Minister of Safety and Security and Another v Gaqa (190/02) [2002] ZAWCHC 9 (26 February 2002)

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[2002] ZAWCHC 9
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Minister of Safety and Security and Another v Gaqa (190/02) [2002] ZAWCHC 9; 2002 (1) SACR 654 (C) (26 February 2002)

Republic of South
Africa
REPORTABLE
IN THE HIGH COURT OF
SOUTH AFRICA
(Cape
of Good Hope Provincial Division)
Case No:
190/02
In the matter between
THE MINISTER OF
SAFETY AND SECURITY
First
Applicant
IVAN JACOBUS VAN
DEN HEEVER
Second
Applicant
and
SIZWE ALFRED
GAQA
Respondent
JUDGMENT DELIVERED ON 26
FEBRUARY 2002
DESAI, J:
A bullet is lodged in the respondent’s
leg and the applicants seek the sanction of this Court to have the
bullet surgically removed
for the purpose of ballistic tests. They
have reason to believe that the respondent was shot and injured in
the course of a botched
robbery in which both the victims were
killed. The respondent resists the application, and the removal of
the bullet, on several
grounds.
The circumstances
which led to the arrest of the respondent on the charges of murder
are set out in the affidavit of the second applicant,
Inspector
Ivan
Jacobus van den Heever
,
who is the investigating officer in the case. It appears that Mr
Mabona
Boesman (“Boesman”)
was
the owner of the
Helpmekaar
Tavern
in
Khayelitsha,
Cape.
At about 12:00 on 31 December 2001 he arrived at the First National
Bank at Bellville. He was accompanied by a security guard
in his
employ, one Mr
Boxser
Bangani (“Bangani”)
.
They were accosted by two other men and shots were fired, resulting
in the death of
Bangani
at the scene and
Boesman
a short while later at the Tygerberg Hospital.
Second applicant
found R90 000,00 in cash in the boot of
Boesman’s
car. The money was the apparent motive for the attack. An
eyewitness told second applicant that one of the assailants had been
shot and injured and second applicant also found at the scene a
Norico
9mm pistol and an
Astra
.38 “special” revolver which was licensed in
Boesman’s
name. Barely two days later on 2 January 2002, second applicant
learnt from an informer that the respondent had been involved in
the
aforementioned incident and had bullet wounds on his thighs. The
name of the informer is not mentioned as second applicant believes
that the public exposure of his name could expose him to serious
harm.
In any event,
respondent was detained the next morning at New Crossroads, with both
his thighs bandaged. He indicated to the second
applicant that he
had been involved in a scuffle at the
Zama
Tavern
the previous day when someone interfered with his girlfriend
Nosipho
and that he had been injured with a screwdriver. He also mentioned
that he had received medical treatment at the
G
F Jooste Hospital
.
Second applicant and his colleagues thereafter took the respondent
to the
G
F Jooste Hospital
.
It appeared that the hospital had no record of the respondent
receiving any treatment. The owner of the
Zama
Tavern
also denied that the incident described by the respondent had taken
place the previous day. Furthermore,
Nosipho
,
in the respondent’s presence, denied that he was her boyfriend and
had no knowledge of any injuries sustained by him with a screwdriver.
Second applicant then arrested the respondent on the two murder
charges.
On 3 January 2002
the respondent was taken to Dr
K
N L Linda
,
the district surgeon, at Goodwood. As both Dr
Linda
and the respondent are Xhosa speaking, the consultation took place in
Xhosa. The respondent reiterated his earlier explanation for
his
injuries and also told Dr
Linda
that he had been stabbed with a screwdriver. He described how he was
stabbed in his legs while lying on his stomach. The respondent
also
told Dr
Linda
that he had been treated at the
G
F Jooste Hospital
but had not been given either a hospital card or a reference number.
Dr
Linda
noted that the respondent’s wounds were slightly septic bullet
wounds which had not been professionally treated. X-rays were taken
and the x-ray of the respondent’s left leg showed a clearly visible
bullet. Dr
Linda
pointed this out to the respondent. He did not initially respond.
At a later stage, however, he told Dr
Linda
that he did not want the bullet removed.
The next day the
respondent informed the second applicant that he in fact had been
shot by an unknown person at Guguletu. The incident
had not been
reported to the police as the person who had shot him had apologised.
He could not furnish either the name or address
of the person that
had allegedly shot him. The second applicant also arranged for the
X-ray to be examined by Captain
Frans
Maritz
of the police forensic laboratory. Captain
Maritz
is of the opinion that the bullet visible on the X-ray is either a
.38 or a .357 calibre bullet. If the bullet is removed from the
respondent’s leg and made available to him, Captain
Maritz
is of the opinion that he would be able to ascertain if it was fired
from the .38 revolver licensed in the name of
Boesman
.
According to second applicant, none of the eyewitnesses are in a
position to properly identify
Boesman
and
Bangani’s
assailant or assailants. The only available evidence is the bullet
which may or may not link the respondent to the murders.
An orthopaedic
surgeon,
Frans
Steyn
,
is of the view that the removal of the bullet will be a relatively
simple and safe procedure under general anaesthetic. In the
circumstances, the second applicant has obtained a search warrant to
secure the bullet but is unable to act in terms thereof without
employing reasonable force as the respondent refuses to permit the
removal of the bullet from his leg.
The respondent
denies that he was involved in the attack upon
Boesman
and
Bangani
and alleges that the wounds sustained by him are not connected to
that incident. He denies that he told second applicant that he
sustained the injury at the
Zama
Tavern
.
He says that he was involved in a shooting incident at the
Strandfontein
beach
on 1 January 2002. He was treated at the
G
F Jooste
Hospital
but does not know whether his friends gave the hospital his correct
name. He was drunk and cannot remember much. He admits that
Nosipho
is in fact not his girlfriend. He denies telling Dr
Linda
that he had been injured with a screwdriver. He alleges that the
second applicant told Dr
Linda
that he claimed that he had been injured with a screwdriver. The
respondent admits telling Dr
Linda
that he did not want the bullet in his leg to be removed. He
maintains that this is not a strange request. He was told that the
bullet is lodged in his flesh and is not endangering any blood vessel
or bone structure. It was, he believes, therefore unnecessary
for
the bullet to be removed. He is of the view that the medical
procedure could endanger his life and result in pain, suffering
and
inconvenience. Furthermore, in his community, it is not strange for
people who had been shot to walk around with the bullet
in their
bodies, especially if it was not life-threatening. He contends that
if the relief sought by the applicants is granted,
his rights in
terms of the Constitution would be violated. The specific rights
which would be violated are not mentioned by him.
Mr
J
C Marais
,
who appeared on behalf of the respondent, vigorously contended that
the application should fail. Before dealing with the various
arguments raised by him, I note that, simultaneously with the filing
of his heads of argument, an application was made for the striking
out of certain paragraphs of the affidavits filed by second
applicant. These are the paragraphs which relate to the information
obtained by the second applicant from the informer. Mr
Marais
,
perhaps inadvertently, did not pursue this application in oral
argument but in his heads of argument it is simply contended that
the
paragraphs should be struck out as they are either hearsay or
irrelevant. The information obtained from the informer may be
hearsay, but it is neither inadmissible nor irrelevant. Police often
obtain this sort of information which is then followed up.
In this
instance the information led to the respondent and it is his
condition and conduct which give rise to the reasonable suspicion
that he may be involved in the commission of the murders being
investigated by the second applicant.
Mr
Marais
argued that the applicants herein seek final relief and such relief
should only be granted if the facts as stated by the respondent,
together with the admitted facts in the applicant’s affidavit,
justify such an order (see
Stellenbosch
Farmers’ Winery Limited v Stellenvale Winery (Pty) Ltd
1957(4) SA 234 (C) at 235).
This general rule is qualified by
Corbett,
J
(as he then was) in
Plascon
Evans Paints v Van Riebeeck Paints
1984(3) SA 634 (A) at 634H
as follows:
“
In
certain circumstances the denial by a respondent of facts alleged by
the applicant may not be such as to raise a real genuine
or
bone
fide
dispute of fact.”
Despite
respondent’s denial, there is in fact no real dispute with regard
to the key aspects of this matter. At about the same
time as the
attacks upon the deceased, the respondent sustained a bullet injury.
He does not readily admit that he had sustained
such an injury. The
bullet lodged in his leg is possibly from a .38 revolver. One of the
deceased had a similar firearm and apparently
shot his assailant.
The respondent is linked to the attack by an informer and he has the
bullet in his leg. The respondent’s
denials of what transpired at
Dr
Linda’s
surgery are both far-fetched and untenable. The circumstances in
which he alleges he was shot are equally far-fetched. There is
also
the undisputed evidence of his unprofessionally treated wounds and
the unconvincing and unverified evidence of treatment at
the
G
F Jooste Hospital
.
Assuming Mr
Marais
is correct and that the so-called
Plascon-Evans
rule is applicable for the purposes of the relief sought herein, the
applicants have quite clearly made out a case – and a convincing
one – for final relief.
The next issue
raised by Mr
Marais
,
if I understand him correctly, is the following. He contends that
there is no statutory or common law authorisation for the relief
sought. Section 27 of the Criminal Procedure Act 51 of 1977 (“the
Act”) provides as follows:
“
The police official
who may lawfully search any person may use such force as may be
reasonable and necessary to overcome any resistance
against such
force.”
It is apparent from
this section that the legislation afforded police officers authority
to use any reasonable violence to effect
the search. The violence
itself is not defined. The facts of each case determine the nature
of the force required for the search.
The purposive approach in
interpreting section 27 is probably most appropriate (see in this
regard
Levack
& Others v The Regional Magistrate, Wynberg & Another
1999(4) SA (A) 747 at 751).
Similarly, section
37(1)(c) of the Act permits an official to take such steps as he may
deem necessary in order to ascertain whether
the body of any person
has any mark, characteristic or distinguishing feature or shows any
condition or appearance. While a bullet
is clearly not a mark,
characteristic or distinguishing feature of the respondent’s body,
a police officer may nevertheless take
the necessary steps to
determine whether his body shows the bullet – a condition or
appearance - which may be linked to
Boesman’s
revolver. I am of the view that both the aforementioned sections
permit the violence necessary to remove the bullet.
In
any event, police are obliged to investigate crimes – in this
instance a double murder – in terms of section 205(3) of the
Constitution of the Republic of South Africa 1996 (“the
Constitution”) and, without the bullet, they may be hamstrung in
fulfilling
this constitutional duty.
Finally, Mr
Marais
argued that the violence envisaged by the applicants would result in
several constitutionally guaranteed rights being infringed.
He
contended that every accused has a right to a fair trial, which
includes the right to be presumed innocent, to remain silent
and not
to testify during the proceedings. It also includes the right not to
be compelled to give self-incriminating evidence (sections
35(3)(h)
and (j) of the Constitution). No further reference was made to the
presumption of innocence during the course of oral argument
and it is
unclear as to how applicant’s proposed conduct would impact upon
this right. Mr
Marais
referred on a number of occasions to the removal of the bullet
resulting in the respondent giving self-incriminating evidence.
Somewhat
surprisingly, Mr
Marais
did not refer to any authorities in this regard and did not advance
any arguments why I should not regard the bullet as real evidence
as
opposed to the furnishing of oral and testimonial evidence by the
accused. In other words, why I should differ from
Claasen,
J
in
S
v Huma & Another
1996(1) SA 232 (WLD) at 238A.
I elect not to do so for the reasons set out in that judgment.
Mr
Marais
also referred to the other rights which are potentially infringed by
the relief sought by the applicants. In particular, the right
to
have one’s dignity respected and protected (section 10 of the
Constitution); the right to freedom and security of the person
and
to be free from all forms of violence (sections 12(1)(c) of the
Constitution); the right to bodily and psychological integrity
(section 12(2) of the Constitution).
The proposed
surgical intervention to remove the bullet would undoubtedly be a
serious affront to the respondent’s human dignity
and an act of
state-sanctioned violence against his bodily – and perhaps also
psychological – integrity. The application is
unusual, but not
without precedent. In
Winston
v Lee
[1985] USSC 68
;
470 US 753
1985
the United States Supreme Court was confronted with a similar
problem. An order was sought for the removal of a bullet which could
provide evidence of the suspect’s guilt or innocence in an armed
robbery. The bullet in that case was lodged in the suspect’s
chest
and there was some dispute with regard to the medical risks involved.
There was also, it ultimately appeared, no compelling
need for the
bullet as there was other evidence against the suspect. Concluding
that the search was unreasonable in the circumstances,
Brennan,
J
commented:
“
The reasonableness
of surgical intrusions beneath the skin depends on a case-by-case
approach in which the individual’s interests
in privacy and
security are weighed against society’s interests in conducting the
procedure. In a given case the question whether
the community’s
needs for evidence outweighs the substantial privacy interests at
stake is a delicate one, admitting of few categorical
answers.”
The facts of this case are, of course,
very different. There is little danger of any harm to the respondent
when the bullet is removed.
He contends that the operation could
endanger his life but there is no medical evidence furnished to
support this belief. The orthopaedic
surgeon states categorically
that it would be an uncomplicated procedure. Furthermore, other than
the bullet there is no other evidence
against the respondent. This
case also relates to more serious crime – namely, a double murder.
The order sought,
as I have already indicated, involves the limitation of rights.
Rights are not absolute and in terms of the Constitution,
more
especially section 36(1) thereof, they may be limited if the
limitation is reasonable and justifiable in an open and democratic
society. As stated by
Brand,
J
(as he then was) in
Dotcom
Trading 121 (Pty) Ltd t/a Live Africa Network News v The Honourable
Mr Justice King N.O. & Others
2000(4) All SA 128 (C):
“
The application of
section 36 involves a process of the weighing up of competing values
and ultimately an assessment based on proportionality
which calls for
the balancing of different interests. Inherent in this process of
weighing up is that it can only be done on a case-by-case
basis with
reference to the facts and circumstances of the particular case.”
Adopting the aforementioned approach,
it is apparent that a refusal to assist the applicant in this case
will result in serious crimes
remaining unsolved, law enforcement
stymied and justice diminished in the eyes of the public who have a
direct and substantial interest
in the resolution of such crime.
Respondent’s interests in all the circumstances, are of lesser
significance. Though the intrusion
is substantial, community
interests must prevail in this instance.
In
the result I make the following order:
Second applicant, in his capacity as
a police official, is entitled to use reasonable force, including
any necessary surgical procedure
performed by duly qualified medical
doctors and paramedical personnel in consultation with the
superintendent of the Tygerberg
Hospital, to remove the object
referred to in the search warrant issued on 14 January 2002, a copy
whereof is attached to second
applicant’s supporting affidavit
marked “7” (“the object”) and to seize same in terms of the
provisions of
section 20
of the
Criminal Procedure Act.
The
respondent is directed and
ordered, within 24-hours of the granting of this order, to subject
himself to the necessary surgical
procedure for the removal of the
object, including the furnishing by him of the necessary consent
which by law or otherwise may
be required therefore.
The Sheriff of the above Honourable
Court is hereby directed and ordered to furnish the necessary
consent on behalf of the respondent
should the respondent fail to
comply with the provisions of paragraph 2 above.
Leave is granted to the applicants to
apply to this Court on the same papers, supplemented where
necessary, for an order in terms
whereof respondent be committed to
prison for such period as this Court may deem fit should he fail or
refuse to comply with this
order set out in paragraph 2 above.
Respondent is ordered to pay the
costs of this application.
-------------------------------
DESAI J