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[2012] ZAGPPHC 79
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Kruger v Minister of Safety and Security and Another (34070/2009) [2012] ZAGPPHC 79 (13 April 2012)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH GAUTENG, PRETORIA)
Dase
No: 34070/2009
Date
heard: 6-10/02/2012
Date
of judgment: 13/04/2012
In
the matter between:
Bernardus
Izak
Kruger
...............................................................................................
PLAINTIFF
and
Minister
of Safety and
Security
.......................................................................
1st
DEFENDANT
Captain
Mashile
.............................................................................................
2nd DEFENDANT
JUDGMENT
DU
PLESSIS J:
On
11 August 2008 members of the South African Police Service (SAPS)
under the command of Captain Mashile (the second defendant)
arrested
the plaintiff. The police officers were acting within the course and
scope of their employment with the first defendant.
Arising from
arrest and the subsequent detention, the plaintiff now claims damages
from the two defendants on four bases.
In
the first place the plaintiff alleges that Mashile assaulted him by
pushing and shoving him in the presence of "clients
and friends
of the plaintiff". The plaintiffs second claim is founded on the
allegation that, after the assault by Mashile,
unknown police
officers assaulted him by hitting him with their fists, cuffing and
restraining him and by thereafter continuing
to hit and kick him. The
third claim is for alleged unlawful arrest and detention. As to the
fourth claim the plaintiff alleges
that Mashile assisted by other
police officers unlawfully and maliciously caused the plaintiffs
prosecution on a false charge of
illegal possession of a firearm.
The
plaintiff testified that he conducts business in Mitchell Street,
Pretoria-West. On the afternoon of 11 August 2008 he was at
the
business with Ms Amanda Delport and a friend by the name of Gustav.
It was closing time and the three of them were in the shop
behind the
counter having a drink. Suddenly, without warning, five or six men in
plain clothes charged into the shop. The plaintiff,
under the initial
impression that they were robbers, stood up. Without a word the men
tackled him to the ground. He tried to resist,
but they pinned him
down. According to the plaintiff he had his firearm, the metric
equivalent of a Colt .45, in a holster tucked
into the front of his
trousers. The hilt of the gun was sticking out. The men undipped the
holster and removed the gun and the
holster. They also handcuffed the
plaintiff.
In
the process of overpowering the plaintiff, the men bumped and shoved
him. One of the men pushed or kicked the plaintiff on the
head with a
knee.
With
Ms Deiport's cellphone the plaintiff's friend, Gustav, took photos of
the event.
One
of the men, who later turned out to have been Mashile, asked the
plaintiff whether he had a licence for the firearm. The plaintiff
said yes and shouted to Ms Delport to bring the licence. At that
stage Ms Delport was in the office where she had fled when the
men
tackled the plaintiff. Mashile, however, said that he did not want to
see the licence and that the plaintiff could show it
to the
magistrate. The plaintiff said that Ms Delport later took the licence
to the police station but she was again told that
it could be shown
to the magistrate.
The
men then took the plaintiff and Gustav to a police van parked
outside. They also took Ms Deiport's cellphone, the holster and
the
gun. On the way to the police van the men held the plaintiffs arm
behind his back, forcing it upwards. He was forcefully pushed
into
the back of the van.
The
plaintiff was taken to the Pretoria West police station where he was
held in an office while the necessary paperwork was done.
The
plaintiff testified that the cellphone and the gun were booked into
the SAP13-store but not the holster.
After
the paperwork had been done, so the plaintiff testified, he and
Gustav were put into a holding cell in the police station.
The cell
was filthy. One of the other detainees made barely concealed threats.
It
is not in issue that from the police station the plaintiff was taken
to the Laudium hospital for the purpose of blood/alcohol
sampling. It
is also not in issue that, on his return from the hospital, the
plaintiff was released on bail. As to the relevant
times, the
plaintiff initially testified that he was taken to the hospital at
about 22h00 and that he was released at about 23h30.
He then returned
home with Ms Delport who had in the meantime arrived at the police
station. In cross-examination the plaintiff
was confronted with
official record entries showing that he arrived at the police station
shortly after 18h00, that his blood sample
was taken at the hospital
at 18h35 and that he was released at 22h01. The plaintiff ultimately
conceded that his evidence as to
the times must be wrong.
A
few days later, on 15 August, the plaintiff appeared in the
magistrates' court on charges of possessing a firearm without a
licence,
of possessing a firearm while under the influence of liquor
and of intimidation. He was not asked to plead nor was he asked to do
so when he appeared on two further occasions. At the third court
appearance, on 22 September 2008, the charges against the plaintiff
were withdrawn. The plaintiff instructed an attorney to represent him
and for that he paid a fee of R6000.
As
to the charges against him, there are statements in the docket by a
Captain Bisone, a Superintendent Khoza and Captain Mashile
to the
effect that the plaintiff had before his arrest been carrying his
firearm stuck in his waist, without a holster and exposed.
The
plaintiff referred to these statements and denied these allegations.
In
cross examination the plaintiff was referred to a letter that he had
written and in which he gave an account of the events leading
to his
arrest. He was also referred to a statement that he had made about
the events. Both these documents differ materially from
the
plaintiffs evidence. When he was confronted with these difference the
plaintiff changed aspects of his evidence. I shall deal
therewith
when discussing the credibility of the various witnesses.
Ms
Amanda Delport said that she is the plaintiffs fiance and that she is
in his part time employ. On the day in question she was
in the office
while the plaintiff and friends were having a drink in the shop.
Somebody shouted to her to bring the plaintiffs
firearm licence. She
went and fetched the licence which was in the plaintiffs identity
book in his bakkie. When she attempted to
show the licence to the
police, they said that she could show it to the magistrate. At that
stage the plaintiff was on the ground
and under arrest. The police
took the plaintiff away. After she had locked the shop, friends took
Ms Delport to the police station.
There she again tried to show the
licence to a policeman but she was again told that she could show it
to the magistrate. Ms Delport
confirmed the plaintiffs initial
version that they left the police station at about 00h00 (about an
hour before 01h00, she said.)
For
the defendants Captain Mashile testified that he is a policeman with
25 years experience as such, a captain attached to the
national
inspectorate of the SAPS. On the afternoon of 11 August 2011 he was
driving home in a marked police car. He was not in
uniform but with
him in the car were Captain Bisone and Colonel Khoza both of whom
were in uniform.
At
about 16h30 the three police officers drove past the plaintiffs
business. Mashile, the driver, stopped at a traffic light. He
saw a
man, whom he later came to know as the plaintiff, on the side walk
loading spare parts into a vehicle. The man had a firearm
stuck into
his belt at the back. The firearm was not in a holster and was
exposed. Waiting at the traffic light, Mashile told the
plaintiff
that by law the gun had to be holstered and concealed. The plaintiffs
reply was to challenge Mashile to come and arrest
him. Mashile parked
the police car and the three officers got out. The plaintiff was by
then walking back into his shop. The officers
followed the plaintiff.
Mashile's
testimony did not present a clear chronological sequence of the
further events up to the plaintiffs arrest. What follows
is my own
reconstruction of the probable chronology of events that Mashile
testified to.
When
the officers entered the shop they saw a few people there. They were
drinking liquor. Mashile could remember seeing, apart
from the
plaintiff, at least one other man and a woman. Mashile, so he
testified, identified himself and the other two officers.
They all
produced their police identification cards. The plaintiff was
aggressive from the outset and shouted that if they wanted
to arrest
him, they must obtain a warrant. Mashile asked the plaintiff for his
firearm licence. The plaintiff neither produced
the licence nor did
he say that he had one. Instead, he shouted derogatory abuse at the
officers and said that he knew high ranking
officers. He started to
phone and said that he was calling one Brigadier Chetty. The
plaintiff apparently did not make contact
with Chetty and continued
to shout aggressive abuse at the three officers. Mashile stepped
closer and smelt liquor on the plaintiffs
breath. He told the
plaintiff that he was not allowed to handle the firearm while under
the influence of liquor. Mashile decided
that he needed to seize the
firearm and again asked the plaintiff for his licence. The plaintiffs
response was to shout further
abuse and he moved in behind the shop
counter. "We", Mashile said, went into an opening in the
counter in order to reach
the plaintiff. The other man blocked
Mashile's way. The latter again asked for the plaintiffs firearm
licence but was met with
similar aggressive language. The plaintiff
and the other man then pushed the police to the outside of the shop,
Mashile said. As
to his request to be shown the plaintiffs licence,
Mashile denied that Ms Delport was either asked to or produced the
licence.
Outside
Mashile called for police back up. A number of uniformed officers
arrived in cars and also in a police van. Mashile briefed
them on the
situation and told them that he wanted to take the firearm. The
police entered the shop {that had in the meantime been
closed)
through a small door. Inside Mashile again asked for the plaintiffs
licence. The plaintiff did not produce his licence.
Mashile,
convinced by the plaintiffs appearance and conduct that he was drunk,
told the plaintiff that if he did not produce his
licence, they would
take the firearm.
The
plaintiff's response was that if they tried to take his firearm, he
would "blow their heads off". Mashile explained
the
plaintiff's rights to him and ordered the officers to take the gun
and to arrest the plaintiff. Two officers approached the
plaintiff.
One removed the gun. The plaintiff was handcuffed and taken to the
police van. He was then taken to the Pretoria West
police station
where, according to the official records, he was detained at 18h10.
Mashile
explicitly testified that the plaintiff was arrested for possession
of a firearm without a licence, for possession of a
firearm while
under the influence of intoxicating liquor and for intimidation. The
latter charge was based on the plaintiff's threat
to blow off the
heads of the police officers. Later Mashile told Superintendent
Moodley, the station commander who had been called,
that the
plaintiff was also arrested for carrying a firearm not in a holster
and exposed.
The
plaintiff, Mashile said, was not detained in a holding cell. He was
kept in the office where the necessary paper work was done.
The
plaintiff was then taken to the Ladium hospital for blood/alcohol
sampling. Mashile confirmed that the charges against the
plaintiff
were later withdrawn. He was unaware of the reason and was not called
upon to testify in the criminal case against the
plaintiff.
For
the defendants Captian Bisone, a policeman with 18 years' experience,
testified that he was in the car with Mashile and Khoza.
He and Khoza
were in uniform. Bisone confirmed that they saw the plaintiff on the
side walk with the firearm, not in a holster,
sticking out on his
back. He also confirmed Mashile's evidence as to the events outside
the shop.
When
they entered the shop, Bisone said, Mashile produced his police
identity card and identified himself to the plaintiff. The
witness
and Khoza did likewise. Mashile asked the plaintiff for his firearm
licence. The plaintiff told the officers that they
were on private
property and to get out. Mashile asked for the licence several times
but the plaintiff did not produce it. Mashile
and Bisone then
attempted to remove the plaintiffs firearm but another man who was
inside the shop blocked their way. The officers
were also pushed out
of the shop. Bisone confirmed that the plaintiff was very aggressive
and under the influence of liquor. In
cross examination Bisone was
closely questioned as to exactly how they went about their attempt to
remove the plaintiffs firearm.
The witness was unable to give a clear
and understandable account of those events.
Bisone
confirmed the evidence that they called for further police support
when they came out of the shop. Bisone confirmed Mashile's
evidence
as to the further events adding that it was he who later took the
plaintiff the Ladium hospital.
The
defendants also called the investigating officer in the case against
the plaintiff, one Sergeant Khoza, to give evidence. Khoza
said that
he was in the charge office when the plaintiff was brought in. He did
the paperwork formally to charge the plaintiff
with possession of an
unlicenced firearm, possession of a firearm while under the influence
of liquor and of intimidation. He specifically
asked the plaintiff
for his firearm licence and the plaintiff told him the he (plaintiff)
would make a statement in court. The
plaintiff did not produce the
licence. The witness was unable to throw any light on the reasons for
the withdrawal of the case
against the plaintiff.
According
to the plaintiff there were essentially two scenes at which the
relevant events of 11 August 2008 played themselves out:
Inside the
shop when the police stormed in and arrested him and at the police
station. The version of the defendants is that there
were essentially
four scenes: Outside the shop on the sidewalk, inside the shop when
Mashile, Bisone and Colonel Khoza went in,
inside the shop when the
reinforcements went in and at the police station.
Albeit
that he did not deny that he may have been outside to load items into
his vehicle, the plaintiff did not admit that Mashile
saw him there.
I have no hesitation in accepting the police officers' evidence that
they saw the plaintiff outside the shop loading
something into his
vehicle. The evidence cogently explains the train of events that
followed.
It
is held that Mashile, driving past, saw the plaintiff outside his
shop loading something into his vehicle. Something focussed
Mashile's
attention on the plaintiff. I am satisfied on a conspectus of the
evidence that that "something" could only
have been the
plaintiffs exposed firearm. In this regard, another issue between the
parties can also be dealt with. According to
the plaintiff, he wore
his bolstered firearm stuck into the front of his trousers. Mashile
and Bisone's evidence, however, was
that they saw the firearm when
the plaintiff bent over to load goods into his vehicle. It is
improbable that they would have seen
the firearm if it had been
carried in the front. I hold that the police officers saw the
plaintiff outside the shop, in public,
wearing an exposed firearm
stuck into his belt.
Accepting
as I do that Mashile saw the plaintiff on the sidewalk with his
exposed firearm, it is probable that Mashile told the
plaintiff that
he should not carry an exposed firearm in public. Something prompted
Mashile and the other two officers to interrupt
their homeward
journey, to park and to enter the plaintiffs shop. The plaintiffs
version does not explain what that something was.
On their version
the officers were prompted by the plaintiffs disrespectful reaction
to Mashile's cautionary words. Again, the
defendants' version affords
a cogent explanation for the day's events and it is more probable
than that of the defendant.
I
hoid that Mashile cautioned the plaintiff about his exposed firearm,
that the plaintiff disrespectfully challenged Mashile to
arrest him
and that this prompted the officers to park and to follow the
plaintiff.
The
plaintiff denied that at first only the three officers came into the
shop. His version is that the first entrance took place
when the
officers and the reinforcements entered the shop, it is not
improbable that the three officers, having seen the plaintiff
with
his exposed firearm and having experienced his dismissive reaction to
Mashile's caution, might there and then have decided
to call for
reinforcements. The officers' evidence that only the three of them
entered the shop at first, however, neither detracts
from nor adds to
their essential version that they had reason to believe that the
plaintiff was carrying an unlicenced firearm,
that he was under the
influence of liquor and that he intimidated them. Accordingly, the
two who gave evidence had no reason to
lie about the fact that only
the three of them entered the shop at first. In addition, their
version that only the three of them
first entered the shop is not
improbable or inconsistent with their essential version. The
plaintiff, on the other hand, had good
reason to deny that only the
three officers first entered the shop. His essential version is that
he had been the victim of an
uncalled for attack. The initial entry
by only the three officers detracts from that version. For reasons
that follow later, I
found the plaintiff not to have been trustworthy
as a witness. The two officers, on the other hand, were credible and,
at least
in the present context, I prefer their evidence.
I
hold that the three officers followed the plaintiff into the shop and
asked him for his firearm licence. The defendants' witnesses
testified that instead of producing his licence, the plaintiff
reacted with aggression towards them. Ms Delport, like the plaintiff,
did not testify to the fact that the only the three officers entered
at first. If the plaintiff had during this scene produced
his
licence, he would certainly have said so and Ms Delport would have
done likewise.
I
hold that when Mashile asked the plaintiff for his firearm licence on
the first occasion he did not produce it.
The
evidence of Mashile and Bisone that they then tried to disarm the
plaintiff makes sense and can on the probabilities be accepted.
It is
common cause that by the time the reinforcements arrived, the
plaintiff still had his firearm.
It
follows that this first attempt by Mashile and Bisone must have
failed as they toid the court it had.
As
for the scene during which a number of police officers entered the
shop, the plaintiffs version is inherently improbable: it
simply
makes no sense that five or six policemen for no apparent reason
would have burst into the shop, would have manhandled and
would have
arrested the plaintiff. In this regard it is of note that according
to the plaintiff and to the two officers Ms Delport
was present when
the men burst into the shop. She, however, testified that she was in
the office and did not see the men coming
in and tackling the
plaintiff. This difference is indicative thereof that Ms Delport knew
the true facts and preferred to take
herself away from the scene
rather than to confirm the plaintiffs false version. The version of
Mashile and Bisone that they called
for reinforcements as a result of
their first experience inside the shop is probable. The defendants'
version of how the plaintiff
was disarmed and arrested is accepted
and that of the plaintiff, as far as it differs from that of the
defendants, is rejected
as false.
It
is common cause that when the reinforcements entered the shop,
Mashile again asked for the plaintiffs licence. An important question
now arises. Must Ms Delport's evidence be accepted when she said that
she fetched the plaintiffs licence but was rebuffed when
she tried to
show it to the p9!ice . The plaintiff supported the evidence while
Mashile and Bisone denied it. It is common cause
that the plaintiff
at all relevant times had a licence for the firearm. It is not common
cause, however, that at the time he had
it with him or within easy
reach. It is improbable, if the licence was available, that Ms
Delport would not have
shown
it to the police when they had arrested the plaintiff. Therefore, the
real question is whether the licence was available.
The investigating
officer, Khoza, testified that later in the evening when he asked the
plaintiff about the licence, the latter
said that he would produce it
in court. That indicates that it was not readily available at the
time. Against that must be weighed
Ms Delport's further evidence that
she took it to the police station. In my view the inherent
probabilities neither show that the
licence was available nor do they
show the converse.
It
follows that this issue falls to be decided on the credibility of the
plaintiff and Ms Delport on the one hand and of Mashile,
Bisone and
Khoza on the other. For reasons that I have given the plaintiff was
not a credible witness. In addition to those reasons
I might add that
he was clearly prepared in evidence to change his version whenever it
suited him. I refer, for instance, to the
plaintiffs initial attempt
to convey that he was held until about midnight. When the records
gainsaid that, he simply changed his
evidence. His narrative of the
events was also inconsistent with a letter that he wrote to the
police and with a statement that
he had made. In sum, the plaintiff
was an unreliable witness. I have pointed out that Ms Delport did not
testify to the fact that
only the three offices came into the shop.
For reasons that I have given, I hold that they did. Mashile and
Bisone said that, when
they entered, there was a woman in the shop
with the plaintiff. On the evidence that could only have been Ms
Delport. ! can find
no reason why the two policemen would have lied
about Ms Delport's presence on the first occasion. Accordingly, her
evidence that
she was in the office at all times is not
true.
The same applies, for reasons I have given, to her evidence that she
was not present when the men tackled and arrested the
plaintiff.
Also, unaware of the plaintiff's changed evidence, Ms Delport
maintained, in the face of recorded times, that the plaintiff
was
only released by midnight. Her evidence that she, the plaintiff's
fiance, produced the licence must therefore be treated circumspectly:
She had reason to be biased in favour of the plaintiff and there are
indications that her evidence was biased indeed.
I
have pointed out that Mashile's evidence did not give a clear
chronological account of events. For reasons that I have pointed
out,
Bisone's evidence is also not beyond criticism. Despite these
criticisms, I do not regard Mashile and Bisone as having been
deliberately untruthful. They generally were good witnesses and the
criticism may be due to memory loss as to detail. As for the
investigating officer Khoza, his recollection of events was vague and
he did not know much about the case. I have, however, no
reason to
doubt his evidence that the plaintiff told him that he would show his
licence to the magistrate.
In
summary, I prefer the defendants' version that no licence was
produced to that of Ms Delport that she produced the licence. Ms
Delport's evidence is rejected as false.
Mashile
and Bisone testified that, when the plaintiff did not produce the
licence, they first attempted to take the firearm. When
that failed,
they called reinforcements and when the plaintiff was told that they
would take his firearm,
he
threatened to blow their heads off. The plaintiff denied all of these
but he did not dispute that hard words fell between him
and the
police officers.
It
is held that the plaintiff threatened the police when they tried to
disarm
him.
It
is not in issue that the police ultimately disarmed the plaintiff. In
this respect, the plaintiff testified that his gun was
in a holster
while the police officers said the opposite. For reasons given, I
prefer the evidence of the officers. Moreover, the
plaintiff
testified that the police took his holster with the gun. He said that
they did not book it into the SAP 13-store, however.
I find this
evidence nothing but a transparent attempt to imply that the police
did away with the holster for an improper purpose.
Although Mashile
later said to Moodley that the plaintiff was also arrested for
carrying an unholstered and exposed gun, that is
not what he was
charged with, in the circumstances the police on the night in
question had no reason to dispose of the holster.
The probable fact
is that the plaintiff did not have a holster.
Mashile
and Bisone said that they thought that the plaintiff was drunk. They
based that on the smell of liquor on his breath and
his behaviour. It
is not in issue that the plaintiff had been drinking and his breath
would have smelt of liquor. His behaviour,
as I have held it to have
been, certainly was consistent with a man who had drunk too much.
It
is held that Mashile and Bisone had reasonable grounds for thinking
that the plaintiff was under the influence of liquor.
The
plaintiff was taken to the Pretoria West police station where he
arrived at about 18h10. Paperwork in connection with his arrest
was
done. By 18h35 he was at the hospital where his blood/alcohol
sampling was done. The plaintiff testified that, at the police
station, he was put into a filthy holding cell where other detainees
uttered threats. The police witnesses all denied that the
plaintiff
was detained in the holding cell. Their evidence was that he was kept
in an office where the paperwork was done until
he was taken to the
hospital. Upon his return he was released on bail. In view of the
time that he spent at the police station,
it is improbable that the
plaintiff was detained in a holding cell. His evidence in that regard
is, in my view, yet another example
of an effort on his part to
vilify the police.
To
sum up I find the facts as follows: Mashile and the other officers
saw the plaintiff in public wearing a gun, not in holster
and
exposed. Mashile cautioned the plaintiff to cover the gun. The
plaintiff aggressively challenged Mashile to arrest him. Mashile,
Bisone and Khoza parked their vehicle and followed the plaintiff into
his shop. Inside the shop the police officers, two of whom
were in
uniform, identified themselves and asked the plaintiff for his
licence. The plaintiff, drinking a beer, did not produce
the licence
but hurled aggressive abuse at the officers. Mashile asked him to
hand over his gun but the plaintiff refused. Mashile
and Bisone tried
to take the plaintiffs gun but did not succeed. The plaintiff and his
friend pushed them out of the shop. Outside
the officers called for
backup. Several police officers, some in uniform, arrived. The police
entered the shop again and Mashile
again asked for the plaintiffs
licence.
It
was not produced. Mashile again asked the plaintiff to hand over his
gun but the plaintiff threatened to shoot them if they tried
to take
his gun. The police then took the gun and arrested the plaintiff. The
police officers had reasonable grounds for believing
that the
plaintiff was under the influence of liquor. The plaintiff was
arrested on charges of possessing a firearm without a licence,
of
possessing a firearm while under the influence of liquor and of
intimidation. They put him into the police van and took him
to the
Pretoria West police station. There the plaintiff was held in an
office and the paperwork pertaining to his arrest was done.
The
plaintiff said that he would show his licence to the court. He was
then taken for blood/alcohol sampling and upon his return,
he was
released on bail at about 22h01. The plaintiff did have a licence.
After a few court appearances the case against the plaintiff
was
withdrawn.
I
shall now consider each of the grounds upon which the plaintiff
claims damages.
The
plaintiffs first claim is for assault in that Mashile pushed and
shoved him in the presence of clients and friends. It may be
accepted
that that there were pushing and shoving when Mashile and Bisone
tried to take the firearm during the first scene inside
the shop.
This was, however, preceded by Mashile's fruitless request that the
plaintiff must produce the licence for the firearm
that he was
carrying with him.
Section 107(1)
of the
Firearms Control Act, 60 of
2000
provides: "Any person who carries with him or her a firearm
must at the request of a police official ... produce the licence,
permit or authorisation, as the case may be, in respect of such
firearm for inspection."
Section 107(3)
of the Act provides: "If
a person fails to comply with subsection (1)..., the police official
... may seize the firearm without
a warrant and keep the firearm in
custody until the licence, permit or authorisation is produced or the
firearm is disposed of
in terms of this Act." It follows that
Mashile was engaged in a lawful attempt to seize the plaintiffs
firearm. The pushing
and shoving came about because the plaintiff
unlawfully resisted the attempt. The plaintiffs first claim cannot
succeed.
The
plaintiffs second claim is also for assault in that the policemen who
arrested him also assaulted him by hitting, kicking and
cuffing him.
It is common cause that the plaintiff was arrested and handcuffed. It
may be accepted that in the process of the arrest
some bumping and
shoving took place. The plaintiff did not testify that he was hit and
kicked although he did mention that somebody
pushed him with a knee.
Given the fact that the police far outnumbered the plaintiff and his
friend, I prefer the evidence of the
defendants' witnesses that the
plaintiff was arrested without unnecessary force. Therefore, this
claim of the plaintiff can only
succeed if it is found that he was
unlawfully arrested. It is to that question that I now turn.
It
being common cause that the plaintiff was arrested, the onus was on
the defendants to prove that the arrest was lawful. In their
plea the
defendants contended that the arrest was lawful in terms of
section
40(1
)(a) alternatively
section 40(1
)(b) of the
Criminal Procedure
Act, 51 of 1977
in respect of or on the three charges that I have
mentioned earWer.
Section
40(1
)(a) of the
Criminal Procedure Act provides
that a peace officer
(it is not in issue that the police officers are peace officers) "may
without warrant arrest any person
... who commits or attempts to
commit any offence in his presence". In order to prove that the
arrest was lawful, the defendants
had to prove on a balance of
probabilities that acts performed by the plaintiff in the presence of
the arresting policeman actually
constituted an offence. The
defendants expressly pleaded that the relevant offences are
possession of an unlicensed firearm, possession
of a firearm while
under the influence of alcohol and intimidation.
It
is common cause that the actual arrest was not performed by Mashile
but by an unknown officer acting on Mashile's orders. On
behalf of
the plaintiff no point was made of this and I proceed on the footing
that the arrest will have been lawful if the offence
was committed in
the presence of Mashile who ordered the arrest and was present when
it was carried out.
The
first two alleged offences may be dealt with summarily. While he did
not produce it and did not say he had one, it is common
cause that
the plaintiff had a licence for the firearm he was carrying. On the
factual findings that I have made the plaintiff
may have committed
several offences
1
pertaining to his carrying of the firearm, but he did not commit the
offence of being in possession of an unlicensed firearm. Under
section 120(4)
of the
Firearms Control Act it
is an offence "to
handle a firearm ... while under the influence of a substance which
has
an intoxicating or a narcotic effect." (Underlining supplied.) I
have not been referred to any statutory or other provision
that
proscribes the possession of a firearm while under the influence of
alcohol nor have I found any. The evidence is not that
the plaintiff
handled the firearm.
The
offence of intimidation is created by
sections 1
and
1A
of the
Intimidation Act, 72 of 1982
.
Section 1A
deals with intimidation of
the general public, a particular section of the population or the
inhabitants of a particular area.
The section clearly is not
applicable.
Section 1
of the
Intimidation Act proscribes
, among
others, threats to kill, assault or injure "any person of a
particular nature, class or kind" where such threats
are made
with the intent to compel such person to "do or to abstain from
doing any act". On the evidence only the plaintiffs
threat to
blow off the heads of the officers could qualify as an act of
intimidation. What his intention was when he uttered the
words was,
however, not canvassed in cross examination or at all. Accordingly
the defendants did not prove that the plaintiff actually
committed
the offence of intimidation.
It
is concluded that the defendants did not prove that the arrest was
lawful under
section 40(1
)(a) of the
Criminal Procedure Act: The
offences that the defendants raised in the plea were not proved.
Section
40(1
)(b) of the
Criminal Procedure Act provides
that a peace officer
"may without warrant arrest any person ... whom he reasonably
suspects of having committed an offence
referred to in Schedule 1 If
the following jurisdictional facts are present, a peace officer has a
discretion to arrest a person
without a warrant: "(i) the
arrestor must be a peace officer; (ii) the arrestor must entertain a
suspicion; (iii) the suspicion
must be that the suspect (the
arrestee) committed an offence referred to in Schedule I; and (iv)
the suspicion must rest on reasonable
grounds". (Minister of
Safety and Security v Sekhota
2011 (5) SA 367
(SCA). The
jurisdictional facts are set out in paragraph 6.)
Mashile
is a peace officer.
Mashile
testified that, when the plaintiff did not produce his licence and
did not say he had one, he (Mashile) concluded that the
plaintiff did
not have a licence.
The
offence of possession of a firearm is for the following reasons an
offence mentioned in Schedule I of the
Criminal Procedure Act: In
terms of
section 3(1
)(a) read with
section 120(1)
of the
Firearms
Control Act it
is an offence to possess a firearm without a licence
for that firearm. In terms of
section 121
read with Schedule 4 to the
Firearms Control Act a
person in possession of an unlicensed firearm
can be sentenced to a maximum of 15 years imprisonment without the
option of a fine.
One of the offences mentioned in Schedule I of the
Criminal Procedure Act is
an offence "the punishment wherefor
may be a period of imprisonment exceeding six months without the
option of a fine".
The
remaining question is whether Mashile's suspicion (or, as he put it,
his conclusion) rested on reasonable grounds. That must
be determined
objectively having regard to the circumstances of the case. The fact
that the plaintiff wore the gun exposed and
in public tends to
indicate that he did have a licence. That would have played a role
with a peace officer in Mashile's position.
Against that must be
weighed the plaintiffs conduct, his failure to produce the licence
and his failure to say that he has a licence.
In my view Mashile was
reasonably entitled to assume that the plaintiff did not have a
licence and was trying to avoid the consequences
thereof by way of
his bravado.
It
is concluded that Mashile was in terms of
section 40(1
)(b) of the
Criminal Procedure Act entitled
to arrest the plaintiff without a
warrant on a reasonable suspicion that he was in possession of a
firearm without a licence.
In
the result the plaintiffs claim for unlawful arrest and also his
second claim for assault must fail.
For
the same reasons the plaintiffs claim for malicious prosecution must
fail.
Costs
must follow the event.
In
the result the following order is made: The plaintiffs claims are
dismissed with costs.
B.R.
du Plessis Judge of the High Court
On
Behalf of the Plaintiff: Serfontein Attorney
FNB
Building, Mezzanine Floor
Church
Square
Pretoria
Adv.
M. Olivier
On
Behalf of the Defendants: State Attorney Pretoria
Bothongo
Heights 8th Floor
167
Andries Street Pretoria
Adv.
M.S. Phaswane
1
He
carried a firearm in a public place without a holster and not
completely covered
(Section 80(1)(a)
and
80
(2) of the
Firearms
Control Act read
with
section 120(1)(a)
thereof). He contravened
sections 107(1)
and
107
(3) of the
Firearms Control Act.