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[2019] ZAECMHC 24
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Bam v Minister of Police (1072/2016) [2019] ZAECMHC 24 (21 May 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION – MTHATHA)
CASE NO: 1072/2016
In
the matter between:
IVY
NANA BAM
Plaintiff
and
MINISTER
OF POLICE
Defendant
JUDGMENT
MBABANE
AJ
Introduction
[1]
On 07 March 2016, the plaintiff was arrested by members of the South
African Police
Services without a warrant of arrest and was detained
for one night at Central Police Station, Mthatha. On the
following
day, she was taken to the court’s holding cells but
was later released without appearing before the magistrate. She
was advised that charges were withdrawn because the public prosecutor
declined to prosecute.
[2]
The plaintiff instituted action against the
defendant claiming payment of damages on the basis that she was
unlawfully arrested
and unlawfully detained.
[3]
The parties agreed to separate the issue of liability and quantum and
I made an order
in terms of rule 33(4) of the Uniform Rules for the
separation of the issue of liability and quantum, with liability
falling to
be dealt with first and the issue of quantum standing over
for determination at a later stage.
[4]
It is common cause that, in the circumstances of this case, the
defendant bears the
onus to prove that the arrest and detention were
lawful. This is so because, as Rabie CJ, stated in
Minister
of Law and Order and Others v Hurly and another,
[1]
that:
“
An arrest
constitutes an interference with the liberty of the individual
concerned, and it therefore seems to be fair and just to
require that
the person who arrested or caused the arrest of another person should
bear the onus of proving that his action was
justified in law.”
Pleadings
[5]
Relevant to the issue of liability, the plaintiff in the particulars
of claim alleges
the following:
“
3.1
On or about 07
th
March 2016 at or near Mthatha dam the plaintiff, whilst driving her
motor vehicle, was followed by a police motor vehicle which
demanded
plaintiff to stop. The occupants of the motor vehicle were two (2)
males and one civilian female. Upon having approached
the
plaintiff the police officer, Ngqokoma, informed the plaintiff that
she is under arrest and demanded that she alights from
her motor
vehicle and board on a police motor vehicle.
3.2
After some protestations
from the plaintiff, she was allowed to follow the police to central
police station.
4.
The plaintiff was taken
to court on 08
th
March 2016 and she was kept on the
holding cells until 14h30 and was advised by the member of the South
African Police Service
that the prosecutor has declined to prosecute
the case and was consequently withdrawn. The plaintiff was
released from police
custody by the members of the South African
Police Service. She was advised that she was arrested for the assault
of Petela’s
child.
5.
The arrest and detention
were malicious for the following reasons: On 01
st
March
2016 the plaintiff was severely assaulted by Nondwe Petela, Nontando
Petela, Lusanda Petela, and Asithandile Petela and she
opened a
criminal case against them under CAS No. 4-3-2016. Plaintiff’s
motor vehicle was destroyed by the aforesaid
persons. They were never
arrested and there is not even a court date until the institution of
this case.”
[6]
In denying the allegation the defendant pleaded that:
“
Ad paragraph
3.1
The content of this
paragraph is admitted.
Ad
paragraph 3.2 thereof
Save
to admit that the plaintiff resisted arrest to such an extent and the
rest of the content of this paragraph is vehemently denied.
Ad
paragraph 4 thereof
The
contents of this paragraph are admitted.
Ad
paragraph 5 thereof
The
contents of this paragraph are denied. In amplification thereof the
defendant avers that both arrest and detention were lawful
in the
circumstances as the plaintiff was charged of Assault [with intent to
do] Grievious Bodily Harm [“assault GBH”]
that was laid
against her by the complainant Asithandile Petela. The plaintiff is
put to proof of her allegations thereof.”
Issues
for determination
[7]
The issues are the following:
(a)
whether or not the reliance by the defendant on the provisions of
section 40(1)(b) of the
Criminal Procedure Act in arresting the
plaintiff without a warrant is sustainable; and if so,
(b)
whether the arrest and detention of the plaintiff was unlawful.
The
Defendant’s case through the evidence
[8]
The defendant called the evidence of two witnesses. The first
witness to testify
was the investigating officer, Warrant Officer
Nqokoma (“Ngqokoma”). Ngqokoma testified that on 07 March
2016 he was
on duty at Mthatha Central Crime Office performing his
normal duties as a detective. He was dealing with new cases and
this
case was one of the cases allocated to him for investigation. He
came across the docket in this matter and read all the statements
contained in the docket. Upon reading the docket he established that
it was a case of assault GBH which occurred at Link location
and the
suspect was the plaintiff. He stated further that the victim was an
8-year old and the statement was written by the victim’s
parent. Ngqokoma further testified that he and Colonel Mali proceeded
to Link location to discuss the case with the victim’s
mother.
They interviewed her and she confirmed that the person who assaulted
her child is the plaintiff. She accompanied them to
look for the
plaintiff towards the side of Mthatha dam. When they were about to
enter at Mthatha dam, the victim’s mother
saw the vehicle
approaching and informed them. They stopped the said vehicle
and went to the plaintiff and informed her that
she was under arrest
for assaulting a minor child. She requested that she be allowed to
drive her own motor vehicle to the police
station. At the time she
was with a young man in her motor vehicle. She was allowed to follow
with her motor vehicle to the police
station. Upon arrival at the
crime office, she was informed again that she was being arrested for
assault GBH and she was detained
in the police cell. She asked
to call her attorney, and she was permitted to do so. Ngqokoma
testified that he did
not require a warrant of arrest because
he is empowered by the provisions of section 40(1)(b) of the Criminal
Procedure Act
[2]
to arrest a
person without a warrant if that person has committed a schedule 1
offence, and the offence of assault GBH is a schedule
1 offence. He
concluded by stating that, at the police station, the plaintiff
signed a warning statement.
[9]
Under cross examination, Ngqokoma conceded that if the offence of
assault GBH was
not listed in schedule 1, he would not have arrested
the plaintiff without a warrant. It was put to him that the offence
of assault
GBH is not listed under schedule 1, and for that reason
the arrest was unlawful. Ngqokoma disputed that and insisted that
assault
GBH is a schedule 1 offence.
[10]
Ngqokoma was further probed about an entry in the investigation diary
on 08 May 2016 reflecting
that the J88 affidavit was only filed on
that date. He disagreed and stated that the J88 and the J88 affidavit
were filed on 04
March 2016. He stated that they were not filed on
different dates and, from his observation, there could have been an
error that
was made by a person who was making an entry in the diary
to separate the J88 from J88 affidavit. He disagreed with the
proposition
that there was no J88 in the docket when he received it.
Ngqokoma was also asked about why he did not mention in his evidence
in
chief that at the time he received the docket, the J88 was already
in the docket. He stated that there was no need to mention it.
[11]
Ngqokoma was also asked about the fact that, according to the
investigation diary, the victim’s
statement was only filed in
the docket on 08 March 2016. He stated that he is not the one who
made the entry but persisted that
the victim’s statement was
already in the docket when he received it on 07 March 2016.
[12]
Lastly, Ngqokoma was also asked about the reason for arresting the
plaintiff instead of summoning
her to appear in court. In response,
Ngqokoma stated that the reason why the plaintiff was not summonsed
is that she was arrested
for having committed a schedule 1 offence.
[13]
The second witness that was called to testify was Colonel Ndumiso
Mali (Mali). In essence,
his evidence corroborated the evidence
of Ngqokoma about the manner in which the plaintiff was arrested.
[14]
Under cross examination, Mali was asked about the reason for not
issuing a warrant of arrest
before arresting the plaintiff. He stated
that the issuing of a warrant of arrest depends on the seriousness of
the offence and
the discretion of the investigating officer.
[15]
Mali was further asked whether he knew the date in which the victim’s
statement was filed
in the docket. He stated that he does not know,
but what he knows is that when they went to look for the plaintiff,
the statements
were already in the docket. When probed about the
entry in the investigation diary that shows that the victim’s
statement
was only filed on 08 March 2017, Mali advised the date
reflected in the diary does not necessarily mean that the activity
occurred
on the same date. He stated that the J88 affidavit and the
statement of the victim were already in the docket when they received
it, and he did not check the diary.
[16]
Lastly, Mali was asked whether he heard the plaintiff explaining to
Ngqokoma that she was falsely
accused by the complainant because the
complainant was earlier arrested for assaulting the plaintiff. Mali
stated that he did not
hear what Ngqokoma and the plaintiff were
talking about because he was not paying attention to what was said.
[17]
At this stage the defendant’s case was closed.
The
plaintiff’s case through the evidence
[18]
After the defendant’s case was closed, the plaintiff testified.
She stated that on 07 March
2016, she was stopped by the police at
Lutshaba nature reserve whilst she was coming from Mthatha dam. She
saw Asithandile (the
complainant) and the two unknown gentlemen. The
gentlemen alighted the police vehicle and approached her. One of them
was carrying
a police docket. They informed her that they are the
police and the one who was carrying the docket was Ngqokoma. They
told her
that they were arresting her. She had two passengers at the
time who hitchhiked, and she requested to first drop them to their
destinations and to follow the police to the police station with her
own car. They agreed and followed her until they reached central
police station. At the police station Ngqokoma asked her
whether she knew Vathiswa. He told her that Vathiswa and him were
born in the same year (1975) and they attended the same school. He
asked Ngqokoma as to who Vathiswa was and whether he was referring
to
Asithandile and he confirmed. She stated that there were other police
officers, and Mathanda was one of them. Mathanda mocked
her by
stating that even if you are rich, you will be in the police cells
like the poor. She then asked to call her lawyer, and
Ngqokoma
refused and advised her that he had no time for that as he was
attending classes at ‘UNITRA’. Subsequently
she was given
the phone to call her attorney, and thereafter she was taken to the
police cells.
[19]
Under cross examination she confirmed that her lawyer arrived, but at
the time Ngqokoma had already
left. She was also probed about the
inconsistencies between the date that she gave in her warning
statement and the statement she
made earlier when she was laying a
charge of assault against the complainant. In her warning statement,
she said she was assaulted
on 01 March 2016, and her earlier
statement she said she was assaulted on 29 February 2016. In
reply, she stated that she
was attacked on 29 February 2016 and that
she does not know anything about assaulting a child.
[20]
The case for the plaintiff was then closed.
Analysis
of the evidence
[21]
The main issue is whether Ngqokoma was correct in relying on the
provisions of section 40(1)(b)
in justifying the arrest of the
plaintiff without a warrant.
[22]
It is common cause that the plaintiff was arrested without a warrant,
and Ngqokoma relied on
the provisions of section 40(1)(b) in
justifying the arrest of the plaintiff without a warrant. Section
40(1)(b) provides that
a peace officer may, without warrant, arrest
any person whom he reasonably suspects of having committed an offence
referred to
in schedule 1, other than an offence of escape from
lawful custody. In schedule 1, various offences are listed and
of relevance
to this case is the mention of “assault when a
dangerous wound is inflicted.” There is no mention in
schedule
1 of an assault with intent to do grievous bodily harm.
[23]
The injuries sustained by the victim as per the J88 are ‘soft
tissue injuries.’ Was
the soft tissue injury suffered by
the victim in this case a dangerous wound? It is trite that in civil
proceedings the party that
bears the onus must, in order to succeed,
prove its case on a balance of probabilities. The defendant
therefore bears the
onus to prove that the wound that was allegedly
inflicted by the plaintiff on the victim was a dangerous one. In
R
v Jones
[3]
the court described a dangerous wound as one which itself is likely
to endanger life or the use of a limb or organ. There is no
evidence
presented on behalf of the defendant that suggests that the plaintiff
inflicted
a
dangerous
wound
on the victim. In
De
Klerk v Minister of Police
[4]
Shongwe ADP made the following remarks:
“
What
is clear is that the arresting officer relied on the statement by the
complainant and the J88 only, when she made the decision
to arrest.
Clearly, seen objectively, that was insufficient. The arresting
officer failed to investigate further the circumstances
of the
assault itself, whether the wound was inflicted intentionally or
whether it came about accidentally during the scuffle.
The nature and
the seriousness of the wound was never investigated. The arresting
officer wrongly assumed that the assault was
committed with intent to
do grievous bodily harm and that the offence is listed in Schedule 1.
Arrest without a warrant in these
circumstances was not lawfully
permissible. In my view the respondent failed to establish the
jurisdictional facts, in particular
that the appellant committed an
offence referred to in Schedule 1. I find that the appellant
succeeded to prove that the discretion
was exercised in an improper
manner.”
[24]
From his evidence, it is clear that Ngqokoma wrongly assumed that the
offence of assault GBH
falls into the category of schedule 1. He did
not testify that he held the suspicion that the plaintiff had
inflicted a dangerous
wound on the victim. Therefore, the defendant
has failed to discharge the onus of proving that the arrest and
detention of the
plaintiff without warrant was lawful.
Costs
[25]
The plaintiff has been victorious against
defendant and in the circumstances of this case it is reasonable that
the defendant should
bear the costs of the action.
[26]
In the result I make the following order.
(a)
The plaintiff’s claim for unlawful arrest and detention
succeeds;
(b)
The defendant is held liable to the plaintiff for proven or agreed
damages
consequent upon the plaintiff’s arrest by members of
the defendant on 07 March 2016 and the plaintiff’s resultant
detention
from 07 March 2016 to 08 March 2016;
(c)
The quantum of damages to which the plaintiff is
entitled shall be determined on a date to be arranged with the
Registrar of this
Court;
(d)
The defendant shall pay the costs of the action incurred thus far.
___________________
S
M MBABANE
JUDGE
OF THE HIGH COURT (ACTING)
Appearances:
For
the plaintiff:
Mr
A. Zono
From
A.S. Zono & Associates
Suite No. 153 -1
st
Floor
ECDC Building
MTHATHA
For
the defendant:
Ms
S. Mncedane
From
Mda Mncedane Inc
No. 71 Cumberland Street
MTHATHA
Date
heard:
21,22, & 27 February 2019
Date
of Judgment: 21 May 2019
[1]
1986 (3) SA 568
(A) at 598 E-F.
[2]
Act 51 of 1977.
[3]
1952 (1) SA 327
E at 332 D-F.
[4]
[2018]
2 All SA 597
(SCA). See also Qwaba v Minister of Safety and Security
(CA&R58/2017) [2018] ZAECMHC 32 (12 June 2018).