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[2019] ZAECMHC 26
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Sigonya v Minister of Police and Another (342/2017) [2019] ZAECMHC 26 (22 May 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION: MTHATHA
Case No. 342/2017
In
the matter between:
KOKELA
SIVUYISE YANGA SIGONYA
Plaintiff
And
MINISTER
OF
POLICE
1
ST
Defendant
NATIONAL
DIRECTOR OF PUBLIC PROSECUTIONS
2
nd
Defendant
JUDGMENT
JOLWANA
J
[1]
Plaintiff instituted an action for damages suffered as a result of
unlawful arrest and detention against the first defendant
and
malicious prosecution against the second defendant. While the
witness for the first defendant testified first in justification
of
the arrest and detention, I consider it convenient to deal with
plaintiff’s evidence first.
[2]
In his particulars of claim plaintiff alleges that on 24 November
2015 at Walter Sisulu University, Nelson Mandela Drive, Mthatha
(WSU)
he was wrongfully arrested and detained by members of the South
African Police Service for alleged possession of drugs.
He
alleges that police had no reasonable suspicion and justifiable cause
and without any warrant authorising his arrest.
He was detained
at Central Police Station from 24 November 2015 and was granted bail
on 26 November 2015.
[3]
Plaintiff testified that he was a student at the University studying
towards a Bachelor of Education in Humanities at the time
of his
arrest. He stayed at Unit 42F, Baghdad one of the student
residences at WSU, having moved therein three weeks before
the
incident in preparation for examinations. He ordinarily resided
at Mbuqe Extention in Mthatha. In that Unit he
stayed with
three other students, Lizalise Ngqukumba, Avuzwa Mgilane and
Siphamandla Mbhele (Siphamandla).
[4]
They were sleeping in their room when at about 02h00 in the early
hours of the morning they were woken up by a loud knock which
was as
if the door was being kicked. He asked who it was and the
response was that it was the police. He opened the
door and saw
a lot of police officers pointing guns at him. The police
entered and ordered them to stand on the bed and face
the wall.
They were searched and police did not find anything in his person.
The police did not produce any search
warrant and had no name tags on
them but were in uniform.
[5]
Police took a Spar Supermarket plastic bag which was under the bed
and had dagga in it. They asked who it belonged to
and
Siphamandla said it was his. One of the police officers took
him outside the room, handcuffed him and asked him for information
on
who was dealing in drugs and how was the dealing done. He told
that police officer that he did not know anything about
drugs.
He was then assaulted.
[6]
He was taken back to the room where they were told to get dressed as
they were being taken to the police station. On arrival
at the
police station officer Darman put on his name tag and did some
paperwork. They all told Darman that they would not
be making
any statements and would make their statements in court. He was
under police control from about 02h00 on Saturday
morning when police
arrived in his room until he appeared in court on 26 November 2015.
During the first court appearance
they all were granted bail.
[7]
Under cross examination he testified that he was shocked when he was
shown the plastic bag with dagga as he did not expect that
there
would be an illegal substance in his room. As to the presence
of the dagga processing equipment like the tin and bottle
heads found
in the window seal by sergeant Baca, the arresting officer, he
testified that Siphamandla would know about those things.
He
knew that Siphamandla was using dagga a lot, but on that day he did
not see him smoking dagga and he was not sure when was the
last time
he saw Siphamandla smoking dagga.
[8]
He did not know why Siphamandla had a plastic bag with a dagga plant
that was not dried. When asked about sergeant Baca’s
testimony that she had asked them about the ownership of the dagga
and the other things that were found in their room Siphamandla
said that the money was his and was proceeds of dagga, he said he was
relieved because he knew for a fact that he did not own any
dagga.
He, however, insisted that Siphamandla had owned up to the dagga as
well and that Siphamandla admitted to everything
to the police in
their room. When they were at the back of the police van on
their way to the police station Siphamandla
told them that those
things that the police found were his. He insisted that he
personally did not know about the presence
of drugs in that room and
that Siphamandla had admitted to the police that the dagga was his.
It was given to him by his
grandfather as treatment for flu.
[9]
Plaintiff also came up with a new version that was never put to
sergeant Baca who testified for the first defendant and which
he also
did not mention in his evidence in chief. That version was that
before the police went to their room they started
in another room.
It was in that other room where there was dagga dealing and smoking.
He also said that the occupants
in that room had dagga pipes and a
cutting torch used in drugs which sergeant Baca testified about.
The occupants of that
other room later told him and his roommates
that they were the ones who led the police to their room where they
were arrested.
He further testified that police should have
done their work properly and had they done so they would have
arrested the people
in the other room and Siphamandla, his roommate,
not him. After his evidence plaintiff closed his case.
[10]
I find it strange that this new version, important as it was, was
never put to sergeant Baca. It is even more strange
and defies
logic that he did not place this version before court when he
testified in his evidence in chief.
[11]
For the first defendant sergeant Baca testified that on 24 November
2015 she and her colleagues were on night duty doing patrols
in
Mthatha in town when they received information from their radio
control that at Unit 42F, Baghdad, a residence at WSU there
was drug
dealing and smoking. They proceeded to that Unit and found the
door slightly opened and the room was smokey.
They knocked and
one of the four occupants opened for them. Other occupants were
lying in bed but she did not know whether
they were actually sleeping
or just lying there.
[12]
They asked for and were granted permission to search the occupants
and the room after having introduced themselves. As
they were
searching the occupants she noticed a Spar Supermarket plastic bag
which had a plant of dagga with roots. On the
window seal there
was a tin container with ground or processed dagga. She asked
them to whom did the items belong.
They pointed at each other
with some saying the plant was Siphamandla’s. Siphamandla
denied it saying only the money
which was also in the plastic bag was
his. He said he got the money from selling drugs and that his
drugs were finished.
[13]
In the room there was equipment normally used in processing and
smoking drugs like a cutting torch, pipes and bottle heads.
They decided to investigate further. One of the young men in
that room said he stayed at Northcrest Township in Mthatha.
They arrested all four young men for possession and dealing in dagga
and drove with them to Northcrest to conduct further investigations
at the place of residence of one of the young men who said he stayed
at Northcrest. However they did not find any drugs in
his room
save for money bags that are normally used in bunching drugs.
[14]
From Northcrest they proceeded to Central Police Station. They
told them their rights and the arrestees said that they
would not
make any statements to the police and that they would make their
statements in court. Thereafter she never heard
about the case
nor was she subpoenaed to give evidence.
[15]
Under cross examination she testified that when they received
information from their police radio control they were told that
the
drug dealing and possession was taking place at unit 42F in Baghdad
at WSU. They then proceeded straight to that room.
They
did not have a warrant of arrest and that at 02h00 am they could not
have applied for a warrant of search. Waiting until
offices
opened could have resulted in the evidence disappearing. She
testified that when she received information in circumstances
of this
case she was entitled to verify the information and if illegal
activities were taking place she was entitled to effect
an arrest.
She did not need a warrant of arrest as their information was that
crime was in progress at that time.
[16]
The second defendant applied for the absolution from the instance on
the basis that while plaintiff alleged in his particulars
of claim
all the requirements for a claim for malicious prosecution against
second defendant, plaintiff failed to deal with all
of them in his
evidence. In
Minister of Police and Constitutional
Development v Moleko
(131/07)
[2008] ZASCA 43
(31 March 2008) Van
Heerden JA had this to say:
“
[8]
In order to succeed (on the merits) with a claim for malicious
prosecution, a claimant must allege and prove –
(a) that the
defendants set the law in motion (investigated or instituted the
proceedings);
(b) that the
defendants acted without reasonable and probable cause;
(c) that the
defendants acted with ‘malice’ (or animo injuriandi); and
(d) that the
prosecution failed.”
[17]
Mrs Qikila counsel for the second defendant argued that while
plaintiff has made all the necessary allegations in his particulars
of claim plaintiff failed to prove at least two of those
requirements. The plaintiff, so the argument went, failed to
deal
with how the second defendant acted without reasonable and
probable cause and he also failed to show how the second defendant
dealt
with the matter maliciously.
[18]
I was surprised that the claim against the second defendant on the
basis of malicious prosecution was even instituted.
The
plaintiff’s own version was that on the day of his arrest it
was Saturday at about 02h00 am on 24 November 2015.
He appeared
in court on 26 November 2015 and at that very first court appearance
he was granted bail. On his second appearance
charges against
him were withdrawn. Plaintiff simply did not deal with how the
conduct of the second defendant in dealing
with the matter could even
be remotely said to have been malicious.
[19]
On the evidence before me it became clear that the claim against the
second defendant for malicious prosecution should not
have been
mounted at all. It lacked merit from the beginning and was
doomed to fail. I granted second defendant’s application
for
absolution from the instance.
[20]
In this case the evidence of sergeant Baca was that they were on
night duty on 24 November 2015 doing patrol in and around
the town of
Mthatha. They received information through their radio control
that there was dagga dealing and smoking at Unit
42F Baghdad
residence, WSU. They proceeded to that unit and found the door
slightly opened. They knocked and were let
in by one occupant.
They searched the occupants and did not find anything on any of
them. They, however, found a Spar
Supermarket plastic bag with
a dagga plant in it under the bed. They also found a tin with
crushed or ground dagga on the
window seal. They also found a
cutting torch and bottle heads in the room which in their experience
as police are used in
preparing and smoking dagga.
[21]
They questioned the occupants as to whom did those things belong.
Siphamandla said that the money which was with the
dagga plant was
his. He got it from selling dagga. He, however, disavowed
any knowledge about the dagga itself and
nobody owned up to either
the dagga or the other dagga processing equipment found in their
room. For this reason they arrested
all of them including the
plaintiff.
[22]
Plaintiff submitted that he should not have been arrested because
Siphamandla had told the police that the dagga was his.
I
disagree. It was the plaintiff’s evidence in chief that
when they got to the police station they all elected not
to make a
statement and said they would make the statements in court.
This is also what sergeant Baca said in her evidence.
In this
regard both plaintiff and sergeant Baca are in agreement. This
is also confirmed by their warning statements signed
by all four of
them that very morning. In their warning statements they,
including Siphamandla, elected to remain silent
and to consult their
legal representatives.
[23]
If it is indeed true, as plaintiff wanted me to believe, that in the
presence of the police in their room Siphamandla owned
up to the
dagga and that he repeated this admission to them alone at the back
of the police van on their way to the police station
and this was a
relief to him, I find it strange that when they got to the police
station Siphamandla did not repeat the admission.
I also find
it strange that plaintiff kept quiet and did not tell the police that
Siphamandla had admitted to ownership of the
dagga twice in his
presence even though he said that he had been relieved when
Siphamandla made the admission to the police in
their room.
[24]
This has nothing to do with the constitutional right to remain
silent, which is sacrosanct. However, the version of sergeant
Baca that nobody owned up to the dagga or any of the items found in
that room is consistent with the arrestees’ having consistently
elected, as they are entitled, to remain silent as reflected in their
warning statements. For the plaintiff to expect the
court to
accept that in the room Siphamandla exonerated them and yet at the
police station all of them exercised their right to
remain silent and
to consult their legal representatives is, in my view, a misguided
after thought.
[25]
The actions of the police were authorized in terms of
section
40(1)(h)
of the
Criminal Procedure Act 51 of 1977
which reads as
follows:
“
40(1) A peace officer may
without a warrant arrest any person-
(h)
who is reasonably suspected of committing or of having committed an
offence under any law governing the making, supply, possession
or
conveyance of intoxicating liquor or of dependence – producing
drugs or the possession or disposal of arms or ammunition.”
[26]
This sub section requires police to have a reasonable suspicion. I
can do no better than refer to the well-known and often
quoted case
of
Mabona and Another v Minister Law and Order and Others
1988
(2) SA 654
(SE) in which the court explained the law on reasonable
suspicion in the following terms:
“
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.”
[27]
This Court had occasion to deal with facts that are, in my view, on
all fours with this matter. In
Minister of Police v Matroos
2018 JDR 2065 (ECG) a judgment penned by Notshe AJ to which Lowe J
concurred the court said:
“
[20]
I am of the view that on those facts the suspicion that the
respondent was committing or committed on offence under a law
governing the possession of dependence – producing drugs was
reasonable. Even if Tanya had told the arresting officer
that
the dagga belonged to her it would not have changed the
reasonableness of the suspicion.
[21]
It was argued on behalf of the respondent that the information that
the police had to the effect that dagga was being sold
at the house
and that Tanya admitted that the dagga was hers made the suspicion
unreasonable. I disagree. It must be
remembered that what
is required is a suspicion and not certainty. The arresting
officer cannot be expected to analyse the
information as if he is
considering to convict an arrestee.”
[28]
The above legal position is trite and needs no emphasis or
elaboration. It is as articulated in
Mabona & Others v
Minister of Law and Order and Another
and many other cases.
It seems to me that the claim against both defendants was
unmeritorious from the start and therefore
ill-advised. It is
unfortunate that plaintiff was somehow led to believe that because he
was arrested and spent some time
in incarceration in conditions that
are less than ideal, he was necessarily entitled to compensation.
On a careful
analysis of this case which should inform the decision
to claim against either of the defendants, I cannot see how plaintiff
could
have been advised that he had a chance, even a remote one of
succeeding in a claim for compensation for unlawful arrest and
detention
and malicious prosecution.
[29]
In the result the plaintiff’s claim against both defendants
must fail. The following order shall issue:
1.
The plaintiff’s claim is dismissed with costs.
________________________________
M.S.
JOLWANA
JUDGE
OF THE HIGH COURT
Appearances:
Counsel
for the Plaintiff: S.M. LUZIPO
Instructed
by: MK MAJAVU & ASSOCIATES
MTHATHA
Counsel
for the 1
st
Defendant: J.J. BEMBE
Counsel
for the 2
nd
Defendant: C.N. QIKILA
Instructed
by: STATE ATTORNEY
MTHATHA
HEARD
ON: 16 MAY 2019
DELIVERED
ON: 22 MAY 2019