About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2018
>>
[2018] ZAGPPHC 111
|
|
Chikurunhe v Minister of Police (4491/2015) [2018] ZAGPPHC 111 (23 February 2018)
HIGH
COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO: 4491/2015
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
Date:2
March 2018
In
the matter between:
BERNARD
C
HIKURUNHE
Plaintiff
and
THE
MINISTER OF
POLICE
Defendant
JUDGMENT
DAVIS,
J
[1]
This is an action in which the Plaintiff claims damages for alleged
unlawful arrest and detention by
members of the South African Police
Services.
[2]
The following are common cause:
2.1
The Plaintiff was arrested on the N12 highway near the Springs
offramp by members of the South African Police
Service Flying Squad;
2.2
The admitted facts on the pleadings are that the arrest took place on
28 July 2014 but on the evidence of the parties
this must have been
on the 29
th
of July 2014. The summary of the facts set out
hereunder will explain where the confusion came in.
2.3
A certain Constable Mokobane was the arresting officer;
2.4
The Plaintiff was taken to Delmas SAPS and thereafter to Witbank SAPS
where he was incarcerated;
2.5
The case (and the Plaintiff) was subsequently transferred to the
Springs SAPS whereafter the control
prosecutor decided on 31 July
2014 not to proceed with a case against the Plaintiff and he was
released;
The
Plaintiffs evidence
[3]
The Plaintiff testified that he is a truck driver and he was during
the incident in question
driving a truck for his employer from
Kimberley to Witbank and back. On his way
from
Kimberley he
came across two ladies who were looking for a lift. As it turns out,
they were not hitchhikers but engaged in one of
the oldest
professions known to mankind. He negotiated a price for a
"short
time"
with the one lady and took the telephone number of the
other. He and the one lady who accompanied him shared a night of
passion,
(albeit at an agreed price) at his ovef!light stop near
Witbank where he offloaded the truck's load and loaded another
freight
for the return trip to Kimberley.
[4]
On this return trip and on the N12 highway and near the Springs
offramp the truck lost a
wheel. He pulled off near the offramp and
contacted his employer who sent a back-up vehicle with a spare tyre.
Whilst waiting for
them, three members of the South African Police
Service Flying Squad pulled up in a vehicle and started questioning
him. They also
investigated the cab of the truck where they found the
young lady playing loud music.
[5]
The Plaintiffs version is that, after having explained to the Police
that his truck had lost a
wheel, they indicated that they had seen a
brick delivery truck of a different company uploading a wheel just a
distance back.
[6]
According to the Plaintiff, this truck must have come from the
opposite direction and noticed his truck's
wheel next to the side of
the road. After this other truck had dropped off its load or
otherwise turned around, be it on the highway
or otherwise, they must
have stopped and then salvaged his truck's wheel next to the highway.
[7]
Due to the Plaintiffs conversation with the Police, they pulled over
this brick-carrying truck and recovered
the Plaintiffs truck's wheel
for him. For having done him this
'favour",'
so the
Plaintiff says, the spokesperson of the three Flying Squad members
demanded compensation of R100.00 per Police officer.
[8]
Upon the Plaintiffs refusal to do so, he and the young lady were
taken into custody by the Police
and taken by them to the Springs
Police Station. There they explained to the senior officer on duty
that they wanted to arrest
the Plaintiff for having committed
"statutory rape"
on an underaged female person,
being the young lady in question. The senior officer, so the
Plaintiff says, refused to have this
take place and sent the Police
on their way whereafter they took the Plaintiff and the young lady to
the Delmas Police Station
where exactly the same occurred and the
senior Police officer again refused to have such an arrest take
place.
[9]
Thereafter the Police took the Plaintiff and the young lady to the
Witbank Police Station. On
the way there, so the Plaintiff says, the
senior of the three Policemen threatened the young lady with arrest
herself if she did
not agree to laying a charge against the Plaintiff
which she, tearfully, consented to do. It was pursuant to this that
the Plaintiff
was arrested and subsequently transferred together with
the case to the Springs Police Station and Magistrate's Court and,
according
to his particulars of claim
"On 31 July 2014 the
control prosecutor at Springs Magistrate's Court declined to
prosecute the Plaintiff and struck the matter
off the roll".
[10]
The Plaintiff further testified that he was aggrieved by this arrest
and detention,
that he was insulted thereby and injured in his
reputation and dignity and that he subsequently lost his job
resulting in a year's
unemployment.
[11]
The evidence of the Plaintiff as a single witness concluded the
Plaintiffs
case.
The
Defendant's case
[12]
The Defendant also only called a single witness, namely the arresting
officer,
Constable Mokobane.
[13]
His version more or less coincides with that of the Plaintiff but for
the following
important distinctions:
13.1
There was no brick-carrying truck who had picked up the Plaintiffs
truck's tyre and which
had to be stopped by the Flying Squad in order
to retrieve the tyre.
13.2
Upon inspection of the Plaintiff's truck's cab, there was no loud
music playing and
the constable found a dishevelled young lady. He
labelled her apparently destitute and dirty and in cheap clothes. She
looked to
the constable as young as his own daughter which is
approximately 12 years old.
13.3
Upon enquiry as to her presence in the truck, she burst into tears
and said
that the Plaintiff had taken her with him on his way from
Kimberley and had slept with her the previous night.
13.4
Apart from the fact that she was underage and could not consent to
sexual intercourse,
she appeared to the constable to be in need of
care and protection.
13.5
Before arresting the Plaintiff, the constable confronted him and
asked how he could
have sex with an underaged female. There is some
dispute as to whether the young lady would have told the constable
that she was
the Plaintiffs girlfriend and which he vehemently denied
and the constable's version that there was no such talk of boyfriend
and
girlfriend.
13.6
Be that as it may, the constable wanted to take the young lady to the
closest Police
station where there was a specialist
" FCS
Unit".
That is a unit dealing with family violence and
sexual offenses. The closest such unit was at Delmas but upon arrival
there he could
not find the designated female officer which prompted
him to proceed with the Plaintiff and the young lady to Witbank SAPS
where
there was such a specialist unit.
13.7
Here the Plaintiff was warned of his constitutional rights,
incarcerated and the docket
handed over to other police members and
investigators. The constable testified that he played no further part
other than being
the arresting officer.
13.8
At all relevant times he was under the genuine belief that the young
lady was far under
age and he held a reasonable suspicion that a
crime as contemplated in schedule 1 of the Criminal Procedure Act No
51 of 1977had
been committed.
13.9
Hereafter the Defendant closed its case.
Documentary
evidence
[14]
Exhibit A:
14.1
During cross-examination of the Plaintiff an extract of a SAPS 3M
Form was presented and the Plaintiff
was confronted with the contents
thereof as well as an alleged statement by him as a suspect.
14.2
The Plaintiff denied having made this statement and denied his
signature on the document. His handwriting
also does not appear on
it. The document was dated 31 July 2017 and apart from the fact that
it is strange that a suspect's statement
is only taken on the day
that he has to appear in Court and not the day of his arrest, the
author of the document was not called
and no other evidence was
called to properly introduce this document as evidence.
14.3
No regard can therefore be had to this document or its contents.
[15]
Exhibit B:
15.1
The Plaintiff was similarly confronted by this document in cross
examination. It is a printed
notice of rights in terms of the
Constitution to be signed by an arrested person. It contains the
Plaintiffs particulars of claims
and various case numbers and a
serial number.
15.2
In it the arrested person is informed that he is being detained for
the reason of
"statutory rape ".
The Plaintiff
denied having signed this document although it is dated 19h00 on 29
July 2014, being the date and time all the evidence
point towards to
as being the correct date and time of arrest. It was purportedly
signed at Witbank.
15.3
Again, the author of the document and the Police officer who signed
it and who informed
the arrested person of his rights was not called.
On all probabilities, however, this appear to have been a document
signed by
the Plaintiff although he denied having signed anything on
that or any other day.
[16]
Exhibit C:
16.1
This document was a colour copy of the front page of the docket. The
original docket was
in Court and counsel for both parties confirmed
that this was a correct copy thereof.
16.2
It indicates a Witbank case number CAS 965/07/2014 which was deleted
and replaced
by the word
"Springs
". It also bears a
Middelburg case number CAS 604/7/2014. It has the name of various
investigating officers who were apparently
from time to time replaced
and the previous officer's name then deleted. (I again reiterate that
none of these officers were called
to testify and their evidence
would surely have shed light on a lot of aspects).
16.3
The date and time of the offence is indicated at between 00h00 on 28
July 2014
and 05h00, again on 28 July 2014 (although this should have
read
29 July
2014 and which would have tied in with the
evidence of the date of arrest after the overnight
"sleeping
together"
of the Plaintiff and the young lady.
16.4
As a
"method used",
the word
''penetration"
has been inserted and as type of instrument the word
"penis"
has been inserted. The
"address of offence",
is
indicated as N12 highway, Witbank. The name of the complainant and
her cell phone number is also indicated therein and the description
of the offence is
"statutory rape"
(the particulars
of which would have appeared on item Al in the docket) and the
complainant's age is indicated as 14 years.
16.5
Regarding the conclusion of the trial the docket contains an initial
inscription
"not placed on roll",
with a signature
and thereafter
"nolle
prosequi"
with the reference to item Al2 in the docket. This
certificate of non-proceeding with the prosecution bears the Regional
Court Prosecutor
Middelburg's stamp of 23 December 2014 together with
another signature.
16.6
This concludes exhibit C and I reiterate that many of queries or
loose ends elucidated
by this exhibit would have but was not cleared
up by evidence of other witnesses. Neither items Al nor Al2 in the
docket were introduced
into evidence.
[17]
Exhibit D:
17.1
This is a hand-written document labelled A2 in the Police docket with
the heading
"Arrest Statement".
This statement was
signed by the Defendant's witness and confirmed by him in court and
he was extensively cross-examined on it.
17.2
As a result hereof and as a result of its importance in the
evaluation of whether
a defence of justification has been
established, I quote it here in full. After identifying himself by
his rank and number and
stating that he is at Middelburg Flying Squad
the witness deposed as follows:
"On
the 29-07-2014-12:30 while on duty in full uniform on N12 (freeway)
with Constable ...doing patrol spotted a broken- down
truck
registration number
...
driven
by an African male by the name of Bernard Chikurunhe.
We
approached it and introduced ourselves and asked why is it that he
stopped on the freeway. As we were busy looking inside the
truck we
found a young African female very young and not in good condition
physically. I asked her to jump offfrom the truck then
she started
crying. I asked her to stop crying so that I can get her name and
tell me what's wrong.
I
then asked her how old she is, she said 14 years. I asked her who is
the driver, she said she doesn 't know his name. I asked
the driver
who is this girl and why is he travelling with her, where is she
from? He replied by saying it's his girlfriend, when
I asked him how
old is she he said she is 19 years old.
When
she stopped crying after she calmed down she told me that she was
born in 2000-03-28 and her name is ...and she is from Kimberley
and
that the truck driver slept with her (had sex).
When
I asked the driver how can he have sex with a minor a 14-year old he
kept saying its his girlfriend. I then explained to him
that it is a
criminal offense to have sex with a minor. I therein read him his
rights and arrested him free from injuries and took
him to Witbank
SAPS
... “
Defendant's
defence:
[18]
The Defendant did not proceed with its special plea relating to
alleged non-compliance of the
provisions of the Institution of Legal
Proceedings Against Organs of State Act, No. 40 of 2002 and pleaded
as follows on the merits:
"5.1.1
The Defendant pleads that the Plaintiff was lawfully arrested in
terms of Section 40(l)(b) of the Criminal Procedure
Act, which
provides as follows:
(1)
A peace officer may without a warrant arrest any person
-
(b)
whom he reasonably suspects of having committed an offense referred
to in schedule (]) other than the offense of escaping from
lawful
custody.
5.1.2
The Plaintiff was .arrested by a member of the SAPS who at all
relevant times hereto a peace officer as defined in Section 1 of the
Criminal Procedure Act as amended.
5.1.3
The said member reasonably suspected the Plaintiff of having
committed an offense referred to in schedule 1 of the Criminal
Procedure
Act to wit rape
... "
Evaluation
[19]
There is no evidence as to what the complainant would have told the
Plaintiff,
particularly regarding her age or not and her statement
was never placed before Court.
[20]
Constable Mokobane testified that he was aware that the docket
contained extracts
from her school record indicating that she was
under age but none of this was formally proven in Court.
[21]
It appears that the Plaintiff genuinely believed that the young lady
in question
was over 18 years old and that he was genuinely surprised
at his arrest and the allegations of committing the crime of having
sex
with an underaged female. He so openly confessed in his evidence
in chief to having had intercourse with the young lady that it
cannot
be accepted that he would voluntarily have admitted to such a heinous
crime or that his counsel would have allowed him to
do so and present
that evidence to Court if he did not still believe the lady to be
over 18.
[22]
The fact that the Plaintiff may have believed the young lady to be
over the
age of consent is, however, not the question. The question
is whether facts have been established which could objectively
justify
the arresting officer's belief that a crime had been
committed i.e. can he validly, on the facts, have formed a reasonable
suspicion
that a schedule 1 crime had been committed.
[23]
The arresting officer testified in a calm and controlled manner and
although
soft spoken, answered questions put to him in a forthright
and logical manner, including those put in cross-examination. There
are no inherent improbabilities in his version and his version
accords with all the common cause facts.
[24]
On the other hand, the version of the Plaintiff, if not impossible
then is certainly
extraordinary. This includes the improbable
scenario of a passing truck turning around at a point unknown to the
Plaintiff, picking
up his tyre, also unbeknown to him and that the
same truck, before even passing him was being able of being stopped
by the Police
and his tyre thereby recovered. No evidence was also
presented as to the replacement of the tyre once recovered and the
sending
back of the Plaintiffs employer's back-up vehicle or any of
these circumstances. Whether the Police, after having arrested the
Plaintiff went to one or two other Police stations does not appear to
be that material and at least the stop at one Police station,
being
Delmas, has been fully explained. The version of how one Policeman,
being the arresting officer, was determined to perform
the arrest and
go through with it despite being advised against it by his co-flying
squad members, the other members and senior
officer at the Springs
Police Station, the members and the senior officer at the Delmas
Police Station and all this only for the
non-payment of an alleged
bribe of a R100.00 is equally extraordinary.
[25]
In my view of the facts, I need not make an express finding rejecting
the Plaintiffs
version in this regard but what I do reject is his
version that he was simply and only arrested as a result of this
ulterior motive
and after the young lady had been threatened by the
Police. I do accept the evidence of the arresting officer of having
formed
a clear and reasonable suspicion that an offence had been
committed and his version of how and in what state he had found the
young
lady.
[26]
Even in so far as I have rejected portions of the Plaintiffs
evidence, I still formed
the impression that he genuinely believed
that he had not committed a crime and that he had been hard done in
by the arrest. I
take this fact into consideration in exercising my
discretion in respect of the issue of costs and weigh it against the
lack of
proper presentation of the Defendant's case and the failure
to not call any number of corroborating witnesses who were all
involved
in the incident. This included the other members of the
Flying Squad who had accompanied the arresting officer, the various
investigating
officers and the state prosecutor or, if then not the
prosecutor himself, the lack of proper introduction into evidence of
the
other affidavits contained in the docket, which would have
included the complainant's statement and the explanatory statement
for
not proceeding with the prosecution. I interpose to state that
the arresting officer had explained that it was 1'eyond his
comprehension
why the prosecution had not gone ahead and according to
him
" Someone had not done their job".
Counsel for
the Defendant had valiantly argued that I should not draw negative
inferences from the absence of this evidence but
the lack of
presentation thereof made the Court's job more difficult and falls
short of the standard to be expected from an organ
of state who had
been called upon to justify its actions.
Conclusion
[27]
An arrest or detention is
prima facie
wrongful and unlawful
and the onus is on the arresting party to prove that an arrest
without a warrant was justified and lawful
in terms of
Section 4:0(1)
of the
Criminal Procedure Act, No. 51 of 1977
as pleaded by the
Defendant.
[28]
Upon a conspectus of the facts and the evidence and the summaries
thereof
set out above, I am of the view that the Plaintiff had not
proven its case on a balance of probabilities and that the Defendant
had satisfied the onus of proving the justification of the arrest on
a balance of probabilities and that there has been sufficient
"reasonable grounds" present as elucidated in
Mangalaga
v MEC for Safety and Security
Eastern Cape
[2001] 3 All SA 255
(TK) and the cases discussed therein.
Order
[29]
In the result I make the following order:
1.
The Plaintiff's claim is dismissed.
2.
Each party shall pay his own costs.
N
DAVIS
Judge
of the High Court
Gauteng
Division, Pretoria
Date
of Hearing:
22 - 23 February
2018
Judgment
delivered:
5 March 2018
APPEARANCES:
For
the Plaintiff: Adv. Maluleka
Instructed
by:
MH
Malepe Attorneys
For
the Defendant: Adv. Moja
Instructed
by:
The
State Attorney, Pretoria