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[2019] ZAECMHC 61
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Stuurman and Others v Minister of Police (2375/2013; 2623/2013; 2624/2013) [2019] ZAECMHC 61 (23 October 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, MTHATHA)
Case NO’s:
2375/2013; 2623/2013 & 2624/2013
NOKWANDA
STUURMAN 1
st
PLAINTIFF
MNCEDISI
DAMBA 2
ND
PLAINTIFF
NOMAKHAYA
HOHO
3
RD
PLAINTIFF
And
MINISTER
OF
POLICE DEFENDANT
Neutral citation
:
Coram
:
Dawood J
Heard
:
31 JULY 2019
Delivered:
23 OCTOBER 2019
JUDGMENT
DAWOOD
J:
1.
This is a consolidated action in respect of three plaintiffs.
2.
The plaintiffs were arrested and detained at the Idutywa Police
Station for a period of 2 days.
3.
The plaintiffs alleged that the arrest and detention were unlawful,
not sanctioned by law and the officers
did not have a warrant of
arrest authorising the same.
4.
The plaintiffs further alleged that they were subjected to
humiliation and their dignity was impaired to a
large extent for
being called a thief in the presence of the public.
5.
The plaintiffs each claimed the sum of R450 000-00 in respect of
various heads of damages.
6.
The defendant’s plea in the Stuurman case was a bare denial
however in the other matters the defendant
relied upon the provisions
of section 40 (1) (
e
) of the
Criminal Procedure Act 51 of 1977
to justify the arrest and detention.
7.
The defendant further avers that the plaintiffs were interviewed
inside their vehicle.
8.
It was also pleaded that they were caught shoplifting at Jet Stores
by a security guard.
9.
In this matter reliance was placed on
section 40
(1) (
e
) of
the
Criminal Procedure Act which
reads as follows:
“
(1) A peace
officer may without warrant arrest any person-
…
(
e
) who is
found in possession of anything which the peace officer reasonably
suspects to be stolen property or property dishonestly
obtained, and
whom the peace officer reasonably suspects of having committed an
offence with respect to such thing;
…”
10.
It is trite that the
onus
to justify an arrest without a
warrant is on the defendant, which means that the defendant must
convince the court on a balance
of probabilities that all the
jurisdictional facts existed for a lawful arrest.
11.
The jurisdictional facts for an arrest in terms of
section 40
(1) (
e
) are the following:
a)
The
arrestor must be a peace officer;
b)
The suspect must be found in possession of the
property;
c)
The arrestor must entertain a susicion that the
property has been stolen or illegally obtained; and
d)
That
the person in possession of the property has committed an offence in
respect of the property and the arrestor’s suspicion
must rest
on reasonable grounds.
[1]
12.
The conduct of the arresting officer accordingly has to be
viewed in relation to these factors to determine whether or
not it
meets the jurisdictional requirements and is lawful and justified.
13.
Very briefly with regard to the present plaintiffs before court
the arresting officer states that he had just arrested
an occupant
from that vehicle, in Jet Stores, who was together with the driver,
and had gone to the vehicle initially to ensure
that it was not left
unattended, not that he entertained any suspicion at that stage.
14.
He was surprised to see that there were other occupants in the
vehicle and upon his arrival there he noticed a number
of items lying
on the floor of the back seat of the vehicle and this caused him to
become suspicious.
15.
When he questioned the occupants regarding the items he was
told that it was purchased from Spar but none of the occupants
produced any receipts, as proof thereof.
16.
He then caused the driver of that vehicle to drive the vehicle
to the police station and requested each of the occupants
to stand
next to their items and he again asked for the receipts and none were
produced and in fact according to him they all admitted
stealing the
goods.
17.
He clearly gave contradictory evidence regarding whether or not
he had arrested the driver of the vehicle initially emphatically
denying the same stating that he had insufficient evidence to justify
arresting him and only when he was shown documentation did
he concede
that he had forgotten due to the lapse of time whereas initially he
even went so far as to say that the investigating
officer may have
arrested the driver and not him as he had formed the opinion that
there was insufficient evidence to detain the
driver.
18.
There admittedly was a lapse of 6 years since the event but
that does not explain why he would be so emphatic about his
recollection initially and even give an explanation regarding why he
had not arrested the driver and only when he was confronted
with
documentary evidence proving that he was reflected as the arresting
officer did he suddenly rely on lapse of time and memory
resulting in
an error. If he had initially said that he could not recall but
believed that he had not arrested the driver that
would have been
understandable.
19.
The question however is whether this contradiction means that
his evidence pertaining to his recollection regarding the
arrest and
detention of the plaintiffs also falls under a cloud of doubt and
ought to be rejected because of the established misinformation
demonstrated regarding the driver. He appeared to genuinely believe
that he had not arrested the driver and did not appear to be
attempting to mislead the court in this regard.
20.
In considering this aspect regard was had to the concession by
the plaintiff who testified, who stated that she did not
provide a
receipt in respect of the goods but merely stated that she bought it.
21.
This accordingly supported his version that no receipt was produced,
irrespective of whether one accepts her version that none
was asked
for or his that they failed to produce it when asked.
22.
She however stated that she was not asked about the receipt and
that the goods were in the boot of the car not the backseat
and
further that the goods were not lying loose but were in a bag which
was not put to him when he was questioned.
23.
She has had previous brushes with the law on charges of theft
and even if one were to accept her version that she was
not asked,
she would know that producing a receipt for the goods would make it
clear that she had not stolen the goods. Even when
making her warning
statement she failed to produce the receipt that she alleged she had
in her possession nor did she give it to
her attorney when she
consulted with him shortly after her release.
24.
The arresting officer may not have been the best of witnesses
but he did not appear to be lying to the court. His version
is far
more probable with regard to questioning the plaintiffs about the
goods and asking for the production of the receipts, which
on the
testimony of the plaintiff that testified, she failed to produce.
25.
The arresting officer:
a) Was
a peace officer;
b) The
plaintiffs were found in possession of the property;
c) He
did entertain a suspicion that the property was stolen when he saw
the quantity of the individual items;
d) The
occupants failed to produce receipts for the items causing him to
entertain a suspicion that they had each
committed an offence in
respect of the property;
e) The
fact that they said they had purchased the goods from Spar but failed
to produce receipts for the same
nor were any of the items in a Spar
packet, objectively viewed justified his suspicion that the property
had been stolen and that
the plaintiffs had committed an offence with
regard thereto and in this case further according to him they in fact
admitted stealing
the items when he questioned them; and
f)
A reasonable officer acting in the arresting officer’s position
would accordingly have been satisfied
that an offence had been
committed that warranted the arrest of the plaintiffs.
26.
The defendant has accordingly established all the
jurisdictional facts for a lawful arrest.
27.
The plaintiff argued further:
a) that
the arrester’s discretion to arrest was improperly exercised;
b) that
the plaintiffs should not have been detained;
c)
further that they ought to have been released prior to the expiration
of the 48 hours;
d)
accordingly their detention even if initially lawful was subsequently
unlawful because they were not released
as soon as reasonably
practicable;
e) that
the plaintiffs did not appear in court so a purpose of arrest was not
fulfilled and accordingly their
arrest was not for the purposes of
appearing in court.
28.
None of this was specifically pleaded in the plaintiffs’
particulars of claim.
29.
It is evident that the prosecutor did not enrol the matter because he
wanted further information. The arresting officer’s
intention
however is what is in issue and he clearly intended having the
plaintiffs brought to court and that was why he had arrested
and
detained them. The investigating officer also intended to have them
brought before court.
30.
They were in fact taken to court but were not caused to appear
before a magistrate in light of the prosecutor’s
views and they
were accordingly released from custody at that stage.
31.
The fact that the prosecutor did not cause them to appear
because he was not satisfied does not detract from the fact
that the
police fulfilled the purpose of arresting the plaintiffs to bring
them to court.
32.
Their appearance there was to be at the instance of another role
player exercising his discretion as to whether or not there
was at
that stage sufficient evidence available to prosecute.
33.
This did not detract from whether or not the jurisdictional facts
were present warranting an arrest for the purposes of bringing
the
accused/plaintiffs before court.
34.
It was not disputed that they were conveyed to the court from the
police station. They were accordingly taken to court.
35.
The officers were further not questioned regarding what the
procedure was for an investigator to be appointed and why
that could
not be done immediately upon the arrest of the plaintiffs to ensure
that their warning statements were taken on that
evening to enable
them to be taken to court the following morning as opposed to having
to wait for the expiration of the 48 hours.
36.
The response of the investigating officer that he had other
matters to attend to and had 48 hours and did not consider
this
matter as urgent is somewhat disconcerting since the right to liberty
is paramount and every detainee’s matters should
be dealt with
as expeditiously as possible and regarded as urgent. His further
explanation however was that it was already too
late on that day for
him to take the plaintiffs to court for a first appearance due to the
practice of the court regarding the
time such first appearances were
dealt with is a legitimate explanation for not taking them to court
later on the day that he was
appointed as the investigating officer
because it was already late in the day and first appearances were not
dealt with at that
hour.
37.
Accordingly the plaintiffs’ argument unfortunately is
without merit.
38.
Additionally that contention ought to have been pleaded
specifically where all the jurisdictional facts are present.
39.
The party who attacks the reasonableness of the exercise of
discretion bears the
onus
of proof and has to specifically
raise it in the particulars of claim.
40.
In
Minister
of Safety and Security v Sekhoto and Another
[2]
it was
inter
alia
held that:
“
...
A party who alleges that
a constitutional right has been infringed bears the onus. The general
rule is also that a party who attacks
the exercise of discretion,
where the jurisdictional facts are present, bears the onus of proof.
This is the position whether or
not the right to freedom is
compromised.
...
The
case can be disposed of on a simple basis, namely, that the proper
exercise of Van der Watt’s discretion was never an
issue
between the parties. The plaintiffs, who had to raise it either in
their summons or in a replication, failed to do so. The
issue was
also not ventilated during the hearing. This means that, since the
magistrate had found that the four jurisdictional
facts required for
a defence under
s 40(1)(
b
)
were established by the appellant ― a finding upheld by the
court below ― their claims had to be dismissed”.
41.
As already indicated the plaintiffs failed to plead that even
if the court found that the jurisdictional facts justifying
arrest
were present, that the arresting officer exercised his discretion to
arrest in an improper or unlawful manner or for an
improper purpose
and accordingly this is not an issue that can be adjudicated upon.
42.
The defendant has discharged the
onus
resting upon it to
justify the arrest and detention of the plaintiffs in terms of
section 40
(1) (
e
) and accordingly the arrest and detention is
found to be lawful and justified.
43.
The plaintiffs were pursuing a constitutional right to liberty and
did not appear to be doing so maliciously.
44.
There will accordingly be no cost order made against the plaintiffs
despite my dismissing their claims.
45.
In the result I make the following order:
1. The
plaintiffs’ claims are dismissed
2. Each
party to pay their own costs.
____________
DAWOOD
J
JUDGE
OF THE HIGH COURT
DATE
HEARD:
31 JULY 2019
DATE
JUDGMENT DELIVERED:
23 OCTOBER 2019
Appearances
Counsel
for the Plaintiffs: Mr
Badli
Instructed
by: OR
NDAMASE & ASSC.
17 OWEN STREET
MTHATHA
5099
Counsel
for the Respondent: Ms
Ncalo
Instructed
by: STATE
ATTORNEY
E.B
SONQWELO ATT.
137
YORK RD
LEGALWISE
MTHATHA
5099
[1]
See
Setlhapela
v
Minister
of Police and Another
(GP) unreported case no: 45031/2012 of 20 May 2015 at para 21;
Swalivha
v Minister of Safety and Security
[2016] JOL 35056
(GNP) at para 111 and
Mdlalose
and Another
v
Minister of Police and Another
[2016] 4 All SA (WCC) at para 72.
[2]
2011 (5) SA 367
(SCA) at paras 49 and 57.