About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2013
>>
[2013] ZAGPPHC 429
|
|
Mponya v Minister of Police and Another (36594/2012) [2013] ZAGPPHC 429 (14 November 2013)
IN THE NORTH
GAUTENG HIGH COURT, PRETORIA
(REPUBLIC OF
SOUTH AFRICA)
CASE NO: 36594/2012
DATE: 14 NOBEMBER 2013
In
the matter between:
TEBOGO
GEORGE
MPONYA
...........................................................................
Plaintiff
and
MINISTER OF POLICE
MUSHEKWA
..................................................
First
Defendant
MUSHEKWA
...........................................................................................
Second
Defendant
JUDGEMENT
Kooverjie
AJ:
A.
INTRODUCTION:
1.
The Plaintiff claimed for damages arising from
an unlawful arrest by the Defendants.
2.
The issue before this court is to determine
whether the arrest was lawful. The arrest took place without a
warrant in terms of Section
40(1 )(b) of the Criminal Procedure Act
51 of 1977 (CPA).
B.
BACKGROUND
:
3.
On the l
sl
December 2009, the Plaintiff was arrested in terms of S40 (1) (b) of
the CPA and detained at the Brooklyn Police holding cells
with
another
co-suspect for 11 4 days.
4.
The Plaintiff was arrested for the alleged
theft of copper.
5.
Counsel advised this Court that the Plaintiff
was found not guilty at the criminal trial.
6.
The circumstances leading to the arrest were
essentially as follows:
6.1
Dodgen and Nenuheni, both constables, received a complaint on radio
of an alleged
theft of copper at a substation in Pretoria;
6.2
Both arrived at the site and spoke to the Manager, Noordman. Noordman
informed
them that his subordinate, Thlako had witnessed the theft of
the copper wire by the two individuals, the one being the Plaintiff.
The constables were shown the holes from which the copper was stolen;
6.3
Two statements were taken by the constables. Dodgen took Noordman’s
statement,
while Nenuheni tookThlako's statement;
6.4
Thlako's testimony had been contested on the basis that;
6.4.1
he spoke in Sepedi and the statement was taken in English;
6.4.2 Thlako as the only eye
witness was not called as a witness to testify at the trial. This
caused prejudice
to the Plaintiff as he could not be cross-examined;
6.4.3 Dodgen was unable to
communicate with or understand Thlako. Insofar as Thlako's version
was concerned, Dodgen
relied on what his co-constable told him. Based
on this, he undertook to arrest the Plaintiff.
6.5
After the statements were taken, the two arrestees were found in the
office where
they were arrested after being advised of their
constitutional rights.
C
.
THE PLEADINGS:
7.
The claim is based on unlawful arrest and the onus is on the
Defendants
to show that the arrest was indeed lawful.
8.
It is common cause that the policemen who were involved in the arrest
were acting within the course and scope of their employment as
policemen of the South African Police Services.
9.
The Plaintiff claims to have suffered damage for loss of freedom,
contumelia,
trauma and damage to his
dignity and reputation which amounted to a global amount of R3 420
000
, 00
.
10.
However this Court was requested to only make a finding on the
merits. The aspect
of quantum would be dealt by the parties at a
later stage.
11.
The Plaintiff raised certain points
in limine,
insofar as the pleadings were concerned.
12.
The Plaintiff contended that the Defendants' paragraph 11 (Ad
paragraph 6) was inadequately pleaded.
• Ad
paragraph 6 reads:
"...
Plaintiff was arrested pursuant to the provisions of s
40(l)(b) of the Criminal Procedure Act 51 of 1997 (CPA) in the
following
circumstances:
11.1 Plaintiff and a co-worker of his were caught stealing copper
cables/wire and a charge of theft was laid against him and his
co-worker at the Brooklyn Police Station by one Willem Andries
Noordman".
12.1 The Defendants
have merely pleaded by making a general reference to a statutory
provision without pleading
any facts supporting its defence.
12.2 The Defendants
should have pleaded the jurisdictional requirements and the facts
supporting each requirement,
particularly on what basis they alleged
that the suspicion was reasonable.
13
.
Hearsay
13.1 The Plaintiff further objected to the evidence led by the
officers at the trial, particularly insofar as what was relayed
to
them by the eye witness, one Thlako. Counsel for the Plaintiff
submitted that the evidence of the officers is hearsay. It wass
necessary that the eye witness and the complainant should have
testified at the trial.
13.2 Their absence at the trial caused prejudice to the
Plaintiff as he was entitled to be given an opportunity to
cross-examine
these witnesses.
13.3 No sufficient explanation was proferred on behalf of the
Defendants as to why these witnesses did not testify. The Court
was
reguested to find the evidence of the Defendants' witnesses to be
therefore inadmissible.
D
.
THE EVIDENCE:
14.
The Defendants called three witnesses whilst the Plaintiff testified
himself.
14.1
The
first witness - Dodgen
In summary his evidence was the following:
14.1.1
Upon arrival at the scene Noordman
advised him and his colleague of the theft of copper. He was shown
three holes. He saw that fr
om two holes the copper material
was missing. He then took Noordman's statement
(which appears on p57 of the discovered documents. He attempted to
communicate with
Thiako, but was unable to. He spoke to the suspects
in the office. He also searched the premises and did not find
anything. Noordman
informed him that Thiako saw the two suspects
stealing the copper.
14.1.2
Based on the aforesaid, he confirmed
that he was satisfied that the suspicion of theft of the copper was
reasonable. He had sufficient
grounds to effect the arrests.
14.1.3
Under cross examination it appeared that
he was unable to challenge the fact that apart from obtaining the
complainants and eye
witness statements, his investigation was
essentially based on examining the holes.
14.1.4
Counsel for the Plaintiff put to him that
he should have analysed the facts and consider if Thlako’s
testimony was sustainable.
14.1.5
For instance, how far was Thiako from
the two suspects, the depth of the hole, how many people were working
on the site on that
specific day, whether the other workers
sawanything. No other concrete evidence which included photos were
taken of the scene nor
did they bother to enguire the length, shape
and weight of the copper.
14.2
The second witness for the defendant -
Nenuheni
14.2.1
He confirmed that Noordman showed both
him and Dodgen the holes where the copper was removed from and stated
that the suspects were
not supposed to be working at these holes.
Thlako also told him that he saw two people who stole the copper
wire. Although Thlako
communicated in Sepedi, he took the statement
in English.
14.2.2
They were taken to the suspects who were
sitting in the "office". Dodgen spoke to them, explained to
them the nature of
the offence, and advised them of their
constitutional rights.
14.2.3
In cross examination he testified that
the hole was not fenced off and there was free movement around the
hole. He also confirmed
the stolen copper was not found on the site.
14.2.4
He further confirmed that Thlako
informed him that he was working on site the entire day. Thlako was
nearby the hole when he saw
the suspects.
14.2.5
Counsel for the Plaintiff challenged him
on the grounds that he had not applied in his mind in establishing
that the suspicion was
based on reasonable grounds. A “mini
investigation" was required which
inter olio
involved walking around the site, taking photos, establishing the
size of the copper, establishing if Thlako was aware of the suspects
whereabouts for the entire day.
14.2.6
The witness persisted that he applied
his mind properly. After evaluating the versions of the two witnesses
he was satisfied that
there would be a case against the suspects.
14.3
The third witness - Mutshekwa
14.3.1
Mutshekwa was cited as the Second
Defendant in this matter. He was however of no assistance to the
defence. He confirmed that he
had nothing to do with the arrests nor
was he involved in the investigation. His role was merely of an
administrative nature.
As
the investigating officer he admitted that he never conducted an
investigation on site, nor did he enquire why the suspects
were in
custody. He only took a statement from Noordman as he was
requested to do so by the criminal trial court at the time.
Plaintiff’s version
14.4 His testimony was essentially the
following:
14.4.1 On the morning of 1 December 2009, he
was picked up at Marabastad by Noordman and taken to build wooden
caskets for casting
concrete blocks that would serve as foundation.
14.4.2There were ten people on site. Four were
digging the foundation trenches, at least 16m from him. Thiako was
working with five
other workers also approximately 16m from him. He
was the only person sawing planks and making caskets. There was no
copper wires
where he was working. The holes were not fenced off and
people could move freely around the area.
14.4.3 Noordman only arrived at approximately
15h45 that afternoon. He then confronted the Plaintiff and the
cosuspects about
the missing copper. Both of them denied any
knowledge of the missing copper. Noordman then called the police.
14.4.4When the police officers guestioned them
they denied stealing the copper. Plaintiff testified that he was
never informed of
the reason for his arrest - namely the suspicion of
stealing copper wire. They were arrested and taken to Brooklyn Police
Station.
The Plaintiff's argument
14.5 Counsel on behalf of the Plaintiff
persisted with
inter alia
the following
argument:
14.5.1The arrests were based on the evidence of
one witness, Thlako.
14.5.2Thlako's testimony appears in a statement
which was taken by Nenuheni. Dodgen did not understand Thlako and
relied on what
Nenuheni told him.
14.5.3A
sufficient investigation was not conducted. In order to establish the
reasonableness of the suspicion the police officers
had failed to
exercise their discretion rationally nor did they apply their mind to
the information given.
14.5.4 Furthermore the suspects' version was
not taken into account.
The Defendant's argument
14.6 Counsel for the defendant cautioned the
court to appreciate
the following:
14.6.1 A peace officer is entitled to arrest
without a warrant on the basis that it is reasonable to identify the
suspect’s
involvement.
14.6.2 One does not require concrete evidence
to establish that an offence has been committed.
14.6.3 There is only a suspicion required, not
proof beyond a reasonable doubt.
14.6.4 Counsel referred the Court to
Mobono
v The State
1988 (2) SA 654
at 658 where the
test is whether there are good and sufficient grounds for the
suspicion;
14.65 Counsel correctly pointed oul that the
suspicion must be based on concrete grounds and contended that such
grounds were established,
namely that:
(a)
information was given to them by Thiako who saw the suspects cutting
the copper;
(b)
Noordman confirming the aforesaid;
(c)
the constables had conducted a satisfactory investigation by
inspecting the
holes, noting the removed copper and searching for the
copper on the premises;
(d)
it is eventually the National Prosecuting Authority whose task is to
determine
if they have a case to prosecute. Police offers are not
triers of fact.
The aforesaid thus established a reasonable
suspicion to effect the arrests and which is ail that is required
from them.
14.6.6The Plaintiff cannot rely on hearsay as
the parties have agreed at the pre-trial that the documents
(discovery) are what they
purport to be without admitting the
contents thereof.
14.6.7 In any event all that the constable did
was rely on information which he put in writing in the form of an
affidavit. This
is not always the case as arrests are effected upon
reliance on oral statements as well.
E.
ANALYSIS AND FINDINGS:
15
Section 40(1) of the
CPA gives peace officers extraordinary powers to arrest. Thus the
circumstances when such arrests are made
must be considered carefully
otherwise such arrests are considered to be unlawful.
16
In
Duncan v Minister of Law and Order
1986 (2) SA 805
at 818 F-H, the Court established that facts must
exist before such power can be exercised namely:
16.1
the arrester must be a peace officer;
16.2
the peace officer must entertain a
suspicion;
16.3
it must be a suspicion that the arrestee
committed a schedule 1 offence;
16.4
the suspicion must rest on reasonable
grounds.
17
Once these
jurisdictional facts are present a discretion arises whether to
arrest or not. Such discretion must be exercised in good
faith,
rationally and not arbitrarily. This is an objective enquiry with
relation to the facts
Minister of Safety and Security v
Sekhoto and Another
201
1 (1) SACR 315
SCA
18
Reasonable grounds
are interpreted objectively and must be of such a nature that a
reasonable pe
rson would have had a suspicion
[i]
.
19
The arrestor's
grounds must be reasonable from an objective point of view. When the
peace officer has an initial suspicion, steps
have to be taken to
have it confirmed in order to make it a
“reasonable"
suspicion before the arrest is made.
:
20
This test was
succinctly summarized in
Mobona v Minister of Low and Order
1988 (2) SA 654
SEC where it was established that what is required is
suspicion not certainty. Such suspicion must make sense otherwise it
is frivolous
or arbitrary and not reasonable.
21
There must be
evidence that the arresting officer formed a suspicion which is
objectively sustainable
[ii]
.
22
In
Tsose v
Minister of Justice
1
951 (3) SA 10A
it was
emphasized that the arrest must be with the intention of bringing the
arrestees before Court. An arrest can take place lawfully,
where the
arrestor objectively speaking, has a reasonable suspicion against the
suspect but has to conduct further investigations
after the arrest
before finally deciding to charge the arrestee.
23
Arrests can
therefore take place even if the arrester realised that at the time
of the arrest he does not have sufficient proof
for a
conviction
[iii]
.
24
It should be noted
that the events subsequent to the arrests do not have any bearing
upon whether their suspicion was reasonable.
Therefore this Court
will not deal with the evidence pertaining thereto.
'
25
The crux of the
dispute between the parties was whether the suspicion that the
Plaintiff committed a schedule 1 offence was established
on
reasonable grounds. This jurisdictional fact, as contended by the
Plaintiff, was not satisfied.
•
Objective test
26
This test was set out in the Mabono
matter supra. The test of whether the suspicion is reasonably
entertained within the meaning
of section 40(1)(b) of the CPA is
objective. The enquiry is therefore -
would
a reasonable man in the particular Defendant’s position and
possessed the same information, have considered that there
were good
and sufficient grounds for suspecting that the Plaintiffs were guilty
of the offence for which he sought to arrest the
Plaintiffs?
27
In evaluating such
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 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 a sufficiently high
quality and cogency to engender in him a conviction that the suspect
is in fact guilty. The section requires suspicion and not certainty.
However the suspicion must be based upon solid grounds..."
(my underlining)
[iv]
.
28
In applying the test
objectively the conduct of the two police officers prior to effecting
the arrest must be closely examined.
29
Both police officers
relied on the eye witness's testimony, one Thlako. Dodgen relied on
his colleague, Nehuneni who communicated
and took a statement from
Thlako. The complainant, Noordman, relied on what Thlako told him.
Noordman was not on the premises for
most of the day. The evidence
reflects that he arrived there in the late afternoon. It appears that
the theft took place earlier
in the day.
30
Both police officers
testified that they were satisfied with the arrests and that a
reasonable suspicion had been established.
31
Essentially they
testified that they had examined the holes from where the copper
wires were removed. They questioned
the suspects in the
office. The
took statements from both Noordman
and Thlako.
32
Was this sufficient
to establish there were reasonable grounds existed to form the
suspicion?
33
In cross-examination
counsel for the Plaintiff indicated that a "mini investigation"
should have followed after the complaint
was lodged with them.
34
They were expected
to conduct a site inspection, take photographs of the scene of the
crime, consult with the other workers working
in the vicinity of the
suspects, take measurements of the positions of the holes where the
suspects were working, where Thiako
was working, consider the
measurements of the copper which would indicate how it could have
been removed from the premises.
35
Having regard to the evidence before this Court
and in light of the aforesaid authorities, it is not satisfied that a
reasonable
suspicion was established. A little more was required of
them particularly in light of the fact that they relied on the
testimony
of one eye witness and did not form their own suspicion.
Surely they were expected to assess Thlako's version critically and
confirm
his testimony with regard to the scene of the crime.
36
The suspicion has to
be based on solid grounds. They were expected to make certain
enquiries and investigate the accuracy of the
information before
acting upon it.
37
Reference is made to
the Court's finding in the
Ralekwa
matter where the police officer did not form his own suspicion but
relied on the opinion of the bank manager, which fell short
of the
test set out in the
Mabona
matter.
38
Harms DP in the
Sekhoto
matter at 327b-c held that:
"once the
required
jurisdictional facts are present, the discretion or not to arrest
arise. Peace officers were entitled to exercise this
discretion as
they saw fit, provided they stayed within the bounds of rationality.
The standard was not breached because an officer
exercised the
discretion in a manner other than that deemed optimal by the Court.
The standard was not perfection, or even the
optimum, judged from the
vantage of hindsight, and, as long as the choice made fell within the
range of rationality, the standard
was not breached".
39
Although counsel for
the Defendants correctly relied on the
Sekhoto
matter
where it was held that the arrestor was not called upon to determine
whether or not a suspect ought to be detained pending
trial, that was
for the Court to determine, and the purpose of an arrest was simply
to bring the suspect before Court so as to
enable it to make that
determination
[v]
;
the missing link shall remains that the suspicion was not reasonable.
40
Consequently this
Court is not convinced that the arrest was lawfui it one has regard
to the conduct of the police officers prior
to the arrest. They had
not analysed the testimony independently but relied on Thlako's
testimony.
•
Pleadings
41
This Court further
had regard to the criticism raised by the Plaintiff's counsel -
namely that the Defendant should have pleaded
the jurisdictional
facts particularly that the suspicion rested on reasonable grounds.
Such objections should have been raised
at the plea stage where the
Plaintiff should have excepted to the plea. Be that as it may, the
pleadings however do not set out
the cause of action fully.
42
It is trite law and as Harms DP in the
Sekhofo
matter at page 333 succintly held that “
if
a defendant wishes to rely on s40(l)(b) defence, he has to plead the
four jurisdictional facts. This requires that the facts
on which the
defence is based must be set out.
”
43
This Court is thus in agreement that the
pieadings lack the jurisdictional requirements and the facts
supporting thereto.
•
Onus
44
It is well
established principle that the onus rests on the arresting officer to
prove the lawfulness of the arrest. In this case
the Defendants have
failed to show that they exercised their suspicion reasonably, that
is they met the fourth jurisdictional requirement
[vi]
.
•
Hearsay
45
This Court did not
find it necessary to make a ruling on the “hearsay evidence"
aspect at the trial and thus allowed
the testimony of the police
officers for the following reasons:
45.1
The issue before this Court is whether the
police officers had formed a reasonable suspicion to arrest the
suspects. The crux was
to determine their conduct which would reflect
whether they formed a reasonable suspicion or not. The officers
testified at the
trial what they had done to satisfy themselves that
their suspicion was reasonable;
45.2
In determining the above, the evidence
before this Court was to consider ail the facts prior to the arrest.
Thlako's statement appears
on page 55 of the bundle and is self
explanatory - the relevant portion being:
‘‘
I am the witness of the case of
a
stolen copper. On Tuesday 200
9,
12- 07 morning when I was on duty doing my
duties my cellphone rang and when I stopped doing my job to answer
the phone. I then
saw George the guy we worked together inside the
hole where there was a copper cutting it. The other guy was outside
the hole ..."
This Court has taken cognisance of such
affidavit, which was only one of the factors to be considered by this
Court.
45.3
Moreover this Court is aware that arrests
without warrants are not always made upon written affidavits. In
certain cases police
officers rely on oral testimony. What was
crucial is what had they done to establish that solid grounds existed
for the suspicion.
D.
CONCLUSION:
46.
This Court's finding therefore is that the
First Defendant had failed to show on a balance of probabilities that
the arrest was
lawful.
47.
Moreover the Second Defendant played an
insignificant role in this matter. Therefore it is appropriate to
exclude him from this
matter.
E.
ORDER:
The following order is therefore made:
1.
The defence is dismissed;
2.
The Plaintiff is entitled to such damages as he may be able to prove
he sustained due to the unlawful arrest and detention by the First
Defendant;
3.
The First Defendant is to pay the costs of this trial;
4.
The question of damages is postponed
sine
die.
H KOOVERJIE
Acting Judge Of The High Court
[i]
R v Heerden
1958 (3) SA
150
(T)
[ii]
Ralekwa v Minister of Safety and
Security
2004
(1) SACR 313
(T)
!
[iii]
Songono v Minister of Law and
Order
1996
(4) SA 384
SEC
[iv]
Mabono
supra
at p 658
[v]
Sekhoto
matter
supra
at 331c-332a
[vi]
Minister of Safety and Security
and Another v Swart
2012
(2) SACR 226
SCA