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2024
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[2024] ZALMPPHC 59
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Kganakga and Others v Minister of Police (3390/2016; 1636/2016) [2024] ZALMPPHC 59 (7 June 2024)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION,
POLOKWANE
CASE
NO: 3390/2016
1636/2016
In the matter between:
MAMATHUNCHA CALEB
KGANAKGA
FIRST PLAINTIFF
MOYAHABO EDWIN
MAMETJA
SECOND PLAINTIFF
MATOME LAZARUS
MAMETJA
THIRD PLAINTIFF
And
THE MINISTER OF
POLICE
DEFENDANT
JUDGEMENT
[1]
At the beginning of the trial parties indicated that the onus now
rest with the defendant
to prove that the arrest of the plaintiffs
was justified and further that the defendant must lead its evidence
first upon which
the plaintiffs will reply. On that basis the
defendant led its case in justification of the plaintiffs’
arrest.
[2]
The allegations are that the plaintiffs were arrested on the 19
th
July 2015 at Mooketsi Filling station, by the Police Officers from
Modjadjiskloof SAPS. The plaintiffs alleges that the arrest
was
unlawful while on the other hand the defendant alleges that the
arrest was lawful and in term of Section 40(1)(b) of the Criminal
Procedure Act 51 of 1977 (“The CPA).
[3]
The plaintiffs were arrested and charged of robbery with aggravating
circumstances
and classified under schedule 6 offence.
[4]
The defendant’s version of the incident is briefly summarized
hereunder. Only
one witness was called by the defendant under the
name Warrant officer Malesela France Mashai who indicated that he was
in the
employ of the defendant at the time of the arrest, and he is
still employed by the same employer.
[5]
The officer alleges that on the 17
th
July 2015 they
received a complainant to the effect that there was an armed robbery
at Mooketsi Wholesalers at around 18hrs where
an amount of R145
000.00 and several other items including a firearm were taken from
the Wholesalers by the alleged robbers(Plaintiffs).
[6]
Upon interviewing some of the victims at the scene of the incident,
the police officers
were informed that some of the robbers had
visited the store earlier and attempted to exchange a cheque for cash
to the value of
R18 000.00 which the wholesaler did not exchange.
[7]
Warrant offer Mashai was alerted to the availability of the CCTV
Camera, wherein he
was able to identify a person whom he later
identify as the third plaintiff (Matome Lazarus Mametja).The warrant
officer also indicated
that he also received information from an
informer whose identity is unknown that the robbers were picked by a
Maroon Mitsubishi
Combi with a number plate only in the front. He was
also informed that the same robbers are planning to rob the Mooketsi
filling
station the following day which was the 18
th
July
2015.
[8]
The robbery did not happen on the 18
th
as per the
informer’s information. However, they were further informed
that the robbery will happen on the 19
th
July 2015. On
that basis the warrant officer and his colleague made sure that there
were enough resources at the garage to be able
to arrest the alleged
robbers. At around 17hrs on the 19
th
July 1015 at the
garage where the alleged crime is to happen, he observed a vehicle
matching the description as obtained from the
informer arriving at
the garage. There was only one person in the car being the driver who
alighted and went into the shop where
he was placed under arrest.
[9]
He was further informed about the reasons for his arrest and the
combi was left were
it was parked . The alleged driver of the Combi
was identified as the first plaintiff (Mamathuncha Caleb Kganakga).
The witness
further alleges that while waiting at the garage between
17h30 and 18h00 another vehicle entered the garage, and the occupants
approached the parked combi and peed inside it. It is at this point
that the Officer was able to identify one of the occupants of
the car
as the person identified on the CCTV footages.
[10]
He then approached both the second and third plaintiffs who were also
informed of their rights
and reason for their arrest after which they
were arrested.The witness further indicated that the first plaintiff
was arrested
on the basis that he matched the description of the
driver of the run-away vehicle and on the day and he was also driving
the same
vehicle which was identified by the informer. The third
plaintiff was arrested on the basis that he also matched the
description
of the person identified on the camera while the second
plaintiff was arrested on the basis that he was in the company of the
suspected
robbers.
[11]
The witness further indicated that based on their further
investigation, the second plaintiff
was released on the 20
th
July 2015 as there was no evidence linking him to the crime. However,
the first and the third plaintiffs were properly assessed
and
appeared in court on the 21
st
July 2015. They were further
detained by the court as they faced a schedule 6 offence and where
therefore supposed to make a formal
bail application.
[12]
The witness(Police Officer) further indicates that he was not called
to come and give evidence
during the bail hearing and he does not
know the reasons thereof. He further indicates that he was later also
transferred to another
Police station. This issue was also not put to
this witness by the defendant during cross examination.
[13]
It is on the above submissions that the defendant still insist that
their arrest was justified
in term of
Section 40(1)(b)
of the
Criminal Procedure Act 51 o
f 1977. The provision of this section will
be discussed later as both the plaintiff and defendant refer to the
same provision of
the Act.
[14]
During cross examination, the witness was asked if a statement was
ever taken from the alleged
informer. He indicated that, the
information was received from the informer and was used to
investigate the crime and do the arrest
and that the information of
the informer could not be provided to protect the identity of the
informer. The counsel for the plaintiffs
indicated that on the basis
that the identity of the informer was not disclosed it’s a
clear indication that there was no
such informer.
[15]
The witness indicated that despite the information obtained from the
informer, he also used the
information from the witnesses and the
CCTV on how the culprits looked like. The counsel wanted the witness
to explain on how they
looked like, and the witness indicated that
they are sitting inside the courtroom. The counsel insisted that
their identity be
explained to the court. I must indicate that I did
not see where this question was leading as the plaintiffs were
sitting inside
court as the witness was saying. The best the counsel
could have done was to ask the witness to identify them inside court.
[15]
The witness further indicates that after the arrest, his rights were
read to him, and he was
then put under arrest and was immediately
transported to the police station. The combi remained at the garage
as the officers also
remained. He indicated that the other two
plaintiffs came in a private car and went to check inside the combi
and that is when
they were also arrested.
[16]
The witness was also shown a copy of one of the plaintiffs who was
looking down and his face
not clearly visible, however, the officer
indicated that he was viewing the video and not the photo. In other
words, he did not
use the photo in question to identify the
plaintiff. He further indicated that in the photo the plaintiff has
already shifted his
face and that the photo is a photocopy copied
many times. I see no reason why a photo was used when the witness
indicates that
he has used the video.
[17]
The witness further indicates that, the arrest of the first plaintiff
took place around 17hrs
and the second and third plaintiffs arrest
took place between 17hrs30 and 18hrs. The witness denied the fact
that he is the one
who took the first plaintiff to the Police station
as he waited at the scene and arrested the other two suspects.
[18]
When confronted about the viewing of the video on the 19
th
for the second time, he corrected himself to say, he did not view the
video on the 19
th
but on the 20
th
and accept to
have made a mistake on the date. He further indicated that, he went
to the video to confirm what he has already saw
on the video the
other day. The witness further indicated that plaintiff number two
was released on the 20
th
which is the following day after
the investigations could not link him to the crime. He further
indicated that he could not release
him immediately as he was still
investigating.
[19]
The witness further indicated that, the plaintiffs were also taken on
identification parade,
and they were identified during parade by the
complainants namely, Mohamed Omar, Feroz Omar as well as a cashier by
the name Thembi
Makhumela. He further indicated that, the charges
against the plaintiffs are provisionally withdrawn and that they can
be reinstated
at any time as the investigation is still
ongoing.
[20]
After the close of the case for the defendant, the plaintiff made an
application for absolution
from the instance in which case they
wanted the court to confirm the application so they can proceed with
the matter unopposed.
After both parties have addressed the court,
the judgement was reserved for the following day. However, the court
was later informed
that the application was withdrawn and on that
basis the court did not continue to give judgement on the issue and
the matter was
therefore to proceed. The plaintiff then called its
first witness who is the first plaintiff.
[21]
The first plaintiff alleges that he used the Maroon Mitsubishi Combi
as a taxi and that on the
17
th
July 2015 he was hired to
transport a Brass Band to Maphalle Village. He further testified that
at the time the combi had not been
registered in his name despite
that he has bought it from the previous owner. He then went back
again on the 18
th
to fetch them. He indicates that he was
never at the scene of the accident even though, he passed the place
where the robbery occurred
while transporting the Brass band.
[22]
The plaintiff further alleges that, he was not told the reason for
his arrest at the time of
his arrest and further indicated that, they
refused to tell him the reasons thereof until he was told by another
officer after
having spent 4hours in the cells.
[23]
He further indicates that the Police informer might have seen his
vehicle passing the area on
the 17
th
, 18th and 19th July
2015. He alleges that they were mistreated in the cells in that they
were ordered to take off their shoes and
to make push-ups. He was
also sent to the shop to go and buy a cooldrink while inside the
cells where no such shop exists. Was
therefore made to run inside the
cells as if he was going to the shop.
[24]
Over and above, he was made to drink 5 liters of water and hit on the
ankle with boots. They
were provided with food which was not in good
condition and that they did not have blankets to sleep on as they
were only using
sheets. The food was mal-nutritional food and no food
in the evening.
[25]
The first plaintiff further alleges that they tried to make a bail
application which was denied
in that, Officer Mashai gave evidence in
opposition of the bail application. However, it is indicated that the
third plaintiff
was given bail in September 2015 after which he was
also given bail automatically. The first plaintiff further alleges
that he
was unlawfully arrested and feels that the justice system has
failed him and that he is now forgetful and continue to drink the
sleeping tables to be able to sleep.
[26]
He indicated that, the whole situation has a serious psychological
impact on his life in that,
the news around their arrest was on the
Mopane news. As a result, friends, neighbors as well as family no
longer trust them. As
a result, he is claiming R450 000.00 in damages
against the defendant
[27]
During cross examination, counsel for the defendant firstly asked the
witness regarding the new
evidence which was not put to the
defendant’s witness and the answer was that even though, he
could not hear everything,
it is not his duty to follow the
proceedings and he did not have to ask. When confronted with evidence
not put to the defendant
witness, he indicated that even if he did
not explain that to his counsel, but whatever he said did took place.
[28]
The witness was also asked about the guns which were held by the
Police officers and how they
were presented as well as the alleged
time(13hrs) which was not put to the state witness after having
indicated to the court as
to what time the Combi arrived at the
garage. Also, the fact that they were informed of the reason for the
arrest immediately.
The witness agreed with the counsel, however,
indicated that the fact that the questions were never put to the
state witness does
not means it’s not true.
[29]
Of importance again is when asked about his failure to deal with the
maroon combi upon which
he indicated that it was not his duty to deal
with the identity of this combi even after hearing the evidence of
the state witness
around the combi which he answered in the positive.
He however indicated that the state witness could not answer his
counsel questions
around the combi as he was dodging.
[30]
The witness further indicated that he did not know the plaintiff
number 2 and 3 which the counsel
again indicated that it only came
out during cross examination and not at anytime during the trial. The
issue around the torchers
in the cells were also not put to the state
witness to comment about that and the witness agree. No evidence was
also let disputing
the fact that the witness was earlier at the
wholesaler trying to change the cheque.
[31]
With respect to the identity of the Combi and being put at the scene
of the accident, the witness
indicated that the reason was that his
combi is an old model and different from other cars and not because
it was at the scene.
However, he confirmed that he was in the
vicinity of the crime scene on the day as he passed there
transporting the brass band
to the funeral. Again, the evidence
around the whereabouts of the combi on the 17
th
, 18
th
and 19
th
was also never put to the state witness.
[32]
When confronted during cross examination about the fact that the car
was sported at the scene
of the accident by witnesses, he indicated
that, his combi is unique, old and different model, that may be the
case they decided
to identify it as being the car at the scene of
crime. The witness further confirm that he was there at the scene of
crime as he
was passing to go and fetch the brass band at the
funeral.
[33]
The counsel for the defendant further indicated that the evidence of
the witness that, you were
seen on the video initially when going to
try and change the cheque on the same day of robbery is not
challenged. In re-examination,
he confirmed that the combi belongs to
him even though ownership had not changed and that it was changed
after sometimes.
[34]
Evidence of the second plaintiff is to the effect that on the 19
th
July 2015 they were from Davelskloof when they received a call from
his brother’s wife that she needed money to travel back
to
Johannesburg. They then decided to wait for her at Modjadjaikloof
filing station where they waited for 2 to 3 hrs. before she
could
arrive. On her arrival she called them upon which they drove to where
she was around the market area. After giving her the
money they drove
back to the garage as their vehicle was running low on fuel. They
were therefore arrested at the garage while
trying to fill fuel in
their car. He disputed the fact that at any stage they peered inside
the combi and further alleges that
the combi was not at the shop at
the time they were arrested. Again, the issue of the whereabout of
the combi was never put to
the state witness.
[35]
The plaintiff alleges that they were arrested between 14hrs and 15hrs
but only taken to the Police
cells around 17hrs to 18hrs. I must also
indicate that the issue of time was also never put to the witness
regarding what the defendant
has already alleged. He further
indicates that they were put inside the cells where the treatment was
very bad and was sent to
do the errands around the cells including
attending to things which did not exists.
[36]
The plaintiff further indicate that he met the first plaintiff for
the first time in the charge
office and they started talking. It is
at this time they realised; they were arrested for the same offence.
On arrival in the cells,
they were instructed to go clean the toilets
with their hands and asked to go buy matches even though the shops
were closed. When
ask questions he was assaulted on the basis that he
talked too much.
[37]
He further indicated that they were given food around 20hrs to 21hrs
and were given bread and
eggs. It is also important to again note
that the time they received food is different between the witnesses.
He also indicates
that other inmates took their food as well as
blankets as a result they slept on the floor. They also used cold
water to bath.
[38]
However, the witness alleges that he was released on the 20
th
July around 16hrs30 after the principal from the school he worked at
had came to the police station to interfere. The witness indicate
that the principal was able to come to school because when he was
given a phone to call, he called him instead of his family. He
further indicates that this was his first experience and that it
affected him psychologically that he was forced to take 08 days
leave
as he was not able to concentrate.
[39]
The witness further indicated that his family was worried about his
whereabout as they did not
know where he was. This experience
devastated him and could not concentrate at work and had sleepless
nights until his brother
was also released. He used sleeping tables
to get some sleep. Family wanted to know if he really committed crime
while on the other
hand, he had to face the rejection from members of
the community.
[40]
When asked where he was on Friday the 17
th
July, he
indicate that he was attending a funeral. I must again indicate that,
this is some of the issues never taken with the
defendant when being
cross examined by the plaintiff’s counsel. In closing the
plaintiff indicates that he is claiming an
amount of R450 000 for
loss of freedom for two days.
[41]
In cross examination, the plaintiff agrees that the fact of him being
paraded for 3hrs to members
of the public by the police officers as
criminals was never put to state witness. The plaintiff was further
confronted about his
statement which is contrary to what he is saying
in evidence before court. In his evidence he alleged that he was
arrested by other
officers who were driving an unmarked VP200 and
after they were arrested that is when warrant officer Mashai arrived
in a marked
vehicle. The witness failed to clarify this issue.
[42]
In trying to clarify the issue around the arrest by warrant officer
Mashai the witness now indicated
that they were not arrested for the
first 1hour and that they were only arrested after 1hour on Mashao
instructions after his arrival
on the scene. He further indicates
that there were no hand cuffs and the police used cables to tie their
hands. Further to this
again he now indicates that the combi was not
at the scene and that there were no cars. He could not explain this
as he indicated
earlier that there were cars at the garage but the
combi.
[43]
The plaintiff was further questioned around his communication with
the first plaintiff in the
charge office and further that does he not
see it strange that out of all the people in the charge office, he
chose to speak to
the first plaintiff who he alleges not to have
known him before and happened to be a co-accused in the same offence.
He indicates
that what attracted them together was the language they
were using.
[44]
When asked about his decision to call the school principal instead of
his family, he indicated
that the school was going to re-open the
following day and he wanted to alert the principal. However, he also
agrees that this
issue is only coming for the first time during cross
examination. The witness was also cross examined about his washing
the toilet
which the first witness did not testify on as they were on
the same area. The issue around the sleeping arrangements was also
raised
in that Mr Khanakga indicated that they slept on the sponge
and linen which is contrary to his evidence. He now indicate that Mr
Kganakga was testifying for himself and not for the witness. When
asked about the claimed amount and how he arrived at it he indicated
that he would leave that with his legal team.
[45]
Witness number 3 Mr Lazarus Mametja also testified in the case. He
confirmed that on the day
he had spoken to his wife to give her
transport money to travel back to Gauteng. They agreed to meet at
Moketsi Garage. They waited
for her at the garage and she did not
take time to arrive. When latter asked what time did she took before
arriving from the time
they arrived at the garage, He indicated 15 to
20min.( 2 to 3 hrs by the second plaintiff). He indicated that on his
wife’s
arrival he went to their car to give her money and then
went back to the car after which they went to the garage to fill fuel
in
the car. Note is also taken of the second plaintiff evidence that,
they drove to where his wife was and gave her money there before
driving back to the garage.
[46]
The plaintiff further indicates that, after they were searched and
found nothing, the Police
refused to give them the car keys and told
them to wait. They waited until the other police vehicle arrived and
that is when they
were arrested and left in the bakkie for about
2hours before being taken to SAPS Charge office. He further indicated
that they
were handcuffed by using the steel handcuffs. This is again
contrary to what the second witness testified on. When asked where he
was on the 17
th
, he indicated that he was at his sister’s
place waiting for his brother-in-law.
[47]
The witness further to indicates that on the day they were arrested,
they never slept as they
sing the whole night after they were told to
take off their shoes and clothes and only left with under wear. He
further indicated
that, at around 5am the following day, the boss in
the cell indicated that he needed their BBDs, Socks and T-shirts. He
further
indicates that the following morning he was taken to Cell 3.
When given food, the bosses took the meat, and they were left with
pap and soup only. Again, this is contrary to what the other two
witnesses testified on. He further indicated that they would be
awaken every day at around 2am to go take cold shower.
[48]
The plaintiff further indicated that while in the Police custody, he
got fever and he was shivering
when the magistrate ordered that he be
taken to hospital immediately. He was then diagnosed with stroke
because he was thinking
a lot and his eyes were always teary.
It was his first time to experience stroke and he is still not healed
to date.
[49]
He further testified that Warrant officer Mashao took them to the
identification parade when
they were pointed out by the witnesses. He
further testified that after the identity parade, they were taken to
court for bail
application when warrant officer Mashao refused them
with bail indicating that he is still investigating. He was only
granted a
bail of R10 000.00 on the 18
th
September 2015. He
further indicates that he stayed in Prison for 62 days after being
released on bail.
[50]
He indicated that he was heart broken by his stay in prison as this
was his first time. His sister
cried a lot because of this ordeal.
The family also did not take it well as they thought he did not
commit the crime. He lost all
his friends except his brother the
second Plaintiff. He confirmed that he claimed R1.8 million.
[51]
During cross examination the plaintiff indicated that, after arriving
at the garage, they waited
for about 20 to 30 minutes before his wife
arrived. He indicates that he denied the fact that they waited for
2hrs as indicated
by the second plaintiff. He further indicated that
after they were arrested by the two Police officers it took about
another 20
to 30min before officer Mashao could arrive at the scene.
(second plaintiff indicated about 1hr) he further indicated that
Officer
Mashao only came after they were thrown in the Police Bakkie
(first plaintiff, they were thrown in to the van after the arrival
of
officer Mashao)
[52]
He further denies the fact that, they were arrested after they peered
into the combi and indicated
that the combi was not at the garage.
When questioned about the unmarked Police vehicle, he conceded that
it might have been there
but he did not see it. He denied ever
entering the shop where the robbery happened in his life. When told
why was this never put
to officer Mashao when giving evidence, he
indicated that he is just trying to show that it was not him.
[53]
The witness again testified about the identity parade and indicated
that in the first round him
and the first plaintiff were pointed and
in the second round only him was pointed out. He further indicated
that he did not report
what was happening in the cell to the Police
or anyone and did not even open a case with the Police. It was also
put to the witness
that officer Mashao was never told about their
attending a funeral during his cross examination and that this issue
comes for the
first time, he replied that, he does not know why his
counsel did not ask him. He also confirmed that he started knowing
the first
plaintiff on the day of arrest in the charge office.
Analysis of the evidence
[54]
I have to indicate that, this is one of those cases where per the
arrangement of the parties,
the defendant has to lead the evidence
first to justify the arrest and detention of the plaintiffs. It is
very important in litigation
that when a party start and you must
respond to the case of the party who started the giving of evidence,
it is not just about
listening and writing notes. The opposing party
must make sure that, they meet the standard set by the party starting
in that they
must properly take notes and put their case to the
witness and allow the witness to commend on their client’s case
before
being called as a witness.
[55]
The difficulties which I find in this matter is that when one listen
to the evidence let by the
defendant and the one let by the
plaintiffs later, it feels like the plaintiff was not in court and
was not listening to the evidence
let by the defendant. In every case
the party starting to lead evidence normally set the pace for the
answering party. It is always
important for the other party to making
sure that his or her case is put to the opposing party. It becomes
difficult and impossible
for the court to consider the evidence which
was never put to the other party. The court is not able to determine
whether such
evidence is correct or not correct as the other party
was never given a chance to answer to such allegations. Now the big
question
is what the court should do or how should such evidence be
treated. This will become clear hereunder when the evidence let by
the
parties is being fully analyzed.
[56]
It is common cause that the plaintiffs were arrested by members of
the defendant on the 19
th
July 2015 for an armed robbery
which was committed on the 17
th
July 2015 at Mooketsi
Supermerket. The defendant indicated that they were informed by an
informer that the same people who committed
Robbery at mooketsi
Suppermarket are planning to do another robbery at the fillings
station in davelskloof on the 18
th
July 2015. When that
did not happen, they received another tip that it will now happen on
the 19
th
July 2015. Officer Mashao organized a group of
officers on both days to go and guard the filling station in
anticipation of the
arrival of the robbers.
[57]
On the 19
th
July 2015, the arrest was made for all the
plaintiffs in this matter at a filing station as per the information
from the informer.
As a result, all the plaintiffs spent some time in
prison for the crime as alleged. I must indicate that the crime did
not occur
as the police has arrested the plaintiffs in this matter
before the actual crime could occur on the 19
th
July 2015.
[58]
The counsel for the plaintiff emphasized that the fact that after the
plaintiffs were arrested,
the Police continued to do the
investigation is an indication that the arrest was unlawful in that
one can does not arrest and
then later do the investigation. He
indicated that the court should ignore any other or further
investigations and its findings
after the arrest. The question is
whether the police had enough information at the time to effect the
arrest.
[59]
What again was emphasized by the plaintiff was that the information
received from the informer
should be ignored on the basis that the
informer does not have an identity and as such police could not have
acted on the information
received from an unknown person. Wherefore
in the opinion of the plaintiff there was no reasonable suspension
for the police to
have effected the arrest.
[60]
It is also important to note that, the police acted on the
information which they received from
the informer and as a result,
they effected the arrest. It has not been put to the attention of the
Police officer that the information
received from the informer was
wrong but that the informer does not have an identity and the counsel
for the plaintiff tried to
find out if the Police knew the identity
of the informer and challenge the police acting on the information
from an unknown person.
[61]
The plaintiff has provided the court with reference to number of case
laws, however I have to
indicate that, what the plaintiff has
provided to the court is a mass of documents which the court is not
able to make up what
such documents are and their order. There is
about and over 200 pages not stabled and not paginated. The court is
not able to go
through all this documents to look for the referred
document by the plaintiff. It is the plaintiff’s duty when
providing
the court with papers of that volume to make sure they are
properly index and paginated. For that reason, the court is not able
to page over almost 200 unstapled and unpaginated if not more pages
for the plaintiff.
[62]
The plaintiff made reference to the case of De Klerk v Minister of
Police
[i]
in particular
reference to paragraph G thereof which state the following “
The
high court rules the arrest and subsequent detention to have been
lawful and dismissed the claim. In an appeal the Supreme Court
of
appeal unanimously ruled the arrest unlawful but was split on whether
the police minister could be held liable for the unlawful
detention
after the magistrate’s court appearance. The majority found
that an unlawfully arrested claimant could not hold
the police liable
for his continued detention after the magistrate’s court
appearance. The majority found that an unlawfully
arrested claimant
could not hold the police liable for his continued detention after a
magistrate had ordered a remand in custody”
[63]
Both the plaintiff and the defendant referred the court to Section
40(1)(b) of the criminal procedure
Act 51 of 1977 which makes the
following provisions “
A peace officer may without warrant
arrest any person (b) whom he reasonably suspects of having committed
an offence referred to
in Schedule 1, other than the offence of
escaping from lawful custody;”
[64]
Further to that the plaintiff submitted that for the purpose of this
case the court should also
ignore the results of the identification
parade where the accused were identified by the employees of the shop
which was robbed
as the people who robbed them. In other words, the
plaintiff alleges that the Police could not have arrested the
plaintiffs with
the information from the victims of crime and that
they should have investigated and satisfied themselves. The plaintiff
emphasized
that one can does not arrest in order to investigate.
[65]
It was further held that In
Duncan
v Minister of Law and Order
[ii]
the jurisdictional facts for lawful arrest under Section 40(1)(b)
are:
(i)
The arrestor must be a peace officer;
(ii)
The arrestor must entertain a suspicion;
(iii)
The suspicion must be that the suspect
committed an offence referred to in schedule 1;
(iv)
That the suspicion must rest on reasonable
grounds.
[66]
Reference was further made to the case of
Mabona
v Minister of Law and Order and Others
[iii]
“
Would
a reasonable man in the second defendant’s position and in
possession of the same information have considered that there
were
good and sufficient grounds for suspecting that the plaintiffs were
guilty of the conspiracy to commit robbery or possession
of stole
property knowing it to have been stolen? It seems to me that in
evaluating this information a reasonable man would bear
in mind that
the section authorizes drastic police action. It authorizes 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 analysis and assess the quality of information at his
disposal critically and will not accept it lightly without
checking
it where it can be checked. It is only after an examination of this
kind that he will allow himself to entertain the suspicion
which will
justify an arrest. This is not to say that the information at his
disposal must be sufficiently high quality and cogency
to engender in
him a conviction that the suspect is in fact guilty. The section
requires suspicion but not certainty. However,
the suspicion must be
based on solid grounds. Otherwise, it will be flighty or arbitrary
and not a reasonable suspicion”
[67]
The counsel for the plaintiff further indicated that no reasonable
man would have arrested based
on a photo where a person was looking
down and his face is not clearly visible. In this case the counsel
was referring to a photo
which was pointed to the witness where the
person in the photo was looking down. It is also worth mentioning
that at the time the
Police officer executed an arrest, they were not
in possession of the photos, however, he indicated that he used the
Video camera
to identify the plaintiffs. As such I am of the view
that this photo is irrelevant. The plaintiff further indicated the
fact that
the Police officer had to go to the cameras after the
arrest to satisfy themselves regarding the identity of the people
arrested.
He emphasizes that if you re-look it means you were not
sure and as such you should not have executed arrest.
[68]
I therefore do not agree with the submission by the plaintiff in this
regard. Reference is made
to the case referred to by the plaintiff
counsel “
Mabona” suprar
in that it set out clearly
what should be considered reasonable ground one can arrest or be
arrested. The police officer is not
supposed to be completely sure
that the arrested person indeed committed a crime there must just be
a reasonable suspicion. The
question which one must answer is whether
such suspicion was reasonable considering the merits of this case.
[69]
The defendant in closing argument indicated that the police officer
does not have to have all
the evidence before effecting an arrest and
that full information is not the test. Reference was again made to
Section 40(1)(b)
as indicated above, as well as the
Duncan case
supra.
The issue around the photo used during the hearing was
also challenged on the basis that the officers did not use the photo
but
the actual video. The defendant further indicated that, there is
no statement from the Informa as submitted by the plaintiff and
there
will not be same. What the court need to assess is to look at the
information given by him or her and then check if same
was proved. In
this case the information gave rise to the arrest of the plaintiffs
in this matter as per the information from the
Informa.
[70]
The counsel for the defendant further raised the point indicated
above regarding the use of evidence
which was never put to the
witness of the opponent in court. It was submitted by the defendant
that such evidence must be ignored
as it has not been tested.
Wherefore evidence not put to defendant witness evidence should be
ignored.
[71]
The arrest of the 2
nd
and third plaintiffs were on the
basis that on their arrival at the garage, they peered into the taxi
and the third plaintiff was
also recognized as the person from
the video at the shop where the robbery took place. The counsel for
the defendant further indicated
that, there was no evidence that they
were at the funeral on the day of the robbery as such was never put
to the defendant witnesses.
Issue around the time they waited at the
garage before the third plaintiff’s wife arrived at the filling
station as either
20min or 2hrs was also put on record.
[72]
Reference is made to the case of
Duncan
supra and Minister of Safety and Security v Sekhoto and another
[iv]
where the following was cited “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 to
exercise that power. No doubt the discretion must be properly
exercised. But the grounds on which the exercise of such discretion
can be questioned are narrowly circumscribed. 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”.
[73]
It is well established that, for the suspicion to be reasonable, the
circumstances giving rise
to the suspicion must be such as would
ordinarily move a reasonable man to form the suspicion that the
arrestee has committed a
schedule 1 offence.
R
v Van Heerden
[v]
.
In
Sekhoto
supra at paragraph 30 it was reiterated that, “
the
exercise of the discretion will clearly be unlawful if the arrestor
knowingly invokes the power to arrest for the purpose not
contemplated by the legislator”.
[74]
The counsel for the defendant further indicated that when the warrant
officer went back to view
the video at the shop, it was to confirm,
the person he has previously saw on the camera and he confirmed that
the same person
was appearing on the camera. This was clearly
indicated on paragraph 8 of the warrant officer Mashao statement.
[75]
The Counsel confirmed that the second plaintiff was arrested on the
basis that he was found with
the person they were looking for.
However, after the arrest, investigations were done urgently and he
was released within 48hrs
when nothing was found on him. The counsel
for the defended submitted that based on him being found with people
who were wanted
by the police, there were reasonable suspicion that
he was also involved in the crime and as such his arrest was
justified.
[76]
The defendant further referred the court to the case of
Minister
of Safety and Security v Seymour
[vi]
,
where the following was stated, “The
assessment
of general damages with reference to awards made in previous cases is
fraught with difficulty. The facts of a particular
case need to be
looked at as a whole and few cases are…comparable. They are
useful guide to what other courts have considered
to be appropriate,
but they have no higher value than that.”
[77]
What is important with the information from the Informa is whether
the Police arrested solely
based on the information from the Informa.
It is well known in the country and our practice that, there is a
free line where when
people suspect that a crime has been committed
or is about to be committed, they can call the police on anonymous
basis and inform
them of the allegation. It is not a requirement that
the identity of the Informa must be revealed for the evidence to be
accepted.
The question is whether, events occurred as the Informa
informed the police. In other words, the police must satisfy
themselves
of the information received from the Informa. The next
question will be whether the police solely used the information from
the
Informa without making their own investigations, it is very clear
that the police used the information received to do their own
investigation and to effect the arrest.
[78]
I am therefore of the view that the plaintiffs counsel, got it wrong
by indicating that on the
basis that the identity of the Informa is
not known, this court must then ignore all the information from such
Informa including
the decisions based on such information. The
Informa gave the police the information that the car with which the
robbers used to
rob the supermarket, and which will be used to rob
the filling station is a combi with only one registration in the
front. The
Informa was also aware of the movements of the plaintiffs
in this case in that the occurrence occurred as per the information
given
to the Police.
[79]
The question which this court should answer is whether the Police
with the information they had
from the Informa as well as from the
CCTV had a reasonable suspicion to arrest the plaintiff at the time.
Is there anything the
police still needed to do before effecting the
arrest of the plaintiffs. In considering the answer to the above
question we need
to be mindful that, the police should not be allowed
to use the powers to effect arrests where there is no need to arrest,
and
the police could do their proper investigation before arresting
simply because there may be no life at threat and or someone’s
freedom. In this case the Police were faced with an eminent situation
where an armed robbery was about to be committed as per the
information received. The officers where therefor in between and had
to decide as quickly as possible since people’s lives
might
have been in danger.
[80]
Upon their attendance at the filling station where the robbery was
alleged to have been arranged
to happen, they found the combi as
described by the Informa and latter there was someone who came
accompanied by another person
arrived at the garage and they
investigated the parked combi to check who are the people in the car.
On that basis an arrest was
affected. Also take note that the first
plaintiff was already arrested and taken to the charge office.
[81]
R v Van Heerden
1958 (3) SA 150(T)
152 and S v Reabow 2007(2) SACR
292 E at 297 C-E where it was indicated that “
it is well
established that in order for the suspicion to be reasonable, the
circumstances giving rise to the suspicion must be
such as would
ordinarily move a reasonable man to form a suspicion that the
arrestee has committed a schedule 1 offence”
. In the case
under discussion a crime has already been committed and the police
were provided with further information that another
crime like the
one committed the previous day was to be committed. Based on that
information police moved their resources which
resulted in the arrest
of plaintiffs in this case.
[82]
The next important question will be whether the police in arresting
the plaintiffs in this case
exercised their discretion and if so
whether it was exercised reasonably or not. This will also depend on
the information at their
disposal and the time of crime they were
about to experience and also try to arrest before people’s
lives could be at risk.
The question is not whether the people
arrested were subsequently found quilty of the crime they were
suspected of or not but whether
the police had reasonable suspicion
that a crime has been committed and or is about to be committed.
Should the arrested person
later found not to be quilty does not
automatically translate that the police were negligent in arresting
the suspect.
[83]
In the current case, a crime was committed, the police where informed
by an informa that the
same people who committed the crime the
previous day they are about to commit another crime, on the basis of
that the Police mobilized
their resources and that resulted in the
arrest of the plaintiffs with the exact information as provided for
by the Informa. It
is also important to note that, the identity of
the vehicle the plaintiffs were travelling in was explained by the
Informa before
the arrest. After the crime was committed, the
plaintiffs (1
st
and 3
rd
) were also identified
during the identity parade by the people who were at the shop on the
day of the robbery. What makes it worse
was the fact that the third
plaintiff was also identified on the video camera as one of the
person who was at the scene of the
accident. This is despite the
plaintiff alleging that he was never any where near the scene of
crime.
[84]
I am therefore of the view that the Police officers under the
circumstances should enjoy the
protection of Section 40(1)(b) of the
CPA and has proved the jurisdictional facts as indicated in the case
of
Duncan v Minister of Law and Order
supra. Wherefore I found
no ground upon which to fault the defendant in this case on the basis
that the Police abused their powers
and discretion at the time when
the plaintiffs were arrested, in particular the first and third
plaintiffs.
[85]
The plaintiffs were also found to contradicting themselves in more
than one occasion when giving
evidence with respect to their
experience on the day of arrest and what they were doing at or near
the scene of crime.
[86]
The plaintiffs indicated further that they continued to receive the
assault from members of the
SAPS and at this stage they did not know
the reason for the arrest. They were at times on Monday after the
arrest taken to another
place which they could only identify the
writing on the building as “Detective office”. It
is not clear from
the evidence of the plaintiffs as to what were they
doing at this area. However, they were returned to the Police
station.
[87]
if one has to deal with some of the contradicting evidence by the
plaintiffs which ia material
can be indicated in that the first
plaintiff indicated that on the day of arrest they slept on the floor
with no blankets while
the second plaintiff alleges that they slept
on the sponge and linen and the third plaintiff indicating that they
did not sleep
the entire night as they were made to sing the whole
night. The second plaintiff indicated that they were handcuffed with
cables
while the third plaintiff indicated that, the police hand
cuffs were used.
[88]
It is also important to note that, despite the plaintiffs indicating
that they were never
near the scene of the accident, they also
did not dispute the evidence of the witnesses that they were at the
supermarket on the
day of robbery and tried to exchange a cheque for
R18 000.00. Further to that, the first and the third plaintiffs where
also identified
at the identity parade by the victims of crime. The
counsel for the plaintiffs indicated that the court should ignore the
outcome
of this parade and am not sure based on what reasons.
[89]
The combi they were using was identified by the Informa. What is
again important and constituted
contradicting evidence was with
respect to the second and the third witnesses. The second witness
indicated that upon their arrival
at the garage, they waited for
about 2hours before the 3
rd
plaintiff’s wife could
arrive upon which they drove to where she was to give her some money.
While the third plaintiff indicated
that, they waited for about 15 to
20min before she arrived upon which he alighted from the car went to
give her money. After giving
her money he returned to the car and
they drove to the filling station.
[90]
I have also dealt with the evidence around their experience inside
the court upon their arrest.
It is very clear that the plaintiffs
where not telling the truth in that they can not experience three
different things if kept
in one cell, particularly the night they
were arrested. Wherefore in the following paragraphs I will deal with
judgement in respect
of each of them.
The
first plaintiff ( Mamathuncha Caleb Kganakga)
[91]
With respect to the first plaintiff Mamathuncha Caleb Kganakga I am
of the view that the Police
officers who arrested him had a
reasonable suspicion to arrest. The vehicle which he was driving was
positively identified by the
police Informa and the particulars
matched. It would have been reckless of the Police when they got
information that the crime
was committed and that a second crime is
about to be committed by the same offenders in another place for them
not to act accordingly.
[92]
The counsel for the plaintiffs made his reliance on the basis that
they were ultimately released
from prison in that charges against
them were withdrawn. I must indicate that, the fact that they were
later released is not the
test whether the police had reasonable
suspicion that a crime was committed and or is about to be committed.
With all the circumstances
and the evidence, the Police had at the
time of arrest, I am of the view that any reasonable Police officers
would have effected
an arrest. There is still no evidence before
court to convince the court that the arrest of the first plaintiff
was unjust and
it should not have happened.
[93]
It is also important to remember that the first plaintiff was also
identified during identity
pirate. The first plaintiff’s
counsel also did not deal with this issue but only made a submission
that the court should
disregard the outcome of the Identity parade. I
see no reason why such should be ignored if the test is whether the
police at the
time of arrest had reasonable suspicion to arrest the
plaintiffs.
[94]
Under the circumstances the Police officers with the information they
had, had reasonable suspicion
that a crime was about to be committed
by the first plaintiff and his friends and that they were the same
culprits who committed
armed robbery in the past two days. Wherefore
the first plaintiff fails to prove that the arrest was unlawful and
that there was
no reasonable suspicion that they had committed a
crime as such his claim against the defendant stand to be dismissed.
Second Plaintiff
(Moyahabo Edwin Mametja)
[95]
With respect to the second plaintiff, the State witness conceded
that, they made a mistake by
arresting him and that is the reason
that he was released the following day upon realizing that he did not
form part of the people
who committed armed robbery the previous day.
On that basis he was then released the following day after spending
some time in
prison. It is not clear the number of hours he spends in
Prison. However, the evidence before court is that he was arrested on
the 19
th
July 2020 at around 17hrs and was released the
following day around 16hrs30. Which confirms that he spends a little
under 24hrs.
[96]
Under the circumstances I am of the view that the defendant should be
liable to compensate the
second plaintiff for the time spend in
prison. To date it cannot be proved that the plaintiff received bad
and inhuman treatment
in the cell. There has been contradicting
evidence from the three plaintiffs as to the type of treatment and
the type of food they
were provided with in Prison. I am therefore
not satisfied that they were subjected to any inhuman treatment as
this court will
not be able to explain what treatment the plaintiffs
was exposed to.
[97]
In the matter of Tsele and Another v Minister of Police 2021 (8K6)
QOD 115 (NWM). “
The plaintiffs in this case were brothers
and the first plaintiff was arrested around 08:00 in the morning and
the second plaintiff
at around 14hours on the 29
th
November 2018 and both of them were released on the 3
rd
December 2018 around 10am after the case against them was withdrawn.
The condition of the cell they were kept was not good, they
had to
sleep on the floor sharing one blanket. Meals were served but the
food were not good which was mainly porridge and beans,
as well as,
tea and bread. They did not have toiletries and shared one face cloth
which they got from a fellow inmate. Upon release
the first plaintiff
was not treated well by the community because of the arrest. The
first plaintiff was detained for just over
four days while the second
plaintiff for less than 4days. Having regard to all the circumstances
of the case, the circumstances
under which the plaintiffs were
arrested, the humiliation experienced and the effect of the arrest
and subsequent unlawful detention
of the plaintiffs, as well as the
appalling circumstances in the cell over the weekend, the court
deemed that it would be fair,
reasonable, just and appropriate to
award damages in the amount of R15 000.00 per day, or part thereof as
the case may be”.
[98]
I see no reason why the same principle should not be applied with
respect to the second plaintiff
in this case. The second plaintiff
spent little less than a day in prison and under the circumstance’s
compensation in the
amount of R25 000 will by just under the
circumstances.
Third Plaintiff
(Matome Lazarus Mametja)
[99]
With respect to the third plaintiff, the witness for the state
indicated that, he was identified
on the camera as the person who was
in the shop at the time the crime was committed. Not only was the
third plaintiff identified
through the cameras, an identification
parade was held where the plaintiff was identified by more than one
victim of the armed
robbery. The plaintiff’s counsel used a
photo apparently taken from the camera of the shop robbed on the day
of robbery.
The counsel alleges that the person in the photo is
looking down and can not be identified as the third plaintiff.
However, the
Police officer indicated that he was using the video
camera to identify the culprits of robbery. It is not clear why
counsel decided
to use the evidence which was not used at the time of
arrest as an indication that the police had no reasonable suspicion
that
the third plaintiff had committed a crime.
[100] With
the above submission and the evidence led during the trial, the third
plaintiff fails to convince the court
that there was no reasonable
suspicion upon which the police could have effected the arrest. On
that basis, I am of the view that
the third plaintiff’s claim
should be dismissed.
[101] In the
circumstances the court makes the following order
(1)
The first plaintiff’s claim against the defendant is dismissed
with no order as to
costs.
(2)
The second plaintiff is awarded an amount of R25 000.00 as
compensation.
(3)
The third plaintiff’s claim against the defendant is dismissed
with no order as to
costs.
(4)
The defendant is to pay the second plaintiff’s costs on scale B
of the costs.
Acting
Judge T C Maphelela
JUDGE
OF THE HIGH COURT,
POLOKWANE; LIMPOPO
DIVISION
APPEARANCES
FOR THE PLAINTIFF
: Adv Maree
INSTRUCTED BY
: T N Sebelebele Attorneys
FOR THE DEFENDANT: Adv
L A Nkoana
INSTRUCTED
BY :
State Attorneys
DATE OF HEARING
: 25 March 2024
DATE OF JUDGEMENT: 07
June 2024
[i]
2021
(4) SA 585
[ii]
1986
(2) SA 805
(A) at 818 G-H
[iii]
1988
(2) SA 654
(SE) E-H the test is an objective one
[iv]
2011
(1) SACR 315
(SCA) at 6 and 28
[v]
1958
(3)SA 150 (T)152 and S v Reabow
2007 (2) SACR 292
E at 297 C-E
[vi]
2007
(1) ALL SA 558
(SCA) at paragraph 17