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 122
|
|
Mangala and Another v Minister of Police (2384/2020 ; 2385/2020) [2024] ZAECMKHC 122 (8 October 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)
Reportable
CASE
NO: 2384/2020
2385/2020
Matter heard on: 13
September 2024
Judgment
delivered on: 08 October 2024
In
the matter between:
SONGEZO
MANGALA
First Plaintiff
NTUTHUZELO
MANGALA
Second Plaintiff
and
MINISTER OF
POLICE
Defendant
JUDGMENT
BRODY
AJ:
The
facts
[1]
On Tuesday, the 21
st
of July 2020, during the COVID-19
pandemic lockdown, and at about 9h55, in broad daylight, a white
Toyota Avanza motor vehicle
parked on the side of a street in
Kwazakhele, (a township that surrounds New Brighton), Gqeberha.
[2]
Shortly thereafter and whilst the late Mr Siyabonga Wakula and the
late Mr Mputhumi
Notyepisi were having a conversation inside a garage
at 357A Nosidima Street, (near Mathew Goniwe hostel) two unidentified
men
with firearms shot both of them, multiple times.
[3]
The late Mr Siyabonga Wakula was a South African Police Services
member at Kabega
(“the deceased”).
[4]
Numerous witnesses heard the gunshots, and a number of witnesses saw
two unknown men
fleeing the scene, after the shooting, who then fled
in the white Toyota Avanza. The one suspect was described as being
much taller
than the other.
[5]
A witness recorded the registration number of the white Toyota Avanza
as being C[…].
[6]
After the suspects fled the scene Mr Vusumzi Notyephisi went to
assist the severely
injured men by transporting them initially to the
Mercantile Hospital in Gqeberha. At the time they were both still
alive.
[7]
While transporting them, and on enquiry, the deceased did not answer
Mr Notyephisi
and the other deceased advised him that it was “Songezo
and Ntuthuzelo Mangala.”
[8]
Mr Notyephisi was also advised that “the two Mangala brothers”
were from
Xhongorha Administrative Area, Kwasabe. This is an
administrative area which is approximately 51 kilometres west of
Mthatha, close
to the R61 national road.
[9]
Shortly after the second deceased’s dying declaration both men
tragically died
of their wounds.
[10]
A postmortem subsequently found that both had died of their injuries
and these were described
as “complications following gunshot
wounds to the body, with subsequent intra-abdominal sepsis and
surgery and anaesthesia
performed… Multiple gunshot wounds to
the body.”
[11]
When the South African Police Services were called to the scene and
inspected the scene, they
discovered nine MT cartages at the scene
and another six MT cartages with “six projectiles”.
[12]
Statements were taken from various witnesses, and these formed the
subject matter of the docket
for the investigation of the murders of
the deceased and the other victim.
[13]
Warrant Officer Shane Kuhn (“WO Kuhn”) was appointed to
investigate the dual murders
and he immediately began investigations.
[14]
On investigating the registration number given by the one witness,
namely C[…] he ascertained
that this belonged to an old lady
in Durbanville, Cape Town, and was in fact an Opel vehicle.
[15]
After further investigation he obtained the identity numbers of Mr
Nthuthuselo Mangala and Mr
Songeso Mangala and established that they
had several vehicles registered in their names. Several of these
vehicles were Toyota
Avanza’s and were being used as “taxis”
in the Cape Town area.
[16]
He also established that the vehicles belonging to both Mr
Nthuthuselo Mangala and Mr Songeso
Mangala had trackers fitted to
them and the responsible company, Cartrack, could not place any of
the vehicles at the scene of
the crime in Gqeberha, on the date of
the shootings.
[17]
On the 31
st
of July 2020 WO Kuhn was contacted by a South
African Police official with information that an informant in
Xhongora had advised
the police that the two suspects, from Cape
Town, were in the Eastern Cape, and were armed. The further
information was that they
were driving a white Toyota Avanza with
registration number C[…].
[18]
After further investigation he ascertained that this vehicle was
owned by Mr Songeso Mangala
and according to the informant, this was
the vehicle allegedly utilised in Gqeberha.
[19]
At the time, South Africa was experiencing the COVID-19 lockdown and
WO Kuhn then went to the
various COVID-19 roadblocks to ascertain
whether the suspect vehicle had been registered as passing through
between Cape Town and
the Eastern Cape. This did not reveal anything,
however, the COVID-19 roadblocks were not on every road in the
Eastern Cape, at
the time, between Cape Town and Gqeberha.
[20]
WO Kuhn then established that the two suspects were brothers and were
from Cape Town.
[21]
After investigation of various cameras at the scene of the shooting,
it was impossible to identify
the suspects given the poor quality of
the video footage.
[22]
According to a South African Police Service Criminal Record System
Profile Report Mr Nthuthuselo
Mangala had an endorsement for “murder”
on the 30
th
of November 2014 and “Arms and
Ammunition Act” for the 3
rd
of July 2019. Although
this was not conclusive evidence of convictions for those offences,
it did indicate that Mr Nthuthuselo
Mangala was implicated in the
offences of murder and arms and ammunition.
[23]
On the 31
st
of July 2020 an informant advised WO Kuhn that
he was aware of the whereabouts of the two suspects.
[24]
On Saturday, the 1
st
of August 2020, at midday, Crime
Intelligence advised members of the South African Police Services in
Queenstown that a white Avanza
with registration number C[…]
was travelling towards Queenstown and that the suspects were in the
motor vehicle, and were
in possession of a firearm. Crime
Intelligence indicated that they wanted the vehicle stopped and
searched.
[25]
WO Pitt (WO Pitt”) together with Constable Nteteleli Katu
(“Constable Katu”),
together with the Canine Unit, the
Flying Squad, and the Organised Crime Component (“OCC”)
arranged for a roadblock
on the N6 highway between East London and
Queenstown shortly after the information was received.
[26]
At approximately 14h30 the white Avanza motor vehicle was stopped and
the two suspects were identified
as Mr Songeso Mangala and Mr
Nthuthuselo Mangala. Mr Songeso Mangala was the driver at the time
and the owner of the motor vehicle.
[27]
The vehicle was searched with the use of latex gloves and eventually
a firearm, and fourteen
live rounds in the magazine, was found in one
of the panels of the boot area, which was hidden. This was a 9mm
pistol, namely,
a Sarsilmas, and its serial number had been
unlawfully filed off.
[28]
The suspects were questioned as to who the owner was of the unlawful
firearm, and both denied
that they were the owners of the firearm, or
had anything to do with the firearm.
[29]
Constable Katu then placed both suspects under arrest for possession
of a firearm and the ammunition.
Both suspects were then taken to the
Queenstown Police Station and placed under detention. The necessary
docket was opened and
WO Kuhn then received a telephone call from
Brigadier Govender of the provincial office to advise him of the
arrest of the two
suspects. Brigadier Govender had conveyed to WO
Kuhn that a 9mm pistol had been found in the suspects’
possession and that
a docket had been opened under case number
CAS5/8/20. WO Kuhn was instructed by Brigadier Govender to proceed to
Queenstown and
investigate further.
[30]
WO Kuhn then travelled to Queenstown and took possession of the
unlawful firearm and detained
the suspects. He then arranged for them
to be transported to the Mount Road Police Station at Gqeberha.
[31]
WO Kuhn’s superior, Captain Rhynholdt Swanepoel (“Captain
Swanepoel”), at 14h30
on the 2
nd
of August 2020 read
the suspects their rights and advised them that they were being
investigated for the alleged offence of:
“
Murder and
attempted murder at Nosidima street, Mathew Goniwe Hostel, on 21 July
2020 at ±09:35”
[32]
Captain Swanepoel was assisted by an interpreter. Mr Nthuthuselo
Mangala then gave the following
statement:
“
I do not know
anything about this case against me. I was never in my life in Port
Elizabeth. I did not even drove through Port Elizabeth
at any stage
of my life. It is now the first time ever to be in Port Elizabeth. I
grew up in Xhongorha AE and went to Cape Town
in 2016 to go and work
there as a taxi driver. Myself and Songezo Mangala, and Annebongo –
do not know her surname but she
is my girlfriend and my sister, Sarah
Mangala left Cape Town on Wednesday, 29 July 2020 at ± 05:00.
We drove in Songezo’s
Avanza and went to my hometown to attend
a ceremony at my uncle who passed away. It was the second time in
July 2020 that I went
to my hometown in Xhongorha on that occasion. I
was driving Songezo’s Quantum. Songezo also drove with me but
in his white
Avanza. We left Cape Town on the 2
nd
of July
2020 as my brother Luwanda Gqolozo was shot dead at my hometown. The
funeral was the Saturday and we all returned on the
Monday in Cape
Town.
On the Tuesday, 28 July
2020 before we left Cape Town I bought myself an illegal firearm, the
suspect is warned that he is to make
himself guilty to a crime as he
is telling this to an officer in the SAPS.
The suspect is informed
as follows:
Q.
Do you know its illegal to buy an illegal firearm
A.
Yes
Q.
Why did you buy it?
A.
To protect myself as I was robbed before and there was shot at my
vehicle
Q.
Do you still want to continue even now that you know that you are
going to incriminate
yourself in a crime of illegal possession of a
firearm
A.
Yes I want to continue.
I
bought the firearm for R800.00 from Tivila, a guy I saw 3 times. I do
not know where he stays nor do I know his surname. I decided
to take
it with me to my hometown as I do not have a place to leave it at my
home. Songezo does not know about the gun. We attended
the ceremony
on Friday and returned to Cape Town on Saturday. We were stopped at
Queenstown and me and my brother were arrested
when we travel between
my hometown and Cape Town, we drove through Queenstown, Tarkastad,
Cradock, Graaff-Reinet, Beaufort West,
Prince Albert to Cape Town.
That’s all I can say about this incident. My brother did not
know about the firearm it was found
in the vehicle as is.”
[33]
This statement was signed under oath with the assistance of an
interpreter and in the presence
of Captain Swanepoel. Mr Nthuthuselo
Mangala also confirmed that the statement had been read by him and
that it was a true and
correct version of the interview conducted
with Captain Swanepoel. The interpreter also signed the statement.
[34]
Mr Songezo Mangala was also cautioned that he was a suspect in the
murders, however, he declined
to give a statement and stated only
that “Mr Nqakumbana will be my lawyer” and “I will
talk in court”.
[35]
The ballistics results for the illegal firearm were received and
these indicated that the illegal
firearm found in the possession of
the suspects was not the firearm utilised to murder the two deceased.
[36]
On the first available court date the suspects were taken to appear
in court and the matter was
postponed.
[37]
On the 7
th
of August 2020 an instruction was received from
advocate Swanepoel (no family of Captain Swanepoel) to provisionally
withdraw the
charges against the suspects.
[38]
The charges were then withdrawn, and the accused were released from
custody.
The Pleadings
[39]
On the 5
th
of November 2020 Mr Songezo Mangala instituted
action against the Minister of Police in case number 2384/2020 and Mr
Nthuthuzelo
Mangala instituted an action against the Minister of
Police on the 5
th
of November 2020 in case number
2385/2020.
[40]
Songezo Mangala’s claim was based on a wrongful and unlawful
arrest and a wrongful and
unlawful detention, and his claim was for
R750 000.00 together with interest and costs.
[41]
Mr Nthuthuzelo Mangala’s claim was also for a wrongful and
unlawful arrest and a wrongful
and unlawful detention in the sum of
R750 000.00 plus interest and legal costs.
[42]
Both matters were subsequently consolidated and after an initial
plea, the defendant served and
filed an amended plea on the 19
th
of October 2023.
[43]
The defendant’s plea was essentially that the arrest on 1
August 2020 on the N6 near Queenstown
was lawful in terms of section
40(1)(b) of the Criminal Procedure Act 51 of 1977 (“CPA”).
The plea went further to
state that the plaintiffs “were
suspect in a murder involving a firearm that occurred on 21 July
2020…”.
[44]
The plea went further to state that the plaintiffs were further
arrested on 1 August 2020, “and
booked-out at the Queenstown
Police Station by Warrant Officer Khan, a police officer, on a
reasonable suspicion that they committed
a schedule 1 offence,
namely, murder involving a firearm on 21 July 2020.”
[45]
The plea also stated that “the reasonable suspicion held by
Warrant Officer Kahn was based
on reasonable grounds that the
plaintiffs had been identified as suspects in the commission of the
abovementioned murder and was
fortified by the recovery of the
unlicenced firearm and ammunition in the possession of the plaintiffs
immediately prior to their
initial arrest.”
[46]
It was common cause on the pleadings that the plaintiffs were
detained for a period of seven
days from the 1
st
of August
2020 to the 7
th
of August 2020.
[47]
The plea went further to state that the plaintiffs were brought
before a lower court within the
requisite “48 hours, on 03
August 2020.”
[48]
In the rule 37 minute the parties could not agree on the duty to
begin and this court was required
to determine that at the outset of
the trial.
[49]
There was a further amendment to the plea and a replication was
served and filed shortly before
the trial which took issue with the
amended plea in material respects.
[50]
The amended plea, however, alleged that the “first arrest”
was in terms of section
40(1)(b) of the Act and so too was the
“second arrest”.
[51]
After hearing argument at the commencement of the trial I ruled that
the defendant had the duty
to begin, and the onus, and directed that
the defendant should commence with giving evidence.
The Evidence
[52]
Warrant Officer Pitt (“WO Pitt”) was called by the
defendant and testified that he
had been employed for twenty-seven
years by the South African Police Services as a reservist and on a
voluntary basis. He testified
that a roadblock was established on the
1
st
of August 2020, at midday, after information had been
received from Crime Intelligence involving a white Avanza with Cape
Town
number plates, (C[…]) and was occupied by two persons,
and who were in possession of an unlawful firearm.
[53]
He further testified that he was accompanied by Constable Katu, the
Canine Unit, the Flying Squad,
and OCC.
[54]
At approximately 14h30 the suspect vehicle was stopped after the
traffic had been diverted and
Mr Songezo Mangala, together with his
brother, Mr Nthuthuzelo Mangala, were identified, after which the
motor vehicle was searched.
[55]
According to him Constable Katu used gloves and searched the motor
vehicle and eventually found
a firearm on the righthand side of the
motor vehicle.
[56]
The driver of the motor vehicle, Mr Songezo Mangala, was asked to
produce a firearm licence,
which he could not. When asked who the
firearm belonged to, both Mr Songezo Mangala and Mr Nthuthuzelo
Mangala denied that they
knew anything of the firearm. It was then
noticed that the firearm’s reference number had been filed off
and there was now
no doubt that the firearm was illegal.
[57]
The firearm was placed in a plastic bag for fingerprinting and
ballistic tests and fourteen live
rounds of ammunition were found in
a magazine of the firearm.
[58]
Constable Katu then placed them under arrest for possession of a
firearm and the ammunition and
without the necessary licence.
[59]
The two suspects were then taken to the police station in Queenstown
after which a docket was
opened.
[60]
In evidence, it became clear that Mr Songezo Mangala, the brother of
Mr Nthuthuzelo Mangala,
and a co-plaintiff, had passed away before
the trial and that the trial only proceeded in respect of Mr
Nthuthuzelo Mangala. The
evidence was that Mr Songezo Mangala was the
owner of the motor vehicle, and the driver, while Mr Nthuthuzelo
Mangala (“the
plaintiff”) was a passenger.
[61]
Mr Badli vigorously cross-examined WO Pitt as to whether there was
indeed a roadblock or a diversion
of motor vehicles. Nothing turned
on this as WO Pitt indicated that the roadblock was set up as a
result of the information received
about the suspects and the
firearm. What was established in the cross-examination was that the
police officials at the roadblock,
including WO Pitt, did not rely on
any reasonable suspicion of a murder having taken place, and only
relied on the information
given to them from the Crime Intelligence
officials, that there were suspects in a white Avanza with
registration numbers C[…],
that had an illegal firearm. Much
was also made of how the plaintiff was arrested and why WO Pitt did
not enquire about the plaintiff
after he had handed over the
plaintiff to the officials at the police station. This too is of no
moment as it is not relevant to
any triable issue between the
parties.
[62]
I found WO Pitt to be a reliable and good witness, who was not shaken
under cross-examination.
He did confirm that neither of the
occupants of the motor vehicle, including the plaintiff, confirmed
that they knew anything
about the illegal firearm which was
eventually found.
[63]
Constable Katu was then called as the next witness, and he
essentially confirmed the evidence
given by WO Pitt. He also
testified that both the occupants were afforded an opportunity of
seeing the firearm before it was put
away for ballistic testing and
that neither of them could give an explanation for the firearm.
[64]
He further confirmed that the firearm and ammunition was handed in at
the Queenstown Police Station
and that the SAP14 form was read to
both the suspects.
[65]
He also testified that it is important for a firearm to have a serial
number so that the authorities
can identify the owner of the firearm,
failing which, it is unidentifiable. Mr Badli once again vigorously
cross-examined Constable
Katu and dealt with issues such as the
roadblock, and reasonable suspicion, and why Constable Katu did not
enquire about the accused
after they were handed over to the police
officials in Queenstown.
[66]
At no stage did Mr Badli put to any of the two witnesses that the
firearm was not found in the
panel of the motor vehicle, or that it
had been planted by a police official. In other words, it was common
cause, that the firearm
was found in the panel of the motor vehicle,
with the ammunition, however, it was not common cause as to who was
the owner of the
firearm and who was in possession of the firearm.
[67]
In re-examination by Ms Sidlai, Constable Katu testified that the
occupants of the motor vehicle
were unknown to him before the
roadblock and that the accused’s rights were read to them.
[68]
In questions put to him by this court, Constable Katu confirmed that
the vehicle in question
was a white Toyota Avanza, with four doors,
and that the illegal firearm and ammunition were found in the
hatchback panel, (as
confirmed by WO Pitt). Constable Katu was
an impressive witness and his testimony was consistent.
[69]
The next witness to be called on behalf of the defendant was WO Kuhn
who confirmed that he was
the detective in charge of the murder
investigation and the Director of Priority Crimes Investigative Unit
in Gqeberha. He further
confirmed that he had thirty-six years of
experience and was in possession of the docket, including all the
statements taken from
the eyewitnesses, (including the dying
declaration).
[70]
He confirmed that he had perused the video footage at the scene of
the crime and it was impossible
to determine who the suspects in fact
were from this footage.
[71]
He followed up on the identity numbers of Mr Songezi Mangala, and the
plaintiff, and from this
he was able to ascertain that both had
numerous vehicles in the Western Cape.
[72]
He further confirmed that he had checked all the COVID-19 roadblocks,
and the white Toyota Avanza
was not recorded, with Mr Songezi Mangala
as a driver, at any of those roadblocks. His further testimony was
that this was not
proof that they had not travelled from Cape Town to
the Eastern Cape as every entry road was not controlled at the time.
[73]
In fact, it was common cause in this matter after all the witnesses
were called that Mr Songezi
Mangala and the plaintiff did in fact
travel from Cape Town to the Eastern Cape for a ceremony and a
funeral, during the relevant
period.
[74]
When he went on to the police systems, he discovered that the
plaintiff was involved in a “murder”
and an offence
involving “ammunition”.
[75]
He also established that Mr Songezi Mangala’s motor vehicles
all had trackers installed
and after investigating the issue with
Tracker there was no evidence that any of the vehicles, fitted with a
tracker, had in fact
gone to Gqeberha on the day of the murders.
[76]
He confirmed that his superior was Captain Swanepoel and that he
worked with Captain Swanepoel
during the investigation and especially
when he was required to travel to Queenstown to arrange transport for
the accused back
to Mount Road Police Station in Gqeberha.
[77]
He testified that he had received a telephone call from Brigadier
Govender of the provincial
office to advise that the accused had been
arrested at a roadblock in Queenstown and that they were found in
possession of an illegal
firearm.
[78]
He further testified that he then travelled to Queenstown, with
Captain Swanepoel’s permission,
to arrest the accused and
arrange for their transport to Mount Road Police Station in Gqeberha.
[79]
His further evidence was that he was present when the warning
statement was given by Captain
Swanepoel to the accused and that the
plaintiff willingly and without any duress made the statement, as
summarised above. This
formed part of the docket and was given freely
and voluntary by the plaintiff.
[80]
He further testified that after ballistic tests it was ascertained
that the illegal firearm was
not the firearm utilised to murder the
deceased’s and that after the initial appearance in the
Magistrate’s Court,
and on the instructions of advocate
Swanepoel of the NPA, charges were withdrawn against the two accused.
[81]
Mr Badli cross-examined WO Kuhn extensively and most of the
cross-examination was in regard to
whether WO Kuhn in fact
transported the plaintiff to Gqeberha, or not.
[82]
There was also extensive cross-examination about whether a case
docket had been opened in Queenstown
and another in Gqeberha.
[83]
It was also put to WO Kuhn that the plaintiff’s statement was
given under duress as he
was “beaten” repeatedly by the
South African Police Services before he gave the statement. This
evidence was never
pleaded in the plaintiff’s particulars of
claim and will be dealt with more fully below.
[84]
As with the previous witnesses for the defendant, WO Kuhn was
cross-examined at length about
the status of the Queenstown matter
and why this had not been followed up.
[85]
What was put to WO Kuhn was that the reasonable suspicion in the
second arrest was the unlawful
firearm and the dying declaration. WO
Kuhn gave full reasons why the charges were probably withdrawn
against the plaintiff as the
late Mr Songezo Mangala’s motor
vehicle could not be placed at the scene of the murders and also the
ballistic results indicated
that the illegal firearm found was not
the murder weapon.
[86]
WO Kuhn also confirmed that the number plate seen on the suspect
vehicle in Gqeberha belonged
to an old lady in Durbanville, Cape
Town, and was not a number plate relevant to the Mangala brothers. WO
Kuhn demonstrated remarkable
credibility and reliability. His
testimony was clear, consistent, and delivered with a calm demeanour,
showing no signs of hesitation,
or evasion. His attention to detail
and straightforward responses under both direct and cross-examination
were particularly impressive,
further reinforcing his trustworthiness
in the eyes of this court.
[87]
The defendant then closed its case and immediately thereafter the
plaintiff brought an application
for “absolution from the
instance”, in favour of the plaintiff.
Absolution from the
instance
[88]
Mr Badli argued that the defendant had not discharged the burden of
proof and that therefore
absolution was relevant. He argued that
there was no
prima facie
case, on the defendant’s
evidence, for an arrest and that there was no reasonable suspicion at
the time when the arrests
occurred.
[89]
During argument, and when it was put to Mr Badli that the plaintiff’s
particulars of claim
relied only on one arrest, instead of two, he
brought an application to amend the plaintiff’s particulars of
claim to make
reference to two arrests.
[90]
After argument, a ruling was given that the plaintiff could amend his
particulars of claim to
make reference to two arrests as the evidence
up to that point in the trial was conducted by both parties as if
there were two
arrests. This was in fact put to the witnesses by both
Mr Badli and Ms Sidlai.
[91]
The absolution argument then continued, and Ms Sidlai argued against
absolution being granted.
[92]
After an adjournment, I handed down an
ex tempore
judgment,
dismissing the application for absolution and the reasons for my
decision are contained in that judgment.
The Plaintiff’s
evidence
[93]
The plaintiff then elected not to close his case and to lead
evidence. The plaintiff gave evidence
personally and gave extensive
detail in regard to the trip that he and the late Mr Songezo Mangala
had undertaken from Cape Town
to the funeral and also the subsequent
arrests by the South African Police Services.
[94]
The plaintiff’s evidence was that they did not see a firearm,
however, that they were stopped
at a roadblock near Queenstown and a
firearm was then retrieved from the back of the white Toyota Avanza.
[95]
Although the plaintiff essentially corroborated the defendant’s
witnesses in regard to
the two arrests, he gave contradictory
evidence of how he was arrested and also alleged that he was severely
tortured in Komani
(Queenstown) by members of the South African
Police Services, and then again at Gqeberha. These allegations
related to an assault
with a police baton, teargas, and suffocation.
To the point where, after the second arrest, in Gqeberha, the
plaintiff became unconscious.
None of the allegations of torture and
physical assaults were pleaded in the plaintiff’s case although
the plaintiff testified
that these facts were given to his attorneys,
prior to the issue of summons.
[96]
After cross-examination by Ms Sidlai the plaintiff confirmed that an
illegal firearm, with ammunition,
was in fact found in the late Mr
Songezo Mangala’s motor vehicle, however, alleged that neither
of them knew anything about
this illegal firearm.
[97]
Under cross-examination the plaintiff could give no valid reason why
his attorneys would not
plead the vicious torture and assaults that
he alleged had occurred, the details of which, he had conveyed to
them prior to the
issue of summons. In fact, his evidence went
further under cross-examination to the extent that it was also the
late Mr Songezo
Mangala that was allegedly tortured and assaulted by
the South African Police Services.
[98]
Under cross-examination he confirmed that he and his brother had
grown up in Xhongorha Administrative
Area and that they were in the
Eastern Cape for the funeral during the lockdown period.
[99]
The plaintiff could also give no reason why the dying declaration was
given and especially, as
the allegation was accurate in regard to the
plaintiff’s names, and that of his brother, and also the area
where they came
from.
[100] In
answer to questions put by this court, the plaintiff confirmed that
the trip from Cape Town to the funeral
took a few days and that the
plaintiff did not know the deceased, and the other victim. When asked
when his brother left Cape Town,
he could not recall the exact date.
[101] The
plaintiff also testified that the manner in which he and his brother
were able to get through the COVID-19
roadblocks was as a direct
result of them being in possession of a permit to attend a funeral.
[102] The
plaintiff also testified that his brother was much taller than him
and that there was no reason why anyone
would mention them in a dying
declaration. He could give no explanation for this.
[103] The
plaintiff then closed his case without calling any further evidence.
[104] The
plaintiff’s evidence proved to be unreliable as he frequently
strayed beyond the scope of the pleaded
case by introducing numerous
exaggerations that were never pleaded by his attorney, or supported
by the facts. The plaintiff’s
tendency to embellish details
further undermined his credibility, casting doubt on the reliability
of his account of events.
The amendment by
the Defendant
[105] During
argument the defendant brought an application to amend its plea by
referring to the first arrest as an
arrest in terms of section
40(1)(a) of the CPA.
[106] Mr
Badli opposed the application on the basis that this would be highly
prejudicial to the plaintiff and after
hearing argument the matter
was adjourned.
[107] I then
ruled that the amendment could be brought and on the understanding
that the plaintiff could re-open his
case if he believed there was
any prejudice. An
ex tempore
judgment was given and I do not
intend repeating what is stated in that judgment.
[108]
Argument then continued and Mr Badli elected not to re-open his case,
which then finalised the argument on behalf
of both parties.
[109] After
argument I requested both parties to furnish me with short heads on
the Firearms Act and what the consequences
are of a person being
found in possession of an illegal firearm, (relevant to the facts of
this matter).
[110] I am
grateful to both counsel for their extensive argument and the copies
of the judgments handed in, in support
of both their arguments.
The applicable
legal principles
[111] Section
40(1)(a) of the CPA provides that a police officer may, without a
warrant, arrest any person:
“
(a)
Who commits or attempts to commit any offence in his presence.”
[112] This
section accordingly allows police officials to take immediate action
when they personally witness a crime
being committed, without needing
prior judicial authorisation in the form of a warrant.
[113] Section
40(1)(b) of the CPA allows police officers to arrest a person without
a warrant:
“
(b)
Whom he reasonably suspects of having committed an offence referred
to in schedule 1, other than
the offence of escaping from lawful
custody.”
[114] This
section grants police officials the power to make an arrest if they
have a reasonable suspicion that a person
has committed a serious
offence listed in schedule 1 of the Act. Schedule 1 offences include
serious crimes such as murder, rape,
robbery, and assault with
intention to do grievous bodily harm, amongst others.
[115] The
defendant pleaded that both arrests were lawful in terms of section
40(1)(a) and section 40(1)(b) of the CPA.
[116] Section
12(1)(a) of the Constitution enshrines the right to freedom and
security of a person, which includes the
right not to be deprived of
freedom arbitrarily, or without just cause.
[117] Where
it is alleged that a plaintiff has been unlawfully detained, the
defendant bears the burden to justify the
depravation of liberty
[1]
[118] Section
205(3) of the Constitution provides:
“
The objects of the
police service are to prevent, combat and investigate crime, to
maintain public order, to protect and secure
the inhabitants of a
republic and their property, and to uphold and enforce the law.”
[119] The
jurisdictional facts for a section 40(1)(b) defence are that (i) the
arrestor must be a police officer; (ii)
the arrestor must entertain a
suspicion; (iii) the suspicion must be that the suspect (the
arrestee) committed an offence referred
to in schedule 1; and (iv)
the suspicion must rest on reasonable grounds
[2]
[120] In
Dunkin vs Minister of Law and Order
[1986] ZASCA 24
;
(1986) 2 All SA 241(a)
at 243 the
court found:
“
The question
whether a police officer “reasonably suspects” a person
of having committed an offence within the ambit
of section 40(1)(b)
of the Act is objectively justifiable. And it seems clear that the
test is not whether a policeman believes
that he has reason to
suspect, but whether, on an objective approach, he in fact has
reasonable grounds for his suspicion.”
[121] There
can be no doubt that the test for reasonable suspicion is an
objective one, which requires reasonable suspicion,
but not
certainty. The suspicion must be based on factual grounds relevant to
the arrest.
[122] Section
50 of the CPA deals with the detention of an arrested person as
follows:
“
(1)(a) Any person
who is arrested with or without warrant for legally 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 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) is 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 or 59A,
he or she shall be
brought before a lower court as soon as reasonably possible, but not
later than 48 hours after the arrest.”
[123] Section
50 of the CPA allows the police to lawfully detain an arrested person
for a period not exceeding 48 hours
before bringing him/her before a
court or releasing him.
[3]
[124] The
defendant has relied on section 40(1)(a) in regard to the first
arrest of the plaintiff at Komani on the 1
st
of August
2020. Both WO Pitt and Constable Katu were informed by Crime
Intelligence that a white Avanza with registration number
C[…]
was travelling towards Queenstown and that there were two suspects in
the motor vehicle, who were in possession of
a firearm.
[125] At the
roadblock set up by the police officials on that day, the plaintiff,
and his brother, were in fact in a
white Avanza, with the CA
registration number, and after a diligent search, an illegal firearm
was found in the back panel of the
suspect motor vehicle, with rounds
of ammunition.
[126] When
both the plaintiff and his brother were asked about the firearm they
denied any knowledge of the firearm.
[127] This
arrest is on “all fours” with the matter of the Minister
of Police vs Shawn Bosman and Others
[2021] ZASCA172 where Saldulker
(the acting Deputy President of the SCA at the time) stated the
following:
“
[6]
Goeda testified that he questioned the respondents at the scene of
the arrest, but none
of the respondents “owned up” to
possessing the firearm. He decided to arrest all respondents for
further investigation
and because of the fact that a firearm was
found.”
and further:
“
[15]
The respondents were questioned on the scene about the firearm and
they all denied any knowledge thereof.
It was reasonable in the
circumstances to suspect that one of the respondents, including Ms
Claasen, the fourth respondent who
was 16 years old, a minor, and who
was an occupant in the bakkie, was involved in the shooting incident
and that they had possessed
an illegal firearm and ammunition.”
[128]
Objectively considered, and taking into account that Crime
Intelligence had informed Constable Katu, (and WO Pitt)
that suspects
were travelling in a white Avanza and were in possession of a
firearm, the necessary roadblock was a reasonable precautionary
step
to take by the officials of the defendant in combatting crime. Once
the firearm was found, and which had its identification
numbers filed
off, with fourteen live rounds of ammunition in the magazine, an
offence was committed in terms of section 40(1)(a),
namely, in the
presence of a police official. After questioning the plaintiff, and
his brother, in circumstances where his brother
was the owner and
driver of the motor vehicle, and after denials by both the plaintiff
and his brother that they knew nothing about
the illegal firearm, and
ammunition, Constable Katu had the necessary right to arrest both the
plaintiff and his brother. In view
of this, the jurisdictional facts
for the arrest of the plaintiff in terms of section 40(1)(a) of the
CPA was present. Constable
Katu had a discretion which, in my view,
was properly exercised, in good faith, and rationally.
[129] The
apprehension of the plaintiff and his brother in terms of
section 50
of the
Criminal Procedure Act, for
the reasons set out in this
judgment, was also lawful.
[130] In
regard to the second arrest, it is clear that a second docket was
opened in respect of the murder charges,
and where both the
plaintiff, and his brother, were clearly implicated. In the
docket, the following facts are relevant:
[130.1]
the dying declaration gave the full names of the plaintiff
and his
brother;
[130.2]
the dying declaration mentioned accurately where the deceased,
and
his brother, came from, namely, Xhongora near Mthatha;
[130.3]
the plaintiff, and his brother, were travelling in a white
Toyota
Avanza, which belonged to the plaintiff’s brother;
[130.4]
the plaintiff and his brother were found in possession
of a firearm
which was illegal, together with ammunition.
[131] WO Kuhn
testified, in chief, and under cross-examination, that the dying
declaration together with the possession
of the illegal firearm were
the main reasons why he had reasonable suspicion that the plaintiff
was implicated in the murders of
the deceased.
[132] Other
factors in the docket also pointed to the plaintiff as one of the
assailants in the murders, namely:
[132.1]
they were in the Eastern Cape during the period of the
COVID-19
lockdown;
[132.2]
they had travelled from Cape Town to the Eastern Cape for
the
ceremony;
[132.3]
the plaintiff was previously implicated in a murder and
of being in
possession of ammunition;
[132.4]
the plaintiff’s brother was much taller than him,
as testified
by witnesses at the scene of the murders; and
[132.5]
the false number plate on the motor vehicle utilised by
the
assailants was from an area in Cape Town, where the plaintiff and his
brother lived.
[133] In view
of the aforesaid facts, I find that the jurisdictional facts for the
“second” arrest of the
plaintiff in terms of
section
40(1)(b)
of the CPA was present and that a discretion arose. This
discretion was on a conspectus of all the evidence in the docket, and
the arrest of the plaintiff in Komani, in my view, was properly
exercised, in good faith, rationally and not arbitrarily.
[4]
[134] In
addition to the above, the plaintiff gave a sworn statement
confirming his purchased possession of an illegal
firearm, (as set
out in the facts above), and I find that the plaintiff was brought to
a Magistrate’s Court in regard to
the second arrest as soon as
possible by WO Kuhn.
[135] I agree
with Ms Sidlai that the decisions to arrest and detain the plaintiff
could not, on the basis of the factual
circumstances be wrong or
inequitable. There was no evidence given whatsoever that the arrests,
or detentions of the plaintiff,
had an ulterior motive, and that the
arresting officers acted irrationally, or arbitrarily. The plaintiff
was released on the instructions
of advocate Swanepoel as soon as
possible and I find no
male fides
in detaining the plaintiff
for the periods referred to in the evidence.
[136]
Although the investigations by WO Kuhn indicated that the plaintiff
could not be placed at the scene of the murders,
nor could the
illegal firearm found in his possession, be linked to the murder
weapon, no criticism can be levelled against the
police officials for
arresting and detaining the plaintiff, and his brother. The docket
was sent to advocate Swanepoel to determine
whether there was
sufficient evidence to bring charges against the plaintiff and
immediately upon being advised by advocate Swanepoel
that the charges
should be provisionally withdrawn, the plaintiff and his brother were
released. Although the plaintiff was detained
for longer than 48
hours I find that the plaintiff was brought to the Magistrate’s
Court as soon as possible, given the intervening
weekend.
[137] I also
find that the conduct of the police was within lawful parameters of
detention as provided for in
section 50
of the CPA. There can be no
doubt that WO Kuhn, who was charged with the final investigation,
acted with alacrity and the required
sense of urgency after he was
instructed by advocate Swanepoel.
[138] The
finding by Saldulker J in the Minister of Police vs Shawn Bosman and
Others matter is apposite to this case:
“
[32]
Our constitutional dispensation has brought about a primacy on
individual human rights, particularly the
right not to be deprived of
freedom arbitrarily or without just cause. However, to place
unreasonable constraints on the SAPS would
hamper their law
enforcement functioning. Even though there may be circumstances where
criticism may justifiably be levelled against
the efficiency of the
SAPS, the SAPS ought to be allowed the proper scope to arrest, detain
and conduct necessary investigations,
all within the lawful bounds as
provided for by the legislature through,
inter alia
,
S50
of
the CPA. The police are thus in terms of the law entitled to arrest
and detain and release a person within 48 hours, as happened
in this
case.”
[139] No
reason was given by any witness as to why the charges, relating to
both arrests, were provisionally withdrawn
by the National
Prosecuting Authority (NPA). This court can only speculate that, in
the view of advocate Swanepoel, the ballistic
test and the dying
declaration meant that the proof of the murders was insurmountable.
The first arrest, however, relating to the
possession of the illegal
firearm, and ammunition, and based on the Minister of Police vs Shawn
Bosman authority appears to have
stronger prospects of success, than
the murders.
[140] The
facts given in this trial, and the evidence produced, raises the need
for the NPA to reassess the evidence
in regard to both arrests, and
the initial charges.
[141] In the
interests of justice, and in view of the horrific murders of the
deceased, as a police official, and the
other deceased, this court
will refer the matter to the NPA for reconsideration of a possible
prosecution.
[142] In the
result, the following order is made:
[1]
The plaintiff’s claims for the unlawful arrests and detention
are dismissed;
[2]
The plaintiff is ordered to pay the costs of the defendant on scale
A, as contemplated
by
rule 69
(7);
[3]
This matter is referred back to the National Prosecuting Authority in
Makhanda to
consider the evidence in the civil trial and to determine
whether it is in the interests of justice whether a criminal
prosecution
in terms of the
Criminal Procedure Act is
appropriate.
B.B.
BRODY
ACTING
JUDGE OF THE HIGH COURT
APPEARANCES:
Counsel
for the Plaintiff
: Adv.
Badli
Instructed
by
:
Netteltons Attorneys
High Street
MAKHANDA
Counsel
for the Defendant
: Adv.
Sidla
Instructed
by
: Zilwa
Attorneys
African Street
MAKHANDA
[1]
Zealand vs Minister for Justice and Constitutional Development and
Another [2008] ZACC3; 2008(6) BCLR 601(cc); 2008(2) SACR1
(cc);
2008(4) SA458(cc), paragraph 24
[2]
Minister of Safety & Security vs Sekhoto and Another (2010)
ZASCA 141; (2011) 2 All SA 157(SCA); (2011) 2 All SA 157 (SCA)
[3]
Minister of Safety and Security vs Sekhoto and Another supra at
paragraph 42
[4]
Duncan vs Minister of Law and Order 1986(2) SA 805(A) at 818G - H