About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2021
>>
[2021] ZAGPJHC 643
|
|
Dikgwatlhe and Another v The Minister of Police (A3039/19) [2021] ZAGPJHC 643 (27 August 2021)
REPUBLIC OF SOUTH
AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO:
A3039/19
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED:
In
the matter between:
PULE
DIKGWATLHE
First Appellant
TUMELO
MOGALE
Second Appellant
and
THE
MINISTER OF
POLICE
Respondent
JUDGMENT
GRENFELL
AJ
[1]
INTRODUCTION
1.1.
The appellants, as unsuccessful plaintiffs
in a trial in the Magistrate’s Court, sought damages from the
Minister of Police,
as a result of their arrest on 29 July 2011 and
further detention for a total of 12 days. The appellants were held in
custody after
their first appearance in court on 1 August 2011. At
their second court appearance on 10 August 2011 the charges against
three
suspects, including the two appellants, were withdrawn.
1.2.
The criminal matter arose from the
hijacking and motor vehicle theft of a blue Volkswagen Polo motor
vehicle (“the vehicle”)
in Lenasia on the morning of 29
July 2011. The vehicle was fitted with a tracking device, and the
scene played out in the aftermath
of the hijacking, with the capture
of a suspect Mr Bongani Nhleko (“Mr Nhleko”) by certain
Matrix employees, who were
following the vehicle both on land and in
the air with a hovering helicopter. Constable Sekgobela in uniform
and driving a police
van, was approached by one Mr Mienie (“Mr
Mienie’) a Matrix employee who had Mr Nhleko in his vehicle to
hand over
to the police. Mr Nhleko had the key to the stolen vehicle
in his possession. The group travelled to the scene where the vehicle
was parked, where Constable Sekgobela confirmed from the registration
number that the vehicle was stolen. Mr Nhkelo then directed
the group
to a further location being the first appellants’ home, where
the appellants were found. What happened thereafter
leading to the
appellants arrest, is the nub of the first part of this case. Neither
Mr Nhleko nor Mr Mienie testified at the trial,
which failure was
said by the appellants to be “fatal” in a determination
of the appeal.
1.3.
The trial in the court a quo, the
Vereeniging Magistrate’s Court, ran over a number of
non-consecutive days before Magistrate
Moletsane, who passed away
before the matter could be finalised. The record uploaded to
Caselines in the appeal, and relied upon
in the Appellants’
Heads of Argument by Ms Liphoto, who appeared for the appellants in
the appeal, contained this record
and references to the trial
proceedings before Magistrate Moletsane, with the purpose of pointing
out inconsistencies in the evidence.
It was raised at the start of
argument in the appeal with Ms Liphoto, that the prior trial record
comprised inadmissible hearsay
evidence and was not before the
Magistrate, Ms Reyneke, who handed down Judgment, having heard the
trial de novo. In response to
the raising of the admissibility of
previous evidence given by Constable Sekgobela on behalf of the
Minister of Police before Magistrate
Moletsane in this appeal, Ms
Liphoto disavowed any reliance thereon and submitted that she would
“leave it”.
1.4.
An
appeal court is enjoined to decide the appeal on admissible evidence
only.
[1]
If inadmissible
evidence has been received, as being admitted by the trial court
without objection, it is the duty of the appeal
court to reject it
when giving judgment.
[2]
The
above statement is true of both the situations of where there has
been an objection and no objection to the evidence in the
court a
quo.
[3]
1.5.
Thus, this appeal court, in determining the
appeal is confined to the record of trial proceedings before
Magistrate Reyneke and
her judgment which is being appealed against.
1.6.
At the start of the appeal hearing, which
was heard virtually on 2 August 2021, condonation was duly sought and
granted for the
late filing of practice notes and the late uploading
of heads of argument to the Caselines platform by the parties in the
appeal.
1.7.
The appeal is concerned with two aspects,
the first being whether the appellants were unlawfully arrested on 29
July 2011 and secondly,
whether after the first appearance in court
following the arrest on 1 August 2011 their continued detention for 7
additional days
(12 days in total) was unlawful.
1.8.
The appellants, during the course of the
trial in the court a quo before Magistrate Reyneke, abandoned their
case against the Minister
of Justice (and Constitutional
Development), who had originally been cited as a second defendant.
This abandonment was unequivocally
indicated by their legal
representative, Mr Hlapolosa, the attorney who represented the
appellants in both trials in the court
a quo and the abandonment was
recorded in the Magistrate’s Judgment. This aspect was not
contested on appeal by the appellants.
1.9.
The appellants’ case was thus
confined to the conduct of the employees of the Minister of Police,
both in respect of the arrest
and further detention after the first
appearance by the appellants in court.
[2]
JUDGMENT IN THE COURT A QUO AND GROUNDS
OF APPEAL
2.1.
There
was no dispute between the parties as to the test to be applied in
considering whether the arrests were lawful. Both parties
accept that
theft is an offence referred to in schedule 1 of the
Criminal
Procedure Act 51 of 1977
, as amended, and the jurisdictional facts
for the invocation of a defence based on
Section 40
(1) (b) include,
inter alia, the arrestor must entertain a suspicion and that the
suspicion must rest on reasonable grounds.
[4]
2.2.
The
court a quo, mindful that the onus of proof in respect of the
lawfulness of the arrest without a warrant was on the respondent,
found that there had been established a reasonable suspicion, based
on common cause facts, that the appellants had committed the
crime of
vehicle theft, which was objectively sufficient
[5]
to inform the view of Constable Sekgobela who arrested the appellants
at Mr Dikgwatlhe’s house in Lawley or at the scene
where the
stolen vehicle was retrieved, on the day of the hijacking.
2.3.
In
applying the dictum in Mabona v Minister of Law and Order
[6]
,
the Magistrate took note that the suspicion must be on solid grounds
and not flighty or arbitrary. This test was contended for
too in the
heads of argument for the respondent.
2.4.
Having
noted that a reasonable suspicion to be entertained by the arresting
officer is not the same as a prima facie case in court,
the
Magistrate in her reasoning in the Judgment, set out five common
cause facts, which in her view objectively justified a reasonable
suspicion on the part on Constable Sekgobela in arresting the
appellants.
[7]
These comprised:
that a helicopter tracked the Polo; that the Polo was located and
that the key that was found in Bongani’s
(Mr Nhleko’s)
possession fitted on (sic) this stolen vehicle; Mr Dikgwatle (first
appellant) admitted that a Polo vehicle,
earlier in the day, was at
his yard; three persons including the plaintiffs (appellants) were
found at the house of Mr Dikgwatle
(first appellant) and Bongani (Mr
Nhleko) pointed the plaintiffs (appellants) out and indicated they
were involved in the theft.
2.5.
On appeal, Ms Liphoto for the appellants,
confined her submissions in critiquing the reasons given by the
Magistrate for finding
that a reasonable suspicion existed, to
considerations that everything said to Constable Sekgobela by Mr
Mienie or Mr Nhleko was
hearsay and should not be considered, as
neither witness was called to testify.
2.6.
This submission fails to appreciate that it
was Constable Sekgobela who was required to form the suspicion. This
he could only do
from facts at his disposal or told to him prior to
the arrest. What he also knew at that stage, and as set out in the
Judgment,
was that a vehicle had been hijacked by more than one male
person, he had met Mr Mienie with Mr Nhleko and they travelled to the
location of the vehicle, where the description matched that of the
hijacked vehicle and Mr Nhleko had the key to open the vehicle.
It
was Mr Nhleko who led Constable Sekgobela to the house in which the
appellants were found. That evidence is not hearsay. No
corroboration
of the arresting officer was required to discharge the onus that he
had a reasonable suspicion.
2.7.
The record does not substantiate the third
common cause fact listed by the Magistrate, namely that Mr Dikgwatle
(the first appellant),
admitted that a Polo vehicle was earlier in
the day at his yard. This was his evidence only after the arrest at
the time of testifying
in the trial. I do not consider this error by
the Magistrate to be material or a misdirection of fact.
2.8.
Bearing
in mind, the benefits that the trial court has in seeing and
listening to the witnesses
[8]
,
there is nothing to suggest that the Magistrate misdirected herself
on the facts. Various factors relied upon by the respondent
in the
trial, were found by the Magistrate to be unsupportive of the
objective criteria required to form the reasonable suspicion,
in
particular the hovering helicopter.
2.9.
The Magistrate did not consider Constable
Sekgobela to be an entirely satisfactory witness and founded her
factual findings on common
cause facts, not necessarily as summarised
by her, but dealt with in the course of the judgment. Whilst there
are many justifiable
criticisms of the evidence of Constable
Sekgobela and his statement contained more omissions than facts, said
by him to be due
to inexperience in the police force, they are not
destructive of the conclusion reached by the Magistrate.
2.10.
In addition, the matter does not turn on
mutually destructive versions between the appellants and Constable
Sekgobela, but rather
on a conspectus of common cause facts, an
objective reasonable suspicion had been established as a defence to
justify an arrest
of the appellants.
2.11.
A dispute which loomed large in the
evidence of the appellants at the trial and in argument on their
behalf, was that it was the
Matrix employee Mr Mienie who arrested
the appellants at the house of one of them and not Constable
Sekgobela.
2.12.
This point is a non-starter for the
appellants, because, as pointedly submitted by Ms Mtsweni, who
appeared for the respondent,
if the appellants were not arrested by
the police, then why did they sue The Minister of Police for damages
for unlawful arrest
and not confine themselves to a claim against
Matrix and their employees? Further if they had not been arrested by
the police,
the appellants would not have appeared in court.
2.13.
It may be that the point could have been
made on the appellants behalf, that having already been taken into
custody by the Matrix
employee, who facilitated the travelling from
the house at which the appellants were found, to the location where
the hijacked
vehicle was found, Constable Sekgobela did not form his
own reasonable suspicion that the appellants had committed an
offence,
but just relied on the judgment of Mr Mienie. This however
was not the case of the appellants, either in the pleadings, in the
trial evidence or on appeal.
2.14.
It must have been perfectly obvious to the
appellants that Mr Nhleko had led Mr Mienie and the police to the
house where they were
found, and yet they chose to remain silent when
arrested, which, on the Magistrate’s finding, probably occurred
at the house,
not where the vehicle was revisited by the group.
2.15.
Much was made in submissions for the
appellants at the hearing of the appeal, about the fact that
Constable Sekgobela did not ask
the appellants their names or
establish from Mr Nhleko the names of his co-perpetrators in the
hi-jacking. I do not agree that
this is significant. Many instances
occur when an arrest takes place based on conduct and information
rather than identity at the
stage of arrest. To do so, does not
detract from having a reasonable suspicion that a crime has been
committed. Hypothetically,
if a suspect refuses to speak or disclose
his name, it cannot be realistically suggested that no arrest can
take place absent a
name, once a reasonable suspicion exists in the
mind of the arresting officer.
2.16.
I am accordingly of the view that the
Magistrate was correct in finding that the onus had been discharged
by the Respondent to establish
an objective reasonable suspicion by
Constable Sekgobela that the appellants had committed an offence
justifying their arrest without
a warrant.
[3]
THE DETENTION AFTER THE FIRST COURT
APPEARANCE
3.1.
Having concluded that there was a
reasonable suspicion to arrest the appellants the Magistrate
concluded her Judgment by dismissing
their claims with costs.
3.2.
This however was premature and not the end
of the inquiry. The omission was caused by a simplistic
identification of the issues
in dispute, as being: the identity of
the arrestor, justification of the arrests and quantum of damages.
3.3.
In order to consider the second argument
made on behalf of the appellants, raised in the heads of argument and
argument for the
appellants on appeal, namely that they should have
been released at the first court appearance on 1 August 2011, when a
statement
made by Mr Nhleko identified his co-accused and was alleged
to have stated that the appellants and a third suspect had nothing to
do with the hijacking.
3.4.
On
this aspect, although ignored by the Magistrate and not dealt with in
the heads of argument for the appellants, the onus to prove
a
continued unlawful detention is on the plaintiff or appellants, as
recently reaffirmed by the Supreme Court of Appeal.
[9]
3.5.
This
onus arises whether or not the initial arrest was lawful or
unlawful.
[10]
3.6.
An examination of the pleadings and the
status of documents used at the trial is required in order to address
whether this issue
was raised in the pleadings of the appellants,
which were amended and whether, if properly raised, the appellants
have discharged
the onus of proving that their continued detention
was unlawful.
3.7.
Regardless of those two facets, it is
beyond dispute that it is only the conduct of the police that falls
to be considered, as any
claim against the prosecutor or magistrate
would fall within the ambit of constitutional responsibilities of
employees of the Minister
of Justice, who was originally joined as a
defendant but against whom the claim of the appellants was abandoned
at the trial.
3.8.
In paragraph 5 of the appellants’
particulars of claim, as amended, they raised the issue of their
continued unlawful detention
by pleading in paragraph 5.1:
“
As
a result of the conduct by the members of the South African Police
Services as well as the conduct of the Prosecutor amongst
others –
5.1.1 In not releasing and withdrawing charges against the
Plaintiffs; 5.1.2 In denying bail hearing or adjudication;
5.1.3 In
negligently and or intentionally proceeding with the prosecution of
charges of car theft even though they had reasons
and information to
withdraw the charges and or release Plaintiffs at an earlier stage
alternatively prior to the Court appearance.”
The
respondent denied these paragraphs in its amended plea and put the
appellants as plaintiffs to the proof thereof.
3.9.
From
the pleading of the appellants, it is evident that they relied upon
the conduct of the South African Police Services, the prosecutor
“amongst others” to found their cause of action for
unlawful detention. This is at odds with the abandonment of the
action against the Minister of Justice. Amongst others is too vague
to found any cause of action, so like in De Klerk’s case
[11]
in the Constitutional Court, the appellants bore the onus of proof on
a balance of probability to establish that the police conduct
led to
them being unlawfully detained for a further period following their
court appearance.
3.10.
Constable Sekgobela as the arresting
officer had nothing further to do with the case after booking the
appellants and Mr Nhleko
and another in at the police station on 29
July 2011. He was not the investigating officer and played no further
part in an identity
parade which was held on Saturday 30 July 2011
and the taking of statements from other suspects and the court
appearances. In these
circumstances, putting a statement made by Mr
Nhleko to Constable Sekgobela in cross examination was a futile
exercise.
3.11.
Thus it is the evidence of the appellants
that should be scrutinised to establish whether the onus had been
discharged. Neither
appellant was able to give an account of what the
police should have done differently to ensure their earlier release.
They merely
stated that they appeared in court and the matter was
postponed.
3.12.
The question of a failure to consider bail
for the appellants as pleaded, was an aspect that would have called
into question the
conduct of the magistrate and prosecutor on the
first court appearance on Monday 1 August 2011. These competencies
fall constitutionally
under the responsibilities of the Minister of
Justice, against whom the appellants, for reasons best known to them,
abandoned their
action.
3.13.
The
scenario is thus as described by Chief Justice Mogoeng, in De Klerk
in his minority judgment at [165]
[12]
:
“The Minister of Police should not be made to bear the
constitutional burden of the Judiciary, simply because Mr De Klerk
failed to sue the latter for the period of detention beyond the two
hours for which the Police are exclusively responsible. Nothing
stopped him from doing so. It was his own lawyers’ ineptitude
that is responsible for this failure. It is therefore not the
responsibility of a court to bend over backwards to mercifully
accommodate him at the expense of constitutional imperatives or
sound
legal principles.”
3.14.
The
majority decision in De Klerk penned by Justice Theron
[13]
,
decided the matter on the basis of legal causation and in a
concurring judgment by Justice Cameron
[14]
the matter was characterised as being about considerations of the
harm complained of, being the further detention in custody after
the
applicant’s appearance in court. The underlying right is
protected in section 12(1) (a) of the Constitution: not to be
deprived of freedom arbitrarily or without just cause. In the
particular facts of De Klerk’s case, the Constitutional Court
held that the knowledge of the investigating officer, that the
accused would be sent to a remand court and imprisoned without bail
being considered, was the factor that led the majority decision to
hold the Minister of Police liable.
3.15.
In this matter, what occurred in the
interaction, if any, between the investigating officer and the
prosecutor on 1 August 2011,
when the appellants had their first
court appearance is unknown. No transcript of the criminal
proceedings was discovered or alluded
to by the appellants, which
would assist to shed light on what documentation the prosecutor had
or did not have in his possession
as at the date of the first
appearance.
3.16.
It was contended on behalf of the
appellants on appeal, that the statement made by Mr Nhleko indicating
that he hijacked the vehicle
with one Senzo, was obtained prior to
the first court appearance of the appellants. This contentious
statement, is one of the documents
made available to the appellants’
attorney in May 2015, in reply to a pre-trial questionnaire in the
court below.
3.17.
The fact that the statement was made and
made available to the appellants’ attorney by the respondent,
does not prove the
contents of the statement as being true and
correct. There was no agreement between the parties in the trial in
the court a quo
that documents in the discovered bundles were true as
to their content. There is not even the usual agreement that the
documents
are what they purport to be unless expressly challenged.
Accordingly the content of Mr Nhleko’s statement cannot be
taken
as true.
3.18.
Even assuming in favour of the appellants
that the statement by Mr Nhleko is true, in its terms, it does not
exclude the appellants
as possible suspects in a car theft, rather
the contents merely indicate the identity of the person who
accompanied Mr Nhleko when
the vehicle was hi-jacked, namely one
Senzo. To name a co-perpetrator in a hi-jacking does not exclude the
appellants as suspects
to car theft at a later stage, it being a
continuous offence.
3.19.
In either event, no evidence was adduced by
the appellants that the police, through the actions or omissions of
the investigating
officer or otherwise, deliberately or negligently
kept the statement of Mr Nhleko from the prosecutor on the date of
the appellants
first court appearance. Perhaps the prosecutor read
the statement of Mr Nhleko and did not believe it exonerated the
appellants
or was not credible. As an appeal court, we simply don’t
know.
3.20.
The consequence of this failure to place
evidence before the trial court as to the ongoing police conduct that
caused the appellants
to remain in custody until 10 August 2011 when
the charges were withdrawn, is that the appellants have failed to
discharge the
onus of proof on a balance of probabilities that their
continued detention was unlawful.
[4]
Thus on the second aspect too, the appeal
must be dismissed.
[5]
ORDER
The appeal is dismissed
with costs.
L.
Grenfell
Acting
Judge of the High Court
Gauteng
Local Division, Johannesburg
I
agree
I.
Opperman
Judge
of the High Court
Gauteng
Local Division, Johannesburg
Appearances:
For
the Appellants :
Adv L Liphoto
Instructed
by
:
T T Hlapolosa Attorneys.
For
the respondents :
Adv NM Mtsweni
Instructed
by
:
The State Attorney
Date
of hearing
:
2 August 2021 by video-conference
Date
of judgment :
27
August 2021 - deemed date by email and uploading onto CaseLines
[1]
Langham
and another NNO v Milne NO 1961(1) SA 811 (N) at 817A-F
[2]
Phipson
8
th
Edition P673
[3]
Whitthuhn
v Road Accident Fund Case No A5046/2015 Judgment per Van der Linde J
[23] 14 September 2017
[4]
Minister
of Safety and Security v Sekhoto and another 2011(1) SACR 315 (SCA)
at [6] ; Duncan v Minister of Law and Order
1986 (1) SA 805
(A) per
Harms DP at 818 G-H
[5]
Manga
v Minister of Police Unreported Case No 16783/2011 [2015]SAGP JHC
(1915)
[6]
1988(2)
SA 654SE at 658F-H
[7]
Judgment
court a quo paragraph 44.
[8]
R
v Dhlumayo and Another 1948(2) SA 677 (A)
[9]
Mahlangu
and another v Minister of Police
[2020] ZASCA 44
(21 April 2020) per
Koen AJA [23]
[10]
Mahlangu
supra at [25]
[11]
De
Klerk v Minister of Police [2019] ZACC 32,
[12]
De
Klerk supra ft 11
[13]
De
Klerk supra
[14]
De
Klerk supra Justice Cameron para [122]