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[2018] ZAGPPHC 151
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Lebelo v Minister of Police (25300/2014) [2018] ZAGPPHC 151 (2 February 2018)
HIGH
COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO: 25300/2014
NOT
REPORATBLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
In
the matter between:
SELLO
MOSES
LEBELO
Plaintiff
and
MINISTER
OF
POLICE
Defendant
JUDGMENT
1.
The plaintiff instituted action against the defendant
claiming
damages arising from his alleged unlawful arrest and detention by a
police officer acting in the course and scope of his
duty with the
defendant. The defendant denied liability and the parties joined
issue in respect of the question of liability. The
question this had
court to decide was thus whether the plaintiffs arrest by Constable
Moloto on 29 May 2013 and his detention thereafter
by Constable
Moloto up to the date of plaintiffs first appearance before the court
on 31 May 2013, was lawful or unlawful. The
issue of quantum was
postponed sine die which included the question of whether the
plaintiffs continued incarceration after 31
May 2013 until his
eventual release on bail was similarly lawful or unlawful.
2.
The defendant pleaded that the arrest and subsequent
detention was
lawful
in
terms of section 40 (1) (b) of the Criminal
Procedure Act, Act 51 of 1977, in that the arresting officer
entertained a reasonable
suspicion that the plaintiff had committed
the Schedule 1 offence of theft.
3.
It was common cause between the parties that the
onus was on the
defendant to allege and prove the lawfulness of the arrest and
detention. In this regard the defendant had to prove
on a balance of
probability that the arrestor was a peace officer, that he had
entertained a reasonable suspicion, that the suspicion
was that the
suspect had committed a Schedule 1 offence, and that the suspicion
was based on reasonable grounds. It is trite that
the onus rests on a
defendant to justify an arrest. See Minister of Safety and Security v
Sekhoto and Another 2011 (1)SACR 315
(SCA).
4.
A brief background to the matter is the following.
It was common
cause between the parties that the plaintiff was arrested by
Constable Moloto on 29 May 2013 without a warrant of
arrest. The
plaintiff appeared in court on 31 May 2013 and thereafter on regular
occasions until the case against him was withdrawnon
6 September
2013.
5.
The defendant accepted the duty to begin and
presented the evidence
of two witnesses, namely the arresting and detaining officer,
Constable Moloto, who was also the investigating
officer in the case,
and his colleague, the temporary investigating officer in the case
while Constable Moloto was on vacation,
ConstableHlako.
6.
After the plaintiff had closed its case, the defendant,
without
closing his case, applied for judgement against the defendant. After
some debate regarding the approach of the court in
such a situation,
Advocate Geach SC, appearing on behalf of the plaintiff, closed the
plaintiff's case.
7.
Constable Hlako was not involved at all when the plaintiff
was
arrested and detained by Constable Moloko and his evidence was
consequently of no relevanceand need not be referred to.
8.
Constable Moloto's evidence regarding the sequence of
events was not
very clear but it seemed that on 24 May 2013 he was at the corner of
Church Street and Vermeulen Street, which is
now Madiba Street, in
Pretoria. He testified that an informer had informed him of a crime
which had been committed at that point
by a person known as "Ghost".
While Constable Moloto was at the streetcorner he saw the
complainant, Mrs M.M. Maluleke,
who informed him that her laptop
computer had been stolen from her vehicle which was parked at that
corner. He told her to report
the matter to the Pretoria Central
Police Station where he was also stationed.
9.
Mrs Maluleke made a statement on 24 May 2013 in
which she stated that
at approximately 10:20 on that same day she had parked her car at
that particular corner and when she came
back she was informed by two
car guards that they saw two male persons opening the boot of her car
and taking her laptop. They,
the eyewitnesses, further told her that
those two persons threatened them if they should inform on them. She
further stated that
according to the two car guards, the
eyewitnesses, which were Mr Thabo Ramatsetse and Mr Joel Swart, the
two persons who had opened
the boot of her car and had stolen her
laptop were a man known as Jazzman who was in the company of a man by
the name of Molefe
Botha. In the statement of Mrs Maluleke it was
stated that the laptop was a black Applemac computer but
the word "black"
had been deleted and the word "silver"
had been written above it. Constable Moloto could not explain why the
colour description
of the computer had been changed or by whom it had
been changed or when. Constable Moloto testified that he read and
verified the
affidavit.
10.
Constable Moloto further testified that on 28 May 2013 he went
back
to the same streetcorner and spoke to the eyewitnesses Messrs
Ramatsetse and Swart. They accompanied him to the Pretoria Central
Police Station where he took their statements. The relevant part of
the statement of Mr Joel Swart reads as follows:
"On
Friday 2013-05-24 at about 10:30 I was at Cnr Vermeulen (Madiba) and
Paul Kruger Street. I was helping to park the cars
and wash them. I
then saw Jazzman open a rear boot and taking out a laptop silver in
colour. He then putted it inside his bag.
Dark blue in colour. Molefe
then followed him using Paul Kruger Street. From there I do not know
where they went. That is all I
can explain."
11.
The relevant part of the statement of Mr Thabo Samuel Ramatsetse
reads as follows:
"On
Friday 2013-05-24 at about 10:15 I was at corner Church and Madiba
street doing my daily job to park vehicles. As I was
busy I saw
Jazzman on a brown Nissan. He opened a boot and took out a silver
laptop. He then putted inside his bag. Dark blue in
colour. He closed
the boot and left. He took Paul Kruger Street going South direction.
Molefe then accompanied him. I then did
not see where they went to."
12.
Constable Moloto further testified that on the next day, 29
May 2013,
he was in the area of the police cells inside the Pretoria Central
Police Station. There he saw the one eyewitness, Mr
Ramatsetse. He
testified that Mr Ramatsetse pointed at the plaintiff, who was
apparently also in that area, and said that he was
one of the persons
who stole the laptop. Constable Moloto then arrested the person who
was the plaintiff.
13.
Constable Moloto added that Mr Ramatsetse told him this person used
a
remote control of a gate to jam the signal of the motor vehicle when
the complainant was trying to lock the vehicle. This prevented
the
vehicle from being locked and allowed the other suspect to open the
car and steal the laptop.
14.
Constable Moloto made a statement on the same day of the plaintiff's
arrest namely 29 May 2013. In paragraph 2 of that statement he said
the following:
"On
Wednesday 2013-05-29 at about 11:15 I was at the cells Pretoria
Central Cells when I was approached by one of my witness
Ramatsetse.
He informed that he is been arrested of source of danger. He then
showed me one of my suspect whom he saw when they
took the laptop out
of a motor vehicle that belongs to Maria Maluleka.
I
then went to him and introduce myself. I told him that he is my
suspect on Pretoria Central CAS 1085/05/2013. Theft out of motor
vehicles. Then told him his rights and told him that I am arresting
him. His name is Sello Lebelo (known as Ghost)."
15.
According to Constable Moloto he arrested the plaintiff because he
was
pointed out by Mr Ramatsetse.
16.
It was submitted on behalf of the plaintiff that although Constable
Moloto was the investigating officer and in possession of the crime
docket, he failed to investigate the obvious errors and
contradictions
between the statements and neither did he investigate
the alteration in the complainant's own statement regarding the
colour of
the allegedly stolen laptop computer It was submitted that
in reality Constable Moloto had done no investigation and simply
relied
on the pointing out by Mr Ramatsetse for the arrest of the
plaintiff.
17.
In this regard reference was made by Advocate Geach to the matter of
Mabona
and another v Minister of Law and Order and others
1998 (2) SA
654
(SE) at p658 which reads as follows:
"Would
a reasonable man in the second defendant's position and possessed of
the same information have considered that there
were good and
sufficient grounds for suspecting that the plaintiffs were guilty of
conspiracy to commit robbery or possession of
stolen property knowing
it to have been stolen? It seems to me that in evaluating his
information a reasonable man would bear in
mind that the section
authorises drastic police action. It authorises an arrest on the
strength of a suspicion and without the
need to swear out a warrant,
ie something which otherwise would be an invasion of private rights
and personal liberty.
The reasonable man will
therefore analyse and assess the quality of the information at his
disposal critically, and he will not
accept it lightly or without
checking it where it can be checked. It is only after an examination
of this kind that he will allow
himself to entertain a suspicion
which will justify an arrest.
This is not to
say that the information at his disposal must be of sufficiently high
quality and cogency to engender in him a conviction
that the suspect
is in fact guilty. The section requires suspicion but not certainty.
However, the suspicion must be based upon
solid grounds. Otherwise,
it will be flighty or arbitrary, and not a reasonable suspicion."
(my underlining)
18.
On behalf of the plaintiff reference was also made to the matter
of
Matsietsie v Minister of police (A 3103/2015) [2017) ZAGPJHC 29 (20
February 2017) at paragraph [9] where the following was
said:
"In
Duncan v Minister of Law and Order
1986 (2) SA 805
(A) at 818G-H
where Van Heerden JA explained that once the jurisdictional
requirements of section 40(1)(b) of the Criminal Procedure
Act 51 of
1997 (the CPA) are satisfied, the peace officer may, in the exercise
of his discretion, invoke the power to arrest permitted
by the law.
However, the discretion conferred by section 40(1) of the CPA must be
properly exercised, that is, exercised in good
faith, rationally and
not arbitrarily. If not, reliance on section 40(1) will not avail the
peace officer."
19.
I respectfully concur with the aforesaid findings. In order to
establish
whether Constable Moloto could have entertained a
reasonable suspicion that the plaintiff had committed the crime of
theft, it
is necessary to analyse the information he had at his
disposal prior to the arrest of the plaintiff.
20.
The information he obtained from the statement of the complainant was
that she had been told by two alleged eyewitnesses, namely Mr
Ramatsetse and Mr Swart, that two male persons opened the boot of
her
car; took out a silver laptop; threatened the
two eyewitnesses, and walked away. According
to the
eyewitnesses the thieves were a certain Jazzman and a certain Molefe
Botha.
21.
However, according to the written statements of the two eyewitnesses
taken down by Constable Moloto, quite a different version was given.
According to their statements it was only Jazzman who opened
the boot
of the vehicle. There was no mention of a second person opening the
vehicle or even in the proximity of the vehicle. Furthermore
it was
clear that Jazzman then moved away from the vehicle towards the
South. At that point the laptop was not visible as it was
inside a
bag carried by Jazzman. Then, at some point, a person known as Molefe
followed Jazzman, according to one of the eyewitnesses,
or joined
Jazzman, according to the other eyewitness.
22.
There were thus significant differences in the versions of the
eyewitnesses
given to Constable Moloto and to the complainant, Mrs
Maluleke, respectively. Furthermore and in any event, on none of the
versions,
the person known to the eyewitnesses as Molefe, had, on the
face of it, anything to do with the theft of the laptop. Nothing was
said or reported to have been said, by the eyewitnesses, that could
implicate the person known as Molefe with the theft committed
by
Jazzman.
23.
Furthermore, there was no evidence whatsoever to suggest that the
person
known as Molefe was in fact the plaintiff. According to
Constable Moloto his informer had mentioned the name "Ghost"
as the person who had committed some or other crime at that
particular corner.
24.
It seems clear that Constable Moloto did not investigate at all the
discrepancies between the names Ghost, Molefe and that of the
plaintiff, before arresting the plaintiff. But what is more
disturbing
is that even if it were to be accepted that all these
names refer to the plaintiff, there was no evidence whatsoever at his
disposal
that the plaintiff, or Molefe, or Ghost, or whoever this
person was, had participated in the theft of the laptop computer.
According
to the statement of the two eyewitnesses to Constable
Moloto, this person merely followed or may even have joined Jazzman
at a
stage after Jazzman had already committed the theft.
25.
The discrepancy in their versions namely that there were two persons
at
the vehicle who had opened the boot and stolen the laptop and
threate
ned Mr.
Ramatsetse
and Mr Swart, as opposed to the version that the boot was only opened
by Jazzman who took out the laptop and moved down
Church Street,
after which he was joined by Molefe, was also not investigated and
cleared up. This discrepancy is of particular
importance since it
reflects on the question whether another person, be it Molefe, Ghost,
the plaintiff or anybody else, had also
participated in the theft.
26.
On the information at his disposal Constable Moloto could therefore
not have formed a reasonable suspicion, firstly, that a second person
was in fact involved with Jazzman in the theft of the laptop
computer, and, secondly, that such a person was the plaintiff.
27.
Due to the aforesaid serious discrepancies in the versions at his
disposal and the lack of vital information to form any opinion in
regard to crucial elements of the case, the fact that the one
eyewitness, Mr Ramatsetse, pointed out the plaintiff at the cells, is
simply not sufficient to overcome the aforesaid difficulties.
consequently agree with the submission on behalf of the plaintiff
that Constable Moloto simply arrested the plaintiff on the pointing
out of the one eyewitness and not as a result of a reasonable
suspicion which he could have had based on the information at his
disposal.
28.
Advocate Matlou, for the defendant, submitted,
inter alia,
that
although the quality of the investigation of Constable Moloto was
questionable and that he failed "to ask the right questions",
his conduct was nevertheless reasonable and that he did not arrest
the plaintiff with an ulterior motive. It was submitted that
the
acted on the information he possessed and on what his witness had
told him.
29.
The fact remains, however, that Constable Moloto had information at
his
disposal which was so contradictory and inadequate that it
couldn't even remotely be said that another person, apart from
Jazzman,
had been involved in the theft. Furthermore that even if
there was such a second person, that that person could have been the
plaintiff.
There were simply too many contradictions , discrepancies
and unanswered questions to constitute a basis for a reasonable
suspicion
that the plaintiff had been part of the theft.
30.
On behalf of the defendant mention was also made of the issue of the
remote
control which could have been used in the perpetration of the
theft. Firstly, if anybody had used a remote control in order to
prevent the vehicle from being locked by the complainant, such would
have been a vital piece of information against the person who
had
used the remote control. Yet, when Constable Moloto interviewed the
two eyewitnesses and took down their statements, not a
word was said
about a remote control. It is inconceivable that none of the
eyewitnesses would have mentioned the use of a remote
control if it
had been the truth, as it would have been the only manner in which
another person who was not in the close proximity
of the vehicle,
could have been part of the theft. Furthermore, Constable Moloto
clearly gathered no evidence to support the idea
that a remote
control had been used by anybody prior to the theft of the laptop
computer.
31.
During his evidence in chief no reference was made to the paragraph
in
the statement of Constable Moloto referring to the remote control
which he allegedly found on the person of the plaintiff after
his
arrest. It was also belatedly during his cross-examination that
Constable Moloto stated that Mr Ramatsetse informed him about
the use
of the remote control. I have serious doubts about the truthfulness
of this evidence not only because of the manner in
which it came out
late during cross-examination but also because of the fact that this
vital piece of information, if it were to
be the truth, had not been
mentioned in Constable Moloto's statement which he wrote after the
arrest of the plaintiff. It is inconceivable
that he would have
omitted such a vital detail from his statement.
32.
It was further submitted on behalf of the plaintiff that according
to
the evidence of Constable Moloto he was not aware that theft was a
Schedule 1 offence and that this fact alone dealt a fatal
blow to the
defence regarding the legality of the plaintiffs arrest. In this
regard I was referred to the matters of Mhaga v Minister
of Safety
and Security
[2001] 2 All SA 534
(Tk) and Naidoo v Minister of police
(20431/2014) [2015] 152 (2 October 2015) paragraph [42].
33.
Having regard to all the evidence it is clear that Constable Moloto
relied solely on the report made to him by Mr Ramatsetse in pointing
out the plaintiffat the police cells and that he did not actually
form his own suspicion, and could not have formed his own suspicion
for the reasons mentioned above, and consequently that no reliance
can be placed on section 40 of the Criminal Procedure Act to make the
arrest and detention of the plaintiff lawful. For the reasons
mentioned above Constable Moloto could never have formed a reasonable
suspicion that the plaintiff was guilty of theft.
34.
Consequently the defendant has failed to make out a case that the
arrest
and detention of the plaintiff was lawfully justified. The
defendant's evidence clearly demonstrates that Constable Moloto never
had or could ever have had, objectively, a reasonable suspicion as is
required for a lawful arrest in terms of section 40 (1) (b)
of the
criminal Procedure Act.
35.
As far as costs are concerned there is no reason why costs should not
follow the event. I am also satisfied that the costs of senior
counsel should be included. I have been asked by Advocate Geach SC
to
make a cost order which refers to certain specific items which in his
submission the plaintiff is entitled to but which would
apparently
not be allowed by the Taxing Master unless specifically included in
the court order. I am prepared to make such an order.
36.
In the result the following order is made:
1.
The arrest of the plaintiff without a warrant on 29 May 2013
and his
detention until 31 may 2013 was unlawful.
2.
The defendant must pay the Plaintiffs taxed or agreed party
and party
costs of suit on the High Court scale to date hereof, including but
not limited to the fees of the interpreter Mr. R
Buda and of Senior
Counsel, including Senior Counsel's reasonable fees for preparation
and advice on evidence, as well as the reasonable
travelling and
subsistence expenses for attending at court of the Plaintiff, who is
declared to be a necessary witness.
3.
It is recorded that all the other issues herein have been postponed
sine die
as was earlier ordered on 31 January 2018 and it is
noted that such issues include the question of whether the Plaintiffs
continued
incarceration after 31 May 2013 until his eventual release
on bail was similarly lawful or unlawful.
C.P.
RABIE
JUDGE
OF THE HIGH COURT