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[2015] ZAGPPHC 363
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Setlhapelo v Minister of Police and Another (45031/2012) [2015] ZAGPPHC 363 (20 May 2015)
IN THE REPUBLIC OF
SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
DATE: 20 MAY 2015
Case Number: 45031/2012
In the matter between:
P
SETLHAPELO
.........................................................................................................................
Plaintiff
And
MINISTER OF
POLICE
................................................................................................
First
Defendant
NATIONAL PROSECUTING
AUTHORITY
..........................................................
Second
Defendant
JUDGMENT
Date of hearing:19, 20 and 21 March
2015
Date of judgment: 20 May 2015
A B ROSSOUW A J
(1) The plaintiff proceeded with his
claim against the first defendant (The Minister of Police) only for
payment of damages in the
amount of R500 000.00 based on unlawful
arrest and unlawful detention. (The plaintiff has withdrawn his case
against the second
defendant (The National Prosecuting Authority) and
he has abandoned the remainder of his claims). I shall henceforth
refer to the
first defendant as 'the defendant'.
(2) The defendant admitted that the
arrest was without a warrant and pleaded, in short, that the
plaintiff was arrested for possession
of suspected stolen property
and that the arrest was lawful.
(3) The following facts are common
cause:
(4) The plaintiff was arrested on 5
September 2010 without a warrant of arrest for possession of
suspected stolen property. He was
detained at Brooklyn police station
and subsequently transferred to Pretoria Central Prison where he was
detained until his release.
He appeared in court on 7 September 2010,
ie within 48 hours of his arrest, when the matter was postponed for
further investigation.
The plaintiff was remanded in custody until 14
September 2010 when the charge against him was withdrawn.
(5) The defendant, who had the duty to
begin, called four witnesses, namely Constables Kekana, Molala,
Mahafa and Nkwe.
(6) Constable Kekana's evidence can be
summarised as follows:
(7) In 2010 he was stationed at
Brooklyn Police Station. On 5 September 2010 his was on duty and his
task was Visible Policing,
which entailed patrolling, attending to
complaints and stop and search. On Sunday 5 September 2010 he and
Constable Molala were
patrolling the Brooklyn area. Constable Kekana
spotted a gold VW Polo Playa at the corner of Lunnon street and
Duxbury road. The
manner in which the occupants looked at him made
him suspicious. He then followed the car and stopped the driver. The
plaintiff
was the driver and he had a passenger with him. He
requested the plaintiff to alight from the vehicle whereupon he
requested the
plaintiff's driver's licence. The plaintiff, instead of
producing his own driver's licence, produced the driver's licence of
his
girlfriend, namely Nthabiseng Raseala. Constable Kekana then
proceeded to search the vehicle and found three new books and eight
new Casio scientific calculators in the boot of the vehicle. He asked
the plaintiff about the origin of the goods whereupon the
plaintiff
said that he was the owner of the items and that he had purchased the
items earlier on that day. Constable Kekana noticed
that the price
tags on the items had been removed and requested the pay slips of the
items, which the plaintiff could not produce.
The plaintiff then told
him that the books belonged to his girlfriend, who had a shop in
Vosloosrus. Constable Kekana requested
the plaintiff to give him
Nthabiseng's cellphone number so that he could verify the plaintiff's
explanation. The plaintiff gave
Constable Kekana his girlfriend's
number. Constable Kekana then dialled the number, but the voice
recording on the phone replied
that the number did not exist. He put
the cellphone on loudspeaker so that the plaintiff could hear that
the number did not exist.
The plaintiff then explained that
Nthabiseng's cellphone had been stolen on Friday 3 September 2015.
Constable Kekana then asked
for an alternative number in order to
trace the plaintiff's girlfriend, but this could not be produced. He
further testified that
the price tags on the items had been removed
in view of which he could not establish from which shop the items had
been purchased.
They then proceeded to Brooklyn police station to
interview the plaintiff. When they interviewed the plaintiff at the
police station,
the plaintiff's companion remained seated in the car.
When they finished interviewing the plaintiff, they wanted to
interview the
passenger, but when they got to the car, the passenger
was not there. The plaintiff was detained in the cells at Brooklyn
police
station for being in possession of suspected stolen property.
The items found in the boot of the car were booked in at the police
station. Constable Kekana placed a value of R2000 on the items. He
further testified that the plaintiff's contradiction was the
basis of
his suspicion. He never suspected the passenger because on the
plaintiff's version the passenger was not involved. His
explanation
for not questioning the passenger at the scene was because he did not
want to question the passenger in public and
he thought the
passenger, if being consulted alone, would give him something to go
on. When Constable Kekana knocked off at 18:00
the vehicle was still
parked at the police station. No phone call to Nthabiseng was made in
his presence. No alternative number
was given to the police - the one
that was given to them did not exist. He arrested the plaintiff at
about 14:00 and at about 16:00
his work in respect of the docket was
complete. Constable Kekana made a statement in which he did not
mention anything about the
plaintiff changing his versions. When
cross-examined about this he testified that what he put in the
statement was, according to
him, enough.
(8) Constable Kekana's evidence was
corroborated by Constable Molala in all material respects. He
testified that when they asked
the plaintiff where he had bought the
items, the plaintiff told them at the CNA and when they asked him for
the slips he could
not produce it. The plaintiff then changed his
version by telling them that the items belonged to his girlfriend,
Nthabiseng. He
also testified that the number given to them by the
plaintiff did not exist and that they subsequently went to the
Brooklyn police
station. About a month after the plaintiff's arrest
Constable Molala made a statement at the request of the investigating
officer.
His statement is virtually a copy of the statement of
Constable Kekana. When cross-examined about this he testified that he
used
Constable Kekana's statement to refresh his memory and that he
primarily used it to refresh his memory regarding the date and time
of the incident.
(9) Constable Mahafa and Constable Nkwe
also testified. Contabel Mahafa, who was responsible for charging the
plaintiff, testified
that the plaintiff decided not to give a written
statement because he preferred to tell his story in court. Contable
Nkwe was the
investigating officer. He testified that because of his
workload and the fact that the docket was not under his direct
control
and supervision all the time, it was impossible to verify the
plaintiff's physical address in the limited time available. He also
testified that it was not his responsibility to arrange for police
bail. Both constables testified that it was not within their
powers
to grant police bail.
(10) The plaintiff testified in his own
case and he did not call any witnesses. His evidence can be
summarised thus:
(11) On 5 September 2010 whilst driving
in the Brooklyn area he was stopped by two policemen. He was alone in
the vehicle. and he
was driving without a licence. They searched his
person and the vehicle, but they never asked him for his licence.
During cross-examination
he conceded that they may have asked him for
his licence. He further testified that Nthabiseng's driver's licence
was attached
to the keys of the car and he said that he would not
have produced his girlfriend's licence to the policemen. He was asked
to open
the bonnet of the car. After the policemen had satisfied
themselves that the car was not stolen, they asked him to open the
boot
of the vehicle. There they found the books and the calculators
and he was requested to accompany the policemen to the Brooklyn
police station. No phone call was made to Nthabiseng at the scene
where they stopped him. When they arrived at the police station
the
goods were removed from the vehicle and they entered the police
station. Once inside he was again questioned about the origin
of the
items. He explained to the policemen that the items were donated by
Exclusive Books and CNA to Nthabiseng in her capacity
as youth leader
of the church to which she belonged. He then phoned Nthabiseng, using
the phone at the police station, and he explained
to her that he was
under arrest because the books and the calculators were found in his
possession and he requested her to come
and fetch the vehicle at the
police station. Thereafter, according to the plaintiff, Nthabiseng
went to the police station, collected
the vehicle's keys at the front
desk of the police station and drove the vehicle back home. During
cross-examination he was asked
why his girlfriend did not bring the
necessary evidence regarding the origin of the items found in the
plaintiff's possession to
the police station, upon which he replied
that he was hoping that she would do it and that the policemen ought
to have asked her
about it. He could not remember whether Nthabiseng
made a statement. His explanation as to why Nthabiseng, now his wife,
was not
called as a witness, was that she was traumatised by his
arrest which caused her to lose their three month old baby and that
she
did not want to 'scratch the wounds' again. He also testified
about the circumstances under which he was arrested and detained.
(12) It is common cause that Nthabiseng
did make a statement on 7 September 2010, ie two days after the
plaintiff's arrest, in which
she merely confirmed her address and
that the plaintiff was residing with her.
(13) Mindful of the informative
guidelines and principles set out in Stellenbosch Farmers' Winery
Group Ltd and another v Martell
Et Cie and others
2003 (1) SA 11
(SCA) par 5 and mindful that the evidence must be weighed in its
totality, the following:
(14) Although Constable Kekana was
argumentative from time to time, he did not strike me as untruthful
or unreliable. I say so because
of the probability of his version,
the reasonableness of his conduct, the consistency of his evidence,
the absence of any contradictions
with his extra-curial statement or
with the common cause facts, the little interest he has in the
outcome of this litigation, the
manner in which he emerged from the
test of his memory and the absence of any internal factual
contradictions in his evidence.
I can say the same about Constable
Molala. Although Constable Molala was criticised during
cross-examination for copying Constable
Kekana's statement when
making his own, he impressed me as a person who had an independent
recollection of the events.
(15) Regarding the plaintiff's
evidence, the following: He denied ever being asked for his driver's
licence and he denied that he
produced his girlfriend's driver's
licence to the police. This part of his evidence must be rejected,
because Constable Kekana
not only knew the full names of the
plaintiff's girlfriend but he also knew that the plaintiff had his
girlfriend's driver's licence
in his possession and he could only
have known this if the plaintiff had given it to him. Furthermore, on
the plaintiff's own version
he spoke to Nthabiseng shortly after they
had arrived at the police station. If he was telling the truth, I
would have expected
him to ask Nthabiseng to bring all the necessary
proof regarding the origin of the books and the calculators to the
police station
as a matter of utmost importance and urgency so that
he could be released. On his own version he did not ask her to do so,
nor
did he ask her to make a statement nor did he ask her to discuss
the matter with the police nor did he ask her to assist him in
any
other way. What is even more unconvincing about his version is that,
according to him, Nthabiseng arrived at the police station
on the day
of his arrest and collected the keys without visiting the plaintiff
or enquiring about the basis of her boyfriend's
arrest and without
offering any form of assistance. The plaintiff's evidence in this
regard is obviously hearsay. No direct evidence
was led as to who
actually fetched the vehicle at the police station. If the plaintiff
was telling the truth, I would have expected
Nthabiseng to have
visited the plaintiff and to have made her written statement
regarding the plaintiff's physical address on that
very same day and
not two days later.
(16) Regarding the reason as to why
Nthabiseng did not testify, the following: On the plaintiff's own
version she was not medically
unfit to testify, but merely unwilling
to do so for the reasons given by him. The plaintiff, who was legally
represented, and Nthabiseng
must have appreciated the importance of
her testimony and her failure to give evidence, in my view, justifies
an inference that
she was not in a position to corroborate the
plaintiff's version. In the light of all these considerations I
reject the plaintiff's
version insofar as it contradicts Constables
Kekana and Molala's versions.
(17) In terms of s 40(1)(e) of the
Criminal Procedure Act 51 of 1977 ('the CPA') a peace officer may
without a warrant arrest any
person who is found in possession of
anything which the peace officer reasonably suspects to be stolen
property or property dishonestly
obtained, and whom the peace officer
reasonably suspects of having committed an offence with respect to
such thing.
(18) I could not find any reported
judgment that deals with s 40(1)(e) of the CPA. It appears as if s
40(1(e) applies to those crimes
created by ss 36 and 37 of the
General Law Amendment Act 62 of 1955.
(19) Section 36 of the General Law
Amendment Act 62 of 1955 stipulates that any person who is found in
possession of any goods,
other than stock or produce as defined in s1
of the Stock Theft Act 57 of 1959, in regard to which there is a
reasonable suspicion
that they have been stolen and is unable to give
a satisfactory account of such possession, shall be guilty of an
offence and liable
on conviction to the penalties which may be
imposed on a conviction of theft.
(20) It is trite that the onus to
justify an arrest without a warrant is on the defendant, which means
that the defendant must convince
the court on a balance of
probabilities that all jurisdictional facts existed for a lawful
arrest.
(21) The jurisdictional facts for an
arrest in terms of s 40(1)(e) of the CPA are the following: 1) the
arrestor must be a peace
officer, 2) the suspect must be found in
possession of the property, 3) the arrestor must entertain a
suspicion that the property
has been stolen or illegally obtained, 4)
the arrestor must entertain a suspicion that the person found in
possession of the property
has committed an offence in respect of the
property and 5) the arrestor's suspicion must rest on reasonable
grounds.
(22) If regard is had to s 36 of the
General Law Amendment Act 62 of 1955, I am of the view that a
suspicion originally based on
insufficient grounds that the property
has been stolen or illegally obtained or that a suspect has committed
an offence in regard
to property which is suspected of having been
stolen or dishonestly acquired can become a reasonable suspicion as a
result of something
which the suspect says or does at the time when
he is found in possession of the goods, such as giving an
unacceptable explanation
for his possession of such property.
(23) The plaintiff was found in
possession of the property. The number and nature of the items found
in the boot and the fact that
the price tags had been removed were
perhaps insufficient grounds to suspect that the property had been
stolen, but when the plaintiff
was asked for an explanation and he
gave one explanation, changed his version and then gave another which
could not be verified,
the suspicion that the property had been
stolen and that the plaintiff had committed an offence in regard
thereto, in my view,
became objectively reasonable.
(24) In the result I find that the
defendant has proved all the jurisdictional facts for a lawful
arrest.
(25) The plaintiff further argued that
the arrestor's discretion to arrest was improperly exercised.
(26) Jurisdictional facts should not be
conflated with the exercise of a discretion. Where all the
jurisdictional facts are present,
the party who attacks the
reasonableness of the exercise of a discretion bears the onus of
proof. (Sekhoto supra para 49).
(27) What follows is a brief exposition
of the legal position in this regard as explained in Minister of
Safety and Security v Sekhoto
2011 (5) SA 367
(SCA) at 373B-387A:
Once the required jurisdictional facts for an arrest are present, a
discretion whether or not to arrest arises.
The discretion must be
exercised in good faith, rationally and not arbitrarily. The object
of the arrest must be to bring the suspect
before the court. Peace
officers are entitled to exercise their discretion within the limits
of the authorising statute, read in
the light of the Bill of Rights,
as they see fit so long as their discretion is exercised within the
range of rationality. The
standard is not breached because an officer
exercises the discretion in a manner other than that deemed optimal
by the court. There
must be a rational connection between the
decision to arrest and the purpose for which the power was given and
the question whether
a decision is rationally related to the purpose
for which the power was given calls for an objective enquiry. The
arrest is only
the first step in the process. Once an arrest has been
affected, the peace officer must bring the arrestee before court as
soon
as reasonably possible, and at least within 48 hours, depending
on court hours. Once that has been done, the authority to detain
that
is inherent in the power to arrest is exhausted. The authority to
release or detain the suspect further is then within the
discretion
of the court or in some cases a senior police officer. The enquiry to
be made by the peace officer is only whether the
case is one in which
the decision to release or detain the suspect further ought properly
to be made by a court or by a senior
police officer as the case may
be. Whether his decision on that question is rational depends upon
the particular facts.
(28) I find that Constable Kekana's
decision to arrest the plaintiff was objectively rational in the
sense that his response was
not beyond the range of responses open to
a reasonable decision-maker and that his decision is rationally
related to the purpose
for which the power to arrest was given.
(29) In the premises I find that
plaintiff has failed to prove on a balance of probabilities that
Constable Kekana exercised his
discretion to arrest in an improper or
unlawful manner.
(30) The plaintiff further argued that
even if the arrest was lawful, the plaintiff's detention at some
point in time became unlawful
because police bail should have been
granted to the plaintiff in terms of s 59(1)(a) of the CPA.
(31) A lawful arrest does not
necessarily render the full period of the subsequent detention
lawful. (See Mvu v Minister of Safety
and Security
2009 (6) SA 82
(SGHC) paras 9 and 10A-B).
(32) Section 59(1)(a) of the CPA
stipulates that an accused who is in custody in respect of any
offence, other than an offence referred
to in Part II or Part III of
Schedule 2 may, before his or her first appearance in a lower court,
be released on bail in respect
of such offence by any police official
of or above the rank of non-commissioned officer, in consultation
with the police official
charged with the investigation, if the
accused deposits at the police station the sum of money determined by
such police official.
Section 59(2) of the CPA affords such police
bail the same effect as ordinary bail.
(33) Since the offence in respect of
which the plaintiff was arrested does not fall within the ambit of
Part II or Part III of Schedule
2 of the CPA, the plaintiff qualified
to be considered for police bail.
(34) Section 35(1)(f) of the
Constitution reads as follows:
'Everyone who is arrested for allegedly
committing an offence has the right - (f) to be released from
detention if the interests
of justice permit, subject to reasonable
conditions.'
(35) Section 35(1)(f) provides the
principal template against which Chapter 9 of the CPA should be
measured. (S v Dlamini
[1999] ZACC 8
;
1999 (4) SA 623
(CC) para 5). Chapter 9
(sections 58-71) of the CPA is the chapter that deals with bail.
Section 59(1)(a) of the CPA is prefatory
and incidental to bail under
s 60 of the CPA (S v Dlamini 641 footnote 19) and should be
interpreted in the light of s 35(1)(f)
of the Constitution.
(36) Section 59(1)(a) of the CPA is
silent as to the procedure that should be followed in respect of
police bail.
(37) In S v Dlamini para 7 Kriegler J
writing for the Constitutional Court said that Chapter 9 of the CPA
is an invaluable point
of reference in any general enquiry into the
law of bail and a primary source to be consulted in looking for an
answer to any specific
bail question and that it provides a
comprehensive framework in which answers can be judged.
(38) Section 60(1)(c) of the CPA
stipulates that if the question of the possible release of the
accused on bail is not raised by
the accused or the prosecutor, the
court shall entertain from the accused whether he or she wishes that
question to be considered
by the court. In the light hereof, and
guided by the provisions of s 60(1)(c) of the CPA, I am of the view
that once the jurisdictional
facts for the consideration of police
bail in terms of s 59(1)(a) of the CPA are present, the police has a
constitutional duty
to ascertain as soon as reasonably possible after
the arrest whether the arrestee wishes bail to be considered. If the
arrestee
wishes to apply for police bail, the senior police official,
in consultation with the investigating police official, must consider
bail as a matter of urgency. A failure to inform the arrestee of his
constitutional right to apply for bail or a failure to consider
bail
or any unreasonable delay in the process could, depending on the
circumstances of the case, render the arrestee's further
detention
until his first appearance in court unlawful.
(39) Furthermore, an arrestee's right
to a prompt decision is a procedural right independent of whether the
right to liberty actually
entitles the arrestee to bail. (Magistrate
Stutterheim v Mashiya
2004 (5) SA 209
(A) par 16).
(40) Section 60(4)-(9) of the CPA
provides guidelines as to what are factors for, and what are factors
against, the grant of bail.
Whether and to what extent any one or
more of such factors are found to exist and what weight each should
be afforded is left to
the good judgment of the presiding judicial
officer. (S v Dlamini par 43). In seeking to establish the presence
of such factors
the judicial officer should act as pro-actively and
inquisitorially as may be necessary. (S v Dlamini par 101). I am of
the view
that these guidelines and procedure to the extent that they
are relevant and applicable to the particular situation should also
be followed by the police official considering bail in terms of s
59(1)(a) of the CPA.
(41) The exercise of a discretion to
grant or refuse bail must also be objectively rational and the same
considerations as set out
above in respect of the exercise of a
discretion to arrest are mutatis mutandis applicable.
(42) If a plaintiff wishes to rely on
the provisions of s 35(1)(f) of the Constitution read together with
s 59(1)(a) of the CPA,
the plaintiff's particulars of claim must
contain sufficient factual allegations substantiating such a cause of
action. The plaintiff
must allege and prove that he was arrested for
an offence not listed Part II or Part III of Schedule 2 of the CPA
which entitled
him to apply for police bail in terms of s 59(1)(a) of
the CPA, that the defendant failed to inform the plaintiff of his
right
to apply for police bail or that the plaintiff failed to
consider bail or that there was a delay in respect of his procedural
right
to be informed of his right to apply for police bail or to a
prompt decision which was so unreasonable that it rendered his
further
detention unlawful or that, if bail was refused, the factual
basis upon which the plaintiff relies for his conclusion that the
refusal was objectively irrational. Although I could not find any
direct authority in this regard, I can think of no considerations
of
practice, policy or fairness why the onus in respect of these
allegation should not be on the plaintiff.
(43) Because the plaintiff failed to
properly raise unlawful detention in the context of s 59(1)(a) of the
CPA in his pleadings,
it was never an issue between the parties. If
the plaintiff intended to raise it, he should have done so as set out
above. The
issue was also not properly ventilated during the trial.
Furthermore, there was no evidence placed before me that the
plaintiff
applied for police bail or that he was not informed of his
rights in this regard.
(44) In the result I make the following
order:
1. The plaintiff's claim is dismissed
with costs, including all reserved costs.
A B ROSSOUW A J
DATE: 2013-05-15
DATE OF HEARING:19, 20 AND 21 MARCH
2015
DATE OF JUDGMENT: 20 MAY 2015
FOR THE PLAINTIFF
ATTORNEY: R PHEEHA
ATTORNEYS: RAMOSHIMA PHEEHA
ATTORNEYS
FOR THE DEFENDANT
ADVOCATE: K RAMAIMELA
ATTORNEYS: THE STATE ATTORNEY