About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2014
>>
[2014] ZAGPPHC 359
|
|
Cooper v Mbombela Local Municipality and Another (59120/2010) [2014] ZAGPPHC 359 (30 May 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE NO.
59120/2010
DATE: 30 May 2014
In the matter
between:
GARRY
COOPER
.........................................................................................................................
PLAINTIFF
AND
MBOMBELA LOCAL
MUNICIPALITY
..................................................................
FIRST
DEFENDANT
MINISTER OF
SAFETY AND
SECURITY
..........................................................
SECOND
DEFENDANT
JUDGEMENT
MASETI AJ
[1] This is a claim
for damages in which Plaintiff is suing both defendants for unlawful
arrest and detention.
[2] The plaintiff,
on 13 February 2010 at about 10H00 in the morning, was a passenger in
a motor vehicle which was driven by De
Oliviera, Plaintiff's
coworker, along N4 at Nelspruit in Mpumalanga.
2.1. Sergeant
Mogale, a traffic officer employed by the first defendant, was on
duty on the 13 February 2010 at about 10H00 monitoring
the speed
camera along N4 at Nelspruit in Mpumalanga.
2.2. Mogale, whilst
in the course of his duties, trapped a vehicle that was apparently
driving at 85 km per hour instead of the
permissible 60 km per hour.
It transpired that the plaintiff was a passenger in this particular
vehicle.
2.3. Mogale stopped
the vehicle and approached the driver thereof who admitted that he
exceeded the speed limit allowed in that
particular zone. The driver
of the said vehicle was apparently De Oliviera. At that stage
plaintiff intervened stating that they
were driving at 60 km per hour
and not 85 km per hour as alleged.
2.4. Mogale
requested De Oliviera to hand over his driver's licence so that he
could issue a ticket having informed him that
the ticket was R750-00.
At all this stage plaintiff kept on interfering that they were
driving at 60 km per hour though Mogale
ignored him and at a later
stage warned Plaintiff not to interfere otherwise he would arrest him
for interfering with his duties.
2.5. De Oliviera
drew out his driver's licence to hand it over to Mogale for the
processing of the ticket and whilst Mogale was
taking over the
driver's licence from the driver, the plaintiff grabbed the driver's
licence and kept it into his possession.
2.6. De Oliviera
took the licence from the plaintiff and handed it over to Mogale and
while Mogale was about to write the ticket
still holding the ticket
book, the plaintiff hurriedly got out of the vehicle and went to the
back of the van, opened the canopy
door appearing to be taking
something from the back of the vehicle; closed the canopy and
proceeded to the right hand side of the
vehicle towards Mogale.
2.7. Plaintiff
pointed fingers at Mogale using vulgar language and at that stage
Mogale warned the Plaintiff that he was then arresting
him.
2.8. Mogale obtained
handcuffs from Fikile Zwane his colleague with whom he was monitoring
the speed camera. Whilst attempting to
put his handcuffs on the
plaintiff's wrists, plaintiff refused and a struggle ensued. With the
assistance of Ms Zwane he ultimately
succeeded in handcuffing the
plaintiff.
2.9. During that
process of handcuffing and pushing the plaintiff into Mogale's
vehicle, Mogale's Supervisor, Mr Patrick Pule, arrived
and enquired
as to what was happening and got explanation from Mogale. Pule
further approached the plaintiff and introduced himself
to Plaintiff
as the Supervisor of Mr Mogale but Plaintiff said he had nothing to
do with Pule.
2.10. Mogale took
the plaintiff to the local police station where he was detained on 13
February 2010 and charged with defeating
the ends of Justice and
interference.
2.11. The plaintiff
was detained by the Second Defendant at the instance of Mogale from
11H45 on 13 February 2013 to 16H20 on 14
February 2010 whereupon he
was released on bail.
[3] The issue before
this Court is whether the arrest by the employee of the first
defendant and subsequent detention of the plaintiff
from 13 February
2013 at approximately 10H00 to 16H20 on 14 February 2013 by the
second defendant were unlawful or not.
[4] The issue
between the plaintiff and second defendant related to the period of
detention at the police station between the hours
of 11H00 on 13
February 2013 and 16H20 on the 14 February 2013.
[5] The parties
agreed that the onus of proving the lawfulness of the arrest rests
with the first defendant and the subsequent detention
of the
plaintiff rests with the second defendant.
[6] This case was
heard on 17 March 2014 and finalised on 19 March 2014 when the
judgment was reserved.
[7] Since the onus
was on the defendants to prove the lawfulness of the arrest the duty
to begin rested with the first defendant.
[8] The first
defendant contended that the arrest was justified for the following
reasons:
8.1. Plaintiff was
arrested pursuant to him committing an offence in the presence of the
peace officer, namely Veli Mogale.
8.2. The first
defendant further contended that the plaintiff wilfully obstructed
Mogale in the execution of his duties.
8.3. The first
defendant relied for its defence on two grounds to justify the
arrest. The aforesaid grounds of justification are
to be found in
Section 40
(l)(a) and (j) of the
Criminal Procedure Act 51 of 1977
.
Section 40
(1)
provides:
"A peace
officer may without warrant arrest any person-
(a) who commits or
attempts to commit any offence in his presence
(j) who wilfully
obstructs him in the execution of his duty."
[9] Plaintiff
insisted that his stay at the police station was not sanctioned by
law.
[10] The second
defendant submitted that this was fallacious reasoning on the
following grounds:
10.1. The effect of
an arrest is that the arrested person shall be in lawful custody and
detained in such custody until he is lawfully
discharged or released
and refers to
Section 39
(3) of the
Criminal Procedure Act 51 of
1977
.
Section 39
(3) of
the
Criminal Procedure Act 51 of 1977
provides:-
" The effect of
an arrest shall be that the person arrested shall be in lawful
Custody and that he shall be detained in custody
until he is lawfully
discharged or released from custody."
10.2. By reason of
the fact that
Section 50
of the
Criminal Procedure Act 51 of 1977
lays down the procedure to be followed after the arrest, the conduct
of the police at Nelspruit Police Station that of opening
cells to
accommodate the plaintiff during his detention was not wrongful. The
police were doing what the law commands them to do.
Indeed plaintiff was
released on bail on the following day once a determination was made
that the offence with which he had been
charged warranted admittance
to bail. He referred to the provisions of
Section 50
as a whole which
I need not re-write.
10.3.
The
second defendant relied on the provisions of
Section 50
of the
Criminal Procedure Act and
DUNCAN
VS MINISTER OF LAW AND ORDER
1986 (2) SA 805
(A) AT 820 C-E
in
which he submitted, the police were allowed to detain for questioning
and to release such detainees within 48 hours if no charges
were
preferred against them.
10.4.
The second defendant's Counsel further challenged an argument by the
plaintiff's Counsel that there was failure on the part
of the police
to exercise properly the discretion conferred on them by
Section 40
of the
Criminal Procedure Act in
which reference had been made to the
Supreme Court Judgment in Minister of
SAFETY
AND SECURITY VS SEKHOTHO
2011 (5) SA 367
saying
Sekhotho's case is distinguishable from the present case. In the
present case Plaintiff made no allegation in his particulars
of claim
impugning the exercise of the discretion conferred on the police by
Section 50
, whilst in the Sekhotho case the Supreme Court of Appeal
was dealing with the discretion which
Section 40
(1) (b) confers on a
peace officer.
10.5. The second
defendant submitted that for the Plaintiff to succeed against the
second defendant, Plaintiff should point out
a transgression by the
police of the provisions of
Section 50
failing which the second
defendant's employees had committed no wrong.
[11] The plaintiff
argued that
Section 40
(1) referred to powers of an arrest by a peace
offer. It was therefore for the first defendant to prove that
Mogale was indeed at
the time of the arrest a peace offer.
[12] The plaintiff
referred to
Section 334
of the
Criminal Procedure Act 51 of 1977
which makes provision for the Minister to declare certain persons
Peace Officers for specific purposes. He referred to
Section 334
(2)
(a) which stipulates that no person who is a peace officer by virtue
of a notice issued under subsection (1) shall exercise
any power
conferred upon him under that subsection unless he has at the time of
exercising such power been in possession of a certificate
of
appointment issued by his employer, which certificate shall be
produced on demand.
[13]
The plaintiff argued that no Certificate of Appointment was produced
in Court and therefore the Court is entitled to assume
that no
certificate of appointment existed. The court noted that at paragraph
4.2.2. of his plea the first defendant pleaded that
Mogale was a
peace officer and that there has been no request for further
particulars for the purposes of trial in terms of
Rule 21
(2) of the
Rules of this court.
[14] In his Heads of
Argument Plaintiffs Counsel sought to amend his particulars of
Plaintiff by introducing the exercise of a discretion
by Mogale in
the arrest of the plaintiff that Mogale was not objectively rational.
[15] Plaintiff
argued that he could apply for leave to amend Plaintiff's particulars
of claim at anytime before judgment. He further
stated that
particulars of claim were drafted and issued during 2010 when
judgment pertaining to the Minister of Safety and Security
Vs Sekoto
was not yet reported and that in the circumstances this court would
be empowered to effect the amendment in terms of
Rule 28
(10).
[16] Plaintiff
argued further that Mogale failed to properly exercise his discretion
alternatively failed to exercise his discretion
in good faith
rationally and not arbitrarily.
[17] The Court noted
that
Rule 28
provides:-
1.
"Any party desiring to amend a pleading or document other than a
sworn statement, filed in connection with any proceedings,
shall
notify all other
parties
of his intention to amend
and
shall furnish particulars of the amendment.
2.
The notice referred to in subrule (1) shall state that
unless
written objection
to
the proposed amendment is delivered within 10 days
of
delivery of the notice, amendment will be effected.
3.
The Court may, notwithstanding anything to the contrary in this rule,
at
any
stage
before judgment
grant
leave to amend any pleading or document on such terms as to costs or
other matters as it deems fit."
[18] This Court is
unable to allow the amendment brought through the Heads of Argument
as it failed to comply with
Rule 28
(1) and (2) above. Failure to
comply with
Rule 28
(1) and (2) undoubtedly prejudiced the first and
second defendants. This matter was heard on 17 March 2014 and
finalised on 19
March 2014 but judgment reserved. The Notice of
Intention to apply for leave to amend was only served and filed on 26
March 2014
whilst only waiting for the filing of Heads of Argument.
[19] The first
defendant called Mogale who testified to the effect that he was a
traffic officer during February 2010 employed by
the first defendant
and was a peace officer. He was on duty as a traffic officer
monitoring speed camera with his colleague, Fikile
Zwane, when they
stopped a motor vehicle driven by Mr Oliveira in which plaintiff was
a passenger.
[20] To avoid
repetition of what has already been said in paragraph 2 above the
Court will only analyse the evidence given by all
three witnesses
called by the first defendant to testify.
[21] Mogale gave a
clear evidence as to what happened on that day. There were some
omissions in his statement to the police compared
with his evidence
in Court and his evidence during the criminal trial where the
plaintiff was charged with defeating the ends of
justice. There were
totally no contradictions in his evidence in chief and cross
examination by the plaintiff. He gave a very consistent
version. His
version was also corroborated by the second and third witnesses for
the first defendant namely PULE and ZWANE.
[22] When the
plaintiff testified he denied that Pule was at the scene. He
testified that De Oliveira and himself were driving on
their way from
Maputo towards Kimberley and when stopped by Mogale, De Oliveira
disputed that he was travelling at 85 km per hour.
The plaintiff said
he told Mogale to take De Oliveira to view the speed camera and
Mogale told him to shut up otherwise he would
arrest him or that he
would open a case for interference. Mogale asked De Oliveira how much
money did he want to pay and denied
that at some point in time he
grabbed the driver's licence from Mogale. According to plaintiff when
Mogale asked De Oliveira how
much he wanted to pay he assumed that
Mogale was soliciting a bribe.
[23] Under cross
examination the plaintiff kept on introducing new facts that were
initially not stated during his evidence in chief.
He attempted to
hide a statement that he had earlier made to the police on 17
February 2010 and conceded under cross examination
that the only
truthful evidence was what was stated in his statement made on 17
February 2010. The said statement contradicted
most of his evidence
in chief.
[24] The plaintiff
denied ever seeing Mogale's supervisor at the scene, Mr Patrick Pule,
as the next question anticipated would
be concerning his failure to
report Mr Mogale for the alleged solicitation of a bribe to his
Senior, Mr Pule. Plaintiff did not
report Mogale for soliciting a
bribe at the police station when in a position to do so. He failed to
produce proof of opening a
criminal case of bribery in Johannesburg.
[25] The plaintiff's
credibility in Court was damaged beyond repair. The version presented
by Plaintiff in Court was improbable.
[26]
As to the balancing of probabilities, the first defendant's Counsel
referred to
GOVAN
VS SKIDMORE 1952 (i)SA 732 (N) at 734 WHERE SELKE
J
had this to say:" in finding facts or making inferences in a
civil case, it seems to me that one may, as Wigmore conveys
in his
work on EVIDENCE 3
rd
edition
paragraph 32, select a conclusion which seems to be the more natural
or plausible conclusion from amongst several conceivable
ones, even
though that conclusion is not the only reasonable one".
In
GOVAN VS SKIDMORE
case SELKE 3
gave
the word "plausible" a connotation which conveyed the words
such as acceptable credible or suitable.
The court, in
drawing inferences from the proven facts, should act on a balance of
probabilities.
[27] It is for this
Court therefore to look at the version of the first defendant's
witnesses and that of the plaintiff and decide
which of the two
versions is more plausible or probable or credible or acceptable. The
standard of proof would be that of a balance
of probabilities or a
preponderance of probabilities.
[28]
In supporting the lawfulness of the arrest, the first defendant's
Counsel referred to
S.V.
NAIDOO
1977 (2) SA 123
(N)
wherein
a traffic inspector informed Court that while driving on his way to
assume duty at a speed trap he noticed a vehicle approaching
from the
opposite direction. Its lights were flashing at all the oncoming
vehicles to slow down.
He made a "U"
turn and followed the flickering vehicle and stopped it. He asked the
driver to explain his actions and
the driver said it was not him but
the passenger who flashed the lights while he was driving. The driver
was charged with attempting
to obstruct the ends of justice and
convicted. The Court held that an actual interference in the speed
trap would constitute obstruction
of the due administration of
justice.
[29]
In
S V
MAKHATHINI1975 (2) SA 690 (N)
the
appellant had been convicted by a Magistrate of Contravening Section
162 of Ordinance 21 of 1966 (N) in that he had wrongfully
and
unlawfully obstructed and hindered a traffic officer in the exercise
of his powers. It appeared that the appellant had been
stopped at a
road block by the traffic officer and after producing his driver's
licence he refused to get out of his car to enable
the traffic
officer to test the brakes of his car. The traffic officer made
several requests that the appellant gets out of his
car but the
appellant refused. The Court held that his conduct amounted to an
interference and obstruction of the traffic officer
in the exercise
of his powers.
[30] In applying the
law into the facts the Court had to consider the following:
30.1. Plaintiff
referred to
Section 334
of the
Criminal Procedure Act during
argument
challenging the evidence of Mogale that he is a peace office in that
Mogale failed to produce a certificate of appointment
by the
Minister. Plaintiff only demanded the certificate during cross
examination in Court and never gave first defendant notice
to produce
a certificate of appointment as a peace officer. The Court cannot
therefore assume that Mogale is not a peace officer
unless prior
notice or request in terms of the Rules was given to him to produce
the certificate in Court.
30.2. It is trite
law and beyond any doubt that defeating the ends of justice and
obstructing the police officer wilfully in the
execution of his
duties are both Criminal Offences.
30.3. The plaintiff
was accordingly charged with defeating the ends of justio and
acquitted in Court after evidence was led.
30.4. The record of
the Criminal proceedings in Nelspruit had been discovered as proofs
as well as the record of the disciplinary
enquiry where the Plaintiff
was disciplined for his disgraceful conduct on the date of the
incident and dismissed by his employer.
Plaintiff failed to lead
evidence of his witness, Mr De Oliviera.
The record of the
disciplinary enquiry which was discovered revealed that De Oliviera
gave evidence against the Plaintiff which
led to plaintiff's
dismissal.
The version of the
Plaintiff is marred with incongruities and tainted with lies.
30.5. Having looked
at the version of the first defendant's witnesses and that of the
Plaintiff the Court is satisfied that the
first defendant's version
is more probable or plausible.
30.6. Reference to
NAIDOO'S CASE as well as to MAKHATINI'S CASE cited in paragraphs 28
and 29 above clearly confirms that a traffic
officer performs the
functions of a peace officer.
30.7.
In the case of
S. V
GREENSTEIN AND ANOTHER
1977 (3) SA 220
(RA)
the
court made the following observation:- The offence commonly described
as defeating or obstructing "the course of justice"
or the
"ends of justice", properly defined, consists of defeating
or obstructing the administration of justice. In modern
systems of
law, the administration of justice has, with the development of the
police forces, become increasingly involved in the
investigation and
prevention of crime. If a person, knowing that police investigations
are based on a suspicion that a crime may
have been committed, does
acts which obstruct the police in their investigations with the
intention of doing so, it should, in
the light of modern developments
in the administration of justice, be no defence for the accused to
plead that he never foresaw
the possibility of a prosecution and that
his motive for the intended obstruction was purely to harass the
police and not to prejudice
the end result of the investigation.
30.8. In the present
matter the plaintiff's conduct was directed at refusing and thus
obstructing the traffic officer who was lawfully
executing his duties
from doing so. In so doing and in view of the aforementioned cases
the plaintiff indeed committed an offence.
In the circumstances he
opened himself to arrest without a warrant as provided for in terms
of
Section 40
(i)(j) of the Act. Therefore the arrest was not
unlawful.
30.9. The Court is
fully convinced that the first defendant has discharged the onus in a
preponderance of probabilities that both
the arrest of the Plaintiff
on 13 February 2013 by the first defendant and the subsequent
detention by the second defendant were
lawful.
30.10. In the result
the plaintiff's claim for damages must fail and the judgment is
granted in favour of both defendants.
[31] The following
order is made.
(a) Plaintiff's
claim against the first and the second defendants is dismissed with
costs.
(b) Costs include
costs of both Counsels calculated on the High Court scale.
PLC
MASETI
ACTING JUDGE OF
THE GAUTENG DIVISION,
PRETORIA
DATE OF HEARING:
19 MARCH 2014
DATE OF JUDGMENT:
30 MAY 2014
INSTRUCTED BY:
LINDHOUT ATTORNEYS C/O WEISS ATTORNEYS WATERKLOOF PARK 469 JULIUS
JEPPE STREET WATERKLOOF PRETORIA
FOR THE 1
st
DEFENDANT: ADV. M GWALA
INSTRUCTED BY:
MZUZU ATTORNEYS
C/O MPHELA
& ASSOCIATES 544 CHARLES STREET MENLO PARK PRETORIA
FOR THE 2
nd
DEFENDANT: ADV. M. JOZANA
INSTRUCTED BY:
STATE ATTORNEY
THE SALU BUILDING
225 THABO SEHUME STREET PRETORIA