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[2015] ZAGPPHC 143
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Ndlovu v Minister of Police and Another (30007/2013) [2015] ZAGPPHC 143 (4 March 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION. PRETORIA)
CASE NO: 30007/2013
DATE: 4 MARCH 2015
NOT REPORTABLE
NOT OF INTEREST TO
OTHER JUDGES
IN
THE MATTER BETWEEN
:
SIPHO COLIN
NDLOVU
.................................................................................................
PLAINTIFF
AND
MINISTER OF
POLICE
.................................................................................
FIRST
DEFENDANT
NATIONAL DIRECTOR
OF PUBLIC
PROSECUTIONS
.......................................................................................
SECOND
DEFENDANT
JUDGMENT
KOLLAPEN J:
1. In this action,
the plaintiff seeks the payment of eight hundred and fifty thousand
Rand in damages against the respondents arising
out of his arrest on
the 20
th
of May 2010 and his subsequent detention until
the 30
th
July 2010.
2
.
In the trial proceedings that ensued, the plaintiff testified in his
own case while the defendants called five witnesses to testify
on
their behalf.
BACKGROUND
FACTS
3
.
The plaintiff was arrested on the 20
th
of May 2010 at Tembisa by members of the South African Police
Service, led by Warrant Officer van der Werken. He was then taken
to
the Sandton Police Station where he was held until his first
appearance in Court on the 24
th
of May 2010.
4. He appeared
in the Alexandra Magistrate’s Court on the 24
th
of
May 2010 and was charged with armed robbery with aggravating
circumstances. The matter was initially postponed to the 31st of
May
2010 for a bail application and for the plaintiff to procure the
services of an attorney. However the charge sheet indicates
that
later on the 24 of May 2014, an attorney, Mr Dippenaar, appeared for
the plaintiff and the matter was postponed to the 9
th
of
June 2010 for a bail application.
5. There were
various appearances from the 9
th
of June 2010 until the
30 of July 2010 when the charges against the plaintiff were withdrawn
by the State, whereafter the plaintiff
was released. In analysing
those other appearances and the reasons why the matter was never
dealt with substantially, the following
also appears from the charge
sheet:
a.
On
the 9
th
of June 2010 the matter was postponed to the 11 of June 2014 as the
docket was not available;
b.
On
the 11
th
of June 2010 the matter was postponed to the 8
th
of July 2010. No reasons are recoded on the charge sheet;
c.
On
the 8
th
of July 2014 the matter was postponed to the 15
th
of July 2010 on account of the withdrawal of the plaintiffs attorney;
d. On the 15
th
of July 2010 the matter was postponed to the 16
th
of July
2010 for an attorney and bail;
e.
On
the 16
th
of July 2010, Mr Dippenaar was on record for the plaintiff and the
matter was postponed to the 23
rd
of July 2010;
f.
On
the 23
rd
of July 2010, the charge sheet indicates there was ‘no lawyer’
and the matter was postponed to the 30
th
of July 2010;
g.
On
the 30
th
of July 2010, the Senior Public Prosecutor decided to withdraw the
charges against the plaintiff.
6. Warrant Officer
van der Werken was the investigating officer in a robbery where the
complainants were robbed of approximately
one million Rand. The
complainants had drawn cash from a bank in Meyerton and then driven
to Rivonia where the robbery took place.
The police believed that the
robbers were in the bank in Meyerton and followed the complainants to
Rivonia.
7
.
Acting
on information from his informer, Warrant Officer van der Werken
interviewed two persons who were in custody at the time,
only
referred to as Palala and BK and also showed them photographs taken
from video footage in the bank in Meyerton. They both
identified the
person in the photographs as one Sipho Ndlovu, also known as ‘Small’
and informed him that the latter
was involved in the robbery and also
pointed him out in another photograph at the scene of the robbery in
Rivonia. Warrant Officer
van der Werken also obtained information
from another person he interviewed that the people involved in the
Rivonia robbery included
this ‘Small’.
8. Working with his
informer in Tembisa who knew ‘Small’, he finally received
information on the 20
th
of May 2010 that ‘Small’
was in Tembisa. He was initially told that ‘Small’ was in
Pretoria for a while.
This then led to the arrest of the plaintiff in
Tembisa on the 20
th
of May 2010.
9.
Warrant
Officer van der Werken’s further evidence was that the
plaintiff had told him he was aware of the robbery that was
being
investigated, that he was not involved in it and then he provided the
names of those involved which names included one Sipho
Ndlovu (also
known as ‘Small’). It appears that the plaintiffs stance
was that there were two different Sipho Ndlovu’s
and that he
was not the one involved in the robbery. The witness later made
enquiries with his informer about the possible existence
of another
Sipho Ndlovu (known as ‘Small’) but it appears that the
informer was not aware of such a person.
10
.
Finally Officer van der Werken said that when the matter went to
Court he intimated to the prosecutor that he wished to oppose
bail
inter alia
because
of the plaintiffs previous conviction for robbery, the evidence of
his involvement in the offence, that he was on bail for
another case
of robbery and that he had no fixed address.
11
.
His view was that there was enough before him at the time of the
arrest to constitute a reasonable suspicion of the plaintiffs
involvement in the offence and that his arrest and detention was
justified. In addition his stance was that when the plaintiff
offered
to assist by providing an affidavit relating to the involvement of
others in the offence, he took the view that charges
could be
withdrawn which then led to the decision by the Senior Prosecutor to
withdraw the charges.
12
.
In cross-examination he maintained that based on the information he
obtained in the interview with Palala and BK as well as what
the
informer had told him, he was of the view that the plaintiff was
involved in the robbery. In addition he followed up the suggestion
by
the plaintiff that there was another person with the same name and
nickname as him but he was unable to find the existence of
such a
person.
13. During his
evidence, the plaintiff steadfastly maintained his non-involvement in
the matter but did allude to his knowledge
of the robbery which he
said he obtained while he was in the Boksburg prison where a prisoner
by the name of TK had told him and
others of the robbery. He denied
telling Officer van der Werken that the name of the other person was
Sipho Ndlovu but said he
told him it was Sipho with another surname
which he could no longer recall. In this regard the evidence of
Officer van der Werken
that the plaintiff had told him of another
person with the name Sipho Ndlovu (known as ‘Small’) was
never challenged.
14. This is very
relevant to both the reasonableness of the belief Officer van der
Werken had at the time of the arrest as well
as what was thereafter
expected of him by way of follow-up. If he had the name of a person
other than Sipho Ndlovu then it would
have been expected of him to
follow this up. However what he followed up was precisely what the
plaintiff had told him, namely
that there was another Sipho Ndlovu
and his enquiries came to nothing, suggesting that there was only one
Sipho Ndlovu (known as
‘Small’).
15. The plaintiff,
in response to questions by the Court, also said that he always wore
spectacles and indeed it was put to Officer
van der Werken that the
photograph of the person who was identified as the plaintiff shows a
person without spectacles, suggesting
an error was made in
identification. However the Court asked the plaintiff about the
information on his driver’s license
which indicated that his
licence was issued without endorsement in respect of spectacles in
August 2009, suggesting he was able
to drive without spectacles. He
was not able to explain the apparent discrepancy.
16
.
Finally it warrants mention that in his evidence the plaintiff stated
that he did not know the other Small and only came to discover
who he
was after his release on the 30
th
of July 2010. However in the affidavit he deposed to on the 30
th
of July 2010 and while he was still in custody, he refers to those
involved in the robbery as follows:
‘
He
told me that he was with Palala (who I don’t know), Bongani
(also known as Jovus), Sipho (known as Mancane) (Small).’’
17. The manner in
which he identifies Sipho clearly suggests that it is someone he
knows as opposed to Palala who he expressly states
he does not know.
It must then raise the question that if he did not know Sipho when he
deposed to the affidavit he should have
indicated that as he did in
the case of Palala. This in my view must also raise concerns about
this other Sipho and is linked to
the evidence of Officer van der
Werken on this aspect.
18
.
The evidence of the other witnesses all related to the workings of
the prosecutorial system at the Alexandra Magistrate’s
Court.
19
.Ms
Reddy, who was the control prosecutor on the occasion of the first
appearance of the plaintiff on the 24 of May 2010, said she
perused
the docket and after considering the arrest statement and warning
statement she was satisfied about the involvement of
the plaintiff in
the robbery.
20
.
She could not recall if Officer van der Werken had told her that the
plaintiff had denied any involvement in the robbery but that
even if
he had told her she probably would have left it to him to take the
matter further by way of investigation.
2
1.
Mr Bakana was the prosecutor in Court when the matter served on the
15
th
of July 2010 and then again on the 30
th
of July 2010. His view at that stage was that the case was not strong
enough to proceed to trial but that there was enough to oppose
bail.
It was after discussing the matter with Officer van der Werken that
they decided to approach the Senior Prosecutor to have
the charges
withdrawn on the basis of the plaintiffs offer to co-operate.
22
.
His evidence was that by the 30 of July 2010 there was insufficient
evidence on which to proceed with the prosecution but that
the same
could not be said about the state of the matter as at the 24
th
of May 2010. His general view was that at some stage before the 30
th
of July 2010 it should have become evident that there was not a
strong enough case to prosecute. He was unable to say however when
this would have occurred.
23
.
His view was also that the prosecutors who dealt with the matter from
time to time should have given written instructions in the
investigation diary for an identity parade to be held. It is common
cause that no such written instructions were given and that
no
identity parade was held in the period May 2010 to July 2010
.
24. Mr Choudree was
the senior prosecutor at Alexandra Magistrates Court on the 30
th
of
July 2010 when the charges against the plaintiff were
withdrawn. His evidence was that at that stage there was no evidence
of a
direct link between the plaintiff and the robbery. The affidavit
of the plaintiff in his view demonstrated insight into what had
occurred and he was of the view that the plaintiff was indeed
involved in the robbery. The decision to withdraw charges in his
view
meant that the matter would take a different direction with the
plaintiff now in a position to assist with the investigation.
25. Ms Jacqueline
Letsoalo was the prosecutor in Court on the 24
th
May of
2010 when the matter was postponed for a bail application and again
on the 16
th
and the 23
rd
of July 2010. Her
evidence was that she read the docket on both occasions and was in
agreement with the stance of Officer van der
Werken to oppose bail.
She recalls discussing with him the need to hold an identity parade
but concedes that this was not recorded
in the investigation diary
and that when the matter came before her again on the 16
th
of July 2010 she did not check whether such a parade was held,
although she accepts with the benefit of hindsight that it was not
held.
WAS
THE ARREST AND DETENTION FROM THE 20
th
MAY 2010 TO THE
24
th
MAY 2010 UNLAWFUL ?
26
.
It is trite that an arrest and detention, to the extent that it
deprives the individual of liberty and freedom, is
prima
facie
wrongful
and it remains for the arrestor to justify the lawfulness of the
arrest and detention.
(See
LOMBO v AFRICAN NATIONAL CONGRESS
2002
(5) SA 668
(SCA)
at
paragraph 32 and
MINISTER OF LAW AND ORDER AND
OTHERS v HURLEY AND ANOTHER
1986
(3) SA 568
(A) at
587
to 589 E-F.)
27.
It is common cause that the plaintiff was arrested without a warrant.
In
DUNCAN v MINISTER OF LAW AND ORDER
1986 (2) SA 805
(AD)
at
818G-H VAN HEERDEN JA held that in order to enjoy protection in terms
of section 40(1 )(b) of the
Criminal Procedure Act 51 of 1977
, the
arrestor must establish the four requirements:
1. The arrestor
must be a peace officer.
2.
He must entertain a suspicion.
3.
It
must be a suspicion that the arrestee has committed an offence
referred to in Schedule 1 of the Act (other than one particular
offence).
4. That suspicion
must rest on reasonable grounds.
28
.
It is hardly is dispute in these proceedings that insofar as it
relates to the arrest and detention for the period 20
th
to the 24
th
May 2010, the core issue in dispute is whether the suspicion that
Warrant Officer van der Werken held regarding the involvement
of the
plaintiff in the robbery was one that rested on reasonable grounds.
This requirement must be satisfied on an objective basis
(see
DUNCAN
supra
at 814 D-E).
29. On the evidence
before this Court, the arresting officer had information from two
different sources that the person who appeared
in the video footage
and who was involved in the robbery was Sipho Ndlovu, and he was also
known as ‘Small’. By enquiring
from the informer Officer
van der Werken used, indications were that the person in question was
the plaintiff.
30. Upon the
plaintiff being told of the reason for his arrest, the plaintiff
informed Officer van der Werken about his knowledge
of the robbery as
well as the existence of another person with the same name and
nickname as his (Sipho ‘Small’ Ndlovu)
who was involved
in the robbery. While the plaintiffs explanation was meant to be
exculpatory in nature, Officer van der Werken
did not regard it in
such a way and indeed that was understandable. Here he was being
confronted by a person who was implicated
by others as being involved
in the robbery and whose response was that he knew about the robbery
and that there was another person
with an identical name, surname and
nickname as his who was involved.
31. The information
available to Officer van der Werken would, in my view, have been
sufficient to ground, objectively speaking,
a reasonable suspicion of
the involvement of the plaintiff in the robbery. Under those
circumstances I must conclude that the arrest
and detention of the
plaintiff from the 20
th
of May 2010 until the 24
th
of May 2010 was lawful.
WAS
THE DETENTION OF THE PLAINTIFF FROM THE 24
th
OF MAY
2010 OR
ANY TIME THEREAFTER UNTIL HIS RELEASE ON THE 30
th
OF
JULY 2010
UNLAWFUL?
32
In
the case of
MINISTER
OF POLICE AND ANOTHER
v
DU PLESSIS
2014
(1) SACR 217
(SCA)
at
paragraph 28, the Court, discussing the role and obligations of
prosecutors, said (at 225 i to 226a):
‘
Once
an arrestee is brought before a court, in terms of s 50 of the
Criminal Procedure Act 51 of 1977 (CPA), the police’s
authority
to detain, inherent in the power of arrest, is exhausted. In this
regard see
Minister
of Safety and Security v Sekhoto and Another
2011
(1) SACR 315
(SCA) ...para 42. As pointed out by Campbell AJ in the
court below, before the court makes a decision on the continued
detention
of an arrested person comes the decision of the prosecutor
to charge such a person. A prosecutor has a duty not to act
arbitrarily.
A prosecutor must act with objectivity and must protect
the public interest.
’
33
.
Dealing with a prosecutor’s discretion, the Court in
DU
PLESSIS
(supra)
stated the following (at 226g to 227a):
'A prosecutor
exercises discretion on the basis of the information before him or
her. In S v LUBAXA
2001 (2) SACR 703
(SCA)para 19 this court said the
following:
‘
Clearly
a person ought not to be prosecuted in the absence of a minimum of
evidence upon which he might be convicted, merely in
the expectation
that at some stage he might incriminate himself That is recognised by
the common-law principle that there should
be ‘reasonable and
probable cause ’ to believe that the accused is guilty of an
offence before a prosecution is initiated...and
the constitutional
protection afforded to dignity and personal freedom (s 10 and s 12)
seems to reinforce it. It ought to follow
that if a prosecution is
not to be commenced without that minimum of evidence, so too should
it cease when the evidence finally
falls below that threshold.
’
34
.
In
DU PLESSIS,
the
Supreme Court of Appeal opined (at 227b) that:
‘
Courts
are not overly eager to limit or interfere with the legitimate
exercise of prosecutorial authority. However, a prosecuting
authority’s discretion to prosecute is not immune from scrutiny
of a court which can intervene where such a discretion is
improperly
exercised. ’
35
.
There is thus the overall duty of the Court to exercise the necessary
level of scrutiny over the manner in which prosecutorial
authority is
exercised whilst being mindful at the same time of not unduly
limiting the discretion which must necessarily be an
inextricable
part of how such authority is exercised.
36.
When one has regard to the facts
in
casu,
then
on the evidence of the various prosecutors who testified, the various
appearances by the plaintiff during the period in question
related
mainly to the bringing of a bail application. On his first appearance
what was already evident to Ms Reddy who read the
docket including
the arrest statement and warning statement was a link between the
plaintiff and the offence. At that stage it
would also have been
evident from the profile in the docket which was produced on the 20
th
of May 2010 that the plaintiff was on bail in respect of several
other charges including robbery, possession of a firearm and
attempted murder. Under such circumstances it is understandable and
certainly, on the face of it, justifiable why the State elected
to
oppose bail.
37
.
The various appearances after the 24
th
of May 2010 were directed toward disposing of the bail application
and the fact that no formal bail application was heard before
the
30
th
of July 2010 was due in part to a number of factors including the
non-availability of the docket on one occasion and the absence
of the
plaintiffs legal representatives on others.
38. Under such
circumstances the question arises as to whether on considering the
docket, the various prosecutors who dealt with
the matter were remiss
in not concluding that there was a lack of sufficient and probable
cause to justify the further prosecution
of the plaintiff.
39
.
While the benefit of hindsight is always a wonderful source of
learning, one must be mindful to examine and interrogate decisions
in
the context in which they occur and on the basis of the information
then and there available. In the
DU
PLESSIS
case,
the docket consisted of an exculpatory statement by the arrested
person as well as a statement by an independent person in
support of
that from which the Court concluded it would have been clear that the
arrested person was no more than an innocent bystander.
40. The facts in
this matter are considerably different and clearly distinguishable.
What was available to the prosecutors was:
i. The statement by
the arresting officer linking the plaintiff to the crime in question;
ii. A warning
statement by the plaintiff in which he elected to exercise his right
to make a statement at Court;
iii. A profile of
the plaintiff indicating he was on bail in respect of charges of
robbery, attempted murder and unlawful possession
of a firearm; and
iv.
The
SAP69 of the plaintiff showing that he was convicted of robbery on
the 24
th
of November 2001 and he was sentenced to fifteen years’
imprisonment.
41. Without in any
manner suggesting that the profile of the plaintiff as well as his
previous conviction by themselves only would
serve as a basis for his
continued detention, my view is that the link between the plaintiff
and the crime taken together with
such other factors as his profile
and previous conviction, would have justified the postponement of the
matter for a bail hearing.
42
.
Another factor that requires consideration is that despite taking an
exculpatory stance at the time of his arrest, the information
the
plaintiff provided to Officer van der Werken about the existence of
the other Sipho ‘Small’ Ndlovu, the attempts
by Officer
van der Werken to follow up and verify without success the existence
of such other person as well as the plaintiffs
election not to make a
warning statement (which of course was his right) all meant that the
exercise of the prosecutorial discretion
was based on limited
material and on that basis I cannot come to the conclusion that there
was a failure on the part of the various
prosecutors to properly
apply their mind to the matter in justifying the further detention of
the plaintiff from the 24
th
of May 2010 to the 30
th
of July 2010 .
43. Of course by the
30 of July 2010 matters had developed to a stage where the State’s
case did not look strong, with the
plaintiff providing an affidavit
for the first time with regard to his knowledge of the robbery and
the identity of those involved.
This in its totality represented an
opportunity for a change in stance with regard to the prosecution and
was ultimately what led
to the withdrawal of the charges. While it
may well be that what existed by way of evidence on the 30
th
of July 2010 was fundamentally the same as what existed on the 24
th
of May 2010, it does not necessarily follow that charges should have
been withdrawn on the 24 of May 2010 or at some stage before
the 30
th
of July 2010.
44
.
A
criminal investigation and prosecution is a dynamic process that may
well have various contours in its trajectory as it proceeds
to
finality. Many of those factors may be unanticipated while others may
arise as the result of investigation and further information
becoming
available.
45
.
In casu,
I
am not persuaded that the conduct of the second defendant and its
employees fell short of the standard required. For the reasons
I have
already given, their actions are not wrongful and unlawful and the
conclusion I reach is that the detention of the planitff
from the
24
th
ÍYlf)^2010
until
the 30
th
of July 2010 was not unlawful.
ORDER
46
.
I
make the following order:
The
plaintiffs claim is dismissed with costs.
N
KOLLAPEN
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
30007/2013
HEARD ON: 28, 29
& 30 October 2014
FOR THE PLAINTIFF:
Adv. J H v d B LUBBE
INSTRUCTED BY: NIEL
DIPPENAAR ATTORNEYS (ref: Le Grange 58/13)
FOR THE DEFENDANTS:
Adv. O L R MUDAU
INSTRUCTED BY: THE
STATE ATTORNEY (ref: 3 563/2012/Z47/MC)