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[2017] ZAKZPHC 70
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Cebekhulu v Minister of Police and Another (4164/2015) [2017] ZAKZPHC 70 (14 November 2017)
IN THE HIGH COURT
OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
No: 4164/2015
In
the matter between:
OSCAR
SENZO
CEBEKHULU
PLAINTIFF
and
THE MINISTER OF
POLICE
FIRST
DEFENDANT
THE NATIONAL
DIRECTOR
OF PUBLIC
PROSECUTIONS
SECOND
DEFENDANT
JUDGMENT
Delivered on
14
December 2017
POYO
DLWATI J:
[1]
The question to be answered in this matter is whether the plaintiff
was unlawfully arrested and detained by the members of the
South
African Police Services (SAPS) and thereafter was unlawfully
further detained at the instance of the second defendant
from 14
February 2014 until 28 July 2014.
[2]
The plaintiff’s summarised evidence was that on the day of his
arrest, which has been established as 8 January 2014, he
was at his
uncle’s home in KwaNyamazane within Pietermaritzburg. Three
police officers arrived at his uncle’s house.
They knocked on
the door. He opened for them. They asked him if he was Senzo and he
confirmed that he was. They told him that they
were arresting him for
rape.
[3]
He asked them who was it that he was alleged to have had raped. The
police officer told him to wait for a certain Gogo. The
Gogo arrived
with a child. The plaintiff told them that he knew the Gogo but did
not know the child. He was accused of having raped
the child. He
testified that he knew the Gogo because he used to cut grass for her
at her house in exchange for payment which is
what the plaintiff did
for a living. He was then arrested and taken to a small police
station which was later established as Mountain
Rise Police Station.
[4]
At the police station, photographs of him facing different directions
were taken. He was also questioned by two police officers
about the
offence. He again told them that he knew the Gogo but not the child.
He also told them that he knew nothing about the
offence. It was
common cause that he made his first appearance in the
Pietermaritzburg Magistrate’s Court on 10 January 2014.
His
matter was adjourned to 14 February 2014 for a formal bail
application as the State was opposed to bail. On 14 February 2014,
after hearing the application, the learned magistrate refused bail.
Thereafter his matter was adjourned on numerous occasions.
All he
remembered was that he was told that the child needed counselling.
[5]
On about two occasions he was told by the learned magistrate that the
matter was being remanded for the final time but this
turned out not
to be so. He was only released on 28 July 2014 when he was told that
the charges against him were being withdrawn
and that he would be
phoned when needed. He later obtained legal advice and that is how
these proceedings were instituted.
[6]
Under cross-examination he testified that he did not know the Gogo’s
name even though he used to cut grass for her. He
conceded that there
was a school and a crèche close to his uncle’s house.
He, however, denied that some children used
to pass his uncle’s
house on their way to and from school or crèche. He testified
and was adamant that he did not
know the child who was the
complainant nor did he know her age. It only emerged under
cross-examination that the Gogo knew his
uncle’s house as she
had sold his uncle the house where they stayed.
[7]
He did not know how the police knew where he stayed. When it was put
to him that Mr G Roos, the investigating officer in his
case, would
tell the court that he was directed to the plaintiff’s house by
the child, his response was that he did not know
as he also did not
know the child. He conceded that it was strange that Mr Roos who did
not know him and where he stayed would
come to his house with a child
he did not know.
[8]
When
he was referred to the child’s statement, he denied that he
committed the offence he was charged with as he did not know
the
child. He testified that he did not see the child pointing at him on
the day of his arrest. He conceded that if the child referred
to him
as uncle it signified familiarity and respect. He did not know why
the child would point him as the person who committed
this offence
against her. He could not comment on the doctor’s findings on
the child as contained in the J88 report at page
8 of Exhibit ‘B’.
He conceded that he had no problems with the Gogo who was also the
child’s grandmother.
[9]
He
accepted that the police came to arrest him after the child and the
Gogo had gone to lay a complaint with the police. He also
testified
that he did not deny that the child had been sexually violated but
that it was not him who had violated the child. He
contradicted
himself immensely when he was asked whether his constitutional legal
rights were explained to him at the time of his
arrest. His final
answer in this regard was that it was possible that his legal rights
were explained to him but that he could
not remember. He conceded
that his rights must have been explained to him at Mountain Rise
Police Station if that is what Mr Roos
would say and that he had
signed the notice of rights form as appearing at page 24 of Exhibit
‘B’. He conceded that
he did not remember all the things
that happened on the day of his arrest as he was confused by what was
happening.
[10]
He
was adamant that at the time of his arrest, in the presence of his
uncle, he told Mr Roos that he knew the Gogo but not the child.
He
did not know how his lawyer could have written in a letter at page 12
of Exhibit ‘C’ that he had been arrested at
10H00 yet
when asked in court, he testified that he did not know the time of
his arrest. He conceded that it was possible that
at the time of his
arrest some community members were outraged about what he was alleged
to have done, hence Mr Roos opposed his
release on bail. He did not
know why the Gogo had intimated in her statement to the police that
she did not know the plaintiff
yet he used to cut grass for her.
[11]
He
conceded that when the charges were withdrawn against him on
28
July 2014 he was not told of the reasons but later changed this and
testified that some person in court, not dressed as a court
official,
told him that the charges were being withdrawn as there was
insufficient evidence against him. He also conceded that
the offence
he was accused of having committed was serious. He appreciated the
reasons given to him as to why bail was opposed
but testified that it
was not nice to be refused bail.
[12]
When
it was put to him that the police arrested him because of the charges
laid against him, the child and the Gogo’s statement
together
with the J88 report which were evidence against him, his response was
that he was not saying that the police were not
supposed to take him
to the police station but that he just wanted the truth, that he did
not commit this offence, to come out.
He was adamant that the learned
magistrate ought to have given him bail even though he could not
disagree with the learned magistrate’s
decision that he failed
to show exceptional circumstances for him to be released on bail.
That, in summary, was the plaintiff’s
case.
[13]
Mr
Roos testified on behalf of the first defendant. The gist of
his evidence was that after taking down the child’s
and the
child’s mother’s statements he went to collect the J88
report at the Thuthuzela Centre where the child had
been examined.
The doctor’s conclusion was that the findings on the
gynaecological examination were suggestive of blunt penetration
of
the hymenal orifice. After receiving the J88 report he had a
reasonable suspicion that a crime had been committed.
[14]
His suspicion was also solidified when the child pointed out the
plaintiff’s home, the plaintiff and the bedroom, which
happened
to be the plaintiff’s, where the crime had been committed. He
then arrested the plaintiff and explained his constitutional
legal
rights to him through Ms Sli Buthelezi, a social worker, who assisted
him as an interpreter.
He
testified that he had to get the plaintiff out of the scene as
community members who had gathered there were outraged when they
heard from the child’s mother what the plaintiff was alleged to
have done.
[15]
He testified that he did not need a warrant of arrest in order to
arrest the plaintiff as it was a schedule 6 offence and the
information he had was enough for him to effect the arrest. He denied
that the plaintiff had told him that he knew the Gogo but
not the
child. He conceded that he opposed bail as the victim was six years
old and the offence was quite serious and a schedule
6 offence.
Furthermore, the plaintiff and the child were neighbours and he was
therefore quite concerned about her safety if the
plaintiff was
released on bail. He was concerned that since the plaintiff’s
home was next to a school and a crèche,
there was a chance
that the offence might be perpetrated again. Furthermore, at that
stage he had not verified the plaintiff’s
address.
[16]
He
conceded that there were delays in having the child interviewed by
the prosecutor as the prosecutor responsible for this was
off sick
for some time. He further conceded that there were delays in having
the child attend counselling as the child’s
mother was not
available at times due to work commitments. Furthermore, the child’s
mother did not want the child to be interrupted
at school and
preferred that counselling be done during school holidays.
Furthermore, as the counselling was being done by psychologists
from
Child Line, there were delays due to the number of victims to be
counselled.
Mr Roos testified that after August 2014 he went on
long leave and thereafter retired from the SAPS, hence he had no
further dealings
with the matter.
[17]
Under
cross-examination, he denied that he had no basis to arrest the
plaintiff. In his view he had a strong case against the plaintiff
and
the matter was very serious hence even the learned magistrate refused
the plaintiff bail. He testified that he did not see
a need for him
to confirm with the child what he had been told by Ms Buthelezi that
the child had pointed at the plaintiff and
told her that it was him.
He testified that as at 14 February 2014 his investigations were not
complete as he still needed to obtain
the plaintiff’s SAP69 and
the counsellor’s report. That, in a nutshell was the case for
the first defendant.
[18]
Ms Thandeka Mkhize and Mr Thwala, both prosecutors in the
Pietermaritzburg Magistrate’s court, testified on behalf of
the
second defendant. Their evidence in brief was that there were no
inordinate delays in dealing with the plaintiff’s matter.
Ms
Mkhize, in particular, testified that it was important that the child
be interviewed by the prosecutor in order to assess whether
the child
would be able to narrate her story in court. Because of Ms Patty
David’s, the prosecutor assigned to interview
child
complainants in sexual offence matters, unavailability Ms Mkhize
ultimately interviewed the child on 24 April 2014. She concluded
that
the child needed counselling in order for her to be able to speak
easily about the offence. She also referred the matter to
a Regional
Court prosecutor for a decision.
[19]
Ms Mkhize testified that it took a while to obtain a counsellor’s
report as counselling was outsourced. Furthermore,
it would only be
the counsellor who determined how many sessions the child had to
attend before she could be declared as trial
ready. She further
testified that she could not apply for the charges to be withdrawn at
that stage as that decision would be premature
in the absence of the
counsellor’s report. She reiterated that in her view the child
was trial ready but needed counselling
in order to cope during the
trial. She testified that in her view the state had a strong case
against the plaintiff hence she could
not apply for the charges to be
withdrawn. She further testified that the charges being withdrawn
against the plaintiff did not
mean that the state did not have a case
against him.
[20]
She testified that, in any event, even if the matter would have been
transferred to the Regional Court it would have taken
more than six
months before a trial date would be allocated due to the backlog of
cases they had at the time. When asked as to
whether the plaintiff
could have brought another bail application if he felt that there
were delays, her response was that a new
bail application could have
been considered on new facts. She denied that the plaintiff’s
continued detention was unlawful
in any way.
[21]
Mr Thwala’s relevant evidence was that at no stage did he
advise the plaintiff that the charges were being withdrawn
against
him due to insufficient evidence. He testified that on 28 July 2014
he asked for an adjournment because Mr Roos’
note on page 76 of
Exhibit “B” intimated that the counsellor’s report
would be received during August 2014. He
conceded that the withdrawal
of charges was merely to allow the investigations to continue without
the plaintiff being deprived
of his liberty. That in a nutshell was
the evidence on behalf of the second defendant.
[22]
Section 40
(1) (b) of the
Criminal Procedure Act 51 of 1977
provides
‘that a peace officer may without warrant arrest any person-
whom he reasonably suspects of having committed an offence
referred
to in Schedule 1, other than the offence of escaping from lawful
custody’
.
Rape and or sexual offence against a child are some of the offences
listed under Schedule 1.
[23]
Mr
Shepstone
,
on behalf of the plaintiff, submitted that even though Mr Roos had a
reasonable suspicion that a crime had been committed he ought
to have
satisfied himself that he was arresting the right person when he
arrested the plaintiff and not only rely on the say so
of Ms
Buthelezi that the child told her that it was him and pointed at the
plaintiff.
[24]
Ms
Takchund
,
on behalf of the defendants, on the other hand submitted that there
was no fault that could be attributed to the first defendant
about
how and why the plaintiff was arrested. She submitted that Mr Roos
had satisfied all the elements for a lawful arrest in
that he had a
reasonable suspicion that a crime had been committed. She submitted
that the plaintiff’s claim ought to be
dismissed in this
regard.
[25]
I agree with Ms T
akchund’s
submission in this regard. In my view, Mr Roos had more than a
reasonable suspicion that the plaintiff had committed a crime. As
held in
Woji
v
Minister of Police
2015(1) SACR 409 (SCA) para 8 ‘the test is not whether a
policeman believes that he has reason to suspect, but whether, on
an
objective approach, he in fact has reasonable grounds for his
suspicion.’ The child’s statement, the child’s
mother’s statement, the J88 report and the fact that the child
had pointed out the plaintiff, his home and his bedroom were
clear
indications that one, objectively, can reasonably suspect that a
crime had been committed. In my view the first defendant
discharged
the onus of justifying the arrest of the plaintiff.
[26]
In so far as the wrongful detention, Mr
Shepstone’s
submissions were that at the very least the charges against the
plaintiff ought to have been withdrawn on 25 April 2014 as it was
clear on that date that the child needed counselling. He submitted
that it should have been determined on 24 April 2014, when Ms
Mkhize
interviewed the child that she was not trial ready. He submitted that
at the very least, the plaintiff ought to have been
released on 2
June 2014 when it was clear that the counselling would take some
time.
[27]
Even though Mr
Shepstone
did
not persist in argument about the period of detention from the date
when bail was refused on 14 February until 25 April or 2
June 2014, I
deem it necessary to address this period for the sake of
completeness. Mr Roos’s evidence was that for the purpose
of
the plaintiff’s bail application he submitted an affidavit
detailing the reasons why he was opposed to bail. These appear
at
page 10 of Exhibit “A”. Furthermore, since it was a
schedule 6 offence the onus was on the plaintiff to show exceptional
circumstances to justify his release. In his view the plaintiff
failed to show such exceptional circumstances hence bail was refused.
[28]
These must have been the learned magistrate’s reasons for
refusing bail even though this is not apparent on the record
of bail
proceedings which is part of Exhibit “B”. In any event
the plaintiff testified that he could not question the
magistrate’s
decision to refuse him bail. In my view, this is a concession that in
the circumstances of his case bail was
correctly refused. It is
further clear from Exhibit “B” that the plaintiff’s
matter was postponed from time to
time due to valid reasons in my
view.
[29]
As held in
Minister
of Justice and Constitutional Development & another v Zealand
2007 (2) SACR 401
(SCA) para 17, a ‘decision by a court to
remand an accused person in custody results in lawful detention of
that person if
there are justifiable reasons for such detention. Such
a decision needs to be set aside before lawful detention in terms
thereof
ceases.’ In my view, therefore, the decision of the
magistrate to refuse bail on 14 February 2014 was never set aside
until
28 July 2014. The successive remand orders issued by the
magistrate had the effect of rendering the plaintiff’s
detention
lawful.
[30]
In my view, the plaintiff’s detention was justified by
acceptable reasons that were provided especially by Ms Mkhize
when
she testified. In my view there was just cause for his detention. Ms
Mkhize’s evidence was clear in this regard. She
testified that
it was necessary to have the child interviewed by Ms David as she was
quite experienced in sexual offence cases.
Furthermore, that she was
a woman added an advantage to the girl child as she would have been
more comfortable to talk. However,
when it seemed that this was
causing a delay in dealing with the matter, she, Ms Mkhize,
interviewed the child and made certain
recommendations, one of which
was counselling.
[31]
I do not agree with Mr
Shepstone’s
submission that at that stage the charges ought to have been
withdrawn. As Ms Mkhize testified, it would have been premature to
withdraw the charges at that stage due to the fact that the report by
the counsellor would have informed her decision. In her view,
the
child was trial ready but she needed counselling to cope with the
event and to enable her to speak easily and assist her with
being
court familiar. She was therefore at that stage not sure how long it
would have taken to do the counselling and to obtain
the report.
[32]
She further testified that the initial report would have indicated to
her whether the child needed intensive counselling, in
which case she
would have withdrawn the charges. However, if it was a matter of one
or two further sessions, she would not have
withdrawn the charges. Ms
Mkhize therefore believed that there were no inordinate delays in
dealing with the plaintiff’s
case. I agree with her views.
Furthermore as testified to by Ms Mkhize and submitted by Ms
Takchund
one had to also consider all the issues raised at the bail
application before the charges could be withdrawn.
[33]
I also agree with Ms
Takchund’s
submission
that the rights of the child as provided for in s 28 of the
Constitution were of paramount importance and ought to have
been
prioritised in the circumstances. It is also important to note that
the child’s mother did not like that the child’s
schooling be interrupted due to the counselling, hence, as per page
74of Exhibit “B”, further counselling would have
to be
held during the July school holidays. This evidence was never
challenged. Furthermore, if the plaintiff felt that there was
an
inordinate delay in finalising his matter, he could have brought
another bail application on new facts, which was the delay.
This was
not done and it can be taken as a concession that there was no
inordinate delay.
[34]
In my view, the plaintiff failed to discharge the onus that his
continued detention was unlawful or wrongful and the second
defendant
has justified the plaintiff’s further detention.
Order
[35]
Accordingly, the plaintiff’s claim is dismissed with costs.
________________
POYO
DLWATI J
APPEARANCES
Date
of Hearing: 04 December 2017
Date
of Judgment: 14 December 2017
Counsel
for Plaintiff: Mr Shepstone
Instructed
by: Sanjeev Singh Inc.
Defendants:
Ms Takchund
Instructed
by: State Attorney Durban