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2024
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[2024] ZANCHC 69
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Simba v Minister of Police (80/2021) [2024] ZANCHC 69; 2024 (2) SACR 430 (NCK) (26 July 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
NORTHERN CAPE DIVISION, KIMBERLEY
Case No: 80/2021
Heard on: 15 – 17/04/2024 &
22/05/2024
Delivered on: 26/07/2024
Reportable: YES / NO
Circulate to Judges: YES / NO
Circulate to Magistrates: YES / NO
In
the matter between:
SHARIF
SALIM SIMBA
Plaintiff
and
MINISTER
OF POLICE
Defendant
JUDGMENT
MAMOSEBO
J
[1]
The vexed question to be answered in this action is whether the
plaintiff, Mr S Simba,
a Tanzanian national, was unlawfully arrested
and detained by members of the South African Police Service (SAPS) on
20 March 2020
as alleged or whether the arrest was within the purview
of s 40(1)(b) of the Criminal Procedure Act, 51 of 1977 (the CPA).
The
parties had agreed at the outset of the trial that the
merits and quantum be separately adjudicated in terms of Rule 33(4)
of the
Uniform Rules of Court. On 09 May 2023
an order separating merits and quantum was granted. I shall
thus deal with the question of liability.
[2]
On 19 January 2021 the plaintiff instituted an action out of this
Court against the
defendant, Minister of Police, for damages flowing
from his arrest and detention by the South African Police Service on
20 March
2020. He was apprehended and detained for a period of
approximately two (2) months and six (6) days before the public
prosecutor
withdrew the charges against him.
[3]
The parties had agreed to submit a special case for adjudication by
the court in terms
of Rule 33(1) of the Uniform Rules of Court.
Having read the papers I issued a directive for the matter to
proceed to trial
which took place on 15 to 19 April 2024.
[4]
It is trite that in an action for wrongful arrest and detention a
plaintiff only bears
the
onus
of proving the arrest and
detention. In
Relyant Trading (Pty) Ltd v Shongwe and
Another
[2007] 1 All SA 375
(SCA) Malan AJA summed it up as
follows:
“
To
succeed in an action based on wrongful arrest the plaintiff must show
that the defendant himself, or someone acting as his agent
or
employee deprived him of his liberty.”
The arrest and detention are not
disputed. Therefore, the defendant bore the
onus
to
prove the lawfulness of the arrest and detention.
[5]
This is the case for the defendant. On 20 March 2020 the
plaintiff was in the
company of one Mr Mahomed when he was accosted
by the SAPS members, Sgt Jacob Lele Madoda, the driver of a police
vehicle and his
commander, Capt. George Brooks. The two
officers had been patrolling within the 10km radius from the South
Africa/Namibia
border known as the Nakop border when they spotted two
unknown men trying to hide in the bushes near the bridge. Upon
confrontation,
Mahomed responded to their communication while the
plaintiff claimed not to be conversant in the English language.
Mahomed
translated the questions posed by Madoda and Brooks to
the plaintiff.
[6]
The said SAPS members demanded proof of passports and permits from
the two men who
were already within the borders of South Africa.
According to Madoda, the two men said they were not in
possession of valid
travel documents. The police took them to
Mr Bennie, the immigration officer at the border, who followed up
with the immigration
office in Upington. Thereafter, Mr Nicol
Andreas, of the Department of Home Affairs in Upington, some 130km’s
from
the border, invited them to bring the two suspects to Upington
for a preliminary enquiry to determine whether or not they had the
required documents.
[7]
Sgt Madoda was accompanied by Sgt Letebele to Upington where the two
suspects were
arrested after confirmation by Andreas that they were
illegally in the country. They were booked in police custody
pending
further investigations. Madoda denied that the
plaintiff produced asylum documents and a passport on demand. He
was
elaborately cross-examined on the entry in the investigation
diary dated 20 March 2020 where it is recorded: “
documents
filed travel documents as per A2”.
Sgt Madoda
explained that no emergency travel documents were presented to him
and the passport he saw had expired in 2016. Sgt
Madoda
maintained that he arrested the plaintiff for failing to produce the
valid travel documents.
[8]
Capt George Brooks has been stationed at the Nakop Border for almost
12 years. He
has held the rank of Captain for 20 years and has
been a SAPS member for the past 31 years. He not only confirmed
what was
testified to by Sgt Madoda, but also stated that their
search or patrol of the surroundings at the border also includes the
storm
water drains to check for illegal movement of people. He
added that since the only document produced, when they encountered
the plaintiff and his companion, was a passport, they returned with
the duo to the immigration office at the border. Brooks
left
immediately after handing the two men over to the immigration
officer.
[9]
Mr Nico Steven Andreas is employed by the Department of Home Affairs
as a Control
Immigration Officer in Upington. He conducted the
verification of the plaintiff on the Movement Control System. This
revealed that the plaintiff entered the border through Oshoek port of
entry in Swaziland. His travel document, which had
an
endorsement for 90 days, had already recorded his movement on 21
August 2016. The plaintiff’s Temporary Residence
Permit
(TRP) expired on 08 October 2016. This, notwithstanding, the
passport was valid but the Temporary Residence Visa had
expired. It
followed that the plaintiff was an illegal immigrant. Andreas
explained that the plaintiff’s most
recent passport was last
updated on 25 August 2016. Having completed the verification
process he then issued a warrant of
detention which he handed over to
the SAPS members. The plaintiff and his companion were arrested
by Sgt Madoda and taken
to Upington Police Station where their
constitutional rights as per SAP 14A were explained before they were
detained. The
plaintiff was charged with a contravention of s
49(1)(a) read with
s 1(1)
of the
Immigration Act 13 of 2002
in that
he had remained in the Republic without any permit or documentation.
[10]
Andreas, like Madoda and Brooks, denied being presented with the
plaintiff’s Emergency
Travel Document issued by the United
Republic of Tanzania. He maintained that had the plaintiff
entered the border using
the said Emergency Travel Document, the
immigration officer, processing his entry, would have put the
official stamp on the document.
Andreas further pointed out
that the Emergency Travel Document permits the holder to a single
trip. Pertaining to the
fact that the State Prosecutor, Mr W
Ntshekang, withdrew the charges against the plaintiff on the basis
that the officials did
not check the correct information, Andreas
dismissed that remark as vague because it does not state which
information was unchecked.
[11] Ms
Melicia Julies, a former SAPS detective who had held the rank of
Warrant Officer for 16 years,
was the investigating officer in the
plaintiff’s criminal trial. The case docket was allocated
to her on 23
March 2020. She ensured that the docket was taken to court at
all the plaintiff’s appearances. There had been
no single
instance where the prosecutor gave instructions in the investigation
diary for her to obtain evidence that was not contained
in the
docket. Julies indicated the dates on which the case was before
the Magistrate and reasons for postponements.
On 23 March 2020
the matter was postponed to 24 March 2020 for a Swahili interpreter.
On 24 March 2020 the accused who were
in custody were not brought to
court due to the Covid 19 pandemic and the case was postponed to 16
April 2020 for a trial date.
On 16 April 2020 the case could
not proceed because of the national lockdown. The case was
postponed to 05 May 2020
to arrange a trial date. On 05 May
2020 the case was postponed to 15 May 2020 for a plea of guilty. On
15 May 2020
the case was again postponed to 22 May 2020 for a guilty
plea. The record does not show what happened on 22 May 2020 but
on 26 May 2020 the following entry was made by the Magistrate:
“
The State
request the charge be withdrawn due to [the fact that the] officials
did not check the correct information. The
charge is therefore
withdrawn.”
[12]
Following the withdrawal of the case by the State Prosecutor, Ms
Julies only received the docket
back in June 2020 which she closed.
According to Julies, the prosecutors did not give them any
instructions for purposes
of immigration investigations and that the
National Prosecuting Authority (NPA) would either liaise with the
Senior Public Prosecutor
or directly with the Immigration Office.
Counsel for the plaintiff, Mr Du Plessis, did not cross-examine
Ms Juries and her
evidence remains uncontroverted.
[13] The
plaintiff testified in his case. He came to South Africa in the
year 2000 and remained
until 2020. However, he occasionally
visited Tanzania. He had a fixed address in the Republic. He
volunteered
his services as an electrician and was employed as a
driver by Gift of the Givers, a humanitarian organisation.
[14] At
the beginning of March 2020, when he wanted to leave Tanzania to
travel to South Africa, he
was informed at the border that his
passport was no longer accepted by the East African countries and he
had to apply for a new
passport. He made an application and was
issued an Emergency Travel Document CA 02/552/02F06 dated 02 March
2020 valid for
a single trip until 30 May 2020. He carried the
Emergency Travel Document and the impugned passport whilst travelling
to
South Africa. He left Tanzania on 10 March 2020 by bus to
Zambia and took another bus from Zambia to Namibia. After
crossing the Namibian border into South Africa, he waited under a
bridge next to the road for “a truck”. Whilst
waiting, he and his companion felt a call of nature and went into the
bushes. It was then that the police apprehended them.
[15] A
body search was conducted on him and his companion. He does not
have a command of the
English language and therefore relied on his
companion to relate to him what the police were saying to them. He
produced
the documents in his possession, namely his passport which
was issued on 14 September 2012 and would only expire on 13 September
2022 and the Emergency Travel Document. He still does not
understand why the police arrested him because he was not only
carrying a valid passport but also a valid Emergency Travel Document.
Only a copy of the Emergency Travel Document was discovered
and
formed part of the docket contents.
Discussion
[16] It
is common cause that the plaintiff was not a holder of a permanent
residence permit. He explained
that he was not in possession of any
permit as he had applied for one but it was not issued yet.
Sec
9(4)
of the
Immigration Act stipulates
:
“
(4)
A foreigner who is not the holder of a permanent residence permit
contemplated in
section 25
may only enter the Republic as
contemplated in this section if-
(a)
his or her passport is valid for a prescribed period;
and
(b)
issued with a valid visa, as set out in this Act.”
[17]
Although the plaintiff’s passport was still valid until 2022 it
is significant to note
that the endorsement contained in the visa was
only valid until 2016 for the visitor’s entry of 90 days per
year, which the
plaintiff did not dispute. This essentially
means that without a valid visa the passport is rendered useless for
entry into
the Republic. Mr Andreas explained the plaintiff’s
travelling details as appearing in the Movement Control Report
extracted
from the system of the Department of Home Affairs which he
gained access to by inserting the plaintiff’s passport number
to the system. He had the option of using either the
plaintiff’s date of birth or his full names or his passport
number,
but maintained that irrespective of the option used, the
system would still give the same results. Evidently, the
Movement
Control Report without an explanation by an immigration
officer, would not have been straightforward and easy to interpret.
However,
with the explanation furnished by Andreas in his
testimony, it became clearer and comprehensible. It is
noteworthy that the
report shows the plaintiff’s last port of
entry was in Oshoek, Swaziland, on 21
August 2016.
[18]
More importantly is that the plaintiff’s temporary residence
permit or visa expired on
08 October 2016. This supports the
contention by the defendant that he was illegally in the country
despite his passport
still being valid. The probabilities are
that the plaintiff was alerted by his immigration office in Tanzania
that the Temporary
Residence Permit had expired but he chose to
ignore the warning and rather allegedly applied for an Emergency
Travel Permit which
is valid for a single trip. Whatever the
explanation that the plaintiff gave to the authorities that resulted
in him being
issued with the Emergency Travel Permit, it does not
detract from the fact that he was not permitted to be a temporary
resident
in South Africa since the expiry of his temporary permit.
More significantly is that the defendant’s witnesses,
Madoda,
Brooks and Andreas deny having had sight of the Emergency
Travel Document on the day of his arrest and only saw this during
trial.
[19]
Andreas issued a warrant for the detention of the plaintiff, on
reasonable grounds after conducting
the verification process and
handed the warrant of detention to the SAPS member as contemplated in
s 41(1)
of the
Immigration Act, which
stipulates:
“
(1)
When so requested by an immigration officer or a police officer, any
person shall identify
himself or herself as a citizen, permanent
resident or foreigner, and if on reasonable grounds such immigration
officer or police
officer is not satisfied that such person is
entitled to be in the Republic, such person may be interviewed by an
immigration officer
or a police officer about his or her identity or
status, and such immigration officer or police officer may take such
person into
custody without a warrant, and shall take reasonable
steps, as may be prescribed, to assist the person in verifying his or
her
identity or status, and thereafter, if necessary detain him or
her in terms of
section 34.
”
Clearly, the plaintiff could not rebut
the verification report that Andreas produced which confirmed that
his Temporary Residence
Permit had expired, and therefore justifying
his decision to issue a warrant for his detention.
Section 34
deals with the deportation and detention of illegal foreigners.
According to Andreas, the next step following court proceedings
that
the immigration office was awaiting was the deportation of the
plaintiff who was handed over to the SAPS to appear in court.
[20] The
question to be answered is whether the
s 40(1)(b)
requirements were
met when Madoda effected the arrest. The section provides:
“
40
Arrest by peace officer without warrant
(1) 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;…”
[21] The
jurisdictional requirements are trite: (i) The arrestor must be
a peace officer; (ii)
the arrestor must entertain a suspicion; (iii)
the suspicion must be that the suspect (arrestee) committed an
offence referred
to in schedule 1; and (iv) the suspicion must rest
on reasonable grounds. Van Heerden JA enunciated the principle
in
Duncan v Minister of Law and Order
1986 (2) SA 805
(A) at
818G – H that once the jurisdictional requirements in s
40(1)(b) of the CPA are satisfied, the peace officer
may, in the
exercise of his discretion, arrest the suspect. Of importance
is that the discretion so conferred must be properly
exercised.
At 819 A, Van Heerden JA explains the general rule that where the
exercise of a discretion is questioned, the
onus
to establish
the improper object of the arrestor will rest on the arrestee.
[22] Mr
Du Plessis, counsel for the plaintiff, argued that the arresting
officer was Sgt Letebele
and not Sgt Madoda and that the defendant
must stand and fall by his pleadings. However, as testified to
by Sgt Madoda and
corroborated by Capt Brooks, Sgt Madoda was the
arresting officer. Sgt Letebele was the driver who accompanied
Sgt Madoda
to the immigration office in Upington for the verification
process. Sgt Madoda and Capt Brooks were both credible
witnesses
and gave me no reason to doubt their testimony. The
issue of the arrestor being a peace officer was not challenged by the
plaintiff. In his written heads and in argument, Mr du Plessis
contended that Captain Brooks deposed to an affidavit stating
that he
was the one who effected the plaintiff’s arrest. But this
contention is incorrect. Sgt Madoda testified
and was
corroborated by Capt Brooks that he effected the arrest. Captain
Brooks’ affidavit reads:
“
The
illegal foreigners could not satisfy me as a police official and they
were arrested for a contravention of the Immigration Act.”
He
does not say “
I arrested them.”
[23]
Counsel further submitted that the charge appearing on the SAPS form
SAPD 3M(L) under the head
“
Verklaring Rakende Onderhoud Met
Verdagte”
shows the offence as “
suspected illegal
immigrant”
which does not exist. In the SAPS 503 form
completed by Capt Brooks under crime committed is the following:
Contravention of Immigration Act 13 of 2002 (49).
In my
view, the argument is technical and unnecessary because the police do
not craft the final charges to be levelled against
the perpetrators.
That responsibility resides with the National Prosecuting
Authority. The plaintiff was, in my view,
adequately aware of
his transgressions and the reason for his apprehension and it cannot
be gainsaid that he understood the police
and immigration officer.
[24] It
was further contended for the plaintiff that the offence which he was
suspected of having
been committed did not resort under schedule 1.
However, it would appear that schedule 1 includes, apart from
those specifically
mentioned, offences for which a sentence imposed
may be imprisonment exceeding six months without an option of a fine.
Section 49(1)(a)
of the
Immigration Act sets
the penalty to not
exceed two years.
[25]
What may have sent the public prosecutor on a tangent to have the
criminal charges against the
plaintiff withdrawn is his unexplained
failure to subpoena the immigration officer to court to explain the
contents of the Movement
Control Report and the effect of an expired
visa. The plaintiff was in the country illegally. It is
common cause that
the presiding Magistrate recorded on at least two
instances in the discovered court record that the plaintiff intended
to plead
guilty to the charge. A person does not plead guilty
to an offence he did not commit. When cross-examined in this
regard
his response was that he was unsure how long he was going to
remain in detention and wanted the case to be over and done with.
This explanation is feeble because the outcome of the case was
not known to him. It cannot, in my view, be persuasively
argued
that the further detention of the plaintiff was unlawful.
[26] The
plaintiff was not a credible and truthful witness and I observed him
as a person who was
adapting his version to suit his circumstances.
For a person who has been in South Africa since at least the
year 2000 and
who has worked or volunteered to work for the Gift of
the Givers, it is improbable that he was not conversant with the
basic English
language. When the defendant’s witnesses
testified I seemed to gain the impression that the plaintiff did not
understand
a single word of English and was wholly dependent on his
companion’s translation when they were accosted at the bridge.
He
and his counsel even capitalised on the fact that upon his
arrest the SAPS members, who completed the statement regarding
interview
with suspect (SAP 3M(L) form, did not utilise the services
of an interpreter which they contend was unfair to the plaintiff as
his constitutional rights may have been compromised due to the
language barrier.
[27]
Quite pertinently on that form (SAP 3M(L) compiled by Cst TA Basson,
when the plaintiff was asked
whether he wished to speak on his own or
engage the services of a legal representative, the handwritten
response is that the suspect
will apply for legal aid. The
plaintiff further said that he would furnish a statement in court.
This, to me, does
not substantiate any compromise on the rights
of the plaintiff nor a breakdown in communication. Be that as
it may, as his
counsel was granted the indulgence during the trial to
turn his back on the Court and approach the plaintiff in order to
obtain
further instructions, if any, I observed that his counsel
spoke directly to him in English. Upon his return I asked
counsel
if my observation was correct and he confirmed it.
[28] Mr
du Plessis further attacked the SAPS members’ conduct in
failing to explain the provisions
of
s 50
of the CPA to the plaintiff
upon his arrest.
Section 50
(1) of the CPA provides that:
“
(a)
Any person who is arrested with or without a warrant for allegedly
committing an offence,
or for any other reason, shall as soon as
possible be brought to a police station or, in the case of an arrest
by a warrant, to
any other place which is expressly mentioned in the
warrant.
(b)
A person who is in detention as contemplated in paragraph (a) shall,
as soon as reasonably
possible, be informed of his or her right to
institute bail proceedings.
(c)
Subject to paragraph (d), if such an arrested person is not released
by reason that
—
(i) no
charge is to be brought against him or her; or
(ii) bail is not
granted to him or her in terms of
section 59
[by a police official of
above the rank of non-commissioned officer] or 59A [by a Director of
Public Prosecutions or a prosecutor],
he or she shall be brought before a
lower court as soon as reasonably possible, but not later than 48
hours after the arrest.”
[29]
Failure to observe the provisions of
section 50
is not contained in
the plaintiff’s pleadings and was argued as a new matter before
me. Notwithstanding, the section
makes provision for the
procedure to be followed where bail has not been granted. It is
unclear on the facts before me, whether
or not bail was applied for
and refused. However, sight should not be lost of the fact that
when the police arrested the
plaintiff on that day he was without the
required documentation and therefore illegally in the country and
that should be the end
of the enquiry insofar as the police liability
is concerned. For the police to release him without established
facts would
have defeated the purpose. EM Grosskopf JA in
Minister of Law and Order v Kader
1991 (1) SA 41
(A) at 51A –
C held:
“…
..I
consider, that when s 50(1) speaks of further detention for the
purposes of trial being ordered by the court 'upon a charge
of any
offence', this does not contemplate that the matter would be ready
for trial at the first appearance of the arrested person,
or that a
properly formulated charge must then be preferred against him.
In this regard I agree with the conclusion
reached in Ex parte
Prokureur-generaal, Transvaal (supra). All that the section
contemplates is that the purpose of the detention
throughout must be
to secure the attendance of the accused at his trial upon the charge,
which, it is expected, will be preferred
against him. It goes
without saying that it is the function of the judicial officer to
guard against the accused being detained
on insubstantial or improper
grounds and, in any event, to ensure that his detention is not unduly
extended.”
[30] It
is salutary to remind ourselves that the Preamble to
Immigration Act
provides
that the Act aims at setting in place a new system of
immigration control which ensures that-
“
(b)
security considerations are fully satisfied and the State retains
control over the immigration
of foreigners to the Republic; and
(f)
the entry and departure of all persons at ports of entry are
efficiently facilitated,
administered and managed…”
[31]
Counsel for the plaintiff urged this Court to draw a negative
inference on the failure by the
defendant to either call Cst Basson
or to make him available to the plaintiff. Counsel for the
defendant, Ms Panduva’s,
explanation regarding this submission
was that there was prior communication between the erstwhile
defendant’s attorney and
the plaintiff’s attorney of
record regarding the non-availability of Cst Basson as he had passed
on. Therefore, there
was no point entertaining the plaintiff’s
request in this regard.
[32] I
have no difficulty in rejecting the version of the plaintiff for the
following reasons.
32.1 He was
aware that his temporary residence permit had expired in 2016 when he
returned to the country
in March 2020 and it would be unlawful for
him to enter South Africa without the new permit.
32.2 South
Africa does not fall under the East African countries where he was
allegedly told his passport
would not be accepted.
32.3 His
ultimate destination was South Africa but he boarded buses from
Tanzania to Zambia and Zambia to
Namibia and surreptitiously decided
to wait for “a truck” to pick him up. On
cross-examination he changed and
said he was intending to hitchhike a
lift from any vehicle. He did not explain why he did not
arrange for his transportation
to reach South Africa since that was
his final destination.
32.4 Moreover,
if the plaintiff had produced both the passport and the Emergency
Travel document at the
border as he alleges, entering the
Namibian/South African border legally, certainly, the immigration
officer would have stamped
the passport.
32.5 The
version that some male immigration officer at the border just looked
at the Temporary Residence
Permit and allowed the plaintiff to pass
is palpably implausible, farfetched, and clearly untenable.
[33] On
the aforegoing analysis, I am satisfied that reasonable grounds
existed for the arrest of
the plaintiff. Undeniably, both the
SAPS members as well as the immigration officer were not satisfied
that the plaintiff
was entitled to be in the country and the
Immigration Act empowered
them to keep him in custody. The
plaintiff failed to counter the verification done on his status as
testified to by Andreas.
That, in my view, persuades me that
Sgt Madoda exercised his discretion properly when arresting the
plaintiff. The arrest
of the plaintiff was for the purpose of
bringing him before court.
[34]
Mpati P in
National Commissioner of Police and Another v Coetzee
2013 (1) SACR 358
(SCA) held:
“
[14]
…The arresting officer is not required to conduct a hearing
before effecting an arrest. Whether
an arrested person should
be released and, if so, subject to what conditions, arises for later
decision by another person and that
is the safeguard to the
arrestee's constitutional rights. Once the jurisdictional
requirements are satisfied the peace officer
has a discretion as to
whether or not to exercise his or her powers of arrest.
Obviously, the discretion must be exercised
properly.”
[35] The further
detention in court was explained by the Magistrate in the record of
proceedings. On the
evidence presented, nothing suggests that
the plaintiff’s further detention was unlawful. For all
the above reasons
I conclude that Sgt Madoda exercised his discretion
to arrest the plaintiff properly and not arbitrarily or without
lawful cause.
It follows that the defendant has made out a case
for the plaintiff’s case to be dismissed with costs.
[36] On
the question of costs there is no reason why costs should not follow
the result.
[37] In
the result, the following order is made:
The claim against the defendant is
dismissed with costs.
MAMOSEBO J
NORTHERN CAPE DIVISION
For the plaintiff:
Adv H Du Plessis
Instructed by:
Brandt & Lambrechts Attorneys
c/o
PGMO Attorneys Inc
For the defendant:
Ms N Panduva
Instructed by:
Office of the State Attorney,
Kimberley