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[2021] ZAGPPHC 277
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Mashava and Others v Minister of Police (2558/2018, 3747/2018, 2556/2018, 2557/2018, 2555/2018, 2559/2018) [2021] ZAGPPHC 277 (30 April 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
number: 2558/2018
3747/2018
2556/2018
2557/2018
2555/2018
2559/2018
REPORTABLE:NO
OF
INTEREST TO OTHER JUDGES:NO
REVISED
DATE:
30/4/2021
In
the matter between:
PIET
LASSY
MASHAVA
FIRST PLAINTIFF
LINDIWE
GLADNESS MBALI NHLABATHI
SECOND PLAINTIFF
MOSHOMANE
PHILLADELPHIA NTABISENG
THIRD PLAINITFF
PHEMELO
ALPHEUS PHAKEDI
FOURTH PLAINTIFF
MAKGAHLELELE
THOKO NCHABELENG
FIFTH PLAINTIFF
CETHEKILE
SANAH MOKHONAZI
SIXTH PLAINTIFF
AND
THE
MINISTER OF
POLICE
DEFENDANT
JUDGMENT
TOLMAY
J:
INTRODUCTION
[1]
The six plaintiffs, all instituted action against the Minister of
Police, as respondent (the Minister), alleging that on 22 June 2017,
near Pretoria Central Police Station, Gauteng, they had been
unlawfully arrested and detained by the South African Police (SAPS).
Their claims were heard together after consolidation of their
actions. The actions of all the plaintiffs are based on the same
incident.
[2]
The parties agreed that
quantum
and merits should be separated
and the matter proceeded on the merits only.
[3]
The plaintiffs’ particulars of claim were carbon copies of each
other. They all alleged that on 22 June 2017, at or near Pretoria
Central Police Station, Gauteng, they were arrested by members
of the
South African Police (SAPS). They alleged that they were held in
detention and while in detention they were insulted by
a Captain
Henrico, who used racial slurs against them. They all alleged that
while they were detained, they were denied the right
to have family
members visit and were released the next day without any charge. They
furthermore alleged that their Constitutional
rights in terms of
section 10, 12, 18 and 24 of the Constitution of the Republic of
South Africa 108 of 1996 (the Constitution)
were infringed. It was
common cause between the parties that they were arrested without a
warrant of arrest.
[4]
As a result of the aforesaid the plaintiffs’ claimed damages
for
unlawful arrest and detention, general damages based on the
alleged racial slurs and damages based on emotional shock, trauma and
impairment of dignity.
[5]
It is worth mentioning that the general damages claims based on the
utterance
of racial slurs were described in the particulars of claims
as “general damages as a result of defamation of character,”
however no cause of action for defamation was made out on the
pleadings and this incident was presented as part of the unlawful
arrest.
[6]
Despite the defendant carrying the
onus
to prove that the
arrest was lawful, the plaintiffs’ proceeded to start leading
evidence.
COMMON
CAUSE FACTS
[7]
Before the commencement of the trial the parties agreed that the
following
facts were common cause:
a)
The arrests arose from an incident that occurred on 20 June 2017 when
the plaintiffs
who were police reservists and community forum
patrollers intercepted and sought to search the complainant, who was
later identified
as Dr Omotunde Owomo Fayon (the complainant);
b)
During the search of the complainant and his vehicle the plaintiffs
found in his car
tablets, money in foreign and local currency, files
relating to abortions and other medically related document;
c)
The complainant was taken to the police station where upon inquiries
with the Health
Professionals Council of South Africa (HPCSA)
confirmed that the complainant was a medical practitioner and was
assumed to be in
lawful possession of the goods found in his
possession;
d)
The complainant was then released without being charged;
e)
During the morning of the 21st of June 2017, the matter was assigned
to an investigating
officer who summoned the plaintiffs, Mr Thabo
Malebye and the complainant to his office. On this occasion the
complainant identified
who searched and brought him to the
certification office at the police station on 20 June 2017. He also
identified Mr Malebye as
the one who was in possession of the brown
bag that belonged to him and from which certain items were missing;
f)
The parties agreed that the plaintiffs and Mr Malebye went outside, a
dispute
however existed regarding at whose insistence they left the
room;
g)
When they returned Mr Malebye handed the investigating officer R3
000-00 which were
money taken from the complainant. The other items
were not returned, however Mr Malebye took some pills from his pocket
which belonged
to the complainant and handed them to the
investigating officer;
h)
The complainant insisted that he also wanted the other items,
including the US dollars
back. The investigating officer released the
plaintiffs with an instruction to return at 17:00 with the
outstanding items;
i)
On 22 June 2017 all the plaintiffs were called to the police station
and
arrested on charges arising from the incident. It was also common
cause that the arrest was without a warrant;
j)
The plaintiffs appeared before a magistrate at the Commercial Crimes
Court, Pretoria where the matter was postponed and they were released
from police custody on 23 June 2017;
k)
It was also common cause that the arrest was pursuant to a case of
theft opened
by the complainant under case no. 100/06/2017 at
Pretoria Central Police Station.
THE
DEFENCE
[8]
The defendant’s defence was based on
section 40(1)(b)
of the
Criminal Procedure Act 51 of 1977
, which in relevant part, reads as
follows: “
40
Arrest
by
peace
officer
without
warrant
(1)
A peace
officer
may without warrant arrest any person-
(a)
...;
(b)
whom he reasonably suspects of having committed an offence referred
to in Schedule 1, other than the offence of escaping from
lawful
custody;”
[9] In
the light of the aforesaid the Court had to determine whether the
arrests of the plaintiffs were lawful.
THE
EVIDENCE
[10]
The sixth plaintiff (Ms Mokhonazi) was the first to testify. She
testified that on
20 June 2017 she was on patrol with Mr Malebye, Ms
Mashomane, and Mr Phakedi. They were in Schoeman Street going towards
Van Der
Walt Street, when they were called to assist by colleagues on
the opposite side of the road, as they were having difficulty with
a
person who was apparently refusing to be searched. Only one of the
people in the other group, who would later turn out to be
the first
plaintiff’s (Mr Mashava) group, was wearing a uniform. The rest
of his team were wearing reflector jackets over
their normal clothes.
Mr Mashava was a police reservist and the rest of his team were
community patrollers. Ms Mokhonazi and Mr
Malebye were police
reservists and were wearing police uniforms. Ms Nchabeleng and Mr
Phakedi were community patrollers wearing
reflector jackets only. Ms
Mokhonazi’s team went to assist. It transpired that the man,
who later became the complainant,
was not co-operating as he
mistrusted Mr Mashava’s group, because only one of them wore a
police uniform. He was apparently
satisfied with the legitimacy of
the search when Ms Mokhonazi’s group joined. Mr Mashava
searched the complainant, but did
not find anything, they then
requested to search his vehicle. Mr Malebye searched the boot, where
he found boxes with files, relating
to abortions . There was also a
brown bag in the boot of the car, Mr Malebye took the brown bag and
put it over his shoulder. Ms
Mokhonazi testified that the complainant
told them that he was a medical doctor, they were however concerned
that he could be a
“fake” doctor, due to the files in the
boot that related to abortions. They requested him to accompany them
to the
police station so that they could verify whether he was indeed
a medical practitioner.
[11]
She testified that she, Ms Moshomane, Ms Nchabeleng and Ms Nhlabathi
and Mr Phakedi walked back to the police station, while the
complainant, Mr Malebye, Mr Mashava and Mr Nchabeleng drove to the
police station with the complainant’s vehicle. When they
arrived at the police station the complainant was still in the
vehicle,
refusing to get out. After she talked to him, he agreed to
accompany them into the police station.
[12]
They all went to the certification office. She phoned Captain Mataung
(at that stage he was still a Constable) to come and assist in
verifying whether the complainant was indeed a medical doctor. He
came immediately and took the complainant’s identity document
and HPCS card. He left and very shortly after that returned
and
confirmed that the complainant was indeed a medical practitioner.
[13]
Ms Mokhonazi testified that while they were in the office, waiting
for
Captain Mataung to return, the complainant asked where Mr Malebye
was with his bag. She phoned Mr Malebye, who told her that he
was in
the bathroom. He then came to the office with the bag. Mr Mashava
then wrote in his pocket book and asked whether the complainant
had
checked his possessions. The complainant however said he trusted the
police and signed without checking the contents of the
bag.
[14]
She further testified that she walked with him to his car. He told
her he was
not feeling well and gave her R20 and requested her to go
and buy him a Coke, which she did. After drinking the Coke, he felt
better
and they parted ways.
[15]
The following day she was called by Captain Mataung, who told her
that
she and the people who were with her on duty the previous day
should come to his office. When they arrived there, he was not in.
She called him to find out where he was, he told her that he was at
court and that they should stay in the vicinity, and he would
call
them when he was back from court. When he returned, he called and
they went to his office. He phoned the complainant, who
told him that
he was busy, but would be there at 13:00. They left and Captain
Mataung phoned her when the complainant arrived,
she phoned the
others to inform them. Apparently everyone except Mr Malebye arrived
at the same time. When Mr Malebye arrived he
greeted the complainant,
but he ignored Mr Malebye. Captain Mataung then told them the
complainant opened a case as his phone,
watch, some tablets and some
cash, including US dollars were missing from his bag.
[16]
Ms Mokhonazi then told Captain Mataung that she did not see the items
mentioned, but Mr
Malebye was in possession of the complainant’s
brown bag. An argument then started between Mr Malebye and the rest
of the
group. Captain Mataung, according to her, then told them to go
outside and sort the issue out between themselves. When they were
outside the argument continued. Ms Moshomane grabbed Mr Malebye by
the collar and told him to please give back the complainant’s
property. They told him that they did not want to get into trouble
because of what he did. Mr Malebye then produced R3 000-00.
They
entered the office and Mr Malebye threw the money on the table. The
complainant refused to take it and insisted that the other
items
should also be returned. Mr Malebye initially said that the Viagra
tablets, which were part of the missing items, were in
the office
where they worked, but then proceeded to unzip his jacket and
returned some of the tablets. He apologized and said that
he had
already used one of the tablets. The rest of them then requested to
leave, Captain Mataung, Mr Malebye and the complainant
remained in
the office. Before leaving Captain Mataung requested them to stay in
the vicinity.
[17]
Later Mr Mashava went to the police station and informed the
commander about the incident.
When the complainant left they were
still there. She said they later returned to Captain Mataung's office
and asked why he did
not inform their commander, but Captain Mataung
said that he was not yet arresting them, but was merely talking to
them. This time
Mr Malebye was not present. They were only allowed to
go home after 19:00.
[18]
On 22 June 2017 Ms Mokhonazi was again called by Captain Mataung, he
said that she must
come to the police station and the others must
also come as they were all going to be arrested. She was very upset,
she prepared
herself and phoned her husband to take her to the police
station. She called the others and told them that they should go to
the
police station. When she got there she called Captain Mataung.
When they arrived Captain Mataung phoned the complainant and told
him
that he was going to arrest them. He put the complainant on
loudspeaker. According to her the complainant then said “
you
cannot arrest those people. You must arrest Thabu”
(Mr
Malebye). The complainant then said he could not come as he was busy
in Johannesburg. Captain Mataung said he was going to write
down the
arrest statements. He asked that they be taken to the cells. He later
arrived at the cells and verified their personal
particulars. When
they arrived Mr Malebye and Mr Mashava were already in the cells. The
SAP 14 was completed and they were detained.
[19]
A Colonel Tumiso called out the names and in which cell each person
was
and at 15:00 said that they had some visitors, the cells were
opened and she said they “
went down.”
When they
arrived they were not allowed to speak to their visitors, who were
apparently chased away. They were taken back to the
cells. Later the
Commander called the eight of them and they were moved to the waiting
cells. The Commander said they found Mr
Malebye and asked him why he
“
did such
a
thing” ,
Mr Malebye apologized.
Mr Malebye then apparently offered to pay everyone’s bail. She
said she refused. She was very upset
as she had a baby which she had
to breastfeed. Mr Malebye continued to ask for forgiveness, until the
Commander left. Later during
the night Captain Mataung came to charge
them and take their statements.
[20]
On 23 June 2017 they appeared in the Magistrate’s Court, in the
holding
cells were four women, herself, Ms Moshomane, Ms Nhlabathi
and Ms Nchabeleng. At this point a Captain Henrico came to the cell,
a warrant officer opened the door for him. Captain Henrico had a
document in his possession, he called Ms Mokhonazi who at this
point
was seated on the floor. She stood up, he then according to her said
“
come here you kaffir and sign” .
She shouted at
him that he could not call her that. He also told her that she should
bring her uniform when she got out of there.
After she refused to
sign he left. Shortly afterwards he entered the cell with another
Captain, who asked her whether it was true
that she would not sign.
After she again refused, they left the cell.
[21]
They then waited to appear in court, after a while they were taken to
the Commercial Crimes Court. The men and women were separated. A male
prosecutor arrived with the docket. He asked who the suspects
were.
They said all eight of them. He shook his head and went away. Their
lawyer then arrived. They re-appeared in court, bail
was set at
R500-00 and they were then released on bail. They returned to court
and at this point a female prosecutor told them
she did not
understand the case against them. Another date for appearance was set
on which date the charges against them were withdrawn.
[22]
She denied that she was ever requested to become a state witness in
terms
of
section 204
of the
Criminal Procedure Act
(CPA) and that the
charges against her were withdrawn for that reason, and said that she
was never requested to come and testify
against Mr Malebye.
[23]
She was referred to a statement, that she admitted she signed on 2
June
2017, but stated that the statement was wrong in so far as it
recorded that it stated that they requested Captain Mataung to go
out
of the office, during the interview with the complainant, and
insisted that he requested them to go outside.
[24]
During cross-examination Ms Mokhonzai was referred to her particulars
of claim, where in paragraph 5.4 it was stated that the day after 22
June 2017, she was released without any charge. She could
not give
any satisfactory explanation for this allegation, that was clearly
incorrect. It must be noted that the same allegation
appeared in all
the particulars of claim and contradicted the evidence of all the
plaintiffs. This inconsistency with the evidence
was also not
clarified by the legal representative for the plaintiffs.
[25]
She insisted during cross-examination that she and her group merely
provided backup for
Mr Mashava’s group. In this context it is
important to note that Mr Malebye, who was part of her group searched
the boot
of the complainant’s car. She was reluctant to admit
that she was the leader of her group, but her actions clearly
indicated
that she and Mr Malebye were police reservists and she was
the one who persuaded the complainant, on her own evidence, to
co-operate.
Evidence of the other plaintiffs also contradicted her
evidence as she was clearly regarded by them to have been the leader
of
her group.
[26]
She was also the one who persuaded the complainant to get out of the
car at the police station. She called Captain Mataung to verify his
credentials and she comforted the complainant after the incident,
when he was traumatised with what had happened. There is no doubt
that Ms Mokhonazi was an important and central figure during
the
incident, during which the complainant was apprehended. Her
insistence that her group merely provided back-up and did not form
part of the whole process is not probable in the light of her own
evidence.
[27]
Ms Mokhonazi was also, during cross-examination, referred to a second
statement she made on 17 August 2017, this statement corroborated her
earlier statement, and also referred to the fact that the
group
requested to go out and discuss the matter, this statement she also
signed, but testified that everything, but that paragraph,
was
correct. It was put to her that this statement was made, when the
agreement was reached that she would become a state witness
in terms
of
section 204
of the CPA and the charges were withdrawn against her.
[28]
She tried to explain her alleged signing of the statements, without
reading
it, by claiming that she was not aware of the implications
thereof, which is hard to believe in the light of the fact that she
had been a police reservist since about 2007. She admitted writing
statements, but tried to convince the court that she only wrote
what
witnesses told her, and in all these years she said she never took a
statement of a suspect, which seems improbable.
[29]
It was put to her that the charges were withdrawn on 18 August 2017.
She said she could not remember, seeing that the second statement was
signed on 17 August 2018, the probabilities favour the version
that
she was converted from a suspect to a
section 204
witness.
[30]
It was also put to her that the complainant opened a case against the
whole group. She first answered yes, but then later on denied it and
reiterated that only Mr Malebye was pointed out as a culprit
by the
complainant.
[31]
Under cross-examination she stated that she opened a criminal case
against
Captain Henrico on 12 July 2017.
[32]
The fourth plaintiff (Mr Phakedi) who was a community patroller
testified
next. He confirmed the incident of 20 June 2017 and how it
came about that they joined the other group when they apprehended the
complainant. He confirmed that Ms Mokhonazi introduced them and
explained their duties to the complainant. He specifically testified
that Ms Mokhonazi, after doing that, instructed Mr Mashava to search
the complainant. He was unaware of what motivated the group
led by Mr
Mashava to want to search the complainant. He also confirmed that Mr
Malebye searched the boot of the car and confirmed
that files were
found relating to abortions. He also testified that a brown bag and
black bag were also found in the boot and that
Mr Malebye took
possession of it. He testified that the complainant, Mr Malebye, Mr
Mashava and Ms Moshomane got into the complainant’s
car and
drove to the police station. The rest of them walked there.
[33]
He confirmed that when they got to the police station they found the
complainant still in his car, refusing to get out. He was only
willing to get out once Ms Mokhonazi arrived. He said that Ms
Mokhonazi
treated the complainant well, where Mr Malebye was harsh
towards him. He confirmed the interaction between Ms Mokhonazi and
Captain
Mataung and how the complainant's identity was verified. He
also confirmed Mr Malebye’s absence initially, whilst he was in
possession of the brown bag. According to his evidence it seems that
Mr Malebye only returned when Captain Mataung returned to
confirm the
fact that the complainant was indeed a medical practitioner. At this
point Mr Malebye apparently put the brown bag
on the table. After
Captain Mataung left, Mr Mashava requested the complainant to sign
his pocket book. The complainant was released
and according to him
the two groups went back to their patrol duties.
[34]
The following morning 21 June 2017 he got a call from Ms Mokhonazi
who informed
him that Captain Mataung wanted to see them, and that
they should meet at his office. He confirmed the evidence regarding
Captain
Mataung’s initial absence and the evidence regarding
the conference with Captain Mataung and the complainant and that they
were informed that the complainant opened a case. He said that Mr
Malebye was initially not there. When Mr Malebye arrived, the
complainant pointed at Mr Malebye and said that he was the one who
took his property, and the complainant refused to greet him.
Captain
Mataung said that a case was opened. Captain Mataung, according to Mr
Phakedi, told Mr Malebye to bring the items back
as the complainant
would withdraw the case if he got his property back. Ms Mokhonazi, Ms
Nchabeleng and Ms Moshomane then started
shouting at Mr Malebye and
said that they were not going to be arrested because of something
that he did. Due to the noise Captain
Mataung requested them to go
out of the office and discuss the situation amongst themselves. The
argument continued outside Captain
Mataung’s office. Mr Malebye
denied having taken the items and he was grabbed by the collar, Mr
Malebye then admitted that
he had the money and they went back into
the office, he wanted to give the money back, but the complainant
insisted that he wanted
his watch, tablets and US dollars. Mr Malebye
then produced the Viagra tablets, but said that he had already used
one. Mr Malebye
denied having seen the other missing items.
[35]
After this meeting Captain Mataung said that they could leave but
should not
go far and he would phone them. Captain Mataung, the
complainant and Mr Malebye remained in the office.
[36]
He waited outside, but when it became late he decided to go to the
charge office,
where he met with his commander and asked to be
released to go home, by this time it was already after 23:00.
[37]
During the morning of 22 June 2017, Ms Mokhonazi informed him that
Captain
Mataung wanted to see them. It was after lunch that Captain
Mataung met them at his office and told them to go down to the charge
office. He told them that Mr Malebye had already been arrested. He
found Mr Malebye and Mr Mashava in the cells. Captain Mataung
indicated that he was going to arrest all of them. They wanted to
know why they were being arrested, but Captain Mataung did not
reply.
They were processed and put in a cell. Captain Mataung went to take
statements from the women in the group. He did not make
a statement.
Later the ladies were also brought to the cell and their
constitutional rights were given to them. The men were then
taken to
a cell upstairs. When it was visiting time they were not allowed to
receive visitors. While in the cell their fingerprints
were taken. Mr
Malebye asked whether they had a lawyer. Mr Phakedi was angry and
said no, Mr Malebye in response to this said he
would make a plan and
offered to pay the bail on his behalf.
[38]
The following day they were taken to court and they were charged with
common
robbery and extortion. He confirmed that they were transferred
from the Magistrate’s Court to the Commercial Crimes Court.
Before their appearance their lawyer arrived and told them the case
was complicated and the prosecutor did not want to take the
case.
They were granted bail and the case was remanded. When they appeared
again the charge of robbery was changed to theft. They
were given
another date for appearance and on that date the case was withdrawn.
[39]
Under cross-examination he said that Ms Mokhonazi was the leader of
their
group. He confirmed that members of the group searched the
complainant. He confirmed that nothing was found when the complainant
was searched and that files were found in the boot. He said that Ms
Mokhonazi, Ms Nhlabathi and himself walked to the police station,
the
others drove there in the complainant's car.
[40]
He verified that all eight of them went to the office. He confirmed
most of
what Ms Mokhonazi said about what happened at the
verification office, but contrary to what Ms Mokhonazi said about the
complainant
leaving, he said that the complainant hurriedly left and
said that they wasted his time. He also said that the complainant was
all right when he left and not distressed as was testified by Ms
Mokhonazi. After Ms Mokhonazi’s version about the complainant's
departure was put to him, he tried to adapt his version and said that
she left with the complainant and he only saw her when she
came back,
after she bought the cold drink. How he knew about the cold drink is
unclear, since this happened, according to Ms Mokhonaz,i
when the
complainant was already in his car and on Mr Phakedi’s own
version he was not with them.
[41]
He testified that he could not remember whether the boxes with the
files
were in the certification room with them or not. It was put to
him, that they split the complainant’s money, which was taken
from him between them and part of it was returned to the complainant.
Mr Phakedi denied this. It must be noted that this was never
put to
Ms Mokhonazi.
[42]
He confirmed the evidence of Ms Mokhonazi regarding the events of the
following day, in most respects. He changed his version regarding the
charge under cross-examination, initially he said that they
were
informed that a case was opened against them and later he said that
Captain Mataung did not specifically say that a case was
opened
against all of them. At this point he also said that he did not know
whether they were at Captain Mataung’s office
in relation to
this case. Given the circumstances it is highly unlikely that he did
not know why they were there. He conceded that
there was no other
reason for them to be there.
[43]
It was put to him that when they were outside Captain Mataung’s
office they
raised R250-00 each to give back to the complainant. This
was also not put to Ms Mokhonazi. Mr Phakedi also denied that the
case
was withdrawn against him, because the state wanted to use him
in terms of
section 204
of the CPA as a witness against Mr Malebye.
[44]
The fifth plaintiff (Ms Nchabeleng) was the next witness. She was a
community patroller and on
22 June 2017 she was patrolling the city
centre and formed part of Mr Mashava’s group.
[45]
While on patrol they saw a man putting a box in his car’s boot.
Mr Mashava suspected
that there was something suspicious about the
man’s actions and they approached him. Mr Mashava was in
uniform, but the rest
of the group were in plain clothes and wore
reflector jackets. Mr Mashava introduced himself and asked whether he
could search
the man. The man however said that he did not trust them
as only one of them were in uniform. They then called Ms Mokhonazi’s
group, they were at that point on the opposite side of the street.
They requested them to come and assist them. She confirmed that
there
were two people in uniform in the other group. They came over and Ms
Mokhonazi introduced them to the man. He then agreed
to be searched.
[46]
Ms Nchabeleng confirmed the other witnesses’
evidence relating to the search of the complainant and his
vehicle as
well as Mr Malebye’s taking possession of the complainant’s
brown bag, their suspicion about the complainant
being a “
fake”
medical practitioner and the decision to go and verify the
information at the police station.
[47]
She testified that the complainant was
trembling so much that Mr Mashava asked whether he should
rather not
drive the complainant’s vehicle. The people in the
complainant’s car, according to her, was the complainant,
Mr
Mashava, Mr Malebye and herself. She testified that when they arrived
at the police station the complainant did not want to
get out of the
car, but when the others arrived, he alighted from the vehicle
without being requested. This contradicted Ms Mokhonazi’s
version that she was the one who persuaded the complainant to get out
of the car. She confirmed the evidence of the others regarding
the
verification of the identity of the complainant. She also confirmed
the evidence of Ms Mokhonazi regarding the pocket book
and the
complainant not checking the contents of his brown bag. She merely
mentioned during evidence in chief that the complainant
left, but
said nothing about with whom he and in what emotional state he left.
[48]
She said that Ms Mokhonazi phoned her the next day and told her that
Captain
Mataung wanted to see them. She confirmed the evidence of the
other witnesses about the incidents leading up to the meeting in
Captain Mataung’s office. She said the complainant told Mr
Malebye that he was the one that was in possession of the brown
bag.
She confirmed the altercation outside the office. She also said
Captain Mataung ordered them to go out of the office and discuss
the
matter. She confirmed that Mr Malebye placed the money on the table,
but that the complainant was angry and said he wanted
the other
items also to be given back. She confirmed the evidence of the others
about the tablets. She said they told Mr Malebye
to bring the other
items back. She also confirmed that they left and the complainant, Mr
Malebye and Captain Mataung remained in
the office. Later, after
Captain Mataung phoned, they left.
[49]
She confirmed that the following day they were summoned back to the
police
station and were told that they were going to be arrested. At
about noon they met at Captain Mataung’s office where he told
them that they were under arrest and sent them to the cells where
they were processed and their constitutional rights were given
to
them.
[50]
She said that the following day they were first taken to the
Magistrate’s
Court and from there to the Commercial Crimes
court. They appeared and were granted R500 bail and the matter was
remanded to a
later date, when the charge was changed from common
robbery and extortion to theft and extortion. In due course and after
further
appearances the charges against the plaintiffs were
withdrawn, but not the charges against Mr Malebye.
[51]
When prompted by counsel, asking her if anything happened in the
cells, she said that while
they were in the cells a white male came
to the cells. She said she did not know who this white male was, but
he had a file in
his possession, and he was looking for Ms Mokhonazi
as he called out her name. He then made the racial slur, previously
referred
to. She said that they then shouted at him. He left and came
back with another male person. This man, who was black, was
apparently
“cool and ok” and merely asked Ms Mokhonazi if
she indeed was refusing to sign.
[52]
She also denied that the charges were withdrawn against her, because
she agreed to become a state witness in terms of
section 204
of the
CPA.
[53]
During cross-examination she admitted that they all agreed to go to
the police
station after the complainant and his car was searched, as
they worked as a team.
[54]
She said she could not remember who brought the boxes with files to
the office
and that Mr Malebye was initially not with them in the
office. They only realised it when the complainant asked where his
brown
bag was. She also said that the complainant was not detained
more than 20 minutes. It was put to her that the defendant’s
witness would say that the complainant was kept at the office for
four hours, this was however not put to the previous two witnesses.
[55]
She said that she was present when the complainant left and he was
happy
at the time. This contradicted Ms Mokhonazi’s evidence
about the complainant’s mental state when he left. She did not
see the complainant to his car, she only saw him leaving the office.
She also said he left with Ms Mokhonazi, Ms Moshomane and
Ms
Nchabeleng. Ms Mokhonazi in her evidence said nothing about the other
two women being present. She testified that her group,
that is Mr
Mashava’s group went back on the street, I infer to continue
with their patrolling duties.
[56]
She was also asked whether the complainant was requested to empty his
pockets and that they divided a portion of the money amongst them.
She denied it, and as already stated this was never put to Ms
Mokhonazi.
[57]
She admitted that they were informed that a criminal complaint was
laid
by the complainant against all of them. It was put to her that
they were told to go and look for the items and were to return it.
She denied it. According to her they were arrested in Captain
Mataung’s office where their rights were read out, and then
they were taken to the cells. She could not remember whether she made
a statement.
[58]
She said all of the people in the cell shouted at the man who made
the
racial slurs. Her explanation of why they did not tell the
captain who returned with the white male about the racial slurs was
that he only asked why Ms Mokhonazi refused to sign.
[59]
Ms Nthabiseng testified that she was in Mr Mashava’s group on
20 June 2017. She confirmed
the evidence regarding the incident that
occurred while they were on patrol. According to her she was one of
those who walked to
the police station. She confirmed that the
complainant only got out of his car when they arrived. She confirmed
the series of events
leading up to the identification of the
complainant as a medical practitioner and once that was done, that he
signed Mr Mashava’s
pocket book without checking the contents
of his bag. She said that she and Ms Mokhonazi left with the
complainant and the complainant
gave Ms Mokhonazi money to buy him a
cold drink and asked him whether he was ok and left. They then had
lunch.
[60]
She was called by Ms Mokhonazi on 21 June 2017 and told that Captain
Mataung wanted to see them. She confirmed the other witnesses’
evidence relating to the events leading up to the meeting in
Captain
Mataung’s office. She also confirmed that Mr Malebye arrived
after the others and that the complainant refused to
greet him. She
also confirmed the evidence relating to the missing items and that
the complainant pointed Mr Malebye out as the
person who must have
taken the items since he was in possession of the brown bag. She also
confirmed the argument that ensued,
and that Captain Mataung asked
them to go out and discuss it amongst themselves. She said that when
they were outside she grabbed
Mr Malebye by the collar and confronted
him about taking the items of the complainant, and he then took out
the money and put it
on the table. She confirmed the version about
him producing the tablets and the complainant wanting the rest of the
property back.
[61]
Later during the day Captain Mataung phoned and said Mr Malebye was
nowhere
to be found. He later met them at the charge office and
informed them that Mr Malebye was in Hammanskraal. They all then went
home.
[62]
The following day Ms Mokhonazi phoned her and told her they had to go
to the police station as they were going to be arrested. She
confirmed the arrest and the processing at the cells. Captain Mataung
later came to the cell and took statements from her and Ms Mokhonazi.
All of them asked Mr Malebye why he did such a thing where
after he
apologised, asked their forgiveness and offered to pay their bail.
They were then taken back to the cells.
[63]
She confirmed that the next morning they were taken to the
Magistrate’s Court and
were informed that the charges were
common robbery and extortion. While in the holding cells Captain
Henrico came by, he stood
at the door and called Ms Mokhonazi’s
name, four of them were in the cell. Ms Mokhonazi stood up when her
name was called.
Captain Henrico had documents with him and he
uttered the racial slur previously referred to against Ms Mokhonazi.
All of them
then started shouting, Ms Mokhonazi refused to sign the
documents and he left. He then came back with Captain Malala who
asked
Ms Mokhonazi whether she confirmed that she refused to sign,
which she did, they then left.
[64]
She confirmed the evidence regarding their appearance at court and
later
the withdrawal of the charges. She also denied ever agreeing to
become as state witness in terms of
section 204
of the CPA.
[65]
She denied that she was in the car contrary to what Ms Mokhonazi and
the others testified. She denied that the complainant was ever
handcuffed.
[66]
She could also not remember whether the boxes were brought to the
office.
It was put to her that the doctor took R7 500.00 out of his
pocket. She said that she did not see it. During cross-examination
she denied that Captain Mataung told them that the complainant laid a
complaint against all of them and said that a case was opened
against
Mr Malebye. She could not explain why they got so agitated if, her
version was true, that they were told that a case was
opened against
Mr Malebye only. She denied that all of them were being given time to
return the complainant’s property. She
said they left later
than usual, because Captain Mataung asked them to stay in the
vicinity. She said that they were arrested by
about noon.
[67]
Under cross-examination, when confronted with her statement, she
denied
that certain aspects of it was correct. This included the part
that states that Mr Malebye handcuffed the complainant and removed
it
when they got in the car. She also denied that, contrary to what was
stated in her statement, that Captain Mataung sent them
out of the
office to discuss the issue amongst themselves. This statement was
made on 17 August 2017, a day before the charges
were withdrawn. In
the statement she also said, contrary to what she testified, that she
was one of the people who drove with the
complainant in his car to
the police station. She also denied that the complainant laid a
complaint against all of them.
[68]
The second plaintiff, (Ms Nthlabathi) was the next witness. She
confirmed
what the other witnesses testified, but contradicted them
in some aspects. She was in Mr Mashava’s group on the day in
question.
She could not remember who was in the car on the way to the
police station, but testified that she was in the group who walked
there. She said that when the complainant left, Ms Mokhonazi came to
her and they had lunch whilst waiting for the parade. She confirmed
the incident in Captain Mataung’s office.
[69]
The day after the meeting she was summoned to the police station. She
met Captain Mataung at the charge office and he told her to go to the
cells, where she was given her constitutional rights and
processed.
She found the rest of the group was already there. She confirmed they
were charged with common robbery and extortion.
She also confirmed
that Mr Malebye apologised and offered to pay their bail. She was
very concerned as her child was alone at home
with no one to take
care of him.
[70]
They were taken to the female cells where they spent the night. While
in the holding cells Captain Henrico entered the cell. Contrary to Ms
Mokhonazi’s evidence, that he only talked to her, she
said that
he also addressed her and told her to bring her uniform back to him.
If I understood her evidence correctly, while in
the holding cells
the cells were opened and a person called her. She walked with her
lawyer to the office where they found Captain
Henrico and two other
officers. Captain Henrico told her to sign something, but apparently
her lawyer said she should not sign.
Her lawyer took the papers with
him and she then went back to the cells.
[71]
She confirmed the evidence regarding the initial change of the charge
and later the withdrawal of charges and denied that she ever agreed
to become a state witness.
[72]
Under cross-examination she denied ever having seen the complainant
being
handcuffed, contrary to what she earlier testified. She could
also not remember who brought the boxes of files into the office.
She
denied that she saw the complainant taking money from his pocket or
that it was divided between them. In cross-examination
she said that
Captain Mataung did not mention against whom the case was opened.
[73]
During cross-examination she said she did not know Captain Henrico
before
this incident occurred. She had been a reservist since 2010 at
Pretoria Central Police Station and Captain Henrico had been working
there with police reservists. It was put to her that it was highly
unlikely that she would not know her Captain, especially as
his
office was not far from hers. Her evidence also contradicted Ms
Mokhonazi’s version that Captain Henrico spoke only to
her
which evidence was confirmed by Ms Mashobane and Ms Nchabeleng.
[74]
The last witness for the Plaintiffs was the first plaintiff, Mr
Mashava,
he was a police reservist and in uniform on the day in
question. He confirmed the evidence of the others regarding the
incident
of 20 June 2017. He testified that he noticed the
complainant putting a box quickly in his boot and that action seemed
suspicious
to him and that resulted in what followed. He confirmed
that the complainant was suspicious as only one person in his group
was
in uniform. He confirmed the search that followed and Mr Malebye
taking possession of the brown bag.
[75]
He confirmed that they went to the police station. According to him
the complainant
was shivering, one can only infer from fear, so much
so that he agreed that Mr Mashava should drive his car. According to
him Mr
Malebye, Ms Nchabeleng, himself and the complainant was in the
car. He said the complainant was sitting in the back of the car next
to Mr Malebye. He heard the click of handcuffs. He looked and saw
that Mr Malebye had handcuffed the complainant who was not under
arrest. Mr Malebye then removed the handcuffs.
[76]
He confirmed the circumstances surrounding the arrival at the police
station and the verification of the complainant’s credentials.
He then requested the complainant to check his belongings and
to sign
his pocket book. The complainant did not check the contents, but
signed, after that he left. He did not know who went out
with the
complainant, and who took the boxes to the car. He then went on
patrol and later went off duty.
[77]
The following day he was called by Ms Mokhonazi, who told him that
Captain
Mataung wanted to see them. He confirmed the version of the
other witnesses regarding how they met with Captain Mataung and the
complainant in the office of Captain Mataung. He confirmed that Mr
Malebye was initially not present and that the complainant refused
to
greet him, when he arrived. He confirmed that an argument ensued
about the missing items and that Captain Mataung sent them
out of the
office to discuss it. He also confirmed that when they returned Mr
Malebye put R3 000 on the table, and that the complainant
requested
the return of the other items too and that Mr Malebye produced the
tablets. Captain Mataung then said they must go and
fetch the other
items, and they must remain in the vicinity. When it was already
dark, Captain Mataung called them to the charge
office and told them
Mr Malebye was nowhere to be found.
[78]
The following day at the police station Captain Mataung called and
asked
where he was, when he got there he looked for Captain Mataung.
When he finally found him, he was told to accompany him to the cells.
He was charged and was given his constitutional rights to sign. He
was taken to the cells where he had to remove his shoelaces
and belt.
Mr Malebye was there. Captain Henrico came and wanted his persal
number and home address. He was aware that he was charged
with common
robbery and extortion. They were taken to a cell upstairs where they
were detained. Mr Malebye said he should not make
a statement and
said he would pay the bail money. He called someone after which his
phone was taken. They sat there for a long
time. At a point he heard
Ms Mokhonazi. When it was visiting time, they were not allowed to
receive visitors. Captain Mataung come
to the cell and said his
brother had confirmed his address.
[79]
The following day they were taken to the Magistrate’s Court and
later the Commercial Crimes Court. While they were in the cells the
women and men were separated. Someone called him and said someone
was
looking for him, it was Captain Henrico, who had certain documents
with him, who apparently came to confirm his personal information.
They were granted bail and the case was remanded and later withdrawn.
He denied that Mr Moshomane was in the car, which contradicted
her
evidence.
[80]
He said he did not know who brought the boxes to the office. The
entry
in his pocket book indicated that the complainant was happy
when he left and confirmed that nothing was taken from him. The
evidence
about the complainant’s state of mind when he left,
contradicted that of Mr Mokhonazi regarding the complainant’s
state
of mind.
[81]
That concluded the evidence of the plaintiffs.
[82]
Mr Malebye then testified on behalf of the Minister. He confirmed the
evidence regarding the patrol. He was part of Ms Mokhonazi’s
group who was called to assist Mr Mashava’s group when
they
apprehended the complainant.
[83]
He however said that Mr Mashava was holding the complainant by the
collar
when he called him over. According to him Ms Mokhonazi told
him to handcuff the complainant, but then said he should take it off.
This was never put to Ms Mokhonazi. He confirmed that he searched the
boot and found boxed with files. In the brown bag which was
also in
the boot there were an identity document, a drivers licence and keys.
[84]
He said he searched the complainant himself and found a lot of money
in R100 notes on him. They suspected him of being a “fake”
doctor due to the files relating to abortions and decided
to go back
to the police station to verify his credentials. According to him the
following people were in the car, himself, the
complainant, and Ms
Nchabeleng were sitting in the back, with the complainant occupying
the middle seat. Mr Mashava and Ms Moshomane
occupied the front
seats. When they arrived at the police station, he suggested that
they took the boxes with the files to the
office, and carried it to
the office. Ms Mokhonazi took out the complainant's identity document
and HPCSA card. He confirmed that
the complainant’s identity
was verified. He said nothing about him being with the brown bag in
the bathroom, as the plaintiffs
testified. The process of identifying
the complainant’s credentials took about 30 minutes and Captain
Mataung said they could
let him go.
[85]
At that stage the boxes and the brown bag were on the table. Ms
Mokhanazi
said that she thought he was doing illegal abortions and
phoned one of the people whose name appeared on a file. This was
never
put to Ms Mokhonazi. The complainant said they should not phone
the patients as the information in the files are confidential. He
said he had no money for a lawyer but had money for cool drink for
the police. The complainant took out R7 500-00 and Mr Malebye
said
that that Ms Mokhonazi then asked how much money was for the “cold
drink” and they took R4 000-00 and gave the
rest back to the
complainant. According to him Ms Nchabeleng took R1 000-00 and the
rest took R250-00 each. This evidence was not
put to the other
witnesses.
[86]
The evidence regarding how the money was divided and who actually got
what, was unclear and did not make sense. According to Mr Malebye the
complainant gave him the Viagra tablets. He testified that
the
complainant was angry about the money being divided. According to Mr
Malebye they spent approximately three hours with the
complainant. He
did not witness the signing of the pocket book, as he and Mr Phakedi
left to continue with their duties.
[87]
He also testified that when they initially arrived at the
certification
office, he and Mr Mashava carried the boxes from the
car to the office.
[88]
The next day, 21 June 2017, he was called by Ms Mokhonazi who told
him
the complainant had opened a case against them. He confirmed the
evidence of the others, regarding how they came to be in Captain
Mataung’s office and how they all finally met with him and the
complainant.
[89]
He testified that Captain Mataung told them that the complainant
opened
a case against all of them. He said that Captain Mataung,
during the meeting with the complainant, told them to go out and
discuss
the complainant’s allegations amongst themselves. He
said that as the division of the money was not equal, those who got
R250- 00, each gave that amount and the others produced R2 000-00.
They gave the money to him and when they got back he put it on
the
table, but the complainant was not satisfied as he wanted his other
items back, including the tablets. Mr Malebye pointed out
that the
complainant gave him the tablets, he gave two back and said that he
had already used the one. Captain Mataung told the
others to leave
and told them they had until 17:00 to return the complainant’s
property. He remained behind with Captain
Mataung and the
complainant. Mr Malebye did not explain why he remained behind with
Captain Mataung and the complainant. He was
also told to return at
17:00. All of them returned to the office at 17:00, but did not
return any of the other missing items. They
then returned home.
[90]
The next day he went to the office of Lt Colonel Phiri, who made a
statement.
In this statement Lt Colonel Phiri said that he was called
by Mr Malebye on 21 June 2016 at 07:30, who requested a meeting with
him, as he was the acting branch commander. On his arrival Mr Malebye
told Lt Colonel Phiri that Captain Mataung wanted to arrest
him for
common robbery. He mentioned the names of the people who were on
patrol. He said that he was called as back-up after the
complainant
was arrested. After this Captain Mataung called him to come to his
office where he was arrested and detained. He found
the others in the
cells and they asked him why he gave their names to Lt Colonel Phiri
and threatened to put the blame on him.
They were charged and taken
to Court the following day, and later to the Commercial Crimes Court.
The matter was remanded and they
were all granted R500-00 bail. At
the following appearance the case was withdrawn against the others.
He however stood trial and
was eventually acquitted.
[91]
Under cross-examination he denied that when Ms Mashava searched the
complainant after
they apprehended him, that nothing was found. He
said that the complainant had money in his pockets. He insisted that
during the
search of the car and the subsequent actions they acted as
a group. According to him there was only an identity document,
passport,
HPSCA card, bank cards and tablets in the brown bag. He
confirmed that he had the brown bag in his possession, until it was
put
on the table at the certification office.
[92]
It was only during the meeting in Captain Mataung’s office that
the other items that were allegedly missing from the brown bag were
mentioned. They said they only took R4 000-00 from the amount
of R7
500-00 that the complainant had in his possession, and they returned
R3 000-00 the following day. Ms Mokhonazi’s group
gave R1
000-00 back and Ms Mashava’s group gave R2 000-00 back.
[93]
Mr Malebye denied that the complainant refused to greet him or
pointed
him out as the person who took the items from the bag.
[94]
Mr Malebye was referred to the statement made by the complainant on
21 June
2016 from this statement it transpired that the complainant
was a Nigerian citizen and medical practitioner residing in
Sunnyside.
The statement indicated that he laid a complaint of
robbery under case number CAS 000/06/2017. In this statement the
complainant
stated that he told Captain Mataung that he would
withdraw the case if the suspects returned his belongings. All of the
suspects
were called to the office, the complainant identified all of
them. The complainant stated that he pointed out that Mr Malebye was
the one who took his property and was also the one who verbally
harassed him and handcuffed him. He was also the one who was in
possession of his bag. He also stated that Mr Malebye was the one who
took the money. According to him Mr Malebye removed items
from the
bag including the Viagra tablets. In the statement the complainant
stated that he identified all the suspects and informed
them that he
had opened a case against them and that they should bring back his
property. According to this statement the suspects
voluntary
collected a sum of R3 000-00 and brought it to him, he however told
them he still wanted the cell phone, wrist watch
and $ 820, Viagra
tablets and a souvenir US Dollar Trillian bill. Mr Malebye then took
out the Viagra tablets and gave it to him,
and said he had already
used one. He informed them that he would give them until 17:00 to
return the items, failing which he will
proceed with the criminal
charges against them. It is unclear why the defendant’s counsel
did not also put the statement
to the plaintiffs, as he should have.
[95]
Mr Malebye denied the contents of the statement insofar as it
contradicted
his evidence. He also testified that Captain Mataung
told him that the other suspects were going to turn against him, and
that
was why he went to Lt Colonel Phiri.
[96]
Captain Mataung then testified. He had been a member of SAPS for
thirteen
years. He confirmed that on 20 June 2016 he was called by Ms
Mokhonazi to confirm the identity and credentials of the complainant,
which he did. After he informed them that the complainant was indeed
a medical practitioner, he told them to release him and continued
with his duties.
[97]
On 21 June 2017 he received a docket with case number 1000/06/2017.
After
perusing the docket, he realised that it related to the same
person and incident that he dealt with the previous day. There was
a
statement by the complainant dated 21/06/2017 in which he set out the
incident that occurred the previous day. In this stamen
the
complainant stated that apart from searching him the suspects shouted
at him and
inter alia
called him ‘a fucking foreigner”.
Mr Mashava searched him and took from him the contents of his pockets
which included
keys, phone and cash. He was forced to unlock his
phones and they read his messages, sms’s, WhatsApp’s,
videos and
photo galleries. He was uncomfortable and wanted to
contact his lawyer, in response Mr Malebye said that he was not
co-operating
and handcuffed him. At this point he was handcuffed and
two ladies entered the car. He was taken to the Pretoria Central
Police
Station, where he was interrogated and called names. He stated
that they wanted to go to an ATM to check the pins of his cards.
[98]
According to the statement they put all the complainant’s items
in a bag and threatened
to lock him up. He requested to phone his
lawyer, whereupon he was told that he had money for a lawyer, but not
for “cold
drink”, referring to a bribe. They counted the
money, which was R7 500- 00 and divided it in two. They gave him his
bag and
when he checked it R4 000-00, $ 820, his wrist watch and
Viagra tablets were gone. He said that Mr Malebye was the person who
took
it. The statements should have been put to the other witnesses,
no objection was however raised by the plaintiffs’ counsel
in
this regards. In any event most of the evidence was in one way or the
other, with some deviation confirmed by the plaintiffs.
[99]
Captain Mataung testified that after reading the statements he phoned
the complainant and informed the plaintiffs and Mr Malebye to come to
his office. He confirmed the meeting of all concerned at
his office.
When everyone was present they were informed about the complaint.
According to him, he told them that the complainant
was willing to
withdraw the complaint, if they returned his property. They requested
to go outside to discuss it and returned with
R3 000-00 and Mr
Malebye produced two of the three Viagra tablets. They were given
until 17:00 to return the items, failing which
they would be charged.
He phoned to find out whether they made any progress. The plaintiffs
were still around, but Mr Malebye was
nowhere to be found. He
eventually got a call from Mr Malebye who said that he was stuck in
Hammanskraal. He told the others to
go home.
[100]
On the morning of 22 June 2017 he went to the station and reported to
the station commander, Lt Colonel
Phiri and informed him about the
situation and requested him to read the statement from the
complainant. He said it was clear from
the statement that the
plaintiffs acted together and used force by threatening the
complainant, handcuffing him and threatening
him with arrest.
According to him they were arrested without a warrant, as they were
charged with common robbery in terms of
section 40(1)(b).
They were
also charged with extortion. In terms of the complainant’s
statement he was threatened with arrest, handcuffed
and forced into
his car. He arrested them and they were taken to the cells. The
matter was transferred to the Commercial Crimes
Court and the matter
was remanded and they were released on bail. The charges were in due
course withdrawn against the plaintiffs,
as they agreed to become
section 204
witnesses.
[101]
What also informed his decision to arrest the plaintiffs and Mr
Malebye was the fact that
they returned R3 000-00 to the complainant
in his office, which was indicative of the fact that there was
substance in the complainant’s
claim that his property was
taken by the group, the fact that Mr Malebye put it on the table, did
not in his eyes absolve the others
in light of all the circumstances.
In the light of the statement of the complainant, and the money that
was returned Captain Mataung
said that he had reasonable suspicion
that common robbery was committed by the group.
[102]
On 16 August 2017 the prosecutor requested Captain Mataung to obtain
a statement from
Lt Colonel Phiri to explain why the other persons
were linked to the crime as the complainant only mentioned Mr Malebye
and Mr
Mashava. This observation was however incorrect as the
statements made by the complainant, despite mentioning Mr Malebye by
name,
also implied involvement by the other members of the group. One
must take into consideration that even if Mr Malebye was the main
culprit the others, who were part of the police service, did nothing
to stop him and allowed a crime to be committed in their presence.
As
a result, there existed a reasonable possibility that they identified
with the crime committed and could have been found guilty
on the
basis of common purpose or various other criminal constructs,
depending on the evidence produced at the trial.
[103]
Captain Mataung testified that he was of the view that in the light
of the statement made
by the complainant, the actions of the
plaintiffs and Mr Malebye, he was entitled to arrest them in terms of
section 40(1)(b)
of the CPA as he was convinced that they committed
common robbery, as it is known in legal vernacular, which is a
schedule 1 crime.
The decision of the prosecutor to charge and later
withdraw the charges was not in his control. He also testified that
the charges
against the other witnesses were withdrawn as they were
going to make statements as witnesses against Mr Malebye in terms of
section 204
of the CPA.
[104]
The police docket referred to in cross-examination indicated that the
prosecutor requested Captain
Mataung to contact the complainant inter
alia, but importantly also stated “I am well aware that the
matters was (sic) withdrawn
against others (sic) suspects but it can
always be reinstated should it be necessary and the state is at
liberty to do that”.
[105]
The last witness was Captain Henrico. Before analysing his evidence,
it must be pointed out
that he is presently positioned at the
Pretoria High Court. This was not revealed to the Court, and although
I had very little
contact with him as I have not been in the criminal
Court for some time, this could have created numerous legal and
ethical problems.
As the matter was done virtually I saw him for the
first time when he started testifying during the last day of the
two-week trial,
and did not recognise him. My Registrar after the
first day of his evidence pointed out to me that he was stationed at
the court.
This was discussed with counsel but both of them agreed
that it did not disqualify this Court to hear his evidence. It must
however
be pointed out that this fact should have been brought to the
Court’s attention as it could have happened that the presiding
judge might not have been in a position to hear the case, if she knew
the witness. The fact that the Court only became aware of
this fact
at nearly the end of the trial could have had catastrophic
consequences for all the litigants. Legal practitioners should
timeously warn a presiding officer of any facts or circumstances that
could possibly compromise the integrity of the process.
[106]
The evidence as set out was that Captain Henrico used racial slurs
against Ms Mokwanazi.
Something that he vehemently denied. The
pleadings however alleged that he used the racial slurs against all
the plaintiffs. No
amendment was sought, nor was any explanation
given for this contradiction. In the absence of the above some doubt
is placed on
Ms Mokhwanazi’s version. Her evidence should also
be considered with the contradictions about this incident between her
evidence
and the evidence of the other women in the cell. However,
all of the above turned out to be irrelevant as it is unclear what
the
relevance of the alleged racial slurs were seeing that this court
had to determine only the merits of an unlawful arrest action.
The
pleadings also did not assist. No cause of action was set out in the
pleadings relating to this incident the pleadings read
as follows:
“
5.
5.1
On or about 22 June 2017 at or near Pretoria Central Police
Station, Gauteng Province, the
Plaintiff was
arrested by
members
of the SAPS.
5.2
The Plaintiff was held in detention and while there, was
insulted by one Captain Hendrico, we referred to the Plaintiff using
racial
slurs.
5.3
While
detained,
the
Plaintiff
was
denied
the
right
to
have
his family members visit.
5.4
The plaintiff was released the next day, without any charge.
6.
GENERAL
DAMAGES
The
Plaintiff was wrongfully and unlawfully insulted while held detention
by
a
member of the
SAPS
known as Captain Hendrico in
that:
6.1
The members referred to the Plaintiff and his co-arrestees
using racial slurs.
6.2
The verbal insults were derogatory and defamatory in nature;
6.3
The verbal insults were made in the presence of an audience.”
[107]
From a perusal of the papers Captain Henrico’s actions would
only have been relevant if the
plaintiffs succeeded and the
quantum
needed to be determined. I refrain from making any finding in
this regard as this incident has nothing to do with the merits of the
claim against the defendant, which was solely based on an unlawful
arrest and Captain Henrico’s alleged actions had nothing
to do
with the arrest itself. I was informed that he was found guilty of
crimen injuria,
but that finding has no relevance in
the matter before me.
APPLICATION
OF THE LAW TO THE EVIDENCE
[108]
It was
common cause that
the
defendant in
order to
succeed in
proving
that the
arrest without a warrant was justified in terms of
section 40(1)(b)
of
the
CPA had
to prove,
that
the
arrester was a peace officer,
and must
have entertained a reasonable suspicion that the suspect committed a
Schedule 1 offence and the suspicion must have rested
on reasonable
grounds. Seeing that the defendant carried the onus it is unclear why
the plaintiff chose to begin leading evidence
in the light of all
these facts. If the defendant started leading evidence, as should
have been
the case, the duration of the trial could have been shortened, as a
lot of the evidence that was led was not determinative
of the
dispute between the parties.
[109]
Once
the aforesaid jurisdictional facts are present a discretion arises
whether or not to arrest.
[1]
The
only issue that actually needed to be determined was whether Captain
Mataung had reasonable grounds to suspect that the plaintiffs’
committed a Schedule 1 offence. A perusal of the evidence makes it
clear that in at least one statement the complainant stated
that he
was threatened with arrest, handcuffed and
insulted.
He made two statements, implicating all
the
plaintiffs, despite identifying Mr Malebye as the main culprit. To
top it all
the
plaintiffs left Captain Mataung’s office and produced R3
000-00, after they had discussions between themselves. The fact
that
Mr Malebye put it on the
table,
did not mean that a suspicion that they were all involved was
not
reasonable. The evidence of some of the plaintiffs also confirmed
that the complainant was handcuffed and money was taken from
him,
despite
the fact that the statement was not put to the plaintiffs the
evidence bore the statement out.
[110]
A police officer has to weigh and consider all the facts and
circumstances, when he/she exercises
the discretion to arrest or not
and it has been stressed by our courts that it is neither prudent nor
practical to lay down a general
rule under which a police officer may
exercise his discretion, as it may stymie them in the exercise of
their power and constitutional
duty
to combat crime.
[2]
[111]
I
am of the view that Captain Mataung in the light of all the facts and
circumstances exercised his discretion properly and based
it on
reasonable grounds.
[3]
It is
also clear from the evidence that he exercised his discretion in good
faith and not arbitrarily.
[4]
[112]
The
use of threats of arrest, insults and the allegations that the
complainant was handcuffed, brought the offence which was possibly
committed
under the definition of robbery, which is a Schedule 1 offence. It
must be
remembered
that
absolute
certainty that
the
offence
was
indeed a Schedule 1 offence is not required
[5]
.
[113]
It
is trite that the question of whether the suspicion is reasonable
must
be
approached
objectively, as
a
result
the
circumstances
must
be
such
that
it would move a reasonable man to believe that a first Schedule
offence was committed. In the light of all the facts the Court
found
that
Captain
Mataung's suspicion was reasonable under the circumstances. It must
also be noted that the subsequent withdrawal of charges
did not
affect the lawfulness of the arrest.
[6]
[114]
The essence
of the case before me accordingly was whether Captain
Mataung
acted in accordance with the legal position set out above. Despite
the evidence and inconsistencies between the witnesses,
regarding
certain details of the incident. Captain Mataung was confronted with
a complaint that indicated that a robbery could
have been committed
by members of the police and he acted on the information that he
obtained.
[115]
I
am of the view that the defendant succeeded in proving the
jurisdictional facts on a balance of probabilities. It must also be
noted that the issue of discretion is not one of the jurisdictional
facts
required in
section 40(1)(b)
once
the
jurisdictional
facts
are
established
the
party
who raised the issue of discretion will have to prove that it was not
exercised properly
[7]
. The
plaintiffs did not succeed in the proving that the exercise of
discretion in the light of the facts was not exercised properly
and
this issues was never raised or ventilated by
the
plaintiffs
during
the trial.
[116]
In the
light of all the facts the defendant proved the necessary
jurisdictional facts and the claim should be dismissed with costs.
[117]
I make the
following order:
1.
The actions are dismissed; and
2.
The plaintiffs are ordered to pay the costs of the defendant
jointly
and
severally
the
one
paying
the
others
to
be absolved.
TOLMAY
J
JUDGE
OF THE HIGH COURT
DATE
OF HEARING:
18-29 JANUARY 2021
DATE
OF JUDGMENT:
30 APRIL 2021
ATTORNEY
FOR PLAINTIFFS:
MWIM ATTORNEYS
ADVOCATE
FOR PLAINTIFFS:
ADV J S C NKOSI
ATTORNEY
FOR DEFENDANT:
STATE ATTORNEY
ADVOCATE
FOR DEFENDANT:
ADV K TOMA
[1]
Du Toit et al; Commentary on the
Criminal Procedure Act, Service
60
- 2018) 5 -
14B
[2]
MR v Minister of Safety and Security 2016(2) SACR 540 (CC), Molewa v
Minister of Police
(unreported,
NMW case no 56/2015, 15 December 2016
[3]
Duncan v Minister of Law & Order 1986(2) SA 805 (A) at 818 G-H,
Minister if Safety and
Security
v Sekhoto & Another 2011(1) SACR 315 (SCA)
[4]
Naidoo v Minister of Police & Others 2016(1) SACR 468 (SCA) at
para 40-41
[5]
Du Toit, ibid 5 - 14C
[6]
Du Toit, ibid 5 -
14
E
[7]
Du Toit, ibid