(1)
(2)
(3) REPUBLIC Of SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION, POLO KW ANE
CASE NO: HCAA17 /2023
In the matter between:
BENECT MKHIZE APPELLANT
And
THE MINISTER OF POLICE RESPONDENT 1
2
JUDGEMENT
KGANYAGOJ
[1] On 17th January 2017 members of the South African Police Services (SAPS)
Mahwelereng received information that there was robbery at Gilead. In the
process of the attempted robbery, the robbers shot at the members of the
SAPS. The members of the SAPS Mahwelereng were given the description of
the motor vehicle of the alleged robbers. The members of the SAPS
Mahwelereng decided to patrol the N11 road from Lephalale. Whilst patrolling
they saw a vehicle that fits the description of the vehicle of the alleged robbers
and they stopped that vehicle with the intention of searching it. Inside the
vehicle there were four occupants including the appellant who were later all
arrested, detained and charged.
[2] The appellant together with the other occupants were criminally charged in the
regional court, and the appellant was with one count of unlawful possession of
a firearm, and one count of unlawful possession of ammunition. During the
criminal trial the State called four witnesses . All the accused including the
appellant were found not guilty and discharged at the close of the State case in
terms of section 174 of the Criminal Procedure Act.
[3] That led to the appellant instituting an action against the respondent claiming
damages of R450 000.00 for alleged unlawful arrest, R650 000.00 for alleged
unlawful detention, R600 000.00 for alleged malicious prosecution, and R800
000.00 for alleged unlawful and/or wrongful assault. According to the
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appellant's particulars of claim he was arrested without a warrant of arrest and
detained on charges of robbery with aggravating circumstances by members of
the SAPS whose further and better personal details were unknown to him, but
were stationed at Mahwelereng Police Station. When he was arrested he was
assaulted by the members of the SAPS who had effected arrest. He sustained
visible injuries as a result of the assault. On his first appearance in court the
appellant requested the presiding officer to order the police officers to take him
to hospital for medical attention.
[4] The prosecutors in the regional court preferred charges of illegal possession of
unlicensed firearm and possession of ammunition. At the time of arrest, the
police officers failed to explain the constitutional rights to the appellant. The
police officers told the appellant that he was arrested for robbery with
aggravating circumstances as he had refused to provide them with any
particulars of the alleged robbery. The police officers unreasonably neglected ,
failed and/or refused to conduct diligent preliminary investigation prior to
arresting the appellant. The police officers ignored the appellant's exculpatory
version.
[5] The respondent defended the appellant's action. The respondent in its plea
denied that the appellant was arrested and detained on charges of robbery with
aggravating circumstances , but for unlawful possession of an unlicensed
firearm and ammunition. The appellant was duly informed of the reasons for his
arrest, and his constitutional rights were explained to him. The respondent
denied that the appellant had requested to be taken for medical attention, but
that it was accused 2 who had requested. The respondent pleaded that the
arrest was lawful in that the appellant was found in possession of a firearm and
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ammunition without the required license to possess them. The respondent
denied that the members of the SAPS had assaulted the appellant at the time
of his arrest or at any time.
[6] The parties during the pre-trial conference agreed that both merits and quantum
will not be separated. However, the parties could not agree as to who had the
duty to begin. When the trial started it was the appellant who led the evidence
first and was the only witness to testify for his case. The respondent's counsel
indicated that she will be calling three witnesses, the first witness to testify about
the lawfulness of the arrest and detention. The second witness to testify about
the appellant's warning statement and third witness to testify with regard to the
appellant's prosecution.
[7] The appellant testified that on 17th January 2017 he was driving from Lephalale
where he had gone to do medical tests at Murray and Roberts after securing
employment. He was in the company of three people in the car he was driving.
He is staying in Johannesburg and was driving back home. When he left
Johannesburg to Lephalale he was in the company of Norman Mokgotsi, and
the other two occupants he found them hitchhiking on his way back from
Lephalale. He was driving a VW Polo.
[8] When he was about 15 to 20 kilometres to enter into Mokopane he was stopped
by the police officers. After he was stopped, the appellant and the other
occupants of his vehicle were instructed to alight from the vehicle and lie on the
ground, whilst been pointed at with big firearms. The police officers searched
the appellant's motor vehicle and found nothing. After the police finished
searching it, the police called the appellant as the driver of the vehicle. After
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that the police took the appellant and his company to Mahwelereng Police
Station.
[9] On arrival at the police station the police told the appellant and company that
they seem to be the people who were shooting at the police in Gilead. The
police officers at the police station phoned other police officers and told them
that they have found the suspects who were shooting at the police officers.
When other police officers arrived, they told the appellant and company that
they are going to tell them the truth of whether they are the people who had
shot at the police.
[1 O] The appellant and Mokgotsi were separated from the other two and taken to
different rooms. Whilst in that room, the police started assaulting the appellant
and Mokgotsi telling them that they should make confession that they know
about the shooting of the police officers. A plastic was put on the appellant's
face telling him that if he was ready to tell the truth he will shout. The police
assaulted the appellant on his ribs and body, but did not assault him on his
face. The police stopped assaulting them when Mokgotsi passed on himself.
The assault lasted for about 2 hours. After that the police officers who were
assaulting them left the room.
[11] After 15 minutes other police officers came to the room into which the appellant
was, and uncuffed them from their feet. The police officers took the appellant
and his three occupants to his Polo vehicle. On arrival at the Polo vehicle, the
police officers pointed to the appellant a firearm that was on top of the seat of
the Polo and told him that it was the firearm that was used at Gilead, and that
it belongs to him. A white police officer started assaulting the appellant and told
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him to admit that he knows about the incident in Gilead. He denied that the
firearm was his.
[12] After that they were locked in the police cells. Before the appellant was charged,
other police officers came to him and told him that Mr Mokgotsi had told them
that the firearm belongs to the appellant. The appellant stated that he thinks the
firearm was planted in his car. Initially the appellant was told that the firearm
was used during the shooting in Gilead, but later at the police station things
changed and the police officers told the appellant that he had confessed about
the firearm, but he knew nothing about the alleged confession. For the second
time the police put a plastic on his head, and the appellant told the police that
he was not going to admit something that he knew nothing about. He never
admitted that the firearm belonged to him, and thereafter he was taken back to
the cells. The appellant conceded that when he was arrested, he was detained
for possession of unlicensed firearm and possession of unlicensed ammunition .
When he made his first appearance in court, he was in serious pains but was
never taken for medical attention. The appellant was released on bail on 31 st
January 2017.
[13] The appellant was cross-examined and he stated that when the police were
searching the vehicle he was driving at the scene where they were stopped, he
and his company were lying on the ground about three metres from the car.
Later the police called him as the driver, and he saw them searching his car.
The appellant stated that inside the car the police found three bags which
belonged to him, Mr Mokgotsi and the two hitchhikers. The applicant stated that
the police had searched them first before they searched the car. The appellant
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further stated the police officers told them that they were arrested as they think
that they were at the robbery scene where police officers were shot at.
[14] It was put to the appellant by the respondent's counsel that the arresting officer
who had conducted the search will testify that he had searched the appellant's
car, and found a pistol and unlicensed ammunition under a mat by the driver's
seat, and the appellant responded by stating that he knew nothing about that.
The appellant further stated that the vehicle did not belong to him, but to his
girlfriend, the mother of his child and she had borrowed her the vehicle on the
10th January 2017 when he went to Lephalale. The appellant stated that when
he made his first appearance in court he had told the presiding magistrate that
the police had assaulted him, and he needed medical attention. The appellant
was referred to his warning statement in which it is stated that he did not deny
the allegations put against him that he was found in possession of an
unlicensed firearm and ammunition, and had also stated that he will explain
further in court. The appellant responded by stating that he did not remember
that part of the evidence as he was assaulted and confused.
[15] Under questions by the court when the appellant was asked about his warning
statement, he stated that he did not remember the statement well. The
appellant admitted that the names on the warning statement are his, but did not
know the signature appended at the bottom of the warning statement. The
appellant also stated that he did not remember warrant officer Melhu who had
allegedly taken the warning statement from him, but that he remembers the
investigating officer. The appellant also stated that he was interviewed by many
police officers. The appellant admitted some signatures that appears at the
bottom of the other pages of his warning statement, and stated that maybe he
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was traumatised and he just put his signature. That concluded the evidence of
the appellant and he closed his case.
[16] The respondent called Matsobane Justice Kekana as its only witness. He
testified that he is a police officer, colonel by rank and stationed at Mahwelereng
SAPS. On 17th January 2017 when he reported for duty, he found his
colleagues in the office talking about the shooting that took place in Gilead near
a shopping complex at Steilloop between the criminals and police officers. They
said some criminals managed to flee the scene using a Polo vehicle with GP
registration numbers, and grey in colour.
[17] They started looking for the vehicle fitting that description by stopping almost
every vehicle that was coming from the direction of Gilead. At last a Polo vehicle
that fit that description arrived and they stopped that vehicle at the vehicle check
point. The Polo that they have stopped had four occupants inside it. The police
officers introduced themselves to the occupants of the vehicle and asked for
permission from the driver to search the vehicle. The driver of the vehicle was
the appellant in this matter, and he gave them permission.
[18] They started searching the vehicle whilst the appellant was in their company
and was next to the witness. As they were searching the vehicle, the witness
saw that under the brakes of the vehicle, there was something swollen
underneath the car carpet. When the witness removed that carpet, he found a
firearm. The witness did not touch the firearm, they summoned the fingerprint
officers to the scene. Warrant officer Thantsha found some ammunition in the
pockets of one of the occupants of the Polo vehicle. He does not remember the
person who was found in possession of the ammunition, but he is certain that
he had seen him, and this person was a passenger in that vehicle.
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[19] When the fingerprints police officers arrived at the scene, they took the photos
of where the firearm was found. The fingerprints officers checked the type of
the firearm found, how many ammunitions it takes, and how many ammunitions
was found in the magazine. The ammunitions found were live rounds. The
witness asked the appellant as to whom the firearm belongs, and the appellant
told him that he did not know, and that the motor vehicle belonged to his
girlfriend. The appellant told the witness that he does not have a licence to
posses a firearm, and that is when he told the appellant that he was under arrest
for possession of a firearm and ammunition. He had also explained to the
appellant his constitutional rights, and he chose to remain silent.
[20] After that they took all the occupants of the Polo vehicle to the police station
along with their Polo vehicle. At the police station, they registered the firearm
as an exhibit in the SAP 13 book. From there the firearm was taken by the task
team from the province in order to send it for ballistic testing. The appellant was
detained for being found in possession of a firearm and ammunition without
possessing a license. It was explained to the appellant the reasons for his
detention. The appellant was also given a document containing his rights. The
witness denied that they have assaulted the appellant at any stage.
[21] The witness was cross-examined and he conceded that after the appellant gave
him an explanation that he knew npthing about the firearm and that the Polo
vehicle did not belong to him, the witness did not investigate that explanation,
but had arrested him on the basis that he was possession of the firearm. The
witness conceded that the firearm was not found on the appellant's personal
possession. The witness stated that because the firearm did not have a serial
number, there was no need to investigate . If the firearm had s serial number,
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he would have contacted the appellant's wife in order to investigate why she
left the firearm in the vehicle. According to the witness, the firearm did not
belong to the appellant's wife. The witness conceded that in the fingerprints
report for the fingerprints lifted from the firearm that was allegedly found in the
Polo vehicle, the appellant's fingerprints were not found.
[22) It was put to the witness that according to the police statement of police officer
Seanego, he (Seanego) is the one who had stopped the Polo vehicle. The
witness responded by stating that he was together with Seanego. It was further
put to the witness that according to the statement of Seanego, warrant officer
Thantsha found three RS rifle ammunition and eight 9mm pistol ammunition
inside the suspect's right back pocket trouser, and warrant officer Thantsha
arrested the suspect and read him his constitutional rights, and took him to
Mahwelereng police station. When the witness was asked how possible was it
that Thantsha who was at the scene was unable to see the firearm recovered,
the court a quo intervened and told counsel for the appellant to reserve that
question for Thantsha since the witness is not the author of the statement. The
witness stated that he is the one who had arrested the appellant.
[23] Counsel for the appellant wanted to cross-examine the witness about his written
police statement, and the court a quo reminded him to first lay the basis before
he could cross-examine him on his written police statement. The witness
conceded that in his written police statement , there is nowhere it has been
recorded that he is the one who had arrested the appellant, but that one page
of his statement was missing from the one been referred to by counsel for the
appellant. The witness conceded that the appellant was arrested without a
warrant of arrest.
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[24) After colonel Kekana had finished testifying, counsel for the respondent informed
the court a quo that she was having the last witness who was going to testify
about the appellant's warning statement. Counsel for the appellant emphasised
that it was important for that witness to be called to testify as he was still having
some questions he would like to put to that witness. After adjourning, when the
court a quo resumes counsel for the respondent informed the court a quo that
she was no longer calling her last in that the only issue was for the witness to
confirm the appellant's warning statement which was not in dispute. The
respondent closed its case.
[25) The court a quo has dismissed the appellant's claims in respect of unlawful
arrest and detention , and the claim for assault. With regard to the claim for
malicious prosecution, the court a quo has granted absolution from the
instance. The appellant is appealing against the judgment and order of the court
a quo with the leave of the Supreme Court of Appeal (SCA). The leave which
the SCA has granted is limited to orders (a) and (b) which are in respect of
unlawful arrest and detention , and assault.
[26) It is not in dispute that on 17th January 2017 the appellant was arrested by
members of the SAPS without a warrant of arrest. According to the appellant
he was arrested for alleged robbery with aggravating circumstances , whilst
according to the respondent, the appellant was arrested for alleged unlawful
possession of firearm and ammunition. The respondent disputes that the
appellant was at any stage during or after the arrest assaulted by members of
the SAPS. The respondent has pleaded that the arrest of the appellant was
lawful in that the arresting officers acted in terms of section 40(1) (b) of the
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Criminal Procedure Act1 (Act). Generally, an arrest and detention is prima facie
unlawful and wrongful, and it is for the respondent to prove the lawfulness of
the arrest and detention once these are admitted. (See Lomba v African
National Congress2).
[27] In terms of section 40( 1) (b) of the Act, a peace officer may without a warrant
arrest any person whom he suspects of having committed an offence referred
to in Schedule 1, other than the offence of escaping from lawful custody. It is
trite that the jurisdictional facts must exists before section 40(1 )(b) can be
invoked. Those jurisdiction factors are that the arrestor must be a peace officer,
he must entertain a suspicion , it must be a suspicion that the arrestee had
committed an offence referred to in Schedule 1 of the Act, and the suspicion
must rest on reasonable grounds. If the jurisdictional requirements are satisfied,
the peace officer may invoke the powers conferred by the section, i.e, he/she
arrests the suspect. (See Duncan v Minister of Law and Order3).
[28] Once the defendant relies on section 40(1 )(b) of the Act, the onus will be on the
defendant to prove that the arrest and detention were lawful. Section 40(1 )(b)
permits an arrest by a police officer without a warrant where the arrestor
reasonably suspects the arrestee of having committed an offence. The
arresting officer is required to do an investigation into the circumstances
relevant to the particular offence before he/she come to the conclusion that
there is a reasonable suspicion that an offence has been committed.
1 51 of 1977
2 2002 (5) SA 668 (SCA) at para 32
3 1986 (2) SA 805 (A) at 818G-I
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[29] How a reasonable man arrives at a reasonable suspicion, in Ralekwa v Minister
of Safety and Security4 De Vos J said:
"To decide what is a reasonable suspicion there must be evidence that the arresting officer
formed a suspicion which is objectively sustainable. It was described thus by Jones J in Mabona
and Another v Minister of Law and Order and Others:
'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 this information a reasonable
man would bear in mind that the section authorises drastic police action. It authorises an arrest
on the strength of a suspicion and without the need to swear out a warrant, i.e something which
otherwise would be an invasion of private rights and ... (t)he reasonable man will therefore
analyse and asses the quality of the information at his disposal critically, and he will not accept
it lightly or without checking ii 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".
[30] It is the evidence of colonel Kekana that after he allegedly found the firearm
under a carpet below the brakes of the vehicle that was been driven by the
appellant, he asked the appellant as to who the firearm belongs to. The
appellant responded by telling Kekana that he does not know as who the
firearm belongs to as the motor vehicle belonged to his girlfriend. Kekana
further asked the appellant whether he possesses a license or document that
allows him to be in possession of the firearm. The appellant responded by
telling Kekana that he did not possess one, and Kekana told the appellant that
he was under arrest for possession of firearm and ammunition. Under cross­
examination Kekana conceded that he did not investigate the explanation given
to him because the appellant was in possession, he did not have a license, the
4 2004 (2) SA 342 (T) at 347E-G
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firearm's serial number was scrapped . Further that he would have contacted
the appellant's wife if the firearm had a serial number. He would have contacted
the appellant's wife if the firearm tells him that it belongs to his wife, and that
case he will be able to investigate why the wife left the firearm in the car.
According to Kekana, since the firearm did not have a serial number, it did not
belong to the appellant's wife.
[31] The question is would a reasonable person in Kekana's position and possessed
of the same information have considered that information as good and sufficient
grounds for suspecting that the appellant was guilty of unlawful possession of
a firearm. The mere fact that the appellant was found in possession of an
unlicensed firearm with its serial number erased is not a good and sufficient
grounds to immediately arrest without investigating the essential relevant
circumstances surrounding the matter before coming to the reasonable
suspicion that an offence has been committed.
[32] The appellant's explanation to Kekana was that he knew nothing about the
firearm and that the motor vehicle which he was driving in which the firearm
was allegedly found, belonged to his girlfriend. In my view, a reasonable person
having that information at his/her disposal, would have gone a step further and
asked the appellant about the details of his girlfriend, find out as to how long
had the appellant been in possession of his girlfriend's car, and contact the
girlfriend in order to verify the appellant's version. It is not clear as to what had
informed Kekana that the firearm could only belong to the appellant's wife if its
serial number had not been erased. By stating that he would have contacted
the appellant 's girlfriend if the firearm had a serial number, shows that Kekana
was in a position to have verified that information with the appellant's girlfriend,
15
but chose not to do so based on his unfounded perception. It is clear that
Kekana did not critically analyse and assess the information at his disposal as
given to him by the appellant before forming his suspicion that the appellant
had committed an offence justifying his arrest without a warrant.
[33) In Biye/a v Minister of Police5 Musi AJA said:
(35] What is required is that the arresting officer must form a reasonable suspicion that a
Schedule 1 offence has been committed based on credible and trustworthy information.
Whether that information would later, in a court of law, be found to be inadmissible is neither
here nor there for the determination of whether the arresting officer at the time of the arrest
harboured a reasonable suspicion that the arrested person committed a Schedule 1 offence.
(36] The arresting officer is not obliged to arrest based on a reasonable suspicion because he
or she has a discretion. The discretion to arrest must be exercised properly. Our legal system
sets great store by the liberty of an individual and, therefore, the discretion must be exercised
after taking all the prevailing circumstances into consideration ".
[34) There was a dispute as to whether the alleged firearm was found inside the
vehicle driven by the appellant or whether it has been planted by the police.
There is a photo album depicting where the firearm was allegedly found inside
the appellant's vehicle. However, if the parties were unable to agree on this
issue, it remains in dispute and it was for the respondent to call the author of
the photos and photo album so that his/her version could be tested. The photo
album on its own without the corroborating evidence of its author does not
advance the respondent's case. Kekana could not verify the photo album since
he is not the author of it.
5 [2022] ZASCA 36 {01 April 2022) at paras 35 and 36
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[35] There is a version by the appellant that the other police officers who first
searched his vehicle did not find the firearm. The ammunition was not found by
Kekana, but the police officers who found the alleged ammunition were not
called to verify this, and let their version be tested. Counsel for the appellant
was stopped cross-examining Kekana about why Thantsha when he searched
the vehicle could not find the firearm, and was directed to reserve that question
for Thantsha, but Thantsha was not called to testify and let the appellant's
counsel put the version he wished to put on Thantsha. In my view, the failure
by the respondent to call Thantsha was prejudicial to the appellant's case. The
respondent was aware that counsel for the appellant was told to reserve his
question to Thanstha , but still decided not to call him without giving any reasons
for that. The only inference to be drawn is that the respondent was afraid that
Thantsha might contradict Kekana. Without Thantsha been called to clear what
might be still obscure, in my view, it will remain questionable as to whether the
firearm was found or planted in the appellant's vehicle. Without it been
established where the firearm was found with credible evidence, the respondent
had failed to discharge its onus.
[36] Even if the firearm was found in the appellant's vehicle, Kekana did not exercise
his discretion properly. His discretion was based only on the fact that the
appellant was in possession of the firearm, he did not possess a firearm licence
and the serial number of the firearm was erased. He failed to take all prevailing
circumstances by investigating the appellant's version, and after investigating,
analysing and assessing the quality of that information critically, decide whether
there was a reasonable suspicion that an offence has been committed.
Kekana's reasonable suspicion was not resting on reasonable grounds.
Therefore, the arrest and detention of the appellant was unlawful.
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[37] Turning to the alleged assault claim, the onus is on the appellant to discharge.
The appellant testified that he was assaulted upon his arrival at Mahwelereng
police station whilst they were put into separate rooms. The police assaulted
them forcing them to make a confession that they know about the shooting
incident of the police in Gilead. The police were assaulting the appellants with
their hands and booted feet. A plastic that contained water was also put on his
face. The assault lasted for about 2 hours. The appellant was assaulted on his
body and ribs, but not on his face. The police only stopped assaulting the
appellant when Norman who was in the same room with the appellant passed
on himself.
[38] The appellant was taken to his motor vehicle where they showed him a firearm
that was on the seat of his vehicle. There a white police officer arrived and
started assaulting him, telling the appellant to admit that he knew about the
incident. The white police officer did not assault the appellant that much, and
after that the appellant was taken to the charge office. The appellant was taken
to the cells, later was charged and thereafter he was never assaulted again.
After 3 days he was taken to court where he made his first appearance , and
was legally represented. Under cross-examination the appellant stated that on
his first appearance in court, he had told the presiding magistrate that the police
had assaulted him and was surprised why it was not recorded on the charge
sheet, but the magistrate had only recorded the complaint of the second
accused that he needed to be taken for medical attention as he was feeling
pains. The appellant was also cross-examined about his warning statement
where it has been recorded that the appellant had stated that he did not. have
any injuries.
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[39] The court a quo in dismissing the appellant's claim for alleged assault relied
partly on the appellant's warning statement where the court a quo held that the
appellant had conceded that he was not assaulted or threatened with assault.
Counsel for the respondent had failed to lay the basis before the appellant was
cross-examined on his warning statement. Despite failing to lay basis, the court
a quo permitted counsel for respondent to cross-examine the appellant of his
warning statement. The court a quo was alive to the issue of laying the basis
as counsel for the appellant when he cross-examined Mr Kekana about his
written police statement, he was reminded to first lay the basis. It was during
questioning by the court a quo that the court a quo tried to lay the basis even
though it was not its duty, but the appellant disputed knowing the signatures on
one of the pages and not remembering whether he had made a written police
statement. By disputing knowing the signature and the statement, that should
have ended there, and the court a quo should not have taken that issue any
further, as that seems to be assisting the respondent.
[40] The police officer who allegedly took the appellant written police statement was
not called to testify despite counsel for the appellant having indicated that he
must be called as he wanted to put a version to him. The inference to be drawn
is that the respondent's failure to call that witness was afraid that he might
contradict their version, and the court a quo should not have considered the
appellant's written police statement. The court a quo has therefore misdirected
itself by considering and attaching weight to the appellant's warning statement
in its judgment.
[41] The appellant and the two accused were represented by the same counsel
during their criminal trial in the magistrates' court. Their counsel only placed the
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complaint of accused 2 on record before the presiding magistrate . Since it was
one counsel who was representing the three of them, if there were issues with
the appellant, he would have also placed on record before the presiding
magistrate all the complaints, and that could have been recorded on the charge
sheet like it happened with accused 2. The appellant has failed to call Norman
to corroborate him on the issue of assault, despite testifying that at some stage
the assault took place in Norman's presence. There was no explanation why
Norman who is a vital witness in the alleged assault was not called to testify.
The only inference to be drawn is that the appellant was afraid that Norman
might contradict him. On the assault claim the appellant has failed to discharge
his onus and on this claim, the appeal stands to be dismissed.
[42] Even though in the pretrial minutes the parties have agreed not to separate
merits and quantum, from the record it does not seem that quantum has been
properly dealt with. It will therefore be appropriate to remit the matter to the
court a quo for finalisation of quantum on claim A and B before any available
Judge.
[43] In the result I make the following order:
43.1 On claim A and B the appeal is upheld with costs.
43.2 The order of the court a qua is set aside and substituted with the following:
"The plaintiff's claim for unlawful arrest and detention against the defendant
succeed with costs, and the plaintiff is entitled to such damages he may be able
to prove he sustained due to the unlawful arrest and detention".
43.3 The appeal on claim Dis dismissed.
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43.4 The matter is remitted back to the court a qua for determination of
damages on claim A and B before any other Judge.
I AGREE
I AGREE KGANYAGOJ
JUDGE OF THE HIGH COURT OF SOUTH
AFRICA, LIMPOPO DIVISION,
POLOKWANE
NGOBENIJ
JUDGE OF THE HIGH COURT OF SOUTH
AFRICA, LIMPOPO DIVISION,
POLOKWANE
MAKOTIAJ
ACTING JUDGE OF THE HIGH COURT OF SOUTH
AFRICA, LIMPOPO DIVISION POLO KW ANE
APPEARANCES:
Counsel for the appellant : Adv H Mpe & Adv JT Makhene
Instructed by : Ramaesele Mphahlele Attorneys
Counsel for the respondent : Adv Madavha MB
Instructed by
Date heard
Electronically circulated on : State Attorney Polokwane
: 71h February 2025
: ~3\os{~:}..5" 21