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[2019] ZAGPPHC 23
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Dunn and Others v Minister Of Police (53974/15) [2019] ZAGPPHC 23 (8 February 2019)
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
(1)
NOT
REPORTABLE
(2)
NOT
OF INTEREST TO OTHER JUDGES
(3)
NOT
REVISED
Case No. 53974/15
9/2/2019
In
the matter between:
QUINTON LEE
DUNN
FIRST PLAINTIFF
SHAUN
CORNELIUS BRONKHORST
SECOND PLAINTIFF
PHILLIPUS
DAWID LOTTERING
THIRD PLAINTIFF
And
MINISTER
OF POLICE
DEFENDANT
JUDGMENT
MILLAR,
AJ
1. The
Plaintiffs brought an action for damages against the defendant
for
damages arising out of what was alleged to be their unlawful arrest
and detention. The defendant admitted the arrests but placed
in issue
their unlawfulness.
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 4 March 2013 and at Brits in the North
West
Province, the plaintiffs were arrested. They were arrested, without a
warrant having been first issued and thereafter detained
at the Brits
Police Station until their release later the same day.
4.
The
defendant accepted that it bears the onus of proving that the arrests
were lawful and that it had the duty to begin.
5. The
defendant called Sergeant Legodi as a witness. He testified that
at
the time of the arrests, he had been a constable and had been in the
service for 7 years. He was and still is stationed at the
Brits
police station. On the day in question the police had been called to
the premises of a company called "Pat Cornick".
A complaint
had been made that workers there who were on strike h d been
demanding their money and were "singing and dancing".
He had gone to the scene with three other officers -
Lieutenant Dlamini, Constable Madia and Constable Mngadi. They had
driven there
in two marked Nissan police vehicles and Legodi had
driven with Constable Madia.
6. When
they arrived at the scene It appeared peacefu.l and Lieutenant
Dlamini had taken charge of the scene. There were none of the signs
that usually accompanied strikes such as stones in the road,
blockades and burning tyre's. He spoke to the workers who he found a
short distance from the premises and they informed him that
people
had been shot and taken to hospital. He then proceeded to cordon off
the scene and made arrangements for the Local Criminal
Record Centre
to send someone to begin investigating and take photographs.
Lieutenant Dl mini remained on the scene.
7. He had
then gone with Constable Madia to the Brits hospital where
he had
seen four persons who had suffered injuries. He described the
injuries as appearing serious and that one of the injured
appeared to
have been shot in the back. He went back to the scene and was told by
Thabiso Molefe and Charles Nyalunga that the
people who had been
shot, had been shot by the first plaintiff and mernbers of PPS
Security from some distance away. He did not
speak to anyone else at
the scene. He then approached the plaintiffs and without asking them
for their version of what had happened,
informed them that he
intended to arrest them on a charge of attempted murder.
8. The
plaintiffs were peaceful and co-operative. He had disarmed them and
read them their rights. They were not handcuffed and had voluntarily
climbed Into his vehicle and gone with him back to the station.
When
they had arrived there, he had again read them their rights and they
had signed and been 9iven SAP14 forms - the "Notice
of Rights in
Terms of the Constitution". This had occurred at 11h30 for the
second plaintiff and at 12h12 for the first plaintiff.
He had then
handed them over to be held in custody.
9. The defendant
also called Detective Nkwana, Mr. Mataboge and Mr. Marema
as
witnesses. All three gave evidence which was corroborative of an
incident at "Pat Cornick" on the day in question
and that
people had been shot. None of the three had spoken to Legodi on the
day in the period immediately prior to his decision
to arrest the
plaintiff's.
10. The first plaintiff
testified. On the day in question he had been at the premises
of "Pat
Cornick" together with various employees of his company PPS
Security, which included the second and third plaintiff's.
With him
was also Mr. Ngwenya who also provided security to "Pat
Cornick". Some of the workers were on strike and had
gathered in
the vicinity of the premises. Also, in the vicinity were job seekers
who were there to apply for positions at "Pat
Cornick".
11. The situation
became volatile and the job seekers were advised to come back
another
day so as not to antagonize the strikers. While the Job seekers were
moving off, the strikers engaged with them. The first
plaintiff
called on them to stop and they had in turn thrown stones at them.
They had then heard screams of pain and had seen strikers
assaulting
someone a short way off. A "flashbang" was fired to scare
the strikers off and three security officers sent
on foot to help.
Two vehicles with more officers were also sent. Rubber bullets were
also fired.
12. The officers
rescued a job seeker by the name of Rose Makhubele who was injured
and brought her back to safety. She had an injury to her head and
face and was bleeding. Her clothing was damaged.
13. A short while later the
three plaintiffs had given statements to the police setting
out what
happened. These were taken down by Warrant Officer Kemp the station
commander of the Brits police station. The statements
were taken down
at 09h53. Mr. Ngwenya and Ms. Makhubela remained at the scene. A
while later the first and second plaintiffs had
been approached by
Lieutenant Dlamini and placed under arrest. The third plaintiff was
not present at the time, so he was telephoned
and asked to go to the
police station which he subsequently did.
14. The plaintiff also
called Mr. Ngwenya and Ms. Makhubele, both of whom corroborated
the
evidence of the first plaintiff.
15. The plaintiff's dispute
that the arrest was effected by Legodi and he was challenged
on this
aspect. He was adamant that he was the one who arrested the
plaintiffs. The defendant was critical of the evidence of Ms.
Makhubele and challenged it as a fabrication. It was put to her that
this was so, simply because she had never laid charges against
the
people who had assaulted her. She explained this, to my mind
satisfactorily by saying that she did not know the persons who
had
assaulted her except by sight and thus could not identify the
assailants by name to make a complaint at the police station.
16. It is common cause that
the plaintiffs were 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".
17. 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.
"
18. The test to be applied
is an objective one.
[2]
It is not in issue that Legodi (or Dlamini) is a peace officer as
defined in the Act nor that given the information furnished to
him
relating to the incident that he entertained a suspicion of the
commission of an offence contemplated in Schedule 1.
19. What is in issue is
whether, objectively, Legodi's (or Dlamin'is) suspicion rested
on
reasonable grounds.
20. In Mabona and
Another v Minister of Law and Order
[3]
it was stated that
"The test whether a suspicion is
reasonably entertained within the meaning of s 40(1)(b) is objective
(S v Nel and Another 1980(4)
SA
28 (E)
at 33H).
Would a reasonable man in the second defendant's
position and possessed of the same information have considered that
there were
good and sufficient grounds for suspecting that the
plaintiffs were guilty of conspiracy to commit robbery or possession
of stolen
property knowing it to have been stolen? It seems to
me
that in evaluating his information,
a
reasonable man would
bear in mind that the section authorises drastic police action. It
authorises an arrest
on
the strength of
a
suspicion and
without the need to swear out a warrant, ie something which otherwise
would be an invasion of private rights and personal
liberty. The
reasonable man will therefore analyse and assess the quality of the
information at his disposal critically, and he
will not accept it
lightly or without checking it where it can be checked. It is only
after an examination of this kind that he
will allow himself to
entertain a suspicion which will justify an arrest. This is not to
say that the information at his disposal
must be of sufficiently high
quality and cogency to engender in him
a
conviction that the
suspect is in fact guilty. The section requires suspicion not
certainty. However the suspicion must be based
on solid grounds.
Otherwise it will be flighty or arbitrary, and not a reasonable
suspicion."
20. The onus of
proving the lawfulness of the arrest in a matter such as the present
one lies with the defendant
[4]
.
21. Whether the arrest
was effected by Legodi or Dlamini is to my mind immaterial
in the
present matter. The plaintiffs had on the day in question already
made statements in which the reasons for their action,
that is to
halt the assault on Ms. Makhubela, was set out.
22. These statements
were made to the police before the arrest was effected and
at the
time of the arrest, even if Legodi or Dlamini did not have the
statements, they could have interviewed the plaintiffs or
Mr. Ngwenya
or Ms. Makhubele, all of whom were available on the scene, to
ascertain the circumstances under which the plaintiffs
had acted.
23. While the evidence
of Legodi shows clearly that he harbored a suspicion, this
was based
exclusively on the information furnished by Molefe and Nyalunga and
on his observations at the hospital. Since Dlamini
was not called to
testify, it is unclear on what basis he harbored any suspicion, if he
did indeed effect the arrest. For either
Legodi and Dlamini, It seems
to me that further enquiry from readily available witnesses by was
reasonably necessary in the circumstances.
24. In the
circumstances, I find that Legodi or Dlamini could and should have
conducted
further enquiries before the summary arrest of the
plaintiffs and that accordingly the arrest and detention of the
plaintiffs was
not
based
on "solid grounds"
[5]
and was unlawful.
26.
It is ordered:
26.1
The
defendant is liable for such damages as the plaintiffs may prove
arising out of their arrest and detention on 4 March 2013;
26.2
The
defendant is to pay the plaintiff's costs of suit to date on the
scale as between party and party. .
26.3
The
determination of the quantum of damages is postponed
sine die.
A
MILLAR
ACTING
JUDGE OF THE HIGH COURT
GAUTENG
DIVISION, PRETORIA
HEARD
ON:
5 &
6 FEBRUARY 2019
JUDGMENT
DELIVERED ON:
8 FEBRUARY
2019
COUNSEL FOR
THE PLAINTIFF:
ADV J MOLLER
INSTRUCTED
BY:
LOURENS ATTORNEYS
REFERENCE:
MR C LOURENS
COUNSEL FOR
THE DEFENDANT : ADV P PHAMBA
INSTRUCTED
BY:
THE STATE ATTORNEY - PRETORIA
REFERENCE:
MR M LETSOKO
[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]
1988 (2) SA 654
(SE) at 658 E-H
[4]
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).
[5]
Mabona supra