Ngobeni v Minister of Police [2021] ZAGPPHC 439 (2 July 2021)

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[2021] ZAGPPHC 439
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Ngobeni v Minister of Police [2021] ZAGPPHC 439 (2 July 2021)

IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
CASE
NO:43633/2019
In
the matter between:
MARVIN
ITUMELENG NGOBENI
PLAINTIFF
and
THE
MINISTER OF POLICE
DEFENDANT
JUDGMENT
RAULINGA
J
1.
The plaintiff instituted a delictual claim
against the defendant for damages, following his arrest without a
warrant and detention
from 23 to 24 November 2017, at Eeresterust
Police Station.
2.
The plaintiff was released on bail on 24
November 2017, and the charge against him was withdrawn on 13
December 2017.
3.
The defendant pleaded that the plaintiff
was arrested for having assaulted Mr Winslou Elrico Isaacs, stabbing
him on the head with
a bottle, causing grievous bodily harm to the
complainant, and inflicted a dangerous wound.
4.
The plaintiff admits that he was arrested,
but denies that he assaulted the complainant, Mr Winslou Elrico
Isaacs, by stabbing him
in the head with a tikilai bottle, causing
him grievous bodily harm, and inflicting a dangerous wound. He also
pleads that at the
time the complainant was assaulted and the
altercation ensued, he was at home. Furthermore, the plaintiff pleads
that, the man who
had assaulted the complainant, Mr Ashley Harold
Hamburg, does not deny having done so and was even willing to testify
at the criminal
trial that he has been the one who assaulted the
complainant.
5.
At the outset of the trial, the defendant’s
counsel submitted to the Court that the arrest of the plaintiff was
effected in terms
of section 40(1)(b) of the criminal procedure Act,
51 of 1977. This is not denied by the plaintiff.
6.
Prior to the commencement of the trial, at
the pre-trial conference held on 9 February 2021, the parties agreed
to separate issues
in terms of rule 33(4). Therefore, the Court only
dealt with the issue of merits.
7.
There is no need for the Court to
regurgitate the evidence already on record, suffice to refer to the
relevant evidence, where necessary,
of the issues pertaining to
jurisdictional requirements and credibility of witnesses.
8.
Warrant officer Ramoshaba, the only witness
called by the defendant, was the arresting officer at the time of the
arrest. She testified
that on 23 November 2017, she arrested and
detained the plaintiff on the strength of a statement in which Mr
Winslou alleged that
the plaintiff stabbed him with a tikilai bottle.
She admitted that she tried to look for the complainant and the
witnesses, but she
could not trace them. As a consequence, she relied
on the statement to effect the plaintiff’s arrest. She also
testified that the
arrest and detention was the only option. Warrant
Officer Ramoshaba admitted that she didn’t conduct any further
investigation
before arresting the plaintiff.
9.
Among others, the plaintiff testified that
he never stabbed the complainant with a bottle. It was his friend, Mr
Humburg, who assaulted
the complainant. (Mr Humburg was an
acquaintance of his.)
10.When
called to testify, Mr Humburg said that he was not friends with the
plaintiff. He saw him for the first time on the day of
the incident.
He denied that he knew about the charges against the plaintiff.
11.This
matter can be decided only on the presence or absence of certain
jurisdictional facts.
12.The
legal position regarding justification of a warrantless arrest in
terms of section 40(1)(b) of the CPA is stated as follows
in
Duncan
v Minister of Law and Order
[1]
:
“
The
so-called jurisdictional facts which must exist before the power
conferred by section 40(10(b) of the present Act may be invoked,
are
as follows:
(1)
The arrestor must be a peace officer;
(2)
He/she must entertain a suspicion;
(3)
It must be a suspicion that the arrestee
committed an offence referred to in Schedule 1 to the Act (other than
one particular offence);
and
(4)
That the suspicion must rest on reasonable
grounds. If the jurisdictional requirements are satisfied, the peace
officer may invoke
the power conferred by the subsection, i.e. he may
arrest the suspect”.
13.It
is common cause that W/O Ramoshaba was a peace officer. In my view,
this is the only jurisdictional fact that was present when
she
arrested the plaintiff without a warrant.
14.I
agree with counsel for the plaintiff that the reading of Schedule 1
of the CPA; makes no mention of assault grievous bodily harm
as one
of the offences with which the plaintiff was arrested, charged and
incarcerated.
15.The
Supreme Court of Appeal in
De
Klerk v Minister of Police
[2]
said the following:
“
[9]
It is common cause that Schedule 1 does not include assault with
intent to do grievous bodily harm.  It lists an offence
of
‘assault when a dangerous wound is inflicted’. Therefore, one of
the jurisdictional facts is absent. It cannot be said that
Ms Ndala
entertained a reasonable suspicion that the listed offence had been
committed. It is trite that the arrestor must be a peace
officer, who
entertains a suspicion that the suspect committed an offence referred
to in Schedule 1 and that the suspicion must rest
on reasonable
grounds. (See
Duncan v Minister
of Law
and
Order 1986 SA (2) 805 (AD) at 818 G-J
).
The learned Judge in Duncan stated further that ‘if the
jurisdictional requirements are satisfied, the peace office may
invoke
the power conferred by the subsection; i.e. he (or she) may
arrest the suspect. In other words, he (she) then has a discretion as
to whether or not to exercise that power. No doubt the discretion
must be properly exercised. But the grounds on which the exercise
of
such a discretion can be questioned are narrowly circumscribed.”
16.In
order to exercise a discretion properly, a reasonable man will
therefore analyse and assess the quality of the information at
his or
her disposal critically and he/she will not accept it lightly or
without checking where it can be checked. It is only after
an
examination of this kind that he will allow himself to entertain a
suspicion which will justify the arrest-
Mabona
and Another V Minister of Law and Order and Others
[3]
.
17.In
casu
, W/O
Ramoshaba relied on the statement by the complainant, when she made
the decision to arrest. In my view, this was insufficient.
The
arresting officer failed to investigate the circumstances of the
assault itself. She also failed to confirm the evidence of the
complainant through the evidence or statements of the witnesses on
the day of the incident. The arresting officer failed to determine
as
to whether the offence is listed in Schedule 1. Given the fact that
the plaintiff lives just across the street to the police station,
the
arrest without a warrant in the circumstances was not lawfully
permissible. While I sympathise with her for the fact that she
had
been looking for the plaintiff several times without success, she
failed to established the jurisdictional facts, in particular
whether
the offence was a Schedule 1 offence. The suspicion didn’t rest on
reasonable grounds. As a consequence, the majority of
the
jurisdictional facts were not met.
18.An
arrest is, in general a harsher method of initiating prosecution,
than citation by way of warning or summons. Arrest, and detention,
usually amount to the violation of the accused rights. This may be
avoided by releasing the suspects on warning, particularly where
he
lives in the neighbourhood of the police station.
19.In
his evidence at the trial, the plaintiff contradicted the contents of
a statement he submitted to the police on the day of his
arrest. I
don’t think this discrepancy can tarnish the whole case of the
plaintiff- see in this regard
S
V Mafaladiso
[4]
.
20.The
defendant also denies the contradiction between the testimony of the
plaintiff and his witness, Mr Humburg. I don’t think
that these
contradictions are of a nature that can cause a fatal destruction to
the case of the plaintiff. I must mention though
that, the plaintiff
was a bad witness. From his demeanour one may deduce that he was at
times groping in the dark. However, that
does not affect his
credibility in toto- see
S
V Mkohle Nestadt
[5]
.
21.In
the result, the plaintiff’s claim succeeds with costs.
JUDGE
T. J RAULINGA
JUDGE OF THE HIGH
COURT
Appearances
Plaintiff’s
Counsel

: Adv. T. Snyders
Plaintiff’s
Attorneys
: Gildenhuys Malatji Attorneys
Defendant’s
Counsel
: Adv B.
J Nodada
Defendant’s
Attorney
: State Attorney
Date of
hearing
: 11-12 March 2021
Date
of judgment
:  02 July 2021
[1]
1986(2)
SA 805(A) at 818G-H.
[2]
[329/17]
[2018] ZASCA 45
(28 March 2018).
[3]
1988
(2) SA 654
(SE) at E-H.
[4]
2003
(1) SACR 583
(SCA) 593e- 594 a-h.
[5]
1990
(1) SACR 95
(A).