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[2022] ZAECMKHC 127
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Mfuku v Minister of Police (3916/2011) [2022] ZAECMKHC 127 (31 May 2022)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE
DIVISION, MAKHANDA)
Case No: 3916/2011
In the matter between:
XOLANI
THEO MFUKU
Plaintiff
And
THE
MINISTER OF POLICE
Defendant
JUDGMENT
BESHE J:
[1]
Plaintiff is suing the defendant for damages he alleges he suffered
as a result of having been unlawfully
arrested and detained by
employees of the defendant. He initially also alleged that he was
unlawfully assaulted by the defendant’s
employees. He has since
abandoned the claim for unlawful and wrongful assault.
[2]
It is common cause that plaintiff was arrested by members of the
South African Police Services (SAPS)
on the 14 August 2009 without a
warrant, in connection with a charge of robbery. The parties are not
ad idem
about the number of days plaintiff was detained.
Plaintiff alleges that he was detained for eleven (11) days.
Defendant pleaded
that he was detained for ten (10) days.
[3]
It is also common cause that the charge of robbery plaintiff was
facing was withdrawn on 17 December
2012.
[4]
Defendant denies that the plaintiff’s arrest was unlawful and
wrongful and pleads that it was
justified in terms of
Section 40
(1) (b) of the
Criminal Procedure Act 51 of 1977
.
[5]
Plaintiff testified that on the 14 August 2009 he was accosted by
three police officials at his home
situated at Hlalani, Makhanda.
They told him they were looking for a firearm he allegedly had in his
possession. He denied that
he did. Even though they searched his
room, no firearm was found. He was however bundled into a police
motor vehicle and taken
to the Makhanda police station where a
statement was saught from him, after which he was locked up. He
appeared in court on a Monday,
having been arrested on a Friday. He
was further detained until 24 August 2009 on which day he was
released on bail. Plaintiff
was arrested in connection with a charge
of robbery it being alleged that he robbed one
Mr Dotyeni
of a
firearm. He denied that
Mr Dotyeni
was in the company of the
police when he was arrested or that he pointed him out to the police
before the arrest. He confirmed
that after his first appearance in
court the trial matter was postponed for a formal bail application.
[6]
Captain Bovey
testified in support of defendant’s case.
His evidence revealed that the criminal case in respect of which the
plaintiff
was arrested was assigned to him on the 4 August 2009. He
interviewed the complainant
Mr Dotyeni
who told him he knew
the person who robbed him of his firearm and that he stayed at
Hlalani Township, Makhanda. They proceeded
to Hlalani Location where
Mr Dotyeni
pointed out the plaintiff as the person who robbed
him. This was also based on the fact that plaintiff allegedly
admitted in the
presence of spaza shop owner that he had
Mr
Dotyeni’s
firearm. However, a search of plaintiff’s
house did not result in the recovery of the firearm. He had obtained
statements
from both
Mr Dotyeni
and the spaza shop owner
Ms
Mayi
. He nonetheless took the plaintiff with him and detained
him. He testified that when the plaintiff was arrested the
complainant
was there to point out plaintiff’s place as well as
the plaintiff as he (
Bovey
) did not know him. It also
transpired that
Mr Dotyeni
had previously fingered another
suspect who it turned out was not linked to the robbery. Even though,
as a result of the earlier
incident he doubted the reliability of
Dotyeni’s
identification skills, he took comfort in that
his assertion was confirmed by independent witness in the form of
Ms
Mayi
. It transpired that plaintiff is alleged to have admitted to
having
Mr Dotyeni’s
firearm, not to robbing him, in the
presence of
Ms Mayi
. This was in response to being confronted
by
Mr Dotyeni
after allegedly recognising him as the person
who robbed him of his firearm on the 1 August 2009. Plaintiff
allegedly said the
firearm was at his house. Plaintiff is said to
have confirmed to the shop owner that he will give
Mr Dotyeni
his firearm back.
[7]
It is common cause that when plaintiff was questioned about the
firearm prior to his arrest he denied
knowledge thereof. He elected
not to make a statement. It is further common cause that at the time
of reporting the robbery (first
information of crime),
Dotyeni
did
not mention that he identified his assailant/s. In fact, when he
implicated one
Qubuda
(the person he first implicated) he
stated clearly that he did not recognise his assailants’ faces
but bases his identification
of
Qubuda
on his body structure.
By his own admission,
Bovey
gave
Dotyeni
a 50/50
trustworthy status but relied on the evidence of “an
independent witness” to compensate for the other 50%.
[8]
It was furthermore
Bovey’s
evidence that he had to act
with haste in view of the fact that a firearm was involved.
[9]
It is trite that in order to justify an arrest without a warrant in
terms of
Section 40(1)(b)
of the
Criminal Procedure Act
>, the
following jurisdictional facts must be present:
(i) The arresting officer
must be peace officer;
(ii) who must entertain a
suspicion that the arrestee committed a schedule 1 offence; and
(iii)
such suspicion must rest on reasonable ground.
[1]
It is trite that the test as to whether there was a “reasonable
suspicion” is determined by an objective standard,
namely “that
of the reasonable man with the knowledge and experience of a peace
officer based upon the facts and circumstances
then known to the
peace officer”.
[2]
[10]
As to how a reasonable suspicion is formed in
Mabona
and Another v Minister of Law and Order & Others
[3]
the following was said:
“
The
test whether a suspicion is reasonably entertained within the meaning
of s (40)(1)
(b)
is
objective (
S v Nel and Another
1980 (4) SA 28
(E) at 33H). Would a reasonable man in the second
defendant’s position and possessed of the same information have
considered
that there were good and sufficient grounds for suspecting
the plaintiffs were guilty of conspiracy to commit robbery or
possession
of stolen property knowing it to have been stolen? It
seems to me that in evaluating his information a reasonable man would
bear
in mind that the section authorises drastic police action. It
authorises arrest on the strength of a suspicion and without the need
to swear out a warrant, ie something which otherwise would be an
invasion of private rights and personal liberty. The reasonable
man
will therefore analyse and assess the quality of the information at
his disposal critically, and he will not accept it lightly
or without
checking it where it can be checked. It is only after an examination
of this kind that he will allow himself to entertain
a suspicion
which will justify an arrest. This is not to say that the information
at his disposal must be of sufficient high quality
and cogency to
engender in him a conviction that the suspect is in fact guilty. The
section requires suspicion but not certainty.
However, the suspicion
must be based upon solid grounds. Otherwise, it will be flighty or
arbitrary, and not a reasonable suspicion.”
This
approach has been followed in a long line of cases. See, for example
M
R v Minister of Safety and Security
[4]
and the authorities discussed therein. It is clear that a police
officer who seeks to rely on
Section
(40) (1)
to justify an arrest is required to carefully analyse the facts
before him before he comes to the conclusion that an arrest is
necessary. The reason for this requirement is obvious: An arrest is a
drastic invasion of person’s right to liberty. Did
Captain
Bovey
measure up to this required standard? Was his suspicion that
plaintiff had committed a
Schedule1
offence
in the circumstances one that was based on good and sufficient
grounds? Was it reasonable in the circumstances or facts
at his
disposal?
Captain
Bovey
had the following information at his disposal: (As succinctly pointed
out in plaintiff’s heads of argument).
In a statement obtained
from
Mr Dotyeni
on the day after he was robbed, he made no
indication that he was able to identify any of his three assailants.
Later that same
day a
Mr Qubuda
was arrested after being
pointed out by
Mr Dotyeni
. After taking over the docket,
Captain Bovey
obtained a statement from
Mr Dotyeni
where he clearly stated that he did not recognise any of the suspects
who robbed him. Further that he pointed out
Qubuda
because he
robbed him two years ago and he suspected him in respect of the
latter robbery because of his built. It is common cause
that
Mr
Qubuda
was released before
Captain Bovey
took over the
case due to lack of evidence. In yet another statement to
Captain
Bovey
,
Mr Dotyeni
asserted that on 9 August 2009 at 16H00
he recognised a black male person as the suspect who robbed him on
the 1 August 2009 at
20H30. He recognised his face. When he
confronted him asking him where his firearm was, he said it was at
his house. But, once
at his house, he did not produce same. At yet
another spaza shop, plaintiff confirmed to the spaza shop owner that
he will give
Mr Dotyeni
his firearm.
[11]
It is noteworthy that alarm bells did ring with
Captain Bovey
regarding the reliability of
Mr Dotyeni’s
evidence,
especially when plaintiff denied knowledge of the firearm. He
nonetheless acted on same, taking comfort on the fact that,
according
to him there was evidence from an independent witness – the
spaza shop owner. All the spaza shop owner apparently
confirmed was
that plaintiff said he would give
Mr Dotyeni
his firearm. She
did not witness the robbery. Can it be said that in these
circumstances,
Captain Bovey’s
suspicion was objectively
sustainable and therefore reasonable? In my view, the facts at
Captain Bovey’s
disposal pointed away from there being
good and sufficient grounds for suspecting that plaintiff had
committed robbery –
had robbed
Mr Dotyeni
. A close
objective scrutiny of the circumstances would have brought it home to
Captain Bovey
that
Mr Dotyeni’s
evidence is not
reliable. We know that the robbery took place at night. In his first
statement, he did not indicate that he identified
any of his
assailants. In a subsequent statement he expressly stated that he did
not recognise them. First, he points at a wrong
person. When he
points at the plaintiff, on the basis
inter alia
that he said
his firearm was at his house, no such firearm is recovered by the
police. Plaintiff denied knowledge of the firearm
to
Captain
Bovey
.
[12]
Based on the above, it is my considered view that
the suspicion that
Captain
Bovey
had was not based on good and sufficient ground and was therefore
unreasonable. Plaintiff’s arrest was therefore unlawful,
so was
his detention. Based on the authority of
Minister
of Safety and Security v Never Ndlovu
,
[5]
the unlawfulness did not cease with the matter being postponed in the
reception court without an enquiry whether it is in the interest
of
justice to detain him further. Which appears to have been the case in
the matter under consideration.
[6]
I have no difficulty in finding that the defendant is liable for the
initial detention as well as the further detention after the
first
appearance in court.
[13]
Plaintiff was arrested and detained on the 14 August 2009 and
released on the 24 August 2009, the date of
which bail was fixed and
after he paid bail, making that ten (10) days.
[14]
Plaintiff’s claim for damages is for a sum of R710 000.00.
However, in argument it was submitted
that a sum of R330 000.00
would constitute appropriate compensation for unlawful arrest,
detention and
contumelia
.
[15]
Regard being had to the facts of this case which are
inter alia
that the plaintiff now forty two (42) years old was detained for ten
(10) days; initially detained in Makhanda police station and
later
transferred Grahamstown Prison where he shared a cell with 15 others.
In circumstances where it was not possible to enjoy
the measly meals
served because cell mates would be using the toilet which was inside
the cell. He slept on the cement floor on
a thin matrass. I am of the
view that a sum of R330 000.00 will constitute appropriate
compensation for the damages suffered
by the plaintiff.
[16] In
the result, the following order is issued:
1. Defendant is to pay
plaintiff a sum of R330 000.00 for damages.
2. defendant is to pay
interest on such damages at the prescribed rate of interest from date
of judgment to date of payment.
3. Defendant is to pay
costs of suit.
N G BESHE
JUDGE OF THE HIGH
COURT
APPEARANCES
For
the Plaintiff:
Adv:
S H Cole SC
Instructed
by:
MILI
ATTORNEYS
110
High Street
GRAHAMSTOWN
Ref:
D Mili
Tel.:
046 – 622 7076
For
the Defendant:
Adv:
M Pango
Instructed
by:
STATE
ATTORNEY (PORT ELIZABETH)
C/o
NETTELTONS ATTORNEYS
118A
High Street
GRAHAMSTOWN
Ref:
Mr Nettelton
Tel.:
046 – 622 7149
Date Heard:
8 – 9 November 2021
Date Reserved: 9
November 2021
Date
Delivered: 31 May 2022
[1]
See
Duncan v Minister of Law and Order
1986 (2) SA 805
(A) at 811 H –
I.
[2]
Duncan
v Minister of Law and Order
supra
page 810 J – 811 A.
[3]
1988
(2) SA 654
(SE) at 658 E – H.
[4]
M
R v Minister of Safety and Security
2016 (2) SACR 540
CC at 553
(42).
[5]
788/11
[2012] ZACSA 189 30 November 2021.
[6]
See
De Klerk v Minister of Police [2019] [ZACSA] 32 CC at [74].