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[2018] ZAECMHC 21
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Mbodla v Minister of Police (2859/2015) [2018] ZAECMHC 21 (8 May 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, MTHATHA)
CASE
NO.: 2859/2015
In
the matter between:
GOODMAN
GOLIDE
MBODLA
Plaintiff
and
MINISTER
OF
POLICE
Defendant
JUDGMENT
NTSEPE
AJ:
[1]
This is an action wherein the plaintiff sues for damages arising out
of an alleged wrongful and unlawful arrest and detention.
[2]
In his particulars of claim, the plaintiff has alleged that the
arrest was
"wrongful and unlawful in that the police members
did not have any reasonable suspicion and legal
justification".
[3]
The plaintiff has further alleged that the arrest and detention were
unlawful as the initial detention exceeded the statutory
period of 48
hours which further rendered the detention
"unjustified'.
[4]
These allegations have been denied by the defendant who has pleaded
as follows:
"3.2
The defendant denied that the arrest was wrongful or unlawful;
3.3
In amplification of such denial the defendant avers
that:-
3.4
The plaintiff was arrested on reasonable suspicion that he had
driving a
motor vehicle which caused an accident at or
near Madwaleni while under the influence of intoxicating
liquor.
3.5
The suspicion the members of the defendant had was also
confirmed by the plaintiff when he admitted having driven a motor
vehicle
while under the influence of intoxicating
liquor.
3.6
The suspicion that the members of the defendant had when
arresting the plaintiff has also confirmed by the laboratory blood
results
which indicated that the alcohol content in the plaintiff's
blood exceeded the minimum limit
;
and
3.7
Subsequent to the arrest, the plaintiff was lawfully detained
in terms of
Section 50
of the
Criminal Procedure Act, 51 of 1977
as
amended and was cause to appear within the prescribed
period.
3.8
For the above reasons, the allegations of the unlawfulness of
the arrest and the unlawfulness of the detention are denied by the
defendant.
"
[5]
It is common cause, as it is trite law that the defendant bears the
duty to adduce evidence first and the onus to prove, on
a balance of
probabilities, that the arrest and detention were lawful.
[6]
In an attempt to discharge the onus resting upon him, the defendant
called one witness; one Constable Ziyanda Yabo Sogiba (Cst
Sogiba/Sogiba) who
is
the arresting officer. She testified
that she has been a member of the South African Police Service (SAPS)
since 22 March 2010.
She was on duty on 15 May 2015 at Mqanduli
Community Service Centre/Police Station when the plaintiff arrived at
the police station.
[7]
According to Cst Sogiba the plaintiff had initially given a different
reason for his visit to the station, but later, when an
unidentified
male delivered the plaintiffs driver's licence to him, the plaintiff
then requested to report
an accident
that, according to the plaintiff, had occurred at or near Madwaleni
Location.
[8]
The relevant and material portions of Cst Sogiba's evidence can be
summarised as follows:
8.1
The plaintiff informed her that the truck he was driving had
overturned at or near Madwaleni.
8.2
She then noticed that the plaintiff
"could not stand still"
and she initially suspected that the plaintiff might have
sustained some injury in the accident.
8.3
At the time that she was interviewing the plaintiff they were at the
reception area of the police station and members of the public
began
mocking the plaintiff saying the plaintiff had essentially come to
request to be arrested.
8.4
In an attempt to save the plaintiff from the comments from the
members of the public Cst Sogiba moved with the plaintiff into
another
"private"
office.
8.5
It was in the private office that Cst Sogiba smelt alcohol on the
plaintiff
8.6
Sogiba noticed that the plaintiff's eyes were blood shot, his speech
was slurred and he
could not explain how it came about that the truck
he had been driving overturned and gave different versions of how the
accident
had occurred.
8.7
She obtained the details of the vehicle that had overturned from the
plaintiff and had requested
a member of the
SAPS
crime
prevention unit to verify whether there was indeed an overturned
truck at or near Madwaleni. The requested member confirmed
that there
was an overturned truck and also confirmed the full
description and registration number of the truck.
[9]
Cst Sogiba further testified that based on the above mentioned she
suspected that the plaintiff had driven a vehicle whilst
he was under
the influence of liquor. In line with that suspicion the plaintiff
was taken to Mthatha hospital for a blood sample
to be drawn.
Furthermore-
9.1
The blood sample was drawn and Sogiba and the plaintiff returned from
Mthatha hospital to the police station after 16:30 pm the
same day.
9.2
The plaintiff was interviewed by Cst Sogiba and a warning
statement was taken from the plaintiff. According to the warning
statement, the plaintiff stated
"Yes I admit the allegations
stated against me I was drunk but I drank liquor on the previous day.
"(sic)
9.3
The plaintiff remained in custody until 18 April 2018 when he was
released in Court at approximately 13:00 pm.
[10]
Under cross examination Mr Mdodana, who appeared for the plaintiff,
challenged the manner in which Cst Sogiba executed her
duties on the
day. The first criticism on Cst Sogiba by Mr Mdodana was that the
second page of the warning statement provides for
three options
listed as paragraphs 1-3, inter alias:
"1.
Remain silent
2.
Remain silent now and consult with a legal practitioners
3.
Make a statement which will be taken down."
[11]
Mr Mdodana highlighted that according to the selection made on the
warning statement, the plaintiff had opted to remain silent.
This
conclusion, so Mr Mdodana contended, was arrived at because there is
a tick next to the option
"remain silent".
Cst
Sogiba denied that the tick meant that the plaintiff had opted to
remain silent and testified that the tick could have been
on the
pro
forma
warning statement before the warning statement was
completed.
[12]
A further criticism of Cst Sogiba by Mr Mdodana was that the warning
statement does not indicate that the interview between
Sogiba and the
plaintiff had been conducted in Isixhosa. Sogiba's response was that
she had laboured under the belief that because
no interpreter was
used, she did not have to complete any further details relating to
which language was used.
[13]
Mr Mdodana also contended that Cst Sogiba's Al statement detailing
the arrest was not deposed to under oath. Sogiba's response
was that
she understood the oath to be an oath that a deponent makes to him or
herself and that she did not know that it had to
be taken before a
commissioner of oaths.
[14]
After Cst Sogiba's cross examination the defendant closed his case.
The plaintiff also closed his case without calling witnesses
or
leading any evidence.
[15]
On the pleadings and the evidence before Court, the following facts
were common cause between the parties:
15.1
that on or about 15 May 2015, the plaintiff had driven a vehicle
which overturned at or near Madwaleni;
15.2
that the plaintiff attended Mqanduli police station to rep01i the
accident;
15.3
that whilst at Mqanduli police station, the plaintiff was arrested
without a warrant for driving a vehicle under the influence
of liquor
at approximately 13:00 pm and was detained until he was released
at approximately 13:00 pm on 18 May 2018;
15.4
that the arrest was affected by Cst Sogiba who is a peace officer;
15.5
that the offence that the plaintiff was arrested for is an offence
that is listed in Schedule 1; and
15.6
that Cst Sogiba entertained a susp1c1on that the plaintiff had
committed an offence listed in the said Schedule 1.
[16]
Both Mr Luzipho, who appeared for the defendant, and Mr Mdodana
agreed that the crisp issue before the Comi was whether
Cst
Sogiba's suspicion that the plaintiff had committed an
offence listed m Schedule 1 rested on reasonable grounds.
[17]
The pleadings are the point of departure in considering the issues
for determination and having considered same coupled with
the
evidence before Court I am in agreement with both Counsel that
the only question for the
Court's
consideration is whether Cst Sogiba's suspicion rested on reasonable
grounds.
[18]
Section 40(1)(b)
of the
Criminal Procedure Act 51 of 1977
is the
relevant section that has been raised as a justification for the
plaintiff’s arrest.
section 40(1)(b)
reads as follows:
"40.
Arrest by peace officer without warrant
I.
A peace officer may without warrant arrest any person
-
(a)
(b)
whom he reasonably suspects of having committed an offence referred
to in schedule I, other than the offence of escaping from
lawful
custody."
[19]
The defence of
section 40(1)(b)
as well as the jurisdictional facts
contained therein have been considered extensively in a long line of
decided cases, one of
which is
Duncan v Minister of Law and Order
1984 (3) SA 460
(T) wherein it was held that jurisdictional facts
for the defence of section 40(l)(b) of are:
(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 1; and
(iv)
the suspicion must rest on reasonable grounds.
[20]
The
Duncan
decision was cited with approval by the Supreme
Court of Appeal in
Minister of Safety and Security v Sekhoto and
another
2011 (1) SACR 315 (SCA).
[21]
Furthermore, the Court in
Sekhoto
found that once the
jurisdictional facts for arrest whether in terms of Section 40(1) or
in terms of Section 40(3) are present then
the discretion arises. The
Court went on to say
"once the required jurisdictional facts
are present the discretion whether or not to arrest arises. The
officer it should be
emphasized is not obliged to
affect the arrest."
[22]
I must pause to emphasize that the exercise of the discretion and/or
the review thereof is not an issue before this Court.
The Court is
solely requested to consider the jurisdictional facts set out in
section 40(1)(b) and determine whether those jurisdictional
facts
existed in order for the police have to affect the arrest in terms of
section 40(1)(b).
[23]
It is trite law that the question as to whether the suspicion of the
person affecting the arrest is reasonable must be approached
objectively
(Minister of Safety and Security and Another v Swart
(2012) (2) SACR 226
(SCA) at [20]).
[24]
As stated in the matter of
Duncan,
the question of the
reasonableness of a suspicion cannot be determined
without first determining
the meaning
of suspicion. The Court in
Duncan
went on
and found that the word
"suspicion"
implies
an absence of certainty or adequate proof.
[25]
Therefore, a suspicion might be reasonable even if there is
insufficient evidence for a
prima facie
case against the
arrestee
(Minister of Safety and Security v
Jaftha
unreported, ECG CA3l0/2014, 1 March 2016 at [21]).
[26]
In
Minister of Safety and Security v Bothma and Another
2016
(1) SACR 632
(ECG) at [13] the court held that all that is required
is that the police officer must
"show that he was in
possession of information which, objectively viewed, would lead a
reasonable person in his position to
form the suspicion that the
arrestee had committed the relevant offence".
[27]
As stated above it was common cause that the arresting officer
entertained a suspicion, however, the challenge is whether or
not
such suspicion rested on reasonable grounds.
[28]
According to the evidence of Cst Sogiba the following facts led to
her formulating the suspicion that the plaintiff had committed
the
offence of driving a motor while under the influence of liquor,
inter
alias
:
28.1
he was unsteady on his feet;
28.2
his eyes were bloodshot and he smelled of alcohol;
28.3
his speech was slurred and he struggled to give a concise version of
how the collision had occurred; and
28.4
he admitted to having been under the influence of liquor although he
had stated that he had consumed the said liquor the day before.
[29]
Armed with that information the police officer had obtained the
details of the collision as well as the details of the vehicle
that
the plaintiff had allegedly been driving and she caused for members
of SAPS to verify that in fact there had been an accident
and those
facts were confirmed.
[30]
It was at that stage, so Cst Sogiba testified, that
she suspected that the said offence
had been
committed and thereafter took the plaintiff to the
hospital to have a blood sample taken.
[31]
It must be noted that it is in any event not in issue between the
parties that the plaintiff had been driving on the day in
question.
It is further not in issue between the parties that whilst the
plaintiff was driving the vehicle was involved in an accident.
It is
further not in dispute between the parties that the plaintiff had in
fact admitted to having been drunk and his defence seemingly
was
solely that he had consumed alcohol the day before.
[32]
The only challenges that the plaintiff presents are technical in
nature. He seeks to suggest that the Court ought to not accept
the
warning statement based on the
'discrepancies'
which have been
dealt with hereinabove, inter alias; that there was a selection by
the plaintiff to remain silent, that the warning
statement does not
record that the interview was conducted in IsiXhosa and that the
arresting officer's Al statement was not commissioned..
[33]
These issues, however, do not take the matter any further. At no
stage did counsel for the plaintiff deny that the plaintiff
had said
what was contained in the warning statement.
[34]
In fact, for the entirety of the cross-examination the plaintiffs
version was never put to Cst Sigoba. The only issues that
Mr Mdodana
had persisted with are stated above.
[35]
I must repeat what 1s stated above. These amount to nothing but
technicalities that are not substantiated and/or upon which
nothing
turns, particularly in light of the fact that the plaintiff failed to
testify and/or to lead evidence to rebut what was
testified to by Cst
Sigoba.
[36]
The effect of a litigant's failure to cross examine was considered by
the Constitutional Court in
President of the Republic of South
Africa v South African
Rugby
Football
Union
2000 (1) SA (CC).
[37]
In light of the pronouncement in
SA Rugby Union,
Mr Mdodana's
belated argument in closing, that Sogiba's evidence ought to be
rejected on the basis that the warning
statement in
itself as well as Sogiba's evidence are
contradictory in as far as the warning statement
records that the
plaintiff was drunk whereas the same statement records
that the plaintiff was
"in his sound and
sober senses"
cannot be accepted.
[38]
The difficulty with this argument is that these issues were not
raised in cross examination and this is further aggravated
by the
fact that the plaintiff did not give or lead evidence. In any event,
a close examination of the challenge raised by Mr Mdodana
reveals
that whilst there appears to be a contradiction
ex facie
the
warning statement, the contradiction in all the circumstances is not
material for the following reasons:
38.1
at no stage did the plaintiff challenge the allegation/s in the
warning statement that he was drunk; it would
have been expected of a
party to deal specifically with the allegation that he or she had
admitted to certain conduct. That was
not done by the plaintiff,
infact there was no challenge what so ever on the extent and content
of Sogiba's conversation with the
plaintiff; and
38.2
importantly, there is no challenge on behalf of the plaintiff that
the information at Sogiba's disposal could
and/or would not have been
reasonable grounds for suspecting that the plaintiff had committed
the offence of driving under the
influence of liquor.
[39]
The quality of Cst Sogiba's evidence cannot be faulted by the Court.
She was consistent when she testified about her interview
with the
plaintiff; she was clear about the content of her interview with the
plaintiff. She particularly made a favourable impression
on the court
with her temperament and her overall demeanour. Under cross
examination, counsel for the plaintiff, challenged her
competency and
stated that she had not done her job properly. Sogiba's response
remained objective, consistent and clear.
[40]
In the absence of evidence or even a challenge under cross
examination on Sogiba's evidence, the Comi accepts that the facts
that Cst Sigoba possessed at the time of the arrest, objectively
viewed, amounted to reasonable grounds for Sogiba to suspect that
the
plaintiff had committed the offence of driving under the influence of
liquor.
[41]
Put differently, I accept that any reasonable person who was in the
same position that Sigoba was in, armed with the same facts,
would
have arrived at the suspicion that the plaintiff had
driven the vehicle under the influence of liquor.
[42]
Furthermore, on the uncontested version of Sogiba that the process of
drawing the plaintiffs blood finalised after the expiry
of Court
hours on 15 May 2015 (which fell on a Friday), that she only returned
to the police station with the plaintiff at 16:30
pm on the said date
and that the plaintiff was taken to Court on Monday 18 April 2015
being the first court day after the arrest.
I therefore find that the
failure to bring the plaintiff before a lower court within 48 hours
was in terms of
section 50
(1) (d) of the
Criminal Procedure Act and
thus lawful.
[43]
In my view, the arrest and resulting detention of the plaintiff was
justified.
[44]
In the result, the plaintiffs claim is dismissed with costs.
______________________
N
Ntsepe
Acting
Judge of the High Court
Counsel
for the plaintiff:
Mr
Mdodana
Instructed
by
M Hlazo Att01neys
Attorney
for the defendant: Mr
Luzipho
Instructed
by
TN Luzipho Attorneys Incorporated
Date
Heard:
18-19 April 2018
Delivered
on:
08 May 2018