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[2016] ZAGPPHC 869
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Baloyi v Minister of Police and Another (A77844/2014) [2016] ZAGPPHC 869 (23 September 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NUMBER: A77844/2014
DATE:
2016/09/ 23
In
the matter between:
THABO
THOMAS
BALOYI
.................................................................................
PLAINTIFF
and
THE
MINISTER OF
POLICE
................................................................
FIRST
DEFENDANT
KENNETH
NGUBANE
....................................................................
SECOND
DEFENDANT
JUDGMENT
STRIJDOM
AJ
INTRODUCTION
1.
The Plaintiff's claim is for damages for alleged wrongful and
unlawful arrest and detention.
2.
Plaintiff claim include
inter alia
unlawful arrest, detention,
contumelia and mental anguish.
3.
Plaintiff claims a quantum of R830,000.00.
COMMON
CAUSE FACTS BETWEEN THE PARTIES
4.
The Plaintiff was arrested by members of the First Defendant on 16
May 2014 and released on bail later the same day.
5.
The Plaintiff was detained for 14 (fourteen) hours.
6.
The Second Defendant did find a firearm in the possession of the
Plaintiff.
ISSUES
IN DISPUTE
7.
The issues that arise for consideration are whether or not, the
Second Defendant had formed a reasonable suspicion that the Plaintiff
had committed an offence falling under schedule 1 of the
Criminal
Procedure Act, 51 of 1977
.
8.
The Defendants raised a defense relying upon section 40( 1)(b) of the
Criminal
Criminal Procedure Act, 51 of 1977
. The salient wording of
section 40(
1
)(b) reads:
"(1
A peace officer may without warrant arrest any person:
(a)
····················
(b)
Whom he reasonably suspects of having committed
an
offence referred to in Schedule 1
....."
PLAINTIFF'S
CASE
9.
The Plaintiff's evidence can be summarised as follows:
9.1.
He went to work on 3 May 2014 at 05h20 in the morning. He was
employed at Putco as a bus driver and has been working there
for 18
(eighteen) months with the complainant (Johannes Kaloi) as his direct
supervisor.
9.2.
He testified that Dibakwane started working at the company and that
he is the driver with the complainant as his direct supervisor.
At
all material times he was always referred by everyone including the
supervisor as Thabo Thomas Baloyi and Gilbert Dibakwane
as Gilbert
Dibakwane.
9.3.
He further testified that on that day he did not have a firearm in
his possession and could not have carried a firearm to work
as the
security officers searches everyone who enters the premises and they
would confiscated it.
9.4.
He saw the complainant (Johannes Kaloi) at the depot and his
encounter with him was not hostile. The complainant instructed
him to
knock off when he parked the bus at around 1Oh48 in the morning. He
testified that he was at work from 3 May 2014 until
the day of his
arrest except on Sundays.
9.5.
He further testified that the complainant was not at his house at the
time of his arrest.
9.6.
He testified that he was not aware that the complainant opened a case
against him.
9.7.
After he was released from detention his employer conducted a
disciplinary hearing regarding the alleged pointing of a firearm.
He
was acquitted on the charge against him. The complainant also
testified in the disciplinary hearing.
DEFENDANT'S
CASE
10.
The evidence of the Second Defendant Kenneth Ngubane can be
summarised as follows:
10.1.
He has been employed in the SAPS at Orlando Police Station for 10
years. He received a police docket on 12 May 2014 to investigate.
He
testified that he perused the contents of the docket as well as the
statement made by the complainant (Johannes Koloi). It was
alleged by
Johannes Koloi that the Second Defendant was known to him as
Dibakwane and that he pointed him with a firearm.
10.2.
Kenneth Ngubane further testified that he went to the complainant's
place of employment regarding the alleged incident but
could not find
him. He left a note for him to come to the police station. On the
same day the complainant came to his office with
the details of the
Plaintiff and assured him that he will be able to point him out.
10.3.He
testified that the complainant narrated what happened to him and
explained that he told the Plaintiff to be home on 3 May
2014. The
Plaintiff later met and pointed the complainant with a firearm.
10.4.He
testified that he informed the complainant that the police wil be
conducting an operation from 15 May 2014 at night to arrest
all
suspects linked to different crimes and requested the complainant to
accompany them to identify the Plaintiff and to point
out where the
Plaintiff is staying.
10.5.
He further testified that the complainant went with them to the
Plaintiff's residence on 15 May 2014 after midnight. The Plaintiff
was sleeping in the bedroom. The complainant was with them at al
relevant times. They proceeded to the bedroom and he asked the
Plaintiff whether he was Thomas Baloyi. The Plaintiff answered in the
affirmative and the complainant pointed the Plaintiff as
the person
who pointed him with a firearm.
10.6.
Kenneth Ngubane asked the Plaintiff whether or not he has a firearm
and he answered to the affirmative. He asked the Plaintiff
where he
kept his firearm. The Plaintiff showed him the safe and gave him the
keys to the safe. He then opened the safe and took
the firearm as an
exhibit. He further advised the Plaintiff that he arrest him for
pointing the complainant with a firearm. The
Plaintiff was taken to
the police station and locked up in the holding cells. He was later
charged and was released on bail.
THE
UNLAWFULNESS OF THE ARREST
11.
It is trite law that the onus rested on the Defendants to justify the
Plaintiff's arrest. The question is: did Constable Ngubane
entertain
a reasonable suspicion that the Plaintiff has committed a schedule 1
offence.
12.
The Act in schedule 1 states:
“
A
ny offence, except
the offence of escaping from lawful custody in circumstances other
than the circumstances
referred to immediately
hereunder, the punishment wherefore may be
a
period of
imprisonment exceeding six months without the
option of
a
fine."
13.
Section
39(d) of the Firearm Control Amendment Act
states:
"It
is an offence to point (a) any firearm,
a
muzzle loading
firearm or an airgun, whether or not it is loaded or capable
of
being discharged, at any person, without good reason
to do so or anything which is likely to lead
a
person to
believe that it is
a
firearm,
a
muzzle firearm or an
airgun at any other person,
without good reason to do
so."
14.
Schedule 4 of the Firearms Control Amendment Act, 60 of 2000
makes provision of a sentence of two years imprisonment for pointing
a firearm without the option of a fine.
15.
It was held
in
Duncan
v Minister of Law and Order
[1]
the
jurisdictional facts for a section 40( 1)(b) defence are that:
"(i)
The arrestor must be
a
peace officer;
(ii)
The arrestor must entertain
a
suspicion;
(iii)
The suspicion must be that the suspect committed an offence
referred to in schedule 1;
and
(iv)
The suspicion must rest on reasonable grounds
.......
16.
If the jurisdictional 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.
17.
Constable Ngubane testified that he suspected the Plaintiff to have
committed the offence of pointing a firearm at Johannes
Kaloi after
he perused the statement of the complainant.
18.
What acerbated his suspicion is that the complainant pointed the
Plaintiff out as the person who pointed him with a firearm
and a
firearm was found in the Plaintiff's possession.
19.
His evidence was not seriously contested in cross-examination by
counsel for the Plaintiff. He did not contradict himself and
his
evidence was corroborated by the common cause facts in this case. He
was consistent about his version of events.
20.
Counsel for the Plaintiff submitted that Constable Ngubane was
obliged before arresting the Plaintiff to evaluate the objective
facts at his disposal and that the suspicion formulated by Ngubane
was not founded on a reasonable ground and accordingly the arrest
was
unlawful.
21.
It was further submitted by counsel for the Plaintiff that Constable
Ngubane did not exercise his discretion rationally and
in good faith.
22.
It is trite law that anyone that wants to challenge the discretion of
the Defendant must plead it in his papers, The Plaintiff
did not
plead the issue or raise it during the trial. However, even if it was
pleaded, the suspicion which Constable Ngubane entertained
was not
arbitrary. He perused the statement of the complainant, consult with
the complainant at his place of employment and took
the complainant
to point out the suspect at his residence. He also enquire from the
Plaintiff whether he possess a firearm and
took possession of the
firearm as an exhibit.
23.
In my view all the jurisdictional facts were met and the discretion
to arrest was properly exercised.
24.
The evidence tendered by the Plaintiff did not change the objective
facts and common cause facts, In fact, most of the relevant
evidence
was not disputed by the Plaintiff.
25.
In
Johannes
Papa Kgapola v Minister of Police
[2]
it was held
that:
"Objectively
speaking,
a
pointing out of
a
suspect established
a
prima facie case and affecting arrest cannot be said to
have been unreasonable under those circumstances.
26.
Having considered the conspectus of evidence I am persuaded that the
Defendant's discharged the onus rests upon them to prove
the
jurisdictional facts and that Constable Ngubane exercised his
discretion reasonably.
27.
I am of the view that the Plaintiff failed to made out a case for
unlawful arrest and detention.
28.
It follows that the Plaintiff's claim is dismissed with costs.
_____________________
JJ
STRIJDOM
ACTING
JUDGE OF THE HIGH COURT PRETORIA
DATE
:
APPEARANCES:
Advocate
for Plaintiff:
..................
Adv T
Morudu
Attorneys
for Plaintiff:
…..............
Ndiubane
Attorneys
Advocate
for Defendant:
….........
Adv AN
Tshabalala
Attorneys
for Defendant:
..............
State
Attorney
[1]
1986 (2) SA 805 (A)
[2]
(74795/2014) 2016 ZAGPPHC 429