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[2018] ZALMPPHC 48
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Phaswane v Minister of Police (735/2014) [2018] ZALMPPHC 48 (6 September 2018)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
CASE
NUMBER: 735/2014
Not
reportable
Not of
interest to other judges
Revised.
6/9/18
In
the matter between:
PHASWANE
BAFANA
JOHANNES
PLAINTIFF
And
MINISTER
OF
POLICE
DEFENDANT
JUDGEMENT
KGANYAGO
J
[1]
The plaintiff Bafana
Johannes Phaswana has instituted an action against the defendant the
Minister of Police arising out of an incident
which happened on 15
th
March 2012.
[2]
The plaintiff alleges that he was wrongfully and unlawfully arrested
and detained by members of the South African Police Services
(SAPS)
who were at all material times acting within the course and scope of
their employment. He further alleges that he was arrested
without a
warrant and that as a result of the wrongful and unlawful conduct by
the members of the SAPS, he had suffered damages
in respect of pain
and suffering, emotional dignity, emotional distress, violation of
personal dignity, harassment and embarrassment.
The plaintiff further
alleges that he was brought to court after the expiry of 48 hours
after his arrest. The plaintiff claim a
globular sum of damages in
the amount of R500 000-00.
[3]
The action is defendant. The defendant does not dispute that the
plaintiff was arrested by members of the SAPS. The defendant
denies
that the arrest and detention was unlawful and aver that the
plaintiff was arrested by the members of the SAPS in terms
of section
40(1)(b) of the Criminal Procedure Act 51 of 1977 (CPA) since the
members of the SAPS reasonably believed him to have
committed an
offence listed in schedule 1 of the CPA, and further that they were
justified in arresting the plaintiff without a
warrant. The defendant
denies that the plaintiff was brought to court after the expiry of 48
hours after his arrest. According
to the defendant the plaintiff was
arraigned to court on the 19
th
March 2012 and that any
further detention thereafter was not at their instance.
[4]
The parties agreed to separate merits and quantum. They further
agreed that the defendant bore the onus of showing or proving
that
the arrest and detention of the plaintiff was justifiable and lawful.
[5]
The defendant called Alfred Mashudu Muladzi as its first witness. He
testified that during 2012 he was the captain stationed
at Makhado
SAPS. He is the one who arrested the plaintiff on the 15
th
March 2012 during the evening.
[6]
He stated that when he reported for duty in the evening he found a
docket opened for alleged rape of an 11 year old boy (victim).
He
perused the A1 statement in the docket. Later the victim came being
accompanied by a church member who was the complainant’s
guardian. The victim told him where the plaintiff was residing. He
together with the victim, complainant and his crew went to the
plaintiff’s homestead where he arrested the plaintiff.
[7]
He stated that before he arrested the plaintiff, he introduced
himself, showed the plaintiff his employment card, and told him
the
purpose of their visit. The plaintiff denied having raped the victim.
The plaintiff refused to accompany them and he grabbed
the plaintiff
by his shirt and took him to the police vehicle.
[8]
He further stated that he took the plaintiff to the police station,
recorded his particulars in the occurrence book, and explained
to him
his constitutional rights. After explaining his constitutional
rights, the plaintiff signed them, and thereafter he locked
him in
the police holding cells at Makhado SAPS. Thereafter he did not have
any further dealings with this matter.
[9]
The witness was cross examined and he stated that before he arrested
the plaintiff, he had a statement of the victim which positively
identified the plaintiff, and also the fact that he was with the
victim who pointed to him where plaintiff resided and also the
place
where the alleged rape took place. He conceded that he did not
explain to the plaintiff his constitutional rights when he
arrested
him, but only did so at the police station for the purposes of
detaining him.
[10]
The defendant called Enos Mpho Mfuni as its second and last witness.
He testified that he is the warrant officer responsible
for the child
protection and family violence. He was the investigating officer in
the plaintiff’s case. He is the one who
took a warning
statement and finger prints from the plaintiff. Thereafter he took
the plaintiff to hospital for blood to be taken
from him for purposes
of DNA analysis.
[11]
He stated that he also took statements from other witnesses.
Thereafter he was responsible to make sure that the plaintiff
appeared in court. He took the docket to the control prosecutor. The
plaintiff’s first appearance in court was on the 19th
March
2012, but he is not the one who physically took the plaintiff to
court. He was also not in court when the plaintiff made
his first
appearance.
[12]
He further stated that on the 22
nd
March 2012 he went to
the control prosecutor to fetch the docket. On the docket there was
no entry as to when the plaintiff appeared
in court. However, the
notes on the diary showed that the plaintiff appeared in court on the
19
th
March 2012. The date which appears on the charge
sheet that is in the bundle of documents marked “Index C:
Bundle of various
documents” is the date of the plaintiff’s
first appearance in the regional court. The public prosecutor did not
endorse
the date of the 19
th
March 2012 on the docket.
[13]
The witness was cross examined and he conceded that he did not have
the charge sheet of the district court in which the plaintiff
made
his first appearnce. He conceded that he did not physically see the
plaintiff appearing in court on the 19
th
March 2012, but
was only told about that.
[14]
That concluded the evidence of the defendant and they closed their
case. The plaintiff closed its case without leading any
evidence.
Both parties submitted their closing address.
[15]
It is trite that a person’s liberty, personality and dignity
are usually compromised by wrongful or malicious arrest.
An arrest or
detention is prima facie wrongful and unlawful and it is for the
defendant to allege and prove the lawfulness of the
arrest or
detention once admitted (
See Lombo v African National Congress
2002 (5) SA 668
SCA).
[16]
It is also trite that in the absence of a warrant an arrest is lawful
if it is effected in terms of section 40(1) (b) of the
CPA. However
there are four jurisdictional facts which must exist before the power
conferred by s 40(1) (b) may be invoked. Those
jurisdictional facts
are that the arrestor must be a peace officer, he must entertain a
suspicion, it must be a suspicion that
the arrestee committed an
offence referred to in schedule 1 of the Act, and that suspicion must
rest on reasonable grounds. (See
Duncan v Minister of Law and
Order 1966(2) 805 (A))
[17]
It is common cause that the arresting officer captain Mulaudzi is a
peace officer. There was a complaint that was laid against
the
plaintiff. A docket was opened and a statement was also made by the
complainant. Before captain Mulaudzi could act on the complaint
laid,
the complainant and the victim arrived at the police station. The
complaint was about an alleged rape which is a schedule
1 offence.
The complainant and the victim verified the complaint and even told
captain Mulaudzi that they knew where the plaintiff
was residing.
Captain Mulaudzi was having first-hand information.
[18]
The complaint was about an alleged rape of minor boy below the age of
the 16 years. Even though the victim was below the age
of 16 years,
he was accompanied by the complainant who is his guardian. Both the
complainant and the victim verified what was contained
in the A1
statement. Thereafter the complainant and the victim took captain
Mulaudzi to the plaintiff’s homestead where the
victim
identified the plaintiff as perpetrator. Rape of a child of below age
of 16 is a very serious offence and fell within the
ambit of schedule
1 offences. In my view even if the victim was below the age of 16
years, there were no grounds upon which captain
Mulaudzi could have
doubted his positive identification of the plaintiff. Captain
Mulaudzi did not act merely on the basis of the
A1 statement but the
complainant and the victim were personally there to give him
first-hand information, and even took him to
where the plaintiff
resided where the victim positively identified him. Therefore, in my
view, the remaining three jurisdictional
facts were met and the
arrest of the plaintiff was lawful and justifiable.
[19]
Regarding the detention of the plaintiff, it is trite a person
arrested with or without a warrant must be brought before a
lower
court as soon as possible before the expiry of 48 hours after arrest.
[20]
Section 50(1) of the CPA reads as follows:
“
50(1) (a) Any
person who is arrested with or without warrant for allegedly
committing an offence, or for any other reason, shall
as soon as
possible be
brought to
a police station or, in the case of an arrest by warrant, to any
other place which is expressly mentioned in the warrant.
(b) A person who is in
detention as contemplated in paragraph (a) shall, as soon as
reasonably possible, be informed of his her
right to institute bail
proceeding.
(c) Subject to
paragraph (d), if such an arrested person is not released by reason
that-
(i)
No
charge is to be brought against him or her; or
(ii) Bail is not
granted to him or her in terms of section 59 or 59 A, he or she shall
be brought before a lower court as soon as
reasonably possible, but
not later than 48 hours after the arrest.
(d) If the period of
48 hours expires-
(i) Outside ordinary
court hours or on a day which is not an ordinary court
day, the accused shall be brought
before a lower court not later than
the end of the first court day.”
[21]
In
Mashilo v Prinsloo
[2012] ZASCA 146
(28 September 2012)
at
para 16 Tshiqi, JA said:
“…
The
outer limit of 48 hours envisaged in the subsection does not, without
more, entitle a policeman to detain someone for that entire
period
without bringing him to court if it could be done earlier. The
subsection obliges police authorities to bring someone before
court
as soon as is reasonably possible. This is so, whether or not the 48
hours expires before or during the weekend. Expedition
relative to
circumstances is what is dictated by the subsection and
the detention. Deliberately obstructive
behaviour, as was evidenced by Mashilo, is not tolerated. “
[22]
The plaintiff was arrested on the 15 March 2012 a date which the
defendant alleges that it was on a Thursday. Therefore, the
48 hours
was expiring on Monday the 19
th
March 2012. The defendant
contends that the plaintiff’s first appearance in the district
court was on the 19
th
March 2012. However, the defendant
has failed to attach copy of the charge sheet in the district court
where the plaintiff allegedly
made his first appearance. Copy of the
charge sheet that has been included in the bundle of merits documents
shows that the accused
first appearance in the regional court was on
the 21
st
of 2012 and the month is not clear. It is common
cause that the 21
st
of March is a public holiday. However,
it is not uncommon for an accused person to appear in court after
hours, over the weekend
or a public holiday for the purposes of a
bail application.
[23]
The defendant’s second witness, warrant officer Mfuni testified
that on the 19
th
March 2012 he book the plaintiff’s
docket to the control prosecutor as the plaintiff was appearing in
court that day. However
he is not the one who physically took the
plaintiff to court, and was not present when the plaintiff appeared
in court. He collected
the docket from the control prosecutor on the
22
nd
March 2012, and that on the notes of the diary it was
noted that the plaintiff appeared in court on the 19
th
March 2012. However, the defendant has failed to discover the notes
of diary or to include them in the bundle of merits documents.
[24]
The plaintiff in his particulars of claim has stated that he was
brought to court for his first appearance after the expiry
of 48
hours after his arrest. The defendant was all along aware of this
contention by the plaintiff but opted to discover the charge
sheet of
the plaintiff’s first appearance in the regional court which
did not advance its case, but instead strengthened
the plaintiff’s
case. They also failed to discover the diary which warrant officer
Mfuni alleges that it has recorded the
plaintiff’s first
appearance in the district court. Counsel for the plaintiff has
correctly conceded that as far as it relates
to the plaintiff’s
first appearance in the district court, it is very sketchy. The only
version that the court is having
is that which appears on the
plaintiff’s particulars of claim. With the documents submitted
by the defendant, it cannot be
established as to when the plaintiff
made his first appearance in the district court. The onus is on the
defendant to show that
the detention of the plaintiff was also
lawful.
[25]
In my view the defendant has failed to show that the plaintiff was
brought in the district court before the expiry of the 48
hours after
his arrest. The 48 hours was expiring on Monday the 19
th
March 2012. Therefore, the plaintiff’s further detention after
the 19
th
March was unlawful.
[26]
It therefore follows that on the alleged unlawful and wrongful
arrest, the defendant has discharged the onus in proving that
the
arrest of the plaintiff was lawful and justified. However, in
relation to detention of the plaintiff, the defendant has failed
to
discharge the onus resting on it to prove that the detention was
lawful and justified.
[27]
I turn to costs. It is trite that costs follow the suit. However in
this case both parties were partially successful. It will
therefore,
be just and equitable if each party pays his or its own costs.
[28]
In the result I make this order
(28.1) The Plaintiff’s
claim on alleged unlawful and wrongful arrest is dismissed.
(28.2) The defendant is
liable to pay 100% of the plaintiff’s proven or agreed damages
caused by the unlawful detention.
(28.3) Each party to pay
his or its own costs.
MF.
KGANYAGO J
JUDGE OF THE HIGH
COURT POLOKWANE, LIMPOPO DIVISION
APPEARANCE:
COUNSEL
FOR THE PLAINTIFF: Adv Ramagalela
INSTRUCTED
BY: Mabunda Attorneys
COUNSEL
FOR DEFENDANT: Adv
INSTRUCTED
BY: State Attorney Polokwane
DATE
OF HEARING: 14 August 2018
DATE
OF JUDGEMENT: 6
th
September 2018