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[2015] ZAECMHC 42
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Mtola v Minister of Police (1110/2013) [2015] ZAECMHC 42 (19 March 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION: MTHATHA)
CASE
NO. 1110/2013
In
the matter between:
PEACE
HASSAN
MTOLA
.....................................................................
PLAINTIFF
AND
THE
MINISTER OF
POLICE
..............................................................
DEFENDANT
JUDGMENT
DAWOOD
J:
1.
The Plaintiff herein sued the Defendant for
damages arising out of his alleged unlawful arrest and detention. The
Defendant admitted
that the Plaintiff was arrested without a warrant
but pleaded that the arrest was lawful.
2.
The Defendant led evidence in support of
his contention that the arrest was lawful.
a)
The Defendant called
Constable
Sinethemba Sigodi
as it’s first
witness. His testimoney was briefly as follows:-
(i)
He was employed as a Constable at the
Community Services Centre at the Mandela Police Station.
(ii)
On the 8
th
of November 2012, Mr Simon Banda laid a charge of robbery against the
Plaintiff alleging that the Plaintiff had come to his room
in the
company of Simon’s ex-girlfriend and threatened him saying that
there was going to be some spilling of blood here
today and the
Plaintiff showed Banda a knife that was on the Plaintiff’s
waist.
(iii)
Banda further alleged that the Plaintiff
had taken all his clothing and other listed items.
(iv)
Banda confirmed that the Plaintiff was
known to him and had lent Banda monies.
(v)
Banda upon being requested furnished him
with the Plaintiff’s telephone number.
(vi)
The Plaintiff was called by him and
requested to come to the charge office which the Plaintiff duly did.
(vii)
He asked the Plaintiff a few questions and
the Plaintiff admitted taking the items and stated that he was not
going to return them
to Banda since he had taken them because Banda
owed him monies and he was not going to return them until he was paid
his monies.
(viii)
It was at that stage that he arrested the
Plaintiff and put him into the cells on a charge of common robbery.
(ix)
He detained the Plaintiff because robbery
is a serious offence that warrants further investigation.
(x)
He opened the case docket and the matter
was to be taken to the detective unit and he was at that stage
unaware of who the detective
of the case was.
(xi)
Under cross examination he confirmed that
the crime was not committed in his presence nor did he see the
Plaintiff in possession
of a knife.
(xii)
The Plaintiff’s version was put to
him as follows:-
aa)
That the Plaintiff went to the
complainant’s home in the company of Phumeza and goods were
taken without any knife being shown
or any threats of violence.
bb)
The Plaintiff upon discovering from Phumeza
that Banda was leaving had gone to Banda’s homestead in the
company of Phumeza
and asked him how he was going to pay his loan if
he was leaving.
cc)
It was at that stage that
the
Plaintiff told Banda, “
let
me keep your goods
and when you
give me my money
I
will give you your goods”
and Banda agreed. (My highlighting).
dd)
It was put to him that the Plaintiff had
told him about this discussion and agreement.
ee)
He denied that the Plaintiff told him about
any agreement.
ff)
He stated that he merely asked the
Plaintiff whether he had Banda’s items and the Plaintiff said
that they were in his possession.
gg)
According to him Mr Banda further had
complained that his goods were taken without his consent and he was
threatened. He further
stated that if the Plaintiff and Banda had
reached an agreement why would Banda come to lay a charge.
hh)
It was put to him that when the Plaintiff
explained to him that there was an agreement his response was that he
does not enter anywhere
on their loan but was concerned about the
goods that have been taken away and that the loan was not written. He
denied saying that
to the Plaintiff.
ii)
He denied that the Plaintiff mentioned the
presence of Phumeza. According to him he only questioned the
Plaintiff about the goods
and the Plaintiff stated that he had taken
the goods and was not going to return it.
jj)
He stated that the Plaintiff was informed
of his constitutional rights prior to the arrest and detention.
kk)
He conceded that he did not consult with
the witnesses mentioned because he was satisfied with regard to all
the elements of the
crime from Mr Banda’s statement and it was
for the investigator to interview witnesses and consider the issue of
the knife
during the course of further investigations.
ll)
This was sufficient for him at that stage
since the Plaintiff himself had also admitted taking the goods and
was refusing to return
it.
mm)
Aside from the knife, he considered the
issue of the threat of spilling of blood and the taking of goods
without the owner’s
consent or agreement as serious issues.
nn)
He stated that the issue of the witness
would be an issue for the court to assess in conducting the trial and
was not necessary
for the purpose of arrest.
oo)
It was put to him that the Plaintiff was
released on the 12
th
of September 2012 without appearing in court and when the Plaintiff
was released the statements from the Plaintiff and Phumeza
were
available and it turned out that the statement by Banda was false.
pp)
He stated he had no knowledge of what
transpired after he had arrested and detained the Plaintiff or why
Banda would lie to him
that he had been robbed.
qq)
He stated that he was satisfied that the
elements of the crime were clear and it was alleged by Mr Banda that
the person had a weapon,
he was not going to conduct a trial at the
charge office by questioning witnesses.
rr)
It was put to him that Phumeza was visited
by the police at
14H30 on the same day
of the arrest of the Plaintiff
and she
told the Police that no violence or threats were used and that the
goods were handed over by consent. (my emphasis)
ss)
It was put to him that the police acting
reasonably would have phoned the ex-girlfriend to verify the
truthfulness of the statement.
tt)
His response was that there was a list of
stolen items and Banda’s explanation was sufficient. The rest
would be the duty
of the investigating officer to investigate.
uu)
It was put to him that the Plaintiff should
have been brought before court at 11am on Monday at the latest and
that did not happen.
vv)
He stated that he is unaware of this as
this was the duty of the investigating officer as he last saw the
Plaintiff when he arrested
him and he usually takes persons to court
the following day with matters that he deals with like shoplifters,
he does not know
how robberies are investigated but that they should
be brought to court within 48 hours and re-iterated that his arrest
was lawful
since he was satisfied that the complainant was honest.
b)
The next witness was
Mhangabezi
Mbarhane
who was the investigating
officer in the matter.
(i)
According to him he received the docket on
a Monday afternoon and he consulted with the Plaintiff and obtained
his statement and
discovered that there were other statements that
needed to be obtained. He then perused the docket and decided to
release the Plaintiff
on warning with the intention of obtaining all
the documents and he then sent the docket for decision by the public
prosecutor
for decision and the prosecutor declined to prosecute.
(ii)
It was put to him that the Plaintiff made a
written statement on the 8
th
of November 2012 wherein he stated that he did not have a knife in
his possession on the 7
th
of November 2012 and that no violence was used.
(iii)
He got the goods on the understanding that
he would keep it until the money he had loaned was repaid to him.
(iv)
His response was that he did not dispute
that and as the investigating officer he sometimes makes a decision
to first collect the
evidence
before
charging a person
. (my emphasis)
(v)
He stated that he would have arrested an
accused person on the basis of the statement of the complainant only
without obtaining
a statement from a witness.
(vi)
It was put to him that Phumeza would state
that the Plaintiff did not have a knife when they went to the
complainant’s premises
and no violence was used. There was an
agreement between the Plaintiff and the complainant that the goods
would be kept until the
loan was repaid.
(vii)
He stated that he could not dispute that
and he had taken her statement after he received the docket on the
Monday.
(viii)
It was put to him that he must have already
been in possession of her statement that is why he made the recording
“
it appears that the complainant
lied to the police that he was robbed.”
(ix)
His response was that he took her statement
on the 14
th
of November 2012 and the entry he made on the 12
th
of November 2012 is something he thought about himself.
(x)
It was put to him that Phumeza was visited
on the 8
th
of November 2012 by the police in connection with this matter. He
stated that he could not dispute that but he was not the person
who
visited her.
(xi)
It was put to him that the complainant had
told Phumeza that he was coming with the police to identify her.
(xii)
He stated that she may have made a
statement but it may not have been in writing and it was not in the
docket. It was only the complainant’s
statement and the stolen
items that were in the docket. He only obtained her statement on the
14
th
of November 2012. The Plaintiff had told him his version prior to him
releasing him.
(xiii)
According to him if the Plaintiff had given
him his version and the complainant his, he would have released the
Plaintiff on warning
and did his investigations.
(xiv)
He sometimes prefers getting an opinion
from the prosecutor prior to charging a person but that an arrest is
dealt with differently
from investigations or dealing with the
docket.
(xv)
It was put to him that the Plaintiff was
arrested at 11am on the 8
th
of November 2012 and released at 18H00 on the 12
th
of November 2012.
(xvi)
He stated that he did not dispute that and
that the occurrence book would confirm the times.
(xvii)
He stated that he does not know why the
Plaintiff was not brought before court on Friday, he only received
the docket on Monday
afternoon and was told that someone had been
arrested.
(xviii)
He did not have an explanation as to why it
was not attended to from the Friday until the Monday.
(xix)
According to him all the dockets are taken
by the members on a Friday to Savoy and allocated to persons.
(xx)
He conceded that the 48 hours within
which an accused person had to be brought to court had expired. (My
emphasis).
(xxi)
He conceded that the Plaintiff was not
brought before a court of law and that this purpose of arrest was not
attained.
(xxii)
According to him the investigation is done
by the investigating officer, the arresting officer arrested on the
basis of the allegation
by the complainant that the Plaintiff had
robbed and the allegations on the statement was sufficient to arrest
for robbery because
the person was threatened verbally that there
would be shedding of blood and the pointing of the knife.
(xxiii)
He confirmed that it was his duty to bring
the Plaintiff before a court of law and he failed to do so because he
only received the
docket on the Monday afternoon and central police
also had a responsibility to ensure that a person is charged because
they know
when a person arrives there and they failed to do so.
(xxiv)
According to him he would have arrested the
plaintiff but not detained him, he would have warned him and released
him because the
explanation on the statement was not adequate he
would want more statements.
(xxv)
It was put to him that Phumeza was visited
by the police on the 8
th
of November 2012 and that she was told on the 9
th
of November 2012 that she must visit the investigating officer at
Savoy but when she went there she was told that the investigating
officer was in Elliotdale.
(xxvi)
It was put to him that Phumeza would say
that she and the complainant were still in a love relationship but it
was not a strong
relationship as she had her own boyfriend other than
the complainant. He stated that he could not dispute that.
(xxvii)
It was put to him that at the time of his
arrest the Plaintiff was married with 4 (four) children and this was
the first time he
was arrested and detained. That the blankets in the
cells were dirty and smelly and the toilet is in the same area where
they sleep
and eat and was smelly and he had asked him to give him
something to confirm that he had been arrested and detained in the
police
cells. The Plaintiff felt belittled and was unable to earn a
living due to his arrest and detention since he was self-employed.
(xxviii)He
did not dispute any of the Plaintiff’s versions.
(xxix)
He confirmed that he did not obtain a
statement from the girlfriend referred to in Mr Banda’s
statement, he thinks it is because
she was not around prior to him
taking the docket for decision.
(xxx)
He cannot recall what he spoke to Mr Banda
about although he is sure that he did call him.
(xxxi)
That concluded the Defendant’s case.
3.
The Plaintiff thereafter called it’s
first witness:
a)
Phumeza Gladile
who testified as follows:-
(i)
She stated that she was 28 years of age and
worked at the spar in Northcrest (Mthatha) in 2012.
(ii)
Banda was her boyfriend and the Plaintiff
was his cousin brother.
(iii)
Banda told her that he was leaving for his
home and she should come to take her belongings from his place.
(iv)
She asked the Plaintiff if he had heard
that Banda was leaving back to Malawi.
(v)
She arranged for a van to collect her
fridge and the
Plaintiff asked if he
could accompany her because he was owed monies by Banda and wanted to
establish when he would be paid back
that money. (My emphasis).
(vi)
According to her it was Banda who suggested
that the Plaintiff should take items and keep them until Banda paid
for them, when the
Plaintiff questioned Banda about the money owed by
him to the Plaintiff.
(vii)
Banda even assisted them in loading it onto
the van and they greeted each other as they left, according to her.
(viii)
Banda’s girlfriend was also present
during their visit.
(ix)
According to her she was called by the
Plaintiff
the following day
and he told her that he had been arrested as Banda had told the
police that the Plaintiff had broken in carrying a knife. Banda
thereafter called her saying he was coming with the police.
(My
emphasis)
.
(x)
The police thereafter visited her at her
place of work.
(xi)
According to her she asked Banda why he had
gone to the police when he had spoken to the Plaintiff and said that
he could have his
items; and when he has the money he would pay the
Plaintiff back and take his items.
(xii)
According to her Banda further told the
police that he did not want her to be arrested he only wanted the
Plaintiff arrested. The
police asked him what would the reason be if
they had talked it over. The police were harsh with him and said he
was making them
work on something that they should not be working on
since there had been an agreement.
(xiii)
They left Banda and she went back to work
after she told them that there was no break-in and it was all by
consent.
(xiv)
According to her she went to Savoy on two
occasions after being called by the investigating officer and did not
find the investigating
officer there.
(xv)
She made a statement to the police after
the Plaintiff was released.
(xvi)
She denied Banda’s version of events
and stated that he agreed most and even assisted them. The goods were
handed over peacefully
and nicely by consent.
(xvii)
According to her she had no issues with
Banda having another girlfriend and she in fact had another
boyfriend. He was still her
friend and he visited her at work and she
had no reason to be aggrieved by his departure.
(xviii)
Under cross-examination she confirmed that
she had made a statement to the police and it was read back to her
before she signed
it.
(xix)
It was put to her that in the statement she
referred to Banda being her boyfriend in the past tense using the
words “
he was my boyfriend”
despite saying in court that they were still in a relationship
despite the fact that she had moved out because he was involved
with
someone else. According to her she and Banda were last in an intimate
relationship in October 2012. Whereas in her statement
she said that
she left him in September 2012.
(xx)
It was put to her that in her statement she
said she had heard rumours that Banda was leaving whereas in court
she stated that he
told her. She stated that he told her and the
police recorded it in incorrectly.
(xxi)
It was put to her that even the Plaintiff
had also stated that he had heard rumours. She stated that the
Plaintiff had heard it
from her but he also did not say that in his
statement.
(xxii)
It was put to her that in her statement she
had told the police that she was going to collect her belongings and
the Plaintiff was
going to take property until Banda pays for it.
(xxiii)
She stated that they did go to Banda but it
was taken after they talked and agreed. The Plaintiff did not go
there to fetch Banda’s
goods but to fetch his money in the
absence of which they agreed that he would take Banda’s goods
despite it not being recorded
in the statement that he was going
there to get his monies. Her response was that the Plaintiff was not
going there to take, he
was going there to talk and the statement is
incorrect.
(xxiv)
It was put to her that in the statement it
was recorded that after some days she received a report that the
Plaintiff had been arrested
for robbery.
(xxv)
She initially said yes that is what was
said and then said not after some days when she was questioned as to
why she did not mention
that she was visited by Banda and the police
in her statement her response was that she was not asked.
(xxvi)
It was put to her that it was never put to
the 1
st
or
2
nd
witness that the Plaintiff had called her on the day of his arrest
and her response was that both the Plaintiff and Banda called
her and
that Banda had gone with the police to her work place.
(xxvii)
In chief she stated that it was only the
fridge that belonged to her that was taken by her and under
cross-examination she stated
that it was the fridge and kitchen
utensils, pots etc that belonged to her and stated her reason for not
mentioning the pots etc
was that she was asked what of importance she
had gone to fetch.
(xxviii)
She was adamant that the Plaintiff did not have a knife stating “
of
course he did not have one he was going with me from his place of
work, I don’t think he could go to work with a knife.”
(xxix)
She eventually conceded that she did not
search him but stated that she knew that he does not carry such
things and she never saw
him carrying them and that a person carrying
a sharp object is visible and he had none. She said that the
Plaintiff was wearing
a T shirt and she knew him not to be carrying
knives.
(xxx)
She was not able to explain why the
complainant listed the fridge as one of the items that had been
stolen. She was adamant that
she was on good terms with Mr Banda and
there was no fight or revenge and she was giving him space to be
happy.
(xxxi)
Under re-examination she stated that the
statement was read back to her in English and that she does not know
English despite not
mentioning this when she was questioned
specifically with regard to the statement and despite the fact that
it was evident to the
court during the course of her testimoney that
she responded to questions that were posed in English even before it
was interpreted
and she appeared to comprehend English quite well.
b)
The Plaintiff thereafter testified as
follows:-
(i)
That he is 41 years of age residing at
Bizana with his wife and has four children aged 3, 8, 11 and 14.
(ii)
According to him he was informed by Simon’s
girlfriend that he was leaving and
she
asked him to accompany her to Simon’s house to collect her
belongings
.
(My
emphasis).
(iii)
He was surprised that Simon Banda was
leaving without informing him and he took the opportunity to
investigate and Simon upon being
questioned admitted that he was
leaving.
(iv)
When he questioned him about the loan Simon
told him that he did not have money but that he would leave his goods
with the Plaintiff
and collect it when he paid him the money when he
came back from Malawi.
(v)
There was no argument between them, the
goods were handed over by mutual consent and he took it home.
(vi)
He denied being armed or making any threats
to Simon.
(vii)
He was called to the police station and saw
Simon there. Simon was alleging that he had used force despite the
fact that the night
before he had handed over the goods voluntarily
and with a good heart.
(viii)
He told the police that it was by mutual
agreement but the police did not listen to him and simply said that
there was a charge.
(ix)
He told the police that there were four
persons present at the scene. Simon, his girlfriend, Phumeza and him
and they had reached
an agreement that he should keep the goods as
security for the money Simon owed him.
(x)
Simon went to his house to collect his
goods from the Plaintiff’s wife saying that he would withdraw
charges if the goods
were returned but the Plaintiff’s wife
refused to give the goods until the court proceedings were concluded.
(xi)
He was arrested on Thursday at about 11am
and he was released at about 6pm on Monday after spending the entire
weekend in jail without
appearing in court.
(xii)
The conditions in prison were traumatic
were terrible, with stinking blankets and toilets and he was forced
to be incarcerated with
persons alleged to be robbers and rapists.
(xiii)
This was the first time that he was kept in
custody. He is a self-employed hawker and he also sells traditional
medication.
(xiv)
He denied committing any robbery. He lost
respect and was defamed and humilated in the process.
(xv)
He told the police that there were other
people that were present to establish whether or not there was
violence. They instead just
apprehended him and placed him in
custody.
(xvi)
Under-cross examination he initially stated
that he was told by Phumeza that Banda was leaving and he must
accompany her to fetch
goods, but thereafter said she told him this
the previous day and when his statement was put to him said that he
had heard rumours
but it had not been confirmed until he asked Banda.
(xvii)
He stated that when he went to the premises
Banda asked him in their language why he had brought Phumeza there
and he apologised
and said that she had requested him to accompany
her but he did not know that there was someone in the house.
(xviii)
Banda gave Phumeza her items and there was
no altercation.
(xix)
He confirmed his statement when it was read
to him by the defendant’s representative after stating that it
was not read to
him by the police.
(xx)
His explanation as to why he did not say
that he had accompanied Phumeza was that she was not at the police
station and he had also
gone there for his money.
(xxi)
He denied that Phumeza told him that she
had broken up with Banda saying she kept the break up secret.
(xxii)
He denied that he had the intention of
taking Banda’s goods before they went to Banda’s place
despite this being contained
in Phumeza’s statement to the
police. He stated that it might be true because according to Phumeza
she was going there to
collect her goods.
(xxiii)
He stated however that he went there with
the intention to ask for his money not take the goods. Phumeza is
lying according to him,
when she states that he was going there to
collect the goods.
(xxiv)
He created a long elaborate story as to why
Banda would give him the bed and say that he would go and stay with
his girlfriend in
Ngangalezwe and he could take the goods until he
returned and that Banda would have nonetheless left the bed with him
for safekeeping
so that he would not pay rental whilst he was gone
since he was Banda’s closest relative.
(xxv)
He was unable to explain why Banda would
say that he was robbed or go to his wife asking her to release the
goods.
(xxvi)
He admitted that the police asked him to
return the goods but he refused as he was not sure that he would get
the money that is
why he held onto the goods.
(xxvii)
He decided to keep the goods because he
would not recover the money and that Banda was using the police
wrongfully.
(xxviii)The
police were concentrating on the goods and not about his money
according to him. He confirmed that he refused to release
the goods.
(xxix)
He admitted that he refused to release the
goods and confirmed that the possibility existed that he would have
been released had
he returned the goods.
(xxx)
He confirmed that they told him that if he
did not give back the goods he would be arrested and he elected to
state his version
in court.
(xxxi)
That concluded the Plaintiff’s case.
4.
It is necessary to briefly evaluate the
testimony of the witnesses called on behalf of the Defendant and the
Plaintiff, in order
to make credibility findings.
a)
The arresting officer impressed me as a
credible and reliable witness. He created a very good impression on
the court both with
regard to his demeanour and his actual
testimoney. His testimony revealed that he had satisfied himself from
the available evidence
that an arrest on a charge of robbery was
warranted, that is, that the complainant’s statement revealed
the presence of all
the elements of the offence and in addition the
Plaintiff admitted that the goods were in his possession. He conceded
that he did
not obtain statements from the other persons named in the
complainant’s statement but stated that that was for the
investigators.
He was satisfied that an offence was committed
justifying the arrest and detention of the Plaintiff. He emphatically
denied that
the Plaintiff told him about any agreement between the
complainant and the Plaintiff regarding the goods and stated that he
only
questioned the Plaintiff about where the goods were and the
Plaintiff admitted that the goods were with him and that he refused
to return them to the complainant. I accept his version of what
transpired between him and the Plaintiff and with regard to what
he
questioned the Plaintiff on and what the Plaintiff’s responses
were. He was forthright and honest and did not appear to
be
attempting to mislead the court.
b)
The investigating officer willingly made
concessions and stated what he would have done if he was faced with
the Plaintiff’s
version as told to him with regard to what had
transpired between the complainant and the Plaintiff. He would have
arrested the
Plaintiff but released him on warning until he had
concluded his investigations, but that there was sufficient evidence
to arrest
the Plaintiff on. He would not have charged the Plaintiff
prior to concluding his investigations. The Investigating Officer
conceded
that the Plaintiff was detained in excess of the 48 hours
and was released without being brought to court. He was a credible
witness.
c)
Phumeza, the Plaintiff’s witness was
an unsatisfactory witness. There were discrepancies between her
evidence in chief and
under cross examination as well as between her
evidence and the statement she made to the police as well as between
her testimony
and the version put to the witnesses on her behalf and
between her testimony and that of the Plaintiff. Her version that she
and
Banda were on good terms and were still lovers is clearly a
fabrication if one has regard to the fact that she deliberately went
to the Plaintiff and informed him that Banda was leaving and went
with him to Banda’s premises. She was aware that he and
Banda
worked at the same premises. There would accordingly be no need for
her to give him this information knowing that Banda owed
the
Plaintiff money, unless she intended causing problems. The Plaintiff
himself stated that Banda was not expecting Phumeza and
even asked
him why he had brought her there. That conduct is clearly not in
keeping with an individual who has invited someone
to come and take
her goods and informed her that he is leaving.
Even her version
that Banda was the one who agreed to hand over the goods voluntarily
is contrary to the version put on behalf of
the Plaintiff that it was
the Plaintiff’s suggestion and accepted by Banda and not that
this was a suggestion by Banda and
an acceptance by the Plaintiff as
indicated by her and as subsequently testified to by the Plaintiff.
This was also contrary to
what she had stated in her statement to the
police.
I was most
unimpressed with her as a witness; she clearly appeared to be
fabricating her testimoney. She even attempted to distance
herself
from her statement under re-examination claiming that she did not
understand English whereas it was evident during the
course of the
proceedings that she responded to the questions posed in English even
before it was interpreted. This again was an
attempt on her part to
explain away the discrepancies between her statement and her
testimoney upon realising that it did not support
the version she was
attempting to present to court.
I
have no hesitation whatsoever in rejecting her testimony and finding
her to be an untruthful and unreliable witness who fabricated
her
version as she went along.
d)
The Plaintiff likewise was an unimpressive
witness whose testimony in chief differed from his evidence under
cross examination and
between the version put on his behalf and his
actual testimony and that of his witness.
It was evident that
he was tailoring his evidence to deal with the questions posed. He
was a pathetic witness and his version regarding
Banda voluntarily
handing over the goods in circumstances where Banda not only reported
the matter to the police but also went
to obtain the return of the
goods from the Plaintiff’s wife is highly improbable. Further
if one has regard to the Plaintiff’s
testimony that he was not
going to return the goods because his money was not secured despite
this being a circumstance that would
have prevented him from being
arrested and detained. Favours the findings of a forced removal by
means of self-help of goods rather
than a voluntary handing over
because it is evident that he went there wanting his money or
security and if we have regard to Phumeza’s
statement he went
there intending to remove the goods in lieu of repayment of the loan.
His
version in the circumstances of this case is improbable. He further
was a most unsatisfactory witness. I have no hesitation
in rejecting
his version as being untrue both with regard to what transpired at
Banda’s place and at the time of his arrest.
5.
Despite my finding that the Plaintiff and
his witness were pathetic and unreliable witnesses. I nonetheless
need to ascertain:-
(a)
Whether or not the Defendant discharged the onus resting upon it to
establish that the arrest and detention was lawful; and
(b)
Whether or not the Plaintiff is entitled to damages for the period
beyond the 48 hours detention even in the event of the initial
arrest
and detention being found to be lawful.
6.
(a)
The Plaintiff and his witness were as
already indicated found to be pathetic witnesses. The arresting
officer made an excellent
impression on the court and his version of
events is preferred to that of the Plaintiff where they differ from
each other. The
issue however is whether or not his arrest and
detention of the Plaintiff was justified.
(b) Section 40 (1)
(b) of the Criminal Procedure Act 51 of 1977 (The CPA) provides.
“
A
peace officer may without a warrant arrest any person-
i)
……
ii)
Whom he reasonably suspects of
having committed an offence referred to in schedule 1, other than the
offence of escaping from lawful
custody.”
(c) The
jurisdictional requirements that activate the discretion to arrest in
terms of section 40 (1) (b) of the CPA are:-
i)
The person effecting the arrest must be a
peace officer;
ii)
He or she must entertain a suspicion;
iii)
That suspicion must be that the arrestee
committed a schedule 1 offence; and
iv)
The
suspicion must rest on reasonable grounds
[1]
.
(d)
There was no dispute with regard to the authority to arrest or that
the offence the Plaintiff was charged with fell within the
ambit of
Schedule 1. It was evident from the argument presented and the nature
of the cross-examination that what was in contention
was whether or
not the arresting officer had sufficient information before him which
would constitute reasonable grounds to form
a suspicion that
justified an arrest. It was argued that considering that the
investigating officer would not have charged and
detained the
Plaintiff that a reasonable officer would not have done so either. It
was further argued that the other persons mentioned
and being present
during the incident ought to have been questioned and statements
obtained from them prior to arresting the Plaintiff.
(e)
The fact that the investigating officer would have acted differently
does not mean that the actions of the arresting officer
were
unreasonable.
(f)
The investigating officer based his hypothesis on the Plaintiff’s
version presented to him that an explanation was furnished
that there
was an agreement between the parties so there were two mutually
destructive versions presented to the arresting officer
whereas the
arresting officer stated that nothing was told to him about any
agreement and nor did he interrogate the Plaintiff
in this regard but
merely asked if he had the goods which was confirmed by the Plaintiff
and the Plaintiff refused to return the
goods, which version I
accepted.
The
arresting officer stated in fact that there was sufficient
information to arrest and the investigating officer stated that on
the complainant’s statement he would have also arrested. The
arresting officer merely had to form a suspicion based on reasonable
grounds that an offence had been committed. The complainant’s
statement provided reasonable grounds to justify the arrest
according
to the arresting officer and the investigating officer confirmed this
as well. The Plaintiff’s conduct confirming
that he indeed had
the goods and his refusal to return the goods furthered the arresting
officer’s suspicion.
The
requirements as set out in the authorities have been met in that his
suspicion was based on reasonable grounds and he was justified
in
effecting the arrest without a warrant in the circumstances of this
case.
(g)
The Plaintiff’s arrest and detention is accordingly found to be
lawful.
7.
It is common cause in this case that the
Plaintiff remained in custody until 6pm on the Monday in excess of
the 48 hour time period
having been arrested at 11am on
Thursday.
a)
Section 50 (1) (d) (iii) of Act 51 of 1977
provides that: “
at a time when the
arrested person is outside the area of jurisdiction of the lower
court to which he or she is being brought for
the purposes of further
detention and he or she is at such time in transit from a police
station or other place of detention to
such court, the said period
shall be deemed to expire at the end of the court day next succeeding
the day on which such arrested
person is brought within the area of
jurisdiction of such court.”
b)
In
Geldenhuys
[2]
it
is provided that, the 48- hours period is considerably
extended by Section 50(1)(d)(i)-if the 48-hours period expires-
(i)
On a day which is not a court day,
or on any court day after 4pm(16:00),then the said period is deemed
to expire at 4pm(16:00)on
the court day(this means that if the person
is arrested on a Wednesday evening, the 48 hour period is deemed to
expire the next
Monday at 4pm(16:00);
c)
Section 50(1)(c) stipulates that an
arrested person shall be brought before a lower court as soon as
reasonably possible but not
later than 48 hours after his arrest in
those cases where he is not released as provided for in sub-s (1)(c).
Where the 48-period
expires outside ordinary court hours or on a day
which is not an ordinary court day, the arrested person shall be
brought before
a lower court not later than the end of the first
court day (1) (d).
d)
In terms of Section 50(2) (a) and (b) of
the Act 51 of 1977 it is provides that:
“
For
the purpose of this Section-
(i)
“
a
Court
day
“ means a day on which
the court in question normally sits as the court and “ordinary
court day” has the corresponding
meaning; and
(ii)
“
ordinary court hours”
means the hours from 09:00 until 16:00n on a court day”
e)
Moreover
,
DUNCAN v MINISTER OF LAW AND ORDER
[3]
provide
s
that
“
although
the period of 48 hours for which an arrested person could lawfully be
held before he was brought to court has remained
unchanged, that
period has been extended in certain circumstances to cater for the
inevitable administrative difficulties which
arise because courts do
not now sit on Saturdays and never did sit on Sundays and public
holidays for the conduct of their normal
business.”
Thus,
I infer that the time limit must be adhered to except in the
circumstances adumbrated in Section 50(1) (d) of the Act 51 of
1977
and this is confirmed in
Mtungwa
1931 TPD 466
,
where an accused
escaped from custody after having been arrested without a warrant and
after he had been detained for more than
48 hours. The court held
that the accused could not be convicted of the crime of escaping from
custody.”
f)
In this case the Plaintiff was only
released at 6pm and accordingly his detention beyond the statutory 48
hours detention is unlawful
and he is entitled to damages for his
incarceration beyond that period.
g)
It is evident from the provisions of
section 50 (1) (d) that it is the period from 4pm to 6pm on the
Monday that is considered to
be the period that exceeds the lawful
period of his detention despite him having been arrested at 11am on
the Thursday.
h)
However
in considering an appropriate amount to be awarded to the Plaintiff
for damages I am alive to the dictum in
Mashilo
and Another v Prinsloo
[4]
“
The
matter could have been decided in the court below without resorting
to a strained interpretation of s 50(1) (d). The outer limit
of 48
hours envisaged in the subsection does not, without more, entitle a
policeman to detain someone for that entire period without
bringing
him to court if it could be done earlier. The subsection obliges
police authorities to bring someone before court as soon
as is
reasonably possible. This is so, whether or not the 48 hour expires
before or during the weekend. Expedition, relative to
circumstances,
is what is dictated by the subsection and the Constitution”.
i)
I am, despite the short period of unlawful
detention and in the absence of a legitimate explanation for the
failure to bring the
Plaintiff before court at an earlier stage,
inclined in the circumstances of this case to award the Plaintiff
R10 000-00 as
damages for the unlawful detention, beyond the
lawful period of 48 hours detention.
j)
I am not persuaded that this matter
warranted adjudication in the high court and there are no
circumstances that have been presented
that warrant my exercising my
discretion in making an award of costs on a high court scale.
8.
In the circumstances I make the following
order:
a)
That the Plaintiff’s arrest is lawful
and justified.
b)
The Plaintiff’s detention up until
4pm on Monday is found to be lawful and justified.
c)
The Plaintiff’s claim in respect of
unlawful arrest and detention until 4pm on Monday is accordingly
dismissed.
d)
The Plaintiff’s detention beyond the
48 hour period, that is, from 4pm to 6pm on Monday is unlawful and
wrongful.
e)
The Plaintiff is awarded the sum of
R10 000-00 as damages for the period of his detention that is
found to be unlawful.
f)
The Defendant is directed to pay the
Plaintiff’s cost of suit on the appropriate magistrate’s
court scale.
_______________________
DAWOOD
J
JUDGE
OF THE HIGH COURT
EASTERN
CAPE LOCAL DIVISION: MTHATHA
Date
heard: 29 January 2015
Date
delivered: 19 March 2015
FOR
THE PLAINTIFF: MR KUNJU
INSTRUCTED
BY: S. BOOI & SONS ATTORNEYS
Office
No 3 Clublink Building
No
28 Madeira Street
Mthatha
FOR
THE RESPONDENTS: MR MANTYI
INSTRUCTED
BY: MANTYI ATTORNEYS
2
ND
Floor, Absa Building
Suite
204-206
60
Sutherland Street
Mthatha
[1]
Duncan
v Minister of Law and order
1986 (2) SA 805
A at 818 G – H;
and
Minister
of Safety and Security v Sekhola and another
2011 (5) SA 367
(SCA)
paragraph 6.
[2]
et
al Criminal Procedure Handbook pages 127-128, 10
th
edition
[3]
1986
(2) SA 805
(A) at 808 B-D
[4]
2013
(2) SACR 648
(SCA).