About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Makhanda
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Makhanda
>>
2024
>>
[2024] ZAECMKHC 74
|
|
Twebe v Minister of Safety and Security and Others (CA68-2023) [2024] ZAECMKHC 74 (25 June 2024)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE
DIVISION, MAKHANDA)
Case no: CA68/2023
In the matter between:
NKULULEKO
TWEBE
Appellant
and
MINISTER
OF SAFETY AND SECURITY
1
st
Respondent
SERGEANT
MZUBANZI NDONGENI
2
nd
Respondent
CONSTABLE
SIMPHIWE JAKAVULA
3
rd
Respondent
APPEAL JUDGMENT
GQAMANA J
[1] This appeal is
directed against the dismissal, with costs, of the appellant’s
claims for damages against the respondents
by the magistrate of King
William’s Town. The undisputed evidence is that on 28 June 2016
at night, the appellant was arrested
by the police on charges of
possession of dagga and mandrax. He appeared in court the following
morning and was released on bail.
The charges against him were
withdrawn on 30 September 2016, by the prosecutor. Subsequent
thereto, he instituted an action against
the respondents for unlawful
arrest and detention and for assault. Merits and quantum were
separated, and the trial proceeded for
determination of liability
only. At the end of the trial, the magistrate issued the judgment
which is the subject of this appeal.
[2] The nub of this
appeal is that, the magistrate misdirected herself in finding that
the arrest and detention were lawful
and that, the appellant failed
to prove his claim for assault. It was submitted on behalf of the
appellant that, on the face of
an invalid search warrant, the
magistrate misdirected herself that the arresting officer had
entertained a reasonable suspicion
that the appellant committed an
offence. In respect of the claim for assault, it was submitted that
the magistrate misdirected
herself in dismissing the claim
considering the overwhelming evidence by the appellant, his witnesses
and the medical records from
Grey hospital which showed that he had
difficulties in walking and had sustained visible injuries in his
arms and knees.
[3] It was common
cause that the appellant was arrested on 26 June 2016 on charges of
possession of dagga and mandrax.
The respondents’ defence
was that the arrest and detention was justified in terms of the
provisions of section 40 (1)(a),
(b) and (h) of the Criminal
Procedure Act, 51 of 1977 (“the CPA”). The above
provisions empower a peace officer
to arrest without warrant any
person who commits or attempts to commit an offence in his presence
or, whom he reasonably suspects
of having committed an offence
referred to in schedule 1 (other than escaping) or, who is reasonably
suspected of committing or
having committed an offence under any law
governing the making, supply, possession or conveyance of
dependence-producing drugs.
In respect of the assault claim,
the respondents denied that the appellant was assaulted and that, the
injuries he sustained were
as a result of assault. Its defence was
that the injuries sustained by the appellant were self-inflicted and
that he resisted the
arrest and reasonable force had to be used to
effect the arrest.
[4] The appellant
was arrested without a warrant, as such the onus was upon the
respondents
to
provide legal justification for the arrest.
[1]
The
respondents placed reliance,
inter
alia,
on
section 40 (1)(a), (b) and (h) of the CPA.
[5] The
jurisdictional facts necessary for an arrest under section 40 (1) (a)
are the following: (a)the arrestor must be a
peace officer; (b) an
offence must have been committed or there must have been an attempt
to commit an offence and (c) the offence
or attempted offence must be
committed in his or her presence.
[6]
However, for section 40 (1)(b) defence the necessary jurisdictional
facts are that: the arrestor must be a peace officer,
the arrestor
must entertain a suspicion, the suspicion must be that the arrestee
committed a schedule 1 offence
[2]
(other
than escaping) and the suspicion must rest on reasonable grounds.
[3]
And
for purposes of section 40 (1)(h), the reasonable suspicion must be
that the arrestee committed an offence under any law governing
the
making, supply, possession of dependence -producing drugs.
[7]
Once the jurisdictional facts are present, a discretion arises
whether to arrest or not. The police are not obliged to
effect the
arrest.
[4]
The
exercise of the discretion by the arresting officer was not attacked,
so it was not an issue upon which the trial court had
to decide.
[8]
It was not in dispute that the arresting officer was a peace officer
as defined in section 1 of the CPA. The unlawfulness
of the
appellant’s arrest was pinned to the second requirement under
section 40 (1)(b) that, the arresting officer did not
entertain
reasonable suspicion. The test on reasonable suspicion was succinctly
summarised in
Mabona
vMinister of Law and Order
[5]
that,
the section requires suspicion, not certainty. Such suspicion must be
based on solid grounds. Otherwise, it is flighty or
arbitrary and not
reasonable. There must be evidence that the arresting officer formed
a suspicion which is objectively sustainable.
[9] To discharge
the onus the respondents led the following evidence. That on the
night in question the second and third respondents
were requested by
members of Central Intelligence Group (CIG) for assistance to search
the appellant’s shack. The CIG are
undercover police agents.
The second and third respondents were briefed by the members of the
CIG and were informed that the appellant
was suspected to be in
possession of drugs and an illegal firearm. Further the second and
third respondents were informed that
the CIG had received reliable
information from a protected informer that the appellant was in
possession of drugs and an illegal
firearm. The respondents
were also provided with a search warrant, authorising to search the
appellant and his shack. The
first and second respondents, together
with the CIG members proceeded to the appellant’s shack to
execute the search warrant.
[10] Upon arrival
at the appellant’s shack, the police knocked at the door and
identified themselves, but were met with
deaf silence. Upon forced
entrance, they found three African males, and they searched them but
found nothing in their possession.
The two aforementioned
policemen proceeded to search the shack and found the appellant
hiding under a sponge mattress. As they
approached the appellant, he
gashed out and fled and in that process he injured himself. The CIG
members chased and apprehended
him on the street. The CIG members
called for assistance and the second respondent went outside to
assist them. The second respondent
searched the appellant and found a
plastic with mandrax in his pocket. After few minutes the police came
inside the shack with
the appellant, and they showed him a search
warrant. They searched his shack and found dagga. He was arrested and
charged for possession
of dagga an mandrax.
[11] Insofar as the
claim for assault is concerned, the police testified that the
appellant njured himself as he gashed out
of his shack fleeing.
Further he resisted the arrest and reasonable force had to be used to
effect the arrest. The appellant was
handcuffed and placed at the
back of the police van and taken to the police station. At the police
station he complained of body
pains (on his shoulder and head) and
was taken to Dimbaza clinic. From there he was detained at the police
station until he appeared
in court the next morning.
[12] The appellant
testified for his case and also called his two sisters as his
witnesses. His evidence was that he was inside
his shack alone
playing music, suddenly he had a bang sounding like a corrugated zinc
falling. Before that, he did not hear any
knock on the door. As he
was still looking, he saw men standing next to him. Those men did not
introduce themselves as police.
He was handcuffed and arrested inside
his shack for unknown reason. He was also assaulted, he was pulled
outside by unknown men
who were not in police uniform and was dragged
by his dreadlocks on the tarmac outside. As a result, he sustained
serious injuries.
He was arrested and taken to the police van. He
denied that he was showed a search warrant. He also denied that
mandrax were found
in his possession. However, he admitted that dagga
was found in his shack but, proffered an excuse that he was using it
for religious
purposes. He testified that the police decided to lay
false charges against him.
[13] His two
sisters also testified, and both gave evidence on how they observed
the appellant in pain the following morning
after he was released
from custody. They testified that the appellant could not ambulate to
the extent that they had to use a wheelchair
at the hospital. Further
their evidence was that he was even unable to urinate, his face was
swollen, his tooth was broken and
had bruises. At Grey
hospital, he was examined by the doctor, and it was found that he was
injured on his arms and knees.
[14]
At the conclusion of the trial, the magistrate dismissed with costs
both claims. In her judgment she found that the search
warrant was
invalid and mentioned that the appellant’s claim was not
premised on the validity of the search warrant, but
rather on the
unlawfulness of the arrest and detention. I must pause and mention
that the requirements for a valid search warrant
are authoritatively
set out by the Constitutional Court
[6]
as
follows:
‘
[55].
A valid warrant is one that, in a reasonably intelligible manner:
(a)
states the statutory provision in terms of which it is issued;
(b)
identifies the searcher;
(c)
clearly mentions the authority it confers upon the searcher;
(d)
identifies the person, the container or premises to be searched;
(e)
described the article to be searched for or seized, with sufficient
particularity; and
(f)
specifies the offence which triggered the criminal investigation and
names the suspected offender.”
[15]
The appellant takes issue with the magistrate’s findings that
his claim was not premised on the validity
of the search warrant.
Counsel for the appellant submitted to us that, the unlawful arrest
and detention claim was based
on the fact that the police members
intentionally and maliciously came to the appelllant’s house at
night and in contravention
of the search warrant which was in their
possession and entered his house while sleeping. In advancing that
argument, counsel submitted
that the unlawfulness of the police
actions was to enter the appellant’s house without
authorisation at night in contrast
to the search warrant. The
argument was that the appellant’s claim is that, “
if
not for the unlawful conduct of the SAPS in terms of the search
warrant, they would not have attended upon his house at night
and
cause to arrest him.
”
[16] This argument
is artificially impressive, but it is not borne out of the facts and
the case pleaded in the particulars
of claim. The appellant’s
case as pleaded was that:
“
10.
The Second and third Defendants’ conduct together with that of
other members who were with them was wrongful, unlawful
and malicious
in that they broke open the Plaintiff’s door and arrested the
Plaintiff without a warrant of arrest and they
had no reason or
probable cause for suspecting that the Plaintiff had committed any
offence and acted with the intention to injure
the Plaintiff’s
dignity.”
[17] In answer to
the above, the respondents pleaded that:
“
10.
The defendants deny the allegations contained in this paragraph and
in amplification of such denial the defendants aver
that:
10.1. The defendants,
particularly the second and third defendants are peace officers
entitled under section 40 of the Criminal
Procedure Act 51 of 1977
(the CPA) to effect an arrest of the plaintiff without a warrant, on
the grounds that a peace officer
may arrest any person, inter alia:
10.1.1 grants a peace
officer to arrest a person without a warrant who commits or attempts
to commit a crime in his presence (section
40 (1) (a)) and whom he
reasonably suspects of having committed an offence referred to in
Schedule 1 (sec. 40(1)(b));
10.1.2 the arrest of the
plaintiff was in terms of section 40(1) (a) and section 40 (1)(b);
10.1.3 the second and
third defendants were in addition to harbouring a reasonable
suspicion provided with a search warrant, as
issued in terms of
section 21 of the CPA by a commissioned police officer, who is a
justice of peace under the provisions of the
Justices of the Peace
and Commissions of Oaths Act 16 of 1963……”
[18] Further at the
commencement of trial, the respondents moved for an amendment to
incorporate section 40 (1)(h) as an additional
defence against the
appellant’s claim for unlawful arrest and detention. Such
amendment was unopposed by the appellant and
the magistrate granted
it.
[19]
It is clear from the pleadings and the evidence that, the appellant’s
cause of action was not premised on the lawfulness
of the search
warrant, but it was a claim based on unlawful arrest and detention.
In any event it would not be in accordance with
the principle set out
in
Minister
of Police v Foutie and Another
[7]
to
hold the respondents liable for damages based on a claim for unlawful
arrest and detention simply because of a finding that the
search
warrant was invalid.
[20] In respect of
the unlawful arrest and detention claim the magistrate assessed all
the
circumstances preceding
the appellant’s arrest.
[21] It is evident
from the record with regard to both the reasons for the arrest and
the injuries sustained by the appellant
that, there were two
irreconcilable versions. In resolving such factual issues, the
magistrate evaluated the evidence, considered
the probabilities and
on an overall assessment of the evidence concluded that the
respondents’ evidence was to be preferred.
[22]
It is trite that the appeal court would be slow to interfere with
factual findings by a trial court based on careful
assessment of the
credibility of witnesses and the probabilities of their respective
versions.
[8]
Regard
being had to the totality of the evidence, the respondents’
version as to the reason for the appellant’s arrest
is the more
probable one. As indicated above, the evidence of the two policemen
was that, they were briefed by the CIG members
that they had received
reliable information from a protected informer that the appellant was
in possession of drugs and an illegal
firearm. In addition, the
second and third respondents were provided with a search warrant
authorising that the appellant and his
shack be searched. They were
fully briefed on the investigation against the appellant. Upon
arrival at the appellant’s shack,
they knocked from the door
and announced themselves as police. The appellant did not open the
door. Upon forced entry they found
the appellant hiding. As they
approached him, he gashed out and fled. When the CIG members
apprehended him outside, the second
respondent searched him and found
a plastic of mandrax in his pocket. Inside his shack the police also
found dagga. With all this
evidence there is no room to criticise the
factual findings by the magistrate.
[23]
Ms Burger, counsel for the appellant argued that the police did not
entertain a reasonable suspicion that a schedule
1 offence was
committed. The general item on the definition of schedule 1 offences
include, any offence which a sentence of six
months or more may be
imposed without an option of fine. Possession of mandrax and
possession of dagga falls within that definition.
Further the
argument advanced on behalf of the appellant lost sight that the
respondents also placed reliance on section 40 (1)(h)
as one of the
legal justifications for the arrest. That section empowers the police
to arrest any person who is reasonably suspected
of committing or of
having committed an offence under any law governing,
inter
alia
,
possession of dependence-producing drugs. Possession of mandrax is an
offence in terms of the
Drugs and Drug Trafficking Act 140 of 1992
.
Possession of dagga too is prohibited by section 4 (b) of the Drugs
Act subject to the exception set out in
Minister
of Justice and Constitutional Development and others v Prince and
others
[9]
.
At
the time of the appellant’s arrest possession of dagga was
completely prohibited.
[24] Ms Burger also
argued that the magistrate erred in her findings that the police
acted on reasonable suspicion. The argument
was that because the
search warrant was invalid, there was no objective basis for the
police to enter and search the appellant’s
home and invade his
right to privacy. In a case such as this one, a balance needs to be
found between the protection of liberty
and right to privacy on one
hand and the avoidance of unnecessary restrictions on the police in
the execution of their duties.
The evidence shows that the police had
reliable information that the appellant was in possession of drugs
and an illegal firearm,
acting on that information and armed with a
search warrant, the police visited the appellant’s shack. On
their arrival at
his shack, they knocked on the door and introduced
themselves as police. The appellant did not open even though he was
inside his
shack. The police could hear and observe that there were
people inside. Upon forced entry, the police found three unknown
males
and on continuation of their search, the same police found the
appellant hiding. When the police approached him, he fled. These
two
policemen were in full uniform. When he fled that strengthen the
police’s suspicion. As he fled, he injured himself.
When the
CIG members chased and apprehended him, he resisted. Upon being
searched mandrax were found in his possession. On further
search
dagga was found inside his shack. Considering all these objective
facts the magistrate was correct in her findings that
the respondents
met all the jurisdictional facts set out in section 40 (1)(b) of the
CPA.
[25] Insofar as the
claim for the assault, the onus was upon the appellant to prove it.
The magistrate accepted that there
were two mutually destructive
versions and she approached same in the similar manner as indicated
above. Based on probabilities
she found the appellant and his
witnesses to be unreliable. The magistrate considered the
respondents’ version to be the
more probable one. It was
the respondents’ evidence that the appellant resisted the
arrest and reasonable force had
to be used to effect the arrest as
sanctioned in section 49(2) of the CPA. Ms Burger was constrained to
concede that there was
no agreement reached between the parties
regarding the status of the medical records. There was no evidence to
support the appellant’s
claim that the injuries as reflected in
the J88 were consistent with his allegations or, that such injuries
were inconsistent to
the respondents’ version. The onus
was upon the appellant to prove his claim and in the circumstances, I
agree with
the magistrate that the appellant failed to discharge such
onus.
[26] For all the
above reasons the appeal ought to fail. There are no reasons why the
costs should not follow the results.
[26] In the result,
the appeal is dismissed with costs.
N GQAMANA
JUDGE OF THE HIGH
COURT
I agree
B HARTLE
JUDGE OF THE HIGH
COURT
APPEARANCES:
Counsel for the
Appellant:
Adv L Burger
Instructed
by
Messrs Luvuyo Solvern Attorneys
East
London.
Counsel for the
Respondent:
Adv L van Vuuren
Instructed
by:
State Attorney
East
London.
Date heard
on:
7 June 2024
Delivered
on:
25 June 2024
[1]
Zealand
v Minister of Justice and Constitutional Development and Another
2008 (2) SACR 1 (CC), 2008 (4) SA 458, 2008 (6) BCLR
601 (CC).
[2]
The
general item in schedule 1, namely, an offence for which
imprisonment exceeding six months without an option of a fine may
be
imposed applies to statutory offences only, not to common law
offence. See Areff v Minister van Polisie 1977(2) SA 900(A).
[3]
Duncan
v Minister of Law and Order
1986 (2) SA 805
(A) at 818G-H.
[4]
Minster
of Safety and Security v Sekhoto
2011 (1) SACR 315(SCA)
para [28].
[5]
1988
(2) SA 654
(SE) at 658H.
[6]
In
Minister
of Safety and Security v Van der Merwe and Others
2011 (5) SA 61
(CC) para [55].
[7]
(CA
59/2020) [2021] ZAECGHC 26 (9 March 2021) para [36].
[8]
S
v Monyane
2008 (1) SACR 543
(SCA) para [15].
See
also R v Dhlumayo
1948 (2) SA 677
(A) at 706.
[9]
2018
(6) SA 393
(CC). This judgment was delivered after the
appellant’s arrest.