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[2019] ZAECMHC 42
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Mtshemla v Minister of Police (4646/17) [2019] ZAECMHC 42 (20 August 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
[EASTERN
CAPE LOCAL DIVISION, MTHATHA]
[Not
Reportable]
CASE
NO: 4646/17
Heard
on: 07/08/19
Delivered
on: 20/08/19
In
the matter between:
MTHOBELI
MTSHEMLA
Plaintiff
and
THE
MINISTER OF POLICE
Defendant
JUDGMENT
NHLANGULELA
DJP
[1]
The plaintiff claims against the defendant payment of a total sum of
R600 000,00
as damages for unlawful arrest; unlawful detention
and
contumelia
. It is averred in the plaintiff’s
particulars of claim that the damages aforementioned arose from an
incident of 18
January 2016, at Tsolo where the plaintiff was
arrested by certain members of the police without a warrant, and over
whom the defendant
has control and is vicariously liable to pay for
delicts committed by them.
[2]
Pursuant to the arrest, the plaintiff was detained in a police cell
whilst awaiting
finalization of a trial until released after a period
of six months due to withdrawal of criminal charges by the
magistrate.
It is pleaded further that a court of law had not
ordered that the plaintiff be detained; the arresting officer did not
have a
reasonable suspicion that an offence referred to in Schedule 1
to the Criminal Procedure Act 51 of 1977 (the CPA) had been
committed;
and that the police had failed to conduct investigation
that was necessary for them to formulate a lawful suspicion.
[3]
A plea proffered on behalf of the defendant is that the arrest and
detention are admitted,
but a justification therefor is premised on
the provisions of s 40 (1)
(b)
of the CPA, which read:
“
A peace officer
may without warrant arrest any person-
(b)
w
hom he reasonably suspects of having
committed an offence referred to in Schedule 1, other than the
offence of escaping from lawful
custody.”
[4]
The legal position regarding justification of a warrantless arrest in
terms of s 40
(1)
(b)
of the CPA is stated as follows in the
case of
Duncan v Minister of Law and Order
1986 (2) SA 805
(A)
at 818G-H:
“
The so-called
jurisdictional facts which must exist before the power conferred by s
40 (1)
(b)
of the
present Act may be invoked, are as follows:
(1)
The arrestor must be a peace officer.
(2)
He must entertain a suspicion.
(3)
It must be a suspicion that the arrestee
committed an offence referred to in Schedule 1 to the Act (other than
one particular offence).
(4)
That [the] suspicion must rest on reasonable
grounds. If the jurisdictional requirements are satisfied, the
peace officer
may invoke the power conferred by the subsection, ie he
may arrest the suspect. (My added emphasis.)
5]
Mr Ntsikelelo Jowel Gadezweni, a Warrant Officer in the SAPS,
testified on behalf
of the defendant. He has been in the
service of the SAPS for 31 years. He told the court that on 18
January 2016 he
was on duty and stationed at the charge office of
Maclear Police Station. At about 2:30 pm of that day he
received a telephone
call from the sub-headman of Ngcele
Administrative Area, Tsolo, who reported that the local people had
converged in his homestead
and keeping the plaintiff in their custody
for a reason that the plaintiff had raped an elderly lady. Both
the plaintiff
and the victim were residents in the locality as
neighbours. The witness duly accompanied by Mr Mbulali, a
Constable in the
SAPS drove to the homestead of the sub-headman where
they indeed found the plaintiff sitting on the ground and surrounded
by a
hostile crowd of local people. When asked by the
sub-headman to interrogate the plaintiff in the presence of the local
people,
he refused. The witness decided to take the plaintiff with
him to the place of residence of the victim to verify if rape had
occurred.
Upon meeting and interrogating the victim she pointed out
the plaintiff as being the person who had raped her, whereupon the
witness
handcuffed the plaintiff and drove him to the police station
where the victim laid a charge of rape against the plaintiff.
Thereafter, the police obtained a written statement from the
plaintiff and locked him up in a police cell with a view of
causing
him to appear before court to face a trial.
[6]
The version of Mr Gadezweni was to a large extent common cause.
The plaintiff
also testified. He denied that he had raped the
victim, contending that the victim was mistaking him for one of his
brothers.
But he could not gainsay the fact that they were
neighbours who knew each other very well. The plaintiff also
challenged
the evidence of Mr Gadezweni saying that he was handcuffed
before the victim pointed him out. But the plaintiff raised
those
disputes for the first time when he testified rather than doing
so during cross-examination. For that reason he left the
probabilities of Mr Gadezweni’s evidence intact. The
plaintiff’s version is incredible. It falls to be
rejected. I have no hesitation in accepting the version Mr
Gadezweni.
[7]
It is common cause that the untimely death of the victim led to the
withdrawal of
the charge of rape against the plaintiff at the time
when he had already spent approximately six months in a police cell.
But that notwithstanding, it was contended on behalf of the plaintiff
that in the absence of a conviction for rape, the detention
was
unlawful
[8]
On the accepted version of the defendant there is ample proof that
when Mr Gadezweni
arrested the plaintiff he was a peace officer who
entertained a suspicion that the plaintiff had committed an offence
of rape that
is referred to in Schedule 1 to the
CPA;
and that he, objectively assessed (see:
Mabona
and Another
v
Minister of Law and Order And Others
1988
(2) SA 654
(SE) at 658E-H) had reasonable grounds to effect the
warrantless arrest as envisaged in s 40 (1)
(b)
of the CPA. To that extent the jurisdictional factors as set
out in the case of
Duncan,
supra,
have been
met.
[9]
Further, I find that the detention of the plaintiff following upon
his arrest until
he appeared in court for the first time, in
compliance with s 50 (1)
(a)
of the CPA, was justified by Mr
Gadezweni as is envisaged in the case of the
Minister of Safety
and Security
v Slabbert
[2010] 2 All SA 474
(SCA) at para
20, which reads:
“
The
right to dignity and freedom and security of the person are core
values of the Constitution and any arrest and detention of
a person
amoun
ts
to a
prima facie
infringement of these rights. Our common law adopted the same
approach and it is for this reason that the police, if challenged,
have to justify an arrest and detention. This means that the
police bear the onus of proving that the arrest and detention
are not
wrongful.”
[10]
A claim for damages relating to detention subsequent to the
plaintiff’s first appearance
in court is not pleaded in the
plaintiff’s particulars of claim. All that is mentioned
is that the plaintiff was detained
in a police cell for a period of
six months until released when “charges against him were all”
withdrawn. There
was not sought an amendment of the pleadings
following upon the hearing of plaintiff’s oral evidence that he
had remained
in police custody for such a long period of time.
Consequently, there was no obligation on the part of the defendant to
justify
the detention of the plaintiff after his first appearance in
court. Neither does this Court have an obligation to adjudicate
upon that part of detention period. It may as well be important
to state that the court in
Minister
of Safety and Security v Tyokwana
2015
(1) SACR 597
(SCA) significantly flagged and corrected the
mis-statement of the law in the case of
Mthimkhulu
and
Another v
Minister of Law and Order
1993
(3) SA 432
(E) (at 438C-F) that detention that has been ordered upon
first appearance of a suspect in court cannot be lawful if arrest
which
resulted in such detention being ordered was unlawful.
With reference to the case of
Isaacs,
supra,
it was
held in
Tyokwana
that
Mthimkhulu
was wrongly
decided.
[11]
Consequently, the defendant cannot be held liable for unlawful arrest
and detention. The
head of damages under the caption:
“Tortured” for which the plaintiff seeks compensation is
not supported by evidence
that was led in this case. Such a
claim must also fail.
[12]
On costs, I am of the view that the costs should follow the result.
I have not been persuaded
otherwise.
[13]
In the result the following order shall issue:
The
plaintiff’s claim for unlawful arrest, unlawful detention and
torture be and are hereby dismissed with costs.
_______________________
________
______________
Z.
M. NHLANGULELA
DEPUTY
JUDGE PRESIDENT OF THE HIGH COURT
MTHATHA
Counsel
for the plaintiff :
Adv. Mhambi
Instructed
by
: Messrs N Mketsi Attorneys
MTHATHA.
Counsel
for the defendant :
Adv. N.D. Ngadlela
Instructed
by
: Office of the State
Attorney
MTHATHA.