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[2013] ZAECMHC 23
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Qaku v Minister of Safety & Security (1112/08) [2013] ZAECMHC 23 (18 July 2013)
IN THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE HIGH COURT: MTHATHA
CASE NO: 1112/08
Delivered on: 18/07/13
NOT REPORTABLE
In the matter between:
SOLOMZI QAKU
........................................................................................
Plaintiff
and
MINISTER OF SAFETY & SECURITY
.................................................
Defendant
_____________________________________________________________
JUDGMENT
____________________________________________________________
NHLANGULELA J:
[1] The plaintiff claims compensation for damages
arising from an alleged unlawful search of his two residential
properties and
a motor vehicle, and his unlawful arrest and
detention.
[2] At the outset of the trial proceedings both parties
moved a joint application for the separation of the merits of the
action
and
quantum.
I duly granted the application, ordering
that the trial proceeds for the determination of the merits only. I
also made as an order
of the Court the agreement of the parties that
the defendant leads evidence first; it having been my understanding
of the
dicta
that the defendant bears the onus of proving that
(1) a warrantless search of the houses and search and seizure of a
motor vehicle
suspected to be stolen –
Ndabeni v Minister of
Law and Order and Another
1984 (3) SA 500
(D and C.L.D.) at 571
D-E; and (2) a warrantless arrest and detention of a person suspected
of committing a crime listed in Schedule
1 to the
Criminal Procedure
Act 51 of 1977
-
Duncan v Minister of Law and Order
1986 (2)
SA 805
(A) at 818G-H) were lawful.
[3] Two witnesses testified on behalf of the defendant,
namely: Mr Sabelo Pika (the Warrant Officer) and Mr Zwelonakele
Alfred Ngwenze
(the Sergeant). They testified that during the night
of 22 February 2008 a combined unit comprising members of public
order policing
from Mthatha, Port Elizabeth, East London and
Queenstown had converged at Qumbu when their seniors advised them,
together with
ten other policemen, to go to house No. 563 Thabo Mbeki
Township, Libode and search the premises of the plaintiff, seize from
them
motor vehicles believed to have been stolen and firearms
believed to have been possessed by the plaintiff without a licence
and
arrest him to answer to charges thereannent in due course. The
two members aforementioned believed the information to be correct,
albeit
without any verification thereof, and duly repaired to
Libode Police Station with a view of first obtaining a warrant as
envisaged
in ss 20, 21 and 22 of the Criminal Procedure Act 51 of
1977 (the Act.). Efforts to get a warrant were frustrated by the
absence
of the Station Commissioner and the magistrate. They told the
Court that information at hand was that the exhibits might be moved
to an unknown destination had the search, seizure and arrest been
delayed by reason of absence of a warrant and the plaintiff receiving
information that the police are on the way to his place of residence.
[4] Upon reaching the house of the plaintiff at midnight
of 22 February 2008 the members of the defendant, including the
witnesses
as aforementioned entered the premises and the witnesses
proceeded to the door and knocked. After having been let in by the
plaintiff
they introduced themselves and informed him about the
purpose of their visit. Thereafter they searched the bedroom of the
plaintiff
in his presence, with permission to do so having been
obtained from him, but they could find neither stolen vehicles nor
unlicensed
firearms. Having been told by the plaintiff that he has
another house nearby, house No. 556, Thabo Mbeki Township, Libode
(the
second house) they proceeded there and found a motor vehicle
that had been reported stolen in Tsineng, Northern-Cape Province and
reported under Ref. No. Tsineng 5/5/2007. The plaintiff was
confronted about the vehicle and his response was that the vehicle
belonged to him. However, proof of ownership was not shown to the
witnesses. The witnesses decided to arrest and detain the plaintiff
because they were satisfied that he could account for possessing such
a vehicle.
[5] A search into the second house of the plaintiff led
to a discovery of 8 rounds of ammunition for a firearm that was not
present
in the house. However, the witnesses decided not to charge
the plaintiff for that ammunition. One Mr Mankahla, who was found
sleeping
in the house was charged together with Wandile Qaku, the
brother of the plaintiff, and one Lubabalo Finiza.
[6] The version discernable from the evidence of the
plaintiff, his wife and Lubabalo Finiza is that the searches in the
two houses
were unlawful to the extent that they were not authorized
by a warrant, the consent of the owner of the houses was not obtained
and the search was characterized by violent intrusion upon the
personal rights of the plaintiff who was pointed with firearms by
the
defendant’s witnesses and many other policemen who could not be
identified.
[7] The testimony of the plaintiff as given during the
trial is briefly that the police broke the gate to gain access into
the premises
of the first house, they broke the doors of both houses
to gain entry into the houses, the police pointed at his two children
and
helper with firearms, the police took him to the second house by
means of conveyance in a police vehicle, the police tortured three
men found sleeping in the second house, the only reason given for the
search was that the vehicle seized had been stolen and later
on
recovered by the police before the search was conducted on 22
February 2008, the clothes in the wardrobes searched were left
upside
down, the mattress was separated from its base, the police refused to
give plaintiff an opportunity of fetching from the
first house
documentary proof of ownership of the vehicle suspected to be stolen
and that no explanation was given to the police
that the 8 rounds of
ammunition belonged to plaintiff’s licensed firearm, and that
the keys to the vehicle seized were supplied
by Wandile Qaku.
[8] Much of the details of evidence adduced by the
plaintiff and his witnesses with regard to the manner in which the
houses and
the vehicles were searched, and put to the defendant’s
witnesses, were denied. The plaintiff’s witnesses could also
not confirm some of the details of the events relating to the manner
in which the search was conducted. For an example there is
no
confirmation that the gate locks and doors of the houses were broken,
the three men were suffocated with plastic bags placed
over their
heads and that there were documents/files of the plaintiff that were
searched in the bedroom of the first house. What
must have added to
the difficulties in narrating the details of the searches is a long
period of time lapse between the date of
occurrence of the searches
on 22 February 2008 and the date of trial in June 2013. Be that as it
may, the following material facts
seem to me to be common cause,
namely that:
(a) there was information that the plaintiff was in
unlawful possession of a vehicle(s) suspected to be stolen and
unlicensed firearms.
(b) the search in the first and second houses were
conducted without a warrant.
(c) the plaintiff’s houses were searched and a
vehicle suspected to be stolen and 8 rounds of ammunition were found
in the
second house.
(d) as a result, the plaintiff was arrested and
detained.
[9] The singular question to be answered is whether the
searches and the arrest and detention as aforementioned were lawful.
[10] Applying the test in resolving disputed facts as
stated in the case of
Stellenbosch Farmers’ Winery Group and
Another v Martell et Cite and Others
2003 (1) SA 11
(SCA) at
para. [5] the contention advanced on behalf of the plaintiff that
consent to conduct the search was not obtained from
the plaintiff is
correct. In the case of
Magobodi v Minister of Safety and Security
And Another
2009 (1) SACR 355
(Tk) at 360g it was held by
Miller J that proper consent in terms of s 22(a) of the Act must be
voluntary. It was not so in this
case because the plaintiff would not
be able to give informed consent where he is suddenly confronted by
the police at midnight
asking him where the firearms and stolen
vehicles were kept. However, consent is not the only jurisdictional
factor for consideration
in determining lawfulness or otherwise of a
warrantless search. Section 22(b) of the Act provides that a
warrantless search is
lawful if the searcher believed on reasonable
grounds that a warrant would be issued to him and that the delay in
obtaining such
a warrant would defeat the object of the search. The
evidence of the defendant’s witnesses that it was their
intention to
first obtain a warrant from the Station Commissioner or
the magistrate but on failing to find them and fearing that the
articles
they were looking for would be removed unless they acted
swiftly they had to proceed to the houses of the plaintiff. In the
absence
of gainsaying evidence to contradict such evidence, I am
unable to find that the decision taken and the actions performed by
the
police were unreasonable. Further, it has not been contended on
behalf of the plaintiff that the vehicle found in his possession
was
not an article liable to be searched and seized in terms of ss 20 and
22 of the Act. The vehicle would serve as an exhibit
in a matter
under investigation in Tsineng. In light of the telephonic and,
later, documentary confirmation that the vehicle was
suspected to
have been stolen in Tsineng it would be improper for the police not
to conduct the search simply because they did
not have a warrant.
[11] I now turn to deal with the claim based on unlawful
arrest and detention of the plaintiff for having been found in
possession
of a vehicle suspected to be stolen. The defendant’s
defence is that the police were entitled to arrest the plaintiff in
terms of s 40(1)(b) of the Act, in terms of which they had to prove
that: (i) the arrestor is a peace officer; (ii) the arrestor
entertained a suspicion; (iii) the suspicion was that the suspect
(the arrestee) committed an offence referred to in Schedule 1
to the
Act; and (iv) the suspicion must rest on reasonable grounds. See:
Duncan, supra,
at 818G-H; and
Minister of Safety And
Security v Sekhoto
2011 (1) SACR 315
(SCA) at 320, para. [6].
[12] It was submitted by
Mr Zono,
counsel for the
plaintiff, that an offence of unlawful possession of a stolen motor
vehicle is not listed in Schedule 1 to the Act
as being one of those
that the arrestee must be suspected to have committed; the police
ought to have applied less invasive means
of securing the attendance
of the plaintiff in court to answer to a charge of unlawful
possession of a vehicle than to keep him
in prison; that the vehicle
was proved by the plaintiff to have been owned by him legitimately;
and that in so far as the police
cordoned-off the areas in which the
houses being searched were situated the police did not have a written
authority of the Provincial
Commissioner to do so as envisaged in
s
13(8)(a)
of the
South African Police Service Act 68 of 1995
. I will
deal with each of these submissions in turn.
[13] Schedule 1 to the Act contains a list of a number
of offences of which the offence of theft, whether under common law
or statute
law, is one. As I understand the facts of this case the
vehicle for which the plaintiff was arrested and detained had been
suspected
to be a stolen vehicle under Ref No. 05/05/2007; Tsineng,
Northern Cape. As a person found in possession of it he would be
compelled
to answer to a charge of theft, including the statutory
crime of unlawful possession of goods suspected to be stolen, as
envisaged
in terms of s 36 of the General Law Amendment Act 62 of
1955. The fact that the plaintiff was charged with the offence of
theft
or unlawful possession of which he was ultimately not convicted
is irrelevant. See:
R v Moloy
1953 (3) SA 659
(T) at 662E. In
any event, Schedule 1 provides that any offence the punishment
whereof may be a period of imprisonment exceeding
six months without
the option of a fine may be included in the list of offences the
arrestee may have committed. The first submission
must, therefore, be
rejected.
[14] The second submission may be disposed of by
referring to the
dictum
of Harms JA in the case of
Sekhoto,
supra,
where he said at paragraph [22]:
“I am unable to find anything in the provision [s 46(1)(b) of
the Act] which leads to the conclusion that there is, somewhere
in
the words,
a hidden fifth jurisdictional fact.
And because
legislation overrides common law, one cannot change the meaning of
the statute by developing the common law.”
(The underlining is
mine for emphasis).
[15] Consequently, I find that the steps taken by the
police upon discovering a suspected stolen vehicle in the possession
of the
plaintiff were adequate and, therefore, lawful. The defendant
has no duty to show that other means of securing the attendance of
the plaintiff in court than confining him in the custody of the
police were appropriate.
[16] There is no evidence before the Court that the
plaintiff submitted documentary proof of ownership to the police
either at the
time of arrest or later on. I did not see such proof in
the bundle of documents discovered for the purposes of the trial. The
submission
with regard to the cordoning-off of plaintiff’s two
houses for the purposes of search does not, in my view, advance the
case
of the plaintiff beyond the concession made by the police
witnesses that they had no written authority to cordon-off the
houses.
The defendant had no duty to prove that the cordoning-off of
the houses was valid. These submissions fall to be rejected as well.
[16] In all the circumstances of the case I find that
the defendant succeeded in justifying the searching of plaintiff’s
two
houses without a warrant. I make a similar finding with regard to
the arrest and detention of the plaintiff. The costs of suit must
follow these findings.
[17] The following order is therefore made:
The plaintiff’s actions based on unlawful search and
unlawful arrest and detention are dismissed with costs.
__________________________________
Z.M. NHLANGULELA
JUDGE OF THE HIGH COURT
Attorney for the plaintiff : Mr A.S. Zono
c/o A.S. Zono & Associates
MTHATHA
Counsel for the defendant : Adv K.D. Qitsi
Instructed by : The State Attorney
c/o D N Nolangeni & Associates
MTHATHA