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[2018] ZALMPPHC 39
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Mthimkulu v Minister of Police (2424/2017) [2018] ZALMPPHC 39 (2 August 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
CASE
NO: 2424/2017
In
the matter between:
MANYORO
ISAIAL
MTHIMKULU
PLAINTIFF
and
MINISTER
OF
POLICE
DEFENDANT
JUDGMENT
M.G
PHATUDI J:
1.
The plaintiff in this matter instituted a
law suit against the Defendant for damages arising out of alleged
unlawful arrest and
assault. In its particulars of claim, claims 1
and 2 refer to alleged unlawful arrest on 31 March 2016 and 11
October 2016, respectively.
Claim 3, that of assault, allegedly
occurred on 11 October 2016.
2.
All the three claims are defended.
3.
At the commencement of the trial on 06 June
2018, the parties recorded and agreed, preliminarily, that five (5)
sets of bundles
of documents shall constitute the Court bundle for
purposes of trial. They were identified as follows:-
3.1.
Bundle “A” - Pleading
Bundle;
3.2.
Bundle “B” - Notices
Bundle;
3.3.
Bundle “C” - Documents Bundle;
3.4.
Bundle “D” - Pre-trial
minutes dated 05 June 2018, and
3.5.
Bundle “E” - Photo Album.
4.
It was further agreed that as recorded in
the pre-trial Minutes, the merits be separated from quantum. The
trial would therefore
be confined to the determination of the merits
only.
5.
It
was common cause that because of the Nature of the claims for alleged
unlawful arrest, the defendant carried the burden to prove
the
lawfulness of the arrest in terms of
Section 40
(1) (b) of the
Criminal Procedure Act 1977
[1]
)
THE
DEFENDANT’S CASE
6.
The Defendant called Godfrey Thakadu
Rasebotsa to testify on its behalf. His evidence in chief can be
summarized as follows:-
6.1.
On 30 March 2016, he laid a charge of
robbery which was coupled with assault against one Isaiah Mthimkulu,
the plaintiff in this
matter. He alleged that the incident happened
on the night of 24 March 2016, while on his way home from a certain
bar-lounge in
his village in Botlokwa.
6.2.
His two assailants tripped him, he fell to
the ground, was assaulted, searched and robbed of his wallet, his
Public Driver’s
Permit, bank cards and some R800.00 found in
his wallet. He identified “Mothomogolo” (“Plaintiff)
as one of the
men who attacked him, but could not properly identify
the other unknown man.
6.3.
He said he could identify the plaintiff
through lights of a motor vehicle that emerged at the scene during
the robbery. Apart from
that, he thoroughly knew the plaintiff as he
is his co – villager in the area. Furthermore, the witness also
pointed out
at the plaintiff who was in court attendance during the
hearing.
6.4.
Prior to opening a case docket for the
robbery on 25 March 2016, the witness phoned the plaintiff and
demanded the return of his
assets he was robbed of. Seeing that the
plaintiff reneged on his promise to see him that evening, the witness
proceeded to lay
a charge against him on 30 March 2016 for assault
and robbery.
6.5.
Following the complaint he made, a case
docket was opened as a result of which the plaintiff was arrested on
31 March 2016, by one
Seargent Mailula. (“Mailula’).
6.6.
The witness directed Mailula and one
Constable Mashakeng (“Mashakeng”) to the plaintiff’s
informal hair salon,
where he pointed him out as one of his robbers.
He was there and then arrested.
6.7.
He also intimated that had it not been that
he, the witness, did not preferr charges against the plaintiff, he
would not have been
arrested.
7.
Cross-examined,
he confirmed that he made a statement to the police when he opened
the case docket against the plaintiff. The relevant
sworn
statement
[2]
formed the nub of
his complaint to the police.
8.
Next to testify for the Defendant was
Warrant officer Abednico Mailula. In brief he said:-
8.1.
He is a police officer with 30 years
experience as such, and that on 30 March 2016, he was attached to
Botlokwa police station.
He was an investigating officer and
commander allocating case dockets.
8.2.
When he reported on duty on 31 March 2016,
he found a case docket already opened up by one Rasebotsa who was
complainant in the
case.
8.3.
On perusal, he noted that the complaint
raised was one of assault and robbery. He and Mashakeng went out to
trace the complainant,
Rasebotsa.
Rasebotsa
directed the 2 police officers to the suspect, Isaiah Mthimkulu, the
plaintiff herein, where he was found in his informal
hair salon, a
shack structure from where he conducted his business. The complainant
pointed out the plaintiff to them.
8.4.
Having identified themselves as police
officials and the purpose of their visit there, which was to arrest
him and reasons therefor,
he first explained to plaintiff his
constitutional rights regarding persons placed under arrest. He
explained to him in detail,
the rights notoriously known as
Section
35
(constitution Act) rights.
8.5.
He was then taken to the police station
where Mashakeng obtained a statement from him, and recorded his
details in the cell register,
where he also allegedly explained to
the plaintiff his notice rights in terms of
Section 35
referred to.
8.6.
He
also stated that having read the case docket
[3]
he formed an “impression” that the complaint was robbery
and assault and initiated further investigation, then an arrest
followed.
8.7.
Cross-
examined, Mailula alluded to a sworn statement he made detailing how
he as investigating officer came to arrest the plaintiff
[4]
9.
It was at this stage of the proceedings
that the defendant closed its case in respect of Claim 1 with no
further witness to call.
THE
PLAINTIFF’S CASE
10.
The Plaintiff also testified pursuant to
his arrest on 31 March 2016.He stated that he was then at his hair
salon attending to customers
when 2 police officers arrived in the
company of one Rasebotsa. He said the police officers asked him if he
knew Rasebotsa and
he confirmed that he knew him. He then said that
the police officers informed him of their intention to arrest him for
alleged
robbery. His business was searched.
-
He was driven by police to his homestead
where again a search was conducted.
-
While at his homestead, the police informed
his mother that he was arrested for alleged robbery.
-
He
was subsequently taken to the police station where he was formally
charged, and furnished with a certain document called “notice
of rights”
[5]
11.
The witness testified further that if was
indeed Rasebotsa who laid assault and robbery charges against him for
the incident of
24 March 2016.
12.
He, however, raised an alibi as a denial of
the allegations against him. Be that as it may, it is common cause
that the charges
against him had since been withdrawn as part of an
amicable settlement of their dispute with Rasebotsa.
13.
Testifying with reference to Claims 2 and
3, the plaintiff went on to say that he was arrested by a certain
police officer while
at his homestead on 11 October 2016. This was
when he was in the company of his girlfriend who we later gather was
one Ms Rebecca
Monyela (“Monyela”).
14.
On arrival, one of the police officers
displayed to him a copy of the Protection Order issued by the
local Magistrate’s
Court, which he was asked to sign as an
acknowledgement of receipt thereof.
15.
As he was not shown where to affix his
signature on the document, he refused to sign it. For that, he was
assaulted, one of them
hand cuffed his left hand and threatened to be
killed if he resisted to sign. He was in the process allegedly
sprayed with a pepper
spray and finally subdued, and fell down on the
ground.
16.
While he fell down, the police men kicked
him with booted feet and assaulted him with fists. In the process,
one of them hit him
with a pistol on the left of his face and as a
result sustained injuries.
17.
He asked his girlfriend (Monyela) to take
pictures depicting his injured face. I will revert to this aspect in
due course.
18.
He was then taken to the police station and
kept in a holding cell, and later driven back home.
19.
After a while the police officers returned
to him with a Protection Order, of which he was again asked to sign,
which he did.
20.
The witness later proceeded to lay a charge
of assault against the men who assaulted him. He was also furnished
with a J88 Form.
21.
Although he did not know by name the police
man who assaulted him he, however, managed to point him out in court
for identification
purposes. The police officer was later called as a
defence witness. His introduction into court prior to his testimony
was with
the defence’s consent.
22.
The
J88 medico-legal examination report
[6]
)
was also handed up as part of the record of the proceedings. I
propose to re-examine the evidential value of this document in
the
course of this judgment.
23.
Furthermore, “Bundle”E”,
being a photo album (photos 20 – 22) were also handed up as an
exhibit evincing
the nature and extent of the injuries sustained by
the plaintiff due to alleged assault. Once again, the photo album was
submitted
with the defence’s consent.
24.
Monyela was called to testify for the
plaintiff. She confirmed that on 11 October 2016 she and plaintiff
were together at his homestead.
Police arrived there with a
Protection Order meant to be delivered to him.
25.
Her evidence in the main was to corroborate
the plaintiff’s evidence relating to the assault. She also
confirmed as being
the photographer of Bundle “E”, photo
album.
26.
It was at this stage that the plaintiff’s
case on claims 2 and 3 was closed.
THE
DEFENCE’S CASE – Claims 2 and 3
The defence’s case
in respect of Claims 2 and 3, respectively was put as follows:-
RONALD
MPHAPHULI’S EVIDENCE
27.
He said in – chief that:
27.1.
He is a police constable attached to
Botlokwa police station, in crime prevention unit.
27.2.
He denied ever delivering a protection
order nor assaulting the plaintiff as alleged. He also denied
arresting him either.
27.3.
He was subpoenaed to attend court as a
witness from the 04
th
to 11
th
June 2018, and that was when according to him the plaintiff and his
witness might have seen or observed him as he waited for his
turn to
testify in court.
THE
ISSUES:
28.
The questions that require determination
are two-pronged:
(a)
. whether the alleged arrests were unlawful
within the purview of Section 40 (1) (b) of the Act, and
(b)
. whether the plaintiff was assaulted by
one of the police officers on 11 October 2016 as alleged.
COMMON
CAUSE FACTS:
29.
It is common cause that the plaintiff was
arrested by the police officers on 31 March 2016 without a warrant of
arrest in terms
of Section 40 (1) (b) of the Act. The arrest,
according to the evidence presented by the arresting police officers,
was allegedly
for an offence of assault and robbery against the
plaintiff, the latter offence of which falls within the ambit of
Schedule 1 offences.
30.
The complainant in Claim 1, (Rasebotsa) was
he who identified and pointed out the plaintiff to the police
officers before his arrest.
31.
The defendant, as it is trite law, had the
onus thrust on it to prove the lawfulness of the arrest in respect of
Claim I.
32.
Furthermore, as to Claims II and III,
respectively, the plaintiff, however, had the onus placed on him to
establish his claims on
a balance of probabilities.
33.
It is furthermore not in dispute that
Rasebotsa was he who in fact set the law in motion when he laid
charges of assault and common
robbery on 30 March 2016 against the
plaintiff. A case docket was opened.
34.
Upon reporting on duty at Botlokwa Police
Station on 31 March 2016, Mailula on perusal of the information
placed to the police in
the docket by Rasebotsa, made further
inquiries from him, and he ultimately directed the two men, (Mailula
and Mashakeng, the police)
to the plaintiff’s hair salon. The
plaintiff also confirmed this arrest on the same day on 31 March
2016. This is common
cause between the parties.
35.
It is furthermore also common cause that
Mailula and Mashakeng were at the time of the plaintiff’s
arrest on 31 March 2016,
police officers as defined in Section 40 (1)
(b) of the Act, and that in effecting the arrests, did so within the
scope of their
employment and duties as police officers,
36.
Counsel for the plaintiff conceded in his
argument (heads of argument) that the plaintiff was detained from 31
March 2016 to 01
April 2016, whereafter he was admitted to bail by
the district Magistrate’s Court.
LEGAL
FRAMEWORK
37.
It is axiomatic that Section 40 (1) (b) of
Act 51 of 1977 explicitly sets out the jurisdictional factors that
must be present before
a police officer who arrests any person whom
he/she reasonably suspects of having committed an offence delineated
in Schedule 1
of the Act, may effect an arrest without a warrant of
arrest. These jurisdictional pre-requisites that might justify an
arrest
in accordance with the section sound as follows:-
37.1.
The arrestor must be a peace officer;
37.2.
The arrestor must entertain a suspicion;
37.3.
The suspicion must be that the suspect (the
arrestee) committed an offence referred to in Schedule 1, and
37.4.
The suspicion must rest on reasonable
grounds –
See
Duncan
v Minister of Law and Order
[7]
For
purposes of the inquiry before me, the reasonableness or otherwise of
the suspicion must, in my view, be that the arrestee committed
the
alleged robbery referred to in Schedule 1 of the Act.
38.
Accordingly,
when police have arrested and detained a person and once the arrest
and detention are admitted, as in the present instance,
the onus of
proving lawfulness of the arrest shifts on the state.
[8]
Such arrest, must be justified by the defendant. This is precisely
because “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”” .
[9]
39.
In the instant matter, the only issue
between the parties in relation to the suit concerned is whether the
peace officer (Mailula)
had reasonable grounds for his suspicion
which culminated in the plaintiff’s arrest in relation to Claim
I.
40.
In this particular instance, Mailula’s
evidence gave a graphic account of how and the circumstances under
which, having perused
the police docket, and having conducted
preliminary investigation in the complaint brought to his attention,
proceeded to arrest
the plaintiff. That, having also had occasion to
peruse thoroughly the police case docket, formed “impression”
that a robbery had been committed by the plaintiff against
Rasebotsa, the complaint before the case was later withdrawn by
means
of “ADR “between the parties. (Alternative Disputes
Resolution) Based on this suspicion, Mailula went on to effect
the
arrest.
41.
Counsel
for the plaintiff submitted, for purposes of Claim I, that Mailula
should have went on to investigate the plaintiff’s
alleged
alibi before affecting arrest since he denied any involvement in the
alleged robbery. It is not surprising that the learned
counsel
adopted this line of reasoning. Counsel for the plaintiff apparently
based his contention on the overturned judgment and
approach adopted
by Bertelsmann J in
Louw
and Another V Minister of Safety and Security and Others
2006 (2) SACR 178 (T) at 186 (a) – c and 187 (e). The
Louw’s
case
been rejected in the instructive case of
Minister
of Safety and Security V Sekhoto
,
[10]
where Harms DP (as he
then was) stated at paragraph 22 that:-
“
[22]
With
all due respect to the different High Court judgments referred to,
applying all the interpretational skills at my disposal
and taking
words of Langa CJ in Hyundai seriously, I am unable to find anything
in the provision which leads to the conclusion
that there is,
somewhere in the words, a hidden fifth jurisdictional fact. And
because legislation overrides the common law, one
cannot change the
meaning of a statute by developing the common law.”
42.
Turning to counsel for the plaintiff’s
submission that “what Sekhoto did not do was to diminish the
requirement of reasonableness”
is, with respect, misguided. The
Sekhoto’s
case emphasized that “once the jurisdictional facts for an
arrest, whether in terms of any paragraph of S40 (1) or in terms
of
S. 43 are present, a discretion arises” (P.327,
para
:
38)
43.
No doubt, the discretion must be properly
exercised, that is, Judiciously so. The exercise of such a discretion
will be patently
unlawful if the peace officer effecting the arrest
culpably invokes the power conferred for a purpose unconnected to or
not envisaged
by the law-giver. The intention to arrest must, of
course, be solely to bring the arrestee to justice, nothing more and
nothing
less. The arrest is no more than one step in that process.
44.
Having had regard to the requirements for
Section 40 (1) (b) as aptly laid down in
Sekhoto’s
decision, it follows that previous
decisions which sought to introduce some constitutional issues by the
backdoor, such as
Le Roux v Minister of
Safety and Security
supra
were clearly wrong, and should, with respect, not to be followed.
45.
In view of the considerations aforesaid and
bearing in mind the facts
in casu
,
it follows that claim I was ill – conceived and is found
to lack merit. The defendant succeeded in discharging the
onus cast
on it. Claim I accordingly fails and is therefore dismissed.
46.
I now turn the spot light on Claim II and
III, respectively. Unlike in respect of Claim I, the
onus
has now drifted on the Plaintiff to
establish its claim on a balance of probabilities. I proceed to
consider first, Claim II, that
of alleged “arrest”.
47.
The plaintiff in its particulars of claim
with reference to this claim pleaded as follows:-
“
Claim
II – paragraph 8.
“
On
11 October 2016 at 14h00 at house 5364 Botlokwa plaintiff was
arrested by Maphaphuli for no reason at all and kept in custody
at
the Botlokwa Police Station and released the same day by the
employees of Defendant”.
48.
These allegations are, however,
emphatically denied by the Defendant in its plea. I may hasten to add
that allegations of the “arrest”
being unlawful are also
placed in dispute, the same being denied. It is generally accepted
practice that he who alleges, carries
the burden to prove the
allegations he makes.
49.
The claim in respect of the “arrest”
that allegedly occurred on 11 October 2016 has some shortcomings for
the following
reasons:-
49.1.
First, although its particulars of claim,
in particular, paragraph 8, it its alleged that “plaintiff was
arrested by Maphaphuli”
and in paragraph 11, that the said
“Maphaphuli was acting with (in) the course and scope of his
duty as
employee
of defendant at all reasonable times,” (own underlining)
nowhere was evidence adduced by the plaintiff that sought to
accentuate
on the capacity in which Maphaphuli acted within the
course and scope of his duty as an “employee” of the
defendant.
To complete the puzzle, cogent evidence was required that
defined Maphaphuli as a police officer who effected the alleged
“arrest”.
It is not, in my view, sufficient merely to
allege that he was an “employee” without pointing out his
status as a police
officer to constitute unlawful arrest.
Furthermore, no evidence was led to cure that defect in plaintiff’s
evidence on that
aspect.
49.2.
Similarly, in paragraph 8 referred to, the
plaintiff pleaded that he was kept in custody at Botlokwa Police
Station and
released the same day.
Again, plaintiff led no evidence
alleging whether or not his detention was in excess of 48 hours after
the alleged arrest, to constitute
unlawful arrest.
50.
That said, the next enquiry is whether the
plaintiff was in fact arrested unlawfully by Maphaphuli on 11 October
2016 as alleged.
51.
On
his own version, the plaintiff testified that 2 police officers
arrived at his homestead to deliver a court process, a Protection
Order issued against him.
[11]
According to him he refused to sign it, apparently not shown where to
sign as an acknowledgement of its receipt by him. For his
resistance,
the police took him to the police station and later he was taken by
the same police officers back home. Later, the
police returned with a
Protection Order properly issued on 11 October 2016
[12]
,
which the plaintiff this time around agreed to sign.
52.
From his evidence, nothing is suggestive
that the plaintiff, apart from being driven to the police station,
was legally speaking,
placed under arrest on 11 October 2016 by
Mphaphuli.
53.
Notwithstanding the fact that the
Magistrate who issued the Protection Order dated 11 October 2016
authorized the “arrest
of the Respondent, the execution of
which is suspended”(Items 4.2 and 4.3. thereof), it does not
appear plain from both his
evidence and that of Monyela, his witness,
that the plaintiff was ever placed under arrest or detained within
the meaning of a
legal arrest. Claim II, therefore lacks merit and
ought to fail.
54.
The evidence of the plaintiff and Monyela
at best however corroborates each other in respect of the alleged
assault in Claim III.
The photo album, Exhibit E, J88 medical report,
which were not disputed by the Defendant are self-speaking. The
Plaintiff’s
evidence and that of Monyela, sufficiently
corroborate the alleged assault as described by the plaintiff.
Both plaintiff
and Rebecca alleged that 2 police officers came to
plaintiff’s homestead where he was assaulted. The identity of
the responsible
police officer who assaulted him was confirmed by
both the plaintiff and Monyela by pointing him out in court with the
defence’s
consent.
55.
In the light of these considerations, I am
satisfied that there is adequate evidence of assault on the person of
the plaintiff by
one of the 2 police officers who came to deliver the
Protection Order on 11 October 2016. The assault was actuated, in all
probability,
by plaintiff having refused to sign for the initial Form
2, which was an application form, not Form 7. The plaintiff has
proved
its claim in respect of Assault on a balance of probabilities.
This claim succeeds. In the result, I make an order as follows:
ORDER
1.
Claim I and Claim II are dismissed with
costs.
2.
Claim III (assault) is granted with costs.
3.
The issue of quantum in respect of Claim
III is reserved for determination in due course.
__________________________
M.G
PHATUDI
JUDGE
OF THE HIGH COURT
LIMPOPO
DIVISION
REPRESENTATIONS:
1.
Counsel for the Plaintiff: Adv M.S
Schnehage
Instructed
by: Smit & Maree Attorneys
Polokwane
2.
Counsel for Defendant: Adv L. Nkoana
Instructed by: The State
Attorney
Polokwane
3.
Date heard: 06 to 12 June 2018
4.
Date Delivered: 03 August 2018
[1]
Act 51 of 1977, as amended
[2]
Bundle C, pp 28 -30
[3]
Bundle “6”pp 26 -31
[4]
Bundle “6”pp 46 - 47
[5]
Bundle “6”, p19
[6]
Bundle “6”, pp5 -9
[7]
1986 (2) SA 805
(A) at 818 G - H.
[8]
Mhanga
v Minister of Safety and Security [ 2002] 2 All SA 534 (TK)
[9]
Minister
of Law and Order and Others v Hurtley and Another
1986 (3) SA 568
(A) at 589 E – F per Rabie CJ.
[10]
2011 (I) SACR 315 at 325 e – f, para : 22
[11]
Bundle “6”, pp 12 -18, dated 19.09.2016 (Form 2)
[12]
Bundle “C” pp 23 -25. (Form 7)