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[2015] ZAGPPHC 1050
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Setlhapelo v Minister of Police and Another (45031/2012) [2015] ZAGPPHC 1050 (20 May 2015)
IN
THE REPUBLIC OF SOUTH AFRICA
GAUTENG
D
I
VISION,
PRETORIA
Date
of hearing:19, 20 and 21 March 2015
Date
of judgment: 20 May 2015
Case
Number: 45031/2012
Not
reportable
Of
interest to other judges
In
the matter between:
P
SETLHAPELO
Plaintiff
and
MINISTER
OF
POLICE
First
Defendant
NATIONAL
PROSECUTING
AUTHORITY
Second
Defendant
JUDGMENT
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plaintiff has withdrawn his case against the second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him was withdrawn.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'
lMnery
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 Ill 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 Ill 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 in 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 prov ides 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 plaintiffs
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
Ill 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
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