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[2018] ZAGPJHC 667
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Phiri v Minister of Police (38653/2015) [2018] ZAGPJHC 667 (26 November 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
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE NUMBER: 38653/2015
In
the matter between:
DAVID
PHIRI PLAINTIFF
And
THE
MINISTER OF
POLICE DEFENDANT
JUDGMENT
WINDELL
J:
INTRODUCTION
[1]
This is an action for damages based on the alleged unlawful arrest
and detention of the plaintiff.
[2]
Merits and quantum have been separated.
[3]
It is common cause that the plaintiff was arrested on Thursday 10
September 2015 at approximately 8 pm, on a charge of possession
of
suspected stolen property, without a warrant of arrest. He was
detained for a period of 3 ½ days before he was released
on
Monday 14 September 2015.
[4]
The relevant circumstances leading to his arrest are the following:
On 10 September 2015 Constable Mogoboya (“Mogoboya”)
received a complaint about a hijacked vehicle, a white Nissan bakkie
with registration number BD […] GP. He was informed
that the
vehicle was parked at […] C. Street Braamfischer Soweto. On
his arrival he found a white Nissan bakkie, bearing
the same
registration number. On closer investigation he noticed that the
chassis number had been grinded off and another number
had been
stamped on. He checked the engine number which appeared to be the
original and contacted radio control to confirm ownership
of the
vehicle and whether it had been reported as stolen. He was informed
that the vehicle had been reported as hijacked under
Kagiso CAS
number 393/01/2014. He also enquired about the registration number
and licence disk (BD […] GP) and was informed
that it belonged
to a person with a Nigerian surname and identification number.
There was a person present at the address
who informed him that the
vehicle belongs to David Phiri (“the plaintiff”). The
plaintiff was called and he arrived
a while later. On his arrival the
plaintiff was asked to hand over the keys of the vehicle and he was
arrested on a charge of possession
of stolen property. Mogoboya asked
the plaintiff about the vehicle and he was provided with a small
piece of paper with the particulars
of a person who allegedly sold
the vehicle to the plaintiff. It was a person by the name of Bongani
Mudaka (“Mudaka”)
who stays at […] Zone 8, with ID
number: […]. The plaintiff was also in possession of Mudaka’s
telephone number
and he was asked to phone him. Mudaka did not
answer. Mogoboya then asked the plaintiff to take them to Mudaka’s
house. The
plaintiff informed him that he will not be able to find
the house and as the address was incomplete (there was no street
name)
no further attempts were made by Mogoboya to trace Mudaka. It
is clear from the evidence produced by the defendant that the vehicle
found in the possession of the plaintiff was a stolen vehicle and
that it was hijacked during January 2014.
[5]
Mogoboya testified that he had a reasonable suspicion to arrest the
plaintiff based on the following grounds: (1) the chassis
number of
the vehicle had been tampered with; (2) the vehicle was reported as
stolen under Kagiso CAS number 393/01/2014 and; (3)
the registration
number BD […] GP belonged to another Nissan vehicle belonging
to a Nigerian national. He also testified
that he never suspected the
plaintiff of being involved in the hijacking or theft of the vehicle
but only suspected him of being
in possession of stolen property.
[6]
The plaintiff testified that on 10 September 2015 he was phoned by
his employee and informed that the police was looking for
him in
regards to his motor vehicle. He was requested to come to […]
C. Street where the vehicle was parked, and he immediately
obliged.
On his arrival he found Mogoboya who arrested him on a charge of
possession of stolen property. He told Mogoboya
that he had
documents for the vehicle and he phoned his wife to bring it to the
premises. She brought a file and handed over a
certificate of
registration and an affidavit from Mudaka confirming that the vehicle
was sold to him. He also asked Mogoboya to
take him to Mudaka’s
house as they had the address but Mogoboya refused. He was taken to
the police station where he was
detained until the Monday when he
appeared in court. At court the docket was
nolle prosequi
and
he was released.
SECTION
40(1)
[7]
Section 40(1) of the Criminal
Procedure Act 51 of 1977 (“CPA”) governs arrests without
a warrant.
The
defendant pleaded that the arrest was effected in terms of section
40(1)(b) of the CPA, which
reads as
follows:
“
A peace
officer may without a warrant
arrest any
person-
(a)……………………
(b)
whom he reasonably suspects of having
committed
an offence referred to in Schedule
1
,
other
than the offence of escaping from
lawful
custody;”
[8]
The plaintiff was arrested by Mogoboya who testified that he arrested
the plaintiff for possession of stolen property. Possession
of stolen
property is not a Schedule 1 offence. The arrest could therefore not
have been made in terms of section 40(1)(b) of the
CPA as the
circumstances giving rise to the suspicion must be such as would
ordinarily move a reasonable man to form the
suspicion that the
arrestee has committed a
Schedule
1 offence
(my emphasis).
[1]
Section
40(1)(e) which applies to the offences referred to in ss 36 and 37 of
the General Law Amendment Act 62 of 1955, does however
make provision
for an arrest without a warrant if any person:
“…
. is
found in possession of anything which the peace officer reasonably
suspects to be stolen property or property dishonestly obtained,
and
whom the peace officer reasonably suspects of having committed an
offence with respect to such thing.”
[9]
It is trite that an arrest or detention is deemed to be
prima
facie
unlawful. It is for the defendant to allege and prove the lawfulness
of the arrest. In essence the defendant has to plead justification
for its actions. (See
Minister
of Law and Order and Another v Dempsey
[2]
and Zealand v Minister of Justice and Constitutional Development
[3]
).
As
Rabie CJ explained in
Minister
of Law and Order and Others v Hurley and Another
[4]
:
“
'An
arrest constitutes an interference with the liberty of the individual
concerned, and it therefore seems fair and just to require
that the
person who arrested or caused the arrest of another person should
bear the onus of proving that his action was justified
in law.”
[10]
It was held in
Duncan
v Minister of Law and Order
[5]
,
that the jurisdictional facts for a s 40(1)
(b)
defence are that (i) the arrestor must be a peace officer; (ii) the
arrestor must entertain a suspicion; (iii) the suspicion must
be that
the suspect (the arrestee) committed an offence referred to in
Schedule 1; and (iv) the suspicion must rest on reasonable
grounds.
[11]
Applying the same principles, the jurisdictional requirements in
regard to s 40(1)(e) are therefore that:
(i)
the arrestor must be a peace officer; (ii) the arrestor must
entertain a suspicion; (iii) the suspicion must be that the property
had been stolen or acquired by dishonest means; (iv) that the
arrestee had committed an offence in connection with the property
and
that; (v) the suspicion was based on reasonable grounds.
The
question whether the suspicion of the peace officer effecting the
arrest is reasonable must be approached objectively. (See
Rex
v Van Heerden
[6]
).
Accordingly, the circumstances giving rise to the suspicion in terms
of s 40(1)(e) must be such as would ordinarily move a reasonable
person to form a suspicion that the property has been stolen/
acquired by dishonest means and
that
the arrestee has committed an offence in connection with the
property.
[12]
In
Duncan supra
, Van
Heerden JA found that
defending
a claim for unlawful arrest, the four jurisdictional facts set out in
s 40(1)
(b)
of the
Criminal Procedure Act 51 of 1977
must be pleaded.
On page 818H – J the learned judge stated the following:
“
If
the jurisdictional requirements are satisfied, the peace officer may
invoke the power conferred by the subsection, ie, he may
arrest the
suspect. In other words, he then has a discretion as to whether or
not to exercise that power (cf Holgate-Mohammed v
Duke
[1984] 1 All
ER 1054
(HL) at 1057). No doubt the discretion must be properly
exercised. But the grounds on which the exercise of such a discretion
can
be questioned are narrowly circumscribed.”
[13]
The defendant did not plead any jurisdictional requirements for the
arrest in terms of
section 40(1)(e)
and specifically pleaded that the
arrest was effected in terms of
section 40
(1)(b) of the CPA to
“
bring him before court and answer the
charges”.
It was only during argument
that counsel for the defendant submitted that the arrest was effected
pursuant to
section 40(1)(e).
The jurisdictional facts contained in
40(1)(b) and 40(1)(e) differ. It is not clear from the pleadings or
the arresting officer’s
testimony whether the suspicion was
reasonable and of such a nature that it would ordinarily move a
reasonable person to form a
suspicion
that
the arrestee committed an offence in connection with the property.
In fact the arresting officer testified that he did not
suspect the plaintiff of being involved in the theft or hijacking of
the
vehicle.
[14]
It is
only after the jurisdictional requirements have been satisfied that a
peace officer may invoke the power conferred by the
subsection to
arrest the suspect.
For the above
reasons I find that the defendant has not satisfied the
jurisdictional
requirements set out in
section 40(1)(e)
to effect the arrest. The
defendant has
failed to prove the
lawfulness of the arrest. The arrest and subsequent detention were
unlawful.
[15]
In the result the following order is made:
1.
Judgment is granted in favour of the plaintiff on
the merits with costs.
________________________________
L
WINDELL
JUDGE
OF THE HIGH COURT
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Attorney
for the plaintiffs: B.H Taula Attorneys.
Counsel
for the plaintiffs: Advocate E. Notshe.
Attorney
for the defendant: Office of the State Attorney, Johannesburg.
Counsel
for the defendant: Advocate L. Adams.
Date
matter heard: 22 November 2018 & 23 November 2018.
Judgment
date: 26 November 2018.
[1]
R v Van Heerden
1958
(3) SA 150
(T) at 152
.
[2]
1988 (3) SA 19
(A) at 38B-C.
[3]
2008 (2) SACR 1 (CC)
[4]
1986(3)
SA 568(A) at page 589 E-F.
[5]
1986
(2) SA 805(A)
[6]
1958(3) SA 150 (T)