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[2016] ZAGPPHC 429
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Kgapola v Minister of Police (74795/2014) [2016] ZAGPPHC 429 (8 June 2016)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
Policy
IN
THE HIGH
COURT OF SOUTH AFRICA
GAUTENG
DIVISION,
PRETORIA
Case
Number: 74795/2014
Date:
8/6/2016
(1)
REPORTABLE: YES.
(2) OF
INTEREST TO OTHER JUDGES: YES
JOHANNES PAPA
KGAPOLA
PLAINTIFF
and
MINISTER
OF
POLICE
DEFENDANT
JUDGMENT
Bagwa
J
[1]
The Plaintiff herein is Johannes Papa Kgapola an unemployed male of
[…], Midrand.
[2]
In
casu
he sues the Minister of Police as a result of an
incident which occurred on 12 March 2014 when members of the South
African Police
Service arrested the Plaintiff without a warrant.
[3]
He alleges that when the said members arrested him, they did not
sufficiently furnish him with reasons for his arrest and after
the
arrest he was taken to Ivory Park Police Station where he was
detained.
[4]
Plaintiff alleges that the conduct of the Plaintiff caused him
humiliation and embarrassment as he was arrested in full view
of the
members of the public.
[5]
Plaintiff further alleges that his arrest by members of the South
African Police Services was wrongful and unlawful and that
he
suffered damages as a result thereof for deprivation of liberty,
discomfort and inconvenience, contumelia and loss of income.
[6]
The defendant has defended the claim by Plaintiff and in his plea he
states that Plaintiff was lawfully arrested by a police
officer in
terms of
section 4(1)(b)
of the
Criminal Procedure Act 51 of 1977
for
a Schedule 1 offence of rape.
[7]
At the commencement of the trial the parties agreed that the
Defendant had the right to begin as the burden of proof rests on
the
arresting officer to prove that the arrest was lawful.
(See
Minister
of Safety and Security and Another
v
Swart
2012
(2) SCA at 191).
[8]
The first witness to be called by the Defendant was Constable Daphne
Mabokela who testified about a rape complaint which was
laid at Ivory
Park Police Station by the complainant's mother and the complainant
who was 13 years old at the time, on 3 March
2014. The complainant
indicated to her at the time of taking of her statement that she did
not know the assailant but could identify
him if she saw him again.
[9]The
next witness was the arresting officer, Constable Malisela Kutu who
testified that he responded to a call from the South
African Police
Service Radio Controller to attend to a complaint at […]. He
also testified that the plaintiff was pointed
out by the complainant
who was accompanied by her father. He further stated that he informed
the suspect of his rights which included
his right to respond or
remain silent after he had informed him that he was being arrested
for rape. This occurred after he had
been pointed out by the
complainant.
[10]
The defendant also presented the testimony of Sergeant Goodstaff
Swartz who was the investigating officer. Swartz testified
how the
case was allocated to him for investigation on 04 March 2014. At the
time of allocation he could not take the matter further
as no suspect
had been identified. He was notified by Kutu after the suspect had
been arrested and put into custody.
[11]
Swartz testified further that he took the plaintiff to hospital for
blood sample tests and the following day booked him out
to attend
court where bail was refused and the case remanded to 26 March 2014.
The plaintiff was released on 27 June 2014 as a
result of negative
DNA tests and a nolle prosequi decision by the prosecution.
[12]
The plaintiff gave evidence and testified about being arrested at his
home in Ivory Park and detained at Ivory Park Police
station by
members of the South African Police Service without a warrant. Upon
inquiry he was informed that he was being arrested
for rape. He
stated that no rights were read out to him and that the person who
pointed him out to the police was the complainant's
father and not
the complainant as testified by constable Kutu.
[13]
Plaintiff also presented the evidence of Thabiso Mamabolo who was
with the plaintiff at the place and time of his arrest. Mamabolo
also
stated that the person who pointed the plaintiff to the police was a
gentleman who drove an audi motor vehicle and that two
police
officials thereafter arrested him and informed him that he was being
arrested on a rape charge. According to him there was
no thirteen
year old child at the place and time of plaintiff's arrest.
EVALUATION
[14]
Central to the consideration of whether plaintiff's arrest was
unlawful or not are
sections 39
and
40
(1) (b) of the
Criminal
Procedure Act together
with the evidence presented by the parties.
[15]
What we have to do with here is the so called Wednesbury principles
which were referred to in the judgment of Greene MR in
Associated
Provincial
Picture
Houses Ltd
v
Wednesbury Corporation
(1948)
2
ALL ER
680.
[16]
These principles are also discussed in the case of
Minister
of Safety
and Security
v
Sekhoto
2011
(5) SA
367
at page
381
(SCA)
where Harms DP expressed himself as follows:
"[34]These
principles are in substance no different from those formulated by
Innes ACJ in
Shadrack
v
Union Government ( 1912 Av 642 at
651-652).
Now it is settled law that where a matter is left to
the discretion or the determination of a public officer, and where
his discretion
has been bona fide exercised or his judgment bona fide
expressed, the court will not interfere with the result. Not being a
judicial
functionary no appeal or review in the ordinary sense would
lie; and if he has duly and honestly applied himself to the question
which has been left to his discretion, it is impossible for a court
of law either to make him change his mind or to substitute
its
conclusion for his own.............There would be circumstances in
which interference would be possible and right. If for instance
such
an officer had acted mala fide or from ulterior and improper motive,
if he has not applied his mind to the matter or exercised
his
discretion at all......in such cases the court might grant relief.
But it would be unable to interfere with a due and honest
exercise of
discretion inequitable or wrong."
[16]
Section 39 (2) of the Criminal Procedure Act 51 of 1977 (CPA)
provides that the person effecting the arrest shall when
doing so
inform the person being arrested about the reason for the arrest and
in line with sections 25 of the constitution inform
him of his rights
or give him the so-called Notice of rights.
[17]
According to the evidence presented through constable Kutu this
procedure was adhered to when the plaintiff was arrested. The
investigating Officer Sergeant Swartz also repeated the exercise when
he interviewed the plaintiff who was then a suspect, at the
Ivory
Park Police Station.
[18]
Section 39
(3) of the
Criminal Procedure Act provides
that the
arrested person be detained in custody until he is lawfully
discharged or released from lawful custody. According to the
evidence
presented by the aforesaid police officials, a charge of rape was
preferred against the plaintiff under Ivory Park Cas
No 46/03/14. He
was held until he was lawfully discharged and released as stated
above on 27 June 2014.
[19]
Whilst
Section 40
(1) (b) of the
Criminal Procedure Act provides
for
the arrest of a person by a peace officer whom he suspects of having
committed an offence referred to schedule 1 of the
Criminal Procedure
Act, there
are certain jurisdictional requirements which are in line
with Wednesbury principles which have to be satisfied.
19.1
The arresting officer must be a peace officer;
19.2
The arrestor must entertain a reasonable suspicion;
19.3
The suspicion must be that the suspect committed an offence referred
to in schedule 1 of the
Criminal Procedure Act, and
19.4
The suspicion must rest on reasonable grounds.
[20]
These jurisdictional requirements must be established by the
defendant in order to escape liability.
See
Duncan v minister of law and order
1986 (2) SA 805
A
[21]
In
Minister of Safety and security v Sekhoto
2011 (1) SACR 315
SCA
at Para 28
the following was stated;
"[28]
Once the jurisdictional facts for an arrest, whether in terms of any
paragraph of
section 40
(1) or in terms of
section 43
, are present, a
discretion arises. The question whether there are any constraints on
the exercise of discretionary powers is essentially
a matter of
construction of the empowering statute in a manner that is consistent
with the constitution. In other words, once the
required
jurisdictional facts are present, the discretion whether or not to
arrest arises. The officer, it should be emphasised,
is not obliged
to effect an arrest". This was made clear by this court in
relation to
Section 43
in
Groenewald v Minister of Justice.
[29]
As far as 40 (1) (b) is concerned, Van Heerden JA said the following
in Duncan (at 818 H-J): 'If the jurisdiction requirements
are
satisfied, the peace officer may invoke the power conferred by the
subsection i.e. he may arrest the suspect. In other words,
he then
has a discretion as to whether or not to exercise that power
(cf
Holgate
-
Mohammed)
v Duke
[
1984]
1 ALL
ER
1054
(HL) at
1057).
No doubt the discretion must
be properly exercised. But the grounds on which the exercise of such
discretion can be questioned are
narrowly circumscribed. Whether
every improper application of a discretion conferred by the
subsection will render an arrest unlawful,
need not be considered
because it does not arise in this case’
[30]
He proceeded to say that an exercise of the discretion in question
will be clearly unlawful if the arrestor knowingly invokes
the power
to arrest for a purpose not contemplated by the legislature ........"
[22]
In casu the arresting officer was responding to a request or
instruction conveyed through the South African Police Services
Controller to attend a pointing out of a suspect in respect of a rape
charge. After the pointing out he effected an arrest.
[23]
According to Constable Kutu, even though the complainant was a
thirteen year old child, she was in the company of her father
when
the pointing out was done. A complaint had already been registered on
03 March 2014 at Ivory Park police Station where Kutu
was stationed.
This pointing out was therefore a follow up in the investigation of a
case in which no suspect had been identified
at the time the
complaint was registered. Objectively speaking therefore, a pointing
out of a suspect established a prima facie
case and effecting an
arrest cannot be said to have been unreasonable under those
circumstances.
See
Swart v minister of safety and security
2012 (2) SACR 226
SCA
[24]
At the time of effecting the arrest, constable Kutu was a member of
the South African Police Service and as such was an arresting
officer
as defined in
section 5
of the
South African Police Service Act 68 of
1995
exercising his powers in terms of section 13 of the South
African Police Act read with the
Criminal Procedure Act.
[25
]
Section 13 (1) of the South African Police Act provides that subject
to the Constitution and with due regard to the fundamental
rights of
every person, a police officer may exercise such powers and shall
perform such duties and functions as assigned to a
police official.
Section 13 (3) (a) also enjoins such member to perform such duties in
a manner that is reasonable in the circumstances.
[26]
The plaintiff's case is mainly based on the submission that the
arrest was not justifiable in that it was not based on reasonable
or
rational grounds. That submission is based on plaintiff's evidence to
the effect that plaintiff was not pointed out by the complainant
on
the day of his arrest but by the father. The plaintiff alleges that
the father was alone and not accompanied by the complainant.
[27]
As already mentioned (supra) the defendant's evidence as presented by
constable Kutu contradicts this version. The outcome
is that the two
versions are mutually exclusive or contradictory in regard to the
manner the arrest was effected. This implies
that this court has to
weigh the probabilities based on the credibility of the witnesses.
[28]
I found Kutu to be a credible witness. He gave his evidence in a
chronological manner and was not swayed by a probing cross
examination. From the time that he received a telephone instruction
from the Controller to the time of the pointing out by the
complainant who was accompanied by her father, he was consistent with
his evidence.
[29]
The plaintiff also presented his evidence and stuck to his version
that the complainant's father was alone when he pointed
him out but
went on to state that the complainant was present at the police
station even though he did not see her. He was told
that the
complainant was crying and that is why she was not brought into the
room where he was.
[30]
Kutu was just a policeman on patrol when he was called. He was
informed that the case involved a rape incident. The probabilities
of
a policeman in a case involving rape accepting a pointing out of the
alleged rapist by a male person are minimal if at all.
Further, the
presence of the girl complainant at the police station which was
confirmed by the plaintiff corroborates Kutu's version
rather than
the plaintiff s version.
[31]
It is Kutu's version that from the place of arrest, they proceeded to
the police station and that the complainant was accompanied
by her
father, hence her presence at the police station. I accordingly find
that the defendant's version is to be preferred in
this regard than
that of the plaintiff.
[32]
Based on this finding, the actions of Kutu subsequent to the pointing
out by the complainant of the plaintiff as the person
who raped her
became both rational and reasonable. In my view, it would have been a
dereliction of duty on the part of Kutu not
to effect an arrest in
the circumstances described by the defendant especially since the
suspect had not been identified until
the time of the pointing out.
[33]
An arrestor's decision must be based on an intention to bring the
arrested person to justice. Kutu arrested plaintiff, took
him to
Ivory Park Police station and handed him over to the investigating
officer, Sergeant Goodstaff Swartz. Plaintiff was taken
to Hospital
for blood tests by Swartz and on the following day taken to court
within the prescribed forty eight hour period. The
matter was
thereafter dealt with by the magistrate court according to justice,
until the plaintiff was duly released on 27 June
2014. No
irrationality or arbitrariness could therefore be read into the
actions of Constable Kutu or any other official who processed
him
until his release by the court.
[34]
In the circumstances I find that the police officials employed by the
defendant merely executed powers they are entrusted with
by the law
of bringing and securing the attendance of the plaintiff to court
after he had been duly charged and warned of his rights
regarding a
schedule 1 offence.
[35]
Plaintiff's testimony and submissions by counsel seemed to suggest a
claim for wrongful and unlawful detention but no such
claim was
alluded to in the pleadings. I can therefore make no finding in that
regard.
[36]
Upon a consideration of all the facts and listening to counsel in
this matter I have come to the conclusion that plaintiff's
arrest was
justified in terms of Section 39 and Section 40 (1) (b) of the
Criminal procedure Act 51 of 1977.
[37]
Wherefore the following order is made:
The
plaintiff's claim is dismissed with costs including costs of counsel.
S.A.M
BAQWA
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
He
ard
on:
2 -3 June
2016
Delivered
on:
08 June 2016
For the
Pl
aintiff:
Adv B.N Mbiko
For the Defendant:
Adv W.N Mothibe