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[2021] ZALMPPHC 4
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Mataba v Minister of Police (HCA23/2019) [2021] ZALMPPHC 4 (2 February 2021)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
LIMPOPO DIVISION,
POLOKWANE
CASE
NUMBER: HCA23/2019
In
the matter between:
TLOU
BERNARD MATABA
APPELLANT
And
MINISTER
OF POLICE
RESPONDENT
JUDGEMENT
KGANYAGO
J
[1]
The appellant has instituted action against the respondent alleging
that he was wrongly
and unlawfully arrested and detained by members
of the South African Police Services (SAPS) who were acting within
the cause and
scope of their employment. The respondent had defended
the appellant’s action. The respondent in its plea admitted
that the
appellant was arrested by members of the SAPS without a
warrant, and that the arresting officer, was authorised to arrest and
detain
the appellant in accordance with section 40(1)(b) of the
Criminal
Procedure Act
[1]
(CPA)
read with section 50(1) of the CPA.
[2]
A pre-trial conference in terms of section 54(1) of the
Magistrate
Court Act
[2]
was held before the Regional Court Magistrate MJ Wessels. In the
pre-trial minutes the parties have agreed to separate merits and
quantum during trial. The parties further agreed that the respondent
bear the onus in respect of merits of the case, whilst the
appellant
bear the onus in respect of quantum.
[3]
The plaintiff testified under oath and stated that on 6
th
July 2015 he was employed by Madiba Trucking as a crew. Madiba
Trucking had employed him on the 3
rd
July 2015. Before he
was employed by Madiba Trucking, he was working for an Indian man
known as Bigshow.
[4]
On 6
th
July 2015 one Freddy whom the appellant used to
work with at Bigshow phoned him telling him that he was looking for
employment
at Madiba Trucking. Freddy in the company of Bigshow went
to Engen garage on the 6
th
July 2015 where they found the
appellant. The appellant was with Mr Madiba who was the driver of the
truck when Freddy and Bigshow
came to him. On arrival Freddy told the
appellant that Bigshow alleged that he stole a truck loaded with
mealie meal. After that
Bigshow phoned the police.
[5]
The police came in three vehicles. On arrival of the police, Freddy
and Bigshow pointed the appellant
to the police as the person who
stole the mealie meal. The police told the appellant that they are
arresting him as Freddy and
Bigshow were alleging that he had stolen
and they are law enforcement officers. The appellant tried to explain
his side of the
story but they did not listen to him. The appellant
stated that even Mr Madiba told the police that the appellant was
with him,
but the police did not listen. He was put in one of the
police vans and taken to the police station.
[6]
On arrival at the police station he found that a docket had already
been opened. His finger prints
were taken and after that he was taken
to the police cells where they locked him in. He was arrested at
about approximately 6h00
in the morning. In the morning of the 7
th
July 2015, a certain policeman by the name of Sebola came in the
company of Bigshow together with someone whom they alleged he
was the
one who had stolen the mealie meal. Sebola took him, Bigshow, Freddy
and that person to a certain office. In that office
the appellant
gave Sebola an explanation, and Sebola told him that he was lying.
Later on the 7
th
July 2015 the appellant was released from
custody. The appellant denied committing any offence. The appellant
further testified
that whilst in police custody he was assaulted and
raped by other inmates who wanted him to share with them the money
that he had.
[7]
The respondent called Captain Sebola who testified under oath. He
testified that he started knowing
the appellant the day he was
arrested and that was during July 2015. That on that particular date
when he reported for duty he
found a docket already opened. In that
docket he found that the complainant alleged that he knew the people
who had stolen from
him.
[8]
Captain Sebola phoned the complainant who confirmed that he had
already made a written statement.
The complainant told him that one
of his stand in driver did not deliver the mealie meal he had loaded
at Progress Milling at the
place where it was supposed to be
delivered. The complainant told him that the truck which was supposed
to deliver had three people
who were the driver and his two crew.
That the appellant was one of the crew members. The complainant
further told him that the
drivers of his trucks are his permanent
employees, and when his drivers goes to deliver they will use casual
employees whom they
pick up from the street. After picking up the
casual employees, the driver will bring copies of their ID documents.
That is the
reason why the complainant was able to identify the
appellant as one of the crew members who was in his truck on the day
in question.
The complainant told him that he was with the appellant
at Engen garage.
[9]
Captain Sebola stated that as he was having other commitments, he
instructed his colleagues to
assist him by going to arrest the
appellant at Engen garage. His colleagues went to Engen garage where
they arrested the appellant
and brought him to the police station.
[10]
On arrival at the police station as the appellant was already
arrested, captain Sebola told the appellant
that his case was about
the stealing of the mealie meal bags on the way to Moletlane. He
explained to the appellant his constitutional
rights and also told
the appellant that he was not compelled to explain his side of the
matter, that he has the right to remain
silent and also the right to
get a legal representative. The appellant told him that he was not
going to say anything because he
was not involved in the matter. At
that time the complainant had already identified the appellant as one
of the occupiers of his
truck on the day in question. He believed the
complainant’s version and he decided to detain the appellant.
He completed
the SAP14A form which relates to the suspect’s
constitutional rights, and after completing it, he gave it to the
appellant.
He also completed the cell book stating where the
appellant was to be detained.
[11]
After detaining the appellant he investigated the matter further and
satisfied himself that he was having
a strong case against the three
suspects. The following day when Captain Sebola went to the cells the
appellant told him that he
wanted to talk to him. He told the
appellant that he was not compelled to make a statement. After
listening to the appellant’s
explanation, Captain Sebola
realized that he was not having a strong case against the appellant
as he initially thought, and he
decided to release him.
[12]
Captain Sebola denied that the appellant was employed by Madiba
Trucking, but that on the day in question
the appellant was
unemployed. Captain Sebola further stated that on the day in
question, the appellant took part in taking the
goods, that the
appellant had knowledge of the place where the goods were taken and
was part of the other suspects, although he
alighted on the way and
did not complete the journey with the other suspects. He denied
knowledge of the assault and rape of the
appellant whilst in police
custody.
[13]
On 24
th
May 2019 the court
a quo
dismissed the
appellant’s claim with costs. On 31
st
May 2019 the
appellant filed a notice in terms of Rule 51(1) of the Magistrate’s
Court Rules requesting reasons for judgment.
On 13
th
June
2019 the appellant filed his notice of appeal against the whole
judgment and orders of the court
a quo.
On 25
th
October 2019 the appellant filed two copies of the appeal record with
the registrar of this court. On 30
th
October 2019 the
appellant filed an application for condonation of late prosecution of
the appeal together with a notice of application
for a date of
hearing of the appeal.
[14]
In his condonation application, the appellant had stated that the
lateness of prosecuting his appeal was
caused by the problem that he
had encountered when transcribing the record of the proceedings in
the court
a quo
. He had stated that on 18
th
June
2019, he approached Lepelle Scribes to transcribe the record but
found that they were no longer occupying their known offices.
On 18
th
June 2019 he approached the registrar of the Regional Court and was
informed that the contract with Lepelle Scribes had ended and
that
the new contracted transcribers were Elt-Pro Transcriptions. He
approached Elt-Pro to transcribe the record. He was given
the
quotation for transcription on 5
th
July 2019. On the 9
th
July 2019 he paid their full amount. On 26
th
July
2019 he received a transcribed record which was not complete. On 29
th
July 2019 he wrote a letter to Elt-Pro Transcriptions notifying them
of the problem. On 28
th
August 2019 he received another
quotation from Elt-Pro Transcriptions for transcription of the
outstanding portion of the record
of the proceedings. He paid the
said amount of R29 645.60 the same day. They only received a
full transcribed record on 21
st
October 2019.
[15]
The respondent has filed its answering affidavit. In its answering
affidavit the respondent had stated that
the appellant’s
application for condonation was defective as it deals with
non-compliance with Rule 50(1) only, and did not
specifically pray
for the reinstatement of the lapsed appeal. That the appellant had
applied for a hearing date of the appeal on
19
th
November
2019 and has failed to comply with Rule 50(4)(a), and has not given
any explanation for his non-compliance.
[16]
It is trite that the factors which a court must consider when
exercising its discretion whether to grant
condonation includes the
degree of lateness, explanation for the delay, prospects of success,
degree of non-compliance with the
rules, the importance of the case,
the respondent’s interest in finality of the judgment of the
court below, and the convenience
of the court and avoidance of
unnecessary delay in the administration of justice.
(See
Dengetenge Holdings (Pty) Ltd v Southern Spheres Mining and
Development Company Ltd and Others
[3]
).
[17]
In
Ferris
v First Rand Bank
[4]
Moseneke ACJ said:
“…
the test
for condonation is whether it is in the interest of justice to grant
it. As the interest of justice test is a requirement
for condonation
and granting leave to appeal, there is an overlap between these
enquiries. For both enquiries, and the prospect
of success and the
importance of the issue to be determined are relevant factors.”
[18]
The first issue to be determined is whether the
appellant’s application for condonation is defective or not.
The appellant
in his application for condonation of late prosecution
of the appeal, is seeking an order that his late prosecution of his
appeal
be condoned and that he be granted leave to prosecute his
appeal to finality. The respondent had submitted that the appellant
has
failed to specifically pray for the reinstatement of the lapsed
appeal. The appellant’s prayer is clear, that he be granted
leave to prosecute his appeal to finality. He can only be able to
prosecute his appeal to finality if the appeal has been reinstated.
By seeking that he be granted leave to prosecute his appeal to
finality in my view includes the reinstatement of the appeal that
has
lapsed. Therefore, the submission by the respondent that the
appellant’s application for condonation is defective
has no
merit.
[19]
The noting of appeal in this matter is in terms of Magistrate’s
Court Rules, whilst the
prosecuting of it is in terms of the Uniform
Rules of Court. In terms of Rule 49(6) (a) of the Uniform Rules of
Court, within sixty
days after delivery of a notice of appeal, an
appellant shall make written application to the registrar of the High
Court for a
date of hearing of the appeal. Rule 49(6)(7)(a) of the
Uniform Rules of Court provides that at the same time as the
application
for a date for the hearing of an appeal, the appellant
shall file with the registrar three copies of the record of appeal
and shall
furnish two copies to the respondent.
[20]
It is peremptory that when the appellant applies for a date of appeal
hearing, he/she must at
the same time file with the registrar and
serve with respondent copies of the record of the proceedings in the
court
a quo
. An appeal is prosecuted when the appellant or the
respondent applies for a date of hearing of the appeal. An
application for a
date of hearing of the appeal without filling the
records of the court
a quo
will be defective.
[21]
It is common cause that the appellant has applied for a date of
hearing of the appeal outside
the stipulated sixty days’
period. The sixty days’ period in this matter has lapsed on
20
th
August 2019. The record was filed on the 25
th
October 2019 and application for a date of hearing of the appeal was
filed on 30
th
October 2019. The appellant’s
application for date of hearing of the appeal was 50 days late. In my
view, 50 days is not
that extremely excessive.
[22]
In his founding affidavit, the appellant has spelled out the
obstacles he had encountered in
trying to transcribe the record; the
date of each incident; and what action he had taken in trying to
speed up the process of transcribing.
In my view the appellant has
given a full, detailed and accurate account of the cause of the
delay. Therefore, his explanation
for the delay is adequate.
[23]
With regards to prospect of success, the parties in their pre-trial
minutes have agreed that
the respondent bore the onus of prove on
merits. However, without any explanation, when the trial started, the
onus of prove was
shifted on the appellant despite the respondent
having pleaded that the arresting officer had acted in terms of
section 40(1)(b)
of the CPA. Without going deep into the merits of
the case, the appellant is having a fairly good chance on prospect of
success.
Such prospects of success are, in my view, reasonable.
[24]
It was not shown to this court what prejudice the respondent will
suffer as a result of the granting
of condonation. Accordingly, in my
view, it is in the interest of justice that condonation be granted.
[25]
Turning to the merits of the case, the respondent in their plea has
admitted arrest and detention.
The respondent has pleaded that the
arrest and detention were lawful and further that the arresting
officer was authorized to arrest
and detain the appellant in
accordance with section 40(1)(b) of the CPA read with section 50(1)
of the CPA.
[26]
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
[5]
)
[27]
The respondent had admitted the arrest and detention and even in the
pre-trial minutes, it was
agreed by the parties that the respondent
bore the onus in relation to the merits of the appellant’s
case. It is common cause
that the appellant was arrested without a
warrant.
[28]
In
Minister
of Law and Order v Hurley and Another
[6]
Rabbie
CJ stated the following:
“
An
arrest constitutes an interference with the liberty of the individual
concerned, and it therefore seems to be fair and just to
require that
the person who arrested or caused the arrest of another person should
bear the onus of proving that his action was
justified in law."
[29]
There was no duty on the appellant to prove his innocence before the
respondent could justify its actions
in arresting and detaining the
appellant. However, in the case at hand, it was the appellant who
started testifying as if the onus
was on him to prove that he was
unlawfully arrested and detained. The onus could have been on the
appellant if the arrest was pursuant
to a valid warrant wherein he
could have been required to prove the wrongfulness of the arrest and
detention.
[30]
Since the respondent had admitted arrest and detention, and the
appellant was arrested without a warrant,
the onus was on the
respondent to prove that their actions were justified in law. The
court
a quo
therefore, erred in allowing the appellant to
start testifying as if the onus was on him to discharge.
[31]
Despite what transpired during the trial in the court
a quo
,
the question is whether the required onus was discharged to prove
that the arrest and detention of the appellant was justified
in law.
In terms of section 40(1)(b) of the CPA, a peace officer may without
a warrant arrest any person whom he/she reasonably
suspects of having
committed an offence referred to in Schedule 1, other than the
offence of escaping from lawful custody.
[32]
It is trite that the jurisdictional facts must exist before section
40(1)(b) of the CPA 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 committed an
offence referred to in Schedule 1 of the CPA, 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, ie, he may arrest
the suspect.
(See
Duncan v Minister of Law and Order
[7]
)
[33]
An arrest without a warrant must be based on a reasonable suspicion.
On what is a 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
supra
at 579E-580E).
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.
[34]
The respondent called Captain Sebola as its only witness. Captain
Sebola was not the arresting officer, but
was policeman who had
detained appellant after he was arrested by the other officers.
Captain Sebola was not present when the appellant
was arrested,
however he is the police officer who had instructed these other
police officers to go and arrest the appellant.
[35]
Even though Captain Sebola had instructed the other police officers
to go and arrest the appellant, that
does not absolve the arresting
officer to first make an investigation into the essentials relevant
to the particular offence before
it can be said that there is a
reasonable suspicion that an offence has been committed since the
appellant was arrested without
a warrant. The police officer who was
supposed to have shared light whether the arrest was based on
reasonable suspicion that an
offence had been committed, was the
arresting officer. Captain Sebola’s evidence will not assist in
this regard as he was
not present during the arrest, and does not
even know how the appellant was arrested. The appellant was only
brought to him after
he was arrested. There are no facts which have
been put before the court
a quo
to show that the arrest of the
appellant was based on a reasonable suspicion that he committed an
offence referred to in Schedule1
of the CPA. The complainant who
opened the case was also not called to share any light in relation to
the case that he had opened
with the SAPS and how the appellant was
linked to that. The evidence of captain Sebola was merely hearsay and
had no probative
value.
[36]
In my view, the respondent has failed to discharge its onus of
proving that the arrest of the appellant was
based on a reasonable
suspicion that the appellant had committed an offence referred to in
Schedule 1 of the CPA. It therefore
follows that his arrest was
unlawful. Whatever steps that were taken after the unlawful arrest,
were tainted. The detention of
the appellant was based on an unlawful
arrest, and therefore it follows that the detention of the appellant
was also unlawful.
The court
a quo
has therefore erred in
dismissing the appellant’s claim.
[37]
For all the reasons set out above, the following order is made:
37.1 The appellant is
granted condonation for late filing of the record.
37.2 Condonation is
granted for the late filing of application.
37.3 The appeal is
reinstated.
37.4 The appeal is upheld
with costs.
37.5 The order of the
court
a quo
is set aside and substituted with the following:
“
The plaintiff
succeeds in his claim for unlawful arrest and detention against the
defendant with costs”
37.6 The matter is
remitted to the court
a quo
to proceed on quantum.
MF.
KGANYAGO J
JUDGE OF THE HIGH
COURT OF SOUTH
AFRICA, LIMPOPO
DIVISION, POLOKWANE
I concur,
MG.
PHATUDI J
JUDGE OF THE HIGH
COURT OF SOUTH
AFRICA, LIMPOPO
DIVISION, POLOKWANE
APPEARANCE:
Counsel
for the Appellant :
Adv.
GG Mashimbye
Instructed
by:
David
Mahapa Incorporated
Counsel
for the Respondent:
Adv.
MA Matlamela
Instructed
by:
State
Attorney Polokwane
Date
of hearing:
27
November 2020
Date
of Judgment:
2
nd
February 2021
[1]
Act
51 of 1977
[2]
Act
32 of 1944
[3]
[2013]
2 All SA 251
(SCA) para 11
[4]
2014
(3) SA 39
(CC) at para 10
[5]
2002
(5) SA 668
(SCA) at para 32
[6]
1986(3)
SA 568 (A) at para 859E-F
[7]
1986
(2) SA 805
(A) at 818 G-I