About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Mthatha
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Mthatha
>>
2015
>>
[2015] ZAECMHC 59
|
|
Bango v Minister of Safety And Security (CA90/2012) [2015] ZAECMHC 59 (11 June 2015)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVSION, MTHATHA)
Case
no: CA90/2012
Date
heard: 5 June 2015
Date
delivered: 11 June 2015
In
the matter between
NOMTHUNZI
NOMBULELO
BANGO
Appellant
vs
MINISTER
OF SAFETY AND
SECURITY
Respondent
JUDGMENT
PICKERING
J
:
[1]
The appellant instituted a claim for damages in the sum of
R500 000,00 against the respondent in the High Court, Mthatha,
arising out of her alleged wrongful and unlawful arrest and detention
at the hands of certain police officials in the employ of
respondent. The issues relating to the merits and quantum were
separated and the matter proceeded to trial before Griffiths
J on the
merits only. At the conclusion of the trial Griffiths J
dismissed appellant’s action with costs. With
the
requisite leave the appellant now appeals to the Full Bench of this
Division against the whole of the judgment and order of
the learned
Judge a quo.
[2]
For the sake of convenience I shall refer to the appellant and the
respondent as the plaintiff and defendant respectively.
[3]
Much of what transpired leading up to the arrest and detention of
plaintiff was or became common cause at the trial. It
appears
that plaintiff, together with her husband, one Malusi (Shepherd)
Bango occupied certain residential premises belonging
to one Mlamli
Bango. At some stage Mlamli Bango instituted eviction
proceedings in the High Court, Mthatha, citing as respondents
the
Minister of Justice (first respondent); the Magistrate of Mqanduli
(second respondent); and plaintiff’s husband, Malusi
Bango
(third respondent).
[4]
On 7 October 2004 an order was granted by Hole AJ in the following
terms:
“
1.
That the judgment of the second respondent granted on 7 April 2004 is
hereby reviewed
and set aside.
2.
That the third respondent is hereby directed to vacate the premises
bearing the
residential allotment no 43 at Mqanduli district;
3.
That the third respondent is hereby ordered to pay costs of this
application.
”
[5]
It is common cause that at some time later plaintiff’s husband
noted an appeal against this order and filed an application
for the
rescission thereof. There is no indication as to the fate of
either the appeal or the application. Be that
as it may, it is
also common cause that during February 2007 plaintiff, her husband
and their children were still in occupation
of the premises.
[6]
Eventually, during February 2007, Mlamli Bango approached the
magistrate, Mqanduli, for assistance and attested to an affidavit
on
5 February 2007 in the following terms:
“
I
Mlamli Bango paid an amount of R477, 40 to Mr. C. Koti (Mqanduli
sheriff) for a service the High Court decided on 21-02-06 to
Malusi
Bango respondent in the case 900/04, High Court of South Africa
(Transkei Division). Since 27/07/06 he has not done
the
service. I am aggrieved because I am now a laughter in my
area. I wish he should be punished for this and be forced
to
serve.
” (sic)
[7]
The magistrate thereupon arranged for the sheriff to execute upon the
order of Hole AJ. On 6 March 2007 the sheriff, armed
with the
order of 7 October 2004, proceeded to the premises and evicted not
only plaintiff’s husband therefrom but also plaintiff
and her
family. Their goods and chattels were removed from the house
which was then locked by the sheriff who gave the keys
to Mlamli
Bango.
[8]
Plaintiff thereupon consulted her husband’s attorney in
Mthatha. He advised her that because her husband had noted
an
appeal against the eviction order the sheriff had not been entitled
to execute upon it. The attorney addressed a letter
to this
effect to the sheriff. Plaintiff handed this letter to the
sheriff who, after reading it, gave it back to plaintiff
stating that
he did not understand it as it did not have a High Court stamp.
[9]
Because of the attorney’s advice that she had been wrongfully
evicted plaintiff moved back into the house, entering through
the
back door which had a defective lock. Mlamli Bango then
approached the magistrate again. The magistrate took him
to the
police station and requested to speak to a senior policeman.
They were referred to Captain Mbaleni. The magistrate
related
Mlamli Bango’s complaint to Captain Mbaleni and then left.
[10]
In his evidence Captain Mbaleni confirmed having been shown a copy of
the court order of 7 October 2004 by Mlamli Bango.
In the light
thereof he requested constable Mdubeki to open a case against
plaintiff. He stated that he had formed
a reasonable
suspicion that by re-entering the premises in breach of the court
order plaintiff had committed an offence referred
to in Schedule 1 of
the
Criminal Procedure Act 51 of 1977
. As he put it, he had
concluded that plaintiff should be arrested “
because
there was an order vacating her husband out of those premises”.
This was all that he had relied upon.
[11]
He then instructed constable Diko to accompany constable Mdubeki to
the premises in question together with Mlamli Bango and
to arrest the
plaintiff because of her breach of the terms of the court order.
[12]
In his testimony constable Diko confirmed having been called to
Mbaleni’s office. He stated that “
Captain
Mbaleni showed me a court order in terms of which one Shepherd
and
others
had been evicted from the
homestead of Mlamli Bango and that having been evicted they had
returned into that homestead.
He
further informed me that a case had already been opened by Constable
Mdubeki relating to the fact that some people have -
those
people
have gone against a court
order.
” (My emphasis)
[13]
Diko then requested to be allowed to read the statement made by
Mlamli Bango which was in the docket.
This
statement reads as follows:
“
On
the 01-03-07 I went to the magistrate court applying for an order
that Nomthunzi Bango must get out of my site. Then the
magistrate send sheriff to do that. The sheriff went there and
took off Nomthunzi’s property and told Nomthunzi to
get out of
my site and the sheriff leaft (
sic)
Nomthunzi out of my site. After
the sheriff had gone Nomthunzi took her property back to my site.
I said nothing to
him but on the next day I went to the magistrate
again to report the matter and the magistrate suggested me to open
the case and
I decided to open a case against Nomthunzi as she didn’t
want to get out of site.
”
[14]
After Diko had read the court order and the aforementioned statement
he proceeded to the premises accompanied by Mlamli Bango
and two
other police officers. As they alighted from their motor
vehicle at the premises plaintiff emerged from the house.
At
that stage Mlamli Bango informed the police officers that plaintiff
was “
one of those people who had
been ordered to vacate those premises.
”
He further told them that plaintiff had taken her belongings back
into the house.
[15]
Diko accordingly confronted plaintiff and showed her the court
order. He informed her that she had disregarded a court
order
by breaking into the house and that he was arresting her. Asked
as to what offence he suspected her of having committed
he replied
that “
she disregarded the court
order and then she went on to breaking into those premises. She
entered the premises, which she
had been specifically barred from
entering.
”
[16]
Diko then took plaintiff to the charge office where she was formally
charged. After this she was taken to court along
with the
docket. The court, however, refused to entertain the matter and
plaintiff was taken back to the police station and
detained overnight
in the cells, being released the following day. It is common
cause that plaintiff was charged with housebreaking
with intent to
commit an offence to the prosecutor unknown (count 1); trespass
(count 2) and contempt of court (count 3).
At her trial in the
magistrate’s court she was acquitted on count 1 but convicted
on counts 2 and 3. She appealed to
the High Court against both
these convictions. Her appeal was upheld and she was acquitted
on both counts.
[17]
In his judgment Griffiths J set out the principles to be applied in a
matter such as this as follows:
“
[13]
It is trite that a defendant raising a defence based on
section
40(1)(b)
of the Act bears the onus of establishing the following
jurisdictional facts:
‘
(i)
The arrestor must be a peace officer; (ii) the arrestor must
entertain a suspicion;
(iii) the suspicion must be that the suspect
(the arrestee) committed an offence referred to in Schedule 1; and
(iv) the suspicion
must rest on reasonable grounds.’
[
Minister
of Safety and Security v Sekothoto
2011
(1) SACR 315
(SCA)].
[14]
It is furthermore clear that the test as to whether or not such
suspicion is reasonable is an
objective one. The approach to be
adopted in considering whether or not the suspicion is reasonable was
succinctly set out
by Jones J in the matter of
Mabona
and Another v Minister of Safety and Security and Others
as follows:
‘
It
seems to me that in evaluating his information a reasonable man would
bear in mind that the section authorises drastic police
action.
It authorises an arrest on the strength of a suspicion and without
the need to swear out a warrant, ie something
which otherwise would
be an invasion of private rights and personal liberty. The
reasonable man will therefore analyse and
assess the quality of the
information at his disposal critically, and he will not accept it
lightly or without checking it where
it can be checked. It is
only after an examination of this kind that he will allow himself to
entertain a suspicion which
will justify an arrest. This is not
to say that the information at his disposal must be of sufficiently
high quality and
cogency to engender in him a conviction that he
suspect is in fact guilty. The section requires suspicion but
not certainty.
However, the suspicion must be based upon solid
grounds. Otherwise, it will be flighty or arbitrary, and not a
reasonable
suspicion.’”
[18]
There was some debate in the court a quo as to whether the arresting
officer was Captain Mbaleni or Constable Diko. In
this regard
Griffiths J referred to the fact that Diko had not simply accepted
Captain Mbaleni’s instruction to arrest plaintiff.
He had
instead requested not only to read the court order but also to read
Mlamli Bango’s statement. At the premises
he also took
into account the verbal statement made to him by Mlamli Bango.
The learned Judge found that in the circumstances
Diko had exercised
an independent discretion and that he was therefore the arresting
officer. In my view this finding cannot
be faulted.
[19]
There was also some debate as to whether the offence which Diko
suspected plaintiff had committed fell within the purview of
Schedule
1 to the
Criminal Procedure Act. Having
considered the evidence
in this regard Griffiths J concluded that “
it
seems clear to me that the offence, or offences, of which she was
suspected by Diko of having committed, fell under the relevant
wording of Schedule 1 as it, or they at the very least amounted to
breaking and entering with the intention of committing an offence.
”
[20]
Again, in my view, the learned Judge was clearly correct in this
finding.
[21]
The following issue was whether or not Diko’s suspicion that
plaintiff had committed a Schedule 1 offence was, objectively
viewed,
reasonable, as it was held to be by Griffiths J.
[22]
In this regard Griffiths J stated as follows:
“
[27]
Of some importance in this regard is the fact that the sheriff,
having seen the letter from the plaintiff’s
attorney, did not
communicate this information to the police. Had he done so,
matters might have been different. As
I have indicated earlier
in this judgment. Diko was given all the information available to
Mbaleni notwithstanding which he took
the trouble to satisfy himself
as to the facts of the matter by reading the relevant statement,
perusing the court order and discussing
the matter further with
Bango. Once he had done this, he himself formed the suspicion
that the plaintiff had indeed both
violated a court order and
committed the crime of housebreaking. He had no idea that there
was a possibility that the operation
of the court order might have
been suspended, and I do not believe that it was incumbent upon him,
being in possession of a court
order which on the face of it was
valid and being possessed of the knowledge that the sheriff, an
official of the court, had executed
that very court order, to have
investigated this aspect any further. Additionally, the local
magistrate had taken it upon
himself to bring Bango to the police
station which, in itself, would have lent more credence to Diko’s
belief that the court
order was extant and valid.
[28]
Based on this, Diko’s knowledge that the plaintiff had
re-entered the premises after having
ostensibly been lawfully evicted
therefrom, and his knowledge that the house had been locked and the
keys handed to the sheriff,
served to fortify his suspicion that the
plaintiff had in fact broken into the premises. As it turned
out, the suspicion
was correct to the extent that the plaintiff had
re-entered the premises via the kitchen door which did not require a
key as the
lock was defective. Such an act in itself, as I have
indicated, would amount to housebreaking but Diko did not know about
this, believing that she must have somehow broken the lock herself or
used some other means to break into the premises.
”
[23]
Again I am of the view with respect, that this reasoning cannot be
faulted.
[24]
The learned Judge dealt further with regard to the wording of the
court order itself as follows:
“
As
regards the fact that the court order did not refer to the plaintiff,
but to her husband, Malusi, and that it did not state that
all those
persons residing in the premises through him were also to be evicted,
I do not think anything turns on this. As
I have already said,
the sheriff, rightly or wrongly, interpreted the order to be so
all-encompassing and proceeded by virtue of
such authority to evict
the plaintiff. Furthermore, the magistrate had not disavowed
this and had, by his very presence,
intimated that the actions of the
sheriff were lawful. In my view, and as against this
background, it would be too much to
have expected Diko to have
second-guessed these officials as to the lawfulness of this
document.”
[25]
It is clear, when regard is had to
Ntai
and Others v Vereeniging Town Council and Another
1953 (4) SA 579
(AD), that the Sheriff was entitled to evict from the
premises all those persons claiming through or under Malusi despite
the fact
that the order did not refer to them. See too:
Jones
& Buckle: The Civil Practice of the Magistrate’s Courts in
South Africa
, Vol ii 10
th
ed at Annexure 1-34, note 1.
[26]
I am further not persuaded that Griffiths J erred in his finding that
in all the circumstances “
it would
have been too much to have expected Diko to have second-guessed
”
the magistrate and the Sheriff as to the lawfulness of the court
order.
[27]
In my view therefore the arrest and detention of the plaintiff was as
found by Griffiths J, lawful.
[28]
The appeal accordingly cannot succeed.
[29]
The appeal came before this Court on a number of previous occasions,
only to be postponed on the application of respondent
due to its
remissness particularly in the timeous briefing of counsel. On
each such occasion the costs occasioned by the
postponement were
reserved for later decision. There is no reason why those costs
should not be borne by respondent.
[30]
The following order will issue:
(a)
The appeal is dismissed with costs.
(b)
The respondent is ordered to pay all such
costs as were previously reserved.
__________________
J.D.
PICKERING
JUDGE
OF THE HIGH COURT
I
agree,
__________________
D.
CHETTY
JUDGE
OF THE HIGH COURT
I
agree,
__________________
L.P.
PAKADE
JUDGE
OF THE HIGH COURT
Appearing
on behalf of Appellant: Adv. Ntsaluba
Instructed
by: Caps Pangwa & Associates
Appearing
on behalf of Respondent: Adv. Ntshiba
Instructed
by: M.I. Nthsiba & Associates