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[2015] ZAKZDHC 10
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Du Randt v Minister of Safety and Security (380/2013) [2015] ZAKZDHC 10 (18 February 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
LOCAL DIVISION, DURBAN
Case
no: 380/2013
In
the matter between:
LLEWELYN
DU
RANDT
.......................................................................................
PLAINTIFF
and
MINISTER
OF SAFETY AND
SECURITY
...................................................
DEFENDANT
Judgment
Date:
18 February 2015
PLOOS
VAN AMSTEL J
[1]
The plaintiff in this matter sued for damages arising out of his
arrest, detention and subsequent prosecution on a charge of
possessing ammunition without the required permit
[1]
.
It was common cause before me that on 12 November 2011 he was
arrested at his home by a member of the South African Police Service,
who acted within the course and scope of his employment. The
lawfulness of the arrest was not contested in argument at the
conclusion
of the trial, but it was in relation to the detention and
prosecution.
[2]
The background was briefly as follows. On Saturday 12 November, in
the evening, Sergeant Martin and a colleague were in uniform
and
patrolling the Amanzimtoti area on crime prevention duties. They
received a report from the police station concerning an incident
at
63 Fynn Road involving trespass and pointing a firearm When
they got there two of the residents told Martin that a man
had been
seen on the premises and when they tried to investigate what he was
doing he pointed a firearm at one of them. They said
they knew the
person as he had previously resided on the premises, and identified
him as Llewelyn du Randt (the plaintiff). Martin
and his colleague
searched the premises but found nothing untoward. They then patrolled
the area to see if they could find him.
While doing so, they received
a report from the police station that Du Randt had returned to the
premises. They rushed back but
could not find him. The owner of the
property, who was the plaintiff’s former wife, gave them his
address in Warner Beach
and they proceeded there. The plaintiff was
not there, but arrived in his bakkie as they were in the process of
leaving. Martin
testified that he noticed a firearm on the
plaintiff’s hip. He told him to put his hands behind his head,
whereupon he removed
the firearm from its holster. It had a bullet in
the chamber and was cocked. It also had bullets in the magazine.
Martin found
a second magazine on the plaintiff, which had seven
bullets in it. He said he informed him of the charges of trespass and
pointing
a firearm and arrested him.
[3]
At the police station Martin found two firearm licences in the
plaintiff’s wallet. One pertained to the firearm which
he had
taken from the plaintiff’s holster. He asked him where the
second firearm was, and was told that it was in a safe
at the home of
his former wife. Martin returned to 63 Fynn Road, where he found the
second firearm in the safe, together with 22
rounds of ammunition for
a .303 rifle. He returned to the police station, where he asked the
plaintiff if he had a licence or permit
for the ammunition. He said
the plaintiff refused to answer. He then added a charge of unlawful
possession of ammunition to the
charges of trespass and pointing a
firearm.
[4]
The plaintiff’s version of the arrest and what happened at the
police station was different. He said when Martin arrested
him at his
home he asked what he was being arrested for, but Martin refused to
tell him. He confirmed that at the police station
he told Martin
about the second firearm in the safe, and that Martin went to fetch
it. He said when Martin asked him about the
ammunition which he had
found in the safe he told him that he had a permit for it, but Martin
told him to ‘shut up’
and that he was not interested in
his ‘shit.’ He said Martin did not ask where the permit
was, nor did he ask to see
it. The plaintiff confirmed that he was
given a document which set out his rights and listed the three
charges on which he was
being detained. He confirmed that he read the
document and signed it. He also confirmed that when he was given an
opportunity to
make a statement he elected to say nothing. He
remained in detention in the police cells until the Monday, when he
appeared in
the magistrates’ court and was remanded in custody
for further investigation. He was then transferred to the Westville
Prison.
He was released on bail on 28 November.
[5]
The plaintiff’s trial proceeded only on the charge of
possession of ammunition. According to the investigating officer,
Constable Shezi, the charges of trespass and pointing a firearm were
withdrawn as the complainant had moved to Johannesburg and
was not
willing to travel to Durban to testify. The plaintiff was acquitted
at the end of the case for the State. The judgment
was not put before
me and it is not clear on what basis he was discharged.
[6]
The basis on which the plaintiff contends that his detention was
unlawful was as follows. Although he accepts that the arrest
was
lawful in terms of section 40(1) (b) of the Criminal Procedure Act
[2]
, he contends that Martin failed to inform him of the cause of the
arrest until hours later, that this was contrary to the provisions
of
section 39(2) and that consequently his detention pursuant to the
arrest was unlawful
[3]
. He
also contends that Martin should have satisfied himself that the
identification of the plaintiff as the intruder was
reliable and that
unless he was so satisfied he should not have continued to detain
him
[4]
.
[7]
With regard to the claim for malicious prosecution the plaintiff
contends that Martin set the law in motion against him in spite
of
having been told that he had a permit for the ammunition, and that in
those circumstances he could not have had an honest belief
that the
prosecution had reasonable prospects of success. It was also
contended that the search which resulted in the finding of
the
ammunition was unlawful and that Martin knew that this evidence would
be inadmissible.
[8]
The plaintiff testified that he was the holder of a permit to possess
and store the ammunition at the time when it was found
in the safe.
He produced the permit, on form SAPS 539, which was issued at the
Amanzimtoti police station on 28 September 2010.
The period of its
validity is recorded as 28 September 2010 to 27 September 2012.
Constable Shezi testified that when the plaintiff
produced the permit
at the magistrates’ court he was instructed by the prosecutor
to confirm with the designated firearm
officer who had issued the
permit that it was in order. He obtained a copy of the permit from
Warrant Officer Mkhwanazi, who had
issued it. The copy reflected the
period of the permit as one year, not two, and it expired on 27
September 2011. If this was the
correct permit then it had expired
some six weeks before the plaintiff was arrested.
[9]
W/O Mkhwanazi testified that he has been the designated firearm
officer at the Amanzimtoti police station since 2006, and is
still in
that position. He said he is the only person there who issues these
permits. He said he was taught when he did a course
before his
appointment that a permit such as this may not be issued for a period
of more than one year. He has issued hundreds
of permits, and has
never issued one for more than one year. He explained that the form
for the permit, which consists of two pages,
is available to the
public at the police station and can also be downloaded from the SAPS
website. An applicant would typically
arrive at the police station
with the form already filled in, together with the supporting
documents such as his identity document,
a copy of the firearm
licence and a letter of authority from the licence holder.
[10]
A comparison of the second page of each of the two permits shows that
they are identical. It is the page which contains the
date of issue
and the signature of the police officer who issued it, in this case
W/O Mkhwanazi. None of this was in issue before
me. The first pages
of the two permits are however different. The handwriting is
different and, as I have said, the validity of
one permit is one year
and that of the other two years. I was impressed with the evidence of
W/O Mkhwanazi. It was logical and
independent evidence. When he was
approached by Cst Shezi in connection with the permit he produced the
copy from his file. It
was the one year permit which had expired on
27 September 2011.
[11]
I find it odd that if the plaintiff had a valid permit he did not
insist on showing it to Sgt Martin. Martin said he asked
him if he
had a permit and he refused to answer. The plaintiff denies this. He
said he told Martin that he had a permit, but Martin
was not
interested. I find this inherently improbable. Martin wanted to see
the licences for the firearms, and even went to fetch
the second
firearm in the safe. He said there was no permit in the safe, and the
plaintiff admitted that he did not tell Martin
that it was in the
safe. He said he was worried the permit would disappear. I think it
highly unlikely that if Martin had been
told that the plaintiff had a
permit, he would not have wanted to see it. It is also of
significance that when the plaintiff was
given the opportunity to
give an explanation in what is known as a warning statement, he
elected to say nothing. I do not accept
the plaintiff’s version
of the events where it differs from that of Sgt Martin. It is
inherently improbable.
[12]
The probabilities are that the plaintiff forged the permit by
removing the first page, which reflected an expiry date of 27
September 2011, and replacing it with a first page which he had
completed with the same details, except for the expiry date, which
he
reflected as 27 September 2012.
[13]
I also do not accept the plaintiff’s evidence as to the
circumstances of his arrest. Martin said he told him that he
was
arresting him on a charge of trespass and pointing a firearm and that
the complainant was at the police station, laying the
charges. It is
unlikely in my view that Martin would have refused to tell the
plaintiff the reason for his arrest when he pertinently
asked him
what it was. Martin’s evidence was not perfect, but it must be
borne in mind that he was testifying about events
which occurred more
than three years ago. His version is in my view supported by the
probabilities, while the plaintiff’s
version suffers from the
inherent improbabilities to which I have referred. The further basis
on which it is contended that the
detention was unlawful was that
Martin should have made some enquiries to satisfy himself that the
identification of the plaintiff
was reliable. There is no substance
in this point. While it is correct to say that the police are obliged
to release a person when
it becomes clear that there is no case
against him,
[5]
I
do not consider that there was a duty on Martin in the circumstances
of this case to investigate the matter any further. The plaintiff
had
been identified by two people who knew him as they had previously all
resided on the same premises. It cannot be said that
further
enquiries by Martin would have led to the plaintiff’s release,
as was the case in
Du
Plessis
.
I conclude therefore that the plaintiff’s detention was lawful.
I should add that when the plaintiff appeared in court and
was
remanded in custody, his continued detention was a matter for the
discretion of the court. Once he was brought before the court
the
authority of the police to detain him, which was inherent in the
power to arrest him, was exhausted.
[6]
[14]
In order to succeed with the claim for wrongful prosecution, or
malicious prosecution as it is known, the plaintiff had to
prove that
Sgt Martin instituted the proceedings without reasonable and probable
cause. This means an honest belief founded on
reasonable grounds that
the institution of the proceedings is justified. It is not disputed
that the plaintiff had custody and
control of ammunition for which he
required a permit. On Martin’s evidence, which I accept, there
was no permit in the safe
and when he asked the plaintiff if he had
one he refused to answer. In those circumstances Martin was perfectly
entitled to charge
the plaintiff with the unlawful possession of
ammunition. It was also contended that the search of the safe was
unlawful and that
Martin knew the evidence relating to the ammunition
would be inadmissible. I am not persuaded that the search was
unlawful. Mrs
Du Randt consented to the search of the safe which was
in her home, as contemplated in section 22 (a) of the CPA. Counsel
submitted
that this is not enough, as the purpose of the search had
to be the seizing of any article referred to in section 20. That
section
refers, inter alia, to an article which may afford evidence
of the commission or suspected commission of an offence. I think the
probabilities indicate that Martin wanted to satisfy himself that the
plaintiff did not possess any firearm without being in possession
of
a licence for it. As it turned out he was right. The ammunition which
he found afforded evidence of the commission of an offence,
as
contemplated in section 20 (b). In any event, if the search was
unlawful the result would be to render the evidence inadmissible.
There is no basis for a finding that Martin knew the evidence would
be inadmissible and therefore did not have an honest belief
that the
prosecution had reasonable prospects of success. If he did think
about it, he would have been entitled to leave that for
the
discretion of the prosecutor. The claim for malicious prosecution can
therefore not succeed.
[15]
I have found, on a balance of probabilities, which is the test in a
civil case, that the plaintiff forged the permit by replacing
its
first page with a document which reflected substantially the same
information, but an extended expiry date. I intend to refer
these
papers to the Deputy-Director of Public Prosecutions so that she can
consider whether criminal charges should be brought
against the
plaintiff, and to the Registrar of Firearms, so that she can consider
whether the plaintiff should be declared unfit
to possess a firearm.
[16]
The order which I make is as follows:
(i) The defendant is
absolved from the instance with costs.
(ii) I direct that a
copy of this judgment, together with the documentary exhibits, be
forwarded by the Registrar to the Deputy-Director
of Public
Prosecutions, so as to enable her to consider whether criminal
charges should be brought against the plaintiff, and to
the Registrar
of Firearms, so that she can consider whether the plaintiff should be
declared unfit to possess a firearm.
____________________
PLOOS
VAN AMSTEL J
Appearances:
For
the Plaintiff:
Adv. E Lingenfelder
Instructed
by:
Weber Attorneys
Durban
For
the Defendant :
Adv. M M Matlamela
Instructed
by:
C W Dorkin State Attorney Natal
Durban
Date
of Hearing :
4, 5
,
6 February 2015
Date
of Judgment :
18 February 2015
[1]
Contravening
section 90
of the
Firearms Control Act 60 of 2000
.
[2]
Act
51 of 1977.
[3]
Ngqumba/Damons
NO/Jooste v Staatspresident
1988 (4) SA 224
(AD) at 266 and further is authority for this
proposition.
[4]
See
in this regard
Minister
of Police and Another v Du Plessis
2014 (1) SACR 217
(SCA) para [17].
[5]
Minister
of Police v Du Plessis
(supra) para [17].
[6]
Minister
of Safety and Security v Sekhoto
2011 (1) SACR 315
(SCA) para [42].