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2024
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[2024] ZALMPPHC 15
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Tlaka v Minister of Police (HCA20/2021) [2024] ZALMPPHC 15 (7 February 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
REPORTABLE:
NO
/YES
OF
INTEREEST TO OTHER JUDGES:
NO
/YES
REVISED
07/02/2024
CASE
NO: HCA20/2021
In
the matter
between:
LULU
JOHANNES TLAKA
APPELLANT
and
MINISTER
OF POLICE
RESPONDENT
JUDGMENT
NAUDE-ODENDAAL
J:
[1]
This is an
appeal against the whole judgment
and order
handed down in the Magistrates
Court for the
District
of
Elias Motsoaledi
held at
Groblersdal
on
the 12
th
of March
2021
by
Magistrate
RJ Marais,
in terms of
which it was found that the arrest and detention of the Appellant
was
lawful and his
claim was dismissed with costs.
[2]
The Appellant
contended that the Magistrate erred
in
finding that
the offence
of
negligence
-
loss
of a firearm
,
carries
the maximum
penalty
of 5 years
imprisonment
without
the option of
a fine and is therefore a Schedule 1 offence. Further, the Magistrate
erred in taking into consideration
that
the
Appellant
admitted
during
cross-examination
that his arrest was lawful.
It was further
contended by the Appellant
that
the Magistrate
erred in not taking into consideration
whether the
arresting officer
exercised
a
discretion
to
arrest
the
Appellant
or
whether
he properly
exercised such a discretion
.
According
to
the Appellant the
Magistrate
erred in not
dealing with the claim for unlawful detention of the Appellant.
[3]
The
Appellant's Counsel, Adv. T.P. Motlatle, however abandoned the ground
that the court a
quo
erred in
holding that negligent loss of a firearm is a Schedule 1 offence.
BACKGROUND
FACTS:
[4]
The Appellant
instituted action against the Respondent for his alleged unlawful
arrest
and
detention on or about the 2
n
d
day of April 2017
without a warrant or any just cause to do so by members
of the South
African Police Services acting in the course and scope of their
employment.
[5]
The Respondent
admitted the arrest and further detention of the Appellant by its
members but denied that it was unlawful or without
just cause and
alleged that the arrest of the Appellant was on a reasonable
suspicion that he committed a Schedule
1, Act 51
of 1977, offence.
[6]
On or about 2
April 2017 at the Village of Ramogwerane, Constable Mohlala, a member
of the South
African
Police
Services, arrested the Appellant.
The arrest
followed a complaint by members of the public that there was a young
man (the Appellant's
son) at the
tavern of Tiago who is in possession
of a firearm
pointing at people with the said firearm.
[7]
Constable
Mohlala went to the tavern and was then pointed to a certain young
man called Somandla.
They searched
him and found
a firearm in his possession. When they enquired from him as to whose
firearm it was, he answered by stating that it
was his father's.
The firearm
had 1O live rounds in
its
magazine.
[8]
Somandla then
showed Constable Mohlala where his parental homestead was.
They
arrived
at
the homestead
and
knocked.
The
Appellant
opened the door.
Somandla said
that he was his father. The Appellant confirmed that Somandla
was
his son.
Constable
Mohlala asked the Appellant
whether
he had
a firearm,
where
upon
the
Appellant
answered in
the affirmative and said that his firearm was in the safe.
[9]
Constable
Mohlala showed the Appellant
the firearm
found in
possession of Somandla
and asked the
Appellant
whether
the firearm
was his, to which he answered no.
Constable
Mohlala then asked the Appellant to show him his own firearm.
The
Appellant
said the firearm was in the room and asked Constable
Mohlala
to follow him.
When they
arrived in the room, the Appellant showed Constable Mohlala a blue
trunk and in the
trunk was a
safe.
[10]
The safe was not mounted to the floor or the wall. Constable Mohlala
asked the Appellant for the keys of
the safe to which the Appellant
replied that he did not know where the keys to the safe were.
Constable Mohlala then picked the
safe up and shook it. There was
nothing inside. Only after a while and after several more questions
were asked by Constable Mohlala,
did the Appellant say that the key
to the safe was under the carpet.
[11]
The Appellant
then opened the safe and indeed it was discovered
that there was
no firearm in the safe.
Constable
Mohlala further enquired from the Appellant where his firearm was.
The Appellant
answered by
saying that according to him the firearm was kept inside the said
safe.
Constable
Mohlala asked the Appellant for his firearm license. Upon comparing
the firearm
license and
the serial number of the firearm
found in the
possession of Somandla, it was discovered that it was two different
firearms.
[12]
Constable
Mohlala questioned the Appellant further, but the
Appellant
could not give
any clear explanation about the
whereabouts
of his
firearm
.
The
Appellant and his son were then arrested after they were informed
of
their
rights
and
that they
are being
arrested
for
negligent
loss or
handling of a firearm. They were
taken
to the police
station, were charged and locked
up at
around
05h30
the morning
of
the
3
rd
of
April
2017.
They were
taken to court the very same day
to
appear
in
court.
[13]
Under
cross-examination, it was put to Constable Mohlala that the Appellant
explained to him that his firearm was seized from him
during the year
2011 at Witpoort Police Station.
Constable
Mohlala denied that the Appellant ever told him that his firearm was
confiscated by Witpoort Police Station.
Constable
Mohlala stated
that his role was only that of
an
arresting
officer because the Appellant could not explain the
whereabouts
of his
firearm.
[14]
The Second
Witness called on behalf of the Defendant was Constable Msiza. She
was the investigating officer in the matter concerning
the Appellant.
She confirmed that the Appellant informed her that his firearm was
seized by the Lephalale Police and that she later
went to Lephalale
to investigate the matter.
She however
could not find
the Appellant's firearm.
[15]
It
only
transpired
later
that
the
Appellant's
firearm
was
seized
by
the Police at
Witpoort Police Station.
The seized
firearm was returned to the Appellant after his arrest on 13 December
2017.
[16]
The Appellant
testified that the reason for his arrest was because his son had an
illegal firearm and when the police questioned
his son about the
firearm,
he
informed
them
that it
was
the
Appellant's.
The Appellant
further testified in chief that he went with the police officers to
his home. When they arrived at his house, the
police officers asked
him where his firearm was, and he (the Appellant)
told them that
it was inside the safe. The police officers then asked him to open
the safe, but when he opened the safe the firearm
was not there.
[17]
In a follow up
question in examination in chief, the Appellant changed his version
and said that the police asked him where his
firearm was
.
He then
testified that he informed them that his firearm was at Lephalale.
They asked him
to open the safe, but it was empty.
[18]
The police
officers then asked the Appellant to go to the police station with
them. It was around half past three in the morning.
The Appellant
confirmed that he was taken to court the very same day. It was a
Monday. His case was not on the roll and subsequently
he was
released.
[19]
Under
cross-examination the
Appellant
confirmed that
he was indeed arrested in the early hours of Sunday morning, 3
April
2017. He
stated in cross-examination that he informed the arresting
officer
that his
firearm was at Witpoort
Police Station
-
which
is contradictory
to
what
he testified
in examination
in chief.
[20]
In a follow-up
question under cross-examination, the
Appellant
stated that he
only told the Investigating Officer where his firearm
was
and not the
Arresting Officer.
[21]
The
Appellant
under
cross-examination
further
confirmed
that
he is not disputing that the police did not arrest him wrongfully and
unlawfully, in other words, he admitted that his arrest
was
lawful.
THE
LAW:
[22]
The Respondent
raised its defence in terms of
Section
40(1)(b)
of
the
Criminal
Procedure Act, 51
of
1977,
as amended.
Section
40(1)(b)
provides
that,
"a
peace
officer
may,
without
a
warrant,
arrest any person whom
he
reasonably
suspects
of
having
committed
an
offence referred to
in
Schedule
1, other
than
the
offence
of escaping from lawful
custody."
[23]
Having
admitted the arrest of the Appellant
without
a
warrant
of arrest
,
the onus to
prove that the arrest was lawful, rest on the Respondent.
The Respondent
had to prove on a preponderance of probabilities that the Arresting
Officer
at the time of
the arrest, harboured
a
reasonable
suspicion that
the Appellant had committed a Schedule 1 offence
,
which
must
be objectively justifiable.
[24]
The
jurisdictional pillars for reliance on
Section
40(1)(b)
of the
Criminal Procedure
Act,
51
of
1977
,
has
to
be met by
the
Respondent.
The legal
position
regarding
the
justification of
a
warrantless
arrest
in terms
of
Section
40(1)(b)
of the
Criminal
Procedure
Act,
51
of
1977
was
stated
as follows in
Duncan
v
Minister
of
Law
and
Order
1986
(2)
SA 805
(A)
at
818G-H:-
"The
so-called
jurisdictional
facts
which must exist before the power conferred by s40(1)(b) of the
present Act may be invoked, are
as
follows:
1)
The
arrestor
must be a peace officer.
2)
He must
entertain
a
suspicion.
3)
It
must
be
a
suspicion
that the arrestee committed an offence referred to in Schedule 1 to
the Act (other than one particular offence)
.
4)
That
suspicion must rest on reasonable grounds.
If
the
jurisdictional
requirements
are
satisfied
,
the
peace
officer
may
invoke
the
power
conferred
by
the
subsection,
i
e,
he
may
arrest
the
suspect.
In
other
words,
he then
has
a
discretion
as
to
whether
or not
to exercise
that
power
(cf
Hoigate-Mohammed
v
Puke
(1984)
1
All
E
R
1054
(HL) 1057).
No
doubt the discretion must be properly
exercised.
But the
grounds on which the exercise of such a discretion can be questioned
are
narrowly
ci
r
cumsc
r
ib
e
d
.
Whether
every
improper
application
of
a
discretion conferred by the subsection will render an
arrest
unlawful,
need not be considered
because
it does not arise in this
case.
All that
need be said
for
the
purposes
of
the
point
under
consideration
is
that
an
exercise
of
the
discretion
in
question
will
be
clearly
unlawful
if
the
arrestor
knowingly
invokes
the power to arrest for a purpose not contemplated
by the
legislator.
But
in
such
a
case,
as
is
generally
the
rule
where
the
exercise
of a
discretion
is
questioned
,
the
.
onus
to establish
the
improper object of the arrestor will rest on the arrestee (cf
Divisional
Commissioner
of
S
A
Police,
Witwatersrand
Area,
and
Others
v
S
A
Associated
Newspapers
Ltd
and
Another
1966
(2)
SA
502
(A)
512;
Groenewald v Minister
van Justisie
1973 (3) SA 877
(A) 884)"
[25]
In the present
matter, it is common cause that the arresting officer
was
Constable
Mohlala.
The
Appellant
when
confronted
with
the
allegations
by
Constable Mohlala that the weapon
which
his son
Somandla
was
in possession
of and pointed at people at the tavern
was
his, he told
Constable
Mohlala
that
his firearm
was
inside
the
safe.
When
the
safe
was
examined by
Constable Mohlala it
was
found that
there
was
no
weapon in
the
safe.
The serial
number of the
weapon
that
was
used by
Somandla at the tavern and the serial number that the
Appellant's
license had
were
different.
[26]
The
Appellant
did not have
the
licensed
firearm in is possession
or
on his
person
and the firearm
was
not in the
safe
as
required by
law.
The Appellant
violated a
comprehensive
and effective
system of
firearms
control established in terms of
the
Firearms
Control
Act,
28
of
2006.
[27]
In
Duncan
v
Minister of Law and Order
1986
(2) SA
806
(A) at 8140-E,
the
following
was
held:-
"The
test is not
whether
a
policeman
believes
he has reason to suspect
,
but
whether on an objective approach
,
he in
fact has reasonable grounds for his suspicion."
[28]
In
Minister
of Safety and Security
v Sipho
Owen Magashulu 2015 (1) SA
SACR
409
(SCA)
it was
held that,
"the
suspicion
of
the
arresting officer is reasonably held if, on the objective approach
,
the
arresting officer has reasonable grounds for his suspicion."
[29]
In the present
matter, the Appellant on his own version confirmed that he only told
the Investigating Officer that his firearm was
at Lephalale,
and later he
changed his version to Witpoort.
It is common
cause that
the
Investigating
Officer, Constable Msiza, only became involved after the Appellant
was arrested.
At the time
of the arrest,
the Appellant
failed to give
a reasonable explanation about the whereabouts of his firearm.
[30]
After the
Appellant told Constable Mohlala that his firearm was in the safe,
and Constable Mohlala, after having been shown the
safe, did not find
the firearm in it, Constable Mohlala had reasonable grounds for his
suspicion.
[31]
The test
whether a suspicion is reasonably entertained within the meaning of
Section 40(1)(b)
is objective.
The question
is
whether
a reasonable
man in Constable Mohlala's position and possessed of the same
information have considered
that there
were good and sufficient grounds for suspecting
that the
Appellant
was
guilty of negligent
loss or
handling of a firearm. (See
S
v Nel and Another
1980 (4) SA 28
(E) at 334; also see Mabola
and
Another
v
Minister
of
Law
&
Order
1988
(2) SA
(SE) at
658 E-H.)
[32]
In the present
matter, Constable Mohlala entertained a belief that was reasonable
when he
arrested
the
Appellant
after
the Appellant
told him that
his firearm was in his safe, which was found to be empty and after
the Appellant could not give him a reasonable explanation
of where
his firearm was.
[33]
Considering
the time of arrest, the fact that a firearm,
which
was alleged to
belong
to the Appellant by his son, for which the Appellant did not have a
license, and considering the fact that the Appellant
failed to give a
reasonable explanation of the whereabouts of his firearm at the time
of arrest
and
in fact
what
emanates
from
the
record,
attempted
to play cat
and mouse
with
Constable
Mohlala
in telling
him
at
first
that the
firearm was in
his safe,
then
he did not know where
the
key
to the safe
was
,
later
he informed Constable Mohlala that the key
to
the safe
was
under the
carpet
,
and
once the safe was opened,
it
was
found to
be
empty
,
it should
be
found that
Constable Mohlala exercised his discretion
properly
when
arresting
the Appellant.
It
should
be borne
in
mind
that
this
arrest
in
fact
occurred
in the
early
hours
of the
Monday-morning, 3
April
2017
and
the Appellant
was immediately taken to court the very same day.
[34]
In this
court's view, the court
a
quo
was
correct in dismissing
the
Appellant's
claim.
The court
a
quo
did
not
misdirect
itself
when
it
found
that
the
Respondent proved on a balance of probabilities that the arresting
officer
had
a reasonable
suspicion that
the
Appellant
committed
a Schedule 1
offence and the
resulting
arrest
without
a
warrant
was
lawful.
[35]
This
court
is further of
the view, that under
the
circumstances
in the present
matter, the police officers exercised their
discretion
properly when
they
detained
the
Appellant
for
a
very
short
period
(at
most
approximately
3 hours) to
bring him before court on the
very
same day.
Constable
Msiza testified
that
she
consulted
with
the Appellant
at around
07h00
to
07h30 am
on the morning
of
the
3
rd
of April 2017.
The
Appellant
was charged
and taken to
the cells.
In
the result the appeal stands to fail.
[36]
Accordingly,
this court
therefore makes the following order:-
1.
The
appeal
is dismissed
with costs.
NAUDE-ODENDAAL
J:
JUDGE
OF THE
HIGH
COURT,
LIMPOPO
DIVISION,
POLOKWANE
I
AGREE:
M.F.
KGANYAGO
JUDGE
OF THE HIGH COURT,
LIMPOPO
DIVISION,
POLOKWANE
APPEARANCES:
HEARD
ON:
10
NOVEMBER
2023
JUDGMENT
DELIVERED
ON:
7
FEBRUARY 2024
For
the Appellant:
Adv.
T.P.
Motlatle
Instructed
by:
Ratale
Mashifane
Inc.
Attorneys
C/0
Mmakola
Matsimela Inc
.
Polokwane
For
the
Respondent:
Adv.
P.M.
Maake
Instructed
by:
Office
of the
State
Attorney
Polokwane