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[2017] ZALMPPHC 16
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Lekgothoane v National Commissioner of SAPS and Others (1076/2016) [2017] ZALMPPHC 16 (11 July 2017)
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION, POLOKWANE
1076/2016
Not
reportable
Not
of interest to other judges
Revised.
11/7/2017
In
the matter between:
MATSOBANE
COMFORT
LEKGOTHOANE
PLAINTIFF
and
NATIONAL
COMMISSIONER OF SAPS & 3
OTHERS
DEFENDANT
JUDGMENT
MOKGOHLOA
DJP
1.
On 6 March 2015 violence broke out between Lebowakgomo Taxi
Association and Mphahlele Taxi Association. A complaint was lodged
at
Lebowakgomo Police Station. On 9 March 2015 Captain Chuene arrested
the plaintiff and charged him with public violence and pointing
of a
firearm. The plaintiff appeared in court on 10 March 2015 and was
released on bail. He thereafter made several appearances
at court
until the charges against him were withdrawn.
2.
On 14 August 2015, the plaintiff was again arrested by W/O Mapoulo
and charged him with malicious injury to property. He appeared
in
court on 17 August 2015 and the case was postponed to 27 August 2015
for his formal bail application. He was granted bail on
27 August
2015 and on 2 October 2015, charges against him were withdrawn.
3.
The plaintiff claims damages arising from the arrests and detentions
in the sum of R75 000.00 in respect of claim A, and
R2 265 136.00 in respect of claim B made up as follows:
Claim
A
3.1.
Wrongful arrest and detention
R25 000.00
3.2.
Humiliation and harassment
R25 000.00
3.3.
Contumelia, deprivation of
freedom of movement, freedom of association and discomfort
R25 000.00
Total
R75 000.00
Claim
B
3.4
Wrongful arrest and detention
R250 000.00
3.5
Humiliation and harassment
R100 000.00
3.6
Contumelia, deprivation of
freedom of movement, freedom of association and discomfort
R25 000.00
3.7
Loss of income
R1 890 136.00
Total
R2 265 136.00
4.
In their plea, the defendants
admitted the arrest and detention in respect of both claims but
denied the wrongfulness thereof. They
pleaded that the plaintiff was
arrested on a reasonable suspicion of having committed schedule 1
offences in terms of s40 (1) (b)
of the Criminal Procedure Act
(CPA)
[1]
.
5.
Two entirely different stories emerged as to the events relating to
the arrests, with virtually no intersection between them.
The
versions of the defendants, who began leading evidence, was testified
to by Captain Chuene and W/O Mapoulo.
Claim
A
6.
Captain Chuene testified that he received dockets relating to
offences of unlawful pointing of a firearm, public violence and
malicious injury to property. These offenses emanated from a taxi
violence which occurred on 6 March 2015. He studied these dockets
and
noticed that the name Totolo Lekgothoane was mentioned as one of the
suspects. He approached people who were already arrested
in respect
of the taxi violence to enquire whether this Totolo was amongst them.
He found the plaintiff’s brother Kingsley,
who informed him
that Totolo was his brother (the plaintiff). Kingsley phoned the
plaintiff who came to the police station. Upon
the plaintiff’s
arrival at the police station, Captain Chuene confirmed with the
witnesses and complainants that indeed the
plaintiff was Totolo. He
then arrested the plaintiff.
Claim
B
7.
W/O Mapoulo testified that he was the investigating officer in the
taxi violence case. According to him, there was no information
as to
who the suspect/s were. On a certain day, while he was at work, a
certain person whom he described as a Zimbabwean (I prefer
to refer
to him as an informer) arrived at the police station and informed W/O
Mapoulo that he was one of the people who were involved
in the taxi
shootings. The informer informed W/O Mapoulo that the plaintiff had
requested him to assist shoot the Lebowakgomo taxis.
W/O Mapoulo
obtained a statement from the informer wherein he explained how the
plan to shoot the taxis were carried out.
8.
Thereafter, W/O Mapoulo called the plaintiff to come to the police
station. That is when the plaintiff was arrested and detained.
According to W/O Mapoulo, the informer was shot and killed
immediately after the plaintiff was arrested.
9.
The plaintiff’s version was that in the morning of 9 March 2015
he was on his way to work when Kingsley called him and
informed him
that he was arrested. The plaintiff proceeded to the police station
to find out the reason for Kingsley’s arrest.
He met Captain
Chuene who informed him that he is arresting him on charges emanating
from the taxi violence. The plaintiff explained
to Captain Chuene
that he is a truck driver and not a taxi driver. Captain Chuene
released Kingsley and detained the plaintiff.
Captain Chuene enquired
whether the plaintiff owns any firearm. The plaintiff informed him
that he owns two licenced firearms and
handed one of the firearms
which was in his possession to Captain Chuene. Whilst in detention,
the police proceeded to the plaintiff’s
house and seized the
other firearm.
10.
Regarding the name ‘Totolo’ the plaintiff denied this to
be his name. According to him the taxi business belongs
to his father
and the business is called Totolo transport. This name also appears
on his father’s taxis.
11.
On 10 March 2015 the plaintiff appeared in court and was released on
bail. He called W/O Mapoulo to enquire about his firearms
and was
informed that the firearms have been taken for ballistic
investigations. Later, charges against him were withdrawn.
12.
On 14 August 2015 W/O Mapoulo called him to come to the police
station to collect his firearms. The plaintiff arrived at the
police
station and was told to wait until 13h00. At 13h00 the plaintiff
returned to W/O Mapoulo’s office who then informed
the
plaintiff that the ballistic report linked his firearms to a number
of offences. The plaintiff was thus arrested. He appeared
in court on
17 August 2015 and was remanded in custody until 27 August when he
was released on bail. Charges against him were subsequently
withdrawn
on 2 October 2015.
13.
The plaintiff denied that W/O Mapoulo ever informed him about a
statement made by an informer implicating him to the taxi shooting.
14.
The plaintiff testified about the impact these arrests had on his
employment. He stated that he is a truck driver delivering
goods
around Africa. He was employed at Pieter Esterhuizen driving a front
liner truck which had two trailers when he was arrested
on 9 March
2015. His routes were changed and he was made to do local deliveries.
This affected his salary which was reduced because
of change of
routes. His employer advised him that he cannot trust the plaintiff
with the delivery of expensive goods since he
was involved in taxi
violence.
15.
The reduction of his salary made the plaintiff to look for another
employment and he was hired at Catnis Constructions. He was
then
arrested two months after starting his new job. His employer was
equally concerned about his arrest. He did not receive his
salary
from 17 August 2015 to 31 August 2015 (time when he was in custody)
and his employer treated these days as unpaid leave.
16.
Things became worse when the plaintiff’s Public Permit Licence
expired. He proceeded to the licensing department to renew
his
licence. The report of his fingerprints showed that he is in a data
base of criminals and therefore his licence could not be
renewed.
This led to the plaintiff losing his employment. He has been
unemployed since February 2016. He cannot obtain employment
because
his licence has expired. His wife left him because of his financial
status. The community regards him as a criminal who
goes around
shooting people. His dignity was thus affected. He is black listed
for failing to pay his debts and his properties
have been executed.
The plaintiff stated that to be associated with taxi violence has
humiliated and degraded him.
17.
Kingsley testified and confirmed that Totolo is not the plaintiff’s
name but it is the brand name used by his father on
his taxis. He
confirmed further that the plaintiff is a truck driver and was not a
taxi driver nor a member of any taxi association
and thus not
involved in the taxi industry. He confirmed that he was arrested and
he informed his brother, the plaintiff about
the arrest. The
plaintiff arrived at the police station and was arrested. He denied
having told the police that the plaintiff is
Totolo.
18.
Albert Manamela (Manamela), a private investigator whose credentials
were outlined, testified that he received instructions
from the
plaintiff’s attorney to assist in this matter. He consulted
with the plaintiff who gave him the CAS numbers of the
charges he had
faced. He then met W/O Mapoulo who furnished him with documents
relating to CAS 109/04/2014 and CAS 110/04/2014
which relates to
charges which were preferred against the plaintiff. W/O Mapoulo
informed him that the police did not have sufficient
evidence until
the public violence and pointing of a firearm cases were reported and
plaintiff was arrested.
19.
According to Manamela, W/O Mapoulo informed him that the plaintiff’s
firearms were seized and taken for ballistic investigations.
The
ballistic report linked the firearms to other crimes around Limpopo,
Mpumalanga, Gauteng and KwaZulu – Natal. W/O Mapoulo
informed
Manamela that based on this report, he arrested the plaintiff.
Manamela read and analysed the ballistic report and found
that there
was no indication that the plaintiff’s firearms were linked to
the cartridges found on the scene of any crime
but the indication was
that all cartridges were found to have been fired from the same
firearm. Based on this investigation, Manamela
came to a conclusion
that the plaintiff was wrongfully arrested and detained.
20.
The starting point in determining whether the arrest without a
warrant is lawful or not is in the Criminal Procedure Act (CPA).
Section 40 (1) (b) of the CPA provides that a peace officer may
without a warrant arrest any person whom he reasonably suspects
of
having committed an offence referred to in Schedule 1 of the CPA.
21.
In Duncan v Minister of Law and
Order
[2]
the jurisdictional facts which must exist before the power conferred
by section 40 (1) (b) may be invoked, were set out as follows:
(i)
the arrestor must be a peace officer; (ii) the arrestor must
entertain a suspicion; (iii) the suspicion must be that the suspect
(arrestee) committed an offence referred to in Schedule 1 of the CPA;
and (iv) the suspicion must rest on reasonable grounds.
22.
An arresting officer is
therefore required to form a reasonable suspicion of a commission of
an offence before arresting an individual,
which arrest effectively
deprives the individual of his/her liberty. The burden of prove that
the arrest was justified and not
wrongful rests on the defendant
[3]
.
23.
The question whether Captain Chuene and W/O Mapoulo had reasonable
suspicion that the plaintiff committed the offences must
be
considered by taking into account that:
“
Suspicion in its ordinary
meaning is a state of conjecture or surmise where proof is lacking;
‘I suspect but I cannot prove’.
Suspicion arises at or
near the starting point of an investigation of which the obtaining of
prima facie proof is the end.”
[4]
24.
When considering whether the suspicion was reasonable, it must be
objectively clear that a reasonable man in the circumstances
wherein
the arresting officer finds himself would have suspected that the
plantiff had committed the offence.
25.
Jone J stated the following in
Mabona v Minister of Law and Order
[5]
:
“
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
Eat 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.”
26.
It is not in dispute that taxi violence erupted on 6 March 2015.
Equally not in dispute that Captain Chuene was allocated the
dockets
relating thereto. Captain Chuene studied the dockets and the name
Totolo Lekgothoane appeared as a suspect. He confirmed
this
information from the people who were already arrested in this case.
According to him, Kingsley informed him that Totolo was
his brother,
the plaintiff. Whether this is true or not, the fact remains that
Kingsley and the plaintiff are somehow connected
to the name Totolo.
27.
Taking into consideration the fact that taxi violence is one of the
thorny issues and a prevalent offence in our country, I
find Captain
Chuene’s belief that the plaintiff was Totolo and his decision
to arrest him, to be reasonable in the circumstance.
In my view, and
bearing in mind that at times it is necessary to strike while the
iron is hot, Captain Chuene’s decision
to arrest the plaintiff
in order to curb and stop this violence was justified.
28.
I can however not say the same with W/O Mapoulo’s conduct. He
knew that the ballistic report did not link the plaintiff’s
firearms to this violence or any other offence emanating from the
taxi violence. He however proceeded to arrest him. This arrest
cannot
be justified by any means. Furthermore, and with full knowledge that
there exist no evidence to charge the plaintiff, W/O
Mapoulo
instituted criminal proceeding against the plaintiff without
reasonable and probable cause. He attended the court proceedings
and
failed to advice the prosecutor of this. He disvowed during trial the
defendants’ plea that he arrested the plaintiff
based on the
ballistic report.
29.
W/O Mapoulo’s version about a statement obtained from an
informer is equally questionable. According to him, he did not
put
this statement in the docket but kept it with him. This he did to
protect the informer. He did not inform the prosecutor about
the
existence and contents of this statement because he did not trust the
prosecutor. The existence of this statement was neither
brought to
the attention of the attorney in this matter who could have amended
the plea to state that the plaintiff was arrested
on the basis of the
informer’s statement. W/O Mapoulo is an experienced officer who
has been a police for about 20 years.
He knew the importance of
making available all necessary information to the prosecutor and the
attorney. His choice not to do so
makes one to come to an inescapable
conclusion that such informer or statement never existed. His version
in this respect should
equally be rejected. In my view, W/O Mapoulo’s
conduct was unreasonable, unjustified and malicious.
30.
During the trial and immediately before the cross examination of the
plaintiff, Mr Ngoetjana for the defendants, attempted to
hand in
certain documents to the court. Plaintiff’s counsel objected to
such documents being handed in on the basis that
they were not
properly discovered. Mr Ngoetjana submitted that it was not necessary
for the defendants to discover those documents
because the plaintiff
did not ask for the discovery in terms of R35 (1) of the Uniform
Rules of Court. I referred Mr Ngoetjana
to R35 (4) and adjourned the
matter to enable the defendants to prepare and bring the application
for that purpose. I did this
because I realised that Mr Ngoetjana did
not understand the provisions and purpose of R35. On the next day, Mr
Ngoetjana made an
attempt to argue the application but still failed.
He failed to give adequate and satisfactory reasons for the
defendants’
failure to comply with the Rules. He failed to
state whether those documents were or were not in the defendants’
possession
at the time of discovery, and if not, when did the
defendants obtain possession thereof. I then dismissed the
application with
costs because I expected the defendants, being the
state, to engage services of attorneys and counsel who are
proficient, efficient
and skilful, practitioners who bestow
sufficient care and attention in the conduct of business entrusted to
them.
31.
Regarding the plaintiff’s claim for loss of income, the
defendants argued that this claim should be dismissed on the basis
that it is a claim for pure economic loss which does not arise
directly from damage to the plaintiff’s person or property
but
as a result of negligence. Furthermore, the argument continued, there
is no evidence that the police officer in arresting the
plaintiff
foresaw or should have foreseen that the plaintiff would suffer loss
of income as a result of the arrest.
32.
I find the above argument to be without substance. The plaintiff
testified at length about the impact the arrest had on his
employment
and income. I have stated this in paragraph [14] – [16] of this
judgment. I even requested the defendants’
counsel to assist
the plaintiff to have his name removed from the criminal records.
33.
The
onus
is on the defendant to show that the arrest and detention was
lawful
[6]
.
The onus to prove loss of income is on the plaintiff. The lawfulness
or otherwise of the arrest is resolved by which version is
accepted.
I have already indicated the reasons why I accept the evidence of
Captain Chuene which rendered his conduct justifiable
and reject W/O
Mapoulo’s evidence. I further find that the plaintiff
discharged the
onus
placed on him to prove that he lost income as a result of the
unlawful arrest and detention by W/O Mapoulo.
34.
The question then, is what damages should be awarded in respect of
claim B and loss of income. Mr Ngoetjana, for the defendant
submitted
that it would be difficult and impossible to determine the amount to
be awarded since the plaintiff failed to plead and
testify about the
duration of his detention. He referred in particular that the time of
the arrest and the release of the plaintiff
was not stated. With due
respect, Mr Ngoetjana ignores again the evidence tendered during
trial. He further ignores the copy of
the cell book registrar as
appears in pages 102 – 106 of the plaintiff’s expert
bundle.
35.
Regarding quantum on loss of income, the plaintiff consulted with a
Clinical Psychologist and the Industrial Psychologist who
compiled
their respective reports. Based on these reports the actuary made
calculation in respect of the plaintiff’s loss
of income. These
experts’ reports are not disputed.
36.
I have been referred to a
number of decided cases dealing with the award of damages in
circumstances similar to this matter. The
question of previous awards
was reviewed in Minister of Safety and Security v Seymour
[7]
which concluded that the only discernable pattern was that
courts are not extravagant in such awards. The facts of each case
must be evaluated on their own merits because few cases are directly
comparable.
37.
In the present matter, the plaintiff was arrested and detained for 13
days. During this time, he lost his employment. The arrest
and
subsequent charges caused his name to be listed in a data base of
criminals. Consequently, he was unable to renew his professional
public permit licence. These caused humiliation and degradation for
the plaintiff who is still unemployed.
38.
Taking all of the above factors into consideration, it seem to me
that an award of R100 000.00 would be appropriate in
respect of
the arrest and detention. As regards loss of income, I cannot find
any reason to deviate from the calculation by the
actuary.
Consequently therefore an amount of R1 890 136.00 should be
awarded.
Order
Judgment
is granted in favour of the plaintiff for:
1. Payment of the sum of R100 000.00
in respect of Claim B.
2. Payment of the sum of R1 890 136.00
in respect of loss of income.
3. Interest a
tempore morae
at
the rate of 9% from 5 April 2016 to date of payment
4. Costs of suit.
MOKGOHLOA
DJP
REPRESENTATIONS
1.
For the
Plaintiff : Adv Nkoana
Instructed
by : Makgahlela Mashaba Attorneys
2.
Counsel for
the defendant : Adv Ngoetjana
Instructed
by : State Attorney
3.
Date of
hearing : 24 June 2017
4.
Date handed
down : 11 July 2017
[1]
51 OF 1977
[2]
1986 (2) SA 805
(A) at 818 F-H
[3]
Minister of
safety and Security v Sekhoto 2011 (1) SACR 315
[4]
Shabaan Bin Hussein and Other v Chong Fook Kam and Another
1969 3
ALL ER 1627
(PC) as referred with approval in Duncan v Minister of
Law and Order (supra)
[5]
1988 (2) SA 654
(EC) at 658 E-H
[6]
Zealand v Minister of Justice and Constitutional Development and
Another
[2008] ZACC 3
;
2008 (4) SA 458
(CC) paras 24 and 25
[7]
2006 (6) SA 320
(SCA)