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[2019] ZAGPPHC 390
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Bame v Minister of Police (77105/2016) [2019] ZAGPPHC 390 (8 August 2019)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
(1)
REPORTABLE:
YES
/NO
(2)
OF
INTEREST TO OTHER JUDGES:
YES
/NO
(3)
REVISED
CASE
NO: 77105/2016
In the matter between:
BAME
PEARL ITUMELENG
Plaintiff
And
THE
MINISTER OF
POLICE
Defendant
JUDGMENT
RAULINGA J,
[1]
The Plaintiff instituted an action for damages for unlawful arrest
and detention against
the Minister of Police ('the Defendant').
[2]
The matter proceeded on merits only calling the Court to determine
whether or not
the Plaintiff's arrest and detention was lawful. The
Defendant bears the onus to prove that the arrest and detention was
lawful.
[3]
The
Defendant's only witness was Constable Tebogo Maje, who was on duty
when the matter was reported to the Community Service Centre
(CSC) at
Kuruma Police Station.
[4]
Constable
Maje was in the company of four other police officers when the
complaint, Mr Sekgopi, reported a case of housebreaking
and theft of
a television set, laptop and a cellphone. As a consequence, he and
Sergeant Eiman, Constable Schoeman, Constable Metswe
and Constable
Maibelo in the company of the complainant, proceeded to the Mapotong
Village where the stolen property was alleged
to be. The information
of the whereabouts of the stolen property was provided by the
complainant.
[5]
The
complainant identified Olebile and Orapeleng as the suspects who
allegedly stole his television set.
[6]
The
two suspects admitted that they stole the television after they were
requested by the Plaintiff to get a television for her
as hers was
stolen and that she was driving a Red VW Golf GTI with registration
number [….] at the time when she approached
them. Constable
Maje then proceeded to the Plaintiffs home together with the other
four police officers, the complainant as well
as the two suspects.
[7]
After
the Plaintiff had opened the door for them, they entered and
questioned her about the alleged stolen TV. The Plaintiff denied
knowledge of the alleged stolen TV and instead said that the TV in
her house belonged to her friend, who had loaned it to her after
her
television was stolen.
[8]
Constable Maje went to the police vehicle and fetched Orapeleng, one
of the suspects
and brought him into the house. Orapeleng pointed out
the Plaintiff as the person to whom he and his accomplice, Olebile,
had sold
the 1V. After she was pointed out, the Plaintiff suddenly
changed her stance, and informed the police that the TV was at
Mpumelelo's
place.
[9]
Constable
Maje testified that after the Plaintiff indicated that she would take
them where the TV was, he immediately formed a reasonable
suspicion
that she was a suspect of a case of receiving stolen property knowing
it to be stolen. This suspicion he formed after
receiving information
from the two suspects on how the TV was stolen and handed to the
Plaintiff.
[10] He then proceeded
to Mpumelelo's place in the company of the Plaintiff who pointed
out the place
to him. Initially Mpumelelo denied
knowledge of the television. It was only
after he was taken
to the police station that he did tum around and
indicated that the stolen television was at his place and that he had
swapped
his television with
the Plaintiff. The television
was
found at Mpumelelo's place in an outside room. This
was after a thorough search was done in the main house to no avail.
[11] Under
cross-examination, Constable Maje testified that he interviewed one
Ntaoleng who indicated to
him that he was requested by the two
suspects to transport the television, which he did. Ntaoleng did not
know that the television
was stolen.
[12] He also testified
that according to the information he received from the two suspects,
the Plaintiff
requested them to get a television for her. The
suspects later stole the television and sold it to her, which she
later exchanged
with Mpumelelo.
[13] The Plaintiff
called the complainant as her witness. His evidence materially
corroborates the evidence
of Constable Maje. He testified that he and
the police went to the two suspects who confirmed that they stole the
television and
sold it to the Plaintiff. He further testified that
the television found at the Plaintiff's place was not his, as his was
a Sansui,
which was the one retrieved from Mpumelelo's place. He also
testified that one of the suspects was brought into the Plaintiff's
house and pointed the Plaintiff as the person they sold the
television to.
[14] The Plaintiff
testified that on 12 January 2016 at about 06h00, four police
officers visited her home.
Sergeant Eiman and Constable Schoeman were
known to her in a previous encounter when they attended to a
complaint when her house
was broken into. The said police officers
were in the company of the complainant, Mr Sekgopi when they entered
her house.
[15] When questioned
about a television which was in her house, she indicated that the
television belonged
to a friend, one Mpumelelo. The complainant told
the police that the said television does not belong to him. She
testified that
female police officers insisted that she had stolen
the television since her vehicle was seen picking up the television
the previous
night. When she denied the allegations, the female
police officers then stepped aside with her and told her that they
would not
arrest her if she tells them where the stolen TV was.
[16] In the process
Constable Maje brought one of the suspects, Orapeleng, who pointed
her out as the person
who bought the television from them and that
she was the driver of a red Golf GTI with registration number [….].
She then
remembered that Mpumelelo and one Lucky went to the township
to organise a television for Mpumelelo the day before. She
volunteered
the information so that they would let her go. She,
together with the police officers, proceeded to Mpumelelo's place as
directed
by herself. She then regurgitated the events that took place
at Mpumelelo's place and the Police Station, leading to the recovery
of the television at Mpumelelo's place.
[17] Under
cross-examination she agreed that Constable Maje was informed by the
suspects that she was the
one who bought the television. She denied
knowledge of the suspects, although one of them pointed her out. She
admitted that she
is the owner of a red Golf GTI with registration
number [….].
[18] The jurisdictional
facts for section 40(1) (b) defence are as follows:
"(i)
the arrester must be a peace officer;
(ii)
the arrester must entertain a
suspicion;
(iii)
the suspicion must be that the
suspect (arrestee) committed an offence referred in schedule 1"
and
"(iv)
the suspicion must rest an reasonable ground”
[1]
[19] The arresting
officer Constable Maje is a peace officer as defined in section 1 of
the Act. This is
not disputed by the Plaintiff and it is common
cause.
[20]
The
arresting officer entertained a suspicion after he was informed by
the suspects that the Plaintiff is the one who bought the
stolen
television from them after she had requested them to obtain a
television for her.
[21]
The
arresting officer had a suspicion that the Plaintiff committed an
offence referred to in Schedule 1 to wit: receiving of stolen
property knowing it to be stolen.
[22]
Although
the Plaintiff testified that she directed the police officers to
Mpumelelo's place because she was threatened with arrest,
the truth
of the matter is that she opted to mention that the television was at
Mpumelelo's place after Orapeleng pointed her out
as the person who
bought the television from them. This was when she realised that
there was no place to hide.
[23]
Constable
Maje in forming a reasonable suspicion before arresting the
Plaintiff, he must have exercised a discretion. In
Shidiack
v Union Govemment
[2]
the following principles were
formulated by Innes ACJ when dealing with discretion:
"Now it is settled law that where
a
matter left to the discretion or the
determination
of a
public
officer, and where his discretion has been bona
fide exercised
or
his
judgment bona fide expressed, the Court will not interfere with the
result. Not being
a
judicial
functionary
no
appeal
or
review
in the ordinary sense of the word would be; and if he has duly and
honestly applied himself to the question which has
been left to
his discretion, it is impossible for a Court
of
law either
to
make him change his mind
or
to substitute its conclusion for his
own. There are circumstances in which
interference would
be possible and right. If for
instance such an officer had acted ma/a fide or from ulterior
motives, if he had not applied
his mind to the matter or exercised
his discretion at all, or if he had disregarded the express
provisions of
a
statute
-
in
such
cases
the
Court might grant relief. But it would
be
unable to interfere with a due and
honest exercise of discretion even if it considered the decision
inequitable for wrong."
[24]
In the
Sekhoto
judgment referred to above, Harms DP stated the
following:
"This would mean that peace officers
are entitled to exercise their discretion
as
they
see
fit, provided that they stay within
the bounds of rationality. The standard is not breached because an
officer exercises the discretion
in
a
manner other than that deemed
optional by the Court. A number of choices may
be
open
to him, all of which may fall
within the range of rationality. The standard is not perfection, or
even the optimum, judged from
the vantage of hindsight and so long
as
the discretion is exercised within
this range, the standard is not breached."
[25] In
Minister
of
Safety
and
Security and Another v Linda
[3]
the Court said the following:
"The question whether the suspicion of
the person effecting the arrest is reasonable must be approached
objectively. A suspicion
inherently involves an absence of certainty
or adequate proof. A police officer is not expected to satisfy
himself to the same
extent as
a
Court. A suspicion can be reasonable
despite there being insufficient evidence for
a
prima facie case.
And in
Shabaan
Bin Hussein and others b Chong Fook Kam and Another
[4]
,
the Pricy Council said:
"Suspicion in its ordinary meaning is a
state of conjecture or
surmise
where
proof is lacking, 'I suspect but I cannot prove.' Suspicion arises at
or near the starting point of an investigation of which
the obtaining
of
a
prima
facie proof is the end.”
[26]
In casu,
Constable Maje did not rush to effect arrest on the Plaintiff, he
investigated the matter thoroughly, by interviewing the two suspects
who provided information to him regarding the events leading to the
theft of the television. He also interviewed the complainant
and one
Ntaoleng who transported the television. The matter did not end
there, when he visited the Plaintiff's house, he was accompanied
by
other police officers and the two suspects. He only arrested the
Plaintiff after Orapeleng had pointed the Plaintiff out and
after she
admitted to the whereabouts of the television. Mpumelelo also pointed
out the television which was hidden away in an
outside room at his
house. All these led to the truth that she bought the stolen
television which was later exchanged for the television
found in her
house.
[27] In my view
Constable Maje exercised a sound discretion which led to the exercise
of a reasonable suspicion.
[28] Moreover, the
Plaintiffs evidence is not credible in that she contradicted herself
in a material respect.
She contradicted herself by testifying that
her house was not searched even though on page 9 of Bundle A she
indicated that the
police officers unlawfully and without consent
searched her premises for the television. She also testified that she
did not give
them permission to enter her premises even though she
has opened the gate as well as the door of her house for them without
being
forced to do so.
[29]
In the premises her claim for damages
against the Defendant must fail.
[30]
The following order is made:
30.1
The Plaintiffs claim for damages is
dismissed.
30.2
There is no order as to costs.
TJ RAULINGA
JUDGE OF THE GAUTENG HIGH
COURT DIVISION
Heard on:
10-12 October 2018
Delivered:
8 August 2019
APPEARANCES
For the
Plaintiff:
Adv. G Edwards
Instructed by:
Geldenhuys Malatji Inc.
For
the Defendants:
Adv. T.T. Tshivhase
Instructed
by:
State Attorney, Pretoria
[1]
Minister of Safety and Security v Sekhoto and Another
2011(5)
SA 367 (SCA) para 6 at 373
[2]
1912 AD 642
at 651-652
[3]
2014 (2) SACR 464
at para 21
[4]
1961(3) A1 ER 1626 (PC)
(1970) AC 942
at 1630