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[2014] ZAGPPHC 498
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D.J v Minister of Safety and Security (A35/2013) [2014] ZAGPPHC 498 (28 May 2014)
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Case Number:
A35/2013
Date: 28 May 2014
Not reportable
In the matter of
D[...]
J[...]
..............................................................................................................................................
Appellant
and
MINISTER OF
SAFETY AND
SECURITY
.................................................................................
Respondent
JUDGMENT
BAM J
1. The appellant
appealed to a full court of this division against the judgment of
Tuchten J, delivered on 6 September 2012, dismissing
the appellant's
claim for damages based on alleged unlawful arrest and detention.
Leave to appeal was granted by the trial court.
2.
The appellant issued summons against the respondent claiming damages
in the amount of R1 530M for his alleged unlawful arrest
and
detention for a period of 34 days. In the appellant's particulars of
claim it was simply averred that the
"arres
en gevolglike aanhouding was onregmatig".
To
this the respondent, in its amended plea, pleaded that the appellant
was lawfully arrested on a charge of rape and subsequently
detained
at a police station, and that his detention after his appearance in
court was authorized by that court.
3. Neither party
filed any request for particulars in preparation for trial. However,
at a pre-trial conference held on 6 May 2011,
the following questions
were put by the appellant and answered by the respondent:
(i)
"
Does the
defendant admit that the arrest of the plaintiff took place on 23
March 2008?"
Answer:
"Yes".
(ii)
"Does
the defendant admit that the plaintiff was brought before court for
the first time after arrest on 11
th
April 2008?"
Answer:
“
No.
Plaintiff's first court appearance was on 25 March 2008, as per item
3 of List A of Plaintiff's Discovery Affidavit."
(iii)
"Does the
defendant admit that the plaintiff was detained for a period of 34
days?
Answer:
"No, 33 days
from arrest until bail was granted."
4. The following
relevant aspects were also agreed upon during the pre-trial:
(i) That the
defendant accepted the onus to begin;
(ii)
Regarding the
"quantum
and the balance of the merits",
the
onus was on the plaintiff;
(iii)
The bundle of documents compiled to be used at the trial was agreed
upon to be what they purported to be and that they "
may
be used without further proof unless any party objects to the use of
a specific document. The contents of the documents remain
in
dispute".
5. The facts that
were common cause were the following:
(i) On 22 March 2008
a complaint of rape of a retarded female child was laid against the
appellant at the Makopane Police Station;
(ii) Consequently,
on 23 March 2008 the appellant was arrested by Constable Swart of the
South African Police Force on a charge
of rape;
(iii) The arrest was
effected without a warrant;
(iv) Subsequent to
his arrest the appellant was locked up at the Mokopane Police
Station;
(v) At his court
appearance on 25 April 2008 the appellant was granted bail in the
amount of R500 and subsequently released from
custody.
6. At the inception
of the trial, Mr Smit, appearing for the appellant, informed the
court that what remained in dispute was whether
the appellant was
lawfully arrested and for what period he was incarcerated before he
appeared in court. It was further submitted
by Mr Smit that the
defendant would have to prove the reason for the arrest and that the
appellant was brought before the court
within 48 hours.
7. Counsel for the
defendant, Mr Ncongwane, in his address to the trial court, prior to
calling his first witness, confirmed that
the appellant was arrested
on 23 March 2008, and stated, with reference to the bundle of
documents, that the appellant was brought
before court on 25 March
2008. An amendment of the respondent's plea, which was not opposed,
was then sought and granted. The amendment
turned upon the subsequent
detention of the appellant after his appearance in court, referred to
in paragraph 2 above.
8.
The arresting officer, Sergeant Swart, (at the time of arrest he had
the rank of constable), testified that on 22 March 2008
he received
information of a reported rape case in respect of a retarded female
child,
(“M").
He
subsequently interviewed the mother of M, to whom I will refer to as
"
Ms S".
M
at the time was not yet 14. Ms S personally related to him that it
was reported to her by one of her other children,
("MS"),
that
the appellant, Ms S's brother in law, and M, whilst involved in a
game with other children, were found in a bathroom on the
premises.
The appellant and the children were playing hide and seek when the
appellant and M apparently decided to hide in the
bathroom. The other
children became concerned and started looking for the two of them and
eventually found them in the bathroom
behind a closed door. MS, who
reported the incident to Ms S, apparently suspecting a suspicious
activity between M and the appellant,
returned to the bathroom and
found a substance on the floor to which he referred as semen. It was
then suspected that the appellant
had raped M. When the appellant was
confronted by Ms S with the allegations, he responded by saying:
"Are
you taking the child's word against mine".
The
appellant then left the premises. According to the medical
examination of M, recorded on the standard
"J88"
form,
conducted that same night at 01h30, it was found that M did have
bruises to her private parts, the
labio
minora,
and
that:
"Forceful
penetration cannot be ruled out."
The
contents of the J88, as well as the affidavit made by Ms S the
previous day, were perused by Sergeant Swart the morning of 23
March.
During cross examination by Mr Smit, the contents of Ms S's affidavit
were read out by Sergeant Swart. The following facts,
additional to
the facts already mentioned by Sergeant Swart, were then recorded:
(i) MS, at the
toilet, overheard the appellant telling M to put her hands on the
toilet:
(ii) MS discovered
that the door to the toilet was locked;
(iii) MS knocked on
the door and the appellant opened;
(iv)
MS asked M what has happened. M replied it was
"nothing
but girl stuff."
(v) When M was
confronted by Ms S, she started crying and told Ms S that the
appellant had ordered her to pull down her pants and
panties, to put
her hands on the toilet and to bend over. M was however not prepared
to tell the whole story;
(vi)
Ms S also saw the "
whitish
stuff"
on
the floor, MS had told her about;
9.
Sergeant Swart testified that according to the information received
they, the police, considered it to be rape. He further stated
that he
could not say on the information received that it was in fact rape,
but there was a reasonable suspicion that rape was
committed
Consequently, later the same day, 23 March 2008, the appellant was
arrested on a charge of rape. The appellant, when
confronted by
Sergeant Swart, stated that there was a fight the previous day, that
he was aware of the allegation against him and
that he was also
informed that a charge had been laid. When the sergeant asked the
appellant what he
"thought"
about
it, the appellant did not say anything to persuade the sergeant that
the suspected rape did not occur.
10.
In his evidence Sergeant Swart also identified a copy of the relevant
police docket that formed part of the bundle of documents
before the
court. The sergeant also identified a copy of the court record of the
Sexual Offence Court, Mokerong, (Exhibit
A,
page
72 of the record) reflecting, on the face of it, that on 25 March
2008 the accused was present in court, and that the case
was
postponed to 11 April 2008. Although Sergeant Swart testified that he
was familiar with court records, he was not personally
involved when
the appellant attended court or when bail was granted. It was pointed
out to the court by Mr Smit that Sergeant Swart
could not testify
about something he did not know about.
11. Sergeant
Swart was aware of the fact that the prosecutor later declined to
prosecute the appellant. He was however not
aware of the reasons.
12.
Section 40(l)(b)
of the
Criminal Procedure Act, No 51 of 1977
,
"CPA",
upon
which the respondent relied for the justification of the appellant's
arrest, provides that a peace officer, may, without a
warrant, arrest
any person whom he reasonably suspects of having committed an offence
mentioned in Schedule 1 of the CPA. It was
common cause that Sergeant
Swart was a peace officer and that rape is a Schedule 1 offence.
13.
Every case has to be considered on its own facts. It is further trite
that the test to be applied in order to determine whether
there was
in fact reasonable suspicion justifying arrest without a warrant, is
objective, and, therefore that the arresting officer
must have had
reasonable grounds for the suspicion. See
Duncan
v Minister of Law and Order
1986(2)
SA 805 (A) at 818F-H.
14. The evidence of
the appellant, save his denial of having committed the crime, and
what he conveyed to Sergeant Swart at the
time of his arrest, in my
view, is not relevant pertaining to the question whether a reasonable
suspicion existed justifying his
arrest. Accordingly the appellant's
evidence in court in regards to the incident should not be taken into
account.
15. In terms of the
provisions of section 5 of The Criminal Law (Sexual Offences and
Related Matters) Act, Nr. 32 of 2007, that
came into operation on 16
December 2007, a child under the age of 16 cannot legally consent to
sexual intercourse, and what is
more, that, in terms of section 57 of
that Act, a mentally disabled person is incapable to consent to a
sexual act. Sexual intercourse
with the child, or an attempt thereto,
was clearly unlawful.
16. It was common
cause that the appellant is a family member of M. It is therefore
assumed that he knew that M was under the age
of 16 and mentally
retarded. This was obviously also within the knowledge of Sergeant
Swart at the time of the appellant's arrest.
17. It was not in
dispute that Sergeant Swart had the relevant information at his
disposal. What was really challenged on appeal
was the finding of the
trial court that the said information justified a conclusion that a
reasonable suspicion existed justifying
the arrest of the appellant
without a warrant, as envisaged by section 40(l)(b) of the CPA.
18. Accordingly, in
my view, because of the fact that the test to be applied whether the
information taken into account by the arresting
officer justifying
arrest without a warrant is objective, and that the information must
have been within the knowledge of the arresting
officer prior to the
arrest, no information obtained subsequent to the arrest can be, or
could have been, considered.
19. Accordingly,
when the relevant information within the knowledge of Sergeant Swart
is objectively considered, in my view there
cannot be any doubt,
whatsoever, that a reasonable suspicion indeed existed that the
appellant raped M. The sergeant was entitled
to consider all the
information, even based on hearsay, and did not have to be convinced
that there was in fact evidence proving
the guilt of the arrestee
beyond reasonable doubt. The latter issue was for the prosecutor, and
perhaps later for a trial court,
to decide about. There is no doubt
that Sergeant Swart, in arresting the appellant had the intention to
bring him before a court
of law.
20. The appellant's
contention that the arrest was unlawful was evidently without
substance. It follows that the arrest of the appellant
was lawfully
effected in terms of the provisions of section 40(l)(b) of the CPA
and that the learned trial judge's conclusion in
that regard cannot
be faulted.
21. The effect of
the lawful arrest of the appellant was that his arrest and subsequent
detention remained lawful, subject however
to compliance with the
provisions of section 50(l)(c)(ii) of the CPA. The latter section
provides that an arrested person shall
be brought before a court of
law within 48 hours of his arrest.
22. The remaining
issue on appeal raised on behalf of the appellant, namely whether the
appellant's contention that he was unlawfully
incarcerated because he
was not brought before a court of law within 48 hours after his
arrest, as provided for in section 50(l)(b)
of the CPA, as a ground
of appeal, needs to be considered.
23. In this respect
the following aspects seem to be relevant:
(i) The appellant's
particulars of claim simply allege unlawful arrest and detention for
34 days. No mention is made that the appellant
was not brought before
a court of law within the prescribed 48 hours;
(ii) The question
put to the respondent's representatives during the pre-trial
conference, pertaining to the issue whether the respondent
admitted
that the appellant was not brought before court before 9 April 2008,
was met with a negative response, namely that the
appellant was
brought before court on 25 March 2008, apparently with reference to
the applicable copy of the police docket and
a copy of the court
record;
(iii) At the
inception of the trial the appellant's legal representative stated
that the respondent bore the onus that the appellant
was brought
before court within the prescribed 48 hours;
(iv) When Sergeant
Swart identified the court register of 25 March 2008 (Exh A), the
correctness of the contents of the court record
were not challenged,
although, as alluded to above, it was pointed out by the appellant's
legal representative that Sergeant Swart
did not have personal
knowledge of the contents of the document;
(v) No evidence was
adduced by the respondent pertaining to the veracity of the contents
of the relevant court records;
(vi) The appellant
in his evidence before the trial court admitted that he was taken to
court on 25 March 2008, but stated that
he was returned to the police
station without having appeared before the magistrate. This evidence
was not challenged during cross-examination;
(vii) In argument
before this Court, Mr Smit contended that the Mokerong court record
reflecting the appellant's appearance on 25
March 2008 (Exh A), was a
forged document, forged by the magistrate who signed it.
24. In its judgment,
paragraphs 29-33, the trial court ruled that the appellant's evidence
that he did not appear before the court
on 25 March 2008 was
accepted. In this regard the trial court also referred to the
contents of the appellant's letter of demand
directed to the National
Commissioner of the SAPS as well as the reference made to the issue
in the pre-trial minute and the opening
address of Mr Smit. However,
as a result of the appellant's claim based on the allegation that he
was not brought before court
within the prescribed 48 hours, not
particularized in the particulars of claim, the learned judge
dismissed that part of the action.
25.
In my view the appellant was obliged, as found by the trial court, to
address the issue of the unlawful detention based on the
failure to
have the appellant brought before a magistrate, as contemplated by
section 50(l)(c) of the CPA, in his particulars of
claim. The
appellant's particulars of claim however based the unlawfulness of
the detention of 34 days solely on the alleged unlawful
arrest. It
follows that if the arrest was in fact lawful, as is the case here,
the detention,
perse,
cannot
be unlawful. The allegation that the appellant was not brought before
court within 48 hours after the (lawful) arrest is
a totally separate
and new cause of action. It suffices to say that litigants are bound
by the Rules, specifically in regards to
what should be averred and
canvassed in the pleadings. The cardinal Rule is that a party is
bound by what is addressed in the pleadings.
A defendant is entitled
to be informed of what the plaintiff's case is, without the need to
read between the lines or to contemplate,
or speculate about, any
possible alternatives to the initial cause of action. That is
precisely the purpose of pleadings.
26.
The appellant's contention that the parties
"agreed",
at
the pre-trial conference, that the
"48
hours issue"
was
part of the appellant's case, is not substantiated by what was
recorded at the pre-trial. As alluded to above, the question
posed by
the appellant in that regard was met with a complete denial, with
reference to the contents of the court register of 25
March 2008. It
could therefore not have been accepted by the appellant that the
issue in question became part of its case as
"agreed".
27. The fact that
the appellant's legal representative mentioned in his opening address
that the respondent bore the onus to prove
that the appellant was
brought before the court within 48 hours of his arrest, was of no
avail to the appellant. It clearly did
not amend the particulars of
claim. In my view the issue could, and should, have been rectified by
an application to amend the
particulars of claim. That did not
happen.
28. It follows that
I am in respectful agreement with the judgment of Tuchten J to
dismiss the appellant's claim based on wrongful
arrest and detention.
29.
Although the trial court allowed the appellant to testify about the
“
48 hours
issue",
it
appears, in my view, that an objection to the evidence of the
appellant in that regard, on the basis that it was irrelevant to
the
merits because it fell outside the issues canvassed in the pleadings,
could have been upheld by the trial court.
30. In regards to
the issue of whether the appellant was brought before a court of law
within the prescribed 48 hours in terms of
section 51(l)(c) of the
CPA, the trial court found that the appellant's version stood
un-contradicted and that the appellant's
case was not remanded in
court.
31. The appellant's
ground of appeal in this regard entails that the trial judge erred in
not finding that the appellant was wrongfully
incarcerated in that he
was not brought before a court of law within the prescribed 48 hours.
It was submitted by Mr Smit that
the trial court should at least have
found that the appellant was therefore wrongfully incarcerated until
he appeared before the
court on 11 April 2008. Accordingly, so it was
argued by Mr Smit, the respondent should be held liable for the
wrongful detention
of the appellant from the day of his arrest until
the 11 April 2008.
32. The trial judge
however found, with which finding I agree, as alluded to above, that
it was not the appellant's case in his
pleadings that he was in that
respect wrongfully detained.
33. However,
although I have expressed my agreement with the trial court's
dismissal of the appellant's claim, I find myself unable
to agree
with that court's founding that the appellant did not appear before
the court on 25 March 2008.
34. In this regard
it seems to me that the following evidence and evidential material
have to be taken into account.
(i) It was agreed by
the parties during the pre-trial conference that the documents in
question could be used without further proof
unless any party would
object to the use of a specific document, although the contents of
the documents remained in dispute.
(ii) During the
evidence of Sergeant Swart, respondent's counsel, in leading the
evidence, referred to the copy of the first page
of the police docket
concerning the charge against the appellant. The docket reflected
that the matter was postponed to 11 April
2008 for further
investigation. The document was identified by Sergeant Swart.
(iii) Secondly
Sergeant Swart identified a copy of the court record of the Mokerong
Court, reflecting the name of the appellant
and the date of 25 March
2008 when the appellant appeared before the court and asked for legal
representation. At that point Mr
Smit remarked that the sergeant was
testifying about something he did not know about. From this remark of
Mr Smit it must be inferred
that he raised the issue that the
evidence Sergeant Swart was hearsay. The trial judge interposed and
stated that all Sergeant
Swart could say in that regard was that the
document appeared like the normal document emanating from that court.
That was confirmed
by Sergeant Swart.
(iv) The said court
record of the Mokerong Court (Appeal record, Exhibit A, page 72)
reflected the following: The name of the appellant
as the accused;
that on 25 March 2008, the appellant in person appeared before
magistrate MV Semenya; that his rights to legal
representation were
explained; that he elected to apply for legal aid; that Ms Makgato
would represent the appellant; that the
matter was remanded to
11/4/2008 for completion of investigation; and, that the appellant
was in police custody. The document was
signed by magistrate Semenya.
(v) It was common
cause that on 11 April 2008 the appellant indeed appeared before the
said court. Although no copy of a warrant
for the detention of the
appellant from 25 March 2008 until 11 February 2008 was filed as
exhibit, it can be assumed, on the probabilities,
that such a warrant
was indeed issued and signed by the magistrate, authorising the
police station at Mokopane to keep the appellant
in custody and to
return him to court on the 11 April 2008. It is, in my view, logical
that the police would not have kept the
appellant in custody merely
on the strength of the entry on the police docket that the
appellant's next appearance would be on
11 April 2008.
(vi) Pages 73 and
75, reflecting court records of the same court, respectively for 11
April and 25 April 2008, as conceded by Mr
Smit during argument,
correctly reflected what it purports to be on the face of the
documents. It was common cause that the appellant,
on the said two
dates, indeed appeared before the same magistrate, Ms Semenya, whose
name appears on the court record of 25 March
2008.
(vii)
The appellant testified that on 25 March 2008 he was informed by the
police that he had to go to court and that he was in
fact taken to
court. At first the police took him to the wrong court, but he was
subsequently taken to the Mahwelereng court where
he was kept in the
holding cells. The time was between 14h00 and 15h00. A policeman then
called him from the holding cells and
told him that he should enter
the court. He told the court that he had been waiting at the
staircase leading to the courtroom for
half an hour. In that time he
was asked by an attorney whether he would require an attorney to
represent him. To that he responded
that he was looking for an
attorney. Subsequently the policeman in command was informed by a
"
prokureurtjie"
from
Legal Aid to return him to the holding cells from where he was taken
back to the police station. The appellant denied that
he appeared in
court on that day.
(viii) Although the
appellant testified that he complained to a police at the police
station that he did not appear in court, it
does not appear from the
papers, or the evidence, that the appellant complained to anybody
else, including the magistrate before
whom he appeared on 11 April
2008 as well as the attorney who represented him on that day, that he
did not appear in court on 25
March 2008, despite the fact that he
was allegedly abused and assaulted at the police cells before he
appeared in court on 11 April
2008.
(ix) The appellant
testified that on 11 April 2008 and on 25 April 2008 he was again
taken to the Mahwelereng court. On these occasions
he however did
appear before the magistrate when the case was postponed. On the 25
April 2008 bail was granted to him.
(x) The appellant's
version that he did not appear in court on 25 March 2008 was
challenged during cross-examination by Mr Ncongwane,
with reference
to the court register of 25 April 2008.
(xi) No further
evidence was adduced by the respondent in regards to the veracity or
the probative value of the court register in
question.
(xii) In argument Mr
Smit contended that the magistrate forged the court record of 25
March 2008.
35. In view of the
agreement reached between the parties during the pre-trial conference
and the evidence of Sergeant Swart identifying
the cover page of the
relevant police docket, and the court register of 25 March 2008,
these documents were already before the
court as evidentiary
material. What remained was the question what weight was to be
attached to the documents.
36. The probative
value, or evidential weight, of the photo copy of the court register
of 25 March 2008, turns upon the following:
(i) By definition a
court register is an official document;
(ii)
In terms of the provisions of section 19 of the Civil Proceedings
Evidence Act, 25 of 1965,
("CPE
Act"),
a
certified copy of such document shall be admissible in evidence and
be of the same force and effect as the original document;
(iii)
Although the court register in question was not a certified copy,
section 19 of the CPE Act clearly provides that secondary
evidence in
regards to the court record in question is admissible. In this matter
secondary evidence would include a photocopy
of the original court
record, that was indeed before the court. In
Transnet
v Newlyn Investments
2011
(5) SA 543
SCA, at 551B to E, the following was stated:
"Once
secondary evidence is admissible, there are no degrees of secondary
evidence, ie the common law no longer requires that
the best
secondary evidence has to be produced."
(and)
"Of course,
production of a photocopy would be more reliable than oral evidence
as to the contents of a document, but that
goes to weight, not
admissibility;"
(iv)
Section 6 of the CPE Act provides that a document purporting to bear
the signature holding a public office and bearing the
seal or stamp
of office to which such person is attached, on the mere production
thereof, be
prima
facie
proof
that such person signed such document. In this case the document in
question bore the official stamp of office and was signed
by
Magistrate Semenya, who also signed the court registers of 11 April
2008 and 25 April 2008.
37. It follows, in
my view, although the documents in question were not certified true
copies of the original, that it was in fact
admissible evidential
material before the court.
38. When the
probabilities are considered, it is in my view highly unlikely that
the magistrate, who signed the court record of
25 March 2008, as well
as the records of the 11 April 2008 and the 25 March 2008, would have
forged the document of 25 March 2008,
as contended by Mr Smit.
The appellant's
version that he was taken to court, kept in the holding cell and
called to go to court, but at the stairway leading
to the court, told
by an attorney to return to the holding cells, especially in view of
the specific nature of the entries made
by the magistrate on the
document in question, is totally improbable. This would mean that the
attorney, the magistrate and the
prosecutor conspired, for an unknown
reason, not to allow the appellant to appear before court, but
instead to commit fraud. It
must also be taken into account that a
warrant for the appellant's further detention in the police cells
until the 11 April 2008,
which had to be signed by the magistrate,
was, on the probabilities issued. This warrant, on the appellant's
version would have
been, by implication, another fraudulent act
committed by the magistrate. These implications concerning fraudulent
conduct by independent
court personnel, to say the least, are without
substance.
39. On the
appellant's version he was in fact taken to court by members of the
SAPD tasked to do so. What is further remarkable
is that on 25 March
2008 the police took the trouble to take the appellant from the first
court in Makopane to the court in Mahwelereng,
dealing with sexual
offences, clearly for the purpose to have the appellant remanded by
the court, but then allowed the appellant
to return without appearing
before court.
40. It follows, in
my view, that the probabilities favour the finding that the appellant
indeed appeared before the magistrate on
25 March 2008, consistent
with the entries on the court register. The probabilities obviously
militate against the appellant's
version in that regard.
41. Taking into
account what the appellant's version was, it is in my opinion clear
that he should have included in his particulars
of claim the
averments pertaining to his non-appearence in court on the 25 March
2008, and to, in that regard, have instituted
action against the
Minister of Justice and Constitutional Development. The question
whether the appellant would have succeeded
in quantifying his damages
in the circumstances of the matter, especially in view of the fact
that he was lawfully arrested, is
presently a matter of conjecture.
42. Accordingly I
suggest that the appellant's appeal cannot succeed and that the
following order be made:
The appeal is
dismissed with costs.
A J BAM
JUDGE OF THE HIGH
COURT
6 May 2014
I agree,
E M KUBUSHI
JUDGE OF THE HlGH
COURT
I agree, and it is
so ordered.
L M
MOLOPA-SETHOSA
JUDGE OF THE HIGH
COURT
For the appellant:
MR E SMIT
For the respondent:
ADV M NCONGWANE