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[2017] ZAGPPHC 160
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Pule and Others v Minister of Police and Another (17527/2013) [2017] ZAGPPHC 160 (10 February 2017)
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COUTR OF
SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
CASE NUMBER: 17527/2013
DATE: 10/2/2017
NOT REPORTABLE
NOT OF INTEREST TO OTHER
JUDGES
In the matter between:
PONTSHO EZEKIEL PULE
1
ST
APPLICANT
KARABO MARCUS
KHALA 2
ND
APPLICANT
EMMANUEL MATOME
PHOKU 3
RD
APPLICANT
And
THE
MINISTER OF
POLICE 1
ST
DEFENDANT
NATIONAL
PROSECUTING AUTHORITY 2
ND
DEFENDANT
JUDGMENT
KUBUSHl,J
INTRODUCTION
1.
At the commencement of trial I was informed that there
are three plaintiff's before me, namely, Pontsho Ezekiel Pule
("Mr
Pule"),
Karabo
Marcus
Khala
("Mr
Khala) and Emmanuel Matome Phoku ("Mr Phoku") ('the
plaintiffs/suspects"). The three plaintiffs, individually,
had
initially issued summons for damages against the Minister of police
("the first defendant") for unlawful arrest and
detention
and against the National Prosecuting Authority ("the second
defendant") for malicious prosecution. But, because
the cause of
action in the three matters was similar, the plaintiffs agreed to
consolidate their respective claims.
2.
The parties were at odds as to who should be the first
to lead evidence. The plaintiffs' contention was that in cases of
this nature
the
onus
is
on the defendants, and they should, as such, lead evidence first. On
the other hand, the defendants' submission was that in cases
where
there is a split
onus
the
plaintiffs must lead evidence first. I ruled that the defendants
should be first to testify.
3.
In addition to the pleadings two bundles of documents
were handed in court as Bundle "A" and Bundle "B".
Bundle
"A" consisted of Index: Criminal Court Record and
Bundle "B" consisted of Index: Docket. The parties provided
me with heads of argument in support of their closing arguments, for
which I am indebted.
MALICIOUS
PROSECUTION
4.
During the hearing of the matter the plaintiffs
abandoned their claims for malicious prosecution against the second
defendant. Only
the claim for unlawful arrest and detention against
the first defendant is pursued.
WARRANT
OF ARREST AND DETENTION
5.
The plaintiffs' allege in their particulars of claim
that they were unlawfully, alternatively maliciously arrested and
detained
without a warrant by members of the South African Police
Service acting within the scope of their employment with the first
defendant.
In its plea, the first defendant admits that the
plaintiffs were arrested and subsequently detained but avers that the
arrest and
detention was lawful. In its defence the first defendant
relies on a plea in terms of s 40 (1)
(b)
of
the Criminal Procedure Act 51 of 1977 ("the Act").
First
Defendant's Evidence
6.
In support of the claim for unlawful arrest and
detention, the first defendant called one of the police officers who
arrested and
detained the plaintiffs to give evidence. The police
officer's name is Detective Constable Moses Shimane Khoza ("Constable
Khoza"). Constable Khoza's evidence is mostly undisputed by the
plaintiffs.
7.
Constable Khoza testified that on 30 September 2011, he
was allocated a docket wherein an offence of armed robbery with a
firearm
was reported. In the docket there were two statements made by
Mr Ndlovu and Mr Sithole ("the complainants") who were
allegedly robbed at gun point by four black men. The two were
together at the time of the robbery. Mr Ndlovu was robbed of an
amount
of R27 000 and a cell phone and Mr Sithole was robbed of a
cell phone. The statements were drafted by uniformed officers at
Akasia
Police Station where the robbery was reported. On receipt of
the docket, Constable Khoza went to do a scene report at the scene
of
crime. In completing the scene report he interviewed the complainants
who, amongst others, gave him a description of their assailants
and
that of the motor vehicle the suspects were driving in. The
complainants told Constable Khoza that the alleged suspects were
driving a white VW Polo Playa motor vehicle ("the Polo")
and that the Polo did not have registration numbers that is,
it had
no number plates on it.
8.
According to the complainants there were four suspects
in the Polo. The first suspect, who was the driver of the Polo, was a
slender
man, light in complexion, the second suspect was brown in
complexion and also not too big - middle weight, the third suspect
was
dark in complexion and well built - he was wearing blue jeans and
a Nike cap, he was the one with the firearm and the fourth suspect
was dark in complexion and appeared to be older than the others.
Constable Khoza was also shown a video footage of the robbery.
The
footage was not very clear and he was only able to identify the dark
complexion man who appeared older than the other suspects.
9.
Constable Khoza testified further that on Friday 7
October 2011 at around 16h00, whilst on roll call reporting for duty,
he was
phoned by Mr Ndlovu who informed him (Constable Khoza) that he
(Mr Ndlovu) was travelling along the R80 road and noticed a white
\NI
Polo Playa, without number plates and with
the people who robbed him on 30 September 2011 in it. Constable Khoza
immediately excused
himself from roll call. He received another phone
call from Mr Ndlovu informing him that the Polo off ramped towards
Wonder Park
Mall ('Wonder Park") and that he (Mr Ndlovu) was
following it. Constable Khoza, in the company of Constable Petla
drove to
Wonder Park where it was said the suspects were. Whilst on
the way he radioed for backup which he received. Mr Ndlovu phoned him
again and informed that the Polo is parked in Wonder Park and that
the suspects have gone into the hardware store which was not
far from
the entrance of the Mall. On his arrival at Wonder Park, Mr Ndlovu
was waiting for him. Mr Ndlovu showed him the Polo;
it was white and
did not have registration numbers. As they were waiting, three black
men came out of the hardware store. Mr Ndlovu
pointed at the three
men and told him that they were the people who robbed him. The three
men walked towards the Polo and the man
who is light in complexion
and who was the driver went to talk to another man who
was
in a
green VW Caravella motor vehicle parked
nearby. Constable Khoza's evidence is that he looked at the men
pointed out to him, analysed
the information and came to a conclusion
that the three men fitted the description given to him by Mr Ndlovu
and as corroborated
by Mr Sithole on 30 September 2011. The man who
was well built was still wearing the Nike cap. Based on this
information the plaintiffs
were arrested together with the driver of
the green Caravella. They were taken to Akasia Police Station where
they were detained
until their appearance in court on Monday 10
October 2011.
The
Issue
10.
The issue to be decided is whether, under the
circumstances stated by the first defendant in its evidence, it can
be said that the
arrest and detention of the plaintiffs is lawful.
The
Law Applicable
11.
It is trite that in order to succeed in a defence based
on s 40 (1)
(
b)
of
the Act, that is, to prove that the arrest was lawful, the defendant
is required to establish the following jurisdictional facts:
(a)
that
the arrestor is a peace officer;
(b)
that
the arrestor in fact entertained a suspicion;
(c)
the
suspicion which he held was that the suspect (arrestee) had committed
an offence which is referred to in Schedule 1 (not being
the offence
of escaping from lawful custody); and
(d)
that
the suspicion rests on reasonable grounds.
12.
It is common cause between the parties that the
plaintiffs were arrested by a peace officer, Constable Khoza, on 7
October 2011
and detained until 10 October 2011 when they appeared in
court; the plaintiffs were arrested for the offence of armed robbery
that
form part of the offences in Schedule 1 of the Act. The parties
are, however, not agreed about whether at the time Constable Khoza
arrested the plaintiffs he held a suspicion that rested on reasonable
grounds.
13.
The test to be
applied in determining whether a peace officer "reasonably
suspected" a person having committed an offence
within the ambit
of section 40 (1)
(b)
is
objectively justiciable. The question is not whether a peace officer
believed that he or she had reason to suspect, but whether,
on an
objective approach, he or she in fact had reasonable grounds for his
or her suspicion. The test is that of a reasonable man
with the
knowledge and experience of a peace officer based upon the facts and
circumstances then known to the arresting peace officer.
[1]
Argument
by the Plaintiffs
14.
The plaintiffs' argument is that there is no independent
credible evidence upon which the arresting officer, Constable Khoza,
relied
on when he arrested the plaintiffs. The submission is that, at
the time of arrest, Constable Khoza had the following evidence before
him:
14.1.
a
statement by Mr Ndlovu dated 30 September 2011;
14.2.
a
Statement by Mr Sithole dated 30 September 2011;
14.3.
an
investigating diary with entries made on 30 September 2011;
14.4.
a
scene report; and
14.5.
a
video footage which was not clear enough.
15.
According to the
plaintiffs, Constable Khoza should not have relied on these documents
because the documents do not disclose the
description of the alleged
suspects nor that of the motor vehicle involved in the robbery. As
regards the description of the suspects,
all the documents except the
video footage mentions only that Mr Ndlovu was robbed R27 000 by four
unknown black men. As regards
the motor vehicle there are differences
in that Mr Ndlovu's statement does not mention any motor vehicle; the
investigation diary
of Constable Khoza describes the motor vehicle as
a Polo Classic and the scene report does not mention that the white
Polo Playa
did not have registration numbers, so it is argued. Based
on the aforementioned, the contention is that a reasonable police
officer
faced with the same evidence would not effect an arrest for,
such evidence is scanty and would have necessitated Constable Khoza
to investigate the matter before arresting the plaintiffs. This
submission in my view is misleading.
16.
The test in
determining whether a peace officer "reasonably suspected"
a person having committed an offence within the
ambit of section 40
(1)
(b)
is that
of a reasonable man with the knowledge and experience of a peace
officer
based
upon the facts and circumstances then known to the arresting peace
officer
.
[2]
(My
emphasis)
Therefore,
the arresting officer must have had information establishing
reasonable grounds for the suspicion immediately prior to
the arrest.
17.
In this instance, I do not understand Constable Khoza to
be saying that he arrested the plaintiffs on the basis of the
information
stated in paragraph [14) of this judgment. My
understanding of Constable Khoza's evidence is that he arrested the
plaintiffs on
the basis of a pointing out by Mr Ndlovu. Constable
Khoza had earlier, on 30 September 2011, been given the description
of the
suspects and the motor vehicle they were using, by the
complainants. On the day the suspects were arrested, they were
pointed out
to him by Mr Ndlovu. He (Constable Khoza) assessed the
information at his disposal and came to the conclusion that the
people and
the motor vehicle pointed out to him fitted the
description he was provided on 30 September 2011 and he then arrested
the suspects.
That is how I understand his evidence.
18.
In argument before me, the plaintiffs objected to the
evidence of Constable Khoza, that the suspects were pointed out to
him by
Mr Ndlovu, on the basis that it is hearsay evidence and
inadmissible. The contention is that to the extent that the first
defendant
did not lead the evidence of Mr Ndlovu, the person who saw
the plaintiffs and called Constable Khoza and also pointed out the
plaintiffs
and the Polo to Constable Khoza, Constable Khoza's
evidence to that effect, is hearsay. The evidence is not before the
court as
the person on whose credibility the probative value of the
eviden.ce depended was not called to give evidence. Without this
evidence,
Constable Khoza's evidence fails to establish suspicion
resting on reasonable grounds, so the argument goes.
19.
I do not agree
with the plaintiffs' submission that the evidence of the pointing out
should be rejected as inadmissible merely because
it is hearsay
evidence. The arresting officer is said to be entitled to consider
all the information, even based on hearsay, and
does not have to be
convinced that there was in fact evidence proving the guilt of the
arrestee beyond reasonable doubt.
[3]
20.
It is, thus, my view that hearsay evidence at this stage
would be allowed because the peace officer need only harbour a
suspicion
of the offence having been committed. Section 40 (1)
(b)
of the Act does not require certainty, only a
reasonable suspicion. A suspicion inherently involves an absence of
certainty or adequate
proof. A suspicion can be reasonable despite
there being insufficient evidence for a
prima
facie
case. The peace officer is thus
entitled to avail himself/herself of any information at his/her
disposal even though it is hearsay
in nature. He/she does not have to
be convinced that there is in fact evidence proving the guilt of the
arrestee beyond reasonable
doubt. Constable Khoza was thus correct to
have considered such information which was at his disposal. In his
evidence he says
based on this evidence (hearsay evidence) he looked
at the suspects pointed out to him, analysed that information and
concluded
that the persons he was shown fit the description of the
suspects as was given to him by Mr Ndlovu and Mr Sithole on 30
September
2011. The suspects were also driving in a white Polo Playa
without registration numbers. We know that Constable Khoza was given
the description of the suspects and the motor vehicle they used
because he testified as such, and that evidence was not controverted
by the plaintiffs. In fact all the aforesaid evidence of Constable
Khoza was never disputed by the plaintiffs.
21.
The plaintiffs' further submission that only the hearsay
evidence contained in the statements of the complainants should be
accepted
by this court is not correct. Hearsay evidence whether oral
or written remains hearsay evidence. A court cannot accept one and
reject the other. The evidence contained in the statements of the
complainants and the one that was orally related to Constable
Khoza
is hearsay evidence; all that evidence was at the disposal of
Constable Khoza and he was entitled to make use of it.
22.
I am satisfied that the information at the disposal of
Constable Khoza at the time he arrested the plaintiffs was sufficient
for
him to form a suspicion and that the suspicion rested on
reasonable grounds. In my view, the actual information that Constable
Khoza held prior the arrest of the plaintiffs is:
22.1.
Firstly,
the description of the suspects and the motor vehicle they were using
as provided to him by the complainants on 30 September
2011.
22.2.
Secondly,
the suspects were pointed out to him by Mr Ndlovu as they exited the
hardware store. The evidence of Constable Khoza that
the suspects
exited the hardware store together is corroborated by the evidence of
Mr Pule and Mr Khala who testified that they
all went into the
hardware store together and came out together. This is against what
was put to Constable Khoza under cross-examination
that only one of
the suspects went into the hardware store.
22.3.
Thirdly,
the plaintiffs were on the day they were arrested driving a white
Polo Playa without registration numbers thus fitting
the description
of the motor vehicle given to him on 30 September 2011.
On the day of the arrest the Polo was also pointed out to him by Mr
Ndlovu.
I have to accept that the Polo which Constable Khoza saw at
Wonder Park did not have registration numbers since his evidence was
never challenged by the plaintiffs. It was not put to Constable Khoza
that the Polo that the plaintiffs were driving in on the
date they
were arrested had registration numbers.
22.4.
Lastly,
before arresting the plaintiffs, Constable Khoza analysed the
information at his disposal and satisfied himself that the
persons he
saw exiting the hardware store fitted the description that was given
to him on 30 September 2011. For instance, the
dark complexion man of
average build was said to have been wearing a Nike cap on the day of
the robbery and even on the day he
was arrested the evidence of
Constable Khoza is that he was wearing a similar cap. He did not just
arrest the suspects when they
exited the hardware store. He waited
for them to get into the Polo and drive off before arresting them.
This, in my view, ties
the suspects to the Polo. This information is
further corroborated by the evidence of the plaintiffs who confirmed
that besides
Mr Pule's cousin Harry, Mr Pule is the designated driver
of a white Polo Playa and that on the day they were arrested Mr Pule
was
the driver thereof. Mr Pule in his evidence
also
confirmed
that on
30
September 2011 he was driving the Polo.
These,
in my view, are facts that establish that the information that was at
Constable Khoza's disposal at the time of arrest was
sufficient to
raise a reasonable suspicion.
MALICIOUS
ARREST
23.
In a claim based
on malicious arrest it has been held that it is essential for the
plaintiff to allege and prove that the defendant
acted maliciously
and without reasonable and probable cause.
[4]
24.
In this instance, the plaintiffs in their particulars of
claim do not allege that there were no reasonable and probable
grounds
for the arrest. The evidence led by the plaintiffs does not
establish malice and/or that there was no reasonable and probable
cause
for the arrest, as well. Consequently the plaintiffs' claim
based on malicious arrest must fail.
UNLAWFUL
DETENTION
25.
Once the claim for unlawful arrest falls away the claim
for unlawful detention must also not succeed.
COSTS
26.
The costs order must follow the successful party. I am
not inclined to agree to the plaintiffs' submission that they could
not proceed
with the claim for malicious prosecution because they
were furnished with the required information (the two bundles) ten
minutes
before the hearing of this matter. There are rules of court
in place to assist litigants to compel their opponents to provide
them
with documentation and/or information they require. The
plaintiffs were entitled to follow such a route, having not done so
they
cannot be heard to be complaining as they want to do.
ORDER
27.
In the circumstances I make the following order:
27.1.
The
plaintiffs' claim for unlawful arrest and detention is dismissed with
costs.
27.2.
The
plaintiffs are ordered to pay the costs for the claim for malicious
prosecution up to the stage when the claim was
abandoned.
E.M.
KUBUSHI
JUDGE
OF THE HIGH COURT
APPEARANCES
HEARD ON THE: 05 DECEMBER
2016
DATE OF JUDGMENT: 10
FEBRUARY 2017
APPLICANT'S
COUNSEL: ADV. T. MORETLWE
APPLICANT'S
ATTORNEY: MAHLANGU MASHOKO INC.
RESPONDANTS'COUNSEL: ADV.
M PASWANE
RESPONDANTS'ATTORNEY:
STATE ATTORNEY
[1]
See Minister of Law and Order
v
Hurley and Another
1986
(3) SA 568
(AD) at 579F - 5801.
[2]
See Minister of Law and Order v Hurley and Another
1986 (3) SA 568
(AD) at 5801.
[3]
See Minister of Law and Order v Kader
1991 (1) SA 41
(A) at 50H.
[4]
See Thompson & Another v Minister of Police & Another at
373F - H.