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South Africa: North Gauteng High Court, Pretoria
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[2018] ZAGPPHC 292
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Adeoye v Minister of Police (55716/15) [2018] ZAGPPHC 292 (26 January 2018)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 55716/15
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
In
the matter between:
SUNDAY
VICTOR
ADEOYE
Plaintiff
Versus
MINISTER
OF
POLICE
Defendant
JUDGMENT
MPHAHLELE
J
[1]
The plaintiff claims damages from the defendant arising out of his
arrest and detention by the members of the South African
Police
Service.
[2]
The defendant admitted the arrest and the subsequent detention of the
plaintiff. The defendant pleaded, however, that
the arrest and
subsequent detention of the plaintiff was lawful in that the
arresting officers were authorised in terms of section
40(1)(b) of
the Criminal Procedure Act 51 of 1977 (the Act) to do so because they
reasonably suspected the plaintiff of having
committed the offence of
fraud.
[3]
The issue in dispute is whether the members of the South African
Police Service had reasonable grounds for arresting
the plaintiff or
not. It is trite that the onus is on the defendant to justify the
arrest.
[4]
The defendant called 2 witnesses, namely Sibongile Mosheshoe and
Constable Mampuru Johannes Lekgothoane.
[5]
Ms Sibongile Moshoeshoe confirmed that she knew the plaintiff. She
testified that in or around September 2014, she
searched for agencies
who could lease out a restaurant. In the process, she came across the
name of one Chris, who happened to
be a friend of the plaintiff. She
then met with Chris who showed her some premise .They agreed on the
premises situate next to
a Church. She then paid a deposit of R18
000-00 towards the leasing of those premises.
[6] Chris
informed her that he would inform her as soon as the premises were
ready for occupation. She later received keys
to the premises
although there were outstanding renovations to be completed. She made
another payment of R16 000-00 towards the
rental. On moving into the
property, she made a further payment of R16 000-00 to Chris for the
rental. Chris introduced her to
the plaintiff who as also running the
church from the same premises. The plaintiff was happy to meet her.
[7]
Ms Moshoeshoe testified that the gentleman attending to the
renovations on the premises advised her not to
pay the rental to
Chris as Chris was not authorised to receive it. He also informed her
that Chris and the plaintiff were working
together, and FPT lease out
the premises and the plaintiff was a tenant of FPT.
[8]
Ms Moshoeshoe subsequently attended at the offices of FPT. At FPT she
was informed that the plaintiff rented
the premises and used them as
a church. FPT was not aware that there was a restaurant operating on
the premises. They promised
to contact the plaintiff regarding the
restaurant as they never authorised any business to be operated on
the premises. They also
informed her that the did not know of any
Chris being an agent collecting rental on their behalf. Upon further
enquiry.FPT informed
her that the plaintiff denied that there is a
restaurant on the premises but alleged that his wife was th one
cooking for churchgoers.
FPT informed her that they would no lay a
charge against plaintiff, but would resolve the matter their own way.
[9]
FPT advised her not to pay any rental to the plaintiff and Chris.
Later another man also named Chris attended
at the premises and
enquired why they were not paying rental. He then promised to a range
a meeting between the first Chris and
her (Ms Moshoeshoe). Before the
meeting could take place, she laid a charge against both the
plaintiff and Chris at the police
station, which led to their arrest.
[10]
Upon the plaintiff's request, she went to see the plaintiff at the
police cells. The plaintiff asked her to drop
the charges. He
undertook to repay the money paid as rental. He even offered her his
car, n offer she turned down. In total she
paid a sum of R50 000-00
towards the lease of the premises. She never received a refund of
this amount.
[11]
Constable Mampuru Johannes Lekgothoane was the investigating officer
in this matter. He managed to arrest Chris
in Bleed Street, Pretoria.
During the interview at the police station, Chris indicated that he
was working with the plaintiff and
that he shared the money he
received for rental with the plaintiff.
[12]
Constable Mampuru testified that he and warrant officer Tlhotse then
approached FPT for further investigation about the
ownership of the
property. At the FPT offices Charmaine informed them that the
plaintiff was renting the premises from FPT and
he was not allowed to
sublet. They then requested Charmaine to summon the plaintiff to
their office to enable them to arrest him.
The following day, on 19
December 2014 they received a call from Charmaine advising them hat
the plaintiff was at their offices.
Upon arrival at FPT offices, they
introduced themselves to the plaintiff as police officers, and then
arrested him. He threw tantrums
and they had to drag him from the
office to the lift. Whilst walking in the street towards the police
station, they. held him by
his belt.
[13]
The first plaintiff, Sunday Victor Adeoye, testified that he is a
Pastor at the Mercy Place International. He is
renting the premises
from FPT in his personal capacity for the church. He agreed with FP
that he could subdivide the premises and
sublet. With the permission
of FPT, he rented the shop to Chris. Chris then rented the shop to on
lady to operate a canteen. Chris
pays him rental of R9 000-00 per
month. He only met the complainant after his arrest. Whilst at the
FPT offices, he was confronted
by two police officers who then
arrested him. They both grabbed him by his trouser and dragged him
out of Charmain 's office. They
proceeded to drag him in Esselen
Street on their way to the police station. The complainant came to
the police station at his request
, and that is the only time he ever
had a conversation with her. He requested her to tell the police
about the person she was dealing
with.
[14] The
plaintiff contended that the arresting police officers knew of the
premises allegedly rented out to Ms Moshoeshoe,
and ought t have
visited the premises as part of their investigation. He submitted
that the police officers ought to have considered
other forms of
procuring his attendance for purposes of the investigation other than
through his arrest.
[15]
In his evidence, the plaintiff raised new issues, which he never put
to the defendant's witnesses. He was very
evasive during his
testimony. The plaintiff only mentioned for the first time under
crossexamination that there are 2 people
named Charmaine at FPT
offices and the complainant might have spoken to a wrong person. The
plaintiff never disputed that he offered
to compensate the
complainant. The probabilities are that he would not have offer
refund the plaintiff he believed the rental of
the premises to Ms
Moshoeshoe to be genuine.
[16]
The two witnesses for the defence were candid and answered questions
satisfactorily. The accepted evidence before
this court is that Chris
did introduce the complainant to the plaintiff. Chris informed the
police that he was working together
with the plaintiff in soliciting
funds they were not authorised to receive.
[17]
The defendant contended that, under the circumstances, the police
officers concerned had reasonable grounds to
believe that the
plaintiff committed an offence of fraud. The definition of fraud is
'the unlawful and intentional making of a
misrepresentation which
causes actual or potential prejudice'.
[18] The
undisputed evidence in this matter is that FPT informed the
complainant that Chris had no authority to receive
rental for the
leased·premises. Upon his arrest, Chris informed the police
that he and the plaintiff worked in cahoot’s
and shared the
money received from the complainant. FPT informed the police that it
had not given permission to the plaintiff to
sublet the leased
premises.
[19]
Section 40(1)(b)
of the
Criminal Procedure Act 51 of 1977
provides
that A peace officer may without warrant arrest any person whom he
reasonably suspects of having committed an offence
referred to in
Schedule 1 to the Act, other than the offence of escaping from lawful
custody.
[20]
The jurisdictional facts for a section 40 (1) (b) of the criminal
procedure act 51 of 1977 defence are that the
arrestor must be a
peace officer; the arrestor must entertain a suspicion; the suspicion
must be that the suspect committed an
offence referred to in schedule
; and the suspicion must rest on reasonable grounds.
[21]
The only issue to be determined regarding the cause of action between
the parties is whether the peace officers
had reasonable grounds for
the arrest. The defendant bears the onus of establishing the
lawfulness of the plaintiff's arrest on
a balance of probabilities.
[22]
Charmaine told Constable Mampuru and warrant officer Tlhotse that the
plaintiff rented the premises from FPT and
did not have permission to
sublet. He also informed them that Chris was u known to FPT. I am
mindful that Charmaine did not testify
at the trial. However, the
information that Charmaine, Ms Moshoeshoe and Chris gave to the
police during the investigation of the
crime, objectively viewed, is
of sufficient weight to induce any reasonable police officer to form
a considered opinion that the
plaintiff has committed an offence
justifying an arrest without a warrant.
[23]
It is not a requirement of the Act that the arresting officer must
base his opinion on undisputable evidence, it
suffices that the
arrestor, on reasonable grounds, entertains a suspicion that the
suspect committed an
offence
referred to in schedule 1 of the
Act.
[24]
I am satisfied that the. defendant has established the four
jurisdictional facts required for a defence under section
40(1)( ) of
the Criminal Procedure Act. Consequently, I find that the arrest of
the plaintiff was lawful and his claim must fail.
ORDER
The
plaintiff's claim is dismissed with costs.
S
S MPHAHLELE
JUDGE
OF THE
HIGH
COURT, PRETORIA