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[2014] ZAGPPHC 157
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Shanika and Another v Minister of Police (26864/2009) [2014] ZAGPPHC 157 (2 April 2014)
REPUBLIC OF SOUTH
AFRICA
GAUTENG DIVISION
OF THE HIGH COURT, PRETORIA
CASE
NO: 26864/2009
DATE:
02 APRIL 2014
In the matter
between:
PASTOR JEREMIA
SHANIKA
...............................................................
1st
Plaintiff
GAMEDZE
INVESTMENT CORPORATION CC
..............................
2nd
Plaintiff
And
MINISTER OF
POLICE
........................................................................
Defendant
J U
D G M E N T
KGANYAGO AJ
[1] The plaintiffs
have instituted an action for damages against the defendant arising
out of an incident which happened on 15 August
2008.
[2] The first
plaintiff alleges that he was wrongfully and unlawfully arrested by
the members of the South African Police Service
who were acting
within the course and scope of their employment. He further alleges
that he was arrested without a warrant and
detained for 10 days. The
plaintiffs further alleges that as a result of the wrongful and
unlawful conduct of the members of the
South African Police Service,
they suffered damages for pain and suffering, loss of business
opportunities, loss of profit, deprivation
of freedom and discomfort
and also contumelia.
[3] The first
plaintiff claims in his personal capacity and also in the
representative capacity as a member of the second plaintiff.
[4] The action is
defendant. The defendant denies that the first plaintiff was
wrongfully and unlawfully arrested. The defendant
aver that the
plaintiff was arrested by members of the South African Police Service
in terms of
section 40
of the
Criminal Procedure Act 51 of 1977
as
they believed that the first Plaintiff has committed an offence
listed in schedule I of the Act. In their view, the members
of the
South African Police Service were justified in arresting the first
plaintiff without a warrant.
[5] The parties
agreed that the defendant bore the onus to show that the arrest was
justifiable and lawful.
[6] Mr Pather
testified on behalf of the defendant. He testified he is the one who
had arrested the first plaintiff on 15 August
2008. The first
plaintiff was arrested on allegations fraud after the complainant has
opened a charge against him. He was taken
to the first plaintiff’s
business by the complainant.
[7] The first
plaintiff was identified by the complainant at his business. At the
office of the plaintiffs, there were other people
who were
complaining that the first plaintiff has defrauded them. He also
found that the first plaintiff was having a Namibian
passport.
[8] He did not have
a warrant to arrest the first plaintiff. Based on the complaint of
the people that he found at the first plaintiff’s
business and
also the fact that the first plaintiff was having a Namibian
passport, he came to the conclusion that the first plaintiff
might
abscond should he first obtain a warrant of arrest. He then arrested
the first plaintiff.
[9] The first
plaintiff was arrested on Friday 15 August 2008, and appeared in
court on Monday 18 August 2008. The first plaintiff
was facing a
schedule I offence, and it is only the magistrate who can release
him.
[10] The witness was
cross examined and he admitted that the first plaintiff has produced
an agreement which he had entered into
with the complainant, but his
conclusion was that the first plaintiff was rendering fraudulent
services. The witness further stated
that the case against the first
plaintiff was struck off the roll as he was unable to trace
witnesses.
[11] The first
plaintiff gave evidence on behalf of himself and the second
plaintiff. According to the first plaintiff, he is working
for the
second plaintiff as a para-legal. The service that he renders
relates to immigration issues and as insurance advisor.
[12] He was born in
Namibia and came to South Africa during 1989. He is having a dual
citizenship.
[13] On 15 August
2008 he was arrested by Mr Pather. Mr Pather has told him that he
owes one Mr Fernandez R66 000.00 and that if
he does not pay that
person, he is going to arrest him. He refused to pay and was
arrested.
[14] On the 16
February 2007 he had entered into an agreement with Mr Fernandez to
renter the services to him. His arrest was unlawful.
He had spent
10 days in the cells. The conditions in the cells were horrible.
[15] The first
plaintiff was cross examined and he stated that he is the sole
director of the second plaintiff. According to the
first plaintiff,
as he was having a contract with the complainant, the police should
have warned him to appear at court instead
of arresting him. He
admitted that the complainant in his statement to the police is
requesting that the matter be investigated.
[16] That is in
short the evidence that was adduced. It is common cause that the
first plaintiff was arrested on 15 August 2008.
He appeared in court
on 18 August 2008 and was remanded in custody. On the second
appearance in court he was released on bail.
The matter did not go
for trial but was struck off the roll as witnesses could not be
traced. The dispute in this matter is whether
the arrest of the
first plaintiff was lawful or not
[17] It is trite
that a person’s liberty, personality and dignity are usually
compromised by a wrongful or malicious arrest.
It is also trite that
in the absence of a warrant, an arrest is lawful if it is effected in
terms of
section 40
of the
Criminal Procedure Act 51 if
977 provided
that the person being arrested, is alleged to have committed a crime
listed in schedule 1 of the Act or of someone
who is on reasonable
grounds suspected of having committed such a crime.
[18] An arrest
interfere with an individual’s freedom of movement and dignity
and should only be the last resort as a means
of securing the suspect
attendance at court. Police officers are therefore obliged to
consider whether there are no less invasive
options to bring the
suspect before court than an immediate detention unless there is a
reasonable suspicion that the suspect will
abscond or fail to appear
in court if a warrant is first obtained for his/her arrest or a
notice of summons, then in that situation
the police officer can
exercise the power to arrest. See Minister of Safety and Security v
Van Niekerk 2008(1) SACR 56 (cc).
[19]
Section 40(i)
(b) of the Act permits an arrest by a police officer without a
warrant where the arrestor reasonably suspects the arrestee of having
committed an offence. In Ralekwa v Minister of Safety and Security
2004(2) SA 342 T at 347 E-G the Court said the following:-
“To decide
what is a reasonable suspicion there is is must be evidence that the
arresting officer formed a suspicion which
is objectively
sustainable. It was described thus by Jones J in Mabona and Another
v Minister of Law and Order and Others:-
‘Would a
reasonable man in the second defendant’s position and
possessed of the same information have considered that
there were
good and sufficient grounds for suspecting that the plaintiffs were
guilty of conspiracy to commit robbery or possession
of stolen
property knowing it to have been stolen? It seems to me that in
evaluating this information a reasonable man would bear
in mind that
the section authorizes drastic police action. It authorizes an
arrest on the strength of a suspicion and without
the need to swear
out a warrant, i.e. something which otherwise would be an invasion of
private rights and…. (t) he reasonable
man will therefore
analyse and assess the quality of 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.’
[19] Mr Pather
testified that the complainant, Mr Fernandez has opened an alleged
fraud case against the first plaintiff. It is
common cause that
fraud is a schedule I offence. The complainant is the one who
pointed out the first plaintiff to Mr Pather.
Mr Pather found that
the first plaintiff was having a dual citizenship. He was a South
African and also a Namibian. Mr Pather
also found other people
complaining about the first plaintiff. On interviewing the first
plaintiff he found that he was receiving
money from his clients but
not issuing them with receipts and that to him looked like a
syndicate. Mr Pather was not challenged
on this version. Based on
this information, he came to the conclusion that reasonable grounds
existed which warranted an arrest
without a warrant.
[20] The first
plaintiff testified and came up with a version which was never put to
Mr Pather. He conceded that he is having a
dual citizenship. It is
fair to say that the evidence of the first plaintiff was vague,
confusing and utterly unconvincing. The
first plaintiff was an
evasive witness and his evidence is not satisfactory. In my view the
first plaintiff is an untruthful witness.
[21] Mr Pather’s
evidence was clear and satisfactory. He did not contradict himself.
Despite the gruelling cross examination,
he was not shaken. In my
view he was a credible witness.
[22] The first
plaintiff was a suspect in a schedule 1 offence and is having a dual
citizenship. He was receiving money from clients
and not issuing
them with receipts. There were other people who were also
complaining about the first plaintiff.
[23] In my view Mr
Pather has acted reasonably and was justified to have formulated a
suspicion that should he first obtain a warrant,
the first plaintiff
was going to evade the arrest. The reasonable suspicion does not
mean that there is prima proof, as long as
the suspicion is based on
solid grounds. In my view, the information that was at the disposal
of Mr Pather, warranted him to formulate
a reasonable suspicion and
effect an immediate arrest, of which he did.
[24] Under the
circumstances, in my view, the arrest of the first plaintiff was
justified. The defendant has therefore succeeded
in discharging
their onus of prove and have proved that the arrest of the first
plaintiff was lawful.
[25] In the result I
make the following order:-
25.1 The claim of
the first and second plaintiffs is hereby dismissed with costs.
MF KGANYAGO
ACTING JUDGE OF
THE GAUTENG
HIGH COURT,
PRETORIA