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[2018] ZAGPPHC 289
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Mohammed v Minister of Police (3920/2014) [2018] ZAGPPHC 289 (10 January 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 3920/2018
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
In
the matter between:
AYUB
MOHAMMED
PLAINTIFF
and
THE
MINISTER OF
POLICE
DEFENDANT
JUDGMENT
INTRODUCTION
[1]
Mr Ayub Mohammed (“plaintiff”), an,
Immigrant from Somalia, was arrested on the 16
th
Aprll 2012 by members of the South African Police
Services. He was later taken into custody and detained for
approximately 5 (five)
hours In Police cells at Albertinia Police
Station In the Western cape.
[2]
As a result of the arrest, plaintiff Instituted legal
proceedings against the Minister of Police. In the particulars of
claim, he
alleges that Officer CJ Van der Bergh, with member number:
04495373, a member of the South African Police services and Stationed
at Albertinia, unlawfully entered and searched his property without
any authorisation, verbally assaulted him whilst performing
an
arrest, illegally arrested him and illegally took him into custody.
[3]
The Minister of Police (defendant) defended the action
and filed a plea. In the plea, the defendant admitted that the
plaintiff
was arrested by members of the South African Police
Services stationed at Albertinia. He (the defendant) however denied
that the
plaintiff was arrested by CJ Van der Bergh and specifically
pleaded that the arrest was effected by Constable R.D. Jansen. The
defendant further denied that the arrest was unlawful and averred
that It was executed by a peace officer In terms of
Section 40(1)(a)
of the
Criminal Procedure Act 51 of 1977
, as the plaintiff committed
an offence In the presence of the arresting peace officer. The
defendant further contended in the plea
that the subsequent detention
of the plaintiff was not unlawful as it followed upon a lawful arrest
and complied with the requirements
of
Section 50
of the
Criminal
Procedure Act 51 of 1977
.
[4]
Counsel advised me at the commencement of the trial that
a pre-trial conference was held and the minutes will be made
available
to me later in the day. Same was never given. At the end of
the plaintiff's case, Advocate W. Dreyer Indicated that the parties
had agreed that the matter would proceed on merits only and
accordingly did not find it necessary to lead evidence on quantum.
Advocate Botma for the defendant was not impressed with the turn of
events as according to her, there was no reason for the Issues
to be
separated. Owing to the lateness of the hour and the unavailability
of witnesses, I gave a ruling that I will consider the
evidence on
merits and depending on the outcome, quantum evidence will be
presented later.
[5]
In view of the fact that the defendant had admitted the
arrest, the onus was on him to prove the lawfulness thereof.
Accordingly
he also had the duty to begin. He called two witness,
namely constable Rolando David (Jansen) and constable Jacob
(Matlolane).
[6]
Jansen testified
that he is an officer in the SAPS and has been a constable for 11
years. On the 16
th
April 2012 he was
on duty with Matlolana, carrying on their duties around Albertinia
where they were inspecting the permits of the
immigrants. In the
course of performance of their duties, they approached a shop .in
Albertinia, apparently owned by the plaintiff.
They got into the shop
and found another person whom they said was a brother to the
plaintiff. They asked to see his permit. They
saw the documents and
found everything to be in order. They then left: the shop.
As
they were approaching their vehicle, the plaintiff who was on the
street yelled at them for no reason and was very aggressive.
He asked
for his papers and insisted that they be shown him.
[7]
The plaintiff was un-co-operative and he told him that
he is a police officer and if he asks for papers, he should show them
to
him. He told him that If he falls to show him the papers, he will
arrest him. At that stage the plaintiff was fighting and he told
him
that he is under arrest and read him his rights.
[8]
The plaintiff resisted arrest end he asked constable
Matlolane to assist him to get the plaintiff into the back of the
van. After
his arrest, plaintiff's brother who was in the shop came
running and showed him plaintiff's papers, he found them to be in
order.
He then continued with the arrest and proceeded to the Police
Station where he put him into the cells. When asked for what offence
did he arrest him, he testified that, It was for a riotous behavior.
[9]
Under cross-examination, it was put to him that the
plaintiff never resisted the arrest and was in fact never on the
street. It
was further put to him that it was improbable that the
plaintiff would resist arrest In the manner described by him and not
sustain
injuries. He was further asked to comment on why It took them
about 2 hours to travel a 3-4 kilometers to the Police Station after
arrest. The answers he gave were incomprehensible and at times did
not even make·sense. I cannot understand what was the
reason
was for effecting an arrest on a person only to have him released at
01h00 a.m and not even offer transport to take him
home. The witness
was evasive and tended to shift the blame on other officers at the
Police Station regarding what happened to
the plaintiff after arrest.
[10]
The second witness to testify for the defendant was
constable Matlolane.He corroborated the evidence of constable Jansen
to a greater
extent. He testified that the plaintiff was arrested for
swearing at them and not the contravention of the bye-law as
explained
by constable Jansen. He further testified that the
plaintiff was talking to him and not constable Jansen.
[11]
The plaintiff testified that he is from Somalia and is
in South Africa legally. He is in possession of refugee permit. In
2012 he
was operating a shop In Albertinia and is currently studying
at Nelson Mandela University where he is a student in nature
conservation.
[12]
On the
16
th
Apri
l 2012 he
was
i
n his shop with his employee when two police
officers came
in
around 19h00 - 20h00. He
identified them as police officers because they were
i
n
police marked vehicle. Upon their arrival
i
n the
shop, they asked about the permit, he produced it and they found it
to be ok after checking
i
t. They then asked
i
f
he
i
s
selli
ng drugs
or
i
llegal stuff. He answered no and allowed them to search
around. After searching, they found nothing. The conversation then
moved
towards the
profitabili
ty of the business
and how come he came to own a shop or run a
business
at the age of 20 year. He did not answer the
questi
ons
regarding the profit
as
he was
fearful
th
at the questions may lead
t
o
his
attack. He was also
unco
mfortable
with the
q
uestions as they had nothing to do with
his permit. The two police officers became agitated and told him that
they are police officers
and whenever they ask questions, he should
answer. They further told him that he
i
s an
immigrant and threatened to
arrest him. They then
started to pull him out and ultimately
p
ut him
into the van. He was never told why he was being arrested and after
his arrest, the police officers drove around with him
and at some
stage, he did not even know where he was. He was later taken to the
police station, locked into the cells and was released
after 01h00
a.m. The person who released him told him to report at Court the
following day. He did not pay bail or anything.
[13]
Under cross-examination, he maintained his version that
he was
i
n the shop and never on the street as
averred by the police officers. He further
denied that he
i
nsulted or fought with the
poli
ce
officers or used any abusive language towards them. He said being an
i
mmigrant, he needed
police
protection and understood that he should obey the laws of the
country. He had no reason to create a problem for himself.
He further
testified that he
i
s not that
well-c
onversant
with Afrikaans language except
for the purpose of
communicating with the customers.
[14]
Under cross-examination he maintained that he was
i
n
the shop and not on the street when the police officers came. He had
no business quarrelling with the police as he understood
that they
were doing their job. It was not for the first time that police
visited his shop and he always approached them with calmness.
He did
not sustain any Injuries. He
denied that he
resisted the arrest nor did he at any stage demonstrate any riotous
behavior towards the police. As far as he is
aware, he was arrested
for refusing to disclose his personal finances.
[15]
Mr Kilass gave evidence in support of the version by the
plaintiff and stated that he is not related to the plaintiff in any
way
other than as an employee. He maintained that the police found
him and the plaintiff in the shop and he saw everything and heard
the
whole conversation between plaintiff and the police officers. He did
not see any riotous behavior nor did he see plaintiff
fight with the
police,
[16]
lt is common cause that generally police officers have
the power to effect an arrest with or without warrant subject to
compliance
with certain requirements. One of the requirements
relevant for this case Is that an arrested person must be informed of
the reason
for his or her arrest.
Section 40(1)(a)
of the
Criminal
Procedure Act provides
that :-
"Every Peace Officer
may, without warrant arrest any person,,
(a)
Who commits or
attempts to commit an offence in his presence.
[17]
In order to uphold the defendant's reliance on
Section 40(1)(a)
of
the
Criminal Procedure Act, I
am ineluctably required to make a
determination whether the plaintiff was on the street at the time of
the arrest as the defendant
alleges. If I arrive at a decision that
he was on the street, I will further need to make a determination
whether the arresting
officers were justified In effecting an arrest
for what they regarded as a riotous behavior.
[18]
The crisp issue for determination is therefore whether the arrest was
unlawful given the circumstances under which it was effected.
The
parties have presented conflicting versions which I find to be
mutually destructive. I should therefore remind myself that
when
evaluating evidence, this must be done in such a way as to guard
against a peace-meal evaluation. Evidence must be considered
In its
totality.
[19]
The determination of the issue is largely factual and is dependent
upon what actually happened. The credibility of the witnesses
is
going to play a pivotal and decisive role in the adjudication of the
dispute. In such circumstances the proper approach is to
weigh up and
test the allegations against the general probabilities. In National
Employers General Insurance Co Ltd v Jagers, 1984
(4) of 437, Eskeen
AJP (as he then was) expressed the Court's approach where is faced
with mutually destructive version as follows:,
“
It seems to
me, with respect, that in any civil case.-,as in any criminal case,
the onus can ordinarily only be discharged by adducing
credible
evidence to support .the case of the party on whom the onus rests. In
a civil case, the onus is obviously not as heavy
as it is in a
criminal case but nevertheless where the onus rests on the Plaintiff
as in the present case, and where there are
two mutually destructive
stories he can only succeed if he satisfies the court on a balance of
probabilities that his version is
true and accurate and therefore
acceptable
and the other version advanced by the Defendant is therefore false or
mistaken and falls to be rejected. In deciding whether that
evidence
is true or not the court will weigh up an test the plaintiff’s
allegations against the general probabilities. The
estimate of the
credibility of a witness will therefore be inextricably bound up with
a consideration of the probabilities of the
case and, if the balance
of probabilities favours the plaintiff, then the court will accept
his version as being probably true.
If however the probabilities are
evenly balanced in the sense that they do not favour the plaintiff’s
case anymore than they
do he Defendant, the Plaintiff can only
succeed if the court nevertheless believes him and is satisfied that
his evidence is true
and that the Defendant’s version is
false”.
[20]
The defendant bears the onus to prove that the plaintiff committed an
offence in the presence of the peace officer and therefore
that the
arrest was lawful. The court
put
the position as follows in the case of Minister of Law and Order and
another vs Dempley
1988 (3) SA 19(A)
"I accept of course that
the onus to justify an arrests on the party who alleges that it was
lawfully made and since an arrest
can only be justified on the basis
of statutory authority, that the onus can only be discharged by
showing that it was made within
the ambit of the relevant statute".
The constitutional court confirmed the correctness of the position In
Zealand v Minister
of Justice and Constitutional Development,
[2008] ZACC 3
;
2008
(4) SA 458
when if said.
[21]
The version presented by the defendant that the plaintiff was riotous
and contravened the municipal by-law Is farfetched and
an after
·thought by the defendant who sought to avoid liability for
what I regard as an unnecessary demonstration of Power.
For the
record, I do not accept that the plaintiff was on the street as at
the time that he was required to produce his papers.
I also find it
highly improbable that plaintiff will without provocation hurl
insults on the police whom he had acknowledged that
they perform
random searches for permits In order to protect them and their
property.
[22]
Considering the evidence in its totality, there is no doubt In my
mind that the defendant's evidence was tailored to fit Into
Section
40(1) (a). It lacked coherence and was contradictory on the material
aspect relating to the arrest. Constable Jansen gave
an impression to
the Court that the plaintiff was violent and aggressive towards them
and was fighting and resisting arrest such
that it required him to be
assisted by Constable Matlolane. His words were that "He was
fighting us", it was not a walk
in park. It was quite a
scuffle". On the other hand, Constable Matlolane testified that
he is the one who was talking to the
Plaintiff when the Plaintiff
said “you fucking police always looking for papers. Constable
Jansen said to him that he should
not talk to him like that because
he might arrest him. Under cross-examination he (Matlolane) crucially
said that plaintiff was
arrested for swearing at the police. This is
important in that swearing at police officers is a different offence
from fighting
or acting in a riotous manner. I am consequently unable
to find that the plaintiff had indeed committed an offence In the
presence
of the police as alleged by the defendant. The defendant has
therefore failed to discharge his onus on this aspect and the arrest
is unjustifiable and consequently unlawful.
[23]
The plaintiff was in my view a candied and honest witness. He
answered questions with ease, without hesitation and in a convincing
manner. This was despite the fact that English was a second language
to him. Plaintiff's witness, Mr Kilass also came out as an
impressive
witness. He had no reason to Iie nor was there any proposition put to
him why he would choose to favour the plaintiff
against the
defendant. I consequently cannot find any fault with his evidence.
The fact that he was an employee for the plaintiff
can hardly be a
reason for the court to view his evidence with suspicion. I therefore
accept his evidence as being correct and
truthful.
[24]
The constitution enshrines the right to freedom and security of a
person, including the right not to be deprived of freedom
arbitrarily
or without just cause as well as the founding value of freedom.
Accordingly, it was sufficient for the applicant simply
to plead that
he was unlawfully detained. This he did. The respondents then bore
the burden to justify the deprivation of liberty;
whatever form It
may have taken.
[25]
This is not something new in our law. It has long been firmly
established in our common law that every interference with physical
liberty is prima facie unlawful. Thus once the claimant establishes
that an interference has occurred the burden falls upon the
person
causing that interference to establish a ground of justification.
[26]
In the premise, I find that the defendant has failed to discharge his
onus to prove the lawfulness of the arrest and therefore
the arrest
of the plaintiff and the subsequent detention were unlawful.
[27]
The defendant is liable for plaintiffs proven damages arising out of
the arrest and detention.
______________________
MABOKU
ISAAC MANGENA
ACTING
JUDGE OF THE
HIGH
COURT, PRETORIA