evidencing the rights
explained to the plaintiff by the arresting officer. The
plaintiff signed the document at
14:30 on 21 November 2019. Below
his details appears those of the arresting officer, D/Sgt Mojaki.
Mojaki explained
that at the time of arrest he suspected that
the two gentlemen and plaintiff had committed crimes of fraud and
extortion.
[14]
It became clearer during cross-examination of Mr Mojaki by Ms
Tyuthuza that Nyane and Zenzile
was a reference to the same person:
“
Ms
Tyuthuza
:
So did Mr Zenzile Nyane on 21 November 2019 at 13:40 approach you
with the information?
D/Sgt
Mojaki
:
Yes, we were together in the office, all members were present in the
same
office. We then called other members of the Crime
Intelligence Service, Sgt Pitso or Commander.”
Mojaki
explained that at the scene was Mike Langa, who went to collect the
cash from Mr Zenzile Nyane, inside the vehicle was Bethuel
Ralehike,
the plaintiff, behind the steering wheel and Simon Sipho Ravuza
occupied the seat behind the driver. The front
passenger seat
was unoccupied. The window was rolled down.
[15]
Sgt Godwin Phushudi is attached to the Crime Intelligence Unit of the
police service. He
responded to the invitation of the
detectives on 21 November 2019 to aid with the entrapment process as
contemplated in s 252A
of the CPA. He knows the plaintiff as a
person of interest. Phushudi wore his civilian clothes. He
did not effect
the arrest of the plaintiff but Mojaki did. He
denied any knowledge that the plaintiff renders public transport
services
from Hartswater to Pampierstad. He witnessed the
arrest as he was part of the surveillance team. When one of the
suspects
noticed him he shouted “we are busted”.
There was no altercation as alleged by the plaintiff but he advised
the
plaintiff to cooperate with the police on the incident at hand as
it was unrelated to their previous encounters. It was put
to
Phushudi in cross-examination that one of the persons of interest had
informed Phushudi that the plaintiff was not involved
in the
commission of the offences. Phushudi refuted the statement and
stated that that same person, Mike, chose to engage
the services of
an attorney and will only speak through his attorney. Phushudu
further clarified that the plaintiff was hostile
towards him when he
followed up with an interview after their arrest.
[16]
Mr Visagie, for the Minister, did not call any further witness and
closed the case for the defendant.
The
plaintiff’s evidence
[17]
The plaintiff, Mr Gaoikwatlhae Bethuel Ralehike, was the only witness
to testify for his case.
He resides in Pampierstad and has, for
the past six years, used his private sedan vehicle, a Nissan Almera,
as public transport,
to convey people from Pampierstad to Hartswater.
On 21 November 2019 he left Pampierstad at 08:30 in the morning
transporting
two young men who were known to him to Hartswater. They
are Simon Sipho Ravuza and Mike Langa. They informed him that
they were meeting people in town next to Standard Bank. He
charged them each R50.00. On the way he also picked up a
female
passenger who was to alight at the taxi rank. When they reached
Standard Bank he parked the vehicle. Mike alighted
from the
vehicle and told him he was collecting something from a gentleman.
Mike was away for about 20 minutes while the
plaintiff, Sipho
and that lady waited with him in the car.
[18]
After Mike returned he asked the plaintiff to take them to the Spar
store to buy food. They
and the female passenger alighted at
the Spar. The plaintiff waited for them in the car. On
their return, they drove
and stopped in the shade next to a dentist’s
practice. They spent about 45 minutes there and ate together.
He
told Sipho and Mike that he needed to return to Pampierstad. They
released him on condition that he will fetch them when they
called
him. They called him when he was already back in Pampierstad.
He told them to wait for him at the same spot
near OK/Midas and
arrived there at 14:00. He alerted them that he has more
commuters around 14:00. They insisted that
he should wait. He
remained in the vehicle. They were both sitting on a bench but
Sipho later sat on the back seat
of his vehicle.
[19]
The plaintiff realised that Mike had left. As he was about to
drive off he noticed Sgt
Phushudu approaching and signalled for him
to stop and he did. Sgt Phushudu confiscated his vehicle keys
and informed him
that he was under arrest. There were several
police officers. Sipho attempted to flee but the police
apprehended him.
Sgt Phushudu locked both him and Sipho in the
police van. The plaintiff maintains that he was arrested by Sgt
Phushudu.
Mike was conveyed in another police vehicle. Mike
and Sipho explained to Sgt Phushudu that he (plaintiff) was not
involved
in the transaction but Phushudu became angry and ordered the
detainees to remove their belts and they were searched. He was
taken by D/Sgt Mojaki to the cells.
In
my view it is immaterial who amongst the entrapment team arrested who
as nothing untoward revolves around that. I pointed
out in para
3.4 (above) that it is common cause that the plaintiff was arrested
by members of the police.
[20]
In cross-examination the plaintiff was referred to the bundle under
the head “plaintiff’s
discovered documents” where
he deposed to an affidavit in support of a formal Schedule 5 bail
application, signed on 02 November
2019 in which he informed the bail
court at para 1.4 that he is unemployed with no income. The
plaintiff confirmed that the
statement is correct. In this
action he is informing this court that he is operating a transport
business for reward. His
response was that he is “pirating”,
which means operating without authority. He derived a meagre
income from
the venture. He was asked whether he instructed his
legal team about the presence of a lady in the vehicle. He
responded
in the negative. He did not notice that Sipho had
alighted from the vehicle and only realised that he had when he was
brought
back to the car by the police. He did not tell his
legal team that when they returned to the spot at Standard Bank he
sat
in the car while the two men sat outside.
[21]
At paras 4.2 and 4.3 of the Particulars of Claim plaintiff pleaded as
follows:
“
4.2
At the time when the plaintiff was arrested he told the police that
he was not involved in the commission of the
alleged offence. Also,
the other two persons [Mike and Sipho] who were arrested with the
plaintiff confirmed the same. Nevertheless,
the police proceeded to
arrest the plaintiff.
4.3
Even during the first appearance of the plaintiff [in court] it was
said, by accused one (1),[Madoda David
“Mike” Langa] in
court and to the police that the plaintiff was not involved in
alleged commission of the said crime
but the police insisted on his
further detention.”
Against
the backdrop of the aforementioned plea Mr Visagie put it to the
plaintiff that these pleaded particulars are not borne
out by what
was stated by the plaintiff in the statement regarding an interview
with the suspect [the plaintiff] at page 23 of
the defendant’s
index bundle volume 1. Counsel submitted that it cannot be
correct because when the plaintiff was asked
whether he wished to
make a statement he said he will make a statement at court.
[22]
The plaintiff was further asked in cross-examination whether he had
told his legal team that
he was arrested by Sgt Phushudi. He
answered in the affirmative. He was however, referred to para 4
in the Index Pleadings
at page 5 where he pleaded the following:
“
4.1
On 22 November 2019 the plaintiff was unlawfully and wrongfully
arrested and detained without a warrant of arrest
by a certain
Warrant Officer and other unknown members of the South African Police
Service (SAPS), stationed at Hartswater Police
Station …..”
The
plaintiff was persistent that he told his legal team that he was
arrested by Sgt Phushudi. He must be given the benefit
of the
doubt because the manner in which the particulars of claim were
couched was within the remit of his legal advisers. As
stated
before, this is really of no consequence.
[23]
It was put to the plaintiff that Mojaki testified that he suspected
him of being involved in
the illegal transaction that had unfolded in
his presence. The plaintiff’s response was that he cannot
dispute that
Mojaki was suspicious but that he was not aware that a
crime was being committed. The Court has to look at the facts
and
decide whether the arresting officers were justified in effecting
the plaintiff’s arrest.
The
plaintiff closed his case without calling any witnesses.
The
law
[24]
The remarks by Langa CJ in
Zealand
v Minister of Justice and Constitutional Development and Another
[1]
are apposite:
“
[24]
…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. Accordingly, it was sufficient in this
case for the
applicant simply to plead that he was unlawfully detained. This he
did.
The respondents then bore
the burden to justify the deprivation of liberty
,
whatever form it may have taken.”
In
this instance, the Minister of Police, who is in charge of the
members of the SAPS who arrested the plaintiff, bore the onus
of
proving that their action was justified in law. See
Minister
of Law and Order and Others v Hurley and Another
[2]
[25]
In
Minister
of
Safety
and Security v Slabbert
[3]
the
Court held:
“
[11]
The purpose of pleadings is to define the issues for the other party
and the court. A party has a duty to allege in the
pleadings the
material facts upon which it relies. It is impermissible for a
plaintiff to plead a particular case and seek to establish
a
different case at trial.”
[26]
Section 40(1)(b) of the CPA provides:
“
A
peace officer may without warrant arrest any person –
(a)
Who
commits or attempt to commit any offence in his presence;
(b)
Whom he
reasonably suspects of having committed any offence referred to in
Schedule 1, other than the offence of escaping from lawful
custody;…”
[27]
The Court in
Duncan
v Minister of Law and Order
[4]
enunciated
the following requirements for the defendant to succeed
in proving that the
arrest was lawful:
(i)
The arresting
officer was a peace officer;
(ii)
The arresting
officer entertained a suspicion;
(iii)
The suspect to
be arrested committed a Schedule 1 offence; and
(iv)
The suspicion
rested on reasonable grounds.
Analysis
of the defendant’s evidence
[28]
It is common cause that Markus, Mojaki and Phushudi are members of
the SAPS. They were
experienced, gave credible evidence and
were reliable witnesses. Their evidence was consistent and
probable. Mr Zenzile
Nyane was not called to give evidence. No
reason for this default was proferred. It would have been
prudent for Zenzile
to have testified. Notwithstanding this lacuna
the testimony presented covered his version in all respects. Zenzile
notified
the police about the offence that was being concocted by the
plaintiff, Sipho and Mike who, acting in concert, impersonated police
officers. He furnished the police with the exact times, morning
and afternoon, exact location, and gave the amounts of the
transaction demanded. He even went as far as cooperating with
the police to uncover the truth by setting up a trap.
[29]
The police, through entrapment, were able to recover the money that
Zenzile had paid to Mike
which matched the money they had
photographed earlier. It cannot be a
coincidence that Zenzile said
three men visited him at his home and
offered to assist him with the release of his child from police
custody and three men were
indeed at the scene and arrested in
relation to the same
transaction.
It is common cause that the plaintiff, together
with his co-perpetrators were caught red-handed in the commission of
a Schedule
1 offence.
[30]
Musi AJA, writing for a unanimous court, in
Biyela
v Minister of Police said
[5]
:
“
[34]
The standard of a reasonable suspicion is very low. The reasonable
suspicion must be more than a hunch; it should not
be an
unparticularised suspicion. It must be based on specific and
articulable facts of information. Whether the suspicion
was
reasonable, under the prevailing circumstances, is determined
objectively.
[35]
What is required is that the arresting officer must form a reasonable
suspicion that a Schedule 1 offence has been
committed based on
credible and trustworthy information. 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 the arrest harboured
a reasonable suspicion
that the arrested person committed a Schedule 1 offence.”
Analysis
of plaintiff’s evidence
[31]
Before it can be determined whether the defendant (the Minister)
discharged the
onus
reposed upon him it must be examined whether plaintiff’s
countervailing evidence displaced that onus. As alluded to
earlier, the plaintiff was a single witness. He could have
called Messrs Mike Langa and Sipho Ravuza and the unnamed lady
who
was in the vehicle with them when they waited for “Mike”
to return, to corroborate his evidence, but failed to
so. The
only reasonable inference that the Court can draw under the
circumstances is as enunciated in
Elgin
Finedays Ltd v Webb
[6]
:
“…
it
is true that if a party fails to place the evidence of a witness, who
is available and able to elucidate the facts, before the
trial court,
this failure leads naturally to the inference that he fears such
evidence will expose facts unfavourable to him …”.
[32]
The plaintiff took issue with who his arresting officer was and was
adamant that he was arrested
by Sgt Phushudu. However, in his
Particulars of Claim, which are his pleadings on which his case
rests, he pleaded that he
was arrested by an unknown warrant officer.
It is apparent that he either is not telling the truth about
being arrested by
Phushudi or is trying to cast doubt that the
arresting officer was not a peace officer. The fact of the
matter is that Mojaki
arrested him lawfully in the presence of his
colleagues.
[33]
The plaintiff claimed to be earning an income from “pirating”,
that is, operating
a public transport service without a permit or a
license to do so. The conflicting versions he presented under
oath in the
bail court hearing is that he was unemployed with no
income and the trial court version during which he maintained that he
was
operating this public transport to earn an income. This
carries with it an element of dishonesty. Whatever version is
preferred, if any, does not detract from what he did on the scene of
crime.
[34]
After waiting, according to the plaintiff, for about twenty minutes,
Mike returned to the vehicle
in which they were waiting and asked the
plaintiff to take them to the Spar store. The plaintiff obliged
without charging
additional fare. This is perplexing because
for a mere R100.00 he forfeited earning an income. The nameless
lady is
strangely no longer taken to her destination, the taxi rank.
[35]
Eksteen AJP, then, pointedly remarked in
National
Employers General Insurance Co. Ltd v Jagers
[7]
:
“
It
seems to me, with respect, that in any civil case, as in any criminal
case, the onus can ordinarily only be discharged by adducing
credible
evidence to support the case of the party on whom the onus rests. In
a civil case the onus is obviously not as heavy as
it is in a
criminal case, but nevertheless where the onus rests on the plaintiff
as in the present case, where there are two mutually
destructive
stories, he can only succeed if he satisfies the Court on a
preponderance of probabilities that his version is true
and accurate
and therefore acceptable, and that the other version advanced by the
defendant is therefore false or mistaken and
falls to be rejected. In
deciding whether that evidence is true or not the Court will weigh up
and test the plaintiff’s allegations
against the general
probabilities. The estimate of the credibility of a witness will
therefore be inextricably bound up with a
consideration of the
probabilities of the case and, if the balance of probabilities
favours the plaintiff, then the Court will
accept his version as
being probably true. If, however, the probabilities are evenly
balanced in the sense that they do not favour
the plaintiff’s
case any more than they do the defendant’s, the plaintiff can
only succeed if the Court, nevertheless
believes him and is satisfied
that his evidence is true and that the defendant’s version is
false.”
[36]
In summary. The plaintiff, acting in concert with Sipho Ravuza
and Mike Langa, held themselves
out to be police officers. They
conspired to illicit a bribe from Mr Zenzile Nyane whose son had been
arrested for an offence.
The context of the conspiracy was that
for a fee of R2,000.00 plus R100.00 they would have the charges
quashed. The
police set a successful trap and the bribers were
lawfully arrested. Plaintiff was present when both the R100.00
was paid
in the morning and when the R2,000.00 was paid in the
afternoon. Mike Langa also screamed at him that they were
“busted”.
He tried to drive away but was stopped.
This was an overt and active participation.
[37]
On a conspectus of the evidence before me, there is no doubt in my
mind that a reasonable suspicion
existed, premised on reasonable
grounds, that when the plaintiff and his associates were arrested,
they had committed fraud or
extortion or a related offence. The
SAPS members took precautionary measures by not only increasing
back-up in the form of
mobilising the Crime Intelligence Unit but
also ensuring that the implicated offenders were brought to book.
[38]
I therefore find that the evidence of the plaintiff is fabricated and
false and reject it in
its totality. I did not discern in the
papers or from the oral evidence that D/Sgt Mojaki and his colleagues
acted arbitrarily
or irrationally in the exercise of such discretion.
Essentially, all the four jurisdictional factors alluded to in
Duncan v Minister of Law and Order
referred to in para 26 of
this judgment (above) were established by the Minister. As
already alluded to, I accept the version
of the defendant as probable
and credible. I am satisfied that the plaintiff’s arrest
was justified and therefore lawful
as contemplated in
s 40(1)(b)
of
the
Criminal Procedure Act, 51 of 1977
.
[39]
It is trite that costs are within the discretion of the Court and
must be exercised judiciously.
The accepted principle is also
that costs normally follow the result. There is no reason for
me to deviate from the
general principle.
[40]
In the result, I make the following order:
The
plaintiff’s claim is dismissed with costs.
M.C.
MAMOSEBO
JUDGE
OF THE HIGH COURT
NORTHERN
CAPE DIVISION
For
the plaintiff:
Adv.
T Tyuthuza
Instructed
by:
Motlhamme
Attorneys
For
the defendant: Mr
P Visagie
Instructed
by:
Office
of the State Attorney
Kimberley
[1]
[2008] ZACC 3
;
2008
(4) SA 458
(CC) at 468 para 24
[2]
1986
(3) SA 568
(A) at 589E
[3]
[2009]
ZASCA 163
;
[2010] 2 All SA 474
(SCA) at para 11
[4]
1986
(2) SA 805
(A) at 818G-H
[5]
[2022]
JOL 52757
(SCA) at paras [34] and [35]
[6]
1947
AD 744
at 745
[7]
1984
(4) SA 437
(ECD) at 440E - G