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[2013] ZAGPPHC 60
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Waters v Minister of Safety and Security (46179/2011) [2013] ZAGPPHC 60 (15 February 2013)
IN
THE NORTH GAUTENG HIGH COURT.
PRETORIA
/ES (REPUBLIC OF SOUTH AFRICA)
CASE
NO: 46179/2011
DATE:15/02/2013
IN
THE MATTER BETWEEN
MICHAEL
JOHN
WATERS
…...................................................................
PLAINTIFF
AND
MINISTER
OF SAFETY AND
SECURITY
…...........................................
DEFENDANT
JUDGMENT
PRINSLOO,
J
[1]
The plaintiff claims a substantial amount in damages from the
defendant on the basis of the alleged unlawful arrest and detention
of the plaintiff by police officers acting in the course and scope of
their employment with the defendant at the Krugersdorp police
station
and the Krugersdorp magistrate's court cells on 21 and 22 August
2008.
[2]
It is not disputed that the relevant police officials, at all times,
acted within the course and scope of their employment with
the
defendant. The arrest and detention are also not disputed.
It
is also common cause that the plaintiff, after his arrest and
detention, was brought before the Krugersdorp magistrate's court
on
22 August 2008 whereafter he was released on bail and the case
postponed to a date in October 2008. On the last mentioned date
all
charges against the plaintiff were withdrawn. The charges related to
the alleged unlawful possession of firearms and ammunition
in
contravention of the Firearms Control Act 60 of 2000 ("the
FACA").
[3]
At the commencement of the proceedings before me, the parties jointly
applied for the quantum of the claim to be separated for
later
adjudication in terms of Uniform Rule 33(4). I ordered accordingly.
[4]
It was common cause between the parties that the onus was on the
defendant to prove the lawfulness of the arrest and detention
- see
Harms, Amler's Precedents of Pleadings 7th edition p47, Mhaga v
Minister of Safety & Security
[2001] 2 All SA 534
(Tk) at 537i-j.
[5]
It is also common cause between the parties that the arrest was
effected without a warrant so that the provisions of section
40 of
the Criminal Procedure Act 51 of 1977 ("the CPA") will come
into play.
[6]
Before me, Mr Erasmus appeared for the plaintiff and Mr Baloyi
appeared for the defendant.
Brief
introduction: some background facts and a reference to some relevant
provisions of
the
FACA
[7]
The plaintiff retired as a lieutenant colonel of the South African
Police Services in 1995. He is now 61 years old. He is the
sole
member of a close corporation, Waters Firearm Training &
Assessment Centre t/a Firearm Competency Assessment and Training
Centre ("FCATC"). FCATC is an accredited training centre
(in terms of section 8 of the FACA) for the holders, and, it
seems,
prospective holders, of firearm licences. The plaintiff is the
proprietor of more than one of these training centres. For
example,
there is also one in Graaff-Reinet. The one relevant for present
purposes, FCATC, carries on business in Krugersdorp (also
known now
as Mogale City, although the witnesses referred to Krugersdorp and I
will do the same). The accreditation certificate
for FCATC was
already issued some eight years ago, in January 2005, and, according
to the evidence led before me, the accreditation
is still in force
and FCATC is still conducting the training activities. It seems that
the plaintiffs training centres also have
so-called Memoranda of
Understanding ("MOU's") with some eleven other training
centres.
[8]
On 21 August 2008, at approximately 10:00, a formidable team of
police officers, under the leadership of Colonel Yvonne Burger,
arrived, unannounced and without prior arrangement, at the FCATC
premises in Krugersdorp. All this is common cause. It appears
from
the weight of the evidence that there were quite a number of police
officials, some twelve to fifteen of them, and some high
ranking
officers amongst them, and some were armed with R5 assault rifles.
The evidence indicates that some of these armed policemen
took up
strategic positions around the premises and also in the vicinity of
the strong room where the safes are housed in which
firearms were
locked up.
[9]
The attitude of the defence witnesses, who testified first because of
the incidence of the onus on the defendant, was that they
merely
visited the premises for a so-called "compliance inspection".
After an amendment of the plea, it was alleged that
it was a "routine
compliance inspection" in terms of the FACA.
[10]The
evidence on behalf of the defendant was that the "compliance
inspection" was done in terms of section 109 of the
FACA.
Section 109 reads:
"109.
Inspection of documents. - (1) A police official or any person
authorised by the Registrar may enter any (a) place of
business of a
dealer;
(b)
firearm or ammunition factory or place of business of a manufacturer
of firearms and ammunition;
(c)
place of business of a gunsmith;
(d)
place of business of the holder of an import or export permit;
(e)
place of business, including any vehicle, vessel or aircraft, of an
authorised transporter of firearms and ammunition;
(f)
office or premises of an Official Institution which may issue a
permit to its employees to possess and use firearms; or
(g)
place of business, including any vehicle, vessel or aircraft, of the
holder of a licence in respect of firearms used for business
purposes
referred to in section 20.
and
conduct such inspection as may be necessary in order to determine
whether the requirements and conditions of this Act or of
any
competency certificate, licence, permit or authorisation issued in
terms of this Act are being complied with.
(2)
The Registrar must comply with such security arrangements as may be
agreed upon with the head of the Official Institution in
question."
(Emphasis added.)
Section
109 resorts under Chapter 13, headed "inspections".
According
to the evidence, the defendant conducted this "inspection"
in terms of the provisions of section 109(1 )(g)
which is the only
subsection which would possibly apply to this plaintiff. Section 20
goes under the heading "licence to possess
firearm for business
purposes".
In
this regard, the difficulty from the point of view of the defendant,
is that there were no business licences to possess firearms
issued to
the FCATC. Colonel Burger, in cross-examination, in so many words,
admitted that this was the position and, more significantly,
she
admitted that she knew at the time of the inspection that no business
licences to possess firearms had been issued to FCATC.
In
the circumstances, it seems to me that the "inspection" as
it was described on behalf of the defendant, fell outside
the ambit
of section 109 of the FACA and, in that sense, was unlawful.
[11]
The evidence of the plaintiff, supported by the evidence of two other
retired high ranking police officers, was that what the
police
officers conducted was not an inspection in terms of section 109, but
a "raid", as they termed it, in terms of
the provisions of
section 115 of the FACA. In a replication to the amended plea, the
plaintiff also pleaded accordingly. Section
115 resorts under chapter
14, headed "search and seizure". The relevant portions of
section 115 read -
"115.
Inspection, search and seizure for enquiry or investigation (with
special warrant). - (1) For purposes of any enquiry
or investigation
relating to the application of this Act and subject to subsection
(4). the Registrar or any person authorised
in writing by the
Registrar may-
(a)
at any reasonable time and without prior notice, enter any business
or industrial premises; or
(b)
at any reasonable time and with reasonable notice, enter any
dwelling,
on
or in which anything relating to the subject-matter of the enquiry or
investigation is or is suspected to be.
(2)
The Registrar or person authorised may-
(a)
inspect and search any premises ...
(b)
examine anything found in the premises or dwelling which may have a
bearing on the subject-matter of the enquiry or investigation;
(c)
request information or an explanation regarding such object from the
owner or person in control of those premises ...
(d)
make copies of or extracts from any book or document found on or in
the premises ...
(e)
against the issue of a written receipt, seize anything on or in the
premises or dwelling which may have a bearing on the subject-matter
of the enquiry or investigation.
(3)
Any entry upon, inspection of or search of any premises or dwelling,
or questioning of any person, in terms of this section
must be
carried out with strict regard to decency and order.
(4)
Any power contemplated in subsection (1) may be exercised only-
(a)
in terms of a warrant issued by a judge or magistrate; or
(b)
without warrant by a police official contemplated in paragraph (a) of
the definition of 'police official' in section 1 if
(1)
there are reasonable grounds to believe that a warrant would be
issued and the delay in obtaining the warrant would defeat the
object
for which the power is exercised;
(ii)
the person who is competent to do so consents to the exercise of the
power.
(5)
(a) A warrant may only be issued if it appears from evidence
under
oath or on affirmation that there are reasonable grounds to suspect
that anything referred to in subsection
(2)
is or may be on the premises or in the dwelling in question.
(b)
The evidence must contain information ...
(6) ...
(7)
A warrant contemplated in this section remains in force until ..."
It
is common cause that the activities conducted by the police officers
on the premises of the plaintiff on 21 August 2008 were
not
authorised in terms of a warrant issued by a judge or magistrate as
contemplated in section 115(4)(a). The alternative prescribed
in
section 115(4)(b) where such a search and seizure operation can be
conducted without a warrant, does not apply to the present
case on
the weight of the evidence and, in any event, the defendant insisted
that the operation was not conducted in terms of section
115. I add
that the weight of the evidence also clearly indicates that the
plaintiff and his employees or colleagues did not consent
to the
operation but only submitted to the instructions received from the
armed police officers.
As
I have already briefly mentioned, the evidence on this subject, which
is largely common cause, indicates that a number of police
officers
(with a number of police vehicles) arrived at the plaintiffs premises
unannounced. Many of the policemen were armed, some
with R5 assault
rifles and some took up strategic positions on the premises. In the
end, some twenty three or twenty four firearms
were seized and
removed to the Krugersdorp police station. Many rounds of ammunition
were seized and removed. Documents were inspected.
The plaintiff and
his colleagues were ordered to open the safes where the firearms were
housed.
Under
these circumstances, it seems to me that the operation comfortably
resorted under the provisions of section 115 of the FACA.
Again, the
difficulty from the point of view of the defendant, is that the
operation was conducted without a warrant as contemplated
in section
115(4) and the alternative circumstances to have done so without a
warrant, as contemplated in section 115(4)(b), were
not present,
neither did the defendant claim such circumstances to have been
present. Consequently, I am of the view that the operation,
whether
conducted in terms of section 109 (which it could not have been for
the reason mentioned) or in terms of section 115 (without
a warrant)
was unlawful.
[12]
After the search and seizure operation, the plaintiff was arrested,
as I have explained, and detained for one night, brought
before court
the next day, charged with the alleged unlawful possession of
firearms and ammunition, released on bail and the case
was postponed
to October 2008 when all the charges were withdrawn.
The
evidence
[13]
The trial lasted for seven days. Some of the witnesses offered
lengthy presentations in chief, and they were intensively
cross-examined.
Some of the details presented during the evidence are
not relevant for purposes of this particular enquiry. The brief
summary of
the evidence which follows, will be limited to what I
consider to be relevant.
(i)
Colonel Yvonne Burger ("Burger”)
[14]
She has thirty four years service in the SAP. She spent some time in
the section involving the Firearms Register and is now
attached to
operational response services.
[15]
She knows about the provision whereby training providers, such as
FCATC, can be accredited as such in terms of the Act. There
is also
an oversight body, SASSETA (Safety and Security Sector, Education and
Training Authority) which considers applications
for accreditation.
Police stations are not empowered to issue permits of this nature.
[16]
The operation of 21 August 2008 was a "compliance inspection"
and no search warrant or permission was necessary to
conduct the
operation. The witness gave a somewhat vague explanation for the
decision to conduct the operation. She had been informed
by a police
officer in Brooklyn that there was an indication that a business in
Kilner Park Pretoria gives firearm training for
purposes of
competency certification by using an accreditation number belonging
to the plaintiff. This is what she was going to
investigate. Details
about the alleged Kilner Park operation never came to the fore during
the trial. The witness never personally
investigated the allegations
or visited Kilner Park. In my view there are strong indications that
this whole reliance on the Kilner
Park operation, such as it was, was
nothing but a red herring.
[17]
I have also referred to the fact that FCATC had Memoranda of
Understanding (MOU's) with a number of other training providers.
According to this witness, she had information that in respect of six
of those MOU's the other training providers were not accredited.
She
received instructions from Inspector Bothma of the Firearms Registry
to investigate this state of affairs and delegated this
instruction
to certain provincial heads but never established what the outcome of
the investigation was. Bearing this in mind,
and also the vague
"Kilner Park connection" it is difficult to escape the
conclusion that this witness (and perhaps also
the head of the
Central Firearms Control Register, from whom she appeared to take
instructions) was determined to investigate the
plaintiff for reasons
which never really emerged during the trial.
[18]
Turning to the operation of 21 August the witness testified that she
went to the premises of the plaintiff with "a team
of people".
Included in the team was the Designated Firearms Officer ("DFO")
of Krugersdorp, Captain Moabelo, who
also later became the arresting
officer.
They
arrived unannounced at about 10:20 and were received by Mr Meyer (who
also later testified) in the temporary absence of the
plaintiff, who
arrived shortly thereafter when telephoned by Meyer to be in
attendance. It was explained that they were going to
do a "compliance
inspection". According to the witness, there was no resistance
to this announcement. The evidence of
the plaintiff, in contrast to
that of Burger, was that he queried the operation, asked whether
there was a warrant authorised and
asked in terms of which section
the "inspection" would be conducted to be informed by the
witness that it would be in
terms of section 109(1 )(g), to which I
have referred. Meyer's evidence also suggests that he offered some
resistance and put some
questions to the witness. The onus is on the
defendant. There are two mutually destructive versions on this
particular subject.
I am not prepared to reject the version of the
plaintiff and Meyer that they queried the validity of the operation.
I considered
them both to be impressive and credible witnesses.
[19]
The witness called for the Training Register and the Shooting
Register of the plaintiff. These were scrutinised. She came across
yet another red herring by the name of J W Aspeling. According to the
Shooting Register, he shot with a shotgun. The Central Firearms
Register did not display a shotgun registered in the name of
Aspeling. According to the witness, a training institution such as
FCATC does not have to own firearms. It may be that the institution
only trains the public on the statutory provisions (without
shooting)
as part of the competency training. Indeed, by far the greatest
majority of the clients of FCATC underwent only that
type of
training. According to the witness, once practical shooting is done
by a client of the training institution, either the
client
(applicant) or the training provider must have a firearm. Because
Aspeling did not have a shotgun in his name, and, presumably
because
it was common cause that FCATC had no business firearm licences, as
explained, the witness thought something was amiss.
From the
cross-examination of the witness, it appeared that she overlooked the
provisions of section 22 of the FACA which reads
as follows:
"22.
Holder of licence may allow another person to use firearm. - Despite
anything to the contrary in this Act but subject
to section 120(5),
any person who is at least 21 years of age and the holder of
a
licence to possess a firearm used in terms of this Act may allow any
other person to use that firearm while under his or her immediate
supervision where it is safe to use the firearm and for a lawful
purpose."
The
provisions of section 120(5) do not apply for present purposes. It is
common cause that the plaintiff, and some of his colleagues,
including Oosthuizen, Meyer, Venter and Vos, had their own private
firearms housed on the premises and in separate safes in respect
of
which each safe each owner of a private firearm had exclusive access.
There was also a safe housing firearms of Bossasa Operations
(Pty)
Ltd ("Bossasa") a security company stationed nearby, which
often used the shooting range on the premises for training
purposes.
Indeed, the undisputed evidence was that the shooting range is used
by a whole variety of role players including hunters,
Metro police,
trainers and other individuals.
[20]
According to the witness she then asked for the firearms used for
training purposes to be exhibited to her. The weight of the
evidence,
as presented on behalf of the plaintiff, suggests that the police
(including Burger) asked for all the firearms on the
premises to be
displayed. According to Burger initially eighteen firearms were
brought to her "from a safe" and later
another six firearms
were brought to her from "another safe not adjacent to the
office but in another building on the same
premises" after a
colleague of the plaintiff, and a later witness, Meyer, took them to
that safe. Burger never bothered to
inspect the safes neither was she
present when the weapons were removed from these safes. In fact, the
evidence is quite clear
that there was only one strong room housing
six safes. There are photographs to prove this. The safes include the
FCATC safe, housing
only an air rifle and the so-called BB rifle,
none of which needed to be licenced, the plaintiffs own safe
containing his own firearms,
a safe containing the Bossasa firearms,
and safes containing the private firearms of some of the other
trainers and colleagues
of the plaintiff. All the firearms were
properly licenced and could fire the ammunition also housed in some
of the safes. A particular
class of ammunition was housed in the
strong room outside the safes and did not belong to any of the
plaintiff or his colleagues
or Bossasa. I will revert to this
subject.
[21]
For the sake of brevity I can summarise the evidence in chief of
Burger by mentioning that according to her she discovered
enough
irregularities or "contraventions" to persuade her that the
plaintiff should be arrested and the weapons and ammunition
seized
and taken to the police station in Krugersdorp. The contraventions,
according to her, included the discovery of a 9mm Browning
pistol
which had no serial number so that it was a prohibited firearm, and
some firearms housed in the safes for storage purposes
without the
necessary permits. She maintained that the permits were issued by the
DFO of Germiston instead of the DFO of Krugersdorp
so that the
storage was unlawful. She also maintained that although the firearms
may have been licenced in the name of some of
the individuals, those
which, according to her, were used for training purposes were not
properly licenced.
[22]
The plaintiff was taken to the police station where Burger and her
team entered the confiscated firearms and ammunition into
the SAP. 13
register. She reported telephonically to her chief, Brigadier Bothma,
and also "recommended" to DFO Moabelo
that an arrest would
be in order. She, herself, had nothing to do with the arrest. She
does not claim to understand the procedures
required in order to
effect the lawful arrest neither does she know the provisions of
section 40 of the CPA.
[23]
In cross-examination it was put to Burger that the 9mm Browning
pistol ("the 9mm Browning") was duly licenced in
the name
of the plaintiff already in 1993 and that it at all relevant times
did have a serial number. When the pistol was seized,
it was dirty
and the serial number was difficult to detect without dissembling the
weapon. In fact, Moabelo returned the 9mm Browning
to the plaintiff
about a month before the trial in terms of official documentation
signed by Moabelo and counter-signed by another
officer. This is part
of the record. Moabelo, in his evidence, said that the 9mm Browning
was returned "because of an administrative
oversight". That
would mean that the counter-signing officer would have made the same
mistake. The 9mm Browning was exhibited
in court to Burger, Moabelo
and other witnesses. It is true that another witness on behalf of the
defence, Captain Hendrina Johanna
Blignaut, on behalf of the forensic
department, testified that the 9mm Browning did not have a serial
number when she examined
the weapon. This remains something of a
mystery. On behalf of the defence, it was suggested that the weapon
exhibited in court
was probably not the same weapon that was seized.
If that is so, it is a mystery why the 9mm Browning was officially
returned
to the plaintiff in terms of formal documentation, if it had
not been seized in the first place.
It
was also put to Burger that the plaintiff tendered to show the
licence of the 9mm Browning to her but she was not interested.
This
she denied. She said she asked the plaintiff for the licence but he
could not produce it. The licence is part of the record.
She also
insisted that even if licences were exhibited to her which were
issued to the plaintiff and his colleagues in their personal
capacities it would still not be good enough because there should
have been licences in the name of the training provider for training
purposes. For reasons mentioned, this appears to be the wrong
approach. This attitude of Burger was repeated by her on a number
of
occasions. What was also often repeated on behalf of the plaintiff
and his witnesses is that Burger was not interested in listening
to
their explanations. On considering the evidence as a whole, I am
under the impression, on the probabilities, that Burger was
determined to find a reason to bring the plaintiff to book. The
plaintiff also testified along these lines. He did not know what
the
reason was for the apparent grudge which was held against him.
[24]
Significantly, in cross-examination Burger admitted that, apart from
the dispute around the 9mm Browning, all the firearms
seized were
lawfully licenced in the names of the individuals I have mentioned.
She conceded that there was "an indication
of ownership on the
system". I have already dealt with the dispute around the 9mm
Browning and that there is clear evidence
in the documentation that
it was licenced in the name of the plaintiff already in 1993.
[25]
Still on the subject of the manner in which this operation was
conducted against the plaintiff, I add that on 26 August 2008,
a few
days after the arrest, a lengthy notice was sent to the plaintiff by
the head of the firearms, liquor and second hand goods
control
department, Director J J Bothma, calling upon the plaintiff to show
cause within thirty days why his accreditation as a
training provider
in terms of section 8 of the FACA should not be cancelled. Nothing
came of this. As I have said, at the time
of the trial, the
accreditation was still in place and FCATC was still doing business.
[26]
It is also common cause that on 21 August, the representative of
SASSETA, referred to earlier, attended the operation and said
that he
found no non- compliance. His name is John Baker.
[27]
Burger was cross-examined about the permits, supra, issued to the
plaintiff in his personal capacity to permit the lawful storage
by
him of seven firearms kept on the premises. Burger insisted that the
permits were invalid because they were issued by the Germiston
DFO
and not the Krugersdorp DFO. Burger's attention was invited to the
provisions of regulation 86(4) issued in terms of the FACA
which
provides that the permits are to be issued by the "DFO
responsible for the
area
in which the applicant ordinarily resides". This was Germiston
at the time. Burger insisted that the permits were invalid.
[28]
There was also a dispute about two .22 rifles licenced to the FCATC
Graaff- Reinet branch. It was put to Burger that these
rifles were
returned to the Krugersdorp branch because the DFO of Graaff-Reinet,
Mr Johan le Roux, recommended that this should
be done. The rifles
were not in working order. Burger insisted that this explanation was
not given to her at the time. The dispute
remained as to whether
Burger was not furnished with explanations or whether she was not
interested in receiving such explanations.
This was an ongoing theme
of the cross-examination. It was put to Burger that, in any event, a
licence holder has seven days within
which to produce a licence,
permit or authorisation for inspection when required to do so by a
police official. This is in terms
of section 106(1 )(a) of the FACA.
Evidently this provision was ignored by Burger and the rest of her
team members inasmuch as
licences required may not have been produced
at the time of the operation. This is over and above the fact that
the plaintiff and
his witnesses insisted that the licences were duly
exhibited. The onus is on the defendant.
[29]
In cross-examination, Burger confirmed that she was not the arresting
officer and had nothing to do with the arrest. She admitted
that she
did recommend to Moabelo that an arrest might be indicated. It was
put to Burger that before an arrest is effected, the
arresting
officer has a discretion. He is not obliged to effect an arrest. Her
answer was "I am not an expert on arrest. It
is possible most
probably that it can be a discretion." I will return to this
issue when dealing with the evidence of Moabelo.
[30]
I return to the subject of the ammunition that was seized.
[31]
The cross-examiner divided the ammunition seized into five groups.
Group one was ammunition that may all be possessed legally
by the
plaintiff in his personal capacity, given the firearms licenced to
him personally and the licences that were available for
inspection.
Group two was ammunition that may be lawfully possessed by H P
Oosthuizen one of the trainers who also gave evidence
and whose
personal firearms were housed in one of the six safes. Group three
was ammunition that could lawfully be possessed by
G Meyer, another
of the trainers who also testified. Group four was ammunition that
could lawfully be used by Bossasa security
group in a business
capacity. Group five was ammunition that could lawfully be used by
FCATC at their various branches. The relevant
licences were also
exhibited and made part of the record.
Burger
could not dispute these propositions. It was again put to her that
she did not afford all the role players an opportunity
to explain the
lawful possession of this ammunition to her.
[32]
The only exception is group six. This included ammunition which was
picked up by an employee of the plaintiff during regular
inspections
of the shooting range after the range had been used. The ammunition
was picked up and collected and the police was
telephoned to come and
fetch the ammunition for safekeeping or for destruction. The police
did so at irregular intervals. The intention
of the plaintiff was not
to possess the ammunition but to lawfully dispose thereof by handing
it to the police. Again, it was put
to Burger that neither the
plaintiff nor any of his employees were given the opportunity by
Burger and her team to explain the
presence of the group six
ammunition. Although Burger testified that such opportunity was
afforded, I find no basis for rejecting
the version offered on behalf
of the plaintiff. The onus is on the defendant. In any event, it is
clear that the seven day grace
period prescribed by section 106(1),
supra, was ignored by Burger and her team. In fact, the plaintiff and
some of his witnesses
testified that they were under the impression
that they would have an opportunity to submit further written
explanations, if required,
and did not anticipate anything like an
arrest under these particular circumstances.
[33]
Although Burger was a forceful witness, I was left with the
impression, for the reasons mentioned, that she adopted an inflexible
attitude. She appeared to have been determined to bring the plaintiff
to book. She also appears to have overlooked the provisions
of
sections 106 and 22 of the FACA. Moreover, for the reasons I have
mentioned, 1 have come to the conclusion that the operation
she led
was unlawful, both with regard to the provisions of section 109 and
section 115.
(ii)
Captain Hendrina Johanna Blignaut
[34]
She has been in the police force since 1993 (for about twenty years).
She is attached to the forensic science laboratory: ballistic
section.
[35]
I have dealt with her evidence. It only turns on the 9mm Browning. I
take into account her evidence that the weapon she inspected
did not
have a serial number.
[36]
I have dealt with the evidence of the plaintiff, to the effect that
the weapon was licenced to him personally already in 1993.
The
licence forms part of the record. The weapon was exhibited at court
after it was returned a month before the trial by Moabelo
and a
fellow officer who counter-signed the official documentation. If the
weapon was not seized in the first place, it could not
have been
returned. If it was another wreapon that Captain Blignaut examined,
that mystery weapon was never described or identified
during the
trial. The plaintiff also said that it was difficult to find the
serial number without dissembling the weapon. He said
that he
tendered inspection of the licence to Burger but she was not
interested.
[37]
Given that the ultimate question for decision before me, is whether
or not the arrest of the plaintiff was lawful, I cannot
see how the
testimony of Captain Blignaut can advance the case of the defendant
in any way.
(iii)
Captain Tlou Isrom Moabelo
[38]
I have already explained that he was part of the team that conducted
the operation and that he was the DFO for Krugersdorp.
[39]
I have referred to his evidence that he returned the 9mm Browning to
the plaintiff because of "an administrative oversight".
[40]
He could not dispute the evidence that there were six safes in the
one strong room. He confirmed that the safes were opened
by and on
behalf of the defendant and that the police officers removed the
firearms and ammunition.
[41]
He confirmed that he was the arresting officer and that he brought
about the arrest at the Krugersdorp police station after
the
operation. He confirmed that Burger recommended to him that there
should be an arrest but he said he took his own decision.
[42]
When asked in his evidence in chief whether he had a warrant of
arrest he said it was not necessary because it was a compliance
inspection in terms of the FACA. This is nonsensical and incorrect.
According to counsel for the plaintiff, there is no provision
in the
FACA dealing with arrests as such. I accept this submission to be
correct. The lawfulness or lack thereof of the arrest
has to be
judged against the provisions of section 40 of the CPA.
[43]
It is convenient to quote the relevant portions of section 40:
"Arrest by peace officer without
warrant
40(1)
A peace officer may without warrant arrest any person -
(a)
who commits or attempts to commit an 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;
(c)...
(h)
who is reasonably suspected of committing or of having committed an
offence under any law governing the making, supply, possession
or
conveyance of intoxicating liquor or of dependence producing drugs or
the possession or disposal of arms or ammunition;
(0 - "
[44]
When asked in cross-examination whether he effected the arrest in
terms of section 40(1 )(b) of the CPA, the witness replied
by asking
the cross-examiner to read the section to him. He clearly did not
know the provisions of section 40 or, perhaps, even
of its existence.
It is clear that the provisions of section 40 were not in his
contemplation when he effected the arrest.
[45]
When it was put to him in cross-examination that the cross-examiner
could find no empowering provision in the FACA regarding
the making
of an arrest,
Moabelo
answered that they were required, in terms of the FACA to do a
routine compliance inspection the purpose of which was to
check if
licence holders still comply with the provisions of the FACA. "...
that is what happened that day. I saw no need
for a search warrant."
When
it was repeated that there was no empowering section in the FACA
dealing with arrests without a warrant he said that he had
no
comment. When it was put to him that the only provision dealing with
an arrest without a warrant was to be found in the CPA
he said he had
no comment.
When
he asked what he meant by no comment he said that he had testified
about the FACA and in terms of that Act "we are authorised
to
make an arrest if there is any violation of that Act". When he
was invited to refer to the relevant provision in the FACA
and given
the text to study he came up with section 109. Those provisions I
have quoted. They have nothing to do with effecting
of an arrest, let
alone arrest without a warrant.
It
was put to him that he did not effect the arrest in terms of the FACA
and he insisted that he did do so. He said "I acted
based on the
FACA even though I may not know the section".
In
further cross-examination he conceded that he cannot indicate the
relevant provision in the FACA dealing with arrest without
a warrant.
[46]
What follows is a "reproduction" of what I consider to be
some more crucial cross-examination of Moabelo on the question
of
whether or not the arrest was lawful. This is, after all, the central
issue to be decided. I call it a "reproduction"
because it
will not be true to the exact words used during the trial. I am
paraphrasing from my notes, because I am not in possession
of a typed
transcript of the evidence:
"If
you have a reasonable suspicion that an offence was committed (any
offence) can you arrest without warrant? — Yes.
I
put it to you that the answer is wrong. Section 40(1 )(b) of the CPA
requires that you must suspect that an offence was committed
as
referred to in schedule 1. Not any offence.
I
put it to you that you did not know this? — No, not stating it
does not mean I did not know.
The
question is repeated: it might be my mistake.
I
put it to you that the mistake is you did not know. — I agree.
If
you have a reasonable suspicion of a schedule 1 offence having been
committed does it follow that you are obliged to arrest?
— You
can arrest. You do not have to? — You can arrest.
You
have an option not to arrest? — You have no choice you must
arrest. That is also wrong. Section 40(1) says a discretion
arises to
arrest. You may or you may not? — No response. 1 am not aware
of that section.
You
do not know section 40(1) therefore you could not have arrested in
terms of section 40(1)? — I do not agree.
You
have no knowledge of the jurisdictional facts of section 40(1)? —
Correct.
Based
on this, you could not have acted to arrest in terms of those
subsections. (Here the witness wanted the question repeated
and that
was done.) — I effected the arrest because there was no
explanation of the plaintiff being in possession of firearms
without
a permit/licence/authority and also the ammunition.
At
the time of the arrest you were not aware of the provisions of
section 40(1)
of the
Criminal Procedure Act? — I
did not know
that section but knew that it was unlawful to be in possession of a
firearm without a licence.
You
also did not know that you had a discretion you thought you had to
arrest? — Correct."
[47]
One of the leading cases now on the issue of arrest without a warrant
is that of Minister of Safety and Security v Sekhoto
& Another
2011 (1) SACR 315
(SCA).
In
Hiemstra's Criminal Procedure (loose leaf edition) 5-7 to 5-8 the
subject of the discretion is dealt with as follows:
"Discretion
- Once the jurisdictional facts are present, a discretion arises
whether to arrest or not. The police officer is
not obliged to effect
the
arrest.
(Sekhoto, supra, para [28].) The discretion must be exercised in good
faith, rationally and not arbitrarily. (Sekhoto, para
[38].) It is
not correct to say that the police officer is permitted to arrest
only if satisfied that the suspect might not otherwise
attend court.
The arresting officer is not called upon to determine whether the
suspect ought to be detained pending a trial. (Sekhoto
paras [43] and
[44].) The discretion must be exercised rationally in relation to the
power of arrest. This is an objective enquiry
with relation to the
facts. {Sekhoto paras [36] to [44].) The arrestee who attacks the
exercise of the discretion where the jurisdictional
facts are present
bears the onus to prove that the discretion was not properly
exercised. {Sekhoto para [49].) An attack relating
to the discretion
must be alleged and proved in order to make it an issue upon which
the court must decide. {Sekhoto paras [50]
to [52]; [57].)"
I
add that in his replication, the plaintiff duly pleaded that Moabelo
failed to apply his mind and to exercise the discretion conferred
upon him properly or at all "... thereby resulting in the
irrational and arbitrary arrest of the plaintiff'.
[48]
The author in Hiemstra, at 5-8, then says the following:
"When
arrests can be made without a warrant - It is submitted that the
present law regarding arrest without a warrant can be
summarised as
follows following the judgment of the Supreme Court of Appeal in
Sekhoto ...:
(i)
the jurisdictional prerequisites for
section 40(1
)(b) must be
present;
(ii)
the arrester must be aware that he or she has a discretion to arrest;
(iii)
the arrester must exercise that discretion with reference to the
facts;
(iv)
there is no jurisdictional requirement that the arresting officer
should consider using a less drastic measure than arrest
to bring the
suspect before court."
In
this case, as illustrated, the arrester had no idea of the provisions
of
section 40
, let alone the requirements of
section 40(1
)(b). In my
view, the same would apply, if necessary, to the provisions of
section 40(1
)(h).
More
importantly, the arrester did not know that he had a discretion to
arrest. He thought that he had to arrest.
In
my view, it is also doubtful whether the arrester exercised his
discretion with reference to the facts. I have dealt with the
facts
when referring to the evidence of Burger under cross-examination.
Burger was clearly the driving force behind the operation.
It is not
clear, and it is doubtful, whether Moabelo took an active part in the
discussions with the plaintiff and his witnesses
around the
availability of licences, the use of the separate safes and related
matters.
In
Amler's by Harms, supra, at p47, the learned author says
"The
defendant has to show not only that the arresting officer suspected
the plaintiff of having committed an offence but that
the officer
reasonably suspected the plaintiff of having committed a schedule 1
offence specifically."
I
have referred to the authorities relied upon by the learned author.
[49]
In all the circumstances, I have come to the conclusion that the
jurisdictional prerequisites were not present in this case.
Nevertheless, inasmuch as it may be necessary, I find that the
plaintiff has discharged the onus to prove that the discretion was
not properly exercised. It could not have been, if the arrester did
not even know that he had a discretion. The position is even
worse
from the point of view of the defendant, because the arrester did not
know about the provisions of
section 40.
In
all the circumstances, I have come to the conclusion that the
defendant has failed to prove that the arrest was lawful.
[50]
The witness was not able to give a response when he was confronted
with the provisions of
section 106(1
)(a) about the seven day notice
period.
[51]
It was put to him that he should have properly investigated the
matter and given all concerned a full opportunity to explain
and that
this was not done. His answer was that he felt that he acted in the
correct way.
[52]
I add that the cross-examiner, for reasons known only to himself,
revisited, in cross-examination, the issue of
section 40
and the
discretion the following day after having dealt with the issue the
previous day. Despite the fact that the witness was
now given a
further opportunity to deal with the issue, I am satisfied that he
was unable to remedy the flaws of his earlier evidence
which I dealt
with at length.
[53]
I was also referred by counsel for the plaintiff to Mabona and
Another v Minister of Law and Order & Others
1988 2 SA 654
(SECLD) where the question of the section 40 discretion came into
play. At 658G-H the following is said:
"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."
In
my view, this requirement was not met by either Burger or Moabelo.
[54]
In general, I did not find Moabelo an impressive witness.
(iv)
Michael John Waters (the plaintiff)
[55]
After the defendant's case was closed, the plaintiff was the first
witness in support of his own case.
[56]
I covered most of the plaintiffs evidence when dealing with the
defendant's evidence, and particularly that of Burger under
cross-examination. I do not intend embarking upon unnecessary
repetition.
[57]
As a 60 year old retired police colonel, the plaintiff had been well
settled as an accredited trainer by the time when he was
arrested. By
all account he ran a series of well established training centres and
was familiar with the provisions of the FAC A.
There was no need for
him to contravene this Act or to walk around, for example, with a
prohibited firearm without a serial number.
[58]
He testified that for a compliance inspection you do not need a whole
team of heavily armed policemen.
He
did not agree to the inspection. He asked Burger in terms of what
section of the FACA she was conducting the operation and she
responded that it was in terms of section 109(1 )(g). She knew that
there were no business firearms on the premises. This much,
as I
pointed out, she admitted in cross-examination. He abided by Burger's
request to proceed, but did not consent to it. He co-operated
by
calling his ex employee, Oosthuizen, an ex colonel, who also
testified, and who kept the key of the central strong room, to
open
up. He also gave his own safe combinations and arranged for all the
safes to be opened. The details will not be repeated.
[59]
John Baker from SASSETA was also present. I have pointed out that
Baker said he could detect no irregularities.
[60]
Jan Moolman, employed by Bossasa security company, supra, was also
present. His company uses the shooting range. His company
had its
firearms available for a shooting exercise scheduled for that day.
[61]
Oosthuizen, Gerhard Meyer an ex colonel in the police, Jurie Vos an
ex lieutenant- colonel, all employees of FCATC, were also
present.
[62]
Throughout, he considered Burger not to be approachable. She kept on
insisting that she wanted business licences and possession
without
such business licences was unlawful in the circumstances. It was
fruitless to talk to her and Meyer also got involved in
a
confrontation with her. He told Meyer to leave and to inform the
others to produce their firearm licences. He was under the impression
that he would in any event have the opportunity to furnish a proper
written explanation of any queries. For these reasons he also
did not
want to argue about the Aspeling query. Meyer wanted to argue with
her about certain provisions of the FACA and there is
no provision
that firearms cannot be used for training purposes when registered in
the name of a private individual. According
to the plaintiff, Burger
made a concession in this regard. Section 22 was referred to.
Aspeling’s fellow trainee had a shotgun.
Not one of the
firearms that were seized was used for training purposes at FCATC.
So
far FCATC had already issued approximately 60 000 training
certificates without the need for business firearm licences to have
been issued.
[63]
The plaintiff said repeatedly that he was not given the opportunity
to offer full explanations. I find his evidence compelling.
He
impressed me as a good witness.
[64]
The plaintiff, in my view, adequately dealt with the issue about
obtaining storage permits from the Germiston DFO instead of
the
Krugersdorp DFO. He stayed in the Germiston area at the time. The
Germiston DFO also inspected his safe before the permits
were issued.
[65]
At the time of his arrest, the plaintiffs ex wife came to the police
station and told the warrant officer present that the
plaintiff was a
diabetic, had not eaten all day and needed treatment. A letter by the
plaintiffs doctor, Dr Gerhardt Smidt, dated
21 August 2008 was handed
to the warrant officer put in charge of the detention. This is
exhibit "B3". The letter refers
to the plaintiff and reads:
"This
man is well known to this practice.
He
is a insulin dependant diabetic who has to inject himself four times
a day.
He
has diabetic trophic sores on both feet that need twice daily
dressing to present worsening and possible amputation."
He
was nevertheless detained overnight. I add that the question as to
whether or not the letter was handed over appears to be in
dispute.
There was no application on behalf of the defendant to reopen the
case to rebut the evidence. Nevertheless, I refrain
from dealing with
this issue any further. If there is to be a quantum trial, the whole
issue will probably be canvassed in detail.
In any event, if the
arrest was unlawful, as I have found, the detention would also have
been unlawful.
(v)
Gerhard Meyer
[66]
Meyer is an ex colonel in the South African Police. After serving the
police for about twenty four years he left in 2000. He
joined FCATC
as an assessor. This happened in 2004. He was on duty on 21 August
2008.
[67]
He also described the operation as a police raid and not a compliance
inspection. There were about fifteen policemen, some
armed with
assault rifles and some took up various strategic positions including
positions in the vicinity of the strong room and
the entrance to the
premises.
[52]
This was an impressive witness who corroborated the evidence of the
plaintiff in all material respects.
[53]
His own privately owned firearms were also exhibited to the police.
These firearms were kept in a safe in a strong room to
which he had
exclusive access. He gave his combination to Oosthuizen to open his
safe. When he asked Burger to take back his firearms
because she had
seen the licences, she refused and said that she was seizing the
firearms. When he asked her on what grounds, she
said because private
firearms were being used to conduct training. He argued with her
that, for the reasons mentioned, private
arms may be used for
training. She relied on section 20 of the FACA. This only deals with
firearms registered for business purposes.
He confronted her with the
provisions of section 22. She said that she was not prepared to enter
into any discussions with him
regarding the legalities.
[54]
He also testified about the "class 6" ammunition that gets
picked up regularly at the shooting range and kept in
the strong room
in terms of an arrangement with the police. This I have explained.
[55]
Mr Moolman of Bossasa was also present. The Bossasa firearms are kept
in a safe to which Bossasa has exclusive access.
[56]
This witness was not discredited in cross-examination. He made a good
impression.
(vi)
Herman Pieter Oosthuizen
[73]
He is a retired lieutenant colonel of the police. He served the
police for seventeen years. Thereafter he joined FCATC. He
left FCATC
in August or September 2008. He was on duty on 21 August 2008.
[74]
The plaintiff asked him to open the strong room which he did. He was
given all the combinations by those who used the safes
and opened all
of them. The police were present when this was done. They did not ask
him any questions. They removed all the weapons
and asked him to
stand outside. His own personal weapons, a 6.35 Browning pistol and a
.383 rifle were also seized. He had exclusive
access to his safe. He
also testified about the "class 6" ammunition. He was not
asked to give any explanation.
[75]
This was also an impressive witness.
Conclusionary
remarks
[76]
I have already dealt with the provisions of section 109 and section
115 of the FACA. On a general reading of the evidence,
and for the
reasons mentioned, this was not a compliance inspection in terms of
section 109. In any event, it could not have been,
because it is
common cause that the plaintiff was not the holder of "a licence
in respect of firearms used for business purposes
referred to in
section 20" as intended by the provisions of section 109(1 )(g).
Consequently, to the extent that the defendant
insists that it was a
section 109 inspection, I find that such an operation was unlawful,
for the reasons mentioned.
[57]
As to section 115, I have come to the conclusion, and I find, that
the operation was akin to a section 115 "inspection,
search and
seizure for enquiry or investigation".
I
have pointed out the difficulty from the point of view of the
defendant that there was no special warrant issued as required by
the
provisions of section 115. The alternative to operate in terms of
this section without a warrant, as provided for in section
115(4)(b),
does not apply, neither did the defendant contend that it applies.
Inasmuch as the operation may have been intended
to be a section 115
inspection, it is also, for the reasons mentioned, my conclusion that
it was unlawful.
[58]
In my view, if the operation was unlawful, where it flew in the face
of both section 109 and section 115, the arrest flowing
from this
operation would also have been unlawful.
[59]
In addition, I have concluded that the arrest was in any event
unlawful for lack of compliance with the requirements of section
40
of the CPA. I have detailed the applicable authorities.
[80]
Against this background, I find that the defendant failed to
discharge the onus to prove that the arrest was lawful. The same
would apply to the subsequent detention. Consequently, the action
must succeed.
The
order
[81]
I make the following order:
1.
It is declared that the defendant is liable to compensate the
plaintiff for any damages which may be proved flowing from the
plaintiffs arrest and detention on 21 and 22 August 2008.
2.
The defendant is ordered to pay the plaintiffs costs.
W
R C PRINSLOO
JUDGE
OF THE NORTH GAUTENG HIGH COURT
46179-2011
HEARD
ON: 4 - 15 OCTOBER 2012
FOR
THE PLAINTIFF: J C ERASMUS
INSTRUCTED
BY: AZAR & HAVENGA
FOR
THE DEFENDANT: F I BALOYI
INSTRUCTED
BY: STATE ATTORNEY