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[2016] ZAGPPHC 288
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Nel v Head, SAPS Criminal Record Centre (51583/2011) [2016] ZAGPPHC 288 (15 March 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
REPUBLIC
OF SOUTH AFRICA
Case
Number: 51583/2011
DATE:
15 MARCH 2016
In the matter
between:
DR RICHARD
NEL
..................................................................................................................
Applicant
And
THE HEAD, SAPS
CRIMINIAL RECORD
CENTRE
.....................................................
Respondent
JUDGMENT
JANSE VAN
NIEUWENHUIZEN J
[1] The applicant
seeks an order that “any inscription or record on the
electronic record system of Respondent contradictory
to RN1 be
removed and/or deleted
APPLICANT’S
VERSION
[2] The applicant is
Richard Nel, a major male business man. The applicant states that he
was arrested at Oliver Tambo Airport on
8 October 2010, for reasons
unknown to him. During the investigation into the arrest it came to
the applicants’ knowledge
that a conditional warrant for his
arrest was unlawfully circulated by "a Police Officer", who
stated under oath that
the applicant has a criminal record.
[3] During February
2011 the applicant requested his attorney of record to address a
letter to the respondent and the department
of Home Affairs to
rectify the particulars in respect of his criminal record. To this
end and on 25 February 2011, the applicant’s
attorney of record
addressed a letter to the respondent and the department of Home
Affairs. The following extracts from the letter
is instructive:
“3. Ons kli&nt
ontken dat by ’n kriminele record het soos op u stelsel
aangetoon en versoek gesertifiseerde afskrifte
van die dokumente
waarop die rekord saamgestei is.
4. Ons ontvang graag
die dokumente of ’n bevestiging dat ons klient se rekord
reggestei is binne 30 dae hiervan by gebreke
waarvan ons die nodige
geregtelike stappe teen u sal neem names ons klient
5. Ons ontvang graag
UITERS DRINGEND u bevestiging dat die dokument soos deur uself
utigereik inderdaad eg is en korrek is.
6. Sou ons nie u
sondanige bevestiging ontvang nie ontvang ons graag uiters dmigend ’n
aanduiding wat die korrekete situasie
is en as u inderdaad aantoon
dat daar kriminele rekord teen ons klient se naam gelys is, ontvang
ons graag daarmee saam die brondokumente
wat
sodanige kriminele
rekord onderie. ”
[4] On 3 March 2011
and in response to the aforesaid letter, the applicant was informed
by the respondent that his fingerprints
must be taken at Pretoria
Central Police Station and that same should be submitted to the
offices of the respondent. Subsequent
to the submission of his
fingerprints, the applicant received a clearance certificate dated 11
March 2011 issued by Captain White,
which certificate is attached to
the founding affidavit as Annexure RN1.
[5] Notwithstanding
the aforesaid and on 27 July 2011, it once again came to the
applicant’s attention that it is alleged
that he has a criminal
record. Further correspondence was addressed to the respondent and
Home Affairs without any success.
[6] The respondent’s
failure to respond culminated in launching of the present
application.
RESPONDENT’S
VERSION
[7] The respondent
opposes the relief claimed by the applicant on three grounds, to wit:
i. Annexure RN1 does
not reflect the true position;
ii. Annexure RN1 was
never issued by the SAPS Criminal Record Centre;
iii. The applicant
has previous convictions which convictions are reflected in the
records of SAPS Criminal Record Centre.
[8] Captain Louw,
the Section Commander, Criminal Information / Wanteds deposed to an
affidavit which inter alia gave a brief background
in respect of the
information kept by the SAPS Criminal Record Centre (“CRC”).
[9] Captain Louw
explains that the information relating to a person’s previous
convictions is linked to such person’s
fingerprints and not to
the person’s identity number. This measure is taken to
safeguard against identity theft.
[10] He,
furthermore, explained that a person’s fingerprints are taken
upon his/her arrest and should such person be convicted
of an
offence, the information relating to the conviction is captured on
the electronic systems of CRC.
[11] In
investigating the allegation by the applicant, Captain Louw
established that the applicant applied for a clearance certificate
on
2 March 2011 and to this end provided a set of his fingerprints.
According to Captain Louw, it takes approximately 6 to 8 weeks
from
the date of the application for a clearance certificate until the
actual certificate is available.
[12] He examined
annexure RN1 and found that the document was not issued to the
applicant on 11 March 2011. A certificate setting
out the applicant’s
criminal record was, however, issued to the applicant on 1 April
2011.
[13] Annexure RN1
was then presented to Captain White who advised that the signature
that appears on RN1 is not his signature and
that the datestamp used
on Annexure RN1 has not been used by him since February 2007. Captain
Louw furthermore attached various
court documents to his affidavit in
confirmation of the applicant’s criminal record.
APPLICANT’S
RESPONSE
[14] The applicant,
in his replying affidavit, stated that again attended at the offices
of the respondent to verify his record
against his fingerprints.
According to the applicant his fingerprints were taken and he once
again received a clearance certificate
on 4 December 2014 signed by a
certain Major Makgoba. Thereafter on 8 April 2015, the applicant
alleges that he approached the
respondent’s offices once again
this time only with his identity number, once his identity number was
run through the system
he received a certificate to confirm a list of
previous convictions alluded to by Captain Louw in his answering
affidavit.
ISSUE IN DISPUTE
[15] In essence the
dispute between the parties is whether the applicant has a criminal
record or not.
REQUIREMENTS FOR A
FINAL INTERDICT
[16] In order to
succeed with the relief claimed, the applicant needs to allege and
proof:
i. a clear right;
ii. an injury
actually committed or reasonable apprehended; and
iii. the absence of
any other satisfactory remedy.
EVALUATION Clear
right
[17] A factual
dispute exists on the papers in respect of the applicant’s
right to the relief claimed. The dispute should
have become apparent
to the applicant upon receipt of the respondent’s answering
affidavit.
[18] Notwithstanding
the aforesaid, the applicant filed a replying affidavit and persisted
with the application.
[19] In view of the
contents of the applicant’s attorney’s letter, supra, one
would have expected the applicant to exhaust
the remedies provided in
the Promotion of Access to Information Act, 2 of 2000, (“the
Act”) prior to the launching
of the present application. The
documents might have indicated another cause of action to be pursued.
[20] Be that as it
may and after argument was addressed at the hearing of the
application, the applicant apparently realised the
difficulty he is
facing on the papers as they stand. I reserved judgment in the matter
and prior to judgment being delivered, the
applicant brought an
application to amend the Notice of Motion by inserting the following
prayer:
“1A In the
event of the Electronic Criminal Record System of the Respondent
reflecting any convictions on the fingerprints
and/or identity number
of the Applicant and the Respondent be ordered to furnish the
Applicant with reasons and the source documentation
and/or SAP 69
instruction documentation including fingerprints from which the
record of the convictions was compiled.”
[21] The respondent
opposed the granting of the amendment.
APPLICATION TO
AMENDMENT
[22] There is not a
single allegation contained in the founding affidavit to support the
alternative relief the applicant sought
to introduce. Ms Arroyo
counsel for the applicant, was invited during the hearing of the
application to draw the court’s
attention to any such
allegation/s. She could, understandably, not do so.
[23] Ms Naude,
counsel for the respondent, indicated that save for the aforesaid
difficulty, the respondent will be severely prejudiced
if the
amendment is granted. She submitted that the respondent has not had
an opportunity to answer to the relief sought to be
introduced by the
amendment.
[24] I agree. It
might well be that the respondent would have raised failure to comply
with the provisions of the Act as a point
in limine.
[25] It is, however,
not necessary to speculate in this regard. The relief sought to be
introduced by the amendment has no factual
basis and was not
ventilated in the papers or during argument.
[26] In the
premises, the application stands to be dismissed with costs.
FINDING
[27] Due to the
factual dispute alluded to supra, the applicant has failed to proof
or a preponderance of probabilities that he
has a clear right to the
relief claimed. In view of the aforesaid finding, it is not necessary
to consider the remaining requirements
for a final interdict.
ORDER
1. The application
to amend is dismissed with costs.
2. The application
is dismissed with costs.
H JANSE VAN
NIEUWENHUIZEN
JUDGE OF THE HIGH
COURT OF SOUTH AFRICA
QAUTENG DIVISION,
PRETORIA
Appearances:
Counsel for the
Applicant Advocate Monique Arroyo
Instructed
by Walter Niedinger & Associates
Counsel for the
Respondent: Advocate Naude
Instructed by The
State Attorney
Date Heard 29
January 2016
Date of hearing
of application to amend: 11 March 2016