About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2016
>>
[2016] ZAGPPHC 948
|
|
Risenga v Minister of Safety and Security (56174/12) [2016] ZAGPPHC 948 (18 November 2016)
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
18/11/16
CASE NO: 56174/12
Reportable: No
Of interest to other judges: No
Revised.
In the matter between:
RISENGA, RISIMATI
FORSTER
Plaintiff
and
MINISTER OF SAFETY AND
SECURITY
Defendant
JUDGMENT
NONYANE. AJ:
[1] Mr Risimati Foster Risenga (the
plaintiff) instituted an action against the Minister of Safety and
Security (the defendant)
for damages arising out of his unlawful
arrest and detention.
[2] At the commencement of the trial I
was informed by both Counsel for the plaintiff and defendant that the
plaintiff has withdrawn
Claim 2 of his particulars of claim and his
objection to the defendant's Notice of Amendments to the plea. The
plaintiff tendered
costs occasioned by such withdrawal. I was also
informed that the defendant has also waived its special pleas.
[3] It is common cause between the
parties that the plaintiff was arrested without a warrant at Mamelodi
East on 08 February 2012
by Warrant Officer Ackerman (hereinafter
referred to as "Ackerman") acting within the course and
scope of his employment
with the defendant. It was also common cause
between the parties that the charges against the plaintiff were
withdrawn on the 19
June 2012.
[4] The issue that has to be
determined by the Court is the lawfulness of the plaintiff's arrest
and the subsequent detention.
[5] Plaintiff claims that he was
unlawfully arrested and detained for a period of two days.
[6] Defendant's defence is based on
the provisions of
Section 40(1)(b)
of the
Criminal Procedure Act 51
of 1977
as amended (hereinafter referred as "the Act")
[7] The Facts of this case are that
the plaintiff was arrested by Ackerman on the 08 February 2012 at
Mamelodi East at around 6am.
[8] The plaintiff testified that on
the morning in question he was preparing to go to work when two
Police officers knocked on his
room. One of the police officers was
Ackerman.
[9] On entering his room the other
police officer who was with Ackerman asked him what clothes he wears
to work. He told him that
he wears a blue work suit. He also asked
him if he drinks and he told him that he does not drink. The police
officer then took
his Identity document which was on the table and
produced handcuffs. He informed him that he was under arrest for
rape. He asked
the police officer if he was joking but the police
officer continued to handcuff him. He then realised that it was
serious and
he told both police officers that he was innocent but
they ignored him.
[10] They then took him outside and
put him in their car and proceeded to Mamelodi Hospital. On the way
he asked them who the complainant
was but Ackerman told him that he
will meet the complainant in Court.
[11] When they arrived at Mamelodi
Hospital the plaintiff's blood was drawn and he was taken to the
Police Station. He was charged
with rape the following day and the
charges against him were withdrawn on 19 June 2012.
[12] Ackerman testified that he
received a call from Monica Sebothoma (hereinafter referred to as
"the complainant") advising
him that she saw the person who
raped her. He then on the 08 February 2012 together with his
colleague went to the complainant
who told them that the suspect was
staying two houses away from her house. They went there and on
arrival they asked where the
men rooms were. They knocked at each
room and in one of the rooms the plaintiff responded and opened the
door and the complainant
pointed him out as the man who raped her. It
is important to point at this juncture that the plaintiff's testimony
was that he
did not see the complainant pointing him as the culprit.
[14] Ackerman's further testimony was
that they went inside and searched the room and could not find the
cell phone that was robbed
from the complainant. The plaintiff also
disputed this testimony and insisted that his room was not searched
[15] The defendant's Counsel argued
that the arrest was justified as Ackerman is a police officer and
contended that the defendant's
defence is premised on
Section
40(1)(b)
of the Act and that it was properly pleaded in the
defendant's plea.
[16] Counsel for the defendant
contended that from the evidence and documents placed before Court,
it should be common cause that
Ackerman is a peace officer whom,
after entertaining the suspicion, arrested the plaintiff for
committing a Schedule 1 offence
of rape.
[17] She further contended that the
only question that needs to be asked is whether the suspicion was
reasonable.
[18] Counsel for the plaintiff
rejected this argument and contended that what is in dispute is not
whether or not the suspicion
was reasonable, but whether Ackerman had
in actual fact entertained the suspicion.
[19] The plaintiff's Counsel argued
that not all 4 jurisdictional factors were pleaded in the defendant's
plea to justify the arrest
as required in terms of
Section 40(1)(b)
of the Act. He referred the Court to paragraph 13.2 of the
Defendant's Plea which read:
"13.2 The Defendant Pleads
specifically that the Plaintiff was lawfully arrested in terms of
Section 40(1)(b) of the Criminal
Procedure Act 51 of 1997 (as
amended), in that
13.2.1
The arresting Officer W/O Ackerman was a peace officer as defined in
Act 51 of 1977;
13.2.2
W/O Ackerman reasonably suspected Plaintiff of having committed an
offense referred to in Schedule 1 of the Criminal
Procedure Act
namely the offence of rape."
[20] The plaintiff's Counsel argued
that the aspect of the reasonableness of the suspicion may only be
considered after the arresting
officer has entertained his suspicion
before effecting the arrest.
[21] He contended that,
in casu,
Ackerman did not entertain the suspicion and therefore the issue
of the reasonableness of the suspicion does not arise.
[22] I tend to agree with the
contention of the plaintiff counsel. "Arrest without warrant is
only permissible where the peace
officer entertains a
reasonable
suspicion
that the person he is arresting has committed an
offence listed in
Shedule
1."
See Etienne Du Toit et
al
"Commentary on the Criminal Procedure Act" Service
51, 2013 at 5-12 .
[23] The hurdle that this court is
faced with is the evaluation of whether the requirements of effecting
arrest without a warrant,
particularly the entertaining of the
suspicion, as set out in section 40(1)(b) of the Act had been
satisfied by Ackerman before
arresting the plaintiff.
[24] Counsel for the defence referred
me to the cases of
The Minister of Safety and Security v Sekhoto
and Another
2011 (1) SACR 315
(SCA),
Vilakazi v Minister of
Safety and Security
(25211/2010) North Gauteng High Court [10 May
2013] and
Rusike v Minister of Police
(52960/2009) North
Gauteng High Court [27 March 2013] which she contended are similar to
the present case.
[25] She argued that the plaintiffs in
the cases of
Vilakazi
and
Rusike
were arrested in terms
of section 40(1)(b) of the Act on the basis of having been pointed
out by the complainant to the arresting
officers and the courts found
the arrest to be lawful.
[26] On my analysis of these cases, I
found that they are distinguishable from the present case in that the
issues to be decided
were not issues relating to the entertainment of
the suspicion. In the
Vilakazi
case the court had to decide
the reasonability of the suspicion.
[27] I also found that the arresting
officers, in all these cases, had in actual fact entertained the
suspicion before effecting
arrest.
[28] In
Rusike
Inspector Botha
did not effect arrest on mere pointing out of Rusike (the suspect) by
Naidoo (the complainant). He entertained the
suspicion by reading the
docket, interviewing the complainant and when the suspect was pointed
out to him, the suspect was in possession
of the complainant's truck
and the keys and he then arrested him.
[29] Also in
Vilakazi
Constable
Phiri did not just arrest Ms Vilakazi (the suspect) on the basis that
she was pointed out by the complainant. He, over
and above the
pointing out of the suspect by the complainant to him, proceeded to
entertain a suspicion by asking the suspect whether
she knows the
source of the R30 000.00 that was fraudulently deposited into her
account. Ms Vilakazi did not know the source of
the money and on
further questioning she intimated to Constable Phiri that she wanted
to make a withdrawal and invest some of the
money. Constable Phiri
was also shown a statement in respect of the fraudulent transaction.
As Ms Vilakazi was a student, unemployed
and did not know the source
of the money, Constable Phiri arrested her on suspicion of having
committed fraud.
[30] In the present case Ackerman
admitted that the arrest of the plaintiff was solely based on the
pointing out of the plaintiff
by the complainant as the suspect who
raped her. He testified that he avoided asking him question before
his rights could be read
out to him which usually happens at the
police station.
[31] Except for the pointing out
nothing has been placed on record to prove that Ackerman entertained
the suspicion. He did not
even enquire from the complainant how come
she did not know the plaintiff when they are actually neighbours.
[32] It is clear from the papers
before me and the evidence tendered that Ackerman in effecting arrest
did not satisfy all the jurisdictional
facts stated in Duncan v
Minister of Law and Order,
1986 (2) SA 805
(A). He failed to
demonstrate that this crucial element was satisfied before effecting
arrest.
[33] The parties have indicated to me
that the issue of quantum has become settled. Counsel for the
plaintiff disclosed that the
amount the parties have agreed upon, in
the event that I find the arrest to be unlawful, is R60 000,00.
[34] Having heard arguments from both
counsel for the plaintiff and defendant, considered the cases cited
above and all relevant
factors, I find the arrest and subsequent
detention of the plaintiff to be unlawful.
[35] It is trite that costs should
follow the cause. In this case costs of suit are awarded to the
plaintiff including the costs
of counsel.
[36] In the result the following order
is made:
1. Judgment is granted in favour of
the plaintiff for payment of the sum of R60 000.00.
2. The defendant is ordered to pay
interest on the sum of R60 000.00 at the rate of 0.50% calculated
from the date of judgment to
date of payment.
3. The defendant is ordered to pay the
plaintiff's costs of suit including the costs of counsel.
_______________
NONYANE AJ
ACTING JUDGE OF THE
HIGH COURT OF SOUTH
AFRICA, GAUTENG
DIVISION, PRETORIA
Counsel for the
Plaintiff
:
Adv. R
Baloyi
Instructed
by
:
Mashamba Incorporated
Counsel for the Defendant
:
Adv. L
A Pretorius
Instructed
by
: The
State Attorney