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[2019] ZALMPPHC 60
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Madiba v Minister of Police (HCA 03/2019) [2019] ZALMPPHC 60 (12 December 2019)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO
DIVISION, POLOKWANE)
(1)
REPORTABLE:
YES
/NO
(2)
OF
INTEREST TO OTHER JUDGES:
YES
/NO
(3)
REVISED
CASE NO: HCA 03/2019
12/12/2019
In
the matter between:
NAKAMPE
TRACY MADIBA
APPELLANT
and
MINISTER
OF
POLICE
RESPONDENT
JUDGMENT
MAKGOBA
JP
[1]
This
is an appeal against the judgment and order of the Magistrate Court
of the district of Letaba held at Ga - Kgapane. The Appellant
had
instituted action against the Respondent in the Magistrate Court for
damages arising out of an alleged unlawful arrest and
detention by
members of the South African Police Service. The Appellant’s
claim against the Respondent was dismissed with
costs; hence this
appeal.
[2]
The
Appellant's version is that his arrest and subsequent detention was
unlawful. He was arrested and detained at about 00:45 and
released at
about 10:50. He spent approximately 10 hours in the police cells. The
Respondent’s version is that the Appellant
was lawfully
arrested by members of the Respondent who suspected him of having
committed an offence of murder and that the Respondent's
servants
were acting in terms of section 40(1)(b) of the Criminal Procedure
Act 51 of 1977 ("the CPA").
[3]
It
is common cause that the Appellant was indeed arrested by members and
servants of the Respondent and detained as stated herein
above. It is
further common cause that the Appellant was arrested and detained
without a warrant.
The issue in
this appeal is therefore whether the arrest was lawful or not, or
whether the Court a
quo
was
correct in finding that there was a reasonable suspicion that the
Appellant has committed an offence and thereby dismissing
the action
with costs.
[4]
It
is trite that an arrest constitutes an interference with the liberty
of the individual concerned. The arrest is therefore
prima
facie
unlawful. The arrestor (the
Respondent in this case) bears the onus of justifying the arrest
.
[1]
In the present case the
Respondent bears the onus of proving that the arrest was based on
reasonable grounds.
[5]
The Respondent's only witness was Warrant Officer Mukhacani
Elias Hlungwani whose testimony is as follows:
5.1.
He is employed by the South African
Police Service with the rank of Warrant Officer and stationed at
Tzaneen Police Station. On
the 2 August_ 2016 he was a detective and
his duty was to investigate cases.
5.2.
He was the investigating officer of a
murder case at Relela Village. He had an informer who gave
information that the Appellant
was seen coming out of the deceased's
place with one Nicholus Selowa. According to the informer the
deceased was discovered dead
after the two were seen coming out of
her homestead. They received this information late at night.
5.3.
Following on the information of the
informer, they went to Appellant's homestead to arrest him. The
Appellant was found sleeping
and it was around 00:30 when he was
arrested. They arrived at Tzaneen Police Station at around 00:45 and
detained the Appellant
after he was given Notice of Rights. He acted
on a reasonable suspicion that the Appellant committed a schedule one
offence.
5.4.
As it was already in the early hours of
the morning and they were tired, they decided to detain the Appellant
and come back to interrogate
him in the morning. In the morning they
came back to work to continue with the case. The Appellant was
interrogated and as they
could not get what they were looking for it
was decided that the Appellant be released until they find something
to link him. They
could not get the clothes that the Appellant was
allegedly wearing when committing the murder.
5.5.
The Court heard that Nicholas Selowa was
successfully prosecuted for murder and sentenced to 22 years
imprisonment. According to
Hlungwani the reason Appellant was not
prosecuted is because they could not find clothes that he wore when
the murder was committed.
[6]
The
outcome of this matter turns largely on an application of the
provisions of section 40(1)(b) of the CPA to the facts of this
case.
Section 40 of the CPA grants the peace officer the power to arrest a
suspect under certain circumstances. The section provides:
" 40 Arrest
by
peace officer without warrant
(1)
A peace officer may without warrant
arrest any person-
(a)
..........
(b)
whom he reasonably
suspects of having committed an offence referred to in Schedule 1,
other than the offence of escaping from lawful
custody
."
[7]
The
jurisdictional factors that must exist before the power conferred to
a police officer by section 40 can be invoked are that:
7.1.
The
arrestor must be a peace officer;
7.2.
The
arrestor must entertain a suspicion;
7.3.
It
must be a suspicion that the arrestee committed an offence referred
to in Schedule I to the Act.
7.4.
Such
suspicion must rest on reasonable grounds.
See
Duncan v Minister of Law
and Order
[2]
.
[8]
In
Tsose v Minister of Justice &
Others
[3]
it
was held that the arrest must be with the intention of bringing the
arrestee before Court. An arrest can still take place lawfully,
where
the arrestor objectively speaking, has a reasonable
suspicion
against the suspect but has still to conduct further investigations
after the arrest but before finally deciding to charge
the arrestee.
In
Minister of
Safety and Security v Sekhoto
[4]
it was held that once the
jurisdictional facts for an arrest are present, a discretion whether
or not to arrest arises. Where the
exercise of a discretion is
questioned, the onus to establish the improper object of the arrestor
will rest on the arrestee.
[9]
The
reasonableness of the suspicion of any arresting officer acting under
section 40(1)(b) of the CPA must be approached objectively.
The
question is whether any reasonable person, confronted with the same
set of facts would form a suspicion that a person has committed
a
Schedule
I
offence or not
[5]
.
In
Minister
of Safety and Security v Linda 2014 (2) SACR 464 (GP)
the
Court said the following:
"The
question whether the suspicion of the person effecting the arrest
is
reasonable
must be approached objectively. A suspicion inherently involves an
absence of certainty or adequate proof A police officer
is not
expected to satisfy himself to the same extent
as
a
Court.
A suspicion can be reasonable despite there being insufficient
evidence for a prima facie case.
In Shabaan Bin Hussein and Others v Chong Fook
Kam and Another the Privy Council said:
"Suspicion
in its ordinary meaning is
a
state
of conjecture or surmise where
proof
is lacking. "I suspect but I cannot prove". Suspicion
arises at or near the starting point of an investigation of
which the
obtaining of prima facie proof is the end
[6]
”
[10]
In
Duncan
supra,
Van Heerden JA said the
following at page 818B:
"Hence an arrest under s
40(1)(b) of the present Act is not unlawful where the arrestor
entertains the required reasonable
suspicion but intends to make
further enquiries after the arrest before finally deciding whether to
proceed with
a
prosecution,
provided it is the intention throughout to comply with s 50 of the
Act".
[11] In the present
case it is common cause that Warrant Officer Hlungwani who arrested
the Appellant is
a peace officer. The arresting officer received
information from the informer that the Appellant was involved in the
commission
of the offence as he was seen coming out of the deceased's
homestead before she was discovered dead. With this information
Warrant
Officer Hlungwani entertained a suspicion that Appellant was
involved in the murder. The suspicion entertained by the arresting
officer was that the Appellant committed murder, a Schedule I
offence. A reasonable person in the position of Warrant Officer
Hlungwani would have suspected that the Appellant was involved in the
commission of the murder of the deceased. In the circumstances
the
suspicion by the arresting officer was reasonable.
[12] In our view the
Respondent succeeded to prove, on a balance of probabilities, that
the arrest and detention
of the Appellant was lawful. In particular,
the Respondent managed to prove all the jurisdictional facts which
need to be satisfied
before .a discretion to arrest the Appellant
could be exercised. The judgment and order of the Court a
quo
cannot be interfered with and this appeal should fail.
[13] The appeal is
accordingly dismissed with costs.
E M MAKGOBA
JUDGE
PRESIDENT OF THE
HIGH
COURT, LIMPOPO
DIVISION,
POLOKWANE
I
agree
G
SHAKOANE
ACTING
JUDGE OF THE HIGH
COURT,
LIMPOPO DIVISION,
POLOKWANE
APPEARANCES
Heard
on
: 22 November 2019
Judgment
delivered on
: 12 December 2019
For
the Applicant
: K D Mphahlele
Instructed
: T J Machete Attorneys
For
the Respondent
: DD Mtebule
Instructed
by
: State Attorney
[1]
Minister of Law and Order and Others v Hurley and Another 1986 {3)
SA 56 8 {A) at 589 D
[2]
1986 (2) SA 805
(A) at 818G-H
[3]
1951(3) SA 10 (A)
[4]
2011 (1)SA 367 (SCA)
[5]
Minister of Safety and Security v Swart
2012 (2) SACR 226
(SCA) at
232
[6]
At page 470 para [21]