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[2017] ZAGPPHC 18
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Makhoba v Minister of Police (9613/2012) [2017] ZAGPPHC 18 (24 January 2017)
REPUBLIC OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 9613/2012
24/1/2017
Reportable:
No
Of
interest to other judges: No
Revised.
In
the matter between:
MPHIKELELI
WINDVOEL
MAKHOBA
Plaintiff
and
MINISTER
OF
POLICE
Defendant
JUDGMENT
TEFFO.
J:
INTRODUCTION
[1]
The plaintiff sued the defendant for damages arising from his
unlawful arrest and detention by members of the defendant.
[2]
It is alleged that the members of the defendant were acting within
the course and scope of their employment with the defendant
when they
arrested the plaintiff, they arrested him without a warrant and they
did not have reasonable grounds to suspect that
the plaintiff was
involved in the commission of the robbery.
[3]
It was further alleged that the investigating officer in the matter
unreasonably opposed the plaintiff's release on bail with
improper
evidence and he was as a result thereof detained for an unreasonably
long period of time.
[4]
The allegations thereof are denied and the defendant specifically
pleaded that the plaintiff was arrested by his members who
are peace
officers, who reasonably suspected that he had committed a schedule 1
offence and that his arrest and detention were
lawful in terms of the
provisions of section 40(1)(b) of the Criminal Procedure Act 51 of
1977 (" the Act').
BACKGROUND
FACTS
[5]
On 20 July 2009 at midnight, the plaintiff was arrested by members of
the South African Police Service at Reitz for a charge
of robbery
with aggravating circumstances allegedly committed at Food Zone on 12
July 2009. He was subsequently detained at Reitz
police station until
on 30 March 2011 after he was found not guilty and discharged. He was
brought to court within 48 hours of
his arrest for his first
appearance.
[6]
As the arrest and detention of the plaintiff were not in dispute, the
onus
rested on the defendant to prove the lawfulness thereof.
Four witnesses, namely, Sgt Tumelo Victor Mzizi, Warrant Officer
(IN/0)
Lerata Daniel Mosia, Captain (Capt) Mosiuoa John Mokgethi, and
Lietenant (Lt) Jerome Malefane Tshabalala testified in support of
the
defendant's case while the plaintiff testified on his own and also
called a witness, Mr Themba Gift Mgwenya to prove his case.
THE
EVIDENCE
[7]
Mr Tumelo Victor Mzizi testified as follows: He is employed by the
South African Police Service and holds the rank of Sergeant.
In 2009
he held the rank of Constable and was stationed at Reitz police
station and was attached to the Detective Unit. On 12 July
2009 an
armed robbery was committed at Food Zone in Reitz. On that particular
day he was on standby and he became involved in the
matter. He
attended the crime scene and interviewed three African women who were
employees at Food Zone at the time and W/O Tshabalala
interviewed the
others. They informed him that they were in the shop when the robbery
took place. Four people were involved in
the robbery. Three of the
robbers, were inside the shop while one was outside. Among the three
robbers who were inside the shop,
they recognised the plaintiff as he
was well known to them. The plaintiff was involved in another matter
where a white man was
shot and killed in a hotel at Reitz and the
story was published. He was told that the plaintiff entered the shop
accompanied by
two others. The robbers approached Mr Calitz, the
owner of the shop, and demanded money from him. When he refused to
give them
money, they fired a shot which went past Mr Calitz and did
not hit anyone in the shop. He did not take statements from any of
the
three African women he interviewed as they told him that they
would not testify against the plaintiff because they were afraid of
him. Subsequent to receipt of the aforesaid information from the
employees of Food Zone and while he was still at the scene, he
also
received a phone call from an informer whose identity he would not
disclose for security purposes. The informer asked him
whether there
was any shop that was robbed in town. He responded by telling him
that Food Zone was robbed. He then told him that
the plaintiff was at
the time with three other people at lziko tavern. He overheard him
and the people in his company talking and
saying they had just robbed
a shop some money.
[8]
According to the information he gave, the informer only knew the
plaintiff among the group and the others were not known to
him. He
also told him that the group was planning to leave Reitz town. He
asked the informer to find out how were they travelling.
The informer
told him that he overheard them saying two of them were driving with
the plaintiff in his Mercedes-Benz motor vehicle
while the other one
was driving a Mazda. The description of the Mazda motor vehicle a
cream and white Mazda 323 with a GP registration
number, fitted that
of the vehicle mentioned by the employees at Food Zone. The informer
further told him that the two vehicles
were parked at the parking lot
of the tavern. He requested him to block the parking lot of the Mazda
to enable him to rush to where
it was. The informer blocked it from
the front and returned to the tavern.
[9]
He went with Constable (Const) Mthimkulu to lziko tavern. They parked
their motor vehicle some distance away from the tavern
and went
straight to where the Mazda was parked. The Mazda he found fitted the
same description he was given by the employees of
Food Zone. They
returned to the SAPS motor vehicle where he spoke to the informer
again and told him to remove his motor vehicle.
He also requested him
to alert them when the people in the company of the plaintiff were
leaving the tavern. At that time he also
requested his colleagues to
close all escape routes in the area while he sat in the motor vehicle
waiting for the group to leave
the tavern. At some stage the informer
phoned him and told him that the people in the company of the
plaintiff were leaving the
tavern. He then saw the plaintiff and two
others getting into the Mercedes-Benz and one of them in the Mazda as
he was told. The
tavern is at the township. The Mercedes-Benz driven
by the plaintiff took the direction to town and the Mazda took
another direction
further into the township. As he and Const
Mthimkulu were watching the two motor vehicles, he communicated with
his colleagues
through the radio telling them what was happening. He
requested them to focus on the plaintiff while him and Cst Mthimkulu
concentrated
on the one who was driving the Mazda.
[10]
They observed the person who was driving the Mazda. At that time
their motor vehicle was stationary. The Mazda drove off without
lights. It was in the night. He did not recall the time but said it
could have been around 22:00. They followed the Mazda, tried
to stop
it by flickering lights. The driver of the Mazda continued driving.
They eventually managed to stop him. They introduced
themselves to
him and showed him their employee identification cards. He introduced
himself to them as Mr Sibaya or Sibiya. They
informed him that the
motor vehicle he was driving fitted the description of a motor
vehicle that was involved in the robbery at
Food Zone. He did not say
anything to them. They also asked him why did he keep on driving when
they were stopping him. All he
said was that he was scared when he
realised that a police motor vehicle was stopping him. He was
arrested but charges against
him were later withdrawn. After the
arrest of the driver of the Mazda, he never played any role in the
matter. He did not investigate
the case. The investigating officer
was W/O Tshabalala.
[11]
He made the statement that appeared on pages 16 and 17 of the bundle
of documents. The statement is a summary of the evidence
he gave in
court and he used it in the criminal investigation.
[12]
The statement appears reads:
"Reitz Cas 50/07/09
I Victor Mzizi states under oath in
English.
1
I am a Constable in the South
African Police Service with Persal No. 7037775-1, stationed at Reitz
Detective Service with telephone
number (058) 863 8022.
2
On Sunday 2009-07-12 I was on
standby for investigations of new dockets. At about 12:15 I received
a phone call from my informer
who explained that he noticed a
suspicious Mazda 323 with registration number DSZ 988 GP (cream white
in colour) parked near lziko
tavern. I went to lziko tavern and
identified that vehicle, the Mazda 323 and it was the same vehicle
the informer explained about
and it was involved in an armed robbery
that occurred the same night at Stokkiesdraai (Food Zone)
supermarket.
3
I then traced the occupants at the
vehicle with Constable Mthimkulu. After a while then came an African
male person and drove that
car. We then chased that vehicle (Mazda
323) with Constable Mthimkulu and stopped it and we interviewed the
driver who identified
himself as Maphele Lindane Sibiya and arrested
him in Reitz Gas 50107/2009 (armed robbery) and explained him his
rights in terms
of the constitution (section 35 of Act 108 of 1996)
and he understand it and attached his signature into it."
[13]
Under cross-examination he testified that the three African women he
interviewed at Food Zone, told him that the plaintiff
was the one
among the robbers who took the money at Food Zone, and that they were
not the only people who were in the shop when
the robbery took place.
He was referred to the statements of Ms Shila Rosa Shawn, Ms Ntswaki
Motloung, Ms Anna and Ms Aletta Mokoena
on pages 47, 52, 55 and 59 of
the bundle of documents and asked whether he interviewed any one of
them. He testified that he did
not and that he did not take any
statements from any of the three African women he interviewed at Food
Zone as they were not willing
to make statements. He conceded that he
gave W/0 Tshabalala the information that the three African women gave
to him at the scene
that they knew the plaintiff, they saw him during
the robbery and that he was actively involved in the commission of
the robbery.
He also conceded that the Investigating Officer
interviewed all the witnesses and took their statements but said
those that he
himself interviewed were reluctant to give statements.
They told him that they cannot give statements because they did not
want
to testify in court.
[14]
When asked whether he did not find it necessary to interview the
witnesses whose statements he was referred to
supra,
he
testified that W/O Tshabalala had already interviewed them and taken
down their statements. Although he conceded that none of
the
employees at Food Zone at the time who made statements before W/O
Tshabalala could identify the plaintiff, he reiterated that
those he
himself interviewed, who were not willing to make statements,
identified him. He did not look at the video footage at
Food Zone.
When he got information from the informer, they were still gathering
information by interviewing people who were present
when the robbery
took place.
[15]
He conceded that in the statement that he made to the police for
purposes of a criminal investigation the plaintiff's name
was not
mentioned and that he was the only known suspect but explained that
the statement was made to explain Mr Sibiya's arrest.
[16]
He was referred to W/O Tshabalala's statements on page 97 of the
bundle, para 5 which reads:
"Volgens slagoffer die
verdagtes het met 'n geel Mazda voertuig gery, met GP
registrasienommers. Slagoffer het my die CCTV
gewys en verdagtes was
onbekend aan my. Verdagtes is gesoek in Petsana, dorp and omgewing
sonder sukses."
and
asked how was it possible for W/O Tshabalala to say that if he told
him that the plaintiff was identified by some of the witnesses.
He
testified that he was informed by the employees of Food Zone that the
plaintiff was involved.
[17]
He was also referred to para 10 of the statement which reads:
"Op 2009/07/20 om ongeveer
13:20 ek het vir Windvoel Makhoba gearresteer horn volgens Art 35 van
Wet 108196 gewaarsku. Die
rede hoekom die verdagte gearresteer is dat
hy het die verdagtes vervoer van die tavern af na Steynstraat toe."
and
it was put to him that W/O Tshabalala did not mention anything that
he said in his evidence in court about the plaintiff. His
response
was that he did not know.
[18]
When he was told that even the statement he made lacked critical
information about the plaintiff, he conceded but further said
the
plaintiff was subsequently identified at an identification parade. He
further testified that he was not involved at the identification
parade held in respect of the plaintiff. He did not know who
identified the plaintiff at the identification parade but just heard
that he was identified.
[19]
He was asked what role did the people he interviewed say the
plaintiff played during the robbery. He testified that as the
incident happened long time ago, he could not tell but what he knew
was that they told him that he was present. After the arrest
of Mr
Sibiya, he searched his motor vehicle and did not find anything.
[20]
W/O Lerata Daniel Mosia also testified. His evidence was briefly as
follows: He has been employed in the South African Police
Service for
21 years and holds the rank of W/O. In July 2009 he was stationed at
Reitz police station. He was among the group
of police officers
who received information about an armed robbery that was committed at
Food Zone. They left the police station
in different motor vehicles
to look for the motor vehicle that was involved. He corroborated the
evidence of Sergeant Mzizi that
they all went to different escape
routes. The motor vehicle he was driving was at the route between
Reitz and Petsana township.
They were told that the motor vehicle
that was involved in the robbery at Food Zone was parked at lziko
tavern and that the suspects
were inside the tavern with the
plaintiff. He then stopped his motor vehicle at Petsana crossing,
waiting for information from
police officers who were at the tavern
(referring to Sgt Mzizi who was with Cst Mthimkulu at the time). They
communicated through
a radio. Shortly thereafter he got information
that the people were leaving the tavern. Two of the suspects boarded
the plaintiff's
Mercedes-Benz which was driven towards town. He
observed a white Mercedes proceeding towards town after it went over
the railway
lines between Petsana township and town. He waited for it
until it reached the crossing where he was standing. At that time his
motor vehicle was stationary with its lights off. It was
approximately 23:30. He was at that time facing the road towards the
south. His motor vehicle was parked right at the stop street and
street lights were on.
[21]
The white Mercedes approached the stop street. He could see the
plaintiff driving it together with two passengers at the back.
He was
about 5 metres away from the Mercedes when it stopped at the stop
street. He knew the plaintiff prior to the incident as
they grew up
together. He let the Mercedes pass and then followed it. He could not
stop it at the time and arrest the suspects
because he was alone at
the time and did not have manpower. He followed the vehicle as it
proceeded into different streets, ziz,
Voortrekker, Zyder and Steyn
and at the same time he was giving his colleagues information about
what was happening and also requesting
their assistance in stopping
the vehicle. Eventually Capt Mokgethi arrived in a motor vehicle.
When the Mercedes reached Steyn
Street, it stopped abruptly, its rear
doors opened, two occupants alighted and it drove off. Capt Mokgethi
passed the Mercedes
on his way to him. He observed the two passengers
who alighted from the Mercedes-Benz going outside the road and
suddenly coming
back. They put something on the side of the road.
[22]
Upon Capt Mokgethi's arrival, he went with him to the two suspects,
they introduced themselves and told them that they were
investigating
a robbery case. They requested to search them. He searched Mr Themba
Ngwenya and Capt Mokgethi searched the other
one whose name he did
not recall. He found about R2 620,00 cash from the one he searched
and a cellphone. He then told him that
he was arresting him as a
suspect for the robbery at Food Zone and placed him in the vehicle he
was driving. After Capt Mokgethi
had finished searching the other
suspect, he was also placed in the vehicle he was driving. He walked
to the side of the road with
Capt Mokgethi where they saw the
suspects going after they alighted from the Mercedes driven by the
plaintiff. They found some
loose money thrown on the ground and two
firearms. They cordoned the scene to prevent it from being tempered
with. Capt Mokgethi
went to the police station and returned with hand
gloves in a plastic bag which he wore and wherein he put the
exhibits.
[23]
After they had arrested the two suspects, they went around looking
for the plaintiff in town and at the township. At some stage
they
found the plaintiff's Mercedes parked at his house. He was with Capt
Mokgethi, Const Mthimkulu, Sergeant Mzizi and W/O Tshabalala
at the
plaintiff's homestead. He did not search the Mercedes-Benz motor
vehicle because it was on the other side of the yard. Capt
Mokgethi
and W/O Tshabalala went into the house where they found a female
person who told them that the plaintiff was not there.
[24]
He was not involved in the arrest of the plaintiff.
[25]
Under cross-examination he corroborated the evidence of Sgt Mzizi
that he regarded the plaintiff as a suspect after he got
a report
from him on radio based on the information he received from Food Zone
that he was involved in the robbery together with
three others; they
were at the tavem and that a Mazda vehicle was involved. Capt
Mokgethi joined him after the two suspects had
alighted from the
Mercedes motor vehicle the plaintiff was driving and it had already
driven off. He had just passed the Mercedes-Benz
motor vehicle at the
time as they were driving in opposite directions. When the plaintiff
offloaded the two suspects from his motor
vehicle, he tried to stop
the motor vehicle. It did not stop. He explained that he and Capt
Mokgethi were driving two different
motor vehicles.
[26]
He was referred to two statements he made which appeared on pages 28
and 224 of the bundle. He conceded that there were discrepancies
in
the statements. On page 28 he stated that he looked for the
plaintiff's motor vehicle but did not find it. On page 224 he
mentioned
that the plaintiff's motor vehicle was found at his house
and the engine was still warm. He explained that after the arrest of
the two suspects who alighted from the plaintiff's motor vehicle,
they looked for the motor vehicle, they did not find it. They
found
it later at his homestead. He disputed that he was with Capt Mokgethi
when he or they tried to stop the motor vehicle. He
further explained
that in the other statement he omitted to write certain things.
[27]
He disputed that Mr Ngwenya, one of the suspects, was not offloaded
from the plaintiff's motor vehicle. He also disputed that
Mr Ngwenya
had problems with his motor vehicle, had a breakdown and was
offloaded from a truck which only gave him a lift. He disputed
that
Mr Ngwenya was at the time from Qwaqwa where he sold leather jackets
and had cash in the amount of R1 800,00 in his possession
which was
from the proceeds of his sales. He conceded that he approached him
with Capt Mokgethi, asked him questions and took him
to the police
station with the person who was in his company. He disputed that the
two suspects were later on asked about the money
and the firearms,
that Mr Ngwenya did not know the plaintiff prior to meeting him at
the police station and that the plaintiff
did not know the other
three suspects at all. Furthermore he disputed that the plaintiff did
not offload the suspects on that particular
day. He denied that him
and/or Capt Mokgethi did not stop or try to stop the plaintiff's
motor vehicle and that he did not run
away from the scene. He
disagreed that the plaintiff knew nothing about the allegations
against him until he was told by
his brother and his wife that the
police were looking for him.
[28]
Capt Mosiuoa John Mokgethi also testified. His evidence was as
follows: He had 27 years' service in the South African Police
Service
at the time of testifying and was stationed at Villiers police
station. He was also stationed at Reitz police station in
July 2009.
He was also involved in the investigation of an armed robbery which
took place at Food Zone on 12 July 2009. He was
also among the group
of police officers who were tasked to go and look for a Mazda motor
vehicle that was implicated in the robbery
that took place at Food
Zone in Reitz. He corroborated the evidence of W/O Mosia that they
overheard Sgt Mzizi talking over the
radio saying the suspects were
at lziko tavern at Petsana township, that they were about to leave
and they decided to close the
escape routes. Furthermore W/O Mosia
requested a backup after he said on radio that he was observing the
plaintiff's motor vehicle
leaving the township.
[29]
He further corroborated the evidence of W/O Mosia that he went to
assist him. He came down Steyn Street where he observed the
motor
vehicle driven by W/O Mosia following another motor vehicle which
stopped and two people alighted from it and it drove off.
He tried to
stop it but it did not stop. He flickered his motor vehicle lights,
the motor vehicle drove past his motor vehicle
and proceeded without
stopping. He did not follow it as he was on his way to assist W/O
Mosia who was alone and there were two
suspects who were on the
tarred road. He approached one of the suspects while W/O Mosia
approached the other one. He searched
one Mr Ndleleni and found money
in his possession which was over R10 000,00.
[30]
He also corroborated the evidence of W/O Mosia that he observed the
two suspects going to the side of the road after they had
alighted
from the plaintiff's motor vehicle, putting something down and then
returning to the road, that he went with W/O Mosia
to the spot they
saw the suspects going to and found some coins and firearms. They
asked them to whom the goods belonged and they
said they did not
know. They told them that the plaintiff dropped them off. They
immediately cordoned the spot where they saw the
two firearms and
coins and he rushed to the police station to fetch the exhibit boxes
where he put the exhibits and the two suspects
were taken to the
police station. They also called other police officers from the Local
Criminal Record Centre (LCRC) but they
did not come on that day.
[31]
After taking the suspects to the police station, they continued with
their investigation. They went out again to look for the
plaintiff.
They went to his house at Petsana township where they found his
Mercedes-Benz motor vehicle parked outside. They did
not find him.
They entered the house where they found an unknown female person who
told them that the plaintiff was not there.
They told her that they
were looking for the plaintiff and asked her to tell him to come to
the police station when he comes back
home. He was referred to the
statement he made to the police that appeared on page 29 of the
bundle. Paragraph 3 of the statement
reads:
"Die twee mans het gelyk asof
hulle iets op die grond neer sit en hulle
is
toe
benader en gevinsenteer. In een se besit (Nhlanhla Ndleleni)
was
daar klomp geld gekry te bedrag van R13 377-35 en die geld was
ingeboek in SAP 131325, en in ander een se besit ene (Themba
Ngwenya)
wat deur lnsp Mosia gevinsenteer was is die bedrag van R2 620-00
gekry en die geld
is
in SAP 13132612009 ingeboek. Ek toe na
die plek waar hulle afgelaai was agter Built It geloop waar ek ook
geld opgetel te waarde
van R69-00 en twee vuurwapens. Die geld was in
SAP 13132712009 en die twee vuurwapens SAP 13132912009 ingeboek vir
verdere ondersoek
en die gevonde eiendom
is
in die
teenwoordigheid van die twee verdagtes gevind. Die betrokke voertuig
was gesoek maar nie gekry nie en die mans het beweer
dat hulle op pad
was na die bank om die geld te gaan uittrek en hulle saam met Mnr
Makhoba was."
and
asked which motor vehicle was he referring to that they did not find
and what he meant. He explained that after they dropped
the two
suspects at the police station, they looked for the plaintiff's motor
vehicle in town and did not find it. They thereafter
proceeded to
Petsana township where they found it parked at his house.
[32]
He also attended the crime scene at Food Zone before they arrested
the suspects. Lt Tshabalala and Sgt Mzizi were among the
police
officers he found at Food Zone. He did not speak to any of them at
Food Zone. He knew the plaintiff prior to the incident.
He did not
observe any attempt by W/O Mesia to pull the plaintiff's motor
vehicle off the road. Sgt Mzizi only spoke to him when
they were
patrolling over the radio. He also never spoke to Mr Calitz.
[33]
He was not with W/O Mesia when he wrote his statement. His statement
was criticised as it was said to be similar to that of
W/O Mesia
appearing on page 224. He explained that he wrote his first. He was
also referred to Inspector Majoro's statement wherein
he stated that
on 12 July 2009 at about 23:00 he attended the crime scene at Food
Zone supermarket where he found two firearms,
magazine, ammunition
and cartridges. He disputed the contents thereof and reiterated that
Inspector Majoro only found three cartridges
at Food Zone and that at
that time the firearms were already booked in at the charge office.
[34]
He was referred to information that was used at the bail application
of the plaintiff that appeared on pages 134-135 of bundle
2-5 of the
case docket. Para 4.4 reads:
" Windvoel Mphikeleni Makhoba:
He transported Accused 1 and 2 from the tavern to Steyn Street where
the police arrested them
and he (Mr Makhoba) flee the scene. Police
followed him until his residential place where he parked his vehicle
and ran away. He
has been positively identified in the identification
parade. Witnesses and the people who were there at the shop are vety
traumatised
after the incident, psychologists have been consulted to
help witnesses and counsellors also consulted. Some of the people who
are traumatised are vety young. If he be released on bail, he will
intimidate witnesses as he knows all witnesses. Exhibits outstanding.
Cash, wristwatch and cellphone: R68 333-65 and value recovered R16
666-35."
He
disputed the information above and reiterated that the plaintiff was
not followed in his presence. He reiterated that at his
house, they
did not find him. He testified that he did not know who wrote the
above information.
[35]
He disputed that Mr Ngwenya was dropped by a truck where they
arrested him and not by the plaintiff, that he was from Qwaqwa
where
he sold leather belts and that the money they found in his possession
was from the proceeds of those sales. When he left
Food Zone, he had
already shown Inspector Majoro the three cartridges. He did not know
what Inspector Majoro did after he left.
He also disputed that he
handed the cartridges to him as stated in his statement as he could
be tempering with the evidence before
the experts arrived.
[36]
Lt Jerome Malefane Tshabalala also testified. He is a police officer
with 30 years' service in the SAPS, who was stationed
at Reitz police
station in July 2009. He was the Investigating Officer in a case of
armed robbery that took place on 12 July 2009
at Food Zone in Reitz.
On that particular day he was on standby. He received a call from a
colleague about the robbery incident.
He then drove to Food Zone.
Upon his arrival he found people in and outside the supermarket. He
enquired from those he found outside
as to what happened. Customers
who were at the supermarket before he arrived told him that four
people who were driving in a cream
Mazda 323 had just robbed the
supermarket. Subsequent thereto he walked into the supermarket and
spoke to the employees, one Ntsoaki
and also met Mr Calitz, the
owner. He also spoke to others who did not want to be identified as
they feared for their safety. He
asked the people he spoke to if they
were able to see the suspects. They informed him that among the three
people who entered the
supermarket, they could identify the
plaintiff. He did not take statements from them as they told him that
because they were afraid
of their safety, they did not want to get
involved. They even told him about a case that happened in town where
a white man was
murdered where the plaintiff was implicated. He also
interviewed other people amongst whom were some white customers. The
people
he interviewed whose statements he was able to take, were not
able to identify the plaintiff. Other police officers, e.g.,
Sgt Mzizi, Capt Mokgethi, etc were also at the scene and each of them
concentrated on their different roles.
[37]
The white customers who volunteered to identify the suspects said
although the names of the suspects were unknown to them,
they would
be able to identify them. After he had received that information Sgt
Mzizi approached him and told him that he had just
got information
that the plaintiff and two suspects were at Petsana township at lziko
tavern. Sgt Mzizi immediately rushed to the
place while he remained
at Food Zone. He contacted him and other police officers on radio
informing them that the suspects were
about to leave the tavern and
requesting them to close the escape routes. He went to the escape
route at the farming area, remained
there until he got information
from W/O Mosia that the plaintiff's motor vehicle had just passed
where he was. He got a report
which corroborated the evidence of W/O
Mosia and Capt Mokgethi that they observed two suspects alighting
from the plaintiff's motor
vehicle, it driving off immediately
thereafter, how they arrested the suspects. He corroborated the
evidence of the other witnesses
of the defendant that he proceeded
with Sgt Mzizi and others to the plaintiff's house to look for him
and they did not find him.
They left a message that he should come to
the police station.
[38]
He arrested the plaintiff on 20 July 2009 at the municipality offices
in Reitz.
[39]
He testified at the bail application of the plaintiff and opposed it.
He presented evidence that Mr Calitz and Ms Fourie pointed
out the
plaintiff at the identification parade, the information he obtained
from Sgt Mzizi, the employees of Food Zone and the
statements of W/O
Mosia and Capt Mokgethi. He confirmed the contents of the statement
he made for the arrest of the plaintiff and
indicated that the
statement was just a summary.
[40]
He disputed that he approached the plaintiff after his arrest and
told him that he would release him on bail if he turned state
witness
against the other suspects. He also disputed that he did not do his
job properly by not obtaining the statement of the
police officer who
took photos at the identification parade of the plaintiff as the
photos got lost. He further disputed that the
plaintiff was not
properly identified at the identification parade. He was adamant that
when he opposed the bail application, the
photos that were taken at
the identification parade were in the docket. He conceded that
several exhibits were missing in the docket
at the time he was
testifying. He disputed that he did not give the prosecutor correct
information when he opposed the plaintiff's
bail application.
[41]
He testified that although the driver of the Mazda was arrested at
some stage, he did not have information about him. He only
had
information about the plaintiff and the two suspects who alighted
from the plaintiff's motor vehicle. He was clear in his evidence
that
he only testified about what Sgt Mzizi told him in relation to the
plaintiff and the two suspects who were in his motor vehicle.
[42]
In relation to the statements made by W/O Mosia and Capt Mokgethi, he
testified that they wrote them down and he only commissioned
them. He
conceded that he was aware that the statements of W/O Mosia and Capt
Mokgethi differed with that of Inspector Majoro but
proceeded to
arrest the plaintiff and detained him. He did not find that their
discrepancies could be peculiar to the arrest of
the plaintiff. He
denied that he only arrested the plaintiff because he thought he gave
the two suspects a lift. He reiterated
that he had more information
he mentioned in his evidence to arrest the plaintiff. While he
conceded that there was no fingerprint
and ballistic evidence to link
the plaintiff with the robbery incident at Food Zone, he disputed
that he did not have sufficient
information at his disposal to give
to the court to oppose the bail application. He reiterated that he
provided the prosecutor
with the information he had at his .disposal
at the time, which he used to oppose the bail application by the
plaintiff.
[43]
He disputed that the plaintiff was not at Reitz on the day of the
commission of the robbery at Food Zone and that he left Reitz
to
Klerksdorp at 15:00 to do subcontracting work for sidewalks and
maintained that the information he obtained was that he was
seen
around Food Zone. He disputed that the plaintiff was on his way to
the police station on 20 July 2009 when he arrested him.
[44]
Under re-examination he testified that when he arrested the plaintiff
he did not have Inspector Majoro's statement. He further
testified
that he did not know what happened to the photos that were taken at
the scene and at the identification parade, he placed
them in the
docket.
[45]
Mr Mphikeleli Windvoel Makhoba (the plaintiff) also testified. His
evidence was briefly as follows: On 12 July 2009 he was
at his
homestead in Petsana from the morning until at 15:00 when he left to
Klerksdorp in his Mercedes-Benz motor vehicle to pursue
payments on
the sidewalks he did as a subcontractor in building and construction
work. The work was done between Klerksdorp and
Stilfontein. It was
not completed when he was arrested. It was given to another person.
[46]
He did not know anything about the robbery incident that took place
at Food Zone in Reitz. He only got information from his
brother that
Lt Tshabalala wanted to interview him about the incident that took
place at Reitz. Later in the afternoon his wife
phoned him asking him
why were the police looking for him. He only returned to Petsana on
18 July 2009 after he left on 12 July
2009. He went to the police
station to find out why did Lt Tshabalala want to interview him.
While he was on his way to the police
station at a distance of
between 15 to 20 metres, a motor vehicle emerged and stopped next to
him. Lt Tshabalala alighted from
the vehicle and requested to speak
to him. He also asked him where was he going. He told him that he was
on his way to him. Him
and Lt Tshabalala walked together to the
police station, and proceeded to his office. Lt Tshabalala informed
him that it appeared
there were people in the tavern who hired him to
transport them around, firearms and money were found where he
offloaded them with
his motor vehicle, the people were implicated in
the armed robbery that was committed at Food Zone in Reitz. He told
him that the
allegations were not true, he did not know the people he
was talking about and his motor vehicle was not available to
transport
people around on that day. He never understood him when he
told him that they should work together until he explained to him
that
he should agree with him that he dropped the people where the
firearms were found. He refused and told him that he would not make
a
statement about people or something that he did not see with his
eyes. Lt Tshabalala further told him that he was not implicated
in
the matter and that he should either agree to make a statement as he
proposed or else he was putting him under arrest.
[47]
He argued with him until Lt Tshabalala became angry. He called his
colleagues to lock him up. When they came to fetch him,
he told him
that he was going to spend a night in the cells and their discussion
was going to continue the following day. The following
day they did
not proceed with their discussion but he charged him. After his
arrest he was locked up in a holding cell alone and
later on, two
unknown arrestees joined him. The cell size was that of a single
garage (about 6 x 4 cm2). The toilets in the cells
were not
functioning, they were dirty. He slept that night in the cells with
dirty blankets and the condition thereof was not good.
He was not
properly fed and the following day he was given black tea with dry
bread. He was in the cells at Reitz police station
from Monday and
taken to court on Wednesday. He was denied bail and from court he was
detained at Bethlehem prison. He only met
his co-accused the
following week on Tuesday at Bethlehem prison when they were at the
police vehicles preparing to be transported
to court.
[48]
He saw his co-accused when they went for meals, they were at
different prison cells and he did not know when he saw them that
they
were his co-accused. He disputed that he was positively pointed out
at the identification parade and that photos were taken
at the
identification parade.
[49]
Lt Tshabalala testified at his bail application about a video footage
where the four of them appeared, that him and one Ndleleni
(his
co-accused) were positively identified at the identification parade,
that firearms and some cash were found from Ndleleni
and Ngwenya
(another co-accused) and that there were still firearms and cash not
recovered which could jeopardise the investigation
if they were to be
released on bail. He also stated that there were or could be
witnesses known to him or which he knew which he
could interfere
with. He specifically mentioned that he used his motor vehicle to
transport the suspects. He could not recall if
he ever said he flee
the scene as the incident happened long time ago. Lt Tshabalala
vehemently opposed his bail application.
[50]
The conditions at Bethlehem prison were the worst compared to those
at Reitz prison cells. Each and every new person who arrived
at
Bethlehem prison cells was robbed of his belongings. He had no choice
of getting along. There were a lot of gangsters. Prison
inmates and
local prisoners continued their rivalry in the cells. With the type
of gangsterism he had no choice but to affiliate
to one group
otherwise he would not be safe or own anything. His wife was pregnant
at the time of his arrest. She gave birth
while he was still in
custody. His wife struggled to register the child in his name.
Because of his financial constraints, she
could not reach him. His
brother tried to give his family financial assistance in his absence.
As a result of him being physically
unavailable at the site to
continue with the subcontracting work, it was stopped, given to
someone else and his company was deregistered.
He had a close
corporation. As a member of the close corporation, he had to bear
monthly operational costs. The municipality could
also no longer work
with him as his company and close corporation did no longer exist and
he did not have the necessary documents
that he used to have.
[51]
His arrest and detention affected him. He was hurt, felt bad about it
and his social life was seriously affected. People looked
bad at him
and where he was staying at the time, people distanced themselves
from him. He did not have any problems to go to Food
Zone for meals
before and after his arrest until one day while he was there with
friends and after placing an order, Mr Calitz
approached him and told
him that people were not happy to see him at the shop, he should make
a plan to leave and tell his friends
who came from Johannesburg to
come again. As he was surprised to hear all this, Mr Calitz suddenly
stood up, lifted up the top
of his tracksuit, showed him a firearm
which was on his stomach and said that time he bought a firearm. He
felt very bad because
eventually armed response security officers
arrived and they were refunded their money without being served and
ordered to leave
the premises.
[52]
Under cross-examination he disputed that he was pointed out at an
identification parade.
[53]
When asked whether he signed any contract that related to the
subcontracting work he testified he was busy with at the time
of his
arrest, he stated that he was given a letter of appointment but all
the documents got lost after his arrest. He could not
tell when did
he tell his legal representatives about the subcontracting work he
was busy with in Krugersdorp on the day of the
robbery at Food Zone
as he testified. He could also not explain why the evidence that he
lost a contract because of his arrest
was not pleaded, and not put to
the defendant's witnesses but only came up for the first time when he
testified. He also disputed
that the police came to his house to look
for him on 12 July 2009 as they testified. While he disputed the
evidence of Sgt Mzizi
that he saw him with the suspects at lziko
tavern, he could not tell why the evidence was not challenged when
Sgt Mzizi testified
and it was never put to him that he was at
Klerksdorp on that day. He could also not tell why it was never put
to Lt Tshabalala
that he transported the suspects in his motor
vehicle on the day of the robbery at Food Zone. He conceded that his
evidence about
the condition of the cells at Reitz and Bethlehem
police stations was not put to the police officers who testified on
behalf of
the defendant. He further conceded that he could not have
told his legal team that Lt Tshabalala arrested him after he refused
to make a statement that he transported the suspects with his motor
vehicle on the day of the robbery because the incident happened
long
time ago.
[54]
Mr Themba Gift Ngwenya testified that on 12 July 2009 he was at
Phuthaditshaba in Qwaqwa where he was selling leather jackets
and
bags. He left Bethlehem to Johannesburg at 20:00. He hitchhiked from
trucks. He left Qwaqwa in the company of Mr Nhlanhla Ndleleni.
On
their way when they reached Kesel, the motor vehicle in which they
were travelling's engine overheated. After counsel for the
plaintiff
told him that he was confusing him when he spoke about a motor
vehicle whose engine overheated while his initial evidence
was that
they were hitchhiking from trucks, he changed and said he now
remembered that they were travelling in Mr Ndleleni's motor
vehicle,
they took it to a BP Garage at Kesel and requested the petrol
attendants there to assist them to hitchhike. They told
them to hang
on there as there were trucks that came from time to time. At some
stage a truck approached. They spoke to the driver.
He drove with
them until at Reitz where he alighted and told them that he had to
fix something. They also alighted and waited for
him there.
[55]
As they were still standing there, a police van, travelling slowly,
pulled up with two policemen inside. It stopped next to
them and they
were asked why were they standing there. They told them that they
were on their way to Johannesburg and were waiting
for the driver of
the truck. The policemen requested to search them. In his pocket he
had cash in the amount of R1 800,00, a cellphone
and his identity
book. They told them that they were suspecting them. One of them
grabbed him with his trouser belt while the other
one also did the
same to Mr Ndleleni. They took them to the police van and drove with
them to the police station.
[56]
At the police station they wanted to know where they came from. They
told them that they were from Qwaqwa and on their way
to
Johannesburg. Other policemen also came who also asked them what was
happening. They were told that they were arrested as they
were
suspected of having committed a robbery at Reitz. They were never
shown firearms or money that was involved. He did not know
the
plaintiff in this matter. He met him for the first time at Bethlehem
prison.
[57]
Under cross-examination he disputed that an amount of R2 600,00 was
found in his possession. When he was confronted with a
letter from
his attorneys dated 5 April 2011 which appeared on page 178 of the
bundle and which stated that the amount of R2 600,00
found in his
possession at the time was still at the police station, he said the
incident happened long time ago and that he had
forgotten some of the
things. He also testified that Mr Ndleleni was also selling the same
items he was selling in Qwaqwa. He could
not tell why that evidence
was not put to the defendant's witnesses when they testified. He
disputed that W/O Mosia and Capt Mokgethi
were driving in two
different motor vehicles when they saw them. He was adamant that he
told the plaintiff's legal team that the
policemen who apprehended
them were driving one police motor vehicle. When asked what did he
say to the two policemen when they
told them that they suspected that
they were involved in the commission of the robbery at Reitz, he said
he did not remember the
response he gave. When he was reminded about
what he testified in his evidence-in-chief, he said he believed he
said that to the
police and that the incident happened long time ago,
he did not remember some of the evidence.
[58]
At some stage he testified that he told the police that they should
wait for the driver of the truck to confirm that he gave
them a lift
as he testified but they said they were on duty and did not have time
to wait for truck drivers. After he was told
that it was put to Capt
Mokgethi and W/O Mesia that they were only shown firearms at the
police station as against his evidence
that firearms were not shown
to them, he changed and said they were shown to them at the police
station.
[59]
The issues for determination are whether or not the arrest and
detention of the plaintiff were lawful and whether the opposition
of
his release on bail by Lt Tshabalala was unreasonable and based on
improper evidence.
[60]
The defendant pleaded that the arrest and detention of the plaintiff
were lawful in terms of the provisions of section 40(1
)(b) of the
Act.
[61]
Section 40(1)(b) of the Act provides that a peace officer may without
a warrant arrest any person who he reasonably suspects
of having
committed an offence referred to in Schedule 1, other than the
offence of escaping from lawful custody.
[62]
As was held in
Duncan v Minister of Law and Order
(1986]
2 All
SA 241
(A) at 248 the jurisdictional facts for a section 40(1)(b)
defence are the following:
62.1. The arrestor must be a peace
officer;
62.2. The arrestor must entertain a
suspicion;
62.3. The suspicion must be that the
suspect (arrestee) committed an offence referred to in Schedule 1;
and
62.4. The suspicion must rest on
reasonable grounds.
[63]
It is trite that the
onus
rests on the defendant to justify
the arrest. As Rabie CJ explained in
Minister of Law and Order and
Others v Hurley and Another
1986 (3) SA 568
at 589E-F:
"An arrest constitutes
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 should bear the onus of providing
that his action was justified in
law."
[64]
In
Zealand v Minister of Justice and Constitutional Development
and Another
[2008] ZACC 3
;
2008 (6) BCLR 601
(CC) at para
[25]
, the
Constitutional Court in affirming this principle said:
"It has long been firmly
established in our common law that every interference with physical
liberty is prima facie unlawful.
Thus, once the claimant establishes
that an interference has occurred, the burden falls upon the person
causing that interference
to establish a ground of justification. "
[65]
Van Heerden JA in
Duncan v Minister of Law and Order supra
at
249 said the following:
"If the jurisdictional
requirements are satisfied, the peace officer may invoke the power
conferred by the subsection; i.e.
he may arrest the suspect. In other
words, he then has a discretion as to whether or not to exercise that
power (of Holgate-Mohammed
v Duke E
[1984] 1 All ER 1054
HL at 1057).
No doubt the discretion must be properly exercised."
[66]
In
R v Van Heerden
1958 (3) SA 150
(T) the court held that the
suspicion must be reasonable and the test for such reasonableness is
objective.
[67]
The approach to be adopted in considering whether the suspicion was
reasonable is the one followed by Jones J in
Mabona and Another v
Minister of Law and Order and Others
1988 (2) SA 654
(SE) at
658E-H:
"It seems 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
only 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 sufficient 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 on
solid grounds. Otherwise, it will be flighty or arbitratory and not a
reasonable suspicion."
[68]
The evidence of Lt Tshabalala, the Investigating Officer in the armed
robbery case that was committed at Food Zone in Reitz
on 12 July 2009
and which led to the arrest of the plaintiff, was that he arrested
the plaintiff on 20 July 2009 on the basis of
the information that he
received from Sgt Mzizi, the statements of W/O Mosia and Capt
Mokhethi and the employees of Food Zone that
he interviewed on the
night of the incident. The crux of Sgt Mzizi's evidence was that
after receiving information that an armed
robbery was committed at
Food Zone, he attended the crime scene where he interviewed three
African women who told him that four
suspects were involved in the
robbery. Among them one was outside and the three who entered the
shop and demanded money from Mr
Calitz included the plaintiff. He was
clear in his evidence that all these three African women he
interviewed who implicated the
plaintiff in the robbery, knew him as
he was involved in another robbery in town where a white man was
murdered. They were not
willing to make statements to him as they
told him that they did not want to get involved to protect their
safety. While he was
still busy at the scene he received a call from
an informer whose identity he did not disclose for security reasons,
who asked
if there was any shop that was robbed in town. After he
confirmed to him that an armed robbery took place at Food Zone, the
informer
told him that he overheard the plaintiff talking to other
people in his company about a robbery that they had committed in town
and also planning to leave Reitz town. The informer spoke about three
people who were in the company of the plaintiff.
[69]
Sgt Mzizi immediately left Food Zone to Petsana township where he
found a Mazda motor vehicle which fitted the description
of the motor
vehicle that was implicated at Food Zone as a getaway motor vehicle
after the robbery. He was also able to see the
plaintiff and two
people in his company boarding his Mercedes-Benz motor vehicle while
the other suspect drove alone in the Mazda
motor vehicle. He
communicated with his colleagues over the radio telling them what was
happening and requested them to close all
the escape routes in the
area so that the suspects could be arrested and this led to the
arrest of the driver of the Mazda motor
vehicle and the two occupants
of the plaintiff's motor vehicle who were found in possession of some
money which was suspected to
have been the proceeds of the robbery
and two firearms which were found at a spot next to the road where
they were offloaded by
the plaintiff.
[70]
Lt Tshabalala testified that he was also at Food Zone on 12 July 2009
where he also interviewed the African women who also
gave him the
information they gave to Sgt Mzizi about the plaintiff's involvement
in the robbery. He corroborated Sgt Mzizi's evidence
that the African
women who implicated the plaintiff in the robbery did not want to get
involved. They refused to make statements
because they were afraid of
the plaintiff. Lt Tshabalala also testified that he was among the
police officers who looked for the
plaintiff in town after the arrest
of the three suspects who were in his company. They did not find him
but they eventually went
to look for him at his house in Petsana
where they found his motor vehicle outside in the yard. They also did
not find him after
they were told he was not there.
[71]
W/O Mesia and Capt Mokgethi 's evidence basically related to how they
arrested the two suspects who alighted from the plaintiff's
motor
vehicle and what they found in their possession after they searched
them. This also included the two firearms that were allegedly
found
at the spot where they went after alighting from the plaintiff's
motor vehicle.
[72]
The evidence of Sgt Mzizi was straight to the point. I found it to
have been logical, clear and credible. All the other police
officers
who testified after him corroborated his evidence in relation to his
communication with them on the night of the robbery
incident and how
they managed to apprehend the suspects who were in the company of the
plaintiff.
[73]
I also did not find any discrepancies in their evidence except to say
that their statements were criticised for not being as
detailed as
their
viva voce
evidence in court. I find that criticism
immaterial in that sight should not be lost that the statements they
made were only made
in respect of the criminal proceedings that were
instituted against the plaintiff and the suspects who were in his
company. The
defendant's witnesses were all clear in their evidence
that those statements were only a summary of what happened on the day
in
question. Statements made by witnesses to the police are not
subject to cross-examination like evidence that is presented in
court.
In any event the statements were not criticised for being
contradictory but for lack of details which came out when evidence
was
presented in court.
[74]
Sgt Mzizi's statement was criticised for not mentioning the name of
the plaintiff. He explained that he made the statement
in relation to
the arrest of the driver of the Mazda. It was clear from his evidence
that he was not involved in the arrest of
the plaintiff and that
after arresting the driver of the Mazda he never got involved in the
investigation of the case any further.
[75]
Lt Tshabalala's evidence was also criticised in that in his statement
he mentioned that he arrested the plaintiff for transporting
the
suspects. In response to this he stated that he had more information
about the plaintiff when he arrested him. A concern was
also raised
about the statement made by Inspector Majoro which was said to
contradict that of Captain Mokgethi and W/O Mosia with
regard to
where the two firearms, magazines and cartridges were found. He was
clear in his evidence that he was aware of the discrepancies
but did
not find them to be peculiar to the arrest of the plaintiff.
[76]
When Sgt Mzizi, Capt Mokgethi and W/O Mosia testified, their evidence
in relation to seeing the plaintiff on the night of the
incident in
the company of the three suspects who were later arrested, was not
challenged. It was also not put to them that the
plaintiff was not in
Reitz and/or Petsana township on the night of the incident. This
version was only put to Lt Tshabalala when
he testified and he
disputed it and reiterated that he got information from the employees
of Food Zone that the plaintiff was involved
in the robbery and that
he was seen by W/O Mosia and Capt Mokgethi offloading the two
suspects from his Mercedes-Benz motor vehicle
and immediately drove
off.
[77]
There was no explanation as to why the above version was not put to
Sgt Mzizi, W/O Mosia and Capt Mokgethi especially taking
into account
that Capt Mokgethi testified that he knew the plaintiff prior to the
incident, he saw him driving his Mercedes-Benz
motor vehicle being
followed by W/O Mosia, he tried to stop it but the plaintiff
proceeded driving. That evidence therefore remained
unchallenged. The
evidence of the plaintiff was wanting as against that of the
defendant's witnesses. He came up with new evidence
which was not put
to the defendant's witnesses. The evidence that Lt Tshabalala told
him that he was not implicated in the robbery
and influenced him to
tum state witness against the other suspects and that as a result of
his failure to do so, he had to spend
the night in the cells, was not
put to Lt Tshabalala when he testified. Further to this it was never
put to Lt Tshabalala that
the plaintiff was disputing that he was
pointed out at the identification parade. All what was put to Lt
Tshabalala was that he
was not properly identified at the
identification parade. His evidence did not correspond with his
pleadings. In his pleadings
he did not make any allegations relating
to the conditions of the cells in Reitz and Bethlehem prisons. The
evidence was also not
put to the defendant's witnesses. It was not
fully canvassed in the evidence presented in court. It therefore
stands to be rejected
( Minister of Safety and Security v
Slabbert
[2010] 2 All SA 474
(SCA) paras [11] and [12]).
[78]
In the same version no allegations were made in the particulars of
claim that the discretion to arrest the plaintiff was not
properly
exercised to enable the defendant to plead thereto and explain why it
was necessary to arrest him. Further to his evidence,
it only came up
for the first time when he testified that he lost a contract which he
was busy with in Klerksdorp at the time of
his arrest. No allegations
were made in his particulars of claim which related to his loss of
income as a result of his arrest.
[79]
While it was alleged in the plaintiff's particulars of claim that Lt
Tshabalala unreasonably opposed his application for bail
with
improper evidence, no facts were pleaded as to what improper evidence
the investigating officer relied upon when opposing
bail.
[80]
The evidence of Mr Themba Gift Ngwenya did not assist the plaintiff
in any way. He seemed to be confused about how the events
unfolded on
the night of his arrest. His evidence was riddled with contradictions
and he was not honest when he responded to questions.
It could not
have been a coincidence that money in excess of R2 600,00 and R10
000,00 was found in his possession and Mr Ndleleni
and that both of
them travelled from Qwaqwa where they both sold leather bags and
belts. The version that a police motor vehicle
stopped where him and
Mr Ndleleni were standing in Reitz, that they were asked what were
they doing there and the explanation that
they were on their way to
Johannesburg and were waiting for the owner of the truck, and that
they were never shown firearms and
money that was involved, was new
evidence which was not put to Capt Mokgethi and W/O Mesia. He
unreasonably disputed the evidence
which was not challenged when it
was presented by the defendant's witnesses, viz, the fact that an
amount of R2 620,00 was found
in his possession and that W/O Mesia
and Capt Mokgethi were driving in one police motor vehicle when they
approached them. His
evidence also changed as he went along. I found
his evidence to have been contradictory, confusing, incredible and
illogical and
rejected it as false and unreliable.
[81]
It is common cause between the parties that Lt Tshabalala is a peace
officer. From his evidence I find that he entertained
a suspicion
that the plaintiff committed a schedule 1 offence. He got information
that the plaintiff was seen among the robbers
in the shop and that he
was later seen with the suspects one of whom was seen driving in a
getaway motor vehicle. He also got information
that all the three
suspects who were with him were arrested after he offloaded two of
them on the road who were found in possession
of excessive amount of
cash. It cannot be said that he did not analyse and assess the
quality of the information at his disposal
critically, accepted it
lightly and did not check it where it was supposed to be checked.
From his evidence it is clear that after
examining the information at
his disposal, he allowed himself to entertain a suspicion which would
justify an arrest
(Mabona and Another v Minister of Law and Order
supra).
Sgt Mzizi had a lengthy cross-examination about the fact
that he could not disclose the name of the informer who gave him
information
that led to the arrest of the plaintiff and the suspects
who were in his company and that he also did not disclose the names
of
the employees of Food Zone who implicated the plaintiff in the
robbery and/or take their statements despite his explanation that
they did not want to be involved as they feared for their lives. Lt
Tshabalala was also told that despite the fact that there was
no
fingerprint and/or ballistic evidence to link the plaintiff with the
robbery, he continued to arrest the plaintiff. I find all
these
unnecessary in that what was required of him was to entertain a
suspicion and not to have information of sufficient high
quality and
cogency to secure a conviction of the suspect
( Mabona v Minister
of Law and Order supra, Minister of Law and Order v Kader
1991
(1) SA 41
(A)). The section requires suspicion and not certainty. It
can also not be said that the suspicion was not reasonable or based
on solid grounds.
[82]
Lt Tshabalala also had a lengthy cross-examination about the fact
that he unreasonably opposed the bail application of the
plaintiff
while he did not have evidence against him. His evidence was
criticised that he gave information that the plaintiff was
identified
at the identification parade while he was not, photos taken at the
identification parade were missing in the docket
and the police
officer who conducted the identification parade was not called to
testify. Further to this Capt Mokgethi was referred
to the
information that was used at the bail application of the plaintiff to
the effect that he transported the two suspects (Mr
Ngwenya and Mr
Ndleleni) to Steyn Street where they were arrested and he flee the
scene. Police followed him to his residential
place where he parked
his motor vehicle and ran away. He was positively identified at the
identification parade. Witnesses and
people who were at Food Zone at
the time of the robbery were very traumatised after the incident and
that if he was to be released
on bail, he would interfere with the
state witnesses.
[83]
Lt Tshabalala was clear in his evidence that at the bail application
of the plaintiff, the evidence that he was positively
identified by
Mr Calitz, the owner of Food Zone and Ms Fourie was not challenged.
At the time he presented that evidence all photos
taken at the
identification parade were in the docket. He did not know what
happened with them because when he testified in this
case they were
missing. The fact that he did not take the statement of the police
officer who conducted the identification parade
and that the police
officer was not called to testify is immaterial in that he did not
know when he testified that the photos were
missing. He was adamant
that the photos were in the docket when he gave evidence at the bail
hearing of the plaintiff. Strange
enough what was put to Captain
Mokgethi regarding the information that was used at the bail
application of the plaintiff was not
put to Lt Tshabalala who gave
evidence at the bail hearing.
[84]
I cannot find from Lt Tshabalala's evidence that he gave improper
evidence at the hearing of the plaintiff and unreasonably
opposed his
bail application.
[85]
In my view the four jurisdictional facts laid down in section
40(1)(b) of the Act and outlined in the
Duncan
matter
(
supra)
has been successfully established by the defendant. I find
that the arrest and detention of the plaintiff was justified under
the
circumstances.
[86]
In the result I make the following order:
86.1. The plaintiff's action is
dismissed with costs.
_____________________
M
J TEFFO
JUDGE OF THE HIGH COURT
OF SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
APPEARANCES:
For
the Plaintiff
J Viljoen
Instructed
by
Mills & Groenewald Attorneys
For
the Defendant
J A Motepe SC
Instructed
by
State Attorney, Pretoria
Date
of Judgment
24 January 2017