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[2014] ZAGPPHC 126
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De Beer and Another v Minister of Police and Another (A409/2013) [2014] ZAGPPHC 126 (27 March 2014)
IN THE HIGH
COURT OF SOUTH AFRICA
/ES
(
GAUTENG
DIVISION, PRETORIA
)
CASE NO:
A409/2013
DATE: 27/3/2014
IN THE MATTER BETWEEN
DANIËL ADRIAAN DE BEER
(CASE 3793/2010)
.................................................
1
ST
APPELLANT
WILLEM HARMSE (CASE
3792/2010)
................................................................
2
ND
APPELLANT
AND
THE MINISTER OF
POLICE
.............................................................................
1
ST
RESPONDENT
INSPECTOR
MANGANYE
................................................................................
2
ND
RESPONDENT
JUDGMENT
PRINSLOO, J
[1] This is an appeal
against a judgment of 11 February 2013 by the learned magistrate in
Pretoria North, Mr Ramahanelo, when he
dismissed damages claims
instituted by the appellants against the two respondents flowing from
alleged unlawful arrest and also
malicious prosecution.
[2] Before us, Mr Bouwer
appeared for the appellants and Mr Wessels appeared for the
respondents.
[3] To avoid possible
confusion, it should be pointed out that the two appellants
instituted their respective damages claims in
the Pretoria North
magistrate's court under separate case numbers, no 3793/2010 (first
appellant) and no 3792/2010 (second appellant).
Both the appellants were
arrested as a result of the same incident which took place on
2 December 2009 and they were both released
together the next
day, 3 December 2009. The pleadings in the two cases, for practical
purposes, can be described as identical.
The two cases were never
formally consolidated, but they were heard as one matter before the
learned magistrate and the appeal
also came before us, effectively,
as one appeal under only one appeal case number. The fate of the
appeal, whatever the result,
will apply to both cases, , although,
technically, it involves two trial actions instituted by the two
appellants. Throughout the
proceedings, this has been the approach of
all concerned, so that nothing really turns on the issue. I add
that the learned
magistrate also gave his judgment, a one and a half
page affair termed "reasons for judgment" under only one of
the Pretoria
North case numbers, namely the one featuring the second
appellant as plaintiff.
In their particulars of
claim, the appellants, respectively, pleaded relief for two claims,
namely one in respect of unlawful arrest
(claim 1) and one in respect
of malicious prosecution (claim 2).
In his "reasons for
judgment" the learned magistrate also dismissed both claims of
each of the appellants (plaintiffs
at the time).
The
appeals in respect of the claims for malicious prosecution abandoned:
rule 41 application of the respondents
[4] In the heads of
argument of the appellants, notice was given that they were not
persisting with the appeal in respect of the
claims for malicious
prosecution and that these appeals were abandoned.
This inspired the
respondents to file an application in terms of rule 41 for a costs
order in their favour in respect of the wasted
costs occasioned by
the claims for malicious prosecution. They did so, because no
tender to pay such costs was contained
in the abandonment.
[5] We debated this issue
with both counsel during the hearing, and no significant resistance
was offered by Mr Bouwer for the appellants.
From this it
follows, that if the appeal is successful, provision must still be
made for a costs order in favour of the respondents
in respect of the
wasted costs flowing from the malicious prosecution claims. If
the appeal fails, such an order will not
be called for.
Brief synopsis of what
the case is about
[6] At all relevant times,
the two appellants worked for the so-called Paragon group which
appears to consist of a number of branches,
each, evidently,
functioning as a close corporation. The first appellant ("De
Beer") was the manager at Paragon
North, a branch situated in
Pretoria North. The second appellant ("Harmse") was
the manager at Paragon Electrical
Distributors CC, situated in
Centurion. The owners of the Paragon group, it is evidently a
family business, were not
called to testify during the trial. Broadly
speaking, Paragon seems to be in the business of electrical work.
Harmse, at
the Centurion branch, only involves himself with the
purchase and resale of electrical copper cables. He only
occupies an
office in Centurion so that supplies bought by him are
regularly stored at the Paragon North premises and also, for example,
at
the Gezina branch.
[7] Harmse buys cables from
various suppliers and then resells them at a profit. The cables
normally comes in rolls or "drums"
and in different sizes,
such as 120mm, and also in different lengths, for example 300m or
500m.
[8] 0ne of the suppliers
from which Harmse had been buying cable for the four years preceding
the trial, is Belma Power Cables and
Accessories ("Belma")
which appears to be a close corporation and is run by a somewhat
shady character by the name of
Ashley Myberry ("Myberry").
[9] 0n 2 December 2009 Mr
Daniel Andries Botha ("Botha") who is attached to a risk
management company contracted by the
Johannesburg Metro to
investigate and prevent cable theft from the Metro, or "City
Power" for present purposes, received
a report about an attempt
to transport cables out of the Metro premises on the strength of
falsified documentation.
[10] What happened
thereafter, is, generally speaking, common cause between the parties,
and amounts to the following: Botha confronted
the occupants of the
truck involved in the report and spoke to the driver, one Mr Sadiki
who was employed by Belma and disclosed
that his instructions were to
first take the cables to a plot at Kameeldrift near Pretoria North
and thereafter to President Steyn
Street in Pretoria North, the
premises of Paragon North. Sadiki had been doing this for the
previous six months. Botha
accompanied the truck and, on the
way, summoned the police including Colonel Mathe ("Mathe")
who was the ultimate arresting
officer of the appellants and who also
gave evidence. Mathe summoned some uniform police officers from
Pretoria North.
The information that Botha got was that the
drums are first taken to the Kameeldrift plot where the markings on
the outside are
tampered with or deleted and which plot belongs to
Myberry. Thereafter the drums are taken to Paragon North.
In the
event, they did not actually visit the Kameeldrift plot but
went to Paragon North where they sought, and were granted, permission
to inspect the nine drums of cables delivered there the previous day
by Sadiki. The drums were opened by removing the wood coverings
and
it turned out that the cables had the name City Power printed on them
and they were manufactured for the Johannesburg Metro
by a concern
called African Cables. Large consumers of cables, such as the
Metro's, arranged for their names to be printed
on the actual
cables. African Cables make these cables only for City Power
and the cables are not distributed to other destinations.
It is
common cause that the cables were stolen. They were worth
approximately R1 million and, over the previous
three years,
City Power had suffered losses, through cable theft, of the order of
R40 million.
De Beer and Harmse were
summoned to the scene and so was Myberry, who in the end did not
arrive but sent his attorney to represent
him.
The evidence of Botha was
corroborated, by and large, by a senior corporate investigator
employed by City Power, Johannesburg, one
Rudi du Plessis.
Botha testified that it
could clearly be observed, from inspecting the outside of the drums,
that the markings thereon were tampered
with. It seems that they were
painted over with black paint. Photographic evidence forming part of
the record is of poor quality
and the observations made by Botha
cannot be gleaned therefrom.
[11] The appellants were
confronted with the fact that stolen cables were found on their
premises. They presented some documentation
in the form of
invoices, delivery notes and proof of payment on the strength of
which they argued that they legitimately bought
the cables from
Belma. They were questioned,
inter alia
, about the fact
that some of the documents appeared to have been generated after the
delivery of the cables which was considered
to be an irregular state
of affairs by the police. Mathe, in particular, who was present
during all these events, said that
he was not happy with the
explanation given and this strange feature of the documentation was
one of the considerations that persuaded
him to give the order for
the arrest of the appellants, subject to further investigations.
In this regard, it is convenient
to quote one of the exchanges
which took place between the respondents' counsel and De Beer
when the latter was cross examined:
"Nou
dit is baie vreemd dat goeters afgelewer word gefaktureer word met
betrekking tot 'n bestellingnommer wat eers drie dae
later gegenereer
word. Sal u dit vreemd vind? --- Ja soos ek netnou gesê
het ek weet nie wat was die betalingsooreenkoms
tussen hulle gewees
nie.
Nee,
maar ek vra nie wat – of u weet wat die betalingsooreenkoms was
nie. Ek stel vir u hier is goeters gelewer nog
voordat die
bestelling gegenereer is. Is dit vreemd? U het u
vereenselwig met hierdie verduideliking. U het gesê
hierdie verduideliking is my verduideliking. --- Dit is reg.
U
verduidelik nou vir die hof dat die goed afgelewer is en gefaktureer
is drie dae voordat dit bestel is. Is dit vreemd? ---
Ja.
Het
u 'n antwoord, is dit 'n ja? --- Dit is reg.
Ek
wil u dan neem na bl 2 tot 7 van dieselfde bundel en wat net vir my
vreemd is dit gaan ook oor 'n paar dokumente wat uitgeloop
het op
betaling maar hier is nie 'n bestelling gegenereer nie. Daar is
nie vir ons 'n bestelling gegee wat sê dit is
die rede hoekom
hierdie fakture en bestelling gegenereer is en betaal is nie.
Sal u dit vreemd vind? --- Ja as 'n mens daarna
kyk ja.
So
ooglopend wil dit vir 'n mens voel maar hier is iets nie lekker nie.
Sal u saam met my daarmee stem? --- Ja.
Sê
net weer, ek kan nie mooi hoor nie. --- Ja."
Harmse, who was more
involved with the preparation of the documentation, testified that
this is the way he used to work, whether
it complies with accepted
accounting practice or not.
[12] Colonel Mathe, the
arresting officer, who was also the senior officer involved, gave
evidence and he was cross-examined intensively
and for a very lengthy
period. I did not get the impression that he was in any way
discredited. He also met Sadiki
on the scene and heard his
explanation. Testifying without an interpreter, Mathe said the
following:
"When
I met them they introduced themselves to me and after that they
reported to me that they are coming from (indistinct)
and City Power
of Johannesburg. They follow information which they get from
Sadiki that he transported cable from Johannesburg
to a certain farm
in Kameeldrift. At the farm the cables were changed, the
outside. They were repainted and then
he transported them to a
place in Pretoria North ..."
Mathe testified that Sadiki
pointed out the nine drums of stolen cables that he said he had
delivered the previous day. He dealt
with the common cause facts that
the cables were stolen and the property of City Power. He confirmed
his personal inspection of
the documentation and his concern about
the discrepancy,
supra
, between the date of the paper work and
the date of the delivery. Perhaps not very eloquently, he put
it as follows:
"Then
just there I said how can it be that delivery came before the
transaction. Then they could not explain furthermore.
Then I said ok, now the people of City Power identified the cables as
their property. So based on that and the proof that
you are
showing me now, I have got the reason of suspicion that because they
say the cables were stolen in Johannesburg ... I also
have suspicion
that they are stolen. I identified the people of Pretoria North
and told them this is your area and you are
with us on the scene so
now you take over the scene and arrest the managers, because they
cannot explain to us how can it happen
that they first received the
load before the transaction took place ..."
He insisted that he asked
both De Beer and Harmse for an explanation and that the explanation
was not satisfactory. He could not
remember the name of the officer
who was instructed to effect the actual arrest. It turned out to be
Constable Labuschagne, who
also testified on behalf of the
respondents. In cross-examination, Labuschagne was also
confronted with the wording of Police
Standing 0rder 341(3) which
reads as follows:
"There
are various methods by which an accused attendance at the trial may
be secured. Although arrest is one of these
methods, it
constitutes one of the most drastic infringements on the right of an
individual and a member should therefore regard
it as a last resort."
Labuschagne, even against
this background, insisted that he felt that they did the right thing
to arrest at the time.
[13] Towards the end of his
lengthy and intensive cross-examination, Mathe again confirmed that
he was the officer who gave the
order for the arrest to be effected
and then the following exchanges took place:
"You
knew that there was investigation outstanding. --- Yes, after the
arrest.
Hence
the arrest. --- The arrest, yes, for further investigation to take
place.
So
are you saying now that the plaintiffs were arrested so that further
investigation can take place? --- I said when I started,
they were
arrested based on the issue of reason of suspicion of possession of
stolen property, failure to give satisfactory explanation.
So
why was it necessary to arrest the plaintiffs, so that you can do
further investigation? Why? --- Because there was no
satisfactory explanation regarding the possession of the goods. And
also the transaction and the delivery was questionable."
[14] During his
cross-examination, Mathe also confirmed that he was well aware of the
fact that he had a discretion to arrest and
did not have to arrest
but he felt that he acted properly in terms of his discretion.
[15] The second respondent,
Silas 0upa Manganye ("Manganye") also gave evidence. He
holds the rank of warrant officer.
He is employed at SAPS 0rganised
Crime Pretoria. He was on the scene with Colonel Mathe and took note
of all the reports that came
in. He was present when the information
came that the cables were stolen and that the outside of the drums
were obliterated with
black paint at the Kameeldrift plot.
He was not the arresting
officer and did not give the order to arrest. He left that to the
senior officers. He does not know whether
he was actually present
when the order to arrest was given. He also does not recall which
officer effected the actual arrest. He
had the docket, and visited
the appellants the same evening after the arrest at the Pretoria
North police cells and again the following
day when they told him
that they would help him to get the "person whom they bought the
cables from" and would help with
the investigation. He
also negotiated with the appellants and their attorney and decided to
release them in view of their
promised assistance with the
investigation. He also signed the so-called SAP.328 forms
"release of suspect" in
respect of both appellants.
Accoding to these two documents, the appellants were detained at
about 18:40 on 2 December
2009. The evidence was that they
were released at about midday the following day. The "brief
reasons for detention"
is described as "possession of
suspected stolen property – copper cables" (in the case of
Harmse) and "possession
of stolen goods" (in the case of De
Beer). The "brief reasons for release" are given as "the
suspect cannot
be linked with the abovementioned offence at this
stage".
Manganye was also
cross-examined at length and
ad nauseum
about whether or not
he thought that the appellants gave an acceptable explanation for
their involvement before the arrest.
He insisted that he could
not quite remember the details.
As Mr Wessels pointed out
in his heads of argument, the question whether the arresting officer
harboured a reasonable suspicion
is what is relevant. This is
the officer who gives the instruction that the arrest must take
place. – See
Minister of Justice v Ndala
1956 2 SA 777
(T) at 780A C and
Bhika v Minister of Justice and another
1965 4 SA 399
(W) at 400G.
[16] It is common cause
that the stolen cables were confiscated by the police.
[17] The evidence given at
the trial indicated that a criminal prosecution was underway in
Johannesburg against Myberry, and that
the appellants would testify
for the state. It is not known what the result of the
prosecution was.
Some
remarks about the pleadings and
section 40
of the
Criminal Procedure
Act, no 51 of 1977
[18] As I already
indicated, the pleadings in both the cases are, for practical
purposes, identical.
[19] The first allegation
in respect of claim 1, the claim in respect of alleged unlawful
arrest, reads as follows:
"0p
2 Desember 2009 te Paragon Elektries, Pretoria-Noord is die eiser
sonder 'n lasbrief gearresteer deur die tweede verweerder
wie in
diens van die eerste verweerder is."
[20] The plea to this
paragraph 5 of the particulars of claim reads as follows:
"
Ad
paragraaf 5
:
3.1
Buiten om te ontken dat die eiser deur die tweede verweerder
gearresteer is word die balans van die beweringe erken.
3.2
Die eiser is gearresteer deur lede van die Suid-Afrikaanse
Polisiediens welke lede onder die bevel van kolonel Mati (
sic
)
was ten tye van die optrede.
3.3
Die eiser is gearresteer deur die lede in terme van artikel 40(1)(b)
van die Strafproseswet, Wet 51 van 1977, hierna genoem
'die Wet'
deurdat die arresterende lede op 'n redelike wyse vermoed het dat die
eiser 'n misdryf gemeld in skedule 1 tot die
Wet, te wete
diefstal gepleeg het.
3.4
In die alternatief, dat die arresterende lede die eiser gearresteer
het in terme van artikel 40(1)(a) van die Wet deurdat die
eiser in
besit gevind is van goedere wat redelike (
sic
) wys vermoed
gesteelde goedere is en waarvan hy nie 'n redelike verduideliking van
sy besit daarvan kon gee nie."
[21] To these paragraphs in
the plea, the following replication was filed by the appellants, as
plaintiffs:
"
Ad
paragraaf 3.1
:
Die
eiser pleit dat die arrestasie gedoen is deur die tweede verweerder
alternatiewelik deur konstabel Labuschagne wie in diens
van die
eerste verweerder is en in opdrag van onder andere die tweede
verweerder die arrestasie gedoen het.
Ad
paragraaf 3.3
:
2.1Die
geheel van die inhoud van hierdie paragraaf word ontken en die
verweerder word tot bewys daarvan geplaas. (In other
words, the
plea that Mathe effected the arrest is ignored.)
2.2
Die eiser pleit dat hy gearresteer is op aanklag van besit van
gesteelde eiendom.
2.3
Besit van gesteelde eiendom is nie 'n misdryf vermeld in bylae 1
van die Strafproseswet, Wet 51 van 1977 (hierna verwys
na 'die Wet')
nie.
2.4
Artikel 40(1)(b) van die Wet
supra
is derhalwe nie van
toepassing nie."
[22] In the very
comprehensive replication, it is also pleaded,
inter alia
,
that the respondents did not properly take into account the rights of
the appellants entrenched in paragraph 12 of the Constitution
(not to
be deprived of one's freedom arbitrarily or without just cause); that
they did not properly consider alternative methods
to ensure the
presence of the appellants in court; that they did not comply with
the requirements of Standing 0rder 341 of the
South African Police
Service (quoted earlier) and that they did not properly exercise
their discretion to effect the arrest.
[23] Turning to
section 40
of the
Criminal Procedure Act, it
is convenient to quote the sections
relevant for present purposes, namely
section 40(1)(a)
and (b):
15
0%">
"40(1) A
peace-officer may without warrant arrest any person –
(a)
who commits or attempts to commit any offence in his presence;
(b)
whom he reasonably suspects of having committed an offence referred
to in schedule 1, other than the offence of escaping from
lawful
custody."
[24] Included in the long
list of offences mentioned in schedule 1, are the following:
"Theft,
whether under the common law or a statutory provision.
Receiving
stolen property knowing it to have been stolen.
Any
offence ... the punishment wherefore may be a period of imprisonment
exceeding six months without the option of a fine."
With reference to the
last-mentioned "any offence" the following is stated in
Hiemstra's
Criminal Procedure
, loose leaf edition 33-24:
"The
offences contemplated by the words 'any offence ... the punishment
whereof may be a period of imprisonment exceeding six
months' which
appear in the twenty-second item, only include statutory offences
(
Areff v Minister van Polisie
1977 2 SA 900
(A))."
[25] It was argued by Mr
Bouwer for the appellants that, where the respondents pleaded that
they relied on the provisions of
section 40(1)(b)
"deurdat die
arresterende lede op 'n redelike wyse vermoed het dat die eiser 'n
misdryf gemeld in skedule 1 tot die Wet, te
wete diefstal gepleeg
het" and where the documentation,
supra
, suggests that
the "brief reasons for detention" are "possession of
suspected stolen property – copper cables"
in the case of
Harmse and "possession of stolen goods" in the case of
De Beer, the respondents have limited their
options and their
opportunity to rely on
section 40(1)(b)
because they pleaded a
reasonable suspicion of theft but their documents and their evidence
suggest a suspicion of possession of
stolen property which, according
to Mr Bouwer's argument, is not listed as one of the schedule 1
offences.
Mr Wessels, in countering
this argument, invited my attention to the provisions of
section
264(1)
of the
Criminal Procedure Act, which
reads as follows:
"
Theft
264(1)
If the evidence on a charge of theft does not prove the offence of
theft, but –
(a)
the offence of receiving stolen property knowing it to have been
stolen (my note: this is also a schedule 1 offence);
(b)
an offence under section 36 or 37 of the General Law Amendment Act,
1955 (Act 62 of 1955); or
(c)
an offence under section 1 of the General Law Amendment Act 1956 (Act
50 of 1956);
(d)
...
the
accused may be found guilty of the offence so proved."
[26] Mr Wessels argued, if
I understood him correctly, that the plea of a reasonable suspicion
of theft as a schedule 1 offence
is wide enough to cover the other
theft related offences in the spirit of section 264. I agree.
In any event, the "twenty second
item",
supra
,
contained in schedule 1, dealing with any offence the punishment
wherefore may be a period of imprisonment exceeding six months
without the option of a fine (which, in this particular instance,
would surely be the case) which, according to
Hiemstra
,
supra
,
includes only statutory offences, would, in my view, cover a
contravention (or, for present purposes, a reasonable suspicion of
such contravention by Colonel Mathe) of section 36 and/or section 37
of the General Law Amendment Act 62 of 1955 dealing with the
possession or receipt of stolen property (the latter offence being
specifically included in schedule 1).
[27] In a leading case on
the subject of unlawful arrest,
Minister of Safety and Security v
Sekhoto
2011[1] SACR 315 (SCA) at 320h-321b the following is
said:
"As
was held in
Duncan v Minister of Law and 0rder
(1986 2 SA 805
(A) at 818G H), the jurisdictional facts for a section 40(1)(b)
defence are that
(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."
[28] In all the
circumstances, and for the reasons mentioned, I am of the view that
these jurisdictional facts were present when
the appellants were
arrested so that the section 40(1)(b) defence raised in the plea
falls to be upheld. For the same reasons,
I am of the view that
the respondents discharged the
onus
resting upon them to prove
that the arrest and subsequent detention of the appellants was lawful
– as to this
onus
, see Amler's
Precedents of
Pleadings
by Harms
, 7
th
ed p46 and the
authorities there quoted.
[29] I am not persuaded
that there is any merit in the alternative defence raised by the
respondents, based on the provisions of
section 40(1)(a), namely that
a peace-officer may without warrant arrest any person who "commits
or attempts to commit any
offence in his presence". I am
of the view that it is not for this court of appeal to pronounce upon
whether or not
an offence was being committed in the presence of the
police in the circumstances of this particular case.
Some conclusionary
remarks
[30] During the trial, and
also in their replication, the appellants relied on an argument that
the police were obliged to consider
whether there were no less
invasive options to bring the suspects before the court than
immediate detention of the persons concerned
(the appellants).
In
Sekhoto, supra
, this alleged requirement or jurisdictional
fact was described as the "fifth jurisdictional fact" but
found by the learned
Judge of Appeal not to exist for purposes of a
section 40(1)(b) defence – see
Sekhoto
at 325e f.
[31] In
Sekhoto
, at
327b c it was pointed out that once the jurisdictional facts for
an arrest, whether in terms of any paragraph of section
40(1) or in
terms of section 40(3), are present, a discretion arises. In
other words, once the required jurisdictional facts
are present the
discretion whether or not to arrest arises. The officer (as
acknowledged by Colonel Mathe in his evidence) is not
obliged to
effect an arrest.
In this regard, the
following is said in
Sekhoto
at 330d-f:
"[39]
This would mean that peace-officers are entitled to exercise their
discretion as they see fit, provided that they stay
within the bounds
of rationality. The standard is not breached because an officer
exercises the discretion in a manner other
than that deemed optimal
by the court. A number of choices may be open to him, all
of which may fall within the range
of rationality. The standard
is not perfection or even the optimum, judged from the vantage of
hind-sight – so long
as the discretion is exercised within this
range, the standard is not breached."
[32] At 331h-332b the
following is also said by the learned Deputy President:
"Whether
his decision on that question is rational naturally depends upon the
particular facts, but it is clear that in cases
of serious crime –
and those listed in schedule 1 are serious, not only because the
legislature thought so – a peace-officer
could seldom be
criticised for arresting a suspect for that purpose. 0n the
other hand, there will be cases, particularly
where the suspected
offence is relatively trivial, where the circumstances are such that
it would clearly be irrational to arrest."
In this case, the crime in
question is clearly a serious one. Cable theft has become a scourge
throughout the country. A large quantity
of stolen cables is
involved.
[33] In this case, the
appellants, in their pleadings, attacked the manner in which the
arresting officer exercised his discretion
to order the arrest. In
Sekhoto
, at 333a-b the following is said:
"A
party who alleges that a constitutional right has been infringed
bears the
onus
. The general rule is also that a party
who attacks the exercise of discretion, where the jurisdictional
facts are present,
bears the
onus
of proof. This is the
position whether or not the right to freedom is compromised.
For instance, someone who wishes
to attack an adverse parole decision
bears the
onus
of showing that the exercise of discretion was
unlawful. The same would apply when the refusal of a presidential
pardon is in issue."
In this case, for all the
reasons mentioned, I am not persuaded that the appellants managed to
discharge this
onus
. For this reason alone, it seems to me
that the appeal cannot be upheld.
[34] Another issue, but
related to this last-mentioned aspect, seems to me to also militate
against the success of the appeal. It
is this: as appears from the
brief analysis,
supra
, of the pleadings, the appellants, as
plaintiffs, alleged that Manganye was the arresting officer. As
also described, the
respondents, in 3.1 and 3.2 of the plea, denied
that Manganye was the arresting officer and pleaded that it was
Mathe. In reply,
the appellants persisted with their allegation that
Manganye made the arrest and, in the alternative that it was done by
Labuschagne.
It is clear, from the
analysis of the evidence, that Mathe was the arresting officer.
Labuschagne effected the physical arrest
on the instruction of
Mathe. In terms of the authorities quoted, the question is
whether Mathe had properly exercised his
discretion. The
evidence of Manganye that he had nothing to do with the ordering of
the arrest was undisputed during the
trial. It does not appear
as if the pleadings were ever amended to cover this evidence.
The learned magistrate
formulated his judgment on the basis of the allegation that Manganye
was the arresting officer. He said the
following in his "reasons
for judgment":
"I
cannot find that the second defendant acted with malice and it cannot
be said that the second defendant acted without reasonable
and
probable cause."
The second defendant was
Manganye. Mathe does not feature at all in this judgment.
It is clear from the evidence that
Manganye did nothing whatsoever to
render the arrest unlawful, so that, to that extent, the judgement is
unassailable and cannot
be upset on appeal.
The costs
[35] It seems to me that
there is no reason why the normal rule should not apply, namely that
the costs should follow the result
of the appeal. I have
already dealt with the rule 41 application launched by the
respondents.
The order
[36] I make the following
order:
(1) The appeal is
dismissed.
(2) The appellants,
jointly and severally, are ordered to pay the costs.
W R C PRINSLOO
JUDGE OF THE NORTH
GAUTENG DIVISION, PRETORIA
A409-2013
I agree
T A MAUMELA
JUDGE OF THE NORTH
GAUTENG DIVISION, PRETORIA
HEARD ON: 25 FEBRUARY 2014
FOR THE APPELLANTS: M
BOUWER
INSTRUCTED BY: DE JAGER
ATTORNEYS
FOR THE RESPONDENTS: J K
WESSELS
INSTRUCTED BY: STATE
ATTORNEY