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2024
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[2024] ZALMPPHC 185
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Calvin v Minister of Police and Others (6936/2021) [2024] ZALMPPHC 185 (13 November 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO
DIVISION, POLOKWANE)
CASE
NO: 6936/2021
(1)
REPORTABLE: YES/
NO
(2)
OF INTEREST TO THE JUDGES: YES/
NO
(3)
REVISED
YES
/NO
SIGNATURE:
Naude-Odendaal J
DATE:13/11/2024
In
the matter between:
SEBATHA
CALVIN
PLAINTIFF
and
MINISTER
OF POLICE
1
st
DEFENDANT
PROVINCIAL
COMMISSIONER OF
2
nd
DEFENDANT
SOUTH
AFRICAN POLICE SERVICE:
LIMPOPO
PROVINCE
FRANK
SIBANDA
3
rd
DEFENDANT
JUDGMENT
NAUDE-ODENDAAL
J:
INTRODUCTION:
[1]
The Plaintiff instituted action for damages against the Defendants
arising from his
arrest and detention on 2 January 2021 at or near
Mataung Village, Mafefe, Limpopo Province, which the Plaintiff
alleges was unlawful.
The arrest was carried out by a member of the
South African Police Services, Malipsdrift, while acting in the
course and scope
of employment of the 1
st
Defendant and
therefore the Plaintiff claims vicarious liability against the 1
st
and 2
nd
Defendants. The Plaintiff alleges that he suffered
damages in the amount of R1 000 000.00 (One Million Rand).
[2]
The Plaintiff was arrested on the 2
nd
of January 2021, by
the Defendants on charges of rape and was detained for a period of 10
(ten) days. The Plaintiff was released
from custody on 12 January
2021 on bail. The Plaintiff reappeared in court on 11 March 2021, and
the matter was remanded until
14 March 2021 on which date the public
prosecutor withdrew all charges against the Plaintiff.
[3]
Although the Defendants admit the arrest and detention, the
Defendants maintain that
the arrest was lawful and conformed to
prevailing legal prescripts.
[4]
The Defendants called two witnesses. The trial proceeded on both
merits and quantum.
The Defendants had a duty to begin in the trial
and had to prove that the arrest and detention were lawful.
THE
EVIDENCE:
[5]
The Defendants' first witness was Captain Matabane. Captain Matabane
is employed by
the South African Police Services and has been so
employed for 31 years. He is a detective commander stationed at
Malipsdrift Police
Station. On the 2
nd
of January 2021,
Captain Matabane received a docket from the Community Service Centre
(CSC) whereafter he proceeded to peruse the
contents of the docket.
[6]
The Complainant was a minor female child born in 2009. She alleged
that she was raped
by a neighbour when she went to the neighbour's
homestead to charge her phone. Captain Matabane testified that he
read the Complainant's
statement, which was accepted and marked
Exhibit A during trial.
[7]
After having perused the contents of the docket, Captain Matabane
drove to the Complainant's
homestead which is at Mafefe Village. Upon
arrival at the Complainant's address, he found the Complainant
together with her mother
at their homestead. Captain Matabane
testified that he discussed the complaint with the Complainant and
her mother and asked them
where the suspect could be found.
[8]
The Complainant and her mother then took Captain Matabane to a
homestead where they
found the Plaintiff busy plastering. The
Complainant pointed to the Plaintiff as the perpetrator who raped
her.
[9]
Captain Matabane testified further that he then informed the
Plaintiff that he was
under arrest for rape, explained to him his
Constitutional rights and thereafter took him to Malipsdrift Police
Station. Captain
Matabane testified further that at the Malipsdrift
Police Station, he called the Family Violence, Sexual Offences and
Child Protection
Division and referred the matter to them for further
investigation.
[10]
Captain Matabane also testified that the statement by the Complainant
contains a different name.
The Statement speaks of Kholofelo
Madutlela, but when he was arrested by Captain Matabane, the
Plaintiff indicated that he is Calvin
Sebete. The Complainant however
pointed the Plaintiff out whereafter he was arrested. According to
Captain Matabane, Kholofelo
Madutlela and Calvin Sebete is one and
the same person.
[11]
Captain Matabane testified that based on the Complainant's statement,
her age, the evidence in
the docket and the pointing out by the
Complainant and her mother, he arrested the Plaintiff.
[12]
Under cross-examination, Captain Matabane testified that he did not
ask the Plaintiff any questions
before arresting him as his duties
were not to investigate or to usurp the duties of the trial court,
but to arrest. He merely
informed him of the reason for his
arrest and of his Constitutional Rights.
[13]
Captain Matabane further testified under cross-examination that he
believed he should have affected
arrest because according to the
Complainant's statement the Plaintiff had perpetrated the offence
multiple times against the Complainant
and he feared the Plaintiff
may commit the same offence against other victims. Captain Matabane
testified that the Complainant
was still very young and she was also
told by the Plaintiff not to tell anybody of the incident and if she
told anybody, he threatened
to kill her.
[14]
According to Captain Matabane he had a reasonable suspicion that the
Plaintiff committed the
offence. He had the statement of the
Complainant, considered the contents ·thereof and she pointed
the Plaintiff out. According
to Captain Matabane, he believed the
Complainant.
[15]
Captain Matabane further testified when asked why the Plaintiff was
not given police bail, that
rape is a serious offence and not an
offence that falls within the purview of police bail being granted.
He further stated that
the Plaintiff was arrested to bring him before
a court of law.
[16]
Captain Matabane was also asked under cross-examination why the
Complainant was not taken for
a medical examination before the arrest
was affected to which he responded that he does not do the medical
examinations, he affected
the arrest and called the Family Violence,
Sexual Offences and Child Protection Division who took the matter and
investigations
further. He testified that they take Complainant's for
medical examinations etc.
[17]
Captain Matabane confirmed under re-examination that the Plaintiff is
the Complainant's neighbour.
They know each other very well.
[18]
The Defendants called Warrant Officer Frank Sibanda as their second
witness. He testified that
he is a member of the South African Police
Services and has been so for a period of 20 years. He was the
Investigating Officer
in the present matter. His duties include, but
are not limited to investigating rape charges. He is stationed at the
Family Violence,
Sexual Offences and Child Protection Division.
[19]
Warrant Officer Sibanda testified that on the date in question he
went to Malipsdrift and found
the Plaintiff in the cells. He asked
the Plaintiff the reasons for his arrest. According to W/O Sibanda
the Plaintiff informed
him that there was a girl who caused him to be
arrested.
[20]
Warrant Officer Sibanda went to the Complainant's residence and
interviewed her and satisfy himself
of the facts. She told him that
she used to charge her phone at the Plaintiff's residence and showed
him where the Plaintiffs residence
was. She also confirmed to him
that the Plaintiff raped her. W/O Sibanda confirmed that they were
neighbours. He also arranged
for the Complainant to undergo a medical
examination.
(21]
Under cross-examination, W/O Sibanda stated that the Complainant was
taken to the doctor where a J88
was completed. He stated that
he was present when the Complainant was examined by the doctor and
the doctor told him that
there are signs that the Complainant was
sexually active and that she was sexually penetrated.
[22]
W/O Sibanda further stated that the Complainant was taken to a
forensic social worker who confirmed,
upon interviewing the
Complainant that she was sexually violated. He further stated that he
learned through experience of working
with matters involving
children, that children seldom lie.
[23]
W/O Sibanda also testified that he spoke to the Plaintiff. The
Plaintiff confirmed to him that
the Complainant often comes to his
house to charge her phone, but denied having raped her.
[24]
W/O Sibanda confirmed that the charges against the Plaintiff were
withdrawn, but stated that
he was not informed of the reasons for the
withdrawal of the charges.
[25]
After the two witnesses testified for the Defendants, the Defendants
closed their case.
[26]
The Plaintiff elected not to come and testify. According to the
Plaintiff, the Defendants had
the duty of proof and the arrest and
detention was not in dispute. The Plaintiff proceeded to close his
case without leading any
evidence.
LEGAL
POSITION:
[27]
Having admitted the arrest of the Plaintiff without a warrant of
arrest, the onus to prove that
the arrest was lawful, rests on the
Defendants. The Defendants had to prove on a preponderance of
probabilities that the Arresting
Officer at the time of the arrest,
harboured a reasonable suspicion that the Plaintiff had committed a
Schedule 1 offence,
which must be objectively justifiable.
[28]
The jurisdictional pillars for reliance on
Section 40(1)(b)
of the
Criminal Procedure Act, 51 of 1977
, have to be met by the
Defendant. The legal position regarding the justification of a
warrantless arrest in terms of
Section 40(1)(b)
of the
Criminal
Procedure Act, 51 of 1977
was stated as follows in
Duncan v
Minister of Law and Order
1986 (2) SA 805
(A) at 818G-H:-
"The so-called
jurisdictional facts which must exist before the power conferred by
s40(1)(b) of the present Act may be invoked,
are as follows:
1)
The arrestor must be a peace officer.
2)
He must entertain a suspicion.
3)
It must be a suspicion that the arrestee committed an offence
referred
to in Schedule 1 to
the Act (other than one particular offence).
4)
That suspicion must rest on reasonable grounds.
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 or not to exercise that
power (cf
HoigateMohammed v Puke
(1984) 1 All ER 1054
(HL)
1057
). No doubt the discretion must be properly exercised. But
the grounds on which the exercise of such a 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. All that need be said for the purposes of the point
under
consideration is that an exercise of the discretion in question
will be clearly unlawful if the arrestor knowingly invokes the power
to arrest for a purpose not contemplated by the legislator. But in
such a case, as is generally the rule where the exercise of
a
discretion is questioned, the onus to establish the improper object
of the arrestor will rest on the arrestee (cf
Divisional
Commissioner of S A Police, Witwatersrand Area, and Others v S A
Associated Newspapers Ltd and Another
1966 (2) SA 502
(A) 512;
Groenewald v Minister van Justisie
1973 (3) SA 877
(A) 884
)"
[29]
In
Duncan v Minister of Law and Order
1986 (2) SA 806
(A) at
8140-E
, the following was held:-
"The test is not
whether a policeman believes he has reason to suspect, but whether on
an objective approach, he in fact has
reasonable grounds for his
suspicion."
[30]
In
Biyela v Minister of Pol-ice
2022 (1) SACR 235
(SCA) at para 34
- 35, Musi AJA
held as follows:-
"[33] The
question whether a peace officer reasonably suspects a person of
having committed an offence within the ambit of
s 40(1)(b) is
objectively justiciable. It must, at the outset, be emphasised that
the suspicion need not be based on information
that would
subsequently be admissible in a court of law.
[34]
The standard of a 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
arrest harboured a reasonable suspicion that the arrested
person committed a Schedule 1 offence." (footnotes omitted)
[31]
In the present matter, it is common cause that the Plaintiff was
arrested by a police officer.
The police officer entertained a
suspicion that the Plaintiff had committed an offence of rape of a
minor child which is in fact
an offence falling under Schedule 6 of
the
Criminal Procedure Act, 51 of 1977
and much higher than a
Schedule 1 offence.
[32]
From the evidence presented on behalf of the Defendant, it is clear
that the arresting officer
had reasonable grounds to affect a
warrantless arrest as envisaged in
Section 40(1)(b)
of the
Criminal
Procedure Act, 51 of 1977
. Captain Matabane testified that he has
been a police officer for 31 years. He is a detective Commander
stationed at Malipsdrift
Police Station. He received and perused the
docket and in particular the statement of the Complainant (Exhibit
"A").
The Complainant specifically mentioned the
perpetrator's name. The Plaintiff was also the Complainant's
neighbour and well known
to her.
[33]
Captain Matabane further testified that he then went to the
Complainant's home where they found
her and her mother. The
Complainant and her mother then accompanied Captain Matabane and
pointed out the suspect's home (Plaintiff’s),
as well as the
suspect (Plaintiff). He informed the Plaintiff of the allegations
against him and that he is being arrested on a
charge of rape, his
rights and arrested him.
[34]
Captain Matabane considered the severity of the offence, the age of
the Complainant, the fact
that the offence had occurred on a number
of times, the possibility that the Plaintiff could also commit the
offence towards other
children and posed a threat, as well as the
fact that the Plaintiff threatened the Complainant that if she told
anybody, he would
kill her. Captain Matabane also considered the fact
that the Plaintiff was well-known to the Complainant and that they
were in
fact neighbours.
[35]
In my view, Captain Matabane had a reasonable suspicion that the
Plaintiff had committed a Schedule
1 offence. His suspicion was based
on reasonable grounds and the arrest was therefore lawful. This
matter however does not end
here. The Plaintiff also claimed for
unlawful detention. In
Mvu v Minister of Safety and Security
2009
(6) SA 82
at 89F-G and further at 90A-D, Willis J
stated that
"there is an important distinction between the [arrest and
detention which is] not properly understood by many"
. Even
where an arrest is lawful, a police officer must apply his mind to
the arrestee's detention and the circumstances relating
thereto, and
"this includes applying his or her mind to the question of
whether detention is necessary at all". If the
officer fails to
do this, the detention is unlawful.
[36]
It was held by
Wallis J in Mvu v Minister of Safety and Security
supra
, that seen in this light, viewed objectively,
the arresting officer should have applied his mind to avoid detaining
the Plaintiff.
In the present matter, due to the nature of the
allegations and charge leveled against the Plaintiff, and having
considered evidence
of W/O Sibanda in relation to the confirmation by
the Doctor to him that the Complainant showed signs that she was
sexually penetrated,
as well as the confirmation by the forensic
social worker who confirmed that she was sexually violated, the
relationship between
the victim and the Plaintiff and close proximity
in which they lived from each other, the members of the Defendant
correctly applied
their minds and detained the Plaintiff. The
detention was therefore also not unlawful and the action stands to be
dismissed.
[37]
As a general rule, costs follow the result. There is no reason to
deviate in the present matter
from the general rule.
ORDER:
[38]
In the result, I therefore make the following order:-
1.
The action is dismissed.
2.
The Plaintiff is ordered to pay the Defendants' costs.
M.
NAUDE-ODENDAAL
JUDGE
OF THE HIGH COURT,
LIMPOPO
DIVISION,
POLOKWANE
APPEARANCES:
HEARD
ON
: 3
JUNE 2024
HEADS
OF ARGUMENT FILED
:
18 JUNE 2024
JUDGMENT
DELIVERED ON
:
13 NOVEMBER 2024.
This judgment was handed
down electronically by circulation to the parties' representatives by
email. The date and time for hand-down
of the judgment is deemed to
be
13 NOVEMBER 2024 at 14h00
FOR
THE PLAINTIFF
: Mr. MD.
MASHABELA
INSTRUCTED
BY
:
Mashabela Attorneys Inc.
Polokwane
rabbi@mashabelaattorneys.co.za
sikhanyiso@mashabelaattorneys.co.za
FOR
THE DEFENDANT
:
Adv. T.A. Masete
INSTRUCTED
BY
:
The
State Attorney: Polokwane
Tmasete@justice.gov.za