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[2021] ZAGPJHC 858
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Malinga v Minister of Police (A3115/2016) [2021] ZAGPJHC 858 (22 July 2021)
IN
THE HIGH COURT OF SOUTH AFRICA,
GAUTENG
LOCAL DIVISION, JOHANNESBURG
APPEAL
CASE NO: A3115/2016
REPORTABLE:
YES
/ NO
OF
INTEREST TO OTHER JUDGES:
YES
/NO
REVISED.
In
the matter between:
BENFOL
KEHLA
MALINGA
Appellant
and
MINISTER
OF
POLICE
Respondent
JUDGMENT
MKHABELA
AJ (MEYER J CONCURRING)
[1]
This is an appeal against the judgment of
the Johannesburg Magistrates’ Court holding that the Minister
of Safety and Security
was not liable for damages suffered by the
appellant because of his arrest and subsequent detention for two days
by members of
the South Africa Police Service (“SAPS”)
since the appellant s’arrest was lawful.
[2]
The incident giving rise to the appellant’s
cause of action occurred on or about 13 and 14 August 2014, when the
appellant
was arrested and subsequently detained for two days for
having committed perjury by making a false statement under oath to
the
Booysens Police to the effect that he was hijacked by unknown
people. The appellant was charged with the offence of having
contravened
s 9 of the Justice of Peace and Commissioners of Oaths
Act 16 of 1993, which provides that ‘any person, who in an
affidavit
or solemn attested declaration made before a person
competent to administer an oath or affirmation or take the
declaration in question,
has made a false statement knowing it to be
false, shall be guilty of an offence and liable upon conviction to
the penalties prescribed
by law for the offence of perjury’. In
the alternative, the appellant was charged with the crime of
attempting to defeat
the administration of justice.
[3]
The events preceding his arrest and
subsequent detention are largely common cause between the parties.
The appellant had been employed
as a driver by one Mr Franswell.
[4]
It is common cause that on or about 13
August 2014, Constable Baloyi ( Baloyi) and his colleague, Constable
Maphosa, ( Maphosa)
went to the appellant’s place of
employment. On their arrival they introduced themselves as police
officers from Johannesburg
Central Police Station. They had with them
a police docket in which the appellant had opened a car hijacking
case the previous
night at the Booysens Police Station. Mr Franswell,
the appellant’s employer, upon being asked by Baloyi about the
whereabouts
of the appellant, confirmed that the appellant was indeed
employed by him and was on duty.
[5]
Baloyi and Maphosa requested that the
appellant should take them to the scene of the crime. The appellant
obliged and accompanied
them to the alleged crime scene.
[6]
On
arrival at the purported
[1]
crime
scene, the appellant decided to tell the truth and revealed that in
fact he had never been hijacked at all. He went on to
explain that he
had lost his keys when he had gone inside a horse betting place and
he realised that he could lose his employment
for being at an
unauthorised location, he then concocted the alleged hijacking
incident.
[7]
Upon the appellant’s revelation or
admission that he was never hijacked, Baloyi and Maphosa took the
appellant back to his
place of work.
[8]
On arrival at the appellant’s place
of work, his employer, Mr Franswell was informed about the false
hijacking incident and
the appellant was then arrested by Baloyi and
taken into custody after having been informed that he was being
arrested for committing
perjury.
[9]
During
cross-examination, Baloyi was asked whether he agreed that perjury
was not a serious offence to which he responded that he
did not know.
He testified that according to him “if a person did
something
[2]
wrong
it was his duty to arrest that person”.
[10]
The following exchange between Baloyi, and
the appellant s’ attorney , Mr Talane,is instructive and worth
reproducing in its
entirety:
“
Mr
Talane: Do you know under which schedule of the Criminal Procedure
Act this office resorts?
Const Baloyi:
As a police officer if a person has done something which is actually
against the law it is my duty to arrest that person and detain him.
Court:
Yes, Sir, just answer the question, the question is do you know
what
schedule this offence falls under.
Const Baloyi:
I do not know.”
[11]
The respondent called two other officers to
testify in addition to Baloyi, namely Maphosa and Constable Mokgotla
respectively. It
is not necessary to refer and analyse their evidence
given at the trial.
[12]
The appellant was the only witness that
testified in his case. His testimony focussed on asserting that the
statement that he signed
when he opened the false hijacking case was
not made under oath.
[13]
The
cross-examination of the appellant was uneventful and the
respondent’s attorney did not appear
[3]
to
be aware of what the triable issue was notwithstanding the
Magistrates’ attempts to steer her in the right direction.
[14]
In closing argument, the attorney for the
appellant conceded that Baloyi as the arresting officer was entitled
to assume that the
appellant made a statement under oath when the
appellant opened the case of hijacking at the Booysens Police
Station.
[15]
However,
the submission on behalf of the appellant was that “
our
law calls
[4]
upon
the exercise of a discretion when an offence has been committed
whether to arrest or not to arrest at that time”
.
In
Minister
of Safety and Security v Sekhoto and another
2011
(1) SACR 315
(SCA), however, it was held that there is no
jurisdictional requirement that obliges a police officer to consider
whether there
are less invasive options available to bring a suspect
before court,
[16]
The respondent’s submission was that
the appellant committed the offence of perjury when the appellant
admitted that he was
never hijacked at the purported crime scene and
that the arresting officer was entitled to effect the arrest since
the offence
of perjury was being committed in his presence as
contemplated in Section 41A of the Criminal Procedure Act, 51 of 1977
(“CPA”).
[17]
In the light of the background facts the
issue that falls crisply for determination is whether the arrest was
lawful. If the answer
is in the affirmative, it will be the end of
the enquiry. However, if the answer is in the negative, the second
issue that would
have to be determined is the issue of the quantum of
damages for the two nights that the appellant spent in police
custody.
[18]
The Learned Magistrate found correctly, in
my view that the appellant committed perjury when he opened the
alleged hijacking case
as contained in exhibit A – and that the
onus was on the defendant to justify the arrest. In any event, the
appellant s’
attorney conceded in close argument that Baloyi
was entitled to assume that the appellant had made the statement
under oath when
he opened the case of hijacking at the Booysens
police station.
[19]
I agree with the learned Magistrate’s
finding that it is highly unlikely that the police officer who took
the statement which
is exhibit A would not have explained to the
appellant the consequences of taking the prescribed oath.
[20]
In analysing the applicable law, the
Learned Magistrate noted that the respondent contended that the
arrest was lawful in terms
of Section 40(1)(b) and that an arrest
without a warrant is only permissible where the following
requirements are met:
20.1
First, where the arrestor is a peace
officer;
20.2
Second, the arrestor must entertain a
suspicion.
20.3
Third, the suspicion must be that the
suspect or arrestee committed an offence referred to in Schedule 1 of
the CPA.
20.4
Fourth, the suspicion must rest on
reasonable grounds.
[21]
The Magistrate held correctly in my view on
the probabilities that the appellant made a false statement under
oath to the effect
that he was hijacked and that Baloyi was in
possession of this statement when he arrested the appellant.
[22]
It
is trite law that both statutory and common law perjury are serious
crimes and experience shows the disturbing frequency with
which the
state witnesses materially depart from their police statements, thus
potentially frustrating the proper administration
of justice.
[5]
[23]
Schedule 1 of the CPA
inter
alia
provides as follows:
“
Any
offence, except the offence of escaping from lawful custody in
circumstances other than the circumstances referred to immediately
hereunder, the punsishment wherefor may be a period of imprisonment
exceeding six months without the option of a fine.’’
S
v Andhee
1996
(1) SACR 419
(A), is but one example where Smalberger confirmed a
sentence of 9 months’imprisonment for perjury. I nevertheless
disagree
with the Learned Magistrate’s finding that the arrest
of the appealing was lawful.
[6]
All
four jurisdictional facts must be present to justify an arrest
without a warrant. Once it is accepted that the third jurisdictional
fact is missing, it is the end of the matter. The credibility of the
appellant in neither here nor there.
[24]
In this regard Baloyi, who is the arresting
police official, did not even know under which schedule perjury falls
into. It follows
therefore that Baloyi could not have exercised a
discretion to the effect that the offence of which the appellant was
arrested
for fell under Schedule I of the CPA. He did not entertain a
suspicion that the appellant committed an offence which is referred
to in Schedule 1 of the CPA.
[25]
The
Magistrate’s finding to the effect that the arrest was lawful
cannot be sustained and falls to be set aside – since
it
amounts to a glaring misdirection on the facts and the law. It is, as
I have mentioned, trite law that there is no fifth jurisdictional
fact given the decision of the SCA in the case of
Minister
Safety and Security v Sekhoto
.
[7]
[26]
It
is well-established that where a misdirection is so significant such
as in this case, an Appeal Court is entitled “not
to accord to
the Magistrate’s finding of fact the same weight which would
ordinarily be given to the finding of fact of the
Trial Court”.
[8]
Furthermore,
it is trite law that where the trier of fact has misdirected himself
or herself in respects so material that they vitiate
the presumption
that the findings of fact are correct an Appeal Court is obliged to
re-evaluate the evidence afresh as best as
it can given the
limitations inherent
[9]
in
it not having seen and heard the witness testifying.
[27]
In this case it is not in dispute that
Baloyi did not even know under which Schedule perjury falls. On the
contrary he did not entertain
a suspicion not one that the appellant
committed an offence referred to in Schedule 1 of the CPA.
Accordingly, there could be no
dispute that the third jurisdictional
fact is absent. Hence the appeal must succeed on this basis alone.
[28]
This brings me to the question of quantum.
It appears that upon a reflection of the case law, an amount of
R120 000.00 would
be reasonable since the appellant spent two
nights under very intolerable conditions such as sleeping in the same
room which has
the toilet that can not be flushed after one has
relieved oneself.
[29]
In the result the following order is made:
1.
The appeal is upheld with costs.
2.
The order of the court
a
quo
is set aside and replaced with the
following order:
“
(a)
The defendant is to pay to the plaintiff an amount of
R120 000.00.
(b)
The defendant is to pay the plaintiff’s costs of suit.”
R
MKHABELA
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION
JOHANNESBURG
I
agree and it is so ordered
MEYER
J
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION
JOHANNESBURG
COUNSEL
FOR THE APPELLANT:
Adv E Lauren
INSTRUCTED
BY:
Talane Attorneys
ATTORNEY
FOR THE RESPONDENT:
Ms N Cingo
INSTRUCTED
BY:
State Attorney, Johannesburg
DATE
OF HEARING:
19 April 2021
DATE
OF JUDGMENT:
22 July 2021
[1]
I
say purported hijacking because it did not take place since the
appellant subsequently admitted that it was a lie.
[2]
See
008-140 to 008-141, top of page of the record.
[3]
See
the cross-examination of the appellant in the record.
[4]
See
the address to the Court by Mr Takalane for the appellant.
[5]
S
v Morrow
382/93
[1996] ZASCA 4
(28 February 1996) at para 14;
S
v Kumbani 1979 (3) 339 (E) at 341 B-C.
[6]
See
page 007-4, para 10 of the CaseLine pagination.
[7]
2011
(1) SACR 315 (SCA)
[8]
See
the case of
S
v Morrow
(382/95)
1996 (1) Z SCA 4 (28 February 1996).
[9]
See
S
v Morrow
at para 14.