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[2013] ZAGPPHC 122
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Mhlongo v Minister of Police (24029/2011) [2013] ZAGPPHC 122 (15 May 2013)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG DIVISION, PRETORIA)
CASE
NUMBER: 24029/2011
DATE:15/05/2013
In
the matter between:
MHLONGO,
S
.............................................................................................................
PLAINTIFF
and
THE
MINISTER OF
POLICE
.....................................................................................
DEFENDANT
JUDGMENT
STRIJDOM
AJ
(A)
INTRODUCTION:
1.
The Plaintiffs claim is for damages for alleged wrongful and unlawful
arrest and detention. Plaintiff claims damages of R9,928,300.00
(nine
million nine hundred and twenty eight thousand three hundred rand)
Plaintiff was arrested by Constable Banda in Witbank on
23 November
2009 and he was released from custody on 8 June 2010 after the State
declined to prosecute.
2.
The Defendant has conceded the arrest
and detention of the Plaintiff by the Defendant’s members.
Defendant denies the allegation
that the Plaintiff was wrongfully and
unlawfully arrested and detained.
3.
The Defendant has raised a defence
relying upon section 40(1 )(b) of the
Criminal Procedure Act no 51 of
1977
. The salient wording of
section 40(1
)(b) reads:
“
(1)
A peace officer may without warrant arrest any person:
(a)
(b)
whom he reasonably suspects of having
committed an offence referred to in Schedule
1.....................................................................................
”
Forgery
is a Schedule 1 offence.
DEFENITION
OF FORGERY:
4.
In his book Criminal Law, 2
nd
ed CR Snyman discuss the difference between fraud and forgery. He
states on p514:
“
Whereas
fraud is completed only when misrepresentation has come to the notice
of the representee, forgery is completed the
moment
the documentation is falsified.......... The falsification can be
achieved in many ways, for example by the alteration, erasure,
substitution or addition of particulars on the document or by
endorsement, but not by the destruction of the whole document. ”
5.
In terms of
Section 31(1
)(d) of the
Births and Deaths Registration Act No 51 of 1992
it is an offence for
any person to falsely make or counterfeits or causes to be falsely
made or counterfeited any document or record
mentioned in the Act.
6.
Section 31(2)
reads:
“
If
in any proceedings the question arises whether, or it is alleged
that, any person obtained in contravention of the provisions
of this
Act any certificate which has been or may be issued in terms of this
Act, and such certificate is forged or spurious, such
person shall be
presumed to have so obtained such certificate and it shall be
presumed that such certificate is forged or spurious
until the
contrary is proved. ”
7.
The Plaintiff admitted that the birth
certificate was issued by Home Affairs without a photograph.
Plaintiff also admitted that
he was the one who had affixed his
photograph of himself to the birth certificate.
8.
Section 18(1)
of the
Identification Act
No 68 of 1997
provides that:
“
No
person shall -
(e)
Imitate, alter, deface, destroy or mutilate any identity card
certificate
(i)
Posses any identity card, a certificate or temporary identity
certificate which has been initiated, altered, defaced or mutilated
”
The
definition in the
Identification Act means
a birth, death or marriage
certificate.
COMMON
CAUSE FACTS:
9.
The Plaintiff was arrested in the
Witbank branch of Standard Bank after the branch manager contacted
the Police.
10.
Plaintiff was in possession of a birth
certificate to which his own passport size photograph was affixed.
11.
The forenames, surname and identity
number depicted on the birth certificate resembled that of
complainant Mhlongo.
PLAINTIFFS
CASE:
12.
Plaintiff testified that he had lost his
original identity book in February 2009. he waited some four to five
months before he could
apply for a replacement identity book.
13.
He was in the bank in Witbank for an
inquiry for deposits and withdrawals which were allegedly made to his
bank account, He had
revived this banking account, which lied dormant
in July 2009 because his employer wanted to deposit his wages into
it, however,
his employer did not take Plaintiffs banking details.
14.
He conclude that at the end of October
2009 a sum of R6,500.00 was deposited into his account and he did not
know where the money
came from. He made inquiries at the Gezina
branch of the bank. His bank cards were confiscated. He was then
referred to the branch
in Witbank where his banking account was kept.
He had the birth certificate with his photograph affixed thereon with
him when he
went to Witbank.
DEFENDANTS
CASE:
15.
Constable Banda’s evidence, which
is largely uncontested, testified that he called the Plaintiff aside
at the bank in Witbank
and requested him to recite the particulars on
the birth certificate. He did likewise with complainant Mhlongo.
16.
He decided to take the Plaintiff and
complainant Mhlongo to the Office of home Affairs in Witbank in order
to verify their identities.
Each one had put his thumb print on a
scanner at the Office of Home Affairs.
17.
The Plaintiff’s forenames,
surname, identity number, fingerprints and photographs did not show
on the screen. The particulars
of complainant Mhlongo showed on the
screen.
18.
Thereafter Constable Banda informed the
Plaintiff that he was arresting him for forgery of the birth
certificate that was not his.
19.
Constable Tembi Ngwenya testified that
she accompanied Constable Banda to Home Affairs to find out who the
rightful owner was of
the birth certificate and that no data of the
Plaintiff appeared in the computer’s screen. She confirmed the
evidence of
Constable Banda.
20.
Constable Madiba testified that she
received the case docket for further investigation and the case was
later withdrawn by the prosecutor.
THE
UNLAWFULLNESS OF THE ARREST:
21.
It is trite that the onus rested on the
Defendant to justify the Plaintiffs arrest. The question is: did
Constable Banda entertain
a reasonable suspicion that the Plaintiff
has committed an offence of forgery?
22.
In Minister of Safety and
Security v Sekhoto and Another (131/10)
[2010]
ZA SCA 141
his Lordship Harms DP stated:
“
As
was held in Duncan v Minister of Law and Order, the jurisdictional
facts fora section 40 (1) (b) defence are that:
(i)
The arrestor must be a peace officer;
(ii)
The arrestor must entertain a suspicion;
(iii)
The suspicion must be that the suspect (the arrestee) committed an
offence referred to in Schedule 1; and
(iv)
The suspicion must rest on reasonable grounds
............
”
23.
In Duncan
v Minister of Law and Order
1986 (2) SA 805
(A) his Lordship Van
Heerden JA (as he then was) said:
“
If
the jurisdictional requirements are satisfied, the peace officer may
invoke the power conferred by the subsection, i.e. he may
arrest the
suspect. In other words he then has a discretion as to whether or not
to exercise that power. ”
He
continued:“.............. an arrest is unlawful if the arrestor
has no intention of bringing the arrestee before a court/'
24
Constable Banda testified that he
suspected the Plaintiff to have committed forgery after seeing the
Plaintiffs photograph on the
birth certificate. To him it was
suspicious and unusual and not done by Home Affairs.
25.
What acerbated his suspicion was that
the Plaintiffs particulars were not displayed on the screen after he
had placed his thumb
print on the scanner.
26.
Constable Banda’s evidence was not
seriously contested in cross- examination by Counsel for the
Plaintiff. He did not contradict
himself or other witnesses and his
evidence was corroborated by Constable Tembi Ngwenya.
27.
Counsel for the Plaintiff submitted that
Constable Banda was obliged before arresting the Plaintiff to
evaluate the objective facts
at his disposal and that the suspicion
formulated by Banda was not founded on a reasonable ground and
accordingly the arrest was
unlawful.
28.
In my view, considering the evidence of
the Plaintiff and the Defendant the suspicion which Constable Banda
entertained was not
arbitrary. He checked the information at his
disposal by taking the Plaintiff and the complainant Mhlongo to the
Office of Home
Affairs for verification of their particulars.
29.
All the
four jurisdictional facts were met, and the discretion to arrest was
properly exercised. In my view the arrest was lawful
and justified.
THE
DETENTION:
30.
The further detention of the Plaintiff
in custody was authorised by the Magistrate on 24 November 2009.
31.
The case was postponed for further
investigations. On 24 December 2009 the Plaintiff was granted bail of
R1,500.00 which he could
not rise. He remained in custody until he
was released on 8 June 2010 when the case was provisionally
withdrawn.
32.
In Isaacs v Minister van Wet en
Orcte
1996 (1) ALL SA 343
(A) the
Court had to decide whether the appearance of the Appellant before
the Magistrate ended the unlawful detention.
33.
The Court considered the provisions of
Section 50(11)
of the
Criminal Procedure Act 51 of 1977
and held that
the purpose of this subsection was twofold: to ensure that the
arrested person appeared before Court as soon as possible
after the
arrest, and to allow the Court to order the further detention of the
arrested person for the purposes of the trial. The
Court found that
the Magistrate was competent to order the further detention of the
Appellant and such detention was lawful.
34.
In my view the further detention of the
Plaintiff until 8 June 2010 was ordered by the Magistrate and was
lawful.
35.
If the further detention was unlawful,
action should have been instituted against the Minister of Justice
and not the Minister of
Police.
36.
In Minister of Safety and
Security v Sekhoto and Another supra the Court stated:
“
Once
an arrest has been affected the peace officer must bring the arrestee
before a court as soon as reasonably possible and at
least within 48
hours. Once that has been
arrest
has been exhausted. The authority to detain the suspect further is
then within the discretion of the Court.”
37.
It follows that the Plaintiffs claim is dismissed with costs.
SIGNED
AT PRETORIA ON THIS THE 15
th
DAY OF MAY 2013
JJ
STRYDOM
ACTING
JUDGE: NORTH GAUTENG HIGH COURT
COUNSEL
FOR PLAINTIFF: ADV MOHLABA
ATTORNEYS
FOR PLAINTIFF:MOHLABA & MOSHOANA INC
COUNSEL
FOR DEFENDANT: ADV MOHLANMONYANE
ATTORNEYS
FOR DEFENDANT: STATE ATTORNEY