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[2019] ZAGPPHC 16
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Mukwevho v Minister of Police (51292/2013) [2019] ZAGPPHC 16 (8 February 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
DELETE
WHICHEVER IS NOT APPLICABLE
(1)
REPORTABLE:
YES
/NO
(2)
OF INTEREST TO OTHER JUDGES:
YES
/NO
(3)
REVISED No
DATE:
8 February 2019……..………………………
SIGNATURE:
.…………………………………………………
Case No. 51292/2013
In the matter between:
MASINDI ALPHEUS
MUKWEVHO
PLAINTIFF
And
MINISTER OF
POLICE
DEFENDANT
JUDGMENT
MILLAR,
A J
1.
The
Plaintiff brought an action for damages against the defendant for
damages arising out of what was alleged to be his unlawful
arrest and
detention.
2.
The
parties agreed that the action proceed at this stage for the
determination of liability and in the circumstances sought an order
in terms of Rule 33(4) of the Uniform Rules separating the issue of
liability from that of the quantum of damages. I granted the
order
sought.
3.
It
was common cause that on 9 March 2012 and at Mabopane, the plaintiff
was arrested. He was arrested, without a warrant having
been first
issued and thereafter detained at the Mabopane Police Station until
his release on bail a few days later.
4.
The
defendant accepted that it bears the onus of proving that the arrest
was lawful but only if it was established that the arrest
was
effected by its employees. It raised the point that it would
establish that the arrest was not effected by its employees but
by
officers of the Tshwane Metropolitan Police.
5.
The
plaintiff was the only witness who testified at the trial. His
evidence was that on the evening of 9 March 2012 he had gone
to the
Morula Sun Casino for the evening. When he had arrived at the gate he
had been taken aside and detained. He was told that
he was being
detained because of an unpaid hotel bill – the allegation being
that he had previously stayed overnight at the
hotel and then
absconded without payment.
6.
He
was taken to a satellite police station a short distance from the
Morula Sun entrance. The officer he found behind the counter
there
spoke to him and advised him to sort the matter out and pay. The
plaintiff did not know why he had been detained or brought
to the
satellite police station. His evidence was that he did not owe
anything and so would not pay.
7.
A
while later he was taken to the Mabopane Police Station where he was
taken into custody and locked in the cells. It was only during
the
early hours of the following morning that he was approached by a
police officer who informed him that he was the investigating
officer
and told that he was under arrest.
8.
The
plaintiff was cross-examined primarily on the colours of the uniforms
of the various persons with whom he had interacted. He
was certain
that he had been detained and arrested by the police as they wore
blue uniforms – both at the satellite station
and at the
Mabopane station.
9.
After
the plaintiffs’ case was closed, the defendant placed on record
that it had no evidence available to establish the arrest
of the
plaintiff by the Tshwane Metropolitan Police and thereupon closed its
case.
10.
T
he
plaintiff was arrested without a warrant.
Section 40(1)(b)
of the
Criminal Procedure Act 51 of 1977
provides that, “a peace
officer may without warrant arrest any person whom he reasonably
suspects of having committed
an offence referred to in Schedule 1”.
11.
It
was held by the Supreme Court of Appeal in Duncan v Minister of Law
and Order
[1]
that “
The
so-called jurisdictional facts which must exist before the
power conferred by s 40(1)(b) of the present Act may be invoked,
are
as follows:
(1)
the arrestor must be a peace officer;
(2)
the arrestor must entertain a suspicion;
(3)
the suspicion must be that the suspect committed an offence
referred
to in schedule 1;
(4)
the suspicion must rest on reasonable grounds.”
12.
The
test to be applied is an objective one
[2]
and requires evidence.
13.
The
onus of proving the lawfulness of the arrest in a matter such as the
present one lies with the defendant
[3]
.
The
defendant led no evidence to establish any of the jurisdictional
facts necessary for the arrest to be rendered lawful.
14.
In
the circumstances, I find that the defendant has failed to discharge
the onus upon it and the plaintiff’s claim succeeds.
15.
It
is ordered:
15.1
The
defendant is liable for such damages as the plaintiffs may prove
arising out of their arrest and
detention on 9 March 2012;
15.2
The defendant is to pay the plaintiff’s costs of suit to date
on the scale as between party and
party.
15.3
The determination of the quantum of damages is postponed
sine die
.
A MILLAR
ACTING JUDGE OF THE HIGH COURT
GAUTENG
DIVISION, PRETORIA
HEARD
ON:
7 FEBRUARY 2019
JUDGMENT
DELIVERED ON:
7 FEBRUARY 2019
REASONS:
8 FEBRUARY 2019
COUNSEL
FOR THE PLAINTIFF:
ADV PJ COETSEE
INSTRUCTED
BY:
MAKWARELA ATTORNEYS
REFERENCE:
MR
MAKWARELA
COUNSEL
FOR THE DEFENDANT :
ADV MD SEKWAKWENG
INSTRUCTED
BY:
THE STATE ATTORNEY - PRETORIA
REFERENCE:
MR
MATUBATUBA
[1]
1986
(2) SA 805
(A) at 818 G-H
[2]
Duncan
supra at 814 D-E where it was stated “
it
seems clear that the test is not whether a policeman believes that
he has reason to suspect, but whether, on an objective approach
he
in fact has reasonable grounds for his suspicion
”;
see also Mvu v Minister of Safety and Security and Another 2009 (2)
SACR 291 (GSJ)
[3]
Minister
of Law and Order v Hurley
1986 (3) SA 568
(A) at 589 E-F; Minister
van Wet en Orde v Matshoba
1990 (1) SA 280
(A).