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[2018] ZAGPJHC 537
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Landman v Minister of Police (A5011/17) [2018] ZAGPJHC 537 (4 September 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
LOCAL DIVISION, JOHANNESBURG)
Appeal Case no: A5011/17
Case no: 43953/13
In
the matter between:
ANDRE
LANDMAN
Appellant
and
MINISTER
OF
POLICE
Respondent
Case
Summary:
Delict
– Damages - due to unlawful arrest, detention, and malicious
prosecution.
Criminal Procedure Act 51 of 1977
–
s
40(1)(b)
confers power on a peace officer without warrant to arrest a
person reasonably suspected of having committed a schedule 1 offence,
which includes kidnapping –
s 50(1)(a)
requires that such
arrested person be brought, as soon as possible, to a police station,
and there detained – and
s 50(1)(b)
that he or she, as soon as
reasonably possible, be informed of his or her right to institute
bail proceedings.
Whether
police officers in casu had reasonable grounds to arrest the
appellant - had reasonable grounds thereafter to detain him
- and had
maliciously set in motion a prosecution against him. Appeal
dismissed.
JUDGMENT
MEYER
J (WEPENER J and MANAMELA AJ concurring)
[1] Arising from an
incident that happened on Thursday, 22 November 2012 (the Thursday),
at a large filling station on the R21 highway,
known as the Engen
Highveld One Stop West (the filling station), involving an employee
of that undertaking, Ms Nompumelelo Khumalo,
who alleged that she had
been detained in an office at the filling station for about eight
hours on that day, the manager, Mr Andre
Landman, was arrested
without a warrant of arrest by members of the SA Police Service at
around 08:00 on Saturday morning, 24 November
2012 (the Saturday),
handcuffed and taken to and ultimately detained at the
Olifantsfontein Police Station, until he was released
on bail that
afternoon at around 15:00. When he went to court on Monday, 26
November 2012, the charge against him of kidnapping
Ms Khumalo was
withdrawn and a
nolle prosequi
was issued in due course.
A year later, Mr Landman instituted the action, which is the
subject-matter of this appeal, against
the Minister of Police,
claiming damages in the sum of R606 000 due to unlawful arrest,
detention, and malicious prosecution.
Van der Linde J presided
at the trial, and, on 28 September 2016, dismissed Mr Landman’s
claims with costs. This appeal,
with leave of the trial judge,
is purely on fact.
[2] Section 40(1)(b) of
the Criminal Procedure Act 51 of 1977 (the CPA) confers the power on
a peace officer without warrant to
arrest a person reasonably
suspected of having committed a schedule 1 offence, which includes
kidnapping; s 50(1)(a) requires that
such arrested person be brought,
as soon as possible, to a police station, and there detained; and s
50(1)(b) that he or she, as
soon as reasonably possible, be informed
of his or her right to institute bail proceedings. The question
here on appeal,
as it was in the court
a
quo, is whether the
police officers had reasonable grounds to arrest Mr Landman; had
reasonable grounds thereafter to detain him;
and had maliciously set
in motion a prosecution against him.
[3]
Ms Khumalo had been working in the Wimpy at the filling station for
about six years. Soon after she had commenced her
duties on the
Thursday morning at 06:00, she poured herself a cup of coffee without
paying for it. The value of the coffee
was R11. The
alleged pilfering was picked up soon after Mr Landman had come on
duty that morning. He, together with
his associate Mr Riaan
Kok, reviewed the CCTV footage of the previous night, and saw Ms
Khumalo take the cup of coffee without
paying for it. He called
her into his office and confronted her with the footage. She
admitted taking the coffee without
paying for it. In line with
company policy, so he testified, he gave her the option to either
resign her employment or face
being criminally charged. As the
trial judge states in his judgment:
‘
It was a
Hobson’s choice; if she resigned, she would not be charged, but
she would no longer have her job. If she refused
to resign, she
would be charged and, in view of her admission, be found guilty.
She would get a criminal record and would
be subjected to an internal
disciplinary enquiry anyway, upon which dismissal was likely to
follow.’
[4] Ms Khumalo elected
not to resign. Mr Landman required that in that event she had
to wait in his office for the police.
Two police officers
arrived later at around 11:00. They spoke to Mr Landman, and
according to him, told him that they would
return later to fetch Ms
Khumalo; they had a tyre issue with their vehicle. Ms Khumalo
did not follow that conversation since
it was in Afrikaans, a
language she did not understand. Ms Khumalo was eventually
fetched by two other police officers in
the afternoon at about 14:30,
which was about eight hours after she had stepped into Mr Landman’s
office. This happened
only after Ms Khumalo had phoned a
friend, Const Moabelo of the Flying Squad from her mobile phone.
She was arrested, taken
to the Olifantsfontein police station,
charged for theft, and given bail. She appeared in court on the
Friday, pleaded guilty
to the charge of theft on the advice of a
person at the court, and sentenced to a fine of R200. Later,
after a disciplinary
enquiry, she was found guilty and dismissed from
her employment at the filling station.
[5] The Flying Squad
occupied what was referred to in the evidence as a static point next
to the R21 Highway at the off-ramp to
the filling station.
Const Moabelo was one of the members of the Flying Squad stationed at
that static point. Members
of the Flying Squad who were visibly
present right there at the filling station, were at liberty to use
the toilet facilities and
were treated with complimentary coffees.
So too were police officers from the Olifantsfontein police station
treated with
complimentary breakfasts and coffees at the filling
station. Over time Ms Khumalo became acquainted with Const
Moabelo, and
she also had his mobile phone’s number stored in
her one.
[6] Ms Khumalo was angry
at her treatment by Mr Landman in, according to her evidence,
detaining her in his office for about eight
hours, not allowing her
to go to the toilet (twice when she had asked him) and when he
refused her to eat when lunch was brought
to her by her supervisor,
either in his office or to leave the office to go to the designated
area where employees have their meals.
Early in the morning on
the Saturday, Ms Khumalo went to the static point and she asked Const
Moabelo to accompany her to the Olifantsfontein
police station in
order to lay a charge against Mr Landman. She explained that
she was scared to go alone. He accompanied
her and her
complaint was officially laid at about 07:00 at the Olifantsfontein
police station. A docket was opened.
Upon their return to
the static point, Ms Khumalo reported to W/O Monoge and his
team that she had laid a charge of kidnapping
against Mr Landman at
the Olifantsfontein police station, she provided the case number and
she gave her account of the events on
the Thursday - that she had
been locked by Mr Landman in his office for the major part of the day
for having taken a cup of coffee
without paying for it, that she was
not allowed to go to the toilet and that when food had been brought
to her he denied her permission
to have it.
[7]
W/O Monoge and other members of the Flying Squad went to the filling
station. Ms Khumalo pointed Mr Landman out to them.
W/O
Monoge was the arresting officer, and Sgt Tleane fulfilled a
supportive role. The two of them confronted Mr Landman.
W/O Monoge explained to him who he was, relayed Ms Khumalo’s
account of the events of the Thursday to him and he informed
him that
he had come to arrest him for kidnapping. Mr Landman denied the
allegations of kidnapping against him and there
was some exchange of
words between them. W/O Monoge testified that Mr Landman did
not deny that Ms Khumalo had been locked
up in his office for several
hours nor did he tell about the two police officers who allegedly
arrived at the filling station at
about 11:00 on the Thursday
morning. W/O Monoge explained in his evidence that in such a
scenario he listens to both versions
and tries to assess which one
is, as he said, the truth. Here, he listened to both Ms Khumalo
and Mr Landman. He took
into account that she had already
opened a criminal case of kidnapping against Mr Landman, the long
duration of her detention in
his office, that she was denied to go to
the toilet and that she was denied to have breakfast or lunch.
W/O Monoge testified
that he had-
‘
. . . seen
that there were some elements in that statement to indicate that
there was some kidnapping.’
[8] W/O Monoge arrested
Mr Landman. He was handcuffed, walked out to the marked police
vehicle and driven to the Olifantsfontein
police station to be
detained. There the senior officer on duty, Cpt Marudi, was of
the view that the facts presented to
her did not establish commission
of the crime of kidnapping on the part of Mr Landman and, on her
instructions, the police officers
on duty refused to accept Mr
Landman for detention. But, W/O Monoge and Sgt Tleane held a
contrary view. They were
concerned that the refusal to detain
him was motivated by the fact that the police officers there received
gratuitous meals and
coffees at the filling station. Sgt Tleane
testified that ‘they refused that he should be detained there
because he
is well known to them’. And in W/O Monoge’s
view they were ‘busy defeating the ends of justice by refusing
to detain the suspect’ after the matter had been explained to
them. They, therefore, took Mr Landman to the Ivory Park
police
station. There the police officer in charge also declined to
detain Mr Landman on the basis that that police station
did not have
jurisdiction in the matter. They then took him to the Thembisa
police station, where lack of jurisdiction was
also raised.
While at the Thembisa police station, someone from the
Olifantsfontein police station called W/O Monoge and
advised him that
Mr Landman could be detained at the Olifantsfontein police station.
They accordingly returned with Mr Landman
to the Olifantsfontein
police station where he was charged with kidnapping and detained in a
police cell. At around 15:00
he was released on bail.
[9]
As to the events on the Thursday, the trial judge found that Mr
Landman’s own evidence that he would have sent a person
to be
with Ms Khumalo so that she should not run away (if she had asked him
to go to the toilet), his admission that he declined
her permission
to have her food in the office or to eat elsewhere and her
undisputable anger at her treatment belie his version
that she was
voluntarily waiting in the office for the police to fetch her since
that had been her election when she was offered
either a resignation
or being criminally charged. The trial judge concluded that –
‘…
the
probabilities are rather, in my view, that the plaintiff considered
that since Ms Khumalo had opted for being charged instead
of
resigning, she should be kept in the office until the police came to
collect her, and charged her, precisely as in the event
occurred.
For that result to have eventuated, as it did, it was necessary to
keep Ms Khumalo in the office.’
The
trial judge found Ms Khumalo to have been a credible witness
concerning the Thursday events; her evidence was truthful
and
her observations accurate and to the point. He found Mr
Landman, on the other hand, to have been
inclined
to be argumentative with the cross examiner and the trial judge got
the distinct impression that he tailored his evidence
that Ms Khumalo
was free to come and go as she pleased to suit his case. The
trial judge, therefore, concluded that Mr Landman
deprived Ms Khumalo
of her freedom of movement and that her detention was unlawful.
As to the element of intention, the trial
judge was satisfied that Ms
Khumalo was deliberately detained against her will, but he was not
satisfied that Mr Landman had knowledge
of wrongfulness, or
differently put, appreciated that he was not entitled to keep Ms
Khumalo in the office since he-
‘
[a]ppears to
have acted out of the conviction that in view of Ms Khumalo’s
confession of theft, and her election to be charged,
the inevitable
next step was for the police to come collect her; and that she was
obliged to wait for them, like it or not.’
[10]
On the question whether Ms Khumalo had in fact been kidnapped, the
trial judge concluded thus:
‘
In the
result, I find that although on the Thursday in question Ms Khumalo
was kept without her consent and against her will, the
crime of
kidnapping had not actually been committed. Since it is not
required for a successful invocation by a peace officer
of s40(1)(b)
of the CPA, that the offence was actually committed, the question is
whether the arresting police officer had reasonable
grounds for
suspecting that such a crime had been committed. This requires
only that the arresting officer should have formed
a suspicion that
must rest on reasonable grounds.’
(Footnote omitted)
[11]
The trial judge rejected the suggestion in the cross-examination of
W/O Monoge that he, together with Const Moabelo, ‘was
part of
an integrated conspiracy vindictively to get back at the plaintiff,
and blind to the actual events of the Thursday’.
He found that
‘[t]here is just not evidence to support such a conclusion,
neither direct nor inferentially’ and he,
therefore, accepted
‘that W/O Monoge had not conjoined Const Moabelo in an effort
to exact vengeance on the plaintiff’.
The trial judge
further found ‘that W/O Monoge was not subjectively motivated
by personal considerations’ – ‘of
sympathy or
vengeance’ – and that his suspicion that Mr Landman had
kidnapped Ms Khumalo was based on reasonable grounds.
In this
regard the trial judge concluded thus:
‘
[59] The
requirements of an unlawful and intentional deprivation of Ms
Khumalo’s freedom were evident to W/O Monoge from what
Ms
Khumalo told him. It is true that Ms Khumalo did not disclose
to W/O Monoge that she had admitted guilt to a charge of
pilfering,
but the unlawful deprivation of freedom is not legitimised by Ms
Khumalo’s admitted pilfering. As pointed
out, there was
no suggestion that the plaintiff relied on any authority to keep Ms
Khumalo in his office other than her own consent.
And that
version had been rejected.
[60] Nor would it have been a defence
to kidnapping that the Thursday morning police, ignoring in favour of
the plaintiff that W/O
Monoge did not know about them, had said that
they would come collect Ms Khumalo at some later, unspecified, time.
The mere
fact too that in the event the charge was not proceeded
with, does not detract from the reasonableness of the suspicion that
kidnapping
had in fact occurred.
[61] If objectively viewed all the
elements of the common law crime of kidnapping were satisfied,
barring
mens rea,
it is difficult to see on what basis W/O
Monoge could be said not have had a reasonable suspicion that the
crime had been committed.
After all, the absence of
mens rea
is not readily ascertainable and, given that the plaintiff’s
version of Ms Khumalo’s consent was rejected, it was not
unreasonable of W/O Monoge to have suspected that the crime could
have been committed.’
[12]
The trial judge further found that Mr Landman was not unlawfully
detained; he ‘in fact had access to a lawyer,
and bail
was in fact granted, all within a reasonable time’.
Furthermore he found that –
‘…
there
is no scope to conclude that the prosecution, as represented by those
two preparatory steps, was set in motion maliciously.
Certainly, once the plaintiff appeared in court, the prosecution
ceased.’
[13] This, as I have
mentioned at the outset of this judgment, is an appeal purely on
fact. There has been, in my judgment,
no misdirection of fact
by the trial judge and I am convinced that his findings and
conclusions are correct
(R v Dhlumayo
1948 (2) SA 677
(A)).
The trial judge carefully evaluated the evidence that was given
against the underlying probabilities. An analysis
of the
evidence as a whole, proper regard being had to the probabilities,
leads me to conclude that the findings of credibility
were similarly
well–founded (see
Stellenbosch Farmers’ Winery Group
Ltd and another v Martell et Cie and others
2003 (1) SA 11
(SCA)
para 5).
[14] The only
misdirection upon which Mr Poole (Mr Witz not having been available)
relied in argument before us is the contention
that the trial judge
misdirected himself in not finding that W/O Monoge together with
Const Moabelo were part of a conspiracy vindictively
to get back at
Ms Khumalo. I entirely agree with the trial judge that there is
simply not evidence to support any such a
conclusion, neither direct
nor inferentially. Inferences must be consistent with all the
proven facts. In any event,
the more natural or plausible
conclusion, which is consistent with the proven facts, is that both
Const Moabelo and W/O Monoge
in arresting and causing Mr Landman to
be detained, were motivated by their sense of duty.
[15]
So, why then did the trial judge grant Mr Landman leave to appeal to
this full court? Section 47 of the CPA obliges males
between
the ages 16 to 60, when called upon by any police official to do so,
to assist such police official in arresting or detaining
any person
so arrested. In his judgement dismissing Mr Landman’s
claims for damages due to unlawful arrest, detention,
and malicious
prosecution, the trial judge said:
‘
It needs to
be gotten out of the way that the plaintiff’s case is not that
the first two police officers with the tyre problems
had requested
the plaintiff to keep Ms Khumalo detained. Nor is it the
plaintiff’s case that they had deputised him
in some way to
detain Ms Khumalo on behalf of the police until they had their wheel
problems sorted. These scenarios were
not pleaded, were not
supported in evidence, and were expressly eschewed in argument.
The plaintiff’s case is that
Ms Khumalo remained there
voluntarily, and that she was free throughout the morning to leave at
any time.’
[16]
In the judgment granting Mr Landman leave to appeal to this court,
the trial judge said this:
‘
Mr Witz who
again appears for the plaintiff and the applicant in this morning’s
application submits that I misunderstood him
at the trial and that
indeed he did not eschew in argument the proposition that the
plaintiff’s case was not that he had
been deputised in some way
by the police to detain Ms Khumalo. In truth he said that it
was supported in evidence and he
did argue that in truth Mr Landman
(the plaintiff) had been asked by the police to keep Ms Khumalo
there, therefore impliedly against
her will, until they returned or
some other police officer returned to arrest her and to take her
away.
In other words the submission is that
it was not the plaintiff’s case that Ms Khumalo remained there
voluntarily. Indeed
it was the plaintiff’s case that she
was kept there by the plaintiff who was obliged to keep her there at
the request of
the police. I have to say that that is not how I
understood either the evidence or Mr Witz when argument was submitted
at
the end of the trial. But of course any one can make a
mistake, and although the basis has not been explained, I must have
made a mistake if counsel submits that I misunderstood him at the
trial. It seems to me therefore that on this first basis
another court may reasonably come to a different conclusion and that
I had misunderstood counsel in submissions made at the end
of the
trial.’
[17]
Indeed, it was not Mr Landman’s case that he had been called
upon by any police official to assist such police official
in
arresting or detaining Ms Khumalo or that any police official had
deputised him in some way to detain Ms Khumalo on behalf of
the
police nor was there any evidence to support any such case. In
his evidence in chief Mr Landman testified as follows:
‘
And did the
police arrive? --- The police arrived a while later. When they
got to site with a bakkie, they said first that
they have to go and
fix a tyre. We asked them then to explain to Petunia
[intervenes].
Is Petunia the lady in question? ---
The lady which we… caught stealing then. We asked them
then to explain to her
that they are going to fix the tyre and they
will come back for her. And then they spoke to her and she
agreed to it.
And then [intervenes].’
[18] The only suggestion
that Mr Landman was in some or other way requested or deputised by
the police to arrest and detain Ms Khumalo
was from counsel’s
mouth towards the end of his cross-examination of W/O Monoge when he
suggested to him that Ms Khumalo
‘was arrested for theft of
coffee and [Mr Landman] was waiting for the police, [Mr Landman] did
not kidnap her’.
There was, however, no factual
foundation for Mr Witz to have suggested that to W/O Monoge, who, in
any event, disagreed with counsel’s
suggestion. Not
surprisingly, at the appeal hearing before us, when I directed the
attention of counsel who acted for Mr
Landman to that passage in the
record, he disavowed any reliance on a version that Mr Landman had
arrested or detained Ms Khumalo
at the request of the police.
[19]
The trial judge was quite correct in his understanding that it was
not Mr Landman’s case that the first two police officers
with
the tyre problems had requested Mr Landman to keep Ms Khumalo
detained and that it was not his case that they had deputised
him in
some way to arrest and detain Ms Khumalo. Furthermore, it is
clear from the interaction between the bench and the
bar during Mr
Landman’s closing argument that his counsel indeed eschewed
such scenarios. It went like this:
‘
COURT
:
Can I ask you Mr Witz.
MR WITZ
:
Yes.
COURT
:
Does, did the first two
policemen empower Mr Landman to keep Ms Khumalo locked
up?
MR WITZ
:
It appears that that was so, they said…
(intervenes)
COURT
:
Under which section would they have done that of the
Criminal
Procedure Act … (intervenes
)
MR WITZ
:
They could have… (intervenes)
COURT
:
And do they have the power to do that?
MR WITZ
:
They actually do not, I think, they actually do, I think the police
do have the power in terms
of… (intervenes)
COURT
:
But… (Intervenes)
MR WITZ
:
I think it is of
section 50.
COURT
:
But there is no pleaded case here that Mr Landman kept Ms Khumalo
locked
up because the police gave him the power to do it.
MR WITZ
:
Yes correct and he denied that he locked her up, he said she was in
an… (intervenes)
COURT
:
But he did say that he would not allow her to go to the toilet on her
own…
(intervenes)
MR WITZ
:
Because she was a suspect.
COURT
:
Because he wanted to make sure that she would not run away.
MR WITZ
:
Yes correct, fairly… (intervenes)
COURT
:
Now that… (intervenes)
MR WITZ
:
She was a suspect in a theft charge.
COURT
:
But who is he to keep people locked up if he thinks they are a
suspect?
MR WITZ
:
Well My Lord that is the normal process that occurs…
(intervenes)
COURT
:
But does he have the power, does a member of the public have the
power…
(intervenes)
MR WITZ
:
Citizens arrest, they do.
COURT
:
Did he make a citizen’s arrest?
MR WITZ
:
No, he did not make any arrest.
COURT
:
Well then, does he have the power to lock a person up, let us assume
there
was a theft.
MR WITZ
:
Yes
COURT
:
Does he have the power to lock a person up?
MR WITZ
:
He has no power to lock anyone up My Lord, although in terms of your
powers as a citizen,
you can effect an arrest and assist the police
in arrest… (intervenes)
COURT
:
But we are not dealing with that here.
MR WITZ
:
But whether you can detain them or not My Lord, his evidence was that
she was there, there
is a button to go out, he left the office, there
were other members there, on the probabilities, it is a Thursday, it
is a management
office, it is a busy garage and there were no
complaints or nothing at all in that regard, so I think that would
really deal with
that My Lord, I mean she could have spoken to anyone
that was there, including the people that came to bring her the food
and said
I am being kept against my will or I am being locked up.’
[20]
Mr Landman’s case in respect of the events on the Thursday was
unambiguously that Ms Khumalo remained in the office voluntarily,
and
that she was free to leave at any time. Any suggestion that he
effected a citizen’s arrest or that he, at the request
of the
police, arrested and detained her, is contradictory to and
irreconcilable with that account.
[21]
In the result the following order is made:
The
appeal is dismissed with costs.
________________________________
P.A. MEYER
JUDGE OF THE HIGH
COURT
I
agree
________________________________
W.L.
WEPENER
JUDGE OF THE HIGH
COURT
I
agree
________________________________
K.L.M.
MANAMELA
ACTING JUDGE OF THE
HIGH COURT
Date
of hearing: 22 August 2018
Date
of judgment: 4 September 2018
Counsel
for the Appellant: Adv D Poole (heads of argument prepared by Adv M
Witz assisted by Adv D Poole)
Instructed
by: Witz, Callicchio, Isakow and Shapiro Attorneys Inc, Hydepark
Counsel
for Respondent: Adv MM Zondi
Instructed
by: State Attorney, Johannesburg