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[2013] ZAGPPHC 524
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Seema v Minister of Police (70842/11) [2013] ZAGPPHC 524 (23 May 2013)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE NO: 70842/11
DATE: 23 MAY 2013
In the matter
between:
RAISIBE
TINY
SEEMA
.......................................................................................................................
Plaintiff
and
MINISTER
OF
POLICE
...................................................................................................................
Defendant
JUDGMENT
TEFFO. J;
[1] The plaintiff
instituted an action for damages against the defendant for unlawful
arrest, unlawful detention, assault and malicious
prosecution after
she was arrested without a warrant and detained by members of the
South African Police Service (SAPS) on a charge
of unlawful
possession of a firearm at the Atteridgeviile Police Station.
[2] It is alleged
that at the time of her arrest she was assaulted by members of the
SAPS in the course and scope of their employment
with the defendant.
[3] The plaintiff
further alleges that she was maliciously prosecuted.
[4] The defendant
denies the allegations.
[5] The parties
agreed that the issues of quantum and merits be separated. I
accordingly made an order in terms of Rule 33(4) of
the Uniform Rules
of Court postponing the issue of quantum for later determination. The
trial then proceeded only on the issue
of liability.
[6] The following
facts are common cause between the parties:
6.1 The plaintiff
and her husband were arrested at their homestead on 6 September 2011
after members of the SAPS searched their
premises without a warrant
and found a 303 rifle with ammunition and 2 X small 9mm round while
they did not have a licence to possess
the aforesaid articles.
6.2 They were both
detained at the Atteridgeviile police cells.
6.3 They were both
charged for unlawful possession of a firearm and ammunition and
appeared at the Atteridgeville Magistrate’s
court.
6.4 Charges against
the plaintiff were subsequently withdrawn.
[7] Two witnesses
testified on behalf of the defendant while the plaintiff adduced
evidence on her own to prove the allegations
and did not call any
witnesses.
[8] The evidence led
in this matter is briefly as follows: Sello Ambros Mogale (Sgt
Mogale) testified that he is a member of the
SAPS, holds the rank of
Sergeant and is stationed at Silverton SAPS, Pretoria, K9. On 6
September 2011 during the night while on
duty, he was given an
address and information that at that address there were unlicensed
firearms. He together with his crew immediately
drove to the address
and entered the yard of a squatter camp through the gate and knocked
at the door. They identified themselves
as police officers. The
occupants of that homestead took about 15 minutes to open the door.
Upon realising that they were not opening
the door, they forced the
door open, entered the three roomed shack. Upon entering the first
room of the shack they met the man
of the shack, introduced
themselves to him and explained the purpose of their visit.
[9] They
subsequently asked for permission to search the shack. He gave them
permission and told them that he had no knowledge of
the presence of
firearms in his shack. They also asked him as to how many occupants
were there in the shack and he said it was
him and his wife only at
the time. His wife was in the bedroom while they were with him in the
first room. Capt Motshwane informed
his wife (the plaintiff) to
dress. She came to them dressed. They also explained to her the
reason for their visit. They entered
the bedroom where they were
sleeping and started searching. Nothing was found in their bedroom.
They proceeded to another bedroom
where they also searched. At that
time he was in the company of Constable Moyana and as they were
searching, they were with the
plaintiff’s husband. He searched
the left side of the room while Const Moyana searched the right side.
In that room there
were two beds. He pulled one of the beds’
mattresses up. He was surprised to find a 303 rifle (firearm) with a
magazine which
had eight life ammunitions on it. The plaintiff’s
husband who was with him at the time was also surprised as to how
that
firearm came to their shack. He proceeded to search on the wall
following the information he had. He did not find any firearm there
but he could see that a small pistol stays there.
[10] At the time he
found the aforesaid firearm the plaintiff was in the dining room. The
firearm was also shown to the plaintiff.
When they asked the
plaintiff and her husband about the firearm, they said they knew
nothing about it.
[11] Const Moyana
also recovered a two life ammunition from a small pistol. At that
time the plaintiff’s husband started crying,
hit his head
against the bedroom door and he suddenly realised that he was
bleeding. When he asked him what was he doing, he informed
him that
on the previous occasion there was a house breaking at his shack and
that he was surprised that the police came to search
his shack.
Further that it was better for him to commit suicide as he had
problems. He then explained to the plaintiff and her
husband that he
was arresting them for unlawful possession of a firearm and
ammunition. He arrested them and they were detained
at the
Atteridgeville police station. He did not know if they had appeared
in court. He did not have a search warrant to search
the premises.
[12] Under cross
examination he testified that he received information that there were
firearms at the plaintiff’s shack and
that the plaintiff’s
husband has a friend who resided at an address he had who was also in
possession of a firearm. They
entered the first address which they
searched and found a rifle (firearm) and a magazine which had life
ammunition but could not
recall how many they were. They asked the
plaintiffs husband’s friend as to where was the other firearm.
He gave them the
address of the plaintiff, which address was the same
as the one they got from the informer. Subsequent thereto they
proceeded to
the plaintiffs address. The person they first arrested
told them that there was a small pistol at the plaintiff’s
homestead
on the wall. They went to the plaintiff’s homestead
to search and the arrest would only emanate from the results of the
search.
It was put to him that nothing prevented him from getting a
search warrant before they proceeded to search. His response was that
they received the information midnight and after receiving it, they
realised that it was going to take them time to apply for the
search
warrant. He stated that as a police officer he has never applied for
a search warrant. He further stated that the items
mentioned were
movables and could be disposed of quickly.
[13] As the
occupants of the shack took 15 minutes and more to open the door,
they pushed the door open and four of them entered
the house, while
one was on the door and the other one was at a corner.
[14] Capt. Motshwane
informed the plaintiff to dress because at the time they entered
their shack, the plaintiff and her husband
were asleep. He conceded
that they gained entry into the shack, viz, the first room, with
force but denied the use of any force
thereafter except to say that
after they had met the plaintiff’s husband who informed them
that the house was occupied by
him and his wife, Captain Motshwane
told the plaintiff to dress. The plaintiff then came and the reason
for their visit was also
explained to them. From there they started
searching. They searched the shack in the presence of the plaintiffs
husband and the
plaintiff was in the dining room at the time.
[15] When he was
asked as to why they had left the plaintiff in the dining room when
they searched the house and then arrested her
for possession of an
unlicensed firearm, he explained that they arrested the plaintiff and
her husband because when they asked
them as to how did the firearm
come to the shack, they all said they knew nothing about it and they
were the only occupants of
that shack at the time. Her husband told
them that the firearm was placed in the shack by people who committed
a housebreaking
at their shack previously. He disputed that when he
searched the shack, the plaintiff’s husband was a suspect
because at
that stage he did not have evidence to link him with the
allegations. He was at that time following the information to prove
the
allegations. He did not believe the plaintiff’s husband
when he told him after he found the firearm about a previous
housebreaking
at his shack. He did not investigate the information
about the alleged housebreaking.
[16] He disputed
that he encroached upon the plaintiff and her husband’s rights.
He maintained that even though he was furnished
with their address,
he did not know their names. He also disputed that it would have been
easier for him to take the recovered
items and summoned them to court
after an investigation. They arrived at the plaintiff’s
premises after 24:00 and when they
entered their shack they were in
possession of torches which they always use when they are on night
duty. When they were searching
the shack, they used torches. He could
not remember if the electricity was on at that shack but the light
was on which was switched
on by the plaintiffs husband when they met
him.
[17] He disputed
hearing the plaintiff’s husband asking who they were when they
were knocking at the door and that the door
was kicked. He also
disputed that they stormed into their shack, into the bedroom where
the plaintiff and her husband were sleeping,
flashed them with
torches, ordered them to remain still while they woke the plaintiff
up, started assaulting her husband thereby
choking him on his body
and thighs. He further disputed that the plaintiff was naked at the
time when she was told to dress. He
disputed that the plaintiff was
assaulted with open hands in his presence while torches were flashed
in her eyes. He disputed that
one black police officer took off the
blanket that the plaintiff covered herself with from her and she
stood up from the bed. He
also disputed that one of their members
slapped the plaintiff on her bums, calling her a bitch and saying she
was curvaceous while
she was naked at the time. He further disputed
that the plaintiff dressed up in their presence and went to the
children’s
bedroom where they asked her what did she know about
firearms.
[18] He conceded
that the shack together with the plaintiffs husband’s motor
vehicle were searched. He explained that he forgot
to mention that
the plaintiff’s husband’s motor vehicle was also searched
in his evidence in chief as he did not include
this evidence in his
written statement. He disputed that they took water from the dustbin
that was on the stoep and poured it on
the body of the plaintiff’s
husband. He also disputed the plaintiff’s version about how
they recovered the firearm
in that they did not call her and her
husband from their bedroom to tell them that they found a firearm but
that it was found while
they were with her husband.
[19] He was referred
to paragraph 4 of his arresting statement and asked where on the
statement does he state that the plaintiff’s
husband gave them
permission to search the house. He explained that he did not include
that in his statement although the plaintiff’s
husband gave
them permission when they spoke to him face to face. He further
stated that they were impatient when they were knocking
at the door
and no one was opening because they believed that the plaintiff’s
husband had dangerous weapons. He conceded
that in his statement he
did not mention that Captain Motshwane told the plaintiff to dress.
He also conceded that he did not mention
anything on his statement
regarding visibility at the time and that they were using torches
when they searched the plaintiffs shack.
[20] He disputed
that based on the information that the plaintiff’s husband told
him that their shack was previously broken
into, he could not have
formulated a reasonable suspicion that the plaintiff was in
possession of a firearm. He maintained that
the position in which
they found the firearm and the ammunition, he found it unnecessary to
investigate the housebreaking incident.
He disputed that when he
arrested the plaintiff he ought to have known that on the facts there
was no reasonable basis to arrest
her. He also disputed that when he
took her to the police station, he ought to have known that there was
no probable cause for
her to be prosecuted for what she was charged
for. He conceded that when he took her to the police station he
wanted her to face
a charge of unlawful possession of a firearm. He
was adamant that after he received information from the first suspect
he had reasonable
belief to suspect that the plaintiff was in
unlawful possession of a firearm.
He stated that he
did not know how the case against the plaintiff ended when he was
told that the charges were withdrawn on 20 September
2011.
[21] He further
disputed that his conduct as a police officer resulted in the
plaintiff facing malicious prosecution. When it was
put to him that
had he verified the information about an alleged previous
housebreaking at the plaintiffs shack, it could have
been possible
that those firearms could have been left by the housebreakers at that
shack as he also testified that both the plaintiff
and her husband
were surprised when the firearm was found there, he maintained that
he did not find it necessary to investigate
the allegations about the
housebreaking and that he did not have proof that the firearm was
left by the housebreakers at the plaintiffs
shack. He disputed that
the arrest of the plaintiff was unlawful and that he encroached upon
her constitutional rights when he
arrested her.
[22] W/O David
Shibambo also testified. He was the investigating officer in the
criminal matter that was opened against the plaintiff.
He met the
plaintiff and her husband in the cells on 8 September 2011 when he
charged them with unlawful possession of a firearm
and ammunition. At
that time he had sight of the firearm and the ammunition. The
plaintiff never complained to him about an assault
by members of the
SAPS. In any event if the plaintiff had a complaint, senior officers
visit the cells every hour. They ask if
prisoners have complaints and
each and every complaint is recorded in the occurrence book. Where an
assault has been reported,
the senior police officer will assist the
prisoner to lay such charges. No charges of assault had been laid by
the plaintiff against
the police.
[23] On 9 September
2011 he took the plaintiff and her husband to court and the
plaintiffs husband told the prosecutor in his presence
that he is the
owner of the firearm and the ammunition which was found at their
shack and that the plaintiff knew nothing about
them. The charges
against the plaintiff were then withdrawn. He did not examine the
firearm to check if it could take out a projector
or was active
[24] Under cross
examination he testified that the information that he had at his
disposal when he charged them was a statement
by the arresting
officer that they were found in possession of unlicensed firearm and
ammunition. He interviewed them before he
decided to charge them and
they informed him that they would make their statements in court.
When he was told that the plaintiff
will testify that on 9 September
2011 no charges were withdrawn against her and that she was taken to
Pretoria prison, she conceded
that she cannot mention it as a fact
that the charges were withdrawn on that day but can only say that the
prosecutor told her
that the charges were going to be withdrawn
against the plaintiff. He ultimately conceded that the charges
against the plaintiff
were withdrawn on 20 September 2011. He did not
comment when he was shown exhibit B4 where it was stated that bail
was fixed in
favour of the plaintiff for an amount of R500,00 on 15
September 2011.
[25] He conceded
that he did not know what happened at the scene of the arrest as he
was not present when the plaintiff and her
husband were arrested and
could not comment about whether the plaintiff was assaulted or not.
He disputed that there was nothing
linking the plaintiff with the
unlawful possession of a firearm and ammunition on the statement of
the arresting officer. He also
disputed that the statement only
refers to the plaintiff’s husband. He did not comment when he
was referred to paragraphs
3 and 4 of the arresting officer’s
statement. I will deal with the statement later on when I analyse the
evidence.
[26] He disputed
that at that time he ought to have known that there was nothing
against the plaintiff but proceeded to charge her.
He was also
referred to paragraph 5 of the statement, the first three lines, and
told that the statement refers to one person but
he proceeded to
charge both. He disagreed and said the firearm was found in the shack
where the plaintiff and her husband resided.
He conceded that he had
a discretion to charge or not to charge the plaintiff but disputed
that he did not have a probable cause
to charge her as there was no
need for her to be prosecuted. He has been a member of the SAPS for
27 years and has been an Investigating
Officer for 22 years, 12 years
of which he has been a Warrant Officer.
[27] Tiny Raisibe
Seema (the plaintiff) testified as follows: She is 31 years old and
at the time of her arrest she was 29 years
old. On 6 September 2011
midnight while she and her husband were asleep in their bedroom, they
heard a sound like people were kicking
the door. Her husband asked
who were they, they said they were the ‘police’. They
told them to stay still as they entered
their bedroom thereby
eliminating them with torches. They ordered them to wake up. They
choked her husband on the thigh and at
the back asking him about the
firearm. She was also ordered to wake up and she informed the police
that she was not dressed. One
police officer slapped her with an open
hand on her face and took off the blanket she had covered herself
with.
[28] When she woke
up he slapped her on her bums and said she was curvaceous and a
bitch. She dressed infront of them and they took
her to the
children’s bedroom. They asked her what did she know about a
firearm. She told them she knew nothing. They asked
her if she never
saw it and she said ‘no’. They then started searching
their three bedroomed shack. They started at
the children’s
bedroom and they did not find what they were looking for. She and her
husband moved from room to room with
them. They also went outside
where they searched inside her husband’s motor vehicle to wit,
a Ford Sierra. They also did
not find anything. Other police officers
were on the side. They spoke softly. She did not hear what they were
saying. Her husband
was initially assaulted and choked inside the
shack. They also choked him on the stoep. There was a dustbin with
water on the stoep.
They poured her husband with water from the
dustbin while choking him. They did that as they were going out to
search the motor
vehicle.
[29] As they kept on
talking, she and her husband went inside the shack into their bedroom
as they realised that the police did
not find what they were looking
for. The police also came in the dining room. They said a ‘firearm’.
Her husband asked
them where did they find it. They said they found
it in the children's bedroom. Her husband then told them that the
firearm was
not his, why did they search and not find it. They then
took them and said they were going to lock them up as her husband
said
the firearm did not belong to him. She conceded that when they
were shown the firearm they were surprised. Her husband also told
them that they previously had a housebreaking in their shack. She
confirmed that prior to their arrest, their shack was broken
into and
cash in the sum of R200.00 and tekkies were stolen while her identity
document was torn apart. They did not open a case
of housebreaking.
[30] She did not
bear any knowledge of a firearm in their shack.
[31] She was granted
bail and charges against her were withdrawn. The police came to their
shack knowing what they were looking
for and from whom. They ended up
arresting her while she knew nothing about the firearm. She does not
know why the charges were
dropped against her. The police officers
who were at her shack were more than six or seven. She cannot
identify the police officer
who hit her on her bums as they
eliminated them with torches.
[32] Under cross
examination she testified that she stays with her husband at that
shack and she has been staying there for nine
years. She did not see
the firearm when it was found as she was not with them when it was
found. She saw it after it was found
before she was taken into the
SAPS motor vehicle. She also did not see the ammunition. In the shack
a candle light was on. She
did not sustain visible injuries and she
never laid charges of common assault or indecent assault after the
incident. She did not
complain to anybody else about the assault but
she went to her attorney after her release from custody. When asked
what did she
expect the police to do after she and her husband denied
knowledge of the firearm after it was found in their shack, she said
the
police came to their shack knowing that what they were looking
for was with her husband. They should not have arrested her. She
was
adamant that the police should not have arrested both of them. She
then asked who was going to look after their children as
they were
visiting her mother at the time. She confirmed that she and her
husband did not have licenses to possess a firearm.
[33] The issues for
determination are whether the arrest and the detention of the
plaintiff were unlawful, whether she was indeed
assaulted as she
alleged and whether she was maliciously prosecuted.
[34] Section
40(1)(b) of Act 51 of 1977 (“the Criminal Procedure Act”)
provides that a peace officer may without a warrant
arrest any person
whom he reasonably suspects of having committed an offence referred
to in Schedule 1, other than the offence
of escaping from lawful
custody.
[35]
As was held in
Duncan
v Minister of Law and Order
[1986] ZASCA 24
;
[1986] 2 ALL SA 241
(A)
the
jurisdictional facts for a section 40(1 )(b) defence are the
following:
35.1 The arrestor
must be a peace officer;
35.2 The arrestor
must entertain a suspicion;
35.3 The suspicion
must be that the suspect (arrestee) committed an offence referred to
in Schedule 1; and
35.4 The suspicion
must rest on reasonable grounds.
[36]
It is trite that the onus rests on the defendant to justify an
arrest. As Rabie CJ explained in
Minister
of Law and Order and Others v Hurley and Another
1986 (3) SA 568
A at
589E-F.
“
An
arrest constitutes interference with the liberty of the individual
concerned, and it therefore seems fair and just to require
that the
person who arrested or caused the arrest of another person should
bear the onus of proving that his action was justified
in law”.
[37]
In
Zealand v
Minister of Justice and Constitutional Development and Another
[2008] ZACC 3
;
2008
(6) BCLR 601
(CC)
the
Constitutional Court in affirming this principle said:
“
It
has long been firmly established in our common law that every
interference with physical liberty is prima facie unlawful. Thus
,
once
the claimant establishes that an interference has occurred, the
burden falls upon the person causing that interference to establish
a
ground of justification”.
[38]
Once the required jurisdictional facts are present, the discretion
whether or not to arrest arises. The officer, it should
be
emphasises, is not obliged to arrest. This was made clear by the
Supreme Court of Appeal in
Minister
of Safety and Security v Sekhoto and Another
2011 (1) SACR 315
(SCA)
in
relation to section 43 as referred to in
Groenewald
v Minister of Justice
1973 (3) SA 877
at 883 G - 884B.
[39]
Van Heerden JA in
Duncan
v Minister of Law and Order at 818 H-J
referred
to
supra
said
the following:
“
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 (of
Holgate
-
Mohammed
v Duke E
[1984] 1 ALL ER 1054
HL at 1057). No doubt the discretion
must be property exercised”.
[40]
In
R v Van Heerden
1958 (3) SA 150
(T)
the
court held that the suspicion must be reasonable and the test for
such reasonableness is objective.
[41]
The approach to be adopted in considering whether the suspicion was
reasonable is the one followed by Jones J in
Mabona
and Another v Minister of Law and Order and Others
1988 (2) SA 654
(SE) at 658 F-H:
“
It
seems that in evaluating his information a reasonable man would bear
in mind that the section authorises drastic police action.
It
authorises an arrest on the strength of a suspicion and without the
need to swear out a warrant;
i.e. something
which otherwise would be an invasion of private rights and personal
liberty. 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 This is not to
say that the information at his disposal must be of sufficient high
quality and cogency to engender
in him a conviction that the suspect
is in fact guilty. The section requires suspicion but not certainty.
However, the suspicion
must be based on solid grounds. Otherwise, it
will be flighty or arbitrary and not a reasonable suspicion”.
[43]
At paragraph 25 of its judgment the court in
Sekhoto
matter
referred to
supra
held
as follows:
“
It
could hardly be suggested that an arrest under the circumstances set
out in section 40(1 )(b) could amount to a deprivation of
freedom
which is arbitrary or without just cause, in conflict with the Bill
of Rights. A lawful arrest cannot be arbitrary”.
The court when on at
paragraph 44 of the judgment to say the following:
“
While
the purpose of arrest is to bring the suspect to trial, the arrestor
has a limited role in that process. He or she is not
called upon to
determine whether the suspect ought to be detained pending a trial.
That is the role of the court (or in some cases
a senior officer).
The purpose of arrest is no more than to bring the suspect before the
court (or the senior officer) so as to
enable that roie to be
performed. It seems to me to follow that the enquiry to be made by
the peace officer is not how best to
bring the suspect to trial: the
enquiry is only whether the case is one in which that decision ought
properly to be made by a court
(or the senior officer). Whether his
decision on that question is rational naturally depends upon the
particular facts, but it
is clear that in cases of serious crime
-
and
those listed in Schedule 1 are serious, not only because the
legislature thought so
-
a
peace officer could seldom be criticised for arresting a suspect for
that purpose.
[44]
Innes ACJ articulated the following principle in
Shadiack
v Union Government (Minister of Interior)
1912 AD 642
at 651 - 652:
“
Now
it is settled law that where a matter is left to the discretion or
the determination of a public officer
;
and
where his discretion has been bona fide exercised or his judgment
bona fide expressed, the Court will not interfere with the
result.
Not being a judicial functionary no appeal or review in the ordinary
sense would He, and if he has duly and honestly applied
himself to
the question which has been left to his discretion, it is impossible
for a Court of Law either to make him change his
mind or to
substitute its conclusion for its own... There are circumstances in
which interference would be possible and right.
If for instance such
an officer had acted mala fide or from ulterior and improper motives,
if he had not applied his mind to the
matter or exercised his
discretion at all, or if he had disregarded the express provisions of
a statute - in such cases the court
might grant relief. But it would
be unable to interfere with a due and honest exercise of discretion,
even if it considered the
decision inequitable or wrong”.
[45]
In
Minister of
Justice and Constitutional Development v Moleko
[2008] 3 ALL SA 47
(SCA)
it
was held that in order to succeed on the merits with a claim for
malicious prosecution, a claimant must allege and prove:
45.1 that the
defendant set the law in motion (instigated or instituted the
proceedings);
45.2 that the
defendant acted without reasonable and probable cause;
45.3
that the defendant acted with “malice” (or
animo
injuriandi)\
and
45.4 that the
prosecution has failed.
[46]
In
Rudolph and
Others v Minister of Safety and Security and Another
[2009] 3 ALL SA
323
(SCA)
the
court with approval referred to the cases of
Moaki
v Reckitt & Cofman (Africa) Ltd and Another
[1968] 3 ALL SA 242
and Prinsloo and Another v Newman
[1975] 2 ALL SA 89
and
said:
“
the
requirements of ‘malice’ have been the subject of
discussion in a number of cases in this court. The approach now
adopted by this court is that, although the express ’malice’
is used, the claimant’s remedy in a claim for malicious
prosecution lies under the actio injuriarum and that what has to be
proved in this regard is animus injuriandi”.
[47]
In the
Moleko
matter
referred to
supra,
the
following was said:
“
The
defendant must thus not only have been aware of what he or she was
doing in instituting or initiating the prosecution, but must
at least
have foreseen the possibility that he or she was acting wrongfully,
but nevertheless have continued to at, reckless as
to the
consequences of his or her conduct (dolus eventuarlis). Negligence on
the part of the defendant (or, I would say, even gross
negligence)
will not suffice”.
[48] The statement
of the arresting officer, Sgt Mohale, reads:
“
3.
At
approximately 00:00 I received information from my informer that at
Brazzaville there is someone in possession of unlicensed
firearm and
ammunition. I immediately went with my colleagues to the address at
Block ZM 347 Brazzaville in Saulsville. On our
arrival we knocked on
the door, introduced ourselves by telling the person inside the house
that we are members of the SAPS from
Pretoria Dog Unit and that we
are at his place to search in the house.
4.
The person in the house did not open immediately. He took about 15
minutes and we forced the door open and entered, and again
I told him
that we are at his place to search because we have information that
he is in possession of unlicensed firearm. Mr Steve
Masonganyi 39
was
together with his
wife in the house, Mrs Tiny Seema 30 years.
4.
The person in the house did not open immediately. He took about 15
minutes and we forced the door open and entered, and again
I told him
that we are at his place to search because we have information that
he is in possession of unlicensed firearm. Mr Steve
Masonganyi 39 was
together with his wife in the house, Mrs Tiny Seema 30 years
.
5.
I asked Mr Steve
if he knows anything about the firearm and he told me that he does
not know anything and that he is working for
his family at Coke
Company, we then started searching in the shack which
was
three roomed.
While busy searching in the room where they were sleeping we found
nothing and we went to the other sleeping room
where there was no one
inside and under the mattress I recovered 1 X 303 rifle with serial
no 013376, 1 X Magazine containing 8
X life ammunition. I asked Mr
Steve who is the owner of those and also his wife but they both said
they don’t know how did
all these come into their house. On the
other bed my crew was busy searching. He also recovered 2 X small
round (9mm round).
6. Mr Steve
started shouting at us and he banged his head with the room door and
he got injured open wound. I asked him why is he
doing that that he
said he want to kill himself because he has some problems. He said
last time the thugs came into his house and
do housebreaking. Now the
police again are searching his house. So he wants to die and rest I
told them that both of them are under
arrest for possession of an
unlicensed firearm and ammunition”.
[49] The evidence of
the two police officers who testified on behalf of the defendant was
straight to the point. It was honest,
credible and could be relied
upon even though there were minor discrepancies as against that of
the plaintiff which evidence was
not corroborated or supported by any
evidence and not probable. The crux of the defendant’s evidence
is that the arresting
officer received information together with an
address where it was alleged that someone was in possession of
firearms unlawfully.
The information was followed at that address and
indeed a firearm and ammunition were found. When the plaintiff and
her husband
who were the occupants of that homestead where the
ammunition and the firearm were found, were asked as to whom did the
articles
belong, they both said they knew nothing about them. Both of
them did not have licenses to possess the articles in question.
[50] On the other
hand the plaintiff alleges that when the firearm was found, she and
her husband were not with the police officers.
She creates the
impression that because the shack was initially searched before her
husband’s motor vehicle was searched
outside the shack, the
police could have come with the firearm to the shack and then
maintain that it was found in there. To support
this her evidence
reads:
"As they
kept on talking, she and her husband went inside the shack into their
bedroom as they realised that the police did
not find what they were
looking for The police also came in the dining room. They said ‘a
firearm’. Her husband asked
where did they find it They said it
was found in the children’s bedroom. Her husband then told them
that the firearm was
not his, why did they search and not find if.
Strange enough with
her evidence, the evidence of Sgt. Mogale to the effect that as they
searched the different rooms in the shack,
and when they found the
firearm and ammunition her husband was with them, was not contested.
It remained undisputed. In any event
it is not probable that police
who gave evidence that they did not know the people and the place
where they were going to look
for firearms could come with a firearm
and say it belongs to them. They have nothing to gain. From the
evidence nothing was said
about the ammunition. It means the fact
that the ammunition was also found at the plaintiff’s shack is
not contested.
[51]
It is clear from the evidence and the pleadings that the arrest and
the detention of the plaintiff is not in dispute. What
is disputed is
the lawfulness or otherwise of her arrest and detention. Counsel for
the plaintiff submitted that the information
that the arresting
officer had at the time he went to the plaintiff’s investigate
or verify that information, indicates that
he did not analyse and
assess the information at his disposal critically to enable him to
entertain a suspicion that would justify
the arrest of the plaintiff
as required in the
Mabona
matter
referred to
supra.
[52] Although
counsel for the defendant relied on the provisions of section 40
(1)(a) of the Criminal Procedure Act and argued that
the firearm was
found after the police followed information and the plaintiff and her
husband did not have a license to possess
the firearm and ammunition,
I will ignore this argument as it does not tally with the pleadings
and the evidence on record... The
evidence and pleadings refer to
section 40(1 )(b) of the Criminal Procedure Act. According to the
evidence the arresting officer
received information, went to the
address given, searched and found the firearm and the ammunition.
From his testimony, he mentioned
that he received information
relating to two addresses. They went to the first address, searched
and found a firearm and ammunition.
When they arrested the person
found in the first address and asked him for more information about
the firearms, he told them that
the other firearm is at the
plaintiff’s homestead. Taking into account that the address
given by the first person arrested
was the same as that he received
from the informer, they proceeded to the plaintiff’s address.
His evidence was that when
he arrived at the plaintiffs shack he did
not suspect anybody for having committed an offence as he could not
link anyone with
any offence at the time but after the search and
having found the firearm and the ammunition, he arrested the
plaintiff and her
husband as he only suspected them of committing the
offence of unlawful possession of a firearm and ammunition.
[53] From these set
of facts I accept that based on the initial information received from
the informer which was corroborated by
the first person arrested at
the first address, the fact that upon following that information a
firearm and ammunition were found
at a shack occupied by the
plaintiff and her husband and that when they were asked about the
articles, they denied knowledge of
them, they also did not have
licenses to possess a firearm and ammunition, the arresting officer
entertained the suspicion that
the plaintiff and her husband
(arrestees) committed an offence of unlawful possession of a firearm
and ammunition which is a Schedule
1 offence. I do not agree with the
submission by the plaintiff’s counsel that the fact that the
firearm and ammunition were
found at the plaintiff’s homestead
should be ignored. Further to the above his submission that the
suspicion could not be
entertained because the plaintiff was not
mentioned in the information given to the arresting officer as per
statement is without
merit in that the plaintiff and her husband were
the only occupants of the shack when the firearm and ammunition were
recovered.
None of them was able to tell the police to whom the
articles belonged. An issue was raised that Const Moyana should have
been
called to testify as it was alleged that he also found
ammunition in one of the rooms. I do not agree as I find his evidence
to
have been unnecessary as Sgt Mohale who also found the firearm and
the ammunition testified. His evidence was sufficient.
[54] The next
question to ask is whether the suspicion rested on reasonable
grounds. The arresting officer testified that he arrested
the
plaintiff and her husband on the basis that they disputed that they
were the owners of the firearm and the ammunition. He stated
that he
did not investigate the allegation by the plaintiff’s husband
about a previous housebreaking at the premises because
he did not
believe him.
[55]
In
Ramakulukusha v
Commander, Venda National Force 1989 (2)
S/A
813 (V)
it
was held that the test for the requirement in section 40(1 )(b) of
the Criminal Procedure Act for a reasonable suspicion that
a person
to be arrested has committed an offence referred to in Schedule 1 is
whether there has been an investigation into the
essentials relevant
to the particular offence.
The court went on to
say:
“
In
proceedings for wrongful arrest the defendant has to show that after
investigating the essential facts, persons responsible for
the arrest
had a
reasonable
suspicion that the plaintiff committed the offence in question, being
an offence referred to in Schedule 1 to the Act
”
.
[56] The plaintiff
although she confirmed what her husband told the police about the
previous housebreaking at her shack which allegation
was not denied
by the arresting officer that her husband told him about it,
testified that the housebreaking was not reported to
the police.
[57]
From the test as articulated in the
Ramukulukusha
matter
referred to
supra
I
am of the view that the allegation of a previous housebreaking at the
plaintiff’s premises and that the thugs who broke
into the
premises could have left the firearm at the plaintiff’s
premises cannot be regarded as an essential relevant to
the offence.
Further to the above it cannot be probable that a firearm and
ammunition that was found under the mattress can be
said to have been
left at the premises by somebody else, let alone, an intruder. The
fact that the firearm was found under a mattress
in the children’s
bedroom is an indication that either the plaintiff or her husband
knew about it and or how it came about
to be at the premises. The
police officer testified that he did not find any proof that there
was a housebreaking at the plaintiff’s
shack. He stated that he
did not believe the allegations and based on what he found, he did
not find it necessary to investigate
the allegation about the
housebreaking. For these reasons I am of the view that the arresting
officer cannot be faulted for not
investigating the allegation. An
issue was also raised as to why did he not apply for the search
warrant before he went to the
plaintiff’s shack to conduct the
search. His explanation was that he received the information during
midnight. He realised
that it was going to take long for the warrant
to be issued and that the articles to be searched were movables. They
could be easily
disposed off. I find the explanation acceptable under
the circumstances. Counsel for the plaintiff referred to the case of
Le Roux v Minister
of Safety and Security
2006 (2) SACR 178
(T) 186
and
argued that the police should have just seized the recovered articles
and summoned the plaintiff and her husband to appear in
court.
[58]
In the
Le Roux
matter
referred to
supra
a
white police officer arrested and detained a suspect solely to
demonstrate to black members of the police services that she did
not
have racial prejudice in favour of the suspect. In these
circumstances the court found that the suspect’s detention was
unlawful and did not constitute a reasonable interference with his
liberty and fundamental dignity because there had not been a
sufficiently reasonable rationale for his detention. This case is
clearly distinguishable from the matter before me. The arresting
officer could not have left the premises without arresting the
plaintiff and her husband after what he found. The submission by
the
plaintiffs counsel does not therefore have any basis.
[59]
I am therefore satisfied that the suspicion that the police officer
had when he arrested the plaintiff was based on reasonable
grounds
for the reasons advance
supra
.
Borrowing from the words of the court in the
Mabona
matter,
I find that the arresting officer analysed and assessed the quality
of the information he had at his disposal critically,
did not accept
it lightly, or without checking it where it can be checked and that
after this examination he allowed himself to
entertain a suspicion
that justified the arrest.
[60] As regards the
alleged unlawfulness of the plaintiffs detention, I am of the view
that because I had found that the arrest
of the plaintiff was
justified, it therefore follows that her detention was also
justified.
[61] The plaintiff
further alleges that she was assaulted by one police officer who she
could not identify because the police officers
who stormed into their
bedroom eliminated them with torches. She testified that charges of
assault were not opened or reported
to the police. Furthermore she
did not have visible injuries as she was slapped on her face and
bums. There is surely no evidence
to support the plaintiffs
allegations. If she was indeed assaulted as she alleges she could
have alerted the senior police officer
who visits the cells about the
assault even though she did not sustain visible injuries. She could
have also mentioned this fact
to either her representative at court,
police officers who took her to court and the magistrate. She has
also failed to report
the matter to the police. She has the onus to
prove the allegations of assault. The allegations are disputed. I
find that she has
failed to discharge her onus on a balance of
probabilities.
[62]
The plaintiff also alleged that she was maliciously prosecuted.
Without repeating the evidence I am satisfied that members
of the
defendant, in particular, Sgt. Mogale and W/O Shibambo, set the law
in motion by having the plaintiff arrested and charged.
I find that
given the charges and the evidence discussed
supra
,
the two police officers had reasonable and probable cause to do what
they did, given the information at their disposal at the
time. It can
therefore not be said that their actions were malicious when they
facilitated the prosecution of the plaintiff. The
plaintiff has
therefore failed to prove on a balance of probabilities that she was
maliciously prosecuted.
[63] In the result I
make the following order;
63.1 The plaintiff’s
actions against the defendant are dismissed with costs.
M J TEFfO
JUDGE OF THE HIGH
COURT,
GAUTENG LOCAL
DIVISION, PRETORIA
COUNSEL FOR THE
PLAINTIFF: K K KEKANA
INSTRUCTED BY: M O
MOKOANA ATTORNEYS
COUNSEL FOR THE
DEFENDANT: A M JOZANA MKHAVELE
N P MKHAVELE
INSTRUCTED BY: THE
STATE ATTORNEY
DATE OF HEARING: 23
MAY 2013
DATE OF JUDGMENT: 23
MAY 2014