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[2018] ZAGPPHC 383
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J.T v Minister of Police and Another (26082/11) [2018] ZAGPPHC 383 (9 March 2018)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN THE HIGH COURT OF SOUTH
AFRICA
(GAUTENG DIVISION, PRETORIA)
(1)
NOT
REPORTABLE
(2)
NOT OF
INTEREST TO OTHER JUDGES
(3)
REVISED.
Case
Number: 26082 / 11
9/3/2018
In
the matter between:
J
T
Plaintiff
and
MINISTER
OF
POLICE
First Defendant
CONSTABLE
MTHETO
Second Defendant
JUDGMENT
NOWOSENETZ
AJ
[1]
This is an action by the plaintiff for damages for wrongful arrest
and detention.
He alleges in his particulars of claim that on 18
February 2010 he was arrested without warrant at his home in Pretoria
and was
unlawfully detained at Silverton police holding cells for a
period of 15 days. He claims the amount of R450 000 as damages for
loss of freedom, contumelia trauma and damage to his dignity and
reputation.
[2]
It is common cause that on 18 February 2010 a complaint was laid
against the plaintiff
by T G T of indecent assault at the Silverton
Police Station. At the time she was the plaintiff's wife and she
their minor daughter
T C T and the plaintiff lived together in the
common home in Nellmapius Pretoria. She alleged that the plaintiff
had sexually molested
their minor child who was 4 years of age at the
time.
[3]
Two witnesses-gave evidence on behalf of the defendants: Firstly
Constable (Mr)S E
Motsepe who was the arresting officer and secondly
Constable (Ms) KM Motheto, the second defendant and the investigating
officer.
Both were based at Silverton Police Station. Motsepe was
that on 18 February 2010 his colleague Sergeant (Ms) Mafora gave him
a
report of a written complaint by Ms Thoka. The statement alleged
that the child complained that her vagina was painful when the
mother
bathed the child. There were also discharges in the child's panties.
The child had told her that the plaintiff had put his
finger in the
child's vagina.
[4]
He also interviewed the complainant who confirmed her statement. She
also informed
him that the complainant had taken the child to a
clinic for a medical examination the same day. She told him that the
findings
of the doctor were suggestive of sexual assault. She was
afraid to go home as she complained that the plaintiff was violent
and
asked for protection.
[5]
He had the docket in his possession when he went with another
constable to see the
plaintiff at his house. The purpose was to tell
the plaintiff about the complaint against him and to see the
atmosphere at the
home. He already formed the suspicion that the
plaintiff was identified as the suspect. The child knew him and he
had access to
her as they lived together in the same house. The
plaintiff was aggressive when he informed the plaintiff of the
complaint. He
realised that it was appropriate to arrest the
plaintiff. He was arrested, handcuffed and brought to the Silverton
cells. He did
not see the complainant at the plaintiff's house but
did not deny she may have been there. It was put to him that the
complainant,
the child and the plaintiff's sister were at the house
and that his sister and the complainant were fighting and the police
separated
them. He denied this. It was suggested to him that the
primary purpose of the visit to the plaintiff was not to arrest him
but
to defuse the situation and protect the complainant and child. He
rejected this.
[6]
The evidence of the investigating officer was that the plaintiff was
detained from
approximately 20h00 on a Thursday, 18 February 2010.
The next day he was fingerprinted processed and charged. The
plaintiff appeared
before a magistrate on Monday 22 February 2010. He
was remanded in custody by the magistrate. On 2 March 2010 he was
granted bail
and was released from custody. The police docket was
admitted into evidence. this included the statement by the
complainant which
the witness commissioned on 23 February 2010, the
medico legal report dated 18 February 2010 at 11h 15, the
investigation diary
and excerpts from the occurrence book. She
presented the medical report in detail. The doctor noted redness and
swollenness of
the child genital area. There were no visible
injuries. The charges were withdrawn in May 2010 because the social
worker advised
that the child was not a competent witness due to her
age.
[7]
The plaintiff described himself as self employed. He testified
concerning his version
of the arrest. He disagreed with the arresting
officer's account in the following main respects: The door was open.
There was mob
outside. He was not aggressive. He called his sister.
She fought with the complainant. The police separated them. He was
not handcuffed.
He admitted that he was detained, remanded and
released as stated by the investigating officer. He denied knowledge
of the allegations
against him in the complaint but did not deny the
contents of the medical report. He explained that the allegations
against him
were false and were caused by the child being influenced
by the mother. He and his wife were having marital problems. The
child
was sometimes left in the care of the maternal grandfather.
[8]
In
Mbotya v Minister of Police
(1122
/ 10 ) [ 20 12] ZAECPEHC 43 (10 July 2012) the requirements for an
action of this nature are well set out :
"[24]
Section
40(
1)(b) of the Criminal Procedure Act 51 of 19
77
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'.
The jurisdictional requirements
have come to be stated as fellows, that for a lawful arrest under
[the] section:
(i)
the
arrestor must be a peace officer;
(ii)
the
arrestor must entertain a suspicion;
(iii)
the
suspicion must be that the suspect committed an offence referred to
in schedule I ;
(iv)
the
suspicion must rest on reasonable grounds.
The test to be applied is an
objective test.
-
See
Duncan
v Minister
of
Law and
Order 1986 (2)SA 805 (A) at 818 G-H; Nkambule v Minister of Law and
Order
1993 (1) SACR 434
(T) at 436 A-B; Mvu v Minister of Safety and
Security and Another
2009 (2) SACR 291
(GS.J) para 9; Olivier v
Minister of Safety and Security_ and Another
2009 (3) SA 434
(W) at
440G.
…
[25] The-test
whether a suspicion is reasonably entertained within the meaning of
s40 (1)(b) is objective
S
v Nel and _ Another
1980 (4) SA 28
(E) at 33H).
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 not certainty. However the suspicion must
be based on solid grounds. Otherwise it will be flighty
or arbitrary,
and not a reasonable suspicion. - See Mabona and Another v Minister
of Law and Order
and
Others
1988 (2) SA 654
(SE) _at 658 E-H
.
See also
S v
Purcell-Gilpin
1971
_(3) SA 548 (RA).
[26] As regards onus
of proof in these matters it is settled law that a plaintiff need
only allege the deprivation of
his freedom and require of the
defendant to plead and prove justification. It is thus the defendant
who bears the onus of proving
the lawfulness of the arrest. - See
Minister of Law and Order v Hurley .1986 (3) SA 568 E-F; at 589
E-F: Minister van Wet en Orde v Matshoba 1990 (l) SA 280 ( A) per
Grosskopf JA."
[9]
It is clear that the arresting officer was a peace officer and the
complaint on the face
of it was a schedule 1 offence. The plaintiff
did not argue to the contrary. His submission was that that he was
not reasonably
linked as a suspect. The plaintiff attempted to assail
the credibility of the arresting officer on collateral issues. This
detracts
in no manner from the objective enquiry as to the
jurisdictional facts available and utilized by the arresting officer
before making
the arrest.
[10] It is
not necessary to be convinced of the guilt of a suspect before an
arrest is considered lawful.
The reasoning of the arresting officer
for suspecting the plaintiff is unassailable. The child knew him. He
had access to the child
and they lived in the same house. There was
no evidence that any other male lived in the house. He had
interviewed the complainant
and had read her statement in the docket.
He was aware of the medical examination. The arresting officer
exercised his discretion
rationally and in a bona fide manner. The
nature of the discretion was fully enunciated in
Minister of
Safety and Security v Sekhoto
2011 (5) SA 367
(SCA). The
defendant has convincingly discharged the onus of proving that the
arrest was based on a reasonable suspicion that the
plaintiff had
committed a Schedule 1 offence and thus the arrest was !awful.
[11] The
plaintiff on his own version was not detained for 15 days. He was
detained at 20h00 on Thursday
night and could not be brought before a
magistrate on the Friday as he was being finger printed, profiled and
charged. His detention
by the police was until Monday 22 February 20
10 the next first available court day after being charged. The
magistrate then exercised
the discretion to remand him without bail
and thereafter the Defendants had no responsibility for his further
detention. The plaintiff's
claim was groundless. A reasonable
explanation has been given as to why the plaintiff was not brought
before a magistrate strictly
within 48 hours as required in terms of
s 50 of the Criminal Procedure Act.
The
following order is made:
1
The plaintiff's case is dismissed.
2
The plaintiff shall pay tt1e defendants' costs of suit.
L. NOWOSENETZ
ACTING JUDGE OF THE HIGH COURT
CASE
NO: 26082/11
HEARD
ON: 6 and 7 March 2018
FOR
THE PLAINTIFF: ADV. Z. FENI
INSTRUCTED
BY: Makhafola & Verster Incorporated
FOR
THE DEFENDANT: ADV. T. LUPUWANA
INSTRUCTED
BY: Office of the State Attorney, Pretoria
DATE
OF JUDGMENT: 9 March 2018