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 92
|
|
Moni v Minister of Police and Another (3478/2015) [2024] ZAECMKHC 92 (27 August 2024)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE
DIVISION, MAKHANDA)
Case Number.:
3478/2015
In the matter between:
SITHEMBELE
MONI
Plaintiff
and
MINISTER
OF POLICE
First Defendant
REUBEN
VAN SCHALKWYK
Second Defendant
JUDGMENT
Beshe
J
Introduction
[1]
Section 12(1) of the
Constitution guarantees everyone the right to freedom and security
of
the person which
inter alia
includes:
the right not to be
deprived of freedom, arbitrarily or without just cause.
[2]
The plaintiff in this matter
instituted an action against the defendants in which he claims
recompense for damages he alleges he suffered as a result of unlawful
arrest and detention.
[3]
First defendant is sued in his
capacity as Minister of Police who is vicariously liable
for wrongful
acts by his employees committed during the course and scope of their
employment with him. Second defendant is cited
on the basis that he
was the investigating officer of the criminal case in respect of
which the plaintiff was arrested as well
as on the basis that he was
the arresting officer.
[4]
Plaintiff’s claims are as
follows:
Claim 1:
Unlawful arrest in
respect of which he claims R500 000.00.
Claim 2:
Detention from 18 August
2014 to 25 October 2014 in respect of which he claims R3 000 000.00.
Claim 3:
Loss of income, in this
regard his claim is for R15 937.20.
Pleadings.
[5]
Plaintiff pleaded that the
arrest was effected without a warrant of arrest on 18 August
2014 in
circumstances where members of the first defendant did not harbour a
reasonable suspicion that he had committed the offence
of rape. That
first defendant’s employees failed to do a thorough
investigation before arresting him. He was only released
from
detention on 25 October 2014. As a result of the arrest and
detention, he suffered damages including loss of income in the
amount
claimed.
[6]
Defendants pleaded that the
plaintiff was lawfully arrested and detained on being reasonably
suspected of having raped a minor child, an offence listed in
Schedule 1 of the Criminal Procedure Act 51 of 1977 (the Act). That
therefore the arresting officer was entitled to arrest the plaintiff
without a warrant in terms of Section 40(1)(b) of the Act.
[7]
Plaintiff was the only witness
to testify in support of his claims. So was the arresting
officer
Captain Reuben van Schalkwyk in respect of defendants’ case.
[8]
Plaintiff’s evidence was
short, to the point and to the following effect:
He is a 40-year-old male
person from Queenstown. On the 18 August 2014 the police arrived at
his workplace, being Total garage service
station and arrested him
for rape of person he did not know. The arrest took place in full
glare of his colleagues. He was taken
to the police station where he
was locked up until his first court appearance. The conditions where
he was locked up were despicable
in that there was no roof and that
one could see the sky. Sometimes they got only one meal a day. He was
provided with one blanket.
The matter was postponed approximately
five times. He was admitted to bail and released towards the end of
October. He could not
go to work as a result of the detention and
lost earnings during that period. He earned R3 700.00 a month.
He therefore lost
R3 700.00 x 5 not having worked for five
months. Even though he was released from custody after two months, he
was not allowed
back at work for another three months. The rape
charge against him was ultimately withdrawn.
[9]
Cross examination elicited the
following factors from the plaintiff:
He did not work every day
at the Total garage. He owned a motor vehicle which he used as a taxi
when off duty as a e-hailing service.
The description of the motor
vehicle is Opel Cadett Cub hatch back, white in colour with blue
stripes on the sides and tinted windows.
He also has a contract to
transport school children. The day preceding his arrest someone
stopped his car and remarked that “this
is the car”. This
was a lady who was in the company of a young child. He did not recall
whether he alighted from his vehicle
and being asked to take off his
cap and whether the young girl confirmed he was the person who raped
her. He stated that he heard
about rape of a young girl who was
abducted from Van Collar school on 31 July 2014 only in court. The
reason plaintiff contends
second defendant did not have probable
cause or suspicion that he committed rape is because there are many
vehicles that are similar
to his in Queenstown. The reason his bail
application could not be heard timeously is because second defendant
did not attend court
which resulted in his bail application being
postponed.
[10]
Captain van Schalkwyk testified that he was
allocated the docket to investigate a case of a rape in early
August
2014. At the time he held the rank of a Warrant Officer. The docket
contained A33 complainant’s mother’s statement,
A36 which
is complainant’s statement as well as that of Ms Dywili who is
a teacher at V[…] C[…] primary school.
Also filed in
the docket at that stage was a medico-legal examination report (J88)
in respect of the rape victim. Therein, details
of injuries suffered
by the victim, which were said to be consistent with sexual assault,
were recorded.
[11]
As would appear from the abovementioned
statements, the incident was brought to the attention of
complainant’s
mother by her class teacher Ms Dywili. Ms Dywili
in turn was alerted to complainant having been placed inside the boot
of a car,
by one of the pupils at the school on the 31 July 2014. It
was on the following day when she saw the complainant that she
enquired
about that incident from her. She then reported the matter
to the school principal and the matter was ultimately reported to
complainant’s
mother.
[12]
The young boy who reported the matter to Ms Dywili
described the motor vehicle in question as being a white
sedan with
black stripes. He could only make out 759 EC on the car’s
registration number from where he was.
[13]
In her statement, complainant recounted how the
abduction and rape occurred.
[14]
According to complainant’s mother, the
latter described the motor vehicle in question as being white
with
blue and black stripes.
[15]
Captain van Schalkwyk proceeded to obtain
statements from
inter alia
the seven-year-old boy who
witnessed the complainant being placed inside the boot of a car. He
described the motor vehicle as being
white with dark windows and that
the only characters he noticed from its registration are 759 EC from
a distance. That it was driven
by a black male person.
[16]
Captain van Schalkwyk testified that as he carried
on with the investigations he kept in touch with the
complainant’s
mother. It is during one of the communications with complainant’s
mother that the latter informed him
that the complainant pointed out
to her the motor vehicle into which she was taken/abducted and
thereafter raped. She took the
registration number of the motor
vehicle which she used to make further enquiries about the said motor
vehicle from the local taxi
rank.
[17]
Captain van Schalkwyk only reduced that into
writing in the form of statement from complainant’s mother
a
day after plaintiff’s arrest. The statement was also filed in
the docket. As a result of the information that was received
from
complainant’s mother, he together with plaintiff’s mother
proceeded to Total garage where plaintiff was employed.
He conducted
some investigations there. Armed with all the information at his
disposal, he formulated a reasonable suspicion that
the plaintiff
committed rape of the minor child. He then arrested the plaintiff on
the 18 August 2014. It was only on the following
day however that he
obtained a written statement from the complainant’s mother
concerning what happened when the complainant
pointed the plaintiff
to her in the township. He however could not confirm whether he
recorded what complainant’s mother
told him before he reduced
it to a statement the day following plaintiff’s arrest anywhere
else.
[18]
It is common cause that the charge against the
plaintiff was withdrawn due to the fact that not enough male
DNA was
obtained from the swab (vulva) collected from the complainant. During
cross-examination by plaintiff’s counsel, Captain
van Schalkwyk
confirmed that as at the time of the arrest of the plaintiff he was
not identified in any of the statement filed
in the docket at that
stage.
Parties’
submissions.
[19]
It was argued on plaintiff’s behalf that an
adverse inference should be drawn from defendant’s
failure to
call the officer who obtained the complainant’s statement to
explain why it does not state that she pointed out
plaintiff’s
motor vehicle. This based on the fact that, so it was argued, the
statement was obtained on 3 August 2014. And
yet according to
complainant’s mother, she pointed the motor vehicle to her on
the 2 August 2014 as would appear from the
statement obtained from
complainant’s mother on the 19 August 2014. Further that the
information allegedly recorded by the
arresting officer in this
regard was not recorded anywhere prior to it being recorded in
complainant’s mother’s statement.
It being argued that
the statement of the 19 August 2014 by complainant’s mother was
designed to justify the warrantless
arrest of the plaintiff. Mr
Somandi made an in-depth analysis of the legal principles as they
relate to
onus
resting on the defendant to prove the
lawfulness of the arrest; what constitutes a reasonable suspicion;
reasonable grounds to
suspect that a Schedule 1 offence has been
committed. The court was referred to a number of decided cases in
this regard which
I have had regard to. It was argued that at the
time of plaintiff’s arrest the second defendant did not have a
reasonable
suspicion upon which plaintiff’s arrest was based.
[20]
It was conceded on behalf of the defendants that
the
onus
to prove the lawfulness of the warrantless arrest and
subsequent detention rested on the defendants. It was pointed out as
far
as the loss of income claim, the
onus
rested on the
plaintiff. It was further pointed out on behalf of the defendants,
correctly so, that the issue in this matter is
whether based on the
evidence that was at second defendant’s disposal, he properly
exercised his discretion to effect the
arrest of the plaintiff
without a warrant. I however do not agree with the submission that
there is no dispute as to what information
was available to the
second defendant in the exercise of that discretion. In other words,
the discretion to invoke
Section 40(1)(b)
of the
Criminal Procedure
Act.
Discussion
.
[21]
Plaintiff contends that at the time of the arrest
the statements that second defendant had at his disposal
did not
point to the identity of the plaintiff, did not identify the culprit.
They did not contain the correct registration of
plaintiff’s
motor vehicle. The motor vehicle in question was described as a sedan
as opposed to being a hatch back. It is
contended on behalf of the
defendants on the other hand that second defendant had further
information that did not form part of
the police docket at the time
emanating from what complainant’s mother told him regarding the
complainant’s pointing
out of the suspect to her. As well as
the enquiries she made following that pointing out by the
complainant. This was also coupled
with enquiries van Schalkwyk made
at Total garage before arresting the plaintiff.
[22]
It appears to be common cause between the parties
however that:
The complainant, a minor
child sustained injuries that were consistent with sexual assault. It
also appears to be common cause or
not in dispute that the
complainant was abducted from outside the premises of her school in a
white motor vehicle. It is further
common cause that on a certain
Saturday plaintiff’s motor vehicle was stopped by complainant’s
mother who was with
the complainant.
[23]
The issues regarding this aspect, the stopping of
plaintiff’s motor vehicle by complainant’s
mother is the
date on which this occurred and the absence of evidence of the
recordal of this event by the investigating officer
anywhere before
the plaintiff’s arrest. What is clear and not in dispute is
that this happened on a date prior to plaintiff’s
arrest. This
in my view corroborates defendants’ case that the second
defendant had this information at his disposal at the
time of
plaintiff’s arrest and that this information led to the arrest
of the plaintiff. That is after second defendant had
followed up on
the information by visiting the garage where plaintiff was employed.
It seems highly improbable that the complainant’s
mother would
keep the information to herself regarding the identity of the person
who is alleged to have raped her seven-year-old
daughter and not pass
it on to the police. This after all the trouble it is alleged she
took to trace the person suspected of having
raped her daughter. This
also begs the question; why did Captain van Schalkwyk arrest the
plaintiff if he did not have this information?
Why did he go to his
place of work to make certain enquiries?
[24]
Second defendant’s reliance or association
of plaintiff with the motor vehicle described in one of
the
statements by complainant’s schoolmate in impugned on the
following basis:
The young boy stated that
the characters of the registration plate he could make out from where
he was are 759 EC. He described
the motor vehicle as sedan and yet
plaintiff’s motor vehicle is a hatch back. Plaintiff’s
motor vehicle’s registration
number is B[…].
There is not merit in
this argument. The young boy was witnessing what must have been an
unexpected stressful if not traumatic occurrence
of his friend being
placed inside the boot of a car. He was standing a distance away from
the motor vehicle. Even his presence
of mind to try and note the
registration of the motor vehicle in question is commendable in the
circumstances. As to the motor
vehicle being described as a sedan as
opposed to it being a hatch back. This in my view is of no moment.
Even the certificate of
registration of the said motor vehicle
describes it as a “sedan”.
[25]
It is common cause as indicated earlier in this
judgment that the prosecution was not proceeded with, the
charge
against the plaintiff having been withdrawn due to the fact that not
enough DNA could be obtained from vulva swab that was
collected from
the complainant.
[26]
The information that the second defendant had at
the time of plaintiff’s arrest was the following:
Evidence that the
complainant was abducted and placed inside the boot of a white
vehicle. Some of the characters of the car’s
registration.
Evidence of complainant having been sexually assaulted. Information
that the mother of the complainant, after the
latter had pointed out
the plaintiff and his car to her and after the mother had made
certain investigations, she was able to say
that the person pointed
out to her worked at the Total garage. That the person also
moonlighted a taxi driver. Having himself made
enquiries at the said
garage and establishing that on the day of the alleged rape the
plaintiff was off duty. It turned out when
found that the plaintiff’s
motor vehicle bore a striking resemblance to the one described by
complainant’s school friend.
[27]
In the circumstances, can it be said that the
second defendant was justified in arresting the plaintiff
without a
warrant on the ground that he reasonably suspected him of having
committed rape, an offence referred to in Schedule 1
of the
Criminal
Procedure Act 51 of 1977
as envisaged in Section 40(1)(b) of the Act?
[28]
It is trite that the jurisdictional factors for a
Section 40(1)(b) defence to succeed are:
(i) the arrestor must be
a peace officer;
(ii) the arrestor must
entertain a suspicion that;
(iii) the suspect
committed an offence referred to in Schedule 1; and
(iv) the suspicion must
rest on reasonable grounds.
[1]
[29]
The central issue in this matter is whether second
defendant’s suspicion in this regard rested on
reasonable
grounds. Did Captain van Schalkwyk have reasonable grounds for
suspecting the listed offence was committed by the person
he
arrested? The plaintiff in this matter. The meaning of suspicion in
this context as was formulated by Lord Devlin has widely
been
accepted by our courts to be that “Suspicion in its ordinary
meaning is a state of conjecture or surmise where proof
is lacking”.
“I suspect but I cannot prove”. “Suspicion arises
at or near the starting point of an investigating
of which the
obtaining of
prima
facie
proof
is the end”.
[2]
It is also
trite that the test for reasonableness in this regard is an objective
one.
[3]
Namely whether a
reasonable man in the circumstances would have held such a suspicion.
Expanding on application of this test the
following was stated in
Mabona
supra
:
[4]
‘
Would a reasonable
man in the second defendant’s position and possessed of the
same information have considered that there
were good and sufficient
grounds for suspecting that the plaintiffs were guilty of conspiracy
to commit robbery or possession of
stolen property knowing it to have
been stolen? It seems to me that in evaluating his information a
reasonable man would bear in
mind that the section authorises drastic
action. It authorises an arrest on the strength of a suspicion and
without the need to
swear out a warrant, ie something which otherwise
would be an invasion of private rights and personal liberty. The
reasonable man
will therefore analyse and assess the quality of the
information at his disposal critically, and he will not accept it
lightly
or without checking it where it can be checked. It is only
after an examination of this kind that he will allow himself to
entertain
a suspicion which will justify an arrest. This is not to
say that the information at his disposal must be of 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 upon solid grounds. Otherwise,
it will be flighty or arbitrary, and not a reasonable suspicion.’
[30]
I am of the view that armed with the information
he had at his disposal, Captain van Schalkwyk’s suspicion
that
the plaintiff raped the complainant was based on solid grounds. That
his suspicion in this regard, based on the information
he had at his
disposal was reasonable. He had good and sufficient grounds for
suspecting that the plaintiff was complicit in complainant’s
rape. In the result I therefore find that plaintiff’s arrest
without a warrant was justified by
Section 40(1)(b)
of the
Criminal
Procedure Act.
[31]
There is one more aspect I need to address. After
hearing the evidence of both parties, it was agreed that
the matter
should be postponed
sine die
for the parties to file their
heads of argument after which I will determine whether I would like
for the parties to present argument
in open court. Due to some
confusion, the fact that heads of argument had been filed by the
parties was not brought to my attention.
It was only when the parties
enquired about the judgment that it transpired that they had filed
their heads of argument. I apologise
unreservedly for the delay in
rendering the judgment.
[32]
Accordingly, the following order will issue:
Plaintiff’s claims
against both defendants are dismissed with costs.
N G BESHE
JUDGE OF THE HIGH
COURT
APPEARANCES
For
the Plaintiff
:
Adv: M Somandi
Instructed
by
:
MLINDAZWE ATTORNEYS
C/o
MFUNDO NTSHWAXA ATTORNEYS
116
High Street
MAKHANDA
Ref:
MON/124/MN
Tel.:
046 – 622 2044
For
the Defendants :
Adv:
B L Boswell
Instructed
by
:
WHITESIDES ATTORNEYS
53
African Street
MAKHANDA
Ref.:
Mr G Barrow/C11492
Tel.:
046 – 622 3546
Date
Heard
: 20
November 2023
Date
Delivered
: 27
August 2024
[1]
Minister
of Safety and Security v Sekhoto
2011 (1) SACR 315
at 320 paragraph
[6].
[2]
Shabaan
Bin Hussein and Others v Chong Fook Kam and Another
[1969] All ER
1627
(PC) at 1630.
[3]
Mabona
and Another v Minister of Law and Order and Others 1988 (2) SA at
654 SECLD 658 (E).
[4]
Page
658 E-H.