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[2016] ZAGPPHC 552
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Mokoena v Minister of Police (15827/13) [2016] ZAGPPHC 552 (14 March 2016)
REPUBLIC OF SOUTH
AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO: 15827/13
DATE:
14 MARCH 2016
In
the matter between:
MOKOENA
J ASTI NOS
MODIKWE
..............................................................................
PLAINTIFF
And
THE
MINISTER OF
POLICE
........................................................................................
DEFENDANT
FOURIE CP, AJ
[1]
The Plaintiff claims for damages in an
amount of R1
, 3
million together with
interest and costs, for his wrongful arrest, without a warrant and
his wrongful detention. The Plaintiff
also claimed damages in an
amount of R20 000.00 as a result of the wrongful assault on him. This
claim was however at the commencement
of the trial abandoned.
[2]
Also at the commencement of the trial,
the Plaintiff sought the following amendments to his particulars of
claim, which amendments
the Defendant did not oppose. Such amendments
were allowed as follows:
(a)
In paragraph 4 thereof:
Deleting
the date of the arrest “Sunday, 21 March 2010” and
substituting it with the date “19 March 2010”;
(b)
In paragraph 8 thereof:
Deleting
the date of him being granted bail “30
th
of March
2010” and
substituting
it with the date “2
nd
of June 2010”;
and
(c)
Deleting
the amount of bail granted of “R1 200.00” and
substituting it with the amount of “R1 000.00”.
[3]
The Defendant in its amended plea admits
that the Plaintiff was arrested without a warrant, but invoked the
provisions of Section
40(1 )(b) of the Criminal Procedure Act, 51 of
1977 (the “Act”), which permits a peace officer to arrest
without warrant
any person whom he reasonably suspects of having
committed an offence referred to in Schedule 1 to the Act. The
Defendant also
pleads that the Plaintiffs further detention,
presumably after his first appearance on 23 March 2010, was lawful as
it was in terms
of a court order. The Defendant furthermore denies
that the Plaintiff was arrested by one Inspector Leeto, as alleged by
the Plaintiff
and pleads that the Plaintiff was arrested by one
Detective Sergeant Joseph Matsheke (“Matsheke”), who
acted within
the course and scope of his employment with the
Defendant, but denied that his action was wrongful / unlawful and
that the Defendant
is liable to compensate the Plaintiff, claiming
that the Plaintiff was a reasonable suspect of having committed a
Schedule 1 offence,
namely that of robbery.
[4]
The Defendant accepted the duty to begin
and called only one witness, namely Matsheke, the investigating and
arresting officer and
thereafter closed his case. The Plaintiff then
closed his case without leading any evidence.
[5]
One Naphtale Maluleka (the
“complainant”), in a statement made on 20 October 2009
alleges that earlier that evening
his motor vehicle, a 1979 Toyota
Corolla, white in colour, with silver wheelcaps and with registration
number DFN 286 N, was hijacked
by a male and a female, whom he gave a
lift from Pretoria. He gave them a lift because they said where they
were going to was close
to where he stays. As they reached the place,
they told him to stop. The male then assaulted him with a heavy
object and the female
sprayed him in the face. They pushed him out of
the vehicle. He managed to take the “mobaliser", which I
assume should
be the “immobiliser”, but the car keys
remained and they drove off with his vehicle. He was helped by
passersby who
took him to the police, where he made the statement and
was then taken to hospital.
[6]
Matsheke visited the complainant in
hospital and interviewed him there. He noticed that the complainant
sustained a head injury.
In Matsheke’s statement dated 21
October 2009, he
inter alia
states that
the suspects are unknown to the complainant.
[7]
Matsheke then received word that a
suspect vehicle was impounded as a result of information received
from a member of the public
(“the source"). He inspected
the vehicle and was able to establish that the vehicle was indeed the
hijacked vehicle
of the complainant. The vehicle was found in the
vicinity of where the hijacking took place.
[8]
The source whom he then met with is one
Mpho Ngobeni, a mechanic, who appeared scared and did not want to
meet with the police as
he was afraid of being killed. The source
informed him that he was contacted by the Plaintiff and one Joeman to
assist them with
a mechanical fault on a vehicle. The vehicle would
not start and he noticed blood stains in the vehicle. As a result he
became
suspicious and contacted the police. The source only made a
statement on 26 March 2010, after the Plaintiff was arrested.
Matsheke
explained that the source was reluctant to make a statement
before an arrest was made. The evidence of Matsheke is uncontested.
[9]
In his statement the source confirms
that he was approached by Joeman and Mokopa to accompany and assist
them. Matsheke testified
that Mokopa is the nickname of the
Plaintiff, which nickname is widely known in the community. The
source further alleges in his
statement that it was a Corolla
vehicle, which vehicle failed to start. He saw blood on the driver’s
seat and driver’s
door and also a tissue with blood on the mat.
Joeman and Makopa threatened to cut the vehicle into pieces and to
sell the parts.
He became suspicious and scared and after he called
the police, the said vehicle was towed away by the police.
[10]
The Plaintiff was arrested by Matsheke
during the early hours of the morning on 19 March 2009, some months
after the incident, at
his grandfather’s place. Inspector
Leeto, together with several other police officers, were also present
when the arrest
was made.
[11]
The Plaintiff was charged with hijacking
and appeared in court on Tuesday, 23 March 2010. On 23 March 2010 the
matter was postponed
to 30 March 2010 for the Plaintiff to apply for
bail. On 30 March 2010 the matter was further postponed until 2 June
2010, in order
to afford the Plaintiff the opportunity to obtain
legal assistance. The Plaintiff on 2 June 2010 applied for bail and
bail was
granted in the amount of R1 000.00. He never paid the bail
and was further detained until 29 September 2010, when the case
against
him was withdrawn and he was released.
[12]
During argument by counsel for the
Plaintiff, it was pointed out to him that on the evidence the arrest
was made by Matsheke and
not by Inspector Leeto, as alleged in the
particulars of claim and whether on that alone, the Plaintiffs claim
should not fail.
Counsel for the Plaintiff immediately moved for an
amendment to have the name of Inspector Leeto substituted with
“Detective
Sergeant Matsheke”. The Defendant opposed this
and the Plaintiff was ordered to bring a substantive application for
such
amendment, which substantive application the Defendant opposed.
I am prepared to exercise my discretion to allow the amendment,
as I
am of the view that there is no prejudice to be suffered by the
Defendant. The name of “Inspector Leeto” is accordingly
deleted in paragraph 4 of the particulars of claim and substituted
with “Detective Sergeant Matsheke”.
[13]
It is common cause that:
(a)
The
Plaintiff was arrested by a peace officer;
(b)
He
was arrested on suspicion of committing a Schedule 1 offence, namely
robbery / hijacking;
(c)
The
Plaintiff was detained at Temba police station from 19 March 2010 and
he appeared in court on 23 March 2010.
[14]
The substantial issues in dispute are
whether the Plaintiffs arrest and detention was unlawful and if so,
what damages should be
awarded. The arrest without a warrant if
prima
facie
unlawful. The onus was accordingly on the
Defendant to justify the arrest and then on the Plaintiff to prove
the wrongful ness
/ unlawfulness thereof as pleaded and to prove the
quantum of his damages.
[1]
[15]
The jurisdictional facts for a Section
40(1 )(b) defence are:
(a)
The
arrestor must be a peace officer;
(b)
The
arrestor must entertain a suspicion;
(c)
The
suspicion must be that the suspect (arrestee) committed an offence
referred to in Schedule 1; and
(d)
The
suspicion must rest on reasonable grounds.
[2]
[16]
Matsheke testified that he had
reasonable grounds for the suspicion that the Plaintiff was guilty of
a Schedule 1 offence, as the
hijacked vehicle was recovered and on
the information received from the source, the hijacked vehicle was in
the possession of the
Plaintiff and Joeman, as well as the fact that
the Plaintiff and Joeman are “used” to hijacking
vehicles. The Plaintiff
submits that Matsheke did not entertain a
reasonable suspicion that the Plaintiff committed the Schedule 1
offence of robbery /
hijacking, in that he had the following
conflicting information available, namely:
(a)
A
sworn statement by the complainant to the effect that he was hijacked
by a male and female person; and
(b)
An
oral statement, exclusively based on conjecture, by the source, to
the effect that the crime was perpetrated by two male persons.
[17]
The Plaintiff further submits that the
statement by the complainant is to be preferred over the statement by
the source and to be
regarded the more reliable source. To find that
Matsheke indeed had reasonable grounds for his suspicion, is
tantamount to a finding
that the Plaintiff, to the exclusion of
Joeman and the unidentified male alluded to by the complainant,
accompanied the female
accomplice. There is no actual basis for such
a finding and accordingly cannot serve as a ground, let alone
reasonable ground,
for Matsheke’s suspicion. Furthermore, the
aforesaid finding necessarily excludes Joeman as a possible suspect,
and militates
against Matsheke’s own evidence. In the
alternative, if this court is inclined to find that on an objective
approach Matsheke
indeed had reasonable grounds for his suspicion,
then it is submitted that on Matsheke’s own evidence it was
unnecessary
to arrest the Plaintiff, simply because he was not a
flight risk.
[18]
In
Linda
,
(supra)
[3]
it is said:
“The
question whether the suspicion of the person effecting the arrest is
reasonable must be approached objectively. A suspicion
inherently
involves an absence of certainty or adequate proof
‘
A
police officer is not expected to satisfy himself to the same extent
as a court: A suspicion can be reasonable despite there being
insufficient evidence for
a
prima facie case. In
ShabaanBin
Hussein and Others v Chong Fook Kam and another
the
Privy Council said:
'Suspicion
in its ordinary meaning is a state of conjecture or surmise where
proof is lacking,
“I suspect but i
cannot prove
"
Suspicion arises at or near the starting
point of an investigation of which the obtaining of prima facie prove
is the end.’
A
measure of uncertainty and confusion regarding the requirements of a
defence under s 40(1 )(b) crept into our law as a result
of the
decision of Bertelsmann J in
Louw
and Another v Minister of Safety and Security and Others,
holding
that the Bill of Rights obliged an arresting officer acting under s
40(1)(b) to use arrest as a last resort after considering
less
drastic options of bringing the suspect before court. The decision
added a gloss to the section, in form of an additional
jurisdictional
fact, based on an interpretation of the requirements of the Bill of
Rights. Other judges disagreed that the provisions
read with the Bill
of Rights implied a fifth jurisdictional fact. In
Charles
v Minister of Safety and Security,
Goldblatt
J criticised the judgment of Bertelsmann J, saying:
do
not agree with the conclusion reached by Bertelsmann J, despite his
full and careful reasons therefor and I am of the view that
it is
clearly wrong.
The
Legislature having granted a peace officer the right to make an
arrest in the circumstances set out in s40 has created a situation
where due compliance with such section by a peace officer is lawful
and affords such peace officer protection against an action
for
unlawful arrest. In my view, the court has no right to impose further
conditions on such persons. To do so would open a Pandora’s
box
where the courts would be called upon in cases of this type to have
to enquire into what is reasonable in a variety of circumstances
and
further where peace officers would be called upon to make value
judgments every time they effect an arrest in terms of s40.’
Various
courts aligned with one or other of the differing points of view. The
difference of opinion was ultimately resolved by the
Supreme Court of
Appeal (SCA) in
Minister
of Safety and Security v Sekhoto and Another.
The
SCA was in no doubt that there was no cause, interpretative or
otherwise
,
for
reading into s40(1)(b) a fifth jurisdictional fact requiring arrest
to be the last resort. That is not to
say
that a precipitate anest will be immune
from challenge. Once the jurisdictional facts for an arrest in terms
of s 40(1) (b) are
present, the discretion whether or not to arrest
arises. No doubt the discretion must be properly exercised. But the
grounds on
which the discretion can be questioned are nanvwly
circumscribed. The questions formulated for determining the legality
of an arrest
without a warrant are therefore (a) did the arresting
officer suspect that the person arrested was guilty of the offence;
(b) were
there reasonable grounds for that suspicion; and (c) did the
officer exercise his discretion to make the arrest properly?”
[19]
I am not persuaded by the Plaintiffs
submissions that Matsheke did not have reasonable grounds for his
suspicion. I agree with the
submissions made by the
Defendant
that Matsheke was not required to verify before the arrest was made,
as to who between the Plaintiff and Joeman was involved
in the
hijacking of the vehicle. As part of further investigation, Matsheke
may have eliminated the Plaintiff or Joeman, depending
on whether
Joeman was also arrested. In any event, one of them could for example
have been an accessory after the fact. The test
is not whether the
suspect is guilty of the offence of car hijacking, instead the test
is simply whether the information that Matsheke
had objectively
considered, established reasonable grounds to suspect. Furthermore, a
fifth jurisdictional fact requiring arrest
to be the last resort has
been resolved by the Supreme Court of Appeal (SCA) in
Sekhoto
(supra).
[20]
The Plaintiff did not plead a failure to
exercise the discretion properly, and in
Sekhoto (supra)
[4]
it was
held that the case could be disposed of
on a simple basis, namely that the exercise of the peace officer’s
discretion was
never an issue between the parties. The Plaintiff who
had to raise it in either the summons or in a replication, failed to
do so.
The issue was also not ventilated during the hearing.
[21]
In
Sekhoto (supra)
the SCA nevertheless took the opportunity to discuss the requirements
for a proper exercise of the discretion to arrest, once the
jurisdictional facts are fulfilled and
inter alia
says:
“This
would mean that peace officers are entitled to exercise their
discretion as they deem fit, provided that they stay within
the
bounds of rationality. The standard is not breached because an
officer exercises the discretion in a manner other than that
deemed
optimal by the court
.
A
number of choices may be opened to him, ail of which may fall within
the range of rationality
.
The
standard is not perfection
,
or even the optimum, judged from the
vantage of hindsight and so long as the discretion is exercised
within this range, the standard
is not breached. ”
5
[22]
I am satisfied that the arresting
officer, Matsheke, suspected that the Plaintiff arrested was guilty
of a Schedule 1 offence and
that he had reasonable grounds for that
suspicion. The further question for determining the legality of an
arrest without a warrant,
namely the proper exercise of the peace
officer’s discretion, was never an issue between the parties.
In the result I am
satisfied that the Plaintiff justified the arrest
and that the Plaintiff failed to prove the unlawfulness thereof, as
pleaded.
[23]
I
now turn to the detention of the Plaintiff. In
Sekhoto
(supra)
8
the
SCA says:
“While it is clearly
established that the power to arrest may be exercised only for the
purpose of bringing the suspect to
justice the arrest is only one
step in that process. Once an arrest has been effected the peace
officer must bring the arrestee
before a court as soon as reasonably
possible and at least within 48 hours (depending on court hours).
Once that has been done,
the authority to detain that is inherent in
the power to arrest has been exhausted. The authority to detain the
suspect is then
within the discretion of the court.
The
discretion of a court to order the release or further detention of
the suspect is subject to wide-ranging - and in some cases
stringent
-
statutory
directions. Indeed, in some cases the suspect must be detained
pending his trial, in the absence of special circumstances.
I need
not elaborate for present purposes save to mention that the Act
requires a judicial evaluation to determine whether
* At 171 D
“At 171 G to 172 H.
it
is in the interest of justice to grant bail, that in some instances a
special onus rests on a suspect before bail may be granted
and the
accused has in any event a duty to disclose certain facts, including
prior convictions, to the court. It is sufficient
to say that if a
peace officer were to be permitted to arrest only once he is
satisfied that the suspect might not otherwise attend
the trial then
that statutory structure would be entirely frustrated. To suggest
that such a constraint upon the power to arrest
is to be found in the
statute by inference is untenable.
While
the purpose of arrest is to bring the suspect to trial the arrestor
has a limited role in that process. He or she is not called
upon to
determine whether the suspect ought to be detained pending a trial.
That is the role of the court (or in some cases a senior
officer).
The purpose of the arrest is no more than to bring the suspect before
a court (or the senior officer) so as to enable
that role to be
performed. It seems to me to follow that the enquiry to be made by
die peace officer is not how best to bring the
suspect to trial; the
enquiry is only whether the case is one in which that decision ought
property to be made by a court (or the
senior officer). Whether his
decision on the question is rational naturally depends upon the
particular facts but it is clear that
in cases of serious crime
-
and
those listed in Schedule 1 are serious, not only because the
Legislature thought so
- a
peace officer could seldom be criticised
for arresting a suspect for that purpose. On the other hand there
will be cases, particularly
where the suspected offence is relatively
trivial, where the circumstances are such that it would clearly be
irrational to arrest.
This case does not call for consideration of
what those various circumstances might be. It is sufficient to
say
that the mere nature of the offences of which the respondents were
suspected in this case - which ordinarily attract sentences
of
imprisonment and are capable of attracting sentences of imprisonment
for 15 years - clearly justified their arrest for the purpose
of
enabling a court to exercise its discretion as to whether they should
be detained or released and if so on what conditions,
pending their
trial.”
[24]
The Plaintiff was brought before a court
as soon as reasonably possible, seeing that the date preceding his
first appearance was
a public holiday. Once this has been done, the
authority to detain that is inherent in the power to arrest, has been
exhausted.
The authority to detain the suspect further is then within
the discretion of the court. There is no evidence to suggest that the
further postponements were occasioned by the police and/or that the
investigating officer misrepresented the strength of the state’s
case. In this regard it needs to be borne in mind that the Plaintiff
was indeed granted bail of 2 June 2010.
[25]
I am therefore also satisfied that the
unlawfulness of the detention was not proved. Even if the detention
had been unlawful, such
detention of the Plaintiff would not have
been sufficiently linked to the arrest. It is also in my view
significant that the Minister
for Justice and Constitutional
Development is not a party to these proceedings.
[26]
Having concluded that the unlawfulness
of the arrest and detention had not been proved, it is not necessary
to discuss the quantum
of damages claimed.
[27]
In the result, I make the following
order:
1.
The Plaintiffs claim is dismissed;
2.
The Plaintiff is ordered to pay the
Defendant’s costs of the action.
CP
FOURIE
ACTING
JUDGE OF GAUTENG DIVISION OF THE HIGH COURT OF SOUTH AFRICA
For
the Plaintiff: Adv. JH vd B Lubbe
Instructed
by: De Klerk & Marais Inc.
Pretoria
For
the Defendant: Adv. M.S. Phaswane
Instructed
by: State Attorney Pretoria
DATE
OF HEARING: 18, 19 and 24 February 2016.
DATE
OF JUDGMENT: 14 March 2016.
[1]
Minister of Safety and Security vs Linda
2014 (2) SACR 464
(GD), a
full bench appeal of this Division, at466F.
[2]
Duncan v Minister of Law and Order
1986 (2) SA 805
(A) at 818G-H and
Linda, supra at 469 l-J.
[3]
At 470 A to 471 B and the case law referred to therein.
[4]
At 175 G-H