About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Mthatha
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Mthatha
>>
2021
>>
[2021] ZAECMHC 35
|
|
Kweyama v Minister of Police and Another (2891/2016) [2021] ZAECMHC 35 (7 October 2021)
IN THE HIGH COURT OF
SOUTH AFRICA
[EASTERN
CAPE LOCAL DIVISION, MTHATHA]
Not
Reportable
CASE
NO: 2891/2016
In
the matter between:
AFRICA
KWEYAMA
Plaintiff
and
MINISTER OF POLICE
1
st
Defendant
NATIONAL
DIRECTOR OF PUBLIC PROSECUTION
2
nd
Defendant
JUDGMENT
NHLANGULELA DJP
[1]
On 23 August 2016 the plaintiff instituted action proceedings against
the defendants claiming:
(a)
As against the Minister: R750 000,00 for unlawful arrest and
detention.
(b)
As against the NDPP: R250 000,00 for malicious
prosecution.
[2]
Both defendants filed notices to defend the claims.
[3]
The particulars of claim in support of the plaintiffâs claims can
be summarised in the following
terms:
3.1
Two members of the police effected arrest of the plaintiff on 07
April 2015 without a warrant
of arrest;
3.2
The plaintiff was detained in a police cell on the same day;
3.3
The detention lasted until 28 May 2015;
3.4
On 09 April 2015 the public prosecutor in the office of the NDPP,
Mthatha preferred a charge
of rape against the plaintiff;
3.5
The arrest was unlawful; and the prosecution was malicious in that
the plaintiff was released
from detention and court appearances by
reason of a decision not to prosecute the plaintiff;
3.6
In and as a result of the aforegoing events, plaintiff suffered
certain delictual damages.
[4]
In defence, the Minister pleaded that the arrest and detention were
authorised in terms of
s 40 (1)
(b)
of the CPA.
[5]
When the matter served before me for trial purposes, I was informed
that the plaintiff had
withdrawn the action against the NDPP.
The trial proceeded against the Minister only.
[6]
Mr P. Ntabende, the Detection Constable testified on behalf of the
Minister. The plaintiff
also testified.
[7]
The facts stated by the two witnesses in the witness box are common
cause, and more particularly
constitute proof on a balance of
probabilities that:
7.1
Mr Ntabende was the arresting officer. He was accompanied by
another member of the police
force when he effected the arrest;
7.2
The arresting officer was justified in arresting the plaintiff in
that:
(a)
He was called by the community members of Ngobozi Location, the place
of residence of the
plaintiff, to respond to the allegation that the
plaintiff had raped a minor girl child during the night of 07 April
2015;
7.3
The officer responded to the call by driving on a police vehicle to
Ngobozi Location where
further briefing was given to him concerning
the accusation that the plaintiff was a rapist. The mother of
the child confirmed
the report. The child was in the custody of
her mother at that time;
7.4
At all times material to the commission of rape the child and the
plaintiff resided in one
and the same house;
7.5
The plaintiff and the victim were present in the homestead when the
Officer arrived at their
place of residence.
7.6
Due to the seriousness of the offence of rape, the Officer decided to
interview the plaintiff,
who merely stated that he did not know
anything about the allegation of rape. Acting on the
information received from the community
members and mother of the
child, which implicated the plaintiff in the commission of rape, the
Officer proceeded to arrest the plaintiff
by taking him into the
police vehicle, to the Police Station and into the prison cell.
The allegation of the Officer that he
had a reasonable cause to
believe the correctness of the information he had received from the
members of the community is not disputed;
7.7
At the time of arrest, and at the Police Station, the plaintiff was
advised of his constitutional
rights, but he declined to give his own
version of events in answer to the allegation of rape. The
plaintiff informed the Officer
that he would give his version in
court through his legal representative;
7.8
The plaintiff appeared before the Magistrate for the first time on 09
April 2015. Bail
hearing was commenced with on this occasion.
That hearing was thereafter run over numerous appearances until bail
was declined.
And
on 28 May 2015 the public prosecutor declined to prosecute due to
insufficient evidence.
[8]
Based on the evidence as recounted in the preceding paragraphs, I
come to the conclusion that:
8.1
The arrest was in accordance with the provisions of sections 39 and
50 of the CPA;
8.2
the decision of the arresting Officer to arrest and detain the
plaintiff was predicated on
reasonable grounds; as is envisaged in s
40 (1)
(b)
of the CPA.
8.3
The refusal of bail has not been shown to have been motivated by
unreasonable and obstructive
conduct on the part of the Arresting
Officer. That is, the police detention and that which was
ordered by the court were lawful.
[9]
Under the circumstances, the plaintiff failed to prove that his
arrest and detention were
unlawful. That being my finding, the
Minister is not liable to compensate the plaintiff for the damages
claimed.
[10]
Therefore, I make the following order:
The plaintiffâs
claim against the first defendant (the Minister of Police) is
dismissed with costs.
Z.M. NHLANGULELA
DEPUTY JUDGE
PRESIDENT OF THE HIGH COURT
MTHATHA
Counsel for the
plaintiff :
Adv.
T.H. Melane
Instructed
by
:
MK Majavu & Ass
MTHATHA.
Counsel for the
defendant :
Adv. L.L. Sambudla
Instructed by
:
State Attorneys
MTHATHA
Heard on: 05
and 06 October 2021
Delivered
on: 07 October 2021