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[2016] ZAGPPHC 88
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Nagel v Minister of Police (A214/14) [2016] ZAGPPHC 88 (17 February 2016)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
D
I
VISION,PRETORIA)
CASE
NO: A214/14
DATE:
17/2/2016
JAQUES
QUINTIN NAGEL
APPELLANT
and
MINISTER OF
POLICE
RESPONDENT
JUDGMENT
KHUMALO
J
[1]
The Appellant is appealing against the dismissal with costs by the
court a quo (Magistrate Mkanzi in the Magistrate's Court,
Pretoria)
on 4 September 2012 of his claim against the Respondent for damages
for unlawful arrest, assault and detention by the
members of the
South African Police Services ("SAPS").
[2]
The salient facts are that on 2 June 2009, Appellant, a medical
officer, was arrested at a Roadblock in Centurion during an
altercation that ensued between him and two members of the SAPS, one
N Mdluli and A Legoro (hereinafter referred to as ("Mdluli")
and ("Legoro"). He was detained at Lyttelton and charged
with
crimen inuiria,
for having called Mdluli a "kaffir",
also with the negligent handling of a firearm, for leaving his gun in
the car unattended,
interfering with the police duties and
disturbing the police officers whilst carrying out their
duties. After 3.4 hours
of his detention, he was released and warned
to appear in court on 3 June.2009, A further court appearance was set
down on 10'June'2009
Appellant paid an admission of guilt fine
on the charge of
crimen
inuiria
and the
other two charges were withdrawn.
[3]
Subsequently, Appellant instituted a damages claim against
Respondent, the Minister responsible for the conduct of the members
of the SAPS who were at all relevant times acting within the course
and scope of their employment with the Respondent, for arresting
him
on the charges of
crimen inuiria
and negligent handling
of a firearm without a warrant, his detention and assault.
[4]
The learned magistrate in the court a quo found Appellant' s arrest
to have been lawful, being in compliance with s 40 (1) (a)
of the
Criminal Procedure Act ("the Act") in that the Appellant
committed the offence of
crimen inuiria
in the presence of a
policeman. He also found the Appellant to have failed to prove his
claim for assault on a balance of probabilities.
[5]
Appellant's ground of appeal is that the court a quo erred by:
[5.
1
]
finding for the Defendant/Respondent In respect of onus;
[5.2]
disregarding the material contradictions between the
Respondent's witnesses;
[5.3]
falling to consider the Improbability as suggested by the Respondent
that Appellant fled and returned to swear at his arrestors;
[5.4]
Failing to consider the cogent evidence of the Appellant and his
witnsses corroborating the Appellant.
[5.5]
falling to consider the charges being trumped up against the
Appellant;
[5.6]
Failing
to
consider
the
reasons
advanced
for
the
payment
of
the
admission
of
guilt
fine
and
Its
impact
upon
the
guilt
of
the
Appellant;
[5.7]
Failing in its judicial assessment in regard to the appropriate costs
order.
[6]
In
S
v
Manyane
and Others
2008 (1) SACR 543
(SCAA) the court held that:
"This
court's powers to interference on appeal with the findings of fact of
a trial court are limited. In the absence of demonstrable
and
material misdirection by the trial court, its findings of fact are
presumed to be correct and will only be disregarded if the
recorded
evidence shows them to be clearly
wrong."
[7]
Section 40 of the Act reads:
(1)
A peace officer may without warrant arrest any person-
(a)
who commits or attempts to commit any offence in his presence;
The
onus is upon the arrestor to prove that a crime was committed in his
presence. The following are the jurisdictional requirements
that
Respondent has got to prove to discharge the onus:
[7.1]
The arrestor was a peace officer;·
[7.2]
An offence was committed or attempted to be committed;
[7.3]
The arrestee committed the offence or attempted to do so in the
presence of the arrestor.
[8]
The fact that the arrestee is later not prosecuted or being
prosecuted is acquitted does not make the arrest unlawful; see
Scheepers v
Minister of
Safety
and
Security
2015 (1) SACR 284
(ECG)
par [18]. In
Gulyas
v
Minister
of law
and Order
1986 (3) SA 934
(C)
the court found the use of an obscene language in a telephone
conversation with a police official to have occurred in his (the
police official) presence as contemplated in s 40 (1) (a).
[9]
It is common cause that at the time of Appellant's arrest, he was
altercating with Mdluli. Legoro was at a hearing distance
of about 3
meters from them. Mdluli and Legoro testified in the court a quo that
during that time Appellant called Mdluli "a
kaffir" and
promised to f..k him up, whilst disturbing them in their work at the
road block. Appellant, later, represented
by an attorney, admitted to
the charge of
crimen inuiria
for having uttered the
offending words to Mdluli and paid a fine before the date the matter
was set down for trial. Respondent's
counsel correctly argued, that
Appellant's admission consists of overwhelming evidence of an offence
committed in the presence
of a peace officer, and satisfy the
jurisdictional requirements of a lawful arrest, upon which the court
a quo found that the onus
upon the Respondent to prove a lawful
arrest was as a result discharged.
[10]
At the time the Applicant paid an admission of guilt fine, he was
aware of the charge/s proffered against him and what it entailed,
specifically that of
crimen
inuiria.
He,
duly represented by his attorney, admitted absolute guilt for
insulting Mdluli and paid the fine. He was then deemed to have
been
convicted and sentenced for the offence. His admission synonymous
with prove of his guilt beyond reasonable doubt because
then it is
the only time a conviction can be returned. The conviction stands as
from that date since there are no proceedings pending
to set it
aside. Indeed the jurisdictional requirements of a lawful arrest was
established. Therefore the court's finding on the
question of onus in
favour of the Respondent was judicious.
[11]
The Appellant contends that the court a quo failed to consider the
charges as being trumped up against him. According to Appellant,
he
returned to the scene, notwithstanding prior, leaving the scene in an
unpleasant way, to obtain Mdluli's name as he was going
to lay a
charge against him (Mdluli). Why would Appellant then admit to a
trumped up charge that would result in him having another
criminal
record and vindicating Mdluli? Which he did. Also he hasn't laid a
charge against Mdluli till to date. Furthermore, there
is also no
evidence of Appellant mentioning at the time of his arrest, his
intention to do so either to Viljoen, who assisted him
at the cells,
his attorney or the prosecutor. The court a quo tried to find clarity
from the Appellant by quizzing him on all these
aspects he still
could not provide sensible or credible answers. A further probe by
this court just led to Appellant's counsel
referring to an assault
case that Appellant was previously convicted of in another matter.
The only inference that can be drawn
is that the account he gave for
coming back to the scene is contrived and that of the Respondent
validated.
[12]
.Appellant also criticized the court a quo for not accepting his
explanation that he ,
admitted
to the charge so as to be able to
go back to his work overseas
without
an
inconvenience of a trial. It does not make sense to make that
allegation when his
evidence
was that he was so offended by Mdluli that he was going to lay a
criminal charge
against
him,notwithstanding his work overseas and also the inconvenience of a
trial being
a
possibility. The same considerations applicable.
[13]
Once more, regarding Appellant's return to the scene, what should be
taken into account as well is that he confirmed that there
was
another way he could have obtained the information on Mdluli without
having to go back to the scene. He nevertheless went back
despite the
first encounter with the police officers not being pleasant. It is
therefore not reasonably possibly true that he went
back to the scene
for the reason proffered. The only inference that can be drawn is
corroborated by his admission of guilt. There
was therefore no reason
for the court a quo to consider it an Improbability that Appellant
fled and returned to swear at his arrestors
as suggested by the
Respondent or to find that the charges were trumped up against the
Appellant.
[14]
Respondent's counsel also pointed out that a gun was found in
Appellant's motor vehicle allegedly left unsecured. The record
indicates that Appellant admitted to having left the gun unattended
and appreciated that it was exposed. He apparently left instructions
with his young sister to lock the doors, but she opened her door and
stood outside the vehicle. It is not disputed that when the
police
found the gun, the doors of the vehicle were all opened. That is the
second offence that Appellant committed in the presence
of a peace
officer. The fact that the charge was withdrawn is irrelevant as
pointed out in
Sirheepers.
[15]
In respect of the unlawful assault claim, Appellant alleged to have
been assaulted by Legoro and Mdluli. Also that he suffered
a severe
neck injury as a result of the assault during arrest. He however
agreed that he resisted arrest therefore the police officers
had to
use minimum force to effect the arrest. He fell when they pushed him
to get him inside the Quantum. Besides that, he only
had visible
abrasions on the wrist resulting from being handcuffed. There were no
other injuries found to have been caused by the
assault. The x-ray
revealed an old fracture of cervical vertebrae. No medical evidence
was led in that regard and the issue therefore
could not be taken any
further.
[16]
In assessing the evidence the court a quo in its judgment
systematically went through the evidence of the state witnesses,
compared and found that the two main witnesses corroborated each
other in all the material aspects of the case, specifically on
what
transpired when the Appellant was arrested, the reasons for the
arrest and how he was behaving during the arrest.
[17]
The court went through the same exercise with the evidence that was
tendered on behalf of the Appellant and pointed out that
except for
the sister's evidence all other witnesses arrived at the scene when
all has happened or were not in close proximity
to hear what was said
between the Appellant and the peace officers. Appellant contradicted
himself in material facts also alleging
that he was never arrested
before.
[18]
I am satisfied that the court covered all the grounds of appeal that
are raised by the Appellant and dealt with the evidence
judiciously
to arrive at its conclusion on the merits.
[19]
The.Appellant has therefore failed to make a case for the setting
aside of the decision of the court a quo, having failed to
show that
the court a quo erred when it dismissed its claim. Under the
circumstances
[20]
I hereby propose the following order:
[20.1]
The Appeal is dismissed with costs.
I
agree andIt is so ordered
___________________
N
V KHUMALO
JUDGE
OF THE HIGH COURT G
AUTENG
DIVISION: PRETORIA
__________________
D
FOURIE
JUDGE
OF THE HIGH COURT
DIVISION,
PRETORIA
For
the Applicant:
J R BAUER
Instructed
by:
POTGIETER PENZHORN & TAUTE INC
PRETORIA
Ref: Taute/ R/S4503N
For
the Respondent:
K M MOKOTEDI
Instructed
by:
STATE ATTORNEY, PRETORIA
Ref: S L Botes
PRETORIA