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[2018] ZALMPPHC 43
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Mphahlele v Minister of Safety and Security (1209/2013) [2018] ZALMPPHC 43 (10 August 2018)
REPUBLIC OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
CASE
No: 1209/2013
In
the matter between:
MAUPE
RAIDER
MPHAHLELE
:
PLAINTIFF
And
MINISTER OF SAFETY AND
SECURITY
:DEFENDANT
JUDGMENT
SEMENYA J:
1.
Plaintiff
instituted action for damages in the amount of R500 000.00, for
unlawful arrest and detention and assault by the
members of the South
African Police Services, who were in the employ of the defendant and
acting within the scope of their duties.
2.
The
parties have agreed, and it was so ordered, that the issue of merits
and quantum should be separated in terms of Rule 33 of
the Rules of
Court. This judgment concerns merits only.
3.
It is
common cause that the plaintiff was arrested without a warrant at his
home where he is running a business of a spaza shop
at about 11:00 on
the 5 October 2011. He was thereupon taken to Lebowakgomo police
station where he was detained for allegedly
five days. He was charged
with assault on police, malicious damage to property and obstructing
a police officer in the execution
of his duties. The defendant’s
version is that the criminal case against the plaintiff was case was
subsequently withdrawn.
The plaintiff on the other hand submitted
that the case went on trial and he was subsequently acquitted.
4.
Whereas
the arrest and detention of the plaintiff is admitted by the
defendant, the unlawfulness of that arrest and detention is
disputed.
The defendant is relying on section 40 (1) (a) of the Criminal
Procedure Act 51 of 1977 (the Act) on the basis that the
plaintiff
was allegedly arrested for committing an offence in the presence of
police officers.
5.
The
claim rests on the facts as summarized hereinunder. The version of
the two police officers, Constable Calvin Mabale Mphahlele
and
warrant officer Morris Madimetja Modula (Modula), who arrested the
plaintiff in this matter, is almost identical. The two witnesses
testified that they were, as at the date of the incident, in the
employ of the South African Police Service and stationed at
Lebowakgomo
police station. They were officially on duty on Wednesday
of the 5 October 2011 together with Calvin Madupe Mphahlele (Tshupe),
who has since resigned, performing patrol duties at Thamagane,
Ga-Mphahlele. They approached a group of boys who were leaning
against a wall at the plaintiff’s spaza shop. They searched
them after they had introduced themselves to the said boys as
police
officers. Dagga was found in one of the boys named Zinny’s
pocket. It is common cause that this Zinny is not mentally
sound.
6.
According
to the witnesses the plaintiff came and objected to the search,
saying that the boys were his customers and the police
cannot just
come there and arrest them. The plaintiff poked Tshupe with a finger
and slapped him with an open hand. He further
pulled him with his
clothes thereby tearing his T-shirt. The plaintiff was arrested for
offences assault, malicious damage to property
and obstructing police
officers in the execution of their duties on Modula’s
instructions. Modula testified that it was not
necessary to apply for
a warrant as the offences were committed in the presence of a peace
officer.
7.
During
cross-examination the two police officers denied that they assaulted
the plaintiff by kicking him with booted feet. In answering
the
question whether the arrest of the plaintiff was an extreme measure,
the two witnesses stated that the arrest of the plaintiff
was
commensurate with the seriousness of the offences that he has
committed. The witnesses admitted that the incident happened
at 11:00
and that they arrived at the police station at 12:40. In explaining
what have happened between 11:00 and 12:40, Modula
stated that it
took some time to manage to arrest the plaintiff who was resisting
and further that they had to travel from Thamagane
to Lebowakgomo.
8.
The
plaintiff confirmed that he is the owner of the spaza shop that was
visited by the police on the 5 October 2011. According to
his
version, the police arrived there at the spaza shop and searched
them. Two of the officers were not in uniform and the vehicle
they
were travelling in was unmarked. As they were so searching, Tshupe
kicked one of the boys. He objected and told the officers
that we are
living in a democratic country and the law does not allow them to hit
other people.
9.
The
plaintiff stated further that the officers grabbed him by his clothes
and kicked him while he had fallen to the ground. They
tore the
buttons of his shirt and the zip of his pair of trousers. He was then
and there thrown into the police van like an animal.
He was then tied
to the van. The police drove around with him and went with him to
Tshupe’s house where they had lunch. He
was taken to
Lebowakgomo police station where he was locked up in the cells at
16:00. He was taken to court on Monday, after five
days and was
released on bail. He stated that he was subsequently acquitted on all
charges.
10.
It
was put to the plaintiff that he cannot deny that he assaulted a
police officer, insulted them, tore a T-shirt and interfered
with
them when they were performing their duties as their the version of
the defendant’s witnesses was not disputed during
cross -
examination. Although he conceded that assault, possession of dagga
and malicious damage to property are criminal offences,
he denied
that any of the boys was found in possession of dagga at his spaza
shop. He also denied that the police were justified
in arresting him.
It was further put to him that it is not correct that he was detained
at 16:00 as the documents shows that he
was taken to the cells at
12:40. The plaintiff’s version that he was chained to the
canopy was denied. The plaintiff denied
that Zinny was at his spaza
shop on the date of the incident.
11.
Violet
Ramadimetja Mphahlele, who testified on behalf of the plaintiff sated
that she was at the bus stop, about 10 to 15m from
the spaza shop
when the officers arrived. She waited for a taxi from 8 to 11am. She
saw the plaintiff retreating. She again saw
the officers handling him
in a rough manner. She approached the officer and asked them about
the reasons why they were treating
the plaintiff in that manner. She
could see that the plaintiff’s shirt and the zip of his
trousers were torn off. She further
confirmed the plaintiff’s
version that he was the only person who was arrested on that date.
12.
It
was put to the witness that it is improbable that she could have
waited for a taxi for two hours. She stated that she did not
see the
plaintiff assaulting the police and that nothing had obscured her
view. She could not say that the plaintiff was resisting
arrest when
she saw him retreating. She confirmed the plaintiff’s version
that the matter went on trial and that two police
officers testified
against the plaintiff.
13.
In
Minister
of Law and Order v Hurley and Another
1986 (3) SA 568
(A) at 589E-F
it was stated that 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 the action was justified in law.The defendant, in
view of the admissions made, bore the burden of proving the
lawfulness of the arrest and detention as well as the duty to begin.
14.
Section
40 of the Act provides as follows:
“
Arrest
by a peace officer-
(1)
A peace officer may without warrant arrest any person-
(a)
who
commits or attempt to commit any offence in his presence
;”
15.
Section
50 (1) (c) Of the Act provides that a person who is arrested with or
without a warrant, and who is not released by reason
that no charge
is brought against him/her or bail is not granted to him/her in terms
of section 59 or 59A, shall be brought before
a lower court as soon
as reasonably possible, but not later than 48 hours after arrest.
16.
It is
not in dispute that Modula who issued an instruction that the
plaintiff should be arrested is a peace officer. It is further
common
cause that the plaintiff was arrested without a warrant for his
arrest. The plaintiff disputes the defendant’s allegations
that
he had committed offences in the presence of a peace officer.
17.
The
plaintiff’s claim is bound to fail in case I find that the
defendant has established the existence of all jurisdictional
facts
on a balance of probabilities. The test to be applied to the facts is
whether the arresting officer had direct personal knowledge
of
sufficient facts at the time of the arrest, on the strength of which
it can be concluded that the arrestee had
prima
facie
committed an offence in his or her presence.-See
Scheepers
v Minister of safety and Security
2015 (1) SACR 284
(ECG).
18.
It
was contended on behalf of the defendant that the arrest of the
plaintiff without a warrant was lawful in that the plaintiff
had
committed the offences of assault on police, malicious damage to
property and obstructing the police in the execution of their
lawful
duties. It was further argued that the detention of the plaintiff was
justified in that it was done with the intention of
taking the
plaintiff to court. It was submitted that should the court find that
the plaintiff was detained for a period longer
than 48 hours without
being brought to the lower court, the court should find that the
defendant is liable for unlawful detention
for the period outside the
48 hours only.
19.
The
defendant’s contention that the version of the two witnesses
who testified on behalf of the defendant was not challenged
during
cross-examination is correct. It is on this basis that I find no
reason to reject the defendant’s version that the
plaintiff
assaulted a police officer, tore his clothes and interfered with the
performance of their duties when they wanted to
arrest a person who
was found in possession of dagga. I find that the two police officers
were credible witnesses. I also fail
to find any ill motive on their
part.
20.
On
the other hand, I find it difficult to believe the version of Violet
Mphahlele and that of the plaintiff. In the first place,
the
plaintiff did not say anything with regard to her presence at the
scene. Secondly, she was about 10-15m away from the scene
and could
not deny that the plaintiff was resisting arrest when he was
retreating when she saw what she referred to as Rough handling
of the
plaintiff by members of the police. I further agree with the
defendant’s submission that it is improbable that Violet
could
have waited for a taxi from 8am to 11am.
21.
The
plaintiff himself was a poor witness. He evaded clear and
straightforward questions that were put to him during
cross-examination.
He hid behind the fact that he is not well
conversant with English despite the fact that he was provided with
the services of an
interpreter. It cannot be true that he arrived at
the police station at 16:00. The defendant’s version that
he was
detained at 12:40 was not disputed, neither was it put to the
defence witnesses that they were lying about that fact.
22.
I
accept the defendant’s version that the plaintiff committed
offences in their presence and that they had authority to arrest
the
plaintiff without a warrant in terms of section 40(1) (a) of the Act.
It was however put to the two police officers that they
could have
used less drastic measures of ensuring the appearance of the
plaintiff in court other than that of arresting him.
23.
It
was stated in
Minister
of Safety and Security v Sekhoto and Another
2011 (5) SA 367
(SCA) at
[28]
that “
once
the jurisdictional facts for an arrest, whether in terms of any
paragraph of s40 (1) or in terms of s43 are present, a discretion
arises. The question whether there are any constraints on the
exercise of discretionary powers is essentially a matter of
construction
of the empowering statute in a manner that is consistent
with the Constitution. In other words, 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 arrest.”
24.
I am
unable to find any
mala
fide
on the part of the arresting officers in arresting and detaining the
plaintiff in this matter. Their intention was clearly to bring
the
accused to court. In their evidence they indicated that they regarded
the offences the plaintiff has committed, in particular
that of
interference with the performance of their duties as serious. I
cannot find any fault in their reasoning. The discretion
was
therefore exercised judiciously.
25.
Section
50(1)(c) cited above must be read with section 35(1)(d)(i) of the
Constitution of the Republic of South Africa, 1996. This
section
provides that ‘
Everyone
who is arrested for allegedly committing an offence has a right -….
to
be brought before a court as soon as reasonably possible, but not
later than 48 hours.
”
It
is not in dispute that the plaintiff was arrested at about 11:00 on
Wednesday of the 5 October 2011. It is further common cause
that he
was brought before court on the 10
th
.
This was clearly after the expiration of 48 hours in contravention of
the two statutes.
26.
I
agree with the submissions made on behalf of the defendant that the
plaintiff’s detention during the period that fall outside
48
hours is unlawful and that the defendant can only be held liable for
those hours only for the purposes of quantification of
damages.
27.
The
version of the police officers that they struggled to arrest the
plaintiff to the extent that force was required cannot be rejected.
Violet testified that she saw the plaintiff retreating and thereafter
a scuffle ensued between him and police officers. The plaintiff
clearly did not want the police to arrest him. The plaintiff’s
claim for damages on the basis of assault can therefore not
succeed.
28.
In
the premise I make the following order:
26.1. The plaintiff’s claim for
damages for unlawful arrests and assault fails;
26.2. The plaintiff’s claim for
damages for unlawful detention succeeds only to the extent of
detention outside the 48 hour
period.
M.V
SEMENYA
JUDGE PRESIDENT OF THE
HIGH COURT, LIMPOPO DIVISION.
APPEARANCES
ATTORNEYS FOR THE
PLAINTIFF
: THOMAS GROBBLER ATT
COUNSEL FOR THE
PLAINTIFF
: ATT. T. GROBBLER
ATTORNEY FOR THE
DEFENDENT
: STATE
ATTORNEY
COUNSEL FOR THE
DEFENDENT
:
DATE OF
HEARING
: 08 MAY 2018
DATE
OF JUDGMENT
: 10 AUGUST 2018