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[2024] ZAFSHC 239
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Mokoena v Minister of Police and Another - Appeal (A136/2023) [2024] ZAFSHC 239 (8 August 2024)
IN THE HIGH COURT
OF SOUTH AFRICA,
FREE STATE
DIVISION, BLOEMFONTEIN
Appeal
Case Number: A136/2023
Court
a quo
Case
Number: 1582/2019
In
the matter between:
MPHO
DOCTOR MOKOENA
APPELLANT
and
THE
MINISTER OF POLICE
1
ST
RESPONDENT
THE
NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS
2
ND
RESPONDENT
CORAM
:
CJ MUSI, JP
et
MOLI
T
SOANE
J,
et
GROENEWALD,
AJ
HEARD
ON
:
26 APRIL 2024
DELIVERED
ON
: 08 AUGUST 2024
JUDGMENT
BY
:
GROENEWALD, AJ
INTRODUCTION
:
[1]
This is an appeal against an order of a single Judge of this
Division. The appeal is before
us with leave of the court
a
quo
.
[2]
The appellant instituted action proceedings
in the court
a quo
against the first and second respondents
based on unlawful arrest and detention as well as malicious
prosecution.
[3]
The appellant was arrested by members of the SAPS on 18 May 2017.
[4]
On 19 May 2017 the appellant appeared in the District Court,
Frankfort where his bail application
was opposed by the State.
The matter was postponed twice and on 30 May 2017 the appellant’s
bail application was refused.
The appellant remained in custody until
he was eventually acquitted on 5 September 2018.
THE
UNLAWFUL ARREST AND DETENTION:
[5]
In a claim for unlawful arrest and detention a plaintiff must inter
alia
prove
that the deprivation of his or her liberty was wrongful.
[1]
[6]
Any arrest or detention is
prima
facie
wrongful
and the onus rests on a defendant to justify the arrest and
detention.
[2]
[7]
It is common cause that the appellant was arrested without a warrant
of arrest.
[8]
In terms of section 40(1)(b) of the Criminal Procedure Act 51 of 1977
(
the CPA
) a peace officer may without a warrant arrest any
person whom he or she reasonably suspects of having committed an
offence referred
to in Schedule 1, other than the offence of escaping
from lawful custody.
[9]
In Minister of Safety and Security v Sekhoto
[3]
the court held that the following jurisdictional facts must be
present in terms of section 40(1)(
b
)
of the CPA:
[9.1]
The arrestor must be a peace officer;
[9.2]
The arrestor must entertain a suspicion;
[9.3]
The suspicion must be that the suspect (the arrestee) committed an
offence referred to in Schedule 1;
[9.4]
The suspicion must rest on reasonable grounds.
[10]
The Court
a quo
held that the appellant was lawfully arrested
in terms of section 40(1)(b) of the CPA.
[11]
It is common cause that the arresting officer in this matter is a
“
peace officer”
as envisaged in section 40(1)(b)
of the CPA. The appellant however disputes that the arresting
officer entertained a reasonable
suspicion that the appellant
committed an offence referred to in Schedule 1 of the CPA when he
effected the arrest of the appellant.
[12]
According to the appellant, rape of a minor child is not an offence
referred to in Schedule 1 of the CPA and
the arresting officer therefore did not have the authority to arrest
the appellant
without a warrant in terms of
in section
40(1)(b) of the CPA
.
[13]
The offences referred to in Schedule 1 of the CPA include the
following:
“
Rape or
compelled rape as contemplated in
sections 3
and
4
of the
Criminal Law (Sexual Offences and Related Matters) Amendment
Act, 2007
, respectively.”
(Emphasis added).
[14]
Section 3 of the Criminal Law (Sexual Offences and Related Matters)
Amendment Act 32 of 2007 (
Act 32 of 2007
) deals with “
rape
”
and provides the following:
“
Any person
(‘A’) who unlawfully and intentionally commits an act of
sexual penetration with a complainant (‘B’),
without the
consent of B, is guilty of the offence of rape.”
[15]
Section 4 of Act 32 of 2007 deals with “
compelled rape
”
and is not applicable in this matter.
[16]
From the charge sheet it is evident that the appellant was charged
with rape in terms of
section 3
of Act 32 of 2007.
[17]
[17.1] In
order to substantiate his submission, that the appellant was not
charged with an offence
referred to in Schedule
1 of the CPA,
the appellant referred to the following offence
also referred to
in Schedule
1:
“
Any sexual
offence against a child or a person who is mentally disabled as
contemplated in Part 2 of
Chapter 3
or
the whole
Chapter 4
of the
Criminal Law (Sexual
Offences and Related Matters) Amendment Act, 2007
, respectively”
.
(Emphasis added)
[17.2]
According to the appellant the offence that he was charged with does
not fall under Chapters 3 or 4 of Act 32
of 2007 and is therefore not
an offence
referred to in Schedule 1.
[17.3
The appellant’s argument is however misplaced as he was charged
in terms of
section 3
of Act 32 of 2007, and not
Chapter 3
or 4
of Act 32 of 2007.
[17.4]
Because the appellant was charged with rape in terms of section 3 of
Act 32 of 2007 he was actually charged with
an offence referred to
in
Schedule 1, as envisaged in section 40(1)(b) of the CPA.
[18]
The question whether a peace officer reasonably suspects a person of
having committed an offence within the
ambit of section 40(1)(b) of
the CPA is objectively justiciable.
[4]
[19]
In
Biyela
v Minister of Police
[5]
the court held the following:
“
[34]
The standard of reasonable suspicion is very low. The reasonable
suspicion must be more than a hunch;
it should not be an
unparticularised suspicion. It must be based on specific and
articulable facts or information.
Whether the suspicion was
reasonable, under the prevailing circumstances, is determined
objectively.
[35]
What is required is that the arresting officer must form a reasonable
suspicion that a Schedule
1 offence has been committed based on
credible and trustworthy information. Whether that information
would later, in a court
of law, be found to be inadmissible is
neither here nor there for the determination of whether the arresting
officer at the time
of the arrest harboured a reasonable suspicion
that arrested person committed a Schedule 1 offence.”
[20]
Once the jurisdictional facts for an arrest in terms of section
40(1)(b) of the CPA are present a discretion
whether or not to arrest
arises. The peace officer is not obliged to arrest.
[6]
The
discretion to arrest must be exercised properly.
[7]
[21]
In Groves NO v Minister of Police
[8]
the Constitutional Court held that an arresting officer
has
to collate facts and exercise his discretion on those facts. The
arresting officer must be able to justify the exercising of
his
discretion on those facts.
[22]
Sergeant Nakane was the arresting and investigating officer in this
matter. At the time of the arrest Sergeant
Nakane had the statement
of the complainant in his possession. The statement was taken from
the complainant by another police official.
The appellant is related
to the complainant and they were staying in the same dwelling at the
time of the incident. In her statement
the complainant identified the
appellant as the person who raped her and stated that she recognized
his voice. According to the
complainant the appellant penetrated her
anus with his penis.
[24]
In her statement the complainant further indicated that, when she
woke up the morning after the alleged incident,
she confronted the
appellant and asked him why he did that to her. The appellant then
told her not to ask him that question.
According to the
complainant she told the appellant that she was going to tell her
father about the incident but the appellant
then said that her father
would not do anything to him. The complainant further stated
that
the appellant raped her again and
also threatened that he would hit her if she told her parents.
[25]
Sergeant Nakane had an interview with the complainant on 15 May 2017
before he arrested the appellant. According
to Sergeant Nakane he had
to cut the interview short because the complainant became very
emotional and started crying. Although
the victim did not mention
during the interview that she was raped she did say that she was
touched by the appellant.
[26]
In the J88-report by a medical practitioner, Dr GJ Gronum, dated 3
May 2017 it was confirmed that the complainant
had tears in her anus
and was sodomized. In my view the J88 corroborates the version
of the accused.
[27]
Sergeant Nakane also interviewed the aunt of the complainant before
he arrested the appellant.
[28]
The complainant laid the charge against the appellant with the SAPS
on 2 May 2017.
[9]
The appellant
learned about the complainant’s charge against him on the same
day that the charge was laid.
[10]
The appellant was living in Tweeling at the time.
[11]
That same day the appellant left Tweeling and went to Ermelo.
[12]
The appellant remained in Ermelo until the time of his arrest on
18
May 2017. Despite having knowledge about the charge against him the
appellant failed to present himself to the police.
[30]
Having considered all the relevant facts of this matter I am not
persuaded that Sergeant Nakane exercised
his discretion to arrest the
appellant in an improper manner.
[31]
I am therefore of the view that the appellant was lawfully arrested
in accordance with the provisions of
section 40(1)(b) of the CPA. The
appellant therefore failed to prove that the deprivation of his
liberty was wrongful and his claim
for unlawful arrest and detention
was correctly refused by the court
a quo
.
MALICIOUS
PROSECUTION:
[32]
In order to succeed with a claim for malicious prosecution a
plaintiff must allege and prove the following:
[32.1] That the
defendants set the law in motion – they instigated or
instituted the proceedings;
[32.2]
The defendants acted without reasonable and probable cause;
[32.3] The
defendants acted with “
malice”
or
animo
iniuriandi
– that is, with the intention to injure the
plaintiff; and
[32.4]
The prosecution failed.
[13]
[33]
Ms De Beer was the prosecutor in the criminal trial of the
appellant. According to her she carefully
considered the
content of the docket and was subsequently satisfied that there was a
prima facie
case against the appellant. She therefore took the
decision to proceed with the prosecution of the appellant.
[34]
[34.1] The
appellant was not discharged at the close of the case for the
prosecution, in terms of section 174 of the CPA,
during the criminal
trial.
[34.2] Section 174
of the CPA provides that if, at the close of the case for the
prosecution, the court is of the opinion
that there is no evidence
that the accused committed the offence referred to in the charge or
any offence of which it may be convicted
on the charge, it may return
a verdict of not guilty.
[34.3]
The fact that the appellant was not discharged in terms of section
174 of the CPA, at the close of the case for the
prosecution in the
criminal trial, in my view
demonstrates
that there was at least a
prima facie
case against the appellant.
[35]
I am therefore of the view that the appellant failed to
prove
that
the respondents acted without reasonable and probable cause and with
malice. The court
a quo
therefore correctly dismissed the appellant’s claim for
malicious
prosecution.
COSTS:
[36]
A successful litigant is generally entitled to his or her costs.
[14]
I am unable to find any reason why the general principle should not
be applied in this matter. Costs should therefore follow
the result.
[37]
In my view this matter was not very complex and the costs consequent
upon the employment of counsel should
therefore be awarded on Scale
A.
[38]
Accordingly I make the following order:
[38.1]
The appeal is dismissed.
[38.2] The
appellant is ordered to pay the respondents’ costs of the
appeal, including costs of counsel as per Scale
A.
WJ
GROENEWALD, AJ
I
concur
CJ
MUSI, JP
I
concur
P
MOLITSOANE, J
On
behalf of the Appellant:
Adv
ID Masoka
Appearing
with:
Adv
CZ Muza
Instructed
by:
Matlho
Attorneys, Bloemfontein
On
behalf of the Respondents:
Adv K
Motholo
Instructed
by:
State
Attorney, Bloemfontein
[1]
De Klerk v Minister of Police
2021 (4) SA 585
(CC) at 593D - F
[2]
Mahlangu
and
another v Minister
of
Police
[2021]
JOL 50340
(CC) at par 32; Minister of Safety and
and
Security v Sekhoto
2011 (5) SA 367
(SCA) at 373, par 7; De Klerk v
Minister of Police
supra
at
593E
[3]
Ibid at 373, par 6; Also see Duncan v Minister of Law and
Order
1986
(2) SA 805
(A) at 818G-H
[4]
Biyela
v Minister of Police
(1017/2020)
[2022] ZASC 36 (01 April 2022)
at
par 33
[5]
Ibid
at par 34 and 35
[6]
Minister
of Safety and
and
Security v Sekhoto
supra
at
379C-E;
[7]
Biyela
v Minister of Police supra
at
par 36
[8]
[2023]
JOL 61903
(CC) at par 52
[9]
Record, bundle H2, p.82, lines 23-24; Complainant’s
statement,
Bundle B (Plaintiffs Discovery) at 104
[10]
Record,
Bundle H2, p.75, lines 6 - 10
[11]
Record,
Bundle H1, p.6, lines 10 - 15
[12]
Record,
Bundle H1, p.14 , line 21 to p.15, line 11
[13]
Minister
for Justice and Constitutional Development v Moleko
[2008] 3 All SA
47
(SCA) at par 8
[14]
Kathrada v Arbitration Tribunal
1975 (2) SA 673
(A) at 679B,
Baptista v Stadsraad van Welkom 1996