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[2019] ZAGPPHC 322
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Venter v Minister of Police (22996/14) [2019] ZAGPPHC 322 (10 July 2019)
REPUBLIC OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 22996/14
10/7/2019
In
the matter between:
PATRICIA
ANN
VENTER
Plaintiff
and
THE
MINISTER OF POLICE
Defendant
JUDGMENT
TEFFO,
J:
[1]
The
plaintiff, Ms Patricia Ann Venter. sued the defendant, the Minister
of Police, for payment of the sum of R200 000,00 in respect
of
damages for unlawful arrest and detention.
[2]
The
defendant is being sued in his capacity as the head of the South
African Police Service ("the SAPS").
[3]
The plaintiff's cause of action arises out her arrest and detention
at Muldersdrift
police station on 11 December 2012 by female Const
Molefe with a J50 warrant on a charge of theft of a motor vehicle.
She was detained
for 2 (two) hours. It is alleged that she was
unlawfully arrested and detained and that the J50 warrant was
illegally obtained
by Detective Const Nkuna. The said policemen were
acting within the course and scope of their employment as members of
the SAPS.
[4]
The
defendant admitted the arrest and the detention of the plaintiff with
the warrant but denied that she was unlawfully arrested
and detained
and that the warrant was illegally obtained. He pleaded that the
arrest was lawful and properly executed in terms
of the provisions of
section 44 read with section 43 of the Criminal Procedure Act, 51 of
1977 (the CPA). The defendant further
pleaded that the arresting
officer was a peace officer as defined in section 1 of the CPA She
had exercised her discretion properly
when she executed the warrant.
She had a reasonable suspicion which had been formulated and based on
the warrant of arrest that
the plaintiff committed a crime of theft
of a motor vehicle. The defendant denied that he was liable for any
damages alleged consequent
thereof.
The
issues
[5]
This
judgment concerns the issues of whether or not Ms Venter's arrest and
detention were unlawful, whether or not the J50warrant
was illegally
obtained and not the quantum of damages to which she is entitled, if
they are. By agreement between the parties,
I ordered the separation
of these issues at the commencement of the trial.
The
evidence
[6]
The
plaintiff testified on her own in support of her case and the
defendant called 3 (three) witnesses, namely, Mr Eric van Staden,
female CST Molefe and Detective CST Nkuna, in defence of the case
against him.
[7]
The
plaintiff, Ms Venter, testified that she was arrested on 11 December
2012 by CST Molefe. She had worked for the complainant,
Mr Jan Dirk
du Bryn, for some years at his pub and restaurant. She had been
residing at the back of the restaurant at the time.
She had been
responsible for the collection of the stock for the restaurant. The
stock comprised liquor and meat. She had been
using the complainant's
bigger motor vehicle, a Hyundai Tucson with registration letters and
numbers, VBL 494 GP, to collect the
stock and the complainant had
been using her motor vehicle until it broke down. She continued
driving the complainant's motor vehicle
and the complainant took her
motor vehicle for repairs. The situation at work became unbearable
and she decided to leave. At that
time, she was still in possession
of the complainant's motor vehicle. She asked the complainant to come
to the restaurant. He did
not peach up. She then left the premises in
the beginning of October 2012 with the complainant's motor vehicle
and went to reside
with her son.
[8]
The
complainant called her several times and asked her to come back to
work and she refused. In November 2012, her sister passed
on and she
saw the complainant at her sister's funeral in Evander. The
complainant did not mention anything about her motor vehicle.
Some
days later, the complainant phoned her and demanded his motor
vehicle. She informed him to come to Evander police station
at 16:00
to fetch it. He did not come.
[9]
A
week later she received a call from Muldersdrift police station where
she was informed that the complainant wanted his motor vehicle.
She
assumed at the time that her motor vehicle was repaired. She kept
contact with CST Molefe, requesting her to agree on the time
she
would bring the motor vehicle. That did not happen. Eventually an
arrangement was made for her to meet with CST Molefe on 11
December
2012 at Muldersdrift police station with the view to exchange the
motor vehicles.
[10] She drove to
Muldersdrift police station early in the morning and met with CST
Molefe. They had a discussion
and CST Molefe wrote down what she had
been telling her. CST Molefe then said she should accompany her to
Krugersdorp police station
where she was going to see someone after
which she would get her motor vehicle.
[11] CST Molefe took
the complainant's motor vehicle keys from her and she drove with her
in a police van
to Krugersdorp police station.
[12] At Krugersdorp
police station CST Molefe ordered certain police officers to lock her
up. She was taken
to a room where she was locked up with some men.
[13]
There
were many men in the room where she had been locked up. They grabbed
and touched her and demanded money and cigarettes from
her.
Eventually she was released. She left and went to Muldersdrift police
station where she got her motor vehicle. The repairs
on her motor
vehicle were still not done.
[14]
She
was not shown the warrant of her arrest and she was not told of the
charge she was facing. Her constitutional rights were not
explained
to her. CST Molefe handed a lot of documents to her which she signed.
All what she had wanted at the time, was to go
home.
[15]
She never appeared in court. According
to a letter appearing on page 30 of the bundle of documents, that had
been addressed to the
Liaison Officer of the Krugersdorp Court, dated
11 December 2012, from the Senior Public Prosecutor, Krugersdorp, S E
van der Merwe,
her case was not enrolled because she had been
arrested unlawfully and the office of the Public Prosecutors declined
to prosecute.
[16]
She disputed the contents of the
complainant's statement which he made to the police and reiterated
that after the complainant had
damaged her vehicle, by mutual consent
he let her use his motor vehicle. She had agreed with the complainant
that she would get
her motor vehicle after it had been repaired.
After she had left her employment and had relocated to her son's
residence and before
her sister's funeral, the complainant phoned her
several times. In all the conversations, the complainant never spoke
about her
motor vehicle. At her sister's funeral, the complainant did
not speak to her about the motor vehicle. He just grabbed her by her
arm and left. She never spoke to him. She had been using the
complainant's motor vehicle since June 2012.
[17] She had never
interacted with CST Nkuna. It was never her intention to keep the
motor vehicle to herself
permanently. She had learnt for the first
time on 11 December 2012 that a case of theft of a motor vehicle was
being investigated
against her.
[18] Under
cross-examination she testified that she did not steal the motor
vehicle and the police did not
have to lock her up. She disputed that
the complainant did not know that she had relocated to her son's
residence. She confirmed
her names and details on the warrant and
admitted that she took the complainant's motor vehicle on 7 October
2012. The complainant
had spoken to her on a weekly basis on a
cellphone that she had used when she had been working for him.
Shortly after she had relocated
to her son's residence, she stopped
using the phone. She had never spoken to CST Nkuna about the case.
She had only spoken to CST
Molefe. She denied being contacted by CST
Nkuna about the case. After it had been put to her that the period
from 7 October 2012
to 21 November 2012 was quite a lengthy period in
a situation where someone had borrowed a motor vehicle to someone and
the owner
thereof did not know its whereabouts, she replied that her
motor vehicle which the complainant had damaged, had been taken for
repairs from June 2012. She had to use the complainant's motor
vehicle.
[19]
She testified that she was unlawfully
arrested in that she had spoken to CST Molefe many times to arrange
for the exchange of the
motor vehicles. She denied that CST Molefe
only spoke to her on 8 December 2012. She could not recall the date
she had first spoken
to CST Molefe but maintained that it was before
11 December 2012. She testified that she could have spoken to CST
Molefe in November
2012. She did not know at the time when she spoke
to CST Molefe that there had been pending criminal charges against
her. She was
phoned and requested to come to Muldersdrift police
station. She was under the impression that she and the complainant
were going
to swap their motor vehicles. She denied that she could
have spoken to CST Molefe between 7 October 2012 and 21 November
2012.
She maintained that she could have spoken to her about four
times. She could not go to the police as CST Molefe said she should
make an appointment.
[20]
It was only on 8 December 2012 that she
and CST Molefe managed to agree on an appointment for 11 December
2012. That concluded the
plaintiff's case.
[21]
Mr Eric van Staden testified that he is
a Regional Court Control Prosecutor at Krugersdorp Magistrate's
Court. He had been stationed
at the same place in December 2012. The
docket relating to the matter against the plaintiff was brought to
him. After he had read
its contents, he issued a
no/le
prosequi.
On the version of the
plaintiff, he realised that the State would not have been in a
position to prove its case beyond a reasonable
doubt. There were
contradictions between the complainant's version and that of the
plaintiff. He had been informed that the complainant
and the
plaintiff agreed to exchange their motor vehicles. The initial
statement of the complainant (A1) did not reflect the true
state of
affairs regarding what had transpired between the parties.
[22]
The docket was not taken to court. The
matter was not enrolled. A docket was just issued so that the
plaintiff could be released
from the cells.
[23]
When he read the A1, the complainant's
statement and the A4, his son's statement, he picked up that the
plaintiff had absconded
from work and had left the premises with her
employer's motor vehicle. At her sister's funeral, the complainant
had confronted
her about his motor vehicle and she did not give an
indication of its whereabouts. According to him the police applied
for a J50
warrant after taking into account the period of time that
had lapsed from the day the plaintiff had the complainant's motor
vehicle
to the day of her sister's funeral when she had been
confronted about the vehicle.
[24]
He could not tell which documents had
served before the magistrate when the warrant was applied for. The A1
and the A4 together
with an application for a J50 warrant by a police
officer served before another public prosecutor. The public
prosecutor had made
a determination that he would sign for an
application to be made before a magistrate. What he knows is that in
Krugersdorp after
the public prosecutor had signed the J50, police
officers would have taken the application with all the documents to
the magistrate.
[25]
Reference was made to the statement that
was made by the officer who applied for the warrant, CST Nkuna. The
statement reads:
"Paragraph 2
I
am
the
Investigating Officer of CAS191!11!12 use of
a
motor
vehicle without the owner's
consent case. After receiving
a
written sworn affidavit from the
complainant, Mr Jan Du Bryn, it appeared that Mrs Patricia Ann Venter
...
intentionally
and unlawfully took the complainant's vehicle without the owner's
consent and intended to keep it to herself permanently.
It is evident
that this amounts to theft. Therefore, I hereby apply for the warrant
for Mrs Patricia Ann Venter's arrest. Her last
known address is
Warriors Arms Pub, Van Wyk
..."
[26]
In his explanation of why the police
officer who had applied for a warrant had mentioned the offence of
theft as against the offence
of use of a motor vehicle without the
owner's consent as referred to in the docket, he stated that police
officers are not lawyers.
They do not have authority to put charges
on the docket. That is in the domain of the prosecution.
[27]
On page 30 of Bundle E, there is a
letter from the Senior Public Prosecutor Krugersdorp, S E van der
Merwe dated 11 December 2012.
Paragraph 1 thereof states that the
abovementioned case was not enrolled because (a) the accused had been
arrested unlawfully;
(b) this office had declined to prosecute in
this matter. The accused may thus be released immediately.
[28]
He testified that paragraph 1(a) of the
letter was not applicable in this matter.
[29]
According to him the J50 warrant had
been applied for because the offence was serious in that the value of
the motor vehicle was
R160 000,00 and the address of the plaintiff
was unknown. He disagreed that there was no evidence in the docket
that stated that
the plaintiff had taken the vehicle to herself to
use it permanently and referred to the A1. It was put to him that the
complainant
mentioned in his statement that he had borrowed the
vehicle to the plaintiff. He replied that the evidence was that at
some stage,
the plaintiff disappeared with the motor vehicle from the
place where she had resided at the time.
[30]
It was put to him that if the motor
vehicle of the complainant had been stolen, when he laid a complaint,
he would have stated that
it was stolen. His reply was that he did
not have any idea of what the complainant had said when he laid
charges against the plaintiff.
When the docket was brought to him on
11 December 2012, he realised that the complainant did not tell the
truth about what had
happened.
[31]
It was further put to him that CST Nkuna
had made false allegations about the plaintiff when he applied for
the J50 warrant. He
replied that he cannot answer on the allegations
made because the initial application for the warrant, was not dealt
with by him.
He only dealt with the matter on 11 December 2012.
[32]
W/O Barati Violet Molefe testified that
she is a police officer and she is stationed at the Krugersdorp SAPS
Forensic Service. She
has 20 years and 6
(six)
months experience as a police
officer. She holds the rank of Warrant Officer. During 2012 she was a
Constable and was stationed
at Muldersdrift police station.
[33]
She had been the investigating officer
in the case against the plaintiff. She had taken over the
investigations from DC Nkuna on
23 November 2012. She contacted the
plaintiff on 8 December 2012 and requested her to come to the police
station. At approximately
07:15 on 11 December 2012, the plaintiff
came to her office. The complainant also came. The plaintiff
introduced herself to her
and she did the same and told her that she
was the investigating officer in the case of the use of the motor
vehicle without the
owner's consent. She further told her that she
was going to execute the warrant of arrest against her. She took her
to the charge
office for a formal admission to be done. At the charge
office, she told her that she was arresting her with a warrant.
[34]
She read her rights according to the
constitution and also showed her the original warrant of arrest. She
read all the information
that had been on the warrant of arrest. She
then asked her if she understood and she said yes. She confirmed her
full names and
did the paper work at the charge office.
[35]
She had only contacted the plaintiff on
8 December 2012. She took her warning statement on 11 December 2012
and also wrote a statement
confirming the execution of the J50
warrant of arrest. The notice of rights in respect of the plaintiff
was done at 07:10 on 11
December 2012 at the charge office of
Muldersdrift police station. She read the notice of rights to the
plaintiff in English and
she indicated that she understood. They both
appended their signatures on the document.
[36]
She arrested the plaintiff at 07:15 and
detained her at 09:00. Immediately thereafter, she took her to
Krugersdorp SAPS.
[37]
After she had received the docket, she
read it and checked if there were investigations to be done prior to
her executing the warrant.
She realised that she needed to take the
A4, the statement from the complainant's son, who was the owner of
the motor vehicle.
She explained why there was a difference in the
offence mentioned in the warrant and that on the docket. The first
offence was
recorded at the charge office before the docket came to
the detectives. After the docket had been sent to the detective they
go
through it. After going through it, they, as detectives, are
allowed to change the charge and also add more charges.
[38]
The
plaintiff did not go to court. She had been taken to the control
office where the prosecutors read the docket before it goes
to court.
She presented the case against the plaintiff to Mr Van Staden and he
declined to prosecute. The complainant and the plaintiff
agreed to
give each other the motor vehicles.
[39]
Under cross-examination, she testified
that she telephoned the plaintiff on 8 December 2012 and she and her
agreed to meet each
other on 11 December 2012. She did not have any
trouble to get hold of her. She had her details to be able to trace
her. She disputed
that she had asked the plaintiff to bring the
complainant's motor vehicle in order to exchange it with her motor
vehicle which
was in the possession of the complainant. She did not
know at the time that the complainant was in possession of the
plaintiff's
motor vehicle. She heard about that from the plaintiff.
[40]
She did not obtain the warrant. She had
only executed it. When she received the docket, the warrant was
already in the docket. She
denied that the plaintiff had been booked
in the cells at Krugersdorp Court.
[41]
She denied that she had telephoned the
plaintiff more than once. She denied that there was no information in
the docket that the
plaintiff had stolen the motor vehicle and
maintained that according to A1, she did. It was put to her that in
the A1 statement,
the complainant did not say that the plaintiff had
stolen his motor vehicle but that he had borrowed the motor vehicle
to her.
She replied that the whereabouts of the plaintiff and the
motor vehicle had been unknown to the complainant and according to
her,
the plaintiff had the intention to keep the complainant's motor
vehicle permanently to herself.
[42]
Under re-examination she testified that
she did not have the residential address of the plaintiff in the
docket when she telephoned
her.
[43]
DC Elect Jewes Nkuna testified that he
is employed at the fraud department of the First National Bank, FNB.
During 2012 he had been
employed at Muldersdrift SAPS and had held
the rank of constable. He had been the investigating officer in the
matter immediately
after the case was opened.
[44]
On 21 November 2012 he contacted the
plaintiff on cellphone number 072 400 0521. The person who answered
introduced herself to him
as Ms Ann Venter. He also introduced
himself to her as CST Nkuna and informed her that the complainant had
laid charges against
her which related to his motor vehicle. He asked
her to come and give her side of the story. The plaintiff hung up the
phone on
him. He tried the number again and she did not answer. When
he informed her that she was a suspect, she arrogantly put the phone
down.
[45]
The reason he had applied for a warrant
is that he had read the complainant's affidavit (the A1) and had
understood that his motor
vehicle had been missing for some time. It
was missing from 7 October 2012 to 20 November 2012. According to him
the complainant
has exhausted all the avenues to get his motor
vehicle back. He resorted to the police for help. He was satisfied
that the elements
of theft have been established, hence the plaintiff
was charged of theft. When he applied for a warrant, he was in
possession of
the A1 statement of the complainant. Before he applied
for the warrant, his impression of the suspect when she hung up the
phone
on him was that she was not co-operative to him as a police
officer. He was satisfied that she could have been guilty of theft
and that the way she had behaved towards him made him suspect that
she could be knowing something.
[46]
He was employed by the SAPS for 9 (nine)
years and some months.
[47]
Under cross-examination he disputed that
he had spoken to the plaintiff's daughter when he called looking for
her. He was adamant
that the person who answered the phone was the
plaintiff. He conceded that the number 072 400 0521 belonged to the
plaintiff's
daughter. He had tried the number 082 448 871 which
belonged to the plaintiff but the phone was off. It was put to him
that the
complainant in his statement mentioned that he had borrowed
the plaintiff the motor vehicle and his complaint was that the
plaintiff
had used his motor vehicle without permission. There was no
evidence to say the plaintiff had intended to keep the motor vehicle
permanently. He replied that after reading the complainant's
statement, he was satisfied that the plaintiff was not going to
return
the complainant's motor vehicle hence he tried to call her so
that she can come to the police station and give her version.
According
to him the plaintiff did not want to come. The complainant
had exhausted all the avenues to get his motor vehicle back. He then
resorted to the police. He had a reasonable belief that the plaintiff
was not going to return the motor vehicle.
[48]
When the suspect does not want to come
forth, the police officer discusses the case with the Senior Public
Prosecutor and he can
apply for a warrant on his behalf. In the
plaintiffs case, the complainant's motor vehicle had been missing and
she did not want
to co-operate. That was more than enough to apply
for the warrant. The reason for the plaintiffs arrest was not to
punish her but
to secure her attendance in court as he had failed to
secure her appearance before him.
[49]
A case against the plaintiff was opened
on 20 November 2012. mmediately thereafter he tried to call the
plaintiff. He did his investigation
to get the plaintiffs version. He
did not rush to court. He also went to the complainant's house but he
did not find him. The fact
that the plaintiff did not want to speak
to him was very crucial to him. That is the reason why he had
reported it. When told that
Const Molefe only made one call to the
plaintiff and plaintiff went to the police station, he replied that
he does not know the
method that Const Molefe used to communicate
with the plaintiff. At that time a warrant of her arrest had already
been issued.
[50]
He disagreed that the reason he had
stated in the application for a J50 warrant that the plaintiff
committed theft was because he
had known that the J50 warrant would
not be authorised for an offence of using another person's motor
vehicle without permission.
The
law
[51]
An arrest pursuant to a warrant is
prima
facie
lawful. The onus of proving
the wrongfulness of the arrest by showing that the warrant was
irregular, rests on the plaintiff.
[1]
A warrant in the proper form and issued by a duly authorised official
provides the arresting officer with a defence.
[2]
[52]
Section 43
of the
Criminal Procedure
Act
[3
]
,
("the Act) reads:
"43 Warrant
of
arrest may be issued by
a
magistrate or justice
(1)
Any magistrate
or
justice may issue
a
warrant for the arrest of any person
upon the written application
of
an
attorney-general, a public prosecutor or
a
commissioned officer of police-
a)
which
sets out the offence alleged to have been committed;
b)
which
alleges that such offence was committed within the area of
jurisdiction of such magistrate or, in the case
of
a
justice, within the area of
jurisdiction of the magistrate within whose district or area
application is made to the justice for
such wa1Tant, or where such
offence
was
not
committed within such area of jurisdiction, which alleges that the
person in respect of whom the application is made, is known
or is on
reasonable grounds suspected to be within such area of jurisdiction;
and
c)
which
states that from information taken upon oath, there is
a
reasonable suspicion that the person
in respect of whom the warrant is applied for, has committed the
alleged offence.
(2)
A warrant of arrest issued under
this section, shall direct that the person described in the warrant
shall be arrested by
a
peace
officer in respect of the offence set out in the warrant and that he
be brought before
a
lower
court in accordance with the provisions of Section 50.
(3)
A warrant of arrest may be issued
on any day and shall remain in force until it is cancelled by the
person who issued it or, if
such person is not available, by any
person with like authority, or until it is executed."
[53]
Section 44 of the Act reads:
"Execution of warrants
A warrant of arrest issued under any
provision
of
this
Act, may be executed by
a
peace
officer, and the peace officer executing such warrant, shall do
so
in accordance with the terms
thereof."
Analysis
[54] It is trite that
the onus rests on the defendant to justify an arrest. In this case,
the plaintiff
was arrested with a J50 warrant. She had alleged in her
particular of claim that her arrest and detention had been unlawful
and
that the J50 warrant had been illegally obtained by Detective
Constable (DC) Nkuna. Because she bore an onus to prove alleged
illegally
of the warrant, she testified first.
The
warrant
[55]
The
plaintiff testified that the warrant was not shown to her by CST
Molefe and she was not told of the charges against her. She
further
testified that her constitutional rights had not been explained to
her. This evidence is at variance with what had been
pleaded in the
plaintiffs particulars of claim. It had also been denied by CST
Molefe. There was no evidence presented that the
plaintiff had
demanded a copy of the warrant from CST Molefe and that she had
refused to show or hand a copy to her.
[56]
The
plaintiffs counsel put it to Mr van Staden that DC Nkuna had made
certain allegations against the plaintiff when he applied
for the
warrant. Mr van Staden testified that he cannot respond to the
allegations because he was not involved in the matter at
the time.
The plaintiff had not presented any evidence to the effect that DC
Nkuna had made allegations against her when he applied
for the
warrant and this was not pleaded.
[57]
Counsel
for the plaintiff submitted that the warrant had only been signed
after the plaintiffs arrest. The arresting officer went
with the
plaintiff to the magistrate. He further submitted that CST Molefe had
been aware of this and had acted under a warrant
that was not proper.
That according to him renders the arrest of the plaintiff unlawful.
No evidence was presented that when the
plaintiff was arrested, the
warrant was not issued and/or proper and that CST Nkuna had been
aware of that. ln any event, the plaintiffs
cause of action is that
she was unlawfully arrested and detained with a J50 warrant that was
illegally obtained by DC Nkuna. In
my view whether the warrant was
signed or issued when the plaintiff was arrested, is irrelevant. What
is relevant is whether there
was a legal and probable cause for the
arrest of the plaintiff. The plaintiff was cross examined about the
warrant in order to
ascertain whether the requirements envisaged in
section 43 of the Act had been complied with. Her evidence confirmed
that the requirements
had been met.
The
arrest and detention of the plaintiff - Whether lawful or not
[58]
The
defendant's evidence regarding the arrest of the plaintiff is
straight to the point. It was that the plaintiff disappeared without
trace with the vehicle of the complainant. DC Nkuna had applied for
the warrant on the basis of the statement that had been made
by the
complainant (A1). He tried several times to phone the plaintiff and
when he found her on her phone in order to inform her
that a charge
was laid against her, and to request her to come to the police
station to tell her side of the story, she did not
co-operate. She
hung up the phone on him and this made him to suspect that she could
be guilty of theft of the said motor vehicle.
[59]
Although
the plaintiff disputed that she had ever spoken to DC Nkuna on the
phone, DC Nkuna had nothing to gain from making such
allegations
against the plaintiff. The plaintiff went to the police station with
the complainant's vehicle. This confirmed the
complainant's statement
that she had disappeared with his vehicle for more than a month. Mr
van Staden testified that the police
had applied for the J50 warrant
because the motor vehicle had been missing for some time, and the
value thereof was high. This
evidence corroborated the evidence of DC
Nkuna.
[60]
It
was clear from the evidence that CST Molefe did not apply for the
warrant. All what she did was to execute the warrant. She phoned
the
plaintiff and requested her to come to the police station. When she
arrived at the police station, she told her that she was
going to
execute the warrant and she did exactly that. It is not probable that
CST Molefe could have requested the plaintiff to
come to the police
station in order for her to exchange her vehicle with that of the
plaintiff. If that was the case, why would
she then arrest the
plaintiff. Her evidence was that she did not know that the
complainant and plaintiff had swapped cars until
she was told by her.
The warrant had been issued at the time and hers was to execute it.
[61]
Mr. van Staden honestly testified that
after hearing the plaintiff's version, he realised that the
complainant had misled the police.
He did not tell them the truth
about what had happened between him and the complainant.
[62]
Counsel for the plaintiff referred me to
the case of
S v More
[4]
and submitted that the attendance of
the plaintiff in court could have been secured by way of summons or
written notice and that
there were no reasonable grounds upon which
the defendant could say that the said methods were insufficient to
secure the attendance
of the plaintiff in court.
[63] In
Minister
of Safety and Security v Sekhoto
[5]
,
the Supreme Court of Appeal did to
some extent curb the approach adopted by the High Courts in assessing
whether the arrest is justified
when a summons could have been used.
However, the court stated that where the case is trivial, an arrest
would clearly be rational.
The SCA went on to say the following:
"What I have said must not be
understood as conveying approval of the use of arrest where there is
no urgency and the person
to be charged has
a
fixed and known address; in such
cases,
it
is generally desirable that
a
summons be used".
[64] The defendant's
evidence was that the whereabouts of the plaintiff and the motor
vehicle of the complainant
were unknown. The plaintiff had
disappeared with the motor vehicle for more than a month and when she
met with the complainant
at her sister's funeral, the motor vehicle
was not there and she did not disclose its whereabouts to the
complainant. The value
of the vehicle was +/- R160 000,00. This was
the reason why the J50 warrant was applied. Mr. van Staden explained
the difference
between the J175 and the J50 warrants. The police did
not have the plaintiffs address at the time when the J50 warrant was
applied
for. The argument that the attendance of the plaintiff in
court could have been secured by means of a summons, is without
merit.
It can also not be said that the offence committed was
trivial.
[65] The argument that
the docket mentioned the charge against the plaintiff as use of the
motor vehicle
without the owner's consent while on the warrant, it
was referred to as theft is neither here nor there. CST Molefe
testified that
they, as detectives, have the right to change or add
changes upon the matter being investigated. Mr van Staden's evidence
was that
it is the competency of the public prosecutors to formulate
charges and not the police who are not lawyers. DC Nkuna can also not
be faulted for regarding the offence as theft when one looks at his
evidence. He was clear in his evidence that according to the
complainant, the motor vehicle and the plaintiff's whereabouts were
unknown from 7 October 2012 to 20 November 2012. When he finally
got
hold of the plaintiff on the phone, she did not co-operate. According
to him the plaintiff's conduct made him to suspect that
she was
hiding something and could be guilty of theft. Had the plaintiff co
operated and came to the police station to provide
her side of the
story before DC Nkuna applied for the J50 warrant, the matter would
not have gone this far.
[66]
There is merit in the submission that
was made on behalf of the defendant that the plaintiff was aware as
early as 24 November 2012
that there existed a warrant for her
arrest. The allegations appear on her warning statement. She
mentioned that the complainant
phoned her on 24 November 2012 and
told her that about the warrant. He requested her to return his car.
She told him to come fetch
it the following day on 25 November 2012
at Evander but he did not come. Despite having been made aware of the
warrant for her
arrest, she did not approach the police to prove her
innocence.
[67]
DC Nkuna was criticised that he had only
made one call to the plaintiff and decided to apply for the warrant.
This, in my view,
does not take the case of the plaintiff any
further. DC Nkuna's evidence was logical and he stood his ground
under cross examination.
The fact that the docket was only opened on
20 November 2012 and he managed to get hold of the plaintiff on 21
November 2012, does
not mean that he had only called her once. He was
clear in his evidence that he had phoned her several times but only
got hold
of her on 21 November 2012.
[68]
Further arguments that CST Molefe's
evidence that she did not know that the plaintiff and the complainant
swapped their motor vehicles
until on 11 December 2012 should be
rejected in the face of the plaintiff's evidence that CST Molefe
phoned her several times to
try and arrange that she and the
complainant should exchange their vehicles but could not agree on a
suitable date and time until
11 December 2012, is without any basis.
The plaintiff had been aware as early as 24 November 2012 that a
warrant for her arrest
was in existent. She did not go to the police
to prove her innocence. If indeed she did not speak to DC Nkuna on 21
November 2012
as she alleges, on her own version the complainant told
him that there was a warrant for her arrest. She should have cleared
her
name by going to the police to prove her innocence.
[69]
All the witnesses of the defendant gave
a good impression to the court. They testified satisfactorily. They
were never shaken during
cross examination. Their evidence was
consistent with the case that had been pleaded by the defendant
unlike the plaintiff
whose evidence was lacking and wanting in that
it was not consistent with the allegations she had made in her
particulars of claim.
[70]
The matter between the complainant and
the plaintiff was settled on 11 December 2012 in that the plaintiff
received her motor vehicle
back after she had returned the
complainant's motor vehicle. Counsel for the plaintiff criticised Mr
van Staden's evidence on the
basis of what had been stated in the
letter from the Senior State Prosecutor that
"the
accused had been arrested unlawfully and this office had declined to
prosecute".
He argued that Mr
van Staden's evidence that the statement that the plaintiff had been
arrested unlawfully was not applicable to
this case, cannot be true.
The statement from the Senior State Prosecutor was just an opinion.
It is the court that has to determine
the lawfulness or unlawfulness
of the plaintiffs arrest. It therefore follows that there was a legal
and probable cause for the
arrest of the plaintiff with a J50
warrant. No evidence was presented to prove that the warrant that was
used to arrest the plaintiff
did not comply with the requirements of
Section 43 of the Act. The arrest of the plaintiff with a J50 warrant
was therefore lawful.
The plaintiff's action falls to be dismissed.
[71] In the result the
following order is made:
1.
The plaintiff's action is dismissed with
costs.
M J TEFFO
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
APPEARANCES
For
the plaintiff
JJN Swart
Instructed
by
Erwee Attorneys
c/o Dyason Attorneys
For
the defendant HOR Modisa
Instructed
by
The State Attorney
Heard
on
10 January
2019
Handed
down on 10 July 2019
[1]
Cresto Machines (Edms) Bpk v Die Afdeling Speuroffisier SA Polisie
Noord Transvaal
1972 (1) SA 376(A)
p394; Minister van Polisie v
Goldschagg 1981(1) SA 37(A).
[2]
Divisional Commissioner of SA Police Witwatersrand Area v SA
Associated Newspapers Ltd
1966 (2) SA 503
(A); Prinsloo v Newman
1975 (1) SA 481 (A).
[3]
Act 51 of 1977.
[4]
1993 (2) SACR 606
(W) at 608 C - J
[5]
2011 (1) SACR 315
par 54