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[2020] ZALMPPHC 20
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Mphanama v Minister of Police and Others (411/2015) [2020] ZALMPPHC 20 (13 May 2020)
REPUBLIC OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO
PROVINCIAL DIVISION, POLOKWANE)
CASE
NO: 411/2015
In
the matter between:
ADV
AZIFANELI GEORGE MPHANAMA
PLAINTIFF
And
MINISTER
OF POLICE
FIRST DEFENDANT
CAPTAIN
SIWELE
SECOND
DEFENDANT
CONSTABLE
MAKANANISE
THIRD DEFENDANT
D/CST
PJ LEBESE
FOURTH DEFENDANT
MINISTER
OF JUSTICE AND
CORRECTIONAL
SERVICES
FIFTH DEFENDANT
WILHELM
SMIT
SIXTH DEFENDANT
NATIONAL
PROSECUTING AUTHORITY
(SPECIALISED
COMMERCIAL CRIME UNIT
SEVENTH DEFENDANT
ADV
NF DOUBADA
EIGHT DEFENDANT
JUDGMENT
KGANYAGO
J
[1]
The plaintiff who was a senior magistrate at Dzanani magistrate court
was investigated
by Magistrate Commission for alleged misconduct in
relation to his conduct when administering the estate of the late Mr
Mabirimisa.
The Anti-Corruption Unit of the South African Police
Service also investigated him for alleged corrupt activities in
relation to
the administration of the estate of the late Mr
Mabirimisa.
[2]
On the 23
rd
February 2015 the second and third defendant met the plaintiff at his
former attorneys’ offices in order to serve him with
criminal
summons (J175). As per J175 the plaintiff was supposed to appear in
court on the 27
th
March 2015. According to the second and third defendants, the
plaintiff refused to accept the J175 and there was therefore no
proper service on him. However, the second and third defendants state
that despite there being no proper service, they left a copy
of the
J175 with the plaintiff on the instruction of the eighth defendant.
On the front page of the J175, the plaintiff wrote “noted
and
representation to follow,” and thereafter signed the front page
and also wrote a date.
[3]
The plaintiff alleges that there was a proper service as he had
accepted the summons
and on top of the front page wrote noted and
representation to follow and thereafter also signed on the top of the
front page.
On the bottom corner of the second page he also appended
his signature and also wrote a date. The plaintiff alleges that he
was
aware that he was supposed to appear in court on the 27
th
March 2015.
[4]
The third and eighth defendants were not satisfied with the manner in
which the J175 was
served on the plaintiff, and decided to apply for
a warrant of arrest in terms of section 43 of the Criminal Procedure
Act 51 of
1977 (the CPA) on the 13
th
March 2015. On the 16 March 2015 the second defendant approached the
sixth defendant with the application in terms of section 43
of the
CPA. The sixth defendant granted the warrant of arrest on the 16
th
March 2015. On the same date the second, third and fourth defendants
arrested the plaintiff in terms of the warrant of arrest.
The
plaintiff was released the same day on police bail and was requested
to appear in court on the 17
th
March 2015. However, on the 17
th
March 2015, the court officials at Louis Trichardt magistrate court
for some reasons did not place the matter on the roll. The
plaintiff
ended up making his first appearance in court on the 27
th
March 2015.
[5]
The plaintiff has issued summons against the defendants alleging that
the issuing,
authorization, signing and execution of the warrant of
arrest was premature, illegal, unlawful and invalid as it was
obtained with
malice since the plaintiff was already served with the
J175 and was warned to appear in court on the 27
th
March 2015. The defendants in their plea have stated that there was
no proper service of the criminal summons and therefore the
J175
could not be filed with the clerk of the court at Magistrate Court
Louis Trichardt as there was no proof of service to justify
the
authorization of a warrant of arrest in case the plaintiff failed to
appear in court on the 27
th
March 2015. With regard to the sixth defendant, they have pleaded
that he issued the warrant of arrest in his official capacity
as a
magistrate after he was informed that the plaintiff has refused to
accept the J175 on the 23
rd
February 2015.
[6]
The parties in their pre-trial minutes have agreed to separate the
merits and quantum, and
to proceed with the issue of merits first.
The parties have also agreed that the plaintiff bears the duty to
begin and also the
general onus of proof.
[7]
The plaintiff testified and stated that currently he is a practicing
advocate. On
the 23
rd
February 2015 he was on duty as a senior magistrate. As he was
driving to Thohoyandou he got a call from the second defendant
informing him that he wanted to serve him with a certain document.
They agreed to meet at Anton Ramaano Attorneys who are his former
attorneys. At the attorneys’ office he met with the second and
third defendants who served him with a J175, criminal summons.
He
accepted the J175 and on top of the first page he wrote “noted
and representation to follow.” He also signed and
wrote the
date on top the page and at the bottom of the second page he signed
and also wrote a date.
[8]
At the time he was served with the J175 he was heading Dzanani
Magistrate Court. He
was served with the J175 after the Magistrate
Commission has failed to subject him to an alleged misconduct enquiry
regarding the
same issues he was now being criminally charged. He
felt that he had enough of it, and on the 24
th
February 2015 he tendered his registration as a magistrate.
[9]
The charges which he was facing related to alleged corruption and
fraud. As per the
J175 he was supposed to appear in court on the 27
th
March 2015.
[10].
On the 16
th
March 2015 he had booked in a Lodge around Polokwane as he was
appointed as an assessor at Polokwane High Court. Around 18h00 whilst
at the lodge he was arrested by the second, third and fourth
defendants based on a warrant of arrest that has been authorized by
the sixth defendant. When he asked them why he was arrested as he was
supposed to appear in court on the 27
th
March 2015, he was told that the warrant has been signed by the
magistrate.
[11]
He co-operated with them and was taken to Louis Trichardt Police
Station where he was formally
charged and released on R5000.00 police
bail and required to appear in court on the 17
th
March 2015. After paying bail he was taken back to the lodge in
Polokwane where he had booked.
[12]
On the 17
th
March 2015 he went to Louis Trichardt Magistrate court in order to
appear in court. His matter was never enrolled to be heard.
He heard
the senior prosecutor Mr Mostert and regional court prosecutor Ms
Hilke telling the third defendant that his matter will
not be
enrolled for the 17
th
March 2015 as he was supposed to appear in court on the 27
th
March 2015. Mr Mostert then told him to leave as they did not want to
delay him any further. He left and went back to Polokwane
to continue
with his work.
[13]
On the 27
th
March 2015 he made his first appearance in court. He was charged
together with the other two accused. He was accused number 1.
[14]
The plaintiff was crossed examined and he conceded that the
application to obtain his warrant
of arrest was in order, but
that the sixth defendant should have requested to see the J175 before
he authorized the warrant.
He disputed that the sixth
defendant has executed his judicial officer’s duties in a
reasonable manner. He conceded that
the sixth defendant when he
authorized the warrant, he was executing his official functions. The
plaintiff insisted that he had
signed on the reverse side of the
J175. He denied that he was rude and shouting at the second, third
and eighth defendants telling
them that those were junk charges,
unconstitutional and that he will not attend court. When shown the
original of the J175 which
was not signed on the reserve side, he
stated that it is for the first time he sees it and does not know
where it comes from.
That concluded the evidence of the plaintiff and
he closed his case.
[15]
The defendants called Nompho Frans Doubada (eighth defendant) as its
first witness. He testified
that he is the deputy director of public
prosecutions attached to the National Director of Public
Prosecutions. He was the dedicated
prosecutor in the plaintiff’s
criminal case since there was no prosecutor in Limpopo who had the
appetite to prosecute him.
He guided the investigations from his
office. After the investigations were finalized he found that there
was a prima facie case
against the plaintiff and took a decision to
charge him.
[16]
The plaintiff was facing a Schedule 5 offence. Out of respect for him
as a senior magistrate,
he and the investigators came to an agreement
that the plaintiff should be summoned to appear in court. He had also
prepared an
annexure containing the charges which were attached to
the J175.
[17]
On the 23
rd
February 2015 whilst in his office in Pretoria, he was phoned by the
second defendant informing him that the plaintiff was refusing
to
accept the J175. He instructed the second defendant to go back and
leave a copy of the J175 with the plaintiff. Later he received
a call
from the second defendant telling him the plaintiff wanted to talk to
him. The plaintiff told him that the charges were
unconstitutional
and that he should have approached him first to hear his side of the
story since he was not being charged for
stealing a goat. He further
told him that the J175 was based on junk charges and that he will not
appear in court on the 27
th
March 2015. He told the plaintiff that if he was having issues with
the charges he can make a representation to the prosecutor
at the
DPP’s office and also fax him (witness) a copy of the
representation. He gave the plaintiff his direct fax number.
The
plaintiff told him that he will make the representation the following
day on the 24
th
February 2015.
[18]
The plaintiff did not make any representation, and the fact that the
J175 was not properly served,
and that the 27
th
March 2015 was approaching, as a team they decided to apply for a
warrant of arrest against the plaintiff. On the 13
th
March 2015 the third defendant brought to him the application for a
warrant of arrest (J50), and he signed it. He also prepared
the
charges. After signing the J50 he gave it to the second defendant
together with the charges for their further attention.
[19]
The plaintiff was supposed to make his first appearance in court on
the 17
th
March 2015, however, the matter was not placed on the roll for that
date. The plaintiff and other co-accused made their first appearance
in court on the 27
th
March 2015. On arrival in court on the 27
th
March 2015, he found that again the matter was not placed on the
roll. He went to the senior prosecutor and regional court prosecutor
and found that they were hostile towards him. They told him that they
did not want to be involved in the matter as they did not
want to
lose their pension funds. He had to go to the clerk of the court and
prepare a charge sheet (J15). The plaintiff and the
other co-accused
were released on bail. He is the one who prosecuted the matter in the
High Court up to its finality.
[20]
The witness was cross examined and he stated that on the 23
rd
February 2015 when he talked to the plaintiff on the cellphone, the
plaintiff was abusive and used vulgar words towards him. He
also
stated that he did not know of any reason to fabricate a story
against the plaintiff. He stated that the reason why he signed
the
J50 was that the plaintiff has said that he will not accept junk
charges, has refused to accept the J175 and that his main
reason was
to secure the plaintiff’s attendance in court. He stated that
the J175 was not properly served, as page 2 of the
J175 was supposed
to have been completed by the investigating officer but was not
completed, and that it will only be completed
after service has been
effected. He further stated that the plaintiff did not sign page 2 of
the J175 where it state “signature
of recipient”.
[21]
The defendants called Magezi Freddy Siwele as their second witness.
He testified that during
2015, he was attached to the hawks in
Polokwane as commander and the third defendant was reporting to him.
Normally it is the duty
of the investigating officer to serve the
J175. In this case as the J175 was supposed to be served on a senior
magistrate his major
general requested him to effect the service of
the J175 on the plaintiff.
[22]
He and the third defendant arranged with the plaintiff to meet with
him at his attorneys’
offices in Thohoyandou. They met in the
boardroom of Anton Ramaano’s office. The plaintiff was not
happy with being served
with J175. He asked how could he be served
with the J175 before they could hear his side of the story. He was
not co-operating
and he told them that he was not going to accept
receipt of the J175 as those were junk charges. He was furious. There
was also
a confrontation between the plaintiff and the third
defendant. Seeing that the situation was getting out of hand, he
called the
third defendant and told him that they must leave. They
left without serving the J175.
[23]
As they were in the parking lot, he phoned the eighth defendant to
inform him that the plaintiff
had refused to accept the J175. The
eighth defendant advised them to go back and leave a copy of the J175
with the plaintiff. The
plaintiff requested to speak to the eighth
defendant. He (witness) phoned the eighth defendant with his
cellphone and gave it to
the plaintiff to talk to him. As they were
talking, he could hear the plaintiff telling the eighth defendant
that he is not going
to receive the J175 as they decided to charge
him without hearing his side of the story. He was also threatening to
sue the State
if they proceeded with the charges against him. At the
end there was an agreement that he will make a representation. Then
the
plaintiff wrote on the first page of the J175 at the top “noted
and representation to follow”. They took their copy
and left
the plaintiff with his copy. The page of the J175 that was written
“noted and representation to follow”, was
not signed
where he was supposed to acknowledge receipt of the J175.
[24] One
day whilst sitting in his office he received a telephone call from
Anthon Raamano informing
him that the plaintiff will not attend court
on the 27
th
March 2015 as he was sitting as an assessor in
the Polokwane High Court. He gave this information to the eighth
defendant. The
eight defendant requested him to come to his office
together with the docket. He sent the third defendant to the eighth
defendant’s
office.
[25]
When the third defendant came back from the eighth defendant, he
(third defendant) gave him the
J50 application. He took the J50
application to Thohoyandou Magistrate Court to be authorized. At
Thohoyandou Magistrate Court
he was directed to the sixth defendant.
The sixth defendant requested him to file an affidavit detailing the
circumstances which
led to them applying for a warrant of arrest
against the plaintiff. He did that and the sixth defendant authorized
the warrant
of arrest against the plaintiff on the 16
th
March 2015.
[26]
On the same date on which the warrant was authorized, he, the third
and fourth defendants executed
the warrant. The plaintiff was
arrested at a lodge in Polokwane. From there he was taken to Louis
Trichardt Police station where
he was charged and released on police
bail of R5000-00. He was informed to appear in court on the 17
th
March 2015. After that he was taken back to the lodge where he was
arrested.
[27]
The witness was cross examined and he stated that page 2 of the J175
is completed only after
the suspect had acknowledged receipt of the
J175. He denied that by writing the words “noted and
representation to follow”
there was sufficient compliance with
acknowledgment of receipt of the J175.
[28]
Rudzani Ephraim Makhananisa testified as the defendants third
witness. He testified that he was the
investigating officer in the
criminal case against the plaintiff. After his investigations were
finalized he handed over the docket
to the eighth defendant. The
eighth defendant told him that since the plaintiff was a senior
magistrate, they will have to secure
his attendance in court through
the J175. He and the second defendant arranged to meet with the
plaintiff at his attorneys’
office in Thohoyandou in order to
effect the service of the J175.
[29]
They met the plaintiff together with his attorney Anton Ramaano at
the attorneys’ office.
The second defendant explained to the
plaintiff the purpose of their visit. The plaintiffs started swearing
at them telling them
that he will not appear in court and that those
were junk charges and were also unconstitutional. He accused them of
doing things
behind his back and why he was interviewing witnesses
without consulting him. The plaintiff told him that he (witness) was
having
a vendetta against him. He told the plaintiff that he was
having nothing against him and did not need his permission to
interview
the witnesses.
[30]
The second defendant intervened and told them that they are not there
to fight but to serve the
J175. He again told them that those were
junk charges. They could not serve the plaintiff with the J175 and
the second defendant
called him and they went out of the boardroom.
As they were outside, the second defendant phoned the eighth
defendant and reported
to him that they were unable to serve the
J175. The eighth defendant told them to go back and leave a copy of
the J175 with the
plaintiff. They went back and gave the plaintiff a
copy of the J175. After giving the plaintiff his copy, the second
defendant
phoned the eighth defendant on his cell phone and
thereafter gave it to the plaintiff to talk to the eighth defendant.
[31]
When the plaintiff was talking to the eighth defendant he was
shouting at him and telling him
that he will not sign for the J175,
and that those were junk charges and unconstitutional. He further
told the eighth defendant
that he was unprofessional and will not
appear in court. He then saw the plaintiff writing something on top
of the first page of
the J175. He was not present when the plaintiff
wrote a note that appears at the bottom of the next page. The
plaintiff did not
sign where he was supposed to sign the J175 as a
recipient. They then took their copy and left.
[32]
After the plaintiff has failed to make representation to the DPP, he
took the docket to the eighth
defendant in Pretoria. Whilst in
Pretoria he completed the J50 application and gave it to the eighth
defendant for signing. After
the J50 was signed by the eighth
defendant, he came with it back to Polokwane and handed it to the
second defendant for his further
attention. He did not go with the
second defendant to Thohoyandou to apply for the authorization of the
warrant of arrest against
the plaintiff.
[33]
After the second defendant had obtained the warrant of arrest, he
came back to Polokwane and
asked him and the fourth defendant to
accompany him to a lodge in Polokwane where the plaintiff has booked
in. The three of them
went to that lodge and arrested the plaintiff.
After the plaintiff was arrested he was taken to Louis Trichardt
police station
where he formally charged him. After he was charged,
they released the plaintiff on R5000-00 police bail and took him back
to the
lodge where he was arrested. The plaintiff was informed to
appear in court on the 17
th
March 2015.
[34]
On the 17
th
March 2015 he went to Louis Trichardt magistrate court where he found
the plaintiff together with the prosecutor Ms Hilke van Rensburg.
Ms
Hilke was negative towards him, and she refused to place the matter
on the roll saying the charges were unconstitutional. He
and
constable Mongwane went to the court manager for assistance. The
court manager told them that he was willing to assist them,
but that
if the prosecutor was refusing to enroll the matter, there was
nothing he could do. The plaintiff was shouting at them,
telling them
that they were unprofessional. They then left and contacted the
eighth defendant in order to update him about what
transpired at
court.
[35]
The witness was cross examined and was asked why they did not
complete page 2 of the J175 after
the plaintiff had made notes on the
front page. His answer was that they could not have completed page 2
as the J175 was not properly
signed by the plaintiff.
[36]
Willem Jacobus Smith (sixth defendant) was called as the defendants
fourth and last witness.
He testified that on the 16
th
March 2015 he was an additional magistrate at Thohoyandou Magistrate
Court. He is the one who authorized the warrant of arrest
against the
plaintiff.
[37]
On the 16
th
March 2015 he was approached by the second defendant who wanted to
apply for a warrant of arrest against the plaintiff. The second
defendant informed him that although the plaintiff was facing a
Schedule 5 offence, initially they wanted to secure his attendance
in
court through the J175 but had refused to accept it. He then
requested the second defendant to prepare an affidavit explaining
the
circumstances relating to the J175. After the second defendant had
prepared an affidavit, he perused the it and found the J50
application to be in compliance with section 43 of the CPA. He then
authorized the warrant of arrest against the plaintiff. He
told the
second defendant to also go and serve the other two suspects with the
J175 before he could apply for a warrant of arrest
against them. The
witness further stated that it was not necessary for him to inspect
the J175 which was supposed to have been
served on the plaintiff as
the second defendant had deposed an affidavit to that effect. The
second defendant never came back to
him in relation to obtaining
warrants of arrest against the other two suspects.
[38]
The witness was cross examined and nothing new came out. That
concluded the evidence of the defendants.
Both parties submitted
their closing address.
[39]
It is trite that a person’s liberty, personality and dignity
are usually compromised by
wrongful and malicious arrest. An arrest
or detention is prima facie wrongful and unlawful and it is for the
defendant to allege
and prove the lawfulness of the arrest or
detention once admitted (See
Lombo
v African National Congress 2002(5) SA 668 (SCA)).
[40] In
the case at hand the plaintiff was arrested based on a warrant of
arrest that was authorized
by the sixth defendant. It is trite that
an arrest pursuant to a warrant is prima facie lawful. The onus of
proving the wrongfulness
of the arrest rest on the plaintiff by
showing that the warrant was irregular.
[41]
The plaintiff was facing a Schedule 5 offence, which under normal
circumstances he should have
been arrested and had to show that the
interest of justice permits his release on bail. However, in this
case, the eighth defendant
took into consideration that the plaintiff
was a senior magistrate, and that it will make no harm if his
attendance in court was
secured by way of J175. As per the J175, the
plaintiff was supposed to appear in court on the 27
th
March 2015. The defendant alleges that there was no proper service of
the J175 hence they opted to apply for a warrant of arrest
in order
to secure the attendance of the plaintiff in court. On the other
hand, the plaintiff alleges that there was proper service
of the J175
and he was aware of his appearance date, and that the defendant had
prematurely applied for the warrant of arrest.
[42]
The first question which this court must determine is whether the
J175 was properly served on
the plaintiff. The purpose of having a
properly served J175 is to enable the court to issue a warrant of
arrest in case the accused
fails to appear in court on the scheduled
date. In
Minister
of Police v
Goldschagg
1981 (1) SA 37
(A)
the court held that a magistrate is entitled to satisfy himself on
the basis of the return of service of the summons that the respondent
had been properly summoned before exercising his discretion in
issuing a warrant for the arrest of the respondent on his
non-appearance.
It therefore follows that if there was no proper
service of the J175, a warrant of arrest will not be authorized
against an accused
who fails to appear in court despite being served
with the J175.
[43]
For a properly served J175, the recipient must sign on the second
page on the space provided
and also insert his/her full names,
thereafter the empowered officer must sign on the space provided and
also state his /her full
names and capacity. The time, date and place
where the J175 was served must be inserted. The person who served the
J175 must also
complete a certificate stating the manner of service,
whether it was personal service or another form of service. In this
case
page 2 of the J175 is blank, and all these prerequisites I have
referred above have not been inserted.
[44]
The plaintiff on the front page of the J175 has written “noted
representation to follow’’
and thereafter signed and also
put a date. He also signed on the second page at the bottom and also
inserted a date. The question
is whether this was sufficient to be
regarded as proper service. In my view this has some short comings.
Firstly, the plaintiff
has not inserted his full names. Nobody will
know whose signature appears on that document. Secondly, he had
failed to insert the
place where it was served, thirdly he had failed
to insert the time it was served, fourthly, the names of the officer
who served
it has not been inserted, and fifthly, the method of
service has not been inserted.
[45]
The plaintiff is not just an ordinary lay person. On that particular
date, he was still a senior magistrate
who had issued several
warrants of arrest for accused who failed to appear in court despite
been served with the J175. He therefore
knew what was required to
have a proper service of the J175. With all these shortcomings that I
have listed, it was going to be
difficult is not impossible to
authorize a warrant of arrest against the plaintiff had he failed to
appear in court on the 27
th
March 2015. I therefore agree with counsel for the defendant that the
J175 was not properly served on the plaintiff.
[46]
Since there was no proper service of the J175, the defendants were
therefore justified in resorting
to other methods of securing the
plaintiff’s attendance in court. In this case they opted for a
warrant of arrest. The manner
in which the warrant of arrest was
obtained against the plaintiff cannot be faulted. The plaintiff has
failed to show any irregularity
in the manner in which the warrant
was obtained. What he is complaining about is what he would have done
had the application for
authorization of the warrant was brought
before him. Failure to do what he would have done does not amount to
an irregularity.
The sixth defendant was guided by section 43 of the
CPA and was satisfied that the application met the prerequisites as
stated
in that section. Even the plaintiff himself had conceded that
the application itself cannot be faulted, but that the sixth
defendant
should have gone an extra mile of checking the J175 itself.
The sixth defendant testified that he was satisfied with the
affidavit
that was deposed by the second defendant as it covered
everything. The sixth defendant cannot be faulted for his approach
and not
following what the plaintiff would have done. This court is
therefore satisfied that the sixth defendant has lawfully authorized
the warrant of arrest against the plaintiff.
[47]
After the plaintiff was arrested based on the warrant of arrest, he
was well aware that he was
facing Schedule 5 offences. Despite the
plaintiff having not co-operated with the second and third defendants
on their first encounter
with him, they proceeded to give him a
police bail whilst they were not supposed to have done so. If they
had malicious intentions,
they would have locked him up and let him
apply for bail in court. It is clear that their interest was to
secure his attendance
in court and nothing else. They were not
influenced by what had transpired on their first encounter with the
plaintiff. The arrest
of the plaintiff on the 16
th
March 2015 was based on the warrant of arrest that was lawful. It
therefore follows that the plaintiff’s action stands to
be
dismissed.
[48]
In the result I make the following order
48.1 The plaintiff’s action is
dismissed with costs.
MF
KGANYAGO J
JUDGE OF THE HIGH COURT OF
SOUTH AFRICA, LIMPOPO
DIVISION, POLOKWANE
Appearances
For
the Plaintiff
: Adv EK Matlou
Instructed
by
: TN Ramashia
Attorneys
Telephone
Number
:
015 962 1780
For
the Defendants
:
Adv Salie Joubert SC
Instructed
by
: State
Attorney Polokwane
Telephone
numbers
:
015 230 6317
Date
of hearing
: 28
th
February 2020
Date
of Judgment
: 13
th
May 2020