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[2019] ZAGPPHC 303
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Matlou v Minister of Police and Another (56822/13) [2019] ZAGPPHC 303 (12 July 2019)
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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
(1)
REPORTABLE
: NO
(2)
OF
INTEREST TO OTHER JUDGES: NO
(3)
REVISED
CASE
NO: 56822/13
12/7/2019
In
the matter between:
MAASEFANE
PHILIP
MATLOU
PLAINTIFF
And
MINISTER
OF POLICE
FIRST DEFENDANT
DIRECTOR
OF PUBLIC PROSECUTIONS
SECOND DEFENDANT
JUDGMENT
COLLIS
J:
INTRODUCTION
The plaintiff issued summons against the
defendant for damages resulting from his unlawful arrest, his
unlawful detention. The said
arrest occurred on the evening of 13
December 2012, by members of the South African Police Service, acting
within the course and
scope of their employment with the first
defendant.
ISSUESFOR
DETERMINATION
[2]
At the commencement of the proceedings
the parties by agreement informed the court that only two issues
falls to be determined by
the Court:
2.1
Whether or not, the arrest and
subsequent detention of the plaintiff was lawful and
2.2
in the event of the Court making a
finding on the first question in favour of the plaintiff, what amount
in damages is to be awarded
to the plaintiff.
ONUS
[3]
It is trite an arrest or detention is
prima facie
wrongful
and unlawful. It is for the defendant to allege and prove the
lawfulness of the arrest and subsequent detention.
[1]
A defendant who therefore pleads a justification for an arrest
(such
as the present defendant)
as a
result not only carries the
onus
to
prove the lawfulness of such arrest
[2]
but also further carries the
duty
to
begin.
DEFENCES
[4]
In paragraphs 4 and 5 of the Amended
Plea the defence by the defendant was pleaded to be as follows:
''AD PARAGRAPH 4
Save to admit that the Plaintiff was
arrested on 13 December 2013, the First Defendant avers that:-
4.1
The Plaintiff was identified by the
complainant in the criminal case as the person that committed robbery
at her house and took
a large sum of money.
4.2
The Plaintiff had allegedly committed
a schedule 1 offence which is armed robbery.
AD PARAGRAPH
5
The defendant denies the allegation
contained in this paragraph and accordingly put the plaintiff to
proof thereof and further avers
that:-
5.1
The Plaintiff was arrested at the
instance of the complainant for the alleged crime he committed.
5.2
He was arrested in terms of Act
51 of 1977 since he committed a Schedule 1 offence.
5.3
He was further identified by the
Plaintiff as the person that allegedly committed the robbery.
LAW
[5]
The defence was broadly based on the
provisions of section 40(1) of the Criminal Procedure Act
[3]
(the Act).
The
section permits the arrest of a person without a warrant to be
carried out by a peace officer under certain prevailing
circumstances.
It lists a total of seventeen (17) such instances
under subsections (a) to (q) and it follows for a defendant who
places reliance
on section 40(1) at least one or more of such
mentioned circumstances ought to be present before an arrest without
a warrant can
be carried out and considered justified. It should also
be borne in mind; certain instances listed under the various
subsections
mentioned in section 40(1) have additional requirements
listed which also have to be met in order to succeed with such
specific
defence. By way of illustration; a peace officer who carries
out an arrest without a warrant in respect of a Schedule I listed
offence, would have to have formed a reasonable suspicion a Schedule
1 listed offence had been committed,
[4]
by the person to be arrested.
EXPOSITION
OF EVIDENCE
[6]
Briefly the facts of this case can be
summarised as follows: On the 13 December 2013 Detective Netshabako
testified that he received
a telephone call from the complainant in a
previously reported house robbery case wherein he was assigned the
investigating officer.
During such telephone call the complainant
reported to him that the allege perpetrator had been seen walking
within the vicinity
of the Musina district. Upon receiving such
information, he together with his colleague Sergeant Makhondo
proceeded to the Musina
central business district where he met the
complainant who pointed out to him the plaintiff as the alleged
perpetrator. He together
with his colleague, then approached the
plaintiff, identified themselves as police officers and placed the
plaintiff under arrest
for the alleged offence reported to have been
committed against the complainant. The plaintiff was thereafter taken
to the police
station, processed and the following day he made his
first appearance in court. On this day the matter was postponed to
another
date and on the next occasion the matter was withdrawn
against the plaintiff at the instance of the complainant. Mr.
Netshabako
further testified that that plaintiff was arrested without
a warrant as it was reported to him, that he had committed a schedule
1 offence and that his identity and whereabouts was unknown to the
police prior to the day upon which his arrest was effected.
It is for
this reason that he was unable to apply for a warrant prior to the
day upon which he arrested the plaintiff, as such
warrant would not
have been executed upon.
During
cross-examination, Detective Netshabako conceded that prior to
affecting an arrest that he should verify information obtained
about
the suspect as far as possible and where necessary he should afford a
hearing to both sides before affecting an arrest. He
further conceded
that in the present instance the complainant was paid a visit prior
to the day when the arrest was affected and
gave a description of one
of the suspects, which description was recorded in the investigating
diary of the case docket. He further
conceded that the telephone call
which he testified was made by the complainant was in fact received
by his colleague and that
he was not the recipient, but that his
colleague had relayed the contents of the call to him. As to the
actual pointing out of
the plaintiff, he testified that the plaintiff
was at a distance of 1O metres when he was pointed out by the
complainant but that
the identity of the plaintiff had not been
verified by the complainant after the arrest as she had left the
scene. The witness
also conceded that although he was obliged to
verify the identity of the suspect prior to affecting his arrest that
he did not
do so, as the arrest was preceded by a pointing out by the
complainant and that he was going to interrogate the plaintiff after
having affected his arrest. The witness also denied that at the scene
that he had failed to inform the plaintiff as to the reason
as to why
he had placed him under arrest.
[7]
Constable Abashani Josua Mukona was the
next police officer called as a witness. He in broad terms confirmed
the evidence as tendered
by Constable Netshabako, save for some minor
discrepancies. These discrepancies relate to whom it was who received
the telephonic
call from the complainant, the distance at which the
complainant had pointed out the plaintiff and that the complainant
was told
by Constable Netshabako to leave their vehicle at the time
at which he disembarked their patrol vehicle to go and arrest the
plaintiff.
During cross-examination the witness also testified that
there existed no need for the complainant to identify the suspect
after
the arrest was effected as she had pointed out the suspect
prior to his arrest. He was also adamant that reasonable grounds
existed
to effect the arrest as a prior case of house robbery had
been opened prior to the day when the complainant had pointed out the
suspect. Constable Mukona also denied that when the suspect was
arrested, that the police was remiss in having informed him the
reason as to why they were affecting the arrest.
[8]
The evidence of the plaintiff, Mr
Masefane Phillip Matlou can be summarised as follows: On the day of
his arrest he was walking
within the central district of Musina after
having collected some post from the local post office. As he was
walking along, he
was approached by a vehicle from which two police
officials emerged. They were not in uniform. They had their firearms
drawn. He
was requested to lift his hands in the air and started
questioning as to the contents of the school bag which he was
carrying.
He informed them that he had letters inside the
schoolbag. They identified themselves as police officials and he was
further informed
that he was being arrested for being a suspect. When
he questioned them as to the reason as to why he was a suspect, he
was informed
that they will further explain at the police station. No
further details were given to him as to the reason for his arrest. He
was then transported to the police station and upon arrival he was
informed that he had been pointed out by the complainant as one
of
the suspects who committed a house robbery on 3 December 2013. He was
then further detained at the Musina Police Station as
from the
Thursday and only taken to court the following Tuesday. The plaintiff
described his condition of detention as deplorable.
He was kept in a
holding cell with 15 other detainees and only given a sponge and
dirty blankets to sleep with. The abolition facilities
had no door
and it was very smelly and during his period of detention he was also
assaulted. Following his assault he was threatened
not to report same
to the police as he would be killed if he would do so. Mr Matlou
further testified that he was a 53 year old
married man and a father
of three children. He was a soldier and a member of the South African
Defence Force for the past 25 years.
He further testified that whilst
he was kept in detention, his house was searched which traumatised
his family who desperately
tried to secure bail for him. He also
testified that during his detention at the Police Station he was
almost sexually violated
and because he refused his head was
submerged inside a toilet and flushed.
During
cross-examination Mr Matlou was confronted with the omissions made by
his counsel in having failed to put certain aspects
of his version to
the witnesses of the defendant. Mr. Matlou further conceded that he
could not dispute that he was arrested after
the complainant had
pointed him out to the police officers in question. During
cross-examination he did however concede that he
was a well-known man
in society and that Constable Mukona had even see him the previous
weekend prior to his arrest when he was
officiating a soccer game
being played in the community.
[9]
This then the totality of the evidence
presented before the Court.
[10]
As previously mentioned the defendant carried the onus that the
arrest was justified under the
circumstances. In this regard it is
apposite to record the provisions of section 40(1) (b) of the
Criminal Procedure Act, which
reads as follows:
Section 40(1) (b).
'(1) A peace officer may without a warrant
arrest any person-
(a)
....... ... .. .... ... ... ........
....... ..... ............... ..................... ..... ..;
(b) whom he reasonably suspects of having
committed an offence referred to in Schedule 1 other than the offence
of escaping from
lawful custody;
.........
..... ............ .................. ............. ........
.......... ..... ....
·················································································
[11]
It should also be mentioned, the
subsections listed under section 40(1) clearly envisages various
circumstances which permits the
carrying out of an arrest without a
warrant by a peace officer and it thus follows reliance can be placed
on either one or more
of such subsections provided all requirements
are met as listed in a specific subsection.
COMMON ISSUES
[12]
The following facts were undisputed
between the parties:
12.1
The arrest of the plaintiff was carried
out by members of the South African Police Service acting within the
course and scope of
their employment with the defendant and that the
arrest of the plaintiff was carried out without a warrant and
pursuant to a pointing
out having been made by the complainant.
12.2
Following the arrest of the plaintiff
that he was further detained at the Musina Police Station until his
release on his second
court appearance.
ANALYSIS
OF DEFENCE: UNLAWFUL ARREST AND DETENTION
[13]
In Duncan v Minister of Law and Order
1986 (2) SA 805
at 818F-H, The Court established the jurisdictional
facts which must exists and be proven before an arrest can be
effected without
a warrant based on a reasonable suspicion. These
jurisdictional facts are listed as follows:
13.1
The arrestor must be a peace officer;
13.2
The peace officer must entertain a
suspicion;
13.3
It must be a suspicion that the arrestee
committed a Schedule 1 offence and
13.4
The suspicion must rest on reasonable
grounds.
[14]
To decide what a
reasonable
suspicion
is , there must be
evidence that the arresting officer formed a suspicion which is
objectively sustainable .
[5]
[15]
In addition thereto, the circumstances
giving rise to the suspicion must be such as would ordinarily move a
reasonable man to form
the suspicion that the arrestee has committed
a schedule 1 offence. In the decision Mabona and Another v Minister
of Law and Order
and Others
[6]
Jones J, said the following:
'Would
a
reasonable man in the second
defendant's position and possessed of the same information have
considered that there were good 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 this 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,
i.e. 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 sufficient high quality
and cogency to engender in him
a
conviction that the suspect is in
fact guilty. The section requires suspicion but not certainty.
However, the suspicion must be
based upon solid grounds. Otherwise,
it will be flighty or arbitrary and not
a
reasonable suspicion.'
[16]
The peculiar circumstances of a
particular case the arresting officer is presented with will
therefore determine whether such suspicion
would be reasonable or
not. The test as to whether the suspicion of the person effecting the
arrest is reasonable must be approached
objectively.
[7]
[17]
Furthermore, in general the object of an
arrest must be to bring the arrested person before a court to be
charged, tried and then
either convicted or acquitted. See in this
regard the decision Kotze v Minister of Safety and Security
2012 (1)
SACR 396
(GSJ) at [28]. But if the person effecting an arrest is a
peace officer, and he entertains a reasonable suspicion that a person
has committed a First Schedule offence, it is not necessary that he
intends to bring the arrested person before a court in order
to
charge him. It is sufficient in such circumstances to intend to
detain the suspect in order to first investigate the case and
then,
depending on the result of the investigation, to either bring him
before a court to be charged or release him. This qualification
of
the general rule on the one hand results from the element of
uncertainty implicit in the concept of 'suspect' in section 40(1)(b).
[18]
The question to then be answered; is
what was the reasonable suspicion entertained by Constable Netshabako
on the day in question?
On his evidence he did not receive the
telephone call made to the station by the complainant but rather his
colleague. Following
this report he requested his colleague to
accompany him to the central business district in order to go and
effect an arrest. On
his testimony, the plaintiff was pointed out by
the complainant at a distance of about 10 metres whereby he merely
approached the
plaintiff and excused the complainant prior to
affecting the arrest. On his testimony no personal details were asked
of the plaintiff,
such as his address, his name or even anything
about his whereabouts on the evening that the alleged offence was
committed. On
the day and prior to affecting the arrest the plaintiff
was merely asked as to the contents of the schoolbag, which he was
carrying.
Constable Netshabako, clearly held the view that
verification in relation to the identity of the plaintiff was going
to take place
after the arrest was effected.
[19]
This, the court finds to be improbable.
In the present instance the complainant was present and seated inside
the vehicle of the
police prior to the arrest having been affected.
It therefore created a favourable and most conducive opportunity for
the arresting
to analyse and verify the information at his disposal
as the complainant in the present instance was present. This
verification
however the arresting officer failed to do and it
follows that it cannot be concluded that a reasonable suspicion was
indeed formed
by him before he effected the arrest.
[20]
As the defendant carried the
onus
to justify the arrest of the
plaintiff and as the evidence presented before me, could not
establish such a justification, I cannot
but conclude the arrest of
the plaintiff was unlawful and thus rendered her subsequent detention
also unlawful.
[21]
As to the conditions under which the
plaintiff was detained no evidence in rebuttal was presented by the
defendant. A court in determining
the amount of damages to be awarded
for a person's deprivation of liberty falls within the discretion of
the court.
[22]
In the decision Minister of Safety and
Security v Tyulu
2009 (5) SA 85
(SCA) para 26 at 930F the Supreme
Court of Appeal expounded on the various factors to be taken into
account by a court in making
a determination for the appropriate
award to be given by a court. To list but a few, a court will
consider the circumstances under
which the arrest in question
occurred, the standing of the plaintiff, the importance of the right
of personal liberty, the injury
suffered by the plaintiff and his
conditions of detention and period of detention. To all these factors
the plaintiff presented
evidence before this Court.
ORDER
[23]
Given the totality of the evidence
presented before this court and having regard to the relevant case
law on point I am of the opinion
the following award would be
appropriate under the circumstances:
23.1
The First Defendant will be liable to
pay the Plaintiff the amount of R 300 000.00 (Three Hundred Thousand
Rand) within thirty days
in respect of the Plaintiff's claim.
23.2.
ln the event of the aforesaid amount not
being paid timeously, the First Defendant shall be liable for
interest on the said amount
at the rate of 10% per annum, calculated
from 15 (fifteen) calendar days after the date of this order, to date
of final payment.
23.3.
The First Defendant is ordered to pay
the Plaintiff's party and party costs in respect of the determination
of the issues of merits
and quantum on the prescribe High Court party
and party scale, either taxed or agreed, up to and including date
hereof, which costs
will inter alia include but is not limited to:
23.3.1
The
costs of counsel for attending to the trial as well as his costs for
preparation for trial, drafting for pre-trial minutes,
preparing for
the pre-trial conference and attending the pre-trial conference;
23.3.2
The
costs of the Plaintiff's attorney and local correspondent, which
costs inter alia include but not limited to:
23.3.2.1
The costs of the preparation of the pleadings, notices, pre-trial
discovery,
court orders and trial bundles as per the directive,
including the indexing, pagination and preparation and preparation
thereof
and providing copies of same to the Honourable Court, the
First Defendant and the Plaintiff's counsel;
23.3.2.2.
Necessary travelling costs and expenses (time and kilometres;)
22.3.2.3.
Preparation for trial and attendance at court which shall include all
costs previously
reserved;
23.3.2.4.
The costs of attendances to all pre-trial conferences and drafting of
all pre-trial
minutes;
23.3.2.5.
The reasonable travelling and accommodation costs of the Plaintiff,
who is hereby
declared a necessary witness;
23.3.2.6.
The costs of the interpreter for the Plaintiff.
23.4
The following provisions will apply with
regards to the determination of the aforementioned taxed or agreed
costs:
23.4.1
The
Plaintiff shall, in the event that costs are not agreed, serve the
notice of taxation on the First Defendant's attorney of record;
and
23.4.2
The
Plaintiff shall allow the First Defendant fourteen (14) court days to
make payment of the taxed costs;
23.4.3
In
the event that payment is not affected timeously, the Plaintiff will
be entitled to recover interest at the rate of 10% per annum
on the
taxed or agreed costs from date of allocator to date of final
payment.
23.5
The amounts to be paid mentioned above
shall be paid into the account of the Plaintiff's attorney of record
ERWEE INCORPORATED,
by direct transfer into their trust account,
details of which are the following:
NAME: ERWEE ATTORNEYS INCOPORATED
BANK: STANDARD BANK
ACCOUNT NUMBER: [….]
BRANCH CODE: MUSINA 05 25 49
REFERENCE: HE/MK/ES0051
23.6
When effecting payments, the above
mentioned reference is to be quoted.
23.7
It is recorded that there exists no
contingency fee agreement.
COLLIS
J
JUDGE
OF THE HIGH COURT
Date of Hearing:
06 December 2018
Date of Judgment:
12 July2019
Counsel for
Plaintiff:
Adv. M. Fourie
Instructing
Attorney for Plaintiff:
Erwee lncoporated
Counsel
for Defendant:
Adv. B. Vibi
Instructing
Attorney for
First
Defendant:
State Attorney Pretoria
[1]
Lembo v African National Congress
2002 (5) SA 668
(SCA) at para 32
[2]
Minister of Law and Order and Others v Hurley and Another
1986 (3)
SA 568
(A): dictum at 589E-F applied
[3]
Act 51 of 1977
[4]
See in this regard the provisions of Section 40(1)(b).
[5]
Mvu v Minister of Safety and Security & Another 2009 (2) SACR
(GSJ) at [9]
[6]
1988 (2) SA 654
(SE): dictum at 658E-G applied
[7]
See in this regard R v Van Heerden
1958 (3) SA 150
(T) at 152E