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[2015] ZAECMHC 45
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Mpange v Minister of Safety And Security (2786/2013) [2015] ZAECMHC 45 (9 April 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION: MTHATHA)
CASE
NO: 2786/2013
DATE:
09 APRIL 205
In
the matter between:
SIBONGILE
MPANGE
.....................................................................................................
PLAINTIFFF
And
MINISTER
OF SAFETY AND
SECURITY
...................................................................
DEFENDANT
JUDGMENT
HINANA
AJ:-
[1]
It is common cause that :
(i)
on 23 September 2013, the plaintiff was arrested without a warrant at
Maqwathini location, Mthatha by members of the National
Intervention
Unit (NIU) (a unit within the SAPS;
(ii)
he was released on bail on 25 September 2013;
(iii)
he was charged for possession of unlicensed firearm and two rounds of
ammunition;
(iv)
he appeared in court and was granted bail;
(v)
charges against him were withdrawn on 31 January 2014
[2]
This court was called upon to determine whether;
(i)
the arrest and detention of the plaintiff, Mr Sibongile Mpange was
lawful or not; and
(ii)
if unlawful, what amount of money should be awarded to the plaintiff.
[3]
Mr Mdeyide appeared for the plaintiff and Mr Ntayiya appeared for the
defendant.
[4]
In justying the arrest and the subsequent detention of the
plaintiff, the defendant led the evidence of three police
officers
namely:-
(i)
Constable Bongile Earnest Ngcele;
(ii)
Constable Pumzana Patrick Gobidolo;and
(iii)
Warrant Officer Lungisa Ntonga.
[5.1]
Constable Bongile Earnest Ngcele (Ngcele) testified that he is a
policeman attached to the National Intervention Unit,
Mthatha (NIU).
He received information from a member of the Crime Intelligence
Gathering Unit, Mthatha to the effect that
the plaintiff was in
possession of an unlicensed firearm which was used in a commission of
an offence and would be also be used
in the commission of an offence.
[5.2]
He testified that the member from the Crime Intelligence Gathering
Unit (CIG Unit) received this information from his
informer.
The CIG Unit member was later identified as Warrant Officer Lungisa
Ntonga (Ntonga).
[5.3]
Ntonga briefed the members of the NIU including Ngcele and Gobidolo
and other members.
[5.4]
Armed with the information which Ntonga was informed by his informer,
members of the NIU, Ntonga and the unidentified
informer went to
Maqwathini during the night on 23 September 2013.
[5.5]
As they proceeded to Maqwathini, Ntonga was in company of his
informer (who gave Ntonga the information about the firearm).
[5.6]
At Maqwathini, Ntonga only showed Ngcele the house where plaintiff
was and he (Ntonga) did not attend to plaintiff’s
premises.
Ngcele and Gobidolo proceeded to the room where plaintiff was, whilst
other members were attending other houses
within the plaintiff’s
homestead.
[5.7]
Ngcele knocked at the door and plaintiff opened. On entering, Ngcele
identified themselves as police officers and informed
the plaintiff
the reason why they (police) visited his homestead, specifically the
house where plaintiff was. He testified
that he told
plaintiff that they were looking for an unlicensed firearm of which
the plaintiff was in possession of. Plaintiff
replied by saying
it was underneath a pillowcase and Ngcele lifted the pillowcase and
asked the plaintiff to pick the firearm and
hand it to him. The
plaintiff did that. Ngcele then asked the plaintiff to produce
a licence and he could not.
The firearm was a Norinco NZ 75
with its serial numbers filled off. The plaintiff was informed
of his arrest and the reasons
thereof.
[5.8]
He testified that he was not in possession of a search warrant and
neither did he seek a consent from the plaintiff
to search the
premises. According to him, he never searched the plaintiff’s
premises and there was no reason to ask
for consent from the
plaintiff to search the premises. He further testified that he
was sure that the firearm would be found
because the information was
that it was used in the commission of an offence and would soon be
used.
[5.9]
Ngcele further testified that he was justified in arresting the
plaintiff.
[6.1]
Under cross examination, he testified that he warned the
plaintiff of the following constitutional rights after
the seizure of
the firearm and two rounds of ammunition:
(i)
Right to remain silent;
(ii)
Right not to incriminate himself as such incrimination may be used as
evidence against him;
(iii)
Right to be visited by a family member and/ or a priest; and
(iv)
The right to access to telephone, and plaintiff understood those
rights.
[6.2]
He denied that the plaintiff was assaulted by any police officer.
He testified that he gave the plaintiff the
rights referred to above
verbally and did not cause him to sign his pocket book as required by
clause 8(1) (b) of the standing
order
[1]
.
[6.3]
He warned the plaintiff of his constitutional rights after the
plaintiff had picked the firearm underneath the pillowcase.
[7]
Phumzana Gobidolo testified and corroborated Ngcele to the effect
that:
(i)
a firearm was recovered in a room where the plaintiff was,
(ii)
he was in company of the Ngcele when the firearm and ammunition were
recovered.
(iii)
that Ngcele lifted the pillow case after having asked the plaintiff
where was the fire arm;
(iv)
Ngcele asked plaintiff to take the firearm and hand over to him
(Ngcele)
(v)
plaintiff indeed took the fire arm and handed it to Ngcele.
(vi)
they (police) were not armed with a search warrant, and
(vii)
they did not ask for the plaintiff’s consent to search,
(viii)
neither did plaintiff consented to the search ,
(ix)
that the fire arm was said to be used in the commission of an
offence, and would be used in a commission of an
offence,
[8.1]
However, Gobidolo testified that Ngcele warned the plaintiff of his
constitutional rights, being that;
(i)
Ngcele was a police officer;
(ii)
He was arresting plaintiff for being in possession of an unlicensed
firearm and (2) two rounds of ammunition;
(iii)
A right to legal representation and or apply for Legal Aid when he
appears in court
(iv)
Right to remain silent and anything he (plaintiff) says may be used
as evidence against him, and plaintiff understood
those rights.
[9.1]
Gobidolo further testified that they (as police officers) had not
gone to conduct a search of a firearm and ammunition
at plaintiff’s
homestead, but had gone there to take a firearm that they knew they
will find.
[9.2]
Plaintiff was then arrested and detained at Central Police Station by
Ngcele.
[10.1]
Lungisa Nelson Ntonga (Ntonga) testified that he is a member of the
South African Police Services attached to CIG Unit
Mthatha. On
23 September 2013 after 16h30 he received information from his
reliable source to the effect that the plaintiff
was in possession of
an unlicensed firearm and ammunition, and that the firearm was used
in the commission of an offence and would
be used again (in a
commission of an offence).
[10.2]
Upon receipt of this information, he contacted the NIU members and
met Ngcele and Gobidolo outside their NIU offices, Mthatha.
He
briefed them about the information and the two police officers later
briefed their members.
[10.3]
It was agreed that the information must be followed and indeed the
NIU members (Ngcele and Gobidolo included), his
informer and other
members went to Maqwathini. He pointed the house where the
plaintiff was and Gobidolo and Ngcele together
with other members
went to the plaintiff’s room. He remained behind with his
informer because they did not want to
be seen or identified.
[11]
The plaintiff testified and denied that the firearm was found in his
possession. He stated that it was found in another
room where
his mother and father were sleeping. His evidence was
corroborated by his mother who testified on his behalf.
[12.1]
Mr Ntayiya, attorney for the defendant argued that section 20 of the
Criminal Procedure Act does not apply in this case.
The
section provides,
“
The
state may, in accordance with the provisions of this chapter, seize
anything (in this chapter referred to as an article)-
(a)
which is concerned in or is on
reasonable grounds believed to be concerned in the commission or
suspected commission of an offence,
whether within the Republic or
elsewhere;
(b)
which may afford evidence of the
commissioner or suspected commission of an offence, whether within
the Republic or elsewhere; or
(c)
which is intended to be used
or is on reasonable grounds believed to be intended to be used in the
commission of an offence
[12.2]
He further submitted that the police did not go to the plaintiff’s
premises to search but to arrest.
[13]
I, from the outset, did not understand Mr Ntayiya’s submission
at all. In my view, he could not assist the court
in anyway
whatsoever (more of this will be dealt with below).
[14]
He relied on the information which was supplied to Ntonga by an
unknown and faceless informer. However, he conceded
that Ntonga
was not the source of information and even Ntonga, relied on
information from his unidentified informer.
[15
Further, Mr Ntayiya conceded and correctly so in my view that:
(i)
there is no evidence that the informer was reliable
[2]
;
(ii)
there is no evidence to the fact that why the informer could not be
identified, could not testify and why the police believed
the
informer.
(iii)
Ngcele and Gobidolo acted on information supplied to them by Ntonga;
(iv)
that the police were not armed with a search warrant;
(v)
and that Ngcele and Gobidolo did not ask for permission to search the
plaintiff premises and;
[16]
To my utter amazement, Mr Ntayiya argued that the both Ngcele and
Gobidolo had not gone to the plaintiff’s premises
to search but
to arrest the plaintiff. It remained puzzling to me as to what
would have been the reason for the arrest of
the plaintiff as at the
time the members of the NIU left their offices to Maqwathini.
In my view, the police had formed their
intention to arrest even
before leaving their offices for Maqwathini. This is surprising
indeed. They had not gone
there to investigate the correctness
of the information but to arrest.
[17]
Further, both Ngcele and Gobidolo testified that the firearm was used
in a commissssion of an offence and would be used
in a commission of
an offence. However, they failed dismally (and even Mr Ntayiya
could not argue against his own case) to
inform this court or to
answer the following pertinent questions: - i.e
(a)
when and where was the firearm used in a commission of an offence
(b)
what type of an offence was committed, and ;
(c)
by whom
[18]
Also, the police officers (including Mr Ntayiya) could not answer the
following questions:
(i)
when and where was the firearm going to be used;
(ii)
by whom;
(iii)
in committing which offence.
[19]
The police and Mr Ntayiya were only constrained to make a blanket
statement to the effect that in that area (Maqwathini) stock
theft
was the order of the day. Such a statement did not prove that
the firearm was used by the plaintiff in a commission
of an offence
and was intended to be used in a commission of an offence.
[20]
With regard to the arrest of the plaintiff Mr Ntayiya sought to rely
on the provisions of
section 40(1)(h)
of the
Criminal Procedure Act
51 of 1977
. In my view, reliance on this section was an after
thought which was not even pleaded. At the beginning of the
trial,
Mr Ntayiya sought to amend the defendant’s plea, which
amendment was not opposed. As such the court granted the
amendment
sought by Mr Ntayiya. The plea, as further amended
reads as follows:-
“
It
is correct that the plaintiff had not committed any offence in terms
of schedule 1 but was arrested because he committed an offence
in
terms of section 3 of the Fire Arms Control Act, 60 of 2000,
possession of unlicensed fire arm with (2) two rounds of ammunition”
[21]
The arrest and the subsequent detention of the plaintiff was preceded
by
(i)
the visit to his homestead at night on 23 September 2013;
(ii)
the demand by Ngcele that the plaintiff was having a fire arm and
ammunition;
(iii)
the failure by both Ngcele and Gobidolo to inform the plaintiff that
they were about to conduct a search of a fire arm
and ammunition;
(iv)
Both Ngcele and Gobidolo did not ask for the plaintiff’s
permission to search the house;
(v)
According to Ngcele and Gobidolo, the plaintiff agreed that he
had a firearm which was below the pillowcase and
Ngcele lifted the
pillowcase and asked the plaintiff to pick the firearm and hand over
to him (Ngcele) which plaintiff did.
This evidence is disputed
by the plaintiff and his mother, who both testified that the fire arm
belonged to the plaintiff’s
father and was found in a room
where the plaintiff’s parents were, not where the plaintiff was
found by Ngcele and Gobidolo.
[22]
In my view, section 20
[3]
describes an article to be seized by the police. Accordingly,
the defendant’s submissions are that the unlicensed fire
arm
allegedly found to be in possession of the plaintiff was not an item
liable to be seized. Indeed, this was a startling
submission.
Such a submission goes against the provisions of the
Criminal
Procedure Act dealing
with articles liable to be seized.
[23]
If the fire arm was not an item liable to be seized and as argued by
Mr Ntayiya, the only conclusion that one can
arrive at is that the
police had no reasonable grounds to believe that the firearm was
involved in a commission of an offence and
neither were they entitled
to believe that the fire arm would be used in a commission of an
offence. Further, with the positive
answers to paragraph 17 and
18 above, it cannot be said that the firearm was used in the
commission of an offence and/or was
intended to be used
in the commission of an offence.
[24]
A policeman’s belief is objectively viewed. Where, on the
facts as in this case, the policeman’s belief,
objectively
view, would not lead to a reasonable belief, the search and seizure
would be declared unlawful
[4]
.
[25]
I was also amazed to hear both Ngcele and Gobidolo testifying that
they did not even ask for plaintiff’s consent.
At least
they were honest in their testimony in this regard. Once again
section 22
of the
Criminal Procedure Act was
not relied upon by
neither Ngcele, Gobidolo nor Mr Ntayiya, save to say that all three
of them stated that if the plaintiff had
refused them permission to
search, they would have left the premises and come back on the
following day. It is worth mentioning
that when the police
arrived at the plaintiff’s premises, it was after 22h00 on 23
September 2011. I wonder whether
had they left the premises and
came back later or on the following day, the purpose of their visit
would have been successful.
[26]
It seems to me that the police did not know what they were supposed
to have done under circumstances. I find that the
purpose of
their visit was to search and seize the firearm. This is
clearly demonstrated by both Ngcele and Gobidolo who
asked where was
the firearm and it was found underneath a pillowcase. It was not
within their view at the moment they entered the
plaintiff’s
room, hence they asked for it.
[27]
I also find that the defendant failed to justify the arrest and
detention of the plaintiff and should be held liable.
[28]
Even though the plaintiff also claimed for an assault, both Mr
Mdeyide, Counsel for the plaintiff and Mr Ntayiya agreed
that the
plaintiff failed to discharge the onus on him regarding the
assaults. As such this claim must fail.
[29]
With regard to
quantum
,
the plaintiff was arrested on 23 September 2013 at Maqwathini
Location, Mthatha at about 22h00.
[30]
He was handcuffed and taken to Central Police Station where he was
locked in a cell.
[31]
His undisputed evidence about the condition of the cells is as
follows:-
(i)
the toilet was not a closed toilet and one inmate could see the other
when attending to a call of nature;
(ii)
food was pathetic;
(iii)
sleeping blankets were dirty and;
(iv)
there were no beds
[32]
Nugent JA in
Minister
of Safety & Security and another v Seymour
[5]
held
that in assessing damages the primary purpose is not to enrich the
aggrieved party but to offer a
solitium
for his or her injured dignity and loss of liberty. The award
for damages in respect of plaintiff
injuria
cannot be calculated with mathematical precision, recourse must be
heard to guidance in previous similar facts decisions.
[33]
The plaintiff was arrested during the night on 23 September 2013 and
was detained at Central Police Station where cell
conditions were not
good for human occupation. There was no privacy when one inmate
was attending to call of nature.
[34]
The plaintiff further testified that the food was not palatable.
In my view, such conditions are unbearable and
a clear violation of
one’s constitutional rights.
[35]
In my view, the following order is made.
1.
The arrest and detention of the plaintiff on 23 September 2013 to 25
September 213 is declared wrongful and unlawful.
2.
The plaintiff’s claim for assault by members of the National
Intervention Unit on 23 September 2013 is dismissed.
3.
The defendant is directed to pay the plaintiff an amount of
R70 000.00 as a result of the plaintiff’s arrest and
detention.
4.
The defendant is directed to pay costs of suit on the High Court
scale.
M.N.
HINANA
ACTING
JUDGE OF THE HIGH COURT
For
the Plaintiff : Mr Mdeyide
Instructed
by : Mjulelwa Inc
Mthatha
For
the defendant : Mr Ntayiya
Instructed
by : State Attorney
Mthatha
Dates
heard : 16-18 March 2015
23-24
March 2015
Date
delivered : 09 April 2015
[1]
Standing
Order (G) 341 which provides; the member must request the arrested
person to acknowledge that he/she has been informed
of his/her
rights and she/he understands the contents thereof in his/her
pocket book the fact that the information was
so furnished.
[2]
Hiya
v The Minister of Safety & Security & another (Full Bench
decision) case no 506/99 delivered on 19 November 1999
by Zilwa AJ
(as he then was) with Madlanga AJP (as he then was) and Van Zyl J
(as he then was) concurring
[3]
See
paragraph 12.1 above
[4]
S
v Mayekiso en Andere
1996 (2) SACR 298
(C), Mnyungula v Minister of
Safety and Security and others
2004 (1) SACR 219
(Tkei)
[5]
2006(6)
SA 320 (SCA)