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[2019] ZAECBHC 17
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Malibela v Minister of Police (847/2017) [2019] ZAECBHC 17 (27 August 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, BHISHO)
Case
no: 847/2017
In
the matter between:
LABOUR
KHAYALETHU MALIBELA
Applicant
and
MINISTER
OF POLICE
Respondent
JUDGMENT
CROUSE, AJ:
1.
The plaintiff, Mr Labour Khayalethu Malibela, sues the defendant, the
Minister
of Police, for wrongful arrest and detention.
2.
The defendant accepted the duty to begin and the onus to prove that
the arrest
and detention were lawful. The defendant called one
witness, Captain Sipika. He is the station commander at the Steve
Tshwete Police
Station and was also the arresting officer.
3.
Captain Sipika’s evidence was that he was phoned by the
chairperson of
a community structure on Sunday 2 April 2017 at about
7h30. Information was given that a person was being attacked by the
community
for stock theft. He went alone from his home to the place
where the alleged attack was being perpetrated. There he found a
certain
Mr Akhona Peter. Mr Peter’s hands were tied. He had
open wounds on his face and head and Captain Sipika could see some
bleeding.
The community had already questioned the said Mr Peter
about the stock theft and he had already provided the names of his
co-perpetrators.
The community was angry and threatened to kill the
perpetrators of the stock theft and burn their houses down. Captain
Sipika estimated
that there was a mob of about 100 people. The dog
unit and the flying squad were also present.
4.
After repeating his story to Captain Sipika, Mr Peter took Captain
Sipika and
the rest of the police to the place where a bull was
slaughtered. They found evidence of a slaughter, namely the end of
the bull’s
tail as well as contents of the entrails. Mr Peter
named five others as perpetrators. Mr Peter also informed them that
the group
stole a heifer as well. They went looking for this heifer
amongst other animals, but the heifer was not found. Evidence later
obtained
confirmed that a heifer was indeed stolen from Mr Peter’s
relative.
5.
Captain Sipika and the police proceeded to arrest each of the persons
named as
co-perpetrators. The plaintiff was amongst them. Prior to
the plaintiff’s arrest, Mr Peter told the community as well as
Captain Sipika that the plaintiff’s motor vehicle was used to
convey the stolen bull’s meat after the slaughter. Captain
Sipika established that the plaintiff indeed owned a motor vehicle.
On his arrest the plaintiff denied being part of the group
of
perpetrators. Captain Sipika did not believe him. The plaintiff was
detained from about 11h45 on Sunday 2 April 2017 until he
was taken
to Court on Tuesday 4 April 2017.
6.
Captain Sipika’s testified that he was of the opinion that he
was justified
in arresting the plaintiff and the alleged
co-perpetrators as he suspected them to be part of the group that
stole and slaughtered
the bull. The bull that was slaughtered
belonged to a woman who had lent it to a member of Mr Peter’s
family for breeding
purposes. The members of the community were very
upset and Captain Sipika feared for the lives of the alleged
perpetrators as the
community were highly charged because they had
lost many animals to stock theft.
7.
The plaintiff testified. He is a 51-year-old man. He attended school
up to Grade
12. He testified that the day prior to his arrest he was
involved in a motor vehicle accident. He was experiencing pain and
was
in fact waiting for his brother to take him to the doctor. The
police arrived instead. Mr Peter pointed him out to Captain Sipika
and he was arrested. He did not know Mr Peter, but he knew the other
persons who were arrested with him. They are younger than
him. He
remained in custody for three days and thereafter he was released at
court. The criminal matter has never been proceeded
with.
8.
Other than the pointing out by Mr Peter, the plaintiff’s
version during
his evidence differs completely from the version
presented by Captain Sipika, but this version was never put to
Captain Sipika
during cross-examination. Examples of Captain Sipika’s
evidence which were only denied during the plaintiff’s evidence
are for example:
8.1.
Captain Sipika testified that after the plaintiff was pointed out, he
explained the allegations made by Mr Peter against the plaintiff to
the plaintiff and that the plaintiff denied being involved
in the
stock theft. The plaintiff testified that he was never told of the
charge against him and therefore never denied his involvement;
8.2.
Captain Sipika testified that he arrested the plaintiff for stock
theft.
The plaintiff denied that he was arrested for stock theft, he
only learned about the stock theft charge when he was “forced”
to sign an acknowledgment of his constitutional rights;
8.3.
Captain Sipika testified that Mr Peter was injured. The plaintiff
testified
that he saw Mr Peter during the pointing out and thereafter
during visits to various scenes, yet he did not see any injuries;
8.4.
Captain Sipika testified that the plaintiff was only arrested after
the
police inspected the place where the slaughtering took place. The
plaintiff testified that he was also at this place but he was
not
allowed out of the motor vehicle;
8.5.
Captain Sipika testified that the plaintiff was only arrested after
the
police had searched for the heifer. The plaintiff testified that
he was also at this place but he was not allowed out of the motor
vehicle;
8.6.
Captain Sipika testified that the persons arrested were taken back to
the community to inform the community that they were arrested, but
Captain Sipika did not allow the community close to the police
van,
as he was afraid that the community might overpower the police and
assault the suspects. This was disputed during cross-examination,
but
during his testimony the plaintiff admitted that this had in fact
happened, but then testified he was in another motor vehicle
and the
crowd was able to look at him;
8.7.
Captain Sipika testified that the crowd was angry. The plaintiff
testified
that the crowd was peaceful;
8.8.
Captain Sipika testified that the plaintiff was incarcerated for two
days, whereas the plaintiff (despite his pleadings to the contrary)
testified that he was incarcerated for three days. The plaintiff
testified that he was only released on the Wednesday and not the
Tuesday as testified by Captain Sipika.
9.
In my opinion, Captain Sipika was a credible witness. He could not
remember the
length of time each aspect to his investigation took. He
was criticised for this. In my opinion nothing turns on this. The
fact
that he was not willing to speculate or to tell an untruth
rather adds to his credibility than distracts therefrom, as it was
never
suggested that these aspects of his investigation did not take
place.
10.
In my opinion, the plaintiff was not a good witness. At one stage he
refused to answer questions,
he was impertinent towards the
defendant’s counsel and raised his voice. I had to request him
to answer questions. His version
grew more serious during his
testimony. In cross-examination of Captain Sipika, no allegations of
any adverse consequences of his
arrest were made. During his evidence
in chief the plaintiff stated that the cell was akin to a pigsty, but
did not support this
inference with facts. He also testified that the
other inmates took away their things and then clarified that their
blankets were
taken and if any one of them wanted to sleep they had
to do so without blankets. During cross-examination he stated that
their
shoes were taken. He was vague on the mechanism of this taking,
and rather resorted to being argumentative. During cross-examination
the plaintiff stated for the first time that he informed Captain
Sipika that he had been in pain as a result of his accident the
previous day. It was only after re-examination, when counsel was
given permission to ask further questions after clarification
questions by myself, that the plaintiff stated that after his arrest
he is now experiencing eye problems, whereas before this arrest
his
eyesight was perfect.
11.
I accept that the plaintiff has no onus to prove that his arrest was
unlawful, but I wonder why
the plaintiff’s version did not
include evidence that he had not been involved in the stock theft and
that there had been
no reason whatsoever for his arrest and
incarceration. The plaintiff had rather decided to base his defence
on the fact that Mr
Peter’s allegations to the police would
have been inadmissible in a court of law and that Captain Sipika’s
suspicion
could therefore not have been reasonable, so the argument
went, as one cannot be arrested on inadmissible evidence.
12.
The plaintiff’s arrest was without a warrant. The defendant’s
case is the arrest was
lawful by virtue of the fact that the arrest
was made in terms of section 40(1)(g) of the Criminal Procedure Act
51 of 1977 (CPA),
meaning that the plaintiff’s arrest was by a
peace officer who reasonably suspected him of being or having been in
unlawful
possession of stock or produce as defined in any law
relating to the theft of stock or produce. According to the learned
author
Hiemstra
, this means the police officer held a
reasonable suspicion that a suspect contravened of the Stock Theft
Act 57 of 1959.
13.
It is accepted that stock theft took place. It is accepted that
Captain Sipika was a peace officer.
It must be accepted that Captain
Sipika had a suspicion that the plaintiff had been involved in the
stock theft.
14.
The only question remaining is whether Captain Sipika’s
suspicion was a reasonable one.
15.
In
Mabona
& others v Minister of Law and Order & others
[1]
,
Jones J, dealing with sub-section 40(1)(b) of the CPA, which sets a
similar test as [in] sub-section 40(1)(g), stated:
“
The test of
whether a suspicion is reasonably entertained within the meaning of s
40(1)(b) is objective (S v Nel and Another
1980 (4) SA 28
(E) at
33H). Would a reasonable man in the second defendant's position and
possessed of the same information have considered that
there were
good and 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 his 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, ie 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 sufficiently 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 grounds for the suspicion must be considered to determine whether
the suspicion held by Captain
Sipika was reasonable, meaning that a
reasonable man who possessed the same facts would hold the same
suspicion. This consideration
is of necessity
ex post facto
,
and a court must guard against taking an ivory tower approach.
17.
Prior to
the plaintiff’s arrest on that Sunday morning, Captain Sipika
conducted further investigation. The facts forming
the basis of the
suspicion are plain enough. He was taken to the place where the
bull was slaughtered and he ascertained thus
that Mr Peter had
personal knowledge of the slaughter. Mr Peter also informed of
another animal that was also stolen. He ascertained
whether the
plaintiff had a car to transport the meat as alleged by Mr Peter. Mr
Peter pointed the plaintiff out together with
other suspects.
Admittedly without still further investigation this is not very
strong evidence and might not lead to a conviction
even if Mr Peter
were to become a section 204 witness. Captain Sipika’s hand
was, however, forced to immediately arrest so
that the angry crowd
whose members were aware of the plaintiff’s identity did not
carry out the threat to kill him and burn
down his house. His
evidence was that it would have been impractical in these
circumstances to first obtain a warrant for the arrest.
It was a
Sunday and there was this angry mob. Captain Sipika had to arrest the
plaintiff and the other alleged perpetrators to
ensure the ends of
justice were met. He specifically testified that his purpose in
arresting the plaintiff was merely to bring
him to justice.
Considered holistically, albeit it not very strong evidence, the
facts available to him were sufficient to create
a reasonable
suspicion for arrest. In my opinion, any reasonable police officer
faced with these facts and threats
[2]
would have been found in derelict of his duties had he not effected
an arrest. Captain Sipika’s exercise of his discretion
to
arrest the plaintiff cannot be faulted in these circumstances.
18.
The defendant has proven on a balance of probabilities that the
plaintiff’s arrest was lawfully
made.
19.
Accordingly, I make the following order:
The
plaintiff’s claim is dismissed with costs.
_________________________________
E
CROUSE
ACTING
JUDGE OF THE HIGH COURT
APPEARANCES
For
the Plaintiff :
ADV: S. Nzuzo
Instructed
by
: MT
KLAAS
INCORPORATED
C/o
POTELWA & CO.
17 Arthur Street
KING WILLIAM’S TOWN
Ref.:
Mr Klaas
Tel.:
043 – 721 0612
For
the Defendant :
Adv: D. Pitt
Instructed
by
:
STATE
ATTTORNEYS
C/o SHARED LEGAL SERVICES
34 Alexandra Road
KING WILLIAM’S TOWN
Ref.: Mr Issacs
Date
Heard
:26
August 2019
Date
Reserved
:
26
August 2019
Date
Delivered
:
27
August 2019
[1]
1988
(2) SA 654
(SE)
at 658G-H.
[2]
Minister
of Safety and Security v Sekhoto and another
2010 (1) SACR 388
(FB)
at 398-399 “Were there grounds for infringing upon the
constitutional rights as to security of the person, which every
person has under s 12 of the Constitution? (
Le
Roux v Minister of Safety and Security
supra
para 43.) If a suspect -(i) does not present a
danger to society (ii) will not abscond (iii) will
not
harm self or others (iv) is not in danger of being harmed
by others (v) may be able and be keen to disprove
the
police allegations, arrest will ordinarily not be the appropriate
way of ensuring the suspect's presence in court (
Louw
supra
at 185
d
-
e
).”