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[2021] ZAGPPHC 74
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Jacobs v Minister of Police and Others (71322/2015) [2021] ZAGPPHC 74 (22 February 2021)
SAFLII
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Certain personal/private
details of parties or witnesses have been redacted from this document
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IN THE HIGH
COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO:71322/2015
REPORTABLE:NO
OF INTEREST TO
OTHER JUDGES:NO
REVISED
DATE:22/2/2021
In the matter between:
JACOBUS JOHANNES
JACOBS
PLAINTIFF
and
MINISTER OF
POLICE
FIRST DEFENDANT
THE NATIONAL DIRECTOR
OF
SECOND DEFENDANT
PUBLIC PROSECUTIONS
JUDGMENT
RAULINGA J
1.
The
plaintiff brought two claims against the Minister of Police and the
National Director of Public Prosecution, namely
1.1
A claim for unlawful arrest and detention; and
1.2
A claim for malicious proceedings and prosecution.
2. The matter was set down for hearing
on 15 August 2018, estimated to be finalised on 17 August 2018.
However,
on 17 August 2018 the matter was postponed
sine die
for counsel to submit heads of argument and where after to address
the Court.
3.
It seems to me that the defendant submitted its heads of argument on
14 September 2018, whereas
the plaintiff only submitted its heads on
9 January 2020.
4.
The matter was then placed on the roll for 14 September 2020 for
arguments, where after Judgment
was reserved.
5.
At the commencement of the trial on 15 August 2018, the plaintiff
formally withdrew claim 2 against
the second defendant, without
tendering costs, and proceeded with claim 1.
6.
The plaintiff testified that he was arrested on 27 January 2015 at
Kopfontein Border post en route
to Botswana where he had to deliver a
consignment. The arrest occurred as a result of the immigration
officer who called the police
stationed at the border post. No
warrant of the arrest was shown to him when he was arrested.
7.
According to the plaintiff, he was never informed of the reason for
his arrest which took place
some three hours after he had submitted
his passport to the immigration officer.
8.
The plaintiff testified that the police officer speculated about the
reason for his arrest. He
bases this on the fact that he was carrying
and transporting an engine to Botswana. Surprisingly his father was
allowed to cross
the border with the said engine.
9.
The plaintiff told the court that a female police officer in the
person of Constable Mmutle, told
him that she can’t tell him
the reason for his arrest, but will be told at Nietverdient Police
Station (Ekurhuleni). He confirmed
that he did not know Constable
Mmutle nor the prosecutor, and investigating officers prior to his
arrest. As such there could be
no ill feelings or grudges existing
between him and the police. He was treated well during the arrest,
except that he was not informed
of the reason for his arrest.
10.He
only became aware of the reason for his arrest on 29 January 2015 at
Benoni Police Station when his wife came to visit him.
His wife has
informed him that the reason for his arrest emanated from allegations
of housebreaking, which took place on 5 May
2013 at 37 Morris Street
.
11.The
next time he formally knew of the reason for his arrest was on 30
January 2015 when he was charged by Warrant Officer Nienaber.
12.According
to the plaintiff, he was also not provided with reasons for his
arrest at Nietverdient Police Station. He was detained
at
Nietverdient Police Station from 27 to 29 January 2015 when he was
collected by two detectives and taken to Benoni Police Station.
He
was then taken to the holding cells at the Benoni Magistrates’
Court where he was subsequently released without appearing
in Court.
13.Plaintiff
denied ever having been at 37 Morris Street on 5 May 2013 or that he
was involved in the break in.
14.The
plaintiff’s wife, Lizelle Jacobs, testified that she, plaintiff
and plaintiff’s father visited […] Street
during the
early part of 2013 as a property was available for purchase and they
were looking for a property to purchase.
15.Lizelle
deposed to a statement on 29 January 2015 after plaintiff
was arrested to confirm that, she was on the same
day informed by a
police officer that plaintiff was arrested for housebreaking, due to
the fact that his finger print was picked
up from the premises at […]
Street.
16.Constable
Mmutle testified that on 27 January 2015, she was on duty posted at
Kopfontein Border Post between South Africa and
Botswana.
17.ln
conjunction with the Home Affairs Department, the members of the SAPS
recovered a hit (circulation of information relating
to a person or
property) on the plaintiff. The plaintiff was as a result of the hit
handed to her, by the immigration officer.
After checking on the
computer, she realised that the plaintiff was sought by the police at
Benoni.
18.She
contacted Benoni Police Station and spoke to Detective Constable
Nemulodi who faxed her a warrant for the arrest of the plaintiff.
She
duly informed the plaintiff and arrested him.
19.She
completed an arrest statement and handed the plaintiff over to the
other members for detention and arrangement that he be
sent to the
Benoni Police Station.
20.She
stated that at the border they do not arrest a person without a
warrant, if there is no warrant, they contact the police
station
concerned, release the person and tell him or her to contact the
relevant police station, and make an entry in the OB.
She also
testified that the plaintiff was shown a copy of the warrant of his
arrest. She showed the plaintiff the warrant and he
declined to
receive a copy thereof.
21.The
evidence of Warrant Officer Mazibuko is that there were three black
male suspects spotted at number […] , Benoni.
Two of the
suspects were apprehended and one apparently ran away.
22.The
two apprehended suspects were charged on housebreaking and theft
committed on 5 May 2013 at number […]. They were
both found
not guilty and acquitted.
23.Mazibuko
testified that after .a year or two, he became aware of the possible
other suspect as a result of a sworn statement
appearing on page 12
of the index
24
According to the sworn statement the deponent states as follows :
“
On
2013-05-05 at 13:25 I went to […],Benoni for investigation for
the finger, palm and footprints. I lifted identifiable
prints by
means of scotch tape, after developing it with black powder...
The
fingerprint No1988316597 was entered into the computer system and the
set of fingerprints were identified as those belonging
to Jacob
Johannes Jacobus”. This is the plaintiff in this case.
25.The
crime was committed at around 10H00 and the fingerprints were lifted
later that day at 13H35
26.Warrant
Officer Mazibuko further testified that he asked in the neighbourhood
of […] if Jacob Johannes Jacobs was known
to anyone. Nobody
knew him in the neighbourhood, not even Mr William Botha the
caretaker complainant
27.He
proceeded to apply for a warrant of the plaintiff’s arrest as a
possible suspect due to the fingerprint that was found
at the scene
of the crime. He filled in a proforma affidavit in support of the
application for a warrant.
28.He
further testified that in applying and issuing of the warrant of
arrest, the prosecutor also relied on the presence of a fingerprint
at the scene as
prima facie evidence
.
29.During
cross- examination, Mazibuko confirmed that he had regard to the
statements in the dockets which he received on 6 May
2013.
30.Mazibuko
also testified that he conducted interviews with the two suspects
arrested on 5 May 2013. He caused warning statements
to be completed
on 6 may 2013. He testified that he opposed ball for the two suspects
because it was a serious crime and they were
found to have previous
convictions. The two suspects were prosecuted and were found
not guilty and discharged on or about
22 August 2013.
31.The
fingerprint was lift ed on the outside of a wardrobe just above the
handle in the first bedroom.
32.It
is important to note, that Mazibuko conceded that whereas in his
statement he said he visited the plaintiff’s address,
it was
clear that he did not know the plaintiffs address nor was the address
he alleged he visited that of the plaintiff. There
was no address
that could be visited.
33.At
the time when the J50 statement was deposed to, the two accused
persons were already acquitted. The caretaker who was present
at the
crime scene on 5 May 2013 confirmed under oath that he was not aware
of who the plaintiff might be. Mazibuko commissioned
the statement of
the
caretaker.
34.During
re-examination by the defendant's counsel, Mazibuko testified that he
had regard to an SAP69 report and based on three
different ID numbers
which also caused him to apply for the warrant of arrest. The SAP69
report was not part of the documents bundles
before Court.
35.Mazibuko
confirmed that he signed his statement on 2 October 2014. However, he
could not explain why the statement was only commissioned
on 11
December 2014.
36.Mazibuko
testified that the fingerprint result on its own was enough for him
to form a reasonable suspicion that plaintiff was
involved in the
break-in on 5 May 2013
37.The
test for whether the arresting officer entertained a reasonable
suspicion is objectively justifiable. This is not whether
a police
officer believes that he or she has a reason to suspect, but whether,
on an objective approach, he or she in fact has
reasonable grounds
for his or her suspicion-
Duncan V Minister of
Low and Order
[1]
.
38.The
plaintiff contends that Constable Mmutle arrested him without
exhibiting a warrant of arrest to him. He also refutes the
assertion
by Mmutle that she received a faxed copy of the warrant from Nemulodi
of the Benoni Police Station.
39.lt
is evident that Constable Mmutle; after checking on the computer she
realised that the plaintiff was being sought by the Benoni
Police.
She contacted Nemulodi who faxed her the warrant of arrest. When
shown the warrant, the plaintiff declined to receive a
copy
therefore. She then arrested the plaintiff and completed an arrest
statement and handed him over to the other members for
detention. She
also stated that at the border, they don’t arrest a person
without a warrant.
40.The
demeanour of Constable Mmutle is such that one is inclined to believe
her testimony, she was forthright and never contradicted
herself.
Moreover, it took more than three hours to process the plaintiff,
which points to the inference that at that stage she
was contacting
the Benoni Police for warrant to be faxed to her. There is no reason
why she couldn't have presented the warrant
to the plaintiff once she
received it.
41.The
contention that the plaintiff was not shown the warrant must be
dismissed outright.
42.Another
suspicious submission that must be dismissed is one by the defendant
that Mazibuko’s evidence on the SAPS69 in
so far as it suggests
to relate to the plaintiff, must be disregarded as it is incorrect ,
In that It relates to Willem Botha the
complainant in the house
breaking charge. I find this submission to be disingenuous in that in
my view Mazibuko’s evidence
is tainted with a number of
discrepancies.
43.The
only other issue that remains to be determined is whether Mazibuko
had regard to contents of the docket and if he applied
his mind
thereto properly in order to form a reasonable suspicion. In my view,
Mazibuko misdirected himself when he applied for
the issuance of the
warrant of arrest of the plaintiff.
44.In
Weitz V Minister of Safety and Security and other, Eastern Cape High
Court, Grahamstown (487/11) (2014) ZAECGHC 33 (22 May
2014.) the
Court:
“
[12]
Eve n when a warrant of arrest has been issued a peace officer has o
discretion as to whether or not to execute it. In
Minister
of Safety and Security V Sekhoto And Another
Harms DP held that ‘once the jurisdictional facts for on
arrest, whether in terms of any paragraph of s40(1) or in terms
of
s43, are present, a discretion arises' and that the peace officer is
not obliged to effect an arrest: And in
Dominga
V Minister of Safety and Security
Chetty J, in this Court, held that the trial court’s finding
that, once armed with a warrant; the arrest or was duty bound
to
arrest the plaintiff without further ado, was wrong and amounts to a
clear misdirection: The discretion to arrest or not obviously
must be
exercised properly.
[13]
In Sekhoto, Harms D. P stated, in summary, that the discretion must
be exercised in good faith, rationally and not arbitrarily.
Earlier
in the Judgment however, he had surveyed both South African and
Foreign decisions especially English cases,
and had found that the
discretion could be attacked an the basis of the grounds set out -
and followed consistently for over a
century - in
Shidiack V Union
Government
(Minister of the Interior) as well as on the further
basis irrationally.”
45.ln
this matter, the invalid warrant of arrest flows from the irrational
exercise of a discretion by Mazibuko. Unfortunately,
the prosecutor
was caught in this quagmire, which resulted in the magistrate
ultimately Issuing the warrant. Constable Mmutle in
turn executed the
warrant without perusing all the relevant documents, some of which
were not even contained in the docket- (and
of course she must have
struggled to receive same remotely from the Benoni Police Station.)
46.lt
seems to me that Mazibuko, when applying for the warrant of arrest he
did not consider anything else, but the fingerprint
result. He also
did not consider the statements contained in the docket Had he done
so, he would have come across the statements
of witnesses involved in
the robbery matter. In particularly, the statement of Botha, the
caretaker at no […]. Mazibuko
was at the scene where the
erstwhile accused were arrested.
47.Further,
Mazibuko conceded to an untruth in his statement where he confirmed
under oath that he visited the plaintiffs address,
whereas he did not
have the plaintiff’s address. In the event the warrant was
recommended by Mazibuko on unfounded reasons.
48.The
prosecutor who presented the application to the magistrate was inept
in that he failed to consider all the factors surrounding
the
issuance of the warrant.
49.The
magistrate who Issued the warrant did so without evaluating all the
evidence presented to him. It was his duty to ensure
that no stone
was left unturned before issuing the warrant.
50.Last,
but not least, Constable MMutle who executed the warrant of arrest on
27 January 2015, did so without exercising a proper
discretion. She
was duty bound to request Detective Nemulodi to forward all the
relevant documents to her, before executing the
warrant by arresting
the plaintiff.
51.ln
the circumstances the claim for unlawful arrest and detention must be
granted.
52.Regarding
quant um, the plaintiff was detained late in the afternoon of 27
January 2015 and released on the morning of 30 January
2015. It means
that he spent between two and three days in detention.
53.The
assessment of awards of general damages compared with awards made in
previous cases Is fraught with difficulty. The facts
of a particular
case need to be looked at as a whole and few cases are directly
incomparable. They are a useful guide to what other
courts have
considered to be appropriate, but they have no higher value than
that
Minister of Safety and Security V
Seymore
[2]
54.ln
my view, the only ordeal that the plaintiff suffered is that he was
arrested and detained without trial. Of course deprivation
of one’
liberty is by its nature damaging.
55.In
the circumstances, damages in the amount of R120 000 will suffice.
56.ln
as for as the costs in claim 1 are concerned, the costs will follow
the result. The plaintiff abandoned the second claim,
and as such it
must pay the costs of the defendant for the preparation of trial.
57.Consequently,
I make the following order:
57.1
The plaintiff's claim for unlawful arrest and detention is granted;
57.2
The defendant is ordered to pay the plaintiffs damages in the amount
of R120 000. 00
57 3
The defendant is ordered to pay costs in the first claim.
57.4
The plaintiff is ordered to pay the costs in the abandoned claim 2.
JUDGE T.J
RAULINGA
JUDGE OF THE
HIGH COURT
Appearance:
Plaintiff’s
Counsel
:Adv. C Zietsman
Plaintiff’s
Attorneys
:Loubser Van Der Walt INC
Defendant’s
Counsel
:Adv A Moja
Defendant’s
Attorney
:State
Attorneys
Date of
hearing
: 14 September 2020
Date of
judgment
: 22 January 2021
[1]
1986(2 ) SA 805 (A) at 814 D-E
[2]
2007 1 AII SA 558 (SCA) at page 17.