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[2016] ZAGPPHC 183
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Minister of Police and Another v Gombakomba and Another (A945/14) [2016] ZAGPPHC 183 (7 April 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
DATE:
7/4/2016
CASE
NO: A945/14
In
the matter between:
MINISTER
OF
POLICE
First Appellant
NATIONAL
PROSECUTING
AUTHORITY
Second Appellant
and
MORGAN
GOMBAKOMBA
First Respondent
TRANSPORT
LOGISTICS SOUTHERN AFRICA
(PVT)
LIMITED
Second Respondent
JUDGMENT
Tuchten
J
:
1
The first and second respondents separately sued the appellants in
the court below for damages arising from the arrest on
30 June 2010
of the first respondent, his consequent prosecution and the seizure
on the same day of a truck belonging to the second
respondent. The
actions were consolidated and heard before Phatudi J. The court below
found for both respondents and ordered the
first appellant to pay
damages to both respondents. There is no appeal against the orders in
relation to the second respondent
and nothing further need be said
about its case.
2
The first respondent is a citizen of and resident in Zimbabwe. At the
relevant time, he earned his living as a truck driver
which required
that he haul loads across national boundaries. His case was that he
was unlawfully arrested on 30 June 2010 and
subsequently detained in
the police cells at Zeerust. After his arrest he was charged and
remained in detention in the police cells
until 22 July 2010 when he
was released on bail. But thereafter he was unable to leave the
Republic because one of the conditions
of his bail was that he had to
surrender his passport. The criminal proceedings were withdrawn on
about 14 June 2012, after which
the first respondent's passport was
returned to him and the impediment to his freedom to travel and the
resumption of his employment
was removed.
3
The first respondent thus brought two claims against the
appellants, firstly for the loss of liberty and dignity caused
by the
arrest and for loss of income for the period he was in detention and
secondly for the loss of income during the period after
his release
on bail when he was forced to remain in the Republic.
4
As to the second claim, it was conceded by counsel for the
respondents during the hearing before us that the basis for the
second claim was that the representative of the second appellant took
too long to determine that the state could not succeed in
its
prosecution of the first respondent. This amounts to the contention
that the second appellant through his representative, the
local
prosecutor, was negligent. As counsel readily conceded, in our law
negligent prosecution does not give rise to a delictual
claim on the
part of an accused person and this second claim could not succeed.
5
The court below, no doubt
per omissio,
made no order in
relation to this aspect of the case. It is clear however that the
order should have been that the claim against
the second appellant
was dismissed and I shall reflect this in the order which I shall
propose.
6
The essence of the appeal relates to the first respondent's claim for
damages arising from his arrest. It is common cause
that the first
respondent was arrested without a warrant. The first appellant sought
to justify the arrest on the ground that the
arresting officer had a
reasonable suspicion that the first respondent had committed "customs
fraud". The evidence at
the trial in the court below and the
argument before us on appeal focussed on whether the suspicion of the
arresting officers was
based on reasonable grounds. But as I shall
show, the first appellant was also required to show that the
arresting officer or officers
held any suspicion at all.
7
The factual background to the arrest is largely common cause. The
first respondent and his colleague, Mr Rharadza, were
each in charge
of a vehicle onto which sealed containers were loaded at the
container depot in Bulawayo. They were told that their
loads in the
containers both consisted of teak decking to be delivered in
Johannesburg and they were instructed to travel to their
destination
through Botswana, although it would have been a shorter journey if
they had entered the Republic at Seit Bridge. The
reason they were
given by their employer for the longer journey was that clearance at
the Botswana border is faster than at Musina,
the border post on the
South African side after Seit Bridge.
8
On 27 June 2010, at the Zimbabwe Botswana border, a clearing agent
cut the seal on the container on the first respondent's
truck,
inspected the contents of the container and resealed the container.
The first respondent and Rharadza then travelled through
Botswana,
arriving at the Pioneer/Skilpadhek border posts near Zeerust on 29
June 2010. They were both cleared on both sides of
the border but
were delayed by mechanical faults to Rharadza's vehicle. They entered
the Republic early in the morning of 30 June
2010. The first
respondent travelled ahead of Rharadza.
9
The first respondent tried to call Rharadza on his cellphone but was
unable to do so. The first respondent then travelled
to a truck stop
near Thembisa in Gauteng where he once again, unsuccessfully, tried
to telephone Rharadza. He then telephoned the
consignee reflected on
his documentation, a Mr Noel. He was directed to a place along the
national road where his consignment was
unloaded from his truck to
another truck. The reason for the transfer of the container given to
him was that the warehouse where
the offloading was supposed to take
place was full. The first respondent said that this was a fairly
common occurrence. The first
respondent then proceeded to a truck
stop in Alberton, Gauteng. He slept in his vehicle.
10
At about 23h00, the first respondent was awakened by a knock on the
truck door. It was the police. At first there were
two officers but
they were joined by two other officers. The police officers searched
the truck and found that the container loaded
onto it was empty. They
asked the first respondent to explain what had happened to his
consignment and he told them how he had
transferred it at the side of
the national road. The first respondent was then arrested and taken
first to the Alberton police
station and then to the
Zeerust police station. There the first respondent found
Rharadza, who had also been
arrested.
11
In fact, Rharadza had been arrested at a police roadblock on the
Zeerust road. The container on Rharadza's truck was opened
and found
to contain not teak decking, but contraband cigarettes, ie cigarettes
on which no South African customs duties had been
paid, as they
should have been, for goods whose end destination was the Republic.
There is a suggestion in the evidence that in
fact, the documents
carried by the first respondent relative to his load reflected the
end destination of the load as being in
Swaziland rather than in the
Republic. I shall assume in favour of the first appellant that the
documents did indeed reflect the
end destination as being in
Swaziland. The significance of this is that goods in transit through
the Republic to another country
do not attract customs duty in the
Republic. If the true end destination of the load was in South
Africa, the reliance on documents
falsely stating that the end
destination was in Swaziland could, all else being equal, amount to
fraud on the SA customs service.
12
Captain Kgonare of the SA Police Service testified for the appellants
at the trial relative to the arrest of the first
respondent. He was
called to travel to Zeerust because Rharadza had been arrested.
He was told that when Rharadza was stopped
he tried to evade arrest
by running away. Capt Kgonare saw that Rharadza's documents reflected
his consignment as teak decking
and was told that in fact Rharadza
had been transporting cigarettes. Capt Kgonare interviewed Rharadza,
who told him that he thought
teak decking was loaded onto the first
respondent's truck. Rharadza said that he and the first respondent
usually slept at a truck
stop in Alberton and Capt Kgonare proceeded
there with Rharadza and four other police officers, including Warrant
Officer Malfune
and Constable Serobe, from Zeerust.
13
I have described how the police officers located the first respondent
and that the first respondent, who told them what
had happened to his
load, was arrested at his truck. Capt Kgonare did not testify in
terms that he, or anyone else, formed a suspicion.
But in
cross-examination it emerged that Capt Kgonare did not arrest the
first respondent. His evidence was that the first respondent
was not
arrested by Capt Kgonare himself but by either WO Malfune or Const
Serobe or by both of them. Neither gave evidence. Capt
Kgonare did
however testify that he was in charge of the operation during which
the first respondent was arrested.
14
The justification for the arrest of the first respondent upon which
the first appellant relies is that the arresting officer
was acting
in terms of
s 40(1)(b)
of the
Criminal Procedure Act, 51 of 1977
,
which reads in relevant part:
A
peace officer may without warrant arrest any person ... whom he
reasonably suspects of having committed an offence referred to
in
Schedule 1... .
15
In
Duncan
v
Minister
of
Law
and
Order,
[1]
the
Appellate
Division
laid
down
the
jurisdictional
facts
which
must
exist
before
the power conferred by
s
40(1)(b)
of
the
Criminal Procedure
Act
may
be invoked: the arresting officer must be a peace officer; the
arresting officer must entertain a suspicion; the suspicion
must
be one
referred
to
in
Schedule 1to the
Criminal Procedure
Act;
and
the suspicion must rest
on
reasonable
grounds.
16
It is not in dispute that police officers are peace officers for the
purposes of
s 40(1)(b)
of the
Criminal Procedure Act and
that fraud
in these circumstances is an offence contemplated in Schedule 1to the
Act. It thus follows that a police officer who
reasonably suspects
someone of having committed such a fraud is empowered to arrest him.
17
In
Powell
NO
and
Others
v
Van
der
Merwe
NO
and
Others,
[2]
the
Supreme
Court
of
Appeal
endorsed
certain
dicta
of
Lord
Devlin
in
Shabaan
Bin Hussein
and
Others
v
Chong Fook
Kam
and Another.
[3]
Paragraphs
36 and 37 of the judgment
in
Powell
read
in relevant part as follows:
[4]
[36]
This Court has endorsed and adopted Lord Devlin's formulation of the
meaning of 'suspicion':
'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
proof is the end.'
[37]
... Lord Devlin went on to point out
'another
distinction between reasonable suspicion and
prima facie
proof.
Prima facie
proof consists of admissible evidence. Suspicion
can take into account matters that could not be put in evidence at
all. ... Suspicion
can take into account also matters which, although
admissible, could not form part of a
prima
facie
case.
18
Whether
a
reasonable suspicion existed must be
considered
objectively.
Reasonable
grounds
of
suspicion
are
those which
would
induce
a
reasonable
person
to
have
the suspicion.
[5]
I
am
prepared to accept
that
a
police officer who was
aware
of what
I
have described as being known to Capt Kgonare
might,
if
he had formed
a
suspicion that
the
first
respondent
was
guilty
of
fraud
in
these
circumstances
have formed
such
a
suspicion
reasonably.
19
But the difficulty in the way of the first appellant is that Capt
Kgonare's state of mind is not directly relevant to this
enquiry
because he did not effect the arrest of the first respondent. Ishall
assume, in favour of the first appellant that even
though he did not
explicitly testify that he held any suspicion at all regarding the
first respondent, Capt Kgonare held a reasonable
suspicion, arising
from what he knew at the time the first respondent was arrested, that
both the first respondent and Rharadza
were knowingly transporting
contraband, that the first respondent offloaded his cargo on the
national road to evade detection and
that the first respondent was
guilty of fraud.
20
But there is no evidence of what WO Malfune and Const Serobe knew at
the crucial time. One does not know whether either
of these officers
formed any suspicion at all. Perhaps they were just following an
order from Capt Kgonare that the purpose of
the operation was to
arrest the first respondent. And, if the actual arresting office did
form a suspicion, then the question arises:
was the information which
the arresting
officer
had enough to
render the hypothetical suspicion reasonable? There is no evidence
that Capt Kgonare shared any information with the
other members of
his team.
21
A
litigant
who
seeks
to
justify
an
arrest
on
grounds
such
as
those
provided
in s
40(1)(b)
of
the
Criminal
Procedure
Act
runs
a
serious
risk, where
the
existence
of
the
requisite
suspicion
or
its
reasonableness
is in
dispute, if the arresting officer does not testify to the
fact
of
the
formation
in
the
arresting
officer's
own
mind
of
the
requisite
suspicion
and
the
factors
which
led
the
arresting
officer
to
form the suspicion.
Where
the
arresting
officer
does
not
testify
at
all, there
may
conceivably
be
cases
in
which
the
existence of the suspicion and its reasonableness can be inferred
from other evidence but this
is
not such a case.
It
has been justly
and
authoritatively
said
that our law demands that those who exercise
public
power subscribe to a culture of justification.
[6]
This
is
particularly so where
public
power is invoked to deprive a person of the precious right to
liberty. The onus was
upon
the
first
appellant
to
bring
himself
within
the
protection
of s
40(1)(b).
In
my
judgment, this
onus
was
not
discharged.
On
this
ground,
the
appeal
against
the
orders
made
in
favour
of
the
first
respondent
must
fail.
22
The quantum of damages awarded to the first respondent for the arrest
and detention, R280 000, was not attacked on
appeal. However, an
additional amount of R377 510,76 was awarded to the first respondent
for loss of income. On the basis that
the first respondent earned
US$150 per month at the time, it would seem that this loss of income
related to the time the first
respondent was in custody and that the
award in this regard should stand. This aspect of the case was only
briefly touched upon
in argument and no submissions in regard to
quantum were addressed to us in argument by either side.
23
In my view, costs should follow the result. The alteration of the
order of the court below has little practical significance
and I do
not think that it can be said that the appellants were substantially
successful on appeal. Nor can it be said that the
costs order made in
the court below was unfair.
24
I propose the following order:
1
The order of the court below is altered to include the following
paragraph at the end of the order:
The
claims against the second defendant are
dismissed.
2
Save as set out above, the appeal is dismissed.
The first appellant must pay the first respondent's
costs of
the appeal.
______________________
NB
Tuchten
Judge
of the High Court
06
April 2016
I
agree. It is so ordered.
______________________
MW
Msimeki
Judge
of the High Court
06
April 2016
I
agree.
______________________
HJ
De Vos
Judge
of the. High Court
30
March 2016
MinPolGombakombaA945.14
[1]
1986 2 SA 805
A at 818F-I
[2]
2005 (5) SA 62
SCA paras 36 and 37
[3]
[1970] AC 942 (PC) [1969] 3 All ER 1627
[4]
Footnotes omitted
[5]
R
v Van Heerden
1958
3 SA
150
T 152E, referred to with approval
in
Duncan,
supra,
814E.
[6]
Prinsloo
v Van Der Linde and Another
1997
3 SA 1012
CC para 25