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[2019] ZAGPPHC 355
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Moleko v Minister of Police and Another (32378/2016) [2019] ZAGPPHC 355 (5 August 2019)
IN THE HIGH COURT
OF SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
CASE
NO: 32378/2016
MOLEKO BEVAN
KABELO
PLAINTIFF
And
MINISTER OF
POLICE
FIRST DEFENDANT
NATIONAL DIRECTOR OF
PUBLIC PROSECUTIONS
SECOND
DEFENDANT
JUDGMENT
SARDIWALLA J:
INTRODUCTION:
1.
The
Plaintiff claimed for damages arising from an unlawful arrest by the
Defendants.
2.
The
issue before this court is to determine whether the arrest was lawful
and whether the subsequent decision by the second defendant
to
prosecute was reasonable. 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 10 June 2015, the plaintiff was arrested in terms of S40 (1)
(b) of
the
CPA by Constable Abel Sibanyoni and .Sergeant Rebecca
Mathlolokwgane. The
plaintiff was arrested on suspicion of armed robbery.
4.
Counsel
advised this Court that the plaintiff was released on 5 November 2015
on a Section 174 discharge as the prosecution failed
to prove its
case against the plaintiff.
5.
In
the interest of brevity 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
:
6.
It
is common cause that the police officers who arrested the plaintiff
were acting within the course and scope of their employment
as police
officials of the South African Police Services.
7.
The
plaintiff claims to have suffered damage for loss of freedom,
invasion of his privacy and impairment to his dignity in the amount
of R1 500 000, 00. However this Court was requested to only make a
finding on the merits. The aspect of quantum would be dealt
by the
parties at a later stage.
THE
EVIDENCE
:
8.
The
defendants called four witnesses whilst the Plaintiff testified
himself.
CONSTABLE
SIBANYONI
9.
Sibanyoni
testified that on 10 June 2015 he was on patrol duty together with
Sergeant Mathlolokwgane when they received a complainant
that someone
was being attacked by a mob at 1
st
Avenue and Heatherdale. When they arrived at the scene they found the
plaintiff surrounded by the complainant and the community.
They were
told by community members that the plaintiff had robbed the
complainant of her cell phone, attempted to rape her but
that the
victim fought back and as a result he stabbed her with a broken
bottle. He testified that when they arrived at the scene
the
plaintiff had already sustained injuries therefore for his safety he
was removed and placed into the back of their vehicle.
He indicated
that on interviewing a community member and the complainant they both
pointed out the plaintiff as the perpetrator.
He confirmed that
the complainant had sustained visible injuries but that the plaintiff
denied any involvement in the alleged crime.
He thereafter informed
the plaintiff that he was being arrested and the reasons for the
arrest. The plaintiff was taken to the
police station were the
plaintiff was charged. He testified that the purpose of the arrest
was to bring the plaintiff before court.
He further testified that he
had formed a reasonable suspicion after interviewing the community
members and the complainant who
pointed the plaintiff out as the
suspect.
10.
He
testified that he did not recover the weapon as it is not always
possible to recover a weapon as there are instances where
the
suspects dispose of the weapons. He averred that he could
not remember the clothing that the plaintiff wore when
he was
arrested. He re-iterated that he arrested the plaintiff because he
was pointed out to him as the offender. He testifies
that he is
not responsible for charging suspects only arresting them.
SERGEANT
MATHLOLOKGWANE
11.
She
confirmed that she was on duty with Constable Sibanyoni when they
received a complained that someone was being attacked by a
mob on 1
st
Avenue and Heatherdale. She confirmed that they found the plaintiff
surrounded by community members who had tied his hands using
cable
ties. They decided that it was safer to move the plaintiff to the
vehicle. She testified that they questioned the plaintiff
about what
had happened and that he indicated that he had an altercation with a
person who searched him but did not point out that
person to them.
She testified that the complainant pointed out the plaintiff as the
suspect. She indicated that a member of the
police forum was present
but that she did not take his statement. She indicated that she did
not interview the complainant’s
husband. That when they went
back to the vehicle they interrogated the plaintiff but he denied any
involvement in the alleged crime
but did not want to make a written
statement. She averred that she formulated her suspicion by
interviewing community members and
the complainant who all pointed
the plaintiff out as the offender. She testified that the
weapon was not recovered from the
scene of the crime and that none of
the items stolen were found on the plaintiff’s possession. She
also could not state what
the plaintiff was wearing on that day. The
plaintiff was thereafter taken to the Akasi Police Station to be
charged and later to
the clinic for medical treatment. She testified
that the detectives are responsible for charging suspects; it is only
her duty
once a reasonable suspicion is formed to arrest the suspect.
MR
MATHLATSI (NDPP)
12.
He
testified that he is the prosecutor in the matter. He was satisfied
that there was a prima facie case against the plaintiff
and enrolled
the matter for a bail hearing. He testified that he had the
statements of the complainant, her husband and that
of the arresting
office. It was on the information provided that he believed
that there was a case against the plaintiff.
He stated that the
plaintiff was charged with armed robbery and appeared before court on
12 June 2015 where the matter was remanded
to 19 June 2015 for
further investigation. He further testified that after several
postponements for further investigation the
bail hearing was finally
held on 1 July 2015 and was denied on the basis that no exceptional
circumstances existed to permit the
plaintiff’s release on
bail. The matter was then transferred to the regional court. He
indicated that the state had a reasonable
and probable cause to
charge the plaintiff and that it is not necessary for a case to have
exhibits in order to convict as items
can sometimes be lost. He
testified that the reason the plaintiff was not charged with
attempted rape was that the act was not
complete and therefore
insufficient to prove all the required elements. He re-iterated that
upon his assessment of the facts he
believed that there was a case
made out against the plaintiff.
MS
SHIVHAMBU (NDPP)
13.
She
testified that she is the prosecutor in the matter and that she
viewed the docket on 9 September 2015 which included the statements
of the complainant, her husband, the arresting officer and the J88
form. She testified that she was satisfied that there was a
prima
facie case against the plaintiff. She indicated that she did not
investigate the matter further as she was of the view that
there was
sufficient evidence to convict the plaintiff. She averred that the
elements of armed robbery fit the plaintiff’s
case and
therefore it is not necessary for a weapon to be found in order to
secure a conviction. She stated that there was insufficient
evidence
to charge the plaintiff with attempted rape. She re-iterated that she
was convinced that the matter was ready for trial
after she consulted
with the witnesses as they did not contradict each other.
PLAINTIFF
14.
He
testified that on 10 June 2015 he exited a train at Ventersnes train
station at around 13h00 which is a 30 minute walk from Wonder
park
mall where he was headed to submit his resume at one of the retails.
He had in his possession a transparent identity packet
which
contained a red track top, his resume and headphones. In his pocket
he had a black X-touch Samsung phone that his brother
had purchased
for him. He testified that he was wearing a black all-star sneaker,
silver and black t-shirt and navy chinos. Whilst
he was walking he
met a man who demanded to search him and to see his cell phone. The
man accused him of robbing his wife because
he saw the red jacket
that was in his bag. Whilst he was searching for his phone in his
pocket the man struck him with a brick
on the head. He then ran into
the bushes and into someone’s yard to get away from the
complainant’s husband. He used
his t-shirt to stop the bleeding
and put on the red track top. He indicated that he was caught by the
owner of the property and
members of the armed response. The
community thereafter gathered together with the complainant and her
husband where the complainant
pointed him out as the perpetrator. It
was at this stage that the community members assaulted him.
When the police arrived
they removed him from the scene and placed
him at the back of their vehicle. The police then interviewed the
complainant and her
husband who pointed him out as the perpetrator.
He submitted that the police informed him that they were arresting
him for using
a weapon to rob the complainant however no items were
found in his possession or were presented as exhibits during the
proceedings.
He stated that the complainant and her husband were
taken to the police station and was detained at Soshanguvhe Police
station.
After several appearances he was released on a discharge in
terms of Section 174 on 5 November 2015. He testified that he was
legally
represented.
The
Plaintiff's argument
15.
Counsel
on behalf of the Plaintiff persisted with
inter
alia
the
following
arguments:
15.1
The
defendant failed to make a valid defence to the arrest;
The
arresting officer a failed to conduct an investigation in order to
establish the reasonableness of the suspicion and therefore
police
officers had failed to exercise their discretion rationally nor did
they apply their mind to the information given.
There
were mutually destructive versions before the Court;
The suspects'
version was not taken into account;
Counsel referred the
Court to
Mobono
v The State
[1]
where the test
is whether there are good and sufficient grounds for the suspicion;
15.4
Counsel correctly pointed out that the suspicion must be based
concrete
grounds and contended that such grounds were not
The
Defendant's argument
16.
Counsel
for the defendant cautioned the court to appreciate the
following:
16.1 A
peace officer is entitled to arrest without a warrant on the
basis
that it is reasonable to identify the suspect’s involvement.
One does not
require concrete evidence to establish that an
offence has been
committed;\
There
is only a suspicion required, not proof beyond a reasonable doubt;
Counsel
referred to Johannes Papa Kgapola v Minister of Police
[2]
that
apointing out of a suspect was considered pima facie proof
and that under
those circumstances an arrest cannot be said to be
unreasonable.
ANALYSIS
AND FINDINGS:
Section 40(1) of
the CPA gives peace officers extraordinary powers to arrest. Thus
the circumstances when such arrests are made
must be considered
carefully otherwise such arrests are considered to be unlawful.
In
Duncan
v Minister of Law and Order
[3]
,
the Court established that
jurisdictional
facts must exist before such power can be exercised
namely:
i.
the
arrester must be a peace officer;
ii.
the
peace officer must entertain a suspicion;
iii.
it
must be a suspicion that the arrestee committed a schedule 1 offence;
iv.
the
suspicion must rest on reasonable grounds.
19.
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
Minister
of Safety and Security v Sekhoto and Another
[4]
20.
Reasonable
grounds are interpreted objectively and must be of such a nature that
a reasonable person would have had a suspicion
[5]
.
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.
This test was
succinctly summarized in
Mobona
v Minister of Law and
Order
[6]
where
it was established that what is required is suspicion not
certainty.
Such suspicion must make sense otherwise it is frivolous or
arbitrary and not
reasonable.
There must be
evidence that the arresting officer formed a suspicion which is
objectively sustainable
[i]
[7]
.
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
lawfully, 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.
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]
.
It 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.
The crux of the
dispute between the parties was whether the suspicion that
the Plaintiff
committed the offence was established on reasonable grounds.
Objective
test
28.This
test was set out in the
Mabono
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 and 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?
29.
In
evaluating such 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 will not accept it lightly or
withoutchecking 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 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
underlining
[10]
.
30.
In
applying the test objectively the conduct of the two police officers
prior to
effecting
the arrest must be closely examined.
31.
Both
police officers relied on the eye witness's testimonies, the
complainant and her husband. The police officers interviewed the
eye
witnesses personally and had taken their statements and there were no
contradictions. The plaintiff was read his rights at
the scene before
he was arrested and taken to the police station. Both officers
admitted that none of the alleged stolen items
were recovered on the
plaintiff but indicated that this was not necessary for an arrest.
The main objective of the arrest was to
bring the suspect before
Court. Was this sufficient to establish there were reasonable grounds
existed to form the suspicion?
32.
Harms
D
P
in the
Sekhoto
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 made fell within the
range of rationality, the standard
was not breached".
33.
It
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 facts. This requires that the facts
on which the
defence is based must be set out.
”
Onus
34.
It is
well established principle that the onus rests on the arresting
officer to prove the lawfulness of the arrest. In this case
the
defendants have shown that they exercised their suspicion reasonably,
that is they met the fourth jurisdictional requirement
[11]
.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.
35.
Having
regard to the evidence before this Court and in light of the
aforesaid authorities, I am satisfied that a reasonable suspicion
was
established and that it was based on solid grounds. The police
officers did make certain enquiries and investigate the accuracy
of
the information before they acted upon it. All the witnesses
identified the plaintiff as the perpetrator. This Court is thus
in
agreement that the pleadings clearly state the jurisdictional
requirements and the facts supporting thereto. Consequently this
Court is convinced that the arrest was lawful if one has regard to
the conduct of the police officers prior to the arrest. They
had
analysed the testimony independently and relied on eye witness’s
testimony.
Malicious
prosecution
36.
The test for malicious prosecution is set out in
Minister
of Safety and Security v
Moleko
[12]
it
was held that the following must be proven:-
In
order to succeed (on the merits) with a claim for malicious
prosecution, a claimant must allege and prove-
a)
that the defendants set the law in motion (instigated or instituted
the proceedings);
b)
that (the defendants acted without reasonable andprobable cause;
c)
that the defendants acted with “malice ” (or animo
injunandi); and
d)
that the prosecution has failed, (in this case
,
of
course, Mr Moleko was acquitted at the end of his criminal trial and
requirement (d) need detain us no further)the cases of Rudolph
and
others
v
Minister
of Safety and Security
[13]
,
and Minister of Safety and Security v Seymour
[14]
have discussed this issue as well.
a)
that
the defendants set the law in motion (instigated or instituted the
proceedings)
37.
It
is common cause that as result of the plaintiff’s arrest that
the matter was enrolled and criminal proceedings were instituted
against him.
b)
The
defendant had no reasonable or probable cause to do so
38.
The
plaintiff submits that without any evidence from the scene linking
the plaintiff to the crime on a serious charge of armed robbery.
That it was the duty of the defendants to conduct a thorough
investigation to the matter instead of relying solely on the eye
witnesses testimonies. Further that the discrepancies in what
he was wearing should have been enough to warrant a proper
investigation into his identity therefore the prosecution had no
probable cause for instituting criminal proceedings against him.
c)
that
the defendants acted with “malice ” (or animo injunandi)
39.
The
element of intention as proved above required for malice is present.
It has been accepted that a reasonable person in the position
of the
defendants would have taken the same steps to investigate the matter
especially confirming that the plaintiff’s clothes
matched the
description given by the eye-witnesses. There was no effort by the
prosecution to determine with any level of certainty
that the
plaintiff was indeed the person so described or to determine if there
was any possibility of mistaken identity. Even though
the defendants
honestly believed that the plaintiff was guilty simply relying on the
pointing out of the plaintiff is sufficient
in law for an arrest but
insufficient to sustain a conviction. Disregarding the discrepancies
or need for actual evidence to support
their version can only be
considered to have been intended to be malicious. The only
explanation tendered by the defendants is
their reliance on the
plaintiff’s request for mediation, which in any event is in
dispute and cannot be used against him.
This however still does not
answer why without any actual evidence against the plaintiff the
matter was even enrolled for trial.
d)
that
the prosecution has failed.
40.
It
is common cause that the prosecution failed for lack of evidence and
that the plaintiff was discharged in terms of section 174.
41.
Having
regard to the above
I
therefore conclude that the requirements for malicious prosecution
have been met.
CONCLUSION:
This Court's
finding therefore is that the defendants had failed to show on a
balance of probabilities that the prosecution wasn’t
malicious.
43. The
following order is therefore made:
The defence of
unlawful arrest is dismissed;
The defence of
malicious prosecution is upheld;
The Plaintiff is
entitled to such damages as he may be able to prove he sustained
due to the malicious prosecution by
Defendant;
The Defendants
are to pay the costs of this trial.
SARDIWALLA
J
JUDGE OF
THE HIGH COURT
APPEARANCES
Date of
hearing
: 30 April
2019
Date of
judgment
:
05 August 2019
Plaintiff’s
Counsel
:
Adv.: M Mthombeni
Plaintiff’s
Attorneys
: Nobela
Attorneys
Defendant’s
Counsel
: Adv.: B Nodada
Defendant’s
Attorneys :
State Attorney
[1]
1988 (2) SA
654
at 658
[2]
1986 (2) SA 80
at 818 F-H
[3]
supra
[4]
2011 (1) SACR
315
SCA
[5]
R v Heerden
1958
(3) SA 150 (T)
[6]
1988 (2) SA
654
SEC
[7]
Ralekwa v
Minister of Safety and Security
2004
(1) SACR 313
(T)
!
[8]
1 951 (3) SA
10A
[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 and Another v Swart
2012
(2) SACR 226
SCA
[12]
[2008] 3 ALL SA
47
(SCA) at paragraph 8
[13]
2009 (5) S A 94
(SCA) (also at [2009] 3 ALL SA 323 (SCA))
[14]
2006 (6) SA 320
(SCA)