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[2019] ZAECBHC 25
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Kopolo and Another v Minister of Police and Another (82/2014) [2019] ZAECBHC 25 (12 December 2019)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, BHISHO)
CASE
NO: 82/2014
NOT
REPORTABLE
In
the matter between
BUBELE
KOPOLO
First Plaintiff
NTLANGWINI
NGCELWANE Second
Plaintiff
and
MINISTER
OF POLICE
First
Defendant
NATIONAL DIRECTOR OF
PUBLIC
PROSECUTIONS Second
Defendant
JUDGMENT
HARTLE
J
[1]
The plaintiffs seek damages against the
first defendant arising upon their claimed unlawful arrest and
detention; and against both
him and the second defendant for the
alleged malicious prosecution of them. In the latter respect it
was pleaded that the
formal pressing of charges of rape and robbery
which followed the alleged unlawful arrest of the plaintiffs on 29
April 2012 was
effectuated maliciously and without reasonable and
probable cause and that the public prosecutor, acting in concert with
the police,
also “unlawfully, wrongfully and without
justification and/or probable cause” opposed their bail
applications in the
sequel to their arrests.
[2]
The plaintiffs were held in custody, after
their failed bail applications, for an inclusive period of nine
months from the date
of their arrest until 6 February 2013 when the
charges which had been preferred against them were withdrawn.
[3]
Whilst
admitting that the arrest of the plaintiffs was effected without
warrants, the first defendant pleaded that in the case of
each of
them it was justified pursuant to the provisions of section 40 (1)(b)
of the Criminal Procedure Act, No. 51 of 1977 (“CPA”)
in
that the arresting officer, a peace officer as defined in section 1
of the CPA, had entertained a reasonable suspicion, based
on
information she had gleaned during her investigation of a rape
complaint, that the plaintiffs had committed rape, a crime listed
in
schedule 1 to the CPA.
[1]
[4]
To the allegations of malicious prosecution
and the unreasonable resisting of bail, the defendants pleaded a
denial. In amplification
of their plea they claimed that there
was sufficient evidential material to justify the charges and in
respect of the bail application
pointed out that since the plaintiffs
had been charged with a schedule 6 offence, it had been up to
them, in terms of section
60 (11)(a) of the CPA, to adduce evidence
that satisfied the court hearing their applications for bail pending
trial that exceptional
circumstances existed which in the interest of
justice permitted their release. Unfortunately, both had failed
to meet this
threshold. In consequence the defendants denied
that the plaintiffs’ continued incarceration, after their first
appearance
in court, was at the behest of any official of either of
them under the circumstances contended for by the plaintiffs.
[5]
The
plaintiffs themselves both testified and commenced first in order to
meet the evidentiary burden on them to prove the claim
of malicious
prosecution. In order to justify the arrest and to refute the
allegations of malicious prosecution, the defendants
led the evidence
of the arresting officer, a district court prosecutor who represented
the State in the Mdantsane bail court and
the regional court
prosecutor who ultimately made a decision to provisionally withdraw
the charges against the plaintiffs.
Documentary evidence,
including an extract from the relevant police docket and a transcript
of the bail hearings concerning the
plaintiffs, was also entered into
evidence by consent
[2]
[6]
It is common cause that the charges that
the State withdrew against the plaintiffs were never revived by
reason of the fact that
the DNA analysis obtained long after the
docket was opened excluded the plaintiffs as donors of the DNA
material taken from the
complainant’s vulva, vagina, cervix and
vestibule by the doctor who examined her shortly after her rape
ordeal.
[7]
It is plain from the way the plaintiffs
presented their case that the only issue in dispute was whether the
suspicion that the arresting
officer harbored, which led to their
arrest, was reasonable in the circumstances. It further
appeared to be accepted that
such justification, if it existed, would
impact on the question whether there was reasonable and probable
cause for the prosecution
(by the same objective standard of
reasoning) and the legal effect there anent on the bail proceedings.
[8]
Section 40 (1)(b) of the CPA provides that:
“
a
peace officer may without 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.”
[9]
The
requisite jurisdictional facts which must be in existence before the
jurisdiction whether or not to arrest a suspect without
a warrant
are: (1) the arrestor must be a peace officer; (2) the peace officer
must entertain a suspicion; (3) the suspicion must
be that the
suspect committed an offence referred to in schedule 1; and (4) the
suspicion must rest on reasonable grounds.
[3]
[10]
It
is not in contention that the arresting officer, Warrant Officer
Grace Maholwana, is a peace officer within the meaning and
contemplation of section 1 of the CPA and that she had harbored a
suspicion that the plaintiffs committed the offence of rape.
[4]
It is furthermore not in contention that the offence of rape is an
offence listed in schedule 1 to the CPA.
[11]
At
the time of the plaintiffs’ arrest Warrant Officer Maholwana
held the rank of sergeant and was attached to the local Family
Violence, Child Protection and Sexual Offences Unit of the South
African Police Service. It was in this capacity and whilst
on
standby duties that she came to be involved in the preliminary
investigation of the rape complaint against the plaintiffs.
Preceding their arrest, the docket, which it is common cause was one
opened at the Inyibiba Police Station after the alleged rape
of the
complainant (Aphiwe Nomtoto) during the early hours of Sunday, 29
April 2012, was handed to her already complete with the
complainant’s
account of the incident contained in a written statement deposed to
by her at 14h00 on that day. The
gist of her statement is that
at about 02h00 that morning she had had a fight with her boyfriend,
Lubumba. They had argued
about calls she had received on her
phone. He took her phone and threw it down as a result of which
it broke into pieces.
She picked it up but someone else grabbed
it. At this point she was approached by three male persons who
purported to help
in “chasing (her) boyfriend”. She
described what two of them were wearing. The three of them
misled her
by taking a different direction than her boyfriend and
then dragged her off into the bushes where she was attacked and raped
by
them. She claims to have been raped about eight times but
during the ordeal they covered her face with a white cloth so that
she could not see her assailants. She observed them at the
point when they were walking away and significantly identified
them
as “Bubele” and “Guz”, the latter being a
nickname.
[5]
In the
morning when she went to the police station she saw the two men in
the company of each other again in the same clothing
she had noticed
them wearing at the time of the rape. In addition, their shoes
were full of mud. She remembered that
it had been muddy at the
scene of the rape, so this feature was significant to her and
provided confirmation for her of their presence
there. They
(she does not clarify who) had also mistakenly approached a friend
about the rape accusation believing her (the
friend) to be Aphiwe.
One of the two had said to the other in that friend’s presence
that “the secret is out now”.
[6]
[12]
After becoming seized of the matter, Ms.
Maholwana’s first port of call was to personally interview the
complainant herself
to confirm what was contained in her initial
statement. She met her at the hospital where she was being
examined. She
additionally obtained a supplementary statement
from her which although only deposed to at 21h40 once the plaintiffs
had already
been informed of their rights as suspects, she confirmed
was information gleaned from the complainant during the evening
preceding
their arrest. In it Ms. Nomtoto declares:
“
I
wish to state further that one of them took my phone. I wish to
state further that three of them raped me and one run away
as he say
they must leave me. I was also dizzy as they were kicking me.
I saw Luphelo prior the 3 came to me.
I told him that I was
looking for my phone which my boyfriend threw on the street. I
do not know where he ended. I
chased my boyfriend with the
three who pretended to be assisting me. I did find my phone.
One of them grab my phone
from me.
It is
a LG phone red in colour. When I came from hospital for
examination on 2012-04-29 at 21h20 I saw the three of them at
the
Inyibiba C.S.C. I pointed them out to Sergeant Maholwana as the
ones who rape me, Ntlangwini, Bubele and Maphelo.
They
were taking turn in raping me without coming. I know all three of
them it was not the first time I saw them. I was drunk
but not
that drunk that I could not see or identify them. The
phone which was at Inyibiba LG found from them is mine
red in
colour.” (Sic)
[13]
Before Warrant Officer Maholwana arrested
the plaintiffs she also interviewed certain witnesses, the first of
these being the so-called
“first report” witness, Ms.
Nopumzile Nomtoto, the complainant’s mother, from whom she took
a statement at 18h44.
The latter states in her written account
that her daughter had come home at 04h00 (on the same day of deposing
to her statement)
and reported to her that she had been raped after
an argument with her boyfriend. The perpetrators, three in
number, had
approached her under the false pretence of wanting to be
of assistance to her. Instead of chasing after her boyfriend as
they had offered to do, however, they dragged her into the bushes and
raped her. Her daughter was sure that she had been raped
by the
two assailants named by her but was uncertain if the third person had
also participated because her face had been covered
during her
ordeal. According to her Aphiwe had mentioned to her the names
of the two but she could not recall them at the
time of making her
statement.
[14]
At 20h00 Warrant Officer Maholwana took a
statement from one Luphelo Sinyono (“Luphelo”). She
clarified during
her testimony that she had interviewed him because
she had heard that the complainant had been in his company earlier
that evening.
The critical aspects of his account of the
incident are as follows:
“
On
Saturday 2012-04-28 at to 22h00 I was with Aphiwe to the party at NU
16. I dropped her there NU 16 and I proceeded to the
party.
On Sunday 2012-04-29 at past 24h00 I was from Ledz Tavern and I saw
Aphiwe and (her) boyfriend Lubumba fighting and
Aphiwe screamed for
help and I proceeded to try to rescue Aphiwe and Lubumba run away
before I reach them. Aphiwe asked me
to look for her phone.
I look for it but could not find it. This phone was lost at or
near no. 1466 NU 16. When
I was looking for the phone Ayanda
come out and ask what was happening and I told him Aphiwe run after
Lubumba. I then proceeded
home.” (Sic)
[15]
Based on the information obtained from him
she also took a statement from Ayanda Bulube (“Ayanda”)
who it is common
cause lives at 1466 NU 16, Mdantsane, the address at
which Mr. Sinyono said the complainant’s phone was lost.
Since his account and purported involvement in the events leading up
to the plaintiffs’ arrest was central to their case,
it is
necessary to set out what he stated in full:
“
On
Sunday 2012-04-29 in the morning session but it was still dark
outside I was asleep when I heard my mother screaming saying there
is
someone screaming outside and she thought it was my sister Siyasanga
as she not at home. I stood up and I open the kitchen
door. I
could see in the street as the lights were on. I saw Luphelo in
the gate of my house and I asked him what is
happening. He told
me that he is looking for Aphiwe’s phone and he further told me
that Aphiwe was fighting with his
boyfriend but I did not see
Aphiwe’s boyfriend. I saw Aphiwe coming out from the bush
near my home. I did not
notice anything wrong with her as I was
coming from sleep.
I saw
Maphelo the one who say he picked up the phone he was also there in
that early morning session he was coming from my next
door house.
I also saw Fonxo he was also with Maphelo. Aphiwe left. I
do not know what happened after that.
Luphelo told me he is
assisting Aphiwe as she requested her to look for her phone. If
there is any problem I must contact
him with regard to the phone.
I do not know whether Luphelo, Maphelo and Fonxo were together as
that two were in my next
door neighbor and the one was in his yard.”
(Sic)
[16]
Mr. Bulube was not called upon to testify
at the trial, but according to Warrant Officer Maholwana she obtained
his statement at
his home just before returning to the police station
where she arrested the plaintiffs. The time indicated thereon
is 20h30.
[17]
She denied under cross examination that
“Ayanda” (who it only later occurred to her under cross
examination was the
same Mr. Bulube from whom she took the last
statement) was among the persons at the charge office at the time of
the plaintiffs’
arrest or that he had purported as a so-called
eye witness to interpose on their behalf to seek their exoneration.
(Although,
initially claiming to not even know “Ayanda”,
it was quite apparent that until she reviewed the contents of the
docket,
she did not make the connection that he was one of the
witnesses she had interviewed before arresting the plaintiffs.
This,
and the time and place indicated on the statement however,
gives credence to her denial that he could have been present at the
charge office before she arrested the plaintiffs, or that he had
sought, as contended for by the plaintiffs, to seek to persuade
her
at the charge office before their arrest that the plaintiffs were not
the persons involved in the commission of the crime.)
[18]
Before the plaintiffs were arrested, the
complainant had also been examined by a doctor. The medical
report in her view had
confirmed the rape or in her opinion at least
gave credence to the fact of a rape having been perpetrated against
the complainant
and was one of the significant features of the
investigation that inexorably compelled her to accept that there was
a justifiable
basis for the arrest.
[19]
Further, there were two critical events
that occurred which amply confirmed for her that there was indeed
good reason for the arrest
of the plaintiffs as opposed to anyone
else. Firstly, upon returning to Inyibiba police station with
the complainant after
the latter’s medical examination, the
plaintiffs were among a group of five men present at the charge
office. She clarified
that she had encountered them there
before going to the hospital to meet the complainant and knew that
they were awaiting her return.
When the complainant saw this
group of men, she spontaneously pointed out three of them as her
assailants, two of them being the
plaintiffs. It is common
cause that the third one was Mr. Maphelo Majamane (“Maphelo”).
Secondly, the cell
phone that the complainant identified as her
property and which she claimed had been taken from her before the
rape, was retrieved
from Mr. Majamane’s possession. This
recovery of the phone had happened in her absence whilst she was away
at the hospital
with the complainant and carrying out her
investigations.
[20]
The plaintiffs and Mr. Majamane were
formally arrested as appears from their separate constitutional
warning statements and SAP
14 notices filed in the police docket,
between nine and ten pm that night. The first plaintiff stated
that he had an alibi
in the person of “Siyasanga” who he
claimed to have been with at Ledz and Twin taverns respectively after
midnight.
He denied being in the company of the second
plaintiff after 20h30 that night. Mr. Majamane similarly denied
the allegations
but conceded picking up the cellphone near 1466 NU 16
(at Mr. Bulube’s home) on the grass. The second plaintiff
said
that at the time he was at home sleeping and innocent of the
charges.
[21]
Regarding
the malicious prosecution claim, Warrant Officer Maholwana explained
that since the accused were charged with gang rape
inter
alia
,
which is a schedule 6 offence as set out in the CPA, bail could only
be granted by the court. She misunderstood what exactly
the
accused were expected to prove in this forum but was aware that they
bore the onus to convince the court in this respect.
[7]
[22]
She
did not personally attend the bail hearing, but conceded that she had
gone through the motions of formally opposing the plaintiffs’
release on bail because of the magnitude of the offence itself.
This accords with the formal document in the docket
(the
Bail Information Form) dated 29 April 2012 in which she had indicated
an election to oppose bail, at least in respect of the
second
plaintiff.
[8]
[23]
She added that she thought that the
plaintiffs’ lives were also in danger, because the community
had brought them to the police
station and were angry. Also,
since the complainant knew them and lives in the same area, she did
not think that it was in
the interest of justice to release them back
there or into the hands of the same community. (These
extraneous concerns were
contemporaneously highlighted on the
plaintiffs’ Bail Information Forms as well.)
[24]
Despite the pointing out by the complainant
and her apparent confidence that the plaintiffs were her assailants,
the main criticism
against Warrant Officer Maholwana’s evidence
is that she had failed to recognize that the complainant was drunk on
the night
in question and that her ability to identify the
perpetrators was probably compromised as a result. This, so it
was suggested
to Warrant Officer Maholwana, would affect the premise
of her suspicion held that the plaintiffs were among the persons
involved
in the commission of the crime. It was also put to her
that she ought to have recognized from the information furnished by
Mr. Bulube that after someone was heard screaming (which was probably
the complainant), “Maphelo” (who was arrested
and found
in possession of the complainant’s cellphone) and “Fonxo”,
in addition to “Luphelo”, were
seen in the area.
This vignette, according to Mr. Nzuzo who appeared on behalf of the
plaintiffs, pointed ineluctably to
the conclusion that the two
plaintiffs were innocent and that the arresting officer had been
imprudent and unreasonable in overlooking
the possibility that these
were the complainant’s assailants, arresting the plaintiffs
rather than this trio named in Mr.
Bulube’s statement who were
more likely involved in the commission of the crime. Warrant
Officer Maholwana denied that
she had not been careful in either
respect or that she had not critically analyzed the relevant
information at her disposal.
[25]
The plaintiffs gave dramatically different
accounts of the moments of their arrest and of Mr. Bulube’s
involvement.
[26]
The
first plaintiff testified that on the day of his arrest he presented
himself at the charge office after being informed that
the police
were looking for him concerning their investigations into the offence
of rape perpetrated against the complainant.
[9]
[27]
Prior to presenting himself at the charge
office he looked for the second plaintiff with whom the alleged
crimes were said to have
been committed. He informed him about
the police visit to his own home and the allegations leveled against
them. They
became aware of the identity of the complainant
after being confronted by one Sisanda who accused them of raping
Aphiwe.
They then proceeded to the complainant’s home to
ask her about these allegations, but did not find anyone there.
[28]
They asked her whereabouts from her
neighbor, Ayanda, the same Mr. Bulube from whom Warrant Officer
Maholwana took a statement shortly
before their arrest. The
first plaintiff states that they learnt the following from him:
“
And
then we asked, since Ayanda is a neighbor of Aphiwe and then we
wanted to find out if he has seen Aphiwe and he said he last
saw
Aphiwe the previous day, (she) was being pulled around by Fonco and
Phelo and that she was screaming, or crying. We asked
him where
was this thing happening, he said in Aphiwe’s yard at the back,
because there is a bushy area, like a forest at
the back of the
house, that is where this thing was happening. Since we heard
what Ayanda is saying is linked to what the
Police, to what we think
the Police are looking for us for and then we asked him, we begged
him to accompany us to the Police Station
so that he can say this
thing in front of the Police.” (Sic)
[29]
The plaintiffs then searched for the three
persons mentioned by Mr. Bulube and after finding at least Maphelo
and Luphelo, they
all went to the charge office together with Mr.
Bulube. At the charge office they were asked to wait for
warrant officer
Maholwana who on her arrival there arrested them,
this despite Mr. Bulube professing that they were not involved and
him informing
them that he had purportedly seen “what
happened”. Indeed, while he was trying to come to their
assistance by
interposing for them, he claims that the investigating
officer and the “other lady officer” “pepper
sprayed”
Mr. Bulube.
[30]
The officers dismissed their own
explanations and Mr. Bulube’s claims that there was no link
between the plaintiffs and the
complainant intimating instead that he
was “siding” with the plaintiffs who the police officers
supposedly knew to
be “thugs”. Whilst they were
arguing among themselves the investigating officer purportedly got
tired of the
whole thing and announced that he was going to take all
of them to the police cells. It was while they were being
searched
and stripped of their possessions that the complainant’s
phone was found in Mr. Majamane’s pocket. In the end
it
was said that the plaintiffs and Mr. Majamane were going to the cells
and that the rest must be released. As for Mr. Majamane
and
Luphelo they acted as if there was “no link” between them
and Aphiwe after being questioned by the police about
Mr Bulube’s
purported accusation.
[31]
The
first plaintiff claims that it was a police officer (referred to as
“he”)) who pointed them out and not the complainant.
[10]
Under cross examination he said that additionally the complainant and
her mother also identified him, the complainant referring
to him by
name, “Bubele”, but that this happened after the police
had already identified him. He was not prepared
to be drawn on
why at the bail hearing, when it had been put to him that the
complainant in the presence of Warrant Office Maholwana
pointed out
the three of them at the police station as the perpetrators, he had
agreed then that “that is how it happened,”
but was now
contradicting himself.
[32]
He claimed further that those waiting at
the police cells for the return of Warrant Officer Maholwana were six
in number (not five
as she testified) and that she had only pointed
out the two plaintiffs. He now offered a different observation
namely that
Mr. Majamane only became involved once the complainant’s
cell phone was found in his possession.
[33]
He could not explain why Mr. Bulube’s
statement which he had made to the police (the contents of which he
claimed to have
no knowledge of) did not align with his own testimony
as to the latter’s supposed claim that Mr. Majamane, Luphelo
and Fonxo
were implicated in the rape or that he had supposedly
personally seen what had happened. He accepted though that he
could
not dispute what Mr Bulube had in fact said in his police
statement.
[34]
Despite his concession he yet insisted,
when the basis for Warrant Officer Maholwana’s justification
for their arrest was
put to him by Mr. Ntsaluba acting on behalf of
the defendants, that “there was a person who witnessed this
incident who was
also there at the Police Station (who saw) the
people who did this”. Asked who it was he confirmed this
to be “Ayanda”.
When Mr. Ntsaluba pointed out to
him that the latter had not said as much, he claimed that it was
because he was assaulted at the
police station and also “pepper
sprayed”. He went further and claimed that the police
“made (Ayanda) a
witness” as confirmation of his view
that Mr. Bulube was implicated “by what he saw”.
[35]
Confusingly,
when it was pointed out to him that his assertion that Mr. Bulube
supposedly saw the people who did this thing and
could therefore
exclude the plaintiffs from being the suspects was factually
incorrect, he tried a different tack claiming instead
that Mr. Bubele
had mentioned this to Mr. Ntanjana
[11]
when he arrived at the police station, but that he did not say that
they were raping her. Rather, he had purportedly informed
Mr.
Ntanjana that they “were pulling her towards the bushy area,
because Aphiwe’s place is close to the bushes”,
suggesting that this was as good as saying they were the ones who had
raped her in the bushes.
[36]
He conceded ultimately that Mr. Bulube had
not pertinently said to the police that the plaintiffs were innocent
of raping and robbing
the complainant but purported under
re-examination to resuscitate the premise of their innocence being
proclaimed by him on their
behalf. He reiterated what Mr.
Bulube had said to them when they had gone to his home asking about
the complainant, which
is that he had last seen her the previous
night at the time “while she was being pulled by Luphelo, Fonxo
and Maphelo”.
Asked if at the police station Mr.
Bulube had repeated what he had told them he saw, he now embellished
their cause as follows:
“
MR
NZUZO:
Now at the Police Station, did
he repeat what he told you to the Police?
MR
KOPOLO:
Yes, he did mention that to the
Police and then he also mentioned his mother and his mother was
phoned by the Police who also said
that yes that happened and then
because the window of his mother’s room is facing towards the
side where the incident was
happening and then his mother called him
to also look at what was happening.
MR
NZUZO:
Now he mentions at the Police
Station what he told you about the incident?
MR
KOPOLO:
He did not say that they raped
her, he mentioned that when they heard the screams, it is only then
that they looked and then they
saw them pulling her, because the
reason why they went to check is because there is another girl child
at his place, he was not
at home at that time, that girl child was
with us at the shebeen.
MR
NZUZO:
Did he, Ayanda at the Police
Station in narrating what actually occurred the previous night, did
he mention your name and that of
the second plaintiff as people who
were involved in pulling the victim to the bushes?
MR
KOPOLO
: No, he did not mention our
names.”
[37]
Still not satisfied that he had made clear
that the plaintiffs were
not
identified, he introduced an element of doubt to the complainant’s
identification of them at the charge office:
“
(T)he
thing is first Aphiwe said it was us and then she changed her version
and said that she did not clearly see us, because it
was dark and
then she can only identify us with the muddy clothes that we had, but
on the next day we were not wearing the clothes
that we wore on the
previous day.”
[38]
He added yet another string to his bow, now
suggesting that although both Mr Bulube and the complainant were
talking about three
people, Mr. Bulube could “easily”
identify the three implicated by him because he did not drink on that
day, whereas
the complainant had said she could not identify them
because she could not see them.
[39]
The second plaintiff confirmed the
circumstances under which he and the first plaintiff had come to
present themselves at the police
station, but his account of what Mr.
Bulube supposedly said to them is very different:
“…
while
we were going towards the direction of the Police Station, that is
when we met Ayanda and then we asked him whether he has
seen Aphiwe,
he said he last saw Aphiwe the previous evening while she was being
raped by Mapelo, Lupelo and Fonxo. Ayanda
asked what is the
link between us and Aphiwe and then we told him that it is said that
we raped Aphiwe and then he said no he saw
the people who raped
Aphiwe, because he was called by his mother then to have a look and
then he saw, he knows the people who did
that and then he was willing
to accompany us to the Police Station.”
[40]
His version of how the pointing out ensued
is also dramatically different. Firstly, he claims that they
were prewarned at
the police station by the “investigating
officer” who had left with the complainant that they must wait
for her and
the complainant to return “so that Aphiwe can point
out those people who have raped her”. (This is in
contradistinction
to Warrant Officer Maholwana’s testimony that
the pointing out happened spontaneously upon their return immediately
the complainant
saw her assailants there.) Secondly, he claims
that when the two women arrived, three of them (the plaintiffs and
Mr. Majamane)
remained behind and then it was said to her that she
must point out the people who have committed the crime. This is
what
he claimed happened next:
“…
And
then Ms Maholwana said to Aphiwe she must only point to the three of
us and then she must leave the other four out
[12]
and then she said and then she pointed us out and then Maholwana
asked again, “Are you sure about those people”, and
then
she did not answer, she only closed her ears.”
[41]
Regarding the role played by Ayanda and his
mother the second plaintiff also gave a different account of what was
purportedly said
by Ayanda in the presence of the police officers:
“
Ayanda,
it was asked from Ayanda to say exactly what he saw, what he has seen
the previous evening and then Ayanda said they heard
a scream outside
and then his mother called him and then they went to look and then
they saw Lupelo, Mapelo and Fonco raping the
girl. And then it
was said that Ayanda is talking shit, he was beaten and then he was
also pepper sprayed, because it was
said that he was talking
rubbish. When he was asked who can say the same thing thing he
saw those people, he said the other
person who witnessed that thing
was his mother. Mr Ntanjane took a phone and then called
Ayanda’s mother and then Ayanda’s
mother said exactly
what Ayanda was saying.”
[13]
[42]
He claims that it was then that they were
searched before being taken to the cells when the phone, identified
as the complainant’s,
was found in Mr. Majamane’s
possession.
[43]
Although
it later transpired that Mr. Bulube had made his statement in the
comfort of his own home that night,
[14]
the second plaintiff insisted that he could hear Mr. Bulube and see
him giving a statement to the police at the charge office and
that it
was in fact written down and then signed by him right there in their
presence. The police thereafter also phoned
Mr. Bulube’s
mother to verify that what he was saying was true.
[44]
Under cross examination the second
plaintiff corrected his version of how the pointing out had
happened. He now claimed that
he and the first plaintiff were
first separated from the larger group before the complainant
arrived. Mr. Majamane was only
told to join them because the
phone was found in his possession. When the complainant came in
he claims that she was told
“only to point from the three of
(them), she must leave the other four people out”.
[45]
He remained intractable in his stance that
Mr. Bulube told the police (in his presence and contemporaneously
signed a police statement
at the charge office to this effect) that
he saw Luphelo, Maphelo and Fonxo raping the complainant despite it
being pointed out
to him that Mr. Bulube had said no such thing in
his statement neither had the first plaintiff maintained such a
version in his
testimony. To the contrary he insisted that it
was not only Mr. Bulube who saw this, but also his mother.
[46]
He conceded however that he would not know
what exactly had been written down by Mr. Bulube in his statement.
[47]
Strangely enough, under re-examination and
being asked to recount exactly what Mr. Bulube had told him about the
incident, an entirely
different scenario now emerged, one which he
was adamant had also been told to the police officers in his
presence:
“
MR
NZUZO:
Please tell us what Ayanda told
you about the incident?
MR
NGCELWANA:
Ayanda said he was woken up
by his mother,” because his mother has just heard a
scream outside the house and then when
they went to investigate
through the window they saw Lupelo, Mapelo and Fonco dragging and
beating up Aphiwe.
MR
NZUZO
: Is that place the place where
the alleged offence was committed?
MR
NGCELWANA:
Yes, that is what happened
in that place being done by Lupelo, Mapelo and Fonco.
MR
NZUZO:
Is that the place where the
alleged rape took place?
MR
NGCELWANA:
Yes, that is where the rape
happened, in the yard of Ayanda’s yard.
MR
NZUZO:
The three people which you have
mentioned as mentioned by Ayanda, were those the only people that you
mentioned which he saw at
the crime scene?
MR
NGCELWANA:
Yes, it was only three of
them.”
[48]
As an aside, Warrant Officer Maholwana
later pointed out in her testimony that the rape scene was somewhere
entirely different.
She personally visited the crime scene the
following day and had also visited Mr. Bulube at his home so she
could correct the fallacy
that Mr. Bulube was at or near the crime
scene when he saw what he claims to have seen in his police
statement. She could also
say from personal knowledge that the crime
scene was not close to the complainant’s home either.
[49]
Miss Cwayita Mkhwayimba who is employed as
a prosecutor with the National Prosecuting Authority stationed at the
Mdantsane Bail
Court identified a transcript of the bail proceedings
applicable to the plaintiffs concerning their appearances at the
Mdantsane
Magistrate’s Court after their arrest. She
confirmed the outcome obviously apparent therefrom which is that the
matter
first served before the bail court on 10 May 2012; that the
offence of “gang” rape brought the plaintiffs within the
ambit of schedule 6 to the CPA; and that, because they could not in
that judicial enquiry discharge the onus of establishing on
a balance
of probabilities that there were exceptional circumstances which in
the interest of justice permitted them to be released
on bail, their
applications did not succeed.
[50]
She explained the protocol employed by the
National Prosecuting Authority in their Guidelines concerning the
test to be applied
to cases eligible for prosecution. According
to her the receiving prosecutor examines the docket to determine if
there is
a
prima facie
case against the accused person and, if there is, the matter is then
enrolled before the court by completing the necessary J15
charge
sheet which initiates the prosecution (colloquially referred to as
the “enrolment” of the matter). During
the bail
proceedings the same premise of a
prima
facie
case is required to be
established. Thereafter the case is postponed for further
investigation to check if there are reasonable
prospects of a
successful prosecution in due course.
[51]
In respect of the bail enquiry she noted
that in circumstances where the applicant has failed to discharge the
onus on him to establish
exceptional circumstances, the prosecutor
may decide not to even call the investigating officer to come and
testify, simply leaving
it to the magistrate to decide. She
however acknowledged the State’s role, even though the onus is
on the accused person
in such an instance, to assist the court to
arrive at a just verdict.
[52]
She summarized that in this instance the
plaintiffs had not raised any exceptional circumstances in the
enquiry, relying only on
their personal circumstances which they put
forward.
[53]
She clarified under cross examination that
she would have “opposed” bail acting in conjunction with
the policy directives
issued by the National Prosecuting Authority
along the expectation that where the accused person is charged with a
schedule 6 offence
of this nature, the prosecutor is expected to
(“must”) oppose bail.
[54]
She herself was satisfied in the presence
instance, in the context of having read the docket as a prosecutor in
B-Court, that a
prima facie
case had presented itself in this instance.
[55]
With the benefit of having read the
statements in the docket and asked under cross examination whether
she considered to be relevant
the information furnished by Mr. Bulube
that he had observed the presence of Luphelo (who claimed to be
assisting the complaint
to look for her phone) and Maphelo (in whose
possession the complainant’s phone was later found) who was
purportedly “together
with one Fonxo as well”, the
witness readily conceded that it was relevant, but clarified why upon
an objective conspectus
of all the peculiar nuances of the scenario,
there was nothing to detract from the reasonable suspicion harbored
by the arresting
officer that it was the three persons who she had
arrested who were properly before court. Her answer below amply
demonstrates
her professional reasoning and critical analysis of the
information in the docket which would have served before her,
concluding
in her positive affirmation that she was satisfied that
they had charged the correct accused:
“
MR
NZUZO:
… Now on Ayanda
Bulube’s statement the information about the presence of
Mapelo. Lupelo and Fonxo where
they were seen and thereafter
the victim coming from the bushes, with that information did you not
think that information was relevant
to the investigation?
MISS
MAKHWAYIMBA:
Yes, it was
relevant. But as you can see on page 11, the statement of
Ayanda says that he saw Mapelo at the gate of
his house, and when
asking him what was he doing there the answer was that he was looking
for the phone of Aphiwe. Which
corroborates what is said by
Aphiwe in her additional statement. Paragraph 1 where she
says: ‘Before the 3 accused
came, this Lupelo came
assisting her looking for the cell phone.’”
So
Lupelo was at some stage in the scene only assisting with the cell
phone. And the complainant further states that before
these 3
arrived she does not know where this Lupelo went to. And now
when you go back to the statement of Lupelo, the last
paragraph, the
last two paragraphs on page 13. Lupelo himself mentions that he
saw the complainant when (she was) fighting
with the boyfriend.
On approaching in order to intervene the boyfriend ran away. He
then assisted looking for the cell
phone of the complainant. So
the role that was played by Lupelo was assisting to find the cell
phone and assisting to try
and rescue the complainant from the
fight. And even the complainant herself does not implicate
Lupelo as one of the 3 guys
who raped her. He is just
exonerated by the complainant from the very onset and they
corroborate each other that Lupelo was
not there during the rape.
MR
NZUZO: Yes, I accept that, that is the true reflection of what is
contained in the statement. But my question is, there
is this
Fonxo who is said to be with Mapelo from whom now, Mapelo, the phone
was recovered. Wouldn’t a reasonable person
have that in
his mind that Fonxo may have been involved?
MISS
MAKHWAYIMBA:
Yes. Although
we do not know who is Fonxo. Because Fonxo is a nickname.
It is possible that Fonxo might
be one of the 3 accused but he’s
only known to the complainant by the nickname. And when it comes to
the identity of the
accused all 3 accused were identified by the
complainant in that the complainant in her statement she says that:
‘
During
the morning session she saw the 3 accused wearing the same clothes
and their shoes were muddy because there was mud in the
place of the
incident when it took place.’
And
further that the complainant says that:
‘
I
pointed in the pointing out statement, I pointed out the 3 suspects
mentioning them by name to the investigating officer, Maholwana.’
and
she does not mention Lupelo at all.
MISS
MAKHWAYIMBA:
And she doesn’t
(mention) Fonxo at all.
MR
NZUZO:
Okay, please let’s
not argue. I accept that the victim does not mention Fonxo, but
there is this person who now
says Fonxo was at that place. Now
the question is, would not a reasonable person consider that
information just in case one
– we’ve established your
evidence that Fonxo is not one of the people that are accused.
He’s one of the
guys who was never charged.
MISS
MAKHWAYIMBA:
It’s my
first time to hear that.
MR
NUZUO
: That’s fine, it was
confirmed by the investigating officer. So now there is this
person who is seen with one
of the accused from whom the phone is
recovered. Does it not even occur in your mind that there may
well be a chance that
Fonxo was one of them which then says maybe one
of the accused was not involved because the victim said there were
only three?
Were you satisfied with that information that
indeed it is the 1
st
Plaintiff, 2
nd
Plaintiff and the third person who were involved?
MISS
MAKHWAYIMBA:
Counsel I’m
answering you. Each case is decided on its merits. And
now when you were reading the case you
don’t have to anticipate
what might have happened or what should have happened. When I read
the docket, I concentrate on
the facts that are before me. And
yet we must also remember that I was only a Bail Court prosecutor,
not a person who was
responsible for investigation. If any
question was there, there are the 100% chances that the prosecutor in
court would have
assisted or asked the investigating officer to make
a follow-up on Fonxo. Unfortunately I was not the one who was
guiding
the investigation, I only dealt with the bail application.
MR
NZUZO
: Are you saying that information
relating to Fonxo was not relevant for the consideration of bail?
MISS
MAKHWAYIMBA:
It wasn’t.
Before me there were 3 accused who were identified positively by the
complainant who came to apply
for bail application.
MR
NZUZO
: And are you saying that it never
occurred to you that you may have been opposing bail on someone who
was not involved? That’s
fine we accept they were all
pointed by the victim. But did not occur to you that you may
have been opposing bail for someone
who may not be involved because
of this information of Fonxo being seen?
MISS
MAKHWAYIMBA:
Based on the fact I
had in my docket I was 100% sure that I’m opposing bail on the
correct accused.”
[56]
Pressed regarding Mr. Nzuzo’s
criticism of the State basing its case of identity on the statement
of a complainant who she
conceded was purportedly drunk, she noted
the qualification by the latter in her statement that although she
was drunk she was
not so drunk that she did not know what was
happening about her. She also adverted to the fact that by the
time of her examination
by the doctor “nil toxification or any
use” was observed by him. Further apart from pointing out
the trio of
persons known to her who had been involved in the rape of
her, the witness referred to the complainant’s additional claim
that she had also met them (seemingly only the plaintiffs) the
following morning as providing confirmation of their identity.
[57]
She was not inclined to agree that the
statement of Mr. Bulube, possibly highlighting a weakness in the
State’s case according
to Mr. Nzuzo, should of necessity have
been placed before the bail court, neither did she agree that the
State’s case was
weak because of it.
[58]
Ms. Linda Jekwa, also employed by the
National Prosecuting Authority as a prosecutor based at the
Butterworth Thuthezela Care Centre
(in the capacity of case manager
of sexual offences), confirmed that she personally withdrew the
charges against the three accused
(including the two plaintiffs) in
the regional court on 6 February 2013. She explains that after
reviewing and considering
the case in preparation for trial it
occurred to her that identity would be an issue because of the
circumstances under which the
rapes had occurred. In her professional
view the State’s case would be strengthened by DNA evidence
since swabs (with semen
ostensibly) had been taken from the
complainant’s genitals. She clarified that since the
regional court is a trial
court and investigations still needed to be
undertaken in her view, she provisionally withdrew the charges
pending such forensic
investigation and analysis.
[59]
She repeated the National Prosecuting
Authority’s protocol regarding the standards to be applied at
the different stages of
enrolling a case, the bail proceedings, and
upon trial ultimately emphasizing that the review of a case is
according to the Authority’s
Guidelines a continuing process
having regard to changing circumstances and fresh facts which may
come to light after an initial
decision to prosecute or not to
prosecute has been made. In this instance she felt it
necessary, since preliminary DNA processes
had detected the presence
of semen in the complainant’s vagina, that those swabs should
be compared with control blood specimens
taken from the accused
persons. This had been flagged in the investigation diary some
ten months before, but had unfortunately
not been followed up on.
[60]
Despite the new development and caution
expressed that something was lacking in the State’s case, she
refuted the suggestion
that at the time of the enrolment of the case
there was not a
prima facie
case. This was because in her view the complainant in her
statement had named the people who had raped her. In addition,
there
was a medical report that supported the fact of the rape.
[61]
Even making allowance for her recognition
that the DNA results had come back excluding all three accused as
donors of the swabs
taken from the complainant’s vagina, this
in her view did not detract from the
prima
facie
view held by the prosecutor at
the time of the enrolment of the matter which entirely justified the
prosecution of the plaintiffs
as far as she was concerned.
[62]
Under cross examination she readily
revealed the basis for her concern that the identity of the
complainant’s assailants in
an adversarial trial might pose a
challenge and result in the complainant being “grilled”
in this respect. She
reflected that there was a need to
strengthen the State’s case with DNA evidence because (1) the
incident had occurred at
night; (2) the complainant had professed to
be under the influence of alcohol; (3) she had been dragged into the
bushes and (4)
at some stage had had a cloth put over her face.
[63]
She reflected on the reason why the DNA
evidence would assist:
“
I’ve
dealt with many cases especially with the attorneys in Regional Court
that they would definitely attack the complainant
on that issue to
ask about visibility, is she sure because there were other people
around, it was at night, you know those kind
of things. So I
wanted to assist her to make it easy for her when she has to
testify. So I felt I needed that evidence.”
[64]
She maintained though that this did not
detract from the decision to enroll the case in the first instance:
“
That
is why the control prosecutor asked for DNA. But it did not
mean that there was no evidence. There was evidence,
that’s
why it was enrolled because in her affidavit she named the people
that did it. But the control prosecutor might
have realized
some of the obstacles she might face, that is why she requested DNA.”
[65]
The decision to oppose bail was equally
justified in her view on the basis that the plaintiffs and Mr.
Majamane were facing a schedule
6 offence which placed the onus on
them to show exceptional circumstances that in the interests of
justice would permit their release
on bail.
[66]
She did not agree that at that stage of the
enrolment of the case that the challenges later recognized by her, or
the suggestion
put forward by Mr. Nzuzo that Mr. Bulube had mentioned
others possibly involved who had not been brought before court, had
rendered
the earlier decision taken to prosecute the plaintiffs in
any way reproachful. Indeed, she reiterated that the
complainant’s
sworn statement unequivocally mentioned who her
assailants were and pointed out that the Prosecuting Authority was
perfectly entitled
to rely on such a statement deposed to under oath.
[67]
Mr. Nzuzo submitted that Warrant Officer
Maholwana was not a reliable witness at all and that I should prefer
the plaintiffs’
versions, but I am not inclined to agree.
It became readily apparent while the witness was under cross
examination that she
had been preconized without reading the docket
before giving her testimony. Although she had a fair memory of
the events,
she could not remember exactly who said or did what or
when, but was able to give a comprehensive account that made sense
and fell
into place once she had had an opportunity to review the
contents of the docket and stimulate a chronological memory of the
events.
Two good examples are that she didn’t know who
“Ayanda” was until she saw from the docket that he is the
person
she had taken a statement from at his home shortly before the
plaintiffs’ arrest. She also thought that the cell phone
had been found in possession of one of the plaintiffs until it was
pointed out to her that it was common cause that it emanated
from a
body search of Mr. Majamane. She was obviously mistaken in
these salient respects, but also clearly challenged in
her
independent recollection of these matters until she had had an
opportunity to refresh her memory from the police docket.
[68]
She
further made a favourable impression as a witness. She conceded
at the outset at numerous junctures that her memory was
not serving
her well because the events had happened a long time ago. She
also readily made concessions. She accepted
for example that
the plaintiffs had voluntarily gone to the police station after
hearing that they were being sought by the police.
She conceded
that the information conveyed by Mr. Bulube was “relevant”
to the investigation and even agreed that his
account of seeing the
complainant might have coincided time wise with the period after the
rape incident.
[15]
She
agreed that she had omitted to refer in her statement to the fact
that an angry mob had gone to the charge office and
were present
there.
[16]
[69]
I do not agree that she tried to mislead
the court in explaining (and reading out aloud as she thought she had
written it down)
that the complainant had been “drinking”
as opposed to “being drunk” as was actually recorded by
her in
the statement. She logically explained how she thought
she had written it down and that she intended to indicate that the
complainant was “drinking” instead of that she was drunk,
because why else would the qualification of her not being
so drunk so
that she could not see or identify the perpetrators have been of any
relevance for her to assert.
[70]
Neither do I agree that she withheld
information about Mr. Bulube (by virtue of her having initially
claimed not to remember such
a person until she had had an
opportunity to review the docket) or that she wished to draw
attention away from the suggestion in
his statement that Luphelo,
Maphelo and Fonxo were seen in the area.
[71]
She validly dealt with this issue after
refreshing her memory from the contents of the docket and was able to
explain how she had
dealt with the others who were present at the
charge office together with the three arrestees. She had asked
them why they
were present there which elicited the explanation that
“they were called by the suspects while they were coming to the
police
station”. Once the plaintiffs and Mr. Maphelo had
however been identified by the complainant, so she rationalized, she
did not see any reason to get any other information from them.
She acknowledged though that Mr. Bulube had said in his interview
that he had seen them next to his place, but she was satisfied that
it was unnecessary to question them any further once the three
suspects were plainly identified by the complainant as being the
responsible perpetrators.
[72]
In my view the defendants’ witnesses
furnished cogent reasons why each of them held the views which they
did which prompted
them to arrest and prosecute the plaintiffs or not
to accede to their release on bail and ultimately to provisionally
withdraw
the case against them. They also seamlessly in my view
argued away any criticism against their alleged mishandling of the
matter and explained clearly the respective decisions taken by them
(the arresting officer and Ms. Mkhwayimba’s at
least)
which had as a necessary consequence the deprivation of the
plaintiffs’ liberty from the moment of their arrest, without
any prospect of bail absent their presentation of substantial and
compelling circumstances permitting their release in the interests
of
justice, until the time that the charges were so withdrawn.
[73]
Contrariwise the plaintiffs did not make a
good impression on this court and the contradictory accounts of Mr.
Bulube’s involvement
and supposed presence at the police
station prior to their arrest in order to specifically exonerate them
from any involvement
in the rape of the complainant is somewhat
tenuous and improbable.
[74]
Firstly it is plain from the docket that
Mr. Bulube does no such thing in his statement and secondly the
statement taken from him
at his home at 20h30 belies his presence at
the charge office at all. It is further a strained
interpretation of what is
said in his statement that the three
persons Maphelo, Luphelo and Fonxo were operating as a trio or that
the arrest of Maphelo
later with the cell phone in his possession
should ineluctably point to their involvement in the rape rather than
the people pointed
out by the complainant herself. Although she
does not appear to have interviewed Fonxo, the complainant had not
implicated
Luphelo at all. Moreover, it is common cause that
she had been in his company earlier that night. If he had been
present
one would have expected the complainant to have said so
pertinently when his role in the critical events of the night was
under
discussion. One further has only to read Mr. Bulube’s
statement in context (and in conjunction with Luphelo’s and the
other witness statements) to appreciate that the vignette he was
relating and his sighting of the complainant at the time must
have
preceded the rape of her which happened later and somewhere far
removed from where Mr. Bulube noticed the people and the peculiar
events related by him.
[75]
It was incidentally open to the plaintiffs
to call Mr. Bulube to testify to confirm his supposed ill treatment
at the hands of the
police and his very voluble denouement of the
plaintiffs’ involvement in the whole debacle at the charge
office (most improbable
on its own), but this corroboration was not
forthcoming. If the plaintiffs wished to controvert the
defendants’ version
in this respect (which flows naturally from
Mr. Bulube’s statement) the burden was on them to do so and
their failure to
call him was at their own peril.
[76]
The plaintiffs clearly gilded the lily in
many other respects as well, for example prolonging the exact moment
and period of their
detention and the number of days they languished
in prison before their bail application could be heard, unjustifiably
attributing
blame to the investigating officer who supposedly failed
to appear in court to testify. Even the withdrawal of the case
ultimately
was elevated into a “dismissal” of the case,
whereas it was routinely dispensed with under the circumstances
outlined
by Ms. Jekwa whose testimony and professional account I have
no reason to reject.
[77]
Most notably it was clear from the premise
of Mr. Nzuzo’s cross examination and questions put to the
defendant’s witnesses
that he set no store by the plaintiffs’
conflicting accounts regarding what exactly Mr. Bulube had said at
the police station
or what had supposedly gone down there before
their arrest. Indeed it would in my view have been an
outrageous thing to suggest
to the defendants’ witnesses that
despite Mr. Bulube presenting himself to the police to identity
himself as an eye witness
to the rape that they would then,
calculatingly, have arrested three different persons other than the
real perpetrators and worse
still have assaulted him in full view of
everyone present in the charge office. Indeed if that was the
information provided
to their attorneys at the outset, one would have
expected this astonishing premise to have been pleaded in the
particulars of claim
as constituting extremely malicious behavior on
the part of the police and a gross and deliberate aberration of
Warrant Officer
Maholwana’s duties as a peace officer under all
the circumstances warranting extreme censure. Instead I am fortified
in my
view that the plaintiffs seriously embellished their case along
the way.
[78]
Inasmuch as I am obliged to resolve the
dispute of fact, I do so in favour of the defendants and reject the
evidence of the plaintiffs
where their versions differ both from each
other’s and from the defendants’ testimony. Their
versions are simply
improbable, inherently so, contradictory, and do
not accord with the objective record keeping maintained in the docket
concerning
the case from the moment of the opening thereof. The
bail transcript also naturally presents an objective account that
does
not accord with the plaintiffs’ testimony.
[79]
I return to the question whether Warrant
Officer Maholwana’s suspicion was reasonable.
[80]
The
test whether a suspicion is reasonably entertained within the meaning
of s 40 (1)(b) of the CPA is objective.
[17]
In this instance, would a reasonable man in her position
and possessed of the same information have considered that
there were
good and sufficient grounds for suspecting that the plaintiffs had
committed rape, a First Schedule Offence.
[18]
[81]
In
Mabona and Another v Minister of Law and Order and Others
[19]
the court expounded upon the expectation of such a reasonable man
effecting an arrest without a warrant.
“
It
seems to me that in evaluating his information a reasonable man would
bear in mind that the section authorizes drastic police
action.
It authorizes 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 analyze and assess the quality of the
information at his disposal critically, and he will not
accept it
lightly 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.”
(Emphasis
added)
[82]
Jones J in Mabona goes on to state what the
threshold of such an examination is:
“
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 but not certainty. However, the suspicion
must be
based upon solid grounds. Otherwise, it will be flighty or
arbitrary, and not a reasonable suspicion.”
[83]
Indeed,
in Duncan v Minister of Law and Order
[20]
the court found that the word “suspicion” implied an
absence of certainty or adequate proof.
[84]
In this instance there is no question that
Warrant Officer Maholwana formed her own suspicion. She also
did not launch into
making an arrest without firstly carefully
gathering her wits about her. She began at the beginning making
sure that the
complainant’s statement was one which she was
prepared to put her weight behind. She sought confirmation of
what the
complainant had said and clarity and supplementation where
this was needed; waited until she had objective medical
substantiation
of the fact that she had been gang raped as claimed;
sought the customary corroboration of a “first report”
witness;
and thereupon followed up on the necessary leads which
presented themselves to her. Her first meeting with Mr. Sinyono
logically
led her to Mr. Bulube, confirming a systematic approach and
careful appraisal of all the relevant information beyond the bare A1
statement made by the complainant (which another colleague had taken)
so as to remove any personal doubt as to the correctness
of the
complainant’s plea that she had been raped by known
perpetrators. Whereas she had merely been apprised of the
names
of those offenders (she explained that she had not met the plaintiffs
before), she witnessed first-hand the complainant’s
spontaneous
pointing out of the plaintiffs and Mr. Majamane. Although
Warrant Officer Maholwana had before she left for the
hospital met up
with a group of men at the charge office who claimed to be there on
the basis of messages left by the police that
they were being sought
for the rape, she resisted any impulse to arrest them, indicating her
consistency in adopting a careful
and methodical approach.
[85]
In addition, she made enquiries as to the
business of those persons present at the charge office in the company
of the plaintiffs
and Mr. Majamane and was assured that they had come
at the behest of the plaintiffs. She sensibly excused them once she
had reconciled
herself with the fact that they had not been
identified by the complainant as being among her perpetrators.
[86]
Indeed,
regardless of what Mr. Bulube had said in his statement concerning
his sighting of Maphelo, Luphelo and Fonxo, who may or
may not have
been in each other’s company, during the early hours of the
morning near his home after hearing a scream, there
would have been
no justifiable basis to arrest Luphelo, who had co-incidentally been
interviewed by Warrant Office Maholwana, or
Fonxo, as neither were
implicated by anyone. Maphelo it is clear was implicated by the
fact that the cell phone was found
in his possession closer to the
hour of the plaintiffs’ arrest rather than because of the
information furnished by Mr. Bulube.
[21]
[87]
The finding of the phone in Mr. Majamane
possession however provided vital confirmation for Warrant
Officer Maholwana, not
for any reason other than that the phone was
the property of the complainant and because Mr. Majamane had also
been identified
by her as being among the three who had assailed her.
[88]
As for the exculpatory explanation offered
by the plaintiffs and Mr Majamane, Warrant Officer Maholwana was
correct in my view to
reflect that the pointing out by the
complainant of her perpetrators trumped these accounts.
[89]
It is unnecessary for an arresting officer
to strive for absolute certainty regarding the identity of the
supposed perpetrators
when making an arrest without a warrant for a
First Schedule offence. Indeed there is almost always an
element of uncertainty
inherent in the concept of suspicion.
Warrant Officer Maholwana can therefore hardly be criticized,
objectively speaking,
for not checking out the plaintiffs’
supposed alibis rather than accepting the confidence of the
complainant regarding who
had violated her.
[90]
The fact that the complainant had imbibed
alcohol on the night of the incident was not an after-the-fact
reflection by Warrant Officer
Maholwana. She obviously sought
to clarify the complainant’s state of sobriety at the time of
the incident by pertinently
dealing with this aspect in her
supplementary affidavit. The examining doctor who saw the
complainant several hours after
the incident (albeit only at 18h55 on
29 April 2012), who was professionally obliged to comment on any
clinical evidence of drugs
or alcohol evident upon examining the
complainant, wrote “nil”. The complainant herself
had also had her wits
about her that morning after the incident,
being astute enough to have observed the two plaintiffs together in
each other’s
company again, wearing the same clothes as at the
time of the incident and with muddy shoes on which confirmed for her
that they
had been present at the physical scene of the rape.
Her mother’s statement concerning the first report also
confirms
that the complainant rendered a cogent account to her of the
events of the night, albeit her daughter was in a state of shock and
crying.
[91]
As
for the information furnished by Mr. Bulube, even upon a sterile
ex
post facto
consideration of his statement, there is nothing which detracts from
the reasonableness of Warrant Officer Maholwana’s suspicion
that the perpetrators pointed out to her by the complainant were most
likely the real offenders. It is contrived in my view
to
attribute to his information the certainty contended for by the
plaintiffs that, because Maphelo, Luphelo and Fonxo were observed
by
him after he heard a scream, that they were the trio responsible for
raping the complainant. As indicated elsewhere his
home is not
in close proximity to the rape scene; he could not vouch for
the three of them being a cohesive team; and
despite hearing a
scream, the vignette of the complainant being dispossessed of her
phone clearly preceded the actual rape event
by possibly even two
hours.
[22]
[92]
The
subsequent withdrawal of charges against the accused (for want of DNA
proof) is also neither here nor there and does not affect
the
lawfulness of the plaintiffs’ preceding arrest.
[23]
The question is whether at the time Warrant Officer Maholwana made
her arrest the circumstances giving rise to her suspicion
and which
informed her perception must be such as would move a reasonable man
to form the suspicion that the plaintiffs had committed
a First
Schedule offence.
[93]
In my view the answer, based on the
prevailing circumstances and upon an objective overview of all the
relevant surrounding circumstances,
must be in the affirmative.
Indeed this is one of those matters where it can be said with
confidence that there was nothing flighty
or arbitrary about the
arresting officer’s suspicion.
[94]
In the result I conclude that Warrant
Officer Maholwana entertained a reasonable suspicion that the
plaintiffs had committed the
offence of the rape of the complainant,
which justified her arrest of them without a warrant under all the
circumstances.
[95]
As for the claim of malicious prosecution,
I am inclined to agree with Mr. Ntsaluba that the plaintiffs failed
to discharge the
onus to prove their claim in this respect against
either of the defendants. Both Warrant Officer Maholwana and
Ms. Mkhwayimba
were obliged, on the premise of a
prima
facie
case against the plaintiffs of a
so-called gang rape (and in Warrant Officer Maholwana’s case on
the basis of her coincidental
considerations of the safety of the
complainant and the accused), to follow the prescripts of section 60
(11)(a) of the CPA and
let the law take its course. The
evidence failed in my view to establish that the defendants acted
with malice (
animo iniuriandi
)
in leaving it up to the court to determine their fate pending the
trial.
[96]
In the premises the plaintiffs’
claims are dismissed with costs.
_________________
B HARTLE
JUDGE
OF THE HIGH COURT
DATE
OF HEARING
:
16
September 2019
DATE
OF JUDGMENT :
12 December 2019
Appearances:
For
the plaintiffs: Mr. S Nzuzo instructed by Badi Loliwe Attorneys
c/o S Z Sigabi & Associates, King William’s
Town (Ref. Mr.
Loliwe).
For
the defendants: Mr. T M Ntsaluba instructed by The State Attorney,
East London (Ref. Mrs. Dlanjwa).
[1]
The
charge of robbery was added when the complainant’s phone was
found in the possession of one of the arrestees at the
charge
office, but the principal complaint under investigation, and the
predominant introspection into, concerned the offence
of the rape of
the complainant. Both offences are in any event schedule 1
offences.
[2]
The
parties agreed in the pre-trial processes that the documentation
discovered, including the bail transcript and the contents
of the
police docket, would serve as evidence of what those documents
purported to be without admitting the contents thereof.
There
were however no challenges at the trial as to the authenticity of
any of the documents that served before court.
[3]
Duncan
v Minister of Law & Order
1986 (2) SA 805
(A) at 8181 G –
H and Minister of Safety and Security v Sekhoto & Another
2011
(1) SACR 315
(SCA) at paras [6] and [28].
[4]
The
robbery charge, as I have indicated elsewhere, was added as an
afterthought after the plaintiffs’ co-accused, Mr. Maphelo
Majamane was found to be in possession of the complainant’s
cell phone at the charge office. Its emphasis, as a
self-standing reason for the plaintiffs’ arrest, did not
feature in the trial at all.
[5]
It was suggested by implication that these persons are the two
plaintiffs respectively.
[6]
See
paragraph [27] below. This friend appears to be one “Sisanda”.
The plaintiffs by their own testimony confirm
that the two of them
interacted with the complainant’s friend on this basis.
[7]
She
suggested that the onus on the accused was to prove whether the
offence “has been done by them” and/or whether
this
“this thing happened or not”, which is clearly not the
threshold. Nothing however turns on this misapprehension
of
hers.
[8]
The
election is not indicted on the form applicable to the first
plaintiff, but this must have been an oversight on her part.
She was quite clear that it was her objective to oppose bail for all
three arrestees.
[9]
None
of the parties focused on this feature during the hearing. It
confirms to my mind that even before Warrant Officer
Maholwana’s
involvement in the investigations, her colleagues had gone ahead of
her to call on the plaintiffs to report
as suspects probably based
on the information which had been furnished to them up to that point
that they were among the offenders.
[10]
He
appeared to accept later that it was Warrant Officer Maholwana who
had arrested them at the charge office, so it is unclear
why he was
referring to the police officer in the male gender unless he was
transposing pre arrest events with what happened
later that night
when they were formally arrested by Warrant Officer Maholwana. In my
view this was but one of the several unsatisfactory
features of his
demeanour as a witness.
[11]
Mr
Ntanjana is also a police officer who it appears from the testimony
was on duty at the charge office when the plaintiffs presented
themselves there hours before their arrest by Warrant Officer
Maholwana.
[12]
According
to the second plaintiff’s testimony there were seven of them
at the charge office waiting for the investigating
officer, although
he initially asserted that there were eight.
[13]
Under
cross examination the second plaintiff suggested that after being
“pepper sprayed”, Mr. Bulube was put behind
the police
counter.
[14]
This
was as per the testimony of Warrant Officer Maholwana once she had
had the benefit of looking at the contents of the docket
to verify
this detail.
[15]
This
was perhaps not a very insightful concession to make, given that
there was a period of at least 2 - 4 hours after Luphelo
and Mr.
Bulube saw her that the complainant was raped, quite evidently
somewhere further away.
[16]
She
had however indicated on the Bail Information Form that the angry
mob was a concern for her.
[17]
Minister
of Safety and Security & Another v Swart 2012 (2) SA SACR 226
(SCA) at [20]; S v Nel & Another
1980 (4) SA 28
(E) at 33H.
[18]
R
v Van Heerden
1958 (3) SA 150
(T) at 152; S v Reabow
2007 (2) SACR
292
(E) at 297 c – e.
[19]
1988
(2) SA 654
[20]
1984
(3) SA 560
(T)
[21]
The
question whether the suspicion concerning him of committing rape
never came to the fore, but there would indeed have been
a
reasonable need for him to have accounted for his possession of the
complainant’s cell phone.
[22]
Luphelo
said he came to the scene to help the complainant look for her phone
at “past 24h00”. The complainant
said she was out
and about at 02h00 and made the first report to her mother at 04h00
according to the latter. Mr. Bulube merely
referred to “the
early morning session” at which juncture he made his peculiar
observations.
[23]
Victor
v Minister of Police (unreported GP case no. 39197/2011, dated 22
October 2014 at [49] – [50].