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[2019] ZAECMHC 55
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Mathambo v Minister of Police (3166/2017) [2019] ZAECMHC 55 (25 September 2019)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, MTHATHA)
CASE
NO 3166/2017
In
the matter between:
IVIWE
MATHAMBO
Plaintiff
and
MINISTER
OF
POLICE
Defendant
JUDGMENT
NQUMSE
AJ:
[1]
The plaintiff sued the defendant for damages in the amount of
R1 000 000,00,
arising from an allegedly unlawful arrest
and detention without a warrant.
FACTS
[2]
The plaintiff and his friend Ricardo Gumede (Gumede) were arrested
and detained on
two separate incidents, namely on 25 December 2015
and on 28 December 2015. However, the defendant relies on
section 40(1)(b)
of the Criminal Procedure Act 51 of 1977 (the Act)
and contends that the arrest and detention of 25 December 2015 was
lawful.
[3]
In support of its defence the defendant led evidence of Dumisa Ngongo
a sergeant in
the police service attached to the Crime Prevention
Unit. He testified that on 25/12/2015 he was on duty together
with Constable
Mbewu who has since died. Whilst on duty, they
received information that there were three young men at a corner
house at
Ndudula Street in Mthatha who were in possession of an
unlicensed firearm and were pointing the said firearm to people who
were
passing by.
[4]
They hurriedly went to the place they were informed about and found
the plaintiff
and Gumede, both seated inside a white Toyota Tazz.
They introduced themselves as police and sought permission to search
them as well as their car. Upon permission being granted, they
searched them and found an unlicensed firearm underneath the
driver’s
seat of the car with a magazine that was loaded with 2 rounds of
ammunition. The plaintiff, whom he asked
about the firearm,
said he had seen Anorld Solani (who is also referred to as Moerane)
pointing the firearm at passers-by.
This response was also
echoed to by Gumede.
[5]
Whilst he was still talking to the pair, Arnold appeared apparently
coming from the
toilet. He also questioned him about the
firearm, and Arnold said he saw the firearm underneath the car seat.
He
took it and went to point at his friend in a playful
manner. Arnorld further told him that he thereafter returned
the firearm
underneath the seat where he had found it. After
Anorld told them that the car belonged to a certain Mr Teddy, they
went
to question him and he also denied any knowledge of the firearm.
[6]
They thereafter arrested all three namely, the plaintiff, Gumede and
Arnold for possession
of an unlicensed firearm and took them to the
police station at Ngangelizwe. At the police station they were
charged and
their warning statements were obtained. As a result
of obtaining further information regarding the employment and
residential
addresses of the plaintiff and Gumede, he released them
after they had been issued with J127 forms (notice to appear) and
warned
them to appear in court on Monday, 28 December 2015. As
part of confirming their addresses, he transported them back to their
homes.
[7]
In cross examination Sgt Ngongo was asked why he had arrested both
the plaintiff and
Gumede when Arnold had admitted that he had earlier
possessed the firearm and later placed it under the car seat.
His response
was that upon their arrival at the scene, they found the
firearm in the vehicle in which the plaintiff and Gumede were
occupants.
He denied that he ordered the plaintiff and Gumede
to return to the police station on Monday, in order to have them
re-incarcerated.
According to him, he only advised them to
appear in court on Monday and if they needed transport they are free
to go to the police
station where they will receive assistance with
transport. He also stated that he does not know how it came
about for the
plaintiff and his companion to be re-incarcerated on
Monday and why they had to be released on condition they paid bail
when they
appeared in court.
[8]
He also stated that he was informed that the charges against the
plaintiff and Gumede
were withdrawn owing to an admission made by
Arnold that he is the one who owned the firearm and who had placed it
underneath the
car seat. He further stated that the plaintiff
and his companion except Arnold were never detained in the cells on
25 December
2015. This is notwithstanding their names appearing
on the cell register commonly known as the SAP 14.
[9]
The court asked how was it possible for the plaintiff and Gumede who
after they had
been issued with J127 forms to appear in court on
Monday ended up in police custody. His response was that he
assumes that
when they presented themselves at the police station on
Monday, they were not carrying their J127 forms. As a result
they
were included in the SAP 216, (Body Receipt Register) in order
to be accounted for in the trip to the court. To a question,
for how long were the plaintiff and his companion in their custody on
25 December 2015. he said they were in their custody for
about 2
hours.
[10]
The plaintiff testified briefly that on 25 December 2015 he was at
his place at Ngangelizwe when
he was asked by Gumede to fetch him
from town and they thereafter went to plaintiff’s place and
consumed alcohol. Arnold,
who stays in the same yard approached
them and requested that they should listen to music in a Toyota Tazz
vehicle that was parked
in that yard.
[11]
At the time Arnold was carrying a firearm with which he pointed at a
certain man who came to
buy from a spaza shop that was also in the
same yard. He further testified that when they got to the said
vehicle, Arnold
sat in the front seat whilst he and Gumede out of
fear occupied the back seat. After a while Arnold alighted and
went to
the toilet. It is at that stage when the police arrived
in three police vehicles. They ordered them to alight from the
vehicle and to lie down on the ground. They were searched and
when nothing was found in them, a lady police officer searched
their
car and discovered a firearm underneath the driver’s seat.
[12]
He further testified that when the police intimated that he knows
something about the firearm,
he told them that the person who was
seated in the front seat was Arnold. At that moment Arnold
appeared from the toilet.
He was also searched and questioned
about the firearm and his response was that he bears no knowledge of
the firearm. Arnold
suggested that the firearm may belong to
Teddy the owner of the vehicle. He further testified that
around 17:00 they were
taken to the police station where they were
caused to make statements in one of the rooms. They were
subsequently taken to
a cell for a short-while whilst Arnold was
taken to a different cell. Shortly after they were put in a
cell they were released
by police officers who informed them to
collect their cellphones from Sgt Ngongo. Sgt Ngongo informed
them that he releasing
them as a favour. He further told them
not to disclose to anyone of their release as this would cause him
problems.
[13]
According to plaintiff, Sgt Ngongo further informed them that he will
collect them on Monday
morning to take them back to the police
station so that it should not be noticed that they were released from
custody. He
further testified that on Monday morning when he
was fetched by Sgt Ngongo he found Gumede already in the police
vehicle.
They were taken to the police station where they were
locked up in the cells to join other awaiting trial inmates who were
going
to be transported to court.
[14]
He further testified that at court, they were together with the other
inmates put into the court
cells and later appeared in court and were
granted bail of R500,00 each. He was released from the court
cells around 11:00
and 12:00 after his bail had been paid.
[15]
He further testified that as a result of this incident his mother who
was responsible for his
school fees disowned him. This resulted
in him going to stay with his aunt who also undertook to take over
the responsibility
of paying his school fees.
[16]
In cross-examination he said that he did not inform the police on
Monday, that they had been
released previously because Sgt Ngongo had
informed them that their release on 25 December 2015 was a favour.
He further
denied that he went to the police station on his own
volition and neither was he given a notice to appear in court on 28
December
2015, although he was made aware that they will be appearing
in court on the said Monday.
[17]
Gumede testified briefly that on 25 December 2015 he paid the
plaintiff a visit. Whilst
he was at the plaintiff’s
residence a, certain Arnold Moerane arrived in possession of a knife
and a firearm. Arnold
went to the street and pointed the
firearm at people who were passing by. He later came back and
asked them to go with him
to listen to music in a Toyota Tazz that
was parked outside. Since they were scared of Arnold he and the
plaintiff occupied
the back seat whilst Arnold sat in the driver’s
seat. After a while Arnold went to relieve himself in the
toilet.
[18]
He further testified that whilst they were in the car with the
plaintiff three police vehicles
arrived. The police ordered
them to lie on the ground in order for them to be searched. At
the same time another police
officer searched the vehicle and
discovered a firearm. When they were asked to whom it belonged,
he said it belonged to Arnold.
When Arnold came back, he was
also questioned as to whom the firearm belonged and he said it
belonged to Teddy. They were
subsequently arrested and taken to
the police station.
[19]
He further testified that whilst being questioned at the police
station he overheard Arnold saying
he and the plaintiff had no
knowledge about the firearm and that he, Arnold, was the one who knew
about it. This caused Sgt
Ngongo to release both himself and
the plaintiff and gave them a lift back to their residences to enable
him to confirm their residential
addresses. Sgt Ngongo also
informed them that he will fetch them on Monday morning.
[20]
Sgt Ngongo came to fetch him on Monday morning. When he got to
police station the plaintiff
was already at the police station.
They were both detained in a cell and later transported to court.
They were kept
in the court cells until their appearance in court and
released on condition they each paid bail of R500,00.
[21]
In cross examination Gumede distanced himself from what appears in
his warning statement which
is to the effect that the police had
searched the vehicle after they had asked for permission to do so.
He also denied that
they were given documents to appear in court by
Sgt Ngongo.
ISSUES
[22]
The issues to be determined are crisp and they are –
22.1
whether a reasonable police officer in the position of the arresting
officer would have believed
that the plaintiff had committed a
Schedule 1 offence read with the provisions of
section 3
of the
Firearms Control Act 60 of 2000
.
22.2
whether the arrest and detention of plaintiff more specifically on 25
December 2015 was unlawful
as well as his detention on 28 December
2015; and
22.3
the issue of quantum.
THE
LAW
[23]
In terms of section 40(1)(b) of the Act:
“
A
peace officer may without a warrant arrest any person –
(b)
whom he reasonably suspects of having committed an offence referred
to in Schedule 1, other than the offence of escaping
from lawful
custody.”
[24]
In
Duncan
v Minister of Safety Law Order
[1]
it was stated that the arrestor must prove the existence of four
jurisdictional factors as the following:
1.
the arrester must be a peace officer;
2.
he / she must entertain a suspicion;
3.
it must be a suspicion that the arrestee committed an offence
referred to in Schedule 1 to the
Act, and
4.
the suspicion must rest on reasonable grounds.
[25]
The plaintiff submitted in the heads of argument that when the
arresting officer went to the
scene of crime he had already made up
his mind to arrest and therefore did exercise his discretion
properly. He failed to
take into account Arnold’s
explanation that he did not possess the firearm on behalf of the
plaintiff and Gumede. The
officer further failed to appreciate
that joint possession of a firearm cannot be easily inferred.
[26]
In argument before court, Mr Matanda for the plaintiff argued that
the police officer should
have established that the legal
requirements for possession of a firearm were in existence before
effecting the arrest. In
support of his argument he relied on
the Constitutional Court judgment of
Makhubela v The State
;
Matjeka v The State
[2017] ZACC 36.
He also argued that
the detention of the plaintiff on 25 December 2015 for about three
(3) hours was not justified in light
of the firearm having been found
at the scene and there was no need therefore for further
investigations.
[27]
On the contrary, in the heads of argument the defendant submitted
that the jurisdictional factors
had been satisfied as required by
section 40(1)(b) of the Act. Ms Boya for the defendant further
argued that Sgt Ngongo who
effected the arrest conducted the
necessary investigations, assessed the quality of the information at
his disposal and verified
it before he entertained the suspicion.
He did so by confronting Arnold and Teddy if they knew about the
firearm. Under
those circumstances, so the argument went, Sgt
Ngongo acted reasonably.
[28]
Ms Boya further argued that whilst the arrest on 25 December 2015 is
admitted, both plaintiff
and Gumede were never detained in police
cells. This argument is advanced at the backdrop that the
defendant does not deny
that at the scene of crime the plaintiff and
Gumede were put in the back of a van and transported to the police
station.
Neither does the defendant disputes that the plaintiff
spent 2 hours in the custody of police before his release.
[29]
Ms Boya further argued that, whilst the defendant admits the
detention of plaintiff on 28 December
2015,
albeit
unlawful it
had not been pleaded. However, the alternative submission was
that of the court were to found in favour of the
plaintiff the court
should consider awarding costs on the magistrate’s court scale.
[30]
The law is trite that a police officer who purports to act in terms
of section 40(1)(b) should
investigate exculpating explanations
offered by a suspect before he can form a reasonable suspicion (See
Louw and Another v Minister of Safety and Security and Others
2006 (2) SACR 178
(T); See also
Siqubashe v Minister of Police and
Another
(527/2011 [2015] ZAECBHC 32 (22 September 2015).
[31]
When Sgt Ngongo arrived at the scene he met with the plaintiff and
Gumede from whom he enquired
about the firearm that was discovered
under the driver’s seat of the car in which they were the
occupants. I find it
necessary to revisit the answers proffered
to Sgt Ngongo, including the response of Arnold when he was
confronted about the firearm.
Plaintiff said he told the police
that he knew nothing about the firearm and he further told them about
the person who had been
seated on the driver’s seat.
Gumede on the other hand told the police that the firearm belonged to
Moerane (referring
to Arnold) who had gone to the toilet.
[32]
However, it is worth noting that both plaintiff and Gumede
corroborate each other that when Arnold
was confronted by the police
about the firearm, he distanced himself from it. According to
both of them they said Arnold
told the police that he knew nothing
about the firearm and that it belonged to Teddy.
[33]
It is apparent that at this stage the arresting officer was faced
with three suspects who neither
of them claimed ownership of the
firearm. It is only when they were at the police station that
Arnold is alleged to have
admitted that he at some point had used the
firearm to point at his friend. It must be borne in mind that
the alleged admission
by Arnold comes after the arrest. Even
then, Arnold did not claim ownership of the firearm, he only admitted
using the firearm
at some stage but placed it back under the car
seat.
[34]
The stark question that still remained unanswered was to whom the
firearm belonged. Undoubtedly,
this question in my view, could
only have been answered decisively through the conducting of further
investigations by the police
officer.
[35]
In
Mhlongo
v Minister of Safety and Security
[2]
it was held that the circumstances giving rise to the suspicion must
be such as would ordinarily move a reasonable man to form
the
suspicion that the arrestee had committed a first Schedule offence.
[36]
The law is trite that the belief or suspicion on which the peace
officer acts must be reasonable
and the test for such reasonableness
is an objective one (See
S
v Nel and Another
1980 (4) SA 28
(E) at 33H). The question is would a reasonable
man in the position of Sgt Ngongo and possessed of the same
information at
his disposal have considered that there were good and
sufficient grounds for suspecting that the plaintiff was guilty of
possession
of a firearm. In
Woji
v The Minister of Police
[3]
it was
said “suspicion in its ordinary meaning is a state of
conjecture or surmise where proof is lacking. Suspicion
arises
at the commencement of an investigation of which the obtaining of
prima
facie
proof is the conclusion.”
[37]
In
casu
I find that the arresting officer had objectively
assessed the information he was faced with at the time. He
therefore had
a reason to suspect that a crime had been committed by
either one of them or jointly. Accordingly, I find the arrest
of plaintiff
on 25 December 2015 and until his release from detention
lawful. However, this is not the end of the matter. On 28
December 2015 the plaintiff mysteriously ends up in police custody
and transported to court with a police van. When he appeared
in
court he was granted bail as if he was at all times pursuant his
arrest on 25 December 2015 in custody.
[38]
There is a dispute as to whether the plaintiff and Gumede were
fetched from their homes by Sgt
Ngongo on 28 December 2015 in order
for them to be re-incarcerated. Sgt Ngongo denies the
allegation by the plaintiff and
Gumede. He further stated that
he bears no knowledge of why the plaintiff was re-incarcerated and
granted bail in court.
The plaintiff and Gumede gave
conflicting versions on this aspect. It is the plaintiff’s
evidence that when he was
fetched by Sgt Ngongo he found Gumede in
the police van which took them to the police station. Whereas
Gumede said when he
was fetched from his home, he found the plaintiff
at the police station. This contradiction in the evidence of
the plaintiff’s
case received no plausible explanation.
Mr Matanda for the plaintiff sought to explain this contradiction by
suggesting that
the time lapse between the incident and trial of the
matter may be the cause and further argued that the contradiction was
not
material. I find no merit in this suggestion and it ought
to be jettisoned as it is not supported by any shred of evidence
that
Gumede had forgotten the events of the morning in question.
Instead Gumede was confident and resolute on what had happened
on the
morning of 28 December 2015.
[39]
I find the allegation of the plaintiff and Gumede that their release
on 25 December 2015 was
a secrete and that they were fetched by Sgt
Ngongo on 28 December 2015 improbable for the following reason.
According to
the plaintiff when they were incarcerated on 25 December
2015, two police officers took them out of the cell and advised them
to
collect their belongings from Sgt Ngongo. It is quite clear
that there were at least two other police who knew of their release.
It is also common knowledge that inmates in police custody are
visited periodically during their incarceration and such visitation
is recorded in the applicable register. It is obvious that in
their case such register would not indicate that they were
in custody
and / or paid any visitation for their entire duration of 25 to 28
December 2015. Something I find very improbable.
[40]
Further, on 28 December 2015, there is no suggestion that Sgt Ngongo
played any role in their
re-incarceration, as it would have been
expected of him, seeing that they must appear as having been in
custody for the entire
duration of their arrest. I cannot agree
with the submissions of the defendant that the probabilities favour
the plaintiff
on this aspect. The probabilities in my view, are
consistent with the version of Sgt Ngongo that upon release of the
plaintiff
and Gumede, he advised them to attend court on 28 December
2015. That he further advised them should they be in need of
transport
they should attend to the police station where they will
get assistance. I further find his explanation that the
plaintiff
and Gumede were recorded in the Body Receipt Register for
purposes of transporting them to court, as more probable.
[41]
Having regard to the principles and criteria set out in
Stellenbosch
Farmers’ Winery Group Ltd and Another v Martel ET CIE and
Others
[4]
and
National
Employers’ General Insurance v Jagens
I
am of the view that the probabilities favour the version of Sgt
Ngongo as being more plausible than it favours the plaintiff’s
version. Consequently, the plaintiff’s version that Sgt
Ngongo ordered them to return to the cells on Monday under
secrecy
has to be rejected as false.
[42]
I deem it necessary to deal with the aspect that was raised, that the
detention of plaintiff
on 28 December 2015 is not covered or alleged
in the particulars of claim. I must regrettably state that the
plaintiff’s
Particulars of Claim are not a model of clarity.
I shall therefore reproduce the relevant paragraphs as follows:
43.1
Paragraph 4 the Particulars of Claim reads:
“
On the 25
December 2015 and at Ngangelizwe, Ndudula Street Mthatha, the
plaintiff was wrongfully and unlawfully arrested without
a warrant by
an unknown members of the South African Police Services.”
43.2
Para 5 reads:
“
Thereafter, the
plaintiff was detained at Ngangelizwe Police Station from 25 December
2015 until 28 December 2015 at the instance
of the aforesaid
policemen and various other policemen whose names and ranks are to
the plaintiff unknown.”
[43]
When it became apparent that the allegations in paragraph 5 were not
supported by the plaintiff’s
evidence since he was never
detained for the entire duration from 25 to 28 December 2015 as
alleged, Mr Matanda attributed this
defect to a misunderstanding that
has since been cured by evidence. It shall be noted that not
only are the Particulars of
Claim misleading on the duration of
incarceration of the plaintiff, neither do they allege the events
leading to the detention
of 28 December 2015 which is a separate and
distinct incident which required to have been specifically pleaded as
such.
[44]
It is trite that the purpose of pleadings is to define the issues for
the other party and the
court. A party has a duty to allege in
the pleadings the material facts upon which it relies. It is in
impermissible
for a plaintiff to plead a particular case and seek to
establish a different case (See
Moaki v Reckitt
and
Colman
v Africa Ltd and Another
1968 (3) SA 98
(A) at 122 A;
Imprefed
(Pty) Ltd v National Transport Commission
1993 (3) SA 94
(A) at
107).
[45]
Notwithstanding the principle of law alluded to in the preceding
paragraph 1, in
Minister
of Safety and Security v Slabbert
[5]
the
court stated that there are however, circumstances in which a party
may be allowed to rely on an issue which was not covered
by the
pleadings. This occurs where the issue or question has been
canvassed fully by both sides at the trial.
[46]
In this matter the incarceration of plaintiff on 28 Decembe 2015 was
fully canvassed and ventilated
by both sides. Consequently, the
absence of the averment in the Particulars of Claim in the manner the
detention of 28 December
2015 occurred is in my view not fatal to the
plaintiff’s case. I therefore find that the court was
fully entitled to
pronounce on the issue of the detention of
plaintiff on the 28 December 2015. Accordingly the court finds
that there was
no justification to have the plaintiff incarcerated on
the said date and as a result his detention was unlawful.
[47]
I now turn to deal with the question of quantum. Section
12(1)(a) of the Constitution
[6]
guarantees everyone the right to freedom and security of his or her
person, including the right not to be deprived of his or her
freedom
without just cause. Counsel for both parties were
ad
item
that the detention of plaintiff on 28 December 2015 was not justified
and was therefore unlawful. For this, the plaintiff
is entitled
to damages. Mr Matanda invited the court to take into account
that the arrest on the plaintiff had led to the
souring of relations
between himself and his mother. Ms Boya submitted that costs
should be awarded on the magistrates’
court scale. Mr Matanda
further argued that at the time of the drafting of the particulars of
claim they anticipated the quantum
to be within the jurisdiction of
this court and therefore it will be unfair to the plaintiff if costs
were awarded on the magistrates’
court scale.
[48]
According to the objective evidence it can be reasonably accepted as
was contended by the defendant
that the plaintiff was detained on 28
December 2015 for approximately six (6) hours until his release from
court pursuant the payment
of bail.
[49]
The approach of a court in the assessment of general damages is
summarised aptly by Nugent JA
in
Minister
of Safety and Security v Seymour
[7]
where
the learned Judge stated:
“
The assessment of
awards made in previous cases is fraught with difficulty. The
facts of a particular case need to be looked
at as a whole and few
cases are directly comparable. They are a useful guide to what
other courts have considered to be appropriate,
but they have no high
value than that.”
[50]
Having regard to the circumstances under which the plaintiff was
detained as well as the period
he spent in custody, it is my view
that an appropriate award of damages would be one of R20 000,00.
[52]
In the result the following order will issue.
1. The
defendant is ordered to pay the plaintiff the amount of R20 000,00
for damages.
2.
Interest on the said amount at the legal rate from date of judgment
to date of payment.
3.
costs of suit.
_________________
V
NQUMSE
ACTING
JUDGE OF THE HIGH COURT
Counsel
for the Plaintiff:
Adv.
E M Matanda
Instructed
by: Keto
Mathanda Inc. Attorneys
66
Stanford Terrace Street
MTHATHA
Ref:
FMK/Im/M.2
For
the Defendant:
Adv. L Mncotsho-Boya
Instructed
by: State
Attorneys
Broadcast
House
Sissions
Street Fortgale
MTHATHA
Ref:
(1552/17 – A16G Govender)
Dates
Heard:
22,
23, 24 May 2019; 21 June 2019 and
03
July 2019
Judgment
Delivered:
25
September 2019
[1]
1985 (2) SA 805
(A) at 818G – H.
[2]
[2001] 2 ALL SA 534 (Tk).
[3]
Woji
v The Minister of Police
(92/2012)
[2014] ZASCA 108
paras 17 and 18.
[4]
2003 (1) SA 11
(SCA) at para [5].
[5]
Minister
of Safety and Security v Slabbert
[2010] 2 ALL SA 474
para 12.
[6]
Constitution of the Republic of South Africa, Act 108
of 1996.
[7]
2006 (6) SA 320
(SCA) at 325B.