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[2019] ZAGPPHC 10
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Moloi v Minister of Police (83749/15) [2019] ZAGPPHC 10 (21 January 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
(1)
NOT
REPORTABLE.
(2)
NOT
OF INTEREST TO OTHER JUDGES.
(3)
REVISED.
Case
No. 83749/15
In
the matter between:
OSCAR
MOLOI
PLAINTIFF
and
MINISTER
OF POLICE
DEFENDANT
Coram:
Munzhelele
AJ
Heard:
24 October 2018
Delivered:
21 January 2019
JUDGEMENT
MUNZHELELE
AJ
[1]
The
plaintiff, Oscar Moloi instituted an action against the defendant,
Minister of Police claiming payment of damages on the basis
that he
had been unlawfully assaulted, arrested and detained. The damages
claimed by the plaintiff are for an amount of R600 000
(six hundred
thousand rand) made up as follows:
Past
medical expenses
: R50 000.00
Future
medical expenses
: R50
000.00
Loss
of earnings past and future
: R100 000.00
General
damages
: R400 000.00
Background
facts
[2]
In
his particulars of claim the plaintiff alleges that on 13 February
2013 at Hammanskraal, South African Police Detective Warrant
Officer
Rachele Emmanuel "Detective Rachele", stationed at
Bela-Bela assaulted, arrested and detained him unlawfully
for seven
days. It is common cause that Detective Rachele was acting within the
course and scope of his employment when he arrested
and detained the
plaintiff.
[3]
The
defendant's defence in the plea is that the plaintiff was lawfully
arrested and detained by Detective Rachele. The defendant
further
denies the assault on the plaintiff by the police. Detective Rachele
avers that the plaintiff was arrested without a warrant
as defined in
terms of
section
40
of
the
Criminal
Procedure Act 51 of 1977
on
reasonable suspicion that the plaintiff has committed schedule 1
offence. Defendant further denies that he is liable to the plaintiff
as claimed. He submits that the plaintiff's claim should be
dismissed.
Evidence
[4]
Drivers
along N1 and R101 were getting hijacked and robbed every time during
the night. Several dockets were opened or investigations
including CR
157/2/2013 were a motor vehicle Mercedes Benz was hijacked, cell
phone and eds were robbed. Information was received
on the 12
February 2013 by Detective Rachele about the people who might be
involved in the R101 robberies. They went to Themba
and interviewed
Mohalene Nico and Christopher Mudau. The two led the police to Fanie
Snyman Lebelo who stays at Brazaville Attridgeville.
Fanie Snyman
informed the police that Oscar was involved in the car hijack. Oscar
was followed at Hammanskraal Thamboville where
he was with his
girlfriend.
[5]
Plaintiff
was found in a room together with his girlfriend. In this room a cell
phone, eds and a bag where on the table. The police
took the items to
the police station. These recovered items were later identified by
the complainant in the case of robbery. Detective
Rachele then
arrested the plaintiff and detained him at Bela-Bela police holding
cells. Detective Rachele denied assaulting the
plaintiff and his
girlfriend on that day. During cross examination of Detective Rachele
a J88 document was produced as evidence
to prove that plaintiff was
examined by the doctor and that he was injured. The Detective Rachele
denied that he assaulted the
plaintiff.
[6]
Shumani
Mackson Galane is the police officer who charged the plaintiff on the
14 February 2013. He alleged that he did not see any
injuries on the
body of the plaintiff. He testified that plaintiff did not make any
complaint to him regarding the assault by the
police.·
[7]
Richard
Karabo Manamela was the investigating officer of this case. He
testified that the docket did not contain any complaint by
the
plaintiff of the assault by the police. The plaintiff was released
because the fingerprints uplifted by the police did not
match the
plaintiffs fingerprints.
[8]
The
Plaintiff, Oscar Mooketsi Moloi confirmed thflt he was arrested on
the 13 February 2013 without a warrant while he was at Hammanskraal,
Thamboville with his girlfriend. The arrest of the plaintiff occurred
during the night. The plaintiff testified that when the police
arrived, they informed him of the reasons why they were looking for
him. Plaintiff denied that he committed the robberies and the
hijack
of the cars on the NI and RI01. Plaintiff testified that the police
started to assault him with firearms and fist blows
on the shoulder
and also on the stomach because he denied having committed the
offences alleged. He was injured as a result of
the assault. They
took him together with his girlfriend to the police station at
Bela-Bela. The plaintiff testified that they assaulted
him again at
the police station. He was taken to the hospital after a lapse of
three to four days while detained at the police
holding cells.
Plaintiff denied that there were any items which were found at the
room. He alleges that at the police station the
police forced him to
sign for those items and he refused.
[9]
During
cross examination of the plaintiff it came to light that there were
some admissions which he made to the police captain which
were
reduced into writing. On the statement he admitted having committed
the robbery and narrated the modus operandi which they
were using in
order to hijack and rob these people.
[10]
Kedibone
Anna Dijana confirmed that plaintiff was her boyfriend and they had a
child together. On the night of the arrest she confirmed
that she was
in the company of the plaintiff. She corroborated the evidence of the
plaintiff regarding the assault. She also said
that the police also
assaulted her with an open hand. However, there were some
contradictions regarding the assault as to how many
police assaulted
him. And where was the plaintiff assaulted. During cross examination
she was confronted with her admission of
the offence which was
occurring along the R101. She alleged that she made the admissions
because she was forced by the police.
Arguments
by both parties
[11]
Advocate
F.P.W. Modjadji, argued on behalf of the defendant that the police
and in particular Detective Rachele arrest plaintiff
based on a
reasonable suspicion when he found stolen items at the room where
plaintiff was. Counsel further argued that because
of such reasonable
suspicion then the arrest became lawful in the circumstance. Counsel
argued further that the plaintiff failed
to prove assault on him by
the police because his evidence and the evidence of his witness
contradicted each other. Further that
the J88 was a fabrication.
Counsel argued that the plaintiff and his witness were not credible
witnesses as such their evidence
is unreliable.
[12]
On
the other hand advocate M.M.C De Klerk argued on behalf of the
plaintiff that the defendants did not cross examine plaintiff
on the
issue of the cell phone and eds and the bag which was found with him.
Counsel further argued that the defendant did not
form the required
suspicion before arrest. Further the defendant arrested the plaintiff
based on the stolen goods. The counsel
argued that plaintiff has
proved through evidence of the J88 that the plaintiff was assaulted.
The plaintiff and his witness testified
that they were assaulted by
the police. Counsel further argued that the defendant should be held
liable for damages occasioned
by the assault on the plaintiff by the
police and the resultant arrest and detention.
Issue
[13]
The
issue to be decided is whether or not Detective Rachele had a
reasonable suspicion that the plaintiff had committed the offence
of
armed robbery and also whether he was justified to arrest the
plaintiff without a warrant of arrest. Third issue is whether
the
plaintiff was assaulted during the arrest and detention by the
police.
Unlawful
arrest and the required suspicion
[14]
In
this case, it was common cause that the arresting officer was
Detective Rachele together with his Task team. It was also common
cause that he arrested the plaintiff without warrant. If Detective
Rachele held a suspicion when arresting plaintiff then the arrest
would be lawful by reason of the provisions of
section
40(1)
(b)
of
the
Criminal
Procedure Act 51 of 1977
.
In
Shabaan
Bin Hussein and Others
v
Chong
Fook Kam & another
[1969]
3 All ER 1627
it
was held that a 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'. (See also Woji v
Minister
of Police
[2014]
ZASCA 108
;
2015
(1) SACR 409
(SCA).
[15]
It
is not clear when did the suspicion by Detective Rachele arose,
because his testimony is that, he saw the cell phone on the table
as
well as the bag containing the eds which were stolen items and then
arrested plaintiff Detective Rachele should have ascertained
through
questions to the plaintiff in order to find if plaintiff could give
account of such possession of the cell phone, bag and
eds. If he
fails to give an account of such possession then he will be suspected
of having stolen the said items and therefore
lawfully arrested.
[16]
The
onus to proof the lawfulness of the arrest, rest on the defendant.
The defendant should also prove that arrest was based on
reasonable
grounds. Suspicion is reasonably held if, on an objective approach,
the arresting officer has reasonable grounds for
his suspicion
(see
Duncan
v Minister of Law and Order
1986
(2) SA 805
(A)
at 814.) The defendant failed to show the reasonableness of their
suspicion if they indeed had any suspicion at all. Because
of their
failure to prove the suspicion which is a requirement in terms
of
section
40
of
the
Criminal
Procedure Act 51 of
1977
therefore
their arrest became unlawful.
[17]
Having
failed to establish the jurisdictional facts justifying the arrest
the resultant detention became unlawful in this circumstance.
I am
persuaded that the plaintiff has made out a case on merits regarding
unlawful arrest and detention and the defendant is liable
to pay
proved damages suffered by the plaintiff consequent to unlawful
arrest and detention.
Assault
of the plaintiff.
[18]
Detective
Rachele denied the assault on the plaintiff. Captain Galane denied
seeing any injuries on the plaintiff. Captain Galane
further denied
that plaintiff never complained to him of any assault or injuries.
Investigating officer Manamela testified that
he read the docket
before he could proceed to take any further step on it but could not
see any recording of the plaintiffs complaint
nor any instructions
from the prosecution or magistrate regarding plaintiff's assault or
injuries. He also did not know about the
J88. The defendant argued
that the J88 was a fabrication. Plaintiff alleged that he was
assaulted by the police in the presents
of Kedibone.
[19]
There
are indeed contradictions regarding the assault. Kedibone testified
that plaintiff was assaulted by two police while another
police was
holding his neck. Plaintiff testified that four police assaulted him
interchangeably. The plaintiff had a duty to prove
the assault by the
police. Given the fact that there are irreconcilable versions between
the plaintiff and defence the following
principles laid down
in
Stellenbosch
Farmers' Winery Group Ltd
&
Another
v
Martell
ET Cie and Others
2003
(1) SA 11
(SCA)
Nienaber JA should be followed were it was stated that:
'To
come to a conclusion on the disputed issues a court must make
findings on (a) the credibility of the various factual witnesses;
(b)
their reliability; and (c) the probabilities'.
[20]
It
is already clear that the credibility of the plaintiff and his
witness regarding the assault is tainted because of their
contradictions.
If the assault was perpetrated by four police
officers in each other's presents, Kedibone would have seen four
police assaulting
plaintiff. Nature of this contradiction affects the
credibility of the plaintiff and his witness. This sort of
contradiction is
not expected from the witnesses as they had ample
time with the police before they were taken to the police station.
The plaintiff
and his witness are found to be unreliable on this
material issue. The plaintiff failed on this aspect to prove on a
balance of
probabilities that indeed he was assaulted by police with
certainty. The plaintiffs evidence of assault by the police is
rejected.
Court accepts the version of the police that they did not
assault the plaintiff.
[21]
I
accordingly make the following order:
1.
Judgement
is granted in favour of the plaintiff for unlawful arrest and
detention only.
2.
Plaintiffs
claim based on assault is dismissed.
3.
The
defendant is ordered to pay costs on party and party scale.
M.M.
Munzhelele
Acting
Judge of The High Court
PRETORIA
Appearances:
For
the plaintiff
Advocate M.M.C de Klerk
Instructed
by: V Rea and Associates.
For
the defendant: Advocate F.P.W Modjadji
Instructed
by: State Attorney PRETORIA