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[2013] ZAGPPHC 223
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Mapodile v Minister of Police (54617/2010) [2013] ZAGPPHC 223 (19 July 2013)
NOT
REPORTABLE
IN
THE NORTH-GAUTENG HIGH COURT, PRETORIA
(REPUBLIC
OF SOUTH AFRICA)
CASE
NUMBER: 54617/2010
DATE:19/07/2013
In
the matter between:
M
D
MAPODILE
.........................................................
PLAINTIFF
AND
MINISTER
OF POLICE
..............................................
DEFENDANT
JUDGMENT
TLHAPI
J
[1]
The plaintiff instituted action against the defendant for damages
suffered as a result of his unlawful and wrongful arrest on
12 May
2010 at Timbavati Complex, Karen Park, Pretoria and plaintiff was
detained till 21 May 2010. The period in dispute for the
purposes of
this case is from the date of arrest till the date of first
appearance at court which was on 17 May 2010. The plaintiff
sues for
damages in the amount of R1 000 000.00 plus interest at the rate of
15.5%.
[2]
The plaintiff pleaded the following in his particulars of claim:
“
3.
On or about the 12th May 2010 at about 21 h30 at Timbavati
Complex...... , the Plaintiff was unlawfully and wrongfully arrested
together with his younger brother....and..... Vusi by members of the
South African Police in full view of a large group of people
after
the police and the group of people had severely assaulted Mpho....
and Vusi.... without any justification ....
5.
At the time of the Plaintiff’s unlawful and wrongful arrest
....the plaintiff requested an explanation of the charges against
him
and that the police provide protection to him....and to read his
constitutional rights to him before being handcuffed and forced
into
the police van, but was ignored and threatened with violence as well”
[3]
The defendant admitted the arrest but denied that it was wrongful and
unlawful and that the arrest was effected after the plaintiff
had
been pointed out as the person who committed the offence of armed
robbery and theft of a motor vehicle on 5 May 2010.
BACKGROUND
FACTS
[4]
Mr Moreroa (‘Moreroa’) a police officer stationed at
Acacia and accompanied by his colleague Ms Mawelela responded
to a
complaint of a house robbery in progress. The complainant was one Mrs
Vuma who resided at Timbavati complex and according
to her, the
perpetrators were still in the complex when the police arrived. Mr
Morewa testified that he parked his vehicle inside
the complex but in
the vicinity of the entrance to the complex. On their arrival at
21h30 the gate was not closed. Mrs Vuma was
not called as a witness.
[5]
Moreroa testified that he conducted an inspection of the complex in
search for the robbers with some of the residents and did
not find
anybody. He left his colleague in the presence of a group of
residents who had already assembled at the gate and they
had called
for police back up. He returned after hearing noise and noticing
commotion at the gate. A group of people had assembled
around another
vehicle, an Avansa. He saw someone lying on the ground and that this
individual was being assaulted by the group.
He tried to stop the
assault. He picked this individual up and placed him in the police
van on the floor. On his arrival at the
van he found another unknown
man at the back of the van. He also noticed that other police
officers had arrived on the scene. According
to him three
individuals, including the one he had assisted were being attacked by
the group. At the time the three were placed
in the police van for
their protection only.
[6]
Moreroa testified further, that a certain Mrs Tshetla, who was among
the residents, and who had reported a case of robbery and
motor
vehicle theft on the 5 May 2010, pointed out the plaintiff who was in
the van, as one of the robbers involved in the incident
reported to
the police. Moreroa testified that he was the one who opened their
case but he was not in charge of the investigation.
Mrs Tshetla
called her husband who confirmed the identification of the plaintiff.
He effected an arrest of the plaintiff at that
moment and read him
his rights and handcuffed him. Mrs Tshetla was not called as a
witness. Mrs Vuma went to the police station
where a case docket was
opened..
[7]
The plaintiff testified that he lived with his brother and sister at
Timbavati
Complex.
On 12 May 2010 he did not have enough petrol in his Golf vehicle to
take his friend Vusi Masemola to Soshanguve. He arranged
with his
brother Mpho, who drives an Avansa to accompany him to Soshanguve.
They first had to drop off the Golf at the complex.
They arrived at
the complex, in the Golf and Avansa at about 20h30. He was with Vusi
in the Golf and Mpho drove alone. It was unusual
to find the entrance
gate closed. There were many people at the gate including two police
vehicles which were facing each other
outside the complex and about
seven police officers. His brother negotiated with one of the gate
keepers and they were let in.
They exchanged vehicles and were on
their way out in about ten minutes.
[8]
At the gate they were stopped by the crowd and there was a woman
wielding a steel pipe which she used to strike the bonnet of
their
vehicle. She demanded that they open the vehicle because Vusi who
occupied the back seat, looked like a suspect. When the
vehicle was
opened his brother Mpho who was the driver was assaulted and one of
the police officers took plaintiff to the police
van because she
feared that he too would be assaulted. The police officer was later
identified as Mawelela.
[9]
According to the plaintiff it was dark inside the van and there was a
lot of noise outside. He was seated on the floor on the
right hand
side of the van and behind the driver. Later Vusi and Mpho were also
put in the van. Vusi sat to the left of the van
and Mpho lay on the
floor of the van. It was while he was in the van that he heard a
female voice saying, this is the person who
robbed us and, that she
had called someone to confirm. He did not know whom she was referring
to and he did not see her. Later
the van drove to the police station
where they were handcuffed at reception and detained. The plaintiff
testified that he was not
arrested in the van at the complex and his
rights were never read to him at the complex. At the police station
he enquired from
one police officer why they were arrested and the
response was that he would be informed later.
Vusi
and Mpho were taken to hospital and he was later transferred to the
Soshanguve Police station between 1h00 and 2h00 on the
13 May 2010.
He was only taken to court for his first appearance on the 17 May
2010. He was released on bail on 21 May 2010 and
later the charges
were withdrawn due to lack of evidence.
[10]
He was interviewed for the first time and formally charged by the
police on Saturday the 15th May 2010 at about 11 h00. It
was more
than 48 hours after his arrest. He was informed for the first of the
reasons for his arrest, being for armed robbery and
motor vehicle
theft. His rights were also explained for the first time when his
warning statement was taken. The plaintiff testified
that he was
emotionally and physically traumatized by the arrest, and that it was
painful not knowing the reason for the arrest,
he could not sleep, he
could not eat and it was winter. The conditions inside the cells were
unbearable.
[11]
The plaintiff’s sister, Mathilda, testified that between 19h30
and 20h00 while at home with her sister and children she
heard noise
coming for the direction of the main gates. They did not investigate
the cause. Between 20h00 and 20h30 they watched
the soapie
Generations and shortly before it ended at 20h30, her two brothers,
plaintiff and Mpho and a friend arrived. They explained
that there
was police presence at the gate. A group of people had assembled and
that the gate was closed. They left after explaining
that they were
taking Vusi to Soshanguve. Three minutes after they had left she
heard the sound at the gate becoming louder and
louder and she
proceeded to the gate to investigate. On her approach she noticed
that the doors of the Avanza were open and that
Mpho was being
assaulted. After rescuing him and placing him back in the Avanza a
police officer arrived and insisted that he be
taken to the police
van for his protection. Some of the people recognized them as
residents in the complex.
[12]
According to her there were no police vehicles parked inside the
premises. She noticed two police vehicles parked outside
at the gate,
facing each other.
Mpho
was placed in the van on the left and she remained at the Avanza. She
spoke to a police officer Mawelela who informed her that
she had seen
Mpho enter the complex earlier on. She also heard people saying that
the robbers were carrying firearms. She then
asked the police to go
to their home to conduct a search. She accompanied the police in the
van and Mpho was taken along. She only
realized that the plaintiff
and Vusi were also in the van when she peeped into the van. It was
dark inside but she recognized their
clothing. The police searched
the house for the firearms and did not find anything. At their home
another group came and there
was a woman who alleged that her Dodge
vehicle had been stolen and this lady then lifted the flap of the
police van canopy and
said this is the one who took my vehicle.
Mathilda did not know whom she was referring to. Thereafter her other
brother and nephew
arrived and they went to the police station.
[13]
Mpho testified that when they were on their way out in his Avanza the
group was all over the vehicle and he tried to explain
that he was
the one who had entered earlier on. He saw Vusi being assaulted and
someone tripped him. He hit his head on the ground
and fainted. When
he came to, he was lying on the floor of the police van and it was
dark. He did not see much at the complex.
On arrival at the police
station they were all handcuffed and made to sit under a concrete
table at reception. He was later taken
to hospital with Vusi.
THE
ARREST
[14]
The jurisdictional facts required for a peace officer to effect an
arrest without a warrant are set out in Section 40(1 )(b)
of the
Criminal Procedure Act 51 of 1977, which provides:
“
A
peace officer may without warrant arrest any person- (b) whom he
reasonably suspects of having committed an offence referred to
in
Schedule 1 ” (my underlining)
The
jurisdictional facts being present, the arresting officer is obliged
to exercise his discretion, whether or not to arrest the
suspect,
properly and bona fide and for purposes as contemplated within the
meaning of the above provisions, Duncan v Minister
of Law and Order,
1986 (2) SA 805
(A), Minister of Safety and Security v Sekhoto
2011
(1) SACR 315
(SCA).
[15]
When the police were summoned to Timbavati Complex on 12 May 2010 it
was not about the incident of robbery reported by Mrs
Tshetla on 5
May 2010. It was about the report of Mrs Vuma. Although there was
dispute about the time when the police officers
and the plaintiff
arrived at the complex on 12 May 2010, the following facts are common
cause:
1.
On the arrival of Moreroa a group of people had already began
gathering at the main entrance and this necessitated Moreroa calling
for back-up. When the plaintiff, his brother Mpho and his friend Vusi
arrived at the complex later on, a larger group had assembled
at the
entrance, the gate was closed and police back-up had arrived on the
scene;
2.
It took Vusi and company a few minutes to exchange vehicles, when
they arrived at the exit gate they were attacked and they
were put
into Moreroa’s police van in order to protect them from an
assault by the group of people;
3.
Moreroa was not present in the vicinity of the gate when the
plaintiff and company arrived. He had gone in search of those who
had
attacked Mrs Vuma. He had been informed that the assailants were
probably still in the complex. He was also not present when
the
plaintiff and company arrived back at the gate in the Avanza
intending to leave the complex;
4.
When Moreroa returned to the entrance he had no knowledge of the
reason why the plaintiff and company and the Avanza were at
the gate.
He did not make any enquiries as to whether they were the people he
had gone in search of.
5.
Both Moreroa and the plaintiff testified that plaintiff, Mpho and
Vusi were put into the van mainly for their protection. The
plaintiff
had been taken to the van by police officer Mawelela. At that stage
no arrest had been effected on the plaintiff and
he was not
handcuffed when placed into the police van for his protection.
[16]
There was further dispute about where the purported identification of
the plaintiff took place. Moreroa testified that it took
place not
far from the entrance where his police vehicle was parked. At the
time the plaintiff was at the back of the police van.
The plaintiff
and his sister Mathilda testified that the purported identification
of the plaintiff occurred while plaintiff was
still at the back of
the van. At the time she had invited the police to her residence to
conduct a search of her home, it being
the place where the plaintiff
and company had been shortly before they were put in the van. Moreroa
testified that there was light
in the van provided by head lights of
vehicles which made it possible for the identification by Mrs Tshetla
which was then confirmed
by her husband. The plaintiff disputed such
fact, he testified that it was dark in the van. In cross examination
the plaintiff
was confronted with the contents of his warning
statement and it was pointed out to him that he had not only heard
Mrs Tashetla’s
voice but had seen her at the complex when he
was pointed out. The plaintiff was evasive during cross examination
about what he
said in his warning statement regarding Mrs Tshetla’s
identification. He stated in such statement that ‘it was the
first time to see the complainant when I was pointed on 2010-05-12 at
Timbavati complex.”
[17]
It is clear from the evidence of Moreroa and the plaintiff’s
pleadings that the arrest occurred at the complex and not
later at
the police station and the time mentioned in the particulars of claim
was confirmed by Moreroa. The plaintiff pleaded
that he was
‘unlawfully and wrongfully arrested.....in full view of a large
group of people” and that he “requested
an explanation of
the charges...that the
police
provide protection to him..... to be read his constitutional rights
before being
handcuffed
and forced into the police van, but that he was ignored and
threatened with violence....1’ In his evidence in chief
plaintiff testified that he was arrested and
handcuffed
at Acacia police station. He vehemently denied that he was arrested
by Moreroa at the complex, he said he did not recall
that and he was
adamant that he was not arrested in the van.
[18]
The question to be asked in this instance is whether Moreroa
reasonably entertained a suspicion that the plaintiff was the
one who
committed the robbery reported by Mrs Tshetla on 5 May 2010. In the
Sekgotho matter supra Harms JA stated when referring
to the Duncan
matter supra (at 818H-J):
“
[30].....
an exercise of the discretion in question will be clearly unlawful if
the arrestor knowingly invokes the power to arrest
for a purpose not
contemplated by the legislature. This brings me back to the fact that
the decision to arrest must be based on
the intention to bring the
arrested person to justice”
And
he stated further:
[38]
...... it remains a general requirement that any discretion must be
exercised
in good faith, rationally and not arbitrarily.
[39]
This would mean that peace officers are entitled to exercise their
discretion as they see fit, provided that they stay within
the bounds
of rationality. The standard is not breached because an officer
exercises the discretion in a manner other than that
deemed to be
optimal by the court. A number of choices may be open to him, all of
which may fall within the range of rationality.
The standard is not
perfection or even the optimum, judged from the vantage of hindsight,
so long as the discretion is exercised
within this
range,
the standard is not breached
[42]
the power to arrest is only one step in that process. Once an arrest
has
been effected the peace officer must bring the arrestee before a
court as soon as reasonably possible; and at least 48 hours,
depending on court hours. Once that has been done the authority to
detain, that is inherent in the power to arrest is exhausted”
[44]
While the purpose of the 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 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”
[19]
Whether Moreroa exercised his discretion objectively is to be
determined according to the facts of the case. In this matter
Moreroa
had not gone to Timbavati to investigate Mrs Tshetla’s
complaint and he did not have information on the identities
of her
assailants. In my view, the arrest happened suddenly, in a situation
of a community who were up in arms about incidents
of robbery which
occurred within a few days of each other. Although Moreroa was not
the investigating officer of Mrs Tshetla’s
case, he had
knowledge of her complaint because he opened the case docket of the
incident of 5 May 2010. Mrs Tshetla was known
to him at the time he
went to investigate Mrs Vuma’s complaint on 12 May 2010.
[20]
In cross examination Moreroa testified that he had no knowledge of
Mrs Tshetla’s presence among the group of people at
the time.
It was just coincidence that she was standing near the back door of
the van when he opened it to put in one of the individuals
whom he
had rescued from the crowd. The plaintiff was sitting next to the
door and there was no difficulty in him been seen by
Mrs Tshetla. In
my view given the volatile situation that had arisen, first the
plaintiff and his companions were put in the police
van for their
protection, then arose the sudden identification of a suspect.
This
was not a situation where Moreroa had the opportunity to still
thoroughly establish certainty regarding identity, it was not
even
about whether this identification would have been admissible in
court. This was a matter to be further investigated by the
investigating officer. According to Moreroa the plaintiff was handed
over and that concluded his involvement in the arrest. Having
regard
to the situation and in the circumstances it was, in my view, the
most rational decision to take at the time because the
jurisdictional
facts were present when the arrest was effected.
[21]
In the result the following order is given:
1.
The plaintiff’s claim is dismissed with costs.
TLHAPI
V. V
(JUDGE
OF THE HIGH COURT)
MATTER
HEARD ON:18 MARCH 2013
JUDGMENT
RESERVED ON:25 MARCH 2013
ATTORNEYS
FOR THE PLAINTIFF: L J LESO INC.
ATTORNEYS
FOE RESPONDENT: THE STATE ATTORNEYS