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[2019] ZAGPPHC 183
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Mathibela v Mokeona and Others (19156/2019) [2019] ZAGPPHC 183 (22 May 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISON, PRETORIA
Case
No: 19156/2019
22/5/2019
VUSI
REGINALD MATHIBELA
Applicant
And
THE
DISTRICT COURT MAGISTRATE
First Respondent
MRS
MOKEONA
DIRECTOR
OF PUBLIC PROSECUTIONS
Second Respondent
GAUTENG
DIVISION: PRETORIA
NATIONAL
COMMISSIONER OF POLICE
Third Respondent
MINISTER
OF POLICE
Fourth Respondent
JUDGMENT
SARDIWALLA
J:
INTRODUCTION:
1.
The
Applicant sought an order declaring that his arrest and continued
detention was unlawful.
2.
The
issue before this court is to determine whether the arrest was
lawful. The arrest took place without a warrant in terms of Section
40(1)( b) of the Criminal Procedure Act 51 of 1977 (CPA).
BACKGROUND:
3.
On
the 13 March 2019, the Applicant was arrested in terms of S40 (l) (b)
of the CPA by Sergeant Rapetswa at the Germiston Police
Station where
the applicant was booked and processed.
4.
It
is common cause between the parties that the Applicant was arrested
after he voluntarily submitted himself over with his attorney
at the
Germiston Police Station. Prior to his arrest the Applicant ' s
attorney was in constant communication with Investigating
Officer
Mokaa , who was in charge of the case. regarding arrangements to have
the Applicant arrested and booked .
5.
Counsel
advised this Court that the Second Respondent was satisfied that
there was a
prima
facie
criminal
case against the Applicant regarding the offences that were committed
by his two co-accused which warranted his prosecution.
6.
In
the interests of convenience evidence led before the
court
a quo
will
not be repeated in this judgment in any great detail unless material
to the conclusions reached .
THE
PLEADINGS:
7.
The
claim is based on unlawful arrest and the onus is therefore on the
Respondents to show that the arrest was indeed lawful.
8.
It
is common cause that the policemen who were involved in the arrest
were acting within the course and scope of their employment
as police
men of the South African Police Services.
9.
The
Applicant claims to have had his right of freedom and security
infringed upon. However this Court was requested to only make
a
finding on the merits.
10.
The
Applicant raised certain points
in
limine,
insofar
as the pleadings were concerned.
11.
The
Applicant contended that the Second to Fourth Respondents' Answering
Affidavits were inadequately pleaded and was founded entirely
upon
hearsay evidence. That the Respondents have merely pleaded by making
a general reference to a statutory provision without
pleading any
facts supporting their defence.
12.
That
the Third and Fourth Respondents should have arrested the Applicant
using a Warrant of Arrest together with the relevant affidavits
used
in support of the Warrant of Arrest.
THE
EVIDENCE:
Second
Respondent
13.
The
Second Respondent stated that on 14 March 2019 after perusing the
docket it came to a conclusion that the Applicant was positively
linked to the offences. Second Respondent was satisfied that the
Applicant was lawfully arrested and the matter was enrolled. Further
that the Applicant is not contesting his arrest was without merit but
rather that the crux of the matter is that his arrest was
executed
without a Warrant in terms of
Section 40(1)(b)
of the
Criminal
Procedure Act, 51 of 1977
. In support of this submission the Second
Respondent indicated that whilst the other accused in the matter had
to be traced and
arrested, the Applicant was handed in by his own
attorney Mr Mkhabela for booking. The Second Respondent submitted
that the Applicant
had substantial redress at the bail application
and the urgent application and therefore his allegation of
infringements against
his Constitutional Rights cannot stand.
Third
and Fourth Respondents
14.
The
Third and Fourth Respondents indicated that the case was allocated to
Sergeant Mokaa an Investigating Officer. That on 8 March
2019 when
the police arrived at the Applicant's known address he had fled the
premises but the police were able to arrest the other
two accused who
were also at the premises. After the arrest of the other two accused,
the Applicant and his attorney Mr MkhabeJa
were in constant
communication with Sergeant Mokaa. The Third and Fourth Respondent
submitted that the constant communication was
to the effect that Mr
MkhabeJa continually promised that he would hand the Applicant to the
Police Station to be booked. Further
that throughout this process the
investigating team had also monitored the Applicant's residence but
were unable to locate him
. Therefore due to those circumstances they
applied for a Warrant of Arrest at the hearing of the first
appearance for the other
two accused. Further that the Warrant of
Arrest has always been in the possession of the Investigating Officer
and even in the
case docket. However due to a sudden turn of events
on 13 March 2019 Mr Mkhabela decided to call Sergeant Rapetswa
another member
of the investigation team instead of the Investigating
Officer as he had previously done. This is the reason why Sergeant
Rapetswa
booked and processed the Applicant when he was handed over
by his attorney. It was submitted that Sergeant Rapetswa bore a
reasonable
suspicion regarding the Applicant who was handed in by his
own attorney at the police station and therefore it would not have
made
sense to wait to arrest the Applicant using the Warrant of
arrest that was issued, as they previously had difficulties in
locating
the Applicant. Sergeant Rapetswa's arrest of the Applicant
was there fore lawfully justified in terms of
Section 40
(1) (b) of
the CPA.
Applicant
15.
The
Applicant did not challenge the version presented by the Respondents
nor did he present any version to the contrary.
The
Applicant's argument
16.
Counsel
on behalf of the Plaintiff persisted with
inter
alia
the
following arguments:
16.1
The State failed to prove that the arrest was lawful and justified;
16.2
The
State failed to oppose the application in the
court
a quo
and
the magistrate was thus obliged to find in favour of the Applicant ;
16.3
The
arresting officer bears the onus of establishing the jurisdictional
facts;
16.4
The
Fourth Respondent failed to prove the jurisdictional requirements for
a lawful arrest and Counsel referred to
Duncan
v Minister of Law and Order
[1]
16.5
That
an arrestee can challenge his continued detention at any stage and
Counsel referred to
Pillav
v Minister of Police and Others
[2]
;
and
16.5.1
That the issue of continued detention should be decided on the facts
that were before the Magistrate
at the time of the Applicant's first
appearance and what transpired in the
court
a quo.
The
Respondent's argument
17.
Counsel
for the Respondents cautioned the court to appreciate the following:
17.1
A peace officer is entitled to arrest without a warrant on the basis
that it is reasonable to identify the
suspect's involvement:
17.2
One does not require concrete evidence to establish that an offence
has been committed ;
17.3
There is only a suspicion required , not proof beyond a reasonable
doubt ;
17.4
That
the offences that the Applicant were charged with fall under Schedule
1 of the Act ; and
17.5
That
the App1icant ' s issue rests not in that he was wrongly accused or
charged but that his arrest was executed without a Warrant
of Arrest
despite the fact that he handed himself over voluntarily with his
attorney;
ANALYSIS
AND FINDINGS:
18.
Section
40(1) of the CPA gives peace officers extraordinary powers to arrest.
Thus the circumstances surrounding when such arrests
are made must be
considered carefully otherwise such arrests are considered to be
unlawful.
19.
In
Duncan
v Minister of Law and Order
[3]
,
the
Court established that jurisdictional facts must
exist before such power can be exercised namely:
a.
the
arrester must be a peace officer;
b.
the
peace officer must entertain a suspicion;
c.
it
must be a suspicion that the arrestee committed a schedule l offence;
d.
the
suspicion must rest on reasonable grounds.
20.
Once
these jurisdictional facts are present a discretion arises whether to
arrest or not . Such discretion must be exercised in
good faith,
rationally and not arbitrarily . This is an objective enquiry with
relation to the facts of
Minister
of Safetv and Security v Sekhoto and Another
[4]
21.
Reasonable
grounds are interpreted objectively and must be of such a nature that
reasonable person would have had a suspicion
[5]
.
22.
The
arrestor's grounds must be reasonable from an objective point of
view. When the peace officer has an initial suspicion, steps
have to
be taken to have it confirmed in order to make it a
"
reasonable''
suspicion
before the arrest is made.
23.
This
test was succinctly summarized in
Mabona
v Minister of Law and
Order
[6]
where
it was established that what is required is suspicion and not
certainty. Such suspicion must make sense otherwise it is frivolous
or arbitrary and not reasonable.
24.
There
must be evidence that the arresting officer formed a suspicion which
is objectively sustainable
[7]
.
25.
In
Tsose
v Minister of Justice
[8]
it
was emphasized that the arrest must be with the intention of bringing
the arrestees before Court. An arrest can take place law
fully, where
the arrestor objectively speaking. has a reasonable suspicion against
the suspect but has to conduct further investigations
after the
arrest before finally deciding to charge the arrestee.
26.
Arrests
can therefore take place even if the arrester realised that at the
time of the arrest he does not have sufficient proof
for a
conviction
[9]
.
27.
lt
should be noted that the events subsequent to the arrests do not have
any bearing upon whether their suspicion was reasonable.
Therefore
this Court will not deal with the evidence pertaining thereto.
28.
The
crux of the dispute between the parties was whether the suspicion
that the Applicant had committed a schedule l offence was
established
on reasonable grounds to justify his arrest without a Warrant.
However the Applicant does not state which of these
jurisdictional
facts, the Fourth Respondent did not satisfy.
Objective
test
29.
This
test was set out in the
Mabona
matter
supra.
The
test of whether the suspicion is reasonably entertained within the
meaning of section 40(1)(b) of the
CPA
is
objective. The enquiry is therefore - would a reasonable man in the
particular Defendant's position who possessed the same information,
have considered that there were good and sufficient grounds for
suspecting that the Plaintiffs were guilty of the offence for which
he sought to arrest the Plaintiff?
30.
In
evaluating such information a reasonable man would bear in mind that
the section authorises drastic police action. lt authorises
an arrest
on the strength of a suspicion and without the need to swear out a
warrant, i.e. something which otherwise would be an
invasion of
private rights and personal liberty. It was held that;
"The
reasonable man will therefore analyse and assess the Quality of the
information at his disposal critically and will not
accept it lightly
or without checking if 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 a sufficiently high quality
and cogency to engender in him a conviction that the suspect is in
fact guilty . The section requires
suspicion and not certainty .
However the suspicion must be based upon solid grounds..."
(my
under lining
[10]
.
31.
In
applying the test objectively the conduct of the police officer prior
to effecting the arrest therefore must be closely examined.
32.
Since
the arrest of the other two accused it was Investigating Officer
Sergeant Mokaa who communicated with the Applicant's wherein
the
Applicant's attorney Mr Mkhabela promised to submit the Applicant for
booking. Sergeant Mokaa also had in his possession in
the case docket
the Warrant of Arrest for the Applicant which was applied for after
it became apparent that they experienced difficulty
in securing his
arrest despite the attorneys' constant reassurances.
33.
However
due to a sudden change of events by the Applicant's attorney the
Applicant decided to contact another member of the investigating
team
Sergeant Rapetswa and had called him from the Germiston Police
Station. lt was submitted by the Respondents that given the
fact that
the Applicant had evaded arrest after several attempts were made to
locate him. it was reasonable for Sergeant Rapetswa
to seize the
opportunity and arrest the Applicant under Section 40 (1) (b) of the
CPA, which he is lawfully allowed to do as a
peace officer as it had
become apparent that to release him would be futile to their
investigation. Further that as he since Sergeant
Rapetswa was also a
part of the investigating team that was investigating the Applicant,
he was therefore certain that the Applicant
was the same person that
they were searching for. This certainty was further confirmed by the
fact that the Applicant was presented
to the Police Station by his
own attorney Mr Mkhabela. There was and can be no doubt that the
correct person was arrested. Further
that at no stage during the
processing of the Applicant did the Applicant or his attorney
challenge that a Warrant of Arrest was
not used in the execution of
his arrest and processing.
34.
Was
this sufficient to establish there were reasonable grounds existed to
form the suspicion?
35.
Counsel
for the Applicant has not indicated to this Court that a proper
investigation process was not followed nor has he alleged
which of
the jurisdictional facts required in
Duncan
were
not satisfied by the Fourth Respondent. The Applicant does not even
allege that the Respondents did not have any proof of his
association
to the offences that he was charged with. To the contrary the
Applicant does not even allege that his arrest was wrongful
but only
that the procedure of not affecting his arrest by execution of a
Warrant was unlawful. In fact the Applicant requests
in prayer 8 and
9 of the notice of motion that he can only be arrested by way of a
Warrant of Arrest issued in terms of the provisions
of
Section 43
of
the
Criminal Procedure Act 51 of 1977
and that such Warrant be served
on him together the affidavits used in support of the application for
the Warrant of Arrest.
36.
The
Respondents however have provided this Court with a version of events
arising from the date of the arrest of the other two arrested
suspects up until the date of the arrest of the Applicant. These
versions were detailed and corroborated each other in many material
respects. It is significant to point out at this stage that the
Applicant has presented no contrary version of those events and
certainly has not challenged any of the Respondents versions.
37.
The
Respondents have further provided clear and concise reasons as to why
the arrest of the Applicant was effected without a Warrant
of Arrest
and instead by using the
Section 40
(1) (b) of the CPA procedure in
that until the time that the Applicant's attorney presented him to
the Germiston Police Station,
there was severe difficulty in securing
his arrest. Therefore it was reasonable to arrest him using
section
40
( l)(b) of the CPA when the opportunity arose instead of waiting
to arrest him by execution of the Warrant of Arrest.
38.
Having
regard to the evidence before this Court and in light of the
aforesaid authorities , I am satisfied that a reasonable suspicion
was established. There was nothing more required by the Fourth
Respondent particularly in light of the fact that they relied on
the
Applicant ' s attorney physical submission of the Applicant for
arrest at the Germiston Police Station on 13 March 2019 to
confirm
their suspicion that the Applicant was the person they were searching
for. Surely they were not expected to critically
question the
Applicant who had voluntarily submitted himself to arrest after
several prior arrangements to do so.
39.
The
suspicion had to be based on solid grounds. They were expected to
make certain enquiries and investigate the accuracy of the
information before acting upon it which J am satisfied that the
Fourth Respondent did in fact do.
40.
Harms DP
in the
Sekhoto
[11]
matter
at 327b-c held that:
"once
the
required jurisdictional facts are present , the discretion or
not to arrest arise . Peace officers were entitled to exercise this
discretion as they saw fit. provided they stayed within the bounds of
rationality. The standard was not breached because an officer
exercised the discretion in a manner other than that deemed optimal
by the Court. The standard was not perfection, or even the
optimum,
judged from the vantage of hindsight . and, as long as the choice
mode fell within the range of rationality , the standard
was not
breached" .
41.
Counsel
for the Applicant relied on the
Sekhoto
matter
which however also held that the arrestor was not called upon to
determine whether or not a suspect ought to be detained
pending
trial, that was for the Court to determine, and the purpose of an
arrest was simply to bring the suspect before Court so
as to enable
it to make
that
determination
[12]
the missing link shall remain that the suspicion was reasonable.
42.
Consequently
this Court is convinced that the arrest was lawful if one has regard
to the conduct of Sergeant Mokaa and Sergeant
Rapetswa prior to the
arrest of the Applicant. They had the requisite knowledge of the
Applicant's involvement in the associated
offences and had analysed
the information accordingly prior to his arrest.
43.
This
Court further had regard to the fact that the Fourth Respondent has
pleaded the jurisdictional facts particularly that the
suspicion
rested on reasonable grounds and has proven that Sergeant Rapetswa' s
actions were reasonable and rational.
44.
lt
is trite law and as Harms DP in the
Sekhofo
matter
at page 333 succinctly held that,
"if
a defendant wishes to rely on
s40(l)(b)
defence , he has to plead the
four jurisdictional fact s. This requires that the facts on which the
defence is based must be set
out.
"
44.
This
Court is therefore not satisfied that the pleadings lacked the
jurisdictional requirements and the facts supporting thereto
as
alleged by the Applicant.
Onus
45.
It
is well established principle that the onus rests on the arresting
officer to prove the lawfulness of the arrest. In this case
the
Fourth Respondent has adequately shown that they exercised their
suspicion reasonably, that is they met the jurisdictional
requirements
[13]
.
Moreover this Court is aware that arrests without warrants are not
always made upon written affidavits. In certain cases police
officers
rely on oral testimony. What was crucial is what had they done to
establish that solid grounds existed for the suspicion.
CONCLUSION:
46.
This
Court's finding therefore is that the Respondents have sufficiently
proven on a balance of probabilities that the arrest was
lawful.
ORDER:
The
following order is therefore made:
The
application is dismissed with costs.
SARDIWALLA
J
JUDGE
OF THE HIGH COURT
APPEARANCES
Date
of hearing
: 29
March 2019
Date
of judgment
: 22
May2019
Applicant's
Counsel
: AM Van
Den Heever
L
Phasha
Applicant's
Attorneys
: Mathopo
Attorneys
Second
Respondent's Counsel
SR
Sibara
Third
and Fourth Respondent's Counsel :
HA Thenga
Respondent's
Attorneys
: State attorney Pretoria
[1]
1986 (2)SA 80 at 818 F-H
[2]
(5644/2011){2011] ZAKZPHC 42 (30 September 2011) (11) 16)
[3]
supra
[4]
2011 (1) SACR 315
SCA
[5]
R v Heerden
1958 (3) SA150 (T)
[6]
1988 (2) SA 654
SEC
[7]
Ralekwa v Minister of Safety and Security 2004 (1) SACR 313 (T)
1
[8]
1951 (3) SA10A
[9]
Songono v Minister of Law and Order
1996 (4) SA 384
SEC
[10]
Mabono supra at p 658
[11]
Minister of Safety and Security v Sekhoto and Another 2011 (1)
SACR 315 (SCA
[12]
Sekhoto matter supra at 331c-332a
[13]
Minister of Safety and Security and Another v Swart
2012 (2) SACR
226
SCA