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[2016] ZAECMHC 4
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Dlokolo v Minister of Safety & Security (426/2014) [2016] ZAECMHC 4 (10 March 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, MTHATHA)
CASE
NO: 426/2014
DATE:
10 MARCH 2016
In
the matter between:
KHONAYE
DLOKOLO
..............................................................................................................
Plaintiff
And
MINISTER
OF SAFETY &
SECURITY
...............................................................................
Defendant
Heard
on: 14 October 2015
Delivered
on: 10 March 2016
JUDGMENT
MAKAULA
J
:
A.
Introduction
:
[1]
The plaintiff in his amended particulars of claim dated 2 October
2014 claimed the following damages arising out of his arrest
on 19
July 2013 by the defendant’s employees:
“
10.
As
a result of the aforegoing Plaintiff suffered damages in the sum R450
000.00 (Four Hundred Fifty Thousand Rand) calculated as
follows:
10.1
Unlawful Arrest
= R100 000.00.
10.2
Unlawful Detention
= R100 000.00.
10.3
Contumelia, shock and trauma
= R100 000.00.
10.4
Unlawful Assault
= R150 000.00.
Total
= R450 000.00.”
[2]
The defendant in its plea denies liability. The plaintiff
called the evidence of three witnesses viz, (a) Khonaye Dlokolo
(Khonaye)
,
the plaintiff; (b) Galifike Dlokolo
(Galifike)
,
plaintiff’s father; and (c) Mzameni Bekedana
(Mzameni)
.
[3]
The plaintiff testified that on 19 July 2013 while at Mamela Taxi
Rank, in Mthatha, where he works as a taxi driver, he was
arrested by
the members of the defendant for possession of an unlicensed
fire-arm. He testified that the police officers
arrived in 3
motor vehicles, present amongst them was Mabhiza Mkhondo an
acquaintance. The police handcuffed assaulted him
by kicking
him with feet, strangling him and assaulting him with open hands.
He sustained injuries on his wrists as a result
of tight handcuffs.
The police enquired about a fire-arm. He told them that it was
at Sabe locality. The police
put him inside the vehicle and
proceeded to Sabe locality to look for Mzameni who had bought the
fire-arm. On arrival at
Sabe locality they could not find
Mzameni. The police left a message that Mzameni should bring
the fire-arm to the police
station.
[4]
The plaintiff denies that he went to his home to retrieve the
fire-arm as alleged by the defendant. He states that he
did not
have the fire-arm in his possession nor did he have it at his place
but the fire-arm was with Mzameni because he had bought
the fire-arm
on behalf of Mzameni.
[6]
By way of background, the plaintiff testified that he was approached
by Mzameni to organise him a fire-arm. He approached
Mabhiza
who charged a sum of R1000.00 for the fire-arm. On a certain
day he proceeded with Mzameni to Mabhiza to get the
fire-arm.
On arrival Mzameni gave him a R1 000.00 which he in turn handed to
Mabhiza. Mabhiza produced a fire-arm and
gave it to Mzameni and
they went back to their locality. He denied that he saw the
fire-arm. It was handed to Mzameni
by Mabhiza.
[7]
Subsequent to his arrest he was detained from Friday until he was
released on Monday. Later on the case was withdrawn
against him
by the police.
[8]
The evidence of the plaintiff was less convincing and not
believable. For example, he testified that he was assaulted
by
the police when they arrested him at Mamela taxi rank. Under
cross-examination he changed to say that the police did not
assault
him at the time of arrest but stopped next to Decolleen on their way
to Sabe locality and assaulted him. He testified
that at Mamela
taxi rank, he readily told the police that he knew about the fire-arm
and that it was with Mzameni at Sabe locality.
Strangely, the
police at Decolleen assaulted him telling him to tell the truth.
When cross-examined about this, the plaintiff
could not explain why
the police were asking for truth because at the time they were on the
way to fetch the fire-arm from Mzameni.
This too is not
convincing.
[9]
Furthermore, as shall be seen below, the evidence of the plaintiff
differs remarkably from that of Mzameni as to how the fire-arm
came
to the latter’s possession. The plaintiff testified that
he never handled nor saw the fire-arm because Mabhiza
gave it to
Mzameni. That evidence is in direct contrast with the evidence
of Mzameni that the plaintiff gave him the fire-arm
when they were
inside the car on their way home.
[10]
Mzameni testified that during 2013 he approached the plaintiff asking
him to arrange a fire-arm for him. The plaintiff
informed him
that he must come to his place. On his arrival the plaintiff
told him that he had sought a fire-arm from Mabhiza
for an amount of
R1 000.00. They both travelled to Mabhiza’s place.
He gave the R1 000.00 to the plaintiff.
On arrival at Mabiza’s
home the plaintiff handed over the money to Mabhiza. On their
way home, the plaintiff telephoned
him asking whether he still had
the fire-arm to which he responded yes. He asked the plaintiff
what the problem was.
The plaintiff told him that there was a
problem at his locality. He went to the plaintiff’s home
in possession of the
fire-arm. The plaintiff was not at home.
He handed over the fire-arm to the plaintiff’s father. He
confirmed
that earlier on he spoke to the police who were enquiring
about the fire-arm. He denied that he received the fire-arm
from
Mabhiza but as earlier stated he got it from the plaintiff.
He insisted that the plaintiff was not telling the truth that
he did
not see the fire-arm. He further testified that he knew at the
time when he obtained the fire-arm that it was an unlicensed
fire-arm. He remained adamant that he gave the fire-arm to the
plaintiff’s father and not to the police.
[11]
Galefike testified that on a certain day he was at his home when he
received a phone call from the plaintiff saying that he
had been
arrested by the police. Immediately thereafter Mzameni arrived
at his home and left a fire-arm with him. The
following morning
he went to Central police station Mthatha, and left the fire-arm with
the police who were present at the charge
office or Community Service
Centre. He denies that the fire-arm was retrieved by the
plaintiff in the company of the police
at his home from a mealie
tank. He does not know the police officer who took the fire-arm
from him. No statement was
obtained from him.
[12]
Under cross-examination he could not explain why he did not tell the
police that the fire-arm was from Mzameni. He further
could not
explain why he did not tell Mzameni to take the fire-arm to the
police himself. He says he never thought about
telling Mzameni
that. He conceded that he made a mistake for not doing so and
for not saying to the police that the person
who knew about the
fire-arm and who brought it to him was Mzameni so that the plaintiff
should be released. He further could
not proffer any reasonable
explanation as to why he did not make it clear to the police or seek
the release of the plaintiff on
the basis of the fire-arm being
brought by Mzameni. As expected, he did not know why an entry
was made on the occurrence
book. The plaintiff did not call any
further evidence.
[13]
The defendant called the evidence of Lusanda Olive Dyani who
testified that during the period she worked as a detective at
Mqanduli police station. On 19 July 2013 which was a Friday she
left Mqanduli early in the morning with Captain Soqinase
and
Constable Maxhayi. They were pursuing information in connection
with the robberies which had occurred. She was
pursuing leads
about a fire-arm which was used in one of the robberies.
[14]
Mabhiza Mkhondo who informed her that one of the fire-arms involved
in the robberies was with the plaintiff. Mabhiza
told them that
the plaintiff was working as a taxi driver at Mamela taxi rank in
Mthatha. They proceeded there looking for
the plaintiff.
They found the plaintiff at the taxi rank. Galifike was also
present at Mamela taxi rank. They
were travelling in one motor
vehicle which was a Navara bakkie. They questioned the
plaintiff about the fire-arm. He
told them that it was at his
home. They proceeded to his home. The father of the
plaintiff was also present.
On arrival at his home, the
plaintiff led them to a mealie tank which was in his homestead. The
plaintiff took out a plastic bag
from the mealie tank which contained
the fire-arm and gave the fire-arm to Captain Soqinase. The
plaintiff could not produce
a licence to possess that fire-arm.
They then arrested him. She denied that they assaulted the
plaintiff at any stage
up until his detention. She testified
that there could not have been a reason to assault him especially
because he was co-operating
with their investigations. She
learnt at a later stage that the case against the plaintiff was
struck off the roll due to
the fact that there was no ballistic
report. She conceded under cross-examination that she did not
mention in her statement
that she was with Constable Maxhayi.
It was brought to her attention that on the investigating diary,
Captain Soqinase wrote
that the fire-arm was booked on 20 July 2013.
She testified that, that could have been an error on the part of
Captain Soqinase.
She was further asked about what was
contained in the warning statement of the plaintiff.
[15]
She further testified that it was a mistake that it was not appearing
on her statement and even on the statement of Captain
Soqinase that
plaintiff’s father was present at Mamela taxi rank. She
confronted about the fact that she, as well as
Captain Soqinase, did
not mention in their statements that the serial number on the
fire-arm was erased. To this, she said
it was a mistake because
the fire-arm’s serial number was erased. Apart from what
has been highlighted above nothing
turns on her cross-examination.
[16]
It is improbable that Galifike would involve himself by taking an
unlicensed fire-arm, which he knew nothing about, especially
that his
son had been arrested in connection with. It boggles the mind
why he did not go to the police with Mzameni.
It is further
unbelievable that the police would just accept a fire-arm without
making enquiries about it. It is worse that
no entry was made
either on the occurrence book or any relevant register. The
evidence of Galifike should be viewed against
the entry made by
Soqinase on the exhibit register albeit a wrong date was written.
[17]
The evidence of Dyani is clear and straight forward. They were
looking for a fire-arm. The information they had
led them to
the plaintiff. The plaintiff confirmed that he had knowledge of
the fire-arm and led them to where the fire-arm
was. They
recovered the fire-arm and arrested the plaintiff. It cannot be
said therefore that the arrest was unlawful.
[18]
Even in respect of the assault the evidence of the plaintiff is not
probable because (a) he initially said he was assaulted
at Mamela
taxi rank and later changed to say on the way to Sabe locality, (b)
what would be the reason for his assault if he was
leading the police
to where the fire-arm was. Certainly, there could have been no
reason for the assault. The plaintiff
alleged that he had
injuries on his wrists. No such injuries were proved.
[19]
On the evidence, I am satisfied that the arrest was not unlawful and
consequently, I make the following order:
(a)
The action against the defendant is
dismissed with costs.
M
MAKAULA
JUDGE
OF THE HIGH COURT
Appearances
:
Plaintiff:
Adv Calaza
instructed by
Mjulelwa
Inc Attorneys
Office
No 207A 2
nd
Floor
Metropolitan
Place
MTHATHA
Defendant:
Ms Madyibi
instructed by
Mvuzo
Notyesi Inc
2
nd
Floor, T-H Madala Chambers
No
4 Durham Street
MTHATHA