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[2016] ZAGPPHC 478
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Rashijane v Minister of Safety & Security (35135/12) [2016] ZAGPPHC 478 (15 June 2016)
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REPUBLIC
OF SOUTH AFRICA
HIGH
COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO: 35135/12
15/6/2016
Reportable:
No
Of
interest to other judges: No
Revised.
In
the matter between:
T.
L.
RASHIJANE
Plaintiff
And
MINISTER
OF SAFETY AND
SECURITY
Defendant
JUDGMENT
MAKHOBA
AJ:
[1]
In this matter Plaintiff is Tebogo Rashijane and the Defendant is the
minister of Safety and Security. The plaintiff's claim
is for damages
as a result of alleged unlawful arrest. He therefore claims damages
in the amount of R 400 000 from the Defendant.
Claim 2 and claim 3
were withdrawn by the Plaintiff.
[2]
Plaintiff alleges that on the 27
th
October 2010 he was
arrested and detained by warrant officer Mofokeng acting in the
course and scope of his duties with the Defendant.
[3]
The following is common cause between the parties:
· That the Plaintiff was
arrested by warrant officer Mofokeng who was acting within the course
and scope of his employment
with the Defendant.
· Plaintiff was detained and
brought before a Magistrate. The matter was postponed several times
before Plaintiff was released
on bail on the 19th November 2010.
· The criminal case against the
Plaintiff was ultimately withdrawn by the Prosecutor.
[4]
The following is in dispute:
· That the arrest and detention
of the Plaintiff was unlawful.
· That the detention of the
Plaintiff after the first Appearance before a Magistrate on the 28th
October 2010 until bail
was granted on the 9th November 2010 was
lawful.
· The quantum is also in
dispute.
[5]
Defendant called only one witness whereas the Plaintiff was the only
witness for his case.
[6]
Warrant officer David Mofokeng testified that he is a police officer
in the South African Police Services attached to the organized
crime
unit. He is a police officer for 21 years and 9 years with the
organized crime unit. He testified that he received a telephone
call
from his commander instructing him to go to Vanderbijlpark Police
Station to attend to a ("truck hijacking") robbery
case of
which the suspects were already in custody. When he arrived at the
police station he took over the case as the investigating
officer of
the case. He interviewed the suspects in the case and was informed by
one of the suspects that during the commission
of the robbery they
were assisted by police officers who were driving a marked police
vehicle with a blue light on. The other suspects
managed to flee from
the scene of crime including the police officers who were involved in
the commission of the crime.
[7]
On the 2ih October 2011 one of the suspects Mr George Yassim was
prepared to take him to a house in Brixton to point out some
of the
suspects. He proceeded to the said house in Brixton and he was in a
company of about 15- 20 police officers travelling in
four police
vehicles. On arrival to the said house they could not gain entry into
the house as the house was well secured. They
waited for about 15
minutes trying to draw the attention of the occupants of the house.
[8]
Whilst they were waiting, the SAPS flying squad also arrived on the
scene. A police Van from Brixton police station also arrived
on the
scene driven by the Plaintiff and he was alone in the vehicle. The
Plaintiff alighted from the police van and Mr Yassim
pointed him out
as one of the police officers who assisted them during the "truck
hijacking". Warrant officer Mofokeng
testified further that he
asked Mr Yassim three times whether Plaintiff was one of the suspects
and Mr Yassim answered in the positive.
Thereafter he (warrant
officer Mofokeng) asked the Plaintiff whether he knew Mr Yassim.
Plaintiff explained to him that he was
on the scene because he was
responding to a report of a burglary in progress and he said he did
not know Mr Yassim.
[9]
He then informed Plaintiff of the allegations against him Plaintiff
became aggressive but was nevertheless arrested and taken
to Brixton
police station to inform his superiors about his arrest. The
Plaintiff was thereafter transported to Vanderbijlpark
police
station.
[10]
Yassim took them to a flat in Johannesburg to point out further
suspects. The witness testified that he did not oppose the
Plaintiff
s application to be released on bail.
[11]
Cross - examined by the Plaintiffs legal representative warrant
officer Mofokeng testified that Yassim pointed out the house
and
explained that it is where he met the Plaintiff and other suspects
and he did ask Yassim three times whether the Plaintiff
is one of the
police officers who was involved in the "truck hijacking"
and Yassim answer in the positive.
[12]
In addition warrant officer Mofokeng testified that the case against
the Plaintiff could not proceed to trial as the complainant
never
returned from Zimbabwe and hence the case against Plaintiff was
withdrawn. Defendant then closed its case.
[13]
In his testimony Plaintiff denied that he was ever involved in any
"truck hijacking" or met Yassim. On the 27th October
2010
he was asked by one captain Mkhwanazi to take him home, which he did
and he used the police motor vehicle. On his return back
to the
police station in Brixton he heard on the police radio that there was
a burglary in progress at number […] Filan
Street Brixton. He
proceeded to number […] Filan Street Brixton and on his
arrival at the said address he saw a number of
police officers and he
asked what was happening.
[14]
He testified further that he noticed a person at the back of a police
van and this person was hand cuffed and crying, he was
being
assaulted by the police. One of the police officers upon seeing him
(the Plaintiff) he asked the person at the back of the
police van
whether he (the Plaintiff) was the person and the person at the back
of the police van nodded his head in agreement.
[15]
Thereafter he was placed under arrest and his fire arm taken from him
and he was handcuffed. Warrant officer Mofokeng asked
him whether he
was staying in the house, he denied that he was staying in that house
and told him that he was also attending a
report of a burglary in
progress.
[16]
He was first transported to Brixton police station and his superiors
were informed of his arrest. He was detained and appeared
in court
three times and ultimately bail was granted and he was released on
bail. After he was released on bail he was suspended
from work.
[17]
The story about his arrest was published in the Daily sun newspaper
on the 29th October 2010 and he felt very bad about the
whole ordeal
and was heartbroken as this created a perception to his family and
colleagues that he was a dishonest person.
[18]
Cross - examined by the Defendant's legal representative he testified
that the report of the house breaking was a false call
or alarm.
Asked why he attended the scene alone in the absence of a crew member
as per police standing orders, he testified that
he knew that there
will be other police officers on the scene. Plaintiff thereafter
closed his case.
[19]
The onus rest with the Defendant to establish the lawfulness of the
Plaintiff's arrest on a balance of probabilities, See Minister
of Law
and order and another V Dempsey 1988(3) SA 19 (A) at 38 B-C; Zealand
V Minister of Justice and Constitutional Development
and Another
[2008] ZACC 3
;
2008
(4) SA 458
(cc) at paragraphs 24 and 25.
[20]
Section
40 (1) Act 51
of 1977 reads as follows "(a) A peace
officer may without warrant of arrest, arrest any person;
(a) Who commits or attempt to commit
any offence in his presence;
(b) Whom he schedule reasonably
suspects of having committed an offence referred to
in schedule 1”
[21]
In this matter before me the Defendant must show that the arrest was
lawful. It must be shown that warrant officer Mofokeng
had a
reasonable belief that Plaintiff committed the offence of "truck
hijacking" robbery.
[22]
In Olivier V Minister of Safety and Security and another
2009 (3) SA
434
(w) on page 441 Horn J said " To this might be added that
the facts on which the police officers relies for his suspicions
must
at least be realistic and well founded having regard to the
circumstances of the particular case"
[23]
In Minister of safety and security V Sekhoto and another
2011 (5) SA
367
(SCA) on page 383 paragraph 44 the court said the following
"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 case a
senior officer). The purpose of the arrest is no more than to
bring
the suspect before the 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 the 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 properly to be made by a court (or senior officer).
Whether his decision on that 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 and not only because
the legislature thought so - a peace officer could seldom be
criticized for arresting a suspect
for that purpose"
[24]
The burden of proof in a civil case lies with the Plaintiff to prove
the case on a balance of probabilities, See Pillay V Krishna
and
another
1946 AD 945
[25]
Warrant officer Mofokeng the only witness for the Defendant gave his
testimony in a clear and direct manner. He did not hesitate
to
answered questions or appeared to be uncertain.
[26]
In contrast the Plaintiff's testimony is riddled with inconsistence
and improbabilities. The Plaintiff expects the court to
believe that
immediately when he arrived at the scene where he was arrested, Mr
Yassim was forced to point him out as one of the
police officers who
was involved in the "truck hijacking". It is inconceivable
to this court that warrant officer Mofokeng
being an experienced
police officer will force Mr Yassim to point out Plaintiff, he did
not even know that Plaintiff will show
up on the scene neither did he
knew him before. If indeed warrant officer Mofokeng wanted to
implicate any police officer he would
have forced Mr Yassim to point
out one of the members of the flying squad who also arrived on the
scene. At no stage during the
proceedings in this case did warrant
officer Mofokeng concede that he assaulted or threatened Mr Yassim to
point out anyone as
the suspect.
[27]
The court rejects the testimony of the Plaintiff as improbable and
false.
[28]
In minister of safety and security V Tyokwana
2015 (1) SACR 597
{SCA)
the court said the following on page 607 paragraph 40 "It has
often been stressed by our courts that the duty of a policeman
who
has arrested a person for the purpose of having him or her
prosecuted, is to give a fair and honest statement of the relevant
facts to the prosecutor, leaving it to the latter to decide whether
to prosecute or not, See also Prinsloo and Another V Newman
1975 (1)
481 {A) at 492G and 495A and Minister for Justice and Constitutional
Development V Moleko supra in paragraph 11. In Carmichel
V Minister
of Safety and Security and another (center for Applied Legal studies
Intervening)
[2001] ZACC 22
;
2002 (1) SACR 79
(CC)
(2001) (4) SA 938
;
2001 (10) BCLR
995
; [2001] ZAC (22) paragraph 63 it was held that the police has a
clear duty to bring to the attention of the prosecutor any factors
known to them, relevant to the exercise by the magistrate of his
discretion to admit a detainee to bail"
[29]
In this matter before me warrant officer Mofokeng testified that the
matter was withdrawn against the Plaintiff by the prosecutor
not
because the prosecutor was not satisfied that Plaintiff had a case to
answer but because the complainant (main witness) was
not traced.
[30]
There is no evidence before this court that there was absolutely no
evidence implicating the Plaintiff in the commission of
the alleged
robbery.
[31]
The court is satisfied that the reason why the prosecutor proceeded
with the matter against the Plaintiff was because warrant
officer
Mofokeng submitted his fair and honest statement. See Minister of
Safety and Security V Tyokwana supra.
[32]
The court does not believe that Yassim was forced to point out the
Plaintiff or that the Plaintiff was at the wrong place at
the wrong
time. In my view that is for the trial court to decide.
[33]
The court accepts that warrant officer Mofokeng exercised his
discretion as the arresting officer rationally. See Minister
of
Safety and Security V Sekhoto supra.
[34]
The court is satisfied that the Defendant succeeded in discharging
its onus that the arrest of the Plaintiff was lawful.
[35]
The court is satisfied that the Plaintiff failed to prove his case on
balance of probabilities.
[36]
Plaintiff's claim against the Defendant is dismissed with costs.
______________________
D
MAKHOBA
ACTING
JUDGE OF THE HIGH COURT
GAUTENG
DIVISION, PRETORIA
Date
of hearing: 30 May 2016
Judgment
delivered: 15 June 2016
Appearances:
For
the applicant:
Adv J Viljoen
Instructed
by :
Mills and Groenewalt Attorneys
For
the respondent:
Adv S Mkapane
Instructed
by:
State Attorney (L.Kopman)