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[2019] ZAGPPHC 308
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Sungisai and Another v National Prosecuting Authority and Another (62274/2012) [2019] ZAGPPHC 308 (17 July 2019)
IN THE HIGH COURT OF SOUTH
AFRICA
GAUTENG DIVISION, PRETORIA
(1)
REPORTABLE:
NO
(2)
OF
INTEREST TO OTHER JUDGES: NO
Case No: 62274/2012
17/7/2019
In
the matter between:
S
SUNGISAI
1
ST
PLAINTIFF
S
THOMANI
2
ND
PLAINTIFF
And
THE
NATIONAL
PROSECUTING
1
ST
DEFENDANT
AUTHORITY
OF SOUTH AFRICA
MINISTER
OF
POLICE
2
ND
DEFENDANT
JUDGMENT
RANGATA
AJ,
Introduction
[1]
This is a claim for damages instituted
by the first Plaintiff, Mr S. Sungisai and second Plaintiff, Mr S
Thomani against the Minister
of Police ( 2
nd
Defendant) for Unlawful arrest as well as claim for malicious
prosecution against the National prosecuting Authority (1
st
Defendant). The Plaintiffs' claims were brought separately under case
number 62274/2012 and 62275/2012, respectively, which cases
were
subsequently consolidated under case number 62274/2012.
[2]
It is the Plaintiffs' claim that on the
13
th
August 2010 at around 20h00 and at Musina, Limpopo province, they
were unlawfully arrested without a warrant of arrest by Warrant
Officer S.J Sathekge, a member of the South African Police Office,
for allegedly having committed the following criminal offences
in the
presence of a police officer:
(a)
Attempted Murder
(b)
Obstructing the police from performing
their duties
(c)
Failing to comply with the instructions
of a police officer,
[3]
Subsequent to the arrest of the
Plaintiffs, they were detained until the 16th of August 2010, on
which date both Plaintiffs appeared
in the Musina Magistrate's Court.
The criminal matter was postponed to the 23
rd
of August 2010. The Second Plaintiff was released on bail on the 23
rd
of August 2010. The First Plaintiff released on bail on the 24
th
of August 2010.The Plaintiffs claim that the First Defendant
instituted the proceedings against them without reasonable and
probable
cause. Further that it acted with malice and animus
injuriandi.
[4]
By agreement between the parties, the
merits and quantum was to be separated. The matter proceeded only on
the merits.
[5]
At the commencement of the trial, legal
representative for the Plaintiffs addressed the court on compliance
with Section 3 of Act
40 of 2002 as previously raised by the
Defendant. The Defendant conceded that the Plaintiffs complied with
the requirements of
section 3 of Act 40 of 2002. The Defendant will
not be proceeding with the special Plea of non-compliance against the
Plaintiffs
due to compliance, such application was withdrawn.
Background
[6]
The First Plaintiff testified that on
the 13t h August 2010 he went with his friend Mr Thomani, the second
Plaintiff to visit his
sister, whom was at the time working at a farm
at the Malala area, i.e. ZZ2. They went to the farm, using private
lifts which they
had to hike. They spent the afternoon with his
sister until around 17h00. On their way back they went to the hiking
spot wherein
they stopped a BMW. As the driver of the BMW stopped,
they got into the vehicle, then they discovered that the driver was
Michael
Sephuma. They both knew Mr Sephuma.
[7]
They proceeded to drive on the Malala 2
road, which is a gravel road, travelling towards the Tshipise/ Musina
tarred road. As they
were travelling he noticed a bakkie parked on
the right side of the road, facing the direction that they coming
from and it was
dark. He noticed a person holding a torch, flickering
it up and down. Mr Sephuma stopped the Motor Vehicle. The person who
stopped
the vehicle, a police officer started to shoot at their
vehicle on the right front bumper as well as the rear right wheel.
The
officer approached their vehicle and instructed them to alight
and lie on the ground. Whilst lying on the ground he was handcuffed
together with the 2nd Plaintiff, with one handcuff. Mr Sephuma was
handcuffed alone. They were assaulted by the police.
[8]
He testified that the police officer
took Mr Sephuma to the side and spoke to him, although he could not
hear what they were talking
about. He confirmed that a Range Rover
motor vehicle stopped at the scene, shortly after they had stopped.
The driver of the Range
Rover informed the police officer that the
BMW drove in front of his motor vehicle. Further that at some stage
he had attempted
to pass the BMW and the driver blocked him from
overtaking, which he (1
st
Plaintiff) denied.
[9]
They were arrested on the 13th August
2008 and appeared in court on Monday, 16 August 2010. The case was
remanded to 23
rd
August 2008 for formal bail application. On the 23rd August 2008 Mr
Thomani and Mr Sephuma were released on bail, whilst his bail
granted
the following day, 24
th
August 2008. They had at least five court appearances before the case
was withdrawn on the 21 June 2012. He stated that he was
unemployed
at the time of the incident.
[10] The
second Plaintiff, Mr Thomani, testified that on the 13
th
August 2010, he accompanied his friend, the first Plaintiff to see
his sister at her place of employment, ZZ2 farm. On their way
back to
their place of residence, they got a lift from Mr Sephuma, who was at
the time driving a BMW. He recognised Mr Sephuma
as someone he knew.
He stated that Mr Sungisai was not working at the time of the
incident, as a result he could not confirm if
Mr Sephuma could be Mr
Sungisa'is employer.
[11]
As they were travelling towards Tshipise
/ Musina road, he saw the police officer who was flickering the torch
up and down for them
to stop. The police vehicle was about 50m from
their vehicle when he noticed the flickering light of the torch for
the first time.
As the driver of their vehicle stopped after being
ordered to do so, the police officer started shooting at them, with 2
to 3 shot
fired to the front bumper as well as one shot to the right
rear wheel, whilst shouting for them to get out of the vehicle. He
instructed
them to lie on the ground. The police officer was outside
the vehicle when he was shooting at the BMW.
[12]
He confirmed that the police officer who
was flashing the torch was wearing reflective clothes. When asked if
he saw a Nyathi combi,
which was travelling ahead of the BMW, he said
that did not see it, he only saw some dust on the road. He confirmed
that there
was a Range Rover that was driving behind the BMW. He
denied the allegation by the driver of the Range Rover that Mr
Sephuma blocked
him from passing their vehicle. He denied any
wrongdoing as there were just passengers.
[13]
For the Second Defendant, Warrant
Sathekge testified that the 13
th
August 2010, around 19h00 him and his colleague, Warrant Officer
Lefila ("Lefila") received information that two vehicles
were loading illicit cigarettes at the Malala Drift Road near Musina.
They went closer to the T-junction where the Malala Drift
Road joins
the Musina-Tshipise Road and parked their vehicle on the side of the
road. Their vehicle was fitted with a flashing
blue light and the
hazards were on. They were wearing reflective clothing. They had a
torch which they used to flicker for vehicles
to stop. Their vehicle
was parked on the right side of the road with its front part inside
the right road facing the left lane,
across the road.
[14]
Whilst waiting, he stood inside the
road. At that time he noticed lights of a motor vehicle approaching
from the gravel road, travelling
towards the tarred road. He used the
flashlight (torch) to indicate to the motor vehicle that it must
stop. He identified the motor
vehicle that was approaching as a
combi. Despite the instruction to stop, the Cambi continued to drive
at a high speed. He had
to jump out of the road to avoid being hit by
the combi. He started to shoot at the combi but could not get it to
stop.
[15]
Immediately thereafter he noticed
another motor vehicle approaching from the same direction where the
combi approached. He did the
same thing by flashing the torch for the
vehicle to stop. Warrant officer Lefila was also flashing the blue
lights. Whilst flickering
for the BMW to stop, the vehicle continued
to drive at high speed straight towards him and he had to jump out of
the way. He started
to shoot at the BMW until it came to a
standstill. After the BMW had stopped, three African males go
alighted. They were arrested
for attempted murder, obstructing police
from doing their duty and not complying with police instructions.
[16]
The BMW was about 20m in front of him
when he realised that it was not going to stop and he started
shooting. It had already passed
the lights of the stationery police
vehicle, and entered the section of the road that was unlit. As a
result it was dark and he
could not see who the driver of the BMW
was. He shot the BMW at the right rear wheel and it stopped. The area
where the BMW stopped
was dark and he could not see who the driver
was. A Land Cruiser approached from the same direction that the BMW
approached from.
It stopped at the scene and the driver informed them
that he was driving behind the BMW. Further that at some stage whilst
following
the BMW, he attempted to pass it, however the driver
blocked him from doing so.
[17]
Mr Du Plessis testified for the first
Defendant that he was the prosecutor at the Musina Magistrate's Court
on the morning of the
16th of August 2010, the day when the
Plaintiffs appeared in Court for the first time. He perused the
docket and considered its
contents, i.e. Warning statements of the
Plaintiffs as well as that of Mr Sephuma. He noticed that it was only
the first Plaintiff
who made the statement whilst the others refused
to do so. He could not confirm as to whether the photos of the scene
were taken,
however he confirmed that it is standard procedure that
photos would have been taken, further that there was an investigator
assigned
to the case.
[18]
He considered the investigation diary
wherein he noticed that instructions were given to the investigating
officer for further investigation
to be done, including obtaining
information regarding the combi that drove off from the scene. He was
also provided with the profile
system, indicating the criminal
records of the Plaintiffs which confirmed that they had previous
convictions of contraventions
of the Customs and Excise Act, No 91 of
1964. He further noted that the First Plaintiff is a Zimbabwean and
had provided an address
in Zimbabwe. He requested that the matter to
be postponed on the 16th August 2010 , for the further investigation
to be done and
to confirm the addresses of the accused. The case was
postponed to 23rd August 2010.
[19]
He further considered the statement of Mr C Theunissen, the driver of
the Land Cruiser
vehicle who stated that he followed the combi and
BMW He attempted to catch up with the combi, driving in the direction
of the
roadblock. The combi overtook the BMW, Thereafter the driver
of the BMW began to block his way in order to prevent him from
overtaking.
Mr Theunissen informed the police officers at the scene
that the BMW was escorting the minibus and blocking the way for him
to
overtake. He also considered the statement of Warrant officer
Lefila, which corroborated the statement of Warrant officer Sathekge
in all material facts.
[20] The
facts outlined above informed his decision to proceed with the
prosecution. The Second Plaintiff
and Mr Sephuma were granted bail on
the 23
rd
August 2010. As for the first Plaintiff the case
was postponed to the 24th August 2010 for the finalisation of his
bail application.
From the docket he confirmed his suspicion that the
BMW was an escort vehicle. Given the previous convictions of the
Plaintiffs
of smuggling illegal cigarettes as well the fact that the
other two witnesses did not make statement , he came to a conclusion
that they were all acting on common purpose, further that it was not
known as to who the driver of the BMW was. The accused were
charged
in Common purpose and common intent and were kept in custody, so that
investigation could be done.
[21]
Mr Mostert testified for the first
Defendant that during March 2011 he was the senior public prosecutor
for the region of Musina.
The docket was submitted to him to decide
whether a prosecution should be instituted. He stated that from his
experience, Malala
Drift Road is known as a smuggling route and the
modus operandi used by smuggling syndicates. He decided that a
prosecution should
be instituted against both Plaintiffs and the
third accused. It was then decided that the Plaintiffs and third
suspect should be
charged with (a) attempted murder and (b)
obstructing the police in the performance of their duties, being a
contravention of section
67(1) of the Police Service Act, No 68 of
1995.
Issues
[22]
The court will deal with the following
issues:
(a)
Whether the BMW adhered to the
instruction by Police Officer to slow down and stop, when instructed
to do so;
(b)
Whether the shots were fired at the BMW
whilst it was moving or stationary;
(c)
Whether Warrant officer Sathekge and/or
Lefila knew who the driver of the BMW was.
(d)
Whether the Defendant acted with
reasonable and probable cause
The law
[23]
Section 40(1) of the Criminal Procedure
Act, 51 of 1977 ("the CPA") provides that:
(1)
A peace officer may
without warrant arrest any person-
(a)
Who commits or attempts to commit
any offence in his presence;
(b)
Whom he reasonably
suspects
of having committed an offence
referred to in Schedule 1, other than the offence of escaping from
lawful custody
(c)
...
(d)
(e)
Who
is
found
in
possession
of
anything which the peace officer reasonably
suspects
to be stolen
property or property dishonestly obtained, and whom the peace officer
reasonably
suspects
of having
committed an offence with respect to such thing.
(j)
Who wilfully obstructs him in the execution of his duty;
[24]
In the case of Beckenstrater v
Theunissen 1955(1) SA 129 (A) 136 A-B it was stated that:
"When it
is
alleged that
a
defendant had no
reasonable
cause
for prosecuting,
understand this to mean that he did not have such information
as
would lead to
a
reasonable man to
conclude that the Plaintiff had probably been guilty of the offence
charged; if,· despite him having such
information, the
defendant
is
shown not to have
believed in the Plaintiff's guilt,
a
subjective
element
comes
into play and
disproves the existence, for the defendant, of reasonable and
probable
cause"
Analysis
[25]
The Plaintiffs' claims are based on the
alleged unlawful! arrested by Warrant Officer S J Sathekge, without a
warrant of arrest.
As a result of the arrest, they were subsequently
detained at the Musina Police Station. It is their claim that their
arrest and
detention were unlawful as pleaded in paragraphs 6.1 to
6.20 of the particulars of claim.
[26]
Officer Sathekge and his colleague
officer Lefila receive a tip-off about an illegal activity that was
taking place at the Malala
2 road. In his testimony, Officer Sathekge
confirmed that as they arrived at the Junction of Tshipise/ Musina
road, with Malala
gravel road, after positioning themselves, they
noticed lights approaching from the direction of Malala road. They
had no reason
to shoot at any vehicle, unless there existed a reason
to do so. At that time he was standing on the road surface and
flagging
down the approaching traffic with a torch. He noticed that
the approaching vehicle which was identified as a "Nyathi"
combi was driving at high speed. He only started shooting at it as it
could not stop despite attempts to instruct the driver to
stop.
Having failed to get the combi to stop, he noticed another motor
vehicle, which was later identified as a BMW, approaching
from the
same direction as the combi. He made attempts to stop the BMW by
flashing the torch
[27]
Whilst in the process of stopping the
BMW, the vehicle almost ran him over, which necessitated for him to
jump out of the way and
he started shooting at it. The Plaintiffs
denied seeing a combi driving ahead of their motor vehicle at any
stage. The Officer
was consistent in his testimony that he only
started shooting at the combi when he could not to get it to stop.
Police officers
are empowered by the provisions of
Section 40(1)
of
the
Criminal Procedure Act, to
arrest such people that interfere in
the execution of their duties. They had a reasonable suspicion that
the combi, refused to
stop as it might have been the vehicle carrying
illegal goods. When the BMW approached, observing the similar pattern
of not stopping,
they had to force them to stop.
[28]
Although the Plaintiffs testified that
they did not see the combi, an independent person, driving the land
Cruiser confirmed that
he saw it. Warrant Ofiicer Sathekge testified
that a land cruiser vehicle following the BMW had stopped at the
roadblock shortly
after the occupants of the BMW alighted; he
confirmed that he saw the combi. Although the driver of the land
Cruiser did not testify,
both Plaintiffs conceded to the land Cruiser
stopping at the scene. This aspect could not be taken further in the
absence of the
land Cruiser's testimony.
[29]
The question is whether the BMW driver
refused to stop when instructed by the police officers. Warrant
Officer Sathekge testified
that the drivers of both the combi and BMW
refused to slow down at the roadblock and they accordingly had no
choice other than
to fire shots at the motor vehicles in an attempt
to stop or slow them down. Officer Sathekge had to take evasive
action so he
could avoid being ran over by both the combi and the
BMW. It is not disputed that Sathekge was wearing reflecting clothing
and
had a torch with which he indicated to the approaching vehicles
to slow down and stop. The Plaintiffs also confirmed that the police
officers were visible, as they were wearing reflective clothes.
[30]
The second Plaintiff confirmed that the
SAPS vehicle was marked on the sides. From the version of the
Plaintiffs, police presence
on the road seems to have been visible.
The Plaintiffs could not answer the court as to what would have made
the police officers
to shoot at them, if they had followed the
instruction to stop. There is sufficient evidence to support that the
driver of the
BMW refused to follow the instruction of the police to
stop when instructed to do so.
[31]
The testimony of Warrant Sathekge was
consistent, starting from the time they were tipped of an illegal
activity that was about
to take place at the Malala-Drift road to the
time of the arrest. Given the number of illegal activities that are
reported to be
taking place on that road, they had to secure the road
and stop vehicles approaching. The police vehicle was well lit, with
the
torch that was supposed to caution motorists of police presence.
[32]
Same cannot be said when it comes to the
evidence of the Plaintiffs. Firstly they could not corroborate each
other's version as
to when they first saw the Police vehicle.
Although the second Plaintiff conceded that the police vehicle was
marked they could
not state why they did not see the vehicle
timeously. Again when asked as how many shots were fired at the BMW,
they had different
versions. The First Plaintiff made a statement to
the police, wherein he stated that the police officer fired one shot
at their
vehicle whilst inside the bakkie. He later changed his
version that the police officer was outside the vehicle when he shot
at
the BMW. He testified that although the police officer approached
the driver 's door when he ordered then to alight from the vehicle,
the police did not know who the driver of the BMW was, the list goes
on.
[33]
The Plaintiffs stated that as they were
both not the drivers, only the driver of the BMW was to be arrested.
However, from the evidence
of the Plaintiffs it is supported that
there was no way that the police officers could have known who the
driver was. The BMW drove
past the section of the road that was lit.
The driver as well as the passengers had already alighted from the
vehicle when the
police officer approached them. The second Plaintiff
as well as Mr Sephuma did not make statements to the police. There
was no
way that the police officer could have correctly guessed who
the driver of the BMW was, hence all the passengers were arrested and
charged in common purpose.
[34]
It is my vi·ew that the
Plaintiffs were lawfully arrested in accordance with the provisions
of
section 40(1)
(a) and/or (b) and/or (e) and/or U) of the Criminal
Procedure Act, 51 of 1977 ("the CPA"). The 2nd Defendant
had a reasonable
suspicion of the Plaintiffs being involved in an
illegal activity. The Plaintiffs ignored the instruction from the
police officer
to stop and almost drove over him. It is therefore my
view that the arrests of the plaintiffs was lawful and that there was
a good
cause for the arrests to be effected.
[35]
The plaintiff's further claims that they
were unlawfully prosecuted. For the Plaintiff to be successful in a
claim for malicious
prosecution , they must proof on a balance of
probabilities the following:
(a)
The Defendant instigated the
proceedings
(b)
The defendant have acted without
reasonable and probable cause
(c)
The defendant have acted with
malice
(d)
The defendant prosecution failed.
[36]
It is the duty of the Prosecutor to
carefully consider all the versions of the witnesses, statements and
determine whether there
are contradictions, if so, establish whether
they are material or not before making a decision to prosecute. The
First Defendant
should satisfy itself that there is reasonable and
probable cause, not just a prima facie case against the Plaintiffs.
The prosecutor
has a duty to interrogate the docket in its entirety
and apply his mind properly before he makes a decision to prosecute.
[37]
The two witnesses on behalf of the First
defendant, Du Plessis and Mostert, both took decisions to proceed
with the prosecution
against the Plaintiffs, albeit at different
stages. This they testified was decided after taking into account
the contents
of the docket as testified. Du Plessis stated that
on 16
th
of August 2010, when the Plaintiffs appeared in Court for the first
time, he had access to the docket. Further that the First Plaintiff
is a Zimbabwean and inter alia had provided an address in Zimbabwe.
He applied for a postponement in terms of the provisions of
section
50(6) (d) of the CPA, in order for further investigation to be done
and for the investigating officer to verify the addresses
of the
accused. It was on this basis that the case was postponed for a
period of seven days until the 23
rd
of August 2010.
[38]
On the 23rd of August 2010 he made the
decision to proceed with the prosecution. The Second Plaintiff and
the third accused were
granted bail on the said date and the criminal
case was postponed till the following day, on which date First
Plaintiff was also
granted bail.
[39] Du
Plessis was a credible witness; he was consistent in the process that
he followed in evaluating
the facts of the case. Also having worked
along the Malala Drift road, being aware of the illegal activities
taking place, which
he testified is a well-known smuggling route and
the modus operandi of smugglers, they use two vehicles, the one
transporting the
illicit goods and the other acting as an escort in
order to protect the vehicle transporting the illicit goods.
[40] It is
my view that there are reasonable grounds for the prosecution to have
decided to prosecute the
Plaintiffs, based on the circumstances
around the case. The First Plaintiff was not a credible witness. He
was not honest about
his relationship with the driver of the BMW.
When asked about him being employed by the driver of the BMW, he
answered in the negative.
He only admitted to it when he was referred
to his statement, wherein he stated that he is employed by the family
of Mr Sephume.
It was the evidence of the Plaintiffs' that they are
friends, however the second Plaintiff testified that he did not know
that
the first Plaintiff was employed, further that he was employed
by Mr Sephume. If they claimed to be friends, it is very doubtful
that he would not have known that his friend was working. It is my
view that it is too much of a coincidence that the Plaintiffs',
find
themselves hiking a BMW at night, which happens to be the Motor
Vehicle of the First Plaintiff’s employer.
[41]
I cannot find that the decision by Du Plessis to proceed with the
prosecution as well as the
decision by the senior Prosecutor, Mr
Mostert, who decided to institute a prosecution, was not reasonable
and fair. Mr Mostert
corroborated the version of Mr Du Plessis on his
experience on the Malala Drift Road known was a smuggling route and
the modus
operandi used by smuggling syndicates as confirmed by Mr Du
Plessis. The behaviour of the Plaintiffs' when instructed to stop did
not assist. The prosecution had sufficient information pointing the
Plaintiffs to be involved in illegal activities. Their attempt
to
refuse to stop when ordered to do so by police officers, confirmed
that the suspicion of them being involved in illegal activities.
[42]
Having considering the contents of the docket, Mostert decided that a
prosecution should be instituted
against both Plaintiffs and the
third accused. He decided that the Plaintiffs and third suspect
should be charged with (a) attempted
murder and (b) obstructing the
police in the performance of their duties, being a contravention of
section 67(1) of the Police
Service Act, No 68 of 1995.Further. based
on his personal experience of the modus operandi used by the
smuggling syndicates he
decided to charge the three accused on the
principle of common purpose. I therefore cannot find that the conduct
of either Du Plessis
or Mostert were unreasonable or grossly
negligent to support a claim for malicious prosecution.
[43]
I therefore make the following order;
(a)
The plaintiffs' claims against the Defendants are dismissed with
costs.
B. RANGATA, AJ
ACTING
JUDGE OF THE SOUTH GAUTENG
HIGH
COURT, JOHANNESBURG
Heard
on 20 May 2019
Date
of Judgement: 17 July 2019
Counsel
for the Plaintiffs: Advocate N Swart
Counsel
for the Defendants: Advocate NMW Van Zyl SC.