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[2018] ZAGPJHC 692
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Tshikila and Others v Minister of Police (16/06499) [2018] ZAGPJHC 692 (25 December 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO:
16/06499
In
the matter between:
PAKAMA
TSHIKILA
First
Plaintiff
ZODWA
MALINGA
Second
Plaintiff
FLOYD
MALINGA
Third
Plaintiff
IDA
MALINGA
Fourth
Plaintiff
CEKISO
GEMIKILE
Fifth
Plaintiff
and
THE
MINISTER OF
POLICE
First
Defendant
J
U D G M E N T
MAIER-FRAWLEY
AJ:
1.
In
this action the first to fifth plaintiffs claim damages from the
defendant arising from their unlawful arrest and detention by
members
of the South African Police, acting in the course and scope of their
employment with the defendant.
2.
The
plaintiffs were arrested without a warrant for crimes of assault and
kidnapping
[1]
on Friday, 2
October 2015 and detained at the Hillbrow police station until
Sunday, 4 October 2015 before being released on bail.
It is common
cause that charges were subsequently withdrawn by the State.
3.
The defendant admitted
the arrest without warrant and subsequent detention but pleaded that
the plaintiffs ‘were lawfully
arrested by members of the South
African Police Services, being peace officers, pursuant to the
provisions of
section 40(1)(b)
of the
Criminal Procedure Act, 51 of
1977
, as amended, (‘CPA’) upon receipt of a complaint of
common assault and kidnapping by one Sweetness N. Jita, in that
the
said peace officers reasonably suspected that the plaintiffs had
committed an offence referred to in Schedule 1 of Act 51 of
1977.’
The defendant averred that the plaintiffs were lawfully detained in
terms of section 50 of Act 51 of 1977, subsequent
to their lawful
arrest.
4.
The issue for
determination at trial was whether the arrest of the plaintiffs was
justified in terms of section 40(1)(b) of the
CPA, thus rendering the
arrest lawful. In this regard, the sole issue in dispute related to
whether or not the peace officer, in
effecting the arrest, had
reasonable grounds for suspecting that the plaintiffs had committed a
schedule 1 offence.
5.
In the event of a
finding that the plaintiffs were unlawfully arrested and detained,
the court was called upon to decide upon a
fair and reasonable award.
The plaintiffs claimed an amount of R2, 100 000.00 in the action,
made up as follows:
5.1.
General damages, past
and future medical
expenses for the first
plaintiff: R600 000.00
5.2.
Unlawful arrest and
detention
for all
plaintiffs:
R1, 000 000.00 (R200 000.00 each)
5.3.
Contumelia:
R500 000.00
TOTAL:
R2,100 000.00
6.
Accepting that it bore the onus
to justify the arrest and detention,
[2]
the defendant assumed the duty to begin at trial
7.
The defendant called one witness, Constable Makaleng, who was both
the investigating officer and the arresting officer in the
matter.
All five plaintiffs testified in support of their claim for wrongful
arrest and detention.
8.
Before considering whether the arrest of the plaintiffs was wrongful,
I shall briefly set out the events that gave rise to the
arrest as
they emerged from the evidence presented at trial.
9.
On 26 September 2015 an
incident occurred at a building known as Kelemberg (consisting of
residential apartments) situate at 40
Joel Street, Berea,
Johannesburg. The building has 36 units and houses approximately 200
people, some units being occupied by 5
to 10 people per unit. The
building had debt owing to the municipality in respect of municipal
services. It was discovered that
the body corporate was not paying
certain municipal fees, resulting, on occasion, in electrical
services being terminated at the
building.
10.
A meeting had been
arranged on that day between the various owners and tenants at the
building to resolve payment issues and to
determine which persons
were in arrears with their payments. Occupants were required to
provide proof of payment at the meeting.
11.
The
complainant, Ms. Sweetness Nosicelo Jita, together with Ms. Busisiwe
Mlambo and Khozi Nkosi (her ensemble) attended the meeting.
[3]
The occupants of 5 units failed to attend. The five plaintiffs in the
present action, being occupants of three of the five units
in
question, were amongst the persons who initially failed to show up at
the meeting. The complainant and her ensemble took it
upon themselves
to disconnect the electricity in those 5 units, to force the absent
occupants to come downstairs and provide proof
of payment. This duly
caused the respective plaintiffs to arrive downstairs and to confront
those responsible for disconnecting
their electricity. A commotion
ensued during the confrontation, with Ms Jita, Ms Mlambo and Mr Nkosi
each allegedly being assaulted
and locked into the basement against
their will and without their consent, with demands being made that
the electricity be switched
on under threat they would not leave the
building alive if that did not happen.
12.
Although the
complainant did not testify at the trial, her statement was referred
to in the evidence of Constable Makaleng during
the course of his
testimony. In her statement the complainant stated that she had
managed to persuade her assailants to allow
her to go to her vehicle
in order to fetch proof of payment of rent in respect of the unit
owned by her. They instructed that she
be escorted by the security
guard. Ms Jita seized upon the opportunity to phone the police for
help and waited for the police to
arrive before returning to the
building.
13.
It is common cause that
unknown members of the police arrived at the scene of the incident
thereafter. Pursuant to the intervention
of the police, the
electricity was allegedly switched back on and the gate of the
basement garage was unlocked.
Evidence of Constable
Makaleng
14.
According to Const.
Makaleng, Ms Jita (complainant) had laid a complaint of assault and
kidnapping (‘the complaint’)
on 27 September 2015, to
which end, she deposed to a sworn statement the same day. She also
underwent a medical examination which
confirmed that she sustained
bruises in the alleged assault. The docket was allocated to Const.
Makaleng subsequent to the lodging
of the complaint. Upon receipt of
the docket, he read the complainant’s statement and had sight
of the J88 medical report
as contained in Exhibit F at paginated page
17. In her statement, the complainant alleged that she had been
assaulted and kidnapped
by persons from the five units referred to
earlier, having being locked together with her ensemble in the garage
basement of the
building under threat that no-one would leave the
building alive if the electricity was not reinstated.
15.
He
conducted further investigations, which included conducting an
interview with the complainant and obtaining statements from other
witnesses. He testified that he ‘needed to get a full story
from each person to establish that assault and kidnapping’
in
fact occurred. He verified the facts through interviews conducted
with other witnesses. He obtained sworn statements from Ms.
Mlambo
and Mr. Nkosi
[4]
wherein they
inter
alia,
alleged
that they had themselves been assaulted and locked in the basement
against their will.
16.
Const. Makaleng also
obtained a statement from an independent witness, namely, Keith
Gwaze, a security guard at the building. As
is apparent from his
statement, he indicated that the third plaintiff had taken the keys
to the gate of the basement garage from
him. He also confirmed that
the complainant, Ms Mlambo and Mr Nkosi had been locked inside the
basement garage. Mr. Gwaze confirmed
that the meeting had taken place
in the building basement. Occupants of unit numbers 401, 901, 701,
403 and 804 did not initially
attend the meeting. When the
electricity was switched off, the said occupants came downstairs,
making a lot of noise. He was able
to see the third and fifth
plaintiffs assaulting the complainant and her ensemble.
17.
Const.
Makaleng testified that the complainant was not able to identity all
of the suspects involved in the incident of assault
and kidnapping by
name. She identified some by name. She could only identify others by
pointing them out to him.
[5]
18.
During his
evidence-in-chief, Const. Makaleng stated that he investigated the
complaint first in order to establish the facts. On
the strength of
interviews conducted and statements obtained, he stated that ‘I
had a reasonable belief that crimes of assault
and kidnapping had
occurred.’ He testified that when more than one suspect is
involved, each person has a role to play. The
evidence pointed to the
fact that a group of suspects were working together in order to
accomplish their goal. He stated, for example,
that one person may
lock the gate whilst the rest may look on and associate themselves
with that act.
19.
A
week later Const. Makaleng arrested the plaintiffs. The complainant
was present during the arrest and accompanied the arresting
officer
from unit to unit in pointing out the arrestees as the persons who
were involved in the incident forming the basis of her
complaint.
Before making the arrest, Const. Makaleng identified himself as a
police officer and informed each individual of the
allegations
against them. He stated that he tried to speak to each person so
identified in order to obtain their response. The
plaintiffs were
upset and refused to respond positively towards him. They refused to
give their version. Instead, they informed
him that as a police
officer, he should stick to his mandate
[6]
and not interfere in housing issues. Upon arrest, the suspects were
informed of their constitutional rights. The complainant was
threatened by the fifth plaintiff in the presence of Const. Makaleng
at the time of his arrest.
20.
It
is common cause that 8 people
[7]
were arrested at Kelemberg building on Friday 2 October 2015. The
suspects were taken to the Hillbrow Police Station where they
were
formally processed through the system and where they,
inter
alia
,
received a written notice informing them of their constitutional
rights.
21.
The suspects were
detained in the holding cells as from Friday evening until Sunday
evening on 4 October 2015. Const. Makaleng testified
that bail was
granted by a standby prosecutor on Sunday evening, whereafter the
plaintiffs were released and warned to appear in
court. According to
Makaleng, the complainant deposed to a withdrawal statement sometime
thereafter, which subsequently led to
the withdrawal by the State of
the case against the plaintiffs.
22.
During
cross-examination, Const. Makaleng admitted that common assault was
not a schedule 1 offence but added that two separate
offences were
committed in the case at hand, namely, common assault and kidnapping,
with kidnapping falling under Schedule 1.
23.
It was put to Const.
Makaleng that he arrested the plaintiffs in compliance with an
instruction from his captain to arrest the suspects
and that he did
not exercise an independent discretion in this regard. Const.
Makaleng disputed this, stating that he had investigated
the
complaint independently and if he did not believe that he could
arrest, then he would not have made an arrest.
Evidence of the
plaintiffs
24.
The plaintiffs each
testified at the trial. It is not necessary to summarise the evidence
of each individual plaintiff. Suffice
it to say that all the
plaintiffs disputed having assaulted the complainant or her ensemble
or that such persons had been locked
inside the basement garage. Each
plaintiff to some extent or another sought to distance him or herself
from the commission of any
offence on the day in question or from a
display of aggression towards the complainant (who was referred to as
the building manager
in their evidence) or Mr. Nkosi (who was unknown
to the Plaintiffs) or Ms. Mlambo (who held the keys to the
electricity box located
in the basement of the building and who was
known to the plaintiffs).
25.
A common thread in the
evidence of the plaintiffs is that they either personally questioned
Ms. Mlambo or observed others questioning
Ms. Mlambo about why their
electricity had been disconnected on 26 September 2015. According to
the plaintiffs, these discussions
took place in the foyer of the
building. Save for the first plaintiff, none of the other plaintiff’s
personally interacted
with the complainant on the day of the
incident. The plaintiffs admitted however that they were all angry at
the complainants for
switching off their electricity.
26.
All the plaintiffs were
singularly unable to answer why the police were called to the scene
if nothing adverse had happened that
day.
27.
All the plaintiffs
confirmed that the police holding cells were in a despicably dirty
condition with dysfunctional ablution facilities,
unwashed basin and
toilet, and that only hard and dirty blankets were provided to them.
They were however granted access to visitors
and obtained legal
representation on Sunday the 4
th
September 2015 at the behest of the first plaintiff. The first
plaintiff was unfortunate in that her menstruation cycle started
after she was placed under detention, this whilst she had no sanitary
towels with her. She asked the police for assistance, which
was
allegedly not provided.
Reasonable suspicion
28.
In terms of section
40(1)(b) of the CPA, a peace officer may without a warrant arrest any
person whom he reasonably suspects to
have committed a Schedule 1
offence, other than the offence of escaping from lawful custody.
29.
It
is clear that on the defendant’s version, the plaintiffs were
arrested and detained on charges of common assault
and
kidnapping. Whilst the offence of kidnapping is listed in Schedule 1,
common assault as such, is not.
[8]
The arresting officer therefor ordinarily enjoyed no power to arrest
suspects whom he reasonably suspected of having committed
the offence
of common assault, without a warrant. He did however enjoy that power
in relation to the offence of kidnapping.
30.
In
Minister
of Safety and Security v Van Niekerk
,
[9]
the Constitutional Court reinforced the notion that the lawfulness of
an arrest is highly fact-specific, meaning that the lawfulness
of an
arrest will be closely connected to the facts of the situation.
31.
As
was held in
Duncan
v Minister of Law and order,
[10]
the
jurisdictional facts for a section 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.
32.
I was informed at the
outset of the trial that the primary issue in dispute concerned item
(iv), namely, whether the peace officer
had reasonable grounds for
arrest.
33.
What
the section requires is that the police officer must have had a
reasonable suspicion and in that regard the test is objective.
[11]
On an objective approach the police officer must show that he had
reasonable grounds for his suspicion. See:
Duncan
v Minister of Law and Order
1986
(2) SA 805
(A) at p. 818.
34.
In
Mabona
and Another v Minister of Law and Order and Others
1988 (2) SA 654
(SE) at 658E-H, Jones J, in dealing with the
requirement of a reasonable suspicion, said the following:
“
The test of
whether a suspicion is reasonably entertained within the meaning of s
40 (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, i.e., 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.”
(own
emphasis)
35.
I
agree with the submission made by the defendant’s counsel that
Const. Makaleng did not just go and arrest the plaintiffs.
He first
conducted his own investigation. He did not accept the information at
his disposal
[12]
blithely or
without due consideration, but checked it, by interviewing two
further witnesses and also the complainant. Even then,
he proceeded
cautiously. He went to the length of tracing an independent witness
(security guard) and obtained a statement from
him. Only then did he
consider that the information at his disposal allowed him to
entertain a suspicion that would justify an
arrest, at least in
relation to the offence of kidnapping.
36.
Although Const.
Makaleng did not specifically attempt to interview the various
plaintiffs during the course of his preliminary investigations,
he
did endeavour to obtain their version of events before formally
arresting them. As later transpired, the plaintiffs refused
to
co-operate with him or to provide their version.
37.
The plaintiffs’
counsel suggested that Const. Makaleng was motivated by an erroneous
belief that he could arrest the plaintiffs
without warrant for the
offence of common assault, which, so the argument developed, prompted
him to effect the arrest primarily,
if not singularly, based on a
suspicion that an offence of common assault had been committed, no
reasonable grounds having existed
for the arrest on account of any
kidnapping of the complainant. I do not agree with the submission for
reasons that follow.
38.
Const.
Makaleng testified that he was well aware of his powers under section
40(1)(b) – he knew he could not arrest for common
assault
without a warrant – but he had a kidnapping charge too, which
he investigated. The information he obtained was that
police officers
were called to the scene of the incident to rescue ‘the
complainants’ (referring to the complainant
and her ensemble).
He had evidence that people were locked in a basement; the
complainant had feared for her life in circumstances
where she (and
her ensemble) had been assaulted and had been warned that no-one was
going to leave, at least not alive;
[13]
He considered that this amounted to her having being held against her
will, which pointed to kidnapping. All four witnesses confirmed
that
the lock-up occurred.
39.
Const.
Makaleng considered that the group of persons (being the occupants of
the five units whose electricity had been switched
off, of which the
plaintiffs formed part) had, on the evidence at his disposal,
associated themselves with what occurred at the
scene of the
incident. In this regard, I agree with the submission by the
defendant’s counsel that the actions of one in
the group could
be attributed to the others under the doctrine of common purpose and
in so far as they associated themselves with
what had been done, then
they could all be charged under that doctrine. The evidence at Const.
Makaleng’s disposal showed
that persons in the group were all
angry at those responsible for disconnecting their electricity; they
went downstairs with the
goal of confronting the responsible persons
about switching off the electricity; they were intent on forcing
those responsible
to switch the electricity back on; those that did
not themselves physically participate in the assaults or the locking
of the gate
in order to prevent the complainant and her ensemble from
leaving, must have been aware of the commission thereof, since they
were
alleged to have been present at the scene of the altercation;
they did not disassociate themselves with the forced lock-up, which
occurred under threat of further violence, but performed their own
act of association therewith by acquiescing therein and allowing
it
to continue. In my view, on those facts, invocation of the doctrine
of common purpose
[14]
would
have been justified.
40.
Const.
Makaleng had a discretion to arrest persons whom he reasonably
suspected of having committed the crime of kidnapping. He
was mindful
of the fact that he was not
obliged
to arrest the suspects implicated, but he had information that
supported his belief that Ms Mlambo and Ms Jita were under threat,
based on a report obtained from Ms. Mlambo and his witnessing of the
fifth plaintiff having threatened the complainant in his presence
before he actually arrested him. He therefore exercised the
discretion afforded to him to arrest all the suspects who were
implicated
in the alleged commission of the crimes, after they were
pointed out by the complainant.
[15]
41.
On the facts of the
matter and in all the circumstances discussed above, I am unable to
conclude that Const. Makaleng acted arbitrarily
in exercising his
discretion or that he did not have reasonable grounds on which to
entertain the suspicion that the plaintiffs
had been involved in the
commission of a schedule 1 offence.
42.
I accordingly find that
the defendant has succeeded in justifying the lawfulness of the
arrest of the plaintiffs in relation to
the offence of kidnapping.
Although this was not in issue at the trial, the evidence in any
event established that the detention
of the plaintiffs’ was
justified.
43.
The general rule is
that costs follow the result. I see no reason to depart therefrom.
44.
In the circumstances, I
make the following order:
ORDER
The Plaintiffs’
claims are dismissed with costs.
________________
MAIER-FRAWLEY
AJ
Date
of hearing: 21-23 November 2018
Judgment
delivered: 20 December 2018
APPEARANCES:
Counsel
for Plaintiffs: Adv
.
M. Courtenay
Attorneys
for Plaintiffs: Dudula Incorporated
Counsel
for Defendant: Adv. NM Mtsweni
Attorneys
for Defendant: State Attorney
[1]
Kidnapping consists in unlawfully and intentionally depriving a
person of his or her freedom of movement. The elements of the
crime
are the following: (a) the
deprivation
of (b) a person’s
freedom of movement
which takes place (c)
unlawfully
and (d)
intentionally.
[2]
This is in keeping with that articulated by the then Appellate
Division in
Minister of Law
and order v Hurley
[1986] ZASCA 53
;
[1986]
2 ALL SA 428
(A) at 442 (4) where the following was said
:
‘An arrest constitutes an interference with the liberty of the
individual concerned, and it therefore seems to be 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.’
[3]
Both the
complainant and Ms Mlambo own units in the building. Ms Mlambo
resides in one of the units whilst Mr. Nkosi, who is not
resident at
the building, merely accompanied the complainant to the meeting.
[4]
As is
apparent from her statement, Ms Nkosi confirmed that she, Nkosi and
the complainant were each assaulted on the day in question
and that
she, Nkosi and the complainant were all locked inside the basement
against their will. Mr Nkosi stated what had happened
to him. He
stated that he had been assaulted and that he was locked inside the
basement until such time as he was rescued by
the police.
[5]
As is apparent from the complainant’s statement, she
identified certain suspects by name, including among others
Gemikile
Cekiso
(fifth plaintiff)
[unit no. 401];
Ida Malinga
(fourth plaintiff) and
Floyd
Malinga
(third plaintiff)
[unit 901]; and
Tshikila
Pakama
( first plaintiff)
[unit 804].
[6]
To enforce and uphold the law and preserve public order.
[7]
The five plaintiffs in the present action were amongst the 8
arrestees.
[8]
The offence of ‘
assault,
when a dangerous wound is inflicted
’
is listed in Schedule 1.
[9]
2008(1) SACR 56 (CC at paras [17] & [20].
[10]
1986 (2) SA 805
(A) at 818G-H.
[11]
See:
Olivier v Minister of
Safety and Security and another
2008
(2) SACR 387 (W)
[12]
The information at his disposal at that stage was the complainant’s
sworn statement and the medical report depicting her
injuries.
[13]
the
evidence of the complainant in her sworn statement was to the effect
that she was not allowed to leave the basement garage
freely of her
own accord – the group made the security guard accompany
her.
[14]
The
doctrine of common purpose and its requirements are discussed in
S
v Mgedezi
1989 (1) SA 687
(A) at 705I-706C,. The said doctrine was ratified in
the constitutional era by Justice Moseneke in
Thebus
and Another v S
[2003] ZACC 12
;
2003 (6) SA 505
(CC) at paras 65 & 68
.
[15]
Const. Makaleng further stated that in his experience,
people
who live in the city and surrounds often come and go and rent out
their apartments, making it difficult to trace them thereafter.